G.R. No.

46237

September 27, 1939

ROSALIO MARQUEZ, ET AL., plaintiffs-appellees, vs. BERNARDO CASTILLO, defendant-appellant. A.L. Katigbak for appellant. Teodorico Ona for appellee. DIAZ, J.: The plaintiffs and appellees surnamed Marquez sought to collect from the defendant and appellant, in the Court of First Instance of Tayabas, an indemnity in the sum of P4,900 for the death of Fernanda Marquez on whom they claim to be dependent for support, which death was caused by the reckless imprudence of Mariano Capulong, the defendant's chauffeur who ran over her on April 30, 1937, in the barrio of Lusacan of the municipality of Tiaong, Province of Tayabas. The plaintiff and appellee Maria Chomacera, in turn, sought to collect from the same defendant another indemnity in the sum of P100 for certain injuries received by her from the same cause and under the same circumstances which resulted in the death of said Fernanda Marquez. The defendant defended himself by alleging that the death of Fernanda Marquez was due to the exclusive fault and negligence of the chauffeur Mariano Capulong, and that in the selection and employment of the latter, as such, in his service, he exercised the due diligence of a good father of a family, so that he should not be made to answer for the damages caused by the imprudence of said employee. To this defense of the defendant, who at the same time alleged in his answer a counterclaim seeking an indemnity in the sum of P300 for the annoyance caused him by the plaintiffs, by compelling him to defend himself in the case, thereby incurring expenses in order to secure the services of an attorney, the plaintiffs and appellees filed a reply contending that it is of no avail to the defendant to have exercised the due diligence of a good father of a family in the selection and employment of the chauffeur Mariano Capulong claiming that the latter was duly licensed as such chauffeur, because, under the provisions of article 103 of the Revised Penal Code, he is, at any rate, bound subsidiarily to answer for the civil liability of said servant, subordinate, employee or chauffeur, for the reason that when the latter caused the death of the deceased Marquez, he was in the employ of the defendant. During the trial, the parties filed a stipulation of facts which appears inserted in the appealed decision, as follows: That Mariano Capulong is the same accused convicted and sentenced in criminal case No. 7103 of this court, as evidenced by the judgment dated May 6, 1937. xxx xxx xxx

That said Mariano Capulong is insolvent, according to the investigations conducted by us to this date. 1. That the defendant Bernardo Castillo has exercised due diligence as a good father of a family in selecting the chauffeur Mariano Capulong, and the plaintiffs admit that said chauffeur Mariano Capulong possesses an automobile driver's license which, for purposes of identification, we request to be marked as Exhibit A, as a conclusive evidence of his having exercised due diligence.

2. That the defendant Bernardo Castillo is not engaged in any kind of business or industry on or about April 30, 1937, the date of the accident. 3. That the defendant Bernardo Castillo was not riding in the car at the time of the accident, and he did not know that his car was taken by the chauffeur Mariano Capulong. 4. That, by reason of this complaint, the defendant has suffered damages in the sum of P300 in order to prepare his defense. That Fernanda Marquez, that is, the offended party in criminal case No. 7103, was earning at the rate of P1 a day on the date of her death; and that said Fernanda Marquez was only 50 years old when she died. That the co-plaintiff Maria Chomacera was earning at the rate of P1.20 a day at the time she received the injuries mentioned in the above-stated affidavit of Mariano Capulong, and that she incurred for her treatment expenses amounting to P100, as alleged in the complaint, while Fernanda Marquez spent for her burial and funeral the sum of P300, as alleged in the complaint. It should be noted that in said stipulation, there is a provision appearing in paragraph 3 thereof, which reads as follows: That the defendant Bernardo Castillo was not riding in the car at the time of the accident, and he did not know that his car was taken by the chauffeur Mariano Capulong. This fact decides the question because it clearly shows that the accident did not occur in the course of the performance of the duties or service for which said chauffeur Mariano Capulong had been hired. The defendant did not hire him to do as he pleased, using the defendant's car as if it were his own. His duties and service were confined to driving his master's car as the latter ordered him, and the accident did not take place under said circumstances. The subsidiary civil liability of the master, according to the provisions of article 103 of said Revised Penal Code, arises and takes place only when the servant, subordinate or employee commits a punishable criminal act while in the actual performance of his ordinary duties and service, and he is insolvent thereby rendering him incapable of satisfying by himself his own civil liability. The general rule regarding the obligation to repair the damage done, besides the one established in article 103 of the Revised Penal Code, is that he, who by an act or omission causes the damage through his fault or negligence, is the one called upon to repair the same (art. 1902, Civil Code). This rule, which extends only to cases mentioned in articles 1903 to 1910 of said Code, is in no way applicable to the appellant, all the more so because, as the lower court makes clear in its decision, neither was he in his car at the time of the accident for which Mariano Capulong was sentenced to pay an indemnity of P500 to the heirs of the deceased Marquez, nor was he negligent in the selection of his chauffeur, since he hired in his service precisely one who is duly licensed to drive a car. For the foregoing reasons, the appealed judgment is reversed, with the costs de oficio. So ordered. G.R. No. L-62955 December 22, 1987

VIRGILIO OZOA, petitioner, vs. CARIDAD VDA. DE MADULA, HON. CELSO LARGO, etc., and PROVINCIAL SHERIFF OF BUKIDNON,respondents.

NARVASA, J.: In this special civil action of certiorari and prohibition, we are asked by the petitioner to annul and set aside the Order of respondent Judge which denied his appeal- and his motion to recall a writ of execution for the enforcement of his subsidiary civil liability under Article 103 of the Revised Penal Code, i.e., to answer for his employee's own liability arising from the felony of which the latter had been convicted. 1 Petitioner Ozoa was the employer of Policarpio Balatayo, who was convicted by the Court of First Instance of Bukidnon of homicide with serious physical injuries thru reckless imprudence, under an information 2 pertinently reading as follows: That on or about the 9th day of February, 1976, in the evening, at the .. municipality of Libona, province of Bukidnon .. the accused who was the driver of Weapons Carrier truck bearing Plate No. T-528-73 owned by Virgilio Ozoa, did then and there wilfully, unlawfully and feloniously drive fast and operate the said vehicle in a negligent, careless and imprudent manner in disregard of traffic rules and regulations and as a result thereon ran over Arcadio Madula Lagas, inflicting on his person .. (certain specified) injuries .. which resulted in his instantaneous death and inflicting serious physical injuries on Nenito Ayag y Regidor. Balatayo was convicted on the strength of his plea of guilty, which he entered after withdrawing his initial plea of not guilty. 3 He was sentenced to "undergo imprisonment ranging from SIX (6) MONTHS of arresto mayor, as minimum, to THREE (3) YEARS, SIX (6) MONTHS and TWENTYONE (21) DAYS of prision correccional, as maximum." He was further sentenced "to indemnify the heirs of the decreased Arcadio Madula Lagas in the amount of P12,000.00 and Nenito Ayag y Regidor, the amount of P3,000.00 without subsidiary imprisonment in case of insolvency, to suffer the accessory penalties provided by law, and to pay the costs. 4 The judgment of conviction having become final, a writ of execution issued at the instance of the widow of the deceased (Caridad Madula, herein private respondent), for the enforcement of the defendant's civil liability. The writ was however returned unsatisfied by reason of the insolvency of the accused. The widow Madula then moved for the issuance of a writ of execution against the accused's employer, Ozoa. Ozoa opposed the motion. He stated that the widow had executed an "Affidavit of Desistance" acknowledging full satisfaction of civil liability; and a separate civil case "should and must be ventilated .. in order that the Court can acquire jurisdiction over .. (his) person .. so that the employer-employee relationship could be established and to afford .. (him) the opportunity to prove his defense. 5 The Court held a hearing on the motion. It received evidence on the issues, presented by the widowmovants as well as Ozoa. In addition to the fact that execution against the accused Balatayo had been returned unsatisfied on account of his insolvency, not disputed, the Court found other facts to have been adequately proven by the evidence adduced by both parties, to wit:

1) Ozoa was the employer of Balatayo, and was a businessman engaged in the hauling of corn, these being admitted by him in his affidavit marked Exhibit "F". 2) Ozoa promised to pay the widow Madula P6,000 and thus persuaded her to sign an affidavit of desistance (marked Exhibit 1), but this amount was never paid. The only amount in fact given by Ozoa was P1,500.00, which was used to defray the burial expenses. 6 Upon these facts, the Court a quo directed execution against Ozoa. In support of its ruling the Court placed reliance on Article 103, in relation to Article 102, of the Revised Penal Code, declaring the employer subsidiarily responsible for the civil liability of his employee when the latter is insolvent; to Miranda v. Malate Garage, etc., 99 Phil. 670, holding that the conviction of the employee is binding and conclusive upon the employer not only with regard to the civil liability but also as to its amount because the employer's liability is inseparable from and indeed follows that of the employee; and to Pajarito v. Seneris, 87 SCRA 275, holding that in substance and in effect, the employer is a party to the criminal action where his employee's civil liability is adjudged. Ozoa filed a notice of appeal, and a motion to recall the writ of execution. Madula opposed the appeal, and in turn moved for the issuance of an alias writ of execution. By Order dated May 12, 1982, the Trial Court denied Ozoas's appeal and his motion to recall writ. The Court declared that on account of Ozoa's failure to submit an appeal bond and a record on appeal, only a notice of appeal having been filed by him, his appeal had not been perfected within the reglementary period of 30 days, and that, moreover, the correct remedy was not appeal but the special civil action of certiorari. 7 Ozoa moved for reconsideration and for quashal of the execution issued against him. His motion was denied. This order of May 12, 1982 is now challenged by Ozoa before us. He contends that the order should be annulled because tainted by grave abuse of discretion. He argues that 1. An employer may appeal from an order finding him subsidiarily civilly liable in the same criminal proceeding and in the same manner as in appeals in criminal cases. 2. It was error for the Trial Court to deny his appeal for failure on his part to submit a record on appeal and an appeal bond because in appeals in criminal cases, only a notice of appeal need be filed to perfect the appeal; and he did file the requisite notice of appeal within 15 days from notice of the order declaring him subsidiarily liable, i.e., within the period prescribed for appeals in criminal cases. An employer should be allowed to appeal as regards the civil aspect of the criminal case, since a new and different matter is involved, and the judgment declaring him liable can not be deemed to have become final merely because the criminal action has itself become final. 3. It was beyond the power of the Court a quo to issue an alias writ of execution after the perfection of the appeal. The perfection of the appeal causes the Court to lose jurisdiction over the case. To be sure, the correctness of the legal principles cited by the Court a quo cannot be gainsaid. A person criminally liable is also civilly liable; and upon the institution of the criminal action, the civil action for the recovery of the civil liability arising from the crime is also impliedly instituted unless waived, or the filing of a separate action therefor is reserved. 8 The employer is subsidiarily answerable for the adjudicated civil liability ex delito of his employee in the event of the latter's insolvency; and the judgment in the criminal action pronouncing the employee to be also civilly liable is conclusive on the employer not only as to the actuality of that liability but also as to its amount.

But the foregoing statement does not exhaust the entirety of the rules relevant and applicable to the juridical situation under consideration. There is the additional precept, of which sight should not be lost because essential due process, that before the employer's subsidiary liability is exacted, there must be adequate evidence establishing that (1) he is indeed the employer of the convict; (2) that he is engaged in some kind of industry; (3) the crime was committed by the employee in the discharge of his duties; and (4) execution against the employee is unsatisfied. 9 The determination of these issues need not be done in a separate civil action. But a determination there must be, on the basis of evidence that the offended party and the employer may fully and freely present; and this may be done in the same criminal action at which the employee's liability, criminal and civil, has been pronounced. it may be done at a hearing set for that precise purpose, with due notice to the employer, "as part of the proceeding for the execution of the judgment. 10 It goes without saying that the determination thus made as regards the employer's subsidiary civil liability is not conclusive in the sense of being non-reviewable by higher judicial authority. It may be appealed to a higher court at the instance of the aggrieved party-either the offended party or the employer-by writ of error seeking review of questions of fact or mixed questions of fact and law, 11 or through a petition for review on certiorari, limited to a consideration only of questions of law. 12 Or review may be sought by the institution of a special civil action ofcertiorari, upon the theory that the determination was made by the Trial Court without or in excess of its jurisdiction, or with grave abuse of discretion. 13 Now, there is no explicit rule or law governing the situation dealt with in the case at bar, at least as to the precise manner and time in which an appeal may be taken from any adjudgment of an employer's subsidiary civil liability. This is not surprising since the basic proposition itself that adjudication of the employer's subsidiary civil liability need not be done by separate suit against the employer but merely in the same criminal action which resulted in the judgment declaring the employee liable both criminally and civilly has not been laid down by legislation, but by judicial construction of related statutory provisions. A party should not therefore be strictly held to account for any mistake as to the proper mode of appeal in such a situation which, as it were, is yet largely uncharted territory. It does not seem reasonable to apply the rules on appeal in civil actions. The proceeding in question was not after an a civil action, but one considered a part or a continuation of the criminal action. The more logical step then is to apply the corresponding rules in criminal cases, which provide that an appeal is taken simply by filing a notice of appeal within fifteen (15) days from notice or promulgation of the judgment. 14 The private respondent's theory, on the other hand, that this fifteen-day period for appeal should be reckoned from the time the accused pleaded guilty and commenced to serve sentence, on May 17, 1978, and not from the issuance of the Order for the execution of the judgment against Ozoa on May 12, 1982, is obviously incorrect. There is no occasion to speak of enforcing the employer's subsidiary civil liability until and unless it appears that the employee's primary liability cannot in the first instance be satisfied by reason of insolvency. This fact cannot, in the very nature of things, be known until some time after the verdict of conviction shall have become final. And even if it appears prima facie that execution against the employee cannot be satisfied, execution against the employer will not issue as a matter of course. There must first be, as above pointed out, a determination that the convict was in truth in the employ of the employer, that the latter is engaged in some kind of industry, and the employee committed the crime to which civil liability attaches while in the performance of his duties as such. lt is from this Court order embodying that determination that an appeal should be taken; and it is from notice of this order that the 15-day period of appeal must be counted.

The Trial Court's view that the remedy against an order of execution is not appeal but the special civil action ofcertiorari, is not correct either. As already above declared, the appropriate remedy is either an appeal by writ of error or by certiorari, depending on the nature of the questions sought to be raised. Exceptionally, the special civil action of certiorari may be resorted to as a vehicle for review if the claim be of lack or excess of jurisdiction, or the attendance of grave abuse of discretion, in the issuance of the order of execution. Parenthetically, even if the appeal were mistakenly directed to the Court of Appeals despite raising only questions of law, the mistake would not be fatal. The appeal would not be dismissed but referred to the Supreme Court "with a specific and clear statement of the grounds therefor. 15 It was therefore error for the Trial Court to have declined to give due course to Ozoa's appeal. Under ordinary circumstances, this error should suffice to justify reinstatement of Ozoa's appeal and directing its referral to the Court of Appeals in due course. To do so however would only prolong the litigation to no valid purpose, and to the prejudice of the parties entitled to execution of judgment. There is in fact no need for any further proceedings in this case. We have gone over the record quite carefully and are convinced that Ozoa's subsidiary civil responsibility has been duly established by the evidence. That evidence was presented at a hearing at which Ozoa was given opportunity to submit, as he did submit proofs in his behalf. We agree that the facts proven adequately demonstrate the existence of the requisites for holding Ozoa subsidiarily liable as an employer under Article 103 of the Revised Penal Code, specified earlier in this opinion. WHEREFORE, the petition is dismissed. The case is remanded to the Trial Court which is hereby directed forthwith to cause execution against the properties of petitioner Ozoa for the satisfaction of his subsidiary civil liability in accordance with its decision dated May 7, 1978. No pronouncement as to costs. G.R. No. 73928 August 31, 1987 JOSE E. GENSON, petitioner, vs. SPS. EDUARDO ADARLE and SHERLITA MARI-ON, and INTERMEDIATE APPELLATE COURT, respondents.

GUTIERREZ, JR., J.: This is a Petition for review which seeks to set aside the decision in CA-G.R. No. 00783 on the ground that the findings of the respondent Court of Appeals are based on misapprehension of facts and conflict with those of the trial court and that the conclusions drawn therefrom are based on speculations and conjectures. Arturo Arbatin was the successful bidder in the sale at public auction of junk and other unserviceable government property located at the compound of the Highway District Engineer's Office of Roxas City. Private respondent Eduardo Adarle was hired as a laborer by Arbatin to gather and take away scrap iron from the said compound with a daily wage of P12.00 or about 312.00 a month. On September 8, 1979, at 4:00 o'clock in the morning, on a Saturday and a non-working day, while the private respondent was tying a cable to a pile of scrap iron to be loaded on a truck inside the premises of the compound, and while the bucket of the payloader driven by Ramon Buensalido was being raised, the bucket suddenly fell and hit Adarle on the right back portion of his head just below

the nape of his neck. Adarle was rushed to the St. Anthony Hospital, Roxas City. According to the medical certificate issued by the attending physician, the private respondent suffered the following injuries: 1) Comminuted fracture of the vertebral body of 13 with extreme Kyphosis of the segment by x-ray. 2) Cord compression 2nd to the injury with paralysis of the lower extremity, inability to defecate and urinate. (E Exh. A, Exhibits for the plaintiff-appellant, Original Records.) The medical certificate also reported that: The patient recovered the use of his urinary bladder and was able to defecate 2 months after surgery. He is paralyzed from the knee down to his toes. He can only sit on a wheel chair. The above residual damage is permanent 2nd to the injury incurred by Mr. Adarle, he is still confined in the Hospital. (idem) While still in the hospital, the private respondent instituted the action below for damages against Arbatin, his employer; Buensalido, the payloader operator; Candelario Marcelino, the civil engineer; and petitioner, the Highway District Engineer. During the trial on the merits, the petitioner put up the defense that he had no knowledge of or participation in the accident and that, when it happened, he was not present in the government compound. Apart from the fact that it was a Saturday and a non-working day, he was in Iloilo. As part of his evidence, the petitioner presented a memorandum directed to a certain Mr. Orlando Panaguiton ordering the latter to take charge of the district until his return (Exh. 1). The trial court found that, with the exception of the petitioner, all of the defendants were present at the Highway's compound when the accident occurred. However, it still adjudged the petitioner liable for damages because the petitioner was supposed to know what his men do with their government equipment within an area under his supervision. Thus, on January 19, 1982, the trial court rendered a decision finding all the defendants liable for damages under Articles 1172 and 2176 of the New Civil Code. The dispositive portion of the decision reads: WHEREFORE, this court orders the defendants to pay to plaintiff the amounts stated in the complainant's prayer as follows: Ordering the defendants jointly and severally to pay the plaintiff the sum of 312.00 monthly from September 8, 1979 until his release from the hospital. Ordering the defendants jointly and severally to pay the plaintiff the sum of P7,410.63 for hospital expenses up to January 14, 1980 and an additional amount for further hospitalization until the release of plaintiff from the hospital; Ordering the defendants jointly and severally to pay the plaintiff the sum of at least P100,000.00 as actual and compensatory damages, considering that plaintiff Eduardo Adarle is totally incapacitated for any employment for life;

Ordering the defendants jointly and severally to pay the plaintiff the sum of P20,000.00 as moral damages and another sum for exemplary damages which we leave to the sound discretion of the Honorable Court; Ordering the defendants jointly and severally to pay the plaintiff the sum of P5,000.00 as attorney's fees. (pp. 129- 130, Original Records). The petitioner appealed to the Intermediate Appellate Court which affirmed the decision of the trial court and further ordered the defendants to pay P5,000.00 exemplary damages. Defendant Candelario Marcelino was, however, absolved from liability. In its decision, the appellate court ruled: That payloader owned by the Government, as found by the lower court, should not have been operated that Saturday, September 8, 1979, a Saturday, a non-working holiday. There is no official order from the proper authorities authorizing Arbatin and plaintiff to work and Buensalido to operate the payloader on that day inside the Highway compound. Thereabouts, we can logically deduce that Arbatin and plaintiff went to the compound to work with the previous knowledge and consent of Highway District Engineer Jose E. Genson. And allowed him, probably upon the request of Arbatin. We have noted that Genson testified that his office does not authorize work on Saturdays. Genson testified that he was in Iloilo from September 9 and 10, 1979. The accident occurred on September 8, in the morning. In his answer, Genson did not allege his presence in Iloilo on September 9 and 10 ... . We fully concur with the lower court's conclusions regarding the physical presence of appellants inside the compound on that fateful day, pursuant to a previous understanding with Arbatin for plaintiff to work on the scrap iron and for Buensalido to operate the payloader inside the compound. Arbatin and plaintiff would not go to the compound on that Saturday, if there was no previous understanding with Genson and Buensalido. The liability of Genson is based on fault, intentional and voluntary or negligent (Eleano v. Hill, 77 SCRA 106; Jimena v. Lincallo, 63 O.G. 11,15, 8 C. A.R. 2567). He gave permission to Arbatin, plaintiff and Buensalido to work on Saturday, a nonworking day, in contravention of his office' rules and regulations outlawing work on Saturdays.. (pp. 29-30, Rollo) In this present petition, the petitioner contends that the appellate court committed a palpable error when it ruled that the petitioner was present when the accident happened and that he had given permission to the other defendants to work on a Saturday, a non-working day. The petitioner argues that considering these were the facts relied upon by the said court in holding that he was negligent and thus liable for damages, such a conclusion, is without basis. The petitioner further contends that the appellate court erred in not holding that the suit against the petitioner was, in effect, a suit against the government and, therefore, should be dismissed under the principle of non-suability of the state.

As regards the petitioner's second contention, we hold that the petitioner's Identification as the Highway District Engineer in the complaint filed by the private respondent did not result in the said complaint's becoming a suit against the government or state. In Belizar v. Brazas, (2 SCRA 526), we ruled that "the fact that the duties and positions of the defendants are indicated does not mean that they are being sued in their official capacities, especially as the present action is not one against the Government." Furthermore, the accident in the case at bar happened on a non-working day and there was no showing that the work performed on that day was authorized by the government. While the equipment used belongs to the Government, the work was private in nature, for the benefit of a purchaser of junk. As we have held in the case of Republic v. Palacio (23 SCRA 899,906). xxx xxx xxx the ISU liability thus arose from tort and not from contract, and it is a well-entrenched rule in this jurisdiction, embodied in Article 2180 of the Civil Code of the Philippines, that the State is liable only for torts caused by its special agents, specially commissioned to carry out the acts complained of outside of such agent's regular duties (Merritt v. Insular Government, supra; Rosete v. Auditor General, 81 Phil. 453) There being no proof that the making of the tortious inducement was authorized, neither the State nor its funds can be made liable therefor. Therefore, the defense of the petitioner that he cannot be made liable under the principle of nonsuability of the state cannot be sustained. With regard to the main contention of the petitioner that the appellate court based its conclusions on an erroneous finding of fact, we agree with him that the appellate court's finding that he was present within the premises when the accident happened is not supported by evidence indisputably showing that he was indeed there. Since the evidence fails to establish petitioner Genson's presence when the payloader's bucket fell on the head of Mr. Adarle, any liability on his part would be based only on his alleged failure to exercise proper supervision over his subordinates (See Umali v. Bacani, 69 SCRA 263, 267-268). According to the trial court, Mr. Genson authorized work on a Saturday when no work was supposed to be done. It stated that the petitioner should know what his men do with their government equipment and he should neither be lax nor lenient in his supervision over them. The petitioner contends that: 1. No evidence on record exists that Genson gave authority to Adarle and Arbatin, either verbally or in writing, to enter the work inside the Highways Compound on September 8, 1979; 2. Genson never knew or met Arbatin until the trial of the case. This fact was never denied by Arbatin nor rebutted by Adarle. How then could Genson have ordered or allowed Arbatin to enter the Highways Compound with Adarle? 3. Adarle himself repeatedly admitted that Arbatin, his employer, gave him the instructions to enter the compound, thus:

Q. Now particularly on September 8, 1979, did Arbatin ask you to go to the compound in the Highway? A. Yes sr. Q. Are you sure of that? A. Yes, sir. Q. Where did he say that to you? A. We went to the Highway compound for many times already and that was the time when I met the incident. Q. The particular day in question September 8. 1979, did you see Arturo Arbatin and he asked you to go the compound on that day? A. That date was included on the first day when "he instructed us to gather scrap ironuntil that work could be finished." (pp. 25-26, tsn., October 10, 1980) (Emphasis supplied) Q. Who told you to work there? A. "Through the instruction of Arturo Arbatin" (pp. 32, tsn., Oct. 10, 1980) (Emphasis supplied) (pp. 12-13, Rollo). Insofar as work on a Saturday is concerned, and assuming Mr. Genson verbally allowed it, we see nothing wrong in the petitioner's authorizing work on that day. As a matter of fact, it could even be required that the hauling of junk and unserviceable equipment sold at public auction must be done on non-working days. The regular work of the District Engineer's office would not be disturbed or prejudiced by a private bidder bringing in his trucks and obstructing the smooth flow of traffic and the daily routine within the compound. Obviously, it would also be safer for all concerned to effect the clearing of the junk pile when everything is peaceful and quiet. There is no showing from the records that it is against regulations to use government cranes and payloaders to load items sold at public auction on the trucks of the winning bidder. The items were formerly government property. Unless the contract specifies otherwise, it may be presumed that all the parties were in agreement regarding the use of equipment already there for that purpose. Of course, it would be different if the junk pile is in a compound where there is no equipment for loading or unloading and the cranes or payloaders have to be brought there. There is likewise no sufficient basis for the "master-servant" doctrine in tort law to apply. Buensalido was not working overtime as a government employee. It is doubtful if the district engineer can be considered an "employer" for purposes of tort liability who may be liable even if he was not there. No evidence was presented to show that an application for overtime work or a claim for overtime pay from the district engineer's office was ever filed. It is more logical to presume that Buensalido, the operator of the payloader, was trying to earn a little money on the side from the junk buyer and that his presence in the compound on that Saturday was a purely private arrangement. From the records of this case, we are not disposed to rule that a supervisor who tolerates his subordinates to moonlight on a non-working day in their office premises can be held liable for everything that happens on that day. It would have been preferable if Mr. Arbatin brought his own payloader

operator and perhaps, his own equipment but we are not dealing with sound office practice in this case. The issue before us is subsidiary liability for tort comitted by a government employee who is moonlighting on a non-working day. This Court ruled in Dumlao v. Court of Appeals (114 SCRA 247, 251): Nevertheless, it is a well-settled principle of law that a public official may be liable in his personal private capacity for whatever damage he may have caused by his act done with malice and in bad faith, (Mindanao realty Corp. v. Kintanar, 6 SCRA 814) or beyond the scope of his authority or jurisdiction. (the Philippine Racing Club v. Bonifacio, G.R. No. L-11844, August 31, 1960) The question, therefore, is whether petitioner did act in any of the manner aforesaid. Petitioner contends that, contrary to the holding of the respondent Court of Appeals, he was not sued in his personal capacity, but in his official capacity. Neither was malice or bad faith alleged against him in the complaint, much less proven by the evidence, as the respondent court made no such finding of malice or bad faith. Examining the allegations of the complaint and reviewing the evidence it would indeed be correct to say that petitioner was sued in his official capacity, and that the most that was imputed to him is act of culpable neglect, inefficiency and gross indifference in the performance of his official duties. Verily, this is not imputation of bad faith or malice, and what is more was not convincingly proven. According to the respondent court, "Genson and Buensalido divested themselves of their public positions and privileges to accomodate an acquaintance or probably for inordinate gain." (p. 31, Rollo). There is no showing from the records that Genson received anything which could be called "inordinate gain." It is possible that he permitted work on a Saturday to accomodate an acquaintance but it is more plausible that he simply wanted to clear his compound of junk and the best time for the winning bidder to do it was on a non-working day. At any rate, we see no malice, bad faith, or gross negligence on the part of Genson to hold him liable for the acts of Buensalido and Arbatin. WHEREFORE, the decision of the Intermediate Appellate Court is hereby REVERSED and SET ASIDE. The complaint against Jesus Genson is DISMISSED. SO ORDERED. G.R. No. 71137 October 5, 1989 SPOUSES FEDERICO FRANCO and FELICISIMA R. FRANCO, petitioners, vs. INTERMEDIATE APPELLATE COURT, ANTONIO REYES, MRS. SUSAN CHUAY and LOLITA LUGUErespondents.

FERNAN, C.J.:

The instant petition for review of a decision of the Court of Appeals deals mainly with the nature of an employer's liability for his employee's negligent act. At about 7:30 in the evening of October 18, 1974, Macario Yuro swerved the northbound Franco Bus with Plate No. XY320-PUB he was driving to the left to avoid hitting a truck with a trailer parked facing north along the cemented pavement of the MacArthur Highway at Barrio Talaga, Capas Tarlac, thereby taking the lane of an incoming Isuzu Mini Bus bearing Plate No. YL-735 being driven by one Magdaleno Lugue and making a collision between the two (2) vehicles an unavoidable and disastrous eventuality. Dragged fifteen (15) meters from the point of impact (midway the length of the parked truck with trailer), the mini bus landed right side down facing south in the canal of the highway, a total wreck. The Franco Bus was also damaged but not as severely. The collision resulted in the deaths of the two (2) drivers, Macario Yuro and Magdaleno Lugue, and two (2) passengers of the mini bus, Romeo Bue and Fernando Chuay. Consequently, Antonio Reyes, the registered owner of the Isuzu Mini Bus, Mrs. Susan Chuay, the wife of victim Fernando Chuay, and Mrs. Lolita Lugue, the wife of driver-victim Magdaleno Lugue, filed an action for damages through reckless imprudence before the Court of First Instance of Pampanga in Angeles City, Branch IV, docketed as Civil Case No. 2154 against Mr. & Mrs. Federico Franco, the owners and operators of the Franco Transportation Company. The complaint alleged that: (a) the recklessness and imprudence of the Franco Bus driver caused the collision which resulted in his own death and that of the mini bus driver and two (2) other passengers thereof; (b) that as a consequence of the vehicular mishap, the Isuzu Mini Bus became a total wreck resulting in actual damages amounting to P50,000.00 and the loss of an average net income of P120.00 daily or P3,600.00 monthly multiplied by a minimum of one more year of serviceability of said mini bus or P40,200.00; and, (c) that in view of the death of the three (3) passengers aforementioned, the heirs of each should be awarded a minimum of P12,000.00 and the expected average income of P6,000.00 each of the driver and one of the passengers and P12,000.00 of the Chinese businessman passenger. In answer to the complaint, defendants set up, among others, the affirmative defense that as owners and operators of the Franco Transportation Company, they exercised due diligence in the selection and supervision of all their employees, including the deceased driver Macario Yuro. Said defense was, however, rejected by the trial court in its decision 1 dated May 17, 1978, for the reason that the act of the Franco Bus driver was a negligent act punishable by law resulting in a civil obligation arising from Article 103 of the Revised Penal Code and not from Article 2180 of the Civil Code. It said: "This is a case of criminal negligence out of which civil liability arises, and not a case of civil negligence and the defense of having acted like a good father of a family or having trained or selected the drivers of his truck is no defense to avoid civil liability." 2On this premise, the trial court ruled as follows: WHEREFORE, premises considered, judgment is hereby rendered in favor of the plaintiffs, Antonio Reyes, Lolita Lugue, and Susan Chuay, and against the defendants Mr. and Mrs. Federico Franco, ordering the latter: (1) To pay Antonio Reyes, actual and compensatory damages in the amount of P90,000.00 for the Isuzu Mini Bus; (2) To pay Lolita Lugue, the widow of Magdaleno Lugue, actual and compensatory damages in the total sum of P18,000.00;

(3) To pay Susan Chuay, the widow of Fernando Chuay, actual and compensatory damages in the total sum of P24,000.00; and (4) To pay attorney's fee in the amount of P5.000.00; All with legal interests from the filing of this suit on November 11, 1974 until paid; and the costs of this suit.
SO ORDERED. 3

On appeal by herein petitioners as defendants-appellants, respondent appellate court, agreeing with the lower court, held that defendants-appellants' driver who died instantly in the vehicular collision, was guilty of reckless or criminal imprudence punishable by law in driving appellants' bus; that the civil obligation of the appellants arises from Article 103 of the Revised Penal Code resulting in the subsidiary liability of the appellants under the said provisions, 4 that the case subject of appeal is one involving culpable negligence out of which civil liability arises and is not one of civil negligence; 5 and that there is nothing in Articles 102 and 103 of the Revised Penal Code which requires a prior judgment of conviction of the erring vehicle driver and his obligation to pay his civil liability before the said provisions can be applied. 6 Respondent appellate court increased the award of damages granted by the lower court as follows: WHEREFORE, the decision appealed from is hereby modified as follows: 1. To pay Susan Chuay, widow of Fernando Chuay, the sum of P30,000.00 for the latter's death and P112,000.00 for loss of earning capacity; 2. To pay Lolita Lugue, widow of Magdaleno Lugue, the sum of P30,000.00 for the latter's death and P62,000.00 for loss of earning capacity. The rest of the judgment appealed from is affirmed. Costs against defendants-appellants.
SO ORDERED. 7

On April 1, 1985, petitioners filed a motion for reconsideration of the aforesaid respondent appellate court's decision dated January 2, 1985 but the same was denied on May 13, 1985. Hence, the instant petition raising two (2) legal questions: first, whether the action for recovery of damages instituted by herein private respondents was predicated upon crime or quasi-delict; and second, whether respondent appellate court in an appeal filed by the defeated parties, herein petitioners, may properly increase the award of damages in favor of the private respondents Chuay and Lugue, prevailing parties in the lower court, who did not appeal said court's decision. Petitioners contend that the allegations in paragraph 9 of the Amended Complaint 8 of herein private respondents as plaintiffs in Civil Case No. 2154 unequivocally claim that the former as the employers of Macario Yuro, the driver of the Franco Bus who caused the vehicular mishap, are jointly and severally liable to the latter for the damages suffered by them which thus makes Civil Case No. 2154 an action predicated upon a quasi-delict under the Civil Code subject to the defense that the employer exercised all the diligence of a good father of a family in the selection and supervision of their employees. We find merit in this contention. Distinction should be made between the subsidiary liability of the employer under the Revised Penal Code and the employer's primary liability under the Civil Code

which is quasi-delictual or tortious in character. The first type of liability is governed by Articles 102 and 103 of the Revised Penal Code which provide as follows: Art. 102. Subsidiary civil liability of innkeepers, tavern-keepers and proprietors of establishments. In default of the persons criminally liable, innkeepers, tavernkeepers, and any other persons or corporations shall be civilly liable for crimes committed in their establishments, in all cases where a violation of municipal ordinances or some general or special police regulations 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 from guests lodging therein, 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 deposits 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 and vigilance over such goods. No liability shall attach in case of robbery with violence 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 the servants, pupils, workmen, apprentices, or employees in the discharge of their duties; while the second kind is governed by the following provisions of the Civil Code: Art. 2176. Whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay for the damage done. Such fault or negligence, if there is no pre-existing contractual relation between the parties is called a quasidelict and is governed by the provisions of this Chapter. 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. Art. 2180. The obligations imposed by article 2176 is demandable not only for one's own acts or omissions, but also for those of persons for whom one is responsible. xxx xxx xxx Employers shall be liable for the damages caused by their employees and household helpers acting within the scope of their assigned tasks, even though the former are not engaged in any business or industry, xxx xxx xxx The responsibility treated of in this article shall cease when the persons herein mentioned prove that they observed all the diligence of a good father of a family to prevent damage.

