TORTS – 1ST CASES - 1

noon to 12:00 midnight. All incidental expenses for the maintenance

THIRD DIVISION of the vehicles they were driving were accounted against them,
including gasoline expenses.

The drivers worked at least three to four times a week, depending on

[G.R. No. 116123. March 13, 1997]
the availability of taxicabs. They earned not less than US$15.00
daily. In excess of that amount, however, they were required to make
cash deposits to the company, which they could later withdraw every
fifteen days.
SERGIO F. NAGUIAT, doing business under the name and style
SERGIO F. NAGUIAT ENT., INC., & CLARK FIELD
Due to the phase-out of the US military bases in the Philippines, from
TAXI, INC., petitioners, vs. NATIONAL LABOR
which Clark Air Base was not spared, the AAFES was dissolved, and
RELATIONS COMMISSION (THIRD DIVISION),
the services of individual respondents were officially terminated on
NATIONAL ORGANIZATION OF WORKINGMEN
November 26, 1991.
and its members, LEONARDO T. GALANG, et
al., respondents.
The AAFES Taxi Drivers Association ("drivers' union"), through its
local president, Eduardo Castillo, and CFTI held negotiations as
DECISION
regards separation benefits that should be awarded in favor of the
PANGANIBAN, J.: drivers. They arrived at an agreement that the separated drivers will
be given P500.00 for every year of service as severance pay. Most of
Are private respondent-employees of petitioner Clark Field Taxi, the drivers accepted said amount in December 1991 and January
Inc., who were separated from service due to the closure of Clark Air 1992. However, individual respondents herein refused to accept
Base, entitled to separation pay and, if so, in what amount? Are officers theirs.
of corporations ipso facto liable jointly and severally with the
companies they represent for the payment of separation pay? Instead, after disaffiliating themselves from the drivers' union,
individual respondents, through the National Organization of
These questions are answered by the Court in resolving this Workingmen ("NOWM"), a labor organization which they
petition for certiorari under Rule 65 of the Rules of Court assailing the subsequently joined, filed a complaint[5] against "Sergio F. Naguiat
Resolutions of the National Labor Relations Commission (Third doing business under the name and style Sergio F. Naguiat
Division)[1]promulgated on February 28, 1994,[2] and May 31, Enterprises, Inc., Army-Air Force Exchange Services (AAFES) with
1994.[3] The February 28, 1994 Resolution affirmed with modifications Mark Hooper as Area Service Manager, Pacific Region, and AAFES
the decision[4] of Labor Arbiter Ariel C. Santos in NLRC Case No. Taxi Drivers Association with Eduardo Castillo as President," for
RAB-III-12-2477-91.The second Resolution denied the motion for payment of separation pay due to termination/phase-out. Said
reconsideration of herein petitioners. complaint was later amended[6] to include additional taxi drivers who
The NLRC modified the decision of the labor arbiter by granting were similarly situated as complainants, and CFTI with Antolin T.
separation pay to herein individual respondents in the increased Naguiat as vice president and general manager, as party respondent.
amount of US$120.00 for every year of service or its peso equivalent,
and holding Sergio F. Naguiat Enterprises, Inc., Sergio F. Naguiat and In their complaint, herein private respondents alleged that they
Antolin T. Naguiat, jointly and severally liable with Clark Field Taxi, were regular employees of Naguiat Enterprises, although their
Inc. ("CFTI"). individual applications for employment were approved by CFTI. They
claimed to have been assigned to Naguiat Enterprises after having been
hired by CFTI, and that the former thence managed, controlled and
supervised their employment. They averred further that they were
The Facts entitled to separation pay based on their latest daily earnings of
US$15.00 for working sixteen (16) days a month.
The following facts are derived from the records of the case: In their position paper submitted to the labor arbiter, herein
petitioners claimed that the cessation of business of CFTI on
Petitioner CFTI held a concessionaire's contract with the Army Air November 26, 1991, was due to "great financial losses and lost
Force Exchange Services ("AAFES") for the operation of taxi business opportunity" resulting from the phase-out of Clark Air Base
services within Clark Air Base. Sergio F. Naguiat was CFTI's brought about by the Mt. Pinatubo eruption and the expiration of the
president, while Antolin T. Naguiat was its vice-president. Like RP-US military bases agreement. They admitted that CFTI had agreed
Sergio F. Naguiat Enterprises, Incorporated ("Naguiat Enterprises"), a with the drivers' union, through its President Eduardo Castillo who
trading firm, it was a family-owned corporation. claimed to have had blanket authority to negotiate with CFTI in behalf
of union members, to grant its taxi driver-employees separation pay
Individual respondents were previously employed by CFTI as taxicab equivalent to P500.00 for every year of service.
drivers. During their employment, they were required to pay a daily The labor arbiter, finding the individual complainants to be
"boundary fee" in the amount of US$26.50 for those working from regular workers of CFTI, ordered the latter to pay them P1,200.00 for
1:00 a.m. to 12:00 noon, and US$27.00 for those working from 12:00 every year of service "for humanitarian consideration," setting aside
 TORTS – 1ST CASES - 2

the earlier agreement between CFTI and the drivers' union of P500.00 II. Whether or not Messrs. Teofilo Rafols and Romeo
for every year of service. The labor arbiter rejected the allegation of N. Lopez could validly represent herein private
CFTI that it was forced to close business due to "great financial losses respondents; and,
and lost business opportunity" since, at the time it ceased operations,
CFTI was profitably earning and the cessation of its business was due III. Whether or not the resolution issued by public
to the untimely closure of Clark Air Base. In not awarding separation respondent is contrary to law."[10]
pay in accordance with the Labor Code, the labor-arbiter explained: Petitioners also submit two additional issues by way of a
[11]
"To allow respondents exemption from its (sic) obligation supplement to their petition, to Wit: that Petitioners Sergio F.
to pay separation pay would be inhuman to complainants Naguiat and Antolin Naguiat were denied due process; and that
but to impose a monetary obligation to an employer whose petitioners were not furnished copies of private respondents' appeal to
profitable business was abruptly shot (sic) down by force the NLRC. As to the procedural lapse of insufficient copies of the
majeure would be unfair and unjust to say the least." [7] appeal, the proper forum before which petitioners should have raised it
is the NLRC. They, however, failed to question this in their motion for
and thus, simply awarded an amount for "humanitarian consideration." reconsideration. As a consequence, they are deemed to have waived
the same and voluntarily submitted themselves to the jurisdiction of the
Herein individual private respondents appealed to the NLRC. In appellate body.
its Resolution, the NLRC modified the decision of the labor arbiter by
granting separation pay to the private respondents. The concluding Anent the first issue raised in their original petition, petitioners
paragraphs of the NLRC Resolution read: contend that NLRC committed grave abuse of discretion amounting to
lack or excess of jurisdiction in unilaterally increasing the amount of
"The contention of complainant is partly correct. One-half severance pay granted by the labor arbiter. They claim that this was not
month salary should be US$120.00 but this amount can not supported by substantial evidence since it was based simply on the self-
be paid to the complainant in U.S. Dollar which is not the serving allegation of respondents that their monthly take-home pay was
legal tender in the Philippines. Paras, in commenting on not lower than $240.00.
Art. 1249 of the New Civil Code, defines legal tender as
'that which a debtor may compel a creditor to accept in On the second issue, petitioners aver that NOWM cannot make
payment of the debt. The complainants who are the legal representations in behalf of individual respondents who should,
creditors in this instance can be compelled to accept the instead, be bound by the decision of the union (AAFES Taxi Drivers
Philippine peso which is the legal tender, in which case, Association) of which they were members.
the table of conversion (exchange rate) at the time of
payment or satisfaction of the judgment should be As to the third issue, petitioners incessantly insist that Sergio F.
used. However, since the choice is left to the debtor, Naguiat Enterprises, Inc. is a separate and distinct juridical entity
(respondents) they may choose to pay in US which cannot be held jointly and severally liable for the obligations of
dollar.' (Phoenix Assurance Co. vs. Macondray & Co. Inc., CFTI.And similarly, Sergio F. Naguiat and Antolin Naguiat were
L-25048, May 13, 1975) merely officers and stockholders of CFTI and, thus, could not be held
personally accountable for corporate debts.
In discharging the above obligations, Sergio F. Naguiat
Enterprises, which is headed by Sergio F. Naguiat and Lastly, Sergio and Antolin Naguiat assail the Resolution of
Antolin Naguiat, father and son at the same time the NLRC holding them solidarily liable despite not having been
President and Vice-President and General Manager, impleaded as parties to the complaint.
respectively, should be joined as indispensable party Individual respondents filed a comment separate from that of
whose liability is joint and several. (Sec. 7, Rule 3, Rules NOWM. In sum, both aver that petitioners had the opportunity but
of Court)"[8] failed to refute, the taxi drivers' claim of having an average monthly
As mentioned earlier, the motion for reconsideration of herein earning of $240.00; that individual respondents became members of
petitioners was denied by the NLRC. Hence, this petition with prayer NOWM after disaffiliating themselves from the AAFES Taxi Drivers
for issuance of a temporary restraining order. Upon posting by the Association which, through the manipulations of its President Eduardo
petitioners of a surety bond, a temporary restraining order [9] was issued Castillo, unconscionably compromised their separation pay; and that
by this Court enjoining execution of the assailed Resolutions. Naguiat Enterprises, being their indirect employer, is solidarily liable
under the law for violation of the Labor Code, in this case, for
nonpayment of their separation pay.

Issues The Solicitor General unqualifiedly supports the allegations of

private respondents. In addition, he submits that the separate
personalities of respondent corporations and their officers should be
The petitioners raise the following issues before this Court for disregarded and considered one and the same as these were used to
resolution: perpetrate injustice to their employees.

"I. Whether or not public respondent NLRC (3rd

Div.) committed grave abuse of discretion amounting
to lack of jurisdiction in issuing the appealed The Court's Ruling
resolution;
 TORTS – 1ST CASES - 3

As will be discussed below, the petition is partially meritorious. establishment or undertaking not due to serious business
losses or financial reverses, the separation pay shall be
equivalent to one (1) month pay or at least one-half ()
month pay for every year of service, whichever is
First Issue: Amount of Separation Pay
higher. A fraction of at least six (6) months shall be
considered one (1 ) whole year."
Firmly, we reiterate the rule that in a petition for certiorari filed Considering the above, we find that NLRC did not commit grave
pursuant to Rule 65 of the Rules of Court, which is the only way a labor abuse of discretion in ruling that individual respondents were entitled
case may reach the Supreme Court, the petitioner/s must clearly show to separation pay[15] in the amount $120.00 (one-half of $240.00
that the NLRC acted without or in excess of jurisdiction or with grave monthly pay) or its peso equivalent for every year of service.
abuse of discretion.[12]
Second Issue: NOWM's Personality to
Long-standing and well-settled in Philippine jurisprudence is the Represent Individual Respondents-Employees
judicial dictum that findings of fact of administrative agencies and
quasi-judicial bodies, which have acquired expertise because their
jurisdiction is confined to specific matters, are generally accorded not On the question of NOWM's authority to represent private
only great respect but even finality; and are binding upon this Court respondents, we hold petitioners in estoppel for not having seasonably
unless there is a showing of grave abuse of discretion, or where it is raised this issue before the labor arbiter or the NLRC. NOWM was
clearly shown that they were arrived at arbitrarily or in disregard of the already a party-litigant as the organization representing the taxi driver-
evidence on record.[13] complainants before the labor arbiter. But petitioners who were party-
respondents in said complaint did not assail the juridical personality of
Nevertheless, this Court carefully perused the records of the
NOWM and the validity of its representations in behalf of the
instant case if only to determine whether public respondent committed
complaining taxi drivers before the quasi-judicial bodies. Therefore,
grave abuse of discretion, amounting to lack of jurisdiction, in granting
they are now estopped from raising such question before this Court. In
the clamor of private respondents that their separation pay should be
any event, petitioners acknowledged before this Court that the taxi
based on the amount of $240.00, allegedly their minimum monthly
drivers allegedly represented by NOWM, are themselves parties in this
earnings as taxi drivers of petitioners.
case.[16]
In their amended complaint before the Regional Arbitration
Branch in San Fernando, Pampanga, herein private respondents set
forth in detail the work schedule and financial arrangement they had Third Issue: Liability of Petitioner-
with their employer. Therefrom they inferred that their monthly take- Corporations and Their Respective Officers
home pay amounted to not less than $240.00. Herein petitioners did
not bother to refute nor offer any evidence to controvert said
allegations.Remaining undisputed, the labor arbiter adopted such facts The resolution of this issue involves another factual finding that
in his decision. Petitioners did not even appeal from the decision of the Naguiat Enterprises actually managed, supervised and controlled
labor arbiter nor manifest any error in his findings and employment terms of the taxi drivers, making it their indirect
conclusions. Thus, petitioners are in estoppel for not having questioned employer. As adverted to earlier, factual findings of quasi-judicial
such facts when they had all opportunity to do so. Private respondents, bodies are binding upon the court in the absence of a showing of grave
like petitioners, are bound by the factual findings of Respondent abuse of discretion.
Commission.
Unfortunately, the NLRC did not discuss or give any explanation
Petitioners also claim that the closure of their taxi business was for holding Naguiat Enterprises and its officers jointly and severally
due to great financial losses brought about by the eruption of Mt. liable in discharging CFTI's liability for payment of separation
Pinatubo which made the roads practically impassable to their pay. We again remind those concerned that decisions, however
taxicabs.Likewise well-settled is the rule that business losses or concisely written, must distinctly and clearly set forth the facts and law
financial reverses, in order to sustain retrenchment of personnel or upon which they are based.[17] This rule applies as well to dispositions
closure of business and warrant exemption from payment of separation by quasi-judicial and administrative bodies.
pay, must be proved with clear and satisfactory evidence. [14] The
records, however, are devoid of such evidence.
The labor arbiter; as affirmed by NLRC, correctly found that Naguiat Enterprises Not Liable
petitioners stopped their taxi business within Clark Air Base because
of the phase-out of U.S. military presence thereat. It was not due to any
great financial loss because petitioners' taxi business was earning In impleading Naguiat Enterprises as solidarily liable for the
profitably at the time of its closure. obligations of CFTI, respondents rely on Articles 106, [18] 107[19] and
109[20] of the Labor Code.
With respect to the amount of separation pay that should be
granted, Article 283 of the Labor Code provides: Based on factual submissions of the parties, the labor arbiter,
however, found that individual respondents were regular employees of
"x x x In case of retrenchment to prevent losses and in CFTI who received wages on a boundary or commission basis.
cases of closures or cessation of operations of

We find no reason to make a contrary finding. Labor-only
contracting exists where: (1) the person supplying workers to an
employer does not have substantial capital or investment in the form
of tools, equipment, machinery, and work premises, among others;
and (2) the workers recruited and placed by such person are performing
activities which are directly related to the principal business of the
employer.[21] Independent contractors, meanwhile, are those who
exercise independent employment, contracting to do a piece of work
according to their own methods without being subject to control of
their employer except as to the result of their work.[22]
From the evidence proffered by both parties, there is no
substantial basis to hold that Naguiat Enterprises is an indirect
employer of individual respondents much less a labor only
contractor. On the contrary, petitioners submitted documents such as
the drivers' applications for employment with CFTI, [23] and social
security remittances[24] and payroll[25] of Naguiat Enterprises showing
that none of the individual respondents were its employees. Moreover,
in the contract[26] between CFTI and AAFES, the former, as
concessionaire, agreed to purchase from AAFES for a certain amount
within a specified period a fleet of vehicles to be "ke(pt) on the road"
by CFTI, pursuant to their concessionaire's contract. This indicates that
CFTI became the owner of the taxicabs which became the principal
investment and asset of the company.
Private respondents failed to substantiate their claim that Naguiat
Enterprises managed, supervised and controlled their employment. It
appears that they were confused on the personalities of Sergio F.
Naguiat as an individual who was the president of CFTI, and Sergio F.
Naguiat Enterprises, Inc., as a separate corporate entity with a separate
business. They presumed that Sergio F. Naguiat, who was at the same
time a stockholder and director[27] of Sergio F. Naguiat Enterprises,
Inc., was managing and controlling the taxi business on behalf of the
latter. A closer scrutiny and analysis of the records, however, evince
the truth of the matter: that Sergio F. Naguiat, in supervising the-taxi
drivers and determining their employment terms, was rather carrying
out his responsibilities as president of CFTI. Hence, Naguiat
Enterprises as a separate corporation does not appear to be involved at
all in the taxi business.
To illustrate further, we refer to the testimony of a driver-claimant
on cross examination.
"Atty. Suarez
Is it not true that you applied not with Sergio F.
Naguiat but with Clark Field Taxi?
Witness
I applied for (sic) Sergio F. Naguiat
Atty. Suarez
Sergio F. Naguiat as an individual or the corporation?
Witness
'Sergio F. Naguiat na tao.'
Atty. Suarez
Who is Sergio F. Naguiat?
Witness
TORTS – 1ST CASES - 4
He is the one managing the Sergio F. Naguiat
Enterprises and he is the one whom we believe as our
employer.
Atty. Suarez
What is exactly the position of Sergio F. Naguiat with
the Sergio F. Naguiat Enterprises?
Witness
He is the owner, sir.
Atty. Suarez
How about with Clark Field Taxi Incorporated what is
the position of Mr. Naguiat?
Witness
What I know is that he is a concessionaire.
xxx xxx xxx
Atty. Suarez
But do you also know that Sergio F. Naguiat is the
President of Clark Field Taxi, Incorporated?
Witness
Yes. sir.
Atty. Suarez
How about Mr. Antolin Naguiat what is his role in the
taxi services, the operation of the Clark Field Taxi,
Incorporated?
Witness
He is the vice president."[28]
And, although the witness insisted that Naguiat Enterprises was
his employer, he could not deny that he received his salary from the
office of CFTI inside the base.[29]
Another driver-claimant admitted, upon the prodding of counsel
for the corporations, that Naguiat Enterprises was in the trading
business while CFTI was in taxi services.[30]
In addition, the Constitution[31] of CFTI-AAFES Taxi Drivers
Association which, admittedly, was the union of individual
respondents while still working at Clark Air Base, states that members
thereof are the employees of CFTI and "(f)or collective bargaining
purposes, the definite employer is the Clark Field Taxi Inc."
From the foregoing, the ineludible conclusion is that CFTI was
the actual and direct employer of individual respondents, and that
Naguiat Enterprises was neither their indirect employer nor labor-only
contractor. It was not involved at all in the taxi business.
CFTI president solidarily liable
Petitioner-corporations would likewise want to avoid the solidary
liability of their officers. To bolster their position, Sergio F. Naguiat
 TORTS – 1ST CASES - 5

and Antolin T. Naguiat specifically aver that they were denied due (d) The record does not clearly identify 'the officer or officers' of
process since they were not parties to the complaint below. [32] In the RANSOM directly responsible for failure to pay the back wages of
broader interest of justice, we, however, hold that Sergio F. Naguiat, in the 22 strikers. In the absence of definite proof in that regard, we
his capacity as president of CFTI, cannot be exonerated from joint and believe it should be presumed that the responsible officer is the
several liability in the payment of separation pay to individual President of the corporation who can be deemed the chief operation
respondents. officer thereof. Thus, in RA 602, criminal responsibility is with
the 'Manager or in his default, the person acting as such.' In
A.C. Ransom Labor Union-CCLU vs. NLRC[33] is the case in RANSOM, the President appears to be the Manager." (Underscoring
point. A.C. Ransom Corporation was a family corporation, the supplied.)
stockholders of which were members of the Hernandez family. In
1973, it filed an application for clearance to close or cease operations,
which was duly granted by the Ministry of Labor and Employment, Sergio F. Naguiat, admittedly, was the president of CFTI who
without prejudice to the right of employees to seek redress of actively managed the business. Thus, applying the ruling in A. C.
grievance, if any.Backwages of 22 employees, who engaged in a strike Ransom, he falls within the meaning of an "employer" as contemplated
prior to the closure, were subsequently computed at P164,984.00. Up by the Labor Code, who may be held jointly and severally liable for
to September 1976, the union filed about ten (10) motions for the obligations of the corporation to its dismissed employees.
execution against the corporation, but none could be implemented, Moreover, petitioners also conceded that both CFTI and Naguiat
presumably for failure to find leviable assets of said corporation. In its Enterprises were "close family corporations" [34] owned by the Naguiat
last motion for execution, the union asked that officers and agents of family. Section 100, paragraph 5, (under Title XII on Close
the company be held personally liable for payment of the Corporations) of the Corporation Code, states:
backwages. This was granted by the labor arbiter. In the corporation's
appeal to the NLRC, one of the issues raised was: "Is the judgment "(5) To the extent that the stockholders are actively
against a corporation to reinstate its dismissed employees with engage(d) in the management or operation of the business
backwages, enforceable against its officer and agents, in their and affairs of a close corporation, the stockholders shall be
individual, private and personal capacities, who were not parties in the held to strict fiduciary duties to each other and among
case where the judgment was rendered?" The NLRC answered in the themselves. Said stockholders shall be personally liable for
negative, on the ground that officers of a corporation are not liable corporate torts unless the corporation has obtained
personally for official acts unless they exceeded the scope of their reasonably adequate liability insurance." (underscoring
authority. supplied)

On certiorari, this Court reversed the NLRC and upheld the labor Nothing in the records show whether CFTI obtained "reasonably
arbiter. In imposing joint and several liability upon the company adequate liability insurance;" thus, what remains is to determine
president, the Court, speaking through Mme. Justice Ameurfina whether there was corporate tort.
Melencio-Herrera, ratiocinated this wise:
Our jurisprudence is wanting as to the definite scope of
"(b) How can the foregoing (Articles 265 and 273 of the "corporate tort." Essentially, "tort" consists in the violation of a right
Labor Code) provisions be implemented when the given or the omission of a duty imposed by law. [35] Simply stated, tort
employer is a corporation? The answer is found in Article is a breach of a legal duty.[36] Article 283 of the Labor Code mandates
212(c) of the Labor Code which provides: the employer to grant separation pay to employees in case of closure
or cessation of operations of establishment or undertaking not due to
'(c) 'Employer' includes any person acting in the interest of an serious business losses or financial reverses, which is the condition
employer, directly or indirectly. The term shall not include any labor obtaining at bar. CFTI failed to comply with this law-imposed duty or
organization or any of its officers or agents except when acting as obligation. Consequently, its stockholder who was actively engaged in
employer.' the management or operation of the business should be held personally
liable.
The foregoing was culled from Section 2 of RA 602, the Furthermore, in MAM Realty Development vs. NLRC,[37] the
Minimum Wage Law. Since RANSOM is an artificial Court recognized that a director or officer may still be held solidarily
person, it must have an officer who can be presumed to be liable with a corporation by specific provision of law. Thus:
the employer, being the 'person acting in the interest of
(the) employer' RANSOM. The corporation, only in the "x x x A corporation, being a juridical entity, may act only
technical sense, is the employer. through its directors, officers and employees. Obligations
incurred by them, acting as such corporate agents, are not
The responsible officer of an employer corporation can be theirs but the direct accountabilities of the corporation they
held personally, not to say even criminally, liable for represent. True, solidary liabilities may at times be
nonpayment of back wages. That is the policy of the law. x incurred but only when exceptional circumstances warrant
xx such as, generally, in the following cases: Scl-aw
xxx xxx xxx
(c) If the policy of the law were otherwise, the corporation employer
can have devious ways for evading payment of back wages. x x x
4. When a director, trustee or officer is made, by specific provision of
law, personally liable for his corporate action." (footnotes omitted)
 TORTS – 1ST CASES - 6

As pointed out earlier, the fifth paragraph of Section 100 of the (1) Petitioner Clark Field Taxi, Incorporated, and Sergio F. Naguiat,
Corporation Code specifically imposes personal liability upon the president and co-owner thereof, are ORDERED to pay, jointly and
stockholder actively managing or operating the business and affairs of severally, the individual respondents their separation pay computed at
the close corporation. US$120.00 for every year of service, or its peso equivalent at the time
of payment or satisfaction of the judgment;
In fact, in posting the surety bond required by this Court for the
issuance of a temporary restraining order enjoining the execution of the
assailed NLRC Resolutions, only Sergio F. Naguiat, in his individual (2) Petitioner Sergio F. Naguiat Enterprises, Incorporated, and
and personal capacity, principally bound himself to comply with the Antolin T. Naguiat are ABSOLVED from liability in the payment of
obligation thereunder, i.e., "to guarantee the payment to private separation pay to individual respondents.
respondents of any damages which they may incur by reason of the
issuance of a temporary restraining order sought, if it should be finally SO ORDERED.
adjudged that said principals were not entitled thereto." [38]
The Court here finds no application to the rule that a corporate
officer cannot be held solidarily liable with a corporation in the absence
of evidence that he had acted in bad faith or with malice.[39] In the
present case, Sergio Naguiat is held solidarily liable for corporate tort
because he had actively engaged in the management and operation of
CFTI, a close corporation.

Antolin Naguiat not personally liable

Antolin T. Naguiat was the vice president of the CFTI. Although

he carried the title of "general manager" as well, it had not been shown
that he had acted in such capacity. Furthermore, no evidence on the
extent of his participation in the management or operation of the
business was proffered. In this light, he cannot be held solidarily liable
for the obligations of CFTI and Sergio Naguiat to the private
respondents.

Fourth Issue: No Denial of Due Process

Lastly, in petitioners' Supplement to their original petition, they

assail the NLRC Resolution holding Sergio F. Naguiat and Antolin T.
Naguiat jointly and severally liable with petitioner-corporations in the
payment of separation pay, averring denial of due process since the
individual Naguiats were not impleaded as parties to the complaint.
We advert to the case of A.C. Ransom once more. The officers of
the corporation were not parties to the case when the judgment in favor
of the employees was rendered. The corporate officers raised this issue
when the labor arbiter granted the motion of the employees to enforce
the judgment against them. In spite of this, the Court held the
corporation president solidarily liable with the corporation.
Furthermore, Sergio and Antolin Naguiat voluntarily submitted
themselves to the jurisdiction of the labor arbiter when they, in their
individual capacities, filed a position paper[40] together with CFTI,
before the arbiter. They cannot now claim to have been denied due
process since they availed of the opportunity to present their positions.
WHEREFORE, the foregoing premises considered, the petition
is PARTLY GRANTED. The assailed February 28, 1994 Resolution
of the NLRC is hereby MODIFIED as follows:

THIRD DIVISION
G.R. No. 141309 June 19, 2007
LIWAYWAY VINZONS-CHATO, petitioner,
vs.
FORTUNE TOBACCO CORPORATION, respondent.
DECISION
YNARES-SANTIAGO, J.:
Petitioner assails the May 7, 1999 Decision1 of the Court of Appeals
in CA-G.R. SP No. 47167, which affirmed the September 29, 1997
Order2 of the Regional Trial Court (RTC) of Marikina, Branch 272, in
Civil Case No. 97-341-MK, denying petitioner’s motion to dismiss.
The complaint filed by respondent sought to recover damages for the
alleged violation of its constitutional rights arising from petitioner’s
issuance of Revenue Memorandum Circular No. 37-93 (RMC 37-93),
which the Court declared invalid in Commissioner of Internal
Revenue v. Court of Appeals.3
Petitioner Liwayway Vinzons-Chato was then the Commissioner of
Internal Revenue while respondent Fortune Tobacco Corporation is
an entity engaged in the manufacture of different brands of cigarettes,
among which are "Champion," "Hope," and "More" cigarettes.
On June 10, 1993, the legislature enacted Republic Act No. 7654 (RA counsel to execute the certification against forum shopping. The
7654), which took effect on July 3, 1993. Prior to its effectivity,
cigarette brands ‘Champion," "Hope," and "More" were considered
local brands subjected to an ad valorem tax at the rate of 20-45%.
However, on July 1, 1993, or two days before RA 7654 took effect,
petitioner issued RMC 37-93 reclassifying "Champion," "Hope," and
"More" as locally manufactured cigarettes bearing a foreign
brand subject to the 55% ad valorem tax.4 RMC 37-93 in effect
subjected "Hope," "More," and "Champion" cigarettes to the
provisions of RA 7654, specifically, to Sec. 142, 5 (c)(1) on locally
manufactured cigarettes which are currently classified and taxed at
55%, and which imposes an ad valorem tax of "55% provided that
the minimum tax shall not be less than Five Pesos (P5.00) per pack."6
On July 2, 1993, at about 5:50 p.m., BIR Deputy Commissioner
Victor A. Deoferio, Jr. sent via telefax a copy of RMC 37-93 to
Fortune Tobacco but it was addressed to no one in particular. On July
15, 1993, Fortune Tobacco received, by ordinary mail, a certified
xerox copy of RMC 37-93. On July 20, 1993, respondent filed a
motion for reconsideration requesting the recall of RMC 37-93, but
was denied in a letter dated July 30, 1993.7 The same letter assessed
respondent for ad valorem tax deficiency amounting to P9,598,334.00
(computed on the basis of RMC 37-93) and demanded payment
within 10 days from receipt thereof.8 On August 3, 1993, respondent
filed a petition for review with the Court of Tax Appeals (CTA),
which on September 30, 1993, issued an injunction enjoining the
implementation of RMC 37-93.9 In its decision dated August 10,
1994, the CTA ruled that RMC 37-93 is defective, invalid, and
unenforceable and further enjoined petitioner from collecting the
deficiency tax assessment issued pursuant to RMC No. 37-93. This
ruling was affirmed by the Court of Appeals, and finally by this Court
TORTS – 1ST CASES - 7
in Commissioner of Internal Revenue v. Court of Appeals.10 It was
held, among others, that RMC 37-93, has fallen short of the
requirements for a valid administrative issuance.
On April 10, 1997, respondent filed before the RTC a complaint 11 for
damages against petitioner in her private capacity. Respondent
contended that the latter should be held liable for damages under
Article 32 of the Civil Code considering that the issuance of RMC
37-93 violated its constitutional right against deprivation of property
without due process of law and the right to equal protection of the
laws.
Petitioner filed a motion to dismiss12 contending that: (1) respondent
has no cause of action against her because she issued RMC 37-93 in
the performance of her official function and within the scope of her
authority. She claimed that she acted merely as an agent of the
Republic and therefore the latter is the one responsible for her acts;
(2) the complaint states no cause of action for lack of allegation of
malice or bad faith; and (3) the certification against forum shopping
was signed by respondent’s counsel in violation of the rule that it is
the plaintiff or the principal party who should sign the same.
On September 29, 1997, the RTC denied petitioner’s motion to
dismiss holding that to rule on the allegations of petitioner would be
to prematurely decide the merits of the case without allowing the
parties to present evidence. It further held that the defect in the
certification against forum shopping was cured by respondent’s
submission of the corporate secretary’s certificate authorizing its
dispositive portion thereof, states:
WHEREFORE, foregoing premises considered, the motion
to dismiss filed by the defendant Liwayway Vinzons-Chato
and the motion to strike out and expunge from the record the
said motion to dismiss filed by plaintiff Fortune Tobacco
Corporation are both denied on the grounds aforecited. The
defendant is ordered to file her answer to the complaint
within ten (10) days from receipt of this Order.
SO ORDERED.13
The case was elevated to the Court of Appeals via a petition for
certiorari under Rule 65. However, same was dismissed on the
ground that under Article 32 of the Civil Code, liability may arise
even if the defendant did not act with malice or bad faith. The
appellate court ratiocinated that Section 38, Book I of the
Administrative Code is the general law on the civil liability of public
officers while Article 32 of the Civil Code is the special law that
governs the instant case. Consequently, malice or bad faith need not
be alleged in the complaint for damages. It also sustained the ruling
of the RTC that the defect of the certification against forum shopping
was cured by the submission of the corporate secretary’s certificate
giving authority to its counsel to execute the same.
Undaunted, petitioner filed the instant recourse contending that the
suit is grounded on her acts done in the performance of her functions
as a public officer, hence, it is Section 38, Book I of the
Administrative Code which should be applied. Under this provision,
liability will attach only when there is a clear showing of bad faith,

malice, or gross negligence. She further averred that the Civil Code,
specifically, Article 32 which allows recovery of damages for
violation of constitutional rights, is a general law on the liability of
public officers; while Section 38, Book I of the Administrative Code
is a special law on the superior public officers’ liability, such that, if
the complaint, as in the instant case, does not allege bad faith, malice,
or gross negligence, the same is dismissible for failure to state a cause
of action. As to the defect of the certification against forum shopping,
she urged the Court to strictly construe the rules and to dismiss the
complaint.
Conversely, respondent argued that Section 38 which treats in general
the public officers’ "acts" from which civil liability may arise, is a
general law; while Article 32 which deals specifically with the public
officers’ violation of constitutional rights, is a special provision
which should determine whether the complaint states a cause of
action or not. Citing the case of Lim v. Ponce de Leon,14 respondent
alleged that under Article 32 of the Civil Code, it is enough that there
was a violation of the constitutional rights of the plaintiff and it is not
required that said public officer should have acted with malice or in
bad faith. Hence, it concluded that even granting that the complaint
failed to allege bad faith or malice, the motion to dismiss for failure
to state a cause of action should be denied inasmuch as bad faith or
malice are not necessary to hold petitioner liable.
The issues for resolution are as follows:
(1) May a public officer be validly sued in his/her private
capacity for acts done in connection with the discharge of
the functions of his/her office?
(2) Which as between Article 32 of the Civil Code and
Section 38, Book I of the Administrative Code should
govern in determining whether the instant complaint states a
cause of action?
(3) Should the complaint be dismissed for failure to comply
with the rule on certification against forum shopping?
(4) May petitioner be held liable for damages?
On the first issue, the general rule is that a public officer is not liable
for damages which a person may suffer arising from the just
performance of his official duties and within the scope of his assigned
tasks.15 An officer who acts within his authority to administer the
affairs of the office which he/she heads is not liable for damages that
may have been caused to another, as it would virtually be a charge
against the Republic, which is not amenable to judgment for
monetary claims without its consent.16 However, a public officer is by
law not immune from damages in his/her personal capacity for acts
done in bad faith which, being outside the scope of his authority, are
no longer protected by the mantle of immunity for official actions.17
Specifically, under Section 38, Book I of the Administrative Code,
civil liability may arise where there is bad faith, malice, or gross
negligence on the part of a superior public officer. And, under Section
39 of the same Book, civil liability may arise where the subordinate
TORTS – 1ST CASES - 8
public officer’s act is characterized by willfulness or negligence.
Thus –
Sec. 38. Liability of Superior Officers. – (1) A public
officer shall not be civilly liable for acts done in the
performance of his official duties, unless there is a clear
showing of bad faith, malice or gross negligence.
xxxx
Section 39. Liability of Subordinate Officers. – No
subordinate officer or employee shall be civilly liable for
acts done by him in good faith in the performance of his
duties. However, he shall be liable for willful or negligent
acts done by him which are contrary to law, morals, public
policy and good customs even if he acts under orders or
instructions of his superior.
In addition, the Court held in Cojuangco, Jr. v. Court of
Appeals,18 that a public officer who directly or indirectly violates the
constitutional rights of another, may be validly sued for damages
under Article 32 of the Civil Code even if his acts were not so tainted
with malice or bad faith.
Thus, the rule in this jurisdiction is that a public officer may be
validly sued in his/her private capacity for acts done in the course of
the performance of the functions of the office, where said public
officer: (1) acted with malice, bad faith, or negligence; or (2) where
the public officer violated a constitutional right of the plaintiff.
Anent the second issue, we hold that the complaint filed by
respondent stated a cause of action and that the decisive provision
thereon is Article 32 of the Civil Code.
A general statute is one which embraces a class of subjects or places
and does not omit any subject or place naturally belonging to such
class. A special statute, as the term is generally understood, is one
which relates to particular persons or things of a class or to a
particular portion or section of the state only.19
A general law and a special law on the same subject are statutes
in pari materia and should, accordingly, be read together and
harmonized, if possible, with a view to giving effect to both. The rule
is that where there are two acts, one of which is special and particular
and the other general which, if standing alone, would include the
same matter and thus conflict with the special act, the special law
must prevail since it evinces the legislative intent more clearly than
that of a general statute and must not be taken as intended to affect
the more particular and specific provisions of the earlier act, unless it
is absolutely necessary so to construe it in order to give its words any
meaning at all.20
The circumstance that the special law is passed before or after the
general act does not change the principle. Where the special law is
later, it will be regarded as an exception to, or a qualification of, the
prior general act; and where the general act is later, the special statute
will be construed as remaining an exception to its terms, unless
repealed expressly or by necessary implication.21

