CREDIT TRANSACTIONS: ATTY.
MIGALLOS WEEK 1 1
FIRST DIVISION
[G.R. Nos. 92029-30 : December 20, 1990.]
192 SCRA 507
NICANOR G. DE GUZMAN, JR., Petitioner, vs. HON. COURT OF APPEALS, Former Fifth
Division, HON. REGIONAL TRIAL COURT, National Capital Judicial Region, Br. 48, Manila,
and ENRIQUE KP. TAN, Respondents.
DECISION
GANCAYCO, J.:
A cause of action is the fact or combination of facts which affords a party a right to judicial
interference in his behalf. 1 An action means an ordinary suit in a court of justice, by which one
party prosecutes another for the enforcement or protection of a right, or the prosecution or redress
of a wrong. 2
The cause of action must always consist of two elements: (1) the plaintiff's primary right and the
defendant's corresponding primary duty, whatever may be the subject to which they relate
person, character, property or contract; and (2) the delict or wrongful act or omission of the
defendant, by which the primary right and duty have been violated. 3 The cause of action is
determined not by the prayer of the complaint but by the facts alleged. 4
The term right of action is the right to commence and maintain an action. 5 In the law on pleadings,
right of action is distinguished from cause of action in that the former is a remedial right belonging
to some persons, while the latter is a formal statement of the operative facts that give rise to such
remedial right. The former is a matter of right and depends on the substantive law, while the latter
is a matter of statement and is governed by the law of procedure. 6
The right of action springs from the cause of action, but does not accrue until all the facts which
constitute the cause of action have occurred. 7 When there is an invasion of primary rights, then
and not until then does the adjective or remedial law become operative, and under it arise rights of
action. There can be no right of action until there has been a wrong a violation of a legal right
and it is then given by the adjective law. 8
The herein petition for review on Certiorari of a decision of the Court of Appeals dated January 30,
1990 in CA G.R. No. 22481 9 puts into test the sufficiency of the cause of action of a complaint
filed in the Regional Trial Court of Manila.: nad
The undisputed antecedents are that on September 15, 1988, petitioner filed a complaint for
damages and other equitable reliefs in the trial court, the relevant allegations of which are as
follows:
"3. Plaintiff and defendant have been friends and in the course of this relationship, they
have exchanged mutual favors and accommodations, including discounting of check for
cash.
4. More than seven (7) years ago, several checks were issued by plaintiff to defendant in
exchange for cash which probably amounted to P280,900.00. In due time, these checks
were either fully paid, settled, extinguished or condoned by agreement of the parties,
and for which reason, plaintiff did not anymore redeem the checks precisely because
they have been close and mutual friends.
5.a. Lately, however, plaintiff received from defendant's lawyer a demand
letter dated 1988 supposedly detailing out therein the former's obligation to the
latter, as follows:
Principal Amount P280,900.00
(Value of 66 dishonored checks)
Legal Interest at 235,956.00
1% per Month (For 84
months or 7 years)
Attorney's Collection 51,685.00
Fee (At 10% Only)
TOTAL Amount Due P568,541.00
========
Copy of said letter is attached hereto as Annex A and made an integral part
hereof.
b. The claim of P568,541.00 is not due and owing from the plaintiff to the
defendant because, as already stated, the amounts of the checks issued to
defendant some more than (7) years ago, were either fully paid, settled,
extinguished or treated as condoned by agreement of the parties.
6. In the said letter, Annex A hereof, defendant threatened to "institute the proper action
and hold (plaintiff liable for the consequence," in the following manner:
. . . unfortunately, you had not heeded his (defendant's) request and so we
hereby inform you that this shall definitely be our last letter to you on this
matter and we are giving you a final period of ten (10) days from receipts
hereof to remit full payment of said sum of P568,541.00, otherwise, without
need of further advice to you, we shall institute the proper action and hold you
liable for the consequence.:-cralaw
7. Defendant knows fully well that the sum of P568,541.00 is not wholly or partly due or
owing to him from plaintiff particularly the huge, fantastic, and unwarranted claim for
alleged legal interests in the sum of P235,956.00 which roughly accounts for 84% of the
alleged principal amount being collected by defendant from plaintiff under his ill-tenored
Annex A hereof, and the unwarranted claim for attorney's collection fees of P51,685.00.
8. Plaintiff is very reluctant to file the instant complaint against his defendant friend but
was gravely agitated to do so because of a clearly perceived and palpable injury to him
as unequivocally expressed in defendant's letter, Annex A hereof.
9. In the circumstances given, defendant has kept possession of the alleged checks
amounting to P280,900.00 at the expense of plaintiff and since the obligation thereunder
has either been fully or wholly paid, settled, extinguished, or condoned by agreement of
the parties, defendant holds them without just or legal ground and is bound to return
them to plaintiff.
10. In writing the letter, Annex A hereof and demanding therein an obligation from
plaintiff which is not due and owing from the latter, defendant failed to act with justice,
observe honesty and good faith.
11. To prosecute the instant action, plaintiff has incurred actual expenses in the sum of
at least P15,000.00.
12. In the circumstances herein-above given, defendant acted in a wanton, reckless,
oppressive, or malevolent manner. Hence, exemplary damages in the sum of
P200,000.00 should be imposed against the defendant for the public good, in addition to
other damages claimed herein.
13. Nominal damages should be adjudicated against the defendant in order that the right
of plaintiff which has been invaded by the defendant, may be vindicated or recognized,
and not for the purpose of indemnifying the plaintiff for any loss suffered by the latter.
14. To prosecute the case herein, plaintiff has retained the services of counsel at the
agreed attorney's fees of P75,000.00.
WHEREFORE, it is respectfully prayed that, after due hearing judgment be rendered in
favor of plaintiff and against defendant, as follows:
1. Ordering defendant to pay plaintiff the sum of P15,000.00 as actual or
compensatory damages;
2. Ordering the defendant to pay plaintiff the exemplary damages in the sum
of P200,000.00;
3. Ordering defendant to return to plaintiff the several checks mentioned in
Annex A of the complaint and adjudicating nominal damages in favor of
plaintiff and against the defendant;
4. Ordering defendant to pay plaintiff the sum of P75,000.00 for and as
attorney's fees; and
5. Ordering the defendant to pay the costs of the suit.: nad
Plaintiff prays for other relief just and proper in the premises of the case." 10
On October 8, 1988, private respondent filed a motion to dismiss the complaint for lack of cause of
action and prescription. An opposition thereto was filed by petitioner to which a reply was made by
 CREDIT TRANSACTIONS: ATTY. MIGALLOS WEEK 1 2

private respondent. After a rejoinder was submitted by petitioner, on November 24, 1988 the trial
court dismissed the complaint for failure to state a cause of action. 11

A motion for reconsideration thereof filed by petitioner, which was opposed by private respondent,
and to which a reply was filed by petitioner, was denied by the trial court on March 17, 1989. 12

Hence, petitioner filed a petition for Certiorari and mandamus and other relief in the Court of
Appeals against said orders of the trial court. As earlier stated, on January 30, 1990, the Court of
Appeals rendered its decision dismissing the appeal with costs against petitioner.
Thus, the herein petition whereby petitioner alleges that the trial court committed a grave abuse of
discretion in issuing the questioned orders dated November 24, 1988 and March 17, 1989, and
that the Court of Appeals did likewise in dismissing the appeal of petitioner thereby disregarding a
question of substance not in accord with law.

The petition is impressed with merit.

A reading of the complaint shows that it is therein alleged that more than seven (7) years ago,
several checks were issued by petitioner to private respondent in exchange for cash amounting to
P280,900.00; that in due time, said checks were "either fully paid, settled, extinguished or
condoned by agreement of the parties" so petitioner did not anymore redeem the checks because
of their friendship; that on August 30, 1988, private respondent's lawyer sent a letter of demand to
petitioner to pay said principal amount plus interest and attorney's fees with a total amount due of
P568,541.00, which claim is not due and owing having been settled between the parties; that in
said letter threat of court action was made causing injury to petitioner; that private respondent
illegally withheld the petitioner's checks which should be returned to petitioner; that for private
respondent's act of demanding payment for an obligation not due and for the former's failure to act
with justice, observe honesty and good faith, petitioner prays for relief by way of actual, exemplary
and nominal damages, and also prays that the private respondent be ordered to return to petitioner
the checks mentioned in the complaint, and to pay the costs.

Contrary to the findings of the lower court and the appellate court that the complaint states no
cause of action, this Court finds and so holds that it states a sufficient cause of action.

It must be remembered that when a party files a motion to dismiss the complaint for lack of cause
of action he is deemed to hypothetically admit the allegations thereof.

From the allegation of the complaint in this case it appears that, (1) petitioner has a primary right,
because of having paid his obligation to private respondent, to have the checks he issued to cover
the amount returned to him or otherwise cancelled by private respondent; and (2) the primary right
of was violated when private respondent demanded payment of a settled obligation relying on the
very checks of petitioner he had not returned. Consequently, on account of such demand for
payment for an obligation duly settled, the petitioner thereby suffered damages 13 and should be
afforded such relief as prayed for in the complaint.:-cralaw

Contrary to the observation made by the appellate court, the cause of action had not prescribed.
The cause of action accrued only on August 20, 1988 when in a demand letter for payment private
respondent thereby committed a wrongful act against petitioner. The complaint was filed promptly
on September 15, 1988, well within the four (4) year prescriptive period of an action of this nature.
14

WHEREFORE, the petition is GRANTED and the questioned decision of the Court of Appeals
dated January 30, 1990 as well as the questioned orders of the Regional Trial Court of Manila
dated November 24, 1988 and March 17, 1989, are hereby REVERSED AND SET ASIDE. Let the
records of this case be remanded to the trial court for further proceedings. Costs against private
respondent.
SO ORDERED.
 CREDIT TRANSACTIONS: ATTY. MIGALLOS WEEK 1 3

Republic of the Philippines when he was already within 15 to 30 meters of it. He allegedly slowed down to 30 kilometers per
SUPREME COURT hour, but it was too late.
Manila
SECOND DIVISION The Lingayen police investigated the incident the next day, November 3, 1984. On the basis of
their finding they filed a criminal complaint against the driver, Porfirio Cabil. The case was later
G.R. No. 111127 July 26, 1996 filed with the Lingayen Regional Trial Court. Petitioners Fabre paid Jesus Escano P1,500.00 for
MR. & MRS. ENGRACIO FABRE, JR. and PORFIRIO CABIL, petitioners, the damage to the latter's fence. On the basis of Escano's affidavit of desistance the case against
vs. petitioners Fabre was dismissed.
COURT OF APPEALS, THE WORD FOR THE WORLD CHRISTIAN FELLOWSHIP, INC.,
AMYLINE ANTONIO, JOHN RICHARDS, GONZALO GONZALES, VICENTE V. QUE, JR., ICLI Amyline Antonio, who was seriously injured, brought this case in the RTC of Makati, Metro Manila.
CORDOVA, ARLENE GOJOCCO, ALBERTO ROXAS CORDERO, RICHARD BAUTISTA, As a result of the accident, she is now suffering from paraplegia and is permanently paralyzed
JOCELYN GARCIA, YOLANDA CORDOVA, NOEL ROQUE, EDWARD TAN, ERNESTO from the waist down. During the trial she described the operations she underwent and adduced
NARCISO, ENRIQUETA LOCSIN, FRANCIS NORMAN O. LOPES, JULIUS CAESAR, GARCIA, evidence regarding the cost of her treatment and therapy. Immediately after the accident, she was
ROSARIO MA. V. ORTIZ, MARIETTA C. CLAVO, ELVIE SENIEL, ROSARIO MARA-MARA, taken to the Nazareth Hospital in Baay, Lingayen. As this hospital was not adequately equipped,
TERESITA REGALA, MELINDA TORRES, MARELLA MIJARES, JOSEFA CABATINGAN, she was transferred to the Sto. Nio Hospital, also in the town of Ba-ay, where she was given
MARA NADOC, DIANE MAYO, TESS PLATA, MAYETTE JOCSON, ARLENE Y. MORTIZ, LIZA sedatives. An x-ray was taken and the damage to her spine was determined to be too severe to be
MAYO, CARLOS RANARIO, ROSAMARIA T. RADOC and BERNADETTE treated there. She was therefore brought to Manila, first to the Philippine General Hospital and
FERRER, respondents. later to the Makati Medical Center where she underwent an operation to correct the dislocation of
her spine.
MENDOZA, J.:p
This is a petition for review on certiorari of the decision of the Court of Appeals1 in CA-GR No. In its decision dated April 17, 1989, the trial court found that:
28245, dated September 30, 1992, which affirmed with modification the decision of the Regional No convincing evidence was shown that the minibus was properly checked for travel to a long
Trial Court of Makati, Branch 58, ordering petitioners jointly and severally to pay damages to distance trip and that the driver was properly screened and tested before being admitted for
private respondent Amyline Antonio, and its resolution which denied petitioners' motion for employment. Indeed, all the evidence presented have shown the negligent act of the defendants
reconsideration for lack of merit. which ultimately resulted to the accident subject of this case.

Petitioners Engracio Fabre, Jr. and his wife were owners of a 1982 model Mazda minibus. They Accordingly, it gave judgment for private respondents holding:
used the bus principally in connection with a bus service for school children which they operated in Considering that plaintiffs Word for the World Christian Fellowship, Inc. and Ms. Amyline Antonio
Manila. The couple had a driver, Porfirio J. Cabil, whom they hired in 1981, after trying him out for were the only ones who adduced evidence in support of their claim for damages, the Court is
two weeks, His job was to take school children to and from the St. Scholastica's College in Malate, therefore not in a position to award damages to the other plaintiffs.
Manila.
WHEREFORE, premises considered, the Court hereby renders judgment against defendants Mr. &
On November 2, 1984 private respondent Word for the World Christian Fellowship Inc. (WWCF) Mrs. Engracio Fabre, Jr. and Porfirio Cabil y Jamil pursuant to articles 2176 and 2180 of the Civil
arranged with petitioners for the transportation of 33 members of its Young Adults Ministry from Code of the Philippines and said defendants are ordered to pay jointly and severally to the
Manila to La Union and back in consideration of which private respondent paid petitioners the plaintiffs the following amount:
amount of P3,000.00. 1) P93,657.11 as compensatory and actual damages;
2) P500,000.00 as the reasonable amount of loss of earning capacity of
The group was scheduled to leave on November 2, 1984, at 5:00 o'clock in the afternoon. plaintiff Amyline Antonio;
However, as several members of the party were late, the bus did not leave the Tropical Hut at the 3) P20,000.00 as moral damages;
corner of Ortigas Avenue and EDSA until 8:00 o'clock in the evening. Petitioner Porfirio Cabil 4) P20,000.00 as exemplary damages; and
drove the minibus. 5) 25% of the recoverable amount as attorney's fees;
6) Costs of suit.
The usual route to Caba, La Union was through Carmen, Pangasinan. However, the bridge at SO ORDERED.
Carmen was under repair, sot hat petitioner Cabil, who was unfamiliar with the area (it being his
first trip to La Union), was forced to take a detour through the town of Baay in Lingayen, The Court of Appeals affirmed the decision of the trial court with respect to Amyline Antonio but
Pangasinan. At 11:30 that night, petitioner Cabil came upon a sharp curve on the highway, running dismissed it with respect to the other plaintiffs on the ground that they failed to prove their
on a south to east direction, which he described as "siete." The road was slippery because it was respective claims. The Court of Appeals modified the award of damages as follows:
raining, causing the bus, which was running at the speed of 50 kilometers per hour, to skid to the 1) P93,657.11 as actual damages;
left road shoulder. The bus hit the left traffic steel brace and sign along the road and rammed the 2) P600,000.00 as compensatory damages;
fence of one Jesus Escano, then turned over and landed on its left side, coming to a full stop only 3) P50,000.00 as moral damages;
after a series of impacts. The bus came to rest off the road. A coconut tree which it had hit fell on it 4) P20,000.00 as exemplary damages;
and smashed its front portion. 5) P10,000.00 as attorney's fees; and
6) Costs of suit.
Several passengers were injured. Private respondent Amyline Antonio was thrown on the floor of
the bus and pinned down by a wooden seat which came down by a wooden seat which came off The Court of Appeals sustained the trial court's finding that petitioner Cabil failed to exercise due
after being unscrewed. It took three persons to safely remove her from this portion. She was in care and precaution in the operation of his vehicle considering the time and the place of the
great pain and could not move. accident. The Court of Appeals held that the Fabres were themselves presumptively negligent.
The driver, petitioner Cabil, claimed he did not see the curve until it was too late. He said he was Hence, this petition. Petitioners raise the following issues:
not familiar with the area and he could not have seen the curve despite the care he took in driving I. WHETHER OR NOT PETITIONERS WERE
the bus, because it was dark and there was no sign on the road. He said that he saw the curve NEGLIGENT.

II. WHETHER OF NOT PETITIONERS WERE LIABLE
FOR THE INJURIES SUFFERED BY PRIVATE
RESPONDENTS.
III WHETHER OR NOT DAMAGES CAN BE AWARDED
AND IN THE POSITIVE, UP TO WHAT EXTENT.
Petitioners challenge the propriety of the award of compensatory damages in the amount of
P600,000.00. It is insisted that, on the assumption that petitioners are liable an award of
P600,000.00 is unconscionable and highly speculative. Amyline Antonio testified that she was a
casual employee of a company called "Suaco," earning P1,650.00 a month, and a dealer of Avon
products, earning an average of P1,000.00 monthly. Petitioners contend that as casual employees
do not have security of tenure, the award of P600,000.00, considering Amyline Antonio's earnings,
is without factual basis as there is no assurance that she would be regularly earning these
amounts.
With the exception of the award of damages, the petition is devoid of merit.
First, it is unnecessary for our purpose to determine whether to decide this case on the theory that
petitioners are liable for breach of contract of carriage or culpa contractual or on the theory
of quasi delict or culpa aquiliana as both the Regional Trial Court and the Court of Appeals held,
for although the relation of passenger and carrier is "contractual both in origin and nature,"
nevertheless "the act that breaks the contract may be also a tort." 2 In either case, the question is
whether the bus driver, petitioner Porfirio Cabil, was negligent.
The finding that Cabil drove his bus negligently, while his employer, the Fabres, who owned the
bus, failed to exercise the diligence of a good father of the family in the selection and supervision
of their employee is fully supported by the evidence on record. These factual findings of the two
courts we regard as final and conclusive, supported as they are by the evidence. Indeed, it was
admitted by Cabil that on the night in question, it was raining, and as a consequence, the road was
slippery, and it was dark. He averred these facts to justify his failure to see that there lay a sharp
curve ahead. However, it is undisputed that Cabil drove his bus at the speed of 50 kilometers per
hour and only slowed down when he noticed the curve some 15 to 30 meters ahead. 3 By then it
was too late for him to avoid falling off the road. Given the conditions of the road and considering
that the trip was Cabil's first one outside of Manila, Cabil should have driven his vehicle at a
moderate speed. There is testimony 4 that the vehicles passing on that portion of the road should
only be running 20 kilometers per hour, so that at 50 kilometers per hour, Cabil was running at a
very high speed.
Considering the foregoing the fact that it was raining and the road was slippery, that it was dark,
that he drove his bus at 50 kilometers an hour when even on a good day the normal speed was
only 20 kilometers an hour, and that he was unfamiliar with the terrain, Cabil was grossly negligent
and should be held liable for the injuries suffered by private respondent Amyline Antonio.
Pursuant to Arts. 2176 and 2180 of the Civil Code his negligence gave rise to the presumption that
his employers, the Fabres, were themselves negligent in the selection and supervisions of their
employee.
Due diligence in selection of employees is not satisfied by finding that the applicant possessed a
professional driver's license. The employer should also examine the applicant for his qualifications,
experience and record of service. 5 Due diligence in supervision, on the other hand, requires the
formulation of rules and regulations for the guidance of employees and issuance of proper
instructions as well as actual implementation and monitoring of consistent compliance with the
rules.6
In the case at bar, the Fabres, in allowing Cabil to drive the bus to La Union, apparently did not
consider the fact that Cabil had been driving for school children only, from their homes to the St.
Scholastica's College in Metro Manila. 7They had hired him only after a two-week apprenticeship.
They had hired him only after a two-week apprenticeship. They had tested him for certain matters,
such as whether he could remember the names of the children he would be taking to school, which
were irrelevant to his qualification to drive on a long distance travel, especially considering that the
trip to La Union was his first. The existence of hiring procedures and supervisory policies cannot
be casually invoked to overturn the presumption of negligence on the part of an employer. 8
CREDIT TRANSACTIONS: ATTY. MIGALLOS WEEK 1 4
Petitioners argue that they are not liable because (1) an earlier departure (made impossible by the
congregation's delayed meeting) could have a averted the mishap and (2) under the contract, the
WWCF was directly responsible for the conduct of the trip. Neither of these contentions hold water.
The hour of departure had not been fixed. Even if it had been, the delay did not bear directly on the
cause of the accident. With respect to the second contention, it was held in an early case that:
[A] person who hires a public automobile and gives the driver directions as to the place to which he
wishes to be conveyed, but exercises no other control over the conduct of the driver, is not
responsible for acts of negligence of the latter or prevented from recovering for injuries suffered
from a collision between the automobile and a train, caused by the negligence or the automobile
driver. 9
As already stated, this case actually involves a contract of carriage. Petitioners, the Fabres, did not
have to be engaged in the business of public transportation for the provisions of the Civil Code on
common carriers to apply to them. As this Court has held: 10
Art. 1732. Common carriers are persons, corporations, firms or associations
engaged in the business of carrying or transporting passengers or goods or
both, by land, water, or air for compensation, offering their services to the
public.
The above article makes no distinction between one whose principal business
activity is the carrying of persons or goods or both, and one who does such
carrying only as an ancillary activity (in local idiom, as "a sideline"). Article
1732 also carefully avoids making any distinction between a person or
enterprise offering transportation service on a regular or scheduled basis and
one offering such service on an occasional, episodic or unscheduled basis.
Neither does Article 1732 distinguish between a carrier offering its services to
the "general public," i.e., the general community or population, and one who
offers services or solicits business only from a narrow segment of the general
population. We think that Article 1732 deliberately refrained from making such
distinctions.
As common carriers, the Fabres were found to exercise "extraordinary
diligence" for the safe transportation of the passengers to their destination.
This duty of care is not excused by proof that they exercise the diligence of a
good father of the family in the selection and supervision of their employee. As
Art. 1759 of the Code provides:
Common carriers are liable for the death of or injuries to passengers through
the negligence or willful acts of the former's employees although such
employees may have acted beyond the scope of their authority or in violation
of the orders of the common carriers.
This liability of the common carriers does not cease upon proof that they
exercised all the diligence of a good father of a family in the selection and
supervision of their employees.
The same circumstances detailed above, supporting the finding of the trial court and of the
appellate court that petitioners are liable under Arts. 2176 and 2180 for quasi delict, fully justify
findings them guilty of breach of contract of carriage under Arts. 1733, 1755 and 1759 of the Civil
Code.
Secondly, we sustain the award of damages in favor of Amyline Antonio. However, we think the
Court of Appeals erred in increasing the amount of compensatory damages because private
respondents did not question this award as inadequate. 11 To the contrary, the award of
P500,000.00 for compensatory damages which the Regional Trial Court made is reasonable
considering the contingent nature of her income as a casual employee of a company and as
distributor of beauty products and the fact that the possibility that she might be able to work again
has not been foreclosed. In fact she testified that one of her previous employers had expressed
willingness to employ her again.
With respect to the other awards, while the decisions of the trial court and the Court of Appeals do
not sufficiently indicate the factual and legal basis for them, we find that they are nevertheless
supported by evidence in the records of this case. Viewed as an action for quasi delict, this case
 CREDIT TRANSACTIONS: ATTY. MIGALLOS WEEK 1 5

falls squarely within the purview of Art. 2219(2) providing for the payment of moral damages in the plaintiff there to recover from both the carrier and the driver, thus, justifying the holding that the
cases of quasi delict. On the theory that petitioners are liable for breach of contract of carriage, the carrier and the driver were jointly and severally liable because their separate and distinct acts
award of moral damages is authorized by Art. 1764, in relation to Art. 2220, since Cabil's gross concurred to produce the same injury.
negligence amounted to bad faith.12 Amyline Antonio's testimony, as well as the testimonies of her
father and copassengers, fully establish the physical suffering and mental anguish she endured as WHEREFORE, the decision of the Court of Appeals is AFFIRMED with MODIFICATION as to
a result of the injuries caused by petitioners' negligence. award of damages. Petitioners are ORDERED to PAY jointly and severally the private respondent
Amyline Antonio the following amounts:
The award of exemplary damages and attorney's fees was also properly made. However, for the 1) P93,657.11 as actual damages;
same reason that it was error for the appellate court to increase the award of compensatory 2) P500,000.00 as the reasonable amount of loss of earning capacity of plaintiff Amyline Antonio;
damages, we hold that it was also error for it to increase the award of moral damages and reduce 3) P20,000.00 as moral damages;
the award of attorney's fees, inasmuch as private respondents, in whose favor the awards were 4) P20,000.00 as exemplary damages;
made, have not appealed. 13 5) 25% of the recoverable amount as attorney's fees; and
6) costs of suit.
As above stated, the decision of the Court of Appeals can be sustained either on the theory SO ORDERED.
of quasi delict or on that of breach of contract. The question is whether, as the two courts below
held, petitioners, who are the owners and driver of the bus, may be made to respond jointly and
severally to private respondent. We hold that they may be. In Dangwa Trans. Co. Inc. v. Court of
Appeals, 14 on facts similar to those in this case, this Court held the bus company and the driver
jointly and severally liable for damages for injuries suffered by a passenger. Again, in Bachelor
Express, Inc. v. Court of
Appeals 15 a driver found negligent in failing to stop the bus in order to let off passengers when a
fellow passenger ran amuck, as a result of which the passengers jumped out of the speeding bus
and suffered injuries, was held also jointly and severally liable with the bus company to the injured
passengers.

