Republic of the Philippines On January 2, 1913, the plaintiffs, together with three companions, hired an

SUPREME COURT
Manila
EN BANC
G.R. No. L-10073 December 24, 1915
BUTARO YAMADA, plaintiff-appellee,
vs.
THE MANILA RAILROAD CO., defendant, and BACHRACH GARAGE &
TAXICAB CO., defendant-appellant.
G.R. No. L-10074 December 24, 1915
KENJIRO KARABAYASHI, plaintiff-appellee,
vs.
THE MANILA RAILROAD CO., defendant, and BACHRACH GARAGE &
TAXICAB CO., defendant-appellant.
G.R. No. L-10075 December 24, 1915
automobile from the defendant taxicab company for a trip to Cavite Viejo. The
automobile was secured at a certain price hour and was driven and controlled by a
chauffeur supplied by the taxicab company. The journey to Cavite Viejo was made
without incident but, on the return trip, while crossing the tracks of defendant railroad
company in the barrio of San Juan, municipality of Cavite Viejo, the automobile was
struck by a train and the plaintiffs injured.
The trial court dismissed the complaint on the merits as to the Manila Railroad
Company and held the defendant taxicab company liable for damages to the
plaintiffs in various amounts. The taxicab company appealed.
It appears from the record, and was found by the trial court, that the driver of the
automobile drove his machine upon the railroad tracks without observing the
precautions which ordinary care and prudence would require, without reducing
speed and without taking any precaution looking to determining whether there was
danger from a train or locomotive. The trial court accordingly found that the driver
was guilty of gross negligence and that said negligence was the proximate cause of
the accident. It also found that the driver had been, in effect, instructed by the
taxicab company to approach and pass over railroad tracks in the manner and form
followed and observed on the occasion in question, and that, for that reason, the
taxicab company was liable for the damages caused.

TAKUTARU UYEHARA, plaintiff-appellee, Several errors are assigned by the appellant. The first one relates to the finding of
vs. the trial court: "That the driver of the automobile did not slacken speed, which was
THE MANILA RAILROAD CO., defendant, and BACHRACH GARAGE & fast, upon approaching the railroad crossing, which was clearly visible and had to be
TAXICAB CO., defendant-appellant. approached on an upward grade, or take any other precaution to avert accident. ...
and I can but conclude that the driver of the automobile was grossly negligent and
careless in not taking such precaution as would have notified him of the coming of
D.R. Williams for appellant. the train. On the contrary, he proceeded with reckless speed and regardless of
Rohde and Wright for appellees. possible or threatened danger. If he had been driving the automobile at a proper rate
of speed for going over railroad crossing he could easily have stopped before going
over the railroad crossing after seeing the train."

MORELAND, J.:
The three cases dealt with in this decision differ in their facts only with respect to the
injury suffered by the respective plaintiffs. The law applicable to them is the same
and, at the request of counsel, they will be decided at the same time. Plaintiffs claim
damages against both the railroad and the garage company because of injuries
suffered by them in a collision between a train owned by and operated over tracks
belonging to the railroad company and an automobile the property of the Bachrach
Garage & Taxicab Co.
The argument of the appellant which is devoted to this findings seems to admit
impliedly at least that the driver of the automobile maintained his rate of speed as he
approached and went upon the railroad crossing; and that he took no precaution to
ascertain the approach of a train.1awphil.net
The appellant contended on the trial and offered evidence to prove that, on
approaching the railroad crossing from the direction in which the automobile was
travelling at the time, the view of the railroad tracks in both directions was obstructed
by bushes and trees growing alongside thereof, and that it was impossible for a
person approaching the crossing even though on guard, to detect by sight the
approach of a train. If that were the case, it was clearly the duty of the driver to
reduce the speed of his car and the noise thereof to such an extent that he would be
1
able to determine from the unrestricted and uninterrupted use of all his faculties
whether or not a train was near. It is the law that a person must use ordinary care
and prudence in passing over a railroad crossing. While we are not prepared to lay
down any absolute rule as to what precise acts of precaution are necessary to be
done or left undone by a person who may have need to pass over a railroad
crossing, we may say that it isalways incumbent on him to use ordinary care and
diligence. What acts are necessary to constitute such care and diligence must
depend on the circumstances of each particular case. The degree of care differs in
different cases. Greater care is necessary in crossing a road where the cars are
running at a high rate of speed and close together than where they are running at
less speed and remote from one another. But in every case due care should be
exercised. It is very possible that where, on approaching a crossing, the view of the
tracks in both directions is unobstructed for such a distance as to render it perfectly
safe to pass over without the use of any other faculty than sight, such use alone is
sufficient and it is not necessary to stop or even to slacken speed or listen. On the
other hand, where the view of the tracks is obstructed, them it is driver's duty to
slacken speed, to reduce the noise, if any, of the vehicle, to look and to listen, if
necessary, or do any other act necessary to determine that a train is not in
dangerous proximity to the crossing.
In the case at bar the appellant's own showing is to the effect that the view of the
track in the direction from which the train was coming was obstructed in such
manner that neither the track nor a train could be seen as a traveler approached the
crossing; and yet, in spite of that fact, the chauffeur drove upon the tracks without
investigation or precaution of any kind. The very fact that a train was approaching
and was so near as to collide with the automobile is strong evidence of the fact that
no precautions were taken to determine that fact. It is undoubted that if the driver
had taken the simplest means of permitting his own faculties to exercise themselves
fairly, there would have been no accident, as the presence of the train would have
been discovered in an instant; but he chose, rather, to give his senses no opportunity
to protect him or his passengers and drove on the track at full speed with all the
noise which an automobile produces at such speed on an upgrade and the sense of
hearing impaired by the rush of the wind. Railroad trains rarely pass over tracks
without noise and their presence, generally speaking, is easily detected by persons
who take ordinary precautions.
Under this assignment the appellant's main effort is being to the demonstration of the
fact that there was a custom established among automobile drivers of Manila by
which they habitually drove their cars over railroad crossings in the manner in which
the automobile was driven by defendant's servant on the occasion in controversy. To
prove that custom counsel presents the evidence of the president of the defendant
company, Mr. Bachrach, who testified on the trial that all of his drivers, including the
one in charge of the car on the night of the accident, operated cars in that manner
and that it was the custom among automobile drivers generally. Counsel also cites
the testimony of the witness Palido, living near the scene of the accident, who
testified that, as a general rule, automobiles passed over the railroad crossing
without changing speed. This testimony was corroborated by the defendant
company's driver who had the automobile in charge at the time of the occurrence.
Basing himself on this alleged custom counsel contends that "When a person does
what is usual and customary, i. e., proceeds as he and others engaged in a like
occupation have been accustomed to proceed, the action cannot be characterized
as reckless, nor, strictly speaking as negligent." To this the obvious reply may be
made, for the moment admitting the existence of the custom, that a practice which is
dangerous to human life cannot ripen into a custom which will protect anyone who
follows it. To go upon a railroad crossing without making any effort to ascertain the
approach of a train is so hazardous an act and one so dangerous to life, that no one
may be permitted to excuse himself who does it, provided injury result. One who
performs an act so inherently dangerous cannot, when an accident occurs, take
refuge behind the plea that others have performed the same act safely.
Under the second error assigned, the appellant contends with much vigor that the
plaintiffs cannot recover for the reason that the negligence of the driver of the
automobile, if any, was imputable to them, they having permitted the driver to
approach and pass over the railroad crossing without the use of ordinary care and
diligence to determine the proximity of a train or locomotive, and having made no
effort to caution or instruct him or compel him to take reasonable care in making the
crossing. With this contention we cannot agree. We think the better rule, and one
more consonant with the weight of authority, is that a person who hires a public
automobile and gives the driver direction as to the place to which he wishes to be
conveyed, but exercise no other control over the conduct of the driver, is not
responsible for acts of negligence of the latter or prevented from recovering for
injuries suffered from a collision between the automobile and a train, caused by the
negligence either of the locomotive engineer or the automobile driver. (Little vs.
Hackett, 116 U.S., 366.) The theory on which the negligence of the driver has in
some instances been imputed to the occupant of the vehicle is that, having trusted
the driver by selecting the particular conveyance, the plaintiff so far identified himself
with the owner and his servants that, in case of injury resulting from their negligence,
he was considered a party thereto. This was the theory upon which the case of
Thorogood vs. Bryan (8 C.B., 115) was decided, which is the leading case in favor of
the principle contended for by appellant. The Supreme Court of the United States,
however, in Little vs. Hackett (116 U.S., 366), had this to say concerning the ground
on which the Thorogood case was decided: "The truth is, the decision in
Thorogood vs. Bryan rests upon indefensible ground. The identification of the
passenger with the negligent driver or the owner, without his personal cooperation or
encouragement, is a gratuitous assumption. There is no such identity. The parties
are not in the same position. The owner of public conveyance is a carrier, and the
driver or the servant of the passenger, and his asserted identity with them is
contradicted by the daily experience of the world."
Further discussing the same question the court said: "There is no distinction in
principle whether the passenger be on public conveyance like a railroad train or an
omnibus, or be on a hack hired from a public stand in the street for a drive. Those on
a hack do not become responsible for the negligence of the driver if they exercise no
control over him further than to indicate the route they wish to travel or the places to
which they wish to go. If he is their agent so that his negligence can be imputed to
them to prevent their recovery against a third party, he must be their agent in all
2
other respects, so far as the management of the carriage is concerned, and
responsibility to third parties would attach to them for injuries caused by his
negligence in the course of his employment. But, as we have already stated,
responsibility cannot, within any recognized rules of law, be fastened upon one who
has in no way interfered with and the with and controlled in the matter causing the
injury. From the simple fact of hiring the carriage or riding in it no such liability can
arise. The party hiring or riding must in some way have cooperated in producing the
injury complained of before he incur any liability for it. 'If the law were otherwise,' as
said by Mr. Justice Depue in his elaborate opinion in the latest case in New Jersey,
'not only the hirer of the coach but also all the passengers in it would be under a
constraint to mount the box and superintend the conduct of the driver in the
management and control of his team, or be put for remedy exclusively to an action
against the irresponsible driver or equally irresponsible owner of a coach taken, it
may be, from a coach stand, for the consequences of an injury which was the
product of the cooperating wrongful acts of the driver and of a third person, and that
too, though the passengers were ignorant of the character of the driver, and of the
responsibility of the owner of the team, and strangers to the route over which they
were to be carried.' (New York, Lake Erie & Western Railroad vs. Steinbrenner, 47
N.J.L. [18 Vroom], 161, 171.)"
We are of the opinion, therefore, that the rule is as we have stated it. Ordinarily
where one rides in public vehicle with the driver thereof and is injured by the
negligence of a third person, to which negligence that of the driver contributes his
contributory negligence is not imputable to the passenger unless said passenger has
or is in the position to have and exercise some control over the driver with reference
to the matter wherein he was negligent. Whether the person injured exercises any
control over the conduct of the driver further than to indicate the place to which he
wishes to drive is a question of fact to be determined by the trial court on all of the
evidence in the case. (Duval vs. Railroad Co., 134 N. C., 331; Hampel vs. Detroit
etc. R. R. Co., 110 Am. St. Rep., 275; Cotton vs. Willmar etc. R. R. Co., 99 Minn.,
366; Shultz vs. Old Colony Street Ry. Co., 193 Mass., 309; Wilson vs. Puget Sound
Elec. Ry. Co., 52 Wash., 522; Johnson vs. Coey, 237 Ill., 88; Hindu vs. Steere, 209
Mass. 442.)
The appellant assigns as the third error the finding of the trial court "that the
defendant Manila Railroad Company was not guilty of negligence which contributed
to the causing of the accident complained of."
In this connection it appears that, prior to the beginning of the action now before us,
two actions were instituted, both growing out of the accident which forms the basis of
the actions before us: (1) A criminal action against the engineer of the train, in which
the engineer was acquitted; and (2) a civil action for damages by the garage and
taxicab company, the appellant herein, against the defendant railroad company, for
damages to the automobile which was destroyed as a result of the accident, in which
judgment was for defendant. There is evidence in the record showing that the
locomotive engineer gave due and timely signals on approaching the crossing in
question. The trial court found that the employees of the railroad company fully
performed their duty as the train approached the crossing on the night in question
and that, therefore, the railroad company in nowise contributed to the accident. We
do not believe that the record will justify us in a reversal of this finding. There is
abundant evidence to support it and we have nothing before us by which that
evidence may be impeached. That the bell was rung and the whistle was blown on
nearing the crossing, giving due and timely warning to all persons approaching, was
testified to not only by servants of the corporation but by passengers on the train. We
find nothing in the record which materially impairs the credibility of these witnesses
or to show that their evidence is improbable or unreasonable; and we would be going
far under such circumstances in discarding it and reversing a judgment based
thereon.
The appellant under this assignment of error presents other facts which he claims
show necessarily that the company was negligent. He asserts: "(1) That this accident
occurred in the heart of the barrio of San Juan (Cavite Viejo), within approximately
one hundred meters of the railroad station, that is, in a populous community; (2) that
the railroad company did not maintain either a flagman or protecting gates at the
grade crossing where the accident occurred, while the sign "Railroad Crossing" was
broken on the side toward the road; (3) that trees and undergrowth had been
permitted to grow on and adjoining the right of way and houses were constructed
thereon, in such manner as to obstruct the view of persons approaching the railroad
track until within a few meters thereof; and (4) that the approach to the crossing is
twisting, and on either side thereof are ditches about two meters deep."
With respect to the existence of trees and undergrowth on the railroad company's
right of way, the evidence is conflicting, plaintiff maintaining and attempting to prove
that such trees and undergrowth existed, while defendant company contended and
offered evidence to show that no such growth existed at the time of the accident. On
this conflict of evidence the trial court found: "Evidence on the part of the defendant
Bachrach Garage & Taxicab Co. is to the effect that the view from the crossing along
the track towards Manila was obstructed by bushes growing on the railroad right to
way along the track, while the preponderance of the evidence discloses that for a
distance of twelve or fifteen meters from the a view of the track for a considerable
distance is wholly unobstructed, and I can but conclude that the driver of the
unobstructed, and I can but conclude that the driver of the automobile was grossly
negligent and careless in not taking such precaution as would have notified him of
the coming of the train. On the contrary, he proceeded with reckless speed and
regardless of possible or threatened danger."
Here again we are met with a contradiction in the evidence of witnesses who, so far
as appears, are equally entitled to credit, which conflict has been resolved by the trial
court in favor of the witnesses for the defendant railroad company. Counsel for
appellant has failed to give any reason why we should we should accept the
testimony of appellant's witnesses rather than those of the railroad company and he
has also neglected to point out any error committed by the trial court in making its
finding in this regard. A careful examination of the record discloses no reason why
the judgment of the trial court on this point should be disturbed, there appearing
nothing on which we could base a judgment declaring that the trial court erred in
making its decision.
3
As to the other facts set forth on which appellant predicates negligence on the part of
the railroad company, we find them, even if admitted, to be insufficient to establish
negligence. It is not negligence on the part of the railroad company to maintain grade
crossing, even in populous district; nor is it negligence not to maintain a flagman at
such crossing. It is true that a railroad company is held to greater caution in the more
thronged streets of the densely populated portions of the city than in the less
frequented streets in suburban parts or in towns; but this does not mean that it is
negligence to maintain grade crossing in such densely populated portions or that it is
negligence not to maintain a flagman at crossings located in such districts. It simply
means that the company in operating its trains over such crossings must exercise
care commensurate with the use of crossings in any given locality.
The main contention of the appellant is based on the claim that, even admitting as
proved all of the facts alleged by the plaintiffs, the appellant is not liable. It is
maintained that up to the time the accident occurred the defendant taxicab company
had fully performed its duty to the public, it being undisputed in the record that the
driver was competent and had a long and satisfactory record, having driven cars for
the defendant for 5 or 6 years without accident or misadventure, and that his
negligence, if any, in attempting to pass over the crossing on the occasion before us,
cannot legally be imputed to the taxicab company so as to make it liable for the
damages resulting therefrom. In supporting of this argument the case of Johnson vs.
David (5 Phil., Rep., 663), is cited as determinative of the question under
consideration. The appellant, however, having denied the fact of negligence, we
might, before entering on a discussion of the applicability of the principles enunciated
in Johnson vs. David to the facts before us, repeat what we have already said, that it
appears from the record, and was found by the trial court, that the driver of the
automobile drove his machine upon the railroad tracks without observing the
precautions which ordinary care and prudence would have required. He made
substantially no effort toward ascertaining whether there was danger from a train or
locomotive. The trial court found, as was quite necessary under the facts, that the
driver was guilty of gross negligence and that such negligence was the proximate
cause of the accident. It also found that the taxicab company had permitted its
drivers to approach and pass over railroad tracks in the manner and form followed
and observed on the occasion in question until it had become a custom among its
drivers, known and sanctioned by the company; and that, for that reason, the taxicab
company was liable for the damages caused. We are of the opinion that the trial
court is fully supported in the finding that the conduct of the officials of the taxicab
company, and notably the president thereof, amounted, in law, to a sanction of the
custom established among its automobile drivers in passing over railroad crossings.
Counsel is met, therefore, at the opening of his discussion on this branch of the
case, with the question: Did the defendant taxicab company fully discharge its duty
when it furnished a suitable and proper car and selected driver who had been with
the company for 5 or 6 years and who had not had an accident or misadventure
before? We think not. It was the duty of the company not only to furnish a suitable
and proper car and select a competent operator, but also to supervise and, where
necessary, instruct him properly.
Returning now to the applicability of the case of Johnson vs. David to the facts
before us:
The Civil Code, in dealing with the liability of a master for the negligent acts of his
servant, makes a distinction between private individuals and public enterprises. (Art.
1903, Civil Code.) That article, together with the preceding article, is as follows:itc-
a1f
ART 1902. A person who by an act or omission causes damage to another
when there is fault or negligence shall be obliged to repair the damage so
done.
ART. 1903. The obligation imposed by the preceding article is demandable,
not only for personal acts and omissions, but also for the persons for whom
they should be responsible.
The father, and on his death or incapacity the mother is liable for the
damages caused by the minors who live with them.
Guardians are liable for the damages caused by minors or incapacitated
persons who are under their authority and live with them.
Owners or directors of an establishment or enterprise are equally liable for
the damages caused by their employees in the service of the branches in
which the latter may be employed or on account of their duties.
The State is liable in this sense when it acts through a special agent, but
not when the damage should have been caused by the official to whom
properly it pertained to do the act performed, in which case the provisions of
the proceeding article shall be applicable.
Finally, master or directors of arts and trades are liable for the damages
caused by their pupils or apprentices while they are under their custody.
The liability referred to in this articles shall cease when the persons
mentioned therein prove that they employed all the diligence of a good
father of a family to avoid the damage.
These two articles are found under chapter 2, title 16, of the Civil Code, dealing with
"obligations which arise from fault or negligence;" and set out the cases, generally
speaking, in which the master is liable for the acts of his servant. That chapter also
contains articles providing for liability for negligent acts of servants in special cases,
among them 1905, which provides that "the possessor of an animal, or the one who
uses it, is liable for the damages it may cause even when said animal escapes from
him or strays," but that this liability shall cease "in the case the damage should arise
4
from force majeure or from the fault of the person who may have suffered it;" 1906,
which declares that "the owner of a game preserve shall be liable for damages
caused by the game to neighboring estates, should he not have done what may
have been necessary to avoid increase of the same or should he have hindered the
efforts of the owners of said estates to hunt;" 1907, which provides for the liability of
the owner of a building "for damages which may result from the collapse of the whole
or a part thereof, if it should occur through the absence of necessary repairs;" 1908,
which states that "owners shall be liable for damages caused by the explosion of
machines which may not have been cared for with due diligence, and been placed in
a safe and proper place;" "by excessive smoke, which may be noxious to persons of
property;" "by the fall of trees, located in places of transit, when not caused by force
majeure;" "by the emanations of sewers or deposits of infectious matters, when
constructed without precautions proper for the place where they are located;" and
"the head of a family who dwells in a house, or in a part of the same, is liable for the
damages by the things which may be thrown or which may fall therefrom."
These are the only cases under the Civil Code in which damages may be recovered
from the master for the negligent of his servant. As is seen from a reading of article
1903, a person being driven about by his servant's negligent acts except under
certain circumstances. (Chapman vs. Underwood, 27 Phil., Rep., 374; Johnson vs.
David, supra.) On the other hand, the master is liable for the negligent acts of his
servant where he is the owner or director of a business or enterprise and the
negligent acts are committed while the servant is engaged in his master's
employment as such owner.
The distinction made in the Code has been observed, as would naturally be
expected, by the decisions of this court. In the case of Johnson vs. David, supra, we
held that the defendant was not liable for the acts of his servant in negligently driving
a horse and carriage against plaintiff, who was at the time riding a bicycle in the
streets of Manila, throwing him to the ground and injuring him and his bicycle. It
appeared in that case that the vehicle was owned by the defendant, that it was being
driven by the defendant's coachman on the private affairs of the owner, that it was
not a public conveyance driven for hire or as a part of a business or enterprise. In
that case we said: "It would seem, from an examination of these various provisions,
that the obligation to respond for the negligent acts of another was limited to the
particular cases mentioned; in other words, we are of the opinion and so hold that it
was the intention of the legislature in enacting said chapter 2 to enumerate all the
persons for whose negligent acts third persons are responsible. Article 1902
provides when a person himself is liable for negligence. Articles 1903, 1904, 1905,
1906, 1907, 1908, and 1910 provide when a person shall be liable for injuries
caused, not by his own negligence but by the negligence of other persons or things.
xxx xxx xxx
These sections do not include a liability on the part of the plaintiff for injuries resulting
from acts of negligence such as are complained of in the present cause . . . ."
These case of Chapman vs. Underwood, (27 Phil., Rep., 374) was similar in its facts
and the principles governing it, to that of Johnson vs. David. In that case the plaintiff,
while about to board a street car, was struck by an automobile which, at the time,
was being driven on the wrong side of the street. The automobile was in charge of
the servant of the owner, who was present in the automobile at the time the accident
occurred. The automobile was not a part of defendant's business nor was it being
used at the time as a part or adjunct of any business or enterprise owned or
conducted by him. Although the act of the driver was negligent, and was so declared
by this court, it was, nevertheless, held that the master was not liable for the results
of the act. We said:
The defendant, however, is not responsible for the negligence of his driver,
under the facts and circumstances of this case. As we have said in the case
of Johnson vs. David (5 Phil., Rep., 663), the driver does not fall within the
list of person in article 1903 of the Civil Code for whose acts the defendant
would be responsible.
Although in the David case the owner of the vehicle was not present at the
time the alleged negligent acts were committed by the driver, the same rule
applies where the owner is present, unless the negligent acts of the driver
are continued for such a length of time as to give the owner a reasonable
opportunity to observe them and to direct his driver to desist therefrom. An
owner who sits in his automobile, or other vehicle, and permits his driver to
continue in a violation of the law by the performance of negligent acts, after
he has had a reasonable opportunity to observe them and to direct that the
driver, becomes himself responsible for such acts. The owner of an
automobile who permits his chauffeur to drive up the Escolta, for example,
at a speed of 60 miles an hour, without any effort to stop him, although he
has had a reasonable opportunity to do so, becomes himself responsible,
both criminally and civilly, for the results produced by the acts of his
chauffeur. On the other hand, if the driver, by a sudden act of negligence,
and without the owner having a reasonable opportunity to prevent the act or
its continuance, injures a person or violates the criminal law, the owner of
the automobile, although present therein at the time the act was committed,
is not responsible, either civilly or criminally, therefor. The act complained of
must be continued in the presence of the owner for such a length of time
that the owner, by his acquiescence, makes his driver's act his own.
In the case before us it does not appear from the record that, from the time
the automobile took the wrong side of the road to the commission of the
injury, sufficient time intervened to afford the defendant an opportunity
correct the act of his driver. Instead, it appears with fair clearness that the
interval between the turning out to meet and pass the street car and the
happening of the accident was so short as not to be sufficient to charge
defendant with the negligence of the driver.
5
The case of Bahia vs. Litonjua and Leynes (30 Phil., Rep., 624), was a case of a
different character. There an automobile was being operated by the defendant as a
public vehicle carrying passengers from Balayan to Tuy (Province of Batangas) and
return for hire. On one to the trips, the machine, by reason of a defect in the steering
gear, refused to respond to the guidance of the driver and, as a result a child was run
over and killed. That case, as is seem at a glance, is quite different from the case of
Johnson vs. David and that of Chapman vs. Underwood, in that the automobile was
operated as a business or enterprise on which the defendant had entered for gain;
and this is the particular distinction which is made in article 1903 of the Civil Code
which holds the masters responsible for the negligent acts of the servant when the
master is the owner "of an establishment or enterprise," and the acts complained of
are committed within the scope of the servant's employment in such business. In the
case under discussion we held that, in addition to the requirement to furnish and use
proper and safe machines, it was the duty of a person or corporation operating
automobiles for hire to exercise ordinary care and diligence in the selection of the
drivers of his or its automobiles and in supervision over them while in his or its
employ, including the promulgation of proper rules and regulations and the
formulation and due publication of proper instructions for their guidance in cases
where such rules, regulations and the formulation and due publication of proper
instructions for their guidance in cases where such rules, regulations and instruction
are necessary. Discussion article 1903 of the Civil Code, which, as we have seen,
not only established liability in case of negligence but also provides when that liability
ceases, the court in that case said:
From this article two things are apparent: (1) That when an injury is caused
by the negligence of a servant or employee there instantly arises a
presumption of law that there was negligence on the part of the master or
employer either in the selection of the selection of the servant or employee
or in supervision over him after the selection, or both; and (2) that that
presumption is juris tantum and not juris et de jure and consequently may
be rebutted. It follows necessarily that if the employer shows to the
satisfaction of the court that in selection and supervision he has exercised
the care and diligence of a good father of a family, the presumption is
overcome and he is relieved from liability.
This theory bases the responsibility of the master ultimately on
his own negligence and not on that of his servant. This is the notable
peculiarity of the Spanish law of negligence. It is, of course, in striking
contrast to the American doctrine that, in relations with strangers, the
negligence of the servant is conclusively the negligence of the master.
In the case before us the death of the child caused by a defect in the
steering gear of the automobile immediately raised the presumption that
Leynes was negligent in selecting a defective automobile or in his failure to
maintain it in good condition after selection and the burden of proof was on
him to show that he had exercised the care of a good father of a family.
In that case we further said: "From the commencement of the use of the machine
until the accident occurred sufficient time had not elapsed to require an examination
of the machine by the defendant as a part of his duty of inspection and supervision.
While it does not appear that the defendant formulated rules and regulations for the
guidance of the drivers and gave them proper instructions, designed for the
protection of the public and the passengers, the evidence shows, as we have seen,
that the death of the child was not caused by a failure to promulgate rules and
regulations. It was caused by a defect in the machine as to which the defendant has
shown himself free from responsibility."
We, therefore, see that taxicab company did not perform its full duty when it
furnished a safe and proper car and a driver with a long and satisfactory record. It
failed to comply with one of the essential requirements of the law of negligence in
this jurisdiction, that of supervision and instruction, including the promulgation of
proper rules and regulations and the formulation and publication of proper
instructions for their guidance in cases where such rules and regulations and
instructions are necessary. To repeat, it was found by the trial court, and that finding
is fully sustained by the record, that it was the custom of the driver who operated the
machine on the night of the accident, to approach and pass over railroad crossings
without adequate precautions, and that such custom was known to and had been
sanctioned by the officials of the taxicab company, the president of the company
testifying that none of its drivers, especially the one who operated the car on the
night of the accident, were accustomed to stop or even reduce speed or take any
other precaution in approaching and passing over railroad crossings, no matter of
what nature, unless they heard "the signal of a car." He testified that he himself had
ridden behind several of his drivers, among them the one who handled the
automobile on the night of the accident, and that it was settled practice, to which he
made no objection and as to which he gave no instructions, to approach and pass
over railroad crossings without any effort to ascertain the proximity of a train. These
facts and circumstances bring the case within the doctrine enunciated in the Litonjua
case to which reference has already been made, and, at the same time, remove it
from that class of cases governed by Johnson vs. David. Not only has the defendant
taxicab company failed to rebut the presumption of negligence arising from the
carelessness of its servant, but it has, in effect, made those negligent acts its own by
having observed and known the custom of its drivers without disapproving it and
without issuing instructions designed to supersede it.
We are of the opinion that the trial court erred in fixing the amount of damages which
the plaintiffs suffered. Under the law, each of the plaintiffs, is entitled to recover the
time, doctors' bills and hospital bills and hospital bills and medicines, and any other
item of expense which it was found necessary to undergo by reason of the damages
sustained.
The plaintiff Butaro Yamada is entitled to be reimbursed for his hospital bill of P49,
for the P50 which he paid to Dr. Strahan, and for the loss of time which he suffered
at the rate of P100 a month. The trial court allowed him for certain alleged fees of
doctors and expenses in hospitals and at hot springs in Japan. He was also allowed
P150 alleged by him to have been paid to a Japanese doctor in Manila. We do not
6
believe that the record warrants these allowances. As to the expenses in Japan, we
may say that the injury occurred to plaintiff on the 2nd of January and he remained in
Manila for nearly 6 months before going to Japan. According to the testimony of Dr.
Strahan the plaintiff was in good physical condition long before he left this country for
Japan. His testimony is to the effect that the plaintiff suffered no permanent injuries,
the damage being limited to temporary shocks and bruises, and that he would be
ready for his usual occupation in about 3 months. According to plaintiff's own
testimony he went back to work 2 months after the injury, but, claiming he still felt
pains, went to Japan. We do not believe that we ought to accept the plaintiff's bare
statement as to his physical condition after leaving the Philippine Islands in defiance
of the testimony of Dr. Strahan as to his physical condition 3 months after the injury
was received and particularly in view of the fact that he returned to work at the end of
2 months. As to the P150 alleged to have been paid to a Japanese doctor in Manila,
we have grave doubts whether he had sufficiently proved that item of expenditure.
He does not give the name of the physician to whom he paid the money and he
presents no receipt or voucher from the person whom he paid. He made no
memorandum of the payment at the time or of the person to whom he paid it or of
the date on which it was paid. All of his testimony relating to the items which
constitute his damage was based on a memorandum made from memory on the
morning of the trial. It seems to us that where the sources of knowledge are to so
large an extent within the knowledge and control of the person who presents the
evidence, he should be held rather strictly to presenting the best evidence that the
circumstances permit. If he had offered the Japanese doctor as a witness or if he
had even produced receipts from him, the matter would have borne quite a different
aspect.
We are accordingly of the opinion that the judgment in favor of this plaintiff should
consist simply of the loss of time, amounting to 2 months at P100 a month, his
hospital bill of P49 and his doctor's bill of P50, in all P299, with costs.
With respect to the plaintiff Takutaru Uyehara, the judgment in his favor must be also
modified. Concerning his condition we have substantially the same testimony by the
same doctor that we had in the case of Yamada. There were no permanent injuries.
The plaintiff suffered merely from shock and bruises. He was quite recovered in 3
months. It appears that he was earning P200 a month at the time of his injury and
that his hospital expense, including attendance of a physician, was P350. We are
satisfied from the record that he is entitled to P600 for 3 months' loss of wages and
to P350 for hospital expenses and medical attendance. As to the claim for P150 paid
to a Japanese doctor, we have in substance the same circumstances found in
connection with the claim of the plaintiff Yamada, no name, no date, no
memorandum, no receipt; nothing but the testimony of the plaintiff himself based
upon date prepared from memory. It is worthy of note also that both this plaintiff and
plaintiff Yamada claim to have paid exactly the same amount to Japanese doctors in
Manila.
Judgment is hereby rendered in favor of the plaintiff Takutaru Uyehara for the sum of
P950, and costs.
With respect to the judgment in favor of the plaintiff Kenjiro Karabayashi, we are
clear that it must be reduced in amount. This plaintiff was able, immediately after the
accident occurred, to move about readily an to assist his injured companions. He did
not go to a hospital, or, so far as appeared, consult a physician until some time after
the accident. He alleges that he paid to Japanese doctors P310 and to massage
doctors P130, and that he paid P365 for medicines. The injury was received on the
2d of January, 1913, and this caution was commenced in October of the same year.
It seem to us incredible that the plaintiff, who suffered and suffers from no physical
injury testified to by any physician, should have paid out during that time more than
P800 for medicines and doctors. That sum exceeds the sums claimed to have been
paid out by the other plaintiffs, who were so badly injured that they were carried in a
semiconscious condition to the hospital and were unable to move without assistance
for some days.
This plaintiff complains of loss of memory as the only result of his injuries and claims
that he is unable to obtain a salary equivalent to that which he was receiving before
the accident. He presents no evidence of such loss of memory except his own
statement, his physical condition at the time of the trial being apparently perfect and
there being at that time no evidence, as he himself admitted, of loss of memory. He
presented no doctor to testify as to services rendered, indeed, he does not even
furnish the name of the person to whom the money was paid, and he shows no
receipts and produces no evidence except his own statement with respect to the
amount paid out for medicines. We believe that, under this testimony, no damages
should be allowed to this plaintiff except possibly salary for the short period during
which, by reason of shock, he may have been unable to render active service. He
testified that he lost two and one-half months' time, during which he did not work at
all, and that his services were worth P160 a month.
The judgment of the Court of First Instance with respect to this plaintiff, Kenjiro
Karabayashi, is modified and judgment in his favor and against the Bachrach Garage
& Taxicab Co. for P400 is hereby decreed, with costs.
It may be urged that the reductions in the amounts allowed the several plaintiffs by
the trial court are arbitrary, the evidence as to the damages sustained being
uncontradicted and the trial court having based its judgment thereon. It is clear,
however, that we are in no way interfering with the rule so many times laid down by
this court that we will not interfere with the judgment of the trial court as to the
credibility of witnesses except where it appears that the court overlooked or
misapplied facts or circumstances of weight and influence appearing in the case.
Here the trial court seems to have overlooked those facts and circumstances top
which we have adverted and which we have made the basis of the modification. It
nowhere appears in the decision of the trial court or elsewhere in the record that it
took any of those facts and circumstances into consideration. So ordered.
7
 specified acts of negligence on the part of the defendants and confined itself to the
question of whether or not a tire blow-out, by itself alone and without a showing as to
G.R. No. L-21486 May 14, 1966 the causative factors, would generate liability. In the present case, the cause of the
blow-out was known. The inner tube of the left front tire, according to petitioner's own
LA MALLORCA and PAMPANGA BUS COMPANY, petitioner, evidence and as found by the Court of Appeals "was pressed between the inner
vs. circle of the left wheel and the rim which had slipped out of the wheel." This was,
VALENTIN DE JESUS, MANOLO TOLENTINO and COURT OF said Court correctly held, a mechanical defect of the conveyance or a fault in its
APPEALS, respondents. equipment which was easily discoverable if the bus had been subjected to a more
thorough, or rigid check-up before it took to the road that morning.

