ELCANO VS.

HILL
G.R. No. L-24803 May 26, 1977
PEDRO ELCANO and PATRICIA ELCANO, in their capacity 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.
Marvin R. Hill & Associates for appellees.

BARREDO, J.:
Appeal from the order of the Court of First Instance of Quezon City dated January 29, 1965 in
Civil Case No. Q-8102, Pedro Elcano et al. vs. Reginald Hill et al. dismissing, upon motion to
dismiss of defendants, the complaint of plaintiffs for recovery of damages from defendant
Reginald Hill, a minor, married at the time of the occurrence, and his father, the defendant Marvin
Hill, with whom he was living and getting subsistence, for the killing by Reginald of the son of
the plaintiffs, named Agapito Elcano, of which, when criminally prosecuted, the said accused was
acquitted on the ground that his act was not criminal, because of "lack of intent to kill, coupled
with mistake."
Actually, the motion to dismiss based on the following grounds:
1. The present action is not only against but a violation of section 1, Rule 107, which is now Rule
III, of the Revised Rules of Court;
2. The action is barred by a prior judgment which is now final and or in res-adjudicata;
3. The complaint had no cause of action against defendant Marvin Hill, because he was relieved
as guardian of the other defendant through emancipation by marriage.
(P. 23, Record [p. 4, Record on Appeal.])
was first denied by the trial court. It was only upon motion for reconsideration of the defendants
of such denial, reiterating the above grounds that the following order was issued:
Considering the motion for reconsideration filed by the defendants on January 14, 1965 and after
thoroughly examining the arguments therein contained, the Court finds the same to be meritorious
and well-founded.
WHEREFORE, the Order of this Court on December 8, 1964 is hereby reconsidered by ordering
the dismissal of the above entitled case.
SO ORDERED.
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:
THE LOWER COURT ERRED IN DISMISSING THE CASE BY UPHOLDING THE CLAIM
OF DEFENDANTS THAT -
I
THE PRESENT ACTION IS NOT ONLY AGAINST BUT ALSO A VIOLATION OF SECTION
1, RULE 107, NOW RULE 111, OF THE REVISED RULES OF COURT, AND THAT
SECTION 3(c) OF RULE 111, RULES OF COURT IS APPLICABLE;

1
II
THE ACTION IS BARRED BY A PRIOR JUDGMENT WHICH IS NOW FINAL OR RES-
ADJUDICTA;
III
THE PRINCIPLES OF QUASI-DELICTS, ARTICLES 2176 TO 2194 OF THE CIVIL CODE,
ARE INAPPLICABLE IN THE INSTANT CASE; and
IV
THAT THE COMPLAINT STATES NO CAUSE OF ACTION AGAINST DEFENDANT
MARVIN HILL BECAUSE HE WAS RELIEVED AS GUARDIAN OF THE OTHER
DEFENDANT THROUGH EMANCIPATION BY MARRIAGE. (page 4, Record.)
It appears that for the killing of the son, Agapito, of plaintiffs-appellants, defendant- appellee
Reginald Hill was prosecuted criminally in Criminal Case No. 5102 of the Court of First Instance
of Quezon City. After due trial, he was acquitted on the ground that his act was not criminal
because of "lack of intent to kill, coupled with mistake." Parenthetically, none of the parties has
favored Us with a copy of the decision of acquittal, presumably because appellants do 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

2
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
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

3
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 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

4
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 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.
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

5
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 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.

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 BARREDO VS GARCIA
G.R. No. L-48006 July 8, 1942
FAUSTO BARREDO, petitioner,
vs.
SEVERINO GARCIA and TIMOTEA ALMARIO, respondents.
Celedonio P. Gloria and Antonio Barredo for petitioner.
Jose G. Advincula for respondents.
BOCOBO, J.:
This case comes up from the Court of Appeals which held the petitioner herein, Fausto Barredo,
liable in damages for the death of Faustino Garcia caused by the negligence of Pedro Fontanilla, a
taxi driver employed by said Fausto Barredo.
At about half past one in the morning of May 3, 1936, on the road between Malabon and Navotas,
Province of Rizal, there was a head-on collision between a taxi of the Malate Taxicab driven by
Pedro Fontanilla and a carretela guided by Pedro Dimapalis. The carretela was overturned, and
one of its passengers, 16-year-old boy Faustino Garcia, suffered injuries from which he died two
days later. A criminal action was filed against Fontanilla in the Court of First Instance of Rizal,
and he was convicted and sentenced to an indeterminate sentence of one year and one day to two
years of prision correccional. The court in the criminal case granted the petition that the right to
bring a separate civil action be reserved. The Court of Appeals affirmed the sentence of the lower
court in the criminal case. Severino Garcia and Timotea Almario, parents of the deceased on March
7, 1939, brought an action in the Court of First Instance of Manila against Fausto Barredo as the
sole proprietor of the Malate Taxicab and employer of Pedro Fontanilla. On July 8, 1939, the Court
of First Instance of Manila awarded damages in favor of the plaintiffs for P2,000 plus legal interest
from the date of the complaint. This decision was modified by the Court of Appeals by reducing
the damages to P1,000 with legal interest from the time the action was instituted. It is undisputed
that Fontanilla 's negligence was the cause of the mishap, as he was driving on the wrong side of
the road, and at high speed. As to Barredo's responsibility, the Court of Appeals found:
... It is admitted that defendant is Fontanilla's employer. There is proof that he exercised the
diligence of a good father of a family to prevent damage. (See p. 22, appellant's brief.) In fact it is
shown he was careless in employing Fontanilla who had been caught several times for violation
of the Automobile Law and speeding (Exhibit A) — violation which appeared in the records of
the Bureau of Public Works available to be public and to himself. Therefore, he must indemnify
plaintiffs under the provisions of article 1903 of the Civil Code.
The main theory of the defense is that the liability of Fausto Barredo is governed by the Revised
Penal Code; hence, his liability is only subsidiary, and as there has been no civil action against
Pedro Fontanilla, the person criminally liable, Barredo cannot be held responsible in the case. The
petitioner's brief states on page 10:
... The Court of Appeals holds that the petitioner is being sued for his failure to exercise all the
diligence of a good father of a family in the selection and supervision of Pedro Fontanilla to prevent
damages suffered by the respondents. In other words, The Court of Appeals insists on applying in
the case article 1903 of the Civil Code. Article 1903 of the Civil Code is found in Chapter II, Title
16, Book IV of the Civil Code. This fact makes said article to a civil liability arising from a crime
as in the case at bar simply because Chapter II of Title 16 of Book IV of the Civil Code, in the

7
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.

8
Owners or directors of an establishment or business are equally liable for any damages caused by
their employees while engaged in the branch of the service in which employed, or on occasion of
the performance of their duties.
The State is subject to the same liability when it acts through a special agent, but not if the damage
shall have been caused by the official upon whom properly devolved the duty of doing the act
performed, in which case the provisions of the next preceding article shall be applicable.
Finally, teachers or directors of arts trades are liable for any damages caused by their pupils or
apprentices while they are under their custody.
The liability imposed by this article shall cease in case the persons mentioned therein prove that
they are exercised all the diligence of a good father of a family to prevent the damage.
ART. 1904. Any person who pays for damage caused by his employees may recover from the
latter what he may have paid.
REVISED PENAL CODE
ART. 100. Civil liability of a person guilty of felony. — Every person criminally liable for a felony
is also civilly liable.
ART. 101. Rules regarding civil liability in certain cases. — The exemption from criminal liability
established in subdivisions 1, 2, 3, 5, and 6 of article 12 and in subdivision 4 of article 11 of this
Code does not include exemption from civil liability, which shall be enforced to the following
rules:
First. In cases of subdivision, 1, 2 and 3 of article 12 the civil liability for acts committed by any
imbecile or insane person, and by a person under nine years of age, or by one over nine but under
fifteen years of age, who has acted without discernment shall devolve upon those having such
person under their legal authority or control, unless it appears that there was no fault or negligence
on their part.
Should there be no person having such insane, imbecile or minor under his authority, legal
guardianship, or control, or if such person be insolvent, said insane, imbecile, or minor shall
respond with their own property, excepting property exempt from execution, in accordance with
the civil law.
Second. In cases falling within subdivision 4 of article 11, the person for whose benefit the harm
has been prevented shall be civilly liable in proportion to the benefit which they may have received.
The courts shall determine, in their sound discretion, the proportionate amount for which each one
shall be liable.
When the respective shares can not be equitably determined, even approximately, or when the
liability also attaches to the Government, or to the majority of the inhabitants of the town, and, in
all events, whenever the damage has been caused with the consent of the authorities or their agents,
indemnification shall be made in the manner prescribed by special laws or regulations.
Third. In cases falling within subdivisions 5 and 6 of article 12, the persons using violence or
causing the fear shall be primarily liable and secondarily, or, if there be no such persons, those
doing the act shall be liable, saving always to the latter that part of their property exempt from
execution.
ART. 102. Subsidiary civil liability of innkeepers, tavern keepers and proprietors of establishment.
— In default of persons criminally liable, innkeepers, tavern keepers, and any other persons or
corporation shall be civilly liable for crimes committed in their establishments, in all cases where

9
a violation of municipal ordinances or some general or special police regulation shall have been
committed by them or their employees.
Innkeepers are also subsidiarily liable for the restitution of goods taken by robbery or theft within
their houses lodging therein, or the person, or for the payment of the value thereof, provided that
such guests shall have notified in advance the innkeeper himself, or the person representing him,
of the deposit of such goods within the inn; and shall furthermore have followed the directions
which such innkeeper or his representative may have given them with respect to the care of and
vigilance over such goods. No liability shall attach in case of robbery with violence against or
intimidation against or intimidation of persons unless committed by the innkeeper's employees.
ART. 103. Subsidiary civil liability of other persons. — The subsidiary liability established in the
next preceding article shall also apply to employers, teachers, persons, and corporations engaged
in any kind of industry for felonies committed by their servants, pupils, workmen, apprentices, or
employees in the discharge of their duties.
xxx xxx xxx
ART. 365. Imprudence and negligence. — Any person who, by reckless imprudence, shall commit
any act which, had it been intentional, would constitute a grave felony, shall suffer the penalty of
arresto mayor in its maximum period to prision correccional in its minimum period; if it would
have constituted a less grave felony, the penalty of arresto mayor in its minimum and medium
periods shall be imposed.
Any person who, by simple imprudence or negligence, shall commit an act which would otherwise
constitute a grave felony, shall suffer the penalty of arresto mayor in its medium and maximum
periods; if it would have constituted a less serious felony, the penalty of arresto mayor in its
minimum period shall be imposed."
It will thus be seen that while the terms of articles 1902 of the Civil Code seem to be broad enough
to cover the driver's negligence in the instant case, nevertheless article 1093 limits cuasi-delitos to
acts or omissions "not punishable by law." But inasmuch as article 365 of the Revised Penal Code
punishes not only reckless but even simple imprudence or negligence, the fault or negligence under
article 1902 of the Civil Code has apparently been crowded out. It is this overlapping that makes
the "confusion worse confounded." However, a closer study shows that such a concurrence of
scope in regard to negligent acts does not destroy the distinction between the civil liability arising
from a crime and the responsibility for cuasi-delitos or culpa extra-contractual. The same negligent
act causing damages may produce civil liability arising from a crime under article 100 of the
Revised Penal Code, or create an action for cuasi-delito or culpa extra-contractual under articles
1902-1910 of the Civil Code.
The individuality of cuasi-delito or culpa extra-contractual looms clear and unmistakable. This
legal institution is of ancient lineage, one of its early ancestors being the Lex Aquilia in the Roman
Law. In fact, in Spanish legal terminology, this responsibility is often referred to as culpa aquiliana.
The Partidas also contributed to the genealogy of the present fault or negligence under the Civil
Code; for instance, Law 6, Title 15, of Partida 7, says: "Tenudo es de fazer emienda, porque, como
quier que el non fizo a sabiendas en 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

10
provides that this kind of obligation shall be governed by Chapter II of Title XVI of Book IV,
meaning articles 1902-0910. This portion of the Civil Code is exclusively devoted to the legal
institution of culpa aquiliana.
Some of the differences between crimes under the Penal Code and the culpa aquiliana or cuasi-
delito under the Civil Code are:
1. That crimes affect the public interest, while cuasi-delitos are only of private concern.
2. That, consequently, the Penal Code punishes or corrects the criminal act, while the Civil Code,
by means of indemnification, merely repairs the damage.
3. That delicts are not as broad as quasi-delicts, because the former are punished only if there is a
penal law clearly covering them, while the latter, cuasi-delitos, include all acts in which "any king
of fault or negligence intervenes." However, it should be noted that not all violations of the penal
law produce civil responsibility, such as begging in contravention of ordinances, violation of the
game laws, infraction of the rules of traffic when nobody is hurt. (See Colin and Capitant, "Curso
Elemental de Derecho Civil," Vol. 3, p. 728.)
Let us now ascertain what some jurists say on the separate existence of quasi-delicts and the
employer's primary and direct liability under article 1903 of the Civil Code.
Dorado Montero in his essay on "Responsibilidad" in the "Enciclopedia Juridica Española" (Vol.
XXVII, p. 414) says:
El concepto juridico de la responsabilidad civil abarca diversos aspectos y comprende a diferentes
personas. Asi, existe una responsabilidad civil propiamente dicha, que en ningun casl lleva
aparejada responsabilidad criminal alguna, y otra que es consecuencia indeclinable de la penal que
nace de todo delito o falta."
The juridical concept of civil responsibility has various aspects and comprises different persons.
Thus, there is a civil responsibility, properly speaking, which in no case carries with it any criminal
responsibility, and another which is a necessary consequence of the penal liability as a result of
every felony or misdemeanor."
Maura, an outstanding authority, was consulted on the following case: There had been a collision
between two trains belonging respectively to the Ferrocarril Cantabrico and the Ferrocarril del
Norte. An employee of the latter had been prosecuted in a criminal case, in which the company
had been made a party as subsidiarily responsible in civil damages. The employee had been
acquitted in the criminal case, and the employer, the Ferrocarril del Norte, had also been
exonerated. The question asked was whether the Ferrocarril Cantabrico could still bring a civil
action for damages against the Ferrocarril del Norte. Maura's opinion was in the affirmative, stating
in part (Maura, Dictamenes, Vol. 6, pp. 511-513):
Quedando las cosas asi, a proposito de la realidad pura y neta de los hechos, todavia menos parece
sostenible que exista cosa juzgada acerca de la obligacion civil de indemnizar los quebrantos y
menoscabos inferidos por el choque de los trenes. El titulo en que se funda la accion para demandar
el resarcimiento, no puede confundirse con las responsabilidades civiles nacidas de delito, siquiera
exista en este, sea el cual sea, una culpa rodeada de notas agravatorias que motivan sanciones
penales, mas o menos severas. La lesion causada por delito o falta en los derechos civiles, requiere
restituciones, reparaciones o indemnizaciones, que cual la pena misma 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

11
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 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

12
rights requires restitutions, reparations, or indemnifications which, like the penalty itself, affect
public order; for this reason, they are ordinarily entrusted to the office of the prosecuting attorney;
and it is clear that if by this means the losses and damages are repaired, the injured party no longer
desires to seek another relief; but this coincidence of effects does not eliminate the peculiar nature
of civil actions to ask for indemnity.
Such civil actions in the present case (without referring to contractual faults which are not pertinent
and belong to another scope) are derived, according to article 1902 of the Civil Code, from every
act or omission causing losses and damages in which culpa or negligence intervenes. It is
unimportant that such actions are every day filed before the civil courts without the criminal courts
interfering therewith. Articles 18 to 21 and 121 to 128 of the Penal Code, bearing in mind the spirit
and the social and political purposes of that Code, develop and regulate the matter of civil
responsibilities arising from a crime, separately from the regime under common law,
of culpa which is known as aquiliana, in accordance with legislative precedent of the Corpus Juris.
It would be unwarranted to make a detailed comparison between the former provisions and that
regarding the obligation to indemnify on account of civil culpa; but it is pertinent and necessary
to point out to one of such differences.
Articles 20 and 21 of the Penal Code, after distriburing in their own way the civil responsibilities
among those who, for different reasons, are guilty of felony or misdemeanor, make such civil
responsibilities applicable to enterprises and establishments for which the guilty parties render
service, but with subsidiary character, that is to say, according to the wording of the Penal Code, in
default of those who are criminally responsible. In this regard, the Civil Code does not coincide
because article 1903 says: "The obligation imposed by the next preceding article is demandable,
not only for personal acts and omissions, but also for those of persons for whom another is
responsible." Among the persons enumerated are the subordinates and employees of
establishments or enterprises, either for acts during their service or on the occasion of their
functions. It is for this reason that it happens, and it is so observed in judicial decisions, that the
companies or enterprises, after taking part in the criminal cases because of their subsidiary civil
responsibility by reason of the crime, are sued and sentenced directly and separately with regard
to the obligation, before the civil courts.
Seeing that the title of this obligation is different, and the separation between punitive justice and
the civil courts being a true postulate of our judicial system, so that they have different fundamental
norms in different codes, as well as different modes of procedure, and inasmuch as the 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.

13
Laurent, a jurist who has written a monumental work on the French Civil Code, on which the
Spanish Civil Code is largely based and whose provisions on cuasi-delito or culpa extra-
contractual are similar to those of the Spanish Civil Code, says, referring to article 1384 of the
French Civil Code which corresponds to article 1903, Spanish Civil Code:
The action can be brought directly against the person responsible (for another), without including
the author of the act. The action against the principal is accessory in the sense that it implies the
existence of a prejudicial act committed by the employee, but it is not subsidiary in the sense that
it can not be instituted till after the judgment against the author of the act or at least, that it is
subsidiary to the principal action; the action for responsibility (of the employer) is in itself a
principal action. (Laurent, Principles of French Civil Law, Spanish translation, Vol. 20, pp. 734-
735.)
Amandi, in his "Cuestionario del Codigo Civil Reformado" (Vol. 4, pp. 429, 430), declares that
the responsibility of the employer is principal and not subsidiary. He writes:
Cuestion 1. La responsabilidad declarada en el articulo 1903 por las acciones u omisiones de
aquellas personas por las que se debe responder, es subsidiaria? es principal? Para contestar a esta
pregunta es necesario saber, en primer lugar, en que se funda el precepto legal. Es que realmente
se impone una responsabilidad por una falta ajena? Asi parece a primera vista; pero semejante
afirmacion seria contraria a la justicia y a la maxima universal, segun la que las faltas son
personales, y cada uno responde de aquellas que le son imputables. La responsabilidad de que
tratamos se impone con ocasion de un delito o culpa, pero no por causa de ellos, sino por causa
del causi delito, esto es, de la imprudencia o de la negligencia del padre, del tutor, del 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.

14
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 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

15
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

16
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:
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

17
relation between the parties litigant and, therefore, article 371 of the Code of Commerce, on which
the decision appealed from is based, is not applicable; but it limits to asking for reparation for
losses and damages produced on the patrimony of the plaintiff on account of the unjustified
and fraudulent refusal of the carrier to deliver the goods consigned to the plaintiff as stated by the
sentence, and the carrier's responsibility is clearly laid down in article 1902 of the Civil
Code which binds, in virtue of the next article, the defendant company, because the latter is
connected with the person who caused the damage by relations of economic character and by
administrative hierarchy. (Emphasis supplied.)
The above case is pertinent because it shows that the same act may come under both the Penal
Code and the Civil Code. In that case, the action of the agent was unjustified and fraudulent and
therefore could have been the subject of a criminal action. And yet, it was held to be also a proper
subject of a civil action under article 1902 of the Civil Code. It is also to be noted that it was the
employer and not the employee who was being sued.
Let us now examine the cases previously decided by this Court.
In the leading case of Rakes vs. Atlantic Gulf and Pacific Co. (7 Phil., 359, 362-365 [year 1907]),
the trial court awarded damages to the plaintiff, a laborer of the defendant, because the latter had
negligently failed to repair a tramway in consequence of which the rails slid off while iron was
being transported, and caught the plaintiff whose leg was broken. This Court held:
It is contended by the defendant, as its first defense to the action that the necessary conclusion
from these collated laws is that the remedy for injuries through negligence lies only in a criminal
action in which the official criminally responsible must be made primarily liable and his employer
held only subsidiarily to him. According to this theory the plaintiff should have procured the arrest
of the representative of the company accountable for not repairing the track, and on his prosecution
a suitable fine should have been imposed, payable primarily by him and secondarily by his
employer.
This reasoning misconceived the plan of the Spanish codes upon this subject. Article 1093 of the
Civil Code makes obligations arising from faults or negligence not punished by the law, subject to
the provisions of Chapter II of Title XVI. Section 1902 of that chapter reads:
"A person who by an act or omission causes damage to another when there is fault or negligence
shall be obliged to repair the damage so done.
"SEC. 1903. The obligation imposed by the preceeding article is demandable, not only for personal
acts and omissions, but also for those of the persons for whom they should be responsible.
"The father, and on his death or incapacity, the mother, is liable for the damages caused by the
minors who live with them.
xxx xxx xxx
"Owners or directors of an establishment or enterprise are equally liable for the damages caused
by their employees in the service of the branches in which the latter may be employed or in the
performance of their duties.
xxx xxx xxx
"The liability referred to in this article shall cease when the persons mentioned therein prove that
they employed all the diligence of a good father of a family to avoid the damage."
As an answer to the argument urged in this particular action it may be sufficient to point out that
nowhere in our general statutes is the employer penalized for failure to provide or maintain safe

18
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

19
code. A typical application of this distinction may be found in the consequences of a railway
accident due to defective machinery supplied by the employer. His liability to his employee would
arise out of the contract of employment, that to the passengers out of the contract for passage,
while that to the injured bystander would originate in the negligent act itself.
In Manzanares vs. Moreta, 38 Phil., 821 (year 1918), the mother of the 8 of 9-year-old child
Salvador Bona brought a civil action against Moreta to recover damages resulting from the death
of the child, who had been run over by an automobile driven and managed by the defendant. The
trial court rendered judgment requiring the defendant to pay the plaintiff the sum of P1,000 as
indemnity: This Court in affirming the judgment, said in part:
If it were true that the defendant, in coming from the southern part of Solana Street, had to stop
his auto before crossing Real Street, because he had met vehicles which were going along the latter
street or were coming from the opposite direction along Solana Street, it is to be believed that,
when he again started to run his auto across said Real Street and to continue its way along Solana
Street northward, he should have adjusted the speed of the auto which he was operating until he
had fully crossed Real Street and had completely reached a clear way on Solana Street. But, as the
child was run over by the auto precisely at the entrance of Solana Street, this accident could not
have occurred if the auto had been running at a slow speed, aside from the fact that the defendant,
at the moment of crossing Real Street and entering Solana Street, in a northward direction, could
have seen the child in the act of crossing the latter street from the sidewalk on the right to that on
the left, and if the accident had occurred in such a way that after the automobile had run over the
body of the child, and the child's body had already been stretched out on the ground, the automobile
still moved along a distance of about 2 meters, this circumstance shows the fact that the automobile
entered Solana Street from Real Street, at a high speed without the defendant having blown the
horn. If these precautions had been taken by the defendant, the deplorable accident which caused
the death of the child would not have occurred.
It will be noticed that the defendant in the above case could have been prosecuted in a criminal
case because his negligence causing the death of the child was punishable by the Penal Code. Here
is therefore a clear instance of the same act of negligence being a proper subject-matter either of a
criminal action with its consequent civil liability arising from a crime or of an entirely separate
and independent civil action for fault or negligence under article 1902 of the Civil Code. Thus, in
this jurisdiction, the separate individually of a cuasi-delito or culpa aquiliana under the Civil Code
has been fully and clearly recognized, even with regard to a negligent act for which the wrongdoer
could have been prosecuted and convicted in a criminal case and for which, after such a conviction,
he could have been sued for this civil liability arising from his crime.
Years later (in 1930) this Court had another occasion to apply the same doctrine. In Bernal and
Enverso vs. House and Tacloban Electric & Ice Plant, Ltd., 54 Phil., 327, the parents of the five-
year-old child, Purificacion Bernal, brought a civil action to recover damages for the child's death
as a result of burns caused by the fault and negligence of the defendants. On the evening of April
10, 1925, the Good Friday procession was held in Tacloban, Leyte. Fortunata Enverso with her
daughter Purificacion Bernal had come from another municipality to attend the same. After the
procession the mother and the daughter with two others were passing along Gran Capitan Street in
front of the offices of the Tacloban Electric & Ice Plant, Ltd., owned by defendants J. V. House,
when an automobile appeared from the opposite direction. The little girl, who was slightly ahead