Under Article 103 of the Revised Penal Code, liability originates from a delict committed by the employee who is primarily liable therefor and upon whose primary liability his employer's subsidiary liability is to be based. Before the employer's subsidiary liability may be proceeded against, it is imperative that there should be a criminal action whereby the employee's criminal negligence or delict and corresponding liability therefor are proved. If no criminal action was instituted, the employer's liability would not be predicated under Article 103. 9 In the case at bar, no criminal action was instituted because the person who should stand as the accused and the party supposed to be primarily liable for the damages suffered by private respondents as a consequence of the vehicular mishap died. Thus, petitioners' subsidiary liability has no leg to stand on considering that their liability is merely secondary to their employee's primary liability. Logically therefore, recourse under this remedy is not possible. On the other hand, under Articles 2176 and 2180 of the Civil Code, liability is based on culpa aquiliana which holds the employer primarily liable for tortious acts of its employees subject, however, to the defense that the former exercised all the diligence of a good father of a family in the selection and supervision of his employees. Respondent appellate court relies on the case of Arambulo, supra, where it was held that the defense of observance of due diligence of a good father of a family in the selection and supervision of employees is not applicable to the subsidiary liability provided in Article 20 of the Penal Code (now Article 103 of the Revised Penal Code). By such reliance, it would seem that respondent appellate court seeks to enforce the subsidiary civil liability of the employer without a criminal conviction of the party primarily liable therefor. This is not only erroneous and absurd but is also fraught with dangerous consequences. It is erroneous because the conviction of the employee primarily liable is a condition sine qua non for the employer's subsidiary liability 10 and, at the same time, absurd because we will be faced with a situation where the employer is held subsidiarily liable even without a primary liability being previously established. It is likewise dangerous because, in effect, the employer's subsidiary liability would partake of a solidary obligation resulting in the law's amendment without legislative sanction. The Court in the aforecited M.D. Transit case went further to say that there can be no automatic subsidiary liability of defendant employer under Article 103 of the Revised Penal Code where his employee has not been previously criminally convicted. Having thus established that Civil Case No. 2154 is a civil action to impose the primary liability of the employer as a result of the tortious act of its alleged reckless driver, we confront ourselves with the plausibility of defendants-petitioners' defense that they observed due diligence of a good father of a family in the selection and supervision of their employees. On this point, the appellate court has unequivocally spoken in affirmation of the lower court's findings, to wit:
Anyway, a perusal of the record shows that the appellants were not able to establish the defense of a good father of a family in the supervision of their bus driver. The evidence presented by the appellants in this regard is purely self-serving. No independent evidence was presented as to the alleged supervision of appellants' bus drivers, especially with regard to driving habits and reaction to actual traffic conditions. The appellants in fact admitted that the only kind of supervision given the drivers referred to the running time between the terminal points of the line (t.s.n., September 16, 1976, p. 21). Moreover, the appellants who ran a fleet of 12 buses plying the Manila-Laoag line, have only two inspectors whose duties were only ticket inspection. There is no evidence that they are really safety inspectors. 11

Basically, the Court finds that these determinations are factual in nature. As a painstaking review of the evidence presented in the case at bar fails to disclose any evidence or circumstance of note sufficient to overrule said factual findings and conclusions, the Court is inclined to likewise reject petitioners' affirmative defense of due diligence. The wisdom of this stance is made more apparent by the fact that the appellate court's conclusions are based on the findings of the lower court which is in a better position to evaluate the testimonies of the witnesses during trial. As a rule, this Court respects the factual findings of the appellate and trial courts and accord them a certain measure of finality. 12 Consequently, therefore, we find petitioners liable for the damages claimed pursuant to their primary liability under the Civil Code. On the second legal issue raised in the instant petition, we agree with petitioners' contention that the Intermediate Appellate Court (later Court of Appeals) is without jurisdiction to increase the amount of damages awarded to private respondents Chuay and Lugue, neither of whom appealed the decision of the lower court. While an appellee who is not also an appellant may assign error in his brief if his purpose is to maintain the judgment on other grounds, he cannot ask for modification or reversal of the judgment or affirmative relief unless he has also appealed. 13 For failure of plaintiffs-appellees, herein private respondents, to appeal the lower court's judgment, the amount of actual damages cannot exceed that awarded by it. 14 Furthermore, the records 15 show that plaintiffs-private respondents limited their claim for actual and compensatory damages to the supposed average income for a period of one (1) year of P6,000.00 for the driver Magdaleno Lugue and P12,000.00 for the Chinese businessman Fernando Chuay. We feel that our award should not exceed the said amounts . 16 However, the increase in awards for indemnity arising from death to P30,000.00 each remains, the same having been made in accordance with prevailing jurisprudence decreeing such increase in view of the depreciated Philippine currency. 17 WHEREFORE, the decision of the Court of Appeals is hereby modified decreasing the award to private respondents of actual and compensatory damages for loss of average income for the period of one year to P6,000.00 for the deceased Magdaleno Lugue and P12,000.00 for the deceased Fernando Chuay. The rest of the judgment appealed from is hereby affirmed. Costs against the private respondents. This decision is immediately executory. SO ORDERED. G.R. No. 108017 April 3, 1995 MARIA BENITA A. DULAY, in her own behalf and in behalf of the minor children KRIZTEEN ELIZABETH, BEVERLY MARIE and NAPOLEON II, all surnamed DULAY, petitioners, vs. THE COURT OF APPEALS, Former Eighth Division, HON. TEODORO P. REGINO, in his capacity as Presiding Judge of the Regional Trial Court National Capital Region, Quezon City, Br. 84, SAFEGUARD INVESTIGATION AND SECURITY CO., INC., and SUPERGUARD SECURITY CORPORATION, respondents.

BIDIN, J.: This petition for certiorari prays for the reversal of the decision of the Court of Appeals dated October 29, 1991 in CA-G.R. CV No. 24646 which affirmed the order of the Regional Trial Court dismissing

Civil Case No. Q-89-1751, and its resolution dated November 17, 1991 denying herein, petitioner's motion for reconsideration. The antecedent facts of the case are as follows: On December 7, 1988, an altercation between Benigno Torzuela and Atty. Napoleon Dulay occurred at the "Big Bang Sa Alabang," Alabang Village, Muntinlupa as a result of which Benigno Torzuela, the security guard on duty at the said carnival, shot and killed Atty. Napoleon Dulay. Herein petitioner Maria Benita A. Dulay, widow of the deceased Napoleon Dulay, in her own behalf and in behalf of her minor children, filed on February 8, 1989 an action for damages against Benigno Torzuela and herein private respondents Safeguard Investigation and Security Co., Inc., ("SAFEGUARD") and/or Superguard Security Corp. ("SUPERGUARD"), alleged employers of defendant Torzuela. The complaint, docketed as Civil Case No. Q-89-1751 among others alleges the following: 1. . . . Defendants SAFEGUARD INVESTIGATION AND SECURITY CO., INC., (Defendant Safeguard) and SUPERGUARD SECURITY CORPORATION (Defendant Superguard) are corporations duly organized and existing in accordance with Philippine laws, with offices at 10th Floor, Manufacturers Building, Inc., Plaza Santa Cruz, Manila. They are impleaded as alternative defendants for, while the former appears to be the employer of defendant BENIGNO TORZUELA (defendant TORZUELA), the latter impliedly acknowledged responsibility for the acts of defendant TORZUELA by extending its sympathies to plaintiffs. Defendant BENIGNO TORZUELA is of legal age, an employee of defendant SAFEGUARD and/or defendant SUPERGUARD and, at the time of the incident complained of, was under their control and supervision. . . . 3. On December 7, 1988 at around 8:00 a.m., defendant TORZUELA, while he was on duty as security guard at the "Big Bang sa Alabang," Alabang Village, Muntinlupa, Metro Manila shot and killed NAPOLEON V. DULAY with a .38 caliber revolver belonging to defendant SAFEGUARD, and/or SUPERGUARD (per Police Report dated January 7, 1989, copy attached as Annex A); 4. The incident resulting in the death of NAPOLEON V. DULAY was due to the concurring negligence of the defendants. Defendant TORZUELA'S wanton and reckless discharge of the firearm issued to him by defendant SAFEGUARD and/or SUPERGUARD was the immediate and proximate cause of the injury, while the negligence of defendant SAFEGUARD and/or SUPERGUARD consists in its having failed to exercise the diligence of a good father of a family in the supervision and control of its employee to avoid the injury. xxx xxx xxx (Rollo, pp. 117-118)

Petitioners prayed for actual, compensatory, moral and exemplary damages, and attorney's fees. The said Civil Case No. Q-89-1751 was raffled to Branch 84 of the Regional Trial Court of Quezon City, presided by respondent Judge Teodoro Regino. On March 2, 1989, private respondent SUPERGUARD filed a Motion to Dismiss on the ground that the complaint does not state a valid cause of action. SUPERGUARD claimed that Torzuela's act of shooting Dulay was beyond the scope of his duties, and that since the alleged act of shooting was committed with deliberate intent (dolo), the civil liability therefor is governed by Article 100 of the Revised Penal Code, which states: Art. 100. Civil liability of a person guilty of a felony. Every person criminally liable for a felony is also civilly liable. Respondent SUPERGUARD further alleged that a complaint for damages based on negligence under Article 2176 of the New Civil Code, such as the one filed by petitioners, cannot lie, since the civil liability under Article 2176 applies only to quasi-offenses under Article 365 of the Revised Penal Code. In addition, the private respondent argued that petitioners' filing of the complaint is premature considering that the conviction of Torzuela in a criminal case is a condition sine qua non for the employer's subsidiary liability (Rollo, p. 55-59). Respondent SAFEGUARD also filed a motion praying that it be excluded as defendant on the ground that defendant Torzuela is not one of its employees (Rollo, p. 96). Petitioners opposed both motions, stating that their cause of action against the private respondents is based on their liability under Article 2180 of the New Civil Code, which provides: Art. 2180. The obligation imposed by Article 2176 is demandable not only for one's own acts or omissions, but also for those of persons for whom one is responsible. xxx xxx xxx Employers shall be liable for the damages caused by their employees and household helpers acting within the scope of their assigned tasks, even though the former are not engaged in any business or an industry. xxx xxx xxx (Emphasis supplied) Petitioners contended that a suit against alternative defendants is allowed under Rule 3, Section 13 of the Rules of Court. Therefore, the inclusion of private respondents as alternative defendants in the complaint is justified by the following: the Initial Investigation Report prepared by Pat. Mario Tubon showing that Torzuela is an employee of SAFEGUARD; and through overt acts, SUPERGUARD extended its sympathies to petitioners (Rollo, pp. 64 and 98). Meanwhile, an Information dated March 21, 1989 charging Benigno Torzuela with homicide was filed before the Regional Trial Court of Makati and was docketed as Criminal Case No. 89-1896. On April 13, 1989, respondent Judge Regino issued an order granting SUPERGUARD'S motion to dismiss and SAFEGUARD'S motion for exclusion as defendant. The respondent judge held that the complaint did not state facts necessary or sufficient to constitute a quasi-delict since it does not

mention any negligence on the part of Torzuela in shooting Napoleon Dulay or that the same was done in the performance of his duties. Respondent judge ruled that mere allegations of the concurring negligence of the defendants (private respondents herein) without stating the facts showing such negligence are mere conclusions of law (Rollo, p. 106). Respondent judge also declared that the complaint was one for damages founded on crimes punishable under Articles 100 and 103 of the Revised Penal Code as distinguished from those arising from, quasi-delict. The dispositive portion of the order dated April 13, 1989 states: WHEREFORE, this Court holds that in view of the material and ultimate facts alleged in the verified complaint and in accordance with the applicable law on the matter as well as precedents laid down by the Supreme Court, the complaint against the alternative defendants Superguard Security Corporation and Safeguard Investigation and Security Co., Inc., must be and (sic) it is hereby dismissed. (Rollo, p. 110) The above order was affirmed by the respondent court and petitioners' motion for reconsideration thereof was denied. Petitioners take exception to the assailed decision and insist that quasi-delicts are not limited to acts of negligence but also cover acts that are intentional and voluntary, citing Andamo v. IAC (191 SCRA 195 [1990]). Thus, petitioners insist that Torzuela' s act of shooting Napoleon Dulay constitutes a quasi-delict actionable under Article 2176 of the New Civil Code. Petitioners further contend that under Article 2180 of the New Civil Code, private respondents are primarily liable for their negligence either in the selection or supervision of their employees. This liability is independent of the employee's own liability for fault or negligence and is distinct from the subsidiary civil liability under Article 103 of the Revised Penal Code. The civil action against the employer may therefore proceed independently of the criminal action pursuant to Rule 111 Section 3 of the Rules of Court. Petitioners submit that the question of whether Torzuela is an employee of respondent SUPERGUARD or SAFEGUARD would be better resolved after trial. Moreover, petitioners argue that Torzuela's act of shooting Dulay is also actionable under Article 33 of the New Civil Code, to wit: Art. 33. In cases of defamation, fraud, and physical injuries, a civil action for damages, entirely separate and distinct from the criminal action, may be brought by the injured party. Such civil action shall proceed independently of the criminal prosecution, and shall require only a preponderance of evidence. (Emphasis supplied) In the same vein, petitioners cite Section 3, Rule 111 of the Rules of Court which provides: Rule 111. . . . . Sec. 3. When civil action may proceed independently In the cases provided for in Articles 32, 33, 34 and 2176 of the Civil Code of the Philippines, the independent civil action which has been reserved may be brought by the offended party, shall proceed independently of the criminal action, and shall require only a preponderance of evidence. (Emphasis supplied) The term "physical injuries" under Article 33 has been held to include consummated, frustrated and attempted homicide. Thus, petitioners maintain that Torzuela's prior conviction is unnecessary since the civil action can proceed independently of the criminal action. On the other hand, it is the private

respondents' argument that since the act was not committed with negligence, the petitioners have no cause of action under Articles 2116 and 2177 of the New Civil Code. The civil action contemplated in Article 2177 is not applicable to acts committed with deliberate intent, but only applies to quasioffenses under Article 365 of the Revised Penal Code. Torzuela's act of shooting Atty. Dulay to death, aside from being purely personal, was done with deliberate intent and could not have been part of his duties as security guard. And since Article 2180 of the New Civil Code covers only: acts done within the scope of the employee's assigned tasks, the private respondents cannot be held liable for damages. We find for petitioners. It is undisputed that Benigno Torzuela is being prosecuted for homicide for the fatal shooting of Napoleon Dulay. Rule 111 of the Rules on Criminal Procedure provides: Sec. 1. Institution of criminal and civil actions. When a criminal action is instituted, the civil action for the recovery of civil liability is impliedly instituted with the criminal action, unless the offended party waives the civil action , reserves his right to institute it separately or institutes the civil action prior to the criminal action. Such civil action includes recovery of indemnity under the Revised Penal Code, and damages under Articles 32, 33, 34, and 2176 of the Civil Code of the Philippines arising from the same act or omission of the accused. (Emphasis supplied) It is well-settled that the filing of an independent civil action before the prosecution in the criminal action presents evidence is even far better than a compliance with the requirement of express reservation (Yakult Philippines v. Court of Appeals, 190 SCRA 357 [1990]). This is precisely what the petitioners opted to do in this case. However, the private respondents opposed the civil action on the ground that the same is founded on a delict and not on a quasi-delict as the shooting was not attended by negligence. What is in dispute therefore is the nature of the petitioner's cause of action. The nature of a cause of action is determined by the facts alleged in the complaint as constituting the cause of action (Republic v. Estenzo, 158 SCRA 282 [1988]). The purpose of an action or suit and the law to govern it is to be determined not by the claim of the party filing the action, made in his argument or brief, but rather by the complaint itself, its allegations and prayer for relief. (De Tavera v. Philippine Tuberculosis Society, 112 SCRA 243 [1982]). An examination of the complaint in the present case would show that the plaintiffs, petitioners herein, are invoking their right to recover damages against the private respondents for their vicarious responsibility for the injury caused by Benigno Torzuela's act of shooting and killing Napoleon Dulay, as stated in paragraphs 1 and 2 of the complaint. Article 2176 of the New Civil Code provides: Art. 2176. Whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay for the damage done. Such fault or negligence, if there is no pre-existing contractual relation between the parties is called a quasidelict and is governed by the provisions of this Chapter. Contrary to the theory of private respondents, there is no justification for limiting the scope of Article 2176 of the Civil Code to acts or omissions resulting from negligence. Well-entrenched is the doctrine that article 2176 covers not only acts committed with negligence, but also acts which are voluntary and intentional. As far back as the definitive case of Elcano v. Hill (77 SCRA 98 [1977]), this Court already held that:

. . . Article 2176, where it refers to "fault or negligence," covers not only acts "not punishable by law" but also acts criminal in character; whether intentional and voluntary or negligent. Consequently, a separate civil action against the offender in a criminal act, whether or not he is criminally prosecuted and found guilty or acquitted, provided that the offended party is not allowed, if he is actually charged also criminally, to recover damages on both scores, and would be entitled in such eventuality only to the bigger award of the two, assuming the awards made in the two cases vary. In other words, the extinction of civil liability referred to in Par. (e) of Section 3, Rule 111, refers exclusively to civil liability founded on Article 100 of the Revised Penal Code, whereas the civil liability for the same act considered as quasidelict only and not as a crime is not extinguished even by a declaration in the criminal case that the criminal act charged has not happened or has not been committed by the accused. Briefly stated, We here hold, in reiteration of Garcia, that culpa aquiliana includes voluntary and negligent acts which may be punishable by law. (Emphasis supplied) The same doctrine was echoed in the case of Andamo v. Intermediate Appellate Court (191 SCRA 195 [1990]), wherein the Court held: Article 2176, whenever it refers to "fault or negligence," covers not only acts criminal in character, whether intentional and voluntary or negligent. Consequently, a civil action lies against the offender in a criminal act, whether or not he is prosecuted or found guilty or acquitted, provided that the offended party is not allowed, (if the tortfeasor is actually also charged 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. [citing Virata v. Ochoa, 81 SCRA 472] (Emphasis supplied) Private respondents submit that the word "intentional" in the Andamo case is inaccurate obiter, and should be read as "voluntary" since intent cannot be coupled with negligence as defined by Article 365 of the Revised Penal Code. In the absence of more substantial reasons, this Court will not disturb the above doctrine on the coverage of Article 2176. Private respondents further aver that Article 33 of the New Civil Code applies only to injuries intentionally committed pursuant to the ruling in Marcia v. CA (120 SCRA 193 [1983]), and that the actions for damages allowed thereunder are ex-delicto. However, the term "physical injuries" in Article 33 has already been construed to include bodily injuries causing death (Capuno v. Pepsi-Cola Bottling Co. of the Philippines, 121 Phil. 638 [1965); Carandang v. Santiago, 97 Phil. 94 [1955]). It is not the crime of physical injuries defined in the Revised Penal Code. It includes not only physical injuries but also consummated, frustrated, and attempted homicide (Madeja v. Caro, 126 SCRA 293 [1983]). Although in the Marcia case (supra), it was held that no independent civil action may be filed under Article 33 where the crime is the result of criminal negligence, it must be noted however, that Torzuela, the accused in the case at bar, is charged with homicide, not with reckless imprudence, whereas the defendant in Marcia was charged with reckless imprudence. Therefore, in this case, a civil action based on Article 33 lies. Private respondents also contend that their liability is subsidiary under the Revised Penal Code; and that they are not liable for Torzuela's act which is beyond the scope of his duties as a security guard. It having been established that the instant action is not ex-delicto, petitioners may proceed directly against Torzuela and the private respondents. Under Article 2180 of the New Civil Code as aforequoted, when an injury is caused by the negligence of the employee, there instantly arises a presumption of law that there was negligence on the part of the master or employer either in the

selection of the servant or employee, or in supervision over him after selection or both (Layugan v. Intermediate Appellate Court, 167 SCRA 363 [1988]). The liability of the employer under Article 2180 is direct and immediate; it is not conditioned upon prior recourse against the negligent employee and a prior showing of the insolvency of such employee (Kapalaran Bus Lines v. Coronado, 176 SCRA 792 [1989]). Therefore, it is incumbent upon the private respondents to prove that they exercised the diligence of a good father of a family in the selection and supervision of their employee. Since Article 2176 covers not only acts of negligence but also acts which are intentional and voluntary, it was therefore erroneous on the part of the trial court to dismiss petitioner's complaint simply because it failed to make allegations of attendant negligence attributable to private respondents. With respect to the issue of whether the complaint at hand states a sufficient cause of action, the general rule is that the allegations in a complaint are sufficient to constitute a cause of action against the defendants if, admitting the facts alleged, the court can render a valid judgment upon the same in accordance with the prayer therein. A cause of action exist if the following elements are present, namely: (1) a right in favor of the plaintiff by whatever means and under whatever law it arises or is created; (2) an obligation on the part of the named defendant to respect or not to violate such right; and (3) an act or omission on the part of such defendant violative of the right of the plaintiff or constituting a breach of the obligation of the defendant to the plaintiff for which the latter may maintain an action for recovery of damages (Del Bros Hotel Corporation v. CA, 210 SCRA 33 [1992]); Development Bank of the Philippines v. Pundogar, 218 SCRA 118 [1993]) This Court finds, under the foregoing premises, that the complaint sufficiently alleged an actionable breach on the part of the defendant Torzuela and respondents SUPERGUARD and/or SAFEGUARD. It is enough that the complaint alleged that Benigno Torzuela shot Napoleon Dulay resulting in the latter's death; that the shooting occurred while Torzuela was on duty; and that either SUPERGUARD and/or SAFEGUARD was Torzuela's employer and responsible for his acts. This does not operate however, to establish that the defendants below are liable. Whether or not the shooting was actually reckless and wanton or attended by negligence and whether it was actually done within the scope of Torzuela's duties; whether the private respondents SUPERGUARD and/or SAFEGUARD failed to exercise the diligence of a good father of a family; and whether the defendants are actually liable, are questions which can be better resolved after trial on the merits where each party can present evidence to prove their respective allegations and defenses. In determining whether the allegations of a complaint are sufficient to support a cause of action, it must be borne in mind that the complaint does not have to establish or allege the facts proving the existence of a cause of action at the outset; this will have to be done at the trial on the merits of the case (Del Bros Hotel Corporation v. CA, supra). If the allegations in a complaint can furnish a sufficient basis by which the complaint can be maintained, the same should not be dismissed regardless of the defenses that may be assessed by the defendants (Rava Dev't. Corp. v. CA, 211 SCRA 152 [1992] citing Consolidated Bank & Trust Corporation v. Court of Appeals, 197 SCRA 663 [1991]). To sustain a motion to dismiss for lack of cause of action, the complaint must show that the claim for relief does not exist rather than that a claim has been defectively stated, is ambiguous, indefinite or uncertain (Azur v. Provincial Board, 27 SCRA 50 [1969]). Since the petitioners clearly sustained an injury to their rights under the law, it would be more just to allow them to present evidence of such injury. WHEREFORE, premises considered, the petition for review is hereby GRANTED. The decision of the Court of Appeals as well as the Order of the Regional Trial Court dated April 13, 1989 are hereby REVERSED and SET ASIDE. Civil Case No. Q-89-1751 is remanded to the Regional Trial Court for trial on the merits. This decision is immediately executory.

SO ORDERED. G.R. No. 82465 February 25, 1991 ST. FRANCIS HIGH SCHOOL, as represented by SPS. FERNANDO NANTES AND ROSARIO LACANDULA, BENJAMIN ILUMIN, TIRSO DE CHAVEZ, LUISITO VINAS, CONNIE ARQUIO AND PATRIA CADIZ, petitioners, vs. THE HONORABLE COURT OF APPEALS, ELEVENTH DIVISION and DR. ROMULO CASTILLO and LILIA CADIZ,respondents. Jose C. Flores, Jr. for petitioners. Jovito E. Talabong for private respondents.

PARAS, J.:p This is a petition for review of the decision * of the Court of Appeals, the dispositive portion of which reads: WHEREFORE, the decision under appeal is hereby affirmed, with the following modifications: (1) Exemplary damages in the amount of P20,000.00 are hereby awarded to plaintiffs, in addition to the actual damages of P30,000.00, moral damages of P20,000.00 and attorney's fees in the amount of P15,000.00 awarded to plaintiffs in the decision under appeal; (2) St. Francis High School, represented by the Spouses Fernando Nantes and Rosario Lacandula, and Benjamin Illumin, are hereby held jointly and severally liable with defendants Connie Arquio, Tirso de Chaves, Luisito Vinas and Patria Cadis for the payment to plaintiffs of the abovementioned actual damages, moral damages, exemplary damages and attorney's fees, and for costs; and (3) Defendants Yoly Jaro and Nida Aragones are hereby absolved from liability, and the case against them, together with their respective counterclaims, is hereby ordered dismissed. SO ORDERED. (p. 60, Rollo) The complaint alleged that Ferdinand Castillo, then a freshman student of Section 1-C at the St. Francis High School, wanted to join a school picnic undertaken by Class I-B and Class I-C at Talaan Beach, Sariaya, Quezon. Ferdinand's parents, respondents spouses Dr. Romulo Castillo and Lilia Cadiz Castillo, because of short notice, did not allow their son to join but merely allowed him to bring food to the teachers for the picnic, with the directive that he should go back home after doing so. However, because of persuasion of the teachers, Ferdinand went on with them to the beach. During the picnic and while the students, including Ferdinand, were in the water, one of the female teachers was apparently drowning. Some of the students, including Ferdinand, came to her rescue, but in the process, it was Ferdinand himself who drowned. His body was recovered but efforts to resuscitate him ashore failed. He was brought to a certain Dr. Luna in Sariaya, Quezon and later to the Mt. Cannel General Hospital where he was pronounced dead on arrival.

Thereupon, respondent spouses filed a complaint docketed as Civil Case No. 8834, in the Regional Trial Court, Branch LVIII of Lucena City, against the St. Francis High School, represented by the spouses Fernando Nantes and Rosario Lacandula, Benjamin Illumin (its principal), and the teachers: Tirso de Chaves, Luisito Vinas, Connie Arquio, Nida Aragones, Yoly Jaro, and Patria Cadiz, for Damages which respondents allegedly incurred from the death of their 13-year old son, Ferdinand Castillo. Contending that the death of their son was due to the failure of the petitioners to exercise the proper diligence of a good father of the family in preventing their son's drowning, respondents prayed of actual, moral and exemplary damages, attorney's fees and expenses for litigation. The trial court found in favor of the respondents and against petitioners-teachers Arquio, de Chaves, Vinas, Aragones, Jaro and Cadiz, ordering all of them jointly and severally to pay respondents the sum of P30,000.00 as actual damages, P20,000.00 as moral damages, P15,000.00 as attorney's fees, and to pay the costs. The court a quo reasoned: Taking into consideration the evidence presented, this Court believes that the defendant teachers namely: Connie Arquio, Luisito Vinas, Tirso de Chaves, Yoly Jaro, Nida Aragones and Patria Cadiz had failed to exercise the diligence required of them by law under the circumstances to guard against the harm they had foreseen. (pp. 2930, Rollo) xxx xxx xxx While it is alleged that when defendants Yoly Jaro and Nida Aragones arrived at the picnic site, the drowning incident had already occurred, such fact does not and cannot excuse them from their liability. In fact, it could be said that by coming late, they were remiss in their duty to safeguard the students. (p. 30, Rollo) The students, young as they were then (12 to 13 years old), were easily attracted to the sea without aforethought of the dangers it offers. Yet, the precautions and reminders allegedly performed by the defendants-teachers definitely fell short of the standard required by law under the circumstances. While the defendants-teachers admitted that some parts of the sea where the picnic was held are deep, the supposed lifeguards of the children did not even actually go to the water to test the depth of the particular area where the children would swim. And indeed the fears of the plaintiffs that the picnic area was dangerous was confirmed by the fact that three persons during the picnic got drowned at the same time. Had the defendant teachers made an actual and physical observation of the water before they allowed the students to swim, they could have found out that the area where the children were swimming was indeed dangerous. And not only that, the male teachers who according to the female teachers were there to supervise the children to ensure their safety were not even at the area where the children were swimming. They were somewhere and as testified to by plaintiffs' witness they were having a drinking spree. (pp. 55-56, Rollo) On the other hand, the trial court dismissed the case against the St. Francis High School, Benjamin Illumin and Aurora Cadorna. Said the court a quo: As shown and adverted to above, this Court cannot find sufficient evidence showing that the picnic was a school sanctioned one. Similarly no evidence has been shown to hold defendants Benjamin Illumin and Aurora Cadorna responsible for the death of Ferdinand Castillo together with the other defendant teachers. It has been sufficiently shown that Benjamin Illumin had himself not consented to the picnic and in fact he

did not join it. On the other hand, defendant Aurora Cadorna had then her own class to supervise and in fact she was not amongst those allegedly invited by defendant Connie Arquio to supervise class I-C to which Ferdinand Castillo belongs. (p. 30, Rollo) Both petitioners and respondents appealed to the Court of Appeals. Respondents-spouses assigned the following errors committed by the trial court: 1. The lower court erred in not declaring the defendant St. Francis High School and its administrator/principal Benjamin Illumin as equally liable not only for its approved co-curricular activities but also for those which they unreasonably failed to exercise control and supervision like the holding of picnic in the dangerous water of Talaan Beach, Sariaya, Quezon. 2. The lower court erred in not declaring the St. Francis High School and principal Benjamin Illumin as jointly and solidarily liable with their co-defendants-teachers Rosario Lacandula, et als., for the tragic death of Ferdinand Castillo in a picnic at Talaan Beach, Sariaya, Quezon, last March 20, 1982. 3. The lower court erred in not declaring higher amount for actual and moral damages for the untimely and tragic death of Ferdinand Castillo in favor of plaintiffsappellants against all the defendants. (pp. 56-57, Rollo) The Court of Appeals ruled: We find plaintiffs-appellants' submission well-taken. Even were We to find that the picnic in question was not a school-sponsored activity, nonetheless it cannot be gainsaid that the same was held under the supervision of the teachers employed by the said school, particularly the teacher in charge of Class I-C to whom the victim belonged, and those whom she invited to help her in supervising the class during the picnic. Considering that the court a quo found negligence on the part of the six defendants-teachers who, as such, were charged with the supervision of the children during the picnic, the St. Francis High School and the school principal, Benjamin Illumin, are liable under Article 2176 taken together with the 1st, 4th and 5th paragraphs of Article 2180 of the Civil Code. They cannot escape liability on the mere excuse that the picnic was not an "extra-curricular activity of the St. Francis High School." We find from the evidence that, as claimed by plaintiffs-appellants, the school principal had knowledge of the picnic even from its planning stage and had even been invited to attend the affair; and yet he did not express any prohibition against undertaking the picnic, nor did he prescribe any precautionary measures to be adopted during the picnic. At the least, We must find that the school and the responsible school officials, particularly the principal, Benjamin Illumin, had acquiesced to the holding of the picnic. Under Article 2180, supra, the defendant school and defendant school principal must be found jointly and severally liable with the defendants-teachers for the damages incurred by the plaintiffs as a result of the death of their son. It is the rule that in cases where the above-cited provisions find application, the negligence of the employees in causing the injury or damage gives rise to a presumption of negligence on the part of the owner and/or manager of the establishment (in the present case, St. Francis High School and its principal); and while this presumption is not

conclusive, it may be overthrown only by clear and convincing proof that the owner and/or manager exercised the care and diligence of a good father of a family in the selection and/or supervision of the employee or employees causing the injury or damage (in this case, the defendants-teachers). The record does not disclose such evidence as would serve to overcome the aforesaid presumption and absolve the St. Francis High School and its principal from liability under the above-cited provisions. As to the third assigned error interposed by plaintiffs-appellants, while We cannot but commiserate with the plaintiffs for the tragedy that befell them in the untimely death of their son Ferdinand Castillo and understand their suffering as parents, especially the victim's mother who, according to appellants, suffered a nervous breakdown as a result of the tragedy, We find that the amounts fixed by the court a quo as actual damages and moral damages (P30,000.00 and P20,000.00, respectively) are reasonable and are those which are sustained by the evidence and the law. However, We believe that exemplary or corrective damages in the amount of P20,000.00 may and should be, as it is hereby, imposed in the present case by way of example of correction for the public good, pursuant to Article 2229 of the Civil Code. (pp. 57-59, Rollo) On the other hand, petitioners-teachers assigned the following errors committed by the trial court: 1. ". . . in finding the defendants Connie Arquio, Tirso de Chavez, Luisito Vinas, Nida Aragones, Yoly Jaro and Patria Cadiz guilty of negligence and jointly and severally liable for damages such finding not being supported by facts and evidence. 2. ". . . in dismissing the counterclaim interposed by the defendants. (p. 59, Rollo) On this score, respondent Court ruled: The main thrust of defendants-appellants appeal is that plaintiffs, the parents of the victim Ferdinand Castillo, were not able to prove by their evidence that they did not give their son consent to join the picnic in question. However, We agree with the trial court in its finding that whether or not the victim's parents had given such permission to their son was immaterial to the determination of the existence of liability on the part of the defendants for the damage incurred by the plaintiffs-appellants as a result of the death of their son. What is material to such a determination is whether or not there was negligence on the part of defendants vis-a-vis the supervision of the victim's group during the picnic; and, as correctly found by the trial court, an affirmative reply to this question has been satisfactorily established by the evidence, as already pointed out. However, We sustain defendants-appellants insofar as two of the defendantsteachers, Yoly Jaro and Nida Aragones, are concerned. As to them, the trial court found: While it is alleged that when defendants Yoly Jaro and Nida Aragones arrived at the picnic site, the drowning incident had already occurred, such fact does not and cannot excuse them from their liability. In fact, it could be said that by coming late, they were remiss in their duty to safeguard the students.

The evidence shows that these two defendants had satisfactorily explained why they were late in going to the picnic site, namely, that they had to attend to the entrance examination being conducted by the school which is part of their duty as teachers thereof. Since they were not at the picnic site during the occurrence in question, it cannot be said that they had any participation in the negligence attributable to the other defendants-teachers who failed to exercise diligence in the supervision of the children during the picnic and which failure resulted in the drowning of plaintiffs' son. Thus, We may not attribute any act or omission to the two teachers, Yoly Jaro and Nida Aragones, as to make them liable for the injury caused to the plaintiffs because of the death of their son resulting from his drowning at the picnic. Accordingly, they must be absolved from any liability. As to the second assigned error raised by defendants-appellants, We agree with the court a quo that the counterclaim must be dismissed for lack of merit. (pp. 5960, Rollo) Hence, this petition. The issues presented by petitioners are: A) Whether or not there was negligence attributable to the defendants which will warrant the award of damages to the plaintiffs; B) Whether or not Art. 2180, in relation to Art. 2176 of the New Civil Code is applicable to the case at bar; C) Whether or not the award of exemplary and moral damages is proper under the circumstances surrounding the case at bar. (pp. 81-82, Rollo) In the resolution of January 16, 1989, We gave due course to the petition and required the parties to submit their respective memoranda. The petition is impressed with merit. If at all petitioners are liable for negligence, this is because of their own negligence or the negligence of people under them. In the instant case however, as will be shown hereunder, petitioners are neither guilty of their own negligence or guilty of the negligence of those under them. Hence, it cannot be said that they are guilty at all of any negligence. Consequently they cannot be held liable for damages of any kind. At the outset, it should be noted that respondent spouses, parents of the victim Ferdinand, allowed their son to join the excursion. Testimony of Dr. Castillo on cross exam. by Atty. Flores Q Now, when your son asked you for money to buy food, did you not ask him where he will bring this? A I asked him where he was going, he answered, I am going to the picnic, and when I asked him where, he did not answer, sir.

