1. G.R. No.

1719

January 23, 1907

M. H., RAKES, plaintiff-appellee, vs. THE ATLANTIC, GULF AND PACIFIC COMPANY, defendant-appellant.
A. D. Gibbs for appellant.
F. G. Waite, & Thimas Kepner for appellee.
TRACEY, J.:
This is an action for damages. The plaintiff, one of a gang of eight negro laborers in the employment of the defendant, was
at work transporting iron rails from a barge in the harbor to the company's yard near the malecon in Manila. Plaintiff
claims that but one hand car was used in this work. The defendant has proved that there were two immediately following
one another, upon which were piled lengthwise seven rails, each weighing 560 pounds, so that the ends of the rails lay
upon two crosspieces or sills secured to the cars, but without side pieces or guards to prevent them from slipping off.
According to the testimony of the plaintiff, the men were either in the rear of the car or at its sides. According to that
defendant, some of them were also in front, hauling by a rope. At a certain spot at or near the water's edge the track
sagged, the tie broke, the car either canted or upset, the rails slid off and caught the plaintiff, breaking his leg, which was
afterwards amputated at about the knee.
This first point for the plaintiff to establish was that the accident happened through the negligence of the defendant. The
detailed description by the defendant's witnesses of the construction and quality of the track proves that if was up to the
general stranded of tramways of that character, the foundation consisting on land of blocks or crosspieces of wood, by 8
inches thick and from 8 to 10 feet long laid, on the surface of the ground, upon which at a right angle rested stringers of
the same thickness, but from 24 to 30 feet in length. On the across the stringers the parallel with the blocks were the ties to
which the tracks were fastened. After the road reached the water's edge, the blocks or crosspieces were replaced with
pilling, capped by timbers extending from one side to the other. The tracks were each about 2 feet wide and the two inside
rails of the parallel tracks about 18 inches apart. It was admitted that there were no side pieces or guards on the car; that
where no ends of the rails of the track met each other and also where the stringers joined, there were no fish plates. the
defendant has not effectually overcome the plaintiff's proof that the joints between the rails were immediately above the
joints between the underlying stringers.
The cause of the sagging of the tracks and the breaking of the tie, which was the immediate occasion of the accident, is
not clear in the evidence, but is found by the trial court and is admitted in the briefs and in the argument to have been the
dislodging of the crosspiece or piling under the stringer by the water of the bay raised by a recent typhoon. The
superintendent of the company attributed it to the giving way of the block laid in the sand. No effort was made to repair
the injury at the time of the occurrence. According to plaintiffs witnesses, a depression of the track, varying from one half
inch to one inch and a half, was therafter apparent to the eye, and a fellow workman of the plaintiff swears that the day
before the accident he called the attention of McKenna, the foreman, to it and asked by simply straightening out the
crosspiece, resetting the block under the stringer and renewing the tie, but otherwise leaving the very same timbers as
before. It has not proven that the company inspected the track after the typhoon or had any proper system of inspection.
In order to charge the defendant with negligence, it was necessary to show a breach of duty on its part in failing either to
properly secure the load on iron to vehicles transporting it, or to skillfully build the tramway or to maintain it in proper
condition, or to vigilantly inspect and repair the roadway as soon as the depression in it became visible. It is upon the
failure of the defendant to repair the weakened track, after notice of its condition, that the judge below based his
judgment.
This case presents many important matters for our decision, and first among them is the standard of duty which we shall
establish in our jurisprudence on the part of employees toward employees.
The lack or the harshness of legal rules on this subject has led many countries to enact designed to put these relations on a
fair basis in the form of compensation or liability laws or the institution of insurance. In the absence of special legislation
we find no difficulty in so applying the general principles of our law as to work out a just result.
Article 1092 of the Civil Code provides:

Civil obligations, arising from crimes or misdemeanors, shall be governed by the provisions of the Penal Code.
And article 568 of the latter code provides:
He who shall execute through reckless negligence an act that if done with malice would constitute a grave crime,
shall be punished.
And article 590 provides that the following shall be punished:
4. Those who by simple imprudence or negligence, without committing any infraction of regulations, shall cause
an injury which, had malice intervened, would have constituted a crime or misdemeanor.
And finally by articles 19 and 20, the liability of owners and employers for the faults of their servants and representatives
is declared to be civil and subsidiary in its character.
It is contented 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 tract, 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 11 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 preceding article is demandable, not only for personal acts and
omissions, but also for those of the persons for whom they should be responsible.
The father, and on his death or incapacity, the mother, is liable for the damages caused by the minors who live
with them.
xxx

xxx

xxx

Owners or directors of an establishment or enterprise are equally liable for 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 damages.
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 law " 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 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 n ever 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 by 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 citations 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 by
law. Where an individual is civilly liable for a negligent act or omission, it is not required that the inured 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 process of prosecution, or in so far as they determinate 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 election of the injured person. Inasmuch as no criminal 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 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 1092 and 1093. More than this, however, it can not be said to fall
within the class of acts unpunished by the law, the consequences 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 and growing out of preexisting
duties of the parties to one another. But were 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 the 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 that injured bystander would originate in the negligent act itself. This distinction is
thus clearly set forth by Manresa in his commentary on article 1093.
We are with reference to such obligations, that culpa, or negligence, may be understood in two difference senses;
either as culpa, substantive and independent, which on account of its origin arises in an obligation between two
persons not formerly bound by any other obligation; or as an incident in the performance of an obligation; or as
already existed, which can not be presumed to exist without the other, and which increases the liability arising
from the already exiting obligation.
Of these two species of culpa the first one mentioned, existing by itself, may be also considered as a real source of
an independent obligation, and, as chapter 2, title 16 of this book of the code is devoted to it, it is logical to
presume that the reference contained in article 1093 is limited thereto and that it does not extend to those
provisions relating to the other species of culpa (negligence), the nature of which we will discuss later. (Vol. 8, p.
29.)
And in his commentary on articles 1102 and 1104 he says that these two species of negligence may be somewhat inexactly
described as contractual and extra-contractual, the letter being the culpa aquiliana of the Roman law and not entailing so
strict an obligation as the former. This terminology is unreservedly accepted by Sanchez-Roman (Derecho Civil, fourth
section, Chapter XI, Article II, No. 12), and the principle stated is supported be decisions of the supreme court of Spain,
among them those of November 20, 1896 (80 Jurisprudencia Civil, No. 151), and June 27, 1894 (75 Jurisprudencia Civil,
No. 182). The contract is one for hire and not one of mandate. (March 10, 1897, 81 Jurisprudencia Civil, No. 107.)
Spanish Jurisprudencia prior to the adoption of the Working Men's Accident Law of January 30, 1900, throws uncertain
light on the relation between master and workman. Moved by the quick industrial development of their people, the courts

of France early applied to the subject the principles common to the law of both countries, which are lucidly discussed by
the leading French commentators.
The original French theory, resting the responsibility of owners of industrial enterprises upon articles 1382, 1383, and
1384 of the Code Napoleon, corresponding in scope to articles 1902 and 1903 of the Spanish Code, soon yielded to the
principle that the true basis is the contractual obligation of the employer and employee. (See 18 Dalloz, 196,
Title Travail, 331.)
Later the hardships resulting from special exemptions inserted in contracts for employment led to the discovery of a third
basis for liability in an article of he French Code making the possessor of any object answerable for damage done by it
while in his charge. Our law having no counterpart of this article, applicable to every kind of object, we need consider
neither the theory growing out of it nor that of "professional risk" more recently imposed by express legislation, but rather
adopting the interpretation of our Civil Code above given, find a rule for this case in the contractual obligation. This
contractual obligation, implied from the relation and perhaps so inherent in its nature to be invariable by the parties, binds
the employer to provide safe appliances for the use of the employee, thus closely corresponding to English and American
Law. On these principles it was the duty of the defendant to build and to maintain its track in reasonably sound condition,
so as to protect its workingmen from unnecessary danger. It is plain that in one respect or the other it failed in its duty,
otherwise the accident could not have occurred; consequently the negligence of the defendant is established.
Another contention of the defense is that the injury resulted to the plaintiff as a risk incident to his employment and, as
such, one assumed by him. It is evident that this can not be the case if the occurrence was due to the failure to repair the
track or to duly inspect, it for the employee is not presumed to have stipulated that the employer might neglect his legal
duty. Nor may it be excused upon the ground that the negligence leading to the accident was that of a fellow-servant of the
injured man. It is not apparent to us that the intervention of a third person can relieve the defendant from the performance
of its duty nor impose upon the plaintiff the consequences of an act or omission not his own. Sua cuique culpa nocet. This
doctrine, known as "the fellow-servant, rule," we are not disposed to introduce into our jurisprudence. Adopted in England
by Lord Abinger in the case of Prescottvs. Fowler (3 Meeson & Welsby, 1) in 1837, it has since been effectually abrogated
by "the Employers' Liability Acts" and the "Compensation Law." The American States which applied it appear to be
gradually getting rid of it; for instance, the New York State legislature of 1906 did away with it in respect to railroad
companies, and had in hand a scheme for its total abolition. It has never found place in the civil law of continental Europe.
(Dalloz, vol. 39, 1858, Title Responsibilite, 630, and vol. 15, 1895, same title, 804. Also more recent instances in FuzierHerman, Title Responsibilite Civile, 710.)
The French Cour de Cassation clearly laid down the contrary principle in its judgment of June 28, 1841, in the case of
Reygasse, and has since adhered to it.
The most controverted question in the case is that of the negligence of the plaintiff, contributing to the accident, to what
extent it existed in fact and what legal effect is to be given it. In two particulars is he charged with carelessness:
First. That having noticed the depression in the track he continued his work; and
Second. That he walked on the ends of the ties at the side of the car instead of along the boards, either before or behind it.
As to the first point, the depression in the track night indicate either a serious or a rival difficulty. There is nothing in the
evidence to show that the plaintiff did or could see the displaced timber underneath the sleeper. The claim that he must
have done so is a conclusion drawn from what is assumed to have been a probable condition of things not before us, rather
than a fair inference from the testimony. While the method of construction may have been known to the men who had
helped build the road, it was otherwise with the plaintiff who had worked at this job less than two days. A man may easily
walk along a railway without perceiving a displacement of the underlying timbers. The foreman testified that he knew the
state of the track on the day of the accident and that it was then in good condition, and one Danridge, a witness for the
defendant, working on the same job, swore that he never noticed the depression in the track and never saw any bad place
in it. The sagging of the track this plaintiff did perceive, but that was reported in his hearing to the foreman who neither
promised nor refused to repair it. His lack of caution in continuing at his work after noticing the slight depression of the
rail was not of so gross a nature as to constitute negligence, barring his recovery under the severe American rule. On this
point we accept the conclusion of the trial judge who found as facts that "the plaintiff did not know the cause of the one

rail being lower than then other" and "it does not appear in this case that the plaintiff knew before the accident occurred
that the stringers and rails joined in the same place."
Were we not disposed to agree with these findings they would, nevertheless, be binding upon us, because not "plainly and
manifestly against the weight of evidence," as those words of section 497, paragraph 3 of the Code of Civil Procedure
were interpreted by the Supreme Court of the United States in the De la Rama case (201 U. S., 303).
In respect of the second charge of negligence against the plaintiff, the judgment below is not so specific. While the judge
remarks that the evidence does not justify the finding that the car was pulled by means of a rope attached to the front end
or to the rails upon it, and further that the circumstances in evidence make it clear that the persons necessary to operate the
car could not walk upon the plank between the rails and that, therefore, it was necessary for the employees moving it to
get hold upon it as best they could, there is no specific finding upon the instruction given by the defendant to its
employees to walk only upon the planks, nor upon the necessity of the plaintiff putting himself upon the ties at the side in
order to get hold upon the car. Therefore the findings of the judge below leave the conduct of the plaintiff in walking
along the side of the loaded car, upon the open ties, over the depressed track, free to our inquiry.
While the plaintiff and his witnesses swear that not only were they not forbidden to proceed in this way, but were
expressly directed by the foreman to do so, both the officers of the company and three of the workmen testify that there
was a general prohibition frequently made known to all the gang against walking by the side of the car, and the foreman
swears that he repeated the prohibition before the starting of this particular load. On this contradiction of proof we think
that the preponderance is in favor of the defendant's contention to the extent of the general order being made known to the
workmen. If so, the disobedience of the plaintiff in placing himself in danger contributed in some degree to the injury as a
proximate, although not as its primary cause. This conclusion presents sharply the question, What effect is to be given
such an act of contributory negligence? Does it defeat a recovery, according to the American rule, or is it to be taken only
in reduction of damages?
While a few of the American States have adopted to a greater or less extent the doctrine of comparative negligence,
allowing a recovery by a plaintiff whose own act contributed to his injury, provided his negligence was slight as compared
with that of the defendant, and some others have accepted the theory of proportional damages, reducing the award to a
plaintiff in proportion to his responsibility for the accident, yet the overwhelming weight of adjudication establishes the
principle in American jurisprudence that any negligence, however slight, on the part of the person injured which is one of
the causes proximately contributing to his injury, bars his recovery. (English and American Encyclopedia of law, Titles
"Comparative Negligence" and Contributory Negligence.")
In Grant Trunk Railway Company vs. Ives (144 U. S., 408, at page 429) the Supreme Court of the United States thus
authoritatively states the present rule of law:
Although the defendant's' negligence may have been the primary cause of the injury complained of, yet an action
for such injury can not be maintained if the proximate and immediate cause of the injury can be traced to the want
of ordinary care and caution in the person injured; subject to this qualification, which has grown up in recent
years (having been first enunciated in Davies vs. Mann, 10 M. & W., 546) that the contributory negligence of the
party injured will not defeat the action if it be shown that the defendant might, by the exercise of reasonable care
and prudence, have avoided the consequences of the injured party's negligence.
There are may cases in the supreme court of Spain in which the defendant was exonerated, but when analyzed they prove
to have been decided either upon the point that he was not negligent or that the negligence of the plaintiff was the
immediate cause of the casualty or that the accident was due to casus fortuitus. Of the first class in the decision of January
26, 1887 (38 Jurisprudencia Criminal, No. 70), in which a railway employee, standing on a car, was thrown therefrom
and killed by the shock following the backing up of the engine. It was held that the management of the train and engine
being in conformity with proper rules of the company, showed no fault on its part.
Of the second class are the decision of the 15th of January, the 19th of February, and the 7th of March, 1902, stated in
Alcubilla's Index of that year; and of the third class the decision of the 4th of June, 1888 (64Jurisprudencia Civil, No. 1),
in which the breaking down of plaintiff's dam by the logs of the defendant impelled against it by the Tajo River, was held
due to a freshet as a fortuitous cause.

The decision of the 7th of March, 1902, on which stress has been laid, rested on two bases, one, that the defendant was not
negligent, because expressly relieved by royal order from the common obligation imposed by the police law of
maintaining a guard at the road crossing; the other, because the act of the deceased in driving over level ground with
unobstructed view in front of a train running at speed, with the engine whistle blowing was the determining cause of the
accident. It is plain that the train was doing nothing but what it had a right to do and that the only fault lay with the injured
man. His negligence was not contributory, it was sole, and was of such an efficient nature that without it no catastrophe
could have happened.
On the other hand, there are many cases reported in which it seems plain that the plaintiff sustaining damages was not free
from contributory negligence; for instance, the decision of the 14th of December, 1894 (76Jurisprudencia Civil, No. 134),
in which the owner of a building was held liable for not furnishing protection to workmen engaged in hanging out flags,
when the latter must have perceived beforehand the danger attending the work.
None of those cases define the effect to be given the negligence of a plaintiff which contributed to his injury as one of its
causes, though not the principal one, and we are left to seek the theory of the civil law in the practice of other countries.
In France in the case of Marquant, August 20, 1879, the cour de cassation held that the carelessness of the victim did not
civilly relieve the person without whose fault the accident could not have happened, but that the contributory negligence
of the injured man had the effect only of reducing the damages. The same principle was applied in the case of Recullet,
November 10, 1888. and that of Laugier of the 11th of November, 1896. (Fuzier-Herman, Title Responsibilite Cirile, 411,
412.) Of like tenor are citations in Dalloz (vol. 18, 1806, Title Trail, 363, 364, and vol. 15, 1895, Title Responsibilite, 193,
198).
In the Canadian Province of Quebee, which has retained for the most part the French Civil Law, now embodied in a code
following the Code Napoleon, a practice in accord with that of France is laid down in many cases collected in the
annotations to article 1053 of the code edited by Beauchamps, 1904. One of these is Luttrell vs. Trottier, reported in La
Revue de Jurisprudence, volume 6, page 90, in which the court of Kings bench, otherwise known as the court of appeals,
the highest authority in the Dominion of Canada on points of French law, held that contributory negligence did not
exonerate the defendants whose fault had been the immediate cause of the accident, but entitled him to a reduction of
damages. Other similar cases in the provincial courts have been overruled by appellate tribunals made up of common law
judges drawn from other provinces, who have preferred to impose uniformally throughout the Dominion the English
theory of contributory negligence. Such decisions throw no light upon the doctrines of the civil law. Elsewhere we find
this practice embodied in legislation; for instance, section 2 of article 2398 of the Code of Portugal reads as follows:
If in the case of damage there was fault or negligence on the part of the person injured or in the part of some one
else, the indemnification shall be reduced in the first case, and in the second case it shall be appropriated in
proportion to such fault or negligence as provided in paragraphs 1 and 2 of section 2372.
And in article 1304 of the Austrian Code provides that the victim who is partly changeable with the accident shall stand
his damages in proportion to his fault, but when that proportion is incapable of ascertainment, he shall share the liability
equally with the person principally responsible. The principle of proportional damages appears to be also adopted in
article 51 of the Swiss Code. Even in the United States in admirality jurisdictions, whose principles are derived from the
civil law, common fault in cases of collision have been disposed of not on the ground of contradictor negligence, but on
that of equal loss, the fault of the one part being offset against that of the other. (Ralli vs. Troop, 157 U. S. 386; 97.)
The damage of both being added together and the sum equally divided, a decree is entered in favor of the vessel sustaining
the greater loss against the other for the excess of her damages over one-half of the aggregate sum. (The Manitoba, 122 U.
S., 97)
Exceptional practice appears to prevail in maritime law in other jurisdictions. The Spanish Code of Commerce, article
827, makes each vessel for its own damage when both are the fault; this provision restricted to a single class of the
maritime accidents, falls for short of a recognition of the principle of contributory negligence as understood in American
Law, with which, indeed, it has little in common. This is a plain from other articles of the same code; for instance, article
829, referring to articles 826, 827, and 828, which provides: "In the cases above mentioned the civil action of the owner
against the person liable for the damage is reserved, as well as the criminal liability which may appear."