20
of the rest, was so frightened by the automobile that she turned to run, but unfortunately she fell
into the street gutter where hot water from the electric plant was flowing. The child died that same
night from the burns. The trial courts dismissed the action because of the contributory negligence
of the plaintiffs. But this Court held, on appeal, that there was no contributory negligence, and
allowed the parents P1,000 in damages from J. V. House who at the time of the tragic occurrence
was the holder of the franchise for the electric plant. This Court said in part:
Although the trial judge made the findings of fact hereinbefore outlined, he nevertheless was led
to order the dismissal of the action because of the contributory negligence of the plaintiffs. It is
from this point that a majority of the court depart from the stand taken by the trial judge. The
mother and her child had a perfect right to be on the principal street of Tacloban, Leyte, on the
evening when the religious procession was held. There was nothing abnormal in allowing the child
to run along a few paces in advance of the mother. No one could foresee the coincidence of an
automobile appearing and of a frightened child running and falling into a ditch filled with hot
water. The doctrine announced in the much debated case of Rakes vs. Atlantic Gulf and Pacific
Co. ([1907]), 7 Phil., 359), still rule. Article 1902 of the Civil Code must again be enforced. The
contributory negligence of the child and her mother, if any, does not operate as a bar to recovery,
but in its strictest sense could only result in reduction of the damages.
It is most significant that in the case just cited, this Court specifically applied article 1902 of the
Civil Code. It is thus that although J. V. House could have been criminally prosecuted for reckless
or simple negligence and not only punished but also made civilly liable because of his criminal
negligence, nevertheless this Court awarded damages in an independent civil action for fault or
negligence under article 1902 of the Civil Code.
In Bahia vs. Litonjua and Leynes (30 Phil., 624 [year 1915), the action was for damages for the
death of the plaintiff's daughter alleged to have been caused by the negligence of the servant in
driving an automobile over the child. It appeared that the cause of the mishap was a defect in the
steering gear. The defendant Leynes had rented the automobile from the International Garage of
Manila, to be used by him in carrying passengers during the fiesta of Tuy, Batangas. Leynes was
ordered by the lower court to pay P1,000 as damages to the plaintiff. On appeal this Court reversed
the judgment as to Leynes on the ground that he had shown that the exercised the care of a good
father of a family, thus overcoming the presumption of negligence under article 1903. This Court
said:
As to selection, the defendant has clearly shown that he exercised the care and diligence of a good
father of a family. He obtained the machine from a reputable garage and it was, so far as appeared,
in good condition. The workmen were likewise selected from a standard garage, were duly licensed
by the Government in their particular calling, and apparently thoroughly competent. The machine
had been used but a few hours when the accident occurred and it is clear from the evidence that
the defendant had no notice, either actual or constructive, of the defective condition of the steering
gear.
The legal aspect of the case was discussed by this Court thus:
Article 1903 of the Civil Code not only establishes liability in cases of negligence, but also
provides when the liability shall cease. It says:
"The liability referred to in this article shall cease when the persons mentioned therein prove that
they employed all the diligence of a good father of a family to avoid the damage."

21
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.
The doctrine of the case just cited was followed by this Court in Cerf vs. Medel (33 Phil., 37 [year
1915]). In the latter case, the complaint alleged that the defendant's servant had so negligently
driven an automobile, which was operated by defendant as a public vehicle, that said automobile
struck and damaged the plaintiff's motorcycle. This Court, applying article 1903 and following the
rule in Bahia vs. Litonjua and Leynes, said in part (p. 41) that:
The master is liable for the negligent acts of his servant where he is the owner or director of a
business or enterprise and the negligent acts are committed while the servant is engaged in his
master's employment as such owner.
Another case which followed the decision in Bahia vs. Litonjua and Leynes was Cuison vs. Norton
& Harrison Co., 55 Phil., 18 (year 1930). The latter case was an action for damages brought by
Cuison for the death of his seven-year-old son Moises. The little boy was on his way to school
with his sister Marciana. Some large pieces of lumber fell from a truck and pinned the boy
underneath, instantly killing him. Two youths, Telesforo Binoya and Francisco Bautista, who were
working for Ora, an employee of defendant Norton & Harrison Co., pleaded guilty to the crime of
homicide through reckless negligence and were sentenced accordingly. This Court, applying
articles 1902 and 1903, held:
The basis of civil law liability is not respondent superior but the relationship of pater familias.
This theory bases the liability of the master ultimately on his own negligence and not on that of
his servant. (Bahia vs. Litonjua and Leynes [1915], 30 Phil., 624; Cangco vs. Manila Railroad Co.
[1918], 38 Phil., 768.)
In Walter A. Smith & Co. vs. Cadwallader Gibson Lumber Co., 55 Phil., 517 (year 1930) the
plaintiff brought an action for damages for the demolition of its wharf, which had been struck by
the steamer Helen C belonging to the defendant. This Court held (p. 526):
The evidence shows that Captain Lasa at the time the plaintiff's wharf collapsed was a duly
licensed captain, authorized to navigate and direct a vessel of any tonnage, and that the appellee
contracted his services because of his reputation as a captain, according to F. C. Cadwallader. This
being so, we are of the opinion that the presumption of liability against the defendant has been
overcome by the exercise of the care and diligence of a good father of a family in selecting Captain
Lasa, in accordance with the doctrines laid down by this court in the cases cited above, and the
defendant is therefore absolved from all liability.
It is, therefore, seen that the defendant's theory about his secondary liability is negatived by the six
cases above set forth. He is, on the authority of these cases, primarily and directly responsible in
damages under article 1903, in relation to article 1902, of the Civil Code.

22
Let us now take up the Philippine decisions relied upon by the defendant. We study first, City of
Manila vs. Manila Electric Co., 52 Phil., 586 (year 1928). A collision between a truck of the City
of Manila and a street car of the Manila Electric Co. took place on June 8, 1925. The truck was
damaged in the amount of P1,788.27. Sixto Eustaquio, the motorman, was prosecuted for the crime
of damage to property and slight injuries through reckless imprudence. He was found guilty and
sentenced to pay a fine of P900, to indemnify the City of Manila for P1,788.27, with subsidiary
imprisonment in case of insolvency. Unable to collect the indemnity from Eustaquio, the City of
Manila filed an action against the Manila Electric Company to obtain payment, claiming that the
defendant was subsidiarily liable. The main defense was that the defendant had exercised the
diligence of a good father of a family to prevent the damage. The lower court rendered judgment
in favor of the plaintiff. This Court held, in part, that this case was governed by the Penal Code,
saying:
With this preliminary point out of the way, there is no escaping the conclusion that the provisions
of the Penal Code govern. The Penal Code in easily understandable language authorizes the
determination of subsidiary liability. The Civil Code negatives its application by providing that
civil obligations arising from crimes or misdemeanors shall be governed by the provisions of the
Penal Code. The conviction of the motorman was a misdemeanor falling under article 604 of the
Penal Code. The act of the motorman was not a wrongful or negligent act or omission not
punishable by law. Accordingly, the civil obligation connected up with the Penal Code and not
with article 1903 of the Civil Code. In other words, the Penal Code affirms its jurisdiction while
the Civil Code negatives its jurisdiction. This is a case of criminal negligence out of which civil
liability arises and not a case of civil negligence.
xxx xxx xxx
Our deduction, therefore, is that the case relates to the Penal Code and not to the Civil Code.
Indeed, as pointed out by the trial judge, any different ruling would permit the master to escape
scot-free by simply alleging and proving that the master had exercised all diligence in the selection
and training of its servants to prevent the damage. That would be a good defense to a strictly civil
action, but might or might not be to a civil action either as a part of or predicated on conviction for
a crime or misdemeanor. (By way of parenthesis, it may be said further that the statements here
made are offered to meet the argument advanced during our deliberations to the effect that article
0902 of the Civil Code should be disregarded and codal articles 1093 and 1903 applied.)
It is not clear how the above case could support the defendant's proposition, because the Court of
Appeals based its decision in the present case on the defendant's primary responsibility under
article 1903 of the Civil Code and not on his subsidiary liability arising from Fontanilla's criminal
negligence. In other words, the case of City of Manila vs. Manila Electric Co., supra, is predicated
on an entirely different theory, which is the subsidiary liability of an employer arising from a
criminal act of his employee, whereas the foundation of the decision of the Court of Appeals in
the present case is the employer's primary liability under article 1903 of the Civil Code. We have
already seen that this is a proper and independent remedy.
Arambulo vs. Manila Electric Co. (55 Phil., 75), is another case invoked by the defendant. A
motorman in the employ of the Manila Electric Company had been convicted o homicide by simple
negligence and sentenced, among other things, to pay the heirs of the deceased the sum of P1,000.
An action was then brought to enforce the subsidiary liability of the defendant as employer under

23
the Penal Code. The defendant attempted to show that it had exercised the diligence of a good
father of a family in selecting the motorman, and therefore claimed exemption from civil liability.
But this Court held:
In view of the foregoing considerations, we are of opinion and so hold, (1) that the exemption from
civil liability established in article 1903 of the Civil Code for all who have acted with the diligence
of a good father of a family, is not applicable to the subsidiary civil liability provided in article 20
of the Penal Code.
The above case is also extraneous to the theory of the defendant in the instant case, because the
action there had for its purpose the enforcement of the defendant's subsidiary liability under the
Penal Code, while in the case at bar, the plaintiff's cause of action is based on the defendant's
primary and direct responsibility under article 1903 of the Civil Code. In fact, the above case
destroys the defendant's contention because that decision illustrates the principle that the
employer's primary responsibility under article 1903 of the Civil Code is different in character
from his subsidiary liability under the Penal Code.
In trying to apply the two cases just referred to, counsel for the defendant has failed to recognize
the distinction between civil liability arising from a crime, which is governed by the Penal Code,
and the responsibility for cuasi-delito or culpa aquiliana under the Civil Code, and has likewise
failed to give the importance to the latter type of civil action.
The defendant-petitioner also cites Francisco vs. Onrubia (46 Phil., 327). That case need not be
set forth. Suffice it to say that the question involved was also civil liability arising from a crime.
Hence, it is as inapplicable as the two cases above discussed.
The foregoing authorities clearly demonstrate the separate individuality of cuasi-delitos or culpa
aquiliana under the Civil Code. Specifically they show that there is a distinction between civil
liability arising from criminal negligence (governed by the Penal Code) and responsibility for fault
or negligence under articles 1902 to 1910 of the Civil Code, and that the same negligent act may
produce either a civil liability arising from a crime under the Penal Code, or a separate
responsibility for fault or negligence under articles 1902 to 1910 of the Civil Code. Still more
concretely, the authorities above cited render it inescapable to conclude that the employer — in
this case the defendant-petitioner — is primarily and directly liable under article 1903 of the Civil
Code.
The legal provisions, authors, and cases already invoked should ordinarily be sufficient to dispose
of this case. But inasmuch as we are announcing doctrines that have been little understood in the
past, it might not be inappropriate to indicate their foundations.
Firstly, the Revised Penal Code in article 365 punishes not only reckless but also simple
negligence. If we were to hold that articles 1902 to 1910 of the Civil Code refer only to fault or
negligence not punished by law, according to the literal import of article 1093 of the Civil Code,
the legal institution of culpa aquiliana would have very little scope and application in actual life.
Death or injury to persons and damage to property through any degree of negligence — even the
slightest — would have to be indemnified only through the principle of civil liability arising from
a crime. In such a state of affairs, what sphere would remain for cuasi-delito or culpa aquiliana?
We are loath to impute to the lawmaker any intention to bring about a situation so absurd and
anomalous. Nor are we, in the interpretation of the laws, disposed to uphold the letter that killeth
rather than the spirit that giveth life. We will not use the literal meaning of the law to smother and

24
render almost lifeless a principle of such ancient origin and such full-grown development as culpa
aquiliana or cuasi-delito, which is conserved and made enduring in articles 1902 to 1910 of the
Spanish Civil Code.
Secondly, to find the accused guilty in a criminal case, proof of guilt beyond reasonable doubt is
required, while in a civil case, preponderance of evidence is sufficient to make the defendant pay
in damages. There are numerous cases of criminal negligence which can not be shown beyond
reasonable doubt, but can be proved by a preponderance of evidence. In such cases, the defendant
can and should be made responsible in a civil action under articles 1902 to 1910 of the Civil Code.
Otherwise, there would be many instances of unvindicated civil wrongs. Ubi jus ibi remedium.
Thirdly, to hold that there is only one way to make defendant's liability effective, and that is, to
sue the driver and exhaust his (the latter's) property first, would be tantamount to compelling the
plaintiff to follow a devious and cumbersome method of obtaining relief. True, there is such a
remedy under our laws, but there is also a more expeditious way, which is based on the primary
and direct responsibility of the defendant under article 1903 of the Civil Code. Our view of the
law is more likely to facilitate remedy for civil wrongs, because the procedure indicated by the
defendant is wasteful and productive of delay, it being a matter of common knowledge that
professional drivers of taxis and similar public conveyance usually do not have sufficient means
with which to pay damages. Why, then, should the plaintiff be required in all cases to go through
this roundabout, unnecessary, and probably useless procedure? In construing the laws, courts have
endeavored to shorten and facilitate the pathways of right and justice.
At this juncture, it should be said that the primary and direct responsibility of employers and their
presumed negligence are principles calculated to protect society. Workmen and employees should
be carefully chosen and supervised in order to avoid injury to the public. It is the masters or
employers who principally reap the profits resulting from the services of these servants and
employees. It is but right that they should guarantee the latter's careful conduct for the personnel
and patrimonial safety of others. As Theilhard has said, "they should reproach themselves, at least,
some for their weakness, others for their poor selection and all for their negligence." And according
to Manresa, "It is much more equitable and just that such responsibility should fall upon the
principal or director who could have chosen a careful and prudent employee, and not upon the
injured person who could not exercise such selection and who used such employee because of his
confidence in the principal or director." (Vol. 12, p. 622, 2nd Ed.) Many jurists also base this
primary responsibility of the employer on the principle of representation of the principal by the
agent. Thus, Oyuelos says in the work already cited (Vol. 7, p. 747) that before third persons the
employer and employee "vienen a ser como una sola personalidad, por refundicion de la del
dependiente en la de quien le emplea y utiliza." ("become as one personality by the merging of the
person of the employee in that of him who employs and utilizes him.") All these observations
acquire a peculiar force and significance when it comes to motor accidents, and there is need of
stressing and accentuating the responsibility of owners of motor vehicles.
Fourthly, because of the broad sweep of the provisions of both the Penal Code and the Civil Code
on this subject, which has given rise to the overlapping or concurrence of spheres already
discussed, and for lack of understanding of the character and efficacy of the action for culpa
aquiliana, there has grown up a common practice to seek damages only by virtue of the civil
responsibility arising from a crime, forgetting that there is another remedy, which is by invoking

25
articles 1902-1910 of the Civil Code. Although this habitual method is allowed by our laws, it has
nevertheless rendered practically useless and nugatory the more expeditious and effective remedy
based on culpa aquiliana or culpa extra-contractual. In the present case, we are asked to help
perpetuate this usual course. But we believe it is high time we pointed out to the harm done by
such practice and to restore the principle of responsibility for fault or negligence under articles
1902 et seq. of the Civil Code to its full rigor. It is high time we caused the stream of quasi-delict
or culpa aquiliana to flow on its own natural channel, so that its waters may no longer be diverted
into that of a crime under the Penal Code. This will, it is believed, make for the better safeguarding
of private rights because it re-establishes an ancient and additional remedy, and for the further
reason that an independent civil action, not depending on the issues, limitations and results of a
criminal prosecution, and entirely directed by the party wronged or his counsel, is more likely to
secure adequate and efficacious redress.
In view of the foregoing, the judgment of the Court of Appeals should be and is hereby affirmed,
with costs against the defendant-petitioner.

26
 JOSEPH VS BAUTISTA
G.R. No. L-41423 February 23, 1989
LUIS JOSEPH, petitioner
vs.
HON. CRISPIN V. BAUTISTA, PATROCINIO PEREZ, ANTONIO SIOSON, JACINTO
PAGARIGAN, ALBERTO CARDENO and LAZARO VILLANUEVA, respondents.
Jose M. Castillo for petitioner.
Arturo Z. Sioson for private respondent, Patrocinio Perez.
Cipriano B. Farrales for private respondents except P. Perez.

REGALAD0, J.:
Petitioner prays in this appeal by certiorari for the annulment and setting aside of the order, dated
July 8, 1975, dismissing petitioner's complaint, as well as the order, dated August 22, 1975,
denying his motion for reconsideration of said dismissal, both issued by respondent Judge Crispin
V. Bautista of the former Court of First Instance of Bulacan, Branch III.
Petitioner herein is the plaintiff in Civil Case No. 50-V-73 entitled "Luis Joseph vs. Patrocinio
Perez, Domingo Villa y de Jesus, Rosario Vargas, Antonio Sioson, Lazaro Villanueva and Jacinto
Pagarigan", filed before the Court of First Instance of Bulacan, Branch III, and presided over by
respondent Judge Crispin V. Bautista; while private respondents Patrocinio Perez, Antonio Sioson,
Jacinto Pagarigan and Lazaro Villanueva are four of the defendants in said case. Defendant
Domingo Villa y de Jesus did not answer either the original or the amended complaint, while
defendant Rosario Vargas could not be served with summons; and respondent Alberto Cardeno is
included herein as he was impleaded by defendant Patrocinio Perez, one of respondents herein, in
her cross-claim.
The generative facts of this case, as culled from the written submission of the parties, are as
follows:
Respondent Patrocinio Perez is the owner of a cargo truck with Plate No. 25-2 YT Phil. '73 for
conveying cargoes and passengers for a consideration from Dagupan City to Manila. On January
12, 1973, said cargo truck driven by defendant Domingo Villa was on its way to Valenzuela,
Bulacan from Pangasinan. Petitioner, with a cargo of livestock, boarded the cargo truck at Dagupan
City after paying the sum of P 9.00 as one way fare to Valenzuela, Bulacan. While said cargo truck
was negotiating the National Highway proceeding towards Manila, defendant Domingo Villa tried
to overtake a tricycle likewise proceeding in the same direction. At about the same time, a pick-up
truck with Plate No. 45-95 B, supposedly owned by respondents Antonio Sioson and Jacinto
Pagarigan, then driven by respondent Lazaro Villanueva, tried to overtake the cargo truck which
was then in the process of overtaking the tricycle, thereby forcing the cargo truck to veer towards
the shoulder of the road and to ram a mango tree. As a result, petitioner sustained a bone fracture
in one of his legs. 1
The following proceedings thereafter took place: 2
Petitioner filed a complaint for damages against respondent Patrocinio Perez, as owner of the cargo
truck, based on a breach of contract of carriage and against respondents Antonio Sioson and Lazaro
Villanueva, as owner and driver, respectively, of the pick-up truck, based on quasi-delict.

27
Respondent Sioson filed his answer alleging that he is not and never was an owner of the pick-up
truck and neither would he acquire ownership thereof in the future.
On September 24, 1973, petitioner, with prior leave of court, filed his amended complaint
impleading respondents Jacinto Pagarigan and a certain Rosario Vargas as additional alternative
defendants. Petitioner apparently could not ascertain who the real owner of said cargo truck was,
whether respondents Patrocinio Perez or Rosario Vargas, and who was the real owner of said pick-
up truck, whether respondents Antonio Sioson or Jacinto Pagarigan.
Respondent Perez filed her amended answer with crossclaim against her co-defendants for
indemnity and subrogation in the event she is ordered to pay petitioner's claim, and therein
impleaded cross-defendant Alberto Cardeno as additional alternative defendant.
On September 27, 1974, respondents Lazaro Villanueva, Alberto Cardeno, Antonio Sioson and
Jacinto Pagarigan, thru their insurer, Insurance Corporation of the Philippines, paid petitioner's
claim for injuries sustained in the amount of P 1,300.00. By reason thereof, petitioner executed a
release of claim releasing from liability the following parties, viz: Insurance Corporation of the
Philippines, Alberto Cardeno, Lazaro Villanueva, Antonio Sioson and Jacinto Pagarigan.
On December 2, 1974, respondents Lazaro Villanueva, Alberto Cardeno and their insurer, the
Insurance Corporation of the Philippines, paid respondent Patrocinio Perez' claim for damages to
her cargo truck in the amount of P 7,420.61.
Consequently, respondents Sioson, Pagarigan, Cardeno and Villanueva filed a "Motion to
Exonerate and Exclude Defs/ Cross defs. Alberto Cardeno, Lazaro Villanueva, Antonio Sioson
and Jacinto Pagarigan on the Instant Case", alleging that respondents Cardeno and Villanueva
already paid P 7,420.61 by way of damages to respondent Perez, and alleging further that
respondents Cardeno, Villanueva, Sioson and Pagarigan paid P 1,300.00 to petitioner by way of
amicable settlement.
Thereafter, respondent Perez filed her "Opposition to Cross-defs.' motion dated Dec. 2, 1974 and
Counter Motion" to dismiss. The so-called counter motion to dismiss was premised on the fact that
the release of claim executed by petitioner in favor of the other respondents inured to the benefit
of respondent Perez, considering that all the respondents are solidarity liable to herein petitioner.
On July 8, 1975, respondent judge issued the questioned order dismissing the case, and a motion
for the reconsideration thereof was denied. Hence, this appeal, petitioner contending that
respondent judge erred in declaring that the release of claim executed by petitioner in favor of
respondents Sioson, Villanueva and Pagarigan inured to the benefit of respondent Perez; ergo, it
likewise erred in dismissing the case.
We find the present recourse devoid of merit.
The argument that there are two causes of action embodied in petitioner's complaint, hence the
judgment on the compromise agreement under the cause of action based on quasi-delict is not a
bar to the cause of action for breach of contract of carriage, is untenable.
A cause of action is understood to be the delict or wrongful act or omission committed by the
defendant in violation of the primary rights of the plaintiff. 3 It is true that a single act or omission
can be violative of various rights at the same time, as when the act constitutes juridically a violation
of several separate and distinct legal obligations. However where there is only one delict or wrong,
there is but a single cause of action regardless of the number of rights that may have been violated
belonging to one person. 4

28
The singleness of a cause of action lies in the singleness of the- delict or wrong violating the rights
of one person. Nevertheless, if only one injury resulted from several wrongful acts, only one cause
of action arises. 5 In the case at bar, there is no question that the petitioner sustained a single injury
on his person. That vested in him a single cause of action, albeit with the correlative rights of
action against the different respondents through the appropriate remedies allowed by law.
The trial court was, therefore, correct in holding that there was only one cause of action involved
although the bases of recovery invoked by petitioner against the defendants therein were not
necessarily Identical since the respondents were not identically circumstanced. However, a
recovery by the petitioner under one remedy necessarily bars recovery under the other. This, in
essence, is the rationale for the proscription in our law against double recovery for the same act or
omission which, obviously, stems from the fundamental rule against unjust enrichment.
There is no question that the respondents herein are solidarily liable to petitioner. On the evidence
presented in the court below, the trial court found them to be so liable. It is undisputed that
petitioner, in his amended complaint, prayed that the trial court hold respondents jointly and
severally liable. Furthermore, the allegations in the amended complaint clearly impleaded
respondents as solidary debtors. We cannot accept the vacuous contention of petitioner that said
allegations are intended to apply only in the event that execution be issued in his favor. There is
nothing in law or jurisprudence which would countenance such a procedure.
The respondents having been found to be solidarity liable to petitioner, the full payment made by
some of the solidary debtors and their subsequent release from any and all liability to petitioner
inevitably resulted in the extinguishment and release from liability of the other solidary debtors,
including herein respondent Patrocinio Perez.
The claim that there was an agreement entered into between the parties during the pre-trial
conference that, after such payment made by the other respondents, the case shall proceed as
against respondent Perez is both incredible and unsubstantiated. There is nothing in the records to
show, either by way of a pre-trial order, minutes or a transcript of the notes of the alleged pre-trial
hearing, that there was indeed such as agreement.
WHEREFORE, the challenged orders of the respondent judge are hereby AFFIRMED.
SO ORDERED.

