1

G.R. No. 116123, March 13, 1997

SERGIO F. NAGUIAT, DOING BUSINESS UNDER THE NAME AND STYLE SERGIO F. NAGUIAT ENT.,
INC., & CLARK FIELD TAXI, INC., PETITIONERS, VS. NATIONAL LABOR RELATIONS COMMISSION
(THIRD DIVISION), NATIONAL ORGANIZATION OF WORKINGMEN AND ITS MEMBERS, LEONARDO T.
GALANG, ET AL., RESPONDENTS.

DECISION
PANGANIBAN, J.:

Are private respondent-employees of petitioner Clark Field Taxi, Inc., who were separated from service due to the closure
of Clark Air Base, entitled to separation pay and, if so, in what amount? Are officers of corporations ipso facto liable jointly
and severally with the companies they represent for the payment of separation pay?

These questions are answered by the Court in resolving this petition for certiorari under Rule 65 of the Rules of Court
assailing the Resolutions of the National Labor Relations Commission (Third Division)[1] promulgated on February 28,
1994,[2] and May 31, 1994.[3] The February 28, 1994 Resolution affirmed with modifications the decision[4] of Labor
Arbiter Ariel C. Santos in NLRC Case No. RAB-III-12-2477-91. The second Resolution denied the motion for
reconsideration of herein petitioners.

The NLRC modified the decision of the labor arbiter by granting separation pay to herein individual respondents in the
increased amount of US$120.00 for every year of service or its peso equivalent, and holding Sergio F. Naguiat
Enterprises, Inc., Sergio F. Naguiat and Antolin T. Naguiat, jointly and severally liable with Clark Field Taxi, Inc. ("CFTI").

The Facts

The following facts are derived from the records of the case:

Petitioner CFTI held a concessionaire's contract with the Army Air Force Exchange Services ("AAFES") for the operation
of taxi services within Clark Air Base. Sergio F. Naguiat was CFTI's president, while Antolin T. Naguiat was its vice-
president. Like Sergio F. Naguiat Enterprises, Incorporated ("Naguiat Enterprises"), a trading firm, it was a family-owned
corporation.

Individual respondents were previously employed by CFTI as taxicab drivers. During their employment, they were
required to pay a daily "boundary fee" in the amount of US$26.50 for those working from 1:00 a.m. to 12:00 noon, and
US$27.00 for those working from 12:00 noon to 12:00 midnight. All incidental expenses for the maintenance of the
vehicles they were driving were accounted against them, including gasoline expenses.

The drivers worked at least three to four times a week, depending on the availability of taxicabs. They earned not less
than US$15.00 daily. In excess of that amount, however, they were required to make cash deposits to the company,
which they could later withdraw every fifteen days.

Due to the phase-out of the US military bases in the Philippines, from which Clark Air Base was not spared, the AAFES
was dissolved, and the services of individual respondents were officially terminated on November 26, 1991.

The AAFES Taxi Drivers Association ("drivers' union"), through its local president, Eduardo Castillo, and CFTI held
negotiations as regards separation benefits that should be awarded in favor of the drivers. They arrived at an agreement
that the separated drivers will be given P500.00 for every year of service as severance pay. Most of the drivers accepted
said amount in December 1991 and January 1992. However, individual respondents herein refused to accept theirs.

Instead, after disaffiliating themselves from the drivers' union, individual respondents, through the National Organization of
Workingmen ("NOWM"), a labor organization which they subsequently joined, filed a complaint[5] against "Sergio F.
Naguiat doing business under the name and style Sergio F. Naguiat Enterprises, Inc., Army-Air Force Exchange Services
(AAFES) with Mark Hooper as Area Service Manager, Pacific Region, and AAFES Taxi Drivers Association with Eduardo
Castillo as President," for payment of separation pay due to termination/phase-out. Said complaint was later amended[6]
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to include additional taxi drivers who were similarly situated as complainants, and CFTI with Antolin T. Naguiat as vice
president and general manager, as party respondent.
In their complaint, herein private respondents alleged that they were regular employees of Naguiat Enterprises, although
their individual applications for employment were approved by CFTI. They claimed to have been assigned to Naguiat
Enterprises after having been hired by CFTI, and that the former thence managed, controlled and supervised their
employment. They averred further that they were entitled to separation pay based on their latest daily earnings of
US$15.00 for working sixteen (16) days a month.

In their position paper submitted to the labor arbiter, herein petitioners claimed that the cessation of business of CFTI on
November 26, 1991, was due to "great financial losses and lost business opportunity" resulting from the phase-out of
Clark Air Base brought about by the Mt. Pinatubo eruption and the expiration of the RP-US military bases agreement.
They admitted that CFTI had agreed with the drivers' union, through its President Eduardo Castillo who claimed to have
had blanket authority to negotiate with CFTI in behalf of union members, to grant its taxi driver-employees separation pay
equivalent to P500.00 for every year of service.

The labor arbiter, finding the individual complainants to be regular workers of CFTI, ordered the latter to pay them
P1,200.00 for every year of service "for humanitarian consideration," setting aside the earlier agreement between CFTI
and the drivers' union of P500.00 for every year of service. The labor arbiter rejected the allegation of CFTI that it was
forced to close business due to "great financial losses and lost business opportunity" since, at the time it ceased
operations, CFTI was profitably earning and the cessation of its business was due to the untimely closure of Clark Air
Base. In not awarding separation pay in accordance with the Labor Code, the labor-arbiter explained:

"To allow respondents exemption from its (sic) obligation to pay separation pay would be inhuman to complainants but to
impose a monetary obligation to an employer whose profitable business was abruptly shot (sic) down by force majeure
would be unfair and unjust to say the least."[7]
and thus, simply awarded an amount for "humanitarian consideration."

Herein individual private respondents appealed to the NLRC. In its Resolution, the NLRC modified the decision of the
labor arbiter by granting separation pay to the private respondents. The concluding paragraphs of the NLRC Resolution
read:

"The contention of complainant is partly correct. One-half month salary should be US$120.00 but this amount can not be
paid to the complainant in U.S. Dollar which is not the legal tender in the Philippines. Paras, in commenting on Art. 1249
of the New Civil Code, defines legal tender as 'that which a debtor may compel a creditor to accept in payment of the
debt. The complainants who are the creditors in this instance can be compelled to accept the Philippine peso which is the
legal tender, in which case, the table of conversion (exchange rate) at the time of payment or satisfaction of the judgment
should be used. However, since the choice is left to the debtor, (respondents) they may choose to pay in US dollar.'
(Phoenix Assurance Co. vs. Macondray & Co. Inc., L-25048, May 13, 1975)

In discharging the above obligations, Sergio F. Naguiat Enterprises, which is headed by Sergio F. Naguiat and Antolin
Naguiat, father and son at the same time the President and Vice-President and General Manager, respectively, should be
joined as indispensable party whose liability is joint and several. (Sec. 7, Rule 3, Rules of Court)"[8]
As mentioned earlier, the motion for reconsideration of herein petitioners was denied by the NLRC. Hence, this petition
with prayer for issuance of a temporary restraining order. Upon posting by the petitioners of a surety bond, a temporary
restraining order[9] was issued by this Court enjoining execution of the assailed Resolutions.

Issues

The petitioners raise the following issues before this Court for resolution:

"I. Whether or not public respondent NLRC (3rd Div.) committed grave abuse of discretion amounting to lack of jurisdiction
in issuing the appealed resolution;

II. Whether or not Messrs. Teofilo Rafols and Romeo N. Lopez could validly represent herein private respondents; and,

III. Whether or not the resolution issued by public respondent is contrary to law."[10]
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Petitioners also submit two additional issues by way of a supplement[11] to their petition, to Wit: that Petitioners Sergio F.
Naguiat and Antolin Naguiat were denied due process; and that petitioners were not furnished copies of private
respondents' appeal to the NLRC. As to the procedural lapse of insufficient copies of the appeal, the proper forum before
which petitioners should have raised it is the NLRC. They, however, failed to question this in their motion for
reconsideration. As a consequence, they are deemed to have waived the same and voluntarily submitted themselves to
the jurisdiction of the appellate body.

Anent the first issue raised in their original petition, petitioners contend that NLRC committed grave abuse of discretion
amounting to lack or excess of jurisdiction in unilaterally increasing the amount of severance pay granted by the labor
arbiter. They claim that this was not supported by substantial evidence since it was based simply on the self-serving
allegation of respondents that their monthly take-home pay was not lower than $240.00.

On the second issue, petitioners aver that NOWM cannot make legal representations in behalf of individual respondents
who should, instead, be bound by the decision of the union (AAFES Taxi Drivers Association) of which they were
members.

As to the third issue, petitioners incessantly insist that Sergio F. Naguiat Enterprises, Inc. is a separate and distinct
juridical entity which cannot be held jointly and severally liable for the obligations of CFTI. And similarly, Sergio F. Naguiat
and Antolin Naguiat were merely officers and stockholders of CFTI and, thus, could not be held personally accountable for
corporate debts.

Lastly, Sergio and Antolin Naguiat assail the Resolution of NLRC holding them solidarily liable despite not having been
impleaded as parties to the complaint.

Individual respondents filed a comment separate from that of NOWM. In sum, both aver that petitioners had the
opportunity but failed to refute, the taxi drivers' claim of having an average monthly earning of $240.00; that individual
respondents became members of NOWM after disaffiliating themselves from the AAFES Taxi Drivers Association which,
through the manipulations of its President Eduardo Castillo, unconscionably compromised their separation pay; and that
Naguiat Enterprises, being their indirect employer, is solidarily liable under the law for violation of the Labor Code, in this
case, for nonpayment of their separation pay.

