G.R. No.
175773 June 17, 2013 Maternity cases are not covered by this section but will be under the next succeeding section on
MITSUBISHI MOTORS PHILIPPINES SALARIED EMPLOYEES UNION
(MMPSEU), Petitioner,
vs.
MITSUBISHI MOTORS PHILIPPINES CORPORATION, Respondent.
The Collective Bargaining Agreement (CBA) of the parties in this case provides that the company
shoulder the hospitalization expenses of the dependents of covered employees subject to certain
limitations and restrictions. Accordingly, covered employees pay part of the hospitalization insurance
premium through monthly salary deduction while the company, upon hospitalization of the covered
employees' dependents, shall pay the hospitalization expenses incurred for the same. The conflict
arose when a portion of the hospitalization expenses of the covered employees' dependents were
paid/shouldered by the dependent's own health insurance. While the company refused to pay the
portion of the hospital expenses already shouldered by the dependents' own health insurance, the
union insists that the covered employees are entitled to the whole and undiminished amount of said
hospital expenses.
By this Petition for Review on Certiorari,1 petitioner Mitsubishi Motors Philippines Salaried
Employees Union (MMPSEU) assails the March 31, 2006 Decision2 and December 5, 2006
Resolution3 of the Court of Appeals (CA) in CA-G.R. SP No. 75630, which reversed and set aside the
Voluntary Arbitrator’s December 3, 2002 Decision4 and declared respondent Mitsubishi Motors
Philippines Corporation (MMPC) to be under no legal obligation to pay its covered employees’
dependents’ hospitalization expenses which were already shouldered by other health insurance
companies.
Factual Antecedents
The parties’ CBA5 covering the period August 1, 1996 to July 31, 1999 provides for the
hospitalization insurance benefits for the covered dependents, thus:
SECTION 4. DEPENDENTS’ GROUP HOSPITALIZATION INSURANCE – The COMPANY shall
obtain group hospitalization insurance coverage or assume under a self-insurance basis hospitalization
for the dependents of regular employees up to a maximum amount of forty thousand pesos
(₱40,000.00) per confinement subject to the following:
a. The room and board must not exceed three hundred pesos (₱300.00) per day up to a
maximum of thirty-one (31) days. Similarly, Doctor’s Call fees must not exceed three
hundred pesos (₱300.00) per day for a maximum of thirty-one (31) days. Any excess of this
amount shall be borne by the employee.
b. Confinement must be in a hospital designated by the COMPANY. For this purpose, the
COMPANY shall designate hospitals in different convenient places to be availed of by the
dependents of employees. In cases of emergency where the dependent is confined without
the recommendation of the company doctor or in a hospital not designated by the
COMPANY, the COMPANY shall look into the circumstances of such confinement and
arrange for the payment of the amount to the extent of the hospitalization benefit.
c. The limitations and restrictions listed in Annex "B" must be observed.
d. Payment shall be direct to the hospital and doctor and must be covered by actual billings.
Each employee shall pay one hundred pesos (₱100.00) per month through salary deduction as his
share in the payment of the insurance premium for the above coverage with the balance of the
premium to be paid by the COMPANY. If the COMPANY is self-insured the one hundred pesos
(₱100.00) per employee monthly contribution shall be given to the COMPANY which shall shoulder
the expenses subject to the above level of benefits and subject to the same limitations and restrictions
provided for in Annex "B" hereof.
The hospitalization expenses must be covered by actual hospital and doctor’s bills and any amount in
excess of the above mentioned level of benefits will be for the account of the employee.
For purposes of this provision, eligible dependents are the covered employees’ natural parents, legal
spouse and legitimate or legally adopted or step children who are unmarried, unemployed who have
not attained twenty-one (21) years of age and wholly dependent upon the employee for support.
This provision applies only in cases of actual confinement in the hospital for at least six (6) hours.
maternity benefits.6
When the CBA expired on July 31, 1999, the parties executed another CBA7 effective August 1, 1999
to July 31, 2002 incorporating the same provisions on dependents’ hospitalization insurance benefits
but in the increased amount of ₱50,000.00. The room and board expenses, as well as the doctor’s call
fees, were also increased to ₱375.00.
On separate occasions, three members of MMPSEU, namely, Ernesto Calida (Calida), Hermie Juan
Oabel (Oabel) and Jocelyn Martin (Martin), filed claims for reimbursement of hospitalization
expenses of their dependents.