Thus, in City of Manila v. Teotico,22 the Court held that Article 2189
of the Civil Code which holds provinces, cities, and municipalities
civilly liable for death or injuries by reason of defective conditions of
roads and other public works, is a special provision and should
prevail over Section 4 of Republic Act No. 409, the Charter of
Manila, in determining the liability for defective street conditions.
Under said Charter, the city shall not be held for damages or injuries
arising from the failure of the local officials to enforce the provision
of the charter, law, or ordinance, or from negligence while enforcing
or attempting to enforce the same. As explained by the Court:
Manila maintains that the former provision should prevail
over the latter, because Republic Act 409 is a special law,
intended exclusively for the City of Manila, whereas the
Civil Code is a general law, applicable to the entire
Philippines.
The Court of Appeals, however, applied the Civil Code, and,
we think, correctly. It is true that, insofar as its territorial
application is concerned, Republic Act No. 409 is a special
law and the Civil Code a general legislation; but, as regards
the subject matter of the provisions above quoted, Section 4
of Republic Act 409 establishes a general rule regulating the Let us examine the provisions involved in the case at bar. Article 32
liability of the City of Manila for "damages or injury to
persons or property arising from the failure of" city officers
"to enforce the provisions of" said Act "or any other law or
ordinance, or from negligence" of the city "Mayor,
Municipal Board, or other officers while enforcing or
attempting to enforce said provisions." Upon the other hand,
Article 2189 of the Civil Code constitutes a particular
prescription making "provinces, cities and municipalities . . .
liable for damages for the death of, or injury suffered by, any
person by reason" — specifically — "of the defective
condition of roads, streets, bridges, public buildings, and
other public works under their control or supervision." In
other words, said section 4 refers to liability arising from
negligence, in general, regardless of the object thereof,
whereas Article 2189 governs liability due to "defective
streets," in particular. Since the present action is based
upon the alleged defective condition of a road, said
Article 2189 is decisive thereon.23
In the case of Bagatsing v. Ramirez,24 the issue was which law should
govern the publication of a tax ordinance, the City Charter of Manila, The rationale for its enactment was explained by Dean Bocobo of the
a special act which treats ordinances in general and which requires
their publication before enactment and after approval, or the Tax
Code, a general law, which deals in particular with "ordinances
levying or imposing taxes, fees or other charges," and which demands
publication only after approval. In holding that it is the Tax Code
which should prevail, the Court elucidated that:
There is no question that the Revised Charter of the City of
Manila is a special act since it relates only to the City of
Manila, whereas the Local Tax Code is a general law
because it applies universally to all local governments.
Blackstone defines general law as a universal rule affecting
the entire community and special law as one relating to
particular persons or things of a class. And the rule
commonly said is that a prior special law is not ordinarily
TORTS – 1ST CASES - 9
repealed by a subsequent general law. The fact that one is
special and the other general creates a presumption that the
special is to be considered as remaining an exception of the
general, one as a general law of the land, the other as the law
of a particular case. However, the rule readily yields to a
situation where the special statute refers to a subject in
general, which the general statute treats in particular.
Th[is] exactly is the circumstance obtaining in the case at
bar. Section 17 of the Revised Charter of the City of
Manila speaks of "ordinance" in general, i.e.,
irrespective of the nature and scope thereof, whereas,
Section 43 of the Local Tax Code relates to "ordinances
levying or imposing taxes, fees or other charges" in
particular. In regard, therefore, to ordinances in general,
the Revised Charter of the City of Manila is doubtless
dominant, but, that dominant force loses its continuity
when it approaches the realm of "ordinances levying or
imposing taxes, fees or other charges" in particular.
There, the Local Tax Code controls. Here, as always, a
general provision must give way to a particular provision.
Special provision governs.
of the Civil Code provides:
ART. 32. Any public officer or employee, or any private
individual, who directly or indirectly obstructs, defeats,
violates, or in any manner impedes or impairs any of the
following rights and liberties of another person shall be
liable to the latter for damages:
xxxx
(6) The right against deprivation of property without due
process of law;
xxxx
(8) The right to the equal protection of the laws;
xxxx
Code Commission, as follows:
"DEAN BOCOBO. Article 32, regarding individual rights,
Attorney Cirilo Paredes proposes that Article 32 be so
amended as to make a public official liable for violation of
another person’s constitutional rights only if the public
official acted maliciously or in bad faith. The Code
Commission opposes this suggestion for these reasons:
"The very nature of Article 32 is that the wrong may be civil
or criminal. It is not necessary therefore that there should be
malice or bad faith. To make such a requisite would defeat
the main purpose of Article 32 which is the effective
protection of individual rights. Public officials in the past
have abused their powers on the pretext of justifiable
 TORTS – 1ST CASES - 10

motives or good faith in the performance of their duties.
Precisely, the object of the Article is to put an end to official
abuse by the plea of good faith. In the United States this
remedy is in the nature of a tort.
"Mr. Chairman, this article is firmly one of the fundamental
articles introduced in the New Civil Code to implement
democracy. There is no real democracy if a public official is
abusing and we made the article so strong and so
comprehensive that it concludes an abuse of individual
rights even if done in good faith, that official is liable. As a
matter of fact, we know that there are very few public
officials who openly and definitely abuse the individual
rights of the citizens. In most cases, the abuse is justified on
a plea of desire to enforce the law to comply with one’s
duty. And so, if we should limit the scope of this article, that
would practically nullify the object of the article. Precisely,
the opening object of the article is to put an end to abuses
which are justified by a plea of good faith, which is in most
cases the plea of officials abusing individual rights." 25
citizen. Part of the factors that propelled people power in February
1986 was the widely held perception that the government was callous
or indifferent to, if not actually responsible for, the rampant violations
of human rights. While it would certainly be too naive to expect that
violators of human rights would easily be deterred by the prospect of
facing damage suits, it should nonetheless be made clear in no
uncertain terms that Article 32 of the Civil Code makes the persons
who are directly, as well as indirectly, responsible for the
transgression, joint tortfeasors.
On the other hand, Sections 38 and 39, Book I of the Administrative
Code, laid down the rule on the civil liability of superior and
subordinate public officers for acts done in the performance of their
duties. For both superior and subordinate public officers, the presence
of bad faith, malice, and negligence are vital elements that will make
them liable for damages. Note that while said provisions deal in
particular with the liability of government officials, the subject
thereof is general, i.e., "acts" done in the performance of official
duties, without specifying the action or omission that may give rise to
a civil suit against the official concerned.

The Code Commission deemed it necessary to hold not only public Contrarily, Article 32 of the Civil Code specifies in clear and
officers but also private individuals civilly liable for violation of the unequivocal terms a particular specie of an "act" that may give rise to
rights enumerated in Article 32 of the Civil Code. It is not necessary an action for damages against a public officer, and that is, a tort for
that the defendant under this Article should have acted with malice or impairment of rights and liberties. Indeed, Article 32 is the special
bad faith, otherwise, it would defeat its main purpose, which is the provision that deals specifically with violation of constitutional rights
effective protection of individual rights. It suffices that there is a by public officers. All other actionable acts of public officers are
violation of the constitutional right of the plaintiff.26 governed by Sections 38 and 39 of the Administrative Code. While
the Civil Code, specifically, the Chapter on Human Relations is a
Article 32 was patterned after the "tort" in American law. 27 A tort is a general law, Article 32 of the same Chapter is a special and specific
wrong, a tortious act which has been defined as the commission or provision that holds a public officer liable for and allows redress from
omission of an act by one, without right, whereby another receives a particular class of wrongful acts that may be committed by public
some injury, directly or indirectly, in person, property, or officers. Compared thus with Section 38 of the Administrative Code,
28
reputation. There are cases in which it has been stated that civil which broadly deals with civil liability arising from errors in the
liability in tort is determined by the conduct and not by the mental performance of duties, Article 32 of the Civil Code is the specific
state of the tortfeasor, and there are circumstances under which the provision which must be applied in the instant case precisely filed to
motive of the defendant has been rendered immaterial. The reason seek damages for violation of constitutional rights.
sometimes given for the rule is that otherwise, the mental attitude of
the alleged wrongdoer, and not the act itself, would determine The complaint in the instant case was brought under Article 32 of the
whether the act was wrongful.29 Presence of good motive, or rather, Civil Code. Considering that bad faith and malice are not necessary in
the absence of an evil motive, does not render lawful an act which is an action based on Article 32 of the Civil Code, the failure to
otherwise an invasion of another’s legal right; that is, liability in tort specifically allege the same will not amount to failure to state a cause
is not precluded by the fact that defendant acted without evil intent. 30 of action. The courts below therefore correctly denied the motion to
dismiss on the ground of failure to state a cause of action, since it is
The clear intention therefore of the legislature was to create a distinct enough that the complaint avers a violation of a constitutional right of
cause of action in the nature of tort for violation of constitutional the plaintiff.
31
rights, irrespective of the motive or intent of the defendant. This is a
fundamental innovation in the Civil Code, and in enacting the Anent the issue on non-compliance with the rule against forum
Administrative Code pursuant to the exercise of legislative powers, shopping, the subsequent submission of the secretary’s certificate
then President Corazon C. Aquino, could not have intended to authorizing the counsel to sign and execute the certification against
obliterate this constitutional protection on civil liberties. forum shopping cured the defect of respondent’s complaint. Besides,
the merits of the instant case justify the liberal application of the
In Aberca v. Ver,32 it was held that with the enactment of Article 32, rules.33
the principle of accountability of public officials under the
Constitution acquires added meaning and assumes a larger dimension. WHEREFORE, in view of the foregoing, the petition is DENIED.
No longer may a superior official relax his vigilance or abdicate his The Decision of the Court of Appeals dated May 7, 1999 which
duty to supervise his subordinates, secure in the thought that he does affirmed the Order of the Regional Trial Court of Marikina, Branch
not have to answer for the transgressions committed by the latter 272, denying petitioner’s motion to dismiss, is AFFIRMED. The
against the constitutionally protected rights and liberties of the Presiding Judge, Regional Trial Court of Marikina, Branch 272, is
 TORTS – 1ST CASES - 11

hereby DIRECTED to continue with the proceedings in Civil Case

No. 97-341-MK with dispatch.

With costs.

SO ORDERED.
 TORTS – 1ST CASES - 12

THIRD DIVISION
day, April 13, 1995, a doctor of the hospital informed Narding that they
OCEAN BUILDERS CONSTRUCTION G.R. No. 150898
needed to talk to Bladimirs parents, hence, on Silanggas request, their
CORP., and/or DENNIS HAO,
Petitioners, Present: co-workers June Matias and Joel Edrene fetched Bladimirs parents
from Tarlac.
CARPIO MORALES, Chairperson,
- versus - BRION,
BERSAMIN, At about 8 oclock in the evening of the same day, April 13,
VILLARAMA, JR., and
SPOUSES ANTONIO and ANICIA SERENO, JJ. 1995, Bladimirs parents-respondent spouses Cubacub, with their friend
CUBACUB,
Dr. Hermes Frias (Dr. Frias), arrived at the Caybiga Hospital and
Respondents. Promulgated:
April 13, 2011 transferred Bladimir to the Quezon City General Hospital (QCGH)
x-----------------------------------------------
---x where he was placed in the intensive care unit and died the following
day, April 14, 1995.
DECISION

The death certificate issued by the QCGH recorded Bladimirs

CARPIO MORALES, J.:
immediate cause of death as cardio-respiratory arrest and the

Bladimir Cubacub (Bladimir) was employed as maintenance man by antecedent cause as pneumonia. On the other hand, the death certificate
petitioner company Ocean Builders Construction Corp. at its office in issued by Dr. Frias recorded the causes of death as cardiac arrest,
Caloocan City. multiple organ system failure, septicemia and chicken pox.

On April 9, 1995, Bladimir was afflicted with chicken Bladimirs parents-herein respondents later filed on August 17, 1995
pox. He was thus advised by petitioner Dennis Hao (Hao), the before the Tarlac Regional Trial Court (RTC) at Capas a complaint for
companys general manager, to rest for three days which he did at the damages against petitioners, alleging that Hao was guilty of negligence
companys barracks where he lives free of charge. which resulted in the deterioration of Bladimirs condition leading to
his death.

Three days later or on April 12, 1995, Bladimir went about

[1]
his usual chores of manning the gate of the company premises and even By Decision of April 14, 1997, Branch 66 of the Tarlac RTC at Capas
cleaned the company vehicles. Later in the afternoon, however, he dismissed the complaint, holding that Hao was not negligent. It ruled
asked a co-worker, Ignacio Silangga (Silangga), to accompany him to that Hao was not under any obligation to bring Bladimir to better
his house in Capas, Tarlac so he could rest. Informed by Silangga of tertiary hospitals, and assuming that Bladimir died of chicken pox
Bladimirs intention, Hao gave Bladimir P1,000.00 and ordered aggravated by pneumonia or some other complications due to lack of
Silangga to instead bring Bladimir to the nearest hospital. adequate facilities at the hospital, the same cannot be attributed to Hao.

Along with co-workers Narding and Tito Vergado, Silangga On respondents appeal, the Court of Appeals, by Decision of June 22,
thus brought Bladimir to 2001, reversed the trial courts decision, holding that by Haos failure to
the Caybiga Community Hospital (Caybiga Hospital), a primary-care bring Bladimir to a better-equipped hospital, he violated Article 161 of
hospital around one kilometer away from the office of the company. the Labor Code. It went on to state that Hao should have foreseen that
Bladimir, an adult, could suffer complications from chicken pox and,

The hospital did not allow Bladimir to leave the hospital. He had he been brought to hospitals like St. Lukes, Capitol Medical
was then confined, with Narding keeping watch over him. The next

Center, Philippine General Hospital and the like, Bladimir could have At the onset, the Court notes that the present case is one for damages
been saved.
Thus the appellate court disposed:
WHEREFORE, the decision of the Regional Trial
Court of Capas, Tarlac, Branch 66 in Civil Case No.
349 dated April 14, 1997 is hereby REVERSED and
SET ASIDE and a new one rendered holding the
defendants solidarily liable to plaintiffs-appellants
for the following:
1. P50,000.00 for the life of Bladimir
Cubacub;
2. P584,630.00 for loss of Bladimirs
earning capacity;
3. P4,834.60 as reimbursement of
expenses incurred at Quezon City
General Hospital as evidenced by
Exhibits E to E-14 inclusive;
4. P18,107.75 as reimbursement of
expenses for the 5-day wake covered
by Exhibits F to F-17;
5. P30,000.00 as funeral expenses at
Prudential Funeral Homes covered by
Exhibit I;
6. P6,700.00 for acquisition of memorial
lot at Sto. Rosario Memorial
Park covered by Exhibit J;
7. P50,000.00 as moral damages;
8. P20,000.00 as exemplary damages;
9. P15,000.00 as attorneys fees
and
10. Cost of suit.
SO ORDERED.[2]
The motion for reconsideration was denied by Resolution [3] of
November 26, 2001, hence this petition.
Petitioners maintain that Hao exercised the diligence more than what
the law requires, hence, they are not liable for damages.
The petition is meritorious.
TORTS – 1ST CASES - 13
based on torts, the employer-employee relationship being merely
incidental. To successfully prosecute an action anchored on torts, three
elements must be present, viz: (1) duty (2) breach (3) injury and
proximate causation. The assailed decision of the appellate court
held that it was the duty of petitioners to provide adequate medical
assistance to the employees under Art. 161 of the Labor Code, failing
which a breach is committed.
Art. 161 of the Labor Code provides:
ART. 161. Assistance of employer. It shall be the duty of any
employer to provide all the necessary assistance to
ensure the adequate and immediate medical and
dental attendance and treatment to an injured or sick
employee in case of emergency. (emphasis and
underscoring supplied)
The Implementing Rules of the Code do not enlighten what the phrase
adequate and immediate medical attendance means in relation to an
emergency. It would thus appear that the determination of what it
means is left to the employer, except when a full-time registered nurse
or physician are available on-site as required, also under the Labor
Code, specifically Art. 157 which provides:
Article 157. Emergency Medical and Dental Services. ─ It
shall be the duty of every employer to furnish his
employees in any locality with free medical and
dental attendance and facilities consisting of:
(a) The services of a full-time
registered nurse when the number of
employees exceeds fifty (50) but not
more than two hundred (200) except
when the employer does not
maintain hazardous workplaces, in
which case, the services of a
graduate first-aider shall be provided
for the protection of workers, where
no registered nurse is available. The
Secretary of Labor and Employment
shall provide by appropriate
regulations, the services that shall be
required where the number of
employees does not exceed fifty (50)
and shall determine by appropriate
order, hazardous workplaces for
purposes of this Article;
(b) The services of a full-time
registered nurse, a part-time
 TORTS – 1ST CASES - 14

physician and dentist, and an

emergency clinic, when the number
of employees exceeds two hundred
(200) but not more than three
hundred (300); and
(c) The services of a full-time
physician, dentist and a full-time
registered nurse as well as a dental
clinic and an infirmary or emergency
hospital with one bed capacity for
every one hundred (100) employees
when the number of employees
exceeds three hundred
(300). (emphasis and underscoring
supplied)
an efficient intervening cause, produces injury, and without which, the
result would not have occurred.[5] An injury or damage is proximately
caused by an act or failure to act, whenever it appears from the
evidence in the case that the act or omission played
a substantial part in bringing about or actually causing the injury or
damage, and that the injury or damage was either a direct result or
a reasonably probable consequence of the act or omission.[6]
Verily, the issue in this case is essentially factual in nature. The
dissent, apart from adopting the appellate courts findings, finds that
Bladimir contracted chicken pox from a co-worker and Hao was
negligent in not bringing that co-worker to the nearest physician, or

In the present case, there is no allegation that the company isolating him as well. This finding is not, however, borne by the
premises are hazardous. Neither is there any allegation on the number records. Nowhere in the appellate courts or even the trial courts
of employees the company has. If Haos testimony[4] would be decision is there any such definite finding that Bladimir contracted
believed, the company had only seven regular employees and 20 chicken pox from a co-worker. At best, the only allusion to another
contractual employees ─ still short of the minimum 50 workers that an employee being afflicted with chicken pox was when Hao testified that
establishment must have for it to be required to have a full-time he knew it to heal within three days as was the case of another worker,
registered nurse. without reference, however, as to when it happened.[7]

The Court can thus only determine whether the actions taken
by petitioners when Bladimir became ill amounted to the necessary On the issue of which of the two death certificates is more

assistance to ensure adequate and immediate medical . . . attendance to credible, the dissent, noting that Dr. Frias attended to Bladimir during
Bladimir as required under Art. 161 of the Labor Code. his last illness, holds that the certificate which he issued ─ citing
chicken pox as antecedent cause ─ deserves more credence.

As found by the trial court and borne by the records, petitioner

Haos advice for Bladimir to, as he did, take a 3-day rest and to later There appears, however, to be no conflict in the two death

have him brought to the nearest hospital constituted adequate and certificates on the immediate cause of Bladimirs death since both cite
immediate medical attendance that he is mandated, under Art. 161, to cardio-respiratory arrest due to complications ─ from pneumonia per
provide to a sick employee in an emergency. QCGH, septicemia and chicken pox per Dr. Frias. In fact, Dr. Frias
admitted that the causes of death in both certificates were the same. [8]

Chicken pox is self-limiting. Hao does not appear to have a

medical background. He may not be thus expected to have known that Be that as it may, Dr. Frias could not be considered as

Bladimir needed to be brought to a hospital with better facilities than Bladimirs attending physician, he having merely ordered Bladimirs
the Caybiga Hospital, contrary to appellate courts ruling. transfer to the QCGH after seeing him at the Caybiga Hospital. He
thereafter left Bladimir to the care of doctors at QCGH, returning to

AT ALL EVENTS, the alleged negligence of Hao cannot be Capas, Tarlac at 4 oclock the following morning or eight hours after
considered as the proximate cause of the death of Bladimir. Proximate seeing Bladimir. As he himself testified upon cross-examination, he
cause is that which, in natural and continuous sequence, unbroken by
 TORTS – 1ST CASES - 15

did not personally attend to Bladimir anymore once the latter was
brought to the ICU at QCGH.[9]

It bears emphasis that a duly-registered death certificate is

considered a public document and the entries therein are presumed
correct, unless the party who contests its accuracy can produce positive
evidence establishing otherwise.[10] The QCGH death certificate was
received by the City Civil Registrar on April 17, 1995. Not only was
the certificate shown by positive evidence to be inaccurate. Its
credibility, more than that issued by Dr. Frias, becomes more
pronounced as note is taken of the fact that he was not around at the
time of death.

IN FINE, petitioner company and its co-petitioner manager

Dennis Hao are not guilty of negligence.

WHEREFORE, the petition is GRANTED. The challenged

Decision of the Court of Appeals is REVERSED, and the complaint
is hereby DISMISSED.

EN BANC
G.R. No. L-48006 July 8, 1942
FAUSTO BARREDO, petitioner,
vs.
SEVERINO GARCIA and TIMOTEA ALMARIO, respondents.
Celedonio P. Gloria and Antonio Barredo for petitioner.
Jose G. Advincula for respondents.
BOCOBO, J.:
This case comes up from the Court of Appeals which held the
petitioner herein, Fausto Barredo, liable in damages for the death of
Faustino Garcia caused by the negligence of Pedro Fontanilla, a taxi
driver employed by said Fausto Barredo.
At about half past one in the morning of May 3, 1936, on the road
between Malabon and Navotas, Province of Rizal, there was a head-
on collision between a taxi of the Malate Taxicab driven by Pedro
Fontanilla and a carretela guided by Pedro Dimapalis. The carretela
was overturned, and one of its passengers, 16-year-old boy Faustino
Garcia, suffered injuries from which he died two days later. A
criminal action was filed against Fontanilla in the Court of First
Instance of Rizal, and he was convicted and sentenced to an
indeterminate sentence of one year and one day to two years
of prision correccional. The court in the criminal case granted the
petition that the right to bring a separate civil action be reserved. The
Court of Appeals affirmed the sentence of the lower court in the
criminal case. Severino Garcia and Timotea Almario, parents of the
deceased on March 7, 1939, brought an action in the Court of First
Instance of Manila against Fausto Barredo as the sole proprietor of
the Malate Taxicab and employer of Pedro Fontanilla. On July 8,
1939, the Court of First Instance of Manila awarded damages in favor
of the plaintiffs for P2,000 plus legal interest from the date of the
complaint. This decision was modified by the Court of Appeals by
reducing the damages to P1,000 with legal interest from the time the
action was instituted. It is undisputed that Fontanilla 's negligence
was the cause of the mishap, as he was driving on the wrong side of
the road, and at high speed. As to Barredo's responsibility, the Court
of Appeals found:
... It is admitted that defendant is Fontanilla's employer.
There is proof that he exercised the diligence of a good
father of a family to prevent damage. (See p. 22, appellant's
brief.) In fact it is shown he was careless in employing
Fontanilla who had been caught several times for violation
of the Automobile Law and speeding (Exhibit A) —
violation which appeared in the records of the Bureau of
Public Works available to be public and to himself.
Therefore, he must indemnify plaintiffs under the provisions
of article 1903 of the Civil Code.
The main theory of the defense is that the liability of Fausto Barredo
is governed by the Revised Penal Code; hence, his liability is only
subsidiary, and as there has been no civil action against Pedro
TORTS – 1ST CASES - 16
Fontanilla, the person criminally liable, Barredo cannot be held
responsible in the case. The petitioner's brief states on page 10:
... The Court of Appeals holds that the petitioner is being
sued for his failure to exercise all the diligence of a good
father of a family in the selection and supervision of Pedro
Fontanilla to prevent damages suffered by the respondents.
In other words, The Court of Appeals insists on applying in
the case article 1903 of the Civil Code. Article 1903 of the
Civil Code is found in Chapter II, Title 16, Book IV of the
Civil Code. This fact makes said article to a civil liability
arising from a crime as in the case at bar simply because
Chapter II of Title 16 of Book IV of the Civil Code, in the
precise words of article 1903 of the Civil Code itself, is
applicable only to "those (obligations) arising from wrongful
or negligent acts or commission not punishable by law.
The gist of the decision of the Court of Appeals is expressed thus:
... We cannot agree to the defendant's contention. The
liability sought to be imposed upon him in this action is not
a civil obligation arising from a felony or a misdemeanor
(the crime of Pedro Fontanilla,), but an obligation imposed
in article 1903 of the Civil Code by reason of his negligence
in the selection or supervision of his servant or employee.
The pivotal question in this case is whether the plaintiffs may bring
this separate civil action against Fausto Barredo, thus making him
primarily and directly, responsible under article 1903 of the Civil
Code as an employer of Pedro Fontanilla. The defendant maintains
that Fontanilla's negligence being punishable by the Penal Code, his
(defendant's) liability as an employer is only subsidiary, according to
said Penal code, but Fontanilla has not been sued in a civil action and
his property has not been exhausted. To decide the main issue, we
must cut through the tangle that has, in the minds of many confused
and jumbled together delitos and cuasi delitos, or crimes under the
Penal Code and fault or negligence under articles 1902-1910 of the
Civil Code. This should be done, because justice may be lost in a
labyrinth, unless principles and remedies are distinctly envisaged.
Fortunately, we are aided in our inquiry by the luminous presentation
of the perplexing subject by renown jurists and we are likewise
guided by the decisions of this Court in previous cases as well as by
the solemn clarity of the consideration in several sentences of the
Supreme Tribunal of Spain.
Authorities support the proposition that a quasi-delict or "culpa
aquiliana " is a separate legal institution under the Civil Code with a
substantivity all its own, and individuality that is entirely apart and
independent from delict or crime. Upon this principle and on the
wording and spirit article 1903 of the Civil Code, the primary and
direct responsibility of employers may be safely anchored.
The pertinent provisions of the Civil Code and Revised Penal Code
are as follows:
CIVIL CODE

ART. 1089 Obligations arise from law, from contracts and
quasi-contracts, and from acts and omissions which are
unlawful or in which any kind of fault or negligence
intervenes.
xxx xxx xxx
ART. 1092. Civil obligations arising from felonies or
misdemeanors shall be governed by the provisions of the
Penal Code.
ART. 1093. Those which are derived from acts or omissions
in which fault or negligence, not punishable by law,
intervenes shall be subject to the provisions of Chapter II,
Title XVI of this book.
xxx xxx xxx
ART 1902. Any person who by an act or omission causes
damage to another by his fault or negligence shall be liable
for the damage so done.
ART. 1903. The obligation imposed by the next preceding
article is enforcible, not only for personal acts and
omissions, but also for those of persons for whom another is
responsible.
The father and in, case of his death or incapacity, the
mother, are liable for any damages caused by the minor
children who live with them.
Guardians are liable for damages done by minors or
incapacitated persons subject to their authority and living
with them.
Owners or directors of an establishment or business are
equally liable for any damages caused by their employees
while engaged in the branch of the service in which
employed, or on occasion of the performance of their duties.
The State is subject to the same liability when it acts through or to the majority of the inhabitants of the town, and, in all events,
a special agent, but not if the damage shall have been caused whenever the damage has been caused with the consent of the
by the official upon whom properly devolved the duty of
doing the act performed, in which case the provisions of the
next preceding article shall be applicable.
Finally, teachers or directors of arts trades are liable for any persons using violence or causing the fear shall be primarily liable
damages caused by their pupils or apprentices while they are
under their custody.
The liability imposed by this article shall cease in case the
persons mentioned therein prove that they are exercised all
the diligence of a good father of a family to prevent the
damage.
TORTS – 1ST CASES - 17
ART. 1904. Any person who pays for damage caused by his
employees may recover from the latter what he may have
paid.
REVISED PENAL CODE
ART. 100. Civil liability of a person guilty of felony. —
Every person criminally liable for a felony is also civilly
liable.
ART. 101. Rules regarding civil liability in certain cases. —
The exemption from criminal liability established in
subdivisions 1, 2, 3, 5, and 6 of article 12 and in subdivision
4 of article 11 of this Code does not include exemption from
civil liability, which shall be enforced to the following rules:
First. In cases of subdivision, 1, 2 and 3 of article 12 the
civil liability for acts committed by any imbecile or insane
person, and by a person under nine years of age, or by one
over nine but under fifteen years of age, who has acted
without discernment shall devolve upon those having such
person under their legal authority or control, unless it
appears that there was no fault or negligence on their part.
Should there be no person having such insane, imbecile or
minor under his authority, legal guardianship, or control, or
if such person be insolvent, said insane, imbecile, or minor
shall respond with their own property, excepting property
exempt from execution, in accordance with the civil law.
Second. In cases falling within subdivision 4 of article 11,
the person for whose benefit the harm has been prevented
shall be civilly liable in proportion to the benefit which they
may have received.
The courts shall determine, in their sound discretion, the
proportionate amount for which each one shall be liable.
When the respective shares can not be equitably determined, even
approximately, or when the liability also attaches to the Government,
authorities or their agents, indemnification shall be made in the
manner prescribed by special laws or regulations.
Third. In cases falling within subdivisions 5 and 6 of article 12, the
and secondarily, or, if there be no such persons, those doing the act
shall be liable, saving always to the latter that part of their property
exempt from execution.
ART. 102. Subsidiary civil liability of innkeepers, tavern
keepers and proprietors of establishment. — In default of
persons criminally liable, innkeepers, tavern keepers, and
any other persons or corporation shall be civilly liable for
crimes committed in their establishments, in all cases where
a violation of municipal ordinances or some general or

