Republic of the Philippines

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. As to Barredo's responsibility, the Court of Appeals found:

... It is admitted that defendant is Fontanilla's employer. There is proof that he exercised the
diligence of a good father of a family to prevent damage. (See p. 22, appellant's brief.) In fact
it is shown he was careless in employing Fontanilla who had been caught several times for
violation of the Automobile Law and speeding (Exhibit A) violation which appeared in the
records of the Bureau of Public Works available to be public and to himself. Therefore, he
must indemnify plaintiffs under the provisions of article 1903 of the Civil Code.

The main theory of the defense is that the liability of Fausto Barredo is governed by the Revised
Penal Code; hence, his liability is only subsidiary, and as there has been no civil action against
Pedro Fontanilla, the person criminally liable, Barredo cannot be held responsible in the case. The
petitioner's brief states on page 10:

... The Court of Appeals holds that the petitioner is being sued for his failure to exercise all
the diligence of a good father of a family in the selection and supervision of Pedro Fontanilla
to prevent damages suffered by the respondents. In other words, The Court of Appeals
insists on applying in the case article 1903 of the Civil Code. Article 1903 of the Civil Code is
found in Chapter II, Title 16, Book IV of the Civil Code. This fact makes said article to a civil
liability arising from a crime as in the case at bar simply because Chapter II of Title 16 of
Book IV of the Civil Code, in the precise words of article 1903 of the Civil Code itself, is
 applicable only to "those (obligations) arising from wrongful or negligent acts or commission
not punishable by law.

The gist of the decision of the Court of Appeals is expressed thus:

... We cannot agree to the defendant's contention. The liability sought to be imposed upon
him in this action is not a civil obligation arising from a felony or a misdemeanor (the crime of
Pedro Fontanilla,), but an obligation imposed in article 1903 of the Civil Code by reason of
his negligence in the selection or supervision of his servant or employee.

The pivotal question in this case is whether the plaintiffs may bring this separate civil action against
Fausto Barredo, thus making him primarily and directly, responsible under article 1903 of the Civil
Code as an employer of Pedro Fontanilla. The defendant maintains that Fontanilla's negligence
being punishable by the Penal Code, his (defendant's) liability as an employer is only subsidiary,
according to said Penal code, but Fontanilla has not been sued in a civil action and his property has
not been exhausted. To decide the main issue, we must cut through the tangle that has, in the minds
of many confused and jumbled together delitos and cuasi delitos, or crimes under the Penal Code
and fault or negligence under articles 1902-1910 of the Civil Code. This should be done, because
justice may be lost in a labyrinth, unless principles and remedies are distinctly envisaged.
Fortunately, we are aided in our inquiry by the luminous presentation of the perplexing subject by
renown jurists and we are likewise guided by the decisions of this Court in previous cases as well as
by the solemn clarity of the consideration in several sentences of the Supreme Tribunal of Spain.

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

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

CIVIL CODE

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

xxx xxx xxx

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

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

xxx xxx xxx

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

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

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

Guardians are liable for damages done by minors or incapacitated persons subject to their
authority and living with them.
 Owners or directors of an establishment or business are equally liable for any damages
caused by their employees while engaged in the branch of the service in which employed, or
on occasion of the performance of their duties.

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

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

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

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

REVISED PENAL CODE

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

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

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

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

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

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

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

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

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

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

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

xxx xxx xxx

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

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

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

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

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

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

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

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

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

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

El concepto juridico de la responsabilidad civil abarca diversos aspectos y comprende a

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

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

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

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

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

Los articulos 20 y 21 del Codigo Penal, despues de distribuir a su modo las

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

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

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

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

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

Seeing that the title of this obligation is different, and the separation between punitive justice
and the civil courts being a true postulate of our judicial system, so that they have different
fundamental norms in different codes, as well as different modes of procedure, and
inasmuch as the Compaa del Ferrocarril Cantabrico has abstained from taking part in the
criminal case and has reserved the right to exercise its actions, it seems undeniable that the
action for indemnification for the losses and damages caused to it by the collision was
not sub judice before the Tribunal del Jurado, nor was it the subject of a sentence, but it
remained intact when the decision of March 21 was rendered. Even if the verdict had not
been that of acquittal, it has already been shown that such action had been legitimately
reserved till after the criminal prosecution; but because of the declaration of the non-
existence of the felony and the non-existence of the responsibility arising from the crime,
which was the sole subject matter upon which the Tribunal del Juradohad jurisdiction, there
is greater reason for the civil obligation ex lege, and it becomes clearer that the action for its
enforcement remain intact and is not res judicata.

Laurent, a jurist who has written a monumental work on the French Civil Code, on which the Spanish
Civil Code is largely based and whose provisions on cuasi-delito or culpa extra-contractual are
similar to those of the Spanish Civil Code, says, referring to article 1384 of the French Civil Code
which corresponds to article 1903, Spanish Civil Code:

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

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

Cuestion 1. La responsabilidad declarada en el articulo 1903 por las acciones u omisiones

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

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

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

Es decir, no responde de hechos ajenos, porque se responde solo de su propia culpa,

doctrina del articulo 1902; mas por excepcion, se responde de la ajena respecto de aquellas
personas con las que media algun nexo o vinculo, que motiva o razona la responsabilidad.
Esta responsabilidad, es directa o es subsidiaria? En el orden penal, el Codigo de esta clase
distingue entre menores e incapacitados y los demas, declarando directa la primera (articulo
19) y subsidiaria la segunda (articulos 20 y 21); pero en el orden civil, en el caso del articulo
1903, ha de entenderse directa, por el tenor del articulo que impone la responsabilidad
precisamente "por los actos de aquellas personas de quienes se deba responder."

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

xxx xxx xxx

"Owners or directors of an establishment or enterprise are equally liable for the

damages caused by their employees in the service of the branches in which the latter
may be employed or in the performance of their duties.

xxx xxx xxx

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

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

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

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

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

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

If it were true that the defendant, in coming from the southern part of Solana Street, had to
stop his auto before crossing Real Street, because he had met vehicles which were going
along the latter street or were coming from the opposite direction along Solana Street, it is to
be believed that, when he again started to run his auto across said Real Street and to
continue its way along Solana Street northward, he should have adjusted the speed of the
auto which he was operating until he had fully crossed Real Street and had completely
reached a clear way on Solana Street. But, as the child was run over by the auto precisely at
the entrance of Solana Street, this accident could not have occurred if the auto had been
running at a slow speed, aside from the fact that the defendant, at the moment of crossing
Real Street and entering Solana Street, in a northward direction, could have seen the child in
the act of crossing the latter street from the sidewalk on the right to that on the left, and if the
accident had occurred in such a way that after the automobile had run over the body of the
child, and the child's body had already been stretched out on the ground, the automobile still
moved along a distance of about 2 meters, this circumstance shows the fact that the
automobile entered Solana Street from Real Street, at a high speed without the defendant
having blown the horn. If these precautions had been taken by the defendant, the deplorable
accident which caused the death of the child would not have occurred.

It will be noticed that the defendant in the above case could have been prosecuted in a criminal case
because his negligence causing the death of the child was punishable by the Penal Code. Here is
therefore a clear instance of the same act of negligence being a proper subject-matter either of a
criminal action with its consequent civil liability arising from a crime or of an entirely separate and
independent civil action for fault or negligence under article 1902 of the Civil Code. Thus, in this
jurisdiction, the separate individually of a cuasi-delito or culpa 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.

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

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

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

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

Article 1903 of the Civil Code not only establishes liability in cases of negligence, but also
provides when the liability shall cease. It says:

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

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

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

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

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

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

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

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

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

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

Let us now take up the Philippine decisions relied upon by the defendant. We study first, City of
Manila vs. Manila Electric Co., 52 Phil., 586 (year 1928). A collision between a truck of the City of
Manila and a street car of the Manila Electric Co. took place on June 8, 1925. The truck was
damaged in the amount of P1,788.27. Sixto Eustaquio, the motorman, was prosecuted for the crime
of damage to property and slight injuries through reckless imprudence. He was found guilty and
sentenced to pay a fine of P900, to indemnify the City of Manila for P1,788.27, with subsidiary
imprisonment in case of insolvency. Unable to collect the indemnity from Eustaquio, the City of
Manila filed an action against the Manila Electric Company to obtain payment, claiming that the
defendant was subsidiarily liable. The main defense was that the defendant had exercised the
diligence of a good father of a family to prevent the damage. The lower court rendered judgment in
favor of the plaintiff. This Court held, in part, that this case was governed by the Penal Code, saying:

With this preliminary point out of the way, there is no escaping the conclusion that the
provisions of the Penal Code govern. The Penal Code in easily understandable language
authorizes the determination of subsidiary liability. The Civil Code negatives its application by
providing that civil obligations arising from crimes or misdemeanors shall be governed by the
provisions of the Penal Code. The conviction of the motorman was a misdemeanor falling
under article 604 of the Penal Code. The act of the motorman was not a wrongful or
negligent act or omission not punishable by law. Accordingly, the civil obligation connected
 up with the Penal Code and not with article 1903 of the Civil Code. In other words, the Penal
Code affirms its jurisdiction while the Civil Code negatives its jurisdiction. This is a case of
criminal negligence out of which civil liability arises and not a case of civil negligence.

xxx xxx xxx

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Yulo, C.J., Moran, Ozaeta and Paras, JJ., concur.

 Republic of the Philippines
SUPREME COURT
Manila

FIRST DIVISION

G.R. No. L-46179 January 31, 1978

CANDIDA VIRATA, TOMAS VIRATA, MANOLITO VIRATA, EDERLINDA VIRATA, NAPOLEON

VIRATA, ARACELY VIRATA, ZENAIDA VIRATA, LUZMINDA VIRATA, PACITA VIRATA, and
EVANGELINA VIRATA,petitioners,
vs.
VICTORIO OCHOA, MAXIMO BORILLA and THE COURT OF FIRST INSTANCE OF CAVITE, 7th
JUDICIAL DISTRICT, BRANCH V, stationed at BACOOR, CAVITE, respondents.

Remulla, Estrella & Associates for petitioners

Exequil C. Masangkay for respondents.

FERNANDEZ, J.:

This is an appeal by certiorari, from the order of the Court of First Instance of Cavite, Branch V, in
Civil Case No. B-134 granting the motion of the defendants to dismiss the complaint on the ground
that there is another action pending between the same parties for the same cause. 1

The record shows that on September 24, 1975 one Arsenio Virata died as a result of having been
bumped while walking along Taft Avenue, Pasay City by a passenger jeepney driven by Maximo
Borilla and registered in the name Of Victoria Ochoa; that Borilla is the employer of Ochoa; that for
the death of Arsenio Virata, a action for homicide through reckless imprudence was instituted on
September 25, 1975 against Maximo Borilla in the Court of First Instance of Rizal at Pasay City,
docketed as C Case No. 3162-P of said court; that at the hearing of the said criminal case on
December 12, 1975, Atty. Julio Francisco, the private prosecutor, made a reservation to file a
separate civil action for damages against the driver on his criminal liability; that on February 19,
1976 Atty. Julio Francisco filed a motion in said c case to withdraw the reservation to file a separate
civil action; that thereafter, the private prosecutor actively participated in the trial and presented
evidence on the damages; that on June 29, 1976 the heirs of Arsenio Virata again reserved their
right to institute a separate civil action; that on July 19, 1977 the heirs of Arsenio Virata, petitioners
herein, commenced Civil No. B-134 in the Court of First Instance of Cavite at Bacoor, Branch V, for
damages based on quasi-delict against the driver Maximo Borilla and the registered owner of the
jeepney, Victorio Ochoa; that on August 13, 1976 the defendants, private respondents filed a motion
to dismiss on the ground that there is another action, Criminal Case No. 3162-P, pending between
the same parties for the same cause; that on September 8, 1976 the Court of First Instance of Rizal
at Pasay City a decision in Criminal Case No. 3612-P acquitting the accused Maximo Borilla on the
ground that he caused an injury by name accident; and that on January 31, 1977, the Court of First
Instance of Cavite at Bacoor granted the motion to Civil Case No. B-134 for damages. 2

The principal issue is weather or not the of the Arsenio Virata, can prosecute an action for the
damages based on quasi-delict against Maximo Borilla and Victoria Ochoa, driver and owner,
respectively on the passenger jeepney that bumped Arsenio Virata.

It is settled that in negligence cases the aggrieved parties may choose between an action under the
Revised Penal Code or of quasi-delict under Article 2176 of the Civil Code of the Philippines. What is
prohibited by Article 2177 of the Civil Code of the Philippines is to recover twice for the same
negligent act.
The Supreme Court has held that:

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

Although, again, this Article 2177 does seem to literally refer to only acts of
negligence, the same argument of Justice Bocobo about construction that upholds
'the spirit that given life' rather than that which is literal that killeth the intent of the
lawmaker should be observed in applying the same. And considering that the
preliminary chapter on human relations of the new Civil Code definitely establishes
the separability and independence of liability in a civil action for acts criminal in
character (under Articles 29 to 32) from the civil responsibility arising from crime fixed
by Article 100 of the Penal Code, and, in a sense, the Rules of Court, under Sections
2 and 3(c), Rule 111, contemplate also the same separability, it is 'more congruent'
with the spirit of law, equity and justice, and more in harmony with modern progress',
to borrow the felicitous language in Rakes vs. Atlantic Gulf and Pacific Co., 7 Phil. to
359, to hod as We do hold, that Article 2176, where it refers to 'fault covers not only
acts 'not punishable by law' but also criminal in character, whether intentional and
voluntary or consequently, a separate civil action lies against the in a criminal act,
whether or not he is criminally prosecuted and found guilty and 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 refereed to in Par. (c) of Section 13, Rule
111, refers exclusively to civil liability founded on Article 100 of the Revised Penal
Code, whereas the civil liability for the same act considered as a quasi-delict only
and not as a crime is not 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. Brief stated, We hold, in reitration of Garcia, that culpa aquilina includes
voluntary and negligent acts which may be punishable by law. 3

The petitioners are not seeking to recover twice for the same negligent act. Before Criminal Case
No. 3162-P was decided, they manifested in said criminal case that they were filing a separate civil
action for damages against the owner and driver of the passenger jeepney based on quasi-
delict. The acquittal of the driver, Maximo Borilla, of the crime charged in Criminal Case No. 3162-P
is not a bar to the prosecution of Civil Case No. B-134 for damages based on quasi-delict The
source of the obligation sought to be enforced in Civil Case No. B-134 isquasi-delict, not an act or
omission punishable by law. Under Article 1157 of the Civil Code of the Philippines, quasi-delict and
an act or omission punishable by law are two different sources of obligation.

Moreover, for the petitioners to prevail in the action for damages, Civil Case No. B-134, they have
only to establish their cause of action by preponderance of the evidence.

WHEREFORE, the order of dismissal appealed from is hereby set aside and Civil Case No. B-134 is
reinstated and remanded to the lower court for further proceedings, with costs against the private
respondents.
SO ORDERED.

Teehankee (Chairman), Makasiar, Muoz Palma and Guerrero, JJ., concur.

 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-17690 June 14, 1922

YU BIAO SONTUA & CO., plaintiff-appellee,

vs.
MIGUEL J. OSSORIO, defendant-appellant.

Antonio Sanz and Kincaid, Perkins and Kincaid for appellant.

M. H. de Joya for appellee.

ROMUALDEZ, J.:

On the evening of the 13th of March, 1920, a fire broke out on board the motor boat Alfonso when
this boat was in the Pasig River, city of Manila, ready to weigh anchor. A short distance from
the Alfonso the steamer Y. Sontuawas lying alongside moored to the wharf of said river.

The fire in the motor boat Alfonso spread to the steamer Y. Sontua, causing damages to her deck,
according to plaintiff, amounting to P67,400.

The plaintiff, which is a regular partnership and the owner of the steamer Y. Sontua, brought this
action to recover from the defendant, the owner and agent of said motor boat Alfonso, the
aforementioned sum as indemnity for the damages alleged by the plaintiff to have been sustained by
him through the negligence of the agents and employees of the said defendant, which caused the
fire in the aforesaid motor boat Alfonso, wherefrom it spread, and caused said damages to the
steamer Y. Sontua. These damages are specified in the two causes of action set forth in the
complaint, in the first of which are mentioned the appurtenances and parts of the aforesaid vessel
that were destroyed and damaged by the said fire, and for the repair of which the sum of P40,000
was expended. In the second cause of action it is alleged that the plaintiff sustained damages to the
amount of P27,400 for the demurrage and delay in the ordinary voyages of the aforesaid vessel Y.
Sontua. After denying generally and specifically the allegations of the complaint, the defendant
alleges, as special defense, that he has taken no part either directly or indirectly in the acts alleged
in the complaint; that if the plaintiff has sustained any damages, they are not the result of the act
said to have been committed by the agents and employees of the defendant; and are not imputable
to the negligence of the defendant, or any of his agents, employees, or mandatories.

The case having been tried, the court sentenced the defendant to pay the plaintiff the above-
mentioned sum of P67,400, with legal interest thereon from the date of the filing of the complaint,
and the costs.

From the judgment the defendant appeals to this court assigning three errors, to wit: (a) The finding
that the explosion in question was due to the negligence of the persons in charge of the motor
boat Alfonso; (b) the finding that the defendant is liable for the negligence of his agents and
employees; and (c) the awarding of an excessive sum as damages.

With regard to the first error, the following facts are proven: That during the day and night of the
12th, and during the day of the 13th of March 1920, there were loaded in the said motor
boat Alfonso 2,000 cases of petroleum and 8,473 cases of gasoline, of which 5,000 cases of
gasoline and 2,000 of petroleum were placed in the hold of said motor boat, and the balance on
deck; that said loading was done without permission from the customs authorities; that the said
cases were loaded by means of straps supporting 10 or 12 cases at a time; that the said cases of
gasoline and petroleum were placed in the hold about 14 feet from the boiler of the main engine and
about 4 feet from the boiler of the smaller engine; that on the evening of the 13th of March, 1920, the
smaller engine was in operation preparatory to the departure of the motor boat which, at that time,
was getting ready to leave; that the fire in said motor boat burst out with an explosion followed by a
violent expulsion of gasoline and petroleum; that owing to the proximity of the motor boat to the
steamer Y. Sontua, the magnitude of the fire and the inflammability of the material that served as
fuel, the fire spread to the said steamer Y. Sontua, and so rapidly that it was impossible for the crew
of the Y. Sontua to check its progress,

Expert testimony was also introduced by the plaintiff to the effect that it is but natural that, after
several transhipments of more than 8,000 cases of gasoline and 2,000 cases of petroleum there is
bound to be a leakage, on an average of 1 to 4 cases per hundred, due to the fact that the loading is
effected by means of straps supporting from 10 to 12 cases at a time which, quite frequently, receive
violent bumps resulting in damage to the cans and the consequent leakage of either gasoline or
petroleum, as the case may be.

It was also shown by expert testimony that the gases formed by the volatilization of the gasoline or
petroleum leaking from the cases are apt to accumulate in a compartment, such as the hold of a
ship, without sufficient ventilation causing the gases to ignite upon coming in contact with a spark or
upon the temperature being sufficiently raised.

Under these circumstances we are constrained to hold that the fire which caused the damages for
which the plaintiff seeks to be indemnified was the inevitable effect of the explosion and fire which
occurred in the motor boat Alfonso; that this explosion and fire in the said motor boat is, with good
ground, imputable to the negligence of the persons having charge at that time of said motor boat and
under whose direction the loading of the aforesaid cases of petroleum and gasoline had been
performed.