The Solicitor General unqualifiedly supports the allegations of private respondents. In addition, he submits that the
separate personalities of respondent corporations and their officers should be disregarded and considered one and the
same as these were used to perpetrate injustice to their employees.

The Court's Ruling

As will be discussed below, the petition is partially meritorious.

First Issue: Amount of Separation Pay

Firmly, we reiterate the rule that in a petition for certiorari filed pursuant to Rule 65 of the Rules of Court, which is the only
way a labor case may reach the Supreme Court, the petitioner/s must clearly show that the NLRC acted without or in
excess of jurisdiction or with grave abuse of discretion.[12]

Long-standing and well-settled in Philippine jurisprudence is the judicial dictum that findings of fact of administrative
agencies and quasi-judicial bodies, which have acquired expertise because their jurisdiction is confined to specific
matters, are generally accorded not only great respect but even finality; and are binding upon this Court unless there is a
showing of grave abuse of discretion, or where it is clearly shown that they were arrived at arbitrarily or in disregard of the
evidence on record.[13]

Nevertheless, this Court carefully perused the records of the instant case if only to determine whether public respondent
committed grave abuse of discretion, amounting to lack of jurisdiction, in granting the clamor of private respondents that
their separation pay should be based on the amount of $240.00, allegedly their minimum monthly earnings as taxi drivers
of petitioners.
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In their amended complaint before the Regional Arbitration Branch in San Fernando, Pampanga, herein private
respondents set forth in detail the work schedule and financial arrangement they had with their employer. Therefrom they
inferred that their monthly take-home pay amounted to not less than $240.00. Herein petitioners did not bother to refute
nor offer any evidence to controvert said allegations. Remaining undisputed, the labor arbiter adopted such facts in his
decision. Petitioners did not even appeal from the decision of the labor arbiter nor manifest any error in his findings and
conclusions. Thus, petitioners are in estoppel for not having questioned such facts when they had all opportunity to do so.
Private respondents, like petitioners, are bound by the factual findings of Respondent Commission.

Petitioners also claim that the closure of their taxi business was due to great financial losses brought about by the
eruption of Mt. Pinatubo which made the roads practically impassable to their taxicabs. Likewise well-settled is the rule
that business losses or financial reverses, in order to sustain retrenchment of personnel or closure of business and
warrant exemption from payment of separation pay, must be proved with clear and satisfactory evidence.[14] The records,
however, are devoid of such evidence.

The labor arbiter; as affirmed by NLRC, correctly found that petitioners stopped their taxi business within Clark Air Base
because of the phase-out of U.S. military presence thereat. It was not due to any great financial loss because petitioners'
taxi business was earning profitably at the time of its closure.

With respect to the amount of separation pay that should be granted, Article 283 of the Labor Code provides:

"x x x In case of retrenchment to prevent losses and in cases of closures or cessation of operations of establishment or
undertaking not due to serious business losses or financial reverses, the separation pay shall be equivalent to one (1)
month pay or at least one-half () month pay for every year of service, whichever is higher. A fraction of at least six (6)
months shall be considered one (1 ) whole year."

Considering the above, we find that NLRC did not commit grave abuse of discretion in ruling that individual respondents
were entitled to separation pay[15] in the amount $120.00 (one-half of $240.00 monthly pay) or its peso equivalent for
every year of service.

Second Issue: NOWM's Personality to

Represent Individual Respondents-Employees

On the question of NOWM's authority to represent private respondents, we hold petitioners in estoppel for not having
seasonably raised this issue before the labor arbiter or the NLRC. NOWM was already a party-litigant as the organization
representing the taxi driver-complainants before the labor arbiter. But petitioners who were party-respondents in said
complaint did not assail the juridical personality of NOWM and the validity of its representations in behalf of the
complaining taxi drivers before the quasi-judicial bodies. Therefore, they are now estopped from raising such question
before this Court. In any event, petitioners acknowledged before this Court that the taxi drivers allegedly represented by
NOWM, are themselves parties in this case.[16]

Third Issue: Liability of Petitioner-

Corporations and Their Respective Officers

The resolution of this issue involves another factual finding that Naguiat Enterprises actually managed, supervised and
controlled employment terms of the taxi drivers, making it their indirect employer. As adverted to earlier, factual findings of
quasi-judicial bodies are binding upon the court in the absence of a showing of grave abuse of discretion.

Unfortunately, the NLRC did not discuss or give any explanation for holding Naguiat Enterprises and its officers jointly and
severally liable in discharging CFTI's liability for payment of separation pay. We again remind those concerned that
decisions, however concisely written, must distinctly and clearly set forth the facts and law upon which they are based.[17]
This rule applies as well to dispositions by quasi-judicial and administrative bodies.
 5

Naguiat Enterprises Not Liable

In impleading Naguiat Enterprises as solidarily liable for the obligations of CFTI, respondents rely on Articles 106,[18]
107[19] and 109[20] of the Labor Code.

Based on factual submissions of the parties, the labor arbiter, however, found that individual respondents were regular
employees of CFTI who received wages on a boundary or commission basis.

We find no reason to make a contrary finding. Labor-only contracting exists where: (1) the person supplying workers to an
employer does not have substantial capital or investment in the form of tools, equipment, machinery, and work premises,
among others; and (2) the workers recruited and placed by such person are performing activities which are directly related
to the principal business of the employer.[21] Independent contractors, meanwhile, are those who exercise independent
employment, contracting to do a piece of work according to their own methods without being subject to control of their
employer except as to the result of their work.[22]

From the evidence proffered by both parties, there is no substantial basis to hold that Naguiat Enterprises is an indirect
employer of individual respondents much less a labor only contractor. On the contrary, petitioners submitted documents
such as the drivers' applications for employment with CFTI,[23] and social security remittances[24] and payroll[25] of
Naguiat Enterprises showing that none of the individual respondents were its employees. Moreover, in the
contract[26]between CFTI and AAFES, the former, as concessionaire, agreed to purchase from AAFES for a certain
amount within a specified period a fleet of vehicles to be "ke(pt) on the road" by CFTI, pursuant to their concessionaire's
contract. This indicates that CFTI became the owner of the taxicabs which became the principal investment and asset of
the company.

Private respondents failed to substantiate their claim that Naguiat Enterprises managed, supervised and controlled their
employment. It appears that they were confused on the personalities of Sergio F. Naguiat as an individual who was the
president of CFTI, and Sergio F. Naguiat Enterprises, Inc., as a separate corporate entity with a separate business. They
presumed that Sergio F. Naguiat, who was at the same time a stockholder and director[27] of Sergio F. Naguiat
Enterprises, Inc., was managing and controlling the taxi business on behalf of the latter. A closer scrutiny and analysis of
the records, however, evince the truth of the matter: that Sergio F. Naguiat, in supervising the-taxi drivers and determining
their employment terms, was rather carrying out his responsibilities as president of CFTI. Hence, Naguiat Enterprises as a
separate corporation does not appear to be involved at all in the taxi business.

To illustrate further, we refer to the testimony of a driver-claimant on cross examination.

"Atty. Suarez

Is it not true that you applied not with Sergio F. Naguiat but with Clark Field Taxi?

Witness

I applied for (sic) Sergio F. Naguiat

Atty. Suarez

Sergio F. Naguiat as an individual or the corporation?

Witness

'Sergio F. Naguiat na tao.'

Atty. Suarez

Who is Sergio F. Naguiat?

Witness

He is the one managing the Sergio F. Naguiat Enterprises and he is the one whom we believe as our employer.

Atty. Suarez
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What is exactly the position of Sergio F. Naguiat with the Sergio F. Naguiat Enterprises?

Witness

He is the owner, sir.

Atty. Suarez

How about with Clark Field Taxi Incorporated what is the position of Mr. Naguiat?

Witness

What I know is that he is a concessionaire.

xxx xxx
xxx

Atty. Suarez

But do you also know that Sergio F. Naguiat is the President of Clark Field Taxi, Incorporated?

Witness

Yes. sir.

Atty. Suarez

How about Mr. Antolin Naguiat what is his role in the taxi services, the operation of the Clark Field Taxi, Incorporated?

Witness

He is the vice president."[28]

And, although the witness insisted that Naguiat Enterprises was his employer, he could not deny that he received his
salary from the office of CFTI inside the base.[29]

Another driver-claimant admitted, upon the prodding of counsel for the corporations, that Naguiat Enterprises was in the
trading business while CFTI was in taxi services.[30]

In addition, the Constitution[31] of CFTI-AAFES Taxi Drivers Association which, admittedly, was the union of individual
respondents while still working at Clark Air Base, states that members thereof are the employees of CFTI and "(f)or
collective bargaining purposes, the definite employer is the Clark Field Taxi Inc."

From the foregoing, the ineludible conclusion is that CFTI was the actual and direct employer of individual respondents,
and that Naguiat Enterprises was neither their indirect employer nor labor-only contractor. It was not involved at all in the
taxi business.

CFTI president solidarily liable

Petitioner-corporations would likewise want to avoid the solidary liability of their officers. To bolster their position, Sergio F.
Naguiat and Antolin T. Naguiat specifically aver that they were denied due process since they were not parties to the
complaint below.[32] In the broader interest of justice, we, however, hold that Sergio F. Naguiat, in his capacity as
president of CFTI, cannot be exonerated from joint and several liability in the payment of separation pay to individual
respondents.