The same rule of liability was applied in situations where the negligence of the driver of the bus on
which plaintiff was riding concurred with the negligence of a third party who was the driver of
another vehicle, thus causing an accident. In Anuran v. Buo, 16 Batangas Laguna Tayabas Bus
Co. v. Intermediate Appellate Court, 17 and Metro Manila Transit Corporation v. Court of
Appeals, 18 the bus company, its driver, the operator of the other vehicle and the driver of the
vehicle were jointly and severally held liable to the injured passenger or the latters' heirs. The basis
of this allocation of liability was explained in Viluan v. Court of Appeals, 19 thus:
Nor should it make any difference that the liability of petitioner [bus owner]
springs from contract while that of respondents [owner and driver of other
vehicle] arises from quasi-delict. As early as 1913, we already ruled
in Gutierrez vs. Gutierrez, 56 Phil. 177, that in case of injury to a passenger
due to the negligence of the driver of the bus on which he was riding and of
the driver of another vehicle, the drivers as well as the owners of the two
vehicles are jointly and severally liable for damages. Some members of the
Court, though, are of the view that under the circumstances they are liable
on quasi-delict. 20

It is true that in Philippine Rabbit Bus Lines, Inc. v. Court of Appeals 21 this Court exonerated the
jeepney driver from liability to the injured passengers and their families while holding the owners of
the jeepney jointly and severally liable, but that is because that case was expressly tried and
decided exclusively on the theory of culpa contractual. As this Court there explained:
The trial court was therefore right in finding that Manalo (the driver) and spouses Mangune and
Carreon (the jeepney owners) were negligent. However, its ruling that spouses Mangune and
Carreon are jointly and severally liable with Manalo is erroneous. The driver cannot be held jointly
and severally liable with carrier in case of breach of the contract of carriage. The rationale behind
this is readily discernible. Firstly, the contract of carriage is between the carrier is exclusively
responsible therefore to the passenger, even if such breach be due to the negligence of his driver
(see Viluan v. The Court of Appeals, et al., G.R. Nos. L-21477-81, April 29, 1966, 16
SCRA 742). 22

As in the case of BLTB, private respondents in this case and her coplaintiffs did not stake out their
claim against the carrier and the driver exclusively on one theory, much less on that of breach of
contract alone. After all, it was permitted for them to allege alternative causes of action and join as
many parties as may be liable on such causes of action 23 so long as private respondent and her
coplaintiffs do not recover twice for the same injury. What is clear from the cases is the intent of

Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-12191 October 14, 1918
JOSE CANGCO, plaintiff-appellant,
vs.
MANILA RAILROAD CO., defendant-appellee.
Ramon Sotelo for appellant.
Kincaid & Hartigan for appellee.
FISHER, J.:
At the time of the occurrence which gave rise to this litigation the plaintiff, Jose Cangco, was in
the employment of Manila Railroad Company in the capacity of clerk, with a monthly wage of
P25. He lived in the pueblo of San Mateo, in the province of Rizal, which is located upon the line
of the defendant railroad company; and in coming daily by train to the company's office in the
city of Manila where he worked, he used a pass, supplied by the company, which entitled him to
ride upon the company's trains free of charge. Upon the occasion in question, January 20, 1915,
the plaintiff arose from his seat in the second class-car where he was riding and, making, his exit
through the door, took his position upon the steps of the coach, seizing the upright guardrail with
his right hand for support.
On the side of the train where passengers alight at the San Mateo station there is a cement
platform which begins to rise with a moderate gradient some distance away from the company's
office and extends along in front of said office for a distance sufficient to cover the length of
several coaches. As the train slowed down another passenger, named Emilio Zuiga, also an
employee of the railroad company, got off the same car, alighting safely at the point where the
platform begins to rise from the level of the ground. When the train had proceeded a little farther
the plaintiff Jose Cangco stepped off also, but one or both of his feet came in contact with a sack
of watermelons with the result that his feet slipped from under him and he fell violently on the
platform. His body at once rolled from the platform and was drawn under the moving car, where
his right arm was badly crushed and lacerated. It appears that after the plaintiff alighted from the
train the car moved forward possibly six meters before it came to a full stop.
The accident occurred between 7 and 8 o'clock on a dark night, and as the railroad station was
lighted dimly by a single light located some distance away, objects on the platform where the
accident occurred were difficult to discern especially to a person emerging from a lighted car.
The explanation of the presence of a sack of melons on the platform where the plaintiff alighted
is found in the fact that it was the customary season for harvesting these melons and a large lot
had been brought to the station for the shipment to the market. They were contained in
numerous sacks which has been piled on the platform in a row one upon another. The testimony
shows that this row of sacks was so placed of melons and the edge of platform; and it is clear
that the fall of the plaintiff was due to the fact that his foot alighted upon one of these melons at
the moment he stepped upon the platform. His statement that he failed to see these objects in
the darkness is readily to be credited.
The plaintiff was drawn from under the car in an unconscious condition, and it appeared that the
injuries which he had received were very serious. He was therefore brought at once to a certain
hospital in the city of Manila where an examination was made and his arm was amputated. The
result of this operation was unsatisfactory, and the plaintiff was then carried to another hospital
where a second operation was performed and the member was again amputated higher up near
the shoulder. It appears in evidence that the plaintiff expended the sum of P790.25 in the form of
medical and surgical fees and for other expenses in connection with the process of his curation.
Upon August 31, 1915, he instituted this proceeding in the Court of First Instance of the city of
Manila to recover damages of the defendant company, founding his action upon the negligence
CREDIT TRANSACTIONS: ATTY. MIGALLOS WEEK 1 6
of the servants and employees of the defendant in placing the sacks of melons upon the
platform and leaving them so placed as to be a menace to the security of passenger alighting
from the company's trains. At the hearing in the Court of First Instance, his Honor, the trial judge,
found the facts substantially as above stated, and drew therefrom his conclusion to the effect
that, although negligence was attributable to the defendant by reason of the fact that the sacks
of melons were so placed as to obstruct passengers passing to and from the cars, nevertheless,
the plaintiff himself had failed to use due caution in alighting from the coach and was therefore
precluded form recovering. Judgment was accordingly entered in favor of the defendant
company, and the plaintiff appealed.
It can not be doubted that the employees of the railroad company were guilty of negligence in
piling these sacks on the platform in the manner above stated; that their presence caused the
plaintiff to fall as he alighted from the train; and that they therefore constituted an effective legal
cause of the injuries sustained by the plaintiff. It necessarily follows that the defendant company
is liable for the damage thereby occasioned unless recovery is barred by the plaintiff's own
contributory negligence. In resolving this problem it is necessary that each of these conceptions
of liability, to-wit, the primary responsibility of the defendant company and the contributory
negligence of the plaintiff should be separately examined.
It is important to note that the foundation of the legal liability of the defendant is the contract of
carriage, and that the obligation to respond for the damage which plaintiff has suffered arises, if
at all, from the breach of that contract by reason of the failure of defendant to exercise due care
in its performance. That is to say, its liability is direct and immediate, differing essentially, in legal
viewpoint from that presumptive responsibility for the negligence of its servants, imposed by
article 1903 of the Civil Code, which can be rebutted by proof of the exercise of due care in their
selection and supervision. Article 1903 of the Civil Code is not applicable to obligations arising
ex contractu, but only to extra-contractual obligations or to use the technical form of
expression, that article relates only to culpa aquiliana and not to culpa contractual.
Manresa (vol. 8, p. 67) in his commentaries upon articles 1103 and 1104 of the Civil Code,
clearly points out this distinction, which was also recognized by this Court in its decision in the
case of Rakes vs. Atlantic, Gulf and Pacific Co. (7 Phil. rep., 359). In commenting upon article
1093 Manresa clearly points out the difference between "culpa, substantive and independent,
which of itself constitutes the source of an obligation between persons not formerly connected by
any legal tie" and culpa considered as an accident in the performance of an obligation already
existing . . . ."
In the Rakes case (supra) the decision of this court was made to rest squarely upon the
proposition that article 1903 of the Civil Code is not applicable to acts of negligence which
constitute the breach of a contract.
Upon this point the Court said:
The acts to which these articles [1902 and 1903 of the Civil Code] are applicable are
understood to be those not growing out of pre-existing duties of the parties to one
another. But where relations already formed give rise to duties, whether springing from
contract or quasi-contract, then breaches of those duties are subject to article 1101,
1103, and 1104 of the same code. (Rakes vs. Atlantic, Gulf and Pacific Co., 7 Phil.
Rep., 359 at 365.)
This distinction is of the utmost importance. The liability, which, under the Spanish law, is, in
certain cases imposed upon employers with respect to damages occasioned by the negligence
of their employees to persons to whom they are not bound by contract, is not based, as in the
English Common Law, upon the principle of respondeat superior if it were, the master would
be liable in every case and unconditionally but upon the principle announced in article 1902 of
the Civil Code, which imposes upon all persons who by their fault or negligence, do injury to
another, the obligation of making good the damage caused. One who places a powerful
automobile in the hands of a servant whom he knows to be ignorant of the method of managing
such a vehicle, is himself guilty of an act of negligence which makes him liable for all the
consequences of his imprudence. The obligation to make good the damage arises at the very

instant that the unskillful servant, while acting within the scope of his employment causes the
injury. The liability of the master is personal and direct. But, if the master has not been guilty of
any negligence whatever in the selection and direction of the servant, he is not liable for the acts
of the latter, whatever done within the scope of his employment or not, if the damage done by
the servant does not amount to a breach of the contract between the master and the person
injured.
It is not accurate to say that proof of diligence and care in the selection and control of the
servant relieves the master from liability for the latter's acts on the contrary, that proof shows
that the responsibility has never existed. As Manresa says (vol. 8, p. 68) the liability arising from
extra-contractual culpa is always based upon a voluntary act or omission which, without willful
intent, but by mere negligence or inattention, has caused damage to another. A master who
exercises all possible care in the selection of his servant, taking into consideration the
qualifications they should possess for the discharge of the duties which it is his purpose to
confide to them, and directs them with equal diligence, thereby performs his duty to third
persons to whom he is bound by no contractual ties, and he incurs no liability whatever if, by
reason of the negligence of his servants, even within the scope of their employment, such third
person suffer damage. True it is that under article 1903 of the Civil Code the law creates
a presumption that he has been negligent in the selection or direction of his servant, but the
presumption is rebuttable and yield to proof of due care and diligence in this respect.
The supreme court of Porto Rico, in interpreting identical provisions, as found in the Porto Rico
Code, has held that these articles are applicable to cases of extra-contractual culpa exclusively.
(Carmona vs. Cuesta, 20 Porto Rico Reports, 215.)
This distinction was again made patent by this Court in its decision in the case of
Bahia vs. Litonjua and Leynes, (30 Phil. rep., 624), which was an action brought upon the theory
of the extra-contractual liability of the defendant to respond for the damage caused by the
carelessness of his employee while acting within the scope of his employment. The Court, after
citing the last paragraph of article 1903 of the Civil Code, said:
From this article two things are apparent: (1) That when an injury is caused by the
negligence of a servant or employee there instantly arises a presumption of law that
there was negligence on the part of the master or employer either in selection of the
servant or employee, or in supervision over him after the selection, or both; and (2)
that that presumption is juris tantum and not juris et de jure, and consequently, may be
rebutted. It follows necessarily that if the employer shows to the satisfaction of the
court that in selection and supervision he has exercised the care and diligence of a
good father of a family, the presumption is overcome and he is relieved from liability.
This theory bases the responsibility of the master ultimately on his own negligence
and not on that of his servant. This is the notable peculiarity of the Spanish law of
negligence. It is, of course, in striking contrast to the American doctrine that, in
relations with strangers, the negligence of the servant in conclusively the negligence
of the master.
The opinion there expressed by this Court, to the effect that in case of extra-
contractual culpa based upon negligence, it is necessary that there shall have been some fault
attributable to the defendant personally, and that the last paragraph of article 1903 merely
establishes a rebuttable presumption, is in complete accord with the authoritative opinion of
Manresa, who says (vol. 12, p. 611) that the liability created by article 1903 is imposed by
reason of the breach of the duties inherent in the special relations of authority or superiority
existing between the person called upon to repair the damage and the one who, by his act or
omission, was the cause of it.
On the other hand, the liability of masters and employers for the negligent acts or omissions of
their servants or agents, when such acts or omissions cause damages which amount to the
breach of a contact, is not based upon a mere presumption of the master's negligence in their
selection or control, and proof of exercise of the utmost diligence and care in this regard does
not relieve the master of his liability for the breach of his contract.
CREDIT TRANSACTIONS: ATTY. MIGALLOS WEEK 1 7
Every legal obligation must of necessity be extra-contractual or contractual. Extra-contractual
obligation has its source in the breach or omission of those mutual duties which civilized society
imposes upon it members, or which arise from these relations, other than contractual, of certain
members of society to others, generally embraced in the concept of status. The legal rights of
each member of society constitute the measure of the corresponding legal duties, mainly
negative in character, which the existence of those rights imposes upon all other members of
society. The breach of these general duties whether due to willful intent or to mere inattention, if
productive of injury, give rise to an obligation to indemnify the injured party. The fundamental
distinction between obligations of this character and those which arise from contract, rests upon
the fact that in cases of non-contractual obligation it is the wrongful or negligent act or omission
itself which creates the vinculum juris, whereas in contractual relations the vinculum exists
independently of the breach of the voluntary duty assumed by the parties when entering into the
contractual relation.
With respect to extra-contractual obligation arising from negligence, whether of act or omission,
it is competent for the legislature to elect and our Legislature has so elected whom such an
obligation is imposed is morally culpable, or, on the contrary, for reasons of public policy, to
extend that liability, without regard to the lack of moral culpability, so as to include responsibility
for the negligence of those person who acts or mission are imputable, by a legal fiction, to others
who are in a position to exercise an absolute or limited control over them. The legislature which
adopted our Civil Code has elected to limit extra-contractual liability with certain well-defined
exceptions to cases in which moral culpability can be directly imputed to the persons to be
charged. This moral responsibility may consist in having failed to exercise due care in the
selection and control of one's agents or servants, or in the control of persons who, by reason of
their status, occupy a position of dependency with respect to the person made liable for their
conduct.
The position of a natural or juridical person who has undertaken by contract to render service to
another, is wholly different from that to which article 1903 relates. When the sources of the
obligation upon which plaintiff's cause of action depends is a negligent act or omission, the
burden of proof rests upon plaintiff to prove the negligence if he does not his action fails. But
when the facts averred show a contractual undertaking by defendant for the benefit of plaintiff,
and it is alleged that plaintiff has failed or refused to perform the contract, it is not necessary for
plaintiff to specify in his pleadings whether the breach of the contract is due to willful fault or to
negligence on the part of the defendant, or of his servants or agents. Proof of the contract and of
its nonperformance is sufficient prima facie to warrant a recovery.
As a general rule . . . it is logical that in case of extra-contractual culpa, a suing
creditor should assume the burden of proof of its existence, as the only fact upon
which his action is based; while on the contrary, in a case of negligence which
presupposes the existence of a contractual obligation, if the creditor shows that it
exists and that it has been broken, it is not necessary for him to prove negligence.
(Manresa, vol. 8, p. 71 [1907 ed., p. 76]).
As it is not necessary for the plaintiff in an action for the breach of a contract to show that the
breach was due to the negligent conduct of defendant or of his servants, even though such be in
fact the actual cause of the breach, it is obvious that proof on the part of defendant that the
negligence or omission of his servants or agents caused the breach of the contract would not
constitute a defense to the action. If the negligence of servants or agents could be invoked as a
means of discharging the liability arising from contract, the anomalous result would be that
person acting through the medium of agents or servants in the performance of their contracts,
would be in a better position than those acting in person. If one delivers a valuable watch to
watchmaker who contract to repair it, and the bailee, by a personal negligent act causes its
destruction, he is unquestionably liable. Would it be logical to free him from his liability for the
breach of his contract, which involves the duty to exercise due care in the preservation of the
watch, if he shows that it was his servant whose negligence caused the injury? If such a theory
could be accepted, juridical persons would enjoy practically complete immunity from damages
arising from the breach of their contracts if caused by negligent acts as such juridical persons
can of necessity only act through agents or servants, and it would no doubt be true in most

instances that reasonable care had been taken in selection and direction of such servants. If one
delivers securities to a banking corporation as collateral, and they are lost by reason of the
negligence of some clerk employed by the bank, would it be just and reasonable to permit the
bank to relieve itself of liability for the breach of its contract to return the collateral upon the
payment of the debt by proving that due care had been exercised in the selection and direction
of the clerk?
This distinction between culpa aquiliana, as the source of an obligation, and culpa contractual as
a mere incident to the performance of a contract has frequently been recognized by the supreme
court of Spain. (Sentencias of June 27, 1894; November 20, 1896; and December 13, 1896.) In
the decisions of November 20, 1896, it appeared that plaintiff's action arose ex contractu, but
that defendant sought to avail himself of the provisions of article 1902 of the Civil Code as a
defense. The Spanish Supreme Court rejected defendant's contention, saying:
These are not cases of injury caused, without any pre-existing obligation, by fault or
negligence, such as those to which article 1902 of the Civil Code relates, but of
damages caused by the defendant's failure to carry out the undertakings imposed by
the contracts . . . .
A brief review of the earlier decision of this court involving the liability of employers for damage
done by the negligent acts of their servants will show that in no case has the court ever decided
that the negligence of the defendant's servants has been held to constitute a defense to an
action for damages for breach of contract.
In the case of Johnson vs. David (5 Phil. Rep., 663), the court held that the owner of a carriage
was not liable for the damages caused by the negligence of his driver. In that case the court
commented on the fact that no evidence had been adduced in the trial court that the defendant
had been negligent in the employment of the driver, or that he had any knowledge of his lack of
skill or carefulness.
In the case of Baer Senior & Co's Successors vs. Compania Maritima (6 Phil. Rep., 215), the
plaintiff sued the defendant for damages caused by the loss of a barge belonging to plaintiff
which was allowed to get adrift by the negligence of defendant's servants in the course of the
performance of a contract of towage. The court held, citing Manresa (vol. 8, pp. 29, 69) that if the
"obligation of the defendant grew out of a contract made between it and the plaintiff . . . we do
not think that the provisions of articles 1902 and 1903 are applicable to the case."
In the case of Chapman vs. Underwood (27 Phil. Rep., 374), plaintiff sued the defendant to
recover damages for the personal injuries caused by the negligence of defendant's chauffeur
while driving defendant's automobile in which defendant was riding at the time. The court found
that the damages were caused by the negligence of the driver of the automobile, but held that
the master was not liable, although he was present at the time, saying:
. . . unless the negligent acts of the driver are continued for a length of time as to give
the owner a reasonable opportunity to observe them and to direct the driver to desist
therefrom. . . . The act complained of must be continued in the presence of the owner
for such length of time that the owner by his acquiescence, makes the driver's acts his
own.
In the case of Yamada vs. Manila Railroad Co. and Bachrach Garage & Taxicab Co. (33 Phil.
Rep., 8), it is true that the court rested its conclusion as to the liability of the defendant upon
article 1903, although the facts disclosed that the injury complaint of by plaintiff constituted a
breach of the duty to him arising out of the contract of transportation. The express ground of the
decision in this case was that article 1903, in dealing with the liability of a master for the
negligent acts of his servants "makes the distinction between private individuals and public
enterprise;" that as to the latter the law creates a rebuttable presumption of negligence in the
selection or direction of servants; and that in the particular case the presumption of negligence
had not been overcome.
CREDIT TRANSACTIONS: ATTY. MIGALLOS WEEK 1 8
It is evident, therefore that in its decision Yamada case, the court treated plaintiff's action as
though founded in tort rather than as based upon the breach of the contract of carriage, and an
examination of the pleadings and of the briefs shows that the questions of law were in fact
discussed upon this theory. Viewed from the standpoint of the defendant the practical result
must have been the same in any event. The proof disclosed beyond doubt that the defendant's
servant was grossly negligent and that his negligence was the proximate cause of plaintiff's
injury. It also affirmatively appeared that defendant had been guilty of negligence in its failure to
exercise proper discretion in the direction of the servant. Defendant was, therefore, liable for the
injury suffered by plaintiff, whether the breach of the duty were to be regarded as
constituting culpa aquiliana or culpa contractual. As Manresa points out (vol. 8, pp. 29 and 69)
whether negligence occurs an incident in the course of the performance of a contractual
undertaking or its itself the source of an extra-contractual undertaking obligation, its essential
characteristics are identical. There is always an act or omission productive of damage due to
carelessness or inattention on the part of the defendant. Consequently, when the court holds
that a defendant is liable in damages for having failed to exercise due care, either directly, or in
failing to exercise proper care in the selection and direction of his servants, the practical result is
identical in either case. Therefore, it follows that it is not to be inferred, because the court held in
the Yamada case that defendant was liable for the damages negligently caused by its servants
to a person to whom it was bound by contract, and made reference to the fact that the defendant
was negligent in the selection and control of its servants, that in such a case the court would
have held that it would have been a good defense to the action, if presented squarely upon the
theory of the breach of the contract, for defendant to have proved that it did in fact exercise care
in the selection and control of the servant.
The true explanation of such cases is to be found by directing the attention to the relative
spheres of contractual and extra-contractual obligations. The field of non- contractual obligation
is much more broader than that of contractual obligations, comprising, as it does, the whole
extent of juridical human relations. These two fields, figuratively speaking, concentric; that is to
say, the mere fact that a person is bound to another by contract does not relieve him from extra-
contractual liability to such person. When such a contractual relation exists the obligor may
break the contract under such conditions that the same act which constitutes the source of an
extra-contractual obligation had no contract existed between the parties.
The contract of defendant to transport plaintiff carried with it, by implication, the duty to carry him
in safety and to provide safe means of entering and leaving its trains (civil code, article 1258).
That duty, being contractual, was direct and immediate, and its non-performance could not be
excused by proof that the fault was morally imputable to defendant's servants.
The railroad company's defense involves the assumption that even granting that the negligent
conduct of its servants in placing an obstruction upon the platform was a breach of its
contractual obligation to maintain safe means of approaching and leaving its trains, the direct
and proximate cause of the injury suffered by plaintiff was his own contributory negligence in
failing to wait until the train had come to a complete stop before alighting. Under the doctrine of
comparative negligence announced in the Rakes case (supra), if the accident was caused by
plaintiff's own negligence, no liability is imposed upon defendant's negligence and plaintiff's
negligence merely contributed to his injury, the damages should be apportioned. It is, therefore,
important to ascertain if defendant was in fact guilty of negligence.
It may be admitted that had plaintiff waited until the train had come to a full stop before alighting,
the particular injury suffered by him could not have occurred. Defendant contends, and cites
many authorities in support of the contention, that it is negligence per se for a passenger to
alight from a moving train. We are not disposed to subscribe to this doctrine in its absolute form.
We are of the opinion that this proposition is too badly stated and is at variance with the
experience of every-day life. In this particular instance, that the train was barely moving when
plaintiff alighted is shown conclusively by the fact that it came to stop within six meters from the
place where he stepped from it. Thousands of person alight from trains under these conditions
every day of the year, and sustain no injury where the company has kept its platform free from
dangerous obstructions. There is no reason to believe that plaintiff would have suffered any
 CREDIT TRANSACTIONS: ATTY. MIGALLOS WEEK 1 9

injury whatever in alighting as he did had it not been for defendant's negligent failure to perform
its duty to provide a safe alighting place.
We are of the opinion that the correct doctrine relating to this subject is that expressed in
Thompson's work on Negligence (vol. 3, sec. 3010) as follows:
The test by which to determine whether the passenger has been guilty of negligence
in attempting to alight from a moving railway train, is that of ordinary or reasonable
care. It is to be considered whether an ordinarily prudent person, of the age, sex and
condition of the passenger, would have acted as the passenger acted under the
circumstances disclosed by the evidence. This care has been defined to be, not the
care which may or should be used by the prudent man generally, but the care which a
man of ordinary prudence would use under similar circumstances, to avoid injury."
(Thompson, Commentaries on Negligence, vol. 3, sec. 3010.)
continuing that employment. Defendant has not shown that any other gainful occupation is open
to plaintiff. His expectancy of life, according to the standard mortality tables, is approximately
thirty-three years. We are of the opinion that a fair compensation for the damage suffered by him
for his permanent disability is the sum of P2,500, and that he is also entitled to recover of
defendant the additional sum of P790.25 for medical attention, hospital services, and other
incidental expenditures connected with the treatment of his injuries.
The decision of lower court is reversed, and judgment is hereby rendered plaintiff for the sum of
P3,290.25, and for the costs of both instances. So ordered.
Arellano, C.J., Torres, Street and Avancea, JJ., concur.

Or, it we prefer to adopt the mode of exposition used by this court in Picart vs. Smith (37 Phil. Separate Opinions
rep., 809), we may say that the test is this; Was there anything in the circumstances surrounding
the plaintiff at the time he alighted from the train which would have admonished a person of
average prudence that to get off the train under the conditions then existing was dangerous? If MALCOLM, J., dissenting:
so, the plaintiff should have desisted from alighting; and his failure so to desist was contributory With one sentence in the majority decision, we are of full accord, namely, "It may be admitted
negligence.1awph!l.net that had plaintiff waited until the train had come to a full stop before alighting, the particular injury
suffered by him could not have occurred." With the general rule relative to a passenger's
As the case now before us presents itself, the only fact from which a conclusion can be drawn to contributory negligence, we are likewise in full accord, namely, "An attempt to alight from a
the effect that plaintiff was guilty of contributory negligence is that he stepped off the car without moving train is negligence per se." Adding these two points together, should be absolved from
being able to discern clearly the condition of the platform and while the train was yet slowly the complaint, and judgment affirmed.
moving. In considering the situation thus presented, it should not be overlooked that the plaintiff Johnson, J., concur.
was, as we find, ignorant of the fact that the obstruction which was caused by the sacks of
melons piled on the platform existed; and as the defendant was bound by reason of its duty as a
public carrier to afford to its passengers facilities for safe egress from its trains, the plaintiff had a
right to assume, in the absence of some circumstance to warn him to the contrary, that the
platform was clear. The place, as we have already stated, was dark, or dimly lighted, and this
also is proof of a failure upon the part of the defendant in the performance of a duty owing by it
to the plaintiff; for if it were by any possibility concede that it had right to pile these sacks in the
path of alighting passengers, the placing of them adequately so that their presence would be
revealed.

As pertinent to the question of contributory negligence on the part of the plaintiff in this case the
following circumstances are to be noted: The company's platform was constructed upon a level
higher than that of the roadbed and the surrounding ground. The distance from the steps of the
car to the spot where the alighting passenger would place his feet on the platform was thus
reduced, thereby decreasing the risk incident to stepping off. The nature of the platform,
constructed as it was of cement material, also assured to the passenger a stable and even
surface on which to alight. Furthermore, the plaintiff was possessed of the vigor and agility of
young manhood, and it was by no means so risky for him to get off while the train was yet
moving as the same act would have been in an aged or feeble person. In determining the
question of contributory negligence in performing such act that is to say, whether the
passenger acted prudently or recklessly the age, sex, and physical condition of the passenger
are circumstances necessarily affecting the safety of the passenger, and should be considered.
Women, it has been observed, as a general rule are less capable than men of alighting with
safety under such conditions, as the nature of their wearing apparel obstructs the free movement
of the limbs. Again, it may be noted that the place was perfectly familiar to the plaintiff as it was
his daily custom to get on and of the train at this station. There could, therefore, be no
uncertainty in his mind with regard either to the length of the step which he was required to take
or the character of the platform where he was alighting. Our conclusion is that the conduct of the
plaintiff in undertaking to alight while the train was yet slightly under way was not characterized
by imprudence and that therefore he was not guilty of contributory negligence.

