“Carretela-Taxi Collition” A.K.A. Is every driver named Pedro?

FAUSTO BARREDO vs. SEVERINO GARCIA and TIMOTEA ALMARIO [G.R. No. L-48006. July 8, 1942]

FACTS: On May 3, 1936, 1:30AM, on the road between Malabon and Navotas, a taxi of the Malate Taxicab driven by
Pedro Fontanilla and a carretela guided by Pedro Dimapalis collided. The passenger of the carretela, 16-year-old
Faustino Garcia, got injured and died two days later. A criminal action was filed against Fontanilla in CFI-Rizal. He was
convicted and sentenced to an indeterminate sentence of one year and one day to two years of prision correccional.
The court in the criminal case granted the petition that the right to bring a separate civil action be reserved. The
appelated court affirmed the decision of CFI. Severino Garcia and Timotea Almario (parents of Faustino) brought an
action in CFI-Manila against Fausto Barredo as the sole proprietor of the Malate Taxicab and employer of Pedro
Fontanilla.

CFI: awarded damages in favor of the parents of the dead kid for P2,000 plus legal interest.

CA: modified the decision of the CFI by reducing the damages to P1,000 with legal interest from the time the action
was instituted. It is undisputed that Fontanilla 's negligence was the cause of the mishap, as he was driving on the
wrong side of the road, and at high speed. As to Barredo's responsibility, the Court of Appeals found that Barredo
“was careless in employing Fontanilla who had been caught several times for violation of the Automobile Law and
speeding , as found in the records of the Bureau of Public Works. Therefore, he must indemnify plaintiffs under the
provisions of article 1903 of the Civil Code.”

BARREDO: defense is that the liability of Fausto Barredo is governed by RPC; hence, his liability is only subsidiary, and
as there has been no civil action against Pedro Fontanilla, the person criminally liable, Barredo cannot be held
responsible in the case.

ISSUE: W/N the plaintiffs may bring this separate civil action against Fausto Barredo, thus making him primarily
and directly, responsible under article 1903 of the Civil Code as an employer of Pedro Fontanilla.

The defendant maintains that Fontanilla's negligence being punishable by the Penal Code, his (defendant's) liability
as an employer is only subsidiary, according to said Penal code, but Fontanilla has not been sued in a civil action and
his property has not been exhausted. To decide the main issue, we must cut through the tangle that has, in the minds
of many confused and jumbled together delitos and cuasi delitos, or crimes under the Penal Code and fault or
negligence under articles 1902-1910 of the Civil Code. This should be done, because justice may be lost in a labyrinth,
unless principles and remedies are distinctly envisaged. Fortunately, we are aided in our inquiry by the luminous
presentation of the perplexing subject by renown jurists and we are likewise guided by the decisions of this Court in
previous cases as well as by the solemn clarity of the consideration in several sentences of the Supreme Tribunal of
Spain.

Authorities support the proposition that a quasi-delict or "culpa aquiliana " is a separate legal institution under the
Civil Code with a substantivity all its own, and individuality that is entirely apart and independent from delict or
crime. Upon this principle and on the wording and spirit article 1903 of the Civil Code, the primary and direct
responsibility of employers may be safely anchored.

The pertinent provisions of the Civil Code and Revised Penal Code are as follows:

CIVIL CODE

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

xxx xxx xxx

ART. 1092. Civil obligations arising from felonies or misdemeanors shall be governed by the provisions of the
Penal Code.

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

xxx xxx xxx

 ART 1902. Any person who by an act or omission causes damage to another by his fault or negligence shall
be liable for the damage so done.

ART. 1903. The obligation imposed by the next preceding article is enforcible, not only for personal acts and
omissions, but also for those of persons for whom another is responsible.

The father and in, case of his death or incapacity, the mother, are liable for any damages caused by the minor
children who live with them.

Guardians are liable for damages done by minors or incapacitated persons subject to their authority and
living with them.

Owners or directors of an establishment or business are equally liable for any damages caused by their
employees while engaged in the branch of the service in which employed, or on occasion of the performance
of their duties.

The State is subject to the same liability when it acts through a special agent, but not if the damage shall
have been caused by the official upon whom properly devolved the duty of doing the act performed, in
which case the provisions of the next preceding article shall be applicable.

Finally, teachers or directors of arts trades are liable for any damages caused by their pupils or apprentices
while they are under their custody.

The liability imposed by this article shall cease in case the persons mentioned therein prove that they are
exercised all the diligence of a good father of a family to prevent the damage.

ART. 1904. Any person who pays for damage caused by his employees may recover from the latter what he
may have paid.

REVISED PENAL CODE

ART. 100. Civil liability of a person guilty of felony. — Every person criminally liable for a felony is also civilly
liable.

ART. 101. Rules regarding civil liability in certain cases. — The exemption from criminal liability established in
subdivisions 1, 2, 3, 5, and 6 of article 12 and in subdivision 4 of article 11 of this Code does not include
exemption from civil liability, which shall be enforced to the following rules:

First. In cases of subdivision, 1, 2 and 3 of article 12 the civil liability for acts committed by any imbecile or
insane person, and by a person under nine years of age, or by one over nine but under fifteen years of age,
who has acted without discernment shall devolve upon those having such person under their legal authority
or control, unless it appears that there was no fault or negligence on their part.

Should there be no person having such insane, imbecile or minor under his authority, legal guardianship, or
control, or if such person be insolvent, said insane, imbecile, or minor shall respond with their own property,
excepting property exempt from execution, in accordance with the civil law.

Second. In cases falling within subdivision 4 of article 11, the person for whose benefit the harm has been
prevented shall be civilly liable in proportion to the benefit which they may have received.

The courts shall determine, in their sound discretion, the proportionate amount for which each one shall be liable.

When the respective shares can not be equitably determined, even approximately, or when the liability also attaches
to the Government, or to the majority of the inhabitants of the town, and, in all events, whenever the damage has
been caused with the consent of the authorities or their agents, indemnification shall be made in the manner
prescribed by special laws or regulations.

Third. In cases falling within subdivisions 5 and 6 of article 12, the persons using violence or causing the fear shall be
primarily liable and secondarily, or, if there be no such persons, those doing the act shall be liable, saving always to
the latter that part of their property exempt from execution.

ART. 102. Subsidiary civil liability of innkeepers, tavern keepers and proprietors of establishment. — In default
of persons criminally liable, innkeepers, tavern keepers, and any other persons or corporation shall be civilly
 liable for crimes committed in their establishments, in all cases where a violation of municipal ordinances or
some general or special police regulation shall have been committed by them or their employees.

Innkeepers are also subsidiarily liable for the restitution of goods taken by robbery or theft within their
houses lodging therein, or the person, or for the payment of the value thereof, provided that such guests
shall have notified in advance the innkeeper himself, or the person representing him, of the deposit of such
goods within the inn; and shall furthermore have followed the directions which such innkeeper or his
representative may have given them with respect to the care of and vigilance over such goods. No liability
shall attach in case of robbery with violence against or intimidation against or intimidation of persons unless
committed by the innkeeper's employees.

ART. 103. Subsidiary civil liability of other persons. — The subsidiary liability established in the next preceding
article shall also apply to employers, teachers, persons, and corporations engaged in any kind of industry for
felonies committed by their servants, pupils, workmen, apprentices, or employees in the discharge of their
duties.

xxx xxx xxx

ART. 365. Imprudence and negligence. — Any person who, by reckless imprudence, shall commit any act
which, had it been intentional, would constitute a grave felony, shall suffer the penalty of arresto mayor in its
maximum period to prision correccional in its minimum period; if it would have constituted a less grave
felony, the penalty of arresto mayor in its minimum and medium periods shall be imposed.

Any person who, by simple imprudence or negligence, shall commit an act which would otherwise constitute
a grave felony, shall suffer the penalty of arresto mayor in its medium and maximum periods; if it would have
constituted a less serious felony, the penalty of arresto mayor in its minimum period shall be imposed."

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

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

The distinctive nature of cuasi-delitos survives in the Civil Code. According to article 1089, one of the five sources of
obligations is this legal institution of cuasi-delito or culpa extra-contractual: "los actos . . . en que intervenga
cualquier genero de culpa o negligencia." Then article 1093 provides that this kind of obligation shall be governed by
Chapter II of Title XVI of Book IV, meaning articles 1902-0910. This portion of the Civil Code is exclusively devoted to
the legal institution of culpa aquiliana.

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

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

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

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

Let us now ascertain what some jurists say on the separate existence of quasi-delicts and the employer's primary and
direct liability under article 1903 of the Civil Code.

Dorado Montero in his essay on "Responsibilidad" in the "Enciclopedia Juridica Española" (Vol. XXVII, p. 414) says:

El concepto juridico de la responsabilidad civil abarca diversos aspectos y comprende a diferentes personas.
Asi, existe una responsabilidad civil propiamente dicha, que en ningun casl lleva aparejada responsabilidad
criminal alguna, y otra que es consecuencia indeclinable de la penal que nace de todo delito o falta."

The juridical concept of civil responsibility has various aspects and comprises different persons. Thus, there is
a civil responsibility, properly speaking, which in no case carries with it any criminal responsibility, and
another which is a necessary consequence of the penal liability as a result of every felony or misdemeanor."

Maura, an outstanding authority, was consulted on the following case: There had been a collision between two trains
belonging respectively to the Ferrocarril Cantabrico and the Ferrocarril del Norte. An employee of the latter had been
prosecuted in a criminal case, in which the company had been made a party as subsidiarily responsible in civil
damages. The employee had been acquitted in the criminal case, and the employer, the Ferrocarril del Norte, had
also been exonerated. The question asked was whether the Ferrocarril Cantabrico could still bring a civil action for
damages against the Ferrocarril del Norte. Maura's opinion was in the affirmative, stating in part
(Maura, Dictamenes, Vol. 6, pp. 511-513):

Quedando las cosas asi, a proposito de la realidad pura y neta de los hechos, todavia menos parece
sostenible que exista cosa juzgada acerca de la obligacion civil de indemnizar los quebrantos y menoscabos
inferidos por el choque de los trenes. El titulo en que se funda la accion para demandar el resarcimiento, no
puede confundirse con las responsabilidades civiles nacidas de delito, siquiera exista en este, sea el cual sea,
una culpa rodeada de notas agravatorias que motivan sanciones penales, mas o menos severas. La lesion
causada por delito o falta en los derechos civiles, requiere restituciones, reparaciones o indemnizaciones, que
cual la pena misma atañen al orden publico; por tal motivo vienen encomendadas, de ordinario, al Ministerio
Fiscal; y claro es que si por esta via se enmiendan los quebrantos y menoscabos, el agraviado excusa procurar
el ya conseguido desagravio; pero esta eventual coincidencia de los efectos, no borra la diversidad originaria
de las acciones civiles para pedir indemnizacion.

Estas, para el caso actual (prescindiendo de culpas contractuales, que no vendrian a cuento y que tiene otro
regimen), dimanan, segun el articulo 1902 del Codigo Civil, de toda accion u omision, causante de daños o
perjuicios, en que intervenga culpa o negligencia. Es trivial que acciones semejantes son ejercitadas ante los
Tribunales de lo civil cotidianamente, sin que la Justicia punitiva tenga que mezclarse en los asuntos. Los
articulos 18 al 21 y 121 al 128 del Codigo Penal, atentos al espiritu y a los fines sociales y politicos del mismo,
desenvuelven y ordenan la materia de responsabilidades civiles nacidas de delito, en terminos separados del
regimen por ley comun de la culpa que se denomina aquiliana, por alusion a precedentes legislativos
del Corpus Juris. Seria intempestivo un paralelo entre aquellas ordenaciones, y la de la obligacion de
indemnizar a titulo de culpa civil; pero viene al caso y es necesaria una de las diferenciaciones que en el tal
paralelo se notarian.

Los articulos 20 y 21 del Codigo Penal, despues de distribuir a su modo las responsabilidades civiles, entre los
que sean por diversos conceptos culpables del delito o falta, las hacen extensivas a las empresas y los
establecimientos al servicio de los cuales estan los delincuentes; pero con caracter subsidiario, o sea, segun el
texto literal, en defecto de los que sean responsables criminalmente. No coincide en ello el Codigo Civil, cuyo
articulo 1903, dice; La obligacion que impone el articulo anterior es exigible, no solo por los actos y omisiones
propios, sino por los de aquellas personas de quienes se debe responder; personas en la enumeracion de las
cuales figuran los dependientes y empleados de los establecimientos o empresas, sea por actos del servicio,
sea con ocasion de sus funciones. Por esto acontece, y se observa en la jurisprudencia, que las empresas,
despues de intervenir en las causas criminales con el caracter subsidiario de su responsabilidad civil por razon
del delito, son demandadas y condenadas directa y aisladamente, cuando se trata de la obligacion, ante los
tribunales civiles.

Siendo como se ve, diverso el titulo de esta obligacion, y formando verdadero postulado de nuestro regimen
judicial la separacion entre justicia punitiva y tribunales de lo civil, de suerte que tienen unos y otros normas
de fondo en distintos cuerpos legales, y diferentes modos de proceder, habiendose, por añadidura, abstenido
de asistir al juicio criminal la Compañia del Ferrocarril Cantabrico, que se reservo ejercitar sus acciones,
parece innegable que la de indemnizacion por los daños y perjuicios que le irrogo el choque, no estuvo sub
judice ante el Tribunal del Jurado, ni fue sentenciada, sino que permanecio intacta, al pronunciarse el fallo de
21 de marzo. Aun cuando el veredicto no hubiese sido de inculpabilidad, mostrose mas arriba, que tal accion
quedaba legitimamente reservada para despues del proceso; pero al declararse que no existio delito, ni
responsabilidad dimanada de delito, materia unica sobre que tenian jurisdiccion aquellos juzgadores, se
redobla el motivo para la obligacion civil ex lege, y se patentiza mas y mas que la accion para pedir su
cumplimiento permanece incolume, extraña a la cosa juzgada.

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

Such civil actions in the present case (without referring to contractual faults which are not pertinent and
belong to another scope) are derived, according to article 1902 of the Civil Code, from every act or omission
causing losses and damages in which culpa or negligence intervenes. It is unimportant that such actions are
every day filed before the civil courts without the criminal courts interfering therewith. Articles 18 to 21 and
121 to 128 of the Penal Code, bearing in mind the spirit and the social and political purposes of that Code,
develop and regulate the matter of civil responsibilities arising from a crime, separately from the regime
under common law, of culpa which is known as aquiliana, in accordance with legislative precedent of
the Corpus Juris. It would be unwarranted to make a detailed comparison between the former provisions and
that regarding the obligation to indemnify on account of civil culpa; but it is pertinent and necessary to point
out to one of such differences.

Articles 20 and 21 of the Penal Code, after distriburing in their own way the civil responsibilities among those
who, for different reasons, are guilty of felony or misdemeanor, make such civil responsibilities applicable to
enterprises and establishments for which the guilty parties render service, but with subsidiary character, that
is to say, according to the wording of the Penal Code, in default of those who are criminally responsible. In
this regard, the Civil Code does not coincide because article 1903 says: "The obligation imposed by the next
preceding article is demandable, not only for personal acts and omissions, but also for those of persons for
whom another is responsible." Among the persons enumerated are the subordinates and employees of
establishments or enterprises, either for acts during their service or on the occasion of their functions. It is
for this reason that it happens, and it is so observed in judicial decisions, that the companies or enterprises,
after taking part in the criminal cases because of their subsidiary civil responsibility by reason of the crime,
are sued and sentenced directly and separately with regard to the obligation, before the civil courts.

Seeing that the title of this obligation is different, and the separation between punitive justice and the civil
courts being a true postulate of our judicial system, so that they have different fundamental norms in
different codes, as well as different modes of procedure, and inasmuch as the Compaña del Ferrocarril
Cantabrico has abstained from taking part in the criminal case and has reserved the right to exercise its
actions, it seems undeniable that the action for indemnification for the losses and damages caused to it by
the collision was not sub judice before the Tribunal del Jurado, nor was it the subject of a sentence, but it
remained intact when the decision of March 21 was rendered. Even if the verdict had not been that of
acquittal, it has already been shown that such action had been legitimately reserved till after the criminal
prosecution; but because of the declaration of the non-existence of the felony and the non-existence of the
responsibility arising from the crime, which was the sole subject matter upon which the Tribunal del
Jurado had jurisdiction, there is greater reason for the civil obligation ex lege, and it becomes clearer that the
action for its enforcement remain intact and is not res judicata.
Laurent, a jurist who has written a monumental work on the French Civil Code, on which the Spanish Civil Code is
largely based and whose provisions on cuasi-delito or culpa extra-contractual are similar to those of the Spanish Civil
Code, says, referring to article 1384 of the French Civil Code which corresponds to article 1903, Spanish Civil Code:

The action can be brought directly against the person responsible (for another), without including the author
of the act. The action against the principal is accessory in the sense that it implies the existence of a
prejudicial act committed by the employee, but it is not subsidiary in the sense that it can not be instituted
till after the judgment against the author of the act or at least, that it is subsidiary to the principal action; the
action for responsibility (of the employer) is in itself a principal action. (Laurent, Principles of French Civil
Law, Spanish translation, Vol. 20, pp. 734-735.)

Amandi, in his "Cuestionario del Codigo Civil Reformado" (Vol. 4, pp. 429, 430), declares that the responsibility of the
employer is principal and not subsidiary. He writes:

Cuestion 1. La responsabilidad declarada en el articulo 1903 por las acciones u omisiones de aquellas
personas por las que se debe responder, es subsidiaria? es principal? Para contestar a esta pregunta es
necesario saber, en primer lugar, en que se funda el precepto legal. Es que realmente se impone una
responsabilidad por una falta ajena? Asi parece a primera vista; pero semejante afirmacion seria contraria a
la justicia y a la maxima universal, segun la que las faltas son personales, y cada uno responde de aquellas
que le son imputables. La responsabilidad de que tratamos se impone con ocasion de un delito o culpa, pero
no por causa de ellos, sino por causa del causi delito, esto es, de la imprudencia o de la negligencia del padre,
del tutor, del dueño o director del establecimiento, del maestro, etc. Cuando cualquiera de las personas que
enumera el articulo citado (menores de edad, incapacitados, dependientes, aprendices) causan un daño, la
ley presume que el padre, el tutor, el maestro, etc., han cometido una falta de negligencia para prevenir o
evitar el daño. Esta falta es la que la ley castiga. No hay, pues, responsabilidad por un hecho ajeno, sino en la
apariencia; en realidad la responsabilidad se exige por un hecho propio. La idea de que esa responsabilidad
sea subsidiaria es, por lo tanto, completamente inadmisible.

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

Oyuelos, in his "Digesto: Principios, Doctrina y Jurisprudencia, Referentes al Codigo Civil Español," says in Vol. VII, p.
743:

Es decir, no responde de hechos ajenos, porque se responde solo de su propia culpa, doctrina del articulo
1902; mas por excepcion, se responde de la ajena respecto de aquellas personas con las que media algun
nexo o vinculo, que motiva o razona la responsabilidad. Esta responsabilidad, es directa o es subsidiaria? En
el orden penal, el Codigo de esta clase distingue entre menores e incapacitados y los demas, declarando
directa la primera (articulo 19) y subsidiaria la segunda (articulos 20 y 21); pero en el orden civil, en el caso
del articulo 1903, ha de entenderse directa, por el tenor del articulo que impone la responsabilidad
precisamente "por los actos de aquellas personas de quienes se deba responder."

That is to say, one is not responsible for the acts of others, because one is liable only for his own faults, this
being the doctrine of article 1902; but, by exception, one is liable for the acts of those persons with whom
there is a bond or tie which gives rise to the responsibility. Is this responsibility direct or subsidiary? In the
order of the penal law, the Penal Code distinguishes between minors and incapacitated persons on the one
hand, and other persons on the other, declaring that the responsibility for the former is direct (article 19),
and for the latter, subsidiary (articles 20 and 21); but in the scheme of the civil law, in the case of article
 1903, the responsibility should be understood as direct, according to the tenor of that articles, for precisely it
imposes responsibility "for the acts of those persons for whom one should be responsible."

Coming now to the sentences of the Supreme Tribunal of Spain, that court has upheld the principles above set forth:
that a quasi-delict or culpa extra-contractual is a separate and distinct legal institution, independent from the civil
responsibility arising from criminal liability, and that an employer is, under article 1903 of the Civil Code, primarily
and directly responsible for the negligent acts of his employee.

One of the most important of those Spanish decisions is that of October 21, 1910. In that case, Ramon Lafuente died
as the result of having been run over by a street car owned by the "compañia Electric Madrileña de Traccion." The
conductor was prosecuted in a criminal case but he was acquitted. Thereupon, the widow filed a civil action against
the street car company, paying for damages in the amount of 15,000 pesetas. The lower court awarded damages; so
the company appealed to the Supreme Tribunal, alleging violation of articles 1902 and 1903 of the Civil Code because
by final judgment the non-existence of fault or negligence had been declared. The Supreme Court of Spain dismissed
the appeal, saying:

Considerando que el primer motivo del recurso se funda en el equivocado supuesto de que el Tribunal a quo,
al condonar a la compañia Electrica Madrileña al pago del daño causado con la muerte de Ramon La fuente
Izquierdo, desconoce el valor y efectos juridicos de la sentencia absolutoria deictada en la causa criminal que
se siguio por el mismo hecho, cuando es lo cierto que de este han conocido las dos jurisdicciones bajo
diferentes as pectos, y como la de lo criminal declrao dentro de los limites de su competencia que el hecho de
que se trata no era constitutivo de delito por no haber mediado descuido o negligencia graves, lo que no
excluye, siendo este el unico fundamento del fallo absolutorio, el concurso de la culpa o negligencia no
califacadas, fuente de obligaciones civiles segun el articulo 1902 del Codigo, y que alcanzan, segun el 1903,
netre otras perosnas, a los Directores de establecimientos o empresas por los daños causados por sus
dependientes en determinadas condiciones, es manifesto que la de lo civil, al conocer del mismo hehco baho
este ultimo aspecto y al condenar a la compañia recurrente a la indemnizacion del daño causado por uno de
sus empleados, lejos de infringer los mencionados textos, en relacion con el articulo 116 de la Ley de
Enjuciamiento Criminal, se ha atenido estrictamente a ellos, sin invadir atribuciones ajenas a su jurisdiccion
propia, ni contrariar en lo mas minimo el fallo recaido en la causa.

Considering that the first ground of the appeal is based on the mistaken supposition that the trial court, in
sentencing the Compañia Madrileña to the payment of the damage caused by the death of Ramon Lafuente
Izquierdo, disregards the value and juridical effects of the sentence of acquittal rendered in the criminal case
instituted on account of the same act, when it is a fact that the two jurisdictions had taken cognizance of the
same act in its different aspects, and as the criminal jurisdiction declared within the limits of its authority
that the act in question did not constitute a felony because there was no grave carelessness or negligence,
and this being the only basis of acquittal, it does no exclude the co-existence of fault or negligence which is
not qualified, and is a source of civil obligations according to article 1902 of the Civil Code, affecting, in
accordance with article 1903, among other persons, the managers of establishments or enterprises by
reason of the damages caused by employees under certain conditions, it is manifest that the civil jurisdiccion
in taking cognizance of the same act in this latter aspect and in ordering the company, appellant herein, to
pay an indemnity for the damage caused by one of its employees, far from violating said legal provisions, in
relation with article 116 of the Law of Criminal Procedure, strictly followed the same, without invading
attributes which are beyond its own jurisdiction, and without in any way contradicting the decision in that
cause. (Emphasis supplied.)

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

First. That the conductor was not sued in a civil case, either separately or with the street car company. This is
precisely what happens in the present case: the driver, Fontanilla, has not been sued in a civil action, either alone or
with his employer.

Second. That the conductor had been acquitted of grave criminal negligence, but the Supreme Tribunal of Spain said
that this did not exclude the co-existence of fault or negligence, which is not qualified, on the part of the conductor,
under article 1902 of the Civil Code. In the present case, the taxi driver was found guilty of criminal negligence, so
that if he had even sued for his civil responsibility arising from the crime, he would have been held primarily liable for
civil damages, and Barredo would have been held subsidiarily liable for the same. But the plaintiffs are directly suing
Barredo, on his primary responsibility because of his own presumed negligence — which he did not overcome —
under article 1903. Thus, there were two liabilities of Barredo: first, the subsidiary one because of the civil liability of
the taxi driver arising from the latter's criminal negligence; and, second, Barredo's primary liability as an employer
under article 1903. The plaintiffs were free to choose which course to take, and they preferred the second remedy. In
so doing, they were acting within their rights. It might be observed in passing, that the plaintiff choose the more
expeditious and effective method of relief, because Fontanilla was either in prison, or had just been released, and
besides, he was probably without property which might be seized in enforcing any judgment against him for
damages.

Third. That inasmuch as in the above sentence of October 21, 1910, the employer was held liable civilly,
notwithstanding the acquittal of the employee (the conductor) in a previous criminal case, with greater reason
should Barredo, the employer in the case at bar, be held liable for damages in a civil suit filed against him because his
taxi driver had been convicted. The degree of negligence of the conductor in the Spanish case cited was less than
that of the taxi driver, Fontanilla, because the former was acquitted in the previous criminal case while the latter was
found guilty of criminal negligence and was sentenced to an indeterminate sentence of one year and one day to two
years of prision correccional.

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

In the Sentence of the Supreme Court of Spain, dated February 14, 1919, an action was brought against a railroad
company for damages because the station agent, employed by the company, had unjustly and fraudulently, refused
to deliver certain articles consigned to the plaintiff. The Supreme Court of Spain held that this action was properly
under article 1902 of the Civil Code, the court saying:

Considerando que la sentencia discutida reconoce, en virtud de los hechos que consigna con relacion a las
pruebas del pleito: 1.º, que las expediciones facturadas por la compañia ferroviaria a la consignacion del
actor de las vasijas vacias que en su demanda relacionan tenian como fin el que este las devolviera a sus
remitentes con vinos y alcoholes; 2.º, que llegadas a su destino tales mercanias no se quisieron entregar a
dicho consignatario por el jefe de la estacion sin motivo justificado y con intencion dolosa, y 3.º, que la falta
de entrega de estas expediciones al tiempo de reclamarlas el demandante le originaron daños y perjuicios en
cantidad de bastante importancia como expendedor al por mayor que era de vinos y alcoholes por las
ganancias que dejo de obtener al verse privado de servir los pedidos que se le habian hecho por los
remitentes en los envases:

Considerando que sobre esta base hay necesidad de estimar los cuatro motivos que integran este recurso,
porque la demanda inicial del pleito a que se contrae no contiene accion que nazca del incumplimiento del
contrato de transporte, toda vez que no se funda en el retraso de la llegada de las mercancias ni de ningun
otro vinculo contractual entre las partes contendientes, careciendo, por tanto, de aplicacion el articulo 371
del Codigo de Comercio, en que principalmente descansa el fallo recurrido, sino que se limita a pedir la
reparaction de los daños y perjuicios producidos en el patrimonio del actor por la injustificada y dolosa
negativa del porteador a la entrega de las mercancias a su nombre consignadas, segun lo reconoce la
sentencia, y cuya responsabilidad esta claramente sancionada en el articulo 1902 del Codigo Civil, que obliga
por el siguiente a la Compañia demandada como ligada con el causante de aquellos por relaciones de
caracter economico y de jurarquia administrativa.

Considering that the sentence, in question recognizes, in virtue of the facts which it declares, in relation to
the evidence in the case: (1) that the invoice issued by the railroad company in favor of the plaintiff
contemplated that the empty receptacles referred to in the complaint should be returned to the consignors
with wines and liquors; (2) that when the said merchandise reached their destination, their delivery to the
consignee was refused by the station agent without justification and with fraudulent intent, and (3) that the
lack of delivery of these goods when they were demanded by the plaintiff caused him losses and damages of
considerable importance, as he was a wholesale vendor of wines and liquors and he failed to realize the
profits when he was unable to fill the orders sent to him by the consignors of the receptacles:

Considering that upon this basis there is need of upholding the four assignments of error, as the original
complaint did not contain any cause of action arising from non-fulfillment of a contract of transportation,
because the action was not based on the delay of the goods nor on any contractual relation between the
parties litigant and, therefore, article 371 of the Code of Commerce, on which the decision appealed from is
based, is not applicable; but it limits to asking for reparation for losses and damages produced on the
patrimony of the plaintiff on account of the unjustified and fraudulent refusal of the carrier to deliver the
 goods consigned to the plaintiff as stated by the sentence, and the carrier's responsibility is clearly laid down
in article 1902 of the Civil Code which binds, in virtue of the next article, the defendant company, because the
latter is connected with the person who caused the damage by relations of economic character and by
administrative hierarchy. (Emphasis supplied.)

The above case is pertinent because it shows that the same act may come under both the Penal Code and the Civil
Code. In that case, the action of the agent was unjustified and fraudulent and therefore could have been the subject
of a criminal action. And yet, it was held to be also a proper subject of a civil action under article 1902 of the Civil
Code. It is also to be noted that it was the employer and not the employee who was being sued.

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

In the leading case of Rakes vs. Atlantic Gulf and Pacific Co. (7 Phil., 359, 362-365 [year 1907]), the trial court
awarded damages to the plaintiff, a laborer of the defendant, because the latter had negligently failed to repair a
tramway in consequence of which the rails slid off while iron was being transported, and caught the plaintiff whose
leg was broken. This Court held:

It is contended by the defendant, as its first defense to the action that the necessary conclusion from these
collated laws is that the remedy for injuries through negligence lies only in a criminal action in which the
official criminally responsible must be made primarily liable and his employer held only subsidiarily to him.
According to this theory the plaintiff should have procured the arrest of the representative of the company
accountable for not repairing the track, and on his prosecution a suitable fine should have been imposed,
payable primarily by him and secondarily by his employer.

This reasoning misconceived the plan of the Spanish codes upon this subject. Article 1093 of the Civil Code
makes obligations arising from faults or negligence not punished by the law, subject to the provisions of
Chapter II of Title XVI. Section 1902 of that chapter reads:

"A person who by an act or omission causes damage to another when there is fault or negligence
shall be obliged to repair the damage so done.

"SEC. 1903. The obligation imposed by the preceeding article is demandable, not only for personal
acts and omissions, but also for those of the persons for whom they should be responsible.

"The father, and on his death or incapacity, the mother, is liable for the damages caused by the
minors who live with them.

xxx xxx xxx

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

xxx xxx xxx

"The liability referred to in this article shall cease when the persons mentioned therein prove that
they employed all the diligence of a good father of a family to avoid the damage."

As an answer to the argument urged in this particular action it may be sufficient to point out that nowhere in
our general statutes is the employer penalized for failure to provide or maintain safe appliances for his
workmen. His obligation therefore is one 'not punished by the laws' and falls under civil rather than criminal
jurisprudence. But the answer may be a broader one. We should be reluctant, under any conditions, to adopt
a forced construction of these scientific codes, such as is proposed by the defendant, that would rob some of
these articles of effect, would shut out litigants against their will from the civil courts, would make the
assertion of their rights dependent upon the selection for prosecution of the proper criminal offender, and
render recovery doubtful by reason of the strict rules of proof prevailing in criminal actions. Even if these
articles had always stood alone, such a construction would be unnecessary, but clear light is thrown upon
their meaning by the provisions of the Law of Criminal Procedure of Spain (Ley de Enjuiciamiento Criminal),
which, though never in actual force in these Islands, was formerly given a suppletory or explanatory effect.
Under article 111 of this law, both classes of action, civil and criminal, might be prosecuted jointly or
separately, but while the penal action was pending the civil was suspended. According to article 112, the
 penal action once started, the civil remedy should be sought therewith, unless it had been waived by the
party injured or been expressly reserved by him for civil proceedings for the future. If the civil action alone
was prosecuted, arising out of a crime that could be enforced only on private complaint, the penal action
thereunder should be extinguished. These provisions are in harmony with those of articles 23 and 133 of our
Penal Code on the same subject.

An examination of this topic might be carried much further, but the citation of these articles suffices to show
that the civil liability was not intended to be merged in the criminal nor even to be suspended thereby,
except as expressly provided in the law. Where an individual is civilly liable for a negligent act or omission, it
is not required that the injured party should seek out a third person criminally liable whose prosecution must
be a condition precedent to the enforcement of the civil right.

Under article 20 of the Penal Code the responsibility of an employer may be regarded as subsidiary in respect
of criminal actions against his employees only while they are in process of prosecution, or in so far as they
determine the existence of the criminal act from which liability arises, and his obligation under the civil law
and its enforcement in the civil courts is not barred thereby unless by the election of the injured person.
Inasmuch as no criminal proceeding had been instituted, growing our of the accident in question, the
provisions of the Penal Code can not affect this action. This construction renders it unnecessary to finally
determine here whether this subsidiary civil liability in penal actions has survived the laws that fully
regulated it or has been abrogated by the American civil and criminal procedure now in force in the
Philippines.

The difficulty in construing the articles of the code above cited in this case appears from the briefs before us
to have arisen from the interpretation of the words of article 1093, "fault or negligence not punished by law,"
as applied to the comprehensive definition of offenses in articles 568 and 590 of the Penal Code. It has been
shown that the liability of an employer arising out of his relation to his employee who is the offender is not
to be regarded as derived from negligence punished by the law, within the meaning of articles 1902 and
1093. More than this, however, it cannot be said to fall within the class of acts unpunished by the law, the
consequence of which are regulated by articles 1902 and 1903 of the Civil Code. The acts to which these
articles are applicable are understood to be those not growing out of pre-existing duties of the parties to one
another. But where relations already formed give rise to duties, whether springing from contract or quasi
contract, then breaches of those duties are subject to articles 1101, 1103, and 1104 of the same code. A
typical application of this distinction may be found in the consequences of a railway accident due to defective
machinery supplied by the employer. His liability to his employee would arise out of the contract of
employment, that to the passengers out of the contract for passage, while that to the injured bystander
would originate in the negligent act itself.

In Manzanares vs. Moreta, 38 Phil., 821 (year 1918), the mother of the 8 of 9-year-old child Salvador Bona brought a
civil action against Moreta to recover damages resulting from the death of the child, who had been run over by an
automobile driven and managed by the defendant. The trial court rendered judgment requiring the defendant to pay
the plaintiff the sum of P1,000 as indemnity: This Court in affirming the judgment, said in part:

If it were true that the defendant, in coming from the southern part of Solana Street, had to stop his auto
before crossing Real Street, because he had met vehicles which were going along the latter street or were
coming from the opposite direction along Solana Street, it is to be believed that, when he again started to
run his auto across said Real Street and to continue its way along Solana Street northward, he should have
adjusted the speed of the auto which he was operating until he had fully crossed Real Street and had
completely reached a clear way on Solana Street. But, as the child was run over by the auto precisely at the
entrance of Solana Street, this accident could not have occurred if the auto had been running at a slow
speed, aside from the fact that the defendant, at the moment of crossing Real Street and entering Solana
Street, in a northward direction, could have seen the child in the act of crossing the latter street from the
sidewalk on the right to that on the left, and if the accident had occurred in such a way that after the
automobile had run over the body of the child, and the child's body had already been stretched out on the
ground, the automobile still moved along a distance of about 2 meters, this circumstance shows the fact that
the automobile entered Solana Street from Real Street, at a high speed without the defendant having blown
the horn. If these precautions had been taken by the defendant, the deplorable accident which caused the
death of the child would not have occurred.
It will be noticed that the defendant in the above case could have been prosecuted in a criminal case because his
negligence causing the death of the child was punishable by the Penal Code. Here is therefore a clear instance of the
same act of negligence being a proper subject-matter either of a criminal action with its consequent civil liability
arising from a crime or of an entirely separate and independent civil action for fault or negligence under article 1902
of the Civil Code. Thus, in this jurisdiction, the separate individually of a cuasi-delito or culpa aquiliana under the Civil
Code has been fully and clearly recognized, even with regard to a negligent act for which the wrongdoer could have
been prosecuted and convicted in a criminal case and for which, after such a conviction, he could have been sued for
this civil liability arising from his crime.

Years later (in 1930) this Court had another occasion to apply the same doctrine. In Bernal and Enverso vs. House and
Tacloban Electric & Ice Plant, Ltd., 54 Phil., 327, the parents of the five-year-old child, Purificacion Bernal, brought a
civil action to recover damages for the child's death as a result of burns caused by the fault and negligence of the
defendants. On the evening of April 10, 1925, the Good Friday procession was held in Tacloban, Leyte. Fortunata
Enverso with her daughter Purificacion Bernal had come from another municipality to attend the same. After the
procession the mother and the daughter with two others were passing along Gran Capitan Street in front of the
offices of the Tacloban Electric & Ice Plant, Ltd., owned by defendants J. V. House, when an automobile appeared
from the opposite direction. The little girl, who was slightly ahead of the rest, was so frightened by the automobile
that she turned to run, but unfortunately she fell into the street gutter where hot water from the electric plant was
flowing. The child died that same night from the burns. The trial courts dismissed the action because of the
contributory negligence of the plaintiffs. But this Court held, on appeal, that there was no contributory negligence,
and allowed the parents P1,000 in damages from J. V. House who at the time of the tragic occurrence was the holder
of the franchise for the electric plant. This Court said in part:

Although the trial judge made the findings of fact hereinbefore outlined, he nevertheless was led to order
the dismissal of the action because of the contributory negligence of the plaintiffs. It is from this point that a
majority of the court depart from the stand taken by the trial judge. The mother and her child had a perfect
right to be on the principal street of Tacloban, Leyte, on the evening when the religious procession was held.
There was nothing abnormal in allowing the child to run along a few paces in advance of the mother. No one
could foresee the coincidence of an automobile appearing and of a frightened child running and falling into a
ditch filled with hot water. The doctrine announced in the much debated case of Rakes vs. Atlantic Gulf and
Pacific Co. ([1907]), 7 Phil., 359), still rule. Article 1902 of the Civil Code must again be enforced. The
contributory negligence of the child and her mother, if any, does not operate as a bar to recovery, but in its
strictest sense could only result in reduction of the damages.

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

In Bahia vs. Litonjua and Leynes (30 Phil., 624 [year 1915), the action was for damages for the death of the plaintiff's
daughter alleged to have been caused by the negligence of the servant in driving an automobile over the child. It
appeared that the cause of the mishap was a defect in the steering gear. The defendant Leynes had rented the
automobile from the International Garage of Manila, to be used by him in carrying passengers during the fiesta of
Tuy, Batangas. Leynes was ordered by the lower court to pay P1,000 as damages to the plaintiff. On appeal this Court
reversed the judgment as to Leynes on the ground that he had shown that the exercised the care of a good father of
a family, thus overcoming the presumption of negligence under article 1903. This Court said:

As to selection, the defendant has clearly shown that he exercised the care and diligence of a good father of
a family. He obtained the machine from a reputable garage and it was, so far as appeared, in good condition.
The workmen were likewise selected from a standard garage, were duly licensed by the Government in their
particular calling, and apparently thoroughly competent. The machine had been used but a few hours when
the accident occurred and it is clear from the evidence that the defendant had no notice, either actual or
constructive, of the defective condition of the steering gear.

The legal aspect of the case was discussed by this Court thus:

Article 1903 of the Civil Code not only establishes liability in cases of negligence, but also provides when the
liability shall cease. It says:
 "The liability referred to in this article shall cease when the persons mentioned therein prove that
they employed all the diligence of a good father of a family to avoid the damage."

From this article two things are apparent: (1) That when an injury is caused by the negligence of a servant or
employee there instantly arises a presumption of law that there was negligence on the part of the matter or
employer either in the selection of the servant or employee, or in supervision over him after the selection, or
both; and (2) that presumption is juris tantum and not juris et de jure, and consequently, may be rebutted. It
follows necessarily that if the employer shows to the satisfaction of the court that in selection and
supervision he has exercised the care and diligence of a good father of a family, the presumption is overcome
and he is relieve from liability.

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

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

The master is liable for the negligent acts of his servant where he is the owner or director of a business or
enterprise and the negligent acts are committed while the servant is engaged in his master's employment as
such owner.

Another case which followed the decision in Bahia vs. Litonjua and Leynes was Cuison vs. Norton & Harrison Co., 55
Phil., 18 (year 1930). The latter case was an action for damages brought by Cuison for the death of his seven-year-old
son Moises. The little boy was on his way to school with his sister Marciana. Some large pieces of lumber fell from a
truck and pinned the boy underneath, instantly killing him. Two youths, Telesforo Binoya and Francisco Bautista, who
were working for Ora, an employee of defendant Norton & Harrison Co., pleaded guilty to the crime of homicide
through reckless negligence and were sentenced accordingly. This Court, applying articles 1902 and 1903, held:

The basis of civil law liability is not respondent superior but the relationship of pater familias. This theory
bases the liability of the master ultimately on his own negligence and not on that of his servant.
(Bahia vs.Litonjua and Leynes [1915], 30 Phil., 624; Cangco vs. Manila Railroad Co. [1918], 38 Phil., 768.)

In Walter A. Smith & Co. vs. Cadwallader Gibson Lumber Co., 55 Phil., 517 (year 1930) the plaintiff brought an action
for damages for the demolition of its wharf, which had been struck by the steamer Helen C belonging to the
defendant. This Court held (p. 526):

The evidence shows that Captain Lasa at the time the plaintiff's wharf collapsed was a duly licensed captain,
authorized to navigate and direct a vessel of any tonnage, and that the appellee contracted his services
because of his reputation as a captain, according to F. C. Cadwallader. This being so, we are of the opinion
that the presumption of liability against the defendant has been overcome by the exercise of the care and
diligence of a good father of a family in selecting Captain Lasa, in accordance with the doctrines laid down by
this court in the cases cited above, and the defendant is therefore absolved from all liability.

It is, therefore, seen that the defendant's theory about his secondary liability is negatived by the six cases above set
forth. He is, on the authority of these cases, primarily and directly responsible in damages under article 1903, in
relation to article 1902, of the Civil Code.

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

xxx xxx xxx

Our deduction, therefore, is that the case relates to the Penal Code and not to the Civil Code. Indeed, as
pointed out by the trial judge, any different ruling would permit the master to escape scot-free by simply
alleging and proving that the master had exercised all diligence in the selection and training of its servants to
prevent the damage. That would be a good defense to a strictly civil action, but might or might not be to a
civil action either as a part of or predicated on conviction for a crime or misdemeanor. (By way of
parenthesis, it may be said further that the statements here made are offered to meet the argument
advanced during our deliberations to the effect that article 0902 of the Civil Code should be disregarded and
codal articles 1093 and 1903 applied.)

It is not clear how the above case could support the defendant's proposition, because the Court of Appeals based its
decision in the present case on the defendant's primary responsibility under article 1903 of the Civil Code and not on
his subsidiary liability arising from Fontanilla's criminal negligence. In other words, the case of City of Manila vs.
Manila Electric Co., supra, is predicated on an entirely different theory, which is the subsidiary liability of an employer
arising from a criminal act of his employee, whereas the foundation of the decision of the Court of Appeals in the
present case is the employer's primary liability under article 1903 of the Civil Code. We have already seen that this is
a proper and independent remedy.

Arambulo vs. Manila Electric Co. (55 Phil., 75), is another case invoked by the defendant. A motorman in the employ
of the Manila Electric Company had been convicted o homicide by simple negligence and sentenced, among other
things, to pay the heirs of the deceased the sum of P1,000. An action was then brought to enforce the subsidiary
liability of the defendant as employer under the Penal Code. The defendant attempted to show that it had exercised
the diligence of a good father of a family in selecting the motorman, and therefore claimed exemption from civil
liability. But this Court held:

In view of the foregoing considerations, we are of opinion and so hold, (1) that the exemption from civil
liability established in article 1903 of the Civil Code for all who have acted with the diligence of a good father
of a family, is not applicable to the subsidiary civil liability provided in article 20 of the Penal Code.

The above case is also extraneous to the theory of the defendant in the instant case, because the action there had for
its purpose the enforcement of the defendant's subsidiary liability under the Penal Code, while in the case at bar, the
plaintiff's cause of action is based on the defendant's primary and direct responsibility under article 1903 of the Civil
Code. In fact, the above case destroys the defendant's contention because that decision illustrates the principle that
the employer's primary responsibility under article 1903 of the Civil Code is different in character from his subsidiary
liability under the Penal Code.

In trying to apply the two cases just referred to, counsel for the defendant has failed to recognize the distinction
between civil liability arising from a crime, which is governed by the Penal Code, and the responsibility for cuasi-
delito or culpa aquiliana under the Civil Code, and has likewise failed to give the importance to the latter type of civil
action.

The defendant-petitioner also cites Francisco vs. Onrubia (46 Phil., 327). That case need not be set forth. Suffice it to
say that the question involved was also civil liability arising from a crime. Hence, it is as inapplicable as the two cases
above discussed.

The foregoing authorities clearly demonstrate the separate individuality of cuasi-delitos or culpa aquiliana under the
Civil Code. Specifically they show that there is a distinction between civil liability arising from criminal negligence
(governed by the Penal Code) and responsibility for fault or negligence under articles 1902 to 1910 of the Civil Code,
and that the same negligent act may produce either a civil liability arising from a crime under the Penal Code, or a
separate responsibility for fault or negligence under articles 1902 to 1910 of the Civil Code. Still more concretely, the
authorities above cited render it inescapable to conclude that the employer — in this case the defendant-petitioner
— is primarily and directly liable under article 1903 of the Civil Code.

The legal provisions, authors, and cases already invoked should ordinarily be sufficient to dispose of this case. But
inasmuch as we are announcing doctrines that have been little understood in the past, it might not be inappropriate
to indicate their foundations.

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

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

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

At this juncture, it should be said that the primary and direct responsibility of employers and their presumed
negligence are principles calculated to protect society. Workmen and employees should be carefully chosen and
supervised in order to avoid injury to the public. It is the masters or employers who principally reap the profits
resulting from the services of these servants and employees. It is but right that they should guarantee the latter's
careful conduct for the personnel and patrimonial safety of others. As Theilhard has said, "they should reproach
themselves, at least, some for their weakness, others for their poor selection and all for their negligence." And
according to Manresa, "It is much more equitable and just that such responsibility should fall upon the principal or
director who could have chosen a careful and prudent employee, and not upon the injured person who could not
exercise such selection and who used such employee because of his confidence in the principal or director." (Vol. 12,
p. 622, 2nd Ed.) Many jurists also base this primary responsibility of the employer on the principle of representation
of the principal by the agent. Thus, Oyuelos says in the work already cited (Vol. 7, p. 747) that before third persons
the employer and employee "vienen a ser como una sola personalidad, por refundicion de la del dependiente en la
de quien le emplea y utiliza." ("become as one personality by the merging of the person of the employee in that of
him who employs and utilizes him.") All these observations acquire a peculiar force and significance when it comes to
motor accidents, and there is need of stressing and accentuating the responsibility of owners of motor vehicles.

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

In view of the foregoing, the judgment of the Court of Appeals should be and is hereby affirmed, with costs against
the defendant-petitioner.

PEDRO and PATRICIA ELCANO, as Ascendants of Agapito Elcano vs. REGINALD HILL, minor, and MARVIN HILL, as
father and Natural Guardian of said minor [G.R. No. L-24803 May 26, 1977]

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

Actually, the motion to dismiss based on the following grounds:

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

2. The action is barred by a prior judgment which is now final and or in res-adjudicata;

3. The complaint had no cause of action against defendant Marvin Hill, because he was relieved as
guardian of the other defendant through emancipation by marriage.

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

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

Considering the motion for reconsideration filed by the defendants on January 14, 1965 and after
thoroughly examining the arguments therein contained, the Court finds the same to be meritorious
and well-founded.

WHEREFORE, the Order of this Court on December 8, 1964 is hereby reconsidered by ordering the
dismissal of the above entitled case.

SO ORDERED.

Quezon City, Philippines, January 29, 1965. (p. 40, Record [p. 21, Record on Appeal.)

Hence, this appeal where plaintiffs-appellants, the spouses Elcano, are presenting for Our resolution the following
assignment of errors:

THE LOWER COURT ERRED IN DISMISSING THE CASE BY UPHOLDING THE CLAIM OF DEFENDANTS THAT:

I. THE PRESENT ACTION IS NOT ONLY AGAINST BUT ALSO A VIOLATION OF SECTION 1, RULE 107, NOW
RULE 111, OF THE REVISED RULES OF COURT, AND THAT SECTION 3(c) OF RULE 111, RULES OF COURT IS
APPLICABLE;

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

III. THE PRINCIPLES OF QUASI-DELICTS, ARTICLES 2176 TO 2194 OF THE CIVIL CODE, ARE INAPPLICABLE
IN THE INSTANT CASE; and

IV. THAT THE COMPLAINT STATES NO CAUSE OF ACTION AGAINST DEFENDANT MARVIN HILL BECAUSE
HE WAS RELIEVED AS GUARDIAN OF THE OTHER DEFENDANT THROUGH EMANCIPATION BY MARRIAGE.
(page 4, Record.)

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

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

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

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

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

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

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

The legal provisions, authors, and cases already invoked should ordinarily be sufficient to dispose of
this case. But inasmuch as we are announcing doctrines that have been little understood, in the past,
it might not he inappropriate to indicate their foundations.

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

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

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

ART. 2177. Responsibility for fault or negligence under the preceding article is entirely separate and
distinct from the civil liability arising from negligence under the Penal Code. But the plaintiff cannot
recover damages twice for the same act or omission of the defendant.

According to the Code Commission: "The foregoing provision (Article 2177) through at first sight startling, is not so
novel or extraordinary when we consider the exact nature of criminal and civil negligence. The former is a violation of
the criminal law, while the latter is a "culpa aquiliana" or quasi-delict, of ancient origin, having always had its own
foundation and individuality, separate from criminal negligence. Such distinction between criminal negligence and
"culpa extracontractual" or "cuasi-delito" has been sustained by decision of the Supreme Court of Spain and
maintained as clear, sound and perfectly tenable by Maura, an outstanding Spanish jurist. Therefore, under the
proposed Article 2177, acquittal from an accusation of criminal negligence, whether on reasonable doubt or not,
shall not be a bar to a subsequent civil action, not for civil liability arising from criminal negligence, but for damages
due to a quasi-delict or 'culpa aquiliana'. But said article forestalls a double recovery.", (Report of the Code)
Commission, p. 162.)

Although, again, this Article 2177 does seem to literally refer to only acts of negligence, the same argument of Justice
Bacobo about construction that upholds "the spirit that giveth lift- rather than that which is literal that killeth the
intent of the lawmaker should be observed in applying the same. And considering that the preliminary chapter on
human relations of the new Civil Code definitely establishes the separability and independence of liability in a civil
action for acts criminal in character (under Articles 29 to 32) from the civil responsibility arising from crime fixed by
Article 100 of the Revised Penal Code, and, in a sense, the Rules of Court, under Sections 2 and 3 (c), Rule 111,
contemplate also the same separability, it is "more congruent with the spirit of law, equity and justice, and more in
harmony with modern progress"- to borrow the felicitous relevant language in Rakes vs. Atlantic. Gulf and Pacific Co.,
7 Phil. 359, to hold, as We do hold, that Article 2176, where it refers to "fault or negligencia covers not only acts "not
punishable by law" but also acts criminal in character, whether intentional and voluntary or negligent. Consequently,
a separate civil action lies against the offender in a criminal act, whether or not he is criminally prosecuted and found
guilty or acquitted, provided that the offended party is not allowed, if he is actually charged also criminally, to
recover damages on both scores, and would be entitled in such eventuality only to the bigger award of the two,
assuming the awards made in the two cases vary. In other words, the extinction of civil liability referred to in Par. (e)
of Section 3, Rule 111, refers exclusively to civil liability founded on Article 100 of the Revised Penal Code, whereas
the civil liability for the same act considered as a quasi-delict only and not as a crime is not estinguished even by a
declaration in the criminal case that the criminal act charged has not happened or has not been committed by the
accused. Briefly stated, We here hold, in reiteration of Garcia, that culpa aquiliana includes voluntary and negligent
acts which may be punishable by law. 4

It results, therefore, that the acquittal of Reginal Hill in the criminal case has not extinguished his liability for quasi-
delict, hence that acquittal is not a bar to the instant action against him.
Coming now to the second issue about the effect of Reginald's emancipation by marriage on the possible civil liability
of Atty. Hill, his father, it is also Our considered opinion that the conclusion of appellees that Atty. Hill is already free
from responsibility cannot be upheld.

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

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

It must be borne in mind that, according to Manresa, the reason behind the joint and solidary liability of presuncion
with their offending child under Article 2180 is that is the obligation of the parent to supervise their minor children in
order to prevent them from causing damage to third persons. 5 On the other hand, the clear implication of Article
399, in providing that a minor emancipated by marriage may not, nevertheless, sue or be sued without the
assistance of the parents, is that such emancipation does not carry with it freedom to enter into transactions or do
any act that can give rise to judicial litigation. (See Manresa, Id., Vol. II, pp. 766-767, 776.) And surely, killing someone
else invites judicial action. Otherwise stated, the marriage of a minor child does not relieve the parents of the duty to
see to it that the child, while still a minor, does not give answerable for the borrowings of money and alienation or
encumbering of real property which cannot be done by their minor married child without their consent. (Art. 399;
Manresa, supra.)