MMPC paid only a portion of their hospitalization insurance claims, not the full amount. In the case
of Calida, his wife, Lanie, was confined at Sto. Tomas University Hospital from September 4 to 9,
1998 due to Thyroidectomy. The medical expenses incurred totalled ₱29,967.10. Of this amount,
₱9,000.00 representing professional fees was paid by MEDICard Philippines, Inc. (MEDICard) which
provides health maintenance to Lanie.8 MMPC only paid ₱12,148.63.9 It did not pay the ₱9,000.00
already paid by MEDICard and the ₱6,278.47 not covered by official receipts. It refused to give to
Calida the difference between the amount of medical expenses of ₱27,427.10 10 which he claimed to
be entitled to under the CBA and the ₱12,148.63 which MMPC directly paid to the hospital.
In the case of Martin, his father, Jose, was admitted at The Medical City from March 26 to 27, 2000
due to Acid Peptic Disease and incurred medical expenses amounting to ₱9,101.30. 14 MEDICard paid
₱8,496.00.15Consequently, MMPC only paid ₱288.40,16 after deducting from the total medical
expenses the amount paid by MEDICard and the ₱316.90 discount given by the hospital.
Claiming that under the CBA, they are entitled to hospital benefits amounting to ₱27,427.10,
₱6,769.35 and ₱8,123.80, respectively, which should not be reduced by the amounts paid by
MEDICard and by Prosper, Calida, Oabel and Martin asked for reimbursement from MMPC.
However, MMPC denied the claims contending that double insurance would result if the said
employees would receive from the company the full amount of hospitalization expenses despite
having already received payment of portions thereof from other health insurance providers.
This prompted the MMPSEU President to write the MMPC President 17 demanding full payment of
the hospitalization benefits. Alleging discrimination against MMPSEU union members, she pointed
out that full reimbursement was given in a similar claim filed by Luisito Cruz (Cruz), a member of the
Hourly Union. In a letter-reply,18 MMPC, through its Vice-President for Industrial Relations Division,
clarified that the claims of the said MMPSEU members have already been paid on the basis of official
receipts submitted. It also denied the charge of discrimination and explained that the case of Cruz
involved an entirely different matter since it concerned the admissibility of certified true copies of
documents for reimbursement purposes, which case had been settled through voluntary arbitration.
On August 28, 2000, MMPSEU referred the dispute to the National Conciliation and Mediation
Board and requested for preventive mediation.19
Proceedings before the Voluntary Arbitrator
On October 3, 2000, the case was referred to Voluntary Arbitrator Rolando Capocyan for resolution
of the issue involving the interpretation of the subject CBA provision.20
MMPSEU alleged that there is nothing in the CBA which prohibits an employee from obtaining other
insurance or declares that medical expenses can be reimbursed only upon presentation of original
official receipts. It stressed that the hospitalization benefits should be computed based on the formula
indicated in the CBA without deducting the benefits derived from other insurance providers. Besides,
if reduction is permitted, MMPC would be unjustly benefited from the monthly premium contributed
by the employees through salary deduction. MMPSEU added that its members had legitimate claims
under the CBA and that any doubt as to any of its provisions should be resolved in favor of its
members. Moreover, any ambiguity should be resolved in favor of labor. 21
On the other hand, MMPC argued that the reimbursement of the entire amounts being claimed by the
covered employees, including those already paid by other insurance companies, would constitute
double indemnity or double insurance, which is circumscribed under the Insurance Code. Moreover, a
contract of insurance is a contract of indemnity and the employees cannot be allowed to profit from
their dependents’ loss.22
Meanwhile, the parties separately sought for a legal opinion from the Insurance Commission relative
to the issue at hand. In its letter23 to the Insurance Commission, MMPC requested for confirmation of
its position that the covered employees cannot claim insurance benefits for a loss that had already
been covered or paid by another insurance company. However, the Office of the Insurance
Commission opted not to render an opinion on the matter as the same may become the subject of a
formal complaint before it.24 On the other hand, when queried by MMPSEU,25the Insurance
Commission, through Atty. Richard David C. Funk II (Atty. Funk) of the Claims Adjudication
Division, rendered an opinion contained in a letter,26 viz:
Ms. Cecilia L. ParasPresident
Mitsubishi Motors Phils.
[Salaried] Employees Union
Ortigas Avenue Extension,
Cainta, Rizal
Madam:
We acknowledge receipt of your letter which, to our impression, basically poses the question of
whether or not recovery of medical expenses from a Health Maintenance Organization bars recovery
of the same reimbursable amount of medical expenses under a contract of health or medical
insurance.