The rule of the common law, a hard and fast one, not adjustable with respects of the faults of the parties, appears to have
grown out the original method of trial by jury, which rendered difficult a nice balancing of responsibilities and which
demanded an inflexible standard as a safeguard against too ready symphaty for the injured. It was assumed that an exact
measure of several concurring faults was unattainable.
The reason why, in cases of mutual concurring negligence, neither party can maintain an action against the other,
is, not the wrong of the one is set off against the wrong of the other; it that the law can not measure how much of
the damage suffered is attributable to the plaintiff's own fault. If he were allowed to recover, it might be that he
would obtain from the other party compensation for hiss own misconduct. (Heil vs.Glanding, 42 Penn. St. Rep.,
493, 499.)
The parties being mutually in fault, there can be no appointment of damages. The law has no scales to determine
in such cases whose wrongdoing weighed most in the compound that occasioned the mischief.
(Railroad vs. Norton, 24 Penn. St. 565, 469.)
Experience with jury trials in negligence cases has brought American courts to review to relax the vigor of the rule by
freely exercising the power of setting aside verdicts deemed excessive, through the device of granting new trials, unless
reduced damages are stipulated for, amounting to a partial revision of damages by the courts. It appears to us that the
control by the court of the subject matter may be secured on a moral logical basis and its judgment adjusted with greater
nicety to the merits of the litigants through the practice of offsetting their respective responsibilities. In the civil law
system the desirable end is not deemed beyond the capacity of its tribunals.
Whatever may prove to be the doctrine finally adopted in Spain or in other countries under the stress and counter stress of
novel schemers of legislation, we find the theory of damages laid down in the judgment the most consistent with the
history and the principals of our law in these Islands and with its logical development.
Difficulty seems to be apprehended in deciding which acts of the injured party shall be considered immediate causes of
the accident. The test is simple. Distinction must be between the accident and the injury, between the event itself, without
which there could have been no accident, and those acts of the victim not entering into it, independent of it, but
contributing under review was the displacement of the crosspiece or the failure to replace it. this produced the event
giving occasion for damages that is, the shinking of the track and the sliding of the iron rails. To this event, the act of
the plaintiff in walking by the side of the car did not contribute, although it was an element of the damage which came to
himself. Had the crosspiece been out of place wholly or partly thorough his act of omission of duty, the last would have
been one of the determining causes of the event or accident, for which he would have been responsible. Where he
contributes to the principal occurrence, as one of its determining factors, he can not recover. Where, in conjunction with
the occurrence, he contributes only to his own injury, he may recover the amount that the defendant responsible for the
event should pay for such injury, less a sum deemed a suitable equivalent for his own imprudence.
Accepting, though with some hesitation, the judgment of the trial court, fixing the damage incurred by the plaintiff at
5,000 pesos, the equivalent of 2,500 dollars, United States money, we deduct therefrom 2,500 pesos, the amount fairly
attributable to his negligence, and direct judgment to be entered in favor of the plaintiff for the resulting sum of 2,500
pesos, with cost of both instances, and ten days hereafter let the case be remanded to the court below for proper action. So
ordered.
2. G.R. No. L-48006

July 8, 1942

FAUSTO BARREDO, petitioner, vs. SEVERINO GARCIA and TIMOTEA ALMARIO, respondents.
Celedonio P. Gloria and Antonio Barredo for petitioner.
Jose G. Advincula for 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 dao 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 Espaola" (Vol. XXVII, p. 414) says:
El concepto juridico de la responsabilidad civil abarca diversos aspectos y comprende a diferentes personas. Asi,
existe una responsabilidad civil propiamente dicha, que en ningun casl lleva aparejada responsabilidad criminal
alguna, y otra que es consecuencia indeclinable de la penal que nace de todo delito o falta."
The juridical concept of civil responsibility has various aspects and comprises different persons. Thus, there is a
civil responsibility, properly speaking, which in no case carries with it any criminal responsibility, and another
which is a necessary consequence of the penal liability as a result of every felony or misdemeanor."
Maura, an outstanding authority, was consulted on the following case: There had been a collision between two trains
belonging respectively to the Ferrocarril Cantabrico and the Ferrocarril del Norte. An employee of the latter had been
prosecuted in a criminal case, in which the company had been made a party as subsidiarily responsible in civil damages.
The employee had been acquitted in the criminal case, and the employer, the Ferrocarril del Norte, had also been
exonerated. The question asked was whether the Ferrocarril Cantabrico could still bring a civil action for damages against
the Ferrocarril del Norte. Maura's opinion was in the affirmative, stating in part (Maura, Dictamenes, Vol. 6, pp. 511-513):
Quedando las cosas asi, a proposito de la realidad pura y neta de los hechos, todavia menos parece sostenible que
exista cosa juzgada acerca de la obligacion civil de indemnizar los quebrantos y menoscabos inferidos por el
choque de los trenes. El titulo en que se funda la accion para demandar el resarcimiento, no puede confundirse
con las responsabilidades civiles nacidas de delito, siquiera exista en este, sea el cual sea, una culpa rodeada de
notas agravatorias que motivan sanciones penales, mas o menos severas. La lesion causada por delito o falta en

los derechos civiles, requiere restituciones, reparaciones o indemnizaciones, que cual la pena misma ataen al
orden publico; por tal motivo vienen encomendadas, de ordinario, al Ministerio Fiscal; y claro es que si por esta
via se enmiendan los quebrantos y menoscabos, el agraviado excusa procurar el ya conseguido desagravio; pero
esta eventual coincidencia de los efectos, no borra la diversidad originaria de las acciones civiles para pedir
indemnizacion.
Estas, para el caso actual (prescindiendo de culpas contractuales, que no vendrian a cuento y que tiene otro
regimen), dimanan, segun el articulo 1902 del Codigo Civil, de toda accion u omision, causante de daos o
perjuicios, en que intervenga culpa o negligencia. Es trivial que acciones semejantes son ejercitadas ante los
Tribunales de lo civil cotidianamente, sin que la Justicia punitiva tenga que mezclarse en los asuntos. Los
articulos 18 al 21 y 121 al 128 del Codigo Penal, atentos al espiritu y a los fines sociales y politicos del mismo,
desenvuelven y ordenan la materia de responsabilidades civiles nacidas de delito, en terminos separados del
regimen por ley comun de la culpa que se denomina aquiliana, por alusion a precedentes legislativos del Corpus
Juris. Seria intempestivo un paralelo entre aquellas ordenaciones, y la de la obligacion de indemnizar a titulo de
culpa civil; pero viene al caso y es necesaria una de las diferenciaciones que en el tal paralelo se notarian.
Los articulos 20 y 21 del Codigo Penal, despues de distribuir a su modo las responsabilidades civiles, entre los
que sean por diversos conceptos culpables del delito o falta, las hacen extensivas a las empresas y los
establecimientos al servicio de los cuales estan los delincuentes; pero con caracter subsidiario, o sea, segun el
texto literal, en defecto de los que sean responsables criminalmente. No coincide en ello el Codigo Civil, cuyo
articulo 1903, dice; La obligacion que impone el articulo anterior es exigible, no solo por los actos y omisiones
propios, sino por los de aquellas personas de quienes se debe responder; personas en la enumeracion de las
cuales figuran los dependientes y empleados de los establecimientos o empresas, sea por actos del servicio, sea
con ocasion de sus funciones. Por esto acontece, y se observa en la jurisprudencia, que las empresas, despues de
intervenir en las causas criminales con el caracter subsidiario de su responsabilidad civil por razon del delito, son
demandadas y condenadas directa y aisladamente, cuando se trata de la obligacion, ante los tribunales civiles.
Siendo como se ve, diverso el titulo de esta obligacion, y formando verdadero postulado de nuestro regimen
judicial la separacion entre justicia punitiva y tribunales de lo civil, de suerte que tienen unos y otros normas de
fondo en distintos cuerpos legales, y diferentes modos de proceder, habiendose, por aadidura, abstenido de asistir
al juicio criminal la Compaia del Ferrocarril Cantabrico, que se reservo ejercitar sus acciones, parece innegable
que la de indemnizacion por los daos y perjuicios que le irrogo el choque, no estuvo sub judice ante el Tribunal
del Jurado, ni fue sentenciada, sino que permanecio intacta, al pronunciarse el fallo de 21 de marzo. Aun cuando
el veredicto no hubiese sido de inculpabilidad, mostrose mas arriba, que tal accion quedaba legitimamente
reservada para despues del proceso; pero al declararse que no existio delito, ni responsabilidad dimanada de
delito, materia unica sobre que tenian jurisdiccion aquellos juzgadores, se redobla el motivo para la obligacion
civil ex lege, y se patentiza mas y mas que la accion para pedir su cumplimiento permanece incolume, extraa a
la cosa juzgada.
As things are, apropos of the reality pure and simple of the facts, it seems less tenable that there should beres
judicata with regard to the civil obligation for damages on account of the losses caused by the collision of the
trains. The title upon which the action for reparation is based cannot be confused with the civil
responsibilities born of a crime, because there exists in the latter, whatever each nature, a culpasurrounded with
aggravating aspects which give rise to penal measures that are more or less severe. The injury caused by a felony
or misdemeanor upon civil rights requires restitutions, reparations, or indemnifications which, like the penalty
itself, affect public order; for this reason, they are ordinarily entrusted to the office of the prosecuting attorney;
and it is clear that if by this means the losses and damages are repaired, the injured party no longer desires to seek
another relief; but this coincidence of effects does not eliminate the peculiar nature of civil actions to ask for
indemnity.
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 theobligation, 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 Compaa del Ferrocarril Cantabrico has abstained from
taking part in the criminal case and has reserved the right to exercise its actions, it seems undeniable that the
action for indemnification for the losses and damages caused to it by the collision was not sub judice before
the Tribunal del Jurado, nor was it the subject of a sentence, but it remained intact when the decision of March 21
was rendered. Even if the verdict had not been that of acquittal, it has already been shown that such action had
been legitimately reserved till after the criminal prosecution; but because of the declaration of the non-existence
of the felony and the non-existence of the responsibility arising from the crime, which was the sole subject matter
upon which the Tribunal del Juradohad jurisdiction, there is greater reason for the civil obligation ex lege, and it
becomes clearer that the action for its enforcement remain intact and is not res judicata.
Laurent, a jurist who has written a monumental work on the French Civil Code, on which the Spanish Civil Code is
largely based and whose provisions on cuasi-delito or culpa extra-contractual are similar to those of the Spanish Civil
Code, says, referring to article 1384 of the French Civil Code which corresponds to article 1903, Spanish Civil Code:
The action can be brought directly against the person responsible (for another), without including the author of the
act. The action against the principal is accessory in the sense that it implies the existence of a prejudicial act
committed by the employee, but it is not subsidiary in the sense that it can not be instituted till after the judgment
against the author of the act or at least, that it is subsidiary to the principal action; the action for responsibility (of
the employer) is in itself a principal action. (Laurent, Principles of French Civil Law, Spanish translation, Vol. 20,
pp. 734-735.)
Amandi, in his "Cuestionario del Codigo Civil Reformado" (Vol. 4, pp. 429, 430), declares that the responsibility of the
employer is principal and not subsidiary. He writes:
Cuestion 1. La responsabilidad declarada en el articulo 1903 por las acciones u omisiones de aquellas personas
por las que se debe responder, es subsidiaria? es principal? Para contestar a esta pregunta es necesario saber, en
primer lugar, en que se funda el precepto legal. Es que realmente se impone una responsabilidad por una falta
ajena? Asi parece a primera vista; pero semejante afirmacion seria contraria a la justicia y a la maxima universal,
segun la que las faltas son personales, y cada uno responde de aquellas que le son imputables. La responsabilidad
de que tratamos se impone con ocasion de un delito o culpa, pero no por causa de ellos, sino por causa del causi
delito, esto es, de la imprudencia o de la negligencia del padre, del tutor, del dueo o director del establecimiento,
del maestro, etc. Cuando cualquiera de las personas que enumera el articulo citado (menores de edad,
incapacitados, dependientes, aprendices) causan un dao, la ley presume que el padre, el tutor, el maestro, etc.,
han cometido una falta de negligencia para prevenir o evitar el dao. Esta falta es la que la ley castiga. No hay,
pues, responsabilidad por un hecho ajeno, sino en la apariencia; en realidad la responsabilidad se exige por un
hecho propio. La idea de que esa responsabilidad sea subsidiaria es, por lo tanto, completamente inadmisible.

Question No. 1. Is the responsibility declared in article 1903 for the acts or omissions of those persons for who
one is responsible, subsidiary or principal? In order to answer this question it is necessary to know, in the first
place, on what the legal provision is based. Is it true that there is a responsibility for the fault of another person? It
seems so at first sight; but such assertion would be contrary to justice and to the universal maxim that all faults are
personal, and that everyone is liable for those faults that can be imputed to him. The responsibility in question is
imposed on the occasion of a crime or fault, but not because of the same, but because of the cuasi-delito, that is to
say, the imprudence or negligence of the father, guardian, proprietor or manager of the establishment, of the
teacher, etc. Whenever anyone of the persons enumerated in the article referred to (minors, incapacitated persons,
employees, apprentices) causes any damage, the law presumes that the father, guardian, teacher, etc. have
committed an act of negligence in not preventing or avoiding the damage. It is this fault that is condemned by the
law. It is, therefore, only apparent that there is a responsibility for the act of another; in reality the responsibility
exacted is for one's own act. The idea that such responsibility is subsidiary is, therefore, completely inadmissible.
Oyuelos, in his "Digesto: Principios, Doctrina y Jurisprudencia, Referentes al Codigo Civil Espaol," says in Vol. VII, p.
743:
Es decir, no responde de hechos ajenos, porque se responde solo de su propia culpa, doctrina del articulo 1902;
mas por excepcion, se responde de la ajena respecto de aquellas personas con las que media algun nexo o vinculo,
que motiva o razona la responsabilidad. Esta responsabilidad, es directa o es subsidiaria? En el orden penal, el
Codigo de esta clase distingue entre menores e incapacitados y los demas, declarando directa la primera (articulo
19) y subsidiaria la segunda (articulos 20 y 21); pero en el orden civil, en el caso del articulo 1903, ha de
entenderse directa, por el tenor del articulo que impone la responsabilidad precisamente "por los actos de aquellas
personas de quienes se deba responder."
That is to say, one is not responsible for the acts of others, because one is liable only for his own faults, this being
the doctrine of article 1902; but, by exception, one is liable for the acts of those persons with whom there is a
bond or tie which gives rise to the responsibility. Is this responsibility direct or subsidiary? In the order of the
penal law, the Penal Code distinguishes between minors and incapacitated persons on the one hand, and other
persons on the other, declaring that the responsibility for the former is direct (article 19), and for the latter,
subsidiary (articles 20 and 21); but in the scheme of the civil law, in the case of article 1903, the responsibility
should be understood as direct, according to the tenor of that articles, for precisely it imposes responsibility "for
the acts of those persons for whom one should be responsible."
Coming now to the sentences of the Supreme Tribunal of Spain, that court has upheld the principles above set forth: that
a quasi-delict or culpa extra-contractual is a separate and distinct legal institution, independent from the civil
responsibility arising from criminal liability, and that an employer is, under article 1903 of the Civil Code, primarily and
directly responsible for the negligent acts of his employee.
One of the most important of those Spanish decisions is that of October 21, 1910. In that case, Ramon Lafuente died as
the result of having been run over by a street car owned by the "compaia Electric Madrilea de Traccion." The conductor
was prosecuted in a criminal case but he was acquitted. Thereupon, the widow filed a civil action against the street car
company, paying for damages in the amount of 15,000 pesetas. The lower court awarded damages; so the company
appealed to the Supreme Tribunal, alleging violation of articles 1902 and 1903 of the Civil Code because by final
judgment the non-existence of fault or negligence had been declared. The Supreme Court of Spain dismissed the appeal,
saying:
Considerando que el primer motivo del recurso se funda en el equivocado supuesto de que el Tribunal a quo, al
condonar a la compaia Electrica Madrilea al pago del dao causado con la muerte de Ramon La fuente
Izquierdo, desconoce el valor y efectos juridicos de la sentencia absolutoria deictada en la causa criminal que se
siguio por el mismo hecho, cuando es lo cierto que de este han conocido las dos jurisdicciones bajo diferentes as
pectos, y como la de lo criminal declrao dentro de los limites de su competencia que el hecho de que se trata no
era constitutivo de delito por no haber mediado descuido o negligencia graves, lo que no excluye, siendo este el
unico fundamento del fallo absolutorio, el concurso de la culpa o negligencia no califacadas, fuente de
obligaciones civiles segun el articulo 1902 del Codigo, y que alcanzan, segun el 1903, netre otras perosnas, a los
Directores de establecimientos o empresas por los daos causados por sus dependientes en determinadas
condiciones, es manifesto que la de lo civil, al conocer del mismo hehco baho este ultimo aspecto y al condenar a

