Torts

CC

Art 2176

G.R. No. L-48006

July 8, 1942

FAUSTO BARREDO, petitioner,

ALMARIO, respondents.

vs.

SEVERINO

GARCIA

and

TIMOTEA

BOCOBO, J.:
This case comes up from the Court of Appeals which held the petitioner herein,
Fausto Barredo, liable in damages for the death of Faustino Garcia caused by the
negligence of Pedro Fontanilla, a taxi driver employed by said Fausto Barredo.
At about half past one in the morning of May 3, 1936, on the road between Malabon
and Navotas, Province of Rizal, there was a head-on collision between a taxi of the
Malate Taxicab driven by Pedro Fontanilla and a carretela guided by Pedro Dimapalis.
The carretela was overturned, and one of its passengers, 16-year-old boy Faustino
Garcia, suffered injuries from which he died two days later. A criminal action was
filed against Fontanilla in the Court of First Instance of Rizal, and he was convicted
and sentenced to an indeterminate sentence of one year and one day to two years
of prision correccional. The court in the criminal case granted the petition that the
right to bring a separate civil action be reserved. The Court of Appeals affirmed the
sentence of the lower court in the criminal case. Severino Garcia and Timotea
Almario, parents of the deceased on March 7, 1939, brought an action in the Court
of First Instance of Manila against Fausto Barredo as the sole proprietor of the Malate
Taxicab and employer of Pedro Fontanilla. On July 8, 1939, the Court of First Instance
of Manila awarded damages in favor of the plaintiffs for P2,000 plus legal interest
from the date of the complaint. This decision was modified by the Court of Appeals
by reducing the damages to P1,000 with legal interest from the time the action was
instituted. It is undisputed that Fontanilla 's negligence was the cause of the mishap,
as he was driving on the wrong side of the road, and at high speed. As to Barredo's
responsibility, the Court of Appeals found:
... It is admitted that defendant is Fontanilla's employer. There is proof that
he exercised the diligence of a good father of a family to prevent damage.
(See p. 22, appellant's brief.) In fact it is shown he was careless in
employing Fontanilla who had been caught several times for violation of the
Automobile Law and speeding (Exhibit A) violation which appeared in the
records of the Bureau of Public Works available to be public and to himself.
Therefore, he must indemnify plaintiffs under the provisions of article 1903
of the Civil Code.

respondents. In other words, The Court of Appeals insists on applying in the

case article 1903 of the Civil Code. Article 1903 of the Civil Code is found in
Chapter II, Title 16, Book IV of the Civil Code. This fact makes said article to
a civil liability arising from a crime as in the case at bar simply because
Chapter II of Title 16 of Book IV of the Civil Code, in the precise words of
article 1903 of the Civil Code itself, is applicable only to "those (obligations)
arising from wrongful or negligent acts or commission not punishable by
law.
The gist of the decision of the Court of Appeals is expressed thus:
... We cannot agree to the defendant's contention. The liability sought to be
imposed upon him in this action is not a civil obligation arising from a
felony or a misdemeanor (the crime of Pedro Fontanilla,), but an obligation
imposed in article 1903 of the Civil Code by reason of his negligence in the
selection or supervision of his servant or employee.
The pivotal question in this case is whether the plaintiffs may bring this separate
civil action against Fausto Barredo, thus making him primarily and directly,
responsible under article 1903 of the Civil Code as an employer of Pedro Fontanilla.
The defendant maintains that Fontanilla's negligence being punishable by the Penal
Code, his (defendant's) liability as an employer is only subsidiary, according to said
Penal code, but Fontanilla has not been sued in a civil action and his property has
not been exhausted. To decide the main issue, we must cut through the tangle that
has, in the minds of many confused and jumbled together delitos and cuasi delitos,
or crimes under the Penal Code and fault or negligence under articles 1902-1910 of
the Civil Code. This should be done, because justice may be lost in a labyrinth,
unless principles and remedies are distinctly envisaged. Fortunately, we are aided in
our inquiry by the luminous presentation of the perplexing subject by renown jurists
and we are likewise guided by the decisions of this Court in previous cases as well as
by the solemn clarity of the consideration in several sentences of the Supreme
Tribunal of Spain.
Authorities support the proposition that a quasi-delict or "culpa aquiliana " is a
separate legal institution under the Civil Code with a substantivity all its own, and
individuality that is entirely apart and independent from delict or crime. Upon this
principle and on the wording and spirit article 1903 of the Civil Code, the primary
and direct responsibility of employers may be safely anchored.
The pertinent provisions of the Civil Code and Revised Penal Code are as follows:

The main theory of the defense is that the liability of Fausto Barredo is governed by
the Revised Penal Code; hence, his liability is only subsidiary, and as there has been
no civil action against Pedro Fontanilla, the person criminally liable, Barredo cannot
be held responsible in the case. The petitioner's brief states on page 10:
... The Court of Appeals holds that the petitioner is being sued for his failure
to exercise all the diligence of a good father of a family in the selection and
supervision of Pedro Fontanilla to prevent damages suffered by the

CIVIL CODE
ART. 1089 Obligations arise from law, from contracts and quasi-contracts,
and from acts and omissions which are unlawful or in which any kind of
fault or negligence intervenes.

Torts
CC

Art 2176
xxx

xxx

xxx

ART. 1092. Civil obligations arising from felonies or misdemeanors shall be

governed by the provisions of the Penal Code.
ART. 1093. Those which are derived from acts or omissions in which fault or
negligence, not punishable by law, intervenes shall be subject to the
provisions of Chapter II, Title XVI of this book.
xxx

xxx

xxx

ART 1902. Any person who by an act or omission causes damage to

another by his fault or negligence shall be liable for the damage so done.
ART. 1903. The obligation imposed by the next preceding article is
enforcible, not only for personal acts and omissions, but also for those of
persons for whom another is responsible.
The father and in, case of his death or incapacity, the mother, are liable for
any damages caused by the minor children who live with them.
Guardians are liable for damages done by minors or incapacitated persons
subject to their authority and living with them.
Owners or directors of an establishment or business are equally liable for
any damages caused by their employees while engaged in the branch of
the service in which employed, or on occasion of the performance of their
duties.
The State is subject to the same liability when it acts through a special
agent, but not if the damage shall have been caused by the official upon
whom properly devolved the duty of doing the act performed, in which case
the provisions of the next preceding article shall be applicable.
Finally, teachers or directors of arts trades are liable for any damages
caused by their pupils or apprentices while they are under their custody.
The liability imposed by this article shall cease in case the persons
mentioned therein prove that they are exercised all the diligence of a good
father of a family to prevent the damage.
ART. 1904. Any person who pays for damage caused by his employees may
recover from the latter what he may have paid.
REVISED PENAL CODE

ART. 100. Civil liability of a person guilty of felony. Every person

criminally liable for a felony is also civilly liable.
ART. 101. Rules regarding civil liability in certain cases. The exemption
from criminal liability established in subdivisions 1, 2, 3, 5, and 6 of article
12 and in subdivision 4 of article 11 of this Code does not include
exemption from civil liability, which shall be enforced to the following rules:
First. In cases of subdivision, 1, 2 and 3 of article 12 the civil liability for
acts committed by any imbecile or insane person, and by a person under
nine years of age, or by one over nine but under fifteen years of age, who
has acted without discernment shall devolve upon those having such
person under their legal authority or control, unless it appears that there
was no fault or negligence on their part.
Should there be no person having such insane, imbecile or minor under his
authority, legal guardianship, or control, or if such person be insolvent, said
insane, imbecile, or minor shall respond with their own property, excepting
property exempt from execution, in accordance with the civil law.
Second. In cases falling within subdivision 4 of article 11, the person for
whose benefit the harm has been prevented shall be civilly liable in
proportion to the benefit which they may have received.
The courts shall determine, in their sound discretion, the proportionate amount for
which each one shall be liable.
When the respective shares can not be equitably determined, even approximately,
or when the liability also attaches to the Government, or to the majority of the
inhabitants of the town, and, in all events, whenever the damage has been caused
with the consent of the authorities or their agents, indemnification shall be made in
the manner prescribed by special laws or regulations.
Third. In cases falling within subdivisions 5 and 6 of article 12, the persons using
violence or causing the fear shall be primarily liable and secondarily, or, if there be
no such persons, those doing the act shall be liable, saving always to the latter that
part of their property exempt from execution.
ART. 102. Subsidiary civil liability of innkeepers, tavern keepers and
proprietors of establishment. In default of persons criminally liable,
innkeepers, tavern keepers, and any other persons or corporation shall be
civilly liable for crimes committed in their establishments, in all cases
where a violation of municipal ordinances or some general or special police
regulation shall have been committed by them or their employees.
Innkeepers are also subsidiarily liable for the restitution of goods taken by
robbery or theft within their houses lodging therein, or the person, or for

Torts
CC

Art 2176
the payment of the value thereof, provided that such guests shall have
notified in advance the innkeeper himself, or the person representing him,
of the deposit of such goods within the inn; and shall furthermore have
followed the directions which such innkeeper or his representative may
have given them with respect to the care of and vigilance over such goods.
No liability shall attach in case of robbery with violence against or
intimidation against or intimidation of persons unless committed by the
innkeeper's employees.
ART. 103. Subsidiary civil liability of other persons. The subsidiary liability
established in the next preceding article shall also apply to employers,
teachers, persons, and corporations engaged in any kind of industry for
felonies committed by their servants, pupils, workmen, apprentices, or
employees in the discharge of their duties.
xxx

xxx

xxx

ART. 365. Imprudence and negligence. Any person who, by reckless

imprudence, shall commit any act which, had it been intentional, would
constitute a grave felony, shall suffer the penalty of arresto mayor in its
maximum period to prision correccional in its minimum period; if it would
have constituted a less grave felony, the penalty of arresto mayor in its
minimum and medium periods shall be imposed.
Any person who, by simple imprudence or negligence, shall commit an act
which would otherwise constitute a grave felony, shall suffer the penalty
of arresto mayor in its medium and maximum periods; if it would have
constituted a less serious felony, the penalty of arresto mayor in its
minimum period shall be imposed."
It will thus be seen that while the terms of articles 1902 of the Civil Code seem to be
broad enough to cover the driver's negligence in the instant case, nevertheless
article 1093 limits cuasi-delitos to acts or omissions "not punishable by law." But
inasmuch as article 365 of the Revised Penal Code punishes not only reckless but
even simple imprudence or negligence, the fault or negligence under article 1902 of
the Civil Code has apparently been crowded out. It is this overlapping that makes
the "confusion worse confounded." However, a closer study shows that such a
concurrence of scope in regard to negligent acts does not destroy the distinction
between the civil liability arising from a crime and the responsibility for cuasi-delitos
or culpa extra-contractual. The same negligent act causing damages may produce
civil liability arising from a crime under article 100 of the Revised Penal Code, or
create an action for cuasi-delito or culpa extra-contractual under articles 1902-1910
of the Civil Code.
The individuality of cuasi-delito or culpa extra-contractual looms clear and
unmistakable. This legal institution is of ancient lineage, one of its early ancestors
being the Lex Aquilia in the Roman Law. In fact, in Spanish legal terminology, this
responsibility is often referred to as culpa aquiliana. The Partidas also contributed to

the genealogy of the present fault or negligence under the Civil Code; for instance,
Law 6, Title 15, of Partida 7, says: "Tenudo es de fazer emienda, porque, como quier
que el non fizo a sabiendas en dao al otro, pero acaescio por su culpa."
The distinctive nature of cuasi-delitos survives in the Civil Code. According to article
1089, one of the five sources of obligations is this legal institution of cuasidelito or culpa extra-contractual: "los actos . . . en que intervenga cualquier genero
de culpa o negligencia." Then article 1093 provides that this kind of obligation shall
be governed by Chapter II of Title XVI of Book IV, meaning articles 1902-0910. This
portion of the Civil Code is exclusively devoted to the legal institution of culpa
aquiliana.
Some of the differences between crimes under the Penal Code and the culpa
aquiliana or cuasi-delito under the Civil Code are:
1.

That crimes affect the public interest, while cuasi-delitos are only of private
concern.

2.

That, consequently, the Penal Code punishes or corrects the criminal act,
while the Civil Code, by means of indemnification, merely repairs the
damage.

3.

That delicts are not as broad as quasi-delicts, because the former are
punished only if there is a penal law clearly covering them, while the
latter, cuasi-delitos, include all acts in which "any king of fault or
negligence intervenes." However, it should be noted that not all violations
of the penal law produce civil responsibility, such as begging in
contravention of ordinances, violation of the game laws, infraction of the
rules of traffic when nobody is hurt. (See Colin and Capitant, "Curso
Elemental de Derecho Civil," Vol. 3, p. 728.)

Let us now ascertain what some jurists say on the separate existence of quasidelicts and the employer's primary and direct liability under article 1903 of the Civil
Code.
Dorado Montero in his essay on "Responsibilidad" in the "Enciclopedia Juridica
Espaola" (Vol. XXVII, p. 414) says:
El concepto juridico de la responsabilidad civil abarca diversos aspectos y
comprende a diferentes personas. Asi, existe una responsabilidad civil
propiamente dicha, que en ningun casl lleva aparejada responsabilidad
criminal alguna, y otra que es consecuencia indeclinable de la penal que
nace de todo delito o falta."
The juridical concept of civil responsibility has various aspects and
comprises different persons. Thus, there is a civil responsibility, properly
speaking, which in no case carries with it any criminal responsibility, and

Torts
CC

Art 2176
another which is a necessary consequence of the penal liability as a result
of every felony or misdemeanor."

Maura, an outstanding authority, was consulted on the following case: There had
been a collision between two trains belonging respectively to the Ferrocarril
Cantabrico and the Ferrocarril del Norte. An employee of the latter had been
prosecuted in a criminal case, in which the company had been made a party as
subsidiarily responsible in civil damages. The employee had been acquitted in the
criminal case, and the employer, the Ferrocarril del Norte, had also been
exonerated. The question asked was whether the Ferrocarril Cantabrico could still
bring a civil action for damages against the Ferrocarril del Norte. Maura's opinion
was in the affirmative, stating in part (Maura, Dictamenes, Vol. 6, pp. 511-513):
As things are, apropos of the reality pure and simple of the facts, it seems
less tenable that there should beres judicata with regard to the civil
obligation for damages on account of the losses caused by the collision of
the trains. The title upon which the action for reparation is based cannot be
confused with the civil responsibilities born of a crime, because there exists
in the latter, whatever each nature, a culpasurrounded with aggravating
aspects which give rise to penal measures that are more or less severe. The
injury caused by a felony or misdemeanor upon civil rights requires
restitutions, reparations, or indemnifications which, like the penalty itself,
affect public order; for this reason, they are ordinarily entrusted to the
office of the prosecuting attorney; and it is clear that if by this means the
losses and damages are repaired, the injured party no longer desires to
seek another relief; but this coincidence of effects does not eliminate the
peculiar nature of civil actions to ask for indemnity.
Such civil actions in the present case (without referring to contractual faults
which are not pertinent and belong to another scope) are derived,
according to article 1902 of the Civil Code, from every act or omission
causing losses and damages in which culpa or negligence intervenes. It is
unimportant that such actions are every day filed before the civil courts
without the criminal courts interfering therewith. Articles 18 to 21 and 121
to 128 of the Penal Code, bearing in mind the spirit and the social and
political purposes of that Code, develop and regulate the matter of civil
responsibilities arising from a crime, separately from the regime under
common law, of culpa which is known as aquiliana, in accordance with
legislative precedent of the Corpus Juris. It would be unwarranted to make a
detailed comparison between the former provisions and that regarding the
obligation to indemnify on account of civil culpa; but it is pertinent and
necessary to point out to one of such differences.
Articles 20 and 21 of the Penal Code, after distriburing in their own way the
civil responsibilities among those who, for different reasons, are guilty of
felony or misdemeanor, make such civil responsibilities applicable to
enterprises and establishments for which the guilty parties render service,
but with subsidiary character, that is to say, according to the wording of the
Penal Code, in default of those who are criminally responsible. In this

regard, the Civil Code does not coincide because article 1903 says: "The
obligation imposed by the next preceding article is demandable, not only
for personal acts and omissions, but also for those of persons for whom
another is responsible." Among the persons enumerated are the
subordinates and employees of establishments or enterprises, either for
acts during their service or on the occasion of their functions. It is for this
reason that it happens, and it is so observed in judicial decisions, that the
companies or enterprises, after taking part in the criminal cases because of
their subsidiary civil responsibility by reason of the crime, are sued and
sentenced directly and separately with regard to theobligation, before the
civil courts.
Seeing that the title of this obligation is different, and the separation
between punitive justice and the civil courts being a true postulate of our
judicial system, so that they have different fundamental norms in different
codes, as well as different modes of procedure, and inasmuch as the
Compaa del Ferrocarril Cantabrico has abstained from taking part in the
criminal case and has reserved the right to exercise its actions, it seems
undeniable that the action for indemnification for the losses and damages
caused to it by the collision was not sub judice before the Tribunal del
Jurado, nor was it the subject of a sentence, but it remained intact when
the decision of March 21 was rendered. Even if the verdict had not been
that of acquittal, it has already been shown that such action had been
legitimately reserved till after the criminal prosecution; but because of the
declaration of the non-existence of the felony and the non-existence of the
responsibility arising from the crime, which was the sole subject matter
upon which the Tribunal del Juradohad jurisdiction, there is greater reason
for the civil obligation ex lege, and it becomes clearer that the action for its
enforcement remain intact and is not res judicata.
Laurent, a jurist who has written a monumental work on the French Civil Code, on
which the Spanish Civil Code is largely based and whose provisions on cuasidelito or culpa extra-contractual are similar to those of the Spanish Civil Code, says,
referring to article 1384 of the French Civil Code which corresponds to article 1903,
Spanish Civil Code:
The action can be brought directly against the person responsible (for
another), without including the author of the act. The action against the
principal is accessory in the sense that it implies the existence of a
prejudicial act committed by the employee, but it is not subsidiary in the
sense that it can not be instituted till after the judgment against the author
of the act or at least, that it is subsidiary to the principal action; the action
for responsibility (of the employer) is in itself a principal action. (Laurent,
Principles of French Civil Law, Spanish translation, Vol. 20, pp. 734-735.)
Amandi, in his "Cuestionario del Codigo Civil Reformado" (Vol. 4, pp. 429, 430),
declares that the responsibility of the employer is principal and not subsidiary. He
writes:

Torts
CC

Art 2176
Question No. 1. Is the responsibility declared in article 1903 for the acts or
omissions of those persons for who one is responsible, subsidiary or
principal? In order to answer this question it is necessary to know, in the
first place, on what the legal provision is based. Is it true that there is a
responsibility for the fault of another person? It seems so at first sight; but
such assertion would be contrary to justice and to the universal maxim that
all faults are personal, and that everyone is liable for those faults that can
be imputed to him. The responsibility in question is imposed on the
occasion of a crime or fault, but not because of the same, but because of
the cuasi-delito, that is to say, the imprudence or negligence of the father,
guardian, proprietor or manager of the establishment, of the teacher, etc.
Whenever anyone of the persons enumerated in the article referred to
(minors, incapacitated persons, employees, apprentices) causes any
damage, the law presumes that the father, guardian, teacher, etc. have
committed an act of negligence in not preventing or avoiding the damage.
It is this fault that is condemned by the law. It is, therefore, only apparent
that there is a responsibility for the act of another; in reality the
responsibility exacted is for one's own act. The idea that such responsibility
is subsidiary is, therefore, completely inadmissible.

Oyuelos, in his "Digesto: Principios, Doctrina y Jurisprudencia, Referentes al Codigo

Civil Espaol," says in Vol. VII, p. 743:
That is to say, one is not responsible for the acts of others, because one is
liable only for his own faults, this being the doctrine of article 1902; but, by
exception, one is liable for the acts of those persons with whom there is a
bond or tie which gives rise to the responsibility. Is this responsibility direct
or subsidiary? In the order of the penal law, the Penal Code distinguishes
between minors and incapacitated persons on the one hand, and other
persons on the other, declaring that the responsibility for the former is
direct (article 19), and for the latter, subsidiary (articles 20 and 21); but in
the scheme of the civil law, in the case of article 1903, the responsibility
should be understood as direct, according to the tenor of that articles, for
precisely it imposes responsibility "for the acts of those persons for whom
one should be responsible."
Coming now to the sentences of the Supreme Tribunal of Spain, that court has
upheld the principles above set forth: that a quasi-delict or culpa extra-contractual is
a separate and distinct legal institution, independent from the civil responsibility
arising from criminal liability, and that an employer is, under article 1903 of the Civil
Code, primarily and directly responsible for the negligent acts of his employee.
One of the most important of those Spanish decisions is that of October 21, 1910. In
that case, Ramon Lafuente died as the result of having been run over by a street car
owned by the "compaia Electric Madrilea de Traccion." The conductor was
prosecuted in a criminal case but he was acquitted. Thereupon, the widow filed a
civil action against the street car company, paying for damages in the amount of
15,000 pesetas. The lower court awarded damages; so the company appealed to the
Supreme Tribunal, alleging violation of articles 1902 and 1903 of the Civil Code

because by final judgment the non-existence of fault or negligence had been

declared. The Supreme Court of Spain dismissed the appeal, saying:
Considering that the first ground of the appeal is based on the mistaken
supposition that the trial court, in sentencing the Compaia Madrilea to
the payment of the damage caused by the death of Ramon Lafuente
Izquierdo, disregards the value and juridical effects of the sentence of
acquittal rendered in the criminal case instituted on account of the same
act, when it is a fact that the two jurisdictions had taken cognizance of the
same act in its different aspects, and as the criminal jurisdiction declared
within the limits of its authority that the act in question did not constitute a
felony because there was no grave carelessness or negligence, and this
being the only basis of acquittal, it does no exclude the co-existence of
fault or negligence which is not qualified, and is a source of civil obligations
according to article 1902 of the Civil Code, affecting, in accordance with
article 1903, among other persons, the managers of establishments or
enterprises by reason of the damages caused by employees under certain
conditions, it is manifest that the civil jurisdiccion in taking cognizance of
the same act in this latter aspect and in ordering the company, appellant
herein, to pay an indemnity for the damage caused by one of its
employees, far from violating said legal provisions, in relation with article
116 of the Law of Criminal Procedure, strictly followed the same, without
invading attributes which are beyond its own jurisdiction, and without in
any way contradicting the decision in that cause. (Emphasis supplied.)
It will be noted, as to the case just cited:
First. That the conductor was not sued in a civil case, either separately or with the
street car company. This is precisely what happens in the present case: the driver,
Fontanilla, has not been sued in a civil action, either alone or with his employer.
Second. That the conductor had been acquitted of grave criminal negligence, but
the Supreme Tribunal of Spain said that this did not exclude the co-existence of fault
or negligence, which is not qualified, on the part of the conductor, under article
1902 of the Civil Code. In the present case, the taxi driver was found guilty of
criminal negligence, so that if he had even sued for his civil responsibility arising
from the crime, he would have been held primarily liable for civil damages, and
Barredo would have been held subsidiarily liable for the same. But the plaintiffs are
directly suing Barredo, on his primary responsibility because of his own presumed
negligence which he did not overcome under article 1903. Thus, there were
two liabilities of Barredo: first, the subsidiary one because of the civil liability of the
taxi driver arising from the latter's criminal negligence; and, second, Barredo's
primary liability as an employer under article 1903. The plaintiffs were free to
choose which course to take, and they preferred the second remedy. In so doing,
they were acting within their rights. It might be observed in passing, that the
plaintiff choose the more expeditious and effective method of relief, because
Fontanilla was either in prison, or had just been released, and besides, he was
probably without property which might be seized in enforcing any judgment against
him for damages.

