G.R. No.

L-48006

July 8, 1942

FAUSTO BARREDO, petitioner,

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

of a good father of a family in the selection and

supervision of Pedro Fontanilla to prevent damages
suffered by the respondents. In other words, The
Court of Appeals insists on applying in the case
article 1903 of the Civil Code. Article 1903 of the Civil
Code is found in Chapter II, Title 16, Book IV of the
Civil Code. This fact makes said article to a civil
liability arising from a crime as in the case at bar
simply because Chapter II of Title 16 of Book IV of the
Civil Code, in the precise words of article 1903 of the
Civil Code itself, is applicable only to "those
(obligations) arising from wrongful or negligent acts
or commission not punishable by law.
The gist of the decision of the Court of Appeals is expressed
thus:
... We cannot agree to the defendant's contention.
The liability sought to be imposed upon him in this
action is not a civil obligation arising from a felony or
a misdemeanor (the crime of Pedro Fontanilla,), but
an obligation imposed in article 1903 of the Civil
Code by reason of his negligence in the selection or
supervision of his servant or employee.
The pivotal question in this case is whether the plaintiffs may
bring this separate civil action against Fausto Barredo, thus
making him primarily and directly, responsible under article
1903 of the Civil Code as an employer of Pedro Fontanilla. The
defendant maintains that Fontanilla's negligence being
punishable by the Penal Code, his (defendant's) liability as an
employer is only subsidiary, according to said Penal code, but
Fontanilla has not been sued in a civil action and his property
has not been exhausted. To decide the main issue, we must
cut through the tangle that has, in the minds of many
confused and jumbled together delitos and cuasi delitos, or
crimes under the Penal Code and fault or negligence under
articles 1902-1910 of the Civil Code. This should be done,
because justice may be lost in a labyrinth, unless principles
and remedies are distinctly envisaged. Fortunately, we are
aided in our inquiry by the luminous presentation of the
perplexing subject by renown jurists and we are likewise
guided by the decisions of this Court in previous cases as well
as by the solemn clarity of the consideration in several
sentences of the Supreme Tribunal of Spain.
Authorities support the proposition that a quasi-delict or
"culpa aquiliana " is a separate legal institution under the Civil
Code with a substantivity all its own, and individuality that is
entirely apart and independent from delict or crime. Upon this
principle and on the wording and spirit article 1903 of the Civil
Code, the primary and direct responsibility of employers may
be safely anchored.
The pertinent provisions of the Civil Code and Revised Penal
Code are as follows:
CIVIL CODE
ART. 1089 Obligations arise from law, from contracts
and quasi-contracts, and from acts and omissions
which are unlawful or in which any kind of fault or
negligence intervenes.

xxx

xxx

xxx

ART. 1092. Civil obligations arising from felonies or

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

xxx

xxx

ART 1902. Any person who by an act or omission

causes damage to another by his fault or negligence
shall be liable for the damage so done.
ART. 1903. The obligation imposed by the next
preceding article is enforcible, not only for personal
acts and omissions, but also for those of persons for
whom another is responsible.
The father and in, case of his death or incapacity, the
mother, are liable for any damages caused by the
minor children who live with them.
Guardians are liable for damages done by minors or
incapacitated persons subject to their authority and
living with them.
Owners or directors of an establishment or business
are equally liable for any damages caused by their
employees while engaged in the branch of the
service in which employed, or on occasion of the
performance of their duties.
The State is subject to the same liability when it acts
through 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 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 extracontractual under articles 1902-1910 of the Civil Code.
The individuality of cuasi-delito or culpa extracontractual 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 cuasi-delito or culpa
extra-contractual: "los actos . . . en que intervenga cualquier
genero de culpa o negligencia." Then article 1093 provides
that this kind of obligation shall be governed by Chapter II of
Title XVI of Book IV, meaning articles 1902-0910. This portion
of the Civil Code is exclusively devoted to the legal institution
of culpa aquiliana.
Some of the differences between crimes under the Penal Code
and the culpa aquiliana or cuasi-delito under the Civil Code
are:
1. That crimes affect the public interest, while cuasidelitos are only of private concern.
2. That, consequently, the Penal Code punishes or corrects the
criminal act, while the Civil Code, by means of
indemnification, merely repairs the damage.
3. That delicts are not as broad as quasi-delicts, because the
former are punished only if there is a penal law clearly
covering them, while the latter, cuasi-delitos, include all acts
in which "any king of fault or negligence intervenes."
However, it should be noted that not all violations of the penal
law produce civil responsibility, such as begging in
contravention of ordinances, violation of the game laws,
infraction of the rules of traffic when nobody is hurt. (See
Colin and Capitant, "Curso Elemental de Derecho Civil," Vol. 3,
p. 728.)
Let us now ascertain what some jurists say on the separate
existence of quasi-delicts and the employer's primary and
direct liability under article 1903 of the Civil Code.
Dorado Montero in his essay on "Responsibilidad" in the
"Enciclopedia Juridica 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 another which is a necessary
consequence of the penal liability as a result of every
felony or misdemeanor."
Maura, an outstanding authority, was consulted on the
following case: There had been a collision between two trains
belonging respectively to the Ferrocarril Cantabrico and the
Ferrocarril del Norte. An employee of the latter had been
prosecuted in a criminal case, in which the company had been
made a party as subsidiarily responsible in civil damages. The
employee had been acquitted in the criminal case, and the
employer, the Ferrocarril del Norte, had also been exonerated.
The question asked was whether the Ferrocarril Cantabrico

could still bring a civil action for damages against the

Ferrocarril del Norte. Maura's opinion was in the affirmative,
stating in part (Maura,Dictamenes, Vol. 6, pp. 511-513):
Quedando las cosas asi, a proposito de la realidad
pura y neta de los hechos, todavia menos parece
sostenible que exista cosa juzgada acerca de la
obligacion civil de indemnizar los quebrantos y
menoscabos inferidos por el choque de los trenes. El
titulo en que se funda la accion para demandar el
resarcimiento, no puede confundirse con las
responsabilidades civiles nacidas de delito, siquiera
exista en este, sea el cual sea, una culpa rodeada de
notas agravatorias que motivan sanciones penales,
mas o menos severas. La lesion causada por delito o
falta en los derechos civiles, requiere restituciones,
reparaciones o indemnizaciones, que cual la pena
misma ataen al orden publico; por tal motivo vienen
encomendadas, de ordinario, al Ministerio Fiscal; y
claro es que si por esta via se enmiendan los
quebrantos y menoscabos, el agraviado excusa
procurar el ya conseguido desagravio; pero esta
eventual coincidencia de los efectos, no borra la
diversidad originaria de las acciones civiles para
pedir indemnizacion.
Estas, para el caso actual (prescindiendo de
culpas contractuales, que no vendrian a cuento y que
tiene otro regimen), dimanan, segun el articulo 1902
del Codigo Civil, de toda accion u omision, causante
de daos o perjuicios, en que intervenga culpa o
negligencia. Es trivial que acciones semejantes son
ejercitadas ante los Tribunales de lo civil
cotidianamente, sin que la Justicia punitiva tenga que
mezclarse en los asuntos. Los articulos 18 al 21 y
121 al 128 del Codigo Penal, atentos al espiritu y a
los fines sociales y politicos del mismo, desenvuelven
y ordenan la materia de responsabilidades
civiles nacidas de delito, en terminos separados del
regimen por ley comun de la culpa que se denomina
aquiliana, por alusion a precedentes legislativos
del Corpus Juris. Seria intempestivo un paralelo entre
aquellas ordenaciones, y la de la obligacion de
indemnizar a titulo de culpa civil; pero viene al caso
y es necesaria una de las diferenciaciones que en el
tal paralelo se notarian.
Los articulos 20 y 21 del Codigo Penal, despues de
distribuir a su modo las responsabilidades civiles,
entre los que sean por diversos conceptos culpables
del delito o falta, las hacen extensivas a las
empresas y los establecimientos al servicio de los
cuales estan los delincuentes; pero con caracter
subsidiario, o sea, segun el texto literal, en defecto
de los que sean responsables criminalmente. No
coincide en ello el Codigo Civil, cuyo articulo 1903,
dice; La obligacion que impone el articulo anterior es
exigible, no solo por los actos y omisiones
propios, sino por los de aquellas personas de quienes
se debe responder; personas en la enumeracion de
las cuales figuran los dependientes y empleados de
los establecimientos o empresas, sea por actos del
servicio, sea con ocasion de sus funciones. Por esto
acontece, y se observa en la jurisprudencia, que las
empresas, despues de intervenir en las causas
criminales con el caracter subsidiario de su

responsabilidad civil por razon del delito, son

demandadas y condenadas directa y aisladamente,
cuando se trata de la obligacion, ante los tribunales
civiles.
Siendo como se ve, diverso el titulo de esta
obligacion, y formando verdadero postulado de
nuestro regimen judicial la separacion entre justicia
punitiva y tribunales de lo civil, de suerte que tienen
unos y otros normas de fondo en distintos cuerpos
legales, y diferentes modos de proceder, habiendose,
por aadidura, abstenido de asistir al juicio criminal
la Compaia del Ferrocarril Cantabrico, que se
reservo ejercitar sus acciones, parece innegable que
la de indemnizacion por los daos y perjuicios que le
irrogo el choque, no estuvo sub judice ante el
Tribunal del Jurado, ni fue sentenciada, sino que
permanecio intacta, al pronunciarse el fallo de 21 de
marzo. Aun cuando el veredicto no hubiese sido de
inculpabilidad, mostrose mas arriba, que tal accion
quedaba legitimamente reservada para despues del
proceso; pero al declararse que no existio delito, ni
responsabilidad dimanada de delito,
materia unica sobre que tenian jurisdiccion aquellos
juzgadores, se redobla el motivo para la obligacion
civil ex lege, y se patentiza mas y mas que la accion
para pedir su cumplimiento permanece incolume,
extraa a la cosa juzgada.
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 culpa surrounded with aggravating aspects which
give rise to penal measures that are more or less
severe. The injury caused by a felony or
misdemeanor upon civil rights requires restitutions,
reparations, or indemnifications which, like the
penalty itself, affect public order; for this reason,
they are ordinarily entrusted to the office of the
prosecuting attorney; and it is clear that if by this
means the losses and damages are repaired, the
injured party no longer desires to seek another relief;
but this coincidence of effects does not eliminate the
peculiar nature of civil actions to ask for indemnity.
Such civil actions in the present case (without
referring to contractual faults which are not pertinent
and belong to another scope) are derived, according
to article 1902 of the Civil Code, from every act or
omission causing losses and damages in which culpa
or negligence intervenes. It is unimportant that such
actions are every day filed before the civil courts
without the criminal courts interfering therewith.
Articles 18 to 21 and 121 to 128 of the Penal Code,
bearing in mind the spirit and the social and political
purposes of that Code, develop and regulate the
matter of civil responsibilities arising from a crime,
separately from the regime under common law,
of culpa which is known as aquiliana, in accordance
with legislative precedent of the Corpus Juris. It
would be unwarranted to make a detailed

comparison between the former provisions and that

regarding the obligation to indemnify on account of
civil culpa; but it is pertinent and necessary to point
out to one of such differences.
Articles 20 and 21 of the Penal Code, after
distriburing in their own way the civil responsibilities
among those who, for different reasons, are guilty of
felony or misdemeanor, make such civil
responsibilities applicable to enterprises and
establishments for which the guilty parties render
service, but with subsidiary character, that is to say,
according to the wording of the Penal Code, in
default of those who are criminally responsible. In
this regard, the Civil Code does not coincide because
article 1903 says: "The obligation imposed by the
next preceding article is demandable, not only for
personal acts and omissions, but also for those of
persons for whom another is responsible." Among the
persons enumerated are the subordinates and
employees of establishments or enterprises, either
for acts during their service or on the occasion of
their functions. It is for this reason that it happens,
and it is so observed in judicial decisions, that the
companies or enterprises, after taking part in the
criminal cases because of their subsidiary civil
responsibility by reason of the crime, are sued and
sentenced directly and separately with regard to
the obligation, before the civil courts.
Seeing that the title of this obligation is different, and
the separation between punitive justice and the civil
courts being a true postulate of our judicial system,
so that they have different fundamental norms in
different codes, as well as different modes of
procedure, and inasmuch as the 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 Jurado had jurisdiction, there is
greater reason for the civil obligation ex lege, and it
becomes clearer that the action for its enforcement
remain intact and is not res judicata.
Laurent, a jurist who has written a monumental work on the
French Civil Code, on which the Spanish Civil Code is largely
based and whose provisions on cuasi-delito or culpa extracontractual are similar to those of the Spanish Civil Code,
says, referring to article 1384 of the French Civil Code which
corresponds to article 1903, Spanish Civil Code:
The action can be brought directly against the person
responsible (for another), without including the
author of the act. The action against the principal is

accessory in the sense that it implies the existence of

a prejudicial act committed by the employee, but it is
not subsidiary in the sense that it can not be
instituted till after the judgment against the author of
the act or at least, that it is subsidiary to the
principal action; the action for responsibility (of the
employer) is in itself a principal action. (Laurent,
Principles of French Civil Law, Spanish translation,
Vol. 20, pp. 734-735.)
Amandi, in his "Cuestionario del Codigo Civil Reformado" (Vol.
4, pp. 429, 430), declares that the responsibility of the
employer is principal and not subsidiary. He writes:
Cuestion 1. La responsabilidad declarada en el
articulo 1903 por las acciones u omisiones de
aquellas personas por las que se debe responder, es
subsidiaria? es principal? Para contestar a esta
pregunta es necesario saber, en primer lugar, en que
se funda el precepto legal. Es que realmente se
impone una responsabilidad por una falta ajena? Asi
parece a primera vista; pero semejante afirmacion
seria contraria a la justicia y a la maxima universal,
segun la que las faltas son personales, y cada uno
responde de aquellas que le son imputables. La
responsabilidad de que tratamos se impone con
ocasion de un delito o culpa, pero no por causa de
ellos, sino por causa del causi delito, esto es, de la
imprudencia o de la negligencia del padre, del tutor,
del dueo o director del establecimiento, del
maestro, etc. Cuando cualquiera de las personas que
enumera el articulo citado (menores de edad,
incapacitados, dependientes, aprendices) causan un
dao, la ley presume que el padre, el tutor, el
maestro, etc., han cometido una falta de negligencia
para prevenir o evitar el dao. Esta falta es la que la
ley castiga. No hay, pues, responsabilidad por un
hecho ajeno, sino en la apariencia; en realidad la
responsabilidad se exige por un hecho propio. La
idea de que esa responsabilidad sea subsidiaria es,
por lo tanto, completamente inadmisible.
Question No. 1. Is the responsibility declared in
article 1903 for the acts or omissions of those
persons for who one is responsible, subsidiary or
principal? In order to answer this question it is
necessary to know, in the first place, on what the
legal provision is based. Is it true that there is a
responsibility for the fault of another person? It
seems so at first sight; but such assertion would be
contrary to justice and to the universal maxim that
all faults are personal, and that everyone is liable for
those faults that can be imputed to him. The
responsibility in question is imposed on the occasion
of a crime or fault, but not because of the same, but
because of the cuasi-delito, that is to say, the
imprudence or negligence of the father, guardian,
proprietor or manager of the establishment, of the
teacher, etc. Whenever anyone of the persons
enumerated in the article referred to (minors,
incapacitated persons, employees, apprentices)
causes any damage, the law presumes that the
father, guardian, teacher, etc. have committed an
act of negligence in not preventing or avoiding the
damage. It is this fault that is condemned by the law.
It is, therefore, only apparent that there is a

responsibility for the act of another; in reality the

responsibility exacted is for one's own act. The idea
that such responsibility is subsidiary is, therefore,
completely inadmissible.
Oyuelos, in his "Digesto: Principios, Doctrina y Jurisprudencia,
Referentes al Codigo Civil Espaol," says in Vol. VII, p. 743:
Es decir, no responde de hechos ajenos, porque se
responde solo de su propia culpa, doctrina del
articulo 1902; mas por excepcion, se responde de la
ajena respecto de aquellas personas con las que
media algun nexo o vinculo, que motiva o razona la
responsabilidad. Esta responsabilidad, es directa o es
subsidiaria? En el orden penal, el Codigo de esta
clase distingue entre menores e incapacitados y los
demas, declarando directa la primera (articulo 19) y
subsidiaria la segunda (articulos 20 y 21); pero en el
orden civil, en el caso del articulo 1903, ha de
entenderse directa, por el tenor del articulo que
impone la responsabilidad precisamente "por los
actos de aquellas personas de quienes se deba
responder."
That is to say, one is not responsible for the acts of
others, because one is liable only for his own faults,
this being the doctrine of article 1902; but, by
exception, one is liable for the acts of those persons
with whom there is a bond or tie which gives rise to
the responsibility. Is this responsibility direct or
subsidiary? In the order of the penal law, the Penal
Code distinguishes between minors and
incapacitated persons on the one hand, and other
persons on the other, declaring that the
responsibility for the former is direct (article 19), and
for the latter, subsidiary (articles 20 and 21); but in
the scheme of the civil law, in the case of article
1903, the responsibility should be understood as
direct, according to the tenor of that articles, for
precisely it imposes responsibility "for the acts of
those persons for whom one should be responsible."
Coming now to the sentences of the Supreme Tribunal of
Spain, that court has upheld the principles above set forth:
that a quasi-delict or culpa extra-contractual is a separate and
distinct legal institution, independent from the civil
responsibility arising from criminal liability, and that an
employer is, under article 1903 of the Civil Code, primarily
and directly responsible for the negligent acts of his
employee.
One of the most important of those Spanish decisions is that
of October 21, 1910. In that case, Ramon Lafuente died as the
result of having been run over by a street car owned by the
"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:

Considerando que el primer motivo del recurso se

funda en el equivocado supuesto de que el Tribunal a
quo, al condonar a la compaia Electrica Madrilea al
pago del dao causado con la muerte de Ramon La
fuente Izquierdo, desconoce el valor y efectos
juridicos de la sentencia absolutoria deictada en la
causa criminal que se siguio por el mismo hecho,
cuando es lo cierto que de este han conocido las dos
jurisdicciones bajo diferentes as pectos, y como la de
lo criminal declrao dentro de los limites de su
competencia que el hecho de que se trata no era
constitutivo de delito por no haber mediado descuido
o negligencia graves, lo que no excluye, siendo este
el unico fundamento del fallo absolutorio, el concurso
de la culpa o negligencia no califacadas, fuente de
obligaciones civiles segun el articulo 1902 del
Codigo, y que alcanzan, segun el 1903, netre otras
perosnas, a los Directores de establecimientos o
empresas por los daos causados por sus
dependientes en determinadas condiciones, es
manifesto que la de lo civil, al conocer del mismo
hehco baho este ultimo aspecto y al condenar a la
compaia recurrente a la indemnizacion del dao
causado por uno de sus empleados, lejos de infringer
los mencionados textos, en relacion con el articulo
116 de la Ley de Enjuciamiento Criminal, se ha
atenido estrictamente a ellos, sin invadir atribuciones
ajenas a su jurisdiccion propia, ni contrariar en lo
mas minimo el fallo recaido en la causa.
Considering that the first ground of the appeal is
based on the mistaken supposition that the trial
court, in sentencing the 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.
Third. That inasmuch as in the above sentence of October 21,
1910, the employer was held liable civilly, notwithstanding the
acquittal of the employee (the conductor) in a previous
criminal case, with greater reason should Barredo, the
employer in the case at bar, be held liable for damages in a
civil suit filed against him because his taxi driver had been
convicted. The degree of negligence of the conductor in the
Spanish case cited was less than that of the taxi driver,
Fontanilla, because the former was acquitted in the previous
criminal case while the latter was found guilty of criminal
negligence and was sentenced to an indeterminate sentence
of one year and one day to two years of prision correccional.
(See also Sentence of February 19, 1902, which is similar to
the one above quoted.)
In the Sentence of the Supreme Court of Spain, dated
February 14, 1919, an action was brought against a railroad
company for damages because the station agent, employed
by the company, had unjustly and fraudulently, refused to
deliver certain articles consigned to the plaintiff. The Supreme
Court of Spain held that this action was properly under article
1902 of the Civil Code, the court saying:
Considerando que la sentencia discutida reconoce,
en virtud de los hechos que consigna con relacion a
las pruebas del pleito: 1., que las expediciones
facturadas por la compaia ferroviaria a la
consignacion del actor de las vasijas vacias que en
su demanda relacionan tenian como fin el que este
las devolviera a sus remitentes con vinos y alcoholes;
2., que llegadas a su destino tales mercanias no se
quisieron entregar a dicho consignatario por el jefe
de la estacion sin motivo justificado y con intencion
dolosa, y 3., que la falta de entrega de estas
expediciones al tiempo de reclamarlas el

demandante le originaron daos y perjuicios en

cantidad de bastante importancia como expendedor
al por mayor que era de vinos y alcoholes por las
ganancias que dejo de obtener al verse privado de
servir los pedidos que se le habian hecho por los
remitentes en los envases:
Considerando que sobre esta base hay necesidad de
estimar los cuatro motivos que integran este recurso,
porque la demanda inicial del pleito a que se contrae
no contiene accion que nazca del incumplimiento del
contrato de transporte, toda vez que no se funda en
el retraso de la llegada de las mercancias ni de
ningun otro vinculo contractual entre las partes
contendientes, careciendo, por tanto, de aplicacion el
articulo 371 del Codigo de Comercio, en que
principalmente descansa el fallo recurrido, sino que
se limita a pedir la reparaction de los daos y
perjuicios producidos en el patrimonio del actor por
la injustificada y dolosa negativa del porteador a la
entrega de las mercancias a su nombre consignadas,
segun lo reconoce la sentencia, y cuya
responsabilidad esta claramente sancionada en el
articulo 1902 del Codigo Civil, que obliga por el
siguiente a la Compaia demandada como ligada con
el causante de aquellos por relaciones de caracter
economico y de jurarquia administrativa.
Considering that the sentence, in question
recognizes, in virtue of the facts which it declares, in
relation to the evidence in the case: (1) that the
invoice issued by the railroad company in favor of
the plaintiff contemplated that the empty receptacles
referred to in the complaint should be returned to the
consignors with wines and liquors; (2) that when the
said merchandise reached their destination, their
delivery to the consignee was refused by the station
agent without justification and with fraudulent intent,
and (3) that the lack of delivery of these goods when
they were demanded by the plaintiff caused him
losses and damages of considerable importance, as
he was a wholesale vendor of wines and liquors and
he failed to realize the profits when he was unable to
fill the orders sent to him by the consignors of the
receptacles:
Considering that upon this basis there is need of
upholding the four assignments of error, as the
original complaint did not contain any cause of action
arising from non-fulfillment of a contract of
transportation, because the action was not based on
the delay of the goods nor on any contractual
relation between the parties litigant and, therefore,
article 371 of the Code of Commerce, on which the
decision appealed from is based, is not applicable;
but it limits to asking for reparation for losses and
damages produced on the patrimony of the plaintiff
on account of the unjustified and fraudulent
refusal of the carrier to deliver the goods consigned
to the plaintiff as stated by the sentence, and the
carrier's responsibility is clearly laid down in article
1902 of the Civil Code which binds, in virtue of the
next article, the defendant company, because the
latter is connected with the person who caused the
damage by relations of economic character and by
administrative hierarchy. (Emphasis supplied.)

The above case is pertinent because it shows that the same

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

xxx

xxx

"Owners or directors of an establishment or

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

xxx

xxx

xxx

"The liability referred to in this article shall

cease when the persons mentioned therein
prove that they employed all the diligence
of a good father of a family to avoid the
damage."
As an answer to the argument urged in this particular
action it may be sufficient to point out that nowhere
in our general statutes is the employer penalized for
failure to provide or maintain safe appliances for his
workmen. His obligation therefore is one 'not
punished by the laws' and falls under civil rather than
criminal jurisprudence. But the answer may be a
broader one. We should be reluctant, under any
conditions, to adopt a forced construction of these
scientific codes, such as is proposed by the
defendant, that would rob some of these articles of
effect, would shut out litigants against their will from
the civil courts, would make the assertion of their
rights dependent upon the selection for prosecution
of the proper criminal offender, and render recovery
doubtful by reason of the strict rules of proof
prevailing in criminal actions. Even if these articles
had always stood alone, such a construction would
be unnecessary, but clear light is thrown upon their
meaning by the provisions of the Law of Criminal
Procedure of Spain (Ley de Enjuiciamiento Criminal),
which, though never in actual force in these Islands,
was formerly given a suppletory or explanatory
effect. Under article 111 of this law, both classes of
action, civil and criminal, might be prosecuted jointly
or separately, but while the penal action was pending
the civil was suspended. According to article 112, the
penal action once started, the civil remedy should be
sought therewith, unless it had been waived by the
party injured or been expressly reserved by him for
civil proceedings for the future. If the civil action
alone was prosecuted, arising out of a crime that
could be enforced only on private complaint, the
penal action thereunder should be extinguished.
These provisions are in harmony with those of
articles 23 and 133 of our Penal Code on the same
subject.
An examination of this topic might be carried much
further, but the citation of these articles suffices to
show that the civil liability was not intended to be
merged in the criminal nor even to be suspended
thereby, except as expressly provided in the law.
Where an individual is civilly liable for a negligent act
or omission, it is not required that the injured party
should seek out a third person criminally liable whose
prosecution must be a condition precedent to the
enforcement of the civil right.
Under article 20 of the Penal Code the responsibility
of an employer may be regarded as subsidiary in
respect of criminal actions against his employees
only while they are in process of prosecution, or in so
far as they determine the existence of the criminal
act from which liability arises, and his obligation
under the civil law and its enforcement in the civil
courts is not barred thereby unless by the election of

the injured person. Inasmuch as no criminal

proceeding had been instituted, growing our of the
accident in question, the provisions of the Penal Code
can not affect this action. This construction renders it
unnecessary to finally determine here whether this
subsidiary civil liability in penal actions has survived
the laws that fully regulated it or has been abrogated
by the American civil and criminal procedure now in
force in the Philippines.
The difficulty in construing the articles of the code
above cited in this case appears from the briefs
before us to have arisen from the interpretation of
the words of article 1093, "fault or negligence not
punished by law," as applied to the comprehensive
definition of offenses in articles 568 and 590 of the
Penal Code. It has been shown that the liability of an
employer arising out of his relation to his employee
who is the offender is not to be regarded as derived
from negligence punished by the law, within the
meaning of articles 1902 and 1093. More than this,
however, it cannot be said to fall within the class of
acts unpunished by the law, the consequence of
which are regulated by articles 1902 and 1903 of the
Civil Code. The acts to which these articles are
applicable are understood to be those not growing
out of pre-existing duties of the parties to one
another. But where relations already formed give rise
to duties, whether springing from contract or quasi
contract, then breaches of those duties are subject to
articles 1101, 1103, and 1104 of the same code. A
typical application of this distinction may be found in
the consequences of a railway accident due to
defective machinery supplied by the employer. His
liability to his employee would arise out of the
contract of employment, that to the passengers out
of the contract for passage, while that to the injured
bystander would originate in the negligent act itself.
In Manzanares vs. Moreta, 38 Phil., 821 (year 1918), the
mother of the 8 of 9-year-old child Salvador Bona brought a
civil action against Moreta to recover damages resulting from
the death of the child, who had been run over by an
automobile driven and managed by the defendant. The trial
court rendered judgment requiring the defendant to pay the
plaintiff the sum of P1,000 as indemnity: This Court in
affirming the judgment, said in part:
If it were true that the defendant, in coming from the
southern part of Solana Street, had to stop his auto
before crossing Real Street, because he had met
vehicles which were going along the latter street or
were coming from the opposite direction along
Solana Street, it is to be believed that, when he again
started to run his auto across said Real Street and to
continue its way along Solana Street northward, he
should have adjusted the speed of the auto which he
was operating until he had fully crossed Real Street
and had completely reached a clear way on Solana
Street. But, as the child was run over by the auto
precisely at the entrance of Solana Street, this
accident could not have occurred if the auto had
been running at a slow speed, aside from the fact
that the defendant, at the moment of crossing Real
Street and entering Solana Street, in a northward
direction, could have seen the child in the act of

crossing the latter street from the sidewalk on the

right to that on the left, and if the accident had
occurred in such a way that after the automobile had
run over the body of the child, and the child's body
had already been stretched out on the ground, the
automobile still moved along a distance of about 2
meters, this circumstance shows the fact that the
automobile entered Solana Street from Real Street,
at a high speed without the defendant having blown
the horn. If these precautions had been taken by the
defendant, the deplorable 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 cuasidelito or culpa aquiliana under the Civil Code has been fully
and clearly recognized, even with regard to a negligent act for
which the wrongdoer could have been prosecuted and
convicted in a criminal case and for which, after such a
conviction, he could have been sued for this civil liability
arising from his crime.
Years later (in 1930) this Court had another occasion to apply
the same doctrine. In Bernal and Enverso vs. House and
Tacloban Electric & Ice Plant, Ltd., 54 Phil., 327, the parents of
the five-year-old child, Purificacion Bernal, brought a civil
action to recover damages for the child's death as a result of
burns caused by the fault and negligence of the defendants.
On the evening of April 10, 1925, the Good Friday procession
was held in Tacloban, Leyte. Fortunata Enverso with her
daughter Purificacion Bernal had come from another
municipality to attend the same. After the procession the
mother and the daughter with two others were passing along
Gran Capitan Street in front of the offices of the Tacloban
Electric & Ice Plant, Ltd., owned by defendants J. V. House,
when an automobile appeared from the opposite direction.
The little girl, who was slightly ahead of the rest, was so
frightened by the automobile that she turned to run, but
unfortunately she fell into the street gutter where hot water
from the electric plant was flowing. The child died that same
night from the burns. The trial courts dismissed the action
because of the contributory negligence of the plaintiffs. But
this Court held, on appeal, that there was no contributory
negligence, and allowed the parents P1,000 in damages from
J. V. House who at the time of the tragic occurrence was the
holder of the franchise for the electric plant. This Court said in
part:
Although the trial judge made the findings of fact
hereinbefore outlined, he nevertheless was led to
order the dismissal of the action because of the
contributory negligence of the plaintiffs. It is from
this point that a majority of the court depart from the
stand taken by the trial judge. The mother and her
child had a perfect right to be on the principal street
of Tacloban, Leyte, on the evening when the religious
procession was held. There was nothing abnormal in
allowing the child to run along a few paces in
advance of the mother. No one could foresee the

coincidence of an automobile appearing and of a

frightened child running and falling into a ditch filled
with hot water. The doctrine announced in the much
debated case of Rakes vs. Atlantic Gulf and Pacific
Co. ([1907]), 7 Phil., 359), still rule. Article 1902 of
the Civil Code must again be enforced. The
contributory negligence of the child and her mother,
if any, does not operate as a bar to recovery, but in
its strictest sense could only result in reduction of the
damages.
It is most significant that in the case just cited, this Court
specifically applied article 1902 of the Civil Code. It is thus
that although J. V. House could have been criminally
prosecuted for reckless or simple negligence and not only
punished but also made civilly liable because of his criminal
negligence, nevertheless this Court awarded damages in an
independent civil action for fault or negligence under article
1902 of the Civil Code.
In Bahia vs. Litonjua and Leynes (30 Phil., 624 [year 1915),
the action was for damages for the death of the plaintiff's
daughter alleged to have been caused by the negligence of
the servant in driving an automobile over the child. It
appeared that the cause of the mishap was a defect in the
steering gear. The defendant Leynes had rented the
automobile from the International Garage of Manila, to be
used by him in carrying passengers during the fiesta of Tuy,
Batangas. Leynes was ordered by the lower court to pay
P1,000 as damages to the plaintiff. On appeal this Court
reversed the judgment as to Leynes on the ground that he
had shown that the exercised the care of a good father of a
family, thus overcoming the presumption of negligence under
article 1903. This Court said:
As to selection, the defendant has clearly shown that
he exercised the care and diligence of a good father
of a family. 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.
This theory bases the responsibility of the master
ultimately on his own negligence and not on that of
his servant.
The doctrine of the case just cited was followed by this Court
in Cerf vs. Medel (33 Phil., 37 [year 1915]). In the latter case,
the complaint alleged that the defendant's servant had so
negligently driven an automobile, which was operated by
defendant as a public vehicle, that said automobile struck and
damaged the plaintiff's motorcycle. This Court, applying
article 1903 and following the rule in Bahia vs. Litonjua and
Leynes, said in part (p. 41) that:
The master is liable for the negligent acts of his
servant where he is the owner or director of a
business or enterprise and the negligent acts are
committed while the servant is engaged in his
master's employment as such owner.
Another case which followed the decision in Bahia vs. Litonjua
and Leynes was Cuison vs. Norton & Harrison Co., 55 Phil., 18
(year 1930). The latter case was an action for damages
brought by Cuison for the death of his seven-year-old son
Moises. The little boy was on his way to school with his sister
Marciana. Some large pieces of lumber fell from a truck and
pinned the boy underneath, instantly killing him. Two youths,
Telesforo Binoya and Francisco Bautista, who were working for
Ora, an employee of defendant Norton & Harrison Co.,
pleaded guilty to the crime of homicide through reckless
negligence and were sentenced accordingly. This Court,
applying articles 1902 and 1903, held:
The basis of civil law liability is not respondent
superior but the relationship of pater familias. This
theory bases the liability of the master ultimately on
his own negligence and not on that of his servant.
(Bahia vs. Litonjua and Leynes [1915], 30 Phil., 624;
Cangco vs. Manila Railroad Co. [1918], 38 Phil., 768.)
In Walter A. Smith & Co. vs. Cadwallader Gibson Lumber Co.,
55 Phil., 517 (year 1930) the plaintiff brought an action for
damages for the demolition of its wharf, which had been
struck by the steamer Helen C belonging to the defendant.
This Court held (p. 526):
The evidence shows that Captain Lasa at the time
the plaintiff's wharf collapsed was a duly licensed
captain, authorized to navigate and direct a vessel of
any tonnage, and that the appellee contracted his
services because of his reputation as a captain,
according to F. C. Cadwallader. This being so, we are
of the opinion that the presumption of liability

against the defendant has been overcome by the

exercise of the care and diligence of a good father of
a family in selecting Captain Lasa, in accordance with
the doctrines laid down by this court in the cases
cited above, and the defendant is therefore absolved
from all liability.
It is, therefore, seen that the defendant's theory about his
secondary liability is negatived by the six cases above set
forth. He is, on the authority of these cases, primarily and
directly responsible in damages under article 1903, in relation
to article 1902, of the Civil Code.
Let us now take up the Philippine decisions relied upon by the
defendant. We study first, City of Manila vs. Manila Electric
Co., 52 Phil., 586 (year 1928). A collision between a truck of
the City of Manila and a street car of the Manila Electric Co.
took place on June 8, 1925. The truck was damaged in the
amount of P1,788.27. Sixto Eustaquio, the motorman, was
prosecuted for the crime of damage to property and slight
injuries through reckless imprudence. He was found guilty and
sentenced to pay a fine of P900, to indemnify the City of
Manila for P1,788.27, with subsidiary imprisonment in case of
insolvency. Unable to collect the indemnity from Eustaquio,
the City of Manila filed an action against the Manila Electric
Company to obtain payment, claiming that the defendant was
subsidiarily liable. The main defense was that the defendant
had exercised the diligence of a good father of a family to
prevent the damage. The lower court rendered judgment in
favor of the plaintiff. This Court held, in part, that this case
was governed by the Penal Code, saying:
With this preliminary point out of the way, there is no
escaping the conclusion that the provisions of the
Penal Code govern. The Penal Code in easily
understandable language authorizes the
determination of subsidiary liability. The Civil Code
negatives its application by providing that civil
obligations arising from crimes or misdemeanors
shall be governed by the provisions of the Penal
Code. The conviction of the motorman was a
misdemeanor falling under article 604 of the Penal
Code. The act of the motorman was not a wrongful or
negligent act or omission not punishable by law.
Accordingly, the civil obligation connected up with
the Penal Code and not with article 1903 of the Civil
Code. In other words, the Penal Code affirms its
jurisdiction while the Civil Code negatives its
jurisdiction. This is a case of criminal negligence out
of which civil liability arises and not a case of civil
negligence.
xxx