special police regulation shall have been committed by them
or their employees.
Innkeepers are also subsidiarily liable for the restitution of
goods taken by robbery or theft within their houses lodging
therein, or the person, or for the payment of the value
thereof, provided that such guests shall have notified in
advance the innkeeper himself, or the person representing
him, of the deposit of such goods within the inn; and shall
furthermore have followed the directions which such
innkeeper or his representative may have given them with
respect to the care of and vigilance over such goods. No
liability shall attach in case of robbery with violence against
or intimidation against or intimidation of persons unless
committed by the innkeeper's employees.
ART. 103. Subsidiary civil liability of other persons. — The
subsidiary liability established in the next preceding article
shall also apply to employers, teachers, persons, and
corporations engaged in any kind of industry for felonies
committed by their servants, pupils, workmen, apprentices,
or employees in the discharge of their duties.
xxx xxx xxx
ART. 365. Imprudence and negligence. — Any person who,
by reckless imprudence, shall commit any act which, had it
been intentional, would constitute a grave felony, shall
suffer the penalty of arresto mayor in its maximum period to
prision correccional in its minimum period; if it would have
constituted a less grave felony, the penalty of arresto mayor
in its minimum and medium periods shall be imposed.
Any person who, by simple imprudence or negligence, shall
commit an act which would otherwise constitute a grave
felony, shall suffer the penalty of arresto mayor in its
medium and maximum periods; if it would have constituted
a less serious felony, the penalty of arresto mayor in its
minimum period shall be imposed."
Dorado Montero in his essay on "Responsibilidad" in the
It will thus be seen that while the terms of articles 1902 of the Civil "Enciclopedia Juridica Española" (Vol. XXVII, p. 414) says:
Code seem to be broad enough to cover the driver's negligence in the
instant case, nevertheless article 1093 limits cuasi-delitos to acts or
omissions "not punishable by law." But inasmuch as article 365 of the
Revised Penal Code punishes not only reckless but even simple
imprudence or negligence, the fault or negligence under article 1902
of the Civil Code has apparently been crowded out. It is this
overlapping that makes the "confusion worse confounded." However,
a closer study shows that such a concurrence of scope in regard to
negligent acts does not destroy the distinction between the civil
liability arising from a crime and the responsibility for cuasi-delitos
or culpa extra-contractual. The same negligent act causing damages
may produce civil liability arising from a crime under article 100 of
the Revised Penal Code, or create an action for cuasi-delito or culpa
extra-contractual under articles 1902-1910 of the Civil Code.
The individuality of cuasi-delito or culpa extra-contractual looms
clear and unmistakable. This legal institution is of ancient lineage,
one of its early ancestors being the Lex Aquilia in the Roman Law. In
TORTS – 1ST CASES - 18
fact, in Spanish legal terminology, this responsibility is often referred
to as culpa aquiliana. The Partidas also contributed to the genealogy
of the present fault or negligence under the Civil Code; for instance,
Law 6, Title 15, of Partida 7, says: "Tenudo es de fazer emienda,
porque, como quier que el non fizo a sabiendas en daño al otro, pero
acaescio por su culpa."
The distinctive nature of cuasi-delitos survives in the Civil Code.
According to article 1089, one of the five sources of obligations is
this legal institution of cuasi-delito or culpa extra-contractual: "los
actos . . . en que intervenga cualquier genero de culpa o negligencia."
Then article 1093 provides that this kind of obligation shall be
governed by Chapter II of Title XVI of Book IV, meaning articles
1902-0910. This portion of the Civil Code is exclusively devoted to
the legal institution of culpa aquiliana.
Some of the differences between crimes under the Penal Code and
the culpa aquiliana or cuasi-delito under the Civil Code are:
1. That crimes affect the public interest, while cuasi-delitos are only
of private concern.
2. That, consequently, the Penal Code punishes or corrects the
criminal act, while the Civil Code, by means of indemnification,
merely repairs the damage.
3. That delicts are not as broad as quasi-delicts, because the former
are punished only if there is a penal law clearly covering them, while
the latter, cuasi-delitos, include all acts in which "any king of fault or
negligence intervenes." However, it should be noted that not all
violations of the penal law produce civil responsibility, such as
begging in contravention of ordinances, violation of the game laws,
infraction of the rules of traffic when nobody is hurt. (See Colin and
Capitant, "Curso Elemental de Derecho Civil," Vol. 3, p. 728.)
Let us now ascertain what some jurists say on the separate existence
of quasi-delicts and the employer's primary and direct liability under
article 1903 of the Civil Code.
El concepto juridico de la responsabilidad civil abarca
diversos aspectos y comprende a diferentes personas. Asi,
existe una responsabilidad civil propiamente dicha, que en
ningun casl lleva aparejada responsabilidad criminal alguna,
y otra que es consecuencia indeclinable de la penal que nace
de todo delito o falta."
The juridical concept of civil responsibility has various
aspects and comprises different persons. Thus, there is a
civil responsibility, properly speaking, which in no case
carries with it any criminal responsibility, and another which
is a necessary consequence of the penal liability as a result
of every felony or misdemeanor."
Maura, an outstanding authority, was consulted on the following case:
There had been a collision between two trains belonging respectively

to the Ferrocarril Cantabrico and the Ferrocarril del Norte. An
employee of the latter had been prosecuted in a criminal case, in
which the company had been made a party as subsidiarily responsible
in civil damages. The employee had been acquitted in the criminal
case, and the employer, the Ferrocarril del Norte, had also been
exonerated. The question asked was whether the Ferrocarril
Cantabrico could still bring a civil action for damages against the
Ferrocarril del Norte. Maura's opinion was in the affirmative, stating
in part (Maura, Dictamenes, Vol. 6, pp. 511-513):
Quedando las cosas asi, a proposito de la realidad pura y
neta de los hechos, todavia menos parece sostenible que
exista cosa juzgada acerca de la obligacion civil de
indemnizar los quebrantos y menoscabos inferidos por el
choque de los trenes. El titulo en que se funda la accion para
demandar el resarcimiento, no puede confundirse con las
responsabilidades civiles nacidas de delito, siquiera exista
en este, sea el cual sea, una culpa rodeada de notas
agravatorias que motivan sanciones penales, mas o menos
severas. La lesion causada por delito o falta en los derechos
civiles, requiere restituciones, reparaciones o
indemnizaciones, que cual la pena misma atañen al orden
publico; por tal motivo vienen encomendadas, de ordinario,
al Ministerio Fiscal; y claro es que si por esta via se
enmiendan los quebrantos y menoscabos, el agraviado
excusa procurar el ya conseguido desagravio; pero esta
eventual coincidencia de los efectos, no borra la diversidad
originaria de las acciones civiles para pedir indemnizacion.
Estas, para el caso actual (prescindiendo de
culpas contractuales, que no vendrian a cuento y que tiene
otro regimen), dimanan, segun el articulo 1902 del Codigo
Civil, de toda accion u omision, causante de daños o
perjuicios, en que intervenga culpa o negligencia. Es trivial
que acciones semejantes son ejercitadas ante los Tribunales
de lo civil cotidianamente, sin que la Justicia punitiva tenga
que mezclarse en los asuntos. Los articulos 18 al 21 y 121 al
128 del Codigo Penal, atentos al espiritu y a los fines
sociales y politicos del mismo, desenvuelven y ordenan la
materia de responsabilidades civiles nacidas de delito, en
terminos separados del regimen por ley comun de la culpa
que se denomina aquiliana, por alusion a precedentes
legislativos del Corpus Juris. Seria intempestivo un paralelo
entre aquellas ordenaciones, y la de la obligacion de
indemnizar a titulo de culpa civil; pero viene al caso y es
necesaria una de las diferenciaciones que en el tal paralelo se
notarian.
Los articulos 20 y 21 del Codigo Penal, despues de distribuir
a su modo las responsabilidades civiles, entre los que sean
por diversos conceptos culpables del delito o falta, las hacen
extensivas a las empresas y los establecimientos al servicio
de los cuales estan los delincuentes; pero con caracter
subsidiario, o sea, segun el texto literal, en defecto de los que
sean responsables criminalmente. No coincide en ello el
Codigo Civil, cuyo articulo 1903, dice; La obligacion que
impone el articulo anterior es exigible, no solo por los actos
y omisiones propios, sino por los de aquellas personas de
quienes se debe responder; personas en la enumeracion de
las cuales figuran los dependientes y empleados de los
TORTS – 1ST CASES - 19
establecimientos o empresas, sea por actos del servicio, sea
con ocasion de sus funciones. Por esto acontece, y se
observa en la jurisprudencia, que las empresas, despues de
intervenir en las causas criminales con el caracter subsidiario
de su responsabilidad civil por razon del delito, son
demandadas y condenadas directa y aisladamente, cuando se
trata de la obligacion, ante los tribunales civiles.
Siendo como se ve, diverso el titulo de esta obligacion, y
formando verdadero postulado de nuestro regimen judicial la
separacion entre justicia punitiva y tribunales de lo civil, de
suerte que tienen unos y otros normas de fondo en distintos
cuerpos legales, y diferentes modos de proceder, habiendose,
por añadidura, abstenido de asistir al juicio criminal la
Compañia del Ferrocarril Cantabrico, que se reservo
ejercitar sus acciones, parece innegable que la de
indemnizacion por los daños y perjuicios que le irrogo el
choque, no estuvo sub judice ante el Tribunal del Jurado, ni
fue sentenciada, sino que permanecio intacta, al
pronunciarse el fallo de 21 de marzo. Aun cuando el
veredicto no hubiese sido de inculpabilidad, mostrose mas
arriba, que tal accion quedaba legitimamente reservada para
despues del proceso; pero al declararse que no existio delito,
ni responsabilidad dimanada de delito, materia unica sobre
que tenian jurisdiccion aquellos juzgadores, se redobla el
motivo para la obligacion civil ex lege, y se patentiza mas y
mas que la accion para pedir su cumplimiento permanece
incolume, extraña a la cosa juzgada.
As things are, apropos of the reality pure and simple of the
facts, it seems less tenable that there should be res
judicata with regard to the civil obligation for damages on
account of the losses caused by the collision of the trains.
The title upon which the action for reparation is based
cannot be confused with the civil responsibilities born of a
crime, because there exists in the latter, whatever each
nature, a culpa surrounded with aggravating aspects which
give rise to penal measures that are more or less severe. The
injury caused by a felony or misdemeanor upon civil rights
requires restitutions, reparations, or indemnifications which,
like the penalty itself, affect public order; for this reason,
they are ordinarily entrusted to the office of the prosecuting
attorney; and it is clear that if by this means the losses and
damages are repaired, the injured party no longer desires to
seek another relief; but this coincidence of effects does not
eliminate the peculiar nature of civil actions to ask for
indemnity.
Such civil actions in the present case (without referring to
contractual faults which are not pertinent and belong to
another scope) are derived, according to article 1902 of the
Civil Code, from every act or omission causing losses and
damages in which culpa or negligence intervenes. It is
unimportant that such actions are every day filed before the
civil courts without the criminal courts interfering therewith.
Articles 18 to 21 and 121 to 128 of the Penal Code, bearing
in mind the spirit and the social and political purposes of that
Code, develop and regulate the matter of civil
responsibilities arising from a crime, separately from the
regime under common law, of culpa which is known

as aquiliana, in accordance with legislative precedent of
the Corpus Juris. It would be unwarranted to make a
detailed comparison between the former provisions and that
regarding the obligation to indemnify on account of
civil culpa; but it is pertinent and necessary to point out to
one of such differences.
Articles 20 and 21 of the Penal Code, after distriburing in
their own way the civil responsibilities among those who,
for different reasons, are guilty of felony or misdemeanor,
make such civil responsibilities applicable to enterprises and
establishments for which the guilty parties render service,
but with subsidiary character, that is to say, according to the pp. 429, 430), declares that the responsibility of the employer is
wording of the Penal Code, in default of those who are
criminally responsible. In this regard, the Civil Code does
not coincide because article 1903 says: "The obligation
imposed by the next preceding article is demandable, not
only for personal acts and omissions, but also for those of
persons for whom another is responsible." Among the
persons enumerated are the subordinates and employees of
establishments or enterprises, either for acts during their
service or on the occasion of their functions. It is for this
reason that it happens, and it is so observed in judicial
decisions, that the companies or enterprises, after taking part
in the criminal cases because of their subsidiary civil
responsibility by reason of the crime, are sued and
sentenced directly and separately with regard to
the obligation, before the civil courts.
Seeing that the title of this obligation is different, and the
separation between punitive justice and the civil courts being
a true postulate of our judicial system, so that they have
different fundamental norms in different codes, as well as
different modes of procedure, and inasmuch as the Compaña
del Ferrocarril Cantabrico has abstained from taking part in
the criminal case and has reserved the right to exercise its
actions, it seems undeniable that the action for
indemnification for the losses and damages caused to it by
the collision was not sub judice before the Tribunal del
Jurado, nor was it the subject of a sentence, but it remained
intact when the decision of March 21 was rendered. Even if
the verdict had not been that of acquittal, it has already been
shown that such action had been legitimately reserved till
after the criminal prosecution; but because of the declaration
of the non-existence of the felony and the non-existence of
the responsibility arising from the crime, which was
the sole subject matter upon which the Tribunal del
Jurado had jurisdiction, there is greater reason for the civil
obligation ex lege, and it becomes clearer that the action for
its enforcement remain intact and is not res judicata.
Laurent, a jurist who has written a monumental work on the French
Civil Code, on which the Spanish Civil Code is largely based and
whose provisions on cuasi-delito or culpa extra-contractual are
similar to those of the Spanish Civil Code, says, referring to article
1384 of the French Civil Code which corresponds to article 1903,
Spanish Civil Code:
TORTS – 1ST CASES - 20
The action can be brought directly against the person
responsible (for another), without including the author of the
act. The action against the principal is accessory in the sense
that it implies the existence of a prejudicial act committed by
the employee, but it is not subsidiary in the sense that it can
not be instituted till after the judgment against the author of
the act or at least, that it is subsidiary to the principal action;
the action for responsibility (of the employer) is in itself a
principal action. (Laurent, Principles of French Civil Law,
Spanish translation, Vol. 20, pp. 734-735.)
Amandi, in his "Cuestionario del Codigo Civil Reformado" (Vol. 4,
principal and not subsidiary. He writes:
Cuestion 1. La responsabilidad declarada en el articulo 1903
por las acciones u omisiones de aquellas personas por las
que se debe responder, es subsidiaria? es principal? Para
contestar a esta pregunta es necesario saber, en primer lugar,
en que se funda el precepto legal. Es que realmente se
impone una responsabilidad por una falta ajena? Asi parece
a primera vista; pero semejante afirmacion seria contraria a
la justicia y a la maxima universal, segun la que las faltas
son personales, y cada uno responde de aquellas que le son
imputables. La responsabilidad de que tratamos se impone
con ocasion de un delito o culpa, pero no por causa de ellos,
sino por causa del causi delito, esto es, de la imprudencia o
de la negligencia del padre, del tutor, del dueño o director
del establecimiento, del maestro, etc. Cuando cualquiera de
las personas que enumera el articulo citado (menores de
edad, incapacitados, dependientes, aprendices) causan un
daño, la ley presume que el padre, el tutor, el maestro, etc.,
han cometido una falta de negligencia para prevenir o evitar
el daño. Esta falta es la que la ley castiga. No hay, pues,
responsabilidad por un hecho ajeno, sino en la apariencia; en
realidad la responsabilidad se exige por un hecho propio. La
idea de que esa responsabilidad sea subsidiaria es, por lo
tanto, completamente inadmisible.
Question No. 1. Is the responsibility declared in article 1903
for the acts or omissions of those persons for who one is
responsible, subsidiary or principal? In order to answer this
question it is necessary to know, in the first place, on what
the legal provision is based. Is it true that there is a
responsibility for the fault of another person? It seems so at
first sight; but such assertion would be contrary to justice
and to the universal maxim that all faults are personal, and
that everyone is liable for those faults that can be imputed to
him. The responsibility in question is imposed on the
occasion of a crime or fault, but not because of the same, but
because of the cuasi-delito, that is to say, the imprudence or
negligence of the father, guardian, proprietor or manager of
the establishment, of the teacher, etc. Whenever anyone of
the persons enumerated in the article referred to (minors,
incapacitated persons, employees, apprentices) causes any
damage, the law presumes that the father, guardian, teacher,
etc. have committed an act of negligence in not preventing
or avoiding the damage. It is this fault that is condemned by
the law. It is, therefore, only apparent that there is a
responsibility for the act of another; in reality the

responsibility exacted is for one's own act. The idea that
such responsibility is subsidiary is, therefore, completely
inadmissible.
Oyuelos, in his "Digesto: Principios, Doctrina y Jurisprudencia,
Referentes al Codigo Civil Español," says in Vol. VII, p. 743:
Es decir, no responde de hechos ajenos, porque se responde
solo de su propia culpa, doctrina del articulo 1902; mas por
excepcion, se responde de la ajena respecto de aquellas
personas con las que media algun nexo o vinculo, que
motiva o razona la responsabilidad. Esta responsabilidad, es
directa o es subsidiaria? En el orden penal, el Codigo de esta
clase distingue entre menores e incapacitados y los demas,
declarando directa la primera (articulo 19) y subsidiaria la
segunda (articulos 20 y 21); pero en el orden civil, en el caso
del articulo 1903, ha de entenderse directa, por el tenor del
articulo que impone la responsabilidad precisamente "por los
actos de aquellas personas de quienes se deba responder."
That is to say, one is not responsible for the acts of others,
because one is liable only for his own faults, this being the
doctrine of article 1902; but, by exception, one is liable for
the acts of those persons with whom there is a bond or tie
which gives rise to the responsibility. Is this responsibility
direct or subsidiary? In the order of the penal law, the Penal
Code distinguishes between minors and incapacitated
persons on the one hand, and other persons on the other,
declaring that the responsibility for the former is direct
(article 19), and for the latter, subsidiary (articles 20 and 21);
but in the scheme of the civil law, in the case of article 1903,
the responsibility should be understood as direct, according
to the tenor of that articles, for precisely it imposes
responsibility "for the acts of those persons for whom one
should be responsible."
Coming now to the sentences of the Supreme Tribunal of Spain, that
court has upheld the principles above set forth: that a quasi-
delict or culpa extra-contractual is a separate and distinct legal
institution, independent from the civil responsibility arising from
criminal liability, and that an employer is, under article 1903 of the
Civil Code, primarily and directly responsible for the negligent acts
of his employee.
One of the most important of those Spanish decisions is that of
October 21, 1910. In that case, Ramon Lafuente died as the result of
having been run over by a street car owned by the "compañia Electric
Madrileña de Traccion." The conductor was prosecuted in a criminal
case but he was acquitted. Thereupon, the widow filed a civil action
against the street car company, paying for damages in the amount of
15,000 pesetas. The lower court awarded damages; so the company
appealed to the Supreme Tribunal, alleging violation of articles 1902
and 1903 of the Civil Code because by final judgment the non-
existence of fault or negligence had been declared. The Supreme
Court of Spain dismissed the appeal, saying:
Considerando que el primer motivo del recurso se funda en
el equivocado supuesto de que el Tribunal a quo, al
condonar a la compañia Electrica Madrileña al pago del
TORTS – 1ST CASES - 21
daño causado con la muerte de Ramon La fuente Izquierdo,
desconoce el valor y efectos juridicos de la sentencia
absolutoria deictada en la causa criminal que se siguio por el
mismo hecho, cuando es lo cierto que de este han conocido
las dos jurisdicciones bajo diferentes as pectos, y como la de
lo criminal declrao dentro de los limites de su competencia
que el hecho de que se trata no era constitutivo de delito por
no haber mediado descuido o negligencia graves, lo que no
excluye, siendo este el unico fundamento del fallo
absolutorio, el concurso de la culpa o negligencia no
califacadas, fuente de obligaciones civiles segun el articulo
1902 del Codigo, y que alcanzan, segun el 1903, netre otras
perosnas, a los Directores de establecimientos o empresas
por los daños causados por sus dependientes en
determinadas condiciones, es manifesto que la de lo civil, al
conocer del mismo hehco baho este ultimo aspecto y al
condenar a la compañia recurrente a la indemnizacion del
daño causado por uno de sus empleados, lejos de infringer
los mencionados textos, en relacion con el articulo 116 de la
Ley de Enjuciamiento Criminal, se ha atenido estrictamente
a ellos, sin invadir atribuciones ajenas a su jurisdiccion
propia, ni contrariar en lo mas minimo el fallo recaido en la
causa.
Considering that the first ground of the appeal is based on
the mistaken supposition that the trial court, in sentencing
the Compañia Madrileña to the payment of the damage
caused by the death of Ramon Lafuente Izquierdo,
disregards the value and juridical effects of the sentence of
acquittal rendered in the criminal case instituted on account
of the same act, when it is a fact that the two jurisdictions
had taken cognizance of the same act in its different aspects,
and as the criminal jurisdiction declared within the limits of
its authority that the act in question did not constitute a
felony because there was no grave carelessness or
negligence, and this being the only basis of acquittal, it does
no exclude the co-existence of fault or negligence which is
not qualified, and is a source of civil obligations according
to article 1902 of the Civil Code, affecting, in accordance
with article 1903, among other persons, the managers of
establishments or enterprises by reason of the damages
caused by employees under certain conditions, it is manifest
that the civil jurisdiccion in taking cognizance of the same
act in this latter aspect and in ordering the company,
appellant herein, to pay an indemnity for the damage caused
by one of its employees, far from violating said legal
provisions, in relation with article 116 of the Law of
Criminal Procedure, strictly followed the same, without
invading attributes which are beyond its own jurisdiction,
and without in any way contradicting the decision in that
cause. (Emphasis supplied.)
It will be noted, as to the case just cited:
First. That the conductor was not sued in a civil case, either
separately or with the street car company. This is precisely what
happens in the present case: the driver, Fontanilla, has not been sued
in a civil action, either alone or with his employer.

Second. That the conductor had been acquitted of grave criminal
negligence, but the Supreme Tribunal of Spain said that this did not
exclude the co-existence of fault or negligence, which is not
qualified, on the part of the conductor, under article 1902 of the Civil
Code. In the present case, the taxi driver was found guilty of criminal
negligence, so that if he had even sued for his civil responsibility
arising from the crime, he would have been held primarily liable for
civil damages, and Barredo would have been held subsidiarily liable
for the same. But the plaintiffs are directly suing Barredo, on his
primary responsibility because of his own presumed negligence —
which he did not overcome — under article 1903. Thus, there were
two liabilities of Barredo: first, the subsidiary one because of the civil
liability of the taxi driver arising from the latter's criminal negligence;
and, second, Barredo's primary liability as an employer under article
1903. The plaintiffs were free to choose which course to take, and
they preferred the second remedy. In so doing, they were acting
within their rights. It might be observed in passing, that the plaintiff
choose the more expeditious and effective method of relief, because
Fontanilla was either in prison, or had just been released, and besides,
he was probably without property which might be seized in enforcing
any judgment against him for damages.
Third. That inasmuch as in the above sentence of October 21, 1910,
the employer was held liable civilly, notwithstanding the acquittal of
the employee (the conductor) in a previous criminal case, with greater
reason should Barredo, the employer in the case at bar, be held liable
for damages in a civil suit filed against him because his taxi driver
had been convicted. The degree of negligence of the conductor in the
Spanish case cited was less than that of the taxi driver, Fontanilla,
because the former was acquitted in the previous criminal case while
the latter was found guilty of criminal negligence and was sentenced
to an indeterminate sentence of one year and one day to two years
of prision correccional.
(See also Sentence of February 19, 1902, which is similar to the one
above quoted.)
In the Sentence of the Supreme Court of Spain, dated February 14,
1919, an action was brought against a railroad company for damages
because the station agent, employed by the company, had unjustly
and fraudulently, refused to deliver certain articles consigned to the
plaintiff. The Supreme Court of Spain held that this action was
properly under article 1902 of the Civil Code, the court saying:
Considerando que la sentencia discutida reconoce, en virtud
de los hechos que consigna con relacion a las pruebas del
pleito: 1.º, que las expediciones facturadas por la compañia
ferroviaria a la consignacion del actor de las vasijas vacias
que en su demanda relacionan tenian como fin el que este las
devolviera a sus remitentes con vinos y alcoholes; 2.º, que
llegadas a su destino tales mercanias no se quisieron entregar
a dicho consignatario por el jefe de la estacion sin motivo
justificado y con intencion dolosa, y 3.º, que la falta de
entrega de estas expediciones al tiempo de reclamarlas el
demandante le originaron daños y perjuicios en cantidad de
bastante importancia como expendedor al por mayor que era
de vinos y alcoholes por las ganancias que dejo de obtener al
verse privado de servir los pedidos que se le habian hecho
por los remitentes en los envases:
TORTS – 1ST CASES - 22
Considerando que sobre esta base hay necesidad de estimar
los cuatro motivos que integran este recurso, porque la
demanda inicial del pleito a que se contrae no contiene
accion que nazca del incumplimiento del contrato de
transporte, toda vez que no se funda en el retraso de la
llegada de las mercancias ni de ningun otro vinculo
contractual entre las partes contendientes, careciendo, por
tanto, de aplicacion el articulo 371 del Codigo de Comercio,
en que principalmente descansa el fallo recurrido, sino que
se limita a pedir la reparaction de los daños y perjuicios
producidos en el patrimonio del actor por la injustificada y
dolosa negativa del porteador a la entrega de las mercancias
a su nombre consignadas, segun lo reconoce la sentencia, y
cuya responsabilidad esta claramente sancionada en el
articulo 1902 del Codigo Civil, que obliga por el siguiente a
la Compañia demandada como ligada con el causante de
aquellos por relaciones de caracter economico y de jurarquia
administrativa.
Considering that the sentence, in question recognizes, in
virtue of the facts which it declares, in relation to the
evidence in the case: (1) that the invoice issued by the
railroad company in favor of the plaintiff contemplated that
the empty receptacles referred to in the complaint should be
returned to the consignors with wines and liquors; (2) that
when the said merchandise reached their destination, their
delivery to the consignee was refused by the station agent
without justification and with fraudulent intent, and (3) that
the lack of delivery of these goods when they were
demanded by the plaintiff caused him losses and damages of
considerable importance, as he was a wholesale vendor of
wines and liquors and he failed to realize the profits when he
was unable to fill the orders sent to him by the consignors of
the receptacles:
Considering that upon this basis there is need of upholding
the four assignments of error, as the original complaint did
not contain any cause of action arising from non-fulfillment
of a contract of transportation, because the action was not
based on the delay of the goods nor on any contractual
relation between the parties litigant and, therefore, article
371 of the Code of Commerce, on which the decision
appealed from is based, is not applicable; but it limits to
asking for reparation for losses and damages produced on
the patrimony of the plaintiff on account of the unjustified
and fraudulent refusal of the carrier to deliver the goods
consigned to the plaintiff as stated by the sentence, and the
carrier's responsibility is clearly laid down in article 1902 of
the Civil Code which binds, in virtue of the next article, the
defendant company, because the latter is connected with the
person who caused the damage by relations of economic
character and by administrative hierarchy. (Emphasis
supplied.)
The above case is pertinent because it shows that the same act may
come under both the Penal Code and the Civil Code. In that case, the
action of the agent was unjustified and fraudulent and therefore could
have been the subject of a criminal action. And yet, it was held to be
also a proper subject of a civil action under article 1902 of the Civil

Code. It is also to be noted that it was the employer and not the
employee who was being sued.
Let us now examine the cases previously decided by this Court.
In the leading case of Rakes vs. Atlantic Gulf and Pacific Co. (7 Phil.,
359, 362-365 [year 1907]), the trial court awarded damages to the
plaintiff, a laborer of the defendant, because the latter had negligently
failed to repair a tramway in consequence of which the rails slid off
while iron was being transported, and caught the plaintiff whose leg
was broken. This Court held:
It is contended by the defendant, as its first defense to the
action that the necessary conclusion from these collated laws
is that the remedy for injuries through negligence lies only in
a criminal action in which the official criminally responsible
must be made primarily liable and his employer held only
subsidiarily to him. According to this theory the plaintiff
should have procured the arrest of the representative of the
company accountable for not repairing the track, and on his
prosecution a suitable fine should have been imposed,
payable primarily by him and secondarily by his employer.
This reasoning misconceived the plan of the Spanish codes
upon this subject. Article 1093 of the Civil Code makes
obligations arising from faults or negligence not punished by
the law, subject to the provisions of Chapter II of Title XVI.
Section 1902 of that chapter reads:
"A person who by an act or omission causes
damage to another when there is fault or negligence
shall be obliged to repair the damage so done.
"SEC. 1903. The obligation imposed by the
preceeding article is demandable, not only for
personal acts and omissions, but also for those of
the persons for whom they should be responsible.
"The father, and on his death or incapacity, the
mother, is liable for the damages caused by the
minors who live with them.
xxx xxx xxx
"Owners or directors of an establishment or
enterprise are equally liable for the damages caused
by their employees in the service of the branches in
which the latter may be employed or in the
performance of their duties.
xxx xxx xxx
"The liability referred to in this article shall cease
when the persons mentioned therein prove that they
employed all the diligence of a good father of a
family to avoid the damage."
TORTS – 1ST CASES - 23
As an answer to the argument urged in this particular action
it may be sufficient to point out that nowhere in our general
statutes is the employer penalized for failure to provide or
maintain safe appliances for his workmen. His obligation
therefore is one 'not punished by the laws' and falls under
civil rather than criminal jurisprudence. But the answer may
be a broader one. We should be reluctant, under any
conditions, to adopt a forced construction of these scientific
codes, such as is proposed by the defendant, that would rob
some of these articles of effect, would shut out litigants
against their will from the civil courts, would make the
assertion of their rights dependent upon the selection for
prosecution of the proper criminal offender, and render
recovery doubtful by reason of the strict rules of proof
prevailing in criminal actions. Even if these articles had
always stood alone, such a construction would be
unnecessary, but clear light is thrown upon their meaning by
the provisions of the Law of Criminal Procedure of Spain
(Ley de Enjuiciamiento Criminal), which, though never in
actual force in these Islands, was formerly given a
suppletory or explanatory effect. Under article 111 of this
law, both classes of action, civil and criminal, might be
prosecuted jointly or separately, but while the penal action
was pending the civil was suspended. According to article
112, the penal action once started, the civil remedy should
be sought therewith, unless it had been waived by the party
injured or been expressly reserved by him for civil
proceedings for the future. If the civil action alone was
prosecuted, arising out of a crime that could be enforced
only on private complaint, the penal action thereunder
should be extinguished. These provisions are in harmony
with those of articles 23 and 133 of our Penal Code on the
same subject.
An examination of this topic might be carried much further,
but the citation of these articles suffices to show that the
civil liability was not intended to be merged in the criminal
nor even to be suspended thereby, except as expressly
provided in the law. Where an individual is civilly liable for
a negligent act or omission, it is not required that the injured
party should seek out a third person criminally liable whose
prosecution must be a condition precedent to the
enforcement of the civil right.
Under article 20 of the Penal Code the responsibility of an
employer may be regarded as subsidiary in respect of
criminal actions against his employees only while they are in
process of prosecution, or in so far as they determine the
existence of the criminal act from which liability arises, and
his obligation under the civil law and its enforcement in the
civil courts is not barred thereby unless by the election of the
injured person. Inasmuch as no criminal proceeding had
been instituted, growing our of the accident in question, the
provisions of the Penal Code can not affect this action. This
construction renders it unnecessary to finally determine here
whether this subsidiary civil liability in penal actions has
survived the laws that fully regulated it or has been
abrogated by the American civil and criminal procedure now
in force in the Philippines.

The difficulty in construing the articles of the code above
cited in this case appears from the briefs before us to have
arisen from the interpretation of the words of article 1093,
"fault or negligence not punished by law," as applied to the
comprehensive definition of offenses in articles 568 and 590
of the Penal Code. It has been shown that the liability of an
employer arising out of his relation to his employee who is
the offender is not to be regarded as derived from negligence
punished by the law, within the meaning of articles 1902 and
1093. More than this, however, it cannot be said to fall
within the class of acts unpunished by the law, the
consequence of which are regulated by articles 1902 and
1903 of the Civil Code. The acts to which these articles are
applicable are understood to be those not growing out of pre-
existing duties of the parties to one another. But where
relations already formed give rise to duties, whether
springing from contract or quasi contract, then breaches of
those duties are subject to articles 1101, 1103, and 1104 of
the same code. A typical application of this distinction may
be found in the consequences of a railway accident due to
defective machinery supplied by the employer. His liability
to his employee would arise out of the contract of
employment, that to the passengers out of the contract for
passage, while that to the injured bystander would originate
in the negligent act itself.
In Manzanares vs. Moreta, 38 Phil., 821 (year 1918), the mother of
the 8 of 9-year-old child Salvador Bona brought a civil action against
Moreta to recover damages resulting from the death of the child, who
had been run over by an automobile driven and managed by the
defendant. The trial court rendered judgment requiring the defendant
to pay the plaintiff the sum of P1,000 as indemnity: This Court in
affirming the judgment, said in part:
If it were true that the defendant, in coming from the
southern part of Solana Street, had to stop his auto before
crossing Real Street, because he had met vehicles which
were going along the latter street or were coming from the
opposite direction along Solana Street, it is to be believed
that, when he again started to run his auto across said Real
Street and to continue its way along Solana Street
northward, he should have adjusted the speed of the auto
which he was operating until he had fully crossed Real
Street and had completely reached a clear way on Solana
Street. But, as the child was run over by the auto precisely at
the entrance of Solana Street, this accident could not have
occurred if the auto had been running at a slow speed, aside
from the fact that the defendant, at the moment of crossing
Real Street and entering Solana Street, in a northward
direction, could have seen the child in the act of crossing the
latter street from the sidewalk on the right to that on the left,
and if the accident had occurred in such a way that after the
automobile had run over the body of the child, and the
child's body had already been stretched out on the ground,
the automobile still moved along a distance of about 2
meters, this circumstance shows the fact that the automobile
entered Solana Street from Real Street, at a high speed
without the defendant having blown the horn. If these
precautions had been taken by the defendant, the deplorable
TORTS – 1ST CASES - 24
accident which caused the death of the child would not have
occurred.
It will be noticed that the defendant in the above case could have been
prosecuted in a criminal case because his negligence causing the
death of the child was punishable by the Penal Code. Here is
therefore a clear instance of the same act of negligence being a proper
subject-matter either of a criminal action with its consequent civil
liability arising from a crime or of an entirely separate and
independent civil action for fault or negligence under article 1902 of
the Civil Code. Thus, in this jurisdiction, the separate individually of
a cuasi-delito or culpa aquiliana under the Civil Code has been fully
and clearly recognized, even with regard to a negligent act for which
the wrongdoer could have been prosecuted and convicted in a
criminal case and for which, after such a conviction, he could have
been sued for this civil liability arising from his crime.
Years later (in 1930) this Court had another occasion to apply the
same doctrine. In Bernal and Enverso vs. House and Tacloban
Electric & Ice Plant, Ltd., 54 Phil., 327, the parents of the five-year-
old child, Purificacion Bernal, brought a civil action to recover
damages for the child's death as a result of burns caused by the fault
and negligence of the defendants. On the evening of April 10, 1925,
the Good Friday procession was held in Tacloban, Leyte. Fortunata
Enverso with her daughter Purificacion Bernal had come from
another municipality to attend the same. After the procession the
mother and the daughter with two others were passing along Gran
Capitan Street in front of the offices of the Tacloban Electric & Ice
Plant, Ltd., owned by defendants J. V. House, when an automobile
appeared from the opposite direction. The little girl, who was slightly
ahead of the rest, was so frightened by the automobile that she turned
to run, but unfortunately she fell into the street gutter where hot water
from the electric plant was flowing. The child died that same night
from the burns. The trial courts dismissed the action because of the
contributory negligence of the plaintiffs. But this Court held, on
appeal, that there was no contributory negligence, and allowed the
parents P1,000 in damages from J. V. House who at the time of the
tragic occurrence was the holder of the franchise for the electric plant.
This Court said in part:
Although the trial judge made the findings of fact
hereinbefore outlined, he nevertheless was led to order the
dismissal of the action because of the contributory
negligence of the plaintiffs. It is from this point that a
majority of the court depart from the stand taken by the trial
judge. The mother and her child had a perfect right to be on
the principal street of Tacloban, Leyte, on the evening when
the religious procession was held. There was nothing
abnormal in allowing the child to run along a few paces in
advance of the mother. No one could foresee the coincidence
of an automobile appearing and of a frightened child running
and falling into a ditch filled with hot water. The doctrine
announced in the much debated case of Rakes vs. Atlantic
Gulf and Pacific Co. ([1907]), 7 Phil., 359), still rule. Article
1902 of the Civil Code must again be enforced. The
contributory negligence of the child and her mother, if any,
does not operate as a bar to recovery, but in its strictest sense
could only result in reduction of the damages.