Q And after giving the money, you did not tell him anything more? A No more, sir. Q And after that you just learned that your son join the picnic? A Yes, sir. Q And you came to know of it after the news that your son was drowned in the picnic came to you, is that correct? A Yes, sir. Q From 8:00 o'clock in the morning up to 12:00 o'clock noon of March 20, 1982, you did not know that your son join the picnic? A No, sir, I did not know. Q Did you not look for your son during that time? A I am too busy with my profession, that is why I was not able, sir. Q You did not ask your wife? A I did not, sir. Q And neither did your wife tell you that your son join the picnic? A Later on after 12:00, sir. Q And during that time you were too busy that you did not inquire whether your son have joined that picnic? A Yes, sir. (TSN, pp. 16-17, hearing of April 2, 1984 witness Romulo Castillo) The fact that he gave money to his son to buy food for the picnic even without knowing where it will be held, is a sign of consent for his son to join the same. Furthermore. Testimony of Dr. Lazaro on cross examination: Q How did you conduct this mental and physical examination? A I have interviewed several persons and the patient herself She even felt guilty about the death of her son because she cooked adobo for him so he could join the excursion where her son died of drowning.

Q Why were you able to say she was feeling guilty because she was the one who personally cooked the adobo for her son? A It was during the interview that I had gathered it from the patient herself. She was very sorry had she not allowed her son to join the excursion her son would have not drowned. I don't know if she actually permitted her son although she said she cooked adobo so he could join. (Emphasis Supplied) (TSN, p. 19, hearing of April 30, 1984, Dr. Lazaro witness). Respondent Court of Appeals committed an error in applying Article 2180 of the Civil Code in rendering petitioner school liable for the death of respondent's son. Article 2180, par. 4 states that: The obligation imposed by article 2176 is demandable not only for one's own acts or omissions, but also for those of persons for whom one is responsible. xxx xxx xxx Employers shall be liable for the damages caused by their employees and household helpers acting within the scope of their assigned tasks, even though the former are not engaged in any business or industry. Under this paragraph, it is clear that before an employer may be held liable for the negligence of his employee, the act or omission which caused damage or prejudice must have occurred while an employee was in the performance of his assigned tasks. In the case at bar, the teachers/petitioners were not in the actual performance of their assigned tasks. The incident happened not within the school premises, not on a school day and most importantly while the teachers and students were holding a purely private affair, a picnic. It is clear from the beginning that the incident happened while some members of the I-C class of St. Francis High School were having a picnic at Talaan Beach. This picnic had no permit from the school head or its principal, Benjamin Illumin because this picnic is not a school sanctioned activity neither is it considered as an extra-curricular activity. As earlier pointed out by the trial court, mere knowledge by petitioner/principal Illumin of the planning of the picnic by the students and their teachers does not in any way or in any manner show acquiescence or consent to the holding of the same. The application therefore of Article 2180 has no basis in law and neither is it supported by any jurisprudence. If we were to affirm the findings of respondent Court on this score, employers wig forever be exposed to the risk and danger of being hailed to Court to answer for the misdeeds or omissions of the employees even if such act or omission he committed while they are not in the performance of their duties. Finally, no negligence could be attributable to the petitioners-teachers to warrant the award of damages to the respondents-spouses. Petitioners Connie Arquio the class adviser of I-C, the section where Ferdinand belonged, did her best and exercised diligence of a good father of a family to prevent any untoward incident or damages to all the students who joined the picnic.

In fact, Connie invited co-petitioners Tirso de Chavez and Luisito Vinas who are both P.E. instructors and scout masters who have knowledge in First Aid application and swimming. Moreover, even respondents' witness, Segundo Vinas, testified that "the defendants (petitioners herein) had life savers especially brought by the defendants in case of emergency." (p. 85, Rollo) The records also show that both petitioners Chavez and Vinas did all what is humanly possible to save the child. Testimony of Luisito Vinas on cross examination, Q And when you saw the boy, Ferdinand Castillo, you approached the boy and claim also having applied first aid on him? A Yes, sir. Q And while you were applying the so called first aid, the children were covering you up or were surrounding you? A Yes, sir. Q You were rattled at that time, is it not? A No, sir. Q You mean you were in calm and peaceful condition? A Yes, sir. Q Despite the fact that the boy was no longer responding to your application of first aid? A Yes, sir. Q You have never been disturbed, "nababahala" in the process of your application of the first aid on the body of Ferdinand Castillo? A No, sir, because we were attending to the application of first aid that we were doing, sir. Q After you have applied back to back pressure and which you claimed the boy did not respond, were you not disturb anyway? A I was disturbed during that time, sir. Q For how many minutes have you applied the back to back pressure? A From 9 to 11 times, sir. Q You mean 9 to 11 times of having applied the pressure of your body on the body of Ferdinand Castillo?

A Yes, sir. Q Will you please describe how you applied a single act of back to back pressure? A This has been done by placing the boy lay first downwards, then the face was a little bit facing right and doing it by massaging the back of the child, sir." (TSN, pp. 32-35, hearing of July 30, 1984) Testimony of Tirso de Chavez on direct examination ATTY. FLORES: Q Who actually applied the first aid or artificial respiration to the child? A Myself, sir. Q How did you apply the first aid to the guy? A The first step that I took, with the help of Mr. Luisito Vinas, was I applied back to back pressure and took notice of the condition of the child. We placed the feet in a higher position, that of the head of the child, sir. Q After you have placed the boy in that particular position, where the feet were on a higher level than that of the head, what did you do next? A The first thing that we did, particularly myself, was that after putting the child in that position, I applied the back to back pressure and started to massage from the waistline up, but I noticed that the boy was not responding, sir. Q For how long did you apply this back to back pressure on the boy? A About 10 seconds, sir. Q What about Mr. Vinas? A Almost the same a little longer, for 15 seconds, sir. Q After you noticed that the boy was not responding, what did you do? A When we noticed that the boy was not responding, we changed the position of the boy by placing the child facing upwards laying on the sand then we applied the mouth to mouth resuscitation, sir. (pp. 9293, Rollo)

With these facts in mind, no moral nor exemplary damages may be awarded in favor of respondentsspouses. The case at bar does not fall under any of the grounds to grant moral damages. Art. 2217. Moral Damages include physical suffering, mental anguish, fright, serious anxiety, besmirched reputation, wounded feelings, moral shock, social humiliation, and similar injury. Though incapable of pecuniary computation, moral damages may be recovered if they are the proximate result of the defendant's wrongful act or omission. Moreover, as already pointed out hereinabove, petitioners are not guilty of any fault or negligence, hence, no moral damages can be assessed against them. While it is true that respondents-spouses did give their consent to their son to join the picnic, this does not mean that the petitioners were already relieved of their duty to observe the required diligence of a good father of a family in ensuring the safety of the children. But in the case at bar, petitioners were able to prove that they had exercised the required diligence. Hence, the claim for moral or exemplary damages becomes baseless. PREMISES CONSIDERED, the questioned decision dated November 19, 1987, finding petitioners herein guilty of negligence and liable for the death of Ferdinand Castillo and awarding the respondents damages, is hereby SET ASIDE insofar as the petitioners herein are concerned, but the portion of the said decision dismissing their counterclaim, there being no merit, is hereby AFFIRMED. SO ORDERED. G.R. No. 75112 October 16, 1990 FILAMER CHRISTIAN INSTITUTE, petitioner, vs. HONORABLE COURT OF APPEALS, HONORABLE ENRIQUE P. SUPLICO, in his capacity as Judge of the Regional Trial Court,. Branch XIV, Roxas City and the late POTENCIANO KAPUNAN, SR., as substituted by his heirs, namely: LEONA KAPUNAN TIANGCO, CICERO KAPUNAN, JESUS KAPUNAN, SANTIAGO KAPUNAN, POTENCIANO KAPUNAN, JR., PAZ KAPUNAN PUBLICO, SUSA KAPUNAN GENUINO and ERLINDA KAPUNAN TESORO, respondents. Aquilina B. Brotarlo for petitioner. Rhodora G. Kapunan for the Substituted Heirs of the late respondent.

FERNAN, C.J.: This is a petition for review of the decision 1 of the Court of Appeals affirming the judgment of the Regional Trial Court (RTC) of Roxas City, Branch 14 in Civil Case No. V-4222 which found petitioner Filamer Christian Institute and Daniel Funtecha negligent and therefore answerable for the resulting injuries caused to private respondent Potenciano Kapunan, Sr.

Private respondent Potenciano Kapunan, Sr., an eighty-two-year old retired schoolteacher (now deceased), was struck by the Pinoy jeep owned by petitioner Filamer and driven by its alleged employee, Funtecha, as Kapunan, Sr. was walking along Roxas Avenue, Roxas City at 6:30 in the evening of October 20, 1977. As a result of the accident, Kapunan, Sr. suffered multiple injuries for which he was hospitalized for a total of twenty (20) days. Evidence showed that at the precise time of the vehicular accident, only one headlight of the jeep was functioning. Funtecha, who only had a student driver's permit, was driving after having persuaded Allan Masa, the authorized driver, to turn over the wheels to him. The two fled from the scene after the incident. A tricycle driver brought the unconscious victim to the hospital. Thereafter, Kapunan, Sr. instituted a criminal case against Funtecha alone in the City Court of Roxas City for serious physical injuries through reckless imprudence. Kapunan, Sr. reserved his right to file an independent civil action. The inferior court found Funtecha guilty as charged and on appeal, his conviction was affirmed by the then Court of First Instance of Capiz. 2 Pursuant to his reservation, Kapunan, Sr. commenced a civil case for damages 3 before the RTC of Roxas City. Named defendants in the complaint were petitioner Filamer and Funtecha. Also included was Agustin Masa, the director and president of Filamer Christian Institute, in his personal capacity in that he personally authorized and allowed said Daniel Funtecha who was his houseboy at the time of the incident, to drive the vehicle in question despite his knowledge and awareness that the latter did not have the necessary license or permit to drive said vehicle. His son, Allan Masa, who was with Funtecha at the time of the accident, was not impleaded as a co-defendant. 4 On December 14, 1983, the trial court rendered judgment finding not only petitioner Filamer and Funtecha to be at fault but also Allan Masa, a non-party. Thus: WHEREFORE, finding the averments in the complaint as supported by preponderance of evidence to be reasonable and justified, and that defendants Daniel Funtecha, Filamer Christian Institute and Allan Masa are at fault and negligent of the acts complained of which causes (sic) injury to plaintiff, judgment is hereby rendered in favor of the plaintiff and against the defendants, namely: Daniel Funtecha and Filamer Christian Institute, the employer whose liability is primary and direct, jointly and severally, to pay plaintiff the following: (1) to pay the sum of TWO THOUSAND NINE HUNDRED FIFTY PESOS AND FIFTY CENTAVOS (P2,950.50) as medical expenses (Exh. "A"); (2) to pay TWO HUNDRED FORTY ONE PESOS (P241.00) as doctor's fee (Exh. "C"); (3) to pay THREE HUNDRED NINETY PESOS (P390.00) as additional expenses incurred for thirty-nine days at P10.00 a day, for remuneration of plaintiff's helper while recuperating; (4) to pay FOUR THOUSAND PESOS (P4,000.00) as Court litigation expenses; (5) to pay THREE THOUSAND PESOS (P3,000.00) as loss of earnings capacity; (6) to pay TWENTY THOUSAND (P20,000.00) pesos as moral damages;

(7) to pay FOUR THOUSAND FIVE HUNDRED PESOS (P4,500.00) as attorney's fees; (8) to pay TWENTY THOUSAND PESOS (P20,000.00)as insurance indemnity on the policy contract; and without prejudice to the right of defendant Filamer Christian Institute to demand from co-defendant Daniel Funtecha part-time employee and/or Allan Masa a full time employee reimbursement of the damages paid to herein plaintiff. The defendant Agustin Masa as director of defendant Filamer Christian Institute has also failed to exercise the diligence required of a good father of a family in the supervision of his employee Allan Masa, being his son. However, the court absolved defendant Agustin Masa from any personal liability with respect to the complaint filed against him in his personal and private capacity, cause he was not in the vehicle during the alleged incident. For failure to prove their respective counterclaims filed by the defendant Daniel Funtecha, Dr. Agustin Masa, and Filamer Christian Institute, as against the herein plaintiff, same are hereby dismissed. The Zenith Insurance Corporation as third party defendant has failed to prove that there was a policy violation made by the defendant Filamer Christian Institute which absolves them from liability under the aforesaid insurance policy. The record shows that the defendant Daniel Funtecha while driving the said vehicle was having a student drivers license marked Exh. "1" and accompanied by Allan Masa who is the authorized driver of said vehicle with a professional drivers license as shown by Exh. "3". This Court finds that defendant Daniel Funtecha while driving the said vehicle is considered as authorized driver in accordance with the policy in question marked Exh. "2-Masa and FCI". Finding the averments in the third party complaint filed by defendant Filamer Christian Institute as supported by preponderance of evidence as shown by their exhibits to be reasonable and justified, judgment is hereby rendered in favor of the said defendant and third party plaintiff Filamer Christian Institute as against third party defendant Zenith Insurance Corporation. The Zenith Insurance Corporation as third party defendant is hereby ordered to pay in favor of the defendant and third party plaintiff, Filamer Christian Institute, the following: (1) to pay TWENTY THOUSAND PESOS (P20,000.00) as third party liability as provided in the Zenith Insurance Corporation policy (Exh. "2"); (2) to pay TEN THOUSAND PESOS (P10,000.00)as moral damages; (3) to pay FOUR THOUSAND PESOS (P4,000.00) as Court litigation and actual expenses;

(4) to pay THREE THOUSAND PESOS (P3,000.00) as attorney's fees;

The defendants Daniel Funtecha, Filamer Christian Institute and third party defendant Zenith Insurance Corporation are hereby ordered jointly and severally, to pay the costs of the suit. 5

Only petitioner Filamer and third-party defendant Zenith Insurance Corporation appealed the lower court's judgment to the Court of Appeals and as a consequence, said lower court's decision became final as to Funtecha. For failure of the insurance firm to pay the docket fees, its appeal was dismissed on September 18, 1984. On December 17, 1985, the Appellate Court rendered the assailed judgment affirming the trial court's decision in toto.6 Hence the present recourse by petitioner Filamer. It is petitioner Filamer's basic contention that it cannot be held responsible for the tortious act of Funtecha on the ground that there is no existing employer-employee relationship between them. We agree. The Civil Code provides: Art. 2176. Whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay for the damage done. Such fault or negligence, if there is no pre-existing contractual relation between the parties, is called a quasidelict and is governed by the provisions of this Chapter. Art. 2180. The obligation imposed by article 2176 is demandable not only for one's own acts or omissions but also for those of persons for whom one is responsible. xxx xxx xxx Employers shall be liable for the damages caused by their employees and household helpers acting within the scope of their assigned tasks, even though the former are not engaged in any business or industry. xxx xxx xxx The responsibility treated of in this article shall cease when the persons herein mentioned prove that they observe all the diligence of a good father of a family to prevent damage. (Emphasis supplied). The legal issue in this appeal is whether or not the term "employer" as used in Article 2180 is applicable to petitioner Filamer with reference to Funtecha. In disclaiming liability, petitioner Filamer has invoked the provisions of the Labor Code, 7 specifically Section 14, Rule X of Book III which reads: Sec. 14. Working scholars. There is no employer-employee relationship between students on the one hand, and schools, colleges or universities on the other, where students work for the latter in exchange for the privilege to study free of charge; provided the students are given real opportunity, including such facilities as may be

reasonable, necessary to finish their chosen court under such arrangement. (Emphasis supplied). It is manifest that under the just-quoted provision of law, petitioner Filamer cannot be considered as Funtecha's employer. Funtecha belongs to that special category of students who render service to the school in exchange for free tuition Funtecha worked for petitioner for two hours daily for five days a week. He was assigned to clean the school passageways from 4:00 a.m. to 6:00 a.m. with sufficient time to prepare for his 7:30 a.m. classes. As admitted by Agustin Masa in open court, Funtecha was not included in the company payroll. 8 The wording of Section 14 is clear and explicit and leaves no room for equivocation. To dismiss the implementing rule as one which governs only the "personal relationship" between the school and its students and not where there is already a third person involved, as espoused by private respondents, is to read into the law something that was not legislated there in the first place. The provision of Section 14 is obviously intended to eliminate an erstwhile gray area in labor relations and seeks to define in categorical terms the precise status of working scholars in relation to the learning institutions in which they work for the privilege of a free education. But even if we were to concede the status of an employee on Funtecha, still the primary responsibility for his wrongdoing cannot be imputed to petitioner Filamer for the plain reason that at the time of the accident, it has been satisfactorily shown that Funtecha was not acting within the scope of his supposed employment. His duty was to sweep the school passages for two hours every morning before his regular classes. Taking the wheels of the Pinoy jeep from the authorized driver at 6:30 in the evening and then driving the vehicle in a reckless manner resulting in multiple injuries to a third person were certainly not within the ambit of his assigned tasks. In other words, at the time of the injury, Funtecha was not engaged in the execution of the janitorial services for which he was employed, but for some purpose of his own. It is but fair therefore that Funtecha should bear the full brunt of his tortious negligence. Petitioner Filamer cannot be made liable for the damages he had caused. Private respondents' attempt to hold petitioner Filamer directly and primarily answerable to the injured party under Article 2180 of the Civil Code would have prospered had they proceeded against Allan Masa, the authorized driver of the Pinoy jeep and undisputably an employee of petitioner. It was Allan's irresponsible act of entrusting the wheels of the vehicle to the inexperienced Funtecha which set into motion the chain of events leading to the accident resulting in injuries to Kapunan, Sr. But under the present set of circumstances, even if the trial court did find Allan guilty of negligence, such conclusion would not be binding on Allan. It must be recalled that Allan was never impleaded in the complaint for damages and should be considered as a stranger as far as the trial court's judgment is concerned. It is axiomatic that no man shall be affected by a proceeding to which he is a stranger. 9 WHEREFORE, in view of the foregoing, the decision under review of the Court of Appeals is hereby SET ASIDE. The complaint for damages 10 is ordered DISMISSED as against petitioner Filamer Christian Institute for lack of cause of action. No costs. SO ORDERED. G.R. No. L-55963 December 1, 1989 SPOUSES JOSE FONTANILLA AND VIRGINIA FONTANILLA, petitioners, vs.

HONORABLE INOCENCIO D. MALIAMAN and NATIONAL IRRIGATION ADMINISTRATION, respondents. G.R. No. L-61045 December 1, 1989 NATIONAL IRRIGATION ADMINISTRATION, appellant, vs. SPOUSES JOSE FONTANILLA and VIRGINIA FONTANILLA, appellees. Cecilio V. Suarez, Jr. for Spouses Fontanilla. Felicisimo C. Villaflor for NIA.

PARAS, J.: In G.R. No. L-55963, the petition for review on certiorari seeks the affirmance of the decision dated March 20, 1980 of the then Court of First Instance of Nueva Ecija, Branch VIII, at San Jose City and its modification with respect to the denial of petitioner's claim for moral and exemplary damages and attorneys fees. In G.R. No. 61045, respondent National Irrigation Administration seeks the reversal of the aforesaid decision of the lower court. The original appeal of this case before the Court of Appeals was certified to this Court and in the resolution of July 7, 1982, it was docketed with the aforecited number. And in the resolution of April 3, this case was consolidated with G.R. No. 55963. It appears that on August 21, 1976 at about 6:30 P.M., a pickup owned and operated by respondent National Irrigation Administration, a government agency bearing Plate No. IN-651, then driven officially by Hugo Garcia, an employee of said agency as its regular driver, bumped a bicycle ridden by Francisco Fontanilla, son of herein petitioners, and Restituto Deligo, at Maasin, San Jose City along the Maharlika Highway. As a result of the impact, Francisco Fontanilla and Restituto Deligo were injured and brought to the San Jose City Emergency Hospital for treatment. Fontanilla was later transferred to the Cabanatuan Provincial Hospital where he died. Garcia was then a regular driver of respondent National Irrigation Administration who, at the time of the accident, was a licensed professional driver and who qualified for employment as such regular driver of respondent after having passed the written and oral examinations on traffic rules and maintenance of vehicles given by National Irrigation Administration authorities. The within petition is thus an off-shot of the action (Civil Case No. SJC-56) instituted by petitionersspouses on April 17, 1978 against respondent NIA before the then Court of First Instance of Nueva Ecija, Branch VIII at San Jose City, for damages in connection with the death of their son resulting from the aforestated accident. After trial, the trial court rendered judgment on March 20, 1980 which directed respondent National Irrigation Administration to pay damages (death benefits) and actual expenses to petitioners. The dispositive portion of the decision reads thus: . . . . . Judgment is here rendered ordering the defendant National Irrigation Administration to pay to the heirs of the deceased P12,000.00 for the death of

Francisco Fontanilla; P3,389.00 which the parents of the deceased had spent for the hospitalization and burial of the deceased Francisco Fontanilla; and to pay the costs. (Brief for the petitioners spouses Fontanilla, p. 4; Rollo, p. 132) Respondent National Irrigation Administration filed on April 21, 1980, its motion for reconsideration of the aforesaid decision which respondent trial court denied in its Order of June 13, 1980. Respondent National Irrigation Administration thus appealed said decision to the Court of Appeals (C.A.-G.R. No. 67237- R) where it filed its brief for appellant in support of its position. Instead of filing the required brief in the aforecited Court of Appeals case, petitioners filed the instant petition with this Court. The sole issue for the resolution of the Court is: Whether or not the award of moral damages, exemplary damages and attorney's fees is legally proper in a complaint for damages based on quasi-delict which resulted in the death of the son of herein petitioners. Petitioners allege: 1. The award of moral damages is specifically allowable. under paragraph 3 of Article 2206 of the New Civil Code which provides that the spouse, legitimate and illegitimate descendants and ascendants of the deceased may demand moral damages for mental anguish by reason of the death of the deceased. Should moral damages be granted, the award should be made to each of petitionersspouses individually and in varying amounts depending upon proof of mental and depth of intensity of the same, which should not be less than P50,000.00 for each of them. 2. The decision of the trial court had made an impression that respondent National Irrigation Administration acted with gross negligence because of the accident and the subsequent failure of the National Irrigation Administration personnel including the driver to stop in order to give assistance to the, victims. Thus, by reason of the gross negligence of respondent, petitioners become entitled to exemplary damages under Arts. 2231 and 2229 of the New Civil Code. 3. Petitioners are entitled to an award of attorney's fees, the amount of which (20%) had been sufficiently established in the hearing of May 23, 1979. 4. This petition has been filed only for the purpose of reviewing the findings of the lower court upon which the disallowance of moral damages, exemplary damages and attorney's fees was based and not for the purpose of disturbing the other findings of fact and conclusions of law. The Solicitor General, taking up the cudgels for public respondent National Irrigation Administration, contends thus: 1. The filing of the instant petition is rot proper in view of the appeal taken by respondent National Irrigation Administration to the Court of Appeals against the judgment sought to be reviewed. The focal issue raised in respondent's appeal to the Court of Appeals involves the question as to whether or not the driver of the vehicle that bumped the victims was negligent in his operation of said vehicle. It thus becomes necessary that before petitioners' claim for moral and exemplary damages could be resolved, there should first be a finding of negligence on the part of

respondent's employee-driver. In this regard, the Solicitor General alleges that the trial court decision does not categorically contain such finding. 2. The filing of the "Appearance and Urgent Motion For Leave to File PlaintiffAppellee's Brief" dated December 28, 1981 by petitioners in the appeal (CA-G.R. No. 67237-R; and G. R. No.61045) of the respondent National Irrigation Administration before the Court of Appeals, is an explicit admission of said petitioners that the herein petition, is not proper. Inconsistent procedures are manifest because while petitioners question the findings of fact in the Court of Appeals, they present only the questions of law before this Court which posture confirms their admission of the facts. 3. The fact that the parties failed to agree on whether or not negligence caused the vehicular accident involves a question of fact which petitioners should have brought to the Court of Appeals within the reglementary period. Hence, the decision of the trial court has become final as to the petitioners and for this reason alone, the petition should be dismissed. 4. Respondent Judge acted within his jurisdiction, sound discretion and in conformity with the law. 5. Respondents do not assail petitioners' claim to moral and exemplary damages by reason of the shock and subsequent illness they suffered because of the death of their son. Respondent National Irrigation Administration, however, avers that it cannot be held liable for the damages because it is an agency of the State performing governmental functions and driver Hugo Garcia was a regular driver of the vehicle, not a special agent who was performing a job or act foreign to his usual duties. Hence, the liability for the tortious act should. not be borne by respondent government agency but by driver Garcia who should answer for the consequences of his act. 6. Even as the trial court touched on the failure or laxity of respondent National Irrigation Administration in exercising due diligence in the selection and supervision of its employee, the matter of due diligence is not an issue in this case since driver Garcia was not its special agent but a regular driver of the vehicle. The sole legal question on whether or not petitioners may be entitled to an award of moral and exemplary damages and attorney's fees can very well be answered with the application of Arts. 2176 and 2180 of theNew Civil Code. Art. 2176 thus provides: Whoever by act omission causes damage to another, there being fault or negligence, is obliged to pay for damage done. Such fault or negligence, if there is no preexisting cotractual relation between the parties, is called a quasi-delict and is governed by the provisions of this Chapter Paragraphs 5 and 6 of Art. 21 80 read as follows: Employers shall be liable for the damages caused by their employees and household helpers acting within the scope of their assigned tasks, even the though the former are not engaged in any business or industry.

The State is responsible in like manner when it acts through a special agent.; but not when the damage has been caused by the official to whom the task done properly pertains, in which case what is provided in Art. 2176 shall be applicable. The liability of the State has two aspects. namely: 1. Its public or governmental aspects where it is liable for the tortious acts of special agents only. 2. Its private or business aspects (as when it engages in private enterprises) where it becomes liable as an ordinary employer. (p. 961, Civil Code of the Philippines; Annotated, Paras; 1986 Ed. ). In this jurisdiction, the State assumes a limited liability for the damage caused by the tortious acts or conduct of its special agent. Under the aforequoted paragrah 6 of Art. 2180, the State has voluntarily assumed liability for acts done through special agents. The State's agent, if a public official, must not only be specially commissioned to do a particular task but that such task must be foreign to said official's usual governmental functions. If the State's agent is not a public official, and is commissioned to perform non-governmental functions, then the State assumes the role of an ordinary employer and will be held liable as such for its agent's tort. Where the government commissions a private individual for a special governmental task, it is acting through a special agent within the meaning of the provision. (Torts and Damages, Sangco, p. 347, 1984 Ed.) Certain functions and activities, which can be performed only by the government, are more or less generally agreed to be "governmental" in character, and so the State is immune from tort liability. On the other hand, a service which might as well be provided by a private corporation, and particularly when it collects revenues from it, the function is considered a "proprietary" one, as to which there may be liability for the torts of agents within the scope of their employment. The National Irrigation Administration is an agency of the government exercising proprietary functions, by express provision of Rep. Act No. 3601. Section 1 of said Act provides: Section 1. Name and domicile.-A body corporate is hereby created which shall be known as the National Irrigation Administration, hereinafter called the NIA for short, which shall be organized immediately after the approval of this Act. It shall have its principal seat of business in the City of Manila and shall have representatives in all provinces for the proper conduct of its business. Section 2 of said law spells out some of the NIA's proprietary functions. ThusSec. 2. Powers and objectives.-The NIA shall have the following powers and objectives: (a) x x x x x x x x x x x x x x x x x x (b) x x x x x x x x x x x x x x x x x x (c) To collect from the users of each irrigation system constructed by it such fees as may be necessary to finance the continuous operation of the system and reimburse

within a certain period not less than twenty-five years cost of construction thereof; and (d) To do all such other tthings and to transact all such business as are directly or indirectly necessary, incidental or conducive to the attainment of the above objectives. Indubitably, the NIA is a government corporation with juridical personality and not a mere agency of the government. Since it is a corporate body performing non-governmental functions, it now becomes liable for the damage caused by the accident resulting from the tortious act of its driveremployee. In this particular case, the NIA assumes the responsibility of an ordinary employer and as such, it becomes answerable for damages. This assumption of liability, however, is predicated upon the existence of negligence on the part of respondent NIA. The negligence referred to here is the negligence of supervision. At this juncture, the matter of due diligence on the part of respondent NIA becomes a crucial issue in determining its liability since it has been established that respondent is a government agency performing proprietary functions and as such, it assumes the posture of an ordinary employer which, under Par. 5 of Art. 2180, is responsible for the damages caused by its employees provided that it has failed to observe or exercise due diligence in the selection and supervision of the driver. It will be noted from the assailed decision of the trial court that "as a result of the impact, Francisco Fontanilla wasthrown to a distance 50 meters away from the point of impact while Restituto Deligo was thrown a little bit further away. The impact took place almost at the edge of the cemented portion of the road." (Emphasis supplied,) [page 26, Rollo] The lower court further declared that "a speeding vehicle coming in contact with a person causes force and impact upon the vehicle that anyone in the vehicle cannot fail to notice. As a matter of fact, the impact was so strong as shown by the fact that the vehicle suffered dents on the right side of the radiator guard, the hood, the fender and a crack on the radiator as shown by the investigation report (Exhibit "E"). (Emphasis supplied) [page 29, Rollo] It should be emphasized that the accident happened along the Maharlika National Road within the city limits of San Jose City, an urban area. Considering the fact that the victim was thrown 50 meters away from the point of impact, there is a strong indication that driver Garcia was driving at a high speed. This is confirmed by the fact that the pick-up suffered substantial and heavy damage as above-described and the fact that the NIA group was then "in a hurry to reach the campsite as early as possible", as shown by their not stopping to find out what they bumped as would have been their normal and initial reaction. Evidently, there was negligence in the supervision of the driver for the reason that they were travelling at a high speed within the city limits and yet the supervisor of the group, Ely Salonga, failed to caution and make the driver observe the proper and allowed speed limit within the city. Under the situation, such negligence is further aggravated by their desire to reach their destination without even checking whether or not the vehicle suffered damage from the object it bumped, thus showing imprudence and reckelessness on the part of both the driver and the supervisor in the group. Significantly, this Court has ruled that even if the employer can prove the diligence in the selection and supervision (the latter aspect has not been established herein) of the employee, still if he ratifies the wrongful acts, or take no step to avert further damage, the employer would still be liable. (Maxion vs. Manila Railroad Co., 44 Phil. 597).

Thus, too, in the case of Vda. de Bonifacio vs. B.L.T. Bus Co. (L-26810, August 31, 1970, 34 SCRA 618), this Court held that a driver should be especially watchful in anticipation of others who may be using the highway, and his failure to keep a proper look out for reasons and objects in the line to be traversed constitutes negligence. Considering the foregoing, respondent NIA is hereby directed to pay herein petitioners-spouses the amounts of P12,000.00 for the death of Francisco Fontanilla; P3,389.00 for hospitalization and burial expenses of the aforenamed deceased; P30,000.00 as moral damages; P8,000.00 as exemplary damages and attorney's fees of 20% of the total award. SO ORDERED. G.R. No. L-54357 April 25, 1988 REYNALDO PASCO, assisted by his father PEDRO PASCO, petitioner, vs. COURT OF FIRST INSTANCE OF BULACAN, BRANCH V, STA. MARIA and ARANETA UNIVERSITY,respondents. Ponciano G. Hernandez for petitioner. Marcelo C. Aniana for respondents.

PARAS, J.: The sole question of law raised by petitioner in this case is whether the provision of the penultimate paragraph of Article 2180 of the Civil Code which states: Lastly, teachers or heads of establishments of arts and trades shall be liable for damages caused by their pupils and students or apprentices, so long as they remain in their custody. is equally applicable to academic institutions. The facts of this case are as follows: On August 24, 1979 at about 5:00 o'clock in the afternoon, petitioner, together with two companions, while walking inside the campus of the private respondent Araneta University, after attending classes in said university, was accosted and mauled by a group of Muslim students led by Abdul Karim Madidis alias "Teng." Said Muslim group were also students of the Araneta University. Petitioner was subsequently stabbed by Abdul and as a consequence he was hospitalized at the Manila Central University (MCU) Hospital where he underwent surgery to save his life. On October 5, 1979, petitioner, assisted by his father Pedro Pasco, filed a complaint for damages against Abdul Karim Madidis and herein private respondent Gregorio Araneta University which was docketed as Civil Case No. SM-1027. Said school was impleaded as a party defendant based on the aforementioned provision of the Civil Code. On October 26, 1979, respondent school filed a Motion to Dismiss on the following grounds:

a. The penultimate paragraph of Article 2180 of the New Civil Code under which it was sued applies only to vocational schools and not to academic institutions; b. That every person criminally liable for a felony is also civilly liable under Article 100 of the Revised Penal Code. Hence, the civil liability in this case arises from a criminal action which the defendant university has not committed; c. Since this is a civil case, a demand should have been made by the plaintiff, hence, it would be premature to bring an action for damages against defendant University. (Rollo, p. 96) On May 12, 1980, respondent court issued an Order * granting said Motion to Dismiss. Petitioner moved to reconsider the Order of Dismissal but the motion was likewise denied on the ground that there is no sufficient justification to disturb its ruling. Hence, this instant Petition for certiorari under Republic Act No. 5440, praying that judgment be rendered setting aside the questioned order of May 12, 1980 dismissing the complaint as against respondent school and the order of July 17, 1980 denying the reconsideration of the questioned order of dismissal, with costs against respondent school. We find no necessity of discussing the applicability of the Article to educational institutions (which are not schools of arts and trades) for the issue in this petition is actually whether or not, under the article, the school or the university itself (as distinguished from the teachers or heads) is liable. We find the answer in the negative, for surely the provision concerned speaks only of "teachers or heads." WHEREFORE, this Petition is DISMISSED for lack of merit. SO ORDERED. Yap, C.J. and Pa G.R. No. L-47745 April 15, 1988 JOSE S. AMADORA, LORETA A. AMADORA, JOSE A. AMADORA JR., NORMA A. YLAYA PANTALEON A. AMADORA, JOSE A. AMADORA III, LUCY A. AMADORA, ROSALINDA A. AMADORA, PERFECTO A. AMADORA, SERREC A. AMADORA, VICENTE A. AMADORA and MARIA TISCALINA A. AMADORA, petitioners vs. HONORABLE COURT OF APPEALS, COLEGIO DE SAN JOSE-RECOLETOS, VICTOR LLUCH SERGIO P. DLMASO JR., CELESTINO DICON, ANIANO ABELLANA, PABLITO DAFFON thru his parents and natural guardians, MR. and MRS. NICANOR GUMBAN, and ROLANDO VALENCIA, thru his guardian, A. FRANCISCO ALONSO, respondents. Jose S. Amadora & Associates for petitioners. Padilla Law Office for respondents.