Torts
CC

Art 2176

Third. That inasmuch as in the above sentence of October 21, 1910, the employer
was held liable civilly, notwithstanding the acquittal of the employee (the conductor)
in a previous criminal case, with greater reason should Barredo, the employer in the
case at bar, be held liable for damages in a civil suit filed against him because his
taxi driver had been convicted. The degree of negligence of the conductor in the
Spanish case cited was less than that of the taxi driver, Fontanilla, because the
former was acquitted in the previous criminal case while the latter was found guilty
of criminal negligence and was sentenced to an indeterminate sentence of one year
and one day to two years of prision correccional.
(See also Sentence of February 19, 1902, which is similar to the one above quoted.)
In the Sentence of the Supreme Court of Spain, dated February 14, 1919, an action
was brought against a railroad company for damages because the station agent,
employed by the company, had unjustly and fraudulently, refused to deliver certain
articles consigned to the plaintiff. The Supreme Court of Spain held that this action
was properly under article 1902 of the Civil Code, the court saying:
Considering that the sentence, in question recognizes, in virtue of the facts
which it declares, in relation to the evidence in the case: (1) that the
invoice issued by the railroad company in favor of the plaintiff
contemplated that the empty receptacles referred to in the complaint
should be returned to the consignors with wines and liquors; (2) that when
the said merchandise reached their destination, their delivery to the
consignee was refused by the station agent without justification and
with fraudulent intent, and (3) that the lack of delivery of these goods when
they were demanded by the plaintiff caused him losses and damages of
considerable importance, as he was a wholesale vendor of wines and
liquors and he failed to realize the profits when he was unable to fill the
orders sent to him by the consignors of the receptacles:
Considering that upon this basis there is need of upholding the four
assignments of error, as the original complaint did not contain any cause of
action arising from non-fulfillment of a contract of transportation, because
the action was not based on the delay of the goods nor on any contractual
relation between the parties litigant and, therefore, article 371 of the Code
of Commerce, on which the decision appealed from is based, is not
applicable; but it limits to asking for reparation for losses and damages
produced on the patrimony of the plaintiff on account of the unjustified
and fraudulent refusal of the carrier to deliver the goods consigned to the
plaintiff as stated by the sentence, and the carrier's responsibility is clearly
laid down in article 1902 of the Civil Code which binds, in virtue of the next
article, the defendant company, because the latter is connected with the
person who caused the damage by relations of economic character and by
administrative hierarchy. (Emphasis supplied.)
The above case is pertinent because it shows that the same act may come under
both the Penal Code and the Civil Code. In that case, the action of the agent was
unjustified and fraudulent and therefore could have been the subject of a criminal

action. And yet, it was held to be also a proper subject of a civil action under article
1902 of the Civil Code. It is also to be noted that it was the employer and not the
employee who was being sued.
Let us now examine the cases previously decided by this Court.
In the leading case of Rakes vs. Atlantic Gulf and Pacific Co. (7 Phil., 359, 362-365
[year 1907]), the trial court awarded damages to the plaintiff, a laborer of the
defendant, because the latter had negligently failed to repair a tramway in
consequence of which the rails slid off while iron was being transported, and caught
the plaintiff whose leg was broken. This Court held:
It is contended by the defendant, as its first defense to the action that the
necessary conclusion from these collated laws is that the remedy for
injuries through negligence lies only in a criminal action in which the official
criminally responsible must be made primarily liable and his employer held
only subsidiarily to him. According to this theory the plaintiff should have
procured the arrest of the representative of the company accountable for
not repairing the track, and on his prosecution a suitable fine should have
been imposed, payable primarily by him and secondarily by his employer.
This reasoning misconceived the plan of the Spanish codes upon this
subject. Article 1093 of the Civil Code makes obligations arising from faults
or negligence not punished by the law, subject to the provisions of Chapter
II of Title XVI. Section 1902 of that chapter reads:
"A person who by an act or omission causes damage to another
when there is fault or negligence shall be obliged to repair the
damage so done.
"SEC. 1903. The obligation imposed by the preceeding article is
demandable, not only for personal acts and omissions, but also for
those of the persons for whom they should be responsible.
"The father, and on his death or incapacity, the mother, is liable
for the damages caused by the minors who live with them.
xxx

xxx

xxx

"Owners or directors of an establishment or enterprise are equally

liable for the damages caused by their employees in the service of
the branches in which the latter may be employed or in the
performance of their duties.
xxx

xxx

xxx

Torts
CC

Art 2176
"The liability referred to in this article shall cease when the
persons mentioned therein prove that they employed all the
diligence of a good father of a family to avoid the damage."
As an answer to the argument urged in this particular action it may be
sufficient to point out that nowhere in our general statutes is the employer
penalized for failure to provide or maintain safe appliances for his
workmen. His obligation therefore is one 'not punished by the laws' and
falls under civil rather than criminal jurisprudence. But the answer may be
a broader one. We should be reluctant, under any conditions, to adopt a
forced construction of these scientific codes, such as is proposed by the
defendant, that would rob some of these articles of effect, would shut out
litigants against their will from the civil courts, would make the assertion of
their rights dependent upon the selection for prosecution of the proper
criminal offender, and render recovery doubtful by reason of the strict rules
of proof prevailing in criminal actions. Even if these articles had always
stood alone, such a construction would be unnecessary, but clear light is
thrown upon their meaning by the provisions of the Law of Criminal
Procedure of Spain (Ley de Enjuiciamiento Criminal), which, though never in
actual force in these Islands, was formerly given a suppletory or
explanatory effect. Under article 111 of this law, both classes of action, civil
and criminal, might be prosecuted jointly or separately, but while the penal
action was pending the civil was suspended. According to article 112, the
penal action once started, the civil remedy should be sought therewith,
unless it had been waived by the party injured or been expressly reserved
by him for civil proceedings for the future. If the civil action alone was
prosecuted, arising out of a crime that could be enforced only on private
complaint, the penal action thereunder should be extinguished. These
provisions are in harmony with those of articles 23 and 133 of our Penal
Code on the same subject.
An examination of this topic might be carried much further, but the citation
of these articles suffices to show that the civil liability was not intended to
be merged in the criminal nor even to be suspended thereby, except as
expressly provided in the law. Where an individual is civilly liable for a
negligent act or omission, it is not required that the injured party should
seek out a third person criminally liable whose prosecution must be a
condition precedent to the enforcement of the civil right.
Under article 20 of the Penal Code the responsibility of an employer may be
regarded as subsidiary in respect of criminal actions against his employees
only while they are in process of prosecution, or in so far as they determine
the existence of the criminal act from which liability arises, and his
obligation under the civil law and its enforcement in the civil courts is not
barred thereby unless by the election of the injured person. Inasmuch as no
criminal proceeding had been instituted, growing our of the accident in
question, the provisions of the Penal Code can not affect this action. This
construction renders it unnecessary to finally determine here whether this
subsidiary civil liability in penal actions has survived the laws that fully

regulated it or has been abrogated by the American civil and criminal

procedure now in force in the Philippines.
The difficulty in construing the articles of the code above cited in this case
appears from the briefs before us to have arisen from the interpretation of
the words of article 1093, "fault or negligence not punished by law," as
applied to the comprehensive definition of offenses in articles 568 and 590
of the Penal Code. It has been shown that the liability of an employer
arising out of his relation to his employee who is the offender is not to be
regarded as derived from negligence punished by the law, within the
meaning of articles 1902 and 1093. More than this, however, it cannot be
said to fall within the class of acts unpunished by the law, the consequence
of which are regulated by articles 1902 and 1903 of the Civil Code. The acts
to which these articles are applicable are understood to be those not
growing out of pre-existing duties of the parties to one another. But where
relations already formed give rise to duties, whether springing from
contract or quasi contract, then breaches of those duties are subject to
articles 1101, 1103, and 1104 of the same code. A typical application of
this distinction may be found in the consequences of a railway accident due
to defective machinery supplied by the employer. His liability to his
employee would arise out of the contract of employment, that to the
passengers out of the contract for passage, while that to the injured
bystander would originate in the negligent act itself.
In Manzanares vs. Moreta, 38 Phil., 821 (year 1918), the mother of the 8 of 9-yearold child Salvador Bona brought a civil action against Moreta to recover damages
resulting from the death of the child, who had been run over by an automobile
driven and managed by the defendant. The trial court rendered judgment requiring
the defendant to pay the plaintiff the sum of P1,000 as indemnity: This Court in
affirming the judgment, said in part:
If it were true that the defendant, in coming from the southern part of
Solana Street, had to stop his auto before crossing Real Street, because he
had met vehicles which were going along the latter street or were coming
from the opposite direction along Solana Street, it is to be believed that,
when he again started to run his auto across said Real Street and to
continue its way along Solana Street northward, he should have adjusted
the speed of the auto which he was operating until he had fully crossed
Real Street and had completely reached a clear way on Solana Street. But,
as the child was run over by the auto precisely at the entrance of Solana
Street, this accident could not have occurred if the auto had been running
at a slow speed, aside from the fact that the defendant, at the moment of
crossing Real Street and entering Solana Street, in a northward direction,
could have seen the child in the act of crossing the latter street from the
sidewalk on the right to that on the left, and if the accident had occurred in
such a way that after the automobile had run over the body of the child,
and the child's body had already been stretched out on the ground, the
automobile still moved along a distance of about 2 meters, this
circumstance shows the fact that the automobile entered Solana Street
from Real Street, at a high speed without the defendant having blown the

Torts
CC

Art 2176
horn. If these precautions had been taken by the defendant, the deplorable
accident which caused the death of the child would not have occurred.

It will be noticed that the defendant in the above case could have been prosecuted
in a criminal case because his negligence causing the death of the child was
punishable by the Penal Code. Here is therefore a clear instance of the same act of
negligence being a proper subject-matter either of a criminal action with its
consequent civil liability arising from a crime or of an entirely separate and
independent civil action for fault or negligence under article 1902 of the Civil Code.
Thus, in this jurisdiction, the separate individually of a cuasi-delito or culpa
aquilianaunder the Civil Code has been fully and clearly recognized, even with
regard to a negligent act for which the wrongdoer could have been prosecuted and
convicted in a criminal case and for which, after such a conviction, he could have
been sued for this civil liability arising from his crime.
Years later (in 1930) this Court had another occasion to apply the same doctrine.
In Bernal and Enverso vs. House and Tacloban Electric & Ice Plant, Ltd., 54 Phil., 327,
the parents of the five-year-old child, Purificacion Bernal, brought a civil action to
recover damages for the child's death as a result of burns caused by the fault and
negligence of the defendants. On the evening of April 10, 1925, the Good Friday
procession was held in Tacloban, Leyte. Fortunata Enverso with her daughter
Purificacion Bernal had come from another municipality to attend the same. After
the procession the mother and the daughter with two others were passing along
Gran Capitan Street in front of the offices of the Tacloban Electric & Ice Plant, Ltd.,
owned by defendants J. V. House, when an automobile appeared from the opposite
direction. The little girl, who was slightly ahead of the rest, was so frightened by the
automobile that she turned to run, but unfortunately she fell into the street gutter
where hot water from the electric plant was flowing. The child died that same night
from the burns. The trial courts dismissed the action because of the contributory
negligence of the plaintiffs. But this Court held, on appeal, that there was no
contributory negligence, and allowed the parents P1,000 in damages from J. V.
House who at the time of the tragic occurrence was the holder of the franchise for
the electric plant. This Court said in part:
Although the trial judge made the findings of fact hereinbefore outlined, he
nevertheless was led to order the dismissal of the action because of the
contributory negligence of the plaintiffs. It is from this point that a majority
of the court depart from the stand taken by the trial judge. The mother and
her child had a perfect right to be on the principal street of Tacloban, Leyte,
on the evening when the religious procession was held. There was nothing
abnormal in allowing the child to run along a few paces in advance of the
mother. No one could foresee the coincidence of an automobile appearing
and of a frightened child running and falling into a ditch filled with hot
water. The doctrine announced in the much debated case of Rakes vs.
Atlantic Gulf and Pacific Co. ([1907]), 7 Phil., 359), still rule. Article 1902 of
the Civil Code must again be enforced. The contributory negligence of the
child and her mother, if any, does not operate as a bar to recovery, but in
its strictest sense could only result in reduction of the damages.

It is most significant that in the case just cited, this Court specifically applied article
1902 of the Civil Code. It is thus that although J. V. House could have been criminally
prosecuted for reckless or simple negligence and not only punished but also made
civilly liable because of his criminal negligence, nevertheless this Court awarded
damages in an independent civil action for fault or negligence under article 1902 of
the Civil Code.
In Bahia vs. Litonjua and Leynes (30 Phil., 624 [year 1915), the action was for
damages for the death of the plaintiff's daughter alleged to have been caused by
the negligence of the servant in driving an automobile over the child. It appeared
that the cause of the mishap was a defect in the steering gear. The defendant
Leynes had rented the automobile from the International Garage of Manila, to be
used by him in carrying passengers during the fiesta of Tuy, Batangas. Leynes was
ordered by the lower court to pay P1,000 as damages to the plaintiff. On appeal this
Court reversed the judgment as to Leynes on the ground that he had shown that the
exercised the care of a good father of a family, thus overcoming the presumption of
negligence under article 1903. This Court said:
As to selection, the defendant has clearly shown that he exercised the care
and diligence of a good father of a family. He obtained the machine from a
reputable garage and it was, so far as appeared, in good condition. The
workmen were likewise selected from a standard garage, were duly
licensed by the Government in their particular calling, and apparently
thoroughly competent. The machine had been used but a few hours when
the accident occurred and it is clear from the evidence that the defendant
had no notice, either actual or constructive, of the defective condition of
the steering gear.
The legal aspect of the case was discussed by this Court thus:
Article 1903 of the Civil Code not only establishes liability in cases of
negligence, but also provides when the liability shall cease. It says:
"The liability referred to in this article shall cease when the
persons mentioned therein prove that they employed all the
diligence of a good father of a family to avoid the damage."
From this article two things are apparent: (1) That when an injury is caused
by the negligence of a servant or employee there instantly arises a
presumption of law that there was negligence on the part of the matter or
employer either in the selection of the servant or employee, or in
supervision over him after the selection, or both; and (2) that presumption
is juris tantum and not juris et de jure, and consequently, may be rebutted.
It follows necessarily that if the employer shows to the satisfaction of the
court that in selection and supervision he has exercised the care and
diligence of a good father of a family, the presumption is overcome and he
is relieve from liability.

Torts
CC

Art 2176
This theory bases the responsibility of the master ultimately on his own
negligence and not on that of his servant.

primarily and directly responsible in damages under article 1903, in relation to

article 1902, of the Civil Code.

The doctrine of the case just cited was followed by this Court in Cerf vs. Medel (33
Phil., 37 [year 1915]). In the latter case, the complaint alleged that the defendant's
servant had so negligently driven an automobile, which was operated by defendant
as a public vehicle, that said automobile struck and damaged the plaintiff's
motorcycle. This Court, applying article 1903 and following the rule in Bahia vs.
Litonjua and Leynes, said in part (p. 41) that:

Let us now take up the Philippine decisions relied upon by the defendant. We study
first, City of Manila vs. Manila Electric Co., 52 Phil., 586 (year 1928). A collision
between a truck of the City of Manila and a street car of the Manila Electric Co. took
place on June 8, 1925. The truck was damaged in the amount of P1,788.27. Sixto
Eustaquio, the motorman, was prosecuted for the crime of damage to property and
slight injuries through reckless imprudence. He was found guilty and sentenced to
pay a fine of P900, to indemnify the City of Manila for P1,788.27, with subsidiary
imprisonment in case of insolvency. Unable to collect the indemnity from Eustaquio,
the City of Manila filed an action against the Manila Electric Company to obtain
payment, claiming that the defendant was subsidiarily liable. The main defense was
that the defendant had exercised the diligence of a good father of a family to
prevent the damage. The lower court rendered judgment in favor of the plaintiff.
This Court held, in part, that this case was governed by the Penal Code, saying:

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

With this preliminary point out of the way, there is no escaping the
conclusion that the provisions of the Penal Code govern. The Penal Code in
easily understandable language authorizes the determination of subsidiary
liability. The Civil Code negatives its application by providing that civil
obligations arising from crimes or misdemeanors shall be governed by the
provisions of the Penal Code. The conviction of the motorman was a
misdemeanor falling under article 604 of the Penal Code. The act of the
motorman was not a wrongful or negligent act or omission not punishable
by law. Accordingly, the civil obligation connected up with the Penal Code
and not with article 1903 of the Civil Code. In other words, the Penal Code
affirms its jurisdiction while the Civil Code negatives its jurisdiction. This is
a case of criminal negligence out of which civil liability arises and not a
case of civil negligence.
xxx

xxx

xxx

Our deduction, therefore, is that the case relates to the Penal Code and not
to the Civil Code. Indeed, as pointed out by the trial judge, any different
ruling would permit the master to escape scot-free by simply alleging and
proving that the master had exercised all diligence in the selection and
training of its servants to prevent the damage. That would be a good
defense to a strictly civil action, but might or might not be to a civil action
either as a part of or predicated on conviction for a crime or misdemeanor.
(By way of parenthesis, it may be said further that the statements here
made are offered to meet the argument advanced during our deliberations
to the effect that article 0902 of the Civil Code should be disregarded and
codal articles 1093 and 1903 applied.)
It is not clear how the above case could support the defendant's proposition,
because the Court of Appeals based its decision in the present case on the
defendant's primary responsibility under article 1903 of the Civil Code and not on his
subsidiary liability arising from Fontanilla's criminal negligence. In other words, the

Torts
CC

Art 2176

case of City of Manila vs. Manila Electric Co., supra, is predicated on an entirely
different theory, which is the subsidiary liability of an employer arising from a
criminal act of his employee, whereas the foundation of the decision of the Court of
Appeals in the present case is the employer's primary liability under article 1903 of
the Civil Code. We have already seen that this is a proper and independent remedy.
Arambulo vs. Manila Electric Co. (55 Phil., 75), is another case invoked by the
defendant. A motorman in the employ of the Manila Electric Company had been
convicted o homicide by simple negligence and sentenced, among other things, to
pay the heirs of the deceased the sum of P1,000. An action was then brought to
enforce the subsidiary liability of the defendant as employer under the Penal Code.
The defendant attempted to show that it had exercised the diligence of a good
father of a family in selecting the motorman, and therefore claimed exemption from
civil liability. But this Court held:
In view of the foregoing considerations, we are of opinion and so hold, (1)
that the exemption from civil liability established in article 1903 of the Civil
Code for all who have acted with the diligence of a good father of a family,
is not applicable to the subsidiary civil liability provided in article 20 of the
Penal Code.
The above case is also extraneous to the theory of the defendant in the instant case,
because the action there had for its purpose the enforcement of the defendant's
subsidiary liability under the Penal Code, while in the case at bar, the plaintiff's
cause of action is based on the defendant's primary and direct responsibility under
article 1903 of the Civil Code. In fact, the above case destroys the defendant's
contention because that decision illustrates the principle that the employer's
primary responsibility under article 1903 of the Civil Code is different in character
from his subsidiary liability under the Penal Code.
In trying to apply the two cases just referred to, counsel for the defendant has failed
to recognize the distinction between civil liability arising from a crime, which is
governed by the Penal Code, and the responsibility for cuasi-delito or culpa
aquiliana under the Civil Code, and has likewise failed to give the importance to the
latter type of civil action.
The defendant-petitioner also cites Francisco vs. Onrubia (46 Phil., 327). That case
need not be set forth. Suffice it to say that the question involved was also civil
liability arising from a crime. Hence, it is as inapplicable as the two cases above
discussed.
The foregoing authorities clearly demonstrate the separate individuality of cuasidelitos or culpa aquiliana under the Civil Code. Specifically they show that there is a
distinction between civil liability arising from criminal negligence (governed by the
Penal Code) and responsibility for fault or negligence under articles 1902 to 1910 of
the Civil Code, and that the same negligent act may produce either a civil liability
arising from a crime under the Penal Code, or a separate responsibility for fault or
negligence under articles 1902 to 1910 of the Civil Code. Still more concretely, the

authorities above cited render it inescapable to conclude that the employer in this
case the defendant-petitioner is primarily and directly liable under article 1903 of
the Civil Code.
The legal provisions, authors, and cases already invoked should ordinarily be
sufficient to dispose of this case. But inasmuch as we are announcing doctrines that
have been little understood in the past, it might not be inappropriate to indicate
their foundations.
Firstly, the Revised Penal Code in article 365 punishes not only reckless but also
simple negligence. If we were to hold that articles 1902 to 1910 of the Civil Code
refer only to fault or negligence not punished by law, according to the literal import
of article 1093 of the Civil Code, the legal institution of culpa aquiliana would have
very little scope and application in actual life. Death or injury to persons and
damage to property through any degree of negligence even the slightest would
have to be indemnified only through the principle of civil liability arising from a
crime. In such a state of affairs, what sphere would remain for cuasi-delito or culpa
aquiliana? We are loath to impute to the lawmaker any intention to bring about a
situation so absurd and anomalous. Nor are we, in the interpretation of the laws,
disposed to uphold the letter that killeth rather than the spirit that giveth life. We
will not use the literal meaning of the law to smother and render almost lifeless a
principle of such ancient origin and such full-grown development as culpa
aquiliana or cuasi-delito, which is conserved and made enduring in articles 1902 to
1910 of the Spanish Civil Code.
Secondly, to find the accused guilty in a criminal case, proof of guilt beyond
reasonable doubt is required, while in a civil case, preponderance of evidence is
sufficient to make the defendant pay in damages. There are numerous cases of
criminal negligence which can not be shown beyond reasonable doubt, but can be
proved by a preponderance of evidence. In such cases, the defendant can and
should be made responsible in a civil action under articles 1902 to 1910 of the Civil
Code. Otherwise, there would be many instances of unvindicated civil wrongs. Ubi
jus ibi remedium.
Thirdly, to hold that there is only one way to make defendant's liability effective, and
that is, to sue the driver and exhaust his (the latter's) property first, would be
tantamount to compelling the plaintiff to follow a devious and cumbersome method
of obtaining relief. True, there is such a remedy under our laws, but there is also a
more expeditious way, which is based on the primary and direct responsibility of the
defendant under article 1903 of the Civil Code. Our view of the law is more likely to
facilitate remedy for civil wrongs, because the procedure indicated by the defendant
is wasteful and productive of delay, it being a matter of common knowledge that
professional drivers of taxis and similar public conveyance usually do not have
sufficient means with which to pay damages. Why, then, should the plaintiff be
required in all cases to go through this roundabout, unnecessary, and probably
useless procedure? In construing the laws, courts have endeavored to shorten and
facilitate the pathways of right and justice.