The trial court did not, therefore, commit the first error assigned by the appellant.

In the second assignment of error, the appellant contends that the defendant ought not to be held
liable for the negligence of his agents and employees.

It is proven that the agents and employees, through whose negligence the explosion and fire in
question occurred, were agents, employees, and mandatories of the defendant. Where the vessel is
one of freight, a public concern or public utility, its owner or agent is liable for the tortious acts of his
agents (arts. 587, 613, and 618, Code of Commerce; and arts. 1902, 1903, 1908, Civil Code). This
principle has been repeatedly upheld in various decisions of this court.

The doctrines cited by the appellant in support of his theory have reference to the relations between
principal and agent and his agents and employees; for this reason they cannot be applied in the
present case.

In American law, principles similar to those in force in the Philippines and contained in the Code of
Commerce above cited, are prevailing:

Vessel owner's liability in general. The general liability of a vessel owner extends to losses
by fire arising from other than a natural or other excepted cause, whether occurring on the
ship accidentally, or communicated from another vessel, or from the shore; and the fact that
fire produces the motive power of a boat does not affect the case. Such losses are not within
the exceptions either of act of God, or peril of the sea, except by local custom, unless
proximately caused by one of these events. In jurisdictions where the civil law obtains,
however, it has been held that if property on a steamboat is destroyed by fire, the owners of
the boat are not responsible, if it was being navigated with proper diligence, although the
accident occurred at night. The common law liability extends even to loss by fires caused
entirely by spontaneous combustion of the cargo, without any negligence on the part of
master or crew. (R.C.L., vol. 24, pp. 1324-1325.)
With regard to the allegation that the obligations enumerated in article 612 of our Code of Commerce
are inherent in the master such inherent duties do not limit to the latter the civil liability arising from
their nonfulfillment, but while the master is responsible to the ship agent, the ship agent, in turn, is
responsible to third persons, as is clearly provided in article 618 of said Code, in which express
mention is made, is subsections 5 and 7, of the duties enumerated in the said article 612.

Therefore there is also no ground for holding that the second error assigned by the appellant has
been committed.

The third error is concerned with the amount of the damages sustained by the plaintiff.

It is sufficiently proven that the sum paid by the plaintiff to the Earnshaw Shipyards for the repairs
made to the steamer Y. Sontua, damage to which was caused by the fire in question, amount to
P27,968; that the materials used in said repairs and paid for by the plaintiff are worth P12,139.30. As
to the damages sustained by the plaintiff on account of the delay of the steamer Y. Sontua, the
evidence shows that this steamer was delayed ten days in the Pasig River, waiting for available
space in the shipyard before it was taken to the said repair-shop; that it was not absolutely
necessary that the repair of the damages caused by the fire should be made in the shipyard; that
said vessel was taken to the shipyard for repair of some parts of it not damaged by the fire in
question.

As the evidence does not sufficiently show the time consumed in repairing the actual damage
caused by the said fire, nor the time employed in making the other repairs, and as the damage, if
any, resulting from the ten days' delay in the Pasig River, is remote and, therefore, not chargeable to
the defendant since said delay is in no way imputable to him, we think, in view of all of the
circumstances of the case and taking into consideration the importance of all the repairs, whether by
fire or otherwise, the delay of seventy days, according to the evidence of the plaintiff, chargeable to
the defendant, should be reduced to one-half, or thirty-five days at the rate of P410.84 a day which is
the net profit that the aforesaid steamer Y. Sontua failed to realize as a consequence of said delay.
We find that the damages sustained by the plaintiff by reason of this delay amount to P14,379.40.

The plaintiff further asks that he be awarded, by way of damages, the sum of P4,400 covering
maintenance and salary of the officers and crew of his steamer during the delay aforementioned. We
do not feel that he is entitled to this item for the reason that such expenses have already been taken
into account in determining the net daily profit above referred to. We find that the total sum which the
plaintiff is entitled to recover from the defendant as damages under the facts stated is fifty-four
thousand four hundred eighty-six pesos and seventy centavos (P54,486.70).

The judgment appealed from is hereby modified and the defendant sentenced to pay the plaintiff the
sum of P54,486.70 with costs. So ordered.

Araullo, C.J., Avancea, Villamor, Ostrand and Johns, JJ., concur.

 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-32774 October 14, 1930

BALBINO CUISON, plaintiff-appellant,

vs.
NORTON & HARRISON CO., TELESFORO BINOYA Y ALMINANZA and FRANCISCO BAUTISTA
Y CRUZ,defendants.
NORTON & HARRISON CO., appellee.

Vicente Sotto for appellant.

Gibbs and McDonough for appellee.

MALCOLM, J.:

This is an action brought by the father to recover damages in the amount of P30,000 for the death of
his son, alleged to have been caused by the negligence of the defendant. The answer pleaded the
general issue. The judgment in the Court of First Instance absolved the defendant from the
complaint, without pronouncement as to costs.

A succinct statement of the facts will be first undertaken as follows: On the afternoon of August 9,
1928, Moises Cuison, a boy 7 years of age, the son of the plaintiff, was on his way to the Santa
Mesa School, in the City of Manila, in company with his sister Marciana. As they came near to the
fire station, some large pieces of lumber on a truck which had stopped fell from it pinning the boy
beneath, and causing his almost instant death. The truck in questioned was owned by Antonio Ora.
It was driven by Felix Jose, with Telesforo Binoya as the washing and Francisco Bautista as the
helper, the two latter being youths less than18 years of age. Jose Binoya, and Bautista were
employees of Ora. The truck was rented by Ora to Norton & Harrison Co. On the truck were the
letters "N-H," which were the first letters of the firm name. Ora was in the employ of Norton &
Harrison Co. as a capataz. It was his duty as such employee to direct the loading and transportation
of the lumber. When the accident occurred the lumber had become loosened, and it was to
rearrange it that the truck halted, without, however, there arrangement having been made before the
pieces of lumber had fallen and killed the boy.

Important details were not brought out in the testimony, although it would have been easy to supply
those details. The most important question of fact to determine was the relationship of Ora to Norton
& Harrison Co., whether he was a servant of the company or an independent contractor. In view of
the debatabel facts found in the record, and in view of the propriety of obtaining as much
enlightenment as possible on the main issue, it is deemed advisable to set forth a considerable
portion of Ora's testimony. He testified:

Q. Do you know the truck T-101? A. Yes, sir.

Q. Whose is that truck ? A. Mine.

Q. Showing you this document which I ask to be marked Exhibit 1(certificate of ownership of
a truck ) state what is that document? A.This is the document of my truck.

Q. On August 9,1928, when, according to the complaint, the boy Moises Cuison was killed,
was that truck used? A. Yes, sir.
Q. For Whom? A. For me.

Q. For what kind of work? A. For loading lumber.

Q. Lumber of whom? A. Of Norton & Harrison Co.

Q. Where was the lumber to be taken? A. To Santa Mesa.

Q. What was the agreement between you and Norton & Harrison Co. regarding the
transportation of lumber to Santa Mesa?

xxx xxx xxx

A. The truck carried the lumber which I contracted with Norton & Harrison for transportation
to certain places. I had an agreement with Norton & Harrison to carry and transport lumber
coming from its lumber yard to the place of its destination.

Q. Did you rent the truck to Norton & Harrison monthly or annually? A. By the cubic foot,
depending upon the distance travelled.

Q. Do you know Telesforo Binoya y Alminanza and Francisco Bautista y Cruz? A. Yes, sir.

Q. Had they anything to do with the loading of the lumber of Norton & Harrison on the truck?

xxx xxx xxx

A. The said Bautista and Binoya were not the ones who did the loading on my truck. There
were other persons stronger than these two who did the loading.

Q. What I mean to say is whether Binoya and Bautista, on August 9,1928, when the truck
went to the office of Norton & Harrison to carry lumber to Santa Mesa, had anything to do
with the loading of the lumber on said truck ? A. No, sir.

xxx xxx xxx

Q. In your agreement with Norton & Harrison for the transportation of lumber, who was under
the obligation to load the lumber on the truck?

xxx xxx xxx

A. I have already said that the agreement with Norton & Harrison was to load the lumber on
my truck and take it to its destination.

JUDGE:

Q. But who was to do the loading of the lumber, your men or their men? A. My men.

xxx xxx xxx

Q. You said that you are an employee? A. Yes, sir.

Q. Where are you employed? A. In the firm of Norton & Harrison.

Q. Since when? A. Since 1911.

Q. In what capacity? A. As foreman.

Q. What kind of work do you have? A. Foreman.

Q. Capataz? A. Yes, sir.

Q. And as foreman, are you in charge of paying the wages of the workers? A. No, sir.

Q. Therefore you are the capataz who directs the loading and transportation of lumber? A.
Yes, sir.

Q. Please see Exhibit 1 of the plaintiff and state if truck T-101 is what appears therein? A.
Yes, sir.

Q. Do you admit that the condition of that truck on August 9, 1928, is as it appears in this
photograph? A. yes, sir.

Q. What explanation can you give the court accounting for the sign 'N- H' which appears on
the coach box of the truck? A. The sign 'N-H' appearing there means that the lumber
belongs to Norton & Harrison.

Q. And as a foreman of Norton & Harrison, do you receive any salary? A. Yes, sir.

Q. How much? A. P200.

Q. You said that you entered into a contract with Norton & Harrison, do you have a copy of
that contract? A. No, sir, we had an agreement and not a contract.

Q. Verbal agreement? A. Yes,sir.

xxx xxx xxx

Q. How do you collect the rent of the truck, monthly or daily? A. It depends upon the cargo
and the distance travelled.

Q. Daily? A. If I have loaded three times, then I have three collections.

Q. Do you issue receipts therefor? A. Yes,sir.

Q. Have you any with you? A. I don't have.

Q. Can that truck of yours be rented by anybody? A. No, sir.

Q. Only by Norton & Harrison? A. Only for my work.

Q. Do you have with you any books of account pertaining to the business of your truck? A.
No, sir.

Q. Not even a note? A. I don't have.

Q. Not even the firm of Norton & Harrison? A. They may have because the number of
truck and the total number of board feet appear on every receipt.

Q. As owner of the truck, don't you have any note? A. No, sir.

Q. Is that truck No. T-101 the only one you have? A. I Have some more.

Q. Some more? A. Yes, sir.

 Q. For rent? A. For my own use. 1awph!l.net

Q. For the exclusive use of Norton & Harrison ? A. I have a lime factory, and they are
used for the transportation lime.

Q. But this truck T-101 is exclusively intended to be rented by Norton & Harrison? A. It is
not rented exclusively to Norton & Harrison. I use it in my other contracts to carry cargoes,
and also to carry lime.

Q. For the exclusive use of Norton & Harrison ? A. No, sir, I use it also for the
transportation of lime.

It is evident from the foregoing that Ora was a contractor and an employee at the same time of
Norton & Harrison Co. Reverting now to the law, counsel for neither party has considered it
necessary to assist the court in this regard. However, just as the ascertainment of the facts is
important, so is it important to have before us the applicable law.

The Penal Code makes provisions for the civil liability of persons criminally liable, and establishes
subsidiary liability for persons and corporations engaged in any kind of industry for felonies and
misdemeanors committed by their servants in the discharge of their duties. (Penal Code, arts. 17-
20.) In this instance, recurring to the facts, it should have been mentioned that the two youths,
Binoya and Bautista, pleaded guilty to the crime of homicide through reckless negligence, and were
sentenced accordingly.

The basis of civil law liability is not respondeat superior but the relationship of paterfamilias. This
theory bases the liability of the master ultimately on his own negligece 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. As to Porto Rico, see Acosta vs. Porto Rico Gas Co. [1915], 7 Porto Rico Fed., 475; and
Ortiz vs. Ezquiaga [1918], 10 Porto Rico Fed., 350.) Article 1902 of the Civil Code provides:

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. Article 1903, paragraphs 4 and 7 of the same Code
provides:

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

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

It is well to repeat that under the civil law an employer is only liable for the negligence of his
employees in the discharge of their respective duties. The defense of independent contractor would
be a valid one in the Philippines just as it would be in the United States. Here Ora was a contractor,
but it does not necessarily follow that he was an independent contractor. The reason for this
distinction is that the employer retained the power of directing and controlling the work. The
chauffeur and the two persons on the truck were the employees of Ora, the contractor, but Ora, the
contractor, was an employee of Norton & Harrison Co., charged with the duty of directing the loading
and transportation of the lumber. And it was the negligence in loading the lumber and the use of
minors on the truck which caused the death of the unfortunate boy. On the facts and the law, Ora
was not an independent contractor, but was the servant of the defendant, and for his negligence
defendant was responsible.

Conceding that the record discloses a most unusual state of facts, and conceding that the evidence
is not as ample as it should be, nevertheless on the record as it is and on the law as it is, it is
incumbent on the court to rule that error was committed in the lower court in not awarding the father
of the dead boy damages for the wrongful death of his son. It has been the practice of this court in
cases of death through negligence, in the absence of special proof, to allow the sum of P1,000.
(Manzanares vs. Moreta [1918], 38 Phil., 821; Bernal and Enverso vs. House and Tacloban Electric
& Ice Plant [1930], 54 Phil., 327.) Judgment will be reversed, and in the court of origin another
judgment will issue in favor of the plaintiff and against the defendant for the sum of P1,000. So
ordered, without special finding as to costs in either instance.

Avancea, C.J., Street, Villamor and Romualdez, JJ., concur.

Separate Opinions

VILLA-REAL., J., concurring:

I concur in the result.

I am of the opinion, however, that the case at bar is governed by the provisions of article 20 in
connection with article 17 of the Penal Code and article 1092 of the Civil Code, and not by the
provisions of articles 1902 and 1903 of the latter Code.

Ora was a foreman of the defendants Norton and Harrison for the loading and unloading of their
lumber the falling of which caused the death of the son of the plaintiff Balbino Cuison. As such
foreman, Ora was the agent or employee of Norton and Harrison. In the performance of his duties as
such foreman, he used the services of Francisco Bautista and Telesforo Binoya for the loading and
unloading of said lumber, thus making them his employees in such work, and consequently the
employees of Norton and Harrison through him.

Under the provisions of article 20 of the Penal Code persons and corporations engaged in any kind
of industry are subsidiarily liable for felonies and misdemeanors committed by their employees.
There is in the complaint filed in the present action sufficient allegation that the said Francisco
Bautista and Telesforo Binoya committed the crime of homicide through reckless imprudence in the
handling of the lumber of Norton and Harrison and that they were the employees of said firm. Norton
and Harrison are therefore civilly liable for the crime of homicide through reckless negligence
committed by their said employees, such liability being of subsidiary nature.
G.R. No. L-10073 December 24, 1915
BUTARO YAMADA, Plaintiff-Appellee, vs. THE MANILA RAILROAD CO.,
defendant, and BACHRACH GARAGE & TAXICAB CO., Defendant-
Appellant.

G.R. No. L-10074 December 24, 1915

KENJIRO KARABAYASHI, Plaintiff-Appellee, vs. THE MANILA RAILROAD
CO., defendant, and BACHRACH GARAGE & TAXICAB CO., Defendant-
Appellant.

G.R. No. L-10075 December 24, 1915

TAKUTARU UYEHARA, Plaintiff-Appellee, vs. THE MANILA RAILROAD CO.,
defendant, and BACHRACH GARAGE & TAXICAB CO., Defendant-
Appellant.
D.R. Williams for appellant.
Rohde and Wright for appellees.

MORELAND, J.:
The three cases dealt with in this decision differ in their facts only with
respect to the injury suffered by the respective plaintiffs. The law applicable
to them is the same and, at the request of counsel, they will be decided at
the same time. Plaintiffs claim damages against both the railroad and the
garage company because of injuries suffered by them in a collision between a
train owned by and operated over tracks belonging to the railroad company
and an automobile the property of the Bachrach Garage & Taxicab Co.
On January 2, 1913, the plaintiffs, together with three companions, hired an
automobile from the defendant taxicab company for a trip to Cavite Viejo.
The automobile was secured at a certain price hour and was driven and
controlled by a chauffeur supplied by the taxicab company. The journey to
Cavite Viejo was made without incident but, on the return trip, while crossing
the tracks of defendant railroad company in the barrio of San Juan,
municipality of Cavite Viejo, the automobile was struck by a train and the
plaintiffs injured.
The trial court dismissed the complaint on the merits as to the Manila
Railroad Company and held the defendant taxicab company liable for
damages to the plaintiffs in various amounts. The taxicab company appealed.
It appears from the record, and was found by the trial court, that the driver of
the automobile drove his machine upon the railroad tracks without observing
the precautions which ordinary care and prudence would require, without
reducing speed and without taking any precaution looking to determining
whether there was danger from a train or locomotive. The trial court
accordingly found that the driver was guilty of gross negligence and that said
negligence was the proximate cause of the accident. It also found that the
driver had been, in effect, instructed by the taxicab company to approach
and pass over railroad tracks in the manner and form followed and observed
on the occasion in question, and that, for that reason, the taxicab company
was liable for the damages caused.
Several errors are assigned by the appellant. The first one relates to the
finding of the trial court: "That the driver of the automobile did not slacken
speed, which was fast, upon approaching the railroad crossing, which was
clearly visible and had to be approached on an upward grade, or take any
other precaution to avert accident. ... and I can but conclude that the driver
of the automobile was grossly negligent and careless in not taking such
precaution as would have notified him of the coming of the train. On the
contrary, he proceeded with reckless speed and regardless of possible or
threatened danger. If he had been driving the automobile at a proper rate of
speed for going over railroad crossing he could easily have stopped before
going over the railroad crossing after seeing the train."
The argument of the appellant which is devoted to this findings seems to
admit impliedly at least that the driver of the automobile maintained his rate
of speed as he approached and went upon the railroad crossing; and that he
took no precaution to ascertain the approach of a train.

The appellant contended on the trial and offered evidence to prove that, on
approaching the railroad crossing from the direction in which the automobile
was travelling at the time, the view of the railroad tracks in both directions
was obstructed by bushes and trees growing alongside thereof, and that it
was impossible for a person approaching the crossing even though on guard,
to detect by sight the approach of a train. If that were the case, it was clearly
the duty of the driver to reduce the speed of his car and the noise thereof to
such an extent that he would be able to determine from the unrestricted and
uninterrupted use of all his faculties whether or not a train was near. It is the
law that a person must use ordinary care and prudence in passing over a
railroad crossing. While we are not prepared to lay down any absolute rule as
to what precise acts of precaution are necessary to be done or left undone by
a person who may have need to pass over a railroad crossing, we may say
that it is always incumbent on him to use ordinary care and diligence. What
acts are necessary to constitute such care and diligence must depend on the
circumstances of each particular case. The degree of care differs in different
cases. Greater care is necessary in crossing a road where the cars are
running at a high rate of speed and close together than where they are
running at less speed and remote from one another. But in every case due
care should be exercised. It is very possible that where, on approaching a
crossing, the view of the tracks in both directions is unobstructed for such a
distance as to render it perfectly safe to pass over without the use of any
other faculty than sight, such use alone is sufficient and it is not necessary to
stop or even to slacken speed or listen. On the other hand, where the view of
the tracks is obstructed, them it is driver's duty to slacken speed, to reduce
the noise, if any, of the vehicle, to look and to listen, if necessary, or do any
other act necessary to determine that a train is not in dangerous proximity to
the crossing.

