1. Jose E. Genson vs. Sps.

Eduardo Adarle
G.R. No. 73928 August 31, 1987
Facts: Arturo Arbatin was the successful bidder in the sale at public auction of junk and
other unserviceable government property located at the compound of the Highway
District Engineer's Office of Roxas City. Private respondent Eduardo Adarle was hired as
a laborer by Arbatin to gather and take away scrap iron from the said compound with
a daily wage of P12.00 or about 312.00 a month. On September 8, 1979, at 4:00 o'clock
in the morning, on a Saturday and a non-working day, while the private respondent
was tying a cable to a pile of scrap iron to be loaded on a truck inside the premises of
the compound, and while the bucket of the payloader driven by Ramon Buensalido
was being raised, the bucket suddenly fell and hit Adarle on the right back portion of
his head just below the nape of his neck. Adarle was rushed to the St. Anthony Hospital,
Roxas City.

While still in the hospital, the private respondent instituted the action below for
damages against Arbatin, his employer; Buensalido, the payloader operator;
Candelario Marcelino, the civil engineer; and petitioner, the Highway District Engineer.
During the trial on the merits, the petitioner put up the defense that he had no
knowledge of or participation in the accident and that, when it happened, he was not
present in the government compound. Apart from the fact that it was a Saturday and a
non-working day, he was in Iloilo. The trial court found that, with the exception of the
petitioner, all of the defendants were present at the Highway's compound when the
accident occurred. However, it still adjudged the petitioner liable for damages
because the petitioner was supposed to know what his men do with their government
equipment within an area under his supervision. Thus, on January 19, 1982, the trial court
rendered a decision finding all the defendants liable for damages under Articles 1172
and 2176 of the New Civil Code. The petitioner appealed to the Intermediate Appellate
Court which affirmed the decision of the trial court and further ordered the defendants
to pay P5,000.00 exemplary damages. Defendant Candelario Marcelino was, however,
absolved from liability. In this present petition, the petitioner contends that the
appellate court committed a palpable error when it ruled that the petitioner was
present when the accident happened and that he had given permission to the other
defendants to work on a Saturday, a non-working day. The petitioner argues that
considering these were the facts relied upon by the said court in holding that he was
negligent and thus liable for damages, such a conclusion, is without basis.

Issue: Whether IAC committed an error when it rules that Genson was present when the
accident happened and that he had given permission to the other defendants to work
on a Saturday, a non-working day thereby making him liable for damages

Held: YES. With regard to the main contention of the petitioner that the appellate court
based its conclusions on an erroneous finding of fact, we agree with him that the
appellate court's finding that he was present within the premises when the accident
happened is not supported by evidence indisputably showing that he was indeed
there. Since the evidence fails to establish petitioner Genson's presence when the
payloader's bucket fell on the head of Mr. Adarle, any liability on his part would be
based only on his alleged failure to exercise proper supervision over his subordinates.
There is likewise no sufficient basis for the "master-servant" doctrine in tort law to apply.
Buensalido was not working overtime as a government employee. It is doubtful if the
district engineer can be considered an "employer" for purposes of tort liability who may
be liable even if he was not there. No evidence was presented to show that an
application for overtime work or a claim for overtime pay from the district engineer's
office was ever filed. It is more logical to presume that Buensalido, the operator of the
payloader, was trying to earn a little money on the side from the junk buyer and that his
presence in the compound on that Saturday was a purely private arrangement. From
the records of this case, we are not disposed to rule that a supervisor who tolerates his
subordinates to moonlight on a non-working day in their office premises can be held
liable for everything that happens on that day.

It would have been preferable if Mr. Arbatin brought his own payloader operator and
perhaps, his own equipment but we are not dealing with sound office practice in this
case. The issue before us is subsidiary liability for tort comitted by a government
employee who is moonlighting on a non-working day. There is no showing from the
records that Genson received anything which could be called "inordinate gain." It is
possible that he permitted work on a Saturday to accomodate an acquaintance but it
is more plausible that he simply wanted to clear his compound of junk and the best
time for the winning bidder to do it was on a non-working day. At any rate, we see no
malice, bad faith, or gross negligence on the part of Genson to hold him liable for the
acts of Buensalido and Arbatin.

WHEREFORE, the decision of the Intermediate Appellate Court is hereby REVERSED and
SET

ASIDE. The complaint against Jesus Genson is DISMISSED.

Loafing – Idleness, not doing ones job

Moonlighting – Doing a job outside his duty.

 2. Ernesto Martin vs. Hon. Court Of Appeals And Manila Electric Company
G.R. No. 82248 January 30, 1992
Facts: Ernesto Martin was the owner of a private car bearing license plate No. NPA-930.
At around 2 o'clock in the morning of May 11, 1982, while being driven by Nestor Martin,
it crashed into a Meralco electric post on Valley Golf Road, in Antipolo, Rizal. The car
was wrecked and the pole severely damaged. MERALCO subsequently demanded
reparation from Ernesto Martin, but the demand was rejected. It thereupon sued him for
damages in the Regional Trial Court of Pasig, alleging inter alia that he was liable to it in
the sum of P17,352.00 plus attorney's fees and litigation costs as the employer of Nestor
Martin. The petitioner's main defense was that Nestor Martin was not his employee. The
Regional Trial Court held in favor of the plaintiff, awarding him the amount claimed,
with 12% interest, and P4,000.00 attorney's fees, plus costs. The decision was seasonably
elevated to the Court of Appeals, which affirmed it in toto on February 22, 1988, 2
prompting this petition for review.

Issue: Whether Ernesto Martin is the employer of Nestor Martin thereby liable for
damages. NO

Held: The petition has merit. It is important to stress that the complaint for damages was
filed by the private respondent against only Ernesto Martin as alleged employer of
Nestor Martin, the driver of the car at the time of the accident. Nestor Martin was not
impleaded. The action was based on tort under Article 2180 of the Civil Code.

Whether or not engaged in any business or industry, the employer under Article 2180 is
liable for the torts committed by his employees within the scope of their assigned task.
But it is necessary first to establish the employment relationship. Once this is done, the
plaintiff must show, to hold the employer liable, that the employee was acting within
the scope of his assigned task when the tort complained of was committed. It is only
then that the defendant, as employer, may find it necessary to interpose the defense of
due diligence in the selection and supervision of the employee as allowed in that
article. In the case at bar, no evidence whatsoever was adduced by the plaintiff to
show that the defendant was the employer of Nestor Martin at the time of the
accident. The trial court merely presumed the existence of the employer-employee
relationship.

The facts proved, or not denied, viz., the ownership of the car and the circumstances of
the accident, are not enough bases for the inference that the petitioner is the employer
of Nestor Martin. In the modern urban society, most male persons know how to drive
and do not have to employ others to drive for them unless this is needed for business
reasons. Many cannot afford this luxury, and even if they could, may consider it an
unnecessary expense and inconvenience. In the present case, the more plausible
assumption is that Nestor Martin is a close relative of Ernesto Martin and on the date in
question borrowed the car for some private purpose.
Nestor would probably not have been accommodated if he were a mere employee
for employees do not usually enjoy the use of their employer's car at two o'clock in the
morning.As the employment relationship between Ernesto Martin and Nestor Martin
could not be presumed, it was necessary for the plaintiff to establish it by evidence.
Meralco had the burden of proof, or the duty "to present evidence on the fact in issue
necessary to establish his claim" as required by Rule 131, Section 1 of the Revised Rules
of Court. Failure to do this was fatal to its action.

WHEREFORE, the petition is GRANTED. The decision of the respondent court is REVERSED.

3. G.R. No. L-32774 October 14, 1930

BALBINO CUISON, plaintiff-appellant,

vs.
NORTON & HARRISON CO., TELESFORO BINOYA Y ALMINANZA and FRANCISCO
BAUTISTA Y CRUZ,defendants.
NORTON & HARRISON CO., appellee.

FACTS:

This is an action brought by the father to recover damages in the amount of

P30,000 for the death of his son, alleged to have been caused by the
negligence of the defendant.

On the afternoon of August 9, 1928, Moises Cuison, a boy 7 years of age, the son
of the plaintiff, was on his way to the Santa Mesa School, in the City of Manila, in
company with his sister Marciana. As they came near to the fire station, some
large pieces of lumber on a truck which had stopped fell from it pinning the boy
beneath, and causing his almost instant death. The truck in questioned was
owned by Antonio Ora. It was driven by Felix Jose, with Telesforo Binoya as the
washing and Francisco Bautista as the helper, the two latter being youths less
than18 years of age. Jose Binoya, and Bautista were employees of Ora. The
truck was rented by Ora to Norton & Harrison Co. On the truck were the letters
"N-H," which were the first letters of the firm name. Ora was in the employ of
Norton & Harrison Co. as a capataz. It was his duty as such employee to direct
the loading and transportation of the lumber. When the accident occurred the
lumber had become loosened, and it was to rearrange it that the truck halted,
without, however, there arrangement having been made before the pieces of
lumber had fallen and killed the boy.

ISSUE:
The most important question of fact to determine was the relationship of Ora to
Norton & Harrison Co., whether he was a servant of the company or an
independent contractor.

RULING:

Ora was a contractor and an employee at the same time of Norton & Harrison
Co.

It is well to repeat that under the civil law an employer is only liable for the
negligence of his employees in the discharge of their respective duties. The
defense of independent contractor would be a valid one in the Philippines just
as it would be in the United States. Here Ora was a contractor, but it does not
necessarily follow that he was an independent contractor. The reason for this
distinction is that the employer retained the power of directing and controlling
the work. The chauffeur and the two persons on the truck were the employees
of Ora, the contractor, but Ora, the contractor, was an employee of Norton &
Harrison Co., charged with the duty of directing the loading and transportation
of the lumber. And it was the negligence in loading the lumber and the use of
minors on the truck which caused the death of the unfortunate boy. On the
facts and the law, Ora was not an independent contractor, but was the servant
of the defendant, and for his negligence defendant was responsible.

G.R. No. 104658. April 7, 1993.

4. PILIPINAS SHELL PETROLEUM CORPORATION, petitioner,

vs.
THE HONORABLE COURT OF APPEALS and CLARITA T. CAMACHO, respondents.

FACTS:

Private respondent Clarita T. Camacho (private respondent for short) was the
operator of a gasoline station in Naguilian Road, Baguio City, wherein she sells
petitioner Shell's petroleum products. Sometime in April 1983, private respondent
requested petitioner to conduct a hydro-pressure test on the underground
storage tanks of the said station in order to determine whether or not the sales
losses she was incurring for the past several months were due to leakages
therein. Petitioner acceded to the said request and on April 27, 1983, one Jesus
"Jessie" Feliciano together with other workers, came to private respondent's
station with a Job Order from petitioner to perform the hydro-pressure test.

On the same day, Feliciano and his men drained the underground storage tank
which was to be tested of its remaining gasoline. After which, they filled the tank
with water through a water hose from the deposit tank of private respondent.
Then, after requesting one of private respondent's gasoline boys to shut off the
water when the tank was filled, Feliciano and his men left. At around 2:00 a.m.
the following day, private respondent saw that the water had reached the lip of
the pipe of the underground storage tank and so, she shut off the water faucet.

At around 5:30 a.m., private respondent's husband opened the station and
started selling gasoline. But at about 6:00 a.m., the customers who had bought
gasoline returned to the station complaining that their vehicles stalled because
there was water in the gasoline that they bought. On account of this, private
respondent was constrained to replace the gasoline sold to the said customers.
However, a certain Eduardo Villanueva, one of the customers, filed a complaint
with the police against private respondent for selling the adulterated gasoline. In
addition, he caused the incident to be published in two local newspapers.

Petitioner undertook to settle the criminal complaint filed by Villanueva.

Subsequently, Villanueva filed an Affidavit of Desistance.

Thereafter, private respondent demanded from petitioner the payment of

damages in the amount of P10,000.00. Petitioner, instead, offered private
respondent additional credit line and other beneficial terms, which offer was,
however, rejected.

Subsequently, or on October 12, 1983, private respondent filed before the trial
court a complaint for damages against petitioner due to the latter's alleged
negligence in the conduct of the hydro-pressure test in her gasoline station. For
its part, petitioner denied liability because, according to it, the hydro-pressure
test on the underground storage tanks was conducted by an independent
contractor.

The trial court dismissed private respondent's complaint for damages.

From the adverse decision of the trial court, private respondent appealed to the
Court of Appeals which court reversed the decision of the trial court.