29
 GUTIERREZ VS GUTIERREZ
G.R. No. 34840 September 23, 1931
NARCISO GUTIERREZ, plaintiff-appellee,
vs.
BONIFACIO GUTIERREZ, MARIA V. DE GUTIERREZ, MANUEL GUTIERREZ,
ABELARDO VELASCO, and SATURNINO CORTEZ, defendants-appellants.
L.D. Lockwood for appellants Velasco and Cortez.
San Agustin and Roxas for other appellants.
Ramon Diokno for appellee.
MALCOLM, J.:
This is an action brought by the plaintiff in the Court of First Instance of Manila against the five
defendants, to recover damages in the amount of P10,000, for physical injuries suffered as a result
of an automobile accident. On judgment being rendered as prayed for by the plaintiff, both sets of
defendants appealed.
On February 2, 1930, a passenger truck and an automobile of private ownership collided while
attempting to pass each other on the Talon bridge on the Manila South Road in the municipality
of Las Piñas, Province of Rizal. The truck was driven by the chauffeur Abelardo Velasco, and was
owned by Saturnino Cortez. The automobile was being operated by Bonifacio Gutierrez, a lad 18
years of age, and was owned by Bonifacio's father and mother, Mr. and Mrs. Manuel Gutierrez.
At the time of the collision, the father was not in the car, but the mother, together will several other
members of the Gutierrez family, seven in all, were accommodated therein. A passenger in the
autobus, by the name of Narciso Gutierrez, was en route from San Pablo, Laguna, to Manila. The
collision between the bus and the automobile resulted in Narciso Gutierrez suffering a fracture
right leg which required medical attendance for a considerable period of time, and which even at
the date of the trial appears not to have healed properly.
It is conceded that the collision was caused by negligence pure and simple. The difference between
the parties is that, while the plaintiff blames both sets of defendants, the owner of the passenger
truck blames the automobile, and the owner of the automobile, in turn, blames the truck. We have
given close attention to these highly debatable points, and having done so, a majority of the court
are of the opinion that the findings of the trial judge on all controversial questions of fact find
sufficient support in the record, and so should be maintained. With this general statement set down,
we turn to consider the respective legal obligations of the defendants.
In amplification of so much of the above pronouncement as concerns the Gutierrez family, it may
be explained that the youth Bonifacio was in incompetent chauffeur, that he was driving at an
excessive rate of speed, and that, on approaching the bridge and the truck, he lost his head and so
contributed by his negligence to the accident. The guaranty given by the father at the time the son
was granted a license to operate motor vehicles made the father responsible for the acts of his son.
Based on these facts, pursuant to the provisions of article 1903 of the Civil Code, the father alone
and not the minor or the mother, would be liable for the damages caused by the minor.
We are dealing with the civil law liability of parties for obligations which arise from fault or
negligence. At the same time, we believe that, as has been done in other cases, we can take
cognizance of the common law rule on the same subject. In the United States, it is uniformly held
that the head of a house, the owner of an automobile, who maintains it for the general use of his

30
family is liable for its negligent operation by one of his children, whom he designates or permits
to run it, where the car is occupied and being used at the time of the injury for the pleasure of other
members of the owner's family than the child driving it. The theory of the law is that the running
of the machine by a child to carry other members of the family is within the scope of the owner's
business, so that he is liable for the negligence of the child because of the relationship of master
and servant. (Huddy On Automobiles, 6th ed., sec. 660; Missell vs. Hayes [1914], 91 Atl., 322.)
The liability of Saturnino Cortez, the owner of the truck, and of his chauffeur Abelardo Velasco
rests on a different basis, namely, that of contract which, we think, has been sufficiently
demonstrated by the allegations of the complaint, not controverted, and the evidence. The reason
for this conclusion reaches to the findings of the trial court concerning the position of the truck on
the bridge, the speed in operating the machine, and the lack of care employed by the chauffeur.
While these facts are not as clearly evidenced as are those which convict the other defendant, we
nevertheless hesitate to disregard the points emphasized by the trial judge. In its broader aspects,
the case is one of two drivers approaching a narrow bridge from opposite directions, with neither
being willing to slow up and give the right of way to the other, with the inevitable result of a
collision and an accident.
The defendants Velasco and Cortez further contend that there existed contributory negligence on
the part of the plaintiff, consisting principally of his keeping his foot outside the truck, which
occasioned his injury. In this connection, it is sufficient to state that, aside from the fact that the
defense of contributory negligence was not pleaded, the evidence bearing out this theory of the
case is contradictory in the extreme and leads us far afield into speculative matters.
The last subject for consideration relates to the amount of the award. The appellee suggests that
the amount could justly be raised to P16,517, but naturally is not serious in asking for this sum,
since no appeal was taken by him from the judgment. The other parties unite in challenging the
award of P10,000, as excessive. All facts considered, including actual expenditures and damages
for the injury to the leg of the plaintiff, which may cause him permanent lameness, in connection
with other adjudications of this court, lead us to conclude that a total sum for the plaintiff of P5,000
would be fair and reasonable. The difficulty in approximating the damages by monetary
compensation is well elucidated by the divergence of opinion among the members of the court,
three of whom have inclined to the view that P3,000 would be amply sufficient, while a fourth
member has argued that P7,500 would be none too much.
In consonance with the foregoing rulings, the judgment appealed from will be modified, and the
plaintiff will have judgment in his favor against the defendants Manuel Gutierrez, Abelardo
Velasco, and Saturnino Cortez, jointly and severally, for the sum of P5,000, and the costs of both
instances.

31
 AIR FRANCE VS CARRASCOSO
G.R. No. L-21438 September 28, 1966
AIR FRANCE, petitioner,
vs.
RAFAEL CARRASCOSO and the HONORABLE COURT OF APPEALS, respondents.
Lichauco, Picazo and Agcaoili for petitioner.
Bengzon Villegas and Zarraga for respondent R. Carrascoso.
SANCHEZ, J.:
The Court of First Instance of Manila 1 sentenced petitioner to pay respondent Rafael Carrascoso
P25,000.00 by way of moral damages; P10,000.00 as exemplary damages; P393.20 representing
the difference in fare between first class and tourist class for the portion of the trip Bangkok-Rome,
these various amounts with interest at the legal rate, from the date of the filing of the complaint
until paid; plus P3,000.00 for attorneys' fees; and the costs of suit.
On appeal,2 the Court of Appeals slightly reduced the amount of refund on Carrascoso's plane
ticket from P393.20 to P383.10, and voted to affirm the appealed decision "in all other respects",
with costs against petitioner.
The case is now before us for review on certiorari.
The facts declared by the Court of Appeals as " fully supported by the evidence of record", are:
Plaintiff, a civil engineer, was a member of a group of 48 Filipino pilgrims that left Manila for
Lourdes on March 30, 1958.
On March 28, 1958, the defendant, Air France, through its authorized agent, Philippine Air Lines,
Inc., issued to plaintiff a "first class" round trip airplane ticket from Manila to Rome. From Manila
to Bangkok, plaintiff travelled in "first class", but at Bangkok, the Manager of the defendant airline
forced plaintiff to vacate the "first class" seat that he was occupying because, in the words of the
witness Ernesto G. Cuento, there was a "white man", who, the Manager alleged, had a "better
right" to the seat. When asked to vacate his "first class" seat, the plaintiff, as was to be expected,
refused, and told defendant's Manager that his seat would be taken over his dead body; a
commotion ensued, and, according to said Ernesto G. Cuento, "many of the Filipino passengers
got nervous in the tourist class; when they found out that Mr. Carrascoso was having a hot
discussion with the white man [manager], they came all across to Mr. Carrascoso and pacified Mr.
Carrascoso to give his seat to the white man" (Transcript, p. 12, Hearing of May 26, 1959); and
plaintiff reluctantly gave his "first class" seat in the plane. 3
1. The trust of the relief petitioner now seeks is that we review "all the findings" 4 of respondent
Court of Appeals. Petitioner charges that respondent court failed to make complete findings of fact
on all the issues properly laid before it. We are asked to consider facts favorable to petitioner, and
then, to overturn the appellate court's decision.
Coming into focus is the constitutional mandate that "No decision shall be rendered by any court
of record without expressing therein clearly and distinctly the facts and the law on which it is
based". 5 This is echoed in the statutory demand that a judgment determining the merits of the case
shall state "clearly and distinctly the facts and the law on which it is based"; 6 and that "Every
decision of the Court of Appeals shall contain complete findings of fact on all issues properly
raised before it". 7

32
A decision with absolutely nothing to support it is a nullity. It is open to direct attack. 8 The law,
however, solely insists that a decision state the "essential ultimate facts" upon which the court's
conclusion is drawn. 9 A court of justice is not hidebound to write in its decision every bit and
piece of evidence 10 presented by one party and the other upon the issues raised. Neither is it to be
burdened with the obligation "to specify in the sentence the facts" which a party "considered as
proved". 11 This is but a part of the mental process from which the Court draws the essential
ultimate facts. A decision is not to be so clogged with details such that prolixity, if not confusion,
may result. So long as the decision of the Court of Appeals contains the necessary facts to warrant
its conclusions, it is no error for said court to withhold therefrom "any specific finding of facts
with respect to the evidence for the defense". Because as this Court well observed, "There is no
law that so requires". 12 Indeed, "the mere failure to specify (in the decision) the contentions of the
appellant and the reasons for refusing to believe them is not sufficient to hold the same contrary to
the requirements of the provisions of law and the Constitution". It is in this setting that
in Manigque, it was held that the mere fact that the findings "were based entirely on the evidence
for the prosecution without taking into consideration or even mentioning the appellant's side in the
controversy as shown by his own testimony", would not vitiate the judgment. 13 If the court did
not recite in the decision the testimony of each witness for, or each item of evidence presented by,
the defeated party, it does not mean that the court has overlooked such testimony or such item of
evidence. 14 At any rate, the legal presumptions are that official duty has been regularly performed,
and that all the matters within an issue in a case were laid before the court and passed upon by it. 15
Findings of fact, which the Court of Appeals is required to make, maybe defined as "the written
statement of the ultimate facts as found by the court ... and essential to support the decision and
judgment rendered thereon". 16 They consist of the court's "conclusions" with respect to the
determinative facts in issue". 17 A question of law, upon the other hand, has been declared as "one
which does not call for an examination of the probative value of the evidence presented by the
parties." 18
2. By statute, "only questions of law may be raised" in an appeal by certiorari from a judgment of
the Court of Appeals. 19 That judgment is conclusive as to the facts. It is not appropriately the
business of this Court to alter the facts or to review the questions of fact. 20
With these guideposts, we now face the problem of whether the findings of fact of the Court of
Appeals support its judgment.
3. Was Carrascoso entitled to the first class seat he claims?
It is conceded in all quarters that on March 28, 1958 he paid to and received from petitioner a first
class ticket. But petitioner asserts that said ticket did not represent the true and complete intent and
agreement of the parties; that said respondent knew that he did not have confirmed reservations
for first class on any specific flight, although he had tourist class protection; that, accordingly, the
issuance of a first class ticket was no guarantee that he would have a first class ride, but that such
would depend upon the availability of first class seats.
These are matters which petitioner has thoroughly presented and discussed in its brief before the
Court of Appeals under its third assignment of error, which reads: "The trial court erred in finding
that plaintiff had confirmed reservations for, and a right to, first class seats on the "definite"
segments of his journey, particularly that from Saigon to Beirut". 21
And, the Court of Appeals disposed of this contention thus:

33
Defendant seems to capitalize on the argument that the issuance of a first-class ticket was no
guarantee that the passenger to whom the same had been issued, would be accommodated in the
first-class compartment, for as in the case of plaintiff he had yet to make arrangements upon arrival
at every station for the necessary first-class reservation. We are not impressed by such a reasoning.
We cannot understand how a reputable firm like defendant airplane company could have the
indiscretion to give out tickets it never meant to honor at all. It received the corresponding amount
in payment of first-class tickets and yet it allowed the passenger to be at the mercy of its employees.
It is more in keeping with the ordinary course of business that the company should know whether
or riot the tickets it issues are to be honored or not.22
Not that the Court of Appeals is alone. The trial court similarly disposed of petitioner's contention,
thus:
On the fact that plaintiff paid for, and was issued a "First class" ticket, there can be no question.
Apart from his testimony, see plaintiff's Exhibits "A", "A-1", "B", "B-1," "B-2", "C" and "C-1",
and defendant's own witness, Rafael Altonaga, confirmed plaintiff's testimony and testified as
follows:
Q. In these tickets there are marks "O.K." From what you know, what does this OK mean?
A. That the space is confirmed.
Q. Confirmed for first class?
A. Yes, "first class". (Transcript, p. 169)
xxx xxx xxx
Defendant tried to prove by the testimony of its witnesses Luis Zaldariaga and Rafael Altonaga
that although plaintiff paid for, and was issued a "first class" airplane ticket, the ticket was subject
to confirmation in Hongkong. The court cannot give credit to the testimony of said witnesses. Oral
evidence cannot prevail over written evidence, and plaintiff's Exhibits "A", "A-l", "B", "B-l", "C"
and "C-1" belie the testimony of said witnesses, and clearly show that the plaintiff was issued, and
paid for, a first class ticket without any reservation whatever.
Furthermore, as hereinabove shown, defendant's own witness Rafael Altonaga testified that the
reservation for a "first class" accommodation for the plaintiff was confirmed. The court cannot
believe that after such confirmation defendant had a verbal understanding with plaintiff that the
"first class" ticket issued to him by defendant would be subject to confirmation in Hongkong. 23
We have heretofore adverted to the fact that except for a slight difference of a few pesos in the
amount refunded on Carrascoso's ticket, the decision of the Court of First Instance was affirmed
by the Court of Appeals in all other respects. We hold the view that such a judgment of affirmance
has merged the judgment of the lower court. 24 Implicit in that affirmance is a determination by
the Court of Appeals that the proceeding in the Court of First Instance was free from prejudicial
error and "all questions raised by the assignments of error and all questions that might have been
raised are to be regarded as finally adjudicated against the appellant". So also, the judgment
affirmed "must be regarded as free from all error". 25 We reached this policy construction because
nothing in the decision of the Court of Appeals on this point would suggest that its findings of fact
are in any way at war with those of the trial court. Nor was said affirmance by the Court of Appeals
upon a ground or grounds different from those which were made the basis of the conclusions of
the trial court. 26

34
If, as petitioner underscores, a first-class-ticket holder is not entitled to a first class seat,
notwithstanding the fact that seat availability in specific flights is therein confirmed, then an air
passenger is placed in the hollow of the hands of an airline. What security then can a passenger
have? It will always be an easy matter for an airline aided by its employees, to strike out the very
stipulations in the ticket, and say that there was a verbal agreement to the contrary. What if the
passenger had a schedule to fulfill? We have long learned that, as a rule, a written document speaks
a uniform language; that spoken word could be notoriously unreliable. If only to achieve stability
in the relations between passenger and air carrier, adherence to the ticket so issued is desirable.
Such is the case here. The lower courts refused to believe the oral evidence intended to defeat the
covenants in the ticket.
The foregoing are the considerations which point to the conclusion that there are facts upon which
the Court of Appeals predicated the finding that respondent Carrascoso had a first class ticket and
was entitled to a first class seat at Bangkok, which is a stopover in the Saigon to Beirut leg of the
flight. 27 We perceive no "welter of distortions by the Court of Appeals of petitioner's statement of
its position", as charged by petitioner. 28 Nor do we subscribe to petitioner's accusation that
respondent Carrascoso "surreptitiously took a first class seat to provoke an issue". 29 And this
because, as petitioner states, Carrascoso went to see the Manager at his office in Bangkok "to
confirm my seat and because from Saigon I was told again to see the Manager". 30 Why, then, was
he allowed to take a first class seat in the plane at Bangkok, if he had no seat? Or, if another had a
better right to the seat?
4. Petitioner assails respondent court's award of moral damages. Petitioner's trenchant claim is that
Carrascoso's action is planted upon breach of contract; that to authorize an award for moral
damages there must be an averment of fraud or bad faith; 31 and that the decision of the Court of
Appeals fails to make a finding of bad faith. The pivotal allegations in the complaint bearing on
this issue are:
3. That ... plaintiff entered into a contract of air carriage with the Philippine Air Lines for a valuable
consideration, the latter acting as general agents for and in behalf of the defendant, under which
said contract, plaintiff was entitled to, as defendant agreed to furnish plaintiff, First Class passage
on defendant's plane during the entire duration of plaintiff's tour of Europe with Hongkong as
starting point up to and until plaintiff's return trip to Manila, ... .
4. That, during the first two legs of the trip from Hongkong to Saigon and from Saigon to Bangkok,
defendant furnished to the plaintiff First Class accommodation but only after protestations,
arguments and/or insistence were made by the plaintiff with defendant's employees.
5. That finally, defendant failed to provide First Class passage, but instead furnished plaintiff
only Tourist Class accommodations from Bangkok to Teheran and/or Casablanca, ... the plaintiff
has been compelled by defendant's employees to leave the First Class accommodation berths at
Bangkok after he was already seated.
6. That consequently, the plaintiff, desiring no repetition of the inconvenience and embarrassments
brought by defendant's breach of contract was forced to take a Pan American World Airways plane
on his return trip from Madrid to Manila.32
xxx xxx xxx
2. That likewise, as a result of defendant's failure to furnish First Class accommodations aforesaid,
plaintiff suffered inconveniences, embarrassments, and humiliations, thereby causing plaintiff

35
mental anguish, serious anxiety, wounded feelings, social humiliation, and the like injury, resulting
in moral damages in the amount of P30,000.00. 33
xxx xxx xxx
The foregoing, in our opinion, substantially aver: First, That there was a contract to furnish
plaintiff a first class passage covering, amongst others, the Bangkok-Teheran leg; Second, That
said contract was breached when petitioner failed to furnish first class transportation at Bangkok;
and Third, that there was bad faith when petitioner's employee compelled Carrascoso to leave his
first class accommodation berth "after he was already, seated" and to take a seat in the tourist
class, by reason of which he suffered inconvenience, embarrassments and humiliations, thereby
causing him mental anguish, serious anxiety, wounded feelings and social humiliation, resulting
in moral damages. It is true that there is no specific mention of the term bad faith in the complaint.
But, the inference of bad faith is there, it may be drawn from the facts and circumstances set forth
therein. 34 The contract was averred to establish the relation between the parties. But the stress of
the action is put on wrongful expulsion.
Quite apart from the foregoing is that (a) right the start of the trial, respondent's counsel placed
petitioner on guard on what Carrascoso intended to prove: That while sitting in the plane in
Bangkok, Carrascoso was ousted by petitioner's manager who gave his seat to a white man; 35 and
(b) evidence of bad faith in the fulfillment of the contract was presented without objection on the
part of the petitioner. It is, therefore, unnecessary to inquire as to whether or not there is sufficient
averment in the complaint to justify an award for moral damages. Deficiency in the complaint, if
any, was cured by the evidence. An amendment thereof to conform to the evidence is not even
required. 36 On the question of bad faith, the Court of Appeals declared:
That the plaintiff was forced out of his seat in the first class compartment of the plane belonging
to the defendant Air France while at Bangkok, and was transferred to the tourist class not only
without his consent but against his will, has been sufficiently established by plaintiff in his
testimony before the court, corroborated by the corresponding entry made by the purser of the
plane in his notebook which notation reads as follows:
"First-class passenger was forced to go to the tourist class against his will, and that the captain
refused to intervene",
and by the testimony of an eye-witness, Ernesto G. Cuento, who was a co-passenger. The captain
of the plane who was asked by the manager of defendant company at Bangkok to intervene even
refused to do so. It is noteworthy that no one on behalf of defendant ever contradicted or denied
this evidence for the plaintiff. It could have been easy for defendant to present its manager at
Bangkok to testify at the trial of the case, or yet to secure his disposition; but defendant did
neither. 37
The Court of appeals further stated —
Neither is there evidence as to whether or not a prior reservation was made by the white man.
Hence, if the employees of the defendant at Bangkok sold a first-class ticket to him when all the
seats had already been taken, surely the plaintiff should not have been picked out as the one to
suffer the consequences and to be subjected to the humiliation and indignity of being ejected from
his seat in the presence of others. Instead of explaining to the white man the improvidence
committed by defendant's employees, the manager adopted the more drastic step of ousting the
plaintiff who was then safely ensconsced in his rightful seat. We are strengthened in our belief that