xxx

xxx

Our deduction, therefore, is that the case relates to

the Penal Code and not to the Civil Code. Indeed, as
pointed out by the trial judge, any different ruling
would permit the master to escape scot-free by
simply alleging and proving that the master had
exercised all diligence in the selection and training of
its servants to prevent the damage. That would be a
good defense to a strictly civil action, but might or
might not be to a civil action either as a part of or
predicated on conviction for a crime or misdemeanor.
(By way of parenthesis, it may be said further that

the statements here made are offered to meet the

argument advanced during our deliberations to the
effect that article 0902 of the Civil Code should be
disregarded and codal articles 1093 and 1903
applied.)
It is not clear how the above case could support the
defendant's proposition, because the Court of Appeals based
its decision in the present case on the defendant's primary
responsibility under article 1903 of the Civil Code and not on
his subsidiary liability arising from Fontanilla's criminal
negligence. In other words, the case of City of Manila vs.
Manila Electric Co., supra, is predicated on an entirely
different theory, which is the subsidiary liability of an
employer arising from a criminal act of his employee, whereas
the foundation of the decision of the Court of Appeals in the
present case is the employer's primary liability under article
1903 of the Civil Code. We have already seen that this is a
proper and independent remedy.
Arambulo vs. Manila Electric Co. (55 Phil., 75), is another case
invoked by the defendant. A motorman in the employ of the
Manila Electric Company had been convicted o homicide by
simple negligence and sentenced, among other things, to pay
the heirs of the deceased the sum of P1,000. An action was
then brought to enforce the subsidiary liability of the
defendant as employer under the Penal Code. The defendant
attempted to show that it had exercised the diligence of a
good father of a family in selecting the motorman, and
therefore claimed exemption from civil liability. But this Court
held:
In view of the foregoing considerations, we are of
opinion and so hold, (1) that the exemption from civil
liability established in article 1903 of the Civil Code
for all who have acted with the diligence of a good
father of a family, is not applicable to the subsidiary
civil liability provided in article 20 of the Penal Code.
The above case is also extraneous to the theory of the
defendant in the instant case, because the action there had
for its purpose the enforcement of the defendant's subsidiary
liability under the Penal Code, while in the case at bar, the
plaintiff's cause of action is based on the defendant's primary
and direct responsibility under article 1903 of the Civil Code.
In fact, the above case destroys the defendant's contention
because that decision illustrates the principle that the
employer's primary responsibility under article 1903 of the
Civil Code is different in character from his subsidiary liability
under the Penal Code.
In trying to apply the two cases just referred to, counsel for
the defendant has failed to recognize the distinction between
civil liability arising from a crime, which is governed by the
Penal Code, and the responsibility for cuasi-delito or culpa
aquiliana under the Civil Code, and has likewise failed to give
the importance to the latter type of civil action.
The defendant-petitioner also cites Francisco vs. Onrubia (46
Phil., 327). That case need not be set forth. Suffice it to say
that the question involved was also civil liability arising from a
crime. Hence, it is as inapplicable as the two cases above
discussed.

The foregoing authorities clearly demonstrate the separate

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

conveyance usually do not have sufficient means with which

to pay damages. Why, then, should the plaintiff be required in
all cases to go through this roundabout, unnecessary, and
probably useless procedure? In construing the laws, courts
have endeavored to shorten and facilitate the pathways of
right and justice.
At this juncture, it should be said that the primary and direct
responsibility of employers and their presumed negligence are
principles calculated to protect society. Workmen and
employees should be carefully chosen and supervised in order
to avoid injury to the public. It is the masters or employers
who principally reap the profits resulting from the services of
these servants and employees. It is but right that they should
guarantee the latter's careful conduct for the personnel and
patrimonial safety of others. As Theilhard has said, "they
should reproach themselves, at least, some for their
weakness, others for their poor selection and all for their
negligence." And according to Manresa, "It is much more
equitable and just that such responsibility should fall upon the
principal or director who could have chosen a careful and
prudent employee, and not upon the injured person who could
not exercise such selection and who used such employee
because of his confidence in the principal or director." (Vol. 12,
p. 622, 2nd Ed.) Many jurists also base this primary
responsibility of the employer on the principle of
representation of the principal by the agent. Thus, Oyuelos
says in the work already cited (Vol. 7, p. 747) that before third
persons the employer and employee "vienen a ser como una
sola personalidad, por refundicion de la del dependiente en la
de quien le emplea y utiliza." ("become as one personality by
the merging of the person of the employee in that of him who
employs and utilizes him.") All these observations acquire a
peculiar force and significance when it comes to motor
accidents, and there is need of stressing and accentuating the
responsibility of owners of motor vehicles.
Fourthly, because of the broad sweep of the provisions of both
the Penal Code and the Civil Code on this subject, which has
given rise to the overlapping or concurrence of spheres
already discussed, and for lack of understanding of the
character and efficacy of the action for culpa aquiliana, there
has grown up a common practice to seek damages only by
virtue of the civil responsibility arising from a crime, forgetting
that there is another remedy, which is by invoking 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.
Yulo, C.J., Moran, Ozaeta and Paras, JJ., concur.

Court of First Instance of Cavite at Bacoor granted the motion

to Civil Case No. B-134 for damages. 2
The principal issue is weather or not the of the Arsenio Virata,
can prosecute an action for the damages based on quasidelict against Maximo Borilla and Victoria Ochoa, driver and
owner, respectively on the passenger jeepney that bumped
Arsenio Virata.

G.R. No. L-46179 January 31, 1978

CANDIDA VIRATA, TOMAS VIRATA, MANOLITO VIRATA,
EDERLINDA VIRATA, NAPOLEON VIRATA, ARACELY
VIRATA, ZENAIDA VIRATA, LUZMINDA VIRATA, PACITA
VIRATA, and EVANGELINA VIRATA,petitioners,
vs.
VICTORIO OCHOA, MAXIMO BORILLA and THE COURT OF
FIRST INSTANCE OF CAVITE, 7th JUDICIAL DISTRICT,
BRANCH V, stationed at BACOOR, CAVITE, respondents.
Remulla, Estrella & Associates for petitioners
Exequil C. Masangkay for respondents.

FERNANDEZ, J.:
This is an appeal by certiorari, from the order of the Court of
First Instance of Cavite, Branch V, in Civil Case No. B-134
granting the motion of the defendants to dismiss the
complaint on the ground that there is another action pending
between the same parties for the same cause. 1
The record shows that on September 24, 1975 one Arsenio
Virata died as a result of having been bumped while walking
along Taft Avenue, Pasay City by a passenger jeepney driven
by Maximo Borilla and registered in the name Of Victoria
Ochoa; that Borilla is the employer of Ochoa; that for the
death of Arsenio Virata, a action for homicide through reckless
imprudence was instituted on September 25, 1975 against
Maximo Borilla in the Court of First Instance of Rizal at Pasay
City, docketed as C Case No. 3162-P of said court; that at the
hearing of the said criminal case on December 12, 1975, Atty.
Julio Francisco, the private prosecutor, made a reservation to
file a separate civil action for damages against the driver on
his criminal liability; that on February 19, 1976 Atty. Julio
Francisco filed a motion in said c case to withdraw the
reservation to file a separate civil action; that thereafter, the
private prosecutor actively participated in the trial and
presented evidence on the damages; that on June 29, 1976
the heirs of Arsenio Virata again reserved their right to
institute a separate civil action; that on July 19, 1977 the heirs
of Arsenio Virata, petitioners herein, commenced Civil No. B134 in the Court of First Instance of Cavite at Bacoor, Branch
V, for damages based on quasi-delict against the driver
Maximo Borilla and the registered owner of the jeepney,
Victorio Ochoa; that on August 13, 1976 the defendants,
private respondents filed a motion to dismiss on the ground
that there is another action, Criminal Case No. 3162-P,
pending between the same parties for the same cause; that
on September 8, 1976 the Court of First Instance of Rizal at
Pasay City a decision in Criminal Case No. 3612-P acquitting
the accused Maximo Borilla on the ground that he caused an
injury by name accident; and that on January 31, 1977, the

It is settled that in negligence cases the aggrieved parties

may choose between an action under the Revised Penal Code
or of quasi-delict under Article 2176 of the Civil Code of the
Philippines. What is prohibited by Article 2177 of the Civil
Code of the Philippines is to recover twice for the same
negligent act.
The Supreme Court has held that:
According to the Code Commission: 'The
foregoing provision (Article 2177) 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 'culpa aquiliana' or
quasi-delict, of ancient origin, having always
had its own foundation and individuality,
separate from criminal negligence. Such
distinction between criminal negligence and
'culpa extra-contractual' or quasi-delito has
been sustained by decision of the Supreme
Court of Spain and maintained as clear,
sound and perfectly tenable by Maura, an
outstanding Spanish jurist. Therefore, under
the proposed Article 2177, acquittal from an
accusation of criminal negligence, whether
on reasonable doubt or not, shall not be a
bar to a subsequent civil action, not for civil
liability arising from criminal negligence, but
for damages due to a quasi-delict or 'culpa
aquiliana'. But said article forestalls a
double recovery. (Report of the Code
Commission, p. 162.)
Although, again, this Article 2177 does seem
to literally refer to only acts of negligence,
the same argument of Justice Bocobo about
construction that upholds 'the spirit that
given life' 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 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 language in Rakes vs. Atlantic Gulf

and Pacific Co., 7 Phil. to 359, to hod as We

do hold, that Article 2176, where it refers to
'fault covers not only acts 'not punishable
by law' but also criminal in character,
whether intentional and voluntary or
consequently, a separate civil action lies
against the in a criminal act, whether or not
he is criminally prosecuted and found guilty
and 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 refereed to in Par. (c) of Section
13, 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
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. Brief stated, We
hold, in reitration of Garcia, that culpa
aquilina includes voluntary and negligent
acts which may be punishable by law. 3
The petitioners are not seeking to recover twice for the same
negligent act. Before Criminal Case No. 3162-P was decided,
they manifested in said criminal case that they were filing a
separate civil action for damages against the owner and
driver of the passenger jeepney based on quasi-delict. The
acquittal of the driver, Maximo Borilla, of the crime charged in
Criminal Case No. 3162-P is not a bar to the prosecution of
Civil Case No. B-134 for damages based on quasi-delict The
source of the obligation sought to be enforced in Civil Case
No. B-134 is quasi-delict, not an act or omission punishable by
law. Under Article 1157 of the Civil Code of the Philippines,
quasi-delict and an act or omission punishable by law are two
different sources of obligation.
Moreover, for the petitioners to prevail in the action for
damages, Civil Case No. B-134, they have only to establish
their cause of action by preponderance of the evidence.
WHEREFORE, the order of dismissal appealed from is hereby
set aside and Civil Case No. B-134 is reinstated and remanded
to the lower court for further proceedings, with costs against
the private respondents.
SO ORDERED.
Teehankee (Chairman), Makasiar, Muoz Palma and Guerrero,
JJ., concur.
G.R. No. L-17690

June 14, 1922

YU BIAO SONTUA & CO., plaintiff-appellee,

vs.
MIGUEL J. OSSORIO, defendant-appellant.

Antonio Sanz and Kincaid, Perkins and Kincaid for appellant.

M. H. de Joya for appellee.
ROMUALDEZ, J.:
On the evening of the 13th of March, 1920, a fire broke out on
board the motor boat Alfonso when this boat was in the Pasig
River, city of Manila, ready to weigh anchor. A short distance
from the Alfonso the steamer Y. Sontua was lying alongside
moored to the wharf of said river.
The fire in the motor boat Alfonso spread to the steamer Y.
Sontua, causing damages to her deck, according to plaintiff,
amounting to P67,400.
The plaintiff, which is a regular partnership and the owner of
the steamer Y. Sontua, brought this action to recover from the
defendant, the owner and agent of said motor boat Alfonso,
the aforementioned sum as indemnity for the damages
alleged by the plaintiff to have been sustained by him through
the negligence of the agents and employees of the said
defendant, which caused the fire in the aforesaid motor
boat Alfonso, wherefrom it spread, and caused said damages
to the steamer Y. Sontua. These damages are specified in the
two causes of action set forth in the complaint, in the first of
which are mentioned the appurtenances and parts of the
aforesaid vessel that were destroyed and damaged by the
said fire, and for the repair of which the sum of P40,000 was
expended. In the second cause of action it is alleged that the
plaintiff sustained damages to the amount of P27,400 for the
demurrage and delay in the ordinary voyages of the aforesaid
vessel Y. Sontua. After denying generally and specifically the
allegations of the complaint, the defendant alleges, as special
defense, that he has taken no part either directly or indirectly
in the acts alleged in the complaint; that if the plaintiff has
sustained any damages, they are not the result of the act said
to have been committed by the agents and employees of the
defendant; and are not imputable to the negligence of the
defendant, or any of his agents, employees, or mandatories.
The case having been tried, the court sentenced the
defendant to pay the plaintiff the above-mentioned sum of
P67,400, with legal interest thereon from the date of the filing
of the complaint, and the costs.
From the judgment the defendant appeals to this court
assigning three errors, to wit: (a) The finding that the
explosion in question was due to the negligence of the
persons in charge of the motor boat Alfonso; (b) the finding
that the defendant is liable for the negligence of his agents
and employees; and (c) the awarding of an excessive sum as
damages.
With regard to the first error, the following facts are proven:
That during the day and night of the 12th, and during the day
of the 13th of March 1920, there were loaded in the said
motor boat Alfonso 2,000 cases of petroleum and 8,473 cases
of gasoline, of which 5,000 cases of gasoline and 2,000 of
petroleum were placed in the hold of said motor boat, and the
balance on deck; that said loading was done without
permission from the customs authorities; that the said cases
were loaded by means of straps supporting 10 or 12 cases at
a time; that the said cases of gasoline and petroleum were
placed in the hold about 14 feet from the boiler of the main

engine and about 4 feet from the boiler of the smaller engine;
that on the evening of the 13th of March, 1920, the smaller
engine was in operation preparatory to the departure of the
motor boat which, at that time, was getting ready to leave;
that the fire in said motor boat burst out with an explosion
followed by a violent expulsion of gasoline and petroleum;
that owing to the proximity of the motor boat to the
steamer Y. Sontua, the magnitude of the fire and the
inflammability of the material that served as fuel, the fire
spread to the said steamer Y. Sontua, and so rapidly that it
was impossible for the crew of the Y. Sontua to check its
progress,
Expert testimony was also introduced by the plaintiff to the
effect that it is but natural that, after several transhipments of
more than 8,000 cases of gasoline and 2,000 cases of
petroleum there is bound to be a leakage, on an average of 1
to 4 cases per hundred, due to the fact that the loading is
effected by means of straps supporting from 10 to 12 cases at
a time which, quite frequently, receive violent bumps resulting
in damage to the cans and the consequent leakage of either
gasoline or petroleum, as the case may be.
It was also shown by expert testimony that the gases formed
by the volatilization of the gasoline or petroleum leaking from
the cases are apt to accumulate in a compartment, such as
the hold of a ship, without sufficient ventilation causing the
gases to ignite upon coming in contact with a spark or upon
the temperature being sufficiently raised.
Under these circumstances we are constrained to hold that
the fire which caused the damages for which the plaintiff
seeks to be indemnified was the inevitable effect of the
explosion and fire which occurred in the motor boatAlfonso;
that this explosion and fire in the said motor boat is, with
good ground, imputable to the negligence of the persons
having charge at that time of said motor boat and under
whose direction the loading of the aforesaid cases of
petroleum and gasoline had been performed.
The trial court did not, therefore, commit the first error
assigned by the appellant.
In the second assignment of error, the appellant contends that
the defendant ought not to be held liable for the negligence of
his agents and employees.
It is proven that the agents and employees, through whose
negligence the explosion and fire in question occurred, were
agents, employees, and mandatories of the defendant. Where
the vessel is one of freight, a public concern or public utility,
its owner or agent is liable for the tortious acts of his agents
(arts. 587, 613, and 618, Code of Commerce; and arts. 1902,
1903, 1908, Civil Code). This principle has been repeatedly
upheld in various decisions of this court.
The doctrines cited by the appellant in support of his theory
have reference to the relations between principal and agent
and his agents and employees; for this reason they cannot be
applied in the present case.
In American law, principles similar to those in force in the
Philippines and contained in the Code of Commerce above
cited, are prevailing:

Vessel owner's liability in general. The general

liability of a vessel owner extends to losses by fire
arising from other than a natural or other excepted
cause, whether occurring on the ship accidentally, or
communicated from another vessel, or from the
shore; and the fact that fire produces the motive
power of a boat does not affect the case. Such losses
are not within the exceptions either of act of God, or
peril of the sea, except by local custom, unless
proximately caused by one of these events. In
jurisdictions where the civil law obtains, however, it
has been held that if property on a steamboat is
destroyed by fire, the owners of the boat are not
responsible, if it was being navigated with proper
diligence, although the accident occurred at night.
The common law liability extends even to loss by
fires caused entirely by spontaneous combustion of
the cargo, without any negligence on the part of
master or crew. (R.C.L., vol. 24, pp. 1324-1325.)
With regard to the allegation that the obligations enumerated
in article 612 of our Code of Commerce are inherent in the
master such inherent duties do not limit to the latter the civil
liability arising from their nonfulfillment, but while the master
is responsible to the ship agent, the ship agent, in turn, is
responsible to third persons, as is clearly provided in article
618 of said Code, in which express mention is made, is
subsections 5 and 7, of the duties enumerated in the said
article 612.
Therefore there is also no ground for holding that the second
error assigned by the appellant has been committed.
The third error is concerned with the amount of the damages
sustained by the plaintiff.
It is sufficiently proven that the sum paid by the plaintiff to the
Earnshaw Shipyards for the repairs made to the steamer Y.
Sontua, damage to which was caused by the fire in question,
amount to P27,968; that the materials used in said repairs
and paid for by the plaintiff are worth P12,139.30. As to the
damages sustained by the plaintiff on account of the delay of
the steamer Y. Sontua, the evidence shows that this steamer
was delayed ten days in the Pasig River, waiting for available
space in the shipyard before it was taken to the said repairshop; that it was not absolutely necessary that the repair of
the damages caused by the fire should be made in the
shipyard; that said vessel was taken to the shipyard for repair
of some parts of it not damaged by the fire in question.
As the evidence does not sufficiently show the time consumed
in repairing the actual damage caused by the said fire, nor the
time employed in making the other repairs, and as the
damage, if any, resulting from the ten days' delay in the Pasig
River, is remote and, therefore, not chargeable to the
defendant since said delay is in no way imputable to him, we
think, in view of all of the circumstances of the case and
taking into consideration the importance of all the repairs,
whether by fire or otherwise, the delay of seventy days,
according to the evidence of the plaintiff, chargeable to the
defendant, should be reduced to one-half, or thirty-five days
at the rate of P410.84 a day which is the net profit that the
aforesaid steamer Y. Sontua failed to realize as a consequence
of said delay. We find that the damages sustained by the
plaintiff by reason of this delay amount to P14,379.40.