ISSUE:

Whether or not petitioner should be held accountable for the damage to

private respondent due to the hydro-pressure test conducted by Jesus Feliciano.
NO.

RULING:

It is a well-entrenched rule that an employer-employee relationship must exist

before an employer may be held liable for the negligence of his employee. It is
likewise firmly settled that the existence or non-existence of the employer-
employee relationship is commonly to be determined by examination of certain
factors or aspects of that relationship. These include: (a) the manner of selection
and engagement of the putative employee; (b) the mode of payment of
wages; (c) the presence or absence of a power to control the putative
employee's conduct, 4 although the latter is the most important element.

As aptly held by the trial court, petitioner did not exercise control and
supervision over Feliciano with regard to the manner in which he conducted the
hydro-pressure test. All that petitioner did, through its Field Engineer, Roberto
Mitra, was relay to Feliciano the request of private respondent for a hydro-
pressure test, to determine any possible leakages in the storage tanks in her
gasoline station. The mere hiring of Feliciano by petitioner for that particular task
is not the form of control and supervision contemplated by may be the basis for
establishing an employer-employee relationship between petitioner and
Feliciano. The fact that there was no such control is further amplified by the
absence of any Shell representative in the job site time when the test was
conducted. Roberto Mitra was never there. Only Feliciano and his men were.

A careful perusal of the records will lead to the conclusion that Feliciano is an
independent contractor.

Feliciano is independently maintaining a business under a duly registered

business name, "JFS Repair and Maintenance Service," and is duly registered
with the Bureau of Domestic Trade. 7 He does not enjoy a fixed salary but
instead charges a lump sum consideration for every piece of work he
accomplishes. 8 If he is not able to finish his work, he does not get paid, as what
happened in this case. 9 Further, Feliciano utilizes his own tools and equipment
and has a complement of workers. Neither is he required to work on a regular
basis. Instead, he merely awaits calls from clients such as petitioner whenever
repairs and maintenance services are requested. Moreover, Feliciano does not
exclusively service petitioner because he can accept other business but not
from other oil companies. 10 All these are the hallmarks of an independent
contractor.

Being an independent contractor, Feliciano is responsible for his own acts and
omissions. As he alone was in control over the manner of how he was to
undertake the hydro-pressure test, he alone must bear the consequences of his
negligence, if any, in the conduct of the same.
5. DLBCI vs CA and Steen (1962)

Facts: Luna, a driver, was an employee of De Leon Brokerage Co., Inc. (DLBCI)
who owns the cargo truck assigned to Luna. DLBCI instructed Luna to deliver
cargo Pampanga and Nueva Ecija. Luna delivered some of the cargo to
Pampanga but immediately returned to Manila where he collided with a
passenger jeepney causing physical injury to Steen and death to other
passenger. Luna and the driver of the jeepney were prosecuted for the crime of
homicide with physical injuries thru reckless imprudence. Steen reserved her
right to file a separate civil action. Later on the criminal trial, only Luna was
convicted for the crime of homicide with physical injuries thru reckless
imprudence.

After the conviction of Luna, Steen filed a claim for damages against Luna and
DLBCI and alleged that the latter’s act of employing Luna as driver of its cargo
truck, and Luna's careless manner of driving it constitutes “gross negligence and
recklessness.” She likewise prayed that DLBCI and Luna be held solidarily liable.
As proof of Luna's negligence, she presented during the hearing the judgment
of conviction in the criminal case.

DLBCI claimed that Luna was not in the performance of his duty at the time of
the accident for his failure to abide with the instructions. The trial court awarded
Steen civil indemnity.

Issue: WON the case against DLBCI based on Quasi-delict. (If based on crime it
is premature for failure to allege the insolvency of Luna)

Ruling: No.

In Steen’s allegation, she pointed out that DLBCI’s act of employing Luna as
driver of its cargo truck, and to Luna's careless manner of driving it, constitutes
“gross negligence xxx.”

Since averment had been made of the employer-employee relationship and of

the damages caused by the employee on occasion of his function, there is a
clear statement of a right of action under Article 2180 of the Civil Code.

Whatever doubts remain as to the nature of respondent's action are resolved by

her prayer that petitioner and its employee be held solidarily liable.

xxx respondent clearly did not base her suit on the criminal conviction.
This fact, it is true, was alleged in a paragraph separate from her allegation of
Luna's negligene as having been the cause of her injuries; but mention of the
criminal conviction merely tended to support her claim that Luna had been
recklessly negligent in driving the truck.

She waited for the results of the criminal action because she wanted to be sure
which driver and respective employer she could rightly sue, since both Luna and
the driver of the passenger jeepney were prosecuted.

And she reserved because otherwise, the court in the criminal proceeding
would have awarded her indemnity, since the civil action for recovery of civil
liability arising from the offense is deemed instated with the criminal action

In such event, she would no longer be able to file the separate civil action
contemplated by the civil code, not because of failure to reserve the same but
because she would have already received indemnity for her injuries.

Plainly, the reservation made in the criminal action does not preclude a
subsequent action based on a quasi-delict.

Sub-Issue: WON Luna was in the performance of his duties at the time of the
collision.

Ruling: Yes.

In the absence of determinative proof that the deviation was so complete as

would constitute a cessation or suspension of his service, petitioner should be
held liable, In fact, the Court of Appeals disbelieved the alleged violation of
instructions.

Issue: WON DLBCI is solidarily liable with Luna.

Ruling: Yes.

Since both Luna and petitioner are responsible for the quasi-delict, their liablity is
solidary, although the latter can recover from the former whatever sums it pays
to respondent.

6. Valenzuela vs CA, Li and ACI (1996);

Facts: Valenzuela was driving along Aurora Boulevard when she noticed that
her tire was flat. She put on her emergency lights and parked her vehicle in a no
parking zone around the highway. Unfortunately, Li, Assistant Manager of ACI,
while driving the car owned by ACI, he hit Valenzuela. Valenzuela’s leg was
later on amputated due to the accident.

Valenzuela sued Li and ACI.

During the trial, Rogelio Rodriguez was presented and testified that 2 in the
morning, he observed a car being driven at a "very fast" speed, racing towards
the general direction of Araneta Avenue. Spontaneously reacting to the
incident, he crossed the street, noting that a man reeking with the smell of liquor
had alighted from the offending vehicle in order to survey the incident. The trial
court holds Li liable and dismissed the claim against ACI.

Valenzuela appealed with the CA claiming that ACI, being the employer of Li
and being the owner of the car, should be held liable with Li.

Li also appealed before the CA and argued that the proximate cause of the
accident was the negligent act of Valenzuela in parking her car alongside
Aurora Boulevard, which entire area Li points out, is a no parking zone.
Alternatively, he argues that in the event that this Court finds him negligent, such
negligence ought to be mitigated by the contributory negligence of
Valenzuela.

1st Issue: WON Valenzuela is liable of contributory negligence.

Ruling: No.

Under the circumstances described, Valenzuela did exercise the standard

reasonably dictated by the emergency and could not be considered to have
contributed to the unfortunate circumstances which eventually led to the
amputation of one of her lower extremities.

The emergency which led her to park her car on a sidewalk in Aurora Boulevard
was not of her own making, and it was evident that she had taken all
reasonable precautions.

The circumstances established by the evidence adduced in the court below

plainly demonstrate that Li was grossly negligent in driving his Mitsubishi Lancer.
It bears emphasis that he was driving at a fast speed at about 2:00 A.M. after a
heavy downpour had settled into a drizzle rendering the street slippery.

There is ample testimonial evidence on record to show that he was under the
influence of liquor.
2nd Issue: WON ACI is liable.

Ruling: No.

xxx the relationship in question is not based on the principle of respondeat

superior, which holds the master liable for acts of the servant, but that of pater
familias, in which the liability ultimately falls upon the employer, for his failure to
exercise the diligence of a good father of the family in the selection and
supervision of his employees. Utilizing the bonus pater familias standard
expressed in Article 2180 of the Civil Code, we are of the opinion that Li's
employer, Alexander Commercial, Inc. is jointly and solidarily liable for the
damage xxx.

In the instant case, Li was an Assistant Manager of Alexander Commercial, Inc. It

also facilitated meeting between Li and its clients by providing the former with a
convenient mode of travel.

In fine, Alexander Commercial, inc. has not demonstrated, to our satisfaction,

that it exercised the care and diligence of a good father of the family in
entrusting its company car to Li.

No allegations were made as to whether or not the company took the steps
necessary to determine or ascertain the driving proficiency and history of Li, to
whom it gave full and unlimited use of a company car.

Not having been able to overcome the burden of demonstrating that it should
be absolved of liability for entrusting its company car to Li, said company, based
on the principle of bonus pater familias, ought to be jointly and severally liable
with the former for the injuries sustained by Ma. Lourdes Valenzuela during the
accident.

Note:

 First, the case of St. Francis High School vs. Court of Appeals upon which
respondent court has placed undue reliance, dealt with the subject of a
school and its teacher's supervision of students during an extracurricular
activity. These cases now fall under the provision on special parental
authority found in Art. 218 of the Family Code which generally
encompasses all authorized school activities, whether inside or outside
school premises.

 Under the "emergency rule" adopted by this Court in Gan vs. Court of
Appeals, an individual who suddenly finds himself in a situation of danger
and is required to act without much time to consider the best means that
 may be adopted to avoid the impending danger, is not guilty of
negligence if he fails to undertake what subsequently and upon reflection
may appear to be a better solution, unless the emergency was brought
by his own negligence.17
 Contributory negligence is conduct on the part of the injured party,
contributing as a legal cause to the harm he has suffered, which falls
below the standard to which he is required to conform for his own
protection.
 We stressed, in Corliss vs. Manila Railroad Company,25 that negligence is
the want of care required by the circumstances.
 We agree with the respondent court that the relationship in question is not
based on the principle of respondeat superior, which holds the master
liable for acts of the servant, but that of pater familias, in which the liability
ultimately falls upon the employer, for his failure to exercise the diligence
of a good father of the family in the selection and supervision of his
employees.

7. MARIA BENITA A. DULAY, in her own behalf and in behalf of the minor children
KRIZTEEN ELIZABETH, BEVERLY MARIE and NAPOLEON II, all surnamed DULAY,
petitioners, vs. THE COURT OF APPEALS, Former Eighth Division, HON. TEODORO P.
REGINO, in his capacity as Presiding Judge of the Regional Trial Court National Capital
Region, Quezon City, Br. 84, SAFEGUARD INVESTIGATION AND SECURITY CO., INC.,
and SUPERGUARD SECURITY CORPORATION, respondents.

Facts: On December 7, 1988, an altercation between Benigno Torzuela and Atty. Napoleon
Dulay occurred as a result of which Benigno Torzuela, the security guard on duty at the said
carnival, shot and killed Atty. Napoleon Dulay.

Herein petitioner Maria Benita A. Dulay, widow of the deceased Napoleon Dulay, filed an action
for damages against BenignoTorzuela and herein private respondents Safeguard Investigation
and Security Co., Inc., ("SAFEGUARD") and/or Superguard Security Corp. ("SUPERGUARD"),
alleged employers of defendant Torzuela.

Petitioners Argument: The incident was due to the concurring negligence of the defendants.
Defendant TORZUELA'S wanton and reckless discharge of the firearm issued to him by
defendant SAFEGUARD and/or SUPERGUARD was the immediate and proximate cause of the
injury, while the negligence of defendant SAFEGUARD and/or SUPERGUARD consists in its
having failed to exercise the diligence of a good father of a family in the supervision and control
of its employee to avoid the injury.

Defense: SUPERGUARD filed a motion to dismiss and claimed that Torzuela's act of shooting
Dulay was beyond the scope of his duties, and that since the alleged act of shooting was
committed with deliberate intent (dolo), the civil liability therefor is governed by Article 100 of the
Revised Penal Code.
Respondent SUPERGUARD further alleged that a complaint for damages based on negligence
under Article 2176 of the New Civil Code, such as the one filed by petitioners, cannot lie, since
the civil liability under Article 2176 applies only to quasi-offenses. In addition, the private
respondent argued that petitioners' filing of the complaint is premature considering that the
conviction of Torzuela in a criminal case is a condition sine qua non for the employer's
subsidiary liability.

Respondent SAFEGUARD also filed a motion praying that it be excluded as defendant on the
ground that defendant Torzuela is not one of its employees.