We wish to opine that in cases of claims for reimbursement of medical expenses where there are two
contracts providing benefits to that effect, recovery may be had on both simultaneously. In the
absence of an Other Insurance provision in these coverages, the courts have uniformly held that an
insured is entitled to receive the insurance benefits without regard to the amount of total benefits
provided by other insurance. (INSURANCE LAW, A Guide to Fundamental Principles, Legal
Doctrines, and Commercial Practices; Robert E. Keeton, Alau I. Widiss, p. 261). The result is
consistent with the public policy underlying the collateral source rule – that is, x x x the courts have
usually concluded that the liability of a health or accident insurer is not reduced by other possible
sources of indemnification or compensation. (ibid).
Very truly yours,
RICHARD DAVID C. FUNK II
Officer-in-Charge
Claims Adjudication Division
(SGD.)
Attorney IV
On December 3, 2002, the Voluntary Arbitrator rendered a Decision 27 finding MMPC liable to pay or
reimburse the amount of hospitalization expenses already paid by other health insurance companies.
The Voluntary Arbitrator held that the employees may demand simultaneous payment from both the
CBA and their dependents’ separate health insurance without resulting to double insurance, since
separate premiums were paid for each contract. He also noted that the CBA does not prohibit
reimbursement in case there are other health insurers.
Proceedings before the Court of Appeals
MMPC filed a Petition for Review with Prayer for the Issuance of a Temporary Restraining Order
and/or Writ of Preliminary Injunction28 before the CA. It claimed that the Voluntary Arbitrator
committed grave abuse of discretion in not finding that recovery under both insurance policies
constitutes double insurance as both had the same subject matter, interest insured and risk or peril
insured against; in relying solely on the unauthorized legal opinion of Atty. Funk; and in not finding
that the employees will be benefited twice for the same loss. In its Comment, 29 MMPSEU countered
that MMPC will unjustly enrich itself and profit from the monthly premiums paid if full
reimbursement is not made.
On March 31, 2006, the CA found merit in MMPC’s Petition. It ruled that despite the lack of a
provision which bars recovery in case of payment by other insurers, the wordings of the subject
provision of the CBA showed that the parties intended to make MMPC liable only for expenses
actually incurred by an employee’s qualified dependent. In particular, the provision stipulates that
payment should be made directly to the hospital and that the claim should be supported by actual
hospital and doctor’s bills. These mean that the employees shall only be paid amounts not covered by
other health insurance and is more in keeping with the principle of indemnity in insurance contracts.
Besides, a contrary interpretation would "allow unscrupulous employees to unduly profit from the x x
x benefits" and shall "open the floodgates to questionable claims x x x."30
The dispositive portion of the CA Decision31 reads:
WHEREFORE, the instant petition is GRANTED. The decision of the voluntary arbitrator dated
December 3, 2002 is REVERSED and SET ASIDE and judgment is rendered declaring that under
Art. XI, Sec. 4 of the Collective Bargaining Agreement between petitioner and respondent effective
August 1, 1999 to July 31, 2002, the former’s obligation to reimburse the Union members for the
hospitalization expenses incurred by their dependents is exclusive of those paid by the Union
members to the hospital.
SO ORDERED.32
In its Motion for Reconsideration,33 MMPSEU pointed out that the alleged oppression that may be
committed by abusive employees is a mere possibility whereas the resulting losses to the employees
are real. MMPSEU cited Samsel v. Allstate Insurance Co., 34 wherein the Arizona Supreme Court
explicitly ruled that an insured may recover from separate health insurance providers, regardless of
whether one of them has already paid the medical expenses incurred. On the other hand, MMPC
argued in its Comment35 that the cited foreign case involves a different set of facts.
The CA, in its Resolution36 dated December 5, 2006, denied MMPSEU’s motion.
Hence, this Petition.
Issues
MMPSEU presented the following grounds in support of its Petition:
A.
THE COURT OF APPEALS SERIOUSLY ERRED WHEN IT REVERSED THE DECISION
DATED 03 [DECEMBER] 2002 OF THE VOLUNTARY ARBITRATOR BELOW WHEN THE
SAME WAS SUPPORTED BY SUBSTANTIAL EVIDENCE, INCLUDING THE OPINION OF
THE INSURANCE COMMISSION THAT RECOVERY FROM BOTH THE CBA AND
SEPARATE HEALTH CARDS IS NOT PROHIBITED IN THE ABSENCE OF ANY SPECIFIC
PROVISION IN THE CBA.
B.
THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR IN OVERTURNING THE
DECISION OF THE VOLUNTARY ARBITRATOR WITHOUT EVEN GIVING ANY LEGAL OR
JUSTIFIABLE BASIS FOR SUCH REVERSAL.
C.
