G.R. No.
L-48006 July 8, 1942
FAUSTO BARREDO, petitioner, vs. SEVERINO GARCIA and
TIMOTEA ALMARIO, respondents.
BOCOBO, J.:
This case comes up from the Court of Appeals which held the
petitioner herein, Fausto Barredo, liable in damages for the death
of Faustino Garcia caused by the negligence of Pedro Fontanilla, a
taxi driver employed by said Fausto Barredo.
At about half past one in the morning of May 3, 1936, on the road
between Malabon and Navotas, Province of Rizal, there was a
head-on collision between a taxi of the Malate Taxicab driven
by Pedro Fontanilla and a carretela guided by Pedro Dimapalis.
The carretela was overturned, and one of its passengers, 16-
year-old boy Faustino Garcia, suffered injuries from which he
died two days later. A criminal action was filed against Fontanilla
in the Court of First Instance of Rizal, and he was convicted and
sentenced to an indeterminate sentence of one year and one day
to two years of prision correccional. The court in the criminal case
granted the petition that the right to bring a separate civil
action be reserved. The Court of Appeals affirmed the sentence of
the lower court in the criminal case. Severino Garcia and Timotea
Almario, parents of the deceased on March 7, 1939, brought an
action in the Court of First Instance of Manila against Fausto
Barredo as the sole proprietor of the Malate Taxicab and
employer of Pedro Fontanilla. On July 8, 1939, the Court of First
Instance of Manila awarded damages in favor of the plaintiffs for
P2,000 plus legal interest from the date of the complaint. This
decision was modified by the Court of Appeals by reducing the
damages to P1,000 with legal interest from the time the action was
instituted. It is undisputed that Fontanilla 's negligence was the
cause of the mishap, as he was driving on the wrong side of the
road, and at high speed. As to Barredo's responsibility, the Court
of Appeals found:
... It is admitted that defendant is Fontanilla's employer. There is
proof that he exercised the diligence of a good father of a family
to prevent damage. (See p. 22, appellant's brief.) In fact it is shown
he was careless in employing Fontanilla who had been caught
several times for violation of the Automobile Law and speeding
(Exhibit A) — violation which appeared in the records of the Bureau
of Public Works available to be public and to himself. Therefore, he
must indemnify plaintiffs under the provisions of article 1903 of the
Civil Code.
The main theory of the defense is that the liability of Fausto Barredo
is governed by the Revised Penal Code; hence, his liability is only
subsidiary, and as there has been no civil action against Pedro
Fontanilla, the person criminally liable, Barredo cannot be held
responsible in the case. The petitioner's brief states on page 10:
... The Court of Appeals holds that the petitioner is being sued for
his failure to exercise all the diligence of a good father of a family
in the selection and supervision of Pedro Fontanilla to prevent
damages suffered by the respondents. In other words, The Court of
Appeals insists on applying in the case article 1903 of the Civil
Code. Article 1903 of the Civil Code is found in Chapter II, Title 16,
Book IV of the Civil Code. This fact makes said article to a civil
liability arising from a crime as in the case at bar simply because
Chapter II of Title 16 of Book IV of the Civil Code, in the precise
words of article 1903 of the Civil Code itself, is applicable only to
"those (obligations) arising from wrongful or negligent acts or
commission not punishable by law.
The gist of the decision of the Court of Appeals is expressed thus:
... We cannot agree to the defendant's contention. The liability
sought to be imposed upon him in this action is not a civil
obligation arising from a felony or a misdemeanor (the crime of
Pedro Fontanilla,), but an obligation imposed in article 1903 of the
Civil Code by reason of his negligence in the selection or
supervision of his servant or employee.
The pivotal question in this case is whether the plaintiffs may
bring this separate civil action against Fausto Barredo, thus
making him primarily and directly, responsible under article
1903 of the Civil Code as an employer of Pedro Fontanilla. The
defendant maintains that Fontanilla's negligence being punishable
by the Penal Code, his (defendant's) liability as an employer is only
subsidiary, according to said Penal code, but Fontanilla has not
been sued in a civil action and his property has not been exhausted.
To decide the main issue, we must cut through the tangle that has,
in the minds of many confused and jumbled together delitos and
cuasi delitos, or crimes under the Penal Code and fault or
negligence under articles 1902-1910 of the Civil Code. This should
be done, because justice may be lost in a labyrinth, unless principles
and remedies are distinctly envisaged. Fortunately, we are aided in
our inquiry by the luminous presentation of the perplexing subject
by renown jurists and we are likewise guided by the decisions of
this Court in previous cases as well as by the solemn clarity of the
consideration in several sentences of the Supreme Tribunal of
Spain.
Authorities support the proposition that a quasi-delict or "culpa
aquiliana " is a separate legal institution under the Civil Code with
a substantivity all its own, and individuality that is entirely apart and
independent from delict or crime. Upon this principle and on the
wording and spirit article 1903 of the Civil Code, the primary and
direct responsibility of employers may be safely anchored.
The pertinent provisions of the Civil Code and Revised Penal Code
are as follows:

CIVIL CODE
ART. 1089 Obligations arise from law, from contracts and quasi-
contracts, and from acts and omissions which are unlawful or in
which any kind of fault or negligence intervenes.
xxx xxx xxx
ART. 1092. Civil obligations arising from felonies or misdemeanors
shall be governed by the provisions of the Penal Code.
ART. 1093. Those which are derived from acts or omissions in which
fault or negligence, not punishable by law, intervenes shall be
subject to the provisions of Chapter II, Title XVI of this book.
xxx xxx xxx
ART 1902. Any person who by an act or omission causes damage
to another by his fault or negligence shall be liable for the damage
so done.
ART. 1903. The obligation imposed by the next preceding article is
enforcible, not only for personal acts and omissions, but also for
those of persons for whom another is responsible.
The father and in, case of his death or incapacity, the mother, are
liable for any damages caused by the minor children who live with
them.
Guardians are liable for damages done by minors or incapacitated
persons subject to their authority and living with them.
Owners or directors of an establishment or business are equally
liable for any damages caused by their employees while engaged
in the branch of the service in which employed, or on occasion of
the performance of their duties.
The State is subject to the same liability when it acts through a
special agent, but not if the damage shall have been caused by the
official upon whom properly devolved the duty of doing the act
performed, in which case the provisions of the next preceding
article shall be applicable.
Finally, teachers or directors of arts trades are liable for any
damages caused by their pupils or apprentices while they are under
their custody.
The liability imposed by this article shall cease in case the persons
mentioned therein prove that they are exercised all the diligence of
a good father of a family to prevent the damage.
ART. 1904. Any person who pays for damage caused by his
employees may recover from the latter what he may have paid.
REVISED PENAL CODE
ART. 100. Civil liability of a person guilty of felony. — Every person
criminally liable for a felony is also civilly liable.
ART. 101. Rules regarding civil liability in certain cases. — The
exemption from criminal liability established in subdivisions 1, 2, 3,
5, and 6 of article 12 and in subdivision 4 of article 11 of this Code
does not include exemption from civil liability, which shall be
enforced to the following rules:
First. In cases of subdivision, 1, 2 and 3 of article 12 the civil liability
for acts committed by any imbecile or insane person, and by a
person under nine years of age, or by one over nine but under
fifteen years of age, who has acted without discernment shall
devolve upon those having such person under their legal authority
or control, unless it appears that there was no fault or negligence
on their part.
Should there be no person having such insane, imbecile or minor
under his authority, legal guardianship, or control, or if such person
be insolvent, said insane, imbecile, or minor shall respond with their
own property, excepting property exempt from execution, in
accordance with the civil law.
Second. In cases falling within subdivision 4 of article 11, the person
for whose benefit the harm has been prevented shall be civilly liable
in proportion to the benefit which they may have received.
The courts shall determine, in their sound discretion, the
proportionate amount for which each one shall be liable.
When the respective shares can not be equitably determined, even
approximately, or when the liability also attaches to the
Government, or to the majority of the inhabitants of the town, and,
in all events, whenever the damage has been caused with the
consent of the authorities or their agents, indemnification shall be
made in the manner prescribed by special laws or regulations.
Third. In cases falling within subdivisions 5 and 6 of article 12, the
persons using violence or causing the fear shall be primarily liable
and secondarily, or, if there be no such persons, those doing the
act shall be liable, saving always to the latter that part of their
property exempt from execution.
ART. 102. Subsidiary civil liability of innkeepers, tavern keepers and
proprietors of establishment. — In default of persons criminally
liable, innkeepers, tavern keepers, and any other persons or
corporation shall be civilly liable for crimes committed in their
establishments, in all cases where a violation of municipal
ordinances or some general or special police regulation shall have
been committed by them or their employees.
Innkeepers are also subsidiarily liable for the restitution of goods
taken by robbery or theft within their houses lodging therein, or
the person, or for the payment of the value thereof, provided that
such guests shall have notified in advance the innkeeper himself,
or the person representing him, of the deposit of such goods within
the inn; and shall furthermore have followed the directions which
such innkeeper or his representative may have given them with
respect to the care of and vigilance over such goods. No liability
shall attach in case of robbery with violence against or intimidation
against or intimidation of persons unless committed by the
innkeeper's employees.
ART. 103. Subsidiary civil liability of other persons. — The subsidiary
liability established in the next preceding article shall also apply to
employers, teachers, persons, and corporations engaged in any kind
of industry for felonies committed by their servants, pupils,
workmen, apprentices, or employees in the discharge of their
duties.
xxx xxx xxx
ART. 365. Imprudence and negligence. — Any person who, by
reckless imprudence, shall commit any act which, had it been
intentional, would constitute a grave felony, shall suffer the penalty
of arresto mayor in its maximum period to prision correccional in
its minimum period; if it would have constituted a less grave felony,
the penalty of arresto mayor in its minimum and medium periods
shall be imposed.
Any person who, by simple imprudence or negligence, shall commit
an act which would otherwise constitute a grave felony, shall suffer
the penalty of arresto mayor in its medium and maximum periods;
if it would have constituted a less serious felony, the penalty of
arresto mayor in its minimum period shall be imposed."
It will thus be seen that while the terms of articles 1902 of the Civil
Code seem to be broad enough to cover the driver's negligence in
the instant case, nevertheless article 1093 limits cuasi-delitos to acts
or omissions "not punishable by law." But inasmuch as article 365
of the Revised Penal Code punishes not only reckless but even
simple imprudence or negligence, the fault or negligence under
article 1902 of the Civil Code has apparently been crowded out. It
is this overlapping that makes the "confusion worse confounded."
However, a closer study shows that such a concurrence of scope in
regard to negligent acts does not destroy the distinction between
the civil liability arising from a crime and the responsibility for cuasi-
delitos or culpa extra-contractual. The same negligent act causing
damages may produce civil liability arising from a crime under
article 100 of the Revised Penal Code, or create an action for cuasi-
delito or culpa 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):
SPANISH TEXT DELETED
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:
SPANISH TEXT DELETED
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.
SPANISH TEXT DELETED
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:
SPANISH TEXT DELETED
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:
SPANISH TEXT DELETED
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 of 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 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 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-14414 April 27, 1960
SEVERINO SALEN and ELENA SALBANERA, plaintiffs-appellants,
vs. JOSE BALCE, defendant-appellee.
BAUTISTA ANGELO, J.:
On February 5, 1957, plaintiffs brought this action against
defendant before the Court of First Instance of Camarines Norte to
recover the sum of P2,000.00, with legal interest thereon from July
18, 1952, plus attorney' fees and other incidental expenses.
Defendant, in his answer, set up the defense that the law upon
which plaintiffs predicate their right to recover does not here apply
for the reason that law refers to quasi-delicts and not to criminal
cases.
After trial, the court sustained the theory of defendant and
dismissed the complaint with costs. Hence, the present appeal.
Plaintiffs are the legitimate parents of Carlos Salen who died
single from wounds caused by Gumersindo Balce, a legitimate
son of defendant. At the time, Gumersindo Balce was also
Single, a minor below 18 years of age, and was living with
defendant. As a result of Carlos Salen's death, Gumersindo Balce
accused and convicted of homicide and was sentenced to
imprisonment and to pay the heirs of the deceased an indemnity
in the amount of P2,000.00. Upon petition of plaintiff, the only
heirs of the deceased, a writ of execution was issued for the
payment of the indemnity but it was returned unsatisfied
because Gumersindo Balce was insolvent and had no property
in his name. Thereupon, plaintiffs demanded upon defendant,
father of Gumersindo, the payment of the indemnity the latter
has failed to pay, but defendant refused, thus causing plaintiffs
to institute the present action.
The question for determination is whether appellee can be held
subsidiary liable to pay the indemnity of P2,000.00 which his
son was sentenced to pay in the criminal case filed against him.
In holding that the civil liability of the son of appellee arises from
his criminal liability and, therefore, the subsidiary liability of
appellee must be determined under the provisions of the Revised
Penal Code, and not under Article 2180 of the new Civil Code which
only applies to obligations which arise from quasi-delicts, the trial
court made the following observation:
The law provides that a person criminally liable for a felony is also
civilly liable (Art. 100 of the Revised Penal Code). But there is no
law which holds the father either primarily or subsidiarily liable for
the civil liability incurred by the son who is a minor of 8 years.
Under Art. 101 of the Penal Code, the father is civilly liable for the
acts committed by his son if the latter is an imbecile, or insane, or
under 9 years of age or over 9 but under 15, who has acted without
discernment. Under Art. 102, only in keepers and tavern-keepers
are held subsidiarily liable and under Art. 103 of the same Penal
Code, the subsidiary liability established in Art. 102 shall apply only
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." By the principle of exclusio unus exclusio ulterius, the
defendant in this case cannot be held subsidiary liable for the civil
liability of Gumersindo Balce who has been convicted of homicide
for the killing of the plaintiff's son Carlos Salen.
Art. 2180 of the Civil Code, relied by the plaintiff's, is not applicable
to the case at bar. It applies to obligations which arise from quasi-
delicts and not obligations which arise from criminal offenses. Civil
liability arising from criminal negligence or offenses is governed by
the provisions of the Penal Code and civil liability arising from civil
negligence is governed by the provision of the Civil Code. The
obligation imposed by Art. 2176 of the New Civil Code expressly
refers to obligations which arise from quasi-delicts. And obligations
arising from quasi-delict (Commissioner's note). And according to
Art. 2177, the 'responsibility for fault of negligence under Art. 2176
is entirely separate and distinct from the civil liabilty arising from
negligence under the Penal Code. . . .
While we agree with the theory that, as a rule, the civil liability
arising from a crime shall be governed by the provisions of the
Revised Penal Code, we disagree with the contention that the
subsidiary liability of persons for acts of those who are under their
custody should likewise be governed by the same Code even in the
absence of any provision governing the case, for that would leave
the transgression of certain right without any punishment or
sanction in the law. Such would be the case if we would uphold the
theory of appellee as sustained by the trial court.
