DEFINITION OF TORTS UNDER PHILIPPINE

LAW

Naguiat Enterprises, Inc., Sergio F. Naguiat and Antolin T. Naguiat, jointly

and severally liable with Clark Field Taxi, Inc. ("CFTI").

Republic of the Philippines

SUPREME COURT
Manila

The Facts
The following facts are derived from the records of the case:

THIRD DIVISION

Petitioner CFTI held a concessionaire's contract with the Army Air Force
Exchange Services ("AAFES") for the operation of taxi services within Clark
Air Base. Sergio F. Naguiat was CFTI's president, while Antolin T. Naguiat
was its vice-president. Like Sergio F. Naguiat Enterprises, Incorporated
("Naguiat Enterprises"), a trading firm, it was a family-owned corporation.

G.R. No. 116123 March 13, 1997

SERGIO F. NAGUIAT, doing business under the name and

style SERGIO F. NAGUIAT ENT., INC., & CLARK FIELD TAXI,
INC., petitioners,
vs.
NATIONAL LABOR RELATIONS COMMISSION (THIRD
DIVISION), NATIONAL ORGANIZATION OF WORKINGMEN and
its members, LEONARDO T. GALANG, et al., respondents.

Individual respondents were previously employed by CFTI as taxicab

drivers. During their employment, they were required to pay a daily
"boundary fee" in the amount of US$26.50 for those working from 1:00
a.m. to 12:00 noon, and US$27.00 for those working from 12:00 noon to
12:00 midnight. All incidental expenses for the maintenance of the vehicles
they were driving were accounted against them, including gasoline
expenses.

PANGANIBAN, J.:
Are private respondent-employees of petitioner Clark Field Taxi, Inc., who
were separated from service due the closure of Clark Air Base, entitled to
separation pay and, if so, in what amount? Are officers of corporations ipso
facto liable jointly and severally with the companies they represent for the
payment of separation pay?

The drivers worked at least three to four times a week, depending on the
availability of taxicabs. They earned not less than US$15.00 daily.
In excess of that amount, however, they were required to make cash
deposits to the company, which they could later withdraw every fifteen
days.

These questions are answered by the Court in resolving this petition

for certiorari under Rule 65 of the Rules of Court assailing the Resolutions
of the National Labor Relations Commission (Third Division) 1 promulgated
on February 28, 1994, 2 and May 31, 1994. 3 The February 28, 1994
Resolution affirmed with modifications the decision 4 of Labor Arbiter Ariel
C. Santos in NLRC Case No. RAB-III-12-2477-91. The second Resolution
denied the motion for reconsideration of herein petitioners.

Due to the phase-out of the US military bases in the Philippines, from

which Clark Air Base was not spared, the AAFES was dissolved, and the
services of individual respondents were officially terminated on November
26, 1991.
The AAFES Taxi Drivers Association ("drivers' union"), through its local
president, Eduardo Castillo, and CFTI held negotiations as regards
separation benefits that should be awarded in favor of the drivers. They
arrived at an agreement that the separated drivers will be given P500.00
for every year of service as severance pay. Most of the drivers accepted

The NLRC modified the decision of the labor arbiter by granting separation
pay to herein individual respondents in the increased amount of US$120.00
for every year of service or its peso equivalent, and holding Sergio F.

said amount in December 1991 and January 1992. However, individual

respondents herein refused to accept theirs.

In not awarding separation pay in accordance with the Labor Code, the
labor arbiter explained:

Instead, after disaffiliating themselves from the drivers' union, individual

respondents, through the National Organization of Workingmen ("NOWM"),
a labor organization which they subsequently joined, filed a
complaint 5against "Sergio F. Naguiat doing business under the name and
style Sergio F. Naguiat Enterprises, Inc., Army-Air Force Exchange Services
(AAFES) with Mark Hooper as Area Service Manager, Pacific Region, and
AAFES Taxi Drivers Association with Eduardo Castillo as President," for
payment of separation pay due to termination/phase-out. Said complaint
was later amended 6 to include additional taxi drivers who were similarly
situated as complainants, and CFTI with Antolin T. Naguiat as vice
president and general manager, as party respondent.

To allow respondents exemption from its (sic) obligation to

pay separation pay would be inhuman to complainants but
to impose a monetary obligation to an employer whose
profitable business was abruptly shot (sic) down by force
majeure would be unfair and unjust to say the least. 7
and thus, simply
consideration."

awarded

an

amount

for

"humanitarian

Herein individual private respondents appealed to the NLRC. In its

Resolution, the NLRC modified the decision of the labor arbiter by granting
separation pay to the private respondents. The concluding paragraphs of
the NLRC Resolution read:

In their complaint, herein private respondents alleged that they were

regular employees of Naguiat Enterprises, although their individual
applications for employment were approved by CFTI. They claimed to have
been assigned to Naguiat Enterprises after having been hired by CFTI, and
that the former thence managed, controlled and supervised their
employment. They averred further that they were entitled to separation
pay based on their latest daily earnings of US$15.00 for working sixteen
(16) days a month.

The contention of complainant is partly correct. One-half

month salary should be US$120.00 but this amount can not
be paid to the complainant in U.S. Dollar which is not the
legal tender in the Philippines. Paras, in commenting on
Art. 1249 of the New Civil Code, defines legal tender as
"that which a debtor may compel a creditor to accept in
payment of the debt. The complainants who are the
creditors in this instance can be compelled to accept the
Philippine peso which is the legal tender, in which case, the
table of conversion (exchange rate) at the time of payment
or satisfaction of the judgment should be used. However,
since the choice is left to the debtor, (respondents) they
may choose to pay in US dollar." (Phoenix Assurance Co.
vs. Macondray & Co. Inc., L-25048, May 13, 1975)

In their position paper submitted to the labor arbiter, herein petitioners

claimed that the cessation of business of CFTI on November 26, 1991, was
due to "great financial losses and lost business opportunity" resulting from
the phase-out of Clark Air Base brought about by the Mt. Pinatubo eruption
and the expiration of the RP-US military bases agreement. They admitted
that CFTI had agreed with the drivers' union, through its President Eduardo
Castillo who claimed to have had blanket authority to negotiate with CFTI
in behalf of union members, to grant its taxi driver-employees separation
pay equivalent to P500.00 for every year of service.

In discharging the above obligations, Sergio F. Naguiat

Enterprises, which is headed by Sergio F. Naguiat and
Antolin Naguiat, father and son at the same time the
President and Vice-President and General Manager,
respectively, should be joined as indispensable party
whose liability is joint and several. (Sec. 7, Rule 3, Rules of
Court) 8

The labor arbiter, finding the individual complainants to be regular workers

of CFTI, ordered the latter to pay them P1,200.00 for every year of service
"for humanitarian consideration," setting aside the earlier agreement
between CFTI and the drivers' union of P500.00 for every year of service.
The labor arbiter rejected the allegation of CFTI that it was forced to close
business due to "great financial losses and lost business opportunity"
since, at the time it ceased operations, CFTI was profitably earning and the
cessation of its business was due to the untimely closure of Clark Air Base.

As mentioned earlier, the motion for reconsideration of herein petitioners

was denied by the NLRC. Hence, this petition with prayer for issuance of a
temporary restraining order. Upon posting by the petitioners of a surety
bond, a temporary restraining order 9 was issued by this Court enjoining
execution of the assailed Resolutions.

bound by the decision of the union (AAFES Taxi Drivers Association) of

which they were members.
As to the third issue, petitioners incessantly insist that Sergio F. Naguiat
Enterprises, Inc. is a separate and distinct juridical entity which cannot be
held jointly and severally liable for the obligations of CFTI. And similarly,
Sergio F. Naguiat and Antolin Naguiat were merely officers and
stockholders of CFTI and, thus, could not be held personally accountable
for corporate debts.

Issues
The petitioners raise the following issues before this Court for resolution:
I. Whether or not public respondent NLRC (3rd Div.)
committed grave abuse of discretion amounting to lack of
jurisdiction in issuing the appealed resolution;

Lastly, Sergio and Antolin Naguiat assail the Resolution of NLRC holding
them solidarily liable despite not having been impleaded as parties to the
complaint.

II. Whether or not Messrs. Teofilo Rafols and Romeo N.

Lopez could validly represent herein private respondents;
and,

Individual respondents filed a comment separate from that of NOWM. In

sum, both aver that petitioners had the opportunity but failed to refute, the
taxi drivers' claim of having an average monthly earning of $240.00; that
individual respondents became members of NOWM after disaffiliating
themselves from the AAFES Taxi Drivers Association which, through the
manipulations of its President Eduardo Castillo, unconscionably
compromised their separation pay; and that Naguiat Enterprises, being
their indirect employer, is solidarily liable under the law for violation of the
Labor Code, in this case, for nonpayment of their separation pay.

III. Whether or not the resolution issued by public

respondent is contrary to law. 10
Petitioners also submit two additional issues by way of a supplement 11 to
their petition, to wit: that Petitioners Sergio F. Naguiat and Antolin Naguiat
were denied due process; and that petitioners were not furnished copies of
private respondents' appeal to the NLRC. As to the procedural lapse of
insufficient copies of the appeal, the proper forum before which petitioners
should have raised it is the NLRC. They, however, failed to question this in
their motion for reconsideration. As a consequence, they are deemed to
have waived the same and voluntarily submitted themselves to the
jurisdiction of the appellate body.

The Solicitor General unqualifiedly supports the allegations of private

respondents. In addition, he submits that the separate personalities of
respondent corporations and their officers should be disregarded and
considered one and the same as these were used to perpetrate injustice to
their employees.
The Court's Ruling

Anent the first issue raised in their original petition, petitioners contend
that NLRC committed grave abuse of discretion amounting to lack or
excess of jurisdiction in unilaterally increasing the amount of severance
pay granted by the labor arbiter. They claim that this was not supported by
substantial evidence since it was based simply on the self-serving
allegation of respondents that their monthly take-home pay was not lower
than $240.00.

As will be discussed below, the petition is partially meritorious.

First Issue: Amount of Separation Pay
Firmly, we reiterate the rule that in a petition for certiorari filed pursuant to
Rule 65 of the Rules of Court, which is the only way a labor case may reach
the Supreme Court, the petitioner/s must clearly show that the NLRC acted
without or in excess of jurisdiction or with grave abuse of discretion. 12

On the second issue, petitioners aver that NOWM cannot make legal
representations in behalf of individual respondents who should, instead, be

Long-standing and well-settled in Philippine jurisprudence is the judicial

dictum that findings of fact of administrative agencies and quasi-judicial
bodies, which have acquired expertise because their jurisdiction is confined
to specific matters, are generally accorded not only great respect but even
finality; and are binding upon this Court unless there is a showing of grave
abuse of discretion, or where it is clearly shown that they were arrived at
arbitrarily or in disregard of the evidence on record. 13

With respect to the amount of separation pay that should be granted,

Article 283 of the Labor Code provides:
. . . In case of retrenchment to prevent losses and in cases
of closures or cessation of operations of establishment or
undertaking not due to serious business losses or financial
reverses, the separation pay shall be equivalent to one (1)
month pay or at least one-half (1/2) month pay for every
year of service, whichever is higher. A fraction of at least
six (6) months shall be considered one (1) whole year.

Nevertheless, this Court carefully perused the records of the instant case if
only to determine whether public respondent committed grave abuse of
discretion, amounting to lack of jurisdiction, in granting the clamor of
private respondents that their separation pay should be based on the
amount of $240.00, allegedly their minimum monthly earnings as taxi
drivers of petitioners.

Considering the above, we find that NLRC did not commit grave abuse of
discretion in ruling that individual respondents were entitled to separation
pay 15 in the amount $120.00 (one-half of $240.00 monthly pay) or its peso
equivalent for every year of service.

In their amended complaint before the Regional Arbitration Branch in San

Fernando, Pampanga, herein private respondents set forth in detail the
work schedule and financial arrangement they had with their employer.
Therefrom they inferred that their monthly take-home pay amounted to not
less than $240.00. Herein petitioners did not bother to refute nor offer any
evidence to controvert said allegations. Remaining undisputed, the labor
arbiter adopted such facts in his decision. Petitioners did not even appeal
from the decision of the labor arbiter nor manifest any error in his findings
and conclusions. Thus, petitioners are in estoppel for not having
questioned such facts when they had all opportunity to do so. Private
respondents, like petitioners, are bound by the factual findings of
Respondent Commission.

Second
Issue:
NOWM's
Personality
Represent Individual Respondents-Employees

to

On the question of NOWM's authority to represent private respondents, we

hold petitioners in estoppel for not having seasonably raised this issue
before the labor arbiter or the NLRC. NOWM was already a party-litigant as
the organization representing the taxi driver-complainants before the labor
arbiter. But petitioners who were party-respondents in said complaint did
not assail the juridical personality of NOWM and the validity of its
representations in behalf of the complaining taxi drivers before the quasijudicial bodies. Therefore, they are now estopped from raising such
question before this Court. In any event, petitioners acknowledged before
this Court that the taxi drivers allegedly represented by NOWM, are
themselves parties in this case. 16

Petitioners also claim that the closure of their taxi business was due to
great financial losses brought about by the eruption of Mt. Pinatubo which
made the roads practically impassable to their taxicabs. Likewise wellsettled is the rule that business losses or financial reverses, in order to
sustain retrenchment of personnel or closure of business and warrant
exemption from payment of separation pay, must be proved with clear and
satisfactory evidence. 14 The records, however, are devoid of such
evidence.

Third
Issue:
Liability
Corporations and Their Respective Officers

of

Petitioner-

The resolution of this issue involves another factual finding that Naguiat
Enterprises actually managed, supervised and controlled employment
terms of the taxi drivers, making it their indirect employer. As adverted to
earlier, factual findings of quasi-judicial bodies are binding upon the court
in the absence of a showing of grave abuse of discretion.

The labor arbiter, as affirmed by NLRC, correctly found that petitioners

stopped their taxi business within Clark Air Base because of the phase-out
of U.S. military presence thereat. It was not due to any great financial loss
because petitioners' taxi business was earning profitably at the time of its
closure.

Unfortunately, the NLRC did not discuss or give any explanation for holding
Naguiat Enterprises and its officers jointly and severally liable in
discharging CFTI's liability for payment of separation pay. We again remind
those concerned that decisions, however concisely written, must distinctly
and clearly set forth the facts and law upon which they are based. 17 This
rule applies as well to dispositions by quasi-judicial and administrative
bodies.

Private respondents failed to substantiate their claim that Naguiat

Enterprises managed, supervised and controlled their employment. It
appears that they were confused on the personalities of Sergio F. Naguiat
as an individual who was the president of CFTI, and Sergio F. Naguiat
Enterprises, Inc., as a separate corporate entity with a separate business.
They presumed that Sergio F. Naguiat, who was at the same time a
stockholder and director27 of Sergio F. Naguiat Enterprises, Inc., was
managing and controlling the taxi business on behalf of the latter. A closer
scrutiny and analysis of the records, however, evince the truth of the
matter: that Sergio F. Naguiat, in supervising the taxi drivers and
determining their employment terms, was rather carrying out his
responsibilities as president of CFTI. Hence, Naguiat Enterprises as a
separate corporation does not appear to be involved at all in the taxi
business.

Naguiat Enterprise Not Liable

In impleading Naguiat Enterprises as solidarily liable for the obligations of
CFTI, respondents rely on Articles 106, 18 107 19 and 109 20 of the Labor
Code.
Based on factual submissions of the parties, the labor arbiter, however,
found that individual respondents were regular employees of CFTI who
received wages on a boundary or commission basis.

To illustrate further, we refer to the testimony of a driver-claimant on cross

examination.

We find no reason to make a contrary finding. Labor-only contracting exists

where: (1) the person supplying workers to an employer does not have
substantial capital or investment in the form of tools, equipment,
machinery, and work premises, among others; and (2) the workers
recruited and placed by such person are performing activities which are
directly related to the principal business of the employer. 21 Independent
contractors, meanwhile, are those who exercise independent employment,
contracting to do a piece of work according to their own methods without
being subject to control of their employer except as to the result of their
Work. 22

Atty. Suarez

From the evidence proffered by both parties, there is no substantial basis

to hold that Naguiat Enterprises is an indirect employer of individual
respondents much less a labor only contractor. On the contrary, petitioners
submitted documents such as the drivers' applications for employment
with CFTI, 23 and social security remittances24 and payroll 25 of Naguiat
Enterprises showing that none of the individual respondents were its
employees. Moreover, in the contract 26 between CFTI and AAFES, the
former, as concessionaire, agreed to purchase from AAFES for a certain
amount within a specified period a fleet of vehicles to be "ke(pt) on the
road" by CFTI, pursuant to their concessionaire's contract. This indicates
that CFTI became the owner of the taxicabs which became the principal
investment and asset of the company.

Sergio F. Naguiat as an individual or the

corporation?

Is it not true that you applied not with

Sergio F. Naguiat but with Clark Field Taxi?
Witness
I applied for (sic) Sergio F. Naguiat.
Atty. Suarez

Witness
Sergio F. Naguiat na tao.
Atty. Suarez
Who is Sergio F. Naguiat?

Witness

How about Mr. Antolin Naguiat what is his

role in the taxi services, the operation of
the Clark Field Taxi, Incorporated?

He is the one managing the Sergio F.

Naguiat Enterprises and he is the one
whom we believe as our employer

Witness

Atty. Suarez

He is the vice president.

28

What is exactly the position of Sergio F.

Naguiat with the Sergio F. Naguiat
Enterprises?

And, although the witness insisted that Naguiat Enterprises was his
employer, he could not deny that he received his salary from the office of
CFTI inside the base. 29

Witness

Another driver-claimant admitted, upon the prodding of counsel for the

corporations, that Naguiat Enterprises was in the trading business while
CFTI was in taxi services. 30

He is the owner, sir.

In addition, the Constitution 31 of CFTI-AAFES Taxi Drivers Association

which, admittedly, was the union of individual respondents while still
working at Clark Air Base, states that members thereof are the employees
of CFTI and "(f)or collective bargaining purposes, the definite employer is
the Clark Field Taxi Inc."

Atty. Suarez
How
about
with
Clark
Field
Taxi
Incorporated what is the position of Mr.
Naguiat?

From the foregoing, the ineludible conclusion is that CFTI was the actual
and direct employer of individual respondents, and that Naguiat
Enterprises was neither their indirect employer nor labor-only contractor. It
was not involved at all in the taxi business.

Witness
What I know is that he is a concessionaire.
xxx xxx xxx

CFTI
solidarily liable

Atty. Suarez

president

Petitioner-corporations would likewise want to avoid the solidary liability of

their officers. To bolster their position, Sergio F. Naguiat and Antolin T.
Naguiat specifically aver that they were denied due process since they
were not parties to the complaint below. 32 In the broader interest of
justice, we, however, hold that Sergio F. Naguiat, in his capacity as
president of CFTI, cannot be exonerated from joint and several liability in
the payment of separation pay to individual respondents.

But do you also know that Sergio F. Naguiat

is the President of Clark Field Taxi,
Incorporated?
Witness
Yes, sir.

A.C. Ransom Labor Union-CCLU vs. NLRC 33 is the case in point. A.C.
Ransom Corporation was a family corporation, the stockholders of which
were members of the Hernandez family. In 1973, it filed an application for

Atty. Suarez

clearance to close or cease operations, which was duly granted by the

Ministry of Labor and Employment, without prejudice to the right of
employees to seek redress of grievance, if any. Backwages of 22
employees, who engaged in a strike prior to the closure, were
subsequently computed at P164,984.00. Up to September 1976, the union
filed about ten (10) motions for execution against the corporation, but
none could be implemented, presumably for failure to find leviable assets
of said corporation. In its last motion for execution, the union asked that
officers and agents of the company be held personally liable for payment
of the backwages. This was granted by the labor arbiter. In the
corporation's appeal to the NLRC, one of the issues raised was: "Is the
judgment against a corporation to reinstate its dismissed employees with
backwages, enforceable against its officer and agents, in their individual,
private and personal capacities, who were not parties in the case where
the judgment was rendered!" The NLRC answered in the negative, on the
ground that officers of a corporation are not liable personally for official
acts unless they exceeded the scope of their authority.

nonpayment of back wages. That is the policy of the law. . .

.

On certiorari, this Court reversed the NLRC and upheld the labor arbiter. In
imposing joint and several liability upon the company president, the Court,
speaking through Mme. Justice Ameurfina Melencio-Herrera, ratiocinated
this wise:

Sergio F. Naguiat, admittedly, was the president of CFTI who actively

managed the business. Thus, applying the ruling in A.C. Ransom, he falls
within the meaning of an "employer" as contemplated by the Labor Code,
who may be held jointly and severally liable for the obligations of the
corporation to its dismissed employees.

(c) If the policy of the law were otherwise, the corporation

employer can have devious ways for evading payment of
back wages. . . .
(d) The record does not clearly identify "the officer or
officers" of RANSOM directly responsible for failure to pay
the back wages of the 22 strikers. In the absence of
definite Proof in that regard, we believe it should be
presumed that the responsible officer is the President of
the corporation who can be deemed the chief operation
officer thereof. Thus, in RA 602, criminal responsibility is
with the "Manager or in his default, the person acting as
such." In RANSOM. the President appears to be the
Manager. (Emphasis supplied.)

(b) How can the foregoing (Articles 265 and 273 of the
Labor Code) provisions be implemented when the
employer is a corporation? The answer is found in Article
212(c) of the Labor Code which provides:

Moreover, petitioners also conceded that both CFTI and Naguiat

Enterprises were "close family corporations" 34owned by the Naguiat family.
Section 100, paragraph 5, (under Title XII on Close Corporations) of the
Corporation Code, states:

(c) "Employer" includes any person acting in the interest of

an employer, directly or indirectly. The term shall not
include any labor organization or any of its officers or
agents except when acting as employer.

(5) To the extent that the stockholders are actively

engage(d) in the management or operation of the business
and affairs of a close corporation, the stockholders shall be
held to strict fiduciary duties to each other and among
themselves. Said stockholders shall be personally liable for
corporate tortsunless the corporation has obtained
reasonably adequate liability insurance. (emphasis
supplied)

The foregoing was culled from Section 2 of RA 602, the

Minimum Wage Law. Since RANSOM is an artificial person,
it must have an officer who can be presumed to be the
employer, being the "person acting in the interest of (the)
employer" RANSOM. The corporation, only in the technical
sense, is the employer.

Nothing in the records show whether CFTI obtained "reasonably

adequate liability insurance;" thus, what remains is to determine
whether there was corporate tort.

The responsible officer of an employer corporation can be

held personally, not to say even criminally, liable for

Our jurisprudence is wanting as to the definite scope of "corporate tort."

Essentially, "tort" consists in the violation of a right given or the omission
of a duty imposed by law. 35 Simply stated, tort is a breach of a legal
duty. 36 Article 283 of the Labor Code mandates the employer to grant
separation pay to employees in case of closure or cessation of operations
of establishment or undertaking not due to serious business losses or
financial reverses, which is the condition obtaining at bar. CFTI failed to
comply with this law-imposed duty or obligation. Consequently, its
stockholder who was actively engaged in the management or operation of
the business should be held personally liable.

The Court here finds no application to the rule that a corporate officer
cannot be held solidarily liable with a corporation in the absence of
evidence that he had acted in bad faith or with malice. 39 In the present
case, Sergio Naguiat is held solidarily liable for corporate tort because he
had actively engaged in the management and operation of CFTI, a close
corporation.
Antolin Naguiat not personally liable
Antolin T. Naguiat was the vice president of the CFTI. Although he carried
the title of "general manager" as well, it had not been shown that he had
acted in such capacity. Furthermore, no evidence on the extent of his
participation in the management or operation of the business was
preferred. In this light, he cannot be held solidarily liable for the obligations
of CFTI and Sergio Naguiat to the private respondents.

Furthermore, in MAM Realty Development vs. NLRC, 37 the Court

recognized that a director or officer may still be held solidarily liable with a
corporation by specific provision of law. Thus:
. . . A corporation, being a juridical entity, may act only
through its directors, officers and employees. Obligations
incurred by them, acting as such corporate agents, are not
theirs but the direct accountabilities of the corporation
they represent. True, solidary liabilities may at times be
incurred but only when exceptional circumstances warrant
such as, generally, in the following cases:

Fourth Issue: No Denial of Due Process

Lastly, in petitioners' Supplement to their original petition, they assail the
NLRC Resolution holding Sergio F. Naguiat and Antolin T. Naguiat jointly and
severally liable with petitioner-corporations in the payment of separation
pay, averring denial of due process since the individual Naguiats were not
impleaded as parties to the complaint.

xxx xxx xxx

We advert to the case of A.C. Ransom once more. The officers of the
corporation were not parties to the case when the judgment in favor of the
employees was rendered. The corporate officers raised this issue when the
labor arbiter granted the motion of the employees to enforce the judgment
against them. In spite of this, the Court held the corporation president
solidarily liable with the corporation.

4. When a director, trustee or officer is made, by specific

provision of law, personally liable for his corporate action.
(footnotes omitted)
As pointed out earlier, the fifth paragraph of Section 100 of the Corporation
Code specifically imposes personal liability upon the stockholder actively
managing or operating the business and affairs of the close corporation.

Furthermore, Sergio and Antolin Naguiat voluntarily submitted themselves

to the jurisdiction of the labor arbiter when they, in their individual
capacities, filed a position paper 40 together with CFTI, before the arbiter.
They cannot now claim to have been denied due process since they
availed of the opportunity to present their positions.

In fact, in posting the surety bond required by this Court for the issuance of
a temporary restraining order enjoining the execution of the assailed NLRC
Resolutions, only Sergio F. Naguiat, in his individual and personal capacity,
principally bound himself to comply with the obligation thereunder, i.e., "to
guarantee the payment to private respondents of any damages which they
may incur by reason of the issuance of a temporary restraining order
sought, if it should be finally adjudged that said principals were not entitled
thereto. 38

WHEREFORE, the foregoing premises considered, the petition is PARTLY

GRANTED. The assailed February 28, 1994 Resolution of the NLRC is hereby
MODIFIED as follows:

(1) Petitioner Clark Field Taxi, Incorporated, and Sergio F. Naguiat, president
and co-owner thereof, are ORDERED to pay, jointly and severally, the
individual respondents their separation pay computed at US$120.00 for
every year of service, or its peso equivalent at the time of payment or
satisfaction of the judgment;

engaged in the manufacture of different brands of cigarettes, among which

are "Champion," "Hope," and "More" cigarettes.
On June 10, 1993, the legislature enacted Republic Act No. 7654 (RA 7654),
which took effect on July 3, 1993. Prior to its effectivity, cigarette brands
Champion," "Hope," and "More" were considered local brands subjected to
an ad valorem tax at the rate of 20-45%. However, on July 1, 1993, or two
days before RA 7654 took effect, petitioner issued RMC 37-93 reclassifying
"Champion," "Hope," and "More" as locally manufactured cigarettes
bearing a foreign brand subject to the 55% ad valorem tax.4 RMC 37-93
in effect subjected "Hope," "More," and"Champion" cigarettes to the
provisions of RA 7654, specifically, to Sec. 142, 5 (c)(1) on locally
manufactured cigarettes which are currently classified and taxed at
55%, and which imposes an ad valorem tax of "55% provided that the
minimum tax shall not be less than Five Pesos (P5.00) per pack."6

(2) Petitioner Sergio F. Naguiat Enterprises, Incorporated, and Antolin T.

Naguiat are ABSOLVED from liability in the payment of separation pay to
individual respondents.
SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila

On July 2, 1993, at about 5:50 p.m., BIR Deputy Commissioner Victor A.

Deoferio, Jr. sent via telefax a copy of RMC 37-93 to Fortune Tobacco but it
was addressed to no one in particular. On July 15, 1993, Fortune Tobacco
received, by ordinary mail, a certified xerox copy of RMC 37-93. On July 20,
1993, respondent filed a motion for reconsideration requesting the recall of
RMC 37-93, but was denied in a letter dated July 30, 1993. 7 The same letter
assessed
respondent
for ad
valorem tax
deficiency
amounting
to P9,598,334.00 (computed on the basis of RMC 37-93) and demanded
payment within 10 days from receipt thereof.8 On August 3, 1993,
respondent filed a petition for review with the Court of Tax Appeals (CTA),
which on September 30, 1993, issued an injunction enjoining the
implementation of RMC 37-93.9 In its decision dated August 10, 1994, the
CTA ruled that RMC 37-93 is defective, invalid, and unenforceable and
further enjoined petitioner from collecting the deficiency tax assessment
issued pursuant to RMC No. 37-93. This ruling was affirmed by the Court of
Appeals, and finally by this Court in Commissioner of Internal Revenue v.
Court of Appeals.10 It was held, among others, that RMC 37-93, has fallen
short of the requirements for a valid administrative issuance.

THIRD DIVISION
G.R. No. 141309

June 19, 2007

LIWAYWAY VINZONS-CHATO, petitioner,

vs.
FORTUNE TOBACCO CORPORATION, respondent.
DECISION
YNARES-SANTIAGO, J.:
Petitioner assails the May 7, 1999 Decision 1 of the Court of Appeals in CAG.R. SP No. 47167, which affirmed the September 29, 1997 Order 2 of the
Regional Trial Court (RTC) of Marikina, Branch 272, in Civil Case No. 97-341MK, denying petitioners motion to dismiss. The complaint filed by
respondent sought to recover damages for the alleged violation of its
constitutional rights arising from petitioners issuance of Revenue
Memorandum Circular No. 37-93 (RMC 37-93), which the Court declared
invalid in Commissioner of Internal Revenue v. Court of Appeals.3

On April 10, 1997, respondent filed before the RTC a complaint 11 for
damages against petitioner in her private capacity. Respondent contended
that the latter should be held liable for damages under Article 32 of the
Civil Code considering that the issuance of RMC 37-93 violated its
constitutional right against deprivation of property without due process of
law and the right to equal protection of the laws.

Petitioner Liwayway Vinzons-Chato was then the Commissioner of Internal

Revenue while respondent Fortune Tobacco Corporation is an entity

Petitioner filed a motion to dismiss 12 contending that: (1) respondent has

no cause of action against her because she issued RMC 37-93 in the
performance of her official function and within the scope of her authority.
She claimed that she acted merely as an agent of the Republic and
therefore the latter is the one responsible for her acts; (2) the complaint
states no cause of action for lack of allegation of malice or bad faith; and
(3) the certification against forum shopping was signed by respondents
counsel in violation of the rule that it is the plaintiff or the principal party
who should sign the same.

should be applied. Under this provision, liability will attach only when there
is a clear showing of bad faith, malice, or gross negligence. She further
averred that the Civil Code, specifically, Article 32 which allows recovery of
damages for violation of constitutional rights, is a general law on the
liability of public officers; while Section 38, Book I of the Administrative
Code is a special law on the superior public officers liability, such that, if
the complaint, as in the instant case, does not allege bad faith, malice, or
gross negligence, the same is dismissible for failure to state a cause of
action. As to the defect of the certification against forum shopping, she
urged the Court to strictly construe the rules and to dismiss the complaint.

On September 29, 1997, the RTC denied petitioners motion to dismiss

holding that to rule on the allegations of petitioner would be to
prematurely decide the merits of the case without allowing the parties to
present evidence. It further held that the defect in the certification against
forum shopping was cured by respondents submission of the corporate
secretarys certificate authorizing its counsel to execute the certification
against forum shopping. The dispositive portion thereof, states:

Conversely, respondent argued that Section 38 which treats in general the

public officers "acts" from which civil liability may arise, is a general law;
while Article 32 which deals specifically with the public officers violation of
constitutional rights, is a special provision which should determine whether
the complaint states a cause of action or not. Citing the case of Lim v.
Ponce de Leon,14 respondent alleged that under Article 32 of the Civil Code,
it is enough that there was a violation of the constitutional rights of the
plaintiff and it is not required that said public officer should have acted
with malice or in bad faith. Hence, it concluded that even granting that the
complaint failed to allege bad faith or malice, the motion to dismiss for
failure to state a cause of action should be denied inasmuch as bad faith or
malice are not necessary to hold petitioner liable.

WHEREFORE, foregoing premises considered, the motion to dismiss

filed by the defendant Liwayway Vinzons-Chato and the motion to
strike out and expunge from the record the said motion to dismiss
filed by plaintiff Fortune Tobacco Corporation are both denied on
the grounds aforecited. The defendant is ordered to file her answer
to the complaint within ten (10) days from receipt of this Order.

The issues for resolution are as follows:

SO ORDERED.13
(1) May a public officer be validly sued in his/her private capacity
for acts done in connection with the discharge of the functions of
his/her office?

The case was elevated to the Court of Appeals via a petition for certiorari
under Rule 65. However, same was dismissed on the ground that under
Article 32 of the Civil Code, liability may arise even if the defendant did not
act with malice or bad faith. The appellate court ratiocinated that Section
38, Book I of the Administrative Code is the general law on the civil liability
of public officers while Article 32 of the Civil Code is the special law that
governs the instant case. Consequently, malice or bad faith need not be
alleged in the complaint for damages. It also sustained the ruling of the
RTC that the defect of the certification against forum shopping was cured
by the submission of the corporate secretarys certificate giving authority
to its counsel to execute the same.

(2) Which as between Article 32 of the Civil Code and Section 38,
Book I of the Administrative Code should govern in determining
whether the instant complaint states a cause of action?
(3) Should the complaint be dismissed for failure to comply with
the rule on certification against forum shopping?
(4) May petitioner be held liable for damages?

Undaunted, petitioner filed the instant recourse contending that the suit is
grounded on her acts done in the performance of her functions as a public
officer, hence, it is Section 38, Book I of the Administrative Code which

On the first issue, the general rule is that a public officer is not liable for
damages which a person may suffer arising from the just performance of

10

his official duties and within the scope of his assigned tasks. 15 An officer
who acts within his authority to administer the affairs of the office which
he/she heads is not liable for damages that may have been caused to
another, as it would virtually be a charge against the Republic, which is not
amenable to judgment for monetary claims without its consent. 16 However,
a public officer is by law not immune from damages in his/her personal
capacity for acts done in bad faith which, being outside the scope of his
authority, are no longer protected by the mantle of immunity for official
actions.17

Anent the second issue, we hold that the complaint filed by respondent
stated a cause of action and that the decisive provision thereon is Article
32 of the Civil Code.

Specifically, under Section 38, Book I of the Administrative Code, civil

liability may arise where there is bad faith, malice, or gross negligence on
the part of a superior public officer. And, under Section 39 of the same
Book, civil liability may arise where the subordinate public officers act is
characterized by willfulness or negligence. Thus

A general law and a special law on the same subject are statutes in pari
materia and should, accordingly, be read together and harmonized, if
possible, with a view to giving effect to both. The rule is that where there
are two acts, one of which is special and particular and the other general
which, if standing alone, would include the same matter and thus conflict
with the special act, the special law must prevail since it evinces the
legislative intent more clearly than that of a general statute and must not
be taken as intended to affect the more particular and specific provisions
of the earlier act, unless it is absolutely necessary so to construe it in order
to give its words any meaning at all.20

A general statute is one which embraces a class of subjects or places and

does not omit any subject or place naturally belonging to such class. A
special statute, as the term is generally understood, is one which relates to
particular persons or things of a class or to a particular portion or section
of the state only.19

Sec. 38. Liability of Superior Officers. (1) A public officer

shall not be civilly liable for acts done in the performance of his
official duties, unless there is a clear showing of bad faith, malice
or gross negligence.
xxxx

The circumstance that the special law is passed before or after the general
act does not change the principle. Where the special law is later, it will be
regarded as an exception to, or a qualification of, the prior general act; and
where the general act is later, the special statute will be construed as
remaining an exception to its terms, unless repealed expressly or by
necessary implication.21

Section 39. Liability of Subordinate Officers. No subordinate

officer or employee shall be civilly liable for acts done by him in
good faith in the performance of his duties. However, he shall be
liable for willful or negligent acts done by him which are contrary to
law, morals, public policy and good customs even if he acts under
orders or instructions of his superior.

Thus, in City of Manila v. Teotico,22 the Court held that Article 2189 of the
Civil Code which holds provinces, cities, and municipalities civilly liable for
death or injuries by reason of defective conditions of roads and other
public works, is a special provision and should prevail over Section 4 of
Republic Act No. 409, the Charter of Manila, in determining the liability for
defective street conditions. Under said Charter, the city shall not be held
for damages or injuries arising from the failure of the local officials to
enforce the provision of the charter, law, or ordinance, or from negligence
while enforcing or attempting to enforce the same. As explained by the
Court:

In addition, the Court held in Cojuangco, Jr. v. Court of Appeals,18 that a

public officer who directly or indirectly violates the constitutional rights of
another, may be validly sued for damages under Article 32 of the Civil
Code even if his acts were not so tainted with malice or bad faith.
Thus, the rule in this jurisdiction is that a public officer may be validly sued
in his/her private capacity for acts done in the course of the performance
of the functions of the office, where said public officer: (1) acted with
malice, bad faith, or negligence; or (2) where the public officer violated a
constitutional right of the plaintiff.

Manila maintains that the former provision should prevail over the
latter, because Republic Act 409 is a special law, intended

11

exclusively for the City of Manila, whereas the Civil Code is a

general law, applicable to the entire Philippines.

by a subsequent general law. The fact that one is special and the
other general creates a presumption that the special is to be
considered as remaining an exception of the general, one as a
general law of the land, the other as the law of a particular
case. However, the rule readily yields to a situation where
the special statute refers to a subject in general, which the
general statute treats in particular. Th[is] exactly is the
circumstance obtaining in the case at bar. Section 17 of the
Revised Charter of the City of Manila speaks of "ordinance"
in general, i.e., irrespective of the nature and scope
thereof, whereas, Section 43 of the Local Tax Code relates
to "ordinances levying or imposing taxes, fees or other
charges" in particular. In regard, therefore, to ordinances in
general, the Revised Charter of the City of Manila is
doubtless dominant, but, that dominant force loses its
continuity when it approaches the realm of "ordinances
levying or imposing taxes, fees or other charges" in
particular. There, the Local Tax Code controls. Here, as
always, a general provision must give way to a particular provision.
Special provision governs.

The Court of Appeals, however, applied the Civil Code, and, we

think, correctly. It is true that, insofar as its territorial application is
concerned, Republic Act No. 409 is a special law and the Civil Code
a general legislation; but, as regards the subject matter of the
provisions above quoted, Section 4 of Republic Act 409 establishes
a general rule regulating the liability of the City of Manila for
"damages or injury to persons or property arising from the failure
of" city officers "to enforce the provisions of" said Act "or any other
law or ordinance, or from negligence" of the city "Mayor, Municipal
Board, or other officers while enforcing or attempting to enforce
said provisions." Upon the other hand, Article 2189 of the Civil
Code constitutes a particular prescription making "provinces, cities
and municipalities . . . liable for damages for the death of, or injury
suffered by, any person by reason" specifically "of the
defective condition of roads, streets, bridges, public buildings, and
other public works under their control or supervision." In other
words, said section 4 refers to liability arising from
negligence, in general, regardless of the object thereof,
whereas Article 2189 governs liability due to "defective
streets," in particular. Since the present action is based
upon the alleged defective condition of a road, said Article
2189 is decisive thereon.23

Let us examine the provisions involved in the case at bar. Article 32 of the
Civil Code provides:
ART. 32. Any public officer or employee, or any private individual,
who directly or indirectly obstructs, defeats, violates, or in any
manner impedes or impairs any of the following rights and liberties
of another person shall be liable to the latter for damages:

In the case of Bagatsing v. Ramirez,24 the issue was which law should
govern the publication of a tax ordinance, the City Charter of Manila, a
special act which treats ordinances in general and which requires their
publication before enactment and after approval, or the Tax Code, a
general law, which deals in particular with "ordinances levying or imposing
taxes, fees or other charges," and which demands publication only after
approval. In holding that it is the Tax Code which should prevail, the Court
elucidated that:

xxxx
(6) The right against deprivation of property without due process of
law;
xxxx

There is no question that the Revised Charter of the City of Manila

is a special act since it relates only to the City of Manila, whereas
the Local Tax Code is a general law because it applies universally
to all local governments. Blackstone defines general law as a
universal rule affecting the entire community and special law as
one relating to particular persons or things of a class. And the rule
commonly said is that a prior special law is not ordinarily repealed

(8) The right to the equal protection of the laws;

xxxx

12

The rationale for its enactment was explained by Dean Bocobo of the Code
Commission, as follows:

Article 32 was patterned after the "tort" in American law. 27 A tort is a

wrong, a tortious act which has been defined as the commission or
omission of an act by one, without right, whereby another receives some
injury, directly or indirectly, in person, property, or reputation. 28 There are
cases in which it has been stated that civil liability in tort is determined by
the conduct and not by the mental state of the tortfeasor, and there are
circumstances under which the motive of the defendant has been rendered
immaterial. The reason sometimes given for the rule is that otherwise, the
mental attitude of the alleged wrongdoer, and not the act itself, would
determine whether the act was wrongful. 29 Presence of good motive, or
rather, the absence of an evil motive, does not render lawful an act which
is otherwise an invasion of anothers legal right; that is, liability in tort is
not precluded by the fact that defendant acted without evil intent. 30

"DEAN BOCOBO. Article 32, regarding individual rights, Attorney

Cirilo Paredes proposes that Article 32 be so amended as to make a
public official liable for violation of another persons constitutional
rights only if the public official acted maliciously or in bad faith.
The Code Commission opposes this suggestion for these reasons:
"The very nature of Article 32 is that the wrong may be civil or
criminal. It is not necessary therefore that there should be malice
or bad faith. To make such a requisite would defeat the main
purpose of Article 32 which is the effective protection of individual
rights. Public officials in the past have abused their powers on the
pretext of justifiable motives or good faith in the performance of
their duties. Precisely, the object of the Article is to put an end to
official abuse by the plea of good faith. In the United States this
remedy is in the nature of a tort.

The clear intention therefore of the legislature was to create a distinct

cause of action in the nature of tort for violation of constitutional rights,
irrespective of the motive or intent of the defendant. 31 This is a
fundamental innovation in the Civil Code, and in enacting the
Administrative Code pursuant to the exercise of legislative powers, then
President Corazon C. Aquino, could not have intended to obliterate this
constitutional protection on civil liberties.

"Mr. Chairman, this article is firmly one of the fundamental articles

introduced in the New Civil Code to implement democracy. There is
no real democracy if a public official is abusing and we made the
article so strong and so comprehensive that it concludes an abuse
of individual rights even if done in good faith, that official is liable.
As a matter of fact, we know that there are very few public officials
who openly and definitely abuse the individual rights of the
citizens. In most cases, the abuse is justified on a plea of desire to
enforce the law to comply with ones duty. And so, if we should
limit the scope of this article, that would practically nullify the
object of the article. Precisely, the opening object of the article is to
put an end to abuses which are justified by a plea of good faith,
which is in most cases the plea of officials abusing individual
rights."25

In Aberca v. Ver,32 it was held that with the enactment of Article 32, the
principle of accountability of public officials under the Constitution acquires
added meaning and assumes a larger dimension. No longer may a superior
official relax his vigilance or abdicate his duty to supervise his
subordinates, secure in the thought that he does not have to answer for
the transgressions committed by the latter against the constitutionally
protected rights and liberties of the citizen. Part of the factors that
propelled people power in February 1986 was the widely held perception
that the government was callous or indifferent to, if not actually
responsible for, the rampant violations of human rights. While it would
certainly be too naive to expect that violators of human rights would easily
be deterred by the prospect of facing damage suits, it should nonetheless
be made clear in no uncertain terms that Article 32 of the Civil Code makes
the persons who are directly, as well as indirectly, responsible for the
transgression, joint tortfeasors.

The Code Commission deemed it necessary to hold not only public officers
but also private individuals civilly liable for violation of the rights
enumerated in Article 32 of the Civil Code. It is not necessary that the
defendant under this Article should have acted with malice or bad faith,
otherwise, it would defeat its main purpose, which is the effective
protection of individual rights. It suffices that there is a violation of the
constitutional right of the plaintiff.26

On the other hand, Sections 38 and 39, Book I of the Administrative Code,
laid down the rule on the civil liability of superior and subordinate public
officers for acts done in the performance of their duties. For both superior
and subordinate public officers, the presence of bad faith, malice, and

13

negligence are vital elements that will make them liable for damages. Note
that while said provisions deal in particular with the liability of government
officials, the subject thereof is general, i.e., "acts" done in the performance
of official duties, without specifying the action or omission that may give
rise to a civil suit against the official concerned.

With costs.
SO ORDERED.

Contrarily, Article 32 of the Civil Code specifies in clear and unequivocal

terms a particular specie of an "act" that may give rise to an action for
damages against a public officer, and that is, a tort for impairment of rights
and liberties. Indeed, Article 32 is the special provision that deals
specifically with violation of constitutional rights by public officers. All other
actionable acts of public officers are governed by Sections 38 and 39 of the
Administrative Code. While the Civil Code, specifically, the Chapter on
Human Relations is a general law, Article 32 of the same Chapter is a
special and specific provision that holds a public officer liable for and
allows redress from a particular class of wrongful acts that may be
committed by public officers. Compared thus with Section 38 of the
Administrative Code, which broadly deals with civil liability arising from
errors in the performance of duties, Article 32 of the Civil Code is the
specific provision which must be applied in the instant case precisely filed
to seek damages for violation of constitutional rights.

ELEMENTS OF TORTS
Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 168512

March 20, 2007

ORLANDO D. GARCIA, JR., doing business under the name

and style COMMUNITY DIAGNOSTIC CENTER and BU
CASTRO,1 Petitioners,
vs.
RANIDA D. SALVADOR and RAMON SALVADOR, Respondents.

The complaint in the instant case was brought under Article 32 of the Civil
Code. Considering that bad faith and malice are not necessary in an action
based on Article 32 of the Civil Code, the failure to specifically allege the
same will not amount to failure to state a cause of action. The courts below
therefore correctly denied the motion to dismiss on the ground of failure to
state a cause of action, since it is enough that the complaint avers a
violation of a constitutional right of the plaintiff.

DECISION
YNARES-SANTIAGO, J.:
This is a petition for review2 under Rule 45 of the Rules of Court assailing
the February 27, 2004 Decision3 of the Court of Appeals in CA-G.R. CV No.
58668 finding petitioner Orlando D. Garcia liable for gross negligence; and
its June 16, 2005 Resolution4 denying petitioners motion for
reconsideration.

Anent the issue on non-compliance with the rule against forum shopping,
the subsequent submission of the secretarys certificate authorizing the
counsel to sign and execute the certification against forum shopping cured
the defect of respondents complaint. Besides, the merits of the instant
case justify the liberal application of the rules.33

On October 1, 1993, respondent Ranida D. Salvador started working as a

trainee in the Accounting Department of Limay Bulk Handling Terminal, Inc.
(the Company). As a prerequisite for regular employment, she underwent a
medical examination at the Community Diagnostic Center (CDC). Garcia
who is a medical technologist, conducted the HBs Ag (Hepatitis B Surface
Antigen) test and on October 22, 1993, CDC issued the test
result5 indicating that Ranida was "HBs Ag: Reactive." The result bore the
name and signature of Garcia as examiner and the rubber stamp signature
of Castro as pathologist.

WHEREFORE, in view of the foregoing, the petition is DENIED. The

Decision of the Court of Appeals dated May 7, 1999 which affirmed the
Order of the Regional Trial Court of Marikina, Branch 272, denying
petitioners motion to dismiss, is AFFIRMED. The Presiding Judge, Regional
Trial Court of Marikina, Branch 272, is hereby DIRECTEDto continue with
the proceedings in Civil Case No. 97-341-MK with dispatch.

14

When Ranida submitted the test result to Dr. Sto. Domingo, the Company
physician, the latter apprised her that the findings indicated that she is
suffering from Hepatitis B, a liver disease. Thus, based on the medical
report6submitted by Sto. Domingo, the Company terminated Ranidas
employment for failing the physical examination.7

Garcia denied the allegations of gross negligence and incompetence and

reiterated the scientific explanation for the "false positive" result of the
first HBs Ag test in his December 7, 1993 letter to the respondents. 15
For his part, Castro claimed that as pathologist, he rarely went to CDC and
only when a case was referred to him; that he did not examine Ranida; and
that the test results bore only his rubber-stamp signature.