Manuel O. Chan for petitioners.

Sixto T. Antonio for respondents. Then again both the trial court and the Court of Appeals found as a fact that the bus
was running quite fast immediately before the accident. Considering that the tire
which exploded was not new petitioner describes it as "hindi masyadong kalbo,"
MAKALINTAL, J.:
or not so very worn out the plea of caso fortuito cannot be
entertained.1wph1.t
La Mallorca and Pampanga Bus Company, Inc., commonly known as La Mallorca-
Pambusco, filed this appeal bycertiorari from the decision of the Court of Appeals
The second issue raised by petitioner is already a settled one. In this jurisdiction
which affirmed that rendered by the Court of First Instance of Bulacan in its civil case
moral damages are recoverable by reason of the death of a passenger caused by
No. 2100, entitled "Valentin de Jesus and Manolo Tolentino vs. La Mallorca-
the breach of contract of a common carrier, as provided in Article 1764, in relation to
Pambusco." The court a quo sentenced the defendant, now petitioner, "to pay to
Article 2206, of the Civil Code. These articles have been applied by this Court in a
plaintiffs the amount of P2,132.50 for actual damages; P14,400.00 as compensatory
number of cases, among them Necesito, etc. vs. Paras, et al., L-10605-06, June 30,
damages; P10,000.00 to each plaintiff by way of moral damages; and P3,000.00 as
1958; Mercado vs. Lira, L-13328-29, Sept. 29, 1961; Villa-Rey Transit vs. Bello, L-
counsel fees."
18957, April 23, 1963.

Two errors are attributed to the appellate Court: (1) "in sustaining the decision (of the
Wherefore, the judgment appealed from is affirmed, with costs against petitioners.
court a quo) holding that the petitioners were liable for the accident which was
caused by a blow-out of one of the tires of the bus and in not considering the same
as caso fortuito," and (2) in holding petitioners liable for moral damages.

The suit arose by reason of the death of Lolita de Jesus, 20-year old daughter of
Valentin de Jesus and wife of Manolo Tolentino, in a head-on collision between
petitioner's bus, on which she was a passenger, and a freight truck traveling in the
opposite direction, in a barrio in Marilao Bulacan, in the morning of October 8, 1959.
The immediate cause of the collision was the fact that the driver of the bus lost G.R. No. L-15688 November 19, 1921
control of the wheel when its left front tire suddenly exploded.
REMIGIO RODRIGUEZ, ET AL., plaintiffs-appellees,
Petitioner maintains that a tire blow-out is a fortuitous event and gives rise to no vs.
liability for negligence, citing the rulings of the Court of Appeals in Rodriguez vs. Red THE MANILA RAILROAD COMPANY, defendant-appellant.
Line Transportation Co., CA-G.R. No. 8136, December 29, 1954, and People vs.
Palapad, CA-G.R. No. 18480, June 27, 1958. These rulings, however, not only are Orense & Vera for appellant.
not not binding on this Court but were based on considerations quite different from Domingo Imperial for appellees.
those that obtain in the at bar. The appellate Court there made no findings of any

8

STREET, J.:
This action was instituted jointly by Remigio Rodrigueza and three others in the
Court of First Instance of the Province of Albay to recover a sum of money of the
Manila Railroad Company as damages resulting from a fire kindled by sparks from a
locomotive engine under the circumstances set out below. Upon hearing the cause
upon the complaint, answer and an agreed statement of facts, the trial judge
rendered judgment against the defendant company in favor of the plaintiffs and
awarded to them the following sums respectively as damages, to wit, (1) to Remigio
Rodrigueza, P3,000; (2) to Domingo Gonzaga, P400; (3) to Cristina Luna, P300; and
(4) to Perfecta Losantas, P150; all with lawful interest from March 21, 1919. From
this judgment the defendant appealed.
The facts as appearing from the agreed statement, in relation with the complaint, are
to the effect that the defendant Railroad Company operates a line through the district
of Daraga in the municipality of Albay; that on January 29, 1918, as one of its trains
passed over said line, a great quantity of sparks were emitted from the smokestack
of the locomotive, and fire was thereby communicated to four houses nearby
belonging to the four plaintiffs respectively, and the same were entirely consumed.
All of these houses were of light construction with the exception of the house of
Remigio Rodrigueza, which was of strong materials, though the roof was covered
with nipa and cogon. The fire occurred immediately after the passage of the train,
and a strong wind was blowing at the time. It does not appear either in the complaint
or in the agreed statement whose house caught fire first, though it is stated in the
appellant's brief that the fire was first communicated to the house of Remigio
Rodrigueza, from whence it spread to the others.
In the fourth paragraph of the complaint which is admitted to be true it is
alleged that the defendant Railroad Company was conspicuously negligent in
relation to the origin of said fire, in the following respects, namely, first, in failing to
exercise proper supervision over the employees in charge of the locomotive;
secondly, in allowing the locomotive which emitted these sparks to be operated
without having the smokestack protected by some device for arresting sparks; thirdly,
in using in its locomotive upon this occasion Bataan coal, a fuel of known inferior
quality which, upon combustion, produces sparks in great quantity.
The sole ground upon which the defense is rested is that the house of Remigio
Rodrigueza stood partly within the limits of the land owned by the defendant
company, though exactly how far away from the company's track does not appear. It
further appears that, after the railroad track was laid, the company notified
Rodrigueza to get his house off the land of the company and to remove it from its
exposed position. Rodrigueza did not comply with this suggestion, though he
promised to put an iron roof on his house, which he never did. Instead, he changed
the materials of the main roof to nipa, leaving the kitchen and media-aguas covered
with cogon. Upon this fact it is contended for the defense that there was contributory
negligence on the part of Remigio Rodrigueza in having his house partly on the
premises of the Railroad Company, and that for this reason the company is not
liable. This position is in our opinion untenable for the reasons which we shall
proceed to state.
In the first place, it will be noted that the fact suggested as constituting a defense to
this action could not in any view of the case operate as a bar to recovery by the three
plaintiffs other than Remigio Rodrigueza, even assuming that the fire was first
communicated to his house; for said three plaintiffs are in nowise implicated in the
act which supposedly constitutes the defense. In this connection it will be observed
that the right of action of each of these plaintiffs is totally distinct from that of his co-
plaintiff, so much so that each might have sued separately, and the defendant if it
had seen fit to do so, might in this case have demurred successfully to the complaint
for misjoinder of parties plaintiff. The fact that the several rights of action of the
different plaintiffs arose simultaneously out of one act of the defendant is not
sufficient of itself to require, or even permit, the joinder of such parties as coplaintiffs
in a single action (30 Cyc., 114) if objection had been made thereto. Domingo
Gonzaga, Cristina Luna, and Perfecta Losantas are therefore entitled to recover
upon the admitted fact that this fire originated in the negligent acts of the defendant;
and the circumstance that the fire may have been communicated to their houses
through the house of Remegio Rodrigueza, instead of having been directly
communicated from the locomotive, is immaterial. (See 38 Am. Dec., 64, 77; 1 11 R.
C. L., 968-971; Kansas City, etc. Railroad Co. vs. Blaker, 64 L. R. A., 81
Pennsylvania Railroad Co. vs. Hope, 80 Pa. St., 373; 21 Am. Rep. 100.)
With respect to the case of Remegio Rodrigueza it is to be inferred that his house
stood upon this ground before the Railroad Company laid its line over this course;
and at any rate there is no proof that this plaintiff had unlawfully intruded upon the
railroad's property in the act of building his house. What really occurred undoubtedly
is that the company, upon making this extension, had acquired the land only, leaving
the owner of the house free to remove it. Hence he cannot be considered to have
been a trespasser in the beginning. Rather, he was there at the sufferance of the
defendant company, and so long as his house remained in this exposed position, he
undoubtedly assumed the risk of any loss that might have resulted from fires
occasioned by the defendant's locomotives if operated and managed with ordinary
care. But he cannot be held to have assumed the risk of any damage that might
result from the unlawful negligence acts of the defendant. Nobody is bound to
9
anticipate and defend himself against the possible negligence of another. Rather he
has a right to assume that the other will use the care of the ordinary prudent man.
(Philadelphia and Reading Railroad Co. vs. Hendrickson, 80 Pa. St., 182; 21 Am. G.R. No. L-21291 March 28, 1969
Rep., 97.)
PRECIOLITA V. CORLISS, plaintiff-appellant,
In the situation now under consideration the proximate and only cause of the vs.
damage that occurred was the negligent act of the defendant in causing this fire. The THE MANILA RAILROAD CO., defendant-appellant.
circumstance that Remigio Rodrigueza's house was partly on the property of the
defendant company and therefore in dangerous proximity to passing locomotives Moises C. Nicomedes for plaintiff-appellant.
was an antecedent condition that may in fact have made the disaster possible, but The Government Corporate Counsel for defendant-appellee.
that circumstance cannot be imputed to him as contributory negligence destructive of
his right of action, because, first, that condition was not created by himself; secondly,
FERNANDO, J.:
because his house remained on this ground by the toleration, and therefore with the
consent of the Railroad Company; and thirdly, because even supposing the house to
be improperly there, this fact would not justify the defendant in negligently destroying Youth, the threshold of life, is invariably accompanied by that euphoric sense of
it. (Grand Trunk Railway of Canada vs. Richardson, 91 U. S., 454; 23 L. ed., 356; well-being, and with reason. The future, bright with promise, looms ahead. One's
Norfolk etc. Ry. Co. vs. Perrow, 101 Va., 345, 350.)lawphil.net powers are still to be tested, but one feels ready for whatever challenge may come
his way. There is that heady atmosphere of self-confidence, at times carried to
excess. The temptation to take risks is there, ever so often, difficult, if not impossible,
The circumstance that the defendant company, upon planting its line near Remigio
to resist. There could be then a lessening of prudence and foresight, qualities usually
Rodrigueza's house, had requested or directed him to remove it, did not convert his
associated with age. For death seems so remote and contingent an event. Such is
occupancy into a trespass, or impose upon him any additional responsibility over and
not always the case though, and a slip may be attended with consequences at times
above what the law itself imposes in such situation. In this connection it must be
unfortunate, even fatal.
remembered that the company could at any time have removed said house in the
exercise of the power of eminent domain, but it elected not to do so.
Some such thought apparently was in the mind of the lower court when it dismissed
the complaint for recovery of damages filed by plaintiff-appellant, Preciolita V. Corliss
Questions similar to that now before us have been under the consideration of
whose husband, the late Ralph W. Corliss, was, at the tender age of twenty-one, the
American courts many times, and their decisions are found to be uniformly favorable
victim of a grim tragedy, when the jeep he was driving collided with a locomotive of
to recovery where the property destroyed has been placed in whole or in part on the
defendant-appellee Manila Railroad Company, close to midnight on the evening of
right of way of the railroad company with its express or implied consent. (L. R. Martin
Feb 21, 1957, at the railroad crossing in Balibago, Angeles, Pampanga, in front of
Timber Co. vs. Great Northern Railway Co., 123 Minn., 423; Ann. Cas., 1915A, p.
the Clark Air Force Base. In the decision appealed from, the lower court, after
496, note; Burroughs vs.Housatonic R.R. Co., 15 Conn., 124; 38 Am. Dec., 64; 74;
summarizing the evidence, concluded that the deceased "in his eagerness to beat,
Southern Ry. Co. vs. Patterson, 105 Va. 6; 8 Ann. Cas., 44.) And the case for the
so to speak, the oncoming locomotive, took the risk and attempted to reach the other
plaintiff is apparently stronger where the company constructs its line in proximity to a
side, but unfortunately he became the victim of his own miscalculation." 1
house already built and fails to condemn it and remove it from its right of way.

The negligence imputed to defendant-appellee was thus ruled out by the lower
From what has been said it is apparent that the judgment appealed from is in all
court, satisfactory proof to that effect, in its opinion, being lacking. Hence this appeal
respect in conformity with the law, and the same is accordingly affirmed, with costs.
direct to us, the amount sought in the concept of damages reaching the sum of
So ordered.
P282,065.40. An examination of the evidence of record fails to yield a basis for a
reversal of the decision appealed from. We affirm.