The evidence shows that the plaintiff, at the time of the accident, was earning P25 a month as a
copyist clerk, and that the injuries he has suffered have permanently disabled him from

Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-19671 November 29, 1965
PASTOR B. TENCHAVEZ, plaintiff-appellant,
vs.
VICENTA F. ESCAO, ET AL., defendants-appellees.
I. V. Binamira & F. B. Barria for plaintiff-appellant.
Jalandoni & Jarnir for defendants-appellees.
REYES, J.B.L., J.:
Direct appeal, on factual and legal questions, from the judgment of the Court of First Instance of
Cebu, in its Civil Case No. R-4177, denying the claim of the plaintiff-appellant, Pastor B.
Tenchavez, for legal separation and one million pesos in damages against his wife and parents-in-
law, the defendants-appellees, Vicente, Mamerto and Mena,1 all surnamed "Escao,"
respectively.2
The facts, supported by the evidence of record, are the following:
Missing her late afternoon classes on 24 February 1948 in the University of San Carlos, Cebu City,
where she was then enrolled as a second year student of commerce, Vicenta Escao, 27 years of
age (scion of a well-to-do and socially prominent Filipino family of Spanish ancestry and a
"sheltered colegiala"), exchanged marriage vows with Pastor Tenchavez, 32 years of age, an
engineer, ex-army officer and of undistinguished stock, without the knowledge of her parents,
before a Catholic chaplain, Lt. Moises Lavares, in the house of one Juan Alburo in the said city.
The marriage was the culmination of a previous love affair and was duly registered with the local
civil register.
Vicenta's letters to Pastor, and his to her, before the marriage, indicate that the couple were deeply
in love. Together with a friend, Pacita Noel, their matchmaker and go-between, they had planned
out their marital future whereby Pacita would be the governess of their first-born; they started
saving money in a piggy bank. A few weeks before their secret marriage, their engagement was
broken; Vicenta returned the engagement ring and accepted another suitor, Joseling Lao. Her love
for Pastor beckoned; she pleaded for his return, and they reconciled. This time they planned to get
married and then elope. To facilitate the elopement, Vicenta had brought some of her clothes to
the room of Pacita Noel in St. Mary's Hall, which was their usual trysting place.
Although planned for the midnight following their marriage, the elopement did not, however,
materialize because when Vicente went back to her classes after the marriage, her mother, who
got wind of the intended nuptials, was already waiting for her at the college. Vicenta was taken
home where she admitted that she had already married Pastor. Mamerto and Mena Escao were
surprised, because Pastor never asked for the hand of Vicente, and were disgusted because of
the great scandal that the clandestine marriage would provoke (t.s.n., vol. III, pp. 1105-06). The
following morning, the Escao spouses sought priestly advice. Father Reynes suggested a
recelebration to validate what he believed to be an invalid marriage, from the standpoint of the
Church, due to the lack of authority from the Archbishop or the parish priest for the officiating
chaplain to celebrate the marriage. The recelebration did not take place, because on 26 February
1948 Mamerto Escao was handed by a maid, whose name he claims he does not remember, a
letter purportedly coming from San Carlos college students and disclosing an amorous relationship
between Pastor Tenchavez and Pacita Noel; Vicenta translated the letter to her father, and
thereafter would not agree to a new marriage. Vicenta and Pastor met that day in the house of
Mrs. Pilar Mendezona. Thereafter, Vicenta continued living with her parents while Pastor returned
to his job in Manila. Her letter of 22 March 1948 (Exh. "M"), while still solicitous of her husband's
welfare, was not as endearing as her previous letters when their love was aflame.
Vicenta was bred in Catholic ways but is of a changeable disposition, and Pastor knew it. She
fondly accepted her being called a "jellyfish." She was not prevented by her parents from
communicating with Pastor (Exh. "1-Escao"), but her letters became less frequent as the days
passed. As of June, 1948 the newlyweds were already estranged (Exh. "2-Escao"). Vicenta had
gone to Jimenez, Misamis Occidental, to escape from the scandal that her marriage stirred in
CREDIT TRANSACTIONS: ATTY. MIGALLOS WEEK 1 10
Cebu society. There, a lawyer filed for her a petition, drafted by then Senator Emmanuel Pelaez, to
annul her marriage. She did not sign the petition (Exh. "B-5"). The case was dismissed without
prejudice because of her non-appearance at the hearing (Exh. "B-4").
On 24 June 1950, without informing her husband, she applied for a passport, indicating in her
application that she was single, that her purpose was to study, and she was domiciled in Cebu
City, and that she intended to return after two years. The application was approved, and she left
for the United States. On 22 August 1950, she filed a verified complaint for divorce against the
herein plaintiff in the Second Judicial District Court of the State of Nevada in and for the County of
Washoe, on the ground of "extreme cruelty, entirely mental in character." On 21 October 1950, a
decree of divorce, "final and absolute", was issued in open court by the said tribunal.
In 1951 Mamerto and Mena Escao filed a petition with the Archbishop of Cebu to annul their
daughter's marriage to Pastor (Exh. "D"). On 10 September 1954, Vicenta sought papal
dispensation of her marriage (Exh. "D"-2).
On 13 September 1954, Vicenta married an American, Russell Leo Moran, in Nevada. She now
lives with him in California, and, by him, has begotten children. She acquired American citizenship
on 8 August 1958.
But on 30 July 1955, Tenchavez had initiated the proceedings at bar by a complaint in the Court of
First Instance of Cebu, and amended on 31 May 1956, against Vicenta F. Escao, her parents,
Mamerto and Mena Escao, whom he charged with having dissuaded and discouraged Vicenta
from joining her husband, and alienating her affections, and against the Roman Catholic Church,
for having, through its Diocesan Tribunal, decreed the annulment of the marriage, and asked for
legal separation and one million pesos in damages. Vicenta claimed a valid divorce from plaintiff
and an equally valid marriage to her present husband, Russell Leo Moran; while her parents
denied that they had in any way influenced their daughter's acts, and counterclaimed for moral
damages.
The appealed judgment did not decree a legal separation, but freed the plaintiff from supporting his
wife and to acquire property to the exclusion of his wife. It allowed the counterclaim of Mamerto
Escao and Mena Escao for moral and exemplary damages and attorney's fees against the
plaintiff-appellant, to the extent of P45,000.00, and plaintiff resorted directly to this Court.
The appellant ascribes, as errors of the trial court, the following:
1. In not declaring legal separation; in not holding defendant Vicenta F. Escao liable for
damages and in dismissing the complaint;.
2. In not holding the defendant parents Mamerto Escano and the heirs of Doa Mena
Escao liable for damages;.
3 In holding the plaintiff liable for and requiring him to pay the damages to the defendant
parents on their counterclaims; and.
4. In dismissing the complaint and in denying the relief sought by the plaintiff.
That on 24 February 1948 the plaintiff-appellant, Pastor Tenchavez, and the defendant-appellee,
Vicenta Escao, were validly married to each other, from the standpoint of our civil law, is clearly
established by the record before us. Both parties were then above the age of majority, and
otherwise qualified; and both consented to the marriage, which was performed by a Catholic priest
(army chaplain Lavares) in the presence of competent witnesses. It is nowhere shown that said
priest was not duly authorized under civil law to solemnize marriages.
The chaplain's alleged lack of ecclesiastical authorization from the parish priest and the Ordinary,
as required by Canon law, is irrelevant in our civil law, not only because of the separation of
Church and State but also because Act 3613 of the Philippine Legislature (which was the marriage
law in force at the time) expressly provided that
SEC. 1. Essential requisites. Essential requisites for marriage are the legal capacity of
the contracting parties and consent. (Emphasis supplied)
The actual authority of the solemnizing officer was thus only a formal requirement, and, therefore,
not essential to give the marriage civil effects,3 and this is emphasized by section 27 of said
marriage act, which provided the following:

SEC. 27. Failure to comply with formal requirements. No marriage shall be declared
invalid because of the absence of one or several of the formal requirements of this Act if,
when it was performed, the spouses or one of them believed in good faith that the
person who solemnized the marriage was actually empowered to do so, and that the
marriage was perfectly legal.
The good faith of all the parties to the marriage (and hence the validity of their marriage) will be
presumed until the contrary is positively proved (Lao vs. Dee Tim, 45 Phil. 739, 745; Francisco vs.
Jason, 60 Phil. 442, 448). It is well to note here that in the case at bar, doubts as to the authority of
the solemnizing priest arose only after the marriage, when Vicenta's parents consulted Father
Reynes and the archbishop of Cebu. Moreover, the very act of Vicenta in abandoning her original
action for annulment and subsequently suing for divorce implies an admission that her marriage to
plaintiff was valid and binding.
Defendant Vicenta Escao argues that when she contracted the marriage she was under the
undue influence of Pacita Noel, whom she charges to have been in conspiracy with appellant
Tenchavez. Even granting, for argument's sake, the truth of that contention, and assuming that
Vicenta's consent was vitiated by fraud and undue influence, such vices did not render her
marriage ab initio void, but merely voidable, and the marriage remained valid until annulled by a
competent civil court. This was never done, and admittedly, Vicenta's suit for annulment in the
Court of First Instance of Misamis was dismissed for non-prosecution.
It is equally clear from the record that the valid marriage between Pastor Tenchavez and Vicenta
Escao remained subsisting and undissolved under Philippine law, notwithstanding the decree of
absolute divorce that the wife sought and obtained on 21 October 1950 from the Second Judicial
District Court of Washoe County, State of Nevada, on grounds of "extreme cruelty, entirely mental
in character." At the time the divorce decree was issued, Vicenta Escao, like her husband, was
still a Filipino citizen.4 She was then subject to Philippine law, and Article 15 of the Civil Code of
the Philippines (Rep. Act No. 386), already in force at the time, expressly provided:
Laws relating to family rights and duties or to the status, condition and legal capacity of
persons are binding upon the citizens of the Philippines, even though living abroad.
The Civil Code of the Philippines, now in force, does not admit absolute divorce, quo ad vinculo
matrimonii; and in fact does not even use that term, to further emphasize its restrictive policy on
the matter, in contrast to the preceding legislation that admitted absolute divorce on grounds of
adultery of the wife or concubinage of the husband (Act 2710). Instead of divorce, the present Civil
Code only provides for legal separation (Title IV, Book 1, Arts. 97 to 108), and, even in that case, it
expressly prescribes that "the marriage bonds shall not be severed" (Art. 106, subpar. 1).
For the Philippine courts to recognize and give recognition or effect to a foreign decree of absolute
divorce betiveen Filipino citizens could be a patent violation of the declared public policy of the
state, specially in view of the third paragraph of Article 17 of the Civil Code that prescribes the
following:
Prohibitive laws concerning persons, their acts or property, and those which have for
their object public order, policy and good customs, shall not be rendered ineffective by
laws or judgments promulgated, or by determinations or conventions agreed upon in a
foreign country.
Even more, the grant of effectivity in this jurisdiction to such foreign divorce decrees would, in
effect, give rise to an irritating and scandalous discrimination in favor of wealthy citizens, to the
detriment of those members of our polity whose means do not permit them to sojourn abroad and
obtain absolute divorces outside the Philippines.
From this point of view, it is irrelevant that appellant Pastor Tenchavez should have appeared in
the Nevada divorce court. Primarily because the policy of our law cannot be nullified by acts of
private parties (Civil Code,Art. 17, jam quot.); and additionally, because the mere appearance of a
non-resident consort cannot confer jurisdiction where the court originally had none (Area vs.
Javier, 95 Phil. 579).
CREDIT TRANSACTIONS: ATTY. MIGALLOS WEEK 1 11
From the preceding facts and considerations, there flows as a necessary consequence that in this
jurisdiction Vicenta Escao's divorce and second marriage are not entitled to recognition as valid;
for her previous union to plaintiff Tenchavez must be declared to be existent and undissolved. It
follows, likewise, that her refusal to perform her wifely duties, and her denial of consortium and her
desertion of her husband constitute in law a wrong caused through her fault, for which the husband
is entitled to the corresponding indemnity (Civil Code, Art. 2176). Neither an unsubstantiated
charge of deceit nor an anonymous letter charging immorality against the husband constitute,
contrary to her claim, adequate excuse. Wherefore, her marriage and cohabitation with Russell
Leo Moran is technically "intercourse with a person not her husband" from the standpoint of
Philippine Law, and entitles plaintiff-appellant Tenchavez to a decree of "legal separation under
our law, on the basis of adultery" (Revised Penal Code, Art. 333).
The foregoing conclusions as to the untoward effect of a marriage after an invalid divorce are in
accord with the previous doctrines and rulings of this court on the subject, particularly those that
were rendered under our laws prior to the approval of the absolute divorce act (Act 2710 of the
Philippine Legislature). As a matter of legal history, our statutes did not recognize divorces a
vinculo before 1917, when Act 2710 became effective; and the present Civil Code of the
Philippines, in disregarding absolute divorces, in effect merely reverted to the policies on the
subject prevailing before Act 2710. The rulings, therefore, under the Civil Code of 1889, prior to the
Act above-mentioned, are now, fully applicable. Of these, the decision in Ramirez vs. Gmur, 42
Phil. 855, is of particular interest. Said this Court in that case:
As the divorce granted by the French Court must be ignored, it results that the marriage
of Dr. Mory and Leona Castro, celebrated in London in 1905, could not legalize their
relations; and the circumstance that they afterwards passed for husband and wife in
Switzerland until her death is wholly without legal significance. The claims of the very
children to participate in the estate of Samuel Bishop must therefore be rejected. The
right to inherit is limited to legitimate, legitimated and acknowledged natural children.
The children of adulterous relations are wholly excluded. The word "descendants" as
used in Article 941 of the Civil Code cannot be interpreted to include illegitimates born
of adulterous relations. (Emphasis supplied)
Except for the fact that the successional rights of the children, begotten from Vicenta's marriage to
Leo Moran after the invalid divorce, are not involved in the case at bar, the Gmur case is authority
for the proposition that such union is adulterous in this jurisdiction, and, therefore, justifies an
action for legal separation on the part of the innocent consort of the first marriage, that stands
undissolved in Philippine law. In not so declaring, the trial court committed error.
True it is that our ruling gives rise to anomalous situations where the status of a person (whether
divorced or not) would depend on the territory where the question arises. Anomalies of this kind
are not new in the Philippines, and the answer to them was given in Barretto vs. Gonzales, 58 Phil.
667:
The hardship of the existing divorce laws in the Philippine Islands are well known to the
members of the Legislature. It is the duty of the Courts to enforce the laws of divorce as
written by Legislature if they are constitutional. Courts have no right to say that such
laws are too strict or too liberal. (p. 72)
The appellant's first assignment of error is, therefore, sustained.
However, the plaintiff-appellant's charge that his wife's parents, Dr. Mamerto Escao and his wife,
the late Doa Mena Escao, alienated the affections of their daughter and influenced her conduct
toward her husband are not supported by credible evidence. The testimony of Pastor Tenchavez
about the Escao's animosity toward him strikes us to be merely conjecture and exaggeration, and
are belied by Pastor's own letters written before this suit was begun (Exh. "2-Escao" and
"Vicenta," Rec. on App., pp. 270-274). In these letters he expressly apologized to the defendants
for "misjudging them" and for the "great unhappiness" caused by his "impulsive blunders" and
"sinful pride," "effrontery and audacity" [sic]. Plaintiff was admitted to the Escao house to visit and
court Vicenta, and the record shows nothing to prove that he would not have been accepted to
marry Vicente had he openly asked for her hand, as good manners and breeding demanded. Even
after learning of the clandestine marriage, and despite their shock at such unexpected event, the
parents of Vicenta proposed and arranged that the marriage be recelebrated in strict conformity
with the canons of their religion upon advice that the previous one was canonically defective. If no
 CREDIT TRANSACTIONS: ATTY. MIGALLOS WEEK 1 12

recelebration of the marriage ceremony was had it was not due to defendants Mamerto Escao
and his wife, but to the refusal of Vicenta to proceed with it. That the spouses Escao did not seek
to compel or induce their daughter to assent to the recelebration but respected her decision, or
that they abided by her resolve, does not constitute in law an alienation of affections. Neither does
the fact that Vicenta's parents sent her money while she was in the United States; for it was natural
that they should not wish their daughter to live in penury even if they did not concur in her decision
to divorce Tenchavez (27 Am. Jur. 130-132).
There is no evidence that the parents of Vicenta, out of improper motives, aided and abetted her
original suit for annulment, or her subsequent divorce; she appears to have acted independently,
and being of age, she was entitled to judge what was best for her and ask that her decisions be
respected. Her parents, in so doing, certainly cannot be charged with alienation of affections in the
absence of malice or unworthy motives, which have not been shown, good faith being always
presumed until the contrary is proved.
SEC. 529. Liability of Parents, Guardians or Kin. The law distinguishes between the
right of a parent to interest himself in the marital affairs of his child and the absence of
rights in a stranger to intermeddle in such affairs. However, such distinction between the
liability of parents and that of strangers is only in regard to what will justify interference.
A parent isliable for alienation of affections resulting from his own malicious conduct, as
where he wrongfully entices his son or daughter to leave his or her spouse, but he is not
liable unless he acts maliciously, without justification and from unworthy motives. He is
not liable where he acts and advises his child in good faith with respect to his child's
marital relations in the interest of his child as he sees it, the marriage of his child not
terminating his right and liberty to interest himself in, and be extremely solicitous for, his
child's welfare and happiness, even where his conduct and advice suggest or result in
the separation of the spouses or the obtaining of a divorce or annulment, or where he
acts under mistake or misinformation, or where his advice or interference are indiscreet
or unfortunate, although it has been held that the parent is liable for consequences
resulting from recklessness. He may in good faith take his child into his home and afford
him or her protection and support, so long as he has not maliciously enticed his child
away, or does not maliciously entice or cause him or her to stay away, from his or her
spouse. This rule has more frequently been applied in the case of advice given to a
married daughter, but it is equally applicable in the case of advice given to a son.
Summing up, the Court rules:
(1) That a foreign divorce between Filipino citizens, sought and decreed after the effectivity of the
present Civil Code (Rep. Act 386), is not entitled to recognition as valid in this jurisdiction; and
neither is the marriage contracted with another party by the divorced consort, subsequently to the
foreign decree of divorce, entitled to validity in the country;
(2) That the remarriage of divorced wife and her co-habitation with a person other than the lawful
husband entitle the latter to a decree of legal separation conformably to Philippine law;
(3) That the desertion and securing of an invalid divorce decree by one consort entitles the other to
recover damages;
(4) That an action for alienation of affections against the parents of one consort does not lie in the
absence of proof of malice or unworthy motives on their part.
WHEREFORE, the decision under appeal is hereby modified as follows;
(1) Adjudging plaintiff-appellant Pastor Tenchavez entitled to a decree of legal separation from
defendant Vicenta F. Escao;
(2) Sentencing defendant-appellee Vicenta Escao to pay plaintiff-appellant Tenchavez the
amount of P25,000 for damages and attorneys' fees;
(3) Sentencing appellant Pastor Tenchavez to pay the appellee, Mamerto Escao and the estate
of his wife, the deceased Mena Escao, P5,000 by way of damages and attorneys' fees.
Neither party to recover costs.
Bengzon, C.J., Bautista Angelo, Concepcion, Dizon, Regala, Makalintal, Bengzon, J.P. and
Zaldivar, JJ., concur.

Plaintiff Tenchavez, in falsely charging Vicenta's aged parents with racial or social discrimination
and with having exerted efforts and pressured her to seek annulment and divorce, unquestionably
caused them unrest and anxiety, entitling them to recover damages. While this suit may not have
been impelled by actual malice, the charges were certainly reckless in the face of the proven facts
and circumstances. Court actions are not established for parties to give vent to their prejudices or
spleen.

In the assessment of the moral damages recoverable by appellant Pastor Tenchavez from
defendant Vicente Escao, it is proper to take into account, against his patently unreasonable
claim for a million pesos in damages, that (a) the marriage was celebrated in secret, and its failure
was not characterized by publicity or undue humiliation on appellant's part; (b) that the parties
never lived together; and (c) that there is evidence that appellant had originally agreed to the
annulment of the marriage, although such a promise was legally invalid, being against public policy
(cf. Art. 88, Civ. Code). While appellant is unable to remarry under our law, this fact is a
consequence of the indissoluble character of the union that appellant entered into voluntarily and
with open eyes rather than of her divorce and her second marriage. All told, we are of the opinion
that appellant should recover P25,000 only by way of moral damages and attorney's fees.

With regard to the P45,000 damages awarded to the defendants, Dr. Mamerto Escao and Mena
Escao, by the court below, we opine that the same are excessive. While the filing of this
unfounded suit must have wounded said defendants' feelings and caused them anxiety, the same
could in no way have seriously injured their reputation, or otherwise prejudiced them, lawsuits
having become a common occurrence in present society. What is important, and has been
correctly established in the decision of the court below, is that said defendants were not guilty of
any improper conduct in the whole deplorable affair. This Court, therefore, reduces the damages
awarded to P5,000 only.

Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 1719 January 23, 1907
M. H., RAKES, plaintiff-appellee,
vs.
THE ATLANTIC, GULF AND PACIFIC COMPANY, defendant-appellant.
A. D. Gibbs for appellant.
F. G. Waite, & Thimas Kepner for appellee.
TRACEY, J.:
This is an action for damages. The plaintiff, one of a gang of eight negro laborers in the
employment of the defendant, was at work transporting iron rails from a barge in the harbor to
the company's yard near the malecon in Manila. Plaintiff claims that but one hand car was used
in this work. The defendant has proved that there were two immediately following one another,
upon which were piled lengthwise seven rails, each weighing 560 pounds, so that the ends of
the rails lay upon two crosspieces or sills secured to the cars, but without side pieces or guards
to prevent them from slipping off. According to the testimony of the plaintiff, the men were either
in the rear of the car or at its sides. According to that defendant, some of them were also in front,
hauling by a rope. At a certain spot at or near the water's edge the track sagged, the tie broke,
the car either canted or upset, the rails slid off and caught the plaintiff, breaking his leg, which
was afterwards amputated at about the knee.
This first point for the plaintiff to establish was that the accident happened through the
negligence of the defendant. The detailed description by the defendant's witnesses of the
construction and quality of the track proves that if was up to the general stranded of tramways of
that character, the foundation consisting on land of blocks or crosspieces of wood, by 8 inches
thick and from 8 to 10 feet long laid, on the surface of the ground, upon which at a right angle
rested stringers of the same thickness, but from 24 to 30 feet in length. On the across the
stringers the parallel with the blocks were the ties to which the tracks were fastened. After the
road reached the water's edge, the blocks or crosspieces were replaced with pilling, capped by
timbers extending from one side to the other. The tracks were each about 2 feet wide and the
two inside rails of the parallel tracks about 18 inches apart. It was admitted that there were no
side pieces or guards on the car; that where no ends of the rails of the track met each other and
also where the stringers joined, there were no fish plates. the defendant has not effectually
overcome the plaintiff's proof that the joints between the rails were immediately above the joints
between the underlying stringers.
The cause of the sagging of the tracks and the breaking of the tie, which was the immediate
occasion of the accident, is not clear in the evidence, but is found by the trial court and is
admitted in the briefs and in the argument to have been the dislodging of the crosspiece or piling
under the stringer by the water of the bay raised by a recent typhoon. The superintendent of the
company attributed it to the giving way of the block laid in the sand. No effort was made to repair
the injury at the time of the occurrence. According to plaintiffs witnesses, a depression of the
track, varying from one half inch to one inch and a half, was therafter apparent to the eye, and a
fellow workman of the plaintiff swears that the day before the accident he called the attention of
McKenna, the foreman, to it and asked by simply straightening out the crosspiece, resetting the
block under the stringer and renewing the tie, but otherwise leaving the very same timbers as
before. It has not proven that the company inspected the track after the typhoon or had any
proper system of inspection.
In order to charge the defendant with negligence, it was necessary to show a breach of duty on
its part in failing either to properly secure the load on iron to vehicles transporting it, or to
skillfully build the tramway or to maintain it in proper condition, or to vigilantly inspect and repair
the roadway as soon as the depression in it became visible. It is upon the failure of the
defendant to repair the weakened track, after notice of its condition, that the judge below based
his judgment.
CREDIT TRANSACTIONS: ATTY. MIGALLOS WEEK 1 13
This case presents many important matters for our decision, and first among them is the
standard of duty which we shall establish in our jurisprudence on the part of employees toward
employees.
The lack or the harshness of legal rules on this subject has led many countries to enact
designed to put these relations on a fair basis in the form of compensation or liability laws or the
institution of insurance. In the absence of special legislation we find no difficulty in so applying
the general principles of our law as to work out a just result.
Article 1092 of the Civil Code provides:
Civil obligations, arising from crimes or misdemeanors, shall be governed by the
provisions of the Penal Code.
And article 568 of the latter code provides:
He who shall execute through reckless negligence an act that if done with malice
would constitute a grave crime, shall be punished.
And article 590 provides that the following shall be punished:
4. Those who by simple imprudence or negligence, without committing any infraction
of regulations, shall cause an injury which, had malice intervened, would have
constituted a crime or misdemeanor.
And finally by articles 19 and 20, the liability of owners and employers for the faults of their
servants and representatives is declared to be civil and subsidiary in its character.
It is contented by the defendant, as its first defense to the action, that the necessary conclusion
from these collated laws is that the remedy for injuries through negligence lies only in a criminal
action in which the official criminally responsible must be made primarily liable and his employer
held only subsidiarily to him. According to this theory the plaintiff should have procured the arrest
of the representative of the company accountable for not repairing the tract, and on his
prosecution a suitable fine should have been imposed, payable primarily by him and secondarily
by his employer.
This reasoning misconceived the plan of the Spanish codes upon this subject. Article 1093 of the
Civil Code makes obligations arising from faults or negligence not punished by the law, subject
to the provisions of Chapter 11 of Title XVI. Section 1902 of that chapter reads:
A person who by an act or omission causes damage to another when there is fault or
negligence shall be obliged to repair the damage so done.
SEC. 1903. The obligation imposed by the preceding article is demandable, not only
for personal acts and omissions, but also for those of the persons for whom they
should be responsible.
The father, and on his death or incapacity, the mother, is liable for the damages
caused by the minors who live with them.
xxx xxx xxx
Owners or directors of an establishment or enterprise are equally liable for the
damages caused by their employees in the service of the branches in which the latter
may be employed or in the performance of their duties.
xxx xxx xxx
The liability referred to in this article shall cease when the persons mentioned therein
prove that they employed all the diligence of a good father of a family to avoid the
damages.
As an answer to the argument urged in this particular action it may be sufficient to point out that
nowhere in our general statutes is the employer penalized for failure to provide or maintain safe
appliances for his workmen. His obligation therefore is one "not punished by the law " and falls
under civil rather than criminal jurisprudence. But the answer may be a broader one. We should
be reluctant, under any conditions, to adopt a forced construction of these scientific codes, such
as is proposed by the defendant, that would rob some of these articles of effect, would shut out
litigants their will from the civil courts, would make the assertion of their rights dependent upon
the selection for prosecution of the proper criminal offender, and render recovery doubtful by
reason of the strict rules of proof prevailing in criminal actions. Even if these articles had always

stood alone, such a construction would be unnecessary, but clear light is thrown upon their
meaning by the provisions of the Law of Criminal Procedure of Spain (Ley de Enjuiciamiento
Criminal), which, though n ever in actual force in these Islands, was formerly given a suppletory
or explanatory effect. Under article 111 of this law, both classes of action, civil and criminal,
might be prosecuted jointly or separately, but while the penal action was pending the civil was
suspended. According to article 112, the penal action once started, the civil remedy should be
sought therewith, unless it had been waived by the party injured or been expressly reserved by
him for civil proceedings for the future. If the civil action alone was prosecuted, arising out of a
crime that could be enforced by only on private complaint, the penal action thereunder should be
extinguished. These provisions are in harmony with those of articles 23 and 133 of our Penal
Code on the same subject.
An examination of this topic might be carried much further, but the citations of these articles
suffices to show that the civil liability was not intended to be merged in the criminal nor even to
be suspended thereby, except as expressly provided by law. Where an individual is civilly liable
for a negligent act or omission, it is not required that the inured party should seek out a third
person criminally liable whose prosecution must be a condition precedent to the enforcement of
the civil right.
Under article 20 of the Penal Code the responsibility of an employer may be regarded as
subsidiary in respect of criminal actions against his employees only while they are process of
prosecution, or in so far as they determinate the existence of the criminal act from which liability
arises, and his obligation under the civil law and its enforcement in the civil courts is not barred
thereby unless by election of the injured person. Inasmuch as no criminal in question, the
provisions of the Penal Code can not affect this action. This construction renders it unnecessary
to finally determine here whether this subsidiary civil liability in penal actions survived the laws
that fully regulated it or has been abrogated by the American civil and criminal procedure now in
force in the Philippines.
The difficulty in construing the articles of the code above cited in this case appears from the
briefs before us to have arisen from the interpretation of the words of article 1093, "fault or
negligence not punished by law," as applied to the comprehensive definition of offenses in
articles 568 and 590 of the Penal Code. It has been shown that the liability of an employer
arising out of his relation to his employee who is the offender is not to be regarded as derived
from negligence punished by the law, within the meaning of articles 1092 and 1093. More than
this, however, it can not be said to fall within the class of acts unpunished by the law, the
consequences of which are regulated by articles 1902 and 1903 of the Civil Code. The acts to
which these articles are applicable are understood to be those and growing out of preexisting
duties of the parties to one another. But were relations already formed give rise to duties,
whether springing from contract or quasi contract, then breaches of those duties are subject to
articles 1101, 1103, and 1104, of the same code. A typical application of the distinction may be
found in the consequences of a railway accident due to defective machinery supplied by the
employer. His liability to his employee would arise out of the contract of employment, that to the
passengers out of the contract for passage. while that to that injured bystander would originate
in the negligent act itself. This distinction is thus clearly set forth by Manresa in his commentary
on article 1093.
We are with reference to such obligations, that culpa, or negligence, may be
understood in two difference senses; either as culpa, substantive and independent,
which on account of its origin arises in an obligation between two persons not formerly
bound by any other obligation; or as an incident in the performance of an obligation; or
as already existed, which can not be presumed to exist without the other, and which
increases the liability arising from the already exiting obligation.
Of these two species of culpa the first one mentioned, existing by itself, may be also
considered as a real source of an independent obligation, and, as chapter 2, title 16 of
this book of the code is devoted to it, it is logical to presume that the reference
contained in article 1093 is limited thereto and that it does not extend to those
provisions relating to the other species of culpa (negligence), the nature of which we
will discuss later. (Vol. 8, p. 29.)
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And in his commentary on articles 1102 and 1104 he says that these two species of negligence
may be somewhat inexactly described as contractual and extra-contractual, the letter being
the culpa aquiliana of the Roman law and not entailing so strict an obligation as the former. This
terminology is unreservedly accepted by Sanchez-Roman (Derecho Civil, fourth section,
Chapter XI, Article II, No. 12), and the principle stated is supported be decisions of the supreme
court of Spain, among them those of November 20, 1896 (80 Jurisprudencia Civil, No. 151), and
June 27, 1894 (75 Jurisprudencia Civil, No. 182). The contract is one for hire and not one of
mandate. (March 10, 1897, 81 Jurisprudencia Civil, No. 107.)
Spanish Jurisprudencia prior to the adoption of the Working Men's Accident Law of January 30,
1900, throws uncertain light on the relation between master and workman. Moved by the quick
industrial development of their people, the courts of France early applied to the subject the
principles common to the law of both countries, which are lucidly discussed by the leading
French commentators.
The original French theory, resting the responsibility of owners of industrial enterprises upon
articles 1382, 1383, and 1384 of the Code Napoleon, corresponding in scope to articles 1902
and 1903 of the Spanish Code, soon yielded to the principle that the true basis is the contractual
obligation of the employer and employee. (See 18 Dalloz, 196, Title Travail, 331.)
Later the hardships resulting from special exemptions inserted in contracts for employment led
to the discovery of a third basis for liability in an article of he French Code making the possessor
of any object answerable for damage done by it while in his charge. Our law having no
counterpart of this article, applicable to every kind of object, we need consider neither the theory
growing out of it nor that of "professional risk" more recently imposed by express legislation, but
rather adopting the interpretation of our Civil Code above given, find a rule for this case in the
contractual obligation. This contractual obligation, implied from the relation and perhaps so
inherent in its nature to be invariable by the parties, binds the employer to provide safe
appliances for the use of the employee, thus closely corresponding to English and American
Law. On these principles it was the duty of the defendant to build and to maintain its track in
reasonably sound condition, so as to protect its workingmen from unnecessary danger. It is plain
that in one respect or the other it failed in its duty, otherwise the accident could not have
occurred; consequently the negligence of the defendant is established.
Another contention of the defense is that the injury resulted to the plaintiff as a risk incident to his
employment and, as such, one assumed by him. It is evident that this can not be the case if the
occurrence was due to the failure to repair the track or to duly inspect, it for the employee is not
presumed to have stipulated that the employer might neglect his legal duty. Nor may it be
excused upon the ground that the negligence leading to the accident was that of a fellow-servant
of the injured man. It is not apparent to us that the intervention of a third person can relieve the
defendant from the performance of its duty nor impose upon the plaintiff the consequences of an
act or omission not his own. Sua cuique culpa nocet. This doctrine, known as "the fellow-
servant, rule," we are not disposed to introduce into our jurisprudence. Adopted in England by
Lord Abinger in the case of Prescott vs. Fowler (3 Meeson & Welsby, 1) in 1837, it has since
been effectually abrogated by "the Employers' Liability Acts" and the "Compensation Law." The
American States which applied it appear to be gradually getting rid of it; for instance, the New
York State legislature of 1906 did away with it in respect to railroad companies, and had in hand
a scheme for its total abolition. It has never found place in the civil law of continental Europe.
(Dalloz, vol. 39, 1858, Title Responsibilite, 630, and vol. 15, 1895, same title, 804. Also more
recent instances in Fuzier-Herman, Title Responsibilite Civile, 710.)
The French Cour de Cassation clearly laid down the contrary principle in its judgment of June
28, 1841, in the case of Reygasse, and has since adhered to it.
The most controverted question in the case is that of the negligence of the plaintiff, contributing
to the accident, to what extent it existed in fact and what legal effect is to be given it. In two
particulars is he charged with carelessness:
First. That having noticed the depression in the track he continued his work; and