10

Torts
CC
At this juncture, it should be said that the primary and direct responsibility of
employers and their presumed negligence are principles calculated to protect
society. Workmen and employees should be carefully chosen and supervised in order
to avoid injury to the public. It is the masters or employers who principally reap the
profits resulting from the services of these servants and employees. It is but right
that they should guarantee the latter's careful conduct for the personnel and
patrimonial safety of others. As Theilhard has said, "they should reproach
themselves, at least, some for their weakness, others for their poor selection and all
for their negligence." And according to Manresa, "It is much more equitable and just
that such responsibility should fall upon the principal or director who could have
chosen a careful and prudent employee, and not upon the injured person who could
not exercise such selection and who used such employee because of his confidence
in the principal or director." (Vol. 12, p. 622, 2nd Ed.) Many jurists also base this
primary responsibility of the employer on the principle of representation of the
principal by the agent. Thus, Oyuelos says in the work already cited (Vol. 7, p. 747)
that before third persons the employer and employee "vienen a ser como una sola
personalidad, por refundicion de la del dependiente en la de quien le emplea y
utiliza." ("become as one personality by the merging of the person of the employee
in that of him who employs and utilizes him.") All these observations acquire a
peculiar force and significance when it comes to motor accidents, and there is need
of stressing and accentuating the responsibility of owners of motor vehicles.
Fourthly, because of the broad sweep of the provisions of both the Penal Code and
the Civil Code on this subject, which has given rise to the overlapping or
concurrence of spheres already discussed, and for lack of understanding of the
character and efficacy of the action for culpa aquiliana, there has grown up a
common practice to seek damages only by virtue of the civil responsibility arising
from a crime, forgetting that there is another remedy, which is by invoking articles
1902-1910 of the Civil Code. Although this habitual method is allowed by our laws, it
has nevertheless rendered practically useless and nugatory the more expeditious
and effective remedy based on culpa aquiliana or culpa extra-contractual. In the
present case, we are asked to help perpetuate this usual course. But we believe it is
high time we pointed out to the harm done by such practice and to restore the
principle of responsibility for fault or negligence under articles 1902 et seq. of the
Civil Code to its full rigor. It is high time we caused the stream of quasi-delict
or culpa aquiliana to flow on its own natural channel, so that its waters may no
longer be diverted into that of a crime under the Penal Code. This will, it is believed,
make for the better safeguarding of private rights because it re-establishes an
ancient and additional remedy, and for the further reason that an independent civil
action, not depending on the issues, limitations and results of a criminal prosecution,
and entirely directed by the party wronged or his counsel, is more likely to secure
adequate and efficacious redress.
In view of the foregoing, the judgment of the Court of Appeals should be and is
hereby affirmed, with costs against the defendant-petitioner.

Art 2176

G.R. No. L-24803 May 26, 1977

PEDRO ELCANO and PATRICIA ELCANO, in their capacity as Ascendants of
Agapito
Elcano,
deceased,plaintiffs-appellants,
vs.
REGINALD HILL, minor, and MARVIN HILL, as father and Natural Guardian of
said minor, defendants-appellees.
BARREDO, J.:
Appeal from the order of the Court of First Instance of Quezon City dated January 29,
1965 in Civil Case No. Q-8102, Pedro Elcano et al. vs. Reginald Hill et al. dismissing,
upon motion to dismiss of defendants, the complaint of plaintiffs for recovery of
damages from defendant Reginald Hill, a minor, married at the time of the
occurrence, and his father, the defendant Marvin Hill, with whom he was living and
getting subsistence, for the killing by Reginald of the son of the plaintiffs, named
Agapito Elcano, of which, when criminally prosecuted, the said accused was
acquitted on the ground that his act was not criminal, because of "lack of intent to
kill, coupled with mistake."
Actually, the motion to dismiss based on the following grounds:
1.

The present action is not only against but a violation of section 1, Rule
107, which is now Rule III, of the Revised Rules of Court;

2.

The action is barred by a prior judgment which is now final and or

in res-adjudicata;

3.

The complaint had no cause of action against defendant Marvin Hill,

because he was relieved as guardian of the other defendant through
emancipation by marriage.
(P. 23, Record [p. 4, Record on Appeal.])

was first denied by the trial court. It was only upon motion for reconsideration of the
defendants of such denial, reiterating the above grounds that the following order
was issued:
Considering the motion for reconsideration filed by the defendants
on January 14, 1965 and after thoroughly examining the

11

Torts
CC

Art 2176
arguments therein contained, the Court finds the same to be
meritorious and well-founded.
WHEREFORE, the Order of this Court on December 8, 1964 is
hereby reconsidered by ordering the dismissal of the above
entitled case.
SO ORDERED.
Quezon City, Philippines, January 29, 1965. (p. 40, Record [p. 21,
Record on Appeal.)

Hence, this appeal where plaintiffs-appellants, the spouses Elcano, are presenting
for Our resolution the following assignment of errors:
THE LOWER COURT ERRED IN DISMISSING
UPHOLDING THE CLAIM OF DEFENDANTS THAT -

THE

CASE

BY

I
THE PRESENT ACTION IS NOT ONLY AGAINST BUT ALSO A
VIOLATION OF SECTION 1, RULE 107, NOW RULE 111, OF THE
REVISED RULES OF COURT, AND THAT SECTION 3(c) OF RULE 111,
RULES OF COURT IS APPLICABLE;
II
THE ACTION IS BARRED BY A PRIOR JUDGMENT WHICH IS NOW
FINAL OR RES-ADJUDICTA;
III
THE PRINCIPLES OF QUASI-DELICTS, ARTICLES 2176 TO 2194 OF
THE CIVIL CODE, ARE INAPPLICABLE IN THE INSTANT CASE; and
IV
THAT THE COMPLAINT STATES NO CAUSE OF ACTION AGAINST
DEFENDANT MARVIN HILL BECAUSE HE WAS RELIEVED AS
GUARDIAN OF THE OTHER DEFENDANT THROUGH EMANCIPATION
BY MARRIAGE. (page 4, Record.)
It appears that for the killing of the son, Agapito, of plaintiffs-appellants, defendantappellee Reginald Hill was prosecuted criminally in Criminal Case No. 5102 of the

Court of First Instance of Quezon City. After due trial, he was acquitted on the ground
that his act was not criminal because of "lack of intent to kill, coupled with mistake."
Parenthetically, none of the parties has favored Us with a copy of the decision of
acquittal, presumably because appellants do not dispute that such indeed was the
basis stated in the court's decision. And so, when appellants filed their complaint
against appellees Reginald and his father, Atty. Marvin Hill, on account of the death
of their son, the appellees filed the motion to dismiss above-referred to.
As We view the foregoing background of this case, the two decisive issues presented
for Our resolution are:
1. Is the present civil action for damages barred by the acquittal of Reginald in the
criminal case wherein the action for civil liability, was not reversed?
2. May Article 2180 (2nd and last paragraphs) of the Civil Code he applied against
Atty. Hill, notwithstanding the undisputed fact that at the time of the occurrence
complained of. Reginald, though a minor, living with and getting subsistenee from
his father, was already legally married?
The first issue presents no more problem than the need for a reiteration and further
clarification of the dual character, criminal and civil, of fault or negligence as a
source of obligation which was firmly established in this jurisdiction in Barredo vs.
Garcia, 73 Phil. 607. In that case, this Court postulated, on the basis of a scholarly
dissertation by Justice Bocobo on the nature of culpa aquiliana in relation to culpa
criminal or delito and mereculpa or fault, with pertinent citation of decisions of the
Supreme Court of Spain, the works of recognized civilians, and earlier jurisprudence
of our own, that the same given act can result in civil liability not only under the
Penal Code but also under the Civil Code. Thus, the opinion holds:
The, above case is pertinent because it shows that the same act machinist.
come under both the Penal Code and the Civil Code. In that case, the action
of the agent killeth unjustified and fraudulent and therefore could have
been the subject of a criminal action. And yet, it was held to be also a
proper subject of a civil action under article 1902 of the Civil Code. It is also
to be noted that it was the employer and not the employee who was being
sued. (pp. 615-616, 73 Phil.). 1
It will be noticed that the defendant in the above case could have been
prosecuted in a criminal case because his negligence causing the death of
the child was punishable by the Penal Code. Here is therefore a clear
instance of the same act of negligence being a proper subject matter either
of a criminal action with its consequent civil liability arising from a crime or
of an entirely separate and independent civil action for fault or negligence
under article 1902 of the Civil Code. Thus, in this jurisdiction, the separate
individuality of a cuasi-delito or culpa aquiliana, under the Civil Code has
been fully and clearly recognized, even with regard to a negligent act for
which the wrongdoer could have been prosecuted and convicted in a

12

Torts
CC

Art 2176
criminal case and for which, after such a conviction, he could have been
sued for this civil liability arising from his crime. (p. 617, 73 Phil.) 2
It is most significant that in the case just cited, this Court specifically
applied article 1902 of the Civil Code. It is thus that although J. V. House
could have been criminally prosecuted for reckless or simple negligence
and not only punished but also made civilly liable because of his criminal
negligence, nevertheless this Court awarded damages in an independent
civil action for fault or negligence under article 1902 of the Civil Code. (p.
618, 73 Phil.) 3
The legal provisions, authors, and cases already invoked should ordinarily
be sufficient to dispose of this case. But inasmuch as we are announcing
doctrines that have been little understood, in the past, it might not he
inappropriate to indicate their foundations.
Firstly, the Revised Penal Code in articles 365 punishes not only reckless
but also simple negligence. If we were to hold that articles 1902 to 1910 of
the Civil Code refer only to fault or negligence not punished by law,
accordingly to the literal import of article 1093 of the Civil Code, the legal
institution of culpa aquiliana would have very little scope and application in
actual life. Death or injury to persons and damage to property- through any
degree of negligence - even the slightest - would have to be Idemnified
only through the principle of civil liability arising from a crime. In such a
state of affairs, what sphere would remain for cuasi-delito or culpa
aquiliana? We are loath to impute to the lawmaker any intention to bring
about a situation so absurd and anomalous. Nor are we, in the
interpretation of the laws, disposed to uphold the letter that killeth rather
than the spirit that giveth life. We will not use the literal meaning of the law
to smother and render almost lifeless a principle of such ancient origin and
such full-grown development as culpa aquiliana or cuasi-delito, which is
conserved and made enduring in articles 1902 to 1910 of the Spanish Civil
Code.
Secondary, to find the accused guilty in a criminal case, proof of guilt
beyond reasonable doubt is required, while in a civil case, preponderance
of evidence is sufficient to make the defendant pay in damages. There are
numerous cases of criminal negligence which can not be shown beyond
reasonable doubt, but can be proved by a preponderance of evidence. In
such cases, the defendant can and should be made responsible in a civil
action under articles 1902 to 1910 of the Civil Code. Otherwise. there would
be many instances of unvindicated civil wrongs. "Ubi jus Idemnified
remedium." (p. 620,73 Phil.)
Fourthly, because of the broad sweep of the provisions of both the Penal
Code and the Civil Code on this subject, which has given rise to the
overlapping or concurrence of spheres already discussed, and for lack of
understanding of the character and efficacy of the action for culpa
aquiliana, there has grown up a common practice to seek damages only by

virtue of the civil responsibility arising from a crime, forgetting that there is
another remedy, which is by invoking articles 1902-1910 of the Civil Code.
Although this habitual method is allowed by, our laws, it has nevertheless
rendered practically useless and nugatory the more expeditious and
effective remedy based on culpa aquiliana or culpa extra-contractual. In the
present case, we are asked to help perpetuate this usual course. But we
believe it is high time we pointed out to the harms done by such practice
and to restore the principle of responsibility for fault or negligence under
articles 1902 et seq. of the Civil Code to its full rigor. It is high time we
caused the stream of quasi-delict or culpa aquiliana to flow on its own
natural channel, so that its waters may no longer be diverted into that of a
crime under the Penal Code. This will, it is believed, make for the better
safeguarding or private rights because it realtor, an ancient and additional
remedy, and for the further reason that an independent civil action, not
depending on the issues, limitations and results of a criminal prosecution,
and entirely directed by the party wronged or his counsel, is more likely to
secure adequate and efficacious redress. (p. 621, 73 Phil.)
Contrary to an immediate impression one might get upon a reading of the foregoing
excerpts from the opinion in Garcia that the concurrence of the Penal Code and the
Civil Code therein referred to contemplate only acts of negligence and not
intentional voluntary acts - deeper reflection would reveal that the thrust of the
pronouncements therein is not so limited, but that in fact it actually extends to fault
or culpa. This can be seen in the reference made therein to the Sentence of the
Supreme Court of Spain of February 14, 1919, supra, which involved a case of fraud
or estafa, not a negligent act. Indeed, Article 1093 of the Civil Code of Spain, in force
here at the time of Garcia, provided textually that obligations "which are derived
from acts or omissions in which fault or negligence, not punishable by law, intervene
shall be the subject of Chapter II, Title XV of this book (which refers to quasidelicts.)" And it is precisely the underline qualification, "not punishable by law", that
Justice Bocobo emphasized could lead to an ultimo construction or interpretation of
the letter of the law that "killeth, rather than the spirit that giveth lift- hence, the
ruling that "(W)e will not use the literal meaning of the law to smother and render
almost lifeless a principle of such ancient origin and such full-grown development
as culpa aquiliana orquasi-delito, which is conserved and made enduring in articles
1902 to 1910 of the Spanish Civil Code." And so, because Justice Bacobo was
Chairman of the Code Commission that drafted the original text of the new Civil
Code, it is to be noted that the said Code, which was enacted after the Garcia
doctrine, no longer uses the term, 11 not punishable by law," thereby making it
clear that the concept of culpa aquiliana includes acts which are criminal in
character or in violation of the penal law, whether voluntary or matter. Thus, the
corresponding provisions to said Article 1093 in the new code, which is Article 1162,
simply says, "Obligations derived fromquasi-delicto shall be governed by the
provisions of Chapter 2, Title XVII of this Book, (on quasi-delicts) and by special
laws." More precisely, a new provision, Article 2177 of the new code provides:
ART. 2177. Responsibility for fault or negligence under the preceding article
is entirely separate and distinct from the civil liability arising from
negligence under the Penal Code. But the plaintiff cannot recover damages
twice for the same act or omission of the defendant.

13

Torts
CC
According to the Code Commission: "The foregoing provision (Article 2177) through
at first sight startling, is not so novel or extraordinary when we consider the exact
nature of criminal and civil negligence. The former is a violation of the criminal law,
while the latter is a "culpa aquiliana" or quasi-delict, of ancient origin, having always
had its own foundation and individuality, separate from criminal negligence. Such
distinction between criminal negligence and "culpa extracontractual" or "cuasidelito" has been sustained by decision of the Supreme Court of Spain and
maintained as clear, sound and perfectly tenable by Maura, an outstanding Spanish
jurist. Therefore, under the proposed Article 2177, acquittal from an accusation of
criminal negligence, whether on reasonable doubt or not, shall not be a bar to a
subsequent civil action, not for civil liability arising from criminal negligence, but for
damages due to a quasi-delict or 'culpa aquiliana'. But said article forestalls a double
recovery.", (Report of the Code) Commission, p. 162.)
Although, again, this Article 2177 does seem to literally refer to only acts of
negligence, the same argument of Justice Bacobo about construction that upholds
"the spirit that giveth lift- rather than that which is literal that killeth the intent of
the lawmaker should be observed in applying the same. And considering that the
preliminary chapter on human relations of the new Civil Code definitely establishes
the separability and independence of liability in a civil action for acts criminal in
character (under Articles 29 to 32) from the civil responsibility arising from crime
fixed by Article 100 of the Revised Penal Code, and, in a sense, the Rules of Court,
under Sections 2 and 3 (c), Rule 111, contemplate also the same separability, it is
"more congruent with the spirit of law, equity and justice, and more in harmony with
modern progress"- to borrow the felicitous relevant language in Rakes vs. Atlantic.
Gulf and Pacific Co., 7 Phil. 359, to hold, as We do hold, that Article 2176, where it
refers to "fault or negligencia covers not only acts "not punishable by law" but also
acts criminal in character, whether intentional and voluntary or negligent.
Consequently, a separate civil action lies against the offender in a criminal act,
whether or not he is criminally prosecuted and found guilty or acquitted, provided
that the offended party is not allowed, if he is actually charged also criminally, to
recover damages on both scores, and would be entitled in such eventuality only to
the bigger award of the two, assuming the awards made in the two cases vary. In
other words, the extinction of civil liability referred to in Par. (e) of Section 3, Rule
111, refers exclusively to civil liability founded on Article 100 of the Revised Penal
Code, whereas the civil liability for the same act considered as a quasi-delict only
and not as a crime is not estinguished even by a declaration in the criminal case
that the criminal act charged has not happened or has not been committed by the
accused. Briefly stated, We here hold, in reiteration of Garcia, thatculpa
aquiliana includes voluntary and negligent acts which may be punishable by law. 4
It results, therefore, that the acquittal of Reginal Hill in the criminal case has not
extinguished his liability for quasi-delict, hence that acquittal is not a bar to the
instant action against him.

Art 2176
While it is true that parental authority is terminated upon emancipation of the child
(Article 327, Civil Code), and under Article 397, emancipation takes place "by the
marriage of the minor (child)", it is, however, also clear that pursuant to Article 399,
emancipation by marriage of the minor is not really full or absolute. Thus
"(E)mancipation by marriage or by voluntary concession shall terminate parental
authority over the child's person. It shall enable the minor to administer his property
as though he were of age, but he cannot borrow money or alienate or encumber real
property without the consent of his father or mother, or guardian. He can sue and be
sued in court only with the assistance of his father, mother or guardian."
Now under Article 2180, "(T)he obligation imposed by article 2176 is demandable
not only for one's own acts or omissions, but also for those of persons for whom one
is responsible. The father and, in case of his death or incapacity, the mother, are
responsible. The father and, in case of his death or incapacity, the mother, are
responsible for the damages caused by the minor children who live in their
company." In the instant case, it is not controverted that Reginald, although married,
was living with his father and getting subsistence from him at the time of the
occurrence in question. Factually, therefore, Reginald was still subservient to and
dependent on his father, a situation which is not unusual.
It must be borne in mind that, according to Manresa, the reason behind the joint and
solidary liability of presuncion with their offending child under Article 2180 is that is
the obligation of the parent to supervise their minor children in order to prevent
them from causing damage to third persons. 5 On the other hand, the clear
implication of Article 399, in providing that a minor emancipated by marriage may
not, nevertheless, sue or be sued without the assistance of the parents, is that such
emancipation does not carry with it freedom to enter into transactions or do any act
that can give rise to judicial litigation. (See Manresa, Id., Vol. II, pp. 766-767, 776.)
And surely, killing someone else invites judicial action. Otherwise stated, the
marriage of a minor child does not relieve the parents of the duty to see to it that
the child, while still a minor, does not give answerable for the borrowings of money
and alienation or encumbering of real property which cannot be done by their minor
married child without their consent. (Art. 399; Manresa, supra.)
Accordingly, in Our considered view, Article 2180 applies to Atty. Hill notwithstanding
the emancipation by marriage of Reginald. However, inasmuch as it is evident that
Reginald is now of age, as a matter of equity, the liability of Atty. Hill has become
milling, subsidiary to that of his son.
WHEREFORE, the order appealed from is reversed and the trial court is ordered to
proceed in accordance with the foregoing opinion. Costs against appellees.

Coming now to the second issue about the effect of Reginald's emancipation by
marriage on the possible civil liability of Atty. Hill, his father, it is also Our considered
opinion that the conclusion of appellees that Atty. Hill is already free from
responsibility cannot be upheld.

14

Torts
CC

Art 2176
and, therefore, certiorari is improper; and that the Petition is defective inasmuch as
what petitioner actually desires is a Writ of mandamus (Annex "R"). Petitioner's
Motion for Reconsideration was denied by respondent Judge in an Order dated
November 14,1970 (Annex "S" and Annex "U").