10
 According to the decision appealed from, there is no dispute as to the following: "In
December 1956, plaintiff, 19 years of age, married Ralph W. Corliss Jr., 21 years of
age, ...; that Corliss Jr. was an air police of the Clark Air Force Base; that at the time
of the accident, he was driving the fatal jeep; that he was then returning in said jeep,
together with a P.C. soldier, to the Base; and that Corliss Jr. died of serious burns at
the Base Hospital the next day, while the soldier sustained serious physical injuries
and burns." 2
Then came a summary of the testimony of two of the witnesses for plaintiff-
appellant. Thus: "Ronald J. Ennis, a witness of the plaintiff, substantially declared in
his deposition, ..., that at the time of the accident, he also awaiting transportation at
the entrance of Clark Field, which was about 40 to 50 yards away from the tracks
and that while there he saw the jeep coming towards the Base. He said that said
jeep slowed down before reaching the crossing, that it made a brief stop but that it
did not stop dead stop. Elaborating, he declared that while it was slowing down,
Corliss Jr. shifted into first gear and that was what he meant by a brief stop. He also
testified that he could see the train coming from the direction of San Fernando and
that he heard a warning but that it was not sufficient enough to avoid the
accident." 3 Also: "Virgilio de la Paz, another witness of the plaintiff, testified that on
the night of February 21, 1957, he was at the Balibago checkpoint and saw the train
coming from Angeles and a jeep going towards the direction of Clark Field. He stated
that he heard the whistle of the locomotive and saw the collision. The jeep, which
caught fire, was pushed forward. He helped the P.C. soldier. He stated that he saw
the jeep running fast and heard the tooting of the horn. It did not stop at the railroad
crossing, according to him." 4
After which reference was made to the testimony of the main witness for defendant-
appellee, Teodorico Capili, "who was at the engine at the time of the mishap," and
who "testified that before the locomotive, which had been previously inspected and
found to be in good condition approached, the crossing, that is, about 300 meters
away, he blew the siren and repeated it in compliance with the regulations until he
saw the jeep suddenly spurt and that although the locomotive was running between
20 and 25 kilometers an hour and although he had applied the brakes, the jeep was
caught in the middle of the tracks." 5
1. The above finding as to the non-existence of negligence attributable to
defendant-appellee Manila Railroad Company comes to us encased in the armor of
what admittedly appears to be a careful judicial appraisal and scrutiny of the
evidence of record. It is thus proof against any attack unless sustained and
overwhelming. Not that it is invulnerable, but it is likely to stand firm in the face of
even the most formidable barrage.
In the more traditional terminology, the lower court judgment has in its favor the
presumption of correctness. It is entitled to great respect. After all, the lower court
had the opportunity of weighing carefully what was testified to and apparently did not
neglect it. There is no affront to justice then if its finding be accorded acceptance
subject of course the contingency of reversal if error or errors, substantial in
character, be shown in the conclusion thus arrived at. It is a fair statement of the
governing, principle to say that the appellate function is exhausted when there is
found to be a rational basis for the result reached by the trial court.
As was held in a 1961 decision: "We have already ruled, that when the credibility of
witnesses is the one at issue, the trial court's judgment as to their degree of
credence deserves serious consideration by this Court." 6 An earlier expression of the
same view is found in Jai-Alai Corporation v. Ching Kiat: "After going over the record,
we find no reason for rejecting the findings of the court below. The questions raised
hinge on credibility and it is well-settled that in the absence of compelling reasons, its
determination is best left to the trial judge why had the advantage of hearing the
parties testify and observing their demeanor on the witness stand." 7
In a 1964 opinion, we adhered to such an approach. Thus: "'Nothing in the record
suggests any arbitrary or abusive conduct on the part of the trial judge in the
formulation of the ruling. His conclusion on the matter is sufficiently borne out by the
evidence presented. We are denied, therefore, the prerogative to disturb that finding,
consonant to the time honored tradition of the Tribunal to hold trial judges better
situated to make conclusions on questions of fact'." 8 On this ground alone we can
rest the affirmance of the judgment appealed from.lwphi1.et
2. Nor is the result different even if no such presumption were indulged in and the
matter examined as if we were exercising original and not appellate jurisdiction. The
sad and deplorable situation in which plaintiff-appellant now finds herself, to the
contrary notwithstanding we find no reason for reversing the judgment of the lower
court.
This action is predicated on negligence, the Civil Code making clear that whoever
by act or omission causes damage to another, there being negligence, is under
obligation to pay for the damage done. 9 Unless it could be satisfactorily shown,
therefore, that defendant-appellee was guilty of negligence then it could not be held
liable. The crucial question, therefore, is the existence of negligence.
The above Civil Code provision, which is a reiteration of that found in the Civil Code
of Spain, formerly applicable in this jurisdiction, 10 had been interpreted in earlier
decisions. Thus, in Smith v. Cadwallader Gibson Lumber Co.,11 Manresa was cited to
the following effect "'Among the questions most frequently raised and upon which the
11
majority of cases have been decided with respect to the application of this liability,
are those referring to the determination of the damage or prejudice, and to the fault
or negligence of the person responsible therefor. These are the two indispensable
factors in the obligations under discussion, for without damage or prejudice there can
be no liability, and although this element is present no indemnity can be awarded
unless arising from some person's fault or negligence'."
Negligence was defined by us in two 1912 decisions, United States v.
Juanillo 12 and United States v. Barias. 13Cooley' formulation was quoted with
approval in both the Juanillo and Barias decisions. Thus: "Judge Cooley in his work
on Torts (3d ed.), Sec. 1324, defines negligence to be: "The failure to observe for the
protection of the interests of another person that degree of care, precaution and
vigilance which the circumstance justly demand whereby such other person suffers
injury." There was likewise a reliance on Ahern v. Oregon Telephone Co. 14Thus:
"Negligence is want of the care required by the circumstances. It is a relative or
comparative, not an absolute term and its application depends upon the situation of
the parties and the degree of care and vigilance which the circumstances reasonably
require. Where the danger is great, a high degree of care is necessary, and the
failure to observe it is a want of ordinary care under the circumstances."
To repeat, by such a test, no negligence could be imputed to defendant-appellee,
and the action of plaintiff-appellee must necessary fail. The facts being what they
are, compel the conclusion that the liability sought to be fastened on defendant-
appellee had not arisen.
3. Plaintiff-appellant, in her brief, however, would seek a reversal of the judgment
appealed from on the ground that there was a failure to appreciate the true situation.
Thus the first three assigned errors are factual in character. The third assigned error
could be summarily disposed of. It would go against the evidence to maintain the
view that the whistle was not sounded and the brakes not applied at a distance of
300 meters before reaching the crossing.
The first two assigned errors would make much of the failure of the lower court to
hold that the crossing bars not having been put down and there being no guard at
the gate-house, there still was a duty on the part of Corliss to stop his jeep to avoid a
collision and that Teodorico Capili, who drove the engine, was not qualified to do so
at the time of the accident. For one cannot just single out circumstance and then
confidently assign to it decisive weight and significance. Considered separately,
neither of the two above errors assigned would call for a judgment different in
character. Nor would a combination of acts allegedly impressed with negligence
suffice to alter the result. The quantum of proof required still not been met. The
alleged errors fail of their said effect. The case for plaintiff-appellant, such as it had
not been improved. There is no justification for reversing the judgment of the lower
court.
It cannot be stressed too much that the decisive considerations are too variable, too
dependent in the lid analysis upon a common sense estimate of the situation as it
presented itself to the parties for us to be able to say that this or that element having
been isolated, negligence is shown. The factors that enter the judgment are too
many and diverse for us to imprison them in a formula sufficient of itself to yield the
correct answer to the multi-faceted problems the question of negligence poses.
Every case must be dependent on its facts. The circumstances indicative of lack of
due care must be judged in the light of what could reasonably be expected of the
parties. If the objective standard of prudence be met, then negligence is ruled out.
In this particular case, it would be to show less than fidelity to the controlling facts to
impute negligence to defendant-appellee. The first three errors assigned certainly do
not call for that conclusion.
4. The fourth assigned error is deserving of a more extended treatment. Plaintiff-
appellant apparently had in mind this portion of the opinion of the lower court: "The
weight of authorities is to the effect that a railroad track is in itself a warning or a
signal of danger to those who go upon it, and that those who, for reasons of their
own, ignore such warning, do so at their own risk and responsibility. Corliss Jr., who
undoubtedly had crossed the checkpoint frequently, if not daily, must have known
that locomotive engines and trains usually pass at that particular crossing where the
accident had taken place." 15
Her assignment of error, however, would single out not the above excerpt from the
decision appealed from but what to her is the apparent reliance of the lower court
on Mestres v. Manila Electric Railroad & Light Co. 16 and United States v. Manlabat &
Pasibi. 17 In the Manabat case, the doctrine announced by this Court follows: "A
person in control of an automobile who crosses a railroad, even at a regular road
crossing, and who does not exercise that precaution and that control over it as to be
able to stop the same almost immediately upon the appearance of a train, is guilty of
criminal negligence, providing a collision occurs and injury results. Considering the
purposes and the general methods adopted for the management of railroads and
railroad trains, we think it is incumbent upon one approaching a railroad crossing to
use all of his faculties of seeing and hearing. He should approach a railroad crossing
cautiously and carefully. He should look and listen and do everything that a
reasonably prudent man would do before he attempts to cross the track." The
Mestres doctrine in a suit arising from a collision between an automobile and a street
car is substantially similar. Thus: "It may be said, however, that, where a person is
nearing a street crossing toward which a car is approaching, the duty is on the party
12
to stop and avoid a collision who can most readily adjust himself to the exigencies of
the case, and where such person can do so more readily, the motorman has a right
to presume that such duty will be performed."
It is true, as plaintiff-appellant would now allege that there has been a drift away
from the apparent rigid and inflexible doctrine thus set forth in the two above cases
evidenced by Lilius v. Manila Railroad Co., 18 the controlling facts of which, however,
are easily distinguishable from what had been correctly ascertained in the present
case. Such a deviation from the earlier principle announced is not only true of this
jurisdiction but also of the United States.
This is made clear by Prosser. Speaking of a 1927 decision by Justice Holmes, he
had the following to say: "Especially noteworthy in this respect is the attempt Mr.
Justice Holmes, in Baltimore & Ohio Railway v. Goodman, to 'lay down a standard
once for all,' which would require an automobile driver approaching a railroad
crossing with an obstructed view to stop, look and listen, and if he cannot be sure
otherwise that no train is coming to get out of the car. The basic idea behind this is
sound enough: it is by no means proper care to cross a railroad track without taking
reasonable precautions against a train, and normally such precautions will require
looking, hearing, and a stop, or at least slow speed, where the view is obstructed." 19
Then, barely seven years later, in 1934, came Pakora v. Wabash Railway, 20 where,
according to Prosser, it being shown that "the only effective stop must be made upon
the railway tracks themselves, in a position of obligation danger, the court
disregarded any such uniform rule, rejecting the 'get out of the car' requirement as
'an uncommon precaution, likely to be futile and sometimes even dangerous,' and
saying that the driver need not always stop. 'Illustrations such as these,' said Mr.
Justice Cardozo 'bear witness to the need for caution in framing standards of
behavior that amount to rules of law.... Extraordinary situations may not wisely or
fairly be subjected to tests or regulations that are fitting for the commonplace or
normal." 21
What Justice Cardozo announced would merely emphasize what was set forth
earlier that each and every, case on questions of negligence is to be decided in
accordance with the peculiar circumstances that present themselves. There can be
no hard and fast rule. There must be that observance of that degree of care,
precaution, and vigilance which the situation demands. Thus defendant-appellee
acted. It is undeniable then that no negligence can rightfully be imputed to it.
What commends itself for acceptance is this conclusion arrived at by the lower
court: "Predicated on the testimonies of the plaintiff's witnesses, on the knowledge of
the deceased and his familiarity with the setup of the checkpoint, the existence of the
tracks; and on the further fact that the locomotive had blown its siren or whistle,
which was heard by said witnesses, it is clear that Corliss Jr. was so sufficiently
warned in advance of the oncoming train that it was incumbent upon him to avoid a
possible accident and this consisted simply in stopping his vehicle before the
crossing and allowing the train to move on. A prudent man under similar
circumstances would have acted in this manner. This, unfortunately, Corliss, Jr. failed
to do." 22
WHEREFORE, the decision of the lower court of November 29, 1962 dismissing
the complaint, is affirmed. Without pronouncement as to costs.
Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Sanchez, Castro,
Capistrano, Teehankee and Barredo, JJ., concur.
EN BANC
G.R. No. L-9734 March 31, 1915
JUAN BAHIA, plaintiff-appellant,
vs.
FAUSTA LITONJUA, defendant-appellee,
and MARIANO LEYNES, defendant-appellant.
Felipe Agoncillo for appellant Bahia.
Ramon Diokno for appellee Litonjua.
Silvestre Apacible for appellant Leynes.
MORELAND, J.:
This is an appeal by the defendant Leynes from a judgment of the Court of First
Instance of Manila against him for the sum of P1,000, with costs; and by the plaintiff
from Fausta Litonjua.
This is an action to recover damages from the defendants for the death of plaintiff's
daughter alleged to have been caused by the negligence of defendant's servant in
driving an automobile over the child and causing her death.
It appears from the evidence that one Ramon Ramirez was the owner and manager
of a garage in the city of Manila known as the International Garage. His mother, the
13
defendant Fausta Litonjua, sometime before the accident from which this action
springs, purchased an automobile and turned it over to the garage to assist her son
in the business in which he was engaged. On the 14th of May, 1911, Ramirez rented
the automobile so purchased and donated by his mother to the defendant Mariano
Leynes, together with a chauffeur and a machinist, to be used by him for a short time
between Balayan and Tuy, Province of Batangas, to carry persons living in Balayan
to and from the fiesta which was about to take place in Tuy. According to the
arrangement between them, Ramires was to furnish the automobile, chauffeur, and
machinist, and the defendant Leynes was to pay him therefor P20 a day.
On the 16th of May, 1911, while passing from Balayan to Tuy, the automobile, by
reason of a defect in the steering gear, refused to obey the direction of the driver in
turning a corner in the streets of Balayan, and, as a consequence, ran across the
street and into the wall of a house against which the daughter of plaintiff was leaning
at the time. The font of the machine struck the child in the center of the body and
crushed her to death.
The action was brought against the mother of Ramirez, who bought the automobile,
and Leynes, under whose direction and control the automobile was being operated
at the time of the accident. Ramirez was not made a party. The plaintiff and the
defendant Leynes appealed from the judgment, the former on the ground that the
court erred in dismissing the action as to the mother of Ramirez and the latter from
that portion of the judgment requiring him to pay to plaintiff P1,000.
We are of the opinion that the action was properly dismissed as to Fuasta Litonjua. It
is a fact proved in the action and undisputed that, although the mother purchased the
automobile, she turned it over to the garage of her son for use therein. The
establishment belonged to the son, Ramon Ramirez, and he had the full
management and control of it and received all the profits therefrom. So far as
appears, the contract with Leynes was made without her knowledge or consent by
Ramirez as the owner and manager of the International Garage. While she may
have been in one sense the owner of the machine, that fact does not, under the
other facts of the case, make her responsible for the results of the accident.
We are of the opinion that the judgment against Leynes must be reversed and the
complaint dismissed as to him. While it may be said that, at the time of the accident,
the chauffeur who was driving the machine was a servant of Leynes, in as much as
the profits derived from the trips of the automobile belonged to him and the
automobile was operated under his direction, nevertheless, this fact is not conclusive
in making him responsible for the negligence of the chauffeur or for defects in the
automobile itself. Article 1903 of the Civil Code not only establishes liability in cases
of negligence, but also provides when that 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 damages.
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 a law
that there was negligence on the part of the master or employer either in the
selection of the servant or employee, or in supervision over him after 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 employees shows to
the satisfaction of the court that in selection and supervision he has exercised the
care and diligence of a good father of a family, the presumption is overcome and he
is relieved from liability.
This theory bases the responsibility of the master ultimately on his own negligence
and not on that of his servant. This is the notable peculiarly of the Spanish law
negligence. It is, of course, in striking contrast to the American doctrine that, in
relations with strangers, the negligence of the servant is conclusively the negligence
of the master.
In the case before us the death of the child caused by a defect in the steering gear of
the automobile immediately raised the presumption that Leynes was negligent in
selecting a defective automobile or in his failure to maintain it in good condition after
selection, and the burden of proof was on him to show that he had exercised the
care of a good father of a family. 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. From the commencement of the use of
the machine until the accident occurred sufficient time had not elapsed to require an
examination of the machine by the defendant as a part of his duty of inspection and
supervision. While it does not appear that the defendant formulated rules and
regulations for the guidance of the drivers and gave them proper instructions,
designed for the protection of the public and the passengers, the evidence shows, as
we have seen, that the death of the child was not caused by a failure to promulgate
rules and regulations. It was caused by a defect in the machine as to which the
defendant has shown himself free from responsibility.
14
The defendant Leynes having shown to the satisfaction of the court that he exercised
the care and diligence of a good father of a family is relieved of responsibility with
respect to the death of plaintiff's child.
The judgment, in so far as it dismisses the complaint against Fausta Litonjua, is
affirmed with costs, and, in so far as to finds against Mariano Leynes, is reversed
and the complaint as to his dismissed, without special finding as to costs in this
instance. So ordered.
EN BANC
G.R. No. L-9308 December 23, 1914
JUAN BERNARDO, plaintiff-appellant,
vs.
M. B. LEGASPI, defendant-appellee.
Roman de Jesus for appellant.
No appearance for appellee.
MORELAND, J.:
This is an appeal from a judgment of the Court of First Instance of the city of Manila
dismissing the complaint on the merits filed in an action to recover damages for
injuries sustained by plaintiff's automobile by reason of defendant's negligence in
causing a collision between his automobile and that of plaintiff. The court in its
judgment also dismissed a cross-complaint filed by the defendant, praying for
damages against the plaintiff on the ground that the injuries sustained by the
defendant's automobile in the collision referred to, as well as those to plaintiff's
machine, were caused by the negligence of the plaintiff in handling his automobile.
The court found upon the evidence that both the plaintiff and the defendant were
negligent in handling their automobiles and that said negligence was of such a
character and extent on the part of both as to prevent either from
recovering.1awphil.net
Upon the facts, as they appear of record, the judgment must be affirmed, as the
evidence clearly supports the decision of the trial court. The law applicable to the
facts also requires an affirmance of the judgment appealed from. Where the plaintiff
in a negligence action, by his own carelessness contributes to the principal
occurrence, that is, to the accident, as one of the determining causes thereof, he
cannot recover. This is equally true of the defendant; and as both of them, by their
negligent acts, contributed to the determining cause of the accident, neither can
recover.
The judgment appealed from is affirmed, with costs against the appellant.itc-alf
EN BANC
G.R. No. L-8937 November 29, 1957
OLEGARIO BRITO SY, plaintiff-appellee,
vs.
MALATE TAXI CAB & GARAGE, INC., defendant-appelant;
MALATE TAXICAB & GARAGE, INC., third-party plaintiff-appellant,
vs.
JESUS DEQUITO Y DUPY, third-party defendant-appellee.
Paredes, Gaw and Acevedo for appellee.
Diaz and Baizas for appellant.
ENDENCIA, J.:
On June 26, 1952, at Dewey Boulevard in front of the Selecta Restaurant, Olegario
Brito Sy engaged a taxicab bearing plate No. Taxi-1130, owned and operated by
Malate Taxicab and Garage, Inc. and driven by Catalino Ermino, to take him to his
place of business at Dencia's Restaurant on the Escolta where he was the general
manager. Upon reaching the Rizal Monument he told the driver to turn to the right,
but the latter did not heed him and instead countered that they better pass along
Katigbak Drive. At the intersection of Dewey Bolevard and Katigbak Drive, the taxi
collided with an army wagon with plate No. TPI-695 driven by Sgt. Jesus De quito,
as a result of which Olegario Brito Sy was jarred, jammed and jolted. He was taken
15
to the Santa Isabel Hospital suffering from bruises and contusions as well as
fractured right leg. Thereafter he was transferred to the Gonzales Orthopedic Clinic
and was accordingly operated on. He spent some P2,266.45 for medical bills and
hospitalization.
On September 30, 1952, Sy filed action against the Malate Taxicab & Garage, Inc.,
based upon a contract of carriage, to recover the sums of P7,200 as actual or
compensatory damages, P20,000 as moral damages, P15,000 as nominal and
exemplary damages, and P3,000 a attorney's fees. On October 2, 1952, a copy of
the complaint was served on and received by the defendant, but the latter filed its
answer only on October 20, 1952, wherein it alleged that the collision subject of the
complaint was not due to the negligence of its driver but to that of Sgt. Jesus
Dequito, the driver of the army wagon; and, by way of counterclaim, sought to
recover the sum of P1,000 as damages caused by the alleged malicious and
frivolous action filed against it.
The record reveals that upon plaintiff's motion filed on October 23, 1952, the lower
court ordered on October 25, 1952 that the answer which was filed by defendant out
of time be stricken out, and declared the Malate Taxicab & Garage, Inc. in default.
Thereafter, on October 30, 1952, plaintiff presented his evidence, and on November
20, 1952 judgment was rendered awarding plaintiff the sum of P14.000 as actual,
compensatory, moral, nominal and exemplary damages including attorney's fees and
costs, with interest at the legal rate from the filing of the action. Defendant then filed
a motion on December 17, 1952, for relief from the order of default and for new trial,
which was granted. Hence, plaintiff filed his reply to defendant's answer and
counterelaim, and by leave of court, the latter filed on February 24, 1953 a third-party
complaint against Sgt. Jesus Dequito alleging that the cause of the collision between
the taxicab and the army wagon was the negligence of the army sergeant, and
praying that whatever amount the court may assess against it in the action filed by
plaintiff, be paid to said third-party plaintiff, plus an additional amount of P1,000
representing attorney's fees. It appears, however, that the summons and copy of the
third-party complaint were never served upon third-party defendant Dequito in view
of his continued assignment from place to place in connection with his army duties,
and for this reason the main case was set for trial on May 10, 1953, obviously for the
sole purpose of disposing of the issue arising from plaintiffs complaint. On the day of
the trial, defendant failed to appear, whereupon plaintiff presented his evidence, and
judgment was rendered against the defendant in the total sum of P4,200
representing actual, compensatory and moral damages, as well as attorney's fees,
with interest at the legal rate from the filing of the action, plus costs of suit. Aga nst
said judgment defendant appealed to the Court of Appeals and assigned in its brief
two errors of the lower court, namely:
1. The trial court erred in not finding that the third-party complaint involves a
prejudicial question, and therefore, the main complaint cannot be decided
until the third-party complaint is decided.
2. The trial court erred in not deciding or making an express finding as to
whether the defendant appellant Malate Taxicab & Garage, Inc. was
responsible for the collision, and hence, civilly responsible to the plaintiff-
appellee.
Finding the quoted assignment of errors as involving a purely question of law, the
Court of Appeals, by virtue of the provisions of section 17, paragraph 6 of the
judiciary Act of 1948, as amended, certified the case to this Court for adjudication, in
its Resolution of February 7, 1955.
We find no merit in the first assignment of error that the third-party complaint is a
pre-judicial question. As enunciated by this Court in Berbari vs. Concepcion, 40 Phil.
837, "Pre-judicial question in understood in law to be that which precedes the
criminal action, or that which requires a decision before final judgment is rendered in
the principal action with which said question is closely connected. Not all previous
questions are pre-judicial questions are necessarily previous", although all pre-
judicial questions are necessarily previous." In the present case, the third-party
complaint is not a pre-judicial question, as the issue in the main action is not entirely
dependent upon those in the third-party complaint; on the contrary, it is the third-
party complaint that is dependent upon the main case at least in the amount of
damages which defendant appellant seeks to be reimbursed in its third-party
complaint. Furthermore, the complaint is based on a contractual obligation of
transportation of passenger which defendant-appellant failed to carry out, and the
action is entirely different and independent from that in the third-party complaint
which is based an alleged tortious act committed by the third-party defendant Sgt.
Dequito. The main case, therefore, is entirely severable and may be litigated
independently. Moreover, whatever the outcome of the third-party complaint might be
would not in any way affect or alter the contractual liability of the appellant to plaintiff.
If the collision was due to the negligence of the third-party defendant, as alleged,
then defendant appellant may file a separate civil action for damages based on tort
ex-delicto or upon quasi-delict, as the case may be.
Coming to the second assignment of error that the lower court erred in not making
an express findings as to whether defendant appellant was responsible for the
collision, we find the same to be unjustified. The pertinent, provisions of the new Civil
Code under the heading Common Carriers, are the following:
16
 ART. 1733. Common carriers, from the nature of their business and for
reason 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.
Such extraordinary diligence in the vigilance over the goods is further
expressed in articles 1734, 1735, and 1745, Nos. 5, 6, and 7, while
the extraordinary diligence for the safety of the passengers is further set
forth in articles 1755 and 1756.
ART. 1755. A common carrier is bound to carry the passengers to safety 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.
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
articles 1733 and 1755. (Emphasis supplied.)
Evidently, under these provisions of law, the court need not make an express finding
of fault or negligence on the part of the defendant appellant in order to hold it
responsible to pay the damages sought for by the plaintiff, for the action initiated
therefor is based on a contract of carriage and not on tort. When plaintiff rode on
defendant-appellant's taxicab, the latter assumed the express obligation to transport
him to his destination safely, and to observe extraordinary diligence with a due
regard for all the circumstances, and any injury that might be suffered by the
passenger is right away attributable to the fault or negligence of the carrier (Article
1756, supra). This is an exception to the general rule that negligence must be
proved, and it was therefore incumbent upon the carrier to prove that it has
exercised extraordinary diligence as prescribed in Articles 1733 and 1755 of the new
Civil Code. It is noteworthy, however, that at the hearing in the lower court
defendant-appellant failed to appear and has not presented any evidence at all to
overcome and overwhelm the presumption of negligence imposed upon it by law;
hence, there was no need for the lower court to make an express finding thereon in
view of the provisions of the aforequoted Article 1756 of the new Civil Code.
G.R. No. 49155 December 14, 1948
JUAN CASTRO, demandante-apelado,
vs.
ACRO TAXICAB CO., INC., demandada-apelante.
Sres. Delgado y Dizon (Delgado y Flores) en representacion de la apelante. D.
Salvador E. Imperial y. D. Amador Constanino en representacion del apelado.
BRIONES, J.:
Esta es una apelacion, por via de certiorari, en que se pide que revisemos la
sentencia del Tribunal de Apelacion condenando a la demandada y apelante Acro
Taxicab Co., Inc., a pagar al demandante y apelado Juan Castro la suma de P4,000
P1,000, por gastos de tratamiento facultativo; y P3,000, como una "adecuada
compensacion por los sufrimientos y por la incapacidad para trabajar durante el
tiempo en que el (el demandante) habia estado actualmente incapacitado para
realizar el trabajo previamente desempanado por el mismo." La sentencia del
Tribunal de Apelacion confirma sustancialmente la del Juzgado de Primera Instacia
de Manila, reduciendo solo la indemnizacion de P6,000 a P4,000.
Para una acabada comprension de los hechos esenciales del caso, reproducimos a
continuacion toda la sentencia del Tribunal de Apelacion, a saber:
Defendant, a domestic corporation, appeals from a judgment
directing it to pay the sum of P6,000 as damages, with interest at 6
per cent from the filing of the complaint until paid, and costs.
It appears that on July 14, 1939, about 4 a.m., after taking a cup of
coffee at the Central Hotel, Juan Castro boarded taxicab No. 962, a
car for hire owned by appellant corporation and driven by Sancho
Ruedas, to go home. The cab proceeded northward on Rizal
Avenue and before reaching Calle Lope de Vega, the passenger
told the driver to turn to the right or east of Calle Zurbaran, the next
cross street. Ruedas drove the cab so fast that when he had to turn
it to the right or east of Calle Zurbaran, it collided with another
taxicab No. 936 owned by the same corporation coming from the
north. Both cars were heavily damaged, and the first hit the fire
hydrant that was on the sidewalk, east of Rizal Avenue and
southeast of Calle Zurbaran. Without losing time Castro boarded
another car and directed the driver to take him to the Philippine
General Hospital, and upon reaching Calle Carriedo in front of
Tom's Dixie, he ordered the driver to stop and requested patrolman
Jose Lomboy to accompany him to the hospital. Upon arriving
there, Dr. Eriberto Aguilar asked him to undress, looked over his
17
body, applied ointment to aching parts, and told him to return home.
The following day, as he was still suffering from acute pains on the
left side of the chest, difficult breathing, fever, and coughs, he
called Dr. Herrera who prescribed some palliative medicines, and
on the 17th, Dr. Herrera advised him to go to a hospital because it
was a case for a surgeon. On July 18, he entered St. Luke's
Hospital and was treated there by Dr. Fores who advised him to
have an X-ray taken. Dr. Paulino J. Garcia took an X-ray picture
(Exhibits A-1 and A-2) and this revealed that five left ribs were
fractured. After three days stay in the hospital he was advised to go
home because the hospital charges were rather heavy, and was
told by Dr. Fores that he would continue treating him at the house
(pp. 23-25, t.s.n., July 15, 1940). Twice a week for two consecutive
weeks and once in the third week after his discharge from the
hospital (p. 48, t.s.n., Sept. 3, 1940), or three or four times, he was
visited in his house and treated by Dr. Fores (p. 19, t.s.n., July 15),
and after one month he was told to report to the surgeon once
every two weeks (p. 20, t.s.n., July 15), and reported twice (p. 48,
t.s.n., Sept 3). The honorarium of Dr. Herrera is P100; of Dr. Fores,
P150; and the hospital bill was P40. Castro testifies that prior to the
accident he was a sort of a utility man of Eleuterio Navoa, and for
that work he was paid a salary of P250 a month (p. 6, t.s.n., Sept.
4), but he could no longer work after the accident, he lost his job.
The first point to decide is whether the chauffeur of the taxicab,
owned and operated for hire by appellant, had been imprudent in
driving the car before and when he turned it to the right or east of
the Calle Zurbaran, for if he had been, the fact that the driver of the
second car that collided with the first also been reckless would be
immaterial and would not affect appellants's obligation arising from
the imprudent or reckless act of its servant. If, on the other hand,
only the driver of the second car had been imprudent, appellant
would not be relieved just the same from its liability arising from the
reckless act, as correctly held by the trial court. The determination
of the accident's cause is only necessary to ascertain and fix the
source of appellant's liability. If the cause of the accident was the
imprudent act of the first car's driver, then appellant's obligation
would be contractual. If it was the recklessness on the second car's
driver, then its liability would arise from tort or culpa aquiliana. A
review of the evidence discloses that the driver of the first car ran
his car at an immoderate speed, so much so that instead of
passing the lamp post in the middle of the avenue and cross street
to turn to the right or east of Calle Zurbaran, as required by law and
ordinance, he did not pass it, an act which indicates clearly that
because of the speed he was going he could not pass it but turned
his car to the right passing on the south of the post, and after
turning it in that way, the two cars collided at a point on the east of
Rizal Avenue and on the south of Calle Zurbaran. The point where
the collision took place must be the one indicated by appellee
(Exhibit 1; p. 11. t.s.n., Sept. 4), because the five hydrant located at
the curve on the east of Rizal Avenue and southeast of Calle
Zurbaran was hit by the first car and damaged as a result thereof.
For this damage appellant and its driver undertook to pay, as they
did pay, the Metropolitan Water District (Exhibits E, F, G, H; pp. 54-
59, 77, t.s.n., Sept. 3).
The other point to determine is the amount of damages. The
evidence shows that appellee has to pay for the X-ray picture (p.
15, t.s.n., Sept. 4); Dr. Herrera, P100 (p. 10, t.s.n., July 15); Dr.
Fores, P150 (p. 21, t.s.n., July 15; p. 49, t.s.n., Sept. 3); and had
paid the hospital P40 (p. 15, t.s.n., Sept. 4). It is not clear as to
other expenses, such as the amount spent for medicines
prescribed for and applied to appellee (p. 8, t.s.n., Sept. 4).
Nevertheless, P1,000 for all fees and expenses would still be
reasonable. On the other hand, the award of P5,000 for injuries
suffered is speculative. There is no sufficient evidence to support it.
If it is true that he only stayed 3 days in the hospital and was
treated in his house by Dr. Fores 3 or 4 times (p. 19, t.s.n., July 15;
p. 48, t.s.n., Sept, 3), then he was not disabled for the rest of his
life, as claimed by him, to perform his previous work which required
no physical exertion, for it was most likely that the fracture of the
ribs had been cured by ossification, this kind of fracture being
curable from 4 to 8 weeks (pp. 22, 33, 43, t.s.n., July 15; p. 37.
t.s.n., Sept. 4), as shown by the fact that appellee was stout and
healthy when seen at the trial of this case (p. 38, t.s.n., Sept. 4). If
this fact be accepted, as it must, then P5,000 as compensation for
damages suffered by appellee is certainly excessive. According to
appellee, his work before the accident was that of a utility man of
Eleuterio Navoa; according to appellant's witnesses his work was
that of a dealer in the game of cards conducted by his principal (pp.
30-31, 33, 34, t.s.n., Sept. 4). Whether it be the first or the second,
certainly his work required no physical exertion and the ossification
of the fractural ribs rendered him fit to perform again the work. On
the whole, P3,000 would be an adequate compensation for pains
and disability to work during the time he had been actually disabled
to perform the work previously done by him.
We modify the judgment appealed from and award appellee
P4,000, together with lawful interests from the filing of the
complaint until paid, and costs.
18
La primera cuestion que tenemos que determinar y resolver, dentro del marco de
nuestra jurisdiccion sobre asuntos que vienen en alzadadel Tribunal de Apelacion, el
la que se refiere a la ley aplicable al caos. Resulta evidente, de os hechos
expuestos, que las disposiciones legales aplicables son los articulos 1.101, 1.103 y
1.104 del Codigo Civil, cuyo texto es como signe:
ART. 1.101. Quedan sujetos a la indemnizacion de los daos y perjuicios
causados los que en el cumplimientode sus obligacions incurrienrenen
dolo, negligencia o morosidad, y los de cualquier modo contravinieren al
tenor de aquellas.
ART. 1.103. La responsabilidad que proced de negligencia es igualmente
exigible en el cumplimiento de toda clase de obligaciones; pero podra
moderarse por los Tribunales segun los casos.
ART. 1.104. La culpa o negligencia del deudor consiste en la omision de
aquella diligencia que exija la naturaleza de la obligaciony corresponda a
las circunstancias de las personas, del tiempo y del lugar.
Cuando la obligacion no exprese la diligencia que ha de prestarse en su
cumplimiento, se exigira la que corresponderia a un buen padre de familia.
En los alegatos de ambas partes se debate hasta cierto punto el alcance de los
articulos 1.902 y 1.903 del mismoCodigo, pero es evidente que estos no son los
pertinentes.En el caso que nos ocupa la culpa o negligencia de que se trata es la
llamada tecnicamente culpa contractual y es objeto de los articulos primeramente
citados, mientras que los ultimos se refieren a la denominada culpa extracontractual
o culpa aquiliana del derecho romano. Ambos conceptos tienen, sinembargo, un
comun denominador negativo y es la falta de intencion daada: si esta existiera,
entonces ya no seria solo culpa sino que seria delito o, por lo menos dolo, y las
disposiciones aplicables serian entonces diferentes;tratandose de dolo, por ejemplo,
el articulo aplicable seria el 1.102, y tratandose de delito el articulo 1.092.
Es importante y util recalcar la diferencia entre culpa contractual y culpa aquiliana
porque ambos conceptos juridicosoriginan algunas implicaciones y consecuencias
diferentes. La culpa aquiliana determina y engendra la responsabilidad, y por eso
es sustantiva, independiente; mientras que la culpa contractual presupone la
preexistencia de una obligacion, por tanto es olo incidental es decir, la infraccion
o incumplimiento de esa obligacion es lo que genera la culpa contractual.
Una implicacion o consecuencia caracteristica de la diferenciaentre ambos
conceptos juridicos es que, tratandose de la culpaextracontractual o aquiliana, el
demandante que reclame indemnizacion de daos y perjuicios tiene que probar,
como requisito indispensable para que prospere us accion, la culpa o negligencia
del demandado, mientras que, tratandose de la culpa contractual, es bastante que
se pruebe la existencia del contrato y que la obligacion resultante del mismo se ha
infringido o no se hacumplido, siguiendose daos de esta infraccion e
incumplimiento. Esta Corte Suprema, bajo la ponencia del Magistrado Sr. Fisher
enel asunto autoritativo de Cangco contra Manila Railroad Co. (1918), sentola
doctirna, con el siguiente pronunciamiento:
La situacion de una persona natural o juridica que, por contrato, se ha
obligado a alguna prestacion a favor de otra, es completamentedistinta de
la situacion a que se contrae el articulo 1903. Cuando la fuente de la
obligacion en que se funda la accion del demandante es un acto u omision
negligente, al demandante incumbe acreditar la existencia de la negligencia
no prosperara su accion sino lo hace. Pero, cuando los hechos alegados
demuestren la existencia de un contrato en virtud del cual el demandao se
ha obligado a una prestacion cualquiera a favor del demandante, y se
aleque que este ha omitido o se ha negado a cumplir su contrato, no es
necesario que el demandante especifique en su demanda que el
incumplimiento del contrato se debio a intencion dolosa, o a mera
negligencia por parte del demandado, o de sus empleados,dependientes o
mandatarios. La prueba de la existencia del contratoy la de su
incumplimiento son prima facie suficientes para que sea procedente que se
dicte sentencia de acuerdo con lo pedido.(Cangco contra Manila Railroad
Co. 38 Jur. Fil., p. 825.)
Apliquemos ahora la doctrina al caso que tenenmos ante Nos. Cuando el
demandante y apelado, Juan Castro, tomo el taximetro No. 962 de la compaia
demandada y apelante para que le condujera a cierto punto de Manila, se
perfecciono entre ambas partes un contrato de transporte o pasaje en virtud del cual
la demandada se obligaba a transportar al pasajero sano y salvo al lugar de su
destino, y el pasajero a pagar la contidad fijada en la Tarifa. Pero al llegar el referido
taxi a la esquina de la avenida de Rizal y de la calle de Zurbaran choco con otro
taximietro de la demandada el taxi No. 936 y de resultas del choque, el cual
fue violentisimo, los dos automoviles se destrozaron casi por completo y el
demandante salio contuso y lesionado, fracturandosele cinco costillas. Ese choque
engendro juridicamenteuna culpa contractual de parte de la demandada
consistiendo la culpa en el incumplimiento de la obliagcion de dicha demandada de
transportaral demandante sano y salvo al punto de su destino. Y para que
prosperase la accion del demandante pidiendo indemnizacion de danos y perjuicios
bastaba que probase la existencia del contrato de paseje, esto es, que tomo el taxi
para ser conducido, y el hecho del choque que causo lesiones y daos en el
pasajero. De acuerdo con la doctrina enunciada, para el exito de la ccion de daos
no era necesario que se probase la culpa, descuido o negligencia del chofer que
guiaba el taximetro No. 962. (Sin embargo, las pruebas obrantes en autos, tal como
han sido apreciadas por el Juzgado de Primera Instancia y el Tribunal de Apelacion,
demuestran no solo que fue descuidado y negligente el chofer del taximetro No.
962, sino que lo fue tambien el del taximetro No. 936 que venia del norte y que
choco contra aquel, corriendo a una tremenda velocidad; de modo que, en realidad,
las exigencias del derecho y de la jurisprudencia estan superadas enl el presente
caso)
19
Se preguntara: que defensa podia interponer la demandada contrala accion del
demandante? Aquella podia defenderse alegando que se trata de un caso fortuito o
fuerza mayor, pues, segun el articulo 1.105 del Codigo Civil, "fuera de los casos
expersamente mencionadosen la ley, y de los en que asi lo declare la obligacion,
nadieresponde de aquellos que no hubieren podido preverse, oque, previstos,
fueran invevitables." Major casus est, cui humana infirmitas resistere non potest.
(Gajus, lib. 1.o, 4.0D. de O. et A., 44., 7). De hecho, la demandada interpuso esta
defensa, alegando y tratando de probar quecuando ocurrio el accidente de 3 a 4
de la madrugada estaba anunciado un tifon y que debido a las fuertes lluvias el
piso era harto resbaladizo y sobre todo la visibilidad eramuy pobre, por la
obscuridad. Sin embargo, ni el Juzgado de Primera Instancia, ni el Tribunal de
Apelacion dieron credito a esta defensa. Los dos tribunales a quo han dado por
establecidos y probados de una manera preponderante los siguinetes hechos: (a)
que si bien es cierto que se habia anunciado un baguio, el mismo ya se habia
alejado de Filipinas, alla por Formosa, y ya no llovia o llovia muy poco cuando
ocurrio el accidente; (b) que el accidente tuvo lugar por culpa o negligencia de los
dos chofers de la demandada: del que guiaba el taximetro No. 962en donde estaba
de pasajero el demandante, porque no solo corria a una velocidad
antirreglamentaria, sino queal llegar a la esquina de que se ha hecho mencion, en
vez de moderar la marcha y rebasar el poste electrico antes de torcer a la derecha,
como estaba mandado por los reglamentos de trafico, viro de repente, y en esto vino
encima el taximetro No. 936 de la misma compaia, causandose un choque tan
violento que aquel, el taximetro No. 962m fuearrojado contra un bocaincendios
destrozandolo, y este, o sea el taximetro No. 936 arrojado a una larga distancia
hacia el noreste de la esquina, destruyendose casi porcompleto ambos coches,
como queda dicho mas arriba; yla culpa o negligencia del chofer del tximetro No.
962consistio en correr demasiado, tambien a una velocidad ilegal y
antirreglamentaria, como lo demuestra la fuerza tremenda del impacto.
Es obvio que dentro del marco de nuestra jurisdiccion en alzada, tal como lo define
la ley, no estamos autorizados para abrogar o alterar estas apreciaciones y
conclusiones de hecho establecidas tanto por el Juzgado de Primera Instancia como
por el Tribunal de Apelacion: tenemos que darlas por buenas y resolver solamente
cualquiercuestion de derecho suscitada sobre las mismas.
Puede alegarse como defensa el hecho de que la compaia demandada ejercito el
cuidado y diligencia de un buen padre de familia tanto en la seleccion de los chofers
de que setrata como en la direccion y vigilancia de los mismos en el desempeo de
su trabajo y sus deberes, y que por tanto, aun concediendo que los chofers fueron
descuidados y negligentes, su negligencia fue enteramente personal y la compaia
no responde de ella? La contestacion tiene que ser negativa. Aqui otra vez se
destaca otra diferencia esencial y caracteristica entre la culpa extracontractual o
aquiliana y la contractual.
Segun el articulo 1902 del Codigo Civil, "el que por accion u omision causa dao a
otro, interviniendo culpa o negligencia, esta obligado a reparar el dao
causado."(Como ya hemos dicho, esta es la culpa extracontractual o aquiliana.) Y,
segun el articulo 1.903, la obligacion que impone este articulo "es exigible no solo
por los actos u omisiones propios, sino por los de aquellas personas de quienes se
debe responder," asi que "el padre, y por muerte o incapacidad de este, la madre,
son responsables de los perjuicios causados por los hijos menores de edad que
viven en su compaia;" ... y "lo son igualmente los dueos o directores de un
establecimiento o empresa, respecto de los perjuicios causados por sus
dependientes en el servicio de los ramos en que los tuvieran empleados o con
ocasion de sus funciones." Se ha declarado que tratandose de este ultimo caso, es
decir, de la culpa imputable al dependiente de un establecimiento o empresa, al
ocurrir el acto u omision negligente nace simultaneamente la presuncion de
negligencia de parte de los dueos o directores, si bien esa presuncion es solo juris
tantum y puede ser enervada por la prueba de que estos ejercitaron elciudado y
diligencia de un buen padre de familia no solo en la seleccion del dependiente sino
tambien en la direccion, supervision y vigilancia de su conducta y de sus actos.
Establecida suficientemente esta prueba, los duenos y directores de la empresa
quedan exentos de responsabilidad por los daos causdos. En el asunto de
Bahiacontra Litonjua y Leynes (1915), quese decidio bajo el articulo 1903 del
Codigo Civil, es decir, como un caso de culpa aquiliana, esta Corte hizo el siguiente
pronunciamiento doctrinal:
Segun el articulo 1.903 del Codigo Civil cuando se ocasiona un dano por
negligencia de un criado o dependiente, la ley presume que ha mediado
negligencia por parte del amo o patrono, ya en la seleccion del criado o
dependiente, ya en la forma de inspeccionar sus trabajos despues de
habersele escogido, ya en ambas cosas. Dicha presuncion, (sin
embargo), no es juris et de jure, sino juris tantum; y si el amo o patrono
prueba a satisfacciondel tribunal que, al escoger y vigilar al dependiente,
ejercito el cuidado y diligencia de un buen padre de familia, queda
destruida la presuncion a y relevado aquel de toda responsabilidad.
Esta doctrina hace descansar la respponsabiildad del patrono, en ultimo
termino en su propia negligencia y no en la del dependiente. . . .
(Bahia contra Litonjua y Leynes, 30 Jur. Fil., 655, 658.)lawphil.net
Tratandose, sin embargo, de la culpa o negligencia contractual (Articulos 1.101,
1.103 y 1.104 del Codigo Civil), la regla es completamente diferente. Ambas
responsabilidades la del dependiente y la del amo sonsolidarias, se confunden
en una sola.Asi que el patrono no puede exculparse alegando que ejercito el
cuidado y diligencia de un buen padre de familia tanto en la seleccion del
dependiente como en la direccion e inspeccion de sus actos. Seexplano con
claridad meriediana esta regla en el asunto de Cangco contra Manila
Railraod, supra, a saber:
La situacion de una persona natural o juridica que, por contrato, se ha
obligado a alguna prestacion a favor de otra, es completamente distinta d
ela situacion a que se contrae el articulo1903. Cuando la fuente de la
obligacion en que se funda la accion del demandante es un acto u omision
negligente, al demandante incumbe acreditar la existencia de la negligencia
20
 no prosperara su accion si no lo hace. Pero, cuando los hechos
alegados demuestren la existencia de un contrato en virtud del cual el
demandado se ha obligado a una prestacion cualquiera a favor de
demandante, y se aleque que este ha omitido o se ha negado a cumplir su
contrato, no es necesario que el demandante especifique en su demanda
que el incumplimiento del contrato se debio a intencion dolosa, o a mera
negligencia por parte del demandado, o de sus empleados, dependientes o
mandatarios. La prueba de la existencia del contrato y la de su
incumplimiento son prima facie suficientes para que sea procedente que se
dicte sentencia de acuerdo con lo pedido.
Por regla general, ... sera lo logica que, tratandose de culpa
extracontractual, el acredor que reclame tenga que probar la existencia de
la misma, como unico hecho en que su reclamacion se basa; y, por el
contrario, tratandose de culpa que supone la existencia de una obligacion,
el acreedor aue demuestre existia esta ultima y reclame su cumplimiento,
no estara obligado a probar la existencia de aquella. (Manresa, tomo 8, pa.
71 [Ed. de 1907, pag. 76].)
No siendo necesario que el demandante demuestre, en una accion sobre
infraccion de contrato, que el cumplimiento era imputable a la negligencia
del demandado o de sus dependientes, aun cuando esta sea realmente la
causa del incumplimiento, es, por consiguiente, obivio que, si el
demandado prueba que la causa del incumplimiento del contrato fue la
negligiencia u omision de su criado, dependianteo mandatario, esta prueba
no constituira una defensa contra la accion. Si la negligencia de los criados,
dependientes o mandatarios pudiese invocarse como razon para liberar del
cumplimiento de los contratos, se daria el resultado anomalo de que las
personas queobran por medio de mandatarios, a dependientes o
empleados, en el cumplimiento de sus contratos, estarian en mejor
situacion que los que obraran en persona. Si se entrega un reloj de valor a
un relojero, quien se obliga, por contrato, a hacer reparaciones en el
mismo, y el relojero, por un acto de negligencia personal, destruye el reloj,
es indiscutiblemente responsable del dao causado. Seria,acaso, logico
librarle de la respponsabilidad nacida del incumplimiento de su contrato,
que llevaba implicita la obligacion de prestar la diligencia debida en la
conservacion del reloj, si demostrase quela causa del dao habia sido la
negligencia de uno de suscriados?Si fuera aceptable tal teoria, las
personas juridicas gozrian de una unmunidad casi completa por los daos
y perjuicios nacidos del incumplimiento de sus contratos, si la causa de tal
incumplimiento fuese un acto u omision negligente de parte de sus
empoleados, dependientes o criados, puesto que las personas juridicas
necesariamente tienen que obrar por medio de sus mandatarios y en la
mayoria de los casos seria facil probar que habian desplegado una
diligencia razonable y ordinaria en la seleccion y direccion de tales
mandatarios. Si se entregan valores a una corporacion bancaria, como
garantia pginoraticia, y tales valores se pierden por negligencia de alguno
de los empleados del banco, acuso seria justo y razonable permitir que el
banco quedara relevado de toda responsabilidadpor su obligacion
contractual de devolver los valores al extinguirse la deuda para cuya
garantia se pginoraron, mediante la prueba de haber ejercido diligencia en
la eleccion y direccion del dependiente negligente?
Esta distincion entre la culpa aquiliana, como fuente de unaobligacion, y la
culpa contractual, como mero incidente del cumplimientode un constrato,
ha sido con frecuencia reconocida por el Tribunal Supremo de Espaa.
(Sentencia de 27 de junio de 1894; 20 de noviembre de 1896, y 13 de
diciembre de 1896.) En la sentencia de 20 de noviembre de 1896 resulto
que la accion del demandante nacio ex contractu, pero que el demandado
trato de aprovecharse,como defensa, de las disposiciones del articulo
1.902 del Codigo Civil. El Tribunal Supremo de Espaa desestimo la
pretension del demandado, diciendo:
No se trata en estos asuntos de un dao causado, sin obligacion
preexistente, por culpa o negligencia, que es a lo que se refiere el articulo
1902 del Codigo Civil, invocado en los motivos 4 y 7, sinode los perjuicios
causados por la resistencia a cumplir el demandadolas obligaciones
determinadas por los contratos y disposiciones legalesquedan expuestos . .
. . (Congaco contra Manila Railroad Co., 38 Jur. Fil., pp. 825, 826 y 827.)
La sentencia en el asunto de Yamada contra ManilaRailroad Co. y Bacharach
Garage Taxicab Co. (33 Jur. Fil., 9, 24 de Diciembre, 1915) ha dado lugar a cierta
confusion en la mente de algunos. Tambien se trataba en aquel asunto de algunos
pasajeros que habian tomado en alquiler un atuomovil de Bachrach y que sufrieron
un accidente debido al choque del coche con un tren.El caso se decidio como culpa
extracontractual o aquiliana, pero estono dice nada en contra de la regla enunciada.
La explicacion de esta aparente desviacion es que las partes optaron por plantear el
caso bajo los articulos 1.902 y 1.903 del Codigo Civil y no hubo objecion de parte de
nadie. He aqui como lo explica esta Corte en el asunto varias veces citado
de Cangco contra Manila Railroad, que es posterior (1918), a saber:
Es por lo tanto evidente que, en su decision en el asunto de Yamada, el
Tribunal trato la accion del demandante como fundada en una obligacion
extracontractual, en lugar de considerarla como una accion nacida del
contrato de transporte. Un examen de los exritos de las partes y de sus
alegatos demustra que las cuestiones de derecho se plantearon
efectivamente bajo esta teoria. Desdeel punto de vista de la demandada, el
resultado practico hubiera sido igual en todo caso. Las pruebas
demuestran, sin dejar lugar ninguno a duda, que el conductor del automovil
de la sociedad demandada fue culpable de negligencia crasa, y que este
negligencia fue la causa inmediata de las lesiones sufirdas por el
demandante.Tambien constaba positivamente que la sociedad demandada
habia sido culpable de negligencia por su omision de adoptar las
precauciones debidas en la direccion y control de los conductores de sus
automoviles. La parte demandada era responsable, por lo tanto, de los
21
 danos y perjuicios sufridos por el demandante, y se considerase el
incumplimiento de su deber desde el punto de vista de la culpa aquiliana o
de la culpa contractual. Como hace ver Manresa (tomo 8, pags. 29 y 69),
ya ocurra la negligencia como incidente en el cumplimiento de un contrato,
o sea, en si misma,origen de una obligacion extracontractual, son identicos
sus caracteres esenciales. existe siempre un acto u omision productor del
demandado. Por consiguiente, cuando el Tribunal declara que el
demandado es responsable de los daos y perjuicios por haber dejado de
ejercerlo en la eleccion (culpa in eligeindo) y direccion (culpa in vigilando)
de sus criados, el resultado practico es identico en uno y otro caso. Por
consiguiente, resulta que no debe deducirse, porque el Tribunal haya
declarado, en el asunto de Yamada, que la parte demandada era
responsable de los daos y prjuicios inferidos por la negligencia de unos de
sus empleados a una persona con la cualsostenia relaciones contractuales,
y menciono el hecho de que la parte demandada habia sido negligente en
la eleccion y direccion de sus empleados, que hubiera declarado, si se
hubiese planteado la cuestion, y la accion se hubiera basado
estrictamenteen la teoria de la infraccion del contrato, que la parte
demandada podia librase de la responsabilidad nacida del incumplimiento
del contrato, mediante la prueba de haber ejercido el debido cuidado en la
eleccion y direcion del empleado. (Cangco contra Manila Railroad Co., 38
JUr. Fil., pp. 829 y 830.)
Aprovechamos esta oportunidad para reafirmar inequivocamente la regla sentada
en el referido asuntodeCangco contra Manila Railroad, por encima de cualquier
aparente desviacion que pudiera dar lugar a confusion y perplejidad Esa regla esta
apoyada en sentencias del Tribunal Supremo de Espaa y en los mas autorizados
tratadistas de derecho civil.
La ultima cuestion que tenemos que determinar y resolver es la cuantia de la
indemnizacion. En la sentencia del Tribunal de Apelacion se adjudica al demandante
la cantidad de P3,000 como "una adecuadacompensacion por los sufrimientos
(pains) y por la incapacidad para trabajardurante el tiempo en que estuvyo
inhabilitado para desempear el trabajoque tenia anteriormente." Como se ve, no se
fija separadamente la cantidad para compensar el dolor y los sufrimientos, ni la
suma paraindemnizar por la incapacidad temporal de trabajar. La pregunta en orden
es esta: cabe, bajo el codigo civil, igual que bajo el derecho amerciano, indemnizar
por el dolor y los sufrimientos?
Esta cuestion se planteo y resolvio frontalmente en el asunto de Marcelo contra
Velosco, decidido en 1908 bajo la ponencia del Magistrado Mr. Willard, quien, como
se sabe, habia escrito unos apuntes sobre el codigo civil, y con la aprobacion del
Presidente Sr. Arellano y de los Magistrados Sres. Torres, Mapa y Carson. No hubo
ninguna disidencia; el Magistrado Mr. Tracey no tomo parte."El hecho dijo
entonces la
Corte de que en los Estados Unidos proceda la indemnizacion de daos y
perjuicios en esta clase de casos por el dolor y el sufrimiento padecidos, no puede
afectar a la resolucion de caso de que se trata;"y concluye: "Declaramos, por tanto,
que este motivo de recurso carece de fundamento, y que no cabe condena alguna
de daos y perjuicios por el dolor y sufrimiento padecidos por la demandante en el
momento o despues del accidente." (Marcelo contra Velasco, 11 Jur. Fil., 299.)"No
hemos encontrado nada razona la Corte ni en las sentencias del Tribunal
Supremo de Espaa, ni en ningunode los Comentarios, que autorice una condena
por este respecto" (Supra, p. 298).
Esta doctrina se reafirmo en el asunto de Algarra contra Sandejas (1914), bajola
ponencia del Magistrado Mr. Trent. Esta Corte dijo entonces lo siguiente:
En los daos efectivos, segun el sistema americano, estan comprendidos
la recompensa pecuniaria por sufrimientos y dolores materiales, los daos
morales y otros de igual indole. El articulo 1902, tal como fue interpretado
por esta Corte en Marcelo contra Velasco (11 Jur.Fil., 295), no abarca tales
daos. Prescindiendo de esta excepcion, los daos y perjuicios efectivos
en esta jurisdiccion, en el sentido de que significan la compensacion justa
en orden a las perdidas sufridas, son casi sinomimas de los daos y
perjuicios efectivos segun el sistema americano. (Algarra contra Sandejas
27 Jur. Fil., p. 320.);
y se adjudicaron daos al demandante tan solo por los siguientes conceptos: "diez
pesos por gastos de asistencia medica; cien pesos por los meses de su ausencia
forzosa de su negocio; y doscientos cincuenta pesos por los daos y perjuicios
irrogados al mismo en concepto de perdida de las utilidades." Ninguna
indemnizacion se adjudico por dolor y sufrimiento.
En el asunto de Gutierrez contra Gutierrez, 56 Jur. Fil. 193, no se adjudico ninguna
indemnizacion por dolor y sufrimiento, sino "por los dao por la lesion a la pierna del
demandante que le puede causar una cojera permanente."
Posteriormente, sin embargo, en el asunto de Lilius contra Manila Railroad Co., 59
Jur. Fil., 800, (1934) se inicio una marcada desviacion de la antigua doctrina
concediendose daos patrimoniales y morales, a saber: a la esposa de Lilius, `por
una gran cicatriz que desfiguro su hermoso rostro y por una fractura de la pierra
derecha que le causo una deformidad permanente que le hacia muy dificil andar;" y
a la hija de Lilius, "por profundas cicatrices que desfiguraron permanentemente su
cara y por las fracturas de ambas piernas que le hacian dificil andar
desemarazadamente, haciendo necesario un continuo y sumo ciudado para
mantener el equilibrio, y afectando ell, ademas, muy desfavorablemente asus
posibilidades matrimoniales."
Esta evolucion de nuestra jurisprudencia estaba perfectamente justificada, pues
cuando se promulgo la sentencia en el asunto citado de Lilius ya no existia la falta
de precedentes en la jurisprudencia espaola que motivo la doctrina en el asunto
de Marcelo contra Velasco, supra, y en otros posteriores del mismo tipo.
Efectivamente, en 1912 el Tribunal Supremo de Espaa dicto una sentencia
transcendentalisima, adjudicando por primera vez una indemnizacion de daos
22
morales. Heaqui el comentario del Sr. Castan, actual Presidente del Tribunal
Supremo de Espana, sobre este giro revolucionario de la jurisprudencia espaola:
Jurisprudencia muy reiterada exige la existencia y prueba del dao para la
procedencia de la indemnizacion de daos y perjuicios.
De que naturaleza ha de ser ese dao? La doctrina cientifica admite que
todo dao, material o moral, siempre que sea real y verificado, da lugar a
reparacion. En nuestra Patria, la antigua jurisprudencia del Tribunal
Supremo (sentencia, por ejemplo, de 11 de marzo de 1899), rechazo los
daos morales; pero la mas reciente admite la resarcibilidad de estos.
Inicio esta direccionuna famosa sentencia de 6 de diciembre de 1912, que
condeno a cierta Empresa periodistica al pago de una fuerte indemnizacion
por la publicacion de noticias injuriosas, invocando precedentes del
Derecho patrio (ley 21, tit. IX, Partida VII) y la consideracion de que los
daos morales, sobre ser de los mas graves, llevan consigo, como
consectarios naturales y logicos, otros danos materiales y sociales. La
doctrina de esta sentencia esta confirmada por las de 14 dediciembre de
1917, 7 de noviembre de 1919, 15 de octubre de 1920, 12 de marzo, 10 de
julio de 1928, 31 de marzo de 1931 y 26 de mayo de 1943, dictadas
tambien en pleitos sobre danos al honor, reputacion o credito de las
personas. La determinacion de la cuantia de los daos se remite en ellas al
criterio prudencial del juzgador. (2 Castan, Derecho Civil Espaol, Comun y
Foral, 1943 ed. pp. 466-467.)
En otra sentencia mas especifica sobre lesiones, de 1941, el Tribunal Supremo de
Espaa declaro lo siguiente:
El delito de lesiones, como los demas contra las personas, supone un
dao, de orden fisico, y las consecuencias que de el se derivan, muchas de
ellas que efectan de modo directo al patrimonio familiar, esto sin contar
otras repercusiones que pueden darse en dicho patrimonio y que el
Tribunal pudo apreciar cuando fijo la indemnizacion y apreciandoeste las
pruebas en conciencia, sin que nada limite la libertad del juzgador, ello
impide casar la sentencia. (S. 14 de Febrero de 1941; 2 Rodriguez
Navarro, Doctrina Penal del Tribunal Supremo p. 2223.)
Y en otra sentencia de 1934, sobre indemnizacion de danos morales, el mismo
Tribunal sento la siguiente doctrina:
La responsabilidad civil no atiende unicamente a la reparacion de los danos
o perjuicios eminentemente materiales, ni se reduce solo a la satisfaccion
de los menoscabos economicos consistentes en un dano emergente o en
un lucro cesante, sino que comprende tambien los daos morales,
entendiendose por tales, tanto aquellos aminorandola actividad personal
debilitan la capacidad para obtener requezas, es decir, los daos morales
indirectamente economicos, como losconstituidos por el simple dolor moral,
aunque no tracienda a la esfera patrimonial, porque el Derecho Penal es un
derecho reparador, y el orden juridico perturbado por la accion criminal no
quedaria plenamente restablecido si no se atendiera a reparar dentro de lo
posible no solo el derecho violado y la seguridad social puesta en peligro,
sino las ultimas consecuencias apreciables de la accion delictiva, y si bien
la regulacion de los daos y perjuicios ocasionados por el delito es facultad
que compete al Tribunal de instancia, como la estamacion de los mismos
puede ser revisable en casacion, es necesario que tratandose de daos y
perjuicios patrimoniales o de daos morales indirectamente economicos,
siente la Audiencia sentenciadora entre los hechos que estime probados
los imprescindibles para deducir la efectividad del menoscabo patrimonial,
dao emergente, lucro cesante o disminucion de la capacidad economica,
pero tratandose de daos constituidos por el simple dolor moral no es
necesario sentar afirmaciones especificas que los determinen, pues siendo
tales daos consecuencia inmediata del hecho delictivo, en el que van
embebidos y supuestos, basta la determinacion del hecho punible para
poderlos apreciar como consecuencia natural de la accion criminosa
ejecutada. (S. 14 de Noviembre de 1934; tomo 131 Jur. Crim., p. 584; 2
Rodriguez Navarro, Doctrina Penal del Tribunal Supremo, pp. 2222-2223.)
Concluimos, pues, reafirmando la doctrina sentada en el asunto de Lilius supra, en
el sentido de que cabe indemnizar por daos morales y patrimoniales, incluyendose
en estos el dolor y sufrimiento fisico. Con esto efectuamos en esta jurisdiccion una
verdadera simbiosis del derecho hispano y derecho americano, y nos ponemos,
ademas, justamente a tono con el espiritu y la marcha progresiva de los tiempos.
No legislamos con esto judicialmente? De ningun modo. No introducimos ninguna
reforma en el codigo civil; todo lo que hacemos es ampliar la interpretacion del
concepto juridico del dao, incluyendo en el mismo el dao moral y dolor o
sufrimiento fisico; pero todo dentro del codigo. La famosa sentencia de 1912
Tribunal Supremo de Espaa de que habla el Sr. Castan no solo no extravasa los
confines del codigo civil, sino que va a las raices del mismo, "invocando
precendentes del derecho patrio ley 21, tit. IX, Partida VII," segun palabras
mismas del insigne tratadista.
En meritos de lo expuesto, se confirma la sentencia del Tribunal de Apelacion, con
las costas a cargo de la apelante. Asi se ordena.
Moran, Pres., Paras, Pablo, Bengzon and Montemayor, MM., estan conformes.
Feria, M., Me reservo el derecho de escribir una opinion disidente.
EN BANC
23
G.R. No. L-12191 October 14, 1918 platform where the accident occurred were difficult to discern especially to a person
emerging from a lighted car.
JOSE CANGCO, plaintiff-appellant,
vs. The explanation of the presence of a sack of melons on the platform where the
MANILA RAILROAD CO., defendant-appellee. 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
Ramon Sotelo for appellant. market. They were contained in numerous sacks which has been piled on the
Kincaid & Hartigan for appellee. 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.
FISHER, J.:

The plaintiff was drawn from under the car in an unconscious condition, and it
At the time of the occurrence which gave rise to this litigation the plaintiff, Jose
appeared that the injuries which he had received were very serious. He was
Cangco, was in the employment of Manila Railroad Company in the capacity of clerk,
therefore brought at once to a certain hospital in the city of Manila where an
with a monthly wage of P25. He lived in the pueblo of San Mateo, in the province of
examination was made and his arm was amputated. The result of this operation was
Rizal, which is located upon the line of the defendant railroad company; and in
unsatisfactory, and the plaintiff was then carried to another hospital where a second
coming daily by train to the company's office in the city of Manila where he worked,
operation was performed and the member was again amputated higher up near the
he used a pass, supplied by the company, which entitled him to ride upon the
shoulder. It appears in evidence that the plaintiff expended the sum of P790.25 in the
company's trains free of charge. Upon the occasion in question, January 20, 1915,
form of medical and surgical fees and for other expenses in connection with the
the plaintiff arose from his seat in the second class-car where he was riding and,
process of his curation.
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
On the side of the train where passengers alight at the San Mateo station there is a
upon the negligence of the servants and employees of the defendant in placing the
cement platform which begins to rise with a moderate gradient some distance away
sacks of melons upon the platform and leaving them so placed as to be a menace to
from the company's office and extends along in front of said office for a distance
the security of passenger alighting from the company's trains. At the hearing in the
sufficient to cover the length of several coaches. As the train slowed down another
Court of First Instance, his Honor, the trial judge, found the facts substantially as
passenger, named Emilio Zuiga, also an employee of the railroad company, got off
above stated, and drew therefrom his conclusion to the effect that, although
the same car, alighting safely at the point where the platform begins to rise from the
negligence was attributable to the defendant by reason of the fact that the sacks of
level of the ground. When the train had proceeded a little farther the plaintiff Jose
melons were so placed as to obstruct passengers passing to and from the cars,
Cangco stepped off also, but one or both of his feet came in contact with a sack of
nevertheless, the plaintiff himself had failed to use due caution in alighting from the
watermelons with the result that his feet slipped from under him and he fell violently
coach and was therefore precluded form recovering. Judgment was accordingly
on the platform. His body at once rolled from the platform and was drawn under the
entered in favor of the defendant company, and the plaintiff appealed.
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
The accident occurred between 7 and 8 o'clock on a dark night, and as the railroad
therefore constituted an effective legal cause of the injuries sustained by the plaintiff.
station was lighted dimly by a single light located some distance away, objects on the
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.

24
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.
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.
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 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 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
ofrespondeat 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 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.
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 extra-
contractual culpa exclusively. (Carmona vs. Cuesta, 20 Porto Rico Reports, 215.)
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:
25
 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
tantum and not juris et de jure, and consequently, may be rebutted. It
follows necessarily that if the employer shows to the satisfaction of the court
that in selection and supervision he has exercised the care and diligence of
a good father of a family, the presumption is overcome and he is relieved
from liability.
This theory bases the responsibility of the master ultimately on
his own negligence and not on that of his servant. This is the notable
peculiarity of the Spanish law of negligence. It is, of course, in striking
contrast to the American doctrine that, in relations with strangers, the
negligence of the servant in conclusively the negligence of the master.
The opinion there expressed by this Court, to the effect that in case of extra-
contractual 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.
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.
Every legal obligation must of necessity be extra-contractual or contractual. Extra-
contractual 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
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.
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.
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]).
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,
26
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
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?
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:
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.
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.
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.
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.
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
27
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
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.
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 non-
contractual 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
extra-contractual obligation had no contract existed between the parties.
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.
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
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.
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.
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:
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.)
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
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
28
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 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.
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.
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.
EN BANC

G.R. No. L-48930 February 23, 1944

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 ANTONIO VAZQUEZ, petitioner,
ground. The distance from the steps of the car to the spot where the alighting vs.
passenger would place his feet on the platform was thus reduced, thereby FRANCISCO DE BORJA, respondent.
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 x---------------------------------------------------------x
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 G.R. No. L-48931 February 23, 1944
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 FRANCISCO DE BORJA, petitioner,
is to say, whether the passenger acted prudently or recklessly the age, sex, and vs.
physical condition of the passenger are circumstances necessarily affecting the ANTONIO VAZQUEZ, respondent.
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
OZAETA, J.:
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
This action was commenced in the Court of First Instance of Manila by Francisco de
was his daily custom to get on and of the train at this station. There could, therefore,
Borja against Antonio Vazquez and Fernando Busuego to recover from them jointly
be no uncertainty in his mind with regard either to the length of the step which he
and severally the total sum of P4,702.70 upon three alleged causes of action, to wit:
was required to take or the character of the platform where he was alighting. Our
First, that in or about the month of January, 1932, the defendants jointly and
conclusion is that the conduct of the plaintiff in undertaking to alight while the train
severally obligated themselves to sell to the plaintiff 4,000 cavans of palay at P2.10
was yet slightly under way was not characterized by imprudence and that therefore
per cavan, to be delivered during the month of February, 1932, the said defendants
he was not guilty of contributory negligence.
having subsequently received from the plaintiff in virtue of said agreement the sum of
P8,400; that the defendants delivered to the plaintiff during the months of February,
The evidence shows that the plaintiff, at the time of the accident, was earning P25 a
March, and April, 1932, only 2,488 cavans of palay of the value of P5,224.80 and
month as a copyist clerk, and that the injuries he has suffered have permanently
refused to deliver the balance of 1,512 cavans of the value of P3,175.20
disabled him from continuing that employment. Defendant has not shown that any
notwithstanding repeated demands. Second, that because of defendants' refusal to
other gainful occupation is open to plaintiff. His expectancy of life, according to the
deliver to the plaintiff the said 1,512 cavans of palay within the period above
standard mortality tables, is approximately thirty-three years. We are of the opinion
mentioned, the plaintiff suffered damages in the sum of P1,000. And, third, that on
29
account of the agreement above mentioned the plaintiff delivered to the defendants
4,000 empty sacks, of which they returned to the plaintiff only 2,490 and refused to
deliver to the plaintiff the balance of 1,510 sacks or to pay their value amounting to
P377.50; and that on account of such refusal the plaintiff suffered damages in the
sum of P150.
The defendant Antonio Vazquez answered the complaint, denying having entered
into the contract mentioned in the first cause of action in his own individual and
personal capacity, either solely or together with his codefendant Fernando Busuego,
and alleging that the agreement for the purchase of 4,000 cavans of palay and the
payment of the price of P8,400 were made by the plaintiff with and to the Natividad-
Vasquez Sabani Development Co., Inc., a corporation organized and existing under
the laws of the Philippines, of which the defendant Antonio Vazquez was the acting
manager at the time the transaction took place. By way of counterclaim, the said
defendant alleged that he suffered damages in the sum of P1,000 on account of the
filing of this action against him by the plaintiff with full knowledge that the said
defendant had nothing to do whatever with any and all of the transactions mentioned
in the complaint in his own individual and personal capacity.
The trial court rendered judgment ordering the defendant Antonio Vazquez to pay to
the plaintiff the sum of P3,175.20 plus the sum of P377.50, with legal interest on both
sums, and absolving the defendant Fernando Busuego (treasurer of the corporation)
from the complaint and the plaintiff from the defendant Antonio Vazquez'
counterclaim. Upon appeal to the Court of Appeals, the latter modified that judgment
by reducing it to the total sum of P3,314.78, with legal interest thereon and the costs.
But by a subsequent resolution upon the defendant's motion for reconsideration, the
Court of Appeals set aside its judgment and ordered that the case be remanded to
the court of origin for further proceedings. The defendant Vazquez, not being
agreeable to that result, filed the present petition for certiorari (G.R. No. 48930) to
review and reverse the judgment of the Court of Appeals; and the plaintiff Francisco
de Borja, excepting to the resolution of the Court of Appeals whereby its original
judgment was set aside and the case was ordered remanded to the court of origin for
further proceedings, filed a cross-petition for certiorari (G.R. No. 48931) to maintain
the original judgment of the Court of Appeals.
The original decision of the Court of Appeals and its subsequent resolutions on
reconsideration read as follows:
Es hecho no controvertido que el 25 de Febrero de 1932, el demandado-
apelante vendio al demandante 4,000 cavanes de palay al precio de P2.10
el cavan, de los cuales, dicho demandante solamente recibio 2,583
cavanes; y que asimismo recibio para su envase 4,000 sacos vacios. Esta
provbado que de dichos 4,000 sacos vacios solamente se entregaron,
2,583 quedando en poder del demandado el resto, y cuyo valor es el de
P0.24 cada uno. Presentada la demanda contra los demandados Antonio
Vazquez y Fernando Busuego para el pago de la cantidad de P4,702.70,
con sus intereses legales desde el 1.o de marzo de 1932 hasta su
completo pago y las costas, el Juzgado de Primera Instancia de Manila el
asunto condenando a Antonio Vazquez a pagar al demandante la cantidad
de P3,175.20, mas la cantidad de P377.50, con sus intereses legales,
absolviendo al demandado Fernando Busuego de la demanda y al
demandante de la reconvencion de los demandados, sin especial
pronunciamiento en cuanto a las costas. De dicha decision apelo el
demandado Antonio Vazquez, apuntado como principal error el de que el
habia sido condenado personalmente, y no la corporacion por el
representada.
Segun la preponderancia de las pruebas, la venta hecha por Antonio
Vazquez a favor de Francisco de Borja de los 4,000 cavanes de palay fue
en su capacidad de Presidente interino y Manager de la corporacion
Natividad-Vazquez Sabani Development Co., Inc. Asi resulta del Exh. 1,
que es la copia al carbon del recibo otorgado por el demandado Vazquez, y
cuyo original lo habia perdido el demandante, segun el. Asi tambien consta
en los libros de la corporacion arriba mencionada, puesto que en los
mismos se ha asentado tanto la entrada de los P8,400, precio del palay,
como su envio al gobierno en pago de los alquileres de la Hacienda
Sabani. Asi mismo lo admitio Francisco de Borja al abogado Sr. Jacinto
Tomacruz, posterior presidente de la corporacion sucesora en el
arrendamiento de la Sabani Estate, cuando el solicito sus buenos oficios
para el cobro del precio del palay no entregado. Asi igualmente lo declaro
el que hizo entrega de parte del palay a Borja, Felipe Veneracion, cuyo
testimonio no ha sido refutado. Y asi se deduce de la misma demanda,
cuando se incluyo en ella a Fernando Busuego, tesorero de la Natividad-
Vazquez Sabani Development Co., Inc.
Siendo esto asi, la principal responsable debe ser la Natividad-Vazquez
Sabani Development Co., Inc., que quedo insolvente y dejo de existir. El
Juez sentenciador declaro, sin embargo, al demandado Vazquez
responsable del pago de la cantidad reclamada por su negligencia al
vender los referidos 4,000 cavanes de palay sin averiguar antes si o no
dicha cantidad existia en las bodegas de la corporacion.
Resulta del Exh. 8 que despues de la venta de los 4,000 cavanes de palay
a Francisco de Borja, el mismo demandado vendio a Kwong Ah Phoy 1,500
30
 cavanes al precio de P2.00 el cavan, y decimos 'despues' porque esta
ultima venta aparece asentada despues de la primera. Segun esto, el
apelante no solamente obro con negligencia, sino interviniendo culpa de su
parte, por lo que de acuerdo con los arts. 1102, 1103 y 1902 del Codigo
Civil, el debe ser responsable subsidiariamente del pago de la cantidad
objecto de la demanda.
En meritos de todo lo expuesto, se confirma la decision apelada con la
modificacion de que el apelante debe pagar al apelado la suma de
P2,295.70 como valor de los 1,417 cavanes de palay que dejo de entregar
al demandante, mas la suma de P339.08 como importe de los 1,417 sacos
vacios, que dejo de devolver, a razon de P0.24 el saco, total P3,314.78,
con sus intereses legales desde la interposicion de la demanda y las costas
de ambas instancias.
Vista la mocion de reconsideracion de nuestra decision de fecha 13 de
Octubre de 1942, y alegandose en la misma que cuando el apelante vendio
los 1,500 cavanes de palay a Ah Phoy, la corporacion todavia tenia
bastante existencia de dicho grano, y no estando dicho extremo
suficientemente discutido y probado, y pudiendo variar el resultado del
asunto, dejamos sin efecto nuestra citada decision, y ordenamos la
devolucion de la causa al Juzgado de origen para que reciba pruebas al
efecto y dicte despues la decision correspondiente.
Upon consideration of the motion of the attorney for the plaintiff-appellee in
case CA-G.R. No. 8676,Francisco de Borja vs. Antonio Vasquez et al.,
praying, for the reasons therein given, that the resolution of December 22,
1942, be reconsidered: Considering that said resolution remanding the case
to the lower court is for the benefit of the plaintiff-appellee to afford him
opportunity to refute the contention of the defendant-appellant Antonio
Vazquez, motion denied.
The action is on a contract, and the only issue pleaded and tried is whether the
plaintiff entered into the contract with the defendant Antonio Vazquez in his personal
capacity or as manager of the Natividad-Vazquez Sabani Development Co., Inc. The
Court of Appeals found that according to the preponderance of the evidence "the
sale made by Antonio Vazquez in favor of Francisco de Borja of 4,000 cavans of
palay was in his capacity as acting president and manager of the corporation
Natividad-Vazquez Sabani Development Co., Inc." That finding of fact is final and, it
resolving the only issue involved, should be determinative of the result.
The Court of Appeals doubly erred in ordering that the cause be remanded to the
court of origin for further trial to determine whether the corporation had sufficient
stock of palay at the time appellant sold, 1500 cavans of palay to Kwong Ah Phoy.
First, if that point was material to the issue, it should have been proven during the
trial; and the statement of the court that it had not been sufficiently discussed and
proven was no justification for ordering a new trial, which, by the way, neither party
had solicited but against which, on the contrary, both parties now vehemently
protest. Second, the point is, in any event, beside the issue, and this we shall now
discuss in connection with the original judgment of the Court of Appeals which the
plaintiff cross-petitioner seeks to maintain.
The action being on a contract, and it appearing from the preponderance of the
evidence that the party liable on the contract is the Natividad-Vazquez Sabani
Development Co., Inc. which is not a party herein, the complaint should have been
dismissed. Counsel for the plaintiff, in his brief as respondent, argues that altho by
the preponderance of the evidence the trial court and the Court of Appeals found that
Vazquez celebrated the contract in his capacity as acting president of the corporation
and altho it was the latter, thru Vazquez, with which the plaintiff had contracted and
which, thru Vazquez, had received the sum of P8,400 from Borja, and altho that was
true from the point of view of a legal fiction, "ello no impede que tambien sea verdad
lo alegado en la demanda de que la misma persona de Vasquez fue la que contrato
con Borja y que la misma persona de Vasquez fue quien recibio la suma de P8,400."
But such argument is invalid and insufficient to show that the president of the
corporation is personally liable on the contract duly and lawfully entered into by him
in its behalf.
It is well known that a corporation is an artificial being invested by law with a
personality of its own, separate and distinct from that of its stockholders and from
that of its officers who manage and run its affairs. The mere fact that its personality is
owing to a legal fiction and that it necessarily has to act thru its agents, does not
make the latter personally liable on a contract duly entered into, or for an act lawfully
performed, by them for an in its behalf. The legal fiction by which the personality of a
corporation is created is a practical reality and necessity. Without it no corporate
entities may exists and no corporate business may be transacted. Such legal fiction
may be disregarded only when an attempt is made to use it as a cloak to hide an
unlawful or fraudulent purpose. No such thing has been alleged or proven in this
case. It has not been alleged nor even intimated that Vazquez personally benefited
by the contract of sale in question and that he is merely invoking the legal fiction to
avoid personal liability. Neither is it contended that he entered into said contract for
the corporation in bad faith and with intent to defraud the plaintiff. We find no legal
and factual basis upon which to hold him liable on the contract either principally or
subsidiarily.
31
The trial court found him guilty of negligence in the performance of the contract and this action against him is in our estimation not wholly right. Altho from the legal point
held him personally liable on that account. On the other hand, the Court of Appeals of view he was not personally liable for the fulfillment of the contract entered into by
found that he "no solamente obro con negligencia, sino interveniendo culpa de su him on behalf of the corporation of which he was the acting president and manager,
parte, por lo que de acuerdo con los arts. 1102, 1103 y 1902 del Codigo Civil, el we think it was his moral duty towards the party with whom he contracted in said
debe ser responsable subsidiariamente del pago de la cantidad objeto de la capacity to see to it that the corporation represented by him fulfilled the contract by
demanda." We think both the trial court and the Court of Appeals erred in law in so delivering the palay it had sold, the price of which it had already received. Recreant
holding. They have manifestly failed to distinguish a contractual from an to such duty as a moral person, he has no legitimate cause for indignation. We feel
extracontractual obligation, or an obligation arising from contract from an obligation that under the circumstances he not only has no cause of action against the plaintiff
arising from culpa aquiliana. The fault and negligence referred to in articles 1101- for damages but is not even entitled to costs.
1104 of the Civil Code are those incidental to the fulfillment or nonfullfillment of a
contractual obligation; while the fault or negligence referred to in article 1902 is The judgment of the Court of Appeals is reversed, and the complaint is hereby
the culpa aquiliana of the civil law, homologous but not identical to tort of the dismissed, without any finding as to costs.
common law, which gives rise to an obligation independently of any contract. (Cf.
Manila R.R. Co. vs. Cia. Trasatlantica, 38 Phil., 875, 887-890; Cangco vs. Manila
R.R. Co., 38 Phil. 768.) The fact that the corporation, acting thru Vazquez as its
manager, was guilty of negligence in the fulfillment of the contract, did not make
Vazquez principally or even subsidiarily liable for such negligence. Since it was the
corporation's contract, its nonfulfillment, whether due to negligence or fault or to any EN BANC
other cause, made the corporation and not its agent liable.
G.R. No. L-14335 January 28, 1920
On the other hand if independently of the contract Vazquez by his fault or negligence
cause damaged to the plaintiff, he would be liable to the latter under article 1902 of MANUEL DE GUIA, plaintiff-appellant,
the Civil Code. But then the plaintiff's cause of action should be based on culpa vs.
aquiliana and not on the contract alleged in his complaint herein; and Vazquez' THE MANILA ELECTRIC RAILROAD & LIGHT COMPANY, defendant-appellant.
liability would be principal and not merely subsidiary, as the Court of Appeals has
erroneously held. No such cause of action was alleged in the complaint or tried by
Sumulong and Estrada, Crossfield and O'Brien and Francisco A. Delgado for
express or implied consent of the parties by virtue of section 4 of Rule 17. Hence the
plaintiff-appellant.
trial court had no jurisdiction over the issue and could not adjudicate upon it
Lawrence and Ross for defendant-appellant.
(Reyes vs. Diaz, G.R. No. 48754.) Consequently it was error for the Court of Appeals
to remand the case to the trial court to try and decide such issue.
STREET, J.:

It only remains for us to consider petitioner's second assignment of error referring to

the lower courts' refusal to entertain his counterclaim for damages against the
respondent Borja arising from the bringing of this action. The lower courts having
sustained plaintiff's action. The finding of the Court of Appeals that according to the
preponderance of the evidence the defendant Vazquez celebrated the contract not in
his personal capacity but as acting president and manager of the corporation, does
not warrant his contention that the suit against him is malicious and tortious; and
since we have to decide defendant's counterclaim upon the facts found by the Court
of Appeals, we find no sufficient basis upon which to sustain said counterclaim.
Indeed, we feel that a a matter of moral justice we ought to state here that the
indignant attitude adopted by the defendant towards the plaintiff for having brought
This is an appeal prosecuted both by the plaintiff and the defendant from a judgment
of the Court of First Instance of the City of Manila, whereby the plaintiff was awarded
the sum of P6,100, with interest and costs, as damages incurred by him in
consequence of physical injuries sustained while riding on one of the defendant's
car.
The accident which gave rise to the litigation occurred on September 4, 1915, near
the end of the street-car line in Caloocan, Rizal, a northern suburb of the city of
Manila. It appears that, at about 8 o'clock p.m., of the date mentioned, the plaintiff
Manuel de Guia, a physician residing in Caloocan, boarded a car at the end of the

32
line with the intention of coming to the city. At about 30 meters from the starting point
the car entered a switch, the plaintiff remaining on the back platform holding the
handle of the right-hand door. Upon coming out of the switch, the small wheels of the
rear truck left the track, ran for a short distance along the macadam filling, which was
flush with the rails, and struck a concrete post at the left of the tract. The post was
shattered; and as the car stopped the plaintiff was thrown against the door with some
violence, receiving bruises and possibly certain internal injuries, the extent of which
is a subject of dispute.
The trial court found that the motorman of the derailed car was negligent in having
maintained too rapid a speed. This inference appears to be based chiefly upon the
results of the shock, involving the shattering of the post and the bending of the
kingpost of the car. It is insisted for the defendant company that the derailment was
due to the presence of a stone, somewhat larger than a goose egg, which had
become accidentally lodged between the rails at the juncture of the switch and which
was unobserved by the motorman. In this view the derailment of the car is supposed
to be due to casus fortuitos and not chargeable to the negligence of the motorman.
Even supposing that the derailment of the car was due to the accidental presence of
such a stone as suggested, we do not think that the existence of negligence is
disproved. The motorman says that upon approaching the switch he reduced the
electrical energy to the point that the car barely entered the switch under its own
momentum, and this operation was repeated as he passed out. Upon getting again
on the straight tract he put the control successively at points one, two, three and
lastly at point four. At the moment when the control was placed at point four he
perceived that the rear wheels were derailed and applied the brake; but at the same
instant the car struck the post, some 40 meters distant from the exit of the switch.
One of the defendant's witnesses stated in court that the rate of a car propelled by
electricity with the control at point "four" should be about five or 6 miles per hour.
There was some other evidence to the effect that the car was behind schedule time
and that it was being driven after leaving the switch, at a higher rate than would
ordinarily be indicated by the control at point four. This inference is rendered more
tenable by the circumstance that the car was practically empty. On the whole, we are
of the opinion that the finding of negligence in the operation of the car must be
sustained, as not being clearly contrary to the evidence; not so much because of
excessive speed as because of the distance which the car was allowed to run with
the front wheels of the rear truck derailed. It seems to us than an experienced and
attentive motorman should have discovered that something was wrong and would
have stopped before he had driven the car over the entire distance from the point
where the wheels left the track to the place where the post was struck.
The conclusion being accepted that there was negligence on the part of the
motorman in driving the car, it results that the company is liable for the damage
resulting to the plaintiff as a consequence of that negligence. The plaintiff had
boarded the car as a passenger for the city of Manila and the company undertook to
convey him for hire. The relation between the parties was, therefore, of a contractual
nature, and the duty of the carrier is to be determined with reference to the principles
of contract law, that is, the company was bound to convey and deliver the plaintiff
safely and securely with reference to the degree of care which, under the
circumstances, is required by law and custom applicable to the case (art. 1258, Civil
Code). Upon failure to comply with that obligation the company incurred the liability
defined in articles 1103-1107 of the Civil Code. (Cangco vs. Manila Railroad
Company, 38 Phil. Rep., 768; Manila Railroad Company vs. Compaia
Transatlantica, and Atlantic, Gulf & Pacific Co., 38 Phil. Rep., 875.)
From the nature of the liability thus incurred, it is clear that the defendant company
can not avail itself of the last paragraph of article 1903 of the Civil Code, since that
provision has reference to liability incurred by negligence in the absence of
contractual relation, that is, to the culpa aquiliana of the civil law. It was therefore
irrelevant for the defendant company to prove, as it did, that the company had
exercised due care in the selection and instruction of the motorman who was in
charge of its car and that he was in fact an experienced and reliable servant.
At this point, however, it should be observed that although in case like this the
defendant must answer for the consequences of the negligence of its employee, the
court has the power to moderate liability according to the circumstances of the case
(art. 1103, Civ. Code): Furthermore, we think it obvious that an employer who has in
fact displayed due diligence in choosing and instructing his servants is entitled to be
considered a debtor in good faith, within the meaning of article 1107 of the same
Code. Construing these two provisions together, applying them to the facts of this
case, it results that the defendant's liability is limited to such damages as might, at
the time of the accident, have been reasonably foreseen as a probable consequence
of the physical injuries inflicted upon the plaintiff and which were in fact a necessary
result of those injuries. There is nothing novel in this proposition, since both the civil
and the common law are agreed upon the point that the damages ordinarily
recoverable for the breach of a contractual obligation, against a person who has
acted in good faith, are such as can reasonably be foreseen at the time the
obligation is contracted. In Daywalt vs. Corporacion de PP. Agustinos Recoletos (39
Phil., 587), we said: "The extent of the liability for the breach of a contract must be
determined in the light of the situation in existence at the time the contract is made;
and the damages ordinarily recoverable are in all events limited to such as might be
reasonably foreseen in the light of the facts then known to the contracting parties."
33
This brings us to consider the amount which may be awarded to the plaintiff as
damages. Upon this point the trial judge found that, as a result of the physical and
nervous derangement resulting from the accident, Dr. De Guia was unable properly
to attend to his professional labors for three months and suspended his practice for
that period. It was also proved by the testimony of the plaintiff that his customary
income, as a physician, was about P300 per month. The trial judge accordingly
allowed P900, as damages for loss of professional earnings. This allowance is
attacked upon appeal by the defendant as excessive both as to the period and rate
of allowance. Upon examining the evidence we fell disinclined to disturb this part of
the judgment, though it must be conceded that the estimate of the trial judge on this
point was liberal enough to the plaintiff.
Another item allowed by the trial judge consists of P3,900, which the plaintiff is
supposed to have lost by reason of his inability to accept a position as district health
officer in Occidental Negros. It appears in this connection that Mr. Alunan,
representative from Occidental Negros, had asked Dr. Montinola, who supposedly
had the authority to make the appointment, to nominate the plaintiff to such position.
The job was supposed to be good for two years, with a salary of P1,600 per annum,
and possibility of outside practice worth P350. Accepting these suggestions as true,
it is evident that the damages thus incurred are too speculative to be the basis of
recovery in a civil action. This element of damages must therefore be eliminated. It
goes without saying that damage of this character could not, at the time of the
accident, have been foreseen by the delinquent party as a probable consequence of
the injury inflicted a circumstance which makes applicable article 1107 of the Civil
Code, as already expounded.
The last element of damages to be considered is the item of the plaintiff's doctor's
bills, a subject which we momentarily pass for discussion further on, since the
controversy on this point can be more readily understood in connection with the
question raised by the plaintiff's appeal.
The plaintiff alleges in the complaint that the damages incurred by him as a result of
the injuries in question ascend to the amount of P40,000. Of this amount the sum of
P10,000 is supposed to represent the cost of medical treatment and other expenses
incident to the plaintiff's cure, while the remainder (P30,000) represents the damage
resulting from the character of his injuries, which are supposedly such as to
incapacitate him for the exercise of the medical profession in the future. In support of
these claims the plaintiff introduced evidence, consisting of his own testimony and
that of numerous medical experts, tending to show that as a result of the injuries in
question he had developed infarct of the liver and traumatic neurosis, accompanied
by nervousness, vertigo, and other disturbing symptoms of a serious and permanent
character, it being claimed that these manifestations of disorder rendered him liable
to a host of other dangerous diseases, such as pleuresy, tuberculosis, pneumonia,
and pulmonary gangrene, and that restoration to health could only be accomplished,
if at all, after long years of complete repose. The trial judge did not take these
pretensions very seriously, and, as already stated, limited the damages to the three
items of professional earnings, expenses of medical treatment, and the loss of the
appointment as medical treatment, and the loss of the appointment as medical
inspector in Occidental Negros. As the appeal of the plaintiff opens the whole case
upon the question of damages, it is desirable to present a somewhat fuller statement
than that already given with respect to extent and character of the injuries in
question.
The plaintiff testified that, at the time the car struck against the concrete post, he was
standing on the rear platform, grasping the handle of the right-hand door. The shock
of the impact threw him forward, and the left part of his chest struck against the door
causing him to fall. In falling, the plaintiff says, his head struck one of the seats and
he became unconscious. He was presently taken to his home which was only a short
distance away, where he was seen at about 10 o'clock p. m., by a physician in the
employment of the defendant company. This physician says that the plaintiff was
then walking about and apparently suffering somewhat from bruises on his chest. He
said nothing about his head being injured and refused to go to a hospital. Later,
during the same night Dr. Carmelo Basa was called in to see the plaintiff. This
physician says that he found Doctor De Guia lying in bed and complaining of a
severe pain in the side. During the visit of Doctor Basa the plaintiff several times spit
up blood, a manifestation no doubt due to the effects of the bruises received in his
side. The next day Doctor De Guia went into Manila to consult another physician,
Doctor Miciano, and during the course of a few weeks he called into consultation
other doctors who were introduced as witnesses in his behalf at the trial of this case.
According to the testimony of these witnesses, as well as that of the plaintiff himself,
the symptoms of physical and nervous derangement in the plaintiff speedily
developed in portentous degree.
Other experts were introduced by the defendant whose testimony tended to show
that the plaintiff's injuries, considered in their physical effects, were trivial and that
the attendant nervous derangement, with its complicated train of ailments, was
merely simulated.
Upon this question the opposing medical experts ventilated a considerable mass of
professional learning with reference to the nature and effects of the baffling disease
known as traumatic neurosis, or traumatic hysteria a topic which has been the
occasion of much controversy in actions of this character in the tribunals of Europe
and America. The subject is one of considerable interest from a medico-legal point of
view, but we deem it unnecessary in this opinion to enter upon a discussion of its
34
voluminous literature. It is enough to say that in our opinion the plaintiff's case for
large damages in respect to his supposed incapacitation for future professional
practice is not made out. Of course in this jurisdiction damages can not be assessed
in favor of the plaintiff as compensation for the physical or mental pain which he may
have endured (Marcelo vs. Velasco, 11 Phil. Rep. 287); and the evidence relating to
the injuries, both external and internal, received by him must be examined chiefly in
its bearing upon his material welfare, that is, in its results upon his earning capacity
and the expenses incurred in restoration to the usual condition of health.
The evidence before us shows that immediately after the accident in question Doctor
De Guia, sensing in the situation a possibility of profit, devoted himself with great
assiduity to the promotion of this litigation; and with the aid of his own professional
knowledge, supplemented by suggestions obtained from his professional friends and
associates, he enveloped himself more or less unconsciously in an atmosphere of
delusion which rendered him incapable of appreciating at their true value the
symptoms of disorder which he developed. The trial court was in our opinion fully
justified in rejecting the exaggerated estimate of damages thus created.
We now pass to the consideration of the amount allowed to the plaintiff by the trial
judge as the expense incurred for medical service. In this connection Doctor Montes
testified that he was first called to see the plaintiff upon September 14, 1915, when
he found him suffering from traumatic neurosis. Three months later he was called
upon to treat the same patient for an acute catarrhal condition, involving disturbance
in the pulmonary region. The treatment for this malady was successful after two
months, but at the end of six months the same trouble recurred and required further
treatment. In October of the year 1916, or more than a year after the accident in
question occurred, Doctor Montes was called in consultation with Doctor Guerrero to
make an examination of the plaintiff. Doctor Montes says that his charges altogether
for services rendered to the plaintiff amount to P350, of which the sum of P200 had
been paid by the plaintiff upon bills rendered from time to time. This physician
speaks in the most general terms with respect to the times and extent of the services
rendered; and it is by no means clear that those services which were rendered many
months, or year, after the accident had in fact any necessary or legitimate relation to
the injuries received by the plaintiff. In view of the vagueness and uncertainty of the
testimony relating to Doctor Montes' services, we are of the opinion that the sum of
P200, or the amount actually paid to him by the plaintiff, represents the extent of the
plaintiff's obligation with respect to treatment for said injuries.
With regard to the obligation supposedly incurred by the plaintiff to three other
physicians, we are of the opinion that they are not a proper subject of recovery in this
action; and this for more than one reason. In the first place, it does not appear that
said physicians have in fact made charges for those services with the intention of
imposing obligations on the plaintiff to pay for them. On the contrary it would seem
that said services were gratuitously rendered out of courtesy to the plaintiff as a
member of the medical profession. The suggestions made on the stand by these
physicians to the effect that their services were worth the amounts stated by them
are not sufficient to proved that the plaintiff had incurred the obligation to pay those
amounts. In the second place, we are convinced that in employing so many
physicians the plaintiff must have had in view of the successful promotion of the
issue of this lawsuit rather than the bona fide purpose of effecting the cure of his
injuries. In order to constitute a proper element of recovery in an action of this
character, the medical service for which reimbursement is claimed should not only be
such as to have created a legal obligation upon the plaintiff but such as was
reasonably necessary in view of his actual condition. It can not be permitted that a
litigant should retain an unusual and unnecessary number of professional experts
with a view to the successful promotion of a lawsuit and expect to recover against his
adversary the entire expense thus incurred. His claim for medical services must be
limited to such expenditures as were reasonably suited to the case.
The second error assigned in the brief of the defendant company presents a
question of practice which, though not vital to the solution of this case, is of sufficient
general importance to merit notice. It appears that four of the physicians examined
as witnesses for the plaintiff had made written statements at various dates certifying
the results of their respective examinations into the condition of the plaintiff. When
these witnesses were examined in court the identified their respective signatures to
these certificates and the trial judge, over the defendant's objection, admitted the
documents as primary evidence in the case. This was undoubtedly erroneous. A
document of this character is not primary evidence in any sense, since it is
fundamentally of a hearsay nature; and the only legitimate use to which one of these
certificates could be put, as evidence for the plaintiff, was to allow the physician who
issued it to refer thereto to refresh his memory upon details which he might have
forgotten. In Zwangizer vs. Newman (83 N. Y. Supp., 1071) which was also an action
to recover damages for personal injury, it appeared that a physician, who had been
sent by one of the parties to examine the plaintiff, had made at the time a written
memorandum of the results of the examination; and it was proposed to introduce this
document in evidence at the trial. It was excluded by the trial judge, and it was held
upon appeal that this was proper. Said the court: "There was no failure or exhaustion
of the memory, and no impeachment of the memorandum on cross-examination; and
the document was clearly incompetent as evidence in chief."
It results from the foregoing that the judgment appealed from must be modified by
reducing the amount of the recovery to eleven hundred pesos (1,100), with legal
interest from November 8, 1916. As thus modified the judgment is affirmed, without
any special pronouncement as to costs of this instance. So ordered.
35