36
this probably was what happened there, by the testimony of defendant's witness Rafael Altonaga
who, when asked to explain the meaning of the letters "O.K." appearing on the tickets of plaintiff,
said "that the space is confirmed for first class. Likewise, Zenaida Faustino, another witness for
defendant, who was the chief of the Reservation Office of defendant, testified as follows:
"Q How does the person in the ticket-issuing office know what reservation the passenger has
arranged with you?
A They call us up by phone and ask for the confirmation." (t.s.n., p. 247, June 19, 1959)
In this connection, we quote with approval what the trial Judge has said on this point:
Why did the, using the words of witness Ernesto G. Cuento, "white man" have a "better right" to
the seat occupied by Mr. Carrascoso? The record is silent. The defendant airline did not prove "any
better", nay, any right on the part of the "white man" to the "First class" seat that the plaintiff was
occupying and for which he paid and was issued a corresponding "first class" ticket.
If there was a justified reason for the action of the defendant's Manager in Bangkok, the defendant
could have easily proven it by having taken the testimony of the said Manager by deposition, but
defendant did not do so; the presumption is that evidence willfully suppressed would be adverse if
produced [Sec. 69, par (e), Rules of Court]; and, under the circumstances, the Court is constrained
to find, as it does find, that the Manager of the defendant airline in Bangkok not merely asked but
threatened the plaintiff to throw him out of the plane if he did not give up his "first class" seat
because the said Manager wanted to accommodate, using the words of the witness Ernesto G.
Cuento, the "white man".38
It is really correct to say that the Court of Appeals in the quoted portion first transcribed did not
use the term "bad faith". But can it be doubted that the recital of facts therein points to bad faith?
The manager not only prevented Carrascoso from enjoying his right to a first class seat; worse, he
imposed his arbitrary will; he forcibly ejected him from his seat, made him suffer the humiliation
of having to go to the tourist class compartment - just to give way to another passenger whose right
thereto has not been established. Certainly, this is bad faith. Unless, of course, bad faith has
assumed a meaning different from what is understood in law. For, "bad faith" contemplates a "state
of mind affirmatively operating with furtive design or with some motive of self-interest or will or
for ulterior purpose." 39
And if the foregoing were not yet sufficient, there is the express finding of bad faith in the
judgment of the Court of First Instance, thus:
The evidence shows that the defendant violated its contract of transportation with plaintiff in bad
faith, with the aggravating circumstances that defendant's Manager in Bangkok went to the extent
of threatening the plaintiff in the presence of many passengers to have him thrown out of the
airplane to give the "first class" seat that he was occupying to, again using the words of the witness
Ernesto G. Cuento, a "white man" whom he (defendant's Manager) wished to accommodate, and
the defendant has not proven that this "white man" had any "better right" to occupy the "first class"
seat that the plaintiff was occupying, duly paid for, and for which the corresponding "first class"
ticket was issued by the defendant to him.40
5. The responsibility of an employer for the tortious act of its employees need not be essayed. It is
well settled in law. 41 For the willful malevolent act of petitioner's manager, petitioner, his
employer, must answer. Article 21 of the Civil Code says:

37
ART. 21. Any person who willfully 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.
In parallel circumstances, we applied the foregoing legal precept; and, we held that upon the
provisions of Article 2219 (10), Civil Code, moral damages are recoverable. 42
6. A contract to transport passengers is quite different in kind and degree from any other
contractual relation. 43 And this, because of the relation which an air-carrier sustains with the
public. Its business is mainly with the travelling public. It invites people to avail of the comforts
and advantages it offers. The contract of air carriage, therefore, generates a relation attended with
a public duty. Neglect or malfeasance of the carrier's employees, naturally, could give ground for
an action for damages.
Passengers do not contract merely for transportation. They have a right to be treated by the carrier's
employees with kindness, respect, courtesy and due consideration. They are entitled to be protected
against personal misconduct, injurious language, indignities and abuses from such employees. So
it is, that any rule or discourteous conduct on the part of employees towards a passenger gives the
latter an action for damages against the carrier. 44
Thus, "Where a steamship company 45 had accepted a passenger's check, it was a breach of contract
and a tort, giving a right of action for its agent in the presence of third persons to falsely notify her
that the check was worthless and demand payment under threat of ejection, though the language
used was not insulting and she was not ejected." 46 And this, because, although the relation of
passenger and carrier is "contractual both in origin and nature" nevertheless "the act that breaks
the contract may be also a tort". 47 And in another case, "Where a passenger on a railroad train,
when the conductor came to collect his fare tendered him the cash fare to a point where the train
was scheduled not to stop, and told him that as soon as the train reached such point he would pay
the cash fare from that point to destination, there was nothing in the conduct of the passenger which
justified the conductor in using insulting language to him, as by calling him a lunatic," 48 and the
Supreme Court of South Carolina there held the carrier liable for the mental suffering of said
passenger.1awphîl.nèt
Petitioner's contract with Carrascoso is one attended with public duty. The stress of Carrascoso's
action as we have said, is placed upon his wrongful expulsion. This is a violation of public duty
by the petitioner air carrier — a case of quasi-delict. Damages are proper.
7. Petitioner draws our attention to respondent Carrascoso's testimony, thus —
Q You mentioned about an attendant. Who is that attendant and purser?
A When we left already — that was already in the trip — I could not help it. So one of the flight
attendants approached me and requested from me my ticket and I said, What for? and she said,
"We will note that you transferred to the tourist class". I said, "Nothing of that kind. That is
tantamount to accepting my transfer." And I also said, "You are not going to note anything there
because I am protesting to this transfer".
Q Was she able to note it?
A No, because I did not give my ticket.
Q About that purser?
A Well, the seats there are so close that you feel uncomfortable and you don't have enough leg
room, I stood up and I went to the pantry that was next to me and the purser was there. He told me,
"I have recorded the incident in my notebook." He read it and translated it to me — because it was

38
recorded in French — "First class passenger was forced to go to the tourist class against his will,
and that the captain refused to intervene."
Mr. VALTE —
I move to strike out the last part of the testimony of the witness because the best evidence would
be the notes. Your Honor.
COURT —
I will allow that as part of his testimony. 49
Petitioner charges that the finding of the Court of Appeals that the purser made an entry in his
notebook reading "First class passenger was forced to go to the tourist class against his will, and
that the captain refused to intervene" is predicated upon evidence [Carrascoso's testimony above]
which is incompetent. We do not think so. The subject of inquiry is not the entry, but the ouster
incident. Testimony on the entry does not come within the proscription of the best evidence rule.
Such testimony is admissible. 49a
Besides, from a reading of the transcript just quoted, when the dialogue happened, the impact of
the startling occurrence was still fresh and continued to be felt. The excitement had not as yet died
down. Statements then, in this environment, are admissible as part of the res gestae. 50 For, they
grow "out of the nervous excitement and mental and physical condition of the declarant". 51 The
utterance of the purser regarding his entry in the notebook was spontaneous, and related to the
circumstances of the ouster incident. Its trustworthiness has been guaranteed. 52 It thus escapes the
operation of the hearsay rule. It forms part of the res gestae.
At all events, the entry was made outside the Philippines. And, by an employee of petitioner. It
would have been an easy matter for petitioner to have contradicted Carrascoso's testimony. If it
were really true that no such entry was made, the deposition of the purser could have cleared up
the matter.
We, therefore, hold that the transcribed testimony of Carrascoso is admissible in evidence.
8. Exemplary damages are well awarded. The Civil Code gives the court ample power to grant
exemplary damages — in contracts and quasi- contracts. The only condition is that defendant
should have "acted in a wanton, fraudulent, reckless, oppressive, or malevolent manner." 53 The
manner of ejectment of respondent Carrascoso from his first class seat fits into this legal precept.
And this, in addition to moral damages.54
9. The right to attorney's fees is fully established. The grant of exemplary damages justifies a
similar judgment for attorneys' fees. The least that can be said is that the courts below felt that it
is but just and equitable that attorneys' fees be given. 55 We do not intend to break faith with the
tradition that discretion well exercised — as it was here — should not be disturbed.
10. Questioned as excessive are the amounts decreed by both the trial court and the Court of
Appeals, thus: P25,000.00 as moral damages; P10,000.00, by way of exemplary damages, and
P3,000.00 as attorneys' fees. The task of fixing these amounts is primarily with the trial
court. 56 The Court of Appeals did not interfere with the same. The dictates of good sense suggest
that we give our imprimatur thereto. Because, the facts and circumstances point to the
reasonableness thereof.57
On balance, we say that the judgment of the Court of Appeals does not suffer from reversible error.
We accordingly vote to affirm the same. Costs against petitioner. So ordered.

39
 REGINO VS PANGASINAN COLLEGES OF SCIENCE AND
TECHNOLOGY
G.R. No. 156109 November 18, 2004
KHRISTINE REA M. REGINO, Assisted and Represented by ARMANDO
REGINO, petitioner,
vs.
PANGASINAN COLLEGES OF SCIENCE AND TECHNOLOGY, RACHELLE A.
GAMUROT and ELISSA BALADAD, respondents.

DECISION

PANGANIBAN, J.:
Upon enrolment, students and their school enter upon a reciprocal contract. The students agree to
abide by the standards of academic performance and codes of conduct, issued usually in the form
of manuals that are distributed to the enrollees at the start of the school term. Further, the school
informs them of the itemized fees they are expected to pay. Consequently, it cannot, after the
enrolment of a student, vary the terms of the contract. It cannot require fees other than those it
specified upon enrolment.
The Case
Before the Court is a Petition for Review under Rule 45,1 seeking to nullify the July 12, 20022 and
the November 22, 20023 Orders of the Regional Trial Court (RTC) of Urdaneta City, Pangasinan
(Branch 48) in Civil Case No. U-7541. The decretal portion of the first assailed Order reads:
"WHEREFORE, the Court GRANTS the instant motion to dismiss for lack of cause of action."4
The second challenged Order denied petitioner's Motion for Reconsideration.
The Facts
Petitioner Khristine Rea M. Regino was a first year computer science student at Respondent
Pangasinan Colleges of Science and Technology (PCST). Reared in a poor family, Regino went
to college mainly through the financial support of her relatives. During the second semester of
school year 2001-2002, she enrolled in logic and statistics subjects under Respondents Rachelle
A. Gamurot and Elissa Baladad, respectively, as teachers.
In February 2002, PCST held a fund raising campaign dubbed the "Rave Party and Dance
Revolution," the proceeds of which were to go to the construction of the school's tennis and
volleyball courts. Each student was required to pay for two tickets at the price of P100 each. The
project was allegedly implemented by recompensing students who purchased tickets with
additional points in their test scores; those who refused to pay were denied the opportunity to take
the final examinations.
Financially strapped and prohibited by her religion from attending dance parties and celebrations,
Regino refused to pay for the tickets. On March 14 and March 15, 2002, the scheduled dates of
the final examinations in logic and statistics, her teachers -- Respondents Rachelle A. Gamurot
and Elissa Baladad -- allegedly disallowed her from taking the tests. According to petitioner,

40
Gamurot made her sit out her logic class while her classmates were taking their examinations. The
next day, Baladad, after announcing to the entire class that she was not permitting petitioner and
another student to take their statistics examinations for failing to pay for their tickets, allegedly
ejected them from the classroom. Petitioner's pleas ostensibly went unheeded by Gamurot and
Baladad, who unrelentingly defended their positions as compliance with PCST's policy.
On April 25, 2002, petitioner filed, as a pauper litigant, a Complaint 5 for damages against PCST,
Gamurot and Baladad. In her Complaint, she prayed for P500,000 as nominal damages; P500,000
as moral damages; at least P1,000,000 as exemplary damages; P250,000 as actual damages; plus
the costs of litigation and attorney's fees.
On May 30, 2002, respondents filed a Motion to Dismiss6 on the ground of petitioner's failure to
exhaust administrative remedies. According to respondents, the question raised involved the
determination of the wisdom of an administrative policy of the PCST; hence, the case should have
been initiated before the proper administrative body, the Commission of Higher Education
(CHED).
In her Comment to respondents' Motion, petitioner argued that prior exhaustion of administrative
remedies was unnecessary, because her action was not administrative in nature, but one purely for
damages arising from respondents' breach of the laws on human relations. As such, jurisdiction
lay with the courts.
On July 12, 2002, the RTC dismissed the Complaint for lack of cause of action.
Ruling of the Regional Trial Court
In granting respondents' Motion to Dismiss, the trial court noted that the instant controversy
involved a higher institution of learning, two of its faculty members and one of its students. It
added that Section 54 of the Education Act of 1982 vested in the Commission on Higher Education
(CHED) the supervision and regulation of tertiary schools. Thus, it ruled that the CHED, not the
courts, had jurisdiction over the controversy.7
In its dispositive portion, the assailed Order dismissed the Complaint for "lack of cause of action"
without, however, explaining this ground.
Aggrieved, petitioner filed the present Petition on pure questions of law.8
Issues
In her Memorandum, petitioner raises the following issues for our consideration:
"Whether or not the principle of exhaustion of administrative remedies applies in a civil action
exclusively for damages based on violation of the human relation provisions of the Civil Code,
filed by a student against her former school.
"Whether or not there is a need for prior declaration of invalidity of a certain school administrative
policy by the Commission on Higher Education (CHED) before a former student can successfully
maintain an action exclusively for damages in regular courts.
"Whether or not the Commission on Higher Education (CHED) has exclusive original jurisdiction
over actions for damages based upon violation of the Civil Code provisions on human relations
filed by a student against the school."9
All of the foregoing point to one issue -- whether the doctrine of exhaustion of administrative
remedies is applicable. The Court, however, sees a second issue which, though not expressly raised
by petitioner, was impliedly contained in her Petition: whether the Complaint stated sufficient
cause(s) of action.

41
The Court's Ruling
The Petition is meritorious.
First Issue:
Exhaustion of Administrative Remedies
Respondents anchored their Motion to Dismiss on petitioner's alleged failure to exhaust
administrative remedies before resorting to the RTC. According to them, the determination of the
controversy hinge on the validity, the wisdom and the propriety of PCST's academic policy. Thus,
the Complaint should have been lodged in the CHED, the administrative body tasked under
Republic Act No. 7722 to implement the state policy to "protect, foster and promote the right of
all citizens to affordable quality education at all levels and to take appropriate steps to ensure that
education is accessible to all."10
Petitioner counters that the doctrine finds no relevance to the present case since she is praying for
damages, a remedy beyond the domain of the CHED and well within the jurisdiction of the
courts.11
Petitioner is correct. First, the doctrine of exhaustion of administrative remedies has no bearing on
the present case. In Factoran Jr. v. CA,12 the Court had occasion to elucidate on the rationale behind
this doctrine:
"The doctrine of exhaustion of administrative remedies is basic. Courts, for reasons of law, comity,
and convenience, should not entertain suits unless the available administrative remedies have first
been resorted to and the proper authorities have been given the appropriate opportunity to act and
correct their alleged errors, if any, committed in the administrative forum. x x x. 13 "
Petitioner is not asking for the reversal of the policies of PCST. Neither is she demanding it to
allow her to take her final examinations; she was already enrolled in another educational
institution. A reversal of the acts complained of would not adequately redress her grievances; under
the circumstances, the consequences of respondents' acts could no longer be undone or rectified.
Second, exhaustion of administrative remedies is applicable when there is competence on the part
of the administrative body to act upon the matter complained of. 14 Administrative agencies are not
courts; they are neither part of the judicial system, nor are they deemed judicial
tribunals.15 Specifically, the CHED does not have the power to award damages. 16 Hence, petitioner
could not have commenced her case before the Commission.
Third, the exhaustion doctrine admits of exceptions, one of which arises when the issue is purely
legal and well within the jurisdiction of the trial court. 17 Petitioner's action for damages inevitably
calls for the application and the interpretation of the Civil Code, a function that falls within the
jurisdiction of the courts.18
Second Issue:
Cause of Action
Sufficient Causes of Action Stated in the Allegations in the Complaint
As a rule, every complaint must sufficiently allege a cause of action; failure to do so warrants its
dismissal.19 A complaint is said to assert a sufficient cause of action if, admitting what appears
solely on its face to be correct, the plaintiff would be entitled to the relief prayed for. Assuming
the facts that are alleged to be true, the court should be able to render a valid judgment in
accordance with the prayer in the complaint.20

42
A motion to dismiss based on lack of cause of action hypothetically admits the truth of the alleged
facts. In their Motion to Dismiss, respondents did not dispute any of petitioner's allegations, and
they admitted that "x x x the crux of plaintiff's cause of action is the determination of whether or
not the assessment of P100 per ticket is excessive or oppressive."21 They thereby premised their
prayer for dismissal on the Complaint's alleged failure to state a cause of action. Thus, a
reexamination of the Complaint is in order.
The Complaint contains the following factual allegations:
"10. In the second week of February 2002, defendant Rachelle A. Gamurot, in connivance with
PCST, forced plaintiff and her classmates to buy or take two tickets each, x x x;
"11. Plaintiff and many of her classmates objected to the forced distribution and selling of tickets
to them but the said defendant warned them that if they refused [to] take or pay the price of the
two tickets they would not be allowed at all to take the final examinations;
"12. As if to add insult to injury, defendant Rachelle A. Gamurot bribed students with additional
fifty points or so in their test score in her subject just to unjustly influence and compel them into
taking the tickets;
"13. Despite the students' refusal, they were forced to take the tickets because [of] defendant
Rachelle A. Gamurot's coercion and act of intimidation, but still many of them including the
plaintiff did not attend the dance party imposed upon them by defendants PCST and Rachelle A.
Gamurot;
"14. Plaintiff was not able to pay the price of her own two tickets because aside form the fact that
she could not afford to pay them it is also against her religious practice as a member of a certain
religious congregation to be attending dance parties and celebrations;
"15. On March 14, 2002, before defendant Rachelle A. Gamurot gave her class its final
examination in the subject 'Logic' she warned that students who had not paid the tickets would not
be allowed to participate in the examination, for which threat and intimidation many students were
eventually forced to make payments:
"16. Because plaintiff could not afford to pay, defendant Rachelle A. Gamurot inhumanly made
plaintiff sit out the class but the defendant did not allow her to take her final examination in 'Logic;'
"17. On March 15, 2002 just before the giving of the final examination in the subject 'Statistics,'
defendant Elissa Baladad, in connivance with defendants Rachelle A. Gamurot and PCST,
announced in the classroom that she was not allowing plaintiff and another student to take the
examination for their failure and refusal to pay the price of the tickets, and thenceforth she ejected
plaintiff and the other student from the classroom;
"18. Plaintiff pleaded for a chance to take the examination but all defendants could say was that
the prohibition to give the examinations to non-paying students was an administrative decision;
"19. Plaintiff has already paid her tuition fees and other obligations in the school;
"20. That the above-cited incident was not a first since PCST also did another forced distribution
of tickets to its students in the first semester of school year 2001-2002; x x x " 22
The foregoing allegations show two causes of action; first, breach of contract; and second, liability
for tort.
Reciprocity of the
School-Student Contract

43
In Alcuaz v. PSBA,23 the Court characterized the relationship between the school and the student
as a contract, in which "a student, once admitted by the school is considered enrolled for one
semester."24 Two years later, in Non v. Dames II,25 the Court modified the "termination of contract
theory" in Alcuaz by holding that the contractual relationship between the school and the student
is not only semestral in duration, but for the entire period the latter are expected to complete
it."26 Except for the variance in the period during which the contractual relationship is considered
to subsist, both Alcuaz and Non were unanimous in characterizing the school-student relationship
as contractual in nature.
The school-student relationship is also reciprocal. Thus, it has consequences appurtenant to and
inherent in all contracts of such kind -- it gives rise to bilateral or reciprocal rights and obligations.
The school undertakes to provide students with education sufficient to enable them to pursue
higher education or a profession. On the other hand, the students agree to abide by the academic
requirements of the school and to observe its rules and regulations.27
The terms of the school-student contract are defined at the moment of its inception -- upon
enrolment of the student. Standards of academic performance and the code of behavior and
discipline are usually set forth in manuals distributed to new students at the start of every school
year. Further, schools inform prospective enrollees the amount of fees and the terms of payment.
In practice, students are normally required to make a down payment upon enrollment, with the
balance to be paid before every preliminary, midterm and final examination. Their failure to pay
their financial obligation is regarded as a valid ground for the school to deny them the opportunity
to take these examinations.
The foregoing practice does not merely ensure compliance with financial obligations; it also
underlines the importance of major examinations. Failure to take a major examination is usually
fatal to the students' promotion to the next grade or to graduation. Examination results form a
significant basis for their final grades. These tests are usually a primary and an indispensable
requisite to their elevation to the next educational level and, ultimately, to their completion of a
course.
Education is not a measurable commodity. It is not possible to determine who is "better educated"
than another. Nevertheless, a student's grades are an accepted approximation of what would
otherwise be an intangible product of countless hours of study. The importance of grades cannot
be discounted in a setting where education is generally the gate pass to employment opportunities
and better life; such grades are often the means by which a prospective employer measures whether
a job applicant has acquired the necessary tools or skills for a particular profession or trade.
Thus, students expect that upon their payment of tuition fees, satisfaction of the set academic
standards, completion of academic requirements and observance of school rules and regulations,
the school would reward them by recognizing their "completion" of the course enrolled in.
The obligation on the part of the school has been established in Magtibay v. Garcia, 28 Licup v.
University of San Carlos29 and Ateneo de Manila University v. Garcia, 30 in which the Court held
that, barring any violation of the rules on the part of the students, an institution of higher learning
has a contractual obligation to afford its students a fair opportunity to complete the course they
seek to pursue.
We recognize the need of a school to fund its facilities and to meet astronomical operating costs;
this is a reality in running it. Crystal v. Cebu International School 31 upheld the imposition by

44
respondent school of a "land purchase deposit" in the amount of P50,000 per student to be used
for the "purchase of a piece of land and for the construction of new buildings and other facilities x
x x which the school would transfer [to] and occupy after the expiration of its lease contract over
its present site."
The amount was refundable after the student graduated or left the school. After noting that the
imposition of the fee was made only after prior consultation and approval by the parents of the
students, the Court held that the school committed no actionable wrong in refusing to admit the
children of the petitioners therein for their failure to pay the "land purchase deposit" and the 2.5
percent monthly surcharge thereon.
In the present case, PCST imposed the assailed revenue-raising measure belatedly, in the middle
of the semester. It exacted the dance party fee as a condition for the students' taking the final
examinations, and ultimately for its recognition of their ability to finish a course. The fee, however,
was not part of the school-student contract entered into at the start of the school year. Hence, it
could not be unilaterally imposed to the prejudice of the enrollees.
Such contract is by no means an ordinary one. In Non, we stressed that the school-student contract
"is imbued with public interest, considering the high priority given by the Constitution to education
and the grant to the State of supervisory and regulatory powers over all educational
institutions."32 Sections 5 (1) and (3) of Article XIV of the 1987 Constitution provide:
"The State shall protect and promote the right of all citizens to quality education at all levels and
shall take appropriate steps to make such declaration accessible to all.
"Every student has a right to select a profession or course of study, subject to fair, reasonable and
equitable admission and academic requirements."
The same state policy resonates in Section 9(2) of BP 232, otherwise known as the Education Act
of 1982:
"Section 9. Rights of Students in School. – In addition to other rights, and subject to the limitations
prescribed by law and regulations, students and pupils in all schools shall enjoy the following
rights:
xxx xxx xxx
(2) The right to freely choose their field of study subject to existing curricula and to continue their
course therein up to graduation, except in cases of academic deficiency, or violation of disciplinary
regulations."
Liability for Tort
In her Complaint, petitioner also charged that private respondents "inhumanly punish students x x
x by reason only of their poverty, religious practice or lowly station in life, which inculcated upon
[petitioner] the feelings of guilt, disgrace and unworthiness;"33 as a result of such punishment, she
was allegedly unable to finish any of her subjects for the second semester of that school year and
had to lag behind in her studies by a full year. The acts of respondents supposedly caused her
extreme humiliation, mental agony and "demoralization of unimaginable proportions" in violation
of Articles 19, 21 and 26 of the Civil Code. These provisions of the law state thus:
"Article 19. Every person must, in the exercise of his rights and in the performance of his duties,
act with justice, give everyone his due, and observe honesty and good faith."
"Article 21. 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."