In the case at bar the appellant's own showing is to the effect that the view of
the track in the direction from which the train was coming was obstructed in
such manner that neither the track nor a train could be seen as a traveler
approached the crossing; and yet, in spite of that fact, the chauffeur drove
upon the tracks without investigation or precaution of any kind. The very fact
that a train was approaching and was so near as to collide with the
automobile is strong evidence of the fact that no precautions were taken to
determine that fact. It is undoubted that if the driver had taken the simplest
means of permitting his own faculties to exercise themselves fairly, there
would have been no accident, as the presence of the train would have been
discovered in an instant; but he chose, rather, to give his senses no
opportunity to protect him or his passengers and drove on the track at full
speed with all the noise which an automobile produces at such speed on an
upgrade and the sense of hearing impaired by the rush of the wind. Railroad
trains rarely pass over tracks without noise and their presence, generally
speaking, is easily detected by persons who take ordinary precautions.

Under this assignment the appellant's main effort is being to the

demonstration of the fact that there was a custom established among
automobile drivers of Manila by which they habitually drove their cars over
railroad crossings in the manner in which the automobile was driven by
defendant's servant on the occasion in controversy. To prove that custom
counsel presents the evidence of the president of the defendant company,
Mr. Bachrach, who testified on the trial that all of his drivers, including the
one in charge of the car on the night of the accident, operated cars in that
manner and that it was the custom among automobile drivers generally.
Counsel also cites the testimony of the witness Palido, living near the scene
of the accident, who testified that, as a general rule, automobiles passed over
the railroad crossing without changing speed. This testimony was
corroborated by the defendant company's driver who had the automobile in
charge at the time of the occurrence. Basing himself on this alleged custom
counsel contends that "When a person does what is usual and customary, i.
e., proceeds as he and others engaged in a like occupation have been
accustomed to proceed, the action cannot be characterized as reckless, nor,
strictly speaking as negligent." To this the obvious reply may be made, for the
moment admitting the existence of the custom, that a practice which is
dangerous to human life cannot ripen into a custom which will protect anyone
who follows it. To go upon a railroad crossing without making any effort to
ascertain the approach of a train is so hazardous an act and one so
dangerous to life, that no one may be permitted to excuse himself who does
it, provided injury result. One who performs an act so inherently dangerous
cannot, when an accident occurs, take refuge behind the plea that others
have performed the same act safely.
Under the second error assigned, the appellant contends with much vigor
that the plaintiffs cannot recover for the reason that the negligence of the
driver of the automobile, if any, was imputable to them, they having
permitted the driver to approach and pass over the railroad crossing without
the use of ordinary care and diligence to determine the proximity of a train or
locomotive, and having made no effort to caution or instruct him or compel
him to take reasonable care in making the crossing. With this contention we
cannot agree. We think the better rule, and one more consonant with the
weight of authority, is that a person who hires a public automobile and gives
the driver direction as to the place to which he wishes to be conveyed, but
exercise no other control over the conduct of the driver, is not responsible for
acts of negligence of the latter or prevented from recovering for injuries
suffered from a collision between the automobile and a train, caused by the
negligence either of the locomotive engineer or the automobile driver.
(Little vs. Hackett, 116 U.S., 366.) The theory on which the negligence of the
driver has in some instances been imputed to the occupant of the vehicle is
that, having trusted the driver by selecting the particular conveyance, the
plaintiff so far identified himself with the owner and his servants that, in case
of injury resulting from their negligence, he was considered a party thereto.
This was the theory upon which the case of Thorogood vs. Bryan (8 C.B., 115)
was decided, which is the leading case in favor of the principle contended for
by appellant. The Supreme Court of the United States, however, in Little vs.
Hackett (116 U.S., 366), had this to say concerning the ground on which the
Thorogood case was decided: "The truth is, the decision in Thorogood vs.
Bryan rests upon indefensible ground. The identification of the passenger
with the negligent driver or the owner, without his personal cooperation or
encouragement, is a gratuitous assumption. There is no such identity. The
parties are not in the same position. The owner of public conveyance is a
carrier, and the driver or the servant of the passenger, and his asserted
identity with them is contradicted by the daily experience of the world."
Further discussing the same question the court said: "There is no distinction
in principle whether the passenger be on public conveyance like a railroad
train or an omnibus, or be on a hack hired from a public stand in the street
for a drive. Those on a hack do not become responsible for the negligence of
the driver if they exercise no control over him further than to indicate the
route they wish to travel or the places to which they wish to go. If he is their
agent so that his negligence can be imputed to them to prevent their
recovery against a third party, he must be their agent in all other respects, so
far as the management of the carriage is concerned, and responsibility to
third parties would attach to them for injuries caused by his negligence in the
course of his employment. But, as we have already stated, responsibility
cannot, within any recognized rules of law, be fastened upon one who has in
no way interfered with and the with and controlled in the matter causing the
injury. From the simple fact of hiring the carriage or riding in it no such
liability can arise. The party hiring or riding must in some way have
cooperated in producing the injury complained of before he incur any liability
for it. 'If the law were otherwise,' as said by Mr. Justice Depue in his elaborate
opinion in the latest case in New Jersey, 'not only the hirer of the coach but
also all the passengers in it would be under a constraint to mount the box
and superintend the conduct of the driver in the management and control of
his team, or be put for remedy exclusively to an action against the
irresponsible driver or equally irresponsible owner of a coach taken, it may
be, from a coach stand, for the consequences of an injury which was the
product of the cooperating wrongful acts of the driver and of a third person,
and that too, though the passengers were ignorant of the character of the
driver, and of the responsibility of the owner of the team, and strangers to
the route over which they were to be carried.' (New York, Lake Erie & Western
Railroad vs. Steinbrenner, 47 N.J.L. [18 Vroom], 161, 171.)"
We are of the opinion, therefore, that the rule is as we have stated it.
Ordinarily where one rides in public vehicle with the driver thereof and is
injured by the negligence of a third person, to which negligence that of the
driver contributes his contributory negligence is not imputable to the
passenger unless said passenger has or is in the position to have and
exercise some control over the driver with reference to the matter wherein he
was negligent. Whether the person injured exercises any control over the
conduct of the driver further than to indicate the place to which he wishes to
drive is a question of fact to be determined by the trial court on all of the
evidence in the case. (Duval vs. Railroad Co., 134 N. C., 331; Hampel vs.
Detroit etc. R. R. Co., 110 Am. St. Rep., 275; Cotton vs. Willmar etc. R. R. Co.,
99 Minn., 366; Shultz vs. Old Colony Street Ry. Co., 193 Mass., 309; Wilson vs.
Puget Sound Elec. Ry. Co., 52 Wash., 522; Johnson vs. Coey, 237 Ill., 88;
Hindu vs. Steere, 209 Mass. 442.)
The appellant assigns as the third error the finding of the trial court "that the
defendant Manila Railroad Company was not guilty of negligence which
contributed to the causing of the accident complained of."
In this connection it appears that, prior to the beginning of the action now
before us, two actions were instituted, both growing out of the accident which
forms the basis of the actions before us: (1) A criminal action against the
engineer of the train, in which the engineer was acquitted; and (2) a civil
action for damages by the garage and taxicab company, the appellant herein,
against the defendant railroad company, for damages to the automobile
which was destroyed as a result of the accident, in which judgment was for
defendant. There is evidence in the record showing that the locomotive
engineer gave due and timely signals on approaching the crossing in
question. The trial court found that the employees of the railroad company
fully performed their duty as the train approached the crossing on the night
in question and that, therefore, the railroad company in nowise contributed to
the accident. We do not believe that the record will justify us in a reversal of
this finding. There is abundant evidence to support it and we have nothing
before us by which that evidence may be impeached. That the bell was rung
and the whistle was blown on nearing the crossing, giving due and timely
warning to all persons approaching, was testified to not only by servants of
the corporation but by passengers on the train. We find nothing in the record
which materially impairs the credibility of these witnesses or to show that
their evidence is improbable or unreasonable; and we would be going far
under such circumstances in discarding it and reversing a judgment based
thereon.
The appellant under this assignment of error presents other facts which he
claims show necessarily that the company was negligent. He asserts: "(1)
That this accident occurred in the heart of the barrio of San Juan (Cavite
Viejo), within approximately one hundred meters of the railroad station, that
is, in a populous community; (2) that the railroad company did not maintain
either a flagman or protecting gates at the grade crossing where the accident
occurred, while the sign "Railroad Crossing" was broken on the side toward
the road; (3) that trees and undergrowth had been permitted to grow on and
adjoining the right of way and houses were constructed thereon, in such
manner as to obstruct the view of persons approaching the railroad track
until within a few meters thereof; and (4) that the approach to the crossing is
twisting, and on either side thereof are ditches about two meters deep."
With respect to the existence of trees and undergrowth on the railroad
company's right of way, the evidence is conflicting, plaintiff maintaining and
attempting to prove that such trees and undergrowth existed, while
defendant company contended and offered evidence to show that no such
growth existed at the time of the accident. On this conflict of evidence the
trial court found: "Evidence on the part of the defendant Bachrach Garage &
Taxicab Co. is to the effect that the view from the crossing along the track
towards Manila was obstructed by bushes growing on the railroad right to
way along the track, while the preponderance of the evidence discloses that
for a distance of twelve or fifteen meters from the a view of the track for a
considerable distance is wholly unobstructed, and I can but conclude that the
driver of the unobstructed, and I can but conclude that the driver of the
automobile was grossly negligent and careless in not taking such precaution
as would have notified him of the coming of the train. On the contrary, he
proceeded with reckless speed and regardless of possible or threatened
danger."
Here again we are met with a contradiction in the evidence of witnesses who,
so far as appears, are equally entitled to credit, which conflict has been
resolved by the trial court in favor of the witnesses for the defendant railroad
company. Counsel for appellant has failed to give any reason why we should
we should accept the testimony of appellant's witnesses rather than those of
the railroad company and he has also neglected to point out any error
committed by the trial court in making its finding in this regard. A careful
examination of the record discloses no reason why the judgment of the trial
court on this point should be disturbed, there appearing nothing on which we
could base a judgment declaring that the trial court erred in making its
decision.
As to the other facts set forth on which appellant predicates negligence on
the part of the railroad company, we find them, even if admitted, to be
insufficient to establish negligence. It is not negligence on the part of the
railroad company to maintain grade crossing, even in populous district; nor is
it negligence not to maintain a flagman at such crossing. It is true that a
railroad company is held to greater caution in the more thronged streets of
the densely populated portions of the city than in the less frequented streets
in suburban parts or in towns; but this does not mean that it is negligence to
maintain grade crossing in such densely populated portions or that it is
negligence not to maintain a flagman at crossings located in such districts. It
simply means that the company in operating its trains over such crossings
must exercise care commensurate with the use of crossings in any given
locality.
The main contention of the appellant is based on the claim that, even
admitting as proved all of the facts alleged by the plaintiffs, the appellant is
not liable. It is maintained that up to the time the accident occurred the
defendant taxicab company had fully performed its duty to the public, it
being undisputed in the record that the driver was competent and had a long
and satisfactory record, having driven cars for the defendant for 5 or 6 years
without accident or misadventure, and that his negligence, if any, in
attempting to pass over the crossing on the occasion before us, cannot
legally be imputed to the taxicab company so as to make it liable for the
damages resulting therefrom. In supporting of this argument the case of
Johnson vs. David (5 Phil., Rep., 663), is cited as determinative of the
question under consideration. The appellant, however, having denied the fact
of negligence, we might, before entering on a discussion of the applicability
of the principles enunciated in Johnson vs. David to the facts before us,
repeat what we have already said, that it appears from the record, and was
found by the trial court, that the driver of the automobile drove his machine
upon the railroad tracks without observing the precautions which ordinary
care and prudence would have required. He made substantially no effort
toward ascertaining whether there was danger from a train or locomotive.
The trial court found, as was quite necessary under the facts, that the driver
was guilty of gross negligence and that such negligence was the proximate
cause of the accident. It also found that the taxicab company had permitted
its drivers to approach and pass over railroad tracks in the manner and form
followed and observed on the occasion in question until it had become a
custom among its drivers, known and sanctioned by the company; and that,
for that reason, the taxicab company was liable for the damages caused. We
are of the opinion that the trial court is fully supported in the finding that the
conduct of the officials of the taxicab company, and notably the president
thereof, amounted, in law, to a sanction of the custom established among its
automobile drivers in passing over railroad crossings. Counsel is met,
therefore, at the opening of his discussion on this branch of the case, with the
question: Did the defendant taxicab company fully discharge its duty when it
furnished a suitable and proper car and selected driver who had been with
the company for 5 or 6 years and who had not had an accident or
misadventure before? We think not. It was the duty of the company not only
to furnish a suitable and proper car and select a competent operator, but also
to supervise and, where necessary, instruct him properly.
Returning now to the applicability of the case of Johnson vs. David to the
facts before us:
The Civil Code, in dealing with the liability of a master for the negligent acts
of his servant, makes a distinction between private individuals and public
enterprises. (Art. 1903, Civil Code.) That article, together with the preceding
article, is as follows:
ART 1902. A person who by an act or omission causes damage to another
when there is fault or negligence shall be obliged to repair the damage so
done.
ART. 1903. The obligation imposed by the preceding article is demandable,
not only for personal acts and omissions, but also for the persons for whom
they should be responsible.
The father, and on his death or incapacity the mother is liable for the
damages caused by the minors who live with them.
Guardians are liable for the damages caused by minors or incapacitated
persons who are under their authority and live with them.
Owners or directors of an establishment or enterprise are equally liable for
the damages caused by their employees in the service of the branches in
which the latter may be employed or on account of their duties.
The State is liable in this sense when it acts through a special agent, but not
when the damage should have been caused by the official to whom properly
it pertained to do the act performed, in which case the provisions of the
proceeding article shall be applicable.
Finally, master or directors of arts and trades are liable for the damages
caused by their pupils or apprentices while they are under their custody.
The liability referred to in this articles shall cease when the persons
mentioned therein prove that they employed all the diligence of a good father
of a family to avoid the damage.
These two articles are found under chapter 2, title 16, of the Civil Code,
dealing with "obligations which arise from fault or negligence;" and set out
the cases, generally speaking, in which the master is liable for the acts of his
servant. That chapter also contains articles providing for liability for negligent
acts of servants in special cases, among them 1905, which provides that "the
possessor of an animal, or the one who uses it, is liable for the damages it
may cause even when said animal escapes from him or strays," but that this
liability shall cease "in the case the damage should arise from force
majeure or from the fault of the person who may have suffered it;" 1906,
which declares that "the owner of a game preserve shall be liable for
damages caused by the game to neighboring estates, should he not have
done what may have been necessary to avoid increase of the same or should
he have hindered the efforts of the owners of said estates to hunt;" 1907,
which provides for the liability of the owner of a building "for damages which
may result from the collapse of the whole or a part thereof, if it should occur
through the absence of necessary repairs;" 1908, which states that "owners
shall be liable for damages caused by the explosion of machines which may
not have been cared for with due diligence, and been placed in a safe and
proper place;" "by excessive smoke, which may be noxious to persons of
property;" "by the fall of trees, located in places of transit, when not caused
by force majeure;" "by the emanations of sewers or deposits of infectious
matters, when constructed without precautions proper for the place where
they are located;" and "the head of a family who dwells in a house, or in a
part of the same, is liable for the damages by the things which may be
thrown or which may fall therefrom."
These are the only cases under the Civil Code in which damages may be
recovered from the master for the negligent of his servant. As is seen from a
reading of article 1903, a person being driven about by his servant's
negligent acts except under certain circumstances. (Chapman vs.
Underwood, 27 Phil., Rep., 374; Johnson vs. David, supra.) On the other hand,
the master is liable for the negligent acts of his servant where he is the
owner or director of a business or enterprise and the negligent acts are
committed while the servant is engaged in his master's employment as such
owner.
The distinction made in the Code has been observed, as would naturally be
expected, by the decisions of this court. In the case of Johnson vs.
David, supra, we held that the defendant was not liable for the acts of his
servant in negligently driving a horse and carriage against plaintiff, who was
at the time riding a bicycle in the streets of Manila, throwing him to the
ground and injuring him and his bicycle. It appeared in that case that the
vehicle was owned by the defendant, that it was being driven by the
defendant's coachman on the private affairs of the owner, that it was not a
public conveyance driven for hire or as a part of a business or enterprise. In
that case we said: "It would seem, from an examination of these various
provisions, that the obligation to respond for the negligent acts of another
was limited to the particular cases mentioned; in other words, we are of the
opinion and so hold that it was the intention of the legislature in enacting said
chapter 2 to enumerate all the persons for whose negligent acts third persons
are responsible. Article 1902 provides when a person himself is liable for
negligence. Articles 1903, 1904, 1905, 1906, 1907, 1908, and 1910 provide
when a person shall be liable for injuries caused, not by his own negligence
but by the negligence of other persons or things.
xxx xxx xxx
These sections do not include a liability on the part of the plaintiff for injuries
resulting from acts of negligence such as are complained of in the present
cause . . . ."
These case of Chapman vs. Underwood, (27 Phil., Rep., 374) was similar in its
facts and the principles governing it, to that of Johnson vs. David. In that case
the plaintiff, while about to board a street car, was struck by an automobile
which, at the time, was being driven on the wrong side of the street. The
automobile was in charge of the servant of the owner, who was present in the
automobile at the time the accident occurred. The automobile was not a part
of defendant's business nor was it being used at the time as a part or adjunct
of any business or enterprise owned or conducted by him. Although the act of
the driver was negligent, and was so declared by this court, it was,
nevertheless, held that the master was not liable for the results of the act. We
said:
The defendant, however, is not responsible for the negligence of his driver,
under the facts and circumstances of this case. As we have said in the case of
Johnson vs. David (5 Phil., Rep., 663), the driver does not fall within the list of
person in article 1903 of the Civil Code for whose acts the defendant would
be responsible.
Although in the David case the owner of the vehicle was not present at the
time the alleged negligent acts were committed by the driver, the same rule
applies where the owner is present, unless the negligent acts of the driver are
continued for such a length of time as to give the owner a reasonable
opportunity to observe them and to direct his driver to desist therefrom. An
owner who sits in his automobile, or other vehicle, and permits his driver to
continue in a violation of the law by the performance of negligent acts, after
he has had a reasonable opportunity to observe them and to direct that the
driver, becomes himself responsible for such acts. The owner of an
automobile who permits his chauffeur to drive up the Escolta, for example, at
a speed of 60 miles an hour, without any effort to stop him, although he has
had a reasonable opportunity to do so, becomes himself responsible, both
criminally and civilly, for the results produced by the acts of his chauffeur. On
the other hand, if the driver, by a sudden act of negligence, and without the
owner having a reasonable opportunity to prevent the act or its continuance,
injures a person or violates the criminal law, the owner of the automobile,
although present therein at the time the act was committed, is not
responsible, either civilly or criminally, therefor. The act complained of must
be continued in the presence of the owner for such a length of time that the
owner, by his acquiescence, makes his driver's act his own.
In the case before us it does not appear from the record that, from the time
the automobile took the wrong side of the road to the commission of the
injury, sufficient time intervened to afford the defendant an opportunity
correct the act of his driver. Instead, it appears with fair clearness that the
interval between the turning out to meet and pass the street car and the
happening of the accident was so short as not to be sufficient to charge
defendant with the negligence of the driver.
The case of Bahia vs. Litonjua and Leynes (30 Phil., Rep., 624), was a case of
a different character. There an automobile was being operated by the
defendant as a public vehicle carrying passengers from Balayan to Tuy
(Province of Batangas) and return for hire. On one to the trips, the machine,
by reason of a defect in the steering gear, refused to respond to the guidance
of the driver and, as a result a child was run over and killed. That case, as is
seem at a glance, is quite different from the case of Johnson vs. David and
that of Chapman vs. Underwood, in that the automobile was operated as a
business or enterprise on which the defendant had entered for gain; and this
is the particular distinction which is made in article 1903 of the Civil Code
which holds the masters responsible for the negligent acts of the servant
when the master is the owner "of an establishment or enterprise," and the
acts complained of are committed within the scope of the servant's
employment in such business. In the case under discussion we held that, in
addition to the requirement to furnish and use proper and safe machines, it
was the duty of a person or corporation operating automobiles for hire to
exercise ordinary care and diligence in the selection of the drivers of his or its
automobiles and in supervision over them while in his or its employ, including
the promulgation of proper rules and regulations and the formulation and due
publication of proper instructions for their guidance in cases where such
rules, regulations and the formulation and due publication of proper
instructions for their guidance in cases where such rules, regulations and
instruction are necessary. Discussion article 1903 of the Civil Code, which, as
we have seen, not only established liability in case of negligence but also
provides when that liability ceases, the court in that case said:
From this article two things are apparent: (1) That when an injury is caused
by the negligence of a servant or employee there instantly arises a
presumption of law that there was negligence on the part of the master or
employer either in the selection of the selection of the servant or employee
or in supervision over him after the selection, or both; and (2) that that
presumption is juris tantum and not juris et de jure and consequently may be
rebutted. It follows necessarily that if the employer shows to the satisfaction
of the court that in selection and supervision he has exercised the care and
diligence of a good father of a family, the presumption is overcome and he is
relieved from liability.
This theory bases the responsibility of the master ultimately on his own
negligence and not on that of his servant. This is the notable peculiarity of
the Spanish law of negligence. It is, of course, in striking contrast to the
American doctrine that, in relations with strangers, the negligence of the
servant is conclusively the negligence of the master. In the case before us the
death of the child caused by a defect in the steering gear of the automobile
immediately raised the presumption that Leynes was negligent in selecting a
defective automobile or in his failure to maintain it in good condition after
selection and the burden of proof was on him to show that he had exercised
the care of a good father of a family.
In that case we further said: "From the commencement of the use of the
machine until the accident occurred sufficient time had not elapsed to require
an examination of the machine by the defendant as a part of his duty of
inspection and supervision. While it does not appear that the defendant
formulated rules and regulations for the guidance of the drivers and gave
them proper instructions, designed for the protection of the public and the
passengers, the evidence shows, as we have seen, that the death of the child
was not caused by a failure to promulgate rules and regulations. It was
caused by a defect in the machine as to which the defendant has shown
himself free from responsibility."
We, therefore, see that taxicab company did not perform its full duty when it
furnished a safe and proper car and a driver with a long and satisfactory
record. It failed to comply with one of the essential requirements of the law of
negligence in this jurisdiction, that of supervision and instruction, including
the promulgation of proper rules and regulations and the formulation and
publication of proper instructions for their guidance in cases where such rules
and regulations and instructions are necessary. To repeat, it was found by the
trial court, and that finding is fully sustained by the record, that it was the
custom of the driver who operated the machine on the night of the accident,
to approach and pass over railroad crossings without adequate precautions,
and that such custom was known to and had been sanctioned by the officials
of the taxicab company, the president of the company testifying that none of
its drivers, especially the one who operated the car on the night of the
accident, were accustomed to stop or even reduce speed or take any other
precaution in approaching and passing over railroad crossings, no matter of
what nature, unless they heard "the signal of a car." He testified that he
himself had ridden behind several of his drivers, among them the one who
handled the automobile on the night of the accident, and that it was settled
practice, to which he made no objection and as to which he gave no
instructions, to approach and pass over railroad crossings without any effort
to ascertain the proximity of a train. These facts and circumstances bring the
case within the doctrine enunciated in the Litonjua case to which reference
has already been made, and, at the same time, remove it from that class of
cases governed by Johnson vs. David. Not only has the defendant taxicab
company failed to rebut the presumption of negligence arising from the
carelessness of its servant, but it has, in effect, made those negligent acts its
own by having observed and known the custom of its drivers without
disapproving it and without issuing instructions designed to supersede it.
We are of the opinion that the trial court erred in fixing the amount of
damages which the plaintiffs suffered. Under the law, each of the plaintiffs, is
entitled to recover the time, doctors' bills and hospital bills and hospital bills
and medicines, and any other item of expense which it was found necessary
to undergo by reason of the damages sustained. The plaintiff Butaro Yamada
is entitled to be reimbursed for his hospital bill of P49, for the P50 which he
paid to Dr. Strahan, and for the loss of time which he suffered at the rate of
P100 a month. The trial court allowed him for certain alleged fees of doctors
and expenses in hospitals and at hot springs in Japan. He was also allowed
P150 alleged by him to have been paid to a Japanese doctor in Manila. We do
not believe that the record warrants these allowances. As to the expenses in
Japan, we may say that the injury occurred to plaintiff on the 2nd of January
and he remained in Manila for nearly 6 months before going to Japan.
According to the testimony of Dr. Strahan the plaintiff was in good physical
condition long before he left this country for Japan. His testimony is to the
effect that the plaintiff suffered no permanent injuries, the damage being
limited to temporary shocks and bruises, and that he would be ready for his
usual occupation in about 3 months. According to plaintiff's own testimony he
went back to work 2 months after the injury, but, claiming he still felt pains,
went to Japan. We do not believe that we ought to accept the plaintiff's bare
statement as to his physical condition after leaving the Philippine Islands in
defiance of the testimony of Dr. Strahan as to his physical condition 3 months
after the injury was received and particularly in view of the fact that he
returned to work at the end of 2 months. As to the P150 alleged to have been
paid to a Japanese doctor in Manila, we have grave doubts whether he had
sufficiently proved that item of expenditure. He does not give the name of the
physician to whom he paid the money and he presents no receipt or voucher
from the person whom he paid. He made no memorandum of the payment at
the time or of the person to whom he paid it or of the date on which it was
paid. All of his testimony relating to the items which constitute his damage
was based on a memorandum made from memory on the morning of the
trial. It seems to us that where the sources of knowledge are to so large an
extent within the knowledge and control of the person who presents the
evidence, he should be held rather strictly to presenting the best evidence
that the circumstances permit. If he had offered the Japanese doctor as a
witness or if he had even produced receipts from him, the matter would have
borne quite a different aspect.
We are accordingly of the opinion that the judgment in favor of this plaintiff
should consist simply of the loss of time, amounting to 2 months at P100 a
month, his hospital bill of P49 and his doctor's bill of P50, in all P299, with
costs.
With respect to the plaintiff Takutaru Uyehara, the judgment in his favor must
be also modified. Concerning his condition we have substantially the same
testimony by the same doctor that we had in the case of Yamada. There were
no permanent injuries. The plaintiff suffered merely from shock and bruises.
He was quite recovered in 3 months. It appears that he was earning P200 a
month at the time of his injury and that his hospital expense, including
attendance of a physician, was P350. We are satisfied from the record that he
is entitled to P600 for 3 months' loss of wages and to P350 for hospital
expenses and medical attendance. As to the claim for P150 paid to a
Japanese doctor, we have in substance the same circumstances found in
connection with the claim of the plaintiff Yamada, - no name, no date, no
memorandum, no receipt; nothing but the testimony of the plaintiff himself
based upon date prepared from memory. It is worthy of note also that both
this plaintiff and plaintiff Yamada claim to have paid exactly the same amount
to Japanese doctors in Manila.
Judgment is hereby rendered in favor of the plaintiff Takutaru Uyehara for the
sum of P950, and costs.
With respect to the judgment in favor of the plaintiff Kenjiro Karabayashi, we
are clear that it must be reduced in amount. This plaintiff was able,
immediately after the accident occurred, to move about readily an to assist
his injured companions. He did not go to a hospital, or, so far as appeared,
consult a physician until some time after the accident. He alleges that he paid
to Japanese doctors P310 and to massage doctors P130, and that he paid
P365 for medicines. The injury was received on the 2d of January, 1913, and
this caution was commenced in October of the same year. It seem to us
incredible that the plaintiff, who suffered and suffers from no physical injury
testified to by any physician, should have paid out during that time more
than P800 for medicines and doctors. That sum exceeds the sums claimed to
have been paid out by the other plaintiffs, who were so badly injured that
they were carried in a semiconscious condition to the hospital and were
unable to move without assistance for some days.
This plaintiff complains of loss of memory as the only result of his injuries and
claims that he is unable to obtain a salary equivalent to that which he was
receiving before the accident. He presents no evidence of such loss of
memory except his own statement, his physical condition at the time of the
trial being apparently perfect and there being at that time no evidence, as he
himself admitted, of loss of memory. He presented no doctor to testify as to
services rendered, indeed, he does not even furnish the name of the person
to whom the money was paid, and he shows no receipts and produces no
evidence except his own statement with respect to the amount paid out for
medicines. We believe that, under this testimony, no damages should be
allowed to this plaintiff except possibly salary for the short period during
which, by reason of shock, he may have been unable to render active service.
He testified that he lost two and one-half months' time, during which he did
not work at all, and that his services were worth P160 a month.
The judgment of the Court of First Instance with respect to this plaintiff,
Kenjiro Karabayashi, is modified and judgment in his favor and against the
Bachrach Garage & Taxicab Co. for P400 is hereby decreed, with costs.
It may be urged that the reductions in the amounts allowed the several
plaintiffs by the trial court are arbitrary, the evidence as to the damages
sustained being uncontradicted and the trial court having based its judgment
thereon. It is clear, however, that we are in no way interfering with the rule so
many times laid down by this court that we will not interfere with the
judgment of the trial court as to the credibility of witnesses except where it
appears that the court overlooked or misapplied facts or circumstances of
weight and influence appearing in the case. Here the trial court seems to
have overlooked those facts and circumstances top which we have adverted
and which we have made the basis of the modification. It nowhere appears in
the decision of the trial court or elsewhere in the record that it took any of
those facts and circumstances into consideration. So ordered. Arellano, C.J.,
Torres, Carson and Araullo, JJ., concur.
Johnson, J., concurs in the result.
Trent, J., did not sit in the case.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-39587 March 24, 1934