THE COURT OF APPEALS COMMITTED GRAVE ERROR IN REFUSING TO CONSIDER OR
EVEN MENTION ANYTHING ABOUT THE AMERICAN AUTHORITIES CITED IN THE
RECORDS THAT DO NOT PROHIBIT, BUT IN FACT ALLOW, RECOVERY FROM TWO
SEPARATE HEALTH PLANS.
D.
THE COURT OF APPEALS GRAVELY ERRED IN GIVING MORE IMPORTANCE TO A
POSSIBLE, HENCE MERELY SPECULATIVE, ABUSE BY EMPLOYEES OF THE BENEFITS
IF DOUBLE RECOVERY WERE ALLOWED INSTEAD OF THE REAL INJURY TO THE
EMPLOYEES WHO ARE PAYING FOR THE CBA HOSPITALIZATION BENEFITS THROUGH
MONTHLY SALARY DEDUCTIONS BUT WHO MAY NOT BE ABLE TO AVAIL OF THE
SAME IF THEY OR THEIR DEPENDENTS HAVE OTHER HEALTH INSURANCE.37
MMPSEU avers that the Decision of the Voluntary Arbitrator deserves utmost respect and finality
because it is supported by substantial evidence and is in accordance with the opinion rendered by the
Insurance Commission, an agency equipped with vast knowledge concerning insurance contracts. It
maintains that under the CBA, member-employees are entitled to full reimbursement of medical
expenses incurred by their dependents regardless of any amounts paid by the latter’s health insurance
provider. Otherwise, non-recovery will constitute unjust enrichment on the part of MMPC. It avers
that recovery from both the CBA and other insurance companies is allowed under their CBA and not
prohibited by law nor by jurisprudence.
Our Ruling
The Petition has no merit.
Atty. Funk erred in applying the
collateral source rule.
The Voluntary Arbitrator based his ruling on the opinion of Atty. Funk that the employees may
recover benefits from different insurance providers without regard to the amount of benefits paid by
each. According to him, this view is consistent with the theory of the collateral source rule.
As part of American personal injury law, the collateral source rule was originally applied to tort cases
wherein the defendant is prevented from benefiting from the plaintiff’s receipt of money from other
sources.38 Under this rule, if an injured person receives compensation for his injuries from a source
wholly independent of the tortfeasor, the payment should not be deducted from the damages which he
would otherwise collect from the tortfeasor.39 In a recent Decision40 by the Illinois Supreme Court,
the rule has been described as "an established exception to the general rule that damages in negligence
actions must be compensatory." The Court went on to explain that although the rule appears to allow
a double recovery, the collateral source will have a lien or subrogation right to prevent such a double
recovery.41 In Mitchell v. Haldar,42 the collateral source rule was rationalized by the Supreme Court
of Delaware:
The collateral source rule is ‘predicated on the theory that a tortfeasor has no interest in, and therefore
no right to benefit from monies received by the injured person from sources unconnected with the
defendant’. According to the collateral source rule, ‘a tortfeasor has no right to any mitigation of
damages because of payments or compensation received by the injured person from an independent
source.’ The rationale for the collateral source rule is based upon the quasi-punitive nature of tort law
liability. It has been explained as follows:
The collateral source rule is designed to strike a balance between two competing principles of tort
law: (1) a plaintiff is entitled to compensation sufficient to make him whole, but no more; and (2) a
defendant is liable for all damages that proximately result from his wrong. A plaintiff who receives a
double recovery for a single tort enjoys a windfall; a defendant who escapes, in whole or in part,
liability for his wrong enjoys a windfall. Because the law must sanction one windfall and deny the
other, it favors the victim of the wrong rather than the wrongdoer.
Thus, the tortfeasor is required to bear the cost for the full value of his or her negligent conduct even
if it results in a windfall for the innocent plaintiff. (Citations omitted)
As seen, the collateral source rule applies in order to place the responsibility for losses on the party
causing them.43Its application is justified so that "'the wrongdoer should not benefit from the
expenditures made by the injured party or take advantage of contracts or other relations that may exist
between the injured party and third persons."44Thus, it finds no application to cases involving no-fault
insurances under which the insured is indemnified for losses by insurance companies, regardless of
who was at fault in the incident generating the losses.45 Here, it is clear that MMPC is a no-fault
insurer. Hence, it cannot be obliged to pay the hospitalization expenses of the dependents of its
employees which had already been paid by separate health insurance providers of said dependents.
The Voluntary Arbitrator therefore erred in adopting Atty. Funk’s view that the covered employees
are entitled to full payment of the hospital expenses incurred by their dependents, including the
amounts already paid by other health insurance companies based on the theory of collateral source
rule.