A.C. Ransom Labor Union-CCLU vs. NLRC[33] is the case in point. A.C. Ransom Corporation was a family corporation,
the stockholders of which were members of the Hernandez family. In 1973, it filed an application for clearance to close or
cease operations, which was duly granted by the Ministry of Labor and Employment, without prejudice to the right of
employees to seek redress of grievance, if any. Backwages of 22 employees, who engaged in a strike prior to the closure,
 7

were subsequently computed at P164,984.00. Up to September 1976, the union filed about ten (10) motions for execution
against the corporation, but none could be implemented, presumably for failure to find leviable assets of said corporation.
In its last motion for execution, the union asked that officers and agents of the company be held personally liable for
payment of the backwages. This was granted by the labor arbiter. In the corporation's appeal to the NLRC, one of the
issues raised was: "Is the judgment against a corporation to reinstate its dismissed employees with backwages,
enforceable against its officer and agents, in their individual, private and personal capacities, who were not parties in the
case where the judgment was rendered?" The NLRC answered in the negative, on the ground that officers of a
corporation are not liable personally for official acts unless they exceeded the scope of their authority.

On certiorari, this Court reversed the NLRC and upheld the labor arbiter. In imposing joint and several liability upon the
company president, the Court, speaking through Mme. Justice Ameurfina Melencio-Herrera, ratiocinated this wise:

"(b) How can the foregoing (Articles 265 and 273 of the Labor Code) provisions be implemented when the employer is
a corporation? The answer is found in Article 212(c) of the Labor Code which provides:
'(c) 'Employer' includes any person acting in the interest of an employer, directly or indirectly. The term shall not
include any labor organization or any of its officers or agents except when acting as employer.'

The foregoing was culled from Section 2 of RA 602, the Minimum Wage Law. Since RANSOM is an artificial person, it
must have an officer who can be presumed to be the employer, being the 'person acting in the interest of (the) employer'
RANSOM. The corporation, only in the technical sense, is the employer.

The responsible officer of an employer corporation can be held personally, not to say even criminally, liable for
nonpayment of back wages. That is the policy of the law. x x x

(c) If the policy of the law were otherwise, the corporation employer can have devious ways for evading payment of
back wages. x x x

(d) The record does not clearly identify 'the officer or officers' of RANSOM directly responsible for failure to pay the
back wages of the 22 strikers. In the absence of definite proof in that regard, we believe it should be presumed that the
responsible officer is the President of the corporation who can be deemed the chief operation officer thereof. Thus, in RA
602, criminal responsibility is with the 'Manager or in his default, the person acting as such.' In RANSOM, the President
appears to be the Manager." (Underscoring supplied.)

Sergio F. Naguiat, admittedly, was the president of CFTI who actively managed the business. Thus, applying the ruling in
A. C. Ransom, he falls within the meaning of an "employer" as contemplated by the Labor Code, who may be held jointly
and severally liable for the obligations of the corporation to its dismissed employees.

Moreover, petitioners also conceded that both CFTI and Naguiat Enterprises were "close family corporations"[34] owned
by the Naguiat family. Section 100, paragraph 5, (under Title XII on Close Corporations) of the Corporation Code, states:

"(5) To the extent that the stockholders are actively engage(d) in the management or operation of the business and
affairs of a close corporation, the stockholders shall be held to strict fiduciary duties to each other and among themselves.
Said stockholders shall be personally liable for corporate torts unless the corporation has obtained reasonably adequate
liability insurance." (underscoring supplied)

Nothing in the records show whether CFTI obtained "reasonably adequate liability insurance;" thus, what remains is to
determine whether there was corporate tort.

Our jurisprudence is wanting as to the definite scope of "corporate tort." Essentially, "tort" consists in the violation of a
right given or the omission of a duty imposed by law.[35] Simply stated, tort is a breach of a legal duty.[36] Article 283 of
the Labor Code mandates the employer to grant separation pay to employees in case of closure or cessation of
operations of establishment or undertaking not due to serious business losses or financial reverses, which is the condition
obtaining at bar. CFTI failed to comply with this law-imposed duty or obligation. Consequently, its stockholder who was
actively engaged in the management or operation of the business should be held personally liable.
 8

Furthermore, in MAM Realty Development vs. NLRC,[37] the Court recognized that a director or officer may still be held
solidarily liable with a corporation by specific provision of law. Thus:

"x x x A corporation, being a juridical entity, may act only through its directors, officers and employees. Obligations
incurred by them, acting as such corporate agents, are not theirs but the direct accountabilities of the corporation they
represent. True, solidary liabilities may at times be incurred but only when exceptional circumstances warrant such as,
generally, in the following cases: Scl-aw

xxx xxx
xxx

4. When a director, trustee or officer is made, by specific provision of law, personally liable for his corporate
action." (footnotes omitted)

As pointed out earlier, the fifth paragraph of Section 100 of the Corporation Code specifically imposes personal liability
upon the stockholder actively managing or operating the business and affairs of the close corporation.

In fact, in posting the surety bond required by this Court for the issuance of a temporary restraining order enjoining the
execution of the assailed NLRC Resolutions, only Sergio F. Naguiat, in his individual and personal capacity, principally
bound himself to comply with the obligation thereunder, i.e., "to guarantee the payment to private respondents of any
damages which they may incur by reason of the issuance of a temporary restraining order sought, if it should be finally
adjudged that said principals were not entitled thereto."[38]

The Court here finds no application to the rule that a corporate officer cannot be held solidarily liable with a corporation in
the absence of evidence that he had acted in bad faith or with malice.[39] In the present case, Sergio Naguiat is held
solidarily liable for corporate tort because he had actively engaged in the management and operation of CFTI, a close
corporation.

Antolin Naguiat not personally liable

Antolin T. Naguiat was the vice president of the CFTI. Although he carried the title of "general manager" as well, it had not
been shown that he had acted in such capacity. Furthermore, no evidence on the extent of his participation in the
management or operation of the business was proffered. In this light, he cannot be held solidarily liable for the obligations
of CFTI and Sergio Naguiat to the private respondents.

Fourth Issue: No Denial of Due Process

Lastly, in petitioners' Supplement to their original petition, they assail the NLRC Resolution holding Sergio F. Naguiat and
Antolin T. Naguiat jointly and severally liable with petitioner-corporations in the payment of separation pay, averring denial
of due process since the individual Naguiats were not impleaded as parties to the complaint.

We advert to the case of A.C. Ransom once more. The officers of the corporation were not parties to the case when the
judgment in favor of the employees was rendered. The corporate officers raised this issue when the labor arbiter granted
the motion of the employees to enforce the judgment against them. In spite of this, the Court held the corporation
president solidarily liable with the corporation.

Furthermore, Sergio and Antolin Naguiat voluntarily submitted themselves to the jurisdiction of the labor arbiter when they,
in their individual capacities, filed a position paper[40] together with CFTI, before the arbiter. They cannot now claim to
have been denied due process since they availed of the opportunity to present their positions.

WHEREFORE, the foregoing premises considered, the petition is PARTLY GRANTED. The assailed February 28, 1994
Resolution of the NLRC is hereby MODIFIED as follows:

(1) Petitioner Clark Field Taxi, Incorporated, and Sergio F. Naguiat, president and co-owner thereof, are ORDERED to
pay, jointly and severally, the individual respondents their separation pay computed at US$120.00 for every year of
service, or its peso equivalent at the time of payment or satisfaction of the judgment;
 9

(2) Petitioner Sergio F. Naguiat Enterprises, Incorporated, and Antolin T. Naguiat are ABSOLVED from liability in the
payment of separation pay to individual respondents.

SO ORDERED.

Narvasa, C.J., (Chairman), Davide, Jr., Melo, and Francisco, JJ., concur.
 10

G.R. NO. 141309, June 19, 2007

LIWAYWAY VINZONS-CHATO, PETITIONER, VS. FORTUNE TOBACCO CORPORATION, RESPONDENT.

DECISION
YNARES-SANTIAGO, J.:

Petitioner assails the May 7, 1999 Decision[1] of the Court of Appeals in CA-G.R. SP No. 47167, which affirmed the
September 29, 1997 Order[2] of the Regional Trial Court (RTC) of Marikina, Branch 272, in Civil Case No. 97-341-MK,
denying petitioner's motion to dismiss. The complaint filed by respondent sought to recover damages for the alleged
violation of its constitutional rights arising from petitioner's issuance of Revenue Memorandum Circular No. 37-93 (RMC
37-93), which the Court declared invalid in Commissioner of Internal Revenue v. Court of Appeals.[3]

Petitioner Liwayway Vinzons-Chato was then the Commissioner of Internal Revenue while respondent Fortune Tobacco
Corporation is an entity engaged in the manufacture of different brands of cigarettes, among which are "Champion,"
"Hope," and "More" cigarettes.