It is true that under Article 101 of the Revised Penal Code, a father
is made civilly liable for the acts committed by his son only if the
latter is an imbecile, an insane, under 9 years of age, over 9 but
under 15 years of age, who act without discernment, unless it
appears that there is no fault or negligence on his part. This is
because a son who commits the act under any of those conditions
is by law exempt from criminal liability (Article 12, subdivisions 1, 2
and 3, Revised Penal Code). The idea is not to leave the act entirely
unpunished but to attach certain civil liability to the person who
has the deliquent minor under his legal authority or control. But a
minor over 15 who acts with discernment is not exempt from
criminal liability, for which reason the Code is silent as to the
subsidiary liability of his parents should he stand convicted. In that
case, resort should be had to the general law which is our Civil
Code.
The particular law that governs this case is Article 2180, the
pertinent portion of which provides: "The father and, in case of his
death or incapacity, the mother, are responsible for damages
caused by the minor children who lived in their company." To hold
that this provision does not apply to the instant case because it
only covers obligations which arise from quasi-delicts and not
obligations which arise from criminal offenses, would result in
the absurdity that while for an act where mere negligence
intervenes the father or mother may stand subsidiarily liable for
the damage caused by his or her son, no liability would attach
if the damage is caused with criminal intent. Verily, the void that
apparently exists in the Revised Penal Code is subserved by this
particular provision of our Civil Code, as may be gleaned from some
recent decisions of this Court which cover equal or identical cases.
A case in point is Exconde vs. Capuno, 101 Phil., 843, the facts of
which are as follows:
Dante Capuno, a minor of 15 years of age, lives in the company of
his father, Delfin Capuno. He is a student of the Balintawak
Elementary School in the City of San Pablo and a member of the
Boy Scout Organization of his school. On Marcy 31, 1949, on the
occasion of a certain parade in honor of Dr. Jose Rizal in the City
of San Pablo, Dante Capuno was one of those instructed by the
City School Supervisor to join the parade. From the school, Dante
Capuno, together with other students, boarded a jeep. When the
jeep started to run, Dante Capuno took hold of the wheel and drove
it while the driver sat on his left side. They have not gone far when
the jeep turned turtle and two of its passengers, Amando Ticson
and Isidro Caperina died as a consequence. The corresponding
criminal action for double homicide through reckless imprudence
was instituted against Dante Capuno. During the trial, Sabina
Exconde, as mother of the deceased Isidro Caperina, reserved her
right to bring a separate civil action for damages against the
accused. Dante Capuno was found guilty of the criminal offense
charged against him. In line with said reservation of Sabina
Exconde, the corresponding civil action for damages was filed
against Delfin Capuno, Dante Capuno and others.
In holding Delfin Capuno jointly and severally liable with his minor
son Dante Capuno arising from the criminal act committed by the
latter, this Court made the following ruling:
The civil liability which the law imposes upon the father and, in case
of his death or incapacity, the mother, for any damages that may
be caused by the minor children who live with them, is obvious.
This is a necessary consequence of the parental authority they
exercise over them which imposes upon the parents the "duty of
supporting them, keeping them in their company, educating them
in proportion to their means", while, on the other hand, gives them
the "right to correct and punish them in moderation" (Arts. 134 and
135, Spanish Civil Code). The only way by which they can relieved
themselves of this liability is if they prove that they exercised all the
diligence of a good father of a family to prevent the damage (Art.
1903, last paragraph, Spanish Civil Code.) This defendants failed to
prove.
Another case in point is Araneta vs. Arreglado 104 Phil., 524; 55 Off.
Gaz. [9] 1961. The facts of this case are as follows:
On March 7, 1951, while plaintiff Benjamin Araneta was talking with
the other students of the Ateneo de Manila while seated atop a
low ruined wall bordering the Ateneo grounds along Dakota Street,
in the City of Manila, Dario Arreglado, a former student of the
Ateneo, chanced to pass by. Those on the wall called Dario and
conversed with him, and in the course of their talk, twitted him on
his leaving the Ateneo and enrolling in the De La Salle College.
Apparently, Arreglado resented the banter and suddenly pulling
from his pocket a Japanese Luger pistol (licensed in the name of
his father Juan Arreglado), fired the same at Araneta, hitting him in
the lower jaw, causing him to drop backward, bleeding profusely.
Helped by his friends, the injured lad was taken first to the school
infirmary and later to the Singian Hospital, where he lay hovering
between life and death for three days. The vigor of youth came to
his rescue; he rallied and after sometime finally recovered, the
gunshot would left him with a degenerative injury to the jawbone
(mandible) and a scar in the lower portion of the face, where the
bullet had plowed through. The behavior of Benjamin was likewise
affected, he becoming inhibited and morose after leaving the
hospital.
Dario Arreglado was indicted for frustrated homicide and pleaded
guilty, but in view of his youth, he being only 14 years of age, the
court suspended the proceedings as prescribed by Article 80 of the
Revised Penal Code. Thereafter, an action was instituted by Araneta
and his father against Juan Arreglado, his wife, and their son Dario,
to recover material, moral and exemplary damages. The court of
first instance, after trial, sentenced the Arreglados to pay P3,943.00
as damages and attorney's fees. From this decision, the Araneta
appealed in view of the meager amount of indemnity awarded. This
Court affirmed the decision but increased the indemnity to
P18,000.00. This is a typical case of parental subsidiary liability
arising from the criminal act of a minor son.
Wherefore, the decision appealed from is reversed. Judgement is
hereby rendered ordering appellee to pay appellants the sum of
P2,000.00, with legal interest thereon from the filing of the
complaint, and the costs.
Paras, C.J., Bengzon, Padilla, Montemayor, Labrador, Concepcion,
Endencia, Barrera and Gutierrez David, JJ., concur.
G.R. No. L-14409 October 31, 1961
AGAPITO FUELLAS, petitioner, vs. ELPIDIO CADANO, ET AL.,
respondents.
PAREDES, J.:
For serious physical injuries sustained by Pepito Cadano, son of
plaintiff-appellee Elpidio Cadano, two separate actions were
instituted, Civil Case No. 583, filed on October 1, 1954, for damages
against Agapito Fuellas, father of the minor Rico Fuellas, who
caused the injuries, and Criminal Case No. 1765, against Rico
Fuellas, filed on November 11, 1954, for serious physical injuries.
They were tried jointly. On May 18, 1956, a judgment of conviction
in the criminal case was rendered, finding Rico Fuellas guilty of
the offense charged. No pronouncement as to his civil liability was
made, the trial judge having ruled that the same "shall be
determined in Civil Case No. 583 of this Court." On May 25, 1956,
the same court, rendered judgment in the civil case making
defendant therein, now appellant Agapito Fuellas, liable under Art.
2180 of the new Civil Code for the following damages: —
For medicine, etc. P1,000.00
For moral damages 6,000.00
As exemplary damages 2,000.00
As attorney's fees 600.00
T o t a l P9,600.00
with 6% annual interest thereon until paid. The Court of Appeals
modified the judgment by reducing the moral damages to
P3,000.00. An appeal was taken to this tribunal solely on questions
of law.
Pepito Cadano and Rico Fuellas, son of defendant-appellant
Agapito Fuellas, were both 13 years old, on September 16, 1954.
They were classmates at St. Mary's High School, Dansalan City. In
the afternoon of September 16, 1954, while Pepito was studying his
lessons in the classroom, Rico took the pencil of one Ernesto
Cabanok and surreptitiously placed it inside the pocket of Pepito.
When Ernesto asked Rico to return the pencil, it was Pepito who
returned the same, an act which angered Rico, who held the neck
of Pepito and pushed him to the floor. Villamira, a teacher,
separated Rico and Pepito and told them to go home. Rico went
ahead, with Pepito following. When Pepito had just gone down of
the schoolhouse, he was met by Rico, still in an angry mood.
Angelito Aba, a classmate, told the two to shake hands. Pepito
extended his hand to Rico. Instead of accepting the proffer to shake
hands, Rico held Pepito by the neck and with his leg, placed Pepito
out of balance and pushed him to the ground. Pepito fell on his
right side with his right arm under his body, whereupon, Rico rode
on his left side. While Rico was in such position, Pepito suddenly
cried out "My arm is broken." Rico then got up and went away.
Pepito was helped by others to go home. That same evening Pepito
was brought to the Lanao General Hospital for treatment (Exh. 4).
An X-Ray taken showed that there was a complete fracture of the
radius and ulna of the right forearm which necessitated plaster
casting (Exhs. A, B and D). On November 20, 1954, more than a
month after Pepito's release from the hospital, the plaster cast was
removed. And up to the last day of hearing of the case, the right
forearm of Pepito was seen to be shorter than the left forearm, still
in bandage and could not be fully used.
It is contended that in the decision of the Court of Appeals, the
petitioner-appellant was ordered to pay damages for the deliberate
injury caused by his son; that the said court held the petitioner
liable pursuant to par. 2 of Art. 2180 of the Civil Code, in connection
with Art. 2176 of the same Code; that according to the last article,
the act of the minor must be one wherein "fault or negligence" is
present; and that there being no fault or negligence on the part of
petitioner-appellant's minor son, but deliberate intent, the above
mentioned articles are not applicable, for the existence of deliberate
intent in the commission of an act negatives the presence of fault
or negligence in its commission. Appellant, therefore, submits that
the appellate Court erred in holding him liable for damages for the
deliberate criminal act of his minor son.
The above-mentioned provisions of the Civil Code states: —
Whoever by act or omission causes damage to another, there being
fault or negligence is obliged to pay for the damage done. Such
fault or negligence, if there is no pre-existing contractual relation
between the parties is called a quasi-delict and is governed by the
provisions of this chapter. (Article 2176)
The obligations imposed by article 2176 is demandable not only
for one's own acts or omissions, but also for those of persons for
whom one is responsible.
The father and, in case of his death or incapacity, the mother, are
responsible for the damages caused by the minor children who live
in their company.
xxx xxx xxx (Article 2180).
In the case of Araneta vs. Arreglado, G.R. No. L-11394, prom.
September 9, 1958, Benjamin Araneta was talking with other
students of the Ateneo de Manila, seated atop a low ruined wall.
Dario Arreglado, a former student of the Ateneo, chanced to pass
by. The boys twitted him on his leaving the Ateneo and enrolling
in the De la Salle College. Arreglado, resenting the banter, pulled a
Japanese luger pistol (licensed in the name of his father Juan
Arreglado), fired the same at Araneta, hitting him in the lower jaw.
Dario was indicted for frustrated homicide and pleaded guilty. But
in view of his youth, he being only 14 years of age, the Court
suspended the proceedings (Art. 80 of the Revised Penal Code).
Thereafter, action was instituted by Araneta and his father against
Juan Arreglado, his wife and their son Dario to recover material,
moral and exemplary damages. The Court of First Instance
sentenced the Arreglados to pay P3,943.00 as damages and
attorney's fees. The Aranetas appealed in view of the meager
amount of indemnity awarded. This tribunal affirmed the decision
but increased the indemnity to P18,000.00. This decision was
predicated upon the fact that Arreglado's father had acted
negligently in allowing his son to have access to the pistol used to
injure Benjamin. And this was the logical consequence of the case,
considering the fact that the civil law liability under Article 2180
is not respondeat superior but the relationship of pater familias
which bases the liability of the father ultimately on his own
negligence and not on that of his minor son (Cuison vs. Norton
& Harrison, 55 Phil. 23), and that if an injury is caused by the fault
or negligence of his minor son, the law presumes that there was
negligence on the part of his father (Bahia vs. Litonjua y Leynes,
30 Phil., 625).
In an earlier case (Exconde vs. Capuno, et al., G.R. No. L-10132,
prom. June 29, 1957), holding the defendants jointly and severally
liable with his minor son Dante for damages, arising from the
criminal act committed by the latter, this tribunal gave the following
reasons for the rule: —
The civil liability which the law imposes upon the father and, in case
of his death or incapacity, the mother, for any damages that may
be caused by the minor children who live with them, is obvious.
This is a necessary consequence of the parental authority they
exercise over them which imposes upon the parents the "duty of
supporting them, keeping them in their company, educating them
in proportion to their means", while on the other hand, gives them
the "right to correct and punish them in moderation" (Arts. 134 and
135, Spanish Civil Code). The only way by which they can relieve
themselves of this liability is if they prove that they exercised all the
diligence of a good father of a family to prevent the damage (Art.
1903, last paragraph, Spanish Civil Code). This, defendants failed to
prove.
And a noted Spanish commentator said: —
Since children and wards do not yet have the capacity to govern
themselves, the law imposes upon the parents and guardians the
duty of exercising special vigilance over the acts of their children
and wards in order that damages to third persons due to the
ignorance, lack of foresight or discernment of such children and
wards may be avoided. If the parents and guardians fail to comply
with this duty, they should suffer the consequences of their
abandonment or negligence by repairing the damage caused" (12
Manresa, 649-650). (See also Arts. 311 and 316, Civil Code).
It is further argued that the only way by which a father can be made
responsible for the criminal act of his son committed with
deliberate intent and with discernment, is an action based on the
provisions of the Revised Penal Code on subsidiary liability of the
parents; that the minor Fuellas having been convicted of serious
physical injuries at the age of 13, the provisions of par. 3 of Art. 12,
Revised Penal Code, could have been applied, but having acted
with discernment, Art. 101 of the same Code can not include him.
And as par. 2, of Art. 101, states that "the exemption from criminal
liability established in subdivisions 1, 2, 3, 5 and 6 of Article 12 and
in subdivision 4 of Art. 11 of this Code does not include exemption
from civil liability, which shall be enforced subject to the following
rules: First, in cases of subdivisions 1, 2 and 3 of Article 12, the civil
liability for acts committed by an imbecile or insane person and by
a person under nine years of age or by one over nine but under
fifteen years of age, who has acted without discernment, shall
devolve upon those having such person under their legal authority
or control, unless it appears that there was no fault or negligence
on their part," the appellant concluded that this provision covers
only a situation where a minor under 15 but over 9 years old
commits a criminal act "without discernment."
In the recent case of Salen and Salbanera vs. Jose Balce, G.R. No.
L-14414, April 27, 1960; 57 Off. Gaz. No. 37, p. 6603, September 11,
1961, the defendant Balce was the father of a minor Gumersindo
Balce, below 18 years of age who was living with him. Gumersindo
was found guilty of homicide for having killed Carlos Salen, minor
son of plaintiffs. The trial court rendered judgment dismissing the
case, stating that the civil liability of the minor son of defendant
arising from his criminal liability must be determined under the
provisions of the Revised Penal Code and not under Art. 2180 of
the new Civil Code. In reversing the decision, this tribunal held: —
only covers obligations which arise from quasi-delicts and not
obligations which arise from criminal offenses, would result in the
absurdity that while for an act where mere negligence intervenes
the father or mother may stand subsidiarily liable for the damage
caused by his or her son, no liability would attach if the damage is
caused with criminal intent. Verily, the void apparently exists in the
Revised Penal Code is subserved by this particular provision of our
Civil Code, as may be gleaned from some recent decisions of this
Court which cover equal or identical cases.
Moreover, the case at bar was decided by the Court of Appeals on
the basis of the evidence submitted therein by both parties,
independently of the criminal case. And responsibility for fault or
negligence under Article 2176 upon which the action in the
present case was instituted, is entirely separate and distinct
from the civil liability arising from fault of negligence under the
Penal Code (Art. 2177), and having in mind the reasons behind
the law as heretofore stated, any discussion as to the minor's
criminal responsibility is of no moment.