The conditions set forth in the CBA provision indicate an intention to limit MMPC’s liability only to
actual expenses incurred by the employees’ dependents, that is, excluding the amounts paid by
dependents’ other health insurance providers.
The Voluntary Arbitrator ruled that the CBA has no express provision barring claims for
hospitalization expenses already paid by other insurers. Hence, the covered employees can recover
from both. The CA did not agree, saying that the conditions set forth in the CBA implied an intention
of the parties to limit MMPC’s liability only to the extent of the expenses actually incurred by their
dependents which excludes the amounts shouldered by other health insurance companies.
We agree with the CA. The condition that payment should be direct to the hospital and doctor implies
that MMPC is only liable to pay medical expenses actually shouldered by the employees’ dependents.
It follows that MMPC’s liability is limited, that is, it does not include the amounts paid by other
health insurance providers. This condition is obviously intended to thwart not only fraudulent claims
but also double claims for the same loss of the dependents of covered employees.
It is well to note at this point that the CBA constitutes a contract between the parties and as such, it
should be strictly construed for the purpose of limiting the amount of the employer’s liability. 46 The
terms of the subject provision are clear and provide no room for any other interpretation. As there is
no ambiguity, the terms must be taken in their plain, ordinary and popular sense. 47 Consequently,
MMPSEU cannot rely on the rule that a contract of insurance is to be liberally construed in favor of
the insured. Neither can it rely on the theory that any doubt must be resolved in favor of labor.
Samsel v. Allstate Insurance Co. is not
on all fours with the case at bar.
MMPSEU cannot rely on Samsel v. Allstate Insurance Co. where the Supreme Court of Arizona
allowed the insured to enjoy medical benefits under an automobile policy insurance despite being able
to also recover from a separate health insurer. In that case, the Allstate automobile policy does not
contain any clause restricting medical payment coverage to expenses actually paid by the insured nor
does it specifically provide for reduction of medical payments benefits by a coordination of
benefits.48 However, in the case before us, the dependents’ group hospitalization insurance provision
in the CBA specifically contains a condition which limits MMPC’s liability only up to the extent of
the expenses that should be paid by the covered employee’s dependent to the hospital and doctor. This
is evident from the portion which states that "payment by MMPC shall be direct to the hospital and
doctor."49 In contrast, the Allstate automobile policy expressly gives Allstate the authority to pay
directly to the insured person or on the latter’s behalf all reasonable expenses actually incurred.
Therefore, reliance on Samsel is unavailing because the facts therein are different and not decisive of
the issues in the present case.
To allow reimbursement of amounts paid
under other insurance policies shall
constitute double recovery which is not
sanctioned by law.
MMPSEU insists that MMPC is also liable for the amounts covered under other insurance policies;
otherwise, MMPC will unjustly profit from the premiums the employees contribute through monthly
salary deductions.
This contention is unmeritorious.
To constitute unjust enrichment, it must be shown that a party was unjustly enriched in the sense that
the term unjustly could mean illegally or unlawfully.50 A claim for unjust enrichment fails when the
person who will benefit has a valid claim to such benefit. 51
The CBA has provided for MMPC’s limited liability which extends only up to the amount to be paid
to the hospital and doctor by the employees’ dependents, excluding those paid by other insurers.
Consequently, the covered employees will not receive more than what is due them; neither is MMPC
under any obligation to give more than what is due under the CBA.
Moreover, since the subject CBA provision is an insurance contract, the rights and obligations of the
parties must be determined in accordance with the general principles of insurance law.52 Being in the
nature of a non-life insurance contract and essentially a contract of indemnity, the CBA provision
obligates MMPC to indemnify the covered employees’ medical expenses incurred by their dependents
but only up to the extent of the expenses actually incurred.53 This is consistent with the principle of
indemnity which proscribes the insured from recovering greater than the loss. 54 Indeed, to profit from
a loss will lead to unjust enrichment and therefore should not be countenanced. As aptly ruled by the
CA, to grant the claims of MMPSEU will permit possible abuse by employees.
WHEREFORE, the Petition is DENIED. The Decision dated March 31, 2006 and Resolution dated
December 5, 2006 of the Court of Appeals in CA-G.R. SP No. 75630, are AFFIRMED.
SO ORDERED.
G.R. No. L-48006 July 8, 1942
FAUSTO BARREDO, petitioner,
vs.
SEVERINO GARCIA and TIMOTEA ALMARIO, respondents.
This case comes up from the Court of Appeals which held the petitioner herein, Fausto Barredo, liable
in damages for the death of Faustino Garcia caused by the negligence of Pedro Fontanilla, a taxi
driver employed by said Fausto Barredo.