G.R. No. L-33171 May 31, 1979

PORFIRIO P. CINCO, petitioner-appellant,
vs. HON. MATEO CANONOY,
Presiding Judge of the Third Branch of the Court of First Instance of Cebu,
HON. LORENZO B. BARRIA City Judge of Mandaue City, Second Branch
ROMEO HILOT, VALERIANA PEPITO and CARLOS PEPITO, respondentsappellees.
MELENCIO-HERRERA, J.:

Hence, this Petition for Review before this Tribunal, to which we gave due course on
February 25, 1971. 3
Petitioner makes these:
ASSIGNMENTS OF ERROR
1.

THE TRIAL COURT, RESPONDENT JUDGE MATEO CANONOY, ERRED IN

HOLDING THAT THE TRIAL OF THE CIVIL CASE NO. 189 FILED IN THE
CITY COURT OF MANDAUE SHOULD BE SUSPENDED UNTIL AFTER A
FINAL JUDGMENT IS RENDERED IN THE CRIMINAL CASE.

2.

THAT THE COURT ERRED IN HOLDING THAT IN ORDER TO AVOID DELAY

THE OFFENDED PARTY MAY SUBMIT HIS CLAIM FOR DAMAGES IN THE
CRIMINAL CASE.

3.

THAT THE COURT ERRED IN HOLDING THAT THE PETITION FOR

certiorari IS NOT PROPER, BECAUSE THE RESOLUTION IN QUESTION IS
INTERLOCUTORY.

4.

THAT THE COURT ERRED IN HOLDING THAT THE PETITION IS

DEFECTIVE. 4

This is a Petition for Review on certiorari of the Decision of the Court of First Instance
of Cebu rendered on November 5, 1970.
The background facts to the controversy may be set forth as follows:
Petitioner herein filed, on February 25, 1970, a Complaint in the City Court of
Mandaue City, Cebu, Branch II, for the recovery of damages on account of a
vehicular accident involving his automobile and a jeepney driven by Romeo Hilot
and operated by Valeriana Pepito and Carlos Pepito, the last three being the private
respondents in this suit. Subsequent thereto, a criminal case was filed against the
driver, Romeo Hilot, arising from the same accident. At the pre-trial in the civil case,
counsel for private respondents moved to suspend the civil action pending the final
determination of the criminal suit, invoking Rule 111, Section 3 (b) of the Rules of
Court, which provides:
(b) After a criminal action has been commenced. no civil action arising from
the same offense can be prosecuted, and the same shall be suspended, in
whatever stage it may be found, until final judgment in the criminal
proceeding has been rendered;
The City Court of Mandaue City in an Order dated August 11, 1970, ordered the
suspension of the civil case. Petitioner's Motion for Reconsideration thereof, having
been denied on August 25, 1970, 1 petitioner elevated the matter on certiorari to the
Court of First Instance of Cebu, respondent Judge presiding, on September 11, 1970,
alleging that the City Judge had acted with grave abuse of discretion in suspending
the civil action for being contrary to law and jurisprudence. 2
On November 5, 1970, respondent Judge dismissed the Petition for certiorari on the
ground that there was no grave abuse of discretion on the part of the City Court in
suspending the civil action inasmuch as damage to property is not one of the
instances when an independent civil action is proper; that petitioner has another
plain, speedy, and adequate remedy under the law, which is to submit his claim for
damages in the criminal case; that the resolution of the City Court is interlocutory

all of which can be synthesized into one decisive issue: whether or not there can be
an independent civil action for damage to property during the pendency of the
criminal action.
From the Complaint filed by petitioner before the City Court of Mandaue City, Cebu,
it is evident that the nature and character of his action was quasidelictual predicated principally on Articles 2176 and 2180 of the Civil Code, which
provide:
Art. 2176. Whoever by act or omission causes damage to another, there
being fault or negligence is obliged to pay for the damage done. Such fault
or negligence, if there is no pre-existing contractual relation between the
parties, is caned a quasi-delict and is governed by the provisions of this
Chapter. (1902a)
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.

15

Torts
CC

Art 2176
xxx xxx xxx
Employers shall be liable for the damages cause by their employees and
household helpers acting within the scope of their assigned tasks, even
though the former are not engaged in any business or industry.
xxx xxx xxx
The responsibility treated of in this article shall cease when the persons
herein mentioned prove that they observed all the diligence of a good
father of a family to prevent damage. (1903a)

Thus, plaintiff made the essential averments that it was the fault or negligence of
the driver, Romeo Hilot, in the operation of the jeepney owned by the Pepitos which
caused the collision between his automobile and said jeepney; that damages were
sustained by petitioner because of the collision; that there was a direct causal
connection between the damages he suffered and the fault and negligence of
private respondents.
Similarly, in the Answer, private respondents contended, among others, that
defendant, Valeriana Pepito, observed due diligence in the selection and supervision
of her employees, particularly of her co-defendant Romeo Hilot, a defense peculiar
to actions based on quasi-delict. 5
Liability being predicated on quasi-delict the civil case may proceed as a separate
and independent civil action, as specifically provided for in Article 2177 of the Civil
Code.
Art. 2177. Responsibility for fault or negligence under the preceding article
is entirely separate and distinct from the civil liability arising from
negligence under the Penal Code. But the plaintiff cannot recover damages
twice for the same act or omission of the defendant. (n)
The crucial distinction between criminal negligence and quasi-delict, which
is readily discernible from the foregoing codal provision, has been
expounded in Barredo vs. Garcia, et al., 73 Phil. 607, 620-621, 6 thus:
Firstly, the Revised Penal Code in article 365 punishes not only reckless but
also simple imprudence. if we were to hold that articles 1902 to 1910 of the
Civil Code refer only to fault or negligence not punished by law, according
to the literal import of article 1093 of the Civil Code, the legal institution
ofculpa aquiliana would have very little scope and application in actual life.
Death or injury to personsand damage to property through any degree of
negligence even the slightest would have to be indemnified only through
the principle of civil hability arising from crime. In such a state of affairs,
what sphere would remain for quasidelito or culpa aquiliana We are loath to
impute to the lawmaker any intention to bring about a situation so absurd

and anomalous. Nor are we, in the interpretation of the laws, disposed to
uphold the letter that killeth rather than the spirit that giveth life. We will
not use the literal meaning of the law to smother and render almost lifeless
a principle of such ancient origin and such full-grown development as culpa
aquiliana or quasi-delito, which is conserved and made enduring in articles
1902 to 11910 of the Spanish Civil Code.
Secondly, to find the accused guilty in a criminal case, proof of guilt beyond
reasonable doubt is required, while in a civil case, preponderance of
evidence is sufficient to make the defendant pay in damages. There are
numerous cases of criminal negligence which cannot be shown beyond
reasonable doubt, but can be proved by a preponderance of evidence. In
such cases, the defendant can and should be made responsible in a civil
action under articles 1902 to 1910 of the Civil Code, otherwise, there would
be many instances of unvindicated civil wrongs. Ubi jus ibi remedium.
Thirdly, to hold that there is only one way to make defendants liability
effective, and that is, to sue the driver and exhaust his (the latter's)
property first, would be tantamount to compelling the plaintiff to follow a
devious and cumbersome method of obtaining a reliel True, there is such a
remedy under our laws, but there is also a more expeditious way, which is
based on the primary and direct responsibility of the defendant under
article 1903 of the Civil Code. Our view of the law is more likely to facilitate
remedy for civil wrongs because the procedure indicated by the defendant
is wasteful and productive of delay, it being a matter of common
knowledge that professional drivers of taxis and similar public conveyances
usually do not have sufficient means with which to pay damages. Why,
then, should the plaintiff be required in all cases to go through this roundabout, unnecessary, and probably useless procedure? In construing the
laws, courts have endeavored to shorten and facilitate the pathways of
right and justice.
At this juncture, it should be said that the primary and direct responsibility
of employers and their presumed negligence are principles calculated to
protect society. Workmen and employees should be carefully chosen and
supervised in order to avoid injury to the public. It is the masters or
employers who principally reap the profits resulting from the services of
these servants and employees. It is but right that they should guarantee
the latter's careful conduct for the personnel and patrimonial safety of
others. As Theilhard has said, "they should reproach themselves, at least,
some for their weakness, others for their poor selection and all for their
negligence." And according to Manresa, "It is much more equitable and just
that such responsibility should fail upon the principal or director who could
have chosen a careful and prudent employee, and not upon the such
employee because of his confidence in the principal or director." (Vol. 12, p.
622, 2nd Ed.) Many jurists also base this primary responsibility of the
employer on the principle of representation of the principal by the agent.
Thus, Oyuelos says in the work already cited (Vol. 7, p. 747) that before
third persons the employer and employee vienen a ser como una sola
personalidad, por refundicion de la del dependiente en la de quien la

16

Torts
CC

Art 2176
emplea y utihza (become as one personality by the merging of the person
of the employee in that of him who employs and utilizes him.) All these
observations acquire a peculiar force and significance when it comes to
motor accidents, and there is need of stressing and accentuating the
responsibility of owners of motor vehicles.
Fourthly, because of the broad sweep of the provisions of both the Penal
Code and the Civil Code on this subject, which has given rise to overlapping
or concurrence of spheres already discussed, and for lack of understanding
of the character and efficacy of the action for culpaaquiliana there has
grown up a common practice to seek damages only by virtue of the Civil
responsibility arising from crime, forgetting that there is another remedy,
which is by invoking articles 1902-1910 of the Civil Code. Although this
habitual method is allowed by our laws, it has nevertheless rendered
practically useless and nugatory the more expeditious and effective remedy
based on culpa aquiliana or culpa extra-contractual. In the present case, we
are asked to help perpetuate this usual course. But we believe it is high
time we pointed out to the harm done by such practice and to restore the
principle of responsibility for fault or negligence under articles 1902 et seq.
of the Civil Code to its full rigor. It is high time we cause the stream
of quasi-delict or culpa aquiliana to flow on its own natural channel, so that
its waters may no longer be diverted into that of a crime under the Penal
Code. This will, it is believed, make for the bet ter safeguarding of private
rights because it re-establishes an ancient and additional remedy, and for
the further reason that an independent civil action, not depending on the
issues, stations and results of a criminal prosecution, and entirely directed
by the party wronged or his counsel is more likely to secure adequate and
efficacious redress. (Garcia vs. Florida 52 SCRA 420, 424-425, Aug. 31,
1973). (Emphasis supplied)

The separate and independent civil action for a quasi-delict is also clearly
recognized in section 2, Rule 111 of the Rules of Court, reading:

case 6 once the criminal action has being commenced, no civil action arising from
the same offense can be prosecuted and the same shall be suspended in whatever
stage it may be found, until final judgment in the criminal proceeding has been
rendered." Stated otherwise, the civil action referred to in Secs. 3(a) and 3(b) of Rule
111 of the Rules of Court, which should be suspended after the criminal action has
been instituted is that arising from the criminal offense not the civil action based
on quasi-delict
Article 31 of the Civil Code then clearly assumes relevance when it provides:
Art. 31. When the civil action is based on an obligation not arising from the
act or omission complained of as a felony, such civil action may proceed
independently of the criminal proceedings and regardless of the result of
the latter.
For obviously, the jural concept of a quasi-delict is that of an independent source of
obligation "not arising from the act or omission complained of as a felony." Article
1157 of the Civil Code bolsters this conclusion when it specifically recognizes that:
Art. 1157. Obligations arise from:
(1) Law;
(2) Contracts;
(3) Quasi-contracts;
(4) Acts or omissions punished by law; and
(5) Quasi-delicts. (1089a)

Sec. 2. Independent civil action. In the cases provided for in Articles 31,
32, 33, 34 and 2177 of the Civil Code of the Philippines, Are independent
civil action entirely separate and distinct from the c action, may be brought
by the injured party during the pendency of the criminal case, provided the
right is reserved as required in the preceding section. Such civil action shag
proceed independently of the criminal prosecution, and shall require only a
preponderance of evidence.
Significant to note is the fact that the foregoing section categorically lists cases
provided for in Article 2177 of the Civil Code, supra, as allowing of an "independent
civil action."
Tested by the hereinabove-quoted legal tenets, it has to be held that the City Court,
in surrounding the civil action, erred in placing reliance on section 3 (b) of Rule 111
of the Rules of Court, supra which refers to "other civil actions arising from cases not
included in the section just cited" (i.e., Section 2, Rule 111 above quoted), in which

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

17

Torts
CC
In the light of the foregoing disquisition, we are constrained to hold that respondent
Judge gravely abused his discretion in upholding the Decision of the City Court of
Mandaue City, Cebu, suspending the civil action based on a quasi-delict until after
the criminal case is finally terminated. Having arrived at this conclusion, a discussion
of the other errors assigned becomes unnecessary.
WHEREFORE, granting the Writ of certiorari prayed for, the Decision of the Court of
First Instance of Cebu sought to be reviewed is hereby set aside, and the City Court
of Mandaue City, Cebu, Branch 11, is hereby ordered to proceed with the hearing of
Civil Case No. 189 of that Court.
Without pronouncement as to costs.
SO ORDERED.

Art 2176
G.R. No. 97336 February 19, 1993
GASHEM
SHOOKAT
BAKSH, petitioner,
vs.
HON. COURT OF APPEALS and MARILOU T. GONZALES, respondents.
DAVIDE, JR., J.:
This is an appeal by certiorari under Rule 45 of the Rules of Court seeking to review
and set aside the Decision 1of the respondent Court of Appeals in CA-G.R. CV No.
24256 which affirmed in toto the 16 October 1939 Decision of Branch 38 (Lingayen)
of the Regional Trial Court (RTC) of Pangasinan in Civil Case No. 16503. Presented is
the issue of whether or not damages may be recovered for a breach of promise to
marry on the basis of Article 21 of the Civil Code of the Philippines.
The antecedents of this case are not complicated:
On 27 October 1987, private respondent, without the assistance of counsel, filed
with the aforesaid trial court a complaint 2 for damages against the petitioner for the
alleged violation of their agreement to get married. She alleges in said complaint
that: she is twenty-two (22) years old, single, Filipino and a pretty lass of good moral
character and reputation duly respected in her community; petitioner, on the other
hand, is an Iranian citizen residing at the Lozano Apartments, Guilig, Dagupan City,
and is an exchange student taking a medical course at the Lyceum Northwestern
Colleges in Dagupan City; before 20 August 1987, the latter courted and proposed to
marry her; she accepted his love on the condition that they would get married; they
therefore agreed to get married after the end of the school semester, which was in
October of that year; petitioner then visited the private respondent's parents in
Baaga, Bugallon, Pangasinan to secure their approval to the marriage; sometime in
20 August 1987, the petitioner forced her to live with him in the Lozano Apartments;
she was a virgin before she began living with him; a week before the filing of the
complaint, petitioner's attitude towards her started to change; he maltreated and
threatened to kill her; as a result of such maltreatment, she sustained injuries;
during a confrontation with a representative of the barangay captain of Guilig a day
before the filing of the complaint, petitioner repudiated their marriage agreement
and asked her not to live with him anymore and; the petitioner is already married to
someone living in Bacolod City. Private respondent then prayed for judgment
ordering the petitioner to pay her damages in the amount of not less than
P45,000.00, reimbursement for actual expenses amounting to P600.00, attorney's
fees and costs, and granting her such other relief and remedies as may be just and
equitable. The complaint was docketed as Civil Case No. 16503.
In his Answer with Counterclaim, 3 petitioner admitted only the personal
circumstances of the parties as averred in the complaint and denied the rest of the
allegations either for lack of knowledge or information sufficient to form a belief as
to the truth thereof or because the true facts are those alleged as his Special and
Affirmative Defenses. He thus claimed that he never proposed marriage to or agreed
to be married with the private respondent; he neither sought the consent and

18

Torts
CC

Art 2176

approval of her parents nor forced her to live in his apartment; he did not maltreat
her, but only told her to stop coming to his place because he discovered that she
had deceived him by stealing his money and passport; and finally, no confrontation
took place with a representative of the barangay captain. Insisting, in his
Counterclaim, that the complaint is baseless and unfounded and that as a result
thereof, he was unnecessarily dragged into court and compelled to incur expenses,
and has suffered mental anxiety and a besmirched reputation, he prayed for an
award of P5,000.00 for miscellaneous expenses and P25,000.00 as moral damages.
After conducting a pre-trial on 25 January 1988, the trial court issued a Pre-Trial
Order 4 embodying the stipulated facts which the parties had agreed upon, to wit:
1.

That the plaintiff is single and resident (sic) of Baaga, Bugallon,

Pangasinan, while the defendant is single, Iranian citizen and resident
(sic) of Lozano Apartment, Guilig, Dagupan City since September 1,
1987 up to the present;

2.

That the defendant is presently studying at Lyceum Northwestern,

Dagupan City, College of Medicine, second year medicine proper;

3.

That the plaintiff is (sic) an employee at Mabuhay Luncheonette ,

Fernandez Avenue, Dagupan City since July, 1986 up to the present
and a (sic) high school graduate;

4.

That the parties happened to know each other when the manager of
the Mabuhay Luncheonette, Johhny Rabino introduced the defendant to
the plaintiff on August 3, 1986.

After trial on the merits, the lower court, applying Article 21 of the Civil Code,
rendered on 16 October 1989 a decision 5 favoring the private respondent. The
petitioner was thus ordered to pay the latter damages and attorney's fees; the
dispositive portion of the decision reads:
IN THE LIGHT of the foregoing consideration, judgment is hereby rendered
in favor of the plaintiff and against the defendant.
1.

Condemning (sic) the defendant to pay the plaintiff the sum of twenty
thousand (P20,000.00) pesos as moral damages.

2.

Condemning further the defendant to play the plaintiff the sum of

three thousand (P3,000.00) pesos as atty's fees and two thousand
(P2,000.00) pesos at (sic) litigation expenses and to pay the costs.

3.

All other claims are denied. 6

The decision is anchored on the trial court's findings and conclusions that (a)
petitioner and private respondent were lovers, (b) private respondent is not a
woman of loose morals or questionable virtue who readily submits to sexual
advances, (c) petitioner, through machinations, deceit and false pretenses, promised
to marry private respondent, d) because of his persuasive promise to marry her, she
allowed herself to be deflowered by him, (e) by reason of that deceitful promise,
private respondent and her parents in accordance with Filipino customs and
traditions made some preparations for the wedding that was to be held at the end
of October 1987 by looking for pigs and chickens, inviting friends and relatives and
contracting sponsors, (f) petitioner did not fulfill his promise to marry her and (g)
such acts of the petitioner, who is a foreigner and who has abused Philippine
hospitality, have offended our sense of morality, good customs, culture and
traditions. The trial court gave full credit to the private respondent's testimony
because, inter alia, she would not have had the temerity and courage to come to
court and expose her honor and reputation to public scrutiny and ridicule if her claim
was false. 7
The above findings and conclusions were culled from the detailed summary of the
evidence for the private respondent in the foregoing decision, digested by the
respondent Court as follows:
According to plaintiff, who claimed that she was a virgin at the time and
that she never had a boyfriend before, defendant started courting her just a
few days after they first met. He later proposed marriage to her several
times and she accepted his love as well as his proposal of marriage on
August 20, 1987, on which same day he went with her to her hometown of
Baaga, Bugallon, Pangasinan, as he wanted to meet her parents and
inform them of their relationship and their intention to get married. The
photographs Exhs. "A" to "E" (and their submarkings) of defendant with
members of plaintiff's family or with plaintiff, were taken that day. Also on
that occasion, defendant told plaintiffs parents and brothers and sisters
that he intended to marry her during the semestral break in October, 1987,
and because plaintiff's parents thought he was good and trusted him, they
agreed to his proposal for him to marry their daughter, and they likewise
allowed him to stay in their house and sleep with plaintiff during the few
days that they were in Bugallon. When plaintiff and defendant later
returned to Dagupan City, they continued to live together in defendant's
apartment. However, in the early days of October, 1987, defendant would
tie plaintiff's hands and feet while he went to school, and he even gave her
medicine at 4 o'clock in the morning that made her sleep the whole day
and night until the following day. As a result of this live-in relationship,
plaintiff became pregnant, but defendant gave her some medicine to abort
the fetus. Still plaintiff continued to live with defendant and kept reminding
him of his promise to marry her until he told her that he could not do so
because he was already married to a girl in Bacolod City. That was the time
plaintiff left defendant, went home to her parents, and thereafter consulted
a lawyer who accompanied her to the barangay captain in Dagupan City.
Plaintiff, her lawyer, her godmother, and a barangay tanod sent by the
barangay captain went to talk to defendant to still convince him to marry
plaintiff, but defendant insisted that he could not do so because he was

19

Torts
CC

Art 2176
already married to a girl in Bacolod City, although the truth, as stipulated
by the parties at the pre-trial, is that defendant is still single.

plaintiff resigned from her job at the restaurant after she had accepted
defendant's proposal (pp. 6-7, tsn March 7, 1988).