CRUZ, J.:

Like any prospective graduate, Alfredo Amadora was looking forward to the commencement exercises where he would ascend the stage and in the presence of his relatives and friends receive his high school diploma. These ceremonies were scheduled on April 16, 1972. As it turned out, though, fate would intervene and deny him that awaited experience. On April 13, 1972, while they were in the auditorium of their school, the Colegio de San Jose-Recoletos, a classmate, Pablito Damon, fired a gun that mortally hit Alfredo, ending all his expectations and his life as well. The victim was only seventeen years old. 1 Daffon was convicted of homicide thru reckless imprudence . 2 Additionally, the herein petitioners, as the victim's parents, filed a civil action for damages under Article 2180 of the Civil Code against the Colegio de San Jose-Recoletos, its rector the high school principal, the dean of boys, and the physics teacher, together with Daffon and two other students, through their respective parents. The complaint against the students was later dropped. After trial, the Court of First Instance of Cebu held the remaining defendants liable to the plaintiffs in the sum of P294,984.00, representing death compensation, loss of earning capacity, costs of litigation, funeral expenses, moral damages, exemplary damages, and attorney's fees . 3 On appeal to the respondent court, however, the decision was reversed and all the defendants were completely absolved . 4 In its decision, which is now the subject of this petition for certiorari under Rule 45 of the Rules of Court, the respondent court found that Article 2180 was not applicable as the Colegio de San JoseRecoletos was not a school of arts and trades but an academic institution of learning. It also held that the students were not in the custody of the school at the time of the incident as the semester had already ended, that there was no clear identification of the fatal gun and that in any event the defendant, had exercised the necessary diligence in preventing the injury. 5 The basic undisputed facts are that Alfredo Amadora went to the San Jose-Recoletos on April 13, 1972, and while in its auditorium was shot to death by Pablito Daffon, a classmate. On the implications and consequences of these facts, the parties sharply disagree. The petitioners contend that their son was in the school to show his physics experiment as a prerequisite to his graduation; hence, he was then under the custody of the private respondents. The private respondents submit that Alfredo Amadora had gone to the school only for the purpose of submitting his physics report and that he was no longer in their custody because the semester had already ended. There is also the question of the identity of the gun used which the petitioners consider important because of an earlier incident which they claim underscores the negligence of the school and at least one of the private respondents. It is not denied by the respondents that on April 7, 1972, Sergio Damaso, Jr., the dean of boys, confiscated from Jose Gumban an unlicensed pistol but later returned it to him without making a report to the principal or taking any further action . 6 As Gumban was one of the companions of Daffon when the latter fired the gun that killed Alfredo, the petitioners contend that this was the same pistol that had been confiscated from Gumban and that their son would not have been killed if it had not been returned by Damaso. The respondents say, however, that there is no proof that the gun was the same firearm that killed Alfredo. Resolution of all these disagreements will depend on the interpretation of Article 2180 which, as it happens, is invoked by both parties in support of their conflicting positions. The pertinent part of this article reads as follows: Lastly, teachers or heads of establishments of arts and trades shall be liable for damages caused by their pupils and students or apprentices so long as they remain in their custody.

Three cases have so far been decided by the Court in connection with the above-quoted provision, to wit: Exconde v. Capuno 7 Mercado v. Court of Appeals, 8 and Palisoc v. Brillantes. 9 These will be briefly reviewed in this opinion for a better resolution of the case at bar. In the Exconde Case, Dante Capuno, a student of the Balintawak Elementary School and a Boy Scout, attended a Rizal Day parade on instructions of the city school supervisor. After the parade, the boy boarded a jeep, took over its wheel and drove it so recklessly that it turned turtle, resulting in the death of two of its passengers. Dante was found guilty of double homicide with reckless imprudence. In the separate civil action flied against them, his father was held solidarily liable with him in damages under Article 1903 (now Article 2180) of the Civil Code for the tort committed by the 15-year old boy. This decision, which was penned by Justice Bautista Angelo on June 29,1957, exculpated the school in an obiter dictum (as it was not a party to the case) on the ground that it was riot a school of arts and trades. Justice J.B.L. Reyes, with whom Justices Sabino Padilla and Alex Reyes concurred, dissented, arguing that it was the school authorities who should be held liable Liability under this rule, he said, was imposed on (1) teachers in general; and (2) heads of schools of arts and trades in particular. The modifying clause "of establishments of arts and trades" should apply only to "heads" and not "teachers." Exconde was reiterated in the Mercado Case, and with an elaboration. A student cut a classmate with a razor blade during recess time at the Lourdes Catholic School in Quezon City, and the parents of the victim sued the culprits parents for damages. Through Justice Labrador, the Court declared in another obiter (as the school itself had also not been sued that the school was not liable because it was not an establishment of arts and trades. Moreover, the custody requirement had not been proved as this "contemplates a situation where the student lives and boards with the teacher, such that the control, direction and influences on the pupil supersede those of the parents." Justice J.B.L. Reyes did not take part but the other members of the court concurred in this decision promulgated on May 30, 1960. In Palisoc vs. Brillantes, decided on October 4, 1971, a 16-year old student was killed by a classmate with fist blows in the laboratory of the Manila Technical Institute. Although the wrongdoer who was already of age was not boarding in the school, the head thereof and the teacher in charge were held solidarily liable with him. The Court declared through Justice Teehankee: The phrase used in the cited article "so long as (the students) remain in their custody" means the protective and supervisory custody that the school and its heads and teachers exercise over the pupils and students for as long as they are at attendance in the school, including recess time. There is nothing in the law that requires that for such liability to attach, the pupil or student who commits the tortious act must live and board in the school, as erroneously held by the lower court, and the dicta in Mercado (as well as in Exconde) on which it relied, must now be deemed to have been set aside by the present decision. This decision was concurred in by five other members, 10 including Justice J.B.L. Reyes, who stressed, in answer to the dissenting opinion, that even students already of age were covered by the provision since they were equally in the custody of the school and subject to its discipline. Dissenting with three others, 11 Justice Makalintal was for retaining the custody interpretation in Mercado and submitted that the rule should apply only to torts committed by students not yet of age as the school would be acting only in loco parentis.

In a footnote, Justice Teehankee said he agreed with Justice Reyes' dissent in the Exconde Case but added that "since the school involved at bar is a non-academic school, the question as to the applicability of the cited codal provision to academic institutions will have to await another case wherein it may properly be raised." This is the case. Unlike in Exconde and Mercado, the Colegio de San Jose-Recoletos has been directly impleaded and is sought to be held liable under Article 2180; and unlike in Palisoc, it is not a school of arts and trades but an academic institution of learning. The parties herein have also directly raised the question of whether or not Article 2180 covers even establishments which are technically not schools of arts and trades, and, if so, when the offending student is supposed to be "in its custody." After an exhaustive examination of the problem, the Court has come to the conclusion that the provision in question should apply to all schools, academic as well as non-academic. Where the school is academic rather than technical or vocational in nature, responsibility for the tort committed by the student will attach to the teacher in charge of such student, following the first part of the provision. This is the general rule. In the case of establishments of arts and trades, it is the head thereof, and only he, who shall be held liable as an exception to the general rule. In other words, teachers in general shall be liable for the acts of their students except where the school is technical in nature, in which case it is the head thereof who shall be answerable. Following the canon ofreddendo singula singulis "teachers" should apply to the words "pupils and students" and "heads of establishments of arts and trades" to the word "apprentices." The Court thus conforms to the dissenting opinion expressed by Justice J.B.L. Reyes in Exconde where he said in part: I can see no sound reason for limiting Art. 1903 of the Old Civil Code to teachers of arts and trades and not to academic ones. What substantial difference is there between them insofar as concerns the proper supervision and vice over their pupils? It cannot be seriously contended that an academic teacher is exempt from the duty of watching that his pupils do not commit a tort to the detriment of third Persons, so long as they are in a position to exercise authority and Supervision over the pupil. In my opinion, in the phrase "teachers or heads of establishments of arts and trades" used in Art. 1903 of the old Civil Code, the words "arts and trades" does not qualify "teachers" but only "heads of establishments." The phrase is only an updated version of the equivalent terms "preceptores y artesanos" used in the Italian and French Civil Codes. If, as conceded by all commentators, the basis of the presumption of negligence of Art. 1903 in someculpa in vigilando that the parents, teachers, etc. are supposed to have incurred in the exercise of their authority, it would seem clear that where the parent places the child under the effective authority of the teacher, the latter, and not the parent, should be the one answerable for the torts committed while under his custody, for the very reason/that the parent is not supposed to interfere with the discipline of the school nor with the authority and supervision of the teacher while the child is under instruction. And if there is no authority, there can be no responsibility. There is really no substantial distinction between the academic and the non-academic schools insofar as torts committed by their students are concerned. The same vigilance is expected from the teacher over the students under his control and supervision, whatever the nature of the school where he is teaching. The suggestion in the Exconde and Mercado Cases is that the provision would

make the teacher or even the head of the school of arts and trades liable for an injury caused by any student in its custody but if that same tort were committed in an academic school, no liability would attach to the teacher or the school head. All other circumstances being the same, the teacher or the head of the academic school would be absolved whereas the teacher and the head of the nonacademic school would be held liable, and simply because the latter is a school of arts and trades. The Court cannot see why different degrees of vigilance should be exercised by the school authorities on the basis only of the nature of their respective schools. There does not seem to be any plausible reason for relaxing that vigilance simply because the school is academic in nature and for increasing such vigilance where the school is non-academic. Notably, the injury subject of liability is caused by the student and not by the school itself nor is it a result of the operations of the school or its equipment. The injury contemplated may be caused by any student regardless of the school where he is registered. The teacher certainly should not be able to excuse himself by simply showing that he is teaching in an academic school where, on the other hand, the head would be held liable if the school were non-academic. These questions, though, may be asked: If the teacher of the academic school is to be held answerable for the torts committed by his students, why is it the head of the school only who is held liable where the injury is caused in a school of arts and trades? And in the case of the academic or non- technical school, why not apply the rule also to the head thereof instead of imposing the liability only on the teacher? The reason for the disparity can be traced to the fact that historically the head of the school of arts and trades exercised a closer tutelage over his pupils than the head of the academic school. The old schools of arts and trades were engaged in the training of artisans apprenticed to their master who personally and directly instructed them on the technique and secrets of their craft. The head of the school of arts and trades was such a master and so was personally involved in the task of teaching his students, who usually even boarded with him and so came under his constant control, supervision and influence. By contrast, the head of the academic school was not as involved with his students and exercised only administrative duties over the teachers who were the persons directly dealing with the students. The head of the academic school had then (as now) only a vicarious relationship with the students. Consequently, while he could not be directly faulted for the acts of the students, the head of the school of arts and trades, because of his closer ties with them, could be so blamed. It is conceded that the distinction no longer obtains at present in view of the expansion of the schools of arts and trades, the consequent increase in their enrollment, and the corresponding diminution of the direct and personal contract of their heads with the students. Article 2180, however, remains unchanged. In its present state, the provision must be interpreted by the Court according to its clear and original mandate until the legislature, taking into account the charges in the situation subject to be regulated, sees fit to enact the necessary amendment. The other matter to be resolved is the duration of the responsibility of the teacher or the head of the school of arts and trades over the students. Is such responsibility co-extensive with the period when the student is actually undergoing studies during the school term, as contended by the respondents and impliedly admitted by the petitioners themselves? From a reading of the provision under examination, it is clear that while the custody requirement, to repeat Palisoc v. Brillantes, does not mean that the student must be boarding with the school authorities, it does signify that the student should be within the control and under the influence of the school authorities at the time of the occurrence of the injury. This does not necessarily mean that such, custody be co-terminous with the semester, beginning with the start of classes and ending

upon the close thereof, and excluding the time before or after such period, such as the period of registration, and in the case of graduating students, the period before the commencement exercises. In the view of the Court, the student is in the custody of the school authorities as long as he is under the control and influence of the school and within its premises, whether the semester has not yet begun or has already ended. It is too tenuous to argue that the student comes under the discipline of the school only upon the start of classes notwithstanding that before that day he has already registered and thus placed himself under its rules. Neither should such discipline be deemed ended upon the last day of classes notwithstanding that there may still be certain requisites to be satisfied for completion of the course, such as submission of reports, term papers, clearances and the like. During such periods, the student is still subject to the disciplinary authority of the school and cannot consider himself released altogether from observance of its rules. As long as it can be shown that the student is in the school premises in pursuance of a legitimate student objective, in the exercise of a legitimate student right, and even in the enjoyment of a legitimate student right, and even in the enjoyment of a legitimate student privilege, the responsibility of the school authorities over the student continues. Indeed, even if the student should be doing nothing more than relaxing in the campus in the company of his classmates and friends and enjoying the ambience and atmosphere of the school, he is still within the custody and subject to the discipline of the school authorities under the provisions of Article 2180. During all these occasions, it is obviously the teacher-in-charge who must answer for his students' torts, in practically the same way that the parents are responsible for the child when he is in their custody. The teacher-in-charge is the one designated by the dean, principal, or other administrative superior to exercise supervision over the pupils in the specific classes or sections to which they are assigned. It is not necessary that at the time of the injury, the teacher be physically present and in a position to prevent it. Custody does not connote immediate and actual physical control but refers more to the influence exerted on the child and the discipline instilled in him as a result of such influence. Thus, for the injuries caused by the student, the teacher and not the parent shag be held responsible if the tort was committed within the premises of the school at any time when its authority could be validly exercised over him. In any event, it should be noted that the liability imposed by this article is supposed to fall directly on the teacher or the head of the school of arts and trades and not on the school itself. If at all, the school, whatever its nature, may be held to answer for the acts of its teachers or even of the head thereof under the general principle ofrespondeat superior, but then it may exculpate itself from liability by proof that it had exercised the diligence of abonus paterfamilias. Such defense is, of course, also available to the teacher or the head of the school of arts and trades directly held to answer for the tort committed by the student. As long as the defendant can show that he had taken the necessary precautions to prevent the injury complained of, he can exonerate himself from the liability imposed by Article 2180, which also states that: The responsibility treated of in this article shall cease when the Persons herein mentioned prove that they observed all the diligence of a good father of a family to prevent damages. In this connection, it should be observed that the teacher will be held liable not only when he is acting in loco parentis for the law does not require that the offending student be of minority age. Unlike the parent, who wig be liable only if his child is still a minor, the teacher is held answerable by the law for the act of the student under him regardless of the student's age. Thus, in the Palisoc

Case, liability attached to the teacher and the head of the technical school although the wrongdoer was already of age. In this sense, Article 2180 treats the parent more favorably than the teacher. The Court is not unmindful of the apprehensions expressed by Justice Makalintal in his dissenting opinion in Palisoc that the school may be unduly exposed to liability under this article in view of the increasing activism among the students that is likely to cause violence and resulting injuries in the school premises. That is a valid fear, to be sure. Nevertheless, it should be repeated that, under the present ruling, it is not the school that will be held directly liable. Moreover, the defense of due diligence is available to it in case it is sought to be held answerable as principal for the acts or omission of its head or the teacher in its employ. The school can show that it exercised proper measures in selecting the head or its teachers and the appropriate supervision over them in the custody and instruction of the pupils pursuant to its rules and regulations for the maintenance of discipline among them. In almost all cases now, in fact, these measures are effected through the assistance of an adequate security force to help the teacher physically enforce those rules upon the students. Ms should bolster the claim of the school that it has taken adequate steps to prevent any injury that may be committed by its students. A fortiori, the teacher himself may invoke this defense as it would otherwise be unfair to hold him directly answerable for the damage caused by his students as long as they are in the school premises and presumably under his influence. In this respect, the Court is disposed not to expect from the teacher the same measure of responsibility imposed on the parent for their influence over the child is not equal in degree. Obviously, the parent can expect more obedience from the child because the latter's dependence on him is greater than on the teacher. It need not be stressed that such dependence includes the child's support and sustenance whereas submission to the teacher's influence, besides being coterminous with the period of custody is usually enforced only because of the students' desire to pass the course. The parent can instill more las discipline on the child than the teacher and so should be held to a greater accountability than the teacher for the tort committed by the child. And if it is also considered that under the article in question, the teacher or the head of the school of arts and trades is responsible for the damage caused by the student or apprentice even if he is already of age and therefore less tractable than the minor then there should all the more be justification to require from the school authorities less accountability as long as they can prove reasonable diligence in preventing the injury. After all, if the parent himself is no longer liable for the student's acts because he has reached majority age and so is no longer under the former's control, there is then all the more reason for leniency in assessing the teacher's responsibility for the acts of the student. Applying the foregoing considerations, the Court has arrived at the following conclusions: 1. At the time Alfredo Amadora was fatally shot, he was still in the custody of the authorities of Colegio de San Jose-Recoletos notwithstanding that the fourth year classes had formally ended. It was immaterial if he was in the school auditorium to finish his physics experiment or merely to submit his physics report for what is important is that he was there for a legitimate purpose. As previously observed, even the mere savoring of the company of his friends in the premises of the school is a legitimate purpose that would have also brought him in the custody of the school authorities. 2. The rector, the high school principal and the dean of boys cannot be held liable because none of them was the teacher-in-charge as previously defined. Each of them was exercising only a general authority over the student body and not the direct control and influence exerted by the teacher

placed in charge of particular classes or sections and thus immediately involved in its discipline. The evidence of the parties does not disclose who the teacher-in-charge of the offending student was. The mere fact that Alfredo Amadora had gone to school that day in connection with his physics report did not necessarily make the physics teacher, respondent Celestino Dicon, the teacher-incharge of Alfredo's killer. 3. At any rate, assuming that he was the teacher-in-charge, there is no showing that Dicon was negligent in enforcing discipline upon Daffon or that he had waived observance of the rules and regulations of the school or condoned their non-observance. His absence when the tragedy happened cannot be considered against him because he was not supposed or required to report to school on that day. And while it is true that the offending student was still in the custody of the teacher-in-charge even if the latter was physically absent when the tort was committed, it has not been established that it was caused by his laxness in enforcing discipline upon the student. On the contrary, the private respondents have proved that they had exercised due diligence, through the enforcement of the school regulations, in maintaining that discipline. 4. In the absence of a teacher-in-charge, it is probably the dean of boys who should be held liable especially in view of the unrefuted evidence that he had earlier confiscated an unlicensed gun from one of the students and returned the same later to him without taking disciplinary action or reporting the matter to higher authorities. While this was clearly negligence on his part, for which he deserves sanctions from the school, it does not necessarily link him to the shooting of Amador as it has not been shown that he confiscated and returned pistol was the gun that killed the petitioners' son. 5. Finally, as previously observed, the Colegio de San Jose-Recoletos cannot be held directly liable under the article because only the teacher or the head of the school of arts and trades is made responsible for the damage caused by the student or apprentice. Neither can it be held to answer for the tort committed by any of the other private respondents for none of them has been found to have been charged with the custody of the offending student or has been remiss in the discharge of his duties in connection with such custody. In sum, the Court finds under the facts as disclosed by the record and in the light of the principles herein announced that none of the respondents is liable for the injury inflicted by Pablito Damon on Alfredo Amadora that resulted in the latter's death at the auditorium of the Colegio de San JoseRecoletos on April 13, 1972. While we deeply sympathize with the petitioners over the loss of their son under the tragic circumstances here related, we nevertheless are unable to extend them the material relief they seek, as a balm to their grief, under the law they have invoked. WHEREFORE, the petition is DENIED, without any pronouncement as to costs. It is so ordered. G.R. No. 74431 November 6, 1989 PURITA MIRANDA VESTIL and AGUSTIN VESTIL, petitioners, vs. INTERMEDIATE APPELLATE COURT, DAVID UY and TERESITA UY, respondents. Pablo P. Garcia for petitioners. Roberto R. Palmares for private respondents.

CRUZ, J.: Little Theness Tan Uy was dead at the age of three. Her parents said she died because she was bitten by a dog of the petitioners, but the latter denied this, claiming they had nothing to do with the dog. The Uys sued the Vestils, who were sustained by the trial court. On appeal, the decision of the court a quo was reversed in favor of the Uys. The Vestils are now before us. They ask us to set aside the judgment of the respondent court and to reinstate that of the trial court. On July 29, 1915, Theness was bitten by a dog while she was playing with a child of the petitioners in the house of the late Vicente Miranda, the father of Purita Vestil, at F. Ramos Street in Cebu City. She was rushed to the Cebu General Hospital, where she was treated for "multiple lacerated wounds on the forehead" 1 and administered an anti-rabies vaccine by Dr. Antonio Tautjo. She was discharged after nine days but was readmitted one week later due to "vomiting of saliva." 2 The following day, on August 15, 1975, the child died. The cause of death was certified as bronchopneumonia. 3 Seven months later, the Uys sued for damages, alleging that the Vestils were liable to them as the possessors of "Andoy," the dog that bit and eventually killed their daughter. The Vestils rejected the charge, insisting that the dog belonged to the deceased Vicente Miranda, that it was a tame animal, and that in any case no one had witnessed it bite Theness. After trial, Judge Jose R. Ramolete of the Court of First Instance of Cebu sustained the defendants and dismissed the complaint. 4 The respondent court arrived at a different conclusion when the case was appealed. 5 It found that the Vestils were in possession of the house and the dog and so should be responsible under Article 2183 of the Civil Code for the injuries caused by the dog. It also held that the child had died as a result of the dog bites and not for causes independent thereof as submitted by the appellees. Accordingly, the Vestils were ordered to pay the Uys damages in the amount of P30,000.00 for the death of Theness, P12,000.00 for medical and hospitalization expenses, and P2,000.00 as attorney's fees. In the proceedings now before us, Purita Vestil insists that she is not the owner of the house or of the dog left by her father as his estate has not yet been partitioned and there are other heirs to the property. Pursuing the logic of the Uys, she claims, even her sister living in Canada would be held responsible for the acts of the dog simply because she is one of Miranda's heirs. However, that is hardly the point. What must be determined is the possession of the dog that admittedly was staying in the house in question, regardless of the ownership of the dog or of the house. Article 2183 reads as follows: The possessor of an animal or whoever may make use of the same is responsible for the damage which it may cause, although it may escape or be lost. 'This responsibility shall cease only in case the damages should come from force majeure from the fault of the person who has suffered damage. Thus, in Afialda v. Hisole, 6 a person hired as caretaker of a carabao gored him to death and his heirs thereupon sued the owner of the animal for damages. The complaint was dismissed on the ground that it was the caretaker's duty to prevent the carabao from causing injury to any one, including himself. Purita Vestil's testimony that she was not in possession of Miranda's house is hardly credible. She said that the occupants of the house left by her father were related to him ("one way or the other") and maintained themselves out of a common fund or by some kind of arrangement (on which,

however, she did not elaborate ). 7 She mentioned as many as ten of such relatives who had stayed in the house at one time or another although they did not appear to be close kin. 8 She at least implied that they did not pay any rent, presumably because of their relation with Vicente Miranda notwithstanding that she herself did not seem to know them very well. There is contrary evidence that the occupants of the house, were boarders (or more of boarders than relatives) who paid the petitioners for providing them with meals and accommodations. It also appears that Purita Vestil had hired a maid, Dolores Jumao-as, who did the cooking and cleaning in the said house for its occupants. 9 Her mother, Pacita, who was a nursemaid of Purita herself, categorically declared that the petitioners were maintaining boarders in the house where Theness was bitten by a dog. 10 Another witness, Marcial Lao, testified that he was indeed a boarder and that the Vestils were maintaining the house for business purposes. 11 And although Purita denied paying the water bills for the house, the private respondents submitted documentary evidence of her application for water connection with the Cebu Water District, which strongly suggested that she was administering the house in question. 12 While it is true that she is not really the owner of the house, which was still part of Vicente Miranda's estate, there is no doubt that she and her husband were its possessors at the time of the incident in question. She was the only heir residing in Cebu City and the most logical person to take care of the property, which was only six kilometers from her own house. 13 Moreover, there is evidence showing that she and her family regularly went to the house, once or twice weekly, according to at least one witness, 14 and used it virtually as a second house. Interestingly, her own daughter was playing in the house with Theness when the little girl was bitten by the dog. 15 The dog itself remained in the house even after the death of Vicente Miranda in 1973 and until 1975, when the incident in question occurred. It is also noteworthy that the petitioners offered to assist the Uys with their hospitalization expenses although Purita said she knew them only casually. 16 The petitioners also argue that even assuming that they were the possessors of the dog that bit Theness there was no clear showing that she died as a result thereof. On the contrary, the death certificate 17 declared that she died of broncho-pneumonia, which had nothing to do with the dog bites for which she had been previously hospitalized. The Court need not involve itself in an extended scientific discussion of the causal connection between the dog bites and the certified cause of death except to note that, first, Theness developed hydrophobia, a symptom of rabies, as a result of the dog bites, and second, that asphyxia broncho-pneumonia, which ultimately caused her death, was a complication of rabies. That Theness became afraid of water after she was bitten by the dog is established by the following testimony of Dr. Tautjo: COURT: I think there was mention of rabies in the report in the second admission? A: Now, the child was continuously vomiting just before I referred to Dr. Co earlier in the morning and then the father, because the child was asking for water, the father tried to give the child water and this child went under the bed, she did not like to drink the water and there was fright in her eyeballs. For this reason, because I was in danger there was rabies, I called Dr. Co. Q: In other words, the child had hydrophobia?
A: Yes, sir. 18

As for the link between rabies and broncho-pneumonia, the doctor had the following to say under oath:

A: Now, as 1 said before, broncho-pneumonia can result from physical, chemical and bacterial means. ... It can be the result of infection, now, so if you have any other disease which can lower your resistance you can also get pneumonia. xxx xxx xxx Q: Would you say that a person who has rabies may die of complication which is broncho-pneumonia? A: Yes. Q: For the record, I am manifesting that this book shown the witness is know as CURRENT DIANOSIS & TREATMENT, 1968 by Henry Brainerd, Sheldon Margen and Milton Chaton. Now, I invite your attention, doctor, to page 751 of this book under the title "Rabies." There is on this page, "Prognosis" as a result of rabies and it says: Once the symptoms, have appeared death inevitably occurs after 2-3 days as a result of cardiac or respiratory failure or generalized paralysis. After a positive diagnosis of rabies or after a bite by a suspected animal if the animal cannot be observed or if the bite is on the head, give rabies vaccine (duck embryo). Do you believe in this statement? A: Yes. Q: Would you say therefore that persons who have rabies may die of respiratory failure which leave in the form of bronco-pneumonia?
A: Broncho-pneumonia can be a complication of rabies. 19

On the strength of the foregoing testimony, the Court finds that the link between the dog bites and the certified cause of death has beep satisfactorily established. We also reiterate our ruling in Sison v. Sun Life Assurance Company of Canada, 20 that the death certificate is not conclusive proof of the cause of death but only of the fact of death. Indeed, the evidence of the child's hydrophobia is sufficient to convince us that she died because she was bitten by the dog even if the death certificate stated a different cause of death. The petitioner's contention that they could not be expected to exercise remote control of the dog is not acceptable. In fact, Article 2183 of the Civil Code holds the possessor liable even if the animal should "escape or be lost" and so be removed from his control. And it does not matter either that, as the petitioners also contend, the dog was tame and was merely provoked by the child into biting her. The law does not speak only of vicious animals but covers even tame ones as long as they cause injury. As for the alleged provocation, the petitioners forget that Theness was only three years old at the time she was attacked and can hardly be faulted for whatever she might have done to the animal. It is worth observing that the above defenses of the petitioners are an implied rejection of their original posture that there was no proof that it was the dog in their father's house that bit Theness. According to Manresa the obligation imposed by Article 2183 of the Civil Code is not based on the negligence or on the presumed lack of vigilance of the possessor or user of the animal causing the damage. It is based on natural equity and on the principle of social interest that he who possesses animals for his utility, pleasure or service must answer for the damage which such animal may cause. 21

We sustain the findings of the Court of Appeals and approve the monetary awards except only as to the medical and hospitalization expenses, which are reduced to P2,026.69, as prayed for in the complaint. While there is no recompense that can bring back to the private respondents the child they have lost, their pain should at least be assuaged by the civil damages to which they are entitled. WHEREFORE, the challenged decision is AFFIRMED as above modified. The petition is DENIED, with costs against the petitioners. It is so ordered. G.R. No. L-9010 March 28, 1914

J. H. CHAPMAN, plaintiff-appellant, vs. JAMES M. UNDERWOOD, defendant-appellee. Wolfson & Wolfson for appellant. Bruce, Lawrence, Ross & Block for appellee. MORELAND, J.: At the time the accident occurred, which is the basis of this action, there was a single-track street-car line running along Calle Herran, with occasional switches to allow cars to meet and pass each other. One of these switches was located at the scene of the accident. The plaintiff had been visiting his friend, a man by the name of Creveling, in front of whose house the accident happened. He desired to board a certain "San Marcelino" car coming from Santa Ana and bound for Manila. Being told by Creveling that the car was approaching, he immediately, and somewhat hurriedly, passed from the gate into the street for the purpose of signaling and boarding the car. The car was a closed one, the entrance being from the front or the rear flatform. Plaintiff attempted to board the front platform but, seeing that he could not reached it without extra exertion, stopped beside the car, facing toward the rear platform, and waited for it to come abreast of him in order to board. While in this position he was struck from behind and run over by the defendant's automobile. The defendant entered Calle Herran at Calle Peafrancia in his automobile driven by his chauffeur, a competent driver. A street car bound from Manila to Santa Ana being immediately in front of him, he followed along behind it. Just before reaching the scene of the accident the street car which was following took the switch that is, went off the main line to the left upon the switch lying alongside of the main track. Thereupon the defendant no longer followed that the street car nor went to the left, but either kept straight ahead on the main street-car track or a bit to the right. The car which the plaintiff intended to board was on the main line and bound in an opposite direction to that in which the defendant was going. When the front of the "San Marcelino" car, the one the plaintiff attempted to board, was almost in front of the defendant's automobile, defendant's driver suddenly went to the right and struck and ran over the plaintiff, as above described. The judgment of the trial court was for defendant. A careful examination of the record leads us to the conclusion that the defendant's driver was guilty of negligence in running upon and over the plaintiff. He was passing an oncoming car upon the wrong side. The plaintiff, in common out to board the car, was not obliged, for his own protection, to observe whether a car was coming upon him from his left hand. He had only to guard against those coming from the right. He knew that, according to the law of the road, no automobile or other vehicle coming from his left should pass upon his side of the car. He needed only to watch for cars coming

from his right, as they were the only ones under the law permitted to pass upon that side of the street car. The defendant, however, is not responsible for the negligence of his driver, under the facts and circumstances of this case. As we have said in the case of Johnson vs. David (5 Phil. Rep., 663), the driver does not fall within the list of persons in article 1903 of the Civil Code for whose acts the defendant would be responsible. Although in the David case the owner of the vehicle was not present at the time the alleged negligent acts were committed by the driver, the same rule applies where the owner is present, unless the negligent act of the driver are continued for such a length of time as to give the owner a reasonable opportunity to observe them and to direct his driver to desist therefrom. An owner who sits in his automobile, or other vehicle, and permits his driver to continue in a violation of the law by the performance of negligent acts, after he has had a reasonable opportunity to observe them and to direct that the driver cease therefrom, becomes himself responsible for such acts. The owner of an automobile who permits his chauffeur to drive up to Escolta, for example, at a speed of 60 miles an hour, without any effort to stop him, although he has had a reasonable opportunity to do so, becomes himself responsible, both criminally and civilly, for the results produced by the acts of his chauffeur. On the other hand, if the driver, by a sudden act of negligence, and without the owner having a reasonable opportunity to prevent the acts or its continuance, injures a person or violates the criminal law, the owner of the automobile, although present therein at the time the act was committed, is not responsible, either civilly or criminally, therefor. The act complained of must be continued in the presence of the owner for such a length a time that the owner, by his acquiescence, makes his driver's act his own. In the case before us it does not appear from the record that, from the time the automobile took the wrong side of the road to the commission of the injury, sufficient time intervened to give the defendant an opportunity to correct the act of his driver. Instead, it appears with fair clearness that the interval between the turning out to meet and pass the street car and the happening of the accident was so small as not to be sufficient to charge defendant with the negligence of the driver. Whether or not the owner of an automobile driven by a competent driver, would be responsible, whether present or not, for the negligent acts of his driver when the automobile was a part of a business enterprise, and was being driven at the time of the accident in furtherance of the owner's business, we do not now decide. The judgment appealed from is affirmed, with costs against the appellant. A.M. No. P-1657 August 27, 1981 BARTOLOME MACARAEG, complainant, vs. OSCAR BERMUDEZ, Clerk of Court, Court of Agrarian Relations, Branch VI, Paniqui, Tarlac, respondent. RESOLUTION

DE CASTRO, J.:

This is an administrative complaint filed by complainant Bartolome Macaraeg against respondent Oscar Bermudez, Clerk of Court, Court of Agrarian Relations, Branch VI, Paniqui, Tarlac for failure of the latter to transmit the records of the CAR Case No. 2628-T-73 entitled "Segundo Rapada and Mauricia de Guzman, plaintiffs, vs. Bartolome Macaraeg, et al., defendants" to the Court of Appeals within the reglementary period as provided for by Section 18, PD No. 946, which reads as follows: The Court of Agrarian Relations shall forward to the Court of Appeals the complete records of the case within a non-extendible period of fifteen (15) days from receipt of a notice of appeal, if no motions for reconsideration are filed- In the event that motions for reconsideration are filed, the records shall be forwarded to the appellate court within a like period from receipt by the party concerned of the denial of the last motion for reconsideration. (Fourth paragraph of Section 18, PD No. 946.) In his sworn complaint, complainant alleged that his counsel in the aforesaid CAR case filed on May 5, 1977 a notice of appeal with the Court of Agrarian Relations, Branch VI, Paniqui, Tarlac; that upon verification with the aforementioned court, Eufracia Macaraeg, one of the defendants in the said CAR case, found out that the records of the case were not yet forwarded to the Court of Appeals; that his counsel confronted the staff of the respondent Clerk of Court, and the former discovered that the aforesaid records were still with the Court of Agrarian Relations; that he and his counsel requested the Court of Appeals that a letter-order be forwarded to the said Court of Agrarian Relations so that the records should be transmitted to the Court of Appeals; that acceding to the foregoing request, the Court of Appeals sent to the respondent Clerk of Court a letter-order requiring the latter to forward the whole original records of the aforesaid case or a certified true copy thereof to the former within 5 days from receipt the letter-order that on June 21, 1977, his counsel found out again that the records have not as vet been transmitted to the Court of Appeals; and that it was only on June 27, 1977 that the aforesaid records were forwarded to and received by the Court of Appeals. In his answer-explanation respondent Clerk of Court averred that on May 5, 1977, he received a notice of appeal in the above- mentioned CAR Case 2628-T-73, and on May 9, 1977, he directed one of the stenographers to prepare the records for transmittal ',o the Court of Appeals; that it is the policy of the Presiding Judge of the said court that a certified true copy of the records of a case being brought on appeal should be prepared to remain with the court for reference in case a motion for execution pending appeal be filed pursuant to Rep. Act No. 5434 and PD No. 946; that an average of three to four cases are being appealed every month and because the stenographers are occupied during the hearing of cases, -it takes them ten to fifteen days to prepare a certified true copy of the records of each case; that only the original copies of the transcripts of the said case are existing; that efforts were exerted to locate copies of the transcript but to no avail; that stenographer Leonora Garcia who assisted in an the proceedings of the aforesaid case has resigned in December, 1976; that respondent Clerk of Court instructed Mr. Fontanilla to contact Mrs. Garcia personally, but she could not be contacted because she is busy with her work as an underwriter of Manila Bankers Life Insurance Company, Inc; that while preparing the certified copy of the records of the case and trying to secure the four copies of all its transcripts respondent on June 14, 1977 received a letter from the Court of Appeals directing him to transmit the original or certified true copy of the records of the aforesaid case; that on June 24, 1977, being a special public holiday in Manila, respondent delivered the said records at the Central Office of the Court of Agrarian Relations, Quezon City; that the aforesaid Central Office forwarded the records to the Court of Appeals on June 27, 1977, the next working day; that respondent had no intention to delay the transmittal of the said records to the Court of Appeals nor did he deliberately fail to comply with the provisions of PD No. 946; and that this instant administrative complaint is a simple case of harassment against the respondent because the herein complainant and Eufracia Baluyot are among the landowners who lost in the said case in favor of their tenants.

