Republic of the Philippines
As to Barredo's responsibility, the
SUPREME COURT
Manila
EN BANC
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.
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.
1
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
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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
3
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
4
employee had been acquitted in the criminal case, and the Los articulos 20 y 21 del Codigo Penal, despues de distribuir a
employer, the Ferrocarril del Norte, had also been exonerated. su modo las responsabilidades civiles, entre los que sean por
The question asked was whether the Ferrocarril Cantabrico could diversos conceptos culpables del delito o falta, las hacen
still bring a civil action for damages against the Ferrocarril del extensivas a las empresas y los establecimientos al servicio
Norte. Maura's opinion was in the affirmative, stating in part de los cuales estan los delincuentes; pero con caracter
(Maura, Dictamenes, Vol. 6, pp. 511-513): subsidiario, o sea, segun el texto literal, en defecto de los que
sean responsables criminalmente. No coincide en ello el
Quedando las cosas asi, a proposito de la realidad pura y neta
Codigo Civil, cuyo articulo 1903, dice; La obligacion que
de los hechos, todavia menos parece sostenible que exista cosa
impone el articulo anterior es exigible, no solo por los actos y
juzgada acerca de la obligacion civil de indemnizar los
omisiones propios, sino por los de aquellas personas de
quebrantos y menoscabos inferidos por el choque de los trenes.
quienes se debe responder; personas en la enumeracion de
El titulo en que se funda la accion para demandar el
las cuales figuran los dependientes y empleados de los
resarcimiento, no puede confundirse con las responsabilidades
establecimientos o empresas, sea por actos del servicio, sea
civiles nacidas de delito, siquiera exista en este, sea el cual sea,
con ocasion de sus funciones. Por esto acontece, y se observa
una culpa rodeada de notas agravatorias que motivan sanciones
en la jurisprudencia, que las empresas, despues de intervenir
penales, mas o menos severas. La lesion causada por delito o
en las causas criminales con el caracter subsidiario de su
falta en los derechos civiles, requiere restituciones, reparaciones
responsabilidad civil por razon del delito, son demandadas y
o indemnizaciones, que cual la pena misma ataen al orden
condenadas directa y aisladamente, cuando se trata de la
publico; por tal motivo vienen encomendadas, de ordinario, al
obligacion, ante los tribunales civiles.
Ministerio Fiscal; y claro es que si por esta via se enmiendan los
quebrantos y menoscabos, el agraviado excusa procurar el ya Siendo como se ve, diverso el titulo de esta obligacion, y
conseguido desagravio; pero esta eventual coincidencia de los formando verdadero postulado de nuestro regimen judicial la
efectos, no borra la diversidad originaria de las acciones civiles separacion entre justicia punitiva y tribunales de lo civil, de
para pedir indemnizacion. suerte que tienen unos y otros normas de fondo en distintos
cuerpos legales, y diferentes modos de proceder, habiendose,
Estas, para el caso actual (prescindiendo de
por aadidura, abstenido de asistir al juicio criminal la
culpas contractuales, que no vendrian a cuento y que tiene otro
Compaia del Ferrocarril Cantabrico, que se reservo ejercitar
regimen), dimanan, segun el articulo 1902 del Codigo Civil, de
sus acciones, parece innegable que la de indemnizacion por
toda accion u omision, causante de daos o perjuicios, en que
los daos y perjuicios que le irrogo el choque, no estuvo sub
intervenga culpa o negligencia. Es trivial que acciones
judice ante el Tribunal del Jurado, ni fue sentenciada, sino que
semejantes son ejercitadas ante los Tribunales de lo civil
permanecio intacta, al pronunciarse el fallo de 21 de marzo.
cotidianamente, sin que la Justicia punitiva tenga que mezclarse
Aun cuando el veredicto no hubiese sido de inculpabilidad,
en los asuntos. Los articulos 18 al 21 y 121 al 128 del Codigo
mostrose mas arriba, que tal accion quedaba legitimamente
Penal, atentos al espiritu y a los fines sociales y politicos del
reservada para despues del proceso; pero al declararse que
mismo, desenvuelven y ordenan la materia de responsabilidades
no existio delito, ni responsabilidad dimanada de delito,
civiles nacidas de delito, en terminos separados del regimen por
materia unica sobre que tenian jurisdiccion aquellos
ley comun de la culpa que se denomina aquiliana, por alusion a
juzgadores, se redobla el motivo para la obligacion civil ex
precedentes legislativos del Corpus Juris. Seria intempestivo un
lege, y se patentiza mas y mas que la accion para pedir su
paralelo entre aquellas ordenaciones, y la de la obligacion de
cumplimiento permanece incolume, extraa a la cosa
indemnizar a titulo de culpa civil; pero viene al caso y es
juzgada.
necesaria una de las diferenciaciones que en el tal paralelo se
notarian. As things are, apropos of the reality pure and simple of the
facts, it seems less tenable that there should be res
5
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
the obligation, before the civil courts.
Seeing that the title of this obligation is different, and the
separation between punitive justice and the civil courts being
a true postulate of our judicial system, so that they have
different fundamental norms in different codes, as well as
different modes of procedure, and inasmuch as the 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
6
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
7
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
8
that this did not exclude the co-existence of fault or negligence, this action was properly under article 1902 of the Civil Code,
which is not qualified, on the part of the conductor, under article the court saying:
1902 of the Civil Code. In the present case, the taxi driver was
Considerando que la sentencia discutida reconoce, en virtud
found guilty of criminal negligence, so that if he had even sued
de los hechos que consigna con relacion a las pruebas del
for his civil responsibility arising from the crime, he would have
pleito: 1., que las expediciones facturadas por la compaia
been held primarily liable for civil damages, and Barredo would
ferroviaria a la consignacion del actor de las vasijas vacias
have been held subsidiarily liable for the same. But the plaintiffs
que en su demanda relacionan tenian como fin el que este las
are directly suing Barredo, on his primary responsibility because
devolviera a sus remitentes con vinos y alcoholes; 2., que
of his own presumed negligence which he did not overcome
llegadas a su destino tales mercanias no se quisieron entregar
under article 1903. Thus, there were two liabilities of Barredo:
a dicho consignatario por el jefe de la estacion sin motivo
first, the subsidiary one because of the civil liability of the taxi
justificado y con intencion dolosa, y 3., que la falta de
driver arising from the latter's criminal negligence; and, second,
entrega de estas expediciones al tiempo de reclamarlas el
Barredo's primary liability as an employer under article 1903.
demandante le originaron daos y perjuicios en cantidad de
The plaintiffs were free to choose which course to take, and they
bastante importancia como expendedor al por mayor que era
preferred the second remedy. In so doing, they were acting
de vinos y alcoholes por las ganancias que dejo de obtener al
within their rights. It might be observed in passing, that the
verse privado de servir los pedidos que se le habian hecho
plaintiff choose the more expeditious and effective method of
por los remitentes en los envases:
relief, because Fontanilla was either in prison, or had just been
released, and besides, he was probably without property which Considerando que sobre esta base hay necesidad de estimar
might be seized in enforcing any judgment against him for los cuatro motivos que integran este recurso, porque la
damages. demanda inicial del pleito a que se contrae no contiene
accion que nazca del incumplimiento del contrato de
Third. That inasmuch as in the above sentence of October 21,
transporte, toda vez que no se funda en el retraso de la
1910, the employer was held liable civilly, notwithstanding the
llegada de las mercancias ni de ningun otro vinculo
acquittal of the employee (the conductor) in a previous criminal
contractual entre las partes contendientes, careciendo, por
case, with greater reason should Barredo, the employer in the
tanto, de aplicacion el articulo 371 del Codigo de Comercio,
case at bar, be held liable for damages in a civil suit filed against
en que principalmente descansa el fallo recurrido, sino que se
him because his taxi driver had been convicted. The degree of
limita a pedir la reparaction de los daos y perjuicios
negligence of the conductor in the Spanish case cited was less
producidos en el patrimonio del actor por la injustificada y
than that of the taxi driver, Fontanilla, because the former was
dolosa negativa del porteador a la entrega de las mercancias
acquitted in the previous criminal case while the latter was
a su nombre consignadas, segun lo reconoce la sentencia, y
found guilty of criminal negligence and was sentenced to an
cuya responsabilidad esta claramente sancionada en el
indeterminate sentence of one year and one day to two years
articulo 1902 del Codigo Civil, que obliga por el siguiente a la
of prision correccional.
Compaia demandada como ligada con el causante de
(See also Sentence of February 19, 1902, which is similar to the aquellos por relaciones de caracter economico y de jurarquia
one above quoted.) administrativa.
In the Sentence of the Supreme Court of Spain, dated February Considering that the sentence, in question recognizes, in
14, 1919, an action was brought against a railroad company for virtue of the facts which it declares, in relation to the
damages because the station agent, employed by the company, evidence in the case: (1) that the invoice issued by the
had unjustly and fraudulently, refused to deliver certain articles railroad company in favor of the plaintiff contemplated that
consigned to the plaintiff. The Supreme Court of Spain held that the empty receptacles referred to in the complaint should be

9
returned to the consignors with wines and liquors; (2) that when
the said merchandise reached their destination, their delivery to
the consignee was refused by the station agent without
justification and with fraudulent intent, and (3) that the lack of
delivery of these goods when they were demanded by the
plaintiff caused him losses and damages of considerable
importance, as he was a wholesale vendor of wines and liquors
and he failed to realize the profits when he was unable to fill the
orders sent to him by the consignors of the receptacles:
Considering that upon this basis there is need of upholding the
four assignments of error, as the original complaint did not
contain any cause of action arising from non-fulfillment of a
contract of transportation, because the action was not based on
the delay of the goods nor on any contractual relation between
the parties litigant and, therefore, article 371 of the Code of
Commerce, on which the decision appealed from is based, is not
applicable; but it limits to asking for reparation for losses and
damages produced on the patrimony of the plaintiff on account
of the unjustified and fraudulent refusal of the carrier to deliver
the goods consigned to the plaintiff as stated by the sentence,
and the carrier's responsibility is clearly laid down in article
1902 of the Civil Code which binds, in virtue of the next article,
the defendant company, because the latter is connected with
the person who caused the damage by relations of economic
character and by administrative hierarchy. (Emphasis supplied.)
The above case is pertinent because it shows that the same act
may come under both the Penal Code and the Civil Code. In that
case, the action of the agent was unjustified and fraudulent and
therefore could have been the subject of a criminal action. And
yet, it was held to be also a proper subject of a civil action under
article 1902 of the Civil Code. It is also to be noted that it was
the employer and not the employee who was being sued.
Let us now examine the cases previously decided by this Court.
In the leading case of Rakes vs. Atlantic Gulf and Pacific Co. (7
Phil., 359, 362-365 [year 1907]), the trial court awarded
damages to the plaintiff, a laborer of the defendant, because the
latter had negligently failed to repair a tramway in consequence
of which the rails slid off while iron was being transported, and
caught the plaintiff whose leg was broken. This Court held:
It is contended by the defendant, as its first defense to the
action that the necessary conclusion from these collated laws
is that the remedy for injuries through negligence lies only in
a criminal action in which the official criminally responsible
must be made primarily liable and his employer held only
subsidiarily to him. According to this theory the plaintiff
should have procured the arrest of the representative of the
company accountable for not repairing the track, and on his
prosecution a suitable fine should have been imposed,
payable primarily by him and secondarily by his employer.
This reasoning misconceived the plan of the Spanish codes
upon this subject. Article 1093 of the Civil Code makes
obligations arising from faults or negligence not punished by
the law, subject to the provisions of Chapter II of Title XVI.
Section 1902 of that chapter reads:
"A person who by an act or omission causes damage to
another when there is fault or negligence shall be obliged to
repair the damage so done.
"SEC. 1903. The obligation imposed by the preceeding article
is demandable, not only for personal acts and omissions, but
also for those of the persons for whom they should be
responsible.
"The father, and on his death or incapacity, the mother, is
liable for the damages caused by the minors who live with
them.
xxx xxx xxx
"Owners or directors of an establishment or enterprise are
equally liable for the damages caused by their employees in
the service of the branches in which the latter may be
employed or in the performance of their duties.
xxx xxx xxx
"The liability referred to in this article shall cease when the
persons mentioned therein prove that they employed all the
diligence of a good father of a family to avoid the damage."
As an answer to the argument urged in this particular action it
may be sufficient to point out that nowhere in our general
statutes is the employer penalized for failure to provide or
10
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:
11
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
aquilianaunder 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.
12
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:
13
The basis of civil law liability is not respondent superior but the
relationship of pater familias. This theory bases the liability of
the master ultimately on his own negligence and not on that of
his servant. (Bahia vs.Litonjua and Leynes [1915], 30 Phil., 624;
Cangco vs. Manila Railroad Co. [1918], 38 Phil., 768.)
In Walter A. Smith & Co. vs. Cadwallader Gibson Lumber Co., 55
Phil., 517 (year 1930) the plaintiff brought an action for
damages for the demolition of its wharf, which had been struck
by the steamer Helen C belonging to the defendant. This Court
held (p. 526):
The evidence shows that Captain Lasa at the time the plaintiff's
wharf collapsed was a duly licensed captain, authorized to
navigate and direct a vessel of any tonnage, and that the
appellee contracted his services because of his reputation as a
captain, according to F. C. Cadwallader. This being so, we are of
the opinion that the presumption of liability against the
defendant has been overcome by the exercise of the care and
diligence of a good father of a family in selecting Captain Lasa,
in accordance with the doctrines laid down by this court in the
cases cited above, and the defendant is therefore absolved from
all liability.
It is, therefore, seen that the defendant's theory about his
secondary liability is negatived by the six cases above set forth.
He is, on the authority of these cases, primarily and directly
responsible in damages under article 1903, in relation to article
1902, of the Civil Code.
Let us now take up the Philippine decisions relied upon by the
defendant. We study first, City of Manila vs. Manila Electric Co.,
52 Phil., 586 (year 1928). A collision between a truck of the City
of Manila and a street car of the Manila Electric Co. took place on
June 8, 1925. The truck was damaged in the amount of
P1,788.27. Sixto Eustaquio, the motorman, was prosecuted for
the crime of damage to property and slight injuries through
reckless imprudence. He was found guilty and sentenced to pay
a fine of P900, to indemnify the City of Manila for P1,788.27,
with subsidiary imprisonment in case of insolvency. Unable to
collect the indemnity from Eustaquio, the City of Manila filed an
action against the Manila Electric Company to obtain payment,
claiming that the defendant was subsidiarily liable. The main
defense was that the defendant had exercised the diligence of a
good father of a family to prevent the damage. The lower
court rendered judgment in favor of the plaintiff. This Court
held, in part, that this case was governed by the Penal Code,
saying:
With this preliminary point out of the way, there is no
escaping the conclusion that the provisions of the Penal Code
govern. The Penal Code in easily understandable language
authorizes the determination of subsidiary liability. The Civil
Code negatives its application by providing that civil
obligations arising from crimes or misdemeanors shall be
governed by the provisions of the Penal Code. The conviction
of the motorman was a misdemeanor falling under article 604
of the Penal Code. The act of the motorman was not a
wrongful or negligent act or omission not punishable by law.
Accordingly, the civil obligation connected up with the Penal
Code and not with article 1903 of the Civil Code. In other
words, the Penal Code affirms its jurisdiction while the Civil
Code negatives its jurisdiction. This is a case of criminal
negligence out of which civil liability arises and not a case of
civil negligence.
xxx xxx xxx
Our deduction, therefore, is that the case relates to the Penal
Code and not to the Civil Code. Indeed, as pointed out by the
trial judge, any different ruling would permit the master to
escape scot-free by simply alleging and proving that the
master had exercised all diligence in the selection and
training of its servants to prevent the damage. That would be
a good defense to a strictly civil action, but might or might
not be to a civil action either as a part of or predicated on
conviction for a crime or misdemeanor. (By way of
parenthesis, it may be said further that the statements here
made are offered to meet the argument advanced during our
deliberations to the effect that article 0902 of the Civil Code
should be disregarded and codal articles 1093 and 1903
applied.)
It is not clear how the above case could support the
defendant's proposition, because the Court of Appeals based
its decision in the present case on the defendant's primary
responsibility under article 1903 of the Civil Code and not on
his subsidiary liability arising from Fontanilla's criminal
14
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
15
lifeless a principle of such ancient origin and such full-grown
development as culpa aquiliana or cuasi-delito, which is
conserved and made enduring in articles 1902 to 1910 of the
Spanish Civil Code.
Secondly, to find the accused guilty in a criminal case, proof of
guilt beyond reasonable doubt is required, while in a civil case,
preponderance of evidence is sufficient to make the defendant
pay in damages. There are numerous cases of criminal
negligence which can not be shown beyond reasonable doubt,
but can be proved by a preponderance of evidence. In such
cases, the defendant can and should be made responsible in a
civil action under articles 1902 to 1910 of the Civil Code.