It is most significant that in the case just cited, this Court specifically
applied article 1902 of the Civil Code. It is thus that although J. V.
House could have been criminally prosecuted for reckless or simple
negligence and not only punished but also made civilly liable because
of his criminal negligence, nevertheless this Court awarded damages
in an independent civil action for fault or negligence under article
1902 of the Civil Code.
In Bahia vs. Litonjua and Leynes (30 Phil., 624 [year 1915), the
action was for damages for the death of the plaintiff's daughter
alleged to have been caused by the negligence of the servant in
driving an automobile over the child. It appeared that the cause of the
mishap was a defect in the steering gear. The defendant Leynes had
rented the automobile from the International Garage of Manila, to be
used by him in carrying passengers during the fiesta of Tuy,
Batangas. Leynes was ordered by the lower court to pay P1,000 as
damages to the plaintiff. On appeal this Court reversed the judgment
as to Leynes on the ground that he had shown that the exercised the
care of a good father of a family, thus overcoming the presumption of
negligence under article 1903. This Court said:
As to selection, the defendant has clearly shown that he
exercised the care and diligence of a good father of a family. reckless negligence and were sentenced accordingly. This Court,
He obtained the machine from a reputable garage and it was, applying articles 1902 and 1903, held:
so far as appeared, in good condition. The workmen were
likewise selected from a standard garage, were duly licensed
by the Government in their particular calling, and apparently
thoroughly competent. The machine had been used but a few
hours when the accident occurred and it is clear from the
evidence that the defendant had no notice, either actual or
constructive, of the defective condition of the steering gear.
The legal aspect of the case was discussed by this Court thus:
Article 1903 of the Civil Code not only establishes liability
in cases of negligence, but also provides when the liability
shall cease. It says:
"The liability referred to in this article shall cease
when the persons mentioned therein prove that they
employed all the diligence of a good father of a
family to avoid the damage."
From this article two things are apparent: (1) That when an
injury is caused by the negligence of a servant or employee
there instantly arises a presumption of law that there was
negligence on the part of the matter or employer either in the
selection of the servant or employee, or in supervision over
him after the selection, or both; and (2) that presumption
is juris tantum and not juris et de jure, and consequently,
may be rebutted. It follows necessarily that if the employer
shows to the satisfaction of the court that in selection and
supervision he has exercised the care and diligence of a good
father of a family, the presumption is overcome and he is
relieve from liability.
This theory bases the responsibility of the master ultimately
on his own negligence and not on that of his servant.
TORTS – 1ST CASES - 25
The doctrine of the case just cited was followed by this Court in Cerf
vs. Medel (33 Phil., 37 [year 1915]). In the latter case, the complaint
alleged that the defendant's servant had so negligently driven an
automobile, which was operated by defendant as a public vehicle, that
said automobile struck and damaged the plaintiff's motorcycle. This
Court, applying article 1903 and following the rule in Bahia vs.
Litonjua and Leynes, said in part (p. 41) that:
The master is liable for the negligent acts of his servant
where he is the owner or director of a business or enterprise
and the negligent acts are committed while the servant is
engaged in his master's employment as such owner.
Another case which followed the decision in Bahia vs. Litonjua and
Leynes was Cuison vs. Norton & Harrison Co., 55 Phil., 18 (year
1930). The latter case was an action for damages brought by Cuison
for the death of his seven-year-old son Moises. The little boy was on
his way to school with his sister Marciana. Some large pieces of
lumber fell from a truck and pinned the boy underneath, instantly
killing him. Two youths, Telesforo Binoya and Francisco Bautista,
who were working for Ora, an employee of defendant Norton &
Harrison Co., pleaded guilty to the crime of homicide through
The basis of civil law liability is not respondent superior but
the relationship of pater familias. This theory bases the
liability of the master ultimately on his own negligence and
not on that of his servant. (Bahia vs.Litonjua and Leynes
[1915], 30 Phil., 624; Cangco vs. Manila Railroad Co.
[1918], 38 Phil., 768.)
In Walter A. Smith & Co. vs. Cadwallader Gibson Lumber Co., 55
Phil., 517 (year 1930) the plaintiff brought an action for damages for
the demolition of its wharf, which had been struck by the steamer
Helen C belonging to the defendant. This Court held (p. 526):
The evidence shows that Captain Lasa at the time the
plaintiff's wharf collapsed was a duly licensed captain,
authorized to navigate and direct a vessel of any tonnage,
and that the appellee contracted his services because of his
reputation as a captain, according to F. C. Cadwallader. This
being so, we are of the opinion that the presumption of
liability against the defendant has been overcome by the
exercise of the care and diligence of a good father of a
family in selecting Captain Lasa, in accordance with the
doctrines laid down by this court in the cases cited above,
and the defendant is therefore absolved from all liability.
It is, therefore, seen that the defendant's theory about his secondary
liability is negatived by the six cases above set forth. He is, on the
authority of these cases, primarily and directly responsible in
damages under article 1903, in relation to article 1902, of the Civil
Code.
Let us now take up the Philippine decisions relied upon by the
defendant. We study first, City of Manila vs. Manila Electric Co., 52
Phil., 586 (year 1928). A collision between a truck of the City of
Manila and a street car of the Manila Electric Co. took place on June

8, 1925. The truck was damaged in the amount of P1,788.27. Sixto
Eustaquio, the motorman, was prosecuted for the crime of damage to
property and slight injuries through reckless imprudence. He was
found guilty and sentenced to pay a fine of P900, to indemnify the
City of Manila for P1,788.27, with subsidiary imprisonment in case
of insolvency. Unable to collect the indemnity from Eustaquio, the
City of Manila filed an action against the Manila Electric Company to
obtain payment, claiming that the defendant was subsidiarily liable.
The main defense was that the defendant had exercised the diligence
of a good father of a family to prevent the damage. The lower court
rendered judgment in favor of the plaintiff. This Court held, in part,
that this case was governed by the Penal Code, saying:
With this preliminary point out of the way, there is no
escaping the conclusion that the provisions of the Penal
Code govern. The Penal Code in easily understandable
language authorizes the determination of subsidiary liability.
The Civil Code negatives its application by providing that
civil obligations arising from crimes or misdemeanors shall
be governed by the provisions of the Penal Code. The
conviction of the motorman was a misdemeanor falling
under article 604 of the Penal Code. The act of the
motorman was not a wrongful or negligent act or omission
not punishable by law. Accordingly, the civil obligation
connected up with the Penal Code and not with article 1903
of the Civil Code. In other words, the Penal Code affirms its
jurisdiction while the Civil Code negatives its jurisdiction.
This is a case of criminal negligence out of which civil
liability arises and not a case of civil negligence.
xxx xxx xxx
Our deduction, therefore, is that the case relates to the Penal
Code and not to the Civil Code. Indeed, as pointed out by
the trial judge, any different ruling would permit the master
to escape scot-free by simply alleging and proving that the
master had exercised all diligence in the selection and
training of its servants to prevent the damage. That would be
a good defense to a strictly civil action, but might or might
not be to a civil action either as a part of or predicated on
conviction for a crime or misdemeanor. (By way of
parenthesis, it may be said further that the statements here
made are offered to meet the argument advanced during our
deliberations to the effect that article 0902 of the Civil Code
should be disregarded and codal articles 1093 and 1903
applied.)
It is not clear how the above case could support the defendant's
proposition, because the Court of Appeals based its decision in the
present case on the defendant's primary responsibility under article
1903 of the Civil Code and not on his subsidiary liability arising from case the defendant-petitioner — is primarily and directly liable under
Fontanilla's criminal negligence. In other words, the case of City of
Manila vs. Manila Electric Co., supra, is predicated on an entirely
different theory, which is the subsidiary liability of an employer
arising from a criminal act of his employee, whereas the foundation
of the decision of the Court of Appeals in the present case is the
employer's primary liability under article 1903 of the Civil Code. We it might not be inappropriate to indicate their foundations.
have already seen that this is a proper and independent remedy.
TORTS – 1ST CASES - 26
Arambulo vs. Manila Electric Co. (55 Phil., 75), is another case
invoked by the defendant. A motorman in the employ of the Manila
Electric Company had been convicted o homicide by simple
negligence and sentenced, among other things, to pay the heirs of the
deceased the sum of P1,000. An action was then brought to enforce
the subsidiary liability of the defendant as employer under the Penal
Code. The defendant attempted to show that it had exercised the
diligence of a good father of a family in selecting the motorman, and
therefore claimed exemption from civil liability. But this Court held:
In view of the foregoing considerations, we are of opinion
and so hold, (1) that the exemption from civil liability
established in article 1903 of the Civil Code for all who have
acted with the diligence of a good father of a family, is not
applicable to the subsidiary civil liability provided in article
20 of the Penal Code.
The above case is also extraneous to the theory of the defendant in the
instant case, because the action there had for its purpose the
enforcement of the defendant's subsidiary liability under the Penal
Code, while in the case at bar, the plaintiff's cause of action is based
on the defendant's primary and direct responsibility under article
1903 of the Civil Code. In fact, the above case destroys the
defendant's contention because that decision illustrates the principle
that the employer's primary responsibility under article 1903 of the
Civil Code is different in character from his subsidiary liability under
the Penal Code.
In trying to apply the two cases just referred to, counsel for the
defendant has failed to recognize the distinction between civil
liability arising from a crime, which is governed by the Penal Code,
and the responsibility for cuasi-delito or culpa aquiliana under the
Civil Code, and has likewise failed to give the importance to the latter
type of civil action.
The defendant-petitioner also cites Francisco vs. Onrubia (46 Phil.,
327). That case need not be set forth. Suffice it to say that the
question involved was also civil liability arising from a crime. Hence,
it is as inapplicable as the two cases above discussed.
The foregoing authorities clearly demonstrate the separate
individuality of cuasi-delitos or culpa aquiliana under the Civil Code.
Specifically they show that there is a distinction between civil
liability arising from criminal negligence (governed by the Penal
Code) and responsibility for fault or negligence under articles 1902 to
1910 of the Civil Code, and that the same negligent act may produce
either a civil liability arising from a crime under the Penal Code, or a
separate responsibility for fault or negligence under articles 1902 to
1910 of the Civil Code. Still more concretely, the authorities above
cited render it inescapable to conclude that the employer — in this
article 1903 of the Civil Code.
The legal provisions, authors, and cases already invoked should
ordinarily be sufficient to dispose of this case. But inasmuch as we
are announcing doctrines that have been little understood in the past,
 TORTS – 1ST CASES - 27

Firstly, the Revised Penal Code in article 365 punishes not only employee because of his confidence in the principal or director."
reckless but also simple negligence. If we were to hold that articles (Vol. 12, p. 622, 2nd Ed.) Many jurists also base this primary
1902 to 1910 of the Civil Code refer only to fault or negligence not responsibility of the employer on the principle of representation of
punished by law, according to the literal import of article 1093 of the the principal by the agent. Thus, Oyuelos says in the work already
Civil Code, the legal institution of culpa aquiliana would have very cited (Vol. 7, p. 747) that before third persons the employer and
little scope and application in actual life. Death or injury to persons employee "vienen a ser como una sola personalidad, por refundicion
and damage to property through any degree of negligence — even the de la del dependiente en la de quien le emplea y utiliza." ("become as
slightest — would have to be indemnified only through the principle one personality by the merging of the person of the employee in that
of civil liability arising from a crime. In such a state of affairs, what of him who employs and utilizes him.") All these observations
sphere would remain for cuasi-delito or culpa aquiliana? We are acquire a peculiar force and significance when it comes to motor
loath to impute to the lawmaker any intention to bring about a accidents, and there is need of stressing and accentuating the
situation so absurd and anomalous. Nor are we, in the interpretation responsibility of owners of motor vehicles.
of the laws, disposed to uphold the letter that killeth rather than the
spirit that giveth life. We will not use the literal meaning of the law to
Fourthly, because of the broad sweep of the provisions of both the
smother and render almost lifeless a principle of such ancient origin Penal Code and the Civil Code on this subject, which has given rise
and such full-grown development as culpa aquiliana or cuasi-delito, to the overlapping or concurrence of spheres already discussed, and
which is conserved and made enduring in articles 1902 to 1910 of the for lack of understanding of the character and efficacy of the action
Spanish Civil Code. for culpa aquiliana, there has grown up a common practice to seek
damages only by virtue of the civil responsibility arising from a
Secondly, to find the accused guilty in a criminal case, proof of guilt crime, forgetting that there is another remedy, which is by invoking
beyond reasonable doubt is required, while in a civil case, articles 1902-1910 of the Civil Code. Although this habitual method
preponderance of evidence is sufficient to make the defendant pay in is allowed by our laws, it has nevertheless rendered practically
damages. There are numerous cases of criminal negligence which can useless and nugatory the more expeditious and effective remedy
not be shown beyond reasonable doubt, but can be proved by a based on culpa aquiliana or culpa extra-contractual. In the present
preponderance of evidence. In such cases, the defendant can and case, we are asked to help perpetuate this usual course. But we
should be made responsible in a civil action under articles 1902 to believe it is high time we pointed out to the harm done by such
1910 of the Civil Code. Otherwise, there would be many instances of practice and to restore the principle of responsibility for fault or
unvindicated civil wrongs. Ubi jus ibi remedium. negligence under articles 1902 et seq. of the Civil Code to its full
rigor. It is high time we caused the stream of quasi-delict or culpa
Thirdly, to hold that there is only one way to make defendant's aquiliana to flow on its own natural channel, so that its waters may
liability effective, and that is, to sue the driver and exhaust his (the no longer be diverted into that of a crime under the Penal Code. This
latter's) property first, would be tantamount to compelling the will, it is believed, make for the better safeguarding of private rights
plaintiff to follow a devious and cumbersome method of obtaining because it re-establishes an ancient and additional remedy, and for the
relief. True, there is such a remedy under our laws, but there is also a further reason that an independent civil action, not depending on the
more expeditious way, which is based on the primary and direct issues, limitations and results of a criminal prosecution, and entirely
responsibility of the defendant under article 1903 of the Civil Code. directed by the party wronged or his counsel, is more likely to secure
Our view of the law is more likely to facilitate remedy for civil adequate and efficacious redress.
wrongs, because the procedure indicated by the defendant is wasteful
and productive of delay, it being a matter of common knowledge that In view of the foregoing, the judgment of the Court of Appeals should
professional drivers of taxis and similar public conveyance usually do be and is hereby affirmed, with costs against the defendant-petitioner.
not have sufficient means with which to pay damages. Why, then,
should the plaintiff be required in all cases to go through this Yulo, C.J., Moran, Ozaeta a
roundabout, unnecessary, and probably useless procedure? In
construing the laws, courts have endeavored to shorten and facilitate
the pathways of right and justice.

At this juncture, it should be said that the primary and direct

responsibility of employers and their presumed negligence are
principles calculated to protect society. Workmen and employees
should be carefully chosen and supervised in order to avoid injury to
the public. It is the masters or employers who principally reap the
profits resulting from the services of these servants and employees. It
is but right that they should guarantee the latter's careful conduct for
the personnel and patrimonial safety of others. As Theilhard has said,
"they should reproach themselves, at least, some for their weakness,
others for their poor selection and all for their negligence." And
according to Manresa, "It is much more equitable and just that such
responsibility should fall upon the principal or director who could
have chosen a careful and prudent employee, and not upon the injured
person who could not exercise such selection and who used such
 TORTS – 1ST CASES - 28

EN BANC was so placed of melons and the edge of platform; and it is clear that
the fall of the plaintiff was due to the fact that his foot alighted upon
G.R. No. L-12191 October 14, 1918 one of these melons at the moment he stepped upon the platform. His
statement that he failed to see these objects in the darkness is readily
to be credited.
JOSE CANGCO, plaintiff-appellant,
vs.
MANILA RAILROAD CO., defendant-appellee. The plaintiff was drawn from under the car in an unconscious
condition, and it appeared that the injuries which he had received
were very serious. He was therefore brought at once to a certain
Ramon Sotelo for appellant.
hospital in the city of Manila where an examination was made and his
Kincaid & Hartigan for appellee.
arm was amputated. The result of this operation was unsatisfactory,
and the plaintiff was then carried to another hospital where a second
operation was performed and the member was again amputated
higher up near the shoulder. It appears in evidence that the plaintiff
expended the sum of P790.25 in the form of medical and surgical fees
FISHER, J.: and for other expenses in connection with the process of his curation.

At the time of the occurrence which gave rise to this litigation the Upon August 31, 1915, he instituted this proceeding in the Court of
plaintiff, Jose Cangco, was in the employment of Manila Railroad First Instance of the city of Manila to recover damages of the
Company in the capacity of clerk, with a monthly wage of P25. He defendant company, founding his action upon the negligence of the
lived in the pueblo of San Mateo, in the province of Rizal, which is servants and employees of the defendant in placing the sacks of
located upon the line of the defendant railroad company; and in melons upon the platform and leaving them so placed as to be a
coming daily by train to the company's office in the city of Manila menace to the security of passenger alighting from the company's
where he worked, he used a pass, supplied by the company, which trains. At the hearing in the Court of First Instance, his Honor, the
entitled him to ride upon the company's trains free of charge. Upon trial judge, found the facts substantially as above stated, and drew
the occasion in question, January 20, 1915, the plaintiff arose from therefrom his conclusion to the effect that, although negligence was
his seat in the second class-car where he was riding and, making, his attributable to the defendant by reason of the fact that the sacks of
exit through the door, took his position upon the steps of the coach, melons were so placed as to obstruct passengers passing to and from
seizing the upright guardrail with his right hand for support. the cars, nevertheless, the plaintiff himself had failed to use due
caution in alighting from the coach and was therefore precluded form
On the side of the train where passengers alight at the San Mateo recovering. Judgment was accordingly entered in favor of the
station there is a cement platform which begins to rise with a defendant company, and the plaintiff appealed.
moderate gradient some distance away from the company's office and
extends along in front of said office for a distance sufficient to cover It can not be doubted that the employees of the railroad company
the length of several coaches. As the train slowed down another were guilty of negligence in piling these sacks on the platform in the
passenger, named Emilio Zuñiga, also an employee of the railroad manner above stated; that their presence caused the plaintiff to fall as
company, got off the same car, alighting safely at the point where the he alighted from the train; and that they therefore constituted an
platform begins to rise from the level of the ground. When the train effective legal cause of the injuries sustained by the plaintiff. It
had proceeded a little farther the plaintiff Jose Cangco stepped off necessarily follows that the defendant company is liable for the
also, but one or both of his feet came in contact with a sack of damage thereby occasioned unless recovery is barred by the plaintiff's
watermelons with the result that his feet slipped from under him and own contributory negligence. In resolving this problem it is necessary
he fell violently on the platform. His body at once rolled from the that each of these conceptions of liability, to-wit, the primary
platform and was drawn under the moving car, where his right arm responsibility of the defendant company and the contributory
was badly crushed and lacerated. It appears that after the plaintiff negligence of the plaintiff should be separately examined.
alighted from the train the car moved forward possibly six meters
before it came to a full stop. It is important to note that the foundation of the legal liability of the
defendant is the contract of carriage, and that the obligation to
The accident occurred between 7 and 8 o'clock on a dark night, and as respond for the damage which plaintiff has suffered arises, if at all,
the railroad station was lighted dimly by a single light located some from the breach of that contract by reason of the failure of defendant
distance away, objects on the platform where the accident occurred to exercise due care in its performance. That is to say, its liability is
were difficult to discern especially to a person emerging from a direct and immediate, differing essentially, in legal viewpoint from
lighted car. that presumptive responsibility for the negligence of its servants,
imposed by article 1903 of the Civil Code, which can be rebutted by
The explanation of the presence of a sack of melons on the platform proof of the exercise of due care in their selection and supervision.
where the plaintiff alighted is found in the fact that it was the Article 1903 of the Civil Code is not applicable to obligations arising
customary season for harvesting these melons and a large lot had ex contractu, but only to extra-contractual obligations — or to use the
been brought to the station for the shipment to the market. They were technical form of expression, that article relates only
contained in numerous sacks which has been piled on the platform in to culpa aquiliana and not to culpa contractual.
a row one upon another. The testimony shows that this row of sacks

Manresa (vol. 8, p. 67) in his commentaries upon articles 1103 and
1104 of the Civil Code, clearly points out this distinction, which was
also recognized by this Court in its decision in the case of
Rakes vs. Atlantic, Gulf and Pacific Co. (7 Phil. rep., 359). In
commenting upon article 1093 Manresa clearly points out the
difference between "culpa, substantive and independent, which of
itself constitutes the source of an obligation between persons not
formerly connected by any legal tie" and culpa considered as an
accident in the performance of an obligation already existing . . . ."
In the Rakes case (supra) the decision of this court was made to rest
squarely upon the proposition that article 1903 of the Civil Code is
not applicable to acts of negligence which constitute the breach of a
contract.
Upon this point the Court said:
The acts to which these articles [1902 and 1903 of the Civil
Code] are applicable are understood to be those not growing
out of pre-existing duties of the parties to one another. But
where relations already formed give rise to duties, whether
springing from contract or quasi-contract, then breaches of
those duties are subject to article 1101, 1103, and 1104 of
the same code. (Rakes vs. Atlantic, Gulf and Pacific Co., 7
Phil. Rep., 359 at 365.)
This distinction is of the utmost importance. The liability, which,
under the Spanish law, is, in certain cases imposed upon employers
with respect to damages occasioned by the negligence of their
employees to persons to whom they are not bound by contract, is not
based, as in the English Common Law, upon the principle
of respondeat superior — if it were, the master would be liable in
every case and unconditionally — but upon the principle announced
in article 1902 of the Civil Code, which imposes upon all persons
who by their fault or negligence, do injury to another, the obligation
of making good the damage caused. One who places a powerful
automobile in the hands of a servant whom he knows to be ignorant
of the method of managing such a vehicle, is himself guilty of an act
of negligence which makes him liable for all the consequences of his
imprudence. The obligation to make good the damage arises at the
very instant that the unskillful servant, while acting within the scope
of his employment causes the injury. The liability of the master is
personal and direct. But, if the master has not been guilty of any
negligence whatever in the selection and direction of the servant, he
is not liable for the acts of the latter, whatever done within the scope
of his employment or not, if the damage done by the servant does not
amount to a breach of the contract between the master and the person
injured.
It is not accurate to say that proof of diligence and care in the
selection and control of the servant relieves the master from liability
for the latter's acts — on the contrary, that proof shows that the
responsibility has never existed. As Manresa says (vol. 8, p. 68) the
liability arising from extra-contractual culpa is always based upon a
voluntary act or omission which, without willful intent, but by mere
negligence or inattention, has caused damage to another. A master
who exercises all possible care in the selection of his servant, taking
into consideration the qualifications they should possess for the
discharge of the duties which it is his purpose to confide to them, and
TORTS – 1ST CASES - 29
directs them with equal diligence, thereby performs his duty to third
persons to whom he is bound by no contractual ties, and he incurs no
liability whatever if, by reason of the negligence of his servants, even
within the scope of their employment, such third person suffer
damage. True it is that under article 1903 of the Civil Code the law
creates a presumption that he has been negligent in the selection or
direction of his servant, but the presumption is rebuttable and yield to
proof of due care and diligence in this respect.
The supreme court of Porto Rico, in interpreting identical provisions,
as found in the Porto Rico Code, has held that these articles are
applicable to cases of extra-contractual culpa exclusively.
(Carmona vs. Cuesta, 20 Porto Rico Reports, 215.)
This distinction was again made patent by this Court in its decision in
the case of Bahia vs. Litonjua and Leynes, (30 Phil. rep., 624), which
was an action brought upon the theory of the extra-contractual
liability of the defendant to respond for the damage caused by the
carelessness of his employee while acting within the scope of his
employment. The Court, after citing the last paragraph of article 1903
of the Civil Code, said:
From this article two things are apparent: (1) That when an
injury is caused by the negligence of a servant or employee
there instantly arises a presumption of law that there was
negligence on the part of the master or employer either in
selection of the servant or employee, or in supervision over
him after the selection, or both; and (2) that that presumption
is juris tantum and not juris et de jure, and consequently,
may be rebutted. It follows necessarily that if the employer
shows to the satisfaction of the court that in selection and
supervision he has exercised the care and diligence of a good
father of a family, the presumption is overcome and he is
relieved from liability.
This theory bases the responsibility of the master ultimately
on his own negligence and not on that of his servant. This is
the notable peculiarity of the Spanish law of negligence. It
is, of course, in striking contrast to the American doctrine
that, in relations with strangers, the negligence of the servant
in conclusively the negligence of the master.
The opinion there expressed by this Court, to the effect that in case of
extra-contractual culpa based upon negligence, it is necessary that
there shall have been some fault attributable to the defendant
personally, and that the last paragraph of article 1903 merely
establishes a rebuttable presumption, is in complete accord with the
authoritative opinion of Manresa, who says (vol. 12, p. 611) that the
liability created by article 1903 is imposed by reason of the breach of
the duties inherent in the special relations of authority or superiority
existing between the person called upon to repair the damage and the
one who, by his act or omission, was the cause of it.
On the other hand, the liability of masters and employers for the
negligent acts or omissions of their servants or agents, when such acts
or omissions cause damages which amount to the breach of a contact,
is not based upon a mere presumption of the master's negligence in
their selection or control, and proof of exercise of the utmost
 TORTS – 1ST CASES - 30

diligence and care in this regard does not relieve the master of his been broken, it is not necessary for him to prove negligence.
liability for the breach of his contract. (Manresa, vol. 8, p. 71 [1907 ed., p. 76]).

Every legal obligation must of necessity be extra-contractual or As it is not necessary for the plaintiff in an action for the breach of a
contractual. Extra-contractual obligation has its source in the breach contract to show that the breach was due to the negligent conduct of
or omission of those mutual duties which civilized society imposes defendant or of his servants, even though such be in fact the actual
upon it members, or which arise from these relations, other than cause of the breach, it is obvious that proof on the part of defendant
contractual, of certain members of society to others, generally that the negligence or omission of his servants or agents caused the
embraced in the concept of status. The legal rights of each member of breach of the contract would not constitute a defense to the action. If
society constitute the measure of the corresponding legal duties, the negligence of servants or agents could be invoked as a means of
mainly negative in character, which the existence of those rights discharging the liability arising from contract, the anomalous result
imposes upon all other members of society. The breach of these would be that person acting through the medium of agents or servants
general duties whether due to willful intent or to mere inattention, if in the performance of their contracts, would be in a better position
productive of injury, give rise to an obligation to indemnify the than those acting in person. If one delivers a valuable watch to
injured party. The fundamental distinction between obligations of this watchmaker who contract to repair it, and the bailee, by a personal
character and those which arise from contract, rests upon the fact that negligent act causes its destruction, he is unquestionably liable.
in cases of non-contractual obligation it is the wrongful or negligent Would it be logical to free him from his liability for the breach of his
act or omission itself which creates the vinculum juris, whereas in contract, which involves the duty to exercise due care in the
contractual relations the vinculum exists independently of the breach preservation of the watch, if he shows that it was his servant whose
of the voluntary duty assumed by the parties when entering into the negligence caused the injury? If such a theory could be accepted,
contractual relation. juridical persons would enjoy practically complete immunity from
damages arising from the breach of their contracts if caused by
With respect to extra-contractual obligation arising from negligence, negligent acts as such juridical persons can of necessity only act
whether of act or omission, it is competent for the legislature to elect through agents or servants, and it would no doubt be true in most
— and our Legislature has so elected — whom such an obligation is instances that reasonable care had been taken in selection and
imposed is morally culpable, or, on the contrary, for reasons of public direction of such servants. If one delivers securities to a banking
policy, to extend that liability, without regard to the lack of moral corporation as collateral, and they are lost by reason of the negligence
culpability, so as to include responsibility for the negligence of those of some clerk employed by the bank, would it be just and reasonable
person who acts or mission are imputable, by a legal fiction, to others to permit the bank to relieve itself of liability for the breach of its
who are in a position to exercise an absolute or limited control over contract to return the collateral upon the payment of the debt by
them. The legislature which adopted our Civil Code has elected to proving that due care had been exercised in the selection and
limit extra-contractual liability — with certain well-defined direction of the clerk?
exceptions — to cases in which moral culpability can be directly
imputed to the persons to be charged. This moral responsibility may This distinction between culpa aquiliana, as the source of an
consist in having failed to exercise due care in the selection and obligation, and culpa contractual as a mere incident to the
control of one's agents or servants, or in the control of persons who, performance of a contract has frequently been recognized by the
by reason of their status, occupy a position of dependency with supreme court of Spain. (Sentencias of June 27, 1894; November 20,
respect to the person made liable for their conduct. 1896; and December 13, 1896.) In the decisions of November 20,
1896, it appeared that plaintiff's action arose ex contractu, but that
The position of a natural or juridical person who has undertaken by defendant sought to avail himself of the provisions of article 1902 of
contract to render service to another, is wholly different from that to the Civil Code as a defense. The Spanish Supreme Court rejected
which article 1903 relates. When the sources of the obligation upon defendant's contention, saying:
which plaintiff's cause of action depends is a negligent act or
omission, the burden of proof rests upon plaintiff to prove the These are not cases of injury caused, without any pre-
negligence — if he does not his action fails. But when the facts existing obligation, by fault or negligence, such as those to
averred show a contractual undertaking by defendant for the benefit which article 1902 of the Civil Code relates, but of damages
of plaintiff, and it is alleged that plaintiff has failed or refused to caused by the defendant's failure to carry out the
perform the contract, it is not necessary for plaintiff to specify in his undertakings imposed by the contracts . . . .
pleadings whether the breach of the contract is due to willful fault or
to negligence on the part of the defendant, or of his servants or A brief review of the earlier decision of this court involving the
agents. Proof of the contract and of its nonperformance is liability of employers for damage done by the negligent acts of their
sufficient prima facie to warrant a recovery. servants will show that in no case has the court ever decided that the
negligence of the defendant's servants has been held to constitute a
As a general rule . . . it is logical that in case of extra- defense to an action for damages for breach of contract.
contractual culpa, a suing creditor should assume the burden
of proof of its existence, as the only fact upon which his In the case of Johnson vs. David (5 Phil. Rep., 663), the court held
action is based; while on the contrary, in a case of that the owner of a carriage was not liable for the damages caused by
negligence which presupposes the existence of a contractual the negligence of his driver. In that case the court commented on the
obligation, if the creditor shows that it exists and that it has fact that no evidence had been adduced in the trial court that the
 TORTS – 1ST CASES - 31

defendant had been negligent in the employment of the driver, or that inattention on the part of the defendant. Consequently, when the court
he had any knowledge of his lack of skill or carefulness. holds that a defendant is liable in damages for having failed to
exercise due care, either directly, or in failing to exercise proper care
In the case of Baer Senior & Co's Successors vs. Compania Maritima in the selection and direction of his servants, the practical result is
(6 Phil. Rep., 215), the plaintiff sued the defendant for damages identical in either case. Therefore, it follows that it is not to be
caused by the loss of a barge belonging to plaintiff which was inferred, because the court held in the Yamada case that defendant
allowed to get adrift by the negligence of defendant's servants in the was liable for the damages negligently caused by its servants to a
course of the performance of a contract of towage. The court held, person to whom it was bound by contract, and made reference to the
citing Manresa (vol. 8, pp. 29, 69) that if the "obligation of the fact that the defendant was negligent in the selection and control of its
defendant grew out of a contract made between it and the plaintiff . . . servants, that in such a case the court would have held that it would
we do not think that the provisions of articles 1902 and 1903 are have been a good defense to the action, if presented squarely upon the
applicable to the case." theory of the breach of the contract, for defendant to have proved that
it did in fact exercise care in the selection and control of the servant.
In the case of Chapman vs. Underwood (27 Phil. Rep., 374), plaintiff
sued the defendant to recover damages for the personal injuries The true explanation of such cases is to be found by directing the
caused by the negligence of defendant's chauffeur while driving attention to the relative spheres of contractual and extra-contractual
defendant's automobile in which defendant was riding at the time. obligations. The field of non- contractual obligation is much more
The court found that the damages were caused by the negligence of broader than that of contractual obligations, comprising, as it does,
the driver of the automobile, but held that the master was not liable, the whole extent of juridical human relations. These two fields,
although he was present at the time, saying: figuratively speaking, concentric; that is to say, the mere fact that a
person is bound to another by contract does not relieve him from
extra-contractual liability to such person. When such a contractual
. . . unless the negligent acts of the driver are continued for a
relation exists the obligor may break the contract under such
length of time as to give the owner a reasonable opportunity
conditions that the same act which constitutes the source of an extra-
to observe them and to direct the driver to desist therefrom. .
. . The act complained of must be continued in the presence contractual obligation had no contract existed between the parties.
of the owner for such length of time that the owner by his
acquiescence, makes the driver's acts his own. The contract of defendant to transport plaintiff carried with it, by
implication, the duty to carry him in safety and to provide safe means
In the case of Yamada vs. Manila Railroad Co. and Bachrach Garage of entering and leaving its trains (civil code, article 1258). That duty,
& Taxicab Co. (33 Phil. Rep., 8), it is true that the court rested its being contractual, was direct and immediate, and its non-performance
could not be excused by proof that the fault was morally imputable to
conclusion as to the liability of the defendant upon article 1903,
defendant's servants.
although the facts disclosed that the injury complaint of by plaintiff
constituted a breach of the duty to him arising out of the contract of
transportation. The express ground of the decision in this case was The railroad company's defense involves the assumption that even
that article 1903, in dealing with the liability of a master for the granting that the negligent conduct of its servants in placing an
negligent acts of his servants "makes the distinction between private obstruction upon the platform was a breach of its contractual
individuals and public enterprise;" that as to the latter the law creates obligation to maintain safe means of approaching and leaving its
a rebuttable presumption of negligence in the selection or direction of trains, the direct and proximate cause of the injury suffered by
servants; and that in the particular case the presumption of negligence plaintiff was his own contributory negligence in failing to wait until
had not been overcome. the train had come to a complete stop before alighting. Under the
doctrine of comparative negligence announced in the Rakes case
(supra), if the accident was caused by plaintiff's own negligence, no
It is evident, therefore that in its decision Yamada case, the court
liability is imposed upon defendant's negligence and plaintiff's
treated plaintiff's action as though founded in tort rather than as based
negligence merely contributed to his injury, the damages should be
upon the breach of the contract of carriage, and an examination of the
apportioned. It is, therefore, important to ascertain if defendant was in
pleadings and of the briefs shows that the questions of law were in
fact discussed upon this theory. Viewed from the standpoint of the fact guilty of negligence.
defendant the practical result must have been the same in any event.
The proof disclosed beyond doubt that the defendant's servant was It may be admitted that had plaintiff waited until the train had come
grossly negligent and that his negligence was the proximate cause of to a full stop before alighting, the particular injury suffered by him
plaintiff's injury. It also affirmatively appeared that defendant had could not have occurred. Defendant contends, and cites many
been guilty of negligence in its failure to exercise proper discretion in authorities in support of the contention, that it is negligence per se for
the direction of the servant. Defendant was, therefore, liable for the a passenger to alight from a moving train. We are not disposed to
injury suffered by plaintiff, whether the breach of the duty were to be subscribe to this doctrine in its absolute form. We are of the opinion
regarded as constituting culpa aquiliana or culpa contractual. As that this proposition is too badly stated and is at variance with the
Manresa points out (vol. 8, pp. 29 and 69) whether negligence occurs experience of every-day life. In this particular instance, that the train
an incident in the course of the performance of a contractual was barely moving when plaintiff alighted is shown conclusively by
undertaking or its itself the source of an extra-contractual undertaking the fact that it came to stop within six meters from the place where he
obligation, its essential characteristics are identical. There is always stepped from it. Thousands of person alight from trains under these
an act or omission productive of damage due to carelessness or conditions every day of the year, and sustain no injury where the
 TORTS – 1ST CASES - 32