Accordingly, in Our considered view, Article 2180 applies to Atty. Hill notwithstanding the emancipation by marriage
of Reginald. However, inasmuch as it is evident that Reginald is now of age, as a matter of equity, the liability of Atty.
Hill has become milling, subsidiary to that of his son. WHEREFORE, the order appealed from is reversed and the trial
court is ordered to proceed in accordance with the foregoing opinion. Costs against appellees.

PORFIRIO CINCO vs. MATEO CANONOY; CFI-Cebu, LORENZO BARRIA City Judge-Mandaue City ROMEO HILOT,
VALERIANA PEPITO and CARLOS PEPITO [G.R. No. L-33171 May 31, 1979]

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

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

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

(b) After a criminal action has been commenced. no civil action arising from the same offense can be
prosecuted, and the same shall be suspended, in whatever stage it may be found, until final
judgment in the criminal proceeding has been rendered;

The City Court of Mandaue City in an Order dated August 11, 1970, ordered the suspension of the civil case.
Petitioner's Motion for Reconsideration thereof, having been denied on August 25, 1970, 1 petitioner elevated the
matter on certiorari to the Court of First Instance of Cebu, respondent Judge presiding, on September 11, 1970,
alleging that the City Judge had acted with grave abuse of discretion in suspending the civil action for being contrary
to law and jurisprudence. 2
On November 5, 1970, respondent Judge dismissed the Petition for certiorari on the ground that there was no grave
abuse of discretion on the part of the City Court in suspending the civil action inasmuch as damage to property is not
one of the instances when an independent civil action is proper; that petitioner has another plain, speedy, and
adequate remedy under the law, which is to submit his claim for damages in the criminal case; that the resolution of
the City Court is interlocutory and, therefore, certiorari is improper; and that the Petition is defective inasmuch as
what petitioner actually desires is a Writ of mandamus (Annex "R"). Petitioner's Motion for Reconsideration was
denied by respondent Judge in an Order dated November 14,1970 (Annex "S" and Annex "U").

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

Petitioner makes these:

ASSIGNMENTS OF ERROR

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

2. THAT THE COURT ERRED IN HOLDING THAT IN ORDER TO AVOID DELAY THE OFFENDED PARTY MAY
SUBMIT HIS CLAIM FOR DAMAGES IN THE CRIMINAL CASE.

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

4. THAT THE COURT ERRED IN HOLDING THAT THE PETITION IS DEFECTIVE. 4

all of which can be synthesized into one decisive issue: whether or not there can be an independent civil action for
damage to property during the pendency of the criminal action.

From the Complaint filed by petitioner before the City Court of Mandaue City, Cebu, it is evident that the nature and
character of his action was quasi-delictual predicated principally on Articles 2176 and 2180 of the Civil Code, which
provide:

Art. 2176. Whoever by act or omission causes damage to another, there being fault or negligence is
obliged to pay for the damage done. Such fault or negligence, if there is no pre-existing contractual
relation between the parties, is caned a quasi-delict and is governed by the provisions of this
Chapter. (1902a)

Art. 2180. The obligation imposed by article 2176 is demandable not only for one's own acts or
omissions but also for those of persons for whom one is responsible.

xxx xxx xxx

Employers shall be liable for the damages cause by their employees and household helpers acting
within the scope of their assigned tasks, even though the former are not engaged in any business or
industry.

xxx xxx xxx

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

Thus, plaintiff made the essential averments that it was the fault or negligence of the driver, Romeo Hilot, in the
operation of the jeepney owned by the Pepitos which caused the collision between his automobile and said jeepney;
that damages were sustained by petitioner because of the collision; that there was a direct causal connection
between the damages he suffered and the fault and negligence of private respondents.

Similarly, in the Answer, private respondents contended, among others, that defendant, Valeriana Pepito, observed
due diligence in the selection and supervision of her employees, particularly of her co-defendant Romeo Hilot, a
defense peculiar to actions based on quasi-delict. 5

Liability being predicated on quasi-delict the civil case may proceed as a separate and independent civil action, as
specifically provided for in Article 2177 of the Civil Code.
Art. 2177. Responsibility for fault or negligence under the preceding article is entirely separate and
distinct from the civil liability arising from negligence under the Penal Code. But the plaintiff cannot
recover damages twice for the same act or omission of the defendant. (n)

The crucial distinction between criminal negligence and quasi-delict, which is readily discernible from
the foregoing codal provision, has been expounded in Barredo vs. Garcia, et al., 73 Phil. 607, 620-
621, 6 thus:

Firstly, the Revised Penal Code in article 365 punishes not only reckless but also simple imprudence.
if we were to hold that articles 1902 to 1910 of the Civil Code refer only to fault or negligence not
punished by law, according to the literal import of article 1093 of the Civil Code, the legal institution
of culpa aquiliana would have very little scope and application in actual life. Death or injury to
persons and damage to property through any degree of negligence — even the slightest would have
to be indemnified only through the principle of civil hability arising from crime. In such a state of
affairs, what sphere would remain for quasidelito or culpa aquiliana We are loath to impute to the
lawmaker any intention to bring about a situation so absurd and anomalous. Nor are we, in the
interpretation of the laws, disposed to uphold the letter that killeth rather than the spirit that giveth
life. We will not use the literal meaning of the law to smother and render almost lifeless a principle of
such ancient origin and such full-grown development as culpa aquiliana or quasi-delito, which is
conserved and made enduring in articles 1902 to 11910 of the Spanish Civil Code.

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

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

At this juncture, it should be said that the primary and direct responsibility of employers and their
presumed negligence are principles calculated to protect society. Workmen and employees should
be carefully chosen and supervised in order to avoid injury to the public. It is the masters or
employers who principally reap the profits resulting from the services of these servants and
employees. It is but right that they should guarantee the latter's careful conduct for the personnel
and patrimonial safety of others. As Theilhard has said, "they should reproach themselves, at least,
some for their weakness, others for their poor selection and all for their negligence." And according
to Manresa, "It is much more equitable and just that such responsibility should fail upon the
principal or director who could have chosen a careful and prudent employee, and not upon the such
employee because of his confidence in the principal or director." (Vol. 12, p. 622, 2nd Ed.) Many
jurists also base this primary responsibility of the employer on the principle of representation of the
principal by the agent. Thus, Oyuelos says in the work already cited (Vol. 7, p. 747) that before third
persons the employer and employee vienen a ser como una sola personalidad, por refundicion de la
del dependiente en la de quien la emplea y utihza (become as one personality by the merging of the
person of the employee in that of him who employs and utilizes him.) All these observations acquire
a peculiar force and significance when it comes to motor accidents, and there is need of stressing
and accentuating the responsibility of owners of motor vehicles.
 Fourthly, because of the broad sweep of the provisions of both the Penal Code and the Civil Code on
this subject, which has given rise to overlapping or concurrence of spheres already discussed, and for
lack of understanding of the character and efficacy of the action for culpaaquiliana there has grown
up a common practice to seek damages only by virtue of the Civil responsibility arising from crime,
forgetting that there is another remedy, which is by invoking articles 1902-1910 of the Civil Code.
Although this habitual method is allowed by our laws, it has nevertheless rendered practically
useless and nugatory the more expeditious and effective remedy based on culpa aquiliana or culpa
extra-contractual. In the present case, we are asked to help perpetuate this usual course. But we
believe it is high time we pointed out to the harm done by such practice and to restore the principle
of responsibility for fault or negligence under articles 1902 et seq. of the Civil Code to its full rigor. It
is high time we cause the stream of quasi-delict or culpa aquiliana to flow on its own natural channel,
so that its waters may no longer be diverted into that of a crime under the Penal Code. This will, it is
believed, make for the bet ter safeguarding of private rights because it re-establishes an ancient and
additional remedy, and for the further reason that an independent civil action, not depending on the
issues, stations and results of a criminal prosecution, and entirely directed by the party wronged or
his counsel is more likely to secure adequate and efficacious redress. (Garcia vs. Florida 52 SCRA 420,
424-425, Aug. 31, 1973). (Emphasis supplied)

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

Sec. 2. Independent civil action. — In the cases provided for in Articles 31, 32, 33, 34 and 2177 of the
Civil Code of the Philippines, Are independent civil action entirely separate and distinct from the c
action, may be brought by the injured party during the pendency of the criminal case, provided the
right is reserved as required in the preceding section. Such civil action shag proceed independently
of the criminal prosecution, and shall require only a preponderance of evidence.

Significant to note is the fact that the foregoing section categorically lists cases provided for in Article 2177 of the Civil
Code, supra, as allowing of an "independent civil action."

Tested by the hereinabove-quoted legal tenets, it has to be held that the City Court, in surrounding the civil action,
erred in placing reliance on section 3 (b) of Rule 111 of the Rules of Court, supra which refers to "other civil actions
arising from cases not included in the section just cited" (i.e., Section 2, Rule 111 above quoted), in which case 6 once
the criminal action has being commenced, no civil action arising from the same offense can be prosecuted and the
same shall be suspended in whatever stage it may be found, until final judgment in the criminal proceeding has been
rendered." Stated otherwise, the civil action referred to in Secs. 3(a) and 3(b) of Rule 111 of the Rules of Court, which
should be suspended after the criminal action has been instituted is that arising from the criminal offense not the
civil action based on quasi-delict

Article 31 of the Civil Code then clearly assumes relevance when it provides:

Art. 31. When the civil action is based on an obligation not arising from the act or omission
complained of as a felony, such civil action may proceed independently of the criminal proceedings
and regardless of the result of the latter.

For obviously, the jural concept of a quasi-delict is that of an independent source of obligation "not arising from the
act or omission complained of as a felony." Article 1157 of the Civil Code bolsters this conclusion when it specifically
recognizes that:

Art. 1157. Obligations arise from:

(1) Law;

(2) Contracts;

(3) Quasi-contracts;

(4) Acts or omissions punished by law; and

(5) Quasi-delicts. (1089a)

 (Emphasis supplied)

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

In the light of the foregoing disquisition, we are constrained to hold that respondent Judge gravely abused his
discretion in upholding the Decision of the City Court of Mandaue City, Cebu, suspending the civil action based on
a quasi-delict until after the criminal case is finally terminated. Having arrived at this conclusion, a discussion of the
other errors assigned becomes unnecessary.

WHEREFORE, granting the Writ of certiorari prayed for, the Decision of the Court of First Instance of Cebu sought to
be reviewed is hereby set aside, and the City Court of Mandaue City, Cebu, Branch 11, is hereby ordered to proceed
with the hearing of Civil Case No. 189 of that Court.

Without pronouncement as to costs.

SO ORDERED.

GASHEM SHOOKAT BAKSH vs. COURT OF APPEALS and MARILOU GONZALES [G.R. No. 97336 February 19, 1993]

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

The antecedents of this case are not complicated:

On 27 October 1987, private respondent, without the assistance of counsel, filed with the aforesaid trial court a
complaint2 for damages against the petitioner for the alleged violation of their agreement to get married. She alleges
in said complaint that: she is twenty-two (22) years old, single, Filipino and a pretty lass of good moral character and
reputation duly respected in her community; petitioner, on the other hand, is an Iranian citizen residing at the Lozano
Apartments, Guilig, Dagupan City, and is an exchange student taking a medical course at the Lyceum Northwestern
Colleges in Dagupan City; before 20 August 1987, the latter courted and proposed to marry her; she accepted his love
on the condition that they would get married; they therefore agreed to get married after the end of the school
semester, which was in October of that year; petitioner then visited the private respondent's parents in Bañaga,
Bugallon, Pangasinan to secure their approval to the marriage; sometime in 20 August 1987, the petitioner forced her
to live with him in the Lozano Apartments; she was a virgin before she began living with him; a week before the filing
of the complaint, petitioner's attitude towards her started to change; he maltreated and threatened to kill her; as a
result of such maltreatment, she sustained injuries; during a confrontation with a representative of the barangay
captain of Guilig a day before the filing of the complaint, petitioner repudiated their marriage agreement and asked
her not to live with him anymore and; the petitioner is already married to someone living in Bacolod City. Private
respondent then prayed for judgment ordering the petitioner to pay her damages in the amount of not less than
P45,000.00, reimbursement for actual expenses amounting to P600.00, attorney's fees and costs, and granting her
such other relief and remedies as may be just and equitable. The complaint was docketed as Civil Case No. 16503.

In his Answer with Counterclaim, 3 petitioner admitted only the personal circumstances of the parties as averred in
the complaint and denied the rest of the allegations either for lack of knowledge or information sufficient to form a
belief as to the truth thereof or because the true facts are those alleged as his Special and Affirmative Defenses. He
thus claimed that he never proposed marriage to or agreed to be married with the private respondent; he neither
sought the consent and approval of her parents nor forced her to live in his apartment; he did not maltreat her, but
only told her to stop coming to his place because he discovered that she had deceived him by stealing his money and
passport; and finally, no confrontation took place with a representative of the barangay captain. Insisting, in his
Counterclaim, that the complaint is baseless and unfounded and that as a result thereof, he was unnecessarily
dragged into court and compelled to incur expenses, and has suffered mental anxiety and a besmirched reputation,
he prayed for an award of P5,000.00 for miscellaneous expenses and P25,000.00 as moral damages.

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

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

2. That the defendant is presently studying at Lyceum Northwestern, Dagupan City, College of
Medicine, second year medicine proper;

3. That the plaintiff is (sic) an employee at Mabuhay Luncheonette , Fernandez Avenue, Dagupan City
since July, 1986 up to the present and a (sic) high school graduate;

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

After trial on the merits, the lower court, applying Article 21 of the Civil Code, rendered on 16 October 1989 a
decision5 favoring the private respondent. The petitioner was thus ordered to pay the latter damages and attorney's
fees; the dispositive portion of the decision reads:

IN THE LIGHT of the foregoing consideration, judgment is hereby rendered in favor of the plaintiff
and against the defendant.

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

2. Condemning further the defendant to play the plaintiff the sum of three thousand (P3,000.00)
pesos as atty's fees and two thousand (P2,000.00) pesos at (sic) litigation expenses and to pay the
costs.

3. All other claims are denied.6

The decision is anchored on the trial court's findings and conclusions that (a) petitioner and private respondent were
lovers, (b) private respondent is not a woman of loose morals or questionable virtue who readily submits to sexual
advances, (c) petitioner, through machinations, deceit and false pretenses, promised to marry private respondent, d)
because of his persuasive promise to marry her, she allowed herself to be deflowered by him, (e) by reason of that
deceitful promise, private respondent and her parents — in accordance with Filipino customs and traditions — made
some preparations for the wedding that was to be held at the end of October 1987 by looking for pigs and chickens,
inviting friends and relatives and contracting sponsors, (f) petitioner did not fulfill his promise to marry her and (g)
such acts of the petitioner, who is a foreigner and who has abused Philippine hospitality, have offended our sense of
morality, good customs, culture and traditions. The trial court gave full credit to the private respondent's testimony
because, inter alia, she would not have had the temerity and courage to come to court and expose her honor and
reputation to public scrutiny and ridicule if her claim was false. 7
The above findings and conclusions were culled from the detailed summary of the evidence for the private
respondent in the foregoing decision, digested by the respondent Court as follows:

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

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

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

On 18 February 1991, respondent Court promulgated the challenged decision 10 affirming in toto the trial court's
ruling of 16 October 1989. In sustaining the trial court's findings of fact, respondent Court made the following
analysis:

First of all, plaintiff, then only 21 years old when she met defendant who was already 29 years old at
the time, does not appear to be a girl of loose morals. It is uncontradicted that she was a virgin prior
to her unfortunate experience with defendant and never had boyfriend. She is, as described by the
lower court, a barrio lass "not used and accustomed to trend of modern urban life", and certainly
would (sic) not have allowed
"herself to be deflowered by the defendant if there was no persuasive promise made by the
defendant to marry her." In fact, we agree with the lower court that plaintiff and defendant must
have been sweethearts or so the plaintiff must have thought because of the deception of defendant,
for otherwise, she would not have allowed herself to be photographed with defendant in public in so
(sic) loving and tender poses as those depicted in the pictures Exhs. "D" and "E". We cannot believe,
therefore, defendant's pretense that plaintiff was a nobody to him except a waitress at the
restaurant where he usually ate. Defendant in fact admitted that he went to plaintiff's hometown of
Bañaga, Bugallon, Pangasinan, at least thrice; at (sic) the town fiesta on February 27, 1987 (p. 54, tsn
May 18, 1988), at (sic) a beach party together with the manager and employees of the Mabuhay
Luncheonette on March 3, 1987 (p. 50, tsn id.), and on April 1, 1987 when he allegedly talked to
plaintiff's mother who told him to marry her daughter (pp. 55-56, tsn id.). Would defendant have left
Dagupan City where he was involved in the serious study of medicine to go to plaintiff's hometown in
Bañaga, Bugallon, unless there was (sic) some kind of special relationship between them? And this
 special relationship must indeed have led to defendant's insincere proposal of marriage to plaintiff,
communicated not only to her but also to her parents, and (sic) Marites Rabino, the owner of the
restaurant where plaintiff was working and where defendant first proposed marriage to her, also
knew of this love affair and defendant's proposal of marriage to plaintiff, which she declared was the
reason why plaintiff resigned from her job at the restaurant after she had accepted defendant's
proposal (pp. 6-7, tsn March 7, 1988).

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

and then concluded:

In sum, we are strongly convinced and so hold that it was defendant-appellant's fraudulent and
deceptive protestations of love for and promise to marry plaintiff that made her surrender her virtue
and womanhood to him and to live with him on the honest and sincere belief that he would keep
said promise, and it was likewise these (sic) fraud and deception on appellant's part that made
plaintiff's parents agree to their daughter's living-in with him preparatory to their supposed
marriage. And as these acts of appellant are palpably and undoubtedly against morals, good
customs, and public policy, and are even gravely and deeply derogatory and insulting to our women,
coming as they do from a foreigner who has been enjoying the hospitality of our people and taking
advantage of the opportunity to study in one of our institutions of learning, defendant-appellant
should indeed be made, under Art. 21 of the Civil Code of the Philippines, to compensate for the
moral damages and injury that he had caused plaintiff, as the lower court ordered him to do in its
decision in this case. 12

Unfazed by his second defeat, petitioner filed the instant petition on 26 March 1991; he raises therein the single
issue of whether or not Article 21 of the Civil Code applies to the case at bar. 13

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

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

As may be gleaned from the foregoing summation of the petitioner's arguments in support of his thesis, it is clear
that questions of fact, which boil down to the issue of the credibility of witnesses, are also raised. It is the rule in this
jurisdiction that appellate courts will not disturb the trial court's findings as to the credibility of witnesses, the latter
court having heard the witnesses and having had the opportunity to observe closely their deportment and manner of
testifying, unless the trial court had plainly overlooked facts of substance or value which, if considered, might affect
the result of the case. 15

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

Equally settled is the rule that only questions of law may be raised in a petition for review on certiorari under Rule 45
of the Rules of Court. It is not the function of this Court to analyze or weigh all over again the evidence introduced by
the parties before the lower court. There are, however, recognized exceptions to this rule. Thus, in Medina
vs.Asistio, Jr., 16 this Court took the time, again, to enumerate these exceptions:

xxx xxx xxx

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

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

And now to the legal issue.

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

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

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

As the Code Commission itself stated in its Report:

But the Code Commission had gone farther than the sphere of wrongs defined or determined by
positive law. Fully sensible that there are countless gaps in the statutes, which leave so many victims
of moral wrongs helpless, even though they have actually suffered material and moral injury, the
Commission has deemed it necessary, in the interest of justice, to incorporate in the proposed Civil
Code the following rule:

Art. 23. Any person who wilfully causes loss or injury to another in a manner that is
contrary to morals, good customs or public policy shall compensate the latter for the
damage.
 An example will illustrate the purview of the foregoing norm: "A" seduces the nineteen-year old
daughter of "X". A promise of marriage either has not been made, or can not be proved. The girl
becomes pregnant. Under the present laws, there is no crime, as the girl is above nineteen years of
age. Neither can any civil action for breach of promise of marriage be filed. Therefore, though the
grievous moral wrong has been committed, and though the girl and family have suffered incalculable
moral damage, she and her parents cannot bring action for damages. But under the proposed article,
she and her parents would have such a right of action.

Thus at one stroke, the legislator, if the forgoing rule is approved, would vouchsafe adequate legal
remedy for that untold number of moral wrongs which it is impossible for human foresight to
provide for specifically in the statutes. 21

Article 2176 of the Civil Code, which defines a quasi-delict thus:

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

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

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

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

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

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

In Tanjanco vs. Court of Appeals, 26 while this Court likewise hinted at possible recovery if there had been moral
seduction, recovery was eventually denied because We were not convinced that such seduction existed. The
following enlightening disquisition and conclusion were made in the said case:

The Court of Appeals seem to have overlooked that the example set forth in the Code Commission's
memorandum refers to a tort upon a minor who had been seduced. The essential feature is
seduction, that in law is more than mere sexual intercourse, or a breach of a promise of marriage; it
connotes essentially the idea of deceit, enticement, superior power or abuse of confidence on the
part of the seducer to which the woman has yielded (U.S. vs. Buenaventura, 27 Phil. 121; U.S. vs.
Arlante, 9 Phil. 595).

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

To constitute seduction there must in all cases be some sufficient promise or

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

And in American Jurisprudence we find:

On the other hand, in an action by the woman, the enticement, persuasion or

deception is the essence of the injury; and a mere proof of intercourse is insufficient
to warrant a recovery.

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

xxx xxx xxx

Over and above the partisan allegations, the fact stand out that for one whole year, from 1958 to
1959, the plaintiff-appellee, a woman of adult age, maintain intimate sexual relations with appellant,
with repeated acts of intercourse. Such conduct is incompatible with the idea of seduction. Plainly
there is here voluntariness and mutual passion; for had the appellant been deceived, had she
surrendered exclusively because of the deceit, artful persuasions and wiles of the defendant, she
would not have again yielded to his embraces, much less for one year, without exacting early
fulfillment of the alleged promises of marriage, and would have cut short all sexual relations upon
finding that defendant did not intend to fulfill his defendant did not intend to fulfill his promise.
Hence, we conclude that no case is made under article 21 of the Civil Code, and no other cause of
action being alleged, no error was committed by the Court of First Instance in dismissing the
complaint. 27

In his annotations on the Civil Code, 28 Associate Justice Edgardo L. Paras, who recently retired from this Court,
opined that in a breach of promise to marry where there had been carnal knowledge, moral damages may be
recovered:

. . . if there be criminal or moral seduction, but not if the intercourse was due to mutual lust.
(Hermosisima vs. Court of Appeals,
L-14628, Sept. 30, 1960; Estopa vs. Piansay, Jr., L-14733, Sept. 30, 1960; Batarra vs. Marcos, 7 Phil. 56
(sic); Beatriz Galang vs. Court of Appeals, et al., L-17248, Jan. 29, 1962). (In other words, if the CAUSE
 be the promise to marry, and the EFFECT be the carnal knowledge, there is a chance that there
was criminal or moral seduction, hence recovery of moral damages will prosper. If it be the other way
around, there can be no recovery of moral damages, because here mutual lust has intervened). . . .

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

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

It is submitted that the rule in Batarra vs. Marcos, 30 still subsists, notwithstanding the incorporation
of the present article31 in the Code. The example given by the Code Commission is correct, if there
was seduction, not necessarily in the legal sense, but in the vulgar sense of deception. But when the
sexual act is accomplished without any deceit or qualifying circumstance of abuse of authority or
influence, but the woman, already of age, has knowingly given herself to a man, it cannot be said
that there is an injury which can be the basis for indemnity.

But so long as there is fraud, which is characterized by willfulness (sic), the action lies. The court,
however, must weigh the degree of fraud, if it is sufficient to deceive the woman under the
circumstances, because an act which would deceive a girl sixteen years of age may not constitute
deceit as to an experienced woman thirty years of age. But so long as there is a wrongful act and a
resulting injury, there should be civil liability, even if the act is not punishable under the criminal law
and there should have been an acquittal or dismissal of the criminal case for that reason.

We are unable to agree with the petitioner's alternative proposition to the effect that granting, for argument's sake,
that he did promise to marry the private respondent, the latter is nevertheless also at fault. According to him, both
parties are in pari delicto; hence, pursuant to Article 1412(1) of the Civil Code and the doctrine laid down in Batarra
vs. Marcos, 32 the private respondent cannot recover damages from the petitioner. The latter even goes as far as
stating that if the private respondent had "sustained any injury or damage in their relationship, it is primarily because
of her own doing, 33 for:

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

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

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

The pari delicto rule does not apply in this case for while indeed, the private respondent may not have been impelled
by the purest of intentions, she eventually submitted to the petitioner in sexual congress not out of lust, but because
of moral seduction. In fact, it is apparent that she had qualms of conscience about the entire episode for as soon as
she found out that the petitioner was not going to marry her after all, she left him. She is not, therefore, in pari
delicto with the petitioner. Pari delicto means "in equal fault; in a similar offense or crime; equal in guilt or in legal
fault." 35At most, it could be conceded that she is merely in delicto.
 Equity often interferes for the relief of the less guilty of the parties, where his transgression has been
brought about by the imposition of undue influence of the party on whom the burden of the original
wrong principally rests, or where his consent to the transaction was itself procured by
fraud. 36

In Mangayao vs. Lasud, 37 We declared:

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

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

WHEREFORE, finding no reversible error in the challenged decision, the instant petition is hereby DENIED, with costs
against the petitioner.

SO ORDERED.

MARIA BENITA DULAY, in her own behalf and in behalf of the minor children KRIZTEEN ELIZABETH, BEVERLY MARIE
and NAPOLEON II, all surnamed DULAY vs. COURT OF APPEALS [G.R. No. 108017 April 3, 1995]

This petition for certiorari prays for the reversal of the decision of the Court of Appeals dated October 29, 1991 in CA-
G.R. CV No. 24646 which affirmed the order of the Regional Trial Court dismissing Civil Case No. Q-89-1751, and its
resolution dated November 17, 1991 denying herein, petitioner's motion for reconsideration.

The antecedent facts of the case are as follows:

On December 7, 1988, an altercation between Benigno Torzuela and Atty. Napoleon Dulay occurred at the "Big Bang
Sa Alabang," Alabang Village, Muntinlupa as a result of which Benigno Torzuela, the security guard on duty at the
said carnival, shot and killed Atty. Napoleon Dulay.

Herein petitioner Maria Benita A. Dulay, widow of the deceased Napoleon Dulay, in her own behalf and in behalf of
her minor children, filed on February 8, 1989 an action for damages against Benigno Torzuela and herein private
respondents Safeguard Investigation and Security Co., Inc., ("SAFEGUARD") and/or Superguard Security Corp.
("SUPERGUARD"), alleged employers of defendant Torzuela. The complaint, docketed as Civil Case No. Q-89-1751
among others alleges the following:

1. . . .

Defendants SAFEGUARD INVESTIGATION AND SECURITY CO., INC., (Defendant Safeguard) and
SUPERGUARD SECURITY CORPORATION (Defendant Superguard) are corporations duly organized and
existing in accordance with Philippine laws, with offices at 10th Floor, Manufacturers Building, Inc.,
Plaza Santa Cruz, Manila. They are impleaded as alternative defendants for, while the former appears
 to be the employer of defendant BENIGNO TORZUELA (defendant TORZUELA), the latter impliedly
acknowledged responsibility for the acts of defendant TORZUELA by extending its sympathies to
plaintiffs.

Defendant BENIGNO TORZUELA is of legal age, an employee of defendant SAFEGUARD and/or

defendant SUPERGUARD and, at the time of the incident complained of, was under their control and
supervision. . . .

3. On December 7, 1988 at around 8:00 a.m., defendant TORZUELA, while he was on duty as security
guard at the "Big Bang sa Alabang," Alabang Village, Muntinlupa, Metro Manila shot and killed
NAPOLEON V. DULAY with a .38 caliber revolver belonging to defendant SAFEGUARD, and/or
SUPERGUARD (per Police Report dated January 7, 1989, copy attached as Annex A);

4. The incident resulting in the death of NAPOLEON V. DULAY was due to the concurring negligence
of the defendants. Defendant TORZUELA'S wanton and reckless discharge of the firearm issued to
him by defendant SAFEGUARD and/or SUPERGUARD was the immediate and proximate cause of the
injury, while the negligence of defendant SAFEGUARD and/or SUPERGUARD consists in its having
failed to exercise the diligence of a good father of a family in the supervision and control of its
employee to avoid the injury.

xxx xxx xxx

(Rollo, pp. 117-118)

Petitioners prayed for actual, compensatory, moral and exemplary damages, and attorney's fees. The said Civil Case
No. Q-89-1751 was raffled to Branch 84 of the Regional Trial Court of Quezon City, presided by respondent Judge
Teodoro Regino.

On March 2, 1989, private respondent SUPERGUARD filed a Motion to Dismiss on the ground that the complaint does
not state a valid cause of action. SUPERGUARD claimed that Torzuela's act of shooting Dulay was beyond the scope of
his duties, and that since the alleged act of shooting was committed with deliberate intent (dolo), the civil liability
therefor is governed by Article 100 of the Revised Penal Code, which states:

Art. 100. Civil liability of a person guilty of a felony. — Every person criminally liable for a felony is
also civilly liable.

Respondent SUPERGUARD further alleged that a complaint for damages based on negligence under Article 2176 of
the New Civil Code, such as the one filed by petitioners, cannot lie, since the civil liability under Article 2176 applies
only to quasi-offenses under Article 365 of the Revised Penal Code. In addition, the private respondent argued that
petitioners' filing of the complaint is premature considering that the conviction of Torzuela in a criminal case is a
condition sine qua non for the employer's subsidiary liability (Rollo, p. 55-59).

Respondent SAFEGUARD also filed a motion praying that it be excluded as defendant on the ground that defendant
Torzuela is not one of its employees (Rollo, p. 96).

Petitioners opposed both motions, stating that their cause of action against the private respondents is based on their
liability under Article 2180 of the New Civil Code, which provides:

Art. 2180. The obligation imposed by Article 2176 is demandable not only for one's own acts or
omissions, but also for those of persons for whom one is responsible.

xxx xxx xxx

Employers shall be liable for the damages caused by their employees and household helpers acting
within the scope of their assigned tasks, even though the former are not engaged in any business or
an industry.

Petitioners contended that a suit against alternative defendants is allowed under Rule 3, Section 13 of the Rules of
Court. Therefore, the inclusion of private respondents as alternative defendants in the complaint is justified by the
following: the Initial Investigation Report prepared by Pat. Mario Tubon showing that Torzuela is an employee of
SAFEGUARD; and through overt acts, SUPERGUARD extended its sympathies to petitioners (Rollo, pp. 64 and 98).
Meanwhile, an Information dated March 21, 1989 charging Benigno Torzuela with homicide was filed before the
Regional Trial Court of Makati and was docketed as Criminal Case No. 89-1896.

On April 13, 1989, respondent Judge Regino issued an order granting SUPERGUARD'S motion to dismiss and
SAFEGUARD'S motion for exclusion as defendant. The respondent judge held that the complaint did not state facts
necessary or sufficient to constitute a quasi-delict since it does not mention any negligence on the part of Torzuela in
shooting Napoleon Dulay or that the same was done in the performance of his duties. Respondent judge ruled that
mere allegations of the concurring negligence of the defendants (private respondents herein) without stating the
facts showing such negligence are mere conclusions of law (Rollo, p. 106). Respondent judge also declared that the
complaint was one for damages founded on crimes punishable under Articles 100 and 103 of the Revised Penal Code
as distinguished from those arising from, quasi-delict. The dispositive portion of the order dated April 13, 1989
states:

WHEREFORE, this Court holds that in view of the material and ultimate facts alleged in the verified
complaint and in accordance with the applicable law on the matter as well as precedents laid down
by the Supreme Court, the complaint against the alternative defendants Superguard Security
Corporation and Safeguard Investigation and Security Co., Inc., must be and (sic) it is hereby
dismissed. (Rollo, p. 110)

The above order was affirmed by the respondent court and petitioners' motion for reconsideration thereof was
denied.

Petitioners take exception to the assailed decision and insist that quasi-delicts are not limited to acts of negligence
but also cover acts that are intentional and voluntary, citing Andamo v. IAC (191 SCRA 195 [1990]). Thus, petitioners
insist that Torzuela' s act of shooting Napoleon Dulay constitutes a quasi-delict actionable under Article 2176 of the
New Civil Code.

Petitioners further contend that under Article 2180 of the New Civil Code, private respondents are primarily liable for
their negligence either in the selection or supervision of their employees. This liability is independent of the
employee's own liability for fault or negligence and is distinct from the subsidiary civil liability under Article 103 of
the Revised Penal Code. The civil action against the employer may therefore proceed independently of the criminal
action pursuant to Rule 111 Section 3 of the Rules of Court. Petitioners submit that the question of whether Torzuela
is an employee of respondent SUPERGUARD or SAFEGUARD would be better resolved after trial.

Moreover, petitioners argue that Torzuela's act of shooting Dulay is also actionable under Article 33 of the New Civil
Code, to wit:

Art. 33. In cases of defamation, fraud, and physical injuries, a civil action for damages, entirely
separate and distinct from the criminal action, may be brought by the injured party. Such civil action
shall proceed independently of the criminal prosecution, and shall require only a preponderance of
evidence. (Emphasis supplied)

In the same vein, petitioners cite Section 3, Rule 111 of the Rules of Court which provides:

Rule 111. . . . .

Sec. 3. When civil action may proceed independently — In the cases provided for in Articles 32, 33,
34 and 2176 of the Civil Code of the Philippines, the independent civil action which has been
reserved may be brought by the offended party, shall proceed independently of the criminal action,
and shall require only a preponderance of evidence. (Emphasis supplied)

The term "physical injuries" under Article 33 has been held to include consummated, frustrated and attempted
homicide. Thus, petitioners maintain that Torzuela's prior conviction is unnecessary since the civil action can proceed
independently of the criminal action. On the other hand, it is the private respondents' argument that since the act
was not committed with negligence, the petitioners have no cause of action under Articles 2116 and 2177 of the New
Civil Code. The civil action contemplated in Article 2177 is not applicable to acts committed with deliberate intent,
but only applies to quasi-offenses under Article 365 of the Revised Penal Code. Torzuela's act of shooting Atty. Dulay
to death, aside from being purely personal, was done with deliberate intent and could not have been part of his
duties as security guard. And since Article 2180 of the New Civil Code covers only: acts done within the scope of the
employee's assigned tasks, the private respondents cannot be held liable for damages.
We find for petitioners.

It is undisputed that Benigno Torzuela is being prosecuted for homicide for the fatal shooting of Napoleon Dulay. Rule
111 of the Rules on Criminal Procedure provides:

Sec. 1. Institution of criminal and civil actions. When a criminal action is instituted, the civil action for
the recovery of civil liability is impliedly instituted with the criminal action, unless the offended party
waives the civil action , reserves his right to institute it separately or institutes the civil action prior to
the criminal action.

Such civil action includes recovery of indemnity under the Revised Penal Code, and damages under
Articles 32, 33, 34, and 2176 of the Civil Code of the Philippines arising from the same act or
omission of the accused. (Emphasis supplied)

It is well-settled that the filing of an independent civil action before the prosecution in the criminal action presents
evidence is even far better than a compliance with the requirement of express reservation (Yakult Philippines v. Court
of Appeals, 190 SCRA 357 [1990]). This is precisely what the petitioners opted to do in this case. However, the private
respondents opposed the civil action on the ground that the same is founded on a delict and not on a quasi-delict as
the shooting was not attended by negligence. What is in dispute therefore is the nature of the petitioner's cause of
action.

The nature of a cause of action is determined by the facts alleged in the complaint as constituting the cause of action
(Republic v. Estenzo, 158 SCRA 282 [1988]). The purpose of an action or suit and the law to govern it is to be
determined not by the claim of the party filing the action, made in his argument or brief, but rather by the complaint
itself, its allegations and prayer for relief. (De Tavera v. Philippine Tuberculosis Society, 112 SCRA 243 [1982]). An
examination of the complaint in the present case would show that the plaintiffs, petitioners herein, are invoking their
right to recover damages against the private respondents for their vicarious responsibility for the injury caused by
Benigno Torzuela's act of shooting and killing Napoleon Dulay, as stated in paragraphs 1 and 2 of the complaint.

Article 2176 of the New Civil Code provides:

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

Contrary to the theory of private respondents, there is no justification for limiting the scope of Article 2176 of the
Civil Code to acts or omissions resulting from negligence. Well-entrenched is the doctrine that article 2176 covers not
only acts committed with negligence, but also acts which are voluntary and intentional. As far back as the definitive
case of Elcano v. Hill (77 SCRA 98 [1977]), this Court already held that:

. . . Article 2176, where it refers to "fault or negligence," covers not only acts "not punishable by law"
but also acts criminal in character; whether intentional and voluntary or negligent. Consequently, a
separate civil action against the offender in a criminal act, whether or not he is criminally prosecuted
and found guilty or acquitted, provided that the offended party is not allowed, if he is actually
charged also criminally, to recover damages on both scores, and would be entitled in such
eventuality only to the bigger award of the two, assuming the awards made in the two cases vary. In
other words, the extinction of civil liability referred to in Par. (e) of Section 3, Rule 111, refers
exclusively to civil liability founded on Article 100 of the Revised Penal Code, whereas the civil
liability for the same act considered as quasi-delict only and not as a crime is not extinguished even
by a declaration in the criminal case that the criminal act charged has not happened or has not been
committed by the accused. Briefly stated, We here hold, in reiteration of Garcia, that culpa aquiliana
includes voluntary and negligent acts which may be punishable by law. (Emphasis supplied)

The same doctrine was echoed in the case of Andamo v. Intermediate Appellate Court (191 SCRA 195 [1990]),
wherein the Court held:

Article 2176, whenever it refers to "fault or negligence," covers not only acts criminal in character,
whether intentional and voluntary or negligent. Consequently, a civil action lies against the offender
in a criminal act, whether or not he is prosecuted or found guilty or acquitted, provided that the
offended party is not allowed, (if the tortfeasor is actually also charged criminally), to recover
 damages on both scores, and would be entitled in such eventuality only to the bigger award of the
two, assuming the awards made in the two cases vary. [citing Virata v. Ochoa, 81 SCRA 472]
(Emphasis supplied)

Private respondents submit that the word "intentional" in the Andamo case is inaccurate obiter, and should be read
as "voluntary" since intent cannot be coupled with negligence as defined by Article 365 of the Revised Penal Code. In
the absence of more substantial reasons, this Court will not disturb the above doctrine on the coverage of Article
2176.

Private respondents further aver that Article 33 of the New Civil Code applies only to injuries intentionally committed
pursuant to the ruling in Marcia v. CA (120 SCRA 193 [1983]), and that the actions for damages allowed thereunder
are ex-delicto. However, the term "physical injuries" in Article 33 has already been construed to include bodily
injuries causing death (Capuno v. Pepsi-Cola Bottling Co. of the Philippines, 121 Phil. 638 [1965); Carandang v.
Santiago, 97 Phil. 94 [1955]). It is not the crime of physical injuries defined in the Revised Penal Code. It includes not
only physical injuries but also consummated, frustrated, and attempted homicide (Madeja v. Caro, 126 SCRA 293
[1983]). Although in the Marcia case (supra), it was held that no independent civil action may be filed under Article
33 where the crime is the result of criminal negligence, it must be noted however, that Torzuela, the accused in the
case at bar, is charged with homicide, not with reckless imprudence, whereas the defendant in Marcia was charged
with reckless imprudence. Therefore, in this case, a civil action based on Article 33 lies.

Private respondents also contend that their liability is subsidiary under the Revised Penal Code; and that they are not
liable for Torzuela's act which is beyond the scope of his duties as a security guard. It having been established that
the instant action is not ex-delicto, petitioners may proceed directly against Torzuela and the private respondents.
Under Article 2180 of the New Civil Code as aforequoted, when an injury is caused by the negligence of the
employee, there instantly arises a presumption of law that there was negligence on the part of the master or
employer either in the selection of the servant or employee, or in supervision over him after selection or both
(Layugan v. Intermediate Appellate Court, 167 SCRA 363 [1988]). The liability of the employer under Article 2180 is
direct and immediate; it is not conditioned upon prior recourse against the negligent employee and a prior showing
of the insolvency of such employee (Kapalaran Bus Lines v. Coronado, 176 SCRA 792 [1989]). Therefore, it is
incumbent upon the private respondents to prove that they exercised the diligence of a good father of a family in the
selection and supervision of their employee.

Since Article 2176 covers not only acts of negligence but also acts which are intentional and voluntary, it was
therefore erroneous on the part of the trial court to dismiss petitioner's complaint simply because it failed to make
allegations of attendant negligence attributable to private respondents.

With respect to the issue of whether the complaint at hand states a sufficient cause of action, the general rule is that
the allegations in a complaint are sufficient to constitute a cause of action against the defendants if, admitting the
facts alleged, the court can render a valid judgment upon the same in accordance with the prayer therein. A cause of
action exist if the following elements are present, namely: (1) a right in favor of the plaintiff by whatever means and
under whatever law it arises or is created; (2) an obligation on the part of the named defendant to respect or not to
violate such right; and (3) an act or omission on the part of such defendant violative of the right of the plaintiff or
constituting a breach of the obligation of the defendant to the plaintiff for which the latter may maintain an action
for recovery of damages (Del Bros Hotel Corporation v. CA, 210 SCRA 33 [1992]); Development Bank of the
Philippines v. Pundogar, 218 SCRA 118 [1993])

This Court finds, under the foregoing premises, that the complaint sufficiently alleged an actionable breach on the
part of the defendant Torzuela and respondents SUPERGUARD and/or SAFEGUARD. It is enough that the complaint
alleged that Benigno Torzuela shot Napoleon Dulay resulting in the latter's death; that the shooting occurred while
Torzuela was on duty; and that either SUPERGUARD and/or SAFEGUARD was Torzuela's employer and responsible for
his acts. This does not operate however, to establish that the defendants below are liable. Whether or not the
shooting was actually reckless and wanton or attended by negligence and whether it was actually done within the
scope of Torzuela's duties; whether the private respondents SUPERGUARD and/or SAFEGUARD failed to exercise the
diligence of a good father of a family; and whether the defendants are actually liable, are questions which can be
better resolved after trial on the merits where each party can present evidence to prove their respective allegations
and defenses. In determining whether the allegations of a complaint are sufficient to support a cause of action, it
must be borne in mind that the complaint does not have to establish or allege the facts proving the existence of a
cause of action at the outset; this will have to be done at the trial on the merits of the case (Del Bros Hotel
Corporation v. CA, supra). If the allegations in a complaint can furnish a sufficient basis by which the complaint can be
maintained, the same should not be dismissed regardless of the defenses that may be assessed by the defendants
(Rava Dev't. Corp. v. CA, 211 SCRA 152 [1992] citing Consolidated Bank & Trust Corporation v. Court of Appeals, 197
SCRA 663 [1991]). To sustain a motion to dismiss for lack of cause of action, the complaint must show that the claim
for relief does not exist rather than that a claim has been defectively stated, is ambiguous, indefinite or uncertain
(Azur v. Provincial Board, 27 SCRA 50 [1969]). Since the petitioners clearly sustained an injury to their rights under
the law, it would be more just to allow them to present evidence of such injury.

WHEREFORE, premises considered, the petition for review is hereby GRANTED. The decision of the Court of Appeals
as well as the Order of the Regional Trial Court dated April 13, 1989 are hereby REVERSED and SET ASIDE. Civil Case
No. Q-89-1751 is remanded to the Regional Trial Court for trial on the merits. This decision is immediately executory.

SO ORDERED.

GERMAN GARCIA, LUMINOSA GARCIA, and ESTER FRANCISCO vs. MARIANO FLORIDO (CFI-MISAMIS OCCIDENTAL),
MARCELINO INESIN, RICARDO VAYSON, MACTAN TRANSIT CO., INC., and PEDRO TUMALA Y DIGAL
[G.R. No. L-35095 August 31, 1973]

Appeal by certiorari from the decision of the Court of First Instance of Misamis Occidental, Branch III, in Civil Case No.
2850 (German C. Garcia, et al. vs. Marcelino Inesin et al.) dated October 21, 1971, dismissing petitioners' action for
damages against respondents, Mactan Transit Co., Inc. and Pedro Tumala "without prejudice to refiling the said civil
action after conviction of the defendants in the criminal case filed by the Chief of Police of Sindangan Zamboanga del
Norte", and from the order of said Court dated January 21, 1972, denying petitioners' motion for reconsideration.

On August 4, 1971, petitioners, German C. Garcia, Chief of the Misamis Occidental Hospital, together with his wife,
Luminosa L. Garcia, and Ester Francisco, bookkeeper of said hospital, hired and boarded a PU car with plate No. 241-8
G Ozamis 71 owned and operated by respondent, Marcelino Inesin, and driven by respondent, Ricardo Vayson, for a
round-trip from Oroquieta City to Zamboanga City, for the purpose of attending a conference of chiefs of government
hospitals, hospital administrative officers, and bookkeepers of Regional Health Office No. 7 at Zamboanga City. At
about 9:30 a.m., while the PU car was negotiating a slight curve on the national highway at kilometer 21 in Barrio
Guisukan, Sindangan, Zamboanga del Norte, said car collided with an oncoming passenger bus (No. 25) with plate
No. 77-4 W Z.N. 71 owned and operated by the Mactan Transit Co., Inc. and driven by defendant, Pedro Tumala. As a
result of the aforesaid collision, petitioners sustained various physical injuries which necessitated their medical
treatment and hospitalization.

Alleging that both drivers of the PU car and the passenger bus were at the time of the accident driving their
respective vehicles at a fast clip, in a reckless, grossly negligent and imprudent manner in gross violation of traffic
rules and without due regard to the safety of the passengers aboard the PU car, petitioners, German C. Garcia,
Luminosa L. Garcia, and Ester Francisco, filed on September 1, 1971 with respondent Court of First Instance of
Misamis Occidental an action for damages (Civil Case No. 2850) against the private respondents, owners and drivers,
respectively, of the PU car and the passenger bus that figured in the collision, with prayer for preliminary attachment.
On September 16, 1971, Marcelino Inesin and Ricardo Vayson filed their answer in the aforementioned Civil Case No.
2850 admitting the contract of carriage with petitioners but alleged, by way of defense, that the accident was due to
the negligence and reckless imprudence of the bus driver, as when Ricardo Vayson, driver of the PU car, saw the
oncoming passenger bus No. 25 coming from the opposite direction ascending the incline at an excessive speed,
chasing another passenger bus, he had to stop the PU car in order to give way to the passenger bus, but, in spite of
such precaution, the passenger bus bumped the PU car, thus causing the accident in question, and, therefore, said
private respondents could not be held liable for the damages caused on petitioners.

On September 29, 1971, respondents, Mactan Transit Co., Inc. and Pedro Tumala, filed a motion to dismiss on three
(3) grounds, namely: 1) that the plaintiffs (petitioners) had no cause of action; 2) that the complaint carries with it a
prayer for attachment but without the requisite verification, hence defective under the provision of Sec. 3, Rule 57 of
the Rules of Court; and 3) that the defendants (respondents), Mactan Transit Co., Inc. and its driver, accused Pedro
Tumala, had operated said passenger bus with maximum care and prudence.

The principal argument advanced in said motion to dismiss was that the petitioners had no cause of action for on
August 11, 1971, or 20 days before the filing of the present action for damages, respondent Pedro Tumala was
charged in Criminal Case No. 4960 of the Municipal Court of Sindangan, Zamboanga del Norte, in a complaint filed by
the Chief of Police for "double serious and less serious physical injuries through reckless imprudence", and that, with
the filing of the aforesaid criminal case, no civil action could be filed subsequent thereto unless the criminal case has
been finally adjudicated, pursuant to Sec. 3 of Rule 111 of the Rules of Court, and, therefore, the filing of the instant
civil action is premature, because the liability of the employer is merely subsidiary and does not arise until after final
judgment has been rendered finding the driver, Pedro Tumala guilty of negligence; that Art. 33 of the New Civil Code,
is not applicable because Art. 33 applied only to the crimes of physical injuries or homicide, not to the negligent act
or imprudence of the driver.

On October 14, 1971, petitioners filed an opposition to said motion to dismiss alleging that the aforesaid action for
damages was instituted not to enforce the civil liability of the respondents under Art. 100 of the Revised Penal Code
but for their civil liability on quasi-delicts pursuant to Articles 2176-2194, as the same negligent act causing damages
may produce civil liability arising from a crime under the Revised Penal Code or create an action for quasi-delict or
culpa extra-contractual under the Civil Code, and the party seeking recovery is free to choose which remedy to
enforce.

In dismissing the complaint for damages in Civil Case No. 2850, the lower court sustained the arguments of
respondents, Mactan Transit Co., Inc. and Pedro Tumala, and declared that whether or not "the action for damages is
based on criminal negligence or civil negligence known as culpa aquiliana in the Civil Code or tort under American
law" there "should be a showing that the offended party expressly waived the civil action or reserved his right to
institute it separately" and that "the allegations of the complaint in culpa aquiliana must not be tainted by any
assertion of violation of law or traffic rules or regulations" and because of the prayer in the complaint asking the
Court to declare the defendants jointly and severally liable for moral, compensatory and exemplary damages, the
Court is of the opinion that the action was not based on "culpa aquiliana or quasi-delict."

Petitioners' motion for reconsideration was denied by the trial court on January 21, 1972, hence this appeal
on certiorari.

There is no question that from a careful consideration of the allegations contained in the complaint in Civil Case No.
2850, the essential averments for a quasi-delictual action under Articles 2176-2194 of the New Civil Code are
present, namely: a) act or omission of the private respondents; b) presence of fault or negligence or the lack of due
care in the operation of the passenger bus No. 25 by respondent Pedro Tumala resulting in the collision of the bus
with the passenger car; c) physical injuries and other damages sustained by petitioners as a result of the collision; d)
existence of direct causal connection between the damage or prejudice and the fault or negligence of private
respondents; and e) the absence of pre-existing contractual relations between the parties. The circumstance that the
complaint alleged that respondents violated traffic rules in that the driver drove the vehicle "at a fast clip in a
reckless, grossly negligent and imprudent manner in violation of traffic rules and without due regard to the safety of
the passengers aboard the PU car" does not detract from the nature and character of the action, as one based on
culpa aquiliana. The violation of traffic rules is merely descriptive of the failure of said driver to observe for the
protection of the interests of others, that degree of care, precaution and vigilance which the circumstances justly
demand, which failure resulted in the injury on petitioners. Certainly excessive speed in violation of traffic rules is a
clear indication of negligence. Since the same negligent act resulted in the filing of the criminal action by the Chief of
Police with the Municipal Court (Criminal Case No. 4960) and the civil action by petitioners, it is inevitable that the
averments on the drivers' negligence in both complaints would substantially be the same. It should be emphasized
that the same negligent act causing damages may produce a civil liability arising from a crime under Art. 100 of the
Revised Penal Code or create an action for quasi-delict or culpa extra-contractual under Arts. 2176-2194 of the New
Civil Code. This distinction has been amply explained in Barredo vs. Garcia, et al. (73 Phil. 607, 620-621).1

It is true that under Sec. 2 in relation to Sec. 1 of Rule 111 of the Revised Rules of Court which became effective on
January 1, 1964, in the cases provided for by Articles 31, 33, 39 and 2177 of the Civil Code, an independent civil
action entirely separate and distinct from the civil action, may be instituted by the injured party during the pendency
of the criminal case, provided said party has reserved his right to institute it separately, but it should be noted,
however, that neither Section 1 nor Section 2 of Rule 111 fixes a time limit when such reservation shall be made.
In Tactaquin v. Palileo,2 where the reservation was made after the tort-feasor had already pleaded guilty and after the
private prosecutor had entered his appearance jointly with the prosecuting attorney in the course of the criminal
proceedings, and the tort-feasor was convicted and sentenced to pay damages to the offended party by final
judgment in said criminal case, We ruled that such reservation is legally ineffective because the offended party
cannot recover damages twice for the same act or omission of the defendant. We explained in Meneses vs. Luat3that
when the criminal action for physical injuries against the defendant did not proceed to trial as he pleaded guilty upon
arraignment and the Court made no pronouncement on the matter or damages suffered by the injured party, the
mere appearance of private counsel in representation of the offended party in said criminal case does not constitute
such active intervention as could impart an intention to press a claim for damages in the same action, and, therefore,
cannot bar a separate civil action for damages subsequently instituted on the same ground under Article 33 of the
New Civil Code.

In the case at bar, there is no question that petitioners never intervened in the criminal action instituted by the Chief
of Police against respondent Pedro Tumala, much less has the said criminal action been terminated either by
conviction or acquittal of said accused.

It is, therefore, evident that by the institution of the present civil action for damages, petitioners have in effect
abandoned their right to press recovery for damages in the criminal case, and have opted instead to recover them in
the present civil case.

As a result of this action of petitioners the civil liability of private respondents to the former has ceased to be
involved in the criminal action. Undoubtedly an offended party loses his right to intervene in the prosecution of a
criminal case, not only when he has waived the civil action or expressly reserved his right to institute, but also when
he has actually instituted the civil action. For by either of such actions his interest in the criminal case has
disappeared.