We find that respondent Clerk of Court may not be fully exonerated as he was remiss in supervising his subordinates. Stenographer Leonora Garcia was under his supervision as Clerk of Court. The respondent should have instructed Leonora Garcia to transcribe all her stenographic notes before she resigned from her position as stenographer or at least, made an effort to convince her to transcribe the stenographic notes during Saturdays and Sundays after she had actually resigned from her said position. Respondent's failure to exercise closer supervision over all the stenographers, in particular, Leonora Garcia cannot be excused. The principle of command responsibility or "respondent al superior" however, may not be made to apply in an absolute manner because even the closest control or supervision over subordinates could not fully and absolutely insure that they would not commit negligence in the performance of their duties. 1 Respondent cannot be expected to be at all times watching and supervising continuously the performance of duties of his subordinates since the latter are presumed to be responsible public servants. Although respondent cannot escape responsibility for his failure to exercise closer supervision over his subordinates and in not prescribing an office procedure by which the complete records of a case shall be forwarded to the Court of Appeals within the reglementary period as provided for by Section 18, PD No. 946, he deserves some degree of leniency. Efforts were exerted by respondent to get in touch with Leonora Garcia but the latter could not be located, for she was so busy as an underwriter of Manila Bankers Life Insurance Company, Inc. Moreover, except for the resultant delay in the transmittal of the above-mentioned records, there was no appreciable harm caused thereby to the complainant since the aforesaid records were forwarded to the Court of Appeals on June 27, 1977, one month and 22 days after the receipt of notice on appeal dated May 5,1977. WHEREFORE, respondent Clerk of Court is hereby admonished to exercise closer supervision and greater vigilance over his subordinates in the performance of their duties, with the warning that the commission of the same or a similar irregularity in the future will be dealth with more severely. SO ORDERED. G.R. No. L-29803 September 14, 1979 LEOPOLDO POBLETE, plaintiff-appellant, vs. DONATO FABROS and GODOFREDO DE LA CRUZ, defendants-appellees. Nere C. Cordova for appellant. F.L. Isidro for appellees.

DE CASTRO, J.: This is an action for damages, arising from a vehicular accident, filed by the plaintiff Godofredo Poblete as owner of the damaged taxicab against the driver and owner of the allegedly offending vehicle, Donato Fabros and Godofredo de la Cruz, respectively. After trial on the merits, and the case submitted for decision, the trial court, the Court of First Instance of Davao, Judge Vicente Cusi, Jr., presiding, dismissed the case on the ground that from

the allegation of the complaint, the action is one to hold Donato Fabros, as the employer of the allegedly negligent driver, Godofredo de la Cruz, subsidiarily liable for the damage caused the plaintiff, and is, therefore, premature, there having been no criminal action filed against the driver who had died during the pendency of the case at bar, and, in effect, states no cause of action. A motion for reconsideration was filed to the order of dismissal, but to no avail. Hence, this appeal. The question raised is whether on the basis of the allegation of the complaint, the action is one to enforce the subsidiary liability of the employer of the negligent driver as provided in Article 103 of the Revised Penal Code, as held by the court a quo, or it is an action based on quasi-delict. In the first case, the action would be premature and would, accordingly, be wanting in a cause of action before a judgment of conviction has been rendered against the negligent driver, for, while a separate civil action may be filed for damages arising from the criminal offense of the accused for negligence, upon proper reservation of said action (Section 2, Rule III, Rules of Court), the same may not be heard separately in advance or ahead of the criminal action. While in the second case, the action, being for liability based on quasi-delict, not for liability arising from crime, may proceed independently from the criminal action. It is also for a different purpose, the liability sought to be imposed on the employer being a primary and direct liability, not merely subsidiary. Civil liability for quasi-delict and that arising out of a crime are clearly different and distinct from each other, as lucidly demonstrated and discussed in Barredo vs. Garcia, et al., 78 Phil. 607. Examining the allegations of the complaints, to determine what is made the basis thereof for the relief sought, which is to impose a "joint and several" liability on the defendants (p. 5 Record on Appeal; Page 26, Rollo), there is absolutely no reason to exclude and rule out, as the court a quo did, the fact that the action is one based onquasi delict and hold, as again the court did, that the action is based on the criminal offense of negligence, as defined in the Revised Penal Code, committed by the driver alone, and concluding that the purpose of the action is to impose the subsidiary liability on the employer as provided in the same Code. The court a quo said: As it is, the complaint really states no cause of action against Donato Fabros in his capacity as employer of Godofredo de la Cruz. Stated differently, the complaint against Donato Fabros is premature, because he is only subsidiarily liable under the Penal Code. His subsidiary liability should not be litigated in the civil action against de la Cruz. It follows that the third-party complaint that he filed is also premature. From the above observation of the Court, it is crystal clear that the court itself has found that the employer-employee relation of the two defendants has been sufficiently alleged; otherwise, it would have no basis for saying that the complaint is "against Donato Fabros in his capacity as employer of Godofredo de la Cruz." The defendant Donato Fabros has himself correctly perceived the basis of the complaint against him, as one based on quasi-delict, for instead of filing a motion for a bill of particulars if he deemed the allegations vague or ambiguous, he interposed in his answer the defense of a "due diligence of a good father of a family in the selection, employment and supervision of his driver." (Page 8, Record on Appeal; Page 26, Rollo). In the second place, in alluding to the subsidiary liability of the employer, Donato Fabros, the court a quo has, likewise, found sufficiently alleged negligence as the basis for the action. The complaint expressly and clearly alleges that the accident was "due solely to the gross negligence, carelessness and unskillful driving of defendant Godofredo de la Cruz" (Page 3, Record on Appeal, Page 20, Rollo).

With the allegation of negligence against the driver, Godofredo de la Cruz, and that of an employeremployee relation between him and his co-defendant, Donato Fabros, the complaint clearly and unmistakably makes out a case based on quasi-delict, as explicitly provided in Article 2180 of the Civil Code which, inter alia, provides: ... The owners and managers of an establishment or enterprise are likewise responsible for damages caused by their employees in the service of the branches in which the latter are employed or on the occasion of their functions. What needs only to be alleged under the aforequoted provision is that the employee (driver) has, by his negligence (quasi-delict) caused damage to make the employer, likewise, responsible for the tortious act of the employee, and his liability is, as earlier observed, primary and solidary. (Bachrach Motor Co. vs. Gamboa, L-10296, May 21, 1957; Malipol vs. Tan, 55 SCRA 202: Barredo vs. Garcia and Almario, 73 Phil. 607; Vinluan vs. Court of Appeals, et al., 16 SCRA 742; Anuran, et al. vs. Buno et al. 17 SCRA 224). It is such a firmly established principle, as to have virtually formed part of the 'law itself, that the negligence of the employee gives rise to the presumption of negligence on the part of the employer. This is the presumed negligence in the selection and supervision of the employee. The theory of presumed negligence, in contrast with the American doctrine of respondent superior, where the negligence of the employee is conclusively presumed to be the negligence of the employer, is clearly deducible from the last paragraph of Article 2180 of the Civil Code which provides that the responsibility therein mentioned shall cease if the employers prove that they observed all the diligence of a good father of a family to prevent damages (12 Manresa, 657; Balica vs. Litonjua and Leynes, 30 Phil. 624; Cangco vs. Manila Railroad Co., 38 Phil. 768), as observed in the same cases just cited. From what has been said, the error of the court a quo in dismissing the case on his mistaken notion that the action is based on crime, not quasi-delict, becomes very patent. How the court concluded that the action is to enforce the subsidiary liability of Donato Fabros as the employer of the negligent driver Godofredo de la Cruz is inconceivable, with the plain and explicit prayer of the complaint to declare the defendants "jointly and severally" liable for damages, a concept antagonistic to that of subsidiary liability. The death of defendant, Godofredo de la Cruz, the driver, is therefore, no hindrance to the present action, at least as against the employer, Donato Fabros, taking its course to final judgment, which the court a quo should have rendered, the trial of the case having been terminated, instead of dismissing the case, without even a motion to dismiss, with the evidence, in an probability, supportive of an action on quasi-delict, which the pleadings, both the complaint and the answer, raised as the specific issue involved and as joined by said pleadings. A word of advice at least as a reminder, may be meet at this juncture, for judges to give a deeper study and reflection in the disposition of cases, so that undue delay which could very well be avoided, as in this case, had the judge been more circumspect and analytical, would not cause injustice to litigants, under the familiar maxim that justice delayed is justice denied, which should constantly sound its stern warning to all dispensers of justice. WHEREFORE, the order of dismissal dated April 17, 1968 is hereby set aside, and let this case be remanded to the court of origin for the rendition of the judgment on the merits based on the evidence adduced during the trial. This judgment shall be immediately executory upon its promulgation. G.R. No. L-52179 April 8, 1991

MUNICIPALITY OF SAN FERNANDO, LA UNION, petitioner vs. HON. JUDGE ROMEO N. FIRME, JUANA RIMANDO-BANIA, IAUREANO BANIA, JR., SOR MARIETA BANIA, MONTANO BANIA, ORJA BANIA, AND LYDIA R. BANIA, respondents. Mauro C. Cabading, Jr. for petitioner. Simeon G. Hipol for private respondent.

MEDIALDEA, J.:p This is a petition for certiorari with prayer for the issuance of a writ of preliminary mandatory injunction seeking the nullification or modification of the proceedings and the orders issued by the respondent Judge Romeo N. Firme, in his capacity as the presiding judge of the Court of First Instance of La Union, Second Judicial District, Branch IV, Bauang, La Union in Civil Case No. 107BG, entitled "Juana Rimando Bania, et al. vs. Macario Nieveras, et al." dated November 4, 1975; July 13, 1976; August 23,1976; February 23, 1977; March 16, 1977; July 26, 1979; September 7, 1979; November 7, 1979 and December 3, 1979 and the decision dated October 10, 1979 ordering defendants Municipality of San Fernando, La Union and Alfredo Bislig to pay, jointly and severally, the plaintiffs for funeral expenses, actual damages consisting of the loss of earning capacity of the deceased, attorney's fees and costs of suit and dismissing the complaint against the Estate of Macario Nieveras and Bernardo Balagot. The antecedent facts are as follows: Petitioner Municipality of San Fernando, La Union is a municipal corporation existing under and in accordance with the laws of the Republic of the Philippines. Respondent Honorable Judge Romeo N. Firme is impleaded in his official capacity as the presiding judge of the Court of First Instance of La Union, Branch IV, Bauang, La Union. While private respondents Juana Rimando-Bania, Laureano Bania, Jr., Sor Marietta Bania, Montano Bania, Orja Bania and Lydia R. Bania are heirs of the deceased Laureano Bania Sr. and plaintiffs in Civil Case No. 107-Bg before the aforesaid court. At about 7 o'clock in the morning of December 16, 1965, a collision occurred involving a passenger jeepney driven by Bernardo Balagot and owned by the Estate of Macario Nieveras, a gravel and sand truck driven by Jose Manandeg and owned by Tanquilino Velasquez and a dump truck of the Municipality of San Fernando, La Union and driven by Alfredo Bislig. Due to the impact, several passengers of the jeepney including Laureano Bania Sr. died as a result of the injuries they sustained and four (4) others suffered varying degrees of physical injuries. On December 11, 1966, the private respondents instituted a compliant for damages against the Estate of Macario Nieveras and Bernardo Balagot, owner and driver, respectively, of the passenger jeepney, which was docketed Civil Case No. 2183 in the Court of First Instance of La Union, Branch I, San Fernando, La Union. However, the aforesaid defendants filed a Third Party Complaint against the petitioner and the driver of a dump truck of petitioner. Thereafter, the case was subsequently transferred to Branch IV, presided over by respondent judge and was subsequently docketed as Civil Case No. 107-Bg. By virtue of a court order dated May 7, 1975, the private respondents amended the complaint wherein the petitioner and its regular employee, Alfredo Bislig were impleaded for the first time as defendants. Petitioner filed its answer

and raised affirmative defenses such as lack of cause of action, non-suability of the State, prescription of cause of action and the negligence of the owner and driver of the passenger jeepney as the proximate cause of the collision. In the course of the proceedings, the respondent judge issued the following questioned orders, to wit: (1) Order dated November 4, 1975 dismissing the cross-claim against Bernardo Balagot; (2) Order dated July 13, 1976 admitting the Amended Answer of the Municipality of San Fernando, La Union and Bislig and setting the hearing on the affirmative defenses only with respect to the supposed lack of jurisdiction; (3) Order dated August 23, 1976 deferring there resolution of the grounds for the Motion to Dismiss until the trial; (4) Order dated February 23, 1977 denying the motion for reconsideration of the order of July 13, 1976 filed by the Municipality and Bislig for having been filed out of time; (5) Order dated March 16, 1977 reiterating the denial of the motion for reconsideration of the order of July 13, 1976; (6) Order dated July 26, 1979 declaring the case deemed submitted for decision it appearing that parties have not yet submitted their respective memoranda despite the court's direction; and (7) Order dated September 7, 1979 denying the petitioner's motion for reconsideration and/or order to recall prosecution witnesses for cross examination. On October 10, 1979 the trial court rendered a decision, the dispositive portion is hereunder quoted as follows: IN VIEW OF ALL OF (sic) THE FOREGOING, judgment is hereby rendered for the plaintiffs, and defendants Municipality of San Fernando, La Union and Alfredo Bislig are ordered to pay jointly and severally, plaintiffs Juana Rimando-Bania, Mrs. Priscilla B. Surell, Laureano Bania Jr., Sor Marietta Bania, Mrs. Fe B. Soriano, Montano Bania, Orja Bania and Lydia B. Bania the sums of P1,500.00 as funeral expenses and P24,744.24 as the lost expected earnings of the late Laureano Bania Sr., P30,000.00 as moral damages, and P2,500.00 as attorney's fees. Costs against said defendants. The Complaint is dismissed as to defendants Estate of Macario Nieveras and Bernardo Balagot. SO ORDERED. (Rollo, p. 30) Petitioner filed a motion for reconsideration and for a new trial without prejudice to another motion which was then pending. However, respondent judge issued another order dated November 7, 1979

denying the motion for reconsideration of the order of September 7, 1979 for having been filed out of time. Finally, the respondent judge issued an order dated December 3, 1979 providing that if defendants municipality and Bislig further wish to pursue the matter disposed of in the order of July 26, 1979, such should be elevated to a higher court in accordance with the Rules of Court. Hence, this petition. Petitioner maintains that the respondent judge committed grave abuse of discretion amounting to excess of jurisdiction in issuing the aforesaid orders and in rendering a decision. Furthermore, petitioner asserts that while appeal of the decision maybe available, the same is not the speedy and adequate remedy in the ordinary course of law. On the other hand, private respondents controvert the position of the petitioner and allege that the petition is devoid of merit, utterly lacking the good faith which is indispensable in a petition for certiorari and prohibition. (Rollo, p. 42.) In addition, the private respondents stress that petitioner has not considered that every court, including respondent court, has the inherent power to amend and control its process and orders so as to make them conformable to law and justice. (Rollo, p. 43.) The controversy boils down to the main issue of whether or not the respondent court committed grave abuse of discretion when it deferred and failed to resolve the defense of non-suability of the State amounting to lack of jurisdiction in a motion to dismiss. In the case at bar, the respondent judge deferred the resolution of the defense of non-suability of the State amounting to lack of jurisdiction until trial. However, said respondent judge failed to resolve such defense, proceeded with the trial and thereafter rendered a decision against the municipality and its driver. The respondent judge did not commit grave abuse of discretion when in the exercise of its judgment it arbitrarily failed to resolve the vital issue of non-suability of the State in the guise of the municipality. However, said judge acted in excess of his jurisdiction when in his decision dated October 10, 1979 he held the municipality liable for the quasi-delict committed by its regular employee. The doctrine of non-suability of the State is expressly provided for in Article XVI, Section 3 of the Constitution, to wit: "the State may not be sued without its consent." Stated in simple parlance, the general rule is that the State may not be sued except when it gives consent to be sued. Consent takes the form of express or implied consent. Express consent may be embodied in a general law or a special law. The standing consent of the State to be sued in case of money claims involving liability arising from contracts is found in Act No. 3083. A special law may be passed to enable a person to sue the government for an alleged quasidelict, as in Merritt v. Government of the Philippine Islands (34 Phil 311). (see United States of America v. Guinto, G.R. No. 76607, February 26, 1990, 182 SCRA 644, 654.) Consent is implied when the government enters into business contracts, thereby descending to the level of the other contracting party, and also when the State files a complaint, thus opening itself to a counterclaim. (Ibid)

Municipal corporations, for example, like provinces and cities, are agencies of the State when they are engaged in governmental functions and therefore should enjoy the sovereign immunity from suit. Nevertheless, they are subject to suit even in the performance of such functions because their charter provided that they can sue and be sued. (Cruz, Philippine Political Law, 1987 Edition, p. 39) A distinction should first be made between suability and liability. "Suability depends on the consent of the state to be sued, liability on the applicable law and the established facts. The circumstance that a state is suable does not necessarily mean that it is liable; on the other hand, it can never be held liable if it does not first consent to be sued. Liability is not conceded by the mere fact that the state has allowed itself to be sued. When the state does waive its sovereign immunity, it is only giving the plaintiff the chance to prove, if it can, that the defendant is liable." (United States of America vs. Guinto, supra, p. 659-660) Anent the issue of whether or not the municipality is liable for the torts committed by its employee, the test of liability of the municipality depends on whether or not the driver, acting in behalf of the municipality, is performing governmental or proprietary functions. As emphasized in the case of Torio vs. Fontanilla (G. R. No. L-29993, October 23, 1978. 85 SCRA 599, 606), the distinction of powers becomes important for purposes of determining the liability of the municipality for the acts of its agents which result in an injury to third persons. Another statement of the test is given in City of Kokomo vs. Loy, decided by the Supreme Court of Indiana in 1916, thus: Municipal corporations exist in a dual capacity, and their functions are twofold. In one they exercise the right springing from sovereignty, and while in the performance of the duties pertaining thereto, their acts are political and governmental. Their officers and agents in such capacity, though elected or appointed by them, are nevertheless public functionaries performing a public service, and as such they are officers, agents, and servants of the state. In the other capacity the municipalities exercise a private, proprietary or corporate right, arising from their existence as legal persons and not as public agencies. Their officers and agents in the performance of such functions act in behalf of the municipalities in their corporate or individual capacity, and not for the state or sovereign power." (112 N.E., 994-995) (Ibid, pp. 605-606.) It has already been remarked that municipal corporations are suable because their charters grant them the competence to sue and be sued. Nevertheless, they are generally not liable for torts committed by them in the discharge of governmental functions and can be held answerable only if it can be shown that they were acting in a proprietary capacity. In permitting such entities to be sued, the State merely gives the claimant the right to show that the defendant was not acting in its governmental capacity when the injury was committed or that the case comes under the exceptions recognized by law. Failing this, the claimant cannot recover. (Cruz, supra, p. 44.) In the case at bar, the driver of the dump truck of the municipality insists that "he was on his way to the Naguilian river to get a load of sand and gravel for the repair of San Fernando's municipal streets." (Rollo, p. 29.) In the absence of any evidence to the contrary, the regularity of the performance of official duty is presumed pursuant to Section 3(m) of Rule 131 of the Revised Rules of Court. Hence, We rule that the driver of the dump truck was performing duties or tasks pertaining to his office.

We already stressed in the case of Palafox, et. al. vs. Province of Ilocos Norte, the District Engineer, and the Provincial Treasurer (102 Phil 1186) that "the construction or maintenance of roads in which the truck and the driver worked at the time of the accident are admittedly governmental activities." After a careful examination of existing laws and jurisprudence, We arrive at the conclusion that the municipality cannot be held liable for the torts committed by its regular employee, who was then engaged in the discharge of governmental functions. Hence, the death of the passenger tragic and deplorable though it may be imposed on the municipality no duty to pay monetary compensation. All premises considered, the Court is convinced that the respondent judge's dereliction in failing to resolve the issue of non-suability did not amount to grave abuse of discretion. But said judge exceeded his jurisdiction when it ruled on the issue of liability. ACCORDINGLY, the petition is GRANTED and the decision of the respondent court is hereby modified, absolving the petitioner municipality of any liability in favor of private respondents. SO ORDERED. G.R. No. 61516 March 21, 1989 FLORENTINA A. GUILATCO, petitioner, vs. CITY OF DAGUPAN, and the HONORABLE COURT OF APPEALS, respondents. Nolan R. Evangelista for petitioner. The City Legal Officer for respondents.

SARMIENTO, J.: In a civil action 1 for recovery of damages filed by the petitioner Florentina A. Guilatco, the following judgment was rendered against the respondent City of Dagupan: xxx (1) Ordering defendant City of Dagupan to pay plaintiff actual damages in the amount of P 15,924 (namely P8,054.00 as hospital, medical and other expenses [Exhs. H to H-60], P 7,420.00 as lost income for one (1) year [Exh. F] and P 450.00 as bonus). P 150,000.00 as moral damages, P 50,000.00 as exemplary damages, and P 3,000.00 as attorney's fees, and litigation expenses, plus costs and to appropriate through its Sangguniang Panglunsod (City Council) said amounts for said purpose; (2) Dismissing plaintiffs complaint as against defendant City Engr. Alfredo G. Tangco; and
(3) Dismissing the counterclaims of defendant City of Dagupan and defendant City Engr. Alfredo G. Tangco, for lack of merit. 2

The facts found by the trial court are as follows: 3 It would appear from the evidences that on July 25, 1978, herein plaintiff, a Court Interpreter of Branch III, CFI--Dagupan City, while she was about to board a motorized tricycle at a sidewalk located at Perez Blvd. (a National Road, under the control and supervision of the City of Dagupan) accidentally fell into a manhole located on said sidewalk, thereby causing her right leg to be fractured. As a result thereof, she had to be hospitalized, operated on, confined, at first at the Pangasinan Provincial Hospital, from July 25 to August 3, 1978 (or for a period of 16 days). She also incurred hospitalization, medication and other expenses to the tune of P 8,053.65 (Exh. H to H-60) or a total of P 10,000.00 in all, as other receipts were either lost or misplaced; during the period of her confinement in said two hospitals, plaintiff suffered severe or excruciating pain not only on her right leg which was fractured but also on all parts of her body; the pain has persisted even after her discharge from the Medical City General Hospital on October 9, 1978, to the present. Despite her discharge from the Hospital plaintiff is presently still wearing crutches and the Court has actually observed that she has difficulty in locomotion. From the time of the mishap on July 25, 1978 up to the present, plaintiff has not yet reported for duty as court interpreter, as she has difficulty of locomotion in going up the stairs of her office, located near the city hall in Dagupan City. She earns at least P 720.00 a month consisting of her monthly salary and other means of income, but since July 25, 1978 up to the present she has been deprived of said income as she has already consumed her accrued leaves in the government service. She has lost several pounds as a result of the accident and she is no longer her former jovial self, she has been unable to perform her religious, social, and other activities which she used to do prior to the incident. Dr. Norberto Felix and Dr. Dominado Manzano of the Provincial Hospital, as well as Dr. Antonio Sison of the Medical City General Hospital in Mandaluyong Rizal (Exh. I; see also Exhs. F, G, G-1 to G-19) have confirmed beyond shadow of any doubt the extent of the fracture and injuries sustained by the plaintiff as a result of the mishap. On the other hand, Patrolman Claveria, De Asis and Cerezo corroborated the testimony of the plaintiff regarding the mishap and they have confirmed the existence of the manhole (Exhs. A, B, C and sub-exhibits) on the sidewalk along Perez Blvd., at the time of the incident on July 25, 1978 which was partially covered by a concrete flower pot by leaving gaping hole about 2 ft. long by 1 1/2 feet wide or 42 cms. wide by 75 cms. long by 150 cms. deep (see Exhs. D and D-1). Defendant Alfredo Tangco, City Engineer of Dagupan City and admittedly ex-officio Highway Engineer, City Engineer of the Public Works and Building Official for Dagupan City, admitted the existence of said manhole along the sidewalk in Perez Blvd., admittedly a National Road in front of the Luzon Colleges. He also admitted that said manhole (there are at least 11 in all in Perez Blvd.) is owned by the National Government and the sidewalk on which they are found along Perez Blvd. are also owned by the National Government. But as City Engineer of Dagupan City, he supervises the maintenance of said manholes or drainage system and sees to it that they are properly covered, and the job is specifically done by his subordinates, Mr. Santiago de Vera (Maintenance Foreman) and Engr. Ernesto Solermo also a maintenance Engineer. In his answer defendant Tangco expressly admitted in par. 71 thereof, that in his capacity as ex-officio Highway Engineer for Dagupan City he exercises supervision and control over National roads, including the Perez Blvd. where the incident happened.

On appeal by the respondent City of Dagupan, the appellate court 4 reversed the lower court findings on the ground that no evidence was presented by the plaintiff- appellee to prove that the City of Dagupan had "control or supervision" over Perez Boulevard. 5 The city contends that Perez Boulevard, where the fatal drainage hole is located, is a national road that is not under the control or supervision of the City of Dagupan. Hence, no liability should attach to the city. It submits that it is actually the Ministry of Public Highways that has control or supervision through the Highway Engineer which, by mere coincidence, is held concurrently by the same person who is also the City Engineer of Dagupan. After examination of the findings and conclusions of the trial court and those of the appellate court, as well as the arguments presented by the parties, we agree with those of the trial court and of the petitioner. Hence, we grant the petition. In this review on certiorari, we have simplified the errors assigned by the petitioner to a single issue: whether or not control or supervision over a national road by the City of Dagupan exists, in effect binding the city to answer for damages in accordance with article 2189 of the Civil Code. The liability of public corporations for damages arising from injuries suffered by pedestrians from the defective condition of roads is expressed in the Civil Code as follows: Article 2189. Provinces, cities and municipalities shall be liable for damages for the death of, or injuries suffered by, any person by reason of the defective condition of roads, streets, bridges, public buildings, and other public works under their control or supervision. It is not even necessary for the defective road or street to belong to the province, city or municipality for liability to attach. The article only requires that either control or supervision is exercised over the defective road or street. 6 In the case at bar, this control or supervision is provided for in the charter of Dagupan and is exercised through the City Engineer who has the following duties: Sec. 22. The City Engineer--His powers, duties and compensation-There shall be a city engineer, who shall be in charge of the department of Engineering and Public Works. He shall receive a salary of not exceeding three thousand pesos per annum. He shall have the following duties: xxx (j) He shall have the care and custody of the public system of waterworks and sewers, and all sources of water supply, and shall control, maintain and regulate the use of the same, in accordance with the ordinance relating thereto; shall inspect and regulate the use of all private systems for supplying water to the city and its inhabitants, and all private sewers, and their connection with the public sewer system. xxx The same charter of Dagupan also provides that the laying out, construction and improvement of streets, avenues and alleys and sidewalks, and regulation of the use thereof, may be legislated by

the Municipal Board . 7 Thus the charter clearly indicates that the city indeed has supervision and control over the sidewalk where the open drainage hole is located. The express provision in the charter holding the city not liable for damages or injuries sustained by persons or property due to the failure of any city officer to enforce the provisions of the charter, can not be used to exempt the city, as in the case at bar.8 The charter only lays down general rules regulating the liability of the city. On the other hand article 2189 appliesin particular to the liability arising from "defective streets, public buildings and other public works." 9 The City Engineer, Mr. Alfredo G. Tangco, admits that he exercises control or supervision over the said road. But the city can not be excused from liability by the argument that the duty of the City Engineer to supervise or control the said provincial road belongs more to his functions as an exofficio Highway Engineer of the Ministry of Public Highway than as a city officer. This is because while he is entitled to an honorarium from the Ministry of Public Highways, his salary from the city government substantially exceeds the honorarium. We do not agree. Alfredo G. Tangco "(i)n his official capacity as City Engineer of Dagupan, as Ex- Officio Highway Engineer, as Ex-Officio City Engineer of the Bureau of Public Works, and, last but not the least, as Building Official for Dagupan City, receives the following monthly compensation: P 1,810.66 from Dagupan City; P 200.00 from the Ministry of Public Highways; P 100.00 from the Bureau of Public Works and P 500.00 by virtue of P.D. 1096, respectively." 10This function of supervision over streets, public buildings, and other public works pertaining to the City Engineer is coursed through a Maintenance Foreman and a Maintenance Engineer.11 Although these last two officials are employees of the National Government, they are detailed with the City of Dagupan and hence receive instruction and supervision from the city through the City Engineer. There is, therefore, no doubt that the City Engineer exercises control or supervision over the public works in question. Hence, the liability of the city to the petitioner under article 2198 of the Civil Code is clear. Be all that as it may, the actual damages awarded to the petitioner in the amount of P 10,000.00 should be reduced to the proven expenses of P 8,053.65 only. The trial court should not have rounded off the amount. In determining actual damages, the court can not rely on "speculation, conjecture or guess work" as to the amount. Without the actual proof of loss, the award of actual damages becomes erroneous. 12 On the other hand, moral damages may be awarded even without proof of pecuniary loss, inasmuch as the determination of the amount is discretionary on the court.13 Though incapable of pecuniary estimation, moral damages are in the nature of an award to compensate the claimant for actual injury suffered but which for some reason can not be proven. However, in awarding moral damages, the following should be taken into consideration: (1) First, the proximate cause of the injury must be the claimee's acts.14 (2) Second, there must be compensatory or actual damages as satisfactory proof of the factual basis for damages.15

(3) Third, the award of moral damages must be predicated on any of the cases enumerated in the Civil Code. 16 In the case at bar, the physical suffering and mental anguish suffered by the petitioner were proven. Witnesses from the petitioner's place of work testified to the degeneration in her disposition-from being jovial to depressed. She refrained from attending social and civic activities.17 Nevertheless the award of moral damages at P 150,000.00 is excessive. Her handicap was not permanent and disabled her only during her treatment which lasted for one year. Though evidence of moral loss and anguish existed to warrant the award of damages,18 the moderating hand of the law is called for. The Court has time and again called attention to the reprehensible propensity of trial judges to award damages without basis,19 resulting in exhorbitant amounts.20 Although the assessment of the amount is better left to the discretion of the trial court 21 under preceding jurisprudence, the amount of moral damages should be reduced to P 20,000.00. As for the award of exemplary damages, the trial court correctly pointed out the basis:
To serve as an example for the public good, it is high time that the Court, through this case, should serve warning to the city or cities concerned to be more conscious of their duty and responsibility to their constituents, especially when they are engaged in construction work or when there are manholes on their sidewalks or streets which are uncovered, to immediately cover the same, in order to minimize or prevent accidents to the poor pedestrians.22

Too often in the zeal to put up "public impact" projects such as beautification drives, the end is more important than the manner in which the work is carried out. Because of this obsession for showing off, such trivial details as misplaced flower pots betray the careless execution of the projects, causing public inconvenience and inviting accidents. Pending appeal by the respondent City of Dagupan from the trial court to the appellate court, the petitioner was able to secure an order for garnishment of the funds of the City deposited with the Philippine National Bank, from the then presiding judge, Hon. Willelmo Fortun. This order for garnishment was revoked subsequently by the succeeding presiding judge, Hon. Romeo D. Magat, and became the basis for the petitioner's motion for reconsideration which was also denied. 23 We rule that the execution of the judgment of the trial court pending appeal was premature. We do not find any good reason to justify the issuance of an order of execution even before the expiration of the time to appeal .24 WHEREFORE, the petition is GRANTED. The assailed decision and resolution of the respondent Court of Appeals are hereby REVERSED and SET ASIDE and the decision of the trial court, dated March 12, 1979 and amended on March 13, 1979, is hereby REINSTATED with the indicated modifications as regards the amounts awarded: (1) Ordering the defendant City of Dagupan to pay the plaintiff actual damages in the amount of P 15,924 (namely P 8,054.00 as hospital, medical and other expenses; P 7,420.00 as lost income for one (1) year and P 450.00 as bonus); P 20,000.00 as moral damages and P 10,000.00 as exemplary damages. The attorney's fees of P 3,000.00 remain the same.

SO ORDERED. G.R. No. 71159 November 15, 1989 CITY OF MANILA, and EVANGELINE SUVA, petitioners, vs. HON. INTERMEDIATE APPELLATE COURT, IRENE STO. DOMINGO and for and in behalf of her minor children, VIVENCIO, JR., IRIS, VERGEL and IMELDA, all surnamed STO. DOMINGO, respondents. The City Legal Officer for petitioners. Jose M. Castillo for respondents.