IN VIEW HEREOF, the petition is dismissed, the decision appealed
from is affirmed, with costs against the petitioner.
Bengzon, C.J., Padilla, Labrador, Concepcion, Reyes, J.B.L., Dizon and
De Leon, JJ., concur.
Bautista and Barrera, JJ., took no part.

It is true that under Art. 101 of the Revised Penal Code, a father is
made civilly liable for the acts committed by his son only if the
latter is an imbecile, an insane, under 9 years of age, or over 9 but
under 15 years of age, who acts without discernment, unless it
appears that there is no fault or negligence on his part. This is
because a son who commits the act under any of those conditions
is by law exempt from criminal liability (Article 12, subdivisions 1, 2
and 3, Revised Penal Code). The idea is not to leave the act entirely
unpunished but to attach certain civil liability to the person who
has the delinquent minor under his legal authority or control. But
a minor over 15 who acts with discernment is not exempt from
criminal liability, for which reason the Code is silent as to the
subsidiary liability of his parents should he stand convicted. In that
case, resort should be had to the general law which is our Civil
Code.

The particular law that governs this case is Article 2180, the
pertinent portion of which provides: "The father and, in case of his
death or incapacity, the mother, are responsible for damages
caused by the minor children who live in their company." To hold
that this provision does not apply to the instant case because it
G.R. No. L-21438 September 28, 1966
AIR FRANCE, petitioner, vs. RAFAEL CARRASCOSO and the
HONORABLE COURT OF APPEALS, respondents.
SANCHEZ, J.:
The Court of First Instance of Manila 1 sentenced petitioner to pay
respondent Rafael Carrascoso P25,000.00 by way of moral damages;
P10,000.00 as exemplary damages; P393.20 representing the
difference in fare between first class and tourist class for the portion
of the trip Bangkok-Rome, these various amounts with interest at
the legal rate, from the date of the filing of the complaint until
paid; plus P3,000.00 for attorneys' fees; and the costs of suit.
On appeal,2 the Court of Appeals slightly reduced the amount of
refund on Carrascoso's plane ticket from P393.20 to P383.10, and
voted to affirm the appealed decision "in all other respects", with
costs against petitioner.
The case is now before us for review on certiorari.
The facts declared by the Court of Appeals as " fully supported by
the evidence of record", are:
Plaintiff, a civil engineer, was a member of a group of 48 Filipino
pilgrims that left Manila for Lourdes on March 30, 1958.
On March 28, 1958, the defendant, Air France, through its
authorized agent, Philippine Air Lines, Inc., issued to plaintiff a "first
class" round trip airplane ticket from Manila to Rome. From Manila
to Bangkok, plaintiff travelled in "first class", but at Bangkok, the
Manager of the defendant airline forced plaintiff to vacate the "first
class" seat that he was occupying because, in the words of the
witness Ernesto G. Cuento, there was a "white man", who, the
Manager alleged, had a "better right" to the seat. When asked to
vacate his "first class" seat, the plaintiff, as was to be expected,
refused, and told defendant's Manager that his seat would be taken
over his dead body; a commotion ensued, and, according to said
Ernesto G. Cuento, "many of the Filipino passengers got nervous in
the tourist class; when they found out that Mr. Carrascoso was
having a hot discussion with the white man [manager], they came
all across to Mr. Carrascoso and pacified Mr. Carrascoso to give his
seat to the white man" (Transcript, p. 12, Hearing of May 26, 1959);
and plaintiff reluctantly gave his "first class" seat in the plane.3
1. The trust of the relief petitioner now seeks is that we review "all
the findings" 4 of respondent Court of Appeals. Petitioner charges
that respondent court failed to make complete findings of fact on
all the issues properly laid before it. We are asked to consider facts
favorable to petitioner, and then, to overturn the appellate court's
decision.
Coming into focus is the constitutional mandate that "No decision
shall be rendered by any court of record without expressing therein
clearly and distinctly the facts and the law on which it is based". 5
This is echoed in the statutory demand that a judgment
determining the merits of the case shall state "clearly and distinctly
the facts and the law on which it is based"; 6 and that "Every
decision of the Court of Appeals shall contain complete findings of
fact on all issues properly raised before it". 7
A decision with absolutely nothing to support it is a nullity. It is
open to direct attack. 8 The law, however, solely insists that a
decision state the "essential ultimate facts" upon which the court's
conclusion is drawn. 9 A court of justice is not hidebound to write
in its decision every bit and piece of evidence 10 presented by one
party and the other upon the issues raised. Neither is it to be
burdened with the obligation "to specify in the sentence the facts"
which a party "considered as proved". 11 This is but a part of the
mental process from which the Court draws the essential ultimate
facts. A decision is not to be so clogged with details such that
prolixity, if not confusion, may result. So long as the decision of the
Court of Appeals contains the necessary facts to warrant its
conclusions, it is no error for said court to withhold therefrom "any
specific finding of facts with respect to the evidence for the
defense". Because as this Court well observed, "There is no law that
so requires". 12 Indeed, "the mere failure to specify (in the decision)
the contentions of the appellant and the reasons for refusing to
believe them is not sufficient to hold the same contrary to the
requirements of the provisions of law and the Constitution". It is in
this setting that in Manigque, it was held that the mere fact that
the findings "were based entirely on the evidence for the
prosecution without taking into consideration or even mentioning
the appellant's side in the controversy as shown by his own
testimony", would not vitiate the judgment. 13 If the court did not
recite in the decision the testimony of each witness for, or each
item of evidence presented by, the defeated party, it does not mean
that the court has overlooked such testimony or such item of
evidence. 14 At any rate, the legal presumptions are that official
duty has been regularly performed, and that all the matters within
an issue in a case were laid before the court and passed upon by
it. 15
Findings of fact, which the Court of Appeals is required to make,
maybe defined as "the written statement of the ultimate facts as
found by the court ... and essential to support the decision and
judgment rendered thereon". 16 They consist of the court's
"conclusions" with respect to the determinative facts in issue". 17 A
question of law, upon the other hand, has been declared as "one
which does not call for an examination of the probative value of
the evidence presented by the parties." 18
2. By statute, "only questions of law may be raised" in an appeal by
certiorari from a judgment of the Court of Appeals. 19 That
judgment is conclusive as to the facts. It is not appropriately the
business of this Court to alter the facts or to review the questions
of fact. 20
With these guideposts, we now face the problem of whether the
findings of fact of the Court of Appeals support its judgment.
3. Was Carrascoso entitled to the first class seat he claims?
It is conceded in all quarters that on March 28, 1958 he paid to
and received from petitioner a first class ticket. But petitioner
asserts that said ticket did not represent the true and complete
intent and agreement of the parties; that said respondent knew that
he did not have confirmed reservations for first class on any specific
flight, although he had tourist class protection; that, accordingly,
the issuance of a first class ticket was no guarantee that he would
have a first class ride, but that such would depend upon the
availability of first class seats.
These are matters which petitioner has thoroughly presented and
discussed in its brief before the Court of Appeals under its third
assignment of error, which reads: "The trial court erred in finding
that plaintiff had confirmed reservations for, and a right to, first
class seats on the "definite" segments of his journey, particularly
that from Saigon to Beirut". 21
And, the Court of Appeals disposed of this contention thus:
Defendant seems to capitalize on the argument that the issuance
of a first-class ticket was no guarantee that the passenger to whom
the same had been issued, would be accommodated in the first-
class compartment, for as in the case of plaintiff he had yet to make
arrangements upon arrival at every station for the necessary first-
class reservation. We are not impressed by such a reasoning. We
cannot understand how a reputable firm like defendant airplane
company could have the indiscretion to give out tickets it never
meant to honor at all. It received the corresponding amount in
payment of first-class tickets and yet it allowed the passenger to
be at the mercy of its employees. It is more in keeping with the
ordinary course of business that the company should know whether
or riot the tickets it issues are to be honored or not.22
Not that the Court of Appeals is alone. The trial court similarly
disposed of petitioner's contention, thus:
On the fact that plaintiff paid for, and was issued a "First class"
ticket, there can be no question. Apart from his testimony, see
plaintiff's Exhibits "A", "A-1", "B", "B-1," "B-2", "C" and "C-1", and
defendant's own witness, Rafael Altonaga, confirmed plaintiff's
testimony and testified as follows:
Q. In these tickets there are marks "O.K." From what you know,
what does this OK mean?
A. That the space is confirmed.
Q. Confirmed for first class?
A. Yes, "first class". (Transcript, p. 169)
xxx xxx xxx
Defendant tried to prove by the testimony of its witnesses Luis
Zaldariaga and Rafael Altonaga that although plaintiff paid for, and
was issued a "first class" airplane ticket, the ticket was subject to
confirmation in Hongkong. The court cannot give credit to the
testimony of said witnesses. Oral evidence cannot prevail over
written evidence, and plaintiff's Exhibits "A", "A-l", "B", "B-l", "C" and
"C-1" belie the testimony of said witnesses, and clearly show that
the plaintiff was issued, and paid for, a first class ticket without any
reservation whatever.
Furthermore, as hereinabove shown, defendant's own witness
Rafael Altonaga testified that the reservation for a "first class"
accommodation for the plaintiff was confirmed. The court cannot
believe that after such confirmation defendant had a verbal
understanding with plaintiff that the "first class" ticket issued to him
by defendant would be subject to confirmation in Hongkong. 23
We have heretofore adverted to the fact that except for a slight
difference of a few pesos in the amount refunded on Carrascoso's
ticket, the decision of the Court of First Instance was affirmed by
the Court of Appeals in all other respects. We hold the view that
such a judgment of affirmance has merged the judgment of the
lower court. 24 Implicit in that affirmance is a determination by the
Court of Appeals that the proceeding in the Court of First Instance
was free from prejudicial error and "all questions raised by the
assignments of error and all questions that might have been raised
are to be regarded as finally adjudicated against the appellant". So
also, the judgment affirmed "must be regarded as free from all
error". 25 We reached this policy construction because nothing in
the decision of the Court of Appeals on this point would suggest
that its findings of fact are in any way at war with those of the trial
court. Nor was said affirmance by the Court of Appeals upon a
ground or grounds different from those which were made the basis
of the conclusions of the trial court. 26
If, as petitioner underscores, a first-class-ticket holder is not
entitled to a first class seat, notwithstanding the fact that seat
availability in specific flights is therein confirmed, then an air
passenger is placed in the hollow of the hands of an airline.
What security then can a passenger have? It will always be an
easy matter for an airline aided by its employees, to strike out
the very stipulations in the ticket, and say that there was a
verbal agreement to the contrary. What if the passenger had a
schedule to fulfill? We have long learned that, as a rule, a written
document speaks a uniform language; that spoken word could be
notoriously unreliable. If only to achieve stability in the relations
between passenger and air carrier, adherence to the ticket so issued
is desirable. Such is the case here. The lower courts refused to
believe the oral evidence intended to defeat the covenants in the
ticket.
The foregoing are the considerations which point to the conclusion
that there are facts upon which the Court of Appeals predicated
the finding that respondent Carrascoso had a first class ticket and
was entitled to a first class seat at Bangkok, which is a stopover in
the Saigon to Beirut leg of the flight. 27 We perceive no "welter of
distortions by the Court of Appeals of petitioner's statement of its
position", as charged by petitioner. 28 Nor do we subscribe to
petitioner's accusation that respondent Carrascoso "surreptitiously
took a first class seat to provoke an issue". 29 And this because, as
petitioner states, Carrascoso went to see the Manager at his office
in Bangkok "to confirm my seat and because from Saigon I was
told again to see the Manager". 30 Why, then, was he allowed to
take a first class seat in the plane at Bangkok, if he had no seat?
Or, if another had a better right to the seat?
4. Petitioner assails respondent court's award of moral damages.
Petitioner's trenchant claim is that Carrascoso's action is planted
upon breach of contract; that to authorize an award for moral
damages there must be an averment of fraud or bad faith;31
and that the decision of the Court of Appeals fails to make a finding
of bad faith. The pivotal allegations in the complaint bearing on
this issue are:
3. That ... plaintiff entered into a contract of air carriage with the
Philippine Air Lines for a valuable consideration, the latter acting as
general agents for and in behalf of the defendant, under which said
contract, plaintiff was entitled to, as defendant agreed to furnish
plaintiff, First Class passage on defendant's plane during the entire
duration of plaintiff's tour of Europe with Hongkong as starting
point up to and until plaintiff's return trip to Manila, ... .
4. That, during the first two legs of the trip from Hongkong to
Saigon and from Saigon to Bangkok, defendant furnished to the
plaintiff First Class accommodation but only after protestations,
arguments and/or insistence were made by the plaintiff with
defendant's employees.
5. That finally, defendant failed to provide First Class passage, but
instead furnished plaintiff only Tourist Class accommodations from
Bangkok to Teheran and/or Casablanca, ... the plaintiff has been
compelled by defendant's employees to leave the First Class
accommodation berths at Bangkok after he was already seated.
6. That consequently, the plaintiff, desiring no repetition of the
inconvenience and embarrassments brought by defendant's breach
of contract was forced to take a Pan American World Airways plane
on his return trip from Madrid to Manila.32
xxx xxx xxx
2. That likewise, as a result of defendant's failure to furnish First
Class accommodations aforesaid, plaintiff suffered inconveniences,
embarrassments, and humiliations, thereby causing plaintiff mental
anguish, serious anxiety, wounded feelings, social humiliation, and
the like injury, resulting in moral damages in the amount of
P30,000.00. 33
xxx xxx xxx
The foregoing, in our opinion, substantially aver: First, That there
was a contract to furnish plaintiff a first class passage covering,
amongst others, the Bangkok-Teheran leg; Second, That said
contract was breached when petitioner failed to furnish first class
transportation at Bangkok; and Third, that there was bad faith when
petitioner's employee compelled Carrascoso to leave his first class
accommodation berth "after he was already, seated" and to take a
seat in the tourist class, by reason of which he suffered
inconvenience, embarrassments and humiliations, thereby causing
him mental anguish, serious anxiety, wounded feelings and social
humiliation, resulting in moral damages. It is true that there is no
specific mention of the term bad faith in the complaint. But, the
inference of bad faith is there, it may be drawn from the facts
and circumstances set forth therein. 34 The contract was averred
to establish the relation between the parties. But the stress of
the action is put on wrongful expulsion.