la compaia recurrente a la indemnizacion del dao causado por uno de sus empleados, lejos de infringer los
mencionados textos, en relacion con el articulo 116 de la Ley de Enjuciamiento Criminal, se ha atenido
estrictamente a ellos, sin invadir atribuciones ajenas a su jurisdiccion propia, ni contrariar en lo mas minimo el
fallo recaido en la causa.
Considering that the first ground of the appeal is based on the mistaken supposition that the trial court, in
sentencing the Compaia Madrilea to the payment of the damage caused by the death of Ramon Lafuente
Izquierdo, disregards the value and juridical effects of the sentence of acquittal rendered in the criminal case
instituted on account of the same act, when it is a fact that the two jurisdictions had taken cognizance of the same
act in its different aspects, and as the criminal jurisdiction declared within the limits of its authority that the act in
question did not constitute a felony because there was no grave carelessness or negligence, and this being the only
basis of acquittal, it does no exclude the co-existence of fault or negligence which is not qualified, and is a source
of civil obligations according to article 1902 of the Civil Code, affecting, in accordance with article 1903, among
other persons, the managers of establishments or enterprises by reason of the damages caused by employees under
certain conditions, it is manifest that the civil jurisdiccion in taking cognizance of the same act in this latter
aspect and in ordering the company, appellant herein, to pay an indemnity for the damage caused by one of its
employees, far from violating said legal provisions, in relation with article 116 of the Law of Criminal
Procedure, strictly followed the same, without invading attributes which are beyond its own jurisdiction, and
without in any way contradicting the decision in that cause. (Emphasis supplied.)
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 andfraudulently, refused to
deliver certain articles consigned to the plaintiff. The Supreme Court of Spain held that this action was properly under
article 1902 of the Civil Code, the court saying:
Considerando que la sentencia discutida reconoce, en virtud de los hechos que consigna con relacion a las pruebas
del pleito: 1., que las expediciones facturadas por la compaia ferroviaria a la consignacion del actor de las
vasijas vacias que en su demanda relacionan tenian como fin el que este las devolviera a sus remitentes con vinos

y alcoholes; 2., que llegadas a su destino tales mercanias no se quisieron entregar a dicho consignatario por el
jefe de la estacion sin motivo justificado y con intencion dolosa, y 3., que la falta de entrega de estas
expediciones al tiempo de reclamarlas el demandante le originaron daos y perjuicios en cantidad de bastante
importancia como expendedor al por mayor que era de vinos y alcoholes por las ganancias que dejo de obtener al
verse privado de servir los pedidos que se le habian hecho por los remitentes en los envases:
Considerando que sobre esta base hay necesidad de estimar los cuatro motivos que integran este recurso, porque
la demanda inicial del pleito a que se contrae no contiene accion que nazca del incumplimiento del contrato de
transporte, toda vez que no se funda en el retraso de la llegada de las mercancias ni de ningun otro vinculo
contractual entre las partes contendientes, careciendo, por tanto, de aplicacion el articulo 371 del Codigo de
Comercio, en que principalmente descansa el fallo recurrido, sino que se limita a pedir la reparaction de los daos
y perjuicios producidos en el patrimonio del actor por la injustificada y dolosa negativa del porteador a la entrega
de las mercancias a su nombre consignadas, segun lo reconoce la sentencia, y cuya responsabilidad esta
claramente sancionada en el articulo 1902 del Codigo Civil, que obliga por el siguiente a la Compaia demandada
como ligada con el causante de aquellos por relaciones de caracter economico y de jurarquia administrativa.
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.
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"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.
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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.
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Our deduction, therefore, is that the case relates to the Penal Code and not to the Civil Code. Indeed, as pointed
out by the trial judge, any different ruling would permit the master to escape scot-free by simply alleging and
proving that the master had exercised all diligence in the selection and training of its servants to prevent the
damage. That would be a good defense to a strictly civil action, but might or might not be to a civil action either
as a part of or predicated on conviction for a crime or misdemeanor. (By way of parenthesis, it may be said further
that the statements here made are offered to meet the argument advanced during our deliberations to the effect that
article 0902 of the Civil Code should be disregarded and codal articles 1093 and 1903 applied.)
It is not clear how the above case could support the defendant's proposition, because the Court of Appeals based its
decision in the present case on the defendant's primary responsibility under article 1903 of the Civil Code and not on his
subsidiary liability arising from Fontanilla's criminal negligence. In other words, the case of City of Manila vs. Manila
Electric Co., supra, is predicated on an entirely different theory, which is the subsidiary liability of an employer arising
from a criminal act of his employee, whereas the foundation of the decision of the Court of Appeals in the present case is
the employer's primary liability under article 1903 of the Civil Code. We have already seen that this is a proper and
independent remedy.
Arambulo vs. Manila Electric Co. (55 Phil., 75), is another case invoked by the defendant. A motorman in the employ of
the Manila Electric Company had been convicted o homicide by simple negligence and sentenced, among other things, to
pay the heirs of the deceased the sum of P1,000. An action was then brought to enforce the subsidiary liability of the
defendant as employer under the Penal Code. The defendant attempted to show that it had exercised the diligence of a
good father of a family in selecting the motorman, and therefore claimed exemption from civil liability. But this Court
held:
In view of the foregoing considerations, we are of opinion and so hold, (1) that the exemption from civil liability
established in article 1903 of the Civil Code for all who have acted with the diligence of a good father of a family,
is not applicable to the subsidiary civil liability provided in article 20 of the Penal Code.
The above case is also extraneous to the theory of the defendant in the instant case, because the action there had for its
purpose the enforcement of the defendant's subsidiary liability under the Penal Code, while in the case at bar, the
plaintiff's cause of action is based on the defendant's primary and direct responsibility under article 1903 of the Civil
Code. In fact, the above case destroys the defendant's contention because that decision illustrates the principle that the
employer's primary responsibility under article 1903 of the Civil Code is different in character from his subsidiary liability
under the Penal Code.
In trying to apply the two cases just referred to, counsel for the defendant has failed to recognize the distinction between
civil liability arising from a crime, which is governed by the Penal Code, and the responsibility for cuasi-delito or culpa
aquiliana under the Civil Code, and has likewise failed to give the importance to the latter type of civil action.
The defendant-petitioner also cites Francisco vs. Onrubia (46 Phil., 327). That case need not be set forth. Suffice it to say
that the question involved was also civil liability arising from a crime. Hence, it is as inapplicable as the two cases above
discussed.
The foregoing authorities clearly demonstrate the separate individuality of cuasi-delitos or culpa aquiliana under the Civil
Code. Specifically they show that there is a distinction between civil liability arising from criminal negligence (governed
by the Penal Code) and responsibility for fault or negligence under articles 1902 to 1910 of the Civil Code, and that the
same negligent act may produce either a civil liability arising from a crime under the Penal Code, or a separate
responsibility for fault or negligence under articles 1902 to 1910 of the Civil Code. Still more concretely, the authorities
above cited render it inescapable to conclude that the employer in this case the defendant-petitioner is primarily and
directly liable under article 1903 of the Civil Code.
The legal provisions, authors, and cases already invoked should ordinarily be sufficient to dispose of this case. But
inasmuch as we are announcing doctrines that have been little understood in the past, it might not be inappropriate to
indicate their foundations.

Firstly, the Revised Penal Code in article 365 punishes not only reckless but also simple negligence. If we were to hold
that articles 1902 to 1910 of the Civil Code refer only to fault or negligence not punished by law, according to the literal
import of article 1093 of the Civil Code, the legal institution of culpa aquiliana would have very little scope and
application in actual life. Death or injury to persons and damage to property through any degree of negligence even the
slightest would have to be indemnified only through the principle of civil liability arising from a crime. In such a state
of affairs, what sphere would remain for cuasi-delito or culpa aquiliana? We are loath to impute to the lawmaker any
intention to bring about a situation so absurd and anomalous. Nor are we, in the interpretation of the laws, disposed to
uphold the letter that killeth rather than the spirit that giveth life. We will not use the literal meaning of the law to smother
and render almost lifeless a principle of such ancient origin and such full-grown development as culpa aquiliana or cuasidelito, which is conserved and made enduring in articles 1902 to 1910 of the Spanish Civil Code.
Secondly, to find the accused guilty in a criminal case, proof of guilt beyond reasonable doubt is required, while in a civil
case, preponderance of evidence is sufficient to make the defendant pay in damages. There are numerous cases of criminal
negligence which can not be shown beyond reasonable doubt, but can be proved by a preponderance of evidence. In such
cases, the defendant can and should be made responsible in a civil action under articles 1902 to 1910 of the Civil Code.
Otherwise, there would be many instances of unvindicated civil wrongs. Ubi jus ibi remedium.
Thirdly, to hold that there is only one way to make defendant's liability effective, and that is, to sue the driver and exhaust
his (the latter's) property first, would be tantamount to compelling the plaintiff to follow a devious and cumbersome
method of obtaining relief. True, there is such a remedy under our laws, but there is also a more expeditious way, which is
based on the primary and direct responsibility of the defendant under article 1903 of the Civil Code. Our view of the law
is more likely to facilitate remedy for civil wrongs, because the procedure indicated by the defendant is wasteful and
productive of delay, it being a matter of common knowledge that professional drivers of taxis and similar public
conveyance usually do not have sufficient means with which to pay damages. Why, then, should the plaintiff be required
in all cases to go through this roundabout, unnecessary, and probably useless procedure? In construing the laws, courts
have endeavored to shorten and facilitate the pathways of right and justice.
At this juncture, it should be said that the primary and direct responsibility of employers and their presumed negligence
are principles calculated to protect society. Workmen and employees should be carefully chosen and supervised in order to
avoid injury to the public. It is the masters or employers who principally reap the profits resulting from the services of
these servants and employees. It is but right that they should guarantee the latter's careful conduct for the personnel and
patrimonial safety of others. As Theilhard has said, "they should reproach themselves, at least, some for their weakness,
others for their poor selection and all for their negligence." And according to Manresa, "It is much more equitable and just
that such responsibility should fall upon the principal or director who could have chosen a careful and prudent employee,
and not upon the injured person who could not exercise such selection and who used such employee because of his
confidence in the principal or director." (Vol. 12, p. 622, 2nd Ed.) Many jurists also base this primary responsibility of the
employer on the principle of representation of the principal by the agent. Thus, Oyuelos says in the work already cited
(Vol. 7, p. 747) that before third persons the employer and employee "vienen a ser como una sola personalidad, por
refundicion de la del dependiente en la de quien le emplea y utiliza." ("become as one personality by the merging of the
person of the employee in that of him who employs and utilizes him.") All these observations acquire a peculiar force and
significance when it comes to motor accidents, and there is need of stressing and accentuating the responsibility of owners
of motor vehicles.
Fourthly, because of the broad sweep of the provisions of both the Penal Code and the Civil Code on this subject, which
has given rise to the overlapping or concurrence of spheres already discussed, and for lack of understanding of the
character and efficacy of the action for culpa aquiliana, there has grown up a common practice to seek damages only by
virtue of the civil responsibility arising from a crime, forgetting that there is another remedy, which is by invoking articles
1902-1910 of the Civil Code. Although this habitual method is allowed by our laws, it has nevertheless rendered
practically useless and nugatory the more expeditious and effective remedy based on culpa aquiliana or culpa extracontractual. 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.

3. G.R. No. L-4912

March 25, 1909

THE UNITED STATES, plaintiff-appellee, vs. EMILIA GUY-SAYCO, defendant-appellant.

C. Ledesma for appellant.
Office of the Solicitor-General Harvey for appellee.
TORRES, J.:
Long before the commission of the crime herein prosecuted, Gelasio Galupitan, the husband of the accused, entered into
unlawful relations with the deceased Lorenza Estrada; all were residents of the town of Santa Cruz, the capital of the
Province of La Laguna.
The accused, Emilia Guy-sayco, duly became aware of this relation. As her husband had stayed away from the home for
more than two weeks, remaining in the barrio of Dujat, distant about two or one-half hours' walk from the said town under
the pretext that he was engaged in field work, on the 20th of March, 1907, at about 2 p. m., she decided to go to said
barrio and join him. To this end she hired a carromata, and after getting some clothes and other things necessary for
herself and husband, started out with her infant child and a servant girl; but before reaching the barrio and
the camarin where her husband ought to be, night came on, and at about 7 o'clock she alighted and dismissed the vehicle
after paying the driver. They had yet to travel some distance, and for fear of being attacked she disguised herself, using
her husband's clothes and a hat given to her by her companion, and dressed in this manner they continued on their way.
On seeing her husband's horse tied in front of a house she suspected that he was inside; thereupon she went to the steps
leading to the house, which was a low one, and then saw her husband sitting down with his back toward the steps. She
immediately entered the house and encountered her husband, the deceased, and the owners of the house taking supper
together. Overcome and blinded by jealousy she rushed at Lorenza Estrada, attacked her with a penknife that she carried,
and inflicted five wounds upon her in consequence of which Lorenza fell to the ground covered with blood and died a few
moments afterwards. The accused left the house immediately after the aggression, and went to that of Modesto Ramos
where she changed her clothes.
From an examination of the body made on the following day by Dr. Gertrudo Reyes, it appeared that five wounds had
been inflicted by a cutting and pointed weapon, one of which was on the left side of the breast and penetrated the left
ventricle of the heart; this wound was of necessity mortal, the others being more or less serious.
A complaint was thereupon filed by the provincial fiscal on May 31, 1907, and the corresponding proceedings were
instituted. The court below entered judgment on June 29, 1908, sentencing the accused, Emilia Gut-Sayco, to the penalty
of twelve years and one day of reclusion temporal, to suffer the accessory penalties, to indemnify the heirs of the deceased
in the sum of P1,000, and to pay the costs. From said judgment she has appealed.
The above-stated facts, which has been fully proven in this case, constitute the crime of homicide defined and punished by
article 404 of the Penal Code, for the reason that in the violent death of Lorenza Estrada, occasioned by the infliction of
several wounds, one of which was mortal, none of the circumstances were present that qualify the crime of assassination
and for a heavier penalty as imposed by the previous article 403 of the code.
The reality and certitude of the crime at bar can not be denied. It has been proven by the testimony of several witnesses, to
wit, Roberto Villaran, Susana de Mesa, the owners of the house, and Maria Ramos, all of whom witnessed the aggression;
they saw the deceased die as the result of five wounds inflicted upon her, one of which was, of necessity mortal; it was

also proven by the testimony of the surgeon who examined the body, which was seen by the said witnesses and by others
who went to the place of the occurrence.
The accused pleaded not guilty, and in exculpation she alleged that, when Lorenza Estrada saw her and heard her
remonstrate with her husband, she being then upstairs, Lorenza at once asked what had brought her there and manifested
her intention to attack her with a knife that she carried in her hand, whereupon the accused caught the deceased by the
right hand, in which she held the weapon, and immediately grappled with her, and in the struggle that ensued she managed
to get hold of a penknife that she saw on the floor close by; she could not say whether she struck the deceased with it as
she could not account for what followed.
From this allegation of the accused, her counsel, with a view to asking that she be absolved, claims that in wounding the
deceased she acted in proper self-defense.
It has been proven beyond a reasonable doubt that as soon as the accused entered the house where she found her husband,
without saying a word, she attacked the deceased with a penknife and inflicted wounds that caused the immediate death of
the latter. Such an allegation can not therefore be admitted, even though corroborated by the husband and the servant of
the accused, inasmuch as the testimony of the latter is entirely contradicted and destroyed by the testimony of the
witnesses for the prosecution, who were present at the aggression, and who deny that the servant was present; it is not true
that a penknife was found on the floor of the house; it is probable that the instrument with which the crime was committed
was carried by the accused when she went to said house; and even though it were true that when the accused, Emilia,
made her appearance, the deceased Lorenza arose with a knife in her hand and in a threatening manner asked the accused
what had brought her there, such attitude, under the provisions of article 8, No. 4 of the Penal Code, does not constitute
that unlawful aggression, which, among others, is the first indispensable requisite upon which exemption by reason of
self-defense may be sustained.
In order to consider that an unlawful aggression was actually committed, it is necessary that an attack or material
aggression, an offensive act positively determining the intent of the aggressor to cause an injury shall have been made; a
mere threatening or intimidating attitude is not sufficient to justify the commission of an act which is punishable per se,
and allow a claim of exemption from liability on the ground that it was committed in self-defense. It has always been so
recognized in the decisions of the courts, in accordance with the provisions of the Penal Code.
In the commission of the crime the presence of mitigating circumstance No. 7 of article 9 of the code should be
considered, without any aggravating circumstance to neutralize its effects, for the reason that it has been proven that the
accused, at the time when the crime was committed, acted upon the impulse of passion and under great jealous excitement
at the sight of her husband taking supper in the company of his mistress, after he had been absent from the conjugal
dwelling for several days.
As to the penalty of indemnity contained in the judgment appealed from and impugned by the defense, article 17 of the
code reads: "Every person criminally liable for a crime or misdemeanor is also civilly liable," and according to the
established rule of the courts, in order that an accused person may be declared to have incurred civil liability, it is
sufficient that said liability shall proceed from, or be the consequence of the criminal liability, and in addition thereto,
article 122 of the said code provides that the courts shall regulate the amount of indemnity for damages under said civil
liability, upon the same terms as prescribed for the reparation of damage in article 121 of the code, and a finding on the
matter should be contained in the judgment.
For the reasons above set forth it is our opinion that the judgment appealed from should be affirmed, as we do hereby
affirm it in all its parts with costs against the appellant. So ordered.