45
"Article 26. Every person shall respect the dignity, personality, privacy and peace of mind of his
neighbors and other persons. The following and similar acts, though they may not constitute a
criminal offense, shall produce a cause of action for damages, prevention and other relief:
(1) Prying into the privacy of another's residence;
(2) Meddling with or disturbing the private life or family relations of another;
(3) Intriguing to cause another to be alienated from his friends;
(4) Vexing or humiliating another on account of his beliefs, lowly station in life, place of birth,
physical defect, or other personal condition."
Generally, liability for tort arises only between parties not otherwise bound by a contract. An
academic institution, however, may be held liable for tort even if it has an existing contract with
its students, since the act that violated the contract may also be a tort. We ruled thus in PSBA vs.
CA,34 from which we quote:
"x x x A perusal of Article 2176 [of the Civil Code] shows that obligations arising from quasi-
delicts or tort, also known as extra-contractual obligations, arise only between parties not otherwise
bound by contract, whether express or implied. However, this impression has not prevented this
Court from determining the existence of a tort even when there obtains a contract. In Air France
v. Carrascoso (124 Phil. 722), the private respondent was awarded damages for his unwarranted
expulsion from a first-class seat aboard the petitioner airline. It is noted, however, that the Court
referred to the petitioner-airline's liability as one arising from tort, not one arising form a contract
of carriage. In effect, Air France is authority for the view that liability from tort may exist even if
there is a contract, for the act that breaks the contract may be also a tort. x x x This view was not
all that revolutionary, for even as early as 1918, this Court was already of a similar mind. In Cangco
v. Manila Railroad (38 Phil. 780), Mr. Justice Fisher elucidated thus: 'x x x. When such a
contractual relation exists the obligor may break the contract under such conditions that the same
act which constitutes a breach of the contract would have constituted the source of an extra-
contractual obligation had no contract existed between the parties.'
"Immediately what comes to mind is the chapter of the Civil Code on Human Relations,
particularly Article 21 x x x."35
Academic Freedom
In their Memorandum, respondents harp on their right to "academic freedom." We are not
impressed. According to present jurisprudence, academic freedom encompasses the independence
of an academic institution to determine for itself (1) who may teach, (2) what may be taught, (3)
how it shall teach, and (4) who may be admitted to study. 36 In Garcia v. the Faculty Admission
Committee, Loyola School of Theology,37 the Court upheld the respondent therein when it denied
a female student's admission to theological studies in a seminary for prospective priests. The Court
defined the freedom of an academic institution thus: "to decide for itself aims and objectives and
how best to attain them x x x free from outside coercion or interference save possibly when
overriding public welfare calls for some restraint."38
In Tangonan v. Paño,39 the Court upheld, in the name of academic freedom, the right of the school
to refuse readmission of a nursing student who had been enrolled on probation, and who had failed
her nursing subjects. These instances notwithstanding, the Court has emphasized that once a school
has, in the name of academic freedom, set its standards, these should be meticulously observed
and should not be used to discriminate against certain students. 40 After accepting them upon

46
enrollment, the school cannot renege on its contractual obligation on grounds other than those
made known to, and accepted by, students at the start of the school year.
In sum, the Court holds that the Complaint alleges sufficient causes of action against respondents,
and that it should not have been summarily dismissed. Needless to say, the Court is not holding
respondents liable for the acts complained of. That will have to be ruled upon in due course by the
court a quo.
WHEREFORE, the Petition is hereby GRANTED, and the assailed Orders REVERSED. The trial
court is DIRECTED to reinstate the Complaint and, with all deliberate speed, to continue the
proceedings in Civil Case No. U-7541. No costs.
SO ORDERED.

47
DAYWALT VS CORPORACION PP. AGUSTINOS RECOLETOS
G.R. No. L-13505 February 4, 1919
GEO. W. DAYWALT, plaintiff-appellant,
vs.
LA CORPORACION DE LOS PADRES AGUSTINOS RECOLETOS, ET AL., defendants-
appellees.
C. C. Cohn and Thos. D. Aitken for appellant.
Crossfield & O'Brien for appellee.
STREET, J.:
In the year 1902, Teodorica Endencia, an unmarried woman, resident in the Province of Mindoro,
executed a contract whereby she obligated herself to convey to Geo. W. Daywalt, a tract of land
situated in the barrio of Mangarin, municipality of Bulalacao, now San Jose, in said province. It
was agreed that a deed should be executed as soon as the title to the land should be perfected by
proceedings in the Court of Land Registration and a Torrens certificate should be produced
therefore in the name of Teodorica Endencia. A decree recognizing the right of Teodorica as owner
was entered in said court in August 1906, but the Torrens certificate was not issued until later. The
parties, however, met immediately upon the entering of this decree and made a new contract with
a view to carrying their original agreement into effect. This new contract was executed in the form
of a deed of conveyance and bears date of August 16, 1906. The stipulated price was fixed at
P4,000, and the area of the land enclosed in the boundaries defined in the contract was stated to be
452 hectares and a fraction.
The second contract was not immediately carried into effect for the reason that the Torrens
certificate was not yet obtainable and in fact said certificate was not issued until the period of
performance contemplated in the contract had expired. Accordingly, upon October 3, 1908, the
parties entered into still another agreement, superseding the old, by which Teodorica Endencia
agreed upon receiving the Torrens title to the land in question, to deliver the same to the Hongkong
and Shanghai Bank in Manila, to be forwarded to the Crocker National Bank in San Francisco,
where it was to be delivered to the plaintiff upon payment of a balance of P3,100.
The Torrens certificate was in time issued to Teodorica Endencia, but in the course of the
proceedings relative to the registration of the land, it was found by official survey that the area of
the tract inclosed in the boundaries stated in the contract was about 1.248 hectares of 452 hectares
as stated in the contract. In view of this development Teodorica Endencia became reluctant to
transfer the whole tract to the purchaser, asserting that she never intended to sell so large an amount
of land and that she had been misinformed as to its area.
This attitude of hers led to litigation in which Daywalt finally succeeded, upon appeal to the
Supreme Court, in obtaining a decree for specific performance; and Teodorica Endencia was
ordered to convey the entire tract of land to Daywalt pursuant to the contract of October 3, 1908,
which contract was declared to be in full force and effect. This decree appears to have become
finally effective in the early part of the year 1914.1
The defendant, La Corporacion de los Padres Recoletos, is a religious corporation, with its
domicile in the city of Manila. Said corporation was formerly the owner of a large tract of land,
known as the San Jose Estate, on the island of Mindoro, which was sold to the Government of the
Philippine Islands in the year 1909. The same corporation was at this time also the owner of another

48
estate on the same island immediately adjacent to the land which Teodorica Endencia had sold to
Geo. W. Daywalt; and for many years the Recoletos Fathers had maintained large herds of cattle
on the farms referred to. Their representative, charged with management of these farms, was father
Isidoro Sanz, himself a members of the order. Father Sanz had long been well acquainted with
Teodorica Endencia and exerted over her an influence and ascendency due to his religious
character as well as to the personal friendship which existed between them. Teodorica appears to
be a woman of little personal force, easily subject to influence, and upon all the important matters
of business was accustomed to seek, and was given, the advice of father Sanz and other members
of his order with whom she came in contact.
Father Sanz was fully aware of the existence of the contract of 1902 by which Teodorica Endencia
agreed to sell her land to the plaintiff as well as of the later important developments connected
with the history of that contract and the contract substituted successively for it; and in particular
Father Sanz, as well as other members of the defendant corporation, knew of the existence of the
contract of October 3, 1908, which, as we have already seen finally fixed the rights of the parties
to the property in question. When the Torrens certificate was finally issued in 1909 in favor of
Teodorica Endencia, she delivered it for safekeeping to the defendant corporation, and it was then
taken to Manila where it remained in the custody and under the control of P. Juan Labarga the
procurador and chief official of the defendant corporation, until the deliver thereof to the plaintiff
was made compulsory by reason of the decree of the Supreme Court in 1914.
When the defendant corporation sold the San Jose Estate, it was necessary to bring the cattle off
of that property; and, in the first half of 1909, some 2,368 head were removed to the estate of the
corporation immediately adjacent to the property which the plaintiff had purchased from Teodorica
Endencia. As Teodorica still retained possession of said property Father Sanz entered into an
arrangement with her whereby large numbers of cattle belonging to the defendant corporation were
pastured upon said land during a period extending from June 1, 1909, to May 1, 1914.
Under the first cause stated in the complaint in the present action the plaintiff seeks to recover
from the defendant corporation the sum of P24,000, as damages for the use and occupation of the
land in question by reason of the pasturing of cattle thereon during the period stated. The trial court
came to the conclusion that the defendant corporation was liable for damages by reason of the use
and occupation of the premises in the manner stated; and fixed the amount to be recovered at
P2,497. The plaintiff appealed and has assigned error to this part of the judgment of the court
below, insisting that damages should have been awarded in a much larger sum and at least to the
full extent of P24,000, the amount claimed in the complaint.
As the defendant did not appeal, the property of allowing damages for the use and occupation of
the land to the extent o P2,497, the amount awarded, is not now in question an the only thing here
to be considered, in connection with this branch of the case, is whether the damages allowed under
this head should be increased. The trial court rightly ignored the fact that the defendant corporation
had paid Teodorica Endencia of ruse and occupation of the same land during the period in question
at the rate of P425 per annum, inasmuch as the final decree of this court in the action for specific
performance is conclusive against her right, and as the defendant corporation had notice of the
rights of the plaintiff under this contract of purchase, it can not be permitted that the corporation
should escape liability in this action by proving payment of rent to a person other than the true
owner.

49
With reference to the rate of which compensation should be estimated the trial court came to the
following conclusion:
As to the rate of the compensation, the plaintiff contends that the defendant corporation maintained
at leas one thousand head of cattle on the land and that the pasturage was of the value of forty
centavos per head monthly, or P4,800 annually, for the whole tract. The court can not accept this
view. It is rather improbable that 1,248 hectares of wild Mindoro land would furnish sufficient
pasturage for one thousand head of cattle during the entire year, and, considering the locality, the
rate of forty centavos per head monthly seems too high. The evidence shows that after having
recovered possession of the land the plaintiff rented it to the defendant corporation for fifty
centavos per hectares annually, the tenant to pay the taxes on the land, and this appears to be a
reasonable rent. There is no reason to suppose that the land was worth more for grazing purposes
during the period from 1909 to 1913, than it was at the later period. Upon this basis the plaintiff is
entitled to damages in the sum of p2,497, and is under no obligation to reimburse the defendants
for the land taxes paid by either of them during the period the land was occupied by the defendant
corporation. It may be mentioned in this connection that the Lontok tract adjoining the land in
question and containing over three thousand hectares appears to have been leased for only P1,000
a year, plus the taxes.
From this it will be seen that the trial court estimated the rental value of the land for grazing
purposes at 50 centavos per hectare per annum, and roughly adopted the period of four years as
the time for which compensation at that rate should be made. As the court had already found that
the defendant was liable for these damages from June, 1, 1909, to May 1, 1914, or a period of four
years and eleven months, there seems some ground for the contention made in the appellant's first
assignment of error that the court's computation was erroneous, even accepting the rule upon which
the damages were assessed, as it is manifest that at the rate of 50 centavos per hectare per annum,
the damages for four years and eleven months would be P3,090.
Notwithstanding this circumstance, we are of the opinion that the damages assessed are sufficient
to compensate the plaintiff for the use and occupation of the land during the whole time it was
used. There is evidence in the record strongly tending to show that the wrongful use of the land by
the defendant was not continuous throughout the year but was confined mostly to the reason when
the forage obtainable on the land of the defendant corporation was not sufficient to maintain its
cattle, for which reason it became necessary to allow them to go over to pasture on the land in
question; and it is not clear that the whole of the land was used for pasturage at any time.
Considerations of this character probably led the trial court to adopt four years as roughly being
the period during which compensation should be allowed. But whether this was advertently done
or not, we see no sufficient reason, in the uncertainty of the record with reference to the number
of the cattle grazed and the period when the land was used, for substituting our guess for the
estimate made by the trial court.
In the second cause of action stated in the complaint the plaintiff seeks to recover from the
defendant corporation the sum of P500,000, as damages, on the ground that said corporation, for
its own selfish purposes, unlawfully induced Teodorica Endencia to refrain from the performance
of her contract for the sale of the land in question and to withhold delivery to the plaintiff of the
Torrens title, and further, maliciously and without reasonable cause, maintained her in her defense
to the action of specific performance which was finally decided in favor of the plaintiff in this

50
court. The cause of action here stated is based on liability derived from the wrongful interference
of the defendant in the performance of the contract between the plaintiff and Teodorica Endencia;
and the large damages laid in the complaint were, according to the proof submitted by the plaintiff,
incurred as a result of a combination of circumstances of the following nature: In 1911, it appears,
the plaintiff, as the owner of the land which he had bought from Teodorica Endencia entered into
a contract (Exhibit C) with S. B. Wakefield, of San Francisco, for the sale and disposal of said
lands to a sugar growing and milling enterprise, the successful launching of which depended on
the ability of Daywalt to get possession of the land and the Torrens certificate of title. In order to
accomplish this end, the plaintiff returned to the Philippine Islands, communicated his arrangement
to the defendant,, and made repeated efforts to secure the registered title for delivery in compliance
with said agreement with Wakefield. Teodorica Endencia seems to have yielded her consent to the
consummation of her contract, but the Torrens title was then in the possession of Padre Juan
Labarga in Manila, who refused to deliver the document. Teodorica also was in the end contract
with the plaintiff, with the result that the plaintiff was kept out of possession until the Wakefield
project for the establishment of a large sugar growing and milling enterprise fell through. In the
light of what has happened in recent years in the sugar industry, we feel justified in saying that the
project above referred to, if carried into effect, must inevitably have proved a great success.
The determination of the issue presented in this second cause of action requires a consideration of
two points. The first is whether a person who is not a party to a contract for the sale of land makes
himself liable for damages to the vendee, beyond the value of the use and occupation, by colluding
with the vendor and maintaining him in the effort to resist an action for specific performance. The
second is whether the damages which the plaintiff seeks to recover under this head are too remote
and speculative to be the subject of recovery.
As preliminary to a consideration of the first of these questions, we deem it well it dispose of the
contention that the members of the defendants corporation, in advising and prompting Teodorica
Endencia not to comply with the contract of sale, were actuated by improper and malicious
motives. The trial court found that this contention was not sustained, observing that while it was
true that the circumstances pointed to an entire sympathy on the part of the defendant corporation
with the efforts of Teodorica Endencia to defeat the plaintiff's claim to the land, the fact that its
officials may have advised her not to carry the contract into effect would not constitute actionable
interference with such contract. It may be added that when one considers the hardship that the
ultimate performance of that contract entailed on the vendor, and the doubt in which the issue was
involved — to the extent that the decision of the Court of the First Instance was unfavorable to the
plaintiff and the Supreme Court itself was divided — the attitude of the defendant corporation, as
exhibited in the conduct of its procurador, Juan Labarga, and other members of the order of the
Recollect Fathers, is not difficult to understand. To our mind a fair conclusion on this feature of
the case is that father Juan Labarga and his associates believed in good faith that the contract cold
not be enforced and that Teodorica would be wronged if it should be carried into effect. Any advice
or assistance which they may have given was, therefore, prompted by no mean or improper motive.
It is not, in our opinion, to be denied that Teodorica would have surrendered the documents of title
and given possession of the land but for the influence and promptings of members of the defendants
corporation. But we do not credit the idea that they were in any degree influenced to the giving of

51
such advice by the desire to secure to themselves the paltry privilege of grazing their cattle upon
the land in question to the prejudice of the just rights of the plaintiff.
The attorney for the plaintiff maintains that, by interfering in the performance of the contract in
question and obstructing the plaintiff in his efforts to secure the certificate of tittle to the land, the
defendant corporation made itself a co-participant with Teodorica Endencia in the breach of said
contract; and inasmuch as father Juan Labarga, at the time of said unlawful intervention between
the contracting parties, was fully aware of the existence of the contract (Exhibit C) which the
plaintiff had made with S. B. Wakefield, of San Francisco, it is insisted that the defendant
corporation is liable for the loss consequent upon the failure of the project outlined in said contract.
In this connection reliance is placed by the plaintiff upon certain American and English decisions
in which it is held that a person who is a stranger to contract may, by an unjustifiable interference
in the performance thereof, render himself liable for the damages consequent upon non-
performance. It is said that the doctrine of these cases was recognized by this court in
Gilchrist vs. Cuddy (29 Phil. Rep., 542); and we have been earnestly pressed to extend the rule
there enunciated to the situation here presente.
Somewhat more than half a century ago the English Court of the Queen's Bench saw its way clear
to permit an action for damages to be maintained against a stranger to a contract wrongfully
interfering in its performance. The leading case on this subject is Lumley vs. Gye ([1853], 2 El. &
Bl., 216). It there appeared that the plaintiff, as manager of a theatre, had entered into a contract
with Miss Johanna Wagner, an opera singer,, whereby she bound herself for a period to sing in the
plaintiff's theatre and nowhere else. The defendant, knowing of the existence of this contract, and,
as the declaration alleged, "maliciously intending to injure the plaintiff," enticed and produced
Miss Wagner to leave the plaintiff's employment. It was held that the plaintiff was entitled to
recover damages. The right which was here recognized had its origin in a rule, long familiar to the
courts of the common law, to the effect that any person who entices a servant from his employment
is liable in damages to the master. The master's interest in the service rendered by his employee is
here considered as a distinct subject of juridical right. It being thus accepted that it is a legal wrong
to break up a relation of personal service, the question now arose whether it is illegal for one person
to interfere with any contract relation subsisting between others. Prior to the decision of
Lumley vs. Gye [supra] it had been supposed that the liability here under consideration was limited
to the cases of the enticement of menial servants, apprentices, and others to whom the English
Statutes of Laborers were applicable. But in the case cited the majority of the judges concurred in
the opinion that the principle extended to all cases of hiring. This doctrine was followed by the
Court of Appeal in Bowen vs. Hall ([1881], 6 Q. B., Div., 333); and in Temperton vs. Russell
([1893], Q. B., 715), it was held that the right of action for maliciously procuring a breach of
contract is not confined to contracts for personal services, but extends to contracts in general. In
that case the contract which the defendant had procured to be breached was a contract for the
supply of building material.
Malice in some form is generally supposed to be an essential ingredient in cases of interference
with contract relations. But upon the authorities it is enough if the wrong-doer, having knowledge
of the existence of the contract relations, in bad faith sets about to break it up. Whether his motive
is to benefit himself or gratify his spite by working mischief to the employer is immaterial. Malice
in the sense of ill-will or spite is not essential.

52
Upon the question as to what constitutes legal justification, a good illustration was put in the
leading case. If a party enters into contract to go for another upon a journey to a remote and
unhealthful climate, and a third person, with a bona fide purpose of benefiting the one who is under
contract to go, dissuades him from the step, no action will lie. But if the advice is not disinterested
and the persuasion is used for "the indirect purpose of benefiting the defendant at the expense of
the plaintiff," the intermedler is liable if his advice is taken and the contract broken.
The doctrine embodied in the cases just cited has sometimes been found useful, in the complicated
relations of modern industry, as a means of restraining the activities of labor unions and industrial
societies when improperly engaged in the promotion of strikes. An illustration of the application
of the doctrine in question in a case of this kind is found in South Wales Miners
Federation vs. Glamorgan Coal Co. ([1905]), A. C., 239). It there appeared that certain miners
employed in the plaintiff's collieries, acting under the order of the executive council of the
defendant federation, violated their contract with the plaintiff by abstaining from work on certain
days. The federation and council acted without any actual malice or ill-will towards the plaintiff,
and the only object of the order in question was that the price of coal might thereby be kept up, a
factor which affected the miner's wage scale. It was held that no sufficient justification was shown
and that the federation was liable.
In the United States, the rule established in England by Lumley vs. Gye [supra] and subsequent
cases is commonly accepted, though in a few of the States the broad idea that a stranger to a
contract can be held liable upon its is rejected, and in these jurisdictions the doctrine, if accepted
at all, is limited to the situation where the contract is strictly for personal service.
(Boyson vs. Thorn, 98 Cal., 578; Chambers & Marshall vs. Baldwin 91 Ky., 121;
Bourlier vs. Macauley, 91 Ky., 135; Glencoe Land & Gravel Co. vs. Hudson Bros. Com. Co., 138
Mo., 439.)
It should be observed in this connection that, according to the English and American authorities,
no question can be made as to the liability to one who interferes with a contract existing between
others by means which, under known legal cannons, can be denominated an unlawful means. Thus,
if performance is prevented by force, intimidation, coercion, or threats, or by false or defamatory
statements, or by nuisance or riot, the person using such unlawful means is, under all the
authorities, liable for the damage which ensues. And in jurisdictions where the doctrine of
Lumley vs. Gye [supra] is rejected, no liability can arise from a meddlesome and malicious
interference with a contract relation unless some such unlawful means as those just indicated are
used. (See cases last above cited.)
This brings us to the decision made by this court in Gilchrist vs. Cuddy (29 Phil. Rep., 542). It
there appeared that one Cuddy, the owner of a cinematographic film, let it under a rental contract
to the plaintiff Gilchrist for a specified period of time. In violation of the terms of this agreement,
Cuddy proceeded to turn over the film also under a rental contract, to the defendants Espejo and
Zaldarriaga. Gilchrist thereupon restored to the Court of First Instance and produced an injunction
restraining the defendants from exhibiting the film in question in their theater during the period
specified in the contract of Cuddy with Gilchrist. Upon appeal to this court it was in effect held
that the injunction was not improperly granted, although the defendants did not, at the time their
contract was made, know the identity of the plaintiff as the person holding the prior contract but
did know of the existence of a contract in favor of someone. It was also said arguendo, that the