Petitioner’s opposing argument: Petitioners opposed both motions, stating that their cause of
action against the private respondents is based on their liability under Article 2180 of the New
Civil Code which provides that Employers shall be liable for the damages caused by their
employees and household helpers acting within the scope of their assigned tasks, even though
the former are not engaged in any business or an industry.

Meanwhile, an Information dated March 21, 1989 charging Benigno Torzuela with homicide was
filed before the Regional Trial Court.

RTC: Judge Regino issued an order granting SUPERGUARD'S motion to dismiss and
SAFEGUARD'S motion for exclusion as defendant. The respondent judge held that the
complaint did not state facts necessary or sufficient to constitute a quasi-delict since it does not
mention any negligence on the part of Torzuela in shooting Napoleon Dulay or that the same
was done in the performance of his duties. Respondent judge also declared that the complaint
was one for damages founded on crimes punishable under Articles 100 and 103 of the Revised
Penal Code as distinguished from those arising from, quasi-delict.

CA: Affirmed.

Issue: W/N Superguard and Safeguard commited an actionable breach and can be civilly liable
even if Benigno Torzuela is already being prosecuted for homicide

Held: Yes.

It is undisputed that Benigno Torzuela is being prosecuted for homicide for the fatal shooting of
Napoleon Dulay. Rule 111 of the Rules on Criminal Procedure provides:

Sec. 1. Institution of criminal and civil actions. When a criminal action is instituted, the civil action
for the recovery of civil liability is impliedly instituted with the criminal action, unless the offended
party waives the civil action, reserves his right to institute it separately or institutes the civil
action prior to the criminal action. Such civil action includes recovery of indemnity under the
Revised Penal Code, and damages under Articles 32, 33, 34, and 2176 of the Civil Code of the
Philippines arising from the same act or omission of the accused.

It is well-settled that the filing of an independent civil action before the prosecution in the
criminal action presents evidence is even far better than a compliance with the requirement of
express reservation. This is precisely what the petitioners opted to do in this case. However, the
private respondents opposed the civil action on the ground that the same is founded on a delict
and not on a quasi-delict as the shooting was not attended by negligence. What is in dispute
therefore is the nature of the petitioner's cause of action.

The nature of a cause of action is determined by the facts alleged in the complaint as
constituting the cause of action. The purpose of an action or suit and the law to govern it is to be
determined not by the claim of the party filing the action, made in his argument or brief, but
rather by the complaint itself, its allegations and prayer for relief. An examination of the
complaint in the present case would show that the plaintiffs, petitioners herein, are invoking their
right to recover damages against the private respondents for their vicarious responsibility for the
injury caused by Benigno Torzuela's act of shooting and killing Napoleon Dulay, as stated in
paragraphs 1 and 2 of the complaint.

Article 2176 of the New Civil Code provides:

Art. 2176. Whoever by act or omission causes damage to another, there being fault or
negligence, is obliged to pay for the damage done. Such fault or negligence, if there is no pre-
existing contractual relation between the parties is called a quasi-delict and is governed by the
provisions of this Chapter.

Contrary to the theory of private respondents, there is no justification for limiting the scope of
Article 2176 of the Civil Code to acts or omissions resulting from negligence. Well-entrenched is
the doctrine that article 2176 covers not only acts committed with negligence, but also acts
which are voluntary and intentional. As far back as the definitive case of Elcano v. Hill (77 SCRA
98 [1977]), this Court already held that: Article 2176, where it refers to "fault or negligence,"
covers not only acts "not punishable by law" but also acts criminal in character; whether
intentional and voluntary or negligent. Consequently, a separate civil action against the offender
in a criminal act, whether or not he is criminally prosecuted and found guilty or acquitted,
provided that the offended party is not allowed, if he is actually charged also criminally, to
recover damages on both scores, and would be entitled in such eventuality only to the bigger
award of the two, assuming the awards made in the two cases vary. In other words, the
extinction of civil liability referred to in Par. (e) of Section 3, Rule 111, refers exclusively to civil
liability founded on Article 100 of the Revised Penal Code, whereas the civil liability for the same
act considered as quasi-delict only and not as a crime is not extinguished even by a declaration
in the criminal case that the criminal act charged has not happened or has not been committed
by the accused. Briefly stated, We here hold, in reiteration of Garcia, that culpa aquiliana
includes voluntary and negligent acts which may be punishable by law.

Private respondents further aver that Article 33 of the New Civil Code applies only to injuries
intentionally committed pursuant to the ruling in Marcia that the actions for damages allowed
thereunder are ex-delicto. However, the term "physical injuries" in Article 33 has already been
construed to include bodily injuries causing death. It is not the crime of physical injuries defined
in the Revised Penal Code. It includes not only physical injuries but also consummated,
frustrated, and attempted homicide. Although in the Marcia case (supra), it was held that no
independent civil action may be filed under Article 33 where the crime is the result of criminal
negligence, it must be noted however, that Torzuela, the accused in the case at bar, is charged
with homicide, not with reckless imprudence, whereas the defendant in Marcia was charged
with reckless imprudence. Therefore, in this case, a civil action based on Article 33 lies.

Private respondents also contend that their liability is subsidiary under the Revised Penal Code;
and that they are not liable for Torzuela's act which is beyond the scope of his duties as a
security guard. It having been established that the instant action is not ex-delicto, petitioners
may proceed directly against Torzuela and the private respondents. Under Article 2180 of the
New Civil Code as aforequoted, when an injury is caused by the negligence of the employee,
there instantly arises a presumption of law that there was negligence on the part of the master
or employer either in the selection of the servant or employee, or in supervision over him after
selection or both. The liability of the employer under Article 2180 is direct and immediate; it is
not conditioned upon prior recourse against the negligent employee and a prior showing of the
insolvency of such employee. Therefore, it is incumbent upon the private respondents to prove
that they exercised the diligence of a good father of a family in the selection and supervision of
their employee.

Since Article 2176 covers not only acts of negligence but also acts which are intentional and
voluntary, it was therefore erroneous on the part of the trial court to dismiss petitioner's
complaint simply because it failed to make allegations of attendant negligence attributable to
private respondents.

WHEREFORE, premises considered, the petition for review is hereby GRANTED. The decision
of the Court of Appeals as well as the Order of the Regional Trial Court dated April 13, 1989 are
hereby REVERSED and SET ASIDE. Civil Case No. Q-89-1751 is remanded to the Regional
Trial Court for trial on the merits. This decision is immediately executory.

8. KATRINA Q. PLUMMER v. CENTER PSYCHIATRISTS, LTD. [Record No. 952306

September 13, 1996]

Because this case was decided on demurrer, we will state the facts "in accordance with well-
established principles that a demurrer admits the truth of all material facts that are properly
pleaded, facts which are impliedly alleged, and facts which may be fairly and justly inferred from
alleged facts.”

FACTS

• Dr. Roque Gerald, a licensed clinical psychologist, was employed by the defendant,
Center Psychiatrists, Ltd.

- Gerald provided therapy and counseling services to the plaintiff, Katrina Q. Plummer,
who was suffering from depression.
- Gerald was "cognizant of [the] [p]laintiff's psychological and emotional history, which
included her prior attempts at suicide," and he knew "that she was suffering from suicide
ideation, and depression."

• On February 8, 1989, while the plaintiff was receiving counseling from Gerald at the
defendant's place of business, Gerald committed "an act of sexual intercourse upon plaintiff
which constituted an assault and battery upon her since, Dr. Roque Gerald, through his
education, experience and knowledge of plaintiff overcame her will so that she was unable to
act with volition."

• The plaintiff filed her motion for judgment against the defendant seeking to recover, inter
alia, damages caused by the assault and battery. The plaintiff alleged that:

- Gerald was an employee, agent, and servant of the defendant and that he was acting
within the scope of his employment when he engaged in sexual intercourse with her.

• The defendant filed a demurrer to the plaintiff's motion for

judgment asserting, among other things, that:

- as a matter of law, it cannot be liable to the plaintiff because Gerald was not acting in the
course of his employment when he committed the act of sexual intercourse and, therefore,

- the doctrine of respondeat superior is not applicable.

TRIAL COURT: granted the defendant's demurrer.

• The plaintiff argues that the trial court erred by dismissing her claim for assault and
battery against the defendant because she pled sufficient facts in her motion for judgment
which, if proven at trial, would create a jury issue on the question whether Gerald was acting
within the course of his employment when he committed an act of sexual intercourse upon her.

• The defendant argues that, as a matter of law, Gerald was not acting within the scope of
his employment, but "solely for his own personal interests.”
ISSUE: whether the trial court erred by holding, as a matter of law, that a psychologist who had
sexual intercourse with a patient was acting outside the scope of his employment, thus
rendering the doctrine of respondeat superior inapplicable.

RULING: Yes. The trial court erred.

Pursuant to the doctrine of respondeat superior, an employer is liable for the tortious acts of its
employee if the employee was performing his employer’s business and acting within the scope
of his employment when the tortious acts were committed.

Additionally, “when an employer-employee relationship has been established, ‘the burden is on

the employer to prove that the employee was not acting within the scope of his employment
when he committed the act complained of, and if the evidence leaves the question in doubt it
becomes an issue to be determined by the jury.’

In Commercial Business Systems, we noted that “in determining whether an agent's tortious act
is imputed to the principal, the doctrine's primary focus is on whether the activity that gave rise
to the tortious act was within or without the agent's scope of employment."

We also stated the test that we believe is applicable here:

"The courts . . . have long since departed from then rule of non-liability of an employer for wilful
or malicious acts of his employee. Under the modern view, the wilfulness or wrongful motive
which moves an employee to commit an act which causes injury to a third person does not of
itself excuse the employer’s liability therefor. The test of liability is not the motive of the
employee in committing the act complained of, but whether that act was within the scope of the
duties of employment and in the execution of the service for which he was engaged."

We are of opinion that, here, the facts alleged in the motion for judgment are sufficient to
support the plaintiff’s legal conclusion that Gerald acted within the scope of his employment
when he committed the wrongful acts against the plaintiff. According to the plaintiff's allegations,
Gerald’s act was committed while he was performing his duties as a psychologist in the
execution of the services for which he was employed, in this instance, counseling and therapy.
Additionally, Gerald's education, experience, and knowledge of the plaintiff, who was depressed
and had suicidal ideations, enabled him "[to overcome] her will so that she was unable to act
with volition." Furthermore, at this stage of the proceedings, there simply are not sufficient facts
which would permit us to hold, as a matter of law, that the defendant has met its burden of
showing that its employee was not acting within the scope of his employment.

The defendant asserts that our recent decision in Tomlin v. McKenzie, supports his contention
that Gerald's acts, as a matter of law, were outside the scope of his employment. We disagree

In Tomlin, the plaintiffs filed their motion for judgment against Patsye D. McKenzie, a licensed
clinical social worker, and her employer, a professional corporation owned solely by McKenzie.
The motion for judgment alleged that McKenzie provided family therapy to the plaintiffs pursuant
to an order of referral by the Juvenile & Domestic Relations District Court of the City of
Chesapeake. The motion for judgment further alleged that in the course of providing that
therapy, McKenzie and her employer intentionally and maliciously committed certain acts
constituting malpractice and defamation.

The defendants filed a plea in bar, seeking dismissal of the action on the basis that McKenzie
and her employer were entitled to common law and statutory immunity. McKenzie and her
employer asserted that common law sovereign immunity protected them from civil suits for
actions performed in McKenzie's capacity as a court-appointed officer. We reversed the
judgment of the trial court which had sustained their motions because McKenzie’s conduct was
outside the scope of the court-ordered referral. Tomlin is not implicated here. McKenzie's
employer did not claim that she was acting outside the scope of her employment when she
committed the allegedly tortious acts. Rather, we reviewed the facts pled in the plaintiffs' motion
for judgment, considered her specific factual allegations, applied the principles relevant to the
doctrine of sovereign immunity, and held that the intentional torts alleged were outside the
scope of McKenzie's court-appointed role.

Here, however, we do not concern ourselves with sovereign immunity, but with the doctrine of
respondeat superior. Our review of the facts and reasonable inferences therefrom alleged in the
plaintiff's motion for judgment compels us to conclude that she has pled sufficient facts which, if
proven, would create a jury issue whether Gerald was acting within the scope of his
employment.

Accordingly, we will reverse the judgment of the trial court and remand this case for further
proceedings consistent with this opinion.

Reversed and remanded.