As we have stated at the outset, the same negligent act causing damages may produce a civil liability arising from
crime or create an action for quasi-delict or culpa extra-contractual. The former is a violation of the criminal law,
while the latter is a distinct and independent negligence, having always had its own foundation and individuality.
Some legal writers are of the view that in accordance with Article 31, the civil action based upon quasi-delict may
proceed independently of the criminal proceeding for criminal negligence and regardless of the result of the latter.
Hence, "the proviso in Section 2 of Rule 111 with reference to ... Articles 32, 33 and 34 of the Civil Code is contrary to
the letter and spirit of the said articles, for these articles were drafted ... and are intended to constitute as exceptions
to the general rule stated in what is now Section 1 of Rule 111. The proviso which is procedural, may also be regarded
as an unauthorized amendment of substantive law, Articles 32, 33 and 34 of the Civil Code, which do not provide for
the reservation required in the proviso."4 But in whatever way We view the institution of the civil action for recovery
of damages under quasi-delict by petitioners, whether as one that should be governed by the provisions of Section 2
of Rule 111 of the Rules which require reservation by the injured party considering that by the institution of the civil
action even before the commencement of the trial of the criminal case, petitioners have thereby foreclosed their
right to intervene therein, or one where reservation to file the civil action need not be made, for the reason that the
law itself (Article 33 of the Civil Code) already makes the reservation and the failure of the offended party to do so
does not bar him from bringing the action, under the peculiar circumstances of the case, We find no legal justification
for respondent court's order of dismissal.

WHEREFORE, the decision and order appealed from are hereby reversed and set aside, and the court a quo is
directed to proceed with the trial of the case. Costs against private respondents.
Separate Opinions: (BARREDO, J., concurring)

I would like to limit my concurrence.

I believe that the only substantive legal provision involved in this case are Articles 2176 and 2177 of the Civil Code
which read as follows:

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

ART 2177. Responsibility for fault or negligence under the preceding article is entirely separate and
distinct from the civil liability arising from negligence under the Penal Code. But the plaintiff cannot
recover damages twice for the same act or omission of the defendant.

These provisions definitely create a civil liability distinct and different from the civil action arising from the offense of
negligence under the Revised Penal Code. Since Civil Case No. 2850 is predicated on the above civil code articles and
not on the civil liability imposed by the Revised Penal Code, I cannot see why a reservation had to be made in the
criminal case. As to the specific mention of Article 2177 in Section 2 of the Rule 111, it is my considered view that the
latter provision is inoperative, it being substantive in character and is not within the power of the Supreme Court to
promulgate, and even if it were not substantive but adjective, it cannot stand because of its inconsistency with Article
2177, an enactment of the legislature superseding the Rules of 1940.

Besides, the actual filing of Civil Case No. 2850 should be deemed as the reservation required, there being no
showing that prejudice could be caused by doing so.

Accordingly, I concur in the judgment reversing the order of dismissal of the trial court in order that Civil Case No.
2850 may proceed, subject to the limitation mentioned in the last sentence of Article 2177 of the Civil Code, which
means that of the two possible judgments, the injured party is entitled exclusively to the bigger one.

NATIVIDAD and EMMANUEL ANDAMO vs. IAC and MISSIONARIES OF OUR LADY OF LA SALETTE, INC.
[G.R. No. 74761 November 6, 1990]

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

The antecedent facts are as follows:

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

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

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

Subsequently, on February 22, 1983, petitioners filed another action against respondent corporation, this time a civil
case, docketed as Civil Case No. TG-748, for damages with prayer for the issuance of a writ of preliminary injunction
before the same court. 1
On March 11, 1983, respondent corporation filed its answer to the complaint and opposition to the issuance of a writ
of preliminary injunction. Hearings were conducted including ocular inspections on the land. However, on April 26,
1984, the trial court, acting on respondent corporation's motion to dismiss or suspend the civil action, issued an
order suspending further hearings in Civil Case No, TG-748 until after judgment in the related Criminal Case No. TG-
907-82.

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

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

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

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

It is axiomatic that the nature of an action filed in court is determined by the facts alleged in the complaint as
constituting the cause of action. 7 The purpose of an action or suit and the law to govern it, including the period of
prescription, is to be determined not by the claim of the party filing the action, made in his argument or brief, but
rather by the complaint itself, its allegations and prayer for relief. 8 The nature of an action is not necessarily
determined or controlled by its title or heading but the body of the pleading or complaint itself. To avoid possible
denial of substantial justice due to legal technicalities, pleadings as well as remedial laws should be liberally
construed so that the litigants may have ample opportunity to prove their respective claims. 9

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

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

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

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

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

a) Portions of the land of plaintiffs were eroded and converted to deep, wide and
long canals, such that the same can no longer be planted to any crop or plant.
 b) Costly fences constructed by plaintiffs were, on several occasions, washed away.

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

d) Plants and other improvements on other portions of the land of plaintiffs are
exposed to destruction. ... 10

A careful examination of the aforequoted complaint shows that the civil action is one under Articles 2176 and 2177
of the Civil Code on quasi-delicts. All the elements of a quasi-delict are present, to wit: (a) damages suffered by the
plaintiff, (b) fault or negligence of the defendant, or some other person for whose acts he must respond; and (c) the
connection of cause and effect between the fault or negligence of the defendant and the damages incurred by the
plaintiff. 11

Clearly, from petitioner's complaint, the waterpaths and contrivances built by respondent corporation are alleged to
have inundated the land of petitioners. There is therefore, an assertion of a causal connection between the act of
building these waterpaths and the damage sustained by petitioners. Such action if proven constitutes fault or
negligence which may be the basis for the recovery of damages.

In the case of Samson vs. Dionisio, 12 the Court applied Article 1902, now Article 2176 of the Civil Code and held that
"any person who without due authority constructs a bank or dike, stopping the flow or communication between a
creek or a lake and a river, thereby causing loss and damages to a third party who, like the rest of the residents, is
entitled to the use and enjoyment of the stream or lake, shall be liable to the payment of an indemnity for loss and
damages to the injured party.

While the property involved in the cited case belonged to the public domain and the property subject of the instant
case is privately owned, the fact remains that petitioners' complaint sufficiently alleges that petitioners have
sustained and will continue to sustain damage due to the waterpaths and contrivances built by respondent
corporation. Indeed, the recitals of the complaint, the alleged presence of damage to the petitioners, the act or
omission of respondent corporation supposedly constituting fault or negligence, and the causal connection between
the act and the damage, with no pre-existing contractual obligation between the parties make a clear case of a quasi
delict or culpa aquiliana.

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

Article 2176 of the Civil Code imposes a civil liability on a person for damage caused by his act or omission
constituting fault or negligence, thus:

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

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

The distinctness of quasi-delicta is shown in Article 2177 of the Civil Code, which states:

Article 2177. Responsibility for fault or negligence under the preceding article is entirely separate
and distinct from the civil liability arising from negligence under the Penal Code. But the plaintiff
cannot recover damages twice for the same act or omission of the defendant.
According to the Report of the Code Commission "the foregoing provision though at first sight startling, is not so novel or
extraordinary when we consider the exact nature of criminal and civil negligence. The former is a violation of the criminal
law, while the latter is a distinct and independent negligence, which is a "culpa aquiliana" or quasi-delict, of ancient origin,
having always had its own foundation and individuality, separate from criminal negligence. Such distinction between
criminal negligence and "culpa extra-contractual" or "cuasi-delito" has been sustained by decisions of the Supreme Court
of Spain ... 14

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

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

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

DAVID TAYLOR vs. THE MANILA ELECTRIC RAILROAD AND LIGHT COMPANY
[G.R. No. L-4977. March 22, 1910]

An action to recover damages for the loss of an eye and other injuries, instituted by David Taylor, a minor, by his
father, his nearest relative.

The defendant is a foreign corporation engaged in the operation of a street railway and an electric light system in the
city of Manila. Its power plant is situated at the eastern end of a small island in the Pasig River within the city of
Manila, known as the Isla del Provisor. The power plant may be reached by boat or by crossing a footbridge,
impassable for vehicles, at the westerly end of the island.

The plaintiff, David Taylor, was at the time when he received the injuries complained of, 15 years of age, the son of a
mechanical engineer, more mature than the average boy of his age, and having considerable aptitude and training in
mechanics.

On the 30th of September, 1905, plaintiff, with a boy named Manuel Claparols, about 12 years of age, crossed the
footbridge to the Isla del Provisor, for the purpose of visiting one Murphy, an employee of the defendant, who and
promised to make them a cylinder for a miniature engine. Finding on inquiry that Mr. Murphy was not in his quarters,
the boys, impelled apparently by youthful curiosity and perhaps by the unusual interest which both seem to have
taken in machinery, spent some time in wandering about the company's premises. The visit was made on a Sunday
afternoon, and it does not appear that they saw or spoke to anyone after leaving the power house where they had
asked for Mr. Murphy.

After watching the operation of the travelling crane used in handling the defendant's coal, they walked across the
open space in the neighborhood of the place where the company dumped in the cinders and ashes from its furnaces.
Here they found some twenty or thirty brass fulminating caps scattered on the ground. These caps are approximately
of the size and appearance of small pistol cartridges and each has attached to it two long thin wires by means of
which it may be discharged by the use of electricity. They are intended for use in the explosion of blasting charges of
dynamite, and have in themselves a considerable explosive power. After some discussion as to the ownership of the
caps, and their right to take them, the boys picked up all they could find, hung them on stick, of which each took end,
and carried them home. After crossing the footbridge, they met a little girl named Jessie Adrian, less than 9 years old,
and all three went to the home of the boy Manuel. The boys then made a series of experiments with the caps. They
trust the ends of the wires into an electric light socket and obtained no result. They next tried to break the cap with a
stone and failed. Manuel looked for a hammer, but could not find one. Then they opened one of the caps with a
knife, and finding that it was filled with a yellowish substance they got matches, and David held the cap while Manuel
applied a lighted match to the contents. An explosion followed, causing more or less serious injuries to all three.
Jessie, who when the boys proposed putting a match to the contents of the cap, became frightened and started to
run away, received a slight cut in the neck. Manuel had his hand burned and wounded, and David was struck in the
face by several particles of the metal capsule, one of which injured his right eye to such an extent as to the
necessitate its removal by the surgeons who were called in to care for his wounds.

The evidence does definitely and conclusively disclose how the caps came to be on the defendant's premises, nor
how long they had been there when the boys found them. It appears, however, that some months before the
accident, during the construction of the defendant's plant, detonating caps of the same size and kind as those found
by the boys were used in sinking a well at the power plant near the place where the caps were found; and it also
appears that at or about the time when these caps were found, similarly caps were in use in the construction of an
extension of defendant's street car line to Fort William McKinley. The caps when found appeared to the boys who
picked them up to have been lying for a considerable time, and from the place where they were found would seem
to have been discarded as detective or worthless and fit only to be thrown upon the rubbish heap.

No measures seems to have been adopted by the defendant company to prohibit or prevent visitors from entering
and walking about its premises unattended, when they felt disposed so to do. As admitted in defendant counsel's
brief, "it is undoubtedly true that children in their play sometimes crossed the foot bridge to the islands;" and, we
may add, roamed about at will on the uninclosed premises of the defendant, in the neighborhood of the place where
the caps were found. There is evidence that any effort ever was made to forbid these children from visiting the
defendant company's premises, although it must be assumed that the company or its employees were aware of the
fact that they not infrequently did so.

Two years before the accident, plaintiff spent four months at sea, as a cabin boy on one of the interisland transports.
Later he took up work in his father's office, learning mechanical drawing and mechanical engineering. About a month
after his accident he obtained employment as a mechanical draftsman and continued in that employment for six
months at a salary of P2.50 a day; and it appears that he was a boy of more than average intelligence, taller and more
mature both mentally and physically than most boys of fifteen.

The facts set out in the foregoing statement are to our mind fully and conclusively established by the evidence of
record, and are substantially admitted by counsel. The only questions of fact which are seriously disputed are
plaintiff's allegations that the caps which were found by plaintiff on defendant company's premises were the
property of the defendant, or that they had come from its possession and control, and that the company or some of
its employees left them exposed on its premises at the point where they were found.

The evidence in support of these allegations is meager, and the defendant company, apparently relying on the rule of
law which places the burden of proof of such allegations upon the plaintiff, offered no evidence in rebuttal, and
insists that plaintiff failed in his proof. We think, however, that plaintiff's evidence is sufficient to sustain a finding in
accord with his allegations in this regard.

It was proven that caps, similar to those found by plaintiff, were used, more or less extensively, on the McKinley
extension of the defendant company's track; that some of these caps were used in blasting a well on the company's
premises a few months before the accident; that not far from the place where the caps were found the company has
a storehouse for the materials, supplies and so forth, used by it in its operations as a street railway and a purveyor of
electric light; and that the place, in the neighborhood of which the caps were found, was being used by the company
as a sort of dumping ground for ashes and cinders. Fulminating caps or detonators for the discharge by electricity of
blasting charges by dynamite are not articles in common use by the average citizen, and under all the circumstances,
and in the absence of all evidence to the contrary, we think that the discovery of twenty or thirty of these caps at the
place where they were found by the plaintiff on defendant's premises fairly justifies the inference that the defendant
company was either the owner of the caps in question or had the caps under its possession and control. We think
also that the evidence tends to disclose that these caps or detonators were willfully and knowingly thrown by the
company or its employees at the spot where they were found, with the expectation that they would be buried out of
the sight by the ashes which it was engaged in dumping in that neighborhood, they being old and perhaps defective;
and, however this may be, we are satisfied that the evidence is sufficient to sustain a finding that the company or
some of its employees either willfully or through an oversight left them exposed at a point on its premises which the
general public, including children at play, where not prohibited from visiting, and over which the company knew or
ought to have known that young boys were likely to roam about in pastime or in play.

Counsel for appellant endeavors to weaken or destroy the probative value of the facts on which these conclusions
are based by intimidating or rather assuming that the blasting work on the company's well and on its McKinley
extension was done by contractors. It was conclusively proven, however, that while the workman employed in
blasting the well was regularly employed by J. G. White and Co., a firm of contractors, he did the work on the well
directly and immediately under the supervision and control of one of defendant company's foremen, and there is no
proof whatever in the record that the blasting on the McKinley extension was done by independent contractors. Only
one witness testified upon this point, and while he stated that he understood that a part of this work was done by
contract, he could not say so of his own knowledge, and knew nothing of the terms and conditions of the alleged
contract, or of the relations of the alleged contractor to the defendant company. The fact having been proven that
detonating caps were more or less extensively employed on work done by the defendant company's directions and
on its behalf, we think that the company should have introduced the necessary evidence to support its contention if
it wished to avoid the not unreasonable inference that it was the owner of the material used in these operations and
that it was responsible for tortious or negligent acts of the agents employed therein, on the ground that this work
had been intrusted to independent contractors as to whose acts the maxim respondent superior should not be
applied. If the company did not in fact own or make use of caps such as those found on its premises, as intimated by
counsel, it was a very simple matter for it to prove that fact, and in the absence of such proof we think that the other
evidence in the record sufficiently establishes the contrary, and justifies the court in drawing the reasonable
inference that the caps found on its premises were its property, and were left where they were found by the
company or some of its employees.

Plaintiff appears to have rested his case, as did the trial judge his decision in plaintiff's favor, upon the provisions of
article 1089 of the Civil Code read together with articles 1902, 1903, and 1908 of that code.

ART. 1089 Obligations are created by law, by contracts, by quasi-contracts, and illicit acts and omissions or by
those in which any kind of fault or negligence occurs.

ART. 1902 A person who by an act or omission causes damage to another when there is fault or negligence
shall be obliged to repair the damage so done.

ART. 1903 The obligation imposed by the preceding article is demandable, not only for personal acts and
omissions, but also for those of the persons for whom they should be responsible.

The father, and on his death or incapacity the mother, is liable for the damages caused by the minors who
live with them.

xxx xxx xxx

Owners or directors of an establishment or enterprise are equally liable for damages caused by their
employees in the service of the branches in which the latter may be employed or on account of their duties.

xxx xxx xxx

The liability referred to in this article shall cease when the persons mentioned therein prove that they
employed all the diligence of a good father of a family to avoid the damage.

ART. 1908 The owners shall also be liable for the damage caused —

1 By the explosion of machines which may not have been cared for with due diligence, and for kindling of
explosive substances which may not have been placed in a safe and proper place.

Counsel for the defendant and appellant rests his appeal strictly upon his contention that the facts proven at the trial
do not established the liability of the defendant company under the provisions of these articles, and since we agree
with this view of the case, it is not necessary for us to consider the various questions as to form and the right of
action (analogous to those raised in the case of Rakes vs. Atlantic, Gulf and Pacific Co., 7 Phil. Rep., 359), which
would, perhaps, be involved in a decision affirming the judgment of the court below.
We agree with counsel for appellant that under the Civil Code, as under the generally accepted doctrine in the
United States, the plaintiff in an action such as that under consideration, in order to establish his right to a recovery,
must establish by competent evidence:

(1) Damages to the plaintiff.

(2) Negligence by act or omission of which defendant personally, or some person for whose acts it must
respond, was guilty.

(3) The connection of cause and effect between the negligence and the damage.

These proposition are, of course, elementary, and do not admit of discussion, the real difficulty arising in the
application of these principles to the particular facts developed in the case under consideration.

It is clear that the accident could not have happened and not the fulminating caps been left exposed at the point
where they were found, or if their owner had exercised due care in keeping them in an appropriate place; but it is
equally clear that plaintiff would not have been injured had he not, for his own pleasure and convenience, entered
upon the defendant's premises, and strolled around thereon without the express permission of the defendant, and
had he not picked up and carried away the property of the defendant which he found on its premises, and had he not
thereafter deliberately cut open one of the caps and applied a match to its contents.

But counsel for plaintiff contends that because of plaintiff's youth and inexperience, his entry upon defendant
company's premises, and the intervention of his action between the negligent act of defendant in leaving the caps
exposed on its premises and the accident which resulted in his injury should not be held to have contributed in any
wise to the accident, which should be deemed to be the direct result of defendant's negligence in leaving the caps
exposed at the place where they were found by the plaintiff, and this latter the proximate cause of the accident
which occasioned the injuries sustained by him.

In support of his contention, counsel for plaintiff relies on the doctrine laid down in many of the courts of last resort
in the United States in the cases known as the "Torpedo" and "Turntable" cases, and the cases based thereon.

In a typical cases, the question involved has been whether a railroad company is liable for an injury received by an
infant of tender years, who from mere idle curiosity, or for the purposes of amusement, enters upon the railroad
company's premises, at a place where the railroad company knew, or had good reason to suppose, children would be
likely to come, and there found explosive signal torpedoes left unexposed by the railroad company's employees, one
of which when carried away by the visitor, exploded and injured him; or where such infant found upon the premises
a dangerous machine, such as a turntable, left in such condition as to make it probable that children in playing with it
would be exposed to accident or injury therefrom and where the infant did in fact suffer injury in playing with such
machine.

In these, and in great variety of similar cases, the great weight of authority holds the owner of the premises liable.

As laid down in Railroad Co. vs. Stout (17 Wall. (84 U. S.), 657), wherein the principal question was whether a railroad
company was liable for in injury received by an infant while upon its premises, from idle curiosity, or for purposes of
amusement, if such injury was, under circumstances, attributable to the negligence of the company), the principles
on which these cases turn are that "while a railroad company is not bound to the same degree of care in regard to
mere strangers who are unlawfully upon its premises that it owes to passengers conveyed by it, it is not exempt from
responsibility to such strangers for injuries arising from its negligence or from its tortious acts;" and that "the conduct
of an infant of tender years is not to be judged by the same rule which governs that of adult. While it is the general
rule in regard to an adult that to entitle him to recover damages for an injury resulting from the fault or negligence of
another he must himself have been free from fault, such is not the rule in regard to an infant of tender years. The
care and caution required of a child is according to his maturity and capacity only, and this is to be determined in
each case by the circumstances of the case."

The doctrine of the case of Railroad Company vs. Stout was vigorously controverted and sharply criticized in several
state courts, and the supreme court of Michigan in the case of Ryan vs. Towar (128 Mich., 463) formally repudiated
and disapproved the doctrine of the Turntable cases, especially that laid down in Railroad Company vs. Stout, in a
very able decision wherein it held, in the language of the syllabus: (1) That the owner of the land is not liable to
trespassers thereon for injuries sustained by them, not due to his wanton or willful acts; (2) that no exception to this
rule exists in favor of children who are injured by dangerous machinery naturally calculated to attract them to the
premises; (3) that an invitation or license to cross the premises of another can not be predicated on the mere fact
that no steps have been taken to interfere with such practice; (4) that there is no difference between children and
adults as to the circumstances that will warrant the inference of an invitation or a license to enter upon another's
premises.

Similar criticisms of the opinion in the case of Railroad Company vs. Stout were indulged in by the courts in
Connecticut and Massachusetts. (Nolan vs. Railroad Co., 53 Conn., 461; 154 Mass., 349). And the doctrine has been
questioned in Wisconsin, Pennsylvania, New Hampshire, and perhaps in other States.

On the other hand, many if not most of the courts of last resort in the United States, citing and approving the
doctrine laid down in England in the leading case of Lynch vs. Nurding (1 Q. B., 29, 35, 36), lay down the rule in these
cases in accord with that announced in the Railroad Company vs. Stout (supra), and the Supreme Court of the United
States, in a unanimous opinion delivered by Justice Harlan in the case of Union Pacific Railway Co. vs. McDonal and
reconsidered the doctrine laid down in Railroad Co. vs. Stout, and after an exhaustive and critical analysis and review
of many of the adjudged cases, both English and American, formally declared that it adhered "to the principles
announced in the case of Railroad Co. vs. Stout."

In the case of Union Pacific Railway Co. vs. MacDonald (supra) the facts were as follows: The plaintiff, a boy 12 years
of age, out of curiosity and for his own pleasure, entered upon and visited the defendant's premises, without
defendant's express permission or invitation, and while there, was by accident injured by falling into a burning slack
pile of whose existence he had no knowledge, but which had been left by defendant on its premises without any
fence around it or anything to give warning of its dangerous condition, although defendant knew or had reason the
interest or curiosity of passers-by. On these facts the court held that the plaintiff could not be regarded as a mere
trespasser, for whose safety and protection while on the premises in question, against the unseen danger referred to,
the defendant was under no obligation to make provision.

We quote at length from the discussion by the court of the application of the principles involved to the facts in that
case, because what is said there is strikingly applicable in the case at bar, and would seem to dispose of defendant's
contention that, the plaintiff in this case being a trespasser, the defendant company owed him no duty, and in no
case could be held liable for injuries which would not have resulted but for the entry of plaintiff on defendant's
premises.

We adhere to the principles announced in Railroad Co. vs. Stout (supra). Applied to the case now before us,
they require us to hold that the defendant was guilty of negligence in leaving unguarded the slack pile, made
by it in the vicinity of its depot building. It could have forbidden all persons from coming to its coal mine for
purposes merely of curiosity and pleasure. But it did not do so. On the contrary, it permitted all, without
regard to age, to visit its mine, and witness its operation. It knew that the usual approach to the mine was by
a narrow path skirting its slack pit, close to its depot building, at which the people of the village, old and
young, would often assemble. It knew that children were in the habit of frequenting that locality and playing
around the shaft house in the immediate vicinity of the slack pit. The slightest regard for the safety of these
children would have suggested that they were in danger from being so near a pit, beneath the surface of
which was concealed (except when snow, wind, or rain prevailed) a mass of burning coals into which a child
might accidentally fall and be burned to death. Under all the circumstances, the railroad company ought not
to be heard to say that the plaintiff, a mere lad, moved by curiosity to see the mine, in the vicinity of the slack
pit, was a trespasser, to whom it owed no duty, or for whose protection it was under no obligation to make
provisions.

In Townsend vs. Wathen (9 East, 277, 281) it was held that if a man dangerous traps, baited with flesh, in his
own ground, so near to a highway, or to the premises of another, that dogs passing along the highway, or
kept in his neighbors premises, would probably be attracted by their instinct into the traps, and in
consequence of such act his neighbor's dogs be so attracted and thereby injured, an action on the case
would lie. "What difference," said Lord Ellenborough, C.J., "is there in reason between drawing the animal
into the trap by means of his instinct which he can not resist, and putting him there by manual force?" What
difference, in reason we may observe in this case, is there between an express license to the children of this
village to visit the defendant's coal mine, in the vicinity of its slack pile, and an implied license, resulting from
the habit of the defendant to permit them, without objection or warning, to do so at will, for purposes of
curiosity or pleasure? Referring it the case of Townsend vs. Wathen, Judge Thompson, in his work on the Law
of Negligence, volume 1, page 305, note, well says: "It would be a barbarous rule of law that would make the
owner of land liable for setting a trap thereon, baited with stinking meat, so that his neighbor's dog attracted
 by his natural instinct, might run into it and be killed, and which would exempt him from liability for the
consequence of leaving exposed and unguarded on his land a dangerous machine, so that his neighbor's
child attracted to it and tempted to intermeddle with it by instincts equally strong, might thereby be killed or
maimed for life."

Chief Justice Cooley, voicing the opinion of the supreme court of Michigan, in the case of Powers vs. Harlow (53
Mich., 507), said that (p. 515):

Children, wherever they go, must be expected to act upon childlike instincts and impulses; and others who
are chargeable with a duty of care and caution toward them must calculate upon this, and take precautions
accordingly. If they leave exposed to the observation of children anything which would be tempting to them,
and which they in their immature judgment might naturally suppose they were at liberty to handle or play
with, they should expect that liberty to be taken.

And the same eminent jurist in his treatise or torts, alluding to the doctrine of implied invitation to visit the premises
of another, says:

In the case of young children, and other persons not fully sui juris, an implied license might sometimes arise
when it would not on behalf of others. Thus leaving a tempting thing for children to play with exposed,
where they would be likely to gather for that purpose, may be equivalent to an invitation to them to make
use of it; and, perhaps, if one were to throw away upon his premises, near the common way, things tempting
to children, the same implication should arise. (Chap. 10, p. 303.)

The reasoning which led the Supreme Court of the United States to its conclusion in the cases of Railroad Co. vs.
Stout (supra) and Union Pacific Railroad Co. vs. McDonald (supra) is not less cogent and convincing in this jurisdiction
than in that wherein those cases originated. Children here are actuated by similar childish instincts and impulses.
Drawn by curiosity and impelled by the restless spirit of youth, boys here as well as there will usually be found
whenever the public is permitted to congregate. The movement of machinery, and indeed anything which arouses
the attention of the young and inquiring mind, will draw them to the neighborhood as inevitably as does the magnet
draw the iron which comes within the range of its magnetic influence. The owners of premises, therefore, whereon
things attractive to children are exposed, or upon which the public are expressly or impliedly permitted to enter or
upon which the owner knows or ought to know children are likely to roam about for pastime and in play, " must
calculate upon this, and take precautions accordingly." In such cases the owner of the premises can not be heard to
say that because the child has entered upon his premises without his express permission he is a trespasser to whom
the owner owes no duty or obligation whatever. The owner's failure to take reasonable precautions to prevent the
child from entering his premises at a place where he knows or ought to know that children are accustomed to roam
about of to which their childish instincts and impulses are likely to attract them is at least equivalent to an implied
license to enter, and where the child does enter under such conditions the owner's failure to take reasonable
precautions to guard the child against injury from unknown or unseen dangers, placed upon such premises by the
owner, is clearly a breach of duty, responsible, if the child is actually injured, without other fault on its part than that
it had entered on the premises of a stranger without his express invitation or permission. To hold otherwise would be
expose all the children in the community to unknown perils and unnecessary danger at the whim of the owners or
occupants of land upon which they might naturally and reasonably be expected to enter.

This conclusion is founded on reason, justice, and necessity, and neither is contention that a man has a right to do
what will with his own property or that children should be kept under the care of their parents or guardians, so as to
prevent their entering on the premises of others is of sufficient weight to put in doubt. In this jurisdiction as well as in
the United States all private property is acquired and held under the tacit condition that it shall not be so used as to
injure the equal rights and interests of the community (see U. S. vs. Toribio,1 No. 5060, decided January 26, 1910),
and except as to infants of very tender years it would be absurd and unreasonable in a community organized as is
that in which we lived to hold that parents or guardian are guilty of negligence or imprudence in every case wherein
they permit growing boys and girls to leave the parental roof unattended, even if in the event of accident to the child
the negligence of the parent could in any event be imputed to the child so as to deprive it a right to recover in such
cases — a point which we neither discuss nor decide.

But while we hold that the entry of the plaintiff upon defendant's property without defendant's express invitation or
permission would not have relieved defendant from responsibility for injuries incurred there by plaintiff, without
other fault on his part, if such injury were attributable to the negligence of the defendant, we are of opinion that
under all the circumstances of this case the negligence of the defendant in leaving the caps exposed on its premises
was not the proximate cause of the injury received by the plaintiff, which therefore was not, properly speaking,
"attributable to the negligence of the defendant," and, on the other hand, we are satisfied that plaintiffs action in
cutting open the detonating cap and putting match to its contents was the proximate cause of the explosion and of
the resultant injuries inflicted upon the plaintiff, and that the defendant, therefore is not civilly responsible for the
injuries thus incurred.

Plaintiff contends, upon the authority of the Turntable and Torpedo cases, that because of plaintiff's youth the
intervention of his action between the negligent act of the defendant in leaving the caps exposed on its premises and
the explosion which resulted in his injury should not be held to have contributed in any wise to the accident; and it is
because we can not agree with this proposition, although we accept the doctrine of the Turntable and Torpedo cases,
that we have thought proper to discuss and to consider that doctrine at length in this decision. As was said in case
of Railroad Co. vs. Stout (supra), "While it is the general rule in regard to an adult that to entitle him to recover
damages for an injury resulting from the fault or negligence of another he must himself have been free from fault,
such is not the rule in regard to an infant of tender years. The care and caution required of a child is according to his
maturity and capacity only, and this is to be determined in each case by the circumstances of the case." As we think
we have shown, under the reasoning on which rests the doctrine of the Turntable and Torpedo cases, no fault which
would relieve defendant of responsibility for injuries resulting from its negligence can be attributed to the plaintiff, a
well-grown boy of 15 years of age, because of his entry upon defendant's uninclosed premises without express
permission or invitation' but it is wholly different question whether such youth can be said to have been free from
fault when he willfully and deliberately cut open the detonating cap, and placed a match to the contents, knowing, as
he undoubtedly did, that his action would result in an explosion. On this point, which must be determined by "the
particular circumstances of this case," the doctrine laid down in the Turntable and Torpedo cases lends us no direct
aid, although it is worthy of observation that in all of the "Torpedo" and analogous cases which our attention has
been directed, the record discloses that the plaintiffs, in whose favor judgments have been affirmed, were of such
tender years that they were held not to have the capacity to understand the nature or character of the explosive
instruments which fell into their hands.

In the case at bar, plaintiff at the time of the accident was a well-grown youth of 15, more mature both mentally and
physically than the average boy of his age; he had been to sea as a cabin boy; was able to earn P2.50 a day as a
mechanical draftsman thirty days after the injury was incurred; and the record discloses throughout that he was
exceptionally well qualified to take care of himself. The evidence of record leaves no room for doubt that, despite his
denials on the witness stand, he well knew the explosive character of the cap with which he was amusing himself.
The series of experiments made by him in his attempt to produce an explosion, as described by the little girl who was
present, admit of no other explanation. His attempt to discharge the cap by the use of electricity, followed by his
efforts to explode it with a stone or a hammer, and the final success of his endeavors brought about by the
application of a match to the contents of the caps, show clearly that he knew what he was about. Nor can there be
any reasonable doubt that he had reason to anticipate that the explosion might be dangerous, in view of the fact that
the little girl, 9 years of age, who was within him at the time when he put the match to the contents of the cap,
became frightened and ran away.

True, he may not have known and probably did not know the precise nature of the explosion which might be
expected from the ignition of the contents of the cap, and of course he did not anticipate the resultant injuries which
he incurred; but he well knew that a more or less dangerous explosion might be expected from his act, and yet he
willfully, recklessly, and knowingly produced the explosion. It would be going far to say that "according to his
maturity and capacity" he exercised such and "care and caution" as might reasonably be required of him, or that
defendant or anyone else should be held civilly responsible for injuries incurred by him under such circumstances.

The law fixes no arbitrary age at which a minor can be said to have the necessary capacity to understand and
appreciate the nature and consequences of his own acts, so as to make it negligence on his part to fail to exercise
due care and precaution in the commission of such acts; and indeed it would be impracticable and perhaps
impossible so to do, for in the very nature of things the question of negligence necessarily depends on the ability of
the minor to understand the character of his own acts and their consequences; and the age at which a minor can be
said to have such ability will necessarily depends of his own acts and their consequences; and at the age at which a
minor can be said to have such ability will necessarily vary in accordance with the varying nature of the infinite
variety of acts which may be done by him. But some idea of the presumed capacity of infants under the laws in force
in these Islands may be gathered from an examination of the varying ages fixed by our laws at which minors are
conclusively presumed to be capable of exercising certain rights and incurring certain responsibilities, though it can
not be said that these provisions of law are of much practical assistance in cases such as that at bar, except so far as
they illustrate the rule that the capacity of a minor to become responsible for his own acts varies with the varying
circumstances of each case. Under the provisions of the Penal Code a minor over fifteen years of age is presumed to
be capable of committing a crime and is to held criminally responsible therefore, although the fact that he is less
than eighteen years of age will be taken into consideration as an extenuating circumstance (Penal Code, arts. 8 and
9). At 10 years of age a child may, under certain circumstances, choose which parent it prefers to live with (Code of
Civil Procedure, sec. 771). At 14 may petition for the appointment of a guardian (Id., sec. 551), and may consent or
refuse to be adopted (Id., sec. 765). And males of 14 and females of 12 are capable of contracting a legal marriage
(Civil Code, art. 83; G. O., No. 68, sec. 1).

We are satisfied that the plaintiff in this case had sufficient capacity and understanding to be sensible of the danger
to which he exposed himself when he put the match to the contents of the cap; that he was sui juris in the sense that
his age and his experience qualified him to understand and appreciate the necessity for the exercise of that degree of
caution which would have avoided the injury which resulted from his own deliberate act; and that the injury incurred
by him must be held to have been the direct and immediate result of his own willful and reckless act, so that while it
may be true that these injuries would not have been incurred but for the negligence act of the defendant in leaving
the caps exposed on its premises, nevertheless plaintiff's own act was the proximate and principal cause of the
accident which inflicted the injury.

The rule of the Roman law was: Quod quis ex culpa sua damnum sentit, non intelligitur sentire. (Digest, book 50, tit.
17 rule 203.)

The Patidas contain the following provisions:

The just thing is that a man should suffer the damage which comes to him through his own fault, and that he
can not demand reparation therefor from another. (Law 25, tit. 5, Partida 3.)

And they even said that when a man received an injury through his own acts the grievance should be against
himself and not against another. (Law 2, tit. 7, Partida 2.)

According to ancient sages, when a man received an injury through his own acts the grievance should be
against himself and not against another. (Law 2, tit. 7 Partida 2.)

And while there does not appear to be anything in the Civil Code which expressly lays down the law touching
contributory negligence in this jurisdiction, nevertheless, the interpretation placed upon its provisions by the
supreme court of Spain, and by this court in the case of Rakes vs. Atlantic, Gulf and Pacific Co. (7 Phil. Rep., 359),
clearly deny to the plaintiff in the case at bar the right to recover damages from the defendant, in whole or in part,
for the injuries sustained by him.

The judgment of the supreme court of Spain of the 7th of March, 1902 (93 Jurisprudencia Civil, 391), is directly in
point. In that case the court said:

According to the doctrine expressed in article 1902 of the Civil Code, fault or negligence is a source of
obligation when between such negligence and the injury there exists the relation of cause and effect; but if
the injury produced should not be the result of acts or omissions of a third party, the latter has no obligation
to repair the same, although such acts or omission were imprudent or unlawful, and much less when it is
shown that the immediate cause of the injury was the negligence of the injured party himself.

The same court, in its decision of June 12, 1900, said that "the existence of the alleged fault or negligence is not
sufficient without proof that it, and no other cause, gave rise to the damage."

See also judgment of October 21, 1903.

To similar effect Scaevola, the learned Spanish writer, writing under that title in his Jurisprudencia del Codigo
Civil (1902 Anuario, p. 455), commenting on the decision of March 7, 1902 of the Civil Code, fault or
negligence gives rise to an obligation when between it and the damage there exists the relation of cause and
effect; but if the damage caused does not arise from the acts or omissions of a third person, there is no
obligation to make good upon the latter, even though such acts or omissions be imprudent or illegal, and
much less so when it is shown that the immediate cause of the damage has been the recklessness of the
injured party himself.

And again —
 In accordance with the fundamental principle of proof, that the burden thereof is upon the plaintiff, it is
apparent that it is duty of him who shall claim damages to establish their existence. The decisions of April 9,
1896, and March 18, July, and September 27, 1898, have especially supported the principle, the first setting
forth in detail the necessary points of the proof, which are two: An act or omission on the part of the person
who is to be charged with the liability, and the production of the damage by said act or omission.

This includes, by inference, the establishment of a relation of cause or effect between the act or omission
and the damage; the latter must be the direct result of one of the first two. As the decision of March 22,
1881, said, it is necessary that the damages result immediately and directly from an act performed culpably
and wrongfully; "necessarily presupposing a legal ground for imputability." (Decision of October 29, 1887.)

Negligence is not presumed, but must be proven by him who alleges it. (Scavoela, Jurisprudencia del Codigo
Civil, vol. 6, pp. 551-552.)

(Cf. decisions of supreme court of Spain of June 12, 1900, and June 23, 1900.)

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

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

Difficulty seems to be apprehended in deciding which acts of the injured party shall be considered immediate
causes of the accident. The test is simple. Distinction must be made between the accident and the injury,
between the event itself, without which there could have been no accident, and those acts of the victim not
entering into it, independent of it, but contributing to his own proper hurt. For instance, the cause of the
accident under review was the displacement of the crosspiece or the failure to replace it. This produces the
event giving occasion for damages—that is, the sinking of the track and the sliding of the iron rails. To this
event, the act of the plaintiff in walking by the side of the car did not contribute, although it was an element
of the damage which came to himself. Had the crosspiece been out of place wholly or partly through his act
or omission of duty, that would have been one of the determining causes of the event or accident, for which
he would have been responsible. Where he contributes to the principal occurrence, as one of its determining
factors, he can not recover. Where, in conjunction with the occurrence, he contributes only to his own injury,
he may recover the amount that the defendant responsible for the event should pay for such injury, less a
sum deemed a suitable equivalent for his own imprudence.

We think it is quite clear that under the doctrine thus stated, the immediate cause of the explosion, the accident
which resulted in plaintiff's injury, was in his own act in putting a match to the contents of the cap, and that having
"contributed to the principal occurrence, as one of its determining factors, he can not recover."

We have not deemed it necessary to examine the effect of plaintiff's action in picking up upon defendant's premises
the detonating caps, the property of defendant, and carrying the relation of cause and effect between the negligent
act or omission of the defendant in leaving the caps exposed on its premises and the injuries inflicted upon the
plaintiff by the explosion of one of these caps. Under the doctrine of the Torpedo cases, such action on the part of an
infant of very tender years would have no effect in relieving defendant of responsibility, but whether in view of the
well-known fact admitted in defendant's brief that "boys are snappers-up of unconsidered trifles," a youth of the age
and maturity of plaintiff should be deemed without fault in picking up the caps in question under all the
circumstances of this case, we neither discuss nor decide.

Twenty days after the date of this decision let judgment be entered reversing the judgment of the court below,
without costs to either party in this instance, and ten days thereafter let the record be returned to the court wherein
it originated, where the judgment will be entered in favor of the defendant for the costs in first instance and the
complaint dismissed without day. So ordered.
HEIRS OF PEDRO TAYAG, SR. vs. HON. FERNANDO S. ALCANTARA, PHILIPPINE RABBIT BUS LINES, INC. and ROMEO
VILLA Y CUNANAN [G.R. No. L-50959 July 23, 1980]

This is a petition for certiorari, premised upon the following facts:

On September 25, 1974, the petitioners, heirs of Pedro Tayag, Sr., namely: Crisanta Salazar, Pedro Tayag, Jr., Renato
Tayag, Gabriel Tayag, Corazon Tayag and Rodolfo Tayag, filed with the Court of First Instance of Tarlac, Branch I,
presided over by the respondent Judge, a complaint 1 for damages against the private respondents Philippine Rabbit
Bus Lines, Inc. and Romeo Villa y Cunanan — docketed therein as Civil Case No. 5114 — alleging among others that in
the afternoon of September 2, 1974, while Pedro Tayag Sr. was riding on a bicycle along MacArthur Highway at Bo.
San Rafael, Tarlac, Tarlac on his way home, he was bumped and hit by a Philippine Rabbit Bus bearing Body No. 1107
and Plate No. YL 604 PUB '74, driven by Romeo Villa, as a result of which he sustained injuries which caused his
instantaneous death. In due time, the private respondents filed their answer, 2admitting some allegations and
denying the other allegations of the complaint

Thereafter, the private respondents filed a motion to suspend the trial 3 dated April 30, 1975, on the ground that the
criminal case 4 against the driver of the bus Romeo Villa was still pending in said court, and that Section 3, Rule Ill of
the Revised Rules of Court enjoins the suspension of the civil action until the criminal action is terminated. The
respondent Judge granted the motion, and consequently, suspended the hearing of Civil Case No. 5114. 5

On October 25, 1977, the respondent Judge rendered a decision 6 in Criminal Case No. 836, acquitting the accused
Romeo Villa of the crime of homicide on the ground of reasonable doubt.

Thereafter, the private respondents filed a motion to dismiss 7 Civil Case No. 5114 on the ground that the petitioners
have no cause of action against them the driver of the bus having been acquitted in the criminal action. The
petitioners opposed the motions 8 alleging that their cause of action is not based on crime but on quasi-delict.

Acting upon the said motion as well as the opposition thereto, the respondent Judge issued an order 9 dated April 13,
1978, dismissing the complaint in Civil Case No. 5114.

The petitioners moved to reconsider; 10 however, the same was denied by respondent Judge in his order 11 dated May
30, 1979.
Hence, the petitioners interposed the present petition for certiorari, to annul and set aside the order of respondent
Judge dated April 13, 1977, claiming that the respondent Judge acted without or in excess of his jurisdiction and for
with grave abuse of discretion in issuing the disputed order, and that there is no plain, speedy and adequate remedy
in the ordinary course of law except thru the present petition.

After the private respondents had filed their comment, 12 this Court Resolved to consider the said comment as
answer to the petition, and the case was deemed submitted for decision on September 3, 1979.

The only issue to be resolved in the instant case is whether or not the respondent Judge acted without or in excess of
his jurisdiction and/or with grave abuse of discretion in dismissing Civil Case No. 5114.

The petition is meritorious. Article 31 of the Civil Code provides as follows:

Art. 31. When the civil action is based on an obligation not arising from the act or commission
complained of as a felony. such civil action may proceed independently of the criminal proceedings
and regardless of the result of the latter.

Evidently, the above quoted provision of the Civil Code refers to a civil action based, not on the act or omission
charged as a felony in a criminal case, but one based on an obligation arising from other sources, 13 like quasi delict. 14

In the case at bar, the allegations of the complaint clearly show that petitioners' cause of action was based upon
a quasi delict. 15 Thus, the complaint alleged among others:

xxxxxxxxx

4. That on September 2, 1974, at about 6:00 o'clock in the afternoon at Sitio Pag-asa, Bo. San Rafael
Tarlac, Tarlac, along MacArthur Highway and while riding on a bicycle on his way home to Bo. San
Sebastian, Tarlac, Tarlac, Pedro Tayag, Sr. was bumped and hit by a Philippine Rabbit Bus bearing
Body No. 1107 and Plate No. YL 604 PUB '74 and as result of which he sustained physical injuries
which cause his instantaneous death and the bicycle he was riding on was damaged and destroyed;

5. That the Philippine Rabbit Bus ... was at the time of the accident being driven by defendant Romeo
Villa y Cunanan in a faster and greater speed than what was reasonable and proper and in a gray
negligent, careless, reckless and imprudent manner, without due regards to injuries to persons and
damage to properties and in violation of traffic rules and regulations;

6. That defendant Philippine Rabbit Bus Lines Inc. has failed to exercise the diligence of a good father
of a family in the selection and supervision of its employees, particularly defendant Romeo Villa y
Cunanan otherwise the accident in question which resulted in the death of Pedro Tayag, Sr. and
damage to his property would not have occurred.

xxxxxxxxx

All the essential averments for a quasi delictual action are present, namely: (1) an act or omission constituting fault
or negligence on the part of private respondent; (2) damage caused by the said act or commission; (3) direct causal
relation between the damage and the act or commission; and (4) no pre-existing contractual relation between the
parties. In the case of Elcano vs. Hill, 16 this Court held that:

... a separate civil action lies against the offender in a criminal act, whether or not he is criminality
prosecuted and found guilty or acquitted, provided that the offended party is not snowed, if he is
actually charged also criminally, to receiver damages on both scores, and would be entitled in such
eventuality only to the bigger award of the two, assuming the awards made in the two cases vary. In
other words, the extinction of civil liability referred to in Par. (e), Section 3, Rule III, refers exclusively
to civil liability founded on Article 100 of the Revised Penal Code, whereas the civil liability for the
same act considered as a quasi-delict only and not as a crime is not extinguished even by a
declaration in the criminal case that the criminal act charged has not happened or has not been
committed by the accused. Briefly stated, We here hold, in reiteration of Garcia that culpa aquiliana
includes voluntary and negligent acts which may be punishable by law.
The petitioners' cause of action being based on a quasi delict the acquittal of the driver, private respondent Romeo
Villa, of the crime charged in Criminal Case No. 836 is not a bar to the prosecution of Civil Case No. 5114 for damages
based on quasi-delict.17

In the light of the foregoing, We hold that respondent Judge acted with grave abuse of discretion amounting to lack
of jurisdiction in dismissing Civil Case No. 5114.

WHEREFORE, the order of dismissal should be, as it is hereby set aside, and the case is remanded to the lower court
for further proceedings, with costs against the private respondents.

SO ORDERED.

Separate Opinions (BARREDO, J., concurring)

I concur and also in the opinion of Justice Aquino. I just like to add that in my view the proceeding and trial in Civil
Case No. 5114 should not have been suspended at all just because of the filing of the criminal case. Aquino, J., see
concurrence below.

I concur because petitioners' action for damages is based on article 2177 of the Civil Code, under which, according to
the Code Commission, acquittal from an accusation of criminal negligence, whether on reasonable doubt or not, shag
not be a bar to a subsequent civil action, not for civil liability from criminal negligence, but for damages due to a
quasi-delict or culpa aquiliana. Article 33 Of the Civil Code also justifies the petitioners' independent civil action for
damages since the term "physical in. juries" therein embraces death Dyogi vs. Yateo, 100 Phil 1095).

Moreover, the acquittal of Romeo Villa was base on reasonable doubt. The petitioners, as plaintiffs in the civil case,
can amend their complaint and base their action also on article 29 of the Civil Code which allows an independent civil
action for damages in case of acquittal on the ground of reasonable doubt. The requirement in section 2, Rule III of
the Rules of Court that there should be a reservation in the criminal cases of the right to institute an independent
civil action is contrary to law (Garcia vs. Florida L-35095, August 31, 1973, 52 SCRA 420, 429).

ROY PADILLA, FILOMENO GALDONES, ISMAEL GONZALGO & JOSE BEDENIA vs. COURT OF APPEALS
[G.R. No. L-39999 May 31, 1984]

This is a petition for review on certiorari of a Court of Appeals' decision which reversed the trial court's judgment of
conviction and acquitted the petitioners of the crime of grave coercion on the ground of reasonable doubt but inspite
of the acquittal ordered them to pay jointly and severally the amount of P9,000.00 to the complainants as actual
damages.

The petitioners were charged under the following information:

The undersigned Fiscal accused ROY PADILLA, FILOMENO GALDONES, PEPITO BEDENIA, YOLLY RICO,
DAVID BERMUNDO, VILLANOAC, ROBERTO ROSALES, VILLANIA, ROMEO GARRIDO, JOSE ORTEGA, JR.,
RICARDO CELESTINO, REALINGO alias "KAMLON", JOHN DOE alias TATO, and FOURTEEN (14)
RICARDO DOES of the crime of GRAVE COERCION, committed as follows:

That on or about February 8, 1964 at around 9:00 o'clock in the morning, in the municipality of Jose
Panganiban, province of Camarines Norte, Philippines, and within the jurisdiction of this Honorable
Court, the above- named accused, Roy Padilla, Filomeno Galdones, Pepito Bedenia, Yolly Rico, David
Bermundo, Villanoac, Roberto Rosales, Villania, Romeo Garrido, Jose Ortega, Jr., Ricardo Celestino,
Realingo alias Kamlon, John Doe alias Tato, and Fourteen Richard Does, by confederating and
mutually helping one another, and acting without any authority of law, did then and there wilfully,
unlawfully, and feloniously, by means of threats, force and violence prevent Antonio Vergara and his
family to close their stall located at the Public Market, Building No. 3, Jose Panganiban, Camarines
Norte, and by subsequently forcibly opening the door of said stall and thereafter brutally
demolishing and destroying said stall and the furnitures therein by axes and other massive
instruments, and carrying away the goods, wares and merchandise, to the damage and prejudice of
the said Antonio Vergara and his family in the amount of P30,000.00 in concept of actual or
compensatory and moral damages, and further the sum of P20,000.00 as exemplary damages.

That in committing the offense, the accused took advantage of their public positions: Roy Padilla,
being the incumbent municipal mayor, and the rest of the accused being policemen, except Ricardo
 Celestino who is a civilian, all of Jose Panganiban, Camarines Norte, and that it was committed with
evident premeditation.

The Court of First Instance of Camarines Norte, Tenth Judicial District rendered a decision, the dispositive portion of
which states that:

IN VIEW OF THE FOREGOING, the Court finds the accused Roy Padilla, Filomeno Galdonez, Ismael Gonzalgo and Jose
Parley Bedenia guilty beyond reasonable doubt of the crime of grave coercion, and hereby imposes upon them to
suffer an imprisonment of FIVE (5) months and One (1) day; to pay a fine of P500.00 each; to pay actual and
compensatory damages in the amount of P10,000.00; moral damages in the amount of P30,000.00; and another
P10,000.00 for exemplary damages, jointly and severally, and all the accessory penalties provided for by law; and to
pay the proportionate costs of this proceedings.

The accused Federico Realingo alias 'Kamlon', David Bermundo, Christopher Villanoac, Godofredo
Villania, Romeo Garrido, Roberto Rosales, Ricardo Celestino and Jose Ortega, are hereby ordered
acquitted on grounds of reasonable doubt for their criminal participation in the crime charged.

The petitioners appealed the judgment of conviction to the Court of Appeals. They contended that the trial court's
finding of grave coercion was not supported by the evidence. According to the petitioners, the town mayor had the
power to order the clearance of market premises and the removal of the complainants' stall because the municipality
had enacted municipal ordinances pursuant to which the market stall was a nuisance per se. The petitioners stated
that the lower court erred in finding that the demolition of the complainants' stall was a violation of the very
directive of the petitioner Mayor which gave the stall owners seventy two (72) hours to vacate the market premises.
The petitioners questioned the imposition of prison terms of five months and one day and of accessory penalties
provided by law. They also challenged the order to pay fines of P500.00 each, P10,000.00 actual and compensatory
damages, P30,000.00 moral damages, P10,000.00 exemplary damages, and the costs of the suit.

The dispositive portion of the decision of the respondent Court of Appeals states:

WHEREFORE, we hereby modify the judgment appealed from in the sense that the appellants are
acquitted on ground of reasonable doubt. but they are ordered to pay jointly and severally to
complainants the amount of P9,600.00, as actual damages.

The petitioners filed a motion for reconsideration contending that the acquittal of the defendants-appellants as to
criminal liability results in the extinction of their civil liability. The Court of Appeals denied the motion holding that:

xxx xxx xxx

... appellants' acquittal was based on reasonable doubt whether the crime of coercion was
committed, not on facts that no unlawful act was committed; as their taking the law into their hands,
destructing (sic) complainants' properties is unlawful, and, as evidence on record established that
complainants suffered actual damages, the imposition of actual damages is correct.

Consequently, the petitioners filed this special civil action, contending that:

THE COURT OF APPEALS COMMITTED A GRAVE ERROR OF LAW OR GRAVELY ABUSED ITS DISCRETION
IN IMPOSING UPON PETITIONERS PAYMENT OF DAMAGES TO COMPLAINANTS AFTER ACQUITTING
PETITIONERS OF THE CRIME CHARGED FROM WHICH SAID LIABILITY AROSE.

II

THE COURT OF APPEALS ERRED IN HOLDING IN ITS RESOLUTION DATED DECEMBER 26, 1974 THAT
SINCE APPELLANTS' ACQUITTAL WAS BASED ON REASONABLE DOUBT, NOT ON FACTS THAT NO
UNLAWFUL ACT WAS COMMITTED, THE IMPOSITION OF ACTUAL DAMAGES IS CORRECT.