company has kept its platform free from dangerous obstructions. possessed of the vigor and agility of young manhood, and it was by
There is no reason to believe that plaintiff would have suffered any no means so risky for him to get off while the train was yet moving as
injury whatever in alighting as he did had it not been for defendant's the same act would have been in an aged or feeble person. In
negligent failure to perform its duty to provide a safe alighting place. determining the question of contributory negligence in performing
such act — that is to say, whether the passenger acted prudently or
We are of the opinion that the correct doctrine relating to this subject recklessly — the age, sex, and physical condition of the passenger are
is that expressed in Thompson's work on Negligence (vol. 3, sec. circumstances necessarily affecting the safety of the passenger, and
3010) as follows: should be considered. Women, it has been observed, as a general rule
are less capable than men of alighting with safety under such
conditions, as the nature of their wearing apparel obstructs the free
The test by which to determine whether the passenger has
movement of the limbs. Again, it may be noted that the place was
been guilty of negligence in attempting to alight from a
perfectly familiar to the plaintiff as it was his daily custom to get on
moving railway train, is that of ordinary or reasonable care.
and of the train at this station. There could, therefore, be no
It is to be considered whether an ordinarily prudent person,
of the age, sex and condition of the passenger, would have uncertainty in his mind with regard either to the length of the step
acted as the passenger acted under the circumstances which he was required to take or the character of the platform where
he was alighting. Our conclusion is that the conduct of the plaintiff in
disclosed by the evidence. This care has been defined to be,
undertaking to alight while the train was yet slightly under way was
not the care which may or should be used by the prudent
not characterized by imprudence and that therefore he was not guilty
man generally, but the care which a man of ordinary
of contributory negligence.
prudence would use under similar circumstances, to avoid
injury." (Thompson, Commentaries on Negligence, vol. 3,
sec. 3010.) The evidence shows that the plaintiff, at the time of the accident, was
earning P25 a month as a copyist clerk, and that the injuries he has
suffered have permanently disabled him from continuing that
Or, it we prefer to adopt the mode of exposition used by this court in
employment. Defendant has not shown that any other gainful
Picart vs. Smith (37 Phil. rep., 809), we may say that the test is this;
Was there anything in the circumstances surrounding the plaintiff at occupation is open to plaintiff. His expectancy of life, according to
the standard mortality tables, is approximately thirty-three years. We
the time he alighted from the train which would have admonished a
are of the opinion that a fair compensation for the damage suffered by
person of average prudence that to get off the train under the
him for his permanent disability is the sum of P2,500, and that he is
conditions then existing was dangerous? If so, the plaintiff should
also entitled to recover of defendant the additional sum of P790.25
have desisted from alighting; and his failure so to desist was
contributory negligence.1awph!l.net for medical attention, hospital services, and other incidental
expenditures connected with the treatment of his injuries.
As the case now before us presents itself, the only fact from which a
The decision of lower court is reversed, and judgment is hereby
conclusion can be drawn to the effect that plaintiff was guilty of
rendered plaintiff for the sum of P3,290.25, and for the costs of both
contributory negligence is that he stepped off the car without being
able to discern clearly the condition of the platform and while the instances. So ordered.
train was yet slowly moving. In considering the situation thus
presented, it should not be overlooked that the plaintiff was, as we
find, ignorant of the fact that the obstruction which was caused by the
sacks of melons piled on the platform existed; and as the defendant
was bound by reason of its duty as a public carrier to afford to its
passengers facilities for safe egress from its trains, the plaintiff had a
right to assume, in the absence of some circumstance to warn him to
the contrary, that the platform was clear. The place, as we have
already stated, was dark, or dimly lighted, and this also is proof of a
failure upon the part of the defendant in the performance of a duty
owing by it to the plaintiff; for if it were by any possibility concede
that it had right to pile these sacks in the path of alighting passengers,
the placing of them adequately so that their presence would be
revealed.

As pertinent to the question of contributory negligence on the part of

the plaintiff in this case the following circumstances are to be noted:
The company's platform was constructed upon a level higher than that
of the roadbed and the surrounding ground. The distance from the
steps of the car to the spot where the alighting passenger would place
his feet on the platform was thus reduced, thereby decreasing the risk
incident to stepping off. The nature of the platform, constructed as it
was of cement material, also assured to the passenger a stable and
even surface on which to alight. Furthermore, the plaintiff was
 TORTS – 1ST CASES - 33

SECOND DIVISION WHEREFORE, the Order of this Court on

December 8, 1964 is hereby reconsidered by
G.R. No. L-24803 May 26, 1977 ordering the dismissal of the above entitled case.

PEDRO ELCANO and PATRICIA ELCANO, in their capacity SO ORDERED.

as Ascendants of Agapito Elcano, deceased, plaintiffs-appellants,
vs.
REGINALD HILL, minor, and MARVIN HILL, as father and
Natural Guardian of said minor, defendants-appellees.
Cruz & Avecilla for appellants.
Quezon City, Philippines, January 29, 1965. (p. 40,
Record [p. 21, Record on Appeal.)
Hence, this appeal where plaintiffs-appellants, the spouses Elcano,
are presenting for Our resolution the following assignment of errors:

Marvin R. Hill & Associates for appellees. THE LOWER COURT ERRED IN DISMISSING
THE CASE BY UPHOLDING THE CLAIM OF
DEFENDANTS THAT -

BARREDO, J.: I

Appeal from the order of the Court of First Instance of Quezon City THE PRESENT ACTION IS NOT ONLY
dated January 29, 1965 in Civil Case No. Q-8102, Pedro Elcano et al. AGAINST BUT ALSO A VIOLATION OF
vs. Reginald Hill et al. dismissing, upon motion to dismiss of SECTION 1, RULE 107, NOW RULE 111, OF
defendants, the complaint of plaintiffs for recovery of damages from THE REVISED RULES OF COURT, AND THAT
defendant Reginald Hill, a minor, married at the time of the SECTION 3(c) OF RULE 111, RULES OF
occurrence, and his father, the defendant Marvin Hill, with whom he COURT IS APPLICABLE;
was living and getting subsistence, for the killing by Reginald of the
son of the plaintiffs, named Agapito Elcano, of which, when II
criminally prosecuted, the said accused was acquitted on the ground
that his act was not criminal, because of "lack of intent to kill, THE ACTION IS BARRED BY A PRIOR
coupled with mistake." JUDGMENT WHICH IS NOW FINAL OR RES-
ADJUDICTA;
Actually, the motion to dismiss based on the following grounds:
III
1. The present action is not only against but a
violation of section 1, Rule 107, which is now Rule THE PRINCIPLES OF QUASI-DELICTS,
III, of the Revised Rules of Court; ARTICLES 2176 TO 2194 OF THE CIVIL CODE,
ARE INAPPLICABLE IN THE INSTANT CASE;
2. The action is barred by a prior judgment which is and
now final and or in res-adjudicata;
IV
3. The complaint had no cause of action against
defendant Marvin Hill, because he was relieved as THAT THE COMPLAINT STATES NO CAUSE
guardian of the other defendant through OF ACTION AGAINST DEFENDANT MARVIN
emancipation by marriage. HILL BECAUSE HE WAS RELIEVED AS
GUARDIAN OF THE OTHER DEFENDANT
(P. 23, Record [p. 4, Record on Appeal.]) THROUGH EMANCIPATION BY MARRIAGE.
(page 4, Record.)
was first denied by the trial court. It was only upon motion for
reconsideration of the defendants of such denial, reiterating the above It appears that for the killing of the son, Agapito, of plaintiffs-
grounds that the following order was issued: appellants, defendant- appellee Reginald Hill was prosecuted
criminally in Criminal Case No. 5102 of the Court of First Instance of
Considering the motion for reconsideration filed by Quezon City. After due trial, he was acquitted on the ground that his
the defendants on January 14, 1965 and after act was not criminal because of "lack of intent to kill, coupled with
thoroughly examining the arguments therein mistake." Parenthetically, none of the parties has favored Us with a
contained, the Court finds the same to be copy of the decision of acquittal, presumably because appellants do
meritorious and well-founded. not dispute that such indeed was the basis stated in the court's
decision. And so, when appellants filed their complaint against
appellees Reginald and his father, Atty. Marvin Hill, on account of

the death of their son, the appellees filed the motion to dismiss above-
referred to.
As We view the foregoing background of this case, the two decisive
issues presented for Our resolution are:
1. Is the present civil action for damages barred by the acquittal of
Reginald in the criminal case wherein the action for civil liability,
was not reversed?
2. May Article 2180 (2nd and last paragraphs) of the Civil Code he
applied against Atty. Hill, notwithstanding the undisputed fact that at
the time of the occurrence complained of. Reginald, though a minor,
living with and getting subsistenee from his father, was already
legally married?
The first issue presents no more problem than the need for a
reiteration and further clarification of the dual character, criminal and
civil, of fault or negligence as a source of obligation which was
firmly established in this jurisdiction in Barredo vs. Garcia, 73 Phil.
607. In that case, this Court postulated, on the basis of a scholarly
dissertation by Justice Bocobo on the nature of culpa aquiliana in
relation to culpa criminal or delito and mere culpa or fault, with
pertinent citation of decisions of the Supreme Court of Spain, the
works of recognized civilians, and earlier jurisprudence of our own,
that the same given act can result in civil liability not only under the
Penal Code but also under the Civil Code. Thus, the opinion holds:
The, above case is pertinent because it shows that
the same act machinist. come under both the Penal
Code and the Civil Code. In that case, the action of
the agent killeth unjustified and fraudulent and
therefore could have been the subject of a criminal
action. And yet, it was held to be also a proper
subject of a civil action under article 1902 of the
Civil Code. It is also to be noted that it was the
employer and not the employee who was being
sued. (pp. 615-616, 73 Phil.). 1
It will be noticed that the defendant in the above
case could have been prosecuted in a criminal case
because his negligence causing the death of the
child was punishable by the Penal Code. Here is
therefore a clear instance of the same act of
negligence being a proper subject matter either of a
criminal action with its consequent civil liability
arising from a crime or of an entirely separate and
independent civil action for fault or negligence
under article 1902 of the Civil Code. Thus, in this
jurisdiction, the separate individuality of a cuasi-
delito or culpa aquiliana, under the Civil Code has
been fully and clearly recognized, even with regard
to a negligent act for which the wrongdoer could
have been prosecuted and convicted in a criminal
case and for which, after such a conviction, he
could have been sued for this civil liability arising
from his crime. (p. 617, 73 Phil.) 2
TORTS – 1ST CASES - 34
It is most significant that in the case just cited, this
Court specifically applied article 1902 of the Civil
Code. It is thus that although J. V. House could
have been criminally prosecuted for reckless or
simple negligence and not only punished but also
made civilly liable because of his criminal
negligence, nevertheless this Court awarded
damages in an independent civil action for fault or
negligence under article 1902 of the Civil Code. (p.
618, 73 Phil.) 3
The legal provisions, authors, and cases already
invoked should ordinarily be sufficient to dispose
of this case. But inasmuch as we are announcing
doctrines that have been little understood, in the
past, it might not he inappropriate to indicate their
foundations.
Firstly, the Revised Penal Code in articles 365
punishes not only reckless but also simple
negligence. If we were to hold that articles 1902 to
1910 of the Civil Code refer only to fault or
negligence not punished by law, accordingly to the
literal import of article 1093 of the Civil Code, the
legal institution of culpa aquiliana would have very
little scope and application in actual life. Death or
injury to persons and damage to property- through
any degree of negligence - even the slightest -
would have to be Idemnified only through the
principle of civil liability arising from a crime. In
such a state of affairs, what sphere would remain
for cuasi-delito or culpa aquiliana? We are loath to
impute to the lawmaker any intention to bring about
a situation so absurd and anomalous. Nor are we, in
the interpretation of the laws, disposed to uphold
the letter that killeth rather than the spirit that
giveth life. We will not use the literal meaning of
the law to smother and render almost lifeless a
principle of such ancient origin and such full-grown
development as culpa aquiliana or cuasi-delito,
which is conserved and made enduring in articles
1902 to 1910 of the Spanish Civil Code.
Secondary, to find the accused guilty in a criminal
case, proof of guilt beyond reasonable doubt is
required, while in a civil case, preponderance of
evidence is sufficient to make the defendant pay in
damages. There are numerous cases of criminal
negligence which can not be shown beyond
reasonable doubt, but can be proved by a
preponderance of evidence. In such cases, the
defendant can and should be made responsible in a
civil action under articles 1902 to 1910 of the Civil
Code. Otherwise. there would be many instances of
unvindicated civil wrongs. "Ubi jus Idemnified
remedium." (p. 620,73 Phil.)
Fourthly, because of the broad sweep of the
provisions of both the Penal Code and the Civil

Code on this subject, which has given rise to the
overlapping or concurrence of spheres already
discussed, and for lack of understanding of the
character and efficacy of the action for culpa
aquiliana, there has grown up a common practice to
seek damages only by virtue of the civil
responsibility arising from a crime, forgetting that
there is another remedy, which is by invoking
articles 1902-1910 of the Civil Code. Although this
habitual method is allowed by, our laws, it has
nevertheless rendered practically useless and
nugatory the more expeditious and effective
remedy based on culpa aquiliana or culpa extra-
contractual. In the present case, we are asked to
help perpetuate this usual course. But we believe it
is high time we pointed out to the harms done by
such practice and to restore the principle of
responsibility for fault or negligence under articles
1902 et seq. of the Civil Code to its full rigor. It is
high time we caused the stream of quasi-delict
or culpa aquiliana to flow on its own natural
channel, so that its waters may no longer be
diverted into that of a crime under the Penal Code.
This will, it is believed, make for the better
safeguarding or private rights because it realtor, an
ancient and additional remedy, and for the further
reason that an independent civil action, not
depending on the issues, limitations and results of a
criminal prosecution, and entirely directed by the
party wronged or his counsel, is more likely to
secure adequate and efficacious redress. (p. 621, 73
Phil.)
Contrary to an immediate impression one might get upon a reading of
the foregoing excerpts from the opinion in Garcia that the
concurrence of the Penal Code and the Civil Code therein referred to
contemplate only acts of negligence and not intentional voluntary acts
- deeper reflection would reveal that the thrust of the pronouncements
therein is not so limited, but that in fact it actually extends to fault
or culpa. This can be seen in the reference made therein to the
Sentence of the Supreme Court of Spain of February 14, 1919, supra,
which involved a case of fraud or estafa, not a negligent act. Indeed,
Article 1093 of the Civil Code of Spain, in force here at the time of
Garcia, provided textually that obligations "which are derived from
acts or omissions in which fault or negligence, not punishable by law,
intervene shall be the subject of Chapter II, Title XV of this book
(which refers to quasi-delicts.)" And it is precisely the underline
qualification, "not punishable by law", that Justice Bocobo
emphasized could lead to an ultimo construction or interpretation of
the letter of the law that "killeth, rather than the spirit that giveth lift-
hence, the ruling that "(W)e will not use the literal meaning of the law
to smother and render almost lifeless a principle of such ancient
origin and such full-grown development as culpa aquiliana or quasi-
delito, which is conserved and made enduring in articles 1902 to 1910
of the Spanish Civil Code." And so, because Justice Bacobo was
Chairman of the Code Commission that drafted the original text of
the new Civil Code, it is to be noted that the said Code, which was
enacted after the Garcia doctrine, no longer uses the term, 11 not
punishable by law," thereby making it clear that the concept of culpa
aquiliana includes acts which are criminal in character or in violation
TORTS – 1ST CASES - 35
of the penal law, whether voluntary or matter. Thus, the
corresponding provisions to said Article 1093 in the new code, which
is Article 1162, simply says, "Obligations derived from quasi-
delicto shall be governed by the provisions of Chapter 2, Title XVII
of this Book, (on quasi-delicts) and by special laws." More precisely,
a new provision, Article 2177 of the new code provides:
ART. 2177. Responsibility for fault or negligence
under the preceding article is entirely separate and
distinct from the civil liability arising from
negligence under the Penal Code. But the plaintiff
cannot recover damages twice for the same act or
omission of the defendant.
According to the Code Commission: "The foregoing provision
(Article 2177) through at first sight startling, is not so novel or
extraordinary when we consider the exact nature of criminal and civil
negligence. The former is a violation of the criminal law, while the
latter is a "culpa aquiliana" or quasi-delict, of ancient origin, having
always had its own foundation and individuality, separate from
criminal negligence. Such distinction between criminal negligence
and "culpa extracontractual" or "cuasi-delito" has been sustained by
decision of the Supreme Court of Spain and maintained as clear,
sound and perfectly tenable by Maura, an outstanding Spanish jurist.
Therefore, under the proposed Article 2177, acquittal from an
accusation of criminal negligence, whether on reasonable doubt or
not, shall not be a bar to a subsequent civil action, not for civil
liability arising from criminal negligence, but for damages due to a
quasi-delict or 'culpa aquiliana'. But said article forestalls a double
recovery.", (Report of the Code) Commission, p. 162.)
Although, again, this Article 2177 does seem to literally refer to only
acts of negligence, the same argument of Justice Bacobo about
construction that upholds "the spirit that giveth lift- rather than that
which is literal that killeth the intent of the lawmaker should be
observed in applying the same. And considering that the preliminary
chapter on human relations of the new Civil Code definitely
establishes the separability and independence of liability in a civil
action for acts criminal in character (under Articles 29 to 32) from the
civil responsibility arising from crime fixed by Article 100 of the
Revised Penal Code, and, in a sense, the Rules of Court, under
Sections 2 and 3 (c), Rule 111, contemplate also the same
separability, it is "more congruent with the spirit of law, equity and
justice, and more in harmony with modern progress"- to borrow the
felicitous relevant language in Rakes vs. Atlantic. Gulf and Pacific
Co., 7 Phil. 359, to hold, as We do hold, that Article 2176, where it
refers to "fault or negligencia 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 lies
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
a quasi-delict only and not as a crime is not estinguished even by a
declaration in the criminal case that the criminal act charged has not
 TORTS – 1ST CASES - 36

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. 4
It results, therefore, that the acquittal of Reginal Hill in the criminal
case has not extinguished his liability for quasi-delict, hence that
acquittal is not a bar to the instant action against him.
matter of equity, the liability of Atty. Hill has become milling,
subsidiary to that of his son.
WHEREFORE, the order appealed from is reversed and the trial court
is ordered to proceed in accordance with the foregoing opinion. Costs
against appellees.

Coming now to the second issue about the effect of Reginald's

emancipation by marriage on the possible civil liability of Atty. Hill,
his father, it is also Our considered opinion that the conclusion of
appellees that Atty. Hill is already free from responsibility cannot be
upheld.

While it is true that parental authority is terminated upon

emancipation of the child (Article 327, Civil Code), and under Article
397, emancipation takes place "by the marriage of the minor (child)",
it is, however, also clear that pursuant to Article 399, emancipation
by marriage of the minor is not really full or absolute. Thus
"(E)mancipation by marriage or by voluntary concession shall
terminate parental authority over the child's person. It shall enable the
minor to administer his property as though he were of age, but he
cannot borrow money or alienate or encumber real property without
the consent of his father or mother, or guardian. He can sue and be
sued in court only with the assistance of his father, mother or
guardian."

Now under Article 2180, "(T)he 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. The father and, in case
of his death or incapacity, the mother, are responsible. The father and,
in case of his death or incapacity, the mother, are responsible for the
damages caused by the minor children who live in their company." In
the instant case, it is not controverted that Reginald, although
married, was living with his father and getting subsistence from him
at the time of the occurrence in question. Factually, therefore,
Reginald was still subservient to and dependent on his father, a
situation which is not unusual.

It must be borne in mind that, according to Manresa, the reason

behind the joint and solidary liability of presuncion with their
offending child under Article 2180 is that is the obligation of the
parent to supervise their minor children in order to prevent them from
causing damage to third persons. 5 On the other hand, the clear
implication of Article 399, in providing that a minor emancipated by
marriage may not, nevertheless, sue or be sued without the assistance
of the parents, is that such emancipation does not carry with it
freedom to enter into transactions or do any act that can give rise to
judicial litigation. (See Manresa, Id., Vol. II, pp. 766-767, 776.) And
surely, killing someone else invites judicial action. Otherwise stated,
the marriage of a minor child does not relieve the parents of the duty
to see to it that the child, while still a minor, does not give answerable
for the borrowings of money and alienation or encumbering of real
property which cannot be done by their minor married child without
their consent. (Art. 399; Manresa, supra.)

Accordingly, in Our considered view, Article 2180 applies to Atty.

Hill notwithstanding the emancipation by marriage of Reginald.
However, inasmuch as it is evident that Reginald is now of age, as a
 TORTS – 1ST CASES - 37

THIRD DIVISION the land. However, on April 26, 1984, the trial court, acting on
respondent corporation's motion to dismiss or suspend the civil
G.R. No. 74761 November 6, 1990 action, issued an order suspending further hearings in Civil Case No,
TG-748 until after judgment in the related Criminal Case No. TG-
907-82.
NATIVIDAD V. ANDAMO and EMMANUEL R.
ANDAMO, petitioners,
vs. Resolving respondent corporation's motion to dismiss filed on June
INTERMEDIATE APPELLATE COURT (First Civil Cases 22, 1984, the trial court issued on August 27, 1984 the disputed
Division) and MISSIONARIES OF OUR LADY OF LA order dismissing Civil Case No. TG-748 for lack of jurisdiction, as
SALETTE, INC., respondents. the criminal case which was instituted ahead of the civil case was still
unresolved. Said order was anchored on the provision of Section 3
(a), Rule III of the Rules of Court which provides that "criminal and
Lope E. Adriano for petitioners.
civil actions arising from the same offense may be instituted
separately, but after the criminal action has been commenced the civil
Padilla Law Office for private respondent. action cannot be instituted until final judgment has been rendered in
the criminal action." 2

Petitioners appealed from that order to the Intermediate Appellate

FERNAN, C.J.: Court. 3

The pivotal issue in this petition for certiorari, prohibition and On February 17, 1986, respondent Appellate Court, First Civil Cases
mandamus is whether a corporation, which has built through its Division, promulgated a decision 4 affirming the questioned order of
agents, waterpaths, water conductors and contrivances within its land, the trial court. 5 A motion for reconsideration filed by petitioners was
thereby causing inundation and damage to an adjacent land, can be denied by the Appellate Court in its resolution dated May 19, 1986. 6
held civilly liable for damages under Articles 2176 and 2177 of the
Civil Code on quasi-delicts such that the resulting civil case can Directly at issue is the propriety of the dismissal of Civil Case No.
proceed independently of the criminal case. TG-748 in accordance with Section 3 (a) of Rule 111 of the Rules of
Court. Petitioners contend that the trial court and the Appellate Court
The antecedent facts are as follows: erred in dismissing Civil Case No. TG-748 since it is predicated on a
quasi-delict. Petitioners have raised a valid point.
Petitioner spouses Emmanuel and Natividad Andamo are the owners
of a parcel of land situated in Biga (Biluso) Silang, Cavite which is It is axiomatic that the nature of an action filed in court is determined
adjacent to that of private respondent, Missionaries of Our Lady of La by the facts alleged in the complaint as constituting the cause of
Salette, Inc., a religious corporation. action. 7 The purpose of an action or suit and the law to govern it,
including the period of prescription, is to be determined not by the
Within the land of respondent corporation, waterpaths and claim of the party filing the action, made in his argument or brief, but
contrivances, including an artificial lake, were constructed, which rather by the complaint itself, its allegations and prayer for
allegedly inundated and eroded petitioners' land, caused a young man relief. 8 The nature of an action is not necessarily determined or
to drown, damaged petitioners' crops and plants, washed away costly controlled by its title or heading but the body of the pleading or
fences, endangered the lives of petitioners and their laborers during complaint itself. To avoid possible denial of substantial justice due to
rainy and stormy seasons, and exposed plants and other legal technicalities, pleadings as well as remedial laws should be
improvements to destruction. liberally construed so that the litigants may have ample opportunity to
prove their respective claims. 9
In July 1982, petitioners instituted a criminal action, docketed as
Criminal Case No. TG-907-82, before the Regional Trial Court of Quoted hereunder are the pertinent portions of petitioners' complaint
Cavite, Branch 4 (Tagaytay City), against Efren Musngi, Orlando in Civil Case No. TG-748:
Sapuay and Rutillo Mallillin, officers and directors of herein
respondent corporation, for destruction by means of inundation under 4) That within defendant's land, likewise located at
Article 324 of the Revised Penal Code. Biga (Biluso), Silang, Cavite, adjacent on the right
side of the aforesaid land of plaintiffs, defendant
Subsequently, on February 22, 1983, petitioners filed another action constructed waterpaths starting from the middle-
against respondent corporation, this time a civil case, docketed as right portion thereof leading to a big hole or
Civil Case No. TG-748, for damages with prayer for the issuance of a opening, also constructed by defendant, thru the
writ of preliminary injunction before the same court. 1 lower portion of its concrete hollow-blocks fence
situated on the right side of its cemented gate
On March 11, 1983, respondent corporation filed its answer to the fronting the provincial highway, and connected by
complaint and opposition to the issuance of a writ of preliminary defendant to a man height inter-connected cement
injunction. Hearings were conducted including ocular inspections on culverts which were also constructed and lain by
defendant cross-wise beneath the tip of the said

cemented gate, the left-end of the said inter-
connected culverts again connected by defendant to
a big hole or opening thru the lower portion of the
same concrete hollowblocks fence on the left side
of the said cemented gate, which hole or opening is
likewise connected by defendant to the cemented
mouth of a big canal, also constructed by
defendant, which runs northward towards a big hole
or opening which was also built by defendant thru
the lower portion of its concrete hollow-blocks
fence which separates the land of plaintiffs from
that of defendant (and which serves as the exit-
point of the floodwater coming from the land of
defendant, and at the same time, the entrance-point
of the same floodwater to the land of plaintiffs, year
after year, during rainy or stormy seasons.
5) That moreover, on the middle-left portion of its
land just beside the land of plaintiffs, defendant
also constructed an artificial lake, the base of which
is soil, which utilizes the water being channeled
thereto from its water system thru inter-connected
galvanized iron pipes (No. 2) and complimented by
rain water during rainy or stormy seasons, so much
so that the water below it seeps into, and the excess
water above it inundates, portions of the adjoining
land of plaintiffs.
6) That as a result of the inundation brought about
by defendant's aforementioned water conductors,
contrivances and manipulators, a young man was
drowned to death, while herein plaintiffs suffered
and will continue to suffer, as follows:
a) Portions of the land of
plaintiffs were eroded and
converted to deep, wide and long
canals, such that the same can no
longer be planted to any crop or
plant.
b) Costly fences constructed by
plaintiffs were, on several
occasions, washed away.
c) During rainy and stormy
seasons the lives of plaintiffs and
their laborers are always in
danger.
d) Plants and other improvements
on other portions of the land of
plaintiffs are exposed to
destruction. ... 10
A careful examination of the aforequoted complaint shows that the
civil action is one under Articles 2176 and 2177 of the Civil Code on
quasi-delicts. All the elements of a quasi-delict are present, to wit: (a)
damages suffered by the plaintiff, (b) fault or negligence of the
TORTS – 1ST CASES - 38
defendant, or some other person for whose acts he must respond; and
(c) the connection of cause and effect between the fault or negligence
of the defendant and the damages incurred by the plaintiff. 11
Clearly, from petitioner's complaint, the waterpaths and contrivances
built by respondent corporation are alleged to have inundated the land
of petitioners. There is therefore, an assertion of a causal connection
between the act of building these waterpaths and the damage
sustained by petitioners. Such action if proven constitutes fault or
negligence which may be the basis for the recovery of damages.
In the case of Samson vs. Dionisio, 12 the Court applied Article 1902,
now Article 2176 of the Civil Code and held that "any person who
without due authority constructs a bank or dike, stopping the flow or
communication between a creek or a lake and a river, thereby causing
loss and damages to a third party who, like the rest of the residents, is
entitled to the use and enjoyment of the stream or lake, shall be liable
to the payment of an indemnity for loss and damages to the injured
party.
While the property involved in the cited case belonged to the public
domain and the property subject of the instant case is privately
owned, the fact remains that petitioners' complaint sufficiently alleges
that petitioners have sustained and will continue to sustain damage
due to the waterpaths and contrivances built by respondent
corporation. Indeed, the recitals of the complaint, the alleged
presence of damage to the petitioners, the act or omission of
respondent corporation supposedly constituting fault or negligence,
and the causal connection between the act and the damage, with no
pre-existing contractual obligation between the parties make a clear
case of a quasi delict or culpa aquiliana.
It must be stressed that the use of one's property is not without
limitations. Article 431 of the Civil Code provides that "the owner of
a thing cannot make use thereof in such a manner as to injure the
rights of a third person." SIC UTERE TUO UT ALIENUM NON
LAEDAS. Moreover, adjoining landowners have mutual and
reciprocal duties which require that each must use his own land in a
reasonable manner so as not to infringe upon the rights and interests
of others. Although we recognize the right of an owner to build
structures on his land, such structures must be so constructed and
maintained using all reasonable care so that they cannot be dangerous
to adjoining landowners and can withstand the usual and expected
forces of nature. If the structures cause injury or damage to an
adjoining landowner or a third person, the latter can claim
indemnification for the injury or damage suffered.
Article 2176 of the Civil Code imposes a civil liability on a person for
damage caused by his act or omission constituting fault or negligence,
thus:
Article 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.
 TORTS – 1ST CASES - 39

Article 2176, whenever 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 lies 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 the
tortfeasor 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. 13
The distinctness of quasi-delicta is shown in Article 2177 of the Civil
Code, which states:
WHEREFORE, the assailed decision dated February 17, 1986 of the
then Intermediate Appellate Court affirming the order of dismissal of
the Regional Trial Court of Cavite, Branch 18 (Tagaytay City) dated
August 17, 1984 is hereby REVERSED and SET ASIDE. The trial
court is ordered to reinstate Civil Case No. TG-748 entitled
"Natividad V. Andamo and Emmanuel R. Andamo vs. Missionaries
of Our Lady of La Salette Inc." and to proceed with the hearing of the
case with dispatch. This decision is immediately executory. Costs
against respondent corporation.
SO ORDERED.

Article 2177. Responsibility for fault or negligence

under the preceding article is entirely separate and
distinct from the civil liability arising from
negligence under the Penal Code. But the plaintiff
cannot recover damages twice for the same act or
omission of the defendant.

According to the Report of the Code Commission "the foregoing

provision though at first sight startling, is not so novel or
extraordinary when we consider the exact nature of criminal and civil
negligence. The former is a violation of the criminal law, while the
latter is a distinct and independent negligence, which is a "culpa
aquiliana" or quasi-delict, of ancient origin, having always had its
own foundation and individuality, separate from criminal negligence.
Such distinction between criminal negligence and "culpa extra-
contractual" or "cuasi-delito" has been sustained by decisions of the
Supreme Court of Spain ... 14

In the case of Castillo vs. Court of Appeals, 15 this Court held that a
quasi-delict or culpa aquiliana is a separate legal institution under the
Civil Code with a substantivity all its own, and individuality that is
entirely apart and independent from a delict or crime — a distinction
exists between the civil liability arising from a crime and the
responsibility for quasi-delicts or culpa extra-contractual. The same
negligence causing damages may produce civil liability arising from a
crime under the Penal Code, or create an action for quasi-delicts or
culpa extra-contractual under the Civil Code. Therefore, the acquittal
or conviction in the criminal case is entirely irrelevant in the civil
case, unless, of course, in the event of an acquittal where the court
has declared that the fact from which the civil action arose did not
exist, in which case the extinction of the criminal liability would
carry with it the extinction of the civil liability.