Otherwise, there would be many instances of unvindicated civil
wrongs. Ubi jus ibi remedium.
Thirdly, to hold that there is only one way to make defendant's
liability effective, and that is, to sue the driver and exhaust his
(the latter's) property first, would be tantamount to compelling
the plaintiff to follow a devious and cumbersome method of
obtaining relief. True, there is such a remedy under our laws, but
there is also a more expeditious way, which is based on the
primary and direct responsibility of the defendant under article
1903 of the Civil Code. Our view of the law is more likely to
facilitate remedy for civil wrongs, because the procedure
indicated by the defendant is wasteful and productive of delay,
it being a matter of common knowledge that professional drivers
of taxis and similar public conveyance usually do not have
sufficient means with which to pay damages. Why, then, should
the plaintiff be required in all cases to go through this
roundabout, unnecessary, and probably useless procedure? In
construing the laws, courts have endeavored to shorten and
facilitate the pathways of right and justice.
At this juncture, it should be said that the primary and direct
responsibility of employers and their presumed negligence are
principles calculated to protect society. Workmen and employees
should be carefully chosen and supervised in order to avoid
injury to the public. It is the masters or employers who
principally reap the profits resulting from the services of these
servants and employees. It is but right that they should
guarantee the latter's careful conduct for the personnel and
patrimonial safety of others. As Theilhard has said, "they should
reproach themselves, at least, some for their weakness,
others for their poor selection and all for their negligence."
And according to Manresa, "It is much more equitable and just
that such responsibility should fall upon the principal or
director who could have chosen a careful and prudent
employee, and not upon the injured person who could not
exercise such selection and who used such employee because
of his confidence in the principal or director." (Vol. 12, p. 622,
2nd Ed.) Many jurists also base this primary responsibility of
the employer on the principle of representation of the
principal by the agent. Thus, Oyuelos says in the work already
cited (Vol. 7, p. 747) that before third persons the employer
and employee "vienen a ser como una sola personalidad, por
refundicion de la del dependiente en la de quien le emplea y
utiliza." ("become as one personality by the merging of the
person of the employee in that of him who employs and
utilizes him.") All these observations acquire a peculiar force
and significance when it comes to motor accidents, and there
is need of stressing and accentuating the responsibility of
owners of motor vehicles.
Fourthly, because of the broad sweep of the provisions of both
the Penal Code and the Civil Code on this subject, which has
given rise to the overlapping or concurrence of spheres
already discussed, and for lack of understanding of the
character and efficacy of the action for culpa aquiliana, there
has grown up a common practice to seek damages only by
virtue of the civil responsibility arising from a crime,
forgetting that there is another remedy, which is by invoking
articles 1902-1910 of the Civil Code. Although this habitual
method is allowed by our laws, it has nevertheless rendered
practically useless and nugatory the more expeditious and
effective remedy based on culpa aquiliana or culpa extra-
contractual. In the present case, we are asked to help
perpetuate this usual course. But we believe it is high time we
pointed out to the harm done by such practice and to restore
the principle of responsibility for fault or negligence under
articles 1902 et seq. of the Civil Code to its full rigor. It is high
time we caused the stream of quasi-delict or culpa
aquiliana to flow on its own natural channel, so that its waters
may no longer be diverted into that of a crime under the
Penal Code. This will, it is believed, make for the better
16
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.
Yulo, C.J., Moran, Ozaeta and Paras, JJ., concur.
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 108017 April 3, 1995
MARIA BENITA A. DULAY, in her own behalf and in behalf
of the minor children KRIZTEEN ELIZABETH, BEVERLY
MARIE and NAPOLEON II, all surnamed
DULAY, petitioners,
vs.
THE COURT OF APPEALS, Former Eighth Division, HON.
TEODORO P. REGINO, in his capacity as Presiding Judge
of the Regional Trial Court National Capital Region,
Quezon City, Br. 84, SAFEGUARD INVESTIGATION AND
SECURITY CO., INC., and SUPERGUARD SECURITY
CORPORATION, respondents.
BIDIN, J.:
This petition for certiorari prays for the reversal of the
decision of the Court of Appeals dated October 29, 1991 in
CA-G.R. CV No. 24646 which affirmed the order of the
Regional Trial Court dismissing Civil Case No. Q-89-1751, and
its resolution dated November 17, 1991 denying herein,
petitioner's motion for reconsideration.
The antecedent facts of the case are as follows:
On December 7, 1988, an altercation between Benigno
Torzuela and Atty. Napoleon Dulay occurred at the "Big Bang
Sa Alabang," Alabang Village, Muntinlupa as a result of which
Benigno Torzuela, the security guard on duty at the said
carnival, shot and killed Atty. Napoleon Dulay.
Herein petitioner Maria Benita A. Dulay, widow of the
deceased Napoleon Dulay, in her own behalf and in behalf of
her minor children, filed on February 8, 1989 an action for
damages against Benigno Torzuela and herein private
respondents Safeguard Investigation and Security Co., Inc.,
("SAFEGUARD") and/or Superguard Security Corp.
("SUPERGUARD"), alleged employers of defendant Torzuela.
The complaint, docketed as Civil Case No. Q-89-1751 among
others alleges the following:
1. . . .
Defendants SAFEGUARD INVESTIGATION AND SECURITY CO.,
INC., (Defendant Safeguard) and SUPERGUARD SECURITY
CORPORATION (Defendant Superguard) are corporations duly
organized and existing in accordance with Philippine laws,
with offices at 10th Floor, Manufacturers Building, Inc., Plaza
17
Santa Cruz, Manila. They are impleaded as alternative
defendants for, while the former appears to be the employer of
defendant BENIGNO TORZUELA (defendant TORZUELA), the
latter impliedly acknowledged responsibility for the acts of
defendant TORZUELA by extending its sympathies to plaintiffs.
Defendant BENIGNO TORZUELA is of legal age, an employee of
defendant SAFEGUARD and/or defendant SUPERGUARD and, at
the time of the incident complained of, was under their control
and supervision. . . .
3. On December 7, 1988 at around 8:00 a.m., defendant
TORZUELA, while he was on duty as security guard at the "Big
Bang sa Alabang," Alabang Village, Muntinlupa, Metro Manila
shot and killed NAPOLEON V. DULAY with a .38 caliber revolver
belonging to defendant SAFEGUARD, and/or SUPERGUARD (per
Police Report dated January 7, 1989, copy attached as Annex A);
4. The incident resulting in the death of NAPOLEON V. DULAY
was due to the concurring negligence of the defendants.
Defendant TORZUELA'S wanton and reckless discharge of the
firearm issued to him by defendant SAFEGUARD and/or
SUPERGUARD was the immediate and proximate cause of the
injury, while the negligence of defendant SAFEGUARD and/or
SUPERGUARD consists in its having failed to exercise the
diligence of a good father of a family in the supervision and
control of its employee to avoid the injury.
xxx xxx xxx
(Rollo, pp. 117-118)
Petitioners prayed for actual, compensatory, moral and
exemplary damages, and attorney's fees. The said Civil Case No.
Q-89-1751 was raffled to Branch 84 of the Regional Trial Court of
Quezon City, presided by respondent Judge Teodoro Regino.
On March 2, 1989, private respondent SUPERGUARD filed a
Motion to Dismiss on the ground that the complaint does not
state a valid cause of action. SUPERGUARD claimed that
Torzuela's act of shooting Dulay was beyond the scope of his
duties, and that since the alleged act of shooting was committed
with deliberate intent (dolo), the civil liability therefor is
governed by Article 100 of the Revised Penal Code, which states:
Art. 100. Civil liability of a person guilty of a felony. Every
person criminally liable for a felony is also civilly liable.
Respondent SUPERGUARD further alleged that a complaint for
damages based on negligence under Article 2176 of the New
Civil Code, such as the one filed by petitioners, cannot lie,
since the civil liability under Article 2176 applies only to
quasi-offenses under Article 365 of the Revised Penal Code. In
addition, the private respondent argued that petitioners' filing
of the complaint is premature considering that the conviction
of Torzuela in a criminal case is a condition sine qua non for
the employer's subsidiary liability (Rollo, p. 55-59).
Respondent SAFEGUARD also filed a motion praying that it be
excluded as defendant on the ground that defendant Torzuela
is not one of its employees (Rollo, p. 96).
Petitioners opposed both motions, stating that their cause of
action against the private respondents is based on their
liability under Article 2180 of the New Civil Code, which
provides:
Art. 2180. The obligation imposed by Article 2176 is
demandable not only for one's own acts or omissions, but also
for those of persons for whom one is responsible.
xxx xxx xxx
Employers shall be liable for the damages caused by their
employees and household helpers acting within the scope of
their assigned tasks, even though the former are not engaged
in any business or an industry.
xxx xxx xxx
(Emphasis supplied)
Petitioners contended that a suit against alternative
defendants is allowed under Rule 3, Section 13 of the Rules of
Court. Therefore, the inclusion of private respondents as
alternative defendants in the complaint is justified by the
following: the Initial Investigation Report prepared by Pat.
Mario Tubon showing that Torzuela is an employee of
SAFEGUARD; and through overt acts, SUPERGUARD extended
its sympathies to petitioners (Rollo, pp. 64 and 98).
18
Meanwhile, an Information dated March 21, 1989 charging
Benigno Torzuela with homicide was filed before the Regional
Trial Court of Makati and was docketed as Criminal Case No. 89-
1896.
On April 13, 1989, respondent Judge Regino issued an order
granting SUPERGUARD'S motion to dismiss and SAFEGUARD'S
motion for exclusion as defendant. The respondent judge held
that the complaint did not state facts necessary or sufficient to
constitute a quasi-delict since it does not mention any
negligence on the part of Torzuela in shooting Napoleon Dulay or
that the same was done in the performance of his duties.
Respondent judge ruled that mere allegations of the concurring
negligence of the defendants (private respondents herein)
without stating the facts showing such negligence are mere
conclusions of law (Rollo, p. 106). Respondent judge also
declared that the complaint was one for damages founded on
crimes punishable under Articles 100 and 103 of the Revised
Penal Code as distinguished from those arising from, quasi-
delict. The dispositive portion of the order dated April 13, 1989
states:
WHEREFORE, this Court holds that in view of the material and
ultimate facts alleged in the verified complaint and in
accordance with the applicable law on the matter as well as
precedents laid down by the Supreme Court, the complaint
against the alternative defendants Superguard Security
Corporation and Safeguard Investigation and Security Co., Inc.,
must be and (sic) it is hereby dismissed. (Rollo, p. 110)
The above order was affirmed by the respondent court and
petitioners' motion for reconsideration thereof was denied.
Petitioners take exception to the assailed decision and insist that
quasi-delicts are not limited to acts of negligence but also cover
acts that are intentional and voluntary, citing Andamo v. IAC
(191 SCRA 195 [1990]). Thus, petitioners insist that Torzuela' s
act of shooting Napoleon Dulay constitutes a quasi-delict
actionable under Article 2176 of the New Civil Code.
Petitioners further contend that under Article 2180 of the New
Civil Code, private respondents are primarily liable for their
negligence either in the selection or supervision of their
employees. This liability is independent of the employee's own
liability for fault or negligence and is distinct from the
subsidiary civil liability under Article 103 of the Revised Penal
Code. The civil action against the employer may therefore
proceed independently of the criminal action pursuant to Rule
111 Section 3 of the Rules of Court. Petitioners submit that
the question of whether Torzuela is an employee of
respondent SUPERGUARD or SAFEGUARD would be better
resolved after trial.
Moreover, petitioners argue that Torzuela's act of shooting
Dulay is also actionable under Article 33 of the New Civil
Code, to wit:
Art. 33. In cases of defamation, fraud, and physical injuries, a
civil action for damages, entirely separate and distinct from
the criminal action, may be brought by the injured party. Such
civil action shall proceed independently of the criminal
prosecution, and shall require only a preponderance of
evidence. (Emphasis supplied)
In the same vein, petitioners cite Section 3, Rule 111 of the
Rules of Court which provides:
Rule 111. . . . .
Sec. 3. When civil action may proceed independently In the
cases provided for in Articles 32, 33, 34 and 2176 of the Civil
Code of the Philippines, the independent civil action which
has been reserved may be brought by the offended party,
shall proceed independently of the criminal action, and shall
require only a preponderance of evidence. (Emphasis
supplied)
The term "physical injuries" under Article 33 has been held to
include consummated, frustrated and attempted homicide.
Thus, petitioners maintain that Torzuela's prior conviction is
unnecessary since the civil action can proceed independently
of the criminal action. On the other hand, it is the private
respondents' argument that since the act was not committed
with negligence, the petitioners have no cause of action
under Articles 2116 and 2177 of the New Civil Code. The civil
action contemplated in Article 2177 is not applicable to acts
committed with deliberate intent, but only applies to quasi-
offenses under Article 365 of the Revised Penal Code.
Torzuela's act of shooting Atty. Dulay to death, aside from
19
being purely personal, was done with deliberate intent and could
not have been part of his duties as security guard. And since
Article 2180 of the New Civil Code covers only: acts done within
the scope of the employee's assigned tasks, the private
respondents cannot be held liable for damages.
We find for petitioners.
It is undisputed that Benigno Torzuela is being prosecuted for
homicide for the fatal shooting of Napoleon Dulay. Rule 111 of
the Rules on Criminal Procedure provides:
Sec. 1. Institution of criminal and civil actions. When a criminal
action is instituted, the civil action for the recovery of civil
liability is impliedly instituted with the criminal action, unless
the offended party waives the civil action , reserves his right to
institute it separately or institutes the civil action prior to the
criminal action.
Such civil action includes recovery of indemnity under the
Revised Penal Code, and damages under Articles 32, 33, 34, and
2176 of the Civil Code of the Philippines arising from the same
act or omission of the accused. (Emphasis supplied)
It is well-settled that the filing of an independent civil action
before the prosecution in the criminal action presents evidence
is even far better than a compliance with the requirement of
express reservation (Yakult Philippines v. Court of Appeals, 190
SCRA 357 [1990]). This is precisely what the petitioners opted to
do in this case. However, the private respondents opposed the
civil action on the ground that the same is founded on a delict
and not on a quasi-delict as the shooting was not attended by
negligence. What is in dispute therefore is the nature of the
petitioner's cause of action.
The nature of a cause of action is determined by the facts
alleged in the complaint as constituting the cause of action
(Republic v. Estenzo, 158 SCRA 282 [1988]). The purpose of an
action or suit and the law to govern it is to be determined not by
the claim of the party filing the action, made in his argument or
brief, but rather by the complaint itself, its allegations and
prayer for relief. (De Tavera v. Philippine Tuberculosis Society,
112 SCRA 243 [1982]). An examination of the complaint in the
present case would show that the plaintiffs, petitioners herein,
are invoking their right to recover damages against the private
respondents for their vicarious responsibility for the injury
caused by Benigno Torzuela's act of shooting and killing
Napoleon Dulay, as stated in paragraphs 1 and 2 of the
complaint.
Article 2176 of the New Civil Code provides:
Art. 2176. Whoever by act or omission causes damage to
another, there being fault or negligence, is obliged to pay for
the damage done. Such fault or negligence, if there is no pre-
existing contractual relation between the parties is called a
quasi-delict and is governed by the provisions of this Chapter.
Contrary to the theory of private respondents, there is no
justification for limiting the scope of Article 2176 of the Civil
Code to acts or omissions resulting from negligence. Well-
entrenched is the doctrine that article 2176 covers not only
acts committed with negligence, but also acts which are
voluntary and intentional. As far back as the definitive case of
Elcano v. Hill (77 SCRA 98 [1977]), this Court already held
that:
. . . Article 2176, where it refers to "fault or negligence,"
covers not only acts "not punishable by law" but also acts
criminal in character; whether intentional and voluntary or
negligent. Consequently, a separate civil action against the
offender in a criminal act, whether or not he is criminally
prosecuted and found guilty or acquitted, provided that the
offended party is not allowed, if he is actually charged also
criminally, to recover damages on both scores, and would be
entitled in such eventuality only to the bigger award of the
two, assuming the awards made in the two cases vary. In
other words, the extinction of civil liability referred to in Par.
(e) of Section 3, Rule 111, refers exclusively to civil liability
founded on Article 100 of the Revised Penal Code, whereas
the civil liability for the same act considered as quasi-delict
only and not as a crime is not extinguished even by a
declaration in the criminal case that the criminal act charged
has not happened or has not been committed by the accused.