III

THE COURT OF APPEALS COMMITTED A LEGAL INCONSISTENCY, IF NOT PLAIN JUDICIAL ERROR, IN
HOLDING IN ITS APPEALED RESOLUTION THAT PETITIONERS COMMITTED AN UNLAWFUL ACT, THAT
IS TAKING THE LAW INTO THEIR HANDS, DESTRUCTING (sic) 'COMPLAINANTS' PROPERTIES', AFTER
 HOLDING IN ITS MAIN DECISION OF NOVEMBER 6,1974 THAT THE ACTS FOR WHICH THEY WERE
CHARGED DID NOT CONSTITUTE GRAVE COERCION AND THEY WERE NOT CHARGED OF ANY OTHER
CRIME.

IV

THE COURT OF APPEALS ERRED IN ORDERING THE PETITIONERS HEREIN, APPELLANTS IN CA-G.R. NO.
13456CR, JOINTLY AND SEVERALLY, TO PAY COMPLAINANTS P9,600.00 IN SUPPOSED ACTUAL
DAMAGES.

The issue posed in the instant proceeding is whether or not the respondent court committed a reversible error in
requiring the petitioners to pay civil indemnity to the complainants after acquitting them from the criminal charge.

Petitioners maintain the view that where the civil liability which is included in the criminal action is that arising from
and as a consequence of the criminal act, and the defendant was acquitted in the criminal case, (no civil liability
arising from the criminal case), no civil liability arising from the criminal charge could be imposed upon him. They cite
precedents to the effect that the liability of the defendant for the return of the amount received by him may not be
enforced in the criminal case but must be raised in a separate civil action for the recovery of the said amount (People
v. Pantig, 97 Phil. 748; following the doctrine laid down in Manila Railroad Co. v. Honorable Rodolfo Baltazar, 49 O.G.
3874; Pueblo contra Abellera, 69 Phil. 623; People v. Maniago 69 Phil. 496; People v. Miranda, 5 SCRA 1067; Aldaba v.
Elepafio 116 Phil. 457). In the case before us, the petitioners were acquitted not because they did not commit the
acts stated in the charge against them. There is no dispute over the forcible opening of the market stall, its
demolition with axes and other instruments, and the carting away of the merchandize. The petitioners were
acquitted because these acts were denominated coercion when they properly constituted some other offense such
as threat or malicious mischief.

The respondent Court of Appeals stated in its decision:

For a complaint to prosper under the foregoing provision, the violence must be employed against the
person, not against property as what happened in the case at bar. ...

xxx xxx xxx

The next problem is: May the accused be convicted of an offense other than coercion?

From all appearances, they should have been prosecuted either for threats or malicious mischief. But
the law does not allow us to render judgment of conviction for either of these offenses for the
reason that they were not indicted for, these offenses. The information under which they were
prosecuted does not allege the elements of either threats or malicious mischief. Although the
information mentions that the act was by means of threats', it does not allege the particular threat
made. An accused person is entitled to be informed of the nature of the acts imputed to him before
he can be made to enter into trial upon a valid information.

We rule that the crime of grave coercion has not been proved in accordance with law.

While appellants are entitled to acquittal they nevertheless are liable for the actual damages suffered
by the complainants by reason of the demolition of the stall and loss of some of their properties. The
extinction of the penal action does not carry with it that of the civil, unless the extinction proceeds
from a declaration in a final judgment that the fact from which the civil might arise did not exist.
(Rule 111, Sec. 3 (c), Rev. Rules of Court; Laperal v. Aliza, 51 OG.R. 1311, People v. Velez, 44 OG.
1811). In the instant case, the fact from which the civil might arise, namely, the demolition of the
stall and loss of the properties contained therein; exists, and this is not denied by the accused. And
since there is no showing that the complainants have reserved or waived their right to institute a
separate civil action, the civil aspect therein is deemed instituted with the criminal action. (Rule 111,
Sec. 1, Rev. Rules of Court).

xxx xxx xxx

Section 1 of Rule 111 of the Rules of Court states the fundamental proposition that when a criminal action is
instituted, the civil action for recovery of civil liability arising from the offense charged is impliedly instituted with it.
There is no implied institution when the offended party expressly waives the civil action or reserves his right to
institute it separately. (Morte Sr. v. Alvizo, Jr., 101 SCRA 221).

The extinction of the civil action by reason of acquittal in the criminal case refers exclusively to civil liability ex delicto
founded on Article 100 of the Revised Penal Code. (Elcano v. Hill, 77 SCRA 98; Virata v. Ochoa, 81 SCRA 472). In other
words, the civil liability which is also extinguished upon acquittal of the accused is the civil liability arising from the
act as a crime.

As easily as 1942, the Supreme Court speaking through Justice Jorge Bocobo in Barredo v. Garcia, et at. 73 Phil. 607
laid down the rule that the same punishable act or omission can create two kinds of civil liabilities against the
accused and, where provided by law, his employer. 'There is the civil liability arising from the act as a crime and the
liability arising from the same act as a quasi-delict. Either one of these two types of civil liability may be enforced
against the accused, However, the offended party cannot recover damages under both types of liability. For instance,
in cases of criminal negligence or crimes due to reckless imprudence, Article 2177 of the Civil Code provides:

Responsibility for fault or negligence under the preceding article is entirely separate and distinct
from the civil liability arising from negligence under the Penal Code. But the plaintiff cannot recover
damages twice for the same act or omission of the defendant.

Section 3 (c) of Rule 111 specifically provides that:

Sec. 3. Other civil actions arising from offenses. — In all cases not included in the preceding section
the following rules shall be observed:

xxx xxx xxx

xxx xxx xxx

(c) Extinction of the penal action does not carry with it extinction of the civil, unless the extinction
proceeds from a declaration in a final judgment that the fact from which the civil might arise did not
exist. In other cases, the person entitled to the civil action may institute it in the Jurisdiction and in
the manner provided by law against the person who may be liable for restitution of the thing and
reparation or indemnity for the damage suffered.

The judgment of acquittal extinguishes the liability of the accused for damages only when it includes a declaration
that the facts from which the civil might arise did not exist. Thus, the civil liability is not extinguished by acquittal
where the acquittal is based on reasonable doubt (PNB v. Catipon, 98 Phil. 286) as only preponderance of evidence is
required in civil cases; where the court expressly declares that the liability of the accused is not criminal but only civil
in nature (De Guzman v. Alvia, 96 Phil. 558; People v. Pantig, supra) as, for instance, in the felonies of estafa, theft,
and malicious mischief committed by certain relatives who thereby incur only civil liability (See Art. 332, Revised
Penal Code); and, where the civil liability does not arise from or is not based upon the criminal act of which the
accused was acquitted (Castro v. Collector of Internal Revenue, 4 SCRA 1093; See Regalado, Remedial Law
Compendium, 1983 ed., p. 623). Article 29 of the Civil Code also provides that:

When the accused in a criminal prosecution is acquitted on the ground that his guilt has not been
proved beyond reasonable doubt, a civil action for damages for the same act or omission may be
instituted. Such action requires only a preponderance of evidence. Upon motion of the defendant,
the court may require the plaintiff to file a bond to answer for damages in case the complaint should
be found to be malicious.

If in a criminal case the judgment of acquittal is based upon reasonable doubt, the court shall so
declare. In the absence of any declaration to that effect, it may be inferred from the text of the
decision whether or not the acquittal is due to that ground.

More recently, we held that the acquittal of the defendant in the criminal case would not constitute an obstacle to
the filing of a civil case based on the same acts which led to the criminal prosecution:

... The finding by the respondent court that he spent said sum for and in the interest of the Capiz
Agricultural and Fishery School and for his personal benefit is not a declaration that the fact upon
which Civil Case No. V-3339 is based does not exist. The civil action barred by such a declaration is
the civil liability arising from the offense charged, which is the one impliedly instituted with the
 criminal action. (Section 1, Rule III, Rules of Court.) Such a declaration would not bar a civil action
filed against an accused who had been acquitted in the criminal case if the criminal action is
predicated on factual or legal considerations other than the commission of the offense charged. A
person may be acquitted of malversation where, as in the case at bar, he could show that he did not
misappropriate the public funds in his possession, but he could be rendered liable to restore said
funds or at least to make a proper accounting thereof if he shall spend the same for purposes which
are not authorized nor intended, and in a manner not permitted by applicable rules and regulations.
(Republic v. Bello, 120 SCRA 203)

There appear to be no sound reasons to require a separate civil action to still be filed considering that the facts to be
proved in the civil case have already been established in the criminal proceedings where the accused was acquitted.
Due process has been accorded the accused. He was, in fact, exonerated of the criminal charged. The constitutional
presumption of innocence called for more vigilant efforts on the part of prosecuting attorneys and defense counsel, a
keener awareness by all witnesses of the serious implications of perjury, and a more studied consideration by the
judge of the entire records and of applicable statutes and precedents. To require a separate civil action simply
because the accused was acquitted would mean needless clogging of court dockets and unnecessary duplication of
litigation with all its attendant loss of time, effort, and money on the part of all concerned.

The trial court found the following facts clearly established by the evidence adduced by both the prosecution and the
defense:

xxx xxx xxx

(9) In the morning of February 8, 1964, then Chief Galdones, complying with the instructions
contained in said Memorandum No. 32 of the Mayor, and upon seeing that Antonio Vergara had not
vacated the premises in question, with the aid of his policemen, forced upon the store or stall and
ordered the removal of the goods inside the store of Vergara, at the same time taking inventory of
the goods taken out, piled them outside in front of the store and had it cordoned with a rope, and
after all the goods were taken out from the store, ordered the demolition of said stall of Antonio
Vergara. Since then up to the trial of this case, the whereabouts of the goods taken out from the
store nor the materials of the demolished stall have not been made known.

The respondent Court of Appeals made a similar finding that:

On the morning of February 8th, because the said Vergaras had not up to that time complied with
the order to vacate, the co-accused Chief of Police Galdones and some members of his police force,
went to the market and, using ax, crowbars and hammers, demolished the stall of the Vergaras who
were not present or around, and after having first inventoried the goods and merchandise found
therein, they had them brought to the municipal building for safekeeping. Inspite of notice served
upon the Vergaras to take possession of the goods and merchandise thus taken away, the latter
refused to do so.

The loss and damage to the Vergaras as they evaluated them were:

Cost of stall construction P1,300.00

Value of furniture and equipment

judgment destroyed 300.00

Value of goods and equipment taken 8,000.00

P9,600.00

It is not disputed that the accused demolished the grocery stall of the complainants Vergaras and
carted away its contents. The defense that they did so in order to abate what they considered a
nuisance per se is untenable, This finds no support in law and in fact. The couple has been paying
rentals for the premises to the government which allowed them to lease the stall. It is, therefore,
farfetched to say that the stall was a nuisance per se which could be summarily abated.

The petitioners, themselves, do not deny the fact that they caused the destruction of the complainant's market stall
and had its contents carted away. They state:
 On February 8, 1964, despite personal pleas on Vergaras by the Mayor to vacate the passageways of
Market Building No. 3, the Vergaras were still in the premises, so the petitioners Chief of Police and
members of the Police Force of Jose Panganiban, pursuant to the Mayor' 6 directives, demolished
the store of the Vergaras, made an inventory of the goods found in said store, and brought these
goods to the municipal building under the custody of the Municipal Treasurer, ...

The only supposed obstacle is the provision of Article 29 of the Civil Code, earlier cited, that "when the accused in a
criminal prosecution is acquitted on the ground that his guilt has not been proved beyond reasonable doubt, a civil
action for damages for the same act or omission may be instituted." According to some scholars, this provision of
substantive law calls for a separate civil action and cannot be modified by a rule of remedial law even in the interests
of economy and simplicity and following the dictates of logic and common sense.

As stated by retired Judge J. Cezar Sangco:

... if the Court finds the evidence sufficient to sustain the civil action but inadequate to justify a
conviction in the criminal action, may it render judgment acquitting the accused on reasonable
doubt, but hold him civilly liable nonetheless? An affirmative answer to this question would be
consistent with the doctrine that the two are distinct and separate actions, and win (a) dispense with
the reinstituting of the same civil action, or one based on quasi-delict or other independent civil
action, and of presenting the same evidence: (b) save the injured party unnecessary expenses in the
prosecution of the civil action or enable him to take advantage of the free services of the fiscal; and
(c) otherwise resolve the unsettling implications of permitting the reinstitution of a separate civil
action whether based on delict, or quasi-delict, or other independent civil actions.

... But for the court to be able to adjudicate in the manner here suggested, Art. 29 of the Civil Code
should be amended because it clearly and expressly provides that the civil action based on the same
act or omission may only be instituted in a separate action, and therefore, may not inferentially be
resolved in the same criminal action. To dismiss the civil action upon acquittal of the accused and
disallow the reinstitution of any other civil action, would likewise render, unjustifiably, the acquittal
on reasonable doubt without any significance, and would violate the doctrine that the two actions
are distinct and separate.

In the light of the foregoing exposition, it seems evident that there is much sophistry and no
pragmatism in the doctrine that it is inconsistent to award in the same proceedings damages against
the accused after acquitting him on reasonable doubt. Such doctrine must recognize the distinct and
separate character of the two actions, the nature of an acquittal on reasonable doubt, the vexatious
and oppressive effects of a reservation or institution of a separate civil action, and that the injured
party is entitled to damages not because the act or omission is punishable but because he was
damaged or injured thereby (Sangco, Philippine Law on Torts and Damages, pp. 288-289).

We see no need to amend Article 29 of the Civil Code in order to allow a court to grant damages despite a judgment
of acquittal based on reasonable doubt. What Article 29 clearly and expressly provides is a remedy for the plaintiff in
case the defendant has been acquitted in a criminal prosecution on the ground that his guilt has not been proved
beyond reasonable doubt. It merely emphasizes that a civil action for damages is not precluded by an acquittal for
the same criminal act or omission. The Civil Code provision does not state that the remedy can be availed of only in a
separate civil action. A separate civil case may be filed but there is no statement that such separate filing is the only
and exclusive permissible mode of recovering damages.

There is nothing contrary to the Civil Code provision in the rendition of a judgment of acquittal and a judgment
awarding damages in the same criminal action. The two can stand side by side. A judgment of acquittal operates to
extinguish the criminal liability. It does not, however, extinguish the civil liability unless there is clear showing that
the act from which civil liability might arise did not exist.

A different conclusion would be attributing to the Civil Code a trivial requirement, a provision which imposes an
uncalled for burden before one who has already been the victim of a condemnable, yet non-criminal, act may be
accorded the justice which he seeks.

We further note the rationale behind Art. 29 of the Civil Code in arriving at the intent of the legislator that they could
not possibly have intended to make it more difficult for the aggrieved party to recover just compensation by making a
separate civil action mandatory and exclusive:
 The old rule that the acquittal of the accused in a criminal case also releases him from civil liability is
one of the most serious flaws in the Philippine legal system. It has given rise to numberless instances
of miscarriage of justice, where the acquittal was due to a reasonable doubt in the mind of the court
as to the guilt of the accused. The reasoning followed is that inasmuch as the civil responsibility is
derived from the the criminal offense, when the latter is not proved, civil liability cannot be
demanded.

This is one of those cases where confused thinking leads to unfortunate and deplorable
consequences. Such reasoning fails to draw a clear line of demarcation between criminal liability and
civil responsibility, and to determine the logical result of the distinction. The two liabilities are
separate and distinct from each other. One affects the social order and the other, private rights. One
is for the punishment or correction of the offender while the other is for reparation of damages
suffered by the aggrieved party... it is just and proper that, for the purposes of the imprisonment of
or fine upon the accused, the offense should be proved beyond reasonable doubt. But for the
purpose of indemnifying the complaining party, why should the offense also be proved beyond
reasonable doubt? Is not the invasion or violation of every private right to be proved only by
preponderance of evidence? Is the right of the aggrieved person any less private because the
wrongful act is also punishable by the criminal law? (Code Commission, pp. 45-46).

A separate civil action may be warranted where additional facts have to be established or more evidence must be
adduced or where the criminal case has been fully terminated and a separate complaint would be just as efficacious
or even more expedient than a timely remand to the trial court where the criminal action was decided for further
hearings on the civil aspects of the case. The offended party may, of course, choose to file a separate action. These
do not exist in this case. Considering moreover the delays suffered by the case in the trial, appellate, and review
stages, it would be unjust to the complainants in this case to require at this time a separate civil action to be filed.

With this in mind, we therefore hold that the respondent Court of Appeals did not err in awarding damages despite a
judgment of acquittal.

WHEREFORE, we hereby AFFIRM the decision of the respondent Court of Appeals and dismiss the petition for lack of
merit.

SO ORDERED.

DR. NINEVETCH CRUZ vs. COURT OF APPEALS and LYDIA UMALI [G.R. No. 122445 November 18, 1997]

Doctors are protected by a special rule of law. They are not guarantors of care. They do not even warrant a good
result. They are not insurers against mishaps or unusual consequences. Furthermore they are not liable for honest
mistakes of judgment . . . 1

The present case against petitioner is in the nature of a medical malpractice suit, which in simplest terms is the type
of claim which a victim has available to him or her to redress a wrong committed by a medical professional which has
caused bodily harm. 2 In this jurisdiction, however, such claims are most often brought as a civil action for damages
under Article 2176 of the Civil Code, 3 and in some instances, as a criminal case under Article 365 of the Revised Penal
Code 4 with which the civil action for damages is impliedly instituted. It is via the latter type of action that the heirs of
the deceased sought redress for the petitioner's alleged imprudence and negligence in treating the deceased thereby
causing her death. The petitioner and one Dr. Lina Ercillo who was the attending anaesthesiologist during the
operation of the deceased were charged with "reckless imprudence and negligence resulting to (sic) homicide" in an
information which reads:

That on or about March 23, 1991, in the City of San Pablo, Republic of the Philippines and within the
jurisdiction of this Honorable Court, the accused above named, being then the attending
anaesthesiologist and surgeon, respectively, did then and there, in a negligence (sic), careless,
imprudent, and incompetent manner, and failing to supply or store sufficient provisions and facilities
necessary to meet any and all exigencies apt to arise before, during and/or after a surgical operation
causing by such negligence, carelessness, imprudence, and incompetence, and causing by such
failure, including the lack of preparation and foresight needed to avert a tragedy, the untimely death
of said Lydia Umali on the day following said surgical operation. 5

Trial ensued after both the petitioner and Dr. Lina Ercillo pleaded not guilty to the above-mentioned charge. On
March 4, 1994, the Municipal Trial Court in Cities (MTCC) of San Pablo City rendered a decision, the dispositive
portion of which is hereunder quoted as follows:

WHEREFORE, the court finds the accused Dra. Lina Ercillo not guilty of the offense charged for
insufficiency of evidence while her co-accused Dra. Ninevetch Cruz is hereby held responsible for the
death of Lydia Umali on March 24, 1991, and therefore guilty under Art. 365 of the Revised Penal
Code, and she is hereby sentenced to suffer the penalty of 2 months and 1 day imprisonment of
arresto mayor with costs. 6

The petitioner appealed her conviction to the Regional Trial Court (RTC) which affirmed in toto the decision
of the MTCC 7 prompting the petitioner to file a petition for review with the Court of Appeals but to no avail.
Hence this petition for review on certiorari assailing the decision promulgated by the Court of Appeals on
October 24, 1995 affirming petitioner's conviction with modification that she is further directed to pay the
heirs of Lydia Umali P50,000.00 as indemnity for her death. 8

In substance, the petition brought before this Court raises the issue of whether or not petitioner's conviction
of the crime of reckless imprudence resulting in homicide, arising from an alleged medical malpractice, is
supported by the evidence on record.

First the antecedent facts.

On March 22, 1991, prosecution witness, Rowena Umali De Ocampo, accompanied her mother to the Perpetual Help
Clinic and General Hospital situated in Balagtas Street, San Pablo City, Laguna. They arrived at the said hospital at
around 4:30 in the afternoon of the same day. 9 Prior to
March 22, 1991, Lydia was examined by the petitioner who found a "myoma" 10 in her uterus, and scheduled her for a
hysterectomy operation on March 23,
1991. 11 Rowena and her mother slept in the clinic on the evening of March 22, 1991 as the latter was to be operated
on the next day at 1:00 o'clock in the afternoon. 12 According to Rowena, she noticed that the clinic was untidy and
the window and the floor were very dusty prompting her to ask the attendant for a rag to wipe the window and the
floor with. 13 Because of the untidy state of the clinic, Rowena tried to persuade her mother not to proceed with the
operation. 14 The following day, before her mother was wheeled into the operating room, Rowena asked the
petitioner if the operation could be postponed. The petitioner called Lydia into her office and the two had a
conversation. Lydia then informed Rowena that the petitioner told her that she must be operated on as scheduled. 15

Rowena and her other relatives, namely her husband, her sister and two aunts waited outside the operating room
while Lydia underwent operation. While they were waiting, Dr. Ercillo went out of the operating room and instructed
them to buy tagamet ampules which Rowena's sister immediately bought. About one hour had passed when Dr.
Ercillo came out again this time to ask them to buy blood for Lydia. They bought type "A" blood from the St. Gerald
Blood Bank and the same was brought by the attendant into the operating room. After the lapse of a few hours, the
petitioner informed them that the operation was finished. The operating staff then went inside the petitioner's clinic
to take their snacks. Some thirty minutes after, Lydia was brought out of the operating room in a stretcher and the
petitioner asked Rowena and the other relatives to buy additional blood for Lydia. Unfortunately, they were not able
to comply with petitioner's order as there was no more type "A" blood available in the blood bank. Thereafter, a
person arrived to donate blood which was later transfused to Lydia. Rowena then noticed her mother, who was
attached to an oxygen tank, gasping for breath. Apparently the oxygen supply had run out and Rowena's husband
together with the driver of the accused had to go to the San Pablo District Hospital to get oxygen. Lydia was given the
fresh supply of oxygen as soon as it arrived. 16 But at around 10:00 o'clock P.M. she went into shock and her blood
pressure dropped to 60/50. Lydia's unstable condition necessitated her transfer to the San Pablo District Hospital so
she could be connected to a respirator and further examined. 17 The transfer to the San Pablo District Hospital was
without the prior consent of Rowena nor of the other relatives present who found out about the intended transfer
only when an ambulance arrived to take Lydia to the San Pablo District Hospital. Rowena and her other relatives then
boarded a tricycle and followed the ambulance. 18

Upon Lydia's arrival at the San Pablo District Hospital, she was wheeled into the operating room and the petitioner
and Dr. Ercillo re-operated on her because there was blood oozing from the abdominal incision. 19 The attending
physicians summoned Dr. Bartolome Angeles, head of the Obstetrics and Gynecology Department of the San Pablo
District Hospital. However, when Dr. Angeles arrived, Lydia was already in shock and possibly dead as her blood
pressure was already 0/0. Dr. Angeles then informed petitioner and Dr. Ercillo that there was nothing he could do to
help save the patient. 20 While the petitioner was closing the abdominal wall, the patient died. 21 Thus, on March 24,
1991, at 3:00 o'clock in the morning, Lydia Umali was pronounced dead. Her death certificate states "shock" as the
immediate cause of death and "Disseminated Intravascular Coagulation (DIC)" as the antecedent cause. 22

In convicting the petitioner, the MTCC found the following circumstances as sufficient basis to conclude that she was
indeed negligent in the performance of the operation:

. . . , the clinic was untidy, there was lack of provision like blood and oxygen to prepare for any
contingency that might happen during the operation. The manner and the fact that the patient was
brought to the San Pablo District Hospital for reoperation indicates that there was something wrong
in the manner in which Dra. Cruz conducted the operation. There was no showing that before the
operation, accused Dra. Cruz had conducted a cardio pulmonary clearance or any typing of the blood
of the patient. It was (sic) said in medical parlance that the "the abdomen of the person is a temple
of surprises" because you do not know the whole thing the moment it was open (sic) and surgeon
must be prepared for any eventuality thereof. The patient (sic) chart which is a public document was
not presented because it is only there that we could determine the condition of the patient before
the surgery. The court also noticed in Exh. "F-1" that the sister of the deceased wished to postpone
the operation but the patient was prevailed upon by Dra. Cruz to proceed with the surgery. The court
finds that Lydia Umali died because of the negligence and carelessness of the surgeon Dra. Ninevetch
Cruz because of loss of blood during the operation of the deceased for evident unpreparedness and
for lack of skill, the reason why the patient was brought for operation at the San Pablo City District
Hospital. As such, the surgeon should answer for such negligence. With respect to Dra. Lina Ercillo,
the anaesthesiologist, there is no evidence to indicate that she should be held jointly liable with Dra.
Cruz who actually did the operation. 23

The RTC reiterated the abovementioned findings of the MTCC and upheld the latter's declaration of "incompetency,
negligence and lack of foresight and skill of appellant (herein petitioner) in handling the subject patient before and
after the operation." 24 And likewise affirming the petitioner's conviction, the Court of Appeals echoed similar
observations, thus:

. . . While we may grant that the untidiness and filthiness of the clinic may not by itself indicate
negligence, it nevertheless shows the absence of due care and supervision over her subordinate
employees. Did this unsanitary condition permeate the operating room? Were the surgical
instruments properly sterilized? Could the conditions in the OR have contributed to the infection of
the patient? Only the petitioner could answer these, but she opted not to testify. This could only give
rise to the presumption that she has nothing good to testify on her defense. Anyway, the alleged
"unverified statement of the prosecution witness" remains unchallenged and unrebutted.

Likewise undisputed is the prosecution's version indicating the following facts: that the accused
asked the patient's relatives to buy Tagamet capsules while the operation was already in progress;
that after an hour, they were also asked to buy type "A" blood for the patient; that after the surgery,
they were again asked to procure more type "A" blood, but such was not anymore available from the
source; that the oxygen given to the patient was empty; and that the son-in-law of the patient,
together with a driver of the petitioner, had to rush to the San Pablo City District Hospital to get the
 much-needed oxygen. All these conclusively show that the petitioner had not prepared for any
unforeseen circumstances before going into the first surgery, which was not emergency in nature,
but was elective or pre-scheduled; she had no ready antibiotics, no prepared blood, properly typed
and cross-matched, and no sufficient oxygen supply.

Moreover, there are a lot of questions that keep nagging Us. Was the patient given any cardio-
pulmonary clearance, or at least a clearance by an internist, which are standard requirements before
a patient is subjected to surgery. Did the petitioner determine as part of the pre-operative
evaluation, the bleeding parameters of the patient, such as bleeding time and clotting time? There is
no showing that these were done. The petitioner just appears to have been in a hurry to perform the
operation, even as the family wanted a postponement to April 6, 1991. Obviously, she did not
prepare the patient; neither did she get the family's consent to the operation. Moreover, she did not
prepare a medical chart with instructions for the patient's care. If she did all these, proof thereof
should have been offered. But there is none. Indeed, these are overwhelming evidence of
recklessness and imprudence. 25

This Court, however, holds differently and finds the foregoing circumstances insufficient to sustain a judgment of
conviction against the petitioner for the crime of reckless imprudence resulting in homicide. The elements of reckless
imprudence are: (1) that the offender does or fails to do an act; (2) that the doing or the failure to do that act is
voluntary; (3) that it be without malice; (4) that material damage results from the reckless imprudence; and (5) that
there is inexcusable lack of precaution on the part of the offender, taking into consideration his employment or
occupation, degree of intelligence, physical condition, and other circumstances regarding persons, time and place.

Whether or not a physician has committed an "inexcusable lack of precaution" in the treatment of his patient is to be
determined according to the standard of care observed by other members of the profession in good standing under
similar circumstances bearing in mind the advanced state of the profession at the time of treatment or the present
state of medical science. 26 In the recent case of Leonila Garcia-Rueda v. Wilfred L. Pascasio, et al., 27 this Court stated
that in accepting a case, a doctor in effect represents that, having the needed training and skill possessed by
physicians and surgeons practicing in the same field, he will employ such training, care and skill in the treatment of
his patients. He therefore has a duty to use at least the same level of care that any other reasonably competent
doctor would use to treat a condition under the same circumstances. It is in this aspect of medical malpractice that
expert testimony is essential to establish not only the standard of care of the profession but also that the physician's
conduct in the treatment and care falls below such standard. 28 Further, inasmuch as the causes of the injuries
involved in malpractice actions are determinable only in the light of scientific knowledge, it has been recognized that
expert testimony is usually necessary to support the conclusion as to causation. 29

Immediately apparent from a review of the records of this case is the absence of any expert testimony on the matter
of the standard of care employed by other physicians of good standing in the conduct of similar operations. The
prosecution's expert witnesses in the persons of Dr. Floresto Arizala and Dr. Nieto Salvador, Jr. of the National Bureau
of Investigation (NBI) only testified as to the possible cause of death but did not venture to illuminate the court on
the matter of the standard of care that petitioner should have exercised.

All three courts below bewail the inadequacy of the facilities of the clinic and its untidiness; the lack of provisions
such as blood, oxygen, and certain medicines; the failure to subject the patient to a cardio-pulmonary test prior to
the operation; the omission of any form of blood typing before transfusion; and even the subsequent transfer of
Lydia to the San Pablo Hospital and the reoperation performed on her by the petitioner. But while it may be true that
the circumstances pointed out by the courts below seemed beyond cavil to constitute reckless imprudence on the
part of the surgeon, this conclusion is still best arrived at not through the educated surmises nor conjectures of
laymen, including judges, but by the unquestionable knowledge of expert witnesses. For whether a physician or
surgeon has exercised the requisite degree of skill and care in the treatment of his patient is, in the generality of
cases, a matter of expert opinion. 30 The deference of courts to the expert opinion of qualified physicians stems from
its realization that the latter possess unusual technical skills which laymen in most instances are incapable of
intelligently evaluating. 31 Expert testimony should have been offered to prove that the circumstances cited by the
courts below are constitutive of conduct falling below the standard of care employed by other physicians in good
standing when performing the same operation. It must be remembered that when the qualifications of a physician
are admitted, as in the instant case, there is an inevitable presumption that in proper cases he takes the necessary
precaution and employs the best of his knowledge and skill in attending to his clients, unless the contrary is
sufficiently established. 32 This presumption is rebuttable by expert opinion which is so sadly lacking in the case at
bench.

Even granting arguendo that the inadequacy of the facilities and untidiness of the clinic; the lack of provisions; the
failure to conduct pre-operation tests on the patient; and the subsequent transfer of Lydia to the San Pablo Hospital
and the reoperation performed on her by the petitioner do indicate, even without expert testimony, that petitioner
was recklessly imprudent in the exercise of her duties as a surgeon, no cogent proof exists that any of these
circumstances caused petitioner's death. Thus, the absence of the fourth element of reckless imprudence: that the
injury to the person or property was a consequence of the reckless imprudence.

In litigations involving medical negligence, the plaintiff has the burden of establishing appellant's negligence and for a
reasonable conclusion of negligence, there must be proof of breach of duty on the part of the surgeon as well as a
causal connection of such breach and the resulting death of his patient. 33 In Chan Lugay v. St. Luke's Hospital,
Inc., 34 where the attending physician was absolved of liability for the death of the complainant's wife and newborn
baby, this Court held that:

In order that there may be a recovery for an injury, however, it must be shown that the "injury for
which recovery is sought must be the legitimate consequence of the wrong done; the connection
between the negligence and the injury must be a direct and natural sequence of events, unbroken by
intervening efficient causes." In other words, the negligence must be the proximate cause of the
injury. For, "negligence, no matter in what it consists, cannot create a right of action unless it is the
proximate cause of the injury complained of ." And "the proximate cause of an injury is that cause,
which, in natural and continuous sequence, unbroken by any efficient intervening cause, produces
the injury, and without which the result would not have occurred." 35 (Emphasis supplied.)

Dr. Arizala who conducted an autopsy on the body of the deceased summarized his findings as follows:

Atty. Cachero:

Q. You mentioned about your Autopsy Report which has been marked as Exh. "A-1-
b". There appears here a signature above the typewritten name Floresto Arizala, Jr.,
whose signature is that?

A. That is my signature, sir.

Q. Do you affirm the truth of all the contents of Exh. "A-1-b"?

A. Only as to the autopsy report no. 91-09, the time and place and everything after
the post mortem findings, sir.

Q. You mentioned on your "Post Mortem Findings" about surgical incision, 14:0 cm.,
infraumbilical area, anterior abdominal area, midline, will you please explain that in
your own language?

A. There was incision wound (sic) the area just below the navel, sir.

Q. And the last paragraph of the postmortem findings which I read: Uterus, pear-
shaped and pale measuring 7.5 x 5.5 x 5.0 cm. with some surface nodulation of the
fundic area posteriorly. Cut-section shows diffusely pale myometrium with areas of
streak induration. The ovaries and adnexal structures are missing with the raw
surfaces patched with clotted blood. Surgical sutures were noted on the operative
site.

Intestines and mesenteries are pale with blood clots noted between the mesentric
folds.

Hemoperitoneum: 300 s.s.,

right paracolic gutter,
50 c.c., left paracolic gutter
200 c.c., mesentric area,
 100 c.c., right pelvic gutter
stomach empty.

Other visceral organs, pale.,

will you please explain that on (sic) your own language or in ordinary. . . . . . . . . . . .

A. There was a uterus which was not attached to the adnexal structures namely
ovaries which were not present and also sign of previous surgical operation and
there were (sic) clotted blood, sir.

Q. How about the ovaries and adnexal structures?

A. They are missing, sir.

Q. You mean to say there are no ovaries?

A. During that time there are no ovaries, sir.

Q. And there were likewise sign of surgical sutures?

A. Yes, sir.

Q. How about the intestines and mesenteries are place (sic) with blood clots noted
between the mesenteric folds, will you please explain on (sic) this?

A. In the peritoneal cavity, they are mostly perritonial blood . . . . . . . .

Q. And what could have caused this blood?

A. Well, ordinarily blood is found inside the blood vessel. Blood were (sic) outside as
a result of the injuries which destroyed the integrity of the vessel allowing blood to
sip (sic) out, sir.

Q. By the nature of the postmortem findings indicated in Exh. A-1-B, can you tell the
court the cause of death?

A. Yes, sir. The cause of death is: Gross findings are compatible with hemorrhagic
shock.

Q. Can you tell the us what could have caused this hemorrhagic shock?

A. Well hemorrhagic shock is the result of blood loss.

Q. What could have the effect of that loss of blood?

A. Unattended hemorrhage, sir. 36 (Emphasis supplied.)

The foregoing was corroborated by Dr. Nieto Salvador:

Q. And were you able to determine the cause of death by virtue of the examination
of the specimen submitted by Dr. Arizala?

A. Without knowledge of the autopsy findings it would be difficult for me to

determine the cause of death, sir.

Q. Have you also examined the post mortem of Dr. Arizala?

A. Yes, sir, and by virtue of the autopsy report in connection with your pathology
report.

Q. What could have caused the death of the victim?

A. This pathologic examination are (sic) compatible with the person who died, sir.

Q. Will you explain to us the meaning of hemorrhagic compatible?

 A. It means that a person died of blood loss. Meaning a person died of non-
replacement of blood and so the victim before she died there was shock of diminish
of blood of the circulation. She died most probably before the actual complete blood
loss, sir.

Court: Is it possible doctor that the loss of the blood was due on (sic) operation?

A. Based on my pathologist finding, sir.

Q. What could have caused this loss of blood?

A. Many, sir. A patient who have undergone surgery. Another may be a blood vessel
may be cut while on operation and this cause (sic) bleeding, or may be set in the
course of operation, or may be (sic) he died after the operation. Of course there are
other cause (sic).

Atty. Cachero:

Q. Especially so doctor when there was no blood replacement?

A. Yes, sir. 37 (Emphasis supplied.)

The testimonies of both doctors establish hemorrhage or hemorrhagic shock as the cause of death. However, as
likewise testified to by the expert witnesses in open court, hemorrhage or hemorrhagic shock during surgery may be
caused by several different factors. Thus, Dr. Salvador's elaboration on the matter:

Atty. Pascual:

Q. Doctor, among the causes of hemorrhage that you mentioned you said that it
could be at the moment of operation when one losses (sic) control of the presence,
is that correct? During the operation there is lost (sic) of control of the cut vessel?

A. Yes, sir.

Q. Or there is a failure to ligate a vessel of considerable size?

A. Yes, sir.

Q. Or even if the vessel were ligated the knot may have slipped later on?

A. Yes, sir.

Q. And you also mentioned that it may be possible also to some clotting defect, is
that correct?

A. May be (sic). 38 (Emphasis supplied).

Defense witness, Dr. Bu C. Castro also gave the following expert opinion:

Q. Doctor even a patient after an operations (sic) would suffer hemorrage what
would be the possible causes of such hemorrage (sic)?

A. Among those would be what we call Intravascular Coagulation and this is the
reason for the bleeding, sir, which cannot be prevented by anyone, it will happen to
anyone, anytime and to any persons (sic), sir.

COURT:

What do you think of the cause of the bleeding, the cutting or the operations done in
the body?

A. Not related to this one, the bleeding here is not related to any cutting or
operation that I (sic) have done.
 Q. Aside from the DIC what could another causes (sic) that could be the cause for the
hemorrhage or bleeding in a patient by an operations (sic)?

A. In general sir, if there was an operations (sic) and it is possible that the ligature in
the suture was (sic) become (sic) loose, it is (sic) becomes loose if proven..

xxx xxx xxx

Q. If the person who performed an autopsy does not find any untight (sic) clot (sic)
blood vessel or any suture that become (sic) loose the cause of the bleeding could
not be attributed to the fault of the subject?

A. Definitely, sir. 39 (Emphasis supplied.)

According to both doctors, the possible causes of hemorrhage during an operation are: (1) the failure of the surgeon
to tie or suture a cut blood vessel; (2) allowing a cut blood vessel to get out of control; (3) the subsequent loosening
of the tie or suture applied to a cut blood vessel; and (4) and a clotting defect known as DIC. It is significant to state at
this juncture that the autopsy conducted by Dr. Arizala on the body of Lydia did not reveal any untied or unsutured
cut blood vessel nor was there any indication that the tie or suture of a cut blood vessel had become loose thereby
causing the hemorrhage. 40 Hence the following pertinent portion of Dr. Arizala's testimony:

Q: Doctor, in examining these structures did you know whether these were sutured
ligature or plain ligature

A: Ligature, sir.

Q: We will explain that later on. Did you recall if the cut structures were tied by first
suturing it and then tying a knot or the tie was merely placed around the cut
structure and tied?

A: I cannot recall, sir.

Q: As a matter of fact, you cannot recall because you did not even bothered (sic) to
examine, is that correct?

A: Well, I bothered enough to know that they were sutured, sir.

Q: So, therefore, Doctor, you would not know whether any of the cut structures were
not sutured or tied neither were you able to determine whether any loose suture
was found in the peritoneal cavity?

A: I could not recall any loose sutured (sic), sir. 41

On the other hand, the findings of all three doctors do not preclude the probability that DIC caused the hemorrhage
and consequently, Lydia's death. DIC which is a clotting defect creates a serious bleeding tendency and when massive
DIC occurs as a complication of surgery leaving raw surface, major hemorrhage occurs. 42 And as testified to by
defense witness, Dr. Bu C. Castro, hemorrhage due to DIC "cannot be prevented, it will happen to anyone,
anytime." 43 He testified further:

Q. Now, under that circumstance one of the possibility as you mentioned in (sic) DIC?

A. Yes, sir.

Q. And you mentioned that this cannot be prevented?

A. Yes, sir.

Q. Can you even predict if it really happen (sic)?

A. Possible, sir.

Q. Are there any specific findings of autopsy that will tell you whether this patient
suffered among such things as DIC?
 A. Well, I did reserve because of the condition of the patient.

Q. Now, Doctor you said that you went through the record of the deceased Lydia
Umali looking for the chart, the operated (sic) records, the post mortem findings on
the histophanic (sic) examination based on your examination of record, doctor, can
you more or less says (sic) what part are (sic) concerned could have been the caused
(sic) of death of this Lydia Umali?

A. As far as the medical record is concern (sic) the caused (sic) of death is
dessimulated (sic) Intra Vascular Coagulation or the DIC which resulted to
hemorrhage or bleedings, sir.

Q. Doctor based on your findings then there is knowing (sic) the doctor would say
whether the doctor her (sic) has been (sic) fault?

ATTY. MALVEDA:

We will moved (sic) to strike out the (sic) based on finding they just read the chart as
well as the other record.

ATTY. PASCUAL:

Precisely based on this examination.

ATTY. MALVEDA:

Not finding, there was no finding made.

COURT:

He is only reading the record.

ATTY. PASCUAL:

Yes, sir.

A. No, sir, there is no fault on the part of the surgeon, sir. 44

This Court has no recourse but to rely on the expert testimonies rendered by both prosecution and defense
witnesses that substantiate rather than contradict petitioner's allegation that the cause of Lydia's death was DIC
which, as attested to by an expert witness, cannot be attributed to the petitioner's fault or negligence. The
probability that Lydia's death was caused by DIC was unrebutted during trial and has engendered in the mind of this
Court a reasonable doubt as to the petitioner's guilt. Thus, her acquittal of the crime of reckless imprudence resulting
in homicide. While we condole with the family of Lydia Umali, our hands are bound by the dictates of justice and fair
dealing which hold inviolable the right of an accused to be presumed innocent until proven guilty beyond reasonable
doubt. Nevertheless, this Court finds the petitioner civilly liable for the death of Lydia Umali, for while a conviction of
a crime requires proof beyond reasonable doubt, only a preponderance of evidence is required to establish civil
liability. 45

The petitioner is a doctor in whose hands a patient puts his life and limb. For insufficiency of evidence this Court was
not able to render a sentence of conviction but it is not blind to the reckless and imprudent manner in which the
petitioner carried out her duties. A precious life has been lost and the circumstances leading thereto exacerbated the
grief of those left behind. The heirs of the deceased continue to feel the loss of their mother up to the present
time 46 and this Court is aware that no amount of compassion and commiseration nor words of bereavement can
suffice to assuage the sorrow felt for the loss of a loved one. Certainly, the award of moral and exemplary damages in
favor of the heirs of Lydia Umali are proper in the instant case.

WHEREFORE, premises considered, petitioner DR. NINEVETCH CRUZ is hereby ACQUITTED of the crime of reckless
imprudence resulting in homicide but is ordered to pay the heirs of the deceased Lydia Umali the amount of FIFTY
THOUSAND PESOS (P50,000.00) as civil liability, ONE HUNDRED THOUSAND PESOS (P100,000.00) as moral damages,
and FIFTY THOUSAND PESOS (P50,000.00) as exemplary damages.

Let a copy of this decision be furnished to the Professional Regulation Commission (PRC) for appropriate action.
SO ORDERED.

PHILIPPINE RABBIT BUS LINES, INC. vs. PEOPLE OF THE PHILIPPINES [G.R. No. 147703. April 14, 2004]

When the accused-employee absconds or jumps bail, the judgment meted out becomes final and executory. The
employer cannot defeat the finality of the judgment by filing a notice of appeal on its own behalf in the guise of
asking for a review of its subsidiary civil liability. Both the primary civil liability of the accused-employee and the
subsidiary civil liability of the employer are carried in one single decision that has become final and executory.

The Case

Before this Court is a Petition for Review1 under Rule 45 of the Rules of Court, assailing the March 29, 2000 2 and the
March 27, 20013 Resolutions of the Court of Appeals (CA) in CA-GR CV No. 59390. Petitioner’s appeal from the
judgment of the Regional Trial Court (RTC) of San Fernando, La Union in Criminal Case No. 2535 was dismissed in the
first Resolution as follows:

"WHEREFORE, for all the foregoing, the motion to dismiss is GRANTED and the appeal is
ordered DISMISSED."4

The second Resolution denied petitioner’s Motion for Reconsideration. 5

The Facts

The facts of the case are summarized by the CA in this wise:

"On July 27, 1994, accused [Napoleon Roman y Macadangdang] was found guilty and convicted of the crime
of reckless imprudence resulting to triple homicide, multiple physical injuries and damage to property and
was sentenced to suffer the penalty of four (4) years, nine (9) months and eleven (11) days to six (6) years,
and to pay damages as follows:
‘a. to pay the heirs of JUSTINO TORRES the sum of ₱50,000.00 as indemnity for his death, plus the sum of ₱25,383.00, for
funeral expenses, his unearned income for one year at ₱2,500.00 a month, ₱50,000.00 as indemnity for the support of
Renato Torres, and the further sum of ₱300,000.00 as moral damages;

‘b. to the heirs of ESTRELLA VELERO, the sum of ₱50,000.00 as indemnity for her death, the sum of ₱237,323.75 for funeral
expenses, her unearned income for three years at ₱45,000.00 per annum, and the further sum of ₱1,000,000.00 as moral
damages and ₱200,000.00 as attorney’s fees[;]
 ‘c. to the heirs of LORNA ANCHETA, the sum of ₱50,000.00 as indemnity for her death, the sum of ₱22,838.00 as funeral
expenses, the sum of ₱20,544.94 as medical expenses and her loss of income for 30 years at ₱1,000.00 per month, and the
further sum of ₱100,000.00 for moral damages;

‘d. to MAUREEN BRENNAN, the sum of ₱229,654.00 as hospital expenses, doctor’s fees of ₱170,000.00 for the orthopedic
surgeon, ₱22,500.00 for the [n]eurologist, an additional indemnity [of] at least ₱150,000.00 to cover future correction of
deformity of her limbs, and moral damages in the amount of ₱1,000,000.00;

‘e. to ROSIE BALAJO, the sum of ₱3,561.46 as medical expenses, ₱2,000.00 as loss of income, and ₱25,000.00 as moral
damages;

‘f. to TERESITA TAMONDONG, the sum of ₱19,800.47 as medical expenses, ₱800.00 for loss of income, and ₱25,000.00 as
moral damages;

‘g. to JULIANA TABTAB, the amount of ₱580.81 as medical expenses, ₱4,600.00 as actual damages and her loss earnings of
₱1,400.00 as well as moral damages in the amount of ₱10,000.00;

‘h. to MIGUEL ARQUITOLA, the sum of ₱12,473.82 as hospital expenses, ₱14,530.00 as doctor’s fees, ₱1,000.00 for
medicines and ₱50,000.00 as moral damages;

‘i. to CLARITA CABANBAN, the sum of ₱155.00 for medical expenses, ₱87.00 for medicines, ₱1,710.00 as actual damages
and ₱5,000.00 as moral damages;

‘j. to MARIANO CABANBAN, the sum of ₱1,395.00 for hospital bills, ₱500.00 for medicine, ₱2,100.00 as actual damages,
₱1,200.00 for loss of income and ₱5,000.00 as moral damages;

‘k. to La Union Electric Company as the registered owner of the Toyota Hi-Ace Van, the amount of ₱250,000.00 as actual
damages for the cost of the totally wrecked vehicle; to the owner of the jeepney, the amount of ₱22,698.38 as actual
damages;’

"The court further ruled that [petitioner], in the event of the insolvency of accused, shall be liable for the civil
liabilities of the accused. Evidently, the judgment against accused had become final and executory.

"Admittedly, accused had jumped bail and remained at-large. It is worth mention[ing] that Section 8, Rule
124 of the Rules of Court authorizes the dismissal of appeal when appellant jumps bail. Counsel for accused,
also admittedly hired and provided by [petitioner], filed a notice of appeal which was denied by the trial
court. We affirmed the denial of the notice of appeal filed in behalf of accused.

"Simultaneously, on August 6, 1994, [petitioner] filed its notice of appeal from the judgment of the trial
court. On April 29, 1997, the trial court gave due course to [petitioner’s] notice of appeal. On December 8,
1998, [petitioner] filed its brief. On December 9, 1998, the Office of the Solicitor General received [a] copy of
[petitioner’s] brief. On January 8, 1999, the OSG moved to be excused from filing [respondents’] brief on the
ground that the OSG’s authority to represent People is confined to criminal cases on appeal. The motion was
however denied per Our resolution of May 31, 1999. On March 2, 1999, [respondent]/private prosecutor
filed the instant motion to dismiss."6 (Citations omitted)

Ruling of the Court of Appeals

The CA ruled that the institution of a criminal case implied the institution also of the civil action arising from the
offense. Thus, once determined in the criminal case against the accused-employee, the employer’s subsidiary civil
liability as set forth in Article 103 of the Revised Penal Code becomes conclusive and enforceable.

The appellate court further held that to allow an employer to dispute independently the civil liability fixed in the
criminal case against the accused-employee would be to amend, nullify or defeat a final judgment. Since the notice
of appeal filed by the accused had already been dismissed by the CA, then the judgment of conviction and the award
of civil liability became final and executory. Included in the civil liability of the accused was the employer’s subsidiary
liability.

Hence, this Petition.7

The Issues

Petitioner states the issues of this case as follows:

"A. Whether or not an employer, who dutifully participated in the defense of its accused-employee, may
appeal the judgment of conviction independently of the accused.
 "B. Whether or not the doctrines of Alvarez v. Court of Appeals (158 SCRA 57) and Yusay v. Adil (164 SCRA
494) apply to the instant case."8

There is really only one issue. Item B above is merely an adjunct to Item A.

The Court's Ruling

The Petition has no merit.

Main Issue:

Propriety of Appeal by the Employer

Pointing out that it had seasonably filed a notice of appeal from the RTC Decision, petitioner contends that the
judgment of conviction against the accused-employee has not attained finality. The former insists that its appeal
stayed the finality, notwithstanding the fact that the latter had jumped bail. In effect, petitioner argues that its appeal
takes the place of that of the accused-employee.

We are not persuaded.

Appeals in Criminal Cases

Section 1 of Rule 122 of the 2000 Revised Rules of Criminal Procedure states thus:

"Any party may appeal from a judgment or final order, unless the accused will be placed in double jeopardy."

Clearly, both the accused and the prosecution may appeal a criminal case, but the government may do so only if the
accused would not thereby be placed in double jeopardy. 9 Furthermore, the prosecution cannot appeal on the
ground that the accused should have been given a more severe penalty. 10 On the other hand, the offended parties
may also appeal the judgment with respect to their right to civil liability. If the accused has the right to appeal the
judgment of conviction, the offended parties should have the same right to appeal as much of the judgment as is
prejudicial to them.11

Appeal by the Accused Who Jumps Bail

Well-established in our jurisdiction is the principle that the appellate court may, upon motion or motu proprio,
dismiss an appeal during its pendency if the accused jumps bail. The second paragraph of Section 8 of Rule 124 of the
2000 Revised Rules of Criminal Procedure provides:

"The Court of Appeals may also, upon motion of the appellee or motu proprio, dismiss the appeal if the
appellant escapes from prison or confinement, jumps bail or flees to a foreign country during the pendency
of the appeal."12

This rule is based on the rationale that appellants lose their standing in court when they abscond. Unless they
surrender or submit to the court’s jurisdiction, they are deemed to have waived their right to seek judicial relief. 13

Moreover, this doctrine applies not only to the accused who jumps bail during the appeal, but also to one who does
so during the trial. Justice Florenz D. Regalado succinctly explains the principle in this wise:

"x x x. When, as in this case, the accused escaped after his arraignment and during the trial, but the trial in
absentia proceeded resulting in the promulgation of a judgment against him and his counsel appealed, since
he nonetheless remained at large his appeal must be dismissed by analogy with the aforesaid provision of
this Rule [Rule 124, §8 of the Rules on Criminal Procedure]. x x x" 14

The accused cannot be accorded the right to appeal unless they voluntarily submit to the jurisdiction of the court or
are otherwise arrested within 15 days from notice of the judgment against them. 15 While at large, they cannot seek
relief from the court, as they are deemed to have waived the appeal. 16

Finality of a Decision in a Criminal Case

As to when a judgment of conviction attains finality is explained in Section 7 of Rule 120 of the 2000 Rules of Criminal
Procedure, which we quote:
 "A judgment of conviction may, upon motion of the accused, be modified or set aside before it becomes final
or before appeal is perfected. Except where the death penalty is imposed, a judgment becomes final after
the lapse of the period for perfecting an appeal, or when the sentence has been partially or totally satisfied
or served, or when the accused has waived in writing his right to appeal, or has applied for probation."

In the case before us, the accused-employee has escaped and refused to surrender to the proper authorities; thus,
he is deemed to have abandoned his appeal. Consequently, the judgment against him has become final and
executory.17

Liability of an Employer in a Finding of Guilt

Article 102 of the Revised Penal Code states the subsidiary civil liabilities of innkeepers, as follows:

"In default of the persons criminally liable, innkeepers, tavernkeepers, and any other persons or corporations
shall be civilly liable for crimes committed in their establishments, in all cases where a violation of municipal
ordinances or some general or special police regulation shall have been committed by them or their
employees.

"Innkeepers are also subsidiary liable for restitution of goods taken by robbery or theft within their houses
from guests lodging therein, or for payment of the value thereof, provided that such guests shall have
notified in advance the innkeeper himself, or the person representing him, of the deposit of such goods
within the inn; and shall furthermore have followed the directions which such innkeeper or his
representative may have given them with respect to the care and vigilance over such goods. No liability shall
attach in case of robbery with violence against or intimidation of persons unless committed by the
innkeeper’s employees."

Moreover, the foregoing subsidiary liability applies to employers, according to Article 103 which reads:

"The subsidiary liability established in the next preceding article shall also apply to employers, teachers,
persons, and corporations engaged in any kind of industry for felonies committed by their servants, pupils,
workmen, apprentices, or employees in the discharge of their duties."

Having laid all these basic rules and principles, we now address the main issue raised by petitioner.

Civil Liability Deemed Instituted in the Criminal Prosecution

At the outset, we must explain that the 2000 Rules of Criminal Procedure has clarified what civil actions are deemed
instituted in a criminal prosecution.