Second. That he walked on the ends of the ties at the side of the car instead of along the
boards, either before or behind it.
As to the first point, the depression in the track night indicate either a serious or a rival difficulty.
There is nothing in the evidence to show that the plaintiff did or could see the displaced timber
underneath the sleeper. The claim that he must have done so is a conclusion drawn from what is
assumed to have been a probable condition of things not before us, rather than a fair inference
from the testimony. While the method of construction may have been known to the men who had
helped build the road, it was otherwise with the plaintiff who had worked at this job less than two
days. A man may easily walk along a railway without perceiving a displacement of the underlying
timbers. The foreman testified that he knew the state of the track on the day of the accident and
that it was then in good condition, and one Danridge, a witness for the defendant, working on the
same job, swore that he never noticed the depression in the track and never saw any bad place
in it. The sagging of the track this plaintiff did perceive, but that was reported in his hearing to the
foreman who neither promised nor refused to repair it. His lack of caution in continuing at his
work after noticing the slight depression of the rail was not of so gross a nature as to constitute
negligence, barring his recovery under the severe American rule. On this point we accept the
conclusion of the trial judge who found as facts that "the plaintiff did not know the cause of the
one rail being lower than then other" and "it does not appear in this case that the plaintiff knew
before the accident occurred that the stringers and rails joined in the same place."
Were we not disposed to agree with these findings they would, nevertheless, be binding upon
us, because not "plainly and manifestly against the weight of evidence," as those words of
section 497, paragraph 3 of the Code of Civil Procedure were interpreted by the Supreme Court
of the United States in the De la Rama case (201 U. S., 303).
In respect of the second charge of negligence against the plaintiff, the judgment below is not so
specific. While the judge remarks that the evidence does not justify the finding that the car was
pulled by means of a rope attached to the front end or to the rails upon it, and further that the
circumstances in evidence make it clear that the persons necessary to operate the car could not
walk upon the plank between the rails and that, therefore, it was necessary for the employees
moving it to get hold upon it as best they could, there is no specific finding upon the instruction
given by the defendant to its employees to walk only upon the planks, nor upon the necessity of
the plaintiff putting himself upon the ties at the side in order to get hold upon the car. Therefore
the findings of the judge below leave the conduct of the plaintiff in walking along the side of the
loaded car, upon the open ties, over the depressed track, free to our inquiry.
While the plaintiff and his witnesses swear that not only were they not forbidden to proceed in
this way, but were expressly directed by the foreman to do so, both the officers of the company
and three of the workmen testify that there was a general prohibition frequently made known to
all the gang against walking by the side of the car, and the foreman swears that he repeated the
prohibition before the starting of this particular load. On this contradiction of proof we think that
the preponderance is in favor of the defendant's contention to the extent of the general order
being made known to the workmen. If so, the disobedience of the plaintiff in placing himself in
danger contributed in some degree to the injury as a proximate, although not as its primary
cause. This conclusion presents sharply the question, What effect is to be given such an act of
contributory negligence? Does it defeat a recovery, according to the American rule, or is it to be
taken only in reduction of damages?
While a few of the American States have adopted to a greater or less extent the doctrine of
comparative negligence, allowing a recovery by a plaintiff whose own act contributed to his
injury, provided his negligence was slight as compared with that of the defendant, and some
others have accepted the theory of proportional damages, reducing the award to a plaintiff in
proportion to his responsibility for the accident, yet the overwhelming weight of adjudication
establishes the principle in American jurisprudence that any negligence, however slight, on the
part of the person injured which is one of the causes proximately contributing to his injury, bars
his recovery. (English and American Encyclopedia of law, Titles "Comparative Negligence" and
Contributory Negligence.")
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In Grant Trunk Railway Company vs. Ives (144 U. S., 408, at page 429) the Supreme Court of
the United States thus authoritatively states the present rule of law:
Although the defendant's' negligence may have been the primary cause of the injury
complained of, yet an action for such injury can not be maintained if the proximate and
immediate cause of the injury can be traced to the want of ordinary care and caution in
the person injured; subject to this qualification, which has grown up in recent years
(having been first enunciated in Davies vs. Mann, 10 M. & W., 546) that the
contributory negligence of the party injured will not defeat the action if it be shown that
the defendant might, by the exercise of reasonable care and prudence, have avoided
the consequences of the injured party's negligence.
There are may cases in the supreme court of Spain in which the defendant was exonerated, but
when analyzed they prove to have been decided either upon the point that he was not negligent
or that the negligence of the plaintiff was the immediate cause of the casualty or that the
accident was due to casus fortuitus. Of the first class in the decision of January 26, 1887
(38 Jurisprudencia Criminal, No. 70), in which a railway employee, standing on a car, was
thrown therefrom and killed by the shock following the backing up of the engine. It was held that
the management of the train and engine being in conformity with proper rules of the company,
showed no fault on its part.
Of the second class are the decision of the 15th of January, the 19th of February, and the 7th of
March, 1902, stated in Alcubilla's Index of that year; and of the third class the decision of the 4th
of June, 1888 (64 Jurisprudencia Civil, No. 1), in which the breaking down of plaintiff's dam by
the logs of the defendant impelled against it by the Tajo River, was held due to a freshet as a
fortuitous cause.
The decision of the 7th of March, 1902, on which stress has been laid, rested on two bases, one,
that the defendant was not negligent, because expressly relieved by royal order from the
common obligation imposed by the police law of maintaining a guard at the road crossing; the
other, because the act of the deceased in driving over level ground with unobstructed view in
front of a train running at speed, with the engine whistle blowing was the determining cause of
the accident. It is plain that the train was doing nothing but what it had a right to do and that the
only fault lay with the injured man. His negligence was not contributory, it was sole, and was of
such an efficient nature that without it no catastrophe could have happened.
On the other hand, there are many cases reported in which it seems plain that the plaintiff
sustaining damages was not free from contributory negligence; for instance, the decision of the
14th of December, 1894 (76 Jurisprudencia Civil, No. 134), in which the owner of a building was
held liable for not furnishing protection to workmen engaged in hanging out flags, when the latter
must have perceived beforehand the danger attending the work.
None of those cases define the effect to be given the negligence of a plaintiff which contributed
to his injury as one of its causes, though not the principal one, and we are left to seek the theory
of the civil law in the practice of other countries.
In France in the case of Marquant, August 20, 1879, the cour de cassation held that the
carelessness of the victim did not civilly relieve the person without whose fault the accident could
not have happened, but that the contributory negligence of the injured man had the effect only of
reducing the damages. The same principle was applied in the case of Recullet, November 10,
1888. and that of Laugier of the 11th of November, 1896. (Fuzier-Herman, Title Responsibilite
Cirile, 411, 412.) Of like tenor are citations in Dalloz (vol. 18, 1806, Title Trail, 363, 364, and vol.
15, 1895, Title Responsibilite, 193, 198).
In the Canadian Province of Quebee, which has retained for the most part the French Civil Law,
now embodied in a code following the Code Napoleon, a practice in accord with that of France is
laid down in many cases collected in the annotations to article 1053 of the code edited by
Beauchamps, 1904. One of these is Luttrell vs. Trottier, reported in La Revue de Jurisprudence,
volume 6, page 90, in which the court of Kings bench, otherwise known as the court of appeals,
 CREDIT TRANSACTIONS: ATTY. MIGALLOS WEEK 1 16

the highest authority in the Dominion of Canada on points of French law, held that contributory
negligence did not exonerate the defendants whose fault had been the immediate cause of the
accident, but entitled him to a reduction of damages. Other similar cases in the provincial courts
have been overruled by appellate tribunals made up of common law judges drawn from other
provinces, who have preferred to impose uniformally throughout the Dominion the English theory
of contributory negligence. Such decisions throw no light upon the doctrines of the civil law.
Elsewhere we find this practice embodied in legislation; for instance, section 2 of article 2398 of
the Code of Portugal reads as follows:
If in the case of damage there was fault or negligence on the part of the person injured
or in the part of some one else, the indemnification shall be reduced in the first case,
and in the second case it shall be appropriated in proportion to such fault or
negligence as provided in paragraphs 1 and 2 of section 2372.
And in article 1304 of the Austrian Code provides that the victim who is partly changeable with
the accident shall stand his damages in proportion to his fault, but when that proportion is
incapable of ascertainment, he shall share the liability equally with the person principally
responsible. The principle of proportional damages appears to be also adopted in article 51 of
the Swiss Code. Even in the United States in admirality jurisdictions, whose principles are
derived from the civil law, common fault in cases of collision have been disposed of not on the
ground of contradictor negligence, but on that of equal loss, the fault of the one part being offset
against that of the other. (Ralli vs. Troop, 157 U. S. 386; 97.)
The damage of both being added together and the sum equally divided, a decree is entered in
favor of the vessel sustaining the greater loss against the other for the excess of her damages
over one-half of the aggregate sum. (The Manitoba, 122 U. S., 97)
Exceptional practice appears to prevail in maritime law in other jurisdictions. The Spanish Code
of Commerce, article 827, makes each vessel for its own damage when both are the fault; this
provision restricted to a single class of the maritime accidents, falls for short of a recognition of
the principle of contributory negligence as understood in American Law, with which, indeed, it
has little in common. This is a plain from other articles of the same code; for instance, article
829, referring to articles 826, 827, and 828, which provides: "In the cases above mentioned the
civil action of the owner against the person liable for the damage is reserved, as well as the
criminal liability which may appear."
Whatever may prove to be the doctrine finally adopted in Spain or in other countries under the
stress and counter stress of novel schemers of legislation, we find the theory of damages laid
down in the judgment the most consistent with the history and the principals of our law in these
Islands and with its logical development.
Difficulty seems to be apprehended in deciding which acts of the injured party shall be
considered immediate causes of the accident. The test is simple. Distinction must be between
the accident and the injury, between the event itself, without which there could have been no
accident, and those acts of the victim not entering into it, independent of it, but contributing
under review was the displacement of the crosspiece or the failure to replace it. this produced
the event giving occasion for damages that is, the shinking of the track and the sliding of the
iron rails. To this event, the act of the plaintiff in walking by the side of the car did not contribute,
although it was an element of the damage which came to himself. Had the crosspiece been out
of place wholly or partly thorough his act of omission of duty, the last would have been one of
the determining causes of the event or accident, for which he would have been responsible.
Where he contributes to the principal occurrence, as one of its determining factors, he can not
recover. Where, in conjunction with the occurrence, he contributes only to his own injury, he may
recover the amount that the defendant responsible for the event should pay for such injury, less
a sum deemed a suitable equivalent for his own imprudence.
Accepting, though with some hesitation, the judgment of the trial court, fixing the damage
incurred by the plaintiff at 5,000 pesos, the equivalent of 2,500 dollars, United States money, we
deduct therefrom 2,500 pesos, the amount fairly attributable to his negligence, and direct
judgment to be entered in favor of the plaintiff for the resulting sum of 2,500 pesos, with cost of
both instances, and ten days hereafter let the case be remanded to the court below for proper
action. So ordered.
Arellano, C.J. Torres and Mapa, JJ., concur.

The rule of the common law, a hard and fast one, not adjustable with respects of the faults of the
parties, appears to have grown out the original method of trial by jury, which rendered difficult a
nice balancing of responsibilities and which demanded an inflexible standard as a safeguard
against too ready symphaty for the injured. It was assumed that an exact measure of several
concurring faults was unattainable.
The reason why, in cases of mutual concurring negligence, neither party can maintain
an action against the other, is, not the wrong of the one is set off against the wrong of
the other; it that the law can not measure how much of the damage suffered is
attributable to the plaintiff's own fault. If he were allowed to recover, it might be that he
would obtain from the other party compensation for hiss own misconduct.
(Heil vs. Glanding, 42 Penn. St. Rep., 493, 499.)
The parties being mutually in fault, there can be no appointment of damages. The law
has no scales to determine in such cases whose wrongdoing weighed most in the
compound that occasioned the mischief. (Railroad vs. Norton, 24 Penn. St. 565, 469.)
Experience with jury trials in negligence cases has brought American courts to review to relax
the vigor of the rule by freely exercising the power of setting aside verdicts deemed excessive,
through the device of granting new trials, unless reduced damages are stipulated for, amounting
to a partial revision of damages by the courts. It appears to us that the control by the court of the
subject matter may be secured on a moral logical basis and its judgment adjusted with greater
nicety to the merits of the litigants through the practice of offsetting their respective
responsibilities. In the civil law system the desirable end is not deemed beyond the capacity of
its tribunals.

Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-9356 February 18, 1915
C. S. GILCHRIST, plaintiff-appellee,
vs.
E. A. CUDDY, ET AL., defendants.
JOSE FERNANDEZ ESPEJO and MARIANO ZALDARRIAGA, appellants.
C. Lozano for appellants.
Bruce, Lawrence, Ross and Block for appellee.
TRENT, J.:
An appeal by the defendants, Jose Fernandez Espejo and Mariano Zaldarriaga, from a judgment of the
Court of First Instance of Iloilo, dismissing their cross-complaint upon the merits for damages against
the plaintiff for the alleged wrongful issuance of a mandatory and a preliminary injunction.
Upon the application of the appellee an ex parte mandatory injunction was issued on the 22d of May,
1913, directing the defendant, E. A. Cuddy, to send to the appellee a certain cinematograph film called
"Zigomar" in compliance with an alleged contract which had been entered into between these two
parties, and at the time an ex partepreliminary injunction was issued restraining the appellants from
receiving and exhibiting in their theater the Zigomar until further orders of the court. On the 26th of that
month the appellants appeared and moved the court to dissolve the preliminary injunction. When the
case was called for trial on August 6, the appellee moved for the dismissal of the complaint "for the
reason that there is no further necessity for the maintenance of the injunction." The motion was granted
without objection as to Cuddy and denied as to the appellants in order to give them an opportunity to
prove that the injunction were wrongfully issued and the amount of damages suffered by reason
thereof.
The pertinent part of the trial court's findings of fact in this case is as follows:
It appears in this case that Cuddy was the owner of the film Zigomar and that on the 24th of
April he rented it to C. S. Gilchrist for a week for P125, and it was to be delivered on the
26th of May, the week beginning that day. A few days prior to this Cuddy sent the money
back to Gilchrist, which he had forwarded to him in Manila, saying that he had made other
arrangements with his film. The other arrangements was the rental to these defendants
Espejo and his partner for P350 for the week and the injunction was asked by Gilchrist
against these parties from showing it for the week beginning the 26th of May.
It appears from the testimony in this case, conclusively, that Cuddy willfully violated his
contract, he being the owner of the picture, with Gilchrist because the defendants had
offered him more for the same period. Mr. Espejo at the trial on the permanent injunction on
the 26th of May admitted that he knew that Cuddy was the owner of the film. He was trying
to get it through his agents Pathe Brothers in Manila. He is the agent of the same concern in
Iloilo. There is in evidence in this case on the trial today as well as on the 26th of May,
letters showing that the Pathe Brothers in Manila advised this man on two different
occasions not to contend for this film Zigomar because the rental price was prohibitive
and assured him also that he could not get the film for about six weeks. The last of these
letters was written on the 26th of April, which showed conclusively that he knew they had to
get this film from Cuddy and from this letter that the agent in Manila could not get it, but he
made Cuddy an offer himself and Cuddy accepted it because he was paying about three
times as much as he had contracted with Gilchrist for. Therefore, in the opinion of this court,
the defendants failed signally to show the injunction against the defendant was wrongfully
procured.
The appellants duly excepted to the order of the court denying their motion for new trial on the ground
that the evidence was insufficient to justify the decision rendered. There is lacking from the record
before us the deposition of the defendant Cuddy, which apparently throws light upon a contract entered
into between him and the plaintiff Gilchrist. The contents of this deposition are discussed at length in
the brief of the appellants and an endeavor is made to show that no such contract was entered into.
The trial court, which had this deposition before it, found that there was a contract between Cuddy and
Gilchrist. Not having the deposition in question before us, it is impossible to say how strongly it militates
against this findings of fact. By a series of decisions we have construed section 143 and 497 (2) of the
Code of Civil Procedure to require the production of all the evidence in this court. This is the duty of the
CREDIT TRANSACTIONS: ATTY. MIGALLOS WEEK 1 17
appellant and, upon his failure to perform it, we decline to proceed with a review of the evidence. In
such cases we rely entirely upon the pleadings and the findings of fact of the trial court and examine
only such assigned errors as raise questions of law. (Ferrer vs. Neri Abejuela, 9 Phil. Rep., 324;
Valle vs. Galera, 10 Phil. Rep., 619; Salvacion vs. Salvacion, 13 Phil. Rep., 366; Breta vs. Smith, Bell &
Co., 15 Phil. Rep., 446; Arroyo vs. Yulo, 18 Phil. Rep., 236; Olsen & Co. vs. Matson, Lord & Belser
Co., 19 Phil. Rep., 102; Blum vs. Barretto, 19 Phil. Rep., 161; Cuyugan vs. Aguas, 19 Phil. Rep., 379;
Mapa vs. Chaves, 20 Phil. Rep., 147; Mans vs. Garry, 20 Phil. Rep., 134.) It is true that some of the
more recent of these cases make exceptions to the general rule. Thus, in Olsen & Co. vs.Matson, Lord
& Belser Co., (19 Phil. Rep., 102), that portion of the evidence before us tended to show that grave
injustice might result from a strict reliance upon the findings of fact contained in the judgment appealed
from. We, therefore, gave the appellant an opportunity to explain the omission. But we required that
such explanation must show a satisfactory reason for the omission, and that the missing portion of the
evidence must be submitted within sixty days or cause shown for failing to do so. The other cases
making exceptions to the rule are based upon peculiar circumstances which will seldom arise in
practice and need not here be set forth, for the reason that they are wholly inapplicable to the present
case. The appellants would be entitled to indulgence only under the doctrine of the Olsen case. But
from that portion of the record before us, we are not inclined to believe that the missing deposition
would be sufficient to justify us in reversing the findings of fact of the trial court that the contract in
question had been made. There is in the record not only the positive and detailed testimony of Gilchrist
to this effect, but there is also a letter of apology from Cuddy to Gilchrist in which the former enters into
a lengthy explanation of his reasons for leasing the film to another party. The latter could only have
been called forth by a broken contract with Gilchrist to lease the film to him. We, therefore, fail to find
any reason for overlooking the omission of the defendants to bring up the missing portion of the
evidence and, adhering to the general rule above referred to, proceed to examine the questions of law
raised by the appellants.
From the above-quoted findings of fact it is clear that Cuddy, a resident of Manila, was the owner of the
"Zigomar;" that Gilchrist was the owner of a cinematograph theater in Iloilo; that in accordance with the
terms of the contract entered into between Cuddy and Gilchrist the former leased to the latter the
"Zigomar" for exhibition in his (Gilchrist's) theater for the week beginning May 26, 1913; and that Cuddy
willfully violate his contract in order that he might accept the appellant's offer of P350 for the film for the
same period. Did the appellants know that they were inducing Cuddy to violate his contract with a third
party when they induced him to accept the P350? Espejo admitted that he knew that Cuddy was the
owner of the film. He received a letter from his agents in Manila dated April 26, assuring him that he
could not get the film for about six weeks. The arrangement between Cuddy and the appellants for the
exhibition of the film by the latter on the 26th of May were perfected after April 26, so that the six weeks
would include and extend beyond May 26. The appellants must necessarily have known at the time
they made their offer to Cuddy that the latter had booked or contracted the film for six weeks from April
26. Therefore, the inevitable conclusion is that the appellants knowingly induced Cuddy to violate his
contract with another person. But there is no specific finding that the appellants knew the identity of the
other party. So we must assume that they did not know that Gilchrist was the person who had
contracted for the film.
The appellants take the position that if the preliminary injunction had not been issued against them they
could have exhibited the film in their theater for a number of days beginning May 26, and could have
also subleased it to other theater owners in the nearby towns and, by so doing, could have cleared,
during the life of their contract with Cuddy, the amount claimed as damages. Taking this view of the
case, it will be unnecessary for us to inquire whether the mandatory injunction against Cuddy was
properly issued or not. No question is raised with reference to the issuance of that injunction.
The right on the part of Gilchrist to enter into a contract with Cuddy for the lease of the film must be
fully recognized and admitted by all. That Cuddy was liable in an action for damages for the breach of
that contract, there can be no doubt. Were the appellants likewise liable for interfering with the contract
between Gilchrist and Cuddy, they not knowing at the time the identity of one of the contracting
parties? The appellants claim that they had a right to do what they did. The ground upon which the
appellants base this contention is, that there was no valid and binding contract between Cuddy and
Gilchrist and that, therefore, they had a right to compete with Gilchrist for the lease of the film, the right
to compete being a justification for their acts. If there had been no contract between Cuddy and
Gilchrist this defense would be tenable, but the mere right to compete could not justify the appellants in
intentionally inducing Cuddy to take away the appellee's contractual rights.