ALEKO E. LILIUS, ET AL., plaintiffs-appellants,

vs.
THE MANILA RAILROAD COMPANY, defendant-appellant.

Harvey and O'Brien for plaintiffs-appellants.

Jose C. Abreu for defendant-appellant.

VILLA-REAL, J.:

This case involves two appeals, one by the defendant the Manila Railroad
Company, and the other by the plaintiffs Aleko E. Lilius et al., from the judgment
rendered by the Court of First Instance of Manila, the dispositive part of which
reads as follows:

Wherefore, judgment is rendered ordering the defendant company to pay

to the plaintiffs, for the purposes above stated, the total amount of
P30,865, with the costs of the suit. And although the suit brought by the
plaintiffs has the nature of a joint action, it must be understood that of the
amount adjudicated to the said plaintiffs in this judgment, the sum of
P10,000 personally belongs to the plaintiff Sonja Maria Lilius; the sum of
P5,000, to the plaintiff Brita Marianne Lilius; the sum of P250, to Dr. Marfori
of the Calauan Hospital, Province of Laguna, and the balance to the
plaintiff Aleko E. Lilius.

In support of its appeal, the appellant the Manila Railroad Company assigns nine
alleged errors committed by the trial court in its said judgment, which will be
discussed in the course of this decision.

As a ground of their appeal, the appellants Aleko E. Lilius et al., in turn, assign
two alleged errors as committed by the same court a quo in its judgment in
question, which will be discussed later.

This case originated from a complaint filed by Aleko E. Lilius et al., praying, under
the facts therein alleged, that the Manila Railroad Company be ordered to pay to
said plaintiffs, by way of indemnity for material and moral damages suffered by
them through the fault and negligence of the said defendant entity's employees,
the sum of P50,000 plus legal interest thereon from the date of the filing of the
complaint, with costs.
The defendant the Manila Railroad Company, answering the complaint, denies
each and every allegation thereof and, by way of special defense, alleges that
the plaintiff Aleko E. Lilius, with the cooperation of his wife and coplaintiff,
negligently and recklessly drove his car, and prays that it be absolved from the
complaint.

The following facts have been proven at the trial, some without question and the
others by a preponderance of evidence, to wit:

The plaintiff Aleko E. Lilius has, for many years, been a well-known and reputed
journalist, author and photographer. At the time of the collision in question, he
was a staff correspondent in the Far East of the magazines The American
Weekly of New York and The Sphere of London.

Some of his works have been translated into various languages. He had others in
preparation when the accident occurred. According to him, his writings netted him
a monthly income of P1,500. He utilized the linguistic ability of his wife Sonja
Maria Lilius, who translated his articles and books into English, German, and
Swedish. Furthermore, she acted as his secretary.

At about 7 o'clock on the morning of May 10, 1931, the plaintiff, his wife Sonja
Maria Lilius, and his 4-year old daughter Brita Marianne Lilius, left Manila in
their Studebaker car driven by the said plaintiff Aleko E. Lilius for the
municipality of Pagsanjan, Province of Laguna, on a sight-seeing trip. It was the
first time that he made said trip although he had already been to many places,
driving his own car, in and outside the Philippines. Where the road was clear and
unobstructed, the plaintiff drove at the rate of from 19 to 25 miles an hour. Prior
thereto, he had made the trip as far as Calauan, but never from Calauan to
Pagsanjan, via Dayap. He was entirely unacquainted with the conditions of the
road at said points and had no knowledge of the existence of a railroad crossing
at Dayap. Before reaching the crossing in question, there was nothing to indicate
its existence and inasmuch as there were many houses, shrubs and trees along
the road, it was impossible to see an approaching train. At about seven or eight
meters from the crossing, coming from Calauan, the plaintiff saw an autotruck
parked on the left side of the road. Several people, who seemed to have alighted
from the said truck, were walking on the opposite side. He slowed down to about
12 miles an hour and sounded his horn for the people to get out of the way. With
his attention thus occupied, he did not see the crossing but he heard two short
whistles. Immediately afterwards, he saw a huge black mass fling itself upon him,
which turned out to be locomotive No. 713 of the defendant company's train
coming eastward from Bay to Dayap station. The locomotive struck the plaintiff's
car right in the center. After dragging the said car a distance of about ten meters,
the locomotive threw it upon a siding. The force of the impact was so great that
the plaintiff's wife and daughter were thrown from the car and were picked up
from the ground unconscious and seriously hurt. In spite of the efforts of engineer
Andres Basilio, he was unable to stop the locomotive until after it had gone about
seventy meters from the crossing.
On the afternoon of the same day, the plaintiff's entered St. Paul's Hospital in the
City of Manila where they were treated by Dr. Waterous. The plaintiff Aleko E.
Lilius suffered from a fractured nose, a contusion above the left eye and a
lacerated wound on the right leg, in addition to multiple contusions and scratches
on various parts of the body. As a result of the accident, the said plaintiff was
highly nervous and very easily irritated, and for several months he had great
difficulty in concentrating his attention on any matter and could not write articles
nor short stories for the newspapers and magazines to which he was a
contributor, thus losing for some time his only means of livelihood.

The plaintiff Sonja Maria Lilius suffered from fractures of the pelvic bone, the tibia
and fibula of the right leg, below the knee, and received a large lacerated wound
on the forehead. She underwent two surgical operations on the left leg for the
purpose of joining the fractured bones but said operations notwithstanding, the
leg in question still continues deformed. In the opinion of Dr. Waterous, the
deformity is permanent in character and as a result the plaintiff will have some
difficulty in walking. The lacerated wound, which she received on her forehead,
has left a disfiguring scar.

The child Brita Marianne Lilius received two lacerated wounds, one on the
forehead and the other on the left side of the face, in addition to fractures of both
legs, above and below the knees. Her condition was serious and, for several
days, she was hovering between life and death. Due to a timely and successful
surgical operation, she survived her wounds. The lacerations received by the
child have left deep scars which will permanently disfigure her face, and because
of the fractures of both legs, although now completely cured, she will be forced to
walk with some difficulty and continuous extreme care in order to keep her
balance.

Prior to the accident, there had been no notice nor sign of the existence of the
crossing, nor was there anybody to warn the public of approaching trains. The
flagman or switchman arrived after the collision, coming from the station with a
red flag in one hand and a green one in the other, both of which were wound on
their respective sticks. The said flagman and switchman had many times
absented himself from his post at the crossing upon the arrival of a train. The
train left Bay station a little late and therefore traveled at great speed.

Upon examination of the oral as well as of the documentary evidence which the
parties presented at the trial in support of their respective contentions, and after
taking into consideration all the circumstances of the case, this court is of the
opinion that the accident was due to negligence on the part of the defendant-
appellant company, for not having had on that occasion any semaphore at the
crossing at Dayap, to serve as a warning to passers-by of its existence in order
that they might take the necessary precautions before crossing the railroad; and,
on the part of its employees the flagman and switchman, for not having
remained at his post at the crossing in question to warn passers-by of the
approaching train; the stationmaster, for failure to send the said flagman and
switchman to his post on time; and the engineer, for not having taken the
necessary precautions to avoid an accident, in view of the absence of said
flagman and switchman, by slackening his speed and continuously ringing the
bell and blowing the whistle before arriving at the crossing. Although it is
probable that the defendant-appellant entity employed the diligence of a good
father of a family in selecting its aforesaid employees, however, it did not employ
such diligence in supervising their work and the discharge of their duties
because, otherwise, it would have had a semaphore or sign at the crossing and,
on previous occasions as well as on the night in question, the flagman and
switchman would have always been at his post at the crossing upon the arrival of
a train. The diligence of a good father of a family, which the law requires in order
to avoid damage, is not confined to the careful and prudent selection of
subordinates or employees but includes inspection of their work and supervision
of the discharge of their duties.

However, in order that a victim of an accident may recover indemnity for

damages from the person liable therefor, it is not enough that the latter has been
guilty of negligence, but it is also necessary that the said victim has not, through
his own negligence, contributed to the accident, inasmuch as nobody is a
guarantor of his neighbor's personal safety and property, but everybody should
look after them, employing the care and diligence that a good father of a family
should apply to his own person, to the members of his family and to his property,
in order to avoid any damage. It appears that the herein plaintiff-appellant Aleko
E. Lilius took all precautions which his skill and the presence of his wife and child
suggested to him in order that his pleasure trip might be enjoyable and have a
happy ending, driving his car at a speed which prudence demanded according to
the circumstances and conditions of the road, slackening his speed in the face of
an obstacle and blowing his horn upon seeing persons on the road, in order to
warn them of his approach and request them to get out of the way, as he did
when he came upon the truck parked on the left hand side of the road seven or
eight meters from the place where the accident occurred, and upon the persons
who appeared to have alighted from the said truck. If he failed to stop, look and
listen before going over the crossing, in spite of the fact that he was driving at 12
miles per hour after having been free from obstacles, it was because, his
attention having been occupied in attempting to go ahead, he did not see the
crossing in question, nor anything, nor anybody indicating its existence, as he
knew nothing about it beforehand. The first and only warning, which he received
of the impending danger, was two short blows from the whistle of the locomotive
immediately preceding the collision and when the accident had already become
inevitable.