Section 1 of Rule 111 of the current Rules of Criminal Procedure provides:

"When a criminal action is instituted, the civil action for the recovery of civil liability arising from the offense
charged shall be deemed instituted with the criminal action unless the offended party waives the civil action,
reserves the right to institute it separately or institutes the civil action prior to the criminal action.

"x x x xxx x x x"

Only the civil liability of the accused arising from the crime charged is deemed impliedly instituted in a criminal
action; that is, unless the offended party waives the civil action, reserves the right to institute it separately, or
institutes it prior to the criminal action. 18 Hence, the subsidiary civil liability of the employer under Article 103 of the
Revised Penal Code may be enforced by execution on the basis of the judgment of conviction meted out to the
employee.19

It is clear that the 2000 Rules deleted the requirement of reserving independent civil actions and allowed these to
proceed separately from criminal actions. Thus, the civil actions referred to in Articles 32, 20 33,21 3422 and 217623of the
Civil Code shall remain "separate, distinct and independent" of any criminal prosecution based on the same act. Here
are some direct consequences of such revision and omission:

1. The right to bring the foregoing actions based on the Civil Code need not be reserved in the criminal
prosecution, since they are not deemed included therein.
 2. The institution or the waiver of the right to file a separate civil action arising from the crime charged does
not extinguish the right to bring such action.

3. The only limitation is that the offended party cannot recover more than once for the same act or
omission.24

What is deemed instituted in every criminal prosecution is the civil liability arising from the crime or delict per se
(civil liability ex delicto), but not those liabilities arising from quasi-delicts, contracts or quasi-contracts. In fact, even if
a civil action is filed separately, the ex delicto civil liability in the criminal prosecution remains, and the offended party
may -- subject to the control of the prosecutor -- still intervene in the criminal action, in order to protect the
remaining civil interest therein.25

This discussion is completely in accord with the Revised Penal Code, which states that "[e]very person criminally
liable for a felony is also civilly liable."26

Petitioner argues that, as an employer, it is considered a party to the criminal case and is conclusively bound by the
outcome thereof. Consequently, petitioner must be accorded the right to pursue the case to its logical conclusion --
including the appeal.

The argument has no merit. Undisputedly, petitioner is not a direct party to the criminal case, which was filed solely
against Napoleon M. Roman, its employee.

In its Memorandum, petitioner cited a comprehensive list of cases dealing with the subsidiary liability of employers.
Thereafter, it noted that none can be applied to it, because "in all th[o]se cases, the accused’s employer did not
interpose an appeal."27 Indeed, petitioner cannot cite any single case in which the employer appealed, precisely
because an appeal in such circumstances is not possible.

The cases dealing with the subsidiary liability of employers uniformly declare that, strictly speaking, they are not
parties to the criminal cases instituted against their employees. 28 Although in substance and in effect, they have an
interest therein, this fact should be viewed in the light of their subsidiary liability. While they may assist their
employees to the extent of supplying the latter’s lawyers, as in the present case, the former cannot act
independently on their own behalf, but can only defend the accused.

Waiver of Constitutional Safeguard Against Double Jeopardy

Petitioner’s appeal obviously aims to have the accused-employee absolved of his criminal responsibility and the
judgment reviewed as a whole. These intentions are apparent from its Appellant’s Brief 29 filed with the CA and from
its Petition30 before us, both of which claim that the trial court’s finding of guilt "is not supported by competent
evidence."31

An appeal from the sentence of the trial court implies a waiver of the constitutional safeguard against double
jeopardy and throws the whole case open to a review by the appellate court. The latter is then called upon to render
judgment as law and justice dictate, whether favorable or unfavorable to the appellant. 32 This is the risk involved
when the accused decides to appeal a sentence of conviction. 33 Indeed, appellate courts have the power to reverse,
affirm or modify the judgment of the lower court and to increase or reduce the penalty it imposed. 34

If the present appeal is given course, the whole case against the accused-employee becomes open to review. It thus
follows that a penalty higher than that which has already been imposed by the trial court may be meted out to him.
Petitioner’s appeal would thus violate his right against double jeopardy, since the judgment against him could
become subject to modification without his consent.

We are not in a position to second-guess the reason why the accused effectively waived his right to appeal by
jumping bail. It is clear, though, that petitioner may not appeal without violating his right against double jeopardy.

Effect of Absconding on the Appeal Process

Moreover, within the meaning of the principles governing the prevailing criminal procedure, the accused impliedly
withdrew his appeal by jumping bail and thereby made the judgment of the court below final. 35 Having been a
fugitive from justice for a long period of time, he is deemed to have waived his right to appeal. Thus, his conviction is
now final and executory. The Court in People v. Ang Gioc36 ruled:
 "There are certain fundamental rights which cannot be waived even by the accused himself, but the right of
appeal is not one of them. This right is granted solely for the benefit of the accused. He may avail of it or not,
as he pleases. He may waive it either expressly or by implication. When the accused flees after the case has
been submitted to the court for decision, he will be deemed to have waived his right to appeal from the
judgment rendered against him. x x x." 37

By fleeing, the herein accused exhibited contempt of the authority of the court and placed himself in a position to
speculate on his chances for a reversal. In the process, he kept himself out of the reach of justice, but hoped to
render the judgment nugatory at his option. 38 Such conduct is intolerable and does not invite leniency on the part of
the appellate court.39

Consequently, the judgment against an appellant who escapes and who refuses to surrender to the proper
authorities becomes final and executory. 40

Thus far, we have clarified that petitioner has no right to appeal the criminal case against the accused-employee; that
by jumping bail, he has waived his right to appeal; and that the judgment in the criminal case against him is now
final.

Subsidiary Liability Upon Finality of Judgment

As a matter of law, the subsidiary liability of petitioner now accrues. Petitioner argues that the rulings of this Court
in Miranda v. Malate Garage & Taxicab, Inc.,41 Alvarez v. CA42 and Yusay v. Adil43 do not apply to the present case,
because it has followed the Court’s directive to the employers in these cases to take part in the criminal cases against
their employees. By participating in the defense of its employee, herein petitioner tries to shield itself from the
undisputed rulings laid down in these leading cases.

Such posturing is untenable. In dissecting these cases on subsidiary liability, petitioner lost track of the most basic
tenet they have laid down -- that an employer’s liability in a finding of guilt against its accused-employee is
subsidiary.

Under Article 103 of the Revised Penal Code, employers are subsidiarily liable for the adjudicated civil liabilities of
their employees in the event of the latter’s insolvency. 44 The provisions of the Revised Penal Code on subsidiary
liability -- Articles 102 and 103 -- are deemed written into the judgments in the cases to which they are
applicable.45Thus, in the dispositive portion of its decision, the trial court need not expressly pronounce the
subsidiary liability of the employer.

In the absence of any collusion between the accused-employee and the offended party, the judgment of conviction
should bind the person who is subsidiarily liable. 46 In effect and implication, the stigma of a criminal conviction
surpasses mere civil liability.47

To allow employers to dispute the civil liability fixed in a criminal case would enable them to amend, nullify or defeat
a final judgment rendered by a competent court. 48 By the same token, to allow them to appeal the final criminal
conviction of their employees without the latter’s consent would also result in improperly amending, nullifying or
defeating the judgment.

The decision convicting an employee in a criminal case is binding and conclusive upon the employer not only with
regard to the former’s civil liability, but also with regard to its amount. The liability of an employer cannot be
separated from that of the employee. 49

Before the employers’ subsidiary liability is exacted, however, there must be adequate evidence establishing that (1)
they are indeed the employers of the convicted employees; (2) that the former are engaged in some kind of industry;
(3) that the crime was committed by the employees in the discharge of their duties; and (4) that the execution
against the latter has not been satisfied due to insolvency. 50

The resolution of these issues need not be done in a separate civil action. But the determination must be based on
the evidence that the offended party and the employer may fully and freely present. Such determination may be
done in the same criminal action in which the employee’s liability, criminal and civil, has been pronounced; 51 and in a
hearing set for that precise purpose, with due notice to the employer, as part of the proceedings for the execution of
the judgment.
Just because the present petitioner participated in the defense of its accused-employee does not mean that its
liability has transformed its nature; its liability remains subsidiary. Neither will its participation erase its subsidiary
liability. The fact remains that since the accused-employee’s conviction has attained finality, then the subsidiary
liability of the employer ipso facto attaches.

According to the argument of petitioner, fairness dictates that while the finality of conviction could be the proper
sanction to be imposed upon the accused for jumping bail, the same sanction should not affect it. In effect,
petitioner-employer splits this case into two: first, for itself; and second, for its accused-employee.

The untenability of this argument is clearly evident. There is only one criminal case against the accused-employee. A
finding of guilt has both criminal and civil aspects. It is the height of absurdity for this single case to be final as to the
accused who jumped bail, but not as to an entity whose liability is dependent upon the conviction of the former.

The subsidiary liability of petitioner is incidental to and dependent on the pecuniary civil liability of the accused-
employee. Since the civil liability of the latter has become final and enforceable by reason of his flight, then the
former’s subsidiary civil liability has also become immediately enforceable. Respondent is correct in arguing that the
concept of subsidiary liability is highly contingent on the imposition of the primary civil liability.

No Deprivation of Due Process

As to the argument that petitioner was deprived of due process, we reiterate that what is sought to be enforced is
the subsidiary civil liability incident to and dependent upon the employee’s criminal negligence. In other words, the
employer becomes ipso facto subsidiarily liable upon the conviction of the employee and upon proof of the latter’s
insolvency, in the same way that acquittal wipes out not only his primary civil liability, but also his employer’s
subsidiary liability for his criminal negligence. 52

It should be stressed that the right to appeal is neither a natural right nor a part of due process. 53 It is merely a
procedural remedy of statutory origin, a remedy that may be exercised only in the manner prescribed by the
provisions of law authorizing such exercise.54 Hence, the legal requirements must be strictly complied with. 55

It would be incorrect to consider the requirements of the rules on appeal as merely harmless and trivial technicalities
that can be discarded.56 Indeed, deviations from the rules cannot be tolerated. 57 In these times when court dockets
are clogged with numerous litigations, such rules have to be followed by parties with greater fidelity, so as to
facilitate the orderly disposition of those cases. 58

After a judgment has become final, vested rights are acquired by the winning party. If the proper losing party has the
right to file an appeal within the prescribed period, then the former has the correlative right to enjoy the finality of
the resolution of the case.59

In fact, petitioner admits that by helping the accused-employee, it participated in the proceedings before the RTC;
thus, it cannot be said that the employer was deprived of due process. It might have lost its right to appeal, but it was
not denied its day in court.60 In fact, it can be said that by jumping bail, the accused-employee, not the court,
deprived petitioner of the right to appeal.

All told, what is left to be done is to execute the RTC Decision against the accused. It should be clear that only after
proof of his insolvency may the subsidiary liability of petitioner be enforced. It has been sufficiently proven that there
exists an employer-employee relationship; that the employer is engaged in some kind of industry; and that the
employee has been adjudged guilty of the wrongful act and found to have committed the offense in the discharge of
his duties. The proof is clear from the admissions of petitioner that "[o]n 26 August 1990, while on its regular trip
from Laoag to Manila, a passenger bus owned by petitioner, being then operated by petitioner’s driver, Napoleon
Roman, figured in an accident in San Juan, La Union x x x."61 Neither does petitioner dispute that there was already a
finding of guilt against the accused while he was in the discharge of his duties.

WHEREFORE, the Petition is hereby DENIED, and the assailed Resolutions AFFIRMED. Costs against petitioner.

SO ORDERED.

PEOPLE OF THE PHILIPPINES vs. ROGELIO LIGON y TRIAS and FERNANDO GABAT y ALMERA, accused,
FERNANDO GABAT y ALMERA, accused-appellant [G.R. No. 74041 July 29, 1987]
This is an appeal from the judgment of the Regional Trial Court of Manila, Branch XX, rendered on February 17, 1986,
convicting the accused-appellant, Fernando Gabat, of the crime of Robbery with Homicide and sentencing him
to reclusion perpetua. The victim was Jose Rosales y Ortiz, a ,Seventeen-year old working student who was earning
his keep as a cigarette vendor. He was allegedly robbed of Es cigarette box containing cigarettes worth P300.00 more
or less.1

Only Fernando Gabat was arrested and brought to trial and convicted. The other accused, Rogelio Ligon, was never
apprehended and is still at large.

The fatal incident happened on a Sunday, October 23, 1983 at about 6:10 p.m. The accused, Fernando Gabat, was
riding in a 1978 Volkswagen Kombi owned by his father, Antonio Gabat, and driven by the other accused, Rogelio
Ligon. The Kombi was coming from Espana Street going towards the direction of Quiapo. Fernando Gabat was seated
beside the driver, in the front seat by the window on the right side of the Kombi. At the intersection of Quezon
Boulevard and Lerma Street before turning left towards the underpass at C.M. Recto Avenue, the Kombi had to stop
as the traffic light was red. While waiting for the traffic light to change, Fernando Gabat beckoned a cigarette vendor,
Jose Rosales y Ortiz (Rosales for short) to buy some cigarettes from him. Rosales approached the Kombi and handed
Gabat two sticks of cigarettes. While this transaction was occurring, the traffic light changed to green, and the Kombi
driven by Rogelio Ligon suddenly moved forward. As to what precisely happened between Gabat and Rosales at the
crucial moment, and immediately thereafter, is the subject of conflicting versions by the prosecution and the
defense. It is not controverted, however, that as the Kombi continued to speed towards Quiapo, Rosales clung to the
window of the Kombi but apparently lost his grip and fell down on the pavement. Rosales was rushed by some
bystanders to the Philippine General Hospital, where he was treated for multiple physical injuries and was confined
thereat until his death on October 30, 1983.

Following close behind the Kombi at the time of the incident was a taxicab driven by Prudencio Castillo. He was
behind the Kombi, at a distance of about three meters, travelling on the same lane in a slightly oblique position ("a
little bit to the right").2 As the Kombi did not stop after the victim fell down on the pavement near the foot of the
underpass, Castillo pursued it as it sped towards Roxas Boulevard, beeping his horn to make the driver stop. When
they reached the Luneta near the Rizal monument, Castillo saw an owner-type jeep with two persons in it. He sought
their assistance in chasing the Kombi, telling them "nakaaksidente ng tao."3 The two men in the jeep joined the chase
and at the intersection of Vito Cruz and Roxas Boulevard, Castillo was able to overtake the Kombi when the traffic
light turned red. He immediately blocked the Kombi while the jeep pulled up right behind it. The two men on board
the jeep turned out to be police officers, Patrolmen Leonardo Pugao and Peter Ignacio. They drew their guns and told
the driver, Rogelio Ligon, and his companion, Fernando Gabat, to alight from the Kombi. It was found out that there
was a third person inside the Kombi, a certain Rodolfo Primicias who was sleeping at the rear seat. 4The three were all
brought by the police officers to the Western Police District and turned over to Pfc. Fernan Payuan. The taxicab
driver, Prudencio Castillo, also went along with them. The written statements of Castillo and Rodolfo Primicias were
taken by the traffic investigator, Pfc. Fernan Payuan. 5 Payuan also prepared a Traffic Accident Report, dated October
23, 1983.6 Fernando Gabat and Rodolfo Primicias were released early morning the following day, but Rogelio Ligon
was detained and turned over to the City Fiscal's Office for further investigation.

Investigating Fiscal Alfredo Cantos, filed an information in court against Rogelio Ligon dated December 6, 1983
charging him with Homicide thru Reckless Imprudence. 7 Six months later, however, or on June 28, 1984, Assistant
Fiscal Cantos filed another information against Rogelio Ligon and Fernando Gabat for Robbery with Homicide. 8 He
filed the latter information on the basis of a Supplemental Affidavit of Prudencio Castillo 9 and a joint affidavit of
Armando Espino and Romeo Castil, cigarette vendors, who allegedly witnessed the incident on October 23,
1983.10These affidavits were already prepared and merely sworn to before Fiscal Cantos on January 17, 1984.

On October 31, 1983, an autopsy was conducted by the medico-legal officer of the National Bureau of Investigation,
Dr. Orlando V. Salvador, who stated in his autopsy report that the cause of death of Rosales was "pneumonia
hypostatic, bilateral, secondary to traumatic injuries of the head." 11

The prosecution tried to establish, through the sole testimony of the taxicab driver, Prudencio Castillo, that Gabat
grabbed the box of cigarettes from Rosales and pried loose the latter's hand from the window of the Kombi, resulting
in the latter falling down and hitting the pavement. In its decision, the trial court summarized the testimony of
Castillo as follows: At about 6:00 o'clock in the evening of October 23, 1983, Castillo was then driving his taxicab
along Lerma Street near Far Eastern University, and at the intersection of Lerma and Quezon Boulevard, the traffic
light changed from green to red. The vehicular traffic stopped and Prudencio Castillo's taxi was right behind a
Volkswagen Kombi. While waiting for the traffic light to change to green, Castillo Idly watched the Volkswagen Kombi
and saw Gabat, the passenger sitting beside the driver, signal to a cigarette vendor. The cigarette vendor, Rosales,
approached the right side of the Kombi. While Rosales was handing the cigarettes to Gabat, the traffic light suddenly
changed to green. When the Kombi moved forward, Gabat suddenly grabbed the cigarette box held by Rosales. Taken
aback, Jose Rosales ran beside the Kombi and was able to hold on to the windowsill of the right front door with his
right hand. While Rosales was clinging to the windowsill, with both feet off the ground, the Kombi continued to
speed towards the C.M. Recto underpass. Castillo, who was closely following the Kombi, then saw Gabat forcibly
remove the hand of Rosales from the windowsill and the latter fell face down on Quezon Boulevard near the Recto
underpass.12

The version of the defense, on the other hand, was summarized by the court as follows: On the date and time in
question, Fernando Gabat, 31 years old, an underwriter, was on board the Volkswagen Kombi driven by Rogelio
Ligon. The Kombi had to stop at the intersection of Lerma Street and Quezon Boulevard when the traffic light turned
red. Fernando Gabat, who wanted to buy cigarettes, called a cigarette vendor who approached the right side of the
Kombi. Gabat bought two sticks of cigarettes and handed to the cigarette vendor, Rosales, a P5.00 bill. In order to
change the P5.00 big, Rosales placed his cigarette box containing assorted cigarettes on the windowsill of the front
door of the Kombi between the arm of Gabat and the window frame. Suddenly, the traffic light changed from red to
green and Rogelio Ligon moved the vehicle forward, heedless of the transaction between Gabat and the cigarette
vendor. As the vehicle sped onward, the cigarette box which was squeezed between the right arm of Gabat and the
window frame fell inside the Kombi. Rosales then ran beside the vehicle and clung to the windowsill of the moving
vehicle. Gabat testified that when he saw the cigarette vendor clinging on the side of the front door, he told Ligon to
veer to the right in order that Rosales could get off at the sidewalk. However, Gabat declared, that Ligon said that it
could not be done because of the moving vehicular traffic. Then, while the vehicle slowed down and Ligon was
maneuvering to the right in an attempt to go toward the sidewalk, Rosales lost his grip on the window frame and fell
to the pavement of Quezon Boulevard. Gabat allegedly shouted at Ligon to stop but Ligon replied that they should go
on to Las Pinas and report the incident to the parents of Gabat, and later they would come back to the scene of the
incident. However, while the Kombi was speeding along Dewey Boulevard, it was blocked by the taxi of Prudencio
Castillo and a jeep driven by policemen. Gabat and Ligon were brought to police headquarters, but neither of them
executed any written statement.13

The trial court gave full credence to the prosecution's version, stating that there can be no doubt that Gabat forcibly
took or grabbed the cigarette box from Rosales because, otherwise, there could be no reason for the latter to run
after the Kombi and hang on to its window. The court also believed Castillo's testimony that Gabat forcibly removed
or pried off the right hand of Rosales from the windowsill of the Kombi, otherwise, the latter could not have fallen
down, having already been able to balance himself on the stepboard.

On the other hand, the trial court dismissed as incredible the testimony of Gabat that the cigarette vendor placed the
cigarette box on the windowsill of the Kombi, holding it with his left hand, while he was trying to get from his pocket
the change for the 5-peso bill of Gabat. The court said that it is of common knowledge that cigarette vendors plying
their trade in the streets do not let go of their cigarette box; no vendor lets go of his precious box of cigarettes in
order to change a peso bin given by a customer.

As a rule, the findings of fact of the trial court are accorded great respect and are not disturbed on appeal, unless it is
shows that the findings are not supported by the evidence, or the court failed to consider certain material facts and
circumstances in its evaluation of the evidence. In the case at bar, a careful review of the record shows that certain
material facts and circumstances had been overlooked by the trial court which, if taken into account, would alter the
result of the case in that they would introduce an element of reasonable doubt which would entitle the accused to
acquittal.

While the prosecution witness, Castillo, may be a disinterested witness with no motive, according to the court a quo,
"other than to see that justice be done," his testimony, even if not tainted with bias, is not entirely free from doubt
because his observation of the event could have been faulty or mistaken. The taxicab which Castillo was driving was
lower in height compared to the Kombi in which Gabat was riding-a fact admitted by Castillo at the trial. 14Judicial
notice may also be taken of the fact that the rear windshield of the 1978 Volkswagen Kombi is on the upper portion,
occupying approximately one-third (1/3) of the rear end of the vehicle, thus making it visually difficult for Castillo to
observe clearly what transpired inside the Kombi at the front end where Gabat was seated. These are circumstances
which must be taken into consideration in evaluating Castillo's testimony as to what exactly happened between
Gabat and the cigarette vendor during that crucial moment before the latter fell down. As the taxicab was right
behind the Kombi, following it at a distance of about three meters, Castillo's line of vision was partially obstructed by
the back part of the Kombi. His testimony that he saw Gabat grab the cigarette box from Rosales and forcibly pry
loose the latter's hand from the windowsill of the Kombi is thus subject to a reasonable doubt, specially considering
that this occurrence happened in just a matter of seconds, and both vehicles during that time were moving fast in the
traffic.

We find it significant that in his statement given to the police that very evening, 15 Castillo did not mention that he saw
Gabat forcibly prying off the hand of Rosales from the windowsill of the Kombi, although the police report prepared
by the investigating officer, Pfc. Fermin M. Payuan, on the same date, stated that when the traffic signal changed to
green and the driver stepped on the gas, the cigarette box of the cigarette vendor (Rosales) was grabbed by the
passenger Gabat and "instantly the former clung to the door and was dragged at a distance while at the same time
the latter punched the vendor's arm until the same (sic) fell to the pavement," thus showing that during the police
investigation Castillo must have given a statement to the police which indicated that Gabat did something to cause
Rosales to fall from the Kombi.16 It was by way of a supplementary affidavit prepared by the lawyer of the
complainant and sworn to by Castillo before the Assistant City Fiscal on January 17, 1984 that this vital detail was
added. This supplementary affidavit was made the basis for filing another information charging both Gabat and the
driver with the crime of Robbery with Homicide.

Considering the above circumstances, the Court is not convinced with moral certainty that the guilt of the accused
Fernando Gabat has been established beyond reasonable doubt. In our view, the quantum of proof necessary to
sustain Gabat's conviction of so serious a crime as robbery with homicide has not been met in this case. He is
therefore entitled to acquittal on reasonable doubt.

However, it does not follow that a person who is not criminally liable is also free from civil liability.1avvphi1 While the
guilt of the accused in a criminal prosecution must be established beyond reasonable doubt, only a preponderance of
evidence is required in a civil action for damages. 17 The judgment of acquittal extinguishes the civil liability of the
accused only when it includes a declaration that the facts from which the civil liability might arise did not exist. 18

The reason for the provisions of Article 29 of the Civil Code, which provides that the acquittal of the accused on the
ground that his guilt has not been proved beyond reasonable doubt does not necessarily exempt him from civil
liability for the same act or omission, has been explained by the Code Commission as follows:

The old rule that the acquittal of the accused in a criminal case also releases him from civil liability is one of
the most serious flaws in the Philippine legal system. It has given rise to numberless instances of miscarriage
of justice, where the acquittal was due to a reasonable doubt in the mind of the court as to the guilt of the
accused. The reasoning followed is that inasmuch as the civil responsibility is derived from the criminal
offense, when the latter is not proved, civil liability cannot be demanded.

This is one of those cases where confused thinking leads to unfortunate and deplorable consequences. Such
reasoning fails to draw a clear line of demarcation between criminal liability and civil responsibility, and to
determine the logical result of the distinction. The two liabilities are separate and distinct from each other.
One affects the social order and the other, private rights. One is for the punishment or correction of the
offender while the other is for reparation of damages suffered by the aggrieved party. The two
responsibilities are so different from each other that article 1813 of the present (Spanish) Civil Code reads
thus: "There may be a compromise upon the civil action arising from a crime; but the public action for the
imposition of the legal penalty shall not thereby be extinguished." It is just and proper that, for the purposes
of the imprisonment of or fine upon the accused, the offense should be proved beyond reasonable doubt.
But for the purpose of indemnifying the complaining party, why should the offense also be proved beyond
reasonable doubt? Is not the invasion or violation of every private right to be proved only by a
preponderance of evidence? Is the right of the aggrieved person any less private because the wrongful act is
also punishable by the criminal law?

For these reasons, the Commission recommends the adoption of the reform under discussion. It will correct
a serious defect in our law. It will close up an inexhaustible source of injustice a cause for disillusionment on
the part of the innumerable persons injured or wronged. 19

In the instant case, we find that a preponderance of evidence exists sufficient to establish the facts from which the
civil liability of Gabat arises. On the basis of the trial court's evaluation of the testimonies of both prosecution and
defense witnesses at the trial and applying the quantum of proof required in civil cases, we find that a
preponderance of evidence establishes that Gabat by his act and omission with fault and negligence caused damage
to Rosales and should answer civilly for the damage done. Gabat's wilfull act of calling Rosales, the cigarette vendor,
to the middle of a busy street to buy two sticks of cigarettes set the chain of events which led to the death of Rosales.
Through fault and negligence, Gabat (1) failed to prevent the driver from moving forward while the purchase was
completed; (2) failed to help Rosales while the latter clung precariously to the moving vehicle, and (3) did not enforce
his order to the driver to stop. Finally, Gabat acquiesced in the driver's act of speeding away, instead of stopping and
picking up the injured victim. These proven facts taken together are firm bases for finding Gabat civilly liable under
the Civil Code20 for the damage done to Rosales.

WHEREFORE, judgment is rendered acquitting the appellant Gabat for the crime of Robbery with Homicide. However,
he is hereby held civilly liable for his acts and omissions, there being fault or negligence, and sentenced to indemnify
the heirs of Jose Rosales y Ortiz in the amount of P15.000.00 for the latter's death, P1,733.35 for hospital and
medical expenses, and P4,100.00 for funeral expenses. The alleged loss of income amounting to P20,000.00, not
being supported by sufficient evidence, is DENIED. Costs de officio.

SO ORDERED.
JOSE CANGCO vs. MANILA RAILROAD CO. [G.R. No. L-12191. October 14, 1918]

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

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

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

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

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

Upon August 31, 1915, he instituted this proceeding in the Court of First Instance of the city of Manila to recover
damages of the defendant company, founding his action upon the negligence of the servants and employees of the
defendant in placing the sacks of melons upon the platform and leaving them so placed as to be a menace to the
security of passenger alighting from the company's trains. At the hearing in the Court of First Instance, his Honor, the
trial judge, found the facts substantially as above stated, and drew therefrom his conclusion to the effect that,
although negligence was attributable to the defendant by reason of the fact that the sacks of melons were so placed
as to obstruct passengers passing to and from the cars, nevertheless, the plaintiff himself had failed to use due
caution in alighting from the coach and was therefore precluded form recovering. Judgment was accordingly entered
in favor of the defendant company, and the plaintiff appealed.
It can not be doubted that the employees of the railroad company were guilty of negligence in piling these sacks on
the platform in the manner above stated; that their presence caused the plaintiff to fall as he alighted from the train;
and that they therefore constituted an effective legal cause of the injuries sustained by the plaintiff. It necessarily
follows that the defendant company is liable for the damage thereby occasioned unless recovery is barred by the
plaintiff's own contributory negligence. In resolving this problem it is necessary that each of these conceptions of
liability, to-wit, the primary responsibility of the defendant company and the contributory negligence of the plaintiff
should be separately examined.

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 of respondeat superior
— if it were, the master would be liable in every case and unconditionally — but upon the principle announced in
article 1902 of the Civil Code, which imposes upon all persons who by their fault or negligence, do injury to another,
the obligation of making good the damage caused. One who places a powerful automobile in the hands of a servant
whom he knows to be ignorant of the method of 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:

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 sufficient prima 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, 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 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 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.

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

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.

Separate Opinions (MALCOLM, J., dissenting)

With one sentence in the majority decision, we are of full accord, namely, "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." With the general rule relative to a passenger's contributory negligence, we are likewise in full accord,
namely, "An attempt to alight from a moving train is negligence per se." Adding these two points together, should be
absolved from the complaint, and judgment affirmed.

PAZ FORES vs. IRENEO MIRANDA [G.R. No. L-12163. March 4, 1959]

Defendant-petitioner Paz Fores brings this petition for review of the decision of the Court of Appeals (C.A. Case No.
1437-R) awarding to the plaintiff-respondent Ireneo Miranda the sums of P5,000 by way of actual damages and
counsel fees, and P10,000 as moral damages, with costs.

Respondent was one of the passengers on a jeepney driven by Eugenio Luga. While the vehicle was descending the
Sta. Mesa bridge at an excessive rate of speed, the driver lost control thereof, causing it to swerve and to his the
bridge wall. The accident occurred on the morning of March 22, 1953. Five of the passengers were injured, including
the respondent who suffered a fracture of the upper right humerus. He was taken to the National Orthopedic
Hospital for treatment, and later was subjected to a series of operations; the first on May 23, 1953, when wire loops
were wound around the broken bones and screwed into place; a second, effected to insert a metal splint, and a third
one to remove such splint. At the time of the trial, it appears that respondent had not yet recovered the use of his
right arm.

The driver was charged with serious physical injuries through reckless imprudence, and upon interposing a plea of
guilty was sentenced accordingly.

The contention that the evidence did not sufficiently establish the identity of the vehicle as the belonging to the
petitioner was rejected by the appellate court which found, among other things, that is carried plate No. TPU-1163,
SERIES OF 1952, Quezon City, registered in the name of Paz Fores, (appellant herein) and that the vehicle even had
the name of "Doña Paz" painted below its wind shield. No evidence to the contrary was introduced by the petitioner,
who relied on an attack upon the credibility of the two policemen who went to the scene of the incident.

A point to be further remarked is petitioner's contention that on March 21, 1953, or one day before the accident
happened, she allegedly sold the passenger jeep that was involved therein to a certain Carmen Sackerman.

The initial problem raised by the petitioner in this appeal may be formulated thus — "Is the approval of the Public
Service Commission necessary for the sale of a public service vehicle even without conveying therewith the authority
to operate the same?" Assuming the dubious sale to be a fact, the court of Appeals answered the query in the
affirmative. The ruling should be upheld.

Section 20 of the Public Service Act (Commonwealth Act No. 146) provides:
 Sec. 20. Subject to established limitations and exceptions and saving provisions to the contrary, it shall be
unlawful for any public service or for the owner, lessee or operator thereof, without the previous approval
and authority of the Commission previously had —

xxx xxx xxx

(g) To sell, alienate, mortgage, encumber or lease its property, franchises, certificates, privileges, or rights, or
any part thereof; or merge or consolidate its property, franchises, privileges or rights, or any part thereof,
with those of any other public service. The approval herein required shall be given, after notice to the public
and after hearing the persons interested at a public hearing, if it be shown that there are just and reasonable
grounds for making the mortgage or encumbrance, for liabilities of more than one year maturity, or the sale,
alienation, lease, merger, or consolidation to be approved and that the same are not detrimental to the
public interest, and in case of a sale, the date on which the same is to be consummated shall be fixed in the
order of approval: Provided, however, That nothing herein contained shall be construed to prevent the
transaction from being negotiated or completed before its approval or to prevent the sale, alienation, or
lease by any public service of any of its property in the ordinary course of its business.

Interpreting the effects of this particular provision of law, we have held in the recent cases of Montoya vs.
Ignacio, *50 Off. Gaz. No. 1, p. 108; Timbol vs. Osias, et al., G. R. No. L-7547, April 30, 1955, and Medina vs.
Cresencia, 99 Phil., 506; 52 Off. Gaz. No. 10, p. 4606, that a transfer contemplated by the law, if made without the
requisite approval of the Public Service Commission, is not effective and binding in so far as the responsibility of the
grantee under the franchise in relation to the public is concerned. Petitioner assails, however, the applicability of
these rulings to the instant case, contending that in those cases, the operator did not convey, by lease or by sale, the
vehicle independently of his rights under the franchise. This line of reasoning does not find support in the law. The
provisions of the statute are clear and prohibit the sale, alienation, lease, or encumbrance of the property, franchise,
certificate, privileges or rights, or any part thereof of the owner or operator of the public service Commission. The
law was designed primarily for the protection of the public interest; and until the approval of the public Service
Commission is obtained the vehicle is, in contemplation of law, still under the service of the owner or operator
standing in the records of the Commission which the public has a right to rely upon.

The proviso contained in the aforequoted law, to the effect that nothing therein shall be construed "to prevent the
transaction from being negotiated or complete before its approval", means only that the sale without the required
approval is still valid and binding between the parties (Montoya vs. Ignacio, supra). The phrase "in the ordinary
course of its business" found in the other proviso" or to prevent the sale, alienation, or lease by any public service of
any of its property". As correctly observed by the lower court, could not have been intended to include the sale of
the vehicle itself, but at most may refer only to such property that may be conceivably disposed or by the carrier in
the ordinary course of its business, like junked equipment or spare parts.

The case of Indalecio de Torres vs. Vicente Ona (63 Phil., 594, 597) is enlightening; and there, it was held:

Under the law, the Public Service Commission has not only general supervision and regulation of, but also full
jurisdiction and control over all public utilities including the property, equipment and facilities used, and the
property rights and franchise enjoyed by every individual and company engaged i the performance of a
public service in the sense this phrase is used in the Public Service Act or Act No. 3108). By virtue of the
provisions of said Act, motor vehicles used in the performance of a service, as the transportation of
freight from one point to another, have to this date been considered — and they cannot but be so
considered-public service property; and, by reason of its own nature, a TH truck, which means that the
operator thereof places it at the disposal of anybody who is willing to pay a rental of its use, when he desires
to transfer or carry his effects, merchandise or any other cargo from one place to another, is necessarily a
public service property. (Emphasis supplied)

Of course, this court has held in the case of Bachrach Motor co. vs. Zamboanga Transportation Co., 52 Phil., 244, that
there may be a nunc pro tunc authorization which has the effect of having the approval retroact to the date of the
transfer; but such outcome cannot prejudice rights intervening in the meantime. It appears that no such approval
was given by the Commission before the accident occurred.

The P10,000 actual damages awarded by the Court of First Instance of Manila were reduced by the Court of Appeals
to only P2,000, on the ground that a review of the records failed to disclose a sufficient basis for the trial court's
appraisal, since the only evidence presented on this point consisted of respondent's bare statement that his expenses
and loss of income amounted to P20,000. On the other hand, "it cannot be denied," the lower court said, "that
appellee (respondent) did incur expenses"' It is well to note further that respondent was a painter by profession and
a professor of Fine Arts, so that the amount of P2,000 awarded cannot be said to be excessive (see Arts. 2224 and
2225, Civil Code of the Philippines). The attorney's fees in the sum of P3,000 also awarded to the respondent are
assailed on the ground that the Court of First Instance did not provided for the same, and since no appeal was
interposed by said respondent, it was allegedly error for the Court of Appeals to award them motu proprio. Petitioner
fails to note that attorney's fees are included in the concept of actual damages under the Civil Code and may be
awarded whenever the court deems it is just and equitable (Art. 2208, Civil Code of the Philippines). We see no
reason to alter these awards.

Anent the moral damages ordered to be paid to the respondent, the same must be discarded. We have repeatedly
ruled (Cachero vs. Manila Yellow Taxicab Co. Inc., 101 Phil., 523; 54 Off. Gaz., [26], 6599; Necesito, et al vs. Paras, 104
Phil., 75; 56 Off. Gaz., [23] 4023, that moral damages are not recoverable in damage actions predicted on a breach of
the contract of transportation, in view of Articles 2219 and 2220 of the new Civil Code, which provide as follows:

Art. 2219. Moral damages may be recovered in the following and analogous cases:

(1) A criminal offense resulting in physical injuries;

(2) Quasi-delicts causing physical injuries;

xxx xxx xxx

Art. 2220. Willful injury to property may be a legal ground for awarding moral damages if the court should
find that, under circumstances, such damages are justify due. The same rule applies to breaches of contract
where the defendant acted fraudulently or in bad faith.

By contrasting the provisions of these two article it immediately becomes apparent that:

(a) In case of breach of contract (including one of transportation) proof of bad faith or fraud (dolus), i.e., wanton or
deliberately injurious conduct, is essential to justify an award of moral damages; and

(b) That a breach of contract can not be considered included in the descriptive term "analogous cases" used in Art.
2219; not only because Art. 2220 specifically provides for the damages that are caused by contractual breach, but
because the definition of quasi-delict in Art. 2176 of the Code expressly excludes the cases where there is a
"preexisting contractual relation between the parties."

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

The exception to the basic rule of damages now under consideration is a mishap resulting in the death of a
passenger, in which case Article 1764 makes the common carrier expressly subject to the rule of Art. 2206, that
entitles the deceased passenger to "demand moral damages for mental anguish by reason of the death of the
deceased" (Necesito vs. Paras, 104 Phil., 84, Resolution on motion to reconsider, September 11, 1958). But the
exceptional rule of Art. 1764 makes it all the more evident that where the injured passenger does not die, moral
damages are not recoverable unless it is proved that the carrier was guilty of malice or bad faith. We think it is clear
that the mere carelessness of the carrier's driver does not per se constitute of justify an inference of malice or bad
faith on the part of the carrier; and in the case at bar there is no other evidence of such malice to support the award
of moral damages by the Court of Appeals. To award moral damages for breach of contract, therefore, without proof
of bad faith or malice on the part of the defendant, as required by Art. 220, would be to violate the clear provisions
of the law, and constitute unwarranted judicial legislation.

The Court of Appeals has invoked our rulings in Castro vs. Acro Taxicab Co., G.R. No. 49155, December 14, 1948
and Layda vs. Court of Appeals, 90 Phil., 724; but these doctrines were predicated upon our former law of damages,
before judicial discretion in fixing them became limited by the express provisions of the new Civil Code (previously
quoted). Hence, the aforesaid rulings are now inapplicable.

Upon the other hand, the advantageous position of a party suing a carrier for breach of the contract of
transportations explains, to some extent, the limitations imposed by the new Code on the amount of the recovery.
The action for breach of contract imposes on the defendant carrier a presumption of liability upon mere proof of
injury to the passenger; that latter is relieved from the duty to established the fault of the carrier, or of his
employees, and the burden is placed on the carrier to prove that it was due to an unforseen event or to force
majeure (Cangco vs. Manila Railroad Co., 38 Phil., 768, 777). Moreover, the carrier, unlike in suits for quasi-delict,
may not escape liability by proving that it has exercised due diligence in the selection and supervision of its
employees (Art. 1759, new civil code; Cangco vs. Manila Railroad Co., supra; Prado vs. Manila Electric Co., 51 Phil.,
900).

The difference in conditions, defenses and proof, as well as the codal concept of quasi-delict as
essentially extracontractual negligence, compel us to differentiate between action ex contractu, and actions quasi ex
delicto, and prevent us from viewing the action for breach of contract as simultaneously embodying an action on tort.
Neither can this action be taken as one to enforce on employee's liability under Art. 103 of the Revised Penal Code,
since the responsibility is not alleged to be subsidiary, nor is there on record any averment or proof that the driver of
appellant was insolvent. In fact, he is not even made a party to the suit.

It is also suggested that a carrier's violation of its engagement to safety transport the passenger involves a breach of
the passenger's confidence, and therefore should be regarded as a breach of contract in bad faith, justifying recovery
of moral damages under Art. 2220. This theory is untenable, for under it the carrier would always be deemed in bad
faith, in every case its obligation to the passenger is infringed, and it would be never accountable for simple
negligence; while under the law (Art. 1756). the presumption is that common carriers acted negligently (and not
maliciously), and Art. 1762 speaks of negligence of the common carrier.

ART. 1756. In case of death of or injuries to passengers, common carriers are presumed to have been at fault
or to have acted negligently, unless they prove that they observed extraordinary diligence as prescribed in
article 1733 and 1755.

ART. 1762. The contributory negligence of the passenger does not bar recovery of damages for his death or
injuries, if the proximate cause thereof is the negligence of the common carrier, but the amount of damages
shall be equitably reduced.

The distinction between fraud, bad faith or malice in the sense of deliberate or wanton wrong doing and negligence
(as mere carelessness) is too fundamental in our law to be ignored (Arts. 1170-1172); their consequences being
clearly differentiated by the Code.

ART. 2201. In contracts and quasi-contracts, the damages for which the obligor who acted in good faith is
liable shall be those that are the natural and probable consequences of the breach of the obligation, and
which the parties have foreseen or could have reasonably foreseen at the time the obligation was
constituted.

In case of fraud, bad faith, malice or wanton attitude, the obligor shall be responsible for all damages which
may be reasonably attributed to the non-performance of the obligation.

It is to be presumed, in the absence of statutory provision to the contrary, that this difference was in the mind of the
lawmakers when in Art. 2220 they limited recovery of moral damages to breaches of contract in bad faith. It is true
that negligence may be occasionally so gross as to amount to malice; but that fact must be shown in evidence, and a
carrier's bad faith is not to be lightly inferred from a mere finding that the contract was breached through negligence
of the carrier's employees.

In view of the foregoing considerations, the decision of the Court of Appeals is modified by eliminating the award of
P5,000.00 by way of moral damages. (Court of Appeals Resolution of May 5, 1957). In all other respects, the
judgment is affirmed. No costs in this instance. So ordered.
FAR EAST BANK AND TRUST COMPANY vs. COURT OF APPEALS, LUIS and CLARITA LUNA [G.R.
No. 108164 February 23, 1995]

Some time in October 1986, private respondent Luis A. Luna applied for, and was accorded, a FAREASTCARD issued
by petitioner Far East Bank and Trust Company ("FEBTC") at its Pasig Branch. Upon his request, the bank also issued a
supplemental card to private respondent Clarita S. Luna.

In August 1988, Clarita lost her credit card. FEBTC was forthwith informed. In order to replace the lost card, Clarita
submitted an affidavit of loss. In cases of this nature, the bank's internal security procedures and policy would appear
to be to meanwhile so record the lost card, along with the principal card, as a "Hot Card" or "Cancelled Card" in its
master file.

On 06 October 1988, Luis tendered a despedida lunch for a close friend, a Filipino-American, and another guest at
the Bahia Rooftop Restaurant of the Hotel Intercontinental Manila. To pay for the lunch, Luis presented his
FAREASTCARD to the attending waiter who promptly had it verified through a telephone call to the bank's Credit Card
Department. Since the card was not honored, Luis was forced to pay in cash the bill amounting to P588.13. Naturally,
Luis felt embarrassed by this incident.
In a letter, dated 11 October 1988, private respondent Luis Luna, through counsel, demanded from FEBTC the
payment of damages. Adrian V. Festejo, a vice-president of the bank, expressed the bank's apologies to Luis. In his
letter, dated 03 November 1988, Festejo, in part, said:

In cases when a card is reported to our office as lost, FAREASTCARD undertakes the necessary action to avert
its unauthorized use (such as tagging the card as hotlisted), as it is always our intention to protect our
cardholders.

An investigation of your case however, revealed that FAREASTCARD failed to inform you about its security
policy. Furthermore, an overzealous employee of the Bank's Credit Card Department did not consider the
possibility that it may have been you who was presenting the card at that time (for which reason, the
unfortunate incident occurred). 1

Festejo also sent a letter to the Manager of the Bahia Rooftop Restaurant to assure the latter that private
respondents were "very valued clients" of FEBTC. William Anthony King, Food and Beverage Manager of the
Intercontinental Hotel, wrote back to say that the credibility of private respondent had never been "in question." A
copy of this reply was sent to Luis by Festejo.

Still evidently feeling aggrieved, private respondents, on 05 December 1988, filed a complaint for damages with the
Regional Trial Court ("RTC") of Pasig against FEBTC.

On 30 March 1990, the RTC of Pasig, given the foregoing factual settings, rendered a decision ordering FEBTC to pay
private respondents (a) P300,000.00 moral damages; (b) P50,000.00 exemplary damages; and (c) P20,000.00
attorney's fees.

On appeal to the Court of Appeals, the appellate court affirmed the decision of the trial court.

Its motion for reconsideration having been denied by the appellate court, FEBTC has come to this Court with this
petition for review.

There is merit in this appeal.

In culpa contractual, moral damages may be recovered where the defendant is shown to have acted in bad faith or
with malice in the breach of the contract. 2 The Civil Code provides:
Art. 2220. Willful injury to property may be a legal ground for awarding moral damages if the court should find that,
under the circumstances, such damages are justly due. The same rule applies to breaches of contract where the
defendant acted fraudulently or in bad faith. (Emphasis supplied)

Bad faith, in this context, includes gross, but not simple, negligence.3 Exceptionally, in a contract of carriage, moral
damages are also allowed in case of death of a passenger attributable to the fault (which is presumed 4 ) of the
common carrier.5

Concededly, the bank was remiss in indeed neglecting to personally inform Luis of his own card's cancellation.
Nothing in the findings of the trial court and the appellate court, however, can sufficiently indicate any deliberate
intent on the part of FEBTC to cause harm to private respondents. Neither could FEBTC's negligence in failing to give
personal notice to Luis be considered so gross as to amount to malice or bad faith.

Malice or bad faith implies a conscious and intentional design to do a wrongful act for a dishonest purpose or moral
obliquity; it is different from the negative idea of negligence in that malice or bad faith contemplates a state of mind
affirmatively operating with furtive design or ill will. 6

We are not unaware of the previous rulings of this Court, such as in American Express International,
Inc., vs. Intermediate Appellate Court (167 SCRA 209) and Bank of Philippine Islands vs. Intermediate Appellate
Court (206 SCRA 408), sanctioning the application of Article 21, in relation to Article 2217 and Article 2219 7 of the
Civil Code to a contractual breach similar to the case at bench. Article 21 states:

Art. 21. Any person who wilfully causes loss or injury to another in a manner that is contrary to morals, good
customs or public policy shall compensate the latter for the damage.

Article 21 of the Code, it should be observed, contemplates a conscious act to cause harm. Thus, even if we are to
assume that the provision could properly relate to a breach of contract, its application can be warranted only when
the defendant's disregard of his contractual obligation is so deliberate as to approximate a degree of misconduct
certainly no less worse than fraud or bad faith. Most importantly, Article 21 is a mere declaration of a general
principle in human relations that clearly must, in any case, give way to the specific provision of Article 2220 of the
Civil Code authorizing the grant of moral damages in culpa contractual solely when the breach is due to fraud or bad
faith.

Mr. Justice Jose B.L. Reyes, in his ponencia in Fores vs. Miranda8 explained with great clarity the predominance that
we should give to Article 2220 in contractual relations; we quote:

Anent the moral damages ordered to be paid to the respondent, the same must be discarded. We have
repeatedly ruled (Cachero vs. Manila Yellow Taxicab Co. Inc., 101 Phil. 523; 54 Off. Gaz., [26], 6599; Necesito,
et al. vs. Paras, 104 Phil., 75; 56 Off. Gaz., [23] 4023), that moral damages are not recoverable in damage
actions predicated on a breach of the contract of transportation, in view of Articles 2219 and 2220 of the
new Civil Code, which provide as follows:
Art. 2219. Moral damages may be recovered in the following and analogous cases:

(1) A criminal offense resulting in physical injuries;

(2) Quasi-delicts causing physical injuries;

xxx xxx xxx

Art. 2220. Wilful injury to property may be a legal ground for awarding moral damages if the court should
find that, under the circumstances, such damages are justly due. The same rule applies to breaches of
contract where the defendant acted fraudulently or in bad faith.

By contrasting the provisions of these two articles it immediately becomes apparent that:

(a) In case of breach of contract (including one of transportation) proof of bad faith or fraud (dolus), i.e.,
wanton or deliberately injurious conduct, is essential to justify an award of moral damages; and

(b) That a breach of contract can not be considered included in the descriptive term "analogous cases" used
in Art. 2219; not only because Art. 2220 specifically provides for the damages that are caused contractual
breach, but because the definition of quasi-delict in Art. 2176 of the Code expressly excludes the cases where
there is a "preexisitng contractual relations between the parties."

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

The exception to the basic rule of damages now under consideration is a mishap resulting in the death of a
passenger, in which case Article 1764 makes the common carrier expressly subject to the rule of Art. 2206,
that entitles the spouse, descendants and ascendants of the deceased passenger to "demand moral damages
for mental anguish by reason of the death of the deceased" (Necesito vs. Paras, 104 Phil. 84, Resolution on
motion to reconsider, September 11, 1958). But the exceptional rule of Art. 1764 makes it all the more
evident that where the injured passenger does not die, moral damages are not recoverable unless it is
proved that the carrier was guilty of malice or bad faith. We think it is clear that the mere carelessness of the
carrier's driver does not per se constitute or justify an inference of malice or bad faith on the part of the
carrier; and in the case at bar there is no other evidence of such malice to support the award of moral
damages by the Court of Appeals. To award moral damages for breach of contract, therefore, without proof
of bad faith or malice on the part of the defendant, as required by Art. 2220, would be to violate the clear
provisions of the law, and constitute unwarranted judicial legislation.

xxx xxx xxx

The distinction between fraud, bad faith or malice in the sense of deliberate or wanton wrong doing and
negligence (as mere carelessness) is too fundamental in our law to be ignored (Arts. 1170-1172); their
consequences being clearly differentiated by the Code.
 Art. 2201. In contracts and quasi-contracts, the damages for which the obligor who acted in good faith is liable
shall be those that are the natural and probable consequences of the breach of the obligation, and which the
parties have foreseen or could have reasonably foreseen at the time the obligation was constituted.

In case of fraud, bad faith, malice or wanton attitude, the obligor shall be responsible for all damages which may
be reasonably attributed to the non-performance of the obligation.

It is to be presumed, in the absence of statutory provision to the contrary, that this difference was in the
mind of the lawmakers when in Art. 2220 they limited recovery of moral damages to breaches of contract in
bad faith. It is true that negligence may be occasionally so gross as to amount to malice; but the fact must be
shown in evidence, and a carrier's bad faith is not to be lightly inferred from a mere finding that the contract
was breached through negligence of the carrier's employees.

The Court has not in the process overlooked another rule that a quasi-delict can be the cause for breaching a
contract that might thereby permit the application of applicable principles on tort 9 even where there is a pre-existing
contract between the plaintiff and the defendant (Phil. Airlines vs. Court of Appeals, 106 SCRA 143; Singson vs. Bank
of Phil. Islands, 23 SCRA 1117; and Air France vs. Carrascoso, 18 SCRA 155). This doctrine, unfortunately, cannot
improve private respondents' case for it can aptly govern only where the act or omission complained of would
constitute an actionable tort independently of the contract. The test (whether a quasi-delict can be deemed to
underlie the breach of a contract) can be stated thusly: Where, without a pre-existing contract between two parties,
an act or omission can nonetheless amount to an actionable tort by itself, the fact that the parties are contractually
bound is no bar to the application of quasi-delict provisions to the case. Here, private respondents' damage claim is
predicated solely on their contractual relationship; without such agreement, the act or omission complained of
cannot by itself be held to stand as a separate cause of action or as an independent actionable tort. The Court finds,
therefore, the award of moral damages made by the court a quo, affirmed by the appellate court, to be inordinate
and substantially devoid of legal basis.

Exemplary or corrective damages, in turn, are intended to serve as an example or as correction for the public good in
addition to moral, temperate, liquidated or compensatory damages (Art. 2229, Civil Code; see Prudenciado vs.
Alliance Transport System, 148 SCRA 440; Lopez vs. Pan American World Airways, 16 SCRA 431). In criminal offenses,
exemplary damages are imposed when the crime is committed with one or more aggravating circumstances (Art.
2230, Civil Code). In quasi-delicts, such damages are granted if the defendant is shown to have been so guilty of gross
negligence as to approximate malice (See Art. 2231, Civil Code; CLLC E.G. Gochangco Workers Union vs. NLRC, 161
SCRA 655; Globe Mackay Cable and Radio Corp. vs. CA, 176 SCRA 778). In contracts and quasi-contracts, the court
may award exemplary damages if the defendant is found to have acted in a wanton, fraudulent, reckless, oppressive,
or malevolent manner (Art. 2232, Civil Code; PNB vs. Gen. Acceptance and Finance Corp., 161 SCRA 449).

Given the above premises and the factual circumstances here obtaining, it would also be just as arduous to sustain
the exemplary damages granted by the courts below (see De Leon vs. Court of Appeals, 165 SCRA 166).