Chief Justice Wells in Walker vs. Cronin (107 Mass., 555), said: "Everyone has a right to enjoy the
fruits and advantages of his own enterprise, industry, skill and credit. He has no right to be free from
malicious and wanton interference, disturbance or annoyance. If disturbance or loss come as a result
of competition, or the exercise of like rights by others, it is damnum absque injuria, unless some
superior right by contract or otherwise is interfered with."
In Read vs. Friendly Society of Operative Stonemasons ([1902] 2 K. B., 88), Darling, J., said: "I think
the plaintiff has a cause of action against the defendants, unless the court is satisfied that, when they
interfered with the contractual rights of plaintiff, the defendants had a sufficient justification for their
interference; . . . for it is not a justification that `they acted bona fide in the best interests of the society
of masons,' i. e., in their own interests. Nor is it enough that `they were not actuated by improper
motives.' I think their sufficient justification for interference with plaintiff's right must be an equal or
superior right in themselves, and that no one can legally excuse himself to a man, of whose contract he
has procured the breach, on the ground that he acted on a wrong understanding of his own rights, or
without malice, or bona fide, or in the best interests of himself, or even that he acted as an altruist,
seeking only good of another and careless of his own advantage." (Quoted with approval in
Beekman vs. Marsters, 195 Mass., 205.)
It is said that the ground on which the liability of a third party for interfering with a contract between
others rests, is that the interference was malicious. The contrary view, however, is taken by the
Supreme Court of the United States in the case of Angle vs. Railway Co. (151 U. S., 1). The only
motive for interference by the third party in that case was the desire to make a profit to the injury of one
of the parties of the contract. There was no malice in the case beyond the desire to make an unlawful
gain to the detriment of one of the contracting parties.
In the case at bar the only motive for the interference with the Gilchrist Cuddy contract on the part of
the appellants was a desire to make a profit by exhibiting the film in their theater. There was no malice
beyond this desire; but this fact does not relieve them of the legal liability for interfering with that
contract and causing its breach. It is, therefore, clear, under the above authorities, that they were liable
to Gilchrist for the damages caused by their acts, unless they are relieved from such liability by reason
of the fact that they did not know at the time the identity of the original lessee (Gilchrist) of the film.
The liability of the appellants arises from unlawful acts and not from contractual obligations, as they
were under no such obligations to induce Cuddy to violate his contract with Gilchrist. So that if the
action of Gilchrist had been one for damages, it would be governed by chapter 2, title 16, book 4 of the
Civil Code. Article 1902 of that code provides that a person who, by act or omission, causes damages
to another when there is fault or negligence, shall be obliged to repair the damage do done. There is
nothing in this article which requires as a condition precedent to the liability of a tort-feasor that he must
know the identity of a person to whom he causes damages. In fact, the chapter wherein this article is
found clearly shows that no such knowledge is required in order that the injured party may recover for
the damage suffered.
But the fact that the appellants' interference with the Gilchrist contract was actionable did not of itself
entitle Gilchrist to sue out an injunction against them. The allowance of this remedy must be justified
under section 164 of the Code of Civil Procedure, which specifies the circumstance under which an
injunction may issue. Upon the general doctrine of injunction we said in Devesa vs. Arbes (13 Phil.
Rep., 273):
An injunction is a "special remedy" adopted in that code (Act No. 190) from American
practice, and originally borrowed from English legal procedure, which was there issued by
the authority and under the seal of a court of equity, and limited, as in order cases where
equitable relief is sought, to cases where there is no "plain, adequate, and complete remedy
at law," which "will not be granted while the rights between the parties are undetermined,
except in extraordinary cases where material and irreparable injury will be done," which
cannot be compensated in damages, and where there will be no adequate remedy, and
which will not, as a rule, be granted, to take property out of the possession of one party and
put it into that of another whose title has not been established by law.
We subsequently affirmed the doctrine of the Devesa case in Palafox vs. Madamba (19 Phil., Rep.,
444), and we take this occasion of again affirming it, believing, as we do, that the indiscriminate use of
injunctions should be discouraged.
CREDIT TRANSACTIONS: ATTY. MIGALLOS WEEK 1 18
Does the fact that the appellants did not know at the time the identity of the original lessee of the film
militate against Gilchrist's right to a preliminary injunction, although the appellant's incurred civil liability
for damages for such interference? In the examination of the adjudicated cases, where in injunctions
have been issued to restrain wrongful interference with contracts by strangers to such contracts, we
have been unable to find any case where this precise question was involved, as in all of those cases
which we have examined, the identity of both of the contracting parties was known to the tort-feasors.
We might say, however, that this fact does not seem to have a controlling feature in those cases. There
is nothing in section 164 of the Code of Civil Procedure which indicates, even remotely, that before an
injunction may issue restraining the wrongful interference with contrast by strangers, the strangers
must know the identity of both parties. It would seem that this is not essential, as injunctions frequently
issue against municipal corporations, public service corporations, public officers, and others to restrain
the commission of acts which would tend to injuriously affect the rights of person whose identity the
respondents could not possibly have known beforehand. This court has held that in a proper case
injunction will issue at the instance of a private citizen to restrain ultra vires acts of public officials.
(Severino vs. Governor-General, 16 Phil. Rep., 366.) So we proceed to the determination of the main
question of whether or not the preliminary injunction ought to have been issued in this case.
As a rule, injunctions are denied to those who have an adequate remedy at law. Where the choice is
between the ordinary and the extraordinary processes of law, and the former are sufficient, the rule will
not permit the use of the latter. (In re Debs, 158 U. S., 564.) If the injury is irreparable, the ordinary
process is inadequate. In Wahle vs.Reinbach (76 Ill., 322), the supreme court of Illinois approved a
definition of the term "irreparable injury" in the following language: "By `irreparable injury' is not meant
such injury as is beyond the possibility of repair, or beyond possible compensation in damages, nor
necessarily great injury or great damage, but that species of injury, whether great or small, that ought
not to be submitted to on the one hand or inflicted on the other; and, because it is so large on the one
hand, or so small on the other, is of such constant and frequent recurrence that no fair or reasonable
redress can be had therefor in a court of law." (Quoted with approval in Nashville R. R.
Co. vs. McConnell, 82 Fed., 65.)
The case at bar is somewhat novel, as the only contract which was broken was that between Cuddy
and Gilchrist, and the profits of the appellee depended upon the patronage of the public, for which it is
conceded the appellants were at liberty to complete by all fair does not deter the application of
remarked in the case of the "ticket scalpers" (82 Fed., 65), the novelty of the facts does not deter the
application of equitable principles. This court takes judicial notice of the general character of a
cinematograph or motion-picture theater. It is a quite modern form of the play house, wherein, by
means of an apparatus known as a cinematograph or cinematograph, a series of views representing
closely successive phases of a moving object, are exhibited in rapid sequence, giving a picture which,
owing to the persistence of vision, appears to the observer to be in continuous motion. (The
Encyclopedia Britanica, vol. 6, p. 374.) The subjects which have lent themselves to the art of the
photographer in this manner have increased enormously in recent years, as well as have the places
where such exhibition are given. The attendance, and, consequently, the receipts, at one of these
cinematograph or motion-picture theaters depends in no small degree upon the excellence of the
photographs, and it is quite common for the proprietor of the theater to secure an especially attractive
exhibit as his "feature film" and advertise it as such in order to attract the public. This feature film is
depended upon to secure a larger attendance that if its place on the program were filled by other films
of mediocre quality. It is evident that the failure to exhibit the feature film will reduce the receipts of the
theater.
Hence, Gilchrist was facing the immediate prospect of diminished profits by reason of the fact that the
appellants had induced Cuddy to rent to them the film Gilchrist had counted upon as his feature film. It
is quite apparent that to estimate with any decree of accuracy the damages which Gilchrist would likely
suffer from such an event would be quite difficult if not impossible. If he allowed the appellants to
exhibit the film in Iloilo, it would be useless for him to exhibit it again, as the desire of the public to
witness the production would have been already satisfied. In this extremity, the appellee applied for
and was granted, as we have indicated, a mandatory injunction against Cuddy requiring him to deliver
the Zigomar to Gilchrist, and a preliminary injunction against the appellants restraining them from
exhibiting that film in their theater during the weeks he (Gilchrist) had a right to exhibit it. These
injunction saved the plaintiff harmless from damages due to the unwarranted interference of the
defendants, as well as the difficult task which would have been set for the court of estimating them in
case the appellants had been allowed to carry out their illegal plans. As to whether or not the
mandatory injunction should have been issued, we are not, as we have said, called upon to determine.
So far as the preliminary injunction issued against the appellants is concerned, which prohibited them

from exhibiting the Zigomar during the week which Gilchrist desired to exhibit it, we are of the opinion
that the circumstances justified the issuance of that injunction in the discretion of the court.
We are not lacking in authority to support our conclusion that the court was justified in issuing the
preliminary injunction against the appellants. Upon the precise question as to whether injunction will
issue to restrain wrongful interference with contracts by strangers to such contracts, it may be said that
courts in the United States have usually granted such relief where the profits of the injured person are
derived from his contractual relations with a large and indefinite number of individuals, thus reducing
him to the necessity of proving in an action against the tort-feasor that the latter was responsible in
each case for the broken contract, or else obliging him to institute individual suits against each
contracting party and so exposing him to a multiplicity of suits. Sperry & Hutchinson Co. vs.Mechanics'
Clothing Co. (128 Fed., 800); Sperry & Hutchinson Co. vs. Louis Weber & Co. (161 Fed., 219); Sperry
& Hutchinson Co. vs. Pommer (199 Fed., 309); were all cases wherein the respondents were inducing
retail merchants to break their contracts with the company for the sale of the latters' trading stamps.
Injunction issued in each case restraining the respondents from interfering with such contracts.
In the case of the Nashville R. R. Co. vs. McConnell (82 Fed., 65), the court, among other things, said:
"One who wrongfully interferes in a contract between others, and, for the purpose of gain to himself
induces one of the parties to break it, is liable to the party injured thereby; and his continued
interference may be ground for an injunction where the injuries resulting will be irreparable."
In Hamby & Toomer vs. Georgia Iron & Coal Co. (127 Ga., 792), it appears that the respondents were
interfering in a contract for prison labor, and the result would be, if they were successful, the shutting
down of the petitioner's plant for an indefinite time. The court held that although there was no
contention that the respondents were insolvent, the trial court did not abuse its discretion in granting a
preliminary injunction against the respondents.
In Beekman vs. Marsters (195 Mass., 205), the plaintiff had obtained from the Jamestown Hotel
Corporation, conducting a hotel within the grounds of the Jamestown Exposition, a contract whereby
he was made their exclusive agent for the New England States to solicit patronage for the hotel. The
defendant induced the hotel corporation to break their contract with the plaintiff in order to allow him to
act also as their agent in the New England States. The court held that an action for damages would not
have afforded the plaintiff adequate relief, and that an injunction was proper compelling the defendant
to desist from further interference with the plaintiff's exclusive contract with the hotel company.
In Citizens' Light, Heat & Power Co. vs. Montgomery Light & Water Power Co. (171 Fed., 553), the
court, while admitting that there are some authorities to the contrary, held that the current authority in
the United States and England is that:
The violation of a legal right committed knowingly is a cause of action, and that it is a
violation of a legal right to interfere with contractual relations recognized by law, if there be
no sufficient justification for the interference. (Quinn vs. Leatham, supra, 510;
Angle vs. Chicago, etc., Ry. Co., 151 U. S., 1; 14 Sup. Ct., 240; 38 L. Ed., 55;
Martens vs. Reilly, 109 Wis., 464, 84 N. W., 840; Rice vs. Manley, 66 N. Y., 82; 23 Am.
Rep., 30; Bitterman vs. L. & N. R. R. Co., 207 U. S., 205; 28 Sup. Ct., 91; 52 L. Ed., 171;
Beekman vs. Marsters, 195 Mass., 205; 80 N. E., 817; 11 L. R. A. [N. S.] 201; 122 Am. St.
Rep., 232; South Wales Miners' Fed. vs.Glamorgan Coal Co., Appeal Cases, 1905, p. 239.)
See also Nims on Unfair Business Competition, pp. 351- 371.
In 3 Elliot on Contracts, section 2511, it is said: "Injunction is the proper remedy to prevent a wrongful
interference with contract by strangers to such contracts where the legal remedy is insufficient and the
resulting injury is irreparable. And where there is a malicious interference with lawful and valid
contracts a permanent injunction will ordinarily issue without proof of express malice. So, an injunction
may be issued where the complainant to break their contracts with him by agreeing to indemnify who
breaks his contracts of employment may be adjoined from including other employees to break their
contracts and enter into new contracts with a new employer of the servant who first broke his contract.
But the remedy by injunction cannot be used to restrain a legitimate competition, though such
competition would involve the violation of a contract. Nor will equity ordinarily enjoin employees who
have quit the service of their employer from attempting by proper argument to persuade others from
taking their places so long as they do not resort to force or intimidations on obstruct the public
thoroughfares."
Beekman vs. Marster, supra, is practically on all fours with the case at bar in that there was only one
contract in question and the profits of the injured person depended upon the patronage of the public.
CREDIT TRANSACTIONS: ATTY. MIGALLOS WEEK 1 19
Hamby & Toomer vs.Georgia Iron & Coal Co., supra, is also similar to the case at bar in that there was
only one contract, the interference of which was stopped by injunction.
For the foregoing reasons the judgment is affirmed, with costs, against the appellants.
Arellano, C.J., Torres, Carson and Araullo, JJ., concur.
Separate Opinions
MORELAND, J., concurring:
The court seems to be of the opinion that the action is one for a permanent injunction; whereas, under
my view of the case, it is one for specific performance. The facts are simple. C. S. Gilchrist, the plaintiff,
proprietor of the Eagle Theater of Iloilo, contracted with E. A. Cuddy, one of the defendants, of Manila,
for a film entitled "Zigomar or Eelskin, 3d series," to be exhibited in his theater in Iloilo during the week
beginning May 26, 1913. Later, the defendants Espejo and Zaldarriaga, who were also operating a
theater in Iloilo, representing Pathe Freres, also obtained from Cuddy a contract for the exhibition of
the film aforesaid in their theater in Iloilo during the same week.
The plaintiff commenced this action against Cuddy and the defendants Espejo and Zaldarriaga for the
specific performance of the contract with Cuddy. The complaint prays "that the court, by a mandatory
injunction, order Cuddy to deliver, on the 24th of May, 1913, in accordance with the aforesaid contract,
the said film 'Zigomar, 3d series, or Eelskin,' to the plaintiff Gilchrist, in accordance with the terms of
the agreement, so that plaintiff can exhibit the same during the last week beginning May 26, 1913, in
the Eagle Theater, in Iloilo; that the court issue a preliminary injunction against the defendants Espejo
and Zaldarriaga prohibiting them from receiving, exhibiting, or using said film in Iloilo during the last
week of May, 1913, or at any other time prior to the delivery to the plaintiff ; that, on the trial, said
injunction be made perpetual and that Cuddy be ordered and commanded to specifically perform his
contract with the plaintiff ."
On the filing of the complaint the plaintiff made an application for a mandatory injunction compelling the
defendant Cuddy to deliver to plaintiff the film in question by mailing it to him from Manila on the 24th of
May so that it would reach Iloilo for exhibition on the 26th; and for a preliminary restraining order
against the order two defendants prohibiting them from receiving or exhibiting the said film prior to its
exhibition by plaintiff.
The court, on this application, entered an order which provided that Cuddy should "not send said film
'Zigomar, 3d series, or Eelskin,' to the defendants Espejo and Zaldarriaga and that he should send it to
the plaintiff, Gilchrist, on the 24th day of May, 1913, in the mail for Iloilo," This order was duly served
on the defendants, including Cuddy, in whose possession the film still was, and, in compliance
therewith Cuddy mailed the film to the plaintiff at Iloilo on the 24th of May. The latter duly received it
and exhibited it without molestation during the week beginning the 26th of May in accordance with the
contract which he claimed to have made with Cuddy.
The defendants Espejo and Zaldarriaga having received due notice of the issuance of the mandatory
injunction and restraining order of the 22d of May, appeared before the court on the 26th of May and
moved that the court vacate so much of the order as prohibited them from receiving and exhibiting the
film. In other words, while the order of the 22d of May was composed of two parts, one a mandatory
order for immediate specific performance of the plaintiff's contract with the defendant Cuddy, and the
other a preliminary restraining order directed to Espejo and Zaldarriaga prohibiting them from receiving
and exhibiting the film during the week beginning the 26th of May, their motion of the 26th of
May referred exclusively to the injunction against them and touched in no way that portion of the order
which required the immediate performance by Cuddy of his contract with Gilchrist. Indeed, the
defendants Espejo and Zaldarriaga did not even except to the order requiring Cuddy to specifically
perform his agreement with the plaintiff nor did they in any way make an objection to or show their
disapproval of it. It was not excepted to or appealed from and is not before this court for review.
The motion of Espejo and Zaldarriaga to vacate the injunction restraining them from receiving the film
was denied on the 26th of May. After the termination of the week beginning May 26th, and after the
exhibition of the film by the plaintiff in accordance with the alleged contract with Cuddy, the plaintiff
came into court and moved that, in view of the fact that he had already obtained all that he desired to
obtain or could obtain by his action, namely, the exhibition of the film in question during the week
beginning May 26th, there was no reason for continuing it and moved for its dismissal. To this motion
Cuddy consented and the action was dismissed as to him. But the other defendants objected to the
dismissal of the action on the ground that they desired to present to the court evidence showing the

damages which they had suffered by reason of the issuance of the preliminary injunction prohibiting
them from receiving and exhibiting the film in question during the week beginning May 26. The court
sustained their objection and declined to dismiss the action as to them, and, on the 8th of August,
heard the evidence as to damages. He denied defendants the relief asked for and dismissed their
claim for damages. They thereupon took an appeal from that order, and that is the appeal which we
have now before us and which is the subject of the opinion of the court with which I am concurring.
We thus have this strange condition:
An action for specific performance of a contract to deliver a film for exhibition during a given time. A
preliminary mandatory injunction ordering the delivery of the film in accordance with the contract. The
delivery of the film in accordance with the preliminary mandatory injunction. The actual exhibition of the
film during the time specified in the contract. No objection to the issuance of the mandatory injunction,
to the delivery of the film, or to the ground that the plaintiff had obtained full relief by means of the so-
called preliminary remedy by virtue of which the contract was actually specifically performed before the
action was tried. No objection or exception to the order requiring the specific performance of the
contract.
Under such conditions it is possible for the defendant Espejo and Zaldarriaga to secure damages for
the wrongful issuance of the preliminary injunction directed against them even though it be admitted
that it was erroneously issued and that there was no ground therefor whatever? It seems to me that it is
not. At the time this action was begun the film, as we have seen, was in the possession of Cuddy and,
while in his possession, he complied with a command of the court to deliver it to plaintiff. In pursuance
of that command he delivered it to plaintiff, who used it during the time specified in his contract with
Cuddy; or, in other words, he made such use of it as he desired and then returned it to Cuddy. This
order and the delivery of the film under it were made in an action in which the defendants Espejo and
Zaldarriaga were parties, without objection on their part and without objection or exception to the order.
The film having been delivered to defendants' competitor, the plaintiff, under a decree of the court to
which they made no objection and took no exception and from which they have not appealed, what
injury can they show by reason of the injunction restraining them from making use of the film? If they
themselves, by their conduct, permitted the plaintiff to make it impossible for them to gain possession
of the film and to use it, then the preliminary injunction produced no injury for the reason that no harm
can result from restraining a party from doing a thing which, without such restraint, it would be
impossible for him to do. Moreover, the order for the delivery of the film to plaintiff was a complete
determination of the rights of the parties to the film which, while the court had no right to make,
nevertheless, was valid and binding on all the parties, none of them objecting or taking exception
thereto. Being a complete determination of the rights of the parties to the action, it should have been
the first point attacked by the defendants, as it foreclosed them completely and, if left in force,
eliminating every defense. This order was made on May 22d and was not excepted to or appealed
from. On the 8th of August following the defendants appealed from the order dismissing their claim to
damages but the order for the delivery of the film to plaintiff was final at that time and is now conclusive
on this court.
Section 143 of the Code of Civil Procedure, providing for appeals by bill of exceptions, provides that
"upon the rendition of final judgment disposing of the action, either party shall have the right to perfect
a bill of exceptions for a review by the Supreme Court of all rulings, orders, and judgment made in the
action, to which the party has duly excepted at the time of making such ruling, order, or judgment."
While the order for the delivery of the film to plaintiff was in one sense a preliminary order, it was in
reality a final determination of the rights of the parties to the film, as it ordered the delivery thereof to
plaintiff for his use. If it had been duly excepted to, its validity could have been attacked in an appeal
from the final judgment thereafter entered in the action. Not having been excepted to as required by the
section just referred to, it became final and conclusive on all the parties to the action, and when, on the
8th day of August following, the defendants presented their claim for damages based on the alleged
wrongful issuance of a temporary restraining order, the whole foundation of their claim had
disappeared by virtue of the fact that the execution of the order of the 22d of May had left nothing for
them to litigate. The trial court, on the 8th of August, would have been fully justified in refusing to hear
the defendants on their claim for damages. Their right thereto had been adjudicated on the 22d of May
and that adjudication had been duly put into execution without protest, objection or exception, and was,
therefore, final and conclusive on them on the 8th of August.
I have presented this concurring opinion in an attempt to prevent confusion, if any, which might arise
from the theory on which the court decides this case. It seems to me impossible that the action can be
one for a permanent injunction. The very nature of the case demonstrates that a permanent injunction
is out of the question. The only thing that plaintiff desired was to be permitted to use the film for the
CREDIT TRANSACTIONS: ATTY. MIGALLOS WEEK 1 20
week beginning the 26th of May. With the termination of that week his rights expired. After that time
Cuddy was perfectly free to turn the film over to the defendants Espejo and Zaldarriaga for exhibition at
any time. An injunction permanently prohibiting the defendants from exhibiting the film in Iloilo would
have been unjustifiable, as it was something that plaintiff did not ask and did not want; and would have
been an invasion of the rights of Cuddy as, after the termination of the week beginning May 26, he was
at liberty, under his contract with plaintiff, to rent the film to the defendants Espejo and Zaldarriaga and
permit its exhibition in Iloilo at any time. The plaintiff never asked to have
defendants permanently enjoined from exhibiting the film in Iloilo and no party to the action has
suggested such thing.
The action is one for specific performance purely; and while the court granted plaintiff rights which
should have been granted only after a trial of the action, nevertheless, such right having been granted
before trial and none of the defendants having made objection or taken exception thereto, and the
order granting them having become final, such order became a final determination of the action, by
reason of the nature of the action itself, the rights of the parties became thereby finally determined and
the defendants Espejo and Zaldarriaga, being parties to the action, were precluded from further
litigation relative to the subject matter of the controversy.
No damages are claimed by reason of the issuance of the mandatory injunction under which the film
was delivered to plaintiff and used by him during the week beginning the 26th of May. While the opinion
says in the first paragraph that the action is "for damages against the plaintiff for the alleged wrongful
issuance of a mandatory and preliminary injunction," the opinion also says in a latter portion that "It will
be unnecessary for us to inquire whether the mandatory injunction against Cuddy was properly issued
or not. No question is raised with reference to the issuance of that injunction;" and still later it is also
stated that "as to whether or not the mandatory injunction should have been issued, we are not, as we
have said, called upon to determine." I repeat that no objection was made by the defendants to the
issuance of the mandatory injunction, no exception was taken to the order on which it was issued and
no appeal has been taken therefrom. That order is now final and conclusive and was at the time this
appeal was taken. That being so, the rights of the defendants were foreclosed thereby. The defendants
Espejo and Zaldarriaga cannot now be heard to say that they were damaged by the issuance of the
preliminary restraining injunction issued on the same day as the mandatory injunction.
From what has been said it is clear, it seems to me, that the question of a breach of contract by
inducement, which is substantially the only question discussed and decided, is not in the case in reality
and, in my judgment, should not be touched upon. Courts will not proceed with a litigation and discuss
and decided question which might possibly be involved in the case when it clearly appears that there
remains nothing about which to litigate, the whole subject matter of the original action having been
settled and the parties having no real controversy to present. At the time the defendants Espejo and
Zaldarriaga offered their claim for damages arising out of the wrongful issuance of the restraining
order, there was nothing between them and the plaintiff to litigate, the rightfulness of plaintiff's demand
having already been finally adjudicated and determined in the same action.

EN BANC
G.R. No. 129029 April 3, 2000
RAFAEL REYES TRUCKING CORPORATION, petitioner,
vs.
PEOPLE OF THE PHILIPPINES and ROSARIO P. DY (for herself and on behalf of the minors Maria
Luisa, Francis Edward, Francis Mark and Francis Rafael, all surnamed Dy), respondents.
PARDO, J.:
The case is an appeal via certiorari from the amended decision 1 of the Court of Appeals2 affirming the
decision and supplemental decision of the trial court,3 as follows:
IN VIEW OF THE FOREGOING, judgment is hereby rendered dismissing the appeals
interposed by both accused and Reyes Trucking Corporation and affirming the Decision and
Supplemental Decision dated June 6, 1992 and October 26, 1992 respectively.
SO ORDERED.4
The facts are as follows:
On October 10, 1989, Provincial Prosecutor Patricio T. Durian of Isabela filed with the Regional Trial
Court, Isabela, Branch 19, Cauayan an amended information charging Romeo Dunca y de Tumol with
reckless imprudence resulting in double homicide and damage to property, reading as follows:
That on or about the 20th day of June, 1989, in the Municipality of Cauayan, Province of
Isabela, Philippines, and within the jurisdiction of this Honorable Court, the said accused being
the driver and person-in-charge of a Trailer Truck Tractor bearing Plate No. N2A-867
registered in the name of Rafael Reyes Trucking Corporation, with a load of 2,000 cases of
empty bottles of beer grande, willfully, unlawfully and feloniously drove and operated the same
while along the National Highway of Barangay Tagaran, in said Municipality, in a negligent,
careless and imprudent manner, without due regard to traffic laws, rules and ordinances and
without taking the necessary precautions to prevent injuries to persons and damage to
property, causing by such negligence, carelessness and imprudence the said trailer truck to hit
and bump a Nissan Pick-up bearing Plate No. BBG-957 driven by Feliciano Balcita and
Francisco Dy, Jr., @ Pacquing, due to irreversible shock, internal and external hemorrhage
and multiple injuries, open wounds, abrasions, and further causing damages to the heirs of
Feliciano Balcita in the amount of P100,000.00 and to the death of Francisco Dy, Jr.; @
Pacquing and damages to his Nissan Pick-Up bearing Plate No. BBG-957 in the total amount
of P2,000,000.00.
CONTRARY TO LAW.
Cauayan, Isabela, October 10, 1989.
(Sgd.) FAUSTO C. CABANTAC
Third Assistant Provincial Prosecutor
Upon arraignment on October 23, 1989, the accused entered a plea of not guilty. On the same occasion,
the offended parties (Rosario P. Dy and minor children and Angelina M. Balcita and minor son Paolo)
made a reservation to file a separate civil action against the accused arising from the offense
charged.5 On November 29, 1989, the offended parties actually filed with the Regional Trial Court,
Isabela, Branch 19, Cauayan a complaint against petitioner Rafael Reyes Trucking Corporation, as
employer of driver Romeo Dunca y de Tumol, based on quasi delict. The petitioner settled the claim of
the heirs of Feliciano Balcita (the driver of the other vehicle involved in the accident). The private
respondents opted to pursue the criminal action but did not withdraw the civil case quasi ex delicto they
filed against petitioner. On December 15, 1989, private respondents withdrew the reservation to file a
separate civil action against the accused and manifested that they would prosecute the civil aspect ex
delicto in the criminal action.6 However, they did not withdraw the separate civil action based on quasi
delict against petitioner as employer arising from the same act or omission of the accused driver. 7
Upon agreement of the parties, the trial court consolidated both criminal and civil cases and conducted a
joint trial of the same.
The facts, as found by the trial court, which appear to be undisputed, are as follows:
The defendant Rafael Reyes Trucking Corporation is a domestic corporation engaged in the
business of transporting beer products for the San Miguel Corporation (SMC for Short) from
the latter's San Fernando, Pampanga plant to its various sales outlets in Luzon. Among its
fleets of vehicles for hire is the white truck trailer described above driven by Romeo Dunca y
Tumol, a duly licensed driver. Aside from the Corporation's memorandum to all its drivers and
helpers to physically inspect their vehicles before each trip (Exh. 15, pars. 4 & 5), the SMC's
Traffic Investigator-Inspector certified the roadworthiness of this White Truck trailer prior to
June 20, 1989 (Exh. 17). In addition to a professional driver's license, it also conducts a rigid
examination of all driver applicants before they are hired.
CREDIT TRANSACTIONS: ATTY. MIGALLOS WEEK 1 21
In the early morning of June 20, 1989, the White Truck driven by Dunca left Tuguegarao,
Cagayan bound to San Fernando, Pampanga loaded with 2,000 cases of empty beer
"Grande" bottles. Seated at the front right seat beside him was Ferdinand Domingo, his truck
helper ("pahinante" in Pilipino). At around 4:00 o'clock that same morning while the truck was
descending at a slight downgrade along the national road at Tagaran, Cauayan, Isabela, it
approached a damaged portion of the road covering the full width of the truck's right lane
going south and about six meters in length. These made the surface of the road uneven
because the potholes were about five to six inches deep. The left lane parallel to this damaged
portion is smooth. As narrated by Ferdinand Domingo, before approaching the potholes, he
and Dunca saw the Nissan with its headlights on coming from the opposite direction. They
used to evade this damaged road by taking the left lance but at that particular moment,
because of the incoming vehicle, they had to run over it. This caused the truck to bounce
wildly. Dunca lost control of the wheels and the truck swerved to the left invading the lane of
the Nissan. As a result, Dunca's vehicle rammed the incoming Nissan dragging it to the left
shoulder of the road and climbed a ridge above said shoulder where it finally stopped.
(see Exh. A-5, p. 8, record). The Nissan was severely damaged (Exhs. A-7, A-8, A-9 and A-
14, pp. 9-11 record), and its two passengers, namely: Feliciano Balcita and Francisco Dy, Jr.
died instantly (Exh. A-19) from external and internal hemorrhage and multiple fractures (pp. 15
and 16, record).
For the funeral expenses of Francisco Dy, Jr. her widow spent P651,360.00 (Exh. I-3). At the
time of his death he was 45 years old. He was the President and Chairman of the Board of the
Dynamic Wood Products and Development Corporation (DWPC), a wood processing
establishment, from which he was receiving an income of P10,000.00 a month. (Exh. D). In the
Articles of Incorporation of the DWPC, the spouses Francisco Dy, Jr. and Rosario Perez Dy
appear to be stockholders of 10,000 shares each with par value of P100.00 per share out of its
outstanding and subscribed capital stock of 60,000 shares valued at P6,000,000.00 (Exhs. K-1
& 10-B). Under its 1988 Income Tax Returns (Exh. J) the DWPC had a taxable net income of
P78,499.30 (Exh. J). Francisco Dy, Jr. was a La Salle University graduate in Business
Administration, past president of the Pasay Jaycees, National Treasurer and President of the
Philippine Jaycees in 1971 and 1976, respectively, and World Vice-President of Jaycees
International in 1979. He was also the recipient of numerous awards as a civic leader (Exh. C).
His children were all studying in prestigious schools and spent about P180,000.00 for their
education in 1988 alone (Exh. H-4).
As stated earlier, the plaintiffs' procurement of a writ of attachment of the properties of the
Corporation was declared illegal by the Court of Appeals. It was shown that on December 26,
1989, Deputy Sheriff Edgardo Zabat of the RTC at San Fernando, Pampanga, attached six
units of Truck Tractors and trailers of the Corporation at its garage at San Fernando,
Pampanga. These vehicles were kept under PC guard by the plaintiffs in said garage thus
preventing the Corporation to operate them. However, on December 28, 1989, the Court of
Appeals dissolved the writ (p. 30, record) and on December 29, 1989, said Sheriff reported to
this Court that the attached vehicles were taken by the defendant's representative, Melita
Manapil (Exh. O, p. 31, record). The defendant's general Manager declared that it lost
P21,000.00 per day for the non-operation of the six units during their attachment (p. 31, t.s.n.,
Natividad C. Babaran, proceedings on December 10, 1990).8
On June 6, 1992, the trial court rendered a joint decision, the dispositive portion of which reads as
follows:
WHEREFORE, in view of the foregoing considerations judgment is hereby rendered:
1. Finding the accused Romeo Dunca y de Tumol guilty beyond reasonable doubt of the crime
of Double Homicide through Reckless Imprudence with violation of the Motor Vehicle Law
(Rep. Act No. 4136), and appreciating in his favor the mitigating circumstance of voluntary
surrender without any aggravating circumstance to offset the same, the Court hereby
sentences him to suffer two (2) indeterminate penalties of four months and one day of arresto
mayor as minimum to three years, six months and twenty days as maximum; to indemnify the
Heirs of Francisco Dy. Jr. in the amount of P3,000,000.00 as compensatory damages,
P1,000,000.00 as moral damages, and P1,030,000.00 as funeral expenses;
2. Ordering the plaintiff in Civil Case No. Br. 19-424 to pay the defendant therein actual
damages in the amount of P84,000.00; and
3. Ordering the dismissal of the complaint in Civil Case No. Br. 19-424.
No pronouncement as to costs.
SO ORDERED.