On June 10, 1993, the legislature enacted Republic Act No. 7654 (RA 7654), which took effect on July 3, 1993. Prior to its
effectivity, cigarette brands "Champion," "Hope," and "More" were considered local brands subjected to an ad valorem tax
at the rate of 20-45%. However, on July 1, 1993, or two days before RA 7654 took effect, petitioner issued RMC 37-93
reclassifying "Champion," "Hope," and "More" as locally manufactured cigarettes bearing a foreign brand subject to the
55% ad valorem tax.[4] RMC 37-93 in effect subjected "Hope," "More," and "Champion" cigarettes to the provisions of RA
7654, specifically, to Sec. 142,[5] (c)(1) on locally manufactured cigarettes which are currently classified and taxed at
55%, and which imposes an ad valorem tax of "55% provided that the minimum tax shall not be less than Five Pesos
(P5.00) per pack."[6]

On July 2, 1993, at about 5:50 p.m., BIR Deputy Commissioner Victor A. Deoferio, Jr. sent via telefax a copy of RMC 37-
93 to Fortune Tobacco but it was addressed to no one in particular. On July 15, 1993, Fortune Tobacco received, by
ordinary mail, a certified xerox copy of RMC 37-93. On July 20, 1993, respondent filed a motion for reconsideration
requesting the recall of RMC 37-93, but was denied in a letter dated July 30, 1993.[7] The same letter assessed
respondent for ad valorem tax deficiency amounting to P9,598,334.00 (computed on the basis of RMC 37-93) and
demanded payment within 10 days from receipt thereof.[8] On August 3, 1993, respondent filed a petition for review with
the Court of Tax Appeals (CTA), which on September 30, 1993, issued an injunction enjoining the implementation of RMC
37-93.[9] In its decision dated August 10, 1994, the CTA ruled that RMC 37-93 is defective, invalid, and unenforceable
and further enjoined petitioner from collecting the deficiency tax assessment issued pursuant to RMC No. 37-93. This
ruling was affirmed by the Court of Appeals, and finally by this Court in Commissioner of Internal Revenue v. Court of
Appeals.[10] It was held, among others, that RMC 37-93, has fallen short of the requirements for a valid administrative
issuance.

On April 10, 1997, respondent filed before the RTC a complaint[11] for damages against petitioner in her private capacity.
Respondent contended that the latter should be held liable for damages under Article 32 of the Civil Code considering that
the issuance of RMC 37-93 violated its constitutional right against deprivation of property without due process of law and
the right to equal protection of the laws.

Petitioner filed a motion to dismiss[12] contending that: (1) respondent has no cause of action against her because she
issued RMC 37-93 in the performance of her official function and within the scope of her authority. She claimed that she
acted merely as an agent of the Republic and therefore the latter is the one responsible for her acts; (2) the complaint
states no cause of action for lack of allegation of malice or bad faith; and (3) the certification against forum shopping was
signed by respondent's counsel in violation of the rule that it is the plaintiff or the principal party who should sign the same.

On September 29, 1997, the RTC denied petitioner's motion to dismiss holding that to rule on the allegations of petitioner
would be to prematurely decide the merits of the case without allowing the parties to present evidence. It further held that
the defect in the certification against forum shopping was cured by respondent's submission of the corporate secretary's
certificate authorizing its counsel to execute the certification against forum shopping. The dispositive portion thereof,
states:

WHEREFORE, foregoing premises considered, the motion to dismiss filed by the defendant Liwayway Vinzons-Chato and
the motion to strike out and expunge from the record the said motion to dismiss filed by plaintiff Fortune Tobacco
Corporation are both denied on the grounds aforecited. The defendant is ordered to file her answer to the complaint within
ten (10) days from receipt of this Order.
 11

SO ORDERED.[13]
The case was elevated to the Court of Appeals via a petition for certiorari under Rule 65. However, same was dismissed
on the ground that under Article 32 of the Civil Code, liability may arise even if the defendant did not act with malice or
bad faith. The appellate court ratiocinated that Section 38, Book I of the Administrative Code is the general law on the civil
liability of public officers while Article 32 of the Civil Code is the special law that governs the instant case. Consequently,
malice or bad faith need not be alleged in the complaint for damages. It also sustained the ruling of the RTC that the
defect of the certification against forum shopping was cured by the submission of the corporate secretary's certificate
giving authority to its counsel to execute the same.

Undaunted, petitioner filed the instant recourse contending that the suit is grounded on her acts done in the performance
of her functions as a public officer, hence, it is Section 38, Book I of the Administrative Code which should be applied.
Under this provision, liability will attach only when there is a clear showing of bad faith, malice, or gross negligence. She
further averred that the Civil Code, specifically, Article 32 which allows recovery of damages for violation of constitutional
rights, is a general law on the liability of public officers; while Section 38, Book I of the Administrative Code is a special
law on the superior public officers' liability, such that, if the complaint, as in the instant case, does not allege bad faith,
malice, or gross negligence, the same is dismissible for failure to state a cause of action. As to the defect of the
certification against forum shopping, she urged the Court to strictly construe the rules and to dismiss the complaint.

Conversely, respondent argued that Section 38 which treats in general the public officers' "acts" from which civil liability
may arise, is a general law; while Article 32 which deals specifically with the public officers' violation of constitutional
rights, is a special provision which should determine whether the complaint states a cause of action or not. Citing the case
of Lim v. Ponce de Leon,[14] respondent alleged that under Article 32 of the Civil Code, it is enough that there was a
violation of the constitutional rights of the plaintiff and it is not required that said public officer should have acted with
malice or in bad faith. Hence, it concluded that even granting that the complaint failed to allege bad faith or malice, the
motion to dismiss for failure to state a cause of action should be denied inasmuch as bad faith or malice are not
necessary to hold petitioner liable.

The issues for resolution are as follows:

(1) May a public officer be validly sued in his/her private capacity for acts done in connection with the discharge of the
functions of his/her office?

(2) Which as between Article 32 of the Civil Code and Section 38, Book I of the Administrative Code should govern in
determining whether the instant complaint states a cause of action?

(3) Should the complaint be dismissed for failure to comply with the rule on certification against forum shopping?

(4) May petitioner be held liable for damages?

On the first issue, the general rule is that a public officer is not liable for damages which a person may suffer arising from
the just performance of his official duties and within the scope of his assigned tasks.[15] An officer who acts within his
authority to administer the affairs of the office which he/she heads is not liable for damages that may have been caused to
another, as it would virtually be a charge against the Republic, which is not amenable to judgment for monetary claims
without its consent.[16] However, a public officer is by law not immune from damages in his/her personal capacity for acts
done in bad faith which, being outside the scope of his authority, are no longer protected by the mantle of immunity for
official actions.[17]

Specifically, under Section 38, Book I of the Administrative Code, civil liability may arise where there is bad faith, malice,
or gross negligence on the part of a superior public officer. And, under Section 39 of the same Book, civil liability may
arise where the subordinate public officer's act is characterized by willfulness or negligence. Thus

Sec. 38. Liability of Superior Officers. (1) A public officer shall not be civilly liable for acts done in the performance of his
official duties, unless there is a clear showing of bad faith, malice or gross negligence.

xxxx

Section 39. Liability of Subordinate Officers. No subordinate officer or employee shall be civilly liable for acts done by
him in good faith in the performance of his duties. However, he shall be liable for willful or negligent acts done by him
which are contrary to law, morals, public policy and good customs even if he acts under orders or instructions of his
superior.
 12

In addition, the Court held in Cojuangco, Jr. v. Court of Appeals,[18] that a public officer who directly or indirectly violates
the constitutional rights of another, may be validly sued for damages under Article 32 of the Civil Code even if his acts
were not so tainted with malice or bad faith.

Thus, the rule in this jurisdiction is that a public officer may be validly sued in his/her private capacity for acts done in the
course of the performance of the functions of the office, where said public officer: (1) acted with malice, bad faith, or
negligence; or (2) where the public officer violated a constitutional right of the plaintiff.

Anent the second issue, we hold that the complaint filed by respondent stated a cause of action and that the decisive
provision thereon is Article 32 of the Civil Code.

A general statute is one which embraces a class of subjects or places and does not omit any subject or place naturally
belonging to such class. A special statute, as the term is generally understood, is one which relates to particular persons
or things of a class or to a particular portion or section of the state only.[19]

A general law and a special law on the same subject are statutes in pari materia and should, accordingly, be read
together and harmonized, if possible, with a view to giving effect to both. The rule is that where there are two acts, one of
which is special and particular and the other general which, if standing alone, would include the same matter and thus
conflict with the special act, the special law must prevail since it evinces the legislative intent more clearly than that of a
general statute and must not be taken as intended to affect the more particular and specific provisions of the earlier act,
unless it is absolutely necessary so to construe it in order to give its words any meaning at all.[20]

The circumstance that the special law is passed before or after the general act does not change the principle. Where the
special law is later, it will be regarded as an exception to, or a qualification of, the prior general act; and where the general
act is later, the special statute will be construed as remaining an exception to its terms, unless repealed expressly or by
necessary implication.[21]

Thus, in City of Manila v. Teotico,[22] the Court held that Article 2189 of the Civil Code which holds provinces, cities, and
municipalities civilly liable for death or injuries by reason of defective conditions of roads and other public works, is a
special provision and should prevail over Section 4 of Republic Act No. 409, the Charter of Manila, in determining the
liability for defective street conditions. Under said Charter, the city shall not be held for damages or injuries arising from
the failure of the local officials to enforce the provision of the charter, law, or ordinance, or from negligence while enforcing
or attempting to enforce the same. As explained by the Court:

Manila maintains that the former provision should prevail over the latter, because Republic Act 409 is a special law,
intended exclusively for the City of Manila, whereas the Civil Code is a general law, applicable to the entire Philippines.