When Ranida informed her father, Ramon, about her ailment, the latter
suffered a heart attack and was confined at the Bataan Doctors Hospital.
During Ramons confinement, Ranida underwent another HBs Ag test at
the said hospital and the result 8 indicated that she is non-reactive. She
informed Sto. Domingo of this development but was told that the test
conducted by CDC was more reliable because it used the Micro-Elisa
Method.

On September 1, 1997,16 the trial court dismissed the complaint for failure
of the respondents to present sufficient evidence to prove the liability of
Garcia and Castro. It held that respondents should have presented Sto.
Domingo because he was the one who interpreted the test result issued by
CDC. Likewise, respondents should have presented a medical expert to
refute the testimonies of Garcia and Castro regarding the medical
explanation behind the conflicting test results on Ranida. 17

Thus, Ranida went back to CDC for confirmatory testing, and this time, the
Anti-HBs test conducted on her indicated a "Negative" result. 9

Respondents appealed to the Court of Appeals which reversed the trial

courts findings, the dispositive portion of which states:

Ranida also underwent another HBs Ag test at the Bataan Doctors Hospital
using the Micro-Elisa Method. The result indicated that she was nonreactive.10

WHEREFORE, the decision appealed from is REVERSED and SET ASIDE and
another one entered ORDERING defendant-appellee Orlando D. Garcia, Jr.
to pay plaintiff-appellant Ranida D. Salvador moral damages in the amount
of P50,000.00, exemplary damages in the amount of P50,000.00 and
attorneys fees in the amount of P25,000.00.

Ranida submitted the test results from Bataan Doctors Hospital and CDC to
the Executive Officer of the Company who requested her to undergo
another similar test before her re-employment would be considered. Thus,
CDC conducted another HBs Ag test on Ranida which indicated a
"Negative" result.11 Ma. Ruby G. Calderon, Med-Tech Officer-in-Charge of
CDC, issued a Certification correcting the initial result and explaining that
the examining medical technologist (Garcia) interpreted the delayed
reaction as positive or reactive.12

SO ORDERED.18
The appellate court found Garcia liable for damages for negligently issuing
an erroneous HBs Ag result. On the other hand, it exonerated Castro for
lack of participation in the issuance of the results.

Thereafter, the Company rehired Ranida.

After the denial of his motion for reconsideration, Garcia filed the instant
petition.

On July 25, 1994, Ranida and Ramon filed a complaint13 for damages
against petitioner Garcia and a purportedly unknown pathologist of CDC,
claiming that, by reason of the erroneous interpretation of the results of
Ranidas examination, she lost her job and suffered serious mental anxiety,
trauma and sleepless nights, while Ramon was hospitalized and lost
business opportunities.

The main issue for resolution is whether the Court of Appeals, in reversing
the decision of the trial court, correctly found petitioner liable for damages
to the respondents for issuing an incorrect HBsAG test result.
Garcia maintains he is not negligent, thus not liable for damages, because
he followed the appropriate laboratory measures and procedures as
dictated by his training and experience; and that he did everything within

On September 26, 1994, respondents amended their complaint 14 by

naming Castro as the "unknown pathologist."

15

his professional competence to arrive at an objective, impartial and

impersonal result.

In fine, violation of a statutory duty is negligence. Where the law imposes

upon a person the duty to do something, his omission or non-performance
will render him liable to whoever may be injured thereby.

At the outset, we note that the issues raised are factual in nature. Whether
a person is negligent or not is a question of fact which we cannot pass
upon in a petition for review on certiorari which is limited to reviewing
errors of law.19

Section 2 of Republic Act (R.A.) No. 4688, otherwise known as The Clinical
Laboratory Law, provides:
Sec. 2. It shall be unlawful for any person to be professionally in-charge of
a registered clinical laboratory unless he is a licensed physician duly
qualified in laboratory medicine and authorized by the Secretary of Health,
such authorization to be renewed annually.

Negligence is the failure to observe for the protection of the interest of

another person that degree of care, precaution and vigilance which the
circumstances justly demand, 20 whereby such other person suffers injury.
For health care providers, the test of the existence of negligence is: did the
health care provider either fail to do something which a reasonably prudent
health care provider would have done, or that he or she did something that
a reasonably prudent health care provider would not have done; and that
failure or action caused injury to the patient; 21 if yes, then he is guilty of
negligence.

No license shall be granted or renewed by the Secretary of Health for the

operation and maintenance of a clinical laboratory unless such laboratory
is under the administration, direction and supervision of an authorized
physician, as provided for in the preceding paragraph.
Corollarily, Sections 9(9.1)(1), 11 and 25(25.1)(1) of the DOH
Administrative Order No. 49-B Series of 1988, otherwise known as the
Revised Rules and Regulations Governing the Registration, Operation and
Maintenance of Clinical Laboratories in the Philippines, read:

Thus, the elements of an actionable conduct are: 1) duty, 2) breach, 3)

injury, and 4) proximate causation.
All the elements are present in the case at bar.

Sec. 9. Management of the Clinical Laboratory:

Owners and operators of clinical laboratories have the duty to comply with
statutes, as well as rules and regulations, purposely promulgated to
protect and promote the health of the people by preventing the operation
of substandard, improperly managed and inadequately supported clinical
laboratories and by improving the quality of performance of clinical
laboratory examinations.22 Their business is impressed with public interest,
as such, high standards of performance are expected from them.

9.1 Head of the Clinical Laboratory: The head is that person who assumes
technical and administrative supervision and control of the activities in the
laboratory.
For all categories of clinical laboratories, the head shall be a licensed
physician certified by the Philippine Board of Pathology in either Anatomic
or Clinical Pathology or both provided that:

In F.F. Cruz and Co., Inc. v. Court of Appeals, we found the owner of a
furniture shop liable for the destruction of the plaintiffs house in a fire
which started in his establishment in view of his failure to comply with an
ordinance which required the construction of a firewall. In Teague v.
Fernandez, we stated that where the very injury which was intended to be
prevented by the ordinance has happened, non-compliance with the
ordinance was not only an act of negligence, but also the proximate cause
of the death.23

(1) This shall be mandatory for all categories of free-standing clinical

laboratories; all tertiary category hospital laboratories and for all
secondary category hospital laboratories located in areas with sufficient
available pathologist.
xxxx
Sec. 11. Reporting: All laboratory requests shall be considered as
consultations between the requesting physician and pathologist of the

16

laboratory. As such all laboratory reports on various examinations of

human specimens shall be construed as consultation report and shall bear
the name of the pathologist or his associate. No person in clinical
laboratory shall issue a report, orally or in writing, whole portions thereof
without a directive from the pathologist or his authorized associate and
only to the requesting physician or his authorized representative except in
emergencies when the results may be released as authorized by the
pathologist.

From the foregoing laws and rules, it is clear that a clinical laboratory must
be administered, directed and supervised by a licensed physician
authorized by the Secretary of Health, like a pathologist who is specially
trained in methods of laboratory medicine; that the medical technologist
must be under the supervision of the pathologist or a licensed physician;
and that the results of any examination may be released only to the
requesting physician or his authorized representative upon the direction of
the laboratory pathologist.

xxxx

These rules are intended for the protection of the public by preventing
performance of substandard clinical examinations by laboratories whose
personnel are not properly supervised. The public demands no less than an
effective and efficient performance of clinical laboratory examinations
through compliance with the quality standards set by laws and regulations.

Sec. 25. Violations:

25.1 The license to operate a clinical laboratory may be suspended or
revoked by the Undersecretary of Health for Standards and Regulation
upon violation of R.A. 4688 or the rules and regulations issued in
pursuance thereto or the commission of the following acts by the persons
owning or operating a clinical laboratory and the persons under their
authority.

We find that petitioner Garcia failed to comply with these standards.

(1) Operation of a Clinical Laboratory without a certified pathologist or

qualified licensed physician authorized by the Undersecretary of Health or
without employing a registered medical technologist or a person not
registered as a medical technologist in such a position.

First, CDC is not administered, directed and supervised by a licensed

physician as required by law, but by Ma. Ruby C. Calderon, a licensed
Medical Technologist.24 In the License to Open and Operate a Clinical
Laboratory for the years 1993 and 1996 issued by Dr. Juan R. Naagas,
M.D., Undersecretary for Health Facilities, Standards and Regulation,
defendant-appellee Castro was named as the head of CDC. 25 However, in
his Answer with Counterclaim, he stated:

And Section 29(b) of R.A. No. 5527, otherwise known as The Philippine
Medical Technology Act of 1969, reads:

3. By way of affirmative and special defenses, defendant pathologist

further avers and plead as follows:

Section 29. Penal Provisions.- Without prejudice to the provision of the

Medical Act of 1959, as amended relating to illegal practice of Medicine,
the following shall be punished by a fine of not less than two thousand
pesos nor more than five thousand pesos, or imprisonment for not less
than six months nor more than two years, or both, in the discretion of the
court:

Defendant pathologist is not the owner of the Community Diagnostic

Center nor an employee of the same nor the employer of its employees.
Defendant pathologist comes to the Community Diagnostic Center when
and where a problem is referred to him. Its employees are licensed under
the Medical Technology Law (Republic Act No. 5527) and are certified by,
and registered with, the Professional Regulation Commission after having
passed their Board Examinations. They are competent within the sphere of
their own profession in so far as conducting laboratory examinations and
are allowed to sign for and in behalf of the clinical laboratory. The
defendant pathologist, and all pathologists in general, are hired by
laboratories for purposes of complying with the rules and regulations and
orders issued by the Department of Health through the Bureau of Research
and Laboratories. Defendant pathologist does not stay that long period of
time at the Community Diagnostic Center but only periodically or

xxxx
(b) Any medical technologist, even if duly registered, who shall practice
medical technology in the Philippines without the necessary supervision of
a qualified pathologist or physician authorized by the Department of
Health;

17

whenever a case is referred to him by the laboratory. Defendant

pathologist does not appoint or select the employees of the laboratory nor
does he arrange or approve their schedules of duty.26

Art. 20. Every person who, contrary to law, willfully or negligently causes
damage to another, shall indemnify the latter for the same.
The foregoing provision provides the legal basis for the award of damages
to a party who suffers damage whenever one commits an act in violation of
some legal provision.30 This was incorporated by the Code Commission to
provide relief to a person who suffers damage because another has
violated some legal provision.31

Castros infrequent visit to the clinical laboratory barely qualifies as an

effective administrative supervision and control over the activities in the
laboratory. "Supervision and control" means the authority to act directly
whenever a specific function is entrusted by law or regulation to a
subordinate; direct the performance of duty; restrain the commission of
acts; review, approve, revise or modify acts and decisions of subordinate
officials or units.27

We find the Court of Appeals award of moral damages reasonable under

the circumstances bearing in mind the mental trauma suffered by
respondent Ranida who thought she was afflicted by Hepatitis B, making
her "unfit or unsafe for any type of employment." 32 Having established her
right to moral damages, we see no reason to disturb the award of
exemplary damages and attorneys fees. Exemplary damages are imposed,
by way of example or correction for the public good, in addition to moral,
temperate, liquidated or compensatory damages,33 and attorneys fees
may be recovered when, as in the instant case, exemplary damages are
awarded.34

Second, Garcia conducted the HBsAG test of respondent Ranida without

the supervision of defendant-appellee Castro, who admitted that:
[He] does not know, and has never known or met, the plaintiff-patient even
up to this time nor has he personally examined any specimen, blood, urine
or any other tissue, from the plaintiff-patient otherwise his own
handwritten signature would have appeared in the result and not merely
stamped as shown in Annex "B" of the Amended Complaint. 28

WHEREFORE, the Decision of the Court of Appeals in CA-G.R. CV No. 58668

dated February 27, 2004 finding petitioner Orlando D. Garcia, Jr. guilty of
gross negligence and liable to pay to respondents P50,000.00 as moral
damages, P50,000.00 as exemplary damages, and P25,000.00 as
attorneys fees, is AFFIRMED.

Last, the disputed HBsAG test result was released to respondent Ranida
without the authorization of defendant-appellee Castro.29
Garcia may not have intended to cause the consequences which followed
after the release of the HBsAG test result. However, his failure to comply
with the laws and rules promulgated and issued for the protection of public
safety and interest is failure to observe that care which a reasonably
prudent health care provider would observe. Thus, his act or omission
constitutes a breach of duty.

SO ORDERED.
THIRD DIVISION

LUCAS VS TUANO

Indubitably, Ranida suffered injury as a direct consequence of Garcias

failure to comply with the mandate of the laws and rules aforequoted. She
was terminated from the service for failing the physical examination;
suffered anxiety because of the diagnosis; and was compelled to undergo
several more tests. All these could have been avoided had the proper
safeguards been scrupulously followed in conducting the clinical
examination and releasing the clinical report.

PETER PAUL PATRICK LUCAS, FATIMA

GLADYS LUCAS, ABBEYGAIL LUCAS AND
GILLIAN LUCAS,
Petitioners,

Article 20 of the New Civil Code provides:

- versus -

18

G. R. No. 178763

Present:
YNARES-SANTIAGO, J.,
Chairperson,
AUSTRIA-MARTINEZ,
CHICO-NAZARIO,
NACHURA, and

PERALTA, JJ.

DR. PROSPERO MA. C. TUAO,

Respondent.

Prospero Ma. C. Tuao, M.D. (Dr. Tuao), an ophthalmologist at St.

Lukes Medical Center, for an eye consult.
Upon consultation with Dr. Tuao, Peter narrated that it had been
nine (9) days since the problem with his right eye began; and that he was
already taking Maxitrol to address the problem in his eye. According to Dr.
Tuao, he performed ocular routine examination on Peters eyes,
wherein: (1) a gross examination of Peters eyes and their surrounding
area was made; (2) Peters visual acuity were taken; (3) Peters eyes were
palpated to check the intraocular pressure of each; (4) the motility of
Peters eyes was observed; and (5) the ophthalmoscopy[4] on Peters eyes
was used. On that particular consultation, Dr. Tuao diagnosed that Peter
was suffering from conjunctivitis[5] or sore eyes. Dr. Tuao then
prescribed Spersacet-C[6] eye drops for Peter and told the latter to return
for follow-up after one week.

Promulgated:

April 21, 2009

x--------------------------------------------------x

DECISION

CHICO-NAZARIO, J.:

As instructed, Peter went back to Dr. Tuao on 9 September

1988. Upon examination, Dr. Tuao told Peter that the sore eyes in the
latters right eye had already cleared up and he could discontinue
the Spersacet-C. However, the
same
eye
developed Epidemic Kerato Conjunctivitis (EKC),[7] a viral infection. To
address the new problem with Peters right eye, Dr. Tuao prescribed to the
former a steroid-based eye drop called Maxitrol,[8] a dosage of six (6) drops
per day.[9] To recall, Peter had already been usingMaxitrol prior to his
consult with Dr. Tuao.

In this petition for review on certiorari[1] under Rule 45 of the

Revised Rules of Court, petitioners Peter Paul Patrick Lucas, Fatima Gladys
Lucas, Abbeygail Lucas and Gillian Lucas seek the reversal of the 27
September 2006 Decision[2] and 3 July 2007 Resolution,[3] both of the Court
of Appeals in CA-G.R. CV No. 68666, entitled Peter Paul Patrick Lucas,
Fatima Gladys Lucas, Abbeygail Lucas and Gillian Lucas v. Prospero Ma. C.
Tuao.
In the questioned decision and resolution, the Court of Appeals
affirmed the 14 July 2000 Decision of the Regional Trial Court (RTC), Branch
150, Makati City, dismissing the complaint filed by petitioners in a civil
case entitled, Peter Paul Patrick Lucas, Fatima Gladys Lucas, Abbeygail
Lucas and Gillian Lucas v. Prospero Ma. C. Tuao,docketed as Civil Case
No. 92-2482.

On 21 September 1988, Peter saw Dr. Tuao for a follow-up

consultation. After examining both of Peters eyes, Dr. Tuao instructed the
former to taper down[10] the dosage of Maxitrol, because the EKC in his
right eye had already resolved. Dr. Tuao specifically cautioned Peter that,
being a steroid, Maxitrol had to be withdrawn gradually; otherwise, the EKC
might recur.[11]

From the record of the case, the established factual antecedents of

the present petition are:

Complaining of feeling as if there was something in his eyes, Peter

returned to Dr. Tuao for another check-up on 6 October 1988. Dr. Tuao
examined Peters eyes and found that the right eye had once more
developed EKC. So, Dr. Tuao instructed Peter to resume the use
of Maxitrol at six (6) drops per day.

Sometime in August 1988, petitioner Peter Paul Patrick Lucas

(Peter) contracted sore eyes in his right eye.
On 2 September 1988, complaining of a red right eye and swollen
eyelid, Peter made use of his health care insurance issued by Philamcare
Health Systems, Inc. (Philamcare), for a possible consult. The Philamcare
Coordinator, Dr. Edwin Oca, M.D., referred Peter to respondent, Dr.

On his way home, Peter was unable to get a hold of Maxitrol, as it

was out of stock. Consequently, Peter was told by Dr. Tuano to take,
instead, Blephamide[12] another steroid-based medication, but with a lower

19

concentration, as substitute for the unavailable Maxitrol, to be used three

(3) times a day for five (5) days; two (2) times a day for five (5) days; and
then just once a day.[13]

Adverse reactions have occurred with steroid/antiinfective combination drugs which can be attributed to the
steroid component, the anti-infective component, or the
combination. Exact incidence figures are not available
since no denominator of treated patients is available.
Reactions occurring most often from the presence
of
the
anti-infective
ingredients
are
allergic
sensitizations. The reactions due to the steroid component
in decreasing order to frequency are elevation of intraocular pressure (IOP) with possible development of
glaucoma, infrequent optic nerve damage; posterior
subcapsular cataract formation; and delayed wound
healing.
Secondary
infection: The
development
of
secondary has occurred after use of combination
containing steroids and antimicrobials. Fungal infections of
the correa are particularly prone to develop coincidentally
with long-term applications of steroid. The possibility of
fungal invasion must be considered in any persistent
corneal ulceration where steroid treatment has been used.
Secondary bacterial ocular infection following
suppression of host responses also occurs.

Several days later, on 18 October 1988, Peter went to see Dr.

Tuao at his clinic, alleging severe eye pain, feeling as if his eyes were
about to pop-out, a headache and blurred vision. Dr. Tuao examined
Peters eyes and discovered that the EKC was again present in his right
eye. As a result, Dr. Tuao told Peter to resume the maximum dosage
of Blephamide.
Dr. Tuao saw Peter once more at the formers clinic on 4
November 1988. Dr. Tuaos examination showed that only the periphery
of Peters right eye was positive for EKC; hence, Dr. Tuao prescribed a
lower dosage of Blephamide.
It was also about this time that Fatima Gladys Lucas (Fatima),
Peters spouse, read the accompanying literature of Maxitrol and found
therein the following warning against the prolonged use of such steroids:
WARNING:
Prolonged use may result in glaucoma, with
damage to the optic nerve, defects in visual acuity and
fields of vision, and posterior, subcapsular cataract
formation. Prolonged use may suppress the host response
and thus increase the hazard of secondary ocular
infractions, in those diseases causing thinning of the
cornea or sclera, perforations have been known to occur
with the use of topical steroids. In acute purulent
conditions of the eye, steroids may mask infection or
enhance existing infection. If these products are used for
10 days or longer, intraocular pressure should be routinely
monitored even though it may be difficult in children and
uncooperative patients.

On 26 November 1988, Peter returned to Dr. Tuaos clinic,

complaining of feeling worse. [14] It appeared that the EKC had spread to
the whole of Peters right eye yet again. Thus, Dr. Tuao instructed Peter to
resume the use of Maxitrol. Petitioners averred that Peter already made
mention to Dr. Tuao during said visit of the above-quoted warning against
the prolonged use of steroids, but Dr. Tuao supposedly brushed aside
Peters concern as mere paranoia, even assuring him that the former was
taking care of him (Peter).
Petitioners further alleged that after Peters 26 November 1988
visit to Dr. Tuao, Peter continued to suffer pain in his right eye, which
seemed to progress, with the ache intensifying and becoming more
frequent.

Employment of steroid medication in the treatment

of herpes simplex requires great caution.

Upon waking in the morning of 13 December 1988, Peter had no

vision in his right eye. Fatima observed that Peters right eye appeared to
be bloody and swollen. [15]Thus, spouses Peter and Fatima rushed to the
clinic of Dr. Tuao. Peter reported to Dr. Tuao that he had been suffering
from constant headache in the afternoon and blurring of vision.

xxxx
ADVERSE REACTIONS:

20

Referring to you Mr. Peter Lucas for evaluation &

possible management. I initially saw him Sept. 2,
1988 because of conjunctivitis. The latter resolved and he
developed EKC for which I gave Maxitrol. The EKC was
recurrent after stopping steroid drops. Around 1 month of
steroid treatment, he noted blurring of vision & pain on the
R. however, I continued the steroids for the sake of the
EKC. A month ago, I noted iris atrophy, so I took the IOP
and it was definitely elevated. I stopped the steroids
immediately and has (sic) been treating him medically.

Upon examination, Dr. Tuao noted the hardness of Peters right

eye.
With
the
use
of
a tonometer[16] to
verify
the
[17]
exact intraocular pressure
(IOP) of Peters eyes, Dr. Tuao discovered
that the tension in Peters right eye was 39.0 Hg, while that of his left was
17.0 Hg.[18] Since the tension in Peters right eye was way over the normal
IOP, which merely ranged from 10.0 Hg to 21.0 Hg,[19] Dr. Tuao
ordered[20] him to immediately discontinue the use of Maxitrol and
prescribed to the latter Diamox[21] andNormoglaucon, instead.[22] Dr. Tuao
also required Peter to go for daily check-up in order for the former to
closely monitor the pressure of the latters eyes.
On 15 December 1988, the tonometer reading of Peters right eye
yielded a high normal level, i.e., 21.0 Hg. Hence, Dr. Tuao told Peter to
continue using Diamox andNormoglaucon. But upon Peters complaint of
stomach pains and tingling sensation in his fingers, [23] Dr. Tuao
discontinued Peters use of Diamox.[24]

It seems that the IOP can be controlled only with

oral Diamox, and at the moment, the EKC has recurred and
Im in a fix whether to resume the steroid or not
considering that the IOP is still uncontrolled. [32]

Peter went to see another ophthalmologist, Dr. Ramon T.

Batungbacal (Dr. Batungbacal), on 21 December 1988, who allegedly
conducted a complete ophthalmological examination of Peters eyes. Dr.
Batungbacals
diagnosis
was Glaucoma[25] O.D.[26] He
[27]
recommended Laser Trabeculoplasty
for Peters right eye.

On 29 December 1988, Peter went to see Dr. Agulto at the latters

clinic. Several tests were conducted thereat to evaluate the extent of
Peters condition. Dr. Agulto wrote Dr. Tuao a letter containing the
following findings and recommendations:
Thanks for sending Peter Lucas. On examination
conducted vision was 20/25 R and 20/20L. Tension curve
19 R and 15 L at 1210 H while on Normoglaucon BID OD &
Diamox tab every 6h po.

When Peter returned to Dr. Tuao on 23 December 1988,[28] the

tonometer measured the IOP of Peters right eye to be 41.0 Hg,[29] again,
way above normal. Dr. Tuao addressed the problem by advising Peter to
resume taking Diamox along with Normoglaucon.

Slit lamp evaluation[33] disclosed subepithelial

corneal defect outer OD. There was circumferential
peripheral iris atrophy, OD. The lenses were clear.
Funduscopy[34] showed vertical cup disc of 0.85 R
and 0.6 L with temporal slope R>L.

During the Christmas holidays, Peter supposedly stayed in bed

most of the time and was not able to celebrate the season with his family
because of the debilitating effects ofDiamox.[30]
On 28 December 1988, during one of Peters regular follow-ups
with Dr. Tuao, the doctor conducted another ocular routine examination
of Peters eyes. Dr. Tuao noted the recurrence of EKC in Peters right eye.
Considering, however, that the IOP of Peters right eye was still quite high
at 41.0 Hg, Dr. Tuao was at a loss as to how to balance the treatment of
Peters EKC vis--vis the presence of glaucoma in the same eye. Dr. Tuao,
thus, referred Peter to Dr. Manuel B. Agulto, M.D. (Dr. Agulto), another
ophthalmologist specializing in the treatment of glaucoma. [31] Dr. Tuaos
letter of referral to Dr. Agulto stated that:

Zeiss gonioscopy[35] revealed basically open angles

both eyes with occasional PAS,[36] OD.
Rolly, I feel that Peter Lucas has really sustained
significant glaucoma damage. I suggest that we do a
baseline visual fields and push medication to lowest
possible levels. If I may suggest further, I think we should
prescribe Timolol[37] BID[38] OD in lieu of Normoglaucon. If
the IOP is still inadequate, we may try Depifrin [39] BID OD

21

(despite low PAS). Im in favor of retaining Diamox or

similar CAI.[40]

According to petitioners, after Dr. Aquino conducted an extensive

evaluation of Peters eyes, the said doctor informed Peter that his eyes
were relatively normal, though the right one sometimes manifested
maximum borderline tension. Dr. Aquino also confirmed Dr. Tuaos
diagnosis of tubular vision in Peters right eye. Petitioners claimed that Dr.
Aquino essentially told Peter that the latters condition would require
lifetime medication and follow-ups.

If fields show further loss in say 3 mos. then we

should consider trabeculoplasty.
I trust that this approach will prove reasonable for
you and Peter.[41]

In May 1990 and June 1991, Peter underwent two (2) procedures of
laser trabeculoplasty to attempt to control the high IOP of his right
eye.

Peter went to see Dr. Tuao on 31 December 1988, bearing Dr.

Agultos aforementioned letter. Though Peters right and left eyes then
had normal IOP of 21.0 Hg and 17.0 Hg, respectively, Dr. Tuao still gave
him a prescription for Timolol B.I.D. so Peter could immediately start using
said medication. Regrettably, Timolol B.I.D. was out of stock, so Dr. Tuao
instructed Peter to just continue using Diamox and Normoglaucon in the
meantime.

Claiming to have steroid-induced glaucoma[45] and blaming Dr.

Tuao for the same, Peter, joined by: (1) Fatima, his spouse [46]; (2)
Abbeygail, his natural child[47]; and (3) Gillian, his legitimate child [48] with
Fatima, instituted on 1 September 1992, a civil complaint for damages
against Dr. Tuao, before the RTC, Branch 150, Quezon City. The case was
docketed as Civil Case No. 92-2482.

Just two days later, on 2 January 1989, the IOP of Peters right eye
remained elevated at 21.0 Hg,[42] as he had been without Diamox for the
past three (3) days.

In their Complaint, petitioners specifically averred that as the

direct consequence of [Peters] prolonged use of Maxitrol, [he] suffered
from steroid induced glaucoma which caused the elevation of his intraocular pressure. The elevation of the intra-ocular pressure of [Peters right
eye] caused the impairment of his vision which impairment is not curable
and may even lead to total blindness.[49]

On 4 January 1989, Dr. Tuao conducted a visual field study[43] of

Peters eyes, which revealed that the latter had tubular vision[44] in his right
eye, while that of his left eye remained normal. Dr. Tuao directed Peter to
religiously use the Diamox and Normoglaucon, as the tension of the latters
right eye went up even further to 41.0 Hg in just a matter of two (2) days,
in the meantime that Timolol B.I.D. and Depifrin were still not available in
the market. Again, Dr. Tuao advised Peter to come for regular check-up so
his IOP could be monitored.

Petitioners additionally alleged that the visual impairment of

Peters right eye caused him and his family so much grief. Because of his
present condition, Peter now needed close medical supervision forever; he
had already undergone two (2) laser surgeries, with the possibility that
more surgeries were still needed in the future; his career in sports casting
had suffered and was continuing to suffer; [50] his anticipated income had
been greatly reduced as a result of his limited capacity; he continually
suffered from headaches, nausea, dizziness, heart palpitations, rashes,
chronic rhinitis, sinusitis,[51] etc.; Peters relationships with his spouse and
children continued to be strained, as his condition made him highly
irritable and sensitive; his mobility and social life had suffered; his spouse,
Fatima, became the breadwinner in the family;[52] and his two children had
been deprived of the opportunity for a better life and educational
prospects. Collectively, petitioners lived in constant fear of Peter becoming
completely blind.[53]

Obediently, Peter went to see Dr. Tuao on the 7 th, 13th, 16th and
20 of January 1989 for check-up and IOP monitoring.
th

In the interregnum, however, Peter was prodded by his friends to

seek a second medical opinion. On 13 January 1989, Peter consulted Dr.
Jaime Lapuz, M.D. (Dr. Lapuz), an ophthalmologist, who, in turn, referred
Peter to Dr. Mario V. Aquino, M.D. (Dr. Aquino), another ophthalmologist
who specializes in the treatment of glaucoma and who could undertake the
long term care of Peters eyes.

22

In the end, petitioners sought pecuniary award for their supposed

pain and suffering, which were ultimately brought about by Dr.
Tuaos grossly negligent conduct in prescribing to Peter the
medicine Maxitrol for a period of three (3) months, without monitoring
Peters IOP, as required in cases of prolonged use of said medicine, and
notwithstanding Peters constant complaint of intense eye pain while using
the same. Petitioners particularly prayed that Dr. Tuao be adjudged liable
for the following amounts:

continually monitored the intraocular pressure of [Peters eyes] by

palpating the eyes and by putting pressure on the eyeballs, and no
hardening of the same could be detected, which meant that there was no
increase in the tension or IOP, a possible side reaction to the use of steroid
medications; and (3) it was only on 13 December 1988 that Peter
complained of a headache and blurred vision in his right eye, and upon
measuring the IOP of said eye, it was determined for the first time that the
IOP of the right eye had an elevated value.

1.
The amount of P2,000,000.00 to
plaintiff Peter Lucas as
and by way of
compensation for his impaired vision.

But granting for the sake of argument that the steroid treatment
of [Peters] EKC caused the steroid induced glaucoma, [59] Dr. Tuao argued
that:

2.
The
amount
of P300,000.00
to
spouses Lucas as and by
way of actual
damages
plus
such
additional
amounts
that
may be proven during trial.

[S]uch condition, i.e., elevated intraocular pressure, is

temporary. As soon as the intake of steroids is
discontinued, the intraocular pressure automatically is
reduced. Thus, [Peters] glaucoma can only be due to other
causes not attributable to steroids, certainly not
attributable to [his] treatment of more than three years
ago x x x.

3.
by way of moral

The amount of P1,000,000.00 as and

damages.

4.
way of exemplary

The amount of P500,000.00 as and by

damages.

5.
way of attorneys

The amount of P200,000.00 as and by

fees plus costs of suit.

From a medical point of view, as revealed by more

current examination of [Peter], the latters glaucoma can
only be long standing glaucoma, open angle glaucoma,
because of the large C:D ratio. The steroids provoked the
latest glaucoma to be revealed earlier as [Peter] remained
asymptomatic prior to steroid application. Hence, the
steroid treatment was in fact beneficial to [Peter] as it
revealed the incipient open angle glaucoma of [Peter] to
allow earlier treatment of the same.[60]

[54]

In rebutting petitioners complaint, Dr. Tuao asserted that the

treatment made by [him] more than three years ago has no causal
connection to [Peters] present glaucoma or condition. [55] Dr. Tuao
explained that [d]rug-induced glaucoma is temporary and curable,
steroids have the side effect of increasing intraocular pressure. Steroids
are prescribed to treat Epidemic Kerato Conjunctivitis or EKC which is an
infiltration of the cornea as a result of conjunctivitis or sore eyes. [56] Dr.
Tuao also clarified that (1) [c]ontrary to [petitioners] fallacious claim,
[he] did NOT continually prescribe the drug Maxitrol which contained
steroids for any prolonged period[57] and [t]he truth was the Maxitrol was
discontinued x x x as soon as EKC disappeared and was resumed only
when EKC reappeared[58]; (2) the entire time he was treating Peter, he

In a Decision dated 14 July 2000, the RTC dismissed Civil Case No.
92-2482 for insufficiency of evidence.[61] The decretal part of
said Decision reads:
Wherefore, premises considered, the instant
complaint is dismissed for insufficiency of evidence. The
counter claim (sic) is likewise dismissed in the absence of
bad faith or malice on the part of plaintiff in filing the suit.
[62]

23

The RTC opined that petitioners failed to prove by preponderance

of evidence that Dr. Tuao was negligent in his treatment of Peters
condition. In particular, the record of the case was bereft of any evidence
to establish that the steroid medication and its dosage, as prescribed by
Dr. Tuao, caused Peters glaucoma. The trial court reasoned that the
recognized standards of the medical community has not been established
in this case, much less has causation been established to render [Tuao]
liable.[63] According to the RTC:

On 27 September 2006, the Court of Appeals rendered a decision

in CA-G.R. CV No. 68666 denying petitioners recourse and affirming the
appealed RTC Decision. Thefallo of the judgment of the appellate court
states:
WHEREFORE,
AFFIRMED.[66]

[Petitioners] failed to establish the duty required of

a medical practitioner against which Peter Pauls treatment
by defendant can be compared with. They did not present
any medical expert or even a medical doctor to convince
and expertly explain to the court the established norm or
duty required of a physician treating a patient, or whether
the non taking (sic) by Dr. Tuao of Peter Pauls pressure a
deviation from the norm or his non-discovery of the
glaucoma in the course of treatment constitutes
negligence. It is important and indispensable to establish
such a standard because once it is established, a medical
practitioner who departed thereof breaches his duty and
commits negligence rendering him liable. Without such
testimony or enlightenment from an expert, the court is at
a loss as to what is then the established norm of duty of a
physician against which defendants conduct can be
compared with to determine negligence.[64]

the

Decision

appealed

from

is

The Court of Appeals faulted petitioners because they

[D]id not present any medical expert to testify that Dr.
Tuanos prescription of Maxitrol and Blephamide for the
treatment of EKC on Peters right eye was not proper and
that his palpation of Peters right eye was not enough to
detect adverse reaction to steroid. Peter testified that Dr.
Manuel Agulto told him that he should not have used
steroid for the treatment of EKC or that he should have
used it only for two (2) weeks, as EKC is only a viral
infection which will cure by itself. However, Dr. Agulto was
not presented by [petitioners] as a witness to confirm what
he allegedly told Peter and, therefore, the latters
testimony is hearsay. Under Rule 130, Section 36 of the
Rules of Court, a witness can testify only to those facts
which he knows of his own personal knowledge, x x x.
Familiar and fundamental is the rule that hearsay
testimony is inadmissible as evidence.[67]

The RTC added that in the absence of any medical evidence to the
contrary, this court cannot accept [petitioners] claim that the use of
steroid is the proximate cause of the damage sustained by [Peters]
eye.[65]

Like the RTC, the Court of Appeals gave great weight to Dr. Tuaos
medical judgment, specifically the latters explanation that:
[W]hen a doctor sees a patient, he cannot determine
whether or not the latter would react adversely to the use
of steroids, that it was only on December 13, 1989, when
Peter complained for the first time of headache and blurred
vision that he observed that the pressure of the eye of
Peter was elevated, and it was only then that he suspected
that Peter belongs to the 5% of the population who reacts
adversely to steroids.[68]

Correspondingly, the RTC accepted Dr. Tuaos medical opinion that

Peter Paul must have been suffering from normal tension glaucoma,
meaning, optic nerve damage was happening but no elevation of the eye
pressure is manifested, that the steroid treatment actually unmasked the
condition that resulted in the earlier treatment of the glaucoma. There is
nothing in the record to contradict such testimony. In fact, plaintiffs Exhibit
S even tends to support them.
Undaunted, petitioners appealed the foregoing RTC decision to the
Court of Appeals. Their appeal was docketed as CA-G.R. CV No. 68666.

24

Petitioners Motion for Reconsideration was denied by the Court of

Appeals in a Resolution dated 3 July 2007.

Evidently, said issue constitutes a question of fact, as we are asked

to revisit anew the factual findings of the Court of Appeals, as well as of
the RTC. In effect, petitioners would have us sift through the evidence on
record and pass upon whether there is sufficient basis to establish Dr.
Tuaos negligence in his treatment of Peters eye condition. This question
clearly involves a factual inquiry, the determination of which is not within
the ambit of this Courts power of review under Rule 45 of the 1997 Rules
Civil Procedure, as amended.[70]

Hence, this Petition for Review on Certiorari under Rule 45 of the

Revised Rules of Court premised on the following assignment of errors:
I.
THE COURT OF APPEALS COMMITTED GRAVE REVERSIBLE
ERROR IN AFFIRMING THE DECISION OF THE TRIAL COURT
DISMISSING THE PETITIONERS COMPLAINT FOR DAMAGES
AGAINST THE RESPONDENT ON THE GROUND OF
INSUFFICIENCY OF EVIDENCE;

Elementary is the principle that this Court is not a trier of facts;

only errors of law are generally reviewed in petitions for review
on certiorari criticizing decisions of the Court of Appeals. Questions of fact
are not entertained.[71]

II.

Nonetheless, the general rule that only questions of law may be

raised on appeal in a petition for review under Rule 45 of the Rules of Court
admits of certain exceptions, including the circumstance when the finding
of fact of the Court of Appeals is premised on the supposed absence of
evidence, but is contradicted by the evidence on record. Although
petitioners may not explicitly invoke said exception, it may be gleaned
from their allegations and arguments in the instant Petition.

THE COURT OF APPEALS COMMITTED GRAVE REVERSIBLE

ERROR IN DISMISSING THE PETITIONERS COMPLAINT FOR
DAMAGES AGAINST THE RESPONDENT ON THE GROUND
THAT NO MEDICAL EXPERT WAS PRESENTED BY THE
PETITIONERS TO PROVE THEIR CLAIM FOR MEDICAL
NEGLIGENCE AGAINST THE RESPONDENT; AND

Petitioners contend, that [c]ontrary to the findings of the

Honorable Court of Appeals, [they] were more than able to establish that:
Dr. Tuao ignored the standard medical procedure for ophthalmologists,
administered medication with recklessness, and exhibited an absence of
competence and skills expected from him. [72] Petitioners reject the
necessity of presenting expert and/or medical testimony to establish (1)
the standard of care respecting the treatment of the disorder affecting
Peters eye; and (2) whether or not negligence attended Dr. Tuaos
treatment of Peter, because, in their words

III.
THE COURT OF APPEALS COMMITTED GRAVE REVERSIBLE
ERROR IN NOT FINDING THE RESPONDENT LIABLE TO THE
PETITIONERS FOR ACTUAL, MORAL AND EXEMPLARY
DAMAGES, ASIDE FROM ATTORNEYS FEES, COSTS OF SUIT,
AS A RESULT OF HIS GROSS NEGLIGENCE. [69]

A reading of the afore-quoted reversible errors supposedly

committed by the Court of Appeals in its Decision and Resolution would
reveal that petitioners are fundamentally assailing the finding of the Court
of Appeals that the evidence on record is insufficient to establish
petitioners entitlement to any kind of damage. Therefore, it could be said
that the sole issue for our resolution in the Petition at bar is whether the
Court of Appeals committed reversible error in affirming the judgment of
the RTC that petitioners failed to prove, by preponderance of evidence,
their claim for damages against Dr. Tuao.

That Dr. Tuao was grossly negligent in the

treatment of Peters simple eye ailment is a simple case of
cause and effect. With mere documentary evidence and
based on the facts presented by the petitioners,
respondent can readily be held liable for damages even
without any expert testimony. In any case, however, and
contrary to the finding of the trial court and the Court of
Appeals, there was a medical expert presented by the
petitioner showing the recklessness committed by [Dr.
Tuao] Dr. Tuao himself. [Emphasis supplied.]

25

must be established by the plaintiff/s. All the four (4) elements must coexist in order to find the physician negligent and, thus, liable for damages.
[76]

They insist that Dr. Tuao himself gave sufficient evidence to

establish his gross negligence that ultimately caused the impairment of the
vision of Peters right eye, [73] i.e., that [d]espite [Dr. Tuaos] knowledge
that 5% of the population reacts adversely to Maxitrol, [he] had no qualms
whatsoever in prescribing said steroid to Peter without first determining
whether or not the (sic) Peter belongs to the 5%.[74]

When a patient engages the services of a physician, a physicianpatient relationship is generated. And in accepting a case, the physician,
for all intents and purposes, represents that he has the needed training
and skill possessed by physicians and surgeons practicing in the same
field; and that he will employ such training, care, and skill in the treatment
of the patient.[77] Thus, in treating his patient, a physician is under
a duty to [the former] to exercise that degree of care, skill and diligence
which physicians in the same general neighborhood and in the same
general line of practice ordinarily possess and exercise in like cases.
[78]
Stated otherwise, the physician has the duty to use at least the same
level of care that any other reasonably competent physician would use to
treat the condition under similar circumstances.

We are not convinced. The judgments of both the Court of Appeals

and the RTC are in accord with the evidence on record, and we are
accordingly bound by the findings of fact made therein.
Petitioners position, in sum, is that Peters glaucoma is the direct
result of Dr. Tuaos negligence in his improper administration of the
drug Maxitrol; thus, [the latter] should be liable for all the damages
suffered and to be suffered by [petitioners]. [75] Clearly, the present
controversy is a classic illustration of a medical negligence case against a
physician based on the latters professional negligence. In this type of suit,
the patient or his heirs, in order to prevail, is required to prove by
preponderance of evidence that the physician failed to exercise that
degree of skill, care, and learning possessed by other persons in the same
profession; and that as a proximate result of such failure, the patient or his
heirs suffered damages.

This standard level of care, skill and diligence is a matter best

addressed by expert medical testimony, because the standard of care in a
medical malpractice case is a matter peculiarly within the knowledge of
experts in the field.[79]
There is breach of duty of care, skill and diligence, or the improper
performance of such duty, by the attending physician when the patient
is injured in body or in health [and this] constitutes the actionable
malpractice.[80] Proof of such breach must likewise rest upon the testimony
of an expert witness that the treatment accorded to the patient failed to
meet the standard level of care, skill and diligence which physicians in the
same general neighborhood and in the same general line of practice
ordinarily possess and exercise in like cases.

For lack of a specific law geared towards the type of negligence

committed by members of the medical profession, such claim for damages
is almost always anchored on the alleged violation of Article 2176 of the
Civil Code, which states that:
ART. 2176. Whoever by act or omission causes
damage to another, there being fault or negligence, is
obliged to pay for the damage done. Such fault or
negligence, if there is no pre-existing contractual relation
between the parties, is called a quasi-delict and is
governed by the provisions of this Chapter.

Even so, proof of breach of duty on the part of the attending

physician is insufficient, for there must be a causal connection between
said breach and the resulting injury sustained by the patient. Put in
another way, in order that there may be a recovery for an injury, it must be
shown that the injury for which recovery is sought must be the legitimate
consequence of the wrong done; the connection between the negligence
and the injury must be a direct and natural sequence of events, unbroken
by intervening efficient causes;[81] that is, the negligence must be
the proximate cause of the injury. And the proximate cause of an injury is
that cause, which, in the natural and continuous sequence, unbroken by
any efficient intervening cause, produces the injury, and without which the
result would not have occurred.[82]

In medical negligence cases, also called medical malpractice suits,

there exist a physician-patient relationship between the doctor and the
victim. But just like any other proceeding for damages, four essential (4)
elements i.e., (1) duty; (2) breach; (3) injury; and (4) proximate causation,

26

damage to Peters right eye, i.e., his glaucoma, was the result of his use
of Maxitrol, as prescribed by Dr. Tuao. Petitioners failure to prove the first
element alone is already fatal to their cause.

Just as with the elements of duty and breach of the same, in order
to establish the proximate cause [of the injury] by a preponderance of the
evidence in a medical malpractice action, [the patient] must similarly use
expert testimony, because the question of whether the alleged
professional negligence caused [the patients] injury is generally one for
specialized expert knowledge beyond the ken of the average layperson;
using the specialized knowledge and training of his field, the experts role
is to present to the [court] a realistic assessment of the likelihood that [the
physicians] alleged negligence caused [the patients] injury. [83]

Petitioners maintain that Dr. Tuao failed to follow in Peters case

the required procedure for the prolonged use of Maxitrol. But what is
actually the required procedure in situations such as in the case at bar? To
be precise, what is the standard operating procedure when
ophthalmologists prescribe steroid medications which, admittedly, carry
some modicum of risk?

From the foregoing, it is apparent that medical negligence cases

are best proved by opinions of expert witnesses belonging in the same
general neighborhood and in the same general line of practice as
defendant physician or surgeon. The deference of courts to the expert
opinion of qualified physicians [or surgeons] stems from the formers
realization that the latter possess unusual technical skills which laymen in
most instances are incapable of intelligently evaluating; [84] hence, the
indispensability of expert testimonies.

Absent a definitive standard of care or diligence required of Dr.

Tuao under the circumstances, we have no means to determine whether
he was able to comply with the same in his diagnosis and treatment of
Peter. This Court has no yardstick upon which to evaluate or weigh the
attendant facts of this case to be able to state with confidence that the
acts complained of, indeed, constituted negligence and, thus, should be
the subject of pecuniary reparation.
Petitioners assert that prior to prescribing Maxitrol, Dr. Tuao
should have determined first whether Peter was a steroid
responder.[87] Yet again, petitioners did not present any convincing proof
that such determination is actually part of the standard operating
procedure which ophthalmologists should unerringly follow prior to
prescribing steroid medications.

In the case at bar, there is no question that a physician-patient

relationship developed between Dr. Tuao and Peter when Peter went to
see the doctor on 2 September 1988, seeking a consult for the treatment
of his sore eyes. Admittedly, Dr. Tuao, an ophthalmologist,
prescribed Maxitrol when
Peter
developed
and
had
recurrent
EKC. Maxitrol orneomycin/polymyxin
B
sulfates/dexamethasone ophthalmic ointment is a multiple-dose antiinfective steroid combination in sterile form for topical application. [85] It is
the drug which petitioners claim to have caused Peters glaucoma.

In contrast, Dr. Tuao was able to clearly explain that what is only
required of ophthalmologists, in cases such as Peters, is the conduct of
standard
tests/procedures
known
as
ocular
routine
examination,[88] composed of five (5) tests/procedures specifically, gross
examination of the eyes and the surrounding area; taking of the visual
acuity of the patient; checking the intraocular pressure of the patient;
checking the motility of the eyes; and using ophthalmoscopy on the
patients eye and he did all those tests/procedures every time Peter went
to see him for follow-up consultation and/or check-up.

However, as correctly pointed out by the Court of Appeals,

[t]he onus probandi was on the patient to establish before the trial court
that the physicians ignored standard medical procedure, prescribed and
administered medication with recklessness and exhibited an absence of
the competence and skills expected of general practitioners similarly
situated.[86] Unfortunately, in this case, there was absolute failure on the
part of petitioners to present any expert testimony to establish: (1) the
standard of care to be implemented by competent physicians in treating
the same condition as Peters under similar circumstances; (2) that, in his
treatment of Peter, Dr. Tuao failed in his duty to exercise said standard of
care that any other competent physician would use in treating the same
condition as Peters under similar circumstances; and (3) that the injury or

We cannot but agree with Dr. Tuaos assertion that when a doctor
sees a patient, he cannot determine immediately whether the latter would
react adversely to the use of steroids; all the doctor can do is map out a
course of treatment recognized as correct by the standards of the medical
profession. It must be remembered that a physician is not an insurer of the
good result of treatment. The mere fact that the patient does not get well

27

or that a bad result occurs does not in itself indicate failure to exercise due
care.[89] The result is not determinative of the performance [of the
physician] and he is not required to be infallible. [90]

diagnosed with open-angle glaucoma. This kind of glaucoma is

characterized by an almost complete absence of symptoms and a chronic,
insidious course.[94] In open-angle glaucoma, halos around lights and
blurring of vision do not occur unless there has been a sudden increase in
the intraocular vision.[95] Visual acuity remains good until late in the course
of the disease.[96] Hence, Dr. Tuao claims that Peters glaucoma can only
be long standing x x x because of the large C:D [97] ratio, and that [t]he
steroids provoked the latest glaucoma to be revealed earlier was a
blessing in disguise as [Peter] remained asymptomatic prior to steroid
application.