At about half past one in the morning of May 3, 1936, on the road between Malabon and Navotas,
Province of Rizal, there was a head-on collision between a taxi of the Malate Taxicab driven by Pedro
Fontanilla and a carretela guided by Pedro Dimapalis. The carretela was overturned, and one of its
passengers, 16-year-old boy Faustino Garcia, suffered injuries from which he died two days later. A
criminal action was filed against Fontanilla in the Court of First Instance of Rizal, and he was
convicted and sentenced to an indeterminate sentence of one year and one day to two years of prision
correccional. The court in the criminal case granted the petition that the right to bring a separate civil
action be reserved. The Court of Appeals affirmed the sentence of the lower court in the criminal
case. Severino Garcia and Timotea Almario, parents of the deceased on March 7, 1939, brought an
action in the Court of First Instance of Manila against Fausto Barredo as the sole proprietor of the
Malate Taxicab and employer of Pedro Fontanilla. On July 8, 1939, the Court of First Instance of
Manila awarded damages in favor of the plaintiffs for P2,000 plus legal interest from the date of the
complaint. This decision was modified by the Court of Appeals by reducing the damages to P1,000
with legal interest from the time the action was instituted. It is undisputed that Fontanilla 's negligence
was the cause of the mishap, as he was driving on the wrong side of the road, and at high speed. As to
Barredo's responsibility, the Court of Appeals found:
... It is admitted that defendant is Fontanilla's employer. There is proof that he exercised the
diligence of a good father of a family to prevent damage. (See p. 22, appellant's brief.) In
fact it is shown he was careless in employing Fontanilla who had been caught several times
for violation of the Automobile Law and speeding (Exhibit A) — violation which appeared
in the records of the Bureau of Public Works available to be public and to himself.
Therefore, he must indemnify plaintiffs under the provisions of article 1903 of the Civil
Code.
The main theory of the defense is that the liability of Fausto Barredo is governed by the Revised
Penal Code; hence, his liability is only subsidiary, and as there has been no civil action against Pedro
Fontanilla, the person criminally liable, Barredo cannot be held responsible in the case. The
petitioner's brief states on page 10:
... The Court of Appeals holds that the petitioner is being sued for his failure to exercise all
the diligence of a good father of a family in the selection and supervision of Pedro
Fontanilla to prevent damages suffered by the respondents. In other words, The Court of
Appeals insists on applying in the case article 1903 of the Civil Code. Article 1903 of the
Civil Code is found in Chapter II, Title 16, Book IV of the Civil Code. This fact makes said
article to a civil liability arising from a crime as in the case at bar simply because Chapter II
of Title 16 of Book IV of the Civil Code, in the precise words of article 1903 of the Civil
Code itself, is applicable only to "those (obligations) arising from wrongful or negligent
acts or commission not punishable by law.
The gist of the decision of the Court of Appeals is expressed thus:
... We cannot agree to the defendant's contention. The liability sought to be imposed upon
him in this action is not a civil obligation arising from a felony or a misdemeanor (the crime
of Pedro Fontanilla,), but an obligation imposed in article 1903 of the Civil Code by reason
of his negligence in the selection or supervision of his servant or employee.
The pivotal question in this case is whether the plaintiffs may bring this separate civil action against
Fausto Barredo, thus making him primarily and directly, responsible under article 1903 of the Civil
Code as an employer of Pedro Fontanilla. The defendant maintains that Fontanilla's negligence being
punishable by the Penal Code, his (defendant's) liability as an employer is only subsidiary, according
to said Penal code, but Fontanilla has not been sued in a civil action and his property has not been
exhausted. To decide the main issue, we must cut through the tangle that has, in the minds of many
confused and jumbled together delitos and cuasi delitos, or crimes under the Penal Code and fault or
negligence under articles 1902-1910 of the Civil Code. This should be done, because justice may be
lost in a labyrinth, unless principles and remedies are distinctly envisaged. Fortunately, we are aided
in our inquiry by the luminous presentation of the perplexing subject by renown jurists and we are
likewise guided by the decisions of this Court in previous cases as well as by the solemn clarity of the
consideration in several sentences of the Supreme Tribunal of Spain.
Authorities support the proposition that a quasi-delict or "culpa aquiliana " is a separate legal
institution under the Civil Code with a substantivity all its own, and individuality that is entirely apart
and independent from delict or crime. Upon this principle and on the wording and spirit article 1903
of the Civil Code, the primary and direct responsibility of employers may be safely anchored.