Quite apart from the foregoing is that (a) right the start of the trial,
respondent's counsel placed petitioner on guard on what
Carrascoso intended to prove: That while sitting in the plane in
Bangkok, Carrascoso was ousted by petitioner's manager who gave
his seat to a white man; 35 and (b) evidence of bad faith in the
fulfillment of the contract was presented without objection on the
part of the petitioner. It is, therefore, unnecessary to inquire as to
whether or not there is sufficient averment in the complaint to
justify an award for moral damages. Deficiency in the complaint, if
any, was cured by the evidence. An amendment thereof to conform
to the evidence is not even required. 36 On the question of bad
faith, the Court of Appeals declared:
That the plaintiff was forced out of his seat in the first class
compartment of the plane belonging to the defendant Air France
while at Bangkok, and was transferred to the tourist class not only
without his consent but against his will, has been sufficiently
established by plaintiff in his testimony before the court,
corroborated by the corresponding entry made by the purser of
the plane in his notebook which notation reads as follows:
"First-class passenger was forced to go to the tourist class against
his will, and that the captain refused to intervene", and by the
testimony of an eye-witness, Ernesto G. Cuento, who was a co-
passenger. The captain of the plane who was asked by the manager
of defendant company at Bangkok to intervene even refused to do
so. It is noteworthy that no one on behalf of defendant ever
contradicted or denied this evidence for the plaintiff. It could have
been easy for defendant to present its manager at Bangkok to
testify at the trial of the case, or yet to secure his disposition; but
defendant did neither. 37
The Court of appeals further stated —
Neither is there evidence as to whether or not a prior reservation
was made by the white man. Hence, if the employees of the
defendant at Bangkok sold a first-class ticket to him when all the
seats had already been taken, surely the plaintiff should not have
been picked out as the one to suffer the consequences and to be
subjected to the humiliation and indignity of being ejected from
his seat in the presence of others. Instead of explaining to the white
man the improvidence committed by defendant's employees, the
manager adopted the more drastic step of ousting the plaintiff who
was then safely ensconsced in his rightful seat. We are strengthened
in our belief that this probably was what happened there, by the
testimony of defendant's witness Rafael Altonaga who, when asked
to explain the meaning of the letters "O.K." appearing on the tickets
of plaintiff, said "that the space is confirmed for first class. Likewise,
Zenaida Faustino, another witness for defendant, who was the chief
of the Reservation Office of defendant, testified as follows:
"Q How does the person in the ticket-issuing office know what
reservation the passenger has arranged with you?
A They call us up by phone and ask for the confirmation." (t.s.n., p.
247, June 19, 1959)
In this connection, we quote with approval what the trial Judge has
said on this point:
Why did the, using the words of witness Ernesto G. Cuento, "white
man" have a "better right" to the seat occupied by Mr. Carrascoso?
The record is silent. The defendant airline did not prove "any
better", nay, any right on the part of the "white man" to the "First
class" seat that the plaintiff was occupying and for which he paid
and was issued a corresponding "first class" ticket.
If there was a justified reason for the action of the defendant's
Manager in Bangkok, the defendant could have easily proven it by
having taken the testimony of the said Manager by deposition, but
defendant did not do so; the presumption is that evidence willfully
suppressed would be adverse if produced [Sec. 69, par (e), Rules of
Court]; and, under the circumstances, the Court is constrained to
find, as it does find, that the Manager of the defendant airline in
Bangkok not merely asked but threatened the plaintiff to throw him
out of the plane if he did not give up his "first class" seat because
the said Manager wanted to accommodate, using the words of the
witness Ernesto G. Cuento, the "white man".38
It is really correct to say that the Court of Appeals in the quoted
portion first transcribed did not use the term "bad faith". But can it
be doubted that the recital of facts therein points to bad faith? The
manager not only prevented Carrascoso from enjoying his right to
a first class seat; worse, he imposed his arbitrary will; he forcibly
ejected him from his seat, made him suffer the humiliation of
having to go to the tourist class compartment - just to give way to
another passenger whose right thereto has not been established.
Certainly, this is bad faith. Unless, of course, bad faith has assumed
a meaning different from what is understood in law. For, "bad faith"
contemplates a "state of mind affirmatively operating with furtive
design or with some motive of self-interest or will or for ulterior
purpose."
And if the foregoing were not yet sufficient, there is the express
finding of bad faith in the judgment of the Court of First Instance,
thus:
The evidence shows that the defendant violated its contract of
transportation with plaintiff in bad faith, with the aggravating
circumstances that defendant's Manager in Bangkok went to the
extent of threatening the plaintiff in the presence of many
passengers to have him thrown out of the airplane to give the "first
class" seat that he was occupying to, again using the words of the
witness Ernesto G. Cuento, a "white man" whom he (defendant's
Manager) wished to accommodate, and the defendant has not
proven that this "white man" had any "better right" to occupy the
"first class" seat that the plaintiff was occupying, duly paid for, and
for which the corresponding "first class" ticket was issued by the
defendant to him.40
5. The responsibility of an employer for the tortious act of its
employees need not be essayed. It is well settled in law. 41 For
the willful malevolent act of petitioner's manager, petitioner, his
employer, must answer. Article 21 of the Civil Code says:
ART. 21. Any person who willfully causes loss or injury to another
in a manner that is contrary to morals, good customs or public
policy shall compensate the latter for the damage.
In parallel circumstances, we applied the foregoing legal precept;
and, we held that upon the provisions of Article 2219 (10), Civil
Code, moral damages are recoverable. 42
6. A contract to transport passengers is quite different in kind and
degree from any other contractual relation. 43 And this, because of
the relation which an air-carrier sustains with the public. Its business
is mainly with the travelling public. It invites people to avail of the
comforts and advantages it offers. The contract of air carriage,
therefore, generates a relation attended with a public duty. Neglect
or malfeasance of the carrier's employees, naturally, could give
ground for an action for damages.

Passengers do not contract merely for transportation. They have a
right to be treated by the carrier's employees with kindness,
respect, courtesy and due consideration. They are entitled to be
protected against personal misconduct, injurious language,
indignities and abuses from such employees. So it is, that any rule
or discourteous conduct on the part of employees towards a
passenger gives the latter an action for damages against the carrier.
44
Thus, "Where a steamship company 45 had accepted a passenger's
check, it was a breach of contract and a tort, giving a right of action
for its agent in the presence of third persons to falsely notify her
that the check was worthless and demand payment under threat of
ejection, though the language used was not insulting and she was
not ejected." 46 And this, because, although the relation of
passenger and carrier is "contractual both in origin and nature"
nevertheless "the act that breaks the contract may be also a tort".
47 And in another case, "Where a passenger on a railroad train,
when the conductor came to collect his fare tendered him the cash
fare to a point where the train was scheduled not to stop, and told
him that as soon as the train reached such point he would pay the
cash fare from that point to destination, there was nothing in the
conduct of the passenger which justified the conductor in using
insulting language to him, as by calling him a lunatic," 48 and the
Supreme Court of South Carolina there held the carrier liable for
the mental suffering of said passenger.
Petitioner's contract with Carrascoso is one attended with public
duty. The stress of Carrascoso's action as we have said, is placed
upon his wrongful expulsion. This is a violation of public duty
by the petitioner air carrier — a case of quasi-delict. Damages
are proper.
7. Petitioner draws our attention to respondent Carrascoso's
testimony, thus —
Q You mentioned about an attendant. Who is that attendant and
purser?
A When we left already — that was already in the trip — I could
not help it. So one of the flight attendants approached me and
requested from me my ticket and I said, What for? and she said,
"We will note that you transferred to the tourist class". I said,
"Nothing of that kind. That is tantamount to accepting my transfer."
And I also said, "You are not going to note anything there because
I am protesting to this transfer".
Q Was she able to note it?
A No, because I did not give my ticket.
Q About that purser?
A Well, the seats there are so close that you feel uncomfortable
and you don't have enough leg room, I stood up and I went to the
pantry that was next to me and the purser was there. He told me,
"I have recorded the incident in my notebook." He read it and
translated it to me — because it was recorded in French — "First
class passenger was forced to go to the tourist class against his
will, and that the captain refused to intervene."
Mr. VALTE —
I move to strike out the last part of the testimony of the witness
because the best evidence would be the notes. Your Honor.
COURT —
I will allow that as part of his testimony. 49
Petitioner charges that the finding of the Court of Appeals that the
purser made an entry in his notebook reading "First class passenger
was forced to go to the tourist class against his will, and that the
captain refused to intervene" is predicated upon evidence
[Carrascoso's testimony above] which is incompetent. We do not
think so. The subject of inquiry is not the entry, but the ouster
incident. Testimony on the entry does not come within the
proscription of the best evidence rule. Such testimony is admissible.
49a
Besides, from a reading of the transcript just quoted, when the
dialogue happened, the impact of the startling occurrence was
still fresh and continued to be felt. The excitement had not as yet
died down. Statements then, in this environment, are admissible
as part of the res gestae. 50 For, they grow "out of the nervous
excitement and mental and physical condition of the declarant". 51
The utterance of the purser regarding his entry in the notebook
was spontaneous, and related to the circumstances of the ouster
incident. Its trustworthiness has been guaranteed. 52 It thus
escapes the operation of the hearsay rule. It forms part of the res
gestae.
At all events, the entry was made outside the Philippines. And, by
an employee of petitioner. It would have been an easy matter for
petitioner to have contradicted Carrascoso's testimony. If it were
really true that no such entry was made, the deposition of the
purser could have cleared up the matter.
We, therefore, hold that the transcribed testimony of Carrascoso is
admissible in evidence.
8. Exemplary damages are well awarded. The Civil Code gives the
court ample power to grant exemplary damages — in contracts and
quasi- contracts. The only condition is that defendant should have
"acted in a wanton, fraudulent, reckless, oppressive, or malevolent
manner." 53 The manner of ejectment of respondent Carrascoso
from his first class seat fits into this legal precept. And this, in
addition to moral damages.
9. The right to attorney's fees is fully established. The grant of
exemplary damages justifies a similar judgment for attorneys' fees.
The least that can be said is that the courts below felt that it is but
just and equitable that attorneys' fees be given. 55 We do not
intend to break faith with the tradition that discretion well exercised
— as it was here — should not be disturbed. G.R. No. L-10073 December 24, 1915
BUTARO YAMADA, plaintiff-appellee, vs. THE MANILA
10. Questioned as excessive are the amounts decreed by both the RAILROAD CO., defendant, and BACHRACH GARAGE & TAXICAB
trial court and the Court of Appeals, thus: P25,000.00 as moral CO., defendant-appellant.
damages; P10,000.00, by way of exemplary damages, and P3,000.00
as attorneys' fees. The task of fixing these amounts is primarily with G.R. No. L-10074 December 24, 1915
the trial court. 56 The Court of Appeals did not interfere with the KENJIRO KARABAYASHI, plaintiff-appellee, vs. THE MANILA
same. The dictates of good sense suggest that we give our RAILROAD CO., defendant, and BACHRACH GARAGE & TAXICAB
imprimatur thereto. Because, the facts and circumstances point to CO., defendant-appellant.
the reasonableness thereof.57
G.R. No. L-10075 December 24, 1915
On balance, we say that the judgment of the Court of Appeals does TAKUTARU UYEHARA, plaintiff-appellee, vs. THE MANILA
not suffer from reversible error. We accordingly vote to affirm the RAILROAD CO., defendant, and BACHRACH GARAGE & TAXICAB
same. Costs against petitioner. So ordered. CO., defendant-appellant.
MORELAND, J.:
Concepcion, C.J., Reyes, J.B.L., Barrera, Dizon, Regala, Makalintal,
Zaldivar and Castro, JJ., concur. The three cases dealt with in this decision differ in their facts only
Bengzon, J.P., J., took no part. with respect to the injury suffered by the respective plaintiffs. The
law applicable to them is the same and, at the request of counsel,
they will be decided at the same time. Plaintiffs claim damages
against both the railroad and the garage company because of
injuries suffered by them in a collision between a train owned
by and operated over tracks belonging to the railroad company
and an automobile the property of the Bachrach Garage &
Taxicab Co.

On January 2, 1913, the plaintiffs, together with three companions,

hired an automobile from the defendant taxicab company for a trip
to Cavite Viejo. The automobile was secured at a certain price hour
and was driven and controlled by a chauffeur supplied by the
taxicab company. The journey to Cavite Viejo was made without
incident but, on the return trip, while crossing the tracks of
defendant railroad company in the barrio of San Juan, municipality
of Cavite Viejo, the automobile was struck by a train and the
plaintiffs injured.

The trial court dismissed the complaint on the merits as to the

Manila Railroad Company and held the defendant taxicab company
liable for damages to the plaintiffs in various amounts. The taxicab
company appealed.

It appears from the record, and was found by the trial court, that
the driver of the automobile drove his machine upon the railroad
tracks without observing the precautions which ordinary care and
prudence would require, without reducing speed and without
taking any precaution looking to determining whether there was
danger from a train or locomotive. The trial court accordingly found
that the driver was guilty of gross negligence and that said
negligence was the proximate cause of the accident. It also found
that the driver had been, in effect, instructed by the taxicab
company to approach and pass over railroad tracks in the manner
and form followed and observed on the occasion in question, and
that, for that reason, the taxicab company was liable for the
damages caused.
Several errors are assigned by the appellant. The first one relates
to the finding of the trial court: "That the driver of the automobile
did not slacken speed, which was fast, upon approaching the
railroad crossing, which was clearly visible and had to be
approached on an upward grade, or take any other precaution to
avert accident. ... and I can but conclude that the driver of the
automobile was grossly negligent and careless in not taking such
precaution as would have notified him of the coming of the train.
On the contrary, he proceeded with reckless speed and regardless
of possible or threatened danger. If he had been driving the
automobile at a proper rate of speed for going over railroad
crossing he could easily have stopped before going over the
railroad crossing after seeing the train."
The argument of the appellant which is devoted to this findings
seems to admit impliedly at least that the driver of the automobile
maintained his rate of speed as he approached and went upon the
railroad crossing; and that he took no precaution to ascertain the
approach of a train.
The appellant contended on the trial and offered evidence to prove
that, on approaching the railroad crossing from the direction in
which the automobile was travelling at the time, the view of the
railroad tracks in both directions was obstructed by bushes and
trees growing alongside thereof, and that it was impossible for a
person approaching the crossing even though on guard, to detect
by sight the approach of a train. If that were the case, it was clearly
the duty of the driver to reduce the speed of his car and the noise
thereof to such an extent that he would be able to determine from
the unrestricted and uninterrupted use of all his faculties whether
or not a train was near. It is the law that a person must use ordinary
care and prudence in passing over a railroad crossing. While we are
not prepared to lay down any absolute rule as to what precise acts
of precaution are necessary to be done or left undone by a person
who may have need to pass over a railroad crossing, we may say
that it is always incumbent on him to use ordinary care and
diligence. What acts are necessary to constitute such care and
diligence must depend on the circumstances of each particular
case. The degree of care differs in different cases. Greater care is
necessary in crossing a road where the cars are running at a high
rate of speed and close together than where they are running at
less speed and remote from one another. But in every case due
care should be exercised. It is very possible that where, on
approaching a crossing, the view of the tracks in both directions is
unobstructed for such a distance as to render it perfectly safe to
pass over without the use of any other faculty than sight, such use
alone is sufficient and it is not necessary to stop or even to slacken
speed or listen. On the other hand, where the view of the tracks is
obstructed, them it is driver's duty to slacken speed, to reduce the
noise, if any, of the vehicle, to look and to listen, if necessary, or do
any other act necessary to determine that a train is not in
dangerous proximity to the crossing.