Moreover, that Dr. Tuao saw it fit to prescribe Maxitrol to Peter

was justified by the fact that the latter was already using the same
medication when he first came to see Dr. Tuao on 2 September 1988 and
had exhibited no previous untoward reaction to that particular drug. [91]
Also, Dr. Tuao categorically denied petitioners claim that he never
monitored the tension of Peters eyes while the latter was on Maxitrol. Dr.
Tuao testified that he palpated Peters eyes every time the latter came for
a check-up as part of the doctors ocular routine examination, a fact which
petitioners failed to rebut. Dr. Tuaos regular conduct of examinations and
tests to ascertain the state of Peters eyes negate the very basis of
petitioners complaint for damages. As to whether Dr. Tuaos actuations
conformed to the standard of care and diligence required in like
circumstances, it is presumed to have so conformed in the absence of
evidence to the contrary.

Who between petitioners and Dr. Tuao is in a better position to

determine and evaluate the necessity of using Maxitrol to cure Peters
EKC vis--vis the attendant risks of using the same?
That Dr. Tuao has the necessary training and skill to practice his
chosen field is beyond cavil. Petitioners do not dispute Dr. Tuaos
qualifications that he has been a physician for close to a decade and a
half at the time Peter first came to see him; that he has had various
medical training; that he has authored numerous papers in the field of
ophthalmology, here and abroad; that he is a Diplomate of the Philippine
Board of Ophthalmology; that he occupies various teaching posts (at the
time of the filing of the present complaint, he was the Chair of the
Department of Ophthalmology and an Associate Professor at the University
of the Philippines-Philippine General Hospital and St. Lukes Medical
Center, respectively); and that he held an assortment of positions in
numerous medical organizations like the Philippine Medical Association,
Philippine Academy of Ophthalmology, Philippine Board of Ophthalmology,
Philippine Society of Ophthalmic Plastic and Reconstructive Surgery,
Philippine
Journal
of
Ophthalmology,
Association
of
Philippine
Ophthalmology Professors, et al.

Even if we are to assume that Dr. Tuao committed negligent acts

in his treatment of Peters condition, the causal connection between Dr.
Tuaos supposed negligence and Peters injury still needed to be
established. The critical and clinching factor in a medical negligence case
is proof of the causal connection between the negligence which the
evidence established and the plaintiffs injuries. [92] The plaintiff must plead
and prove not only that he has been injured and defendant has been at
fault, but also that the defendants fault caused the injury. A verdict in a
malpractice action cannot be based on speculation or conjecture.
Causation must be proven within a reasonable medical probability based
upon competent expert testimony.[93]
The causation between the physicians negligence and the
patients injury may only be established by the presentation of proof that
Peters glaucoma would not have occurred but for Dr. Tuaos supposed
negligent conduct. Once more, petitioners failed in this regard.

It must be remembered that when the qualifications of a physician

are admitted, as in the instant case, there is an inevitable presumption
that in proper cases, he takes the necessary precaution and employs the
best of his knowledge and skill in attending to his clients, unless the
contrary is sufficiently established.[98] In making the judgment call of
treating Peters EKC with Maxitrol, Dr. Tuao took the necessary precaution
by palpating Peters eyes to monitor their IOP every time the latter went
for a check-up, and he employed the best of his knowledge and skill
earned from years of training and practice.

Dr. Tuao does not deny that the use of Maxitrol involves the risk of
increasing a patients IOP. In fact, this was the reason why he made it a
point to palpate Peters eyes every time the latter went to see him -- so he
could monitor the tension of Peters eyes. But to say that said medication
conclusively caused Peters glaucoma is purely speculative. Peter was

28

In contrast, without supporting expert medical opinions,

petitioners bare assertions of negligence on Dr. Tuaos part, which
resulted in Peters glaucoma, deserve scant credit.

Herein, the burden of proof was clearly upon petitioners, as

plaintiffs in the lower court, to establish their case by a preponderance of
evidence showing a reasonable connection between Dr. Tuaos alleged
breach of duty and the damage sustained by Peters right eye. This, they
did not do. In reality, petitioners complaint for damages is merely
anchored on a statement in the literature of Maxitrol identifying the risks of
its use, and the purported comment of Dr. Agulto another doctor not
presented as witness before the RTC concerning the prolonged use
of Maxitrol for the treatment of EKC.

Our disposition of the present controversy might have been vastly

different had petitioners presented a medical expert to establish their
theory respecting Dr. Tuaos so-called negligence. In fact, the record of
the case reveals that petitioners counsel recognized the necessity of
presenting such evidence. Petitioners even gave an undertaking to the RTC
judge that Dr. Agulto or Dr. Aquino would be presented. Alas, no followthrough on said undertaking was made.

It seems basic that what constitutes proper medical treatment is a

medical question that should have been presented to experts. If no
standard is established through expert medical witnesses, then courts
have no standard by which to gauge the basic issue of breach thereof by
the physician or surgeon. The RTC and Court of Appeals, and even this
Court, could not be expected to determine on its own what medical
technique should have been utilized for a certain disease or injury. Absent
expert medical opinion, the courts would be dangerously engaging in
speculations.

The plaintiff in a civil case has the burden of proof as he alleges

the affirmative of the issue. However, in the course of trial in a civil case,
once plaintiff makes out a primafacie case in his favor, the duty or the
burden
of
evidence
shifts
to
defendant
to
controvert
plaintiffs prima facie case; otherwise, a verdict must be returned in favor
of plaintiff.[99] The party having the burden of proof must establish his case
by a preponderance of evidence.[100] The concept of preponderance of
evidence refers to evidence which is of greater weight or more convincing
than that which is offered in opposition to it; [101] in the last analysis, it
means probability of truth. It is evidence which is more convincing to the
court as worthy of belief than that which is offered in opposition thereto.
[102]
Rule 133, Section 1 of the Revised Rules of Court provides the
guidelines for determining preponderance of evidence, thus:

All told, we are hard pressed to find Dr. Tuao liable for any medical
negligence or malpractice where there is no evidence, in the nature of
expert testimony, to establish that in treating Peter, Dr. Tuao failed to
exercise reasonable care, diligence and skill generally required in medical
practice. Dr. Tuaos testimony, that his treatment of Peter conformed in
all respects to standard medical practice in this locality, stands unrefuted.
Consequently, the RTC and the Court of Appeals correctly held that they
had no basis at all to rule that petitioners were deserving of the various
damages prayed for in their Complaint.

In civil cases, the party having the burden of proof

must establish his case by a preponderance of evidence. In
determining where the preponderance or superior weight
of evidence on the issues involved lies the court may
consider all the facts and circumstances of the case, the
witnesses manner of testifying, their intelligence, their
means and opportunity of knowing the facts to which they
are testifying, the nature of the facts to which they testify,
the probability or improbability of their testimony, their
interest or want of interest, and also their personal
credibility so far as the same legitimately appear upon the
trial. The court may also consider the number of
witnesses, though the preponderance is not necessarily
with the greater number.

WHEREFORE, premises considered, the instant petition

is DENIED for lack of merit. The assailed Decision dated 27 September
2006 and Resolution dated 3 July 2007,both of the Court of Appeals in CAG.R. CV No. 68666, are hereby AFFIRMED. No cost.
SO ORDERED.

Republic of the Philippines

SUPREME COURT
Baguio City

29

THIRD DIVISION
G.R. No. 150898

At about 8 oclock in the evening of the same day, April 13, 1995,
Bladimirs parents-respondent spouses Cubacub, with their friend Dr.
Hermes Frias (Dr. Frias), arrived at the Caybiga Hospital and transferred
Bladimir to the Quezon City General Hospital (QCGH) where he was placed
in the intensive care unit and died the following day, April 14, 1995.

April 13, 2011

OCEAN BUILDERS CONSTRUCTION CORP., and/or DENNIS

HAO, Petitioners,
vs.
SPOUSES ANTONIO and ANICIA CUBACUB, Respondents.

The death certificate issued by the QCGH recorded Bladimirs immediate

cause of death as cardio-respiratory arrest and the antecedent cause as
pneumonia. On the other hand, the death certificate issued by Dr. Frias
recorded the causes of death as cardiac arrest, multiple organ system
failure, septicemia and chicken pox.

DECISION
CARPIO MORALES, J.:

Bladimirs parents-herein respondents later filed on August 17, 1995 before

the Tarlac Regional Trial Court (RTC) at Capas a complaint for
damages against petitioners, alleging that Hao was guilty of negligence
which resulted in the deterioration of Bladimirs condition leading to his
death.

Bladimir Cubacub (Bladimir) was employed as maintenance man by

petitioner company Ocean Builders Construction Corp. at its office in
Caloocan City.
On April 9, 1995, Bladimir was afflicted with chicken pox. He was thus
advised by petitioner Dennis Hao (Hao), the companys general manager,
to rest for three days which he did at the companys "barracks" where he
lives free of charge.

By Decision of April 14, 1997,1 Branch 66 of the Tarlac RTC at Capas

dismissed the complaint, holding that Hao was not negligent. It ruled that
Hao was not under any obligation to bring Bladimir to better tertiary
hospitals, and assuming that Bladimir died of chicken pox aggravated by
pneumonia or some other complications due to lack of adequate facilities
at the hospital, the same cannot be attributed to Hao.

Three days later or on April 12, 1995, Bladimir went about his usual chores
of manning the gate of the company premises and even cleaned the
company vehicles. Later in the afternoon, however, he asked a co-worker,
Ignacio Silangga (Silangga), to accompany him to his house in Capas,
Tarlac so he could rest. Informed by Silangga of Bladimirs intention, Hao
gave Bladimir P1,000.00 and ordered Silangga to instead bring Bladimir to
the nearest hospital.

On respondents appeal, the Court of Appeals, by Decision of June 22,

2001, reversed the trial courts decision, holding that by Haos failure to
bring Bladimir to a better-equipped hospital, he violated Article 161 of the
Labor Code. It went on to state that Hao should have foreseen that
Bladimir, an adult, could suffer complications from chicken pox and, had he
been brought to hospitals like St. Lukes, Capitol Medical Center, Philippine
General Hospital and the like, Bladimir could have been saved.

Along with co-workers Narding and Tito Vergado, Silangga thus brought
Bladimir to the Caybiga Community Hospital (Caybiga Hospital), a primarycare hospital around one kilometer away from the office of the company.

Thus the appellate court disposed:

The hospital did not allow Bladimir to leave the hospital. He was then
confined, with Narding keeping watch over him. The next day, April 13,
1995, a doctor of the hospital informed Narding that they needed to talk to
Bladimirs parents, hence, on Silanggas request, their co-workers June
Matias and Joel Edrene fetched Bladimirs parents from Tarlac.

WHEREFORE, the decision of the Regional Trial Court of Capas, Tarlac,

Branch 66 in Civil Case No. 349 dated April 14, 1997 is hereby REVERSED
and SET ASIDE and a new one rendered holding the defendants solidarily
liable to plaintiffs-appellants for the following:
1. P50,000.00 for the life of Bladimir Cubacub;

30

2. P584,630.00 for loss of Bladimirs earning capacity;

employees under Art. 161 of the Labor Code, failing which a breach is
committed.

3. P4,834.60 as reimbursement of expenses incurred at Quezon

City General Hospital as evidenced by Exhibits "E" to "E-14"
inclusive;

Art. 161 of the Labor Code provides:

4. P18,107.75 as reimbursement of expenses for the 5-day wake

covered by Exhibits "F" to "F-17";

ART. 161. Assistance of employer. It shall be the duty of any employer to

provide all the necessary assistance to ensure the adequate and
immediate medical and dental attendance and treatment to an injured or
sick employee in case of emergency. (emphasis and underscoring supplied)

5. P30,000.00 as funeral expenses at Prudential Funeral Homes

covered by Exhibit "I";

The Implementing Rules of the Code do not enlighten what the phrase
"adequate and immediate" medical attendance means in relation to an
"emergency." It would thus appear that the determination of what it means
is left to the employer, except when a full-time registered nurse or
physician are available on-site as required, also under the Labor Code,
specifically Art. 157 which provides:

6. P6,700.00 for acquisition of memorial lot at Sto. Rosario

Memorial Park covered by Exhibit "J";
7. P50,000.00 as moral damages;

Article 157. Emergency Medical and Dental Services. It shall be the duty
of every employer to furnish his employees in any locality with free
medical and dental attendance and facilities consisting of:

8. P20,000.00 as exemplary damages;

9. P15,000.00 as attorneys fees and

(a) The services of a full-time registered nurse when the number of

employees exceeds fifty (50) but not more than two hundred (200)
except when the employer does not maintain hazardous
workplaces, in which case, the services of a graduate first-aider
shall be provided for the protection of workers, where no registered
nurse is available. The Secretary of Labor and Employment shall
provide by appropriate regulations, the services that shall be
required where the number of employees does not exceed fifty
(50) and shall determine by appropriate order, hazardous
workplaces for purposes of this Article;

10. Cost of suit.

SO ORDERED.2
The motion for reconsideration was denied by Resolution 3 of November 26,
2001, hence this petition.
Petitioners maintain that Hao exercised the diligence more than what the
law requires, hence, they are not liable for damages.
The petition is meritorious.

(b) The services of a full-time registered nurse, a part-time

physician and dentist, and an emergency clinic, when the number
of employees exceeds two hundred (200) but not more than three
hundred (300); and

At the onset, the Court notes that the present case is one for damages
based on torts, the employer-employee relationship being merely
incidental. To successfully prosecute an action anchored on torts, three
elements must be present, viz: (1) duty (2) breach (3) injury and proximate
causation. The assailed decision of the appellate court held that it was the
duty of petitioners to provide adequate medical assistance to the

(c) The services of a full-time physician, dentist and a full-time

registered nurse as well as a dental clinic and an infirmary or
emergency hospital with one bed capacity for every one hundred

31

(100) employees when the number of employees exceeds three

hundred (300). (emphasis and underscoring supplied)

appellate courts or even the trial courts decision is there any such definite
finding that Bladimir contracted chicken pox from a co-worker. At best, the
only allusion to another employee being afflicted with chicken pox was
when Hao testified that he knew it to heal within three days as was the
case of another worker, without reference, however, as to when it
happened.7

In the present case, there is no allegation that the company premises are
hazardous. Neither is there any allegation on the number of employees the
company has. If Haos testimony4 would be believed, the company had
only seven regular employees and 20 contractual employees still short of
the minimum 50 workers that an establishment must have for it to be
required to have a full-time registered nurse.

On the issue of which of the two death certificates is more credible, the
dissent, noting that Dr. Frias attended to Bladimir during his "last illness,"
holds that the certificate which he issued citing chicken pox as
antecedent cause deserves more credence.

The Court can thus only determine whether the actions taken by
petitioners when Bladimir became ill amounted to the "necessary
assistance" to ensure "adequate and immediate medical . . . attendance"
to Bladimir as required under Art. 161 of the Labor Code.

There appears, however, to be no conflict in the two death certificates on

the immediate cause of Bladimirs death since both cite cardio-respiratory
arrest due to complications from pneumonia per QCGH, septicemia and
chicken pox per Dr. Frias. In fact, Dr. Frias admitted that the causes of
death in both certificates were the same.8

As found by the trial court and borne by the records, petitioner Haos
advice for Bladimir to, as he did, take a 3-day rest and to later have him
brought to the nearest hospital constituted "adequate and immediate
medical" attendance that he is mandated, under Art. 161, to provide to a
sick employee in an emergency.

Be that as it may, Dr. Frias could not be considered as Bladimirs attending

physician, he having merely ordered Bladimirs transfer to the QCGH after
seeing him at the Caybiga Hospital. He thereafter left Bladimir to the care
of doctors at QCGH, returning to Capas, Tarlac at 4 oclock the following
morning or eight hours after seeing Bladimir. As he himself testified upon
cross-examination, he did not personally attend to Bladimir anymore once
the latter was brought to the ICU at QCGH.9

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

background. He may not be thus expected to have known that Bladimir
needed to be brought to a hospital with better facilities than the Caybiga
Hospital, contrary to appellate courts ruling.

It bears emphasis that a duly-registered death certificate is considered a

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

AT ALL EVENTS, the alleged negligence of Hao cannot be considered as the

proximate cause of the death of Bladimir. Proximate cause is that which, in
natural and continuous sequence, unbroken by an efficient intervening
cause, produces injury, and without which, the result would not have
occurred.5 An injury or damage is proximately caused by an act or failure to
act, whenever it appears from the evidence in the case that the act or
omission played a substantial part in bringing about or actually causing the
injury or damage, and that the injury or damage was either a direct result
or a reasonably probable consequence of the act or omission.6

IN FINE, petitioner company and its co-petitioner manager Dennis Hao are
not guilty of negligence.1avvphil

Verily, the issue in this case is essentially factual in nature. The dissent,
apart from adopting the appellate courts findings, finds that Bladimir
contracted chicken pox from a co-worker and Hao was negligent in not
bringing that co-worker to the nearest physician, or isolating him as well.
This finding is not, however, borne by the records. Nowhere in the

WHEREFORE, the petition is GRANTED. The challenged Decision of the

Court of Appeals is REVERSED, and the complaint is hereby DISMISSED.

32

CONCHITA
Associate Justice

CARPIO

MORALES

The respondents appealed to the Court of Appeals (CA), which reversed the
RTC. The CA held that the respondents established the petitioners liability
by preponderant evidence, and, accordingly, found that Bladimirs health
had deteriorated because he had been made to work despite his illness
and because Hao, as the manager of OBCC, had denied Bladimirs request
to take a vacation; that prior to his collapse, Bladimir had been suffering
from the complications of chicken pox and had needed immediate medical
treatment; and that the petitioners did not extend the requisite assistance
to Bladimir despite their employers duty under Article 161 of the Labor
Code to provide medical attention and treatment to an injured or sick
employee in times of emergency.

DISSENTING OPINION
BERSAMIN, J.:
I dissent.
I find myself unable to join my Honorable Brethren in the Third Division in
the result to be reached herein. My review of the records constrains me to
travel the lonely path, convinced to now forsake unanimity in order to urge
giving just solace to the aggrieved parents of a poor employee who died
from the complications of chicken pox after his employers forced him to
continue on the job despite his affliction that, in the first place, he had
contracted in the workplace from a co-employee. To me, his death was
wrongful by reason of the employers failure: (a) to isolate the co-worker to
prevent the spread of chicken pox; (b) to provide to him the legally
mandated first aid treatment; and (c) to extend adequate medical and
other assistance for his affliction with chicken pox and the expected
complications of the affliction (like letting him off from work in order to
have complete rest).

The CA then disposed thuswise:

WHEREFORE, the decision of the Regional Trial Court of Capas, Tarlac,
Branch 66 in Civil Case No. 349 dated dated April 14, 1997 is hereby
REVERSED and SET ASIDE and a new one rendered holding the defendants
solidarily liable to plaintiffs-appellants for the following:
1. P50,000.00 for the life of Bladimir Cubacub;
2. P584,630.00 for loss of Bladimir's earning capacity;

Antecedents
3. P4,834.60 as reimbursement of expenses incurred at Quezon
City General Hospital as evidenced by Exhibit "E" to "E-14"
inclusive;

This action concerns the damages claimed by the respondents, plaintiffs

below, arising from the untimely death of their son, Bladimir Cubacub,
while employed by Ocean Builders Construction Corporation (OBCC), then
managed by petitioner Dennis Hao. Bladimir had contracted chicken pox
and a cough and had later on collapsed in the workplace and rushed to the
hospital. In its decision dated April 14, 1997, the RTC absolved the
petitioners of any liability, and dismissed the complaint and the
counterclaim, ruling that the proximate cause of Bladimirs death could not
be attributed to the petitioners, particularly because the death certificate
issued by the Quezon City General Hospital (QCGH) did not state chicken
pox to be the cause of death, unlike the death certificate issued by Dr.
Hermes Frias. The RTC observed that Bladimir, being already of age, had
been responsible for his own act of reporting to work despite his illness;
that chicken pox was not a serious disease requiring hospitalization, but a
self-limiting one that would heal by itself if proper care of the patient was
taken; and that the petitioners as employers were not mandated by any
law to send Bladimir to a hospital.

4. P18,107.75 as reimbursement of expenses for the 5-day wake

covered by Exhibits "F" to "F-17";
5. P30,000.00 as funeral expenses at Prudential Funeral Homes
covered by Exhibit "I";
6. P6,700.00 for acquisition of memorial lot at Sto. Rosario
Memorial Park covered by Exhibit "J";
7. P50,000.00 as moral damages;
8. P20,000.00 as exemplary damages;
9. P15,000.00 as attorney's fees; and

33

10. Cost of suit.

The respondents have anchored their action for damages on the provisions
of the Civil Code on quasi-delict and human relations.

SO ORDERED.1
Under the concept of quasi-delict, whoever by act or omission causes
damage to another, there being fault or negligence, is obliged to pay for
the damage done.2 To sustain a claim based on quasi-delict, the following
requisites must concur: (a) there must be damage caused to the plaintiff;
(b) there must be negligence by act or omission, of which the defendant or
some other person for whose acts the defendant must respond was guilty;
and (c) there must be a connection of cause and effect between such
negligence and the damage.3

The petitioners sought reconsideration, but the CA rebuffed them.

Hence, this appeal, wherein the petitioners contend that the CA erred in
concluding that they had not exercised the diligence of a good father of a
family and in giving weight to the death certificate issued by Dr. Frias.
Submission

Negligence, according to Layugan v. Intermediate Appellate Court,4 is "the

omission to do something which a reasonable man, guided by those
considerations which ordinarily regulate the conduct of human affairs,
would do, or the doing of something which a prudent and reasonable man
would not do,5 or as Judge Cooley defines it, 6(t)he failure to observe for the
protection of the interests of another person, that degree of care,
precaution, and vigilance which the circumstances justly demand, whereby
such other person suffers injury."7

The appeal has no merit.

1.
CA
must
be
upheld
on
its
the appeal involves essentially factual issues

resolution

because

The petitioners, conscious that they hereby raise issues essentially factual
in nature, submit that their appeal should be given due course as an
exception pursuant to Fuentes v. Court of Appeals (G.R. No. 109849,
February 26, 1997, 268 SCRA 703) because the factual findings of the CA
conflicted with those of the RTC.

The test for the existence of negligence in a particular case has been aptly
put in Picart v. Smith,8 thuswise:
The test by which to determine the existence of negligence in a particular
case may be stated as follows: Did the defendant in doing the alleged
negligent act use that reasonable care and caution which an
ordinarily prudent person would have used in the same situation?
If not, then he is guilty of negligence. The law here in effect adopts
the standard supposed to be supplied by the imaginary conduct of the
discreet paterfamiliasof the Roman law. The existence of negligence in a
given case is not determined by reference to the personal judgment of the
actor in the situation before him. The law considers what would be
reckless, blameworthy, or negligent in the man of ordinary
intelligence and prudence and determines liability by that.

I am not persuaded that we should give due course to the appeal on that
basis. The mere variance between the factual findings of the trial and
appellate courts does not necessarily indicate that the CAs ruling was
erroneous, or less worthy than the RTCs. The petitioners burden was to
present strong cogent reasons to convince the Court to reverse the CA, but
their reasons were weak and contrary to the records. The CA, acting as the
reviewing court vis--vis the RTC, reasonably considered and appreciated
the records of the trial; hence, its appreciation and determination of the
factual and legal issues are entitled to great respect. Thus, the CAs ruling
should be affirmed, not reversed.

The question as to what would constitute the conduct of a prudent

man in a given situation must of course be always determined in
the light of human experience and in view of the facts involved in
the particular case. Abstract speculation cannot here be of much value
but this much can be profitably said:Reasonable men govern their
conduct by the circumstances which are before them or known to

2.
Petitioners
were
the wrongful death of Bladimir

guilty

for

34

them. They are not, and are not supposed to be, omniscient of the
future. Hence they can be expected to take care only when there
is something before them to suggest or warn of danger. Could a
prudent man, in the case under consideration, foresee harm as a result of
the course actually pursued? If so, it was the duty of the actor to take
precautions to guard against that harm. Reasonable foresight of harm,
followed by the ignoring of the suggestion born of this prevision,
is always necessary before negligence can be held to exist. Stated
in these terms, the proper criterion for determining the existence of
negligence in a given case is this: Conduct is said to be negligent
when a prudent man in the position of the tortfeasor would have
foreseen that an effect harmful to another was sufficiently
probable to warrant his foregoing the conduct or guarding against
its consequences.9

did, and to later have Bladimir brought to the nearest hospital constituted
the adequate and immediate medical attendance Article 161 mandated;
and that given that chicken pox was self-limiting, Hao, who did not appear
to have a medical background, might not be expected to have known that
Bladimir needed to be brought to a hospital with better facilities than the
Caybiga Hospital.
The Majority further hold that the alleged negligence of Hao could not be
the proximate cause of the death of Bladimir, because whatever he did or
did not do played no substantial part in bring about or actually causing the
injury or damage; hence, the death of Bladimir was neither the direct result
nor a reasonably probable consequence of Haos act or omission; that
there was nothing in the records to show that Bladimir had contracted the
chicken pox from an afflicted co-worker whom Hao negligently did not
bring to the nearest physician, or did not isolate from his co-workers; that
both lower courts did not make any definite finding that Bladimir had
contracted the chicken pox from a co-worker; and that the only allusion to
another employee being afflicted with chicken pox was made by Hao when
he testified that he had known that chicken pox would heal within three
days "as was the case of another worker, without reference, however, as to
when it happened."13

Negligence is a relative term, not an absolute one, because its application

depends upon the situation of the parties and the reasonable degree of
care and vigilance that the surrounding circumstances reasonably impose.
Consequently, when the danger is great, a high degree of care is required,
and the failure to observe such degree of care amounts to want of ordinary
care.10
The essential linkage between the negligence or fault, on one hand, and
the injury or damage, on the other hand, must be credibly and sufficiently
established. An injury or damage is proximately caused by an act or a
failure to act whenever it appears from the evidence that the act or
omission played a substantial part in bringing about or actually causing the
injury or damage; and that the injury or damage was either a direct result
or a reasonably probable consequence of the act or omission. 11

I cannot accept the Majoritys holding.

According to the petitioners, the following acts of Hao proved that they
were not negligent, namely: (a) it was at Haos instance that Bladimir was
brought to the Caybiga Community Hospital; (b) before leaving for
Hongkong, Hao instructed Ignacio Silangga, another employee, to attend to
the needs of Bladimir who had been admitted in the hospital; and (c) Hao
advised Bladimir to take a rest for three days.

Let me elucidate.

The Majoritys favoring the petitioners disregards the records, which

convincingly demonstrated and preponderantly established that Hao had
failed to exercise the degree of care and vigilance required under the
circumstances. Besides, the aforestated acts of Hao, objectively
considered, did not warrant the petitioners absolution from liability.

2.a.
Petitioners
violated
the
the Labor Code and its implementing rules

The Majority hold that all that Article 161 of the Labor Code, 12 upon which,
among others, the CA anchored its decision against the petitioners,
required of the petitioners as the employers of the ill Bladimir was to
render "necessary assistance" to ensure "adequate and immediate medical
attendance"; that Haos advice to Bladimir to take a 3-day rest, which he

requirements

of

It is good to start by unhesitatingly indicating that the petitioners as

employers committed violations of the minimum standards of care that the
law erected for the benefit of Bladimir and his co-workers.

35

The implementing rules of the Labor Code required OBCC to provide

medical and dental services and facilities to its employees. Specifically,
under Section 4(a), Rule 1 of the Implementing Rules of Book IV, OBCC had
the legal obligation due to the number of its workers being at least 27 in
number (that is, seven regular employees and 20 contractual ones,
according to Hao) to employ at least a graduate first-aider, who might be
one of the workers in the workplace; such graduate first-aider must be
afforded immediate access to the first-aid medicines, equipment, and
facilities.14 The term first-aider refers to a person who has been trained and
duly certified as qualified to administer first aid by the Philippine National
Red Cross (PNRC) or any other organization accredited by the PNRC. 15 The
term first-aid treatment means adequate, immediate, and necessary
medical attention or remedy given in case of injury or sudden illness
suffered by a worker during employment, irrespective of whether or not
such an injury or illness is work-connected, before more extensive medical
or dental treatment can be secured; it does not include continued
treatment or follow-up treatment for any injury or illness. 16

Chicken pox is a self-limiting disease that heals by itself when properly

taken care of by giving the patient sufficient time to rest and administering
symptomatic medications. Dr. Hermes Frias enlightened the trial court
thereon:

However, Hao admitted that OBCC did not have a clinic in the workplace,
or a nurse or other competent person who might assist an employee in an
emergency, or that OBCC had any agreement with a nearby hospital to
attend to a sick employee.17 The admitted failure to provide to the
employees, in general, and to Bladimir, in particular, any of the several
free emergency medical and dental services and facilities the Labor Code
and the implementing rules and regulations of the Department of Labor
and Employment required removed the foundation for absolving the
petitioners from liability.

ATTY. SANTILLAN

COURT
Q: He contracted chicken pox?
A: Yes, your honor, which is a self limiting disease.
Q: What do you mean by that?
A: Meaning to say, your Honor, if it is properly taken care of, it will not
reach to the point of seriously affecting the patient and there is a certain
period wherein the chicken pox will heal.20

Q: That is you said if taken care of at the initial?

A: Yes, sir.21
xxx
COURT

Chicken pox, or varicella, is a highly contagious disease of childhood,

caused by a large DNA virus and characterized by a well-defined
incubation period, and a vesicular rash that typically occurs in successive
crops and most marked on the trunk. In healthy children, the disease is
usually mild with clinical symptoms limited to the skin; but in
immunosuppressed children and adults, life-threatening illness caused by
deep visceral involvement is not uncommon. 18 Among the known
complications of varicella are: (a) secondary bacterial infection; (b)
varicella pneumonia; (c) dissemination to other viscera; (d) central nervous
system complications; (e) coagulation complications; and (f) rare
complications such as varicella infection of the cornea, edema, Reyes
syndrome, or myocarditis.19

Q: Will you clarify. You said that the disease is self limiting disease.
A: Yes your honor.
Q: So more or less, even without any medicine or without any medical
attendance if it is self limiting disease, it will heal by itself, Isnt it?
A: Yes, your Honor, if you would let me clarify on that thing, your Honor.
Chicken pox has no medicine, it is being treated symptomatically. What I
mean that it has no medicine. There are medicines that are being tested
that claim to have anti-viral activities but it cannot be positively claimed
that there is a medicine solely for chicken pox. So chicken pox, you, Honor,
is being treated symptomatically. If the patient having chicken pox will

36

have fever, he will be given anti-fever medicine and if the patient have
pneumonia due to chicken pox, that is when the appropriate antibiotics is
given.

he was rushed to the community hospital after collapsing in the

workplace). Also, Bladimir was not allowed to have bed rest, considering
that Hao instead required him to continue on the job despite his affliction,
denying the latters request to be allowed to rest in his parents home in
Capas, Tarlac, all because Hao was due to leave for Hongkong for the Holy
Week break and had no one else to remain in the premises in his absence.
Haos utter lack of concern and solicitude for the welfare of Bladimir not
only contravened the letter and spirit of the Labor Code but also
manifested a callous disregard of Bladimirs weakened condition.

Q: If it is self limiting, doctor, can you not say you dont even have to
confine him in the hospital?
A: Yes, your honor, but the patient should be confined in bed. 22
Based on the foregoing testimony of Dr. Frias, it is imperative that the
chicken pox-afflicted patient should be confined in bed to rest during the
initial stages of the disease; otherwise, the complications of chicken pox,
which are deadly, may set in.

It is not to be lost sight of, too, that, even assuming that Hao really told
Bladimir to take a rest in the company barracks upon his affliction with
chicken pox on April 9, 1995, the petitioners should still answer for the
wrongful death because the barracks provided to Bladimir and others (free
of charge, the Majority point out) were unsuitable for any employee
afflicted with chicken pox to have the requisite complete rest. The barracks
consisted of a small, cramped, and guardhouse-like structure constructed
of wood and plywood that even raised the chances for chicken pox to
spread. Under the circumstances, the petitioners neglect of the welfare of
Bladimir became all the more pronounced.

Dr. Frias explained the probability of the complications of chicken pox

affecting the patient, viz:
A: Among the complications of chicken pox especially in adults that
contacted it is pneumonia, then another complication is the brain,
encephalitis, those are the complications, sir.

2.b.

Q: In your medical opinion, doctor, when can these complications set in?

Bladimir succumbed to complications of chicken pox

A: There is no specific time on when these complications set in; but if the
patient is properly taken care of during his illness having chicken pox,
these complications usually do not set in. The book states that
complications of pneumonia is around, if I am not mistaken, 20% to 30% of
patients contacting chicken pox.

after petitioners refused to let him have complete rest

There are two sides of whether or not Bladimir was afforded the sufficient
time to rest. The first is Haos claim that Bladimir took a three-day rest,
more particularly, on April 9, 10 and 11, 1995. The second is the
respondents insistence that Hao still required Bladimir to remain on the
job from April 9 to April 12, 1995 despite Bladimirs several requests to be
allowed to go to his parents home in Capas, Tarlac to have the much
needed rest, because Hao was then set to travel to Hongkong during the
Holy Week break and desired Bladimir to man the premises in his absence.

Q: In your medical opinion also, doctor, if the patient who has chicken pox
do(es) not rest and continue(s) working and without medication, would
your answer still be the same as to the time when these complications will
set in?
A: Without proper rest and medication, your Honor, the chances of
complication setting in is much higher than in a patient who is fully rested
and receiving symptomatic medications.23

The Majority adopts the first, despite Hao supporting his claim with only his
mere say-so, but I incline towards the respondents version, because of the
objective confirmation of the version by two witnesses, who coincided in
their declarations that Bladimir was on the job on April 11, 1995 and April
12, 1995, contrary to Haos claim.

With the records showing that OBCC did not have the graduate first aider
or clinic in the workplace, Bladimir received no first aid treatment from
April 9, 1995 (when he contracted chicken pox) until April 12, 1995 (when

37

The first objective witness was Ariel Taruc, who was presented by the
respondents. Taruc testified that he saw Bladimir working, cleaning the
company premises and vehicles, and manning the gate on April 11, 1995.
Taruc stated, too, that Bladimir, already looking weak and full of rashes in
his body, wanted very much to go home to Capas, Tarlac to rest during the
Holy Week break but his manager (Hao) did not give him permission to do
so. I excerpt Tarucs relevant testimony, to wit:

Q: What was Bladimir doing there at the guard house when you arrived?
A: He was assigned in that guard house, sir.
Q: Can you tell this Honorable Court what you and Bladimir talked about
during that meeting at 9:00 o'clock on April 11, 1995?
A: I also invited Bladimir to go home on Holy Thursday, however, he
informed me that he could not go home because he was not allowed by his
manager to go home as his manager was going somewhere, sir.

Q: Now on April 11, 1995, what time did you and Mr. Cubacub talk?
A: 9:00 o'clock in the morning, sir.

Q: Now, can you tell this Honorable Court also if you know what was the
physical condition of Bladimir at the time you are talking to him?

Q: Can you tell this Honorable Court why you went there on April 11, 1995?
A: I wanted to invite him to go home because that was a Holy Week, sir.

A: At that time, sir, his face was full of chicken pox, sir, and he looks weak,
sir.

COURT
Q: Now, was that the only subject of conversation between you and
Bladimir Cubacub at the time you visited him?

Holy Tuesday, you did not work on that day?

WITNESS
We did not have work on that day ma'am.

A: I was inviting him to go home that week, however he did not want to go
home, in fact he showed his chicken pox in his stomach and he informed
me that he will be going home when I come back for work, sir.

COURT

Q: Will you tell the Court, you describe what those bulutong looks like?

Alright, proceed.

A: "Butil-butil" with pus and his face, both arms and his stomach were full
of chicken pox, and they look like boil (pigsa), mam. 24

ATTY. S. SANTILLAN:

The second objective witness was Ignacio Silangga, an employee of OBCC

whom the petitioners presented on their side. Like Taruc, Silangga saw
Bladimir working on April 11, 1995 by cleaning the company premises and
vehicles, and opening and closing the gate of the premises, as the
following except of his testimony bears out:

Q: In what particular place you met Bladimir Cubacub on April 11, 1995 at
9:00 o'clock in the morning?
WITNESS

Q: On April 11?

A: At the guard house, sir.

A: On April 11, I saw him, sir.

Q: Guard house of what company if you know or what place?

Q: Also working in the premises?

A: Ocean Builders, sir.

38

A: He was cleaning the vehicle, sir.

Q: And, did Bladimir Cubacub tell you the reason why he wants to be
brought to Tarlac?

Q: So aside from cleaning the premises, opening, closing the gate, you also
see him cleaning the vehicles of the corporation, is that what you mean?

A: He told me that he wants to take a rest, sir.

A: Yes, sir, that is his duty or job.

Q: And, did he also tell you the reason why he wanted to take a rest?

COURT

A: He did not tell me the reason, sir. He just told me that he wants to take a
rest, so, his brothers and sisters could take care of him, sir.

Q: Cleaning the vehicle is his job?

Q: Did he not also tell you the reason why he wants his brothers and sisters
to take care of him?

A: Yes, maam.25

A: What I know, he was suffering from chicken pox, sir. 26

In addition, Silangga attested that Bladimir continued on the job on April

12, 1995, instead of resting. In fact, Silangga recalled Bladimir requesting
to bring him home to Tarlac ("bring me to Tarlac") because he wanted his
own brothers and sisters to take care of him and to rest. The relevant
excerpt of Silanggas testimony follows:

With the aforequoted testimonies definitely confirming that Bladimir

worked until April 12, 1995 (at least) despite his greatly weakened
condition, I wonder how and why the RTC still held that Bladimir was solely
responsible for the fatal consequence of his affliction, and why the Majority
agrees with the RTC and completely absolves the petitioners from
responsibility and liability.

Q: Can you recall to us what date was that when you last saw him before
you saw him at the hospital?

2.c.

A: On April 12, 1995, sir, I came from Manila because I secured the Plate
Number of Mr. Dennis Hao, sir.

Bladimir
from a co-employee

Q: And, from Manila, where did you go?

contracted

chicken

pox

Citing the lack of any finding to that effect in the decisions of both lower
courts, the Majority downplays the cause of Bladimirs chicken pox and
ignores that Bladimir contracted the chicken pox from a co-worker.

A: Upon entering the gate of your company, Bladimir was there and he was
the one who opened the gate for me, sir.
Q: And, when Bladimir opened the gate for you on April 12, 1995, was he in
his ordinary self or usual ordinary self?

I cannot go along with the Majority. It will be odd if the Court refuses to
rectify the omission of both lower courts in missing out on such an
important detail as the causation of the chicken pox and ignores the
evidence to that effect. The silence of the lower courts ought not to impede
the rectification, for ours is the foremost duty, as the ultimate dispenser of
justice and fairness, to make judicial decisions speak the truth.

A: Yes, sir.
Q: Alright, so, after opening the gate of Ocean Builders, do you remember
what happened next?

Thus, I excerpt from Haos testimony the portion that incontrovertibly

shows that he well knew that Bladimir had contracted his chicken pox from

A: Bladimir Cubacub calls me "Kuya", sir, and he told me, "Kuya, can you
bring me to Tarlac", sir.

39

a co-worker, in order to show how Bladimir contracted the chicken pox

from a co-worker, viz:

doing more after Bladimir had been rushed to the community hospital by
Silangga.

Q: Personally, have you experience from chicken pox (sic), do you know
whether it is something serious or what kind disease?

Too late, because by the time of rushing him to the community hospital
Bladimir had already collapsed due to the irreversible effects of the deadly
complications of the 3-days old affliction.

A: Actually, before Bladimir Cubacub was afflicted with chicken pox from
one of his co-employee who is also residing in the barracks who was
afflicted with chicken pox, that is why I saw that chicken pox could ill in
about three (3) days, sir.27

2.e.
Conclusion

Clearly, it was Hao who himself confirmed that Bladimir had contracted his
chicken pox from a co-worker.

Unlike the Majority, I find a direct link between the petitioners acts and
omissions and Bladimirs death. The chain of the events from the time
when Bladimir was exposed to the chicken pox afflicting his co-worker due
to their staying together in the cramped space of the workers barracks, to
the time when Hao directed Silangga to rush the collapsed Bladimir to the
community hospital, and until Bladimir succumbed in QCGH indicated a
natural and continuous sequence, unbroken by any efficient intervening
cause, demonstrating how their gross neglect of their employees plight
led to or caused the wrongful death.

2.d.
Haos
acts
after
and
was
rushed
were superficial, too little, and too late

to

Bladimir
the

collapsed
hospital

It is true that Hao directed Silangga to bring Bladimir to the community

hospital after he collapsed in the workplace, giving P1,000.00 for Bladimirs
medical bill. But Haos solicitude was superficial (if not feigned), too little,
and too late.

Contrary to the Majoritys conclusion, Hao willfully disregarded Bladimirs

deteriorating condition and prevented him from taking time off from his job
to have the much needed complete rest. Haos attitude enabled the
complications of chicken pox, like pneumonia, to set in to complicate
Bladimirs condition. Hao did not need to have a medical background to
realize Bladimirs worsening condition and the concomitant perils, for such
condition was not concealed due to Bladimirs body notoriously bearing the
signs of his affliction and general debility. By the time Hao acted and had
Bladimir brought to the community hospital, the complications of the
disease were already irreversible.

Superficial (if not feigned), for, although Bladimir, as a stay-in employee of

OBCC under Haos supervision, was Haos responsibility, Hao had not
earlier done anything to prevent Bladimir from contracting chicken pox by
isolating Bladimir from contact with the afflicted co-worker. Instead,
Bladimir and the afflicted co-worker were forced to stay together in their
crowded barracks. In addition, Hao showed no further interest in seeing to
the condition of Bladimir and in ascertaining whether the community
hospital to where Bladimir had been rushed upon Haos directive had the
adequate facilities and medical personnel to attend to Bladimir. Obviously,
the community hospital was not adequate, because Bladimirs condition
deteriorated until he fell into coma on April 13, 1995, the day following his
admission.

Undoubtedly, the petitioners did not use that reasonable care and caution
that an ordinarily prudent person would have used in the same situation.
3.
Dr.
Frias
death
more reliable on the cause of death

Too little, because P1,000.00 was a mere pittance when compared with
OBCCs undeserved savings from not complying with its legally mandated
obligation to provide first aid treatment to its employees, and from not

40

certificate

was

The Majority do not consider the later death certificate issued by Dr. Frias
(which included chicken pox among the causes of death) more reliable
than the death certificate issued on April 17, 1995 by the QCGH (which did
not include chicken pox among the causes of death), mainly because Dr.
Frias could not be considered as Bladimirs attending physician, he having
merely ordered Bladimirs transfer to the QCGH after seeing him at the
Caybiga Community Hospital; and because the QCGH death certificate was
a public document whose entries are presumed correct unless their
inaccuracy is first shown by positive evidence.

City to Tarlac. Upon seeing the incompleteness of the QCGH death

certificate on the causes of death, however, Dr. Frias felt compelled to
execute another death certificate, as the following excerpt of his testimony
reveals:
Q: The Court would like to be clarified, Dr. Frias. Who is authorized to issue
a death certificate based on the rules and regulations of the Department of
Health?
A: Attending physicians, your Honor, and any doctor who saw the patient.

I disagree with the Majority.

COURT

Although, concededly, any competent health professional can confirm that

death has occurred, only a physician who attended the patient during his
last illness can execute a death certificate. Anent the task, the physician
provides an opinion on the cause of death and certifies to such cause of
death, not to the fact of death. The physician is not required to confirm
that life is extinct; or to view the body of the deceased; or to report the
fact that death has occurred. The death certificate is not a medical
document, but a civil one intended to serve various legal purposes.

Q: Could you reconcile why there are two (2) death certificates in this case,
one issued by the hospital where the patient died and one which you
issued?
A: They can be reconciled your Honor...
Q: No, I'm not asking for reconciliation. I'm just asking why there are two
death certificates?

Was Dr. Frias qualified to execute the second death certificate?

A: Yes, it was given to him so that the patient can be transported while I
made the other one to show how seriously ill the patient was at the time of
his death, anyway I initially saw the patient and I was with him all the way
up to the time he was transferred to the Quezon City General Hospital,
your Honor.

I answer in the affirmative.

I deem to be uncontroverted that Dr. Frias medically attended to Bladimir
during his last illness, considering that Dr. Frias was the physician who
coordinated Bladimirs transfer to QCGH from the Caybiga Community
Hospital based on his professional assessment of the true medical
condition of Bladimir and of the urgent need for the transfer to another
medical institution with better facilities.

Q: Did I hear you correctly when you said that you issued the certificate
after you saw the death certificate issued by the Quezon City General
Hospital?

In contrast, the physician who executed on April 17, 1995 the death
certificate for Bladimir in QCGH did not attend to Bladimir during his last
illness. This fact is unquestionably borne out in the death certificate itself,
in which the physician ticked the box denominated as Question No. 20 in
the form for the death certificate, thereby stating that he had not attended
to the deceased.28

A: Yes, your Honor.

Q: The Court is asking why is there a need for another death certificate
when in fact you said there was already a death certificate that was
already issued if it is for transporting the corpse?
A: I made one, your Honor. The answer is I made one so to show the real
cause of death of the patient. I think in my opinion, the death certificate of

Moreover, Dr. Frias testified that the QCGH death certificate was prepared
principally to enable the transport of the remains of Bladimir from Quezon

41

the Quezon City General Hospital is inadequate to show the real condition
of the patient.29

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:

Based on the foregoing, therefore, that Dr. Frias had the basic competence
to execute the second death certificate, and that such death certificate
was the more reliable on the causes of Bladimirs death should be beyond
debate.
ACCORDINGLY, I vote to deny the petition for review on certiorari, and to
affirm the decision rendered on June 22, 2001 by the Court of Appeals.
LUCAS
Associate Justice

P.

BERSAMIN

CONCEPT OF QUASI-DELICT: HISTORICAL

BACKGROUND
Republic of the Philippines
SUPREME COURT
Manila

... 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.

EN BANC
G.R. No. L-48006

July 8, 1942

FAUSTO BARREDO, petitioner,

vs.
SEVERINO GARCIA and TIMOTEA ALMARIO, respondents.
Celedonio
P.
Gloria
and
Antonio
Jose G. Advincula for respondents.

Barredo

for

petitioner.

The main theory of the defense is that the liability of Fausto

governed by the Revised Penal Code; hence, his liability is only
and as there has been no civil action against Pedro Fontanilla,
criminally liable, Barredo cannot be held responsible in the
petitioner's brief states on page 10:

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.

Barredo is
subsidiary,
the person
case. The

... 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

42

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 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 quasicontracts, and from acts and omissions which are unlawful or in
which any kind of fault or negligence intervenes.

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.

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.

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.

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.

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

Owners or directors of an establishment or business are equally

liable for any damages caused by their employees while engaged

43

in the branch of the service in which employed, or on occasion of

the performance of their duties.

be insolvent, said insane, imbecile, or minor shall respond with

their own property, excepting property exempt from execution, in
accordance with the civil law.

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.

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.

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 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.

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.

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.

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. 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.

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.

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

Should there be no person having such insane, imbecile or minor

under his authority, legal guardianship, or control, or if such person

44

against or intimidation of persons unless committed by the

innkeeper's employees.

The individuality of cuasi-delito or culpa extra-contractual looms clear and

unmistakable. This legal institution is of ancient lineage, one of its early
ancestors being the Lex Aquilia in the Roman Law. In fact, in Spanish legal
terminology, this responsibility is often referred to as culpa aquiliana. The
Partidas also contributed to the genealogy of the present fault or
negligence under the Civil Code; for instance, Law 6, Title 15, of Partida 7,
says: "Tenudo es de fazer emienda, porque, como quier que el non fizo a
sabiendas en dao al otro, pero acaescio por su culpa."

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

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.

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.

Some of the differences between crimes under the Penal Code and
the culpa aquiliana or cuasi-delito under the Civil Code are:

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."

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

It will thus be seen that while the terms of articles 1902 of the Civil Code
seem to be broad enough to cover the driver's negligence in the instant
case, nevertheless article 1093 limits cuasi-delitos to acts or omissions
"not punishable by law." But inasmuch as article 365 of the Revised Penal
Code punishes not only reckless but even simple imprudence or
negligence, the fault or negligence under article 1902 of the Civil Code has
apparently been crowded out. It is this overlapping that makes the
"confusion worse confounded." However, a closer study shows that such a
concurrence of scope in regard to negligent acts does not destroy the
distinction between the civil liability arising from a crime and the
responsibility for cuasi-delitos or culpa extra-contractual. The same
negligent act causing damages may produce civil liability arising from a
crime under article 100 of the Revised Penal Code, or create an action
for cuasi-delito or culpa extra-contractual under articles 1902-1910 of the
Civil Code.