The pertinent provisions of the Civil Code and Revised Penal Code are as follows:
CIVIL CODE
ART. 1089 Obligations arise from law, from contracts and quasi-contracts, and from acts
and omissions which are unlawful or in which any kind of fault or negligence intervenes.
xxx xxx xxx
ART. 1092. Civil obligations arising from felonies or misdemeanors shall be governed by
the provisions of the Penal Code.
ART. 1093. Those which are derived from acts or omissions in which fault or negligence,
not punishable by law, intervenes shall be subject to the provisions of Chapter II, Title XVI
of this book.
xxx xxx xxx
ART 1902. Any person who by an act or omission causes damage to another by his fault or
negligence shall be liable for the damage so done.
ART. 1903. The obligation imposed by the next preceding article is enforcible, not only for
personal acts and omissions, but also for those of persons for whom another is responsible.
The father and in, case of his death or incapacity, the mother, are liable for any damages
caused by the minor children who live with them.
Guardians are liable for damages done by minors or incapacitated persons subject to their
authority and living with them.
Owners or directors of an establishment or business are equally liable for any damages
caused by their employees while engaged in the branch of the service in which employed,
or on occasion of the performance of their duties.
The State is subject to the same liability when it acts through a special agent, but not if the
damage shall have been caused by the official upon whom properly devolved the duty of
doing the act performed, in which case the provisions of the next preceding article shall be
applicable.
Finally, teachers or directors of arts trades are liable for any damages caused by their pupils
or apprentices while they are under their custody.
The liability imposed by this article shall cease in case the persons mentioned therein prove
that they are exercised all the diligence of a good father of a family to prevent the damage.
ART. 1904. Any person who pays for damage caused by his employees may recover from
the latter what he may have paid.
REVISED PENAL CODE
ART. 100. Civil liability of a person guilty of felony. — Every person criminally liable for a
felony is also civilly liable.
ART. 101. Rules regarding civil liability in certain cases. — The exemption from criminal
liability established in subdivisions 1, 2, 3, 5, and 6 of article 12 and in subdivision 4 of
article 11 of this Code does not include exemption from civil liability, which shall be
enforced to the following rules:
First. In cases of subdivision, 1, 2 and 3 of article 12 the civil liability for acts committed by
any imbecile or insane person, and by a person under nine years of age, or by one over nine
but under fifteen years of age, who has acted without discernment shall devolve upon those
having such person under their legal authority or control, unless it appears that there was no
fault or negligence on their part.
Should there be no person having such insane, imbecile or minor under his authority, legal
guardianship, or control, or if such person be insolvent, said insane, imbecile, or minor shall
respond with their own property, excepting property exempt from execution, in accordance
with the civil law.
Second. In cases falling within subdivision 4 of article 11, the person for whose benefit the
harm has been prevented shall be civilly liable in proportion to the benefit which they may
have received.
The courts shall determine, in their sound discretion, the proportionate amount for which each one
shall be liable.
When the respective shares can not be equitably determined, even approximately, or when the
liability also attaches to the Government, or to the majority of the inhabitants of the town, and, in all
events, whenever the damage has been caused with the consent of the authorities or their agents,
indemnification shall be made in the manner prescribed by special laws or regulations.
Third. In cases falling within subdivisions 5 and 6 of article 12, the persons using violence or causing
the fear shall be primarily liable and secondarily, or, if there be no such persons, those doing the act
shall be liable, saving always to the latter that part of their property exempt from execution.
ART. 102. Subsidiary civil liability of innkeepers, tavern keepers and proprietors of
establishment. — In default of persons criminally liable, innkeepers, tavern keepers, and
any other persons or corporation shall be civilly liable for crimes committed in their
establishments, in all cases where a violation of municipal ordinances or some general or
special police regulation shall have been committed by them or their employees.
Innkeepers are also subsidiarily liable for the restitution of goods taken by robbery or theft
within their houses lodging therein, or the person, or for the payment of the value thereof,
provided that such guests shall have notified in advance the innkeeper himself, or the person
representing him, of the deposit of such goods within the inn; and shall furthermore have
followed the directions which such innkeeper or his representative may have given them
with respect to the care of and vigilance over such goods. No liability shall attach in case of
robbery with violence against or intimidation against or intimidation of persons unless
committed by the innkeeper's employees.
ART. 103. Subsidiary civil liability of other persons. — The subsidiary liability established
in the next preceding article shall also apply to employers, teachers, persons, and
corporations engaged in any kind of industry for felonies committed by their servants,
pupils, workmen, apprentices, or employees in the discharge of their duties.
xxx xxx xxx
ART. 365. Imprudence and negligence. — Any person who, by reckless imprudence, shall
commit any act which, had it been intentional, would constitute a grave felony, shall suffer
the penalty of arresto mayor in its maximum period to prision correccional in its minimum
period; if it would have constituted a less grave felony, the penalty of arresto mayor in its
minimum and medium periods shall be imposed.