In view of the foregoing considerations, this court is of the opinion that the
defendant the Manila Railroad Company alone is liable for the accident by
reason of its own negligence and that of its employees, for not having employed
the diligence of a good father of a family in the supervision of the said employees
in the discharge of their duties.
The next question to be decided refers to the sums of money fixed by the court a
quo as indemnities for damages which the defendant company should pay to the
plaintiffs-appellants.

With respect to the plaintiff-appellant Aleko E. Lilius, although this court believes
his claim of a net income of P1,500 a month to be somewhat exaggerated,
however, the sum of P5,000, adjudicated to him by the trial court as indemnity for
damages, is reasonable.

As to the sum of P10,635 which the court awards to the plaintiffs by way of
indemnity for damages, the different items thereof representing doctor's fees,
hospital and nursing services, loss of personal effects and torn clothing, have
duly been proven at the trial and the sum in question is not excessive, taking into
consideration the circumstances in which the said expenses have been incurred.

Taking into consideration the fact that the plaintiff Sonja Maria Lilius, wife of the
plaintiff Aleko E. Lilius is in the language of the court, which saw her at the trial
"young and beautiful and the big scar, which she has on her forehead caused
by the lacerated wound received by her from the accident, disfigures her face
and that the fracture of her left leg has caused a permanent deformity which
renders it very difficult for her to walk", and taking into further consideration her
social standing, neither is the sum of P10,000, adjudicated to her by the said trial
court by way of indemnity for patrimonial and moral damages, excessive. In the
case of Gutierrez vs. Gutierrez(56 Phil., 177), the right leg of the plaintiff Narciso
Gutierrez was fractured as a result of a collision between the autobus in which he
was riding and the defendant's car, which fractured required medical attendance
for a considerable period of time. On the day of the trial the fracture had not yet
completely healed but it might cause him permanent lameness. The trial court
sentenced the defendants to indemnify him in the sum of P10,000 which this
court reduced to P5,000, in spite of the fact that the said plaintiff therein was
neither young nor good-looking, nor had he suffered any facial deformity, nor did
he have the social standing that the herein plaintiff-appellant Sonja Maria Lilius
enjoys.1vvphi1.ne+

As to the indemnity of P5,000 in favor of the child Brita Marianne Lilius, daughter
of Aleko E. Lilius and Sonja Maria Lilius, neither is the same excessive, taking
into consideration the fact that the lacerations received by her have left deep
scars that permanently disfigure her face and that the fractures of both her legs
permanently render it difficult for her to walk freely, continuous extreme care
being necessary in order to keep her balance in addition to the fact that all of this
unfavorably and to a great extent affect her matrimonial future.

With respect to the plaintiffs' appeal, the first question to be decided is that raised
by the plaintiff Aleko E. Lilius relative to the insufficiency of the sum of P5,000
which the trial court adjudicated to him by way of indemnity for damages
consisting in the loss of his income as journalist and author as a result of his
illness. This question has impliedly been decided in the negative when the
defendant-appellant entity's petition for the reduction of said indemnity was
denied, declaring it to be reasonable.

As to the amount of P10,000 claimed by the plaintiff Aleko E. Lilius as damages

for the loss of his wife's services in his business as journalist and author, which
services consisted in going over his writings, translating them into English,
German and Swedish, and acting as his secretary, in addition to the fact that
such services formed part of the work whereby he realized a net monthly income
of P1,500, there is no sufficient evidence of the true value of said services nor to
the effect that he needed them during her illness and had to employ a translator
to act in her stead.

The plaintiff Aleko E. Lilius also seeks to recover the sum of P2,500 for the loss
of what is called Anglo-Saxon common law "consortium" of his wife, that is, "her
services, society and conjugal companionship", as a result of personal injuries
which she had received from the accident now under consideration.

In the case of Goitia vs. Campos Rueda (35 Phil., 252, 255, 256), this court,
interpreting the provisions of the Civil Marriage Law of 1870, in force in these
Islands with reference to the mutual rights and obligations of the spouses,
contained in articles 44-48 thereof, said as follows:

The above quoted provisions of the Law of Civil Marriage and the Civil
Code fix the duties and obligations of the spouses. The spouses must be
faithful to, assist, and support each other. The husband must live with and
protect his wife. The wife must obey and live with her husband and follow
him when he changes his domicile or residence, except when he removes
to a foreign country. . . .

Therefore, under the law and the doctrine of this court, one of the husband's
rights is to count on his wife's assistance. This assistance comprises the
management of the home and the performance of household duties, including
the care and education of the children and attention to the husband upon whom
primarily devolves the duty of supporting the family of which he is the head.
When the wife's mission was circumscribed to the home, it was not difficult to
assume, by virtue of the marriage alone, that she performed all the said tasks
and her physical incapacity always redounded to the husband's prejudice
inasmuch as it deprived him of her assistance. However, nowadays when
women, in their desire to be more useful to society and to the nation, are
demanding greater civil rights and are aspiring to become man's equal in all the
activities of life, commercial and industrial, professional and political, many of
them spending their time outside the home, engaged in their businesses,
industry, profession and within a short time, in politics, and entrusting the care of
their home to a housekeeper, and their children, if not to a nursemaid, to public or
private institutions which take charge of young children while their mothers are at
work, marriage has ceased to create the presumption that a woman complies
with the duties to her husband and children, which the law imposes upon her,
and he who seeks to collect indemnity for damages resulting from deprivation of
her domestic services must prove such services. In the case under
consideration, apart from the services of his wife Sonja Maria Lilius as translator
and secretary, the value of which has not been proven, the plaintiff Aleko E. Lilius
has not presented any evidence showing the existence of domestic services and
their nature, rendered by her prior to the accident, in order that it may serve as a
basis in estimating their value.

Furthermore, inasmuch as a wife's domestic assistance and conjugal

companionship are purely personal and voluntary acts which neither of the
spouses may be compelled to render (Arroyo vs. Vazquez de Arroyo, 42 Phil.,
54), it is necessary for the party claiming indemnity for the loss of such services
to prove that the person obliged to render them had done so before he was
injured and that he would be willing to continue rendering them had he not been
prevented from so doing.

In view of the foregoing considerations this court is of the opinion and so holds:
(1) That a railroad company which has not installed a semaphore at a crossing
an does not see to it that its flagman and switchman faithfully complies with his
duty of remaining at the crossing when a train arrives, is guilty of negligence and
is civilly liable for damages suffered by a motorist and his family who cross its
line without negligence on their part; (2) that an indemnity of P10,000 for a
permanent deformity on the face and on the left leg, suffered by a young and
beautiful society woman, is not excessive; (3) that an indemnity of P5,000 for a
permanent deformity on the face and legs of a four-year old girl belonging to a
well-to-do family, is not excessive; and (4) that in order that a husband may
recover damages for deprivation of his wife's assistance during her illness from
an accident, it is necessary for him to prove the existence of such assistance and
his wife's willingness to continue rendering it had she not been prevented from so
doing by her illness.

The plaintiffs-appellants are entitled to interest of 6 percent per annum on the

amount of the indemnities adjudicated to them, from the date of the appealed
judgment until this judgment becomes final, in accordance with the provisions of
section 510 of Act No. 190.

Wherefore, not finding any error in the judgment appealed from, it is hereby
affirmed in toto, with the sole modification that interest of 6 per cent per annum
from the date of the appealed judgment until this judgment becomes final will be
added to the indemnities granted, with the costs of both instances against the
appellant. So ordered.

Malcolm, Hull, Imperial, and Goddard, JJ., concur.

 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 42551 September 4, 1935

ALEKO E. LILIUS, for himself and as guardian ad litem of his minor child, Brita Marianne
Lilius, and SONJA MARIA LILIUS, plaintiffs-appellees,
vs.
MANILA RAILROAD COMPANY, defendant.
LAURA LINDLEY SHUMAN, MANILA WINE MERCHANTS, LTD., BANK OF THE PHILIPPINE
ISLANDS AND MANILA MOTOR CO., INC., intervenors-appellants, and
W.H. WATEROUS, M. MARFORI, JOHN R. MCFIE, JR., ERLANGER & GALINGER, INC.,
PHILIPPINE EDUCATION CO., INC., HAMILTON BROWN SHOE CO., ESTRELLA DEL NORTE
and EASTERN & PHILIPPINE SHIPPING AGENCIES, LTD., intervenors-appellees.

J.W. Ferrier for intervenor-appellant Shuman.

Franco and Reinoso for intervenor-appellant Manila Wine Merchants, Ltd.
Feria and La O for intervenor-appellant Bank of the Philippine Islands.
Gibbs and McDonough for intervenor-appellant Manila Motor Co.
Harvey and O'Brien for plaintiffs-appellees.
John R. Mcfie, Jr., in his behalf and for the intervenors-appellees.

GODDARD, J.:

In this case Laura Lindley Shuman, the Manila Wine Merchants, Ltd., the Bank of the Philippine
Islands and the Manila Motor Co., Inc., have appealed from an order of the Court of First Instance of
Manila fixing the degree of preference of the claimants and distributing the proceeds of the judgment
of this court in the case of Lilius vs. Manila Railroad Co. (59 Phil., 758), the amount of which
judgment in the sum of P33,525.03, including interest and costs, was deposited by the railroad
company with the clerk of the lower court in that case. After deducting the attorneys' fees in the sum
of P8,016.88, which is not questioned, the net amount in the hands of the clerk of the lower court
pertaining to each of the plaintiffs in the original action is follows:

Aleko E. Lilius P13,181.33

Sonja Maria Lilius 8,218.54

Brita Marianne Lilius 4,109.28

There was a total of twenty-eight claimants to these funds, whose claims were presented and
decided without objection in the original case in the lower court.

The trial court in its order from which these appeals are taken, allowed:

(a) As against the sum of P8,218.54, separately awarded to the plaintiff Sonja Lilius, the following
claims or portions thereof in the order stated:
 One-half of the claim of Dr. W.H. Waterous by virtue of a P1,500.00
written assignment of March 9, 1933, by the said Sonja
Maria Lilius to him

One-third of the claim of the appellant Laura Lindley 661.13

Shuman by virtue of a joint judgement obtained by her
on August 10, 1933, in the Case No. 44254 of the Court
of First Instance of Manila, against the said Sonja Maria
Lilius, Aleko E. Lilius and Brita Marianne Lilius

One-third of the claim of the St. Paul's Hospital by 518.19

virtue of a joint written assignment of September 21,
1933, by the said Sonja Maria Lilius, Aleko E. Lilius and
Brita Marianne Lilius to it

and the balance of the award was ordered paid to the said Brita Marianne Lilius, and

(b) As against the sum of P4,109.28, separately awarded to the plaintiff Brita Marriane Lilius, the
following claims or portions thereof in the order stated:

One-third of the claim of Laura Lindley Shuman by virtue P661.13

of a joint judgment obtained by her on August 10, 1933,
in Case No. 44254 of the Court of First Instance of
Manila, against the said Brita Marianne Lilius, Sonja
Maria Lilius and Aleko E. Lilius

One-third of the claim of St. Paul's Hospital by virtue 518.18

of a joint written assignment of September 21, 1933, by
the
said Brita Marianne Lilius, Sonia Maria Lilius and Aleko
E. Lilius

and the balance of the award was ordered paid to the said Brita Marianne Lilius, and

(c) As against the sum of P13,181.33, awarded to the plaintiff Aleko E. Lilius, the following claims or
portions thereof in the order stated:

The other half of the claim of Dr. W.H. Waterous by virtue

of the final judgement in the original case, G.R. No.
39587 P1,500.00

The claim of Dr. M. Marfori, by virtue of the final

judgment in the original case, G.R. No. 39587 250.00

The claim of John R. McFie, Jr., by virtue of a written 500.00

 assignment to him by the said Aleko E. Lilius of
November 13, 1931

The balance of P10, 931.33 of the judgment pertaining to

the said Aleko E. Lilius was allowed and distributed by
the lower court proportionately among the following
claimants by virtue of their written assignment of January
27, 1932:

Erlanger & Galinger, Inc. 3,374.50

Philippine Education Co., Inc., 3,394.94

Hamilton Brown Shoe Co. 1,878.98

Estrella del Norte 1,850.76

Eastern & Philippine Shipping Agencies, Ltd. 432.15

APPEAL OF LAURA LINDLEY SHUMAN

First assignments of error: "The lower court erred in holding that Dr. W.H. Waterous and Dr. M.
Marfori had a claim against the plaintiff, Aleko E. Lilius superior to the claim of the appellant, Laura
Lindley Shuman, against him."

One of the contentions of this appellant under this assignment of error is that her claim, having been
made the basis of the plaintiffs' action and of the award for damages, as shown in the original
decision herein, should constitute, and does constitute a superior lien against the funds awarded
said plaintiffs, to those of any other claimants, except the two doctors, the hospital and the other
nurse, and that as to the claims of the two doctors, the hospital and the other nurse the claim of this
appellant has equal preference with their claims.

The following items were made the basis of a part of the judgment for damages awarded to the
plaintiffs in the original action against the Manila Railroad Company:

Por honorarios del Dr. Waterous (Exhibit N-2) P3,000.00

Por la primera cura hecha en el Hospital de Calauang

(Exhibit N-5) 250.00
 Por el alquiler de la ambulancia del Hospital General
(Exhibit N-4) 10.00

Por la estancia en el Hospital Saint Paul (Exhibit N-3) 3,355.00

Por los servicios prestados por la enfermera Laura Shuman

(Exhibit N-6) 2,156.00

Por los servisios prestados por la enfermera Alejandra

Alcayaga (Exhibit N-9) 1,450.00

Porlos servicios prestados por la enfermera Carmen

Villanueva (Exhibit N-11) 240.00

Por la perdida de la camara fotografica, pluma fuente y

lapiz (Exhibit N-1) 43.00

Por trajes daados en el choque 131.00

Total 10,635.00

The trial court in that case directed the defendant Railroad Company to pay P3,000 to Dr. Waterous
and to pay to Dr. Marfori P250, but failed to direct the defendant to pay the corresponding sums to
the other persons and entities mentioned in the portion of the decision copied above.

It must be admitted that the amounts due Dr. Waterous and the others mentioned is the original
decision, including the appellant Shuman, were all used as a basis for a part of the judgment which
plaintiffs secured against the defendants Railroad Company.

From the foregoing it is clear that the claim of this appellant rests upon the same ground as those of
Doctors Waterous and Marfori. She was also among those who rendered services to plaintiffs in aid
of their recover from the injuries received by them in the accident for which damages were awarded
them in the case against the Railroad Company. The fact that the trial court did not direct the
defendant Railroad Company to pay directly to this appellant the amount of her claim does not
modify or do away with her equitable right to the same status as that given to the two doctors
mentioned above. The inevitable conclusion is that the claims of Waterous and Marfori have no
preference over her claim for her services as a nurse. This assignment of error should be and is
hereby sustained.

This appellant in her second assignment of error contends that the trial court erred in failing to allow
her claim in the sum of P61.94 as costs in the case in which judgment was rendered in her favor
against the herein plaintiffs-appellees. The record shows that the reason for the disallowance of this
item was because no proof was offered as to the amount of such costs. The only thing appearing in
the transcript on this point is the statement of counsel that the amount of costs in case No. 44254, as
shown by the bill of costs, was P6l.94. Rule 38 of the Revised Rules of Courts of First Instance
requires that ". . . costs shall be taxed by the clerk on five days' written notice given by the prevailing
party to the adverse party, with which notice given by the prevailing party, verified by his oath or that
of his attorney, shall be served. . . ." The proper evidence, therefore, of the costs in that case would
have been the bill of costs and the taxation of such costs by the clerk. In order to recover such costs
in a separate proceeding, such as this, evidence must be presented as to the amount of the same.
As there was no evidence offered in this case as to the amount of said costs, the lower court was
correct in disallowing that item. This assignment of error is overruled.

Under her third assignment of error this appellant contends (1) that the funds separately awarded
the wife, Sonja Maria Lilius, partake of the nature of conjugal property, at least to the extent of the
sum of P800 awarded to her as interest on the principal award of P10,000 made in her favor by the
trial court, and as such should respond for the support of the family, including medical expenses and
(2) that even assuming that the sums awarded separately to Sonja Maria Lilius are not conjugal
property, but her own paraphernal property, still under the provisions of the Civil Code payment may
be required out of said funds, her husband being insolvent, under her liability for the medical
expenses incurred by her husband, one of the obligations imposed by law upon the wife.

The second contention under this assignment of error can be disposed of by calling attention to the
fact that there is no proof in this case that her husband is insolvent. It has not been proved that Aleko
E. Lilius had no other property outside of the sum awarded to him in the case against the Railroad
Company.

APPEAL OF THE MANILA WINE MERCHANTS, LTD., AND THE BANK OF THE PHILIPPINE
ISLANDS.

The appellants, the Manila Wine Merchants. Ltd., and the Bank of the Philippine islands also
contend that the sum separately awarded Sonja Maria Lilius is conjugal property and therefore liable
for the payment of the private debts of her husband, Aleko E. Lilius, contracted during her marriage.

it is contended that the damages awarded for personal injury are not classified as separate property
of each of the spouses in article 1396 of the Civil Code and they should therefore be resumed
conjugal. In answer to this, article 1401 of the same Code, in enumerating the property belonging to
the conjugal partnership, does not mention damages for personal injury.

The question raised by these appellants is one of first impression in this jurisdiction and apparently
has never been passed upon by the Supreme Court of Spain.

The following comment is found in Colin y Capitant, Vol. 6, pages 217 and 218:

"No esta resuelta expresamente en la legislacion espa__ola la cuestion de si las indemnizaciones

debidas por accidentes del trabajo tienen la consideracion de gananciales o son bienes particulares
de los conyuges.

"Inclinan a la solucion de que estas indemnizaciones deben ser consideradas como gananciales, el
hecho de que la sociedad pierde la capacidad de trabajo con el accidente, que a ella le pertenece,
puesto que de la sociedad son los frutos de ese trabajo; en cambio, la consideracion de que de
igual manera que los bienes que sustituyen a los que cada conyuge lleva al matrimonio como
propios tienen el caracter de propios, hace pensar que las indemnizaciones que vengan a suplir la
capacidad de trabajo aportada por cada conyuge a la sociedad, deben ser juridicamente reputadas
como bienes propios del conyuge que haya sufrido el accidente. Asi se Ilega a la misma solucion
aportada por la jurisprudencia francesa.".

From the above it appears that there are two distinct theories as to whether damages rising from an
injury suffered by one of the spouses should be considered conjugal or separate property of the
injured spouse. The theory holding that such damages should form part of the conjugal partnership
property is based wholly on the proposition, also advanced by the Manila Wine Merchants, Ltd., that
by the injury the earning capacity of the injured spouse is diminished to the consequent prejudice of
the conjugal partnership.