The plaintiff further asks that he be awarded, by way of

damages, the sum of P4,400 covering maintenance and salary
of the officers and crew of his steamer during the delay
aforementioned. We do not feel that he is entitled to this item
for the reason that such expenses have already been taken
into account in determining the net daily profit above referred
to. We find that the total sum which the plaintiff is entitled to
recover from the defendant as damages under the facts
stated is fifty-four thousand four hundred eighty-six pesos and
seventy centavos (P54,486.70).

Important details were not brought out in the testimony,

although it would have been easy to supply those details. The
most important question of fact to determine was the
relationship of Ora to Norton & Harrison Co., whether he was a
servant of the company or an independent contractor. In view
of the debatabel facts found in the record, and in view of the
propriety of obtaining as much enlightenment as possible on
the main issue, it is deemed advisable to set forth a
considerable portion of Ora's testimony. He testified:
Q. Do you know the truck T-101? A. Yes, sir.

The judgment appealed from is hereby modified and the

defendant sentenced to pay the plaintiff the sum of
P54,486.70 with costs. So ordered.

Q. Whose is that truck ? A. Mine.

Araullo, C.J., Avancea, Villamor, Ostrand and Johns, JJ.,

concur.

Q. Showing you this document which I ask to be

marked Exhibit 1(certificate of ownership of a truck )
state what is that document? A.This is the
document of my truck.

G.R. No. L-32774

October 14, 1930

BALBINO CUISON, plaintiff-appellant,

vs.
NORTON & HARRISON CO., TELESFORO BINOYA Y
ALMINANZA and FRANCISCO BAUTISTA Y
CRUZ,defendants.
NORTON & HARRISON CO., appellee.
Vicente Sotto for appellant.
Gibbs and McDonough for appellee.

Q. On August 9,1928, when, according to the

complaint, the boy Moises Cuison was killed, was that
truck used? A. Yes, sir.
Q. For Whom? A. For me.
Q. For what kind of work? A. For loading lumber.
Q. Lumber of whom? A. Of Norton & Harrison Co.
Q. Where was the lumber to be taken? A. To Santa
Mesa.

MALCOLM, J.:
This is an action brought by the father to recover damages in
the amount of P30,000 for the death of his son, alleged to
have been caused by the negligence of the defendant. The
answer pleaded the general issue. The judgment in the Court
of First Instance absolved the defendant from the complaint,
without pronouncement as to costs.
A succinct statement of the facts will be first undertaken as
follows: On the afternoon of August 9, 1928, Moises Cuison, a
boy 7 years of age, the son of the plaintiff, was on his way to
the Santa Mesa School, in the City of Manila, in company with
his sister Marciana. As they came near to the fire station,
some large pieces of lumber on a truck which had stopped fell
from it pinning the boy beneath, and causing his almost
instant death. The truck in questioned was owned by Antonio
Ora. It was driven by Felix Jose, with Telesforo Binoya as
the washing and Francisco Bautista as the helper, the two
latter being youths less than18 years of age. Jose Binoya, and
Bautista were employees of Ora. The truck was rented by Ora
to Norton & Harrison Co. On the truck were the letters "N-H,"
which were the first letters of the firm name. Ora was in the
employ of Norton & Harrison Co. as a capataz. It was his duty
as such employee to direct the loading and transportation of
the lumber. When the accident occurred the lumber had
become loosened, and it was to rearrange it that the truck
halted, without, however, there arrangement having been
made before the pieces of lumber had fallen and killed the
boy.

Q. What was the agreement between you and Norton

& Harrison Co. regarding the transportation of lumber
to Santa Mesa?
xxx

xxx

xxx

A. The truck carried the lumber which I contracted

with Norton & Harrison for transportation to certain
places. I had an agreement with Norton & Harrison to
carry and transport lumber coming from its lumber
yard to the place of its destination.
Q. Did you rent the truck to Norton & Harrison
monthly or annually? A. By the cubic foot,
depending upon the distance travelled.
Q. Do you know Telesforo Binoya y Alminanza and
Francisco Bautista y Cruz? A. Yes, sir.
Q. Had they anything to do with the loading of the
lumber of Norton & Harrison on the truck?
xxx

xxx

xxx

A. The said Bautista and Binoya were not the ones

who did the loading on my truck. There were other
persons stronger than these two who did the loading.

Q. What I mean to say is whether Binoya and

Bautista, on August 9,1928, when the truck went to
the office of Norton & Harrison to carry lumber to
Santa Mesa, had anything to do with the loading of
the lumber on said truck ? A. No, sir.

Q. You said that you entered into a contract with

Norton & Harrison, do you have a copy of that
contract? A. No, sir, we had an agreement and not
a contract.
Q. Verbal agreement? A. Yes,sir.

xxx

xxx

xxx
xxx

Q. In your agreement with Norton & Harrison for the

transportation of lumber, who was under the
obligation to load the lumber on the truck?
xxx

xxx

xxx

xxx

Q. How do you collect the rent of the truck, monthly

or daily? A. It depends upon the cargo and the
distance travelled.

xxx

A. I have already said that the agreement with

Norton & Harrison was to load the lumber on my
truck and take it to its destination.

Q. Daily? A. If I have loaded three times, then I

have three collections.
Q. Do you issue receipts therefor? A. Yes,sir.

JUDGE:

Q. Have you any with you? A. I don't have.

Q. But who was to do the loading of the lumber, your

men or their men? A. My men.

Q. Can that truck of yours be rented by anybody?

A. No, sir.

xxx

xxx

xxx

Q. Only by Norton & Harrison? A. Only for my

work.

Q. You said that you are an employee? A. Yes, sir.

Q. Where are you employed? A. In the firm of
Norton & Harrison.

Q. Do you have with you any books of account

pertaining to the business of your truck? A. No, sir.
Q. Not even a note? A. I don't have.

Q. Since when? A. Since 1911.

Q. In what capacity? A. As foreman.

Q. Not even the firm of Norton & Harrison? A. They

may have because the number of truck and the total
number of board feet appear on every receipt.

Q. What kind of work do you have? A. Foreman.

Q. Capataz? A. Yes, sir.

Q. As owner of the truck, don't you have any note?

A. No, sir.

Q. And as foreman, are you in charge of paying the

wages of the workers? A. No, sir.

Q. Is that truck No. T-101 the only one you have?

A. I Have some more.

Q. Therefore you are the capataz who directs the

loading and transportation of lumber? A. Yes, sir.

Q. Some more? A. Yes, sir.

Q. For rent? A. For my own use. 1awph!l.net

Q. Please see Exhibit 1 of the plaintiff and state if

truck T-101 is what appears therein? A. Yes, sir.
Q. Do you admit that the condition of that truck on
August 9, 1928, is as it appears in this photograph?
A. yes, sir.
Q. What explanation can you give the court
accounting for the sign 'N- H' which appears on the
coach box of the truck? A. The sign 'N-H'
appearing there means that the lumber belongs to
Norton & Harrison.
Q. And as a foreman of Norton & Harrison, do you
receive any salary? A. Yes, sir.
Q. How much? A. P200.

Q. For the exclusive use of Norton & Harrison ? A. I

have a lime factory, and they are used for the
transportation lime.
Q. But this truck T-101 is exclusively intended to be
rented by Norton & Harrison? A. It is not rented
exclusively to Norton & Harrison. I use it in my other
contracts to carry cargoes, and also to carry lime.
Q. For the exclusive use of Norton & Harrison ? A.
No, sir, I use it also for the transportation of lime.
It is evident from the foregoing that Ora was a contractor and
an employee at the same time of Norton & Harrison Co.
Reverting now to the law, counsel for neither party has
considered it necessary to assist the court in this regard.

However, just as the ascertainment of the facts is important,

so is it important to have before us the applicable law.
The Penal Code makes provisions for the civil liability of
persons criminally liable, and establishes subsidiary liability
for persons and corporations engaged in any kind of industry
for felonies and misdemeanors committed by their servants in
the discharge of their duties. (Penal Code, arts. 17-20.) In this
instance, recurring to the facts, it should have been
mentioned that the two youths, Binoya and Bautista, pleaded
guilty to the crime of homicide through reckless negligence,
and were sentenced accordingly.
The basis of civil law liability is not respondeat superior but
the relationship of paterfamilias. This theory bases the liability
of the master ultimately on his own negligece 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. As
to Porto Rico, see Acosta vs. Porto Rico Gas Co. [1915], 7
Porto Rico Fed., 475; and Ortiz vs. Ezquiaga [1918], 10 Porto
Rico Fed., 350.) Article 1902 of the Civil Code provides:
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. Article 1903,
paragraphs 4 and 7 of the same Code provides:

of P1,000. (Manzanares vs. Moreta [1918], 38 Phil., 821;

Bernal and Enverso vs. House and Tacloban Electric & Ice
Plant [1930], 54 Phil., 327.) Judgment will be reversed, and in
the court of origin another judgment will issue in favor of the
plaintiff and against the defendant for the sum of P1,000. So
ordered, without special finding as to costs in either instance.
Avancea, C.J., Street, Villamor and Romualdez, JJ., concur.

G.R. No. L-10073 December 24, 1915

BUTARO YAMADA, plaintiff-appellee,
vs.
THE MANILA RAILROAD CO., defendant, and BACHRACH
GARAGE & TAXICAB CO., defendant-appellant.

G.R. No. L-10074 December 24, 1915

KENJIRO KARABAYASHI, plaintiff-appellee,
vs.
THE MANILA RAILROAD CO., defendant, and BACHRACH
GARAGE & TAXICAB CO., defendant-appellant.

Owners or directors of any establishment or business

are, in the same way, liable for any damages caused
by their employees while engaged in the branch of
the service in which employed, or an occasion of the
performance of their duties.

G.R. No. L-10075 December 24, 1915

The liability imposed by this article shall cease in

case the persons subject thereto prove that they
exercised all the diligence of a good father of a
family to prevent the damage.

TAKUTARU UYEHARA, plaintiff-appellee,

vs.
THE MANILA RAILROAD CO., defendant, and BACHRACH
GARAGE & TAXICAB CO., defendant-appellant.

It is well to repeat that under the civil law an employer is only

liable for the negligence of his employees in the discharge of
their respective duties. The defense of independent contractor
would be a valid one in the Philippines just as it would be in
the United States. Here Ora was a contractor, but it does not
necessarily follow that he was an independent contractor. The
reason for this distinction is that the employer retained the
power of directing and controlling the work. The chauffeur and
the two persons on the truck were the employees of Ora, the
contractor, but Ora, the contractor, was an employee of
Norton & Harrison Co., charged with the duty of directing the
loading and transportation of the lumber. And it was the
negligence in loading the lumber and the use of minors on the
truck which caused the death of the unfortunate boy. On the
facts and the law, Ora was not an independent contractor, but
was the servant of the defendant, and for his negligence
defendant was responsible.
Conceding that the record discloses a most unusual state of
facts, and conceding that the evidence is not as ample as it
should be, nevertheless on the record as it is and on the law
as it is, it is incumbent on the court to rule that error was
committed in the lower court in not awarding the father of the
dead boy damages for the wrongful death of his son. It has
been the practice of this court in cases of death through
negligence, in the absence of special proof, to allow the sum

D.R. Williams for appellant.

Rohde and Wright for appellees.

MORELAND, J.:
The three cases dealt with in this decision differ in their facts
only with respect to the injury suffered by the respective
plaintiffs. The law applicable to them is the same and, at the
request of counsel, they will be decided at the same time.
Plaintiffs claim damages against both the railroad and the
garage company because of injuries suffered by them in a
collision between a train owned by and operated over tracks
belonging to the railroad company and an automobile the
property of the Bachrach Garage & Taxicab Co.
On January 2, 1913, the plaintiffs, together with three
companions, hired an automobile from the defendant taxicab
company for a trip to Cavite Viejo. The automobile was
secured at a certain price hour and was driven and controlled
by a chauffeur supplied by the taxicab company. The journey
to Cavite Viejo was made without incident but, on the return
trip, while crossing the tracks of defendant railroad company
in the barrio of San Juan, municipality of Cavite Viejo, the
automobile was struck by a train and the plaintiffs injured.
The trial court dismissed the complaint on the merits as to the
Manila Railroad Company and held the defendant taxicab

company liable for damages to the plaintiffs in various

amounts. The taxicab company appealed.
It appears from the record, and was found by the trial court,
that the driver of the automobile drove his machine upon the
railroad tracks without observing the precautions which
ordinary care and prudence would require, without reducing
speed and without taking any precaution looking to
determining whether there was danger from a train or
locomotive. The trial court accordingly found that the driver
was guilty of gross negligence and that said negligence was
the proximate cause of the accident. It also found that the
driver had been, in effect, instructed by the taxicab company
to approach and pass over railroad tracks in the manner and
form followed and observed on the occasion in question, and
that, for that reason, the taxicab company was liable for the
damages caused.
Several errors are assigned by the appellant. The first one
relates to the finding of the trial court: "That the driver of the
automobile did not slacken speed, which was fast, upon
approaching the railroad crossing, which was clearly visible
and had to be approached on an upward grade, or take any
other precaution to avert accident. ... and I can but conclude
that the driver of the automobile was grossly negligent and
careless in not taking such precaution as would have notified
him of the coming of the train. On the contrary, he proceeded
with reckless speed and regardless of possible or threatened
danger. If he had been driving the automobile at a proper rate
of speed for going over railroad crossing he could easily have
stopped before going over the railroad crossing after seeing
the train."
The argument of the appellant which is devoted to this
findings seems to admit impliedly at least that the driver of
the automobile maintained his rate of speed as he
approached and went upon the railroad crossing; and that he
took no precaution to ascertain the approach of a
train.1awphil.net
The appellant contended on the trial and offered evidence to
prove that, on approaching the railroad crossing from the
direction in which the automobile was travelling at the time,
the view of the railroad tracks in both directions was
obstructed by bushes and trees growing alongside thereof,
and that it was impossible for a person approaching the
crossing even though on guard, to detect by sight the
approach of a train. If that were the case, it was clearly the
duty of the driver to reduce the speed of his car and the noise
thereof to such an extent that he would be able to determine
from the unrestricted and uninterrupted use of all his faculties
whether or not a train was near. It is the law that a person
must use ordinary care and prudence in passing over a
railroad crossing. While we are not prepared to lay down any
absolute rule as to what precise acts of precaution are
necessary to be done or left undone by a person who may
have need to pass over a railroad crossing, we may say that it
is always incumbent on him to use ordinary care and
diligence. What acts are necessary to constitute such care and
diligence must depend on the circumstances of each
particular case. The degree of care differs in different cases.
Greater care is necessary in crossing a road where the cars
are running at a high rate of speed and close together than
where they are running at less speed and remote from one
another. But in every case due care should be exercised. It is
very possible that where, on approaching a crossing, the view
of the tracks in both directions is unobstructed for such a
distance as to render it perfectly safe to pass over without the
use of any other faculty than sight, such use alone is sufficient
and it is not necessary to stop or even to slacken speed or
listen. On the other hand, where the view of the tracks is
obstructed, them it is driver's duty to slacken speed, to reduce
the noise, if any, of the vehicle, to look and to listen, if
necessary, or do any other act necessary to determine that a
train is not in dangerous proximity to the crossing.