Cauayan, Isabela, June 6, 1992.
(Sgd.) ARTEMIO R. ALIVIA
Regional Trial Judge9
On September 3, 1992, petitioner and the accused filed a notice of appeal from the joint decision. 10
On the other hand, private respondents moved for amendment of the dispositive portion of the joint
decision so as to hold petitioner subsidiarily liable for the damages awarded to the private respondents in
the event of insolvency of the accused. 11
On October 26, 1992, the trial court rendered a supplemental decision amending the dispositive portion
by inserting an additional paragraph reading as follows:
2:A Ordering the defendant Reyes Trucking Corporation subsidiarily liable for all the
damages awarded to the heirs of Francisco Dy, Jr., in the event of insolvency of the accused
but deducting therefrom the damages of P84,000.00 awarded to said defendant in the next
preceding paragraph; and . . . 12
On November 12, 1992, petitioner filed with the trial court a supplemental notice of appeal from the
supplemental decision. 13
During the pendency of the appeal, the accused jumped bail and fled to a foreign country. By resolution
dated December 29, 1994, the Court of Appeals dismissed the appeal of the accused in the criminal
case. 14
On January 6, 1997, the Court of Appeals rendered an amended decision affirming that of the trial court,
as set out in the opening paragraph of this decision. 15
On January 31, 1997, petitioner filed a motion for reconsideration of the amended decision. 16
On April 21, 1997, the Court of Appeals denied petitioner's motion for reconsideration for lack of merit 17
Hence, this petition for review. 18
On July 21, 1997, the Court required respondents to comment on the petition within ten (10) days from
notice. 19
On January 27, 1998, the Solicitor General filed his comment. 20 On April 13, 1998, the Court granted
leave to petitioner to file a reply and noted the reply it filed on March 11, 1998. 21
We now resolve to give due course to the petition and decide the case.
Petitioner raises three (3) grounds for allowance of the petition, which, however, boil down to two (2)
basic issues, namely:
1. May petitioner as owner of the truck involved in the accident be held subsidiarily liable for
the damages awarded to the offended parties in the criminal action against the truck driver
despite the filing of a separate civil action by the offended parties against the employer of the
truck driver?
2. May the Court award damages to the offended parties in the criminal case despite the filing
of a civil action against the employer of the truck driver; and in amounts exceeding that alleged
in the information for reckless imprudence resulting in homicide and damage to property? 22
We grant the petition, resolving under the circumstances pro hac vice to remand the cases to the trial
court for determination of the civil liability of petitioner as employer of the accused driver in the civil
action quasi ex delicto re-opened for the purpose.
In negligence cases, the aggrieved party has the choice between (1) an action to enforce civil liability
arising from crime under Article 100 of the Revised Penal Code; and (2) a separate action for quasi
delict under Article 2176 of the Civil Code of the Philippines. Once the choice is made, the injured party
can not avail himself of any other remedy because he may not recover damages twice for the same
negligent act or omission of the accused. 23 This is the rule against double recovery.1wphi1.nt
In other words, "the same act or omission can create two kinds of liability on the part of the offender, that
is, civil liability ex delicto, and civil liability quasi delicto" either of which "may be enforced against the
culprit, subject to the caveat under Article 2177 of the Civil Code that the offended party can not recover
damages under both types of liability." 24
In the instant case, the offended parties elected to file a separate civil action for damages against
petitioner as employer of the accused, based on quasi delict, under Article 2176 of the Civil Code of the
Philippines. Private respondents sued petitioner Rafael Reyes Trucking Corporation, as the employer of
the accused, to be vicariously liable for the fault or negligence of the latter. Under the law, this vicarious
liability of the employer is founded on at least two specific provisions of law.
CREDIT TRANSACTIONS: ATTY. MIGALLOS WEEK 1 22
The first is expressed in Article 2176 in relation to Article 2180 of the Civil Code, which would allow an
action predicated on quasi-delict to be instituted by the injured party against the employer for an act or
omission of the employee and would necessitate only a preponderance of evidence to prevail. Here, the
liability of the employer for the negligent conduct of the subordinate is direct and primary, subject to the
defense of due diligence in the selection and supervision of the employee. The enforcement of the
judgment against the employer in an action based on Article 2176 does not require the employee to be
insolvent since the nature of the liability of the employer with that of the employee, the two being
statutorily considered joint tortfeasors, is solidary. 25 The second, predicated on Article 103 of the Revised
Penal Code, provides that an employer may be held subsidiarily civilly liable for a felony committed by his
employee in the discharge of his duty. This liability attaches when the employee is convicted of a crime
done in the performance of his work and is found to be insolvent that renders him unable to properly
respond to the civil liability adjudged. 26
As regards the first issue, the answer is in the negative. Rafael Reyes Trucking Corporation, as employer
of the accused who has been adjudged guilty in the criminal case for reckless imprudence, can not be
held subsidiarily liable because of the filing of the separate civil action based on quasi delict against it. In
view of the reservation to file, and the subsequent filing of the civil action for recovery of civil liability, the
same was not instituted with the criminal action. Such separate civil action was for recovery of damages
under Article 2176 of the Civil Code, arising from the same act or omission of the accused. 27
Pursuant to the provision of Rule 111, Section 1, paragraph 3 of the 1985 Rules of Criminal Procedure,
when private respondents, as complainants in the criminal action, reserved the right to file the separate
civil action, they waived other available civil actions predicated on the same act or omission of the
accused-driver. Such civil action includes the recovery of indemnity under the Revised Penal Code, and
damages under Articles 32, 33, and 34 of the Civil Code of the Philippines arising from the same act or
omission of the accused. 28
The intention of private respondents to proceed primarily and directly against petitioner as employer of
accused truck driver became clearer when they did not ask for the dismissal of the civil action against the
latter based on quasi delict.
Consequently, the Court of Appeals and the trial court erred in holding the accused civilly liable, and
petitioner-employer of the accused subsidiarily liable for damages arising from crime (ex delicto) in the
criminal action as the offended parties in fact filed a separate civil action against the employer based
on quasi delict resulting in the waiver of the civil action ex delicto.
It might be argued that private respondents as complainants in the criminal case withdrew the reservation
to file a civil action against the driver (accused) and manifested that they would pursue the civil liability of
the driver in the criminal action. However, the withdrawal is ineffective to reverse the effect of the
reservation earlier made because private respondents did not withdraw the civil action against petitioner
based on quasi delict. In such a case, the provision of Rule 111, Section 1, paragraph 3 of the 1985
Rules on Criminal Procedure is clear that the reservation to file or the filing of a separate civil action
results in a waiver of other available civil actions arising from the same act or omission of the accused.
Rule 111, Section 1, paragraph 2 enumerated what are the civil actions deemed waived upon such
reservation or filing, and one of which is the civil indemnity under the Revised Penal Code. Rule 111,
Section 1, paragraph 3 of the 1985 Rules on Criminal Procedure specifically provides:
A waiver of any of the civil actions extinguishes the others. The institution of, or the reservation
of the right to file, any of said civil actions separately waives the others.
The rationale behind this rule is the avoidance of multiple suits between the same litigants arising out of
the same act or omission of the offender. The restrictive phraseology of the section under consideration
is meant to cover all kinds of civil actions, regardless of their source in law, provided that the action has
for its basis the same act or omission of the offender. 29
However, petitioner as defendant in the separate civil action for damages filed against it, based on quasi
delict, may be held liable thereon. Thus, the trial court grievously erred in dismissing plaintiff's civil
complaint. And the Court of Appeals erred in affirming the trial court's decision. Unfortunately private
respondents did not appeal from such dismissal and could not be granted affirmative relief. 30
The Court, however, in exceptional cases has relaxed the rules "in order to promote their objectives and
assist the parties in obtaining just, speedy, and inexpensive determination of every action or
proceeding" 31 or exempted "a particular case from the operation of the rules." 32
Invoking this principle, we rule that the trial court erred in awarding civil damages in the criminal case and
in dismissing the civil action. Apparently satisfied with such award, private respondent did not appeal
 CREDIT TRANSACTIONS: ATTY. MIGALLOS WEEK 1 23

from the dismissal of the civil case. However, petitioner did appeal. Hence, this case should be remanded (2) In Civil Case No. Br. 19-424, the Court orders the case re-opened to determine the liability
to the trial court so that it may render decision in the civil case awarding damages as may be warranted of the defendant Rafael Reyes Trucking Corporation to plaintiffs and that of plaintiffs on
by the evidence. 33 defendant's counterclaim.
No costs in this instance. SO ORDERED.
With regard to the second issue, the award of damages in the criminal case was improper because the
civil action for the recovery of civil liability was waived in the criminal action by the filing of a separate civil
action against the employer. As enunciated in Ramos vs. Gonong, 34 "civil indemnity is not part of the
penalty for the crime committed." The only issue brought before the trial court in the criminal action is
whether accused Romeo Dunca y de Tumol is guilty of reckless imprudence resulting in homicide and
damage to property. The action for recovery of civil liability is not included therein, but is covered by the
separate civil action filed against the petitioner as employer of the accused truck-driver.
In this case, accused-driver jumped bail pending his appeal from his conviction. Thus, the judgment
convicting the accused became final and executory, but only insofar as the penalty in the criminal action
is concerned. The damages awarded in the criminal action was invalid because of its effective waiver.
The pronouncement was void because the action for recovery of the civil liability arising from the crime
has been waived in said criminal action.

With respect to the issue that the award of damages in the criminal action exceeded the amount of
damages alleged in the amended information, the issue is de minimis. At any rate, the trial court erred in
awarding damages in the criminal case because by virtue of the reservation of the right to bring a
separate civil action or the filing thereof, "there would be no possibility that the employer would be held
liable because in such a case there would be no pronouncement as to the civil liability of the accused. 35

As a final note, we reiterate that "the policy against double recovery requires that only one action be
maintained for the same act or omission whether the action is brought against the employee or against
his employer. 36 The injured party must choose which of the available causes of action for damages he
will bring. 37

Parenthetically, the trial court found the accused "guilty beyond reasonable doubt of the crime of Double
Homicide Through Reckless Imprudence with violation of the Motor Vehicle Law (Rep. Act No. 4136)".
There is no such nomenclature of an offense under the Revised Penal Code. Thus, the trial court was
misled to sentence the accused "to suffer two (2) indeterminate penalties of four (4) months and one (1)
day of arresto mayor, as minimum, to three (3) years, six (6) months and twenty (20) days of prision
correccional, as maximum." This is erroneous because in reckless imprudence cases, the actual penalty
for criminal negligence bears no relation to the individual willfull crime or crimes committed, but is set in
relation to a whole class, or series of crimes. 38

Unfortunately, we can no longer correct this judgment even if erroneous, as it is, because it has become
final and executory.

Under Article 365 of the Revised Penal Code, criminal negligence "is treated as a mere quasi offense,
and dealt with separately from willful offenses. It is not a question of classification or terminology. In
intentional crimes, the act itself is punished; in negligence or imprudence, what is principally penalized is
the mental attitude or condition behind the act, the dangerous recklessness, lack of care or foresight,
the imprudencia punible. Much of the confusion has arisen from the common use of such descriptive
phrase as "homicide through reckless imprudence", and the like; when the strict technical sense is, more
accurately, "reckless imprudence resulting in homicide"; or "simple imprudence causing damages to
property"." 39

There is need, therefore, to rectify the designation of the offense without disturbing the imposed penalty
for the guidance of bench and bar in strict adherence to precedent.

WHEREFORE, the Court GRANTS the petition and SETS ASIDE the amended decision and resolution of
the Court of Appeals in CA-G.R. CR No. 14448, promulgated on January 6, 1997, and the joint decision
of the Regional Trial Court, Isabela, Branch 19, Cauayan, in Criminal Case No. Br. 19-311 and Civil Case
No. Br. 19-424, dated June 6, 1992.
IN LIEU THEREOF, the Court renders judgment as follows:
(1) In Criminal Case No. Br. 19-311, the Court declares the accused Romeo Dunca y de
Tumol guilty beyond reasonable doubt of reckless imprudence resulting in homicide and
damage to property, defined and penalized under Article 365, paragraph 2 of the Revised
Penal Code, with violation of the automobile law (R.A. No. 4136, as amended), and sentences
him to suffer two (2) indeterminate penalties of four (4) months and one (1) day of arresto
mayor, as minimum, to three (3) years, six (6) months and twenty (20) days ofprision
correccional, as maximum, 40 without indemnity, and to pay the costs, and

Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 110295 October 18, 1993
COCA-COLA BOTTLERS PHILIPPINES, INC.,
vs.
THE HONORABLE COURT OF APPEALS (Fifth Division) and MS. LYDIA GERONIMO,
respondents.
Angara, Abello, Concepcion, Regala & Cruz Law Offices for petitioner.
Alejandro M. Villamil for private respondent.
DAVIDE, JR., J.:
This case concerns the proprietress of a school canteen which had to close down as a
consequence of the big drop in its sales of soft drinks triggered by the discovery of foreign
substances in certain beverages sold by it. The interesting issue posed is whether the
subsequent action for damages by the proprietress against the soft drinks manufacturer should
be treated as one for breach of implied warranty against hidden defects or merchantability, as
claimed by the manufacturer, the petitioner herein which must therefore be filed within six
months from the delivery of the thing sold pursuant to Article 1571 of the Civil Code, or one
for quasi-delict, as held by the public respondent, which can be filed within four years pursuant
to Article 1146 of the same Code.
On 7 May 1990, Lydia L. Geronimo, the herein private respondent, filed a complaint for damages
against petitioner with the Regional Trial Court (RTC) of Dagupan City. 1 The case was docketed
as Civil Case No. D-9629. She alleges in her complaint that she was the proprietress of
Kindergarten Wonderland Canteen docketed as located in Dagupan City, an enterprise engaged
in the sale of soft drinks (including Coke and Sprite) and other goods to the students of
Kindergarten Wonderland and to the public; on or about 12 August 1989, some parents of the
students complained to her that the Coke and Sprite soft drinks sold by her contained fiber-like
matter and other foreign substances or particles; he then went over her stock of softdrinks and
discovered the presence of some fiber-like substances in the contents of some unopened Coke
bottles and a plastic matter in the contents of an unopened Sprite bottle; she brought the said
bottles to the Regional Health Office of the Department of Health at San Fernando, La Union, for
examination; subsequently, she received a letter from the Department of Health informing her
that the samples she submitted "are adulterated;" as a consequence of the discovery of the
foreign substances in the beverages, her sales of soft drinks severely plummeted from the usual
10 cases per day to as low as 2 to 3 cases per day resulting in losses of from P200.00 to
P300.00 per day, and not long after that she had to lose shop on 12 December 1989; she
became jobless and destitute; she demanded from the petitioner the payment of damages but
was rebuffed by it. She prayed for judgment ordering the petitioner to pay her P5,000.00 as
actual damages, P72,000.00 as compensatory damages, P500,000.00 as moral damages,
P10,000.00 as exemplary damages, the amount equal to 30% of the damages awarded as
attorney's fees, and the costs. 2
The petitioner moved to dismiss 3 the complaint on the grounds of failure to exhaust
administrative remedies and prescription. Anent the latter ground, the petitioner argued that
since the complaint is for breach of warranty under Article 1561 of the said Code. In her
Comment 4 thereto, private respondent alleged that the complaint is one for damages which
does not involve an administrative action and that her cause of action is based on an injury to
plaintiff's right which can be brought within four years pursuant to Article 1146 of the Civil Code;
hence, the complaint was seasonably filed. Subsequent related pleadings were thereafter filed
by the parties. 5
In its Order of 23 January 1991, 6 the trial court granted the motion to dismiss. It ruled that the
doctrine of exhaustion of administrative remedies does not apply as the existing administrative
remedy is not adequate. It also stated that the complaint is based on a contract, and not
on quasi-delict, as there exists pre-existing contractual relation between the parties; thus, on the
CREDIT TRANSACTIONS: ATTY. MIGALLOS WEEK 1 24
basis of Article 1571, in relation to Article 1562, the complaint should have been filed within six
months from the delivery of the thing sold.
Her motion for the reconsideration of the order having been denied by the trial court in its Order
of 17 April 1991, 7the private respondent came to this Court via a petition for review
on certiorari which we referred to the public respondent "for proper determination and
disposition. 8 The public respondent docketed the case as CA-G.R. SP No. 25391.
In a decision promulgated on 28 January 1992, 9 the public respondent annulled the questioned
orders of the RTC and directed it to conduct further proceedings in Civil Case No. D-9629. In
holding for the private respondent, it ruled that:
Petitioner's complaint being one for quasi-delict, and not for breach of
warranty as respondent contends, the applicable prescriptive period is four
years.
It should be stressed that the allegations in the complaint plainly show that it
is an action or damages arising from respondent's act of "recklessly and
negligently manufacturing adulterated food items intended to be sold or
public consumption" (p. 25, rollo). It is truism in legal procedure that what
determines the nature of an action are the facts alleged in the complaint and
those averred as a defense in the defendant's answer (I Moran 126; Calo v.
Roldan, 76 Phil. 445; Alger Electric, Inc. v. CA, 135 SCRA 340).
Secondly, despite the literal wording of Article 2176 of the Civil code, the
existence of contractual relations between the parties does not absolutely
preclude an action by one against the other for quasi-delict arising from
negligence in the performance of a contract.
In Singson v. Court of Appeals (23 SCRA 1117), the Supreme Court ruled:
It has been repeatedly held: that the existence of a
contract between the parties does not bar the
commission of a tort by the one against the other and
the consequent recovery of damages therefor
. . . . Thus in Air France vs. Carrascoso, . . . (it was held
that) although the relation between a passenger and a
carrier is "contractual both in origin and in nature the act
that breaks the contract may also be a tort.
Significantly, in American jurisprudence, from which Our law on Sales was
taken, the authorities are one in saying that he availability of an action or
breach of warranty does not bar an action for torts in a sale of defective
goods. 10
Its motion for the reconsideration of the decision having been denied by the public respondent in
its Resolution of 14 May 1993, 11 the petitioner took his recourse under Rule 45 of the Revised
Rules of Court. It alleges in its petition that:
I.
THE HONORABLE COURT OF APPEALS COMMITTED A GRAVE AND
REVERSIBLE ERROR IN RULING THAT ARTICLE 2176, THE GENERAL
PROVISION ON QUASI-DELICTS, IS APPLICABLE IN THIS CASE WHEN
THE ALLEGATIONS OF THE COMPLAINT CLEARLY SHOW THAT
PRIVATE RESPONDENT'S CAUSE OF ACTION IS BASEDON BREACH
OF A SELLER'S IMPLIED WARRANTIES UNDER OUR LAW ON SALES.
II.
CORROLARILY, THE HONORABLE COURT OF APPEALS COMMITTED
A GRAVE AND REVERSIBLE ERROR IN OVERRULING PETITIONER'S
ARGUMENT THAT PRIVATE RESPONDENT'S CAUSE OF ACTION HAD
PRESCRIBED UNDER ARTICLE 1571 OF THE CIVIL CODE. 12
The petitioner insists that a cursory reading of the complaint will reveal that the primary legal
basis for private respondent's cause of action is not Article 2176 of the Civil Code on quasi-
 CREDIT TRANSACTIONS: ATTY. MIGALLOS WEEK 1 25

delict for the complaint does not ascribe any tortious or wrongful conduct on its part but
Articles 1561 and 1562 thereof on breach of a seller's implied warranties under the law on sales.
It contends the existence of a contractual relation between the parties (arising from the contract
of sale) bars the application of the law on quasi-delicts and that since private respondent's cause
of action arose from the breach of implied warranties, the complaint should have been filed
within six months room delivery of the soft drinks pursuant to Article 171 of the Civil Code.
In her Comment the private respondent argues that in case of breach of the seller's implied
warranties, the vendee may, under Article 1567 of the Civil Code, elect between withdrawing
from the contract or demanding a proportionate reduction of the price, with damages in either
case. She asserts that Civil Case No. D-9629 is neither an action for rescission nor for
proportionate reduction of the price, but for damages arising from a quasi-delict and that the
public respondent was correct in ruling that the existence of a contract did not preclude the
action for quasi-delict. As to the issue of prescription, the private respondent insists that since
her cause of action is based on quasi-delict, the prescriptive period therefore is four (4) years in
accordance with Article 1144 of the Civil Code and thus the filing of the complaint was well within
the said period.
Otherwise put, liability for quasi-delict may still exist despite the presence of
contractual relations. 20
Under American law, the liabilities of a manufacturer or seller of injury-causing
products may be based on negligence, 21 breach of warranty, 22 tort, 23 or other
grounds such as fraud, deceit, or misrepresentation. 24Quasi-delict, as defined in
Article 2176 of the Civil Code, (which is known in Spanish legal treaties as culpa
aquiliana, culpa extra-contractual or cuasi-delitos) 25 is homologous but not identical to
tort under the common law, 26 which includes not only negligence, but also intentional
criminal acts, such as assault and battery, false imprisonment and deceit. 27
It must be made clear that our affirmance of the decision of the public respondent should by no
means be understood as suggesting that the private respondent's claims for moral damages
have sufficient factual and legal basis.
IN VIEW OF ALL THE FOREGOING, the instant petition is hereby DENIED for lack of merit, with
costs against the petitioner.
SO ORDERED.

We find no merit in the petition. The public respondent's conclusion that the cause of action in
Civil Case No. D-9629 is found on quasi-delict and that, therefore, pursuant to Article 1146 of the
Civil Code, it prescribes in four (4) years is supported by the allegations in the complaint, more
particularly paragraph 12 thereof, which makes reference to the reckless and negligent
manufacture of "adulterated food items intended to be sold for public consumption."

The vendee's remedies against a vendor with respect to the warranties against hidden defects of
or encumbrances upon the thing sold are not limited to those prescribed in Article 1567 of the
Civil Code which provides:
Art. 1567. In the case of Articles 1561, 1562, 1564, 1565 and 1566, the
vendee may elect between withdrawing from the contract and demanding a
proportionate reduction of the price, with damages either
case. 13

The vendee may also ask for the annulment of the contract upon proof of error or fraud, in which
case the ordinary rule on obligations shall be applicable. 14 Under the law on obligations,
responsibility arising from fraud is demandable in all obligations and any waiver of an action for
future fraud is void. Responsibility arising from negligence is also demandable in any obligation,
but such liability may be regulated by the courts, according to the circumstances. 15 Those guilty
of fraud, negligence, or delay in the performance of their obligations and those who in any
manner contravene the tenor thereof are liable for damages. 16

The vendor could likewise be liable for quasi-delict under Article 2176 of the Civil Code, and an
action based thereon may be brought by the vendee. While it may be true that the pre-existing
contract between the parties may, as a general rule, bar the applicability of the law on quasi-
delict, the liability may itself be deemed to arise fromquasi-delict, i.e., the acts which breaks the
contract may also be a quasi-delict. Thus, in Singson vs. Bank of the Philippine Islands, 17 this
Court stated:
We have repeatedly held, however, that the existence of a contract between
the parties does not bar the commission of a tort by the one against the
other and the consequent recovery of damages therefor. 18 Indeed, this view
has been, in effect, reiterated in a comparatively recent case. Thus, in Air
France vs. Carrascoso, 19 involving an airplane passenger who, despite hi
first-class ticket, had been illegally ousted from his first-class
accommodation and compelled to take a seat in the tourist compartment,
was held entitled to recover damages from the air-carrier, upon the ground
of tort on the latter's part, for, although the relation between the passenger
and a carrier is "contractual both in origin and nature . . . the act that breaks
the contract may also be a tort.

Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-48006 July 8, 1942
FAUSTO BARREDO, petitioner,
vs.
SEVERINO GARCIA and TIMOTEA ALMARIO, respondents.
Celedonio P. Gloria and Antonio Barredo for petitioner.
Jose G. Advincula for respondents.
BOCOBO, J.:
This case comes up from the Court of Appeals which held the petitioner herein, Fausto Barredo, liable in
damages for the death of Faustino Garcia caused by the negligence of Pedro Fontanilla, a taxi driver
employed by said Fausto Barredo.
At about half past one in the morning of May 3, 1936, on the road between Malabon and Navotas,
Province of Rizal, there was a head-on collision between a taxi of the Malate Taxicab driven by Pedro
Fontanilla and a carretela guided by Pedro Dimapalis. The carretela was overturned, and one of its
passengers, 16-year-old boy Faustino Garcia, suffered injuries from which he died two days later. A
criminal action was filed against Fontanilla in the Court of First Instance of Rizal, and he was convicted
and sentenced to an indeterminate sentence of one year and one day to two years of prision
correccional. The court in the criminal case granted the petition that the right to bring a separate civil
action be reserved. The Court of Appeals affirmed the sentence of the lower court in the criminal case.
Severino Garcia and Timotea Almario, parents of the deceased on March 7, 1939, brought an action in
the Court of First Instance of Manila against Fausto Barredo as the sole proprietor of the Malate Taxicab
and employer of Pedro Fontanilla. On July 8, 1939, the Court of First Instance of Manila awarded
damages in favor of the plaintiffs for P2,000 plus legal interest from the date of the complaint. This
decision was modified by the Court of Appeals by reducing the damages to P1,000 with legal interest
from the time the action was instituted. It is undisputed that Fontanilla 's negligence was the cause of the
mishap, as he was driving on the wrong side of the road, and at high speed. As to Barredo's
responsibility, the Court of Appeals found:
... It is admitted that defendant is Fontanilla's employer. There is proof that he exercised the
diligence of a good father of a family to prevent damage. (See p. 22, appellant's brief.) In fact it
is shown he was careless in employing Fontanilla who had been caught several times for
violation of the Automobile Law and speeding (Exhibit A) violation which appeared in the
records of the Bureau of Public Works available to be public and to himself. Therefore, he
must indemnify plaintiffs under the provisions of article 1903 of the Civil Code.
The main theory of the defense is that the liability of Fausto Barredo is governed by the Revised Penal
Code; hence, his liability is only subsidiary, and as there has been no civil action against Pedro
Fontanilla, the person criminally liable, Barredo cannot be held responsible in the case. The petitioner's
brief states on page 10:
... The Court of Appeals holds that the petitioner is being sued for his failure to exercise all the
diligence of a good father of a family in the selection and supervision of Pedro Fontanilla to
prevent damages suffered by the respondents. In other words, The Court of Appeals insists on
applying in the case article 1903 of the Civil Code. Article 1903 of the Civil Code is found in
Chapter II, Title 16, Book IV of the Civil Code. This fact makes said article to a civil liability
arising from a crime as in the case at bar simply because Chapter II of Title 16 of Book IV of
the Civil Code, in the precise words of article 1903 of the Civil Code itself, is applicable only to
"those (obligations) arising from wrongful or negligent acts or commission not punishable by
law.
The gist of the decision of the Court of Appeals is expressed thus:
... We cannot agree to the defendant's contention. The liability sought to be imposed upon him
in this action is not a civil obligation arising from a felony or a misdemeanor (the crime of
Pedro Fontanilla,), but an obligation imposed in article 1903 of the Civil Code by reason of his
negligence in the selection or supervision of his servant or employee.
The pivotal question in this case is whether the plaintiffs may bring this separate civil action against
Fausto Barredo, thus making him primarily and directly, responsible under article 1903 of the Civil Code
as an employer of Pedro Fontanilla. The defendant maintains that Fontanilla's negligence being
punishable by the Penal Code, his (defendant's) liability as an employer is only subsidiary, according to
said Penal code, but Fontanilla has not been sued in a civil action and his property has not been
CREDIT TRANSACTIONS: ATTY. MIGALLOS WEEK 1 26
exhausted. To decide the main issue, we must cut through the tangle that has, in the minds of many
confused and jumbled together delitos and cuasi delitos, or crimes under the Penal Code and fault or
negligence under articles 1902-1910 of the Civil Code. This should be done, because justice may be lost
in a labyrinth, unless principles and remedies are distinctly envisaged. Fortunately, we are aided in our
inquiry by the luminous presentation of the perplexing subject by renown jurists and we are likewise
guided by the decisions of this Court in previous cases as well as by the solemn clarity of the
consideration in several sentences of the Supreme Tribunal of Spain.
Authorities support the proposition that a quasi-delict or "culpa aquiliana " is a separate legal institution
under the Civil Code with a substantivity all its own, and individuality that is entirely apart and
independent from delict or crime. Upon this principle and on the wording and spirit article 1903 of the Civil
Code, the primary and direct responsibility of employers may be safely anchored.
The pertinent provisions of the Civil Code and Revised Penal Code are as follows:
CIVIL CODE
ART. 1089 Obligations arise from law, from contracts and quasi-contracts, and from acts and
omissions which are unlawful or in which any kind of fault or negligence intervenes.
xxx xxx xxx
ART. 1092. Civil obligations arising from felonies or misdemeanors shall be governed by the
provisions of the Penal Code.
ART. 1093. Those which are derived from acts or omissions in which fault or negligence, not
punishable by law, intervenes shall be subject to the provisions of Chapter II, Title XVI of this
book.
xxx xxx xxx
ART 1902. Any person who by an act or omission causes damage to another by his fault or
negligence shall be liable for the damage so done.
ART. 1903. The obligation imposed by the next preceding article is enforcible, not only for
personal acts and omissions, but also for those of persons for whom another is responsible.
The father and in, case of his death or incapacity, the mother, are liable for any damages
caused by the minor children who live with them.
Guardians are liable for damages done by minors or incapacitated persons subject to their
authority and living with them.
Owners or directors of an establishment or business are equally liable for any damages
caused by their employees while engaged in the branch of the service in which employed, or
on occasion of the performance of their duties.
The State is subject to the same liability when it acts through a special agent, but not if the
damage shall have been caused by the official upon whom properly devolved the duty of doing
the act performed, in which case the provisions of the next preceding article shall be
applicable.
Finally, teachers or directors of arts trades are liable for any damages caused by their pupils or
apprentices while they are under their custody.
The liability imposed by this article shall cease in case the persons mentioned therein prove
that they are exercised all the diligence of a good father of a family to prevent the damage.
ART. 1904. Any person who pays for damage caused by his employees may recover from the
latter what he may have paid.
REVISED PENAL CODE
ART. 100. Civil liability of a person guilty of felony. Every person criminally liable for a
felony is also civilly liable.
ART. 101. Rules regarding civil liability in certain cases. The exemption from criminal
liability established in subdivisions 1, 2, 3, 5, and 6 of article 12 and in subdivision 4 of article
11 of this Code does not include exemption from civil liability, which shall be enforced to the
following rules:
First. In cases of subdivision, 1, 2 and 3 of article 12 the civil liability for acts committed by any
imbecile or insane person, and by a person under nine years of age, or by one over nine but
under fifteen years of age, who has acted without discernment shall devolve upon those
having such person under their legal authority or control, unless it appears that there was no
fault or negligence on their part.
Should there be no person having such insane, imbecile or minor under his authority, legal
guardianship, or control, or if such person be insolvent, said insane, imbecile, or minor shall

respond with their own property, excepting property exempt from execution, in accordance
with the civil law.
Second. In cases falling within subdivision 4 of article 11, the person for whose benefit the
harm has been prevented shall be civilly liable in proportion to the benefit which they may
have received.
The courts shall determine, in their sound discretion, the proportionate amount for which each one shall
be liable.
When the respective shares can not be equitably determined, even approximately, or when the liability
also attaches to the Government, or to the majority of the inhabitants of the town, and, in all events,
whenever the damage has been caused with the consent of the authorities or their agents,
indemnification shall be made in the manner prescribed by special laws or regulations.
Third. In cases falling within subdivisions 5 and 6 of article 12, the persons using violence or causing the
fear shall be primarily liable and secondarily, or, if there be no such persons, those doing the act shall be
liable, saving always to the latter that part of their property exempt from execution.
ART. 102. Subsidiary civil liability of innkeepers, tavern keepers and proprietors of
establishment. In default of persons criminally liable, innkeepers, tavern keepers, and any
other persons or corporation shall be civilly liable for crimes committed in their establishments,
in all cases where a violation of municipal ordinances or some general or special police
regulation shall have been committed by them or their employees.
Innkeepers are also subsidiarily liable for the restitution of goods taken by robbery or theft
within their houses lodging therein, or the person, or for the payment of the value thereof,
provided that such guests shall have notified in advance the innkeeper himself, or the person
representing him, of the deposit of such goods within the inn; and shall furthermore have
followed the directions which such innkeeper or his representative may have given them with
respect to the care of and vigilance over such goods. No liability shall attach in case of robbery
with violence against or intimidation against or intimidation of persons unless committed by the
innkeeper's employees.
ART. 103. Subsidiary civil liability of other persons. The subsidiary liability established in the
next preceding article shall also apply to employers, teachers, persons, and corporations
engaged in any kind of industry for felonies committed by their servants, pupils, workmen,
apprentices, or employees in the discharge of their duties.
xxx xxx xxx
ART. 365. Imprudence and negligence. Any person who, by reckless imprudence, shall
commit any act which, had it been intentional, would constitute a grave felony, shall suffer the
penalty of arresto mayor in its maximum period to prision correccional in its minimum period; if
it would have constituted a less grave felony, the penalty of arresto mayor in its minimum and
medium periods shall be imposed.
Any person who, by simple imprudence or negligence, shall commit an act which would
otherwise constitute a grave felony, shall suffer the penalty of arresto mayor in its medium and
maximum periods; if it would have constituted a less serious felony, the penalty of arresto
mayor in its minimum period shall be imposed."
It will thus be seen that while the terms of articles 1902 of the Civil Code seem to be broad enough to
cover the driver's negligence in the instant case, nevertheless article 1093 limits cuasi-delitos to acts or
omissions "not punishable by law." But inasmuch as article 365 of the Revised Penal Code punishes not
only reckless but even simple imprudence or negligence, the fault or negligence under article 1902 of the
Civil Code has apparently been crowded out. It is this overlapping that makes the "confusion worse
confounded." However, a closer study shows that such a concurrence of scope in regard to negligent
acts does not destroy the distinction between the civil liability arising from a crime and the responsibility
for cuasi-delitos or culpa extra-contractual. The same negligent act causing damages may produce civil
liability arising from a crime under article 100 of the Revised Penal Code, or create an action for cuasi-
delito or culpa extra-contractual under articles 1902-1910 of the Civil Code.
The individuality of cuasi-delito or culpa extra-contractual looms clear and unmistakable. This legal
institution is of ancient lineage, one of its early ancestors being the Lex Aquilia in the Roman Law. In fact,
in Spanish legal terminology, this responsibility is often referred to as culpa aquiliana. The Partidas also
contributed to the genealogy of the present fault or negligence under the Civil Code; for instance, Law 6,
Title 15, of Partida 7, says: "Tenudo es de fazer emienda, porque, como quier que el non fizo a
sabiendas en dao al otro, pero acaescio por su culpa."
CREDIT TRANSACTIONS: ATTY. MIGALLOS WEEK 1 27
The distinctive nature of cuasi-delitos survives in the Civil Code. According to article 1089, one of the five
sources of obligations is this legal institution of cuasi-delito or culpa extra-contractual: "los actos . . . en
que intervenga cualquier genero de culpa o negligencia." Then article 1093 provides that this kind of
obligation shall be governed by Chapter II of Title XVI of Book IV, meaning articles 1902-0910. This
portion of the Civil Code is exclusively devoted to the legal institution of culpa aquiliana.
Some of the differences between crimes under the Penal Code and the culpa aquiliana or cuasi-
delito under the Civil Code are:
1. That crimes affect the public interest, while cuasi-delitos are only of private concern.
2. That, consequently, the Penal Code punishes or corrects the criminal act, while the Civil Code, by
means of indemnification, merely repairs the damage.
3. That delicts are not as broad as quasi-delicts, because the former are punished only if there is a penal
law clearly covering them, while the latter, cuasi-delitos, include all acts in which "any king of fault or
negligence intervenes." However, it should be noted that not all violations of the penal law produce civil
responsibility, such as begging in contravention of ordinances, violation of the game laws, infraction of
the rules of traffic when nobody is hurt. (See Colin and Capitant, "Curso Elemental de Derecho Civil," Vol.
3, p. 728.)
Let us now ascertain what some jurists say on the separate existence of quasi-delicts and the employer's
primary and direct liability under article 1903 of the Civil Code.
Dorado Montero in his essay on "Responsibilidad" in the "Enciclopedia Juridica Espaola" (Vol. XXVII, p.
414) says:
El concepto juridico de la responsabilidad civil abarca diversos aspectos y comprende a
diferentes personas. Asi, existe una responsabilidad civil propiamente dicha, que en ningun
casl lleva aparejada responsabilidad criminal alguna, y otra que es consecuencia indeclinable
de la penal que nace de todo delito o falta."
The juridical concept of civil responsibility has various aspects and comprises different
persons. Thus, there is a civil responsibility, properly speaking, which in no case carries with it
any criminal responsibility, and another which is a necessary consequence of the penal liability
as a result of every felony or misdemeanor."
Maura, an outstanding authority, was consulted on the following case: There had been a collision
between two trains belonging respectively to the Ferrocarril Cantabrico and the Ferrocarril del Norte. An
employee of the latter had been prosecuted in a criminal case, in which the company had been made a
party as subsidiarily responsible in civil damages. The employee had been acquitted in the criminal case,
and the employer, the Ferrocarril del Norte, had also been exonerated. The question asked was whether
the Ferrocarril Cantabrico could still bring a civil action for damages against the Ferrocarril del Norte.
Maura's opinion was in the affirmative, stating in part (Maura, Dictamenes, Vol. 6, pp. 511-513):
Quedando las cosas asi, a proposito de la realidad pura y neta de los hechos, todavia menos
parece sostenible que exista cosa juzgada acerca de la obligacion civil de indemnizar los
quebrantos y menoscabos inferidos por el choque de los trenes. El titulo en que se funda la
accion para demandar el resarcimiento, no puede confundirse con las responsabilidades
civiles nacidas de delito, siquiera exista en este, sea el cual sea, una culpa rodeada de notas
agravatorias que motivan sanciones penales, mas o menos severas. La lesion causada por
delito o falta en los derechos civiles, requiere restituciones, reparaciones o indemnizaciones,
que cual la pena misma ataen al orden publico; por tal motivo vienen encomendadas, de
ordinario, al Ministerio Fiscal; y claro es que si por esta via se enmiendan los quebrantos y
menoscabos, el agraviado excusa procurar el ya conseguido desagravio; pero esta eventual
coincidencia de los efectos, no borra la diversidad originaria de las acciones civiles para pedir
indemnizacion.
Estas, para el caso actual (prescindiendo de culpas contractuales, que no vendrian a cuento y
que tiene otro regimen), dimanan, segun el articulo 1902 del Codigo Civil, de toda accion u
omision, causante de daos o perjuicios, en que intervenga culpa o negligencia. Es trivial que
acciones semejantes son ejercitadas ante los Tribunales de lo civil cotidianamente, sin que la
Justicia punitiva tenga que mezclarse en los asuntos. Los articulos 18 al 21 y 121 al 128 del
Codigo Penal, atentos al espiritu y a los fines sociales y politicos del mismo, desenvuelven y
ordenan la materia de responsabilidades civiles nacidas de delito, en terminos separados del
regimen por ley comun de la culpa que se denomina aquiliana, por alusion a precedentes
legislativos del Corpus Juris. Seria intempestivo un paralelo entre aquellas ordenaciones, y la
de la obligacion de indemnizar a titulo de culpa civil; pero viene al caso y es necesaria una de
las diferenciaciones que en el tal paralelo se notarian.
Los articulos 20 y 21 del Codigo Penal, despues de distribuir a su modo las responsabilidades
civiles, entre los que sean por diversos conceptos culpables del delito o falta, las hacen
extensivas a las empresas y los establecimientos al servicio de los cuales estan los
delincuentes; pero con caracter subsidiario, o sea, segun el texto literal, en defecto de los que
sean responsables criminalmente. No coincide en ello el Codigo Civil, cuyo articulo 1903,

dice; La obligacion que impone el articulo anterior es exigible, no solo por los actos y
omisiones propios, sino por los de aquellas personas de quienes se debe responder;
personas en la enumeracion de las cuales figuran los dependientes y empleados de los
establecimientos o empresas, sea por actos del servicio, sea con ocasion de sus funciones.
Por esto acontece, y se observa en la jurisprudencia, que las empresas, despues de intervenir
en las causas criminales con el caracter subsidiario de su responsabilidad civil por razon del
delito, son demandadas y condenadas directa y aisladamente, cuando se trata de la
obligacion, ante los tribunales civiles.
Siendo como se ve, diverso el titulo de esta obligacion, y formando verdadero postulado de
nuestro regimen judicial la separacion entre justicia punitiva y tribunales de lo civil, de suerte
que tienen unos y otros normas de fondo en distintos cuerpos legales, y diferentes modos de
proceder, habiendose, por aadidura, abstenido de asistir al juicio criminal la Compaia del
Ferrocarril Cantabrico, que se reservo ejercitar sus acciones, parece innegable que la de
indemnizacion por los daos y perjuicios que le irrogo el choque, no estuvo sub judice ante el
Tribunal del Jurado, ni fue sentenciada, sino que permanecio intacta, al pronunciarse el fallo
de 21 de marzo. Aun cuando el veredicto no hubiese sido de inculpabilidad, mostrose mas
arriba, que tal accion quedaba legitimamente reservada para despues del proceso; pero al
declararse que no existio delito, ni responsabilidad dimanada de delito, materia unica sobre
que tenian jurisdiccion aquellos juzgadores, se redobla el motivo para la obligacion civil ex
lege, y se patentiza mas y mas que la accion para pedir su cumplimiento permanece
incolume, extraa a la cosa juzgada.
As things are, apropos of the reality pure and simple of the facts, it seems less tenable that
there should be res judicata with regard to the civil obligation for damages on account of the
losses caused by the collision of the trains. The title upon which the action for reparation is
based cannot be confused with the civil responsibilities born of a crime, because there exists
in the latter, whatever each nature, a culpa surrounded with aggravating aspects which give
rise to penal measures that are more or less severe. The injury caused by a felony or
misdemeanor upon civil rights requires restitutions, reparations, or indemnifications which, like
the penalty itself, affect public order; for this reason, they are ordinarily entrusted to the office
of the prosecuting attorney; and it is clear that if by this means the losses and damages are
repaired, the injured party no longer desires to seek another relief; but this coincidence of
effects does not eliminate the peculiar nature of civil actions to ask for indemnity.
Such civil actions in the present case (without referring to contractual faults which are not
pertinent and belong to another scope) are derived, according to article 1902 of the Civil Code,
from every act or omission causing losses and damages in which culpa or negligence
intervenes. It is unimportant that such actions are every day filed before the civil courts without
the criminal courts interfering therewith. Articles 18 to 21 and 121 to 128 of the Penal Code,
bearing in mind the spirit and the social and political purposes of that Code, develop and
regulate the matter of civil responsibilities arising from a crime, separately from the regime
under common law, of culpa which is known as aquiliana, in accordance with legislative
precedent of the Corpus Juris. It would be unwarranted to make a detailed comparison
between the former provisions and that regarding the obligation to indemnify on account of
civil culpa; but it is pertinent and necessary to point out to one of such differences.
Articles 20 and 21 of the Penal Code, after distriburing in their own way the civil
responsibilities among those who, for different reasons, are guilty of felony or misdemeanor,
make such civil responsibilities applicable to enterprises and establishments for which the
guilty parties render service, but with subsidiary character, that is to say, according to the
wording of the Penal Code, in default of those who are criminally responsible. In this regard,
the Civil Code does not coincide because article 1903 says: "The obligation imposed by the
next preceding article is demandable, not only for personal acts and omissions, but also for
those of persons for whom another is responsible." Among the persons enumerated are the
subordinates and employees of establishments or enterprises, either for acts during their
service or on the occasion of their functions. It is for this reason that it happens, and it is so
observed in judicial decisions, that the companies or enterprises, after taking part in the
criminal cases because of their subsidiary civil responsibility by reason of the crime, are sued
and sentenced directly and separately with regard to the obligation, before the civil courts.
Seeing that the title of this obligation is different, and the separation between punitive justice
and the civil courts being a true postulate of our judicial system, so that they have different
fundamental norms in different codes, as well as different modes of procedure, and inasmuch
as the Compaa del Ferrocarril Cantabrico has abstained from taking part in the criminal case
CREDIT TRANSACTIONS: ATTY. MIGALLOS WEEK 1 28
and has reserved the right to exercise its actions, it seems undeniable that the action for
indemnification for the losses and damages caused to it by the collision was not sub
judice before the Tribunal del Jurado, nor was it the subject of a sentence, but it remained
intact when the decision of March 21 was rendered. Even if the verdict had not been that of
acquittal, it has already been shown that such action had been legitimately reserved till after
the criminal prosecution; but because of the declaration of the non-existence of the felony and
the non-existence of the responsibility arising from the crime, which was the sole subject
matter upon which the Tribunal del Jurado had jurisdiction, there is greater reason for the civil
obligation ex lege, and it becomes clearer that the action for its enforcement remain intact and
is not res judicata.
Laurent, a jurist who has written a monumental work on the French Civil Code, on which the Spanish Civil
Code is largely based and whose provisions on cuasi-delito or culpa extra-contractual are similar to those
of the Spanish Civil Code, says, referring to article 1384 of the French Civil Code which corresponds to
article 1903, Spanish Civil Code:
The action can be brought directly against the person responsible (for another), without
including the author of the act. The action against the principal is accessory in the sense that it
implies the existence of a prejudicial act committed by the employee, but it is not subsidiary in
the sense that it can not be instituted till after the judgment against the author of the act or at
least, that it is subsidiary to the principal action; the action for responsibility (of the employer) is
in itself a principal action. (Laurent, Principles of French Civil Law, Spanish translation, Vol. 20,
pp. 734-735.)
Amandi, in his "Cuestionario del Codigo Civil Reformado" (Vol. 4, pp. 429, 430), declares that the
responsibility of the employer is principal and not subsidiary. He writes:
Cuestion 1. La responsabilidad declarada en el articulo 1903 por las acciones u omisiones de
aquellas personas por las que se debe responder, es subsidiaria? es principal? Para contestar
a esta pregunta es necesario saber, en primer lugar, en que se funda el precepto legal. Es
que realmente se impone una responsabilidad por una falta ajena? Asi parece a primera vista;
pero semejante afirmacion seria contraria a la justicia y a la maxima universal, segun la que
las faltas son personales, y cada uno responde de aquellas que le son imputables. La
responsabilidad de que tratamos se impone con ocasion de un delito o culpa, pero no por
causa de ellos, sino por causa del causi delito, esto es, de la imprudencia o de la negligencia
del padre, del tutor, del dueo o director del establecimiento, del maestro, etc. Cuando
cualquiera de las personas que enumera el articulo citado (menores de edad, incapacitados,
dependientes, aprendices) causan un dao, la ley presume que el padre, el tutor, el maestro,
etc., han cometido una falta de negligencia para prevenir o evitar el dao. Esta falta es la que
la ley castiga. No hay, pues, responsabilidad por un hecho ajeno, sino en la apariencia; en
realidad la responsabilidad se exige por un hecho propio. La idea de que esa responsabilidad
sea subsidiaria es, por lo tanto, completamente inadmisible.
Question No. 1. Is the responsibility declared in article 1903 for the acts or omissions of those
persons for who one is responsible, subsidiary or principal? In order to answer this question it
is necessary to know, in the first place, on what the legal provision is based. Is it true that there
is a responsibility for the fault of another person? It seems so at first sight; but such assertion
would be contrary to justice and to the universal maxim that all faults are personal, and that
everyone is liable for those faults that can be imputed to him. The responsibility in question is
imposed on the occasion of a crime or fault, but not because of the same, but because of
the cuasi-delito, that is to say, the imprudence or negligence of the father, guardian, proprietor
or manager of the establishment, of the teacher, etc. Whenever anyone of the persons
enumerated in the article referred to (minors, incapacitated persons, employees, apprentices)
causes any damage, the law presumes that the father, guardian, teacher, etc. have committed
an act of negligence in not preventing or avoiding the damage. It is this fault that is
condemned by the law. It is, therefore, only apparent that there is a responsibility for the act of
another; in reality the responsibility exacted is for one's own act. The idea that such
responsibility is subsidiary is, therefore, completely inadmissible.
Oyuelos, in his "Digesto: Principios, Doctrina y Jurisprudencia, Referentes al Codigo Civil Espaol," says
in Vol. VII, p. 743:
Es decir, no responde de hechos ajenos, porque se responde solo de su propia culpa,
doctrina del articulo 1902; mas por excepcion, se responde de la ajena respecto de aquellas
personas con las que media algun nexo o vinculo, que motiva o razona la responsabilidad.
Esta responsabilidad, es directa o es subsidiaria? En el orden penal, el Codigo de esta clase
distingue entre menores e incapacitados y los demas, declarando directa la primera (articulo
19) y subsidiaria la segunda (articulos 20 y 21); pero en el orden civil, en el caso del articulo

1903, ha de entenderse directa, por el tenor del articulo que impone la responsabilidad
precisamente "por los actos de aquellas personas de quienes se deba responder."
That is to say, one is not responsible for the acts of others, because one is liable only for his
own faults, this being the doctrine of article 1902; but, by exception, one is liable for the acts of
those persons with whom there is a bond or tie which gives rise to the responsibility. Is this
responsibility direct or subsidiary? In the order of the penal law, the Penal Code distinguishes
between minors and incapacitated persons on the one hand, and other persons on the other,
declaring that the responsibility for the former is direct (article 19), and for the latter, subsidiary
(articles 20 and 21); but in the scheme of the civil law, in the case of article 1903, the
responsibility should be understood as direct, according to the tenor of that articles, for
precisely it imposes responsibility "for the acts of those persons for whom one should be
responsible."
Coming now to the sentences of the Supreme Tribunal of Spain, that court has upheld the principles
above set forth: that a quasi-delict or culpa extra-contractual is a separate and distinct legal institution,
independent from the civil responsibility arising from criminal liability, and that an employer is, under
article 1903 of the Civil Code, primarily and directly responsible for the negligent acts of his employee.
One of the most important of those Spanish decisions is that of October 21, 1910. In that case, Ramon
Lafuente died as the result of having been run over by a street car owned by the "compaia Electric
Madrilea de Traccion." The conductor was prosecuted in a criminal case but he was acquitted.
Thereupon, the widow filed a civil action against the street car company, paying for damages in the
amount of 15,000 pesetas. The lower court awarded damages; so the company appealed to the Supreme
Tribunal, alleging violation of articles 1902 and 1903 of the Civil Code because by final judgment the non-
existence of fault or negligence had been declared. The Supreme Court of Spain dismissed the appeal,
saying:
Considerando que el primer motivo del recurso se funda en el equivocado supuesto de que el
Tribunal a quo, al condonar a la compaia Electrica Madrilea al pago del dao causado con
la muerte de Ramon La fuente Izquierdo, desconoce el valor y efectos juridicos de la
sentencia absolutoria deictada en la causa criminal que se siguio por el mismo hecho, cuando
es lo cierto que de este han conocido las dos jurisdicciones bajo diferentes as pectos, y como
la de lo criminal declrao dentro de los limites de su competencia que el hecho de que se trata
no era constitutivo de delito por no haber mediado descuido o negligencia graves, lo que no
excluye, siendo este el unico fundamento del fallo absolutorio, el concurso de la culpa o
negligencia no califacadas, fuente de obligaciones civiles segun el articulo 1902 del Codigo, y
que alcanzan, segun el 1903, netre otras perosnas, a los Directores de establecimientos o
empresas por los daos causados por sus dependientes en determinadas condiciones, es
manifesto que la de lo civil, al conocer del mismo hehco baho este ultimo aspecto y al
condenar a la compaia recurrente a la indemnizacion del dao causado por uno de sus
empleados, lejos de infringer los mencionados textos, en relacion con el articulo 116 de la Ley
de Enjuciamiento Criminal, se ha atenido estrictamente a ellos, sin invadir atribuciones ajenas
a su jurisdiccion propia, ni contrariar en lo mas minimo el fallo recaido en la causa.
Considering that the first ground of the appeal is based on the mistaken supposition that the
trial court, in sentencing the Compaia Madrilea to the payment of the damage caused by the
death of Ramon Lafuente Izquierdo, disregards the value and juridical effects of the sentence
of acquittal rendered in the criminal case instituted on account of the same act, when it is a
fact that the two jurisdictions had taken cognizance of the same act in its different aspects, and
as the criminal jurisdiction declared within the limits of its authority that the act in question did
not constitute a felony because there was no grave carelessness or negligence, and this being
the only basis of acquittal, it does no exclude the co-existence of fault or negligence which is
not qualified, and is a source of civil obligations according to article 1902 of the Civil Code,
affecting, in accordance with article 1903, among other persons, the managers of
establishments or enterprises by reason of the damages caused by employees under certain
conditions, it is manifest that the civil jurisdiccion in taking cognizance of the same act in this
latter aspect and in ordering the company, appellant herein, to pay an indemnity for the
damage caused by one of its employees, far from violating said legal provisions, in relation
with article 116 of the Law of Criminal Procedure, strictly followed the same, without invading
attributes which are beyond its own jurisdiction, and without in any way contradicting the
decision in that cause. (Emphasis supplied.)
It will be noted, as to the case just cited:
First. That the conductor was not sued in a civil case, either separately or with the street car company.
This is precisely what happens in the present case: the driver, Fontanilla, has not been sued in a civil
action, either alone or with his employer.
CREDIT TRANSACTIONS: ATTY. MIGALLOS WEEK 1 29
Second. That the conductor had been acquitted of grave criminal negligence, but the Supreme Tribunal
of Spain said that this did not exclude the co-existence of fault or negligence, which is not qualified, on
the part of the conductor, under article 1902 of the Civil Code. In the present case, the taxi driver was
found guilty of criminal negligence, so that if he had even sued for his civil responsibility arising from the
crime, he would have been held primarily liable for civil damages, and Barredo would have been held
subsidiarily liable for the same. But the plaintiffs are directly suing Barredo, on his primary responsibility
because of his own presumed negligence which he did not overcome under article 1903. Thus,
there were two liabilities of Barredo: first, the subsidiary one because of the civil liability of the taxi driver
arising from the latter's criminal negligence; and, second, Barredo's primary liability as an employer under
article 1903. The plaintiffs were free to choose which course to take, and they preferred the second
remedy. In so doing, they were acting within their rights. It might be observed in passing, that the plaintiff
choose the more expeditious and effective method of relief, because Fontanilla was either in prison, or
had just been released, and besides, he was probably without property which might be seized in
enforcing any judgment against him for damages.
Third. That inasmuch as in the above sentence of October 21, 1910, the employer was held liable civilly,
notwithstanding the acquittal of the employee (the conductor) in a previous criminal case, with greater
reason should Barredo, the employer in the case at bar, be held liable for damages in a civil suit filed
against him because his taxi driver had been convicted. The degree of negligence of the conductor in the
Spanish case cited was less than that of the taxi driver, Fontanilla, because the former was acquitted in
the previous criminal case while the latter was found guilty of criminal negligence and was sentenced to
an indeterminate sentence of one year and one day to two years of prision correccional.
(See also Sentence of February 19, 1902, which is similar to the one above quoted.)
In the Sentence of the Supreme Court of Spain, dated February 14, 1919, an action was brought against
a railroad company for damages because the station agent, employed by the company, had unjustly
and fraudulently, refused to deliver certain articles consigned to the plaintiff. The Supreme Court of Spain
held that this action was properly under article 1902 of the Civil Code, the court saying:
Considerando que la sentencia discutida reconoce, en virtud de los hechos que consigna con
relacion a las pruebas del pleito: 1., que las expediciones facturadas por la compaia
ferroviaria a la consignacion del actor de las vasijas vacias que en su demanda relacionan
tenian como fin el que este las devolviera a sus remitentes con vinos y alcoholes; 2., que
llegadas a su destino tales mercanias no se quisieron entregar a dicho consignatario por el
jefe de la estacion sin motivo justificado y con intencion dolosa, y 3., que la falta de entrega
de estas expediciones al tiempo de reclamarlas el demandante le originaron daos y
perjuicios en cantidad de bastante importancia como expendedor al por mayor que era de
vinos y alcoholes por las ganancias que dejo de obtener al verse privado de servir los pedidos
que se le habian hecho por los remitentes en los envases:
Considerando que sobre esta base hay necesidad de estimar los cuatro motivos que integran
este recurso, porque la demanda inicial del pleito a que se contrae no contiene accion que
nazca del incumplimiento del contrato de transporte, toda vez que no se funda en el retraso
de la llegada de las mercancias ni de ningun otro vinculo contractual entre las partes
contendientes, careciendo, por tanto, de aplicacion el articulo 371 del Codigo de Comercio, en
que principalmente descansa el fallo recurrido, sino que se limita a pedir la reparaction de los
daos y perjuicios producidos en el patrimonio del actor por la injustificada y dolosa negativa
del porteador a la entrega de las mercancias a su nombre consignadas, segun lo reconoce la
sentencia, y cuya responsabilidad esta claramente sancionada en el articulo 1902 del Codigo
Civil, que obliga por el siguiente a la Compaia demandada como ligada con el causante de
aquellos por relaciones de caracter economico y de jurarquia administrativa.
Considering that the sentence, in question recognizes, in virtue of the facts which it declares,
in relation to the evidence in the case: (1) that the invoice issued by the railroad company in
favor of the plaintiff contemplated that the empty receptacles referred to in the complaint
should be returned to the consignors with wines and liquors; (2) that when the said
merchandise reached their destination, their delivery to the consignee was refused by the
station agent without justification and with fraudulent intent, and (3) that the lack of delivery of
these goods when they were demanded by the plaintiff caused him losses and damages of
considerable importance, as he was a wholesale vendor of wines and liquors and he failed to
realize the profits when he was unable to fill the orders sent to him by the consignors of the
receptacles:
Considering that upon this basis there is need of upholding the four assignments of error, as
the original complaint did not contain any cause of action arising from non-fulfillment of a
contract of transportation, because the action was not based on the delay of the goods nor on
any contractual relation between the parties litigant and, therefore, article 371 of the Code of
Commerce, on which the decision appealed from is based, is not applicable; but it limits to
asking for reparation for losses and damages produced on the patrimony of the plaintiff on