Assuming the correctness of this theory, a reading of the decision of this court in G. R. No. 39587 will
show that the sum of P10,000 was awarded to Sonja Maria Lilius "by way of indemnity for
patrimonial and moral damages." The pertinent part of that decision on this point reads:
"Taking into consideration the fact that the plaintiff Sonja Maria Lilius, wife of the plaintiff Aleko E.
Lilius is-in the language of the court, which saw her at the trial "young and beautiful and the big scar,
which she has on her forehead caused by the lacerated wound received by her from the accident,
disfigures her face and that the fracture of her left leg has caused a permanent deformity which
renders it very difficult for her to walk', and taking into further consideration her social standing,
neither is the sum of P10,000, adjudicated to her by the said trial court by way, of indemnity for
patrimonial and moral damages, excessive.".

It should be added that the interest on that sum is part of the damages "patrimonial and moral"
awarded to Sonja Maria Lilius.

Furthermore it appears in the decision of the trial court in G. R. No. 39587 that Aleko E. Lilius
claimed the sum of P10,000 as damages on account of the loss of the services of Sonja Maria Lilius
as secretary and translator, her particular work as a member of the conjugal partnership. The trial
court disallowed this claim and neither of the plaintiffs in that case appealed to this court.

In view of the foregoing it is held that the sum of P10,000 with interest thereon awarded to Sonja
Maria Lilius as damages is paraphernal property.

The third assignment of error of the appellant Shuman, the second assignment of error of the
appellant Bank of the Philippine Islands and the sole assignment of error of the appellant Manila
Wine Merchants, Ltd., are overruled.

In its first assignment of error it is contended by the Bank of the Philippines Islands that by virtue of
its writ of garnishment served on the Manila Railroad Company of February 8, 1933, it acquired a
lilen superior to the preference granted by article 1924 of the Civil Code to prior judgments. This
error, if at all, is however non-prejudicial as the record shows that all the creditors declared by the
court as having a right to participate in the proceeds of the judgment in favor of Aleko E. Lilius were
so held by virtue of deeds of assignment executed prior to the date of the service of notice of the
bank's writ of garnishment on the Manila Railroad Company. These creditors are John R. McFie, jr.,
whose claim is based on a deed of assignment dated November 13, 1931, and Erlanger & Galinger,
Philippine Education Co., Inc., Hamilton Brown Shoe Co., Estrella del Norte and Eastern &
Philippine Shipping Agencies, Ltd., whose claims are based on a deed of assignment dated
November 17, 1931. As the record shows that whatever was left of the judgment in favor of Aleko E.
Lilius is not sufficient to pay in full the credits of the above mentioned creditors and furthermore, in
view of the fact that strictly speaking, there was no existing credit in favor of Aleko E. Lilius to be
garnished on February 3, 1933, as it had been assigned, before that date, to his creditors, this
assignment of error, therefore, must be overruled.

APPEAL OF THE THE MANILA MOTOR CO., INC.

The two error assigned by this appellant read as follows:

"I. The lower court erred in considering the date of the date judgment, Exhibit A, Manila Motor Co.,
Inc., instead of the date of the public document upon which it was based in determining the
preference among the several claims filed and litigated in this proceeding.

"ll. The lower court erred in not holding the claim of the claimant-appellant, Manila Motor Co., Inc.,
preferred over all other claims against Aleko E. Lilius evidenced by public instruments and final
judgments.".

The claimant has not proven that its credit is evidenced by a public document within the meaning of
article 1924 of the Civil Code. The only evidence offered by the Manila Motor Co., Inc., in support of
its claim of preference against the fund of Aleko E. Lilius was a certified copy of its judgment against
him in civil case No. 41159 of the Court of First Instance of Manila, together with a certified copy of
the writ of execution and the garnishment issued by virtue of said judgment. These documents
appear in the record as Exhibits A, B and C. The alleged public document evidencing its claim was
not offered in evidence and counsel of the Manila Motor Co., Inc., merely stated at the hearing in the
lower court that its judgment was based on a public document dated May 10, 1931. There is no
explanation as to why it was not presented as evidence along with Exhibits A, B, and C. In their brief
in this court, counsel for the Motor Co., Inc., merely assume that its credit is evidenced by a public
document dated may 10, 1931, because the court, in its judgment in said civil case No. 41159, refers
to a mortgage appearing in the evidence as Exhibit A, as the basis of its judgment, without
mentioning the date of the execution of the exhibit. This reference in said judgment to a mortgage is
not competent or satisfactory evidence as against third persons upon which to base a finding that
the Manila Motor Company's credit evidenced by a public document within the meaning of article
1924 of the Civil Code. This court is not authorized to make use of that judgment as a basis for its
findings of fact in this proceeding. This is shown by the decision of this court in the case of Martinez
vs. Diza 920 Phil., 498). In that syllabus of that decision it is stated:

"1. COURTS OF FIRST INSTANCE; JUDGMENT IN FORMER CIVIL ACTION AS BASIC FOR
FINDINGS OF FACT; ERROR.-A person who was not a party to a former civil action, or who did not
acquire his rights from one of the parties thereto after the entry of judgment therein, is not bound by
such judgment; nor can it be used against him as a basis for the findings of fact in a judgment
rendered in a subsequent action.".

But even if the court is authorized to accept the statement in that judgment as a basis for its finding
of fact in relation to this claim, still it would not establish the claim of preference of the Manila Motor
Co., Inc. Granting that a mortgage existed between the Manila Motor Co., Inc., and Aleko E. Lilius,
this does not warrant the conclusion that the instrument evidencing that mortgage is a public
document entitled to preference under article 1924 of the Civil Code. Under section 5 of Act No.
1507 as amended by Act No. 2496, a chattel does not have to be acknowledge before a notary
public. As against creditors and subsequent encumbrances, the law does require an affidavit of good
faith appended to the mortgage and recorded with it. (See Giberson vs. A. N. Jureidini Bros., 44
Phil., 216, and Betita vs. Ganzon, 49 Phil., 87.) A chattel mortgage may, however, be valid as
between the parties without such an affidavit of good faith. In 11 Corpus Juris, 482, the rule is
expressly stated that as between the parties and as to third persons who have no rights against the
mortgagor, no affidavit of good faith is necessary. It will thus be seen that under the law, a valid
mortgage may exist between the parties without its being evidenced by a public document. This
court would not be justified, merely from the reference by the lower court in that case to a mortgage,
in assuming that its date appears in a public document. if the Manila motor Co., Inc., desired to rely
upon a public document in the form of a mortgagor as establishing its preference in this case, it
should have offered that document in evidence, so that the court might satisfy itself as to its nature
and unquestionably fix the date of its execution. There is nothing either in the judgment relied upon
or in the evidence to show the date of said mortgage. The burden was upon the claimant to prove
that it actually had a public Code. It is essential that the nature and the date of the document be
established by competent evidence before the court can allow a preference as against the other
parties to this proceeding. Inasmuch as the claimant failed to establish its preference, based on a
public document, the lower court properly held that its claim against the said Aleko E. Lilius was
based on the final judgment in civil case No. 41159 of the Court of First Instance of Manila of May 3,
1932. The court, therefore, committed no error in holding that the claim of the Manila Motor Co., Inc.,
was inferior in preference to those of the appellees in this case.

This appellant's assignments of error are overulled.

In view of the foregoing the following portion of the dispositive part of the decision of the trial court is
affirmed.

"Por estas consideraciones, se ordena y se decreta (a) que del saldo de P8,219.54, que pertenece a
Sonja Maria LIllius y que se halla depositado en la Escribana del Juzgado, se pague po el Escribano
al Dr. W. H. Waterous la suma de mil quinientos pesos (P1,500), a Laura L. Shuman, seiscientos
sesenta y un pesos con trece centavos (P661.13, y al St. Paul's Hospital, quinientos diez y ocho
pesos con diez y ocho centavos (P518.18), y el remanente de cinco mil cuatrocientos setenta y siete
pesos con veinticuatro centavos (P5,477.24), a Sonja Maria Lililus, o su apoderado; (b) que del
saldo de P4,109.28 que pretence a Brita Marianne Lilius y que se halla deposito en la Escribania del
Juzgado, se pague por el Escribano a Laura Shuman, la suma de seicientos sesenta y un pesos
con trece centavos (P661.13); y al St. Paul's Hospital, quinientos diez y ocho pesos con diez y ocho
centavos (P518.18)y, y el sado de dos mil ochocientos sesenta y siete pesos con noventa y siete
centavos (P2,867.97), a Brita Marianne Lilius, por conducto de su tutor;".

The remaining portion of the dispositive part of the decision of the trial court is modified as follows:

"That from the sum of P13,181.33 pertaining to Aleko E. Lilius, which is deposited with the clerk of
the trial court, the following claims shall first be paid:
 Dr. W.H. Waterous P1,500.00

Dr. M. Marfori 250.00

Laura Lindley Shuman 661.13

John R. McFie, Jr. 500.00

and the balance of the sum pertaining to Aleko E. Lilius shall be divided among the following entities
in proportion to their respective claims:

Amount of
claim

Erlanger & Galinger, Inc. P3,672.76

Philippine Education Co., Inc. 3,695.20

Hamilton-Brown Shoe Co. 2045.00

Estrella del Norte 2,014.45

Eastern and Philippine Shipping Agencies, 470.38

Ltd.

So ordered without special pronouncement as to costs.

Malcolm, Villa-Real, Imperial, and Butte, JJ., concur.

 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-9331 July 31, 1957

JOSE A. ORTALIZ, plaintiff-appellant,

vs.
CORADO ECHARRI, defendant-appelee.

Parreno and Tonogbanua for appellant.

Hilado and Hilado for appellees.

ENDENCIA, J.:

Plaintiff-appellant seeks the reversal of the order of the Court of First Instance of Negros Occidental
dismissing the case on the ground that the complaint does not state a cause of action.

On February 19, 1953, plaintiff filed in the court below a complaint wherein, after stating the legal
personalities of the parties, he averred the following:

2. That the plaintiff is the lawful father of the child, Winston Ortaliz, had in legitimate wedlock
with Elena Lucasan;

3. That on or about December 18, 1953, at the corner of Washington and Justicia Streets,
Bacolod City, Philippines, the Studebaker Sedan Car with Plate No. 35-1138 of the
defendant struck the plaintiff's son, Winston Ortaliz, causing upon him physical injuries as a
result of which he was taken to the Occidental Negros Provincial Hospital as evidenced by
the medical certificate herewith attached and marked as Annex "A" of this complaint;

4. That the said Studebaker Sedan Car with Plate No. 35-1138 was at the time of the
accident, driven and controlled by Segundino Estanda, a driver under the employ of the
defendant, without due care and diligence and with negligence and recklessness and
violation of traffic rules and regulations;

5. That an information was filed in the Municipal Court of the City of Bacolod which was
docketed as Criminal Case No. 2607 against the said Segundino Estanda for the crime of
Slight Physical Inuries Through Reckless Imprudence, a copy of said information is hereto
attached marked as Annex "B" and made an integral part of this complaint;

6. That the said Segundino Estanda pleaded guilty to the crime charge in the Information and
he was finally sentenced to suffer the penalty of five (5) days of Arresto Menor and to pay the
costs in a Decision rendered in said case, copy of which Decision is hereto attached marked
as Annex "C" and made an integral part of this complaint;

7. That the said Decision, Annex "C" has long become final and said Segundino Estanda has
already served the penalty metted to him by virtue thereof; .

8. That the plaintiff has suffered damages in the form of expenses paid for the
hospitalization, medicines, physicians' fees and incidental expense of his son, Winston
Ortaliz, in the amount of P446.58;

9. That the plaintiff, by reason of the accident met by his said son, Winston Ortaliz, as above-
stated, through the fault, negligence and recklessness of Segundino Estanda for whose acts
the defendant is responsible because he was at the time employed by him (defendant) as his
 driver, has also suffered, because of the mental anguish, fright, serious anxiety, wounded
feelings and moral shock, moral damages in the amount of TWO THOUSAND PESOS
(P2,000), Philippine Currency;

10. That the boy, Winston Ortaliz, was strong, robust and happy before the accident that
caused on him physical Injuries which necessitated his hospitalization and medical attention,
and was not suffering nor had he ever suffered from any illness;

11. That demands have been made on the defendant to pay the plaintiff the sum of
P2,446.55 for actual, consequential and moral damages, but the defendants refused and still
refuses to pay the same and that by reason of the refusal of the defendant, the plaintiff was
forced to secure the services of an attorney paying the latter the sum of P500.

WHEREFORE, it is respectfully prayed that a decision be rendered;

1. Sentencing the defendant to pay the plaintiff the sum of P2,446.55 for the actual,
consequential and moral damages plus an additional sum of P500 for attorney's fees;

2. To pay the costs of this suit, and

3. Plaintiff be granted any other remedy that is just and equitable and proper in law.

On March 18, 1953, the defendant-appellee filed a motion to dismiss wherein, after admitting the
ownership of the Studebaker Sedan car with plate No. 35-1138, he alleged the following:

(a) That the case at bar is one for recovery of damages arising from the crime of Slight
Physical Injuries as borne out by the allegations of the complaint itself.

(b) That defendant is being sued in his capacity as the employer of the perpetrator of the
said crime, Segundino Estanda, and, as deducible from the allegations of the complaint, for
defendant's supposed subsidiary civil liability arising therefrom under the Revised Penal
Code.

(d) That the complaint does not allege that defendant was nor is engaged in any business or
industry in conjunction with which he has at any time used the said car, much less on the
occasion of the alleged accident, nor the defendant had at any time put out the said car for
hire.

(e) That the obligation or liability of defendant, if any, for the damages alleged in the
complaint, being an obligation arising from a criminal offense, is governed by Article 1161 of
the Civil Code, which, in turn, makes the penal laws applicable thereto.

(f) That, under Article 103 of the Revised Penal Code, it is essential, in order for an employer
to be liable subsidiarily for felonies committed by his employee, that the former be engaged
in some kind of industry, and that the employer had committed the crime in the discharge of
his duties in connection with such industry.

(g) That, therefore, defendant cannot be held subsidiarily liable for the crime committed by
his driver as alleged in plaintiff's complaint.

PREMISES CONSIDERED, defendant respectfully prays this Hon. Court to dismiss the
complaint, the same having failed to state a cause of action, with costs.

Thereafter the parties submitted their respective memoranda on whether the complaint failed to state
a cause of action and the Court, after taking into consideration the arguments advanced by the
parties, dismissed the complaint.
Plaintiff now contends that under paragraph 2 of Article 2884 of the Civil Code and paragraph 1 and
5 of Article 2180, a sufficient cause of action has been clearly alleged in the disputed complaint and
therefore the same should not have been dismissed. Article 2180 in part provides:

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

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 industry.

and Article 2184 in its last paragraph provides:

If the owner was not in the motor vehicle, the provisions of Article 2180 are applicable.

Having in view the aforequoted provisions of law and those of Article 2176 to the effect that
"Whoever by act or omission causes damage to another, there being fault or negligence, is obliged
to pay for the damage done", there seems to be good reason to support plaintiff's contention that the
complaint in question states sufficient cause of action. Defendant-appellee, however, claims that
there is no allegation in the complaint that "the defendant was engaged in some kind of industry and
that the employee had committed the crime in the discharge of his duties in connection with such
industry," hence the defendant cannot be held subsidiarily liable for the crime committed by his driver
and therefore the complaint failed to state facts sufficient to constitute a cause of action. But
paragraph 5 of Article 2180 refutes this contention for it clearly provides that "Employers shall be
liable for the damages caused by their employees acting within the scope of their assigned
tasks, even though the former are not engaged in any business or industry."

Defendant-appellee also contends that when the judgment in Criminal Case No. 2607 of the
Municipal Court of Bacolod was rendered against the driver Segundino Estanda, plaintiff did not
reserve the civil action and thus he lost his right thereto and consequently the present action against
the defendant-appellee would not lie. This contention, however, is untenable, for Article 33 of the
Civil Code clearly provides:

ART. 33. In cases of 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.

WHEREFORE, the order of dismissal entered by the lower court is hereby revoked and the case
remanded to said court for further proceedings. Without costs.

Paras, C.J., Bengzon, Padilla, Montemayor, Bautista Angelo, Labrador, Concepcion and Felix,
JJ., concur.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 46237 September 27, 1939

ROSALIO MARQUEZ, ET AL., plaintiffs-appellees,

vs.
BERNARDO CASTILLO, defendant-appellant.

A.L. Katigbak for appellant.

Teodorico Ona for appellee.

DIAZ, J.:

The plaintiffs and appellees surnamed Marquez sought to collect from the
defendant and appellant, in the Court of First Instance of Tayabas, an indemnity
in the sum of P4,900 for the death of Fernanda Marquez on whom they claim to
be dependent for support, which death was caused by the reckless imprudence
of Mariano Capulong, the defendant's chauffeur who ran over her on April 30,
1937, in the barrio of Lusacan of the municipality of Tiaong, Province of Tayabas.
The plaintiff and appellee Maria Chomacera, in turn, sought to collect from the
same defendant another indemnity in the sum of P100 for certain injuries
received by her from the same cause and under the same circumstances which
resulted in the death of said Fernanda Marquez.

The defendant defended himself by alleging that the death of Fernanda Marquez
was due to the exclusive fault and negligence of the chauffeur Mariano
Capulong, and that in the selection and employment of the latter, as such, in his
service, he exercised the due diligence of a good father of a family, so that he
should not be made to answer for the damages caused by the imprudence of
said employee. To this defense of the defendant, who at the same time alleged in
his answer a counterclaim seeking an indemnity in the sum of P300 for the
annoyance caused him by the plaintiffs, by compelling him to defend himself in
the case, thereby incurring expenses in order to secure the services of an
attorney, the plaintiffs and appellees filed a reply contending that it is of no avail
to the defendant to have exercised the due diligence of a good father of a family
in the selection and employment of the chauffeur Mariano Capulong claiming that
the latter was duly licensed as such chauffeur, because, under the provisions of
article 103 of the Revised Penal Code, he is, at any rate, bound subsidiarily to
answer for the civil liability of said servant, subordinate, employee or chauffeur,
for the reason that when the latter caused the death of the deceased Marquez,
he was in the employ of the defendant.
During the trial, the parties filed a stipulation of facts which appears inserted in
the appealed decision, as follows:

That Mariano Capulong is the same accused convicted and sentenced in

criminal case No. 7103 of this court, as evidenced by the judgment dated
May 6, 1937.

xxx xxx xxx

That said Mariano Capulong is insolvent, according to the investigations

conducted by us to this date.

1. That the defendant Bernardo Castillo has exercised due diligence as a

good father of a family in selecting the chauffeur Mariano Capulong, and
the plaintiffs admit that said chauffeur Mariano Capulong possesses an
automobile driver's license which, for purposes of identification, we request
to be marked as Exhibit A, as a conclusive evidence of his having
exercised due diligence.

2. That the defendant Bernardo Castillo is not engaged in any kind of

business or industry on or about April 30, 1937, the date of the accident.

3. That the defendant Bernardo Castillo was not riding in the car at the time
of the accident, and he did not know that his car was taken by the
chauffeur Mariano Capulong.

4. That, by reason of this complaint, the defendant has suffered damages

in the sum of P300 in order to prepare his defense.

That Fernanda Marquez, that is, the offended party in criminal case No.
7103, was earning at the rate of P1 a day on the date of her death; and
that said Fernanda Marquez was only 50 years old when she died.

That the co-plaintiff Maria Chomacera was earning at the rate of P1.20 a
day at the time she received the injuries mentioned in the above-stated
affidavit of Mariano Capulong, and that she incurred for her treatment
expenses amounting to P100, as alleged in the complaint, while Fernanda
Marquez spent for her burial and funeral the sum of P300, as alleged in the
complaint.