Briefly stated, We here hold, in reiteration of Garcia,
that culpa aquiliana includes voluntary and negligent acts
which may be punishable by law. (Emphasis supplied)
20
The same doctrine was echoed in the case of Andamo v. security guard. It having been established that the instant
Intermediate Appellate Court (191 SCRA 195 [1990]), wherein action is not ex-delicto, petitioners may proceed directly
the Court held: against Torzuela and the private respondents. Under Article
2180 of the New Civil Code as aforequoted, when an injury is
Article 2176, whenever it refers to "fault or negligence," covers
caused by the negligence of the employee, there instantly
not only acts criminal in character, whether intentional and
arises a presumption of law that there was negligence on the
voluntary or negligent. Consequently, a civil action lies against
part of the master or employer either in the selection of the
the offender in a criminal act, whether or not he is prosecuted or
servant or employee, or in supervision over him after
found guilty or acquitted, provided that the offended party is not
selection or both (Layugan v. Intermediate Appellate Court,
allowed, (if the tortfeasor is actually also charged criminally), to
167 SCRA 363 [1988]). The liability of the employer under
recover damages on both scores, and would be entitled in such
Article 2180 is direct and immediate; it is not conditioned
eventuality only to the bigger award of the two, assuming the
upon prior recourse against the negligent employee and a
awards made in the two cases vary. [citing Virata v. Ochoa, 81
prior showing of the insolvency of such employee (Kapalaran
SCRA 472] (Emphasis supplied)
Bus Lines v. Coronado, 176 SCRA 792 [1989]). Therefore, it is
Private respondents submit that the word "intentional" in incumbent upon the private respondents to prove that they
the Andamo case is inaccurate obiter, and should be read as exercised the diligence of a good father of a family in the
"voluntary" since intent cannot be coupled with negligence as selection and supervision of their employee.
defined by Article 365 of the Revised Penal Code. In the absence
Since Article 2176 covers not only acts of negligence but also
of more substantial reasons, this Court will not disturb the above
acts which are intentional and voluntary, it was therefore
doctrine on the coverage of Article 2176.
erroneous on the part of the trial court to dismiss petitioner's
Private respondents further aver that Article 33 of the New Civil complaint simply because it failed to make allegations of
Code applies only to injuries intentionally committed pursuant to attendant negligence attributable to private respondents.
the ruling in Marcia v. CA (120 SCRA 193 [1983]), and that the
With respect to the issue of whether the complaint at hand
actions for damages allowed thereunder are ex-delicto.
states a sufficient cause of action, the general rule is that the
However, the term "physical injuries" in Article 33 has already
allegations in a complaint are sufficient to constitute a cause
been construed to include bodily injuries causing death (Capuno
of action against the defendants if, admitting the facts
v. Pepsi-Cola Bottling Co. of the Philippines, 121 Phil. 638 [1965);
alleged, the court can render a valid judgment upon the same
Carandang v. Santiago, 97 Phil. 94 [1955]). It is not the crime of
in accordance with the prayer therein. A cause of action exist
physical injuries defined in the Revised Penal Code. It includes
if the following elements are present, namely: (1) a right in
not only physical injuries but also consummated, frustrated, and
favor of the plaintiff by whatever means and under whatever
attempted homicide (Madeja v. Caro, 126 SCRA 293 [1983]).
law it arises or is created; (2) an obligation on the part of the
Although in the Marcia case (supra), it was held that no
named defendant to respect or not to violate such right; and
independent civil action may be filed under Article 33 where the
(3) an act or omission on the part of such defendant violative
crime is the result of criminal negligence, it must be noted
of the right of the plaintiff or constituting a breach of the
however, that Torzuela, the accused in the case at bar, is
obligation of the defendant to the plaintiff for which the latter
charged with homicide, not with reckless imprudence, whereas
may maintain an action for recovery of damages (Del Bros
the defendant in Marcia was charged with reckless imprudence.
Hotel Corporation v. CA, 210 SCRA 33 [1992]); Development
Therefore, in this case, a civil action based on Article 33 lies.
Bank of the Philippines v. Pundogar, 218 SCRA 118 [1993])
Private respondents also contend that their liability is subsidiary
This Court finds, under the foregoing premises, that the
under the Revised Penal Code; and that they are not liable for
complaint sufficiently alleged an actionable breach on the
Torzuela's act which is beyond the scope of his duties as a
21
part of the defendant Torzuela and respondents SUPERGUARD Narvasa, C.J., Regalado, Puno and Mendoza, JJ., concur.
and/or SAFEGUARD. It is enough that the complaint alleged that
Benigno Torzuela shot Napoleon Dulay resulting in the latter's
death; that the shooting occurred while Torzuela was on duty;
and that either SUPERGUARD and/or SAFEGUARD was Torzuela's
employer and responsible for his acts. This does not operate
however, to establish that the defendants below are liable.
Whether or not the shooting was actually reckless and wanton or
attended by negligence and whether it was actually done within
the scope of Torzuela's duties; whether the private respondents
SUPERGUARD and/or SAFEGUARD failed to exercise the diligence
of a good father of a family; and whether the defendants are
actually liable, are questions which can be better resolved after
trial on the merits where each party can present evidence to
prove their respective allegations and defenses. In determining
whether the allegations of a complaint are sufficient to support a
cause of action, it must be borne in mind that the complaint
does not have to establish or allege the facts proving the
existence of a cause of action at the outset; this will have to be
done at the trial on the merits of the case (Del Bros Hotel
Corporation v. CA, supra). If the allegations in a complaint can
furnish a sufficient basis by which the complaint can be
maintained, the same should not be dismissed regardless of the
defenses that may be assessed by the defendants (Rava Dev't.
Corp. v. CA, 211 SCRA 152 [1992] citing Consolidated Bank &
Trust Corporation v. Court of Appeals, 197 SCRA 663 [1991]). To
sustain a motion to dismiss for lack of cause of action, the
complaint must show that the claim for relief does not exist
rather than that a claim has been defectively stated, is
ambiguous, indefinite or uncertain (Azur v. Provincial Board, 27
SCRA 50 [1969]). Since the petitioners clearly sustained an
injury to their rights under the law, it would be more just to allow
them to present evidence of such injury.
WHEREFORE, premises considered, the petition for review is
hereby GRANTED. The decision of the Court of Appeals as well as
the Order of the Regional Trial Court dated April 13, 1989 are
hereby REVERSED and SET ASIDE. Civil Case No. Q-89-1751 is
remanded to the Regional Trial Court for trial on the merits. This
decision is immediately executory.
SO ORDERED.

22
 Bangkok, the Manager of the defendant airline forced plaintiff
to vacate the "first class" seat that he was occupying
Republic of the Philippines because, in the words of the witness Ernesto G. Cuento, there
SUPREME COURT was a "white man", who, the Manager alleged, had a "better
Manila right" to the seat. When asked to vacate his "first class" seat,
the plaintiff, as was to be expected, refused, and told
EN BANC
defendant's Manager that his seat would be taken over his
G.R. No. L-21438 September 28, 1966 dead body; a commotion ensued, and, according to said
AIR FRANCE, petitioner, Ernesto G. Cuento, "many of the Filipino passengers got
vs. nervous in the tourist class; when they found out that Mr.
RAFAEL CARRASCOSO and the HONORABLE COURT OF Carrascoso was having a hot discussion with the white man
APPEALS, respondents. [manager], they came all across to Mr. Carrascoso and
pacified Mr. Carrascoso to give his seat to the white man"
Lichauco, Picazo and Agcaoili for petitioner. (Transcript, p. 12, Hearing of May 26, 1959); and plaintiff
Bengzon Villegas and Zarraga for respondent R. Carrascoso. reluctantly gave his "first class" seat in the plane.3
1. The trust of the relief petitioner now seeks is that we
SANCHEZ, J.: review "all the findings" 4 of respondent Court of Appeals.
Petitioner charges that respondent court failed to make
The Court of First Instance of Manila 1 sentenced petitioner to complete findings of fact on all the issues properly laid before
pay respondent Rafael Carrascoso P25,000.00 by way of moral it. We are asked to consider facts favorable to petitioner, and
damages; P10,000.00 as exemplary damages; P393.20 then, to overturn the appellate court's decision.
representing the difference in fare between first class and tourist
class for the portion of the trip Bangkok-Rome, these various Coming into focus is the constitutional mandate that "No
amounts with interest at the legal rate, from the date of the decision shall be rendered by any court of record without
filing of the complaint until paid; plus P3,000.00 for attorneys' expressing therein clearly and distinctly the facts and the law
fees; and the costs of suit. on which it is based". 5 This is echoed in the statutory
demand that a judgment determining the merits of the case
On appeal,2 the Court of Appeals slightly reduced the amount of shall state "clearly and distinctly the facts and the law on
refund on Carrascoso's plane ticket from P393.20 to P383.10, which it is based"; 6 and that "Every decision of the Court of
and voted to affirm the appealed decision "in all other respects", Appeals shall contain complete findings of fact on all issues
with costs against petitioner. properly raised before it". 7
The case is now before us for review on certiorari. A decision with absolutely nothing to support it is a nullity. It is
The facts declared by the Court of Appeals as " fully supported open to direct attack. 8 The law, however, solely insists that a
by the evidence of record", are: decision state the "essential ultimate facts" upon which the
court's conclusion is drawn. 9 A court of justice is not
Plaintiff, a civil engineer, was a member of a group of 48 Filipino hidebound to write in its decision every bit and piece of
pilgrims that left Manila for Lourdes on March 30, 1958. evidence 10 presented by one party and the other upon the
On March 28, 1958, the defendant, Air France, through its issues raised. Neither is it to be burdened with the obligation
authorized agent, Philippine Air Lines, Inc., issued to plaintiff a "to specify in the sentence the facts" which a party
"first class" round trip airplane ticket from Manila to Rome. From "considered as proved". 11 This is but a part of the mental
Manila to Bangkok, plaintiff travelled in "first class", but at process from which the Court draws the essential ultimate

23
facts. A decision is not to be so clogged with details such that
prolixity, if not confusion, may result. So long as the decision of
the Court of Appeals contains the necessary facts to warrant its
conclusions, it is no error for said court to withhold therefrom
"any specific finding of facts with respect to the evidence for the
defense". Because as this Court well observed, "There is no law
that so requires". 12 Indeed, "the mere failure to specify (in the
decision) the contentions of the appellant and the reasons for
refusing to believe them is not sufficient to hold the same
contrary to the requirements of the provisions of law and the
Constitution". It is in this setting that in Manigque, it was held
that the mere fact that the findings "were based entirely on the
evidence for the prosecution without taking into consideration or
even mentioning the appellant's side in the controversy as
shown by his own testimony", would not vitiate the
judgment. 13 If the court did not recite in the decision the
testimony of each witness for, or each item of evidence
presented by, the defeated party, it does not mean that the
court has overlooked such testimony or such item of
evidence. 14 At any rate, the legal presumptions are that official
duty has been regularly performed, and that all the matters
within an issue in a case were laid before the court and passed
upon by it. 15
Findings of fact, which the Court of Appeals is required to make,
maybe defined as "the written statement of the ultimate facts as
found by the court ... and essential to support the decision and
judgment rendered thereon". 16They consist of the
court's "conclusions" with respect to the determinative facts in
issue". 17 A question of law, upon the other hand, has been
declared as "one which does not call for an examination of the
probative value of the evidence presented by the parties." 18
2. By statute, "only questions of law may be raised" in an appeal
by certiorari from a judgment of the Court of Appeals. 19 That
judgment is conclusive as to the facts. It is not appropriately the
business of this Court to alter the facts or to review the
questions of fact. 20
With these guideposts, we now face the problem of whether the
findings of fact of the Court of Appeals support its judgment.
3. Was Carrascoso entitled to the first class seat he claims?
It is conceded in all quarters that on March 28, 1958 he paid
to and received from petitioner a first class ticket. But
petitioner asserts that said ticket did not represent the true
and complete intent and agreement of the parties; that said
respondent knew that he did not have confirmed reservations
for first class on any specific flight, although he had tourist
class protection; that, accordingly, the issuance of a first class
ticket was no guarantee that he would have a first class ride,
but that such would depend upon the availability of first class
seats.
These are matters which petitioner has thoroughly presented
and discussed in its brief before the Court of Appeals under its
third assignment of error, which reads: "The trial court erred
in finding that plaintiff had confirmed reservations for, and a
right to, first class seats on the "definite" segments of his
journey, particularly that from Saigon to Beirut". 21
And, the Court of Appeals disposed of this contention thus:
Defendant seems to capitalize on the argument that the
issuance of a first-class ticket was no guarantee that the
passenger to whom the same had been issued, would be
accommodated in the first-class compartment, for as in the
case of plaintiff he had yet to make arrangements upon
arrival at every station for the necessary first-class
reservation. We are not impressed by such a reasoning. We
cannot understand how a reputable firm like defendant
airplane company could have the indiscretion to give out
tickets it never meant to honor at all. It received the
corresponding amount in payment of first-class tickets and
yet it allowed the passenger to be at the mercy of its
employees. It is more in keeping with the ordinary course of
business that the company should know whether or riot the
tickets it issues are to be honored or not.22
Not that the Court of Appeals is alone. The trial court similarly
disposed of petitioner's contention, thus:
On the fact that plaintiff paid for, and was issued a "First
class" ticket, there can be no question. Apart from his
testimony, see plaintiff's Exhibits "A", "A-1", "B", "B-1," "B-2",
"C" and "C-1", and defendant's own witness, Rafael Altonaga,
confirmed plaintiff's testimony and testified as follows:
24
Q. In these tickets there are marks "O.K." From what you know,
what does this OK mean?
A. That the space is confirmed.
Q. Confirmed for first class?
A. Yes, "first class". (Transcript, p. 169)
xxx xxx xxx
Defendant tried to prove by the testimony of its witnesses Luis
Zaldariaga and Rafael Altonaga that although plaintiff paid for,
and was issued a "first class" airplane ticket, the ticket was
subject to confirmation in Hongkong. The court cannot give
credit to the testimony of said witnesses. Oral evidence cannot
prevail over written evidence, and plaintiff's Exhibits "A", "A-l",
"B", "B-l", "C" and "C-1" belie the testimony of said witnesses,
and clearly show that the plaintiff was issued, and paid for, a
first class ticket without any reservation whatever.
Furthermore, as hereinabove shown, defendant's own witness
Rafael Altonaga testified that the reservation for a "first class"
accommodation for the plaintiff was confirmed. The court cannot
believe that after such confirmation defendant had a verbal
understanding with plaintiff that the "first class" ticket issued to
him by defendant would be subject to confirmation in
Hongkong. 23
We have heretofore adverted to the fact that except for a slight
difference of a few pesos in the amount refunded on
Carrascoso's ticket, the decision of the Court of First Instance
was affirmed by the Court of Appeals in all other respects. We
hold the view that such a judgment of affirmance has merged
the judgment of the lower court. 24Implicit in that affirmance is
a determination by the Court of Appeals that the proceeding in
the Court of First Instance was free from prejudicial error and "all
questions raised by the assignments of error and all questions
that might have been raised are to be regarded as finally
adjudicated against the appellant". So also, the judgment
affirmed "must be regarded as free from all error". 25 We
reached this policy construction because nothing in the decision
of the Court of Appeals on this point would suggest that its
findings of fact are in any way at war with those of the trial
court. Nor was said affirmance by the Court of Appeals upon a
ground or grounds different from those which were made the
basis of the conclusions of the trial court. 26
If, as petitioner underscores, a first-class-ticket holder is not
entitled to a first class seat, notwithstanding the fact that seat
availability in specific flights is therein confirmed, then an air
passenger is placed in the hollow of the hands of an airline.
What security then can a passenger have? It will always be an
easy matter for an airline aided by its employees, to strike out
the very stipulations in the ticket, and say that there was a
verbal agreement to the contrary. What if the passenger had
a schedule to fulfill? We have long learned that, as a rule, a
written document speaks a uniform language; that spoken
word could be notoriously unreliable. If only to achieve
stability in the relations between passenger and air carrier,
adherence to the ticket so issued is desirable. Such is the
case here. The lower courts refused to believe the oral
evidence intended to defeat the covenants in the ticket.
The foregoing are the considerations which point to the
conclusion that there are facts upon which the Court of
Appeals predicated the finding that respondent Carrascoso
had a first class ticket and was entitled to a first class seat at
Bangkok, which is a stopover in the Saigon to Beirut leg of the
flight. 27 We perceive no "welter of distortions by the Court of
Appeals of petitioner's statement of its position", as charged
by petitioner. 28 Nor do we subscribe to petitioner's
accusation that respondent Carrascoso "surreptitiously took a
first class seat to provoke an issue". 29 And this because, as
petitioner states, Carrascoso went to see the Manager at his
office in Bangkok "to confirm my seat and because from
Saigon I was told again to see the Manager". 30 Why, then,
was he allowed to take a first class seat in the plane at
Bangkok, if he had no seat? Or, if another had a better right to
the seat?