Plaintiff's father, a tricycle driver, also claimed that after defendant had
informed them of his desire to marry Marilou, he already looked for
sponsors for the wedding, started preparing for the reception by looking for
pigs and chickens, and even already invited many relatives and friends to
the forthcoming wedding. 8

Upon the other hand, appellant does not appear to be a man of good moral
character and must think so low and have so little respect and regard for
Filipino women that he openly admitted that when he studied in Bacolod
City for several years where he finished his B.S. Biology before he came to
Dagupan City to study medicine, he had a common-law wife in Bacolod City.
In other words, he also lived with another woman in Bacolod City but did
not marry that woman, just like what he did to plaintiff. It is not surprising,
then, that he felt so little compunction or remorse in pretending to love and
promising to marry plaintiff, a young, innocent, trustful country girl, in order
to satisfy his lust on her. 11

Petitioner appealed the trial court's decision to the respondent Court of Appeals
which docketed the case as CA-G.R. CV No. 24256. In his Brief, 9 he contended that
the trial court erred (a) in not dismissing the case for lack of factual and legal basis
and (b) in ordering him to pay moral damages, attorney's fees, litigation expenses
and costs.

and then concluded:

On 18 February 1991, respondent Court promulgated the challenged
decision 10 affirming in toto the trial court's ruling of 16 October 1989. In sustaining
the trial court's findings of fact, respondent Court made the following analysis:
First of all, plaintiff, then only 21 years old when she met defendant who
was already 29 years old at the time, does not appear to be a girl of loose
morals. It is uncontradicted that she was a virgin prior to her unfortunate
experience with defendant and never had boyfriend. She is, as described
by the lower court, a barrio lass "not used and accustomed to trend of
modern urban life", and certainly would (sic) not have allowed
"herself to be deflowered by the defendant if there was no persuasive
promise made by the defendant to marry her." In fact, we agree with the
lower court that plaintiff and defendant must have been sweethearts or so
the plaintiff must have thought because of the deception of defendant, for
otherwise, she would not have allowed herself to be photographed with
defendant in public in so (sic) loving and tender poses as those depicted in
the pictures Exhs. "D" and "E". We cannot believe, therefore, defendant's
pretense that plaintiff was a nobody to him except a waitress at the
restaurant where he usually ate. Defendant in fact admitted that he went to
plaintiff's hometown of Baaga, Bugallon, Pangasinan, at least thrice; at
(sic) the town fiesta on February 27, 1987 (p. 54, tsn May 18, 1988), at (sic)
a beach party together with the manager and employees of the Mabuhay
Luncheonette on March 3, 1987 (p. 50, tsn id.), and on April 1, 1987 when
he allegedly talked to plaintiff's mother who told him to marry her daughter
(pp. 55-56, tsn id.). Would defendant have left Dagupan City where he was
involved in the serious study of medicine to go to plaintiff's hometown in
Baaga, Bugallon, unless there was (sic) some kind of special relationship
between them? And this special relationship must indeed have led to
defendant's insincere proposal of marriage to plaintiff, communicated not
only to her but also to her parents, and (sic) Marites Rabino, the owner of
the restaurant where plaintiff was working and where defendant first
proposed marriage to her, also knew of this love affair and defendant's
proposal of marriage to plaintiff, which she declared was the reason why

In sum, we are strongly convinced and so hold that it was defendantappellant's fraudulent and deceptive protestations of love for and promise
to marry plaintiff that made her surrender her virtue and womanhood to
him and to live with him on the honest and sincere belief that he would
keep said promise, and it was likewise these (sic) fraud and deception on
appellant's part that made plaintiff's parents agree to their daughter's
living-in with him preparatory to their supposed marriage. And as these
acts of appellant are palpably and undoubtedly against morals, good
customs, and public policy, and are even gravely and deeply derogatory
and insulting to our women, coming as they do from a foreigner who has
been enjoying the hospitality of our people and taking advantage of the
opportunity to study in one of our institutions of learning, defendantappellant should indeed be made, under Art. 21 of the Civil Code of the
Philippines, to compensate for the moral damages and injury that he had
caused plaintiff, as the lower court ordered him to do in its decision in this
case. 12
Unfazed by his second defeat, petitioner filed the instant petition on 26 March 1991;
he raises therein the single issue of whether or not Article 21 of the Civil Code
applies to the case at bar. 13
It is petitioner's thesis that said Article 21 is not applicable because he had not
committed any moral wrong or injury or violated any good custom or public policy;
he has not professed love or proposed marriage to the private respondent; and he
has never maltreated her. He criticizes the trial court for liberally invoking Filipino
customs, traditions and culture, and ignoring the fact that since he is a foreigner, he
is not conversant with such Filipino customs, traditions and culture. As an Iranian
Moslem, he is not familiar with Catholic and Christian ways. He stresses that even if
he had made a promise to marry, the subsequent failure to fulfill the same is
excusable or tolerable because of his Moslem upbringing; he then alludes to the
Muslim Code which purportedly allows a Muslim to take four (4) wives and concludes
that on the basis thereof, the trial court erred in ruling that he does not posses good
moral character. Moreover, his controversial "common law life" is now his legal wife

20

Torts
CC

Art 2176

as their marriage had been solemnized in civil ceremonies in the Iranian Embassy.
As to his unlawful cohabitation with the private respondent, petitioner claims that
even if responsibility could be pinned on him for the live-in relationship, the private
respondent should also be faulted for consenting to an illicit arrangement. Finally,
petitioner asseverates that even if it was to be assumed arguendo that he had
professed his love to the private respondent and had also promised to marry her,
such acts would not be actionable in view of the special circumstances of the case.
The mere breach of promise is not actionable. 14

court (Garcia v. Court of Appeals, 33 SCRA 622 [1970]; Sacay v.

Sandiganbayan, 142 SCRA 593 [1986]); (8) When the findings of fact are
conclusions without citation of specific evidence on which they are based
(Ibid.,); (9) When the facts set forth in the petition as well as in the
petitioners main and reply briefs are not disputed by the respondents
(Ibid.,); and (10) The finding of fact of the Court of Appeals is premised on
the supposed absence of evidence and is contradicted by the evidence on
record (Salazar v. Gutierrez, 33 SCRA 242 [1970]).

On 26 August 1991, after the private respondent had filed her Comment to the
petition and the petitioner had filed his Reply thereto, this Court gave due course to
the petition and required the parties to submit their respective Memoranda, which
they subsequently complied with.

Petitioner has not endeavored to joint out to Us the existence of any of the above
quoted exceptions in this case. Consequently, the factual findings of the trial and
appellate courts must be respected.
And now to the legal issue.

As may be gleaned from the foregoing summation of the petitioner's arguments in

support of his thesis, it is clear that questions of fact, which boil down to the issue of
the credibility of witnesses, are also raised. It is the rule in this jurisdiction that
appellate courts will not disturb the trial court's findings as to the credibility of
witnesses, the latter court having heard the witnesses and having had the
opportunity to observe closely their deportment and manner of testifying, unless the
trial court had plainly overlooked facts of substance or value which, if considered,
might affect the result of the case. 15
Petitioner has miserably failed to convince Us that both the appellate and trial courts
had overlooked any fact of substance or values which could alter the result of the
case.
Equally settled is the rule that only questions of law may be raised in a petition for
review on certiorari under Rule 45 of the Rules of Court. It is not the function of this
Court to analyze or weigh all over again the evidence introduced by the parties
before the lower court. There are, however, recognized exceptions to this rule. Thus,
inMedina vs. Asistio, Jr., 16 this Court took the time, again, to enumerate these
exceptions:
xxx xxx xxx
(1) When the conclusion is a finding grounded entirely on speculation,
surmises or conjectures (Joaquin v. Navarro, 93 Phil. 257 [1953]); (2) When
the inference made is manifestly mistaken, absurb or impossible (Luna v.
Linatok, 74 Phil. 15 [1942]); (3) Where there is a grave abuse of discretion
(Buyco v. People, 95 Phil. 453 [1955]); (4) When the judgment is based on a
misapprehension
of
facts
(Cruz
v.
Sosing,
L-4875, Nov. 27, 1953); (5) When the findings of fact are conflicting (Casica
v. Villaseca, L-9590 Ap. 30, 1957; unrep.) (6) When the Court of Appeals, in
making its findings, went beyond the issues of the case and the same is
contrary to the admissions of both appellate and appellee (Evangelista v.
Alto
Surety
and
Insurance
Co.,
103
Phil.
401
[1958]);
(7) The findings of the Court of Appeals are contrary to those of the trial

The existing rule is that a breach of promise to marry per se is not an actionable
wrong. 17 Congress deliberately eliminated from the draft of the New Civil Code the
provisions that would have made it so. The reason therefor is set forth in the report
of the Senate Committees on the Proposed Civil Code, from which We quote:
The elimination of this chapter is proposed. That breach of promise to
marry is not actionable has been definitely decided in the case of De Jesus
vs. Syquia. 18 The history of breach of promise suits in the United States
and in England has shown that no other action lends itself more readily to
abuse by designing women and unscrupulous men. It is this experience
which has led to the abolition of rights of action in the so-called Heart Balm
suits in many of the American states. . . . 19
This notwithstanding, the said Code contains a provision, Article 21, which is
designed to expand the concept of torts or quasi-delict in this jurisdiction by
granting adequate legal remedy for the untold number of moral wrongs which is
impossible for human foresight to specifically enumerate and punish in the statute
books. 20
As the Code Commission itself stated in its Report:
But the Code Commission had gone farther than the sphere of wrongs defined or
determined by positive law. Fully sensible that there are countless gaps in the
statutes, which leave so many victims of moral wrongs helpless, even though they
have actually suffered material and moral injury, the Commission has deemed it
necessary, in the interest of justice, to incorporate in the proposed Civil Code the
following rule:
Art. 23. Any person who wilfully causes loss or injury to another in a
manner that is contrary to morals, good customs or public policy shall
compensate the latter for the damage.

21

Torts
CC

Art 2176

An example will illustrate the purview of the foregoing norm: "A" seduces the
nineteen-year old daughter of "X". A promise of marriage either has not been made,
or can not be proved. The girl becomes pregnant. Under the present laws, there is
no crime, as the girl is above nineteen years of age. Neither can any civil action for
breach of promise of marriage be filed. Therefore, though the grievous moral wrong
has been committed, and though the girl and family have suffered incalculable
moral damage, she and her parents cannot bring action for damages. But under the
proposed article, she and her parents would have such a right of action.
Thus at one stroke, the legislator, if the forgoing rule is approved, would vouchsafe
adequate legal remedy for that untold number of moral wrongs which it is
impossible for human foresight to provide for specifically in the statutes. 21
Article 2176 of the Civil Code, which defines a quasi-delict thus:
Whoever by act or omission causes damage to another, there being fault or
negligence, is obliged to pay for the damage done. Such fault or
negligence, if there is no pre-existing contractual relation between the
parties, is called a quasi-delict and is governed by the provisions of this
Chapter.
is limited to negligent acts or omissions and excludes the notion of willfulness or
intent. Quasi-delict, known in Spanish legal treatises as culpa aquiliana, is a civil law
concept while torts is an Anglo-American or common law concept. Torts is much
broader than culpa aquiliana because it includes not only negligence, but
international criminal acts as well such as assault and battery, false imprisonment
and deceit. In the general scheme of the Philippine legal system envisioned by the
Commission responsible for drafting the New Civil Code, intentional and malicious
acts, with certain exceptions, are to be governed by the Revised Penal Code while
negligent acts or omissions are to be covered by Article 2176 of the Civil Code. 22 In
between these opposite spectrums are injurious acts which, in the absence of Article
21, would have been beyond redress. Thus, Article 21 fills that vacuum. It is even
postulated that together with Articles 19 and 20 of the Civil Code, Article 21 has
greatly broadened the scope of the law on civil wrongs; it has become much more
supple and adaptable than the Anglo-American law on torts. 23
In the light of the above laudable purpose of Article 21, We are of the opinion, and
so hold, that where a man's promise to marry is in fact the proximate cause of the
acceptance of his love by a woman and his representation to fulfill that promise
thereafter becomes the proximate cause of the giving of herself unto him in a sexual
congress, proof that he had, in reality, no intention of marrying her and that the
promise was only a subtle scheme or deceptive device to entice or inveigle her to
accept him and to obtain her consent to the sexual act, could justify the award of
damages pursuant to Article 21 not because of such promise to marry but because
of the fraud and deceit behind it and the willful injury to her honor and reputation
which followed thereafter. It is essential, however, that such injury should have been
committed in a manner contrary to morals, good customs or public policy.

In the instant case, respondent Court found that it was the petitioner's "fraudulent
and deceptive protestations of love for and promise to marry plaintiff that made her
surrender her virtue and womanhood to him and to live with him on the honest and
sincere belief that he would keep said promise, and it was likewise these fraud and
deception on appellant's part that made plaintiff's parents agree to their daughter's
living-in with him preparatory to their supposed marriage." 24 In short, the private
respondent surrendered her virginity, the cherished possession of every single
Filipina, not because of lust but because of moral seduction the kind illustrated by
the Code Commission in its example earlier adverted to. The petitioner could not be
held liable for criminal seduction punished under either Article 337 or Article 338 of
the Revised Penal Code because the private respondent was above eighteen (18)
years of age at the time of the seduction.
Prior decisions of this Court clearly suggest that Article 21 may be applied in a
breach of promise to marry where the woman is a victim of moral seduction. Thus,
in Hermosisima vs. Court of Appeals, 25 this Court denied recovery of damages to the
woman because:
. . . we find ourselves unable to say that petitioner is morally guilty of
seduction, not only because he is approximately ten (10) years younger
than the complainant who was around thirty-six (36) years of age, and as
highly enlightened as a former high school teacher and a life insurance
agent are supposed to be when she became intimate with petitioner,
then a mere apprentice pilot, but, also, because the court of first instance
found that, complainant "surrendered herself" to petitioner because,
"overwhelmed by her love" for him, she "wanted to bind" him by having a
fruit of their engagement even before they had the benefit of clergy.
In Tanjanco vs. Court of Appeals, 26 while this Court likewise hinted at possible
recovery if there had been moral seduction, recovery was eventually denied
because We were not convinced that such seduction existed. The following
enlightening disquisition and conclusion were made in the said case:
The Court of Appeals seem to have overlooked that the example set forth in the
Code Commission's memorandum refers to a tort upon a minor who had
been seduced. The essential feature is seduction, that in law is more than mere
sexual intercourse, or a breach of a promise of marriage; it connotes essentially the
idea of deceit, enticement, superior power or abuse of confidence on the part of the
seducer to which the woman has yielded (U.S. vs. Buenaventura, 27 Phil. 121; U.S.
vs. Arlante, 9 Phil. 595).
It has been ruled in the Buenaventura case (supra) that
To constitute seduction there must in all cases be some sufficient promise
or inducement and the woman must yield because of the promise or other
inducement. If she consents merely from carnal lust and the intercourse is
from mutual desire, there is no seduction (43 Cent. Dig. tit. Seduction, par.
56) She must be induced to depart from the path of virtue by the use of

22

Torts
CC

Art 2176
some species of arts, persuasions and wiles, which are calculated to have
and do have that effect, and which result in her person to ultimately
submitting her person to the sexual embraces of her seducer (27 Phil. 123).

And in American Jurisprudence we find:

On the other hand, in an action by the woman, the enticement, persuasion
or deception is the essence of the injury; and a mere proof of intercourse is
insufficient to warrant a recovery.
Accordingly it is not seduction where the willingness arises out of sexual
desire of curiosity of the female, and the defendant merely affords her the
needed opportunity for the commission of the act. It has been emphasized
that to allow a recovery in all such cases would tend to the demoralization
of the female sex, and would be a reward for unchastity by which a class of
adventuresses would be swift to profit. (47 Am. Jur. 662)
xxx xxx xxx
Over and above the partisan allegations, the fact stand out that for one whole year,
from 1958 to 1959, the plaintiff-appellee, a woman of adult age, maintain intimate
sexual relations with appellant, with repeated acts of intercourse. Such conduct is
incompatible with the idea of seduction. Plainly there is here voluntariness and
mutual passion; for had the appellant been deceived, had she surrendered
exclusively because of the deceit, artful persuasions and wiles of the defendant, she
would not have again yielded to his embraces, much less for one year, without
exacting early fulfillment of the alleged promises of marriage, and would have cut
short all sexual relations upon finding that defendant did not intend to fulfill his
defendant did not intend to fulfill his promise. Hence, we conclude that no case is
made under article 21 of the Civil Code, and no other cause of action being alleged,
no error was committed by the Court of First Instance in dismissing the complaint. 27
In his annotations on the Civil Code, 28 Associate Justice Edgardo L. Paras, who
recently retired from this Court, opined that in a breach of promise to marry where
there had been carnal knowledge, moral damages may be recovered:
. . . if there be criminal or moral seduction, but not if the intercourse was
due
to
mutual
lust.
(Hermosisima
vs.
Court
of
Appeals,
L-14628, Sept. 30, 1960; Estopa vs. Piansay, Jr., L-14733, Sept. 30, 1960;
Batarra vs. Marcos, 7 Phil. 56 (sic); Beatriz Galang vs. Court of Appeals, et
al., L-17248, Jan. 29, 1962). (In other words, if the CAUSE be the promise to
marry, and the EFFECT be the carnal knowledge, there is a chance that
there was criminal or moral seduction, hence recovery of moral damages
will prosper. If it be the other way around, there can be no recovery of
moral damages, because here mutual lust has intervened). . . .

together with "ACTUAL damages, should there be any, such as the expenses for the
wedding presentations (See Domalagon v. Bolifer, 33 Phil. 471).
Senator Arturo M. Tolentino

29

is also of the same persuasion:

It is submitted that the rule in Batarra vs. Marcos, 30 still subsists,

notwithstanding the incorporation of the present article 31 in the Code. The
example given by the Code Commission is correct, if there wasseduction,
not necessarily in the legal sense, but in the vulgar sense of deception. But
when the sexual act is accomplished without any deceit or qualifying
circumstance of abuse of authority or influence, but the woman, already of
age, has knowingly given herself to a man, it cannot be said that there is an
injury which can be the basis for indemnity.
But so long as there is fraud, which is characterized by willfulness (sic), the
action lies. The court, however, must weigh the degree of fraud, if it is
sufficient to deceive the woman under the circumstances, because an act
which would deceive a girl sixteen years of age may not constitute deceit
as to an experienced woman thirty years of age. But so long as there is a
wrongful act and a resulting injury, there should be civil liability, even if the
act is not punishable under the criminal law and there should have been an
acquittal or dismissal of the criminal case for that reason.
We are unable to agree with the petitioner's alternative proposition to the effect that
granting, for argument's sake, that he did promise to marry the private respondent,
the latter is nevertheless also at fault. According to him, both parties are in pari
delicto; hence, pursuant to Article 1412(1) of the Civil Code and the doctrine laid
down in Batarra vs. Marcos, 32 the private respondent cannot recover damages from
the petitioner. The latter even goes as far as stating that if the private respondent
had "sustained any injury or damage in their relationship, it is primarily because of
her own doing, 33 for:
. . . She is also interested in the petitioner as the latter will become a doctor
sooner or later. Take notice that she is a plain high school graduate and a
mere employee . . . (Annex "C") or a waitress (TSN, p. 51, January 25, 1988)
in a luncheonette and without doubt, is in need of a man who can give her
economic security. Her family is in dire need of financial assistance. (TSN,
pp. 51-53, May 18, 1988). And this predicament prompted her to accept a
proposition that may have been offered by the petitioner. 34
These statements reveal the true character and motive of the petitioner. It is clear
that he harbors a condescending, if not sarcastic, regard for the private respondent
on account of the latter's ignoble birth, inferior educational background, poverty
and, as perceived by him, dishonorable employment. Obviously then, from the very
beginning, he was not at all moved by good faith and an honest motive. Marrying
with a woman so circumstances could not have even remotely occurred to him.
Thus, his profession of love and promise to marry were empty words directly
intended to fool, dupe, entice, beguile and deceive the poor woman into believing

23

Torts
CC

Art 2176

that indeed, he loved her and would want her to be his life's partner. His was nothing
but pure lust which he wanted satisfied by a Filipina who honestly believed that by
accepting his proffer of love and proposal of marriage, she would be able to enjoy a
life of ease and security. Petitioner clearly violated the Filipino's concept of morality
and brazenly defied the traditional respect Filipinos have for their women. It can
even be said that the petitioner committed such deplorable acts in blatant disregard
of Article 19 of the Civil Code which directs every person to act with justice, give
everyone his due and observe honesty and good faith in the exercise of his rights
and in the performance of his obligations.
No foreigner must be allowed to make a mockery of our laws, customs and
traditions.
The pari delicto rule does not apply in this case for while indeed, the private
respondent may not have been impelled by the purest of intentions, she eventually
submitted to the petitioner in sexual congress not out of lust, but because of moral
seduction. In fact, it is apparent that she had qualms of conscience about the entire
episode for as soon as she found out that the petitioner was not going to marry her
after all, she left him. She is not, therefore, in pari delicto with the petitioner. Pari
delicto means "in equal fault; in a similar offense or crime; equal in guilt or in legal
fault." 35 At most, it could be conceded that she is merely in delicto.
Equity often interferes for the relief of the less guilty of the parties, where
his transgression has been brought about by the imposition of undue
influence of the party on whom the burden of the original wrong principally
rests, or where his consent to the transaction was itself procured by
fraud. 36
In Mangayao vs. Lasud,

37

We declared:

Appellants likewise stress that both parties being at fault, there should be
no action by one against the other (Art. 1412, New Civil Code). This rule,
however, has been interpreted as applicable only where the fault on both
sides is, more or less, equivalent. It does not apply where one party is
literate or intelligent and the other one is not. (c.f. Bough vs. Cantiveros, 40
Phil. 209).
We should stress, however, that while We find for the private respondent, let it not
be said that this Court condones the deplorable behavior of her parents in letting her
and the petitioner stay together in the same room in their house after giving
approval to their marriage. It is the solemn duty of parents to protect the honor of
their daughters and infuse upon them the higher values of morality and dignity.
WHEREFORE, finding no reversible error in the challenged decision, the instant
petition is hereby DENIED, with costs against the petitioner. SO ORDERED.

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. . . .

G.R. No. 108017 April 3, 1995

24

Torts
CC

Art 2176
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.

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

xxx xxx xxx

(Emphasis supplied)
(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 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

25

Torts
CC

Art 2176
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 quasi-offenses 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:

26

Torts
CC

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

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

27

Torts
CC

Art 2176

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.