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.)

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

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.

45

Dorado Montero in his essay on "Responsibilidad" in the "Enciclopedia

Juridica Espaola" (Vol. XXVII, p. 414) says:

eventual coincidencia de los efectos, no borra la diversidad

originaria de las acciones civiles para pedir indemnizacion.

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."

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.

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):

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.

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

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

46

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.

responsibilities arising from a crime, separately from the regime

under common law, of culpa which is known as aquiliana, in
accordance with legislative precedent of the Corpus Juris. It would
be unwarranted to make a detailed comparison between the
former provisions and that regarding the obligation to indemnify on
account of civil culpa; but it is pertinent and necessary to point out
to one of such differences.
Articles 20 and 21 of the Penal Code, after distriburing in their own
way the civil responsibilities among those who, for different
reasons, are guilty of felony or misdemeanor, make such civil
responsibilities applicable to enterprises and establishments for
which the guilty parties render service, but with subsidiary
character, that is to say, according to the wording of the Penal
Code, in default of those who are criminally responsible. In this
regard, the Civil Code does not coincide because article 1903 says:
"The obligation imposed by the next preceding article is
demandable, not only for personal acts and omissions, but also for
those of persons for whom another is responsible." Among the
persons enumerated are the subordinates and employees of
establishments or enterprises, either for acts during their service
or on the occasion of their functions. It is for this reason that it
happens, and it is so observed in judicial decisions, that the
companies or enterprises, after taking part in the criminal cases
because of their subsidiary civil responsibility by reason of the
crime, are sued and sentenced directly and separately with regard
to theobligation, before the civil courts.

As things are, apropos of the reality pure and simple of the facts, it
seems less tenable that there should beres judicata with regard to
the civil obligation for damages on account of the losses caused by
the collision of the trains. The title upon which the action for
reparation is based cannot be confused with the civil
responsibilities born of a crime, because there exists in the latter,
whatever each nature, a culpasurrounded with aggravating aspects
which give rise to penal measures that are more or less severe.
The injury caused by a felony or misdemeanor upon civil rights
requires restitutions, reparations, or indemnifications which, like
the penalty itself, affect public order; for this reason, they are
ordinarily entrusted to the office of the prosecuting attorney; and it
is clear that if by this means the losses and damages are repaired,
the injured party no longer desires to seek another relief; but this
coincidence of effects does not eliminate the peculiar nature of
civil actions to ask for indemnity.

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-

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

47

existence of the felony and the non-existence of the responsibility

arising from the crime, which was the sole subject matter upon
which the Tribunal del Juradohad jurisdiction, there is greater
reason for the civil obligation ex lege, and it becomes clearer that
the action for its enforcement remain intact and is not res judicata.

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.

Laurent, a jurist who has written a monumental work on the French Civil
Code, on which the Spanish Civil Code is largely based and whose
provisions on cuasi-delito or culpa extra-contractual are similar to those of
the Spanish Civil Code, says, referring to article 1384 of the French Civil
Code which corresponds to article 1903, Spanish Civil Code:

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.

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

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

48

precisamente "por los actos de aquellas personas de quienes se

deba responder."

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.

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."

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.)

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

49

It will be noted, as to the case just cited:

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
andfraudulently, 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:

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.

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:

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.

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.

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.

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

(See also Sentence of February 19, 1902, which is similar to the one above
quoted.)

50

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:

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.

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.)

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 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.

"The father, and on his death or incapacity, the mother, is

liable for the damages caused by the minors who live with
them.
xxx

Let us now examine the cases previously decided by this Court.

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.

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

xxx

51

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."

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.

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.

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.

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

52

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:

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:

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.

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 will be noticed that the defendant in the above case could have been
prosecuted in a criminal case because his negligence causing the death of
the child was punishable by the Penal Code. Here is therefore a clear
instance of the same act of negligence being a proper subject-matter
either of a criminal action with its consequent civil liability arising from a
crime or of an entirely separate and independent civil action for fault or
negligence under article 1902 of the Civil Code. Thus, in this jurisdiction,
the separate individually of a cuasi-delito or culpa aquiliana under the Civil
Code has been fully and clearly recognized, even with regard to a negligent

53

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.

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.

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:

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:

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 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 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."

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

54

servant. (Bahia vs.Litonjua and Leynes [1915], 30 Phil., 624;

Cangco vs. Manila Railroad Co. [1918], 38 Phil., 768.)

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.

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.

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, 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:

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.

With this preliminary point out of the way, there is no escaping the
conclusion that the provisions of the Penal Code govern. The Penal

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

55

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:

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.

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.

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.

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.

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.

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

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

56

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.

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.

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.

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.

SCOPE OF QUASI-DELICT
INTENTIONAL ACTS
Republic of the Philippines
SUPREME COURT
Manila
EN BANC

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

G.R. No. L-12191

57

October 14, 1918

JOSE CANGCO, plaintiff-appellant,

vs.
MANILA RAILROAD CO., defendant-appellee.

The explanation of the presence of a sack of melons on the platform where the
plaintiff alighted is found in the fact that it was the customary season for harvesting
these melons and a large lot had been brought to the station for the shipment to the
market. They were contained in numerous sacks which has been piled on the
platform in a row one upon another. The testimony shows that this row of sacks was
so placed of melons and the edge of platform; and it is clear that the fall of the plaintiff
was due to the fact that his foot alighted upon one of these melons at the moment he
stepped upon the platform. His statement that he failed to see these objects in the
darkness is readily to be credited.

Ramon Sotelo for appellant.

Kincaid & Hartigan for appellee.

FISHER, J.:

The plaintiff was drawn from under the car in an unconscious condition, and it
appeared that the injuries which he had received were very serious. He was therefore
brought at once to a certain hospital in the city of Manila where an examination was
made and his arm was amputated. The result of this operation was unsatisfactory,
and the plaintiff was then carried to another hospital where a second operation was
performed and the member was again amputated higher up near the shoulder. It
appears in evidence that the plaintiff expended the sum of P790.25 in the form of
medical and surgical fees and for other expenses in connection with the process of
his curation.

At the time of the occurrence which gave rise to this litigation the plaintiff, Jose
Cangco, was in the employment of Manila Railroad Company in the capacity of clerk,
with a monthly wage of P25. He lived in the pueblo of San Mateo, in the province of
Rizal, which is located upon the line of the defendant railroad company; and in
coming daily by train to the company's office in the city of Manila where he worked, he
used a pass, supplied by the company, which entitled him to ride upon the company's
trains free of charge. Upon the occasion in question, January 20, 1915, the plaintiff
arose from his seat in the second class-car where he was riding and, making, his exit
through the door, took his position upon the steps of the coach, seizing the upright
guardrail with his right hand for support.

Upon August 31, 1915, he instituted this proceeding in the Court of First Instance of
the city of Manila to recover damages of the defendant company, founding his action
upon the negligence of the servants and employees of the defendant in placing the
sacks of melons upon the platform and leaving them so placed as to be a menace to
the security of passenger alighting from the company's trains. At the hearing in the
Court of First Instance, his Honor, the trial judge, found the facts substantially as
above stated, and drew therefrom his conclusion to the effect that, although
negligence was attributable to the defendant by reason of the fact that the sacks of
melons were so placed as to obstruct passengers passing to and from the cars,
nevertheless, the plaintiff himself had failed to use due caution in alighting from the
coach and was therefore precluded form recovering. Judgment was accordingly
entered in favor of the defendant company, and the plaintiff appealed.

On the side of the train where passengers alight at the San Mateo station there is a
cement platform which begins to rise with a moderate gradient some distance away
from the company's office and extends along in front of said office for a distance
sufficient to cover the length of several coaches. As the train slowed down another
passenger, named Emilio Zuiga, also an employee of the railroad company, got off
the same car, alighting safely at the point where the platform begins to rise from the
level of the ground. When the train had proceeded a little farther the plaintiff Jose
Cangco stepped off also, but one or both of his feet came in contact with a sack of
watermelons with the result that his feet slipped from under him and he fell violently
on the platform. His body at once rolled from the platform and was drawn under the
moving car, where his right arm was badly crushed and lacerated. It appears that
after the plaintiff alighted from the train the car moved forward possibly six meters
before it came to a full stop.

It can not be doubted that the employees of the railroad company were guilty of
negligence in piling these sacks on the platform in the manner above stated; that their
presence caused the plaintiff to fall as he alighted from the train; and that they
therefore constituted an effective legal cause of the injuries sustained by the plaintiff.
It necessarily follows that the defendant company is liable for the damage thereby
occasioned unless recovery is barred by the plaintiff's own contributory negligence. In
resolving this problem it is necessary that each of these conceptions of liability, to-wit,
the primary responsibility of the defendant company and the contributory negligence
of the plaintiff should be separately examined.

The accident occurred between 7 and 8 o'clock on a dark night, and as the railroad
station was lighted dimly by a single light located some distance away, objects on the
platform where the accident occurred were difficult to discern especially to a person
emerging from a lighted car.

58

It is important to note that the foundation of the legal liability of the defendant is the
contract of carriage, and that the obligation to respond for the damage which plaintiff
has suffered arises, if at all, from the breach of that contract by reason of the failure of
defendant to exercise due care in its performance. That is to say, its liability is direct
and immediate, differing essentially, in legal viewpoint from that presumptive
responsibility for the negligence of its servants, imposed by article 1903 of the Civil
Code, which can be rebutted by proof of the exercise of due care in their selection
and supervision. Article 1903 of the Civil Code is not applicable to obligations arising
ex contractu, but only to extra-contractual obligations or to use the technical form
of expression, that article relates only to culpa aquiliana and not to culpa contractual.

managing such a vehicle, is himself guilty of an act of negligence which makes him
liable for all the consequences of his imprudence. The obligation to make good the
damage arises at the very instant that the unskillful servant, while acting within the
scope of his employment causes the injury. The liability of the master is personal and
direct. But, if the master has not been guilty of any negligence whatever in the
selection and direction of the servant, he is not liable for the acts of the latter,
whatever done within the scope of his employment or not, if the damage done by the
servant does not amount to a breach of the contract between the master and the
person injured.
It is not accurate to say that proof of diligence and care in the selection and control of
the servant relieves the master from liability for the latter's acts on the contrary,
that proof shows that the responsibility has never existed. As Manresa says (vol. 8, p.
68) the liability arising from extra-contractual culpa is always based upon a voluntary
act or omission which, without willful intent, but by mere negligence or inattention, has
caused damage to another. A master who exercises all possible care in the selection
of his servant, taking into consideration the qualifications they should possess for the
discharge of the duties which it is his purpose to confide to them, and directs them
with equal diligence, thereby performs his duty to third persons to whom he is bound
by no contractual ties, and he incurs no liability whatever if, by reason of the
negligence of his servants, even within the scope of their employment, such third
person suffer damage. True it is that under article 1903 of the Civil Code the law
creates a presumption that he has been negligent in the selection or direction of his
servant, but the presumption is rebuttable and yield to proof of due care and diligence
in this respect.

Manresa (vol. 8, p. 67) in his commentaries upon articles 1103 and 1104 of the Civil
Code, clearly points out this distinction, which was also recognized by this Court in its
decision in the case of Rakes vs. Atlantic, Gulf and Pacific Co. (7 Phil. rep., 359). In
commenting upon article 1093 Manresa clearly points out the difference between
"culpa, substantive and independent, which of itself constitutes the source of an
obligation between persons not formerly connected by any legal tie"
and culpa considered as an accident in the performance of an obligation already
existing . . . ."
In the Rakes case (supra) the decision of this court was made to rest squarely upon
the proposition that article 1903 of the Civil Code is not applicable to acts of
negligence which constitute the breach of a contract.
Upon this point the Court said:

The supreme court of Porto Rico, in interpreting identical provisions, as found in the
Porto Rico Code, has held that these articles are applicable to cases of extracontractual culpa exclusively. (Carmona vs. Cuesta, 20 Porto Rico Reports, 215.)

The acts to which these articles [1902 and 1903 of the Civil Code] are
applicable are understood to be those not growing out of pre-existing duties
of the parties to one another. But where relations already formed give rise to
duties, whether springing from contract or quasi-contract, then breaches of
those duties are subject to article 1101, 1103, and 1104 of the same code.
(Rakes vs. Atlantic, Gulf and Pacific Co., 7 Phil. Rep., 359 at 365.)

This distinction was again made patent by this Court in its decision in the case of
Bahia vs. Litonjua and Leynes, (30 Phil. rep., 624), which was an action brought upon
the theory of the extra-contractual liability of the defendant to respond for the damage
caused by the carelessness of his employee while acting within the scope of his
employment. The Court, after citing the last paragraph of article 1903 of the Civil
Code, said:

This distinction is of the utmost importance. The liability, which, under the Spanish
law, is, in certain cases imposed upon employers with respect to damages
occasioned by the negligence of their employees to persons to whom they are not
bound by contract, is not based, as in the English Common Law, upon the principle
of respondeat superior if it were, the master would be liable in every case and
unconditionally but upon the principle announced in article 1902 of the Civil Code,
which imposes upon all persons who by their fault or negligence, do injury to another,
the obligation of making good the damage caused. One who places a powerful
automobile in the hands of a servant whom he knows to be ignorant of the method of

From this article two things are apparent: (1) That when an injury is caused
by the negligence of a servant or employee there instantly arises a
presumption of law that there was negligence on the part of the master or
employer either in selection of the servant or employee, or in supervision
over him after the selection, or both; and (2) that that presumption is juris

59

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.

contractual relations the vinculum exists independently of the breach of the voluntary
duty assumed by the parties when entering into the contractual relation.
With respect to extra-contractual obligation arising from negligence, whether of act or
omission, it is competent for the legislature to elect and our Legislature has so
elected whom such an obligation is imposed is morally culpable, or, on the
contrary, for reasons of public policy, to extend that liability, without regard to the lack
of moral culpability, so as to include responsibility for the negligence of those person
who acts or mission are imputable, by a legal fiction, to others who are in a position to
exercise an absolute or limited control over them. The legislature which adopted our
Civil Code has elected to limit extra-contractual liability with certain well-defined
exceptions to cases in which moral culpability can be directly imputed to the
persons to be charged. This moral responsibility may consist in having failed to
exercise due care in the selection and control of one's agents or servants, or in the
control of persons who, by reason of their status, occupy a position of dependency
with respect to the person made liable for their conduct.

This theory bases the responsibility of the master ultimately on

his own negligence and not on that of his servant. This is the notable
peculiarity of the Spanish law of negligence. It is, of course, in striking
contrast to the American doctrine that, in relations with strangers, the
negligence of the servant in conclusively the negligence of the master.
The opinion there expressed by this Court, to the effect that in case of extracontractual culpa based upon negligence, it is necessary that there shall have been
some fault attributable to the defendant personally, and that the last paragraph of
article 1903 merely establishes a rebuttable presumption, is in complete accord with
the authoritative opinion of Manresa, who says (vol. 12, p. 611) that the liability
created by article 1903 is imposed by reason of the breach of the duties inherent in
the special relations of authority or superiority existing between the person called
upon to repair the damage and the one who, by his act or omission, was the cause of
it.

The position of a natural or juridical person who has undertaken by contract to render
service to another, is wholly different from that to which article 1903 relates. When the
sources of the obligation upon which plaintiff's cause of action depends is a negligent
act or omission, the burden of proof rests upon plaintiff to prove the negligence if
he does not his action fails. But when the facts averred show a contractual
undertaking by defendant for the benefit of plaintiff, and it is alleged that plaintiff has
failed or refused to perform the contract, it is not necessary for plaintiff to specify in
his pleadings whether the breach of the contract is due to willful fault or to negligence
on the part of the defendant, or of his servants or agents. Proof of the contract and of
its nonperformance is sufficientprima facie to warrant a recovery.

On the other hand, the liability of masters and employers for the negligent acts or
omissions of their servants or agents, when such acts or omissions cause damages
which amount to the breach of a contact, is not based upon a mere presumption of
the master's negligence in their selection or control, and proof of exercise of the
utmost diligence and care in this regard does not relieve the master of his liability for
the breach of his contract.

As a general rule . . . it is logical that in case of extra-contractual culpa, a

suing creditor should assume the burden of proof of its existence, as the
only fact upon which his action is based; while on the contrary, in a case of
negligence which presupposes the existence of a contractual obligation, if
the creditor shows that it exists and that it has been broken, it is not
necessary for him to prove negligence. (Manresa, vol. 8, p. 71 [1907 ed., p.
76]).

Every legal obligation must of necessity be extra-contractual or contractual. Extracontractual obligation has its source in the breach or omission of those mutual duties
which civilized society imposes upon it members, or which arise from these relations,
other than contractual, of certain members of society to others, generally embraced in
the concept of status. The legal rights of each member of society constitute the
measure of the corresponding legal duties, mainly negative in character, which the
existence of those rights imposes upon all other members of society. The breach of
these general duties whether due to willful intent or to mere inattention, if productive
of injury, give rise to an obligation to indemnify the injured party. The fundamental
distinction between obligations of this character and those which arise from contract,
rests upon the fact that in cases of non-contractual obligation it is the wrongful or
negligent act or omission itself which creates the vinculum juris, whereas in

As it is not necessary for the plaintiff in an action for the breach of a contract to show
that the breach was due to the negligent conduct of defendant or of his servants,
even though such be in fact the actual cause of the breach, it is obvious that proof on
the part of defendant that the negligence or omission of his servants or agents
caused the breach of the contract would not constitute a defense to the action. If the
negligence of servants or agents could be invoked as a means of discharging the

60

liability arising from contract, the anomalous result would be that person acting
through the medium of agents or servants in the performance of their contracts, would
be in a better position than those acting in person. If one delivers a valuable watch to
watchmaker who contract to repair it, and the bailee, by a personal negligent act
causes its destruction, he is unquestionably liable. Would it be logical to free him from
his liability for the breach of his contract, which involves the duty to exercise due care
in the preservation of the watch, if he shows that it was his servant whose negligence
caused the injury? If such a theory could be accepted, juridical persons would enjoy
practically complete immunity from damages arising from the breach of their contracts
if caused by negligent acts as such juridical persons can of necessity only act through
agents or servants, and it would no doubt be true in most instances that reasonable
care had been taken in selection and direction of such servants. If one delivers
securities to a banking corporation as collateral, and they are lost by reason of the
negligence of some clerk employed by the bank, would it be just and reasonable to
permit the bank to relieve itself of liability for the breach of its contract to return the
collateral upon the payment of the debt by proving that due care had been exercised
in the selection and direction of the clerk?

In the case of Baer Senior & Co's Successors vs. Compania Maritima (6 Phil. Rep.,
215), the plaintiff sued the defendant for damages caused by the loss of a barge
belonging to plaintiff which was allowed to get adrift by the negligence of defendant's
servants in the course of the performance of a contract of towage. The court held,
citing Manresa (vol. 8, pp. 29, 69) that if the "obligation of the defendant grew out of a
contract made between it and the plaintiff . . . we do not think that the provisions of
articles 1902 and 1903 are applicable to the case."
In the case of Chapman vs. Underwood (27 Phil. Rep., 374), plaintiff sued the
defendant to recover damages for the personal injuries caused by the negligence of
defendant's chauffeur while driving defendant's automobile in which defendant was
riding at the time. The court found that the damages were caused by the negligence
of the driver of the automobile, but held that the master was not liable, although he
was present at the time, saying:
. . . unless the negligent acts of the driver are continued for a length of time
as to give the owner a reasonable opportunity to observe them and to direct
the driver to desist therefrom. . . . The act complained of must be continued
in the presence of the owner for such length of time that the owner by his
acquiescence, makes the driver's acts his own.

This distinction between culpa aquiliana, as the source of an obligation, and culpa
contractual as a mere incident to the performance of a contract has frequently been
recognized by the supreme court of Spain. (Sentencias of June 27, 1894; November
20, 1896; and December 13, 1896.) In the decisions of November 20, 1896, it
appeared that plaintiff's action arose ex contractu, but that defendant sought to avail
himself of the provisions of article 1902 of the Civil Code as a defense. The Spanish
Supreme Court rejected defendant's contention, saying:

In the case of Yamada vs. Manila Railroad Co. and Bachrach Garage & Taxicab Co.
(33 Phil. Rep., 8), it is true that the court rested its conclusion as to the liability of the
defendant upon article 1903, although the facts disclosed that the injury complaint of
by plaintiff constituted a breach of the duty to him arising out of the contract of
transportation. The express ground of the decision in this case was that article 1903,
in dealing with the liability of a master for the negligent acts of his servants "makes
the distinction between private individuals and public enterprise;" that as to the latter
the law creates a rebuttable presumption of negligence in the selection or direction of
servants; and that in the particular case the presumption of negligence had not been
overcome.

These are not cases of injury caused, without any pre-existing obligation, by
fault or negligence, such as those to which article 1902 of the Civil Code
relates, but of damages caused by the defendant's failure to carry out the
undertakings imposed by the contracts . . . .
A brief review of the earlier decision of this court involving the liability of employers for
damage done by the negligent acts of their servants will show that in no case has the
court ever decided that the negligence of the defendant's servants has been held to
constitute a defense to an action for damages for breach of contract.

It is evident, therefore that in its decision Yamada case, the court treated plaintiff's
action as though founded in tort rather than as based upon the breach of the contract
of carriage, and an examination of the pleadings and of the briefs shows that the
questions of law were in fact discussed upon this theory. Viewed from the standpoint
of the defendant the practical result must have been the same in any event. The proof
disclosed beyond doubt that the defendant's servant was grossly negligent and that
his negligence was the proximate cause of plaintiff's injury. It also affirmatively
appeared that defendant had been guilty of negligence in its failure to exercise proper
discretion in the direction of the servant. Defendant was, therefore, liable for the injury
suffered by plaintiff, whether the breach of the duty were to be regarded as

In the case of Johnson vs. David (5 Phil. Rep., 663), the court held that the owner of a
carriage was not liable for the damages caused by the negligence of his driver. In that
case the court commented on the fact that no evidence had been adduced in the trial
court that the defendant had been negligent in the employment of the driver, or that
he had any knowledge of his lack of skill or carefulness.

61

constituting culpa aquiliana or culpa contractual. As Manresa points out (vol. 8, pp. 29
and 69) whether negligence occurs an incident in the course of the performance of a
contractual undertaking or its itself the source of an extra-contractual undertaking
obligation, its essential characteristics are identical. There is always an act or
omission productive of damage due to carelessness or inattention on the part of the
defendant. Consequently, when the court holds that a defendant is liable in damages
for having failed to exercise due care, either directly, or in failing to exercise proper
care in the selection and direction of his servants, the practical result is identical in
either case. Therefore, it follows that it is not to be inferred, because the court held in
the Yamada case that defendant was liable for the damages negligently caused by its
servants to a person to whom it was bound by contract, and made reference to the
fact that the defendant was negligent in the selection and control of its servants, that
in such a case the court would have held that it would have been a good defense to
the action, if presented squarely upon the theory of the breach of the contract, for
defendant to have proved that it did in fact exercise care in the selection and control
of the servant.

negligence merely contributed to his injury, the damages should be apportioned. It is,
therefore, important to ascertain if defendant was in fact guilty of negligence.

The true explanation of such cases is to be found by directing the attention to the
relative spheres of contractual and extra-contractual obligations. The field of noncontractual obligation is much more broader than that of contractual obligations,
comprising, as it does, the whole extent of juridical human relations. These two fields,
figuratively speaking, concentric; that is to say, the mere fact that a person is bound to
another by contract does not relieve him from extra-contractual liability to such
person. When such a contractual relation exists the obligor may break the contract
under such conditions that the same act which constitutes the source of an extracontractual obligation had no contract existed between the parties.

We are of the opinion that the correct doctrine relating to this subject is that
expressed in Thompson's work on Negligence (vol. 3, sec. 3010) as follows:

It may be admitted that had plaintiff waited until the train had come to a full stop
before alighting, the particular injury suffered by him could not have occurred.
Defendant contends, and cites many authorities in support of the contention, that it is
negligence per se for a passenger to alight from a moving train. We are not disposed
to subscribe to this doctrine in its absolute form. We are of the opinion that this
proposition is too badly stated and is at variance with the experience of every-day life.
In this particular instance, that the train was barely moving when plaintiff alighted is
shown conclusively by the fact that it came to stop within six meters from the place
where he stepped from it. Thousands of person alight from trains under these
conditions every day of the year, and sustain no injury where the company has kept
its platform free from dangerous obstructions. There is no reason to believe that
plaintiff would have suffered any injury whatever in alighting as he did had it not been
for defendant's negligent failure to perform its duty to provide a safe alighting place.

The test by which to determine whether the passenger has been guilty of
negligence in attempting to alight from a moving railway train, is that of
ordinary or reasonable care. It is to be considered whether an ordinarily
prudent person, of the age, sex and condition of the passenger, would have
acted as the passenger acted under the circumstances disclosed by the
evidence. This care has been defined to be, not the care which may or
should be used by the prudent man generally, but the care which a man of
ordinary prudence would use under similar circumstances, to avoid injury."
(Thompson, Commentaries on Negligence, vol. 3, sec. 3010.)

The contract of defendant to transport plaintiff carried with it, by implication, the duty
to carry him in safety and to provide safe means of entering and leaving its trains (civil
code, article 1258). That duty, being contractual, was direct and immediate, and its
non-performance could not be excused by proof that the fault was morally imputable
to defendant's servants.

Or, it we prefer to adopt the mode of exposition used by this court in Picart vs. Smith
(37 Phil. rep., 809), we may say that the test is this; Was there anything in the
circumstances surrounding the plaintiff at the time he alighted from the train which
would have admonished a person of average prudence that to get off the train under
the conditions then existing was dangerous? If so, the plaintiff should have desisted
from alighting; and his failure so to desist was contributory negligence.1awph!l.net

The railroad company's defense involves the assumption that even granting that the
negligent conduct of its servants in placing an obstruction upon the platform was a
breach of its contractual obligation to maintain safe means of approaching and
leaving its trains, the direct and proximate cause of the injury suffered by plaintiff was
his own contributory negligence in failing to wait until the train had come to a
complete stop before alighting. Under the doctrine of comparative negligence
announced in the Rakes case (supra), if the accident was caused by plaintiff's own
negligence, no liability is imposed upon defendant's negligence and plaintiff's

As the case now before us presents itself, the only fact from which a conclusion can
be drawn to the effect that plaintiff was guilty of contributory negligence is that he
stepped off the car without being able to discern clearly the condition of the platform
and while the train was yet slowly moving. In considering the situation thus presented,
it should not be overlooked that the plaintiff was, as we find, ignorant of the fact that

62

the obstruction which was caused by the sacks of melons piled on the platform
existed; and as the defendant was bound by reason of its duty as a public carrier to
afford to its passengers facilities for safe egress from its trains, the plaintiff had a right
to assume, in the absence of some circumstance to warn him to the contrary, that the
platform was clear. The place, as we have already stated, was dark, or dimly lighted,
and this also is proof of a failure upon the part of the defendant in the performance of
a duty owing by it to the plaintiff; for if it were by any possibility concede that it had
right to pile these sacks in the path of alighting passengers, the placing of them
adequately so that their presence would be revealed.

The decision of lower court is reversed, and judgment is hereby rendered plaintiff for
the sum of P3,290.25, and for the costs of both instances. So ordered.
Arellano, C.J., Torres, Street and Avancea, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila

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

this case the following circumstances are to be noted: The company's platform was
constructed upon a level higher than that of the roadbed and the surrounding ground.
The distance from the steps of the car to the spot where the alighting passenger
would place his feet on the platform was thus reduced, thereby decreasing the risk
incident to stepping off. The nature of the platform, constructed as it was of cement
material, also assured to the passenger a stable and even surface on which to alight.
Furthermore, the plaintiff was possessed of the vigor and agility of young manhood,
and it was by no means so risky for him to get off while the train was yet moving as
the same act would have been in an aged or feeble person. In determining the
question of contributory negligence in performing such act that is to say, whether
the passenger acted prudently or recklessly the age, sex, and physical condition of
the passenger are circumstances necessarily affecting the safety of the passenger,
and should be considered. Women, it has been observed, as a general rule are less
capable than men of alighting with safety under such conditions, as the nature of their
wearing apparel obstructs the free movement of the limbs. Again, it may be noted that
the place was perfectly familiar to the plaintiff as it was his daily custom to get on and
of the train at this station. There could, therefore, be no uncertainty in his mind with
regard either to the length of the step which he was required to take or the character
of the platform where he was alighting. Our conclusion is that the conduct of the
plaintiff in undertaking to alight while the train was yet slightly under way was not
characterized by imprudence and that therefore he was not guilty of contributory
negligence.
The evidence shows that the plaintiff, at the time of the accident, was earning P25 a
month as a copyist clerk, and that the injuries he has suffered have permanently
disabled him from continuing that employment. Defendant has not shown that any
other gainful occupation is open to plaintiff. His expectancy of life, according to the
standard mortality tables, is approximately thirty-three years. We are of the opinion
that a fair compensation for the damage suffered by him for his permanent disability is
the sum of P2,500, and that he is also entitled to recover of defendant the additional
sum of P790.25 for medical attention, hospital services, and other incidental
expenditures connected with the treatment of his injuries.

SECOND DIVISION
G.R. No. L-24803 May 26, 1977
PEDRO ELCANO and PATRICIA ELCANO, in their capacity as Ascendants of
Agapito Elcano, deceased,plaintiffs-appellants,

vs.
REGINALD HILL, minor, and MARVIN HILL, as father and Natural Guardian of
said minor, defendants-appellees.
Cruz & Avecilla for appellants.
Marvin R. Hill & Associates for appellees.

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

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1. The present action is not only against but a violation of section 1,

Rule 107, which is now Rule III, of the Revised Rules of Court;

REVISED RULES OF COURT, AND THAT SECTION 3(c) OF

RULE 111, RULES OF COURT IS APPLICABLE;

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

in res-adjudicata;

II
THE ACTION IS BARRED BY A PRIOR JUDGMENT WHICH IS
NOW FINAL OR RES-ADJUDICTA;

3. The complaint had no cause of action against defendant Marvin

Hill, because he was relieved as guardian of the other defendant
through emancipation by marriage.

III

(P. 23, Record [p. 4, Record on Appeal.])

THE PRINCIPLES OF QUASI-DELICTS, ARTICLES 2176 TO 2194

OF THE CIVIL CODE, ARE INAPPLICABLE IN THE INSTANT
CASE; and

was first denied by the trial court. It was only upon motion for reconsideration of the
defendants of such denial, reiterating the above grounds that the following order was
issued:

IV

Considering the motion for reconsideration filed by the defendants

on January 14, 1965 and after thoroughly examining the arguments
therein contained, the Court finds the same to be meritorious and
well-founded.

THAT THE COMPLAINT STATES NO CAUSE OF ACTION

AGAINST DEFENDANT MARVIN HILL BECAUSE HE WAS
RELIEVED AS GUARDIAN OF THE OTHER DEFENDANT
THROUGH EMANCIPATION BY MARRIAGE. (page 4, Record.)

WHEREFORE, the Order of this Court on December 8, 1964 is

hereby reconsidered by ordering the dismissal of the above entitled
case.

It appears that for the killing of the son, Agapito, of plaintiffs-appellants, defendantappellee Reginald Hill was prosecuted criminally in Criminal Case No. 5102 of the
Court of First Instance of Quezon City. After due trial, he was acquitted on the ground
that his act was not criminal because of "lack of intent to kill, coupled with mistake."
Parenthetically, none of the parties has favored Us with a copy of the decision of
acquittal, presumably because appellants do not dispute that such indeed was the
basis stated in the court's decision. And so, when appellants filed their complaint
against appellees Reginald and his father, Atty. Marvin Hill, on account of the death of
their son, the appellees filed the motion to dismiss above-referred to.

SO ORDERED.
Quezon City, Philippines, January 29, 1965. (p. 40, Record [p. 21,
Record on Appeal.)
Hence, this appeal where plaintiffs-appellants, the spouses Elcano, are presenting for
Our resolution the following assignment of errors:

As We view the foregoing background of this case, the two decisive issues presented
for Our resolution are:

THE LOWER COURT ERRED IN DISMISSING THE CASE BY

UPHOLDING THE CLAIM OF DEFENDANTS THAT -

1. Is the present civil action for damages barred by the acquittal of Reginald in the
criminal case wherein the action for civil liability, was not reversed?

2. May Article 2180 (2nd and last paragraphs) of the Civil Code he applied against
Atty. Hill, notwithstanding the undisputed fact that at the time of the occurrence
complained of. Reginald, though a minor, living with and getting subsistenee from his
father, was already legally married?

THE PRESENT ACTION IS NOT ONLY AGAINST BUT ALSO A

VIOLATION OF SECTION 1, RULE 107, NOW RULE 111, OF THE

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The first issue presents no more problem than the need for a reiteration and further
clarification of the dual character, criminal and civil, of fault or negligence as a source
of obligation which was firmly established in this jurisdiction in Barredo vs. Garcia, 73
Phil. 607. In that case, this Court postulated, on the basis of a scholarly dissertation
by Justice Bocobo on the nature of culpa aquiliana in relation to culpa
criminal or delito and mereculpa or fault, with pertinent citation of decisions of the
Supreme Court of Spain, the works of recognized civilians, and earlier jurisprudence
of our own, that the same given act can result in civil liability not only under the Penal
Code but also under the Civil Code. Thus, the opinion holds:

The legal provisions, authors, and cases already invoked should

ordinarily be sufficient to dispose of this case. But inasmuch as we
are announcing doctrines that have been little understood, in the
past, it might not he inappropriate to indicate their foundations.
Firstly, the Revised Penal Code in articles 365 punishes not only
reckless but also simple negligence. If we were to hold that articles
1902 to 1910 of the Civil Code refer only to fault or negligence not
punished by law, accordingly to the literal import of article 1093 of
the Civil Code, the legal institution of culpa aquiliana would have
very little scope and application in actual life. Death or injury to
persons and damage to property- through any degree of negligence
- even the slightest - would have to be Idemnified only through the
principle of civil liability arising from a crime. In such a state of
affairs, what sphere would remain for cuasi-delito or culpa
aquiliana? We are loath to impute to the lawmaker any intention to
bring about a situation so absurd and anomalous. Nor are we, in
the interpretation of the laws, disposed to uphold the letter that
killeth rather than the spirit that giveth life. We will not use the literal
meaning of the law to smother and render almost lifeless a principle
of such ancient origin and such full-grown development as culpa
aquiliana or cuasi-delito, which is conserved and made enduring in
articles 1902 to 1910 of the Spanish Civil Code.

The, above case is pertinent because it shows that the same act
machinist. come under both the Penal Code and the Civil Code. In
that case, the action of the agent killeth unjustified and fraudulent
and therefore could have been the subject of a criminal action. And
yet, it was held to be also a proper subject of a civil action under
article 1902 of the Civil Code. It is also to be noted that it was the
employer and not the employee who was being sued. (pp. 615-616,
73 Phil.). 1
It will be noticed that the defendant in the above case could have
been prosecuted in a criminal case because his negligence causing
the death of the child was punishable by the Penal Code. Here is
therefore a clear instance of the same act of negligence being a
proper subject matter either of a criminal action with its consequent
civil liability arising from a crime or of an entirely separate and
independent civil action for fault or negligence under article 1902 of
the Civil Code. Thus, in this jurisdiction, the separate individuality of
a cuasi-delito or culpa aquiliana, under the Civil Code has been
fully and clearly recognized, even with regard to a negligent act for
which the wrongdoer could have been prosecuted and convicted in
a criminal case and for which, after such a conviction, he could
have been sued for this civil liability arising from his crime. (p. 617,
73 Phil.) 2

Secondary, to find the accused guilty in a criminal case, proof of

guilt beyond reasonable doubt is required, while in a civil case,
preponderance of evidence is sufficient to make the defendant pay
in damages. There are numerous cases of criminal negligence
which can not be shown beyond reasonable doubt, but can be
proved by a preponderance of evidence. In such cases, the
defendant can and should be made responsible in a civil action
under articles 1902 to 1910 of the Civil Code. Otherwise. there
would be many instances of unvindicated civil wrongs. "Ubi jus
Idemnified remedium." (p. 620,73 Phil.)

It is most significant that in the case just cited, this Court specifically
applied article 1902 of the Civil Code. It is thus that although J. V.
House could have been criminally prosecuted for reckless or simple
negligence and not only punished but also made civilly liable
because of his criminal negligence, nevertheless this Court
awarded damages in an independent civil action for fault or
negligence under article 1902 of the Civil Code. (p. 618, 73 Phil.) 3

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

65

invoking articles 1902-1910 of the Civil Code. Although this habitual

method is allowed by, our laws, it has nevertheless rendered
practically useless and nugatory the more expeditious and effective
remedy based on culpa aquiliana or culpa extra-contractual. In the
present case, we are asked to help perpetuate this usual course.
But we believe it is high time we pointed out to the harms done by
such practice and to restore the principle of responsibility for fault or
negligence under articles 1902 et seq. of the Civil Code to its full
rigor. It is high time we caused the stream of quasi-delict or culpa
aquiliana to flow on its own natural channel, so that its waters may
no longer be diverted into that of a crime under the Penal Code.
This will, it is believed, make for the better safeguarding or private
rights because it realtor, an ancient and additional remedy, and for
the further reason that an independent civil action, not depending
on the issues, limitations and results of a criminal prosecution, and
entirely directed by the party wronged or his counsel, is more likely
to secure adequate and efficacious redress. (p. 621, 73 Phil.)

by the provisions of Chapter 2, Title XVII of this Book, (on quasi-delicts) and by
special laws." More precisely, a new provision, Article 2177 of the new code provides:
ART. 2177. Responsibility for fault or negligence under the
preceding article is entirely separate and distinct from the civil
liability arising from negligence under the Penal Code. But the
plaintiff cannot recover damages twice for the same act or omission
of the defendant.
According to the Code Commission: "The foregoing provision (Article 2177) through
at first sight startling, is not so novel or extraordinary when we consider the exact
nature of criminal and civil negligence. The former is a violation of the criminal law,
while the latter is a "culpa aquiliana" or quasi-delict, of ancient origin, having always
had its own foundation and individuality, separate from criminal negligence. Such
distinction between criminal negligence and "culpa extracontractual" or "cuasi-delito"
has been sustained by decision of the Supreme Court of Spain and maintained as
clear, sound and perfectly tenable by Maura, an outstanding Spanish jurist. Therefore,
under the proposed Article 2177, acquittal from an accusation of criminal negligence,
whether on reasonable doubt or not, shall not be a bar to a subsequent civil action,
not for civil liability arising from criminal negligence, but for damages due to a quasidelict or 'culpa aquiliana'. But said article forestalls a double recovery.", (Report of the
Code) Commission, p. 162.)

Contrary to an immediate impression one might get upon a reading of the foregoing
excerpts from the opinion in Garcia that the concurrence of the Penal Code and the
Civil Code therein referred to contemplate only acts of negligence and not intentional
voluntary acts - deeper reflection would reveal that the thrust of the pronouncements
therein is not so limited, but that in fact it actually extends to fault or culpa. This can
be seen in the reference made therein to the Sentence of the Supreme Court of Spain
of February 14, 1919, supra, which involved a case of fraud or estafa, not a negligent
act. Indeed, Article 1093 of the Civil Code of Spain, in force here at the time of Garcia,
provided textually that obligations "which are derived from acts or omissions in which
fault or negligence, not punishable by law, intervene shall be the subject of Chapter II,
Title XV of this book (which refers to quasi-delicts.)" And it is precisely the underline
qualification, "not punishable by law", that Justice Bocobo emphasized could lead to
an ultimo construction or interpretation of the letter of the law that "killeth, rather than
the spirit that giveth lift- hence, the ruling that "(W)e will not use the literal meaning of
the law to smother and render almost lifeless a principle of such ancient origin and
such full-grown development as culpa aquiliana orquasi-delito, which is conserved
and made enduring in articles 1902 to 1910 of the Spanish Civil Code." And so,
because Justice Bacobo was Chairman of the Code Commission that drafted the
original text of the new Civil Code, it is to be noted that the said Code, which was
enacted after the Garcia doctrine, no longer uses the term, 11 not punishable by law,"
thereby making it clear that the concept of culpa aquiliana includes acts which are
criminal in character or in violation of the penal law, whether voluntary or matter.
Thus, the corresponding provisions to said Article 1093 in the new code, which is
Article 1162, simply says, "Obligations derived from quasi-delicto shall be governed

Although, again, this Article 2177 does seem to literally refer to only acts of
negligence, the same argument of Justice Bacobo about construction that upholds
"the spirit that giveth lift- rather than that which is literal that killeth the intent of the
lawmaker should be observed in applying the same. And considering that the
preliminary chapter on human relations of the new Civil Code definitely establishes
the separability and independence of liability in a civil action for acts criminal in
character (under Articles 29 to 32) from the civil responsibility arising from crime fixed
by Article 100 of the Revised Penal Code, and, in a sense, the Rules of Court, under
Sections 2 and 3 (c), Rule 111, contemplate also the same separability, it is "more
congruent with the spirit of law, equity and justice, and more in harmony with modern
progress"- to borrow the felicitous relevant language in Rakes vs. Atlantic. Gulf and
Pacific Co., 7 Phil. 359, to hold, as We do hold, that Article 2176, where it refers to
"fault or negligencia covers not only acts "not punishable by law" but also acts
criminal in character, whether intentional and voluntary or negligent. Consequently, a
separate civil action lies against the offender in a criminal act, whether or not he is
criminally prosecuted and found guilty or acquitted, provided that the offended party is
not allowed, if he is actually charged also criminally, to recover damages on both
scores, and would be entitled in such eventuality only to the bigger award of the two,
assuming the awards made in the two cases vary. In other words, the extinction of

66

civil liability referred to in Par. (e) of Section 3, Rule 111, refers exclusively to civil
liability founded on Article 100 of the Revised Penal Code, whereas the civil liability
for the same act considered as a quasi-delict only and not as a crime is not
estinguished even by a declaration in the criminal case that the criminal act charged
has not happened or has not been committed by the accused. Briefly stated, We here
hold, in reiteration of Garcia, thatculpa aquiliana includes voluntary and negligent acts
which may be punishable by law.4

be sued without the assistance of the parents, is that such emancipation does not
carry with it freedom to enter into transactions or do any act that can give rise to
judicial litigation. (See Manresa, Id., Vol. II, pp. 766-767, 776.) And surely, killing
someone else invites judicial action. Otherwise stated, the marriage of a minor child
does not relieve the parents of the duty to see to it that the child, while still a minor,
does not give answerable for the borrowings of money and alienation or encumbering
of real property which cannot be done by their minor married child without their
consent. (Art. 399; Manresa, supra.)

It results, therefore, that the acquittal of Reginal Hill in the criminal case has not
extinguished his liability for quasi-delict, hence that acquittal is not a bar to the instant
action against him.

Accordingly, in Our considered view, Article 2180 applies to Atty. Hill notwithstanding
the emancipation by marriage of Reginald. However, inasmuch as it is evident that
Reginald is now of age, as a matter of equity, the liability of Atty. Hill has become
milling, subsidiary to that of his son.

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

WHEREFORE, the order appealed from is reversed and the trial court is ordered to
proceed in accordance with the foregoing opinion. Costs against appellees.

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

Fernando (Chairman), Antonio, and Martin, JJ., concur.

Concepcion Jr., J, is on leave.
Martin, J, was designated to sit in the Second Division.

AQUINO, J, concurring:

Now under Article 2180, "(T)he obligation imposed by article 2176 is demandable not
only for one's own acts or omissions, but also for those of persons for whom one is
responsible. The father and, in case of his death or incapacity, the mother, are
responsible. The father and, in case of his death or incapacity, the mother, are
responsible for the damages caused by the minor children who live in their company."
In the instant case, it is not controverted that Reginald, although married, was living
with his father and getting subsistence from him at the time of the occurrence in
question. Factually, therefore, Reginald was still subservient to and dependent on his
father, a situation which is not unusual.

Article 2176 of the Civil Code comprehends any culpable act, which is blameworthy,
when judged by accepted legal standards. "The Idea thus expressed is undoubtedly
board enough to include any rational conception of liability for the tortious acts likely
to be developed in any society." (Street, J. in Daywalt vs. Corporacion de PP.
Agustinos Recoletos, 39 Phil. 587, 600). See article 38, Civil Code and the ruling that
"the infant tortfeasor is liable in a civil action to the injured person in the same manner
and to the same extent as an adult" (27 Am. Jur. 812 cited by Bocobo, J., in Magtibay
vs. Tiangco, 74 Phil. 576, 579).

It must be borne in mind that, according to Manresa, the reason behind the joint and
solidary liability of presuncion with their offending child under Article 2180 is that is the
obligation of the parent to supervise their minor children in order to prevent them from
causing damage to third persons. 5 On the other hand, the clear implication of Article
399, in providing that a minor emancipated by marriage may not, nevertheless, sue or

Republic of the Philippines

SUPREME COURT
Manila

67

THIRD DIVISION

Subsequently, on February 22, 1983, petitioners filed another action against

respondent corporation, this time a civil case, docketed as Civil Case No. TG-748, for
damages with prayer for the issuance of a writ of preliminary injunction before the
same court. 1

G.R. No. 74761 November 6, 1990

NATIVIDAD V. ANDAMO and EMMANUEL R. ANDAMO, petitioners,

vs.
INTERMEDIATE APPELLATE COURT (First Civil Cases Division) and

On March 11, 1983, respondent corporation filed its answer to the complaint and
opposition to the issuance of a writ of preliminary injunction. Hearings were
conducted including ocular inspections on the land. However, on April 26, 1984, the
trial court, acting on respondent corporation's motion to dismiss or suspend the civil
action, issued an order suspending further hearings in Civil Case No, TG-748 until
after judgment in the related Criminal Case No. TG-907-82.

MISSIONARIES OF OUR LADY OF LA SALETTE, INC., respondents.

Lope E. Adriano for petitioners.
Padilla Law Office for private respondent.

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

FERNAN, C.J.:
The pivotal issue in this petition for certiorari, prohibition and mandamus is whether a
corporation, which has built through its agents, waterpaths, water conductors and
contrivances within its land, thereby causing inundation and damage to an adjacent
land, can be held civilly liable for damages under Articles 2176 and 2177 of the Civil
Code on quasi-delicts such that the resulting civil case can proceed independently of
the criminal case.

Petitioners appealed from that order to the Intermediate Appellate Court. 3

On February 17, 1986, respondent Appellate Court, First Civil Cases Division,
promulgated a decision 4 affirming the questioned order of the trial court. 5 A motion
for reconsideration filed by petitioners was denied by the Appellate Court in its
resolution dated May 19, 1986. 6

The antecedent facts are as follows:

Petitioner spouses Emmanuel and Natividad Andamo are the owners of a parcel of
land situated in Biga (Biluso) Silang, Cavite which is adjacent to that of private
respondent, Missionaries of Our Lady of La Salette, Inc., a religious corporation.

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

Within the land of respondent corporation, waterpaths and contrivances, including an

artificial lake, were constructed, which allegedly inundated and eroded petitioners'
land, caused a young man to drown, damaged petitioners' crops and plants, washed
away costly fences, endangered the lives of petitioners and their laborers during rainy
and stormy seasons, and exposed plants and other improvements to destruction.

It is axiomatic that the nature of an action filed in court is determined by the facts
alleged in the complaint as constituting the cause of action. 7 The purpose of an
action or suit and the law to govern it, including the period of prescription, is to be
determined not by the claim of the party filing the action, made in his argument or
brief, but rather by the complaint itself, its allegations and prayer for relief. 8 The
nature of an action is not necessarily determined or controlled by its title or heading
but the body of the pleading or complaint itself. To avoid possible denial of substantial
justice due to legal technicalities, pleadings as well as remedial laws should be

In July 1982, petitioners instituted a criminal action, docketed as Criminal Case No.
TG-907-82, before the Regional Trial Court of Cavite, Branch 4 (Tagaytay City),
against Efren Musngi, Orlando Sapuay and Rutillo Mallillin, officers and directors of
herein respondent corporation, for destruction by means of inundation under Article
324 of the Revised Penal Code.

68

liberally construed so that the litigants may have ample opportunity to prove their
respective claims. 9

a) Portions of the land of plaintiffs were eroded

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

Quoted hereunder are the pertinent portions of petitioners' complaint in Civil Case No.
TG-748:

b) Costly fences constructed by plaintiffs were, on

several occasions, washed away.