4. Petitioner assails respondent court's award of moral
damages. Petitioner's trenchant claim is that Carrascoso's
action is planted upon breach of contract; that to authorize an
award for moral damages there must be an averment of fraud
or bad faith;31 and that the decision of the Court of Appeals
fails to make a finding of bad faith. The pivotal allegations in
the complaint bearing on this issue are:
25
3. That ... plaintiff entered into a contract of air carriage with the
Philippine Air Lines for a valuable consideration, the latter acting
as general agents for and in behalf of the defendant, under
which said contract, plaintiff was entitled to, as defendant
agreed to furnish plaintiff, First Class passage on defendant's
plane during the entire duration of plaintiff's tour of Europe with
Hongkong as starting point up to and until plaintiff's return trip
to Manila, ... .
4. That, during the first two legs of the trip from Hongkong to
Saigon and from Saigon to Bangkok, defendant furnished to the
plaintiff First Class accommodation but only after protestations,
arguments and/or insistence were made by the plaintiff with
defendant's employees.
5. That finally, defendant failed to provide First Class passage,
but instead furnished plaintiff only TouristClass accommodations
from Bangkok to Teheran and/or Casablanca, ... the plaintiff has
been compelled by defendant's employees to leave the First
Class accommodation berths at Bangkok after he was already
seated.
6. That consequently, the plaintiff, desiring no repetition of the
inconvenience and embarrassments brought by defendant's
breach of contract was forced to take a Pan American World
Airways plane on his return trip from Madrid to Manila.32
xxx xxx xxx
2. That likewise, as a result of defendant's failure to furnish First
Class accommodations aforesaid, plaintiff suffered
inconveniences, embarrassments, and humiliations, thereby
causing plaintiff mental anguish, serious anxiety, wounded
feelings, social humiliation, and the like injury, resulting in moral
damages in the amount of P30,000.00. 33
xxx xxx xxx
The foregoing, in our opinion, substantially aver: First, That there
was a contract to furnish plaintiff a first class passage covering,
amongst others, the Bangkok-Teheran leg; Second, That said
contract was breached when petitioner failed to furnish first
class transportation at Bangkok; and Third, that there was bad
faith when petitioner's employee compelled Carrascoso to leave
his first class accommodation berth "after he was already,
seated" and to take a seat in the tourist class, by reason of
which he suffered inconvenience, embarrassments and
humiliations, thereby causing him mental anguish, serious
anxiety, wounded feelings and social humiliation, resulting in
moral damages. It is true that there is no specific mention of
the term bad faith in the complaint. But, the inference of bad
faith is there, it may be drawn from the facts and
circumstances set forth therein. 34 The contract was averred
to establish the relation between the parties. But the stress of
the action is put on wrongful expulsion.
Quite apart from the foregoing is that (a) right the start of the
trial, respondent's counsel placed petitioner on guard on what
Carrascoso intended to prove: That while sitting in the plane
in Bangkok, Carrascoso was oustedby petitioner's manager
who gave his seat to a white man; 35 and (b) evidence of bad
faith in the fulfillment of the contract was presented without
objection on the part of the petitioner. It is, therefore,
unnecessary to inquire as to whether or not there is sufficient
averment in the complaint to justify an award for moral
damages. Deficiency in the complaint, if any, was cured by
the evidence. An amendment thereof to conform to the
evidence is not even required. 36 On the question of bad
faith, the Court of Appeals declared:
That the plaintiff was forced out of his seat in the first class
compartment of the plane belonging to the defendant Air
France while at Bangkok, and was transferred to the tourist
class not only without his consent but against his will, has
been sufficiently established by plaintiff in his testimony
before the court, corroborated by the corresponding entry
made by the purser of the plane in his notebook which
notation reads as follows:
"First-class passenger was forced to go to the tourist class
against his will, and that the captain refused to intervene",
and by the testimony of an eye-witness, Ernesto G. Cuento,
who was a co-passenger. The captain of the plane who was
asked by the manager of defendant company at Bangkok to
intervene even refused to do so. It is noteworthy that no one
on behalf of defendant ever contradicted or denied this
evidence for the plaintiff. It could have been easy for
defendant to present its manager at Bangkok to testify at the
26
trial of the case, or yet to secure his disposition; but defendant
did neither. 37
The Court of appeals further stated
Neither is there evidence as to whether or not a prior
reservation was made by the white man. Hence, if the
employees of the defendant at Bangkok sold a first-class ticket
to him when all the seats had already been taken, surely the
plaintiff should not have been picked out as the one to suffer the
consequences and to be subjected to the humiliation and
indignity of being ejected from his seat in the presence of
others. Instead of explaining to the white man the improvidence
committed by defendant's employees, the manager adopted the
more drastic step of ousting the plaintiff who was then safely
ensconsced in his rightful seat. We are strengthened in our belief
that this probably was what happened there, by the testimony of
defendant's witness Rafael Altonaga who, when asked to explain
the meaning of the letters "O.K." appearing on the tickets of
plaintiff, said "that the space is confirmed for first class.
Likewise, Zenaida Faustino, another witness for defendant, who
was the chief of the Reservation Office of defendant, testified as
follows:
"Q How does the person in the ticket-issuing office know what
reservation the passenger has arranged with you?
A They call us up by phone and ask for the confirmation." (t.s.n.,
p. 247, June 19, 1959)
In this connection, we quote with approval what the trial Judge
has said on this point:
Why did the, using the words of witness Ernesto G. Cuento,
"white man" have a "better right" to the seat occupied by Mr.
Carrascoso? The record is silent. The defendant airline did not
prove "any better", nay, any right on the part of the "white man"
to the "First class" seat that the plaintiff was occupying and for
which he paid and was issued a corresponding "first class"
ticket.
If there was a justified reason for the action of the defendant's
Manager in Bangkok, the defendant could have easily proven it
by having taken the testimony of the said Manager by
deposition, but defendant did not do so; the presumption is that
evidence willfully suppressed would be adverse if produced
[Sec. 69, par (e), Rules of Court]; and, under the
circumstances, the Court is constrained to find, as it does
find, that the Manager of the defendant airline in Bangkok not
merely asked but threatened the plaintiff to throw him out of
the plane if he did not give up his "first class" seat because
the said Manager wanted to accommodate, using the words of
the witness Ernesto G. Cuento, the "white man".38
It is really correct to say that the Court of Appeals in the
quoted portion first transcribed did not use the term "bad
faith". But can it be doubted that the recital of facts therein
points to bad faith? The manager not only prevented
Carrascoso from enjoying his right to a first class seat; worse,
he imposed his arbitrary will; he forcibly ejected him from his
seat, made him suffer the humiliation of having to go to the
tourist class compartment - just to give way to another
passenger whose right thereto has not been established.
Certainly, this is bad faith. Unless, of course, bad faith has
assumed a meaning different from what is understood in law.
For, "bad faith" contemplates a "state of mind affirmatively
operating with furtive design or with some motive of self-
interest or will or for ulterior purpose." 39
And if the foregoing were not yet sufficient, there is the
express finding of bad faith in the judgment of the Court of
First Instance, thus:
The evidence shows that the defendant violated its contract
of transportation with plaintiff in bad faith, with the
aggravating circumstances that defendant's Manager in
Bangkok went to the extent of threatening the plaintiff in the
presence of many passengers to have him thrown out of the
airplane to give the "first class" seat that he was occupying
to, again using the words of the witness Ernesto G. Cuento, a
"white man" whom he (defendant's Manager) wished to
accommodate, and the defendant has not proven that this
"white man" had any "better right" to occupy the "first class"
seat that the plaintiff was occupying, duly paid for, and for
which the corresponding "first class" ticket was issued by the
defendant to him.40
5. The responsibility of an employer for the tortious act of its
employees need not be essayed. It is well settled in
27
law. 41 For the willful malevolent act of petitioner's manager,
petitioner, his employer, must answer. Article 21 of the Civil
Code says:
ART. 21. Any person who willfully causes loss or injury to another
in a manner that is contrary to morals, good customs or public
policy shall compensate the latter for the damage.
In parallel circumstances, we applied the foregoing legal
precept; and, we held that upon the provisions of Article 2219
(10), Civil Code, moral damages are recoverable. 42
6. A contract to transport passengers is quite different in kind
and degree from any other contractual relation. 43And this,
because of the relation which an air-carrier sustains with the
public. Its business is mainly with the travelling public. It invites
people to avail of the comforts and advantages it offers. The
contract of air carriage, therefore, generates a relation attended
with a public duty. Neglect or malfeasance of the carrier's
employees, naturally, could give ground for an action for
damages.
Passengers do not contract merely for transportation. They have
a right to be treated by the carrier's employees with kindness,
respect, courtesy and due consideration. They are entitled to be
protected against personal misconduct, injurious language,
indignities and abuses from such employees. So it is, that any
rule or discourteous conduct on the part of employees towards a
passenger gives the latter an action for damages against the
carrier. 44
Thus, "Where a steamship company 45 had accepted a
passenger's check, it was a breach of contract and a tort, giving
a right of action for its agent in the presence of third persons to
falsely notify her that the check was worthless and demand
payment under threat of ejection, though the language used
was not insulting and she was not ejected." 46 And this,
because, although the relation of passenger and carrier is
"contractual both in origin and nature" nevertheless "the act
that breaks the contract may be also a tort". 47 And in another
case, "Where a passenger on a railroad train, when the
conductor came to collect his fare tendered him the cash fare to
a point where the train was scheduled not to stop, and told him
that as soon as the train reached such point he would pay the
cash fare from that point to destination, there was nothing in
the conduct of the passenger which justified the conductor in
using insulting language to him, as by calling him a
lunatic," 48 and the Supreme Court of South Carolina there
held the carrier liable for the mental suffering of said
passenger.1awphl.nt
Petitioner's contract with Carrascoso is one attended with
public duty. The stress of Carrascoso's action as we have said,
is placed upon his wrongful expulsion. This is a violation of
public duty by the petitioner air carrier a case of quasi-
delict. Damages are proper.
7. Petitioner draws our attention to respondent Carrascoso's
testimony, thus
Q You mentioned about an attendant. Who is that attendant
and purser?
A When we left already that was already in the trip I
could not help it. So one of the flight attendants approached
me and requested from me my ticket and I said, What for?
and she said, "We will note that you transferred to the tourist
class". I said, "Nothing of that kind. That is tantamount to
accepting my transfer." And I also said, "You are not going to
note anything there because I am protesting to this transfer".
Q Was she able to note it?
A No, because I did not give my ticket.
Q About that purser?
A Well, the seats there are so close that you feel
uncomfortable and you don't have enough leg room, I stood
up and I went to the pantry that was next to me and the
purser was there. He told me, "I have recorded the incident in
my notebook." He read it and translated it to me because it
was recorded in French "First class passenger was forced to
go to the tourist class against his will, and that the captain
refused to intervene."
Mr. VALTE
I move to strike out the last part of the testimony of the
witness because the best evidence would be the notes. Your
Honor.
28
COURT fees. The least that can be said is that the courts below felt
that it is but just and equitable that attorneys' fees be
I will allow that as part of his testimony. 49
given. 55 We do not intend to break faith with the tradition
Petitioner charges that the finding of the Court of Appeals that that discretion well exercised as it was here should not
the purser made an entry in his notebook reading "First class be disturbed.
passenger was forced to go to the tourist class against his will,
10. Questioned as excessive are the amounts decreed by both
and that the captain refused to intervene" is predicated upon
the trial court and the Court of Appeals, thus: P25,000.00 as
evidence [Carrascoso's testimony above] which is incompetent.
moral damages; P10,000.00, by way of exemplary damages,
We do not think so. The subject of inquiry is not the entry, but
and P3,000.00 as attorneys' fees. The task of fixing these
the ouster incident. Testimony on the entry does not come
amounts is primarily with the trial court. 56 The Court of
within the proscription of the best evidence rule. Such testimony
Appeals did not interfere with the same. The dictates of good
is admissible. 49a
sense suggest that we give our imprimatur thereto. Because,
Besides, from a reading of the transcript just quoted, when the the facts and circumstances point to the reasonableness
dialogue happened, the impact of the startling occurrence was thereof.57
still fresh and continued to be felt. The excitement had not as
On balance, we say that the judgment of the Court of Appeals
yet died down. Statements then, in this environment, are
does not suffer from reversible error. We accordingly vote to
admissible as part of the res gestae. 50 For, they grow "out of
affirm the same. Costs against petitioner. So ordered.
the nervous excitement and mental and physical condition of
the declarant". 51 The utterance of the purser regarding his Concepcion, C.J., Reyes, J.B.L., Barrera, Dizon, Regala,
entry in the notebook was spontaneous, and related to the Makalintal, Zaldivar and Castro, JJ., concur.
circumstances of the ouster incident. Its trustworthiness has Bengzon, J.P., J., took no part.
been guaranteed. 52 It thus escapes the operation of the
hearsay rule. It forms part of the res gestae.
At all events, the entry was made outside the Philippines. And,
by an employee of petitioner. It would have been an easy matter
for petitioner to have contradicted Carrascoso's testimony. If it
were really true that no such entry was made, the deposition of
the purser could have cleared up the matter.
We, therefore, hold that the transcribed testimony of Carrascoso
is admissible in evidence.
8. Exemplary damages are well awarded. The Civil Code gives
the court ample power to grant exemplary damages in
contracts and quasi- contracts. The only condition is that
defendant should have "acted in a wanton, fraudulent, reckless,
oppressive, or malevolent manner." 53 The manner of ejectment
of respondent Carrascoso from his first class seat fits into this
legal precept. And this, in addition to moral damages.54
9. The right to attorney's fees is fully established. The grant of
exemplary damages justifies a similar judgment for attorneys'

29

Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
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 Decision1 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 plaintiffs-appellees 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
30
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 pay P1,000,000.00 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 non-
refundable; (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 non-
refundability 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
31
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 principal-agent
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
32
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 re-issue 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
33
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
34
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
35
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.,23 CAI 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 no vinculum 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
36
the tort committed by its agents employees and the
principal-agency relationship per 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 extra-
contractual liability with certain well-defined
exceptions to cases in which moral culpability
can be directly imputed to the persons to be
charged. This moral responsibility may consist in
having failed to exercise due care in 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
37
 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 In Samson 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
38
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
39
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.
40
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
41
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
42
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.
SO ORDERED.

43
 spoke to anyone after leaving the power house where they
Republic of the Philippines had asked for Mr. Murphy.
SUPREME COURT
After watching the operation of the travelling crane used in
Manila
handling the defendant's coal, they walked across the open
EN BANC space in the neighborhood of the place where the company
dumped in the cinders and ashes from its furnaces. Here they
G.R. No. L-4977 March 22, 1910
found some twenty or thirty brass fulminating caps scattered
DAVID TAYLOR, plaintiff-appellee, on the ground. These caps are approximately of the size and
vs. appearance of small pistol cartridges and each has attached
THE MANILA ELECTRIC RAILROAD AND LIGHT to it two long thin wires by means of which it may be
COMPANY, defendant-appellant. discharged by the use of electricity. They are intended for use
W. H. Lawrence, for appellant. in the explosion of blasting charges of dynamite, and have in
W. L. Wright, for appellee. themselves a considerable explosive power. After some
discussion as to the ownership of the caps, and their right to
CARSON, J.: take them, the boys picked up all they could find, hung them
An action to recover damages for the loss of an eye and other on stick, of which each took end, and carried them home.
injuries, instituted by David Taylor, a minor, by his father, his After crossing the footbridge, they met a little girl named
nearest relative. Jessie Adrian, less than 9 years old, and all three went to the
home of the boy Manuel. The boys then made a series of
The defendant is a foreign corporation engaged in the operation experiments with the caps. They trust the ends of the wires
of a street railway and an electric light system in the city of into an electric light socket and obtained no result. They next
Manila. Its power plant is situated at the eastern end of a small tried to break the cap with a stone and failed. Manuel looked
island in the Pasig River within the city of Manila, known as the for a hammer, but could not find one. Then they opened one
Isla del Provisor. The power plant may be reached by boat or by of the caps with a knife, and finding that it was filled with a
crossing a footbridge, impassable for vehicles, at the westerly yellowish substance they got matches, and David held the
end of the island. cap while Manuel applied a lighted match to the contents. An
The plaintiff, David Taylor, was at the time when he received the explosion followed, causing more or less serious injuries to all
injuries complained of, 15 years of age, the son of a mechanical three. Jessie, who when the boys proposed putting a match to
engineer, more mature than the average boy of his age, and the contents of the cap, became frightened and started to run
having considerable aptitude and training in mechanics. away, received a slight cut in the neck. Manuel had his hand
burned and wounded, and David was struck in the face by
On the 30th of September, 1905, plaintiff, with a boy named several particles of the metal capsule, one of which injured his
Manuel Claparols, about 12 years of age, crossed the footbridge right eye to such an extent as to the necessitate its removal
to the Isla del Provisor, for the purpose of visiting one Murphy, by the surgeons who were called in to care for his wounds.
an employee of the defendant, who and promised to make them
a cylinder for a miniature engine. Finding on inquiry that Mr. The evidence does definitely and conclusively disclose how
Murphy was not in his quarters, the boys, impelled apparently by the caps came to be on the defendant's premises, nor how
youthful curiosity and perhaps by the unusual interest which long they had been there when the boys found them. It
both seem to have taken in machinery, spent some time in appears, however, that some months before the accident,
wandering about the company's premises. The visit was made during the construction of the defendant's plant, detonating
on a Sunday afternoon, and it does not appear that they saw or caps of the same size and kind as those found by the boys
were used in sinking a well at the power plant near the place
44
where the caps were found; and it also appears that at or about
the time when these caps were found, similarly caps were in use
in the construction of an extension of defendant's street car line
to Fort William McKinley. The caps when found appeared to the
boys who picked them up to have been lying for a considerable
time, and from the place where they were found would seem to
have been discarded as detective or worthless and fit only to be
thrown upon the rubbish heap.