Nevertheless, the bank's failure, even perhaps inadvertent, to honor its credit card issued to private respondent Luis
should entitle him to recover a measure of damages sanctioned under Article 2221 of the Civil Code providing thusly:

Art. 2221. Nominal damages are adjudicated in order that a right of the plaintiff, which has been violated or
invaded by the defendant, may be vindicated or recognized, and not for the purpose of indemnifying the
plaintiff for any loss suffered by him.

Reasonable attorney's fees may be recovered where the court deems such recovery to be just and equitable (Art.
2208, Civil Code). We see no issue of sound discretion on the part of the appellate court in allowing the award
thereof by the trial court.

WHEREFORE, the petition for review is given due course. The appealed decision is MODIFIED by deleting the award
of moral and exemplary damages to private respondents; in its stead, petitioner is ordered to pay private respondent
Luis A. Luna an amount of P5,000.00 by way of nominal damages. In all other respects, the appealed decision is
AFFIRMED. No costs.

SO ORDERED.

AIR FRANCE vs. RAFAEL CARRASCOSO and COURT OF APPEALS [G.R. No. L-21438. September 28, 1966]
The Court of First Instance of Manila 1 sentenced petitioner to pay respondent Rafael Carrascoso P25,000.00 by way
of moral damages; P10,000.00 as exemplary damages; P393.20 representing the difference in fare between first class
and tourist class for the portion of the trip Bangkok-Rome, these various amounts with interest at the legal rate, from
the date of the filing of the complaint until paid; plus P3,000.00 for attorneys' fees; and the costs of suit.

On appeal,2 the Court of Appeals slightly reduced the amount of refund on Carrascoso's plane ticket from P393.20 to
P383.10, and voted to affirm the appealed decision "in all other respects", with costs against petitioner.

The case is now before us for review on certiorari.

The facts declared by the Court of Appeals as " fully supported by the evidence of record", are:

Plaintiff, a civil engineer, was a member of a group of 48 Filipino pilgrims that left Manila for Lourdes on
March 30, 1958.

On March 28, 1958, the defendant, Air France, through its authorized agent, Philippine Air Lines, Inc., issued
to plaintiff a "first class" round trip airplane ticket from Manila to Rome. From Manila to Bangkok, plaintiff
travelled in "first class", but at Bangkok, the Manager of the defendant airline forced plaintiff to vacate the
"first class" seat that he was occupying because, in the words of the witness Ernesto G. Cuento, there was a
"white man", who, the Manager alleged, had a "better right" to the seat. When asked to vacate his "first
class" seat, the plaintiff, as was to be expected, refused, and told defendant's Manager that his seat would be
taken over his dead body; a commotion ensued, and, according to said Ernesto G. Cuento, "many of the
Filipino passengers got nervous in the tourist class; when they found out that Mr. Carrascoso was having a
hot discussion with the white man [manager], they came all across to Mr. Carrascoso and pacified Mr.
Carrascoso to give his seat to the white man" (Transcript, p. 12, Hearing of May 26, 1959); and plaintiff
reluctantly gave his "first class" seat in the plane. 3

1. The trust of the relief petitioner now seeks is that we review "all the findings" 4 of respondent Court of Appeals.
Petitioner charges that respondent court failed to make complete findings of fact on all the issues properly laid
before it. We are asked to consider facts favorable to petitioner, and then, to overturn the appellate court's decision.

Coming into focus is the constitutional mandate that "No decision shall be rendered by any court of record without
expressing therein clearly and distinctly the facts and the law on which it is based". 5 This is echoed in the statutory
demand that a judgment determining the merits of the case shall state "clearly and distinctly the facts and the law on
which it is based"; 6 and that "Every decision of the Court of Appeals shall contain complete findings of fact on all
issues properly raised before it". 7

A decision with absolutely nothing to support it is a nullity. It is open to direct attack. 8 The law, however, solely insists
that a decision state the "essential ultimate facts" upon which the court's conclusion is drawn. 9 A court of justice is
not hidebound to write in its decision every bit and piece of evidence 10 presented by one party and the other upon
the issues raised. Neither is it to be burdened with the obligation "to specify in the sentence the facts" which a party
"considered as proved". 11 This is but a part of the mental process from which the Court draws the essential ultimate
facts. A decision is not to be so clogged with details such that prolixity, if not confusion, may result. So long as the
decision of the Court of Appeals contains the necessary facts to warrant its conclusions, it is no error for said court to
withhold therefrom "any specific finding of facts with respect to the evidence for the defense". Because as this Court
well observed, "There is no law that so requires". 12 Indeed, "the mere failure to specify (in the decision) the
contentions of the appellant and the reasons for refusing to believe them is not sufficient to hold the same contrary
to the requirements of the provisions of law and the Constitution". It is in this setting that in Manigque, it was held
that the mere fact that the findings "were based entirely on the evidence for the prosecution without taking into
consideration or even mentioning the appellant's side in the controversy as shown by his own testimony", would not
vitiate the judgment. 13 If the court did not recite in the decision the testimony of each witness for, or each item of
evidence presented by, the defeated party, it does not mean that the court has overlooked such testimony or such
item of evidence. 14 At any rate, the legal presumptions are that official duty has been regularly performed, and that
all the matters within an issue in a case were laid before the court and passed upon by it. 15

Findings of fact, which the Court of Appeals is required to make, maybe defined as "the written statement of the
ultimate facts as found by the court ... and essential to support the decision and judgment rendered thereon". 16They
consist of the court's "conclusions" with respect to the determinative facts in issue". 17 A question of law, upon the
other hand, has been declared as "one which does not call for an examination of the probative value of the evidence
presented by the parties." 18
2. By statute, "only questions of law may be raised" in an appeal by certiorari from a judgment of the Court of
Appeals. 19 That judgment is conclusive as to the facts. It is not appropriately the business of this Court to alter the
facts or to review the questions of fact. 20

With these guideposts, we now face the problem of whether the findings of fact of the Court of Appeals support its
judgment.

3. Was Carrascoso entitled to the first class seat he claims?

It is conceded in all quarters that on March 28, 1958 he paid to and received from petitioner a first class ticket. But
petitioner asserts that said ticket did not represent the true and complete intent and agreement of the parties; that
said respondent knew that he did not have confirmed reservations for first class on any specific flight, although he
had tourist class protection; that, accordingly, the issuance of a first class ticket was no guarantee that he would have
a first class ride, but that such would depend upon the availability of first class seats.

These are matters which petitioner has thoroughly presented and discussed in its brief before the Court of Appeals
under its third assignment of error, which reads: "The trial court erred in finding that plaintiff had confirmed
reservations for, and a right to, first class seats on the "definite" segments of his journey, particularly that from Saigon
to Beirut". 21

And, the Court of Appeals disposed of this contention thus:

Defendant seems to capitalize on the argument that the issuance of a first-class ticket was no guarantee that
the passenger to whom the same had been issued, would be accommodated in the first-class compartment,
for as in the case of plaintiff he had yet to make arrangements upon arrival at every station for the necessary
first-class reservation. We are not impressed by such a reasoning. We cannot understand how a reputable
firm like defendant airplane company could have the indiscretion to give out tickets it never meant to honor
at all. It received the corresponding amount in payment of first-class tickets and yet it allowed the passenger
to be at the mercy of its employees. It is more in keeping with the ordinary course of business that the
company should know whether or riot the tickets it issues are to be honored or not. 22

Not that the Court of Appeals is alone. The trial court similarly disposed of petitioner's contention, thus:

On the fact that plaintiff paid for, and was issued a "First class" ticket, there can be no question. Apart from his
testimony, see plaintiff's Exhibits "A", "A-1", "B", "B-1," "B-2", "C" and "C-1", and defendant's own witness, Rafael
Altonaga, confirmed plaintiff's testimony and testified as follows:

Q. In these tickets there are marks "O.K." From what you know, what does this OK mean?

A. That the space is confirmed.

Q. Confirmed for first class?

A. Yes, "first class". (Transcript, p. 169)

xxx xxx xxx

Defendant tried to prove by the testimony of its witnesses Luis Zaldariaga and Rafael Altonaga that although plaintiff
paid for, and was issued a "first class" airplane ticket, the ticket was subject to confirmation in Hongkong. The court
cannot give credit to the testimony of said witnesses. Oral evidence cannot prevail over written evidence, and
plaintiff's Exhibits "A", "A-l", "B", "B-l", "C" and "C-1" belie the testimony of said witnesses, and clearly show that the
plaintiff was issued, and paid for, a first class ticket without any reservation whatever.

Furthermore, as hereinabove shown, defendant's own witness Rafael Altonaga testified that the reservation for a
"first class" accommodation for the plaintiff was confirmed. The court cannot believe that after such confirmation
defendant had a verbal understanding with plaintiff that the "first class" ticket issued to him by defendant would be
subject to confirmation in Hongkong. 23

We have heretofore adverted to the fact that except for a slight difference of a few pesos in the amount refunded on
Carrascoso's ticket, the decision of the Court of First Instance was affirmed by the Court of Appeals in all other
respects. We hold the view that such a judgment of affirmance has merged the judgment of the lower
court. 24Implicit in that affirmance is a determination by the Court of Appeals that the proceeding in the Court of First
Instance was free from prejudicial error and "all questions raised by the assignments of error and all questions that
might have been raised are to be regarded as finally adjudicated against the appellant". So also, the judgment
affirmed "must be regarded as free from all error". 25 We reached this policy construction because nothing in the
decision of the Court of Appeals on this point would suggest that its findings of fact are in any way at war with those
of the trial court. Nor was said affirmance by the Court of Appeals upon a ground or grounds different from those
which were made the basis of the conclusions of the trial court. 26

If, as petitioner underscores, a first-class-ticket holder is not entitled to a first class seat, notwithstanding the fact that
seat availability in specific flights is therein confirmed, then an air passenger is placed in the hollow of the hands of
an airline. What security then can a passenger have? It will always be an easy matter for an airline aided by its
employees, to strike out the very stipulations in the ticket, and say that there was a verbal agreement to the contrary.
What if the passenger had a schedule to fulfill? We have long learned that, as a rule, a written document speaks a
uniform language; that spoken word could be notoriously unreliable. If only to achieve stability in the relations
between passenger and air carrier, adherence to the ticket so issued is desirable. Such is the case here. The lower
courts refused to believe the oral evidence intended to defeat the covenants in the ticket.

The foregoing are the considerations which point to the conclusion that there are facts upon which the Court of
Appeals predicated the finding that respondent Carrascoso had a first class ticket and was entitled to a first class seat
at Bangkok, which is a stopover in the Saigon to Beirut leg of the flight. 27 We perceive no "welter of distortions by the
Court of Appeals of petitioner's statement of its position", as charged by petitioner. 28 Nor do we subscribe to
petitioner's accusation that respondent Carrascoso "surreptitiously took a first class seat to provoke an issue". 29And
this because, as petitioner states, Carrascoso went to see the Manager at his office in Bangkok "to confirm my seat
and because from Saigon I was told again to see the Manager". 30 Why, then, was he allowed to take a first class seat
in the plane at Bangkok, if he had no seat? Or, if another had a better right to the seat?

4. Petitioner assails respondent court's award of moral damages. Petitioner's trenchant claim is that Carrascoso's
action is planted upon breach of contract; that to authorize an award for moral damages there must be an averment
of fraud or bad faith;31 and that the decision of the Court of Appeals fails to make a finding of bad faith. The pivotal
allegations in the complaint bearing on this issue are:

3. That ... plaintiff entered into a contract of air carriage with the Philippine Air Lines for a valuable
consideration, the latter acting as general agents for and in behalf of the defendant, under which said
contract, plaintiff was entitled to, as defendant agreed to furnish plaintiff, First Class passage on defendant's
plane during the entire duration of plaintiff's tour of Europe with Hongkong as starting point up to and until
plaintiff's return trip to Manila, ... .

4. That, during the first two legs of the trip from Hongkong to Saigon and from Saigon to Bangkok, defendant
furnished to the plaintiff First Class accommodation but only after protestations, arguments and/or insistence
were made by the plaintiff with defendant's employees.

5. That finally, defendant failed to provide First Class passage, but instead furnished plaintiff only Tourist Class
accommodations from Bangkok to Teheran and/or Casablanca, ... the plaintiff has been compelled by
defendant's employees to leave the First Class accommodation berths at Bangkok after he was already
seated.

6. That consequently, the plaintiff, desiring no repetition of the inconvenience and embarrassments brought
by defendant's breach of contract was forced to take a Pan American World Airways plane on his return trip
from Madrid to Manila.32

xxx xxx xxx

2. That likewise, as a result of defendant's failure to furnish First Class accommodations aforesaid, plaintiff suffered
inconveniences, embarrassments, and humiliations, thereby causing plaintiff mental anguish, serious anxiety,
wounded feelings, social humiliation, and the like injury, resulting in moral damages in the amount of P30,000.00. 33

xxx xxx xxx

The foregoing, in our opinion, substantially aver: First, That there was a contract to furnish plaintiff a first class
passage covering, amongst others, the Bangkok-Teheran leg; Second, That said contract was breached when
petitioner failed to furnish first class transportation at Bangkok; and Third, that there was bad faith when petitioner's
employee compelled Carrascoso to leave his first class accommodation berth "after he was already, seated" and to
take a seat in the tourist class, by reason of which he suffered inconvenience, embarrassments and humiliations,
thereby causing him mental anguish, serious anxiety, wounded feelings and social humiliation, resulting in moral
damages. It is true that there is no specific mention of the term bad faith in the complaint. But, the inference of bad
faith is there, it may be drawn from the facts and circumstances set forth therein. 34 The contract was averred to
establish the relation between the parties. But the stress of the action is put on wrongful expulsion.

Quite apart from the foregoing is that (a) right the start of the trial, respondent's counsel placed petitioner on guard
on what Carrascoso intended to prove: That while sitting in the plane in Bangkok, Carrascoso was ousted by
petitioner's manager who gave his seat to a white man; 35 and (b) evidence of bad faith in the fulfillment of the
contract was presented without objection on the part of the petitioner. It is, therefore, unnecessary to inquire as to
whether or not there is sufficient averment in the complaint to justify an award for moral damages. Deficiency in the
complaint, if any, was cured by the evidence. An amendment thereof to conform to the evidence is not even
required. 36 On the question of bad faith, the Court of Appeals declared:

That the plaintiff was forced out of his seat in the first class compartment of the plane belonging to the
defendant Air France while at Bangkok, and was transferred to the tourist class not only without his consent
but against his will, has been sufficiently established by plaintiff in his testimony before the court,
corroborated by the corresponding entry made by the purser of the plane in his notebook which notation
reads as follows:

"First-class passenger was forced to go to the tourist class against his will, and that the captain
refused to intervene",

and by the testimony of an eye-witness, Ernesto G. Cuento, who was a co-passenger. The captain of the plane
who was asked by the manager of defendant company at Bangkok to intervene even refused to do so. It is
noteworthy that no one on behalf of defendant ever contradicted or denied this evidence for the plaintiff. It
could have been easy for defendant to present its manager at Bangkok to testify at the trial of the case, or
yet to secure his disposition; but defendant did neither. 37

The Court of appeals further stated —

Neither is there evidence as to whether or not a prior reservation was made by the white man. Hence, if the
employees of the defendant at Bangkok sold a first-class ticket to him when all the seats had already been
taken, surely the plaintiff should not have been picked out as the one to suffer the consequences and to be
subjected to the humiliation and indignity of being ejected from his seat in the presence of others. Instead of
explaining to the white man the improvidence committed by defendant's employees, the manager adopted
the more drastic step of ousting the plaintiff who was then safely ensconsced in his rightful seat. We are
strengthened in our belief that this probably was what happened there, by the testimony of defendant's
witness Rafael Altonaga who, when asked to explain the meaning of the letters "O.K." appearing on the
tickets of plaintiff, said "that the space is confirmed for first class. Likewise, Zenaida Faustino, another witness
for defendant, who was the chief of the Reservation Office of defendant, testified as follows:

"Q How does the person in the ticket-issuing office know what reservation the passenger has
arranged with you?

A They call us up by phone and ask for the confirmation." (t.s.n., p. 247, June 19, 1959)

In this connection, we quote with approval what the trial Judge has said on this point:

Why did the, using the words of witness Ernesto G. Cuento, "white man" have a "better right" to the
seat occupied by Mr. Carrascoso? The record is silent. The defendant airline did not prove "any
better", nay, any right on the part of the "white man" to the "First class" seat that the plaintiff was
occupying and for which he paid and was issued a corresponding "first class" ticket.

If there was a justified reason for the action of the defendant's Manager in Bangkok, the defendant
could have easily proven it by having taken the testimony of the said Manager by deposition, but
defendant did not do so; the presumption is that evidence willfully suppressed would be adverse if
produced [Sec. 69, par (e), Rules of Court]; and, under the circumstances, the Court is constrained to
find, as it does find, that the Manager of the defendant airline in Bangkok not merely asked but
 threatened the plaintiff to throw him out of the plane if he did not give up his "first class" seat
because the said Manager wanted to accommodate, using the words of the witness Ernesto G.
Cuento, the "white man".38

It is really correct to say that the Court of Appeals in the quoted portion first transcribed did not use the term
"bad faith". But can it be doubted that the recital of facts therein points to bad faith? The manager not only
prevented Carrascoso from enjoying his right to a first class seat; worse, he imposed his arbitrary will; he
forcibly ejected him from his seat, made him suffer the humiliation of having to go to the tourist class
compartment - just to give way to another passenger whose right thereto has not been established.
Certainly, this is bad faith. Unless, of course, bad faith has assumed a meaning different from what is
understood in law. For, "bad faith" contemplates a "state of mind affirmatively operating with furtive design
or with some motive of self-interest or will or for ulterior purpose." 39

And if the foregoing were not yet sufficient, there is the express finding of bad faith in the judgment of the
Court of First Instance, thus:

The evidence shows that the defendant violated its contract of transportation with plaintiff in bad
faith, with the aggravating circumstances that defendant's Manager in Bangkok went to the extent of
threatening the plaintiff in the presence of many passengers to have him thrown out of the airplane
to give the "first class" seat that he was occupying to, again using the words of the witness Ernesto G.
Cuento, a "white man" whom he (defendant's Manager) wished to accommodate, and the defendant
has not proven that this "white man" had any "better right" to occupy the "first class" seat that the
plaintiff was occupying, duly paid for, and for which the corresponding "first class" ticket was issued
by the defendant to him.40

5. The responsibility of an employer for the tortious act of its employees need not be essayed. It is well settled in
law. 41 For the willful malevolent act of petitioner's manager, petitioner, his employer, must answer. Article 21 of the
Civil Code says:

ART. 21. Any person who willfully causes loss or injury to another in a manner that is contrary to morals,
good customs or public policy shall compensate the latter for the damage.

In parallel circumstances, we applied the foregoing legal precept; and, we held that upon the provisions of Article
2219 (10), Civil Code, moral damages are recoverable. 42

6. A contract to transport passengers is quite different in kind and degree from any other contractual relation. 43 And
this, because of the relation which an air-carrier sustains with the public. Its business is mainly with the travelling
public. It invites people to avail of the comforts and advantages it offers. The contract of air carriage, therefore,
generates a relation attended with a public duty. Neglect or malfeasance of the carrier's employees, naturally, could
give ground for an action for damages.

Passengers do not contract merely for transportation. They have a right to be treated by the carrier's employees with
kindness, respect, courtesy and due consideration. They are entitled to be protected against personal misconduct,
injurious language, indignities and abuses from such employees. So it is, that any rule or discourteous conduct on the
part of employees towards a passenger gives the latter an action for damages against the carrier. 44

Thus, "Where a steamship company 45 had accepted a passenger's check, it was a breach of contract and a tort, giving
a right of action for its agent in the presence of third persons to falsely notify her that the check was worthless and
demand payment under threat of ejection, though the language used was not insulting and she was not
ejected." 46 And this, because, although the relation of passenger and carrier is "contractual both in origin and
nature" nevertheless "the act that breaks the contract may be also a tort". 47 And in another case, "Where a
passenger on a railroad train, when the conductor came to collect his fare tendered him the cash fare to a point
where the train was scheduled not to stop, and told him that as soon as the train reached such point he would pay
the cash fare from that point to destination, there was nothing in the conduct of the passenger which justified the
conductor in using insulting language to him, as by calling him a lunatic," 48 and the Supreme Court of South Carolina
there held the carrier liable for the mental suffering of said passenger.1awphîl.nèt

Petitioner's contract with Carrascoso is one attended with public duty. The stress of Carrascoso's action as we have
said, is placed upon his wrongful expulsion. This is a violation of public duty by the petitioner air carrier — a case
of quasi-delict. Damages are proper.
7. Petitioner draws our attention to respondent Carrascoso's testimony, thus —

Q You mentioned about an attendant. Who is that attendant and purser?

A When we left already — that was already in the trip — I could not help it. So one of the flight attendants
approached me and requested from me my ticket and I said, What for? and she said, "We will note that you
transferred to the tourist class". I said, "Nothing of that kind. That is tantamount to accepting my transfer."
And I also said, "You are not going to note anything there because I am protesting to this transfer".

Q Was she able to note it?

A No, because I did not give my ticket.

Q About that purser?

A Well, the seats there are so close that you feel uncomfortable and you don't have enough leg room, I stood
up and I went to the pantry that was next to me and the purser was there. He told me, "I have recorded the
incident in my notebook." He read it and translated it to me — because it was recorded in French — "First
class passenger was forced to go to the tourist class against his will, and that the captain refused to
intervene."

Mr. VALTE —

I move to strike out the last part of the testimony of the witness because the best evidence would be the
notes. Your Honor.

COURT —

I will allow that as part of his testimony. 49

Petitioner charges that the finding of the Court of Appeals that the purser made an entry in his notebook reading
"First class passenger was forced to go to the tourist class against his will, and that the captain refused to intervene"
is predicated upon evidence [Carrascoso's testimony above] which is incompetent. We do not think so. The subject of
inquiry is not the entry, but the ouster incident. Testimony on the entry does not come within the proscription of the
best evidence rule. Such testimony is admissible. 49a

Besides, from a reading of the transcript just quoted, when the dialogue happened, the impact of the startling
occurrence was still fresh and continued to be felt. The excitement had not as yet died down. Statements then, in this
environment, are admissible as part of the res gestae. 50 For, they grow "out of the nervous excitement and mental
and physical condition of the declarant". 51 The utterance of the purser regarding his entry in the notebook was
spontaneous, and related to the circumstances of the ouster incident. Its trustworthiness has been guaranteed. 52 It
thus escapes the operation of the hearsay rule. It forms part of the res gestae.

At all events, the entry was made outside the Philippines. And, by an employee of petitioner. It would have been an
easy matter for petitioner to have contradicted Carrascoso's testimony. If it were really true that no such entry was
made, the deposition of the purser could have cleared up the matter.

We, therefore, hold that the transcribed testimony of Carrascoso is admissible in evidence.

8. Exemplary damages are well awarded. The Civil Code gives the court ample power to grant exemplary damages —
in contracts and quasi- contracts. The only condition is that defendant should have "acted in a wanton, fraudulent,
reckless, oppressive, or malevolent manner." 53 The manner of ejectment of respondent Carrascoso from his first
class seat fits into this legal precept. And this, in addition to moral damages. 54

9. The right to attorney's fees is fully established. The grant of exemplary damages justifies a similar judgment for
attorneys' fees. The least that can be said is that the courts below felt that it is but just and equitable that attorneys'
fees be given. 55 We do not intend to break faith with the tradition that discretion well exercised — as it was here —
should not be disturbed.

10. Questioned as excessive are the amounts decreed by both the trial court and the Court of Appeals, thus:
P25,000.00 as moral damages; P10,000.00, by way of exemplary damages, and P3,000.00 as attorneys' fees. The task
of fixing these amounts is primarily with the trial court. 56 The Court of Appeals did not interfere with the same. The
dictates of good sense suggest that we give our imprimatur thereto. Because, the facts and circumstances point to
the reasonableness thereof. 57

On balance, we say that the judgment of the Court of Appeals does not suffer from reversible error. We accordingly
vote to affirm the same. Costs against petitioner. So ordered.

PHILIPPINE SCHOOL OF BUSINESS ADMINISTRATION, et al. vs. COURT OF APPEALS

[G.R. No. 84698 February 4, 1992]

A stabbing incident on 30 August 1985 which caused the death of Carlitos Bautista while on the second-floor
premises of the Philippine School of Business Administration (PSBA) prompted the parents of the deceased to file suit
in the Regional Trial Court of Manila (Branch 47) presided over by Judge (now Court of Appeals justice) Regina
Ordoñez-Benitez, for damages against the said PSBA and its corporate officers. At the time of his death, Carlitos was
enrolled in the third year commerce course at the PSBA. It was established that his assailants were not members of
the school's academic community but were elements from outside the school.

Specifically, the suit impleaded the PSBA and the following school authorities: Juan D. Lim (President), Benjamin P.
Paulino (Vice-President), Antonio M. Magtalas (Treasurer/Cashier), Col. Pedro Sacro (Chief of Security) and a Lt. M.
Soriano (Assistant Chief of Security). Substantially, the plaintiffs (now private respondents) sought to adjudge them
liable for the victim's untimely demise due to their alleged negligence, recklessness and lack of security precautions,
means and methods before, during and after the attack on the victim. During the proceedings a quo, Lt. M. Soriano
terminated his relationship with the other petitioners by resigning from his position in the school.

Defendants a quo (now petitioners) sought to have the suit dismissed, alleging that since they are presumably sued
under Article 2180 of the Civil Code, the complaint states no cause of action against them, as jurisprudence on the
subject is to the effect that academic institutions, such as the PSBA, are beyond the ambit of the rule in the afore-
stated article.

The respondent trial court, however, overruled petitioners' contention and thru an order dated 8 December 1987,
denied their motion to dismiss. A subsequent motion for reconsideration was similarly dealt with by an order dated
25 January 1988. Petitioners then assailed the trial court's disposition before the respondent appellate court which,
in a decision * promulgated on 10 June 1988, affirmed the trial court's orders. On 22 August 1988, the respondent
appellate court resolved to deny the petitioners' motion for reconsideration. Hence, this petition.

At the outset, it is to be observed that the respondent appellate court primarily anchored its decision on the law
of quasi-delicts, as enunciated in Articles 2176 and 2180 of the Civil Code. 1 Pertinent portions of the appellate
court's now assailed ruling state:

Article 2180 (formerly Article 1903) of the Civil Code is an adoption from the old Spanish Civil Code.
The comments of Manresa and learned authorities on its meaning should give way to present day
changes. The law is not fixed and flexible (sic); it must be dynamic. In fact, the greatest value and
significance of law as a rule of conduct in (sic) its flexibility to adopt to changing social conditions and
its capacity to meet the new challenges of progress.

Construed in the light of modern day educational system, Article 2180 cannot be construed in its
narrow concept as held in the old case of Exconde vs. Capuno 2 and Mercado vs. Court of
Appeals; 3hence, the ruling in the Palisoc 4 case that it should apply to all kinds of educational
institutions, academic or vocational.
 At any rate, the law holds the teachers and heads of the school staff liable unless they relieve
themselves of such liability pursuant to the last paragraph of Article 2180 by "proving that they
observed all the diligence to prevent damage." This can only be done at a trial on the merits of the
case. 5

While we agree with the respondent appellate court that the motion to dismiss the complaint was correctly denied
and the complaint should be tried on the merits, we do not however agree with the premises of the appellate court's
ruling.

Article 2180, in conjunction with Article 2176 of the Civil Code, establishes the rule of in loco parentis. This Court
discussed this doctrine in the afore-cited cases of Exconde, Mendoza, Palisoc and, more recently, in Amadora
vs.Court of Appeals. 6 In all such cases, it had been stressed that the law (Article 2180) plainly provides that the
damage should have been caused or inflicted by pupils or students of he educational institution sought to be held
liable for the acts of its pupils or students while in its custody. However, this material situation does not exist in the
present case for, as earlier indicated, the assailants of Carlitos were not students of the PSBA, for whose acts the
school could be made liable.

However, does the appellate court's failure to consider such material facts mean the exculpation of the petitioners
from liability? It does not necessarily follow.

When an academic institution accepts students for enrollment, there is established a contract between them,
resulting in bilateral obligations which both parties are bound to comply with. 7 For its part, the school undertakes to
provide the student with an education that would presumably suffice to equip him with the necessary tools and skills
to pursue higher education or a profession. On the other hand, the student covenants to abide by the school's
academic requirements and observe its rules and regulations.

Institutions of learning must also meet the implicit or "built-in" obligation of providing their students with an
atmosphere that promotes or assists in attaining its primary undertaking of imparting knowledge. Certainly, no
student can absorb the intricacies of physics or higher mathematics or explore the realm of the arts and other
sciences when bullets are flying or grenades exploding in the air or where there looms around the school premises a
constant threat to life and limb. Necessarily, the school must ensure that adequate steps are taken to maintain peace
and order within the campus premises and to prevent the breakdown thereof.

Because the circumstances of the present case evince a contractual relation between the PSBA and Carlitos Bautista,
the rules on quasi-delict do not really govern. 8 A perusal of Article 2176 shows that obligations arising from quasi-
delicts or tort, also known as extra-contractual obligations, arise only between parties not otherwise bound by
contract, whether express or implied. However, this impression has not prevented this Court from determining the
existence of a tort even when there obtains a contract. In Air France vs. Carrascoso (124 Phil. 722), the private
respondent was awarded damages for his unwarranted expulsion from a first-class seat aboard the petitioner airline.
It is noted, however, that the Court referred to the petitioner-airline's liability as one arising from tort, not one arising
from a contract of carriage. In effect, Air France is authority for the view that liability from tort may exist even if there
is a contract, for the act that breaks the contract may be also a tort. (Austro-America S.S. Co. vs. Thomas, 248 Fed.
231).

This view was not all that revolutionary, for even as early as 1918, this Court was already of a similar mind. In Cangco
vs. Manila Railroad (38 Phil. 780), Mr. Justice Fisher elucidated thus:

The field of non-contractual obligation is much broader than that of contractual obligation,
comprising, as it does, the whole extent of juridical human relations. These two fields, figuratively
speaking, concentric; that is to say, the mere fact that a person is bound to another by contract does
not relieve him from extra-contractual liability to such person. When such a contractual relation
exists the obligor may break the contract under such conditions that the same act which constitutes
a breach of the contract would have constituted the source of an extra-contractual obligation had no
contract existed between the parties.

Immediately what comes to mind is the chapter of the Civil Code on Human Relations, particularly Article 21, which
provides:

Any person who wilfully causes loss or injury to another in a manner that is contrary to morals, good
custom or public policy shall compensate the latter for the damage. (emphasis supplied).
Air France penalized the racist policy of the airline which emboldened the petitioner's employee to forcibly oust the
private respondent to cater to the comfort of a white man who allegedly "had a better right to the seat." In Austro-
American, supra, the public embarrassment caused to the passenger was the justification for the Circuit Court of
Appeals, (Second Circuit), to award damages to the latter. From the foregoing, it can be concluded that should the act
which breaches a contract be done in bad faith and be violative of Article 21, then there is a cause to view the act as
constituting a quasi-delict.

In the circumstances obtaining in the case at bar, however, there is, as yet, no finding that the contract between the
school and Bautista had been breached thru the former's negligence in providing proper security measures. This
would be for the trial court to determine. And, even if there be a finding of negligence, the same could give rise
generally to a breach of contractual obligation only. Using the test of Cangco, supra, the negligence of the school
would not be relevant absent a contract. In fact, that negligence becomes material only because of the contractual
relation between PSBA and Bautista. In other words, a contractual relation is a condition sine qua non to the school's
liability. The negligence of the school cannot exist independently of the contract, unless the negligence occurs under
the circumstances set out in Article 21 of the Civil Code.

This Court is not unmindful of the attendant difficulties posed by the obligation of schools, above-mentioned, for
conceptually a school, like a common carrier, cannot be an insurer of its students against all risks. This is specially
true in the populous student communities of the so-called "university belt" in Manila where there have been
reported several incidents ranging from gang wars to other forms of hooliganism. It would not be equitable to expect
of schools to anticipate all types of violent trespass upon their premises, for notwithstanding the security measures
installed, the same may still fail against an individual or group determined to carry out a nefarious deed inside school
premises and environs. Should this be the case, the school may still avoid liability by proving that the breach of its
contractual obligation to the students was not due to its negligence, here statutorily defined to be the omission of
that degree of diligence which is required by the nature of the obligation and corresponding to the circumstances of
persons, time and place. 9

As the proceedings a quo have yet to commence on the substance of the private respondents' complaint, the record
is bereft of all the material facts. Obviously, at this stage, only the trial court can make such a determination from the
evidence still to unfold.

WHEREFORE, the foregoing premises considered, the petition is DENIED. The court of origin (RTC, Manila, Br. 47) is
hereby ordered to continue proceedings consistent with this ruling of the Court. Costs against the petitioners.

SO ORDERED.
JUAN, CORAZON, CARLOTA, CARLOS, and ANTHONY SYQUIA vs. COURT OF APPEALS, and MANILA MEMORIAL PARK
CEMETERY, INC. [G.R. No. 98695 January 27, 1993]

Herein petitioners, Juan J. Syquia and Corazon C. Syquia, Carlota C. Syquia, Carlos C. Syquia, and Anthony Syquia,
were the parents and siblings, respectively, of the deceased Vicente Juan Syquia. On March 5, 1979, they filed a
complaint1 in the then Court of First Instance against herein private respondent, Manila Memorial Park Cemetery, Inc.
for recovery of damages arising from breach of contract and/or quasi-delict. The trial court dismissed the complaint.

The antecedent facts, as gathered by the respondent Court, are as follows:

On March 5, 1979, Juan, Corazon, Carlota and Anthony all surnamed Syquia, plaintiff-appellants herein, filed a
complaint for damages against defendant-appellee, Manila Memorial Park Cemetery, Inc.

The complaint alleged among others, that pursuant to a Deed of Sale (Contract No. 6885) dated August 27,
1969 and Interment Order No. 7106 dated July 21, 1978 executed between plaintiff-appellant Juan J. Syquia
and defendant-appellee, the former, father of deceased Vicente Juan J. Syquia authorized and instructed
defendant-appellee to inter the remains of deceased in the Manila Memorial Park Cemetery in the morning of
July 25, 1978 conformably and in accordance with defendant-appellant's (sic) interment procedures; that on
September 4, 1978, preparatory to transferring the said remains to a newly purchased family plot also at the
Manila Memorial Park Cemetery, the concrete vault encasing the coffin of the deceased was removed from its
niche underground with the assistance of certain employees of defendant-appellant (sic); that as the concrete
vault was being raised to the surface, plaintiffs-appellants discovered that the concrete vault had a hole
approximately three (3) inches in diameter near the bottom of one of the walls closing out the width of the
vault on one end and that for a certain length of time (one hour, more or less), water drained out of the hole;
that because of the aforesaid discovery, plaintiffs-appellants became agitated and upset with concern that the
water which had collected inside the vault might have risen as it in fact did rise, to the level of the coffin and
flooded the same as well as the remains of the deceased with ill effects thereto; that pursuant to an authority
granted by the Municipal Court of Parañaque, Metro Manila on September 14, 1978, plaintiffs-appellants with
the assistance of licensed morticians and certain personnel of defendant-appellant (sic) caused the opening of
the concrete vault on September 15, 1978; that upon opening the vault, the following became apparent to the
 plaintiffs-appellants: (a) the interior walls of the concrete vault showed evidence of total flooding; (b) the coffin
was entirely damaged by water, filth and silt causing the wooden parts to warp and separate and to crack the
viewing glass panel located directly above the head and torso of the deceased; (c) the entire lining of the
coffin, the clothing of the deceased, and the exposed parts of the deceased's remains were damaged and
soiled by the action of the water and silt and were also coated with filth.

Due to the alleged unlawful and malicious breach by the defendant-appellee of its obligation to deliver a
defect-free concrete vault designed to protect the remains of the deceased and the coffin against the elements
which resulted in the desecration of deceased's grave and in the alternative, because of defendant-appellee's
gross negligence conformably to Article 2176 of the New Civil Code in failing to seal the concrete vault, the
complaint prayed that judgment be rendered ordering defendant-appellee to pay plaintiffs-appellants
P30,000.00 for actual damages, P500,000.00 for moral damages, exemplary damages in the amount
determined by the court, 20% of defendant-appellee's total liability as attorney's fees, and expenses of
litigation and costs of suit.2

In dismissing the complaint, the trial court held that the contract between the parties did not guarantee that the
cement vault would be waterproof; that there could be no quasi-delict because the defendant was not guilty of any
fault or negligence, and because there was a pre-existing contractual relation between the Syquias and defendant
Manila Memorial Park Cemetery, Inc.. The trial court also noted that the father himself, Juan Syquia, chose the
gravesite despite knowing that said area had to be constantly sprinkled with water to keep the grass green and that
water would eventually seep through the vault. The trial court also accepted the explanation given by defendant for
boring a hole at the bottom side of the vault: "The hole had to be bored through the concrete vault because if it has
no hole the vault will (sic) float and the grave would be filled with water and the digging would caved (sic) in the
earth, the earth would caved (sic) in the (sic) fill up the grave." 3

From this judgment, the Syquias appealed. They alleged that the trial court erred in holding that the contract allowed
the flooding of the vault; that there was no desecration; that the boring of the hole was justifiable; and in not
awarding damages.

The Court of Appeals in the Decision4 dated December 7, 1990 however, affirmed the judgment of dismissal.
Petitioner's motion for reconsideration was denied in a Resolution dated April 25, 1991. 5

Unsatisfied with the respondent Court's decision, the Syquias filed the instant petition. They allege herein that the
Court of Appeals committed the following errors when it:
1. held that the contract and the Rules and Resolutions of private respondent allowed the flooding of the vault and the
entrance thereto of filth and silt;

2. held that the act of boring a hole was justifiable and corollarily, when it held that no act of desecration was committed;

3. overlooked and refused to consider relevant, undisputed facts, such as those which have been stipulated upon by the
parties, testified to by private respondent's witnesses, and admitted in the answer, which could have justified a different
conclusion;

4. held that there was no tort because of a pre-existing contract and the absence of fault/negligence; and

5. did not award the P25,000.00 actual damages which was agreed upon by the parties, moral and exemplary damages, and
attorney's fees.

At the bottom of the entire proceedings is the act of boring a hole by private respondent on the vault of the
deceased kin of the bereaved petitioners. The latter allege that such act was either a breach of private respondent's
contractual obligation to provide a sealed vault, or, in the alternative, a negligent act which constituted a quasi-delict.
Nonetheless, petitioners claim that whatever kind of negligence private respondent has committed, the latter is liable
for desecrating the grave of petitioners' dead.

In the instant case, We are called upon to determine whether the Manila Memorial Park Cemetery, Inc., breached its
contract with petitioners; or, alternatively, whether private respondent was guilty of a tort.

We understand the feelings of petitioners and empathize with them. Unfortunately, however, We are more inclined
to answer the foregoing questions in the negative. There is not enough ground, both in fact and in law, to justify a
reversal of the decision of the respondent Court and to uphold the pleas of the petitioners.
With respect to herein petitioners' averment that private respondent has committed culpa aquiliana, the Court of
Appeals found no negligent act on the part of private respondent to justify an award of damages against it. Although
a pre-existing contractual relation between the parties does not preclude the existence of a culpa aquiliana, We find
no reason to disregard the respondent's Court finding that there was no negligence.

Art. 2176. Whoever by act or omission causes damage to another, there being fault or negligence, is
obliged to pay for the damage done. Such fault or negligence, if there is no pre-existing contractual
relation between the parties, is called a quasi-delict . . . . (Emphasis supplied).

In this case, it has been established that the Syquias and the Manila Memorial Park Cemetery, Inc., entered
into a contract entitled "Deed of Sale and Certificate of Perpetual Care" 6 on August 27, 1969. That agreement
governed the relations of the parties and defined their respective rights and obligations. Hence, had there
been actual negligence on the part of the Manila Memorial Park Cemetery, Inc., it would be held liable not
for a quasi-delict or culpa aquiliana, but for culpa contractual as provided by Article 1170 of the Civil Code, to
wit:

Those who in the performance of their obligations are guilty of fraud, negligence, or delay, and those
who in any manner contravene the tenor thereof, are liable for damages.

The Manila Memorial Park Cemetery, Inc. bound itself to provide the concrete box to be send in the interment. Rule
17 of the Rules and Regulations of private respondent provides that:

Rule 17. Every earth interment shall be made enclosed in a concrete box, or in an outer wall of stone, brick or
concrete, the actual installment of which shall be made by the employees of the Association. 7

Pursuant to this above-mentioned Rule, a concrete vault was provided on July 27, 1978, the day before the
interment, and was, on the same day, installed by private respondent's employees in the grave which was dug earlier.
After the burial, the vault was covered by a cement lid.

Petitioners however claim that private respondent breached its contract with them as the latter held out in the
brochure it distributed that the . . . lot may hold single or double internment (sic) underground in sealed concrete
vault."8 Petitioners claim that the vault provided by private respondent was not sealed, that is, not waterproof.
Consequently, water seeped through the cement enclosure and damaged everything inside it.

We do not agree. There was no stipulation in the Deed of Sale and Certificate of Perpetual Care and in the Rules and
Regulations of the Manila Memorial Park Cemetery, Inc. that the vault would be waterproof. Private respondent's
witness, Mr. Dexter Heuschkel, explained that the term "sealed" meant "closed." 9 On the other hand, the word "seal"
is defined as . . . any of various closures or fastenings . . . that cannot be opened without rupture and that serve as a
check against tampering or unauthorized opening." 10 The meaning that has been given by private respondent to the
word conforms with the cited dictionary definition. Moreover, it is also quite clear that "sealed" cannot be equated
with "waterproof". Well settled is the rule that when the terms of the contract are clear and leave no doubt as to the
intention of the contracting parties, then the literal meaning of the stipulation shall control. 11 Contracts should be
interpreted according to their literal meaning and should not be interpreted beyond their obvious intendment. 12 As
ruled by the respondent Court:

When plaintiff-appellant Juan J. Syquia affixed his signature to the Deed of Sale (Exhibit "A") and the attached
Rules and Regulations (Exhibit "1"), it can be assumed that he has accepted defendant-appellee's undertaking to
merely provide a concrete vault. He can not now claim that said concrete vault must in addition, also be
waterproofed (sic). It is basic that the parties are bound by the terms of their contract, which is the law between
them (Rizal Commercial Banking Corporation vs. Court of Appeals, et al. 178 SCRA 739). Where there is nothing
in the contract which is contrary to law, morals, good customs, public order, or public policy, the validity of the
contract must be sustained (Phil. American Insurance Co. vs. Judge Pineda, 175 SCRA 416). Consonant with this
ruling, a contracting party cannot incur a liability more than what is expressly specified in his undertaking. It
cannot be extended by implication, beyond the terms of the contract (Rizal Commercial Banking Corporation vs.
Court of Appeals, supra). And as a rule of evidence, where the terms of an agreement are reduced to writing, the
document itself, being constituted by the parties as the expositor of their intentions, is the only instrument of
evidence in respect of that agreement which the law will recognize, so long as its (sic) exists for the purpose of
evidence (Starkie, Ev., pp. 648, 655, Kasheenath vs. Chundy, 5 W.R. 68 cited in Francisco, Revised Rules of Court in
the Phil. p. 153, 1973 Ed.). And if the terms of the contract are clear and leave no doubt upon the intention of the
 contracting parties, the literal meaning of its stipulations shall control (Santos vs. CA, et al., G. R. No. 83664, Nov.
13, 1989; Prudential Bank & Trust Co. vs. Community Builders Co., Inc., 165 SCRA 285; Balatero vs. IAC).

We hold, therefore, that private respondent did not breach the tenor of its obligation to the Syquias. While this may
be so, can private respondent be liable for culpa aquiliana for boring the hole on the vault? It cannot be denied that
the hole made possible the entry of more water and soil than was natural had there been no hole.

The law defines negligence as the "omission of that diligence which is required by the nature of the obligation and
corresponds with the circumstances of the persons, of the time and of the place." 14 In the absence of stipulation or
legal provision providing the contrary, the diligence to be observed in the performance of the obligation is that which
is expected of a good father of a family.

The circumstances surrounding the commission of the assailed act — boring of the hole — negate the allegation of
negligence. The reason for the act was explained by Henry Flores, Interment Foreman, who said that:

Q It has been established in this particular case that a certain Vicente Juan Syquia was interred on July 25,
1978 at the Parañaque Cemetery of the Manila Memorial Park Cemetery, Inc., will you please tell the Hon.
Court what or whether you have participation in connection with said internment (sic)?

A A day before Juan (sic) Syquia was buried our personnel dug a grave. After digging the next morning a
vault was taken and placed in the grave and when the vault was placed on the grave a hole was placed on
the vault so that water could come into the vault because it was raining heavily then because the vault has
no hole the vault will float and the grave would be filled with water and the digging would caved (sic) in
and the earth, the earth would (sic) caved in and fill up the grave. 15 (Emphasis ours)

Except for the foreman's opinion that the concrete vault may float should there be a heavy rainfall, from the above-
mentioned explanation, private respondent has exercised the diligence of a good father of a family in preventing the
accumulation of water inside the vault which would have resulted in the caving in of earth around the grave filling
the same with earth.

Thus, finding no evidence of negligence on the part of private respondent, We find no reason to award damages in
favor of petitioners.

In the light of the foregoing facts, and construed in the language of the applicable laws and jurisprudence, We are
constrained to AFFIRM in toto the decision of the respondent Court of Appeals dated December 7, 1990. No costs.

SO ORDERED.

VICENTE CALALAS vs. COURT OF APPEALS, ELIZA JUJEURCHE SUNGA and FRANCISCO SALVA
[G.R. No. 122039 May 31, 2000]

This is a petition for review on certiorari of the decision1 of the Court of Appeals, dated March 31, 1991, reversing the
contrary decision of the Regional Trial Court, Branch 36, Dumaguete City, and awarding damages instead to private
respondent Eliza Jujeurche Sunga as plaintiff in an action for breach of contract of carriage.

The facts, as found by the Court of Appeals, are as follows:

At 10 o'clock in the morning of August 23, 1989, private respondent Eliza Jujeurche G. Sunga, then a college
freshman majoring in Physical Education at the Siliman University, took a passenger jeepney owned and operated by
petitioner Vicente Calalas. As the jeepney was filled to capacity of about 24 passengers, Sunga was given by the
conductor an "extension seat," a wooden stool at the back of the door at the rear end of the vehicle.

On the way to Poblacion Sibulan, Negros Occidental, the jeepney stopped to let a passenger off. As she was seated at
the rear of the vehicle, Sunga gave way to the outgoing passenger. Just as she was doing so, an Isuzu truck driven by
Iglecerio Verena and owned by Francisco Salva bumped the left rear portion of the jeepney. As a result, Sunga was
injured. She sustained a fracture of the "distal third of the left tibia-fibula with severe necrosis of the underlying
skin." Closed reduction of the fracture, long leg circular casting, and case wedging were done under sedation. Her
confinement in the hospital lasted from August 23 to September 7, 1989. Her attending physician, Dr. Danilo V.
Oligario, an orthopedic surgeon, certified she would remain on a cast for a period of three months and would have to
ambulate in crutches during said period.
On October 9, 1989, Sunga filed a complaint for damages against Calalas, alleging violation of the contract of carriage
by the former in failing to exercise the diligence required of him as a common carrier. Calalas, on the other hand,
filed a third-party complaint against Francisco Salva, the owner of the Isuzu truck.

The lower court rendered judgment against Salva as third-party defendant and absolved Calalas of liability, holding
that it was the driver of the Isuzu truck who was responsible for the accident. It took cognizance of another case
(Civil Case No. 3490), filed by Calalas against Salva and Verena, for quasi-delict, in which Branch 37 of the same court
held Salva and his driver Verena jointly liable to Calalas for the damage to his jeepney.

On appeal to the Court of Appeals, the ruling of the lower court was reversed on the ground that Sunga's cause of
action was based on a contract of carriage, not quasi-delict, and that the common carrier failed to exercise the
diligence required under the Civil Code. The appellate court dismissed the third-party complaint against Salva and
adjudged Calalas liable for damages to Sunga. The dispositive portion of its decision reads:

WHEREFORE, the decision appealed from is hereby REVERSED and SET ASIDE, and another one is
entered ordering defendant-appellee Vicente Calalas to pay plaintiff-appellant:

(1) P50,000.00 as actual and compensatory damages;

(2) P50,000.00 as moral damages;

(3) P10,000.00 as attorney's fees; and

(4) P1,000.00 as expenses of litigation; and

(5) to pay the costs.

SO ORDERED.

Hence, this petition. Petitioner contends that the ruling in Civil Case No. 3490 that the negligence of Verena was the
proximate cause of the accident negates his liability and that to rule otherwise would be to make the common carrier
an insurer of the safety of its passengers. He contends that the bumping of the jeepney by the truck owned by Salva
was a caso fortuito. Petitioner further assails the award of moral damages to Sunga on the ground that it is not
supported by evidence.

The petition has no merit.

The argument that Sunga is bound by the ruling in Civil Case No. 3490 finding the driver and the owner of the truck
liable for quasi-delict ignores the fact that she was never a party to that case and, therefore, the principle of res
judicata does not apply.

Nor are the issues in Civil Case No. 3490 and in the present case the same. The issue in Civil Case No. 3490 was
whether Salva and his driver Verena were liable for quasi-delict for the damage caused to petitioner's jeepney. On
the other hand, the issue in this case is whether petitioner is liable on his contract of carriage. The first, quasi-delict,
also known as culpa aquiliana or culpa extra contractual, has as its source the negligence of the tortfeasor.
The second, breach of contract or culpa contractual, is premised upon the negligence in the performance of a
contractual obligation.

Consequently, in quasi-delict, the negligence or fault should be clearly established because it is the basis of the
action, whereas in breach of contract, the action can be prosecuted merely by proving the existence of the contract
and the fact that the obligor, in this case the common carrier, failed to transport his passenger safely to his
destination.2 In case of death or injuries to passengers, Art. 1756 of the Civil Code provides that common carriers are
presumed to have been at fault or to have acted negligently unless they prove that they observed extraordinary
diligence as defined in Arts. 1733 and 1755 of the Code. This provision necessarily shifts to the common carrier the
burden of proof.

There is, thus, no basis for the contention that the ruling in Civil Case No. 3490, finding Salva and his driver Verena
liable for the damage to petitioner's jeepney, should be binding on Sunga. It is immaterial that the proximate cause of
the collision between the jeepney and the truck was the negligence of the truck driver. The doctrine of proximate
cause is applicable only in actions for quasi-delict, not in actions involving breach of contract. The doctrine is a device
for imputing liability to a person where there is no relation between him and another party. In such a case, the
obligation is created by law itself. But, where there is a pre-existing contractual relation between the parties, it is the
parties themselves who create the obligation, and the function of the law is merely to regulate the relation thus
created. Insofar as contracts of carriage are concerned, some aspects regulated by the Civil Code are those respecting
the diligence required of common carriers with regard to the safety of passengers as well as the presumption of
negligence in cases of death or injury to passengers. It provides:

Art. 1733. Common carriers, from the nature of their business and for reasons of public policy, are
bound to observe extraordinary diligence in the vigilance over the goods and for the safety of the
passengers transported by them, according to all the circumstances of each case.

Such extraordinary diligence in the vigilance over the goods is further expressed in articles 1734,
1735, and 1746, Nos. 5, 6, and 7, while the extraordinary diligence for the safety of the passengers is
further set forth in articles 1755 and 1756.

Art. 1755. A common carrier is bound to carry the passengers safely as far as human care and
foresight can provide, using the utmost diligence of very cautious persons, with due regard for all the
circumstances.

Art. 1756. In case of death of or injuries to passengers, common carriers are presumed to have been
at fault or to have acted negligently, unless they prove that they observed extraordinary diligence as
prescribed by articles 1733 and 1755.

In the case at bar, upon the happening of the accident, the presumption of negligence at once arose, and it became
the duty of petitioner to prove that he had to observe extraordinary diligence in the care of his passengers.

Now, did the driver of jeepney carry Sunga "safely as far as human care and foresight could provide, using the utmost
diligence of very cautious persons, with due regard for all the circumstances" as required by Art. 1755? We do not
think so. Several factors militate against petitioner's contention.

First, as found by the Court of Appeals, the jeepney was not properly parked, its rear portion being exposed about
two meters from the broad shoulders of the highway, and facing the middle of the highway in a diagonal angle. This
is a violation of the R.A. No. 4136, as amended, or the Land Transportation and Traffic Code, which provides:

Sec. 54. Obstruction of Traffic. — No person shall drive his motor vehicle in such a manner as to
obstruct or impede the passage of any vehicle, nor, while discharging or taking on passengers or
loading or unloading freight, obstruct the free passage of other vehicles on the highway.

Second, it is undisputed that petitioner's driver took in more passengers than the allowed seating capacity of the
jeepney, a violation of §32(a) of the same law. It provides:

Exceeding registered capacity. — No person operating any motor vehicle shall allow more passengers
or more freight or cargo in his vehicle than its registered capacity.

The fact that Sunga was seated in an "extension seat" placed her in a peril greater than that to which the other
passengers were exposed. Therefore, not only was petitioner unable to overcome the presumption of negligence
imposed on him for the injury sustained by Sunga, but also, the evidence shows he was actually negligent in
transporting passengers.