EN BANC
G.R. No. L-29462 March 7, 1929
IGNACIO DEL PRADO, plaintiff-appellee,
vs.
MANILA ELECTRIC CO., defendant-appellant.
Ross, Lawrence and Selph and Antonio T. Carrascoso, jr., for appellant.
Vicente Sotto for appellee.
STREET, J.:
This action was instituted in the Court of First Instance of Manila by Ignacio del
Prado to recover damages in the amount of P50,000 for personal injuries alleged to
have been caused by the negligence of te defendant, the Manila Electric Company,
in the operation of one of its street cars in the City of Manila. Upon hearing the cause
the trial court awarded to the plaintiff the sum of P10,000, as damages, with costs of
suit, and the defendant appealed.
The appellant, the Manila Electric Company, is engaged in operating street cars in
the City for the conveyance of passengers; and on the morning of November 18,
1925, one Teodorico Florenciano, as appellant's motorman, was in charge of car No.
74 running from east to west on R. Hidalgo Street, the scene of the accident being at
a point near the intersection of said street and Mendoza Street. After the car had
stopped at its appointed place for taking on and letting off passengers, just east of
the intersection, it resumed its course at a moderate speed under the guidance of
the motorman. The car had proceeded only a short distance, however, when the
plaintiff, Ignacio del Prado, ran across the street to catch the car, his approach being
made from the left. The car was of the kind having entrance and exist at either end,
and the movement of the plaintiff was so timed that he arrived at the front entrance
of the car at the moment when the car was passing.
The testimony of the plaintiff and of Ciriaco Guevara, one of his witnesses, tends to
shows that the plaintiff, upon approaching the car, raised his hand as an indication to
the motorman of his desire to board the car, in response to which the motorman
eased up a little, without stopping. Upon this the plaintiff seized, with his hand, the
front perpendicular handspot, at the same time placing his left foot upon the platform.
However, before the plaintiff's position had become secure, and even before his
raised right foot had reached the flatform, the motorman applied the power, with the
result that the car gave a slight lurch forward. This sudden impulse to the car caused
the plaintiff's foot to slip, and his hand was jerked loose from the handpost, He
therefore fell to the ground, and his right foot was caught and crushed by the moving
car. The next day the member had to be amputated in the hospital. The witness,
Ciriaco Guevara, also stated that, as the plaintiff started to board the car, he grasped
the handpost on either side with both right and left hand. The latter statement may
possibly be incorrect as regards the use of his right hand by the plaintiff, but we are
of the opinion that the finding of the trial court to the effect that the motorman slowed
up slightly as the plaintiff was boarding the car that the plaintiff's fall was due in part
at lease to a sudden forward movement at the moment when the plaintiff put his foot
on the platform is supported by the evidence and ought not to be disturbed by us.
The motorman stated at the trial that he did not see the plaintiff attempting to board
the car; that he did not accelerate the speed of the car as claimed by the plaintiff's
witnesses; and that he in fact knew nothing of the incident until after the plaintiff had
been hurt and some one called to him to stop. We are not convinced of the complete
candor of this statement, for we are unable to see how a motorman operating this
car could have failed to see a person boarding the car under the circumstances
revealed in this case. It must be remembered that the front handpost which, as all
witness agree, was grasped by the plaintiff in attempting to board the car, was
immediately on the left side of the motorman.
With respect to the legal aspects of the case we may observe at the outset that there
is no obligation on the part of a street railway company to stop its cars to let on
intending passengers at other points than those appointed for stoppage. In fact it
would be impossible to operate a system of street cars if a company engage in this
business were required to stop any and everywhere to take on people who were too
indolent, or who imagine themselves to be in too great a hurry, to go to the proper
places for boarding the cars. Nevertheless, although the motorman of this car was
not bound to stop to let the plaintiff on, it was his duty to do act that would have the
effect of increasing the plaintiff's peril while he was attempting to board the car. The
premature acceleration of the car was, in our opinion, a breach of this duty.
The relation between a carrier of passengers for hire and its patrons is of a
contractual nature; and in failure on the part of the carrier to use due care in carrying
its passengers safely is a breach of duty (culpa contructual) under articles 1101,
1103 and 1104 of the Civil Code. Furthermore, the duty that the carrier of
passengers owes to its patrons extends to persons boarding the cars as well as to
those alighting therefrom. The case of Cangco vs. Manila Railroad Co. (38 Phil.,
36
768), supplies an instance of the violation of this duty with respect to a passenger
who was getting off of a train. In that case the plaintiff stepped off of a moving train,
while it was slowing down in a station, and at the time when it was too dark for him to
see clearly where he was putting his feet. The employees of the company had
carelessly left watermelons on the platform at the place where the plaintiff alighted,
with the result that his feet slipped and he fell under the car, where his right arm
badly injured. This court held that the railroad company was liable for breach positive
duty (culpa contractual), and the plaintiff was awarded damages in the amount of
P2,500 for the loss of his arm. In the opinion in that case the distinction is clearly
drawn between a liability for negligence arising from breach of contructual duty and
that arising articles 1902 and 1903 of the Civil Code (culpa aquiliana).
The distiction between these two sorts of negligence is important in this jurisdiction,
for the reason that where liability arises from a mere tort (culpa aquiliana), not
involving a breach of positive obligation, an employer, or master, may exculpate
himself, under the last paragraph of article 1903 of the Civil Code, by providing that
he had exercised due degligence to prevent the damage; whereas this defense is
not available if the liability of the master arises from a breach of contrauctual duty
(culpa contractual). In the case bfore us the company pleaded as a special defense
that it had used all the deligence of a good father of a family to prevent the damage
suffered by the plaintiff; and to establish this contention the company introduced
testimony showing that due care had been used in training and instructing the
motorman in charge of this car in his art. But this proof is irrelevant in view of the fact
that the liability involved was derived from a breach of obligation under article 1101
of the Civil Code and related provisions. (Manila Railroad Co. vs. Compana
Transatlantica and Atlantic, Gulf & Pacific Co., 38 Phil., 875, 887; De Guia vs. Manila
Electric Railroad & Light Co., 40 Phil., 706, 710.)
Another practical difference between liability for negligence arising under 1902 of the
Civil Code and liability arising from negligence in the performance of a positive duty,
under article 1101 and related provisions of the Civil Code, is that, in dealing with the
latter form of negligence, the court is given a discretion to mitigate liability according
to the circumstances of the case (art 1103). No such general discretion is given by
the Code in dealing with liability arising under article 1902; although possibly the
same end is reached by courts in dealing with the latter form of liability because of
the latitude of the considerations pertinent to cases arising under this article.
As to the contributory negligence of the plaintiff, we are of the opinion that it should
be treated, as in Rakes vs. Atlantic, Gulf and Pacific Co. (7 Phil., 359), as a
mitigating circumstance under article 1103 of the Civil Code. It is obvious that the
plaintiff's negligence in attempting to board the moving car was not the proximate
cause of the injury. The direct and proximate cause of the injury was the act of
appellant's motorman in putting on the power prematurely. A person boarding a
moving car must be taken to assume the risk of injury from boarding the car under
the conditions open to his view, but he cannot fairly be held to assume the risk that
the motorman, having the situation in view, will increase his peril by accelerating the
speed of the car before he is planted safely on the platform. Again, the situation
before us is one where the negligent act of the company's servant succeeded the
negligent act of the plaintiff, and the negligence of the company must be considered
the proximate cause of the injury. The rule here applicable seems to be analogous
to, if not identical with that which is sometimes referred to as the doctrine of "the last
clear chance." In accordance with this doctrine, the contributory negligence of the
party injured will not defeat the action if it be shown that the defendant might, by the
exercise of reasonable care and prudence, have avoided the consequences of the
negligence of the injured party (20 R. C. L., p. 139; Carr vs. Interurban Ry. Co., 185
Iowa, 872; 171 N. W., 167). The negligence of the plaintiff was, however, contributory
to the accident and must be considered as a mitigating circumstance.
With respect to the effect of this injury upon the plaintiff's earning power, we note
that, although he lost his foot, he is able to use an artificial member without great
inconvenience and his earning capacity has probably not been reduced by more
than 30 per centum. In view of the precedents found in our decisions with respect to
the damages that ought to be awarded for the loss of limb, and more particularly
Rakes vs. Atlantic, Gulf and Pacific Co. (7 Phil., 359); Cangco vs. Manila Railroad
Co. (38 Phil., 768); and Borromeo vs. Manila Electric Railroad and Light Co. (44
Phil., 165), and in view of all the circumstances connected with the case, we are of
the opinion that the plaintiff will be adequately compensated by an award of P2,500.
It being understood, therefore, that the appealed judgment is modified by reducing
the recovery to the sum of P2,500, the judgment, as thus modified, is affirmed. So
ordered, with costs against the appellant.
Malcolm, Villamor, Ostrand, Romualdez and Villa-Real, JJ., concur.
G.R. No. L-17690 June 14, 1922
YU BIAO SONTUA & CO., plaintiff-appellee,
vs.
MIGUEL J. OSSORIO, defendant-appellant.
37
Antonio Sanz and Kincaid, Perkins and Kincaid for appellant.
M. H. de Joya for appellee.
ROMUALDEZ, J.:
On the evening of the 13th of March, 1920, a fire broke out on board the motor
boat Alfonso when this boat was in the Pasig River, city of Manila, ready to weigh
anchor. A short distance from the Alfonso the steamer Y. Sontuawas lying alongside
moored to the wharf of said river.
The fire in the motor boat Alfonso spread to the steamer Y. Sontua, causing
damages to her deck, according to plaintiff, amounting to P67,400.
The plaintiff, which is a regular partnership and the owner of the steamer Y. Sontua,
brought this action to recover from the defendant, the owner and agent of said motor
boat Alfonso, the aforementioned sum as indemnity for the damages alleged by the
plaintiff to have been sustained by him through the negligence of the agents and
employees of the said defendant, which caused the fire in the aforesaid motor
boat Alfonso, wherefrom it spread, and caused said damages to the steamer Y.
Sontua. These damages are specified in the two causes of action set forth in the
complaint, in the first of which are mentioned the appurtenances and parts of the
aforesaid vessel that were destroyed and damaged by the said fire, and for the
repair of which the sum of P40,000 was expended. In the second cause of action it is
alleged that the plaintiff sustained damages to the amount of P27,400 for the
demurrage and delay in the ordinary voyages of the aforesaid vessel Y. Sontua. After
denying generally and specifically the allegations of the complaint, the defendant
alleges, as special defense, that he has taken no part either directly or indirectly in
the acts alleged in the complaint; that if the plaintiff has sustained any damages, they
are not the result of the act said to have been committed by the agents and
employees of the defendant; and are not imputable to the negligence of the
defendant, or any of his agents, employees, or mandatories.
The case having been tried, the court sentenced the defendant to pay the plaintiff the
above-mentioned sum of P67,400, with legal interest thereon from the date of the
filing of the complaint, and the costs.
From the judgment the defendant appeals to this court assigning three errors, to wit:
(a) The finding that the explosion in question was due to the negligence of the
persons in charge of the motor boat Alfonso; (b) the finding that the defendant is
liable for the negligence of his agents and employees; and (c) the awarding of an
excessive sum as damages.
With regard to the first error, the following facts are proven: That during the day and
night of the 12th, and during the day of the 13th of March 1920, there were loaded in
the said motor boat Alfonso 2,000 cases of petroleum and 8,473 cases of gasoline,
of which 5,000 cases of gasoline and 2,000 of petroleum were placed in the hold of
said motor boat, and the balance on deck; that said loading was done without
permission from the customs authorities; that the said cases were loaded by means
of straps supporting 10 or 12 cases at a time; that the said cases of gasoline and
petroleum were placed in the hold about 14 feet from the boiler of the main engine
and about 4 feet from the boiler of the smaller engine; that on the evening of the 13th
of March, 1920, the smaller engine was in operation preparatory to the departure of
the motor boat which, at that time, was getting ready to leave; that the fire in said
motor boat burst out with an explosion followed by a violent expulsion of gasoline
and petroleum; that owing to the proximity of the motor boat to the steamer Y.
Sontua, the magnitude of the fire and the inflammability of the material that served
as fuel, the fire spread to the said steamer Y. Sontua, and so rapidly that it was
impossible for the crew of the Y. Sontua to check its progress,
Expert testimony was also introduced by the plaintiff to the effect that it is but natural
that, after several transhipments of more than 8,000 cases of gasoline and 2,000
cases of petroleum there is bound to be a leakage, on an average of 1 to 4 cases
per hundred, due to the fact that the loading is effected by means of straps
supporting from 10 to 12 cases at a time which, quite frequently, receive violent
bumps resulting in damage to the cans and the consequent leakage of either
gasoline or petroleum, as the case may be.
It was also shown by expert testimony that the gases formed by the volatilization of
the gasoline or petroleum leaking from the cases are apt to accumulate in a
compartment, such as the hold of a ship, without sufficient ventilation causing the
gases to ignite upon coming in contact with a spark or upon the temperature being
sufficiently raised.
Under these circumstances we are constrained to hold that the fire which caused the
damages for which the plaintiff seeks to be indemnified was the inevitable effect of
the explosion and fire which occurred in the motor boat Alfonso; that this explosion
and fire in the said motor boat is, with good ground, imputable to the negligence of
the persons having charge at that time of said motor boat and under whose direction
the loading of the aforesaid cases of petroleum and gasoline had been performed.
The trial court did not, therefore, commit the first error assigned by the appellant.
In the second assignment of error, the appellant contends that the defendant ought
not to be held liable for the negligence of his agents and employees.
38
It is proven that the agents and employees, through whose negligence the explosion
and fire in question occurred, were agents, employees, and mandatories of the
defendant. Where the vessel is one of freight, a public concern or public utility, its
owner or agent is liable for the tortious acts of his agents (arts. 587, 613, and 618,
Code of Commerce; and arts. 1902, 1903, 1908, Civil Code). This principle has been
repeatedly upheld in various decisions of this court.
The doctrines cited by the appellant in support of his theory have reference to the
relations between principal and agent and his agents and employees; for this reason
they cannot be applied in the present case.
In American law, principles similar to those in force in the Philippines and contained
in the Code of Commerce above cited, are prevailing:
Vessel owner's liability in general. The general liability of a vessel owner
extends to losses by fire arising from other than a natural or other excepted
cause, whether occurring on the ship accidentally, or communicated from
another vessel, or from the shore; and the fact that fire produces the motive
power of a boat does not affect the case. Such losses are not within the
exceptions either of act of God, or peril of the sea, except by local custom,
unless proximately caused by one of these events. In jurisdictions where
the civil law obtains, however, it has been held that if property on a
steamboat is destroyed by fire, the owners of the boat are not responsible,
if it was being navigated with proper diligence, although the accident
occurred at night. The common law liability extends even to loss by fires
caused entirely by spontaneous combustion of the cargo, without any
negligence on the part of master or crew. (R.C.L., vol. 24, pp. 1324-1325.)
With regard to the allegation that the obligations enumerated in article 612 of our
Code of Commerce are inherent in the master such inherent duties do not limit to the
latter the civil liability arising from their nonfulfillment, but while the master is
responsible to the ship agent, the ship agent, in turn, is responsible to third persons,
as is clearly provided in article 618 of said Code, in which express mention is made,
is subsections 5 and 7, of the duties enumerated in the said article 612.
Therefore there is also no ground for holding that the second error assigned by the
appellant has been committed.
The third error is concerned with the amount of the damages sustained by the
plaintiff.
It is sufficiently proven that the sum paid by the plaintiff to the Earnshaw Shipyards
for the repairs made to the steamer Y. Sontua, damage to which was caused by the
fire in question, amount to P27,968; that the materials used in said repairs and paid
for by the plaintiff are worth P12,139.30. As to the damages sustained by the plaintiff
on account of the delay of the steamer Y. Sontua, the evidence shows that this
steamer was delayed ten days in the Pasig River, waiting for available space in the
shipyard before it was taken to the said repair-shop; that it was not absolutely
necessary that the repair of the damages caused by the fire should be made in the
shipyard; that said vessel was taken to the shipyard for repair of some parts of it not
damaged by the fire in question.
As the evidence does not sufficiently show the time consumed in repairing the actual
damage caused by the said fire, nor the time employed in making the other repairs,
and as the damage, if any, resulting from the ten days' delay in the Pasig River, is
remote and, therefore, not chargeable to the defendant since said delay is in no way
imputable to him, we think, in view of all of the circumstances of the case and taking
into consideration the importance of all the repairs, whether by fire or otherwise, the
delay of seventy days, according to the evidence of the plaintiff, chargeable to the
defendant, should be reduced to one-half, or thirty-five days at the rate of P410.84 a
day which is the net profit that the aforesaid steamer Y. Sontua failed to realize as a
consequence of said delay. We find that the damages sustained by the plaintiff by
reason of this delay amount to P14,379.40.
The plaintiff further asks that he be awarded, by way of damages, the sum of P4,400
covering maintenance and salary of the officers and crew of his steamer during the
delay aforementioned. We do not feel that he is entitled to this item for the reason
that such expenses have already been taken into account in determining the net
daily profit above referred to. We find that the total sum which the plaintiff is entitled
to recover from the defendant as damages under the facts stated is fifty-four
thousand four hundred eighty-six pesos and seventy centavos (P54,486.70).
The judgment appealed from is hereby modified and the defendant sentenced to pay
the plaintiff the sum of P54,486.70 with costs. So ordered.
G.R. No. L-39587 March 24, 1934
39
ALEKO E. LILIUS, ET AL., plaintiffs-appellants,
vs.
THE MANILA RAILROAD COMPANY, defendant-appellant.
Harvey and O'Brien for plaintiffs-appellants.
Jose C. Abreu for defendant-appellant.
VILLA-REAL, J.:
This case involves two appeals, one by the defendant the Manila Railroad Company,
and the other by the plaintiffs Aleko E. Lilius et al., from the judgment rendered by
the Court of First Instance of Manila, the dispositive part of which reads as follows:
Wherefore, judgment is rendered ordering the defendant company to pay to
the plaintiffs, for the purposes above stated, the total amount of P30,865,
with the costs of the suit. And although the suit brought by the plaintiffs has
the nature of a joint action, it must be understood that of the amount
adjudicated to the said plaintiffs in this judgment, the sum of P10,000
personally belongs to the plaintiff Sonja Maria Lilius; the sum of P5,000, to
the plaintiff Brita Marianne Lilius; the sum of P250, to Dr. Marfori of the
Calauan Hospital, Province of Laguna, and the balance to the plaintiff Aleko
E. Lilius.
In support of its appeal, the appellant the Manila Railroad Company assigns nine
alleged errors committed by the trial court in its said judgment, which will be
discussed in the course of this decision.
As a ground of their appeal, the appellants Aleko E. Lilius et al., in turn, assign two
alleged errors as committed by the same court a quo in its judgment in question,
which will be discussed later.
This case originated from a complaint filed by Aleko E. Lilius et al., praying, under
the facts therein alleged, that the Manila Railroad Company be ordered to pay to
said plaintiffs, by way of indemnity for material and moral damages suffered by them
through the fault and negligence of the said defendant entity's employees, the sum
of P50,000 plus legal interest thereon from the date of the filing of the complaint, with
costs.
The defendant the Manila Railroad Company, answering the complaint, denies each
and every allegation thereof and, by way of special defense, alleges that the plaintiff
Aleko E. Lilius, with the cooperation of his wife and coplaintiff, negligently and
recklessly drove his car, and prays that it be absolved from the complaint.
The following facts have been proven at the trial, some without question and the
others by a preponderance of evidence, to wit:
The plaintiff Aleko E. Lilius has, for many years, been a well-known and reputed
journalist, author and photographer. At the time of the collision in question, he was a
staff correspondent in the Far East of the magazines The American Weekly of New
York and The Sphere of London.
Some of his works have been translated into various languages. He had others in
preparation when the accident occurred. According to him, his writings netted him a
monthly income of P1,500. He utilized the linguistic ability of his wife Sonja Maria
Lilius, who translated his articles and books into English, German, and Swedish.
Furthermore, she acted as his secretary.
At about 7 o'clock on the morning of May 10, 1931, the plaintiff, his wife Sonja Maria
Lilius, and his 4-year old daughter Brita Marianne Lilius, left Manila in
their Studebaker car driven by the said plaintiff Aleko E. Lilius for the
municipality of Pagsanjan, Province of Laguna, on a sight-seeing trip. It was the first
time that he made said trip although he had already been to many places, driving his
own car, in and outside the Philippines. Where the road was clear and unobstructed,
the plaintiff drove at the rate of from 19 to 25 miles an hour. Prior thereto, he had
made the trip as far as Calauan, but never from Calauan to Pagsanjan, via Dayap.
He was entirely unacquainted with the conditions of the road at said points and had
no knowledge of the existence of a railroad crossing at Dayap. Before reaching the
crossing in question, there was nothing to indicate its existence and inasmuch as
there were many houses, shrubs and trees along the road, it was impossible to see
an approaching train. At about seven or eight meters from the crossing, coming from
Calauan, the plaintiff saw an autotruck parked on the left side of the road. Several
people, who seemed to have alighted from the said truck, were walking on the
opposite side. He slowed down to about 12 miles an hour and sounded his horn for
the people to get out of the way. With his attention thus occupied, he did not see the
crossing but he heard two short whistles. Immediately afterwards, he saw a huge
black mass fling itself upon him, which turned out to be locomotive No. 713 of the
defendant company's train coming eastward from Bay to Dayap station. The
locomotive struck the plaintiff's car right in the center. After dragging the said car a
distance of about ten meters, the locomotive threw it upon a siding. The force of the
impact was so great that the plaintiff's wife and daughter were thrown from the car
40
and were picked up from the ground unconscious and seriously hurt. In spite of the
efforts of engineer Andres Basilio, he was unable to stop the locomotive until after it
had gone about seventy meters from the crossing.
On the afternoon of the same day, the plaintiff's entered St. Paul's Hospital in the
City of Manila where they were treated by Dr. Waterous. The plaintiff Aleko E. Lilius
suffered from a fractured nose, a contusion above the left eye and a lacerated
wound on the right leg, in addition to multiple contusions and scratches on various
parts of the body. As a result of the accident, the said plaintiff was highly nervous
and very easily irritated, and for several months he had great difficulty in
concentrating his attention on any matter and could not write articles nor short
stories for the newspapers and magazines to which he was a contributor, thus losing
for some time his only means of livelihood.
The plaintiff Sonja Maria Lilius suffered from fractures of the pelvic bone, the tibia
and fibula of the right leg, below the knee, and received a large lacerated wound on
the forehead. She underwent two surgical operations on the left leg for the purpose
of joining the fractured bones but said operations notwithstanding, the leg in question
still continues deformed. In the opinion of Dr. Waterous, the deformity is permanent
in character and as a result the plaintiff will have some difficulty in walking. The
lacerated wound, which she received on her forehead, has left a disfiguring scar.
The child Brita Marianne Lilius received two lacerated wounds, one on the forehead
and the other on the left side of the face, in addition to fractures of both legs, above
and below the knees. Her condition was serious and, for several days, she was
hovering between life and death. Due to a timely and successful surgical operation,
she survived her wounds. The lacerations received by the child have left deep scars
which will permanently disfigure her face, and because of the fractures of both legs,
although now completely cured, she will be forced to walk with some difficulty and
continuous extreme care in order to keep her balance.
Prior to the accident, there had been no notice nor sign of the existence of the
crossing, nor was there anybody to warn the public of approaching trains. The
flagman or switchman arrived after the collision, coming from the station with a red
flag in one hand and a green one in the other, both of which were wound on their
respective sticks. The said flagman and switchman had many times absented
himself from his post at the crossing upon the arrival of a train. The train left Bay
station a little late and therefore traveled at great speed.
Upon examination of the oral as well as of the documentary evidence which the
parties presented at the trial in support of their respective contentions, and after
taking into consideration all the circumstances of the case, this court is of the opinion
that the accident was due to negligence on the part of the defendant-appellant
company, for not having had on that occasion any semaphore at the crossing at
Dayap, to serve as a warning to passers-by of its existence in order that they might
take the necessary precautions before crossing the railroad; and, on the part of its
employees the flagman and switchman, for not having remained at his post at the
crossing in question to warn passers-by of the approaching train; the stationmaster,
for failure to send the said flagman and switchman to his post on time; and the
engineer, for not having taken the necessary precautions to avoid an accident, in
view of the absence of said flagman and switchman, by slackening his speed and
continuously ringing the bell and blowing the whistle before arriving at the crossing.
Although it is probable that the defendant-appellant entity employed the diligence of
a good father of a family in selecting its aforesaid employees, however, it did not
employ such diligence in supervising their work and the discharge of their duties
because, otherwise, it would have had a semaphore or sign at the crossing and, on
previous occasions as well as on the night in question, the flagman and switchman
would have always been at his post at the crossing upon the arrival of a train. The
diligence of a good father of a family, which the law requires in order to avoid
damage, is not confined to the careful and prudent selection of subordinates or
employees but includes inspection of their work and supervision of the discharge of
their duties.
However, in order that a victim of an accident may recover indemnity for damages
from the person liable therefor, it is not enough that the latter has been guilty of
negligence, but it is also necessary that the said victim has not, through his own
negligence, contributed to the accident, inasmuch as nobody is a guarantor of his
neighbor's personal safety and property, but everybody should look after them,
employing the care and diligence that a good father of a family should apply to his
own person, to the members of his family and to his property, in order to avoid any
damage. It appears that the herein plaintiff-appellant Aleko E. Lilius took all
precautions which his skill and the presence of his wife and child suggested to him in
order that his pleasure trip might be enjoyable and have a happy ending, driving his
car at a speed which prudence demanded according to the circumstances and
conditions of the road, slackening his speed in the face of an obstacle and blowing
his horn upon seeing persons on the road, in order to warn them of his approach and
request them to get out of the way, as he did when he came upon the truck parked
on the left hand side of the road seven or eight meters from the place where the
accident occurred, and upon the persons who appeared to have alighted from the
said truck. If he failed to stop, look and listen before going over the crossing, in spite
of the fact that he was driving at 12 miles per hour after having been free from
obstacles, it was because, his attention having been occupied in attempting to go
ahead, he did not see the crossing in question, nor anything, nor anybody indicating
its existence, as he knew nothing about it beforehand. The first and only warning,
41
which he received of the impending danger, was two short blows from the whistle of
the locomotive immediately preceding the collision and when the accident had
already become inevitable.
In view of the foregoing considerations, this court is of the opinion that the defendant
the Manila Railroad Company alone is liable for the accident by reason of its own
negligence and that of its employees, for not having employed the diligence of a
good father of a family in the supervision of the said employees in the discharge of
their duties.
The next question to be decided refers to the sums of money fixed by the court a
quo as indemnities for damages which the defendant company should pay to the
plaintiffs-appellants.
With respect to the plaintiff-appellant Aleko E. Lilius, although this court believes his
claim of a net income of P1,500 a month to be somewhat exaggerated, however, the
sum of P5,000, adjudicated to him by the trial court as indemnity for damages, is
reasonable.
As to the sum of P10,635 which the court awards to the plaintiffs by way of indemnity
for damages, the different items thereof representing doctor's fees, hospital and
nursing services, loss of personal effects and torn clothing, have duly been proven at
the trial and the sum in question is not excessive, taking into consideration the
circumstances in which the said expenses have been incurred.
Taking into consideration the fact that the plaintiff Sonja Maria Lilius, wife of the
plaintiff Aleko E. Lilius is in the language of the court, which saw her at the trial
"young and beautiful and the big scar, which she has on her forehead caused by the
lacerated wound received by her from the accident, disfigures her face and that the
fracture of her left leg has caused a permanent deformity which renders it very
difficult for her to walk", and taking into further consideration her social standing,
neither is the sum of P10,000, adjudicated to her by the said trial court by way of
indemnity for patrimonial and moral damages, excessive. In the case
of Gutierrez vs. Gutierrez(56 Phil., 177), the right leg of the plaintiff Narciso Gutierrez
was fractured as a result of a collision between the autobus in which he was riding
and the defendant's car, which fractured required medical attendance for a
considerable period of time. On the day of the trial the fracture had not yet
completely healed but it might cause him permanent lameness. The trial court
sentenced the defendants to indemnify him in the sum of P10,000 which this court
reduced to P5,000, in spite of the fact that the said plaintiff therein was neither young
nor good-looking, nor had he suffered any facial deformity, nor did he have the social
standing that the herein plaintiff-appellant Sonja Maria Lilius enjoys.1vvphi1.ne+
As to the indemnity of P5,000 in favor of the child Brita Marianne Lilius, daughter of
Aleko E. Lilius and Sonja Maria Lilius, neither is the same excessive, taking into
consideration the fact that the lacerations received by her have left deep scars that
permanently disfigure her face and that the fractures of both her legs permanently
render it difficult for her to walk freely, continuous extreme care being necessary in
order to keep her balance in addition to the fact that all of this unfavorably and to a
great extent affect her matrimonial future.
With respect to the plaintiffs' appeal, the first question to be decided is that raised by
the plaintiff Aleko E. Lilius relative to the insufficiency of the sum of P5,000 which the
trial court adjudicated to him by way of indemnity for damages consisting in the loss
of his income as journalist and author as a result of his illness. This question has
impliedly been decided in the negative when the defendant-appellant entity's petition
for the reduction of said indemnity was denied, declaring it to be reasonable.
As to the amount of P10,000 claimed by the plaintiff Aleko E. Lilius as damages for
the loss of his wife's services in his business as journalist and author, which services
consisted in going over his writings, translating them into English, German and
Swedish, and acting as his secretary, in addition to the fact that such services
formed part of the work whereby he realized a net monthly income of P1,500, there
is no sufficient evidence of the true value of said services nor to the effect that he
needed them during her illness and had to employ a translator to act in her stead.
The plaintiff Aleko E. Lilius also seeks to recover the sum of P2,500 for the loss of
what is called Anglo-Saxon common law "consortium" of his wife, that is, "her
services, society and conjugal companionship", as a result of personal injuries which
she had received from the accident now under consideration.
In the case of Goitia vs. Campos Rueda (35 Phil., 252, 255, 256), this court,
interpreting the provisions of the Civil Marriage Law of 1870, in force in these Islands
with reference to the mutual rights and obligations of the spouses, contained in
articles 44-48 thereof, said as follows:
The above quoted provisions of the Law of Civil Marriage and the Civil
Code fix the duties and obligations of the spouses. The spouses must be
faithful to, assist, and support each other. The husband must live with and
protect his wife. The wife must obey and live with her husband and follow
him when he changes his domicile or residence, except when he removes
to a foreign country. . . .
Therefore, under the law and the doctrine of this court, one of the husband's rights is
to count on his wife's assistance. This assistance comprises the management of the
42
home and the performance of household duties, including the care and education of The plaintiffs-appellants are entitled to interest of 6 percent per annum on the
the children and attention to the husband upon whom primarily devolves the duty of amount of the indemnities adjudicated to them, from the date of the appealed
supporting the family of which he is the head. When the wife's mission was judgment until this judgment becomes final, in accordance with the provisions of
circumscribed to the home, it was not difficult to assume, by virtue of the marriage section 510 of Act No. 190.
alone, that she performed all the said tasks and her physical incapacity always
redounded to the husband's prejudice inasmuch as it deprived him of her assistance. Wherefore, not finding any error in the judgment appealed from, it is hereby
However, nowadays when women, in their desire to be more useful to society and to affirmed in toto, with the sole modification that interest of 6 per cent per annum from
the nation, are demanding greater civil rights and are aspiring to become man's the date of the appealed judgment until this judgment becomes final will be added to
equal in all the activities of life, commercial and industrial, professional and political, the indemnities granted, with the costs of both instances against the appellant. So
many of them spending their time outside the home, engaged in their businesses, ordered.
industry, profession and within a short time, in politics, and entrusting the care of
their home to a housekeeper, and their children, if not to a nursemaid, to public or
private institutions which take charge of young children while their mothers are at
work, marriage has ceased to create the presumption that a woman complies with
the duties to her husband and children, which the law imposes upon her, and he who
seeks to collect indemnity for damages resulting from deprivation of her domestic EN BANC
services must prove such services. In the case under consideration, apart from the
services of his wife Sonja Maria Lilius as translator and secretary, the value of which
G.R. No. L-9331 July 31, 1957
has not been proven, the plaintiff Aleko E. Lilius has not presented any evidence
showing the existence of domestic services and their nature, rendered by her prior to
the accident, in order that it may serve as a basis in estimating their value. JOSE A. ORTALIZ, plaintiff-appellant,
vs.
CORADO ECHARRI, defendant-appelee.
Furthermore, inasmuch as a wife's domestic assistance and conjugal companionship
are purely personal and voluntary acts which neither of the spouses may be
compelled to render (Arroyo vs. Vazquez de Arroyo, 42 Phil., 54), it is necessary for Parreno and Tonogbanua for appellant.
the party claiming indemnity for the loss of such services to prove that the person Hilado and Hilado for appellees.
obliged to render them had done so before he was injured and that he would be
willing to continue rendering them had he not been prevented from so doing. ENDENCIA, J.:

In view of the foregoing considerations this court is of the opinion and so holds: (1)
That a railroad company which has not installed a semaphore at a crossing an does
not see to it that its flagman and switchman faithfully complies with his duty of
remaining at the crossing when a train arrives, is guilty of negligence and is civilly
liable for damages suffered by a motorist and his family who cross its line without
negligence on their part; (2) that an indemnity of P10,000 for a permanent deformity
on the face and on the left leg, suffered by a young and beautiful society woman, is
not excessive; (3) that an indemnity of P5,000 for a permanent deformity on the face
and legs of a four-year old girl belonging to a well-to-do family, is not excessive; and
(4) that in order that a husband may recover damages for deprivation of his wife's
assistance during her illness from an accident, it is necessary for him to prove the
existence of such assistance and his wife's willingness to continue rendering it had
she not been prevented from so doing by her illness.
Plaintiff-appellant seeks the reversal of the order of the Court of First Instance of
Negros Occidental dismissing the case on the ground that the complaint does not
state a cause of action.
On February 19, 1953, plaintiff filed in the court below a complaint wherein, after
stating the legal personalities of the parties, he averred the following:
2. That the plaintiff is the lawful father of the child, Winston Ortaliz, had in
legitimate wedlock with Elena Lucasan;
3. That on or about December 18, 1953, at the corner of Washington and
Justicia Streets, Bacolod City, Philippines, the Studebaker Sedan Car with
Plate No. 35-1138 of the defendant struck the plaintiff's son, Winston
43
Ortaliz, causing upon him physical injuries as a result of which he was
taken to the Occidental Negros Provincial Hospital as evidenced by the
medical certificate herewith attached and marked as Annex "A" of this
complaint;
4. That the said Studebaker Sedan Car with Plate No. 35-1138 was at the
time of the accident, driven and controlled by Segundino Estanda, a driver
under the employ of the defendant, without due care and diligence and with
negligence and recklessness and violation of traffic rules and regulations;
5. That an information was filed in the Municipal Court of the City of
Bacolod which was docketed as Criminal Case No. 2607 against the said
Segundino Estanda for the crime of Slight Physical Inuries Through
Reckless Imprudence, a copy of said information is hereto attached marked
as Annex "B" and made an integral part of this complaint;
6. That the said Segundino Estanda pleaded guilty to the crime charge in
the Information and he was finally sentenced to suffer the penalty of five (5)
days of Arresto Menor and to pay the costs in a Decision rendered in said
case, copy of which Decision is hereto attached marked as Annex "C" and
made an integral part of this complaint;
7. That the said Decision, Annex "C" has long become final and said
Segundino Estanda has already served the penalty metted to him by virtue
thereof; .
8. That the plaintiff has suffered damages in the form of expenses paid for
the hospitalization, medicines, physicians' fees and incidental expense of
his son, Winston Ortaliz, in the amount of P446.58;
9. That the plaintiff, by reason of the accident met by his said son, Winston
Ortaliz, as above-stated, through the fault, negligence and recklessness of
Segundino Estanda for whose acts the defendant is responsible because
he was at the time employed by him (defendant) as his driver, has also
suffered, because of the mental anguish, fright, serious anxiety, wounded
feelings and moral shock, moral damages in the amount of TWO
THOUSAND PESOS (P2,000), Philippine Currency;
10. That the boy, Winston Ortaliz, was strong, robust and happy before the
accident that caused on him physical Injuries which necessitated his
hospitalization and medical attention, and was not suffering nor had he ever
suffered from any illness;
11. That demands have been made on the defendant to pay the plaintiff the
sum of P2,446.55 for actual, consequential and moral damages, but the
defendants refused and still refuses to pay the same and that by reason of
the refusal of the defendant, the plaintiff was forced to secure the services
of an attorney paying the latter the sum of P500.
WHEREFORE, it is respectfully prayed that a decision be rendered;
1. Sentencing the defendant to pay the plaintiff the sum of P2,446.55 for the
actual, consequential and moral damages plus an additional sum of P500
for attorney's fees;
2. To pay the costs of this suit, and
3. Plaintiff be granted any other remedy that is just and equitable and
proper in law.
On March 18, 1953, the defendant-appellee filed a motion to dismiss wherein, after
admitting the ownership of the Studebaker Sedan car with plate No. 35-1138, he
alleged the following:
(a) That the case at bar is one for recovery of damages arising from the
crime of Slight Physical Injuries as borne out by the allegations of the
complaint itself.
(b) That defendant is being sued in his capacity as the employer of the
perpetrator of the said crime, Segundino Estanda, and, as deducible from
the allegations of the complaint, for defendant's supposed subsidiary civil
liability arising therefrom under the Revised Penal Code.
(d) That the complaint does not allege that defendant was nor is engaged in
any business or industry in conjunction with which he has at any time used
the said car, much less on the occasion of the alleged accident, nor the
defendant had at any time put out the said car for hire.
(e) That the obligation or liability of defendant, if any, for the damages
alleged in the complaint, being an obligation arising from a criminal offense,
44
 is governed by Article 1161 of the Civil Code, which, in turn, makes the
penal laws applicable thereto.
(f) That, under Article 103 of the Revised Penal Code, it is essential, in
order for an employer to be liable subsidiarily for felonies committed by his
employee, that the former be engaged in some kind of industry, and that the
employer had committed the crime in the discharge of his duties in
connection with such industry.
(g) That, therefore, defendant cannot be held subsidiarily liable for the crime
committed by his driver as alleged in plaintiff's complaint.
PREMISES CONSIDERED, defendant respectfully prays this Hon. Court to
dismiss the complaint, the same having failed to state a cause of action,
with costs.
Thereafter the parties submitted their respective memoranda on whether the
complaint failed to state a cause of action and the Court, after taking into
consideration the arguments advanced by the parties, dismissed the complaint.
Plaintiff now contends that under paragraph 2 of Article 2884 of the Civil Code and
paragraph 1 and 5 of Article 2180, a sufficient cause of action has been clearly
alleged in the disputed complaint and therefore the same should not have been
dismissed. Article 2180 in part provides:
ART. 2180. The obligation imposed by article 2176 is demandable not only
for one's own acts or omission but also for those of persons for whom one
is responsible.
Employers shall be liable for the damages caused by their employees and
household helpers acting within the scope of their assigned tasks, even
though the former are not engaged in any business or industry.
and Article 2184 in its last paragraph provides:
If the owner was not in the motor vehicle, the provisions of Article 2180 are
applicable.
Having in view the aforequoted provisions of law and those of Article 2176 to the
effect that "Whoever by act or omission causes damage to another, there being fault
or negligence, is obliged to pay for the damage done", there seems to be good
reason to support plaintiff's contention that the complaint in question states sufficient
cause of action. Defendant-appellee, however, claims that there is no allegation in
the complaint that "the defendant was engaged in some kind of industry and that the
employee had committed the crime in the discharge of his duties in connection with
such industry," hence the defendant cannot be held subsidiarily liable for the crime
committed by his driver and therefore the complaint failed to state facts sufficient to
constitute a cause of action. But paragraph 5 of Article 2180 refutes this contention
for it clearly provides that "Employers shall be liable for the damages caused by their
employees acting within the scope of their assigned tasks, even though the former
are not engaged in any business or industry."
Defendant-appellee also contends that when the judgment in Criminal Case No.
2607 of the Municipal Court of Bacolod was rendered against the driver Segundino
Estanda, plaintiff did not reserve the civil action and thus he lost his right thereto and
consequently the present action against the defendant-appellee would not lie. This
contention, however, is untenable, for Article 33 of the Civil Code clearly provides:
ART. 33. In cases of physical injuries, a civil action for damages, entirely
separate and distinct from the criminal action, may be brought by the
injured party. Such civil action shall proceed independently of the criminal
prosecution, and shall require only a preponderance of evidence.
WHEREFORE, the order of dismissal entered by the lower court is hereby revoked
and the case remanded to said court for further proceedings. Without costs.
EN BANC
G.R. No. 46237 September 27, 1939
ROSALIO MARQUEZ, ET AL., plaintiffs-appellees,
vs.
BERNARDO CASTILLO, defendant-appellant.
A.L. Katigbak for appellant.
Teodorico Ona for appellee.
DIAZ, J.:
45
The plaintiffs and appellees surnamed Marquez sought to collect from the defendant
and appellant, in the Court of First Instance of Tayabas, an indemnity in the sum of
P4,900 for the death of Fernanda Marquez on whom they claim to be dependent for
support, which death was caused by the reckless imprudence of Mariano Capulong,
the defendant's chauffeur who ran over her on April 30, 1937, in the barrio of
Lusacan of the municipality of Tiaong, Province of Tayabas. The plaintiff and
appellee Maria Chomacera, in turn, sought to collect from the same defendant
another indemnity in the sum of P100 for certain injuries received by her from the
same cause and under the same circumstances which resulted in the death of said
Fernanda Marquez.
The defendant defended himself by alleging that the death of Fernanda Marquez
was due to the exclusive fault and negligence of the chauffeur Mariano Capulong,
and that in the selection and employment of the latter, as such, in his service, he
exercised the due diligence of a good father of a family, so that he should not be
made to answer for the damages caused by the imprudence of said employee. To
this defense of the defendant, who at the same time alleged in his answer a
counterclaim seeking an indemnity in the sum of P300 for the annoyance caused
him by the plaintiffs, by compelling him to defend himself in the case, thereby
incurring expenses in order to secure the services of an attorney, the plaintiffs and
appellees filed a reply contending that it is of no avail to the defendant to have
exercised the due diligence of a good father of a family in the selection and
employment of the chauffeur Mariano Capulong claiming that the latter was duly
licensed as such chauffeur, because, under the provisions of article 103 of the
Revised Penal Code, he is, at any rate, bound subsidiarily to answer for the civil
liability of said servant, subordinate, employee or chauffeur, for the reason that when
the latter caused the death of the deceased Marquez, he was in the employ of the
defendant.
During the trial, the parties filed a stipulation of facts which appears inserted in the
appealed decision, as follows:
That Mariano Capulong is the same accused convicted and sentenced in
criminal case No. 7103 of this court, as evidenced by the judgment dated
May 6, 1937.
xxx xxx xxx
That said Mariano Capulong is insolvent, according to the investigations
conducted by us to this date.
1. That the defendant Bernardo Castillo has exercised due diligence as a
good father of a family in selecting the chauffeur Mariano Capulong, and
the plaintiffs admit that said chauffeur Mariano Capulong possesses an
automobile driver's license which, for purposes of identification, we request
to be marked as Exhibit A, as a conclusive evidence of his having exercised
due diligence.
2. That the defendant Bernardo Castillo is not engaged in any kind of
business or industry on or about April 30, 1937, the date of the accident.
3. That the defendant Bernardo Castillo was not riding in the car at the time
of the accident, and he did not know that his car was taken by the chauffeur
Mariano Capulong.
4. That, by reason of this complaint, the defendant has suffered damages in
the sum of P300 in order to prepare his defense.
That Fernanda Marquez, that is, the offended party in criminal case No.
7103, was earning at the rate of P1 a day on the date of her death; and that
said Fernanda Marquez was only 50 years old when she died.
That the co-plaintiff Maria Chomacera was earning at the rate of P1.20 a
day at the time she received the injuries mentioned in the above-stated
affidavit of Mariano Capulong, and that she incurred for her treatment
expenses amounting to P100, as alleged in the complaint, while Fernanda
Marquez spent for her burial and funeral the sum of P300, as alleged in the
complaint.
It should be noted that in said stipulation, there is a provision appearing in paragraph
3 thereof, which reads as follows:
That the defendant Bernardo Castillo was not riding in the car at the time of
the accident, and he did not know that his car was taken by the chauffeur
Mariano Capulong.
This fact decides the question because it clearly shows that the accident did not
occur in the course of the performance of the duties or service for which said
chauffeur Mariano Capulong had been hired. The defendant did not hire him to do as
he pleased, using the defendant's car as if it were his own. His duties and service
were confined to driving his master's car as the latter ordered him, and the accident
did not take place under said circumstances. The subsidiary civil liability of the
46
master, according to the provisions of article 103 of said Revised Penal Code, arises
and takes place only when the servant, subordinate or employee commits a
punishable criminal act while in the actual performance of his ordinary duties and
service, and he is insolvent thereby rendering him incapable of satisfying by himself
his own civil liability.
The general rule regarding the obligation to repair the damage done, besides the
one established in article 103 of the Revised Penal Code, is that he, who by an act
or omission causes the damage through his fault or negligence, is the one called
upon to repair the same (art. 1902, Civil Code). This rule, which extends only to
cases mentioned in articles 1903 to 1910 of said Code, is in no way applicable to the
appellant, all the more so because, as the lower court makes clear in its decision,
neither was he in his car at the time of the accident for which Mariano Capulong was
sentenced to pay an indemnity of P500 to the heirs of the deceased Marquez, nor
was he negligent in the selection of his chauffeur, since he hired in his service
precisely one who is duly licensed to drive a car.
For the foregoing reasons, the appealed judgment is reversed, with the costs de
oficio.
So ordered.
EN BANC
G.R. No. L-15992 May 31, 1961
PEDRO TY BELIZAR, plaintiff-appellant,
vs.
FLORENCIO BRAZAS, FELIX HILARIO, LUCIO BALDONILO, FELIX BALATO,
TEODORO BALATO and TODESCO CEBUANO, defendants-appellees.
Lope C. Quimbo for plaintiff-appellant.
Artemio A. Docena and Jacinto R. Bohol for defendants-appellees.
LABRADOR, J.:
This is an appeal from an order of the Court of First Instance of Samar dated June 6,
1959, dismissing the complaint filed before it.
On April 21, 1959, Pedro Ty Belizar filed a complaint against Florencio Brazas, Felix
Hilario, Lucio Baldonilo alleging that he is operating the Samar Express Transit; that
defendants are being used in their capacity as employees (of the Bureau of Public
Highways); that due to their gross negligence in not providing the ferry boat with
safety devices, one of his auto-trucks, while being transported from one bank of the
Taft River, Taft, Samar, to the other, fell into the river and was submerged in water for
over 30 hours; that as a consequence thereof, he suffered actual and moral
damages and had to hire counsel to prosecute this action. He therefore prays for
payment to him by the defendants of said damages and attorney's fees.
On May 14, 1959, defendant Felix Hilario, on his own behalf, filed his answer,
denying the material allegations of the complaint and alleging as special defense that
he is working only under the instructions of his superiors. On May 19, 1959,
defendants Lucio Baldonilo, Felix Balato, Teodoro Balato and Todesco Cebuano filed
a motion to dismiss on the grounds that the complaint states no cause of action and
that they are not the real parties in interest. After an opposition thereto was filed by
the plaintiff, the remaining defendant Florencio Brazas filed another motion to
dismiss on May 20, 1959, claiming that the plaintiff has no cause of action against
the defendants because they are being sued in their official capacities and therefore
the claim for damages should be directed against the State.
Acting upon the motions to dismiss, the lower court on June 6, 1959, dismissed the
complaint, and against this order, the plaintiff has prosecuted this appeal directly to
this Court.
The only issue before this Court is the correctness of the order appealed from.
It is apparent from the records that although the Government is the one operating the
ferry boat, from which plaintiffs truck fell, because of the absence of safety devices,
the plaintiff has elected to sue the defendant employees personally for their negligent
acts under the doctrine of quasi-delict. Article 2180 of the Civil Code provides for the
liability of an employer for the tortuous acts of his employees. This, however, does
not exempt the employees from personal liability, especially if there are no persons
having direct supervision over them, or if there is proof of the existence of negligence
on their part. So the injured party can bring an action directly against the author of
the negligent act or omission, although he may sue as joint defendants such author
and the person responsible for him (7 Salvat 80, quoted in V Tolentino,
Commentaries and Jurisprudence on the Civil Code of the Philippines, 1959 edition,
p. 520). The provisions of Article 1733 of the Civil Code and the decision in the case
47
of the Manila Railroad Co. vs. La Compania Trasatlantica and Atlantic Gulf & Pacific
Co., 38 Phil. 875, cited in the order appealed from refer to an order based upon a
contract of transportation. The present action being based on torts, said authorities
are not applicable thereto.
The fact that the duties and positions of the defendants are indicated does not mean
that they are being sued in their official capacities, especially as the present action is
not one against the Government.
In view of the foregoing we find that the dismissal of complaint is not justified, and for
this reason, we hereby set aside the order of dismissal appealed from and remanded
the case to the court of origin for further proceedings. With costs against the
defendants-appellees.
FIRST DIVISION
G.R. No. L-26407 March 31, 1978
EUSEBIO MENDOZA, plaintiff-appellant,
vs.
LA MALLORCA BUS COMPANY, defendant-appellee.
Alberto S. Plantilla for appellant.
Geminiano F. Yabut & Rafael Monterey for appellee.
GUERRERO, J.:
This is an appeal from the Decision of the Court of First Instance of Nueva Ecija in
Civil Case No. 2626 entitled"Eusebio Mendoza, Plaintiff, v. La Mallorca Bus
Company, Defendant," raised to the Court of Appeals but certified to Us by said
court 1 in its Resolution dated July 26, 1966 as only questions of law were raised
therein.
The facts are stated in the Resolution of the appellate court:
On April 3, 1950, at Plaridel, Bulacan, a collision occurred
involving a freight truck of the plaintiff and a bus of the defendant.
A criminal case for damage to property thru reckless imprudence
was brought against defendant's driver, Claudio Arceo, (Criminal
Case No. 1230, CFI-Bulacan). resulting in the conviction of said
driver, which conviction was affirmed by this Court in CA-G.R. No.
11602-R. in the said criminal case, the plaintiff made express
reservation for the filing of a separate civil action. In affirming the
judgment of conviction imposed upon the accused by the lower
court, this Court modified the fine imposed, with the observation
that the freight truck of the plaintiff therein involved and damaged
was worth only P5,000.00 and not P7,000.00 as found by the trial
court.
On May 8, 1956, plaintiff filed a separate civil action for damages
against the herein defendant, based on quasi-delict under the Civil
Code, which separate civil action (Case No. 2137) was ordered
dismissed by the trial court upon a finding that plaintiff's action,
instituted exactly six years, one month and five days from the date
of the accident (which occurred on April 3, 1950) had already
prescribed, which order became final without plaintiff having
appealed therefrom.
Subsequently, or on August 26, 1957, the plaintiff instituted the
present action, based on the alleged subsidiary liability of the
defendant company under the Revised Penal Code. A motion for
pre hearing under Rule 8, Sec. 5 of the Rules of Court was filed in
the lower Court in consequence of which the lower court, by order
dated Dec. 3, 1958, ordered the dismissal of the case. The order
of Jan. 20, 1959 denied the motion for reconsideration.
From the order of the lower court dated December 3, 1958
dismissing the instant action on the ground that the dismissal of
Civil Case No. 2137 was a bar to the present action, the plaintiff
has appealed, alleging that the following errors were committed by
the lower court:
1. In holding that the dismissal of Civil Case No. 2137 operated as
a bar to the filing of the present action; and
2. In dismissing the complaint.
48
We agree with the plaintiff-appellant. The lower court committed a reversible error in
declaring that the dismissed of Civil Case No. 2137 operated as a bar to the filing of
the present action.
It is well-settled in our jurisprudence that the essential requisites for the existence
of res judicata are: (1) the former judgment must be final; (2) it must have been
rendered by a court having jurisdiction on the merits; (3) it must be a judgment on
the merits; and (4) there must be, between the first and second actions: (a) identity
of parties; (b) identity of subject matter, and (c) identity of cause of action. 2
A careful study of the case at bar presents a dispute as to only one of the above
elements: Whether or not, as between Civil Case No. 2137 and the present action,
there is Identity of causes of action.
We hold that, the two actions, namely, the civil action based on quasi-delict (Civil
Case No. 2137) and the civil action based on c liability (Civil Case No. 2626), are two
separate and independent actions based on distinct causes of action. 3
The test of identity of causes of action is stated in tills wise: It lies not in the form of
an action but on whether the same evidence would support and establish the former
and present causes of action. 4
Civil Case No. 2137 was an action for damages based on culpa aquiliana under
Articles 2176 to 2194 of the New Civil Code for which the defendant-appellee, as
employer, was to be made primarily and directly liable for reason of his own
negligence, either in the selection or supervision of his driver; 5 the present action
stems from the conviction by final judgement of defendant-appellee's driver in the
previous criminal case filed against said driver for damage to property through
reckless imprudence (Crim. Case No. 1230), damages for which defendant-appellee,
as employer, is made subsidiarily liable under Art. 103 of the Revised Penal Code.
Applying the above-stated test, it is evident that res judicata cannot be a defense
against the filing of the present action by petitioner. Defendant-appellee could thwart
an adverse decision in Civil Case No. 2137 by proving his due diligence in the
selection of its employees, but this same evidence will fail in the present action for
his liability is inseparable from that of his driver once the latter is finally convicted. 6
In the case of M.D. Transit & Taxi Co., Inc. v. Court of Appeals (22 SCRA 559), this
Court declared the same principle in simpler terms:
The importance of this issue is due to the fact that appellant's
alleged diligence in the selection of its employees and in
exercising supervision over them would be a good defense should
the action be bard upon a quasi- delict, but not ff predicated upon
a liability springing from a crime.
The question presented before Us has already been resolved in the case of Jocson
v. Glorioso, 7 where the issue under consideration is "whether the previous dismissal
of an action based on culpa aquiliana precludes the application of the plain and
explicit command of Art. 103 of the Revised Penal Code." There, this Court ruled in
the negative having adopted this Court's decision in a previous case, Diana v.
Batangas Trans, Co. 8 where it was held:
Considering the distinguishing characteristics of the two cases,
which involve two different remedies, it can hardly be said that
there is Identity of reliefs in both actions as to make the present
case fall under the operation of Rule 8, Section I (d) of the Rules of
Court. In other words, it is a mistake to say that the present action
should be dismissed because of the pendency of another action
between the same parties involving the same cause. Evidently,
both cases involve different causes of action. In fact. when the
Court of Appeals dismissed the action based on culpa aquiliana
(Civil Case No. 8022), this distinction was stressed. It was there
said that the negligent act committed by defendant's employee is
not a quasi crime, for such negligence is punished by law. What
plaintiffs should have done was to institute an action under Art.
103 of the Revised Penal Code (CA-G.R. No. 3632-R). And this is
what plaintiffs have done. To deprive them now of this remedy,
after the conviction of defendant's employee, would be to deprive
them altogether of the indemnity to which they are entitled by law
and by a court decision, which injustice it is our duty to prevent.
This Court then concluded:
On the same principle then, the previous dismissal of the action
based on culpa aquiliana could not be a bar to the enforcement of
the subsidiary liability required by Art. 103 of the Revised Penal
Code.
What clearly emerges then is the controlling force of the principle
that once there is a conviction for a felony, final in character, the
employer according to the plain and explicit command of Article
49
 103 of the Revised Penal Code, is subsidiarily liable, if it be shown
that the commission thereof was in the discharge of the duties of
such employee. 9
WHEREFORE, judgment is hereby entered setting aside the orders of the lower
court dated December 3, 1958 and January 20, 1959 respectively dismissing the
present action and denying plaintiff-appellant's motion for reconsideration. Let the
case be remanded below for further proceedings.
SO ORDERED.
EN BANC
G.R. No. L-14409 October 31, 1961
AGAPITO FUELLAS, petitioner,
vs.
ELPIDIO CADANO, ET AL., respondents.
Ambrosio Padilla, Feliciano C. Tumale and Roberto R. Reverente for petitioner.
Valerio V. Rovira for respondents.
PAREDES, J.:
For serious physical injuries sustained by Pepito Cadano, son of plaintiff-appellee
Elpidio Cadano, two separate actions were instituted, Civil Case No. 583, filed on
October 1, 1954, for damages against Agapito Fuellas, father of the minor Rico
Fuellas, who caused the injuries, and Criminal Case No. 1765, against Rico Fuellas,
filed on November 11, 1954, for serious physical injuries. They were tried jointly. On
May 18, 1956, a judgment of conviction in the criminal case was rendered, finding
Rico Fuellas guilty of the offense charged. No pronouncement as to his civil liability
was made, the trial judge having ruled that the same "shall be determined in Civil
Case No. 583 of this Court." On May 25, 1956, the same court, rendered judgment in
the civil case making defendant therein, now appellant Agapito Fuellas, liable under
Art. 2180 of the new Civil Code for the following damages:
For medicine, etc. P1,000.00
For moral damages 6,000.00
As exemplary damages 2,000.00
As attorney's fees 600.00
Total P9,600.00
with 6% annual interest thereon until paid. The Court of Appeals modified the
judgment by reducing the moral damages to P3,000.00. An appeal was taken to this
tribunal solely on questions of law.
Pepito Cadano and Rico Fuellas, son of defendant-appellant Agapito Fuellas, were
both 13 years old, on September 16, 1954. They were classmates at St. Mary's High
School, Dansalan City. In the afternoon of September 16, 1954, while Pepito was
studying his lessons in the classroom, Rico took the pencil of one Ernesto Cabanok
and surreptitiously placed it inside the pocket of Pepito. When Ernesto asked Rico to
return the pencil, it was Pepito who returned the same, an act which angered Rico,
who held the neck of Pepito and pushed him to the floor. Villamira, a teacher,
separated Rico and Pepito and told them to go home. Rico went ahead, with Pepito
following. When Pepito had just gone down of the schoolhouse, he was met by Rico,
still in an angry mood. Angelito Aba, a classmate, told the two to shake hands. Pepito
extended his hand to Rico. Instead of accepting the proffer to shake hands, Rico
held Pepito by the neck and with his leg, placed Pepito out of balance and pushed
him to the ground. Pepito fell on his right side with his right arm under his body,
whereupon, Rico rode on his left side. While Rico was in such position, Pepito
suddenly cried out "My arm is broken." Rico then got up and went away. Pepito was
helped by others to go home. That same evening Pepito was brought to the Lanao
General Hospital for treatment (Exh. 4). An X-Ray taken showed that there was a
complete fracture of the radius and ulna of the right forearm which necessitated
plaster casting (Exhs. A, B and D). On November 20, 1954, more than a month after
Pepito's release from the hospital, the plaster cast was removed. And up to the last
day of hearing of the case, the right forearm of Pepito was seen to be shorter than
the left forearm, still in bandage and could not be fully used.
50
It is contended that in the decision of the Court of Appeals, the petitioner-appellant
was ordered to pay damages for the deliberate injury caused by his son; that the
said court held the petitioner liable pursuant to par. 2 of Art. 2180 of the Civil Code, in
connection with Art. 2176 of the same Code; that according to the last article, the act
of the minor must be one wherein "fault or negligence" is present; and that there
being no fault or negligence on the part of petitioner-appellant's minor son, but
deliberate intent, the above mentioned articles are not applicable, for the existence
of deliberate intent in the commission of an act negatives the presence of fault or
negligence in its commission. Appellant, therefore, submits that the appellate Court
erred in holding him liable for damages for the deliberate criminal act of his minor
son.
The above-mentioned provisions of the Civil Code states:
Whoever by act or omission causes damage to another, there being fault or
negligence is obliged to pay for the damage done. Such fault or negligence,
if there is no pre-existing contractual relation between the parties is called
a quasi-delict and is governed by the provisions of this chapter. (Article
2176)
The obligations imposed by article 2176 is demandable not only for one's
own acts or omissions, but also for those of persons for whom one is
responsible.
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.
xxx xxx xxx (Article 2180).
In the case of Araneta vs. Arreglado, G.R. No. L-11394, prom. September 9, 1958,
Benjamin Araneta was talking with other students of the Ateneo de Manila, seated
atop a low ruined wall. Dario Arreglado, a former student of the Ateneo, chanced to
pass by. The boys twitted him on his leaving the Ateneo and enrolling in the De la
Salle College. Arreglado, resenting the banter, pulled a Japanese luger pistol
(licensed in the name of his father Juan Arreglado), fired the same at Araneta, hitting
him in the lower jaw. Dario was indicted for frustrated homicide and pleaded guilty.
But in view of his youth, he being only 14 years of age, the Court suspended the
proceedings (Art. 80 of the Revised Penal Code). Thereafter, action was instituted by
Araneta and his father against Juan Arreglado, his wife and their son Dario to
recover material, moral and exemplary damages. The Court of First Instance
sentenced the Arreglados to pay P3,943.00 as damages and attorney's fees. The
Aranetas appealed in view of the meager amount of indemnity awarded. This tribunal
affirmed the decision but increased the indemnity to P18,000.00. This decision was
predicated upon the fact that Arreglado's father had acted negligently in allowing his
son to have access to the pistol used to injure Benjamin. And this was the logical
consequence of the case, considering the fact that the civil law liability under Article
2180 is not respondeat superior but the relationship of pater familias which bases the
liability of the father ultimately on his own negligence and not on that of his minor son
(Cuison vs. Norton & Harrison, 55 Phil. 23), and that if an injury is caused by the fault
or negligence of his minor son, the law presumes that there was negligence on the
part of his father (Bahia vs. Litonjua y Leynes, 30 Phil., 625).
In an earlier case (Exconde vs. Capuno, et al., G.R. No. L-10132, prom. June 29,
1957), holding the defendants jointly and severally liable with his minor son Dante for
damages, arising from the criminal act committed by the latter, this tribunal gave the
following reasons for the rule:
The civil liability which the law imposes upon the father and, in case of his
death or incapacity, the mother, for any damages that may be caused by
the minor children who live with them, is obvious. This is a necessary
consequence of the parental authority they exercise over them which
imposes upon the parents the "duty of supporting them, keeping them in
their company, educating them in proportion to their means", while on the
other hand, gives them the "right to correct and punish them in moderation"
(Arts. 134 and 135, Spanish Civil Code). The only way by which they can
relieve themselves of this liability is if they prove that they exercised all the
diligence of a good father of a family to prevent the damage (Art. 1903, last
paragraph, Spanish Civil Code). This, defendants failed to prove.
And a noted Spanish commentator said:
Since children and wards do not yet have the capacity to govern
themselves, the law imposes upon the parents and guardians the duty of
exercising special vigilance over the acts of their children and wards in
order that damages to third persons due to the ignorance, lack of foresight
or discernment of such children and wards may be avoided. If the parents
and guardians fail to comply with this duty, they should suffer the
consequences of their abandonment or negligence by repairing the damage
caused" (12 Manresa, 649-650). (See also Arts. 311 and 316, Civil Code).
It is further argued that the only way by which a father can be made responsible for
the criminal act of his son committed with deliberate intent and with discernment, is
an action based on the provisions of the Revised Penal Code on subsidiary liability
of the parents; that the minor Fuellas having been convicted of serious physical
injuries at the age of 13, the provisions of par. 3 of Art. 12, Revised Penal Code,
could have been applied, but having acted with discernment, Art. 101 of the same
Code can not include him. And as par. 2, of Art. 101, states that "the exemption from
criminal liability established in subdivisions 1, 2, 3, 5 and 6 of Article 12 and in
subdivision 4 of Art. 11 of this Code does not include exemption from civil liability,
which shall be enforced subject to the following rules: First, in cases of subdivisions
1, 2 and 3 of Article 12, the civil liability for acts committed by an 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
51
having such person under their legal authority or control, unless it appears that there
was no fault or negligence on their part," the appellant concluded that this provision
covers only a situation where a minor under 15 but over 9 years old commits a
criminal act "without discernment."
In the recent case of Salen and Salbanera vs. Jose Balce, G.R. No. L-14414, April
27, 1960; 57 Off. Gaz. No. 37, p. 6603, September 11, 1961, the defendant Balce
was the father of a minor Gumersindo Balce, below 18 years of age who was living
with him. Gumersindo was found guilty of homicide for having killed Carlos Salen,
minor son of plaintiffs. The trial court rendered judgment dismissing the case, stating
that the civil liability of the minor son of defendant arising from his criminal liability
must be determined under the provisions of the Revised Penal Code and not under
Art. 2180 of the new Civil Code. In reversing the decision, this tribunal held:
It is true that under Art. 101 of the Revised Penal Code, a father is made
civilly liable for the acts committed by his son only if the latter is an imbecile,
an insane, under 9 years of age, or over 9 but under 15 years of age, who
acts without discernment, unless it appears that there is no fault or
negligence on his part. This is because a son who commits the act under
any of those conditions is by law exempt from criminal liability (Article 12,
subdivisions 1, 2 and 3, Revised Penal Code). The idea is not to leave the
act entirely unpunished but to attach certain civil liability to the person who
has the delinquent minor under his legal authority or control. But a minor
over 15 who acts with discernment is not exempt from criminal liability, for
which reason the Code is silent as to the subsidiary liability of his parents
should he stand convicted. In that case, resort should be had to the general
law which is our Civil Code.
The particular law that governs this case is Article 2180, the pertinent
portion of which provides: "The father and, in case of his death or
incapacity, the mother, are responsible for damages caused by the minor
children who live in their company." To hold that this provision does not
apply to the instant case because it only covers obligations which arise
from quasi-delicts and not obligations which arise from criminal offenses,
would result in the absurdity that while for an act where mere negligence
intervenes the father or mother may stand subsidiarily liable for the damage
caused by his or her son, no liability would attach if the damage is caused
with criminal intent. Verily, the void apparently exists in the Revised Penal
Code is subserved by this particular provision of our Civil Code, as may be
gleaned from some recent decisions of this Court which cover equal or
identical cases.
Moreover, the case at bar was decided by the Court of Appeals on the basis of the
evidence submitted therein by both parties, independently of the criminal case. And
responsibility for fault or negligence under Article 2176 upon which the action in the
present case was instituted, is entirely separate and distinct from the civil liability
arising from fault of negligence under the Penal Code (Art. 2177), and having in mind
the reasons behind the law as heretofore stated, any discussion as to the minor's
criminal responsibility is of no moment.
IN VIEW HEREOF, the petition is dismissed, the decision appealed from is affirmed,
with costs against the petitioner.
EN BANC
G.R. No. L-11154 March 21, 1916
E. MERRITT, plaintiff-appellant,
vs.
GOVERNMENT OF THE PHILIPPINE ISLANDS, defendant-appellant.
Crossfield and O'Brien for plaintiff.
Attorney-General Avancea for defendant..
TRENT, J.:
This is an appeal by both parties from a judgment of the Court of First Instance of the
city of Manila in favor of the plaintiff for the sum of P14,741, together with the costs
of the cause.
Counsel for the plaintiff insist that the trial court erred (1) "in limiting the general
damages which the plaintiff suffered to P5,000, instead of P25,000 as claimed in the
complaint," and (2) "in limiting the time when plaintiff was entirely disabled to two
months and twenty-one days and fixing the damage accordingly in the sum of
P2,666, instead of P6,000 as claimed by plaintiff in his complaint."
The Attorney-General on behalf of the defendant urges that the trial court erred: (a)
in finding that the collision between the plaintiff's motorcycle and the ambulance of
the General Hospital was due to the negligence of the chauffeur; (b) in holding that
the Government of the Philippine Islands is liable for the damages sustained by the
52
plaintiff as a result of the collision, even if it be true that the collision was due to the
negligence of the chauffeur; and (c) in rendering judgment against the defendant for
the sum of P14,741.
The trial court's findings of fact, which are fully supported by the record, are as
follows:
It is a fact not disputed by counsel for the defendant that when the plaintiff,
riding on a motorcycle, was going toward the western part of Calle Padre
Faura, passing along the west side thereof at a speed of ten to twelve miles
an hour, upon crossing Taft Avenue and when he was ten feet from the
southwestern intersection of said streets, the General Hospital ambulance,
upon reaching said avenue, instead of turning toward the south, after
passing the center thereof, so that it would be on the left side of said
avenue, as is prescribed by the ordinance and the Motor Vehicle Act, turned
suddenly and unexpectedly and long before reaching the center of the
street, into the right side of Taft Avenue, without having sounded any whistle
or horn, by which movement it struck the plaintiff, who was already six feet
from the southwestern point or from the post place there.
By reason of the resulting collision, the plaintiff was so severely injured that,
according to Dr. Saleeby, who examined him on the very same day that he
was taken to the General Hospital, he was suffering from a depression in
the left parietal region, a would in the same place and in the back part of his
head, while blood issued from his nose and he was entirely unconscious.
The marks revealed that he had one or more fractures of the skull and that
the grey matter and brain was had suffered material injury. At ten o'clock of
the night in question, which was the time set for performing the operation,
his pulse was so weak and so irregular that, in his opinion, there was little
hope that he would live. His right leg was broken in such a way that the
fracture extended to the outer skin in such manner that it might be regarded
as double and the would be exposed to infection, for which reason it was of
the most serious nature.
At another examination six days before the day of the trial, Dr. Saleeby
noticed that the plaintiff's leg showed a contraction of an inch and a half and
a curvature that made his leg very weak and painful at the point of the
fracture. Examination of his head revealed a notable readjustment of the
functions of the brain and nerves. The patient apparently was slightly deaf,
had a light weakness in his eyes and in his mental condition. This latter
weakness was always noticed when the plaintiff had to do any difficult
mental labor, especially when he attempted to use his money for
mathematical calculations.
According to the various merchants who testified as witnesses, the plaintiff's
mental and physical condition prior to the accident was excellent, and that
after having received the injuries that have been discussed, his physical
condition had undergone a noticeable depreciation, for he had lost the
agility, energy, and ability that he had constantly displayed before the
accident as one of the best constructors of wooden buildings and he could
not now earn even a half of the income that he had secured for his work
because he had lost 50 per cent of his efficiency. As a contractor, he could
no longer, as he had before done, climb up ladders and scaffoldings to
reach the highest parts of the building.
As a consequence of the loss the plaintiff suffered in the efficiency of his
work as a contractor, he had to dissolved the partnership he had formed
with the engineer. Wilson, because he was incapacitated from making
mathematical calculations on account of the condition of his leg and of his
mental faculties, and he had to give up a contract he had for the
construction of the Uy Chaco building."
We may say at the outset that we are in full accord with the trial court to the effect
that the collision between the plaintiff's motorcycle and the ambulance of the General
Hospital was due solely to the negligence of the chauffeur.
The two items which constitute a part of the P14,741 and which are drawn in
question by the plaintiff are (a) P5,000, the award awarded for permanent injuries,
and (b) the P2,666, the amount allowed for the loss of wages during the time the
plaintiff was incapacitated from pursuing his occupation. We find nothing in the
record which would justify us in increasing the amount of the first. As to the second,
the record shows, and the trial court so found, that the plaintiff's services as a
contractor were worth P1,000 per month. The court, however, limited the time to two
months and twenty-one days, which the plaintiff was actually confined in the hospital.
In this we think there was error, because it was clearly established that the plaintiff
was wholly incapacitated for a period of six months. The mere fact that he remained
in the hospital only two months and twenty-one days while the remainder of the six
months was spent in his home, would not prevent recovery for the whole time. We,
therefore, find that the amount of damages sustained by the plaintiff, without any
fault on his part, is P18,075.
53
As the negligence which caused the collision is a tort committed by an agent or
employee of the Government, the inquiry at once arises whether the Government is
legally-liable for the damages resulting therefrom.
Act No. 2457, effective February 3, 1915, reads:
An Act authorizing E. Merritt to bring suit against the Government of the
Philippine Islands and authorizing the Attorney-General of said Islands to
appear in said suit.
Whereas a claim has been filed against the Government of the Philippine
Islands by Mr. E. Merritt, of Manila, for damages resulting from a collision
between his motorcycle and the ambulance of the General Hospital on
March twenty-fifth, nineteen hundred and thirteen;
Whereas it is not known who is responsible for the accident nor is it
possible to determine the amount of damages, if any, to which the claimant
is entitled; and
Whereas the Director of Public Works and the Attorney-General
recommended that an Act be passed by the Legislature authorizing Mr. E.
Merritt to bring suit in the courts against the Government, in order that said
questions may be decided: Now, therefore,
By authority of the United States, be it enacted by the Philippine
Legislature, that:
SECTION 1. E. Merritt is hereby authorized to bring suit in the Court of First
Instance of the city of Manila against the Government of the Philippine
Islands in order to fix the responsibility for the collision between his
motorcycle and the ambulance of the General Hospital, and to determine
the amount of the damages, if any, to which Mr. E. Merritt is entitled on
account of said collision, and the Attorney-General of the Philippine Islands
is hereby authorized and directed to appear at the trial on the behalf of the
Government of said Islands, to defendant said Government at the same.
SEC. 2. This Act shall take effect on its passage.
Enacted, February 3, 1915.
Did the defendant, in enacting the above quoted Act, simply waive its immunity from
suit or did it also concede its liability to the plaintiff? If only the former, then it cannot
be held that the Act created any new cause of action in favor of the plaintiff or
extended the defendant's liability to any case not previously recognized.
All admit that the Insular Government (the defendant) cannot be sued by an
individual without its consent. It is also admitted that the instant case is one against
the Government. As the consent of the Government to be sued by the plaintiff was
entirely voluntary on its part, it is our duty to look carefully into the terms of the
consent, and render judgment accordingly.
The plaintiff was authorized to bring this action against the Government "in order to
fix the responsibility for the collision between his motorcycle and the ambulance of
the General Hospital and to determine the amount of the damages, if any, to which
Mr. E. Merritt is entitled on account of said collision, . . . ." These were the two
questions submitted to the court for determination. The Act was passed "in order that
said questions may be decided." We have "decided" that the accident was due solely
to the negligence of the chauffeur, who was at the time an employee of the
defendant, and we have also fixed the amount of damages sustained by the plaintiff
as a result of the collision. Does the Act authorize us to hold that the Government is
legally liable for that amount? If not, we must look elsewhere for such authority, if it
exists.
The Government of the Philippine Islands having been "modeled after the Federal
and State Governments in the United States," we may look to the decisions of the
high courts of that country for aid in determining the purpose and scope of Act No.
2457.
In the United States the rule that the state is not liable for the torts committed by its
officers or agents whom it employs, except when expressly made so by legislative
enactment, is well settled. "The Government," says Justice Story, "does not
undertake to guarantee to any person the fidelity of the officers or agents whom it
employs, since that would involve it in all its operations in endless embarrassments,
difficulties and losses, which would be subversive of the public interest." (Claussen
vs. City of Luverne, 103 Minn., 491, citing U. S. vs. Kirkpatrick, 9 Wheat, 720; 6 L.
Ed., 199; and Beers vs. States, 20 How., 527; 15 L. Ed., 991.)
In the case of Melvin vs. State (121 Cal., 16), the plaintiff sought to recover damages
from the state for personal injuries received on account of the negligence of the state
officers at the state fair, a state institution created by the legislature for the purpose
of improving agricultural and kindred industries; to disseminate information
calculated to educate and benefit the industrial classes; and to advance by such
54
means the material interests of the state, being objects similar to those sought by the
public school system. In passing upon the question of the state's liability for the
negligent acts of its officers or agents, the court said:
No claim arises against any government is favor of an individual, by reason
of the misfeasance, laches, or unauthorized exercise of powers by its
officers or agents. (Citing Gibbons vs. U. S., 8 Wall., 269; Clodfelter vs.
State, 86 N. C., 51, 53; 41 Am. Rep., 440; Chapman vs. State, 104 Cal.,
690; 43 Am. St. Rep., 158; Green vs. State, 73 Cal., 29; Bourn vs. Hart, 93
Cal., 321; 27 Am. St. Rep., 203; Story on Agency, sec. 319.)
As to the scope of legislative enactments permitting individuals to sue the state
where the cause of action arises out of either fort or contract, the rule is stated in 36
Cyc., 915, thus:
By consenting to be sued a state simply waives its immunity from suit. It
does not thereby concede its liability to plaintiff, or create any cause of
action in his favor, or extend its liability to any cause not previously
recognized. It merely gives a remedy to enforce a preexisting liability and
submits itself to the jurisdiction of the court, subject to its right to interpose
any lawful defense.
In Apfelbacher vs. State (152 N. W., 144, advanced sheets), decided April 16, 1915,
the Act of 1913, which authorized the bringing of this suit, read:
SECTION 1. Authority is hereby given to George Apfelbacher, of the town of
Summit, Waukesha County, Wisconsin, to bring suit in such court or courts
and in such form or forms as he may be advised for the purpose of settling
and determining all controversies which he may now have with the State of
Wisconsin, or its duly authorized officers and agents, relative to the mill
property of said George Apfelbacher, the fish hatchery of the State of
Wisconsin on the Bark River, and the mill property of Evan Humphrey at the
lower end of Nagawicka Lake, and relative to the use of the waters of said
Bark River and Nagawicka Lake, all in the county of Waukesha, Wisconsin.
In determining the scope of this act, the court said:
Plaintiff claims that by the enactment of this law the legislature admitted
liability on the part of the state for the acts of its officers, and that the suit
now stands just as it would stand between private parties. It is difficult to
see how the act does, or was intended to do, more than remove the state's
immunity from suit. It simply gives authority to commence suit for the
purpose of settling plaintiff's controversies with the estate. Nowhere in the
act is there a whisper or suggestion that the court or courts in the
disposition of the suit shall depart from well established principles of law, or
that the amount of damages is the only question to be settled. The act
opened the door of the court to the plaintiff. It did not pass upon the
question of liability, but left the suit just where it would be in the absence of
the state's immunity from suit. If the Legislature had intended to change the
rule that obtained in this state so long and to declare liability on the part of
the state, it would not have left so important a matter to mere inference, but
would have done so in express terms. (Murdock Grate Co. vs.
Commonwealth, 152 Mass., 28; 24 N.E., 854; 8 L. R. A., 399.)
In Denning vs. State (123 Cal., 316), the provisions of the Act of 1893, relied upon
and considered, are as follows:
All persons who have, or shall hereafter have, claims on contract or for
negligence against the state not allowed by the state board of examiners,
are hereby authorized, on the terms and conditions herein contained, to
bring suit thereon against the state in any of the courts of this state of
competent jurisdiction, and prosecute the same to final judgment. The rules
of practice in civil cases shall apply to such suits, except as herein
otherwise provided.
And the court said:
This statute has been considered by this court in at least two cases, arising
under different facts, and in both it was held that said statute did not create
any liability or cause of action against the state where none existed before,
but merely gave an additional remedy to enforce such liability as would
have existed if the statute had not been enacted. (Chapman vs. State, 104
Cal., 690; 43 Am. St. Rep., 158; Melvin vs. State, 121 Cal., 16.)
A statute of Massachusetts enacted in 1887 gave to the superior court "jurisdiction of
all claims against the commonwealth, whether at law or in equity," with an exception
not necessary to be here mentioned. In construing this statute the court, in Murdock
Grate Co. vs. Commonwealth (152 Mass., 28), said:
The statute we are discussing disclose no intention to create against the
state a new and heretofore unrecognized class of liabilities, but only an
intention to provide a judicial tribunal where well recognized existing
liabilities can be adjudicated.
55
In Sipple vs. State (99 N. Y., 284), where the board of the canal claims had, by the
terms of the statute of New York, jurisdiction of claims for damages for injuries in the
management of the canals such as the plaintiff had sustained, Chief Justice Ruger
remarks: "It must be conceded that the state can be made liable for injuries arising
from the negligence of its agents or servants, only by force of some positive statute
assuming such liability."
It being quite clear that Act No. 2457 does not operate to extend the Government's
liability to any cause not previously recognized, we will now examine the substantive
law touching the defendant's liability for the negligent acts of its officers, agents, and
employees. Paragraph 5 of article 1903 of the Civil Code reads:
The state is liable in this sense when it acts through a special agent, but not
when the damage should have been caused by the official to whom
properly it pertained to do the act performed, in which case the provisions of
the preceding article shall be applicable.
The supreme court of Spain in defining the scope of this paragraph said:
That the obligation to indemnify for damages which a third person causes to
another by his fault or negligence is based, as is evidenced by the same
Law 3, Title 15, Partida 7, on that the person obligated, by his own fault or
negligence, takes part in the act or omission of the third party who caused
the damage. It follows therefrom that the state, by virtue of such provisions
of law, is not responsible for the damages suffered by private individuals in
consequence of acts performed by its employees in the discharge of the
functions pertaining to their office, because neither fault nor even
negligence can be presumed on the part of the state in the organization of
branches of public service and in the appointment of its agents; on the
contrary, we must presuppose all foresight humanly possible on its part in
order that each branch of service serves the general weal an that of private
persons interested in its operation. Between these latter and the state,
therefore, no relations of a private nature governed by the civil law can arise
except in a case where the state acts as a judicial person capable of
acquiring rights and contracting obligations. (Supreme Court of Spain,
January 7, 1898; 83 Jur. Civ., 24.)
That the Civil Code in chapter 2, title 16, book 4, regulates the obligations
which arise out of fault or negligence; and whereas in the first article
thereof. No. 1902, where the general principle is laid down that where a
person who by an act or omission causes damage to another through fault
or negligence, shall be obliged to repair the damage so done, reference is
made to acts or omissions of the persons who directly or indirectly cause
the damage, the following articles refers to this persons and imposes an
identical obligation upon those who maintain fixed relations of authority and
superiority over the authors of the damage, because the law presumes that
in consequence of such relations the evil caused by their own fault or
negligence is imputable to them. This legal presumption gives way to proof,
however, because, as held in the last paragraph of article 1903,
responsibility for acts of third persons ceases when the persons mentioned
in said article prove that they employed all the diligence of a good father of
a family to avoid the damage, and among these persons, called upon to
answer in a direct and not a subsidiary manner, are found, in addition to the
mother or the father in a proper case, guardians and owners or directors of
an establishment or enterprise, the state, but not always, except when it
acts through the agency of a special agent, doubtless because and only in
this case, the fault or negligence, which is the original basis of this kind of
objections, must be presumed to lie with the state.
That although in some cases the state might by virtue of the general
principle set forth in article 1902 respond for all the damage that is
occasioned to private parties by orders or resolutions which by fault or
negligence are made by branches of the central administration acting in the
name and representation of the state itself and as an external expression of
its sovereignty in the exercise of its executive powers, yet said article is not
applicable in the case of damages said to have been occasioned to the
petitioners by an executive official, acting in the exercise of his powers, in
proceedings to enforce the collections of certain property taxes owing by
the owner of the property which they hold in sublease.
That the responsibility of the state is limited by article 1903 to the case
wherein it acts through a special agent (and a special agent, in the sense in
which these words are employed, is one who receives a definite and fixed
order or commission, foreign to the exercise of the duties of his office if he
is a special official) so that in representation of the state and being bound to
act as an agent thereof, he executes the trust confided to him. This concept
does not apply to any executive agent who is an employee of the acting
administration and who on his own responsibility performs the functions
which are inherent in and naturally pertain to his office and which are
regulated by law and the regulations." (Supreme Court of Spain, May 18,
1904; 98 Jur. Civ., 389, 390.)
That according to paragraph 5 of article 1903 of the Civil Code and the
principle laid down in a decision, among others, of the 18th of May, 1904, in
56
 a damage case, the responsibility of the state is limited to that which it
contracts through a special agent, duly empowered by a definite order or
commission to perform some act or charged with some definite purpose
which gives rise to the claim, and not where the claim is based on acts or
omissions imputable to a public official charged with some administrative or
technical office who can be held to the proper responsibility in the manner
laid down by the law of civil responsibility. Consequently, the trial court in
not so deciding and in sentencing the said entity to the payment of
damages, caused by an official of the second class referred to, has by
erroneous interpretation infringed the provisions of articles 1902 and 1903
of the Civil Code. (Supreme Court of Spain, July 30, 1911; 122 Jur. Civ.,
146.)
It is, therefore, evidence that the State (the Government of the Philippine Islands) is
only liable, according to the above quoted decisions of the Supreme Court of Spain,
for the acts of its agents, officers and employees when they act as special agents
within the meaning of paragraph 5 of article 1903, supra, and that the chauffeur of
the ambulance of the General Hospital was not such an agent.
For the foregoing reasons, the judgment appealed from must be reversed, without
costs in this instance. Whether the Government intends to make itself legally liable
for the amount of damages above set forth, which the plaintiff has sustained by
reason of the negligent acts of one of its employees, by legislative enactment and by
appropriating sufficient funds therefor, we are not called upon to determine. This
matter rests solely with the Legislature and not with the courts.
EN BANC
G.R. No. L-20322 May 29, 1968
REPUBLIC OF THE PHILIPPINES, petitioner,
vs.
HON. PERFECTO R. PALACIO, as Judge of the Court of First Instance of
Camarines Sur,
MACARIO M. OFILADA, as ex-officio Sheriff of Manila, and ILDEFONSO
ORTIZ, respondents.
Office of the Solicitor General for petitioner.
Luis Contreras for respondents.
REYES, J.B.L., J.:
This is a petition for review of the decision of the Court of Appeals (in CA-G.R. No.
30915), dismissing the original action for certiorari and prohibition filed with said
Court by herein petitioner Republic of the Philippines, to restrain the enforcement of
a writ of execution (issued by the Court of First Instance of Camarines Sur in its Civil
Case No. 4886) on the trust fund in the account of the Irrigation Service Unit with the
Philippine National Bank.
There is no controversy as to the following facts:
On April 2, 1960, Ildefonso Ortiz instituted in the Court of First Instance of Camarines
Sur Civil Case No. 4886, against the Handong Irrigation Association, Inc., a
corporation with principal place of business in Libmanan, Camarines Sur, and the
Irrigation Service Unit, an office or agency under the Department of Public Works
and Communications, to recover possession, with damages, of a 958 square meter-
lot located in Handong, San Juan, Libmanan, Camarines Sur, which the Irrigation
Association allegedly entered and occupied, at the instance of its co-defendant. For
failure to appear and answer the complaint, therein defendant Irrigation Service Unit
was declared in default.
On June 3, 1960, the Republic of the Philippines, through the Solicitor General,
moved for the dismissal of the complaint, claiming that defendant Irrigation Service
Unit has no juridical personality to sue and be sued. By order of June 11, 1960, this
motion was denied, on the ground that the said defendant although a mere agency
of the Republic of the Philippines, is engaged in the private business of selling
irrigation pumps and construction materials on installment plan. The Solicitor
General's motion for reconsideration of the aforesaid order was also denied on July
19, 1960. No appeal appears to have been taken.
On January 29, 1962, the Solicitor General was served with copy of the writ of
execution issued by the court against the defendants in the above-mentioned civil
case; and, on February 16, 1962, an order of garnishment was served by the Sheriff
of Manila against the deposits and/or pump irrigation trust fund in the account of the
Irrigation Service Unit at the Philippine National Bank, Manila, to cover the sum of
P14,874.40.1
57
On March 8, 1962, the Solicitor General, on behalf of the Republic of the Philippines,
filed with the lower court an urgent motion to lift the order of garnishment, for the
reason that the funds subject matter thereof are public funds and exempt from
attachment or execution. Upon denial of this motion, as well as of the motion for
reconsideration of said denial, the Solicitor General commenced the present
certiorari and prohibition proceeding in the Court of Appeals.1vvphi1.nt
In its decision of August 21, 1962, the appellate court sustained the propriety of the
disputed garnishment-order, and dismissed the Government's petition, on the basis
of the finding by the trial court that the Irrigation Service Unit, "formerly an office
under the Department of Agriculture and Natural Resources created by virtue of a
'Memorandum of Agreement on the Irrigation Pump Program of the Philippines',
signed by the Chairman of the PHILCUSA (now NEC), Chief of the MSA Mission
(now AID) and the Secretary of Agriculture and Natural Resources, and presently
under the Department of Public Works and Communications to which it was
transferred", is engaged in a private business of purchase and sale of irrigation
pumps and systems. Consequently, according to the Court of Appeals, and following
the ruling in the case of National Airports Corporation vs. Teodoro, et al., L-5122,
April 30, 1952 (91 Phil. 203), by thus engaging in private business, the Government,
through the Irrigation Service Unit, had actually consented to the suit. Hence, the
present petition for review filed by the Republic of the Philippines.
The issue presented by this case is whether or not the pump irrigation trust fund,
deposited with the Philippine National Bank in the account of the Irrigation Service
Unit, may be garnished to satisfy a money-judgment against the latter. This issue in
turn calls for a determination of the nature of said trust fund, i.e., whether it is a fund
belonging to the National Government (which was not a party to Civil Case No.
4886), as maintained by herein petitioner, or purely the proceeds of a private venture
by the government, as claimed by the respondents.
For a better understanding of the nature, function and operation of the Irrigation
Service Unit (ISU) which is necessary for the proper resolution of the issue herein
involved, it is worthwhile to recall that this office was originally created under the
Department of Agriculture and Natural Resources by virtue of a Memorandum
Agreement between the governments of the Philippines and the United States, dated
August 13, 1952. It was later transferred to the Department of Public Works and
Communications as an office directly under the Office of the Secretary, "to prosecute
to completion the rehabilitation of pump systems transferred from the former
Irrigation Pump Administration of the Department of Agriculture and Natural
Resources,2 including the settlement of the obligations of said administration." The
budgetary requirements to carry out the objectives of the project were to be financed
by withdrawals from the Counterpart Fund-Special Account. (Memorandum
Agreement of June, 1954.)
This Counterpart Fund-Special Account referred to above was established in the
Central Bank by the Government of the Philippines and made up of deposits in
pesos commensurate with the indicated dollar cost to the Government of the United
States of economic and technical assistance made available to the Philippines,
pursuant to the Bilateral Agreement between the Philippines and the United States of
April 27, 1951; of deposits accruing to it (Philippine government) from the sale of
commodities or services supplied under the Agreement or otherwise accruing to it as
a result of the import of such commodities or service; and of any advance deposits
which the Philippine government may make in the Special Account (Sec. 1,
paragraphs 2[a], [b] and [c], Annex to Memo. Agreement of April 27, 1951). Later, on
the basis of a supplemental agreement (No. 2, Counterpart Project No. 409 Pump
Irrigation), the Pump Irrigation Trust Fund was established in the Philippine National
Bank, to which all authorized releases to the ISU3 from the Counterpart Fund
Special Account, to finance the peso-cost of the Irrigation Pump Project, were
transferred. This is the fund on which the disputed writ of execution for money
judgment rendered against the ISU, is being enforced.
A reading of the records and documents submitted to the Court of Appeals will
readily show that the sales of irrigation pumps to farmers by ISU are governed by the
terms of the Supplemental Agreement No. 2 to Counterpart Project No. 409 (signed
by representatives of the Philippine and U. S. governments) hereunder copied in full:
C. Disposition of Proceeds from Payments under Contracts of Sale
1. Under the Guiding Principles of the Irrigation Pump Project, pumps are
sold to farmers' associations under conditional sales contracts. Periodic
payments to ISU by each association are required. The total payment
required under the contract is stated in the contract and is equal to the sum
58
 of (a) the landed cost of equipment at the installation site, (b) the cost of
installation and construction including survey and design, (c) the cost of fuel
and oil financed for the first crop season, if any, (d) ten per cent of the total
of a and b to cover the cost of administration, technical assistance furnished
by the ISU, inspection and collection, and (e) the compensating use tax to
the Philippine Government. Interest is also payable under each contract at
the rate of six percent per annum on any unpaid balance of the total amount
of the contract.
2. All principal and interest payments received by the ISU from farmers'
associations shall be deposited immediately in the Trust Fund. The
separate account established by the project agreement for Counterpart
Project 409, entitled "Irrigation Pump Sales Proceeds Account" is hereby
abolished and any deposits therein will be immediately transferred to the
Trust Fund.
3. Whenever the total value of all deposits made to the Trust Fund from
contract principal and interest payments exceeds the value of total releases
made to the Trust Fund from the Counterpart Fund-Special Account, these
excess deposits shall be transferred from the Trust Fund to the Counter
Fund-Special Account. Such transfers shall be considered as "proceeds of
sale" and "advance deposits" as provided in Annex Section 1, (b) and (c) of
the Bilateral Agreement between the Republic of the Philippines and the
United States of America.
It was also provided therein that the payments by the farmers' associations on
conditional sales agreements specified in paragraph C-2, above, will be considered
in the preparation, and shall form part, of the ISU annual budget, which will finance
the costs of supply and equipment purchases, the installation and construction of
pump units, and the operating expenses of ISU for which appropriated funds are not
available. (Para. B-1).
It is clear from the foregoing that the ISU is not only an office in the Government of
the Republic of the Philippines, created to promote a specific economic policy of said
government, but also that its activity (of selling irrigation pumps to farmers on
installment basis) is not intended to earn profit or financial gain to its operator. The
mere fact that interests are being collected on the balance of the unpaid cost of the
purchased pumps does not convert this economic project of the government into a
corporate activity. As previously pointed out, the installment payments and interests
receivable from the farmers are to be used to replenish the counterpart funds utilized
in furtherance of the operation of the project.
Although evidently acknowledging the nature of the Pump Irrigation Trust Fund as a
public fund, the Court of Appeals nevertheless sustained the garnishment order, on
the ground that the ISU, by engaging in the private business of purchasing and
selling irrigation pumps on installment basis, has waived its governmental immunity
and, by implication, consented to the suit.
It is apparent that this decision of the Court of Appeals suffers from the erroneous
assumption that because the State has waived its immunity, its property and funds
become liable to seizure under the legal process. This emphatically is not the law
(Merritt vs. Insular Government, 34 Phil. 311).
Even though the rule as to immunity of a state from suit is relaxed, the
power of the courts ends when the judgment is rendered. Although the
liability of the state has been judicially ascertained, the state is at liberty to
determine for itself whether to pay the judgment or not, and execution can
not issue on a judgment against the state. Such statutes do not authorize a
seizure of state property to satisfy judgments recovered, and only convey
implication that the legislature will recognize such judgment as final and
make provision for the satisfaction thereof. (49 Am. Jur., Sec. 104, pp. 312-
320.)
Judgments against a state, in cases where it has consented to be sued,
generally operate merely to liquidate and establish plaintiff's claim in the
absence of express provision; otherwise they can not be enforced by
processes of law; and it is for the legislature to provide for their payment in
such manner as it sees fit. (59 C.J. sec. 501, p. 331; 81 C.J.S., sec. 232, p.
1343.)
It needs no stressing that to allow the levying under execution of the ISU funds
would amount to diverting them from the purpose originally contemplated by the
P.I.U.S. Bilateral Agreement, and would amount to a disbursement without any
proper appropriation as required by law.
59
A second infirmity of the decision under appeal originates from its ignoring the fact duties. In this case, the driver Torralba was involved in the construction or
that the initial complaint against the Irrigation Service Unit was that it had induced maintenance of roads which was a governmental duty. Therefore, the province
the Handong Irrigation Association, Inc., to invade and occupy the land of the plaintiff cannot be held liable for his negligent act.
Ildefonso Ortiz. The ISU liability thus arose from tort and not from contract; and it is a
well-entrenched rule in this jurisdiction, embodied in Article 2180 of the Civil Code of
the Philippines, that the State is liable only for torts caused by its special agents,
specially commissioned to carry out the acts complained of outside of such agent's In Palafox, et al., v. Province of Ilocos Norte, et al., 1958, a truck driver employed by
regular duties (Merritt vs. Insular Government, supra; Rosete vs. Auditor General, 81 the provincial government of Ilocos Norte ran over Proceto Palafox in the course of
Phil. 453). There being no proof that the making of the tortious inducement was his work at the construction of a road. The Supreme Court in affirming the trial court's
authorized, neither the State nor its funds can be made liable therefor. dismissal of the complaint for damages held that the province could not be made
liable because its employee was in the performance of a governmental function
the construction and maintenance of roads and however tragic and deplorable it
WHEREFORE, the decision of the Court of Appeals under review is reversed and set
may be, the death of Palafox imposed on the province no duty to pay monetary
aside, and the order of garnishment issued by the Sheriff of Manila on the Pump
consideration. 12
Irrigation Trust Fund in the account of the Irrigation Service Unit, with the Philippine
National Bank, is hereby declared null and void. The writ of preliminary injunction
heretofore issued is made permanent. No costs.