No measures seems to have been adopted by the defendant
company to prohibit or prevent visitors from entering and
walking about its premises unattended, when they felt disposed
so to do. As admitted in defendant counsel's brief, "it is
undoubtedly true that children in their play sometimes crossed
the foot bridge to the islands;" and, we may add, roamed about
at will on the uninclosed premises of the defendant, in the
neighborhood of the place where the caps were found. There is
evidence that any effort ever was made to forbid these children
from visiting the defendant company's premises, although it
must be assumed that the company or its employees were
aware of the fact that they not infrequently did so.
Two years before the accident, plaintiff spent four months at sea,
as a cabin boy on one of the interisland transports. Later he took
up work in his father's office, learning mechanical drawing and
mechanical engineering. About a month after his accident he
obtained employment as a mechanical draftsman and continued
in that employment for six months at a salary of P2.50 a day;
and it appears that he was a boy of more than average
intelligence, taller and more mature both mentally and
physically than most boys of fifteen.
The facts set out in the foregoing statement are to our mind fully
and conclusively established by the evidence of record, and are
substantially admitted by counsel. The only questions of fact
which are seriously disputed are plaintiff's allegations that the
caps which were found by plaintiff on defendant company's
premises were the property of the defendant, or that they had
come from its possession and control, and that the company or
some of its employees left them exposed on its premises at the
point where they were found.
The evidence in support of these allegations is meager, and the
defendant company, apparently relying on the rule of law which
places the burden of proof of such allegations upon the
plaintiff, offered no evidence in rebuttal, and insists that
plaintiff failed in his proof. We think, however, that plaintiff's
evidence is sufficient to sustain a finding in accord with his
allegations in this regard.
It was proven that caps, similar to those found by plaintiff,
were used, more or less extensively, on the McKinley
extension of the defendant company's track; that some of
these caps were used in blasting a well on the company's
premises a few months before the accident; that not far from
the place where the caps were found the company has a
storehouse for the materials, supplies and so forth, used by it
in its operations as a street railway and a purveyor of electric
light; and that the place, in the neighborhood of which the
caps were found, was being used by the company as a sort of
dumping ground for ashes and cinders. Fulminating caps or
detonators for the discharge by electricity of blasting charges
by dynamite are not articles in common use by the average
citizen, and under all the circumstances, and in the absence
of all evidence to the contrary, we think that the discovery of
twenty or thirty of these caps at the place where they were
found by the plaintiff on defendant's premises fairly justifies
the inference that the defendant company was either the
owner of the caps in question or had the caps under its
possession and control. We think also that the
evidence tends to disclose that these caps or detonators were
willfully and knowingly thrown by the company or its
employees at the spot where they were found, with the
expectation that they would be buried out of the sight by the
ashes which it was engaged in dumping in that neighborhood,
they being old and perhaps defective; and, however this may
be, we are satisfied that the evidence is sufficient to sustain a
finding that the company or some of its employees either
willfully or through an oversight left them exposed at a point
on its premises which the general public, including children at
play, where not prohibited from visiting, and over which the
company knew or ought to have known that young boys were
likely to roam about in pastime or in play.
Counsel for appellant endeavors to weaken or destroy the
probative value of the facts on which these conclusions are
based by intimidating or rather assuming that the blasting
45
work on the company's well and on its McKinley extension was
done by contractors. It was conclusively proven, however, that
while the workman employed in blasting the well was regularly
employed by J. G. White and Co., a firm of contractors, he did
the work on the well directly and immediately under the
supervision and control of one of defendant company's foremen,
and there is no proof whatever in the record that the blasting on
the McKinley extension was done by independent contractors.
Only one witness testified upon this point, and while he stated
that he understood that a part of this work was done by
contract, he could not say so of his own knowledge, and knew
nothing of the terms and conditions of the alleged contract, or of
the relations of the alleged contractor to the defendant
company. The fact having been proven that detonating caps
were more or less extensively employed on work done by the
defendant company's directions and on its behalf, we think that
the company should have introduced the necessary evidence to
support its contention if it wished to avoid the not unreasonable
inference that it was the owner of the material used in these
operations and that it was responsible for tortious or negligent
acts of the agents employed therein, on the ground that this
work had been intrusted to independent contractors as to whose
acts the maxim respondent superior should not be applied. If the
company did not in fact own or make use of caps such as those
found on its premises, as intimated by counsel, it was a very
simple matter for it to prove that fact, and in the absence of
such proof we think that the other evidence in the record
sufficiently establishes the contrary, and justifies the court in
drawing the reasonable inference that the caps found on its
premises were its property, and were left where they were found
by the company or some of its employees.
Plaintiff appears to have rested his case, as did the trial judge
his decision in plaintiff's favor, upon the provisions of article
1089 of the Civil Code read together with articles 1902, 1903,
and 1908 of that code.
ART. 1089 Obligations are created by law, by contracts, by quasi-
contracts, and illicit acts and omissions or by those in which any
kind of fault or negligence occurs.
ART. 1902 A person who by an act or omission causes damage
to another when there is fault or negligence shall be obliged
to repair the damage so done.
ART. 1903 The obligation imposed by the preceding article is
demandable, not only for personal acts and omissions, but
also for those of the persons for whom they should be
responsible.
The father, and on his death or incapacity the mother, is liable
for the damages caused by the minors who live with them.
xxx xxx xxx
Owners or directors of an establishment or enterprise are
equally liable for damages caused by their employees in the
service of the branches in which the latter may be employed
or on account of their duties.
xxx xxx xxx
The liability referred to in this article shall cease when the
persons mentioned therein prove that they employed all the
diligence of a good father of a family to avoid the damage.
ART. 1908 The owners shall also be liable for the damage
caused
1 By the explosion of machines which may not have been
cared for with due diligence, and for kindling of explosive
substances which may not have been placed in a safe and
proper place.
Counsel for the defendant and appellant rests his appeal
strictly upon his contention that the facts proven at the trial
do not established the liability of the defendant company
under the provisions of these articles, and since we agree
with this view of the case, it is not necessary for us to
consider the various questions as to form and the right of
action (analogous to those raised in the case of Rakes vs.
Atlantic, Gulf and Pacific Co., 7 Phil. Rep., 359), which would,
perhaps, be involved in a decision affirming the judgment of
the court below.
We agree with counsel for appellant that under the Civil Code,
as under the generally accepted doctrine in the United States,
the plaintiff in an action such as that under consideration, in
46
order to establish his right to a recovery, must establish by
competent evidence:
(1) Damages to the plaintiff.
(2) Negligence by act or omission of which defendant personally,
or some person for whose acts it must respond, was guilty.
(3) The connection of cause and effect between the negligence
and the damage.
These proposition are, of course, elementary, and do not admit
of discussion, the real difficulty arising in the application of these
principles to the particular facts developed in the case under
consideration.
It is clear that the accident could not have happened and not the
fulminating caps been left exposed at the point where they were
found, or if their owner had exercised due care in keeping them
in an appropriate place; but it is equally clear that plaintiff would
not have been injured had he not, for his own pleasure and
convenience, entered upon the defendant's premises, and
strolled around thereon without the express permission of the
defendant, and had he not picked up and carried away the
property of the defendant which he found on its premises, and
had he not thereafter deliberately cut open one of the caps and
applied a match to its contents.
But counsel for plaintiff contends that because of plaintiff's
youth and inexperience, his entry upon defendant company's
premises, and the intervention of his action between the
negligent act of defendant in leaving the caps exposed on its
premises and the accident which resulted in his injury should not
be held to have contributed in any wise to the accident, which
should be deemed to be the direct result of defendant's
negligence in leaving the caps exposed at the place where they
were found by the plaintiff, and this latter the proximate cause
of the accident which occasioned the injuries sustained by him.
In support of his contention, counsel for plaintiff relies on the
doctrine laid down in many of the courts of last resort in the
United States in the cases known as the "Torpedo" and
"Turntable" cases, and the cases based thereon.
In a typical cases, the question involved has been whether a
railroad company is liable for an injury received by an infant of
tender years, who from mere idle curiosity, or for the
purposes of amusement, enters upon the railroad company's
premises, at a place where the railroad company knew, or had
good reason to suppose, children would be likely to come, and
there found explosive signal torpedoes left unexposed by the
railroad company's employees, one of which when carried
away by the visitor, exploded and injured him; or where such
infant found upon the premises a dangerous machine, such as
a turntable, left in such condition as to make it probable that
children in playing with it would be exposed to accident or
injury therefrom and where the infant did in fact suffer injury
in playing with such machine.
In these, and in great variety of similar cases, the great
weight of authority holds the owner of the premises liable.
As laid down in Railroad Co. vs. Stout (17 Wall. (84 U. S.),
657), wherein the principal question was whether a railroad
company was liable for in injury received by an infant while
upon its premises, from idle curiosity, or for purposes of
amusement, if such injury was, under circumstances,
attributable to the negligence of the company), the principles
on which these cases turn are that "while a railroad company
is not bound to the same degree of care in regard to mere
strangers who are unlawfully upon its premises that it owes to
passengers conveyed by it, it is not exempt from
responsibility to such strangers for injuries arising from its
negligence or from its tortious acts;" and that "the conduct of
an infant of tender years is not to be judged by the same rule
which governs that of adult. While it is the general rule in
regard to an adult that to entitle him to recover damages for
an injury resulting from the fault or negligence of another he
must himself have been free from fault, such is not the rule in
regard to an infant of tender years. The care and caution
required of a child is according to his maturity and capacity
only, and this is to be determined in each case by the
circumstances of the case."
The doctrine of the case of Railroad Company vs. Stout was
vigorously controverted and sharply criticized in several state
courts, and the supreme court of Michigan in the case of Ryan
vs. Towar (128 Mich., 463) formally repudiated and
disapproved the doctrine of the Turntable cases, especially
47
that laid down in Railroad Company vs. Stout, in a very able
decision wherein it held, in the language of the syllabus: (1) That
the owner of the land is not liable to trespassers thereon for
injuries sustained by them, not due to his wanton or willful acts;
(2) that no exception to this rule exists in favor of children who
are injured by dangerous machinery naturally calculated to
attract them to the premises; (3) that an invitation or license to
cross the premises of another can not be predicated on the mere
fact that no steps have been taken to interfere with such
practice; (4) that there is no difference between children and
adults as to the circumstances that will warrant the inference of
an invitation or a license to enter upon another's premises.
Similar criticisms of the opinion in the case of Railroad Company
vs. Stout were indulged in by the courts in Connecticut and
Massachusetts. (Nolan vs. Railroad Co., 53 Conn., 461; 154
Mass., 349). And the doctrine has been questioned in Wisconsin,
Pennsylvania, New Hampshire, and perhaps in other States.
On the other hand, many if not most of the courts of last resort
in the United States, citing and approving the doctrine laid down
in England in the leading case of Lynch vs. Nurding (1 Q. B., 29,
35, 36), lay down the rule in these cases in accord with that
announced in the Railroad Company vs. Stout (supra), and the
Supreme Court of the United States, in a unanimous opinion
delivered by Justice Harlan in the case of Union Pacific Railway
Co. vs. McDonal and reconsidered the doctrine laid down in
Railroad Co. vs. Stout, and after an exhaustive and critical
analysis and review of many of the adjudged cases, both English
and American, formally declared that it adhered "to the
principles announced in the case of Railroad Co. vs. Stout."
In the case of Union Pacific Railway Co. vs. MacDonald (supra)
the facts were as follows: The plaintiff, a boy 12 years of age,
out of curiosity and for his own pleasure, entered upon and
visited the defendant's premises, without defendant's express
permission or invitation, and while there, was by accident
injured by falling into a burning slack pile of whose existence he
had no knowledge, but which had been left by defendant on its
premises without any fence around it or anything to give
warning of its dangerous condition, although defendant knew or
had reason the interest or curiosity of passers-by. On these facts
the court held that the plaintiff could not be regarded as a mere
trespasser, for whose safety and protection while on the
premises in question, against the unseen danger referred to,
the defendant was under no obligation to make provision.
We quote at length from the discussion by the court of the
application of the principles involved to the facts in that case,
because what is said there is strikingly applicable in the case
at bar, and would seem to dispose of defendant's contention
that, the plaintiff in this case being a trespasser, the
defendant company owed him no duty, and in no case could
be held liable for injuries which would not have resulted but
for the entry of plaintiff on defendant's premises.
We adhere to the principles announced in Railroad Co. vs.
Stout (supra). Applied to the case now before us, they require
us to hold that the defendant was guilty of negligence in
leaving unguarded the slack pile, made by it in the vicinity of
its depot building. It could have forbidden all persons from
coming to its coal mine for purposes merely of curiosity and
pleasure. But it did not do so. On the contrary, it permitted all,
without regard to age, to visit its mine, and witness its
operation. It knew that the usual approach to the mine was by
a narrow path skirting its slack pit, close to its depot building,
at which the people of the village, old and young, would often
assemble. It knew that children were in the habit of
frequenting that locality and playing around the shaft house
in the immediate vicinity of the slack pit. The slightest regard
for the safety of these children would have suggested that
they were in danger from being so near a pit, beneath the
surface of which was concealed (except when snow, wind, or
rain prevailed) a mass of burning coals into which a child
might accidentally fall and be burned to death. Under all the
circumstances, the railroad company ought not to be heard to
say that the plaintiff, a mere lad, moved by curiosity to see
the mine, in the vicinity of the slack pit, was a trespasser, to
whom it owed no duty, or for whose protection it was under
no obligation to make provisions.
In Townsend vs. Wathen (9 East, 277, 281) it was held that if a
man dangerous traps, baited with flesh, in his own ground, so
near to a highway, or to the premises of another, that dogs
passing along the highway, or kept in his neighbors premises,
would probably be attracted by their instinct into the traps,
48
and in consequence of such act his neighbor's dogs be so
attracted and thereby injured, an action on the case would lie.
"What difference," said Lord Ellenborough, C.J., "is there in
reason between drawing the animal into the trap by means of
his instinct which he can not resist, and putting him there by
manual force?" What difference, in reason we may observe in
this case, is there between an express license to the children of
this village to visit the defendant's coal mine, in the vicinity of
its slack pile, and an implied license, resulting from the habit of
the defendant to permit them, without objection or warning, to
do so at will, for purposes of curiosity or pleasure? Referring it
the case of Townsend vs. Wathen, Judge Thompson, in his work
on the Law of Negligence, volume 1, page 305, note, well says:
"It would be a barbarous rule of law that would make the owner
of land liable for setting a trap thereon, baited with stinking
meat, so that his neighbor's dog attracted by his natural instinct,
might run into it and be killed, and which would exempt him
from liability for the consequence of leaving exposed and
unguarded on his land a dangerous machine, so that his
neighbor's child attracted to it and tempted to intermeddle with
it by instincts equally strong, might thereby be killed or maimed
for life."
Chief Justice Cooley, voicing the opinion of the supreme court of
Michigan, in the case of Powers vs. Harlow (53 Mich., 507), said
that (p. 515):
Children, wherever they go, must be expected to act upon
childlike instincts and impulses; and others who are chargeable
with a duty of care and caution toward them must calculate
upon this, and take precautions accordingly. If they leave
exposed to the observation of children anything which would be
tempting to them, and which they in their immature judgment
might naturally suppose they were at liberty to handle or play
with, they should expect that liberty to be taken.
And the same eminent jurist in his treatise or torts, alluding to
the doctrine of implied invitation to visit the premises of
another, says:
In the case of young children, and other persons not fully sui
juris, an implied license might sometimes arise when it would
not on behalf of others. Thus leaving a tempting thing for
children to play with exposed, where they would be likely to
gather for that purpose, may be equivalent to an invitation to
them to make use of it; and, perhaps, if one were to throw
away upon his premises, near the common way, things
tempting to children, the same implication should arise.