4. [G.R. No. 20874. October 23, 1923. ]

WISE & COMPANY, Plaintiff-Appellant, v. GREGORIO C. LARION, Defendant-Appellee.
Block, Johnston & Greenbaum for Appellant.
Cecilio I. Lim for Appellee.
SYLLABUS
1. CRIMINAL LAW; "ESTAFA;" EFFECT OF ACQUITTAL UPON CIVIL LIABILITY OF ACCUSED. While it is
true that a civil action may be maintained by an employer to recover money misappropriated by his employee without the
prior institution of a criminal proceeding, nevertheless if a criminal prosecution based upon the same misappropriation is
in fact instituted against the employee and he is acquittal operates as a bar to any subsequent civil action.
2. ID.; ID.; EFFECT OF DISMISSAL OF CRIMINAL PROSECUTION. The rule is different where the criminal
proceeding is dismissed on the motion of the fiscal before the accused arraigned.
3. JUSTICE OF PEACE; ABSENCE OF JUDGE OF FIRST INSTANCE; INTERLOCUTORY POWER OF JUSTICE
OF PEACE. The justice of the peace in the capital of a province may, in the absence of the Judge of First Instance,
exercise the interlocutory powers of a judge of First Instance; and an order made by a justice of the peace, purporting to be
made in the absence of the Judge of First Instance, will be sustained as having been done in the lawful exercise of the
powers of the justice of the peace, where it appears that the order in question was made in vacation time and that the judge
assigned to vacation duty in such province for that year was a resident of another province. In the absence of proof to the
contrary it will be assumed, under the conditions stated, that no judge of First Instance was then in the province.
DECISION
This action was instituted in the Court of First Instance of the Province of Iloilo by Wise & Co. to recover a sum of money
from the defendant, Gregorio C. Larion, alleged to have been converted and misappropriated by him while acting in the
capacity of cashier of the plaintiffs Iloilo branch. As an incident to the prosecution of the case the plaintiff obtained an
order for writ of attachment against the defendant and said attachment was levied upon certain personal property; but this
attachment was subsequently dissolved. The defendant answered generally, denying the allegations of the complaint and
alleging as a special defense that the defendant had been criminally prosecuted for estafa, in four separate actions,
founded upon the misappropriation of the moneys sued for in this action, in one of which action the defendant had been
acquitted and in the other three the informations had been dismissed; wherefore the defendant relied upon said criminal
prosecution as res judicata in this case. By way of counterclaim the defendant sought to recover the sum of P5,000, as
damages alleged to have been incurred by him by reason of the wrongful and unlawful suing out of the attachment which
had been obtained by the plaintiff.
At the hearing the trial judge found favorably to the accused upon the issue presented by his special plea of acquittal in
one prior criminal action and the dismissal of three other criminal causes against him, all founded upon an alleged
estafa of the moneys here sued for. He therefore absolved the defendant from the complaint and gave judgment in favor of
the defendant (plaintiff in the cross complaint for the amount of P710, as damages incurred by reason of the attachment
already mentioned. From this judgment Wise & Co. appealed, and it has assigned errors, not only to the action of the court
in absolving the defendant from the complaint, but also to the action of the court in awarding damages to the plaintiff for
the wrongful attachment of the defendants property.
It appears in evidence that the house of Wise & Co., with its principal office in Manila, has a branch in the city of Iloilo,
of which one F. W. Whiteley was manager, and the defendant, Gregorio C. Larion, was an assistant to the manager and
acting cashier, during the time of the transactions which gave origin to this litigation. It further appears that the said F. W.
Whiteley was unfaithful to his trust and a admitted embezzler. On November 29, 1920, the firm of Hong Guan & Co., of
Iloilo, issued a check, No. 31538C (Exhibit A), drawn upon the Philippine National Bank at Iloilo, and payable to bearer
for the sum of P1,270, the amount of its indebtedness on that date to Wise & Co. This check was delivered by Hong Guan
& Co. to the collector of Wise & Co. and in return therefor Hong Guan & Co. receive a receipt (Exhibit B) for the amount
of P1,270, signed by G. C. Larion, the defendant herein, showing that the indebtedness indicated in the receipt had been

paid. The check which had been delivered to the collector appears to have passed directly into the hands of Whiteley who
was then, for some reason or other, hard pressed for money; and he determined to appropriate the proceeds of the check.
To this end he instructed Larion to deposit this check in his (Larions) own personal account in the Philippine National
Bank. At the same time Whiteley told Larion that he (Whiteley) needed money and directed that the proceeds of the check
be turned over to himself. Larion was fully aware that Whiteley was bent on the misappropriation of the money but
nevertheless, after some hesitation, proceed to do as told. He accordingly indorsed his own name on the back of the check
and deposited it to his own personal account in the bank. The money concerned in this irregular transaction was not
entered in the books of Wise & Co. by Larion; but Whiteley gave to Larion a signed statement in writing to the effect that
what Larion had done with this check was by Whiteleys instructions. (Exhibit 2.)
The deposit of check 31538C was effected o December 2, 1920; and it appears that a few days prior thereto Larion had
deposited two other similar checks, belonging to Wise & Co. to his own account, one for P1,270 and another for P1,630.
On December 5 he likewise deposited a fourth check belonging to Wise & Co. to his own personal account, in the amount
of P1,000. It does not appear by any documentary evidence that the three checks last above referred to were deposited by
Larion in his own personal account upon the instructions of Whiteley, but Larion says that they were so deposited by
Whiteleys direction; and on December 6, 1920, Whiteley signed the document (Exhibit 1) to the following
effect:jgc:chanrobles.com.ph
"Received from Gregorio Larion the sum of the Philippine Pesos five thousand one hundred seventy (P5,170) this being
the total amount of cheques Nos. 195843 for P1,630, No. 31525C for P1,270, No. 31538C for P1,270 and No. 31546C for
P1,000, paid by Hong Guan & Co. for which I accept entire responsibility.
"Iloilo, December 6, 1920.
(Sgd.) "F. W. WHITELEY"
Larion states that shortly prior to the transactions mentioned he had let Whiteley have the sum of P500 upon personal
account, and that on December 1, 1920, he delivered the sum of P1,000 to Whiteley and on December 6, the further sum
of P3,670, making a total of P5,170, in conformity with the statement of the foregoing receipt. Larion says that he knew
very well that Whiteley was stealing from his house and that he (Larion) had scruple about making himself a party to the
transactions above stated but that out of deference to Whiteleys superior rank, and disliking to incur his illwill, he
acquiesced in the transactions.
About four months later Hawkins, a director of Wise & Co., came to Iloilo from Manila as representative of the house in
order to investigate the conditions in the Iloilo branch; and on April, one Strickland arrived to relieve Whiteley as manager
of that branch; and during April, Hawkins and Strickland were investigating discrepancies in Whiteleys accounts. While
these investigations were going on Larion was called upon more than once for information, but he observed silence and
refused to reveal anything detrimental to Whiteley.
The upshot of the matter was that when the defalcation of Whiteley was revealed Larion was involved in suspicion with
his employers as an accomplice of Whiteley. What happened to Whiteley does not appear in the record, but four separate
prosecutions for estafa were instituted in the criminal court of Iloilo against Larion. Only one of these actions ever came
to trial, and that was the prosecution founded upon the estafa alleged to have been committed in the misappropriation of
the proceeds of check 31538C for the sum of P1,270 already referred to. The defendant pleaded not guilty in that case was
heard upon proof submitted by both parties; after which the court acquitted the defendant. In the other three cases Larion
had not yet been arraigned at the time of his acquittal in the first case; and the fiscal, upon the announcement of the
decision to the court that the other cases were of an identical character and he asked that the prosecutions be dismissed.
That action was accordingly taken.
There can be no question that the defendant, Gregorio C. Larion, made himself civilly liable to Wise & Co. by cooperating
in the manner above stated with Whiteley in the embezzlement of the checks already referred to. It may be that Larion is
innocent, as he claims to be, of any participation in the criminal design of Whiteley and that he merely followed
Whiteleys directions out of pure complaisance. The situation, however, looks exceedingly suspicious in any point of view
and as to his civil liability we think there can be no question apart of course from the question of res judicata based
upon the criminal proceedings, presently to be considered.

Speaking from the standpoint of civil liability purely, the defendant knowingly participated in acts which constituted a
fraud upon his employer; and although he relied upon the Whiteley to stand between him and the house of Wise & Co.,
the undertaking of Whiteley does not absolve the defendant from responsibility to the house. Civilly speaking, Larion
himself an accomplice in the misappropriation of these checks, or their proceeds, by Whiteley; and the circumstance that
Larion may have yielded to the persuasion of Whiteley out of mere complaisance does not change the situation.
The trial judge apparently recognized the prima facie civil liability of Larion to Wise & Co., as the judgment absolving the
defendant from such liability was placed exclusively upon the supposed effects of the disposition made of the criminal
cases. And in this connection his Honor cited the case, decided by the Supreme Court of the United States, of Almeida
Chantangco and Lete v. Abaroa (40 Phil., 1056). It there appeared that the defendant had been accused of the malicious
and unlawful burning of a storehouse and its contents but he had been acquitted of the crime of arson in a criminal
prosecution. Later a civil action was instituted to recover of the same person the damage resulting to the owner of the
storehouse from the fire. The defendant in the said civil action pleaded his acquittal in the criminal case as a bar; and upon
appeal to the Supreme Court of the United States it was held that, under the law prevailing in the Philippine Islands, said
acquittal in the criminal case operated as a bar to the civil action. In the opinion in that case the Supreme Court of the
United States reached the conclusion that civil liability does not exist where a defendant has been absolved from criminal
liability for the act or acts upon which civil liability is based; but it was pointed out that if the burning instead of being
malicious and unlawful, as was alleged in that case, had been due to some fault or negligence of a character that could not
give rise to criminal liability the result would have been different. We do not propose in this opinion to undertake to
analyze the decision of the Supreme Court of the United States and point out the possibility that the language there used
may be too broad. It is enough for our present purposes to say that where, as here, the facts on which civil liability is
based are of such nature as inevitably to constitute a crime, if anything, acquittal in a criminal prosecution is an
insuperable obstacle to the civil proceeding. In the case No. 31538C was designedly done, even though done under
Whiteleys directions; and that act constituted a misappropriation of the employers money in which was necessarily
involved both a criminal and civil liability. In this connection it should be noted that the estafa consisted of the
misappropriation by an employee of funds belonging to his employer, in violation of subjection 5 of article 535 of the
Penal Code; and the only thing necessary to estafa consisted of the misappropriation by an employers money in which
was necessarily involved both a criminal and civil liability is the mere fact of misappropriation with intent to deprive the
employer of the property. It results that the plaintiff cannot recover in this action for the misappropriation of check
31538C.
The case with respect to the three other checks is different, since the dismissal of the criminal actions based on the
misappropriation of those checks, before the accused had been arraigned, could not constitute res judicata in any sense (U.
S. v. Madlangbayan, 2 Phil., 426); and it is established doctrine in this jurisdiction that the prosecution of a criminal action
to a successful conviction of the accused is not a condition precedent to the bringing of a civil action (Rakes v. Atlantic,
Gulf & Pacific Co., 7 Phil., 359), especially in estafa cases.
With respect to the alleged wrongful suing out of the attachment by the plaintiff against the defendant, it appears that the
order for this attachment was signed by the justice of the peace of Iloilo, acting in the absence of the Judge of the Court of
First Instance. As the order was made on May 5, 1921, we take judicial knowledge of the fact that this was vacation time
and that the regular court was not then in session in Iloilo. Moreover, it appears that Honorable Fermin Mariano, a
resident of another province, had been appointed to act as vacation judge for his own district and also for the province and
district of Iloilo. The presumption therefore is, and we take the fact to be, in the absence of proof to the contrary, that
Judge Fermin Mariano was not personally present in Iloilo on the date that the justice of the peace signed the order for the
attachment. It results that said order must be attributed to the justice of the peace in the exercise of the jurisdiction of a
Judge of First Instance pursuant to section 1 of Act No. 2131. Moreover, inasmuch as the order for the attachment
purports to be signed by the justice of the peace "in the absence of the Judge of first Instance," it must be assumed that
said justice of the peace was lawfully acting in the exercise of the jurisdiction which pertains to him under the conditions
stated. (Sec. 334 [15], Code of Civ. Proc.) It follows that the order for the attachment was valid, notwithstanding the fact
that the attachment was for a sum in excess of P2,000, and therefore beyond the ordinary jurisdiction of a justice of the
peace; and we are unable to agree to the conclusion of the court below that the attachment was issued without legal
authority.
From what has been said it will be seen that the plaintiff had a good cause of action upon at least three of the checks, and
the writ of attachment was issued by competent authority. As the sufficiency of the ground of attachment has not been
drawn in question, the attachment was in all respects valid; and a necessary conclusion is that defendant is not entitled to

recover the damages which were awarded to him under the cross-complaint for the alleged wrongful suing out of the
attachment.
The judgment appealed from will be reversed, and judgment will be entered in favor of the plaintiff to recover of the
defendant the sum of P3,900, with interest from May 4, 1921, and the plaintiff will be absolved from the cross-complaint.
So ordered, without special pronouncement as to costs.

5. G.R. No. L-29462

March 7, 1929

IGNACIO DEL PRADO, plaintiff-appellee, vs. MANILA ELECTRIC CO., defendant-appellant.

Ross, Lawrence and Selph and Antonio T. Carrascoso, jr., for appellant.
Vicente Sotto for appellee.
STREET, J.:
This action was instituted in the Court of First Instance of Manila by Ignacio del Prado to recover damages in the amount
of P50,000 for personal injuries alleged to have been caused by the negligence of te defendant, the Manila Electric
Company, in the operation of one of its street cars in the City of Manila. Upon hearing the cause the trial court awarded to
the plaintiff the sum of P10,000, as damages, with costs of suit, and the defendant appealed.
The appellant, the Manila Electric Company, is engaged in operating street cars in the City for the conveyance of
passengers; and on the morning of November 18, 1925, one Teodorico Florenciano, as appellant's motorman, was in
charge of car No. 74 running from east to west on R. Hidalgo Street, the scene of the accident being at a point near the
intersection of said street and Mendoza Street. After the car had stopped at its appointed place for taking on and letting off
passengers, just east of the intersection, it resumed its course at a moderate speed under the guidance of the motorman.
The car had proceeded only a short distance, however, when the plaintiff, Ignacio del Prado, ran across the street to catch
the car, his approach being made from the left. The car was of the kind having entrance and exist at either end, and the
movement of the plaintiff was so timed that he arrived at the front entrance of the car at the moment when the car was
passing.
The testimony of the plaintiff and of Ciriaco Guevara, one of his witnesses, tends to shows that the plaintiff, upon
approaching the car, raised his hand as an indication to the motorman of his desire to board the car, in response to which
the motorman eased up a little, without stopping. Upon this the plaintiff seized, with his hand, the front perpendicular
handspot, at the same time placing his left foot upon the platform. However, before the plaintiff's position had become
secure, and even before his raised right foot had reached the flatform, the motorman applied the power, with the result that
the car gave a slight lurch forward. This sudden impulse to the car caused the plaintiff's foot to slip, and his hand was
jerked loose from the handpost, He therefore fell to the ground, and his right foot was caught and crushed by the moving
car. The next day the member had to be amputated in the hospital. The witness, Ciriaco Guevara, also stated that, as the
plaintiff started to board the car, he grasped the handpost on either side with both right and left hand. The latter statement
may possibly be incorrect as regards the use of his right hand by the plaintiff, but we are of the opinion that the finding of
the trial court to the effect that the motorman slowed up slightly as the plaintiff was boarding the car that the plaintiff's fall
was due in part at lease to a sudden forward movement at the moment when the plaintiff put his foot on the platform is
supported by the evidence and ought not to be disturbed by us.
The motorman stated at the trial that he did not see the plaintiff attempting to board the car; that he did not accelerate the
speed of the car as claimed by the plaintiff's witnesses; and that he in fact knew nothing of the incident until after the
plaintiff had been hurt and some one called to him to stop. We are not convinced of the complete candor of this statement,
for we are unable to see how a motorman operating this car could have failed to see a person boarding the car under the
circumstances revealed in this case. It must be remembered that the front handpost which, as all witness agree, was
grasped by the plaintiff in attempting to board the car, was immediately on the left side of the motorman.