4) That within defendant's land, likewise located at Biga (Biluso),

Silang, Cavite, adjacent on the right side of the aforesaid land of
plaintiffs, defendant constructed waterpaths starting from the
middle-right portion thereof leading to a big hole or opening, also
constructed by defendant, thru the lower portion of its concrete
hollow-blocks fence situated on the right side of its cemented gate
fronting the provincial highway, and connected by defendant to a
man height inter-connected cement culverts which were also
constructed and lain by defendant cross-wise beneath the tip of the
said cemented gate, the left-end of the said inter-connected
culverts again connected by defendant to a big hole or opening thru
the lower portion of the same concrete hollowblocks fence on the
left side of the said cemented gate, which hole or opening is
likewise connected by defendant to the cemented mouth of a big
canal, also constructed by defendant, which runs northward
towards a big hole or opening which was also built by defendant
thru the lower portion of its concrete hollow-blocks fence which
separates the land of plaintiffs from that of defendant (and which
serves as the exit-point of the floodwater coming from the land of
defendant, and at the same time, the entrance-point of the same
floodwater to the land of plaintiffs, year after year, during rainy or
stormy seasons.

c) During rainy and stormy seasons the lives of

plaintiffs and their laborers are always in danger.
d) Plants and other improvements on other
portions of the land of plaintiffs are exposed to
destruction. ... 10
A careful examination of the aforequoted complaint shows that the civil action is one
under Articles 2176 and 2177 of the Civil Code on quasi-delicts. All the elements of a
quasi-delict are present, to wit: (a) damages suffered by the plaintiff, (b) fault or
negligence of the defendant, or some other person for whose acts he must respond;
and (c) the connection of cause and effect between the fault or negligence of the
defendant and the damages incurred by the plaintiff. 11
Clearly, from petitioner's complaint, the waterpaths and contrivances built by
respondent corporation are alleged to have inundated the land of petitioners. There is
therefore, an assertion of a causal connection between the act of building these
waterpaths and the damage sustained by petitioners. Such action if proven
constitutes fault or negligence which may be the basis for the recovery of damages.
In the case of Samson vs. Dionisio, 12 the Court applied Article 1902, now Article 2176
of the Civil Code and held that "any person who without due authority constructs a
bank or dike, stopping the flow or communication between a creek or a lake and a
river, thereby causing loss and damages to a third party who, like the rest of the
residents, is entitled to the use and enjoyment of the stream or lake, shall be liable to
the payment of an indemnity for loss and damages to the injured party.

5) That moreover, on the middle-left portion of its land just beside

the land of plaintiffs, defendant also constructed an artificial lake,
the base of which is soil, which utilizes the water being channeled
thereto from its water system thru inter-connected galvanized iron
pipes (No. 2) and complimented by rain water during rainy or
stormy seasons, so much so that the water below it seeps into, and
the excess water above it inundates, portions of the adjoining land
of plaintiffs.

While the property involved in the cited case belonged to the public domain and the
property subject of the instant case is privately owned, the fact remains that
petitioners' complaint sufficiently alleges that petitioners have sustained and will
continue to sustain damage due to the waterpaths and contrivances built by
respondent corporation. Indeed, the recitals of the complaint, the alleged presence of
damage to the petitioners, the act or omission of respondent corporation supposedly
constituting fault or negligence, and the causal connection between the act and the

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

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

69

damage, with no pre-existing contractual obligation between the parties make a clear
case of a quasi delict or culpa aquiliana.

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

It must be stressed that the use of one's property is not without limitations. Article 431
of the Civil Code provides that "the owner of a thing cannot make use thereof in such
a manner as to injure the rights of a third person." SIC UTERE TUO UT ALIENUM
NON LAEDAS. Moreover, adjoining landowners have mutual and reciprocal duties
which require that each must use his own land in a reasonable manner so as not to
infringe upon the rights and interests of others. Although we recognize the right of an
owner to build structures on his land, such structures must be so constructed and
maintained using all reasonable care so that they cannot be dangerous to adjoining
landowners and can withstand the usual and expected forces of nature. If the
structures cause injury or damage to an adjoining landowner or a third person, the
latter can claim indemnification for the injury or damage suffered.

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

Article 2176 of the Civil Code imposes a civil liability on a person for damage caused
by his act or omission constituting fault or negligence, thus:
Article 2176. Whoever by act or omission causes damage to
another, there being fault or negligence, is obliged to pay for the
damage done. Such fault or negligence, if there is no pre-existing
contractual relation between the parties, is called a quasi-delict and
is governed by the provisions of this chapter.

In Azucena vs. Potenciano, 16 the Court declared that in quasi-delicts, "(t)he civil
action is entirely independent of the criminal case according to Articles 33 and 2177
of the Civil Code. There can be no logical conclusion than this, for to subordinate the
civil action contemplated in the said articles to the result of the criminal prosecution
whether it be conviction or acquittal would render meaningless the independent
character of the civil action and the clear injunction in Article 31, that his action may
proceed independently of the criminal proceedings and regardless of the result of the
latter."

Article 2176, whenever it refers to "fault or negligence", covers not only acts "not
punishable by law" but also acts criminal in character, whether intentional and
voluntary or negligent. Consequently, a separate civil action lies against the offender
in a criminal act, whether or not he is criminally prosecuted and found guilty or
acquitted, provided that the offended party is not allowed, (if the tortfeasor is actually
charged also criminally), to recover damages on both scores, and would be entitled in
such eventuality only to the bigger award of the two, assuming the awards made in
the two cases vary. 13

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

The distinctness of quasi-delicta is shown in Article 2177 of the Civil Code, which
states:
Article 2177. Responsibility for fault or negligence under the
preceding article is entirely separate and distinct from the civil
liability arising from negligence under the Penal Code. But the
plaintiff cannot recover damages twice for the same act or omission
of the defendant.

SO ORDERED.

70

Republic of the Philippines

SUPREME COURT
Manila

October of that year; petitioner then visited the private respondent's parents in
Baaga, Bugallon, Pangasinan to secure their approval to the marriage; sometime in
20 August 1987, the petitioner forced her to live with him in the Lozano Apartments;
she was a virgin before she began living with him; a week before the filing of the
complaint, petitioner's attitude towards her started to change; he maltreated and
threatened to kill her; as a result of such maltreatment, she sustained injuries; during
a confrontation with a representative of the barangay captain of Guilig a day before
the filing of the complaint, petitioner repudiated their marriage agreement and asked
her not to live with him anymore and; the petitioner is already married to someone
living in Bacolod City. Private respondent then prayed for judgment ordering the
petitioner to pay her damages in the amount of not less than P45,000.00,
reimbursement for actual expenses amounting to P600.00, attorney's fees and costs,
and granting her such other relief and remedies as may be just and equitable. The
complaint was docketed as Civil Case No. 16503.

THIRD DIVISION

G.R. No. 97336 February 19, 1993

GASHEM
SHOOKAT
BAKSH, petitioner,
vs.
HON. COURT OF APPEALS and MARILOU T. GONZALES, respondents.

In his Answer with Counterclaim, 3 petitioner admitted only the personal

circumstances of the parties as averred in the complaint and denied the rest of the
allegations either for lack of knowledge or information sufficient to form a belief as to
the truth thereof or because the true facts are those alleged as his Special and
Affirmative Defenses. He thus claimed that he never proposed marriage to or agreed
to be married with the private respondent; he neither sought the consent and approval
of her parents nor forced her to live in his apartment; he did not maltreat her, but only
told her to stop coming to his place because he discovered that she had deceived him
by stealing his money and passport; and finally, no confrontation took place with a
representative of the barangay captain. Insisting, in his Counterclaim, that the
complaint is baseless and unfounded and that as a result thereof, he was
unnecessarily dragged into court and compelled to incur expenses, and has suffered
mental anxiety and a besmirched reputation, he prayed for an award of P5,000.00 for
miscellaneous expenses and P25,000.00 as moral damages.

Public Attorney's Office for petitioner.

Corleto R. Castro for private respondent.

DAVIDE, JR., J.:

This is an appeal by certiorari under Rule 45 of the Rules of Court seeking to review
and set aside the Decision 1of the respondent Court of Appeals in CA-G.R. CV No.
24256 which affirmed in toto the 16 October 1939 Decision of Branch 38 (Lingayen)
of the Regional Trial Court (RTC) of Pangasinan in Civil Case No. 16503. Presented
is the issue of whether or not damages may be recovered for a breach of promise to
marry on the basis of Article 21 of the Civil Code of the Philippines.

After conducting a pre-trial on 25 January 1988, the trial court issued a Pre-Trial
Order 4 embodying the stipulated facts which the parties had agreed upon, to wit:

The antecedents of this case are not complicated:

On 27 October 1987, private respondent, without the assistance of counsel, filed with
the aforesaid trial court a complaint 2 for damages against the petitioner for the
alleged violation of their agreement to get married. She alleges in said complaint that:
she is twenty-two (22) years old, single, Filipino and a pretty lass of good moral
character and reputation duly respected in her community; petitioner, on the other
hand, is an Iranian citizen residing at the Lozano Apartments, Guilig, Dagupan City,
and is an exchange student taking a medical course at the Lyceum Northwestern
Colleges in Dagupan City; before 20 August 1987, the latter courted and proposed to
marry her; she accepted his love on the condition that they would get married; they
therefore agreed to get married after the end of the school semester, which was in

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

Pangasinan, while the defendant is single, Iranian citizen and
resident (sic) of Lozano Apartment, Guilig, Dagupan City since
September 1, 1987 up to the present;
2. That the defendant is presently studying at Lyceum
Northwestern, Dagupan City, College of Medicine, second year
medicine proper;

71

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

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

The above findings and conclusions were culled from the detailed summary of the
evidence for the private respondent in the foregoing decision, digested by the
respondent Court as follows:

4. That the parties happened to know each other when the

manager of the Mabuhay Luncheonette, Johhny Rabino introduced
the defendant to the plaintiff on August 3, 1986.

According to plaintiff, who claimed that she was a virgin at the time
and that she never had a boyfriend before, defendant started
courting her just a few days after they first met. He later proposed
marriage to her several times and she accepted his love as well as
his proposal of marriage on August 20, 1987, on which same day
he went with her to her hometown of Baaga, Bugallon,
Pangasinan, as he wanted to meet her parents and inform them of
their relationship and their intention to get married. The
photographs Exhs. "A" to "E" (and their submarkings) of defendant
with members of plaintiff's family or with plaintiff, were taken that
day. Also on that occasion, defendant told plaintiffs parents and
brothers and sisters that he intended to marry her during the
semestral break in October, 1987, and because plaintiff's parents
thought he was good and trusted him, they agreed to his proposal
for him to marry their daughter, and they likewise allowed him to
stay in their house and sleep with plaintiff during the few days that
they were in Bugallon. When plaintiff and defendant later returned
to Dagupan City, they continued to live together in defendant's
apartment. However, in the early days of October, 1987, defendant
would tie plaintiff's hands and feet while he went to school, and he
even gave her medicine at 4 o'clock in the morning that made her
sleep the whole day and night until the following day. As a result of
this live-in relationship, plaintiff became pregnant, but defendant
gave her some medicine to abort the fetus. Still plaintiff continued
to live with defendant and kept reminding him of his promise to
marry her until he told her that he could not do so because he was
already married to a girl in Bacolod City. That was the time plaintiff
left defendant, went home to her parents, and thereafter consulted
a lawyer who accompanied her to the barangay captain in Dagupan
City. Plaintiff, her lawyer, her godmother, and a barangay tanod
sent by the barangay captain went to talk to defendant to still
convince him to marry plaintiff, but defendant insisted that he could
not do so because he was already married to a girl in Bacolod City,
although the truth, as stipulated by the parties at the pre-trial, is that
defendant is still single.

After trial on the merits, the lower court, applying Article 21 of the Civil Code,
rendered on 16 October 1989 a decision 5 favoring the private respondent. The
petitioner was thus ordered to pay the latter damages and attorney's fees; the
dispositive portion of the decision reads:
IN THE LIGHT of the foregoing consideration, judgment is hereby
rendered in favor of the plaintiff and against the defendant.
1. Condemning (sic) the defendant to pay the plaintiff the sum of
twenty thousand (P20,000.00) pesos as moral damages.
2. Condemning further the defendant to play the plaintiff the sum of
three thousand (P3,000.00) pesos as atty's fees and two thousand
(P2,000.00) pesos at (sic) litigation expenses and to pay the costs.
3. All other claims are denied. 6
The decision is anchored on the trial court's findings and conclusions that (a)
petitioner and private respondent were lovers, (b) private respondent is not a woman
of loose morals or questionable virtue who readily submits to sexual advances, (c)
petitioner, through machinations, deceit and false pretenses, promised to marry
private respondent, d) because of his persuasive promise to marry her, she allowed
herself to be deflowered by him, (e) by reason of that deceitful promise, private
respondent and her parents in accordance with Filipino customs and traditions
made some preparations for the wedding that was to be held at the end of October
1987 by looking for pigs and chickens, inviting friends and relatives and contracting
sponsors, (f) petitioner did not fulfill his promise to marry her and (g) such acts of the
petitioner, who is a foreigner and who has abused Philippine hospitality, have
offended our sense of morality, good customs, culture and traditions. The trial court
gave full credit to the private respondent's testimony because, inter alia, she would
not have had the temerity and courage to come to court and expose her honor and
reputation to public scrutiny and ridicule if her claim was false. 7

72

Plaintiff's father, a tricycle driver, also claimed that after defendant

had informed them of his desire to marry Marilou, he already looked
for sponsors for the wedding, started preparing for the reception by

looking for pigs and chickens, and even already invited many
relatives and friends to the forthcoming wedding. 8

was working and where defendant first proposed marriage to her,

also knew of this love affair and defendant's proposal of marriage to
plaintiff, which she declared was the reason why plaintiff resigned
from her job at the restaurant after she had accepted defendant's
proposal (pp. 6-7, tsn March 7, 1988).

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

Upon the other hand, appellant does not appear to be a man of

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

On 18 February 1991, respondent Court promulgated the challenged

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

and then concluded:

In sum, we are strongly convinced and so hold that it was
defendant-appellant's fraudulent and deceptive protestations of
love for and promise to marry plaintiff that made her surrender her
virtue and womanhood to him and to live with him on the honest
and sincere belief that he would keep said promise, and it was
likewise these (sic) fraud and deception on appellant's part that
made plaintiff's parents agree to their daughter's living-in with him
preparatory to their supposed marriage. And as these acts of
appellant are palpably and undoubtedly against morals, good
customs, and public policy, and are even gravely and deeply
derogatory and insulting to our women, coming as they do from a
foreigner who has been enjoying the hospitality of our people and
taking advantage of the opportunity to study in one of our
institutions of learning, defendant-appellant should indeed be
made, under Art. 21 of the Civil Code of the Philippines, to
compensate for the moral damages and injury that he had caused
plaintiff, as the lower court ordered him to do in its decision in this
case. 12
Unfazed by his second defeat, petitioner filed the instant petition on 26 March 1991;
he raises therein the single issue of whether or not Article 21 of the Civil Code applies
to the case at bar. 13

73

It is petitioner's thesis that said Article 21 is not applicable because he had not
committed any moral wrong or injury or violated any good custom or public policy; he
has not professed love or proposed marriage to the private respondent; and he has
never maltreated her. He criticizes the trial court for liberally invoking Filipino customs,
traditions and culture, and ignoring the fact that since he is a foreigner, he is not
conversant with such Filipino customs, traditions and culture. As an Iranian Moslem,
he is not familiar with Catholic and Christian ways. He stresses that even if he had
made a promise to marry, the subsequent failure to fulfill the same is excusable or
tolerable because of his Moslem upbringing; he then alludes to the Muslim Code
which purportedly allows a Muslim to take four (4) wives and concludes that on the
basis thereof, the trial court erred in ruling that he does not posses good moral
character. Moreover, his controversial "common law life" is now his legal wife as their
marriage had been solemnized in civil ceremonies in the Iranian Embassy. As to his
unlawful cohabitation with the private respondent, petitioner claims that even if
responsibility could be pinned on him for the live-in relationship, the private
respondent should also be faulted for consenting to an illicit arrangement. Finally,
petitioner asseverates that even if it was to be assumed arguendo that he had
professed his love to the private respondent and had also promised to marry her,
such acts would not be actionable in view of the special circumstances of the case.
The mere breach of promise is not actionable. 14

the lower court. There are, however, recognized exceptions to this rule. Thus,
inMedina vs. Asistio, Jr., 16 this Court took the time, again, to enumerate these
exceptions:
xxx xxx xxx
(1) When the conclusion is a finding grounded entirely on
speculation, surmises or conjectures (Joaquin v. Navarro, 93 Phil.
257 [1953]); (2) When the inference made is manifestly mistaken,
absurb or impossible (Luna v. Linatok, 74 Phil. 15 [1942]); (3)
Where there is a grave abuse of discretion (Buyco v. People, 95
Phil. 453 [1955]); (4) When the judgment is based on a
misapprehension
of
facts
(Cruz
v.
Sosing,
L-4875, Nov. 27, 1953); (5) When the findings of fact are conflicting
(Casica v. Villaseca, L-9590 Ap. 30, 1957; unrep.) (6) When the
Court of Appeals, in making its findings, went beyond the issues of
the case and the same is contrary to the admissions of both
appellate and appellee (Evangelista v. Alto Surety and Insurance
Co.,
103
Phil.
401
[1958]);
(7) The findings of the Court of Appeals are contrary to those of the
trial court (Garcia v. Court of Appeals, 33 SCRA 622 [1970]; Sacay
v. Sandiganbayan, 142 SCRA 593 [1986]); (8) When the findings of
fact are conclusions without citation of specific evidence on which
they are based (Ibid.,); (9) When the facts set forth in the petition as
well as in the petitioners main and reply briefs are not disputed by
the respondents (Ibid.,); and (10) The finding of fact of the Court of
Appeals is premised on the supposed absence of evidence and is
contradicted by the evidence on record (Salazar v. Gutierrez, 33
SCRA 242 [1970]).

On 26 August 1991, after the private respondent had filed her Comment to the
petition and the petitioner had filed his Reply thereto, this Court gave due course to
the petition and required the parties to submit their respective Memoranda, which
they subsequently complied with.
As may be gleaned from the foregoing summation of the petitioner's arguments in
support of his thesis, it is clear that questions of fact, which boil down to the issue of
the credibility of witnesses, are also raised. It is the rule in this jurisdiction that
appellate courts will not disturb the trial court's findings as to the credibility of
witnesses, the latter court having heard the witnesses and having had the opportunity
to observe closely their deportment and manner of testifying, unless the trial court had
plainly overlooked facts of substance or value which, if considered, might affect the
result of the case. 15

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

Petitioner has miserably failed to convince Us that both the appellate and trial courts
had overlooked any fact of substance or values which could alter the result of the
case.

The existing rule is that a breach of promise to marry per se is not an actionable
wrong. 17 Congress deliberately eliminated from the draft of the New Civil Code the
provisions that would have made it so. The reason therefor is set forth in the report of
the Senate Committees on the Proposed Civil Code, from which We quote:

Equally settled is the rule that only questions of law may be raised in a petition for
review on certiorari under Rule 45 of the Rules of Court. It is not the function of this
Court to analyze or weigh all over again the evidence introduced by the parties before

74

The elimination of this chapter is proposed. That breach of promise

to marry is not actionable has been definitely decided in the case of
De Jesus vs. Syquia. 18 The history of breach of promise suits in the
United States and in England has shown that no other action lends
itself more readily to abuse by designing women and unscrupulous
men. It is this experience which has led to the abolition of rights of
action in the so-called Heart Balm suits in many of the American
states. . . . 19

moral wrongs which it is impossible for human foresight to provide

for specifically in the statutes. 21
Article 2176 of the Civil Code, which defines a quasi-delict thus:
Whoever by act or omission causes damage to another, there being
fault or negligence, is obliged to pay for the damage done. Such
fault or negligence, if there is no pre-existing contractual relation
between the parties, is called a quasi-delict and is governed by the
provisions of this Chapter.

This notwithstanding, the said Code contains a provision, Article 21, which is
designed to expand the concept of torts or quasi-delict in this jurisdiction by granting
adequate legal remedy for the untold number of moral wrongs which is impossible for
human foresight to specifically enumerate and punish in the statute books. 20

is limited to negligent acts or omissions and excludes the notion of

willfulness or intent. Quasi-delict, known in Spanish legal treatises as culpa
aquiliana, is a civil law concept while torts is an Anglo-American or common
law concept. Torts is much broader than culpa aquiliana because it includes
not only negligence, but international criminal acts as well such as assault
and battery, false imprisonment and deceit. In the general scheme of the
Philippine legal system envisioned by the Commission responsible for
drafting the New Civil Code, intentional and malicious acts, with certain
exceptions, are to be governed by the Revised Penal Code while negligent
acts or omissions are to be covered by Article 2176 of the Civil Code. 22 In
between these opposite spectrums are injurious acts which, in the absence
of Article 21, would have been beyond redress. Thus, Article 21 fills that
vacuum. It is even postulated that together with Articles 19 and 20 of the
Civil Code, Article 21 has greatly broadened the scope of the law on civil
wrongs; it has become much more supple and adaptable than the AngloAmerican law on torts. 23

As the Code Commission itself stated in its Report:

But the Code Commission had gone farther than the sphere of
wrongs defined or determined by positive law. Fully sensible that
there are countless gaps in the statutes, which leave so many
victims of moral wrongs helpless, even though they have actually
suffered material and moral injury, the Commission has deemed it
necessary, in the interest of justice, to incorporate in the proposed
Civil Code the following rule:
Art. 23. Any person who wilfully causes loss or
injury to another in a manner that is contrary to
morals, good customs or public policy shall
compensate the latter for the damage.
An example will illustrate the purview of the foregoing norm: "A"
seduces the nineteen-year old daughter of "X". A promise of
marriage either has not been made, or can not be proved. The girl
becomes pregnant. Under the present laws, there is no crime, as
the girl is above nineteen years of age. Neither can any civil action
for breach of promise of marriage be filed. Therefore, though the
grievous moral wrong has been committed, and though the girl and
family have suffered incalculable moral damage, she and her
parents cannot bring action for damages. But under the proposed
article, she and her parents would have such a right of action.

In the light of the above laudable purpose of Article 21, We are of the opinion, and so
hold, that where a man's promise to marry is in fact the proximate cause of the
acceptance of his love by a woman and his representation to fulfill that promise
thereafter becomes the proximate cause of the giving of herself unto him in a sexual
congress, proof that he had, in reality, no intention of marrying her and that the
promise was only a subtle scheme or deceptive device to entice or inveigle her to
accept him and to obtain her consent to the sexual act, could justify the award of
damages pursuant to Article 21 not because of such promise to marry but because of
the fraud and deceit behind it and the willful injury to her honor and reputation which
followed thereafter. It is essential, however, that such injury should have been
committed in a manner contrary to morals, good customs or public policy.

Thus at one stroke, the legislator, if the forgoing rule is approved,

would vouchsafe adequate legal remedy for that untold number of

In the instant case, respondent Court found that it was the petitioner's "fraudulent and
deceptive protestations of love for and promise to marry plaintiff that made her

75

surrender her virtue and womanhood to him and to live with him on the honest and
sincere belief that he would keep said promise, and it was likewise these fraud and
deception on appellant's part that made plaintiff's parents agree to their daughter's
living-in with him preparatory to their supposed marriage." 24 In short, the private
respondent surrendered her virginity, the cherished possession of every single
Filipina, not because of lust but because of moral seduction the kind illustrated by
the Code Commission in its example earlier adverted to. The petitioner could not be
held liable for criminal seduction punished under either Article 337 or Article 338 of
the Revised Penal Code because the private respondent was above eighteen (18)
years of age at the time of the seduction.

To constitute seduction there must in all cases be

some sufficient promise or inducementand the
woman must yield because of the promise or
other inducement. If she consents merely from
carnal lust and the intercourse is from mutual
desire, there is no seduction (43 Cent. Dig. tit.
Seduction, par. 56) She must be induced to
depart from the path of virtue by the use of some
species of arts, persuasions and wiles, which are
calculated to have and do have that effect, and
which result in her person to ultimately submitting
her person to the sexual embraces of her
seducer (27 Phil. 123).

Prior decisions of this Court clearly suggest that Article 21 may be applied in a breach
of promise to marry where the woman is a victim of moral seduction. Thus,
in Hermosisima vs. Court of Appeals, 25 this Court denied recovery of damages to the
woman because:

And in American Jurisprudence we find:

. . . we find ourselves unable to say that petitioner is morally guilty

of seduction, not only because he is approximately ten (10) years
younger than the complainant who was around thirty-six (36)
years of age, and as highly enlightened as a former high school
teacher and a life insurance agent are supposed to be when she
became intimate with petitioner, then a mere apprentice pilot, but,
also, because the court of first instance found that, complainant
"surrendered herself" to petitioner because, "overwhelmed by her
love" for him, she "wanted to bind" him by having a fruit of their
engagement even before they had the benefit of clergy.

On the other hand, in an action by the woman,

the enticement, persuasion or deception is the
essence of the injury; and a mere proof of
intercourse is insufficient to warrant a recovery.
Accordingly it is not seduction where the
willingness arises out of sexual desire of curiosity
of the female, and the defendant merely affords
her the needed opportunity for the commission of
the act. It has been emphasized that to allow a
recovery in all such cases would tend to the
demoralization of the female sex, and would be a
reward for unchastity by which a class of
adventuresses would be swift to profit. (47 Am.
Jur. 662)

In Tanjanco vs. Court of Appeals, 26 while this Court likewise hinted at possible
recovery if there had been moral seduction, recovery was eventually denied because
We were not convinced that such seduction existed. The following enlightening
disquisition and conclusion were made in the said case:
The Court of Appeals seem to have overlooked that the example
set forth in the Code Commission's memorandum refers to a tort
upon a minor who had been seduced. The essential feature is
seduction, that in law is more than mere sexual intercourse, or a
breach of a promise of marriage; it connotes essentially the idea of
deceit, enticement, superior power or abuse of confidence on the
part of the seducer to which the woman has yielded (U.S. vs.
Buenaventura, 27 Phil. 121; U.S. vs. Arlante, 9 Phil. 595).

xxx xxx xxx

Over and above the partisan allegations, the fact stand out that for
one whole year, from 1958 to 1959, the plaintiff-appellee, a woman
of adult age, maintain intimate sexual relations with appellant, with
repeated acts of intercourse. Such conduct is incompatible with the
idea of seduction. Plainly there is here voluntariness and mutual
passion; for had the appellant been deceived, had she surrendered
exclusively because of the deceit, artful persuasions and wiles of
the defendant, she would not have again yielded to his embraces,

It has been ruled in the Buenaventura case (supra) that

76

much less for one year, without exacting early fulfillment of the
alleged promises of marriage, and would have cut short all sexual
relations upon finding that defendant did not intend to fulfill his
defendant did not intend to fulfill his promise. Hence, we conclude
that no case is made under article 21 of the Civil Code, and no
other cause of action being alleged, no error was committed by the
Court of First Instance in dismissing the complaint. 27

circumstances, because an act which would deceive a girl sixteen

years of age may not constitute deceit as to an experienced woman
thirty years of age. But so long as there is a wrongful act and a
resulting injury, there should be civil liability, even if the act is not
punishable under the criminal law and there should have been an
acquittal or dismissal of the criminal case for that reason.
We are unable to agree with the petitioner's alternative proposition to the effect that
granting, for argument's sake, that he did promise to marry the private respondent,
the latter is nevertheless also at fault. According to him, both parties are in pari
delicto; hence, pursuant to Article 1412(1) of the Civil Code and the doctrine laid
down inBatarra vs. Marcos, 32 the private respondent cannot recover damages from
the petitioner. The latter even goes as far as stating that if the private respondent had
"sustained any injury or damage in their relationship, it is primarily because of her
own doing, 33 for:

In his annotations on the Civil Code, 28 Associate Justice Edgardo L. Paras, who
recently retired from this Court, opined that in a breach of promise to marry where
there had been carnal knowledge, moral damages may be recovered:
. . . if there be criminal or moral seduction, but not if the intercourse
was due to mutual lust. (Hermosisima vs. Court of Appeals,
L-14628, Sept. 30, 1960; Estopa vs. Piansay, Jr., L-14733, Sept.
30, 1960; Batarra vs. Marcos, 7 Phil. 56 (sic); Beatriz Galang vs.
Court of Appeals, et al., L-17248, Jan. 29, 1962). (In other words, if
the CAUSE be the promise to marry, and the EFFECT be the carnal
knowledge, there is a chance that there was criminal or moral
seduction, hence recovery of moral damages will prosper. If it be
the other way around, there can be no recovery of moral damages,
because here mutual lust has intervened). . . .

. . . She is also interested in the petitioner as the latter will become

a doctor sooner or later. Take notice that she is a plain high school
graduate and a mere employee . . . (Annex "C") or a waitress (TSN,
p. 51, January 25, 1988) in a luncheonette and without doubt, is in
need of a man who can give her economic security. Her family is in
dire need of financial assistance. (TSN, pp. 51-53, May 18, 1988).
And this predicament prompted her to accept a proposition that
may have been offered by the petitioner. 34

together with "ACTUAL damages, should there be any, such as the

expenses for the wedding presentations (See Domalagon v. Bolifer, 33 Phil.
471).

These statements reveal the true character and motive of the petitioner. It is clear that
he harbors a condescending, if not sarcastic, regard for the private respondent on
account of the latter's ignoble birth, inferior educational background, poverty and, as
perceived by him, dishonorable employment. Obviously then, from the very
beginning, he was not at all moved by good faith and an honest motive. Marrying with
a woman so circumstances could not have even remotely occurred to him. Thus, his
profession of love and promise to marry were empty words directly intended to fool,
dupe, entice, beguile and deceive the poor woman into believing that indeed, he
loved her and would want her to be his life's partner. His was nothing but pure lust
which he wanted satisfied by a Filipina who honestly believed that by accepting his
proffer of love and proposal of marriage, she would be able to enjoy a life of ease and
security. Petitioner clearly violated the Filipino's concept of morality and brazenly
defied the traditional respect Filipinos have for their women. It can even be said that
the petitioner committed such deplorable acts in blatant disregard of Article 19 of the
Civil Code which directs every person to act with justice, give everyone his due and
observe honesty and good faith in the exercise of his rights and in the performance of
his obligations.

Senator Arturo M. Tolentino 29 is also of the same persuasion:

It is submitted that the rule in Batarra vs. Marcos, 30 still subsists,
notwithstanding the incorporation of the present article 31 in the
Code. The example given by the Code Commission is correct, if
there was seduction, not necessarily in the legal sense, but in the
vulgar sense of deception. But when the sexual act is accomplished
without any deceit or qualifying circumstance of abuse of authority
or influence, but the woman, already of age, has knowingly given
herself to a man, it cannot be said that there is an injury which can
be the basis for indemnity.
But so long as there is fraud, which is characterized by willfulness
(sic), the action lies. The court, however, must weigh the degree of
fraud, if it is sufficient to deceive the woman under the

77

DAMAGE TO PROPERTY

No foreigner must be allowed to make a mockery of our laws, customs and traditions.

Republic of the Philippines

SUPREME COURT
Manila

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

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

PORFIRIO P. CINCO, petitioner-appellant,

vs.
HON. MATEO CANONOY, Presiding Judge of the Third Branch of the Court

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

of First Instance of Cebu, HON. LORENZO B. BARRIA City Judge of Mandaue

City, Second Branch ROMEO HILOT, VALERIANA PEPITO and CARLOS
PEPITO, respondents-appellees.
Eriberto Seno for appellant.

In Mangayao vs. Lasud, 37 We declared:

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

MELENCIO-HERRERA, J.:
This is a Petition for Review on certiorari of the Decision of the Court of First Instance
of Cebu rendered on November 5, 1970.

We should stress, however, that while We find for the private respondent, let it not be
said that this Court condones the deplorable behavior of her parents in letting her and
the petitioner stay together in the same room in their house after giving approval to
their marriage. It is the solemn duty of parents to protect the honor of their daughters
and infuse upon them the higher values of morality and dignity.

The background facts to the controversy may be set forth as follows:

Petitioner herein filed, on February 25, 1970, a Complaint in the City Court of
Mandaue City, Cebu, Branch II, for the recovery of damages on account of a
vehicular accident involving his automobile and a jeepney driven by Romeo Hilot and
operated by Valeriana Pepito and Carlos Pepito, the last three being the private
respondents in this suit. Subsequent thereto, a criminal case was filed against the
driver, Romeo Hilot, arising from the same accident. At the pre-trial in the civil case,
counsel for private respondents moved to suspend the civil action pending the final
determination of the criminal suit, invoking Rule 111, Section 3 (b) of the Rules of
Court, which provides:

WHEREFORE, finding no reversible error in the challenged decision, the instant

petition is hereby DENIED, with costs against the petitioner.
SO ORDERED.

78

(b) After a criminal action has been commenced. no civil action

arising from the same offense can be prosecuted, and the same
shall be suspended, in whatever stage it may be found, until final
judgment in the criminal proceeding has been rendered;

3. THAT THE COURT ERRED IN HOLDING THAT THE PETITION

FOR certiorari IS NOT PROPER, BECAUSE THE RESOLUTION
IN QUESTION IS INTERLOCUTORY.
4. THAT THE COURT ERRED IN HOLDING THAT THE PETITION
IS DEFECTIVE. 4

The City Court of Mandaue City in an Order dated August 11, 1970, ordered the
suspension of the civil case. Petitioner's Motion for Reconsideration thereof, having
been denied on August 25, 1970, 1 petitioner elevated the matter on certiorari to the
Court of First Instance of Cebu, respondent Judge presiding, on September 11, 1970,
alleging that the City Judge had acted with grave abuse of discretion in suspending
the civil action for being contrary to law and jurisprudence. 2

all of which can be synthesized into one decisive issue: whether or not there can be
an independent civil action for damage to property during the pendency of the
criminal action.
From the Complaint filed by petitioner before the City Court of Mandaue City, Cebu, it
is evident that the nature and character of his action was quasi-delictual predicated
principally on Articles 2176 and 2180 of the Civil Code, which provide:

On November 5, 1970, respondent Judge dismissed the Petition for certiorari on the
ground that there was no grave abuse of discretion on the part of the City Court in
suspending the civil action inasmuch as damage to property is not one of the
instances when an independent civil action is proper; that petitioner has another plain,
speedy, and adequate remedy under the law, which is to submit his claim for
damages in the criminal case; that the resolution of the City Court is interlocutory and,
therefore, certiorari is improper; and that the Petition is defective inasmuch as what
petitioner actually desires is a Writ of mandamus (Annex "R"). Petitioner's Motion for
Reconsideration was denied by respondent Judge in an Order dated November
14,1970 (Annex "S" and Annex "U").

Art. 2176. Whoever by act or omission causes damage to another,

there being fault or negligence is obliged to pay for the damage
done. Such fault or negligence, if there is no pre-existing
contractual relation between the parties, is caned a quasi-delict and
is governed by the provisions of this Chapter. (1902a)
Art. 2180. The obligation imposed by article 2176 is demandable
not only for one's own acts or omissions but also for those of
persons for whom one is responsible.

Hence, this Petition for Review before this Tribunal, to which we gave due course on
February 25, 1971. 3

xxx xxx xxx

Petitioner makes these:

Employers shall be liable for the damages cause by their

employees and household helpers acting within the scope of their
assigned tasks, even though the former are not engaged in any
business or industry.

ASSIGNMENTS OF ERROR
1. THE TRIAL COURT, RESPONDENT JUDGE MATEO
CANONOY, ERRED IN HOLDING THAT THE TRIAL OF THE CIVIL
CASE NO. 189 FILED IN THE CITY COURT OF MANDAUE
SHOULD BE SUSPENDED UNTIL AFTER A FINAL JUDGMENT IS
RENDERED IN THE CRIMINAL CASE.

xxx xxx xxx

The responsibility treated of in this article shall cease when the
persons herein mentioned prove that they observed all the
diligence of a good father of a family to prevent damage. (1903a)

2. THAT THE COURT ERRED IN HOLDING THAT IN ORDER TO

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

Thus, plaintiff made the essential averments that it was the fault or negligence of the
driver, Romeo Hilot, in the operation of the jeepney owned by the Pepitos which
caused the collision between his automobile and said jeepney; that damages were

79

sustained by petitioner because of the collision; that there was a direct causal
connection between the damages he suffered and the fault and negligence of private
respondents.

Secondly, to find the accused guilty in a criminal case, proof of guilt

beyond reasonable doubt is required, while in a civil case,
preponderance of evidence is sufficient to make the defendant pay
in damages. There are numerous cases of criminal negligence
which cannot be shown beyond reasonable doubt, but can be
proved by a preponderance of evidence. In such cases, the
defendant can and should be made responsible in a civil action
under articles 1902 to 1910 of the Civil Code, otherwise, there
would be many instances of unvindicated civil wrongs. Ubi jus ibi
remedium.

Similarly, in the Answer, private respondents contended, among others, that

defendant, Valeriana Pepito, observed due diligence in the selection and supervision
of her employees, particularly of her co-defendant Romeo Hilot, a defense peculiar to
actions based on quasi-delict. 5
Liability being predicated on quasi-delict the civil case may proceed as a separate
and independent civil action, as specifically provided for in Article 2177 of the Civil
Code.

Thirdly, to hold that there is only one way to make defendants

liability effective, and that is, to sue the driver and exhaust his (the
latter's) property first, would be tantamount to compelling the
plaintiff to follow a devious and cumbersome method of obtaining a
reliel True, there is such a remedy under our laws, but there is also
a more expeditious way, which is based on the primary and direct
responsibility of the defendant under article 1903 of the Civil Code.
Our view of the law is more likely to facilitate remedy for civil
wrongs because the procedure indicated by the defendant is
wasteful and productive of delay, it being a matter of common
knowledge that professional drivers of taxis and similar public
conveyances usually do not have sufficient means with which to
pay damages. Why, then, should the plaintiff be required in all
cases to go through this round-about, unnecessary, and probably
useless procedure? In construing the laws, courts have endeavored
to shorten and facilitate the pathways of right and justice.

Art. 2177. Responsibility for fault or negligence under the preceding

article is entirely separate and distinct from the civil liability arising
from negligence under the Penal Code. But the plaintiff cannot
recover damages twice for the same act or omission of the
defendant. (n)
The crucial distinction between criminal negligence and quasidelict, which is readily discernible from the foregoing codal
provision, has been expounded in Barredo vs. Garcia, et al., 73
Phil. 607, 620-621, 6 thus:
Firstly, the Revised Penal Code in article 365 punishes not only
reckless but also simple imprudence. if we were to hold that articles
1902 to 1910 of the Civil Code refer only to fault or negligence not
punished by law, according to the literal import of article 1093 of the
Civil Code, the legal institution ofculpa aquiliana would have very
little scope and application in actual life. Death or injury to
personsand damage to property through any degree of negligence
even the slightest would have to be indemnified only through the
principle of civil hability arising from crime. In such a state of affairs,
what sphere would remain for quasidelito or culpa aquiliana We are
loath to impute to the lawmaker any intention to bring about a
situation so absurd and anomalous. Nor are we, in the
interpretation of the laws, disposed to uphold the letter that killeth
rather than the spirit that giveth life. We will not use the literal
meaning of the law to smother and render almost lifeless a principle
of such ancient origin and such full-grown development as culpa
aquiliana or quasi-delito, which is conserved and made enduring in
articles 1902 to 11910 of the Spanish Civil Code.

80

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

responsibility of employers and their presumed negligence are
principles calculated to protect society. Workmen and employees
should be carefully chosen and supervised in order to avoid injury
to the public. It is the masters or employers who principally reap the
profits resulting from the services of these servants and employees.
It is but right that they should guarantee the latter's careful conduct
for the personnel and patrimonial safety of others. As Theilhard has
said, "they should reproach themselves, at least, some for their
weakness, others for their poor selection and all for their
negligence." And according to Manresa, "It is much more equitable
and just that such responsibility should fail upon the principal or
director who could have chosen a careful and prudent employee,
and not upon the such employee because of his confidence in the
principal or director." (Vol. 12, p. 622, 2nd Ed.) Many jurists also

base this primary responsibility of the employer on the principle of

representation of the principal by the agent. Thus, Oyuelos says in
the work already cited (Vol. 7, p. 747) that before third persons the
employer and employee vienen a ser como una sola personalidad,
por refundicion de la del dependiente en la de quien la emplea y
utihza (become as one personality by the merging of the person of
the employee in that of him who employs and utilizes him.) All these
observations acquire a peculiar force and significance when it
comes to motor accidents, and there is need of stressing and
accentuating the responsibility of owners of motor vehicles.

Sec. 2. Independent civil action. In the cases provided for in

Articles 31, 32, 33, 34 and 2177 of the Civil Code of the Philippines,
Are independent civil action entirely separate and distinct from the c
action, may be brought by the injured party during the pendency of
the criminal case, provided the right is reserved as required in the
preceding section. Such civil action shag proceed independently of
the criminal prosecution, and shall require only a preponderance of
evidence.
Significant to note is the fact that the foregoing section categorically lists cases
provided for in Article 2177 of the Civil Code, supra, as allowing of an "independent
civil action."

Fourthly, because of the broad sweep of the provisions of both the

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

Tested by the hereinabove-quoted legal tenets, it has to be held that the City Court, in
surrounding the civil action, erred in placing reliance on section 3 (b) of Rule 111 of
the Rules of Court, supra which refers to "other civil actions arising from cases not
included in the section just cited" (i.e., Section 2, Rule 111 above quoted), in which
case 6 once the criminal action has being commenced, no civil action arising from the
same offense can be prosecuted and the same shall be suspended in whatever stage
it may be found, until final judgment in the criminal proceeding has been rendered."
Stated otherwise, the civil action referred to in Secs. 3(a) and 3(b) of Rule 111 of the
Rules of Court, which should be suspended after the criminal action has been
instituted is that arising from the criminal offense not the civil action based on quasidelict
Article 31 of the Civil Code then clearly assumes relevance when it provides:
Art. 31. When the civil action is based on an obligation not arising
from the act or omission complained of as a felony, such civil action
may proceed independently of the criminal proceedings and
regardless of the result of the latter.
For obviously, the jural concept of a quasi-delict is that of an independent source of
obligation "not arising from the act or omission complained of as a felony." Article
1157 of the Civil Code bolsters this conclusion when it specifically recognizes that:
Art. 1157. Obligations arise from:

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

(1) Law;
(2) Contracts;

81

(3) Quasi-contracts;
(4) Acts or omissions punished by law; and
(5) Quasi-delicts. (1089a)

DISTINGUISHING DELICT AND QUASIDELICT

(Emphasis supplied)

SUPRA CASE: BARREDO VS GARCIA, JULY 8, 1942

It bears emphasizing that petitioner's cause of action is based on quasi-delict. The

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

OVERLAP BETWEEN DELICT AND QUASIDELICT

SUPRA CASES: BARREDO VS GARCIA
ELCANO VS HILL
ANDAMO VS IAC
SECOND DIVISION

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

LG FOODS CORP VS HON. PHILADELFA

L.G.
FOODS
CORPORATION
and
VICTORINO GABOR, Vice-President and
General Manager,

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

G.R. No. 158995

Present:

Petitioners,
PUNO, J., Chairperson,
- versus -

SANDOVAL-GUTIERREZ,

Without pronouncement as to costs.

CORONA,
SO ORDERED.

HON.
PHILADELFA
B.
PAGAPONGAGRAVIADOR, in her capacity as Presiding
Judge of Regional Trial Court, Branch 43,
Bacolod City, and SPS. FLORENTINO and
THERESA VALLEJERA,

ELEMENTS :

Respondents.

SUPRA CASE: REFER TO ANDAMO VS IAC, NOVEMBER 6, 1990

82

AZCUNA, and
GARCIA, JJ.

Promulgated:

exercise due diligence in the selection and supervision of their employees.

Thereat docketed as Civil Case No. 99-10845, the complaint was raffled to
Branch 43 of the court.