28

Torts
CC

G.R. No. L-35095 August 31, 1973

GERMAN
C.
GARCIA,
LUMINOSA
L.
GARCIA,
and
ESTER
FRANCISCO, petitioners, vs. THE HONORABLE MARIANO M. FLORIDO OF THE
COURT OF FIRST INSTANCE OF MISAMIS OCCIDENTAL, MARCELINO INESIN,
RICARDO VAYSON, MACTAN TRANSIT CO., INC., and PEDRO TUMALA Y
DIGAL, respondents.
ANTONIO, J.:
Appeal by certiorari from the decision of the Court of First Instance of Misamis
Occidental, Branch III, in Civil Case No. 2850 (German C. Garcia, et al. vs. Marcelino
Inesin et al.) dated October 21, 1971, dismissing petitioners' action for damages
against respondents, Mactan Transit Co., Inc. and Pedro Tumala "without prejudice to
refiling the said civil action after conviction of the defendants in the criminal case
filed by the Chief of Police of Sindangan Zamboanga del Norte", and from the order
of said Court dated January 21, 1972, denying petitioners' motion for
reconsideration.
On August 4, 1971, petitioners, German C. Garcia, Chief of the Misamis Occidental
Hospital, together with his wife, Luminosa L. Garcia, and Ester Francisco, bookkeeper
of said hospital, hired and boarded a PU car with plate No. 241-8 G Ozamis 71
owned and operated by respondent, Marcelino Inesin, and driven by respondent,
Ricardo Vayson, for a round-trip from Oroquieta City to Zamboanga City, for the
purpose of attending a conference of chiefs of government hospitals, hospital
administrative officers, and bookkeepers of Regional Health Office No. 7 at
Zamboanga City. At about 9:30 a.m., while the PU car was negotiating a slight curve
on the national highway at kilometer 21 in Barrio Guisukan, Sindangan, Zamboanga
del Norte, said car collided with an oncoming passenger bus (No. 25) with plate No.
77-4 W Z.N. 71 owned and operated by the Mactan Transit Co., Inc. and driven by
defendant, Pedro Tumala. As a result of the aforesaid collision, petitioners sustained
various physical injuries which necessitated their medical treatment and
hospitalization.
Alleging that both drivers of the PU car and the passenger bus were at the time of
the accident driving their respective vehicles at a fast clip, in a reckless, grossly
negligent and imprudent manner in gross violation of traffic rules and without due
regard to the safety of the passengers aboard the PU car, petitioners, German C.
Garcia, Luminosa L. Garcia, and Ester Francisco, filed on September 1, 1971 with
respondent Court of First Instance of Misamis Occidental an action for damages (Civil
Case No. 2850) against the private respondents, owners and drivers, respectively, of
the PU car and the passenger bus that figured in the collision, with prayer for
preliminary attachment.

Art 2176
On September 16, 1971, Marcelino Inesin and Ricardo Vayson filed their answer in
the aforementioned Civil Case No. 2850 admitting the contract of carriage with
petitioners but alleged, by way of defense, that the accident was due to the
negligence and reckless imprudence of the bus driver, as when Ricardo Vayson,
driver of the PU car, saw the oncoming passenger bus No. 25 coming from the
opposite direction ascending the incline at an excessive speed, chasing another
passenger bus, he had to stop the PU car in order to give way to the passenger bus,
but, in spite of such precaution, the passenger bus bumped the PU car, thus causing
the accident in question, and, therefore, said private respondents could not be held
liable for the damages caused on petitioners.
On September 29, 1971, respondents, Mactan Transit Co., Inc. and Pedro Tumala,
filed a motion to dismiss on three (3) grounds, namely: 1) that the plaintiffs
(petitioners) had no cause of action; 2) that the complaint carries with it a prayer for
attachment but without the requisite verification, hence defective under the
provision of Sec. 3, Rule 57 of the Rules of Court; and 3) that the defendants
(respondents), Mactan Transit Co., Inc. and its driver, accused Pedro Tumala, had
operated said passenger bus with maximum care and prudence.
The principal argument advanced in said motion to dismiss was that the petitioners
had no cause of action for on August 11, 1971, or 20 days before the filing of the
present action for damages, respondent Pedro Tumala was charged in Criminal Case
No. 4960 of the Municipal Court of Sindangan, Zamboanga del Norte, in a complaint
filed by the Chief of Police for "double serious and less serious physical injuries
through reckless imprudence", and that, with the filing of the aforesaid criminal
case, no civil action could be filed subsequent thereto unless the criminal case has
been finally adjudicated, pursuant to Sec. 3 of Rule 111 of the Rules of Court, and,
therefore, the filing of the instant civil action is premature, because the liability of
the employer is merely subsidiary and does not arise until after final judgment has
been rendered finding the driver, Pedro Tumala guilty of negligence; that Art. 33 of
the New Civil Code, is not applicable because Art. 33 applied only to the crimes of
physical injuries or homicide, not to the negligent act or imprudence of the driver.
On October 14, 1971, petitioners filed an opposition to said motion to dismiss
alleging that the aforesaid action for damages was instituted not to enforce the civil
liability of the respondents under Art. 100 of the Revised Penal Code but for their
civil liability on quasi-delicts pursuant to Articles 2176-2194, as the same negligent
act causing damages may produce civil liability arising from a crime under the
Revised Penal Code or create an action for quasi-delict or culpa extra-contractual
under the Civil Code, and the party seeking recovery is free to choose which remedy
to enforce.
In dismissing the complaint for damages in Civil Case No. 2850, the lower court
sustained the arguments of respondents, Mactan Transit Co., Inc. and Pedro Tumala,
and declared that whether or not "the action for damages is based on criminal
negligence or civil negligence known as culpa aquiliana in the Civil Code or tort
under American law" there "should be a showing that the offended party expressly
waived the civil action or reserved his right to institute it separately" and that "the
allegations of the complaint in culpa aquiliana must not be tainted by any assertion

29

Torts
CC
of violation of law or traffic rules or regulations" and because of the prayer in the
complaint asking the Court to declare the defendants jointly and severally liable for
moral, compensatory and exemplary damages, the Court is of the opinion that the
action was not based on "culpa aquiliana or quasi-delict."
Petitioners' motion for reconsideration was denied by the trial court on January 21,
1972, hence this appeal oncertiorari.
There is no question that from a careful consideration of the allegations contained in
the complaint in Civil Case No. 2850, the essential averments for a quasi-delictual
action under Articles 2176-2194 of the New Civil Code are present, namely: a) act or
omission of the private respondents; b) presence of fault or negligence or the lack of
due care in the operation of the passenger bus No. 25 by respondent Pedro Tumala
resulting in the collision of the bus with the passenger car; c) physical injuries and
other damages sustained by petitioners as a result of the collision; d) existence of
direct causal connection between the damage or prejudice and the fault or
negligence of private respondents; and e) the absence of pre-existing contractual
relations between the parties. The circumstance that the complaint alleged that
respondents violated traffic rules in that the driver drove the vehicle "at a fast clip in
a reckless, grossly negligent and imprudent manner in violation of traffic rules and
without due regard to the safety of the passengers aboard the PU car" does not
detract from the nature and character of the action, as one based on culpa
aquiliana. The violation of traffic rules is merely descriptive of the failure of said
driver to observe for the protection of the interests of others, that degree of care,
precaution and vigilance which the circumstances justly demand, which failure
resulted in the injury on petitioners. Certainly excessive speed in violation of traffic
rules is a clear indication of negligence. Since the same negligent act resulted in the
filing of the criminal action by the Chief of Police with the Municipal Court (Criminal
Case No. 4960) and the civil action by petitioners, it is inevitable that the averments
on the drivers' negligence in both complaints would substantially be the same. It
should be emphasized that the same negligent act causing damages may produce a
civil liability arising from a crime under Art. 100 of the Revised Penal Code or create
an action for quasi-delict or culpa extra-contractual under Arts. 2176-2194 of the
New Civil Code. This distinction has been amply explained in Barredo vs. Garcia, et
al. (73 Phil. 607, 620-621). 1
It is true that under Sec. 2 in relation to Sec. 1 of Rule 111 of the Revised Rules of
Court which became effective on January 1, 1964, in the cases provided for by
Articles 31, 33, 39 and 2177 of the Civil Code, an independent civil action entirely
separate and distinct from the civil action, may be instituted by the injured party
during the pendency of the criminal case, provided said party has reserved his right
to institute it separately, but it should be noted, however, that neither Section 1 nor
Section 2 of Rule 111 fixes a time limit when such reservation shall be made.
In Tactaquin v. Palileo, 2 where the reservation was made after the tort-feasor had
already pleaded guilty and after the private prosecutor had entered his appearance
jointly with the prosecuting attorney in the course of the criminal proceedings, and
the tort-feasor was convicted and sentenced to pay damages to the offended party
by final judgment in said criminal case, We ruled that such reservation is legally
ineffective because the offended party cannot recover damages twice for the same
act or omission of the defendant. We explained in Meneses vs. Luat 3 that when the

Art 2176
criminal action for physical injuries against the defendant did not proceed to trial as
he pleaded guilty upon arraignment and the Court made no pronouncement on the
matter or damages suffered by the injured party, the mere appearance of private
counsel in representation of the offended party in said criminal case does not
constitute such active intervention as could impart an intention to press a claim for
damages in the same action, and, therefore, cannot bar a separate civil action for
damages subsequently instituted on the same ground under Article 33 of the New
Civil Code.
In the case at bar, there is no question that petitioners never intervened in the
criminal action instituted by the Chief of Police against respondent Pedro Tumala,
much less has the said criminal action been terminated either by conviction or
acquittal of said accused.
It is, therefore, evident that by the institution of the present civil action for damages,
petitioners have in effect abandoned their right to press recovery for damages in the
criminal case, and have opted instead to recover them in the present civil case.
As a result of this action of petitioners the civil liability of private respondents to the
former has ceased to be involved in the criminal action. Undoubtedly an offended
party loses his right to intervene in the prosecution of a criminal case, not only when
he has waived the civil action or expressly reserved his right to institute, but also
when he has actually instituted the civil action. For by either of such actions his
interest in the criminal case has disappeared.
As we have stated at the outset, the same negligent act causing damages may
produce a civil liability arising from crime or create an action for quasi-delict or culpa
extra-contractual. The former is a violation of the criminal law, while the latter is a
distinct and independent negligence, having always had its own foundation and
individuality. Some legal writers are of the view that in accordance with Article 31,
the civil action based upon quasi-delict may proceed independently of the criminal
proceeding for criminal negligence and regardless of the result of the latter. Hence,
"the proviso in Section 2 of Rule 111 with reference to ... Articles 32, 33 and 34 of
the Civil Code is contrary to the letter and spirit of the said articles, for these articles
were drafted ... and are intended to constitute as exceptions to the general rule
stated in what is now Section 1 of Rule 111. The proviso which is procedural, may
also be regarded as an unauthorized amendment of substantive law, Articles 32, 33
and 34 of the Civil Code, which do not provide for the reservation required in
the proviso." 4 But in whatever way We view the institution of the civil action for
recovery of damages under quasi-delict by petitioners, whether as one that should
be governed by the provisions of Section 2 of Rule 111 of the Rules which require
reservation by the injured party considering that by the institution of the civil action
even before the commencement of the trial of the criminal case, petitioners have
thereby foreclosed their right to intervene therein, or one where reservation to file
the civil action need not be made, for the reason that the law itself (Article 33 of the
Civil Code) already makes the reservation and the failure of the offended party to do
so does not bar him from bringing the action, under the peculiar circumstances of
the case, We find no legal justification for respondent court's order of dismissal.

30

Torts
CC
WHEREFORE, the decision and order appealed from are hereby reversed and set
aside, and the court a quo is directed to proceed with the trial of the case. Costs
against private respondents.

Art 2176
Code on quasi-delicts such that the resulting civil case can proceed independently of
the criminal case.
The antecedent facts are as follows:
Petitioner spouses Emmanuel and Natividad Andamo are the owners of a parcel of
land situated in Biga (Biluso) Silang, Cavite which is adjacent to that of private
respondent, Missionaries of Our Lady of La Salette, Inc., a religious corporation.
Within the land of respondent corporation, waterpaths and contrivances, including
an artificial lake, were constructed, which allegedly inundated and eroded
petitioners' land, caused a young man to drown, damaged petitioners' crops and
plants, washed away costly fences, endangered the lives of petitioners and their
laborers during rainy and stormy seasons, and exposed plants and other
improvements to destruction.
In July 1982, petitioners instituted a criminal action, docketed as Criminal Case No.
TG-907-82, before the Regional Trial Court of Cavite, Branch 4 (Tagaytay City),
against Efren Musngi, Orlando Sapuay and Rutillo Mallillin, officers and directors of
herein respondent corporation, for destruction by means of inundation under Article
324 of the Revised Penal Code.
Subsequently, on February 22, 1983, petitioners filed another action against
respondent corporation, this time a civil case, docketed as Civil Case No. TG-748, for
damages with prayer for the issuance of a writ of preliminary injunction before the
same court. 1
On March 11, 1983, respondent corporation filed its answer to the complaint and
opposition to the issuance of a writ of preliminary injunction. Hearings were
conducted including ocular inspections on the land. However, on April 26, 1984, the
trial court, acting on respondent corporation's motion to dismiss or suspend the civil
action, issued an order suspending further hearings in Civil Case No, TG-748 until
after judgment in the related Criminal Case No. TG-907-82.

G.R. No. 74761 November 6, 1990

NATIVIDAD V. ANDAMO and EMMANUEL R. ANDAMO, petitioners, vs.
INTERMEDIATE APPELLATE COURT (First Civil Cases Division) and
MISSIONARIES OF OUR LADY OF LA SALETTE, INC., respondents.
FERNAN, C.J.:
The pivotal issue in this petition for certiorari, prohibition and mandamus is whether
a corporation, which has built through its agents, waterpaths, water conductors and
contrivances within its land, thereby causing inundation and damage to an adjacent
land, can be held civilly liable for damages under Articles 2176 and 2177 of the Civil

Resolving respondent corporation's motion to dismiss filed on June 22, 1984, the trial
court issued on August 27, 1984 the disputed order dismissing Civil Case No. TG-748
for lack of jurisdiction, as the criminal case which was instituted ahead of the civil
case was still unresolved. Said order was anchored on the provision of Section 3 (a),
Rule III of the Rules of Court which provides that "criminal and civil actions arising
from the same offense may be instituted separately, but after the criminal action
has been commenced the civil action cannot be instituted until final judgment has
been rendered in the criminal action." 2
Petitioners appealed from that order to the Intermediate Appellate Court.

On February 17, 1986, respondent Appellate Court, First Civil Cases Division,
promulgated a decision 4 affirming the questioned order of the trial court. 5 A motion

31

Torts
CC

Art 2176

for reconsideration filed by petitioners was denied by the Appellate Court in its
resolution dated May 19, 1986. 6

that the water below it seeps into, and the excess water above it inundates,
portions of the adjoining land of plaintiffs.

Directly at issue is the propriety of the dismissal of Civil Case No. TG-748 in
accordance with Section 3 (a) of Rule 111 of the Rules of Court. Petitioners contend
that the trial court and the Appellate Court erred in dismissing Civil Case No. TG-748
since it is predicated on a quasi-delict. Petitioners have raised a valid point.

6) That as a result of the inundation brought about by defendant's

aforementioned water conductors, contrivances and manipulators, a young man
was drowned to death, while herein plaintiffs suffered and will continue to suffer,
as follows:

It is axiomatic that the nature of an action filed in court is determined by the facts
alleged in the complaint as constituting the cause of action. 7 The purpose of an
action or suit and the law to govern it, including the period of prescription, is to be
determined not by the 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. 8 The
nature of an action is not necessarily determined or controlled by its title or heading
but the body of the pleading or complaint itself. To avoid possible denial of
substantial justice due to legal technicalities, pleadings as well as remedial laws
should be liberally construed so that the litigants may have ample opportunity to
prove their respective claims. 9
Quoted hereunder are the pertinent portions of petitioners' complaint in Civil Case
No. TG-748:
4) That within defendant's land, likewise located at Biga (Biluso), Silang,
Cavite, adjacent on the right side of the aforesaid land of plaintiffs,
defendant constructed waterpaths starting from the middle-right portion
thereof leading to a big hole or opening, also constructed by defendant,
thru the lower portion of its concrete hollow-blocks fence situated on the
right side of its cemented gate fronting the provincial highway, and
connected by defendant to a man height inter-connected cement culverts
which were also constructed and lain by defendant cross-wise beneath the
tip of the said cemented gate, the left-end of the said inter-connected
culverts again connected by defendant to a big hole or opening thru the
lower portion of the same concrete hollowblocks fence on the left side of
the said cemented gate, which hole or opening is likewise connected by
defendant to the cemented mouth of a big canal, also constructed by
defendant, which runs northward towards a big hole or opening which was
also built by defendant thru the lower portion of its concrete hollow-blocks
fence which separates the land of plaintiffs from that of defendant (and
which serves as the exit-point of the floodwater coming from the land of
defendant, and at the same time, the entrance-point of the same
floodwater to the land of plaintiffs, year after year, during rainy or stormy
seasons.
5) That moreover, on the middle-left portion of its land just beside the land
of plaintiffs, defendant also constructed an artificial lake, the base of which
is soil, which utilizes the water being channeled thereto from its water
system thru inter-connected galvanized iron pipes (No. 2) and
complimented by rain water during rainy or stormy seasons, so much so

a)

Portions of the land of plaintiffs were eroded and converted to

deep, wide and long canals, such that the same can no longer be
planted to any crop or plant.

b)

Costly fences constructed by plaintiffs were, on several occasions,

washed away.

c)

During rainy and stormy seasons the lives of plaintiffs and their
laborers are always in danger.

d)

Plants and other improvements on other portions of the land of

plaintiffs are exposed to destruction. ... 10

A careful examination of the aforequoted complaint shows that the civil action is one
under Articles 2176 and 2177 of the Civil Code on quasi-delicts. All the elements of a
quasi-delict are present, to wit: (a) damages suffered by the plaintiff, (b) fault or
negligence of the defendant, or some other person for whose acts he must respond; and
(c) the connection of cause and effect between the fault or negligence of the defendant
and the damages incurred by the plaintiff. 11
Clearly, from petitioner's complaint, the waterpaths and contrivances built by respondent
corporation are alleged to have inundated the land of petitioners. There is therefore, an
assertion of a causal connection between the act of building these waterpaths and the
damage sustained by petitioners. Such action if proven constitutes fault or negligence
which may be the basis for the recovery of damages.
In the case of Samson vs. Dionisio, 12 the Court applied Article 1902, now Article 2176 of
the Civil Code and held that "any person who without due authority constructs a bank or
dike, stopping the flow or communication between a creek or a lake and a river, thereby
causing loss and damages to a third party who, like the rest of the residents, is entitled to
the use and enjoyment of the stream or lake, shall be liable to the payment of an
indemnity for loss and damages to the injured party.
While the property involved in the cited case belonged to the public domain and the
property subject of the instant case is privately owned, the fact remains that petitioners'
complaint sufficiently alleges that petitioners have sustained and will continue to sustain
damage due to the waterpaths and contrivances built by respondent corporation. Indeed,
the recitals of the complaint, the alleged presence of damage to the petitioners, the act or
omission of respondent corporation supposedly constituting fault or negligence, and the
causal connection between the act and the damage, with no pre-existing contractual
obligation between the parties make a clear case of a quasi delict or culpa aquiliana.

32

Torts
CC

Art 2176

It must be stressed that the use of one's property is not without limitations. Article 431 of
the Civil Code provides that "the owner of a thing cannot make use thereof in such a
manner as to injure the rights of a third person." SIC UTERE TUO UT ALIENUM NON
LAEDAS. Moreover, adjoining landowners have mutual and reciprocal duties which require
that each must use his own land in a reasonable manner so as not to infringe upon the
rights and interests of others. Although we recognize the right of an owner to build
structures on his land, such structures must be so constructed and maintained using all
reasonable care so that they cannot be dangerous to adjoining landowners and can
withstand the usual and expected forces of nature. If the structures cause injury or
damage to an adjoining landowner or a third person, the latter can claim indemnification
for the injury or damage suffered.
Article 2176 of the Civil Code imposes a civil liability on a person for damage caused by
his act or omission constituting fault or negligence, thus:
Article 2176. Whoever by act or omission causes damage to another, there
being fault or negligence, is obliged to pay for the damage done. Such fault or
negligence, if there is no pre-existing contractual relation between the parties, is
called a quasi-delict and is governed by the provisions of this chapter.
Article 2176, whenever it refers to "fault or negligence", covers not only acts "not
punishable by law" but also acts criminal in character, whether intentional and voluntary
or negligent. Consequently, a separate civil action lies against the offender in a criminal
act, whether or not he is criminally prosecuted and found guilty or acquitted, provided
that the offended party is not allowed, (if the tortfeasor is actually charged also
criminally), to recover damages on both scores, and would be entitled in such eventuality
only to the bigger award of the two, assuming the awards made in the two cases vary. 13
The distinctness of quasi-delicta is shown in Article 2177 of the Civil Code, which states:
Article 2177. Responsibility for fault or negligence under the preceding article is
entirely separate and distinct from the civil liability arising from negligence
under the Penal Code. But the plaintiff cannot recover damages twice for the
same act or omission of the defendant.
According to the Report of the Code Commission "the foregoing provision though at first
sight startling, is not so novel or extraordinary when we consider the exact nature of
criminal and civil negligence. The former is a violation of the criminal law, while the latter
is a distinct and independent negligence, which is a "culpa aquiliana" or quasi-delict, of
ancient origin, having always had its own foundation and individuality, separate from
criminal negligence. Such distinction between criminal negligence and "culpa extracontractual" or "cuasi-delito" has been sustained by decisions of the Supreme Court of
Spain ... 14
In the case of Castillo vs. Court of Appeals, 15 this Court held that a quasi-delict or culpa
aquiliana is a separate legal institution under the Civil Code with a substantivity all its
own, and individuality that is entirely apart and independent from a delict or crime a
distinction exists between the civil liability arising from a crime and the responsibility for
quasi-delicts or culpa extra-contractual. The same negligence causing damages may
produce civil liability arising from a crime under the Penal Code, or create an action for
quasi-delicts or culpa extra-contractual under the Civil Code. Therefore, the acquittal or

conviction in the criminal case is entirely irrelevant in the civil case, unless, of course, in
the event of an acquittal where the court has declared that the fact from which the civil
action arose did not exist, in which case the extinction of the criminal liability would carry
with it the extinction of the civil liability.
In Azucena vs. Potenciano, 16 the Court declared that in quasi-delicts, "(t)he civil action is
entirely independent of the criminal case according to Articles 33 and 2177 of the Civil
Code. There can be no logical conclusion than this, for to subordinate the civil action
contemplated in the said articles to the result of the criminal prosecution whether it be
conviction or acquittal would render meaningless the independent character of the civil
action and the clear injunction in Article 31, that his action may proceed independently of
the criminal proceedings and regardless of the result of the latter."
WHEREFORE, the assailed decision dated February 17, 1986 of the then Intermediate
Appellate Court affirming the order of dismissal of the Regional Trial Court of Cavite,
Branch 18 (Tagaytay City) dated August 17, 1984 is hereby REVERSED and SET ASIDE.
The trial court is ordered to reinstate Civil Case No. TG-748 entitled "Natividad V. Andamo
and Emmanuel R. Andamo vs. Missionaries of Our Lady of La Salette Inc." and to proceed
with the hearing of the case with dispatch. This decision is immediately executory. Costs
against respondent corporation. SO ORDERED.