G.R. No. 160039. June 29, 2004

9. RAYMUNDO ODANI SECOSA, EL BUENASENSO SY and DASSAD WAREHOUSING and

PORT SERVICES, INCORPORATED, petitioners, vs. HEIRS OF ERWIN SUAREZ
FRANCISCO, respondents.

YNARES-SANTIAGO, J.:

Facts

On June 27, 1996, at around 4:00 p.m., Erwin Suarez Francisco, an eighteen year old third year
physical therapy student of the Manila Central University, was riding a motorcycle along Radial
10 Avenue, near the Veteran Shipyard Gate in the City of Manila. At the same time, petitioner,
Raymundo Odani Secosa, was driving an Isuzu cargo truck with plate number PCU-253 on the
same road. The truck was owned by petitioner, Dassad Warehousing and Port Services, Inc.

Traveling behind the motorcycle driven by Francisco was a sand and gravel truck, which in turn
was being tailed by the Isuzu truck driven by Secosa. The three vehicles were traversing the
southbound lane at a fairly high speed. When Secosa overtook the sand and gravel truck, he
bumped the motorcycle causing Francisco to fall. The rear wheels of the Isuzu truck then ran
over Francisco, which resulted in his instantaneous death. Fearing for his life, petitioner Secosa
left his truck and fled the scene of the collision.[3]

Respondents, the parents of Erwin Francisco, thus filed an action for damages against
Raymond Odani Secosa, Dassad Warehousing and Port Services, Inc. and Dassads president,
El Buenasucenso Sy.

On June 19, 1998, after a full-blown trial, the court a quo rendered a decision in favor of herein
respondents, ordering the defendants to pay plaintiffs jointly and severally.

Petitioners appealed the decision to the Court of Appeals, which affirmed the appealed decision
in toto.

ISSUE

THE COURT OF APPEALS SERIOUSLY ERRED WHEN IT AFFIRMED THE DECISION OF

THE TRIAL COURT THAT PETITIONER DASSAD DID NOT EXERCISE THE DILIGENCE OF
A GOOD FATHER OF A FAMILY IN THE SELECTION AND SUPERVISION OF ITS
EMPLOYEES WHICH IS NOT IN ACCORDANCE WITH ARTICLE 2180 OF THE NEW CIVIL
CODE AND RELATED JURISPRUDENCE ON THE MATTER.
Ruling

No, CA did not err resolving in favor of the heirs.

On the issue of whether petitioner Dassad Warehousing and Port Services, Inc. exercised the
diligence of a good father of a family in the selection and supervision of its employees, we find
the assailed decision to be in full accord with pertinent provisions of law and established
jurisprudence.

Article 2176 of the Civil Code provides:

Whoever by act or omission causes damage to another, there being fault or negligence, is
obliged to pay for the damage done. Such fault or negligence, if there is no pre-existing
contractual relation between the parties, is called a quasi-delict and is governed by the
provisions of this Chapter.

On the other hand, Article 2180, in pertinent part, states:

The obligation imposed by article 2176 is demandable not only for ones own acts or omissions,
but also for those of persons for whom one is responsible x x x.

Employers shall be liable for the damages caused by their employees and household helpers
acting within the scope of their assigned tasks, even though the former are not engaged in any
business or industry x x x.

The responsibility treated of in this article shall cease when the persons herein mentioned prove
that they observed all the diligence of a good father of a family to prevent damage.

Based on the foregoing provisions, when an injury is caused by the negligence of an employee,
there instantly arises a presumption that there was negligence on the part of the employer either
in the selection of his employee or in the supervision over him after such selection. The
presumption, however, may be rebutted by a clear showing on the part of the employer that it
exercised the care and diligence of a good father of a family in the selection and supervision of
his employee. Hence, to evade solidary liability for quasi-delict committed by an employee, the
employer must adduce sufficient proof that it exercised such degree of care.

How does an employer prove that he indeed exercised the diligence of a good father of a family
in the selection and supervision of his employee?

In fine, the party, whether plaintiff or defendant, who asserts the affirmative of the issue has the
burden of presenting at the trial such amount of evidence required by law to obtain a favorable
judgment[8] . . . In making proof in its or his case, it is paramount that the best and most
complete evidence is formally entered.[9]
We are fully aware that there is no hard-and-fast rule on the quantum of evidence needed to
prove due observance of all the diligence of a good father of a family as would constitute a valid
defense to the legal presumption of negligence on the part of an employer or master whose
employee has by his negligence, caused damage to another.

In the selection of prospective employees, employers are required to examine them as to their
qualifications, experience, and service records.[13] On the other hand, with respect to the
supervision of employees, employers should formulate standard operating procedures, monitor
their implementation, and impose disciplinary measures for breaches thereof. To establish these
factors in a trial involving the issue of vicarious liability, employers must submit concrete proof,
including documentary evidence.

Jurisprudentially, therefore, the employer must not merely present testimonial evidence to prove
that he observed the diligence of a good father of a family in the selection and supervision of his
employee, but he must also support such testimonial evidence with concrete or documentary
evidence. The reason for this is to obviate the biased nature of the employers testimony or that
of his witnesses.

The decision is affirmed with MODIFICATION that petitioner El Buenasenso Sy is ABSOLVED

from any liability adjudged against his co-petitioners in this case.

Costs against petitioners.

SO ORDERED.
G.R. No. 156037 May 28, 2007

10. MERCURY DRUG CORPORATION, Petitioner, vs. SEBASTIAN M. BAKING,

Respondent.

SANDOVAL-GUTIERREZ, J.:

FACTS

On November 25, 1993, Sebastian M. Baking, respondent, went to the clinic of Dr. Cesar Sy for
a medical check-up. On the following day, after undergoing an ECG, blood, and hematology
examinations and urinalysis, Dr. Sy found that respondent’s blood sugar and triglyceride were
above normal levels. Dr. Sy then gave respondent two medical prescriptions – Diamicron for his
blood sugar and Benalize tablets for his triglyceride.

Respondent then proceeded to petitioner Mercury Drug Corporation (Alabang Branch) to buy
the prescribed medicines. However, the saleslady misread the prescription for Diamicron as a
prescription for Dormicum. Thus, what was sold to respondent was Dormicum, a potent sleeping
tablet.

Unaware that what was given to him was the wrong medicine, respondent took one pill of
Dormicum on three consecutive days –November 6, 1993 at 9:00 p.m., November 7 at 6:00
a.m., and November 8 at 7:30 a.m.

On November 8 or on the third day he took the medicine, respondent figured in a vehicular
accident. The car he was driving collided with the car of one Josie Peralta. Respondent fell
asleep while driving. He could not remember anything about the collision nor felt its impact.

Suspecting that the tablet he took may have a bearing on his physical and mental state at the
time of the collision, respondent returned to Dr. Sy’s clinic. Upon being shown the medicine, Dr.
Sy was shocked to find that what was sold to respondent was Dormicum, instead of the
prescribed Diamicron.

Thus, on April 14, 1994, respondent filed with the Regional Trial Court (RTC), Branch 80 of
Quezon City a complaint for damages against petitioner, docketed as Civil Case No. Q-94-
20193.

After hearing, the trial court rendered its Decision dated March 18, 1997 in favor of respondent,
thus:
WHEREFORE, premises considered, by preponderance of evidence, the Court hereby renders
judgment in favor of the plaintiff and against the defendant ordering the latter to pay damages
as follows: 1. ₱250,000.00 as moral damages;

On appeal, the Court of Appeals, in its Decision, affirmed in toto the RTC judgment. Petitioner
filed a motion for reconsideration but it was denied in a Resolution dated November 5, 2002.

Issue

1. Whether petitioner was negligent, and if so, whether such negligence was the proximate
cause of respondent’s accident;

Ruling

Yes petitioner was negligent.

To sustain a claim based on the above provision, the following requisites must concur: (a)
damage suffered by the plaintiff; (b) fault or negligence of the defendant; and, (c) connection of
cause and effect between the fault or negligence of the defendant and the damage incurred by
the plaintiff.3

It is generally recognized that the drugstore business is imbued with public interest. The health
and safety of the people will be put into jeopardy if drugstore employees will not exercise the
highest degree of care and diligence in selling medicines. Inasmuch as the matter of negligence
is a question of fact, we defer to the findings of the trial court affirmed by the Court of Appeals.

Obviously, petitioner’s employee was grossly negligent in selling to respondent Dormicum,

instead of the prescribed Diamicron. Considering that a fatal mistake could be a matter of life
and death for a buying patient, the said employee should have been very cautious in dispensing
medicines. She should have verified whether the medicine she gave respondent was indeed the
one prescribed by his physician. The care required must be commensurate with the danger
involved, and the skill employed must correspond with the superior knowledge of the business
which the law demands.
Proximate cause is defined as any cause that produces injury in a natural and continuous
sequence, unbroken by any efficient intervening cause, such that the result would not have
occurred otherwise. Proximate cause is determined from the facts of each case, upon a
combined consideration of logic, common sense, policy, and precedent.

Here, the vehicular accident could not have occurred had petitioner’s employee been careful in
reading Dr. Sy’s prescription. Without the potent effects of Dormicum, a sleeping tablet, it was
unlikely that respondent would fall asleep while driving his car, resulting in a collision.

Complementing Article 2176 is Article 2180 of the same Code which states:

ART. 2180. The obligation imposed by Article 2176 is demandable not only for one’s own acts
or omissions, but also for those of persons for whom one is responsible.

xxx

The owners and managers of an establishment or enterprise are likewise responsible for
damages caused by their employees in the service of the branches in which the latter are
employed or on the occasion of their functions.

Employers shall be liable for the damages caused by their employees and household helpers
acting within the scope of their assigned tasks, even though the former are not engaged in any
business or industry.

xxx

The responsibility treated of in this article shall cease when the persons herein mentioned prove
that they observed the diligence of a good father of a family to prevent damage.

It is thus clear that the employer of a negligent employee is liable for the damages caused by
the latter. When an injury is caused by the negligence of an employee, there instantly arises a
presumption of the law that there has been negligence on the part of the employer, either in the
selection of his employee or in the supervision over him, after such selection. The presumption,
however, may be rebutted by a clear showing on the part of the employer that he has exercised
the care and diligence of a good father of a family in the selection and supervision of his
employee.6 Here, petitioner's failure to prove that it exercised the due diligence of a good father
of a family in the selection and supervision of its employee will make it solidarily liable for
damages caused by the latter.

WHEREFORE, we DENY the petition and AFFIRM with modification in the sense that (a) the
award of moral damages to respondent is reduced from ₱250,000.00 to ₱50,000.00; (b)
petitioner is likewise ordered to pay said respondent exemplary damages in the amount of
₱25,000.00; and (c) the award of attorney’s fees and litigation expenses is deleted.
11. MERCURY DRUG CORPORATION and AURMELA GANZON, petitioners, vs. RAUL DE
LEON, respondents.

Facts: Respondent Raul T. De Leon was the presiding judge of Regional Trial Court (RTC) in
Parañaque.4 He noticed that his left eye was reddish. De Leon consulted Dr. Milla about his
irritated left eye.7 The latter prescribed the drugs "Cortisporin Opthalmic" and "Ceftin" to relieve
his eye problems. De Leon went to Mercury Drug Store to buy the prescribed medicines.9 He
showed his prescription to petitioner Aurmela Ganzon, a pharmacist assistant.

At his chambers, De Leon requested his sheriff to assist him in using the eye drops.12 As
instructed, the sheriff applied 2-3 drops on respondent’s left eye.13 Instead of relieving his
irritation, respondent felt searing pain.14 He immediately rinsed the affected eye with water, but
the pain did not subside.15 Only then did he discover that he was given the wrong medicine,
"Cortisporin Otic Solution."

De Leon returned to the same Mercury Drug branch, with his left eye still red and teary. Ganzon
replied that she was unable to fully read the prescription.

De Leon filed a complaint for damages against Mercury Drug. Mercury Drug denied that it was
negligent and therefore liable for damages.26 It pointed out that the proximate cause of De
Leon’s unfortunate experience was his own negligence.27 He should have first read and
checked to see if he had the right eye solution before he used any on his eye. Also, Mercury
Drug explained that there is no available medicine known as "Cortisporin Opthalmic" in the
Philippine market.3 Accordingly, Ganzon gave him the only available "Cortisporin Solution" in
the market.

RTC rendered judgment in favor of respondent. CA affirmed RTC.

Issue: Whether the petitioners are liable

Ruling: Yes. This Court once more reiterated that the profession of pharmacy demands great
care and skill. It reminded druggists to exercise the highest degree of care known to practical
men.