September 26, 2006

In their Answer with Compulsory Counterclaim,[4] the petitioners as

defendants denied liability for the death of the Vallejeras 7-year old son,
claiming that they had exercised the required due diligence in the selection
and supervision of their employees, including the deceased driver. They
thus prayed in their Answer for the dismissal of the complaint for lack of
cause of action on the part of the Vallejera couple.
During pre-trial, the defendant petitioners insisted that their dismissal
prayer be resolved. Hence, the trial court required them to file within ten
days a memorandum of authorities supportive of their position.

x------------------------------------------------------------------------------------x

DECISION

GARCIA, J.:

Instead, however, of the required memorandum of authorities, the

defendant petitioners filed a Motion to Dismiss, principally arguing that the
complaint is basically a claim for subsidiary liability against an employer
under the provision of Article 103 [5] of the Revised Penal Code. Prescinding
therefrom, they contend that there must first be a judgment of conviction
against their driver as a condition sine qua non to hold them
liable. Ergo, since the driver died during the pendency of the criminal
action, the sine qua non condition for their subsidiary liability was not
fulfilled, hence the of lack of cause of action on the part of the plaintiffs.
They further argue that since the plaintiffs did not make a reservation to
institute a separate action for damages when the criminal case was filed,
the damage suit in question is thereby deemed instituted with the criminal
action. which was already dismissed.
In an Order dated September 4, 2001,[6] the trial court denied the motion to
dismiss for lack of merit and set the case for pre-trial. With their motion for
reconsideration having been denied by the same court in its subsequent
order[7] of September 26, 2001, the petitioners then went on certiorari to
the CA in CA-G.R. SP No. 67600, imputing grave abuse of discretion on the
part of the trial judge in refusing to dismiss the basic complaint for
damages in Civil Case No. 99-10845.
In the herein assailed decision [8] dated April 25, 2003, the CA denied the
petition and upheld the trial court. Partly says the CA in its challenged
issuance:
xxx xxx xxx
It is clear that the complaint neither represents nor
implies that the responsibility charged was the petitioners
subsidiary liability under Art. 103, Revised Penal Code. As

Assailed and sought to be set aside in this petition for review

on certiorari is the Decision[1] dated April 25, 2003 of the Court of Appeals
(CA), as reiterated in its Resolution of July 10, 2003, [2] in CA-G.R. SP No.
67600, affirming an earlier Order of the Regional Trial Court (RTC) of
Bacolod City, Branch 43, which denied the petitioners motion to dismiss in
Civil Case No. 99-10845, an action for damages arising from a vehicular
accident thereat instituted by the herein private respondents - the spouses
Florentino Vallejera and Theresa Vallejera - against the petitioners.
The antecedent facts may be briefly stated as follows:
On February 26, 1996, Charles Vallereja, a 7-year old son of the spouses
Florentino Vallejera and Theresa Vallejera, was hit by a Ford Fiera van
owned by the petitioners and driven at the time by their employee, Vincent
Norman Yeneza y Ferrer. Charles died as a result of the accident.
In time, an Information for Reckless Imprudence Resulting to Homicide was
filed against the driver before the Municipal Trial Court in Cities
(MTCC), Bacolod City,
docketed
as
Criminal
Case
No.
67787,
entitled People of the Philippines v. Vincent Norman Yeneza.
Unfortunately, before the trial could be concluded, the accused driver
committed suicide, evidently bothered by conscience and remorse. On
account thereof, the MTCC, in its order of September 30, 1998, dismissed
the criminal case.
On June 23, 1999, in the RTC of Bacolod City, the spouses Vallejera filed a
complaint[3] for damages against the petitioners as employers of the
deceased driver, basically alleging that as such employers, they failed to

83

pointed out [by the trial court] in the Order of September 4,

2001, the complaint does not even allege the basic
elements for such a liability, like the conviction of the
accused employee and his insolvency. Truly enough, a civil
action to enforce subsidiary liability separate and distinct
from the criminal action is even unnecessary.
xxx xxx xxx
Specifically, Civil Case No. 99-10845 exacts
responsibility for fault or negligence under Art. 2176, Civil
Code, which is entirely separate and distinct from the civil
liability arising from negligence under the Revised Penal
Code. Verily, therefore, the liability under Art. 2180, Civil
Code, is direct and immediate, and not conditioned upon
prior recourse against the negligent employee or prior
showing of the latters insolvency. (Underscoring in the
original.)
In time, the petitioners moved for a reconsideration but their
motion was denied by the CA in its resolution [9] of July 10, 2003. Hence, the
petitioners present recourse on their submission that the appellate court
committed reversible error in upholding the trial courts denial of their
motion to dismiss.
We DENY.
As the Court sees it, the sole issue for resolution is whether the
spouses Vallejeras cause of action in Civil Case No. 99-10845 is founded on
Article 103 of the Revised Penal Code, as maintained by the petitioners, or
derived from Article 2180[10] of the Civil Code, as ruled by the two courts
below.
It thus behooves us to examine the allegations of the complaint for
damages in Civil Case No. 99-10845. That complaint alleged, inter alia, as
follows:

5. That the mishap was due to the gross fault and

negligence of defendants employee, who drove said
vehicle, recklessly, negligently and at a high speed without
regard to traffic condition and safety of other road users
and likewise to the fault and negligence of the owner
employer, herein defendants LG Food Corporation who
failed to exercise due diligence in the selection and
supervision of his employee, Vincent Norman Yeneza y
Ferrer;
6. That as a result of said incident, plaintiffs son suffered
multiple body injuries which led to his untimely demise on
that very day;
7. That a criminal case was filed against the defendants
employee, docketed as Criminal Case No. 67787, (earlier
filed as Crim. Case No. 96-17570 before RTC) before MTCBranch III, entitled People v. Yeneza for Reckless
Imprudence resulting to Homicide, but the same was
dismissed because pending litigation, then remorsestricken [accused] committed suicide;
xxx xxx xxx
8. That the injuries and complications as well as the
resultant death suffered by the late minor Charles Vallejera
were due to the negligence and imprudence of defendants
employee;
9. That defendant LG Foods Corporation is civilly
liable for the negligence/imprudence of its employee
since it failed to exercise the necessary diligence
required of a good father of the family in the
selection and supervision of his employee, Vincent
Norman Yeneza y Ferrer which diligence if exercised,
would have prevented said incident. (Bracketed words
and emphasis ours.)
Nothing in the foregoing allegations suggests, even remotely, that the
herein petitioners are being made to account for their subsidiary liability
under Article 103 of the Revised Penal Code. As correctly pointed out by
the trial court in its order of September 4, 2001 denying the
petitioners Motion to Dismiss, the complaint did not even aver the basic
elements for the subsidiary liability of an employer under Article 103 of the
Revised Penal Code, such as the prior conviction of the driver in the
criminal case filed against him nor his insolvency.

xxx xxx xxx

3. That defendant [LG Food Corporation] is the registered
owner of a Ford Fiera Van with Plate No. NMS 881 and
employer sometime February of 1996 of one Vincent
Norman Yeneza y Ferrer, a salesman of said corporation;
4. That sometime February 26, 1996 at around 2:00
P.M. at Rosario St., Bacolod City, the minor son of said
plaintiffs [now respondents], Charles Vallejera, 7 years old,
was hit and bumped by above-described vehicle then
driven by said employee, Vincent Norman Yeneza y Ferrer;

84

Admittedly, the complaint did not explicitly state that plaintiff

Vallejeras were suing the defendant petitioners for damages based
on quasi-delict. Clear it is, however, from the allegations of the complaint
that quasi-delict was their choice of remedy against the petitioners. To
stress, the plaintiff spouses alleged in their complaint gross fault and
negligence on the part of the driver and the failure of the petitioners, as
employers, to exercise due diligence in the selection and supervision of
their employees. The spouses further alleged that the petitioners are civilly
liable for the negligence/imprudence of their driver since they failed to
exercise the necessary diligence required of a good father of the family in
the selection and supervision of their employees, which diligence, if
exercised, could have prevented the vehicular accident that resulted to the
death of their 7-year old son.
Section 2, Rule 2, of the 1997 Rules of Civil Procedure defines cause of
action as the act or omission by which a party violates the right of
another. Such act or omission gives rise to an obligation which may come
from law, contracts, quasi contracts, delicts or quasi-delicts.[11]

arising indirectly from the delict/crime or directly from quasi-delict/tort. The

choice is with the plaintiff who makes known his cause of action in his
initiatory pleading or complaint, [21] and not with the defendant who can not
ask for the dismissal of the plaintiffs cause of action or lack of it based on
the defendants perception that the plaintiff should have opted to file a
claim under Article 103 of the Revised Penal Code.
Under Article 2180 of the Civil Code, the liability of the employer is direct
or immediate. It is not conditioned upon prior recourse against the
negligent employee and a prior showing of insolvency of such employee. [22]
Here, the complaint sufficiently alleged that the death of the couples
minor son was caused by the negligent act of the petitioners driver; and
that the petitioners themselves were civilly liable for the negligence of
their driver for failing to exercise the necessary diligence required of a
good father of the family in the selection and supervision of [their]
employee, the driver, which diligence, if exercised, would have prevented
said accident.
Had the respondent spouses elected to sue the petitioners based on
Article 103 of the Revised Penal
Code, they would have
alleged
that
the guilt of the driver had been proven beyond reasonable doubt; that such
accused driver is insolvent; that it is the subsidiary liability of the
defendant petitioners as employers to pay for the damage done by their
employee (driver) based on the principle that every person criminally liable
is also civilly liable.[23] Since there was no conviction in the criminal case
against the driver, precisely because death intervened prior to the
termination of the criminal proceedings, the spouses recourse was,
therefore, to sue the petitioners for their direct and primary liability based
on quasi-delict.
Besides, it is worthy to note that the petitioners, in their Answer with
Compulsory Counter-Claim,[24] repeatedly made mention of Article 2180 of
the Civil Code and anchored their defense on their allegation that they had
exercised due diligence in the selection and supervision of [their]
employees. The Court views this defense as an admission that indeed the
petitioners acknowledged the private respondents cause of action as one
for quasi-delict under Article 2180 of the Civil Code.
All told, Civil Case No. 99-10845 is a negligence suit brought under Article
2176 - Civil Code to recover damages primarily from the petitioners as
employers responsible for their negligent driver pursuant to Article 2180 of
the Civil Code. The obligation imposed by Article 2176 is demandable not
only for ones own acts or omissions, but also for those of persons for whom
one is responsible. Thus, the employer is liable for damages caused by his

Corollarily, an act or omission causing damage to another may give rise to

two separate civil liabilities on the part of the offender, i.e., 1) civil
liability ex delicto;[12] and 2) independent civil liabilities, such as those (a)
not arising from an act or omission complained of as felony (e.g., culpa
contractual or obligations arising from law; [13] the intentional torts;
[14]
and culpa aquiliana[15]); or (b) where the injured party is granted a right
to file an action independent and distinct from the criminal action. [16] Either
of these two possible liabilities may be enforced against the offender. [17]
Stated otherwise, victims of negligence or their heirs have a choice
between an action to enforce the civil liability arising from culpa
criminal under Article 100 of the Revised Penal Code, and an action
for quasi-delict (culpa aquiliana) under Articles 2176 to 2194 of the Civil
Code. If, as here, the action chosen is for quasi-delict, the plaintiff may
hold the employer liable for the negligent act of its employee, subject to
the employers defense of exercise of the diligence of a good father of the
family. On the other hand, if the action chosen is for culpa criminal, the
plaintiff can hold the employer subsidiarily liable only upon proof of prior
conviction of its employee.[18]
Article 1161[19] of the Civil Code provides that civil obligation arising from
criminal offenses shall be governed by penal laws subject to the provision
of Article 2177[20] and of the pertinent provision of Chapter 2, Preliminary
Title on Human Relation, and of Title XVIII of this Book, regulating
damages. Plainly, Article 2177 provides for the alternative remedies the
plaintiff may choose from in case the obligation has the possibility of

85

BURDEN OF PROOF

employees and household helpers acting within the scope of their assigned
tasks, even though the former is not engaged in any business or industry.

SUPRA: CANGCO VS MANILA RAILROAD

Citing Maniago v. CA,[25] petitioner would argue that Civil Case No. 9910845 should have been dismissed for failure of the respondent spouses to
make a reservation to institute a separate civil action for damages when
the criminal case against the driver was filed.
The argument is specious.
To start with, the petitioners reliance on Maniago is obviously misplaced.
There, the civil case was filed while the criminal case against the employee
was still pending. Here, the criminal case against the employee driver was
prematurely terminated due to his death. Precisely, Civil Case No. 9910845 was filed by the respondent spouses because no remedy can be
obtained by them against the petitioners with the dismissal of the criminal
case against their driver during the pendency thereof.
The circumstance that no reservation to institute a separate civil action for
damages was made when the criminal case was filed is of no moment for
the simple reason that the criminal case was dismissed without any
pronouncement having been made therein. In reality, therefor, it is as if
there was no criminal case to speak of in the first place. And for the
petitioners to insist for the conviction of their driver as a condition sine qua
non to hold them liable for damages is to ask for the impossible.
IN VIEW WHEREOF, the instant petition is DENIED for lack of merit.
Costs against the petitioners.

Republic of the Philippines

SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 141910

August 6, 2002

FGU INSURANCE CORPORATION, petitioner,

vs.
G.P. SARMIENTO TRUCKING CORPORATION and LAMBERT M.
EROLES, respondents.
VITUG, J.:
G.P. Sarmiento Trucking Corporation (GPS) undertook to deliver on 18 June 1994
thirty (30) units of Condura S.D. white refrigerators aboard one of its Isuzu truck,
driven by Lambert Eroles, from the plant site of Concepcion Industries, Inc., along
South Superhighway in Alabang, Metro Manila, to the Central Luzon Appliances in
Dagupan City. While the truck was traversing the north diversion road along McArthur
highway in Barangay Anupol, Bamban, Tarlac, it collided with an unidentified truck,
causing it to fall into a deep canal, resulting in damage to the cargoes.

SO ORDERED.

FGU Insurance Corporation (FGU), an insurer of the shipment, paid to Concepcion

Industries, Inc., the value of the covered cargoes in the sum of P204,450.00. FGU, in
turn, being the subrogee of the rights and interests of Concepcion Industries, Inc.,
sought reimbursement of the amount it had paid to the latter from GPS. Since the
trucking company failed to heed the claim, FGU filed a complaint for damages and
breach of contract of carriage against GPS and its driver Lambert Eroles with the
Regional Trial Court, Branch 66, of Makati City. In its answer, respondents asserted
that GPS was the exclusive hauler only of Concepcion Industries, Inc., since 1988,
and it was not so engaged in business as a common carrier. Respondents further
claimed that the cause of damage was purely accidental.1wphi1.nt

DISTINGUISHING CULPA AQUILIANA VS

CULPA CONTRACTUAL
SOURCE
SUPRA: CANGCO VS MANILA RAILROAD

The issues having thus been joined, FGU presented its evidence, establishing the
extent of damage to the cargoes and the amount it had paid to the assured. GPS,
instead of submitting its evidence, filed with leave of court a motion to dismiss the

86

The subsequent motion for reconsideration having been denied,3 plaintiff interposed
an appeal to the Court of Appeals, contending that the trial court had erred (a) in
holding that the appellee corporation was not a common carrier defined under the law
and existing jurisprudence; and (b) in dismissing the complaint on a demurrer to
evidence.

complaint by way of demurrer to evidence on the ground that petitioner had failed to
prove that it was a common carrier.
The trial court, in its order of 30 April 1996, 1 granted the motion to dismiss, explaining
thusly:

The Court of Appeals rejected the appeal of petitioner and ruled in favor of GPS. The
appellate court, in its decision of 10 June 1999, 4 discoursed, among other things, that
-

"Under Section 1 of Rule 131 of the Rules of Court, it is provided that Each
party must prove his own affirmative allegation, xxx.
"In the instant case, plaintiff did not present any single evidence that would
prove that defendant is a common carrier.
"x x x

xxx

"x x x in order for the presumption of negligence provided for under the law
governing common carrier (Article 1735, Civil Code) to arise, the appellant
must first prove that the appellee is a common carrier. Should the appellant
fail to prove that the appellee is a common carrier, the presumption would
not arise; consequently, the appellant would have to prove that the carrier
was negligent.

xxx

"Accordingly, the application of the law on common carriers is not warranted

and the presumption of fault or negligence on the part of a common carrier in
case of loss, damage or deterioration of goods during transport under 1735
of the Civil Code is not availing.

"x x x

xxx

xxx

"Because it is the appellant who insists that the appellees can still be
considered as a common carrier, despite its `limited clientele, (assuming it
was really a common carrier), it follows that it (appellant) has the burden of
proving the same. It (plaintiff-appellant) `must establish his case by a
preponderance of evidence, which means that the evidence as a whole
adduced by one side is superior to that of the other. (Summa Insurance
Corporation vs. Court of Appeals, 243 SCRA 175). This, unfortunately, the
appellant failed to do -- hence, the dismissal of the plaintiffs complaint by
the trial court is justified.

"Thus, the laws governing the contract between the owner of the cargo to
whom the plaintiff was subrogated and the owner of the vehicle which
transports the cargo are the laws on obligation and contract of the Civil Code
as well as the law on quasi delicts.
"Under the law on obligation and contract, negligence or fault is not
presumed. The law on quasi delict provides for some presumption of
negligence but only upon the attendance of some circumstances. Thus,
Article 2185 provides:

"x x x

Art. 2185. Unless there is proof to the contrary, it is presumed that

a person driving a motor vehicle has been negligent if at the time of
the mishap, he was violating any traffic regulation.

xxx

xxx

"Based on the foregoing disquisitions and considering the circumstances

that the appellee trucking corporation has been `its exclusive contractor,
hauler since 1970, defendant has no choice but to comply with the directive
of its principal, the inevitable conclusion is that the appellee is a private
carrier.

"Evidence for the plaintiff shows no proof that defendant was violating any
traffic regulation. Hence, the presumption of negligence is not obtaining.
"Considering that plaintiff failed to adduce evidence that defendant is a
common carrier and defendants driver was the one negligent, defendant
cannot be made liable for the damages of the subject cargoes."2

"x x x

xxx

xxx

"x x x the lower court correctly ruled that 'the application of the law on
common carriers is not warranted and the presumption of fault or negligence

87

on the part of a common carrier in case of loss, damage or deterioration of

good[s] during transport under [article] 1735 of the Civil Code is not availing.'
x x x.

The above conclusion nothwithstanding, GPS cannot escape from liability.

In culpa contractual, upon which the action of petitioner rests as being the subrogee
of Concepcion Industries, Inc., the mere proof of the existence of the contract and the
failure of its compliance justify, prima facie, a corresponding right of relief.11 The law,
recognizing the obligatory force of contracts,12 will not permit a party to be set free
from liability for any kind of misperformance of the contractual undertaking or a
contravention of the tenor thereof.13 A breach upon the contract confers upon the
injured party a valid cause for recovering that which may have been lost or suffered.
The remedy serves to preserve the interests of the promisee that may include his
"expectation interest," which is his interest in having the benefit of his bargain by
being put in as good a position as he would have been in had the contract been
performed, or his "reliance interest," which is his interest in being reimbursed for loss
caused by reliance on the contract by being put in as good a position as he would
have been in had the contract not been made; or his "restitution interest," which is his
interest in having restored to him any benefit that he has conferred on the other
party.14 Indeed, agreements can accomplish little, either for their makers or for society,
unless they are made the basis for action.15 The effect of every infraction is to create
a new duty, that is, to make recompense to the one who has been injured by the
failure of another to observe his contractual obligation 16 unless he can show
extenuating circumstances, like proof of his exercise of due diligence (normally that of
the diligence of a good father of a family or, exceptionally by stipulation or by law such
as in the case of common carriers, that of extraordinary diligence) or of the
attendance of fortuitous event, to excuse him from his ensuing liability.

"Finally, We advert to the long established rule that conclusions and findings
of fact of a trial court are entitled to great weight on appeal and should not
be disturbed unless for strong and valid reasons."5
Petitioner's motion for reconsideration was likewise denied;6 hence, the instant
petition,7 raising the following issues:
I
WHETHER RESPONDENT GPS MAY BE CONSIDERED AS A COMMON
CARRIER AS DEFINED UNDER THE LAW AND EXISTING
JURISPRUDENCE.
II
WHETHER RESPONDENT GPS, EITHER AS A COMMON CARRIER OR A
PRIVATE CARRIER, MAY BE PRESUMED TO HAVE BEEN NEGLIGENT
WHEN THE GOODS IT UNDERTOOK TO TRANSPORT SAFELY WERE
SUBSEQUENTLY DAMAGED WHILE IN ITS PROTECTIVE CUSTODY
AND POSSESSION.

Respondent trucking corporation recognizes the existence of a contract of carriage

between it and petitioners assured, and admits that the cargoes it has assumed to
deliver have been lost or damaged while in its custody. In such a situation, a default
on, or failure of compliance with, the obligation in this case, the delivery of the
goods in its custody to the place of destination - gives rise to a presumption of lack of
care and corresponding liability on the part of the contractual obligor the burden being
on him to establish otherwise. GPS has failed to do so.

III
WHETHER THE DOCTRINE OF RES IPSA LOQUITUR IS APPLICABLE IN
THE INSTANT CASE.
On the first issue, the Court finds the conclusion of the trial court and the Court of
Appeals to be amply justified. GPS, being an exclusive contractor and hauler of
Concepcion Industries, Inc., rendering or offering its services to no other individual or
entity, cannot be considered a common carrier. Common carriers are persons,
corporations, firms or associations engaged in the business of carrying or transporting
passengers or goods or both, by land, water, or air, for hire or compensation, offering
their services to the public,8 whether to the public in general or to a limited clientele in
particular, but never on an exclusive basis.9 The true test of a common carrier is the
carriage of passengers or goods, providing space for those who opt to avail
themselves of its transportation service for a fee. 10 Given accepted standards, GPS
scarcely falls within the term "common carrier."

Respondent driver, on the other hand, without concrete proof of his negligence or
fault, may not himself be ordered to pay petitioner. The driver, not being a party to the
contract of carriage between petitioners principal and defendant, may not be held
liable under the agreement. A contract can only bind the parties who have entered
into it or their successors who have assumed their personality or their juridical
position.17 Consonantly with the axiom res inter alios acta aliis neque nocet prodest,
such contract can neither favor nor prejudice a third person. Petitioners civil action
against the driver can only be based on culpa aquiliana, which, unlike culpa

88

contractual, would require the claimant for damages to prove negligence or fault on
the part of the defendant.18

WHEREFORE, the order, dated 30 April 1996, of the Regional Trial Court, Branch 66,
of Makati City, and the decision, dated 10 June 1999, of the Court of Appeals,
are AFFIRMED only insofar as respondent Lambert M. Eroles is concerned, but said
assailed order of the trial court and decision of the appellate court are REVERSEDas
regards G.P. Sarmiento Trucking Corporation which, instead, is hereby ordered to pay
FGU Insurance Corporation the value of the damaged and lost cargoes in the amount
of P204,450.00. No costs.

A word in passing. Res ipsa loquitur, a doctrine being invoked by petitioner, holds a
defendant liable where the thing which caused the injury complained of is shown to
be under the latters management and the accident is such that, in the ordinary
course of things, cannot be expected to happen if those who have its management or
control use proper care. It affords reasonable evidence, in the absence of explanation
by the defendant, that the accident arose from want of care. 19 It is not a rule of
substantive law and, as such, it does not create an independent ground of liability.
Instead, it is regarded as a mode of proof, or a mere procedural convenience since it
furnishes a substitute for, and relieves the plaintiff of, the burden of producing specific
proof of negligence. The maxim simply places on the defendant the burden of going
forward with the proof.20 Resort to the doctrine, however, may be allowed only when
(a) the event is of a kind which does not ordinarily occur in the absence of negligence;
(b) other responsible causes, including the conduct of the plaintiff and third persons,
are sufficiently eliminated by the evidence; and (c) the indicated negligence is within
the scope of the defendant's duty to the plaintiff.21 Thus, it is not applicable when an
unexplained accident may be attributable to one of several causes, for some of which
the defendant could not be responsible.22

SO ORDERED.

APPLICABILITY OF DOCTRINE OF
APPROXIMATE CAUSE
Republic of the Philippines
SUPREME COURT
Manila

Res ipsa loquitur generally finds relevance whether or not a contractual relationship
exists between the plaintiff and the defendant, for the inference of negligence arises
from the circumstances and nature of the occurrence and not from the nature of the
relation of the parties.23 Nevertheless, the requirement that responsible causes other
than those due to defendants conduct must first be eliminated, for the doctrine to
apply, should be understood as being confined only to cases of pure (non-contractual)
tort since obviously the presumption of negligence in culpa contractual, as previously
so pointed out, immediately attaches by a failure of the covenant or its tenor. In the
case of the truck driver, whose liability in a civil action is predicated on culpa
acquiliana, while he admittedly can be said to have been in control and management
of the vehicle which figured in the accident, it is not equally shown, however, that the
accident could have been exclusively due to his negligence, a matter that can allow,
forthwith, res ipsa loquitur to work against him.

SECOND DIVISION

G.R. No. 122039 May 31, 2000

VICENTE CALALAS, petitioner,

vs.
COURT OF APPEALS, ELIZA JUJEURCHE SUNGA and FRANCISCO
SALVA, respondents.

If a demurrer to evidence is granted but on appeal the order of dismissal is reversed,

the movant shall be deemed to have waived the right to present evidence.24 Thus,
respondent corporation may no longer offer proof to establish that it has exercised
due care in transporting the cargoes of the assured so as to still warrant a remand of
the case to the trial court.1wphi1.nt

MENDOZA, J.:
This is a petition for review on certiorari of the decision1 of the Court of Appeals, dated
March 31, 1991, reversing the contrary decision of the Regional Trial Court, Branch
36, Dumaguete City, and awarding damages instead to private respondent Eliza
Jujeurche Sunga as plaintiff in an action for breach of contract of carriage.

89

The facts, as found by the Court of Appeals, are as follows:

(2) P50,000.00 as moral damages;

At 10 o'clock in the morning of August 23, 1989, private respondent Eliza Jujeurche
G. Sunga, then a college freshman majoring in Physical Education at the Siliman
University, took a passenger jeepney owned and operated by petitioner Vicente
Calalas. As the jeepney was filled to capacity of about 24 passengers, Sunga was
given by the conductor an "extension seat," a wooden stool at the back of the door at
the rear end of the vehicle.

(3) P10,000.00 as attorney's fees; and

On the way to Poblacion Sibulan, Negros Occidental, the jeepney stopped to let a
passenger off. As she was seated at the rear of the vehicle, Sunga gave way to the
outgoing passenger. Just as she was doing so, an Isuzu truck driven by Iglecerio
Verena and owned by Francisco Salva bumped the left rear portion of the jeepney. As
a result, Sunga was injured. She sustained a fracture of the "distal third of the left
tibia-fibula with severe necrosis of the underlying skin." Closed reduction of the
fracture, long leg circular casting, and case wedging were done under sedation. Her
confinement in the hospital lasted from August 23 to September 7, 1989. Her
attending physician, Dr. Danilo V. Oligario, an orthopedic surgeon, certified she would
remain on a cast for a period of three months and would have to ambulate in crutches
during said period.

SO ORDERED.

(4) P1,000.00 as expenses of litigation; and

(5) to pay the costs.

Hence, this petition. Petitioner contends that the ruling in Civil Case No. 3490 that the
negligence of Verena was the proximate cause of the accident negates his liability
and that to rule otherwise would be to make the common carrier an insurer of the
safety of its passengers. He contends that the bumping of the jeepney by the truck
owned by Salva was a caso fortuito. Petitioner further assails the award of moral
damages to Sunga on the ground that it is not supported by evidence.
The petition has no merit.
The argument that Sunga is bound by the ruling in Civil Case No. 3490 finding the
driver and the owner of the truck liable for quasi-delict ignores the fact that she was
never a party to that case and, therefore, the principle ofres judicata does not apply.

On October 9, 1989, Sunga filed a complaint for damages against Calalas, alleging
violation of the contract of carriage by the former in failing to exercise the diligence
required of him as a common carrier. Calalas, on the other hand, filed a third-party
complaint against Francisco Salva, the owner of the Isuzu truck.

Nor are the issues in Civil Case No. 3490 and in the present case the same. The
issue in Civil Case No. 3490 was whether Salva and his driver Verena were liable for
quasi-delict for the damage caused to petitioner's jeepney. On the other hand, the
issue in this case is whether petitioner is liable on his contract of carriage. The first,
quasi-delict, also known as culpa aquiliana or culpa extra contractual, has as its
source the negligence of the tortfeasor. The second, breach of contract or culpa
contractual, is premised upon the negligence in the performance of a contractual
obligation.

The lower court rendered judgment against Salva as third-party defendant and
absolved Calalas of liability, holding that it was the driver of the Isuzu truck who was
responsible for the accident. It took cognizance of another case (Civil Case No.
3490), filed by Calalas against Salva and Verena, for quasi-delict, in which Branch 37
of the same court held Salva and his driver Verena jointly liable to Calalas for the
damage to his jeepney.
On appeal to the Court of Appeals, the ruling of the lower court was reversed on the
ground that Sunga's cause of action was based on a contract of carriage, not quasidelict, and that the common carrier failed to exercise the diligence required under the
Civil Code. The appellate court dismissed the third-party complaint against Salva and
adjudged Calalas liable for damages to Sunga. The dispositive portion of its decision
reads:

Consequently, in quasi-delict, the negligence or fault should be clearly established

because it is the basis of the action, whereas in breach of contract, the action can be
prosecuted merely by proving the existence of the contract and the fact that the
obligor, in this case the common carrier, failed to transport his passenger safely to his
destination.2 In case of death or injuries to passengers, Art. 1756 of the Civil Code
provides that common carriers are presumed to have been at fault or to have acted
negligently unless they prove that they observed extraordinary diligence as defined in
Arts. 1733 and 1755 of the Code. This provision necessarily shifts to the common
carrier the burden of proof.

WHEREFORE, the decision appealed from is hereby REVERSED

and SET ASIDE, and another one is entered ordering defendantappellee Vicente Calalas to pay plaintiff-appellant:

There is, thus, no basis for the contention that the ruling in Civil Case No. 3490,
finding Salva and his driver Verena liable for the damage to petitioner's jeepney,
should be binding on Sunga. It is immaterial that the proximate cause of the collision
between the jeepney and the truck was the negligence of the truck driver. The

(1) P50,000.00 as actual and compensatory damages;

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doctrine of proximate cause is applicable only in actions for quasi-delict, not in actions
involving breach of contract. The doctrine is a device for imputing liability to a person
where there is no relation between him and another party. In such a case, the
obligation is created by law itself. But, where there is a pre-existing contractual
relation between the parties, it is the parties themselves who create the obligation,
and the function of the law is merely to regulate the relation thus created. Insofar as
contracts of carriage are concerned, some aspects regulated by the Civil Code are
those respecting the diligence required of common carriers with regard to the safety
of passengers as well as the presumption of negligence in cases of death or injury to
passengers. It provides:

Sec. 54. Obstruction of Traffic. No person shall drive his motor

vehicle in such a manner as to obstruct or impede the passage of
any vehicle, nor, while discharging or taking on passengers or
loading or unloading freight, obstruct the free passage of other
vehicles on the highway.
Second, it is undisputed that petitioner's driver took in more passengers than the
allowed seating capacity of the jeepney, a violation of 32(a) of the same law. It
provides:
Exceeding registered capacity. No person operating any motor
vehicle shall allow more passengers or more freight or cargo in his
vehicle than its registered capacity.

Art. 1733. Common carriers, from the nature of their business and
for reasons of public policy, are bound to observe extraordinary
diligence in the vigilance over the goods and for the safety of the
passengers transported by them, according to all the circumstances
of each case.

The fact that Sunga was seated in an "extension seat" placed her in a peril greater
than that to which the other passengers were exposed. Therefore, not only was
petitioner unable to overcome the presumption of negligence imposed on him for the
injury sustained by Sunga, but also, the evidence shows he was actually negligent in
transporting passengers.

Such extraordinary diligence in the vigilance over the goods is

further expressed in articles 1734, 1735, and 1746, Nos. 5, 6, and
7, while the extraordinary diligence for the safety of the passengers
is further set forth in articles 1755 and 1756.

We find it hard to give serious thought to petitioner's contention that Sunga's taking
an "extension seat" amounted to an implied assumption of risk. It is akin to arguing
that the injuries to the many victims of the tragedies in our seas should not be
compensated merely because those passengers assumed a greater risk of drowning
by boarding an overloaded ferry. This is also true of petitioner's contention that the
jeepney being bumped while it was improperly parked constitutes caso fortuito.
A caso fortuito is an event which could not be foreseen, or which, though foreseen,
was inevitable.3 This requires that the following requirements be present: (a) the
cause of the breach is independent of the debtor's will; (b) the event is unforeseeable
or unavoidable; (c) the event is such as to render it impossible for the debtor to fulfill
his obligation in a normal manner, and (d) the debtor did not take part in causing the
injury
to
the
creditor.4 Petitioner should have foreseen the danger of parking his jeepney with its
body protruding two meters into the highway.

Art. 1755. A common carrier is bound to carry the passengers

safely as far as human care and foresight can provide, using the
utmost diligence of very cautious persons, with due regard for all
the circumstances.
Art. 1756. In case of death of or injuries to passengers, common
carriers are presumed to have been at fault or to have acted
negligently, unless they prove that they observed extraordinary
diligence as prescribed by articles 1733 and 1755.
In the case at bar, upon the happening of the accident, the presumption of negligence
at once arose, and it became the duty of petitioner to prove that he had to observe
extraordinary diligence in the care of his passengers.

Finally, petitioner challenges the award of moral damages alleging that it is excessive
and without basis in law. We find this contention well taken.

Now, did the driver of jeepney carry Sunga "safely as far as human care and foresight
could provide, using the utmost diligence of very cautious persons, with due regard
for all the circumstances" as required by Art. 1755? We do not think so. Several
factors militate against petitioner's contention.

In awarding moral damages, the Court of Appeals stated:

First, as found by the Court of Appeals, the jeepney was not properly parked, its rear
portion being exposed about two meters from the broad shoulders of the highway,
and facing the middle of the highway in a diagonal angle. This is a violation of the
R.A. No. 4136, as amended, or the Land Transportation and Traffic Code, which
provides:

91

IS THERE AN INTERSECTION?

Plaintiff-appellant at the time of the accident was a first-year college

student in that school year 1989-1990 at the Silliman University,
majoring in Physical Education. Because of the injury, she was not
able to enroll in the second semester of that school year. She
testified that she had no more intention of continuing with her
schooling, because she could not walk and decided not to pursue
her degree, major in Physical Education "because of my leg which
has a defect already."

SUPRA: CANGCO VS MANILA RAILROAD

Republic of the Philippines
SUPREME COURT
Manila
EN BANC

Plaintiff-appellant likewise testified that even while she was under

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

G.R. No. L-12163

March 4, 1959

PAZ FORES, petitioner,

vs.
IRENEO MIRANDA, respondent.

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

Alberto
O.
Villaraza
Almazan and Ereneta for respondent.

As a general rule, moral damages are not recoverable in actions for damages
predicated on a breach of contract for it is not one of the items enumerated under Art.
2219 of the Civil Code.5 As an exception, such damages are recoverable: (1) in cases
in which the mishap results in the death of a passenger, as provided in Art. 1764, in
relation to Art. 2206(3) of the Civil Code; and (2) in the cases in which the carrier is
guilty of fraud or bad faith, as provided in Art. 2220.6

for

petitioner.

REYES, J.B.L., J.:

Defendant-petitioner Paz Fores brings this petition for review of the decision of the
Court of Appeals (C.A. Case No. 1437-R) awarding to the plaintiff-respondent Ireneo
Miranda the sums of P5,000 by way of actual damages and counsel fees, and
P10,000 as moral damages, with costs.

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

Respondent was one of the passengers on a jeepney driven by Eugenio Luga. While
the vehicle was descending the Sta. Mesa bridge at an excessive rate of speed, the
driver lost control thereof, causing it to swerve and to his the bridge wall. The accident
occurred on the morning of March 22, 1953. Five of the passengers were injured,
including the respondent who suffered a fracture of the upper right humerus. He was
taken to the National Orthopedic Hospital for treatment, and later was subjected to a
series of operations; the first on May 23, 1953, when wire loops were wound around
the broken bones and screwed into place; a second, effected to insert a metal splint,
and a third one to remove such splint. At the time of the trial, it appears that
respondent had not yet recovered the use of his right arm.

WHEREFORE, the decision of the Court of Appeals, dated March 31, 1995, and its
resolution, dated September 11, 1995, are AFFIRMED, with the MODIFICATION that
the award of moral damages is DELETED.
SO ORDERED.

The driver was charged with serious physical injuries through reckless imprudence,
and upon interposing a plea of guilty was sentenced accordingly.
The contention that the evidence did not sufficiently establish the identity of the
vehicle as the belonging to the petitioner was rejected by the appellate court which

92

found, among other things, that is carried plate No. TPU-1163, SERIES OF 1952,
Quezon City, registered in the name of Paz Fores, (appellant herein) and that the
vehicle even had the name of "Doa Paz" painted below its wind shield. No evidence
to the contrary was introduced by the petitioner, who relied on an attack upon the
credibility of the two policemen who went to the scene of the incident.

R. No. L-7547, April 30, 1955, and Medina vs. Cresencia, 99 Phil., 506; 52 Off. Gaz.
No. 10, p. 4606, that a transfer contemplated by the law, if made without the requisite
approval of the Public Service Commission, is not effective and binding in so far as
the responsibility of the grantee under the franchise in relation to the public is
concerned. Petitioner assails, however, the applicability of these rulings to the instant
case, contending that in those cases, the operator did not convey, by lease or by sale,
the vehicle independently of his rights under the franchise. This line of reasoning
does not find support in the law. The provisions of the statute are clear and prohibit
the sale, alienation, lease, or encumbrance of the property, franchise, certificate,
privileges or rights, or any part thereof of the owner or operator of the public service
Commission. The law was designed primarily for the protection of the public interest;
and until the approval of the public Service Commission is obtained the vehicle is, in
contemplation of law, still under the service of the owner or operator standing in the
records of the Commission which the public has a right to rely upon.

A point to be further remarked is petitioner's contention that on March 21, 1953, or

one day before the accident happened, she allegedly sold the passenger jeep that
was involved therein to a certain Carmen Sackerman.
The initial problem raised by the petitioner in this appeal may be formulated thus
"Is the approval of the Public Service Commission necessary for the sale of a public
service vehicle even without conveying therewith the authority to operate the same?"
Assuming the dubious sale to be a fact, the court of Appeals answered the query in
the affirmative. The ruling should be upheld.

The proviso contained in the aforequoted law, to the effect that nothing therein shall
be construed "to prevent the transaction from being negotiated or complete before its
approval", means only that the sale without the required approval is still valid and
binding between the parties (Montoya vs. Ignacio, supra). The phrase "in the ordinary
course of its business" found in the other proviso" or to prevent the sale, alienation, or
lease by any public service of any of its property". As correctly observed by the lower
court, could not have been intended to include the sale of the vehicle itself, but at
most may refer only to such property that may be conceivably disposed or by the
carrier in the ordinary course of its business, like junked equipment or spare parts.

Section 20 of the Public Service Act (Commonwealth Act No. 146) provides:
Sec. 20. Subject to established limitations and exceptions and saving
provisions to the contrary, it shall be unlawful for any public service or for the
owner, lessee or operator thereof, without the previous approval and
authority of the Commission previously had
xxx

xxx

xxx

The case of Indalecio de Torres vs. Vicente Ona (63 Phil., 594, 597) is enlightening;
and there, it was held:

(g) To sell, alienate, mortgage, encumber or lease its property, franchises,

certificates, privileges, or rights, or any part thereof; or merge or consolidate
its property, franchises, privileges or rights, or any part thereof, with those of
any other public service. The approval herein required shall be given, after
notice to the public and after hearing the persons interested at a public
hearing, if it be shown that there are just and reasonable grounds for making
the mortgage or encumbrance, for liabilities of more than one year maturity,
or the sale, alienation, lease, merger, or consolidation to be approved and
that the same are not detrimental to the public interest, and in case of a sale,
the date on which the same is to be consummated shall be fixed in the order
of approval: Provided, however, That nothing herein contained shall be
construed to prevent the transaction from being negotiated or completed
before its approval or to prevent the sale, alienation, or lease by any public
service of any of its property in the ordinary course of its business.

Under the law, the Public Service Commission has not only general
supervision and regulation of, but also full jurisdiction and control over all
public utilities including the property, equipment and facilities used, and the
property rights and franchise enjoyed by every individual and company
engaged i the performance of a public service in the sense this phrase is
used in the Public Service Act or Act No. 3108). By virtue of the provisions of
said Act, motor vehicles used in the performance of a service, as the
transportation of freightfrom one point to another, have to this date been
considered and they cannot but be so considered-public service property;
and, by reason of its own nature, a TH truck, which means that the operator
thereof places it at the disposal of anybody who is willing to pay a rental of
its use, when he desires to transfer or carry his effects, merchandise or any
other cargo from one place to another, is necessarily a public service
property. (Emphasis supplied)

Interpreting the effects of this particular provision of law, we have held in the recent
cases of Montoya vs. Ignacio,* 50 Off. Gaz. No. 1, p. 108; Timbol vs. Osias, et al., G.

93

Of course, this court has held in the case of Bachrach Motor co. vs. Zamboanga
Transportation Co., 52 Phil., 244, that there may be a nunc pro tunc authorization
which has the effect of having the approval retroact to the date of the transfer; but
such outcome cannot prejudice rights intervening in the meantime. It appears that no
such approval was given by the Commission before the accident occurred.

Art. 2220. Willful injury to property may be a legal ground for awarding moral
damages if the court should find that, under circumstances, such damages
are justify due. The same rule applies to breaches of contract where the
defendant acted fraudulently or in bad faith.
By contrasting the provisions of these two article it immediately becomes apparent
that:

The P10,000 actual damages awarded by the Court of First Instance of Manila were
reduced by the Court of Appeals to only P2,000, on the ground that a review of the
records failed to disclose a sufficient basis for the trial court's appraisal, since the only
evidence presented on this point consisted of respondent's bare statement that his
expenses and loss of income amounted to P20,000. On the other hand, "it cannot be
denied," the lower court said, "that appellee (respondent) did incur expenses"' It is
well to note further that respondent was a painter by profession and a professor of
Fine Arts, so that the amount of P2,000 awarded cannot be said to be excessive (see
Arts. 2224 and 2225, Civil Code of the Philippines). The attorney's fees in the sum of
P3,000 also awarded to the respondent are assailed on the ground that the Court of
First Instance did not provided for the same, and since no appeal was interposed by
said respondent, it was allegedly error for the Court of Appeals to award themmotu
proprio. Petitioner fails to note that attorney's fees are included in the concept of
actual damages under the Civil Code and may be awarded whenever the court
deems it is just and equitable (Art. 2208, Civil Code of the Philippines). We see no
reason to alter these awards.

(a) In case of breach of contract (including one of transportation) proof of bad faith or
fraud (dolus), i.e., wanton or deliberately injurious conduct, is essential to justify an
award of moral damages; and
(b) That a breach of contract can not be considered included in the descriptive term
"analogous cases" used in Art. 2219; not only because Art. 2220 specifically provides
for the damages that are caused by contractual breach, but because the definition
of quasi-delict in Art. 2176 of the Code expressly excludes the cases where there is a
"preexisting contractual relation between the parties."
Art. 2176. Whoever by act or omission causes damage to another, there
being fault or negligence, is obliged to pay for the damage dome. Such fault
or negligence, if there is no pre-existing contractual relation between the
parties, is called a quasi-delict and is governed by the provisions of this
Chapter.

Anent the moral damages ordered to be paid to the respondent, the same must be
discarded. We have repeatedly ruled (Cachero vs. Manila Yellow Taxicab Co. Inc.,
101 Phil., 523; 54 Off. Gaz., [26], 6599; Necesito, et al vs. Paras, 104 Phil., 75; 56
Off. Gaz., [23] 4023, that moral damages are not recoverable in damage actions
predicted on a breach of the contract of transportation, in view of Articles 2219 and
2220 of the new Civil Code, which provide as follows:

The exception to the basic rule of damages now under consideration is a mishap
resulting in the death of a passenger, in which case Article 1764 makes the common
carrier expressly subject to the rule of Art. 2206, that entitles the deceased passenger
to "demand moral damages for mental anguish by reason of the death of the
deceased" (Necesito vs. Paras, 104 Phil., 84, Resolution on motion to reconsider,
September 11, 1958). But the exceptional rule of Art. 1764 makes it all the more
evident that where the injured passenger does not die, moral damages are not
recoverable unless it is proved that the carrier was guilty of malice or bad faith. We
think it is clear that the mere carelessness of the carrier's driver does not per
se constitute of justify an inference of malice or bad faith on the part of the carrier;
and in the case at bar there is no other evidence of such malice to support the award
of moral damages by the Court of Appeals. To award moral damages for breach of
contract, therefore, without proof of bad faith or malice on the part of the defendant,
as required by Art. 220, would be to violate the clear provisions of the law, and
constitute unwarranted judicial legislation.

Art. 2219. Moral damages may be recovered in the following and analogous
cases:
(1) A criminal offense resulting in physical injuries;
(2) Quasi-delicts causing physical injuries;
xxx

xxx

xxx

The Court of Appeals has invoked our rulings in Castro vs. Acro Taxicab Co., G.R.
No. 49155, December 14, 1948 and Layda vs. Court of Appeals, 90 Phil., 724; but

94

these doctrines were predicated upon our former law of damages, before judicial
discretion in fixing them became limited by the express provisions of the new Civil
Code (previously quoted). Hence, the aforesaid rulings are now inapplicable.

ART. 1762. The contributory negligence of the passenger does not bar
recovery of damages for his death or injuries, if the proximate cause thereof
is the negligence of the common carrier, but the amount of damages shall be
equitably reduced.

Upon the other hand, the advantageous position of a party suing a carrier for breach
of the contract of transportations explains, to some extent, the limitations imposed by
the new Code on the amount of the recovery. The action for breach of contract
imposes on the defendant carrier a presumption of liability upon mere proof of injury
to the passenger; that latter is relieved from the duty to established the fault of the
carrier, or of his employees, and the burden is placed on the carrier to prove that it
was due to an unforseen event or to force majeure (Cangco vs. Manila Railroad Co.,
38 Phil., 768, 777). Moreover, the carrier, unlike in suits for quasi-delict, may not
escape liability by proving that it has exercised due diligence in the selection and
supervision of its employees (Art. 1759, new civil code; Cangco vs. Manila Railroad
Co., supra; Prado vs. Manila Electric Co., 51 Phil., 900).

The distinction between fraud, bad faith or malice in the sense of deliberate or wanton
wrong doing and negligence (as mere carelessness) is too fundamental in our law to
be ignored (Arts. 1170-1172); their consequences being clearly differentiated by the
Code.
ART. 2201. In contracts and quasi-contracts, the damages for which the
obligor who acted in good faith is liable shall be those that are the natural
and probable consequences of the breach of the obligation, and which the
parties have foreseen or could have reasonably foreseen at the time the
obligation was constituted.

The difference in conditions, defenses and proof, as well as the codal concept
of quasi-delict as essentially extracontractual negligence, compel us to differentiate
between action ex contractu, and actions quasi ex delicto, and prevent us from
viewing the action for breach of contract as simultaneously embodying an action on
tort. Neither can this action be taken as one to enforce on employee's liability under
Art. 103 of the Revised Penal Code, since the responsibility is not alleged to be
subsidiary, nor is there on record any averment or proof that the driver of appellant
was insolvent. In fact, he is not even made a party to the suit.

In case of fraud, bad faith, malice or wanton attitude, the obligor shall be
responsible for all damages which may be reasonably attributed to the nonperformance of the obligation.
It is to be presumed, in the absence of statutory provision to the contrary, that this
difference was in the mind of the lawmakers when in Art. 2220 they limited recovery
of moral damages to breaches of contract in bad faith. It is true that negligence may
be occasionally so gross as to amount to malice; but that fact must be shown in
evidence, and a carrier's bad faith is not to be lightly inferred from a mere finding that
the contract was breached through negligence of the carrier's employees.

It is also suggested that a carrier's violation of its engagement to safety transport the
passenger involves a breach of the passenger's confidence, and therefore should be
regarded as a breach of contract in bad faith, justifying recovery of moral damages
under Art. 2220. This theory is untenable, for under it the carrier would always be
deemed in bad faith, in every case its obligation to the passenger is infringed, and it
would be never accountable for simple negligence; while under the law (Art. 1756).
the presumption is that common carriers acted negligently(and not maliciously), and
Art. 1762 speaks of negligence of the common carrier.

In view of the foregoing considerations, the decision of the Court of Appeals is

modified by eliminating the award of P5,000.00 by way of moral damages. (Court of
Appeals Resolution of May 5, 1957). In all other respects, the judgment is affirmed.
No costs in this instance. So ordered.
Paras, C.J., Bengzon, Padilla, Montemayor, Reyes, A., Bautista Angelo, Labrador,
Concepcion and Endencia, JJ.,concur.

ART. 1756. In case of death of or injuries to passengers, common carriers

are presumed to have been at fault or to have acted negligently, unless they
prove that they observed extraordinary diligence as prescribed in article
1733 and 1755.

FIRST DIVISION
[G.R. No. 138569. September 11, 2003]

95

THE CONSOLIDATED BANK and TRUST

CORPORATION, petitioner, vs. COURT OF APPEALS and L.C.
DIAZ and COMPANY, CPAs, respondents.

No. 6 informed him that somebody got the passbook. [3] Calapre went back to L.C.
Diaz and reported the incident to Macaraya.
Macaraya immediately prepared a deposit slip in duplicate copies with a check
of P200,000. Macaraya, together with Calapre, went to Solidbank and presented to
Teller No. 6 the deposit slip and check. The teller stamped the words DUPLICATE
and SAVING TELLER 6 SOLIDBANK HEAD OFFICE on the duplicate copy of the
deposit slip. When Macaraya asked for the passbook, Teller No. 6 told Macaraya that
someone got the passbook but she could not remember to whom she gave the
passbook. When Macaraya asked Teller No. 6 if Calapre got the passbook, Teller No.
6 answered that someone shorter than Calapre got the passbook. Calapre was then
standing beside Macaraya.

DECISION
CARPIO, J.:
The Case
Before us is a petition for review of the Decision [1] of the Court of Appeals dated
27 October 1998 and its Resolution dated 11 May 1999. The assailed decision
reversed the Decision[2] of the Regional Trial Court of Manila, Branch 8, absolving
petitioner Consolidated Bank and Trust Corporation, now known as Solidbank
Corporation (Solidbank), of any liability. The questioned resolution of the appellate
court denied the motion for reconsideration of Solidbank but modified the decision by
deleting the award of exemplary damages, attorneys fees, expenses of litigation and
cost of suit.

Teller No. 6 handed to Macaraya a deposit slip dated 14 August 1991 for the
deposit of a check for P90,000 drawn on Philippine Banking Corporation (PBC). This
PBC check of L.C. Diaz was a check that it had long closed. [4] PBC subsequently
dishonored the check because of insufficient funds and because the signature in the
check differed from PBCs specimen signature.Failing to get back the passbook,
Macaraya went back to her office and reported the matter to the Personnel Manager
of L.C. Diaz, Emmanuel Alvarez.

The Facts
The following day, 15 August 1991, L.C. Diaz through its Chief Executive Officer,
Luis C. Diaz (Diaz), called up Solidbank to stop any transaction using the same
passbook until L.C. Diaz could open a new account.[5] On the same day, Diaz formally
wrote Solidbank to make the same request. It was also on the same day that L.C.
Diaz learned of the unauthorized withdrawal the day before, 14 August 1991,
of P300,000 from its savings account. The withdrawal slip for the P300,000 bore the
signatures of the authorized signatories of L.C. Diaz, namely Diaz and Rustico L.
Murillo. The signatories, however, denied signing the withdrawal slip. A certain Noel
Tamayo received the P300,000.

Solidbank is a domestic banking corporation organized and existing under

Philippine laws. Private respondent L.C. Diaz and Company, CPAs (L.C. Diaz), is a
professional partnership engaged in the practice of accounting.
Sometime in March 1976, L.C. Diaz opened a savings account with Solidbank,
designated as Savings Account No. S/A 200-16872-6.
On 14 August 1991, L.C. Diaz through its cashier, Mercedes Macaraya
(Macaraya), filled up a savings (cash) deposit slip for P990 and a savings (checks)
deposit slip for P50. Macaraya instructed the messenger of L.C. Diaz, Ismael Calapre
(Calapre), to deposit the money with Solidbank. Macaraya also gave Calapre the
Solidbank passbook.