With respect to the legal aspects of the case we may observe at the outset that there is no obligation on the part of a street
railway company to stop its cars to let on intending passengers at other points than those appointed for stoppage. In fact it
would be impossible to operate a system of street cars if a company engage in this business were required to stop any and
everywhere to take on people who were too indolent, or who imagine themselves to be in too great a hurry, to go to the
proper places for boarding the cars. Nevertheless, although the motorman of this car was not bound to stop to let the
plaintiff on, it was his duty to do act that would have the effect of increasing the plaintiff's peril while he was attempting
to board the car. The premature acceleration of the car was, in our opinion, a breach of this duty.
The relation between a carrier of passengers for hire and its patrons is of a contractual nature; and in failure on the part of
the carrier to use due care in carrying its passengers safely is a breach of duty (culpa contructual) under articles 1101,
1103 and 1104 of the Civil Code. Furthermore, the duty that the carrier of passengers owes to its patrons extends to
persons boarding the cars as well as to those alighting therefrom. The case of Cangco vs. Manila Railroad Co. (38 Phil.,
768), supplies an instance of the violation of this duty with respect to a passenger who was getting off of a train. In that
case the plaintiff stepped off of a moving train, while it was slowing down in a station, and at the time when it was too
dark for him to see clearly where he was putting his feet. The employees of the company had carelessly left watermelons
on the platform at the place where the plaintiff alighted, with the result that his feet slipped and he fell under the car,
where his right arm badly injured. This court held that the railroad company was liable for breach positive duty (culpa
contractual), and the plaintiff was awarded damages in the amount of P2,500 for the loss of his arm. In the opinion in that
case the distinction is clearly drawn between a liability for negligence arising from breach of contructual duty and that
arising articles 1902 and 1903 of the Civil Code (culpa aquiliana).
The distiction between these two sorts of negligence is important in this jurisdiction, for the reason that where liability
arises from a mere tort (culpa aquiliana), not involving a breach of positive obligation, an employer, or master, may
exculpate himself, under the last paragraph of article 1903 of the Civil Code, by providing that he had exercised due
degligence to prevent the damage; whereas this defense is not available if the liability of the master arises from a breach
of contrauctual duty (culpa contractual). In the case bfore us the company pleaded as a special defense that it had used all
the deligence of a good father of a family to prevent the damage suffered by the plaintiff; and to establish this contention
the company introduced testimony showing that due care had been used in training and instructing the motorman in
charge of this car in his art. But this proof is irrelevant in view of the fact that the liability involved was derived from a
breach of obligation under article 1101 of the Civil Code and related provisions. (Manila Railroad Co. vs. Compana
Transatlantica and Atlantic, Gulf & Pacific Co., 38 Phil., 875, 887; De Guia vs. Manila Electric Railroad & Light Co., 40
Phil., 706, 710.)
Another practical difference between liability for negligence arising under 1902 of the Civil Code and liability arising
from negligence in the performance of a positive duty, under article 1101 and related provisions of the Civil Code, is that,
in dealing with the latter form of negligence, the court is given a discretion to mitigate liability according to the
circumstances of the case (art 1103). No such general discretion is given by the Code in dealing with liability arising
under article 1902; although possibly the same end is reached by courts in dealing with the latter form of liability because
of the latitude of the considerations pertinent to cases arising under this article.
As to the contributory negligence of the plaintiff, we are of the opinion that it should be treated, as in Rakes vs. Atlantic,
Gulf and Pacific Co. (7 Phil., 359), as a mitigating circumstance under article 1103 of the Civil Code. It is obvious that the
plaintiff's negligence in attempting to board the moving car was not the proximate cause of the injury. The direct and
proximate cause of the injury was the act of appellant's motorman in putting on the power prematurely. A person boarding
a moving car must be taken to assume the risk of injury from boarding the car under the conditions open to his view, but
he cannot fairly be held to assume the risk that the motorman, having the situation in view, will increase his peril by
accelerating the speed of the car before he is planted safely on the platform. Again, the situation before us is one where the
negligent act of the company's servant succeeded the negligent act of the plaintiff, and the negligence of the company
must be considered the proximate cause of the injury. The rule here applicable seems to be analogous to, if not identical
with that which is sometimes referred to as the doctrine of "the last clear chance." In accordance with this doctrine, the
contributory negligence of the party injured will not defeat the action if it be shown that the defendant might, by the
exercise of reasonable care and prudence, have avoided the consequences of the negligence of the injured party (20 R. C.
L., p. 139; Carr vs. Interurban Ry. Co., 185 Iowa, 872; 171 N. W., 167). The negligence of the plaintiff was, however,
contributory to the accident and must be considered as a mitigating circumstance.

With respect to the effect of this injury upon the plaintiff's earning power, we note that, although he lost his foot, he is able
to use an artificial member without great inconvenience and his earning capacity has probably not been reduced by more
than 30 per centum. In view of the precedents found in our decisions with respect to the damages that ought to be awarded
for the loss of limb, and more particularly Rakes vs. Atlantic, Gulf and Pacific Co. (7 Phil., 359); Cangco vs. Manila
Railroad Co. (38 Phil., 768); and Borromeo vs. Manila Electric Railroad and Light Co. (44 Phil., 165), and in view of all
the circumstances connected with the case, we are of the opinion that the plaintiff will be adequately compensated by an
award of P2,500.
It being understood, therefore, that the appealed judgment is modified by reducing the recovery to the sum of P2,500, the
judgment, as thus modified, is affirmed. So ordered, with costs against the appellant.

6 . G.R. No. L-33380

December 17, 1930

TEODORA ASTUDILLO, plaintiff-appellee, vs. MANILA ELECTRIC COMPANY, defendant-appellant.

Ross, Lawrence and Selph and Antonio T. Carrascoso, Jr. for appellant.
Vicente Sotto and Adolfo Brillantes for appellee.
MALCOLM, J.:
In August, 1928, a young man by the name of Juan Diaz Astudillo met his death through electrocution, when he placed his
right hand on a wire connected with an electric light pole situated near Santa Lucia Gate, Intramuros, in the City of
Manila. Shortly thereafter, the mother of the deceased instituted an action in the Court of First Instance of Manila to
secure from the Manila Electric Company damages in the amount of P30,000. The answer of the company set up as
special defenses that the death of Juan Diaz Astudillo was due solely to his negligence and lack of care, and that the
company had employed the diligence of a good father of a family to prevent the injury. After trial, which included an
ocular inspection of the place where the fatality occurred, judgment was rendered in favor of the plaintiff and against the
defendant for the sum of P15,000, and costs.
As is well known, a wall surrounds the District of Intramuros, in the City of Manila. At intervals, gates for the ingress and
egress of pedestrians and vehicles penetrate the wall. One of these openings toward Manila Bay is known as the Santa
Lucia Gate. Above this gate and between the wall and a street of Intramuros is a considerable space sodded with grass
with the portion directly over the gate paved with stone. Adjoining this place in Intramuros are the buildings of the Ateneo
de Manila, the Agustinian Convent, the Bureau of Public Works, and the Santa Lucia Barracks. The proximity to these
structures and to the congested district in the Walled City has made this a public place where persons come to stroll, to
rest, and to enjoy themselves. An employee of the City of Manila, a number of years ago, put up some wire to keep
persons from dirtying the premises, but this wire has fallen down and is no obstacle to those desiring to make use of the
place. No prohibitory signs have been posted.
Near this place in the street of Intramuros is an electric light pole with the corresponding wires. The pole presumably was
located by the municipal authorities and conforms in height to the requirements of the franchise of the Manila Electric
Company. The feeder wires are of the insulated type, known as triple braid weather proof, required by the franchise. The
pole, with its wires, was erected in 1920. It was last inspected by the City Electrician in 1923 or 1924. The pole was
located close enough to the public place here described, so that a person, by reaching his arm out the full length, would be
able to take hold of one of the wires. It would appear, according to the City Electrician, that even a wire of the triple braid
weather proof type, if touched by a person, would endanger the life of that person by electrocution.
About 6 o'clock in the evening of August 14, 1928, a group of boys or young men came to this public place. Two of them
named Juan Diaz Astudillo and Alejo Ponsoy sauntered over to where the electric post was situated. They were there
looking out towards Intramuros. For exactly what reason, no one will ever know, but Juan Diaz Astudillo, placing one foot
on a projection, reached out and grasped a charged electric wire. Death resulted almost instantly.

The matter principally discussed is the question of the defendant company's liability under the circumstances stated. It is
well established that the liability of electric light companies for damages for personal injuries is governed by the rules of
negligence. Such companies are, however, not insurers of the safety of the public. But considering that electricity is an
agency, subtle and deadly, the measure of care required of electric companies must be commensurate with or
proportionate to the danger. The duty of exercising this high degree of diligence and care extends to every place where
persons have a right to be. The poles must be so erected and the wires and appliances must be so located the persons
rightfully near the place will not be injured. Particularly must there be proper insulation of the wires and appliances in
places where there is probable likelihood of human contact therewith. (20 C. J., pp. 320 et seq.; San Juan Light & Transit
Co. vs. Requena [1912], 224 U. S., 89.)
We cannot agree with the defense of the Manila Electric Company in the lower court to the effect that the death of Juan
Diaz Astudillo was due exclusively to his negligence. He only did the natural thing to be expected of one not familiar with
the danger arising from touching an electric wire, and was wholly unconscious of his peril. Had not the wire caused the
death of this young man, it would undoubtedly have been only a question of time when someone else, like a playful boy,
would have been induced to take hold of the wire, with fatal results. The cause of the injury was one which could have
been foreseen and guarded against. The negligence came from the act of the Manila Electric Company in so placing its
pole and wires as to be within proximity to a place frequented by many people, with the possibility ever present of one of
them losing his life by coming in contact with a highly charged and defectively insulated wire.
As we understand the position of the Manila Electric Company on appeal, its principal defense now is that it has fully
complied with the provisions of its franchise and of the ordinances of the City of Manila. It is undeniable that the violation
of franchise, an ordinance, or a statute might constitute negligence. But the converse is not necessarily true, and
compliance with a franchise, an ordinance, or a statute is not conclusive proof that there was no negligence. The franchise,
ordinance, or statute merely states the minimum conditions. The fulfillment of these conditions does not render
unnecessary other precautions required by ordinary care. (Moore vs. Hart [1916], 171 Ky., 725; Oliver vs. Weaver [1923],
72 Colo., 540; Caldwell vs. New Jersey Steamboat Co. [1872], 47 N. Y., 282; Consolidated Electric Light & Power
Co. vs. Healy [1902], 65 Kan., 798.)
The company further defends in this court on the ground that it has not been proven that the deceased is an acknowledged
natural child of the plaintiff mother. Technically this is correct. (Civil Code, art. 944). At the same time, it should first of
all be mentioned that, so far as we know, this point was not raised in the lower court. Further, while the mother may thus
be precluded from succeeding to the estate of the son, yet we know of no reason why she cannot be permitted to secure
damages from the company when the negligence of this company resulted in the death of her child.lawphi1>net
We, therefore, conclude that the plaintiff is entitled to damages. But the evidence indicative of the true measure of those
damages is sadly deficient. All that we know certainly is that the deceased was less than 20 years of age, a student, and
working in the Ateneo de Manila, but at what wages we are not told. We are also shown that approximately P200 was
needed to defray the travel and funeral expenses. As would happen in the case of a jury who have before them one of the
parents, her position to life, and the age and sex of the child, varying opinions, have been disclosed in the court regarding
the estimate of the damages with reference to the next of kin. Various sums have been suggested, beginning as low as
P1,000 and extending as high as P5,000. A majority of the court finally arrived at the sum of P1,500 as appropriate
damages in this case. The basis of this award would be the P1,000 which have been allowed in other cases for the death of
young children without there having been tendered any special proof of the amount of damages suffered, in connection
with which should be taken into account the more mature age of the boy in the case at bar, together with the particular
expenses caused by his death. (Manzanares vs Moreta [1918], 38 Phil., 821; Bernal and Enverso vs. House and Tacloban
Electric & Ice Plant [1930], 54 Phil., 327; Cuison vs. Norton & Harrison Co. [1930], p. 18, ante.)
In the light of the foregoing, the various errors assigned by the appellant will in the main be overruled, but as above
indicated, the judgment will be modified by allowing the plaintiff to recover from the defendant the sum of P1,500, and
the costs of both instances.

7. G.R. No. L-12219 March 15, 1918

AMADO PICART, plaintiff-appellant, vs. FRANK SMITH, JR., defendant-appellee.
Alejo Mabanag for appellant.
G. E. Campbell for appellee.
STREET, J.:
In this action the plaintiff, Amado Picart, seeks to recover of the defendant, Frank Smith, jr., the sum of P31,000, as
damages alleged to have been caused by an automobile driven by the defendant. From a judgment of the Court of First
Instance of the Province of La Union absolving the defendant from liability the plaintiff has appealed.
The occurrence which gave rise to the institution of this action took place on December 12, 1912, on the Carlatan Bridge,
at San Fernando, La Union. It appears that upon the occasion in question the plaintiff was riding on his pony over said
bridge. Before he had gotten half way across, the defendant approached from the opposite direction in an automobile,
going at the rate of about ten or twelve miles per hour. As the defendant neared the bridge he saw a horseman on it and
blew his horn to give warning of his approach. He continued his course and after he had taken the bridge he gave two
more successive blasts, as it appeared to him that the man on horseback before him was not observing the rule of the road.
The plaintiff, it appears, saw the automobile coming and heard the warning signals. However, being perturbed by the
novelty of the apparition or the rapidity of the approach, he pulled the pony closely up against the railing on the right side
of the bridge instead of going to the left. He says that the reason he did this was that he thought he did not have sufficient
time to get over to the other side. The bridge is shown to have a length of about 75 meters and a width of 4.80 meters. As
the automobile approached, the defendant guided it toward his left, that being the proper side of the road for the machine.
In so doing the defendant assumed that the horseman would move to the other side. The pony had not as yet exhibited
fright, and the rider had made no sign for the automobile to stop. Seeing that the pony was apparently quiet, the defendant,
instead of veering to the right while yet some distance away or slowing down, continued to approach directly toward the
horse without diminution of speed. When he had gotten quite near, there being then no possibility of the horse getting
across to the other side, the defendant quickly turned his car sufficiently to the right to escape hitting the horse alongside
of the railing where it as then standing; but in so doing the automobile passed in such close proximity to the animal that it
became frightened and turned its body across the bridge with its head toward the railing. In so doing, it as struck on the
hock of the left hind leg by the flange of the car and the limb was broken. The horse fell and its rider was thrown off with
some violence. From the evidence adduced in the case we believe that when the accident occurred the free space where
the pony stood between the automobile and the railing of the bridge was probably less than one and one half meters. As a
result of its injuries the horse died. The plaintiff received contusions which caused temporary unconsciousness and
required medical attention for several days.
The question presented for decision is whether or not the defendant in maneuvering his car in the manner above described
was guilty of negligence such as gives rise to a civil obligation to repair the damage done; and we are of the opinion that
he is so liable. As the defendant started across the bridge, he had the right to assume that the horse and the rider would
pass over to the proper side; but as he moved toward the center of the bridge it was demonstrated to his eyes that this
would not be done; and he must in a moment have perceived that it was too late for the horse to cross with safety in front
of the moving vehicle. In the nature of things this change of situation occurred while the automobile was yet some
distance away; and from this moment it was not longer within the power of the plaintiff to escape being run down by
going to a place of greater safety. The control of the situation had then passed entirely to the defendant; and it was his duty
either to bring his car to an immediate stop or, seeing that there were no other persons on the bridge, to take the other side
and pass sufficiently far away from the horse to avoid the danger of collision. Instead of doing this, the defendant ran
straight on until he was almost upon the horse. He was, we think, deceived into doing this by the fact that the horse had
not yet exhibited fright. But in view of the known nature of horses, there was an appreciable risk that, if the animal in
question was unacquainted with automobiles, he might get exited and jump under the conditions which here confronted
him. When the defendant exposed the horse and rider to this danger he was, in our opinion, negligent in the eye of the law.
The test by which to determine the existence of negligence in a particular case may be stated as follows: Did the defendant
in doing the alleged negligent act use that person would have used in the same situation? If not, then he is guilty of
negligence. The law here in effect adopts the standard supposed to be supplied by the imaginary conduct of the discreet

paterfamilias of the Roman law. The existence of negligence in a given case is not determined by reference to the personal
judgment of the actor in the situation before him. The law considers what would be reckless, blameworthy, or negligent in
the man of ordinary intelligence and prudence and determines liability by that.
The question as to what would constitute the conduct of a prudent man in a given situation must of course be always
determined in the light of human experience and in view of the facts involved in the particular case. Abstract speculations
cannot here be of much value but this much can be profitably said: Reasonable men govern their conduct by the
circumstances which are before them or known to them. They are not, and are not supposed to be, omniscient of the
future. Hence they can be expected to take care only when there is something before them to suggest or warn of danger.
Could a prudent man, in the case under consideration, foresee harm as a result of the course actually pursued? If so, it was
the duty of the actor to take precautions to guard against that harm. Reasonable foresight of harm, followed by ignoring of
the suggestion born of this prevision, is always necessary before negligence can be held to exist. Stated in these terms, the
proper criterion for determining the existence of negligence in a given case is this: Conduct is said to be negligent when a
prudent man in the position of the tortfeasor would have foreseen that an effect harmful to another was sufficiently
probable to warrant his foregoing conduct or guarding against its consequences.
Applying this test to the conduct of the defendant in the present case we think that negligence is clearly established. A
prudent man, placed in the position of the defendant, would in our opinion, have recognized that the course which he was
pursuing was fraught with risk, and would therefore have foreseen harm to the horse and the rider as reasonable
consequence of that course. Under these circumstances the law imposed on the defendant the duty to guard against the
threatened harm.
It goes without saying that the plaintiff himself was not free from fault, for he was guilty of antecedent negligence in
planting himself on the wrong side of the road. But as we have already stated, the defendant was also negligent; and in
such case the problem always is to discover which agent is immediately and directly responsible. It will be noted that the
negligent acts of the two parties were not contemporaneous, since the negligence of the defendant succeeded the
negligence of the plaintiff by an appreciable interval. Under these circumstances the law is that the person who has the last
fair chance to avoid the impending harm and fails to do so is chargeable with the consequences, without reference to the
prior negligence of the other party.
The decision in the case of Rkes vs. Atlantic, Gulf and Pacific Co. (7 Phil. Rep., 359) should perhaps be mentioned in this
connection. This Court there held that while contributory negligence on the part of the person injured did not constitute a
bar to recovery, it could be received in evidence to reduce the damages which would otherwise have been assessed wholly
against the other party. The defendant company had there employed the plaintiff, as a laborer, to assist in transporting iron
rails from a barge in Manila harbor to the company's yards located not far away. The rails were conveyed upon cars which
were hauled along a narrow track. At certain spot near the water's edge the track gave way by reason of the combined
effect of the weight of the car and the insecurity of the road bed. The car was in consequence upset; the rails slid off; and
the plaintiff's leg was caught and broken. It appeared in evidence that the accident was due to the effects of the typhoon
which had dislodged one of the supports of the track. The court found that the defendant company was negligent in having
failed to repair the bed of the track and also that the plaintiff was, at the moment of the accident, guilty of contributory
negligence in walking at the side of the car instead of being in front or behind. It was held that while the defendant was
liable to the plaintiff by reason of its negligence in having failed to keep the track in proper repair nevertheless the amount
of the damages should be reduced on account of the contributory negligence in the plaintiff. As will be seen the
defendant's negligence in that case consisted in an omission only. The liability of the company arose from its
responsibility for the dangerous condition of its track. In a case like the one now before us, where the defendant was
actually present and operating the automobile which caused the damage, we do not feel constrained to attempt to weigh
the negligence of the respective parties in order to apportion the damage according to the degree of their relative fault. It is
enough to say that the negligence of the defendant was in this case the immediate and determining cause of the accident
and that the antecedent negligence of the plaintiff was a more remote factor in the case.
A point of minor importance in the case is indicated in the special defense pleaded in the defendant's answer, to the effect
that the subject matter of the action had been previously adjudicated in the court of a justice of the peace. In this
connection it appears that soon after the accident in question occurred, the plaintiff caused criminal proceedings to be
instituted before a justice of the peace charging the defendant with the infliction of serious injuries (lesiones graves). At
the preliminary investigation the defendant was discharged by the magistrate and the proceedings were dismissed.
Conceding that the acquittal of the defendant at the trial upon the merits in a criminal prosecution for the offense