53
defendants would have been liable in damages under article 1902 of the Civil Code, if the action
had been brought by the plaintiff to recover damages. The force of the opinion is, we think,
somewhat weakened by the criticism contain in the concurring opinion, where it is said that the
question of breach of contract by inducement was not really involved in the case. Taking the
decision upon the point which was rally decided, it is authority for the proposition that one who
buys something which he knows has been sold to some other person can be restrained from using
that thing to the prejudice of the person having the prior and better right.
Translated into terms applicable to the case at bar, the decision in Gilchrist vs. Cuddy (29 Phil.
Rep., 542), indicates that the defendant corporation, having notice of the sale of the land in question
to Daywalt, might have been enjoined by the latter from using the property for grazing its cattle
thereon. That the defendant corporation is also liable in this action for the damage resulting to the
plaintiff from the wrongful use and occupation of the property has also been already determined.
But it will be observed that in order to sustain this liability it is not necessary to resort to any subtle
exegesis relative to the liability of a stranger to a contract for unlawful interference in the
performance thereof. It is enough that defendant use the property with notice that the plaintiff had
a prior and better right.
Article 1902 of the Civil Code declares that any person who by an act or omission, characterized
by fault or negligence, causes damage to another shall be liable for the damage so done. Ignoring
so much of this article as relates to liability for negligence, we take the rule to be that a person is
liable for damage done to another by any culpable act; and by "culpable act" we mean any act
which is blameworthy when judged by accepted legal standards. The idea thus expressed is
undoubtedly broad enough to include any rational conception of liability for the tortious acts likely
to be developed in any society. Thus considered, it cannot be said that the doctrine of
Lumley vs. Gye [supra] and related cases is repugnant to the principles of the civil law.
Nevertheless, it must be admitted that the codes and jurisprudence of the civil law furnish a
somewhat uncongenial field in which to propagate the idea that a stranger to a contract may sued
for the breach thereof. Article 1257 of the Civil Code declares that contracts are binding only
between the parties and their privies. In conformity with this it has been held that a stranger to a
contract has no right of action for the nonfulfillment of the contract except in the case especially
contemplated in the second paragraph of the same article. (Uy Tam and Uy Yet vs. Leonard, 30
Phil. Rep., 471.) As observed by this court in Manila Railroad Co. vs. Compañia Transatlantica,
R. G. No. 11318 (38 Phil. Rep., 875), a contract, when effectually entered into between certain
parties, determines not only the character and extent of the liability of the contracting parties but
also the person or entity by whom the obligation is exigible. The same idea should apparently be
applicable with respect to the person against whom the obligation of the contract may be enforced;
for it is evident that there must be a certain mutuality in the obligation, and if the stranger to a
contract is not permitted to sue to enforce it, he cannot consistently be held liable upon it.
If the two antagonistic ideas which we have just brought into juxtaposition are capable of
reconciliation, the process must be accomplished by distinguishing clearly between the right of
action arising from the improper interference with the contract by a stranger thereto, considered as
an independent act generate of civil liability, and the right of action ex contractu against a party to
the contract resulting from the breach thereof. However, we do not propose here to pursue the
matter further, inasmuch as, for reasons presently to be stated, we are of the opinion that neither

54
the doctrine of Lumley vs. Gye [supra] nor the application made of it by this court in
Gilchrist vs. Cuddy (29 Phil. Rep., 542), affords any basis for the recovery of the damages which
the plaintiff is supposed to have suffered by reason of his inability to comply with the terms of the
Wakefield contract.
Whatever may be the character of the liability which a stranger to a contract may incur by advising
or assisting one of the parties to evade performance, there is one proposition upon which all must
agree. This is, that the stranger cannot become more extensively liable in damages for the
nonperformance of the contract than the party in whose behalf he intermeddles. To hold the
stranger liable for damages in excess of those that could be recovered against the immediate party
to the contract would lead to results at once grotesque and unjust. In the case at bar, as Teodorica
Endencia was the party directly bound by the contract, it is obvious that the liability of the
defendant corporation, even admitting that it has made itself coparticipant in the breach of the
contract, can in no even exceed hers. This leads us to consider at this point the extent of the liability
of Teodorica Endencia to the plaintiff by reason of her failure to surrender the certificate of title
and to place the plaintiff in possession.
It should in the first place be noted that the liability of Teodorica Endencia for damages resulting
from the breach of her contract with Daywalt was a proper subject for adjudication in the action
for specific performance which Daywalt instituted against her in 1909 and which was litigated by
him to a successful conclusion in this court, but without obtaining any special adjudication with
reference to damages. Indemnification for damages resulting from the breach of a contract is a
right inseparably annexed to every action for the fulfillment of the obligation (art. 1124, Civil
Code); and its is clear that if damages are not sought or recovered in the action to enforce
performance they cannot be recovered in an independent action. As to Teodorica Endencia,
therefore, it should be considered that the right of action to recover damages for the breach of the
contract in question was exhausted in the prior suit. However, her attorneys have not seen fit to
interpose the defense of res judicata in her behalf; and as the defendant corporation was not a party
to that action, and such defense could not in any event be of any avail to it, we proceed to consider
the question of the liability of Teodorica Endencia for damages without refernce to this point.
The most that can be said with refernce to the conduct of Teodorica Endencia is that she refused
to carry out a contract for the sale of certain land and resisted to the last an action for specific
performance in court. The result was that the plaintiff was prevented during a period of several
years from exerting that control over the property which he was entitled to exert and was
meanwhile unable to dispose of the property advantageously. Now, what is the measure of
damages for the wrongful detention of real property by the vender after the time has come for him
to place the purchaser in possession?
The damages ordinarily and normally recoverable against a vendor for failure to deliver land which
he has contracted to deliver is the value of the use and occupation of the land for the time during
which it is wrongfully withheld. And of course where the purchaser has not paid the purchaser
money, a deduction may be made in respect to the interest on the money which constitutes the
purchase price. Substantially the same rule holds with respect to the liability of a landlord who
fails to put his tenant in possession pursuant to contract of lease. The measure of damages is the
value of the leasehold interest, or use and occupation, less the stipulated rent, where this has not
been paid. The rule that the measure of damages for the wrongful detention of land is normally to

55
be found in the value of use and occupation is, we believe, one of the things that may be considered
certain in the law (39 cyc., 1630; 24 Cyc., 1052 Sedgewick on Damages, Ninth ed., sec. 185.) —
almost as wellsettled, indeed, as the rule that the measure of damages for the wrongful detention
of money is to be found in the interest.
We recognize the possibility that more extensive damages may be recovered where, at the time of
the creation of the contractual obligation, the vendor, or lessor, is aware of the use to which the
purchaser or lessee desires to put the property which is the subject of the contract, and the contract
is made with the eyes of the vendor or lessor open to the possibility of the damage which may
result to the other party from his own failure to give possession. The case before us is not this
character, inasmuch as at the time when the rights of the parties under the contract were
determined, nothing was known to any to them about the San Francisco capitalist who would be
willing to back the project portrayed in Exhibit C.
The extent of the liability for the breach of a contract must be determined in the light of the situation
in existence at the time the contract is made; and the damages ordinarily recoverable are in all
events limited to such as might be reasonable are in all events limited to such as might be
reasonably foreseen in the light of the facts then known to the contracting parties. Where the
purchaser desires to protect himself, in the contingency of the failure of the vendor promptly to
give possession, from the possibility of incurring other damages than such as the incident to the
normal value of the use and occupation, he should cause to be inserted in the contract a clause
providing for stipulated amount to the paid upon failure of the vendor to give possession; and not
case has been called to our attention where, in the absence of such a stipulation, damages have
been held to be recoverable by the purchaser in excess of the normal value of use and occupation.
On the contrary, the most fundamental conceptions of the law relative to the assessment of
damages are inconsistent with such idea.
The principles governing this branch of the law were profoundly considered in the case
Hadley vs. Baxendale (9 Exch., 341), decided in the English Court of Exchequer in 1854; and a
few words relative to the principles governing will here be found instructive. The decision in that
case is considered a leading authority in the jurisprudence of the common law. The plaintiffs in
that case were proprietors of a mill in Gloucester, which was propelled by steam, and which was
engaged in grinding and supplying meal and flour to customers. The shaft of the engine got broken,
and it became necessarily that the broken shaft be sent to an engineer or foundry man at Greenwich,
to serve as a model for casting or manufacturing another that would fit into the machinery. The
broken shaft could be delivered at Greenwich on the second day after its receipts by the carrier it.
It was delivered to the defendants, who were common carriers engaged in that business between
these points, and who had told plaintiffs it would be delivered at Greenwich on the second day
after its delivery to them, if delivered at a given hour. The carriers were informed that the mill was
stopped, but were not informed of the special purpose for which the broken shaft was desired to
forwarded, They were not told the mill would remain idle until the new shaft would be returned,
or that the new shaft could not be manufactured at Greenwich until the broken one arrived to serve
as a model. There was delay beyond the two days in delivering the broken shaft at Greenwich, and
a corresponding delay in starting the mill. No explanation of the delay was offered by the carriers.
The suit was brought to recover damages for the lost profits of the mill, cause by the delay in
delivering the broken shaft. It was held that the plaintiff could not recover.

56
The discussion contained in the opinion of the court in that case leads to the conclusion that the
damages recoverable in case of the breach of a contract are two sorts, namely, (1) the ordinary,
natural, and in a sense necessary damage; and (2) special damages.
Ordinary damages is found in all breaches of contract where the are no special circumstances to
distinguish the case specially from other contracts. The consideration paid for an unperformed
promise is an instance of this sort of damage. In all such cases the damages recoverable are such
as naturally and generally would result from such a breach, "according to the usual course of
things." In case involving only ordinary damage no discussion is ever indulged as to whether that
damage was contemplated or not. This is conclusively presumed from the immediateness and
inevitableness of the damage, and the recovery of such damage follows as a necessary legal
consequence of the breach. Ordinary damage is assumed as a matter of law to be within the
contemplation of the parties.
Special damage, on the other hand, is such as follows less directly from the breach than ordinary
damage. It is only found in case where some external condition, apart from the actual terms to the
contract exists or intervenes, as it were, to give a turn to affairs and to increase damage in a way
that the promisor, without actual notice of that external condition, could not reasonably be
expected to foresee. Concerning this sort of damage, Hadley vs. Baxendale (1854) [supra] lays
down the definite and just rule that before such damage can be recovered the plaintiff must show
that the particular condition which made the damage a possible and likely consequence of the
breach was known to the defendant at the time the contract was made.
The statement that special damages may be recovered where the likelihood of such damages
flowing from the breach of the contract is contemplated and foreseen by the parties needs to be
supplemented by a proposition which, though not enunciated in Hadley vs. Baxendale, is yet
clearly to be drawn from subsequent cases. This is that where the damage which a plaintiff seeks
to recover as special damage is so far speculative as to be in contemplation of law remote,
notification of the special conditions which make that damage possible cannot render the defendant
liable therefor. To bring damages which would ordinarily be treated as remote within the category
of recoverable special damages, it is necessary that the condition should be made the subject of
contract in such sense as to become an express or implied term of the engagement.
Horne vs. Midland R. Co. (L. R., 8 C. P., 131) is a case where the damage which was sought to be
recovered as special damage was really remote, and some of the judges rightly places the
disallowance of the damage on the ground that to make such damage recoverable, it must so far
have been within the contemplation of the parties as to form at least an implied term of the contract.
But others proceeded on the idea that the notice given to the defendant was not sufficiently full
and definite. The result was the same in either view. The facts in that case were as follows: The
plaintiffs, shoe manufacturers at K, were under contract to supply by a certain day shoes to a firm
in London for the French government. They delivered the shoes to a carrier in sufficient time for
the goods to reach London at the time stipulated in the contract and informed the railroad agent
that the shoes would be thrown back upon their hands if they did not reach the destination in time.
The defendants negligently failed to forward the good in due season. The sale was therefore lost,
and the market having fallen, the plaintiffs had to sell at a loss.
In the preceding discussion we have considered the plaintiff's right chiefly against Teodorica
Endencia; and what has been said suffices in our opinion to demonstrate that the damages laid

57
under the second cause of action in the complaint could not be recovered from her, first, because
the damages laid under the second cause of action in the complaint could not be recovered from
her, first, because the damages in question are special damages which were not within
contemplation of the parties when the contract was made, and secondly, because said damages are
too remote to be the subject of recovery. This conclusion is also necessarily fatal to the right of the
plaintiff to recover such damages from the defendant corporation, for, as already suggested, by
advising Teodorica not to perform the contract, said corporation could in no event render itself
more extensively liable than the principle in the contract.
Our conclusion is that the judgment of the trial court should be affirmed, and it is so ordered, with
costs against the appellant.

58
 PICART VS SMITH
G.R. No. L-12219 March 15, 1918
AMADO PICART, plaintiff-appellant,
vs.
FRANK SMITH, JR., defendant-appellee.
Alejo Mabanag for appellant.
G. E. Campbell for appellee.
STREET, J.:
In this action the plaintiff, Amado Picart, seeks to recover of the defendant, Frank Smith, jr., the
sum of P31,000, as damages alleged to have been caused by an automobile driven by the defendant.
From a judgment of the Court of First Instance of the Province of La Union absolving the defendant
from liability the plaintiff has appealed.
The occurrence which gave rise to the institution of this action took place on December 12, 1912,
on the Carlatan Bridge, at San Fernando, La Union. It appears that upon the occasion in question
the plaintiff was riding on his pony over said bridge. Before he had gotten half way across, the
defendant approached from the opposite direction in an automobile, going at the rate of about ten
or twelve miles per hour. As the defendant neared the bridge he saw a horseman on it and blew his
horn to give warning of his approach. He continued 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 before him
was not observing the rule of the road.
The plaintiff, it appears, saw the automobile coming and heard the warning signals. However,
being perturbed by the novelty of the apparition or the rapidity of the approach, he pulled the pony
closely up against the railing on the right side of the bridge instead of going to the left. He says
that the reason he did this was that he thought he did not have sufficient time to get over to the
other side. The bridge is shown to have a length of about 75 meters and a width of 4.80 meters. As
the automobile approached, the defendant guided it toward 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
other side. The pony had not as yet exhibited fright, and the rider had made no sign for the
automobile to stop. Seeing that the pony was apparently quiet, the defendant, instead of veering to
the right while yet some distance away or slowing down, continued to approach directly toward
the horse without diminution of speed. When he had gotten quite near, there being then no
possibility of the horse getting across to the other side, the defendant quickly turned his car
sufficiently to the right to escape hitting the horse alongside of the railing where it as then standing;
but in so doing the automobile passed in such close proximity to the animal that it became
frightened and turned its body across the bridge with its head toward the railing. In so doing, it as
struck on the hock of the left hind leg by the flange of the car and the limb was broken. The horse
fell and its rider was thrown off with some violence. From the evidence adduced in the case we
believe that when the accident occurred the free space where the pony stood between the
automobile and the railing of the bridge was probably less than one and one half meters. As a result
of its injuries the horse died. The plaintiff received contusions which caused temporary
unconsciousness and required medical attention for several days.
The question presented for decision is whether or not the defendant in maneuvering his car in the
manner above described was guilty of negligence such as gives rise to a civil obligation to repair

59
the damage 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 the center of the bridge it was demonstrated to his eyes that this 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 vehicle. In the nature of things this change of situation occurred while
the automobile was yet some distance away; and from this moment it was not longer within the
power of the plaintiff to escape being run down by going to a place of greater safety. The control
of the situation had then passed entirely to the defendant; and it was his duty either to bring his car
to an immediate stop or, seeing that there were 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. Instead of doing
this, the defendant ran straight on until he was almost upon the horse. He was, we think, deceived
into doing this by the fact that the horse had not yet exhibited fright. But in view of the known
nature of horses, there was an appreciable risk that, if the animal in question was unacquainted
with automobiles, he might get exited and jump under the conditions which here confronted him.
When the defendant exposed the horse and rider to this danger he was, in our opinion, negligent
in the eye of the law.
The test by which to determine the existence of negligence in a 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 situation? If not, then he is guilty of negligence. The law here in effect adopts the standard
supposed to be supplied by the imaginary conduct of the discreet paterfamilias of the Roman law.
The existence of negligence in a given case is not determined by reference to the personal judgment
of the actor in the situation before him. The law considers what would be reckless, blameworthy,
or negligent in the man of ordinary intelligence and prudence and determines liability by that.
The question as to what would constitute the conduct of a prudent man in a given situation must
of course be always determined in the light of human experience and in view of the facts involved
in the particular case. Abstract speculations cannot here be of much value but this much can be
profitably said: Reasonable men govern their conduct by the circumstances which are before them
or known to them. They are not, and are not supposed to be, omniscient of the future. Hence they
can be expected to take care only when there is something before them to suggest or warn of
danger. Could a prudent man, in the case under consideration, foresee harm as a result of the course
actually pursued? If so, it was the duty of the actor to take precautions to guard against that harm.
Reasonable foresight of harm, followed by ignoring of the suggestion born of this prevision, is
always necessary before negligence can be held to exist. Stated in these terms, the proper criterion
for determining the existence of negligence in a given case is this: Conduct is said to be negligent
when a prudent man in the position of the tortfeasor would have foreseen that an effect harmful to
another was sufficiently probable to warrant his foregoing conduct or guarding against its
consequences.
Applying this test to the conduct of the defendant in the present case we think that negligence is
clearly established. A prudent man, placed in the position of the defendant, would in our opinion,
have recognized that the course which he was pursuing was fraught with risk, and would therefore
have foreseen harm to the horse and the rider as reasonable consequence of that course. Under
these circumstances the law imposed on the defendant the duty to guard against the threatened
harm.

60
It goes without saying that the plaintiff himself was not free from fault, for he was guilty of
antecedent negligence in planting himself on the wrong side of the road. But as we have already
stated, the defendant was also negligent; and in such case the problem always is to discover which
agent is immediately and directly responsible. It will be noted that the negligent acts of the two
parties were not contemporaneous, since the negligence of the defendant succeeded the negligence
of the plaintiff by an appreciable interval. Under these circumstances the law is that the person
who has the last fair chance to avoid the impending harm and fails to do so is chargeable with the
consequences, without reference to the prior negligence of the other party.
The decision in the case of Rkes vs. Atlantic, Gulf and Pacific Co. (7 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 court of a justice of the peace. In this connection it appears that soon after the
accident in question occurred, the plaintiff caused criminal proceedings to be instituted before a
justice of the peace charging the defendant with the infliction of serious injuries (lesiones graves).
At the preliminary investigation the defendant was discharged by the magistrate and the
proceedings were dismissed. Conceding that the acquittal of the defendant at the trial upon the
merits in a criminal prosecution for the offense mentioned would be res adjudicata upon the
question of his civil liability arising from negligence -- a point upon which it is unnecessary to
express an opinion -- the action of the justice of the peace in dismissing the criminal proceeding

61
upon the preliminary hearing can have no effect. (See U. S. vs. Banzuela and Banzuela, 31 Phil.
Rep., 564.)
From what has been said it results that the judgment of the lower court must be reversed, and
judgment is her rendered that the plaintiff recover of the defendant the sum of two hundred pesos
(P200), with costs of other instances. The sum here awarded is estimated to include the value of
the horse, medical expenses of the plaintiff, the loss or damage occasioned to articles of his apparel,
and lawful 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 not to be recoverable. So ordered.

62
 UMALI VS BACANI
G.R. No. L-40570 January 30, 1976
TEODORO C. UMALI, petitioner,
vs.
HON. ANGEL BACANI, in his capacity as Presiding Judge of Branch IX of the Court of
First Instance of Pangasinan and FIDEL H. SAYNES, respondents.
Julia M. Armas for petitioner.
Antonio de los Reyes for private respondent.

ESGUERRA, J.:
Petition for certiorari to review the decision of the Court of First Instance of Pangasinan Branch
IX, in Civil Case No. U2412, entitled, "Fidel H. Saynes, plaintiff-appellee versus Teodoro C.
Umali, defendant-appellant", which found the death by electrocution of Manuel Saynes, a boy of
3 years and 8 months, as "due to the fault or negligence of the defendant (Umali) as owner and
manager of the Alcala Electric Plant", although the liability of defendant is mitigated by the
contributory negligence of the parents of the boy "in not providing for the proper and delegate
supervision and control over their son The dispositive part of the decision reads as follows:
Wherefore, the Court hereby renders judgment in favor of the plaintiff by ordering the defendant
to pay to the plaintiff the sum of Five Thousand Pesos (P5,000.00) for the death of his son, Manuel
Saynes; the sum of One Thousand Two Hundred Pesos (P1,200.00) for actual expenses for and in
connection with the burial of said deceased child, and the further sum of Three Thousand Pesos
(P3,000.00) for moral damages and Five Hundred (P500.00) Pesos as reasonable attorney's fee, or
a total of Nine Thousand Seven Hundred (P9,700.00) Pesos, and to pay the costs of this suit. It Is
So Ordered.
Undisputed facts appearing of record are:
On May 14, 1972, a storm with strong rain hit the Municipality of Alcala Pangasinan, which started
from 2:00 o'clock in the afternoon and lasted up to about midnight of the same day. During the
storm, the banana plants standing on an elevated ground along the barrio road in San Pedro Ili of
said municipality and near the transmission line of the Alcala Electric Plant were blown down and
fell on the electric wire. As a result, the live electric wire was cut, one end of which was left
hanging on the electric post and the other fell to the ground under the fallen banana plants.
On the following morning, at about 9:00 o'clock barrio captain Luciano Bueno of San Pedro Iii
who was passing by saw the broken electric wire and so he warned the people in the place not to
go near the wire for they might get hurt. He also saw Cipriano Baldomero, a laborer of the Alcala
Electric Plant near the place and notified him right then and there of the broken line and asked him
to fix it, but the latter told the barrio captain that he could not do it but that he was going to look
for the lineman to fix it.
Sometime after the barrio captain and Cipriano Baldomero had left the place, a small boy of 3
years and 8 months old by the name of Manuel P. Saynes, whose house is just on the opposite side
of the road, went to the place where the broken line wire was and got in contact with it. The boy
was electrocuted and he subsequently died. It was only after the electrocution of Manuel Saynes
that the broken wire was fixed at about 10:00 o'clock on the same morning by the lineman of the
electric plant.