The Court of Appeals, however, applied the Civil Code, and, we think, correctly. It is true that, insofar as its territorial
application is concerned, Republic Act No. 409 is a special law and the Civil Code a general legislation; but, as regards
the subject matter of the provisions above quoted, Section 4 of Republic Act 409 establishes a general rule regulating the
liability of the City of Manila for "damages or injury to persons or property arising from the failure of" city officers "to
enforce the provisions of" said Act "or any other law or ordinance, or from negligence" of the city "Mayor, Municipal Board,
or other officers while enforcing or attempting to enforce said provisions." Upon the other hand, Article 2189 of the Civil
Code constitutes a particular prescription making "provinces, cities and municipalities . . . liable for damages for the death
of, or injury suffered by, any person by reason" specifically "of the defective condition of roads, streets, bridges, public
buildings, and other public works under their control or supervision." In other words, said section 4 refers to liability arising
from negligence, in general, regardless of the object thereof, whereas Article 2189 governs liability due to "defective
streets," in particular. Since the present action is based upon the alleged defective condition of a road, said Article 2189 is
decisive thereon.[23]
In the case of Bagatsing v. Ramirez,[24] the issue was which law should govern the publication of a tax ordinance, the
City Charter of Manila, a special act which treats ordinances in general and which requires their publication before
enactment and after approval, or the Tax Code, a general law, which deals in particular with "ordinances levying or
imposing taxes, fees or other charges," and which demands publication only after approval. In holding that it is the Tax
Code which should prevail, the Court elucidated that:

There is no question that the Revised Charter of the City of Manila is a special act since it relates only to the City of
Manila, whereas the Local Tax Code is a general law because it applies universally to all local governments. Blackstone
defines general law as a universal rule affecting the entire community and special law as one relating to particular persons
or things of a class. And the rule commonly said is that a prior special law is not ordinarily repealed by a subsequent
general law. The fact that one is special and the other general creates a presumption that the special is to be considered
 13

as remaining an exception of the general, one as a general law of the land, the other as the law of a particular case.
However, the rule readily yields to a situation where the special statute refers to a subject in general, which the general
statute treats in particular. Th[is] exactly is the circumstance obtaining in the case at bar. Section 17 of the Revised
Charter of the City of Manila speaks of "ordinance" in general, i.e., irrespective of the nature and scope thereof, whereas,
Section 43 of the Local Tax Code relates to "ordinances levying or imposing taxes, fees or other charges" in particular. In
regard, therefore, to ordinances in general, the Revised Charter of the City of Manila is doubtless dominant, but, that
dominant force loses its continuity when it approaches the realm of "ordinances levying or imposing taxes, fees or other
charges" in particular. There, the Local Tax Code controls. Here, as always, a general provision must give way to a
particular provision. Special provision governs.
Let us examine the provisions involved in the case at bar. Article 32 of the Civil Code provides:

ART. 32. Any public officer or employee, or any private individual, who directly or indirectly obstructs, defeats, violates, or
in any manner impedes or impairs any of the following rights and liberties of another person shall be liable to the latter for
damages:

xxxx

(6) The right against deprivation of property without due process of law;

xxxx

(8) The right to the equal protection of the laws;

xxxx
The rationale for its enactment was explained by Dean Bocobo of the Code Commission, as follows:

"DEAN BOCOBO. Article 32, regarding individual rights, Attorney Cirilo Paredes proposes that Article 32 be so amended
as to make a public official liable for violation of another person's constitutional rights only if the public official acted
maliciously or in bad faith. The Code Commission opposes this suggestion for these reasons:

"The very nature of Article 32 is that the wrong may be civil or criminal. It is not necessary therefore that there should be
malice or bad faith. To make such a requisite would defeat the main purpose of Article 32 which is the effective protection
of individual rights. Public officials in the past have abused their powers on the pretext of justifiable motives or good faith
in the performance of their duties. Precisely, the object of the Article is to put an end to official abuse by the plea of good
faith. In the United States this remedy is in the nature of a tort.

"Mr. Chairman, this article is firmly one of the fundamental articles introduced in the New Civil Code to implement
democracy. There is no real democracy if a public official is abusing and we made the article so strong and so
comprehensive that it concludes an abuse of individual rights even if done in good faith, that official is liable. As a matter
of fact, we know that there are very few public officials who openly and definitely abuse the individual rights of the citizens.
In most cases, the abuse is justified on a plea of desire to enforce the law to comply with one's duty. And so, if we should
limit the scope of this article, that would practically nullify the object of the article. Precisely, the opening object of the
article is to put an end to abuses which are justified by a plea of good faith, which is in most cases the plea of officials
abusing individual rights."[25]
The Code Commission deemed it necessary to hold not only public officers but also private individuals civilly liable for
violation of the rights enumerated in Article 32 of the Civil Code. It is not necessary that the defendant under this Article
should have acted with malice or bad faith, otherwise, it would defeat its main purpose, which is the effective protection of
individual rights. It suffices that there is a violation of the constitutional right of the plaintiff.[26]

Article 32 was patterned after the "tort" in American law.[27] A tort is a wrong, a tortious act which has been defined as the
commission or omission of an act by one, without right, whereby another receives some injury, directly or indirectly, in
person, property, or reputation.[28] There are cases in which it has been stated that civil liability in tort is determined by
the conduct and not by the mental state of the tortfeasor, and there are circumstances under which the motive of the
defendant has been rendered immaterial. The reason sometimes given for the rule is that otherwise, the mental attitude of
the alleged wrongdoer, and not the act itself, would determine whether the act was wrongful.[29] Presence of good
motive, or rather, the absence of an evil motive, does not render lawful an act which is otherwise an invasion of another's
legal right; that is, liability in tort is not precluded by the fact that defendant acted without evil intent.[30]

The clear intention therefore of the legislature was to create a distinct cause of action in the nature of tort for violation of
constitutional rights, irrespective of the motive or intent of the defendant.[31] This is a fundamental innovation in the Civil
 14

Code, and in enacting the Administrative Code pursuant to the exercise of legislative powers, then President Corazon C.
Aquino, could not have intended to obliterate this constitutional protection on civil liberties.

In Aberca v. Ver,[32] it was held that with the enactment of Article 32, the principle of accountability of public officials
under the Constitution acquires added meaning and assumes a larger dimension. No longer may a superior official relax
his vigilance or abdicate his duty to supervise his subordinates, secure in the thought that he does not have to answer for
the transgressions committed by the latter against the constitutionally protected rights and liberties of the citizen. Part of
the factors that propelled people power in February 1986 was the widely held perception that the government was callous
or indifferent to, if not actually responsible for, the rampant violations of human rights. While it would certainly be too naive
to expect that violators of human rights would easily be deterred by the prospect of facing damage suits, it should
nonetheless be made clear in no uncertain terms that Article 32 of the Civil Code makes the persons who are directly, as
well as indirectly, responsible for the transgression, joint tortfeasors.

On the other hand, Sections 38 and 39, Book I of the Administrative Code, laid down the rule on the civil liability of
superior and subordinate public officers for acts done in the performance of their duties. For both superior and
subordinate public officers, the presence of bad faith, malice, and negligence are vital elements that will make them liable
for damages. Note that while said provisions deal in particular with the liability of government officials, the subject thereof
is general, i.e., "acts" done in the performance of official duties, without specifying the action or omission that may give
rise to a civil suit against the official concerned.

Contrarily, Article 32 of the Civil Code specifies in clear and unequivocal terms a particular specie of an "act" that may
give rise to an action for damages against a public officer, and that is, a tort for impairment of rights and liberties. Indeed,
Article 32 is the special provision that deals specifically with violation of constitutional rights by public officers. All other
actionable acts of public officers are governed by Sections 38 and 39 of the Administrative Code. While the Civil Code,
specifically, the Chapter on Human Relations is a general law, Article 32 of the same Chapter is a special and specific
provision that holds a public officer liable for and allows redress from a particular class of wrongful acts that may be
committed by public officers. Compared thus with Section 38 of the Administrative Code, which broadly deals with civil
liability arising from errors in the performance of duties, Article 32 of the Civil Code is the specific provision which must be
applied in the instant case precisely filed to seek damages for violation of constitutional rights.

The complaint in the instant case was brought under Article 32 of the Civil Code. Considering that bad faith and malice
are not necessary in an action based on Article 32 of the Civil Code, the failure to specifically allege the same will not
amount to failure to state a cause of action. The courts below therefore correctly denied the motion to dismiss on the
ground of failure to state a cause of action, since it is enough that the complaint avers a violation of a constitutional right of
the plaintiff.

Anent the issue on non-compliance with the rule against forum shopping, the subsequent submission of the secretary's
certificate authorizing the counsel to sign and execute the certification against forum shopping cured the defect of
respondent's complaint. Besides, the merits of the instant case justify the liberal application of the rules.[33]

WHEREFORE, in view of the foregoing, the petition is DENIED. The Decision of the Court of Appeals dated May 7, 1999
which affirmed the Order of the Regional Trial Court of Marikina, Branch 272, denying petitioner's motion to dismiss, is
AFFIRMED. The Presiding Judge, Regional Trial Court of Marikina, Branch 272, is hereby DIRECTED to continue with
the proceedings in Civil Case No. 97-341-MK with dispatch.

With costs.

SO ORDERED.
 15

G.R. NO. 168512, March 20, 2007

ORLANDO D. GARCIA, JR., DOING BUSINESS UNDER THE NAME AND STYLE COMMUNITY
DIAGNOSTIC CENTER AND BU CASTRO,[1] PETITIONERS, VS. RANIDA D. SALVADOR AND RAMON
SALVADOR, RESPONDENTS.

DECISION
YNARES-SANTIAGO, J.:

This is a petition for review[2] under Rule 45 of the Rules of Court assailing the February 27, 2004 Decision[3] of the Court
of Appeals in CA-G.R. CV No. 58668 finding petitioner Orlando D. Garcia liable for gross negligence; and its June 16,
2005 Resolution[4] denying petitioner's motion for reconsideration.