In cases where an injury is caused by the negligence of an employee, there instantly arises a
presumption of law that there has been negligence on the part of the employer, either in the
selection or supervision of one’s employees. This presumption may be rebutted by a clear
showing that the employer has exercised the care and diligence of a good father of the family.90
Mercury Drug failed to overcome such presumption.91

As a buyer, De Leon relied on the expertise and experience of Mercury Drug and its employees
in dispensing to him the right medicine.92 This Court has ruled that in the purchase and sale of
drugs, the buyer and seller do not stand at arms length.93 There exists an imperative duty on
the seller or the druggist to take precaution to prevent death or injury to any person who relies
on one’s absolute honesty and peculiar learning.94 The Court emphasized:
x x x The nature of drugs is such that examination would not avail the purchaser anything. It
would be idle mockery for the customer to make an examination of a compound of which he can
know nothing. Consequently, it must be that the druggist warrants that he will deliver the drug
called for.95

Mercury Drug and Ganzon’s defense that the latter gave the only available Cortisporin solution
in the market deserves scant consideration. Ganzon could have easily verified whether the
medicine she gave De Leon was, indeed, the prescribed one or, at the very least, consulted her
supervisor. Absent the required certainty in the dispensation of the medicine, she could have
refused De Leon’s purchase of the drug.

12. THE HEIRS OF REDENTOR COMPLETO and ELPIDIO ABIAD, Petitioners, vs. SGT.
AMANDO C. ALBAYDA, JR., Respondent.

Facts: Respondent Amando C. Albayda, Jr. (Albayda) is a Master Sergeant of the Philippine Air
Force. Petitioner Redentor Completo (Completo), was the taxi driver of a Toyota Corolla, owned
and operated by co-petitioner Elpidio Abiad (Abiad).3 Albayda and Completo figured in an
accident along the intersection of 8th and 11th Streets, VAB. Albayda filed a complaint for
damages before the Regional Trial Court (RTC) of Pasay City. It was alleged that Albayda was
on his way to the office to report for duty, riding a bicycle along 11th Street, the taxi driven by
Completo bumped and sideswiped him, causing serious physical injuries. Albayda alleged that
the proximate cause of the incident was the negligence of Completo who, at the time of the
accident, was over-speeding.

Completo alleged that he was carefully driving the taxicab along 8th Street, VAB, when
suddenly he heard a strange sound from the rear right side of the taxicab. When he stopped to
investigate, he found Albayda lying on the road and holding his left leg. The accident and the
physical injuries suffered by Albayda were caused by his own negligence.

The RTC rendered judgment in favor of Albayda and against Completo and Abiad, the
employer. The CA affirmed the RTC.

Issue: Whether Abiad, as the employer of Completo is liable.

Ruling: Yes. Abiad, as the employer, is liable. It was proven by a preponderance of evidence
that Completo failed to exercise reasonable diligence in driving the taxicab because he was
over-speeding at the time he hit the bicycle ridden by Albayda. Such negligence was the sole
and proximate cause of the serious physical injuries sustained by Albayda. Completo did not
slow down even when he approached the intersection of 8th and 11th Streets of VAB. It was
also proven that Albayda had the right of way, considering that he reached the intersection
ahead of Completo.

Under Article 2180 of the Civil Code, the obligation imposed by Article 2176 is demandable not
only for one’s own acts or omissions, but also for those persons for whom one is responsible.
Employers shall be liable for the damages caused by their employees, but the employers’
responsibility shall cease upon proof that they observed all the diligence of a good father of the
family in the selection and supervision of their employees.

When an injury is caused by the negligence of an employee, a legal presumption instantly

arises that the employer was negligent. This presumption may be rebutted only by a clear
showing on the part of the employer that he exercised the diligence of a good father of a family
in the selection and supervision of his employee.

The trial court’s finding that Completo failed to exercise reasonable care to avoid collision with
Albayda at the intersection of 11th and 8th Streets of VAB gives rise to liability on the part of
Completo, as driver, and his employer Abiad. The responsibility of two or more persons who are
liable for quasi-delict is solidary.47 The civil liability of the employer for the negligent acts of his
employee is also primary and direct, owing to his own negligence in selecting and supervising
his employee.48 The civil liability of the employer attaches even if the employer is not inside the
vehicle at the time of the collision.49

In the selection of prospective employees, employers are required to examine them as to their
qualifications, experience, and service records. On the other hand, with respect to the
supervision of employees, employers should formulate standard operating procedures, monitor
their implementation, and impose disciplinary measures for breaches thereof. To establish these
factors in a trial involving the issue of vicarious liability, employers must submit concrete proof,
including documentary evidence.50

Abiad testified that before he hired Completo, he required the latter to show his bio-data, NBI
clearance, and driver’s license. Abiad likewise stressed that Completo was never involved in a
vehicular accident prior to the instant case, and that, as operator of the taxicab, he would wake
up early to personally check the condition of the vehicle before it is used.

The protestation of Abiad to escape liability is short of the diligence required under the law.
Abiad’s evidence consisted entirely of testimonial evidence, and the unsubstantiated and self-
serving testimony of Abiad was insufficient to overcome the legal presumption that he was
negligent in the selection and supervision of his driver.
13. G.R. No. L-9331 July 31, 1957

JOSE A. ORTALIZ, plaintiff-appellant,

vs.

CORADO ECHARRI, defendant-appelee.

Facts: The plaintiff is the lawful father of the child, Winston Ortaliz. On December 18, 1953, at
the corner of Washington and Justicia Streets, Bacolod City, the Studebaker Sedan Car of
Echarri (herein defendant) struck the plaintiff's son, Winston Ortaliz, causing upon him physical
injuries as a result of which he was taken to the Occidental Negros Provincial Hospital.

The said car was, at the time of the accident, driven and controlled by Segundino Estanda, a
driver under the employ of the Echarri, without due care and diligence and with negligence and
recklessness and violation of traffic rules and regulations.

An information was filed in the Municipal Court against the said Segundino Estanda for the
crime of Slight Physical Inuries Through Reckless Imprudence. Segundino Estanda pleaded
guilty to the crime charge in the Information and he was finally sentenced to suffer the penalty of
five (5) days of Arresto Menor and to pay the costs in a Decision.

Ortaliz subsequently sued Echarri as the employer of Estanda before the CFI Negros
Occidental for actual, consequential and moral damages plus attorney's fees.

The plaintiff alleged that he has suffered damages in the form of expenses paid for the
hospitalization, medicines, physicians' fees and incidental expense of his son, Winston Ortaliz,
in the amount of P446.58. Likewise the plaintiff, by reason of the accident met by his said son,
has also suffered, because of the mental anguish, fright, serious anxiety, wounded feelings and
moral shock, moral damages in the amount of TWO THOUSAND PESOS (P2,000). Demands
have been made on the defendant to pay the plaintiff the sum of P2,446.55 for actual,
consequential and moral damages, but the defendants refused and still refuses to pay the same
and that by reason of the refusal of the defendant, the plaintiff was forced to secure the services
of an attorney paying the latter the sum of P500.

The defendant contended that the complaint does not allege that defendant was nor is engaged
in any business or industry in conjunction with which he has at any time used the said car, much
less on the occasion of the alleged accident, nor the defendant had at any time put out the said
car for hire. That under Article 103 of the Revised Penal Code, it is essential, in order for an
employer to be liable subsidiarily for felonies committed by his employee, that the former be
engaged in some kind of industry, and that the employer had committed the crime in the
discharge of his duties in connection with such industry.

The Court of First Instance of Negros Occidental dismissed the case on the ground that the
complaint does not state a cause of action.
Issue: Whether or not the employer (defendant) is liable even though he is not engaged in any
business or industry. YES

Held: Having in view the aforequoted provisions of law and those of Article 2176 to the effect
that "Whoever by act or omission causes damage to another, there being fault or negligence, is
obliged to pay for the damage done", there seems to be good reason to support plaintiff's
contention that the complaint in question states sufficient cause of action.

Defendant-appellee, however, claims that there is no allegation in the complaint that "the
defendant was engaged in some kind of industry and that the employee had committed the
crime in the discharge of his duties in connection with such industry," hence the defendant
cannot be held subsidiarily liable for the crime committed by his driver and therefore the
complaint failed to state facts sufficient to constitute a cause of action. But paragraph 5 of Article
2180 refutes this contention for it clearly provides that "Employers shall be liable for the
damages caused by their employees acting within the scope of their assigned tasks, even
though the former are not engaged in any business or industry."

Defendant-appellee also contends that when the judgment in Criminal Case No. 2607 of the
Municipal Court of Bacolod was rendered against the driver Segundino Estanda, plaintiff did not
reserve the civil action and thus he lost his right thereto and consequently the present action
against the defendant-appellee would not lie. This contention, however, is untenable, for Article
33 of the Civil Code clearly provides:

ART. 33. In cases of physical injuries, a civil action for damages, entirely separate and distinct
from the criminal action, may be brought by the injured party. Such civil action shall proceed
independently of the criminal prosecution, and shall require only a preponderance of evidence.

WHEREFORE, the order of dismissal entered by the lower court is hereby revoked and the
case remanded to said court for further proceedings.
14. G.R. No. L-7664 August 29, 1958

MR. AND MRS. AMADOR C. ONG, plaintiffs-appellants,

vs.

METROPOLITAN WATER DISTRICT, defendant-appellee.

Facts:Defendant owns and operates three recreational swimming pools at its Balara filters,
Diliman, Quezon City, to which people are invited and for which a nominal fee of P0.50 for
adults and P0.20 for children is charged.

Dominador Ong, a 14-year old and his brothers Ruben and Eusebio, went to defendant's
swimming pools. After paying the requisite admission fee, they immediately went to one of the
small pools where the water was shallow. Dominador Ong told his brothers that he was going to
the locker room in an adjoining building to drink a bottle of coke. Upon hearing this, Ruben and
Eusebio went to the bigger pool leaving Dominador in the small pool and so they did not see the
latter when he left the pool to get a bottle of coke.

Later on, some boys who were in the pool area informed a bather by the name of Andres
Hagad, Jr., that somebody was swimming under water for quite a long time. Another boy
informed lifeguard Manuel Abaño of the same happening and Abaño immediately jumped into
the big swimming pool and retrieved the apparently lifeless body of Dominador Ong from the
bottom. The death was due to asphyxia by submersion in water.

Plaintiffs spouses seek to recover from defendant, a government-owned corporation, the sum of
P50,000 as damages, P5,000 as funeral expenses, and P11,000 as attorneys' fees, for the
death of their son Dominador Ong in one of the swimming pools operated by defendant.

Defendant admits the fact that plaintiffs' son was drowned in one of its swimming pools but
avers that his death was caused by his own negligence or by unavoidable accident. Defendant
also avers that it had exercised due diligence in the selection of, and supervision over, its
employees and that it had observed the diligence required by law under the circumstances.
After trial, the lower court found that the action of plaintiffs is untenable and dismissed the
complaint.

Issue:

1. Whether the death of minor Dominador Ong can be attributed to the negligence of defendant
and/or its employees so as to entitle plaintiffs to recover damages. NO

2. Whether or not the defendant is liable under the doctrine of "last clear chance". NO

Held:

1. There is a sufficient evidence to show that appellee has taken all necessary precautions to
avoid danger to the lives of its patrons or prevent accident which may cause their death. Thus, it
has been shown that the swimming pools of appellee are provided with a ring buoy, toy roof,
towing line, oxygen resuscitator and a first aid medicine kit. The bottom of the pools is painted
with black colors so as to insure clear visibility. There is on display in a conspicuous place within
the area certain rules and regulations governing the use of the pools. Appellee employs six
lifeguards who are all trained as they had taken a course for that purpose and were issued
certificates of proficiency. These lifeguards work on schedule prepared by their chief and
arranged in such a way as to have two guards at a time on duty to look after the safety of the
bathers. There is a male nurse and a sanitary inspector with a clinic provided with oxygen
resuscitator. And there are security guards who are available always in case of emergency.