In Azucena vs. Potenciano, 16 the Court declared that in quasi-delicts,

"(t)he civil action is entirely independent of the criminal case
according to Articles 33 and 2177 of the Civil Code. There can be no
logical conclusion than this, for to subordinate the civil action
contemplated in the said articles to the result of the criminal
prosecution — whether it be conviction or acquittal — would render
meaningless the independent character of the civil action and the
clear injunction in Article 31, that his action may proceed
independently of the criminal proceedings and regardless of the result
of the latter."

THIRD DIVISION
G.R. No. 97336 February 19, 1993
GASHEM SHOOKAT BAKSH, petitioner,
vs.
HON. COURT OF APPEALS and MARILOU T.
GONZALES, respondents.
Public Attorney's Office for petitioner.
Corleto R. Castro for private respondent.
DAVIDE, JR., J.:
This is an appeal by certiorari under Rule 45 of the Rules of Court
seeking to review and set aside the Decision1 of the respondent Court After conducting 4a pre-trial on 25 January 1988, the trial court issued
of Appeals in CA-G.R. CV No. 24256 which affirmed in toto the 16 a Pre-Trial Order embodying the stipulated facts which the parties
October 1939 Decision of Branch 38 (Lingayen) of the Regional Trial had agreed upon, to wit:
Court (RTC) of Pangasinan in Civil Case No. 16503. Presented is the
issue of whether or not damages may be recovered for a breach of
promise to marry on the basis of Article 21 of the Civil Code of the
Philippines.
The antecedents of this case are not complicated:
On 27 October 1987, private respondent, without the assistance of
counsel, filed with the aforesaid trial court a complaint2 for damages
against the petitioner for the alleged violation of their agreement to
get married. She alleges in said complaint that: she is twenty-two (22)
years old, single, Filipino and a pretty lass of good moral character
and reputation duly respected in her community; petitioner, on the
other hand, is an Iranian citizen residing at the Lozano Apartments,
Guilig, Dagupan City, and is an exchange student taking a medical
course at the Lyceum Northwestern Colleges in Dagupan City; before
20 August 1987, the latter courted and proposed to marry her; she
accepted his love on the condition that they would get married; they
therefore agreed to get married after the end of the school semester,
which was in October of that year; petitioner then visited the private
respondent's parents in Bañaga, Bugallon, Pangasinan to secure their
approval to the marriage; sometime in 20 August 1987, the petitioner
forced her to live with him in the Lozano Apartments; she was a
virgin before she began living with him; a week before the filing of
the complaint, petitioner's attitude towards her started to change; he
maltreated and threatened to kill her; as a result of such maltreatment,
she sustained injuries; during a confrontation with a representative of
the barangay captain of Guilig a day before the filing of the
complaint, petitioner repudiated their marriage agreement and asked
her not to live with him anymore and; the petitioner is already
married to someone living in Bacolod City. Private respondent then
prayed for judgment ordering the petitioner to pay her damages in the
amount of not less than P45,000.00, reimbursement for actual
expenses amounting to P600.00, attorney's fees and costs, and
TORTS – 1ST CASES - 40
granting her such other relief and remedies as may be just and
equitable. The complaint was docketed as Civil Case No. 16503.
In his Answer with Counterclaim,3 petitioner admitted only the
personal circumstances of the parties as averred in the complaint and
denied the rest of the allegations either for lack of knowledge or
information sufficient to form a belief as to the truth thereof or
because the true facts are those alleged as his Special and Affirmative
Defenses. He thus claimed that he never proposed marriage to or
agreed to be married with the private respondent; he neither sought
the consent and approval of her parents nor forced her to live in his
apartment; he did not maltreat her, but only told her to stop coming to
his place because he discovered that she had deceived him by stealing
his money and passport; and finally, no confrontation took place with
a representative of the barangay captain. Insisting, in his
Counterclaim, that the complaint is baseless and unfounded and that
as a result thereof, he was unnecessarily dragged into court and
compelled to incur expenses, and has suffered mental anxiety and a
besmirched reputation, he prayed for an award of P5,000.00 for
miscellaneous expenses and P25,000.00 as moral damages.
1. That the plaintiff is single and resident (sic) of
Bañaga, Bugallon, Pangasinan, while the defendant
is single, Iranian citizen and resident (sic) of
Lozano Apartment, Guilig, Dagupan City since
September 1, 1987 up to the present;
2. That the defendant is presently studying at
Lyceum Northwestern, Dagupan City, College of
Medicine, second year medicine proper;
3. That the plaintiff is (sic) an employee at
Mabuhay Luncheonette , Fernandez Avenue,
Dagupan City since July, 1986 up to the present
and a (sic) high school graduate;
4. That the parties happened to know each other
when the manager of the Mabuhay Luncheonette,
Johhny Rabino introduced the defendant to the
plaintiff on August 3, 1986.
After trial on the merits, the lower court, applying Article 21 of the
Civil Code, rendered on 16 October 1989 a decision5 favoring the
private respondent. The petitioner was thus ordered to pay the latter
damages and attorney's fees; the dispositive portion of the decision
reads:
IN THE LIGHT of the foregoing consideration,
judgment is hereby rendered in favor of the plaintiff
and against the defendant.
1. Condemning (sic) the defendant to pay the
plaintiff the sum of twenty thousand (P20,000.00)
pesos as moral damages.

2. Condemning further the defendant to play the
plaintiff the sum of three thousand (P3,000.00)
pesos as atty's fees and two thousand (P2,000.00)
pesos at (sic) litigation expenses and to pay the
costs.
3. All other claims are denied.6
The decision is anchored on the trial court's findings and conclusions
that (a) petitioner and private respondent were lovers, (b) private
respondent is not a woman of loose morals or questionable virtue who
readily submits to sexual advances, (c) petitioner, through
machinations, deceit and false pretenses, promised to marry private
respondent, d) because of his persuasive promise to marry her, she
allowed herself to be deflowered by him, (e) by reason of that
deceitful promise, private respondent and her parents — in
accordance with Filipino customs and traditions — made some
preparations for the wedding that was to be held at the end of October
1987 by looking for pigs and chickens, inviting friends and relatives
and contracting sponsors, (f) petitioner did not fulfill his promise to
marry her and (g) such acts of the petitioner, who is a foreigner and
who has abused Philippine hospitality, have offended our sense of
morality, good customs, culture and traditions. The trial court gave
full credit to the private respondent's testimony because, inter alia,
she would not have had the temerity and courage to come to court and
expose her honor and reputation to public scrutiny and ridicule if her
claim was false.7
The above findings and conclusions were culled from the detailed
summary of the evidence for the private respondent in the foregoing
decision, digested by the respondent Court as follows:
According to plaintiff, who claimed that she was a
virgin at the time and that she never had a
boyfriend before, defendant started courting her just
a few days after they first met. He later proposed
marriage to her several times and she accepted his
love as well as his proposal of marriage on August
20, 1987, on which same day he went with her to
her hometown of Bañaga, Bugallon, Pangasinan, as
he wanted to meet her parents and inform them of
their relationship and their intention to get married.
The photographs Exhs. "A" to "E" (and their
submarkings) of defendant with members of
plaintiff's family or with plaintiff, were taken that
day. Also on that occasion, defendant told plaintiffs
parents and brothers and sisters that he intended to
marry her during the semestral break in October,
1987, and because plaintiff's parents thought he was
good and trusted him, they agreed to his proposal
for him to marry their daughter, and they likewise
allowed him to stay in their house and sleep with
plaintiff during the few days that they were in
Bugallon. When plaintiff and defendant later
returned to Dagupan City, they continued to live
together in defendant's apartment. However, in the
early days of October, 1987, defendant would tie
plaintiff's hands and feet while he went to school,
and he even gave her medicine at 4 o'clock in the
TORTS – 1ST CASES - 41
morning that made her sleep the whole day and
night until the following day. As a result of this
live-in relationship, plaintiff became pregnant, but
defendant gave her some medicine to abort the
fetus. Still plaintiff continued to live with defendant
and kept reminding him of his promise to marry her
until he told her that he could not do so because he
was already married to a girl in Bacolod City. That
was the time plaintiff left defendant, went home to
her parents, and thereafter consulted a lawyer who
accompanied her to the barangay captain in
Dagupan City. Plaintiff, her lawyer, her godmother,
and a barangay tanod sent by the barangay captain
went to talk to defendant to still convince him to
marry plaintiff, but defendant insisted that he could
not do so because he was already married to a girl
in Bacolod City, although the truth, as stipulated by
the parties at the pre-trial, is that defendant is still
single.
Plaintiff's father, a tricycle driver, also claimed that
after defendant had informed them of his desire to
marry Marilou, he already looked for sponsors for
the wedding, started preparing for the reception by
looking for pigs and chickens, and even already
invited many relatives and friends to the
forthcoming wedding. 8
Petitioner appealed the trial court's decision to the respondent Court
of Appeals which docketed the case as CA-G.R. CV No. 24256. In
his Brief,9 he contended that the trial court erred (a) in not dismissing
the case for lack of factual and legal basis and (b) in ordering him to
pay moral damages, attorney's fees, litigation expenses and costs.
On 18 February 1991, respondent Court promulgated the challenged
decision 10 affirming in toto the trial court's ruling of 16 October
1989. In sustaining the trial court's findings of fact, respondent Court
made the following analysis:
First of all, plaintiff, then only 21 years old when
she met defendant who was already 29 years old at
the time, does not appear to be a girl of loose
morals. It is uncontradicted that she was a virgin
prior to her unfortunate experience with defendant
and never had boyfriend. She is, as described by the
lower court, a barrio lass "not used and accustomed
to trend of modern urban life", and certainly would
(sic) not have allowed
"herself to be deflowered by the defendant if there
was no persuasive promise made by the defendant
to marry her." In fact, we agree with the lower court
that plaintiff and defendant must have been
sweethearts or so the plaintiff must have thought
because of the deception of defendant, for
otherwise, she would not have allowed herself to be
photographed with defendant in public in so (sic)
loving and tender poses as those depicted in the
pictures Exhs. "D" and "E". We cannot believe,
therefore, defendant's pretense that plaintiff was a

nobody to him except a waitress at the restaurant
where he usually ate. Defendant in fact admitted
that he went to plaintiff's hometown of Bañaga,
Bugallon, Pangasinan, at least thrice; at (sic) the
town fiesta on February 27, 1987 (p. 54, tsn May
18, 1988), at (sic) a beach party together with the
manager and employees of the Mabuhay
Luncheonette on March 3, 1987 (p. 50, tsn id.), and
on April 1, 1987 when he allegedly talked to
plaintiff's mother who told him to marry her
daughter (pp. 55-56, tsn id.). Would defendant have
left Dagupan City where he was involved in the
serious study of medicine to go to plaintiff's
hometown in Bañaga, Bugallon, unless there was
(sic) some kind of special relationship between
them? And this special relationship must indeed
have led to defendant's insincere proposal of
marriage to plaintiff, communicated not only to her
but also to her parents, and (sic) Marites Rabino,
the owner of the restaurant where plaintiff was
working and where defendant first proposed
marriage to her, also knew of this love affair and
defendant's proposal of marriage to plaintiff, which
she declared was the reason why plaintiff resigned
from her job at the restaurant after she had accepted Muslim Code which purportedly allows a Muslim to take four (4)
defendant's proposal (pp. 6-7, tsn March 7, 1988).
Upon the other hand, appellant does not appear to
be a man of good moral character and must think so marriage had been solemnized in civil ceremonies in the Iranian
low and have so little respect and regard for
Filipino women that he openly admitted that when petitioner claims that even if responsibility could be pinned on him
he studied in Bacolod City for several years where for the live-in relationship, the private respondent should also be
he finished his B.S. Biology before he came to
Dagupan City to study medicine, he had a common- asseverates that even if it was to be assumed arguendo that he had
law wife in Bacolod City. In other words, he also
lived with another woman in Bacolod City but did
not marry that woman, just like what he did to
plaintiff. It is not surprising, then, that he felt so actionable. 14
little compunction or remorse in pretending to love
and promising to marry plaintiff, a young, innocent,
trustful country girl, in order to satisfy his lust on
11
her.
and then concluded:
In sum, we are strongly convinced and so hold that
it was defendant-appellant's fraudulent and
deceptive protestations of love for and promise to
marry plaintiff that made her surrender her virtue
and womanhood to him and to live with him on the
honest and sincere belief that he would keep said
promise, and it was likewise these (sic) fraud and
deception on appellant's part that made plaintiff's
parents agree to their daughter's living-in with him
preparatory to their supposed marriage. And as
these acts of appellant are palpably and
undoubtedly against morals, good customs, and
public policy, and are even gravely and deeply
derogatory and insulting to our women, coming as
they do from a foreigner who has been enjoying the
TORTS – 1ST CASES - 42
hospitality of our people and taking advantage of
the opportunity to study in one of our institutions of
learning, defendant-appellant should indeed be
made, under Art. 21 of the Civil Code of the
Philippines, to compensate for the moral damages
and injury that he had caused plaintiff, as the lower
court ordered him to do in its decision in this
case. 12
Unfazed by his second defeat, petitioner filed the instant petition on
26 March 1991; he raises therein the single issue of whether or not
Article 21 of the Civil Code applies to the case at bar. 13
It is petitioner's thesis that said Article 21 is not applicable because he
had not committed any moral wrong or injury or violated any good
custom or public policy; he has not professed love or proposed
marriage to the private respondent; and he has never maltreated her.
He criticizes the trial court for liberally invoking Filipino customs,
traditions and culture, and ignoring the fact that since he is a
foreigner, he is not conversant with such Filipino customs, traditions
and culture. As an Iranian Moslem, he is not familiar with Catholic
and Christian ways. He stresses that even if he had made a promise to
marry, the subsequent failure to fulfill the same is excusable or
tolerable because of his Moslem upbringing; he then alludes to the
wives and concludes that on the basis thereof, the trial court erred in
ruling that he does not posses good moral character. Moreover, his
controversial "common law life" is now his legal wife as their
Embassy. As to his unlawful cohabitation with the private respondent,
faulted for consenting to an illicit arrangement. Finally, petitioner
professed his love to the private respondent and had also promised to
marry her, such acts would not be actionable in view of the special
circumstances of the case. The mere breach of promise is not
On 26 August 1991, after the private respondent had filed her
Comment to the petition and the petitioner had filed his Reply
thereto, this Court gave due course to the petition and required the
parties to submit their respective Memoranda, which they
subsequently complied with.
As may be gleaned from the foregoing summation of the petitioner's
arguments in support of his thesis, it is clear that questions of fact,
which boil down to the issue of the credibility of witnesses, are also
raised. It is the rule in this jurisdiction that appellate courts will not
disturb the trial court's findings as to the credibility of witnesses, the
latter court having heard the witnesses and having had the
opportunity to observe closely their deportment and manner of
testifying, unless the trial court had plainly overlooked facts of
substance or value which, if considered, might affect the result of the
case. 15
Petitioner has miserably failed to convince Us that both the appellate
and trial courts had overlooked any fact of substance or values which
could alter the result of the case.

Equally settled is the rule that only questions of law may be raised in
a petition for review on certiorari under Rule 45 of the Rules of
Court. It is not the function of this Court to analyze or weigh all over
again the evidence introduced by the parties before the lower court.
There are, however, recognized exceptions to this rule. Thus,
in Medina vs.Asistio, Jr., 16 this Court took the time, again, to
enumerate these exceptions:
xxx xxx xxx
(1) When the conclusion is a finding grounded
entirely on speculation, surmises or conjectures
(Joaquin v. Navarro, 93 Phil. 257 [1953]); (2)
When the inference made is manifestly mistaken,
absurb or impossible (Luna v. Linatok, 74 Phil. 15
[1942]); (3) Where there is a grave abuse of
discretion (Buyco v. People, 95 Phil. 453 [1955]);
(4) When the judgment is based on a
misapprehension of facts (Cruz v. Sosing,
L-4875, Nov. 27, 1953); (5) When the findings of
fact are conflicting (Casica v. Villaseca, L-9590
Ap. 30, 1957; unrep.) (6) When the Court of
Appeals, in making its findings, went beyond the
issues of the case and the same is contrary to the
admissions of both appellate and appellee
(Evangelista v. Alto Surety and Insurance Co., 103
Phil. 401 [1958]);
(7) The findings of the Court of Appeals are
contrary to those of the trial court (Garcia v. Court
of Appeals, 33 SCRA 622 [1970]; Sacay v.
Sandiganbayan, 142 SCRA 593 [1986]); (8) When
the findings of fact are conclusions without citation
of specific evidence on which they are based
(Ibid.,); (9) When the facts set forth in the petition
as well as in the petitioners main and reply briefs
are not disputed by the respondents (Ibid.,); and
(10) The finding of fact of the Court of Appeals is
premised on the supposed absence of evidence and
is contradicted by the evidence on record (Salazar
v. Gutierrez, 33 SCRA 242 [1970]).
Petitioner has not endeavored to joint out to Us the existence of any
of the above quoted exceptions in this case. Consequently, the factual
findings of the trial and appellate courts must be respected.
And now to the legal issue.
The existing rule is that a breach of promise to marry per se is not an
actionable wrong. 17 Congress deliberately eliminated from the draft
of the New Civil Code the provisions that would have made it so. The
reason therefor is set forth in the report of the Senate Committees on
Article 2176 of the Civil Code, which defines a quasi-delict thus:
the Proposed Civil Code, from which We quote:
The elimination of this chapter is proposed. That
breach of promise to marry is not actionable has
been definitely decided in the case of De Jesus vs.
Syquia. 18 The history of breach of promise suits in
the United States and in England has shown that no
other action lends itself more readily to abuse by
TORTS – 1ST CASES - 43
designing women and unscrupulous men. It is this
experience which has led to the abolition of rights
of action in the so-called Heart Balm suits in many
of the American states. . . . 19
This notwithstanding, the said Code contains a provision, Article 21,
which is designed to expand the concept of torts or quasi-delict in this
jurisdiction by granting adequate legal remedy for the untold number
of moral wrongs which is impossible for human foresight to
specifically enumerate and punish in the statute books. 20
As the Code Commission itself stated in its Report:
But the Code Commission had gone farther than the
sphere of wrongs defined or determined by positive
law. Fully sensible that there are countless gaps in
the statutes, which leave so many victims of moral
wrongs helpless, even though they have actually
suffered material and moral injury, the Commission
has deemed it necessary, in the interest of justice, to
incorporate in the proposed Civil Code the
following rule:
Art. 23. Any person who wilfully
causes loss or injury to another in
a manner that is contrary to
morals, good customs or public
policy shall compensate the latter
for the damage.
An example will illustrate the purview of the
foregoing norm: "A" seduces the nineteen-year old
daughter of "X". A promise of marriage either has
not been made, or can not be proved. The girl
becomes pregnant. Under the present laws, there is
no crime, as the girl is above nineteen years of age.
Neither can any civil action for breach of promise
of marriage be filed. Therefore, though the grievous
moral wrong has been committed, and though the
girl and family have suffered incalculable moral
damage, she and her parents cannot bring action for
damages. But under the proposed article, she and
her parents would have such a right of action.
Thus at one stroke, the legislator, if the forgoing
rule is approved, would vouchsafe adequate legal
remedy for that untold number of moral wrongs
which it is impossible for human foresight to
provide for specifically in the statutes. 21
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.
is limited to negligent acts or omissions and excludes the
notion of willfulness or intent. Quasi-delict, known in
Spanish legal treatises as culpa aquiliana, is a civil law
concept while torts is an Anglo-American or common law
concept. Torts is much broader than culpa aquiliana because
it includes not only negligence, but international criminal
acts as well such as assault and battery, false imprisonment
and deceit. In the general scheme of the Philippine legal
system envisioned by the Commission responsible for
drafting the New Civil Code, intentional and malicious acts,
with certain exceptions, are to be governed by the Revised
Penal Code while negligent acts or omissions are to be
covered by Article 2176 of the Civil Code. 22 In between
these opposite spectrums are injurious acts which, in the
absence of Article 21, would have been beyond redress.
Thus, Article 21 fills that vacuum. It is even postulated that
together with Articles 19 and 20 of the Civil Code, Article
21 has greatly broadened the scope of the law on civil
wrongs; it has become much more supple and adaptable than
the Anglo-American law on torts. 23
In the light of the above laudable purpose of Article 21, We are of the
opinion, and so hold, that where a man's promise to marry is in fact
the proximate cause of the acceptance of his love by a woman and his
representation to fulfill that promise thereafter becomes the proximate
cause of the giving of herself unto him in a sexual congress, proof
that he had, in reality, no intention of marrying her and that the
promise was only a subtle scheme or deceptive device to entice or
inveigle her to accept him and to obtain her consent to the sexual act,
could justify the award of damages pursuant to Article 21 not because
of such promise to marry but because of the fraud and deceit behind it
and the willful injury to her honor and reputation which followed
thereafter. It is essential, however, that such injury should have been
committed in a manner contrary to morals, good customs or public
policy.
In the instant case, respondent Court found that it was the petitioner's
"fraudulent and deceptive protestations of love for and promise to
marry plaintiff that made her surrender her virtue and womanhood to
him and to live with him on the honest and sincere belief that he
would keep said promise, and it was likewise these fraud and
deception on appellant's part that made plaintiff's parents agree to
their daughter's living-in with him preparatory to their supposed
marriage." 24 In short, the private respondent surrendered her
virginity, the cherished possession of every single Filipina, not
because of lust but because of moral seduction — the kind illustrated
by the Code Commission in its example earlier adverted to. The
petitioner could not be held liable for criminal seduction punished
under either Article 337 or Article 338 of the Revised Penal Code
because the private respondent was above eighteen (18) years of age
at the time of the seduction.
Prior decisions of this Court clearly suggest that Article 21 may be
applied in a breach of promise to marry where the woman is a victim
of moral seduction. Thus, in Hermosisima vs. Court of Appeals,25 this
Court denied recovery of damages to the woman because:
TORTS – 1ST CASES - 44
. . . we find ourselves unable to say that petitioner
is morally guilty of seduction, not only because he
is approximately ten (10) years younger than the
complainant — who was around thirty-six (36)
years of age, and as highly enlightened as a former
high school teacher and a life insurance agent are
supposed to be — when she became intimate with
petitioner, then a mere apprentice pilot, but, also,
because the court of first instance found that,
complainant "surrendered herself" to petitioner
because, "overwhelmed by her love" for him, she
"wanted to bind" him by having a fruit of their
engagement even before they had the benefit of
clergy.
In Tanjanco vs. Court of Appeals, 26 while this Court likewise hinted
at possible recovery if there had been moral seduction, recovery was
eventually denied because We were not convinced that such
seduction existed. The following enlightening disquisition and
conclusion were made in the said case:
The Court of Appeals seem to have overlooked that
the example set forth in the Code Commission's
memorandum refers to a tort upon a minor who had
been seduced. The essential feature is seduction,
that in law is more than mere sexual intercourse, or
a breach of a promise of marriage; it connotes
essentially the idea of deceit, enticement, superior
power or abuse of confidence on the part of the
seducer to which the woman has yielded (U.S. vs.
Buenaventura, 27 Phil. 121; U.S. vs. Arlante, 9
Phil. 595).
It has been ruled in the Buenaventura case (supra)
that —
To constitute seduction there
must in all cases be some
sufficient promise or
inducement and the woman must
yield because of the promise or
other inducement. If she consents
merely from carnal lust and the
intercourse is from mutual desire,
there is no seduction (43 Cent.
Dig. tit. Seduction, par. 56) She
must be induced to depart from
the path of virtue by the use of
some species of arts, persuasions
and wiles, which are calculated to
have and do have that effect, and
which result in her person to
ultimately submitting her person
to the sexual embraces of her
seducer (27 Phil. 123).
And in American Jurisprudence we find:

On the other hand, in an action by
the woman, the enticement,
persuasion or deception is the
essence of the injury; and a mere
proof of intercourse is insufficient
to warrant a recovery.
Accordingly it is not seduction
where the willingness arises out
of sexual desire of curiosity of the Senator Arturo M. Tolentino 29 is also of the same persuasion:
female, and the defendant merely
affords her the needed
opportunity for the commission
of the act. It has been emphasized
that to allow a recovery in all
such cases would tend to the
demoralization of the female sex,
and would be a reward for
unchastity by which a class of
adventuresses would be swift to
profit. (47 Am. Jur. 662)
xxx xxx xxx
Over and above the partisan allegations, the fact
stand out that for one whole year, from 1958 to
1959, the plaintiff-appellee, a woman of adult age,
maintain intimate sexual relations with appellant,
with repeated acts of intercourse. Such conduct is
incompatible with the idea of seduction. Plainly
there is here voluntariness and mutual passion; for
had the appellant been deceived, had she
surrendered exclusively because of the deceit, artful
persuasions and wiles of the defendant, she would
not have again yielded to his embraces, much less
for one year, without exacting early fulfillment of
the alleged promises of marriage, and would have
cut short all sexual relations upon finding that
defendant did not intend to fulfill his defendant did
not intend to fulfill his promise. Hence, we
conclude that no case is made under article 21 of
the Civil Code, and no other cause of action being
alleged, no error was committed by the Court of
First Instance in dismissing the complaint. 27
In his annotations on the Civil Code, 28 Associate Justice Edgardo L.
Paras, who recently retired from this Court, opined that in a breach of
promise to marry where there had been carnal knowledge, moral
damages may be recovered:
. . . if there be criminal or moral seduction, but not
if the intercourse was due to mutual lust.
(Hermosisima vs. Court of Appeals,
L-14628, Sept. 30, 1960; Estopa vs. Piansay, Jr., L-
14733, Sept. 30, 1960; Batarra vs. Marcos, 7 Phil.
56 (sic); Beatriz Galang vs. Court of Appeals, et al.,
L-17248, Jan. 29, 1962). (In other words, if the
CAUSE be the promise to marry, and the EFFECT
be the carnal knowledge, there is a chance that there
TORTS – 1ST CASES - 45
was criminal or moral seduction, hence recovery of
moral damages will prosper. If it be the other way
around, there can be no recovery of moral damages,
because here mutual lust has intervened). . . .
together with "ACTUAL damages, should there be any, such
as the expenses for the wedding presentations (See
Domalagon v. Bolifer, 33 Phil. 471).
It is submitted that the rule in Batarra
vs. Marcos, 30 still subsists, notwithstanding the
incorporation of the present article31 in the Code.
The example given by the Code Commission is
correct, if there was seduction, not necessarily in
the legal sense, but in the vulgar sense of deception.
But when the sexual act is accomplished without
any deceit or qualifying circumstance of abuse of
authority or influence, but the woman, already of
age, has knowingly given herself to a man, it cannot
be said that there is an injury which can be the basis
for indemnity.
But so long as there is fraud, which is characterized
by willfulness (sic), the action lies. The court,
however, must weigh the degree of fraud, if it is
sufficient to deceive the woman under the
circumstances, because an act which would deceive
a girl sixteen years of age may not constitute deceit
as to an experienced woman thirty years of age. But
so long as there is a wrongful act and a resulting
injury, there should be civil liability, even if the act
is not punishable under the criminal law and there
should have been an acquittal or dismissal of the
criminal case for that reason.
We are unable to agree with the petitioner's alternative proposition to
the effect that granting, for argument's sake, that he did promise to
marry the private respondent, the latter is nevertheless also at fault.
According to him, both parties are in pari delicto; hence, pursuant to
Article 1412(1) of the Civil Code and the doctrine laid down
in Batarra vs. Marcos, 32 the private respondent cannot recover
damages from the petitioner. The latter even goes as far as stating that
if the private respondent had "sustained any injury or damage in their
relationship, it is primarily because of her own doing, 33 for:
. . . She is also interested in the petitioner as the
latter will become a doctor sooner or later. Take
notice that she is a plain high school graduate and a
mere employee . . . (Annex "C") or a waitress
(TSN, p. 51, January 25, 1988) in a luncheonette
and without doubt, is in need of a man who can
give her economic security. Her family is in dire
need of financial assistance. (TSN, pp. 51-53, May
18, 1988). And this predicament prompted her to
accept a proposition that may have been offered by
the petitioner. 34
 TORTS – 1ST CASES - 46

These statements reveal the true character and motive of the marriage. It is the solemn duty of parents to protect the honor of their
petitioner. It is clear that he harbors a condescending, if not sarcastic, daughters and infuse upon them the higher values of morality and
regard for the private respondent on account of the latter's ignoble dignity.
birth, inferior educational background, poverty and, as perceived by
him, dishonorable employment. Obviously then, from the very WHEREFORE, finding no reversible error in the challenged decision,
beginning, he was not at all moved by good faith and an honest the instant petition is hereby DENIED, with costs against the
motive. Marrying with a woman so circumstances could not have petitioner.
even remotely occurred to him. Thus, his profession of love and
promise to marry were empty words directly intended to fool, dupe, SO ORDERED.
entice, beguile and deceive the poor woman into believing that
indeed, he loved her and would want her to be his life's partner. His
was nothing but pure lust which he wanted satisfied by a Filipina who
honestly believed that by accepting his proffer of love and proposal of
marriage, she would be able to enjoy a life of ease and security.
Petitioner clearly violated the Filipino's concept of morality and
brazenly defied the traditional respect Filipinos have for their women.
It can even be said that the petitioner committed such deplorable acts
in blatant disregard of Article 19 of the Civil Code which directs
every person to act with justice, give everyone his due and observe
honesty and good faith in the exercise of his rights and in the
performance of his obligations.

No foreigner must be allowed to make a mockery of our laws,

customs and traditions.

The pari delicto rule does not apply in this case for while indeed, the
private respondent may not have been impelled by the purest of
intentions, she eventually submitted to the petitioner in sexual
congress not out of lust, but because of moral seduction. In fact, it is
apparent that she had qualms of conscience about the entire episode
for as soon as she found out that the petitioner was not going to marry
her after all, she left him. She is not, therefore, in pari delicto with the
petitioner. Pari delicto means "in equal fault; in a similar offense or
crime; equal in guilt or in legal fault." 35At most, it could be conceded
that she is merely in delicto.

Equity often interferes for the relief of the less

guilty of the parties, where his transgression has
been brought about by the imposition of undue
influence of the party on whom the burden of the
original wrong principally rests, or where his
consent to the transaction was itself procured by
fraud. 36

In Mangayao vs. Lasud, 37 We declared:

Appellants likewise stress that both parties being at

fault, there should be no action by one against the
other (Art. 1412, New Civil Code). This rule,
however, has been interpreted as applicable only
where the fault on both sides is, more or less,
equivalent. It does not apply where one party is
literate or intelligent and the other one is not. (c.f.
Bough vs. Cantiveros, 40 Phil. 209).