We find it hard to give serious thought to petitioner's contention that Sunga's taking an "extension seat" amounted
to an implied assumption of risk. It is akin to arguing that the injuries to the many victims of the tragedies in our seas
should not be compensated merely because those passengers assumed a greater risk of drowning by boarding an
overloaded ferry. This is also true of petitioner's contention that the jeepney being bumped while it was improperly
parked constitutes caso fortuito. A caso fortuito is an event which could not be foreseen, or which, though foreseen,
was inevitable.3 This requires that the following requirements be present: (a) the cause of the breach is independent
of the debtor's will; (b) the event is unforeseeable or unavoidable; (c) the event is such as to render it impossible for
the debtor to fulfill his obligation in a normal manner, and (d) the debtor did not take part in causing the injury to the
creditor.4 Petitioner should have foreseen the danger of parking his jeepney with its body protruding two meters into
the highway.

Finally, petitioner challenges the award of moral damages alleging that it is excessive and without basis in law. We
find this contention well taken.
In awarding moral damages, the Court of Appeals stated:

Plaintiff-appellant at the time of the accident was a first-year college student in that school year
1989-1990 at the Silliman University, majoring in Physical Education. Because of the injury, she was
not able to enroll in the second semester of that school year. She testified that she had no more
intention of continuing with her schooling, because she could not walk and decided not to pursue
her degree, major in Physical Education "because of my leg which has a defect already."

Plaintiff-appellant likewise testified that even while she was under confinement, she cried in pain
because of her injured left foot. As a result of her injury, the Orthopedic Surgeon also certified that
she has "residual bowing of the fracture side." She likewise decided not to further pursue Physical
Education as her major subject, because "my left leg . . . has a defect already."

Those are her physical pains and moral sufferings, the inevitable bedfellows of the injuries that she
suffered. Under Article 2219 of the Civil Code, she is entitled to recover moral damages in the sum of
P50,000.00, which is fair, just and reasonable.

As a general rule, moral damages are not recoverable in actions for damages predicated on a breach of contract for it
is not one of the items enumerated under Art. 2219 of the Civil Code. 5 As an exception, such damages are
recoverable: (1) in cases in which the mishap results in the death of a passenger, as provided in Art. 1764, in relation
to Art. 2206(3) of the Civil Code; and (2) in the cases in which the carrier is guilty of fraud or bad faith, as provided in
Art. 2220.6

In this case, there is no legal basis for awarding moral damages since there was no factual finding by the appellate
court that petitioner acted in bad faith in the performance of the contract of carriage. Sunga's contention that
petitioner's admission in open court that the driver of the jeepney failed to assist her in going to a nearby hospital
cannot be construed as an admission of bad faith. The fact that it was the driver of the Isuzu truck who took her to
the hospital does not imply that petitioner was utterly indifferent to the plight of his injured passenger. If at all, it is
merely implied recognition by Verena that he was the one at fault for the accident.

WHEREFORE, the decision of the Court of Appeals, dated March 31, 1995, and its resolution, dated September 11,
1995, are AFFIRMED, with the MODIFICATION that the award of moral damages is DELETED.

SO ORDERED.

AMADO PICART vs. FRANK SMITH, JR. [G.R. No. L-12219 March 15, 1918]

In this action the plaintiff, Amado Picart, seeks to recover of the defendant, Frank Smith, jr., the sum of P31,000, as
damages alleged to have been caused by an automobile driven by the defendant. From a judgment of the Court of
First Instance of the Province of La Union absolving the defendant from liability the plaintiff has appealed.
The occurrence which gave rise to the institution of this action took place on December 12, 1912, on the Carlatan
Bridge, at San Fernando, La Union. It appears that upon the occasion in question the plaintiff was riding on his pony
over said bridge. Before he had gotten half way across, the defendant approached from the opposite direction in an
automobile, going at the rate of about ten or twelve miles per hour. As the defendant neared the bridge he saw a
horseman on it and blew his horn to give warning of his approach. He continued his course and after he had taken
the bridge he gave two more successive blasts, as it appeared to him that the man on horseback before him was not
observing the rule of the road.

The plaintiff, it appears, saw the automobile coming and heard the warning signals. However, being perturbed by the
novelty of the apparition or the rapidity of the approach, he pulled the pony closely up against the railing on the right
side of the bridge instead of going to the left. He says that the reason he did this was that he thought he did not have
sufficient time to get over to the other side. The bridge is shown to have a length of about 75 meters and a width of
4.80 meters. As the automobile approached, the defendant guided it toward his left, that being the proper side of
the road for the machine. In so doing the defendant assumed that the horseman would move to the other side. The
pony had not as yet exhibited fright, and the rider had made no sign for the automobile to stop. Seeing that the pony
was apparently quiet, the defendant, instead of veering to the right while yet some distance away or slowing down,
continued to approach directly toward the horse without diminution of speed. When he had gotten quite near, there
being then no possibility of the horse getting across to the other side, the defendant quickly turned his car
sufficiently to the right to escape hitting the horse alongside of the railing where it as then standing; but in so doing
the automobile passed in such close proximity to the animal that it became frightened and turned its body across the
bridge with its head toward the railing. In so doing, it as struck on the hock of the left hind leg by the flange of the car
and the limb was broken. The horse fell and its rider was thrown off with some violence. From the evidence adduced
in the case we believe that when the accident occurred the free space where the pony stood between the
automobile and the railing of the bridge was probably less than one and one half meters. As a result of its injuries the
horse died. The plaintiff received contusions which caused temporary unconsciousness and required medical
attention for several days.

The question presented for decision is whether or not the defendant in maneuvering his car in the manner above
described was guilty of negligence such as gives rise to a civil obligation to repair the damage done; and we are of the
opinion that he is so liable. As the defendant started across the bridge, he had the right to assume that the horse and
the rider would pass over to the proper side; but as he moved toward the center of the bridge it was demonstrated
to his eyes that this would not be done; and he must in a moment have perceived that it was too late for the horse to
cross with safety in front of the moving vehicle. In the nature of things this change of situation occurred while the
automobile was yet some distance away; and from this moment it was not longer within the power of the plaintiff to
escape being run down by going to a place of greater safety. The control of the situation had then passed entirely to
the defendant; and it was his duty either to bring his car to an immediate stop or, seeing that there were no other
persons on the bridge, to take the other side and pass sufficiently far away from the horse to avoid the danger of
collision. Instead of doing this, the defendant ran straight on until he was almost upon the horse. He was, we think,
deceived into doing this by the fact that the horse had not yet exhibited fright. But in view of the known nature of
horses, there was an appreciable risk that, if the animal in question was unacquainted with automobiles, he might
get exited and jump under the conditions which here confronted him. When the defendant exposed the horse and
rider to this danger he was, in our opinion, negligent in the eye of the law.

The test to determine the existence of negligence in a particular case may be stated as follows: Did the defendant in
doing the alleged negligent act use that person would have used in the same situation? If not, then he is guilty of
negligence. The law here in effect adopts the standard supposed to be supplied by the imaginary conduct of the
discreet paterfamilias of the Roman law. The existence of negligence in a given case is not determined by reference
to the personal judgment of the actor in the situation before him. The law considers what would be reckless,
blameworthy, or negligent in the man of ordinary intelligence and prudence and determines liability by that.

The question as to what would constitute the conduct of a prudent man in a given situation must of course be always
determined in the light of human experience and in view of the facts involved in the particular case. Abstract
speculations cannot here be of much value but this much can be profitably said: Reasonable men govern their
conduct by the circumstances which are before them or known to them. They are not, and are not supposed to be,
omniscient of the future. Hence they can be expected to take care only when there is something before them to
suggest or warn of danger. Could a prudent man, in the case under consideration, foresee harm as a result of the
course actually pursued? If so, it was the duty of the actor to take precautions to guard against that harm.
Reasonable foresight of harm, followed by ignoring of the suggestion born of this prevision, is always necessary
before negligence can be held to exist. Stated in these terms, the proper criterion for determining the existence of
negligence in a given case is this: Conduct is said to be negligent when a prudent man in the position of the
tortfeasor would have foreseen that an effect harmful to another was sufficiently probable to warrant his foregoing
conduct or guarding against its consequences.

Applying this test to the conduct of the defendant in the present case we think that negligence is clearly established.
A prudent man, placed in the position of the defendant, would in our opinion, have recognized that the course which
he was pursuing was fraught with risk, and would therefore have foreseen harm to the horse and the rider as
reasonable consequence of that course. Under these circumstances the law imposed on the defendant the duty to
guard against the threatened harm.

It goes without saying that the plaintiff himself was not free from fault, for he was guilty of antecedent negligence in
planting himself on the wrong side of the road. But as we have already stated, the defendant was also negligent; and
in such case the problem always is to discover which agent is immediately and directly responsible. It will be noted
that the negligent acts of the two parties were not contemporaneous, since the negligence of the defendant
succeeded the negligence of the plaintiff by an appreciable interval. Under these circumstances the law is that the
person who has the last fair chance to avoid the impending harm and fails to do so is chargeable with the
consequences, without reference to the prior negligence of the other party.

The decision in the case of Rkes vs. Atlantic, Gulf and Pacific Co. (7 Phil. Rep., 359) should perhaps be mentioned in
this connection. This Court there held that while contributory negligence on the part of the person injured did not
constitute a bar to recovery, it could be received in evidence to reduce the damages which would otherwise have
been assessed wholly against the other party. The defendant company had there employed the plaintiff, as a laborer,
to assist in transporting iron rails from a barge in Manila harbor to the company's yards located not far away. The rails
were conveyed upon cars which were hauled along a narrow track. At certain spot near the water's edge the track
gave way by reason of the combined effect of the weight of the car and the insecurity of the road bed. The car was in
consequence upset; the rails slid off; and the plaintiff's leg was caught and broken. It appeared in evidence that the
accident was due to the effects of the typhoon which had dislodged one of the supports of the track. The court found
that the defendant company was negligent in having failed to repair the bed of the track and also that the plaintiff
was, at the moment of the accident, guilty of contributory negligence in walking at the side of the car instead of
being in front or behind. It was held that while the defendant was liable to the plaintiff by reason of its negligence in
having failed to keep the track in proper repair nevertheless the amount of the damages should be reduced on
account of the contributory negligence in the plaintiff. As will be seen the defendant's negligence in that case
consisted in an omission only. The liability of the company arose from its responsibility for the dangerous condition of
its track. In a case like the one now before us, where the defendant was actually present and operating the
automobile which caused the damage, we do not feel constrained to attempt to weigh the negligence of the
respective parties in order to apportion the damage according to the degree of their relative fault. It is enough to say
that the negligence of the defendant was in this case the immediate and determining cause of the accident and that
the antecedent negligence of the plaintiff was a more remote factor in the case.

A point of minor importance in the case is indicated in the special defense pleaded in the defendant's answer, to the
effect that the subject matter of the action had been previously adjudicated in the court of a justice of the peace. In
this connection it appears that soon after the accident in question occurred, the plaintiff caused criminal proceedings
to be instituted before a justice of the peace charging the defendant with the infliction of serious injuries (lesiones
graves). At the preliminary investigation the defendant was discharged by the magistrate and the proceedings were
dismissed. Conceding that the acquittal of the defendant at the trial upon the merits in a criminal prosecution for the
offense mentioned would be res adjudicata upon the question of his civil liability arising from negligence -- a point
upon which it is unnecessary to express an opinion -- the action of the justice of the peace in dismissing the criminal
proceeding upon the preliminary hearing can have no effect.

From what has been said it results that the judgment of the lower court must be reversed, and judgment is her
rendered that the plaintiff recover of the defendant the sum of two hundred pesos (P200), with costs of other
instances. The sum here awarded is estimated to include the value of the horse, medical expenses of the plaintiff, the
loss or damage occasioned to articles of his apparel, and lawful interest on the whole to the date of this recovery.
The other damages claimed by the plaintiff are remote or otherwise of such character as not to be recoverable. So
ordered.

JARCO MARKETING CORPORATION, LEONARDO KONG, JOSE TIOPE and ELISA PANELO vs.
COURT OF APPEALS, CONRADO and CRISELDA AGUILAR [G.R. No. 129792 December 21, 1999]
In this petition for review on certiorari under Rule 45 of the Rules of Court, petitioners seek the reversal of the 17
June 1996 decision 1 of the Court of Appeals in C.A. G.R. No. CV 37937 and the resolution 2 denying their motion for
reconsideration. The assailed decision set aside the 15 January 1992 judgment of the Regional Trial Court (RTC),
Makati City, Branch 60 in Civil Case No. 7119 and ordered petitioners to pay damages and attorney's fees to private
respondents Conrado and Criselda (CRISELDA) Aguilar.

Petitioner Jarco Marketing Corporation is the owner of Syvel's Department Store, Makati City. Petitioners Leonardo
Kong, Jose Tiope and Elisa Panelo are the store's branch manager, operations manager, and supervisor, respectively.
Private respondents are spouses and the parents of Zhieneth Aguilar (ZHIENETH).

In the afternoon of 9 May 1983, CRISELDA and ZHIENETH were at the 2nd floor of Syvel's Department Store, Makati
City. CRISELDA was signing her credit card slip at the payment and verification counter when she felt a sudden gust of
wind and heard a loud thud. She looked behind her. She then beheld her daughter ZHIENETH on the floor, her young
body pinned by the bulk of the store's gift-wrapping counter/structure. ZHIENETH was crying and screaming for help.
Although shocked, CRISELDA was quick to ask the assistance of the people around in lifting the counter and retrieving
ZHIENETH from the floor. 3

ZHIENETH was quickly rushed to the Makati Medical Center where she was operated on. The next day ZHIENETH lost
her speech and thereafter communicated with CRISELDA by writing on a magic slate. The injuries she sustained took
their toil on her young body. She died fourteen (14) days after the accident or on 22 May 1983, on the hospital bed.
She was six years old. 4

The cause of her death was attributed to the injuries she sustained. The provisional medical certificate 5 issued by
ZHIENETH's attending doctor described the extent of her injuries:

Diagnoses:

1. Shock, severe, sec. to intra-abdominal injuries due to blunt injury

2. Hemorrhage, massive, intraperitoneal sec. to laceration, (L) lobe liver

3. Rupture, stomach, anterior & posterior walls

4. Complete transection, 4th position, duodenum

5. Hematoma, extensive, retroperitoneal

6. Contusion, lungs, severe

CRITICAL

After the burial of their daughter, private respondents demanded upon petitioners the reimbursement of the
hospitalization, medical bills and wake and funeral expenses 6 which they had incurred. Petitioners refused to pay.
Consequently, private respondents filed a complaint for damages, docketed as Civil Case No. 7119 wherein they
sought the payment of P157,522.86 for actual damages, P300,000 for moral damages, P20,000 for attorney's fees
and an unspecified amount for loss of income and exemplary damages.

In their answer with counterclaim, petitioners denied any liability for the injuries and consequent death of ZHIENETH.
They claimed that CRISELDA was negligent in exercising care and diligence over her daughter by allowing her to freely
roam around in a store filled with glassware and appliances. ZHIENETH too, was guilty of contributory negligence
since she climbed the counter, triggering its eventual collapse on her. Petitioners also emphasized that the counter
was made of sturdy wood with a strong support; it never fell nor collapsed for the past fifteen years since its
construction.

Additionally, petitioner Jarco Marketing Corporation maintained that it observed the diligence of a good father of a
family in the selection, supervision and control of its employees. The other petitioners likewise raised due care and
diligence in the performance of their duties and countered that the complaint was malicious for which they suffered
besmirched reputation and mental anguish. They sought the dismissal of the complaint and an award of moral and
exemplary damages and attorney's fees in their favor.

In its decision 7 the trial court dismissed the complaint and counterclaim after finding that the preponderance of the
evidence favored petitioners. It ruled that the proximate cause of the fall of the counter on ZHIENETH was her act of
clinging to it. It believed petitioners' witnesses who testified that ZHIENETH clung to the counter, afterwhich the
structure and the girl fell with the structure falling on top of her, pinning her stomach. In contrast, none of private
respondents' witnesses testified on how the counter fell. The trial court also held that CRISELDA's negligence
contributed to ZHIENETH's accident.

In absolving petitioners from any liability, the trial court reasoned that the counter was situated at the end or corner
of the 2nd floor as a precautionary measure hence, it could not be considered as an attractive nuisance. 8 The
counter was higher than ZHIENETH. It has been in existence for fifteen years. Its structure was safe and well-
balanced. ZHIENETH, therefore, had no business climbing on and clinging to it.

Private respondents appealed the decision, attributing as errors of the trial court its findings that: (1) the proximate
cause of the fall of the counter was ZHIENETH's misbehavior; (2) CRISELDA was negligent in her care of ZHIENETH; (3)
petitioners were not negligent in the maintenance of the counter; and (4) petitioners were not liable for the death of
ZHIENETH.

Further, private respondents asserted that ZHIENETH should be entitled to the conclusive presumption that a child
below nine (9) years is incapable of contributory negligence. And even if ZHIENETH, at six (6) years old, was already
capable of contributory negligence, still it was physically impossible for her to have propped herself on the counter.
She had a small frame (four feet high and seventy pounds) and the counter was much higher and heavier than she
was. Also, the testimony of one of the store's former employees, Gerardo Gonzales, who accompanied ZHIENETH
when she was brought to the emergency room of the Makati Medical Center belied petitioners' theory that
ZHIENETH climbed the counter. Gonzales claimed that when ZHIENETH was asked by the doctor what she did,
ZHIENETH replied, "[N]othing, I did not come near the counter and the counter just fell on me." 9 Accordingly,
Gonzales' testimony on ZHIENETH's spontaneous declaration should not only be considered as part of res gestaebut
also accorded credit.

Moreover, negligence could not be imputed to CRISELDA for it was reasonable for her to have let go of ZHIENETH at
the precise moment that she was signing the credit card slip.

Finally, private respondents vigorously maintained that the proximate cause of ZHIENETH's death, was petitioners'
negligence in failing to institute measures to have the counter permanently nailed.

On the other hand, petitioners argued that private respondents raised purely factual issues which could no longer be
disturbed. They explained that ZHIENETH's death while unfortunate and tragic, was an accident for which neither
CRISELDA nor even ZHIENETH could entirely be held faultless and blameless. Further, petitioners adverted to the trial
court's rejection of Gonzales' testimony as unworthy of credence.

As to private respondent's claim that the counter should have been nailed to the ground, petitioners justified that it
was not necessary. The counter had been in existence for several years without any prior accident and was
deliberately placed at a corner to avoid such accidents. Truth to tell, they acted without fault or negligence for they
had exercised due diligence on the matter. In fact, the criminal case 10 for homicide through simple negligence filed by
private respondents against the individual petitioners was dismissed; a verdict of acquittal was rendered in their
favor.

The Court of Appeals, however, decided in favor of private respondents and reversed the appealed judgment. It
found that petitioners were negligent in maintaining a structurally dangerous counter. The counter was shaped like
an inverted "L" 11 with a top wider than the base. It was top heavy and the weight of the upper portion was neither
evenly distributed nor supported by its narrow base. Thus, the counter was defective, unstable and dangerous; a
downward pressure on the overhanging portion or a push from the front could cause the counter to fall. Two former
employees of petitioners had already previously brought to the attention of the management the danger the counter
could cause. But the latter ignored their concern. The Court of Appeals faulted the petitioners for this omission, and
concluded that the incident that befell ZHIENETH could have been avoided had petitioners repaired the defective
counter. It was inconsequential that the counter had been in use for some time without a prior incident.

The Court of Appeals declared that ZHIENETH, who was below seven (7) years old at the time of the incident, was
absolutely incapable of negligence or other tort. It reasoned that since a child under nine (9) years could not be held
liable even for an intentional wrong, then the six-year old ZHIENETH could not be made to account for a mere
mischief or reckless act. It also absolved CRISELDA of any negligence, finding nothing wrong or out of the ordinary in
momentarily allowing ZHIENETH to walk while she signed the document at the nearby counter.
The Court of Appeals also rejected the testimonies of the witnesses of petitioners. It found them biased and
prejudiced. It instead gave credit to the testimony of disinterested witness Gonzales. The Court of Appeals then
awarded P99,420.86 as actual damages, the amount representing the hospitalization expenses incurred by private
respondents as evidenced by the hospital's statement of account. 12 It denied an award for funeral expenses for lack
of proof to substantiate the same. Instead, a compensatory damage of P50,000 was awarded for the death of
ZHIENETH.

We quote the dispositive portion of the assailed decision, 13 thus:

WHEREFORE, premises considered, the judgment of the lower court is SET ASIDE and another one is entered
against [petitioners], ordering them to pay jointly and severally unto [private respondents] the following:

1. P50,000.00 by way of compensatory damages for the death of Zhieneth Aguilar,

with legal interest (6% p.a.) from 27 April 1984;

2. P99,420.86 as reimbursement for hospitalization expenses incurred; with legal

interest (6% p.a.) from 27 April 1984;

3. P100,000.00 as moral and exemplary damages;

4. P20,000.00 in the concept of attorney's fees; and

5. Costs.

Private respondents sought a reconsideration of the decision but the same was denied in the Court of Appeals'
resolution 14 of 16 July 1997.

Petitioners now seek the reversal of the Court of Appeals' decision and the reinstatement of the judgment of the trial
court. Petitioners primarily argue that the Court of Appeals erred in disregarding the factual findings and conclusions
of the trial court. They stress that since the action was based on tort, any finding of negligence on the part of the
private respondents would necessarily negate their claim for damages, where said negligence was the proximate
cause of the injury sustained. The injury in the instant case was the death of ZHIENETH. The proximate cause was
ZHIENETH's act of clinging to the counter. This act in turn caused the counter to fall on her. This and CRISELDA's
contributory negligence, through her failure to provide the proper care and attention to her child while inside the
store, nullified private respondents' claim for damages. It is also for these reasons that parents are made accountable
for the damage or injury inflicted on others by their minor children. Under these circumstances, petitioners could not
be held responsible for the accident that befell ZHIENETH.

Petitioners also assail the credibility of Gonzales who was already separated from Syvel's at the time he testified;
hence, his testimony might have been tarnished by ill-feelings against them.

For their part, private respondents principally reiterated their arguments that neither ZHIENETH nor CRISELDA was
negligent at any time while inside the store; the findings and conclusions of the Court of Appeals are substantiated by
the evidence on record; the testimony of Gonzales, who heard ZHIENETH comment on the incident while she was in
the hospital's emergency room should receive credence; and finally, ZHIENETH's part of the res gestaedeclaration
"that she did nothing to cause the heavy structure to fall on her" should be considered as the correct version of the
gruesome events.

We deny the petition.

The two issues to be resolved are: (1) whether the death of ZHIENETH was accidental or attributable to negligence;
and (2) in case of a finding of negligence, whether the same was attributable to private respondents for maintaining a
defective counter or to CRISELDA and ZHIENETH for failing to exercise due and reasonable care while inside the store
premises.

An accident pertains to an unforeseen event in which no fault or negligence attaches to the defendant. 15 It is "a
fortuitous circumstance, event or happening; an event happening without any human agency, or if happening wholly
or partly through human agency, an event which under the circumstances is unusual or unexpected by the person to
whom it happens." 16

On the other hand, negligence is the omission to do something which a reasonable man, guided by those
considerations which ordinarily regulate the conduct of human affairs, would do, or the doing of something which a
prudent and reasonable man would not do. 17 Negligence is "the failure to observe, for the protection of the interest
of another person, that degree of care, precaution and vigilance which the circumstances justly demand, whereby
such other person suffers injury." 18

Accident and negligence are intrinsically contradictory; one cannot exist with the other. Accident occurs when the
person concerned is exercising ordinary care, which is not caused by fault of any person and which could not have
been prevented by any means suggested by common prudence. 19

The test in determining the existence of negligence is enunciated in the landmark case of Plicart v. Smith, 20 thus: Did
the defendant in doing the alleged negligent act use that reasonable care and caution which an ordinarily prudent
person would have used in the same situation? If not, then he is guilty of negligence. 21

We rule that the tragedy which befell ZHIENETH was no accident and that ZHIENETH's death could only be attributed
to negligence.

We quote the testimony of Gerardo Gonzales who was at the scene of the incident and accompanied CRISELDA and
ZHIENETH to the hospital:

Q While at the Makati Medical Center, did you hear or notice anything while the
child was being treated?

A At the emergency room we were all surrounding the child. And when the doctor
asked the child "what did you do," the child said "nothing, I did not come near the
counter and the counter just fell on me."

Q (COURT TO ATTY. BELTRAN)

You want the words in Tagalog to be translated?

ATTY. BELTRAN

Yes, your Honor.

COURT

Granted. Intercalate "wala po, hindi po ako lumapit doon. Basta bumagsak." 22

This testimony of Gonzales pertaining to ZHIENETH's statement formed (and should be admitted as) part of the res
gestae under Section 42, Rule 130 of the Rules of Court, thus:

Part of res gestae. Statements made by a person while a startling occurrence is taking place or
immediately prior or subsequent thereto with respect to the circumstances thereof, may be given in
evidence as part of the res gestae. So, also, statements accompanying an equivocal act material to
the issue, and giving it a legal significance, may be received as part of the res gestae.

It is axiomatic that matters relating to declarations of pain or suffering and statements made to a physician are
generally considered declarations and admissions. 23 All that is required for their admissibility as part of the res
gestae is that they be made or uttered under the influence of a startling event before the declarant had the time to
think and concoct a falsehood as witnessed by the person who testified in court. Under the circumstances thus
described, it is unthinkable for ZHIENETH, a child of such tender age and in extreme pain, to have lied to a doctor
whom she trusted with her life. We therefore accord credence to Gonzales' testimony on the matter, i.e., ZHIENETH
performed no act that facilitated her tragic death. Sadly, petitioners did, through their negligence or omission to
secure or make stable the counter's base.

Gonzales' earlier testimony on petitioners' insistence to keep and maintain the structurally unstable gift-wrapping
counter proved their negligence, thus:

Q When you assumed the position as gift wrapper at the second floor, will you
please describe the gift wrapping counter, were you able to examine?

A Because every morning before I start working I used to clean that counter and
since not nailed and it was only standing on the floor, it was shaky.
 xxx xxx xxx

Q Will you please describe the counter at 5:00 o'clock [sic] in the afternoon on [sic]
May 9 1983?

A At that hour on May 9, 1983, that counter was standing beside the verification
counter. And since the top of it was heavy and considering that it was not nailed, it
can collapse at anytime, since the top is heavy.

xxx xxx xxx

Q And what did you do?

A I informed Mr. Maat about that counter which is [sic] shaky and since Mr. Maat is
fond of putting display decorations on tables, he even told me that I would put some
decorations. But since I told him that it not [sic] nailed and it is shaky he told me
"better inform also the company about it." And since the company did not do
anything about the counter, so I also did not do anything about the
counter. 24 [Emphasis supplied]

Ramon Guevarra, another former employee, corroborated the testimony of Gonzales, thus:

Q Will you please described [sic] to the honorable Court the counter where you were
assigned in January 1983?

xxx xxx xxx

A That counter assigned to me was when my supervisor ordered me to carry that

counter to another place. I told him that the counter needs nailing and it has to be
nailed because it might cause injury or accident to another since it was shaky.

Q When that gift wrapping counter was transferred at the second floor on February
12, 1983, will you please describe that to the honorable Court?

A I told her that the counter wrapper [sic] is really in good [sic] condition; it was
shaky. I told her that we had to nail it.

Q When you said she, to whom are you referring to [sic]?

A I am referring to Ms. Panelo, sir.

Q And what was the answer of Ms. Panelo when you told her that the counter was
shaky?

A She told me "Why do you have to teach me. You are only my subordinate and you
are to teach me?" And she even got angry at me when I told her that.

xxx xxx xxx

Q From February 12, 1983 up to May 9, 1983, what if any, did Ms. Panelo or any
employee of the management do to that (sic)

xxx xxx xxx

Witness:

None, sir. They never nailed the counter. They only nailed the counter after the
accident happened. 25 [Emphasis supplied]

Without doubt, petitioner Panelo and another store supervisor were personally informed of the danger posed by the
unstable counter. Yet, neither initiated any concrete action to remedy the situation nor ensure the safety of the
store's employees and patrons as a reasonable and ordinary prudent man would have done. Thus, as confronted by
the situation petitioners miserably failed to discharge the due diligence required of a good father of a family.
On the issue of the credibility of Gonzales and Guevarra, petitioners failed to establish that the former's testimonies
were biased and tainted with partiality. Therefore, the allegation that Gonzales and Guevarra's testimonies were
blemished by "ill feelings" against petitioners — since they (Gonzales and Guevarra) were already separated from the
company at the time their testimonies were offered in court — was but mere speculation and deserved scant
consideration.

It is settled that when the issue concerns the credibility of witnesses, the appellate courts will not as a general rule
disturb the findings of the trial court, which is in a better position to determine the same. The trial court has the
distinct advantage of actually hearing the testimony of and observing the deportment of the witnesses. 26 However,
the rule admits of exceptions such as when its evaluation was reached arbitrarily or it overlooked or failed to
appreciate some facts or circumstances of weight and substance which could affect the result of the case. 27 In the
instant case, petitioners failed to bring their claim within the exception.

Anent the negligence imputed to ZHIENETH, we apply the conclusive presumption that favors children below nine (9)
years old in that they are incapable of contributory negligence. In his book, 28 former Judge Cezar S. Sangco stated:

In our jurisdiction, a person under nine years of age is conclusively presumed to have acted without
discernment, and is, on that account, exempt from criminal liability. The same presumption and a like
exemption from criminal liability obtains in a case of a person over nine and under fifteen years of
age, unless it is shown that he has acted with discernment. Since negligence may be a felony and
a quasi-delict and required discernment as a condition of liability, either criminal or civil, a child
under nine years of age is, by analogy, conclusively presumed to be incapable of negligence; and that
the presumption of lack of discernment or incapacity for negligence in the case of a child over nine
but under fifteen years of age is a rebuttable one, under our law. The rule, therefore, is that a child
under nine years of age must be conclusively presumed incapable of contributory negligence as a
matter of law. [Emphasis supplied]

Even if we attribute contributory negligence to ZHIENETH and assume that she climbed over the counter, no injury
should have occurred if we accept petitioners' theory that the counter was stable and sturdy. For if that was the
truth, a frail six-year old could not have caused the counter to collapse. The physical analysis of the counter by both
the trial court and Court of Appeals and a scrutiny of the evidence 29 on record reveal otherwise, i.e., it was not
durable after all. Shaped like an inverted "L," the counter was heavy, huge, and its top laden with formica. It
protruded towards the customer waiting area and its base was not secured. 30

CRISELDA too, should be absolved from any contributory negligence. Initially, ZHIENETH held on to CRISELDA's waist,
later to the latter's hand. 31 CRISELDA momentarily released the child's hand from her clutch when she signed her
credit card slip. At this precise moment, it was reasonable and usual for CRISELDA to let go of her child. Further, at
the time ZHIENETH was pinned down by the counter, she was just a foot away from her mother; and the gift-
wrapping counter was just four meters away from CRISELDA. 32 The time and distance were both significant.
ZHIENETH was near her mother and did not loiter as petitioners would want to impress upon us. She even admitted
to the doctor who treated her at the hospital that she did not do anything; the counter just fell on her.

WHEREFORE, in view of all the foregoing, the instant petition is DENIED and the challenged decision of the Court of
Appeals of 17 June 1996 in C.A. G.R. No. CV 37937 is hereby AFFIRMED.

Costs against petitioners.

SO ORDERED.
JULIAN DEL ROSARIO vs. MANILA ELECTRIC COMPANY [G.R. No. L-35283. November 5, 1932]

This action was instituted by Julian del Rosario for the purpose of recovering damages from the Manila Electric
Company for the death of his son, Alberto del Rosario, resulting from a shock from a wire used by the defendant for
the transmission of electricity. The accident occurred on Dimas-Alang Street, in the municipality of Caloocan,
Province of Rizal. Damages are claimed in the complaint in the amount of P30,000. Upon hearing the cause the trial
court absolved the defendant, and the plaintiff appealed.

Shortly after 2 o'clock on the afternoon of August 4, 1930, trouble developed in a wire used by the defendant on
Dimas-Alang Street for the purpose of conducting electricity used in lighting the City of Manila and its suburbs. Jose
Noguera, who had charge of a tienda nearby, first noticed that the wire was burning and its connections smoking. In
a short while the wire parted and one of the ends of the wire fell to the ground among some shrubbery close to the
way. As soon as Noguera took cognizance of the trouble, he stepped into a garage which was located nearby and
asked Jose Soco, the timekeeper, to telephone the Malabon station of the Manila Electric Company that an electrical
wire was burning at that place. Soco transmitted the message at 2.25 p.m. and received answer from the station to
the effect that they would send an inspector. From the testimony of the two witnesses mentioned we are justified in
the conclusion that information to the effect that the electric wire at the point mentioned had developed trouble was
received by the company's servant at the time stated. At the time that message was sent the wire had not yet parted,
but from the testimony of Demetrio Bingao, one of the witnesses for the defense, it is clear that the end of the wire
was on the ground shortly after 3 p.m.

At 4 p. m. the neighborhood school was dismissed and the children went home. Among these was Alberto del
Rosario, of the age of 9 years, who was a few paces ahead of two other boys, all members of the second grade in the
public school. These other two boys were Jose Salvador, of the age of 8, and Saturnino Endrina, of the age of 10. As
the three neared the place where the wire was down, Saturnino made a motion as if it touch it. His companion, Jose
Salvador, happened to be the son of an electrician and his father had cautioned him never to touch a broken
electrical wire, as it might have a current. Jose therefore stopped Saturnino, telling him that the wire might be
charged. Saturnino yielded to this admonition and desisted from his design, but Alberto del Rosario, who was
somewhat ahead, said, I have for some time been in the habit of touching wires ("Yo desde hace tiempo cojo
alambres"). Jose Salvador rejoined that he should into touch wires as they carry a current, but Alberto, no doubt
feeling that he was challenged in the matter, put out his index finger and touch the wire. He immediately fell face
downwards, exclaiming "Ay! madre". The end of the wire remained in contact with his body which fell near the post.
A crowd soon collected, and some one cut the wire and disengaged the body. Upon being taken to St. Luke's Hospital
the child was pronounced dead.

The wire was an ordinary number 6 triple braid weather proof wire, such as is commonly used by the defendant
company for the purpose of conducting electricity for lighting. The wire was cased in the usual covering, but this had
been burned off for some distance from the point where the wire parted. The engineer of the company says that it
was customary for the company to make a special inspection of these wires at least once in six months, and that all
of the company's inspectors were required in their daily rounds to keep a lookout for trouble of this kind. There is
nothing in the record indicating any particular cause for the parting of the wire.lawphil.net

We are of the opinion that the presumption of negligence on the part of the company from the breakage of this wire
has not been overcome, and the defendant is in our opinion responsible for the accident. Furthermore, when notice
was received at the Malabon station at 2.25 p. m., somebody should have been dispatched to the scene of the
trouble at once, or other measures taken to guard the point of danger; but more than an hour and a half passed
before anyone representing the company appeared on the scene, and in the meantime this child had been claimed
as a victim.

It is doubtful whether contributory negligence can properly be imputed to the deceased, owing to his immature
years and the natural curiosity which a child would feel to do something out of the ordinary, and the mere fact that
the deceased ignored the caution of a companion of the age of 8 years does not, in our opinion, alter the case. But
even supposing that contributory negligence could in some measure be properly imputed to the deceased, — a
proposition upon which the members of the court do not all agree, — yet such negligence would not be wholly fatal
to the right of action in this case, not having been the determining cause of the accident. (Rakes vs. Atlantic, Gulf and
Pacific Co., 7 Phil., 359.)

With respect to the amount of damages recoverable the majority of the members of this court are of the opinion
that the plaintiff is entitled to recover P250 for expenses incurred in connection with the death and burial of the boy.
For the rest, in accordance with the precedents cited in Astudillo vs. Manila Electric Company (55 Phil., 427), the
majority of the court are of the opinion that the plaintiff should recover the sum of P1,000 as general damages for
loss of service.

The judgment appealed from is therefore reversed and the plaintiff will recover of the defendant the sum of P1,250,
with costs of both instances. So ordered.

Separate Opinions (ABAD SANTOS, J., concurring in part and dissenting in part)

I concur in so far as the defendant company is held liable for the death of the plaintiff's son, but I dissent in so far as
the decision allows the plaintiff to recover of the defendant the sum of P1,250 only.

It is well settled in this jurisdiction that an action will lie to recover damages for death caused by the wrongful act.
(Manzanares vs. Moreta, 38 Phil., 821.) The question, however, arises as to the amount of damages recoverable in
this case. In criminal cases, this court has adopted the rule of allowing, as a matter of course, the sum of P1,000 as
indemnity to the heirs of the deceased. Following that rule, the court has allowed the plaintiff in this case to recover
the sum of P1,000 as general damages for loss of service. Whatever may be the reasons for the rule followed in
criminal cases, I am of the opinion that those reasons do not obtain in fixing the amount of the damages recoverable
in the present case. The indemnity allowed in criminal case is merely incidental to the main object sought, which is
the punishment of the guilty party. In a civil action, the principal object is the recovery of damages for wrongful
death; and where, as in this case, the defendant is a corporation, not subject to criminal prosecution for the act
complained of, the question assumes a vastly different aspect. Both in reason and in justice, there should be a
distinction between the civil liability of an ordinary person who, by wrongful act, has caused the death of another;
and the civil liability of a corporation, organized primarily for profit, which has caused the death of a person by failure
to exercise due care in the prosecution of its business. The liability of such a corporation for damages must be
regarded as a part of the risks which it assumes when it undertakes to promote its own business; and just as it is
entitled to earn adequate profits from its business, so it should be made adequately to compensate those who have
suffered damage by its negligence.

Considering the circumstances of this case, I am of the opinion that the plaintiff should recover the sum of P2,250 as
damages.

FEDERICO YLARDE and ADELAIDA DORONIO vs. EDGARDO AQUINO, MAURO SORIANO and COURT OF APPEALS
[G.R. No. L-33722 July 29, 1988]

In this petition for review on certiorari seeking the reversal of the decision of the Court of Appeals in CA-G.R. No.
36390-R entitled "Federico Ylarde, et al. vs. Edgardo Aquino, et al.," a case which originated from the Court of First
Instance of Pangasinan, We are again caned upon determine the responsibility of the principals and teachers towards
their students or pupils.

In 1963, private respondent Mariano Soriano was the principal of the Gabaldon Primary School, a public educational
institution located in Tayug, Pangasinan-Private respondent Edgardo Aquino was a teacher therein. At that time, the
school was fittered with several concrete blocks which were remnants of the old school shop that was destroyed in
World War II. Realizing that the huge stones were serious hazards to the schoolchildren, another teacher by the
name of Sergio Banez started burying them one by one as early as 1962. In fact, he was able to bury ten of these
blocks all by himself.

Deciding to help his colleague, private respondent Edgardo Aquino gathered eighteen of his male pupils, aged ten to
eleven, after class dismissal on October 7, 1963. Being their teacher-in-charge, he ordered them to dig beside a one-
ton concrete block in order to make a hole wherein the stone can be buried. The work was left unfinished. The
following day, also after classes, private respondent Aquino called four of the original eighteen pupils to continue the
digging. These four pupils — Reynaldo Alonso, Francisco Alcantara, Ismael Abaga and Novelito Ylarde, dug until the
excavation was one meter and forty centimeters deep. At this point, private respondent Aquino alone continued
digging while the pupils remained inside the pit throwing out the loose soil that was brought about by the digging.
When the depth was right enough to accommodate the concrete block, private respondent Aquino and his four
pupils got out of the hole. Then, said private respondent left the children to level the loose soil around the open hole
while he went to see Banez who was about thirty meters away. Private respondent wanted to borrow from Banez the
key to the school workroom where he could get some rope. Before leaving. , private respondent Aquino allegedly
told the children "not to touch the stone."

A few minutes after private respondent Aquino left, three of the four kids, Alonso, Alcantara and Ylarde, playfully
jumped into the pit. Then, without any warning at all, the remaining Abaga jumped on top of the concrete block
causing it to slide down towards the opening. Alonso and Alcantara were able to scramble out of the excavation on
time but unfortunately fo Ylarde, the concrete block caught him before he could get out, pinning him to the wall in a
standing position. As a result thereof, Ylarde sustained the following injuries:

1. Contusion with hematoma, left inguinal region and suprapubic region.

2. Contusion with ecchymosis entire scrotal region.

3. Lacerated wound, left lateral aspect of penile skin with phimosis

4. Abrasion, gluteal region, bilateral.

5. Intraperitoneal and extrapertitoneal extravasation of blood and urine about 2 liters.

6. Fracture, simple, symphesis pubis

7. Ruptured (macerated) urinary bladder with body of bladder almost entirely separated from its
neck.

REMARKS:

1. Above were incurred by crushing injury.

2. Prognosis very poor.

(Sgd.) MELQUIADES A. BRAVO

Physician on Duty. 1

Three days later, Novelito Ylarde died.

Ylarde's parents, petitioners in this case, filed a suit for damages against both private respondents Aquino and
Soriano. The lower court dismissed the complaint on the following grounds: (1) that the digging done by the pupils is
in line with their course called Work Education; (2) that Aquino exercised the utmost diligence of a very cautious
person; and (3) that the demise of Ylarde was due to his own reckless imprudence. 2

On appeal, the Court of Appeals affirmed the Decision of the lower court.

Petitioners base their action against private respondent Aquino on Article 2176 of the Civil Code for his alleged
negligence that caused their son's death while the complaint against respondent Soriano as the head of school is
founded on Article 2180 of the same Code.

Article 2176 of the Civil Code provides:

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

On the other hand, the applicable provision of Article 2180 states:

Art. 2180. x x x

xxx xxx xxx

 Lastly, teachers or heads of establishments of arts and trades shall be liable for damages caused by
their pupils and students or apprentices, so long as they remain in their custody. 3

The issue to be resolved is whether or not under the cited provisions, both private respondents can be held liable for
damages.

As regards the principal, We hold that he cannot be made responsible for the death of the child Ylarde, he being the
head of an academic school and not a school of arts and trades. This is in line with Our ruling in Amadora vs. Court of
Appeals, 4 wherein this Court thoroughly discussed the doctrine that under Article 2180 of the Civil Code, it is only
the teacher and not the head of an academic school who should be answerable for torts committed by their
students. This Court went on to say that in a school of arts and trades, it is only the head of the school who can be
held liable. In the same case, We explained:

After an exhaustive examination of the problem, the Court has come to the conclusion that the
provision in question should apply to all schools, academic as well as non-academic. Where the
school is academic rather than technical or vocational in nature, responsibility for the tort committed
by the student will attach to the teacher in charge of such student, following the first part of the
provision. This is the general rule. In the case of establishments of arts and trades, it is the head
thereof, and only he, who shall be held liable as an exception to the general rule. In other words,
teachers in general shall be liable for the acts of their students except where the school is technical
in nature, in which case it is the head thereof who shall be answerable. Following the canon
of reddendo singula sinquilis 'teachers' should apply to the words "pupils and students' and 'heads of
establishments of arts and trades to the word "apprentices."

Hence, applying the said doctrine to this case, We rule that private respondent Soriano, as principal, cannot be held
liable for the reason that the school he heads is an academic school and not a school of arts and trades. Besides, as
clearly admitted by private respondent Aquino, private respondent Soriano did not give any instruction regarding the
digging.

From the foregoing, it can be easily seen that private respondent Aquino can be held liable under Article 2180 of the
Civil Code as the teacher-in-charge of the children for being negligent in his supervision over them and his failure to
take the necessary precautions to prevent any injury on their persons. However, as earlier pointed out, petitioners
base the alleged liability of private respondent Aquino on Article 2176 which is separate and distinct from that
provided for in Article 2180.

With this in mind, the question We need to answer is this: Were there acts and omissions on the part of private
respondent Aquino amounting to fault or negligence which have direct causal relation to the death of his pupil
Ylarde? Our answer is in the affirmative. He is liable for damages.

From a review of the record of this case, it is very clear that private respondent Aquino acted with fault and gross
negligence when he: (1) failed to avail himself of services of adult manual laborers and instead utilized his pupils aged
ten to eleven to make an excavation near the one-ton concrete stone which he knew to be a very hazardous task; (2)
required the children to remain inside the pit even after they had finished digging, knowing that the huge block was
lying nearby and could be easily pushed or kicked aside by any pupil who by chance may go to the perilous area; (3)
ordered them to level the soil around the excavation when it was so apparent that the huge stone was at the brink of
falling; (4) went to a place where he would not be able to check on the children's safety; and (5) left the children
close to the excavation, an obviously attractive nuisance.

The negligent act of private respondent Aquino in leaving his pupils in such a dangerous site has a direct causal
connection to the death of the child Ylarde. Left by themselves, it was but natural for the children to play around.
Tired from the strenuous digging, they just had to amuse themselves with whatever they found. Driven by their
playful and adventurous instincts and not knowing the risk they were facing three of them jumped into the hole
while the other one jumped on the stone. Since the stone was so heavy and the soil was loose from the digging, it
was also a natural consequence that the stone would fall into the hole beside it, causing injury on the unfortunate
child caught by its heavy weight. Everything that occurred was the natural and probable effect of the negligent acts
of private respondent Aquino. Needless to say, the child Ylarde would not have died were it not for the unsafe
situation created by private respondent Aquino which exposed the lives of all the pupils concerned to real danger.

We cannot agree with the finding of the lower court that the injuries which resulted in the death of the child Ylarde
were caused by his own reckless imprudence, It should be remembered that he was only ten years old at the time of
the incident, As such, he is expected to be playful and daring. His actuations were natural to a boy his age. Going
back to the facts, it was not only him but the three of them who jumped into the hole while the remaining boy
jumped on the block. From this, it is clear that he only did what any other ten-year old child would do in the same
situation.

In ruling that the child Ylarde was imprudent, it is evident that the lower court did not consider his age and maturity.
This should not be the case. The degree of care required to be exercised must vary with the capacity of the person
endangered to care for himself. A minor should not be held to the same degree of care as an adult, but his conduct
should be judged according to the average conduct of persons of his age and experience. 5 The standard of conduct
to which a child must conform for his own protection is that degree of care ordinarily exercised by children of the
same age, capacity, discretion, knowledge and experience under the same or similar circumstances. 6 Bearing this in
mind, We cannot charge the child Ylarde with reckless imprudence.

The court is not persuaded that the digging done by the pupils can pass as part of their Work Education. A single
glance at the picture showing the excavation and the huge concrete block 7 would reveal a dangerous site requiring
the attendance of strong, mature laborers and not ten-year old grade-four pupils. We cannot comprehend why the
lower court saw it otherwise when private respondent Aquino himself admitted that there were no instructions from
the principal requiring what the pupils were told to do. Nor was there any showing that it was included in the lesson
plan for their Work Education. Even the Court of Appeals made mention of the fact that respondent Aquino decided
all by himself to help his co-teacher Banez bury the concrete remnants of the old school shop. 8 Furthermore, the
excavation should not be placed in the category of school gardening, planting trees, and the like as these
undertakings do not expose the children to any risk that could result in death or physical injuries.

The contention that private respondent Aquino exercised the utmost diligence of a very cautious person is certainly
without cogent basis. A reasonably prudent person would have foreseen that bringing children to an excavation site,
and more so, leaving them there all by themselves, may result in an accident. An ordinarily careful human being
would not assume that a simple warning "not to touch the stone" is sufficient to cast away all the serious danger that
a huge concrete block adjacent to an excavation would present to the children. Moreover, a teacher who stands
in loco parentis to his pupils would have made sure that the children are protected from all harm in his company.

We close by categorically stating that a truly careful and cautious person would have acted in all contrast to the way
private respondent Aquino did. Were it not for his gross negligence, the unfortunate incident would not have
occurred and the child Ylarde would probably be alive today, a grown- man of thirty-five. Due to his failure to take the
necessary precautions to avoid the hazard, Ylarde's parents suffered great anguish all these years.

WHEREFORE, in view of the foregoing, the petition is hereby GRANTED and the questioned judgment of the
respondent court is REVERSED and SET ASIDE and another judgment is hereby rendered ordering private respondent
Edagardo Aquino to pay petitioners the following:

(1) Indemnity for the death of Child Ylarde P30,000.00

(2) Exemplary damages 10,000.00

(3) Moral damages 20,000.00

SO ORDERED.

CULION ICE, FISH AND ELECTRIC CO., INC. vs. PHILIPPINE MOTORS CORPORATION
[G.R. No. L-32611 November 3, 1930]
This action was instituted in the Court of First Instance of Manila by the Culion Ice, Fish & Electric Co., Inc., for the
purpose of recovering from the Philippine Motors Corporation the sum of P11,350, with interest and costs. Upon
hearing the cause the trial court gave judgment in favor of the plaintiff to recover of the defendant the sum of
P9,850, with interest at 6 per centum per annum from March 24,1927, the date of the filing of the complaint, until
satisfaction of the judgment, with costs. From this judgment the defendant appealed.

The plaintiff and defendant are domestic corporations; and at the time of the incident with which we are here
concerned, H.D. Cranston was the representative of the plaintiff in the City of Manila. At the same time the plaintiff
was the registered owner of the motor schooner Gwendoline, which was used in the fishing trade in the Philippine
Islands. In January, 1925, Cranston decided, if practicable, to have the engine on the Gwendoline changed from a
gasoline consumer to a crude oil burner, expecting thereby to effect economy in the cost of running the boat. He
therefore made known his desire to McLeod & Co., a firm dealing in tractors, and was told by Mc Kellar, of said
company, that he might make inquiries of the Philippine Motors Corporations, which had its office on Ongpin Street,
in the City of Manila. Cranston accordingly repaired to the office of the Philippine Motors Corporation and had a
conference with C.E. Quest, its manager, who agreed to do the job, with the understanding that payment should be
made upon completion of the work.

The Philippine Motors Corporation was at this time engaged in business as an automobile agency, but, under its
charter, it had authority to deal in all sorts of machinery engines and motors, as well as to build, operate, buy and sell
the same and the equipment therof. Quest, as general manager, had full charge of the corporations in all its
branches.

As a result of the aforesaid interview, Quest, in company with Cranston, visited the Gwendoline while it lay at anchor
in the Pasig River, and the work of effecting the change in the engine was begun and conducted under the
supervision of Quest, chiefly by a mechanic whom Quest took with him to the boat. In this work Quest had the
assistance of the members of the crew of the Gwendoline, who had been directed by Cranston to place themselves
under Quest's directions.

Upon preliminary inspection of the engine, Quest came to the conclusion that the principal thing necessary to
accomplish the end in view was to install a new carburetor, and a Zenith carburetor was chosen as the one most
adapted to the purpose. After this appliance had been installed, the engine was tried with gasoline as a fuel, supplied
from the tank already in use. The result of this experiment was satisfactory. The next problem was to introduce into
the carburetor the baser fuel, consisting of a low grade of oil mixed with distillate. For this purpose a temporary tank
to contain the mixture was placed on deck above and at a short distance from the compartment covering the engine.
This tank was connected with the carburetor by a piece of tubing, which was apparently not well fitted at the point
where it was connected with the tank. Owing to this fact the fuel mixture leaked from the tank and dripped sown
into the engine compartment. The new fuel line and that already in use between the gasoline tank and carburetor
were so fixed that it was possible to change from the gasoline fuel to the mixed fuel. The purpose of this
arrangement was to enable the operator to start the engine on gasoline and then, after the engine had been
operating for a few moments, to switch to the new fuel supply. lawphil.net

In the course of the preliminary work upon the carburetor and its connections, it was observed that the carburetor
was flooding, and that the gasoline, or other fuel, was trickling freely from the lower part to the carburetor to the
floor. This fact was called to Quest's attention, but he appeared to think lightly of the matter and said that, when the
engine had gotten to running well, the flooding would disappear.

After preliminary experiments and adjustments had been made the boat was taken out into the bay for a trial run at
about 5 p.m. or a little later, on the evening of January 30,1925. The first part of the course was covered without any
untoward development, other than he fact that the engine stopped a few times, owing no doubt to the use of an
improper mixture of fuel. In the course of the trial Quest remained outside of the engine compartment and occupied
himself with making distillate, with a view to ascertaining what proportion of the two elements would give best
results in the engine.

As the boat was coming in from this run, at about 7:30 p.m. and when passing near Cavite, the engine stopped, and
connection again had to be made with the gasoline line to get a new start. After this had been done the mechanic, or
engineer, switched to the tube connecting with the new mixture. A moment later a back fire occurred in the cylinder
chamber. This caused a flame to shoot back into the carburetor, and instantly the carburetor and adjacent parts were
covered with a mass of flames, which the members of the crew were unable to subdue. They were therefore
compelled, as the fire spread, to take to a boat, and their escape was safely effected, but the Gwendoline was
reduced to a mere hulk. The salvage from, the wreck, when sold, brought only the sum of P150. The value of the
boat, before the accident occured, as the court found, was P10,000.