EN BANC

G.R. No. L-21749 September 29, 1967

Leonardo Palafox v. Province of Ilocos Norte

REPUBLIC OF THE PHILIPPINES, plaintiff-appellee,

vs.
Facts: LUZON STEVEDORING CORPORATION, defendant-appellant.

Sabas Torralba was employed as the driver of Ilocos Norte and detailed to Office of the Solicitor General for plaintiff-appellee.
the Office of the District Engineer H. San Luis and L.V. Simbulan for defendant-appellant.
While driving his truck, he ran over Proceto Palafox and the victim died.
Sabas was prosecuted for homicide through reckless imprudence to which
he pleaded guilty.
The heirs of Palafox instituted a civil case against the Province, District
Engineer, Provincial Treasurer and Sabas Torralba.

REYES, J.B.L., J.:

Issue: WON the Province of Ilocos Norte can be held liable? NO
The present case comes by direct appeal from a decision of the Court of First
Instance of Manila (Case No. 44572) adjudging the defendant-appellant, Luzon
Ratio: Stevedoring Corporation, liable in damages to the plaintiff-appellee Republic of the
Philippines.
This case highlights the general rule that local government units are not liable for
negligent acts of its employees while they are performing governmental functions or

60
In the early afternoon of August 17, 1960, barge L-1892, owned by the Luzon
Stevedoring Corporation was being towed down the Pasig river by tugboats
"Bangus" and "Barbero"1 also belonging to the same corporation, when the barge
rammed against one of the wooden piles of the Nagtahan bailey bridge, smashing
the posts and causing the bridge to list. The river, at the time, was swollen and the
current swift, on account of the heavy downpour of Manila and the surrounding
provinces on August 15 and 16, 1960.
Sued by the Republic of the Philippines for actual and consequential damage caused
by its employees, amounting to P200,000 (Civil Case No. 44562, CFI of Manila),
defendant Luzon Stevedoring Corporation disclaimed liability therefor, on the
grounds that it had exercised due diligence in the selection and supervision of its
employees; that the damages to the bridge were caused by force majeure; that
plaintiff has no capacity to sue; and that the Nagtahan bailey bridge is an obstruction
to navigation.
After due trial, the court rendered judgment on June 11, 1963, holding the defendant
liable for the damage caused by its employees and ordering it to pay to plaintiff the
actual cost of the repair of the Nagtahan bailey bridge which amounted to
P192,561.72, with legal interest thereon from the date of the filing of the complaint.
Defendant appealed directly to this Court assigning the following errors allegedly
committed by the court a quo, to wit:
I The lower court erred in not holding that the herein defendant-appellant
had exercised the diligence required of it in the selection and supervision of
its personnel to prevent damage or injury to others.1awphl.nt
II The lower court erred in not holding that the ramming of the Nagtahan
bailey bridge by barge L-1892 was caused by force majeure.
III The lower court erred in not holding that the Nagtahan bailey bridge is
an obstruction, if not a menace, to navigation in the Pasig river.
IV The lower court erred in not blaming the damage sustained by the
Nagtahan bailey bridge to the improper placement of the dolphins.
V The lower court erred in granting plaintiff's motion to adduce further
evidence in chief after it has rested its case.
VI The lower court erred in finding the plaintiff entitled to the amount of
P192,561.72 for damages which is clearly exorbitant and without any
factual basis.
However, it must be recalled that the established rule in this jurisdiction is that when
a party appeals directly to the Supreme Court, and submits his case there for
decision, he is deemed to have waived the right to dispute any finding of fact made
by the trial Court. The only questions that may be raised are those of law (Savellano
vs. Diaz, L-17441, July 31, 1963; Aballe vs. Santiago, L-16307, April 30, 1963;
G.S.I.S. vs. Cloribel, L-22236, June 22, 1965). A converso, a party who resorts to the
Court of Appeals, and submits his case for decision there, is barred from contending
later that his claim was beyond the jurisdiction of the aforesaid Court. The reason is
that a contrary rule would encourage the undesirable practice of appellants'
submitting their cases for decision to either court in expectation of favorable
judgment, but with intent of attacking its jurisdiction should the decision be
unfavorable (Tyson Tan, et al. vs. Filipinas Compaia de Seguros) et al., L-10096,
Res. on Motion to Reconsider, March 23, 1966). Consequently, we are limited in this
appeal to the issues of law raised in the appellant's brief.
Taking the aforesaid rules into account, it can be seen that the only reviewable
issues in this appeal are reduced to two:
1) Whether or not the collision of appellant's barge with the supports or
piers of the Nagtahan bridge was in law caused by fortuitous event or force
majeure, and
2) Whether or not it was error for the Court to have permitted the plaintiff-
appellee to introduce additional evidence of damages after said party had
rested its case.
As to the first question, considering that the Nagtahan bridge was an immovable and
stationary object and uncontrovertedly provided with adequate openings for the
passage of water craft, including barges like of appellant's, it is undeniable that the
unusual event that the barge, exclusively controlled by appellant, rammed the bridge
supports raises a presumption of negligence on the part of appellant or its
employees manning the barge or the tugs that towed it. For in the ordinary course of
events, such a thing does not happen if proper care is used. In Anglo American
Jurisprudence, the inference arises by what is known as the "res ipsa loquitur" rule
(Scott vs. London Docks Co., 2 H & C 596; San Juan Light & Transit Co. vs.
Requena, 224 U.S. 89, 56 L. Ed., 680; Whitwell vs. Wolf, 127 Minn. 529, 149 N.W.
299; Bryne vs. Great Atlantic & Pacific Tea Co., 269 Mass. 130; 168 N.E. 540;
Gribsby vs. Smith, 146 S.W. 2d 719).
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The appellant strongly stresses the precautions taken by it on the day in question:
that it assigned two of its most powerful tugboats to tow down river its barge L-1892;
that it assigned to the task the more competent and experienced among its patrons,
had the towlines, engines and equipment double-checked and inspected; that it
instructed its patrons to take extra precautions; and concludes that it had done all it
was called to do, and that the accident, therefore, should be held due to force
majeure or fortuitous event.
These very precautions, however, completely destroy the appellant's defense.
For caso fortuito or force majeure(which in law are identical in so far as they exempt
an obligor from liability)2 by definition, are extraordinary events not foreseeable or
avoidable, "events that could not be foreseen, or which, though foreseen, were
inevitable" (Art. 1174, Civ. Code of the Philippines). It is, therefore, not enough that
the event should not have been foreseen or anticipated, as is commonly believed,
but it must be one impossible to foresee or to avoid. The mere difficulty to foresee
the happening is not impossibility to foresee the same: "un hecho no constituye caso
fortuito por la sola circunstancia de que su existencia haga mas dificil o mas onerosa
la accion diligente del presento ofensor" (Peirano Facio, Responsibilidad Extra-
contractual, p. 465; Mazeaud Trait de la Responsibilite Civil, Vol. 2, sec. 1569). The
very measures adopted by appellant prove that the possibility of danger was not only
foreseeable, but actually foreseen, and was not caso fortuito.
Otherwise stated, the appellant, Luzon Stevedoring Corporation, knowing and
appreciating the perils posed by the swollen stream and its swift current, voluntarily
entered into a situation involving obvious danger; it therefore assured the risk, and
can not shed responsibility merely because the precautions it adopted turned out to
be insufficient. Hence, the lower Court committed no error in holding it negligent in
not suspending operations and in holding it liable for the damages caused.
It avails the appellant naught to argue that the dolphins, like the bridge, were
improperly located. Even if true, these circumstances would merely emphasize the
need of even higher degree of care on appellant's part in the situation involved in the
present case. The appellant, whose barges and tugs travel up and down the river
everyday, could not safely ignore the danger posed by these allegedly improper
constructions that had been erected, and in place, for years.
On the second point: appellant charges the lower court with having abused its
discretion in the admission of plaintiff's additional evidence after the latter had rested
its case. There is an insinuation that the delay was deliberate to enable the
manipulation of evidence to prejudice defendant-appellant.
We find no merit in the contention. Whether or not further evidence will be allowed
after a party offering the evidence has rested his case, lies within the sound
discretion of the trial Judge, and this discretion will not be reviewed except in clear
case of abuse.3
In the present case, no abuse of that discretion is shown. What was allowed to be
introduced, after plaintiff had rested its evidence in chief, were vouchers and papers
to support an item of P1,558.00 allegedly spent for the reinforcement of the panel of
the bailey bridge, and which item already appeared in Exhibit GG. Appellant, in fact,
has no reason to charge the trial court of being unfair, because it was also able to
secure, upon written motion, a similar order dated November 24, 1962, allowing
reception of additional evidence for the said defendant-appellant.4
WHEREFORE, finding no error in the decision of the lower Court appealed from, the
same is hereby affirmed. Costs against the defendant-appellant.
62