On October 1, 1993, respondent Ranida D. Salvador started working as a trainee in the Accounting Department of Limay
Bulk Handling Terminal, Inc. (the Company). As a prerequisite for regular employment, she underwent a medical
examination at the Community Diagnostic Center (CDC). Garcia who is a medical technologist, conducted the HBs Ag
(Hepatitis B Surface Antigen) test and on October 22, 1993, CDC issued the test result[5] indicating that Ranida was "HBs
Ag: Reactive." The result bore the name and signature of Garcia as examiner and the rubber stamp signature of Castro as
pathologist.

When Ranida submitted the test result to Dr. Sto. Domingo, the Company physician, the latter apprised her that the
findings indicated that she is suffering from Hepatitis B, a liver disease. Thus, based on the medical report[6] submitted by
Sto. Domingo, the Company terminated Ranida's employment for failing the physical examination.[7]

When Ranida informed her father, Ramon, about her ailment, the latter suffered a heart attack and was confined at the
Bataan Doctors Hospital. During Ramon's confinement, Ranida underwent another HBs Ag test at the said hospital and
the result[8] indicated that she is non-reactive. She informed Sto. Domingo of this development but was told that the test
conducted by CDC was more reliable because it used the Micro-Elisa Method.

Thus, Ranida went back to CDC for confirmatory testing, and this time, the Anti-HBs test conducted on her indicated a
"Negative" result.[9]

Ranida also underwent another HBs Ag test at the Bataan Doctors Hospital using the Micro-Elisa Method. The result
indicated that she was non-reactive.[10]

Ranida submitted the test results from Bataan Doctors Hospital and CDC to the Executive Officer of the Company who
requested her to undergo another similar test before her re-employment would be considered. Thus, CDC conducted
another HBs Ag test on Ranida which indicated a "Negative" result.[11] Ma. Ruby G. Calderon, Med-Tech Officer-in-
Charge of CDC, issued a Certification correcting the initial result and explaining that the examining medical technologist
(Garcia) interpreted the delayed reaction as positive or reactive.[12]

Thereafter, the Company rehired Ranida.

On July 25, 1994, Ranida and Ramon filed a complaint[13] for damages against petitioner Garcia and a purportedly
unknown pathologist of CDC, claiming that, by reason of the erroneous interpretation of the results of Ranida's
examination, she lost her job and suffered serious mental anxiety, trauma and sleepless nights, while Ramon was
hospitalized and lost business opportunities.

On September 26, 1994, respondents amended their complaint[14] by naming Castro as the "unknown pathologist."

Garcia denied the allegations of gross negligence and incompetence and reiterated the scientific explanation for the "false
positive" result of the first HBs Ag test in his December 7, 1993 letter to the respondents.[15]

For his part, Castro claimed that as pathologist, he rarely went to CDC and only when a case was referred to him; that he
did not examine Ranida; and that the test results bore only his rubber-stamp signature.

On September 1, 1997,[16] the trial court dismissed the complaint for failure of the respondents to present sufficient
evidence to prove the liability of Garcia and Castro. It held that respondents should have presented Sto. Domingo
because he was the one who interpreted the test result issued by CDC. Likewise, respondents should have presented a
 16

medical expert to refute the testimonies of Garcia and Castro regarding the medical explanation behind the conflicting test
results on Ranida.[17]

Respondents appealed to the Court of Appeals which reversed the trial court's findings, the dispositive portion of which
states:

WHEREFORE, the decision appealed from is REVERSED and SET ASIDE and another one entered ORDERING
defendant-appellee Orlando D. Garcia, Jr. to pay plaintiff-appellant Ranida D. Salvador moral damages in the amount of
P50,000.00, exemplary damages in the amount of P50,000.00 and attorney's fees in the amount of P25,000.00.

SO ORDERED.[18]

The appellate court found Garcia liable for damages for negligently issuing an erroneous HBs Ag result. On the other
hand, it exonerated Castro for lack of participation in the issuance of the results.

After the denial of his motion for reconsideration, Garcia filed the instant petition.

The main issue for resolution is whether the Court of Appeals, in reversing the decision of the trial court, correctly found
petitioner liable for damages to the respondents for issuing an incorrect HBsAG test result.

Garcia maintains he is not negligent, thus not liable for damages, because he followed the appropriate laboratory
measures and procedures as dictated by his training and experience; and that he did everything within his professional
competence to arrive at an objective, impartial and impersonal result.

At the outset, we note that the issues raised are factual in nature. Whether a person is negligent or not is a question of
fact which we cannot pass upon in a petition for review on certiorari which is limited to reviewing errors of law.[19]

Negligence is the failure to observe for the protection of the interest of another person that degree of care, precaution and
vigilance which the circumstances justly demand,[20] whereby such other person suffers injury. For health care providers,
the test of the existence of negligence is: did the health care provider either fail to do something which a reasonably
prudent health care provider would have done, or that he or she did something that a reasonably prudent health care
provider would not have done; and that failure or action caused injury to the patient;[21] if yes, then he is guilty of
negligence.

Thus, the elements of an actionable conduct are: 1) duty, 2) breach, 3) injury, and 4) proximate causation.

All the elements are present in the case at bar.

Owners and operators of clinical laboratories have the duty to comply with statutes, as well as rules and regulations,
purposely promulgated to protect and promote the health of the people by preventing the operation of substandard,
improperly managed and inadequately supported clinical laboratories and by improving the quality of performance of
clinical laboratory examinations.[22] Their business is impressed with public interest, as such, high standards of
performance are expected from them.

In F.F. Cruz and Co., Inc. v. Court of Appeals, we found the owner of a furniture shop liable for the destruction of the
plaintiff's house in a fire which started in his establishment in view of his failure to comply with an ordinance which
required the construction of a firewall. In Teague v. Fernandez, we stated that where the very injury which was intended to
be prevented by the ordinance has happened, non-compliance with the ordinance was not only an act of negligence, but
also the proximate cause of the death.[23]

In fine, violation of a statutory duty is negligence. Where the law imposes upon a person the duty to do something, his
omission or non-performance will render him liable to whoever may be injured thereby.

Section 2 of Republic Act (R.A.) No. 4688, otherwise known as The Clinical Laboratory Law, provides:

Sec. 2. It shall be unlawful for any person to be professionally in-charge of a registered clinical laboratory unless he is a
licensed physician duly qualified in laboratory medicine and authorized by the Secretary of Health, such authorization to
be renewed annually.
 17

No license shall be granted or renewed by the Secretary of Health for the operation and maintenance of a clinical
laboratory unless such laboratory is under the administration, direction and supervision of an authorized physician, as
provided for in the preceding paragraph.

Corollarily, Sections 9(9.1)(1), 11 and 25(25.1)(1) of the DOH Administrative Order No. 49-B Series of 1988, otherwise
known as the Revised Rules and Regulations Governing the Registration, Operation and Maintenance of Clinical
Laboratories in the Philippines, read:

Sec. 9. Management of the Clinical Laboratory:

9.1 Head of the Clinical Laboratory: The head is that person who assumes technical and administrative supervision and
control of the activities in the laboratory.

For all categories of clinical laboratories, the head shall be a licensed physician certified by the Philippine Board of
Pathology in either Anatomic or Clinical Pathology or both provided that:

(1) This shall be mandatory for all categories of free-standing clinical laboratories; all tertiary category hospital laboratories
and for all secondary category hospital laboratories located in areas with sufficient available pathologist.

xxxx

Sec. 11. Reporting: All laboratory requests shall be considered as consultations between the requesting physician and
pathologist of the laboratory. As such all laboratory reports on various examinations of human specimens shall be
construed as consultation report and shall bear the name of the pathologist or his associate. No person in clinical
laboratory shall issue a report, orally or in writing, whole portions thereof without a directive from the pathologist or his
authorized associate and only to the requesting physician or his authorized representative except in emergencies when
the results may be released as authorized by the pathologist.

xxxx

Sec. 25. Violations:

25.1 The license to operate a clinical laboratory may be suspended or revoked by the Undersecretary of Health for
Standards and Regulation upon violation of R.A. 4688 or the rules and regulations issued in pursuance thereto or the
commission of the following acts by the persons owning or operating a clinical laboratory and the persons under their
authority.

(1) Operation of a Clinical Laboratory without a certified pathologist or qualified licensed physician authorized by the
Undersecretary of Health or without employing a registered medical technologist or a person not registered as a medical
technologist in such a position.

And Section 29(b) of R.A. No. 5527, otherwise known as The Philippine Medical Technology Act of 1969, reads:

Section 29. Penal Provisions.- Without prejudice to the provision of the Medical Act of 1959, as amended relating to illegal
practice of Medicine, the following shall be punished by a fine of not less than two thousand pesos nor more than five
thousand pesos, or imprisonment for not less than six months nor more than two years, or both, in the discretion of the
court:

xxxx

(b) Any medical technologist, even if duly registered, who shall practice medical technology in the Philippines without the
necessary supervision of a qualified pathologist or physician authorized by the Department of Health;

From the foregoing laws and rules, it is clear that a clinical laboratory must be administered, directed and supervised by a
licensed physician authorized by the Secretary of Health, like a pathologist who is specially trained in methods of
laboratory medicine; that the medical technologist must be under the supervision of the pathologist or a licensed
physician; and that the results of any examination may be released only to the requesting physician or his authorized
representative upon the direction of the laboratory pathologist.
 18

These rules are intended for the protection of the public by preventing performance of substandard clinical examinations
by laboratories whose personnel are not properly supervised. The public demands no less than an effective and efficient
performance of clinical laboratory examinations through compliance with the quality standards set by laws and
regulations.