PARAS, J.: This is a petition for review on certiorari seeking to reverse and set aside: (a) the Decision of the Intermediate Appellate Court now Court of Appeals 1 promulgated on May 31, 1984 in AC-G.R. CV No. 00613-R entitled Irene Sto. Domingo et al., v. City Court of Manila et al., modifying the decision of the then Court of First Instance of Manila, Branch VIII 2 in Civil Case No. 121921 ordering the defendants (herein petitioners,) to give plaintiffs (herein private respondents) the right to use a burial lot in the North Cemetery corresponding to the unexpired term of the fully paid lease sued upon, to search the remains of the late Vivencio Sto. Domingo, Sr. and to bury the same in a substitute lot to be chosen by the plaintiffs; and (b) the Resolution of the Court of Appeals dated May 28, 1985 denying petitioner's motion for reconsideration. As found by the Court of Appeals and the trial court, the undisputed facts of the case are as follows: Brought on February 22, 1979 by the widow and children of the late Vivencio Sto. Domingo, Sr. was this action for damages against the City of Manila; Evangeline Suva of the City Health Office; Sergio Mallari, officer-in-charge of the North Cemetery; and Joseph Helmuth, the latter's predecessor as officer-in-charge of the said burial grounds owned and operated by the City Government of Manila. Vivencio Sto. Domingo, Sr. deceased husband of plaintiff Irene Sto. Domingo and father of the litigating minors, died on June 4,1971 and buried on June 6,1971 in Lot No. 159, Block No. 194 of the North Cemetery which lot was leased by the city to Irene Sto. Domingo for the period from June 6, 1971 to June 6, 2021 per Official Receipt No. 61307 dated June 6, 1971 (see Exh. A) with an expiry date of June 6, 2021 (see Exh. A-1). Full payment of the rental therefor of P50.00 is evidenced by the said receipt which appears to be regular on its face. Apart from the aforementioned receipt, no other document was executed to embody such lease over the burial lot in question. In fact, the burial record for Block No. 194 of Manila North Cemetery (see Exh. 2) in which subject Lot No. 159 is situated does not reflect the term of duration of the lease thereover in favor of the Sto. Domingos. Believing in good faith that, in accordance with Administrative Order No. 5, Series of 1975, dated March 6, 1975, of the City Mayor of Manila (See Exh. 1) prescribing uniform procedure and guidelines in the processing of documents pertaining to and

for the use and disposition of burial lots and plots within the North Cemetery, etc., subject Lot No. 159 of Block 194 in which the mortal remains of the late Vivencio Sto. Domingo were laid to rest, was leased to the bereaved family for five (5) years only, subject lot was certified on January 25, 1978 as ready for exhumation. On the basis of such certification, the authorities of the North Cemetery then headed by defendant Joseph Helmuth authorized the exhumation and removal from subject burial lot the remains of the late Vivencio Sto. Domingo, Sr., placed the bones and skull in a bag or sack and kept the same in the depository or bodega of the cemetery y Subsequently, the same lot in question was rented out to another lessee so that when the plaintiffs herein went to said lot on All Souls Day in their shock, consternation and dismay, that the resting place of their dear departed did not anymore bear the stone marker which they lovingly placed on the tomb. Indignant and disgusted over such a sorrowful finding, Irene Sto. Domingo lost no time in inquiring from the officer-in-charge of the North Cemetery, defendant Sergio Mallari, and was told that the remains of her late husband had been taken from the burial lot in question which was given to another lessee. Irene Sto. Domingo was also informed that she can look for the bones of her deceased husband in the warehouse of the cemetery where the exhumed remains from the different burial lots of the North Cemetery are being kept until they are retrieved by interested parties. But to the bereaved widow, what she was advised to do was simply unacceptable. According to her, it was just impossible to locate the remains of her late husband in a depository containing thousands upon thousands of sacks of human bones. She did not want to run the risk of claiming for the wrong set of bones. She was even offered another lot but was never appeased. She was too aggrieved that she came to court for relief even before she could formally present her claims and demands to the city government and to the other defendants named in the present complaint. (Decision, Court of Appeals, pp. 2-3; Rollo, pp. 34-55) The trial court, on August 4, 1981, rendered its Decision, the dispositive portion of which states: WHEREFORE, judgment is hereby rendered, ordering the defendants to give plaintiffs the right to make use of another single lot within the North Cemetery for a period of forty-three (43) years four (4) months and eleven (11) days, corresponding to the unexpired term of the fully paid lease sued upon; and to search without let up and with the use of all means humanly possible, for the remains of the late Vivencio Sto. Domingo, Sr. and thereafter, to bury the same in the substitute lot to be chosen by the plaintiffs pursuant to this decision. For want of merit, defendant's counterclaim is DISMISSED. No pronouncement as to costs. SO ORDERED. (Rollo, p. 31) The decision was appealed to the Court of Appeals which on May 31, 1984 rendered a decision (Rollo, pp. 33-40) modifying the decision appealed from, the dispositive portion of which reads: WHEREFORE, PREMISES CONSIDERED, the decision appealed from is hereby REVERSED (is hereby modified) and another one is hereby entered:

1. Requiring in full force the defendants to look in earnest for the bones and skull of the late Vivencio Sto. Domingo, Sr., and to bury the same in the substitute lot adjudged in favor of plaintiffs hereunder; 2. Ordering defendants to pay plaintiffs-appellants jointly and severally P10,000.00 for breach of contract; 3. Ordering defendants to pay plaintiffs-appellants, jointly and severally, P20,000.00 for moral damages; 4. Ordering defendants to pay plaintiffs-appellants jointly and severally, P20,000.00 for exemplary damages; 5. Ordering defendants to pay plaintiffs-appellants, jointly and severally, P10,000.00 as and for attorney's fees; 6. Ordering defendants, to pay plaintiffs-appellants, jointly and severally, on the foregoing amounts legal rate of interest computed from filing hereof until fully paid; and 7. Ordering defendants, to pay plaintiffs-appellants, jointly and severally, the cost of suit. SO ORDERED. (Rollo, p. 40) The petitioners' motion for reconsideration was likewise denied. Hence, this instant petition (Rollo, pp. 7-27) filed on July 27, 1985. The grounds relied upon for this petition are as follows: I THE HONORABLE INTERMEDIATE APPELLATE COURT ERRED IN AWARDING DAMAGES AGAINST THE PETITIONERS HEREIN, NOTWITHSTANDING THEIR GOOD FAITH AND THEIR LACK OF KNOWLEDGE OR CONSENT TO THE REMOVAL OF THE SKELETAL REMAINS OF THE LATE VIVENCIO STO. DOMINGO, SR. FROM THE SUBJECT BURIAL LOT. II THE HON. INTERMEDIATE APPELLATE COURT ERRED IN HOLDING PETITIONERS HEREIN RESPONSIBLE FOR THE ALLEGED TORTS OF THEIR SUBORDINATE OFFICIALS AND EMPLOYEES, INSPITE OF THE PROVISIONS OF SECTION 4 OF THE REPUBLIC ACT NO. 409 (REVISED CHARTER OF MANILA) AND OTHER APPLICABLE JURISPRUDENCE ON THE SUBJECT EXEMPTING THE PETITIONERS FROM DAMAGES FROM THE MALFEASANCE OR MISFEASANCE OF THEIR OFFICIALS AND EMPLOYEES, IF THERE BE ANY IN THIS CASE. (Brief for Petitioners, Rollo, pp. 93-94) In the resolution dated November 13, 1985 (,Rollo, p. 84), the petition was given due course.

The pivotal issue of this case is whether or not the operations and functions of a public cemetery are a governmental, or a corporate or proprietary function of the City of Manila. The resolution of this issue is essential to the determination of the liability for damages of the petitioner city. Petitioners alleged in their petition that the North Cemetery is exclusively devoted for public use or purpose as stated in Sec. 316 of the Compilation of the Ordinances of the City of Manila. They conclude that since the City is a political subdivision in the performance of its governmental function, it is immune from tort liability which may be caused by its public officers and subordinate employees. Further Section 4, Article I of the Revised Charter of Manila exempts the city from liability for damages or injuries to persons or property arising from the failure of the Mayor, the Municipal Board, or any other city officer, to enforce the provision of its charter or any other laws, or ordinance, or from negligence of said Mayor, Municipal Board or any other officers while enforcing or attempting to enforce said provisions. They allege that the Revised Charter of Manila being a special law cannot be defeated by the Human Relations provisions of the Civil Code being a general law. Private respondents on the other hand maintain that the City of Manila entered into a contract of lease which involve the exercise of proprietary functions with private respondent Irene Sto. Domingo. The city and its officers therefore can be sued for any-violation of the contract of lease. Private respondents' contention is well-taken. Under Philippine laws, the City of Manila is a political body corporate and as such endowed with the faculties of municipal corporations to be exercised by and through its city government in conformity with law, and in its proper corporate name. It may sue and be sued, and contract and be contracted with. Its powers are twofold in character-public, governmental or political on the one hand, and corporate, private and proprietary on the other. Governmental powers are those exercised in administering the powers of the state and promoting the public welfare and they include the legislative, judicial, public and political. Municipal powers on the one hand are exercised for the special benefit and advantage of the community and include those which are ministerial, private and corporate. In McQuillin on Municipal Corporation, the rule is stated thus: "A municipal corporation proper has ... a public character as regards the state at large insofar as it is its agent in government, and private (so called) insofar as it is to promote local necessities and conveniences for its own community (Torio v. Fontanilla, 85 SCRA 599 [1978]). In connection with the powers of a municipal corporation, it may acquire property in its public or governmental capacity, and private or proprietary capacity. The New Civil Code divides such properties into property for public use and patrimonial properties (Article 423), and further enumerates the properties for public use as provincial roads, city streets, municipal streets, the squares, fountains, public waters, promenades, and public works for public service paid for by said provisions, cities or municipalities, all other property is patrimonial without prejudice to the provisions of special laws (Article 424; Province of Zamboanga del Norte v. City of Zamboanga, et al., 22 SCRA 1334 [1968]). Thus in Torio v. Fontanilla, supra, the Court declared that with respect to proprietary functions the settled rule is that a municipal corporation can be held liable to third persons ex contractu (Municipality of Moncada v. Cajuigan, et al., 21 Phil. 184 (1912) or ex delicto (Mendoza v. de Leon, 33 Phil. 508 (1916). The Court further stressed: Municipal corporations are subject to be sued upon contracts and in tort.... xxx xxx xxx

The rule of law is a general one, that the superior or employer must answer civilly for the negligence or want of skill of its agent or servant in the course or line of his employment, by which another who is free from contributory fault, is injured. Municipal corporations under the conditions herein stated, fall within tile operation of this rule of law, and are liable accordingly, to civil actions for damages when the requisite elements of liability co-exist. ... (Emphasis supplied) The Court added: ... while the following are corporate or proprietary in character, viz: municipal waterworks, slaughter houses, markets, stables, bathing establishments, wharves, ferries and fisheries. Maintenance of parks, golf courses, cemeteries and airports among others, are also recognized as municipal or city activities of a proprietary character. (Dept. of Treasury v. City of Evansvulle, Sup. Ct. of Indiana, 60 N.E. 2nd 952, 954 cited in Torio v. Fontanilla, supra) (Emphasis supplied) Under the foregoing considerations and in the absence of a special law, the North Cemetery is a patrimonial property of the City of Manila which was created by resolution of the Municipal Board of August 27, 1903 and January 7, 1904 (Petition, Rollo pp. 20-21 Compilation of the Ordinances of the City of Manila). The administration and government of the cemetery are under the City Health Officer (Ibid., Sec. 3189), the order and police of the cemetery (Ibid., See. 319), the opening of graves, niches, or tombs, the exhuming of remains, and the purification of the same (Ibid., Sec. 327) are under the charge and responsibility of the superintendent of the cemetery. The City of Manila furthermore prescribes the procedure and guidelines for the use and dispositions of burial lots and plots within the North Cemetery through Administrative Order No. 5, s. 1975 (Rollo, p. 44). With the acts of dominion, there is, therefore no doubt that the North Cemetery is within the class of property which the City of Manila owns in its proprietary or private character. Furthermore, there is no dispute that the burial lot was leased in favor of the private respondents. Hence, obligations arising from contracts have the force of law between the contracting parties. Thus a lease contract executed by the lessor and lessee remains as the law between them. (Henson v. Intermediate Appellate Court, 148 SCRA 11 [1 987]). Therefore, a breach of contractual provision entitles the other party to damages even if no penalty for such breach is prescribed in the contract. (Boysaw v. Interphil Promotions, Inc., 148 SCRA 635 [1987]). Noteworthy are the findings of the Court of Appeals as to the harrowing experience of private respondents and their wounded feelings upon discovery that the remains of their loved one were exhumed without their knowledge and consent, as said Court declared: It has been fully established that the appellants, in spite or perhaps because, of their lowly station in life have found great consolation in their bereavement from the loss of their family head, by visiting his grave on special or even ordinary occasions, but particularly on All Saints Day, in keeping with the deep, beautiful and Catholic Filipino tradition of revering the memory of their dead. It would have been but fair and equitable that they were notified of the intention of the city government to transfer the skeletal remains of the late Vivencio Sto. Domingo to give them an opportunity to demand the faithful fulfillment of their contract, or at least to prepare and make provisions for said transfer in order that they would not lose track of the remains of their beloved dead, as what has actually happened on this case. We understand fully what the family of the deceased must have felt when on All Saints Day of 1978, they found a new marker on the grave they were to visit, only to be told to locate their beloved dead among thousands of skeletal remains which to them was desecration

and an impossible task. Even the lower court recognized this when it stated in its decision thus: All things considered, even as the Court commiserates with plaintiffs for the unfortunate happening complained of and untimely desecration of the resting place and remains of their deceased dearly beloved, it finds the reliefs prayed for by them lacking in legal and factual basis. Under the aforementioned facts and circumstances, the most that plaintiffs ran ask for is the replacement of subject lot with another lot of equal size and similar location in the North Cemetery which substitute lot plaintiffs can make use of without paying any rental to the city government for a period of forty-three (43) years, four (4) months and eleven (11) days corresponding to the unexpired portion of the term of the lease sued upon as of January 25, 1978 when the remains of the late Vivencio Sto. Domingo, Sr. were prematurely removed from the disputed lot; and to require the defendants to look in earnest for the bones and skull of the late Vivencio Sto. Domingo Sr. and to bury the same in the substitute lot adjudged in favor of plaintiffs hereunder. (Decision, Intermediate Appellate Court, p. 7, Rollo, p. 39) As regards the issue of the validity of the contract of lease of grave lot No. 159, Block No. 195 of the North Cemetery for 50 years beginning from June 6, 1971 to June 6, 2021 as clearly stated in the receipt duly signed by the deputy treasurer of the City of Manila and sealed by the city government, there is nothing in the record that justifies the reversal of the conclusion of both the trial court and the Intermediate Appellate Court to the effect that the receipt is in itself a contract of lease. (Decision, Intermediate Appellate Court, p. 3, Rollo, pp. 5-6). Under the doctrine of respondent superior, (Torio v. Fontanilla, supra), petitioner City of Manila is liable for the tortious act committed by its agents who failed to verify and check the duration of the contract of lease. The contention of the petitioner-city that the lease is covered by Administrative Order No. 5, series of 1975 dated March 6, 1975 of the City of Manila for five (5) years only beginning from June 6, 1971 is not meritorious for the said administrative order covers new leases. When subject lot was certified on January 25, 1978 as ready for exhumation, the lease contract for fifty (50) years was still in full force and effect. PREMISES CONSIDERED, the Decision of the Intermediate Appellate Court is hereby AFFIRMED. SO ORDERED. G.R. No. L-41941 January 9, 1936

JUAN BENGZON, plaintiff-appellant, vs. THE PROVINCE OF PANGASINAN, defendant-appellee. Mario Bengzon for appellant. Provincial Fiscal Fajardo for appellee. BUTTE, J.:

In this case the motion for reconsideration of the decision promulgated on October 26, 1935, was granted and the case set for re-argument on December 17, 1935. The court having had the benefit of the oral argument of counsel on the issue of their present value of the premises of the plaintiffappellant involved in this suit, its decision of October 26, 1935, is amended to read as follows: This is an appeal from a judgment of the Court of First Instance of Pangasinan in action for damages for maintaining a nuisance continuously injurious to the plaintiff and his family by reason of the maintenance and operation of a stand pipe, pumping station and open reservoir for the storage of water upon the premises immediately adjacent to the plaintiff's residence. It appears from the stipulation of facts that the plaintiff owns a house constructed of wood and covered with nipa on Avenida Rizal, municipality of Lingayen, Province of Pangasinan; that he had and his family have resided there for twenty-seven years, his family being composed of eight members. Their house is two stories constructed upon a lot which contains 720 square meter. Upon the adjacent lot the defendant, during the years 1924 and 1925, constructed a reinforced concrete stand pipe 28 meters high and nine meters in diameter. Within the base of this cylindrical tank there are three machines: One electrical, one gasoline and one crude oil. On the side of the tank nearest the plaintiff's residence and at a distance of 3.4 meters is a chimney which rises to about the height of the gable of the house. The tank itself is 3.8 meters from the house of the plaintiff. In March, 1927, the plaintiff protested to the governor of the province for the manner in which the plant was being operated and asked that he be indemnified for the value of his house and lot so that he might move his family and his effects to another residence. In this protest he stated: "Expide humo y olor desagradable que penetran en el interior de mi casa, aun cerradas sus ventanas, molestos y perjudiciales a nuestra salud. La chimenea de la maquina, que esta en en el lado del tanque, contiguo al alero de mi casa, aunque esta envuela en la cabeza como una red de acero chispea en ocasiones en que detro de la red se ha acumulado por el humo bastante suciedad inflamable, y si algumas tiguo de mi casa, techada de nipa, ella naturalmente nada de su contenido. "El tangue nos asusta y ponne en en peligro de ser aplastadoos por el, siempre que ocurre un tembor como ya ha ocurrido varias veces desde su levantamiento, por sus porciones y condiciones mencionadas, y la circunstancia de estar plantado sobre terreno blado, bajo y anegadizo. No es improbable, ni menos increible, que este tanque volcara o se tumbra, si ocurriera en Lingayen un temblor tan fuerte como el ocurrido el ao 63 u 80 en Manila, o el occurrido en Japon en 1923, o en la fecha 7 de estee mes, que derrumbo muchas casas, matando a millares de personas. Ninguna personans, por sabia que sea, puede dar certidumre y seguridad de que no se tumbaria, por cualquier terremoto fuerte que occuriera aqui en Lingayen, maxime, estado cargada de CIEN MIL galones de agua en su parte superior. Y si en ocasion en que yo mi familia estuvieramos dormidos, ocurrienran el temblor y el volacamiento del TANQUE hacia mi casa ay de nosotros!" After making an ocular inspection of the plant and hearing the testimony of the witnesses, the trial court came to the conclusion that although the operation of the pumps and the tank creates some annoyance and discomfort to the plaintiff, these are but ordinary and incidental to the reasonable conduct of the defendant's water system. The court further held that inasmuch as the plaintiff did not protest till after the plan was constructed, his action is barred for laches.

For this later conclusion of law the trial court cites no authority and we are not aware of any. It is to be noted that this is not a suit for equitable relief but an action for damages. The doctrine that one who consents to permits or acquiesces in the erection of structure with knowledge of the purpose for which it is to be put and the consequences of its uses are productive of a nuisance, is not applicable here, for the plaintiff neither consented to, permitted or acquiesced in the erection of the structure; nor could it fairly be said that he had knowledge in advance of all the consequences of the erection and the manner of operation of the plant here in question. The amended complaint in this case was filed on January 4, 1930, from which we infer that the suit was instituted some time before that date. But there is nothing in the record which warrants the inference of an estoppel by acquiescence. The learned trial judge, in his decision of January 27, 1934, made a careful and exhaustive analysis both of the law and the evidence in this case. But after a careful examination of the entire record, we cannot accept his conclusion that the evidence a case of actionable nuisance. In locating its pumping station within 3.8 meters from the house of the plaintiff, the defendant should reasonably have foreseen that the noise, vibrations, smoke, odor and sparks coming from the plant during its operation, not only during the day but during the night as well, would cause a constant annoyance, discomfort and danger both to the property of the plaintiff and the health and comport of himself and his family. The chimney which is just opposite the plaintiff's house at a distance of only 3.4 meters emits smoke, gases of crude oil and gasoline and occasionally sparks well. The plaintiff testified that at times the smoke blinds him and his family affecting their lungs and their eyes and that the noise and vibrations affect their sleep. As against the testimony of the plaintiff, who is exposed day in and day out to these conditions, and of his neighbors who corroborate him, the brief ocular inspection made by the court on one day, although conducted with eminent fairness, seems to us to be entitled to less weight. The witnesses for the defendant, its employees, naturally minimize the harmful effects to the plaintiff of the operation of the machines in the pumping plant. But the evidence as a whole leaves us with clear conviction that the construction and operation of this pumping plant in such close proximity to the plaintiff's residence has rendered the same practically uninhabitable without exposing to risk the comfort, health and, in case of fire, even the live of the plaintiff and his family. We find from the preponderance of the evidence that the fair present value of the appellant's premises involved in this suit is P3,000; and as, under the circumstances, the maintenance of the nuisance is practically tantamount to an expropriation, we have concluded that the defendant-appellee should be and it is hereby required and adjudged to pay by him to it of a valid conveyance of the premises, free of liens and incumbrances, reserving to the plaintiffappellant the right to remove his improvements therefrom within three months from the date of payment of the said P3,000. The judgment appealed from is reserved and the cause is remanded for further proceedings in accordance with this decision. No special pronouncement as to costs in this instance. GR No. L-47033 April 25, 1941 DINGCONG JOSE, appellant-appellant, vs.. HALIM Kanaan NASRI Kanaan and Michael Kanaan, engaged in trade under the name of "American Bazaar," appealed-appellees.

Salvosa Mr. Ezpeleta and in representation of the appellant. D. Felipe Ysmael representing the respondents. AVANCEA, J. : According to the decision of the Court of Appeals, the brothers and Jose Loreto Dingcong Dingcong are coarrentadarios of senior Emilia's house at Calle Saenz Jose Ma Basa Iloilo City, where they established the Central Hotel, where the first the owner and his manager last. The defendant Francisco Echevarria occupy upon payment of P30 per month, the fourth No. 10 of that hotel. Plaintiffs acupaban turn the low of this hotel where they had established their "American Bazaar" dedicated to the purchase and sale of goods and mencancias. About eleven o'clock in the evening of September 19, 1933, Echevarria, when retiring to bed, leave the tap open carelessly giving on a regular bowl without drain. As Hotel pipes at that time were in repair, when at midnight drew water through pipes, spread across the floor, and wetting traspasandolo items and low mencancias in establishing "American Bazaar," causing a lost, that the Court of First Instance held at P1, 089.61. It launched this action by Halim Kanaan, Nasri and Michael Kanaan Kanaan on behalf of the name "American Bazaar" against Loreto Dingcong, Francisco Jose Echevarria Dingcong and damages caused to the plaintiffs. The Jusgado dismissed the case as to Loreto Dingcong having died, and condemn Francisco Echevarria, Jose Dingcong acquitted. The plaintiffs appealed this decision as Jose dingcong absolve. The Court of Appeal, reversing the decision of the Court of First Instance declared Jose Dingcong responsible and ordered to pay the plaintiffs the amount of damages caused to them as assessed by the Court. It is now before this Court, bycertiorari , appeal of this decision of the Court of Appeals. Being Jose Dingcong joint tenant and manager of the hotel, with full possession of the top of the house, must answer for the damages caused by the things that were thrown or fell from it (Article 1910 of the Civil Code).Francisco Echevarria was a guest of the hotel and was the one who directly, by their negligence, to leave the tap open, allowed the water to the pipe drawing back on the ground and seeps into the low, dipping items and goods of the plaintiffs. Jose Dingcong, moreover, do not practice the diligence of a good father to prevent this damage, however they knew they could be caused by the pipes then repair therefore must assume that Echavarria could not use the tap provided for any overflow vessel, and if you only put a pan under it that when filled, caused the water to spread across the floor. It confirms the decision appealed from, with costs against the appellant. G.R. No. L-5932 February 27, 1912

DEAN C. WORCESTER, plaintiff-appellee, vs. MARTIN OCAMPO, TEODORO M. KALAW, LOPE K. SANTOS, FIDEL A. REYES, FAUSTINO AGUILAR, ET AL.,defendants-appellants. Felipe Agoncillo for appellants. W. A. Kincaid and Thos. L. Hartigan for appellee. JOHNSON, J.:

On the 23rd day of January, 1909, the plaintiff commenced an action against the defendants in the Court of First Instance of the city of Manila, for the purpose of recovering damages resulting from an alleged libelous publication. The complaint was in the following language: COMPLAINT. I. That the plaintiff as well as the defendants are residents of the city of Manila, Philippine Islands. II. That for a long time before the 30th of October, 1908, the defendants, Martin Ocampo, Teodoro M. Kalaw, Lope K. Santos, Fidel A. Reyes, Faustino Aguilar, Leoncio G. Liquete , Manuel Palma, Arcadio Arellano, Angel Jose, Galo Lichauco, Felipe Barretto, and Gregorio M. Cansipit, were the owners, directors, writers (redactores), editors (editores) and administrators of a certain daily newspaper known as "El Renacimiento" and "Muling Pagsilang," which newspaper during all the time mentioned in this complaint was published and circulated daily in the Spanish and Tagalog languages in the city of Manila, having a large circulation throughout the Philippine Islands. III. That for a long time the defendants have been maliciously persecuting and attacking the plaintiff in said newspaper, until at last on the 30th of October, 1908, with the malicious intention of injuring the plaintiff, who on said date was, and still is a member of the Civil Commission of the Philippines and Secretary of the Interior in the Government of the Philippines, they attacked the honesty and reviled the fame of the plaintiff, not only as a private person but also as an official of the Government of the Philippine Islands, and with the object of exposing him to the odium, contempt, and ridicule of the public, printed, wrote (redactaron), and published in said newspaper in its ordinary number of the 30th of October, 1908, a malicious defamation and false libel which was injurious (injurioso) to the plaintiff, said libel reading as follows: "EDITORIAL. "BIRDS OF PREY. "On the surface of the globe some were born to eat and devour, others to be eaten and devoured. "Now and then the latter have bestirred themselves, endeavoring to rebel against an order of things which makes them the prey and food of the insatiable voracity of the former. At times they have been fortunate, putting to flight the eaters and devourers, but in the majority of cases they did not obtain but a change of name or plumage. "The situation is the same in all the spheres of creation: the relation between the ones and the others is that dictated by the appetite and the power to satisfy it at the fellow-creatures' expense.

"Among men it is very easy to observe the development of this daily phenomenon. And for some psychological reason the nations who believe themselves powerful have taken the fiercest and most harmful creatures as emblems; it is either the lion, or the eagle, or the serpent. Some have done so by a secret impulse of affinity and others in the nature of simulation, of infatuated vanity, making themselves appear that which they are not nor ever can be. "The eagle, symbolizing liberty and strength, is the bird that has found the most adepts. And men, collectively and individually, have desired to copy and imitate the most rapacious bird in order to triumph in the plundering of their fellow-men. "There are men who, besides being eagles, have the characteristics of the vulture, the owl and the vampire. "Ascending the mountains of Benguet to classify and measure the skulls of the Igorots and study and civilize them and to espy in his flight, with the eye of the bird of prey, where are the large deposits of gold, the prey concealed amidst the lonely mountains, to appropriate them to himself afterwards, thanks to legal facilities made and unmade at will, but always for his own benefit. "Authorizing, despite laws and ordinances, an illegal slaughtering of diseased cattle in order to derive benefit from the infected and putrid meat which he himself was obliged to condemn by virtue of his official position. "Presenting himself on all occasions with the wrinkled brow of the scientist who consumes his life in the mysteries of the laboratory of science, when his whole scientific labor is confined o dissecting insects and importing fish eggs, as if the fish eggs of this country were less nourishing and less savory, so as to make it worth the while replacing them with species coming from other climes. "Giving an admirable impulse to the discovery of wealthy lodes in Mindoro, in Mindanao, and in other virgin regions of the Archipelago, with the money of the people, and under the pretext of the public good, when, as a strict matter of truth, the object is to possess all the data and the key to the national wealth for his essentially personal benefit, as is shown by the acquisition of immense properties registered under he names of others. "Promoting, through secret agents and partners, the sale to the city of worthless land at fabulous prices which the city fathers dare not refuse, from fear of displeasing the one who is behind the motion, and which they do not refuse for their own good. "Patronizing concessions for hotels on filled-in-land, with the prospects of enormous profits, at the expense of the blood of the people. "Such are the characteristics of the man who is at the same time an eagle who surprises and devours, a vulture who gorges himself on the dead and putrid meats, an owl who affects a petulent omniscience and a vampire who silently sucks the blood of the victim until he leaves it bloodless. "It is these birds of prey who triumph. Their flight and their aim are never thwarted.

"Who will detain them? "Some share in the booty and the plunder. Others are too weak to raise a voice of protest. And others die in the disconsolating destruction of their own energies and interests. "And then there appears, terrifying, the immortal legend: "MANE, TECEL, PHARES." IV. That the plaintiff was, on the date of said publication, and still is, well known to the officials of the Government of the Philippine Islands, and to the inhabitants of the Philippine Islands, and to public in general, personally as well as a member of the Civil Commission of the Philippines and as Secretary of the Interior, and the defamation and libel, and the words, terms and language used in said defamation and libel were employed by the said defendants with the intention of indicating the said plaintiff, and that should be understood, as in effect they were understood, by the public officials of the Government and the inhabitants of the Philippine Islands in general, as referring to the plaintiff, by reason of the publicly known fact that said plaintiff in compliance with his duties in his position as such member of the Civil Commission of the Philippines and as such Secretary of the Interior of the Philippine Islands, ascended on a previous occasion the mountains of the Province of Benguet to study the native tribe known as Igorot, residing in said region; by reason of the publicly known fact that in the said mountains of Benguet there exist large deposits of gold, and for the reason that, as member of the Civil Commission of the Philippines, which is the legislative body of the Philippine Islands, the plaintiff takes part in the enactment and repealing of laws in said Islands; by reason furthermore of the fact, publicly known, that the plaintiff, as such Secretary of the Interior of the Philippine Islands, has had under his direction and control the enforcement of the laws of the Philippine Islands and the ordinances of the city of Manila relating to the slaughtering of cattle; by reason furthermore of the fact, publicly known that said plaintiff, as such Secretary of the Interior of the Philippine Islands, had under his direction and control the Bureau of Science of the Government of the Philippine Islands, and he is generally known as a man devoted to the study of science; by reason furthermore of the publicly known fact that the said plaintiff, as such Secretary of the Interior of the Philippine Islands, at a previous time, caused the importation into the Philippine Islands of fish eggs for the purpose of supplying the mountain streams of the Philippine Islands with fish-hatcheries; by reason furthermore of the publicly known fact that said plaintiff, as such Secretary of the Interior of the Philippine Islands, has journeyed to and explored the Islands of Mindoro, Mindanao, and other regions of the Philippine Archipelago; by reason furthermore of the publicly known fact that said plaintiff, as such Secretary of the Interior of the Philippine Islands, at one time investigated and prepared a report for the Civil Commission of the Philippines in regard to a certain proposition for the purchase of a parcel of land for the city of Manila; by reason furthermore of the publicly known fact that said plaintiff, as member of said Civil Commission of the Philippines together with the other members of said legislative body, once opened negotiations with a certain firm engaged in the hotel business in regard to the location of a prospective hotel on one of the filled-in lands of the city of Manila. That said defendants charged said plaintiff with the prostitution of his office as member of the Civil Commission of the Philippines and as Secretary of the Interior of said Islands, for personal ends; with wasting public funds for the purpose of promoting his personal welfare;

with the violation of the laws of the Philippine Islands and the ordinances of the city of Manila; with taking part in illegal combinations for the purpose of robbing the people; with the object of gain for himself and for others; and lastly with being "a bird of prey;" and that said defamation should be understood, as in effect it was understood, by the public officials of the Government and the people of the Philippine Islands in general, as charging the said plaintiff with the conduct, actions and things above specified; all of which allegations relating to the character and conduct of the said plaintiff, as above stated, were and are false and without any foundation whatsoever. That said defamation and libel were published by the defendants under a heading in large and showy type, and every effort made by said defendants to see that said defamation and libel should attract the attention of the public and be read by all the subscribers to said newspaper and the readers of the same. V. Besides assailing the integrity and reviling the reputation of the plaintiff, said defendants, in publishing the said libel, did so with the malicious intention of inciting the Filipino people to believe that the plaintiff was a vile despot and a corrupt person, unworthy of the position which he held, and for this reason to oppose his administration of the office in his charge as Secretary of the Interior, and in this way they endeavored to create enormous difficulties for him in the performance of his official duties, and to make him so unpopular that he would have to resign his office as member of the Civil Commission of the Philippines and Secretary of the Interior. In fact said defendants, by means of said libel and other false statements in said mentioned newspaper, have been deliberately trying to destroy the confidence of the public in the plaintiff and to incite the people to place obstacles in his way in the performance of his official duties, in consequence of which the plaintiff has met with a great many difficulties which have increased to a great extent his labors as a public official in every one of the Departments. VI. And for all these reasons the plaintiff alleges: That he has been damaged and is entitled to an indemnity for the additional work to which he has been put, by the said defendants, in the compliance of his duties, both in the past and the future, as well as for the injuries to his reputation and feelings, in the sum of fifty thousand pesos (P50,000) Philippine currency, and besides this said amount he is entitled to collect from the defendants the additional sum of fifty thousand pesos (P50,000) Philippine currency, in the way of punitive damages, as a warning to the defendants. Wherefore the plaintiff files this complaint, praying the court: (1) That the defendants be summoned according to law. (2) That judgment be rendered ordering the defendants to pay the damages as above stated, and the costs of the action. On the 23d of February, 1909, the defendants presented the following demurrer to the said complaint:

DEMURRER. Now come the defendants, through their undersigned attorney, and demur to the complaint filed herein, upon the following grounds: First, That the complaint is vague and unintelligible. Second. That the facts alleged in the complaint do not constitute a cause or right of action. Third. That there is another action pending between the plaintiff and several of the defendants for the same cause; and Fourth. That some of the defendants have been erroneously included therein. Therefore, they respectfully ask the court to dismiss the complaint, with costs against the plaintiff. On the 27th of February, 1909, the Honorable Charles S. Lobingier, judge, overruled said demurrer in the following decision, to which the defendants duly excepted: ORDER. The defendant demur upon several grounds: (1) The first ground is that the complaint is vague and unintelligible and this is directed principally to paragraph 2, in which it is alleged that the defendants were "dueos, directores, redactores", etc., but it is not alleged that they were such simultaneously. If this were the sole averment of the defendants' connection with the alleged libel, the objection might be well taken, but paragraph 3 of the complaint alleges that the defendants "imprimieron, redactaron y publicaron", etc., the article complained of. Under section 2 of Act 277 "every person" who "publishes or procures to be published any belief is made responsible. (Cf. U.S. vs.Ortiz, 8 Phil. Rep., 752.) We think, therefore, that the connection of the defendants with the publication complained of is sufficiently charged. (2) It is also claimed that the facts alleged are not sufficient to state a cause of action and it is urged in support of this that the article complained of and which is copied in the complaint, fails to mention the plaintiff or to show on its face that it refers to him. It is, however, specifically alleged in paragraph 4 that the article was intended to refer to the plaintiff and was so understood by the public, and this allegation is admitted by the demurrer. Under the rule announced in Causin vs. Jakosalem (5 Phil. Rep., 155), where the words complained of do refer to the plaintiff "an action for libel may be maintained even though the defamatory publication does not refer to the plaintiff by name." (3) It is further argued that there is another action pending between the parties for the same cause. This, it is true, is made a ground for demurrer by the Code of Civil Procedure, sec. 91 (3), but like all grounds therein mentioned, it must "appear upon the face" of the pleading objected to, and where it does not so appear "the objection can only be taken by answer." (Code C. P., sec. 92.) There is no averment in the complaint which indicates that there is no another action pending.