We should stress, however, that while We find for the private

respondent, let it not be said that this Court condones the deplorable
behavior of her parents in letting her and the petitioner stay together
in the same room in their house after giving approval to their
 TORTS – 1ST CASES - 47

FIRST DIVISION
G.R. No. L-33171 May 31, 1979
PORFIRIO P. CINCO, petitioner-appellant,
vs.
HON. MATEO CANONOY, Presiding Judge of the Third
Branch of the Court of First Instance of Cebu, HON. LORENZO
B. BARRIA City Judge of Mandaue City, Second Branch
ROMEO HILOT, VALERIANA PEPITO and CARLOS
PEPITO, respondents-appellees.
damages in the criminal case; that the resolution of the City Court is
interlocutory and, therefore, certiorari is improper; and that the
Petition is defective inasmuch as what petitioner actually desires is a
Writ of mandamus (Annex "R"). Petitioner's Motion for
Reconsideration was denied by respondent Judge in an Order dated
November 14,1970 (Annex "S" and Annex "U").
Hence, this Petition for Review before this Tribunal, to which we
gave due course on February 25, 1971. 3
Petitioner makes these:

Eriberto Seno for appellant. ASSIGNMENTS OF ERROR

Jose M. Mesina for appellees. 1. THE TRIAL COURT, RESPONDENT JUDGE

MATEO CANONOY, ERRED IN HOLDING
THAT THE TRIAL OF THE CIVIL CASE NO.
189 FILED IN THE CITY COURT OF
MANDAUE SHOULD BE SUSPENDED UNTIL
MELENCIO-HERRERA, J.:
AFTER A FINAL JUDGMENT IS RENDERED
IN THE CRIMINAL CASE.
This is a Petition for Review on certiorari of the Decision of the Court
of First Instance of Cebu rendered on November 5, 1970.
2. THAT THE COURT ERRED IN HOLDING
THAT IN ORDER TO AVOID DELAY THE
The background facts to the controversy may be set forth as follows: OFFENDED PARTY MAY SUBMIT HIS CLAIM
FOR DAMAGES IN THE CRIMINAL CASE.
Petitioner herein filed, on February 25, 1970, a Complaint in the City
Court of Mandaue City, Cebu, Branch II, for the recovery of damages 3. THAT THE COURT ERRED IN HOLDING
on account of a vehicular accident involving his automobile and a THAT THE PETITION FOR certiorari IS NOT
jeepney driven by Romeo Hilot and operated by Valeriana Pepito and PROPER, BECAUSE THE RESOLUTION IN
Carlos Pepito, the last three being the private respondents in this suit. QUESTION IS INTERLOCUTORY.
Subsequent thereto, a criminal case was filed against the driver,
Romeo Hilot, arising from the same accident. At the pre-trial in the
4. THAT THE COURT ERRED IN HOLDING
civil case, counsel for private respondents moved to suspend the civil
THAT THE PETITION IS DEFECTIVE. 4
action pending the final determination of the criminal suit, invoking
Rule 111, Section 3 (b) of the Rules of Court, which provides:
all of which can be synthesized into one decisive issue: whether or
not there can be an independent civil action for damage to property
(b) After a criminal action has been commenced. no
during the pendency of the criminal action.
civil action arising from the same offense can be
prosecuted, and the same shall be suspended, in
whatever stage it may be found, until final From the Complaint filed by petitioner before the City Court of
judgment in the criminal proceeding has been Mandaue City, Cebu, it is evident that the nature and character of his
rendered; action was quasi-delictual predicated principally on Articles 2176
and 2180 of the Civil Code, which provide:
The City Court of Mandaue City in an Order dated August 11, 1970,
ordered the suspension of the civil case. Petitioner's Motion for Art. 2176. Whoever by act or omission causes
Reconsideration thereof, having been denied on August 25, damage to another, there being fault or negligence
1970, 1 petitioner elevated the matter on certiorari to the Court of is obliged to pay for the damage done. Such fault or
First Instance of Cebu, respondent Judge presiding, on September 11, negligence, if there is no pre-existing contractual
1970, alleging that the City Judge had acted with grave abuse of relation between the parties, is caned a quasi-
discretion in suspending the civil action for being contrary to law and delict and is governed by the provisions of this
jurisprudence. 2 Chapter. (1902a)

On November 5, 1970, respondent Judge dismissed the Petition for Art. 2180. The obligation imposed by article 2176
certiorari on the ground that there was no grave abuse of discretion on is demandable not only for one's own acts or
the part of the City Court in suspending the civil action inasmuch as omissions but also for those of persons for whom
damage to property is not one of the instances when an independent one is responsible.
civil action is proper; that petitioner has another plain, speedy, and
adequate remedy under the law, which is to submit his claim for xxx xxx xxx

Employers shall be liable for the damages cause 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 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. (1903a)
Thus, plaintiff made the essential averments that it was the fault or
negligence of the driver, Romeo Hilot, in the operation of the jeepney
owned by the Pepitos which caused the collision between his
automobile and said jeepney; that damages were sustained by
petitioner because of the collision; that there was a direct causal
connection between the damages he suffered and the fault and
negligence of private respondents.
Similarly, in the Answer, private respondents contended, among
others, that defendant, Valeriana Pepito, observed due diligence in the
selection and supervision of her employees, particularly of her co-
defendant Romeo Hilot, a defense peculiar to actions based on quasi-
delict. 5
Liability being predicated on quasi-delict the civil case may proceed
as a separate and independent civil action, as specifically provided for
in Article 2177 of the Civil Code.
Art. 2177. Responsibility for fault or negligence
under the preceding article is entirely separate and
distinct from the civil liability arising from
negligence under the Penal Code. But the plaintiff
cannot recover damages twice for the same act or
omission of the defendant. (n)
The crucial distinction between criminal negligence
and quasi-delict, which is readily discernible from
the foregoing codal provision, has been expounded
in Barredo vs. Garcia, et al., 73 Phil. 607, 620-
621, 6 thus:
Firstly, the Revised Penal Code in article 365
punishes not only reckless but also simple
imprudence. if we were to hold that articles 1902 to
1910 of the Civil Code refer only to fault or
negligence not punished by law, according to the
literal import of article 1093 of the Civil Code, the
legal institution of culpa aquiliana would have very
little scope and application in actual life. Death or
injury to persons and damage to property through
any degree of negligence — even the slightest
would have to be indemnified only through the
principle of civil hability arising from crime. In
such a state of affairs, what sphere would remain
for quasidelito or culpa aquiliana We are loath to
TORTS – 1ST CASES - 48
impute to the lawmaker any intention to bring about
a situation so absurd and anomalous. Nor are we, in
the interpretation of the laws, disposed to uphold
the letter that killeth rather than the spirit that
giveth life. We will not use the literal meaning of
the law to smother and render almost lifeless a
principle of such ancient origin and such full-grown
development as culpa aquiliana or quasi-delito,
which is conserved and made enduring in articles
1902 to 11910 of the Spanish Civil Code.
Secondly, to find the accused guilty in a criminal
case, proof of guilt beyond reasonable doubt is
required, while in a civil case, preponderance of
evidence is sufficient to make the defendant pay in
damages. There are numerous cases of criminal
negligence which cannot be shown beyond
reasonable doubt, but can be proved by a
preponderance of evidence. In such cases, the
defendant can and should be made responsible in a
civil action under articles 1902 to 1910 of the Civil
Code, otherwise, there would be many instances of
unvindicated civil wrongs. Ubi jus ibi remedium.
Thirdly, to hold that there is only one way to make
defendants liability effective, and that is, to sue the
driver and exhaust his (the latter's) property first,
would be tantamount to compelling the plaintiff to
follow a devious and cumbersome method of
obtaining a reliel True, there is such a remedy
under our laws, but there is also a more expeditious
way, which is based on the primary and direct
responsibility of the defendant under article 1903 of
the Civil Code. Our view of the law is more likely
to facilitate remedy for civil wrongs because the
procedure indicated by the defendant is wasteful
and productive of delay, it being a matter of
common knowledge that professional drivers of
taxis and similar public conveyances usually do not
have sufficient means with which to pay damages.
Why, then, should the plaintiff be required in all
cases to go through this round-about, unnecessary,
and probably useless procedure? In construing the
laws, courts have endeavored to shorten and
facilitate the pathways of right and justice.
At this juncture, it should be said that the primary
and direct responsibility of employers and their
presumed negligence are principles calculated to
protect society. Workmen and employees should be
carefully chosen and supervised in order to avoid
injury to the public. It is the masters or employers
who principally reap the profits resulting from the
services of these servants and employees. It is but
right that they should guarantee the latter's careful
conduct for the personnel and patrimonial safety of
others. As Theilhard has said, "they should
reproach themselves, at least, some for their
weakness, others for their poor selection and all for
their negligence." And according to Manresa, "It is

much more equitable and just that such
responsibility should fail upon the principal or
director who could have chosen a careful and
prudent employee, and not upon the such employee
because of his confidence in the principal or
director." (Vol. 12, p. 622, 2nd Ed.) Many jurists
also base this primary responsibility of the
employer on the principle of representation of the
principal by the agent. Thus, Oyuelos says in the
work already cited (Vol. 7, p. 747) that before third
persons the employer and employee vienen a ser
como una sola personalidad, por refundicion de la
del dependiente en la de quien la emplea y utihza
(become as one personality by the merging of the
person of the employee in that of him who employs
and utilizes him.) All these observations acquire a
peculiar force and significance when it comes to
motor accidents, and there is need of stressing and
accentuating the responsibility of owners of motor
vehicles.
Fourthly, because of the broad sweep of the
provisions of both the Penal Code and the Civil
Code on this subject, which has given rise to
overlapping or concurrence of spheres already
discussed, and for lack of understanding of the
character and efficacy of the action for
culpaaquiliana there has grown up a common
practice to seek damages only by virtue of the Civil
responsibility arising from crime, forgetting that
there is another remedy, which is by invoking
articles 1902-1910 of the Civil Code. Although this
habitual method is allowed by our laws, it has
nevertheless rendered practically useless and
nugatory the more expeditious and effective
remedy based on culpa aquiliana or culpa extra-
contractual. In the present case, we are asked to
help perpetuate this usual course. But we believe it
is high time we pointed out to the harm done by
such practice and to restore the principle of
responsibility for fault or negligence under articles
1902 et seq. of the Civil Code to its full rigor. It is
high time we cause the stream of quasi-delict or
culpa aquiliana to flow on its own natural channel,
so that its waters may no longer be diverted into
that of a crime under the Penal Code. This will, it is
believed, make for the bet ter safeguarding of
private rights because it re-establishes an ancient
and additional remedy, and for the further reason
that an independent civil action, not depending on
the issues, stations and results of a criminal
prosecution, and entirely directed by the party
wronged or his counsel is more likely to secure
adequate and efficacious redress. (Garcia vs.
Florida 52 SCRA 420, 424-425, Aug. 31, 1973).
(Emphasis supplied)
The separate and independent civil action for a quasi-delict is also
clearly recognized in section 2, Rule 111 of the Rules of Court,
reading:
TORTS – 1ST CASES - 49
Sec. 2. Independent civil action. — In the cases
provided for in Articles 31, 32, 33, 34 and 2177 of
the Civil Code of the Philippines, Are independent
civil action entirely separate and distinct from the c
action, may be brought by the injured party during
the pendency of the criminal case, provided the
right is reserved as required in the preceding
section. Such civil action shag proceed
independently of the criminal prosecution, and shall
require only a preponderance of evidence.
Significant to note is the fact that the foregoing section categorically
lists cases provided for in Article 2177 of the Civil Code, supra, as
allowing of an "independent civil action."
Tested by the hereinabove-quoted legal tenets, it has to be held that
the City Court, in surrounding the civil action, erred in placing
reliance on section 3 (b) of Rule 111 of the Rules of
Court, supra which refers to "other civil actions arising from cases
not included in the section just cited" (i.e., Section 2, Rule 111 above
quoted), in which case 6 once the criminal action has being
commenced, no civil action arising from the same offense can be
prosecuted and the same shall be suspended in whatever stage it may
be found, until final judgment in the criminal proceeding has been
rendered." Stated otherwise, the civil action referred to in Secs. 3(a)
and 3(b) of Rule 111 of the Rules of Court, which should be
suspended after the criminal action has been instituted is that arising
from the criminal offense not the civil action based on quasi-delict
Article 31 of the Civil Code then clearly assumes relevance when it
provides:
Art. 31. When the civil action is based on an
obligation not arising from the act or omission
complained of as a felony, such civil action may
proceed independently of the criminal proceedings
and regardless of the result of the latter.
For obviously, the jural concept of a quasi-delict is that of an
independent source of obligation "not arising from the act or omission
complained of as a felony." Article 1157 of the Civil Code bolsters
this conclusion when it specifically recognizes that:
Art. 1157. Obligations arise from:
(1) Law;
(2) Contracts;
(3) Quasi-contracts;
(4) Acts or omissions punished by law; and
(5) Quasi-delicts. (1089a)
(Emphasis supplied)
 TORTS – 1ST CASES - 50

It bears emphasizing that petitioner's cause of action is based

on quasi-delict. The concept of quasidelica as enunciated in Article
2176 of the Civil Code (supra), is so broad that it includes not only
injuries to persons but also damage to property. 7 It makes no
distinction between "damage to persons" on the one hand and
"damage to property" on the other. Indeed, the word "damage" is used
in two concepts: the "harm" done and "reparation" for the harm done.
And with respect to harm it is plain that it includes both injuries to
person and property since "harm" is not limited to personal but also to
property injuries. In fact, examples of quasi-delict in the law itself
include damage to property. An instance is Article 2191(2) of the
Civil Code which holds proprietors responsible for damages caused
by excessive smoke which may be harmful to persons or property."

In the light of the foregoing disquisition, we are constrained to hold

that respondent Judge gravely abused his discretion in upholding the
Decision of the City Court of Mandaue City, Cebu, suspending the
civil action based on a quasi-delict until after the criminal case is
finally terminated. Having arrived at this conclusion, a discussion of
the other errors assigned becomes unnecessary.

WHEREFORE, granting the Writ of certiorari prayed for, the

Decision of the Court of First Instance of Cebu sought to be reviewed
is hereby set aside, and the City Court of Mandaue City, Cebu,
Branch 11, is hereby ordered to proceed with the hearing of Civil
Case No. 189 of that Court.

Without pronouncement as to costs.

SO ORDERED.

FIRST DIVISION
G.R. No. 110295 October 18, 1993
COCA-COLA BOTTLERS PHILIPPINES, INC.,
vs.
THE HONORABLE COURT OF APPEALS (Fifth Division) and
MS. LYDIA GERONIMO, respondents.
Angara, Abello, Concepcion, Regala & Cruz Law Offices for
petitioner.
Alejandro M. Villamil for private respondent.
DAVIDE, JR., J.:
This case concerns the proprietress of a school canteen which had to
close down as a consequence of the big drop in its sales of soft drinks
triggered by the discovery of foreign substances in certain beverages
sold by it. The interesting issue posed is whether the subsequent
action for damages by the proprietress against the soft drinks
manufacturer should be treated as one for breach of implied warranty
against hidden defects or merchantability, as claimed by the
manufacturer, the petitioner herein which must therefore be filed
within six months from the delivery of the thing sold pursuant to
Article 1571 of the Civil Code, or one for quasi-delict, as held by the
public respondent, which can be filed within four years pursuant to
Article 1146 of the same Code.
On 7 May 1990, Lydia L. Geronimo, the herein private respondent,
filed a complaint for damages against petitioner with the Regional
Trial Court (RTC) of Dagupan City. 1 The case was docketed as Civil
Case No. D-9629. She alleges in her complaint that she was the
proprietress of Kindergarten Wonderland Canteen docketed as
located in Dagupan City, an enterprise engaged in the sale of soft
drinks (including Coke and Sprite) and other goods to the students of
Kindergarten Wonderland and to the public; on or about 12 August
1989, some parents of the students complained to her that the Coke
and Sprite soft drinks sold by her contained fiber-like matter and
other foreign substances or particles; he then went over her stock of
softdrinks and discovered the presence of some fiber-like substances
in the contents of some unopened Coke bottles and a plastic matter in
the contents of an unopened Sprite bottle; she brought the said bottles
to the Regional Health Office of the Department of Health at San
Fernando, La Union, for examination; subsequently, she received a
letter from the Department of Health informing her that the samples
she submitted "are adulterated;" as a consequence of the discovery of
the foreign substances in the beverages, her sales of soft drinks
severely plummeted from the usual 10 cases per day to as low as 2 to
3 cases per day resulting in losses of from P200.00 to P300.00 per
day, and not long after that she had to lose shop on 12 December
1989; she became jobless and destitute; she demanded from the
petitioner the payment of damages but was rebuffed by it. She prayed
for judgment ordering the petitioner to pay her P5,000.00 as actual
damages, P72,000.00 as compensatory damages, P500,000.00 as
moral damages, P10,000.00 as exemplary damages, the amount equal In Singson v. Court of Appeals (23 SCRA 1117), the Supreme Court
to 30% of the damages awarded as attorney's fees, and the costs. 2
TORTS – 1ST CASES - 51
The petitioner moved to dismiss 3 the complaint on the grounds of
failure to exhaust administrative remedies and prescription. Anent the
latter ground, the petitioner argued that since the complaint is for
breach of warranty under Article 1561 of the said Code. In her
Comment 4 thereto, private respondent alleged that the complaint is
one for damages which does not involve an administrative action and
that her cause of action is based on an injury to plaintiff's right which
can be brought within four years pursuant to Article 1146 of the Civil
Code; hence, the complaint was seasonably filed. Subsequent related
pleadings were thereafter filed by the parties. 5
In its Order of 23 January 1991, 6 the trial court granted the motion to
dismiss. It ruled that the doctrine of exhaustion of administrative
remedies does not apply as the existing administrative remedy is not
adequate. It also stated that the complaint is based on a contract, and
not on quasi-delict, as there exists pre-existing contractual relation
between the parties; thus, on the basis of Article 1571, in relation to
Article 1562, the complaint should have been filed within six months
from the delivery of the thing sold.
Her motion for the reconsideration of the order having been denied by
the trial court in its Order of 17 April 1991, 7the private respondent
came to this Court via a petition for review on certiorari which we
referred to the public respondent "for proper determination and
disposition. 8 The public respondent docketed the case as CA-G.R. SP
No. 25391.
In a decision promulgated on 28 January 1992, 9 the public
respondent annulled the questioned orders of the RTC and directed it
to conduct further proceedings in Civil Case No. D-9629. In holding
for the private respondent, it ruled that:
Petitioner's complaint being one for quasi-
delict, and not for breach of warranty as respondent
contends, the applicable prescriptive period is four
years.
It should be stressed that the allegations in the
complaint plainly show that it is an action or
damages arising from respondent's act of
"recklessly and negligently manufacturing
adulterated food items intended to be sold or public
consumption" (p. 25, rollo). It is truism in legal
procedure that what determines the nature of an
action are the facts alleged in the complaint and
those averred as a defense in the defendant's answer
(I Moran 126; Calo v. Roldan, 76 Phil. 445; Alger
Electric, Inc. v. CA, 135 SCRA 340).
Secondly, despite the literal wording of Article
2176 of the Civil code, the existence of contractual
relations between the parties does not absolutely
preclude an action by one against the other
for quasi-delict arising from negligence in the
performance of a contract.
ruled:

It has been repeatedly held: that
the existence of a contract
between the parties does not bar
the commission of a tort by the
one against the other and the
consequent recovery of damages
therefor
. . . . Thus in Air France vs.
Carrascoso, . . . (it was held that)
although the relation between a
passenger and a carrier is
"contractual both in origin and in
nature the act that breaks the
contract may also be a tort.
Significantly, in American jurisprudence, from
which Our law on Sales was taken, the authorities
are one in saying that he availability of an action or
breach of warranty does not bar an action for torts
in a sale of defective goods. 10
Its motion for the reconsideration of the decision having been denied
by the public respondent in its Resolution of 14 May 1993, 11 the
petitioner took his recourse under Rule 45 of the Revised Rules of
Court. It alleges in its petition that:
I.
THE HONORABLE COURT OF APPEALS
COMMITTED A GRAVE AND REVERSIBLE
ERROR IN RULING THAT ARTICLE 2176, THE
GENERAL PROVISION ON QUASI-DELICTS, IS
APPLICABLE IN THIS CASE WHEN THE
ALLEGATIONS OF THE COMPLAINT
CLEARLY SHOW THAT PRIVATE
RESPONDENT'S CAUSE OF ACTION IS
BASEDON BREACH OF A SELLER'S IMPLIED
WARRANTIES UNDER OUR LAW ON SALES. The vendee may also ask for the annulment of the contract upon
II.
CORROLARILY, THE HONORABLE COURT
OF APPEALS COMMITTED A GRAVE AND
REVERSIBLE ERROR IN OVERRULING
PETITIONER'S ARGUMENT THAT PRIVATE
RESPONDENT'S CAUSE OF ACTION HAD
PRESCRIBED UNDER ARTICLE 1571 OF THE contravene the tenor thereof are liable for damages.
CIVIL CODE. 12
The petitioner insists that a cursory reading of the complaint will
reveal that the primary legal basis for private respondent's cause of
action is not Article 2176 of the Civil Code on quasi-delict — for the between the parties may, as a general rule, bar the applicability of the
complaint does not ascribe any tortious or wrongful conduct on its
part — but Articles 1561 and 1562 thereof on breach of a seller's
implied warranties under the law on sales. It contends the existence of a quasi-delict. Thus, in Singson vs. Bank of the Philippine
a contractual relation between the parties (arising from the contract of Islands, this Court stated:
sale) bars the application of the law on quasi-delicts and that since
private respondent's cause of action arose from the breach of implied
warranties, the complaint should have been filed within six months
TORTS – 1ST CASES - 52
room delivery of the soft drinks pursuant to Article 171 of the Civil
Code.
In her Comment the private respondent argues that in case of breach
of the seller's implied warranties, the vendee may, under Article 1567
of the Civil Code, elect between withdrawing from the contract or
demanding a proportionate reduction of the price, with damages in
either case. She asserts that Civil Case No. D-9629 is neither an
action for rescission nor for proportionate reduction of the price, but
for damages arising from a quasi-delict and that the public respondent
was correct in ruling that the existence of a contract did not preclude
the action for quasi-delict. As to the issue of prescription, the private
respondent insists that since her cause of action is based on quasi-
delict, the prescriptive period therefore is four (4) years in accordance
with Article 1144 of the Civil Code and thus the filing of the
complaint was well within the said period.
We find no merit in the petition. The public respondent's conclusion
that the cause of action in Civil Case No. D-9629 is found on quasi-
delict and that, therefore, pursuant to Article 1146 of the Civil Code,
it prescribes in four (4) years is supported by the allegations in the
complaint, more particularly paragraph 12 thereof, which makes
reference to the reckless and negligent manufacture of "adulterated
food items intended to be sold for public consumption."
The vendee's remedies against a vendor with respect to the warranties
against hidden defects of or encumbrances upon the thing sold are not
limited to those prescribed in Article 1567 of the Civil Code which
provides:
Art. 1567. In the case of Articles 1561, 1562, 1564,
1565 and 1566, the vendee may elect between
withdrawing from the contract and demanding a
proportionate reduction of the price, with damages
either
case. 13
proof of error or fraud, in which case the ordinary rule on obligations
shall be applicable. 14 Under the law on obligations, responsibility
arising from fraud is demandable in all obligations and any waiver of
an action for future fraud is void. Responsibility arising from
negligence is also demandable in any obligation, but such liability
may be regulated by the courts, according to the
circumstances. 15 Those guilty of fraud, negligence, or delay in the
performance of their obligations and those who in any manner
16
The vendor could likewise be liable for quasi-delict under Article
2176 of the Civil Code, and an action based thereon may be brought
by the vendee. While it may be true that the pre-existing contract
law on quasi-delict, the liability may itself be deemed to arise
fromquasi-delict, i.e., the acts which breaks the contract may also be
17
We have repeatedly held, however, that the
existence of a contract between the parties does not
 TORTS – 1ST CASES - 53

bar the commission of a tort by the one against the

other and the consequent recovery of damages
therefor. 18 Indeed, this view has been, in effect,
reiterated in a comparatively recent case. Thus,
in Air France vs. Carrascoso, 19 involving an
airplane passenger who, despite hi first-class ticket,
had been illegally ousted from his first-class
accommodation and compelled to take a seat in the
tourist compartment, was held entitled to recover
damages from the air-carrier, upon the ground of
tort on the latter's part, for, although the relation
between the passenger and a carrier is "contractual
both in origin and nature . . . the act that breaks the
contract may also be a tort.

Otherwise put, liability for quasi-delict may still exist

despite the presence of contractual relations. 20

Under American law, the liabilities of a manufacturer or

seller of injury-causing products may be based on
negligence, 21 breach of warranty, 22 tort, 23 or other grounds
such as fraud, deceit, or misrepresentation. 24Quasi-delict, as
defined in Article 2176 of the Civil Code, (which is known
in Spanish legal treaties as culpa aquiliana, culpa extra-
contractual or cuasi-delitos) 25 is homologous but not
identical to tort under the common law, 26 which includes
not only negligence, but also intentional criminal acts, such
as assault and battery, false imprisonment and deceit. 27

It must be made clear that our affirmance of the decision of the public
respondent should by no means be understood as suggesting that the
private respondent's claims for moral damages have sufficient factual
and legal basis.

IN VIEW OF ALL THE FOREGOING, the instant petition is hereby

DENIED for lack of merit, with costs against the petitioner.

SO ORDERED.

SECOND DIVISION
G.R. No. 158995 September 26, 2006
L.G. FOODS CORPORATION and VICTORINO GABOR,
Vice-President and General Manager, petitioners,
vs.
HON. PHILADELFA B. PAGAPONG-AGRAVIADOR, in her
capacity as Presiding Judge of Regional Trial Court, Branch 43,
Bacolod City, and SPS. FLORENTINO and THERESA
VALLEJERA, respondents.
DECISION
GARCIA, J.:
Assailed and sought to be set aside in this petition for review
on certiorari is the Decision1 dated April 25, 2003 of the Court of
Appeals (CA), as reiterated in its Resolution of July 10, 2003, 2 in CA- question is thereby deemed instituted with the criminal action. which
G.R. SP No. 67600, affirming an earlier Order of the Regional Trial
Court (RTC) of Bacolod City, Branch 43, which denied the
petitioners' motion to dismiss in Civil Case No. 99-10845, an action
for damages arising from a vehicular accident thereat instituted by the In an Order dated September 4, 2001, the trial court denied the
herein private respondents - the spouses Florentino Vallejera and
Theresa Vallejera - against the petitioners.
The antecedent facts may be briefly stated as follows:
On February 26, 1996, Charles Vallereja, a 7-year old son of the
spouses Florentino Vallejera and Theresa Vallejera, was hit by a Ford In the herein assailed decision8 dated April 25, 2003, the CA denied
Fiera van owned by the petitioners and driven at the time by their
employee, Vincent Norman Yeneza y Ferrer. Charles died as a result challenged issuance:
of the accident.
In time, an Information for Reckless Imprudence Resulting to
Homicide was filed against the driver before the Municipal Trial
Court in Cities (MTCC), Bacolod City, docketed as Criminal Case
No. 67787, entitled People of the Philippines v. Vincent Norman
Yeneza.
Unfortunately, before the trial could be concluded, the accused driver
committed suicide, evidently bothered by conscience and remorse.
On account thereof, the MTCC, in its order of September 30, 1998,
dismissed the criminal case.
On June 23, 1999, in the RTC of Bacolod City, the spouses Vallejera
filed a complaint3 for damages against the petitioners as employers of
the deceased driver, basically alleging that as such employers, they
failed to exercise due diligence in the selection and supervision of
their employees. Thereat docketed as Civil Case No. 99-10845, the
complaint was raffled to Branch 43 of the court.
In their Answer with Compulsory Counterclaim,4 the petitioners as
defendants denied liability for the death of the Vallejeras' 7-year old
son, claiming that they had exercised the required due diligence in the
selection and supervision of their employees, including the deceased
driver. They thus prayed in their Answer for the dismissal of the
TORTS – 1ST CASES - 54
complaint for lack of cause of action on the part of the Vallejera
couple.
During pre-trial, the defendant petitioners insisted that their dismissal
prayer be resolved. Hence, the trial court required them to file within
ten days a memorandum of authorities supportive of their position.
Instead, however, of the required memorandum of authorities, the
defendant petitioners filed a Motion to Dismiss, principally arguing
that the complaint is basically a "claim for subsidiary liability against
an employer" under the provision of Article 103 5 of the Revised
Penal Code. Prescinding therefrom, they contend that there must first
be a judgment of conviction against their driver as a condition sine
qua non to hold them liable. Ergo, since the driver died during the
pendency of the criminal action, the sine qua non condition for their
subsidiary liability was not fulfilled, hence the of lack of cause of
action on the part of the plaintiffs. They further argue that since the
plaintiffs did not make a reservation to institute a separate action for
damages when the criminal case was filed, the damage suit in
was already dismissed.
6
motion to dismiss for lack of merit and set the case for pre-trial. With
their motion for reconsideration having been denied by the same
court in its subsequent order7 of September 26, 2001, the petitioners
then went on certiorari to the CA in CA-G.R. SP No. 67600, imputing
grave abuse of discretion on the part of the trial judge in refusing to
dismiss the basic complaint for damages in Civil Case No. 99-10845.
the petition and upheld the trial court. Partly says the CA in its
xxx xxx xxx
It is clear that the complaint neither represents nor implies
that the responsibility charged was the petitioner's subsidiary
liability under Art. 103, Revised Penal Code. As pointed out
[by the trial court] in the Order of September 4, 2001,
the complaint does not even allege the basic elements for
such a liability, like the conviction of the accused employee
and his insolvency. Truly enough, a civil action to enforce
subsidiary liability separate and distinct from the criminal
action is even unnecessary.
xxx xxx xxx
Specifically, Civil Case No. 99-10845 exacts responsibility
for fault or negligence under Art. 2176, Civil Code, which is
entirely separate and distinct from the civil liability arising
from negligence under the Revised Penal Code. Verily,
therefore, the liability under Art. 2180, Civil Code, is direct
and immediate, and not conditioned upon prior recourse
against the negligent employee or prior showing of the
latter's insolvency. (Underscoring in the original.)

In time, the petitioners moved for a reconsideration but their motion
was denied by the CA in its resolution9 of July 10, 2003. Hence, the
petitioners' present recourse on their submission that the appellate
court committed reversible error in upholding the trial court's denial
of their motion to dismiss.
We DENY.
As the Court sees it, the sole issue for resolution is whether the
spouses Vallejeras' cause of action in Civil Case No. 99-10845 is
founded on Article 103 of the Revised Penal Code, as maintained by
the petitioners, or derived from Article 2180 10 of the Civil Code, as
ruled by the two courts below.
It thus behooves us to examine the allegations of the complaint for
damages in Civil Case No. 99-10845. That complaint alleged, inter
alia, as follows:
xxx xxx xxx
3. That defendant [LG Food Corporation] is the registered
owner of a Ford Fiera Van with Plate No. NMS 881 and
employer sometime February of 1996 of one Vincent
Norman Yeneza y Ferrer, a salesman of said corporation;
4. That sometime February 26, 1996 at around 2:00 P.M. at
Rosario St., Bacolod City, the minor son of said plaintiffs
[now respondents], Charles Vallejera, 7 years old, was hit
and bumped by above-described vehicle then driven by said
employee, Vincent Norman Yeneza y Ferrer;
5. That the mishap was due to the gross fault and negligence
of defendant's employee, who drove said vehicle, recklessly,
negligently and at a high speed without regard to traffic
condition and safety of other road users and likewise to the
fault and negligence of the owner employer, herein
defendants LG Food Corporation who failed to exercise due
diligence in the selection and supervision of his employee,
Vincent Norman Yeneza y Ferrer;
6. That as a result of said incident, plaintiffs' son suffered
multiple body injuries which led to his untimely demise on
that very day;
7. That a criminal case was filed against the defendant's
employee, docketed as Criminal Case No. 67787, (earlier
filed as Crim. Case No. 96-17570 before RTC) before MTC-
Branch III, entitled "People v. Yeneza" for "Reckless
Imprudence resulting to Homicide," but the same was
dismissed because pending litigation, then remorse-stricken
[accused] committed suicide;
xxx xxx xxx
8. That the injuries and complications as well as the resultant diligence of a good father of the family. On the other hand, if the
death suffered by the late minor Charles Vallejera were due action chosen is for culpa criminal, the plaintiff can hold the
to the negligence and imprudence of defendant's employee; employer subsidiarily
TORTS – 1ST CASES - 55
9. That defendant LG Foods Corporation is civilly liable
for the negligence/imprudence of its employee since it
failed to exercise the necessary diligence required of a
good father of the family in the selection and supervision
of his employee, Vincent Norman Yeneza y Ferrer which
diligence if exercised, would have prevented said
incident. (Bracketed words and emphasis ours.)
Nothing in the foregoing allegations suggests, even remotely, that the
herein petitioners are being made to account for their subsidiary
liability under Article 103 of the Revised Penal Code. As correctly
pointed out by the trial court in its order of September 4, 2001
denying the petitioners' Motion to Dismiss, the complaint did not
even aver the basic elements for the subsidiary liability of an
employer under Article 103 of the Revised Penal Code, such as the
prior conviction of the driver in the criminal case filed against him
nor his insolvency.
Admittedly, the complaint did not explicitly state that plaintiff
Vallejeras were suing the defendant petitioners for damages based
on quasi-delict. Clear it is, however, from the allegations of the
complaint that quasi-delict was their choice of remedy against the
petitioners. To stress, the plaintiff spouses alleged in their complaint
gross fault and negligence on the part of the driver and the failure of
the petitioners, as employers, to exercise due diligence in the
selection and supervision of their employees. The spouses further
alleged that the petitioners are civilly liable for the
negligence/imprudence of their driver since they failed to exercise the
necessary diligence required of a good father of the family in the
selection and supervision of their employees, which diligence, if
exercised, could have prevented the vehicular accident that resulted to
the death of their 7-year old son.
Section 2, Rule 2, of the 1997 Rules of Civil Procedure defines cause
of action as the "act or omission by which a party violates the right of
another." Such act or omission gives rise to an obligation which may
come from law, contracts, quasi contracts, delicts or quasi-delicts.11
Corollarily, an act or omission causing damage to another may give
rise to two separate civil liabilities on the part of the offender, i.e., 1)
civil liability ex delicto;12 and 2) independent civil liabilities, such as
those (a) not arising from an act or omission complained of as felony
(e.g., culpa contractual or obligations arising from law;13 the
intentional torts;14 and culpa aquiliana15); or (b) where the injured
party is granted a right to file an action independent and distinct from
the criminal action.16 Either of these two possible liabilities may be
enforced against the offender.17
Stated otherwise, victims of negligence or their heirs have a choice
between an action to enforce the civil liability arising from culpa
criminal under Article 100 of the Revised Penal Code, and an action
for quasi-delict (culpa aquiliana) under Articles 2176 to 2194 of the
Civil Code. If, as here, the action chosen is for quasi-delict, the
plaintiff may hold the employer liable for the negligent act of its
employee, subject to the employer's defense of exercise of the
liable only upon proof of prior conviction of its
employee.18
 TORTS – 1ST CASES - 56

Article 116119 of the Civil Code provides that civil obligation arising Citing Maniago v. CA,25 petitioner would argue that Civil Case No.
from criminal offenses shall be governed by penal laws subject to the 99-10845 should have been dismissed for failure of the respondent
provision of Article 217720 and of the pertinent provision of Chapter spouses to make a reservation to institute a separate civil action for
2, Preliminary Title on Human Relation, and of Title XVIII of this damages when the criminal case against the driver was filed.
Book, regulating damages. Plainly, Article 2177 provides for the
alternative remedies the plaintiff may choose from in case the The argument is specious.
obligation has the possibility of arising indirectly from the
delict/crime or directly from quasi-delict/tort. The choice is with the To start with, the petitioners' reliance on Maniago is obviously
plaintiff who makes known his cause of action in his initiatory misplaced. There, the civil case was filed while the criminal case
pleading or complaint,21 and not with the defendant who can not ask
against the employee was still pending. Here, the criminal case
for the dismissal of the plaintiff's cause of action or lack of it based
against the employee driver was prematurely terminated due to his
on the defendant's perception that the plaintiff should have opted to
death. Precisely, Civil Case No. 99-10845 was filed by the respondent
file a claim under Article 103 of the Revised Penal Code.
spouses because no remedy can be obtained by them against the
petitioners with the dismissal of the criminal case against their driver
Under Article 2180 of the Civil Code, the liability of the employer is during the pendency thereof.
direct or immediate. It is not conditioned upon prior recourse against
the negligent employee and a prior showing of insolvency of such
The circumstance that no reservation to institute a separate civil
employee.22
action for damages was made when the criminal case was filed is of
no moment for the simple reason that the criminal case was dismissed
Here, the complaint sufficiently alleged that the death of the couple's without any pronouncement having been made therein. In reality,
minor son was caused by the negligent act of the petitioners' driver; therefor, it is as if there was no criminal case to speak of in the first
and that the petitioners themselves were civilly liable for the place. And for the petitioners to insist for the conviction of their
negligence of their driver for failing "to exercise the necessary driver as a condition sine qua non to hold them liable for damages is
diligence required of a good father of the family in the selection and to ask for the impossible.
supervision of [their] employee, the driver, which diligence, if
exercised, would have prevented said accident."
IN VIEW WHEREOF, the instant petition is DENIED for lack of
merit.
Had the respondent spouses elected to sue the petitioners based on
Article 103 of the Revised Penal Code, they would have alleged that Costs against the petitioners.
the guilt of the driver had been proven beyond reasonable doubt; that
such accused driver is insolvent; that it is the subsidiary liability of
the defendant petitioners as employers to pay for the damage done by SO ORDERED.
their employee (driver) based on the principle that every person
criminally liable is also civilly liable.23 Since there was no conviction
in the criminal case against the driver, precisely because death
intervened prior to the termination of the criminal proceedings, the
spouses' recourse was, therefore, to sue the petitioners for their direct
and primary liability based on quasi-delict.