A study of the testimony lead us to the conclusion that the loss of this boat was chargeable to the negligence and
lack of skill of Quest. The temporary tank in which the mixture was prepared was apparently at too great an elevation
from the carburetor, with the result that when the fuel line was opened, the hydrostatic pressure in the carburetor
was greater than the delicate parts of the carburetor could sustain. This was no doubt the cause of the flooding of
the carburetor; and the result was that; when the back fire occurred, the external parts of the carburetor, already
saturated with gasoline, burst into flames, whence the fire was quickly communicated to the highly inflammable
material near-by. Ordinarily a back fire from an engine would not be followed by any disaster, but in this case the leak
along the pipe line and the flooding of the carburetor had created a dangerous situation, which a prudent mechanic,
versed in repairs of this nature, would have taken precautions to avoid. The back fire may have been due either to
the fact that the spark was too advanced or the fuel improperly mixed.

In this connection it must be remembered that when a person holds himself out as being competent to do things
requiring professional skill, he will be held liable for negligence if he fails to exhibit the care and skill of one ordinarily
skilled in the particular work which he attempts to do. The proof shows that Quest had had ample experience in
fixing the engines of automobiles and tractors, but it does not appear that he was experienced in the doing of similar
work on boats. For this reason, possibly the dripping of the mixture form the tank on deck and the flooding of the
carburetor did not convey to his mind an adequate impression of the danger of fire. But a person skilled in that
particular sort of work would, we think have been sufficiently warned from those circumstances to cause him to take
greater and adequate precautions against the danger. In other words Quest did not use the skill that would have
been exhibited by one ordinarily expert in repairing gasoline engines on boats. There was here, in our opinion, on the
part of Quest, a blameworthy antecedent inadvertence to possible harm, and this constitutes negligence. The
burning of the Gwendoline may be said to have resulted from accident, but this accident was in no sense an
unavoidable accident. It would not have occured but for Quest's carelessness or lack of skill. The test of liability is not
whether the injury was accidental in a sense, but whether Quest was free from blame.

We therefore see no escape from the conclusion that this accident is chargeable to lack of skill or negligence in
effecting the changes which Quest undertook to accomplish; and even supposing that our theory as to the exact
manner in which the accident occurred might appear to be in some respects incorrect, yet the origin of the fire in not
so inscrutable as to enable us to say that it was casus fortuitus.

The trial judge seems to have proceeded on the idea that, inasmuch as Quest had control of the Gwendoline during
the experimental run, the defendant corporation was in the position of a bailee and that, as a consequence, the
burden of proof was on the defendant to exculpate itself from responsibility by proving that the accident was not due
to the fault of Quest. We are unable to accede to this point of view. Certainly, Quest was not in charge of the
navigation of the boat on this trial run. His employment contemplated the installation of new parts in the engine
only, and it seems rather strained to hold that the defendant corporation had thereby become bailee of the boat. As
a rule workmen who make repairs on a ship in its owner's yard, or a mechanic who repairs a coach without taking it
to his shop, are not bailees, and their rights and liabilities are determined by the general rules of law, under their
contract. The true bailee acquires possession and what is usually spoken of as special property in the chattel bailed.
As a consequence of such possession and special property, the bailee is given a lien for his compensation. These
ideas seem to be incompatible with the situation now under consideration. But though defendant cannot be held
liable in the supposition that the burden of proof had not been sustained by it in disproving the negligence of its
manager, we are nevertheless of the opinion that the proof shows by a clear preponderance that the accident to
the Gwendolineand the damages resulting therefrom are chargeable to the negligence or lack of skill of Quest.

This action was instituted about two years after the accident in question had occured, and after Quest had ceased to
be manager of the defendant corporation and had gone back to the United States. Upon these facts, the defendant
bases the contention that the action should be considered stale. It is sufficient reply to say that the action was
brought within the period limited by the statute of limitations and the situation is not one where the defense of
laches can be properly invoked.

It results that the judgment appealed from, awarding damages to the plaintiff in the amount of P9,850, with interest,
must be affirmed; and it is so ordered, with costs against the appellant.
UNITED STATES vs. SANTIAGO PINEDA [G.R. No. L-12858. January 22, 1918]

This appeal requires a construction and an application, for the first time, of the penal provisions of the Pharmacy
Law.

Santiago Pineda, the defendant, is a registered pharmacist of long standing and the owner of a drug store located at
Nos. 442, 444, Calle Santo Cristo, city of Manila. One Feliciano Santos, having some sick horses, presented a copy of a
prescription obtained from Dr. Richardson, and which on other occasions Santos had given to his horses with good
results, at Pineda's drug store for filling. The prescription read — "clorato de potasa — 120 gramos — en seis
papelitos de 20 gramos, para caballo." Under the supervision of Pineda, the prescription was prepared and returned
to Santos in the form of six papers marked, "Botica Pineda — Clorato potasa — 120.00 — en seis papeles — para
caballo — Sto. Cristo 442, 444, Binondo, Manila." Santos, under the belief that he had purchased the potassium
chlorate which he had asked for, put two of the packages in water the doses to two of his sick horses. Another
package was mixed with water for another horse, but was not used. The two horses, to which had been given the
preparation, died shortly afterwards. Santos, thereupon, took the three remaining packages to the Bureau of Science
for examination. Drs. Peña and Darjuan, of the Bureau of Science, on analysis found that the packages contained not
potassium chlorate but barium chlorate. At the instance of Santos, the two chemists also went to the drug store of
the defendant and bought potassium chlorate, which when analyzed was found to be barium chlorate. (Barium
chlorate, it should be noted, is a poison; potassium chlorate is not.) Dr. Buencamino, a veterinarian, performed an
autopsy on the horses, and found that death was the result of poisoning.

Four assignments of error are made. The first is that the lower court erred in admitting the testimony of the chemist
Pena and Darjuan as to their purchase of potassium chlorate at the drug store of the accused, which substance
proved on analysis to be barium chlorate. What the appellant is here relying on is the maxim res inter alios acta. As a
general rule, the evidence of other offenses committed by a defendant is inadmissible. But appellant has confused
this maxim and this rule with certain exceptions thereto. The effort is not to convict the accused of a second offense.
Nor is there an attempt to draw the mind away from the point at issue and thus to prejudice defendant's case. The
purpose is to ascertain defendant's knowledge and intent, and to fix his negligence. If the defendant has on more
than one occasion performed similar acts, accident in good faith is possibly excluded, negligence is intensified, and
fraudulent intent may even be established. It has been said that there is no better evidence of negligence than the
frequency of accidents. (See 10 R. C. L., pp. 938, 940.) The United States Supreme Court has held that:

On the trial of a criminal case the question relates to the tendency of certain testimony to throw light upon a
particular fact, or to explain the conduct of a particular person, there is a certain discretion on the part of the
trial judge which a court of errors will not interfere with, unless it manifestly appear that the testimony has
no legitimate bearing upon the question at issue, and is calculated to prejudice the accused.

Whenever the necessity arises for a resort to circumstantial evidence, either from the nature of the inquiry
or the failure of direct proof, objections to the testimony on the ground of irrelevancy are not favored.

Evidence is admissible in a criminal action which tends to show motive, although it tends to prove the
commission of another offense by the defendant. (Moore vs. U. S. [1893], 150 U. S., 57.)

The second assignment of error is that the lower court erred in finding that the substance sold by the accused to
Feliciano Santos on the 22d of June, 1916, was barium chlorate and not potassium chlorate. The proof demonstrates
the contrary.

The third and fourth assignments of error that the lower court erred in finding that the accused has been proved
guilty beyond a reasonable doubt of an infraction of Act No. 597, section 17, as amended. The third assignment
contains the points we should consider, including, we may remark, a somewhat difficult question concerning which
the briefs have given little assistance.

The Pharmacy Law was first enacted as Act No. 597, was later amended by Act Nos. 1921, 2236, and 2382, and is
now found as Chapter 30 of the Administrative Code. The law provides for a board of pharmaceutical examiners, and
the examination and registration of pharmacists, and finally contains sundry provisions relative to the practice of
pharmacy. High qualification for applicants for the pharmaceutical; examination are established. The program of
subjects for the examination is wide. Responsibility for the quality of drugs is fixed by section 17 of the Pharmacy
Law, as amended (now Administrative Code [1917], section 751), in the following term:
 Every pharmacist shall be responsible for the quality of all drugs, chemicals, medicines, and poisons he may
sell or keep for sale; and it shall be unlawful for any person whomsoever to manufacture, prepare, sell, or
administer any prescription, drug, chemical, medicine, or poison under any fraudulent name, direction, or
pretense, or to adulterate any drug, chemical, medicine, or poison so used, sold or offered for sale. Any drug,
chemical, medicine, or poison shall be held to be adulterated or deteriorated within the meaning of this
section if it differs from the standard of quality or purity given in the United States Pharmacopoeia.

The same section of the Pharmacy Law also contains the following penal provision: "Any person violating the
provisions of this Act shall, upon conviction, be punished by a fine of not more than five hundred dollar." The
Administrative Code, section 2676, changes the penalty somewhat by providing that:

Any person engaging in the practice of pharmacy in the Philippine Islands contrary to any provision of the
Pharmacy Law or violating any provisions of said law for which no specific penalty s provided shall, for each
offense, be punished by a fine not to exceed two hundred pesos, or by imprisonment for not more than
ninety days, or both, in the discretion of the court.

These are the provisions of law, pursuant to which prosecution has been initiated and which it is now incumbent
upon us to construe.

Turning to the law, certain points therein as bearing on our present facts must be admitted. Thus, defendant is a
pharmacist. As a pharmacist, he is made responsible for the quality of all drugs and poisons which he sells. And
finally it is provided that it shall be unlawful for him to sell any drug or poison under any "fraudulent name." It is the
one word "fraudulent" which has given the court trouble. What did the Legislature intend to convey by this restrictive
adjective?

Were we to adhere to the technical definition of fraud, which the appellant vigorously insists upon, it would be
difficult, if not impossible, to convict any druggist of a violation of the law. The prosecution would have to prove to a
reasonable degree of certainty that the druggist made a material representation; that it was false; that when he
made it he knew that it was false or made it recklessly without any knowledge of its truth and as positive assertion;
that he made it with the intention that it should be acted upon by the purchaser; that the purchaser acted in reliance
upon it, and that the purchased thereby suffered injury. Such a construction with a literal following of well-known
principles on the subject of fraud would strip the law of at least much of its force. It would leave the innocent
purchaser of drugs, who must blindly trust in the good faith and vigilance of the pharmacist, at the mercy of any
unscrupulous vendor. We should not, therefore, without good reason so devitalize the law.

The profession of pharmacy, it has been said again and again, is one demanding care and skill. The responsibility of
the druggist to use care has been variously qualified as "ordinary care," "care of a special high degree," "the highest
degree of care known to practical men." Even under the first conservative expression, "ordinary care" with reference
to the business of a druggist, the Supreme Court of Connecticut has said must be held to signify "the highest
practicable degree of prudence, thoughtfulness, and vigilance, and most exact and reliable safeguards consistent
with the reasonable conduct of the business, in order that human life may not be constantly be exposed to the
danger flowing from the substitution of deadly poisons for harmless medicine." (Tombari vs. Connors [1912], 85
Conn., 235. See also Willson vs. Faxon, Williams and Faxon [1913], 208 N. Y., 108; Knoefel vs. Atkins [1907], 81 N. E.,
600.) The "skill" required of a druggist is denominated as "high" or "ample." (Peters vs. Jackson [1902], 50 W. Va.,
644; 57 L. R. A., 428.) In other words, the care required must be commensurate with the danger involved, and the
skill employed must correspond with the superior knowledge of the business which the law demands.

Under one conception, and it should not be forgotten that the case we consider are civil in nature, the question of
negligence or ignorance is irrelevant. The druggist is responsible as an absolute guarantor of what he sells. In a
decision which stands alone, the Supreme Court of Kentucky said:

As applicable to the owners of drug stores, or persons engaged in vending drugs and medicines by retail, the
legal maxim should be reversed. Instead of caveat emptor, it should be caveat venditor. That is to say, let him
be certain that he does not sell to a purchaser or send to a patient one drug for another, as arsenic for
calomel, cantharides for or mixed with snakeroot and Peruvian bark, or even one innocent drug, calculated
to produce a certain effect, in place of another sent for and designed to produce a different effect. If he does
these things, he cannot escape civil responsibility, upon the alleged pretext that it was an accidental or an
innocent mistake; that he had been very careful and particular, and had used extraordinary care and
 diligence in preparing or compounding the medicines as required, etc. Such excuses will not avail him. (Fleet
vs. Hollenkemp [1852], 56 Am. Dec., 563.)

Under the other conception, in which the proof of negligence is considered as material, where a customer calls upon
a druggist for a harmless remedy, delivery of a poisonous drug by mistake by the druggist is prima facie negligence,
placing the burden on him to show that the mistake was under the circumstances consistent with the exercise of due
care. (See Knoefel vs. Atkins, supra,) The druggist cannot, for example in filling a prescription calling for potassium
chlorate give instead to the customer barium chlorate, a poison, place this poison in a package labeled "potassium
chlorate," and expect to escape responsibility on plea of mistake. His mistake, under the most favorable aspect for
himself, was negligence. So in a case where a druggist filled an order for calomel tablets with morphine and placed
the morphine in a box labeled calomel, it was said:

It is not suggested, nor can we apprehend that it is in any wise probable, that the act of furnishing the wrong
drug in this case was willful. If it was furnished by the clerk, it was undoubtedly a mistake and unintentional.
However, it was a mistake of the gravest kind, and of the most disastrous effect. We cannot say that one
holding himself out as competent to handle such drugs, and who does so, having rightful access to them, and
relied upon by those dealing with him to exercise that high degree of caution and care called for by the
peculiarly dangerous nature of this business, can be heard to say that his mistakes by which he furnishes a
customer the most deadly of drugs for those comparatively harmless is not, in and of itself, gross negligence,
and that of an aggravated form. (Smith's Admrx. vs. Middleton [1902], 56 L. R. A., 484.)

The rule of caveat emptor cannot apply to the purchase and sale of drugs. The vendor and the vendee do not stand
at arms length as in ordinary transactions. An imperative duty is on the druggist to take precautions to prevent death
or serious injury to anyone who relies on his absolute honesty and peculiar leaning. The nature of drugs is such that
examination would not avail the purchaser anything. It would be idle mockery for the customer to make an
examination of a compound of which he can know nothing. Consequently, it must be that the druggist warrants that
he will deliver the drug called for.

In civil cases, the druggist is made liable for any injury approximately resulting from his negligence. If B negligently
sells poison under the guise of a beneficial drug to A, he is liable for the injury done to A. In a case, which has
repeatedly been termed the leading case on the subject and which has been followed by the United States Supreme
Court, it was said, "Pharmacists or apothecaries who compound or sell medicines, if they carelessly label a poison as
a harmless medicine, and sent it so labeled into the market, are liable to all persons who, without fault on their part,
are injured by using it as such medicine, in consequence of the false label; the rule being that the liability in such a
case arises not out of any contract or direct privity between the wrong-doer and the person injured, but out of the
duty which the law imposes on him to avoid acts in their nature dangerous to the lives of others." (Nat. Savings Bank
vs. Ward [1879], 100 U. S., 195, following Thomas vs. Winchester [1852], 2 Seld. [N. Y.], 387.) In reality, for the
druggist, mistake is negligence and care is no defense. Throughout the criminal law, run the same rigorous rules. For
example, apothecaries or apothecary clerks, who are guilty of negligence in the sale of medicine when death ensues
in consequence, have been held guilty of manslaughter. (See Tessymond's Case [1828], 1 Lewin, C. C., 169.)

Bearing these general principles in mind, and remembering particularly the care and skill which are expected of
druggist, that in some jurisdictions they are liable even for their mistake and in others have the burden placed upon
them to establish that they were not negligent, it cannot be that the Philippine Legislature intended to use the word
"fraudulent" in all its strictness. A plea of accident and mistake cannot excuse for they cannot take place unless there
be wanton and criminal carelessness and neglect. How the misfortune occurs is unimportant, if under all the
circumstances the fact of occurrence is attributed to the druggist as a legal fault. Rather considering the responsibility
for the quality of drugs which the law imposes on druggists and the position of the word "fraudulent" in juxtaposition
to "name," what is made unlawful is the giving of a false name to the drug asked for. This view is borne out by
Spanish translation, which we are permitted to consult to explain the English text. In the Spanish "supuesto" is used,
and this word is certainly not synonymous with "fraudulent." The usual badges of fraud, falsify, deception, and injury
must be present-but not scienter.

In view of the tremendous an imminent danger to the public from the careless sale of poisons and medicines, we do
not deem it too rigid a rule to hold that the law penalizes any druggist who shall sell one drug for another whether it
be through negligence or mistake.
The judgment of the lower court, sentencing the defendant to pay a fine of P100, with subsidiary imprisonment in
case of insolvency, and to pay the costs, is affirmed with the cost of this instance against the appellant, without
prejudice to any civil action which may be instituted. So ordered.

[J. Malcom]

BANK OF THE PHILIPPINE ISLANDS vs. COURT OF APPEALS and BENJAMIN NAPIZA
[G.R. No. 112392 February 29, 2000]

This is a petition for review on certiorari of the Decision1 of the Court of Appeals in CA-G.R. CV No. 37392 affirming in
toto that of the Regional Trial Court of Makati, Branch 139, 2 which dismissed the complaint filed by petitioner Bank of
the Philippine Islands against private respondent Benjamin C. Napiza for sum of money.

On September 3, 1987, private respondent deposited in Foreign Currency Deposit Unit (FCDU) Savings Account No.
028-1873 which he maintained in petitioner bank's Buendia Avenue Extension Branch, Continental Bank Manager's
Check No. 000147574 dated August 17, 1984, payable to "cash" in the amount of Two Thousand Five Hundred Dollars
($2,500.00) and duly endorsed by private respondent on its dorsal side. 5 It appears that the check belonged to a
certain Henry who went to the office of private respondent and requested him to deposit the check in his dollar
account by way of accommodation and for the purpose of clearing the same. Private respondent acceded, and
agreed to deliver to Chan a signed blank withdrawal slip, with the understanding that as soon as the check is cleared,
both of them would go to the bank to withdraw the amount of the check upon private respondent's presentation to
the bank of his passbook.

Using the blank withdrawal slip given by private respondent to Chan, on October 23, 1984, one Ruben Gayon, Jr. was
able to withdraw the amount of $2,541.67 from FCDU Savings Account No. 028-187. Notably, the withdrawal slip
shows that the amount was payable to Ramon A. de Guzman and Agnes C. de Guzman and was duly initialed by the
branch assistant manager, Teresita Lindo.6

On November 20, 1984, petitioner received communication from the Wells Fargo Bank International of New York that
the said check deposited by private respondent was a counterfeit check 7 because it was "not of the type or style of
checks issued by Continental Bank International." 8 Consequently, Mr. Ariel Reyes, the manager of petitioner's
Buendia Avenue Extension Branch, instructed one of its employees, Benjamin D. Napiza IV, who is private
respondent's son, to inform his father that the check bounced. 9 Reyes himself sent a telegram to private respondent
regarding the dishonor of the check. In turn, private respondent's son wrote to Reyes stating that the check been
assigned "for encashment" to Ramon A. de Guzman and/or Agnes C. de Guzman after it shall have been cleared upon
instruction of Chan. He also said that upon learning of the dishonor of the check, his father immediately tried to
contact Chan but the latter was out of town. 10

Private respondent's son undertook to return the amount of $2,500.00 to petitioner bank. On December 18, 1984,
Reyes reminded private respondent of his son's promise and warned that should he fail to return that amount within
seven (7) days, the matter would be referred to the bank's lawyers for appropriate action to protect the bank's
interest.11 This was followed by a letter of the bank's lawyer dated April 8, 1985 demanding the return of the
$2,500.00.12

In reply, private respondent wrote petitioner's counsel on April 20, 1985 13 stating that he deposited the check "for
clearing purposes" only to accommodate Chan. He added:

Further, please take notice that said check was deposited on September 3, 1984 and withdrawn on October
23, 1984, or a total period of fifty (50) days had elapsed at the time of withdrawal. Also, it may not be amiss
to mention here that I merely signed an authority to withdraw said deposit subject to its clearing, the reason
why the transaction is not reflected in the passbook of the account. Besides, I did not receive its proceeds as
may be gleaned from the withdrawal slip under the captioned signature of recipient.1âwphi1.nêt
 If at all, my obligation on the transaction is moral in nature, which (sic) I have been and is (sic) still exerting
utmost and maximum efforts to collect from Mr. Henry Chan who is directly liable under the circumstances.

xxx xxx xxx

On August 12, 1986, petitioner filed a complaint against private respondent, praying for the return of the amount of
$2,500.00 or the prevailing peso equivalent plus legal interest from date of demand to date of full payment, a sum
equivalent to 20% of the total amount due as attorney's fees, and litigation and/or costs of suit.

Private respondent filed his answer, admitting that he indeed signed a "blank" withdrawal slip with the
understanding that the amount deposited would be withdrawn only after the check in question has been cleared. He
likewise alleged that he instructed the party to whom he issued the signed blank withdrawal slip to return it to him
after the bank draft's clearance so that he could lend that party his passbook for the purpose of withdrawing the
amount of $2,500.00. However, without his knowledge, said party was able to withdraw the amount of $2,541.67
from his dollar savings account through collusion with one of petitioner's employees. Private respondent added that
he had "given the Plaintiff fifty one (51) days with which to clear the bank draft in question." Petitioner should have
disallowed the withdrawal because his passbook was not presented. He claimed that petitioner had no one to blame
except itself "for being grossly negligent;" in fact, it had allegedly admitted having paid the amount in the check "by
mistake" . . . "if not altogether due to collusion and/or bad faith on the part of (its) employees." Charging petitioner
with "apparent ignorance of routine bank procedures," by way of counterclaim, private respondent prayed for moral
damages of P100,000.00, exemplary damages of P50,000.00 and attorney's fees of 30% of whatever amount that
would be awarded to him plus an honorarium of P500.00 per appearance in court.

Private respondent also filed a motion for admission of a third party complaint against Chan. He alleged that "thru
strategem and/or manipulation," Chan was able to withdraw the amount of $2,500.00 even without private
respondent's passbook. Thus, private respondent prayed that third party defendant Chan be made to refund to him
the amount withdrawn and to pay attorney's fees of P5,000.00 plus P300.00 honorarium per appearance.

Petitioner filed a comment on the motion for leave of court to admit the third party complaint, whenever it asserted
that per paragraph 2 of the Rules and Regulations governing BPI savings accounts, private respondent alone was
liable "for the value of the credit given on account of the draft or check deposited." It contended that private
respondent was estopped from disclaiming liability because he himself authorized the withdrawal of the amount by
signing the withdrawal slip. Petitioner prayed for the denial of the said motion so as not to unduly delay the
disposition of the main case asserting that private respondent's claim could be ventilated in another case.

Private respondent replied that for the parties to obtain complete relief and to avoid multiplicity of suits, the motion
to admit third party complaint should be granted. Meanwhile, the trial court issued orders on August 25, 1987 and
October 28, 1987 directing private respondent to actively participate in locating Chan. After private respondent failed
to comply, the trial court, on May 18, 1988, dismissed the third party complaint without prejudice.

On November 4, 1991, a decision was rendered dismissing the complaint. The lower court held that petitioner could
not hold private respondent liable based on the check's face value alone. To so hold him liable "would
render inutilethe requirement of "clearance" from the drawee bank before the value of a particular foreign check or
draft can be credited to the account of a depositor making such deposit." The lower court further held that "it was
incumbent upon the petitioner to credit the value of the check in question to the account of the private
respondent only upon receipt of the notice of final payment and should not have authorized the withdrawal from the
latter's account of the value or proceeds of the check." Having admitted that it committed a "mistake" in not waiting
for the clearance of the check before authorizing the withdrawal of its value or proceeds, petitioner should suffer the
resultant loss.

On appeal, the Court of Appeals affirmed the lower court's decision. The appellate court held that petitioner
committed "clears gross negligence" in allowing Ruben Gayon, Jr. to withdraw the money without presenting private
respondent's passbook and, before the check was cleared and in crediting the amount indicated therein in private
respondent's account. It stressed that the mere deposit of a check in private respondent's account did not mean that
the check was already private respondent's property. The check still had to be cleared and its proceeds can only be
withdrawn upon presentation of a passbook in accordance with the bank's rules and regulations. Furthermore,
petitioner's contention that private respondent warranted the check's genuineness by endorsing it is untenable for it
would render useless the clearance requirement. Likewise, the requirement of presentation of a passbook to
ascertain the propriety of the accounting reflected would be a meaningless exercise. After all, these requirements are
designed to protect the bank from deception or fraud.

The Court of Appeals cited the case of Roman Catholic Bishop of Malolos, Inc. v. IAC,14 where this Court stated that a
personal check is not legal tender or money, and held that the check deposited in this case must be cleared before its
value could be properly transferred to private respondent's account.

Without filing a motion for the reconsideration of the Court of Appeals' Decision, petitioner filed this petition for
review on certiorari, raising the following issues:

1. WHETHER OR NOT RESPONDENT NAPIZA IS LIABLE UNDER HIS WARRANTIES AS A GENERAL INDORSER.

2. WHETHER OR NOT A CONTRACT OF AGENCY WAS CREATED BETWEEN RESPONDENT NAPIZA AND RUBEN
GAYON.

3. WHETHER OR NOT PETITIONER WAS GROSSLY NEGLIGENT IN ALLOWING THE WITHDRAWAL.

Petitioner claims that private respondent, having affixed his signature at the dorsal side of the check, should be liable
for the amount stated therein in accordance with the following provision of the Negotiable Instruments Law (Act No.
2031):

Sec. 66. Liability of general indorser. — Every indorser who indorses without qualification, warrants to all
subsequent holders in due course —

(a) The matters and things mentioned in subdivisions (a), (b), and (c) of the next preceding section; and

(b) That the instrument is at the time of his indorsement, valid and subsisting.

And, in addition, he engages that on due presentment, it shall be accepted or paid, or both, as the case may
be, according to its tenor, and that if it be dishonored, and the necessary proceedings on dishonor be duly
taken, he will pay the amount thereof to the holder, or to any subsequent indorser who may be compelled to
pay it.

Sec. 65, on the other hand, provides for the following warranties of a person negotiating an instrument by delivery or
by qualified indorsement: (a) that the instrument is genuine and in all respects what it purports to be; (b) that he has
a good title to it, and (c) that all prior parties had capacity to contract. 15 In People v. Maniego,16 this Court described
the liabilities of an indorser as follows:

Appellant's contention that as mere indorser, she may not be liable on account of the dishonor of the checks
indorsed by her, is likewise untenable. Under the law, the holder or last indorsee of a negotiable instrument
has the right "to enforce payment of the instrument for the full amount thereof against all parties liable
thereon. Among the "parties liable thereon." Is an indorser of the instrument, i.e., "a person placing his
signature upon an instrument otherwise than as a maker, drawer or acceptor * * unless he clearly indicated
by appropriate words his intention to be bound in some other capacity." Such an indorser "who indorses
without qualification," inter alia "engages that on due presentment, * * (the instrument) shall be accepted or
paid, or both, as the case may be, according to its tenor, and that if it be dishonored, and the necessary
proceedings on dishonor be duly taken, he will pay the amount thereof to the holder, or any subsequent
indorser who may be compelled to pay it." Maniego may also be deemed an "accommodation party" in the
light of the facts, i.e., a person "who has signed the instrument as maker, drawer, acceptor, or indorser,
without receiving value thereof, and for the purpose of lending his name to some other person." As such, she
is under the law "liable on the instrument to a holder for value, notwithstanding such holder at the time of
taking the instrument knew * * (her) to be only an accommodation party," although she has the right, after
paying the holder, to obtain reimbursement from the party accommodated, "since the relation between
them is in effect that of principal and surety, the accommodation party being the surety.

It is thus clear that ordinarily private respondent may be held liable as an indorser of the check or even as an
accommodation party.17 However, to hold private respondent liable for the amount of the check he deposited by the
strict application of the law and without considering the attending circumstances in the case would result in an
injustice and in the erosion of the public trust in the banking system. The interest of justice thus demands looking
into the events that led to the encashment of the check.
Petitioner asserts that by signing the withdrawal slip, private respondent "presented the opportunity for the
withdrawal of the amount in question." Petitioner relied "on the genuine signature on the withdrawal slip, the
personality of private respondent's son and the lapse of more than fifty (50) days from date of deposit of the
Continental Bank draft, without the same being returned yet." 18 We hold, however, that the propriety of the
withdrawal should be gauged by compliance with the rules thereon that both petitioner bank and its depositors are
duty-bound to observe.

In the passbook that petitioner issued to private respondent, the following rules on withdrawal of deposits appear:

4. Withdrawals must be made by the depositor personally but in some exceptional circumstances, the Bank
may allow withdrawal by another upon the depositor's written authority duly authenticated; and neither a
deposit nor a withdrawal will be permitted except upon the presentation of the depositor's savings
passbook, in which the amount deposited withdrawn shall be entered only by the Bank.

5. Withdrawals may be made by draft, mail or telegraphic transfer in currency of the account at the request
of the depositor in writing on the withdrawal slip or by authenticated cable. Such request must indicate the
name of the payee/s, amount and the place where the funds are to be paid. Any stamp, transmission and
other charges related to such withdrawals shall be for the account of the depositor and shall be paid by
him/her upon demand. Withdrawals may also be made in the form of travellers checks and in pesos.
Withdrawals in the form of notes/bills are allowed subject however, to their (availability).

6. Deposits shall not be subject to withdrawal by check, and may be withdrawal only in the manner above
provided, upon presentation of the depositor's savings passbook and with the withdrawal form supplied by
the Bank at the counter. 19

Under these rules, to be able to withdraw from the savings account deposit under the Philippine foreign currency
deposit system, two requisites must be presented to petitioner bank by the person withdrawing an amount: (a) a
duly filled-up withdrawal slip, and (b) the depositor's passbook. Private respondent admits he signed a blank
withdrawal slip ostensibly in violation of Rule No. 6 requiring that the request for withdrawal must name the payee,
the amount to be withdrawn and the place where such withdrawal should be made. That the withdrawal slip was in
fact a blank one with only private respondent's two signatures affixed on the proper spaces is buttressed by
petitioner's allegation in the instant petition that had private respondent indicated therein the person authorized to
receive the money, then Ruben Gayon, Jr. could not have withdrawn any amount. Petitioner contends that "(I)n
failing to do so (i.e., naming his authorized agent), he practically authorized any possessor thereof to write any
amount and to collect the same."20

Such contention would have been valid if not for the fact that the withdrawal slip itself indicates a special instruction
that the amount is payable to "Ramon A. de Guzman &/or Agnes C. de Guzman." Such being the case, petitioner's
personnel should have been duly warned that Gayon, who was also employed in petitioner's Buendia Ave. Extension
branch,21 was not the proper payee of the proceeds of the check. Otherwise, either Ramon or Agnes de Guzman
should have issued another authority to Gayon for such withdrawal. Of course, at the dorsal side of the withdrawal
slip is an "authority to withdraw" naming Gayon the person who can withdraw the amount indicated in the check.
Private respondent does not deny having signed such authority. However, considering petitioner's clear admission
that the withdrawal slip was a blank one except for private respondent's signature, the unavoidable conclusion is that
the typewritten name of "Ruben C. Gayon, Jr." was intercalated and thereafter it was signed by Gayon or whoever
was allowed by petitioner to withdraw the amount. Under these facts, there could not have been a principal-agent
relationship between private respondent and Gayon so as to render the former liable for the amount withdrawn.

Moreover, the withdrawal slip contains a boxed warning that states: "This receipt must be signed and presented with
the corresponding foreign currency savings passbook by the depositor in person. For withdrawals thru a
representative, depositor should accomplish the authority at the back." The requirement of presentation of the
passbook when withdrawing an amount cannot be given mere lip service even though the person making the
withdrawal is authorized by the depositor to do so. This is clear from Rule No. 6 set out by petitioner so that, for the
protection of the bank's interest and as a reminder to the depositor, the withdrawal shall be entered in the
depositor's passbook. The fact that private respondent's passbook was not presented during the withdrawal is
evidenced by the entries therein showing that the last transaction that he made with the bank was on September 3,
1984, the date he deposited the controversial check in the amount of $2,500.00. 22

In allowing the withdrawal, petitioner likewise overlooked another rule that is printed in the passbook. Thus:
 2. All deposits will be received as current funds and will be repaid in the same manner; provided, however,
that deposits of drafts, checks, money orders, etc. will be accented as subject to collection only and credited
to the account only upon receipt of the notice of final payment. Collection charges by the Bank's foreign
correspondent in effecting such collection shall be for the account of the depositor. If the account has
sufficient balance, the collection shall be debited by the Bank against the account. If, for any reason, the
proceeds of the deposited checks, drafts, money orders, etc., cannot be collected or if the Bank is required to
return such proceeds, the provisional entry therefor made by the Bank in the savings passbook and its
records shall be deemed automatically cancelled regardless of the time that has elapsed, and whether or not
the defective items can be returned to the depositor; and the Bank is hereby authorized to execute
immediately the necessary corrections, amendments or changes in its record, as well as on the savings
passbook at the first opportunity to reflect such cancellation. (Emphasis and underlining supplied.)

As correctly held by the Court of Appeals, in depositing the check in his name, private respondent did not become
the outright owner of the amount stated therein. Under the above rule, by depositing the check with petitioner,
private respondent was, in a way, merely designating petitioner as the collecting bank. This is in consonance with the
rule that a negotiable instrument, such as a check, whether a manager's check or ordinary check, is not legal
tender.23 As such, after receiving the deposit, under its own rules, petitioner shall credit the amount in private
respondent's account or infuse value thereon only after the drawee bank shall have paid the amount of the check or
the check has been cleared for deposit. Again, this is in accordance with ordinary banking practices and with this
Court's pronouncement that "the collecting bank or last endorser generally suffers the loss because has the duty to
ascertain the genuineness of all prior endorsements considering that the act of presenting the check for payment to
the drawee is an assertion that the party making the presentment has done its duty to ascertain the genuineness of
the endorsements."24 The rule finds more meaning in this case where the check involved is drawn on a foreign bank
and therefore collection is more difficult than when the drawee bank is a local one even though the check in question
is a manager's check.25

In Banco Atlantico v. Auditor General,26 Banco Atlantico, a commercial bank in Madrid, Spain, paid the amounts
represented in three (3) checks to Virginia Boncan, the finance officer of the Philippine Embassy in Madrid. The bank
did so without previously clearing the checks with the drawee bank, the Philippine National Bank in New York, on
account of the "special treatment" that Boncan received from the personnel of Banco Atlantico's foreign department.
The Court held that the encashment of the checks without prior clearance is "contrary to normal or ordinary banking
practice specially so where the drawee bank is a foreign bank and the amounts involved were large." Accordingly, the
Court approved the Auditor General's denial of Banco Atlantico's claim for payment of the value of the checks that
was withdrawn by Boncan.

Said ruling brings to light the fact that the banking business is affected with public interest. By the nature of its
functions, a bank is under obligation to treat the accounts of its depositors "with meticulous care, always having in
mind the fiduciary nature of their relationship." 27 As such, in dealing with its depositors, a bank should exercise its
functions not only with the diligence of a good father of a family but it should do so with the highest degree of care. 28

In the case at bar, petitioner, in allowing the withdrawal of private respondent's deposit, failed to exercise the
diligence of a good father of a family. In total disregard of its own rules, petitioner's personnel negligently handled
private respondent's account to petitioner's detriment. As this Court once said on this matter:

Negligence is the omission to do something which a reasonable man, guided by those considerations which
ordinarily regulate the conduct of human affairs, would do, or the doing of something which a prudent and
reasonable man would do. The seventy-eight (78)-year-old, yet still relevant, case of Picart v. Smith, provides
that test by which to determine the existence of negligence in a particular case which may be stated as
follows: Did the defendant in doing the alleged negligent act use that reasonable care and caution which an
ordinarily prudent person would have used in the same situation? If not, then he is guilty of negligence. The
law here in effect adopts the standard supposed to be supplied by the imaginary conduct of the
discreetpater-familias of the Roman law. The existence of negligence in a given case is not determined by
reference to the personal judgment of the actor in the situation before him. The law considers what would
be reckless, blameworthy, or negligent in the man of ordinary intelligence and prudence and determines
liability by that.29

Petitioner violated its own rules by allowing the withdrawal of an amount that is definitely over and above the
aggregate amount of private respondent's dollar deposits that had yet to be cleared. The bank's ledger on private
respondent's account shows that before he deposited $2,500.00, private respondent had a balance of only
$750.00.30 Upon private respondent's deposit of $2,500.00 on September 3, 1984, that amount was credited in his
ledger as a deposit resulting in the corresponding total balance of $3,250.00. 31 On September 10, 1984, the amount
of $600.00 and the additional charges of $10.00 were indicated therein as withdrawn thereby leaving a balance
$2,640.00. On September 30, 1984, an interest of $11.59 was reflected in the ledger and on October 23, 1984, the
amount of $2,541.67 was entered as withdrawn with a balance of $109.92. 32 On November 19, 1984 the word "hold"
was written beside the balance of $109.92. 33 That must have been the time when Reyes, petitioner's branch
manager, was informed unofficially of the fact that the check deposited was a counterfeit, but petitioner's Buendia
Ave. Extension Branch received a copy of the communication thereon from Wells Fargo Bank International in New
York the following day, November 20, 1984. 34 According to Reyes, Wells Fargo Bank International handled the clearing
of checks drawn against U.S. banks that were deposited with petitioner. 35

From these facts on record, it is at once apparent that petitioner's personnel allowed the withdrawal of an amount
bigger than the original deposit of $750.00 and the value of the check deposited in the amount of $2,500.00
although they had not yet received notice from the clearing bank in the United States on whether or not the check
was funded. Reyes' contention that after the lapse of the 35-day period the amount of a deposited check could be
withdrawn even in the absence of a clearance thereon, otherwise it could take a long time before a depositor could
make a withdrawal,36 is untenable. Said practice amounts to a disregard of the clearance requirement of the banking
system.

While it is true that private respondent's having signed a blank withdrawal slip set in motion the events that resulted
in the withdrawal and encashment of the counterfeit check, the negligence of petitioner's personnel was the
proximate cause of the loss that petitioner sustained. Proximate cause, which is determined by a mixed consideration
of logic, common sense, policy and precedent, is "that cause, which, in natural and continuous sequence, unbroken
by any efficient intervening cause, produces the injury, and without which the result would not have occurred." 37 The
proximate cause of the withdrawal and eventual loss of the amount of $2,500.00 on petitioner's part was its
personnel's negligence in allowing such withdrawal in disregard of its own rules and the clearing requirement in the
banking system. In so doing, petitioner assumed the risk of incurring a loss on account of a forged or counterfeit
foreign check and hence, it should suffer the resulting damage.1âwphi1.nêt

WHEREFORE, the petition for review on certiorari is DENIED. The Decision of the Court of Appeals in CA-G.R. CV No.
37392 is AFFIRMED.

SO ORDERED.
E. M. WRIGHT vs. MANILA ELECTRIC R.R. & LIGHT CO. [G.R. No. L-7760. October 1, 1914]

This is an action brought to recover damages for injuries sustained in an accident which occurred in Caloocan on the
night of August 8, 1909.

The defendant is a corporation engaged in operating an electric street railway in the city of Manila and its suburbs,
including the municipality of Caloocan. The plaintiff's residence in Caloocan fronts on the street along which
defendant's tracks run, so that to enter his premises from the street plaintiff is obliged to cross defendant's tracks. On
the night mentioned plaintiff drove home in a calesa and in crossing the tracks to enter his premises the horse
stumbled, leaped forward, and fell, causing the vehicle with the rails, resulting in a sudden stop, threw plaintiff from
the vehicle and caused the injuries complained of.

It is undisputed that at the point where plaintiff crossed the tracks on the night in question not only the rails were
above-ground, but that the ties upon which the rails rested projected from one-third to one-half of their depth out of
the ground, thus making the tops of the rails some 5 or 6 inches or more above the level of the street.

It is admitted that the defendant was negligent in maintaining its tracks as described, but it is contended that the
plaintiff was also negligent in that he was intoxicated to such an extent at the time of the accident that he was unable
to take care of himself properly and that such intoxication was the primary cause of the accident.

The trial court held that both parties were negligent, but that the plaintiff's negligence was not as great as
defendant's and under the authority of the case of Rakes vs. A. G. & P. Co. (7 Phil. Rep., 359) apportioned the
damages and awarded plaintiff a judgment of P1,000.

The question before us is stated by the defendant thus: "Accepting the findings of the trial court that both plaintiff
and defendant were guilty of negligence, the only question to be considered is whether the negligence of plaintiff
contributed t the 'principal occurrence' or 'only to his own injury.' If the former, he cannot recover; if the latter, the
trial court was correct in apportioning the damages."

The questioned as stated by plaintiff is as follows: "The main question at issue is whether or not the plaintiff was
negligent, and, if so, to what extent. If the negligence of the plaintiff was the primary cause of the accident then, of
course, he cannot recover; if his negligence had nothing to do with the accident but contributed to his injury, then
the court was right in apportioning the damages, but if there was no negligence on the part of the plaintiff, then he
should be awarded damages adequates to the injury sustained."

In support of the defendant's contention counsel says: "Defendant's negligence was its failure properly to maintain
the track; plaintiff's negligence was his intoxication; the 'principal occurrence' was plaintiff's fall from his calesa. It
seems clear that plaintiff's intoxication contributed to the fall; if he had been sober, it can hardly be doubted that he
would have crossed the track safely, as he had done a hundred times before."

While both parties appealed from the decision, the defendant on the ground that it was not liable and the plaintiff on
the ground that the damages were insufficient according to the evidence, and while the plaintiff made a motion for a
new trial upon the statutory grounds and took proper exception to the denial thereof, thus conferring upon this court
jurisdiction to determine the question of fact, nevertheless, not all of the testimony taken on the trial, so far as can
be gathered from the record, has been brought to this court. There seems to have been two hearings, one on the
31st of August and the other on the 28th of September. The evidence taken on the first hearing is here; that taken on
the second is not. Not all the evidence taken on the hearings being before the court, we must refuse, under our
rules, to consider even that evidence which is here; and, in the decision of this case, we are, therefore, relegated to
the facts stated in the opinion of the court and the pleadings filed.

A careful reading of the decision of the trial court leads us to the conclusion that there is nothing in the opinion
which sustains the conclusion of the court that the plaintiff was negligent with reference to the accident which is the
basis of this action. Mere intoxication establish a want of ordinary care. It is but a circumstance to be considered with
the other evidence tending to prove negligence. It is the general rule that it is immaterial whether a man is drunk or
sober if no want of ordinary care or prudence can be imputed to him, and no greater degree of care is required than
by a sober one. If one's conduct is characterized by a proper degree of care and prudence, it is immaterial whether
he is drunk or sober. (Ward vs. Chicago etc., R. R. Co., 85 Wis., 601; H & T. C. R. Co. vs. Reason, 61 Tex., 613; Alger vs.
Lowell, 3 Allen, Mass., 402; Central R. R. Co. vs. Phinazee, 93 Ga., 488; Maguire vs. Middlesex R. R. Co., 115 Mass.,
239; Meyer vs. Pacific R. R. Co., 40 Mo., 151., Chicago & N. W. R. R. Co. vs. Drake, 33 Ill. App., 114.)

If intoxication is not in itself negligence, what are the facts found by the trial court and stated in its opinion upon
which may be predicated the finding that the plaintiff did not use ordinary care and prudence and that the
intoxication contributed to the injury complained of? After showing clearly and forcibly the negligence of the
defendant in leaving its tracks in the condition in which they were on the night of the injury, the court has the
following to say, and it is all that can be found in its opinion, with reference to the negligence of the plaintiff: "With
respect to the condition in which Mr. Wright was on returning to his house on the night in question, the testimony of
Doctor Kneedler, who was the physician who attended him an hour after the accident, demonstrates that he was
intoxicated. . . . .

If the defendant or its employees were negligent by reason of having left the rails and a part of the ties
uncovered in a street where there is a large amount of travel, the plaintiff was no less negligent, he not
having abstained from his custom of taking more wine than he could carry without disturbing his judgment
and his self-control, he knowing that he had to drive a horse and wagon and to cross railroad tracks which
were to a certain extent dangerous by reason of the rails being elevated above the level of the street.

If the plaintiff had been prudent on the night in question and had not attempted to drive his conveyance
while in a drunken condition, he would certainly have avoided the damages which he received, although the
company, on its part, was negligent in maintaining its tracks in a bad condition for travel.

Both parties, therefore, were negligent and both contributed to the damages resulting to the plaintiff,
although the plaintiff, in the judgment of the court, contributed in greater proportion to the damages that
did the defendant.

As is clear from reading the opinion, no facts are stated therein which warrant the conclusion that the plaintiff was
negligent. The conclusion that if he had been sober he would not have been injured is not warranted by the facts as
found. It is impossible to say that a sober man would not have fallen from the vehicle under the conditions described.
A horse crossing the railroad tracks with not only the rails but a portion of the ties themselves aboveground,
stumbling by reason of the unsure footing and falling, the vehicle crashing against the rails with such force as to
break a wheel, this might be sufficient to throw a person from the vehicle no matter what his condition; and to
conclude that, under such circumstances, a sober man would not have fallen while a drunken man did, is to draw a
conclusion which enters the realm of speculation and guesswork.

It having been found that the plaintiff was not negligent, it is unnecessary to discuss the question presented by the
appellant company with reference to the applicability of the case of Rakes vs. A. G. & P. Co., above; and we do not
find facts in the opinion of the court below which justify a larger verdict than the one found.

Separate Opinions (CARSON, J., dissenting)

I dissent. I think, in the first place, that before pronouncing judgment the parties should have an opportunity, if they
so desire, to correct the manifestly accidental omission from the record of a part of the transcript of the record. It is
very clear that when the case was submitted, and the brief filed, both parties were under the mistaken impression
that all the evidence was in the record.

I think, furthermore, that if the case is to be decided on the findings of fact by the trial judge, these findings
sufficiently establish the negligence of the plaintiff.1awphil.net

The trail judge expressly found that —

If the plaintiff had been prudent on the night in question and had not attempted to drive his conveyance
while in a drunken condition, he would certainly have avoided the damages which he received, although the
company, on its part was negligent in maintaining its tracks in a bad condition for travel.

This is a finding of fact — the fact of negligence — and I know of no rule which requires the trial court to set forth not
only the ultimate facts found by it, but also all the evidentiary facts on which such conclusions are based. The finding
is not in conflict with the other facts found by the trial judge, and though it is not fully sustained thereby, we must
assume, if we decline to examine the record, that there were evidentiary facts disclosed at the trial which were
sufficient to sustain the finding if negligence. "The statement of facts must contain only those facts which are
essential to a clear understanding of the issues presented and the facts involved." (Act No. 190, sec. 133.)

The facts required to be found are the ultimate facts forming the issues presented by the pleadings, and
which constitute the fundation for a judgment, and not those that are merely evidentiary facts, or to set
forth and explain the means or processes by which he arrived at such findings. Neither evidence, argument,
nor comment has any legitimate place in findings of facts. (Conlan vs. Grace, 36 Minn., 276, 282.)

UNITED STATES vs. BAGGAY, JR. (G.R. No. 6659. September 1, 1911)

This is an appeal by the defendant from the judgment rendered on April 28, 1910, whereby he was declared exempt
from criminal liability but was obliged to indemnify the heirs if the murdered woman, Bil-liingan, in the sum of
P1,000, to pay the costs in the case and to be confined in an institution for the insane until further order of the court.

About the 4th of October, 1909, several persons were assembled in the defendant's house in the township of
Penarrubia, Abra, Province of Ilocos Sur, for the purpose of holding a song service called "buni" according to the
Tinguian custom, when he, the non-Christian Baggay, without provocation suddenly attacked the woman Bil-liingan
with a bolo, inflicting a serious wound on her head from which she expired immediately; and with the same bolo he
like wise inflicted various wounds on the women named Calabayan, Agueng, Quisamay, Calapini, and on his own
mother, named Dioalan.

For this reason the provincial fiscal filed a complaint in the court of Ilocos Sur, dated February 15, charging the non-
Christian Baggay, jr., with murder, because of the violent death of the woman Bil-liingan. This cause was instituted
separately from the other, No. 1109, for lesiones. After trial and proof that the defendant was suffering from mental
aberration, the judge on April 28 rendered the judgment cited above, whereupon the defendant's counsel appealed
to this court.

By another writing of June 27, the same counsel asked for immediate suspension of execution of the judgment,
because it had been appealed and had not become final. He also requested annulment of the sale at public auction
of the property attached by the sheriff or his deputy under order of the court, for making indemnification with the
defendant's property in accordance with said judgment, as the attachment had been executed upon the property of
the non-Christian woman named Dioalan and of other persons, and not upon that of the defendant.

In opposition thereto, the provincial fiscal on the 30th of the same month requested in writing that the appeal from
this judgment filed by the counsel for the defense be not admitted or carried forward, representing that it was out of
order as having been submitted beyond the limit; for the very day said judgment was rendered, April 28, 1910, the
accused's counsel, Sotero Serrano, was verbally notified thereof, and it is therefore untrue that he was notified only
on June 17 of said year, on which date he read and examined the case and without the clerk's knowledge signed the
same, making it appear that he was notified on that date, June 17, what he had known since April 28 of the
judgment, of which the judge had verbally informed him, although the latter did not then have him sign it.

In reply to this motion of the provincial fiscal, the defense requested that the appeal filed be admitted and carried for
ward, representing that, when the court verbally announced his decision to defendant's counsel, the judgment had
not yet been entered, and therefore neither the defendant nor his counsel could be notified thereof in legal form
until said date, June 17.

Passing upon this motion on August 2, 1910, the court declared said appeal out of order and dismissed it; and,
furthermore, denied the petition for suspension of judgment, as said judgment had become final.

Thereupon, counsel for the defendant resorted to this court with a petition praying that a writ be issued directing
said judge, Chanco, to admit the appeal and forward it, at the same time annulling all action taken for execution of
the judgments rendered in the causes for murder and for lesiones. After consideration thereof, the Attorney-General,
on behalf of said judge and of the provincial fiscal, requested that this remedy be declared out of order, as the
issuance of such writ against the judge of the Court of First Instance of Ilocos Sur, and much more against the
provincial fiscal, was not in accordance with law; but this court by order of November 15 saw fit to declare said
remedy of mandamus to be in order and issued a written order directing the judge of the Court of First Instance to
immediately admit the appeal filed in these two causes and to forward all the records to this higher court. At the
same time he was instructed to refrain absolutely from executing said judgments or causing them to be executed
while said appeals were pending, a prohibition that was extended to the provincial sheriff, his agents and
representatives, until further order from this court. Upon notification of the foregoing and in compliance therewith,
the judge by order of November 22 admitted the appeal filed by counsel for the defense both in the cause for murder
and in that for lesiones.

The question raised on the appeal filed in this case by counsel for the insane defendant, Baggay, jr., is solely whether
he, notwithstanding that he was held exempt from criminal liability, has nevertheless incurred civil liability, with
obligation to indemnify the heirs of the murdered woman and to pay the costs.

Article 17 of the Penal Code states:

Every person criminally liable for a crime or misdemeanor is also civilly liable.

Article 18 of the same code says:

The exemption from criminal liability declared in Nos. 1, 2, 3, 7, and 10 of article 8 does not include
exemption from civil liability, which shall be enforced, subject to the following:

(1) In cases 1, 2, and 3, the persons who are civilly liable for acts committed by a lunatic or imbecile, or a
person under 9 years of age, or over this age and under 15, who has not acted with the exercise of judgment,
are those who have them under their authority, legal guardianship or power, unless they prove that there
was no blame or negligence on their part.

Should there be no person having them under his authority, legal guardian, or power, if such person be
insolvent, the said lunatics, imbeciles, or minors shall answer with their own property, excepting that part
which is exempted for their support in accordance with the civil law.

True it is that civil liability accompanies criminal liability, because every person liable criminally for a crime or
misdemeanor is also liable for reparation of damage and for indemnification of the harm done, but there may be civil
liability because of acts ordinarily punishable, although the law has declared their perpetrators exempt from criminal
liability. Such is the case of a lunatic or insane person who, in spite of his irresponsibility on account of the deplorable
condition of his deranged mind, is still reasonably and justly liable with his property for the consequences of his acts,
even though they be performed unwittingly, for the reason that his fellows ought not to suffer for the disastrous
results of his harmful acts more than is necessary, in spite of his unfortunate condition. Law and society are under
obligation to protect him during his illness and so when he is declared to be liable with his property for reparation
and indemnification, he is still entitled to the benefit of what is necessary for his decent maintenance, but this
protection does not exclude liability for damage caused to those who may have the misfortune to suffer the
consequences of his acts.

According to the law, the persons in the first place liable. are those who have the insane party under their care or
guardianship, unless they prove that there was no blame or negligence on their part; but if the demented person or
imbecile lack a guardian or some person charged with his care, if the latter be insolvent, then his own property must
meet the civil liability of indemnifying or repairing the damage done, and for this reason judges and courts in
rendering judgment in a criminal cause prosecuted against an insane or demented person, even when they hold the
accused exempt from criminal liability, must fix the civil liability of the persons charged with watching over and caring
for him or the liability of the demented person him self with his property for reparation of the damage and
indemnification for the harm done, unless the offended party or the heirs of the person murdered expressly
renounce such reparation or indemnification.

Therefore, the judgment appealed from being in accordance with law, affirmation thereof is proper, and it is hereby
affirmed, with costs against the appellant.