In the case at bar the appellant's own showing is to the effect

that the view of the track in the direction from which the train
was coming was obstructed in such manner that neither the
track nor a train could be seen as a traveler approached the
crossing; and yet, in spite of that fact, the chauffeur drove
upon the tracks without investigation or precaution of any
kind. The very fact that a train was approaching and was so
near as to collide with the automobile is strong evidence of
the fact that no precautions were taken to determine that
fact. It is undoubted that if the driver had taken the simplest
means of permitting his own faculties to exercise themselves
fairly, there would have been no accident, as the presence of
the train would have been discovered in an instant; but he
chose, rather, to give his senses no opportunity to protect him
or his passengers and drove on the track at full speed with all
the noise which an automobile produces at such speed on an
upgrade and the sense of hearing impaired by the rush of the
wind. Railroad trains rarely pass over tracks without noise and
their presence, generally speaking, is easily detected by
persons who take ordinary precautions.
Under this assignment the appellant's main effort is being to
the demonstration of the fact that there was a custom
established among automobile drivers of Manila by which they
habitually drove their cars over railroad crossings in the
manner in which the automobile was driven by defendant's
servant on the occasion in controversy. To prove that custom
counsel presents the evidence of the president of the
defendant company, Mr. Bachrach, who testified on the trial
that all of his drivers, including the one in charge of the car on
the night of the accident, operated cars in that manner and
that it was the custom among automobile drivers generally.
Counsel also cites the testimony of the witness Palido, living
near the scene of the accident, who testified that, as a
general rule, automobiles passed over the railroad crossing
without changing speed. This testimony was corroborated by
the defendant company's driver who had the automobile in
charge at the time of the occurrence. Basing himself on this
alleged custom counsel contends that "When a person does
what is usual and customary, i. e., proceeds as he and others
engaged in a like occupation have been accustomed to
proceed, the action cannot be characterized as reckless, nor,
strictly speaking as negligent." To this the obvious reply may
be made, for the moment admitting the existence of the
custom, that a practice which is dangerous to human life
cannot ripen into a custom which will protect anyone who
follows it. To go upon a railroad crossing without making any
effort to ascertain the approach of a train is so hazardous an
act and one so dangerous to life, that no one may be
permitted to excuse himself who does it, provided injury
result. One who performs an act so inherently dangerous
cannot, when an accident occurs, take refuge behind the plea
that others have performed the same act safely.
Under the second error assigned, the appellant contends with
much vigor that the plaintiffs cannot recover for the reason
that the negligence of the driver of the automobile, if any, was
imputable to them, they having permitted the driver to
approach and pass over the railroad crossing without the use
of ordinary care and diligence to determine the proximity of a
train or locomotive, and having made no effort to caution or
instruct him or compel him to take reasonable care in making
the crossing. With this contention we cannot agree. We think
the better rule, and one more consonant with the weight of
authority, is that a person who hires a public automobile and
gives the driver direction as to the place to which he wishes to
be conveyed, but exercise no other control over the conduct
of the driver, is not responsible for acts of negligence of the
latter or prevented from recovering for injuries suffered from a
collision between the automobile and a train, caused by the
negligence either of the locomotive engineer or the
automobile driver. (Little vs. Hackett, 116 U.S., 366.) The
theory on which the negligence of the driver has in some
instances been imputed to the occupant of the vehicle is that,
having trusted the driver by selecting the particular
conveyance, the plaintiff so far identified himself with the

owner and his servants that, in case of injury resulting from

their negligence, he was considered a party thereto. This was
the theory upon which the case of Thorogood vs. Bryan (8
C.B., 115) was decided, which is the leading case in favor of
the principle contended for by appellant. The Supreme Court
of the United States, however, in Little vs. Hackett (116 U.S.,
366), had this to say concerning the ground on which the
Thorogood case was decided: "The truth is, the decision in
Thorogood vs. Bryan rests upon indefensible ground. The
identification of the passenger with the negligent driver or the
owner, without his personal cooperation or encouragement, is
a gratuitous assumption. There is no such identity. The parties
are not in the same position. The owner of public conveyance
is a carrier, and the driver or the servant of the passenger,
and his asserted identity with them is contradicted by the
daily experience of the world."
Further discussing the same question the court said: "There is
no distinction in principle whether the passenger be on public
conveyance like a railroad train or an omnibus, or be on a
hack hired from a public stand in the street for a drive. Those
on a hack do not become responsible for the negligence of the
driver if they exercise no control over him further than to
indicate the route they wish to travel or the places to which
they wish to go. If he is their agent so that his negligence can
be imputed to them to prevent their recovery against a third
party, he must be their agent in all other respects, so far as
the management of the carriage is concerned, and
responsibility to third parties would attach to them for injuries
caused by his negligence in the course of his employment.
But, as we have already stated, responsibility cannot, within
any recognized rules of law, be fastened upon one who has in
no way interfered with and the with and controlled in the
matter causing the injury. From the simple fact of hiring the
carriage or riding in it no such liability can arise. The party
hiring or riding must in some way have cooperated in
producing the injury complained of before he incur any
liability for it. 'If the law were otherwise,' as said by Mr. Justice
Depue in his elaborate opinion in the latest case in New
Jersey, 'not only the hirer of the coach but also all the
passengers in it would be under a constraint to mount the box
and superintend the conduct of the driver in the management
and control of his team, or be put for remedy exclusively to an
action against the irresponsible driver or equally irresponsible
owner of a coach taken, it may be, from a coach stand, for the
consequences of an injury which was the product of the
cooperating wrongful acts of the driver and of a third person,
and that too, though the passengers were ignorant of the
character of the driver, and of the responsibility of the owner
of the team, and strangers to the route over which they were
to be carried.' (New York, Lake Erie & Western Railroad vs.
Steinbrenner, 47 N.J.L. [18 Vroom], 161, 171.)"
We are of the opinion, therefore, that the rule is as we have
stated it. Ordinarily where one rides in public vehicle with the
driver thereof and is injured by the negligence of a third
person, to which negligence that of the driver contributes his
contributory negligence is not imputable to the passenger
unless said passenger has or is in the position to have and
exercise some control over the driver with reference to the
matter wherein he was negligent. Whether the person injured
exercises any control over the conduct of the driver further
than to indicate the place to which he wishes to drive is a
question of fact to be determined by the trial court on all of
the evidence in the case. (Duval vs. Railroad Co., 134 N. C.,
331; Hampel vs. Detroit etc. R. R. Co., 110 Am. St. Rep., 275;
Cotton vs. Willmar etc. R. R. Co., 99 Minn., 366; Shultz vs. Old
Colony Street Ry. Co., 193 Mass., 309; Wilson vs. Puget Sound
Elec. Ry. Co., 52 Wash., 522; Johnson vs. Coey, 237 Ill., 88;
Hindu vs. Steere, 209 Mass. 442.)
The appellant assigns as the third error the finding of the trial
court "that the defendant Manila Railroad Company was not
guilty of negligence which contributed to the causing of the
accident complained of."

In this connection it appears that, prior to the beginning of the

action now before us, two actions were instituted, both
growing out of the accident which forms the basis of the
actions before us: (1) A criminal action against the engineer of
the train, in which the engineer was acquitted; and (2) a civil
action for damages by the garage and taxicab company, the
appellant herein, against the defendant railroad company, for
damages to the automobile which was destroyed as a result of
the accident, in which judgment was for defendant. There is
evidence in the record showing that the locomotive engineer
gave due and timely signals on approaching the crossing in
question. The trial court found that the employees of the
railroad company fully performed their duty as the train
approached the crossing on the night in question and that,
therefore, the railroad company in nowise contributed to the
accident. We do not believe that the record will justify us in a
reversal of this finding. There is abundant evidence to support
it and we have nothing before us by which that evidence may
be impeached. That the bell was rung and the whistle was
blown on nearing the crossing, giving due and timely warning
to all persons approaching, was testified to not only by
servants of the corporation but by passengers on the train.
We find nothing in the record which materially impairs the
credibility of these witnesses or to show that their evidence is
improbable or unreasonable; and we would be going far under
such circumstances in discarding it and reversing a judgment
based thereon.
The appellant under this assignment of error presents other
facts which he claims show necessarily that the company was
negligent. He asserts: "(1) That this accident occurred in the
heart of the barrio of San Juan (Cavite Viejo), within
approximately one hundred meters of the railroad station,
that is, in a populous community; (2) that the railroad
company did not maintain either a flagman or protecting
gates at the grade crossing where the accident occurred,
while the sign "Railroad Crossing" was broken on the side
toward the road; (3) that trees and undergrowth had been
permitted to grow on and adjoining the right of way and
houses were constructed thereon, in such manner as to
obstruct the view of persons approaching the railroad track
until within a few meters thereof; and (4) that the approach to
the crossing is twisting, and on either side thereof are ditches
about two meters deep."
With respect to the existence of trees and undergrowth on the
railroad company's right of way, the evidence is conflicting,
plaintiff maintaining and attempting to prove that such trees
and undergrowth existed, while defendant company
contended and offered evidence to show that no such growth
existed at the time of the accident. On this conflict of
evidence the trial court found: "Evidence on the part of the
defendant Bachrach Garage & Taxicab Co. is to the effect that
the view from the crossing along the track towards Manila was
obstructed by bushes growing on the railroad right to way
along the track, while the preponderance of the evidence
discloses that for a distance of twelve or fifteen meters from
the a view of the track for a considerable distance is wholly
unobstructed, and I can but conclude that the driver of the
unobstructed, and I can but conclude that the driver of the
automobile was grossly negligent and careless in not taking
such precaution as would have notified him of the coming of
the train. On the contrary, he proceeded with reckless speed
and regardless of possible or threatened danger."
Here again we are met with a contradiction in the evidence of
witnesses who, so far as appears, are equally entitled to
credit, which conflict has been resolved by the trial court in
favor of the witnesses for the defendant railroad company.
Counsel for appellant has failed to give any reason why we
should we should accept the testimony of appellant's
witnesses rather than those of the railroad company and he
has also neglected to point out any error committed by the
trial court in making its finding in this regard. A careful
examination of the record discloses no reason why the

judgment of the trial court on this point should be disturbed,

there appearing nothing on which we could base a judgment
declaring that the trial court erred in making its decision.
As to the other facts set forth on which appellant predicates
negligence on the part of the railroad company, we find them,
even if admitted, to be insufficient to establish negligence. It
is not negligence on the part of the railroad company to
maintain grade crossing, even in populous district; nor is it
negligence not to maintain a flagman at such crossing. It is
true that a railroad company is held to greater caution in the
more thronged streets of the densely populated portions of
the city than in the less frequented streets in suburban parts
or in towns; but this does not mean that it is negligence to
maintain grade crossing in such densely populated portions or
that it is negligence not to maintain a flagman at crossings
located in such districts. It simply means that the company in
operating its trains over such crossings must exercise care
commensurate with the use of crossings in any given locality.
The main contention of the appellant is based on the claim
that, even admitting as proved all of the facts alleged by the
plaintiffs, the appellant is not liable. It is maintained that up to
the time the accident occurred the defendant taxicab
company had fully performed its duty to the public, it being
undisputed in the record that the driver was competent and
had a long and satisfactory record, having driven cars for the
defendant for 5 or 6 years without accident or misadventure,
and that his negligence, if any, in attempting to pass over the
crossing on the occasion before us, cannot legally be imputed
to the taxicab company so as to make it liable for the
damages resulting therefrom. In supporting of this argument
the case of Johnson vs. David (5 Phil., Rep., 663), is cited as
determinative of the question under consideration. The
appellant, however, having denied the fact of negligence, we
might, before entering on a discussion of the applicability of
the principles enunciated in Johnson vs. David to the facts
before us, repeat what we have already said, that it appears
from the record, and was found by the trial court, that the
driver of the automobile drove his machine upon the railroad
tracks without observing the precautions which ordinary care
and prudence would have required. He made substantially no
effort toward ascertaining whether there was danger from a
train or locomotive. The trial court found, as was quite
necessary under the facts, that the driver was guilty of gross
negligence and that such negligence was the proximate cause
of the accident. It also found that the taxicab company had
permitted its drivers to approach and pass over railroad tracks
in the manner and form followed and observed on the
occasion in question until it had become a custom among its
drivers, known and sanctioned by the company; and that, for
that reason, the taxicab company was liable for the damages
caused. We are of the opinion that the trial court is fully
supported in the finding that the conduct of the officials of the
taxicab company, and notably the president thereof,
amounted, in law, to a sanction of the custom established
among its automobile drivers in passing over railroad
crossings. Counsel is met, therefore, at the opening of his
discussion on this branch of the case, with the question: Did
the defendant taxicab company fully discharge its duty when
it furnished a suitable and proper car and selected driver who
had been with the company for 5 or 6 years and who had not
had an accident or misadventure before? We think not. It was
the duty of the company not only to furnish a suitable and
proper car and select a competent operator, but also to
supervise and, where necessary, instruct him properly.
Returning now to the applicability of the case of Johnson vs.
David to the facts before us:
The Civil Code, in dealing with the liability of a master for the
negligent acts of his servant, makes a distinction between
private individuals and public enterprises. (Art. 1903, Civil
Code.) That article, together with the preceding article, is as
follows:itc-a1f

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 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.
Guardians are liable for the damages caused by
minors or incapacitated persons who are under their
authority and live with them.
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 on account of their
duties.
The State is liable in this sense when it acts through
a special agent, but not when the damage should
have been caused by the official to whom properly it
pertained to do the act performed, in which case the
provisions of the proceeding article shall be
applicable.
Finally, master or directors of arts and trades are
liable for the damages caused by their pupils or
apprentices while they are under their custody.
The liability referred to in this articles 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.
These two articles are found under chapter 2, title 16, of the
Civil Code, dealing with "obligations which arise from fault or
negligence;" and set out the cases, generally speaking, in
which the master is liable for the acts of his servant. That
chapter also contains articles providing for liability for
negligent acts of servants in special cases, among them 1905,
which provides that "the possessor of an animal, or the one
who uses it, is liable for the damages it may cause even when
said animal escapes from him or strays," but that this liability
shall cease "in the case the damage should arise from force
majeure or from the fault of the person who may have
suffered it;" 1906, which declares that "the owner of a game
preserve shall be liable for damages caused by the game to
neighboring estates, should he not have done what may have
been necessary to avoid increase of the same or should he
have hindered the efforts of the owners of said estates to
hunt;" 1907, which provides for the liability of the owner of a
building "for damages which may result from the collapse of
the whole or a part thereof, if it should occur through the
absence of necessary repairs;" 1908, which states that
"owners shall be liable for damages caused by the explosion
of machines which may not have been cared for with due
diligence, and been placed in a safe and proper place;" "by
excessive smoke, which may be noxious to persons of
property;" "by the fall of trees, located in places of transit,
when not caused by force majeure;" "by the emanations of
sewers or deposits of infectious matters, when constructed
without precautions proper for the place where they are
located;" and "the head of a family who dwells in a house, or
in a part of the same, is liable for the damages by the things
which may be thrown or which may fall therefrom."

These are the only cases under the Civil Code in which
damages may be recovered from the master for the negligent
of his servant. As is seen from a reading of article 1903, a
person being driven about by his servant's negligent acts
except under certain circumstances. (Chapman vs.
Underwood, 27 Phil., Rep., 374; Johnson vs. David, supra.) On
the other hand, 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.
The distinction made in the Code has been observed, as
would naturally be expected, by the decisions of this court. In
the case of Johnson vs. David, supra, we held that the
defendant was not liable for the acts of his servant in
negligently driving a horse and carriage against plaintiff, who
was at the time riding a bicycle in the streets of Manila,
throwing him to the ground and injuring him and his bicycle. It
appeared in that case that the vehicle was owned by the
defendant, that it was being driven by the defendant's
coachman on the private affairs of the owner, that it was not a
public conveyance driven for hire or as a part of a business or
enterprise. In that case we said: "It would seem, from an
examination of these various provisions, that the obligation to
respond for the negligent acts of another was limited to the
particular cases mentioned; in other words, we are of the
opinion and so hold that it was the intention of the legislature
in enacting said chapter 2 to enumerate all the persons for
whose negligent acts third persons are responsible. Article
1902 provides when a person himself is liable for negligence.
Articles 1903, 1904, 1905, 1906, 1907, 1908, and 1910
provide when a person shall be liable for injuries caused, not
by his own negligence but by the negligence of other persons
or things.
xxx xxx xxx
These sections do not include a liability on the part of the
plaintiff for injuries resulting from acts of negligence such as
are complained of in the present cause . . . ."
These case of Chapman vs. Underwood, (27 Phil., Rep., 374)
was similar in its facts and the principles governing it, to that
of Johnson vs. David. In that case the plaintiff, while about to
board a street car, was struck by an automobile which, at the
time, was being driven on the wrong side of the street. The
automobile was in charge of the servant of the owner, who
was present in the automobile at the time the accident
occurred. The automobile was not a part of defendant's
business nor was it being used at the time as a part or adjunct
of any business or enterprise owned or conducted by him.
Although the act of the driver was negligent, and was so
declared by this court, it was, nevertheless, held that the
master was not liable for the results of the act. We said:
The defendant, however, is not responsible for the
negligence of his driver, under the facts and
circumstances of this case. As we have said in the
case of Johnson vs. David (5 Phil., Rep., 663), the
driver does not fall within the list of person in article
1903 of the Civil Code for whose acts the defendant
would be responsible.
Although in the David case the owner of the vehicle
was not present at the time the alleged negligent
acts were committed by the driver, the same rule
applies where the owner is present, unless the
negligent acts of the driver are continued for such a
length of time as to give the owner a reasonable
opportunity to observe them and to direct his driver
to desist therefrom. An owner who sits in his
automobile, or other vehicle, and permits his driver
to continue in a violation of the law by the

performance of negligent acts, after he has had a

reasonable opportunity to observe them and to direct
that the driver, becomes himself responsible for such
acts. The owner of an automobile who permits his
chauffeur to drive up the Escolta, for example, at a
speed of 60 miles an hour, without any effort to stop
him, although he has had a reasonable opportunity
to do so, becomes himself responsible, both
criminally and civilly, for the results produced by the
acts of his chauffeur. On the other hand, if the driver,
by a sudden act of negligence, and without the
owner having a reasonable opportunity to prevent
the act or its continuance, injures a person or
violates the criminal law, the owner of the
automobile, although present therein at the time the
act was committed, is not responsible, either civilly
or criminally, therefor. The act complained of must be
continued in the presence of the owner for such a
length of time that the owner, by his acquiescence,
makes his driver's act his own.
In the case before us it does not appear from the
record that, from the time the automobile took the
wrong side of the road to the commission of the
injury, sufficient time intervened to afford the
defendant an opportunity correct the act of his driver.
Instead, it appears with fair clearness that the
interval between the turning out to meet and pass
the street car and the happening of the accident was
so short as not to be sufficient to charge defendant
with the negligence of the driver.
The case of Bahia vs. Litonjua and Leynes (30 Phil., Rep.,
624), was a case of a different character. There an automobile
was being operated by the defendant as a public vehicle
carrying passengers from Balayan to Tuy (Province of
Batangas) and return for hire. On one to the trips, the
machine, by reason of a defect in the steering gear, refused to
respond to the guidance of the driver and, as a result a child
was run over and killed. That case, as is seem at a glance, is
quite different from the case of Johnson vs. David and that of
Chapman vs. Underwood, in that the automobile was operated
as a business or enterprise on which the defendant had
entered for gain; and this is the particular distinction which is
made in article 1903 of the Civil Code which holds the masters
responsible for the negligent acts of the servant when the
master is the owner "of an establishment or enterprise," and
the acts complained of are committed within the scope of the
servant's employment in such business. In the case under
discussion we held that, in addition to the requirement to
furnish and use proper and safe machines, it was the duty of a
person or corporation operating automobiles for hire to
exercise ordinary care and diligence in the selection of the
drivers of his or its automobiles and in supervision over them
while in his or its employ, including the promulgation of
proper rules and regulations and the formulation and due
publication of proper instructions for their guidance in cases
where such rules, regulations and the formulation and due
publication of proper instructions for their guidance in cases
where such rules, regulations and instruction are necessary.
Discussion article 1903 of the Civil Code, which, as we have
seen, not only established liability in case of negligence but
also provides when that liability ceases, the court in that case
said:
From this article two things are apparent: (1) That
when an injury is caused by the negligence of a
servant or employee there instantly arises a
presumption of law that there was negligence on the
part of the master or employer either in the selection
of the selection of the servant or employee or in
supervision over him after the selection, or both; and
(2) that that presumption is juris tantum and not juris
et de jure and consequently may be rebutted. It
follows necessarily that if the employer shows to the