In the case at bar the appellant's own showing is to the effect that
the view of the track in the direction from which the train was
coming was obstructed in such manner that neither the track nor a
train could be seen as a traveler approached the crossing; and yet,
in spite of that fact, the chauffeur drove upon the tracks without
investigation or precaution of any kind. The very fact that a train
was approaching and was so near as to collide with the automobile
is strong evidence of the fact that no precautions were taken to
determine that fact. It is undoubted that if the driver had taken the
simplest means of permitting his own faculties to exercise
themselves fairly, there would have been no accident, as the
presence of the train would have been discovered in an instant; but
he chose, rather, to give his senses no opportunity to protect him
or his passengers and drove on the track at full speed with all the
noise which an automobile produces at such speed on an upgrade
and the sense of hearing impaired by the rush of the wind. Railroad
trains rarely pass over tracks without noise and their presence,
generally speaking, is easily detected by persons who take ordinary
precautions.
Under this assignment the appellant's main effort is being to the
demonstration of the fact that there was a custom established
among automobile drivers of Manila by which they habitually drove
their cars over railroad crossings in the manner in which the
automobile was driven by defendant's servant on the occasion in
controversy. To prove that custom counsel presents the evidence
of the president of the defendant company, Mr. Bachrach, who
testified on the trial that all of his drivers, including the one in
charge of the car on the night of the accident, operated cars in that
manner and that it was the custom among automobile drivers
generally. Counsel also cites the testimony of the witness Palido,
living near the scene of the accident, who testified that, as a general
rule, automobiles passed over the railroad crossing without
changing speed. This testimony was corroborated by the defendant
company's driver who had the automobile in charge at the time of
the occurrence. Basing himself on this alleged custom counsel
contends that "When a person does what is usual and customary,
i. e., proceeds as he and others engaged in a like occupation have
been accustomed to proceed, the action cannot be characterized
as reckless, nor, strictly speaking as negligent." To this the obvious
reply may be made, for the moment admitting the existence of the
custom, that a practice which is dangerous to human life cannot
ripen into a custom which will protect anyone who follows it. To go
upon a railroad crossing without making any effort to ascertain the
approach of a train is so hazardous an act and one so dangerous
to life, that no one may be permitted to excuse himself who does
it, provided injury result. One who performs an act so inherently
dangerous cannot, when an accident occurs, take refuge behind the
plea that others have performed the same act safely.
Under the second error assigned, the appellant contends with much
vigor that the plaintiffs cannot recover for the reason that the
negligence of the driver of the automobile, if any, was imputable
to them, they having permitted the driver to approach and pass
over the railroad crossing without the use of ordinary care and
diligence to determine the proximity of a train or locomotive, and
having made no effort to caution or instruct him or compel him to
take reasonable care in making the crossing. With this contention
we cannot agree. We think the better rule, and one more consonant
with the weight of authority, is that a person who hires a public
automobile and gives the driver direction as to the place to which
he wishes to be conveyed, but exercise no other control over the
conduct of the driver, is not responsible for acts of negligence of
the latter or prevented from recovering for injuries suffered from a
collision between the automobile and a train, caused by the
negligence either of the locomotive engineer or the automobile
driver. (Little vs. Hackett, 116 U.S., 366.) The theory on which the
negligence of the driver has in some instances been imputed to the
occupant of the vehicle is that, having trusted the driver by
selecting the particular conveyance, the plaintiff so far identified
himself with the owner and his servants that, in case of injury
resulting from their negligence, he was considered a party thereto.
This was the theory upon which the case of Thorogood vs. Bryan
(8 C.B., 115) was decided, which is the leading case in favor of the
principle contended for by appellant. The Supreme Court of the
United States, however, in Little vs. Hackett (116 U.S., 366), had this
to say concerning the ground on which the Thorogood case was
decided: "The truth is, the decision in Thorogood vs. Bryan rests
upon indefensible ground. The identification of the passenger with
the negligent driver or the owner, without his personal cooperation
or encouragement, is a gratuitous assumption. There is no such
identity. The parties are not in the same position. The owner of
public conveyance is a carrier, and the driver or the servant of the
passenger, and his asserted identity with them is contradicted by
the daily experience of the world."
Further discussing the same question the court said: "There is no
distinction in principle whether the passenger be on public
conveyance like a railroad train or an omnibus, or be on a hack
hired from a public stand in the street for a drive. Those on a hack
do not become responsible for the negligence of the driver if they
exercise no control over him further than to indicate the route they
wish to travel or the places to which they wish to go. If he is their
agent so that his negligence can be imputed to them to prevent
their recovery against a third party, he must be their agent in all
other respects, so far as the management of the carriage is
concerned, and responsibility to third parties would attach to them
for injuries caused by his negligence in the course of his
employment. But, as we have already stated, responsibility cannot,
within any recognized rules of law, be fastened upon one who has
in no way interfered with and the with and controlled in the matter
causing the injury. From the simple fact of hiring the carriage or
riding in it no such liability can arise. The party hiring or riding must
in some way have cooperated in producing the injury complained
of before he incur any liability for it. 'If the law were otherwise,' as
said by Mr. Justice Depue in his elaborate opinion in the latest case
in New Jersey, 'not only the hirer of the coach but also all the
passengers in it would be under a constraint to mount the box and
superintend the conduct of the driver in the management and
control of his team, or be put for remedy exclusively to an action
against the irresponsible driver or equally irresponsible owner of a
coach taken, it may be, from a coach stand, for the consequences
of an injury which was the product of the cooperating wrongful
acts of the driver and of a third person, and that too, though the
passengers were ignorant of the character of the driver, and of the
responsibility of the owner of the team, and strangers to the route
over which they were to be carried.' (New York, Lake Erie & Western
Railroad vs. Steinbrenner, 47 N.J.L. [18 Vroom], 161, 171.)"
We are of the opinion, therefore, that the rule is as we have stated
it. Ordinarily where one rides in public vehicle with the driver
thereof and is injured by the negligence of a third person, to which
negligence that of the driver contributes his contributory
negligence is not imputable to the passenger unless said passenger
has or is in the position to have and exercise some control over the
driver with reference to the matter wherein he was negligent.
Whether the person injured exercises any control over the conduct
of the driver further than to indicate the place to which he wishes
to drive is a question of fact to be determined by the trial court on
all of the evidence in the case. (Duval vs. Railroad Co., 134 N. C.,
331; Hampel vs. Detroit etc. R. R. Co., 110 Am. St. Rep., 275; Cotton
vs. Willmar etc. R. R. Co., 99 Minn., 366; Shultz vs. Old Colony Street
Ry. Co., 193 Mass., 309; Wilson vs. Puget Sound Elec. Ry. Co., 52
Wash., 522; Johnson vs. Coey, 237 Ill., 88; Hindu vs. Steere, 209
Mass. 442.)
The appellant assigns as the third error the finding of the trial court
"that the defendant Manila Railroad Company was not guilty of
negligence which contributed to the causing of the accident
complained of."
In this connection it appears that, prior to the beginning of the
action now before us, two actions were instituted, both growing
out of the accident which forms the basis of the actions before us:
(1) A criminal action against the engineer of the train, in which the
engineer was acquitted; and (2) a civil action for damages by the
garage and taxicab company, the appellant herein, against the
defendant railroad company, for damages to the automobile which
was destroyed as a result of the accident, in which judgment was
for defendant. There is evidence in the record showing that the
locomotive engineer gave due and timely signals on approaching
the crossing in question. The trial court found that the employees
of the railroad company fully performed their duty as the train
approached the crossing on the night in question and that,
therefore, the railroad company in nowise contributed to the
accident. We do not believe that the record will justify us in a
reversal of this finding. There is abundant evidence to support it
and we have nothing before us by which that evidence may be
impeached. That the bell was rung and the whistle was blown on
nearing the crossing, giving due and timely warning to all persons
approaching, was testified to not only by servants of the
corporation but by passengers on the train. We find nothing in the
record which materially impairs the credibility of these witnesses or
to show that their evidence is improbable or unreasonable; and we
would be going far under such circumstances in discarding it and
reversing a judgment based thereon.
The appellant under this assignment of error presents other facts
which he claims show necessarily that the company was negligent.
He asserts: "(1) That this accident occurred in the heart of the barrio
of San Juan (Cavite Viejo), within approximately one hundred
meters of the railroad station, that is, in a populous community; (2)
that the railroad company did not maintain either a flagman or
protecting gates at the grade crossing where the accident occurred,
while the sign "Railroad Crossing" was broken on the side toward
the road; (3) that trees and undergrowth had been permitted to
grow on and adjoining the right of way and houses were
constructed thereon, in such manner as to obstruct the view of
persons approaching the railroad track until within a few meters
thereof; and (4) that the approach to the crossing is twisting, and
on either side thereof are ditches about two meters deep."
With respect to the existence of trees and undergrowth on the
railroad company's right of way, the evidence is conflicting, plaintiff
maintaining and attempting to prove that such trees and
undergrowth existed, while defendant company contended and
offered evidence to show that no such growth existed at the time
of the accident. On this conflict of evidence the trial court found:
"Evidence on the part of the defendant Bachrach Garage & Taxicab
Co. is to the effect that the view from the crossing along the track
towards Manila was obstructed by bushes growing on the railroad
right to way along the track, while the preponderance of the
evidence discloses that for a distance of twelve or fifteen meters
from the a view of the track for a considerable distance is wholly
unobstructed, and I can but conclude that the driver of the
unobstructed, and I can but conclude that the driver of the
automobile was grossly negligent and careless in not taking such
precaution as would have notified him of the coming of the train.
On the contrary, he proceeded with reckless speed and regardless
of possible or threatened danger."
Here again we are met with a contradiction in the evidence of
witnesses who, so far as appears, are equally entitled to credit,
which conflict has been resolved by the trial court in favor of the
witnesses for the defendant railroad company. Counsel for
appellant has failed to give any reason why we should we should
accept the testimony of appellant's witnesses rather than those of
the railroad company and he has also neglected to point out any
error committed by the trial court in making its finding in this
regard. A careful examination of the record discloses no reason why
the judgment of the trial court on this point should be disturbed,
there appearing nothing on which we could base a judgment
declaring that the trial court erred in making its decision.
As to the other facts set forth on which appellant predicates
negligence on the part of the railroad company, we find them, even
if admitted, to be insufficient to establish negligence. It is not
negligence on the part of the railroad company to maintain grade
crossing, even in populous district; nor is it negligence not to
maintain a flagman at such crossing. It is true that a railroad
company is held to greater caution in the more thronged streets of
the densely populated portions of the city than in the less
frequented streets in suburban parts or in towns; but this does not
mean that it is negligence to maintain grade crossing in such
densely populated portions or that it is negligence not to maintain
a flagman at crossings located in such districts. It simply means that
the company in operating its trains over such crossings must
exercise care commensurate with the use of crossings in any given
locality.
The main contention of the appellant is based on the claim that,
even admitting as proved all of the facts alleged by the
plaintiffs, the appellant is not liable. It is maintained that up to
the time the accident occurred the defendant taxicab company had
fully performed its duty to the public, it being undisputed in the
record that the driver was competent and had a long and
satisfactory record, having driven cars for the defendant for 5 or 6
years without accident or misadventure, and that his negligence, if
any, in attempting to pass over the crossing on the occasion before
us, cannot legally be imputed to the taxicab company so as to make
it liable for the damages resulting therefrom. In supporting of this
argument the case of Johnson vs. David (5 Phil., Rep., 663), is cited
as determinative of the question under consideration. The
appellant, however, having denied the fact of negligence, we might,
before entering on a discussion of the applicability of the principles
enunciated in Johnson vs. David to the facts before us, repeat what
we have already said, that it appears from the record, and was
found by the trial court, that the driver of the automobile drove his
machine upon the railroad tracks without observing the precautions
which ordinary care and prudence would have required. He made
substantially no effort toward ascertaining whether there was
danger from a train or locomotive. The trial court found, as was
quite necessary under the facts, that the driver was guilty of gross
negligence and that such negligence was the proximate cause of
the accident. It also found that the taxicab company had permitted
its drivers to approach and pass over railroad tracks in the manner
and form followed and observed on the occasion in question until
it had become a custom among its drivers, known and sanctioned
by the company; and that, for that reason, the taxicab company
was liable for the damages caused. We are of the opinion that the
trial court is fully supported in the finding that the conduct of
the officials of the taxicab company, and notably the president
thereof, amounted, in law, to a sanction of the custom
established among its automobile drivers in passing over
railroad crossings. Counsel is met, therefore, at the opening of his
discussion on this branch of the case, with the question: Did the
defendant taxicab company fully discharge its duty when it
furnished a suitable and proper car and selected driver who had
been with the company for 5 or 6 years and who had not had an
accident or misadventure before? We think not. It was the duty of
the company not only to furnish a suitable and proper car and
select a competent operator, but also to supervise and, where
necessary, instruct him properly.
Returning now to the applicability of the case of Johnson vs.
David to the facts before us:
The Civil Code, in dealing with the liability of a master for the
negligent acts of his servant, makes a distinction between
private individuals and public enterprises. (Art. 1903, Civil Code.)
That article, together with the preceding article, is as follows:itc-a1f
ART 1902. A person who by an act or omission causes damage
to another when there is fault or negligence shall be obliged to
repair the damage so done.
ART. 1903. The obligation imposed by the preceding article is
demandable, not only for personal acts and omissions, but also
for the persons for whom they should be responsible.
The father, and on his death or incapacity the mother is liable for
the damages caused by the minors who live with them.
Guardians are liable for the damages caused by minors or
incapacitated persons who are under their authority and live with
them.
Owners or directors of an establishment or enterprise are equally
liable for the damages caused by their employees in the service of
the branches in which the latter may be employed or on account
of their duties.
The State is liable in this sense when it acts through a special agent,
but not when the damage should have been caused by the official
to whom properly it pertained to do the act performed, in which
case the provisions of the proceeding article shall be applicable.
Finally, master or directors of arts and trades are liable for the
damages caused by their pupils or apprentices while they are under
their custody.
The liability referred to in this articles shall cease when the
persons mentioned therein prove that they employed all the
diligence of a good father of a family to avoid the damage.
These two articles are found under chapter 2, title 16, of the Civil
Code, dealing with "obligations which arise from fault or
negligence;" and set out the cases, generally speaking, in which the
master is liable for the acts of his servant. That chapter also contains
articles providing for liability for negligent acts of servants in special
cases, among them 1905, which provides that "the possessor of an
animal, or the one who uses it, is liable for the damages it may
cause even when said animal escapes from him or strays," but that
this liability shall cease "in the case the damage should arise from
force majeure or from the fault of the person who may have
suffered it;" 1906, which declares that "the owner of a game
preserve shall be liable for damages caused by the game to
neighboring estates, should he not have done what may have been
necessary to avoid increase of the same or should he have hindered
the efforts of the owners of said estates to hunt;" 1907, which
provides for the liability of the owner of a building "for damages
which may result from the collapse of the whole or a part thereof,
if it should occur through the absence of necessary repairs;" 1908,
which states that "owners shall be liable for damages caused by the
explosion of machines which may not have been cared for with due
diligence, and been placed in a safe and proper place;" "by
excessive smoke, which may be noxious to persons of property;"
"by the fall of trees, located in places of transit, when not caused
by force majeure;" "by the emanations of sewers or deposits of
infectious matters, when constructed without precautions proper
for the place where they are located;" and "the head of a family
who dwells in a house, or in a part of the same, is liable for the
damages by the things which may be thrown or which may fall
therefrom."