We find that petitioner Garcia failed to comply with these standards.

First, CDC is not administered, directed and supervised by a licensed physician as required by law, but by Ma. Ruby C.
Calderon, a licensed Medical Technologist.[24] In the License to Open and Operate a Clinical Laboratory for the years
1993 and 1996 issued by Dr. Juan R. Naagas, M.D., Undersecretary for Health Facilities, Standards and Regulation,
defendant-appellee Castro was named as the head of CDC.[25] However, in his Answer with Counterclaim, he stated:

3. By way of affirmative and special defenses, defendant pathologist further avers and plead as follows:

Defendant pathologist is not the owner of the Community Diagnostic Center nor an employee of the same nor the
employer of its employees. Defendant pathologist comes to the Community Diagnostic Center when and where a problem
is referred to him. Its employees are licensed under the Medical Technology Law (Republic Act No. 5527) and are
certified by, and registered with, the Professional Regulation Commission after having passed their Board Examinations.
They are competent within the sphere of their own profession in so far as conducting laboratory examinations and are
allowed to sign for and in behalf of the clinical laboratory. The defendant pathologist, and all pathologists in general, are
hired by laboratories for purposes of complying with the rules and regulations and orders issued by the Department of
Health through the Bureau of Research and Laboratories. Defendant pathologist does not stay that long period of time at
the Community Diagnostic Center but only periodically or whenever a case is referred to him by the laboratory. Defendant
pathologist does not appoint or select the employees of the laboratory nor does he arrange or approve their schedules of
duty.[26]

Castro's infrequent visit to the clinical laboratory barely qualifies as an effective administrative supervision and control
over the activities in the laboratory. "Supervision and control" means the authority to act directly whenever a specific
function is entrusted by law or regulation to a subordinate; direct the performance of duty; restrain the commission of acts;
review, approve, revise or modify acts and decisions of subordinate officials or units.[27]

Second, Garcia conducted the HBsAG test of respondent Ranida without the supervision of defendant-appellee Castro,
who admitted that:

[He] does not know, and has never known or met, the plaintiff-patient even up to this time nor has he personally examined
any specimen, blood, urine or any other tissue, from the plaintiff-patient otherwise his own handwritten signature would
have appeared in the result and not merely stamped as shown in Annex "B" of the Amended Complaint.[28]

Last, the disputed HBsAG test result was released to respondent Ranida without the authorization of defendant-appellee
Castro.[29]

Garcia may not have intended to cause the consequences which followed after the release of the HBsAG test result.
However, his failure to comply with the laws and rules promulgated and issued for the protection of public safety and
interest is failure to observe that care which a reasonably prudent health care provider would observe. Thus, his act or
omission constitutes a breach of duty.

Indubitably, Ranida suffered injury as a direct consequence of Garcia's failure to comply with the mandate of the laws and
rules aforequoted. She was terminated from the service for failing the physical examination; suffered anxiety because of
the diagnosis; and was compelled to undergo several more tests. All these could have been avoided had the proper
safeguards been scrupulously followed in conducting the clinical examination and releasing the clinical report.

Article 20 of the New Civil Code provides:

Art. 20. Every person who, contrary to law, willfully or negligently causes damage to another, shall indemnify the latter for
the same.

The foregoing provision provides the legal basis for the award of damages to a party who suffers damage whenever one
commits an act in violation of some legal provision.[30] This was incorporated by the Code Commission to provide relief to
a person who suffers damage because another has violated some legal provision.[31]
 19

We find the Court of Appeals' award of moral damages reasonable under the circumstances bearing in mind the mental
trauma suffered by respondent Ranida who thought she was afflicted by Hepatitis B, making her "unfit or unsafe for any
type of employment."[32] Having established her right to moral damages, we see no reason to disturb the award of
exemplary damages and attorney's fees. Exemplary damages are imposed, by way of example or correction for the public
good, in addition to moral, temperate, liquidated or compensatory damages,[33] and attorney's fees may be recovered
when, as in the instant case, exemplary damages are awarded.[34]

WHEREFORE, the Decision of the Court of Appeals in CA-G.R. CV No. 58668 dated February 27, 2004 finding petitioner
Orlando D. Garcia, Jr. guilty of gross negligence and liable to pay to respondents P50,000.00 as moral damages,
P50,000.00 as exemplary damages, and P25,000.00 as attorney's fees, is AFFIRMED.

SO ORDERED.
 20

G. R. No. 178763, April 21, 2009

PETER PAUL PATRICK LUCAS, FATIMA GLADYS LUCAS, ABBEYGAIL LUCAS AND GILLIAN LUCAS,
PETITIONERS, VS. DR. PROSPERO MA. C. TUAO, RESPONDENT.

DECISION
CHICO-NAZARIO, J.:

In this petition for review on certiorari[1] under Rule 45 of the Revised Rules of Court, petitioners Peter Paul Patrick
Lucas, Fatima Gladys Lucas, Abbeygail Lucas and Gillian Lucas seek the reversal of the 27 September 2006 Decision[2]
and 3 July 2007 Resolution,[3] both of the Court of Appeals in CA-G.R. CV No. 68666, entitled "Peter Paul Patrick Lucas,
Fatima Gladys Lucas, Abbeygail Lucas and Gillian Lucas v. Prospero Ma. C. Tuao."

In the questioned decision and resolution, the Court of Appeals affirmed the 14 July 2000 Decision of the Regional Trial
Court (RTC), Branch 150, Makati City, dismissing the complaint filed by petitioners in a civil case entitled, "Peter Paul
Patrick Lucas, Fatima Gladys Lucas, Abbeygail Lucas and Gillian Lucas v. Prospero Ma. C. Tuao," docketed as Civil
Case No. 92-2482.

From the record of the case, the established factual antecedents of the present petition are:

Sometime in August 1988, petitioner Peter Paul Patrick Lucas (Peter) contracted "sore eyes" in his right eye.

On 2 September 1988, complaining of a red right eye and swollen eyelid, Peter made use of his health care insurance
issued by Philamcare Health Systems, Inc. (Philamcare), for a possible consult. The Philamcare Coordinator, Dr. Edwin
Oca, M.D., referred Peter to respondent, Dr. Prospero Ma. C. Tuao, M.D. (Dr. Tuao), an ophthalmologist at St. Luke's
Medical Center, for an eye consult.

Upon consultation with Dr. Tuao, Peter narrated that it had been nine (9) days since the problem with his right eye
began; and that he was already taking Maxitrol to address the problem in his eye. According to Dr. Tuao, he performed
"ocular routine examination" on Peter's eyes, wherein: (1) a gross examination of Peter's eyes and their surrounding area
was made; (2) Peter's visual acuity were taken; (3) Peter's eyes were palpated to check the intraocular pressure of each;
(4) the motility of Peter's eyes was observed; and (5) the ophthalmoscopy[4] on Peter's eyes was used. On that particular
consultation, Dr. Tuao diagnosed that Peter was suffering from conjunctivitis[5] or "sore eyes." Dr. Tuao then
prescribed Spersacet-C[6] eye drops for Peter and told the latter to return for follow-up after one week.

As instructed, Peter went back to Dr. Tuao on 9 September 1988. Upon examination, Dr. Tuao told Peter that the "sore
eyes" in the latter's right eye had already cleared up and he could discontinue the Spersacet-C. However, the same eye
developed Epidemic Kerato Conjunctivitis (EKC),[7] a viral infection. To address the new problem with Peter's right eye,
Dr. Tuao prescribed to the former a steroid-based eye drop called Maxitrol,[8] a dosage of six (6) drops per day.[9] To
recall, Peter had already been using Maxitrol prior to his consult with Dr. Tuao.

On 21 September 1988, Peter saw Dr. Tuao for a follow-up consultation. After examining both of Peter's eyes, Dr. Tuao
instructed the former to taper down[10] the dosage of Maxitrol, because the EKC in his right eye had already resolved. Dr.
Tuao specifically cautioned Peter that, being a steroid, Maxitrol had to be withdrawn gradually; otherwise, the EKC might
recur.[11]

Complaining of feeling as if there was something in his eyes, Peter returned to Dr. Tuao for another check-up on 6
October 1988. Dr. Tuao examined Peter's eyes and found that the right eye had once more developed EKC. So, Dr.
Tuao instructed Peter to resume the use of Maxitrol at six (6) drops per day.

On his way home, Peter was unable to get a hold of Maxitrol, as it was out of stock. Consequently, Peter was told by Dr.
Tuano to take, instead, Blephamide[12] another steroid-based medication, but with a lower concentration, as substitute for
the unavailable Maxitrol, to be used three (3) times a day for five (5) days; two (2) times a day for five (5) days; and then
just once a day.[13]

Several days later, on 18 October 1988, Peter went to see Dr. Tuao at his clinic, alleging severe eye pain, feeling as if
his eyes were about to "pop-out," a headache and blurred vision. Dr. Tuao examined Peter's eyes and discovered that
the EKC was again present in his right eye. As a result, Dr. Tuao told Peter to resume the maximum dosage of
Blephamide.
 21

Dr. Tuao saw Peter once more at the former's clinic on 4 November 1988. Dr. Tuao's examination showed that only the
periphery of Peter's right eye was positive for EKC; hence, Dr. Tuao prescribed a lower dosage of Blephamide.