satisfaction of the court that in selection and

supervision he has exercised the care and diligence
of a good father of a family, the presumption is
overcome and he is relieved from liability.
This theory bases the responsibility of the master
ultimately on his own negligence and not on that of
his servant. This is the notable peculiarity of the
Spanish law of negligence. It is, of course, in striking
contrast to the American doctrine that, in relations
with strangers, the negligence of the servant is
conclusively the negligence of the master.
In the case before us the death of the child caused
by a defect in the steering gear of the automobile
immediately raised the presumption that Leynes was
negligent in selecting a defective automobile or in his
failure to maintain it in good condition after selection
and the burden of proof was on him to show that he
had exercised the care of a good father of a family.
In that case we further said: "From the commencement of the
use of the machine until the accident occurred sufficient time
had not elapsed to require an examination of the machine by
the defendant as a part of his duty of inspection and
supervision. While it does not appear that the defendant
formulated rules and regulations for the guidance of the
drivers and gave them proper instructions, designed for the
protection of the public and the passengers, the evidence
shows, as we have seen, that the death of the child was not
caused by a failure to promulgate rules and regulations. It was
caused by a defect in the machine as to which the defendant
has shown himself free from responsibility."
We, therefore, see that taxicab company did not perform its
full duty when it furnished a safe and proper car and a driver
with a long and satisfactory record. It failed to comply with
one of the essential requirements of the law of negligence in
this jurisdiction, that of supervision and instruction, including
the promulgation of proper rules and regulations and the
formulation and publication of proper instructions for their
guidance in cases where such rules and regulations and
instructions are necessary. To repeat, it was found by the trial
court, and that finding is fully sustained by the record, that it
was the custom of the driver who operated the machine on
the night of the accident, to approach and pass over railroad
crossings without adequate precautions, and that such
custom was known to and had been sanctioned by the
officials of the taxicab company, the president of the company
testifying that none of its drivers, especially the one who
operated the car on the night of the accident, were
accustomed to stop or even reduce speed or take any other
precaution in approaching and passing over railroad crossings,
no matter of what nature, unless they heard "the signal of a
car." He testified that he himself had ridden behind several of
his drivers, among them the one who handled the automobile
on the night of the accident, and that it was settled practice,
to which he made no objection and as to which he gave no
instructions, to approach and pass over railroad crossings
without any effort to ascertain the proximity of a train. These
facts and circumstances bring the case within the doctrine
enunciated in the Litonjua case to which reference has already
been made, and, at the same time, remove it from that class
of cases governed by Johnson vs. David. Not only has the
defendant taxicab company failed to rebut the presumption of
negligence arising from the carelessness of its servant, but it
has, in effect, made those negligent acts its own by having
observed and known the custom of its drivers without
disapproving it and without issuing instructions designed to
supersede it.
We are of the opinion that the trial court erred in fixing the
amount of damages which the plaintiffs suffered. Under the
law, each of the plaintiffs, is entitled to recover the time,

doctors' bills and hospital bills and hospital bills and

medicines, and any other item of expense which it was found
necessary to undergo by reason of the damages sustained.
The plaintiff Butaro Yamada is entitled to be reimbursed for his
hospital bill of P49, for the P50 which he paid to Dr. Strahan,
and for the loss of time which he suffered at the rate of P100
a month. The trial court allowed him for certain alleged fees of
doctors and expenses in hospitals and at hot springs in Japan.
He was also allowed P150 alleged by him to have been paid to
a Japanese doctor in Manila. We do not believe that the record
warrants these allowances. As to the expenses in Japan, we
may say that the injury occurred to plaintiff on the 2nd of
January and he remained in Manila for nearly 6 months before
going to Japan. According to the testimony of Dr. Strahan the
plaintiff was in good physical condition long before he left this
country for Japan. His testimony is to the effect that the
plaintiff suffered no permanent injuries, the damage being
limited to temporary shocks and bruises, and that he would be
ready for his usual occupation in about 3 months. According to
plaintiff's own testimony he went back to work 2 months after
the injury, but, claiming he still felt pains, went to Japan. We
do not believe that we ought to accept the plaintiff's bare
statement as to his physical condition after leaving the
Philippine Islands in defiance of the testimony of Dr. Strahan
as to his physical condition 3 months after the injury was
received and particularly in view of the fact that he returned
to work at the end of 2 months. As to the P150 alleged to
have been paid to a Japanese doctor in Manila, we have grave
doubts whether he had sufficiently proved that item of
expenditure. He does not give the name of the physician to
whom he paid the money and he presents no receipt or
voucher from the person whom he paid. He made no
memorandum of the payment at the time or of the person to
whom he paid it or of the date on which it was paid. All of his
testimony relating to the items which constitute his damage
was based on a memorandum made from memory on the
morning of the trial. It seems to us that where the sources of
knowledge are to so large an extent within the knowledge and
control of the person who presents the evidence, he should be
held rather strictly to presenting the best evidence that the
circumstances permit. If he had offered the Japanese doctor
as a witness or if he had even produced receipts from him, the
matter would have borne quite a different aspect.
We are accordingly of the opinion that the judgment in favor
of this plaintiff should consist simply of the loss of time,
amounting to 2 months at P100 a month, his hospital bill of
P49 and his doctor's bill of P50, in all P299, with costs.
With respect to the plaintiff Takutaru Uyehara, the judgment in
his favor must be also modified. Concerning his condition we
have substantially the same testimony by the same doctor
that we had in the case of Yamada. There were no permanent
injuries. The plaintiff suffered merely from shock and bruises.
He was quite recovered in 3 months. It appears that he was
earning P200 a month at the time of his injury and that his
hospital expense, including attendance of a physician, was
P350. We are satisfied from the record that he is entitled to
P600 for 3 months' loss of wages and to P350 for hospital
expenses and medical attendance. As to the claim for P150
paid to a Japanese doctor, we have in substance the same
circumstances found in connection with the claim of the
plaintiff Yamada, no name, no date, no memorandum, no
receipt; nothing but the testimony of the plaintiff himself
based upon date prepared from memory. It is worthy of note
also that both this plaintiff and plaintiff Yamada claim to have
paid exactly the same amount to Japanese doctors in Manila.
Judgment is hereby rendered in favor of the plaintiff Takutaru
Uyehara for the sum of P950, and costs.
With respect to the judgment in favor of the plaintiff Kenjiro
Karabayashi, we are clear that it must be reduced in amount.

This plaintiff was able, immediately after the accident

occurred, to move about readily an to assist his injured
companions. He did not go to a hospital, or, so far as
appeared, consult a physician until some time after the
accident. He alleges that he paid to Japanese doctors P310
and to massage doctors P130, and that he paid P365 for
medicines. The injury was received on the 2d of January,
1913, and this caution was commenced in October of the
same year. It seem to us incredible that the plaintiff, who
suffered and suffers from no physical injury testified to by any
physician, should have paid out during that time more than
P800 for medicines and doctors. That sum exceeds the sums
claimed to have been paid out by the other plaintiffs, who
were so badly injured that they were carried in a
semiconscious condition to the hospital and were unable to
move without assistance for some days.
This plaintiff complains of loss of memory as the only result of
his injuries and claims that he is unable to obtain a salary
equivalent to that which he was receiving before the accident.
He presents no evidence of such loss of memory except his
own statement, his physical condition at the time of the trial
being apparently perfect and there being at that time no
evidence, as he himself admitted, of loss of memory. He
presented no doctor to testify as to services rendered, indeed,
he does not even furnish the name of the person to whom the
money was paid, and he shows no receipts and produces no
evidence except his own statement with respect to the
amount paid out for medicines. We believe that, under this
testimony, no damages should be allowed to this plaintiff
except possibly salary for the short period during which, by
reason of shock, he may have been unable to render active
service. He testified that he lost two and one-half months'
time, during which he did not work at all, and that his services
were worth P160 a month.
The judgment of the Court of First Instance with respect to this
plaintiff, Kenjiro Karabayashi, is modified and judgment in his
favor and against the Bachrach Garage & Taxicab Co. for P400
is hereby decreed, with costs.
It may be urged that the reductions in the amounts allowed
the several plaintiffs by the trial court are arbitrary, the
evidence as to the damages sustained being uncontradicted
and the trial court having based its judgment thereon. It is
clear, however, that we are in no way interfering with the rule
so many times laid down by this court that we will not
interfere with the judgment of the trial court as to the
credibility of witnesses except where it appears that the court
overlooked or misapplied facts or circumstances of weight and
influence appearing in the case. Here the trial court seems to
have overlooked those facts and circumstances top which we
have adverted and which we have made the basis of the
modification. It nowhere appears in the decision of the trial
court or elsewhere in the record that it took any of those facts
and circumstances into consideration. So ordered.
G.R. No. L-39587

March 24, 1934

ALEKO E. LILIUS, ET AL., plaintiffs-appellants,

vs.
THE MANILA RAILROAD COMPANY, defendant-appellant.
Harvey and O'Brien for plaintiffs-appellants.
Jose C. Abreu for defendant-appellant.
VILLA-REAL, J.:

This case involves two appeals, one by the defendant the

Manila Railroad Company, and the other by the plaintiffs Aleko
E. Lilius et al., from the judgment rendered by the Court of
First Instance of Manila, the dispositive part of which reads as
follows:
Wherefore, judgment is rendered ordering the
defendant company to pay to the plaintiffs, for the
purposes above stated, the total amount of P30,865,
with the costs of the suit. And although the suit
brought by the plaintiffs has the nature of a joint
action, it must be understood that of the amount
adjudicated to the said plaintiffs in this judgment, the
sum of P10,000 personally belongs to the plaintiff
Sonja Maria Lilius; the sum of P5,000, to the plaintiff
Brita Marianne Lilius; the sum of P250, to Dr. Marfori
of the Calauan Hospital, Province of Laguna, and the
balance to the plaintiff Aleko E. Lilius.
In support of its appeal, the appellant the Manila Railroad
Company assigns nine alleged errors committed by the trial
court in its said judgment, which will be discussed in the
course of this decision.
As a ground of their appeal, the appellants Aleko E. Lilius et
al., in turn, assign two alleged errors as committed by the
same court a quo in its judgment in question, which will be
discussed later.
This case originated from a complaint filed by Aleko E. Lilius et
al., praying, under the facts therein alleged, that the Manila
Railroad Company be ordered to pay to said plaintiffs, by way
of indemnity for material and moral damages suffered by
them through the fault and negligence of the said defendant
entity's employees, the sum of P50,000 plus legal interest
thereon from the date of the filing of the complaint, with
costs.
The defendant the Manila Railroad Company, answering the
complaint, denies each and every allegation thereof and, by
way of special defense, alleges that the plaintiff Aleko E.
Lilius, with the cooperation of his wife and coplaintiff,
negligently and recklessly drove his car, and prays that it be
absolved from the complaint.
The following facts have been proven at the trial, some
without question and the others by a preponderance of
evidence, to wit:
The plaintiff Aleko E. Lilius has, for many years, been a wellknown and reputed journalist, author and photographer. At the
time of the collision in question, he was a staff correspondent
in the Far East of the magazinesThe American Weekly of New
York and The Sphere of London.
Some of his works have been translated into various
languages. He had others in preparation when the accident
occurred. According to him, his writings netted him a monthly
income of P1,500. He utilized the linguistic ability of his wife
Sonja Maria Lilius, who translated his articles and books into
English, German, and Swedish. Furthermore, she acted as his
secretary.

At about 7 o'clock on the morning of May 10, 1931, the

plaintiff, his wife Sonja Maria Lilius, and his 4-year old
daughter Brita Marianne Lilius, left Manila in
their Studebaker car driven by the said plaintiff Aleko E.
Lilius for the municipality of Pagsanjan, Province of Laguna,
on a sight-seeing trip. It was the first time that he made said
trip although he had already been to many places, driving his
own car, in and outside the Philippines. Where the road was
clear and unobstructed, the plaintiff drove at the rate of from
19 to 25 miles an hour. Prior thereto, he had made the trip as
far as Calauan, but never from Calauan to Pagsanjan, via
Dayap. He was entirely unacquainted with the conditions of
the road at said points and had no knowledge of the existence
of a railroad crossing at Dayap. Before reaching the crossing
in question, there was nothing to indicate its existence and
inasmuch as there were many houses, shrubs and trees along
the road, it was impossible to see an approaching train. At
about seven or eight meters from the crossing, coming from
Calauan, the plaintiff saw an autotruck parked on the left side
of the road. Several people, who seemed to have alighted
from the said truck, were walking on the opposite side. He
slowed down to about 12 miles an hour and sounded his horn
for the people to get out of the way. With his attention thus
occupied, he did not see the crossing but he heard two short
whistles. Immediately afterwards, he saw a huge black mass
fling itself upon him, which turned out to be locomotive No.
713 of the defendant company's train coming eastward from
Bay to Dayap station. The locomotive struck the plaintiff's car
right in the center. After dragging the said car a distance of
about ten meters, the locomotive threw it upon a siding. The
force of the impact was so great that the plaintiff's wife and
daughter were thrown from the car and were picked up from
the ground unconscious and seriously hurt. In spite of the
efforts of engineer Andres Basilio, he was unable to stop the
locomotive until after it had gone about seventy meters from
the crossing.
On the afternoon of the same day, the plaintiff's entered St.
Paul's Hospital in the City of Manila where they were treated
by Dr. Waterous. The plaintiff Aleko E. Lilius suffered from a
fractured nose, a contusion above the left eye and a lacerated
wound on the right leg, in addition to multiple contusions and
scratches on various parts of the body. As a result of the
accident, the said plaintiff was highly nervous and very easily
irritated, and for several months he had great difficulty in
concentrating his attention on any matter and could not write
articles nor short stories for the newspapers and magazines to
which he was a contributor, thus losing for some time his only
means of livelihood.
The plaintiff Sonja Maria Lilius suffered from fractures of the
pelvic bone, the tibia and fibula of the right leg, below the
knee, and received a large lacerated wound on the forehead.
She underwent two surgical operations on the left leg for the
purpose of joining the fractured bones but said operations
notwithstanding, the leg in question still continues deformed.
In the opinion of Dr. Waterous, the deformity is permanent in
character and as a result the plaintiff will have some difficulty
in walking. The lacerated wound, which she received on her
forehead, has left a disfiguring scar.
The child Brita Marianne Lilius received two lacerated wounds,
one on the forehead and the other on the left side of the face,
in addition to fractures of both legs, above and below the
knees. Her condition was serious and, for several days, she
was hovering between life and death. Due to a timely and

successful surgical operation, she survived her wounds. The

lacerations received by the child have left deep scars which
will permanently disfigure her face, and because of the
fractures of both legs, although now completely cured, she
will be forced to walk with some difficulty and continuous
extreme care in order to keep her balance.
Prior to the accident, there had been no notice nor sign of the
existence of the crossing, nor was there anybody to warn the
public of approaching trains. The flagman or switchman
arrived after the collision, coming from the station with a red
flag in one hand and a green one in the other, both of which
were wound on their respective sticks. The said flagman and
switchman had many times absented himself from his post at
the crossing upon the arrival of a train. The train left Bay
station a little late and therefore traveled at great speed.
Upon examination of the oral as well as of the documentary
evidence which the parties presented at the trial in support of
their respective contentions, and after taking into
consideration all the circumstances of the case, this court is of
the opinion that the accident was due to negligence on the
part of the defendant-appellant company, for not having had
on that occasion any semaphore at the crossing at Dayap, to
serve as a warning to passers-by of its existence in order that
they might take the necessary precautions before crossing the
railroad; and, on the part of its employees the flagman and
switchman, for not having remained at his post at the crossing
in question to warn passers-by of the approaching train; the
stationmaster, for failure to send the said flagman and
switchman to his post on time; and the engineer, for not
having taken the necessary precautions to avoid an accident,
in view of the absence of said flagman and switchman, by
slackening his speed and continuously ringing the bell and
blowing the whistle before arriving at the crossing. Although it
is probable that the defendant-appellant entity employed the
diligence of a good father of a family in selecting its aforesaid
employees, however, it did not employ such diligence in
supervising their work and the discharge of their duties
because, otherwise, it would have had a semaphore or sign at
the crossing and, on previous occasions as well as on the
night in question, the flagman and switchman would have
always been at his post at the crossing upon the arrival of a
train. The diligence of a good father of a family, which the law
requires in order to avoid damage, is not confined to the
careful and prudent selection of subordinates or employees
but includes inspection of their work and supervision of the
discharge of their duties.
However, in order that a victim of an accident may recover
indemnity for damages from the person liable therefor, it is
not enough that the latter has been guilty of negligence, but it
is also necessary that the said victim has not, through his own
negligence, contributed to the accident, inasmuch as nobody
is a guarantor of his neighbor's personal safety and property,
but everybody should look after them, employing the care and
diligence that a good father of a family should apply to his
own person, to the members of his family and to his property,
in order to avoid any damage. It appears that the herein
plaintiff-appellant Aleko E. Lilius took all precautions which his
skill and the presence of his wife and child suggested to him
in order that his pleasure trip might be enjoyable and have a
happy ending, driving his car at a speed which prudence
demanded according to the circumstances and conditions of
the road, slackening his speed in the face of an obstacle and
blowing his horn upon seeing persons on the road, in order to

warn them of his approach and request them to get out of the
way, as he did when he came upon the truck parked on the
left hand side of the road seven or eight meters from the
place where the accident occurred, and upon the persons who
appeared to have alighted from the said truck. If he failed to
stop, look and listen before going over the crossing, in spite of
the fact that he was driving at 12 miles per hour after having
been free from obstacles, it was because, his attention having
been occupied in attempting to go ahead, he did not see the
crossing in question, nor anything, nor anybody indicating its
existence, as he knew nothing about it beforehand. The first
and only warning, which he received of the impending danger,
was two short blows from the whistle of the locomotive
immediately preceding the collision and when the accident
had already become inevitable.
In view of the foregoing considerations, this court is of the
opinion that the defendant the Manila Railroad Company
alone is liable for the accident by reason of its own negligence
and that of its employees, for not having employed the
diligence of a good father of a family in the supervision of the
said employees in the discharge of their duties.
The next question to be decided refers to the sums of money
fixed by the court a quo as indemnities for damages which the
defendant company should pay to the plaintiffs-appellants.
With respect to the plaintiff-appellant Aleko E. Lilius, although
this court believes his claim of a net income of P1,500 a
month to be somewhat exaggerated, however, the sum of
P5,000, adjudicated to him by the trial court as indemnity for
damages, is reasonable.
As to the sum of P10,635 which the court awards to the
plaintiffs by way of indemnity for damages, the different items
thereof representing doctor's fees, hospital and nursing
services, loss of personal effects and torn clothing, have duly
been proven at the trial and the sum in question is not
excessive, taking into consideration the circumstances in
which the said expenses have been incurred.
Taking into consideration the fact that the plaintiff Sonja Maria
Lilius, wife of the plaintiff Aleko E. Lilius is in the language
of the court, which saw her at the trial "young and beautiful
and the big scar, which she has on her forehead caused by
the lacerated wound received by her from the accident,
disfigures her face and that the fracture of her left leg has
caused a permanent deformity which renders it very difficult
for her to walk", and taking into further consideration her
social standing, neither is the sum of P10,000, adjudicated to
her by the said trial court by way of indemnity for patrimonial
and moral damages, excessive. In the case
of Gutierrez vs. Gutierrez (56 Phil., 177), the right leg of the
plaintiff Narciso Gutierrez was fractured as a result of a
collision between the autobus in which he was riding and the
defendant's car, which fractured required medical attendance
for a considerable period of time. On the day of the trial the
fracture had not yet completely healed but it might cause him
permanent lameness. The trial court sentenced the
defendants to indemnify him in the sum of P10,000 which this
court reduced to P5,000, in spite of the fact that the said
plaintiff therein was neither young nor good-looking, nor had
he suffered any facial deformity, nor did he have the social
standing that the herein plaintiff-appellant Sonja Maria Lilius
enjoys.1vvphi1.ne+