It should be noted that in said stipulation, there is a provision appearing in

paragraph 3 thereof, which reads as follows:

That the defendant Bernardo Castillo was not riding in the car at the time
of the accident, and he did not know that his car was taken by the
chauffeur Mariano Capulong.
This fact decides the question because it clearly shows that the accident did not
occur in the course of the performance of the duties or service for which said
chauffeur Mariano Capulong had been hired. The defendant did not hire him to
do as he pleased, using the defendant's car as if it were his own. His duties and
service were confined to driving his master's car as the latter ordered him, and
the accident did not take place under said circumstances. The subsidiary civil
liability of the master, according to the provisions of article 103 of said Revised
Penal Code, arises and takes place only when the servant, subordinate or
employee commits a punishable criminal act while in the actual performance of
his ordinary duties and service, and he is insolvent thereby rendering him
incapable of satisfying by himself his own civil liability.

The general rule regarding the obligation to repair the damage done, besides the
one established in article 103 of the Revised Penal Code, is that he, who by an
act or omission causes the damage through his fault or negligence, is the one
called upon to repair the same (art. 1902, Civil Code). This rule, which extends
only to cases mentioned in articles 1903 to 1910 of said Code, is in no way
applicable to the appellant, all the more so because, as the lower court makes
clear in its decision, neither was he in his car at the time of the accident for which
Mariano Capulong was sentenced to pay an indemnity of P500 to the heirs of the
deceased Marquez, nor was he negligent in the selection of his chauffeur, since
he hired in his service precisely one who is duly licensed to drive a car.

For the foregoing reasons, the appealed judgment is reversed, with the costs de
oficio.

So ordered.

Avancea, C.J., Villa-Real, Imperial, Laurel, Concepcion, and Moran, JJ., concur.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-9734 March 31, 1915

JUAN BAHIA, plaintiff-appellant,

vs.
FAUSTA LITONJUA, defendant-appellee,
and MARIANO LEYNES, defendant-appellant.

Felipe Agoncillo for appellant Bahia.

Ramon Diokno for appellee Litonjua.
Silvestre Apacible for appellant Leynes.

MORELAND, J.:

This is an appeal by the defendant Leynes from a judgment of the Court of First Instance of Manila
against him for the sum of P1,000, with costs; and by the plaintiff from Fausta Litonjua.

This is an action to recover damages from the defendants for the death of plaintiff's daughter alleged
to have been caused by the negligence of defendant's servant in driving an automobile over the child
and causing her death.

It appears from the evidence that one Ramon Ramirez was the owner and manager of a garage in
the city of Manila known as the International Garage. His mother, the defendant Fausta Litonjua,
sometime before the accident from which this action springs, purchased an automobile and turned it
over to the garage to assist her son in the business in which he was engaged. On the 14th of May,
1911, Ramirez rented the automobile so purchased and donated by his mother to the defendant
Mariano Leynes, together with a chauffeur and a machinist, to be used by him for a short time
between Balayan and Tuy, Province of Batangas, to carry persons living in Balayan to and from the
fiesta which was about to take place in Tuy. According to the arrangement between them, Ramires
was to furnish the automobile, chauffeur, and machinist, and the defendant Leynes was to pay him
therefor P20 a day.

On the 16th of May, 1911, while passing from Balayan to Tuy, the automobile, by reason of a defect
in the steering gear, refused to obey the direction of the driver in turning a corner in the streets of
Balayan, and, as a consequence, ran across the street and into the wall of a house against which
the daughter of plaintiff was leaning at the time. The font of the machine struck the child in the center
of the body and crushed her to death.

The action was brought against the mother of Ramirez, who bought the automobile, and Leynes,
under whose direction and control the automobile was being operated at the time of the accident.
Ramirez was not made a party. The plaintiff and the defendant Leynes appealed from the judgment,
the former on the ground that the court erred in dismissing the action as to the mother of Ramirez
and the latter from that portion of the judgment requiring him to pay to plaintiff P1,000.

We are of the opinion that the action was properly dismissed as to Fuasta Litonjua. It is a fact proved
in the action and undisputed that, although the mother purchased the automobile, she turned it over
to the garage of her son for use therein. The establishment belonged to the son, Ramon Ramirez,
and he had the full management and control of it and received all the profits therefrom. So far as
appears, the contract with Leynes was made without her knowledge or consent by Ramirez as the
owner and manager of the International Garage. While she may have been in one sense the owner
of the machine, that fact does not, under the other facts of the case, make her responsible for the
results of the accident.
We are of the opinion that the judgment against Leynes must be reversed and the complaint
dismissed as to him. While it may be said that, at the time of the accident, the chauffeur who was
driving the machine was a servant of Leynes, in as much as the profits derived from the trips of the
automobile belonged to him and the automobile was operated under his direction, nevertheless, this
fact is not conclusive in making him responsible for the negligence of the chauffeur or for defects in
the automobile itself. Article 1903 of the Civil Code not only establishes liability in cases of
negligence, but also provides when that 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 damages.

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 a law that there was negligence on the
part of the master or employer either in the selection of the servant or employee, or in supervision
over him after 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 employees shows to the
satisfaction of the court that in selection and supervision he has exercised the care and diligence of
a good father of a family, the presumption is overcome and he is relieved from liability.

This theory bases the responsibility of the master ultimately on his own negligence and not on that of
his servant. This is the notable peculiarly of the Spanish law negligence. It is, of course, in striking
contrast to the American doctrine that, in relations with strangers, the negligence of the servant is
conclusively the negligence of the master.

In the case before us the death of the child caused by a defect in the steering gear of the automobile
immediately raised the presumption that Leynes was negligent in selecting a defective automobile or
in his failure to maintain it in good condition after selection, and the burden of proof was on him to
show that he had exercised the care of a good father of a family. 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. From the
commencement of the use of the machine until the accident occurred sufficient time had not elapsed
to require an examination of the machine by the defendant as a part of his duty of inspection and
supervision. While it does not appear that the defendant formulated rules and regulations for the
guidance of the drivers and gave them proper instructions, designed for the protection of the public
and the passengers, the evidence shows, as we have seen, that the death of the child was not
caused by a failure to promulgate rules and regulations. It was caused by a defect in the machine as
to which the defendant has shown himself free from responsibility.

The defendant Leynes having shown to the satisfaction of the court that he exercised the care and
diligence of a good father of a family is relieved of responsibility with respect to the death of plaintiff's
child.

The judgment, in so far as it dismisses the complaint against Fausta Litonjua, is affirmed with costs,
and, in so far as to finds against Mariano Leynes, is reversed and the complaint as to his dismissed,
without special finding as to costs in this instance. So ordered.

Arellano, C.J., Torres, Johnson, Carson and Araullo, JJ., concur.

Trent, J., concurs in the result.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-32640 December 29, 1930

WALTER A. SMITH & CO., INC., plaintiff-appellant,

vs.
CADWALLADER GIBSON LUMBER COMPANY, defendant-appellee.

Jose Erquiaga for appellant.

DeWitt, Perkins and Brady for appellee.

VILLAMOR, J.:

On August 30, 1926, the steamer Helen C, belonging to the defendant, the Cadwallader Gibson
Lumber Co., under the command of Captain Miguel Lasal, in the course of its maneuvers to moor at
the plaintiff's wharf in the port of Olutanga, Zamboanga, struck said wharf, partially demolishing it
and throwing the timber piled thereon into the water. Whereupon the plaintiff brought the instant
action to recover of the defendant the sum of P9,705.83 as damages for the partial demolition of the
wharf and for the loss of the timber piled thereon.

The defendant denied the plaintiff's causes of action, and in defense alleged that the demolition of
the wharf was due to the excessive weight of thousands of board feet of timber piled upon it by the
plaintiff to be loaded and shipped on the steamer Helen C and to the bad condition of the piles
supporting said wharf.

In view of the evidence adduced by both parties, the trial court held that the defendant was not liable
for the partial collapse of the plaintiff's wharf, and for the loss of the timber piled thereon, dismissing
the complaint with costs against the plaintiff.

The judge who took cognizance of this cause held:

The evidence shows that said wharf was built in 1921 and repaired in 1925. The repairs,
according to the deposition of Wilson C. Smith, a witness for the plaintiff, consisted in
replacing 6 bents of piles leaving more than 9 old bents of piles without being replaced.
Therefore, the wharf of the plaintiff was old. The court is inclined to believe that the
steamer Helen C slightly struck the dock but not with force, for it was difficult for her to strike
it with force, as hereinbefore stated, and due to the bad condition of the dock the slight
impact was sufficient to destroy it. The bent of the piles toward the east side of the dock, as
may be seen from the pictures Exhibits E and F, after its destruction, does not necessarily
mean that the destruction of the wharf was caused by a strong impact, as the weight of the
60,000 board feet of lumber piled thereon, after such slight impact by the steamer against
the dock, might have caused said piles to lean toward that side.

We are of opinion that this finding is supported by the evidence. In this connection, it is to be noted
that the witness, Dionisio Pascua (for the plaintiff) testified that the 60,000 board feet occupied one-
fourth of the wharf. In other words, by the testimony of the plaintiff's witnesses it has been proved
that the plaintiff company piled up on the wharf a quantity of timber which exceeded its capacity of
resistance, because if the whole wharf had a capacity of 100,000 board feet of timber, one-fourth of
it could sustain one-fourth of that amount, or, about 25,000 board feet of timber. But it appears that
the plaintiff company loaded 60,000 board feet, weighing over 100 tons, within a space capable of
supporting only 25,000 board feet. This must have helped to bring about the collapse of the wharf on
the eastern side and the consequent sliding down of the timber piled up on one side.

The court below did not make any definite finding as to the negligence of the captain, but the plaintiff
apparently infers that there was negligence on his part, considering the testimony of its witness
Venancio Ignacio to the effect that the impact of the ship with the wharf was due to the excessive
force with which the captain, ordered the winches to work. This was denied by the captain, testifying
for the defendant. If, to this denial, we add the facts found by the trial court that said captain dropped
two anchors from the prow and the kedge-anchor from the poop, and besides, fastened two lines of
cables to the piles ordinarily used by vessels in docking at that wharf, as preliminary to drawing the
vessel alongside the wharf, it will be seen that said winches must have been carefully operated, and
if any force was employed in working them, it was doubtless due to the fact that the vessel had
already dropped anchor and could not move rapidly and the drawing of the vessel up to the wharf
was against the stream which flowed from east to west. We do not believe that the mere statement
of the witness Ignacio who has not been shown to possess technical knowledge of the maneuvers
for docking vessels, is sufficient to justify a holding that the force employed by the winches on that
occasion was excessive under the circumstances of the case, especially so if the captain's testimony
is to be considered, that the winches were carefully operated.

The witnesses for the plaintiff state that the steamer Helen C struck the wharf twice, but the trial
court, after examining the evidence, found said testimony to be exaggerated.

As has been stated, the plaintiff seeks to recover against the owner of the steamer Helen C, with
whom it had not contractual relations basing its action on the acts of Captain Lasa who was in
command of the vessel when docking at the plaintiff's wharf in Olutanga, Zamboanga. In support of
its contention, the plaintiff cites the doctrine laid down in the case of Ohta Development Co. vs.
Steamship Pompey (49 Phil., 117), wherein it was held that the defendant company, as ship-owner,
was liable for the indemnities arising from the lack of skill or from negligence of the captain.

In the case cited, the steamship Pompey, under the command of Captain Alfredo Galvez, was
carrying cargo consisting principally of flour and rice for the plaintiff. The ship docked with her bow
facing the land and fastened her cables to the posts on the pier. The evidence shows that heretofore
other ships docking alongside said pier had the bow facing the land and fastened a cable to a tree
situated farther west on the beach, a precaution taken to avoid the ship getting too close to the pier.
When the Pompey docked, at the time in question, she did not fasten the cable to the tree on the
shore, nor drop her kedge-anchors from the prow. After being docked, they proceeded to unload the
flour and rice which were first deposited on the pier and later transported to the plaintiff's warehouse
on land, where it was officially receipted for. The work of discharging and hauling the cargo to the
plaintiff's warehouse was accomplished without any intervention on the part of the plaintiff and
exclusively by laborers and the crew of the ship. The unloading of the cargo on to the pier was
hastily done and there being but fifteen or twenty laborers engaged in hauling it to the plaintiff's
warehouse, a large amount of cargo accumulated on the dock. At 11:10 that morning, the pier sank
with all the merchandise.

As may be noted, the facts in that case were different from those in the case in question. In the
former a contract of marine transportation existed between the plaintiff and the defendant, whereas
in the latter no previous contractual relation existed between the parties. For this reason, the case of
Ohta Development Co. was decided upon articles 587 and 618 of the Code of Commerce. But the
instant case, dealing, as it does, with an obligation arising from culpa aquiliana or negligence, must
be decided in accordance with articles 1902 and 1903 of the Civil Code.

Article 1902 of the Civil Code prescribes:

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.

And article 1903 of the said Code states:

 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, or in case of his death, or incapacity, the mother, is 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 any establishment or business are, in the same way, 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 and 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 subject thereto prove that
they exercised all the diligence of a good father of a family to prevent the damaged.

In the case of Maryland Casualty Co. vs. Matson Nav. Co. (177 Cal., 610, 612), in an action similar
to the present, the court held:

. . . the plaintiff could only recover, if at all, upon a sufficient showing of negligence on the
part of the defendants in the handling of their ship, as a result of which the injury complained
of arose; and if the finding of the trial court, to the effect that there was no negligence in
respect to the matter complained of on the part of the defendants, is sustained by sufficient
evidence, there is an end to the plaintiff's case.

The same doctrine was upheld by the Supreme Court of Spain in its judgment of June 23, 1900, in
deciding a case similar to the one at bar, where the plaintiff was a third person without any
contractual relation with the defendant before the acts were committed which gave rise to the
complaint. In that judgment, the court said:

. . . the action for damages caused by an act or omission arising from fault or negligence,
requires an allegation of one or the other of said causes, which is the basis of said action,
according to articles 1089, 1093, 1902, and 1903 of the Civil Code; and such proof must be
made by the plaintiff in accordance with the general principle of evidence regarding
obligations as laid down in article 1214; and it is not sufficient merely to suggest what at
any rate cannot be admitted that from the mere existence of damage, liability must be
presumed and that the defendant must rebut such a presumption.

And Manresa, committing on article 1902 of the Civil Code, among other things, says the following:

Among the questions most frequently raised and upon which the majority of cases have
been decided with respect to the application of this liability, are those referring to the
determination of the damage or prejudice, and to the fault or negligence of the person
responsible therefor.

These are the two indispensable factors in the obligations under discussion, for without
damage or prejudice there can be no liability, and although this element is present no
indemnity ca be awarded unless arising from some person's fault or negligence.
 With respect to the determination of damages, it must be definite and the injury must not be
occasioned by the performance of an obligation or by acts or omissions of the injured party
himself; and for the proof of the fault or negligence, mere suggestions or inadmissible
presumptions will not suffice, but such evidence must be adduced as to exclude all doubt
regarding their existence and relation to the injury, for, in order to give rise to an obligation,
there must be between the fault or negligence and the evil resulting therefrom a casual
relations. (12 Manresa, 601,602.).

In Cangco vs. Manila Railroad Co. (38 Phil., 768), this court held that article 1903 of the Civil Code is
not applicable to obligations arising from contracts, but only to obligations arising without any
agreement; or, to employ technical language, that article refers only to culpa aquiliana and not
to culpa contractual.

Manresa (vol. VIII, page 67) in his commentaries on articles 1103 and 1104 of the Civil Code
clearly sets forth this distinction, which was also recognized by this court in the case of
Rakes vs. Atlantic, Gulf and Pacific Co. (7 Phil., 359). In commenting upon article 1093 (Vol.
VIII, page 30) Manresa points out the difference between "culpa substantive and
independent, which, by itself, gives rise to an obligation between persons not formerly bound
by any other obligation" and culpa considered as an "incident in the performance of an
obligation which already existed. . . .

In the Rakes case (supra), this court based its decision expressly on the principle that article 1903 of
the Civil Code is not applicable to a culpa not arising from a contract.

On this point the court said:

The acts to which these articles (1902 and 1903 of the Civil Code) are applicable are
understood to be those not growing out or preexisting 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. (Rakes vs. Atlantic, Gulf and Pacific Co., 7 Phil., 359, 365.).

It is not true that proof of due diligence and care in the selection of and instructions to a servant
relieves the master of liability for the former's acts; on the contrary, such proof shows that the liability
never existed. As Manresa (vol. VIII, page 68) says, the liability arising from an extra-contractual
wrong is always based upon avoluntary act or omission, which, while free from any wrongful intent,
and due to mere negligence or carelessness, causes damaged to another. A master who takes all
possible precaution in selecting his servants or employees, bearing in mind the qualifications
necessary for the performance of the duties to be entrusted to them, and instructs them with equal
care, complies with his duty to all third parties to whom he is not bound under contract, and incurs no
liability if, by reason of the negligence of such servants though it be during the performance of their
duties as such, third parties should suffer damages. It is true that under article 1903 of the Civil
Code, the law presumes that the master, if regarded as an establishment, has been negligent in the
selection of, or instruction to, its servants, but that is a mere juris tantum presumption and is
destroyed by the evidence of due care and diligence in this respect.

The Supreme court of Porto Rico, construing identical provisions in the Civil Code of Porto Rico,
held that these articles are applicable only to cases of extra-contractual wrong.
(Carmona vs. Cuesta, 20 Porto Rico Reports, 215.)

This distinction was clearly stated by this court in Bahia vs. Litonjua and Leynes (930 Phil., 624),
wherein the action was based on the defendant's extra-contractual liability for damages occasioned
by the carelessness of an employee of his, in the performance of his duty as such. This court, after
citing the last paragraph of article 1903 of the Civil Code, held:

From this article two things are apparent: (1) That when an injury is caused by the
negligence of a servant or employee there instantly arises a presumption of law that there
 was negligence on the part of the master or employer either in the selection of the servant or
employee, or in supervision over him after the selection, or both; and (2) that the
presumption is juris tantum and not juris et de jure, and consequently, may be rebutted. it
follows necessarily that if the employer shows to the satisfaction of the court that in selection
and supervision he has exercised the care and diligence of a good father of a family, the
presumption is overcome and he is relieved from liability. lawphi1>net

This theory bases the responsibility of the master ultimately on his own negligence and not
on that of his servant. This is the notable peculiarity of the Spanish law of negligence. It is, of
course, in striking contrast to the American doctrine that, in relations with strangers, the
negligence of the servant is conclusively the negligence of the master.

The opinion of this court is thus expressed, to the effect that in case of extra-contractual wrong,
some fault personally imputable to the defendant must exist, and that the last paragraph of article
1903 only establishes a rebuttable presumption and is on all fours with Manresa's authoritative
opinion (Vol. XII, page 611), that the liability created by article 1903 is enforced by reason of non-
performance of duties inherent in the special relations of authority or superiority existing between the
person liable for the damage done and the person who by his act or omission has caused it.

The defendant contends in its answer that the captain and all the officers of the steamer Helen
C were duly licensed and authorized to hold their respective positions at the time when the wharf in
question collapsed, and that said captain, officers, and all the members of the crew of the steamer
had been chosen for their reputed skill in directing and navigating the steamer Helen C, safely,
carefully, and efficiently. The evidence shows that Captain Lasa at the time the plaintiff's wharf
collapse 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 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.
lawphi1>net

By virtue of the foregoing, the judgment appealed from must be as it is hereby, affirmed, with costs
against the appellant. So ordered.