These are the only cases under the Civil Code in which damages
may be recovered from the master for the negligent of his servant.
As is seen from a reading of article 1903, a person being driven
about by his servant's negligent acts except under certain
circumstances. (Chapman vs. Underwood, 27 Phil., Rep., 374;
Johnson vs. David, supra.) On the other hand, the master is liable
for the negligent acts of his servant where he is the owner or
director of a business or enterprise and the negligent acts are
committed while the servant is engaged in his master's
employment as such owner.
The distinction made in the Code has been observed, as would
naturally be expected, by the decisions of this court. In the case of
Johnson vs. David, supra, we held that the defendant was not liable
for the acts of his servant in negligently driving a horse and carriage
against plaintiff, who was at the time riding a bicycle in the streets
of Manila, throwing him to the ground and injuring him and his
bicycle. It appeared in that case that the vehicle was owned by the
defendant, that it was being driven by the defendant's coachman
on the private affairs of the owner, that it was not a public
conveyance driven for hire or as a part of a business or enterprise.
In that case we said: "It would seem, from an examination of these
various provisions, that the obligation to respond for the negligent
acts of another was limited to the particular cases mentioned; in
other words, we are of the opinion and so hold that it was the
intention of the legislature in enacting said chapter 2 to enumerate
all the persons for whose negligent acts third persons are
responsible. Article 1902 provides when a person himself is liable
for negligence. Articles 1903, 1904, 1905, 1906, 1907, 1908, and
1910 provide when a person shall be liable for injuries caused, not
by his own negligence but by the negligence of other persons or
things.
xxx xxx xxx
These sections do not include a liability on the part of the plaintiff
for injuries resulting from acts of negligence such as are
complained of in the present cause . . . ."
These case of Chapman vs. Underwood, (27 Phil., Rep., 374) was
similar in its facts and the principles governing it, to that of Johnson
vs. David. In that case the plaintiff, while about to board a street
car, was struck by an automobile which, at the time, was being
driven on the wrong side of the street. The automobile was in
charge of the servant of the owner, who was present in the
automobile at the time the accident occurred. The automobile was
not a part of defendant's business nor was it being used at the time
as a part or adjunct of any business or enterprise owned or
conducted by him. Although the act of the driver was negligent,
and was so declared by this court, it was, nevertheless, held that
the master was not liable for the results of the act. We said:
The defendant, however, is not responsible for the negligence of
his driver, under the facts and circumstances of this case. As we
have said in the case of Johnson vs. David (5 Phil., Rep., 663), the
driver does not fall within the list of person in article 1903 of the
Civil Code for whose acts the defendant would be responsible.
Although in the David case the owner of the vehicle was not present
at the time the alleged negligent acts were committed by the driver,
the same rule applies where the owner is present, unless the
negligent acts of the driver are continued for such a length of time
as to give the owner a reasonable opportunity to observe them and
to direct his driver to desist therefrom. An owner who sits in his
automobile, or other vehicle, and permits his driver to continue in
a violation of the law by the performance of negligent acts, after
he has had a reasonable opportunity to observe them and to direct
that the driver, becomes himself responsible for such acts. The
owner of an automobile who permits his chauffeur to drive up the
Escolta, for example, at a speed of 60 miles an hour, without any
effort to stop him, although he has had a reasonable opportunity
to do so, becomes himself responsible, both criminally and civilly,
for the results produced by the acts of his chauffeur. On the other
hand, if the driver, by a sudden act of negligence, and without the
owner having a reasonable opportunity to prevent the act or its
continuance, injures a person or violates the criminal law, the owner
of the automobile, although present therein at the time the act was
committed, is not responsible, either civilly or criminally, therefor.
The act complained of must be continued in the presence of the
owner for such a length of time that the owner, by his acquiescence,
makes his driver's act his own.
In the case before us it does not appear from the record that, from
the time the automobile took the wrong side of the road to the
commission of the injury, sufficient time intervened to afford the
defendant an opportunity correct the act of his driver. Instead, it
appears with fair clearness that the interval between the turning
out to meet and pass the street car and the happening of the
accident was so short as not to be sufficient to charge defendant
with the negligence of the driver.
The case of Bahia vs. Litonjua and Leynes (30 Phil., Rep., 624), was
a case of a different character. There an automobile was being
operated by the defendant as a public vehicle carrying passengers
from Balayan to Tuy (Province of Batangas) and return for hire. On
one to the trips, the machine, by reason of a defect in the steering
gear, refused to respond to the guidance of the driver and, as a
result a child was run over and killed. That case, as is seem at a
glance, is quite different from the case of Johnson vs. David and
that of Chapman vs. Underwood, in that the automobile was
operated as a business or enterprise on which the defendant had
entered for gain; and this is the particular distinction which is made
in article 1903 of the Civil Code which holds the masters responsible
for the negligent acts of the servant when the master is the owner
"of an establishment or enterprise," and the acts complained of are
committed within the scope of the servant's employment in such
business. In the case under discussion we held that, in addition to
the requirement to furnish and use proper and safe machines, it
was the duty of a person or corporation operating automobiles for
hire to exercise ordinary care and diligence in the selection of the
drivers of his or its automobiles and in supervision over them while
in his or its employ, including the promulgation of proper rules and
regulations and the formulation and due publication of proper
instructions for their guidance in cases where such rules, regulations
and the formulation and due publication of proper instructions for
their guidance in cases where such rules, regulations and instruction
are necessary. Discussion article 1903 of the Civil Code, which, as
we have seen, not only established liability in case of negligence
but also provides when that liability ceases, the court in that case
said:
From this article two things are apparent: (1) That when an injury is
caused by the negligence of a servant or employee there instantly
arises a presumption of law that there was negligence on the part
of the master or employer either in the selection of the selection
of the servant or employee or in supervision over him after the
selection, or both; and (2) that that presumption is juris tantum and
not juris et de jure and consequently may be rebutted. It follows
necessarily that if the employer shows to the satisfaction of the
court that in selection and supervision he has exercised the care
and diligence of a good father of a family, the presumption is
overcome and he is relieved from liability.
This theory bases the responsibility of the master ultimately on his
own negligence and not on that of his servant. This is the notable
peculiarity of the Spanish law of negligence. It is, of course, in
striking contrast to the American doctrine that, in relations with
strangers, the negligence of the servant is conclusively the
negligence of the master.
In the case before us the death of the child caused by a defect in
the steering gear of the automobile immediately raised the
presumption that Leynes was negligent in selecting a defective
automobile or in his failure to maintain it in good condition after
selection and the burden of proof was on him to show that he had
exercised the care of a good father of a family.
In that case we further said: "From the commencement of the use
of the machine until the accident occurred sufficient time had not
elapsed to require an examination of the machine by the defendant
as a part of his duty of inspection and supervision. While it does
not appear that the defendant formulated rules and regulations for
the guidance of the drivers and gave them proper instructions,
designed for the protection of the public and the passengers, the
evidence shows, as we have seen, that the death of the child was
not caused by a failure to promulgate rules and regulations. It was
caused by a defect in the machine as to which the defendant has
shown himself free from responsibility."
We, therefore, see that taxicab company did not perform its full
duty when it furnished a safe and proper car and a driver with
a long and satisfactory record. It failed to comply with one of
the essential requirements of the law of negligence in this
jurisdiction, that of supervision and instruction, including the
promulgation of proper rules and regulations and the
formulation and publication of proper instructions for their
guidance in cases where such rules and regulations and
instructions are necessary. To repeat, it was found by the trial
court, and that finding is fully sustained by the record, that it
was the custom of the driver who operated the machine on the
night of the accident, to approach and pass over railroad
crossings without adequate precautions, and that such custom
was known to and had been sanctioned by the officials of the
taxicab company, the president of the company testifying that
none of its drivers, especially the one who operated the car on the
night of the accident, were accustomed to stop or even reduce
speed or take any other precaution in approaching and passing
over railroad crossings, no matter of what nature, unless they heard
"the signal of a car." He testified that he himself had ridden behind
several of his drivers, among them the one who handled the
automobile on the night of the accident, and that it was settled
practice, to which he made no objection and as to which he gave
no instructions, to approach and pass over railroad crossings
without any effort to ascertain the proximity of a train. These facts
and circumstances bring the case within the doctrine enunciated
in the Litonjua case to which reference has already been made,
and, at the same time, remove it from that class of cases
governed by Johnson vs. David. Not only has the defendant
taxicab company failed to rebut the presumption of negligence
arising from the carelessness of its servant, but it has, in effect,
made those negligent acts its own by having observed and
known the custom of its drivers without disapproving it and
without issuing instructions designed to supersede it.
We are of the opinion that the trial court erred in fixing the amount
of damages which the plaintiffs suffered. Under the law, each of the
plaintiffs, is entitled to recover the time, doctors' bills and hospital
bills and hospital bills and medicines, and any other item of expense
which it was found necessary to undergo by reason of the damages
sustained.
The plaintiff Butaro Yamada is entitled to be reimbursed for his
hospital bill of P49, for the P50 which he paid to Dr. Strahan, and
for the loss of time which he suffered at the rate of P100 a month.
The trial court allowed him for certain alleged fees of doctors and
expenses in hospitals and at hot springs in Japan. He was also
allowed P150 alleged by him to have been paid to a Japanese
doctor in Manila. We do not believe that the record warrants these
allowances. As to the expenses in Japan, we may say that the injury
occurred to plaintiff on the 2nd of January and he remained in
Manila for nearly 6 months before going to Japan. According to
the testimony of Dr. Strahan the plaintiff was in good physical
condition long before he left this country for Japan. His testimony
is to the effect that the plaintiff suffered no permanent injuries, the
damage being limited to temporary shocks and bruises, and that
he would be ready for his usual occupation in about 3 months.
According to plaintiff's own testimony he went back to work 2
months after the injury, but, claiming he still felt pains, went to
Japan. We do not believe that we ought to accept the plaintiff's
bare statement as to his physical condition after leaving the
Philippine Islands in defiance of the testimony of Dr. Strahan as to
his physical condition 3 months after the injury was received and
particularly in view of the fact that he returned to work at the end
of 2 months. As to the P150 alleged to have been paid to a
Japanese doctor in Manila, we have grave doubts whether he had
sufficiently proved that item of expenditure. He does not give the
name of the physician to whom he paid the money and he presents
no receipt or voucher from the person whom he paid. He made no
memorandum of the payment at the time or of the person to whom
he paid it or of the date on which it was paid. All of his testimony
relating to the items which constitute his damage was based on a
memorandum made from memory on the morning of the trial. It
seems to us that where the sources of knowledge are to so large
an extent within the knowledge and control of the person who
presents the evidence, he should be held rather strictly to
presenting the best evidence that the circumstances permit. If he
had offered the Japanese doctor as a witness or if he had even
produced receipts from him, the matter would have borne quite a
different aspect.
We are accordingly of the opinion that the judgment in favor of
this plaintiff should consist simply of the loss of time, amounting
to 2 months at P100 a month, his hospital bill of P49 and his
doctor's bill of P50, in all P299, with costs.
With respect to the plaintiff Takutaru Uyehara, the judgment in his
favor must be also modified. Concerning his condition we have
substantially the same testimony by the same doctor that we had
in the case of Yamada. There were no permanent injuries. The
plaintiff suffered merely from shock and bruises. He was quite
recovered in 3 months. It appears that he was earning P200 a
month at the time of his injury and that his hospital expense,
including attendance of a physician, was P350. We are satisfied from
the record that he is entitled to P600 for 3 months' loss of wages
and to P350 for hospital expenses and medical attendance. As to
the claim for P150 paid to a Japanese doctor, we have in substance
the same circumstances found in connection with the claim of the
plaintiff Yamada, — no name, no date, no memorandum, no
receipt; nothing but the testimony of the plaintiff himself based
upon date prepared from memory. It is worthy of note also that
both this plaintiff and plaintiff Yamada claim to have paid exactly
the same amount to Japanese doctors in Manila.
Judgment is hereby rendered in favor of the plaintiff Takutaru
Uyehara for the sum of P950, and costs.
With respect to the judgment in favor of the plaintiff Kenjiro
Karabayashi, we are clear that it must be reduced in amount. This
plaintiff was able, immediately after the accident occurred, to move
about readily an to assist his injured companions. He did not go to
a hospital, or, so far as appeared, consult a physician until some
time after the accident. He alleges that he paid to Japanese doctors
P310 and to massage doctors P130, and that he paid P365 for
medicines. The injury was received on the 2d of January, 1913, and
this caution was commenced in October of the same year. It seem
to us incredible that the plaintiff, who suffered and suffers from no
physical injury testified to by any physician, should have paid out
during that time more than P800 for medicines and doctors. That
sum exceeds the sums claimed to have been paid out by the other
plaintiffs, who were so badly injured that they were carried in a
semiconscious condition to the hospital and were unable to move
without assistance for some days.
This plaintiff complains of loss of memory as the only result of his
injuries and claims that he is unable to obtain a salary equivalent
to that which he was receiving before the accident. He presents no
evidence of such loss of memory except his own statement, his
physical condition at the time of the trial being apparently perfect
and there being at that time no evidence, as he himself admitted,
of loss of memory. He presented no doctor to testify as to services
rendered, indeed, he does not even furnish the name of the person
to whom the money was paid, and he shows no receipts and
produces no evidence except his own statement with respect to the
amount paid out for medicines. We believe that, under this
testimony, no damages should be allowed to this plaintiff except
possibly salary for the short period during which, by reason of
shock, he may have been unable to render active service. He
testified that he lost two and one-half months' time, during which
he did not work at all, and that his services were worth P160 a
month.
The judgment of the Court of First Instance with respect to this
plaintiff, Kenjiro Karabayashi, is modified and judgment in his favor
and against the Bachrach Garage & Taxicab Co. for P400 is hereby
decreed, with costs.
It may be urged that the reductions in the amounts allowed the
several plaintiffs by the trial court are arbitrary, the evidence as to
the damages sustained being uncontradicted and the trial court
having based its judgment thereon. It is clear, however, that we are
in no way interfering with the rule so many times laid down by this
court that we will not interfere with the judgment of the trial court
as to the credibility of witnesses except where it appears that the
court overlooked or misapplied facts or circumstances of weight
and influence appearing in the case. Here the trial court seems to
have overlooked those facts and circumstances top which we have
adverted and which we have made the basis of the modification. It
nowhere appears in the decision of the trial court or elsewhere in
the record that it took any of those facts and circumstances into
consideration. So ordered.
G.R. No. L-48930 February 23, 1944
ANTONIO VAZQUEZ, petitioner, vs. FRANCISCO DE BORJA,
respondent.
x---------------------------------------------------------x
G.R. No. L-48931 February 23, 1944
FRANCISCO DE BORJA, petitioner, vs. ANTONIO VAZQUEZ,
respondent.