The record also shows that when the body of minor Ong was retrieved from the bottom of the
pool, the employees of appellee did everything possible to bring him back to life. Thus, after he
was placed at the edge of the pool, lifeguard Abaño immediately gave him manual artificial
respiration. Soon thereafter, nurse Armando Rule arrived, followed by sanitary inspector
Iluminado Vicente who brought with him an oxygen resuscitator. When they found that the pulse
of the boy was abnormal, the inspector immediately injected him with camphorated oil. When
the manual artificial respiration proved ineffective they applied the oxygen resuscitator until its
contents were exhausted. And while all these efforts were being made, they sent for Dr. Ayuyao
from the University of the Philippines who however came late because upon examining the body
he found him to be already dead. All of the foregoing shows that appellee has done what is
humanly possible under the circumstances to restore life to minor Ong and for that reason it is
unfair to hold it liable for his death.
2. Appellants now switch to the theory that even if it be assumed that the deceased is partly to
be blamed for the unfortunate incident, still appellee may be held liable under the doctrine of
"last clear chance" for the reason that, having the last opportunity to save the victim, it failed to
do so.

We do not see how this doctrine may apply considering that the record does not show how
minor Ong came into the big swimming pool. The only thing the record discloses is that minor
Ong informed his elder brothers that he was going to the locker room to drink a bottle of coke
but that from that time on nobody knew what happened to him until his lifeless body was
retrieved. The doctrine of last clear chance simply means that the negligence of a claimant does
not preclude a recovery for the negligence of defendant where it appears that the latter, by
exercising reasonable care and prudence, might have avoided injurious consequences to
claimant notwithstanding his negligence. Or, "As the doctrine usually is stated, a person who
has the last clear chance or opportunity of avoiding an accident, notwithstanding the negligent
acts of his opponent or the negligence of a third person which is imputed to his opponent, is
considered in law solely responsible for the consequences of the accident."

Since it is not known how minor Ong came into the big swimming pool and it being apparent
that he went there without any companion in violation of one of the regulations of appellee as
regards the use of the pools, and it appearing that lifeguard Abaño responded to the call for help
as soon as his attention was called to it and immediately after retrieving the body all efforts at
the disposal of appellee had been put into play in order to bring him back to life, it is clear that
there is no room for the application of the doctrine now invoked by appellants to impute liability
to appellee.

G.R. No. L-22533 February 9, 1967

15. PLACIDO C. RAMOS and AUGUSTO L. RAMOS, petitioners,

vs.

PEPSI-COLA BOTTLING CO. OF THE P.I. and ANDRES BONIFACIO, respondents.

Facts: Placido and Augusto Ramos sued Pepsi-Cola Bottling Co. of the P.I. and Andres
Bonifacio in the CFI of Manila as a consequence of a collision, involving the car of Placido
Ramos and a tractor-truck and trailer of PEPESI-COLA. Said car was at the time of the collision
driven by Augusto Ramos, son and co-plaintiff of Placido. PEPSI-COLA's tractor-truck was then
driven by its driver and co-defendant Andres Bonifacio.

After trial the CFI rendered judgment finding Bonifacio negligent and declaring that PEPSI-
COLA had not sufficiently proved its having exercised the due diligence of a good father of a
family to prevent the damage. PEPSI-COLA and Bonifacio, solidarily, were ordered to pay the
plaintiffs.
Not satisfied with this decision, the defendants appeal to the CA which affirmed the trial court's
judgment insofar as it found defendant Bonifacio negligent, but modified it by absolving
defendant PEPSI-COLA from liability, finding that, contrary to the plaintiffs' contention, PEPSI-
COLA sufficiently proved due diligence in the selection of its driver Bonifacio. In its decision, CA
stated the basis for its decision:

“The uncontradicted testimony of Juan T. Anasco, personnel manager of defendant company,

was to the effect that defendant driver was first hired as a member of the bottle crop in the
production department; that when he was hired as a driver, 'we had size [sic] him by looking into
his background, asking him to submit clearances, previous experience, physical examination
and later on, he was sent to the pool house to take the usual driver's examination, consisting of:
First, theoretical examination and second, the practical driving examination, all of which he had
undergone, and that the defendant company was a member of the Safety Council. In view
hereof, we are of the sense that defendant company had exercised the diligence of a good
father of a family in the choice or selection of defendant driver'. In the case of Campo vs.
Camarote No. L-9147 (1956), 53 O.G. 2794, cited in appellee's brief, our Supreme Court had
occasion to put it down as a rule that "In order that the defendant may be considered as having
exercised all the diligence of a good father of a family, he should not have been satisfied with
the mere possession of a professional driver's license; he should have carefully examined the
applicant for employment as to his qualifications, his experiences and record of service."
Defendant Company has taken all these steps.”

Issue: WON Pepsi-cola exercised due diligence in the selection of its employee

Held:

YES. For the purposes of this appeal, it must be taken as established that, as testified to by
Añasco, PEPSI-COLA did in fact carefully examine the driver-applicant Bonifacio as to his
qualifications, experiences and record of service, taking all steps mentioned by the Court of
Appeals in its decision already quoted.1äwphï1.ñët

Such being the case, there can be no doubt that PEPSI-COLA exercised the required due
diligence in the selection of its driver. As ruled by this Court in Campo vs. Camarote 53 O.G.
2794, 2797: "In order that the defendant may be considered as having exercised all diligence of
a good father of a family, he should not be satisfied with the mere possession of a professional
driver's license; he should have carefully examined the applicant for employment as to his
qualifications, his experience and record of service."

It should perhaps be stated that in the instant case no question is raised as to due diligence in
the supervision by PEPSI-COLA of its driver. Article 2180 of the Civil Code provides inter alia:

... The owners and managers of an establishment or enterprise are likewise responsible for
damages caused by their employees in the service of the branches in which the latter are
employed or on the occasion of their functions.

xxx xxx xxx

The responsibility treated of in this Article shall cease when the persons herein mentioned prove
that they observed all the diligence of a good father of a family to prevent damage.

As pointed out, what appellants here contend as not duly proved by PEPSI-COLA is only due
diligence in the selection of its driver. And, parenthetically, it is not surprising that appellants
thus confine their arguments to this aspect of due diligence, since the record — as even
appellants' brief (pp. 13-17) reflects in quoting in part the testimony of PEPSI-COLA's witness —
would show sufficient evidence to establish due diligence in the supervision by PEPSI-COLA of
its drivers, including Bonifacio.

G.R. No. 75112 August 17, 1992

16. FILAMER CHRISTIAN INSTITUTE, petitioner,

vs.

HON. INTERMEDIATE APPELLATE COURT, HON. ENRIQUE P. SUPLICO, in his capacity

as Judge of the Regional Trial Court, Branch XIV, Roxas City and POTENCIANO
KAPUNAN, SR., respondents.

Facts:

Funtecha was a working student, being a part-time janitor and a scholar of petitioner Filamer.
He was, in relation to the school, an employee even if he was assigned to clean the school
premises for only 2 hours in the morning of each school day.

Having a student driver's license, Funtecha requested the driver, Allan Masa, and was allowed,
to take over the vehicle while the latter was on his way home one late afternoon. It is significant
to note that the place where Allan lives is also the house of his father, the school president,
Agustin Masa. Moreover, it is also the house where Funtecha was allowed free board while he
was a student of Filamer Christian Institute.

While Funtecha was driving, he accidentally hit an elderly Kapunan which led to his
hospitalization for 20 days. He thus instituted a criminal case against Funtecha alone, who was
convicted for serious physical injuries through reckless imprudence. Thereafter, pursuant to his
reservation, Kapunan instituted a civil case for damages against Funtecha and Filamer and its
president.

In the independent civil action, the lower court ruled that Filamer is subsidiarily liable for the
tortious act of Funcheta and was compelled to pay for damages based on Article 2180 which
provides that employers shall be liable for the damages caused by their employees and
household helpers acting within the scope of their assigned tasks. Filamer assailed the decision
and it argued that under Section 14, Rule X, Book III of the Labor Code IRR, working scholars
are excluded from the employment coverage hence there is no employer-employee relations
between Filamer and Funcheta; that the negligent act of Funcheta was due to negligence only
attributable to him alone as it is outside his assigned task of being the school janitor. The CA
denied Filamer’s appeal. Hence, this petition.

Issue: WON FILAMER should be held subsidiarily liable

Held:

YES. The provisions of Section 14, Rule X, Book III of the Labor Code IRR was only meant to
provide guidelines as compliance with labor provisions on working conditions, rest periods, and
wages is concerned. This does not in any way affect the provisions of any other laws like the
civil code. The IRR cannot defeat the provisions of the Civil Code. In other words, Rule X is
merely a guide to the enforcement of the substantive law on labor. There is a distinction hence
Section 14, Rule X, Book III of the Rules is not the decisive law in a civil suit for damages
instituted by an injured person during a vehicular accident against a working student of a school
and against the school itself.

The present case does not deal with a labor dispute on conditions of employment between an
alleged employee and an alleged employer. It invokes a claim brought by one for damages for
injury caused by the patently negligent acts of a person, against both doer-employee and his
employer. Hence, the reliance on the implementing rule on labor to disregard the primary liability
of an employer under Article 2180 of the Civil Code is misplaced. An implementing rule on labor
cannot be used by an employer as a shield to void liability under the substantive provisions of
the Civil Code.

Funtecha is an employee of Filamer. He need not have an official appointment for a driver’s
position in order that Filamer may be held responsible for his grossly negligent act, it being
sufficient that the act of driving at the time of the incident was for the benefit of Filamer (the act
of driving the jeep from the school to Masa’s house is beneficial to the school because this
enables Masa to do a timely school transportation service in the morning). Hence, the fact that
Funtecha was not the school driver or was not acting with the scope of his janitorial duties does
not relieve Filamer of the burden of rebutting the presumption juris tantum that there was
negligence on its part either in the selection of a servant or employee, or in the supervision over
him. Filamer has failed to show proof of its having exercised the required diligence of a good
father of a family over its employees Funtecha and Allan.
17. CHILD LEARNING CENTER, INC. G.R. No. 150920and SPOUSES EDGARDO L. LIMONand
SYLVIA S. LIMON, Petitioners,- versus - TIMOTHY TAGARIO, assisted byhis parents BASILIO
TAGORIO and Promulgated: HERMINIA TAGORIO,

FACTS: Timothy was a Grade IV student at Marymount School. In the afternoon of

March 5, 1991, between 1 and 2 p.m., Timothy entered the boys comfort room at the
third floor of the Marymount building to answer the call of nature. He, however, found
himself locked inside and unable to get out. Timothy started to panic and so he
banged and kicked the door and yelled several times for help. When no help arrived
he decided to open the window to call for help. In the process of opening the window,
Timothy went right through and fell down three stories. Timothy was hospitalized and
given medical treatment for serious multiple physical injuries.

An action under Article 2176 of the Civil Code was filed by respondents against the
CLC, the members of its Board of Directors, namely Spouses Edgardo and Sylvia Limon,
Alfonso Cruz, Carmelo Narciso and Luningning Salvador, and the Administrative Officer
of Marymount School, Ricardo Pilao.

In its defense,[2] CLC maintained that there was nothing defective about the locking
mechanism of the door and that the fall of Timothy was not due to its fault or
negligence. CLC further maintained that it had exercised the due care and diligence
of a good father of a family in the selection and supervision of its employees to ensure
the safety, well-being and convenience of its students.

ISSUE: W/N SCHOOL IS LIABLE FOR THE ACCIDENTAL FALL OF THE BOY?

W/N petitioner Child Learning Center, Inc. failed to exercise the due care of a
good father of a family in the selection and supervision of its employees;

1. Yes. Liable.

In every tort case filed under Article 2176 of the Civil Code, plaintiff has to prove by a
preponderance of evidence: (1) the damages suffered by the plaintiff; (2) the fault or
negligence of the defendant or some other person for whose act he must respond; and
(3) the connection of cause and effect between the fault or negligence and the
damages incurred
Fault, in general, signifies a voluntary act or omission which causes damage to the right
of another giving rise to an obligation on the part of the actor to repair such damage.

Negligence is the failure to observe for the protection of the interest of another person
that degree of care, precaution and vigilance which the circumstances justly demand.
Fault requires the execution of a positive act which causes damage to another while
negligence consists of the omission to do acts which result in damage to another

The fact, however, that Timothy fell out through the window shows that the door could
not be opened from the inside. That sufficiently points to the fact that something was
wrong with the door, if not the door knob, under the principle of res ipsa loquitor. The
doctrine of res ipsa loquitor applies where (1) the accident was of such character as to
warrant an inference that it would not have happened except for the defendants
negligence; (2) the accident must have been caused by an agency or instrumentality
within the exclusive management or control of the person charged with the negligence
complained of; and (3) the accident must not have been due to any voluntary action
or contribution on the part of the person injured.