(Chap. 10, p. 303.)
The reasoning which led the Supreme Court of the United
States to its conclusion in the cases of Railroad Co. vs.
Stout (supra) and Union Pacific Railroad Co. vs.
McDonald (supra) is not less cogent and convincing in this
jurisdiction than in that wherein those cases originated.
Children here are actuated by similar childish instincts and
impulses. Drawn by curiosity and impelled by the restless
spirit of youth, boys here as well as there will usually be found
whenever the public is permitted to congregate. The
movement of machinery, and indeed anything which arouses
the attention of the young and inquiring mind, will draw them
to the neighborhood as inevitably as does the magnet draw
the iron which comes within the range of its magnetic
influence. The owners of premises, therefore, whereon things
attractive to children are exposed, or upon which the public
are expressly or impliedly permitted to enter or upon which
the owner knows or ought to know children are likely to roam
about for pastime and in play, " must calculate upon this, and
take precautions accordingly." In such cases the owner of the
premises can not be heard to say that because the child has
entered upon his premises without his express permission he
is a trespasser to whom the owner owes no duty or obligation
whatever. The owner's failure to take reasonable precautions
to prevent the child from entering his premises at a place
where he knows or ought to know that children are
accustomed to roam about of to which their childish instincts
and impulses are likely to attract them is at least equivalent
to an implied license to enter, and where the child does enter
under such conditions the owner's failure to take reasonable
precautions to guard the child against injury from unknown or
unseen dangers, placed upon such premises by the owner, is
clearly a breach of duty, responsible, if the child is actually
injured, without other fault on its part than that it had entered
on the premises of a stranger without his express invitation or
permission. To hold otherwise would be expose all the children
in the community to unknown perils and unnecessary danger
49
at the whim of the owners or occupants of land upon which they
might naturally and reasonably be expected to enter.
This conclusion is founded on reason, justice, and necessity, and
neither is contention that a man has a right to do what will with
his own property or that children should be kept under the care
of their parents or guardians, so as to prevent their entering on
the premises of others is of sufficient weight to put in doubt. In
this jurisdiction as well as in the United States all private
property is acquired and held under the tacit condition that it
shall not be so used as to injure the equal rights and interests of
the community (see U. S. vs. Toribio,1 No. 5060, decided January
26, 1910), and except as to infants of very tender years it would
be absurd and unreasonable in a community organized as is that
in which we lived to hold that parents or guardian are guilty of
negligence or imprudence in every case wherein they permit
growing boys and girls to leave the parental roof unattended,
even if in the event of accident to the child the negligence of the
parent could in any event be imputed to the child so as to
deprive it a right to recover in such cases a point which we
neither discuss nor decide.
But while we hold that the entry of the plaintiff upon defendant's
property without defendant's express invitation or permission
would not have relieved defendant from responsibility for
injuries incurred there by plaintiff, without other fault on his part,
if such injury were attributable to the negligence of the
defendant, we are of opinion that under all the circumstances of
this case the negligence of the defendant in leaving the caps
exposed on its premises was not the proximate cause of the
injury received by the plaintiff, which therefore was not, properly
speaking, "attributable to the negligence of the defendant," and,
on the other hand, we are satisfied that plaintiffs action in
cutting open the detonating cap and putting match to its
contents was the proximate cause of the explosion and of the
resultant injuries inflicted upon the plaintiff, and that the
defendant, therefore is not civilly responsible for the injuries
thus incurred.
Plaintiff contends, upon the authority of the Turntable and
Torpedo cases, that because of plaintiff's youth the intervention
of his action between the negligent act of the defendant in
leaving the caps exposed on its premises and the explosion
which resulted in his injury should not be held to have
contributed in any wise to the accident; and it is because we
can not agree with this proposition, although we accept the
doctrine of the Turntable and Torpedo cases, that we have
thought proper to discuss and to consider that doctrine at
length in this decision. As was said in case of Railroad Co. vs.
Stout (supra), "While it is the general rule in regard to an
adult that to entitle him to recover damages for an injury
resulting from the fault or negligence of another he must
himself have been free from fault, such is not the rule in
regard to an infant of tender years. The care and caution
required of a child is according to his maturity and capacity
only, and this is to be determined in each case by the
circumstances of the case." As we think we have shown,
under the reasoning on which rests the doctrine of the
Turntable and Torpedo cases, no fault which would relieve
defendant of responsibility for injuries resulting from its
negligence can be attributed to the plaintiff, a well-grown boy
of 15 years of age, because of his entry upon defendant's
uninclosed premises without express permission or invitation'
but it is wholly different question whether such youth can be
said to have been free from fault when he willfully and
deliberately cut open the detonating cap, and placed a match
to the contents, knowing, as he undoubtedly did, that his
action would result in an explosion. On this point, which must
be determined by "the particular circumstances of this case,"
the doctrine laid down in the Turntable and Torpedo cases
lends us no direct aid, although it is worthy of observation
that in all of the "Torpedo" and analogous cases which our
attention has been directed, the record discloses that the
plaintiffs, in whose favor judgments have been affirmed, were
of such tender years that they were held not to have the
capacity to understand the nature or character of the
explosive instruments which fell into their hands.
In the case at bar, plaintiff at the time of the accident was a
well-grown youth of 15, more mature both mentally and
physically than the average boy of his age; he had been to
sea as a cabin boy; was able to earn P2.50 a day as a
mechanical draftsman thirty days after the injury was
incurred; and the record discloses throughout that he was
exceptionally well qualified to take care of himself. The
50
evidence of record leaves no room for doubt that, despite his
denials on the witness stand, he well knew the explosive
character of the cap with which he was amusing himself. The
series of experiments made by him in his attempt to produce an
explosion, as described by the little girl who was present, admit
of no other explanation. His attempt to discharge the cap by the
use of electricity, followed by his efforts to explode it with a
stone or a hammer, and the final success of his endeavors
brought about by the application of a match to the contents of
the caps, show clearly that he knew what he was about. Nor can
there be any reasonable doubt that he had reason to anticipate
that the explosion might be dangerous, in view of the fact that
the little girl, 9 years of age, who was within him at the time
when he put the match to the contents of the cap, became
frightened and ran away.
True, he may not have known and probably did not know the
precise nature of the explosion which might be expected from
the ignition of the contents of the cap, and of course he did not
anticipate the resultant injuries which he incurred; but he well
knew that a more or less dangerous explosion might be
expected from his act, and yet he willfully, recklessly, and
knowingly produced the explosion. It would be going far to say
that "according to his maturity and capacity" he exercised such
and "care and caution" as might reasonably be required of him,
or that defendant or anyone else should be held civilly
responsible for injuries incurred by him under such
circumstances.
The law fixes no arbitrary age at which a minor can be said to
have the necessary capacity to understand and appreciate the
nature and consequences of his own acts, so as to make it
negligence on his part to fail to exercise due care and precaution
in the commission of such acts; and indeed it would be
impracticable and perhaps impossible so to do, for in the very
nature of things the question of negligence necessarily depends
on the ability of the minor to understand the character of his
own acts and their consequences; and the age at which a minor
can be said to have such ability will necessarily depends of his
own acts and their consequences; and at the age at which a
minor can be said to have such ability will necessarily vary in
accordance with the varying nature of the infinite variety of acts
which may be done by him. But some idea of the presumed
capacity of infants under the laws in force in these Islands
may be gathered from an examination of the varying ages
fixed by our laws at which minors are conclusively presumed
to be capable of exercising certain rights and incurring certain
responsibilities, though it can not be said that these
provisions of law are of much practical assistance in cases
such as that at bar, except so far as they illustrate the rule
that the capacity of a minor to become responsible for his
own acts varies with the varying circumstances of each case.
Under the provisions of the Penal Code a minor over fifteen
years of age is presumed to be capable of committing a crime
and is to held criminally responsible therefore, although the
fact that he is less than eighteen years of age will be taken
into consideration as an extenuating circumstance (Penal
Code, arts. 8 and 9). At 10 years of age a child may, under
certain circumstances, choose which parent it prefers to live
with (Code of Civil Procedure, sec. 771). At 14 may petition for
the appointment of a guardian (Id., sec. 551), and may
consent or refuse to be adopted (Id., sec. 765). And males of
14 and females of 12 are capable of contracting a legal
marriage (Civil Code, art. 83; G. O., No. 68, sec. 1).
We are satisfied that the plaintiff in this case had sufficient
capacity and understanding to be sensible of the danger to
which he exposed himself when he put the match to the
contents of the cap; that he was sui juris in the sense that his
age and his experience qualified him to understand and
appreciate the necessity for the exercise of that degree of
caution which would have avoided the injury which resulted
from his own deliberate act; and that the injury incurred by
him must be held to have been the direct and immediate
result of his own willful and reckless act, so that while it may
be true that these injuries would not have been incurred but
for the negligence act of the defendant in leaving the caps
exposed on its premises, nevertheless plaintiff's own act was
the proximate and principal cause of the accident which
inflicted the injury.
The rule of the Roman law was: Quod quis ex culpa sua
damnum sentit, non intelligitur sentire. (Digest, book 50, tit.
17 rule 203.)
The Patidas contain the following provisions:
51
The just thing is that a man should suffer the damage which
comes to him through his own fault, and that he can not demand
reparation therefor from another. (Law 25, tit. 5, Partida 3.)
And they even said that when a man received an injury through
his own acts the grievance should be against himself and not
against another. (Law 2, tit. 7, Partida 2.)
According to ancient sages, when a man received an injury
through his own acts the grievance should be against himself
and not against another. (Law 2, tit. 7 Partida 2.)
And while there does not appear to be anything in the Civil Code
which expressly lays down the law touching contributory
negligence in this jurisdiction, nevertheless, the interpretation
placed upon its provisions by the supreme court of Spain, and by
this court in the case of Rakes vs. Atlantic, Gulf and Pacific
Co. (7 Phil. Rep., 359), clearly deny to the plaintiff in the case at
bar the right to recover damages from the defendant, in whole
or in part, for the injuries sustained by him.
The judgment of the supreme court of Spain of the 7th of March,
1902 (93 Jurisprudencia Civil, 391), is directly in point. In that
case the court said:
According to the doctrine expressed in article 1902 of the Civil
Code, fault or negligence is a source of obligation when between
such negligence and the injury there exists the relation of cause
and effect; but if the injury produced should not be the result of
acts or omissions of a third party, the latter has no obligation to
repair the same, although such acts or omission were imprudent
or unlawful, and much less when it is shown that the immediate
cause of the injury was the negligence of the injured party
himself.
The same court, in its decision of June 12, 1900, said that "the
existence of the alleged fault or negligence is not sufficient
without proof that it, and no other cause, gave rise to the
damage."
See also judgment of October 21, 1903.
To similar effect Scaevola, the learned Spanish writer, writing
under that title in his Jurisprudencia del Codigo Civil (1902
Anuario, p. 455), commenting on the decision of March 7, 1902
of the Civil Code, fault or negligence gives rise to an obligation
when between it and the damage there exists the relation of
cause and effect; but if the damage caused does not arise
from the acts or omissions of a third person, there is no
obligation to make good upon the latter, even though such
acts or omissions be imprudent or illegal, and much less so
when it is shown that the immediate cause of the damage has
been the recklessness of the injured party himself.
And again
In accordance with the fundamental principle of proof, that
the burden thereof is upon the plaintiff, it is apparent that it is
duty of him who shall claim damages to establish their
existence. The decisions of April 9, 1896, and March 18, July,
and September 27, 1898, have especially supported the
principle, the first setting forth in detail the necessary points
of the proof, which are two: An act or omission on the part of
the person who is to be charged with the liability, and the
production of the damage by said act or omission.
This includes, by inference, the establishment of a relation of
cause or effect between the act or omission and the damage;
the latter must be the direct result of one of the first two. As
the decision of March 22, 1881, said, it is necessary that the
damages result immediately and directly from an act
performed culpably and wrongfully; "necessarily presupposing
a legal ground for imputability." (Decision of October 29,
1887.)
Negligence is not presumed, but must be proven by him who
alleges it. (Scavoela, Jurisprudencia del Codigo Civil, vol. 6,
pp. 551-552.)
(Cf. decisions of supreme court of Spain of June 12, 1900, and
June 23, 1900.)
Finally we think the doctrine in this jurisdiction applicable to
the case at bar was definitely settled in this court in the
maturely considered case of Rakes vs. Atlantic, Gulf and
Pacific Co. (supra), wherein we held that while "There are
many cases (personal injury cases) was exonerated," on the
ground that "the negligence of the plaintiff was the immediate
cause of the casualty" (decisions of the 15th of January, the
19th of February, and the 7th of March, 1902, stated in
Alcubilla's Index of that year); none of the cases decided by
52
the supreme court of Spain "define the effect to be given the relation of cause and effect between the negligent act or
negligence of its causes, though not the principal one, and we omission of the defendant in leaving the caps exposed on its
are left to seek the theory of the civil law in the practice of other premises and the injuries inflicted upon the plaintiff by the
countries;" and in such cases we declared that law in this explosion of one of these caps. Under the doctrine of the
jurisdiction to require the application of "the principle of Torpedo cases, such action on the part of an infant of very
proportional damages," but expressly and definitely denied the tender years would have no effect in relieving defendant of
right of recovery when the acts of the injured party were the responsibility, but whether in view of the well-known fact
immediate causes of the accident. admitted in defendant's brief that "boys are snappers-up of
unconsidered trifles," a youth of the age and maturity of
The doctrine as laid down in that case is as follows:
plaintiff should be deemed without fault in picking up the caps
Difficulty seems to be apprehended in deciding which acts of the in question under all the circumstances of this case, we
injured party shall be considered immediate causes of the neither discuss nor decide.
accident. The test is simple. Distinction must be made between
Twenty days after the date of this decision let judgment be
the accident and the injury, between the event itself, without
entered reversing the judgment of the court below, without
which there could have been no accident, and those acts of the
costs to either party in this instance, and ten days thereafter
victim not entering into it, independent of it, but contributing to
let the record be returned to the court wherein it originated,
his own proper hurt. For instance, the cause of the accident
where the judgment will be entered in favor of the defendant
under review was the displacement of the crosspiece or the
for the costs in first instance and the complaint dismissed
failure to replace it. This produces the event giving occasion for
without day. So ordered.
damagesthat is, the sinking of the track and the sliding of the
iron rails. To this event, the act of the plaintiff in walking by the Arellano, C.J., Torres and Moreland, JJ., concur.
side of the car did not contribute, although it was an element of Johnson, J., concurs in the result.
the damage which came to himself. Had the crosspiece been out
of place wholly or partly through his act or omission of duty, that
would have been one of the determining causes of the event or Footnotes
accident, for which he would have been responsible. Where he 1 Phil. Rep., 85.
contributes to the principal occurrence, as one of its determining
factors, he can not recover. Where, in conjunction with the
occurrence, he contributes only to his own injury, he may
recover the amount that the defendant responsible for the event
should pay for such injury, less a sum deemed a suitable
equivalent for his own imprudence.
We think it is quite clear that under the doctrine thus stated, the
immediate cause of the explosion, the accident which resulted in
plaintiff's injury, was in his own act in putting a match to the
contents of the cap, and that having "contributed to the
principal occurrence, as one of its determining factors, he can
not recover."
We have not deemed it necessary to examine the effect of
plaintiff's action in picking up upon defendant's premises the
detonating caps, the property of defendant, and carrying the
53
 JARCO MARKETING CORPORATION, LEONARDO KONG,
JOSE TIOPE and ELISA PANELO, petitioners,
vs.
HONORABLE COURT OF APPEALS, CONRADO C.
AGUILAR and CRISELDA R. AGUILAR, respondents.

DAVIDE, JR., J.:

In this petition for review on certiorari under Rule 45 of the
Rules of Court, petitioners seek the reversal of the 17 June
1996 decision 1 of the Court of Appeals in C.A. G.R. No. CV
37937 and the resolution 2 denying their motion for
reconsideration. The assailed decision set aside the 15
January 1992 judgment of the Regional Trial Court (RTC),
Makati City, Branch 60 in Civil Case No. 7119 and ordered
petitioners to pay damages and attorney's fees to private
respondents Conrado and Criselda (CRISELDA) Aguilar.
Petitioner Jarco Marketing Corporation is the owner of Syvel's
Department Store, Makati City. Petitioners Leonardo Kong,
Jose Tiope and Elisa Panelo are the store's branch manager,
operations manager, and supervisor, respectively. Private
respondents are spouses and the parents of Zhieneth Aguilar
(ZHIENETH).
In the afternoon of 9 May 1983, CRISELDA and ZHIENETH
were at the 2nd floor of Syvel's Department Store, Makati City.