OZAETA, J.:
This action was commenced in the Court of First Instance of Manila
by Francisco de Borja against Antonio Vazquez and Fernando
Busuego to recover from them jointly and severally the total sum
of P4,702.70 upon three alleged causes of action, to wit: First, that
in or about the month of January, 1932, the defendants jointly and
severally obligated themselves to sell to the plaintiff 4,000 cavans
of palay at P2.10 per cavan, to be delivered during the month of
February, 1932, the said defendants having subsequently received
from the plaintiff in virtue of said agreement the sum of P8,400;
that the defendants delivered to the plaintiff during the months of
February, March, and April, 1932, only 2,488 cavans of palay of the
value of P5,224.80 and refused to deliver the balance of 1,512
cavans of the value of P3,175.20 notwithstanding repeated
demands. Second, that because of defendants' refusal to deliver to
the plaintiff the said 1,512 cavans of palay within the period above
mentioned, the plaintiff suffered damages in the sum of P1,000.
And, third, that on account of the agreement above mentioned the
plaintiff delivered to the defendants 4,000 empty sacks, of which
they returned to the plaintiff only 2,490 and refused to deliver to
the plaintiff the balance of 1,510 sacks or to pay their value
amounting to P377.50; and that on account of such refusal the
plaintiff suffered damages in the sum of P150.
The defendant Antonio Vazquez answered the complaint, denying
having entered into the contract mentioned in the first cause of
action in his own individual and personal capacity, either solely or
together with his codefendant Fernando Busuego, and alleging that
the agreement for the purchase of 4,000 cavans of palay and the
payment of the price of P8,400 were made by the plaintiff with and
to the Natividad-Vasquez Sabani Development Co., Inc., a
corporation organized and existing under the laws of the
Philippines, of which the defendant Antonio Vazquez was the acting
manager at the time the transaction took place. By way of
counterclaim, the said defendant alleged that he suffered damages
in the sum of P1,000 on account of the filing of this action against
him by the plaintiff with full knowledge that the said defendant had
nothing to do whatever with any and all of the transactions
mentioned in the complaint in his own individual and personal
capacity.
The trial court rendered judgment ordering the defendant Antonio
Vazquez to pay to the plaintiff the sum of P3,175.20 plus the sum
of P377.50, with legal interest on both sums, and absolving the
defendant Fernando Busuego (treasurer of the corporation) from
the complaint and the plaintiff from the defendant Antonio
Vazquez' counterclaim. Upon appeal to the Court of Appeals, the
latter modified that judgment by reducing it to the total sum of
P3,314.78, with legal interest thereon and the costs. But by a
subsequent resolution upon the defendant's motion for
reconsideration, the Court of Appeals set aside its judgment and
ordered that the case be remanded to the court of origin for further
proceedings. The defendant Vazquez, not being agreeable to that
result, filed the present petition for certiorari (G.R. No. 48930) to
review and reverse the judgment of the Court of Appeals; and the
plaintiff Francisco de Borja, excepting to the resolution of the Court
of Appeals whereby its original judgment was set aside and the
case was ordered remanded to the court of origin for further
proceedings, filed a cross-petition for certiorari (G.R. No. 48931) to
maintain the original judgment of the Court of Appeals.
The original decision of the Court of Appeals and its subsequent
resolutions on reconsideration read as follows:
SPANISH TEXT DELETED
Upon consideration of the motion of the attorney for the plaintiff-
appellee in case CA-G.R. No. 8676, Francisco de Borja vs. Antonio
Vasquez et al., praying, for the reasons therein given, that the
resolution of December 22, 1942, be reconsidered: Considering that
said resolution remanding the case to the lower court is for the
benefit of the plaintiff-appellee to afford him opportunity to refute
the contention of the defendant-appellant Antonio Vazquez,
motion denied.
The action is on a contract, and the only issue pleaded and tried is
whether the plaintiff entered into the contract with the defendant
Antonio Vazquez in his personal capacity or as manager of the
Natividad-Vazquez Sabani Development Co., Inc. The Court of
Appeals found that according to the preponderance of the
evidence "the sale made by Antonio Vazquez in favor of Francisco
de Borja of 4,000 cavans of palay was in his capacity as acting
president and manager of the corporation Natividad-Vazquez
Sabani Development Co., Inc." That finding of fact is final and, it
resolving the only issue involved, should be determinative of the
result.
The Court of Appeals doubly erred in ordering that the cause be
remanded to the court of origin for further trial to determine
whether the corporation had sufficient stock of palay at the time
appellant sold, 1500 cavans of palay to Kwong Ah Phoy. First, if that
point was material to the issue, it should have been proven during
the trial; and the statement of the court that it had not been
sufficiently discussed and proven was no justification for ordering
a new trial, which, by the way, neither party had solicited but against
which, on the contrary, both parties now vehemently protest.
Second, the point is, in any event, beside the issue, and this we
shall now discuss in connection with the original judgment of the
Court of Appeals which the plaintiff cross-petitioner seeks to
maintain.
The action being on a contract, and it appearing from the
preponderance of the evidence that the party liable on the
contract is the Natividad-Vazquez Sabani Development Co., Inc.
which is not a party herein, the complaint should have been
dismissed. Counsel for the plaintiff, in his brief as respondent,
argues that altho by the preponderance of the evidence the trial
court and the Court of Appeals found that Vazquez celebrated the
contract in his capacity as acting president of the corporation and
altho it was the latter, thru Vazquez, with which the plaintiff had
contracted and which, thru Vazquez, had received the sum of
P8,400 from Borja, and altho that was true from the point of view
of a legal fiction, "ello no impede que tambien sea verdad lo
alegado en la demanda de que la misma persona de Vasquez fue
la que contrato con Borja y que la misma persona de Vasquez fue
quien recibio la suma de P8,400." But such argument is invalid and
insufficient to show that the president of the corporation is
personally liable on the contract duly and lawfully entered into by
him in its behalf.
It is well known that a corporation is an artificial being invested by
law with a personality of its own, separate and distinct from that of
its stockholders and from that of its officers who manage and run
its affairs. The mere fact that its personality is owing to a legal
fiction and that it necessarily has to act thru its agents, does not
make the latter personally liable on a contract duly entered into, or
for an act lawfully performed, by them for an in its behalf. The legal
fiction by which the personality of a corporation is created is a
practical reality and necessity. Without it no corporate entities may
exists and no corporate business may be transacted. Such legal
fiction may be disregarded only when an attempt is made to use it
as a cloak to hide an unlawful or fraudulent purpose. No such thing
has been alleged or proven in this case. It has not been alleged nor
even intimated that Vazquez personally benefited by the contract
of sale in question and that he is merely invoking the legal fiction
to avoid personal liability. Neither is it contended that he entered
into said contract for the corporation in bad faith and with intent
to defraud the plaintiff. We find no legal and factual basis upon
which to hold him liable on the contract either principally or
subsidiarily.
The trial court found him guilty of negligence in the
performance of the contract and held him personally liable on
that account. On the other hand, the Court of Appeals found that
he "no solamente obro con negligencia, sino interveniendo culpa
de su parte, por lo que de acuerdo con los arts. 1102, 1103 y 1902
del Codigo Civil, el debe ser responsable subsidiariamente del pago
de la cantidad objeto de la demanda." We think both the trial
court and the Court of Appeals erred in law in so holding. They
have manifestly failed to distinguish a contractual from an
extracontractual obligation, or an obligation arising from
contract from an obligation arising from culpa aquiliana. The
fault and negligence referred to in articles 1101-1104 of the Civil
Code are those incidental to the fulfillment or nonfullfillment of
a contractual obligation; while the fault or negligence referred
to in article 1902 is the culpa aquiliana of the civil law,
homologous but not identical to tort of the common law, which
gives rise to an obligation independently of any contract. (Cf.
Manila R.R. Co. vs. Cia. Trasatlantica, 38 Phil., 875, 887-890; Cangco
vs. Manila R.R. Co., 38 Phil. 768.) The fact that the corporation,
acting thru Vazquez as its manager, was guilty of negligence in
the fulfillment of the contract, did not make Vazquez principally
or even subsidiarily liable for such negligence. Since it was the
corporation's contract, its nonfulfillment, whether due to
negligence or fault or to any other cause, made the corporation
and not its agent liable.
On the other hand if independently of the contract Vazquez by
his fault or negligence cause damaged to the plaintiff, he would
be liable to the latter under article 1902 of the Civil Code. But
then the plaintiff's cause of action should be based on culpa
aquiliana and not on the contract alleged in his complaint herein;
and Vazquez' liability would be principal and not merely subsidiary,
as the Court of Appeals has erroneously held. No such cause of
action was alleged in the complaint or tried by express or implied
consent of the parties by virtue of section 4 of Rule 17. Hence the
trial court had no jurisdiction over the issue and could not
adjudicate upon it (Reyes vs. Diaz, G.R. No. 48754.) Consequently it
was error for the Court of Appeals to remand the case to the trial
court to try and decide such issue.
It only remains for us to consider petitioner's second assignment
of error referring to the lower courts' refusal to entertain his
counterclaim for damages against the respondent Borja arising
from the bringing of this action. The lower courts having sustained
plaintiff's action. The finding of the Court of Appeals that according
to the preponderance of the evidence the defendant Vazquez
celebrated the contract not in his personal capacity but as acting
president and manager of the corporation, does not warrant his
contention that the suit against him is malicious and tortious; and
since we have to decide defendant's counterclaim upon the facts
found by the Court of Appeals, we find no sufficient basis upon
which to sustain said counterclaim. Indeed, we feel that as a matter
of moral justice we ought to state here that the indignant attitude
adopted by the defendant towards the plaintiff for having brought
this action against him is in our estimation not wholly right. Altho
from the legal point of view he was not personally liable for the
fulfillment of the contract entered into by him on behalf of the
corporation of which he was the acting president and manager, we
think it was his moral duty towards the party with whom he
contracted in said capacity to see to it that the corporation
represented by him fulfilled the contract by delivering the palay it
had sold, the price of which it had already received. Recreant to
such duty as a moral person, he has no legitimate cause for
indignation. We feel that under the circumstances he not only has
no cause of action against the plaintiff for damages but is not even
entitled to costs.
The judgment of the Court of Appeals is reversed, and the
complaint is hereby dismissed, without any finding as to costs.
Yulo, C.J., Moran, Horrilleno and Bocobo, JJ., concur.
Separate Opinions
PARAS, J., dissenting:
Upon the facts of this case as expressly or impliedly admitted in
the majority opinion, the plaintiff is entitled to a judgment against
the defendant. The latter, as acting president and manager of
Natividad-Vazquez Sabani Development Co., Inc., and with full
knowledge of the then insolvent status of his company, agreed to
sell to the plaintiff 4,000 cavans of palay. Notwithstanding the
receipt from the plaintiff of the full purchase price, the defendant
delivered only 2,488 cavans and failed and refused to deliver the
remaining 1,512 cavans and failed and refused to deliver the
remaining 1,512 cavans and a quantity of empty sacks, or their
value. Such failure resulted, according to the Court of First Instance
of Manila and the Court of Appeals, from his fault or negligence.
It is true that the cause of action made out by the complaint is
technically based on a contract between the plaintiff and Natividad-
Vazquez Sabani Development Co., Inc. which is not a party to this
case. Nevertheless, inasmuch as it was proven at the trial that the
defendant was guilty of fault in that he prevented the performance
of the plaintiff's contract and also of negligence bordering on fraud
which cause damage to the plaintiff, the error of procedure should
not be a hindrance to the rendition of a decision in accordance
with the evidence actually introduced by the parties, especially
when in such a situation we may order the necessary amendment
of the pleadings, or even consider them correspondingly amended.
As already stated, the corporation of which the defendant was
acting president and manager was, at the time he made the sale of
the plaintiff, known to him to be insolvent. As a matter of fact, said
corporation was soon thereafter dissolved. There is admitted
damage on the part of the plaintiff, proven to have been inflicted
by reason of the fault or negligence of the defendant. In the interest
of simple justice and to avoid multiplicity of suits I am therefore
impelled to consider the present action as one based on fault or
negligence and to sentence the defendant accordingly. Otherwise,
he would be allowed to profit by his own wrong under the
protective cover of the corporate existence of the company he
represented. It cannot be pretended that any advantage under the
sale inured to the benefit of Natividad-Vazquez Sabani
Development Co., Inc. and not of the defendant personally, since
the latter undoubtedly owned a considerable part of its capital.
G.R. No. L-24837 June 27, 1968
JULIAN C. SINGSON and RAMONA DEL CASTILLO, plaintiffs, vs.
BANK OF THE PHILIPPINE ISLANDS and SANTIAGO FREIXAS, in
his capacity as President of the said Bank, defendants.
CONCEPCION, C.J.:
Appeal by plaintiffs, Julian Singson and his wife, Ramona del
Castillo, from a decision of the Court of First Instance of Manila
dismissing their complaint against defendants herein, the Bank of
the Philippine Islands and Santiago Freixas.
It appears that Singson, was one of the defendants in civil case No.
23906 of the Court of First Instance, Manila, in which judgment had
been rendered sentencing him and his co-defendants therein,
namely, Celso Lobregat and Villa-Abrille & Co., to pay the sum of
P105,539.56 to the plaintiff therein, Philippine Milling Co. Singson
and Lobregat had seasonably appealed from said judgment, but
not Villa-Abrille & Co., as against which said judgment, accordingly,
became final and executory. In due course, a writ of garnishment
was subsequently served upon the Bank of the Philippine Islands
— in which the Singsons had a current account — insofar as Villa-
Abrille's credits against the Bank were concerned. What happened
thereafter is set forth in the decision appealed from, from which we
quote:
Upon receipt of the said Writ of Garnishment, a clerk of the bank
in charge of all matters of execution and garnishment, upon reading
the name of the plaintiff herein in the title of the Writ of
Garnishment as a party defendants, without further reading the
body of the said garnishment and informing himself that said
garnishment was merely intended for the deposits of defendant
Villa-Abrille & Co., Valentin Teus, Fernando F. de Villa-Abrille and
Joaquin Bona, prepared a letter for the signature of the President
of the Bank informing the plaintiff Julian C. Singson of the
garnishment of his deposits by the plaintiff in that case. Another
letter was also prepared and signed by the said President of the
Bank for the Special Sheriff dated April 17, 1963.
Subsequently, two checks issued by the plaintiff Julian C. Singson,
one for the amount of P383 in favor of B. M. Glass Service dated
April 16, 1963 and bearing No. C-424852, and check No. C-394996
for the amount of P100 in favor of the Lega Corporation, and drawn
against the said Bank, were deposited by the said drawers with the
said bank. Believing that the plaintiff Singson, the drawer of the
check, had no more control over the balance of his deposits in the
said bank, the checks were dishonored and were refused payment
by the said bank. After the first check was returned by the bank to
the B. M. Glass Service, the latter wrote plaintiff Julian C. Singson a
letter, dated April 19, 1963, advising him that his check for P383.00
bearing No. C-424852 was not honored by the bank for the reason
that his account therein had already been garnished. The said B. M.