G.R. No. L-4977

March 22, 1910

DAVID TAYLOR, plaintiff-appellee, vs. THE MANILA ELECTRIC RAILROAD AND

LIGHT COMPANY, defendant-appellant.
CARSON, J.:
An action to recover damages for the loss of an eye and other injuries, instituted by
David Taylor, a minor, by his father, his nearest relative.
The defendant is a foreign corporation engaged in the operation of a street railway
and an electric light system in the city of Manila. Its power plant is situated at the
eastern end of a small island in the Pasig River within the city of Manila, known as
the Isla del Provisor. The power plant may be reached by boat or by crossing a
footbridge, impassable for vehicles, at the westerly end of the island.
The plaintiff, David Taylor, was at the time when he received the injuries complained
of, 15 years of age, the son of a mechanical engineer, more mature than the
average boy of his age, and having considerable aptitude and training in mechanics.
On the 30th of September, 1905, plaintiff, with a boy named Manuel Claparols,
about 12 years of age, crossed the footbridge to the Isla del Provisor, for the
purpose of visiting one Murphy, an employee of the defendant, who and promised to
make them a cylinder for a miniature engine. Finding on inquiry that Mr. Murphy was
not in his quarters, the boys, impelled apparently by youthful curiosity and perhaps
by the unusual interest which both seem to have taken in machinery, spent some

33

Torts
CC
time in wandering about the company's premises. The visit was made on a Sunday
afternoon, and it does not appear that they saw or spoke to anyone after leaving the
power house where they had asked for Mr. Murphy.
After watching the operation of the travelling crane used in handling the defendant's
coal, they walked across the open space in the neighborhood of the place where the
company dumped in the cinders and ashes from its furnaces. Here they found some
twenty or thirty brass fulminating caps scattered on the ground. These caps are
approximately of the size and appearance of small pistol cartridges and each has
attached to it two long thin wires by means of which it may be discharged by the
use of electricity. They are intended for use in the explosion of blasting charges of
dynamite, and have in themselves a considerable explosive power. After some
discussion as to the ownership of the caps, and their right to take them, the boys
picked up all they could find, hung them on stick, of which each took end, and
carried them home. After crossing the footbridge, they met a little girl named Jessie
Adrian, less than 9 years old, and all three went to the home of the boy Manuel. The
boys then made a series of experiments with the caps. They trust the ends of the
wires into an electric light socket and obtained no result. They next tried to break
the cap with a stone and failed. Manuel looked for a hammer, but could not find one.
Then they opened one of the caps with a knife, and finding that it was filled with a
yellowish substance they got matches, and David held the cap while Manuel applied
a lighted match to the contents. An explosion followed, causing more or less serious
injuries to all three. Jessie, who when the boys proposed putting a match to the
contents of the cap, became frightened and started to run away, received a slight
cut in the neck. Manuel had his hand burned and wounded, and David was struck in
the face by several particles of the metal capsule, one of which injured his right eye
to such an extent as to the necessitate its removal by the surgeons who were called
in to care for his wounds.
The evidence does definitely and conclusively disclose how the caps came to be on
the defendant's premises, nor how long they had been there when the boys found
them. It appears, however, that some months before the accident, during the
construction of the defendant's plant, detonating caps of the same size and kind as
those found by the boys were used in sinking a well at the power plant near the
place where the caps were found; and it also appears that at or about the time when
these caps were found, similarly caps were in use in the construction of an extension
of defendant's street car line to Fort William McKinley. The caps when found
appeared to the boys who picked them up to have been lying for a considerable
time, and from the place where they were found would seem to have been discarded
as detective or worthless and fit only to be thrown upon the rubbish heap.
No measures seems to have been adopted by the defendant company to prohibit or
prevent visitors from entering and walking about its premises unattended, when
they felt disposed so to do. As admitted in defendant counsel's brief, "it is
undoubtedly true that children in their play sometimes crossed the foot bridge to the
islands;" and, we may add, roamed about at will on the uninclosed premises of the
defendant, in the neighborhood of the place where the caps were found. There is
evidence that any effort ever was made to forbid these children from visiting the
defendant company's premises, although it must be assumed that the company or
its employees were aware of the fact that they not infrequently did so.

Art 2176
Two years before the accident, plaintiff spent four months at sea, as a cabin boy on
one of the interisland transports. Later he took up work in his father's office, learning
mechanical drawing and mechanical engineering. About a month after his accident
he obtained employment as a mechanical draftsman and continued in that
employment for six months at a salary of P2.50 a day; and it appears that he was a
boy of more than average intelligence, taller and more mature both mentally and
physically than most boys of fifteen.
The facts set out in the foregoing statement are to our mind fully and conclusively
established by the evidence of record, and are substantially admitted by counsel.
The only questions of fact which are seriously disputed are plaintiff's allegations that
the caps which were found by plaintiff on defendant company's premises were the
property of the defendant, or that they had come from its possession and control,
and that the company or some of its employees left them exposed on its premises at
the point where they were found.
The evidence in support of these allegations is meager, and the defendant company,
apparently relying on the rule of law which places the burden of proof of such
allegations upon the plaintiff, offered no evidence in rebuttal, and insists that
plaintiff failed in his proof. We think, however, that plaintiff's evidence is sufficient to
sustain a finding in accord with his allegations in this regard.
It was proven that caps, similar to those found by plaintiff, were used, more or less
extensively, on the McKinley extension of the defendant company's track; that some
of these caps were used in blasting a well on the company's premises a few months
before the accident; that not far from the place where the caps were found the
company has a storehouse for the materials, supplies and so forth, used by it in its
operations as a street railway and a purveyor of electric light; and that the place, in
the neighborhood of which the caps were found, was being used by the company as
a sort of dumping ground for ashes and cinders. Fulminating caps or detonators for
the discharge by electricity of blasting charges by dynamite are not articles in
common use by the average citizen, and under all the circumstances, and in the
absence of all evidence to the contrary, we think that the discovery of twenty or
thirty of these caps at the place where they were found by the plaintiff on
defendant's premises fairly justifies the inference that the defendant company was
either the owner of the caps in question or had the caps under its possession and
control. We think also that the evidence tends to disclose that these caps or
detonators were willfully and knowingly thrown by the company or its employees at
the spot where they were found, with the expectation that they would be buried out
of the sight by the ashes which it was engaged in dumping in that neighborhood,
they being old and perhaps defective; and, however this may be, we are satisfied
that the evidence is sufficient to sustain a finding that the company or some of its
employees either willfully or through an oversight left them exposed at a point on its
premises which the general public, including children at play, where not prohibited
from visiting, and over which the company knew or ought to have known that young
boys were likely to roam about in pastime or in play.
Counsel for appellant endeavors to weaken or destroy the probative value of the
facts on which these conclusions are based by intimidating or rather assuming that

34

Torts
CC

Art 2176

the blasting work on the company's well and on its McKinley extension was done by
contractors. It was conclusively proven, however, that while the workman employed
in blasting the well was regularly employed by J. G. White and Co., a firm of
contractors, he did the work on the well directly and immediately under the
supervision and control of one of defendant company's foremen, and there is no
proof whatever in the record that the blasting on the McKinley extension was done
by independent contractors. Only one witness testified upon this point, and while he
stated that he understood that a part of this work was done by contract, he could
not say so of his own knowledge, and knew nothing of the terms and conditions of
the alleged contract, or of the relations of the alleged contractor to the defendant
company. The fact having been proven that detonating caps were more or less
extensively employed on work done by the defendant company's directions and on
its behalf, we think that the company should have introduced the necessary
evidence to support its contention if it wished to avoid the not unreasonable
inference that it was the owner of the material used in these operations and that it
was responsible for tortious or negligent acts of the agents employed therein, on the
ground that this work had been intrusted to independent contractors as to whose
acts the maxim respondent superior should not be applied. If the company did not in
fact own or make use of caps such as those found on its premises, as intimated by
counsel, it was a very simple matter for it to prove that fact, and in the absence of
such proof we think that the other evidence in the record sufficiently establishes the
contrary, and justifies the court in drawing the reasonable inference that the caps
found on its premises were its property, and were left where they were found by the
company or some of its employees.
Plaintiff appears to have rested his case, as did the trial judge his decision in
plaintiff's favor, upon the provisions of article 1089 of the Civil Code read together
with articles 1902, 1903, and 1908 of that code.
ART. 1089 Obligations are created by law, by contracts, by quasi-contracts,
and illicit acts and omissions or by those in which any kind of fault or
negligence occurs.
ART. 1902 A person who by an act or omission causes damage to another
when there is fault or negligence shall be obliged to repair the damage so
done.
ART. 1903 The obligation imposed by the preceding article is demandable,
not only for personal acts and omissions, but also for those of the persons
for whom they should be responsible.
The father, and on his death or incapacity the mother, is liable for the
damages caused by the minors who live with them.
xxx

xxx

xxx

Owners or directors of an establishment or enterprise are equally liable for

damages caused by their employees in the service of the branches in which
the latter may be employed or on account of their duties.
xxx

xxx

xxx

The liability referred to in this article shall cease when the persons
mentioned therein prove that they employed all the diligence of a good
father of a family to avoid the damage.
ART. 1908 The owners shall also be liable for the damage caused
1 By the explosion of machines which may not have been cared for with
due diligence, and for kindling of explosive substances which may not have
been placed in a safe and proper place.
Counsel for the defendant and appellant rests his appeal strictly upon his contention
that the facts proven at the trial do not established the liability of the defendant
company under the provisions of these articles, and since we agree with this view of
the case, it is not necessary for us to consider the various questions as to form and
the right of action (analogous to those raised in the case of Rakes vs. Atlantic, Gulf
and Pacific Co., 7 Phil. Rep., 359), which would, perhaps, be involved in a decision
affirming the judgment of the court below.
We agree with counsel for appellant that under the Civil Code, as under the
generally accepted doctrine in the United States, the plaintiff in an action such as
that under consideration, in order to establish his right to a recovery, must establish
by competent evidence:
(1) Damages to the plaintiff.
(2) Negligence by act or omission of which defendant personally, or some
person for whose acts it must respond, was guilty.
(3) The connection of cause and effect between the negligence and the
damage.
These proposition are, of course, elementary, and do not admit of discussion, the
real difficulty arising in the application of these principles to the particular facts
developed in the case under consideration.
It is clear that the accident could not have happened and not the fulminating caps
been left exposed at the point where they were found, or if their owner had
exercised due care in keeping them in an appropriate place; but it is equally clear
that plaintiff would not have been injured had he not, for his own pleasure and
convenience, entered upon the defendant's premises, and strolled around thereon

35

Torts
CC
without the express permission of the defendant, and had he not picked up and
carried away the property of the defendant which he found on its premises, and had
he not thereafter deliberately cut open one of the caps and applied a match to its
contents.
But counsel for plaintiff contends that because of plaintiff's youth and inexperience,
his entry upon defendant company's premises, and the intervention of his action
between the negligent act of defendant in leaving the caps exposed on its premises
and the accident which resulted in his injury should not be held to have contributed
in any wise to the accident, which should be deemed to be the direct result of
defendant's negligence in leaving the caps exposed at the place where they were
found by the plaintiff, and this latter the proximate cause of the accident which
occasioned the injuries sustained by him.
In support of his contention, counsel for plaintiff relies on the doctrine laid down in
many of the courts of last resort in the United States in the cases known as the
"Torpedo" and "Turntable" cases, and the cases based thereon.
In a typical cases, the question involved has been whether a railroad company is
liable for an injury received by an infant of tender years, who from mere idle
curiosity, or for the purposes of amusement, enters upon the railroad company's
premises, at a place where the railroad company knew, or had good reason to
suppose, children would be likely to come, and there found explosive signal
torpedoes left unexposed by the railroad company's employees, one of which when
carried away by the visitor, exploded and injured him; or where such infant found
upon the premises a dangerous machine, such as a turntable, left in such condition
as to make it probable that children in playing with it would be exposed to accident
or injury therefrom and where the infant did in fact suffer injury in playing with such
machine.
In these, and in great variety of similar cases, the great weight of authority holds the
owner of the premises liable.
As laid down in Railroad Co. vs. Stout (17 Wall. (84 U. S.), 657), wherein the principal
question was whether a railroad company was liable for in injury received by an
infant while upon its premises, from idle curiosity, or for purposes of amusement, if
such injury was, under circumstances, attributable to the negligence of the
company), the principles on which these cases turn are that "while a railroad
company is not bound to the same degree of care in regard to mere strangers who
are unlawfully upon its premises that it owes to passengers conveyed by it, it is not
exempt from responsibility to such strangers for injuries arising from its negligence
or from its tortious acts;" and that "the conduct of an infant of tender years is not to
be judged by the same rule which governs that of adult. While it is the general rule
in regard to an adult that to entitle him to recover damages for an injury resulting
from the fault or negligence of another he must himself have been free from fault,
such is not the rule in regard to an infant of tender years. The care and caution
required of a child is according to his maturity and capacity only, and this is to be
determined in each case by the circumstances of the case."

Art 2176
The doctrine of the case of Railroad Company vs. Stout was vigorously controverted
and sharply criticized in several state courts, and the supreme court of Michigan in
the case of Ryan vs. Towar (128 Mich., 463) formally repudiated and disapproved the
doctrine of the Turntable cases, especially that laid down in Railroad Company vs.
Stout, in a very able decision wherein it held, in the language of the syllabus: (1)
That the owner of the land is not liable to trespassers thereon for injuries sustained
by them, not due to his wanton or willful acts; (2) that no exception to this rule
exists in favor of children who are injured by dangerous machinery naturally
calculated to attract them to the premises; (3) that an invitation or license to cross
the premises of another can not be predicated on the mere fact that no steps have
been taken to interfere with such practice; (4) that there is no difference between
children and adults as to the circumstances that will warrant the inference of an
invitation or a license to enter upon another's premises.
Similar criticisms of the opinion in the case of Railroad Company vs. Stout were
indulged in by the courts in Connecticut and Massachusetts. (Nolan vs. Railroad Co.,
53 Conn., 461; 154 Mass., 349). And the doctrine has been questioned in Wisconsin,
Pennsylvania, New Hampshire, and perhaps in other States.
On the other hand, many if not most of the courts of last resort in the United States,
citing and approving the doctrine laid down in England in the leading case of Lynch
vs. Nurding (1 Q. B., 29, 35, 36), lay down the rule in these cases in accord with that
announced in the Railroad Company vs. Stout (supra), and the Supreme Court of the
United States, in a unanimous opinion delivered by Justice Harlan in the case
of Union Pacific Railway Co. vs. McDonal and reconsidered the doctrine laid down in
Railroad Co. vs. Stout, and after an exhaustive and critical analysis and review of
many of the adjudged cases, both English and American, formally declared that it
adhered "to the principles announced in the case of Railroad Co. vs. Stout."
In the case of Union Pacific Railway Co. vs. MacDonald (supra) the facts were as
follows: The plaintiff, a boy 12 years of age, out of curiosity and for his own pleasure,
entered upon and visited the defendant's premises, without defendant's express
permission or invitation, and while there, was by accident injured by falling into a
burning slack pile of whose existence he had no knowledge, but which had been left
by defendant on its premises without any fence around it or anything to give
warning of its dangerous condition, although defendant knew or had reason the
interest or curiosity of passers-by. On these facts the court held that the plaintiff
could not be regarded as a mere trespasser, for whose safety and protection while
on the premises in question, against the unseen danger referred to, the defendant
was under no obligation to make provision.
We quote at length from the discussion by the court of the application of the
principles involved to the facts in that case, because what is said there is strikingly
applicable in the case at bar, and would seem to dispose of defendant's contention
that, the plaintiff in this case being a trespasser, the defendant company owed him
no duty, and in no case could be held liable for injuries which would not have
resulted but for the entry of plaintiff on defendant's premises.

36

Torts
CC

Art 2176
We adhere to the principles announced in Railroad Co. vs. Stout (supra).
Applied to the case now before us, they require us to hold that the
defendant was guilty of negligence in leaving unguarded the slack pile,
made by it in the vicinity of its depot building. It could have forbidden all
persons from coming to its coal mine for purposes merely of curiosity and
pleasure. But it did not do so. On the contrary, it permitted all, without
regard to age, to visit its mine, and witness its operation. It knew that the
usual approach to the mine was by a narrow path skirting its slack pit, close
to its depot building, at which the people of the village, old and young,
would often assemble. It knew that children were in the habit of frequenting
that locality and playing around the shaft house in the immediate vicinity of
the slack pit. The slightest regard for the safety of these children would
have suggested that they were in danger from being so near a pit, beneath
the surface of which was concealed (except when snow, wind, or rain
prevailed) a mass of burning coals into which a child might accidentally fall
and be burned to death. Under all the circumstances, the railroad company
ought not to be heard to say that the plaintiff, a mere lad, moved by
curiosity to see the mine, in the vicinity of the slack pit, was a trespasser,
to whom it owed no duty, or for whose protection it was under no obligation
to make provisions.
In Townsend vs. Wathen (9 East, 277, 281) it was held that if a man
dangerous traps, baited with flesh, in his own ground, so near to a highway,
or to the premises of another, that dogs passing along the highway, or kept
in his neighbors premises, would probably be attracted by their instinct into
the traps, and in consequence of such act his neighbor's dogs be so
attracted and thereby injured, an action on the case would lie. "What
difference," said Lord Ellenborough, C.J., "is there in reason between
drawing the animal into the trap by means of his instinct which he can not
resist, and putting him there by manual force?" What difference, in reason
we may observe in this case, is there between an express license to the
children of this village to visit the defendant's coal mine, in the vicinity of
its slack pile, and an implied license, resulting from the habit of the
defendant to permit them, without objection or warning, to do so at will, for
purposes of curiosity or pleasure? Referring it the case of Townsend vs.
Wathen, Judge Thompson, in his work on the Law of Negligence, volume 1,
page 305, note, well says: "It would be a barbarous rule of law that would
make the owner of land liable for setting a trap thereon, baited with
stinking meat, so that his neighbor's dog attracted by his natural instinct,
might run into it and be killed, and which would exempt him from liability
for the consequence of leaving exposed and unguarded on his land a
dangerous machine, so that his neighbor's child attracted to it and tempted
to intermeddle with it by instincts equally strong, might thereby be killed or
maimed for life."