mentioned would be res adjudicata upon the question of his civil liability arising from negligence -- a point upon which it
is unnecessary to express an opinion -- the action of the justice of the peace in dismissing the criminal proceeding upon
the preliminary hearing can have no effect. (See U. S. vs. Banzuela and Banzuela, 31 Phil. Rep., 564.)
From what has been said it results that the judgment of the lower court must be reversed, and judgment is her rendered
that the plaintiff recover of the defendant the sum of two hundred pesos (P200), with costs of other instances. The sum
here awarded is estimated to include the value of the horse, medical expenses of the plaintiff, the loss or damage
occasioned to articles of his apparel, and lawful interest on the whole to the date of this recovery. The other damages
claimed by the plaintiff are remote or otherwise of such character as not to be recoverable. So ordered.

8. HEDY GAN y YU, petitioner, vs. CA and the PEOPLE OF THE PHILIPPINES, respondents.
Pacis, Baluyot, Reyes & De Leon for petitioner.
The Solicitor General for respondents.
FERNAN, C.J.:
Petitioner Hedy Gan was convicted of the crime of Homicide thru Reckless Imprudence in Criminal Case No. 10201 of
the then Court of First Instance of Manila, Branch XXII presided by Judge Federico C. Alikpala. She was sentenced to an
indeterminate penalty of four (4) months and one (1) day of arresto mayor as minimum and two (2) years, four (4) months
and one (1) day of prision correccional as maximum and was made to indemnify the heirs of the victim the sum of
P12,000.00 without any subsidiary imprisonment in case of insolvency and to pay the costs. On appeal, the trial court's
decision was modified and petitioner was convicted only of Homicide thru Simple Imprudence. Still unsatisfied with the
decision of the Court of Appeals, 1 petitioner has come to this Court for a complete reversal of the judgment below.
The facts of the case as found by the appellate court are as follows:
In the morning of July 4, 1972 at about 8:00 o'clock, the accused Hedy Gan was driving a Toyota car
along North Bay Boulevard, Tondo, Manila. While in front of house no. 694 of North Bay Boulevard,
there were two vehicles, a truck and a jeepney parked on one side of the road, one following the other
about two to three meters from each other. As the car driven by the accused approached the place where
the two vehicles were parked, there was a vehicle coming from the opposite direction, followed by
another which tried to overtake and bypass the one in front of it and thereby encroached the lane of the
car driven by the accused. To avoid a head-on collision with the oncoming vehicle, the defendant swerved
to the right and as a consequence, the front bumper of the Toyota Crown Sedan hit an old man who was
about to cross the boulevard from south to north, pinning him against the rear of the parked jeepney. The
force of the impact caused the parked jeepney to move forward hitting the rear of the parts truck ahead of
it. The pedestrian was injured, the Toyota Sedan was damaged on its front, the jeep suffered damages on
its rear and front paints, and the truck sustained scratches at the wooden portion of its rear. The body of
the old man who was later Identified as Isidoro Casino was immediately brought to the Jose Reyes
Memorial Hospital but was (pronounced) dead on arrival. 2
An information for Homicide thru Reckless Imprudence was filed against petitioner in view of the above incident. She
entered a plea of not guilty upon arraignment and the case was set for trial.
Meanwhile, petitioner sought and was granted a re-investigation by the City Fiscal, as a result of which the trial fiscal
moved for the dismissal of the case against petitioner during the resumption of hearing on September 7, 1972. The
grounds cited therefor were lack of interest on the part of the complaining witness to prosecute the case as evidenced by
an affidavit of desistance submitted to the trial court and lack of eyewitness to sustain the charge.
The motion to dismiss filed by the fiscal was never resolved. The Court instead ordered the prosecution to present its
evidence. After the prosecution rested its case, the petitioner filed a motion to dismiss the case on the ground of
insufficiency of evidence.

On December 22, 1972, the trial court rendered judgment finding petitioner guilty beyond reasonable doubt of the ofoffense charged.
Petitioner appealed to the Court of Appeals in CA-G.R. No. 14472-CR. On May 3, 1976, the Court of Appeals rendered a
decision, the dispositive portion of which reads as follows:
Wherefore, as modified, the accused Hedy Gan is guilty beyond reasonable doubt of the crime of
homicide thru simple imprudence and, pursuant to paragraph 2, Article 365 of the Revised Penal Code,
she is hereby sentenced to the indeterminate penalty of three (3) months and eleven (11) days of arresto
mayor and to indemnify the heirs of Isidoro Casino in the sum of Twelve Thousand Pesos (Pl2,000.00)
without, however, any subsidiary imprisonment in case of insolvency, and to pay the costs. 3
Petitioner now appeals to this Court on the following assignments of errors:
I
The Court of Appeals erred in holding that when the petitioner saw a car travelling directly towards her,
she should have stepped on the brakes immediately or in swerving her vehicle to the right should have
also stepped on the brakes or lessened her speed, to avoid the death of a pedestrian.
II
The Court of Appeals erred in convicting the petitioner of the crime of Homicide thru Simple
Imprudence.
III
The Court of Appeals erred in adjudging the petitioner liable to indemnify the deceased in the sum of
P12,000.00. 4
We reverse.
The test for determining whether or not a person is negligent in doing an act whereby injury or damage results to the
person or property of another is this: Would a prudent man in the position of the person to whom negligence is attributed
foresee harm to the person injured as a reasonable consequence of the course about to be pursued? If so, the law imposes
the duty oil the doer to take precaution against its mischievous results and the failure to do so constitutes negligence. 5
A corollary rule is what is known in the law as the emergency rule. "Under that rule, one who suddenly finds himself in a
place of danger, and is required to act without time to consider the best means that may be adopted to avoid the impending
danger, is not guilty of negligence, if he fails to adopt what subsequently and upon reflection may appear to have been a
better method, unless the emergency in which he finds himself is brought about by his own negligence." 6
Applying the above test to the case at bar, we find the petitioner not guilty of the crime of Simple Imprudence resulting in
Homicide.
The appellate court in finding the petitioner guilty said:
The accused should have stepped on the brakes when she saw the car going in the opposite direction
followed by another which overtook the first by passing towards its left. She should not only have
swerved the car she was driving to the right but should have also tried to stop or lessen her speed so that
she would not bump into the pedestrian who was crossing at the time but also the jeepney which was then
parked along the street. 7
The course of action suggested by the appellate court would seem reasonable were it not for the fact that such suggestion
did not take into account the amount of time afforded petitioner to react to the situation she was in. For it is undeniable

that the suggested course of action presupposes sufficient time for appellant to analyze the situation confronting her and to
ponder on which of the different courses of action would result in the least possible harm to herself and to others.
Due to the lack of eyewitnesses, no evidence was presented by the prosecution with respect to the relative distances of
petitioner to the parked jeepney and the oncoming overtaking vehicle that would tend to prove that petitioner did have
sufficient time to reflect on the consequences of her instant decision to swerve her car to the light without stepping on her
brakes. In fact, the evidence presented by the prosecution on this point is the petitioner's statement to the police 8 stating::
And masasabi ko lang ho umiwas ho ako sa isang sasakyan na biglang nagovertake sa sasakyan na aking
kasalubong kung kaya ay aking kinabig sa kanan ang akin kotse subalit siya naman biglang pagtawid ng
tao o victim at hindi ko na ho naiwasan at ako ay wala ng magawa . Iyan ho ang buong pangyayari nang
nasabing aksidente. 9 (Emphasis supplied)
The prosecution having presented this exhibit as its own evidence, we cannot but deem its veracity to have been admitted
by it. Thus, under the circumstances narrated by petitioner, we find that the appellate court is asking too much from a
mere mortal like the petitioner who in the blink of an eye had to exercise her best judgment to extricate herself from a
difficult and dangerous situation caused by the driver of the overtaking vehicle. Petitioner certainly could not be expected
to act with all the coolness of a person under normal conditions. 10 The danger confronting petitioner was real and
imminent, threatening her very existence. She had no opportunity for rational thinking but only enough time to heed the
very powerfull instinct of self-preservation.
Also, the respondent court itself pronounced that the petitioner was driving her car within the legal limits. We therefore
rule that the "emergency rule" enunciated above applies with full force to the case at bar and consequently absolve
petitioner from any criminal negligence in connection with the incident under consideration.
We further set aside the award of damages to the heirs of the victim, who by executing a release of the claim due them,
had effectively and clearly waived their right thereto.
WHEREFORE, judgment is hereby rendered acquitting petitioner HEDY GAN y YU of the crime of Homicide thru
Simple Imprudence. She is no longer liable for the P12,000.00 civil indemnity awarded by the appellate court to the heirs
of the victim.
SO ORDERED.

9. G.R. No. 188288

January 16, 2012

SPOUSES FERNANDO and LOURDES VILORIA, Petitioners, vs. CONTINENTAL AIRLINES, INC.,
DECISION
REYES, J.:
This is a petition for review under Rule 45 of the Rules of Court from the January 30, 2009 Decision 1 of the Special
Thirteenth Division of the Court of Appeals (CA) in CA-G.R. CV No. 88586 entitled "Spouses Fernando and Lourdes
Viloria v. Continental Airlines, Inc.," the dispositive portion of which states:
WHEREFORE, the Decision of the Regional Trial Court, Branch 74, dated 03 April 2006, awarding US$800.00 or its
peso equivalent at the time of payment, plus legal rate of interest from 21 July 1997 until fully paid, [P]100,000.00 as
moral damages, [P]50,000.00 as exemplary damages, [P]40,000.00 as attorneys fees and costs of suit to plaintiffsappellees is hereby REVERSED and SET ASIDE.
Defendant-appellants counterclaim is DENIED.

Costs against plaintiffs-appellees.

SO ORDERED.2
On April 3, 2006, the Regional Trial Court of Antipolo City, Branch 74 (RTC) rendered a Decision, giving due course to
the complaint for sum of money and damages filed by petitioners Fernando Viloria (Fernando) and Lourdes Viloria
(Lourdes), collectively called Spouses Viloria, against respondent Continental Airlines, Inc. (CAI). As culled from the
records, below are the facts giving rise to such complaint.
On or about July 21, 1997 and while in the United States, Fernando purchased for himself and his wife, Lourdes, two (2)
round trip airline tickets from San Diego, California to Newark, New Jersey on board Continental Airlines. Fernando
purchased the tickets at US$400.00 each from a travel agency called "Holiday Travel" and was attended to by a certain
Margaret Mager (Mager). According to Spouses Viloria, Fernando agreed to buy the said tickets after Mager informed
them that there were no available seats at Amtrak, an intercity passenger train service provider in the United States. Per
the tickets, Spouses Viloria were scheduled to leave for Newark on August 13, 1997 and return to San Diego on August
21, 1997.
Subsequently, Fernando requested Mager to reschedule their flight to Newark to an earlier date or August 6, 1997. Mager
informed him that flights to Newark via Continental Airlines were already fully booked and offered the alternative of a
round trip flight via Frontier Air. Since flying with Frontier Air called for a higher fare of US$526.00 per passenger and
would mean traveling by night, Fernando opted to request for a refund. Mager, however, denied his request as the subject
tickets are non-refundable and the only option that Continental Airlines can offer is the re-issuance of new tickets within
one (1) year from the date the subject tickets were issued. Fernando decided to reserve two (2) seats with Frontier Air.
As he was having second thoughts on traveling via Frontier Air, Fernando went to the Greyhound Station where he saw an
Amtrak station nearby. Fernando made inquiries and was told that there are seats available and he can travel on Amtrak
anytime and any day he pleased. Fernando then purchased two (2) tickets for Washington, D.C.
From Amtrak, Fernando went to Holiday Travel and confronted Mager with the Amtrak tickets, telling her that she had
misled them into buying the Continental Airlines tickets by misrepresenting that Amtrak was already fully booked.
Fernando reiterated his demand for a refund but Mager was firm in her position that the subject tickets are non-refundable.
Upon returning to the Philippines, Fernando sent a letter to CAI on February 11, 1998, demanding a refund and alleging
that Mager had deluded them into purchasing the subject tickets. 3
In a letter dated February 24, 1998, Continental Micronesia informed Fernando that his complaint had been referred to the
Customer Refund Services of Continental Airlines at Houston, Texas. 4
In a letter dated March 24, 1998, Continental Micronesia denied Fernandos request for a refund and advised him that he
may take the subject tickets to any Continental ticketing location for the re-issuance of new tickets within two (2) years
from the date they were issued. Continental Micronesia informed Fernando that the subject tickets may be used as a form
of payment for the purchase of another Continental ticket, albeit with a re-issuance fee. 5
On June 17, 1999, Fernando went to Continentals ticketing office at Ayala Avenue, Makati City to have the subject tickets
replaced by a single round trip ticket to Los Angeles, California under his name. Therein, Fernando was informed that
Lourdes ticket was non-transferable, thus, cannot be used for the purchase of a ticket in his favor. He was also informed
that a round trip ticket to Los Angeles was US$1,867.40 so he would have to pay what will not be covered by the value of
his San Diego to Newark round trip ticket.
In a letter dated June 21, 1999, Fernando demanded for the refund of the subject tickets as he no longer wished to have
them replaced. In addition to the dubious circumstances under which the subject tickets were issued, Fernando claimed
that CAIs act of charging him with US$1,867.40 for a round trip ticket to Los Angeles, which other airlines priced at
US$856.00, and refusal to allow him to use Lourdes ticket, breached its undertaking under its March 24, 1998 letter. 6

On September 8, 2000, Spouses Viloria filed a complaint against CAI, praying that CAI be ordered to refund the money
they used in the purchase of the subject tickets with legal interest from July 21, 1997 and to payP1,000,000.00 as moral
damages, P500,000.00 as exemplary damages and P250,000.00 as attorneys fees.7
CAI interposed the following defenses: (a) Spouses Viloria have no right to ask for a refund as the subject tickets are nonrefundable; (b) Fernando cannot insist on using the ticket in Lourdes name for the purchase of a round trip ticket to Los
Angeles since the same is non-transferable; (c) as Mager is not a CAI employee, CAI is not liable for any of her acts; (d)
CAI, its employees and agents did not act in bad faith as to entitle Spouses Viloria to moral and exemplary damages and
attorneys fees. CAI also invoked the following clause printed on the subject tickets:
3. To the extent not in conflict with the foregoing carriage and other services performed by each carrier are subject to: (i)
provisions contained in this ticket, (ii) applicable tariffs, (iii) carriers conditions of carriage and related regulations which
are made part hereof (and are available on application at the offices of carrier), except in transportation between a place in
the United States or Canada and any place outside thereof to which tariffs in force in those countries apply. 8
According to CAI, one of the conditions attached to their contract of carriage is the non-transferability and nonrefundability of the subject tickets.
The RTCs Ruling
Following a full-blown trial, the RTC rendered its April 3, 2006 Decision, holding that Spouses Viloria are entitled to a
refund in view of Magers misrepresentation in obtaining their consent in the purchase of the subject tickets. 9The relevant
portion of the April 3, 2006 Decision states:
Continental Airlines agent Ms. Mager was in bad faith when she was less candid and diligent in presenting to plaintiffs
spouses their booking options. Plaintiff Fernando clearly wanted to travel via AMTRAK, but defendants agent misled
him into purchasing Continental Airlines tickets instead on the fraudulent misrepresentation that Amtrak was fully
booked. In fact, defendant Airline did not specifically denied (sic) this allegation.
Plainly, plaintiffs spouses, particularly plaintiff Fernando, were tricked into buying Continental Airline tickets on Ms.
Magers misleading misrepresentations. Continental Airlines agent Ms. Mager further relied on and exploited plaintiff
Fernandos need and told him that they must book a flight immediately or risk not being able to travel at all on the
couples preferred date. Unfortunately, plaintiffs spouses fell prey to the airlines and its agents unethical tactics for
baiting trusting customers."10
Citing Articles 1868 and 1869 of the Civil Code, the RTC ruled that Mager is CAIs agent, hence, bound by her bad faith
and misrepresentation. As far as the RTC is concerned, there is no issue as to whether Mager was CAIs agent in view of
CAIs implied recognition of her status as such in its March 24, 1998 letter.
The act of a travel agent or agency being involved here, the following are the pertinent New Civil Code provisions on
agency:
Art. 1868. By the contract of agency a person binds himself to render some service or to do something in representation or
on behalf of another, with the consent or authority of the latter.
Art. 1869. Agency may be express, or implied from the acts of the principal, from his silence or lack of action, or his
failure to repudiate the agency, knowing that another person is acting on his behalf without authority.
Agency may be oral, unless the law requires a specific form.
As its very name implies, a travel agency binds itself to render some service or to do something in representation or on
behalf of another, with the consent or authority of the latter. This court takes judicial notice of the common services
rendered by travel agencies that represent themselves as such, specifically the reservation and booking of local and
foreign tours as well as the issuance of airline tickets for a commission or fee.