In an Information[6] dated 5 September 1991, L.C. Diaz charged its messenger,

Emerano Ilagan (Ilagan) and one Roscon Verdazola with Estafa through Falsification
of Commercial Document. The Regional Trial Court of Manila dismissed the criminal
case after the City Prosecutor filed a Motion to Dismiss on 4 August 1992.

Calapre went to Solidbank and presented to Teller No. 6 the two deposit slips
and the passbook. The teller acknowledged receipt of the deposit by returning to
Calapre the duplicate copies of the two deposit slips. Teller No. 6 stamped the deposit
slips with the words DUPLICATE and SAVING TELLER 6 SOLIDBANK HEAD
OFFICE. Since the transaction took time and Calapre had to make another deposit
for L.C. Diaz with Allied Bank, he left the passbook with Solidbank. Calapre then went
to Allied Bank. When Calapre returned to Solidbank to retrieve the passbook, Teller

On 24 August 1992, L.C. Diaz through its counsel demanded from Solidbank the
return of its money. Solidbank refused.
On 25 August 1992, L.C. Diaz filed a Complaint [7] for Recovery of a Sum of
Money against Solidbank with the Regional Trial Court of Manila, Branch 8. After trial,

96

the trial court rendered on 28 December 1994 a decision absolving Solidbank and
dismissing the complaint.

Solidbank did not have any participation in the custody and care of the
passbook. The trial court believed that Solidbanks act of allowing the withdrawal
of P300,000 was not the direct and proximate cause of the loss. The trial court held
that L.C. Diazs negligence caused the unauthorized withdrawal. Three facts establish
L.C. Diazs negligence: (1) the possession of the passbook by a person other than the
depositor L.C. Diaz; (2) the presentation of a signed withdrawal receipt by an
unauthorized person; and (3) the possession by an unauthorized person of a PBC
check long closed by L.C. Diaz, which check was deposited on the day of the
fraudulent withdrawal.

L.C. Diaz then appealed[8] to the Court of Appeals. On 27 October 1998, the
Court of Appeals issued its Decision reversing the decision of the trial court.
On 11 May 1999, the Court of Appeals issued its Resolution denying the motion
for reconsideration of Solidbank. The appellate court, however, modified its decision
by deleting the award of exemplary damages and attorneys fees.

The trial court debunked L.C. Diazs contention that Solidbank did not follow the
precautionary procedures observed by the two parties whenever L.C. Diaz withdrew
significant amounts from its account. L.C. Diaz claimed that a letter must accompany
withdrawals of more than P20,000. The letter must request Solidbank to allow the
withdrawal and convert the amount to a managers check. The bearer must also have
a letter authorizing him to withdraw the same amount. Another person driving a car
must accompany the bearer so that he would not walk from Solidbank to the office in
making the withdrawal. The trial court pointed out that L.C. Diaz disregarded these
precautions in its past withdrawal. On 16 July 1991, L.C. Diaz withdrew P82,554
without any separate letter of authorization or any communication with Solidbank that
the money be converted into a managers check.

The Ruling of the Trial Court

In absolving Solidbank, the trial court applied the rules on savings account
written on the passbook. The rules state that possession of this book shall raise the
presumption of ownership and any payment or payments made by the bank upon the
production of the said book and entry therein of the withdrawal shall have the same
effect as if made to the depositor personally.[9]
At the time of the withdrawal, a certain Noel Tamayo was not only in possession
of the passbook, he also presented a withdrawal slip with the signatures of the
authorized signatories of L.C. Diaz. The specimen signatures of these persons were
in the signature cards. The teller stamped the withdrawal slip with the words Saving
Teller No. 5. The teller then passed on the withdrawal slip to Genere Manuel (Manuel)
for authentication. Manuel verified the signatures on the withdrawal slip. The
withdrawal slip was then given to another officer who compared the signatures on the
withdrawal slip with the specimen on the signature cards. The trial court concluded
that Solidbank acted with care and observed the rules on savings account when it
allowed the withdrawal ofP300,000 from the savings account of L.C. Diaz.

The trial court further justified the dismissal of the complaint by holding that the
case was a last ditch effort of L.C. Diaz to recover P300,000 after the dismissal of the
criminal case against Ilagan.
The dispositive portion of the decision of the trial court reads:
IN VIEW OF THE FOREGOING, judgment is hereby rendered DISMISSING the complaint.

The trial court pointed out that the burden of proof now shifted to L.C. Diaz to
prove that the signatures on the withdrawal slip were forged. The trial court
admonished L.C. Diaz for not offering in evidence the National Bureau of
Investigation (NBI) report on the authenticity of the signatures on the withdrawal slip
for P300,000. The trial court believed that L.C. Diaz did not offer this evidence
because it is derogatory to its action.

The Court further renders judgment in favor of defendant bank pursuant to its counterclaim the
amount of Thirty Thousand Pesos (P30,000.00) as attorneys fees.
With costs against plaintiff.
SO ORDERED.[12]

Another provision of the rules on savings account states that the depositor must
keep the passbook under lock and key.[10] When another person presents the
passbook for withdrawal prior to Solidbanks receipt of the notice of loss of the
passbook, that person is considered as the owner of the passbook. The trial court
ruled that the passbook presented during the questioned transaction was now out of
the lock and key and presumptively ready for a business transaction.[11]

The Ruling of the Court of Appeals

The Court of Appeals ruled that Solidbanks negligence was the proximate cause
of the unauthorized withdrawal of P300,000 from the savings account of L.C.

97

Diaz. The appellate court reached this conclusion after applying the provision of the
Civil Code on quasi-delict, to wit:

1. Ordering defendant-appellee Consolidated Bank and Trust Corporation to pay

plaintiff-appellant the sum of Three Hundred Thousand Pesos
(P300,000.00), with interest thereon at the rate of 12% per annum from the
date of filing of the complaint until paid, the sum of P20,000.00 as
exemplary damages, and P20,000.00 as attorneys fees and expenses of
litigation as well as the cost of suit; and

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

2. Ordering the dismissal of defendant-appellees counterclaim in the amount

of P30,000.00 as attorneys fees.

The appellate court held that the three elements of a quasi-delict are present in this
case, namely: (a) damages suffered by the plaintiff; (b) fault or negligence of the
defendant, or some other person for whose acts he must respond; and (c) the
connection of cause and effect between the fault or negligence of the defendant and
the damage incurred by the plaintiff.

SO ORDERED.[13]
Acting on the motion for reconsideration of Solidbank, the appellate court affirmed its
decision but modified the award of damages. The appellate court deleted the award
of exemplary damages and attorneys fees. Invoking Article 2231[14] of the Civil Code,
the appellate court ruled that exemplary damages could be granted if the defendant
acted with gross negligence. Since Solidbank was guilty of simple negligence only,
the award of exemplary damages was not justified. Consequently, the award of
attorneys fees was also disallowed pursuant to Article 2208 of the Civil Code.The
expenses of litigation and cost of suit were also not imposed on Solidbank.

The Court of Appeals pointed out that the teller of Solidbank who received the
withdrawal slip for P300,000 allowed the withdrawal without making the necessary
inquiry. The appellate court stated that the teller, who was not presented by Solidbank
during trial, should have called up the depositor because the money to be withdrawn
was a significant amount. Had the teller called up L.C. Diaz, Solidbank would have
known that the withdrawal was unauthorized. The teller did not even verify the identity
of the impostor who made the withdrawal. Thus, the appellate court found Solidbank
liable for its negligence in the selection and supervision of its employees.

The dispositive portion of the Resolution reads as follows:

The appellate court ruled that while L.C. Diaz was also negligent in entrusting its
deposits to its messenger and its messenger in leaving the passbook with the
teller, Solidbank could not escape liability because of the doctrine of last clear
chance. Solidbank could have averted the injury suffered by L.C. Diaz had it called up
L.C. Diaz to verify the withdrawal.

WHEREFORE, foregoing considered, our decision dated October 27, 1998 is affirmed with
modification by deleting the award of exemplary damages and attorneys fees, expenses of
litigation and cost of suit.
SO ORDERED.[15]

The appellate court ruled that the degree of diligence required from Solidbank is
more than that of a good father of a family. The business and functions of banks are
affected with public interest. Banks are obligated to treat the accounts of their
depositors with meticulous care, always having in mind the fiduciary nature of their
relationship with their clients. The Court of Appeals found Solidbank remiss in its duty,
violating its fiduciary relationship with L.C. Diaz.

Hence, this petition.

The Issues
Solidbank seeks the review of the decision and resolution of the Court of
Appeals on these grounds:

The dispositive portion of the decision of the Court of Appeals reads:

I. THE COURT OF APPEALS ERRED IN HOLDING THAT PETITIONER

BANK SHOULD SUFFER THE LOSS BECAUSE ITS TELLER
SHOULD HAVE FIRST CALLED PRIVATE RESPONDENT BY
TELEPHONE BEFORE IT ALLOWED THE WITHDRAWAL
OF P300,000.00 TO RESPONDENTS MESSENGER EMERANO

WHEREFORE, premises considered, the decision appealed from is hereby REVERSED and a
new one entered.

98

generally applicable when there is no pre-existing contractual relationship between

the parties.

ILAGAN, SINCE THERE IS NO AGREEMENT BETWEEN THE

PARTIES IN THE OPERATION OF THE SAVINGS ACCOUNT, NOR
IS THERE ANY BANKING LAW, WHICH MANDATES THAT A
BANK TELLER SHOULD FIRST CALL UP THE DEPOSITOR
BEFORE ALLOWING A WITHDRAWAL OF A BIG AMOUNT IN A
SAVINGS ACCOUNT.

We hold that Solidbank is liable for breach of contract due to negligence,

or culpa contractual.
The contract between the bank and its depositor is governed by the provisions
of the Civil Code on simple loan.[17] Article 1980 of the Civil Code expressly provides
that x x x savings x x x deposits of money in banks and similar institutions shall be
governed by the provisions concerning simple loan. There is a debtor-creditor
relationship between the bank and its depositor. The bank is the debtor and the
depositor is the creditor. The depositor lends the bank money and the bank agrees to
pay the depositor on demand. The savings deposit agreement between the bank and
the depositor is the contract that determines the rights and obligations of the parties.

II. THE COURT OF APPEALS ERRED IN APPLYING THE DOCTRINE OF

LAST CLEAR CHANCE AND IN HOLDING THAT PETITIONER
BANKS TELLER HAD THE LAST OPPORTUNITY TO WITHHOLD
THE WITHDRAWAL WHEN IT IS UNDISPUTED THAT THE TWO
SIGNATURES OF RESPONDENT ON THE WITHDRAWAL SLIP ARE
GENUINE AND PRIVATE RESPONDENTS PASSBOOK WAS DULY
PRESENTED, AND CONTRARIWISE RESPONDENT WAS
NEGLIGENT IN THE SELECTION AND SUPERVISION OF ITS
MESSENGER EMERANO ILAGAN, AND IN THE SAFEKEEPING OF
ITS CHECKS AND OTHER FINANCIAL DOCUMENTS.

The law imposes on banks high standards in view of the fiduciary nature of
banking. Section 2 of Republic Act No. 8791 (RA 8791), [18] which took effect on 13
June 2000, declares that the State recognizes the fiduciary nature of banking that
requires high standards of integrity and performance.[19] This new provision in the
general banking law, introduced in 2000, is a statutory affirmation of Supreme Court
decisions, starting with the 1990 case of Simex International v. Court of Appeals,
[20]
holding that the bank is under obligation to treat the accounts of its depositors
with meticulous care, always having in mind the fiduciary nature of their relationship.

III. THE COURT OF APPEALS ERRED IN NOT FINDING THAT THE

INSTANT CASE IS A LAST DITCH EFFORT OF PRIVATE
RESPONDENT TO RECOVER ITS P300,000.00 AFTER FAILING IN
ITS EFFORTS TO RECOVER THE SAME FROM ITS EMPLOYEE
EMERANO ILAGAN.

[21]

IV. THE COURT OF APPEALS ERRED IN NOT MITIGATING THE

DAMAGES AWARDED AGAINST PETITIONER UNDER ARTICLE
2197 OF THE CIVIL CODE, NOTWITHSTANDING ITS FINDING
THAT PETITIONER BANKS NEGLIGENCE WAS ONLY
CONTRIBUTORY.[16]

This fiduciary relationship means that the banks obligation to observe high
standards of integrity and performance is deemed written into every deposit
agreement between a bank and its depositor. The fiduciary nature of banking requires
banks to assume a degree of diligence higher than that of a good father of a
family. Article 1172 of the Civil Code states that the degree of diligence required of an
obligor is that prescribed by law or contract, and absent such stipulation then the
diligence of a good father of a family.[22] Section 2 of RA 8791 prescribes the statutory
diligence required from banks that banks must observe high standards of integrity and
performance in servicing their depositors. Although RA 8791 took effect almost nine
years after the unauthorized withdrawal of the P300,000 from L.C. Diazs savings
account, jurisprudence[23] at the time of the withdrawal already imposed on banks the
same high standard of diligence required under RA No. 8791.

The Ruling of the Court

The petition is partly meritorious.
Solidbanks Fiduciary Duty under the Law
The rulings of the trial court and the Court of Appeals conflict on the application
of the law. The trial court pinned the liability on L.C. Diaz based on the provisions of
the rules on savings account, a recognition of the contractual relationship between
Solidbank and L.C. Diaz, the latter being a depositor of the former. On the other hand,
the Court of Appeals applied the law on quasi-delict to determine who between the
two parties was ultimately negligent. The law on quasi-delict or culpa aquiliana is

However, the fiduciary nature of a bank-depositor relationship does not convert

the contract between the bank and its depositors from a simple loan to a trust
agreement, whether express or implied. Failure by the bank to pay the depositor is
failure to pay a simple loan, and not a breach of trust. [24] The law simply imposes on

99

the bank a higher standard of integrity and performance in complying with its
obligations under the contract of simple loan, beyond those required of non-bank
debtors under a similar contract of simple loan.

defendant to prove that he was not at fault or negligent. In contrast, in culpa

aquiliana the plaintiff has the burden of proving that the defendant was negligent. In
the present case, L.C. Diaz has established that Solidbank breached its contractual
obligation to return the passbook only to the authorized representative of L.C.
Diaz. There is thus a presumption that Solidbank was at fault and its teller was
negligent in not returning the passbook to Calapre. The burden was on Solidbank to
prove that there was no negligence on its part or its employees.

The fiduciary nature of banking does not convert a simple loan into a trust
agreement because banks do not accept deposits to enrich depositors but to earn
money for themselves. The law allows banks to offer the lowest possible interest rate
to depositors while charging the highest possible interest rate on their own
borrowers. The interest spread or differential belongs to the bank and not to the
depositors who are not cestui que trust of banks. If depositors are cestui que trust of
banks, then the interest spread or income belongs to the depositors, a situation that
Congress certainly did not intend in enacting Section 2 of RA 8791.

Solidbank failed to discharge its burden. Solidbank did not present to the trial
court Teller No. 6, the teller with whom Calapre left the passbook and who was
supposed to return the passbook to him. The record does not indicate that Teller No.
6 verified the identity of the person who retrieved the passbook. Solidbank also failed
to adduce in evidence its standard procedure in verifying the identity of the person
retrieving the passbook, if there is such a procedure, and that Teller No. 6
implemented this procedure in the present case.

Solidbanks Breach of its Contractual Obligation

Article 1172 of the Civil Code provides that responsibility arising from negligence
in the performance of every kind of obligation is demandable. For breach of the
savings deposit agreement due to negligence, or culpa contractual, the bank is liable
to its depositor.

Solidbank is bound by the negligence of its employees under the principle

of respondeat superior or command responsibility. The defense of exercising the
required diligence in the selection and supervision of employees is not a complete
defense in culpa contractual, unlike in culpa aquiliana.[25]

Calapre left the passbook with Solidbank because the transaction took time and
he had to go to Allied Bank for another transaction. The passbook was still in the
hands of the employees of Solidbank for the processing of the deposit when Calapre
left Solidbank. Solidbanks rules on savings account require that the deposit book
should be carefully guarded by the depositor and kept under lock and key, if possible.
When the passbook is in the possession of Solidbanks tellers during withdrawals, the
law imposes on Solidbank and its tellers an even higher degree of diligence in
safeguarding the passbook.

The bank must not only exercise high standards of integrity and performance, it
must also insure that its employees do likewise because this is the only way to insure
that the bank will comply with its fiduciary duty. Solidbank failed to present the teller
who had the duty to return to Calapre the passbook, and thus failed to prove that this
teller exercised the high standards of integrity and performance required of
Solidbanks employees.
Proximate Cause of the Unauthorized Withdrawal

Likewise, Solidbanks tellers must exercise a high degree of diligence in insuring

that they return the passbook only to the depositor or his authorized representative.
The tellers know, or should know, that the rules on savings account provide that any
person in possession of the passbook is presumptively its owner. If the tellers give the
passbook to the wrong person, they would be clothing that person presumptive
ownership of the passbook, facilitating unauthorized withdrawals by that person. For
failing to return the passbook to Calapre, the authorized representative of L.C. Diaz,
Solidbank and Teller No. 6 presumptively failed to observe such high degree of
diligence in safeguarding the passbook, and in insuring its return to the party
authorized to receive the same.

Another point of disagreement between the trial and appellate courts is the
proximate cause of the unauthorized withdrawal. The trial court believed that L.C.
Diazs negligence in not securing its passbook under lock and key was the proximate
cause that allowed the impostor to withdraw the P300,000. For the appellate court,
the proximate cause was the tellers negligence in processing the withdrawal without
first verifying with L.C. Diaz. We do not agree with either court.
Proximate cause is that cause which, in natural and continuous sequence,
unbroken by any efficient intervening cause, produces the injury and without which
the result would not have occurred.[26] Proximate cause is determined by the facts of
each case upon mixed considerations of logic, common sense, policy and precedent.

In culpa contractual, once the plaintiff proves a breach of contract, there is a

presumption that the defendant was at fault or negligent. The burden is on the

[27]

100

L.C. Diaz was not at fault that the passbook landed in the hands of the
impostor. Solidbank was in possession of the passbook while it was processing the
deposit. After completion of the transaction, Solidbank had the contractual obligation
to return the passbook only to Calapre, the authorized representative of L.C.
Diaz. Solidbank failed to fulfill its contractual obligation because it gave the passbook
to another person.

xxx Ilagan also had with him (before the withdrawal) a forged check of PBC and indicated the
amount of P90,000 which he deposited in favor of L.C. Diaz and Company. After successfully
withdrawing this large sum of money, accused Ilagan gave alias Rey (Noel Tamayo) his share
of the loot. Ilagan then hired a taxicab in the amount of P1,000 to transport him (Ilagan) to his
home province at Bauan, Batangas. Ilagan extravagantly and lavishly spent his money but a
big part of his loot was wasted in cockfight and horse racing. Ilagan was apprehended and
meekly admitted his guilt.[28] (Emphasis supplied.)

Solidbanks failure to return the passbook to Calapre made possible the

withdrawal of the P300,000 by the impostor who took possession of the
passbook. Under Solidbanks rules on savings account, mere possession of the
passbook raises the presumption of ownership. It was the negligent act of Solidbanks
Teller No. 6 that gave the impostor presumptive ownership of the passbook. Had the
passbook not fallen into the hands of the impostor, the loss of P300,000 would not
have happened. Thus, the proximate cause of the unauthorized withdrawal was
Solidbanks negligence in not returning the passbook to Calapre.

L.C. Diaz refutes Solidbanks contention by pointing out that the person who
withdrew the P300,000 was a certain Noel Tamayo. Both the trial and appellate courts
stated that this Noel Tamayo presented the passbook with the withdrawal slip.
We uphold the finding of the trial and appellate courts that a certain Noel
Tamayo withdrew the P300,000. The Court is not a trier of facts. We find no justifiable
reason to reverse the factual finding of the trial court and the Court of Appeals. The
tellers who processed the deposit of the P90,000 check and the withdrawal of
the P300,000 were not presented during trial to substantiate Solidbanks claim that
Ilagan deposited the check and made the questioned withdrawal. Moreover, the entry
quoted by Solidbank does not categorically state that Ilagan presented the withdrawal
slip and the passbook.

We do not subscribe to the appellate courts theory that the proximate cause of
the unauthorized withdrawal was the tellers failure to call up L.C. Diaz to verify the
withdrawal. Solidbank did not have the duty to call up L.C. Diaz to confirm the
withdrawal. There is no arrangement between Solidbank and L.C. Diaz to this
effect. Even the agreement between Solidbank and L.C. Diaz pertaining to measures
that the parties must observe whenever withdrawals of large amounts are made does
not direct Solidbank to call up L.C. Diaz.

Doctrine of Last Clear Chance

The doctrine of last clear chance states that where both parties are negligent but
the negligent act of one is appreciably later than that of the other, or where it is
impossible to determine whose fault or negligence caused the loss, the one who had
the last clear opportunity to avoid the loss but failed to do so, is chargeable with the
loss.[29] Stated differently, the antecedent negligence of the plaintiff does not preclude
him from recovering damages caused by the supervening negligence of the
defendant, who had the last fair chance to prevent the impending harm by the
exercise of due diligence.[30]

There is no law mandating banks to call up their clients whenever their

representatives withdraw significant amounts from their accounts. L.C. Diaz therefore
had the burden to prove that it is the usual practice of Solidbank to call up its clients
to verify a withdrawal of a large amount of money. L.C. Diaz failed to do so.
Teller No. 5 who processed the withdrawal could not have been put on guard to
verify the withdrawal. Prior to the withdrawal of P300,000, the impostor deposited with
Teller No. 6 the P90,000 PBC check, which later bounced. The impostor apparently
deposited a large amount of money to deflect suspicion from the withdrawal of a
much bigger amount of money. The appellate court thus erred when it imposed on
Solidbank the duty to call up L.C. Diaz to confirm the withdrawal when no law requires
this from banks and when the teller had no reason to be suspicious of the transaction.

We do not apply the doctrine of last clear chance to the present case. Solidbank
is liable for breach of contract due to negligence in the performance of its contractual
obligation to L.C. Diaz. This is a case of culpa contractual, where neither the
contributory negligence of the plaintiff nor his last clear chance to avoid the loss,
would exonerate the defendant from liability.[31] Such contributory negligence or last
clear chance by the plaintiff merely serves to reduce the recovery of damages by the
plaintiff but does not exculpate the defendant from his breach of contract.[32]

Solidbank continues to foist the defense that Ilagan made the

withdrawal. Solidbank claims that since Ilagan was also a messenger of L.C. Diaz, he
was familiar with its teller so that there was no more need for the teller to verify the
withdrawal. Solidbank relies on the following statements in the Booking and
Information Sheet of Emerano Ilagan:

Mitigated Damages

101

Under Article 1172, liability (for culpa contractual) may be regulated by the
courts, according to the circumstances. This means that if the defendant exercised
the proper diligence in the selection and supervision of its employee, or if the plaintiff
was guilty of contributory negligence, then the courts may reduce the award of
damages. In this case, L.C. Diaz was guilty of contributory negligence in allowing a
withdrawal slip signed by its authorized signatories to fall into the hands of an
impostor. Thus, the liability of Solidbank should be reduced.

SANCHEZ, J.:
The Court of First Instance of Manila 1 sentenced petitioner to pay respondent Rafael
Carrascoso P25,000.00 by way of moral damages; P10,000.00 as exemplary
damages; P393.20 representing the difference in fare between first class and tourist
class for the portion of the trip Bangkok-Rome, these various amounts with interest at
the legal rate, from the date of the filing of the complaint until paid; plus P3,000.00 for
attorneys' fees; and the costs of suit.

In Philippine Bank of Commerce v. Court of Appeals,[33] where the Court held

the depositor guilty of contributory negligence, we allocated the damages between
the depositor and the bank on a 40-60 ratio. Applying the same ruling to this case, we
hold that L.C. Diaz must shoulder 40% of the actual damages awarded by the
appellate court. Solidbank must pay the other 60% of the actual damages.

On appeal,2 the Court of Appeals slightly reduced the amount of refund on

Carrascoso's plane ticket from P393.20 to P383.10, and voted to affirm the appealed
decision "in all other respects", with costs against petitioner.
The case is now before us for review on certiorari.

WHEREFORE,
the
decision
of
the
Court
of
Appeals
is AFFIRMED with MODIFICATION. Petitioner Solidbank Corporation shall pay
private respondent L.C. Diaz and Company, CPAs only 60% of the actual damages
awarded by the Court of Appeals. The remaining 40% of the actual damages shall be
borne by private respondent L.C. Diaz and Company, CPAs. Proportionate costs.

The facts declared by the Court of Appeals as " fully supported by the evidence of
record", are:
Plaintiff, a civil engineer, was a member of a group of 48 Filipino pilgrims that
left Manila for Lourdes on March 30, 1958.

SO ORDERED.

On March 28, 1958, the defendant, Air France, through its authorized agent,
Philippine Air Lines, Inc., issued to plaintiff a "first class" round trip airplane
ticket from Manila to Rome. From Manila to Bangkok, plaintiff travelled in
"first class", but at Bangkok, the Manager of the defendant airline forced
plaintiff to vacate the "first class" seat that he was occupying because, in the
words of the witness Ernesto G. Cuento, there was a "white man", who, the
Manager alleged, had a "better right" to the seat. When asked to vacate his
"first class" seat, the plaintiff, as was to be expected, refused, and told
defendant's Manager that his seat would be taken over his dead body; a
commotion ensued, and, according to said Ernesto G. Cuento, "many of the
Filipino passengers got nervous in the tourist class; when they found out that
Mr. Carrascoso was having a hot discussion with the white man [manager],
they came all across to Mr. Carrascoso and pacified Mr. Carrascoso to give
his seat to the white man" (Transcript, p. 12, Hearing of May 26, 1959); and
plaintiff reluctantly gave his "first class" seat in the plane.3

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-21438

September 28, 1966

AIR FRANCE, petitioner,

vs.
RAFAEL CARRASCOSO and the HONORABLE COURT OF
APPEALS, respondents.

1. The trust of the relief petitioner now seeks is that we review "all the findings" 4 of
respondent Court of Appeals. Petitioner charges that respondent court failed to make
complete findings of fact on all the issues properly laid before it. We are asked to
consider facts favorable to petitioner, and then, to overturn the appellate court's
decision.

Lichauco, Picazo and Agcaoili for petitioner.

Bengzon Villegas and Zarraga for respondent R. Carrascoso.

102

Coming into focus is the constitutional mandate that "No decision shall be rendered
by any court of record without expressing therein clearly and distinctly the facts and
the law on which it is based". 5 This is echoed in the statutory demand that a judgment
determining the merits of the case shall state "clearly and distinctly the facts and the
law on which it is based"; 6 and that "Every decision of the Court of Appeals shall
contain complete findings of fact on all issues properly raised before it". 7

With these guideposts, we now face the problem of whether the findings of fact of the
Court of Appeals support its judgment.
3. Was Carrascoso entitled to the first class seat he claims?
It is conceded in all quarters that on March 28, 1958 he paid to and received from
petitioner a first class ticket. But petitioner asserts that said ticket did not represent
the true and complete intent and agreement of the parties; that said respondent knew
that he did not have confirmed reservations for first class on any specific flight,
although he had tourist class protection; that, accordingly, the issuance of a first class
ticket was no guarantee that he would have a first class ride, but that such would
depend upon the availability of first class seats.

A decision with absolutely nothing to support it is a nullity. It is open to direct

attack. 8 The law, however, solely insists that a decision state the "essential ultimate
facts" upon which the court's conclusion is drawn. 9 A court of justice is not hidebound
to write in its decision every bit and piece of evidence 10 presented by one party and
the other upon the issues raised. Neither is it to be burdened with the obligation "to
specify in the sentence the facts"which a party "considered as proved". 11 This is but a
part of the mental process from which the Court draws the essential ultimate facts. A
decision is not to be so clogged with details such that prolixity, if not confusion, may
result. So long as the decision of the Court of Appeals contains the necessary facts to
warrant its conclusions, it is no error for said court to withhold therefrom "any specific
finding of facts with respect to the evidence for the defense". Because as this Court
well observed, "There is no law that so requires". 12 Indeed, "the mere failure to
specify (in the decision) the contentions of the appellant and the reasons for refusing
to believe them is not sufficient to hold the same contrary to the requirements of the
provisions of law and the Constitution". It is in this setting that in Manigque, it was
held that the mere fact that the findings "were based entirely on the evidence for the
prosecution without taking into consideration or even mentioning the appellant's side
in the controversy as shown by his own testimony", would not vitiate the
judgment. 13 If the court did not recite in the decision the testimony of each witness
for, or each item of evidence presented by, the defeated party, it does not mean that
the court has overlooked such testimony or such item of evidence. 14 At any rate, the
legal presumptions are that official duty has been regularly performed, and that all the
matters within an issue in a case were laid before the court and passed upon by it. 15

These are matters which petitioner has thoroughly presented and discussed in its
brief before the Court of Appeals under its third assignment of error, which reads:
"The trial court erred in finding that plaintiff had confirmed reservations for, and a right
to, first class seats on the "definite" segments of his journey, particularly that from
Saigon to Beirut". 21
And, the Court of Appeals disposed of this contention thus:
Defendant seems to capitalize on the argument that the issuance of a firstclass ticket was no guarantee that the passenger to whom the same had
been issued, would be accommodated in the first-class compartment, for as
in the case of plaintiff he had yet to make arrangements upon arrival at every
station for the necessary first-class reservation. We are not impressed by
such a reasoning. We cannot understand how a reputable firm like
defendant airplane company could have the indiscretion to give out tickets it
never meant to honor at all. It received the corresponding amount in
payment of first-class tickets and yet it allowed the passenger to be at the
mercy of its employees. It is more in keeping with the ordinary course of
business that the company should know whether or riot the tickets it issues
are to be honored or not.22

Findings of fact, which the Court of Appeals is required to make, maybe defined as
"the written statement of the ultimate facts as found by the court ... and essential to
support the decision and judgment rendered thereon". 16They consist of the
court's "conclusions" with respect to the determinative facts in issue". 17 A question of
law, upon the other hand, has been declared as "one which does not call for an
examination of the probative value of the evidence presented by the parties." 18

Not that the Court of Appeals is alone. The trial court similarly disposed of petitioner's
contention, thus:

2. By statute, "only questions of law may be raised" in an appeal by certiorari from a

judgment of the Court of Appeals. 19 That judgment is conclusive as to the facts. It is
not appropriately the business of this Court to alter the facts or to review the
questions of fact. 20

On the fact that plaintiff paid for, and was issued a "First class" ticket, there can be no
question. Apart from his testimony, see plaintiff's Exhibits "A", "A-1", "B", "B-1," "B-2",
"C" and "C-1", and defendant's own witness, Rafael Altonaga, confirmed plaintiff's
testimony and testified as follows:

103

Q. In these tickets there are marks "O.K." From what you know, what does
this OK mean?

confirmed, then an air passenger is placed in the hollow of the hands of an airline.
What security then can a passenger have? It will always be an easy matter for an
airline aided by its employees, to strike out the very stipulations in the ticket, and say
that there was a verbal agreement to the contrary. What if the passenger had a
schedule to fulfill? We have long learned that, as a rule, a written document speaks a
uniform language; that spoken word could be notoriously unreliable. If only to achieve
stability in the relations between passenger and air carrier, adherence to the ticket so
issued is desirable. Such is the case here. The lower courts refused to believe the
oral evidence intended to defeat the covenants in the ticket.

A. That the space is confirmed.

Q. Confirmed for first class?
A. Yes, "first class". (Transcript, p. 169)
xxx

xxx

xxx

The foregoing are the considerations which point to the conclusion that there are facts
upon which the Court of Appeals predicated the finding that respondent Carrascoso
had a first class ticket and was entitled to a first class seat at Bangkok, which is a
stopover in the Saigon to Beirut leg of the flight. 27 We perceive no "welter of
distortions by the Court of Appeals of petitioner's statement of its position", as
charged by petitioner. 28 Nor do we subscribe to petitioner's accusation that
respondent Carrascoso "surreptitiously took a first class seat to provoke an
issue". 29 And this because, as petitioner states, Carrascoso went to see the Manager
at his office in Bangkok "to confirm my seat and because from Saigon I was told again
to see the Manager". 30 Why, then, was he allowed to take a first class seat in the
plane at Bangkok, if he had no seat? Or, if another had a better right to the seat?

Defendant tried to prove by the testimony of its witnesses Luis Zaldariaga and Rafael
Altonaga that although plaintiff paid for, and was issued a "first class" airplane ticket,
the ticket was subject to confirmation in Hongkong. The court cannot give credit to the
testimony of said witnesses. Oral evidence cannot prevail over written evidence, and
plaintiff's Exhibits "A", "A-l", "B", "B-l", "C" and "C-1" belie the testimony of said
witnesses, and clearly show that the plaintiff was issued, and paid for, a first class
ticket without any reservation whatever.
Furthermore, as hereinabove shown, defendant's own witness Rafael Altonaga
testified that the reservation for a "first class" accommodation for the plaintiff was
confirmed. The court cannot believe that after such confirmation defendant had a
verbal understanding with plaintiff that the "first class" ticket issued to him by
defendant would be subject to confirmation in Hongkong. 23

4. Petitioner assails respondent court's award of moral damages. Petitioner's

trenchant claim is that Carrascoso's action is planted upon breach of contract; that to
authorize an award for moral damages there must be an averment of fraud or bad
faith;31 and that the decision of the Court of Appeals fails to make a finding of bad
faith. The pivotal allegations in the complaint bearing on this issue are:

We have heretofore adverted to the fact that except for a slight difference of a few
pesos in the amount refunded on Carrascoso's ticket, the decision of the Court of
First Instance was affirmed by the Court of Appeals in all other respects. We hold the
view that such a judgment of affirmance has merged the judgment of the lower
court. 24Implicit in that affirmance is a determination by the Court of Appeals that the
proceeding in the Court of First Instance was free from prejudicial error and "all
questions raised by the assignments of error and all questions that might have been
raised are to be regarded as finally adjudicated against the appellant". So also, the
judgment affirmed "must be regarded as free from all error". 25 We reached this policy
construction because nothing in the decision of the Court of Appeals on this point
would suggest that its findings of fact are in any way at war with those of the trial
court. Nor was said affirmance by the Court of Appeals upon a ground or grounds
different from those which were made the basis of the conclusions of the trial court. 26

3. That ... plaintiff entered into a contract of air carriage with the Philippine
Air Lines for a valuable consideration, the latter acting as general agents for
and in behalf of the defendant, under which said contract, plaintiff was
entitled to, as defendant agreed to furnish plaintiff, First Class passage on
defendant's plane during the entire duration of plaintiff's tour of Europe with
Hongkong as starting point up to and until plaintiff's return trip to Manila, ... .
4. That, during the first two legs of the trip from Hongkong to Saigon and
from Saigon to Bangkok, defendant furnished to the plaintiff First Class
accommodation but only after protestations, arguments and/or insistence
were made by the plaintiff with defendant's employees.

If, as petitioner underscores, a first-class-ticket holder is not entitled to a first class

seat, notwithstanding the fact that seat availability in specific flights is therein

5. That finally, defendant failed to provide First Class passage, but instead
furnished plaintiff only TouristClass accommodations from Bangkok to

104

Teheran and/or Casablanca, ... the plaintiff has been compelled by

defendant's employees to leave the First Class accommodation berths at
Bangkok after he was already seated.

That the plaintiff was forced out of his seat in the first class compartment of
the plane belonging to the defendant Air France while at Bangkok, and was
transferred to the tourist class not only without his consent but against his
will, has been sufficiently established by plaintiff in his testimony before the
court, corroborated by the corresponding entry made by the purser of the
plane in his notebook which notation reads as follows:

6. That consequently, the plaintiff, desiring no repetition of the inconvenience

and embarrassments brought by defendant's breach of contract was forced
to take a Pan American World Airways plane on his return trip from Madrid to
Manila.32
xxx

xxx

"First-class passenger was forced to go to the tourist class against

his will, and that the captain refused to intervene",

xxx
and by the testimony of an eye-witness, Ernesto G. Cuento, who was a copassenger. The captain of the plane who was asked by the manager of
defendant company at Bangkok to intervene even refused to do so. It is
noteworthy that no one on behalf of defendant ever contradicted or denied
this evidence for the plaintiff. It could have been easy for defendant to
present its manager at Bangkok to testify at the trial of the case, or yet to
secure his disposition; but defendant did neither. 37

2. That likewise, as a result of defendant's failure to furnish First Class

accommodations aforesaid, plaintiff suffered inconveniences, embarrassments, and
humiliations, thereby causing plaintiff mental anguish, serious anxiety, wounded
feelings, social humiliation, and the like injury, resulting in moral damages in the
amount of P30,000.00. 33
xxx

xxx

xxx

The Court of appeals further stated

The foregoing, in our opinion, substantially aver: First, That there was a contract to
furnish plaintiff a first class passage covering, amongst others, the Bangkok-Teheran
leg; Second, That said contract was breached when petitioner failed to furnish first
class transportation at Bangkok; and Third, that there was bad faith when petitioner's
employee compelled Carrascoso to leave his first class accommodation berth "after
he was already, seated" and to take a seat in the tourist class, by reason of which he
suffered inconvenience, embarrassments and humiliations, thereby causing him
mental anguish, serious anxiety, wounded feelings and social humiliation, resulting in
moral damages. It is true that there is no specific mention of the term bad faith in the
complaint. But, the inference of bad faith is there, it may be drawn from the facts and
circumstances set forth therein. 34 The contract was averred to establish the relation
between the parties. But the stress of the action is put on wrongful expulsion.

Neither is there evidence as to whether or not a prior reservation was made

by the white man. Hence, if the employees of the defendant at Bangkok sold
a first-class ticket to him when all the seats had already been taken, surely
the plaintiff should not have been picked out as the one to suffer the
consequences and to be subjected to the humiliation and indignity of being
ejected from his seat in the presence of others. Instead of explaining to the
white man the improvidence committed by defendant's employees, the
manager adopted the more drastic step of ousting the plaintiff who was then
safely ensconsced in his rightful seat. We are strengthened in our belief that
this probably was what happened there, by the testimony of defendant's
witness Rafael Altonaga who, when asked to explain the meaning of the
letters "O.K." appearing on the tickets of plaintiff, said "that the space is
confirmed for first class. Likewise, Zenaida Faustino, another witness for
defendant, who was the chief of the Reservation Office of defendant,
testified as follows:

Quite apart from the foregoing is that (a) right the start of the trial, respondent's
counsel placed petitioner on guard on what Carrascoso intended to prove: That while
sitting in the plane in Bangkok, Carrascoso was oustedby petitioner's manager who
gave his seat to a white man; 35 and (b) evidence of bad faith in the fulfillment of the
contract was presented without objection on the part of the petitioner. It is, therefore,
unnecessary to inquire as to whether or not there is sufficient averment in the
complaint to justify an award for moral damages. Deficiency in the complaint, if any,
was cured by the evidence. An amendment thereof to conform to the evidence is not
even required. 36 On the question of bad faith, the Court of Appeals declared:

"Q How does the person in the ticket-issuing office know what
reservation the passenger has arranged with you?
A They call us up by phone and ask for the confirmation." (t.s.n., p.
247, June 19, 1959)

105

In this connection, we quote with approval what the trial Judge has said on
this point:

class" seat that he was occupying to, again using the words of the
witness Ernesto G. Cuento, a "white man" whom he (defendant's
Manager) wished to accommodate, and the defendant has not
proven that this "white man" had any "better right" to occupy the
"first class" seat that the plaintiff was occupying, duly paid for, and
for which the corresponding "first class" ticket was issued by the
defendant to him.40

Why did the, using the words of witness Ernesto G. Cuento, "white
man" have a "better right" to the seat occupied by Mr. Carrascoso?
The record is silent. The defendant airline did not prove "any
better", nay, any right on the part of the "white man" to the "First
class" seat that the plaintiff was occupying and for which he paid
and was issued a corresponding "first class" ticket.

5. The responsibility of an employer for the tortious act of its employees need not be
essayed. It is well settled in law. 41 For the willful malevolent act of petitioner's
manager, petitioner, his employer, must answer. Article 21 of the Civil Code says:

If there was a justified reason for the action of the defendant's

Manager in Bangkok, the defendant could have easily proven it by
having taken the testimony of the said Manager by deposition, but
defendant did not do so; the presumption is that evidence willfully
suppressed would be adverse if produced [Sec. 69, par (e), Rules
of Court]; and, under the circumstances, the Court is constrained to
find, as it does find, that the Manager of the defendant airline in
Bangkok not merely asked but threatened the plaintiff to throw him
out of the plane if he did not give up his "first class" seat because
the said Manager wanted to accommodate, using the words of the
witness Ernesto G. Cuento, the "white man".38

ART. 21. Any person who willfully causes loss or injury to another in a
manner that is contrary to morals, good customs or public policy shall
compensate the latter for the damage.
In parallel circumstances, we applied the foregoing legal precept; and, we held that
upon the provisions of Article 2219 (10), Civil Code, moral damages are
recoverable. 42
6. A contract to transport passengers is quite different in kind and degree from any
other contractual relation. 43And this, because of the relation which an air-carrier
sustains with the public. Its business is mainly with the travelling public. It invites
people to avail of the comforts and advantages it offers. The contract of air carriage,
therefore, generates a relation attended with a public duty. Neglect or malfeasance of
the carrier's employees, naturally, could give ground for an action for damages.

It is really correct to say that the Court of Appeals in the quoted portion first
transcribed did not use the term "bad faith". But can it be doubted that the
recital of facts therein points to bad faith? The manager not only prevented
Carrascoso from enjoying his right to a first class seat; worse, he imposed
his arbitrary will; he forcibly ejected him from his seat, made him suffer the
humiliation of having to go to the tourist class compartment - just to give way
to another passenger whose right thereto has not been established.
Certainly, this is bad faith. Unless, of course, bad faith has assumed a
meaning different from what is understood in law. For, "bad faith"
contemplates a "state of mind affirmatively operating with furtive design or
with some motive of self-interest or will or for ulterior purpose." 39

Passengers do not contract merely for transportation. They have a right to be treated
by the carrier's employees with kindness, respect, courtesy and due consideration.
They are entitled to be protected against personal misconduct, injurious language,
indignities and abuses from such employees. So it is, that any rule or discourteous
conduct on the part of employees towards a passenger gives the latter an action for
damages against the carrier. 44

And if the foregoing were not yet sufficient, there is the express finding
of bad faith in the judgment of the Court of First Instance, thus:

Thus, "Where a steamship company 45 had accepted a passenger's check, it was a

breach of contract and a tort, giving a right of action for its agent in the presence of
third persons to falsely notify her that the check was worthless and demand payment
under threat of ejection, though the language used was not insulting and she was not
ejected." 46 And this, because, although the relation of passenger and carrier is
"contractual both in origin and nature" nevertheless "the act that breaks the contract
may be also a tort". 47 And in another case, "Where a passenger on a railroad train,
when the conductor came to collect his fare tendered him the cash fare to a point

The evidence shows that the defendant violated its contract of

transportation with plaintiff in bad faith, with the aggravating
circumstances that defendant's Manager in Bangkok went to the
extent of threatening the plaintiff in the presence of many
passengers to have him thrown out of the airplane to give the "first

106

where the train was scheduled not to stop, and told him that as soon as the train
reached such point he would pay the cash fare from that point to destination, there
was nothing in the conduct of the passenger which justified the conductor in using
insulting language to him, as by calling him a lunatic," 48 and the Supreme Court of
South Carolina there held the carrier liable for the mental suffering of said
passenger.1awphl.nt

COURT
I will allow that as part of his testimony. 49
Petitioner charges that the finding of the Court of Appeals that the purser made an
entry in his notebook reading "First class passenger was forced to go to the tourist
class against his will, and that the captain refused to intervene" is predicated upon
evidence [Carrascoso's testimony above] which is incompetent. We do not think so.
The subject of inquiry is not the entry, but the ouster incident. Testimony on the entry
does not come within the proscription of the best evidence rule. Such testimony is
admissible. 49a

Petitioner's contract with Carrascoso is one attended with public duty. The stress of
Carrascoso's action as we have said, is placed upon his wrongful expulsion. This is a
violation of public duty by the petitioner air carrier a case of quasi-delict. Damages
are proper.
7. Petitioner draws our attention to respondent Carrascoso's testimony, thus

Besides, from a reading of the transcript just quoted, when the dialogue happened,
the impact of the startling occurrence was still fresh and continued to be felt. The
excitement had not as yet died down. Statements then, in this environment, are
admissible as part of the res gestae. 50 For, they grow "out of the nervous excitement
and mental and physical condition of the declarant". 51 The utterance of the purser
regarding his entry in the notebook was spontaneous, and related to the
circumstances of the ouster incident. Its trustworthiness has been guaranteed. 52 It
thus escapes the operation of the hearsay rule. It forms part of the res gestae.

Q You mentioned about an attendant. Who is that attendant and purser?

A When we left already that was already in the trip I could not help it.
So one of the flight attendants approached me and requested from me my
ticket and I said, What for? and she said, "We will note that you transferred
to the tourist class". I said, "Nothing of that kind. That is tantamount to
accepting my transfer." And I also said, "You are not going to note anything
there because I am protesting to this transfer".

At all events, the entry was made outside the Philippines. And, by an employee of
petitioner. It would have been an easy matter for petitioner to have contradicted
Carrascoso's testimony. If it were really true that no such entry was made, the
deposition of the purser could have cleared up the matter.

Q Was she able to note it?

A No, because I did not give my ticket.

We, therefore, hold that the transcribed testimony of Carrascoso is admissible in

evidence.

Q About that purser?

8. Exemplary damages are well awarded. The Civil Code gives the court ample power
to grant exemplary damages in contracts and quasi- contracts. The only condition
is that defendant should have "acted in a wanton, fraudulent, reckless, oppressive, or
malevolent manner." 53 The manner of ejectment of respondent Carrascoso from his
first class seat fits into this legal precept. And this, in addition to moral damages.54

A Well, the seats there are so close that you feel uncomfortable and you
don't have enough leg room, I stood up and I went to the pantry that was
next to me and the purser was there. He told me, "I have recorded the
incident in my notebook." He read it and translated it to me because it
was recorded in French "First class passenger was forced to go to the
tourist class against his will, and that the captain refused to intervene."

9. The right to attorney's fees is fully established. The grant of exemplary damages
justifies a similar judgment for attorneys' fees. The least that can be said is that the
courts below felt that it is but just and equitable that attorneys' fees be given. 55 We do
not intend to break faith with the tradition that discretion well exercised as it was
here should not be disturbed.

Mr. VALTE
I move to strike out the last part of the testimony of the witness because the
best evidence would be the notes. Your Honor.

107

10. Questioned as excessive are the amounts decreed by both the trial court and the
Court of Appeals, thus: P25,000.00 as moral damages; P10,000.00, by way of
exemplary damages, and P3,000.00 as attorneys' fees. The task of fixing these
amounts is primarily with the trial court. 56 The Court of Appeals did not interfere with
the same. The dictates of good sense suggest that we give our imprimatur thereto.
Because, the facts and circumstances point to the reasonableness thereof.57

In August 1988, Clarita lost her credit card. FEBTC was forthwith informed. In order to
replace the lost card, Clarita submitted an affidavit of loss. In cases of this nature, the
bank's internal security procedures and policy would appear to be to meanwhile so
record the lost card, along with the principal card, as a "Hot Card" or "Cancelled
Card" in its master file.
On 06 October 1988, Luis tendered a despedida lunch for a close friend, a FilipinoAmerican, and another guest at the Bahia Rooftop Restaurant of the Hotel
Intercontinental Manila. To pay for the lunch, Luis presented his FAREASTCARD to
the attending waiter who promptly had it verified through a telephone call to the
bank's Credit Card Department. Since the card was not honored, Luis was forced to
pay in cash the bill amounting to P588.13. Naturally, Luis felt embarrassed by this
incident.

On balance, we say that the judgment of the Court of Appeals does not suffer from
reversible error. We accordingly vote to affirm the same. Costs against petitioner. So
ordered.
Concepcion, C.J., Reyes, J.B.L., Barrera, Dizon, Regala, Makalintal, Zaldivar and
Castro,
JJ.,
concur.
Bengzon, J.P., J., took no part.