Chief Justice Cooley, voicing the opinion of the supreme court of Michigan, in the
case of Powers vs. Harlow (53 Mich., 507), said that (p. 515):
Children, wherever they go, must be expected to act upon childlike instincts
and impulses; and others who are chargeable with a duty of care and

caution toward them must calculate upon this, and take precautions
accordingly. If they leave exposed to the observation of children anything
which would be tempting to them, and which they in their immature
judgment might naturally suppose they were at liberty to handle or play
with, they should expect that liberty to be taken.
And the same eminent jurist in his treatise or torts, alluding to the doctrine of
implied invitation to visit the premises of another, says:
In the case of young children, and other persons not fully sui juris, an
implied license might sometimes arise when it would not on behalf of
others. Thus leaving a tempting thing for children to play with exposed,
where they would be likely to gather for that purpose, may be equivalent to
an invitation to them to make use of it; and, perhaps, if one were to throw
away upon his premises, near the common way, things tempting to
children, the same implication should arise. (Chap. 10, p. 303.)
The reasoning which led the Supreme Court of the United States to its conclusion in
the cases of Railroad Co. vs. Stout (supra) and Union Pacific Railroad Co. vs.
McDonald (supra) is not less cogent and convincing in this jurisdiction than in that
wherein those cases originated. Children here are actuated by similar childish
instincts and impulses. Drawn by curiosity and impelled by the restless spirit of
youth, boys here as well as there will usually be found whenever the public is
permitted to congregate. The movement of machinery, and indeed anything which
arouses the attention of the young and inquiring mind, will draw them to the
neighborhood as inevitably as does the magnet draw the iron which comes within
the range of its magnetic influence. The owners of premises, therefore, whereon
things attractive to children are exposed, or upon which the public are expressly or
impliedly permitted to enter or upon which the owner knows or ought to know
children are likely to roam about for pastime and in play, " must calculate upon this,
and take precautions accordingly." In such cases the owner of the premises can not
be heard to say that because the child has entered upon his premises without his
express permission he is a trespasser to whom the owner owes no duty or obligation
whatever. The owner's failure to take reasonable precautions to prevent the child
from entering his premises at a place where he knows or ought to know that children
are accustomed to roam about of to which their childish instincts and impulses are
likely to attract them is at least equivalent to an implied license to enter, and where
the child does enter under such conditions the owner's failure to take reasonable
precautions to guard the child against injury from unknown or unseen dangers,
placed upon such premises by the owner, is clearly a breach of duty, responsible, if
the child is actually injured, without other fault on its part than that it had entered
on the premises of a stranger without his express invitation or permission. To hold
otherwise would be expose all the children in the community to unknown perils and
unnecessary danger at the whim of the owners or occupants of land upon which
they might naturally and reasonably be expected to enter.
This conclusion is founded on reason, justice, and necessity, and neither is
contention that a man has a right to do what will with his own property or that
children should be kept under the care of their parents or guardians, so as to

37

Torts
CC
prevent their entering on the premises of others is of sufficient weight to put in
doubt. In this jurisdiction as well as in the United States all private property is
acquired and held under the tacit condition that it shall not be so used as to injure
the equal rights and interests of the community (see U. S. vs. Toribio,1 No. 5060,
decided January 26, 1910), and except as to infants of very tender years it would be
absurd and unreasonable in a community organized as is that in which we lived to
hold that parents or guardian are guilty of negligence or imprudence in every case
wherein they permit growing boys and girls to leave the parental roof unattended,
even if in the event of accident to the child the negligence of the parent could in any
event be imputed to the child so as to deprive it a right to recover in such cases a
point which we neither discuss nor decide.
But while we hold that the entry of the plaintiff upon defendant's property without
defendant's express invitation or permission would not have relieved defendant from
responsibility for injuries incurred there by plaintiff, without other fault on his part, if
such injury were attributable to the negligence of the defendant, we are of opinion
that under all the circumstances of this case the negligence of the defendant in
leaving the caps exposed on its premises was not the proximate cause of the injury
received by the plaintiff, which therefore was not, properly speaking, "attributable to
the negligence of the defendant," and, on the other hand, we are satisfied that
plaintiffs action in cutting open the detonating cap and putting match to its contents
was the proximate cause of the explosion and of the resultant injuries inflicted upon
the plaintiff, and that the defendant, therefore is not civilly responsible for the
injuries thus incurred.
Plaintiff contends, upon the authority of the Turntable and Torpedo cases, that
because of plaintiff's youth the intervention of his action between the negligent act
of the defendant in leaving the caps exposed on its premises and the explosion
which resulted in his injury should not be held to have contributed in any wise to the
accident; and it is because we can not agree with this proposition, although we
accept the doctrine of the Turntable and Torpedo cases, that we have thought proper
to discuss and to consider that doctrine at length in this decision. As was said in
case of Railroad Co. vs. Stout (supra), "While it is the general rule in regard to an
adult that to entitle him to recover damages for an injury resulting from the fault or
negligence of another he must himself have been free from fault, such is not the
rule in regard to an infant of tender years. The care and caution required of a child is
according to his maturity and capacity only, and this is to be determined in each
case by the circumstances of the case." As we think we have shown, under the
reasoning on which rests the doctrine of the Turntable and Torpedo cases, no fault
which would relieve defendant of responsibility for injuries resulting from its
negligence can be attributed to the plaintiff, a well-grown boy of 15 years of age,
because of his entry upon defendant's uninclosed premises without express
permission or invitation' but it is wholly different question whether such youth can
be said to have been free from fault when he willfully and deliberately cut open the
detonating cap, and placed a match to the contents, knowing, as he undoubtedly
did, that his action would result in an explosion. On this point, which must be
determined by "the particular circumstances of this case," the doctrine laid down in
the Turntable and Torpedo cases lends us no direct aid, although it is worthy of
observation that in all of the "Torpedo" and analogous cases which our attention has
been directed, the record discloses that the plaintiffs, in whose favor judgments

Art 2176
have been affirmed, were of such tender years that they were held not to have the
capacity to understand the nature or character of the explosive instruments which
fell into their hands.
In the case at bar, plaintiff at the time of the accident was a well-grown youth of 15,
more mature both mentally and physically than the average boy of his age; he had
been to sea as a cabin boy; was able to earn P2.50 a day as a mechanical draftsman
thirty days after the injury was incurred; and the record discloses throughout that he
was exceptionally well qualified to take care of himself. The evidence of record
leaves no room for doubt that, despite his denials on the witness stand, he well
knew the explosive character of the cap with which he was amusing himself. The
series of experiments made by him in his attempt to produce an explosion, as
described by the little girl who was present, admit of no other explanation. His
attempt to discharge the cap by the use of electricity, followed by his efforts to
explode it with a stone or a hammer, and the final success of his endeavors brought
about by the application of a match to the contents of the caps, show clearly that he
knew what he was about. Nor can there be any reasonable doubt that he had reason
to anticipate that the explosion might be dangerous, in view of the fact that the little
girl, 9 years of age, who was within him at the time when he put the match to the
contents of the cap, became frightened and ran away.
True, he may not have known and probably did not know the precise nature of the
explosion which might be expected from the ignition of the contents of the cap, and
of course he did not anticipate the resultant injuries which he incurred; but he well
knew that a more or less dangerous explosion might be expected from his act, and
yet he willfully, recklessly, and knowingly produced the explosion. It would be going
far to say that "according to his maturity and capacity" he exercised such and "care
and caution" as might reasonably be required of him, or that defendant or anyone
else should be held civilly responsible for injuries incurred by him under such
circumstances.
The law fixes no arbitrary age at which a minor can be said to have the necessary
capacity to understand and appreciate the nature and consequences of his own
acts, so as to make it negligence on his part to fail to exercise due care and
precaution in the commission of such acts; and indeed it would be impracticable and
perhaps impossible so to do, for in the very nature of things the question of
negligence necessarily depends on the ability of the minor to understand the
character of his own acts and their consequences; and the age at which a minor can
be said to have such ability will necessarily depends of his own acts and their
consequences; and at the age at which a minor can be said to have such ability will
necessarily vary in accordance with the varying nature of the infinite variety of acts
which may be done by him. But some idea of the presumed capacity of infants
under the laws in force in these Islands may be gathered from an examination of the
varying ages fixed by our laws at which minors are conclusively presumed to be
capable of exercising certain rights and incurring certain responsibilities, though it
can not be said that these provisions of law are of much practical assistance in cases
such as that at bar, except so far as they illustrate the rule that the capacity of a
minor to become responsible for his own acts varies with the varying circumstances
of each case. Under the provisions of the Penal Code a minor over fifteen years of
age is presumed to be capable of committing a crime and is to held criminally

38

Torts
CC

Art 2176

responsible therefore, although the fact that he is less than eighteen years of age
will be taken into consideration as an extenuating circumstance (Penal Code, arts. 8
and 9). At 10 years of age a child may, under certain circumstances, choose which
parent it prefers to live with (Code of Civil Procedure, sec. 771). At 14 may petition
for the appointment of a guardian (Id., sec. 551), and may consent or refuse to be
adopted (Id., sec. 765). And males of 14 and females of 12 are capable of
contracting a legal marriage (Civil Code, art. 83; G. O., No. 68, sec. 1).
We are satisfied that the plaintiff in this case had sufficient capacity and
understanding to be sensible of the danger to which he exposed himself when he
put the match to the contents of the cap; that he was sui juris in the sense that his
age and his experience qualified him to understand and appreciate the necessity for
the exercise of that degree of caution which would have avoided the injury which
resulted from his own deliberate act; and that the injury incurred by him must be
held to have been the direct and immediate result of his own willful and reckless act,
so that while it may be true that these injuries would not have been incurred but for
the negligence act of the defendant in leaving the caps exposed on its premises,
nevertheless plaintiff's own act was the proximate and principal cause of the
accident which inflicted the injury.
The rule of the Roman law was: Quod quis ex culpa sua damnum sentit, non
intelligitur sentire. (Digest, book 50, tit. 17 rule 203.)
The Patidas contain the following provisions:
The just thing is that a man should suffer the damage which comes to him
through his own fault, and that he can not demand reparation therefor from
another. (Law 25, tit. 5, Partida 3.)
And they even said that when a man received an injury through his own
acts the grievance should be against himself and not against another. (Law
2, tit. 7, Partida 2.)
According to ancient sages, when a man received an injury through his own
acts the grievance should be against himself and not against another. (Law
2, tit. 7 Partida 2.)
And while there does not appear to be anything in the Civil Code which expressly
lays down the law touching contributory negligence in this jurisdiction, nevertheless,
the interpretation placed upon its provisions by the supreme court of Spain, and by
this court in the case of Rakes vs. Atlantic, Gulf and Pacific Co. (7 Phil. Rep., 359),
clearly deny to the plaintiff in the case at bar the right to recover damages from the
defendant, in whole or in part, for the injuries sustained by him.
The judgment of the supreme court of Spain of the 7th of March, 1902
(93 Jurisprudencia Civil, 391), is directly in point. In that case the court said:

According to the doctrine expressed in article 1902 of the Civil Code, fault
or negligence is a source of obligation when between such negligence and
the injury there exists the relation of cause and effect; but if the injury
produced should not be the result of acts or omissions of a third party, the
latter has no obligation to repair the same, although such acts or omission
were imprudent or unlawful, and much less when it is shown that the
immediate cause of the injury was the negligence of the injured party
himself.
The same court, in its decision of June 12, 1900, said that "the existence of the
alleged fault or negligence is not sufficient without proof that it, and no other cause,
gave rise to the damage."
See also judgment of October 21, 1903.
To similar effect Scaevola, the learned Spanish writer, writing under that
title in his Jurisprudencia del Codigo Civil (1902 Anuario, p. 455),
commenting on the decision of March 7, 1902 of the Civil Code, fault or
negligence gives rise to an obligation when between it and the damage
there exists the relation of cause and effect; but if the damage caused does
not arise from the acts or omissions of a third person, there is no obligation
to make good upon the latter, even though such acts or omissions be
imprudent or illegal, and much less so when it is shown that the immediate
cause of the damage has been the recklessness of the injured party
himself.
And again
In accordance with the fundamental principle of proof, that the burden
thereof is upon the plaintiff, it is apparent that it is duty of him who shall
claim damages to establish their existence. The decisions of April 9, 1896,
and March 18, July, and September 27, 1898, have especially supported the
principle, the first setting forth in detail the necessary points of the proof,
which are two: An act or omission on the part of the person who is to be
charged with the liability, and the production of the damage by said act or
omission.
This includes, by inference, the establishment of a relation of cause or
effect between the act or omission and the damage; the latter must be the
direct result of one of the first two. As the decision of March 22, 1881, said,
it is necessary that the damages result immediately and directly from an
act performed culpably and wrongfully; "necessarily presupposing a legal
ground for imputability." (Decision of October 29, 1887.)
Negligence is not presumed, but must be proven by him who alleges it.
(Scavoela, Jurisprudencia del Codigo Civil, vol. 6, pp. 551-552.)

39

Torts
CC

Art 2176

(Cf. decisions of supreme court of Spain of June 12, 1900, and June 23, 1900.)
Finally we think the doctrine in this jurisdiction applicable to the case at bar was
definitely settled in this court in the maturely considered case of Rakes vs. Atlantic,
Gulf and Pacific Co. (supra), wherein we held that while "There are many cases
(personal injury cases) was exonerated," on the ground that "the negligence of the
plaintiff was the immediate cause of the casualty" (decisions of the 15th of January,
the 19th of February, and the 7th of March, 1902, stated in Alcubilla's Index of that
year); none of the cases decided by the supreme court of Spain "define the effect to
be given the negligence of its causes, though not the principal one, and we are left
to seek the theory of the civil law in the practice of other countries;" and in such
cases we declared that law in this jurisdiction to require the application of "the
principle of proportional damages," but expressly and definitely denied the right of
recovery when the acts of the injured party were the immediate causes of the
accident.

years would have no effect in relieving defendant of responsibility, but whether in

view of the well-known fact admitted in defendant's brief that "boys are snappers-up
of unconsidered trifles," a youth of the age and maturity of plaintiff should be
deemed without fault in picking up the caps in question under all the circumstances
of this case, we neither discuss nor decide.
Twenty days after the date of this decision let judgment be entered reversing the
judgment of the court below, without costs to either party in this instance, and ten
days thereafter let the record be returned to the court wherein it originated, where
the judgment will be entered in favor of the defendant for the costs in first instance
and the complaint dismissed without day. So ordered.

The doctrine as laid down in that case is as follows:

Difficulty seems to be apprehended in deciding which acts of the injured
party shall be considered immediate causes of the accident. The test is
simple. Distinction must be made between the accident and the injury,
between the event itself, without which there could have been no accident,
and those acts of the victim not entering into it, independent of it, but
contributing to his own proper hurt. For instance, the cause of the accident
under review was the displacement of the crosspiece or the failure to
replace it. This produces the event giving occasion for damagesthat is,
the sinking of the track and the sliding of the iron rails. To this event, the
act of the plaintiff in walking by the side of the car did not contribute,
although it was an element of the damage which came to himself. Had the
crosspiece been out of place wholly or partly through his act or omission of
duty, that would have been one of the determining causes of the event or
accident, for which he would have been responsible. Where he contributes
to the principal occurrence, as one of its determining factors, he can not
recover. Where, in conjunction with the occurrence, he contributes only to
his own injury, he may recover the amount that the defendant responsible
for the event should pay for such injury, less a sum deemed a suitable
equivalent for his own imprudence.
We think it is quite clear that under the doctrine thus stated, the immediate cause of
the explosion, the accident which resulted in plaintiff's injury, was in his own act in
putting a match to the contents of the cap, and that having "contributed to the
principal occurrence, as one of its determining factors, he can not recover."
We have not deemed it necessary to examine the effect of plaintiff's action in
picking up upon defendant's premises the detonating caps, the property of
defendant, and carrying the relation of cause and effect between the negligent act
or omission of the defendant in leaving the caps exposed on its premises and the
injuries inflicted upon the plaintiff by the explosion of one of these caps. Under the
doctrine of the Torpedo cases, such action on the part of an infant of very tender

G.R. No. 101983 February 1, 1993

HONORIO BULAO, petitioner, vs. COURT OF APPEALS, RTC JUDGE FRANCISCO
VILLARTA and SANTIAGO BELLEZA, respondents.
CRUZ, J.:
On April 25, 1983. respondent Santiago Belleza filed before the Municipal Circuit Trial
Court of Tayum, Pearrubia, Abra, 1 a complaint against petitioner Honorio Bulao. It
was docketed as "Civil Case No. 70-Damages." The petitioner moved to dismiss the
same on the ground of lack of jurisdiction. He argued that the said case was
cognizable by the Regional Trial Court, the real issue being one of ownership,
possession of the land where the ditches are located, and real rights involving the
use of ditches. The court denied the motion and required him to answer the
complaint.
The Petitioner failed to do so and was declared in default. He then moved for
reconsideration and the lifting of the order of default. This time he claimed that it
was the National Water Resources Council that had jurisdiction over the case
because it involved rights on the utilization of water. The motion was also denied,
and the court proceeded to receive the evidence of the private respondent.
On October 4, 1984, the court handed down a judgment by default ordering the
petitioner to pay the following amounts in favor of the private respondent, plus the
costs:

40

Torts
CC

Art 2176
1. P6,000.00 representing the unrealized harvest of the private
respondent on the land he was working on;

xxx xxx xxx

3.

That the above described parcels of land give a yearly double crop
yield in the amount of 75 cavans of clean rice for each cropping season
because of the presence of an irrigation system which has existed for
more than 50 years already;

4.

That defendant's property is located on a higher elevation in the

vicinity of the above parcels and irrigation ditch which supplies water
to the above parcels must pass by the land of the defendant before it
reaches the lands of plaintiff as above-described;

5.

That sometime during the first week of December, 1982, defendant

Bulao maliciously constructed a dam and diverted the flow of the water
towards the west such that the lands of the plaintiff dried up and the
rice plants withered and died;

6.

That plaintiff used to harvest from the land above described 75 cavans
of clean rice for every cropping season and he used to sell his rice at
P6.00 a ganta or P150.00 a cavan;

7.

That for the 75 cavans of rice which plaintiff failed to realize because of
the malicious acts of the defendant, plaintiff failed to realize 75 cavans
of clean rice or P11,250.00 by way of damages;

8.

That because of the malicious acts of the defendant, plaintiff had to

engage the services of counsel to protect his interest paying the
amount of P2,000.00;

2. P2,625.00 representing his unrealized share from the harvest of

his tenant; and
3. P2,000.00 representing attorney's fees.
The petitioner did not appeal the decision and the corresponding writ of execution
was issued in due time. He moved to quash the writ but to no avail.
On March 25, 1985, the petitioner lodged before the Regional Trial Court of Abra
Branch I, 2 a petition for relief from judgment/order in Civil Case 70. This was
dismissed on the ground that the petitioner neither filed his answer to the complaint
nor later availed himself of his right to appeal from the judgment. His motion for
reconsideration was denied.
The petitioner next came to this Court to seek certiorari with preliminary injunction.
His petition was referred to the Court of Appeals for consideration and adjudication
on the merits. On July 5, 1991, the respondent court promulgated a decision denying
the petition. 3 His motion for reconsideration having been likewise denied, the case is
now before us for review.
The basic issue before us is the question of jurisdiction.
To resolve this, we have to determine first the true nature of the action filed with the
court a quo. This can be ascertained from the ultimate facts averred in the
complaint as constituting the private respondent's cause of action. The settled
principle is that the allegations of the complaint determine the nature of the action
and consequently the jurisdiction of the courts. 4 This rule applies whether or not the
plaintiff is entitled to recover upon all or some of the claims asserted therein as this
is a matter that can be resolved only after and as a result of the trial. 5
The complaint in Civil Case No. 70 is quoted as follows:
COMES undersigned counsel for the plaintiff and before this Honorable
Court respectfully alleges:
1.

2.

That plaintiff is a Filipino Citizen, of legal age, married, resident of

Lusuac, Pearrubia. Abra, while defendant is also a Filipino citizen, of
legal age, married and a resident of Lusuac, Pearruba, Abra, where he
may be served with summons;

WHEREFORE, it is respectfully prayed that after hearing, judgment be

rendered ordering the defendant
(a) To allow the water to flow unhampered to plaintiff's properties
as described in paragraph 2 hereof;
(b) To order defendant to pay damages to the plaintiff in the
amount of P11,250.00 representing the value of the crops
which plaintiff failed to realize;
(c) To pay attorney's fees in the amount of P2,000.00; and
(d) Such other and further reliefs as this Honorable Court may
deem just and equitable in the premises.

That the plaintiff is the owner of four parcels of land more particularly
described as follows, to wit:

41

Torts
CC

Art 2176

The petitioner submits that the allegations in paragraphs 4 and 5 as well as the
prayer in paragraph (a) of the above-quoted pleading show that the Civil Case 70
involves water and water rights and is thus a water dispute. The proper authority to
try and decide the case is the National Water Resources Council pursuant to Article
88 of Presidential Decree 1067 providing as follows:
Art. 88. The council shall have original jurisdiction over all disputes
relating to appropriation, utilization, exploitation, development,
control, conservation and protection of waters within the meaning
and context of the provision of this Code
The petitioner invokes in this connection
Manta 6 and Tanjay Water District vs. Gabaton. 7

the

cases

of Abe-abe

vs.

In the first case, the petitioners sought a judicial confirmation of their prior vested
right under Article 504 of the Civil Code to use the water of Anibungan Albay and
Tajong Creeks to irrigate their ricelands upstrean. They also wanted to enjoin the
private respondent from using the water of the creeks at night to irrigate his riceland
located downstream.
In the second case, the court was asked to prevent the Municipality of Pamplona
from interfering with the management of the Tanjay Waterworks System.
It was held in both cases that jurisdiction pertained to the National Water Resources
Council as the issues involved were the appropriation, utilization and control of
water.
But these cases have no application to the instant controversy. It is clear from a
reading of the private respondent's complaint in Civil Case 70 that it is an action for
damages predicated on a quasi-delict.
A quasi-delict has the following elements: a) the damage suffered by the plaintiff; b)
the act or omission of the defendant supposedly constituting fault or negligence;
and c) the causal connection between the act and the damage sustained by the
plaintiff. 8
All these elements are set out in the private respondent's complaint, specifically in
paragraphs 5, 7 and 8 thereof. The damage claimed to have been sustained by
private respondents consists of his loss of harvest and consequent loss of income.
The act constituting the fault is the alleged malicious construction of a dam and
diversion of the flow of water by the petitioner. The said acts allegedly caused the
interruption of water passing through petitioner's land towards respondent's lands,
resulting in the destruction of the respondent's rice plants. The averments of the
complaint plainly make out a case of quasi-delict that may be the basis of an action
for damages.

The Court also notes that the title of the complaint is "Civil Case
No. 70 Damages." Although not necessarily determinative of the nature of the
action, it would nevertheless indicate that what the private respondent
contemplated was an action for damages.
It is pointed out, however, that paragraph (a) of the prayer for relief seems to
convey the impression that the private respondent is asking for the right to use the
irrigation water and for the recognition by the petitioner of an easement on his land.
Would this change the character of Civil Case 70?
We have consistently held that the allegations of fact set forth in the complaint and
not the prayer for relief will determine the nature of the action. 9 In the case of De
Tavera vs. Philippine Tuberculosis, Inc., 10 this Court declared:
While it is true that the complaint questions petitioner's removal
from the position of Executive Secretary and seeks her
reinstatement thereto, the nature of the suit is not necessarily one
of quo warranto. The nature of the instant suit is one involving a
violation of the rights of the plaintiff under the By-Laws of the
Society, the Civil Code and the Constitution, which allegedly
renders the individuals responsible therefore, accountable for
damages, as may be gleaned from the following allegations in the
complaint as constituting the plaintiff's causes of action.
Also worthy of note is the following pronouncement of this Court in Bagiuoro
vs. Barrios and Tupas Vda. de Atas:11
It is an axiom in civil procedure that if the relief demanded is not
the proper one which may be granted under the law, it does not
characterize or determine the nature of the plaintiff's action, and
that the relief to which the plaintiff is entitled based on the facts
alleged by him in his complaint, although it is not the relief
demanded, is what determines the nature of the action. And that
is the reason why it is generally added to prayers for relief, though
not necessary, the words "and for such other relief as the law
warrants," or others to the same effect. So if a plaintiff alleges, for
instance, that the defendant owes the former a certain amount of
money and did not pay it at the time stipulated, and prays that the
defendant be sentenced to return a certain personal property to
the plaintiff, such prayer will not make or convert the action of
recovery of debt into one of recovery of personal property, and the
court shall grant the proper relief, or sentence the defendant to
pay his debt to the plaintiff.
In any case, the injury has been done and that is what the private respondent was
suing about in his action for damages. The relief he prayed for did not change Civil
Case No. 70 into a water dispute coming under the jurisdiction of the National Water
Research Council.

42

Torts
CC

Art 2176

It follows that since the court a quo had jurisdiction over the action instituted by the
private respondent, its decision, which has already become final and executory, can
no longer be disturbed.
ACCORDINGLY, the petition is DENIED, with costs against the petitioner. It is so
ordered.

43