63
Petitioner claims that he could not be liable under the concept of quasi-delict or tort as owner and
manager of the Alcala Electric Plant because the proximate cause of the boy's death electrocution
could not be due to any negligence on his part, but rather to a fortuitous event-the storm that caused
the banana plants to fall and cut the electric line-pointing out the absence of negligence on the part
of his employee Cipriano Baldomero who tried to have the line repaired and the presence of
negligence of the parents of the child in allowing him to leave his house during that time.
A careful examination of the record convinces Us that a series of negligence on the part of
defendants' employees in the Alcala Electric Plant resulted in the death of the victim by
electrocution. First, by the very evidence of the defendant, there were big and tall banana plants at
the place of the incident standing on an elevated ground which were about 30 feet high and which
were higher than the electric post supporting the electric line, and yet the employees of the
defendant who, with ordinary foresight, could have easily seen that even in case of moderate winds
the electric line would be endangered by banana plants being blown down, did not even take the
necessary precaution to eliminate that source of danger to the electric line. Second, even after the
employees of the Alcala Electric Plant were already aware of the possible damage the storm of
May 14, 1972, could have caused their electric lines, thus becoming a possible threat to life and
property, they did not cut off from the plant the flow of electricity along the lines, an act they could
have easily done pending inspection of the wires to see if they had been cut. Third, employee
Cipriano Baldomero was negligent on the morning of the incident because even if he was already
made aware of the live cut wire, he did not have the foresight to realize that the same posed a
danger to life and property, and that he should have taken the necessary precaution to prevent
anybody from approaching the live wire; instead Baldomero left the premises because what was
foremost in his mind was the repair of the line, obviously forgetting that if left unattended to it
could endanger life and property.
On defendants' argument that the proximate cause of the victim's death could be attributed to the
parents' negligence in allowing a child of tender age to go out of the house alone, We could readily
see that because of the aforementioned series of negligence on the part of defendants' employees
resulting in a live wire lying on the premises without any visible warning of its lethal character,
anybody, even a responsible grown up or not necessarily an innocent child, could have met the
same fate that befell the victim. It may be true, as the lower Court found out, that the contributory
negligence of the victim's parents in not properly taking care of the child, which enabled him to
leave the house alone on the morning of the incident and go to a nearby place cut wire was very
near the house (where victim was living) where the fatal fallen wire electrocuted him, might
mitigate respondent's liability, but we cannot agree with petitioner's theory that the parents'
negligence constituted the proximate cause of the victim's death because the real proximate cause
was the fallen live wire which posed a threat to life and property on that morning due to the series
of negligence adverted to above committed by defendants' employees and which could have killed
any other person who might by accident get into contact with it. Stated otherwise, even if the child
was allowed to leave the house unattended due to the parents' negligence, he would not have died
that morning where it not for the cut live wire he accidentally touched.
Art. 2179 of the Civil Code provides that if the negligence of the plaintiff (parents of the victim in
this case) was only contributory, the immediate and proximate cause of the injury being the
defendants' lack of due care, the plaintiff may recover damages, but the courts shall mitigate the

64
damages to be awarded. This law may be availed of by the petitioner but does not exempt him
from liability. Petitioner's liability for injury caused by his employees negligence is well defined
in par. 4, of Article 2180 of the Civil Code, which states:
The owner and manager of an establishment or enterprise are likewise responsible for damages
caused by their employees in the service of the branches in which the latter are employed or on
tile occasion of their functions.
The negligence of the employee is presumed to be the negligence of the employer because the
employer is supposed to exercise supervision over the work of the employees. This liability of the
employer is primary and direct (Standard Vacuum Oil Co. vs. Tan and Court of Appeals, 107 Phil.
109). In fact the proper defense for the employer to raise so that he may escape liability is to prove
that he exercised, the diligence of the good father of the family to prevent damage not only in the
selection of his employees but also in adequately supervising them over their work. This defense
was not adequately proven as found by the trial Court, and We do not find any sufficient reason to
deviate from its finding.
Notwithstanding diligent efforts, we fail to fired any reversible error committed by the trial Court
in this case, either in its appreciation of the evidence on questions of facts or on the interpretation
and application of laws government quasi-delicts and liabilities emanating therefrom. The
inevitable conclusion is that no error amounting to grave abuse of discretion was committed and
the decision must be left untouched.
WHEREFORE, the decision of respondent Court dated June 27, 1974 is affirmed.

65
 RAKES VS AG & P
G.R. No. 1719 January 23, 1907
M. H., RAKES, plaintiff-appellee,
vs.
THE ATLANTIC, GULF AND PACIFIC COMPANY, defendant-appellant.
A. D. Gibbs for appellant.
F. G. Waite, & Thimas Kepner for appellee.
TRACEY, J.:
This is an action for damages. The plaintiff, one of a gang of eight negro laborers in the
employment of the defendant, was at work transporting iron rails from a barge in the harbor to the
company's yard near the malecon in Manila. Plaintiff claims that but one hand car was used in this
work. The defendant has proved that there were two immediately following one another, upon
which were piled lengthwise seven rails, each weighing 560 pounds, so that the ends of the rails
lay upon two crosspieces or sills secured to the cars, but without side pieces or guards to prevent
them from slipping off. According to the testimony of the plaintiff, the men were either in the rear
of the car or at its sides. According to that defendant, some of them were also in front, hauling by
a rope. At a certain spot at or near the water's edge the track sagged, the tie broke, the car either
canted or upset, the rails slid off and caught the plaintiff, breaking his leg, which was afterwards
amputated at about the knee.
This first point for the plaintiff to establish was that the accident happened through the negligence
of the defendant. The detailed description by the defendant's witnesses of the construction and
quality of the track proves that if was up to the general stranded of tramways of that character, the
foundation consisting on land of blocks or crosspieces of wood, by 8 inches thick and from 8 to
10 feet long laid, on the surface of the ground, upon which at a right angle rested stringers of the
same thickness, but from 24 to 30 feet in length. On the across the stringers the parallel with the
blocks were the ties to which the tracks were fastened. After the road reached the water's edge, the
blocks or crosspieces were replaced with pilling, capped by timbers extending from one side to the
other. The tracks were each about 2 feet wide and the two inside rails of the parallel tracks about
18 inches apart. It was admitted that there were no side pieces or guards on the car; that where no
ends of the rails of the track met each other and also where the stringers joined, there were no fish
plates. the defendant has not effectually overcome the plaintiff's proof that the joints between the
rails were immediately above the joints between the underlying stringers.
The cause of the sagging of the tracks and the breaking of the tie, which was the immediate
occasion of the accident, is not clear in the evidence, but is found by the trial court and is admitted
in the briefs and in the argument to have been the dislodging of the crosspiece or piling under the
stringer by the water of the bay raised by a recent typhoon. The superintendent of the company
attributed it to the giving way of the block laid in the sand. No effort was made to repair the injury
at the time of the occurrence. According to plaintiffs witnesses, a depression of the track, varying
from one half inch to one inch and a half, was therafter apparent to the eye, and a fellow workman
of the plaintiff swears that the day before the accident he called the attention of McKenna, the
foreman, to it and asked by simply straightening out the crosspiece, resetting the block under the
stringer and renewing the tie, but otherwise leaving the very same timbers as before. It has not

66
proven that the company inspected the track after the typhoon or had any proper system of
inspection.
In order to charge the defendant with negligence, it was necessary to show a breach of duty on its
part in failing either to properly secure the load on iron to vehicles transporting it, or to skillfully
build the tramway or to maintain it in proper condition, or to vigilantly inspect and repair the
roadway as soon as the depression in it became visible. It is upon the failure of the defendant to
repair the weakened track, after notice of its condition, that the judge below based his judgment.
This case presents many important matters for our decision, and first among them is the standard
of duty which we shall establish in our jurisprudence on the part of employees toward employees.
The lack or the harshness of legal rules on this subject has led many countries to enact designed to
put these relations on a fair basis in the form of compensation or liability laws or the institution of
insurance. In the absence of special legislation we find no difficulty in so applying the general
principles of our law as to work out a just result.
Article 1092 of the Civil Code provides:
Civil obligations, arising from crimes or misdemeanors, shall be governed by the provisions of the
Penal Code.
And article 568 of the latter code provides:
He who shall execute through reckless negligence an act that if done with malice would constitute
a grave crime, shall be punished.
And article 590 provides that the following shall be punished:
4. Those who by simple imprudence or negligence, without committing any infraction of
regulations, shall cause an injury which, had malice intervened, would have constituted a crime or
misdemeanor.
And finally by articles 19 and 20, the liability of owners and employers for the faults of their
servants and representatives is declared to be civil and subsidiary in its character.
It is contented by the defendant, as its first defense to the action, that the necessary conclusion
from these collated laws is that the remedy for injuries through negligence lies only in a criminal
action in which the official criminally responsible must be made primarily liable and his employer
held only subsidiarily to him. According to this theory the plaintiff should have procured the arrest
of the representative of the company accountable for not repairing the tract, and on his prosecution
a suitable fine should have been imposed, payable primarily by him and secondarily by his
employer.
This reasoning misconceived the plan of the Spanish codes upon this subject. Article 1093 of the
Civil Code makes obligations arising from faults or negligence not punished by the law, subject to
the provisions of Chapter 11 of Title XVI. Section 1902 of that chapter reads:
A person who by an act or omission causes damage to another when there is fault or negligence
shall be obliged to repair the damage so done.
SEC. 1903. The obligation imposed by the preceding article is demandable, not only for personal
acts and omissions, but also for those of the persons for whom they should be responsible.
The father, and on his death or incapacity, the mother, is liable for the damages caused by the
minors who live with them.
xxx xxx xxx

67
Owners or directors of an establishment or enterprise are equally liable for the damages caused by
their employees in the service of the branches in which the latter may be employed or in the
performance of their duties.
xxx xxx xxx
The liability referred to in this article shall cease when the persons mentioned therein prove that
they employed all the diligence of a good father of a family to avoid the damages.
As an answer to the argument urged in this particular action it may be sufficient to point out that
nowhere in our general statutes is the employer penalized for failure to provide or maintain safe
appliances for his workmen. His obligation therefore is one "not punished by the law " and falls
under civil rather than criminal jurisprudence. But the answer may be a broader one. We should
be reluctant, under any conditions, to adopt a forced construction of these scientific codes, such as
is proposed by the defendant, that would rob some of these articles of effect, would shut out
litigants their will from the civil courts, would make the assertion of their rights dependent upon
the selection for prosecution of the proper criminal offender, and render recovery doubtful by
reason of the strict rules of proof prevailing in criminal actions. Even if these articles had always
stood alone, such a construction would be unnecessary, but clear light is thrown upon their
meaning by the provisions of the Law of Criminal Procedure of Spain (Ley de Enjuiciamiento
Criminal), which, though n ever in actual force in these Islands, was formerly given a suppletory
or explanatory effect. Under article 111 of this law, both classes of action, civil and criminal, might
be prosecuted jointly or separately, but while the penal action was pending the civil was suspended.
According to article 112, the penal action once started, the civil remedy should be sought therewith,
unless it had been waived by the party injured or been expressly reserved by him for civil
proceedings for the future. If the civil action alone was prosecuted, arising out of a crime that could
be enforced by only on private complaint, the penal action thereunder should be extinguished.
These provisions are in harmony with those of articles 23 and 133 of our Penal Code on the same
subject.
An examination of this topic might be carried much further, but the citations of these articles
suffices to show that the civil liability was not intended to be merged in the criminal nor even to
be suspended thereby, except as expressly provided by law. Where an individual is civilly liable
for a negligent act or omission, it is not required that the inured party should seek out a third person
criminally liable whose prosecution must be a condition precedent to the enforcement of the civil
right.
Under article 20 of the Penal Code the responsibility of an employer may be regarded as subsidiary
in respect of criminal actions against his employees only while they are process of prosecution, or
in so far as they determinate the existence of the criminal act from which liability arises, and his
obligation under the civil law and its enforcement in the civil courts is not barred thereby unless
by election of the injured person. Inasmuch as no criminal in question, the provisions of the Penal
Code can not affect this action. This construction renders it unnecessary to finally determine here
whether this subsidiary civil liability in penal actions survived the laws that fully regulated it or
has been abrogated by the American civil and criminal procedure now in force in the Philippines.
The difficulty in construing the articles of the code above cited in this case appears from the briefs
before us to have arisen from the interpretation of the words of article 1093, "fault or negligence
not punished by law," as applied to the comprehensive definition of offenses in articles 568 and

68
590 of the Penal Code. It has been shown that the liability of an employer arising out of his relation
to his employee who is the offender is not to be regarded as derived from negligence punished by
the law, within the meaning of articles 1092 and 1093. More than this, however, it can not be said
to fall within the class of acts unpunished by the law, the consequences of which are regulated by
articles 1902 and 1903 of the Civil Code. The acts to which these articles are applicable are
understood to be those and growing out of preexisting duties of the parties to one another. But
were relations already formed give rise to duties, whether springing from contract or quasi contract,
then breaches of those duties are subject to articles 1101, 1103, and 1104, of the same code. A
typical application of the distinction may be found in the consequences of a railway accident due
to defective machinery supplied by the employer. His liability to his employee would arise out of
the contract of employment, that to the passengers out of the contract for passage. while that to
that injured bystander would originate in the negligent act itself. This distinction is thus clearly set
forth by Manresa in his commentary on article 1093.
We are with reference to such obligations, that culpa, or negligence, may be understood in two
difference senses; either as culpa, substantive and independent, which on account of its origin
arises in an obligation between two persons not formerly bound by any other obligation; or as
an incident in the performance of an obligation; or as already existed, which can not be presumed
to exist without the other, and which increases the liability arising from the already exiting
obligation.
Of these two species of culpa the first one mentioned, existing by itself, may be also considered
as a real source of an independent obligation, and, as chapter 2, title 16 of this book of the code is
devoted to it, it is logical to presume that the reference contained in article 1093 is limited thereto
and that it does not extend to those provisions relating to the other species of culpa (negligence),
the nature of which we will discuss later. (Vol. 8, p. 29.)
And in his commentary on articles 1102 and 1104 he says that these two species of negligence
may be somewhat inexactly described as contractual and extra-contractual, the letter being
the culpa aquiliana of the Roman law and not entailing so strict an obligation as the former. This
terminology is unreservedly accepted by Sanchez-Roman (Derecho Civil, fourth section, Chapter
XI, Article II, No. 12), and the principle stated is supported be decisions of the supreme court of
Spain, among them those of November 20, 1896 (80 Jurisprudencia Civil, No. 151), and June 27,
1894 (75 Jurisprudencia Civil, No. 182). The contract is one for hire and not one of mandate.
(March 10, 1897, 81 Jurisprudencia Civil, No. 107.)
Spanish Jurisprudencia prior to the adoption of the Working Men's Accident Law of January 30,
1900, throws uncertain light on the relation between master and workman. Moved by the quick
industrial development of their people, the courts of France early applied to the subject the
principles common to the law of both countries, which are lucidly discussed by the leading French
commentators.
The original French theory, resting the responsibility of owners of industrial enterprises upon
articles 1382, 1383, and 1384 of the Code Napoleon, corresponding in scope to articles 1902 and
1903 of the Spanish Code, soon yielded to the principle that the true basis is the contractual
obligation of the employer and employee. (See 18 Dalloz, 196, Title Travail, 331.)
Later the hardships resulting from special exemptions inserted in contracts for employment led to
the discovery of a third basis for liability in an article of he French Code making the possessor of

69
any object answerable for damage done by it while in his charge. Our law having no counterpart
of this article, applicable to every kind of object, we need consider neither the theory growing out
of it nor that of "professional risk" more recently imposed by express legislation, but rather
adopting the interpretation of our Civil Code above given, find a rule for this case in the contractual
obligation. This contractual obligation, implied from the relation and perhaps so inherent in its
nature to be invariable by the parties, binds the employer to provide safe appliances for the use of
the employee, thus closely corresponding to English and American Law. On these principles it
was the duty of the defendant to build and to maintain its track in reasonably sound condition, so
as to protect its workingmen from unnecessary danger. It is plain that in one respect or the other it
failed in its duty, otherwise the accident could not have occurred; consequently the negligence of
the defendant is established.
Another contention of the defense is that the injury resulted to the plaintiff as a risk incident to his
employment and, as such, one assumed by him. It is evident that this can not be the case if the
occurrence was due to the failure to repair the track or to duly inspect, it for the employee is not
presumed to have stipulated that the employer might neglect his legal duty. Nor may it be excused
upon the ground that the negligence leading to the accident was that of a fellow-servant of the
injured man. It is not apparent to us that the intervention of a third person can relieve the defendant
from the performance of its duty nor impose upon the plaintiff the consequences of an act or
omission not his own. Sua cuique culpa nocet. This doctrine, known as "the fellow-servant, rule,"
we are not disposed to introduce into our jurisprudence. Adopted in England by Lord Abinger in
the case of Prescott vs. Fowler (3 Meeson & Welsby, 1) in 1837, it has since been effectually
abrogated by "the Employers' Liability Acts" and the "Compensation Law." The American States
which applied it appear to be gradually getting rid of it; for instance, the New York State legislature
of 1906 did away with it in respect to railroad companies, and had in hand a scheme for its total
abolition. It has never found place in the civil law of continental Europe. (Dalloz, vol. 39, 1858,
Title Responsibilite, 630, and vol. 15, 1895, same title, 804. Also more recent instances in Fuzier-
Herman, Title Responsibilite Civile, 710.)
The French Cour de Cassation clearly laid down the contrary principle in its judgment of June 28,
1841, in the case of Reygasse, and has since adhered to it.
The most controverted question in the case is that of the negligence of the plaintiff, contributing
to the accident, to what extent it existed in fact and what legal effect is to be given it. In two
particulars is he charged with carelessness:
First. That having noticed the depression in the track he continued his work; and
Second. That he walked on the ends of the ties at the side of the car instead of along the boards,
either before or behind it.
As to the first point, the depression in the track night indicate either a serious or a rival difficulty.
There is nothing in the evidence to show that the plaintiff did or could see the displaced timber
underneath the sleeper. The claim that he must have done so is a conclusion drawn from what is
assumed to have been a probable condition of things not before us, rather than a fair inference
from the testimony. While the method of construction may have been known to the men who had
helped build the road, it was otherwise with the plaintiff who had worked at this job less than two
days. A man may easily walk along a railway without perceiving a displacement of the underlying
timbers. The foreman testified that he knew the state of the track on the day of the accident and

70
that it was then in good condition, and one Danridge, a witness for the defendant, working on the
same job, swore that he never noticed the depression in the track and never saw any bad place in
it. The sagging of the track this plaintiff did perceive, but that was reported in his hearing to the
foreman who neither promised nor refused to repair it. His lack of caution in continuing at his
work after noticing the slight depression of the rail was not of so gross a nature as to constitute
negligence, barring his recovery under the severe American rule. On this point we accept the
conclusion of the trial judge who found as facts that "the plaintiff did not know the cause of the
one rail being lower than then other" and "it does not appear in this case that the plaintiff knew
before the accident occurred that the stringers and rails joined in the same place."
Were we not disposed to agree with these findings they would, nevertheless, be binding upon us,
because not "plainly and manifestly against the weight of evidence," as those words of section 497,
paragraph 3 of the Code of Civil Procedure were interpreted by the Supreme Court of the United
States in the De la Rama case (201 U. S., 303).
In respect of the second charge of negligence against the plaintiff, the judgment below is not so
specific. While the judge remarks that the evidence does not justify the finding that the car was
pulled by means of a rope attached to the front end or to the rails upon it, and further that the
circumstances in evidence make it clear that the persons necessary to operate the car could not
walk upon the plank between the rails and that, therefore, it was necessary for the employees
moving it to get hold upon it as best they could, there is no specific finding upon the instruction
given by the defendant to its employees to walk only upon the planks, nor upon the necessity of
the plaintiff putting himself upon the ties at the side in order to get hold upon the car. Therefore
the findings of the judge below leave the conduct of the plaintiff in walking along the side of the
loaded car, upon the open ties, over the depressed track, free to our inquiry.
While the plaintiff and his witnesses swear that not only were they not forbidden to proceed in this
way, but were expressly directed by the foreman to do so, both the officers of the company and
three of the workmen testify that there was a general prohibition frequently made known to all the
gang against walking by the side of the car, and the foreman swears that he repeated the prohibition
before the starting of this particular load. On this contradiction of proof we think that the
preponderance is in favor of the defendant's contention to the extent of the general order being
made known to the workmen. If so, the disobedience of the plaintiff in placing himself in danger
contributed in some degree to the injury as a proximate, although not as its primary cause. This
conclusion presents sharply the question, What effect is to be given such an act of contributory
negligence? Does it defeat a recovery, according to the American rule, or is it to be taken only in
reduction of damages?
While a few of the American States have adopted to a greater or less extent the doctrine of
comparative negligence, allowing a recovery by a plaintiff whose own act contributed to his injury,
provided his negligence was slight as compared with that of the defendant, and some others have
accepted the theory of proportional damages, reducing the award to a plaintiff in proportion to his
responsibility for the accident, yet the overwhelming weight of adjudication establishes the
principle in American jurisprudence that any negligence, however slight, on the part of the person
injured which is one of the causes proximately contributing to his injury, bars his recovery.
(English and American Encyclopedia of law, Titles "Comparative Negligence" and Contributory
Negligence.")

71
In Grant Trunk Railway Company vs. Ives (144 U. S., 408, at page 429) the Supreme Court of the
United States thus authoritatively states the present rule of law:
Although the defendant's' negligence may have been the primary cause of the injury complained
of, yet an action for such injury can not be maintained if the proximate and immediate cause of the
injury can be traced to the want of ordinary care and caution in the person injured; subject to this
qualification, which has grown up in recent years (having been first enunciated in Davies vs. Mann,
10 M. & W., 546) that the contributory negligence of the party injured will not defeat the action if
it be shown that the defendant might, by the exercise of reasonable care and prudence, have
avoided the consequences of the injured party's negligence.
There are may cases in the supreme court of Spain in which the defendant was exonerated, but
when analyzed they prove to have been decided either upon the point that he was not negligent or
that the negligence of the plaintiff was the immediate cause of the casualty or that the accident was
due to casus fortuitus. Of the first class in the decision of January 26, 1887 (38 Jurisprudencia
Criminal, No. 70), in which a railway employee, standing on a car, was thrown therefrom and
killed by the shock following the backing up of the engine. It was held that the management of the
train and engine being in conformity with proper rules of the company, showed no fault on its part.
Of the second class are the decision of the 15th of January, the 19th of February, and the 7th of
March, 1902, stated in Alcubilla's Index of that year; and of the third class the decision of the 4th
of June, 1888 (64 Jurisprudencia Civil, No. 1), in which the breaking down of plaintiff's dam by
the logs of the defendant impelled against it by the Tajo River, was held due to a freshet as a
fortuitous cause.
The decision of the 7th of March, 1902, on which stress has been laid, rested on two bases, one,
that the defendant was not negligent, because expressly relieved by royal order from the common
obligation imposed by the police law of maintaining a guard at the road crossing; the other, because
the act of the deceased in driving over level ground with unobstructed view in front of a train
running at speed, with the engine whistle blowing was the determining cause of the accident. It is
plain that the train was doing nothing but what it had a right to do and that the only fault lay with
the injured man. His negligence was not contributory, it was sole, and was of such an efficient
nature that without it no catastrophe could have happened.
On the other hand, there are many cases reported in which it seems plain that the plaintiff sustaining
damages was not free from contributory negligence; for instance, the decision of the 14th of
December, 1894 (76 Jurisprudencia Civil, No. 134), in which the owner of a building was held
liable for not furnishing protection to workmen engaged in hanging out flags, when the latter must
have perceived beforehand the danger attending the work.
None of those cases define the effect to be given the negligence of a plaintiff which contributed to
his injury as one of its causes, though not the principal one, and we are left to seek the theory of
the civil law in the practice of other countries.
In France in the case of Marquant, August 20, 1879, the cour de cassation held that the carelessness
of the victim did not civilly relieve the person without whose fault the accident could not have
happened, but that the contributory negligence of the injured man had the effect only of reducing
the damages. The same principle was applied in the case of Recullet, November 10, 1888. and that
of Laugier of the 11th of November, 1896. (Fuzier-Herman, Title Responsibilite Cirile, 411, 412.)