CRISELDA was signing her credit card slip at the payment and
verification counter when she felt a sudden gust of wind and
heard a loud thud. She looked behind her. She then beheld
her daughter ZHIENETH on the floor, her young body pinned
by the bulk of the store's gift-wrapping counter/structure.
ZHIENETH was crying and screaming for help. Although
shocked, CRISELDA was quick to ask the assistance of the
people around in lifting the counter and retrieving ZHIENETH
Republic of the Philippines from the floor. 3
SUPREME COURT
Manila ZHIENETH was quickly rushed to the Makati Medical Center
where she was operated on. The next day ZHIENETH lost her
FIRST DIVISION speech and thereafter communicated with CRISELDA by
writing on a magic slate. The injuries she sustained took their
toil on her young body. She died fourteen (14) days after the
G.R. No. 129792 December 21, 1999

54
accident or on 22 May 1983, on the hospital bed. She was six
years old. 4
The cause of her death was attributed to the injuries she
sustained. The provisional medical certificate 5 issued by
ZHIENETH's attending doctor described the extent of her
injuries:
Diagnoses:
1. Shock, severe, sec. to intra-abdominal injuries due to blunt
injury
2. Hemorrhage, massive, intraperitoneal sec. to laceration, (L)
lobe liver
3. Rupture, stomach, anterior & posterior walls
4. Complete transection, 4th position, duodenum
5. Hematoma, extensive, retroperitoneal
6. Contusion, lungs, severe
CRITICAL
After the burial of their daughter, private respondents demanded
upon petitioners the reimbursement of the hospitalization,
medical bills and wake and funeral expenses 6 which they had
incurred. Petitioners refused to pay. Consequently, private
respondents filed a complaint for damages, docketed as Civil
Case No. 7119 wherein they sought the payment of P157,522.86
for actual damages, P300,000 for moral damages, P20,000 for
attorney's fees and an unspecified amount for loss of income
and exemplary damages.
In their answer with counterclaim, petitioners denied any liability
for the injuries and consequent death of ZHIENETH. They
claimed that CRISELDA was negligent in exercising care and
diligence over her daughter by allowing her to freely roam
around in a store filled with glassware and appliances. ZHIENETH
too, was guilty of contributory negligence since she climbed the
counter, triggering its eventual collapse on her. Petitioners also
emphasized that the counter was made of sturdy wood with a
strong support; it never fell nor collapsed for the past fifteen
years since its construction.
Additionally, petitioner Jarco Marketing Corporation
maintained that it observed the diligence of a good father of a
family in the selection, supervision and control of its
employees. The other petitioners likewise raised due care and
diligence in the performance of their duties and countered
that the complaint was malicious for which they suffered
besmirched reputation and mental anguish. They sought the
dismissal of the complaint and an award of moral and
exemplary damages and attorney's fees in their favor.
In its decision 7 the trial court dismissed the complaint and
counterclaim after finding that the preponderance of the
evidence favored petitioners. It ruled that the proximate
cause of the fall of the counter on ZHIENETH was her act of
clinging to it. It believed petitioners' witnesses who testified
that ZHIENETH clung to the counter, afterwhich the structure
and the girl fell with the structure falling on top of her, pinning
her stomach. In contrast, none of private respondents'
witnesses testified on how the counter fell. The trial court also
held that CRISELDA's negligence contributed to ZHIENETH's
accident.
In absolving petitioners from any liability, the trial court
reasoned that the counter was situated at the end or corner
of the 2nd floor as a precautionary measure hence, it could
not be considered as an attractive nuisance. 8The counter
was higher than ZHIENETH. It has been in existence for fifteen
years. Its structure was safe and well-balanced. ZHIENETH,
therefore, had no business climbing on and clinging to it.
Private respondents appealed the decision, attributing as
errors of the trial court its findings that: (1) the proximate
cause of the fall of the counter was ZHIENETH's misbehavior;
(2) CRISELDA was negligent in her care of ZHIENETH; (3)
petitioners were not negligent in the maintenance of the
counter; and (4) petitioners were not liable for the death of
ZHIENETH.
Further, private respondents asserted that ZHIENETH should
be entitled to the conclusive presumption that a child below
nine (9) years is incapable of contributory negligence. And
even if ZHIENETH, at six (6) years old, was already capable of
contributory negligence, still it was physically impossible for
her to have propped herself on the counter. She had a small
55
frame (four feet high and seventy pounds) and the counter was
much higher and heavier than she was. Also, the testimony of
one of the store's former employees, Gerardo Gonzales, who
accompanied ZHIENETH when she was brought to the
emergency room of the Makati Medical Center belied petitioners'
theory that ZHIENETH climbed the counter. Gonzales claimed
that when ZHIENETH was asked by the doctor what she did,
ZHIENETH replied, "[N]othing, I did not come near the counter
and the counter just fell on me." 9 Accordingly, Gonzales'
testimony on ZHIENETH's spontaneous declaration should not
only be considered as part of res gestae but also accorded
credit.
Moreover, negligence could not be imputed to CRISELDA for it
was reasonable for her to have let go of ZHIENETH at the precise
moment that she was signing the credit card slip.
Finally, private respondents vigorously maintained that the
proximate cause of ZHIENETH's death, was petitioners'
negligence in failing to institute measures to have the counter
permanently nailed.
On the other hand, petitioners argued that private respondents
raised purely factual issues which could no longer be disturbed.
They explained that ZHIENETH's death while unfortunate and
tragic, was an accident for which neither CRISELDA nor even
ZHIENETH could entirely be held faultless and blameless.
Further, petitioners adverted to the trial court's rejection of
Gonzales' testimony as unworthy of credence.
As to private respondent's claim that the counter should have
been nailed to the ground, petitioners justified that it was not
necessary. The counter had been in existence for several years
without any prior accident and was deliberately placed at a
corner to avoid such accidents. Truth to tell, they acted without
fault or negligence for they had exercised due diligence on the
matter. In fact, the criminal case 10 for homicide through simple
negligence filed by private respondents against the individual
petitioners was dismissed; a verdict of acquittal was rendered in
their favor.
The Court of Appeals, however, decided in favor of private
respondents and reversed the appealed judgment. It found that
petitioners were negligent in maintaining a structurally
dangerous counter. The counter was shaped like an inverted
"L" 11 with a top wider than the base. It was top heavy and
the weight of the upper portion was neither evenly distributed
nor supported by its narrow base. Thus, the counter was
defective, unstable and dangerous; a downward pressure on
the overhanging portion or a push from the front could cause
the counter to fall. Two former employees of petitioners had
already previously brought to the attention of the
management the danger the counter could cause. But the
latter ignored their concern. The Court of Appeals faulted the
petitioners for this omission, and concluded that the incident
that befell ZHIENETH could have been avoided had petitioners
repaired the defective counter. It was inconsequential that the
counter had been in use for some time without a prior
incident.
The Court of Appeals declared that ZHIENETH, who was below
seven (7) years old at the time of the incident, was absolutely
incapable of negligence or other tort. It reasoned that since a
child under nine (9) years could not be held liable even for an
intentional wrong, then the six-year old ZHIENETH could not
be made to account for a mere mischief or reckless act. It also
absolved CRISELDA of any negligence, finding nothing wrong
or out of the ordinary in momentarily allowing ZHIENETH to
walk while she signed the document at the nearby counter.
The Court of Appeals also rejected the testimonies of the
witnesses of petitioners. It found them biased and prejudiced.
It instead gave credit to the testimony of disinterested
witness Gonzales. The Court of Appeals then awarded
P99,420.86 as actual damages, the amount representing the
hospitalization expenses incurred by private respondents as
evidenced by the hospital's statement of account. 12 It
denied an award for funeral expenses for lack of proof to
substantiate the same. Instead, a compensatory damage of
P50,000 was awarded for the death of ZHIENETH.
We quote the dispositive portion of the assailed
decision, 13 thus:
WHEREFORE, premises considered, the judgment of the lower
court is SET ASIDE and another one is entered against
[petitioners], ordering them to pay jointly and severally unto
[private respondents] the following:
56
1. P50,000.00 by way of compensatory damages for the death of
Zhieneth Aguilar, with legal interest (6% p.a.) from 27 April
1984;
2. P99,420.86 as reimbursement for hospitalization expenses
incurred; with legal interest (6% p.a.) from 27 April 1984;
3. P100,000.00 as moral and exemplary damages;
4. P20,000.00 in the concept of attorney's fees; and
5. Costs.
Private respondents sought a reconsideration of the decision but
the same was denied in the Court of Appeals' resolution 14 of 16
July 1997.
Petitioners now seek the reversal of the Court of Appeals'
decision and the reinstatement of the judgment of the trial
court. Petitioners primarily argue that the Court of Appeals erred
in disregarding the factual findings and conclusions of the trial
court. They stress that since the action was based on tort, any
finding of negligence on the part of the private respondents
would necessarily negate their claim for damages, where said
negligence was the proximate cause of the injury sustained. The
injury in the instant case was the death of ZHIENETH. The
proximate cause was ZHIENETH's act of clinging to the counter.
This act in turn caused the counter to fall on her. This and
CRISELDA's contributory negligence, through her failure to
provide the proper care and attention to her child while inside
the store, nullified private respondents' claim for damages. It is
also for these reasons that parents are made accountable for the
damage or injury inflicted on others by their minor children.
Under these circumstances, petitioners could not be held
responsible for the accident that befell ZHIENETH.
Petitioners also assail the credibility of Gonzales who was
already separated from Syvel's at the time he testified; hence,
his testimony might have been tarnished by ill-feelings against
them.
For their part, private respondents principally reiterated their
arguments that neither ZHIENETH nor CRISELDA was negligent
at any time while inside the store; the findings and conclusions
of the Court of Appeals are substantiated by the evidence on
record; the testimony of Gonzales, who heard ZHIENETH
comment on the incident while she was in the hospital's
emergency room should receive credence; and finally,
ZHIENETH's part of the res gestae declaration "that she did
nothing to cause the heavy structure to fall on her" should be
considered as the correct version of the gruesome events.
We deny the petition.
The two issues to be resolved are: (1) whether the death of
ZHIENETH was accidental or attributable to negligence; and
(2) in case of a finding of negligence, whether the same was
attributable to private respondents for maintaining a
defective counter or to CRISELDA and ZHIENETH for failing to
exercise due and reasonable care while inside the store
premises.
An accident pertains to an unforeseen event in which no fault
or negligence attaches to the defendant. 15 It is "a fortuitous
circumstance, event or happening; an event happening
without any human agency, or if happening wholly or partly
through human agency, an event which under the
circumstances is unusual or unexpected by the person to
whom it happens." 16
On the other hand, negligence is the omission to do
something which a reasonable man, guided by those
considerations which ordinarily regulate the conduct of
human affairs, would do, or the doing of something which a
prudent and reasonable man would not do. 17 Negligence is
"the failure to observe, for the protection of the interest of
another person, that degree of care, precaution and vigilance
which the circumstances justly demand, whereby such other
person suffers injury." 18
Accident and negligence are intrinsically contradictory; one
cannot exist with the other. Accident occurs when the person
concerned is exercising ordinary care, which is not caused by
fault of any person and which could not have been prevented
by any means suggested by common prudence. 19
The test in determining the existence of negligence is
enunciated in the landmark case of Plicart v. Smith, 20 thus:
Did the defendant in doing the alleged negligent act use that
reasonable care and caution which an ordinarily prudent
57
person would have used in the same situation? If not, then he is
guilty of negligence. 21
We rule that the tragedy which befell ZHIENETH was no accident
and that ZHIENETH's death could only be attributed to
negligence.
We quote the testimony of Gerardo Gonzales who was at the
scene of the incident and accompanied CRISELDA and ZHIENETH
to the hospital:
Q While at the Makati Medical Center, did you hear or notice
anything while the child was being treated?
A At the emergency room we were all surrounding the child. And
when the doctor asked the child "what did you do," the child said
"nothing, I did not come near the counter and the counter just
fell on me."
Q (COURT TO ATTY. BELTRAN)
You want the words in Tagalog to be translated?
ATTY. BELTRAN
Yes, your Honor.
COURT
Granted. Intercalate "wala po, hindi po ako lumapit doon. Basta
bumagsak." 22
This testimony of Gonzales pertaining to ZHIENETH's statement
formed (and should be admitted as) part of the res gestae under
Section 42, Rule 130 of the Rules of Court, thus:
Part of res gestae. Statements made by a person while a
startling occurrence is taking place or immediately prior or
subsequent thereto with respect to the circumstances thereof,
may be given in evidence as part of the res gestae. So, also,
statements accompanying an equivocal act material to the
issue, and giving it a legal significance, may be received as part
of the res gestae.
It is axiomatic that matters relating to declarations of pain or
suffering and statements made to a physician are generally
considered declarations and admissions. 23 All that is required
for their admissibility as part of the res gestaeis that they be
made or uttered under the influence of a startling event before
the declarant had the time to think and concoct a falsehood
as witnessed by the person who testified in court. Under the
circumstances thus described, it is unthinkable for ZHIENETH,
a child of such tender age and in extreme pain, to have lied to
a doctor whom she trusted with her life. We therefore accord
credence to Gonzales' testimony on the matter, i.e.,
ZHIENETH performed no act that facilitated her tragic death.
Sadly, petitioners did, through their negligence or omission to
secure or make stable the counter's base.
Gonzales' earlier testimony on petitioners' insistence to keep
and maintain the structurally unstable gift-wrapping counter
proved their negligence, thus:
Q When you assumed the position as gift wrapper at the
second floor, will you please describe the gift wrapping
counter, were you able to examine?
A Because every morning before I start working I used to
clean that counter and since not nailed and it was only
standing on the floor, it was shaky.
xxx xxx xxx
Q Will you please describe the counter at 5:00 o'clock [sic] in
the afternoon on [sic] May 9 1983?
A At that hour on May 9, 1983, that counter was standing
beside the verification counter. And since the top of it was
heavy and considering that it was not nailed, it can collapse
at anytime, since the top is heavy.
xxx xxx xxx
Q And what did you do?
A I informed Mr. Maat about that counter which is [sic] shaky
and since Mr. Maat is fond of putting display decorations on
tables, he even told me that I would put some decorations.
But since I told him that it not [sic] nailed and it is shaky he
told me "better inform also the company about it." And since
the company did not do anything about the counter, so I also
did not do anything about the counter. 24 [Emphasis
supplied]
Ramon Guevarra, another former employee, corroborated the
testimony of Gonzales, thus:
58
Q Will you please described [sic] to the honorable Court the
counter where you were assigned in January 1983?
xxx xxx xxx
A That counter assigned to me was when my supervisor ordered
me to carry that counter to another place. I told him that the
counter needs nailing and it has to be nailed because it might
cause injury or accident to another since it was shaky.
Q When that gift wrapping counter was transferred at the
second floor on February 12, 1983, will you please describe that
to the honorable Court?
A I told her that the counter wrapper [sic] is really in good [sic]
condition; it was shaky. I told her that we had to nail it.
Q When you said she, to whom are you referring to [sic]?
A I am referring to Ms. Panelo, sir.
Q And what was the answer of Ms. Panelo when you told her that
the counter was shaky?
A She told me "Why do you have to teach me. You are only my
subordinate and you are to teach me?" And she even got angry
at me when I told her that.
xxx xxx xxx
Q From February 12, 1983 up to May 9, 1983, what if any, did
Ms. Panelo or any employee of the management do to that (sic)
xxx xxx xxx
Witness:
None, sir. They never nailed the counter. They only nailed the
counter after the accident happened. 25 [Emphasis supplied]
Without doubt, petitioner Panelo and another store supervisor
were personally informed of the danger posed by the unstable
counter. Yet, neither initiated any concrete action to remedy the
situation nor ensure the safety of the store's employees and
patrons as a reasonable and ordinary prudent man would have
done. Thus, as confronted by the situation petitioners miserably
failed to discharge the due diligence required of a good father of
a family.
On the issue of the credibility of Gonzales and Guevarra,
petitioners failed to establish that the former's testimonies
were biased and tainted with partiality. Therefore, the
allegation that Gonzales and Guevarra's testimonies were
blemished by "ill feelings" against petitioners since they
(Gonzales and Guevarra) were already separated from the
company at the time their testimonies were offered in court
was but mere speculation and deserved scant consideration.
It is settled that when the issue concerns the credibility of
witnesses, the appellate courts will not as a general rule
disturb the findings of the trial court, which is in a better
position to determine the same. The trial court has the
distinct advantage of actually hearing the testimony of and
observing the deportment of the witnesses. 26However, the
rule admits of exceptions such as when its evaluation was
reached arbitrarily or it overlooked or failed to appreciate
some facts or circumstances of weight and substance which
could affect the result of the case. 27 In the instant case,
petitioners failed to bring their claim within the exception.