As to the indemnity of P5,000 in favor of the child Brita

Marianne Lilius, daughter of Aleko E. Lilius and Sonja Maria
Lilius, neither is the same excessive, taking into consideration
the fact that the lacerations received by her have left deep
scars that permanently disfigure her face and that the
fractures of both her legs permanently render it difficult for
her to walk freely, continuous extreme care being necessary
in order to keep her balance in addition to the fact that all of
this unfavorably and to a great extent affect her matrimonial
future.
With respect to the plaintiffs' appeal, the first question to be
decided is that raised by the plaintiff Aleko E. Lilius relative to
the insufficiency of the sum of P5,000 which the trial court
adjudicated to him by way of indemnity for damages
consisting in the loss of his income as journalist and author as
a result of his illness. This question has impliedly been
decided in the negative when the defendant-appellant entity's
petition for the reduction of said indemnity was denied,
declaring it to be reasonable.
As to the amount of P10,000 claimed by the plaintiff Aleko E.
Lilius as damages for the loss of his wife's services in his
business as journalist and author, which services consisted in
going over his writings, translating them into English, German
and Swedish, and acting as his secretary, in addition to the
fact that such services formed part of the work whereby he
realized a net monthly income of P1,500, there is no sufficient
evidence of the true value of said services nor to the effect
that he needed them during her illness and had to employ a
translator to act in her stead.
The plaintiff Aleko E. Lilius also seeks to recover the sum of
P2,500 for the loss of what is called Anglo-Saxon common law
"consortium" of his wife, that is, "her services, society and
conjugal companionship", as a result of personal injuries
which she had received from the accident now under
consideration.
In the case of Goitia vs. Campos Rueda (35 Phil., 252, 255,
256), this court, interpreting the provisions of the Civil
Marriage Law of 1870, in force in these Islands with reference
to the mutual rights and obligations of the spouses, contained
in articles 44-48 thereof, said as follows:
The above quoted provisions of the Law of Civil
Marriage and the Civil Code fix the duties and
obligations of the spouses. The spouses must be
faithful to, assist, and support each other. The
husband must live with and protect his wife. The wife
must obey and live with her husband and follow him
when he changes his domicile or residence, except
when he removes to a foreign country. . . .
Therefore, under the law and the doctrine of this court, one of
the husband's rights is to count on his wife's assistance. This
assistance comprises the management of the home and the
performance of household duties, including the care and
education of the children and attention to the husband upon
whom primarily devolves the duty of supporting the family of
which he is the head. When the wife's mission was
circumscribed to the home, it was not difficult to assume, by
virtue of the marriage alone, that she performed all the said
tasks and her physical incapacity always redounded to the
husband's prejudice inasmuch as it deprived him of her

assistance. However, nowadays when women, in their desire

to be more useful to society and to the nation, are demanding
greater civil rights and are aspiring to become man's equal in
all the activities of life, commercial and industrial, professional
and political, many of them spending their time outside the
home, engaged in their businesses, industry, profession and
within a short time, in politics, and entrusting the care of their
home to a housekeeper, and their children, if not to a
nursemaid, to public or private institutions which take charge
of young children while their mothers are at work, marriage
has ceased to create the presumption that a woman complies
with the duties to her husband and children, which the law
imposes upon her, and he who seeks to collect indemnity for
damages resulting from deprivation of her domestic services
must prove such services. In the case under consideration,
apart from the services of his wife Sonja Maria Lilius as
translator and secretary, the value of which has not been
proven, the plaintiff Aleko E. Lilius has not presented any
evidence showing the existence of domestic services and their
nature, rendered by her prior to the accident, in order that it
may serve as a basis in estimating their value.
Furthermore, inasmuch as a wife's domestic assistance and
conjugal companionship are purely personal and voluntary
acts which neither of the spouses may be compelled to render
(Arroyo vs. Vazquez de Arroyo, 42 Phil., 54), it is necessary for
the party claiming indemnity for the loss of such services to
prove that the person obliged to render them had done so
before he was injured and that he would be willing to continue
rendering them had he not been prevented from so doing.
In view of the foregoing considerations this court is of the
opinion and so holds: (1) That a railroad company which has
not installed a semaphore at a crossing an does not see to it
that its flagman and switchman faithfully complies with his
duty of remaining at the crossing when a train arrives, is
guilty of negligence and is civilly liable for damages suffered
by a motorist and his family who cross its line without
negligence on their part; (2) that an indemnity of P10,000 for
a permanent deformity on the face and on the left leg,
suffered by a young and beautiful society woman, is not
excessive; (3) that an indemnity of P5,000 for a permanent
deformity on the face and legs of a four-year old girl belonging
to a well-to-do family, is not excessive; and (4) that in order
that a husband may recover damages for deprivation of his
wife's assistance during her illness from an accident, it is
necessary for him to prove the existence of such assistance
and his wife's willingness to continue rendering it had she not
been prevented from so doing by her illness.
The plaintiffs-appellants are entitled to interest of 6 percent
per annum on the amount of the indemnities adjudicated to
them, from the date of the appealed judgment until this
judgment becomes final, in accordance with the provisions of
section 510 of Act No. 190.
Wherefore, not finding any error in the judgment appealed
from, it is hereby affirmed in toto, with the sole modification
that interest of 6 per cent per annum from the date of the
appealed judgment until this judgment becomes final will be
added to the indemnities granted, with the costs of both
instances against the appellant. So ordered.
Malcolm, Hull, Imperial, and Goddard, JJ., concur.

G.R. No. L-7664

August 29, 1958

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

vs.
METROPOLITAN WATER DISTRICT, defendant-appellee.
Tomas Tria Tirona for appellants.
Government Corporate Counsel Ambrosio Padilla and Juan C.
Jimenez for appellee.
BAUTISTA ANGELO, J.:
Plaintiffs spouses seek to recover from defendant, a
government-owned corporation, the sum of P50,000 as
damages, P5,000 as funeral expenses, and P11,000 as
attorneys' fees, for the death of their son Dominador Ong in
one of the swimming pools operated by defendant.
Defendant admits the fact that plaintiffs' son was drowned in
one of its swimming pools but avers that his death was
caused by his own negligence or by unavoidable accident.
Defendant also avers that it had exercised due diligence in
the selection of, and supervision over, its employees and that
it had observed the diligence required by law under the
circumstances.
After trial, the lower court found that the action of plaintiffs is
untenable and dismissed the complaint without
pronouncement as to costs. Plaintiffs took the case on appeal
directly to this Court because the amount involved exceeds
the sum of P50,000.
Defendant owns and operates three recreational swimming
pools at its Balara filters, Diliman, Quezon City, to which
people are invited and for which a nominal fee of P0.50 for
adults and P0.20 for children is charged. The main pool it
between two small pools of oval shape known as the "Wading
pool" and the "Beginners Pool." There are diving boards in the
big pools and the depths of the water at different parts are
indicated by appropriate marks on the wall. The care and
supervision of the pools and the users thereof is entrusted to
a recreational section composed of Simeon Chongco as chief,
Armando Rule, a male nurse, and six lifeguards who had taken
the life-saving course given by the Philippine Red Cross at the
YMCA in Manila. For the safety of its patrons, defendant has
provided the pools with a ring buoy, toy roof, towing line,
saving kit and a resuscitator. There is also a sanitary inspector
who is in charge of a clinic established for the benefit of the
patrons. Defendant has also on display in a conspicuous place
certain rules and regulations governing the use of the pools,
one of which prohibits the swimming in the pool alone or
without any attendant. Although defendant does not maintain
a full-time physician in the swimming pool compound, it has
however a nurse and a sanitary inspector ready to administer
injections or operate the oxygen resuscitator if the need
should arise.
In the afternoon of July 5, 1952, at about 1:00 o'clock,
Dominador Ong, a 14-year old high school student and boy
scout, and his brothers Ruben and Eusebio, went to
defendant's swimming pools. This was not the first time that
the three brothers had gone to said natatorium for they had
already been there four or five times before. They arrived at
the natatorium at about 1:45 p.m. After paying the requisite

admission fee, they immediately went to one of the small

pools where the water was shallow. At about 4:35 p.m.,
Dominador Ong told his brothers that he was going to the
locker room in an adjoining building to drink a bottle of coke.
Upon hearing this, Ruben and Eusebio went to the bigger pool
leaving Dominador in the small pool and so they did not see
the latter when he left the pool to get a bottle of coke. In that
afternoon, there were two lifeguards on duty in the pool
compound, namely, Manuel Abao and Mario Villanueva. The
tour of duty of Abao was from 8:00 to 12:00 in the morning
and from 2:00 to 6:00 in the afternoon, and of Villanueva from
7:30 to 11:30 a.m. and from 12:30 to 4:30 p.m. Between 4:00
to 5:00 that afternoon, there were about twenty bathers inside
the pool area and Manuel Abao was going around the pools
to observe the bathers in compliance with the instructions of
his chief.
Between 4:40 to 4:45 p.m., some boys who were in the pool
area informed a bather by the name of Andres Hagad, Jr., that
somebody was swimming under water for quite a long time.
Another boy informed lifeguard Manuel Abao of the same
happening and Abao immediately jumped into the big
swimming pool and retrieved the apparently lifeless body of
Dominador Ong from the bottom. The body was placed at the
edge of the pool and Abao immediately applied manual
artificial respiration. Soon after, male nurse Armando Rule
came to render assistance, followed by sanitary inspector
Iluminado Vicente who, after being called by phone from the
clinic by one of the security guards, boarded a jeep carrying
with him the resuscitator and a medicine kit, and upon
arriving he injected the boy with camphorated oil. After the
injection, Vicente left on a jeep in order to fetch Dr. Ayuyao
from the University of the Philippines. Meanwhile, Abao
continued the artificial manual respiration, and when this
failed to revive him, they applied the resuscitator until the two
oxygen tanks were exhausted. Not long thereafter, Dr. Ayuyao
arrived with another resuscitator, but the same became of no
use because he found the boy already dead. The doctor
ordered that the body be taken to the clinic.
In the evening of the same day, July 5, 1952, the incident was
investigated by the Police Department of Quezon City and in
the investigation boys Ruben Ong and Andres Hagad, Jr. gave
written statements. On the following day, July 6, 1952, an
autopsy was performed by Dr. Enrique V. de los Santos, Chief,
Medico Legal Division, National Bureau of Investigation, who
found in the body of the deceased the following: an abrasion
on the right elbow lateral aspect; contusion on the right
forehead; hematoma on the scalp, frontal region, right side; a
congestion in the brain with petechial subcortical hemorrhage,
frontal lobe; cyanosis on the face and on the nails; the lung
was soggy with fine froth in the bronchioles; dark fluid blood
in the heart; congestion in the visceral organs, and brownish
fluid in the stomach. The death was due to asphyxia by
submersion in water.
The issue posed in this appeal is whether the death of minor
Dominador Ong can be attributed to the negligence of
defendant and/or its employees so as to entitle plaintiffs to
recover damages.
The present action is governed by Article 2176 in relation to
Article 2080 of the new Civil Code. The first article provides
that "whoever by act or omission causes damage to another,
there being fault or negligence, is obliged to pay for the

damages done." Such fault or negligence is called quasidelict. Under the second article, this obligation is demandable
not only for one's own acts or omissions but also for those of
persons for whom one is responsible. In addition, we may
quote the following authorities cited in the decision of the trial
court:
"The rule is well settled that the owners of resorts to
which people generally are expressly or by
implication invited are legally bound to exercise
ordinary care and prudence in the management and
maintenance of such resorts, to the end of making
them reasonably safe for visitors" (Larkin vs. Saltair
Beach Co., 30 Utah 86, 83 Pac. 686).
"Although the proprietor of a natatorium is liable for
injuries to a patron, resulting from lack of ordinary
care in providing for his safety, without the fault of
the patron, he is not, however, in any sense deemed
to be the insurer of the safety of patrons. And the
death of a patron within his premises does not cast
upon him the burden of excusing himself from any
presumption of negligence" (Bertalot vs. Kinnare. 72
Ill. App. 52, 22 A. L. R. 635; Flora vs. Bimini Water
Co., 161 Cal. 495, 119 Pac. 661). Thus in Bertalot vs.
Kinnare, supra, it was held that there could be no
recovery for the death by drowning of a fifteen-year
boy in defendant's natatorium, where it appeared
merely that he was lastly seen alive in water at the
shallow end of the pool, and some ten or fifteen
minutes later was discovered unconscious, and
perhaps lifeless, at the bottom of the pool, all efforts
to resuscitate him being without avail.
Since the present action is one for damages founded on
culpable negligence, the principle to be observed is that the
person claiming damages has the burden of proving that the
damage is caused by the fault or negligence of the person
from whom the damage is claimed, or of one of his employees
(Walter A. Smith & Co. vs. Cadwallader Gibson Lumber Co., 55
Phil., 517). The question then that arises is: Have appellants
established by sufficient evidence the existence of fault or
negligence on the part of appellee so as to render it liable for
damages for the death of Dominador Ong?
There is no question that appellants had striven to prove that
appellee failed to take the necessary precaution to protect the
lives of its patrons by not placing at the swimming pools
efficient and competent employees who may render help at a
moment's notice, and they ascribed such negligence to
appellee because the lifeguard it had on the occasion minor
Ong was drowning was not available or was attending to
something else with the result that his help came late. Thus,
appellants tried to prove through the testimony of Andres
Hagad, Jr. and Ruben Ong that when Eusebio Ong and Hagad,
Jr. detected that there was a drowning person in the bottom of
the big swimming pool and shouted to the lifeguard for help,
lifeguard Manuel Abao did not immediately respond to the
alarm and it was only upon the third call that he threw away
the magazine he was reading and allowed three or four
minutes to elapse before retrieving the body from the water.
This negligence of Abao, they contend, is attributable to
appellee.

But the claim of these two witnesses not only was vehemently
denied by lifeguard Abao, but is belied by the written
statements given by them in the investigation conducted by
the Police Department of Quezon City approximately three
hours after the happening of the accident. Thus, these two
boys admitted in the investigation that they narrated in their
statements everything they knew of the accident, but, as
found by the trial, nowhere in said statements do they state
that the lifeguard was chatting with the security guard at the
gate of the swimming pool or was reading a comic magazine
when the alarm was given for which reason he failed to
immediately respond to the alarm. On the contrary, what
Ruben Ong particularly emphasized therein was that after the
lifeguard heard the shouts for help, the latter immediately
dived into the pool to retrieve the person under water who
turned out to be his brother. For this reason, the trial court
made this conclusion: "The testimony of Ruben Ong and
Andres Hagad, Jr. as to the alleged failure of the lifeguard
Abao to immediately respond to their call may therefore be
disregarded because they are belied by their written
statements. (Emphasis supplied.)
On the other hand, there is sufficient evidence to show that
appellee has taken all necessary precautions to avoid danger
to the lives of its patrons or prevent accident which may
cause their death. Thus, it has been shown that the swimming
pools of appellee are provided with a ring buoy, toy roof,
towing line, oxygen resuscitator and a first aid medicine kit.
The bottom of the pools is painted with black colors so as to
insure clear visibility. There is on display in a conspicuous
place within the area certain rules and regulations governing
the use of the pools. Appellee employs six lifeguards who are
all trained as they had taken a course for that purpose and
were issued certificates of proficiency. These lifeguards work
on schedule prepared by their chief and arranged in such a
way as to have two guards at a time on duty to look after the
safety of the bathers. There is a male nurse and a sanitary
inspector with a clinic provided with oxygen resuscitator. And
there are security guards who are available always in case of
emergency.
The record also shows that when the body of minor Ong was
retrieved from the bottom of the pool, the employees of
appellee did everything possible to bring him back to life.
Thus, after he was placed at the edge of the pool, lifeguard
Abao immediately gave him manual artificial respiration.
Soon thereafter, nurse Armando Rule arrived, followed by
sanitary inspector Iluminado Vicente who brought with him an
oxygen resuscitator. When they found that the pulse of the
boy was abnormal, the inspector immediately injected him
with camphorated oil. When the manual artificial respiration
proved ineffective they applied the oxygen resuscitator until
its contents were exhausted. And while all these efforts were
being made, they sent for Dr. Ayuyao from the University of
the Philippines who however came late because upon
examining the body he found him to be already dead. All of
the foregoing shows that appellee has done what is humanly
possible under the circumstances to restore life to minor Ong
and for that reason it is unfair to hold it liable for his death.