The fourth ground of the demurrer is not one recognized by law (Code C. P., sec. 91) nor do we find anything in Sanidad vs. Cabotaje (5 Phil. Rep., 204) which would necessitate any change in the views already expressed. The demurrer is, therefore, overruled and defendants are given the usual five days to answer. On the 15th day of November, 1909, the defendants presented their amended answer, which was as follows: ANSWER. The defendants in the above-entitled cause, through their undersigned attorney, by their answer to the complaint, state: That the defendants deny generally the allegation of the complaint. As a special defense, the defendants allege: First. That the plaintiff has no legal capacity to institute this action, as it clearly appears from the allegations of the complaint and which the defendants hereby deny. Second. That the facts are set out as constituting cause of action in the complaint, are insufficient to constitute such cause of action in favor of the plaintiff and against the defendants. Third. That the said complaint is manifestly improper, for the reason that there is now pending in the Court of First Instance of this city a criminal cause, No. 4295, for the crime of libel against the defendants herein, Martin Ocampo, Teodoro M. Kalaw, and Fidel A. Reyes, both actions, criminal and civil, being based upon the same facts which the plaintiffs herein, who is also a party to the said criminal action, now alleges as the basis of his action. Fourth. That the civil action in the above-entitled cause has been extinguished for the reason that plaintiff did not expressly reserve the right to enforce the same in the aforesaid cause 4295, for the crime of libel, after the said criminal cause had been finally disposed of. Fifth. That the defendants, Lope K. Santos, Faustino Aguilar, Leoncio G. Liquete, Manuel Palma, Arcadio Arellano, Angel Jose, Galo Lichauco, Felipe Barretto, and Gregorio M. Cansipit, were erroneously included in the complaint for the simple reason that the first two were acquitted in said criminal cause No. 4295, for libel, the third was used as a witness for the prosecution in the said criminal cause, and the others have no interest, either directly or indirectly, in the newspaper "El Renacimiento" in which it is alleged by the plaintiff the editorial, which is the basis of the complaint, and which it is claimed to be libelous, was published. Wherefore the defendants pray that they be acquitted of the complaint, with the costs against the plaintiff. After hearing the evidence adduced during the trial of the cause, the arguments if the respective attorneys, the Honorable James C. Jenkins, judge, on the 14th of January, 1910, rendered the following decision:

DECISION. This is a civil action sounding in damages to the amount of P100,000 for an alleged libel of the plaintiff by the defendants. The plaintiff is the Honorable Dean C. Worcester, a member of the Civil Commission of the Philippine Islands, and Secretary of the Interior of Insular Government. The defendants are twelve persons designated by name in the complaint and alleged therein to be the owners, directors, writers (redactores), editors (editores), and administrators of a certain daily newspaper known as "El Renacimiento" and "Muling Pagsilang," which defendants, as well as the plaintiff, are residents of the city of Manila, Philippine Islands. It is further alleged in the complaint that for a long time prior to the 30th of October, 1908, the defendants were the owners, directors, writers, editors, and administrators of said daily newspaper, and that said newspaper, during all the time mentioned in the complaint, was published and circulated daily in the Spanish and Tagalog languages in the city of Manila, having a large circulation throughout the Philippine Islands. It is also alleged that for a long time the defendants had been maliciously persecuting and attacking the plaintiff in said newspaper, until at last, on said date, with the malicious intention of injuring the plaintiff who then was still is a member of the Civil Commission of the Philippines and Secretary of the Interior in the Government of the Philippines, they attacked the integrity and reviled the reputation of the plaintiff, not only as a private citizen, but also as an official of the Government of the Philippine Islands; and with the object of exposing him to the odium, contempt, and ridicule of the public, they wrote, printed, and published in said newspaper in its ordinary number of the said 30th of October, 1908, a malicious defamation and false libel, which was injurious to the plaintiff, said libel, as translated from the Spanish, reading as follows: "EDITORIAL. "BIRDS OF PREY. "On the surface of the globe some were born to eat and devour, others to be eaten and devoured. "Now and then the latter have bestirred themselves, endeavoring to rebel against an order of things which makes them the prey and food of the insatiable voracity of the former. At times they have been fortunate, putting to flight the eaters and devourers, but in a majority of cases they do not obtain anything but a change of name or plumage. "The situation is the same in all spheres of creation; the relation between the ones and the others is that dictated by the appetite and the power to satisfy it at the fellowcreature's expense. "Among men it is easy to observe the development of this daily phenomenon. And for some psychological reason the nations who believe themselves powerful have taken the fiercest and most harmful creatures as emblems; it is either the lion, or the eagle, or the serpent. Some have done so by a secret impulse of affinity and others in the nature of simulation, of infatuated vanity, making themselves appear that which they are not nor ever will be.

"The eagle, symbolizing liberty and strength, is the bird that has found the most adepts. And men, collectively and individually, have desired to copy and imitate the most rapacious bird in order to triumph in the plundering if their fellow-men. "There are men who, besides being eagles, have the characteristics of the vulture, the owl and the vampire. "Ascending the mountains of Benguet to classify and measure the skulls of the Igorots and study and civilize them, and to espy in his flight with the eye of the bird of prey, where are the large deposits of gold, the prey concealed amongst the lonely mountains, to appropriate them to himself afterwards, thanks to legal facilities made and unmade at will, but always for his own benefit. "Authorizing, despite laws and ordinances an illegal slaughtering of diseased cattle in order to derive benefit from the infected and putrid meat which he himself was obliged to condemn by virtue of his official position. "Presenting himself on all occasions with the wrinkled brow of the scientist who consumes his life in the mysteries of the laboratory of science, when his whole scientific labor is confined to dissecting insects and importing fish eggs, as if the fish eggs of this country were less nourishing and savory, so as to make it worth the while replacing them with species coming from other climes. "Giving an admirable impulse to the discovery of wealthy lodes in Mindanao, in Mindoro, and in other virgin regions of the archipelago, with the money of the people, and under the pretext of the public good, when, as a strict matter of truth, the object is to possess all the data and the key to the national wealth for his essentially personal benefit, as is shown by the acquisition of immense properties registered under the names of others. "Promoting through secret agents and partners, the sale of the city worthless land at fabulous prices which the city fathers dare not refuse from fear of displeasing the one who is behind the motion, and which they do not refuse to their own good. "Patronizing concessions for hotels on filled-in lands, with the prospects of enormous profits, at the expense of the blood of the people. "Such are the characteristics of the man who is at the same time an eagle who surprises and devours, a vulture who gorges himself on the dead and putrid meats, an owl who affects a petulant omniscience and a vampire who silently sucks the blood of the victim until he leaves it bloodless. "It is these birds of prey who triumph. Their flight and aim are never thwarted. "Who will detain them? "Some share in the body and plunder, Others are too weak to raise a voice to protest. And others die in the disconsolating destruction of their own energies and interests. "And then there appears, terrifying, the immortal legend:

"MANE, TECEL, PHARES." It is alleged, among other things, in paragraph four of the complaint, that the plaintiff was on the date of said publication, and still is, well known to the officials of the Government of the Philippine Islands, and to the inhabitants of the Philippine Islands, and to the public generally, personally as well as a member of the Civil Commission of the Philippines and as a Secretary of the Interior; and the defamation and libel, and the words, terms, and language used in said defamation and libel were employed by the said defendants with the intention of indicating the said plaintiff, and that they should be understood, as in fact they were understood, by the public officials of the Government and the inhabitants of the Philippine Islands in general, as referring to the plaintiff. (Here follow the reasons for saying the editorial referred to plaintiff and why the public understood it as referring to him.) The said defendants charged plaintiff with the prostitution of his office as a member of the Civil Commission of the Philippines and as Secretary of the Interior of said Islands, for personal ends; with wasting public funds for the purpose of promoting his personal welfare; and with the violation of the laws of the Philippine Islands and the ordinances of the city of Manila; with taking part in illegal combination of the purpose of robbing the people, with the object of gain for himself and for others; and lastly, with being a bird of prey, and that said defamation should be understood, as in effect it was understood by the public officials of the Government and the people of the Philippine Islands in general, as charging the said plaintiff with the conduct, actions and things above specified; all of which allegations relating to the character and conduct of the said plaintiff, as above stated, were and are false and without any foundation whatever. That said defamation and libel were published by the defendants under a heading in large and showy type, and every effort was made by said defendant to see that said defamation and libel should attract the attention of the public and be read by all the subscribers to said newspaper and the readers of the same. In paragraph five of the complaint it is further alleged that, besides assailing the integrity and reviling the reputation of the plaintiff, said defendants, in publishing said libel, did so with the malicious intention of inciting the Filipino to believe that the plaintiff was a vile despot and a corrupt person, unworthy of the position which he held, and for this reason to oppose of his administration of the office in his charge as Secretary of the Interior, and in this way they endeavored to create enormous difficulties for him in the performance of his official duties, and to make him so unpopular that he would have to resign his office as a member of the Civil Commission of the Philippines and Secretary of the Interior. In fact, said defendants, by means of said libel and other false statements in said mentioned newspaper, have been deliberately trying to destroy the confidence of the public in the plaintiff, and to in incite the people to place obstacles in his way in the performance of his official duties, in consequence of which said plaintiff has met with a great many difficulties which have increased to a great extent his labors as a public official in every one of the Departments. And the allegations end with paragraph six, in which the plaintiff states that for all these reasons has been damaged and is entitled to an indemnity for the additional work to which he has been put by said defendants in compliance with his duties, both in the past and in the future, as well as for the injuries to his reputation and feelings, in the sum, of P50,000, and that besides this said amount he is entitled to collect from the defendants the additional sum of fifty thousand pesos in the way of punitive damages, as a warning to the defendants. The complaint concludes with a prayer, among other things, that judgment be rendered ordering the defendants to pay the damages as above stated and the costs of the action; and

is dated and signed, Manila, P.I., January 23, 1909, Hartigan and Rohde, Kincaid and Hurd, attorneys for plaintiff. A demurrer to this complaint was filed by the defendants, through their attorney, Sr. Felipe Agoncillo, which demurrer was heretofore heard and overruled by the Court, and the defendants required to answer. Accordingly, the defendants within the prescribed time, filed their answer; and on November 16, 1909, through their attorney, filed and amended answer, which is as follows (after stating the case): The defendants in the above-entitled action, through their undersigned attorney, answering the complaint, state: That they make a general denial of the allegations in the complaint, and as a special defense allege: "(1) That the plaintiff lacks the necessary personality to institute the complaint in question, as evidently appears from the allegations in the same, and which the defendants deny; "(2) That the facts set forth as a cause of action in the complaint are insufficient to constitute a cause of action in favor of the plaintiff and against the defendants; "(3) That the said complaint is in every sense contrary to law, criminal case No. 4295, for libel, against the defendants Martin Ocampo, Teodoro M. Kalaw, and Fidel A. Reyes, in the Court of First Instance of this city, being still pending, inasmuch as both causes, criminal and civil, are based upon the same facts which the plaintiff, who is also interested in said criminal cause, considers a cause of action; "(4) That the civil action in the above-entitled cause has been destroyed as a consequence of the fact that the plaintiff did not expressly reserve his right to the same in the said mentioned cause No. 4295 for libel, in order to exercise it after the termination of said criminal cause: "(5) That the defendants Lope K. Santos, Faustino Aguilar, Leoncio G. Liquete, Manuel Palma, Arcadio Arellano, Angel Jose, Galo Lichauco, Felipe Barretto, and Gregorio M. Cansipit have been erroneously included in the complaint, for the simple reason that the first two were acquitted in said cause No. 4295 for libel, the third was used as a witness by the prosecution in the same cause, and the latter ones have no interest, directly or indirectly, in the newspaper "El Renacimiento," in which the plaintiff presumes, was published the editorial which forms the basis of the complaint, and which is said to be libelous; and concluding with a prayer to the court to dismiss the case, with cost against the plaintiff." The second paragraph of this "special defense" is nothing other than a general demurrer to the complaint, which has been overruled, as already stated. The first paragraph is not clearly stated, but the court construes it as meaning a simple denial that the plaintiff is the person referred to in the alleged libelous article "Birds of Prey," which issue is sufficiently raised by the general denial of the allegations in the complaint. The third paragraph is not a valid defense in law, for the simple reason that section 11 of Act 277 of the Philippine Commission, under which this suit is brought, especially provides for a separate civil action for damages, as well as for a criminal prosecution. (See Mr. Justice Johnson's recent decision.) This third paragraph is therefore without merit; and the same may be said of the fourth paragraph thereof. As to paragraph five, it contains no material averment which could not have been set up and insisted upon under the general issue.

One part if this so-called special defense is therefore a demurrer already and adjudicated, another part is covered by the general issue, and the residue is without merit as a legal defense, and might have been stricken out. The defense is therefore tantamount to the general issue only, there being no special plea that these charges are true, nor any plea of justification. The trial of this case on its merits began November 16, and ended December 10, 1909, and the proceedings and evidence introduced are to be found in the exhibits and stenographic notes taken by the court's official reporter. At the trial Judge Kincaid said Major Hartigan appeared for the plaintiff and Seores Agoncillo, Cruz Herrera, and Ferrer for the defendants. After hearing the testimony and arguments of counsel and a due consideration of the case, the court finds the following facts established by the admissions and a decided preponderance of the evidence: That the defendants Martin Ocampo, Manuel Palma, Arcadio Arellano, Angel Jose, Galo Lichauco, Felipe Barretto, and Gregorio M. Cansipit, seven in number, are the proprietors and owners of the said daily newspaper known as "El Renacimiento" and "Muling Pagsilang," and that "El Renacimiento" and "Muling Pagsilang," are one and the same newspaper, owned, managed, printed and published by the same persons; that Teodoro M. Kalaw and Lope K. Santos were the editors in chief of directors of this paper on the 30th of October, 1908, and that said nine defendants named were the owners, editors, proprietors, managers and publishers of said newspaper on said 30th of October, 1908, for a long time prior thereto, and during all the time mentioned in the complaint. As to the defendants, Reyes, Aguilar, and Liquete, they appear from the evidence to have been editors of said paper, but in subordinate position to the chief editors or directors, Kalaw and Santos, and to have acted under the direction of their latter two defendants. The court further finds that every essential or material allegation of the complaint is true substantially as therein stated, with the exception noted to Fidel A. Reyes, Faustino Aguilar, and Leoncio G. Liquete, and as may be hereinafter indicated. The case is therefore dismissed as to these three defendants. The only serious contention of the defense is (1) that the editorial "Birds of Prey" does not refer to a determinate person; and (2) that, conceding that it does refer to the plaintiff, none of the defendants, except Teodoro M. Kalaw, is responsible for the writing, printing, or publication of the alleged libelous article of the damages to the plaintiff resulting therefrom. In the opinion of the court this article so indubitably refers to the plaintiff, and was so easily and well understood by the readers of said paper as indicating the plaintiff, that it would be an act of superrogation to elaborately discuss the evidence adduced in support of or against the proposition. It is as clear to the court from the evidence adduced as the noonday sun, that the plaintiff is the identical and only person meant and referred to in said article "Birds and Prey;" and it requires no argument to prove that it does mean and refer to him and was so intended by the writer, and therefore by said nine defendants, and could not have been otherwise understood by any intelligent reader or subscriber of said paper, in view of the reasons assigned in the complaint, which reasons are clearly disclosed and fully established by the evidence. And it may be added that much valuable time was needlessly consumed by the defense at trial in an effort to establish the contrary.

It seems to the court a reflection upon the intelligence of the subscribers and readers of "El Renacimiento" to contend that this editorial was not well understood by them as referring to the plaintiff, and as fully as if his name had been mentioned in every paragraph thereof. And assuredly the omission of his name from the editorial has made the libel less hurtful and disastrous in its results to the reputation and feelings of the plaintiff. Much time was consumed also in adducing evidence to show that none of the twelve defendants were the owners of "El Renacimiento" and "Muling Pagsilang," but that six of them had originally contributed their money as a partriotic donation to the Filipino people, and that Martin Ocampo simply held the money and property of the paper as trustees for this people, and that the paper was being devoted exclusively to philanthropic and patriotic ends, and that Galo and Lichauco had agreed to contribute to the same ends, but had not done so. This proposition in the light of evidence is so preposterous as to entitle it to little, if any, serious consideration. To ask the court to believe it is tantamount to asking the court to stultify reason and common sense. That those seven defendants named contributed their respective sums of money, as shown by the evidence, to the foundation of said newspaper in 1901 for their own personal benefit and profit is fully and unmistakably established. It is equally well established that Martin Ocampo is and was, not only a part owner, but that he has been and is still the administrator or business manager of said newspaper, and that the other six persons named are shareholders, part owners and proprietors thereof, and were such on said 30th of October, 1908. Arcadio Arellano testified positively that Galo Lichauco was one of the seven founders, and that Lichauco contributed P1,000. Martin Ocampo testified that Galo Lichauco promised to contribute an amount which he (the witness) did not remember but that Lichauco did not keep his promise. (See pp. 107, 108, and 231 of the evidence.) The other evidence and circumstances strongly corroborate Arcadio Arellano, and the court is constrained to believe that Arellano told the truth and Ocampo did not. See Exhibit B-J, a copy of "El Renacimiento" containing the article "Infamy Among Comrades," page 87 of the evidence, in which there was published that these seven persons named are the shareholders of the paper. Furthermore, Galo Lichauco failed to appear and testify, so as to enlighten the court as to which witness, Arellano or Ocampo, told the truth, or whether chief editor Kalaw had his authority to publish in said paper, as he did in November 22, 1907, that he, Galo Lichauco, was one of the shareholders. The presumptions are therefore against Galo Lichauco. See S.S. Co. vs. Brancroft-Whitney Co. (36 C. C. A., 136 and 153). It also appears from the evidence that Teodoro M. Kalaw was the chief editor or director of the Spanish section of said paper, and that Lope K. Santos was the chief editor or director of the Tagalog section on said 30th of October, 1908, and that the Spanish and Tagalog sections are, and then were, one and the same newspaper, but printed and published in different languages. It is alleged that said newspaper has a large circulation throughout the Philippine Islands, and was published and circulated daily in the Spanish and Tagalog languages in the city of Manila. Not only are these allegations true, but it is also true that said newspaper has a daily circulation and subscribers in other parts of the world, notably in the United States and Spain; and it has subscribers numbering in toto not less than 5,200, and a daily issue of 6,000 copies.

It is also true as alleged, and the court so finds that since the year 1906 to said 30th of October, 1908, these nine defendants had been maliciously persecuting and attacking the plaintiff in their said newspapers, until at last, on said 30th of October, 1908 with the malicious intention of injuring the plaintiff, who on said date was and still is a member of the Civil Commission and Secretary of the Interior in the Government of the Philippine Islands; and with the object of exposing him to the odium, contempt, and ridicule of the public, they wrote, printed, and published in their said newspaper, in its ordinary number of said 30th of October, 1908, the malicious defamation and false libel of and concerning the plaintiff, entitled and herein alluded to as the editorial "Birds of Prey," which libel was and is highly injurious to the plaintiff and from which the plaintiff has sustained serious damage. This editorial, when properly interpreted and read between the lines, means, besides other things, and was intended by the writer to mean and be understood by the readers thereof as meaning substantially the following: That the plaintiff, Dean C. Worcester, was born on the surface of the globe to eat and devour, like a bird of prey, and that others, born to be eaten and devoured, are the prey and the food of the insatiable voracity of the plaintiff; that the plaintiff had a desire to copy and imitate the most rapacious bird, the eagle, in order to triumph in plundering his fellowman; that the plaintiff besides being an eagle, has the characteristics of thevulture, the owl, and the vampire. That the plaintiff ascended the mountains of Benguet to classify and measure the skulls of the Igorots, and study and civilize them and to espy in his flight with the eye of the bird of prey the large deposits of gold-the prey concealed amidst the mountains-and to appropriate them to himself afterwards, and that to this end the plaintiff had the legal facilities, made and unmade at his own will, and that this is always done for his own benefit. That the plaintiff authorized, inspite of laws and ordinances, the illegal slaughtering is diseased cattle in order to derive benefit from the infected and putrid meant which he himself was obliged to condemn by virtue of his official position; that while the plaintiff presents himself on all occasions with the wrinkled brow of the scientist who consumes his life in the mysteries of the laboratory of science, his whole scientific labor is confined to dissecting insects and importing fish eggs. That although the plaintiff gave an admirable impulse to the discovery of wealthy lodes in Mindanao and Mindoro, and in other virgin regions of the Archipelago, with the money of the people, under the pretext of the public good, as a strict matter of truth his object was to possess all the data and the key to the national wealth for his essentially personal benefit, and that this is shown by his acquisition of immense properties registered under the names of others. That the plaintiff promoted, through secret agents and partners, the sale to the city of Manila of worthless land at fabulous prices, which the city fathers dared not refuse from fear of displeasing the plaintiff, who was behind the project, and which they did not refuse for their own good; that the plaintiff favored concessions for hotels in Manila on filled-in land; with the prospect of enormous profits, at the expense of the blood of the people. That such are the characteristics of the plaintiff, who is at the same time an eagle that surprises and devours, a vulture that gorges his self on deed and rotten meats, an owl that affects a petulant omniscience, and a vampire that sucks the blood of the victim until he leaves it bloodless. And this libelous article concludes with the asseveration in substance

that the plaintiff has been "weighed in the balance and found wanting" "Mane, Tecel, Phares." That this editorial is malicious and injurious goes without saying. Almost every line thereof teems with malevolence, ill will, and wanton and reckless disregard of the rights and feelings of the plaintiff; and from the very nature and the number of the charges therein contained the editorial is necessarily very damaging to the plaintiff. That this editorial, published as it was by the nine defendants, tends to impeach the honesty and reputation of the plaintiff and publishes his alleged defects, and thereby exposes him to public hatred, contempt, and ridicule is clearly seen by a bare reading of the editorial. It suffices to say that not a line is to be found in all the evidence in support of these malicious, defamatory and injurious charges against the plaintiff; and there was at the trial no pretense whatever by the defendants that any of them are true, nor the slightest evidence introduced to show the truth of a solitary charge; nor is there any plea of justification or that the charges are true, much less evidence to sustain a plea. In the opinion of the court "Birds of Prey," when read and considered in its relation to and connection with the other articles libelous and defamatory in nature, published of and concerning the plaintiff by these nine defendants anterior and subsequent to the publication of this article, and having reference to the same subject matter as shown by the evidence, is one of the worst libels of record. It is safe to say that in all the court reports to the Philippine Islands, or of Spain, or the United States, there is not to be found a libel case in which there is a more striking exemplification of the spirit of hatred, bad faith, evil motive, mischievous intent, actual malice, nefarious purpose, base malignity, or gross malevolence. It is proper to observe also that since the beginning of this attack on the plaintiff in the year 1906 down almost to the present time, so far from there being any apology, retraction, or effort to repair the injury already done as far as lay in the power of the defendants, the persecution, wrong, and tortious injury to the plaintiff had been steadily kept up and persisted in, without the slightest abatement of the malevolent spirit. There has been neither retraction, apology, nor reparation; per contra, the libel has been repeated, reiterated, and accentuated, and widely and extensively propagated by these nine defendants through the columns of their said paper and otherwise; and it appears from the evidence that especial effort has been made by these same defendants to give as much publicity as possible to the libelous and defamatory words used of and concerning the plaintiff in said editorial. Through their instrumentality and persistency in asserting and reasserting its truth, this diabolical libel has been spread broadcast over the Philippine Islands and to other parts of the world. In said criminal case No. 4295 some of these nine defendants pleaded the truth of the charges; and in Exhibit A-Q is to be found this language: "The defense will adduce its evidence demonstrating the truth of every one of the facts published." In their said paper of the 11th of January, 1909, there is published statement: "The brief period of time allowed us by the court, at the request of the counsel, to gather evidence which we are to adduce in our effort to demonstrate the truth of the accusation that we have formulated in the article which is the subject of the agitation

against us, having expired, the trial of the case against our director had been resumed." (See pp. 63 and 67 of the evidence.) And about the same time they also declared in their said paper that "there is more graft than fish in the rivers of Benguet." And this in the year of our Lord 1909! the persecution having begun in 1905; thus indicating that there is to be no "let-up" or cessation of the hostile attitude toward the plaintiff or the vilification of his name and assaults upon his character, much less a retraction or an apology, unless drastic means and measures are made use of to the end that there may be no further propagation of the libel, or asseveration, or reiteration of its truth. This article "Birds of Prey" charges the plaintiff with malfeasance in office and criminal acts, and is therefore libelous per se. It in substance charges the plaintiff with the prostitution of his office as a member of the Civil Commission of the Philippine Islands and Secretary of the Interior of said Islands for personal ends. It is charged also substantially that plaintiff in his official capacity wasted the public funds for the purpose of promoting his own personal welfare, and that he violated the laws of the Philippine Islands and the ordinances of the city of Manila. In its essence he is charged with taking part in illegal combinations for the purpose of robbing the people with the object of gain for himself and for others; with being a bird of prey, a vulture (buzzard), an owl, and a vampire that sucks the blood of the victim (meaning the people) until he leaves it bloodless, that is to say, robs the people, until he leaves them wretched and poverty-stricken, deprived of all worldly possessions; and lastly, that he, the plaintiff, like Belshazzar, has been weighed in the balance and found wanting as a high Government functionary; all of which charges are false and malicious and without and foundation whatever in fact, as the evidence fully demonstrates. It is also a matter of fact, and the court so finds, that said defamation was written and published that it might be understood, and it was understood, by the public officials of the Government and the people of the Philippine Islands in general, and wherever else said newspaper may have circulated and been read, as charging the plaintiff with the tortious and criminal acts and conduct charged in said editorial as hereinbefore specified and interpreted. The court finds it also true that, besides assailing the integrity and reviling the reputation of the plaintiff, said nine defendants, in publishing said libel, did so with the malicious intention of inciting the Filipino people to believe that the plaintiff was despotic and corrupt and unworthy of the position which he held, and for this reason to oppose his administration of the office in his charge as Secretary of the Interior, and in this way they endeavored to create enormous difficulties for him in the performance of his official duties, and to make him so unpopular that he would have to resign his office as a member of the Civil Commission of the Philippines and Secretary of the Interior. It is also true that the said nine defendants, by means of said libel, and other like false statements in their said newspaper, have been deliberately trying to destroy the confidence of the public in the plaintiff and to incite the people to place obstacles in his way in the performance of his official duties, in consequence of which the plaintiff has met with many difficulties which have greatly increased his labors as a public official. It further appears from the evidence that not only has an effort been made by these nine defendants to give as much publicity as possible to the charges, but in order that said defamation should attract the attention of the public, they published the same under a

heading in large, bold and showy type, so that it might be easily seen and read by all the subscribers and readers of said paper. In full view of all the evidence, therefore, it is clearly seen that every essential allegation of the complaint is true substantially as therein claimed, and that the whole of the said editorial relating to the misconduct and bad character of the plaintiff is false and without the slightest foundation in fact. Not a scintilla of evidence was introduced in support of any injurious charge made therein against the plaintiff, to say nothing of the plaintiff's evidence that each and every charge of malfeasance therein contained is false, and without reference to whether a failure to plead the truth admits the falsity of the charge. The evidence shows no "special" or "actual pecuniary damage," and none is alleged in the complaint. Two other kinds of damages, however are claimed, to wit, general damages for injuries to the feelings and reputation of the plaintiff and additional work to which he has been put by the conduct of the defendants, which are laid in the sum of P50,000, and "punitive," exemplary, or vindictive damages, "as a warning to the defendants," or as expressed in Act 277 of the Philippine Commission, as a just punishment to the libelers and an example to others," which are laid in the same sum of P50,000. The nine defendants being liable to the plaintiff for damages, the next question to be decided is what amount of damages should be awarded the plaintiff for the injury to his reputation and feelings and his being a proper case for punitive damages, the further question is, what sum shall be awarded as a just punishment to these nine libelers and as an example to others. In neither of these cases is there any precise measure of damages. In determining the amount to be awarded in the first instance it is proper to consider the previous character, influence, reputation, standing, official position, hope of advancement, prospect of promotion, and social status of the plaintiff and his family, and all the circumstances connected with the case. The plaintiff is a man in the prime of life, holding, as he has held for the last ten years an important, responsible, lucrative, high and exalted position of trust and honor in the service of the Government of the United States, in the Philippine Islands, without a blotch on his family escutcheon, so far as the evidence shows, and with an untarnished reputation as a man, as a citizen, and as a Government official. He is a man of honesty, integrity, and high social position; a man of learning, famous as a scientist, and scientific achievements and scholarly attainments, a man of industrious habits, genuine worth, and intellectual force. He has read, studied, traveled and learned much, and is an author of merit and distinction. He was for a long while a professor in one of the largest and most renowned institutions of learning in the world; he is a man of vast experience, broad and liberal views, and an extensive acquaintanceship, not only in the Philippine Islands, but in the United States and other countries of the world. He was well and favorably received by the people wherever he journeyed previous to this atrocious libel upon his integrity and reputation. He has discharged the duties of his lofty official position in a manner that reflects credit upon himself as well as the Government which he represents, and apparently with entire satisfaction to all of his superiors in office and the people generally; and but for this pernicious, outrageous, and highly reprehensible assault upon his good name, fame and reputation, there were prospects of promotion to higher honors. And so far as his personal

and private record is concerned it was without a blemish anterior to the time when these unfounded and dastardly aspersions were cast upon it by these nine defendants. Indeed, it is only necessary to advert to the testimony of the defense itself to ascertain that the plaintiff is an honorable man, and without a stain upon his character, officially or otherwise. It would be interesting to note here in parallel columns and compare the charges made in "Birds of Prey" and the testimony of one of the witnesses for the defendants. Felipe Buencamino, an intelligent witness for the defense, in his testimony (p. 240) when asked the question, Do you know Mr. Worcester?" he answers, "Yes, sir: I know him as an honorable man. I also know him as an honest, honorable public official." In answer to another question he says, "As I have said, I know Mr. Worcester as a private citizen and as a public official, and my opinion of him is that of honorable man and an upright official." And no other witness testified anything to the contrary. "A good name is rather to be chosen than great riches and loving favor rather than silver of gold." "Who steals my purse steals trash; xxx xxx xxx

But he that filches from me my good name, Robs me of that which not enriches him And makes me poor indeed." The enjoyment of a private reputation is as much a constitutional right as the possession of life, liberty or property. It is one of those rights necessary to human society that underlie the whole scheme of human civilization. "The respect and esteem of his fellows are among the highest rewards of a wellspent life vouchsafed to man in this existence. The hope of it is the inspiration of youth, and their possession the solace of later years. A man of affairs, a business man, who has been seen and known of his fellowmen in the active pursuits of life for many years, and who has developed a great character and an unblemished reputation, has secured a possession more useful, and more valuable than lands, or houses, or silver, or gold . . . "The law recognizes the value of such a reputation, and constantly strives to give redress for its injury. It imposes upon him who attacks it by slanderous words, or libelous publication, a liability to make full compensation for the damage to the reputation, for the shame and obloquy, and for the injury to the feelings of the owner, which are caused by the publication of the slander or the libel. "It goes further. If the words are spoken, or the publication is made, with the intent to injure the victim, or with the criminal indifference to civil obligation, it imposes such damages as a jury (in this case the judge), in view of all the circumstances of the particular case adjudge that the wrongdoer ought to pay as an example to the public, to deter others from committing like offenses, and as a punishment for the infliction of the injury.

"In the ordinary acceptance of the term, malice signifies ill will, evil intent, or hatred, while it is legal signification is defined to be "a wrongful act done intentionally, without legal justification." (36 C. C. A., 475.) Surely in the case at bar there was a wrongful or tortious act done intentionally and without the semblance of justification or excuse, or proof that the libelous charges against the plaintiff were "published and good motives and justifiable ends." But the Legislature and the highest judicial authority of these Islands have spoken in no uncertain words with regard to the rights of the plaintiff in this case; and we need not necessarily turn to the law of libel elsewhere, or the decision of the courts in other jurisdictions to ascertain or determine his rights. In sections 1, 2, 3, 4, 6, and 11 of the Libel Law (Act 277, Philippine Commission) is to be found the law of these Islands especially applicable to this case. Section 1 thereof defines libel. Section 2 provides that every person who willfully and with a malicious intent to injure another publishes, or procures to be published, any libel shall be punished as therein provided. Section 3 provides that an injurious publication is presumed to have been malicious if no justifiable motive for making it is shown. Section 4 provides, among other things, that in all criminal prosecutions the truth may be given in evidence; but to establish this defense, not only must the truth of the matter charged as libelous be proven, but also that it was published with good motives and for justifiable ends; and the presumptions, rules of evidence, and special defenses are equally applicable in civil and criminal actions, according to section 11 of said Act. Section 6 is as follows: "Every author, editor, or proprietor of any book, newspaper, or serial publication is chargeable with the publication of any words contained in any part of such book or number of each newspaper or serial as fully as if he were the author of the same." And section 11 provides as follows: "In addition to such criminal action, any person libeled as hereinbefore set forth shall have a right to a civil action against the person libeling him for damages sustained by reason of such libel, and the person so libeled shall be entitled to recover in such civil action not only the actual pecuniary damages sustained by him, but also damages for injury to his feelings and reputation, and in addition such punitive damages as the court may think will be a just punishment to the libeler and an example to others. Suit may be brought in any Court of First Instance having jurisdiction of the parties. The presumptions, rules or evidence and special defenses provided for in this chapter for criminal prosecutions shall be equally applicable in civil actions under this section." "The proprietor of a printing plant is responsible for publishing a libel. According to the legal doctrines and jurisprudence of the United States, the printer of a publication containing libelous matter is liable for the same." (Mr. Justice Torres, in U.S. vs. Ortiz, 8 Phil. Rep., 757.) But said section 6 plainly fixes the liability of editors and proprietors of newspapers, and is clear enough for all the purposes of this case. Mr. Justice Carson (5 Phil. Rep. 1551), speaking for our Supreme Court, says:

"When there is an averment in the complaint that the defamatory words used refer to the plaintiff, and it is proven that the words do in fact refer to him and are capable of bearing such special application, an action for libel may be maintained even though the defamatory publication does not refer to the plaintiff by name." And Mr. Justice Willard (12 Phil. Rep., 4282), for the same high authority, says: "In an action for libel damages for injury to feelings and reputation may be recovered though no actual pecuniary damages are proven. "Punitive damages cannot be recovered unless the tort is aggravated by evil motive, actual malice, deliberate violence or oppression." That is to say, if there is evil motive, or actual malice or deliberate violence, or oppression then punitive damages, or "smart money," may be recovered. And Justice Carson (U.S. vs. Sedano, 14 Phil., Rep., 338), also says: "Actual or express malice of an alleged libelous publication may be inferred from the style and tone of the publication. "The publication of falsehood and calumny against public officers and candidates for public office is specially reprehensible and is an offense most dangerous to the people and to the public welfare. "The interest of society require that immunity should be granted to the discussion of public affairs, and that all acts and matters of a public nature may be freely published with fitting comments and strictures; but they do not require that the right to criticise public officers shall embrace the right to base such criticism under false statements of fact, or attack the private character of the officer, or to falsely impute to him malfeasance or misconduct in office." And there are almost numberless English and American authorities in perfect harmony with these decisions of our Supreme Court too numerous indeed to be cited here; and it is not necessary. Among the leading cases, however, in the United States, is that of Scott vs. Donald (165 U.S., 58) and cases therein cited. In this case the court says: "Damages have been defined to be the compensation which law will allow for an injury done, and are said to be exemplary and allowable in excess of the actual loss when the tort is aggravated by evil motive, actual malice, deliberate violence or oppression," which is in entire harmony with Justice Willard's decision hereinbefore cited. And quoting from the decision in Day vs. Woodworth (13 Howard, 371) the same high court says: "In actions of trespass, where the injury has been wanton and malicious, or gross or outrageous, courts permit juries (here the court) to add to the measured compensation of the plaintiff which he would have been entitled to recover, had the injury been inflicted without design or intention, something further by way of punishment or example, which has sometimes been called "smart money." "

It thus clearly appears that the facts established in the case at bar are more than sufficient to bring it within the rule of law here laid down by the highest judicial authority. Section 11 of the Libel Law expressly allows general damages; and Mr. Justice Willard, in Macleod vs. Philippine Publishing Company,3 says: "The general damages which are allowed in actions of libel are not for mental suffering alone, but they are allowed for injury to the standing and reputation of the person libeled, and the common law of England and America presumed that such damages existed without proof thereof from the mere fact of publication of the libel." In Day vs. Woodworth, the Supreme Court of the United States recognized the power of a jury in certain actions in tort to assess against the tort feasor punitive damages. Where the injury has been inflicted maliciously or wantonly, and with circumstances of contumely, or indignity, the judge or jury, as the case may be, is not limited to the ascertainment of a simple compensation for the wrong committed against the aggrieved person. "The public position of the plaintiff, as an officer of the Government, and the evil example of libels, are considerations with the jury (here the judge) for increasing damages." (Tillotson vs. Cheetham, 3 Johns, 56.) "The character, condition and influence of the plaintiff are relevant on the matter of the extent of damages." (Littlejohn vs. Greely, 22 How. Prac., 345; 13 Abb. Prac., 41, 311.) "Where the publication is libelous, the law presumes that it was made with malice technical, legal malice, but not malice in fact and the amount of damages depends in a large degree upon the motives which actuated the defendants in its publication; and in such cases the law leaves it to the jury (here the judge) to find a return such damages as they think right and just, by a sound, temperate, deliberate, and reasonable exercise of their functions as jurymen." (Erber vs. Dun. (C. C.) 12 Fed., 526.) "Actions of libel, so far as they involve questions of exemplary damages, and the law of principal and agent, are controlled by the same rules as are other actions of tort. The right of a plaintiff to recover exemplary damages exists wherever a tortious injury has been inflicted recklessly or wantonly, and it is not limited to cases where the injury resulted from personal malice or recklessness of the defendant. It follows that the owner of a newspaper is as responsible for all the acts of omission and commission of those he employs to edit it and manage its affairs, as he would be if personally managing the same.' (Malloy vs. Bennett, (C. C.) 15 Fed., 371.) "The fact that a publication, libelous per se, was made without any attempt to ascertain its correctness is sufficient to justify a finding that defendant committed libel client with a wanton indifference, and with actual malice sufficient to sustain exemplary damages." (Van Ingen vs. Star Co., 1 App. Div., 429, 37 N.Y., 114.) "The court is not authorized to set aside a verdict for $45,000 in an action for libel, where it appears that plaintiff was persistently persecuted in the columns of defendant's newspaper, and that he and his family were held up to public contempt and ridicule, and defendants withdraw from the case after failing to establish a plea of justification." (Smith vs. Times Co., (Com. p. 1) 4 Pa. Dist. Rep., 399.)