Anent the negligence imputed to ZHIENETH, we apply the
conclusive presumption that favors children below nine (9)
years old in that they are incapable of contributory
negligence. In his book, 28 former Judge Cezar S. Sangco
stated:
In our jurisdiction, a person under nine years of age is
conclusively presumed to have acted without discernment,
and is, on that account, exempt from criminal liability. The
same presumption and a like exemption from criminal liability
obtains in a case of a person over nine and under fifteen
years of age, unless it is shown that he has acted with
discernment. Since negligence may be a felony and a quasi-
delict and required discernment as a condition of liability,
either criminal or civil, a child under nine years of age is, by
analogy, conclusively presumed to be incapable of
negligence; and that the presumption of lack of discernment
or incapacity for negligence in the case of a child over nine
but under fifteen years of age is a rebuttable one, under our
law. The rule, therefore, is that a child under nine years of age
must be conclusively presumed incapable of contributory
negligence as a matter of law. [Emphasis supplied]
59
Even if we attribute contributory negligence to ZHIENETH and
assume that she climbed over the counter, no injury should have
occurred if we accept petitioners' theory that the counter was
stable and sturdy. For if that was the truth, a frail six-year old
could not have caused the counter to collapse. The physical
analysis of the counter by both the trial court and Court of
Appeals and a scrutiny of the evidence 29 on record reveal
otherwise, i.e., it was not durable after all. Shaped like an
inverted "L," the counter was heavy, huge, and its top laden with
formica. It protruded towards the customer waiting area and its
base was not secured. 30
CRISELDA too, should be absolved from any contributory
negligence. Initially, ZHIENETH held on to CRISELDA's waist,
later to the latter's hand. 31 CRISELDA momentarily released
the child's hand from her clutch when she signed her credit card
slip. At this precise moment, it was reasonable and usual for
CRISELDA to let go of her child. Further, at the time ZHIENETH
was pinned down by the counter, she was just a foot away from
her mother; and the gift-wrapping counter was just four meters
away from CRISELDA. 32 The time and distance were both
significant. ZHIENETH was near her mother and did not loiter as
petitioners would want to impress upon us. She even admitted
to the doctor who treated her at the hospital that she did not do
anything; the counter just fell on her.
WHEREFORE, in view of all the foregoing, the instant petition is
DENIED and the challenged decision of the Court of Appeals of
17 June 1996 in C.A. G.R. No. CV 37937 is hereby AFFIRMED.
Costs against petitioners.
SO ORDERED.
Puno, Kapunan, Pardo and Ynares-Santiago, JJ., concur.

60

Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-7664 August 29, 1958
MR. AND MRS. AMADOR C. ONG, plaintiffs-appellants,
vs.
METROPOLITAN WATER DISTRICT, defendant-appellee.
Tomas Tria Tirona for appellants.
Government Corporate Counsel Ambrosio Padilla and Juan C.
Jimenez for appellee.
BAUTISTA ANGELO, J.:
Plaintiffs spouses seek to recover from defendant, a
government-owned corporation, the sum of P50,000 as
damages, P5,000 as funeral expenses, and P11,000 as
attorneys' fees, for the death of their son Dominador Ong in one
of the swimming pools operated by defendant.
Defendant admits the fact that plaintiffs' son was drowned in
one of its swimming pools but avers that his death was caused
by his own negligence or by unavoidable accident. Defendant
also avers that it had exercised due diligence in the selection of,
and supervision over, its employees and that it had observed
the diligence required by law under the circumstances.
After trial, the lower court found that the action of plaintiffs is
untenable and dismissed the complaint without pronouncement
as to costs. Plaintiffs took the case on appeal directly to this
Court because the amount involved exceeds the sum of
P50,000.
Defendant owns and operates three recreational swimming
pools at its Balara filters, Diliman, Quezon City, to which people
are invited and for which a nominal fee of P0.50 for adults and
P0.20 for children is charged. The main pool it between two
small pools of oval shape known as the "Wading pool" and the
"Beginners Pool." There are diving boards in the big pools and
the depths of the water at different parts are indicated by
appropriate marks on the wall. The care and supervision of the
pools and the users thereof is entrusted to a recreational
section composed of Simeon Chongco as chief, Armando Rule,
a male nurse, and six lifeguards who had taken the life-saving
course given by the Philippine Red Cross at the YMCA in
Manila. For the safety of its patrons, defendant has provided
the pools with a ring buoy, toy roof, towing line, saving kit and
a resuscitator. There is also a sanitary inspector who is in
charge of a clinic established for the benefit of the patrons.
Defendant has also on display in a conspicuous place certain
rules and regulations governing the use of the pools, one of
which prohibits the swimming in the pool alone or without any
attendant. Although defendant does not maintain a full-time
physician in the swimming pool compound, it has however a
nurse and a sanitary inspector ready to administer injections
or operate the oxygen resuscitator if the need should arise.
In the afternoon of July 5, 1952, at about 1:00 o'clock,
Dominador Ong, a 14-year old high school student and boy
scout, and his brothers Ruben and Eusebio, went to
defendant's swimming pools. This was not the first time that
the three brothers had gone to said natatorium for they had
already been there four or five times before. They arrived at
the natatorium at about 1:45 p.m. After paying the requisite
admission fee, they immediately went to one of the small
pools where the water was shallow. At about 4:35 p.m.,
Dominador Ong told his brothers that he was going to the
locker room in an adjoining building to drink a bottle of coke.
Upon hearing this, Ruben and Eusebio went to the bigger pool
leaving Dominador in the small pool and so they did not see
the latter when he left the pool to get a bottle of coke. In that
afternoon, there were two lifeguards on duty in the pool
compound, namely, Manuel Abao and Mario Villanueva. The
tour of duty of Abao was from 8:00 to 12:00 in the morning
and from 2:00 to 6:00 in the afternoon, and of Villanueva from
7:30 to 11:30 a.m. and from 12:30 to 4:30 p.m. Between 4:00
to 5:00 that afternoon, there were about twenty bathers
inside the pool area and Manuel Abao was going around the
pools to observe the bathers in compliance with the
instructions of his chief.
Between 4:40 to 4:45 p.m., some boys who were in the pool
area informed a bather by the name of Andres Hagad, Jr., that
somebody was swimming under water for quite a long time.
61
Another boy informed lifeguard Manuel Abao of the same
happening and Abao immediately jumped into the big
swimming pool and retrieved the apparently lifeless body of
Dominador Ong from the bottom. The body was placed at the
edge of the pool and Abao immediately applied manual
artificial respiration. Soon after, male nurse Armando Rule came
to render assistance, followed by sanitary inspector Iluminado
Vicente who, after being called by phone from the clinic by one
of the security guards, boarded a jeep carrying with him the
resuscitator and a medicine kit, and upon arriving he injected
the boy with camphorated oil. After the injection, Vicente left on
a jeep in order to fetch Dr. Ayuyao from the University of the
Philippines. Meanwhile, Abao continued the artificial manual
respiration, and when this failed to revive him, they applied the
resuscitator until the two oxygen tanks were exhausted. Not
long thereafter, Dr. Ayuyao arrived with another resuscitator, but
the same became of no use because he found the boy already
dead. The doctor ordered that the body be taken to the clinic.
In the evening of the same day, July 5, 1952, the incident was
investigated by the Police Department of Quezon City and in the
investigation boys Ruben Ong and Andres Hagad, Jr. gave
written statements. On the following day, July 6, 1952, an
autopsy was performed by Dr. Enrique V. de los Santos, Chief,
Medico Legal Division, National Bureau of Investigation, who
found in the body of the deceased the following: an abrasion on
the right elbow lateral aspect; contusion on the right forehead;
hematoma on the scalp, frontal region, right side; a congestion
in the brain with petechial subcortical hemorrhage, frontal lobe;
cyanosis on the face and on the nails; the lung was soggy with
fine froth in the bronchioles; dark fluid blood in the heart;
congestion in the visceral organs, and brownish fluid in the
stomach. The death was due to asphyxia by submersion in
water.
The issue posed in this appeal is whether the death of minor
Dominador Ong can be attributed to the negligence of
defendant and/or its employees so as to entitle plaintiffs to
recover damages.
The present action is governed by Article 2176 in relation to
Article 2080 of the new Civil Code. The first article provides that
"whoever by act or omission causes damage to another, there
being fault or negligence, is obliged to pay for the damages
done." Such fault or negligence is called quasi-delict. Under
the second article, this obligation is demandable not only for
one's own acts or omissions but also for those of persons for
whom one is responsible. In addition, we may quote the
following authorities cited in the decision of the trial court:
"The rule is well settled that the owners of resorts to which
people generally are expressly or by implication invited are
legally bound to exercise ordinary care and prudence in the
management and maintenance of such resorts, to the end of
making them reasonably safe for visitors" (Larkin vs. Saltair
Beach Co., 30 Utah 86, 83 Pac. 686).
"Although the proprietor of a natatorium is liable for injuries
to a patron, resulting from lack of ordinary care in providing
for his safety, without the fault of the patron, he is not,
however, in any sense deemed to be the insurer of the safety
of patrons. And the death of a patron within his premises does
not cast upon him the burden of excusing himself from any
presumption of negligence" (Bertalot vs. Kinnare. 72 Ill. App.
52, 22 A. L. R. 635; Flora vs. Bimini Water Co., 161 Cal. 495,
119 Pac. 661). Thus in Bertalot vs. Kinnare, supra, it was held
that there could be no recovery for the death by drowning of
a fifteen-year boy in defendant's natatorium, where it
appeared merely that he was lastly seen alive in water at the
shallow end of the pool, and some ten or fifteen minutes later
was discovered unconscious, and perhaps lifeless, at the
bottom of the pool, all efforts to resuscitate him being without
avail.
Since the present action is one for damages founded on
culpable negligence, the principle to be observed is that the
person claiming damages has the burden of proving that the
damage is caused by the fault or negligence of the person
from whom the damage is claimed, or of one of his employees
(Walter A. Smith & Co. vs. Cadwallader Gibson Lumber Co., 55
Phil., 517). The question then that arises is: Have appellants
established by sufficient evidence the existence of fault or
negligence on the part of appellee so as to render it liable for
damages for the death of Dominador Ong?
There is no question that appellants had striven to prove that
appellee failed to take the necessary precaution to protect the
62
lives of its patrons by not placing at the swimming pools efficient
and competent employees who may render help at a moment's
notice, and they ascribed such negligence to appellee because
the lifeguard it had on the occasion minor Ong was drowning
was not available or was attending to something else with the
result that his help came late. Thus, appellants tried to prove
through the testimony of Andres Hagad, Jr. and Ruben Ong that
when Eusebio Ong and Hagad, Jr. detected that there was a
drowning person in the bottom of the big swimming pool and
shouted to the lifeguard for help, lifeguard Manuel Abao did not
immediately respond to the alarm and it was only upon the third
call that he threw away the magazine he was reading and
allowed three or four minutes to elapse before retrieving the
body from the water. This negligence of Abao, they contend, is
attributable to appellee.
But the claim of these two witnesses not only was vehemently
denied by lifeguard Abao, but is belied by the written
statements given by them in the investigation conducted by the
Police Department of Quezon City approximately three hours
after the happening of the accident. Thus, these two boys
admitted in the investigation that they narrated in their
statements everything they knew of the accident, but, as found
by the trial, nowhere in said statements do they state that the
lifeguard was chatting with the security guard at the gate of the
swimming pool or was reading a comic magazine when the
alarm was given for which reason he failed to immediately
respond to the alarm. On the contrary, what Ruben Ong
particularly emphasized therein was that after the lifeguard
heard the shouts for help, the latter immediately dived into the
pool to retrieve the person under water who turned out to be his
brother. For this reason, the trial court made this conclusion:
"The testimony of Ruben Ong and Andres Hagad, Jr. as to the
alleged failure of the lifeguard Abao to immediately respond to
their call may therefore be disregarded because they are belied
by their written statements. (Emphasis supplied.)
On the other hand, there is sufficient evidence to show that
appellee has taken all necessary precautions to avoid danger to
the lives of its patrons or prevent accident which may cause
their death. Thus, it has been shown that the swimming pools of
appellee are provided with a ring buoy, toy roof, towing line,
oxygen resuscitator and a first aid medicine kit. The bottom of
the pools is painted with black colors so as to insure clear
visibility. There is on display in a conspicuous place within the
area certain rules and regulations governing the use of the
pools. Appellee employs six lifeguards who are all trained as
they had taken a course for that purpose and were issued
certificates of proficiency. These lifeguards work on schedule
prepared by their chief and arranged in such a way as to have
two guards at a time on duty to look after the safety of the
bathers. There is a male nurse and a sanitary inspector with a
clinic provided with oxygen resuscitator. And there are
security guards who are available always in case of
emergency.
The record also shows that when the body of minor Ong was
retrieved from the bottom of the pool, the employees of
appellee did everything possible to bring him back to life.
Thus, after he was placed at the edge of the pool, lifeguard
Abao immediately gave him manual artificial respiration.
Soon thereafter, nurse Armando Rule arrived, followed by
sanitary inspector Iluminado Vicente who brought with him an
oxygen resuscitator. When they found that the pulse of the
boy was abnormal, the inspector immediately injected him
with camphorated oil. When the manual artificial respiration
proved ineffective they applied the oxygen resuscitator until
its contents were exhausted. And while all these efforts were
being made, they sent for Dr. Ayuyao from the University of
the Philippines who however came late because upon
examining the body he found him to be already dead. All of
the foregoing shows that appellee has done what is humanly
possible under the circumstances to restore life to minor Ong
and for that reason it is unfair to hold it liable for his death.
Sensing that their former theory as regards the liability of
appellee may not be of much help, appellants now switch to
the theory that even if it be assumed that the deceased is
partly to be blamed for the unfortunate incident, still appellee
may be held liable under the doctrine of "last clear chance"
for the reason that, having the last opportunity to save the
victim, it failed to do so.
We do not see how this doctrine may apply considering that
the record does not show how minor Ong came into the big
swimming pool. The only thing the record discloses is that
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minor Ong informed his elder brothers that he was going to the the peril is or should have been discovered; at least in cases
locker room to drink a bottle of coke but that from that time on in which any previous negligence of the party charged cannot
nobody knew what happened to him until his lifeless body was be said to have contributed to the injury. O'Mally vs. Eagan,
retrieved. The doctrine of last clear chance simply means that 77 ALR 582, 43 Wyo. 233, 350, 2, P2d 1063. (A.L.R. Digest,
the negligence of a claimant does not preclude a recovery for Vol. 8, pp. 955-956)
the negligence of defendant where it appears that the latter, by
Before closing, we wish to quote the following observation of
exercising reasonable care and prudence, might have avoided
the trial court, which we find supported by the evidence:
injurious consequences to claimant notwithstanding his
"There is (also) a strong suggestion coming from the expert
negligence. Or, "As the doctrine usually is stated, a person who
evidence presented by both parties that Dominador Ong
has the last clear chance or opportunity of avoiding an accident,
might have dived where the water was only 5.5 feet deep,
notwithstanding the negligent acts of his opponent or the
and in so doing he might have hit or bumped his forehead
negligence of a third person which is imputed to his opponent, is
against the bottom of the pool, as a consequence of which he
considered in law solely responsible for the consequences of the
was stunned, and which to his drowning. As a boy scout he
accident." (38 Am. Jur. pp. 900-902)
must have received instructions in swimming. He knew, or
It goes without saying that the plaintiff himself was not free from have known that it was dangerous for him to dive in that part
fault, for he was guilty of antecedent negligence in planting of the pool."
himself in the wrong side of the road. But as we have already
Wherefore, the decision appealed from being in accordance
stated, the defendant was also negligent; and in such case the
with law and the evidence, we hereby affirm the same,
problem always is to discover which agent is immediately and
without pronouncement as to costs.
directly responsible. It will be noted that the negligent acts of
the two parties were not contemporaneous, since the negligence Paras, C. J., Bengzon, Padilla, Montemayor, Reyes, A.,
of the defendant succeeded the negligence of the plaintiff by an Concepcion, Reyes, J. B. L., Endencia and Felix, JJ.,concur.
appreciable interval. Under these circumstances, the law is that
a person who has the last clear 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.
(Picart vs. Smith, 37 Phil., 809)
Since it is not known how minor Ong came into the big
swimming pool and it being apparent that he went there without
any companion in violation of one of the regulations of appellee
as regards the use of the pools, and it appearing that lifeguard
Aba__o responded to the call for help as soon as his attention
was called to it and immediately after retrieving the body all
efforts at the disposal of appellee had been put into play in order
to bring him back to life, it is clear that there is no room for the
application of the doctrine now invoked by appellants to impute
liability to appellee..
The last clear chance doctrine can never apply where the party
charged is required to act instantaneously, and if the injury
cannot be avoided by the application of all means at hand after

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