Any person who, by simple imprudence or negligence, shall commit an act which would
otherwise constitute a grave felony, shall suffer the penalty of arresto mayor in its medium
and maximum periods; if it would have constituted a less serious felony, the penalty
of arresto mayor in its minimum period shall be imposed."
It will thus be seen that while the terms of articles 1902 of the Civil Code seem to be broad enough to
cover the driver's negligence in the instant case, nevertheless article 1093 limits cuasi-delitos to acts
or omissions "not punishable by law." But inasmuch as article 365 of the Revised Penal Code
punishes not only reckless but even simple imprudence or negligence, the fault or negligence under
article 1902 of the Civil Code has apparently been crowded out. It is this overlapping that makes the
"confusion worse confounded." However, a closer study shows that such a concurrence of scope in
regard to negligent acts does not destroy the distinction between the civil liability arising from a crime
and the responsibility for cuasi-delitos or culpa extra-contractual. The same negligent act causing
damages may produce civil liability arising from a crime under article 100 of the Revised Penal Code,
or create an action for cuasi-delito or culpa 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.
G.R. No. L-24803 May 26, 1977
PEDRO ELCANO and PATRICIA ELCANO, in their capacity as Ascendants of Agapito
Elcano, deceased, plaintiffs-appellants,
vs.
REGINALD HILL, minor, and MARVIN HILL, as father and Natural Guardian of said
minor, defendants-appellees.
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 conviction, he could have been sued for this civil liability arising from his crime.
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
(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.
G.R. No. L-33171 May 31, 1979
PORFIRIO P. CINCO, petitioner-appellant,
vs.
HON. MATEO CANONOY, Presiding Judge of the Third Branch of the Court of First Instance
of Cebu, HON. LORENZO B. BARRIA City Judge of Mandaue City, Second Branch ROMEO
HILOT, VALERIANA PEPITO and CARLOS PEPITO, respondents-appellees.
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.
_________________________________________________________________________________
G.R. No. 97336 February 19, 1993
GASHEM SHOOKAT BAKSH, petitioner,
vs.
HON. COURT OF APPEALS and MARILOU T. GONZALES, respondents.
This is an appeal by certiorari under Rule 45 of the Rules of Court seeking to review and set aside the
Decision1 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 Order4 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.
G.R. No. 108017 April 3, 1995
MARIA BENITA A. DULAY, in her own behalf and in behalf of the minor children
KRIZTEEN ELIZABETH, BEVERLY MARIE and NAPOLEON II, all surnamed
DULAY, petitioners,
vs.
THE COURT OF APPEALS, Former Eighth Division, HON. TEODORO P. REGINO, in his
capacity as Presiding Judge of the Regional Trial Court National Capital Region, Quezon City,
Br. 84, SAFEGUARD INVESTIGATION AND SECURITY CO., INC., and SUPERGUARD
SECURITY CORPORATION, respondents.
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.
xxx xxx xxx
(Emphasis supplied)
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.
G.R. No. L-35095 August 31, 1973
GERMAN C. GARCIA, LUMINOSA L. GARCIA, and ESTER FRANCISCO, petitioners,
vs.
THE HONORABLE MARIANO M. FLORIDO OF THE COURT OF FIRST INSTANCE OF
MISAMIS OCCIDENTAL, MARCELINO INESIN, RICARDO VAYSON, MACTAN
TRANSIT CO., INC., and PEDRO TUMALA Y DIGAL, respondents.
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.
_________________________________________________________________________________
G.R. No. 74761 November 6, 1990
NATIVIDAD V. ANDAMO and EMMANUEL R. ANDAMO, petitioners,
vs.
INTERMEDIATE APPELLATE COURT (First Civil Cases Division) and MISSIONARIES OF
OUR LADY OF LA SALETTE, INC., respondents.
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.
________________________________________________________________________________
G.R. No. L-4977 March 22, 1910
DAVID TAYLOR, plaintiff-appellee,
vs.
THE MANILA ELECTRIC RAILROAD AND LIGHT COMPANY, defendant-appellant.
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.
G.R. No. L-50959 July 23, 1980
HEIRS OF PEDRO TAYAG, SR., petitioners,
vs.
HONORABLE FERNANDO S. ALCANTARA, PHILIPPINE RABBIT BUS LINES, INC. and
ROMEO VILLA Y CUNANAN, respondents.
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.