72
Of like tenor are citations in Dalloz (vol. 18, 1806, Title Trail, 363, 364, and vol. 15, 1895, Title
Responsibilite, 193, 198).
In the Canadian Province of Quebee, which has retained for the most part the French Civil Law,
now embodied in a code following the Code Napoleon, a practice in accord with that of France is
laid down in many cases collected in the annotations to article 1053 of the code edited by
Beauchamps, 1904. One of these is Luttrell vs. Trottier, reported in La Revue de Jurisprudence,
volume 6, page 90, in which the court of Kings bench, otherwise known as the court of appeals,
the highest authority in the Dominion of Canada on points of French law, held that contributory
negligence did not exonerate the defendants whose fault had been the immediate cause of the
accident, but entitled him to a reduction of damages. Other similar cases in the provincial courts
have been overruled by appellate tribunals made up of common law judges drawn from other
provinces, who have preferred to impose uniformally throughout the Dominion the English theory
of contributory negligence. Such decisions throw no light upon the doctrines of the civil law.
Elsewhere we find this practice embodied in legislation; for instance, section 2 of article 2398 of
the Code of Portugal reads as follows:
If in the case of damage there was fault or negligence on the part of the person injured or in the
part of some one else, the indemnification shall be reduced in the first case, and in the second case
it shall be appropriated in proportion to such fault or negligence as provided in paragraphs 1 and
2 of section 2372.
And in article 1304 of the Austrian Code provides that the victim who is partly changeable with
the accident shall stand his damages in proportion to his fault, but when that proportion is incapable
of ascertainment, he shall share the liability equally with the person principally responsible. The
principle of proportional damages appears to be also adopted in article 51 of the Swiss Code. Even
in the United States in admirality jurisdictions, whose principles are derived from the civil law,
common fault in cases of collision have been disposed of not on the ground of contradictor
negligence, but on that of equal loss, the fault of the one part being offset against that of the other.
(Ralli vs. Troop, 157 U. S. 386; 97.)
The damage of both being added together and the sum equally divided, a decree is entered in favor
of the vessel sustaining the greater loss against the other for the excess of her damages over one-
half of the aggregate sum. (The Manitoba, 122 U. S., 97)
Exceptional practice appears to prevail in maritime law in other jurisdictions. The Spanish Code
of Commerce, article 827, makes each vessel for its own damage when both are the fault; this
provision restricted to a single class of the maritime accidents, falls for short of a recognition of
the principle of contributory negligence as understood in American Law, with which, indeed, it
has little in common. This is a plain from other articles of the same code; for instance, article 829,
referring to articles 826, 827, and 828, which provides: "In the cases above mentioned the civil
action of the owner against the person liable for the damage is reserved, as well as the criminal
liability which may appear."
The rule of the common law, a hard and fast one, not adjustable with respects of the faults of the
parties, appears to have grown out the original method of trial by jury, which rendered difficult a
nice balancing of responsibilities and which demanded an inflexible standard as a safeguard
against too ready symphaty for the injured. It was assumed that an exact measure of several
concurring faults was unattainable.

73
The reason why, in cases of mutual concurring negligence, neither party can maintain an action
against the other, is, not the wrong of the one is set off against the wrong of the other; it that the
law can not measure how much of the damage suffered is attributable to the plaintiff's own fault.
If he were allowed to recover, it might be that he would obtain from the other party compensation
for hiss own misconduct. (Heil vs. Glanding, 42 Penn. St. Rep., 493, 499.)
The parties being mutually in fault, there can be no appointment of damages. The law has no scales
to determine in such cases whose wrongdoing weighed most in the compound that occasioned the
mischief. (Railroad vs. Norton, 24 Penn. St. 565, 469.)
Experience with jury trials in negligence cases has brought American courts to review to relax the
vigor of the rule by freely exercising the power of setting aside verdicts deemed excessive, through
the device of granting new trials, unless reduced damages are stipulated for, amounting to a partial
revision of damages by the courts. It appears to us that the control by the court of the subject matter
may be secured on a moral logical basis and its judgment adjusted with greater nicety to the merits
of the litigants through the practice of offsetting their respective responsibilities. In the civil law
system the desirable end is not deemed beyond the capacity of its tribunals.
Whatever may prove to be the doctrine finally adopted in Spain or in other countries under the
stress and counter stress of novel schemers of legislation, we find the theory of damages laid down
in the judgment the most consistent with the history and the principals of our law in these Islands
and with its logical development.
Difficulty seems to be apprehended in deciding which acts of the injured party shall be considered
immediate causes of the accident. The test is simple. Distinction must be between the accident and
the injury, between the event itself, without which there could have been no accident, and those
acts of the victim not entering into it, independent of it, but contributing under review was the
displacement of the crosspiece or the failure to replace it. this produced the event giving occasion
for damages — that is, the shinking of the track and the sliding of the iron rails. To this event, the
act of the plaintiff in walking by the side of the car did not contribute, although it was an element
of the damage which came to himself. Had the crosspiece been out of place wholly or partly
thorough his act of omission of duty, the last would have been one of the determining causes of
the event or accident, for which he would have been responsible. Where he contributes to the
principal occurrence, as one of its determining factors, he can not recover. Where, in conjunction
with the occurrence, he contributes only to his own injury, he may recover the amount that the
defendant responsible for the event should pay for such injury, less a sum deemed a suitable
equivalent for his own imprudence.
Accepting, though with some hesitation, the judgment of the trial court, fixing the damage incurred
by the plaintiff at 5,000 pesos, the equivalent of 2,500 dollars, United States money, we deduct
therefrom 2,500 pesos, the amount fairly attributable to his negligence, and direct judgment to be
entered in favor of the plaintiff for the resulting sum of 2,500 pesos, with cost of both instances,
and ten days hereafter let the case be remanded to the court below for proper action. So ordered.

74
 ASSOCIATED BANK VS TAN
G.R. No. 156940 December 14, 2004
ASSOCIATED BANK (Now WESTMONT BANK), petitioner,
vs.
VICENTE HENRY TAN, respondent.

DECISION

PANGANIBAN, J.:
While banks are granted by law the right to debit the value of a dishonored check from a depositor’s
account, they must do so with the highest degree of care, so as not to prejudice the depositor
unduly.
The Case
Before us is a Petition for Review1 under Rule 45 of the Rules of Court, assailing the January 27,
2003 Decision2 of the Court of Appeals (CA) in CA-GR CV No. 56292. The CA disposed as
follows:
"WHEREFORE, premises considered, the Decision dated December 3, 1996, of the Regional Trial
Court of Cabanatuan City, Third Judicial Region, Branch 26, in Civil Case No. 892-AF is hereby
AFFIRMED. Costs against the [petitioner]."3
The Facts
The CA narrated the antecedents as follows:
"Vicente Henry Tan (hereafter TAN) is a businessman and a regular depositor-creditor of the
Associated Bank (hereinafter referred to as the BANK). Sometime in September 1990, he
deposited a postdated UCPB check with the said BANK in the amount of P101,000.00 issued to
him by a certain Willy Cheng from Tarlac. The check was duly entered in his bank record thereby
making his balance in the amount of P297,000.00, as of October 1, 1990, from his original deposit
of P196,000.00. Allegedly, upon advice and instruction of the BANK that the P101,000.00 check
was already cleared and backed up by sufficient funds, TAN, on the same date, withdrew the sum
of P240,000.00, leaving a balance of P57,793.45. A day after, TAN deposited the amount
of P50,000.00 making his existing balance in the amount of P107,793.45, because he has issued
several checks to his business partners, to wit:
CHECK DATE AMOUNT
NUMBERS
a. 138814 Sept. 29, 1990 P9,000.00
b. 138804 Oct. 8, 1990 9,350.00
c. 138787 Sept. 30, 1990 6,360.00
d. 138847 Sept. 29, 1990 21,850.00
e. 167054 Sept. 29, 1990 4,093.40
f. 138792 ` Sept. 29, 1990 3,546.00

75
 g. 138774 Oct. 2, 1990 6,600.00
h. 167072 Oct. 10, 1990 9,908.00
i. 168802 Oct. 10, 1990 3,650.00
"However, his suppliers and business partners went back to him alleging that the checks he issued
bounced for insufficiency of funds. Thereafter, TAN, thru his lawyer, informed the BANK to take
positive steps regarding the matter for he has adequate and sufficient funds to pay the amount of
the subject checks. Nonetheless, the BANK did not bother nor offer any apology regarding the
incident. Consequently, TAN, as plaintiff, filed a Complaint for Damages on December 19, 1990,
with the Regional Trial Court of Cabanatuan City, Third Judicial Region, docketed as Civil Case
No. 892-AF, against the BANK, as defendant.
"In his [C]omplaint, [respondent] maintained that he ha[d] sufficient funds to pay the subject
checks and alleged that his suppliers decreased in number for lack of trust. As he has been in the
business community for quite a time and has established a good record of reputation and probity,
plaintiff claimed that he suffered embarrassment, humiliation, besmirched reputation, mental
anxieties and sleepless nights because of the said unfortunate incident. [Respondent] further
averred that he continuously lost profits in the amount of P250,000.00. [Respondent] therefore
prayed for exemplary damages and that [petitioner] be ordered to pay him the sum
of P1,000,000.00 by way of moral damages, P250,000.00 as lost profits, P50,000.00 as attorney’s
fees plus 25% of the amount claimed including P1,000.00 per court appearance.
"Meanwhile, [petitioner] filed a Motion to Dismiss on February 7, 1991, but the same was denied
for lack of merit in an Order dated March 7, 1991. Thereafter, [petitioner] BANK on March 20,
1991 filed its Answer denying, among others, the allegations of [respondent] and alleged that no
banking institution would give an assurance to any of its client/depositor that the check deposited
by him had already been cleared and backed up by sufficient funds but it could only presume that
the same has been honored by the drawee bank in view of the lapse of time that ordinarily takes
for a check to be cleared. For its part, [petitioner] alleged that on October 2, 1990, it gave notice
to the [respondent] as to the return of his UCPB check deposit in the amount of P101,000.00,
hence, on even date, [respondent] deposited the amount of P50,000.00 to cover the returned check.
"By way of affirmative defense, [petitioner] averred that [respondent] had no cause of action
against it and argued that it has all the right to debit the account of the [respondent] by reason of
the dishonor of the check deposited by the [respondent] which was withdrawn by him prior to its
clearing. [Petitioner] further averred that it has no liability with respect to the clearing of deposited
checks as the clearing is being undertaken by the Central Bank and in accepting [the] check
deposit, it merely obligates itself as depositor’s collecting agent subject to actual payment by the
drawee bank. [Petitioner] therefore prayed that [respondent] be ordered to pay it the amount
of P1,000,000.00 by way of loss of goodwill, P7,000.00 as acceptance fee plus P500.00 per
appearance and by way of attorney’s fees.
"Considering that Westmont Bank has taken over the management of the affairs/properties of the
BANK, [respondent] on October 10, 1996, filed an Amended Complaint reiterating substantially
his allegations in the original complaint, except that the name of the previous defendant
ASSOCIATED BANK is now WESTMONT BANK.

76
"Trial ensured and thereafter, the court rendered its Decision dated December 3, 1996 in favor of
the [respondent] and against the [petitioner], ordering the latter to pay the [respondent] the sum
of P100,000.00 by way of moral damages, P75,000.00 as exemplary damages, P25,000.00 as
attorney’s fees, plus the costs of this suit. In making said ruling, it was shown that [respondent]
was not officially informed about the debiting of the P101,000.00 [from] his existing balance and
that the BANK merely allowed the [respondent] to use the fund prior to clearing merely for
accommodation because the BANK considered him as one of its valued clients. The trial court
ruled that the bank manager was negligent in handling the particular checking account of the
[respondent] stating that such lapses caused all the inconveniences to the [respondent]. The trial
court also took into consideration that [respondent’s] mother was originally maintaining with the
x x x BANK [a] current account as well as [a] time deposit, but [o]n one occasion, although his
mother made a deposit, the same was not credited in her favor but in the name of another."4
Petitioner appealed to the CA on the issues of whether it was within its rights, as collecting bank,
to debit the account of its client for a dishonored check; and whether it had informed respondent
about the dishonor prior to debiting his account.
Ruling of the Court of Appeals
Affirming the trial court, the CA ruled that the bank should not have authorized the withdrawal of
the value of the deposited check prior to its clearing. Having done so, contrary to its obligation to
treat respondent’s account with meticulous care, the bank violated its own policy. It thereby took
upon itself the obligation to officially inform respondent of the status of his account before
unilaterally debiting the amount of P101,000. Without such notice, it is estopped from blaming
him for failing to fund his account.
The CA opined that, had the P101,000 not been debited, respondent would have had sufficient
funds for the postdated checks he had issued. Thus, the supposed accommodation accorded by
petitioner to him is the proximate cause of his business woes and shame, for which it is liable for
damages.
Because of the bank’s negligence, the CA awarded respondent moral damages of P100,000. It also
granted him exemplary damages of P75,000 and attorney’s fees of P25,000.
Hence this Petition.5
Issue
In its Memorandum, petitioner raises the sole issue of "whether or not the petitioner, which is
acting as a collecting bank, has the right to debit the account of its client for a check deposit which
was dishonored by the drawee bank."6
The Court’s Ruling
The Petition has no merit.
Sole Issue:
Debit of Depositor’s Account
Petitioner-bank contends that its rights and obligations under the present set of facts were
misappreciated by the CA. It insists that its right to debit the amount of the dishonored check from
the account of respondent is clear and unmistakable. Even assuming that it did not give him notice
that the check had been dishonored, such right remains immediately enforceable.
In particular, petitioner argues that the check deposit slip accomplished by respondent on
September 17, 1990, expressly stipulated that the bank was obligating itself merely as the

77
depositor’s collecting agent and -- until such time as actual payment would be made to it -- it was
reserving the right to charge against the depositor’s account any amount previously credited.
Respondent was allowed to withdraw the amount of the check prior to clearing, merely as an act
of accommodation, it added.
At the outset, we stress that the trial court’s factual findings that were affirmed by the CA are not
subject to review by this Court.7 As petitioner itself takes no issue with those findings, we need
only to determine the legal consequence, based on the established facts.
Right of Setoff
A bank generally has a right of setoff over the deposits therein for the payment of any withdrawals
on the part of a depositor.8 The right of a collecting bank to debit a client’s account for the value
of a dishonored check that has previously been credited has fairly been established by
jurisprudence. To begin with, Article 1980 of the Civil Code provides that "[f]ixed, savings, and
current deposits of money in banks and similar institutions shall be governed by the provisions
concerning simple loan."
Hence, the relationship between banks and depositors has been held to be that of creditor and
debtor.9 Thus, legal compensation under Article 127810 of the Civil Code may take place "when all
the requisites mentioned in Article 1279 are present,"11 as follows:
"(1) That each one of the obligors be bound principally, and that he be at the same time a principal
creditor of the other;
(2) That both debts consist in a sum of money, or if the things due are consumable, they be of the
same kind, and also of the same quality if the latter has been stated;
(3) That the two debts be due;
(4) That they be liquidated and demandable;
(5) That over neither of them there be any retention or controversy, commenced by third persons
and communicated in due time to the debtor."12
Nonetheless, the real issue here is not so much the right of petitioner to debit respondent’s account
but, rather, the manner in which it exercised such right. The Court has held that even while the
right of setoff is conceded, separate is the question of whether that remedy has properly been
exercised.13
The liability of petitioner in this case ultimately revolves around the issue of whether it properly
exercised its right of setoff. The determination thereof hinges, in turn, on the bank’s role and
obligations, first, as respondent’s depositary bank; and second, as collecting agent for the check in
question.
Obligation as
Depositary Bank
In BPI v. Casa Montessori,14 the Court has emphasized that the banking business is impressed with
public interest. "Consequently, the highest degree of diligence is expected, and high standards of
integrity and performance are even required of it. By the nature of its functions, a bank is under
obligation to treat the accounts of its depositors with meticulous care."15
Also affirming this long standing doctrine, Philippine Bank of Commerce v. Court of Appeals16 has
held that "the degree of diligence required of banks is more than that of a good father of a family
where the fiduciary nature of their relationship with their depositors is concerned." 17 Indeed, the
banking business is vested with the trust and confidence of the public; hence the "appropriate

78
standard of diligence must be very high, if not the highest, degree of diligence." 18 The standard
applies, regardless of whether the account consists of only a few hundred pesos or of millions. 19
The fiduciary nature of banking, previously imposed by case law,20 is now enshrined in Republic
Act No. 8791 or the General Banking Law of 2000. Section 2 of the law specifically says that the
State recognizes the "fiduciary nature of banking that requires high standards of integrity and
performance."
Did petitioner treat respondent’s account with the highest degree of care? From all indications, it
did not.
It is undisputed -- nay, even admitted -- that purportedly as an act of accommodation to a valued
client, petitioner allowed the withdrawal of the face value of the deposited check prior to its
clearing. That act certainly disregarded the clearance requirement of the banking system. Such a
practice is unusual, because a check is not legal tender or money; 21 and its value can properly be
transferred to a depositor’s account only after the check has been cleared by the drawee bank.22
Under ordinary banking practice, after receiving a check deposit, a bank either immediately credit
the amount to a depositor’s account; or infuse value to that account only after the drawee bank
shall have paid such amount.23 Before the check shall have been cleared for deposit, the collecting
bank can only "assume" at its own risk -- as herein petitioner did -- that the check would be cleared
and paid out.
Reasonable business practice and prudence, moreover, dictated that petitioner should not have
authorized the withdrawal by respondent of P240,000 on October 1, 1990, as this amount was over
and above his outstanding cleared balance of P196,793.45.24 Hence, the lower courts correctly
appreciated the evidence in his favor.
Obligation as
Collecting Agent
Indeed, the bank deposit slip expressed this reservation:
"In receiving items on deposit, this Bank obligates itself only as the Depositor’s Collecting agent,
assuming no responsibility beyond carefulness in selecting correspondents, and until such time as
actual payments shall have come to its possession, this Bank reserves the right to charge back to
the Depositor’s account any amounts previously credited whether or not the deposited item is
returned. x x x."25
However, this reservation is not enough to insulate the bank from any liability. In the past, we have
expressed doubt about the binding force of such conditions unilaterally imposed by a bank without
the consent of the depositor.26 It is indeed arguable that "in signing the deposit slip, the depositor
does so only to identify himself and not to agree to the conditions set forth at the back of the deposit
slip."27
Further, by the express terms of the stipulation, petitioner took upon itself certain obligations as
respondent’s agent, consonant with the well-settled rule that the relationship between the payee or
holder of a commercial paper and the collecting bank is that of principal and agent. 28 Under Article
190929 of the Civil Code, such bank could be held liable not only for fraud, but also for negligence.
As a general rule, a bank is liable for the wrongful or tortuous acts and declarations of its officers
or agents within the course and scope of their employment. 30 Due to the very nature of their
business, banks are expected to exercise the highest degree of diligence in the selection and
supervision of their employees.31 Jurisprudence has established that the lack of diligence of a

79
servant is imputed to the negligence of the employer, when the negligent or wrongful act of the
former proximately results in an injury to a third person; 32 in this case, the depositor.
The manager of the bank’s Cabanatuan branch, Consorcia Santiago, categorically admitted that
she and the employees under her control had breached bank policies. They admittedly breached
those policies when, without clearance from the drawee bank in Baguio, they allowed respondent
to withdraw on October 1, 1990, the amount of the check deposited. Santiago testified that
respondent "was not officially informed about the debiting of the P101,000 from his existing
balance of P170,000 on October 2, 1990 x x x."33
Being the branch manager, Santiago clearly acted within the scope of her authority in authorizing
the withdrawal and the subsequent debiting without notice. Accordingly, what remains to be
determined is whether her actions proximately caused respondent’s injury. Proximate cause is that
which -- in a natural and continuous sequence, unbroken by any efficient intervening cause --
produces the injury, and without which the result would not have occurred. 34
Let us go back to the facts as they unfolded. It is undeniable that the bank’s premature authorization
of the withdrawal by respondent on October 1, 1990, triggered -- in rapid succession and in a
natural sequence -- the debiting of his account, the fall of his account balance to insufficient levels,
and the subsequent dishonor of his own checks for lack of funds. The CA correctly noted thus:
"x x x [T]he depositor x x x withdrew his money upon the advice by [petitioner] that his money
was already cleared. Without such advice, [respondent] would not have withdrawn the sum
of P240,000.00. Therefore, it cannot be denied that it was [petitioner’s] fault which allowed
[respondent] to withdraw a huge sum which he believed was already his.
"To emphasize, it is beyond cavil that [respondent] had sufficient funds for the check. Had
the P101,000.00 not [been] debited, the subject checks would not have been dishonored. Hence,
we can say that [respondent’s] injury arose from the dishonor of his well-funded checks. x x x."35
Aggravating matters, petitioner failed to show that it had immediately and duly informed
respondent of the debiting of his account. Nonetheless, it argues that the giving of notice was
discernible from his act of depositing P50,000 on October 2, 1990, to augment his account and
allow the debiting. This argument deserves short shrift.
First, notice was proper and ought to be expected. By the bank manager’s account, respondent was
considered a "valued client" whose checks had always been sufficiently funded from 1987 to
1990,36 until the October imbroglio. Thus, he deserved nothing less than an official notice of the
precarious condition of his account.
Second, under the provisions of the Negotiable Instruments Law regarding the liability of a general
indorser37 and the procedure for a notice of dishonor,38 it was incumbent on the bank to give proper
notice to respondent. In Gullas v. National Bank,39 the Court emphasized:
"x x x [A] general indorser of a negotiable instrument engages that if the instrument – the check
in this case – is dishonored and the necessary proceedings for its dishonor are duly taken, he will
pay the amount thereof to the holder (Sec. 66) It has been held by a long line of authorities that
notice of dishonor is necessary to charge an indorser and that the right of action against him does
not accrue until the notice is given.
"x x x. The fact we believe is undeniable that prior to the mailing of notice of dishonor, and without
waiting for any action by Gullas, the bank made use of the money standing in his account to make
good for the treasury warrant. At this point recall that Gullas was merely an indorser and had

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issued checks in good faith. As to a depositor who has funds sufficient to meet payment of a check
drawn by him in favor of a third party, it has been held that he has a right of action against the
bank for its refusal to pay such a check in the absence of notice to him that the bank has applied
the funds so deposited in extinguishment of past due claims held against him. (Callahan vs. Bank
of Anderson [1904], 2 Ann. Cas., 203.) However this may be, as to an indorser the situation is
different, and notice should actually have been given him in order that he might protect his
interests."40
Third, regarding the deposit of P50,000 made by respondent on October 2, 1990, we fully
subscribe to the CA’s observations that it was not unusual for a well-reputed businessman like
him, who "ordinarily takes note of the amount of money he takes and releases," to immediately
deposit money in his current account to answer for the postdated checks he had issued. 41
Damages
Inasmuch as petitioner does not contest the basis for the award of damages and attorney’s fees, we
will no longer address these matters.
WHEREFORE, the Petition is DENIED and the assailed Decision AFFIRMED. Costs against
petitioner.
SO ORDERED.

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