Here, Petitioners are clearly answerable for failure to see to it that the doors of their
school toilets are at all times in working condition. The fact that a student had to go
through the window, instead of the door, shows that something was wrong with the
door.

As to the absence of grills on the window, petitioners contend that there was no such
requirement under the Building Code. Nevertheless, the fact is that such window, as
petitioners themselves point out, was approximately 1.5 meters from the floor, so that it
was within reach of a student who finds the regular exit, the door, not functioning.
Petitioners, with the due diligence of a good father of the family, should have
anticipated that a student, locked in the toilet by a non-working door, would attempt
to use the window to call for help or even to get out. Considering all the circumstances,
therefore, there is sufficient basis to sustain a finding of liability on petitioners part.

2. No, the Petitioner did not exercise such

Due diligence in the selection and supervision of employees is applicable where the
employer is being held responsible for the acts or omissions of others under Article 2180
of the Civil Code.[12]

In this case, CLCs liability is under Article 2176 of the Civil Code, premised on the fact of
its own negligence in not ensuring that all its doors are properly maintained.

Our pronouncement that Timothy climbed out of the window because he could not
get out using the door, negates petitioners other contention that the proximate cause
of the accident was Timothys own negligence. The injuries he sustained from the fall
were the product of a natural and continuous sequence, unbroken by any intervening
cause, that originated from CLCs own negligenc

18. MERCURY DRUG VS HUANG

FACTS: Petitioner Mercury Drug Corporation (Mercury Drug) is the registered owner of a
six-wheeler 1990 Mitsubishi Truck. It has in its employ petitioner Rolando J. del Rosario as
driver. Respondent spouses Richard and Carmen Huang are the parents of respondent
Stephen Huang and own the red 1991 Toyota Corolla GLI Sedan

These two vehicles figured in a road accident on December 20, 1996 at around 10:30
p.m. within the municipality of Taguig, Metro Manila. Both were traversing the C-5
Highway, north bound, coming from the general direction of Alabang going to Pasig
City. The car was on the left innermost lane while the truck was on the next lane to its
right, when the truck suddenly swerved to its left and slammed into the front right side of
the car. The collision hurled the car over the island where it hit a lamppost, spun around
and landed on the opposite lane. The truck also hit a lamppost, ran over the car and
zigzagged towards, and finally stopped in front of Buellah Land Church

At the time of the accident, petitioner Del Rosario only had a Traffic Violation Receipt
(TVR). His drivers license had been confiscated because he had been previously
apprehended for reckless driving. The car, valued at P300,000.00, was a total wreck.
Respondent Stephen Huang sustained massive injuries to his spinal cord, head, face,
and lung. Despite a series of operations, respondent Stephen Huang is paralyzed for life
from his chest down and requires continuous medical and rehabilitation treatment.

Respondents fault petitioner Del Rosario for committing gross negligence and reckless
imprudence while driving, and petitioner Mercury Drug for failing to exercise the
diligence of a good father of a family in the selection and supervision of its driver

In contrast, petitioners allege that the immediate and proximate cause of the accident
was respondent Stephen Huangs recklessness. According to petitioner Del Rosario, he
was driving on the left innermost lane when the car bumped the trucks front right tire.
The truck then swerved to the left, smashed into an electric post, crossed the center
island, and stopped on the other side of the highway. The car likewise crossed over the
center island and landed on the same portion of C-5. Further, petitioner Mercury Drug
claims that it exercised due diligence of a good father of a family in the selection and
supervision of all its employees.

ISSUE: W/N MERCURY DRUG CORPORATION IS LIABLE AS IT FAILED TO EXERCISE THE

DILIGENCE REQUIRED IN SUPERVISING ITS EMPLOYEES?

Held: YES. Articles 2176 and 2180 of the Civil Code provide: Art. 2176. Whoever by act or
omission causes damage to another, there being fault or negligence, is obliged to pay
for the damage done. Such fault or negligence, if there is no pre-existing contractual
relation between the parties, is called a quasi-delict and is governed by the provisions
of this Chapter.

Art. 2180. The obligation imposed by article 2176 is demandable not only for ones own
acts or omissions, but also for those of persons for whom one is responsible.

The owners and managers of an establishment or enterprise are likewise responsible for
damages caused by their employees in the service of the branches in which the latter
are employed or on the occasion of their functions.

The liability of the employer under Art. 2180 of the Civil Code is direct or immediate. It is
not conditioned on a prior recourse against the negligent employee, or a prior showing
of insolvency of such employee. It is also joint and solidary with the employee.To be
relieved of liability, petitioner Mercury Drug should show that it exercised the diligence
of a good father of a family, both in the selection of the employee and in the
supervision of the performance of his duties.

Thus, in the selection of its prospective employees, the employer is required to examine
them as to their qualifications, experience, and service records.[12]

With respect to the supervision of its employees, the employer should formulate
standard operating procedures, monitor their implementation, and impose disciplinary
measures for their breach. To establish compliance with these requirements, employers
must submit concrete proof, including documentary evidence.[13]

In the instant case, petitioner Mercury Drug presented testimonial evidence on its hiring
procedure. According to Mrs. Merlie Caamic, the Recruitment and Training Manager of
petitioner Mercury Drug, applicants are required to take theoretical and actual driving
tests, and psychological examination. In the case of petitioner Del Rosario, however,
Mrs. Caamic admitted that he took the driving tests and psychological examination
when he applied for the position of Delivery Man, but not when he applied for the
position of Truck Man. It was admitted that the petitioner Del Rosario used a Galant
which is a light vehicle, instead of a truck during the driving tests. Further, no tests were
conducted on the motor skills development, perceptual speed, visual attention, depth
visualization, eye and hand coordination and steadiness of petitioner Del Rosario. No
NBI and police clearances were also presented. Lastly, petitioner Del Rosario attended
only three driving seminars on June 30, 2001, February 5, 2000 and July 7, 1984. In effect,
the only seminar he attended before the accident which occurred in 1996 was held
twelve years ago in 1984.

It also appears that petitioner Mercury Drug does not provide for a back-up driver for
long trips. At the time of the accident, petitioner Del Rosario has been out on the road
for more than thirteen hours, without any alternate.

Petitioner Mercury Drug likewise failed to show that it exercised due diligence on the
supervision and discipline over its employees. In fact, on the day of the accident,
petitioner Del Rosario was driving without a license. He was holding a TVR for reckless
driving. He testified that he reported the incident to his superior, but nothing was done
about it. He was not suspended or reprimanded.[15] No disciplinary action whatsoever
was taken against petitioner Del Rosario. We therefore affirm the finding that petitioner
Mercury Drug has failed to discharge its burden of proving that it exercised due
diligence in the selection and supervision of its employee, petitioner Del Rosario.

19. THE SPOUSES BERNABE AFRICA and SOLEDAD C. AFRICA, and the HEIRS OF DOMINGA
ONG, , vs. CALTEX (PHIL.), INC., MATEO BOQUIREN and THE COURT OF APPEALS,

FACTS: A fire broke out at the Caltex service station at the corner of Antipolo street and
Rizal Avenue, Manila. It started while gasoline was being hosed from a tank truck into
the underground storage, right at the opening of the receiving tank where the nozzle of
the hose was inserted. The fire spread to and burned several neighboring houses,
including the personal properties and effects inside them. Their owners, among them
petitioners here, sued respondents Caltex (Phil.), Inc. and Mateo Boquiren, the first as
alleged owner of the station and the second as its agent in charge of operation.
Negligence on the part of both of them was attributed as the cause of the fire.

The trial court and the Court of Appeals found that petitioners failed to prove
negligence and that respondents had exercised due care in the premises and with
respect to the supervision of their employees.

ISSUE:

1. WHETHER OR NOT THE REPORTS PROVIDED ARE ADMISSIBLE

RULING
The material facts recited in the reports as to the cause and circumstances of the fire
were not within the personal knowledge of the officers who conducted the
investigation. Was knowledge of such facts, however, acquired by them through official
information? As to some facts the sources thereof are not even identified. Others are
attributed to Leopoldo Medina, referred to as an employee at the gas station were the
fire occurred; to Leandro Flores, driver of the tank truck from which gasoline was being
transferred at the time to the underground tank of the station; and to respondent
Mateo Boquiren, who could not, according to Exhibit V-Africa, give any reason as to
the origin of the fire. To qualify their statements as "official information" acquired by the
officers who prepared the reports, the persons who made the statements not only must
have personal knowledge of the facts stated but must have the duty to give such
statements for record.

The reports in question do not constitute an exception to the hearsay rule; the facts
stated therein were not acquired by the reporting officers through official information,
not having been given by the informants pursuant to any duty to do so.

2. WHETHER OR NOT THE APPELLEES ARE PRESUMED NEGLIGENT WITHOUT PROOF AS

TO THE CAUSE AND ORIGIN OF THE FIRE

RULING

The gasoline station, with all its appliances, equipment and employees, was under the
control of appellees. A fire occurred therein and spread to and burned the neighboring
houses. The persons who knew or could have known how the fire started were
appellees and their employees, but they gave no explanation thereof whatsoever. It is
a fair and reasonable inference that the incident happened because of want of care.

Even then the fire possibly would not have spread to the neighboring houses were it not
for another negligent omission on the part of defendants, namely, their failure to
provide a concrete wall high enough to prevent the flames from leaping over it. As it
was the concrete wall was only 2-1/2 meters high, and beyond that height it consisted
merely of galvanized iron sheets, which would predictably crumple and melt when
subjected to intense heat. Defendants' negligence, therefore, was not only with respect
to the cause of the fire but also with respect to the spread thereof to the neighboring
houses.

3. WHETHER OR NOT CALTEX SHOULD BE HELD LIABLE FOR THE DAMAGES

RULING

YES. THIS IS SO SINCE BOQUIREN IS NOT AN INDEPENDENT CONTRACTOR BUT AN

EMPLOYEE OF CALTEX
Caltex admits that it owned the gasoline station as well as the equipment therein, but
claims that the business conducted at the service station in question was owned and
operated by Boquiren. But Caltex did not present any contract with Boquiren that
would reveal the nature of their relationship at the time of the fire. There must have
been one in existence at that time. Instead, what was presented was a license
agreement manifestly tailored for purposes of this case, which was designed precisely
to free Caltex from any responsibility with respect to the fire, as shown by the clause
that Caltex "shall not be liable for any injury to person or property while in the property
herein licensed, it being understood and agreed that LICENSEE (Boquiren) is not an
employee, representative or agent of LICENSOR (Caltex)."

But even if the license agreement were to govern, Boquiren can hardly be considered
an independent contractor. Under that agreement Boquiren would pay Caltex the
purely nominal sum of P1.00 for the use of the premises and all the equipment therein.
He could sell only Caltex Products. Maintenance of the station and its equipment was
subject to the approval, in other words control, of Caltex. Boquiren could not assign or
transfer his rights as licensee without the consent of Caltex. The license agreement was
supposed to be from January 1, 1948 to December 31, 1948, and thereafter until
terminated by Caltex upon two days prior written notice. Caltex could at any time
cancel and terminate the agreement in case Boquiren ceased to sell Caltex products,
or did not conduct the business with due diligence, in the judgment of Caltex.
Termination of the contract was therefore a right granted only to Caltex but not to
Boquiren. These provisions of the contract show the extent of the control of Caltex over
Boquiren. The control was such that the latter was virtually an employee of the former.

Caltex further argues that the gasoline stored in the station belonged to Boquiren. But
no cash invoices were presented to show that Boquiren had bought said gasoline from
Caltex. Neither was there a sales contract to prove the same.

20. VICENTE LAMIS and SANDIGAN PROTECTIVE & INVESTIGATION AGENCY, INC.,
petitioners, vs. DAVID Y. ONG, respondent.

FACTS: Sandigan Protective and Investigation Agency, Inc. (Sandigan), petitioner, was
the security agency providing security services at the Manila Chinese Cemetery. The
visiting hours were at 6:00 a.m. to 6:00 p.m. Sandigan instructed the security guards not
to allow any one to enter the cemetery from 6:00 p.m. to 6:00 a.m.
Vicente Lamis, also a petitioner, was the guard assigned at the south gate of the
cemetery for the 6:00 p.m. to 6:00 a.m. slot. Around 3:00 in the morning, a Mitsubishi
Lancer, with a PSM 679 plate, driven by David Y. Ong, herein respondent, arrived at the
south gate of the cemetery. He beeped his car and continued doing so, but Lamis did
not open the gate. Eventually, he went outside the gate and informed respondent that
being beyond visiting hours, he cannot enter the cemetery. Suddenly, respondent
accelerated the speed of his car, trying to enter the cemetery.. He fired a warning shot
but respondent did not stop his car. Lamis fired another warning shot. Respondent then
alighted from his car. Lamis shot him, hitting his right arm, left hip, and right waist. He
managed to drive to the Chinese General Hospital where he was examined and
treated.