The services rendered by Ms. Mager of Holiday Travel agency to the plaintiff spouses on July 21, 1997 were no different
from those offered in any other travel agency. Defendant airline impliedly if not expressly acknowledged its principalagent relationship with Ms. Mager by its offer in the letter dated March 24, 1998 an obvious attempt to assuage
plaintiffs spouses hurt feelings.11
Furthermore, the RTC ruled that CAI acted in bad faith in reneging on its undertaking to replace the subject tickets within
two (2) years from their date of issue when it charged Fernando with the amount of US$1,867.40 for a round trip ticket to
Los Angeles and when it refused to allow Fernando to use Lourdes ticket. Specifically:
Tickets may be reissued for up to two years from the original date of issue. When defendant airline still charged plaintiffs
spouses US$1,867.40 or more than double the then going rate of US$856.00 for the unused tickets when the same were
presented within two (2) years from date of issue, defendant airline exhibited callous treatment of passengers. 12
The Appellate Courts Ruling
On appeal, the CA reversed the RTCs April 3, 2006 Decision, holding that CAI cannot be held liable for Magers act in
the absence of any proof that a principal-agent relationship existed between CAI and Holiday Travel. According to the
CA, Spouses Viloria, who have the burden of proof to establish the fact of agency, failed to present evidence
demonstrating that Holiday Travel is CAIs agent. Furthermore, contrary to Spouses Vilorias claim, the contractual
relationship between Holiday Travel and CAI is not an agency but that of a sale.
Plaintiffs-appellees assert that Mager was a sub-agent of Holiday Travel who was in turn a ticketing agent of Holiday
Travel who was in turn a ticketing agent of Continental Airlines. Proceeding from this premise, they contend that
Continental Airlines should be held liable for the acts of Mager. The trial court held the same view.
We do not agree. By the contract of agency, a person binds him/herself to render some service or to do something in
representation or on behalf of another, with the consent or authority of the latter. The elements of agency are: (1) consent,
express or implied, of the parties to establish the relationship; (2) the object is the execution of a juridical act in relation to
a third person; (3) the agent acts as a representative and not for him/herself; and (4) the agent acts within the scope of
his/her authority. As the basis of agency is representation, there must be, on the part of the principal, an actual intention to
appoint, an intention naturally inferable from the principals words or actions. In the same manner, there must be an
intention on the part of the agent to accept the appointment and act upon it. Absent such mutual intent, there is generally
no agency. It is likewise a settled rule that persons dealing with an assumed agent are bound at their peril, if they would
hold the principal liable, to ascertain not only the fact of agency but also the nature and extent of authority, and in case
either is controverted, the burden of proof is upon them to establish it. Agency is never presumed, neither is it created by
the mere use of the word in a trade or business name. We have perused the evidence and documents so far presented. We
find nothing except bare allegations of plaintiffs-appellees that Mager/Holiday Travel was acting in behalf of Continental
Airlines. From all sides of legal prism, the transaction in issue was simply a contract of sale, wherein Holiday Travel buys
airline tickets from Continental Airlines and then, through its employees, Mager included, sells it at a premium to clients. 13
The CA also ruled that refund is not available to Spouses Viloria as the word "non-refundable" was clearly printed on the
face of the subject tickets, which constitute their contract with CAI. Therefore, the grant of their prayer for a refund would
violate the proscription against impairment of contracts.
Finally, the CA held that CAI did not act in bad faith when they charged Spouses Viloria with the higher amount of
US$1,867.40 for a round trip ticket to Los Angeles. According to the CA, there is no compulsion for CAI to charge the
lower amount of US$856.00, which Spouses Viloria claim to be the fee charged by other airlines. The matter of fixing the
prices for its services is CAIs prerogative, which Spouses Viloria cannot intervene. In particular:
It is within the respective rights of persons owning and/or operating business entities to peg the premium of the services
and items which they provide at a price which they deem fit, no matter how expensive or exhorbitant said price may
seem vis--vis those of the competing companies. The Spouses Viloria may not intervene with the business judgment of
Continental Airlines.14
The Petitioners Case

In this Petition, this Court is being asked to review the findings and conclusions of the CA, as the latters reversal of the
RTCs April 3, 2006 Decision allegedly lacks factual and legal bases. Spouses Viloria claim that CAI acted in bad faith
when it required them to pay a higher amount for a round trip ticket to Los Angeles considering CAIs undertaking to reissue new tickets to them within the period stated in their March 24, 1998 letter. CAI likewise acted in bad faith when it
disallowed Fernando to use Lourdes ticket to purchase a round trip to Los Angeles given that there is nothing in Lourdes
ticket indicating that it is non-transferable. As a common carrier, it is CAIs duty to inform its passengers of the terms and
conditions of their contract and passengers cannot be bound by such terms and conditions which they are not made aware
of. Also, the subject contract of carriage is a contract of adhesion; therefore, any ambiguities should be construed against
CAI. Notably, the petitioners are no longer questioning the validity of the subject contracts and limited its claim for a
refund on CAIs alleged breach of its undertaking in its March 24, 1998 letter.
The Respondents Case
In its Comment, CAI claimed that Spouses Vilorias allegation of bad faith is negated by its willingness to issue new
tickets to them and to credit the value of the subject tickets against the value of the new ticket Fernando requested. CAI
argued that Spouses Vilorias sole basis to claim that the price at which CAI was willing to issue the new tickets is
unconscionable is a piece of hearsay evidence an advertisement appearing on a newspaper stating that airfares from
Manila to Los Angeles or San Francisco cost US$818.00. 15 Also, the advertisement pertains to airfares in September 2000
and not to airfares prevailing in June 1999, the time when Fernando asked CAI to apply the value of the subject tickets for
the purchase of a new one.16 CAI likewise argued that it did not undertake to protect Spouses Viloria from any changes or
fluctuations in the prices of airline tickets and its only obligation was to apply the value of the subject tickets to the
purchase of the newly issued tickets.
With respect to Spouses Vilorias claim that they are not aware of CAIs restrictions on the subject tickets and that the
terms and conditions that are printed on them are ambiguous, CAI denies any ambiguity and alleged that its representative
informed Fernando that the subject tickets are non-transferable when he applied for the issuance of a new ticket. On the
other hand, the word "non-refundable" clearly appears on the face of the subject tickets.
CAI also denies that it is bound by the acts of Holiday Travel and Mager and that no principal-agency relationship exists
between them. As an independent contractor, Holiday Travel was without capacity to bind CAI.
Issues
To determine the propriety of disturbing the CAs January 30, 2009 Decision and whether Spouses Viloria have the right
to the reliefs they prayed for, this Court deems it necessary to resolve the following issues:
a. Does a principal-agent relationship exist between CAI and Holiday Travel?
b. Assuming that an agency relationship exists between CAI and Holiday Travel, is CAI bound by the acts of
Holiday Travels agents and employees such as Mager?
c. Assuming that CAI is bound by the acts of Holiday Travels agents and employees, can the representation of
Mager as to unavailability of seats at Amtrak be considered fraudulent as to vitiate the consent of Spouse Viloria
in the purchase of the subject tickets?
d. Is CAI justified in insisting that the subject tickets are non-transferable and non-refundable?
e. Is CAI justified in pegging a different price for the round trip ticket to Los Angeles requested by Fernando?
f. Alternatively, did CAI act in bad faith or renege its obligation to Spouses Viloria to apply the value of the
subject tickets in the purchase of new ones when it refused to allow Fernando to use Lourdes ticket and in
charging a higher price for a round trip ticket to Los Angeles?
This Courts Ruling

I. A principal-agent relationship exists between CAI and Holiday Travel.

With respect to the first issue, which is a question of fact that would require this Court to review and re-examine the
evidence presented by the parties below, this Court takes exception to the general rule that the CAs findings of fact are
conclusive upon Us and our jurisdiction is limited to the review of questions of law. It is well-settled to the point of being
axiomatic that this Court is authorized to resolve questions of fact if confronted with contrasting factual findings of the
trial court and appellate court and if the findings of the CA are contradicted by the evidence on record. 17
According to the CA, agency is never presumed and that he who alleges that it exists has the burden of proof. Spouses
Viloria, on whose shoulders such burden rests, presented evidence that fell short of indubitably demonstrating the
existence of such agency.
We disagree. The CA failed to consider undisputed facts, discrediting CAIs denial that Holiday Travel is one of its agents.
Furthermore, in erroneously characterizing the contractual relationship between CAI and Holiday Travel as a contract of
sale, the CA failed to apply the fundamental civil law principles governing agency and differentiating it from sale.
In Rallos v. Felix Go Chan & Sons Realty Corporation,18 this Court explained the nature of an agency and spelled out the
essential elements thereof:
Out of the above given principles, sprung the creation and acceptance of the relationship of agencywhereby one party,
called the principal (mandante), authorizes another, called the agent (mandatario), to act for and in his behalf in
transactions with third persons. The essential elements of agency are: (1) there is consent, express or implied of the parties
to establish the relationship; (2) the object is the execution of a juridical act in relation to a third person; (3) the agent acts
as a representative and not for himself, and (4) the agent acts within the scope of his authority.1avvphi1
Agency is basically personal, representative, and derivative in nature. The authority of the agent to act emanates from the
powers granted to him by his principal; his act is the act of the principal if done within the scope of the authority. Qui facit
per alium facit se. "He who acts through another acts himself."19
Contrary to the findings of the CA, all the elements of an agency exist in this case. The first and second elements are
present as CAI does not deny that it concluded an agreement with Holiday Travel, whereby Holiday Travel would enter
into contracts of carriage with third persons on CAIs behalf. The third element is also present as it is undisputed that
Holiday Travel merely acted in a representative capacity and it is CAI and not Holiday Travel who is bound by the
contracts of carriage entered into by Holiday Travel on its behalf. The fourth element is also present considering that CAI
has not made any allegation that Holiday Travel exceeded the authority that was granted to it. In fact, CAI consistently
maintains the validity of the contracts of carriage that Holiday Travel executed with Spouses Viloria and that Mager was
not guilty of any fraudulent misrepresentation. That CAI admits the authority of Holiday Travel to enter into contracts of
carriage on its behalf is easily discernible from its February 24, 1998 and March 24, 1998 letters, where it impliedly
recognized the validity of the contracts entered into by Holiday Travel with Spouses Viloria. When Fernando informed
CAI that it was Holiday Travel who issued to them the subject tickets, CAI did not deny that Holiday Travel is its
authorized agent.
Prior to Spouses Vilorias filing of a complaint against it, CAI never refuted that it gave Holiday Travel the power and
authority to conclude contracts of carriage on its behalf. As clearly extant from the records, CAI recognized the validity of
the contracts of carriage that Holiday Travel entered into with Spouses Viloria and considered itself bound with Spouses
Viloria by the terms and conditions thereof; and this constitutes an unequivocal testament to Holiday Travels authority to
act as its agent. This Court cannot therefore allow CAI to take an altogether different position and deny that Holiday
Travel is its agent without condoning or giving imprimatur to whatever damage or prejudice that may result from such
denial or retraction to Spouses Viloria, who relied on good faith on CAIs acts in recognition of Holiday Travels
authority. Estoppel is primarily based on the doctrine of good faith and the avoidance of harm that will befall an innocent
party due to its injurious reliance, the failure to apply it in this case would result in gross travesty of justice. 20 Estoppel
bars CAI from making such denial.

As categorically provided under Article 1869 of the Civil Code, "[a]gency may be express, or implied from the acts of the
principal, from his silence or lack of action, or his failure to repudiate the agency, knowing that another person is acting
on his behalf without authority."
Considering that the fundamental hallmarks of an agency are present, this Court finds it rather peculiar that the CA had
branded the contractual relationship between CAI and Holiday Travel as one of sale. The distinctions between a sale and
an agency are not difficult to discern and this Court, as early as 1970, had already formulated the guidelines that would aid
in differentiating the two (2) contracts. In Commissioner of Internal Revenue v. Constantino,21 this Court extrapolated that
the primordial differentiating consideration between the two (2) contracts is the transfer of ownership or title over the
property subject of the contract. In an agency, the principal retains ownership and control over the property and the agent
merely acts on the principals behalf and under his instructions in furtherance of the objectives for which the agency was
established. On the other hand, the contract is clearly a sale if the parties intended that the delivery of the property will
effect a relinquishment of title, control and ownership in such a way that the recipient may do with the property as he
pleases.
Since the company retained ownership of the goods, even as it delivered possession unto the dealer for resale to
customers, the price and terms of which were subject to the company's control, the relationship between the company and
the dealer is one of agency, tested under the following criterion:
"The difficulty in distinguishing between contracts of sale and the creation of an agency to sell has led to the
establishment of rules by the application of which this difficulty may be solved. The decisions say the transfer of title or
agreement to transfer it for a price paid or promised is the essence of sale. If such transfer puts the transferee in the
attitude or position of an owner and makes him liable to the transferor as a debtor for the agreed price, and not merely as
an agent who must account for the proceeds of a resale, the transaction is a sale; while the essence of an agency to sell is
the delivery to an agent, not as his property, but as the property of the principal, who remains the owner and has the right
to control sales, fix the price, and terms, demand and receive the proceeds less the agent's commission upon sales made. 1
Mechem on Sales, Sec. 43; 1 Mechem on Agency, Sec. 48; Williston on Sales, 1; Tiedeman on Sales, 1." (Salisbury v.
Brooks, 94 SE 117, 118-119)22
As to how the CA have arrived at the conclusion that the contract between CAI and Holiday Travel is a sale is certainly
confounding, considering that CAI is the one bound by the contracts of carriage embodied by the tickets being sold by
Holiday Travel on its behalf. It is undisputed that CAI and not Holiday Travel who is the party to the contracts of carriage
executed by Holiday Travel with third persons who desire to travel via Continental Airlines, and this conclusively
indicates the existence of a principal-agent relationship. That the principal is bound by all the obligations contracted by
the agent within the scope of the authority granted to him is clearly provided under Article 1910 of the Civil Code and this
constitutes the very notion of agency.
II. In actions based on quasi-delict, a principal can only be held liable for the tort committed by its agents
employees if it has been established by preponderance of evidence that the principal was also at fault or negligent
or that the principal exercise control and supervision over them.
Considering that Holiday Travel is CAIs agent, does it necessarily follow that CAI is liable for the fault or negligence of
Holiday Travels employees? Citing China Air Lines, Ltd. v. Court of Appeals, et al.,23CAI argues that it cannot be held
liable for the actions of the employee of its ticketing agent in the absence of an employer-employee relationship.
An examination of this Courts pronouncements in China Air Lines will reveal that an airline company is not completely
exonerated from any liability for the tort committed by its agents employees. A prior determination of the nature of the
passengers cause of action is necessary. If the passengers cause of action against the airline company is premised
on culpa aquiliana or quasi-delict for a tort committed by the employee of the airline companys agent, there must be an
independent showing that the airline company was at fault or negligent or has contributed to the negligence or tortuous
conduct committed by the employee of its agent. The mere fact that the employee of the airline companys agent has
committed a tort is not sufficient to hold the airline company liable. There is novinculum juris between the airline
company and its agents employees and the contractual relationship between the airline company and its agent does not
operate to create a juridical tie between the airline company and its agents employees. Article 2180 of the Civil Code
does not make the principal vicariously liable for the tort committed by its agents employees and the principal-agency