In a letter, dated 11 October 1988, private respondent Luis Luna, through counsel,
demanded from FEBTC the payment of damages. Adrian V. Festejo, a vice-president
of the bank, expressed the bank's apologies to Luis. In his letter, dated 03 November
1988, Festejo, in part, said:

Republic of the Philippines

SUPREME COURT
Manila

In cases when a card is reported to our office as lost, FAREASTCARD

undertakes the necessary action to avert its unauthorized use (such as
tagging the card as hotlisted), as it is always our intention to protect our
cardholders.

EN BANC

An investigation of your case however, revealed that FAREASTCARD failed

to inform you about its security policy. Furthermore, an overzealous
employee of the Bank's Credit Card Department did not consider the
possibility that it may have been you who was presenting the card at that
time (for which reason, the unfortunate incident occurred). 1

G.R. No. 108164 February 23, 1995

FAR EAST BANK AND TRUST COMPANY, petitioner,

vs.
THE HONORABLE COURT OF APPEALS, LUIS A. LUNA and CLARITA S.

Festejo also sent a letter to the Manager of the Bahia Rooftop Restaurant to assure
the latter that private respondents were "very valued clients" of FEBTC. William
Anthony King, Food and Beverage Manager of the Intercontinental Hotel, wrote back
to say that the credibility of private respondent had never been "in question." A copy
of this reply was sent to Luis by Festejo.

LUNA, respondents.

VITUG, J.:
Still evidently feeling aggrieved, private respondents, on 05 December 1988, filed a
complaint for damages with the Regional Trial Court ("RTC") of Pasig against FEBTC.

Some time in October 1986, private respondent Luis A. Luna applied for, and was
accorded, a FAREASTCARD issued by petitioner Far East Bank and Trust Company
("FEBTC") at its Pasig Branch. Upon his request, the bank also issued a
supplemental card to private respondent Clarita S. Luna.

On 30 March 1990, the RTC of Pasig, given the foregoing factual settings, rendered a
decision ordering FEBTC to pay private respondents (a) P300,000.00 moral
damages; (b) P50,000.00 exemplary damages; and (c) P20,000.00 attorney's fees.

108

On appeal to the Court of Appeals, the appellate court affirmed the decision of the
trial court.

Art. 21. Any person who wilfully causes loss or injury to another in a manner
that is contrary to morals, good customs or public policy shall compensate
the latter for the damage.

Its motion for reconsideration having been denied by the appellate court, FEBTC has
come to this Court with this petition for review.

Article 21 of the Code, it should be observed, contemplates a conscious act to cause

harm. Thus, even if we are to assume that the provision could properly relate to a
breach of contract, its application can be warranted only when the defendant's
disregard of his contractual obligation is so deliberate as to approximate a degree of
misconduct certainly no less worse than fraud or bad faith. Most importantly, Article
21 is a mere declaration of a general principle in human relations that clearly must, in
any case, give way to the specific provision of Article 2220 of the Civil Code
authorizing the grant of moral damages in culpa contractual solely when the breach is
due to fraud or bad faith.

There is merit in this appeal.

In culpa contractual, moral damages may be recovered where the defendant is shown
to have acted in bad faith or with malice in the breach of the contract. 2 The Civil Code
provides:
Art. 2220. Willful injury to property may be a legal ground for awarding moral
damages if the court should find that, under the circumstances, such
damages are justly due. The same rule applies to breaches of contract
where the defendant acted fraudulently or in bad faith. (Emphasis supplied)

Mr. Justice Jose B.L. Reyes, in his ponencia in Fores vs. Miranda 8 explained with
great clarity the predominance that we should give to Article 2220 in contractual
relations; we quote:

Bad faith, in this context, includes gross, but not simple, negligence. 3 Exceptionally, in
a contract of carriage, moral damages are also allowed in case of death of a
passenger attributable to the fault (which is presumed 4) of the common carrier. 5

Anent the moral damages ordered to be paid to the respondent, the same
must be discarded. We have repeatedly ruled (Cachero vs. Manila Yellow
Taxicab Co. Inc., 101 Phil. 523; 54 Off. Gaz., [26], 6599; Necesito, et al. vs.
Paras, 104 Phil., 75; 56 Off. Gaz., [23] 4023), that moral damages are not
recoverable in damage actions predicated on a breach of the contract of
transportation, in view of Articles 2219 and 2220 of the new Civil Code,
which provide as follows:

Concededly, the bank was remiss in indeed neglecting to personally inform Luis of his
own card's cancellation. Nothing in the findings of the trial court and the appellate
court, however, can sufficiently indicate any deliberate intent on the part of FEBTC to
cause harm to private respondents. Neither could FEBTC's negligence in failing to
give personal notice to Luis be considered so gross as to amount to malice or bad
faith.

Art. 2219. Moral damages may be recovered in the

following and analogous cases:

Malice or bad faith implies a conscious and intentional design to do a wrongful act for
a dishonest purpose or moral obliquity; it is different from the negative idea of
negligence in that malice or bad faith contemplates a state of mind affirmatively
operating with furtive design or ill will. 6

(1) A criminal offense resulting in physical injuries;

(2) Quasi-delicts causing physical injuries;
xxx xxx xxx

We are not unaware of the previous rulings of this Court, such as in American
Express International, Inc., vs.Intermediate Appellate Court (167 SCRA 209)
and Bank of Philippine Islands vs. Intermediate Appellate Court(206 SCRA 408),
sanctioning the application of Article 21, in relation to Article 2217 and Article 2219 7 of
the Civil Code to a contractual breach similar to the case at bench. Article 21 states:

Art. 2220. Wilful injury to property may be a legal ground

for awarding moral damages if the court should find that,
under the circumstances, such damages are justly due.
The same rule applies to breaches of contract where the
defendant acted fraudulently or in bad faith.

109

By contrasting the provisions of these two articles it immediately becomes

apparent that:

The distinction between fraud, bad faith or malice in the sense of deliberate
or wanton wrong doing and negligence (as mere carelessness) is too
fundamental in our law to be ignored (Arts. 1170-1172); their consequences
being clearly differentiated by the Code.

(a) In case of breach of contract (including one of transportation) proof of

bad faith or fraud (dolus), i.e., wanton or deliberately injurious conduct, is
essential to justify an award of moral damages; and

Art. 2201. In contracts and quasi-contracts, the damages

for which the obligor who acted in good faith is liable shall
be those that are the natural and probable consequences
of the breach of the obligation, and which the parties have
foreseen or could have reasonably foreseen at the time
the obligation was constituted.

(b) That a breach of contract can not be considered included in the

descriptive term "analogous cases" used in Art. 2219; not only because Art.
2220 specifically provides for the damages that are caused contractual
breach, but because the definition of quasi-delict in Art. 2176 of the Code
expressly excludes the cases where there is a "preexisitng contractual
relations between the parties."

In case of fraud, bad faith, malice or wanton attitude, the

obligor shall be responsible for all damages which may be
reasonably attributed to the non-performance of the
obligation.

Art. 2176. Whoever by act or omission causes damage to

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

It is to be presumed, in the absence of statutory provision to the contrary,

that this difference was in the mind of the lawmakers when in Art. 2220 they
limited recovery of moral damages to breaches of contract in bad faith. It is
true that negligence may be occasionally so gross as to amount to malice;
but the fact must be shown in evidence, and a carrier's bad faith is not to be
lightly inferred from a mere finding that the contract was breached through
negligence of the carrier's employees.

The exception to the basic rule of damages now under consideration is a

mishap resulting in the death of a passenger, in which case Article 1764
makes the common carrier expressly subject to the rule of Art. 2206, that
entitles the spouse, descendants and ascendants of the deceased
passenger to "demand moral damages for mental anguish by reason of the
death of the deceased" (Necesito vs. Paras, 104 Phil. 84, Resolution on
motion to reconsider, September 11, 1958). But the exceptional rule of Art.
1764 makes it all the more evident that where the injured passenger does
not die, moral damages are not recoverable unless it is proved that the
carrier was guilty of malice or bad faith. We think it is clear that the mere
carelessness of the carrier's driver does not per se constitute or justify an
inference of malice or bad faith on the part of the carrier; and in the case at
bar there is no other evidence of such malice to support the award of moral
damages by the Court of Appeals. To award moral damages for breach of
contract, therefore, without proof of bad faith or malice on the part of the
defendant, as required by Art. 2220, would be to violate the clear provisions
of the law, and constitute unwarranted judicial legislation.

The Court has not in the process overlooked another rule that a quasi-delict can be
the cause for breaching a contract that might thereby permit the application of
applicable principles on tort 9 even where there is a pre-existing contract between the
plaintiff and the defendant (Phil. Airlines vs. Court of Appeals, 106 SCRA 143;
Singson vs. Bank of Phil. Islands, 23 SCRA 1117; and Air France vs. Carrascoso, 18
SCRA 155). This doctrine, unfortunately, cannot improve private respondents' case
for it can aptly govern only where the act or omission complained of would constitute
an actionable tort independently of the contract. The test (whether a quasi-delict can
be deemed to underlie the breach of a contract) can be stated thusly: Where, without
a pre-existing contract between two parties, an act or omission can nonetheless
amount to an actionable tort by itself, the fact that the parties are contractually bound
is no bar to the application of quasi-delict provisions to the case. Here, private
respondents' damage claim is predicated solely on their contractual relationship;
without such agreement, the act or omission complained of cannot by itself be held to
stand as a separate cause of action or as an independent actionable tort.

xxx xxx xxx

110

The Court finds, therefore, the award of moral damages made by the court a quo,
affirmed by the appellate court, to be inordinate and substantially devoid of legal
basis.

Republic of the Philippines

SUPREME COURT
Manila

Exemplary or corrective damages, in turn, are intended to serve as an example or as

correction for the public good in addition to moral, temperate, liquidated or
compensatory damages (Art. 2229, Civil Code; seePrudenciado vs. Alliance
Transport System, 148 SCRA 440; Lopez vs. Pan American World Airways, 16 SCRA
431). In criminal offenses, exemplary damages are imposed when the crime is
committed with one or more aggravating circumstances (Art. 2230, Civil Code).
In quasi-delicts, such damages are granted if the defendant is shown to have been so
guilty of gross negligence as to approximate malice (See Art. 2231, Civil Code; CLLC
E.G. Gochangco Workers Union vs. NLRC, 161 SCRA 655; Globe Mackay Cable and
Radio Corp. vs. CA, 176 SCRA 778). In contracts and quasi-contracts, the court may
award exemplary damages if the defendant is found to have acted in a wanton,
fraudulent, reckless, oppressive, or malevolent manner (Art. 2232, Civil Code; PNB
vs. Gen. Acceptance and Finance Corp., 161 SCRA 449).

SECOND DIVISION

G.R. No. 84698 February 4, 1992

PHILIPPINE SCHOOL OF BUSINESS ADMINISTRATION, JUAN D. LIM,

BENJAMIN P. PAULINO, ANTONIO M. MAGTALAS, COL. PEDRO SACRO and LT.
M. SORIANO, petitioners,

vs.
COURT OF APPEALS, HON. REGINA ORDOEZ-BENITEZ, in her capacity as
Presiding Judge of Branch 47, Regional Trial Court, Manila, SEGUNDA R.
BAUTISTA and ARSENIA D. BAUTISTA, respondents.

Given the above premises and the factual circumstances here obtaining, it would also
be just as arduous to sustain the exemplary damages granted by the courts below
(see De Leon vs. Court of Appeals, 165 SCRA 166).

Balgos and Perez for petitioners.

Nevertheless, the bank's failure, even perhaps inadvertent, to honor its credit card
issued to private respondent Luis should entitle him to recover a measure of damages
sanctioned under Article 2221 of the Civil Code providing thusly:

Collantes, Ramirez & Associates for private respondents.

Art. 2221. Nominal damages are adjudicated in order that a right of the
plaintiff, which has been violated or invaded by the defendant, may be
vindicated or recognized, and not for the purpose of indemnifying the plaintiff
for any loss suffered by him.

PADILLA, J.:
A stabbing incident on 30 August 1985 which caused the death of Carlitos Bautista
while on the second-floor premises of the Philippine School of Business
Administration (PSBA) prompted the parents of the deceased to file suit in the
Regional Trial Court of Manila (Branch 47) presided over by Judge (now Court of
Appeals justice) Regina Ordoez-Benitez, for damages against the said PSBA and its
corporate officers. At the time of his death, Carlitos was enrolled in the third year
commerce course at the PSBA. It was established that his assailants were not
members of the school's academic community but were elements from outside the
school.

Reasonable attorney's fees may be recovered where the court deems such recovery
to be just and equitable (Art. 2208, Civil Code). We see no issue of sound discretion
on the part of the appellate court in allowing the award thereof by the trial court.
WHEREFORE, the petition for review is given due course. The appealed decision is
MODIFIED by deleting the award of moral and exemplary damages to private
respondents; in its stead, petitioner is ordered to pay private respondent Luis A. Luna
an amount of P5,000.00 by way of nominal damages. In all other respects, the
appealed decision is AFFIRMED. No costs.

Specifically, the suit impleaded the PSBA and the following school authorities: Juan
D. Lim (President), Benjamin P. Paulino (Vice-President), Antonio M. Magtalas
(Treasurer/Cashier), Col. Pedro Sacro (Chief of Security) and a Lt. M. Soriano

SO ORDERED.

111

(Assistant Chief of Security). Substantially, the plaintiffs (now private respondents)

sought to adjudge them liable for the victim's untimely demise due to their alleged
negligence, recklessness and lack of security precautions, means and methods
before, during and after the attack on the victim. During the proceedings a quo, Lt. M.
Soriano terminated his relationship with the other petitioners by resigning from his
position in the school.

to the last paragraph of Article 2180 by "proving that they observed

all the diligence to prevent damage." This can only be done at a
trial on the merits of the case. 5
While we agree with the respondent appellate court that the motion to dismiss the
complaint was correctly denied and the complaint should be tried on the merits, we do
not however agree with the premises of the appellate court's ruling.

Defendants a quo (now petitioners) sought to have the suit dismissed, alleging that
since they are presumably sued under Article 2180 of the Civil Code, the complaint
states no cause of action against them, as jurisprudence on the subject is to the effect
that academic institutions, such as the PSBA, are beyond the ambit of the rule in the
afore-stated article.

Article 2180, in conjunction with Article 2176 of the Civil Code, establishes the rule
of in loco parentis. This Court discussed this doctrine in the afore-cited cases
of Exconde, Mendoza, Palisoc and, more recently, in Amadora vs.Court of
Appeals. 6 In all such cases, it had been stressed that the law (Article 2180) plainly
provides that the damage should have been caused or inflicted by pupils or
students of he educational institution sought to be held liable for the acts of its pupils
or students while in its custody. However, this material situation does not exist in the
present case for, as earlier indicated, the assailants of Carlitos were not students of
the PSBA, for whose acts the school could be made liable.

The respondent trial court, however, overruled petitioners' contention and thru an
order dated 8 December 1987, denied their motion to dismiss. A subsequent motion
for reconsideration was similarly dealt with by an order dated 25 January 1988.
Petitioners then assailed the trial court's disposition before the respondent appellate
court which, in a decision * promulgated on 10 June 1988, affirmed the trial court's
orders. On 22 August 1988, the respondent appellate court resolved to deny the
petitioners' motion for reconsideration. Hence, this petition.

However, does the appellate court's failure to consider such material facts mean the
exculpation of the petitioners from liability? It does not necessarily follow.

At the outset, it is to be observed that the respondent appellate court primarily

anchored its decision on the law ofquasi-delicts, as enunciated in Articles 2176 and
2180 of the Civil Code. 1 Pertinent portions of the appellate court's now assailed ruling
state:

When an academic institution accepts students for enrollment, there is established

a contract between them, resulting in bilateral obligations which both parties are
bound to comply with. 7 For its part, the school undertakes to provide the student with
an education that would presumably suffice to equip him with the necessary tools and
skills to pursue higher education or a profession. On the other hand, the student
covenants to abide by the school's academic requirements and observe its rules and
regulations.

Article 2180 (formerly Article 1903) of the Civil Code is an adoption

from the old Spanish Civil Code. The comments of Manresa and
learned authorities on its meaning should give way to present day
changes. The law is not fixed and flexible (sic); it must be dynamic.
In fact, the greatest value and significance of law as a rule of
conduct in (sic) its flexibility to adopt to changing social conditions
and its capacity to meet the new challenges of progress.

Institutions of learning must also meet the implicit or "built-in" obligation of providing
their students with an atmosphere that promotes or assists in attaining its primary
undertaking of imparting knowledge. Certainly, no student can absorb the intricacies
of physics or higher mathematics or explore the realm of the arts and other sciences
when bullets are flying or grenades exploding in the air or where there looms around
the school premises a constant threat to life and limb. Necessarily, the school must
ensure that adequate steps are taken to maintain peace and order within the campus
premises and to prevent the breakdown thereof.

Construed in the light of modern day educational system, Article

2180 cannot be construed in its narrow concept as held in the old
case
of Exconde
vs. Capuno 2 and Mercado
vs. Court
of
3
Appeals; hence, the ruling in the Palisoc 4 case that it should apply
to all kinds of educational institutions, academic or vocational.

Because the circumstances of the present case evince a contractual relation between
the PSBA and Carlitos Bautista, the rules on quasi-delict do not really govern. 8 A
perusal of Article 2176 shows that obligations arising from quasi-delicts or tort, also
known as extra-contractual obligations, arise only between parties not otherwise

At any rate, the law holds the teachers and heads of the school
staff liable unless they relieve themselves of such liability pursuant

112

bound by contract, whether express or implied. However, this impression has not
prevented this Court from determining the existence of a tort even when there obtains
a contract. In Air France vs. Carrascoso (124 Phil. 722), the private respondent was
awarded damages for his unwarranted expulsion from a first-class seat aboard the
petitioner airline. It is noted, however, that the Court referred to the petitioner-airline's
liability as one arising from tort, not one arising from a contract of carriage. In
effect, Air Franceis authority for the view that liability from tort may exist even if there
is a contract, for the act that breaks the contract may be also a tort. (Austro-America
S.S. Co. vs. Thomas, 248 Fed. 231).

In the circumstances obtaining in the case at bar, however, there is, as yet, no finding
that the contract between the school and Bautista had been breached thru the
former's negligence in providing proper security measures. This would be for the trial
court to determine. And, even if there be a finding of negligence, the same could give
rise generally to a breach of contractual obligation only. Using the test
of Cangco, supra, the negligence of the school would not be relevant absent a
contract. In fact, that negligence becomes material only because of the contractual
relation between PSBA and Bautista. In other words, a contractual relation is a
condition sine qua nonto the school's liability. The negligence of the school cannot
exist independently of the contract, unless the negligence occurs under the
circumstances set out in Article 21 of the Civil Code.

This view was not all that revolutionary, for even as early as 1918, this Court was
already of a similar mind. InCangco vs. Manila Railroad (38 Phil. 780), Mr. Justice
Fisher elucidated thus:

This Court is not unmindful of the attendant difficulties posed by the obligation of
schools, above-mentioned, for conceptually a school, like a common carrier, cannot
be an insurer of its students against all risks. This is specially true in the populous
student communities of the so-called "university belt" in Manila where there have
been reported several incidents ranging from gang wars to other forms of
hooliganism. It would not be equitable to expect of schools to anticipate all types of
violent trespass upon their premises, for notwithstanding the security measures
installed, the same may still fail against an individual or group determined to carry out
a nefarious deed inside school premises and environs. Should this be the case, the
school may still avoid liability by proving that the breach of its contractual obligation to
the students was not due to its negligence, here statutorily defined to be the omission
of that degree of diligence which is required by the nature of the obligation and
corresponding to the circumstances of persons, time and place. 9

The field of non-contractual obligation is much broader than that of

contractual obligation, comprising, as it does, the whole extent of
juridical human relations. These two fields, figuratively speaking,
concentric; that is to say, the mere fact that a person is bound to
another by contract does not relieve him from extra-contractual
liability to such person. When such a contractual relation exists the
obligor may break the contract under such conditions that the same
act which constitutes a breach of the contract would have
constituted the source of an extra-contractual obligation had no
contract existed between the parties.
Immediately what comes to mind is the chapter of the Civil Code on Human
Relations, particularly Article 21, which provides:

As the proceedings a quo have yet to commence on the substance of the private
respondents' complaint, the record is bereft of all the material facts. Obviously, at this
stage, only the trial court can make such a determination from the evidence still to
unfold.

Any person who wilfully causes loss or injury to another in a

manner that is contrary to morals, good custom or public
policy shall compensate the latter for the damage. (emphasis
supplied).

WHEREFORE, the foregoing premises considered, the petition is DENIED. The court
of origin (RTC, Manila, Br. 47) is hereby ordered to continue proceedings consistent
with this ruling of the Court. Costs against the petitioners.

Air France penalized the racist policy of the airline which emboldened the petitioner's
employee to forcibly oust the private respondent to cater to the comfort of a white
man who allegedly "had a better right to the seat." In Austro-American, supra, the
public embarrassment caused to the passenger was the justification for the Circuit
Court of Appeals, (Second Circuit), to award damages to the latter. From the
foregoing, it can be concluded that should the act which breaches a contract be done
in bad faith and be violative of Article 21, then there is a cause to view the act as
constituting a quasi-delict.

SO ORDERED
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION

113

transferring the said remains to a newly purchased family plot also

at the Manila Memorial Park Cemetery, the concrete vault encasing
the coffin of the deceased was removed from its niche underground
with the assistance of certain employees of defendant-appellant
(sic); that as the concrete vault was being raised to the surface,
plaintiffs-appellants discovered that the concrete vault had a hole
approximately three (3) inches in diameter near the bottom of one
of the walls closing out the width of the vault on one end and that
for a certain length of time (one hour, more or less), water drained
out of the hole; that because of the aforesaid discovery, plaintiffsappellants became agitated and upset with concern that the water
which had collected inside the vault might have risen as it in fact did
rise, to the level of the coffin and flooded the same as well as the
remains of the deceased with ill effects thereto; that pursuant to an
authority granted by the Municipal Court of Paraaque, Metro
Manila on September 14, 1978, plaintiffs-appellants with the
assistance of licensed morticians and certain personnel of
defendant-appellant (sic) caused the opening of the concrete vault
on September 15, 1978; that upon opening the vault, the following
became apparent to the plaintiffs-appellants: (a) the interior walls of
the concrete vault showed evidence of total flooding; (b) the coffin
was entirely damaged by water, filth and silt causing the wooden
parts to warp and separate and to crack the viewing glass panel
located directly above the head and torso of the deceased; (c) the
entire lining of the coffin, the clothing of the deceased, and the
exposed parts of the deceased's remains were damaged and soiled
by the action of the water and silt and were also coated with filth.

G.R. No. 98695 January 27, 1993

JUAN J. SYQUIA, CORAZON C. SYQUIA, CARLOTA C. SYQUIA, CARLOS C.

SYQUIA and ANTHONY C. SYQUIA, petitioners,

vs.
THE HONORABLE COURT OF APPEALS, and THE MANILA MEMORIAL
PARK CEMETERY, INC., respondents.
Pacis & Reyes Law Offices for petitioners.
Augusto S. San Pedro & Ari-Ben C. Sebastian for private respondents.

CAMPOS, JR., J.:

Herein petitioners, Juan J. Syquia and Corazon C. Syquia, Carlota C. Syquia, Carlos
C. Syquia, and Anthony Syquia, were the parents and siblings, respectively, of the
deceased Vicente Juan Syquia. On March 5, 1979, they filed a complaint 1 in the then
Court of First Instance against herein private respondent, Manila Memorial Park
Cemetery, Inc. for recovery of damages arising from breach of contract and/or quasidelict. The trial court dismissed the complaint.
The antecedent facts, as gathered by the respondent Court, are as follows:

Due to the alleged unlawful and malicious breach by the defendantappellee of its obligation to deliver a defect-free concrete vault
designed to protect the remains of the deceased and the coffin
against the elements which resulted in the desecration of
deceased's grave and in the alternative, because of defendantappellee's gross negligence conformably to Article 2176 of the New
Civil Code in failing to seal the concrete vault, the complaint prayed
that judgment be rendered ordering defendant-appellee to pay
plaintiffs-appellants P30,000.00 for actual damages, P500,000.00
for moral damages, exemplary damages in the amount determined
by the court, 20% of defendant-appellee's total liability as attorney's
fees, and expenses of litigation and costs of suit. 2

On March 5, 1979, Juan, Corazon, Carlota and Anthony all

surnamed Syquia, plaintiff-appellants herein, filed a complaint for
damages against defendant-appellee, Manila Memorial Park
Cemetery, Inc.
The complaint alleged among others, that pursuant to a Deed of
Sale (Contract No. 6885) dated August 27, 1969 and Interment
Order No. 7106 dated July 21, 1978 executed between plaintiffappellant Juan J. Syquia and defendant-appellee, the former, father
of deceased Vicente Juan J. Syquia authorized and instructed
defendant-appellee to inter the remains of deceased in the Manila
Memorial Park Cemetery in the morning of July 25, 1978
conformably and in accordance with defendant-appellant's (sic)
interment procedures; that on September 4, 1978, preparatory to

114

In dismissing the complaint, the trial court held that the contract between the parties
did not guarantee that the cement vault would be waterproof; that there could be no

quasi-delict because the defendant was not guilty of any fault or negligence, and
because there was a pre-existing contractual relation between the Syquias and
defendant Manila Memorial Park Cemetery, Inc.. The trial court also noted that the
father himself, Juan Syquia, chose the gravesite despite knowing that said area had
to be constantly sprinkled with water to keep the grass green and that water would
eventually seep through the vault. The trial court also accepted the explanation given
by defendant for boring a hole at the bottom side of the vault: "The hole had to be
bored through the concrete vault because if it has no hole the vault will (sic) float and
the grave would be filled with water and the digging would caved (sic) in the earth, the
earth would caved (sic) in the (sic) fill up the grave." 3

At the bottom of the entire proceedings is the act of boring a hole by private
respondent on the vault of the deceased kin of the bereaved petitioners. The latter
allege that such act was either a breach of private respondent's contractual obligation
to provide a sealed vault, or, in the alternative, a negligent act which constituted a
quasi-delict. Nonetheless, petitioners claim that whatever kind of negligence private
respondent has committed, the latter is liable for desecrating the grave of petitioners'
dead.
In the instant case, We are called upon to determine whether the Manila Memorial
Park Cemetery, Inc., breached its contract with petitioners; or, alternatively, whether
private respondent was guilty of a tort.

From this judgment, the Syquias appealed. They alleged that the trial court erred in
holding that the contract allowed the flooding of the vault; that there was no
desecration; that the boring of the hole was justifiable; and in not awarding damages.

We understand the feelings of petitioners and empathize with them. Unfortunately,

however, We are more inclined to answer the foregoing questions in the negative.
There is not enough ground, both in fact and in law, to justify a reversal of the
decision of the respondent Court and to uphold the pleas of the petitioners.

The Court of Appeals in the Decision 4 dated December 7, 1990 however, affirmed the
judgment of dismissal. Petitioner's motion for reconsideration was denied in a
Resolution dated April 25, 1991. 5

With respect to herein petitioners' averment that private respondent has

committed culpa aquiliana, the Court of Appeals found no negligent act on the part of
private respondent to justify an award of damages against it. Although a pre-existing
contractual relation between the parties does not preclude the existence of a culpa
aquiliana, We find no reason to disregard the respondent's Court finding that there
was no negligence.

Unsatisfied with the respondent Court's decision, the Syquias filed the instant petition.
They allege herein that the Court of Appeals committed the following errors when it:
1. held that the contract and the Rules and Resolutions of private
respondent allowed the flooding of the vault and the entrance
thereto of filth and silt;

Art. 2176. Whoever by act or omission causes damage to another,

there being fault or negligence, is obliged to pay for the damage
done. Such fault or negligence, if there is no pre-existing
contractual relation between the parties, is called a quasidelict . . . . (Emphasis supplied).

2. held that the act of boring a hole was justifiable and corollarily,
when it held that no act of desecration was committed;
3. overlooked and refused to consider relevant, undisputed facts,
such as those which have been stipulated upon by the parties,
testified to by private respondent's witnesses, and admitted in the
answer, which could have justified a different conclusion;

In this case, it has been established that the Syquias and the Manila
Memorial Park Cemetery, Inc., entered into a contract entitled "Deed of Sale
and Certificate of Perpetual Care" 6 on August 27, 1969. That agreement
governed the relations of the parties and defined their respective rights and
obligations. Hence, had there been actual negligence on the part of the
Manila Memorial Park Cemetery, Inc., it would be held liable not for a quasidelict orculpa aquiliana, but for culpa contractual as provided by Article 1170
of the Civil Code, to wit:

4. held that there was no tort because of a pre-existing contract and

the absence of fault/negligence; and
5. did not award the P25,000.00 actual damages which was agreed
upon by the parties, moral and exemplary damages, and attorney's
fees.

Those who in the performance of their obligations are guilty of

fraud, negligence, or delay, and those who in any manner
contravene the tenor thereof, are liable for damages.

115

The Manila Memorial Park Cemetery, Inc. bound itself to provide the concrete box to
be send in the interment. Rule 17 of the Rules and Regulations of private respondent
provides that:

terms of their contract, which is the law between them (Rizal

Commercial Banking Corporation vs. Court of Appeals, et al. 178
SCRA 739). Where there is nothing in the contract which is contrary
to law, morals, good customs, public order, or public policy, the
validity of the contract must be sustained (Phil. American Insurance
Co. vs. Judge Pineda, 175 SCRA 416). Consonant with this ruling,
a contracting party cannot incur a liability more than what is
expressly specified in his undertaking. It cannot be extended by
implication, beyond the terms of the contract (Rizal Commercial
Banking Corporation vs. Court of Appeals, supra). And as a rule of
evidence, where the terms of an agreement are reduced to writing,
the document itself, being constituted by the parties as the
expositor of their intentions, is the only instrument of evidence in
respect of that agreement which the law will recognize, so long as
its (sic) exists for the purpose of evidence (Starkie, Ev., pp. 648,
655, Kasheenath vs. Chundy, 5 W.R. 68 cited in Francisco, Revised
Rules of Court in the Phil. p. 153, 1973 Ed.). And if the terms of the
contract are clear and leave no doubt upon the intention of the
contracting parties, the literal meaning of its stipulations shall
control (Santos vs. CA, et al., G. R. No. 83664, Nov. 13, 1989;
Prudential Bank & Trust Co. vs. Community Builders Co., Inc., 165
SCRA 285; Balatero vs. IAC, 154 SCRA 530). 13

Rule 17. Every earth interment shall be made enclosed in a

concrete box, or in an outer wall of stone, brick or concrete, the
actual installment of which shall be made by the employees of the
Association. 7
Pursuant to this above-mentioned Rule, a concrete vault was provided on July 27,
1978, the day before the interment, and was, on the same day, installed by private
respondent's employees in the grave which was dug earlier. After the burial, the vault
was covered by a cement lid.
Petitioners however claim that private respondent breached its contract with them as
the latter held out in the brochure it distributed that the . . . lot may hold single or
double internment (sic) underground in sealed concrete vault." 8 Petitioners claim that
the vault provided by private respondent was not sealed, that is, not waterproof.
Consequently, water seeped through the cement enclosure and damaged everything
inside it.
We do not agree. There was no stipulation in the Deed of Sale and Certificate of
Perpetual Care and in the Rules and Regulations of the Manila Memorial Park
Cemetery, Inc. that the vault would be waterproof. Private respondent's witness, Mr.
Dexter Heuschkel, explained that the term "sealed" meant "closed." 9 On the other
hand, the word "seal" is defined as . . . any of various closures or fastenings . . . that
cannot be opened without rupture and that serve as a check against tampering or
unauthorized opening." 10 The meaning that has been given by private respondent to
the word conforms with the cited dictionary definition. Moreover, it is also quite clear
that "sealed" cannot be equated with "waterproof". Well settled is the rule that when
the terms of the contract are clear and leave no doubt as to the intention of the
contracting parties, then the literal meaning of the stipulation shall
control. 11 Contracts should be interpreted according to their literal meaning and
should not be interpreted beyond their obvious intendment. 12 As ruled by the
respondent Court:

We hold, therefore, that private respondent did not breach the tenor of its obligation to
the Syquias. While this may be so, can private respondent be liable for culpa
aquiliana for boring the hole on the vault? It cannot be denied that the hole made
possible the entry of more water and soil than was natural had there been no hole.
The law defines negligence as the "omission of that diligence which is required by the
nature of the obligation and corresponds with the circumstances of the persons, of the
time and of the place." 14 In the absence of stipulation or legal provision providing the
contrary, the diligence to be observed in the performance of the obligation is that
which is expected of a good father of a family.
The circumstances surrounding the commission of the assailed act boring of the
hole negate the allegation of negligence. The reason for the act was explained by
Henry Flores, Interment Foreman, who said that:

When plaintiff-appellant Juan J. Syquia affixed his signature to the

Deed of Sale (Exhibit "A") and the attached Rules and Regulations
(Exhibit "1"), it can be assumed that he has accepted defendantappellee's undertaking to merely provide a concrete vault. He can
not now claim that said concrete vault must in addition, also be
waterproofed (sic). It is basic that the parties are bound by the

Q It has been established in this particular case

that a certain Vicente Juan Syquia was interred
on July 25, 1978 at the Paraaque Cemetery of
the Manila Memorial Park Cemetery, Inc., will you

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please tell the Hon. Court what or whether you

have participation in connection with said
internment (sic)?

LIGHT RAIL TRANSIT AUTHORITY & RODOLFO ROMAN, petitioners,

vs.
MARJORIE NAVIDAD, Heirs of the Late NICANOR NAVIDAD & PRUDENT
SECURITY AGENCY, respondents.

A A day before Juan (sic) Syquia was buried our

personnel dug a grave. After digging the next
morning a vault was taken and placed in the
grave and when the vault was placed on the
grave a hole was placed on the vault so that
water could come into the vault because it was
raining heavily then because the vault has no
hole the vault will float and the grave would be
filled with water and the digging would caved (sic)
in and the earth, the earth would (sic) caved in
and fill up the grave. 15 (Emphasis ours)

DECISION
VITUG, J.:
The case before the Court is an appeal from the decision and resolution of the Court
of Appeals, promulgated on 27 April 2000 and 10 October 2000, respectively, in CAG.R. CV No. 60720, entitled "Marjorie Navidad and Heirs of the Late Nicanor Navidad
vs. Rodolfo Roman, et. al.," which has modified the decision of 11 August 1998 of the
Regional Trial Court, Branch 266, Pasig City, exonerating Prudent Security Agency
(Prudent) from liability and finding Light Rail Transit Authority (LRTA) and Rodolfo
Roman liable for damages on account of the death of Nicanor Navidad.

Except for the foreman's opinion that the concrete vault may float should there be a
heavy rainfall, from the above-mentioned explanation, private respondent has
exercised the diligence of a good father of a family in preventing the accumulation of
water inside the vault which would have resulted in the caving in of earth around the
grave filling the same with earth.

On 14 October 1993, about half an hour past seven oclock in the evening, Nicanor
Navidad, then drunk, entered the EDSA LRT station after purchasing a "token"
(representing payment of the fare). While Navidad was standing on the platform near
the LRT tracks, Junelito Escartin, the security guard assigned to the area approached
Navidad. A misunderstanding or an altercation between the two apparently ensued
that led to a fist fight. No evidence, however, was adduced to indicate how the fight
started or who, between the two, delivered the first blow or how Navidad later fell on
the LRT tracks. At the exact moment that Navidad fell, an LRT train, operated by
petitioner Rodolfo Roman, was coming in. Navidad was struck by the moving train,
and he was killed instantaneously.

Thus, finding no evidence of negligence on the part of private respondent, We find no

reason to award damages in favor of petitioners.
In the light of the foregoing facts, and construed in the language of the applicable
laws and jurisprudence, We are constrained to AFFIRM in toto the decision of the
respondent Court of Appeals dated December 7, 1990. No costs.

On 08 December 1994, the widow of Nicanor, herein respondent Marjorie Navidad,

along with her children, filed a complaint for damages against Junelito Escartin,
Rodolfo Roman, the LRTA, the Metro Transit Organization, Inc. (Metro Transit), and
Prudent for the death of her husband. LRTA and Roman filed a counterclaim against
Navidad and a cross-claim against Escartin and Prudent. Prudent, in its answer,
denied liability and averred that it had exercised due diligence in the selection and
supervision of its security guards.

SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila

The LRTA and Roman presented their evidence while Prudent and Escartin, instead
of presenting evidence, filed a demurrer contending that Navidad had failed to prove
that Escartin was negligent in his assigned task. On 11 August 1998, the trial court
rendered its decision; it adjudged:

FIRST DIVISION
G.R. No. 145804

February 6, 2003

117

e) P20,000.00 as and for attorneys fees."2

"WHEREFORE, judgment is hereby rendered in favor of the plaintiffs and against the
defendants Prudent Security and Junelito Escartin ordering the latter to pay jointly
and severally the plaintiffs the following:

The appellate court ratiocinated that while the deceased might not have then as yet
boarded the train, a contract of carriage theretofore had already existed when the
victim entered the place where passengers were supposed to be after paying the fare
and getting the corresponding token therefor. In exempting Prudent from liability, the
court stressed that there was nothing to link the security agency to the death of
Navidad. It said that Navidad failed to show that Escartin inflicted fist blows upon the
victim and the evidence merely established the fact of death of Navidad by reason of
his having been hit by the train owned and managed by the LRTA and operated at the
time by Roman. The appellate court faulted petitioners for their failure to present
expert evidence to establish the fact that the application of emergency brakes could
not have stopped the train.

"a) 1) Actual damages of P44,830.00;

2) Compensatory damages of P443,520.00;
3) Indemnity for the death of Nicanor Navidad in the sum of P50,000.00;
"b) Moral damages of P50,000.00;
"c) Attorneys fees of P20,000;

The appellate court denied petitioners motion for reconsideration in its resolution of
10 October 2000.

"d) Costs of suit.

"The complaint against defendants LRTA and Rodolfo Roman are dismissed for lack
of merit.

In their present recourse, petitioners recite alleged errors on the part of the appellate
court; viz:

"The compulsory counterclaim of LRTA and Roman are likewise dismissed."1

"I.

Prudent appealed to the Court of Appeals. On 27 August 2000, the appellate court
promulgated its now assailed decision exonerating Prudent from any liability for the
death of Nicanor Navidad and, instead, holding the LRTA and Roman jointly and
severally liable thusly:

THE HONORABLE COURT OF APPEALS GRAVELY ERRED BY DISREGARDING

THE FINDINGS OF FACTS BY THE TRIAL COURT
"II.

"WHEREFORE, the assailed judgment is hereby MODIFIED, by exonerating the

appellants from any liability for the death of Nicanor Navidad, Jr. Instead, appellees
Rodolfo Roman and the Light Rail Transit Authority (LRTA) are held liable for his
death and are hereby directed to pay jointly and severally to the plaintiffs-appellees,
the following amounts:

THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN FINDING THAT

PETITIONERS ARE LIABLE FOR THE DEATH OF NICANOR NAVIDAD, JR.
"III.
THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN FINDING THAT
RODOLFO ROMAN IS AN EMPLOYEE OF LRTA."3

a) P44,830.00 as actual damages;

b) P50,000.00 as nominal damages;

Petitioners would contend that the appellate court ignored the evidence and the
factual findings of the trial court by holding them liable on the basis of a sweeping
conclusion that the presumption of negligence on the part of a common carrier was
not overcome. Petitioners would insist that Escartins assault upon Navidad, which
caused the latter to fall on the tracks, was an act of a stranger that could not have
been foreseen or prevented. The LRTA would add that the appellate courts

c) P50,000.00 as moral damages;

d) P50,000.00 as indemnity for the death of the deceased; and

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conclusion on the existence of an employer-employee relationship between Roman

and LRTA lacked basis because Roman himself had testified being an employee of
Metro Transit and not of the LRTA.

the course of the trip but for so long as the passengers are within its premises and
where they ought to be in pursuance to the contract of carriage. 6 The statutory
provisions render a common carrier liable for death of or injury to passengers (a)
through the negligence or wilful acts of its employees or b) on account of wilful acts or
negligence of other passengers or of strangers if the common carriers employees
through the exercise of due diligence could have prevented or stopped the act or
omission.7 In case of such death or injury, a carrier is presumed to have been at fault
or been negligent, and8 by simple proof of injury, the passenger is relieved of the duty
to still establish the fault or negligence of the carrier or of its employees and the
burden shifts upon the carrier to prove that the injury is due to an unforeseen event or
to force majeure.9 In the absence of satisfactory explanation by the carrier on how the
accident occurred, which petitioners, according to the appellate court, have failed to
show, the presumption would be that it has been at fault, 10 an exception from the
general rule that negligence must be proved.11

Respondents, supporting the decision of the appellate court, contended that a

contract of carriage was deemed created from the moment Navidad paid the fare at
the LRT station and entered the premises of the latter, entitling Navidad to all the
rights and protection under a contractual relation, and that the appellate court had
correctly held LRTA and Roman liable for the death of Navidad in failing to exercise
extraordinary diligence imposed upon a common carrier.
Law and jurisprudence dictate that a common carrier, both from the nature of its
business and for reasons of public policy, is burdened with the duty of exercising
utmost diligence in ensuring the safety of passengers.4 The Civil Code, governing the
liability of a common carrier for death of or injury to its passengers, provides:

The foundation of LRTAs liability is the contract of carriage and its obligation to
indemnify the victim arises from the breach of that contract by reason of its failure to
exercise the high diligence required of the common carrier. In the discharge of its
commitment to ensure the safety of passengers, a carrier may choose to hire its own
employees or avail itself of the services of an outsider or an independent firm to
undertake the task. In either case, the common carrier is not relieved of its
responsibilities under the contract of carriage.

"Article 1755. A common carrier is bound to carry the passengers safely as far as
human care and foresight can provide, using the utmost diligence of very cautious
persons, with a due regard for all the circumstances.
"Article 1756. In case of death of or injuries to passengers, common carriers are
presumed to have been at fault or to have acted negligently, unless they prove that
they observed extraordinary diligence as prescribed in articles 1733 and 1755."

Should Prudent be made likewise liable? If at all, that liability could only be for tort
under the provisions of Article 2176 12 and related provisions, in conjunction with
Article 2180,13 of the Civil Code. The premise, however, for the employers liability is
negligence or fault on the part of the employee. Once such fault is established, the
employer can then be made liable on the basis of the presumption juris tantum that
the employer failed to exercise diligentissimi patris families in the selection and
supervision of its employees. The liability is primary and can only be negated by
showing due diligence in the selection and supervision of the employee, a factual
matter that has not been shown. Absent such a showing, one might ask further, how
then must the liability of the common carrier, on the one hand, and an independent
contractor, on the other hand, be described? It would be solidary. A contractual
obligation can be breached by tort and when the same act or omission causes the
injury, one resulting in culpa contractual and the other in culpa aquiliana, Article
219414 of the Civil Code can well apply.15 In fine, a liability for tort may arise even
under a contract, where tort is that which breaches the contract. 16 Stated differently,
when an act which constitutes a breach of contract would have itself constituted the
source of a quasi-delictual liability had no contract existed between the parties, the
contract can be said to have been breached by tort, thereby allowing the rules on tort
to apply.17

"Article 1759. Common carriers are liable for the death of or injuries to passengers
through the negligence or willful acts of the formers employees, although such
employees may have acted beyond the scope of their authority or in violation of the
orders of the common carriers.
"This liability of the common carriers does not cease upon proof that they exercised
all the diligence of a good father of a family in the selection and supervision of their
employees."
"Article 1763. A common carrier is responsible for injuries suffered by a passenger on
account of the willful acts or negligence of other passengers or of strangers, if the
common carriers employees through the exercise of the diligence of a good father of
a family could have prevented or stopped the act or omission."
The law requires common carriers to carry passengers safely using the utmost
diligence of very cautious persons with due regard for all circumstances.5 Such duty
of a common carrier to provide safety to its passengers so obligates it not only during

119

Regrettably for LRT, as well as perhaps the surviving spouse and heirs of the late
Nicanor Navidad, this Court is concluded by the factual finding of the Court of Appeals
that "there is nothing to link (Prudent) to the death of Nicanor (Navidad), for the
reason that the negligence of its employee, Escartin, has not been duly proven x x x."
This finding of the appellate court is not without substantial justification in our own
review of the records of the case.
There being, similarly, no showing that petitioner Rodolfo Roman himself is guilty of
any culpable act or omission, he must also be absolved from liability. Needless to say,
the contractual tie between the LRT and Navidad is not itself a juridical relation
between the latter and Roman; thus, Roman can be made liable only for his own fault
or negligence.
The award of nominal damages in addition to actual damages is untenable. Nominal
damages are adjudicated in order that a right of the plaintiff, which has been violated

or invaded by the defendant, may be vindicated or recognized, and not for the
purpose of indemnifying the plaintiff for any loss suffered by him. 18 It is an established
rule that nominal damages cannot co-exist with compensatory damages.19
WHEREFORE, the assailed decision of the appellate court is AFFIRMED with
MODIFICATION but only in that (a) the award of nominal damages is DELETED and
(b) petitioner Rodolfo Roman is absolved from liability. No costs.
SO ORDERED.

Contents

DEFINITION OF TORTS UNDER PHILIPPINE LAW......................1

SERGIO F. NAGUIAT, doing business under the name and style SERGIO F. NAGUIAT ENT., INC., & CLARK FIELD TAXI,
INC., petitioners, vs. NATIONAL LABOR RELATIONS COMMISSION (THIRD DIVISION), NATIONAL ORGANIZATION OF WORKINGMEN
and its members, LEONARDO T. GALANG, et al., respondents. 1
LIWAYWAY VINZONS-CHATO, petitioner, vs. FORTUNE TOBACCO CORPORATION, respondent.

ELEMENTS OF TORTS............................................................13
ORLANDO D. GARCIA, JR., doing business under the name and style COMMUNITY DIAGNOSTIC CENTER and BU
CASTRO,1 Petitioners, vs. RANIDA D. SALVADOR and RAMON SALVADOR, Respondents. 13
LUCAS VS TUANO..............................................................17
OCEAN BUILDERS CONSTRUCTION CORP., and/or DENNIS HAO, Petitioners, vs. SPOUSES ANTONIO and ANICIA
CUBACUB, Respondents....................................................27
DISSENTING OPINION.....................................................29
BERSAMIN, J.:.................................................................29
CONCEPT OF QUASI-DELICT: HISTORICAL BACKGROUND.....37
FAUSTO BARREDO, petitioner, vs. SEVERINO GARCIA and TIMOTEA ALMARIO, respondents.
SCOPE OF QUASI-DELICT......................................................49
INTENTIONAL ACTS...............................................................49
JOSE CANGCO, plaintiff-appellant, vs. MANILA RAILROAD CO., defendant-appellee. 49
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37

NATIVIDAD V. ANDAMO.......................................................58
GASHEM SHOOKAT BAKSH..................................................61
DAMAGE TO PROPERTY.........................................................68
PORFIRIO P. CINCO,.............................................................68
ELEMENTS :..........................................................................71
DISTINGUISHING DELICT AND QUASI-DELICT........................71
OVERLAP BETWEEN DELICT AND QUASI-DELICT...................71
LG FOODS CORP VS HON. PHILADELFA..............................72
G.R. No. 158995...................................................................72
DISTINGUISHING CULPA AQUILIANA VS CULPA CONTRACTUAL75
SOURCE................................................................................ 75
BURDEN OF PROOF...............................................................75
FGU INSURANCE CORPORATION..........................................75
APPLICABILITY OF DOCTRINE OF APPROXIMATE CAUSE........78
VICENTE CALALAS.............................................................78
IS THERE AN INTERSECTION?...............................................80
PAZ FORES..........................................................................81
THE CONSOLIDATED BANK and TRUST CORPORATION, petitioner, vs. COURT OF APPEALS and L.C. DIAZ and COMPANY,
CPAs, respondents.............................................................84
AIR FRANCE.......................................................................89
FAR EAST BANK AND TRUST COMPANY................................95
PHILIPPINE SCHOOL OF BUSINESS ADMINISTRATION............98
JUAN J. SYQUIA................................................................100
LIGHT RAIL TRANSIT AUTHORITY & RODOLFO ROMAN......103

121