account of the unjustified and fraudulent refusal of the carrier to deliver the goods consigned to
the plaintiff as stated by the sentence, and the carrier's responsibility is clearly laid down in
article 1902 of the Civil Code which binds, in virtue of the next article, the defendant company,
because the latter is connected with the person who caused the damage by relations of
economic character and by administrative hierarchy. (Emphasis supplied.)
The above case is pertinent because it shows that the same act may come under both the Penal Code
and the Civil Code. In that case, the action of the agent was unjustified and fraudulent and therefore
could have been the subject of a criminal action. And yet, it was held to be also a proper subject of a civil
action under article 1902 of the Civil Code. It is also to be noted that it was the employer and not the
employee who was being sued.
Let us now examine the cases previously decided by this Court.
In the leading case of Rakes vs. Atlantic Gulf and Pacific Co. (7 Phil., 359, 362-365 [year 1907]), the trial
court awarded damages to the plaintiff, a laborer of the defendant, because the latter had negligently
failed to repair a tramway in consequence of which the rails slid off while iron was being transported, and
caught the plaintiff whose leg was broken. This Court held:
It is contended by the defendant, as its first defense to the action that the necessary
conclusion from these collated laws is that the remedy for injuries through negligence lies only
in a criminal action in which the official criminally responsible must be made primarily liable
and his employer held only subsidiarily to him. According to this theory the plaintiff should
have procured the arrest of the representative of the company accountable for not repairing
the track, and on his prosecution a suitable fine should have been imposed, payable primarily
by him and secondarily by his employer.
This reasoning misconceived the plan of the Spanish codes upon this subject. Article 1093 of
the Civil Code makes obligations arising from faults or negligence not punished by the law,
subject to the provisions of Chapter II of Title XVI. Section 1902 of that chapter reads:
"A person who by an act or omission causes damage to another when there is fault
or negligence shall be obliged to repair the damage so done.
"SEC. 1903. The obligation imposed by the preceeding article is demandable, not
only for personal acts and omissions, but also for those of the persons for whom
they should be responsible.
"The father, and on his death or incapacity, the mother, is liable for the damages
caused by the minors who live with them.
xxx xxx xxx
"Owners or directors of an establishment or enterprise are equally liable for the
damages caused by their employees in the service of the branches in which the
latter may be employed or in the performance of their duties.
xxx xxx xxx
"The liability referred to in this article shall cease when the persons mentioned
therein prove that they employed all the diligence of a good father of a family to
avoid the damage."
As an answer to the argument urged in this particular action it may be sufficient to point out
that nowhere in our general statutes is the employer penalized for failure to provide or
maintain safe appliances for his workmen. His obligation therefore is one 'not punished by the
laws' and falls under civil rather than criminal jurisprudence. But the answer may be a broader
one. We should be reluctant, under any conditions, to adopt a forced construction of these
scientific codes, such as is proposed by the defendant, that would rob some of these articles
of effect, would shut out litigants against their will from the civil courts, would make the
assertion of their rights dependent upon the selection for prosecution of the proper criminal
offender, and render recovery doubtful by reason of the strict rules of proof prevailing in
criminal actions. Even if these articles had always stood alone, such a construction would be
unnecessary, but clear light is thrown upon their meaning by the provisions of the Law of
Criminal Procedure of Spain (Ley de Enjuiciamiento Criminal), which, though never in actual
force in these Islands, was formerly given a suppletory or explanatory effect. Under article 111
of this law, both classes of action, civil and criminal, might be prosecuted jointly or separately,
but while the penal action was pending the civil was suspended. According to article 112, the
penal action once started, the civil remedy should be sought therewith, unless it had been
waived by the party injured or been expressly reserved by him for civil proceedings for the
future. If the civil action alone was prosecuted, arising out of a crime that could be enforced
only on private complaint, the penal action thereunder should be extinguished. These
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provisions are in harmony with those of articles 23 and 133 of our Penal Code on the same
subject.
An examination of this topic might be carried much further, but the citation of these articles
suffices to show that the civil liability was not intended to be merged in the criminal nor even to
be suspended thereby, except as expressly provided in the law. Where an individual is civilly
liable for a negligent act or omission, it is not required that the injured party should seek out a
third person criminally liable whose prosecution must be a condition precedent to the
enforcement of the civil right.
Under article 20 of the Penal Code the responsibility of an employer may be regarded as
subsidiary in respect of criminal actions against his employees only while they are in process
of prosecution, or in so far as they determine the existence of the criminal act from which
liability arises, and his obligation under the civil law and its enforcement in the civil courts is
not barred thereby unless by the election of the injured person. Inasmuch as no criminal
proceeding had been instituted, growing our of the accident in question, the provisions of the
Penal Code can not affect this action. This construction renders it unnecessary to finally
determine here whether this subsidiary civil liability in penal actions has survived the laws that
fully regulated it or has been abrogated by the American civil and criminal procedure now in
force in the Philippines.
The difficulty in construing the articles of the code above cited in this case appears from the
briefs before us to have arisen from the interpretation of the words of article 1093, "fault or
negligence not punished by law," as applied to the comprehensive definition of offenses in
articles 568 and 590 of the Penal Code. It has been shown that the liability of an employer
arising out of his relation to his employee who is the offender is not to be regarded as derived
from negligence punished by the law, within the meaning of articles 1902 and 1093. More than
this, however, it cannot be said to fall within the class of acts unpunished by the law, the
consequence of which are regulated by articles 1902 and 1903 of the Civil Code. The acts to
which these articles are applicable are understood to be those not growing out of pre-existing
duties of the parties to one another. But where relations already formed give rise to duties,
whether springing from contract or quasi contract, then breaches of those duties are subject to
articles 1101, 1103, and 1104 of the same code. A typical application of this distinction may be
found in the consequences of a railway accident due to defective machinery supplied by the
employer. His liability to his employee would arise out of the contract of employment, that to
the passengers out of the contract for passage, while that to the injured bystander would
originate in the negligent act itself.
In Manzanares vs. Moreta, 38 Phil., 821 (year 1918), the mother of the 8 of 9-year-old child Salvador
Bona brought a civil action against Moreta to recover damages resulting from the death of the child, who
had been run over by an automobile driven and managed by the defendant. The trial court rendered
judgment requiring the defendant to pay the plaintiff the sum of P1,000 as indemnity: This Court in
affirming the judgment, said in part:
If it were true that the defendant, in coming from the southern part of Solana Street, had to
stop his auto before crossing Real Street, because he had met vehicles which were going
along the latter street or were coming from the opposite direction along Solana Street, it is to
be believed that, when he again started to run his auto across said Real Street and to continue
its way along Solana Street northward, he should have adjusted the speed of the auto which
he was operating until he had fully crossed Real Street and had completely reached a clear
way on Solana Street. But, as the child was run over by the auto precisely at the entrance of
Solana Street, this accident could not have occurred if the auto had been running at a slow
speed, aside from the fact that the defendant, at the moment of crossing Real Street and
entering Solana Street, in a northward direction, could have seen the child in the act of
crossing the latter street from the sidewalk on the right to that on the left, and if the accident
had occurred in such a way that after the automobile had run over the body of the child, and
the child's body had already been stretched out on the ground, the automobile still moved
along a distance of about 2 meters, this circumstance shows the fact that the automobile
entered Solana Street from Real Street, at a high speed without the defendant having blown
the horn. If these precautions had been taken by the defendant, the deplorable accident which
caused the death of the child would not have occurred.
It will be noticed that the defendant in the above case could have been prosecuted in a criminal case
because his negligence causing the death of the child was punishable by the Penal Code. Here is
therefore a clear instance of the same act of negligence being a proper subject-matter either of a criminal

action with its consequent civil liability arising from a crime or of an entirely separate and independent
civil action for fault or negligence under article 1902 of the Civil Code. Thus, in this jurisdiction, the
separate individually of a cuasi-delito or culpa aquiliana under the Civil Code has been fully and clearly
recognized, even with regard to a negligent act for which the wrongdoer could have been prosecuted and
convicted in a criminal case and for which, after such a conviction, he could have been sued for this civil
liability arising from his crime.
Years later (in 1930) this Court had another occasion to apply the same doctrine. In Bernal and Enverso
vs. House and Tacloban Electric & Ice Plant, Ltd., 54 Phil., 327, the parents of the five-year-old child,
Purificacion Bernal, brought a civil action to recover damages for the child's death as a result of burns
caused by the fault and negligence of the defendants. On the evening of April 10, 1925, the Good Friday
procession was held in Tacloban, Leyte. Fortunata Enverso with her daughter Purificacion Bernal had
come from another municipality to attend the same. After the procession the mother and the daughter
with two others were passing along Gran Capitan Street in front of the offices of the Tacloban Electric &
Ice Plant, Ltd., owned by defendants J. V. House, when an automobile appeared from the opposite
direction. The little girl, who was slightly ahead of the rest, was so frightened by the automobile that she
turned to run, but unfortunately she fell into the street gutter where hot water from the electric plant was
flowing. The child died that same night from the burns. The trial courts dismissed the action because of
the contributory negligence of the plaintiffs. But this Court held, on appeal, that there was no contributory
negligence, and allowed the parents P1,000 in damages from J. V. House who at the time of the tragic
occurrence was the holder of the franchise for the electric plant. This Court said in part:
Although the trial judge made the findings of fact hereinbefore outlined, he nevertheless was
led to order the dismissal of the action because of the contributory negligence of the plaintiffs.
It is from this point that a majority of the court depart from the stand taken by the trial judge.
The mother and her child had a perfect right to be on the principal street of Tacloban, Leyte,
on the evening when the religious procession was held. There was nothing abnormal in
allowing the child to run along a few paces in advance of the mother. No one could foresee the
coincidence of an automobile appearing and of a frightened child running and falling into a
ditch filled with hot water. The doctrine announced in the much debated case of Rakes vs.
Atlantic Gulf and Pacific Co. ([1907]), 7 Phil., 359), still rule. Article 1902 of the Civil Code must
again be enforced. The contributory negligence of the child and her mother, if any, does not
operate as a bar to recovery, but in its strictest sense could only result in reduction of the
damages.
It is most significant that in the case just cited, this Court specifically applied article 1902 of the Civil
Code. It is thus that although J. V. House could have been criminally prosecuted for reckless or simple
negligence and not only punished but also made civilly liable because of his criminal negligence,
nevertheless this Court awarded damages in an independent civil action for fault or negligence under
article 1902 of the Civil Code.
In Bahia vs. Litonjua and Leynes (30 Phil., 624 [year 1915), the action was for damages for the death of
the plaintiff's daughter alleged to have been caused by the negligence of the servant in driving an
automobile over the child. It appeared that the cause of the mishap was a defect in the steering gear. The
defendant Leynes had rented the automobile from the International Garage of Manila, to be used by him
in carrying passengers during the fiesta of Tuy, Batangas. Leynes was ordered by the lower court to pay
P1,000 as damages to the plaintiff. On appeal this Court reversed the judgment as to Leynes on the
ground that he had shown that the exercised the care of a good father of a family, thus overcoming the
presumption of negligence under article 1903. This Court said:
As to selection, the defendant has clearly shown that he exercised the care and diligence of a
good father of a family. He obtained the machine from a reputable garage and it was, so far as
appeared, in good condition. The workmen were likewise selected from a standard garage,
were duly licensed by the Government in their particular calling, and apparently thoroughly
competent. The machine had been used but a few hours when the accident occurred and it is
clear from the evidence that the defendant had no notice, either actual or constructive, of the
defective condition of the steering gear.
The legal aspect of the case was discussed by this Court thus:
Article 1903 of the Civil Code not only establishes liability in cases of negligence, but also
provides when the liability shall cease. It says:
"The liability referred to in this article shall cease when the persons mentioned
therein prove that they employed all the diligence of a good father of a family to
avoid the damage."
From this article two things are apparent: (1) That when an injury is caused by the negligence
of a servant or employee there instantly arises a presumption of law that there was negligence
CREDIT TRANSACTIONS: ATTY. MIGALLOS WEEK 1 31
on the part of the matter or employer either in the selection of the servant or employee, or in
supervision over him after the selection, or both; and (2) that presumption is juris tantum and
not juris et de jure, and consequently, may be rebutted. It follows necessarily that if the
employer shows to the satisfaction of the court that in selection and supervision he has
exercised the care and diligence of a good father of a family, the presumption is overcome and
he is relieve from liability.
This theory bases the responsibility of the master ultimately on his own negligence and not on
that of his servant.
The doctrine of the case just cited was followed by this Court in Cerf vs. Medel (33 Phil., 37 [year 1915]).
In the latter case, the complaint alleged that the defendant's servant had so negligently driven an
automobile, which was operated by defendant as a public vehicle, that said automobile struck and
damaged the plaintiff's motorcycle. This Court, applying article 1903 and following the rule in Bahia vs.
Litonjua and Leynes, said in part (p. 41) that:
The master is liable for the negligent acts of his servant where he is the owner or director of a
business or enterprise and the negligent acts are committed while the servant is engaged in
his master's employment as such owner.
Another case which followed the decision in Bahia vs. Litonjua and Leynes was Cuison vs. Norton &
Harrison Co., 55 Phil., 18 (year 1930). The latter case was an action for damages brought by Cuison for
the death of his seven-year-old son Moises. The little boy was on his way to school with his sister
Marciana. Some large pieces of lumber fell from a truck and pinned the boy underneath, instantly killing
him. Two youths, Telesforo Binoya and Francisco Bautista, who were working for Ora, an employee of
defendant Norton & Harrison Co., pleaded guilty to the crime of homicide through reckless negligence
and were sentenced accordingly. This Court, applying articles 1902 and 1903, held:
The basis of civil law liability is not respondent superior but the relationship of pater familias.
This theory bases the liability of the master ultimately on his own negligence and not on that of
his servant. (Bahia vs.Litonjua and Leynes [1915], 30 Phil., 624; Cangco vs. Manila Railroad
Co. [1918], 38 Phil., 768.)
In Walter A. Smith & Co. vs. Cadwallader Gibson Lumber Co., 55 Phil., 517 (year 1930) the plaintiff
brought an action for damages for the demolition of its wharf, which had been struck by the steamer
Helen C belonging to the defendant. This Court held (p. 526):
The evidence shows that Captain Lasa at the time the plaintiff's wharf collapsed was a duly
licensed captain, authorized to navigate and direct a vessel of any tonnage, and that the
appellee contracted his services because of his reputation as a captain, according to F. C.
Cadwallader. This being so, we are of the opinion that the presumption of liability against the
defendant has been overcome by the exercise of the care and diligence of a good father of a
family in selecting Captain Lasa, in accordance with the doctrines laid down by this court in the
cases cited above, and the defendant is therefore absolved from all liability.
It is, therefore, seen that the defendant's theory about his secondary liability is negatived by the six cases
above set forth. He is, on the authority of these cases, primarily and directly responsible in damages
under article 1903, in relation to article 1902, of the Civil Code.
Let us now take up the Philippine decisions relied upon by the defendant. We study first, City of Manila
vs. Manila Electric Co., 52 Phil., 586 (year 1928). A collision between a truck of the City of Manila and a
street car of the Manila Electric Co. took place on June 8, 1925. The truck was damaged in the amount of
P1,788.27. Sixto Eustaquio, the motorman, was prosecuted for the crime of damage to property and
slight injuries through reckless imprudence. He was found guilty and sentenced to pay a fine of P900, to
indemnify the City of Manila for P1,788.27, with subsidiary imprisonment in case of insolvency. Unable to
collect the indemnity from Eustaquio, the City of Manila filed an action against the Manila Electric
Company to obtain payment, claiming that the defendant was subsidiarily liable. The main defense was
that the defendant had exercised the diligence of a good father of a family to prevent the damage. The
lower court rendered judgment in favor of the plaintiff. This Court held, in part, that this case was
governed by the Penal Code, saying:
With this preliminary point out of the way, there is no escaping the conclusion that the
provisions of the Penal Code govern. The Penal Code in easily understandable language
authorizes the determination of subsidiary liability. The Civil Code negatives its application by
providing that civil obligations arising from crimes or misdemeanors shall be governed by the
provisions of the Penal Code. The conviction of the motorman was a misdemeanor falling
under article 604 of the Penal Code. The act of the motorman was not a wrongful or negligent
act or omission not punishable by law. Accordingly, the civil obligation connected up with the
Penal Code and not with article 1903 of the Civil Code. In other words, the Penal Code affirms

its jurisdiction while the Civil Code negatives its jurisdiction. This is a case of criminal
negligence out of which civil liability arises and not a case of civil negligence.
xxx xxx xxx
Our deduction, therefore, is that the case relates to the Penal Code and not to the Civil Code.
Indeed, as pointed out by the trial judge, any different ruling would permit the master to escape
scot-free by simply alleging and proving that the master had exercised all diligence in the
selection and training of its servants to prevent the damage. That would be a good defense to
a strictly civil action, but might or might not be to a civil action either as a part of or predicated
on conviction for a crime or misdemeanor. (By way of parenthesis, it may be said further that
the statements here made are offered to meet the argument advanced during our deliberations
to the effect that article 0902 of the Civil Code should be disregarded and codal articles 1093
and 1903 applied.)
It is not clear how the above case could support the defendant's proposition, because the Court of
Appeals based its decision in the present case on the defendant's primary responsibility under article
1903 of the Civil Code and not on his subsidiary liability arising from Fontanilla's criminal negligence. In
other words, the case of City of Manila vs. Manila Electric Co., supra, is predicated on an entirely different
theory, which is the subsidiary liability of an employer arising from a criminal act of his employee,
whereas the foundation of the decision of the Court of Appeals in the present case is the employer's
primary liability under article 1903 of the Civil Code. We have already seen that this is a proper and
independent remedy.
Arambulo vs. Manila Electric Co. (55 Phil., 75), is another case invoked by the defendant. A motorman in
the employ of the Manila Electric Company had been convicted o homicide by simple negligence and
sentenced, among other things, to pay the heirs of the deceased the sum of P1,000. An action was then
brought to enforce the subsidiary liability of the defendant as employer under the Penal Code. The
defendant attempted to show that it had exercised the diligence of a good father of a family in selecting
the motorman, and therefore claimed exemption from civil liability. But this Court held:
In view of the foregoing considerations, we are of opinion and so hold, (1) that the exemption
from civil liability established in article 1903 of the Civil Code for all who have acted with the
diligence of a good father of a family, is not applicable to the subsidiary civil liability provided in
article 20 of the Penal Code.
The above case is also extraneous to the theory of the defendant in the instant case, because the action
there had for its purpose the enforcement of the defendant's subsidiary liability under the Penal Code,
while in the case at bar, the plaintiff's cause of action is based on the defendant's primary and direct
responsibility under article 1903 of the Civil Code. In fact, the above case destroys the defendant's
contention because that decision illustrates the principle that the employer's primary responsibility under
article 1903 of the Civil Code is different in character from his subsidiary liability under the Penal Code.
In trying to apply the two cases just referred to, counsel for the defendant has failed to recognize the
distinction between civil liability arising from a crime, which is governed by the Penal Code, and the
responsibility for cuasi-delito or culpa aquiliana under the Civil Code, and has likewise failed to give the
importance to the latter type of civil action.
The defendant-petitioner also cites Francisco vs. Onrubia (46 Phil., 327). That case need not be set forth.
Suffice it to say that the question involved was also civil liability arising from a crime. Hence, it is as
inapplicable as the two cases above discussed.
The foregoing authorities clearly demonstrate the separate individuality of cuasi-delitos or culpa
aquiliana under the Civil Code. Specifically they show that there is a distinction between civil liability
arising from criminal negligence (governed by the Penal Code) and responsibility for fault or negligence
under articles 1902 to 1910 of the Civil Code, and that the same negligent act may produce either a civil
liability arising from a crime under the Penal Code, or a separate responsibility for fault or negligence
under articles 1902 to 1910 of the Civil Code. Still more concretely, the authorities above cited render it
inescapable to conclude that the employer in this case the defendant-petitioner is primarily and
directly liable under article 1903 of the Civil Code.
The legal provisions, authors, and cases already invoked should ordinarily be sufficient to dispose of this
case. But inasmuch as we are announcing doctrines that have been little understood in the past, it might
not be inappropriate to indicate their foundations.
Firstly, the Revised Penal Code in article 365 punishes not only reckless but also simple negligence. If
we were to hold that articles 1902 to 1910 of the Civil Code refer only to fault or negligence not punished
by law, according to the literal import of article 1093 of the Civil Code, the legal institution of culpa
aquiliana would have very little scope and application in actual life. Death or injury to persons and
damage to property through any degree of negligence even the slightest would have to be
CREDIT TRANSACTIONS: ATTY. MIGALLOS WEEK 1 32
indemnified only through the principle of civil liability arising from a crime. In such a state of affairs, what
sphere would remain for cuasi-delito or culpa aquiliana? We are loath to impute to the lawmaker any
intention to bring about a situation so absurd and anomalous. Nor are we, in the interpretation of the
laws, disposed to uphold the letter that killeth rather than the spirit that giveth life. We will not use the
literal meaning of the law to smother and render almost lifeless a principle of such ancient origin and such
full-grown development as culpa aquiliana or cuasi-delito, which is conserved and made enduring in
articles 1902 to 1910 of the Spanish Civil Code.
Secondly, to find the accused guilty in a criminal case, proof of guilt beyond reasonable doubt is required,
while in a civil case, preponderance of evidence is sufficient to make the defendant pay in damages.
There are numerous cases of criminal negligence which can not be shown beyond reasonable doubt, but
can be proved by a preponderance of evidence. In such cases, the defendant can and should be made
responsible in a civil action under articles 1902 to 1910 of the Civil Code. Otherwise, there would be
many instances of unvindicated civil wrongs. Ubi jus ibi remedium.
Thirdly, to hold that there is only one way to make defendant's liability effective, and that is, to sue the
driver and exhaust his (the latter's) property first, would be tantamount to compelling the plaintiff to follow
a devious and cumbersome method of obtaining relief. True, there is such a remedy under our laws, but
there is also a more expeditious way, which is based on the primary and direct responsibility of the
defendant under article 1903 of the Civil Code. Our view of the law is more likely to facilitate remedy for
civil wrongs, because the procedure indicated by the defendant is wasteful and productive of delay, it
being a matter of common knowledge that professional drivers of taxis and similar public conveyance
usually do not have sufficient means with which to pay damages. Why, then, should the plaintiff be
required in all cases to go through this roundabout, unnecessary, and probably useless procedure? In
construing the laws, courts have endeavored to shorten and facilitate the pathways of right and justice.
At this juncture, it should be said that the primary and direct responsibility of employers and their
presumed negligence are principles calculated to protect society. Workmen and employees should be
carefully chosen and supervised in order to avoid injury to the public. It is the masters or employers who
principally reap the profits resulting from the services of these servants and employees. It is but right that
they should guarantee the latter's careful conduct for the personnel and patrimonial safety of others. As
Theilhard has said, "they should reproach themselves, at least, some for their weakness, others for their
poor selection and all for their negligence." And according to Manresa, "It is much more equitable and
just that such responsibility should fall upon the principal or director who could have chosen a careful and
prudent employee, and not upon the injured person who could not exercise such selection and who used
such employee because of his confidence in the principal or director." (Vol. 12, p. 622, 2nd Ed.) Many
jurists also base this primary responsibility of the employer on the principle of representation of the
principal by the agent. Thus, Oyuelos says in the work already cited (Vol. 7, p. 747) that before third
persons the employer and employee "vienen a ser como una sola personalidad, por refundicion de la del
dependiente en la de quien le emplea y utiliza." ("become as one personality by the merging of the
person of the employee in that of him who employs and utilizes him.") All these observations acquire a
peculiar force and significance when it comes to motor accidents, and there is need of stressing and
accentuating the responsibility of owners of motor vehicles.
Fourthly, because of the broad sweep of the provisions of both the Penal Code and the Civil Code on this
subject, which has given rise to the overlapping or concurrence of spheres already discussed, and for
lack of understanding of the character and efficacy of the action for culpa aquiliana, there has grown up a
common practice to seek damages only by virtue of the civil responsibility arising from a crime, forgetting
that there is another remedy, which is by invoking articles 1902-1910 of the Civil Code. Although this
habitual method is allowed by our laws, it has nevertheless rendered practically useless and nugatory the
more expeditious and effective remedy based on culpa aquiliana or culpa extra-contractual. In the
present case, we are asked to help perpetuate this usual course. But we believe it is high time we pointed
out to the harm done by such practice and to restore the principle of responsibility for fault or negligence
under articles 1902 et seq. of the Civil Code to its full rigor. It is high time we caused the stream of quasi-
delict or culpa aquiliana to flow on its own natural channel, so that its waters may no longer be diverted
into that of a crime under the Penal Code. This will, it is believed, make for the better safeguarding of
private rights because it re-establishes an ancient and additional remedy, and for the further reason that
an independent civil action, not depending on the issues, limitations and results of a criminal prosecution,
and entirely directed by the party wronged or his counsel, is more likely to secure adequate and
efficacious redress.
In view of the foregoing, the judgment of the Court of Appeals should be and is hereby affirmed, with
costs against the defendant-petitioner.
Yulo, C.J., Moran, Ozaeta and Paras, JJ., concur.