relationshipper se does not make the principal a party to such tort; hence, the need to prove the principals own fault or
negligence.
On the other hand, if the passengers cause of action for damages against the airline company is based on contractual
breach or culpa contractual, it is not necessary that there be evidence of the airline companys fault or negligence. As this
Court previously stated in China Air Lines and reiterated in Air France vs. Gillego,24 "in an action based on a breach of
contract of carriage, the aggrieved party does not have to prove that the common carrier was at fault or was negligent. All
that he has to prove is the existence of the contract and the fact of its non-performance by the carrier."
Spouses Vilorias cause of action on the basis of Magers alleged fraudulent misrepresentation is clearly one of tort or
quasi-delict, there being no pre-existing contractual relationship between them. Therefore, it was incumbent upon Spouses
Viloria to prove that CAI was equally at fault.
However, the records are devoid of any evidence by which CAIs alleged liability can be substantiated. Apart from their
claim that CAI must be held liable for Magers supposed fraud because Holiday Travel is CAIs agent, Spouses Viloria did
not present evidence that CAI was a party or had contributed to Magers complained act either by instructing or
authorizing Holiday Travel and Mager to issue the said misrepresentation.
It may seem unjust at first glance that CAI would consider Spouses Viloria bound by the terms and conditions of the
subject contracts, which Mager entered into with them on CAIs behalf, in order to deny Spouses Vilorias request for a
refund or Fernandos use of Lourdes ticket for the re-issuance of a new one, and simultaneously claim that they are not
bound by Magers supposed misrepresentation for purposes of avoiding Spouses Vilorias claim for damages and
maintaining the validity of the subject contracts. It may likewise be argued that CAI cannot deny liability as it benefited
from Magers acts, which were performed in compliance with Holiday Travels obligations as CAIs agent.
However, a persons vicarious liability is anchored on his possession of control, whether absolute or limited, on the
tortfeasor. Without such control, there is nothing which could justify extending the liability to a person other than the one
who committed the tort. As this Court explained in Cangco v. Manila Railroad Co.:25
With respect to extra-contractual obligation arising from negligence, whether of act or omission, it is competent for
the legislature to elect and our Legislature has so elected to limit such liability to cases in which the person upon
whom such an obligation is imposed is morally culpable or, on the contrary, for reasons of public policy, to extend that
liability, without regard to the lack of moral culpability, so as to include responsibility for the negligence of those
persons whose acts or omissions are imputable, by a legal fiction, to others who are in a position to exercise an
absolute or limited control over them. The legislature which adopted our Civil Code has elected to limit extracontractual liability with certain well-defined exceptions to cases in which moral culpability can be directly imputed
to the persons to be charged. This moral responsibility may consist in having failed to exercise due care in one's own acts,
or in having failed to exercise due care in the selection and control of one's agent or servants, or in the control of persons
who, by reasons of their status, occupy a position of dependency with respect to the person made liable for their
conduct.26 (emphasis supplied)
It is incumbent upon Spouses Viloria to prove that CAI exercised control or supervision over Mager by preponderant
evidence. The existence of control or supervision cannot be presumed and CAI is under no obligation to prove its denial
or nugatory assertion. Citing Belen v. Belen,27 this Court ruled in Jayme v. Apostol,28 that:
In Belen v. Belen, this Court ruled that it was enough for defendant to deny an alleged employment relationship. The
defendant is under no obligation to prove the negative averment. This Court said:
"It is an old and well-settled rule of the courts that the burden of proving the action is upon the plaintiff, and that if he fails
satisfactorily to show the facts upon which he bases his claim, the defendant is under no obligation to prove his
exceptions. This [rule] is in harmony with the provisions of Section 297 of the Code of Civil Procedure holding that each
party must prove his own affirmative allegations, etc." 29 (citations omitted)
Therefore, without a modicum of evidence that CAI exercised control over Holiday Travels employees or that CAI was
equally at fault, no liability can be imposed on CAI for Magers supposed misrepresentation.

III. Even on the assumption that CAI may be held liable for the acts of Mager, still, Spouses Viloria are not entitled
to a refund. Magers statement cannot be considered a causal fraud that would justify the annulment of the subject
contracts that would oblige CAI to indemnify Spouses Viloria and return the money they paid for the subject
tickets.
Article 1390, in relation to Article 1391 of the Civil Code, provides that if the consent of the contracting parties was
obtained through fraud, the contract is considered voidable and may be annulled within four (4) years from the time of the
discovery of the fraud. Once a contract is annulled, the parties are obliged under Article 1398 of the same Code to restore
to each other the things subject matter of the contract, including their fruits and interest.
On the basis of the foregoing and given the allegation of Spouses Viloria that Fernandos consent to the subject contracts
was supposedly secured by Mager through fraudulent means, it is plainly apparent that their demand for a refund is
tantamount to seeking for an annulment of the subject contracts on the ground of vitiated consent.
Whether the subject contracts are annullable, this Court is required to determine whether Magers alleged
misrepresentation constitutes causal fraud. Similar to the dispute on the existence of an agency, whether fraud attended the
execution of a contract is factual in nature and this Court, as discussed above, may scrutinize the records if the findings of
the CA are contrary to those of the RTC.
Under Article 1338 of the Civil Code, there is fraud when, through insidious words or machinations of one of the
contracting parties, the other is induced to enter into a contract which, without them, he would not have agreed to. In order
that fraud may vitiate consent, it must be the causal (dolo causante), not merely the incidental (dolo incidente),
inducement to the making of the contract.30 InSamson v. Court of Appeals,31 causal fraud was defined as "a deception
employed by one party prior to or simultaneous to the contract in order to secure the consent of the other." 32
Also, fraud must be serious and its existence must be established by clear and convincing evidence. As ruled by this Court
in Sierra v. Hon. Court of Appeals, et al.,33 mere preponderance of evidence is not adequate:
Fraud must also be discounted, for according to the Civil Code:
Art. 1338. There is fraud when, through insidious words or machinations of one of the contracting parties, the other is
induced to enter into a contract which without them, he would not have agreed to.
Art. 1344. In order that fraud may make a contract voidable, it should be serious and should not have been employed by
both contracting parties.
To quote Tolentino again, the "misrepresentation constituting the fraud must be established by full, clear, and convincing
evidence, and not merely by a preponderance thereof. The deceit must be serious. The fraud is serious when it is sufficient
to impress, or to lead an ordinarily prudent person into error; that which cannot deceive a prudent person cannot be a
ground for nullity. The circumstances of each case should be considered, taking into account the personal conditions of the
victim."34
After meticulously poring over the records, this Court finds that the fraud alleged by Spouses Viloria has not been
satisfactorily established as causal in nature to warrant the annulment of the subject contracts. In fact, Spouses Viloria
failed to prove by clear and convincing evidence that Magers statement was fraudulent. Specifically, Spouses Viloria
failed to prove that (a) there were indeed available seats at Amtrak for a trip to New Jersey on August 13, 1997 at the time
they spoke with Mager on July 21, 1997; (b) Mager knew about this; and (c) that she purposely informed them otherwise.
This Court finds the only proof of Magers alleged fraud, which is Fernandos testimony that an Amtrak had assured him
of the perennial availability of seats at Amtrak, to be wanting. As CAI correctly pointed out and as Fernando admitted, it
was possible that during the intervening period of three (3) weeks from the time Fernando purchased the subject tickets to
the time he talked to said Amtrak employee, other passengers may have cancelled their bookings and reservations with
Amtrak, making it possible for Amtrak to accommodate them. Indeed, the existence of fraud cannot be proved by mere
speculations and conjectures. Fraud is never lightly inferred; it is good faith that is. Under the Rules of Court, it is

presumed that "a person is innocent of crime or wrong" and that "private transactions have been fair and
regular."35 Spouses Viloria failed to overcome this presumption.
IV. Assuming the contrary, Spouses Viloria are nevertheless deemed to have ratified the subject contracts.
Even assuming that Magers representation is causal fraud, the subject contracts have been impliedly ratified when
Spouses Viloria decided to exercise their right to use the subject tickets for the purchase of new ones. Under Article 1392
of the Civil Code, "ratification extinguishes the action to annul a voidable contract."
Ratification of a voidable contract is defined under Article 1393 of the Civil Code as follows:
Art. 1393. Ratification may be effected expressly or tacitly. It is understood that there is a tacit ratification if, with
knowledge of the reason which renders the contract voidable and such reason having ceased, the person who has a right to
invoke it should execute an act which necessarily implies an intention to waive his right.
Implied ratification may take diverse forms, such as by silence or acquiescence; by acts showing approval or adoption of
the contract; or by acceptance and retention of benefits flowing therefrom. 36
Simultaneous with their demand for a refund on the ground of Fernandos vitiated consent, Spouses Viloria likewise asked
for a refund based on CAIs supposed bad faith in reneging on its undertaking to replace the subject tickets with a round
trip ticket from Manila to Los Angeles.
In doing so, Spouses Viloria are actually asking for a rescission of the subject contracts based on contractual breach.
Resolution, the action referred to in Article 1191, is based on the defendants breach of faith, a violation of the reciprocity
between the parties37 and in Solar Harvest, Inc. v. Davao Corrugated Carton Corporation,38 this Court ruled that a claim
for a reimbursement in view of the other partys failure to comply with his obligations under the contract is one for
rescission or resolution.
However, annulment under Article 1390 of the Civil Code and rescission under Article 1191 are two (2) inconsistent
remedies. In resolution, all the elements to make the contract valid are present; in annulment, one of the essential elements
to a formation of a contract, which is consent, is absent. In resolution, the defect is in the consummation stage of the
contract when the parties are in the process of performing their respective obligations; in annulment, the defect is already
present at the time of the negotiation and perfection stages of the contract. Accordingly, by pursuing the remedy of
rescission under Article 1191, the Vilorias had impliedly admitted the validity of the subject contracts, forfeiting their right
to demand their annulment. A party cannot rely on the contract and claim rights or obligations under it and at the same
time impugn its existence or validity. Indeed, litigants are enjoined from taking inconsistent positions. 39
V. Contracts cannot be rescinded for a slight or casual breach.
CAI cannot insist on the non-transferability of the subject tickets.
Considering that the subject contracts are not annullable on the ground of vitiated consent, the next question is: "Do
Spouses Viloria have the right to rescind the contract on the ground of CAIs supposed breach of its undertaking to issue
new tickets upon surrender of the subject tickets?"
Article 1191, as presently worded, states:
The power to rescind obligations is implied in reciprocal ones, in case one of the obligors should not comply with what is
incumbent upon him.
The injured party may choose between the fulfilment and the rescission of the obligation, with the payment of damages in
either case. He may also seek rescission, even after he has chosen fulfillment, if the latter should become impossible.
The court shall decree the rescission claimed, unless there be just cause authorizing the fixing of a period.

This is understood to be without prejudice to the rights of third persons who have acquired the thing, in accordance with
articles 1385 and 1388 and the Mortgage Law.
According to Spouses Viloria, CAI acted in bad faith and breached the subject contracts when it refused to apply the value
of Lourdes ticket for Fernandos purchase of a round trip ticket to Los Angeles and in requiring him to pay an amount
higher than the price fixed by other airline companies.
In its March 24, 1998 letter, CAI stated that "non-refundable tickets may be used as a form of payment toward the
purchase of another Continental ticket for $75.00, per ticket, reissue fee ($50.00, per ticket, for tickets purchased prior to
October 30, 1997)."
Clearly, there is nothing in the above-quoted section of CAIs letter from which the restriction on the non-transferability of
the subject tickets can be inferred. In fact, the words used by CAI in its letter supports the position of Spouses Viloria, that
each of them can use the ticket under their name for the purchase of new tickets whether for themselves or for some other
person.
Moreover, as CAI admitted, it was only when Fernando had expressed his interest to use the subject tickets for the
purchase of a round trip ticket between Manila and Los Angeles that he was informed that he cannot use the ticket in
Lourdes name as payment.
Contrary to CAIs claim, that the subject tickets are non-transferable cannot be implied from a plain reading of the
provision printed on the subject tickets stating that "[t]o the extent not in conflict with the foregoing carriage and other
services performed by each carrier are subject to: (a) provisions contained in this ticket, x x x (iii) carriers conditions of
carriage and related regulations which are made part hereof (and are available on application at the offices of carrier) x x
x." As a common carrier whose business is imbued with public interest, the exercise of extraordinary diligence requires
CAI to inform Spouses Viloria, or all of its passengers for that matter, of all the terms and conditions governing their
contract of carriage. CAI is proscribed from taking advantage of any ambiguity in the contract of carriage to impute
knowledge on its passengers of and demand compliance with a certain condition or undertaking that is not clearly
stipulated. Since the prohibition on transferability is not written on the face of the subject tickets and CAI failed to inform
Spouses Viloria thereof, CAI cannot refuse to apply the value of Lourdes ticket as payment for Fernandos purchase of a
new ticket.
CAIs refusal to accept Lourdes ticket for the purchase of a new ticket for Fernando is only a casual breach.
Nonetheless, the right to rescind a contract for non-performance of its stipulations is not absolute. The general rule is that
rescission of a contract will not be permitted for a slight or casual breach, but only for such substantial and fundamental
violations as would defeat the very object of the parties in making the agreement. 40 Whether a breach is substantial is
largely determined by the attendant circumstances. 41
While CAIs refusal to allow Fernando to use the value of Lourdes ticket as payment for the purchase of a new ticket is
unjustified as the non-transferability of the subject tickets was not clearly stipulated, it cannot, however be considered
substantial. The endorsability of the subject tickets is not an essential part of the underlying contracts and CAIs failure to
comply is not essential to its fulfillment of its undertaking to issue new tickets upon Spouses Vilorias surrender of the
subject tickets. This Court takes note of CAIs willingness to perform its principal obligation and this is to apply the price
of the ticket in Fernandos name to the price of the round trip ticket between Manila and Los Angeles. CAI was likewise
willing to accept the ticket in Lourdes name as full or partial payment as the case may be for the purchase of any ticket,
albeit under her name and for her exclusive use. In other words, CAIs willingness to comply with its undertaking under
its March 24, 1998 cannot be doubted, albeit tainted with its erroneous insistence that Lourdes ticket is non-transferable.
Moreover, Spouses Vilorias demand for rescission cannot prosper as CAI cannot be solely faulted for the fact that their
agreement failed to consummate and no new ticket was issued to Fernando. Spouses Viloria have no right to insist that a
single round trip ticket between Manila and Los Angeles should be priced at around $856.00 and refuse to pay the
difference between the price of the subject tickets and the amount fixed by CAI. The petitioners failed to allege, much less
prove, that CAI had obliged itself to issue to them tickets for any flight anywhere in the world upon their surrender of the
subject tickets. In its March 24, 1998 letter, it was clearly stated that "[n]on-refundable tickets may be used as a form of

payment toward the purchase of another Continental ticket"42 and there is nothing in it suggesting that CAI had obliged
itself to protect Spouses Viloria from any fluctuation in the prices of tickets or that the surrender of the subject tickets will
be considered as full payment for any ticket that the petitioners intend to buy regardless of actual price and destination.
The CA was correct in holding that it is CAIs right and exclusive prerogative to fix the prices for its services and it may
not be compelled to observe and maintain the prices of other airline companies. 43
The conflict as to the endorsability of the subject tickets is an altogether different matter, which does not preclude CAI
from fixing the price of a round trip ticket between Manila and Los Angeles in an amount it deems proper and which does
not provide Spouses Viloria an excuse not to pay such price, albeit subject to a reduction coming from the value of the
subject tickets. It cannot be denied that Spouses Viloria had the concomitant obligation to pay whatever is not covered by
the value of the subject tickets whether or not the subject tickets are transferable or not.1avvphi1
There is also no showing that Spouses Viloria were discriminated against in bad faith by being charged with a higher rate.
The only evidence the petitioners presented to prove that the price of a round trip ticket between Manila and Los Angeles
at that time was only $856.00 is a newspaper advertisement for another airline company, which is inadmissible for being
"hearsay evidence, twice removed." Newspaper clippings are hearsay if they were offered for the purpose of proving the
truth of the matter alleged. As ruled in Feria v. Court of Appeals,:44
[N]ewspaper articles amount to "hearsay evidence, twice removed" and are therefore not only inadmissible but without
any probative value at all whether objected to or not, unless offered for a purpose other than proving the truth of the
matter asserted. In this case, the news article is admissible only as evidence that such publication does exist with the tenor
of the news therein stated.45 (citations omitted)
The records of this case demonstrate that both parties were equally in default; hence, none of them can seek judicial
redress for the cancellation or resolution of the subject contracts and they are therefore bound to their respective
obligations thereunder. As the 1st sentence of Article 1192 provides:
Art. 1192. In case both parties have committed a breach of the obligation, the liability of the first infractor shall be
equitably tempered by the courts. If it cannot be determined which of the parties first violated the contract, the same
shall be deemed extinguished, and each shall bear his own damages. (emphasis supplied)
Therefore, CAIs liability for damages for its refusal to accept Lourdes ticket for the purchase of Fernandos round trip
ticket is offset by Spouses Vilorias liability for their refusal to pay the amount, which is not covered by the subject
tickets. Moreover, the contract between them remains, hence, CAI is duty bound to issue new tickets for a destination
chosen by Spouses Viloria upon their surrender of the subject tickets and Spouses Viloria are obliged to pay whatever
amount is not covered by the value of the subject tickets.
This Court made a similar ruling in Central Bank of the Philippines v. Court of Appeals.46 Thus:
Since both parties were in default in the performance of their respective reciprocal obligations, that is, Island Savings
Bank failed to comply with its obligation to furnish the entire loan and Sulpicio M. Tolentino failed to comply with his
obligation to pay his P17,000.00 debt within 3 years as stipulated, they are both liable for damages.
Article 1192 of the Civil Code provides that in case both parties have committed a breach of their reciprocal obligations,
the liability of the first infractor shall be equitably tempered by the courts. WE rule that the liability of Island Savings
Bank for damages in not furnishing the entire loan is offset by the liability of Sulpicio M. Tolentino for damages, in the
form of penalties and surcharges, for not paying his overdue P17,000.00 debt. x x x.47
Another consideration that militates against the propriety of holding CAI liable for moral damages is the absence of a
showing that the latter acted fraudulently and in bad faith. Article 2220 of the Civil Code requires evidence of bad faith
and fraud and moral damages are generally not recoverable in culpa contractual except when bad faith had been
proven.48 The award of exemplary damages is likewise not warranted. Apart from the requirement that the defendant acted
in a wanton, oppressive and malevolent manner, the claimant must prove his entitlement to moral damages. 49
WHEREFORE, premises considered, the instant Petition is DENIED.