Sensing that their former theory as regards the liability of

appellee may not be of much help, appellants now switch to
the theory that even if it be assumed that the deceased is
partly to be blamed for the unfortunate incident, still appellee
may be held liable under the doctrine of "last clear chance"
for the reason that, having the last opportunity to save the
victim, it failed to do so.
We do not see how this doctrine may apply considering that
the record does not show how minor Ong came into the big
swimming pool. The only thing the record discloses is that
minor Ong informed his elder brothers that he was going to
the locker room to drink a bottle of coke but that from that
time on nobody knew what happened to him until his lifeless
body was retrieved. The doctrine of last clear chance simply
means that the negligence of a claimant does not preclude a
recovery for the negligence of defendant where it appears
that the latter, by exercising reasonable care and prudence,
might have avoided injurious consequences to claimant
notwithstanding his negligence. Or, "As the doctrine usually is
stated, a person who has the last clear chance or opportunity
of avoiding an accident, notwithstanding the negligent acts of
his opponent or the negligence of a third person which is
imputed to his opponent, is considered in law solely
responsible for the consequences of the accident." (38 Am.
Jur. pp. 900-902)
It goes without saying that the plaintiff himself was
not free from fault, for he was guilty of antecedent
negligence in planting himself in the wrong side of
the road. But as we have already stated, the
defendant was also negligent; and in such case the
problem always is to discover which agent is
immediately and directly responsible. It will be noted
that the negligent acts of the two parties were not
contemporaneous, since the negligence of the
defendant succeeded the negligence of the plaintiff
by an appreciable interval. Under these
circumstances, the law is that a person who has the
last clear chance to avoid the impending harm and
fails to do so is chargeable with the consequences,
without reference to the prior negligence of the other
party. (Picart vs. Smith, 37 Phil., 809)
Since it is not known how minor Ong came into the big
swimming pool and it being apparent that he went there
without any companion in violation of one of the regulations of
appellee as regards the use of the pools, and it appearing that
lifeguard Aba__o responded to the call for help as soon as his
attention was called to it and immediately after retrieving the
body all efforts at the disposal of appellee had been put into
play in order to bring him back to life, it is clear that there is
no room for the application of the doctrine now invoked by
appellants to impute liability to appellee..
The last clear chance doctrine can never apply where
the party charged is required to act instantaneously,
and if the injury cannot be avoided by the application
of all means at hand after the peril is or should have
been discovered; at least in cases in which any
previous negligence of the party charged cannot be
said to have contributed to the injury. O'Mally vs.
Eagan, 77 ALR 582, 43 Wyo. 233, 350, 2, P2d 1063.
(A.L.R. Digest, Vol. 8, pp. 955-956)

Before closing, we wish to quote the following observation of

the trial court, which we find supported by the evidence:
"There is (also) a strong suggestion coming from the expert
evidence presented by both parties that Dominador Ong
might have dived where the water was only 5.5 feet deep,
and in so doing he might have hit or bumped his forehead
against the bottom of the pool, as a consequence of which he
was stunned, and which to his drowning. As a boy scout he
must have received instructions in swimming. He knew, or
have known that it was dangerous for him to dive in that part
of the pool."

price of P8,400 were made by the plaintiff with and to the

Natividad-Vasquez Sabani Development Co., Inc., a
corporation organized and existing under the laws of the
Philippines, of which the defendant Antonio Vazquez was the
acting manager at the time the transaction took place. By way
of counterclaim, the said defendant alleged that he suffered
damages in the sum of P1,000 on account of the filing of this
action against him by the plaintiff with full knowledge that the
said defendant had nothing to do whatever with any and all of
the transactions mentioned in the complaint in his own
individual and personal capacity.

Wherefore, the decision appealed from being in accordance

with law and the evidence, we hereby affirm the same,
without pronouncement as to costs.

The trial court rendered judgment ordering the defendant

Antonio Vazquez to pay to the plaintiff the sum of P3,175.20
plus the sum of P377.50, with legal interest on both sums, and
absolving the defendant Fernando Busuego (treasurer of the
corporation) from the complaint and the plaintiff from the
defendant Antonio Vazquez' counterclaim. Upon appeal to the
Court of Appeals, the latter modified that judgment by
reducing it to the total sum of P3,314.78, with legal interest
thereon and the costs. But by a subsequent resolution upon
the defendant's motion for reconsideration, the Court of
Appeals set aside its judgment and ordered that the case be
remanded to the court of origin for further proceedings. The
defendant Vazquez, not being agreeable to that result, filed
the present petition for certiorari (G.R. No. 48930) to review
and reverse the judgment of the Court of Appeals; and the
plaintiff Francisco de Borja, excepting to the resolution of the
Court of Appeals whereby its original judgment was set aside
and the case was ordered remanded to the court of origin for
further proceedings, filed a cross-petition for certiorari (G.R.
No. 48931) to maintain the original judgment of the Court of
Appeals.

G.R. No. L-48930

February 23, 1944

ANTONIO VAZQUEZ, petitioner,

vs.
FRANCISCO DE BORJA, respondent.
x---------------------------------------------------------x
G.R. No. L-48931

February 23, 1944

FRANCISCO DE BORJA, petitioner,

vs.
ANTONIO VAZQUEZ, respondent.
OZAETA, J.:
This action was commenced in the Court of First Instance of
Manila by Francisco de Borja against Antonio Vazquez and
Fernando Busuego to recover from them jointly and severally
the total sum of P4,702.70 upon three alleged causes of
action, to wit: First, that in or about the month of January,
1932, the defendants jointly and severally obligated
themselves to sell to the plaintiff 4,000 cavans of palay at
P2.10 per cavan, to be delivered during the month of
February, 1932, the said defendants having subsequently
received from the plaintiff in virtue of said agreement the sum
of P8,400; that the defendants delivered to the plaintiff during
the months of February, March, and April, 1932, only 2,488
cavans of palay of the value of P5,224.80 and refused to
deliver the balance of 1,512 cavans of the value of P3,175.20
notwithstanding repeated demands. Second, that because of
defendants' refusal to deliver to the plaintiff the said 1,512
cavans of palay within the period above mentioned, the
plaintiff suffered damages in the sum of P1,000. And, third,
that on account of the agreement above mentioned the
plaintiff delivered to the defendants 4,000 empty sacks, of
which they returned to the plaintiff only 2,490 and refused to
deliver to the plaintiff the balance of 1,510 sacks or to pay
their value amounting to P377.50; and that on account of
such refusal the plaintiff suffered damages in the sum of
P150.
The defendant Antonio Vazquez answered the complaint,
denying having entered into the contract mentioned in the
first cause of action in his own individual and personal
capacity, either solely or together with his codefendant
Fernando Busuego, and alleging that the agreement for the
purchase of 4,000 cavans of palay and the payment of the

The original decision of the Court of Appeals and its

subsequent resolutions on reconsideration read as follows:
Es hecho no controvertido que el 25 de Febrero de
1932, el demandado-apelante vendio al demandante
4,000 cavanes de palay al precio de P2.10 el cavan,
de los cuales, dicho demandante solamente recibio
2,583 cavanes; y que asimismo recibio para su
envase 4,000 sacos vacios. Esta provbado que de
dichos 4,000 sacos vacios solamente se entregaron,
2,583 quedando en poder del demandado el resto, y
cuyo valor es el de P0.24 cada uno. Presentada la
demanda contra los demandados Antonio Vazquez y
Fernando Busuego para el pago de la cantidad de
P4,702.70, con sus intereses legales desde el 1.o de
marzo de 1932 hasta su completo pago y las costas,
el Juzgado de Primera Instancia de Manila el asunto
condenando a Antonio Vazquez a pagar al
demandante la cantidad de P3,175.20, mas la
cantidad de P377.50, con sus intereses legales,
absolviendo al demandado Fernando Busuego de la
demanda y al demandante de la reconvencion de los
demandados, sin especial pronunciamiento en
cuanto a las costas. De dicha decision apelo el
demandado Antonio Vazquez, apuntado como
principal error el de que el habia sido condenado
personalmente, y no la corporacion por el
representada.
Segun la preponderancia de las pruebas, la venta
hecha por Antonio Vazquez a favor de Francisco de

Borja de los 4,000 cavanes de palay fue en su

capacidad de Presidente interino y Manager de la
corporacion Natividad-Vazquez Sabani Development
Co., Inc. Asi resulta del Exh. 1, que es la copia al
carbon del recibo otorgado por el demandado
Vazquez, y cuyo original lo habia perdido el
demandante, segun el. Asi tambien consta en los
libros de la corporacion arriba mencionada, puesto
que en los mismos se ha asentado tanto la entrada
de los P8,400, precio del palay, como su envio al
gobierno en pago de los alquileres de la Hacienda
Sabani. Asi mismo lo admitio Francisco de Borja al
abogado Sr. Jacinto Tomacruz, posterior presidente
de la corporacion sucesora en el arrendamiento de la
Sabani Estate, cuando el solicito sus buenos oficios
para el cobro del precio del palay no entregado. Asi
igualmente lo declaro el que hizo entrega de parte
del palay a Borja, Felipe Veneracion, cuyo testimonio
no ha sido refutado. Y asi se deduce de la misma
demanda, cuando se incluyo en ella a Fernando
Busuego, tesorero de la Natividad-Vazquez Sabani
Development Co., Inc.
Siendo esto asi, la principal responsable debe ser la
Natividad-Vazquez Sabani Development Co., Inc., que
quedo insolvente y dejo de existir. El Juez
sentenciador declaro, sin embargo, al demandado
Vazquez responsable del pago de la cantidad
reclamada por su negligencia al vender los referidos
4,000 cavanes de palay sin averiguar antes si o no
dicha cantidad existia en las bodegas de la
corporacion.
Resulta del Exh. 8 que despues de la venta de los
4,000 cavanes de palay a Francisco de Borja, el
mismo demandado vendio a Kwong Ah Phoy 1,500
cavanes al precio de P2.00 el cavan, y decimos
'despues' porque esta ultima venta aparece asentada
despues de la primera. Segun esto, el apelante no
solamente obro con negligencia, sino interviniendo
culpa de su parte, por lo que de acuerdo con los arts.
1102, 1103 y 1902 del Codigo Civil, el debe ser
responsable subsidiariamente del pago de la
cantidad objecto de la demanda.
En meritos de todo lo expuesto, se confirma la
decision apelada con la modificacion de que el
apelante debe pagar al apelado la suma de
P2,295.70 como valor de los 1,417 cavanes de palay
que dejo de entregar al demandante, mas la suma de
P339.08 como importe de los 1,417 sacos vacios,
que dejo de devolver, a razon de P0.24 el saco, total
P3,314.78, con sus intereses legales desde la
interposicion de la demanda y las costas de ambas
instancias.
Vista la mocion de reconsideracion de nuestra
decision de fecha 13 de Octubre de 1942, y
alegandose en la misma que cuando el apelante
vendio los 1,500 cavanes de palay a Ah Phoy, la
corporacion todavia tenia bastante existencia de
dicho grano, y no estando dicho extremo
suficientemente discutido y probado, y pudiendo
variar el resultado del asunto, dejamos sin efecto
nuestra citada decision, y ordenamos la devolucion

de la causa al Juzgado de origen para que reciba

pruebas al efecto y dicte despues la decision
correspondiente.
Upon consideration of the motion of the attorney for
the plaintiff-appellee in case CA-G.R. No.
8676,Francisco de Borja vs. Antonio Vasquez et al.,
praying, for the reasons therein given, that the
resolution of December 22, 1942, be reconsidered:
Considering that said resolution remanding the case
to the lower court is for the benefit of the plaintiffappellee to afford him opportunity to refute the
contention of the defendant-appellant Antonio
Vazquez, motion denied.
The action is on a contract, and the only issue pleaded and
tried is whether the plaintiff entered into the contract with the
defendant Antonio Vazquez in his personal capacity or as
manager of the Natividad-Vazquez Sabani Development Co.,
Inc. The Court of Appeals found that according to the
preponderance of the evidence "the sale made by Antonio
Vazquez in favor of Francisco de Borja of 4,000 cavans of
palay was in his capacity as acting president and manager of
the corporation Natividad-Vazquez Sabani Development Co.,
Inc." That finding of fact is final and, it resolving the only issue
involved, should be determinative of the result.
The Court of Appeals doubly erred in ordering that the cause
be remanded to the court of origin for further trial to
determine whether the corporation had sufficient stock of
palay at the time appellant sold, 1500 cavans of palay to
Kwong Ah Phoy. First, if that point was material to the issue, it
should have been proven during the trial; and the statement
of the court that it had not been sufficiently discussed and
proven was no justification for ordering a new trial, which, by
the way, neither party had solicited but against which, on the
contrary, both parties now vehemently protest. Second, the
point is, in any event, beside the issue, and this we shall now
discuss in connection with the original judgment of the Court
of Appeals which the plaintiff cross-petitioner seeks to
maintain.
The action being on a contract, and it appearing from the
preponderance of the evidence that the party liable on the
contract is the Natividad-Vazquez Sabani Development Co.,
Inc. which is not a party herein, the complaint should have
been dismissed. Counsel for the plaintiff, in his brief as
respondent, argues that altho by the preponderance of the
evidence the trial court and the Court of Appeals found that
Vazquez celebrated the contract in his capacity as acting
president of the corporation and altho it was the latter, thru
Vazquez, with which the plaintiff had contracted and which,
thru Vazquez, had received the sum of P8,400 from Borja, and
altho that was true from the point of view of a legal fiction,
"ello no impede que tambien sea verdad lo alegado en la
demanda de que la misma persona de Vasquez fue la que
contrato con Borja y que la misma persona de Vasquez fue
quien recibio la suma de P8,400." But such argument is invalid
and insufficient to show that the president of the corporation
is personally liable on the contract duly and lawfully entered
into by him in its behalf.
It is well known that a corporation is an artificial being
invested by law with a personality of its own, separate and
distinct from that of its stockholders and from that of its

officers who manage and run its affairs. The mere fact that its
personality is owing to a legal fiction and that it necessarily
has to act thru its agents, does not make the latter personally
liable on a contract duly entered into, or for an act lawfully
performed, by them for an in its behalf. The legal fiction by
which the personality of a corporation is created is a practical
reality and necessity. Without it no corporate entities may
exists and no corporate business may be transacted. Such
legal fiction may be disregarded only when an attempt is
made to use it as a cloak to hide an unlawful or fraudulent
purpose. No such thing has been alleged or proven in this
case. It has not been alleged nor even intimated that Vazquez
personally benefited by the contract of sale in question and
that he is merely invoking the legal fiction to avoid personal
liability. Neither is it contended that he entered into said
contract for the corporation in bad faith and with intent to
defraud the plaintiff. We find no legal and factual basis upon
which to hold him liable on the contract either principally or
subsidiarily.
The trial court found him guilty of negligence in the
performance of the contract and held him personally liable on
that account. On the other hand, the Court of Appeals found
that he "no solamente obro con negligencia, sino
interveniendo culpa de su parte, por lo que de acuerdo con los
arts. 1102, 1103 y 1902 del Codigo Civil, el debe ser
responsable subsidiariamente del pago de la cantidad objeto
de la demanda." We think both the trial court and the Court of
Appeals erred in law in so holding. They have manifestly failed
to distinguish a contractual from an extracontractual
obligation, or an obligation arising from contract from an
obligation arising from culpa aquiliana. The fault and
negligence referred to in articles 1101-1104 of the Civil Code
are those incidental to the fulfillment or nonfullfillment of a
contractual obligation; while the fault or negligence referred
to in article 1902 is the culpa aquiliana of the civil law,
homologous but not identical to tort of the common law,
which gives rise to an obligation independently of any
contract. (Cf. Manila R.R. Co. vs. Cia. Trasatlantica, 38 Phil.,
875, 887-890; Cangco vs.Manila R.R. Co., 38 Phil. 768.) The
fact that the corporation, acting thru Vazquez as its manager,
was guilty of negligence in the fulfillment of the contract, did
not make Vazquez principally or even subsidiarily liable for
such negligence. Since it was the corporation's contract, its
nonfulfillment, whether due to negligence or fault or to any
other cause, made the corporation and not its agent liable.
On the other hand if independently of the contract Vazquez by
his fault or negligence cause damaged to the plaintiff, he

would be liable to the latter under article 1902 of the Civil

Code. But then the plaintiff's cause of action should be based
on culpa aquiliana and not on the contract alleged in his
complaint herein; and Vazquez' liability would be principal and
not merely subsidiary, as the Court of Appeals has
erroneously held. No such cause of action was alleged in the
complaint or tried by express or implied consent of the parties
by virtue of section 4 of Rule 17. Hence the trial court had no
jurisdiction over the issue and could not adjudicate upon it
(Reyes vs. Diaz, G.R. No. 48754.) Consequently it was error for
the Court of Appeals to remand the case to the trial court to
try and decide such issue.
It only remains for us to consider petitioner's second
assignment of error referring to the lower courts' refusal to
entertain his counterclaim for damages against the
respondent Borja arising from the bringing of this action. The
lower courts having sustained plaintiff's action. The finding of
the Court of Appeals that according to the preponderance of
the evidence the defendant Vazquez celebrated the contract
not in his personal capacity but as acting president and
manager of the corporation, does not warrant his contention
that the suit against him is malicious and tortious; and since
we have to decide defendant's counterclaim upon the facts
found by the Court of Appeals, we find no sufficient basis upon
which to sustain said counterclaim. Indeed, we feel that a a
matter of moral justice we ought to state here that the
indignant attitude adopted by the defendant towards the
plaintiff for having brought this action against him is in our
estimation not wholly right. Altho from the legal point of view
he was not personally liable for the fulfillment of the contract
entered into by him on behalf of the corporation of which he
was the acting president and manager, we think it was his
moral duty towards the party with whom he contracted in said
capacity to see to it that the corporation represented by him
fulfilled the contract by delivering the palay it had sold, the
price of which it had already received. Recreant to such duty
as a moral person, he has no legitimate cause for indignation.
We feel that under the circumstances he not only has no
cause of action against the plaintiff for damages but is not
even entitled to costs.
The judgment of the Court of Appeals is reversed, and the
complaint is hereby dismissed, without any finding as to costs.
Yulo, C.J., Moran, Horrilleno and Bocobo, JJ., concur.