Respondent filed with the Regional Trial Court a complaint for frustrated homicide
against Lamis, and later also filed a complaint for damages against both petitioners.
The RTC ruled that the defendants Vicente Lamis and Sandigan Protective &
Investigation Agency, Inc. are ordered to pay jointly and solidarily damages to the
plaintiff.

On appeal, the Court of Appeals affirmed the RTC’s decision..

ISSUE

1. WHETHER OR NOT PETITIONER SANDIGAN IS LIABLE DESPITE THE FACT THAT

SANDIGAN EXERCISED DUE DILIGENCE IN THE SELECTION AND SUPERVISION OF ITS
SECURITY GUARDS.

RULING

The well-entrenched rule is that questions of fact may not be the subject of an appeal
by certiorari under Rule 45 of the 1997 Rules of Civil Procedure, as amended, as this
recourse is generally confined to questions of law. Under the said Rule, the jurisdiction of
this Court over cases brought to it is limited to the review and rectification of errors of
law committed by the lower court.

Moreover, it is doctrinally settled that where the trial courts factual findings are adopted
and affirmed by the Court of Appeals, as in this case, the same are final and conclusive
and may not be reviewed by this Court. Thus, the Court find no compelling reason to
overturn the factual findings and conclusion of law by the Court of Appeals.

2. WHETHER OR NOT THE PETITIONERS ARE LIABLE FOR DAMAGES

Article 2176 of the Civil Code provides that whoever by an act or omission causes
damage to another, there being fault or negligence, is obliged to pay for the damage
done. x x x. The obligation imposed by this Article is demandable not only for ones own
wrongful acts or omissions, but also for those persons for whom one is responsible. Thus,
petitioner Sandigan, being the employer of petitioner Lamis, is likewise liable for
damages caused by the latter.

As stated earlier, petitioner Sandigan already paid the medical expenses (or actual
damages) incurred by respondent.

21. Hermana R. Cerezo, petitioner, vs. David Tuazon, respondent. [G.R. No. 141538.
March 23, 2004]

FACTS: A Country Bus Lines passenger bus collided with a tricycle in Pampanga. The
driver of the tricycle Tuazon filed a complaint for damages against Mrs. Cerezo, the
owner of the bus lines, her husband, Atty. Cerezo, and bus driver Foronda.

According to the facts alleged in the complaint, Tuazon was driving on the proper lane.
There was a "Slow Down" sign which Foronda ignored.

Subsequently, the trial court issued summons against Atty. Cerezo and Mrs. Cerezo
which was served against the Spouses.

RTC: ruled in Tuazons favor. The trial court made no pronouncement on Forondas
liability because there was no service of summons on him. The trial court did not hold
Atty. Cerezo liable as Tuazon failed to show that Mrs. Cerezos business benefited the
family, pursuant to Article 121(3) of the Family Code. The trial court held Mrs. Cerezo
solely liable for the damages sustained by Tuazon arising from the negligence of Mrs.
Cerezos employee, pursuant to Article 2180 of the Civil Code.

Hence this petition.

Mrs. Cerezo contended that the trial court did not acquire jurisdiction because there
was no service of summons on Foronda which is an indispensable party. Moreover,
Tuazon failed to reserve his right to institute a separate civil action for damages in the
criminal action.

ISSUE: W/N Mrs Cerezo should be held primary liable

HELD: Yes.

Mrs. Cerezo's contention is wrong. Tuazon's case is not based on criminal law but on
quasi-delict under the Civil Code.

The same negligent act may produce civil liability arising from a delict under Art. 103,
RPC, or may give rise to an action for quasi-delict under Art. 2180, C.C. An aggrieved
party may choose between the two remedies. An action based on quasi-delict may
proceed independently from the criminal action. There is, however, a distinction
between civil liability arising from a delict and civil liability arising from a quasi-delict. The
choice of remedy whether to sue for a delict or a quasi-delict, affects the procedural
and jurisdictional issues of the action.

Tuazon's action is based on quasi-delict under Art. 2180: Employer's liability.

Foronda is not an indispensable party, contrary to Mrs. Cerezo's contention. An

indispensable party is one whose interest is affected by the court's action in the
litigation, and without whom no final resolution of the case is possible. However, Mrs.
Cerezo's liability as an employer in action for quasi-delict is not only solidary, it is also
primary and direct.

The responsibility of two or more persons who are liable for a quasi-delict is solidary.
Where there is a solidary liability on the part of the debtors, as in this case, each debtor
is liable for the entire obligation. Hence, each debtor is liable to pay for the entire
obligation in full. There is no merger or renunciation of rights, but only mutual
representation. Where the obligation of the parties is solidary, either of the parties is
indispensable, and the other is not even a necessary party because complete relief is
available from either. Therefore, jurisdiction over Foronda is not even necessary as
Tuazon may collect from Mrs. Cerezo alone.

Moreover, an employer's liability based on a quasi-delict is primary and direct, while the
employer's liability based on a delict is merely subsidiary. The words "primary and direct,"
as contrasted with "subsidiary," refers to the remedy provided by law for enforcing the
obligation rather than to the character and limits of the obligation. Although liability
under Art. 2180 originates from the negligent act of the employee, the aggrieved party
may sue the employer directly. When an employee causes damage, the law presumes
that the employer has himself committed an act of negligence in not preventing or
avoiding the damage. This is the fault that the law condemns. While the employer is
civilly liable in a subsidiary capacity for the employee's criminal negligence, the
employer is also civilly liable directly and separate for his own civil negligence in failing
to exercise due diligence in selecting and supervising his employee. The idea that the
employer's liability is wholly subsidiary is wrong.

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
is not subsidiary in the sense that it cannot be instituted till after the judgment against
the author of the act or at least, that it is subsidiary to the principal action; action for
responsibility (of the employer) is in itself a principal action.

In contrast, an action based on a delict seeks to enforce the subsidiary liability of the
employer for the criminal negligence of the employee as provided in Art. 103, RPC. To
hold the employer liable in a subsidiary capacity under a delict, the aggrieved party
must initiate a criminal action where the employee's delict and corresponding primary
liability are established. If the present action proceeds from a delict, then the trial
court's jurisdiction over Foronda is necessary.

However, the action filed by Tuazon was based on a quasi-delict, which is separate
and independent from an action based on a delict. Hence, there was no need to
reserve the filing of a separate civil action. The purpose of allowing the filing of an
independent action based on quasi-delict against the employer is to facilitate the
remedy for civil wrongs.

WHEREFORE, we DENY the instant petition for review. The Resolution dated 21 October
1999 of the Court of Appeals in CA-G.R. SP No. 53572, as well as its Resolution dated 20
January 2000 denying the motion for reconsideration, is AFFIRMED with the
MODIFICATION that the amount due shall earn legal interest at 6% per annum
computed from 30 May 1995, the date of the trial courts decision. Upon finality of this
decision, the amount due shall earn interest at 12% per annum, in lieu of 6% per annum,
until full payment.

22. EVELYN YONAHA, petitioner, vs. HON. COURT OF APPEALS and HEIRS OF HECTOR
CAETE, respondents.

G.R. No. 112346. March 29, 1996

FACTS: Elmer Ouano was charged with the crime of Reckless Imprudence Resulting In
Homicide when accused, while driving a Toyota Tamaraw registered in the name of
Raul Cabahug and owned by EK SEA Products, bumped and hit Hector Caete, which
caused the latters instantaneous death, due to the multiple severe traumatic injuries at
different parts of his body.

When arraigned, the accused pleaded guilty.

RTC: find accused guilty beyond reasonable doubt of the offense charged against him
and to pay the heirs of the victim.

A writ of execution was issued for the satisfaction of the monetary award. In his Return
of Service, the MTCC Deputy City Sheriff stated that he had served the writ on accused
Elmer Ouano but that the latter had manifested his inability to pay the money
obligation.

Forthwith, private respondents presented a motion for subsidiary execution with neither
a notice of hearing nor notice to petitioner Evelyn Yohana.
RTC: Issued an order, directing the issuance of a writ of subsidiary execution.

The sheriff went to petitioner’s residence to enforce the writ, and it was then, allegedly
for the first time, that petitioner was informed of Ouano’s conviction. Petitioner filed a
motion to stay and to recall the subsidiary writ of execution principally anchored on the
lack of prior notice to her and on the fact that the employer’s liability had yet to be
established.

RTC: denied petitioners motion.

Petitioner promptly elevated the matter to the Court of Appeals for review.

CA: initially restrained the implementation of the assailed orders and issued a writ of
preliminary injunction upon the filing of a P10,000.00 bond. Ultimately, however, the
appellate court, in its decision of 28 September 1993, dismissed the petition for lack of
merit and thereby lifted the writ of preliminary injunction. The Court of Appeals
ratiocinated: that enforcement of the secondary or subsidiary liability of employer may
be done by motion in the same criminal case, a recourse which presupposes a hearing.
But even assuming that issuance of writ of subsidiary execution requires notice and
hearing, we believe a hearing in the present case would be sheer rigmarole, an
unnecessary formality, because, as employer, petitioner became subsidiarily liable
upon the conviction of her accused driver, Elmer Ouano, and proof of the latters
insolvency. And if she had any defense to free herself from such subsidiary liability, she
could have ventilated and substantiated the same in connection with her (petitioners)
motion to stay and recall the writ of subsidiary execution in question. But from her said
motion, it can be gleaned that except for the protestation of violation of due process,
and absence of notice to her of the motion for issuance of a writ of subsidiary
execution, petitioner intimated no defense which could absolve her of subsidiary
liability under the premises. Then, too, after the denial of her motion to stay and recall
subject writ, petitioner moved for reconsideration but in her motion for reconsideration,
she averred no exculpatory facts which could save her from subsidiary liability, as
employer of the convicted Elmer Ouano.

In the instant appeal, petitioner additionally reminds the Court that Ouano’s conviction
was not the result of a finding of proof beyond reasonable doubt but from his
spontaneous plea of guilt.

Hence this petition.

Issue: Whether Yohana is subsidiarily lliable.

Held: The court find merit in the petition.

The statutory basis for an employer’s subsidiary liability is found in Article 103 of the
Revised Penal Code. This Court has since sanctioned the enforcement of this subsidiary
liability in the same criminal proceedings in which the employee is adjudged guilty, on
the thesis that it really is a part of, and merely an incident in, the execution process of
the judgment. But, execution against the employer must not issue as just a matter of
course, and it behooves the court, as a measure of due process to the employer, to
determine and resolve a priori, in a hearing set for the purpose, the legal applicability
and propriety of the employer’s liability. The requirement is mandatory even when it
appears prima facie that execution against the convicted employee cannot be
satisfied. The court must convince itself that the convicted employee is in truth in the
employ of the employer; that the latter is engaged in an industry of some kind; that the
employee has committed the crime to which civil liability attaches while in the
performance of his duties as such; and that execution against the employee is
unsuccessful by reason of insolvency.

The assumption that, since petitioner in this case did not aver any exculpatory facts in
her motion to stay and recall, as well as in her motion for reconsideration, which could
save her from liability, a hearing would be a futile and a sheer rigmarole is
unacceptable. The employer must be given his full day in court.

To repeat, the subsidiary liability of an employer under Article 103 of the Revised Penal
Code requires

(a) the existence of an employer-employee relationship;

(b) that the employer is engaged in some kind of industry;

(c) that the employee is adjudged guilty of the wrongful act and found to have
committed the offense in the discharge of his duties (not necessarily any offense he
commits while in the discharge of such duties); and

(d) that said employee is insolvent. The judgment of conviction of the employee, of
course, concludes the employerand the subsidiary liability may be enforced in the
same criminal case, but to afford the employer due process, the court should hear and
decide that liability on the basis of the conditions required therefor by law.

WHEREFORE, finding the order, dated 29 May 1992, as well as the order of 24 August
1992 to have been improvidently issued, said orders are hereby SET ASIDE. Petitioner
shall be given the right to a hearing on the motion for the issuance of a writ of subsidiary
execution filed by private respondents, and the case is REMANDED to the trial court for
further proceedings conformably with our foregoing opinion. No costs.