"In considering the amount with the defendant shall pay, on this account (exemplary damages) the turpitude of his conduct and his financial ability are only considered; and such consideration is not in view of the injury or distress of the plaintiff, but in behalf of the public; the wrongful act is regarded as an indication of the actor's vicious mind an overt deed of vindictive or wanton wrong, offensive and dangerous to the public good. This is the view of those damages which generally prevails." (Sutherland on Damages, vol. 2, p. 1092. title Exemplary Damages.) "Punitive damages are recoverable not to compensate the plaintiff, but solely to punish the defendant. This legal motive would suffer defeat if punitive damages could not be given for a malicious attack on a reputation too well established to receive substantial injury at the hands of a libeler." (Judge Bond in Ferguson vs. Pub. Co., 72 Mo. App., 462.) It may be suggested that the reputation of the plaintiff in this case is too well established to be seriously affected by the defamatory words used of and concerning him in "Birds of Prey," but it would not be proper to gravely consider this suggestion. The conditions in these Islands are peculiar. The minds, thoughts, and opinions of the people are easily molded, and the public is credulous and perhaps frequently too ready to believe anything that may be said in derogation of an American official, especially when it is published and vouched for by the editorial and business management and proprietors if a newspaper of the prominence, pretensions, circulation and influence if "El Renacimiento," which paper is everlastingly proclaiming in its columns that it is being conducted and published solely in the interests of the Filipino people pro bono publico. There is stronger disposition to give credence to what is said in a newspaper here in the Islands the elsewhere, and when abuse, vilification, and defamation are persistently practiced for a period of several years, without modification or retraction, but with renewed emphasis, the people naturally come to believe in its verity and authenticity. It is apparent from the evidence that as an effect of the persecution of the plaintiff by "El Renacimiento" and the libel published in its columns, the minds of the major part of the Filipino people have been poisoned and prejudiced against the plaintiff to such an extent that he is regarded by these people as odious, dishonest, unscrupulous and tyrannical. It may be that his reputation has not suffered so severely with those of his own race, but when it is considered that his vocation has tenfold more to do with the Filipinos than with his own people, that his official duties place him in constant contact with them, and that his success in his chosen career is largely dependent upon their good will and support, it is manifest that the damage to his reputation has been very great and that a large sum of money should be awarded to indemnify him, as far as money can indemnify, for the loss of his good name with the Filipino people. The plaintiff came to the Philippine Islands when a young man, full of hope and ambition. Since his arrival he has devoted himself incessantly and indefatigably to the uplifting of the inhabitants of the Archipelago and to the faithful performance, as far as he was able, of the pledges and promises of the Government to the Filipino people. The duties of his particular office were such as brought him in more immediate and constant contract with the people than any other official of the same category in these Islands. It is clearly shown that the plaintiff faithfully endeavored to perform, and did efficiently perform, all of these duties, doing everything that he could in an unselfish and disinterested

manner of the welfare and development of the country and its people, knowing full well that his career, as well as his advancement, depended largely upon the good will of these people, and that by incurring their censure or displeasure he would have little hope of success in his chosen work. Imagine, therefore, the chagrin, disappointment, mortification, mental suffering, and distress, and perturbation of spirit that would necessarily be occasioned him when he discovered that through the nefarious, studied, and practiced persecution of the paper in question, these high hopes were blasted, and that, instead of having gained the respect and gratitude of the people for the assiduous labors devoted to their uplifting, they had been made to believe that, instead of being a benefactor, he was a vampire that was sucking their life blood, a corrupt politician who was squandering the money wrung from the people by means of taxation, in schemes for his own personal aggrandizement and enrichment. That instead of developing the mineral wealth of the Islands he was taking up all the rich veins and appropriating them in the names of subservient tools, to his own personal use, benefit and profit. That instead of protecting the people from disease, he was, by means of infected meat and for his own personal gain, spreading contagion among them. That he united in his person all the bad qualities of the vulture, the eagle, and the vampire; that, in short, he was a "bird of prey," with all that is implied in that term in its worst acceptation; that he was a corrupt tyrant, who never lost an opportunity to do the people hurt; that instead of wishing them well and seeking their advancement, he was their enemy, who never lost an opportunity to degrade and humiliate them; that instead of preferring them for office and positions of official trust, he treated them with all sorts of contempt and indifference. It is difficult to appreciate the feelings of a refined soul in its contemplation of a result so disastrous, so unjust, and so unmerited. It is furthermore shown that when the plaintiff came to these Islands a young scientist he had already won fame in his own country; that he is a fellow of the important scientific associations in the world. His election as a fellow or member of these scientific bodies shows that his labors in the Philippines were the object of solicitude by the prominent scientific and learned men not only of his own race, but in many other civilized countries of the world. Important results were evidently expected of him by them, and it can not be doubted that they expected of him of life honestly devoted to the conscientious discharge of his duties as a trusted public functionary of the American Government in the Philippine Islands. And yet he is falsely denounced in the columns of said newspaper to his fellows of these societies as a man who is so absolutely corrupt, so inordinately selfish and avaricious that he has not considered for a moment the duties incumbent upon him; that he has been oblivious to every obligation of trust and confidence, and that he is unworthy of the respect of honest men. One witness testified that he read this libel in the public library of the city of Boston. It is furthermore shown that copies of this paper went to Spain, England, and to different parts of the United States; and inasmuch as the plaintiff is a man of prominence in the scientific world, it is to be inferred that his fellows became more or less aware of these heinous charges.

Thus we find that the plaintiff is here confronted with disappointed ambition and frustrated hopes, and placed in the humiliating attitude of having to explain to his fellows that the charges are untrue, of adducing evidence to clear himself, perhaps never with complete success, of the stain that has been cast upon his reputation by the libelous and defamatory declarations contained in "Birds of Prey." In view of the foregoing findings of fact and circumstances of the case and the law applicable thereto, It is the opinion of the court, and the court so finds, that the plaintiff has sustained damages on account of wounded feelings and mental suffering and injuries to his standing and reputation in the sum of thirty-five thousand (P35,000) pesos, and that he is entitled to recover this sum of the nine defendants named, as being responsible for having written, printed, and published said libel; and that the plaintiff is entitled to recover of them the further sum of twenty-five thousand (P25,000) pesos, as punitive damages, which the court thinks will be a just punishment to these nine libelers and an example to others. Wherefore, it is so ordered and adjudged that the plaintiff, Dean C. Worcester, have and recover of the defendants, Martin Ocampo, Teodoro M. Kalaw, Lope K. Santos, Manuel Palma, Arcadio Arellano, Angel Jose, Galo Lichauco, Felipe Barretto, and Gregorio M. Cansipit, jointly and severally, the sum of sixty thousand (P60,000) pesos, and the costs of suit, for which execution may issue. It is ordered. At Manila, P.I., this 14th day of January , 1910. From said decision the defendants appealed and made the following assignments of error in this court: I. The court erred in overruling our motions for suspension of this case, in its present state, until final judgment should be rendered in criminal case No. 4295 of the Court of First Instance of Manila, pending appeal in the Honorable Supreme Court, for libel based also on the editorial, "Birds of Prey." II. The court erred in admitting as evidence mere opinion adduced by counsel for the plaintiff with the intention of demonstrating to whom the editorial, alleged to the libelous, refers. III. The court erred in giving greater preponderance to the opinions of the witnesses for the plaintiff than to the expert testimony of the defense. IV. The court erred in declaring the editorial on which the complaint is based to be libelous per se and to refer necessarily to the plaintiff, Dean C. Worcester. V.

The court erred in declaring the defendants Martin Ocampo, Manuel Palma, Arcadio Arellano, Angel Jose, Felipe Barretto, Gregorio M. Cansipit, and Galo Lichauco to be owners of "El Renacimiento." VI. The court erred in not admitting Exhibits 1 and 3 presented by counsel for the defendants. VII. The court erred in rendering judgment against the defendants. VIII. The court erred in sentencing the defendants jointly "and severally" to pay to the plaintiff, Dean C. Worcester, the sum of P60,000. IX. The court erred in not ordering that execution of the judgment to be confined to the business known as "El Renacimiento" and to the defendant Teodoro M. Kalaw, without extending to property of the alleged owners of said newspaper which was not invested therein by them at its establishment. X. The court erred in granting damages to the plaintiff by virtue of the judgment rendered against the defendants. XI. The court, finally, erred in granting to the plaintiff punitive damages against the alleged owners of "El Renacimiento," admitting the hypothesis that said editorial is libelous per se and refers to the Honorable Dean C. Worcester. The theory of the defendants, under the first assignment of error, is that the civil action could not proceed until the termination of the criminal action, relying upon the provisions of the Penal Code in support of such theory. This court, however, has decided in the case of Ocampo et al. vs. Jenkins (14 Phil. Rep., 681) that a judgment in a criminal prosecution for libel, under the provisions of Act 277 of the Civil commission, constitutes no bar or estoppel in a civil action based upon the same acts or transactions. The reason most often given for this doctrine is that the two proceedings are not between the same parties. Different rule as to the competency of witnesses and the weight of evidence necessary to the findings in the two proceedings always exist. As between civil and criminal actions under said Act (No. 277) a judgment in one is no bar or estoppel to the prosecution of the other. A judgment in a criminal cause, under said Act, can not be pleaded as res adjudicata in a civil action. (Stone vs.U.S., 167 U.S., 178; Boyd vs. U.S., 616 U. S., 616, 634; Lee vs. U.S., 150 U.S., 476, 480; U.S. vs. Jaedicke, 73 Fed. Rep., 100; U.S. vs. Schneider, 35 Fed. Rep., 107; Chamberlain vs. Pierson, 87 Fed. Rep., 420; Steel vs.Cazeaux, 8 Martin (La.), 318, 13 American Decisions, 288; Betts vs. New Hartford, 25 Conn., 185.)

In a criminal action for libel the State must prove its case by evidence which shows the guilt of the defendant, beyond a reasonable doubt, while in a civil action it is sufficient for the plaintiff to sustain his cause by a preponderance of evidence only. (Ocampo vs. Jenkins (supra); Reilly vs. Norton, 65 Iowa, 306; Sloane vs. Gilbert, 27 American decisions, 708; Cooley on Torts, sec. 208; Greenleaf on Evidence, 426; Wigmore on Evidence, secs. 2497, 2498.) With reference to the second assignment of error above noted, we find that this court has already decided the question raised thereby, in the case of U. S. vs. Ocampo et al. (18 Phil. Rep., 1). During the trial of the cause the plaintiff called several witnesses for the purpose of showing that the statements made in said alleged libelous editorial were intended to apply to the Honorable Dean C. Worcester, Secretary of the Interior. The defendants duly objected to these questions and excepted to the ruling of the court admitting them. In the case of Russell vs. Kelley (44 Cal., 641, 642) the same question was raised and the court, in its decision, said: The rule laid down in 2 Stockey on Slander (p. 51) is that the application of the slanderous words to the plaintiff and the extrinsic matters alleged in the declaration may be shown by the testimony of witnesses who knew the parties and circumstances and who can state their judgment and opinion upon the application and meaning of the terms used by the defendant. It is said that where the words are ambiguous on the face of the libel, to whom it was intended to be applied, the judgment and opinion of witnesses, who from their knowledge of the parties and circumstances are able to form a conclusion as to the defendant's intention and application of the libel is evidence for the information of the jury. Mr. Odgers, in his work on Libel and Slander (p. 567), says: The plaintiff may also call at the trial his friends or others acquainted with the circumstances, to state that, in reading the libel, they at once concluded it was aimed at the plaintiff. It is not necessary that all the world should understand the libel. It is sufficient if those who know the plaintiff can make out that he is the person meant. (See also Falkard's Stockey on Libel and Slander, 4th English edition, 589.) The correctness of this rule is not only established by the weight of authority but is supported by every consideration of justice and sound policy. The lower court committed no error in admitting the opinion of witnesses offered during the trial of the cause. One's reputation is the sum or composite of the impressions spontaneously made by him from time to time, and in one way or another, upon his neighbors and acquaintances. The effect of a libelous publication upon the understanding of such persons, involving necessarily the identity of the person libeled is of the very essence of the wrong. The issue in a libel case concerns not only the sense of the publication, but, in a measure its effect upon a reader acquainted with the person referred to. The correctness of the opinion of the witnesses as to the identity of the person meant in the libelous publication may always be tested by cross-examination. (Enquirer Co. vs. Johnston, 72 Fed. Rep., 443; 2nd Greenleaf on Evidence, 417; Nelson vs.Barchenius, 52 Ill., 236; Smith vs. Miles, 15 Vt., 245; Miller vs. Butler, 6 Cushing (Mass.), 71.) It is true that some of the courts have established a different rule. We think, however, that a large preponderance of the decisions of the supreme courts of the different States is in favor of the doctrine which we have announced here.

We are of the opinion that assignments of error Nos. 3, 4, and 7 may fairly be considered together, the question being whether or not the evidence adduced during the trial of the cause in the lower court shows, by a preponderance of the evidence, that the said editorial was libelous in its character. Here again we find that this question has been passed upon by this court in the case of U. S. vs. Ocampo et al. (18 Phil. Rep., 1), and we deem it unnecessary to discuss this question again, for the reason that the evidence adduced in the present cause was practically the same, or at least to the same effect, as the evidence adduced in the cause of U.S. vs.Ocampo et al. It is sufficient here to say that the evidence adduced during the trial of the present cause shows, by a large preponderance of the evidence, that said editorial was one of the most pernicious and malicious libels upon a just, upright and honorable official, which the courts have ever been called upon to consider. There is not a scintilla of evidence in the entire record, notwithstanding the fact that the defendants from time to time attempted to make a show of proving the truthfulness of the statements made in said editorial, which in any way reflects upon the character and high ideals of Mr. Dean C. Worcester, in the administration of his department of the Government. With reference to the fifth assignment of error, to wit: That the court erred in holding that the defendants, Martin Ocampo, Manuel Palma, Arcadio Arellano, Angel Jose, Felipe Barretto, Gregorio M. Cansipit, and Galo Lichauco, were the proprietors of "El Renacimiento," the lower court said: Much time was consumed also in adducing evidence to show that none of the twelve defendants were the owners of "El Renacimiento" and "Muling Pagsilang," but that six of them had originally contributed their money as a patriotic donation to the Filipino people, and that Martin Ocampo simply held the money and property of the paper as trustee for this people, and that the paper was being devoted exclusively to philanthropic and patriotic ends, and that Galo Lichauco had agreed to contribute to the same ends but had not done so. "This proposition," said the lower court, "in the light of the evidence, is so preposterous as to entitle it to little, if any, serious consideration. To ask the court to believe it is tantamount to asking the court to stultify reason and common sense. That those seven defendants named contributed their respective sums of money, as shown by the evidence, to the foundation of said newspaper in 1901, for their own personal benefit and profit, is fully and unmistakably established. It is equally well established that Martin Ocampo is and was, not only a part owner, but that he has been and is still the administrator or business manager of said newspaper, and that the other six persons named are shareholders, part owners and proprietors thereof and were such on the said 30th of October, 1908." Examining the evidence adduced during the cause in the lower court, we find, sometime before the commencement of the present action and before any question was raised with reference to who were the owners of the said newspaper, that the defendant, Arcadio Arellano, in the case of United States vs. Jose Sedano (14 Phil. Rep., 338), testified upon that question as follows: Q. A. Q. A. Q. A. Who are the proprietors of "El Renacimiento"? I, Martin Ocampo, Gregorio Mariano (Cansipit), Mr. Barretto, and Galo Lichauco. Who else? No one else. And Rafael Palma is not so? No, sir; Manuel Palma, the brother of Rafael Palma.

During the trial of the present cause, Arcadio Arellano testified that his declarations in other cause were true. It also appears from the record (Exhibit B-J) that in the month of November, 1907, long before the commencement of the present action, "El Renacimiento," in reply to an article which was published in "El Comercio," published the following statement: They (it) say (s) that this enterprise" (evidently meaning the publication of "El Renacimiento") "is sustained by Federal money; that we are inspired by Federal personages. We declare that this, besides being false, is calumnious. The shareholders of this company are persons well known by the public, and never at any moment of their lives have they acted with masks on--those masks for which "El Comercio" seems to have so great an affection. They are, as the public knows: Seores Martin Ocampo, Manuel Palma, Arcadio Arellano, Angel Jose, Galo Lichauco, Felipe Barretto, and Gregorio Cansipit. Arcadio Arellano also testified during the trial of the present cause that he contributed P750 to the establishment of "El Renacimiento;" that Martin Ocampo contributed the sum of P500; that Mariano Cansipit, Felipe Barretto and Angel Jose contributed the sum of P250 or P500 each; that Galo Lichauco contributed the sum of P1,000 and that Manuel Palma contributed P3,000. During the trial of the present cause Arcadio Arellano, Martin Ocampo, and Angel Jose testified as witnesses, relating to the ownership of the newspaper called "El Renacimiento." They testified that whatever money they gave for the purpose of establishing said newspaper, was given as a donation, and that they were neither the owners nor coowners of said periodical. The defendants, Manuel Palma, Galo Lichauco, Felipe Barretto, and Gregorio Cansipit, did not testify as witnesses during the trial of the cause in the lower court. No reason is given for their failure to appear and give testimony in their own behalf. The record does not disclose whether or not the declarations of Arcadio Arellano, in the case of U. S. vs. Sedano (14 Phil. Rep., 338) at the time they were made, were called to the attention of Manuel Palma, Galo Lichauco, Felipe Barretto, and Gregorio Cansipit, as well as the reply to "El Comercio," above noted. Proof of said declarations and publication was adduced during the trial of the cause in the present case, and the attorney of these particular defendants well knew the purpose and effect of such evidence, if not disputed; but, notwithstanding the fact that said declarations and publication were presented in evidence, and notwithstanding the fact that the attorney for the defendants knew of the purpose of such proof, the defendants, Palma, Lichauco, Barretto, and Cansipit, were not called as witnesses for the purpose of rebutting the same. It is a well settled rule of evidence, that when the circumstances in proof tend to fix the liability on a party who has it in his power to offer evidence of all the facts as they existed and rebut the inferences which the circumstances in proof tend to establish, and he fails to offer such proof, the natural conclusion is that the proof, if produced, instead of rebutting would support the inferences against him, and the court is justified in acting upon that conclusion. (Railway Company vs. Ellis, C. C. A. Reports, vol. 4, p. 454; Commonwealth vs. Webster, 5 Cush. (Mass.), 295; People vs. McWhorter 4 Barb. (N. Y.), 438.) Lord Mansfield, in the case of Blatch vs. Archer (Cowper, 63, 65) said: It is certainly a maxim that all the evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other side to have contradicted. Mr. Starkey, in his valuable work on evidence (vol. 1, p. 64), lays down the rule that:

The conduct of a party in omitting to produce evidence in elucidation of the subject matter in dispute, which is within his power and which rests peculiarly within his own knowledge, frequently offers occasion for presumptions against him, since it raises the strong suspicion that such evidence, if adduced, would operate to his prejudice. (Pacific Coast et al. Co. vs. Bancroft-Whitney Co., 36 C. C. A. Reports, 136, 153.) At the time of the said declarations of Arcadio Arellano in the case of Sedano and at the time of the said publication in reply to "El Comercio," there was no reason for stating anything except the truth: neither does there seem to have been any reason for publishing the fact that the defendants were the owners of "El Renacimiento" unless it was true. At the time there seemed to be no reason to have it appear that they were donors and public benefactors only. They seemed to be proud of the fact that they were the owners. The editors, publishers, and managers of "El Renacimiento," at the time the reply to "El Comercio" was published, seemed to be anxious to announce to the public who its owners were. It ("El Renacimiento") had not then realized that it belonged to no one; that it had been born into the community without percentage; that it had been created a terrible machine for the purpose of destroying the good character and reputation of men without having any one to respond for its malicious damage occasioned to honorable men; that it was a cast-off, without a past or the hope of a future; that it was liable to be kicked and buffetted about the persecuted and destroyed without any one to protect it; that its former friends and creators had scattered hither and thither and had disappeared like feathers before a cyclone, declaring, under oath, that they did not know their offspring and were not willing to recognize it in public. It seems to have been a Moses found in the bulrushes, destined by its creators to be a great good among the Filipino people, in teaching them to respect the rights of persons and property; but, unlike its Biblical prototype, it became, by reason of its lack of parentage, an engine of destruction let loose in the State, to enter the private abode of lawabiding citizens and to take from them their honor and reputation, which neither it nor the State could restore. To rob a man of his wealth is to rob him of trash, but to take from him his good name and reputation is to rob him of that which does not make the robber richer and leaves the person robbed poor indeed. The appellants tried to make it appear that the money which they gave for the establishment of "El Renacimiento" was a pure donation. They claim that it was a donation to the Filipino people. They do not state, however, or attempt to show what particular persons were to manage, control, and direct the enterprise for which the donation was made. A donation must be made to definite persons or associations. A donation to an indefinite person or association is an anomaly in law, and we do not believe, in view of all of the facts, that it was in fact made. A donation must be made to some definite person or association and the donee must be some ascertained or ascertainable person or association. A donation may be made for the benefit of the public, but it must be made, in the very nature of things, to some definite person or association. A donation made to no person or association could not be regarded as a donation in law. It could not be more than an abandonment of property. Of course where a donation is in fact made, without reservation to a particular person or association, the donor is no longer the owner of the thing donated nor responsible, in any way, for its use, provided that the object, for which the donation was made, was legal. A person does not become an owner or part owner of a church, for example, to the construction of which he has made a donation; neither is he responsible for the use to which said edifice may be applied. No one disputes the fact that donations may be made for the public use, but they must be made to definite persons or associations, to be administered in accordance with the purpose of the gift.

We can not believe, in the light of the whole record, that the defendants and appellants, at the time they presented the defense that they were donors simply and not owners, had a reasonable hope that their declarations as to said donation, given in the manner alleged, would be believed by the court. After a careful examination of the evidence brought to this court and taking into consideration the failure of the other defendants to testify, we are of the opinion that a preponderance of such evidence shows that the defendants, Martin Ocampo, Manuel Palma, Arcadio Arellano, Angel Jose, Galo Lichauco, Felipe Barretto, and Gregorio M. Cansipit, were the coowners of the newspaper known as "El Renacimiento," at the time of the publication of the said alleged libel. With reference to the sixth assignment of error above noted, to wit: That the lower court committed an error in not admitting in evidence the judgment of acquittal of the defendant, Lope K. Santos, rendered in the criminal cause, we are of the opinion that the refusal to admit said evidence in the civil cause was not an error. The fact that the evidence in the criminal cause was insufficient to show that Lope K. Santos was guilty of the crime charged, in no way barred the right of the person injured by said alleged libel to maintain the present civil action against him. (Ocampo vs. Jenkins, 14 Phil. Rep., 681.) The criminal action had to be sustained by evidence showing the culpability of the defendant beyond a reasonable doubt, while in the civil action it is sufficient to show that the defendants injured the plaintiff by the alleged libelous publication, by a preponderance of the evidence only. (Greenleaf on Evidence, sec. 426; Cooley on Torts, 208; Reilley vs. Norton, 65 Iowa, 306; Sloane vs. Gilbert, 23 Am. Dec., 708.) In the case of Steel vs. Cazeaux (8 Martin, La., 318; 13 American Decisions, 288), the supreme court of Louisiana said: A judgment of conviction in a criminal prosecution can not be given in evidence in a civil action. In the case of Betts et al. vs. New Hartford (25 Conn., 180) Mr. Justice Ellsworth said (in a case where a judgment in a criminal case was offered in evidence): A conviction in a criminal case is not evidence of facts upon which the judgment was rendered, when those facts come up in a civil case, for this evidence would not be material; and so the law is perfectly well settled. (1 Greenleaf on Evidence, secs. 536, 524; 1 Phillips on Evidence, 231; Hutchinson vs. Bank of Wheeling, 41 Pa. St., 42; Beausoleil vs. Brown, 12 La. Ann., 543; McDonald vs. Stark, 176 Ill., 456, 468.) While we believe that the lower court committed no error in refusing to admit the sentence acquitting Lope K. Santos in the criminal case, we are of the opinion, after a careful examination of the record brought to this court, that it is insufficient to show that Lope K. Santos was responsible, in any way, for the publication of the alleged libel, and without discussing the question whether or not the socalled Tagalog edition of "El Renacimiento" and "El Renacimiento" constituted one and the same newspaper, we find that the evidence is insufficient to show that Lope K. Santos is responsible in damages, in any way, for the publication of the said alleged libel. The appellants discussed the eight and ninth assignments of error together, and claim that the lower court committed an error in rendering a judgment jointly and severally against the defendants and in allowing an execution against the individual property of said owners, and cite provisions of the Civil and Commercial Codes in support of their contention. The difficulty in the contention of the appellants is that they fail to recognize that the basis of the present action is a tort. They fail to recognize the universal doctrine that each joint tort feasor is not only individually liable for the tort in

which he participates, but is also jointly liable with his tort feasors. The defendants might have been sued separately for the commission of the tort. They might have been sued jointly and severally, as they were. (Nicoll vs. Glennie, 1 M. & S. (English Common Law Reports), 558.) If several persons jointly commit a tort, the plaintiff or person injured, has his election to sue all or some of the parties jointly, or one of them separately, because the tort is in its nature a separate act of each individual. (1 Chiddey, Common Law Pleadings, 86.) It is not necessary that the cooperation should be a direct, corporeal act, for, to give an example, in a case of assault and battery committed by various persons, under the common law all are principals. So also is the person who counsels, aids or assists in any way he commission of a wrong. Under the common law, he who aided or assisted or counseled, in any way, the commission of a crime, was as much a principal as he who inflicted or committed the actual tort. (Page vs. Freeman, 19 Mo., 421.) It may be stated as a general rule, that the joint tort feasors are all the persons who command, instigate, promote, encourage, advise, countenance, cooperate in, aid or abet the commission of a tort, or who approve of it after it is done, if done for their benefit. They are each liable as principals, to the same extent and in the same manner as if they had performed the wrongful act themselves. (Cooley on Torts, 133; Moir vs. Hopkins, 16 Ill., 313 (63 Am. Dec., 312 and note); Berry vs. Fletch, 1st Dill., 67; Smithwick vs. Ward, 7 Jones L. 64; Smith vs. Felt, 50 Barb. (N. Y.), 612; Shepard vs. McQuilkin, 2 W. Va., 90; Lewis vs. Johns, 34 Cal., 269.) Joint tort feasors are jointly and severally liable for the tort which they commit. The person injured may sue all of them, or any number less than all. Each is liable for the whole damage caused by all, and all together are jointly liable for the whole damage. It is no defense for one sued alone, that the others who participated in the wrongful act are not joined with him as defendants; nor is it any excuse for him that his participation in the tort was insignificant as compared with that of the others. (Forebrother vs. Ansley, 1 Campbell (English Reports), 343; Pitcher vs. Bailey, 8 East, 171; Booth vs. Hodgson, 6 Term Reports, 405; Vose vs. Grant, 15 Mass., 505; Achesonvs. Miller, 18 Ohio, 1; Wallace vs. Miller, 15 La. Ann., 449; Murphy vs. Wilson, 44 Mo., 313; Bishop vs. Ealey, 9 Johnson (N. Y.), 294.) Joint tort feasors are not liable pro rata. The damages can not be apportioned among them, except among themselves. They can no insist upon an apportionment, for the purpose of each paying an aliquot part. They are jointly and severally liable for the full amount. (Pardrige vs. Brady, 7 Ill. App., 639; Carney vs. Read, 11 Ind., 417; Lee vs. Black, 27 Ark., 337; Bevins vs. McElroy, 52 Am. Dec., 258.) A payment in full of the damage done, by one of the joint tort feasors, of course satisfies any claim which might exist against the others. There can be but one satisfaction. The release of one of the joint tort feasors by agreement, generally operates to discharge all. (Wright vs. Lathrop, 2 Ohio, 33; Livingston vs. Bishop, 1 Johnson (N.Y.), 290; Brown vs. Marsh, 7 Vt., 327; Ayer vs. Ashmead, 31 Conn., 447; Eastman vs. Grant, 34 Vt., 387; Turnervs. Hitchcock, 20 Iowa, 310; Ellis vs. Esson, 50 Wis., 149.) Of course the courts during the trial may find that some of the alleged joint tort feasors are liable and that others are not liable. The courts may release some for lack of evidence while condemning others of the alleged tort feasors. And this is true even though they are charged jointly and severally. (Lansing vs. Montgomery, 2 Johnson (N. Y.), 382; Drake vs. Barrymore, 14 Johnson, 166; Owens vs. Derby, 3 Ill., 126.) This same principle is recognized by Act 277 of the Philippine Commission. Section 6 provides that:

Every author, editor or proprietor . . . is chargeable with the publication of any words in any part . . . or number of each newspaper, as fully as if he were the author of the same. In our opinion the lower court committed no error in rendering a joint and several judgment against the defendants and allowing an execution against their individual property. The provisions of the Civil and Commercial Codes cited by the defendants and appellants have no application whatever to the question presented in the present case. The tenth assignment of error above noted relates solely to the amount of damages suffered on account of wounded feelings, mental suffering and injury to the good name and reputation of Mr. Worcester, by reason of the alleged libelous publication. The lower court found that the damages thus suffered by Mr. Worcester amounted to P35,000. This assignment of error presents a most difficult question. The amount of damages resulting from a libelous publication to a man's good name and reputation is difficult of ascertainment. It is nor difficult to realize that the damage thus done is great and almost immeasurable. The specific amount the damages to be awarded must depend upon the facts in each case and the sound discretion of the court. No fixed or precise rules can be laid down governing the amount of damages in cases of libel. It is difficult to include all of the facts and conditions which enter into the measure of such damages. A man's good name and reputation are worth more to him than all the wealth which he can accumulate during a lifetime of industrious labor. To have them destroyed may be eminently of more damage to him personally than the destruction of his physical wealth. The loss is immeasurable. No amount of money can compensate him for his loss. Notwithstanding the great loss which he, from his standpoint, sustains, the courts must have some tangible basis upon which to estimate such damages. In discussing the elements of damages in a case of libel, the Honorable James C. Jenkins, who tried the present case in the court below, correctly said that, "The enjoyment of a private reputation is as much a constitutional right as the possession of life, liberty or property. It is one of those rights necessary to human society, that underlie the whole scheme of human civilization. The respect and esteem of his fellows are among the highest rewards of a wellspent life vouchsafed to man in this existence. The hope of it is the inspiration of youth and its possession is a solace in later years. A man of affairs, a business man, who has been seen known by his fellowmen in the active pursuits of life for many years, and who has developed a great character and an unblemished reputation, has secured a possession more useful and more valuable than lands or houses or silver or gold. The law recognizes the value of such a reputation and constantly strives to give redress for its injury. It imposes upon him who attacks it by slanderous words or libelous publications, the liability to make full compensation for the damage to the reputation, for the shame, obloquy and for the injury to the feelings of its owner, which are caused by the publication of the slander or libel. The law goes further. If the words are spoken or the publication is made with the intent to injure the victim or with criminal indifference to civil obligation, it imposes such damages as the jury, in view of all the circumstances of the particular case, adjudge that the wrongdoer ought to pay as an example to the public and to deter others from doing likewise, and for punishment for the infliction of the injury." As was said above, the damages suffered by Mr. Worcester to his good name and reputation are most difficult of ascertainment. The attorney for the appellants, in his brief, lends the court but little assistance in reaching a conclusion upon this question. The appellants leaves the whole question to the discretion of the court, without any argument whatever. After a careful examination, we are of the opinion that part of the judgment of the lower court relating to the damages suffered by the Honorable Dean C. Worcester, should be modified, and that a judgment should be rendered in favor of Mr. Dean C. Worcester and against the defendants, jointly and severally, for the sum of P15,000, with interest at 6 per cent from the 23d of January, 1909.

With reference to the eleventh assignment of error above noted, to wit: That the court erred in imposing punitive damages upon the defendants, we are of the opinion, after a careful examination of the evidence, and in view of all of the facts and circumstances and the malice connected with the publication of said editorial and the subsequent publications with relation to said editorial, that the lower court, by virtue of the provisions of Act No. 277 of the Philippine Commission, was justified in imposing punitive damages upon the defendants. Section 11 of Act No. 277 allows the court, in an action for libel, to render a judgment for punitive damages, in an amount which the court may think will be a just punishment to the libeler and an example to others. Exemplary damages in civil actions for libel may always be recovered if the defendant or defendants are actuated by malice. In the present case there was not the slightest effort on the part of the defendants to show the existence of probable cause or foundation whatever for the facts contained in said editorial. Malice, hatred, and ill will against the plaintiff are seen throughout the record. The said editorial not only attempted to paint the plaintiff as a villain, but upon every occasion, the defendants resorted to ridicule of the severest kind. Here again we find difficulty in arriving at a conclusion relating to the damages which should be imposed upon the defendants for the purpose of punishment. Upon this question the courts must be governed in each case by the evidence, the circumstances and their sound discretion. Taking into consideration the fact that some of the defendants have been prosecuted criminally and have been sentenced, and considering that fact as a part of the punitive damages, we have arrived at the conclusion that the judgment of the lower court should be modified, and that a judgment should be rendered against the defendants, jointly and severally, and in favor of the plaintiff, the Honorable Dean C. Worcester, in the sum of P10,000, as punitive damages, with interest at 6 per cent from the 23d day of January, 1909. Therefore, after a full consideration of all the facts contained in the record and the errors assigned by the appellants in this court, we are of the opinion that the judgment of the lower court should be modified and that a judgment should be rendered in favor of Dean C. Worcester and against the defendants Martin Ocampo, Teodoro M. Kalaw, Manuel Palma, Arcadio Arellano, Angel Jose, Galo Lichauco, Felipe Barretto, and Gregorio M. Cansipit, jointly and severally, for the sum of P25,000 with interest at 6 per cent from the 23d of January, 1909, with costs, and that a judgment should be entered absolving Lope K. Santos from any liability under said complaint. So ordered.