Besides, it is worthy to note that the petitioners, in their Answer with

Compulsory Counter-Claim,24 repeatedly made mention of Article
2180 of the Civil Code and anchored their defense on their allegation
that "they had exercised due diligence in the selection and supervision
of [their] employees." The Court views this defense as an admission
that indeed the petitioners acknowledged the private respondents'
cause of action as one for quasi-delict under Article 2180 of the Civil
Code.

All told, Civil Case No. 99-10845 is a negligence suit brought under
Article 2176 - Civil Code to recover damages primarily from the
petitioners as employers responsible for their negligent driver
pursuant to 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 of persons for whom one is responsible.
Thus, the employer is liable for damages caused by his employees
and household helpers acting within the scope of their assigned tasks,
even though the former is not engaged in any business or industry.
 TORTS – 1ST CASES - 57

FIRST DIVISION common carrier in case of loss, damage or deterioration of goods

during transport under 1735 of the Civil Code is not availing.

Thus, the laws governing the contract between the owner of the cargo
[G.R. No. 141910. August 6, 2002] to whom the plaintiff was subrogated and the owner of the vehicle
which transports the cargo are the laws on obligation and contract of
the Civil Code as well as the law on quasi delicts.

FGU INSURANCE CORPORATION, petitioner, vs. G.P. Under the law on obligation and contract, negligence or fault is not
SARMIENTO TRUCKING CORPORATION and presumed. The law on quasi delict provides for some presumption of
LAMBERT M. EROLES, respondents. negligence but only upon the attendance of some
circumstances. Thus, Article 2185 provides:
DECISION
Art. 2185. Unless there is proof to the contrary, it is presumed that a
VITUG, J.:
person driving a motor vehicle has been negligent if at the time of the
mishap, he was violating any traffic regulation.
G.P. Sarmiento Trucking Corporation (GPS) undertook to deliver
on 18 June 1994 thirty (30) units of Condura S.D. white refrigerators
Evidence for the plaintiff shows no proof that defendant was violating
aboard one of its Isuzu truck, driven by Lambert Eroles, from the plant
any traffic regulation. Hence, the presumption of negligence is not
site of Concepcion Industries, Inc., along South Superhighway in
obtaining.
Alabang, Metro Manila, to the Central Luzon Appliances in Dagupan
City. While the truck was traversing the north diversion road along
McArthur highway in Barangay Anupol, Bamban, Tarlac, it collided Considering that plaintiff failed to adduce evidence that defendant is
with an unidentified truck, causing it to fall into a deep canal, resulting a common carrier and defendants driver was the one negligent,
in damage to the cargoes. defendant cannot be made liable for the damages of the subject
cargoes.[2]
FGU Insurance Corporation (FGU), an insurer of the shipment,
paid to Concepcion Industries, Inc., the value of the covered cargoes in The subsequent motion for reconsideration having been
the sum of P204,450.00. FGU, in turn, being the subrogee of the rights denied,[3] plaintiff interposed an appeal to the Court of Appeals,
and interests of Concepcion Industries, Inc., sought reimbursement of contending that the trial court had erred (a) in holding that the appellee
the amount it had paid to the latter from GPS. Since the trucking corporation was not a common carrier defined under the law and
company failed to heed the claim, FGU filed a complaint for damages existing jurisprudence; and (b) in dismissing the complaint on a
and breach of contract of carriage against GPS and its driver Lambert demurrer to evidence.
Eroles with the Regional Trial Court, Branch 66, of Makati City. In its
answer, respondents asserted that GPS was the exclusive hauler only The Court of Appeals rejected the appeal of petitioner and ruled
of Concepcion Industries, Inc., since 1988, and it was not so engaged in favor of GPS. The appellate court, in its decision of 10 June
in business as a common carrier. Respondents further claimed that the 1999, [4] discoursed, among other things, that -
cause of damage was purely accidental.
"x x x in order for the presumption of negligence provided for under
The issues having thus been joined, FGU presented its evidence,
the law governing common carrier (Article 1735, Civil Code) to arise,
establishing the extent of damage to the cargoes and the amount it had
the appellant must first prove that the appellee is a common
paid to the assured. GPS, instead of submitting its evidence, filed with
carrier. Should the appellant fail to prove that the appellee is a
leave of court a motion to dismiss the complaint by way of demurrer
common carrier, the presumption would not arise; consequently, the
to evidence on the ground that petitioner had failed to prove that it was
appellant would have to prove that the carrier was negligent.
a common carrier.
The trial court, in its order of 30 April 1996,[1] granted the motion "x x x x x x x x x
to dismiss, explaining thusly:
"Because it is the appellant who insists that the appellees can still be
Under Section 1 of Rule 131 of the Rules of Court, it is provided that considered as a common carrier, despite its `limited clientele,
Each party must prove his own affirmative allegation, xxx. (assuming it was really a common carrier), it follows that it
(appellant) has the burden of proving the same. It (plaintiff-appellant)
In the instant case, plaintiff did not present any single evidence that `must establish his case by a preponderance of evidence, which
would prove that defendant is a common carrier. means that the evidence as a whole adduced by one side is superior to
that of the other. (Summa Insurance Corporation vs. Court of
xxxxxxxxx Appeals, 243 SCRA 175). This, unfortunately, the appellant failed to
do -- hence, the dismissal of the plaintiffs complaint by the trial court
is justified.
Accordingly, the application of the law on common carriers is not
warranted and the presumption of fault or negligence on the part of a
"x x x x x x x x x
 TORTS – 1ST CASES - 58

"Based on the foregoing disquisitions and considering the In culpa contractual, upon which the action of petitioner rests as
circumstances that the appellee trucking corporation has been `its being the subrogee of Concepcion Industries, Inc., the mere proof of
exclusive contractor, hauler since 1970, defendant has no choice but the existence of the contract and the failure of its compliance
to comply with the directive of its principal, the inevitable conclusion justify, prima facie, a corresponding right of relief.[11] The law,
is that the appellee is a private carrier. recognizing the obligatory force of contracts,[12] will not permit a party
to be set free from liability for any kind of misperformance of the
"x x x x x x x x x contractual undertaking or a contravention of the tenor thereof. [13] A
breach upon the contract confers upon the injured party a valid cause
"x x x the lower court correctly ruled that 'the application of the law for recovering that which may have been lost or suffered. The remedy
serves to preserve the interests of the promisee that may include his
on common carriers is not warranted and the presumption of fault or
expectation interest, which is his interest in having the benefit of his
negligence on the part of a common carrier in case of loss, damage or
bargain by being put in as good a position as he would have been in
deterioration of good[s] during transport under [article] 1735 of the
had the contract been performed, or his reliance interest, which is his
Civil Code is not availing.' x x x.
interest in being reimbursed for loss caused by reliance on the contract
by being put in as good a position as he would have been in had the
"Finally, We advert to the long established rule that conclusions and contract not been made; or his restitution interest, which is his interest
findings of fact of a trial court are entitled to great weight on appeal in having restored to him any benefit that he has conferred on the other
and should not be disturbed unless for strong and valid reasons." [5] party.[14] Indeed, agreements can accomplish little, either for their
makers or for society, unless they are made the basis for action.[15] The
Petitioner's motion for reconsideration was likewise effect of every infraction is to create a new duty, that is, to make
denied;[6] hence, the instant petition,[7] raising the following issues: recompense to the one who has been injured by the failure of another
to observe his contractual obligation[16] unless he can show extenuating
I
circumstances, like proof of his exercise of due diligence (normally
that of the diligence of a good father of a family or, exceptionally by
WHETHER RESPONDENT GPS MAY BE CONSIDERED AS A stipulation or by law such as in the case of common carriers, that of
COMMON CARRIER AS DEFINED UNDER THE LAW AND extraordinary diligence) or of the attendance of fortuitous event, to
EXISTING JURISPRUDENCE. excuse him from his ensuing liability.

II Respondent trucking corporation recognizes the existence of a

contract of carriage between it and petitioners assured, and admits that
the cargoes it has assumed to deliver have been lost or damaged while
WHETHER RESPONDENT GPS, EITHER AS A COMMON
in its custody. In such a situation, a default on, or failure of compliance
CARRIER OR A PRIVATE CARRIER, MAY BE PRESUMED TO
with, the obligation in this case, the delivery of the goods in its custody
HAVE BEEN NEGLIGENT WHEN THE GOODS IT
to the place of destination - gives rise to a presumption of lack of care
UNDERTOOK TO TRANSPORT SAFELY WERE
and corresponding liability on the part of the contractual obligor the
SUBSEQUENTLY DAMAGED WHILE IN ITS PROTECTIVE
burden being on him to establish otherwise. GPS has failed to do so.
CUSTODY AND POSSESSION.
Respondent driver, on the other hand, without concrete proof of
III his negligence or fault, may not himself be ordered to pay
petitioner. The driver, not being a party to the contract of carriage
WHETHER THE DOCTRINE OF RES IPSA LOQUITUR IS between petitioners principal and defendant, may not be held liable
APPLICABLE IN THE INSTANT CASE. under the agreement. A contract can only bind the parties who have
entered into it or their successors who have assumed their personality
or their juridical position.[17] Consonantly with the axiom res inter
On the first issue, the Court finds the conclusion of the trial court
alios acta aliis neque nocet prodest, such contract can neither favor nor
and the Court of Appeals to be amply justified. GPS, being an
prejudice a third person. Petitioners civil action against the driver can
exclusive contractor and hauler of Concepcion Industries, Inc.,
only be based on culpa aquiliana, which, unlike culpa
rendering or offering its services to no other individual or entity, cannot
contractual, would require the claimant for damages to prove
be considered a common carrier. Common carriers are persons,
negligence or fault on the part of the defendant.[18]
corporations, firms or associations engaged in the business of carrying
or transporting passengers or goods or both, by land, water, or air, for A word in passing. Res ipsa loquitur, a doctrine being invoked by
hire or compensation, offering their services to the public,[8] whether
petitioner, holds a defendant liable where the thing which caused the
to the public in general or to a limited clientele in particular, but never
injury complained of is shown to be under the latters management and
on an exclusive basis.[9] The true test of a common carrier is the the accident is such that, in the ordinary course of things, cannot be
carriage of passengers or goods, providing space for those who opt to
expected to happen if those who have its management or control use
avail themselves of its transportation service for a fee. [10] Givenproper care. It affords reasonable evidence, in the absence of
accepted standards, GPS scarcely falls within the term common carrier.
explanation by the defendant, that the accident arose from want of
care.[19] It is not a rule of substantive law and, as such, it does not create
The above conclusion nothwithstanding, GPS cannot escape from
an independent ground of liability. Instead, it is regarded as a mode of
liability.
proof, or a mere procedural convenience since it furnishes a substitute
for, and relieves the plaintiff of, the burden of producing specific proof
 TORTS – 1ST CASES - 59

of negligence. The maxim simply places on the defendant the burden

of going forward with the proof.[20] Resort to the doctrine, however,
may be allowed only when (a) the event is of a kind which does not
ordinarily occur in the absence of negligence; (b) other responsible
causes, including the conduct of the plaintiff and third persons, are
sufficiently eliminated by the evidence; and (c) the indicated
negligence is within the scope of the defendant's duty to the
plaintiff.[21] Thus, it is not applicable when an unexplained accident
may be attributable to one of several causes, for some of which the
defendant could not be responsible.[22]
Res ipsa loquitur generally finds relevance whether or not a
contractual relationship exists between the plaintiff and the defendant,
for the inference of negligence arises from the circumstances and
nature of the occurrence and not from the nature of the relation of the
parties.[23] Nevertheless, the requirement that responsible causes other
than those due to defendants conduct must first be eliminated, for the
doctrine to apply, should be understood as being confined only to cases
of pure (non-contractual) tort since obviously the presumption of
negligence in culpa contractual, as previously so pointed out,
immediately attaches by a failure of the covenant or its tenor. In the
case of the truck driver, whose liability in a civil action is predicated
on culpa acquiliana, while he admittedly can be said to have been in
control and management of the vehicle which figured in the accident,
it is not equally shown, however, that the accident could have been
exclusively due to his negligence, a matter that can allow,
forthwith, res ipsa loquitur to work against him.
If a demurrer to evidence is granted but on appeal the order of
dismissal is reversed, the movant shall be deemed to have waived the
right to present evidence.[24] Thus, respondent corporation may no
longer offer proof to establish that it has exercised due care in
transporting the cargoes of the assured so as to still warrant a remand
of the case to the trial court.
WHEREFORE, the order, dated 30 April 1996, of the Regional
Trial Court, Branch 66, of Makati City, and the decision, dated 10 June
1999, of the Court of Appeals, are AFFIRMED only insofar as
respondent Lambert M. Eroles is concerned, but said assailed order of
the trial court and decision of the appellate court are REVERSED as
regards G.P. Sarmiento Trucking Corporation which, instead, is hereby
ordered to pay FGU Insurance Corporation the value of the damaged
and lost cargoes in the amount of P204,450.00. No costs.
SO ORDERED.

SECOND DIVISION
[G.R. No. 122039. May 31, 2000]
VICENTE CALALAS, petitioner, vs. COURT OF APPEALS,
ELIZA JUJEURCHE SUNGA and FRANCISCO
SALVA, respondents.
D E C I S I ON
MENDOZA, J.:
This is a petition for review on certiorari of the decision[1] of the
Court of Appeals, dated March 31, 1991, reversing the contrary
decision of the Regional Trial Court, Branch 36, Dumaguete City,
and awarding damages instead to private respondent Eliza Jujeurche
Sunga as plaintiff in an action for breach of contract of carriage.
The facts, as found by the Court of Appeals, are as follows:
At 10 oclock in the morning of August 23, 1989, private respondent
Eliza Jujeurche G. Sunga, then a college freshman majoring in
Physical Education at the Siliman University, took a passenger
jeepney owned and operated by petitioner Vicente Calalas. As the
jeepney was filled to capacity of about 24 passengers, Sunga was
given by the conductor an "extension seat," a wooden stool at the
back of the door at the rear end of the vehicle. Sclaw
On the way to Poblacion Sibulan, Negros Occidental, the jeepney
stopped to let a passenger off. As she was seated at the rear of the
vehicle, Sunga gave way to the outgoing passenger. Just as she was
doing so, an Isuzu truck driven by Iglecerio Verena and owned by
Francisco Salva bumped the left rear portion of the jeepney. As a
result, Sunga was injured. She sustained a fracture of the "distal third
of the left tibia-fibula with severe necrosis of the underlying skin."
Closed reduction of the fracture, long leg circular casting, and case
wedging were done under sedation. Her confinement in the hospital
lasted from August 23 to September 7, 1989. Her attending physician,
Dr. Danilo V. Oligario, an orthopedic surgeon, certified she would
remain on a cast for a period of three months and would have to
ambulate in crutches during said period.
On October 9, 1989, Sunga filed a complaint for damages against
Calalas, alleging violation of the contract of carriage by the former in
failing to exercise the diligence required of him as a common carrier.
Calalas, on the other hand, filed a third-party complaint against
Francisco Salva, the owner of the Isuzu truck. Korte
The lower court rendered judgment against Salva as third-party
defendant and absolved Calalas of liability, holding that it was the
driver of the Isuzu truck who was responsible for the accident. It took
cognizance of another case (Civil Case No. 3490), filed by Calalas
against Salva and Verena, for quasi-delict, in which Branch 37 of the
same court held Salva and his driver Verena jointly liable to Calalas
for the damage to his jeepney. Rtcspped
On appeal to the Court of Appeals, the ruling of the lower court was
reversed on the ground that Sungas cause of action was based on a
TORTS – 1ST CASES - 60
contract of carriage, not quasi-delict, and that the common carrier
failed to exercise the diligence required under the Civil Code. The
appellate court dismissed the third-party complaint against Salva and
adjudged Calalas liable for damages to Sunga. The dispositive portion
of its decision reads:
WHEREFORE, the decision appealed from is
hereby REVERSED and SET ASIDE, and another
one is entered ordering defendant-appellee Vicente
Calalas to pay plaintiff-appellant:
(1) P50,000.00 as actual and compensatory
damages;
(2) P50,000.00 as moral damages;
(3) P10,000.00 as attorneys fees; and
(4) P1,000.00 as expenses of litigation; and
(5) to pay the costs.
SO ORDERED.
Hence, this petition. Petitioner contends that the ruling in Civil Case
No. 3490 that the negligence of Verena was the proximate cause of
the accident negates his liability and that to rule otherwise would be
to make the common carrier an insurer of the safety of its passengers.
He contends that the bumping of the jeepney by the truck owned by
Salva was a caso fortuito. Petitioner further assails the award of
moral damages to Sunga on the ground that it is not supported by
evidence. Sdaadsc
The petition has no merit.
The argument that Sunga is bound by the ruling in Civil Case No.
3490 finding the driver and the owner of the truck liable for quasi-
delict ignores the fact that she was never a party to that case and,
therefore, the principle of res judicata does not apply. Missdaa
Nor are the issues in Civil Case No. 3490 and in the present case the
same. The issue in Civil Case No. 3490 was whether Salva and his
driver Verena were liable for quasi-delict for the damage caused to
petitioners jeepney. On the other hand, the issue in this case is
whether petitioner is liable on his contract of carriage. The first,
quasi-delict, also known as culpa aquiliana or culpa extra
contractual, has as its source the negligence of the tortfeasor. The
second, breach of contract or culpa contractual, is premised upon the
negligence in the performance of a contractual obligation.
Consequently, in quasi-delict, the negligence or fault should be
clearly established because it is the basis of the action, whereas in
breach of contract, the action can be prosecuted merely by proving
the existence of the contract and the fact that the obligor, in this case
the common carrier, failed to transport his passenger safely to his
destination.[2] In case of death or injuries to passengers, Art. 1756 of
the Civil Code provides that common carriers are presumed to have
been at fault or to have acted negligently unless they prove that they
 TORTS – 1ST CASES - 61

observed extraordinary diligence as defined in Arts. 1733 and 1755 of First, as found by the Court of Appeals, the jeepney was not properly
the Code. This provision necessarily shifts to the common carrier the parked, its rear portion being exposed about two meters from the
burden of proof. Slxmis broad shoulders of the highway, and facing the middle of the highway
in a diagonal angle. This is a violation of the R.A. No. 4136, as
There is, thus, no basis for the contention that the ruling in Civil Case amended, or the Land Transportation and Traffic Code, which
No. 3490, finding Salva and his driver Verena liable for the damage provides:
to petitioners jeepney, should be binding on Sunga. It is immaterial
that the proximate cause of the collision between the jeepney and the Sec. 54. Obstruction of Traffic. - No person shall
truck was the negligence of the truck driver. The doctrine of drive his motor vehicle in such a manner as to
proximate cause is applicable only in actions for quasi-delict, not in obstruct or impede the passage of any vehicle, nor,
actions involving breach of contract. The doctrine is a device for while discharging or taking on passengers or
imputing liability to a person where there is no relation between him loading or unloading freight, obstruct the free
and another party. In such a case, the obligation is created by law passage of other vehicles on the highway.
itself. But, where there is a pre-existing contractual relation between
the parties, it is the parties themselves who create the obligation, and Second, it is undisputed that petitioners driver took in more
the function of the law is merely to regulate the relation thus created. passengers than the allowed seating capacity of the jeepney, a
Insofar as contracts of carriage are concerned, some aspects regulated violation of 32(a) of the same law. It provides: Mesm
by the Civil Code are those respecting the diligence required of
common carriers with regard to the safety of passengers as well as the Exceeding registered capacity. - No person
presumption of negligence in cases of death or injury to passengers. It operating any motor vehicle shall allow more
provides: Slxsc
passengers or more freight or cargo in his vehicle
than its registered capacity.
Art. 1733. Common carriers, from the nature of
their business and for reasons of public policy, are The fact that Sunga was seated in an "extension seat" placed her in a
bound to observe extraordinary diligence in the
peril greater than that to which the other passengers were exposed.
vigilance over the goods and for the safety of the
Therefore, not only was petitioner unable to overcome the
passengers transported by them, according to all the
presumption of negligence imposed on him for the injury sustained
circumstances of each case.
by Sunga, but also, the evidence shows he was actually negligent in
transporting passengers. Calrky
Such extraordinary diligence in the vigilance over
the goods is further expressed in articles 1734,
We find it hard to give serious thought to petitioners contention that
1735, and 1746, Nos. 5,6, and 7, while the
Sungas taking an "extension seat" amounted to an implied assumption
extraordinary diligence for the safety of the
of risk. It is akin to arguing that the injuries to the many victims of
passengers is further set forth in articles 1755 and the tragedies in our seas should not be compensated merely because
1756. those passengers assumed a greater risk of drowning by boarding an
overloaded ferry. This is also true of petitioners contention that the
Art. 1755. A common carrier is bound to carry the jeepney being bumped while it was improperly parked
passengers safely as far as human care and constitutes caso fortuito. A caso fortuito is an event which could not
foresight can provide, using the utmost diligence of be foreseen, or which, though foreseen, was inevitable. [3] This
very cautious persons, with due regard for all the requires that the following requirements be present: (a) the cause of
circumstances. the breach is independent of the debtors will; (b) the event is
unforeseeable or unavoidable; (c) the event is such as to render it
Art. 1756. In case of death of or injuries to impossible for the debtor to fulfill his obligation in a normal manner,
passengers, common carriers are presumed to have and (d) the debtor did not take part in causing the injury to the
been at fault or to have acted negligently, unless creditor.[4] Petitioner should have foreseen the danger of parking his
they prove that they observed extraordinary jeepney with its body protruding two meters into the highway. Kycalr
diligence as prescribed by articles 1733 and 1755.
Finally, petitioner challenges the award of moral damages alleging
In the case at bar, upon the happening of the accident, the that it is excessive and without basis in law. We find this contention
presumption of negligence at once arose, and it became the duty of well taken.
petitioner to prove that he had to observe extraordinary diligence in
the care of his passengers. Scslx In awarding moral damages, the Court of Appeals stated: Kyle

Now, did the driver of jeepney carry Sunga "safely as far as human
care and foresight could provide, using the utmost diligence of very
cautious persons, with due regard for all the circumstances" as
required by Art. 1755? We do not think so. Several factors militate
against petitioners contention. Slx
Plaintiff-appellant at the time of the accident was a
first-year college student in that school year 1989-
1990 at the Silliman University, majoring in
Physical Education. Because of the injury, she was
not able to enroll in the second semester of that
 TORTS – 1ST CASES - 62

school year. She testified that she had no more

intention of continuing with her schooling, because
she could not walk and decided not to pursue her
degree, major in Physical Education "because of
my leg which has a defect already."

Plaintiff-appellant likewise testified that even while

she was under confinement, she cried in pain
because of her injured left foot. As a result of her
injury, the Orthopedic Surgeon also certified that
she has "residual bowing of the fracture side." She
likewise decided not to further pursue Physical
Education as her major subject, because "my left
leg x x x has a defect already."

Those are her physical pains and moral sufferings,

the inevitable bedfellows of the injuries that she
suffered. Under Article 2219 of the Civil Code, she
is entitled to recover moral damages in the sum of
P50,000.00, which is fair, just and reasonable.

As a general rule, moral damages are not recoverable in actions for

damages predicated on a breach of contract for it is not one of the
items enumerated under Art. 2219 of the Civil Code. [5] As an
exception, such damages are recoverable: (1) in cases in which the
mishap results in the death of a passenger, as provided in Art. 1764,
in relation to Art. 2206(3) of the Civil Code; and (2) in the cases in
which the carrier is guilty of fraud or bad faith, as provided in Art.
2220.[6]

In this case, there is no legal basis for awarding moral damages since
there was no factual finding by the appellate court that petitioner
acted in bad faith in the performance of the contract of carriage.
Sungas contention that petitioners admission in open court that the
driver of the jeepney failed to assist her in going to a nearby hospital
cannot be construed as an admission of bad faith. The fact that it was
the driver of the Isuzu truck who took her to the hospital does not
imply that petitioner was utterly indifferent to the plight of his injured
passenger. If at all, it is merely implied recognition by Verena that he
was the one at fault for the accident. Exsm

WHEREFORE, the decision of the Court of Appeals, dated March

31, 1995, and its resolution, dated September 11, 1995, are
AFFIRMED, with the MODIFICATION that the award of moral
damages is DELETED.

SO ORDERED.
 TORTS – 1ST CASES - 63

EN BANC caused temporary unconsciousness and required medical attention for

several days.
G.R. No. L-12219 March 15, 1918
The question presented for decision is whether or not the defendant in
AMADO PICART, plaintiff-appellant, maneuvering his car in the manner above described was guilty of
vs. negligence such as gives rise to a civil obligation to repair the damage
FRANK SMITH, JR., defendant-appellee. done; and we are of the opinion that he is so liable. As the defendant
started across the bridge, he had the right to assume that the horse and
the rider would pass over to the proper side; but as he moved toward
Alejo Mabanag for appellant.
the center of the bridge it was demonstrated to his eyes that this
G. E. Campbell for appellee.
would not be done; and he must in a moment have perceived that it
was too late for the horse to cross with safety in front of the moving
STREET, J.: vehicle. In the nature of things this change of situation occurred while
the automobile was yet some distance away; and from this moment it
In this action the plaintiff, Amado Picart, seeks to recover of the was not longer within the power of the plaintiff to escape being run
defendant, Frank Smith, jr., the sum of P31,000, as damages alleged down by going to a place of greater safety. The control of the
to have been caused by an automobile driven by the defendant. From situation had then passed entirely to the defendant; and it was his duty
a judgment of the Court of First Instance of the Province of La Union either to bring his car to an immediate stop or, seeing that there were
absolving the defendant from liability the plaintiff has appealed. no other persons on the bridge, to take the other side and pass
sufficiently far away from the horse to avoid the danger of collision.
The occurrence which gave rise to the institution of this action took Instead of doing this, the defendant ran straight on until he was
place on December 12, 1912, on the Carlatan Bridge, at San almost upon the horse. He was, we think, deceived into doing this by
Fernando, La Union. It appears that upon the occasion in question the the fact that the horse had not yet exhibited fright. But in view of the
plaintiff was riding on his pony over said bridge. Before he had known nature of horses, there was an appreciable risk that, if the
gotten half way across, the defendant approached from the opposite animal in question was unacquainted with automobiles, he might get
direction in an automobile, going at the rate of about ten or twelve exited and jump under the conditions which here confronted him.
miles per hour. As the defendant neared the bridge he saw a horseman When the defendant exposed the horse and rider to this danger he
on it and blew his horn to give warning of his approach. He continued was, in our opinion, negligent in the eye of the law.
his course and after he had taken the bridge he gave two more
successive blasts, as it appeared to him that the man on horseback The test by which to determine the existence of negligence in a
before him was not observing the rule of the road. particular case may be stated as follows: Did the defendant in doing
the alleged negligent act use that person would have used in the same
The plaintiff, it appears, saw the automobile coming and heard the situation? If not, then he is guilty of negligence. The law here in
warning signals. However, being perturbed by the novelty of the effect adopts the standard supposed to be supplied by the imaginary
apparition or the rapidity of the approach, he pulled the pony closely conduct of the discreet paterfamilias of the Roman law. The existence
up against the railing on the right side of the bridge instead of going of negligence in a given case is not determined by reference to the
to the left. He says that the reason he did this was that he thought he personal judgment of the actor in the situation before him. The law
did not have sufficient time to get over to the other side. The bridge is considers what would be reckless, blameworthy, or negligent in the
shown to have a length of about 75 meters and a width of 4.80 man of ordinary intelligence and prudence and determines liability by
meters. As the automobile approached, the defendant guided it toward that.
his left, that being the proper side of the road for the machine. In so
doing the defendant assumed that the horseman would move to the The question as to what would constitute the conduct of a prudent
other side. The pony had not as yet exhibited fright, and the rider had man in a given situation must of course be always determined in the
made no sign for the automobile to stop. Seeing that the pony was light of human experience and in view of the facts involved in the
apparently quiet, the defendant, instead of veering to the right while particular case. Abstract speculations cannot here be of much value
yet some distance away or slowing down, continued to approach but this much can be profitably said: Reasonable men govern their
directly toward the horse without diminution of speed. When he had conduct by the circumstances which are before them or known to
gotten quite near, there being then no possibility of the horse getting them. They are not, and are not supposed to be, omniscient of the
across to the other side, the defendant quickly turned his car future. Hence they can be expected to take care only when there is
sufficiently to the right to escape hitting the horse alongside of the something before them to suggest or warn of danger. Could a prudent
railing where it as then standing; but in so doing the automobile man, in the case under consideration, foresee harm as a result of the
passed in such close proximity to the animal that it became frightened course actually pursued? If so, it was the duty of the actor to take
and turned its body across the bridge with its head toward the railing. precautions to guard against that harm. Reasonable foresight of harm,
In so doing, it as struck on the hock of the left hind leg by the flange followed by ignoring of the suggestion born of this prevision, is
of the car and the limb was broken. The horse fell and its rider was always necessary before negligence can be held to exist. Stated in
thrown off with some violence. From the evidence adduced in the these terms, the proper criterion for determining the existence of
case we believe that when the accident occurred the free space where negligence in a given case is this: Conduct is said to be negligent
the pony stood between the automobile and the railing of the bridge when a prudent man in the position of the tortfeasor would have
was probably less than one and one half meters. As a result of its foreseen that an effect harmful to another was sufficiently probable to
injuries the horse died. The plaintiff received contusions which warrant his foregoing conduct or guarding against its consequences.
 TORTS – 1ST CASES - 64

Applying this test to the conduct of the defendant in the present case court of a justice of the peace. In this connection it appears that soon
we think that negligence is clearly established. A prudent man, placed after the accident in question occurred, the plaintiff caused criminal
in the position of the defendant, would in our opinion, have proceedings to be instituted before a justice of the peace charging the
recognized that the course which he was pursuing was fraught with defendant with the infliction of serious injuries (lesiones graves). At
risk, and would therefore have foreseen harm to the horse and the the preliminary investigation the defendant was discharged by the
rider as reasonable consequence of that course. Under these magistrate and the proceedings were dismissed. Conceding that the
circumstances the law imposed on the defendant the duty to guard acquittal of the defendant at the trial upon the merits in a criminal
against the threatened harm. prosecution for the offense mentioned would be res adjudicata upon
the question of his civil liability arising from negligence -- a point
It goes without saying that the plaintiff himself was not free from upon which it is unnecessary to express an opinion -- the action of the
fault, for he was guilty of antecedent negligence in planting himself justice of the peace in dismissing the criminal proceeding upon the
on the wrong side of the road. But as we have already stated, the preliminary hearing can have no effect. (See U. S. vs. Banzuela and
defendant was also negligent; and in such case the problem always is Banzuela, 31 Phil. Rep., 564.)
to discover which agent is immediately and directly responsible. It
will be noted that the negligent acts of the two parties were not From what has been said it results that the judgment of the lower
contemporaneous, since the negligence of the defendant succeeded court must be reversed, and judgment is her rendered that the plaintiff
the negligence of the plaintiff by an appreciable interval. Under these recover of the defendant the sum of two hundred pesos (P200), with
circumstances the law is that the person who has the last fair chance costs of other instances. The sum here awarded is estimated to
to avoid the impending harm and fails to do so is chargeable with the include the value of the horse, medical expenses of the plaintiff, the
consequences, without reference to the prior negligence of the other loss or damage occasioned to articles of his apparel, and lawful
party. interest on the whole to the date of this recovery. The other damages
claimed by the plaintiff are remote or otherwise of such character as
The decision in the case of Rkes vs. Atlantic, Gulf and Pacific Co. (7 not to be recoverable. So ordered.
Phil. Rep., 359) should perhaps be mentioned in this connection. This
Court there held that while contributory negligence on the part of the
person injured did not constitute a bar to recovery, it could be
received in evidence to reduce the damages which would otherwise
have been assessed wholly against the other party. The defendant
company had there employed the plaintiff, as a laborer, to assist in
transporting iron rails from a barge in Manila harbor to the company's
yards located not far away. The rails were conveyed upon cars which
were hauled along a narrow track. At certain spot near the water's
edge the track gave way by reason of the combined effect of the
weight of the car and the insecurity of the road bed. The car was in
consequence upset; the rails slid off; and the plaintiff's leg was caught
and broken. It appeared in evidence that the accident was due to the
effects of the typhoon which had dislodged one of the supports of the
track. The court found that the defendant company was negligent in
having failed to repair the bed of the track and also that the plaintiff
was, at the moment of the accident, guilty of contributory negligence
in walking at the side of the car instead of being in front or behind. It
was held that while the defendant was liable to the plaintiff by reason
of its negligence in having failed to keep the track in proper repair
nevertheless the amount of the damages should be reduced on
account of the contributory negligence in the plaintiff. As will be seen
the defendant's negligence in that case consisted in an omission only.
The liability of the company arose from its responsibility for the
dangerous condition of its track. In a case like the one now before us,
where the defendant was actually present and operating the
automobile which caused the damage, we do not feel constrained to
attempt to weigh the negligence of the respective parties in order to
apportion the damage according to the degree of their relative fault. It
is enough to say that the negligence of the defendant was in this case
the immediate and determining cause of the accident and that the
antecedent negligence of the plaintiff was a more remote factor in the
case.

A point of minor importance in the case is indicated in the special

defense pleaded in the defendant's answer, to the effect that the
subject matter of the action had been previously adjudicated in the