Johnson, Street, Malcolm, Ostrand, Johns, Romualdez and Villa-Real, JJ., concur.
 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. 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 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 callmay 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 minor Ong
informed his elder brothers that he was going to the locker room to drink a bottle of coke but that
from that time on nobody knew what happened to him until his lifeless body was retrieved. The
doctrine of last clear chance simply means that the negligence of a claimant does not preclude a
recovery for the negligence of defendant where it appears that the latter, by exercising reasonable
care and prudence, might have avoided injurious consequences to claimant notwithstanding his
negligence. Or, "As the doctrine usually is stated, a person who has the last clear chance or
opportunity of avoiding an accident, notwithstanding the negligent acts of his opponent or the
negligence of a third person which is imputed to his opponent, is considered in law solely
responsible for the consequences of the accident." (38 Am. Jur. pp. 900-902)

It goes without saying that the plaintiff himself was not free from fault, for he was guilty of
antecedent negligence in planting himself in the wrong side of the road. But as we have
already stated, the defendant was also negligent; and in such case the problem always is to
discover which agent is immediately and directly responsible. It will be noted that the
negligent acts of the two parties were not contemporaneous, since the negligence of the
defendant succeeded the negligence of the plaintiff by an appreciable interval. Under these
circumstances, the law is that 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 the peril is or should have been discovered; at least in cases in which any previous
negligence of the party charged cannot be said to have contributed to the injury. O'Mally vs.
Eagan, 77 ALR 582, 43 Wyo. 233, 350, 2, P2d 1063. (A.L.R. Digest, Vol. 8, pp. 955-956)

Before closing, we wish to quote the following observation of the trial court, which we find supported
by the evidence: "There is (also) a strong suggestion coming from the expert evidence presented by
both parties that Dominador Ong might have dived where the water was only 5.5 feet deep, and in
so doing he might have hit or bumped his forehead against the bottom of the pool, as a
consequence of which he was stunned, and which to his drowning. As a boy scout he must have
received instructions in swimming. He knew, or have known that it was dangerous for him to dive in
that part of the pool."

Wherefore, the decision appealed from being in accordance with law and the evidence, we hereby
affirm the same, without pronouncement as to costs.

Paras, C. J., Bengzon, Padilla, Montemayor, Reyes, A., Concepcion, Reyes, J. B. L., Endencia and
Felix, JJ.,concur.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-48930 February 23, 1944

ANTONIO VAZQUEZ, petitioner,

vs.
FRANCISCO DE BORJA, respondent.

x---------------------------------------------------------x

G.R. No. L-48931 February 23, 1944

FRANCISCO DE BORJA, petitioner,

vs.
ANTONIO VAZQUEZ, respondent.

OZAETA, J.:

This action was commenced in the Court of First Instance of Manila by Francisco de Borja against
Antonio Vazquez and Fernando Busuego to recover from them jointly and severally the total sum of
P4,702.70 upon three alleged causes of action, to wit: First, that in or about the month of January,
1932, the defendants jointly and severally obligated themselves to sell to the plaintiff 4,000 cavans of
palay at P2.10 per cavan, to be delivered during the month of February, 1932, the said defendants
having subsequently received from the plaintiff in virtue of said agreement the sum of P8,400; that
the defendants delivered to the plaintiff during the months of February, March, and April, 1932, only
2,488 cavans of palay of the value of P5,224.80 and refused to deliver the balance of 1,512 cavans
of the value of P3,175.20 notwithstanding repeated demands. Second, that because of defendants'
refusal to deliver to the plaintiff the said 1,512 cavans of palay within the period above mentioned,
the plaintiff suffered damages in the sum of P1,000. And, third, that on account of the agreement
above mentioned the plaintiff delivered to the defendants 4,000 empty sacks, of which they returned
to the plaintiff only 2,490 and refused to deliver to the plaintiff the balance of 1,510 sacks or to pay
their value amounting to P377.50; and that on account of such refusal the plaintiff suffered damages
in the sum of P150.

The defendant Antonio Vazquez answered the complaint, denying having entered into the contract
mentioned in the first cause of action in his own individual and personal capacity, either solely or
together with his codefendant Fernando Busuego, and alleging that the agreement for the purchase
of 4,000 cavans of palay and the payment of the price of P8,400 were made by the plaintiff with and
to the Natividad-Vasquez Sabani Development Co., Inc., a corporation organized and existing under
the laws of the Philippines, of which the defendant Antonio Vazquez was the acting manager at the
time the transaction took place. By way of counterclaim, the said defendant alleged that he suffered
damages in the sum of P1,000 on account of the filing of this action against him by the plaintiff with
full knowledge that the said defendant had nothing to do whatever with any and all of the
transactions mentioned in the complaint in his own individual and personal capacity.

The trial court rendered judgment ordering the defendant Antonio Vazquez to pay to the plaintiff the
sum of P3,175.20 plus the sum of P377.50, with legal interest on both sums, and absolving the
defendant Fernando Busuego (treasurer of the corporation) from the complaint and the plaintiff from
the defendant Antonio Vazquez' counterclaim. Upon appeal to the Court of Appeals, the latter
modified that judgment by reducing it to the total sum of P3,314.78, with legal interest thereon and
the costs. But by a subsequent resolution upon the defendant's motion for reconsideration, the Court
of Appeals set aside its judgment and ordered that the case be remanded to the court of origin for
further proceedings. The defendant Vazquez, not being agreeable to that result, filed the present
petition for certiorari (G.R. No. 48930) to review and reverse the judgment of the Court of Appeals;
and the plaintiff Francisco de Borja, excepting to the resolution of the Court of Appeals whereby its
original judgment was set aside and the case was ordered remanded to the court of origin for further
proceedings, filed a cross-petition for certiorari (G.R. No. 48931) to maintain the original judgment of
the Court of Appeals.
The original decision of the Court of Appeals and its subsequent resolutions on reconsideration read
as follows:

Es hecho no controvertido que el 25 de Febrero de 1932, el demandado-apelante vendio al

demandante 4,000 cavanes de palay al precio de P2.10 el cavan, de los cuales, dicho
demandante solamente recibio 2,583 cavanes; y que asimismo recibio para su envase 4,000
sacos vacios. Esta provbado que de dichos 4,000 sacos vacios solamente se entregaron,
2,583 quedando en poder del demandado el resto, y cuyo valor es el de P0.24 cada uno.
Presentada la demanda contra los demandados Antonio Vazquez y Fernando Busuego para
el pago de la cantidad de P4,702.70, con sus intereses legales desde el 1.o de marzo de
1932 hasta su completo pago y las costas, el Juzgado de Primera Instancia de Manila el
asunto condenando a Antonio Vazquez a pagar al demandante la cantidad de P3,175.20,
mas la cantidad de P377.50, con sus intereses legales, absolviendo al demandado
Fernando Busuego de la demanda y al demandante de la reconvencion de los demandados,
sin especial pronunciamiento en cuanto a las costas. De dicha decision apelo el demandado
Antonio Vazquez, apuntado como principal error el de que el habia sido condenado
personalmente, y no la corporacion por el representada.

Segun la preponderancia de las pruebas, la venta hecha por Antonio Vazquez a favor de
Francisco de Borja de los 4,000 cavanes de palay fue en su capacidad de Presidente
interino y Manager de la corporacion Natividad-Vazquez Sabani Development Co., Inc. Asi
resulta del Exh. 1, que es la copia al carbon del recibo otorgado por el demandado Vazquez,
y cuyo original lo habia perdido el demandante, segun el. Asi tambien consta en los libros de
la corporacion arriba mencionada, puesto que en los mismos se ha asentado tanto la
entrada de los P8,400, precio del palay, como su envio al gobierno en pago de los alquileres
de la Hacienda Sabani. Asi mismo lo admitio Francisco de Borja al abogado Sr. Jacinto
Tomacruz, posterior presidente de la corporacion sucesora en el arrendamiento de la Sabani
Estate, cuando el solicito sus buenos oficios para el cobro del precio del palay no entregado.
Asi igualmente lo declaro el que hizo entrega de parte del palay a Borja, Felipe Veneracion,
cuyo testimonio no ha sido refutado. Y asi se deduce de la misma demanda, cuando se
incluyo en ella a Fernando Busuego, tesorero de la Natividad-Vazquez Sabani Development
Co., Inc.

Siendo esto asi, la principal responsable debe ser la Natividad-Vazquez Sabani

Development Co., Inc., que quedo insolvente y dejo de existir. El Juez sentenciador declaro,
sin embargo, al demandado Vazquez responsable del pago de la cantidad reclamada por su
negligencia al vender los referidos 4,000 cavanes de palay sin averiguar antes si o no dicha
cantidad existia en las bodegas de la corporacion.

Resulta del Exh. 8 que despues de la venta de los 4,000 cavanes de palay a Francisco de
Borja, el mismo demandado vendio a Kwong Ah Phoy 1,500 cavanes al precio de P2.00 el
cavan, y decimos 'despues' porque esta ultima venta aparece asentada despues de la
primera. Segun esto, el apelante no solamente obro con negligencia, sino interviniendo
culpa de su parte, por lo que de acuerdo con los arts. 1102, 1103 y 1902 del Codigo Civil, el
debe ser responsable subsidiariamente del pago de la cantidad objecto de la demanda.

En meritos de todo lo expuesto, se confirma la decision apelada con la modificacion de que

el apelante debe pagar al apelado la suma de P2,295.70 como valor de los 1,417 cavanes
de palay que dejo de entregar al demandante, mas la suma de P339.08 como importe de los
1,417 sacos vacios, que dejo de devolver, a razon de P0.24 el saco, total P3,314.78, con
sus intereses legales desde la interposicion de la demanda y las costas de ambas
instancias.

Vista la mocion de reconsideracion de nuestra decision de fecha 13 de Octubre de 1942, y

alegandose en la misma que cuando el apelante vendio los 1,500 cavanes de palay a Ah
Phoy, la corporacion todavia tenia bastante existencia de dicho grano, y no estando dicho
extremo suficientemente discutido y probado, y pudiendo variar el resultado del asunto,
dejamos sin efecto nuestra citada decision, y ordenamos la devolucion de la causa al
Juzgado de origen para que reciba pruebas al efecto y dicte despues la decision
correspondiente.

Upon consideration of the motion of the attorney for the plaintiff-appellee in case CA-G.R.
No. 8676,Francisco de Borja vs. Antonio Vasquez et al., praying, for the reasons therein
given, that the resolution of December 22, 1942, be reconsidered: Considering that said
 resolution remanding the case to the lower court is for the benefit of the plaintiff-appellee to
afford him opportunity to refute the contention of the defendant-appellant Antonio Vazquez,
motion denied.

The action is on a contract, and the only issue pleaded and tried is whether the plaintiff entered into
the contract with the defendant Antonio Vazquez in his personal capacity or as manager of the
Natividad-Vazquez Sabani Development Co., Inc. The Court of Appeals found that according to the
preponderance of the evidence "the sale made by Antonio Vazquez in favor of Francisco de Borja of
4,000 cavans of palay was in his capacity as acting president and manager of the corporation
Natividad-Vazquez Sabani Development Co., Inc." That finding of fact is final and, it resolving the
only issue involved, should be determinative of the result.

The Court of Appeals doubly erred in ordering that the cause be remanded to the court of origin for
further trial to determine whether the corporation had sufficient stock of palay at the time appellant
sold, 1500 cavans of palay to Kwong Ah Phoy. First, if that point was material to the issue, it should
have been proven during the trial; and the statement of the court that it had not been sufficiently
discussed and proven was no justification for ordering a new trial, which, by the way, neither party
had solicited but against which, on the contrary, both parties now vehemently protest. Second, the
point is, in any event, beside the issue, and this we shall now discuss in connection with the original
judgment of the Court of Appeals which the plaintiff cross-petitioner seeks to maintain.

The action being on a contract, and it appearing from the preponderance of the evidence that the
party liable on the contract is the Natividad-Vazquez Sabani Development Co., Inc. which is not a
party herein, the complaint should have been dismissed. Counsel for the plaintiff, in his brief as
respondent, argues that altho by the preponderance of the evidence the trial court and the Court of
Appeals found that Vazquez celebrated the contract in his capacity as acting president of the
corporation and altho it was the latter, thru Vazquez, with which the plaintiff had contracted and
which, thru Vazquez, had received the sum of P8,400 from Borja, and altho that was true from the
point of view of a legal fiction, "ello no impede que tambien sea verdad lo alegado en la demanda de
que la misma persona de Vasquez fue la que contrato con Borja y que la misma persona de
Vasquez fue quien recibio la suma de P8,400." But such argument is invalid and insufficient to show
that the president of the corporation is personally liable on the contract duly and lawfully entered into
by him in its behalf.

It is well known that a corporation is an artificial being invested by law with a personality of its own,
separate and distinct from that of its stockholders and from that of its officers who manage and run
its affairs. The mere fact that its personality is owing to a legal fiction and that it necessarily has to
act thru its agents, does not make the latter personally liable on a contract duly entered into, or for
an act lawfully performed, by them for an in its behalf. The legal fiction by which the personality of a
corporation is created is a practical reality and necessity. Without it no corporate entities may exists
and no corporate business may be transacted. Such legal fiction may be disregarded only when an
attempt is made to use it as a cloak to hide an unlawful or fraudulent purpose. No such thing has
been alleged or proven in this case. It has not been alleged nor even intimated that Vazquez
personally benefited by the contract of sale in question and that he is merely invoking the legal
fiction to avoid personal liability. Neither is it contended that he entered into said contract for the
corporation in bad faith and with intent to defraud the plaintiff. We find no legal and factual basis
upon which to hold him liable on the contract either principally or subsidiarily.

The trial court found him guilty of negligence in the performance of the contract and held him
personally liable on that account. On the other hand, the Court of Appeals found that he "no
solamente obro con negligencia, sino interveniendo culpa de su parte, por lo que de acuerdo con los
arts. 1102, 1103 y 1902 del Codigo Civil, el debe ser responsable subsidiariamente del pago de la
cantidad objeto de la demanda." We think both the trial court and the Court of Appeals erred in law in
so holding. They have manifestly failed to distinguish a contractual from an extracontractual
obligation, or an obligation arising from contract from an obligation arising from culpa aquiliana. The
fault and negligence referred to in articles 1101-1104 of the Civil Code are those incidental to the
fulfillment or nonfullfillment of a contractual obligation; while the fault or negligence referred to in
article 1902 is the culpa aquiliana of the civil law, homologous but not identical to tort of the common
law, which gives rise to an obligation independently of any contract. (Cf. Manila R.R. Co. vs. Cia.
Trasatlantica, 38 Phil., 875, 887-890; Cangco vs. Manila R.R. Co., 38 Phil. 768.) The fact that the
corporation, acting thru Vazquez as its manager, was guilty of negligence in the fulfillment of the
contract, did not make Vazquez principally or even subsidiarily liable for such negligence. Since it
was the corporation's contract, its nonfulfillment, whether due to negligence or fault or to any other
cause, made the corporation and not its agent liable.
On the other hand if independently of the contract Vazquez by his fault or negligence cause
damaged to the plaintiff, he would be liable to the latter under article 1902 of the Civil Code. But then
the plaintiff's cause of action should be based on culpa aquiliana and not on the contract alleged in
his complaint herein; and Vazquez' liability would be principal and not merely subsidiary, as the
Court of Appeals has erroneously held. No such cause of action was alleged in the complaint or tried
by express or implied consent of the parties by virtue of section 4 of Rule 17. Hence the trial court
had no jurisdiction over the issue and could not adjudicate upon it (Reyes vs. Diaz, G.R. No. 48754.)
Consequently it was error for the Court of Appeals to remand the case to the trial court to try and
decide such issue.

It only remains for us to consider petitioner's second assignment of error referring to the lower
courts' refusal to entertain his counterclaim for damages against the respondent Borja arising from
the bringing of this action. The lower courts having sustained plaintiff's action. The finding of the
Court of Appeals that according to the preponderance of the evidence the defendant Vazquez
celebrated the contract not in his personal capacity but as acting president and manager of the
corporation, does not warrant his contention that the suit against him is malicious and tortious; and
since we have to decide defendant's counterclaim upon the facts found by the Court of Appeals, we
find no sufficient basis upon which to sustain said counterclaim. Indeed, we feel that a a matter of
moral justice we ought to state here that the indignant attitude adopted by the defendant towards the
plaintiff for having brought this action against him is in our estimation not wholly right. Altho from the
legal point of view he was not personally liable for the fulfillment of the contract entered into by him
on behalf of the corporation of which he was the acting president and manager, we think it was his
moral duty towards the party with whom he contracted in said capacity to see to it that the
corporation represented by him fulfilled the contract by delivering the palay it had sold, the price of
which it had already received. Recreant to such duty as a moral person, he has no legitimate cause
for indignation. We feel that under the circumstances he not only has no cause of action against the
plaintiff for damages but is not even entitled to costs.

The judgment of the Court of Appeals is reversed, and the complaint is hereby dismissed, without
any finding as to costs.

Yulo, C.J., Moran, Horrilleno and Bocobo, JJ., concur.

Separate Opinions

PARAS, J., dissenting:

Upon the facts of this case as expressly or impliedly admitted in the majority opinion, the plaintiff is
entitled to a judgment against the defendant. The latter, as acting president and manager of
Natividad-Vazquez Sabani Development Co., Inc., and with full knowledge of the then insolvent
status of his company, agreed to sell to the plaintiff 4,000 cavans of palay. Notwithstanding the
receipt from the plaintiff of the full purchase price, the defendant delivered only 2,488 cavans and
failed and refused to deliver the remaining 1,512 cavans and failed and refused to deliver the
remaining 1,512 cavans and a quantity of empty sacks, or their value. Such failure resulted,
according to the Court of First Instance of Manila and the Court of Appeals, from his fault or
negligence.

It is true that the cause of action made out by the complaint is technically based on a contract
between the plaintiff and Natividad-Vazquez Sabani Development Co., Inc. which is not a party to
this case. Nevertheless, inasmuch as it was proven at the trial that the defendant was guilty of fault
in that he prevented the performance of the plaintiff's contract and also of negligence bordering on
fraud which cause damage to the plaintiff, the error of procedure should not be a hindrance to the
rendition of a decision in accordance with the evidence actually introduced by the parties, especially
when in such a situation we may order the necessary amendment of the pleadings, or even consider
them correspondingly amended.

As already stated, the corporation of which the defendant was acting president and manager was, at
the time he made the sale of the plaintiff, known to him to be insolvent. As a matter of fact, said
corporation was soon thereafter dissolved. There is admitted damage on the part of the plaintiff,
proven to have been inflicted by reason of the fault or negligence of the defendant. In the interest of
simple justice and to avoid multiplicity of suits I am therefore impelled to consider the present action
as one based on fault or negligence and to sentence the defendant accordingly. Otherwise, he would
be allowed to profit by his own wrong under the protective cover of the corporate existence of the
company he represented. It cannot be pretended that any advantage under the sale inured to the
benefit of Natividad-Vazquez Sabani Development Co., Inc. and not of the defendant personally,
since the latter undoubtedly owned a considerable part of its capital.