Glass Service further stated in the said letter that they were
constrained to close his credit account with them. In view thereof,
plaintiff Julian C. Singson wrote the defendant bank a letter on April
19, 1963, claiming that his name was not included in the Writ of
Execution and Notice of Garnishment, which was served upon the
bank. The defendant President Santiago Freixas of the said bank
took steps to verify this information and after having confirmed the
same, apologized to the plaintiff Julian C. Singson and wrote him a
letter dated April 22, 1963, requesting him to disregard their letter
of April 17, 1963, and that the action of garnishment from his
account had already been removed. A similar letter was written by
the said official of the bank on April 22, 1963 to the Special Sheriff
informing him that his letter dated April 17, 1963 to the said Special
Sheriff was considered cancelled and that they had already
removed the Notice of Garnishment from plaintiff Singson's
account. Thus, the defendants lost no time to rectify the mistake
that had been inadvertently committed, resulting in the temporary
freezing of the account of the plaintiff with the said bank for a short
time.
xxx xxx xxx
On May 8, 1963, the Singsong commenced the present action
against the Bank and its president, Santiago Freixas, for damages1
in consequence of said illegal freezing of plaintiffs' account.
After appropriate proceedings, the Court of First Instance of Manila
rendered judgment dismissing the complaint upon the ground that
plaintiffs cannot recover from the defendants upon the basis of a
quasi-delict, because the relation between the parties is contractual
in nature; because this case does not fall under Article 2219 of our
Civil Code, upon which plaintiffs rely; and because plaintiffs have
not established the amount of damages allegedly sustained by
them.
The lower court held that plaintiffs' claim for damages cannot be
based upon a tort or quasi-delict, their relation with the defendants
being contractual in nature. We have repeatedly held, however,
that the existence of a contract between the parties does not
bar the commission of a tort by the one against the order and
the consequent recovery of damages therefor.2 Indeed, this view
has been, in effect, reiterated in a comparatively recent case. Thus,
in Air France vs. Carrascoso,3 involving an airplane passenger who,
despite his first-class ticket, had been illegally ousted from his first-
class accommodation and compelled to take a seat in the tourist
compartment, was held entitled to recover damages from the air-
carrier, upon the ground of tort on the latter's part, for, although
the relation between a passenger and a carrier is "contractual both
in origin and nature ... the act that breaks the contract may also be
a tort".
In view, however, of the facts obtaining in the case at bar, and
considering, particularly, the circumstance, that the wrong done
to the plaintiff was remedied as soon as the President of the
bank realized the mistake he and his subordinate employee had
committed, the Court finds that an award of nominal damages
— the amount of which need not be proven4 — in the sum of
P1,000, in addition to attorney's fees in the sum of P500, would
suffice to vindicate plaintiff's rights.5
WHEREFORE, the judgment appealed from is hereby reversed, and
another one shall be entered sentencing the defendant Bank of the
Philippine Islands to pay to the plaintiffs said sums of P1,000, as
nominal damages, and P500, as attorney's fees, apart from the
costs. It is so ordered.
Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Sanchez, Castro and
Angeles, JJ., concur.
Fernando, J., took no part.
Footnotes
G.R. No. L-39832 January 30, 1976
ILUMINADA T. TORREDA, petitioner, vs. HON. ALEJANDRO R.
BONCAROS, Judge CFI NEGROS ORIENTAL, BRANCH
VISAYAN SAWMILL, INC., ANG TAY, and SERAPION TIONSON,
respondents.
BARREDO, J.:
Petition for certiorari and mandamus to set aside the orders of
respondent court dismissing the civil action filed therewith by
petitioner, Civil Case No. 5541, for damages from the death of her
husband in a motor vehicle incident allegedly caused by the
negligence of the driver of private respondents, and to order the
reinstatement of said case for trial on the merits.
On December 15, 1972, petitioner filed the civil
aforementioned alleging inter alia that:
3. That defendants VISAYAN SAWMILL, Inc., and ANG TAY, are the
proprietors and operators of a GI-cargo truck, with plate No. 29139,
(1963), devoted to the hauling, transportation and carrying of
lumber produced from defendants' Sawmill and Timber Concession,
situated in Cawitan, municipality of Sta. Catalina, province of
Negros Oriental, to any place within the said province.
4. That defendant Serapion Tionson, is a driver by profession,
employed by his co-defendants herein, to drive and to operate the
said GI-cargo truck with plate No. 29139, in connection with
defendants' lumber business.
5. That on July 25, 1963, at around ten o'clock in the evening,
defendant Serapion Tionson, pursuant to his duties and
obligations as driver of his co-defendants, drove
aforementioned cargo truck, from defendants' lumber yard at
Cawitan, Sta. Catalina, Negros Oriental and proceeded to deliver
sawed lumber to Dumaguete City and other towns carrying a
full load of sawed lumber and passing along the National Road.
6. That the lumber carried by defendant Tionson and loaded on
his truck, was untied and carelessly arranged and as a result
thereof, after traveling over eighty (80) kilometers and before
reaching the City of Dumaguete, due to the traffic agitation and
movement of the cargo truck, the lumber inside the truck soon lost
its orderly and regular arrangement, and some of the pieces loaded
soon protruded frontwise and sidewise, beyond and outside the
body of the truck, and endangering the traffic along the National
Road.
7. That shortly before reaching the boundary of the City of
Dumaguete and just as the said cargo truck driven by defendant
Tionson, was passing along barrio Banilad of the municipality of
Bacong (a town adjacent to Dumaguete City), another cargo truck
was sighted on the same National Highway, coming in opposite
direction from Dumaguete City, going southward. (plate No. T-
V; 31650).
8. That defendant Serapion Tionson did not stop his recklessIy,
loaded and driven cargo truck; he did not even take the
necessary precautions required by circumstances, and
imprudently continued his fast, reckless and illegal nighttime
driving along the National Road.
9. That the late Pascasio Torreda was then a passenger on the other
south-bound truck, No. 31650 already mentioned, and was seated
on the front seat, left side of the driver.
10. That when defendant Tionson's cargo truck was near the
action place or on the level of the other south-bound cargo truck, the
protruding lumber inside defendants cargo truck ' struck and
fatally hit, the late PASCASIO TORREDA who, as already stated,
was then seated inside the south-bound truck, and PASCASIO
TORREDA was literally pierced and nailed by the protruding
lumber to the back of his seat killing him almost instantly.
11. That the death of the late PASCASIO TORREDA, was due to the
careless and faulty operation and management of the defendant
herein and to the careless, imprudent and illegal driving' of their
driver Serapion Tionson.
12. That PASCASIO TORREDA, at the time of his death was at the
prime of age and of manhood, and was the Manager, operator and
proprietor of a fishing business or fishing industry operated by him,
in the province of Negros Oriental and was making a profit of not
less than ONE HUNDRED THOUSAND PESOS (P100,000.00), every
year.
the
13. That due to the untimely death of the late Pascasio Torreda his
business was completely crippled and in fact, it went down soon
after his death; and the plaintiff herein not only failed to realize the
profits usually made during the lifetime of the late husband, but
was even brought to Court, for her failure to maintain and to keep
up their obligations.
14. That due to the untimely and sudden death of the late
PASCASIO TORREDA, the plaintiff herein suffered financial losses
and damages, amounting to not less than ONE HUNDRED
THOUSAND (P100,000.00) PESOS.
15. That in addition, the plaintiff suffered immense pain and
suffering, morally, mentally and physically and accordingly, has
suffered moral damages not less than FIFTY THOUSAND PESOS
(P50,000.00).
16. That plaintiff furthermore, was constrained to engage the
services of counsel, in the total sum of FIFTEEN THOUSAND PESOS
(P15,000).
17. That a criminal complaint was filed by the Chief of Police of
Bacong, Oriental Negros, against the drivers of both trucks in
1968, for homicide thru reckless imprudence and for driving the
truck in a reckless and imprudent manner, in disregard of traffic
rules and regulations and without taking the n precautions to
avoid accidents. (Criminal Case No. 7402, CFI, Neg. Oriental, Branch
11).
18. That the accused were duly arrested and they posted the
required bail-bond for their provisional or temporary liberty
19. That some time after his arrest, the accused Serapion
Tionson, jumped his bail and escaped from the jurisdiction '
jurisdiction of the Court, and allegedly went to INDONESIA a
foreign country over which this Hon. Court has no jurisdiction, and
where he is hiding until now, obviously to defeat the purpose of
criminal case No. 7402 of this Hon. Court.
20. That Criminal Case No. 7402 of this Hon. Court has been
pending in Court for over NINE (9) YEARS and it appears as if it
can no longer be prosecuted and terminated by the Court, with
respect to SERAPION TIONSON due to his absence from the
Philippines and to the lack of jurisdiction and difficulty of this Court
to reach him and to bring him back the this jurisdiction.
21. That the hearing or trial of Criminal Case No. 7402 has not even
commenced until now.
22. That up to the present time, the defendants herein, have not
done anything to alleviate the plight and suffering of the
WIDOW, the plaintiff herein, or to compensate her for the
damages suffered by her, due to the untimely death of her late
husband, despite legal demands to that effect.
23. That under the Revised Rules of Court, when a criminal
complaint is instituted, the civil action for the recovery of civil
liability, arising from the offense charged, is impliedly instituted,
unless the offended party expressly reserves his or her right to
institute it separately.
24. That in view of the escapade of defendant Tionson to a foreign
country, and the difficulty to reach him and to bring him back, and
in view furthermore of the lapse of NINE (9) YEARS, which is
sufficient to indicate the hardship if not the impotency of the Hon.
Court to bring Tionson back to this jurisdiction, — on August 19,
1972, the widow and now Plaintiff in this case, filed in Criminal Case
No. 7402 a NOTICE manifesting that "she reserves her right to file
a separate civil action, independently of the criminal case, against
the driver and his masters or employers and now defendants
herein".
25. That this civil action is filed under articles 2176-2177 of the Civil
Code; article 100 of the Rev. Penal Code; and Rule Ill, see. 2 of the
Revised Rules of Court. (Pars 3 to 25 of Annex C, pp. 30-33, Record.)
On February 16, 1973, defendants, herein private respondents, filed
a motion to dismiss "on the ground that the complaint states no
cause of action against them," claiming principally that (a) only the
person causing the injury, not his employer, can be held liable and
(b) a civil action cannot be prosecuted pending the termination of
the criminal case. After petitioner had filed her opposition, on
September 8, 1973, respondents filed a supplemental motion to
dismiss alleging that the action of petitioner based on culpa
aquiliana under Articles 2176-2177 of the Civil Code, had already
prescribed pursuant to Article 1146(2) of the Civil Code. In
opposition to said supplemental motion, petitioner argued that
her action is just a continuation of the civil action which was
deemed filed jointly with the criminal complaint in Criminal Case
No. 7402, as alleged in her complaint, and since that case is still
pending and, moreover, because defendant Tionson escaped
the jurisdiction of the court, the prescriptive period for her civil
action has been suspended, the motion should be denied.
On January 17, 1974, respondent court issued the impugned order
of dismissal thus:
Acting on the Motion to Dismiss and Supplemental Motion to
Dismiss filed by counsel of defendants, as well as the Oppositions
thereto filed by counsel of plaintiff, and it appearing that the
complaint which is based on Art. 2177 of the Civil Code quasi delict
was filed only on December 15, 1972, or more than nine years after
the incident (July 25, 1963) complained of, this Court rules that
plaintiff's action has prescribed under Art. 1146 of the New Civil
Code.
WHEREFORE, the Supplemental Motion to Dismiss is hereby
granted and this case ordered dismissed. (Page 17, Record.)
and, thereafter, acting on petitioner's motion for reconsideration,
the following:
ORDER
The instant action is based on Articles 2176 and 2177 of the
Civil Code. It appears that the acts complained of took place on
July 25, 1973 and that the Information for Reckless Imprudence
Resulting in homicide was filed on January 28, 1964. Since the
trial of the said criminal case has not yet begun, the offended
party, the plaintiff herein, filed on August 19, 1972 a formal
notice of reservation to institute a separate civil action which
she filed on December 15, 1972 which is now the case at bar.
The defendants, Visayan Sawmill, Inc. and Ang Tay, filed a
Motion to dismiss the complaint for lack of cause of action
which was opposed b the plaintiff. Subsequently, the same
defendants filed a supplemental motion to dismiss on the
ground that the action has now prescribed.
The Court in its Order dated January 17, 1974, dismissed the
complaint on the ground of prescription. The plaintiff moved to
reconsider the Order on the mound that the same is contrary to
law which as opposed by the defendants. The issue before this
Court is whether the action has already prescribed or not.
The Motion for Reconsideration should be denied. In the case of
Corpus vs. Paje, 28 SCRA 1062, reckless imprudence is not one of
those cases covered by Article 33 of the Civil Code and as such,
therefore, there is no independent civil action that can be
prosecuted the offended party. That offended party is, however, not
left without a remedy. She can file an action for quasi-delict under
the Civil Code, subject to Article 1146 of the same, as to the
prescriptive period.
Since the instant action was filed only on December 15, 1972, the
present action has therefore clearly prescribed pursuant to Article
1146, paragraph 2, the filing of the notice to file a separate civil
action on August 19, 1972 notwithstanding, because, in the first
place, there was nothing to be reserved and the filing of the
Information in the criminal case did not suspend the running of the
prescriptive period for the filing of an action nor the notice of
reservation pursuant to Article 2176 of the Civil Code. (Corpus vs.
Paje, supra; Capuno vs. Pepsi Cola Bottling Co., et al., 13 SCRA 659)
On the other hand, We note that the original motion to dismiss of
respondents which was filed on February 16, 1973 did not allege
prescription. It was only in the supplemental motion to dismiss filed
more than six months later, on September 8, 1973, that such
defense was interposed for the first time. Under the peculiar
circumstances of this case, where the petitioner would be left
without a remedy should respondents be excused for belatedly
invoking prescription, equity and substantial justice make it
preferable to apply Section 2 of Rule 9 which provides that defenses
and objections not pleaded either in a motion to dismiss or in the
answer are deemed waived. While there may be instances and
situations justifying a relaxation of this rule, Our considered view is
that in the circumstances of the instant case, the ends of justice
would be better served by applying the general rule, considering
further that respondents have not given any reason at all as to why
their defense of 'prescription was not invoked earlier, instead of in
a supplemental motion, when the basis thereof was already existing
and evident even before the filing of the original motion.
WHEREFORE, the petition is granted. The orders of respondent
court of January 17 and November 20, 1974 are hereby set aside
and respondent court is ordered to proceed with the trial of Civil
Case No. 5541 on the merit Costs against private respondents.
Fernando (Chairman), Antonio, Aquino and Concepcion, Jr., JJ.,
concur.

WHEREFORE, the Motion for Reconsideration is hereby DENIED.

(Page 21, Record.)

In a way and from a very technical viewpoint, there could be

merit in respondents' pose that petitioner's subject action,
considered in its culpa aquiliana aspect, has already prescribed.
Regardless of the criminal case and the civil action deemed
joined with it, the case of quasi-delict could have been filed
separately, for this kind of action is entirely independent of the
criminal responsibility of the offender. The civil action joined with
the criminal case is predicated on civil liability arising from the
offense and is distinct and different from the action on quasi-delict
arising from the same act. As explicitly laid down in Article 2177 of
the Civil Code, "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."