It was also about this time that Fatima Gladys Lucas (Fatima), Peter's spouse, read the accompanying literature of
Maxitrol and found therein the following warning against the prolonged use of such steroids:

WARNING:

Prolonged use may result in glaucoma, with damage to the optic nerve, defects in visual acuity and fields of vision, and
posterior, subcapsular cataract formation. Prolonged use may suppress the host response and thus increase the hazard
of secondary ocular infractions, in those diseases causing thinning of the cornea or sclera, perforations have been known
to occur with the use of topical steroids. In acute purulent conditions of the eye, steroids may mask infection or enhance
existing infection. If these products are used for 10 days or longer, intraocular pressure should be routinely monitored
even though it may be difficult in children and uncooperative patients.

Employment of steroid medication in the treatment of herpes simplex requires great caution.

xxxx

ADVERSE REACTIONS:

Adverse reactions have occurred with steroid/anti-infective combination drugs which can be attributed to the steroid
component, the anti-infective component, or the combination. Exact incidence figures are not available since no
denominator of treated patients is available.

Reactions occurring most often from the presence of the anti-infective ingredients are allergic sensitizations. The
reactions due to the steroid component in decreasing order to frequency are elevation of intra-ocular pressure (IOP) with
possible development of glaucoma, infrequent optic nerve damage; posterior subcapsular cataract formation; and delayed
wound healing.

Secondary infection: The development of secondary has occurred after use of combination containing steroids and
antimicrobials. Fungal infections of the correa are particularly prone to develop coincidentally with long-term applications
of steroid. The possibility of fungal invasion must be considered in any persistent corneal ulceration where steroid
treatment has been used.

Secondary bacterial ocular infection following suppression of host responses also occurs.

On 26 November 1988, Peter returned to Dr. Tuao's clinic, complaining of "feeling worse."[14] It appeared that the EKC
had spread to the whole of Peter's right eye yet again. Thus, Dr. Tuao instructed Peter to resume the use of Maxitrol.
Petitioners averred that Peter already made mention to Dr. Tuao during said visit of the above-quoted warning against
the prolonged use of steroids, but Dr. Tuao supposedly brushed aside Peter's concern as mere paranoia, even assuring
him that the former was taking care of him (Peter).

Petitioners further alleged that after Peter's 26 November 1988 visit to Dr. Tuao, Peter continued to suffer pain in his
right eye, which seemed to "progress," with the ache intensifying and becoming more frequent.

Upon waking in the morning of 13 December 1988, Peter had no vision in his right eye. Fatima observed that Peter's right
eye appeared to be bloody and swollen.[15] Thus, spouses Peter and Fatima rushed to the clinic of Dr. Tuao. Peter
reported to Dr. Tuao that he had been suffering from constant headache in the afternoon and blurring of vision.

Upon examination, Dr. Tuao noted the hardness of Peter's right eye. With the use of a tonometer[16] to verify the exact
intraocular pressure[17] (IOP) of Peter's eyes, Dr. Tuao discovered that the tension in Peter's right eye was 39.0 Hg,
while that of his left was 17.0 Hg.[18] Since the tension in Peter's right eye was way over the normal IOP, which merely
ranged from 10.0 Hg to 21.0 Hg,[19] Dr. Tuao ordered[20] him to immediately discontinue the use of Maxitrol and
prescribed to the latter Diamox[21] and Normoglaucon, instead.[22] Dr. Tuao also required Peter to go for daily check-up
in order for the former to closely monitor the pressure of the latter's eyes.

On 15 December 1988, the tonometer reading of Peter's right eye yielded a high normal level, i.e., 21.0 Hg. Hence, Dr.
Tuao told Peter to continue using Diamox and Normoglaucon. But upon Peter's complaint of "stomach pains and tingling
sensation in his fingers,"[23] Dr. Tuao discontinued Peter's use of Diamox.[24]
 22

Peter went to see another ophthalmologist, Dr. Ramon T. Batungbacal (Dr. Batungbacal), on 21 December 1988, who
allegedly conducted a complete ophthalmological examination of Peter's eyes. Dr. Batungbacal's diagnosis was
Glaucoma[25] O.D.[26] He recommended Laser Trabeculoplasty[27] for Peter's right eye.

When Peter returned to Dr. Tuao on 23 December 1988,[28] the tonometer measured the IOP of Peter's right eye to be
41.0 Hg,[29] again, way above normal. Dr. Tuao addressed the problem by advising Peter to resume taking Diamox
along with Normoglaucon.

During the Christmas holidays, Peter supposedly stayed in bed most of the time and was not able to celebrate the season
with his family because of the debilitating effects of Diamox.[30]

On 28 December 1988, during one of Peter's regular follow-ups with Dr. Tuao, the doctor conducted another ocular
routine examination of Peter's eyes. Dr. Tuao noted the recurrence of EKC in Peter's right eye. Considering, however,
that the IOP of Peter's right eye was still quite high at 41.0 Hg, Dr. Tuao was at a loss as to how to balance the treatment
of Peter's EKC vis--vis the presence of glaucoma in the same eye. Dr. Tuao, thus, referred Peter to Dr. Manuel B.
Agulto, M.D. (Dr. Agulto), another ophthalmologist specializing in the treatment of glaucoma.[31] Dr. Tuao's letter of
referral to Dr. Agulto stated that:

Referring to you Mr. Peter Lucas for evaluation & possible management. I initially saw him Sept. 2, 1988 because of
conjunctivitis. The latter resolved and he developed EKC for which I gave Maxitrol. The EKC was recurrent after stopping
steroid drops. Around 1 month of steroid treatment, he noted blurring of vision & pain on the R. however, I continued the
steroids for the sake of the EKC. A month ago, I noted iris atrophy, so I took the IOP and it was definitely elevated. I
stopped the steroids immediately and has (sic) been treating him medically.

It seems that the IOP can be controlled only with oral Diamox, and at the moment, the EKC has recurred and I'm in a fix
whether to resume the steroid or not considering that the IOP is still uncontrolled.[32]

On 29 December 1988, Peter went to see Dr. Agulto at the latter's clinic. Several tests were conducted thereat to evaluate
the extent of Peter's condition. Dr. Agulto wrote Dr. Tuao a letter containing the following findings and recommendations:

Thanks for sending Peter Lucas. On examination conducted vision was 20/25 R and 20/20L. Tension curve 19 R and 15 L
at 1210 H while on Normoglaucon BID OD & Diamox tab every 6h po.

Slit lamp evaluation[33] disclosed subepithelial corneal defect outer OD. There was circumferential peripheral iris atrophy,
OD. The lenses were clear.

Funduscopy[34] showed vertical cup disc of 0.85 R and 0.6 L with temporal slope R>L.

Zeiss gonioscopy[35] revealed basically open angles both eyes with occasional PAS,[36] OD.

Rolly, I feel that Peter Lucas has really sustained significant glaucoma damage. I suggest that we do a baseline visual
fields and push medication to lowest possible levels. If I may suggest further, I think we should prescribe Timolol[37]
BID[38] OD in lieu of Normoglaucon. If the IOP is still inadequate, we may try D'epifrin[39] BID OD (despite low PAS). I'm
in favor of retaining Diamox or similar CAI.[40]

If fields show further loss in say - 3 mos. then we should consider trabeculoplasty.

I trust that this approach will prove reasonable for you and Peter.[41]

Peter went to see Dr. Tuao on 31 December 1988, bearing Dr. Agulto's aforementioned letter. Though Peter's right and
left eyes then had normal IOP of 21.0 Hg and 17.0 Hg, respectively, Dr. Tuao still gave him a prescription for Timolol
B.I.D. so Peter could immediately start using said medication. Regrettably, Timolol B.I.D. was out of stock, so Dr. Tuao
instructed Peter to just continue using Diamox and Normoglaucon in the meantime.

Just two days later, on 2 January 1989, the IOP of Peter's right eye remained elevated at 21.0 Hg,[42] as he had been
without Diamox for the past three (3) days.

On 4 January 1989, Dr. Tuao conducted a visual field study[43] of Peter's eyes, which revealed that the latter had
tubular vision[44] in his right eye, while that of his left eye remained normal. Dr. Tuao directed Peter to religiously use the
 23

Diamox and Normoglaucon, as the tension of the latter's right eye went up even further to 41.0 Hg in just a matter of two
(2) days, in the meantime that Timolol B.I.D. and D'epifrin were still not available in the market. Again, Dr. Tuao advised
Peter to come for regular check-up so his IOP could be monitored.

Obediently, Peter went to see Dr. Tuao on the 7th, 13th, 16th and 20th of January 1989 for check-up and IOP
monitoring.

In the interregnum, however, Peter was prodded by his friends to seek a second medical opinion. On 13 January 1989,
Peter consulted Dr. Jaime Lapuz, M.D. (Dr. Lapuz), an ophthalmologist, who, in turn, referred Peter to Dr. Mario V.
Aquino, M.D. (Dr. Aquino), another ophthalmologist who specializes in the treatment of glaucoma and who could
undertake the long term care of Peter's eyes.

According to petitioners, after Dr. Aquino conducted an extensive evaluation of Peter's eyes, the said doctor informed
Peter that his eyes were relatively normal, though the right one sometimes manifested maximum borderline tension. Dr.
Aquino also confirmed Dr. Tuao's diagnosis of tubular vision in Peter's right eye. Petitioners claimed that Dr. Aquino
essentially told Peter that the latter's condition would require lifetime medication and follow-ups.

In May 1990 and June 1991, Peter underwent two (2) procedures of laser trabeculoplasty to attempt to control the high
IOP of his right eye.

Claiming to have steroid-induced glaucoma[45] and blaming Dr. Tuao for the same, Peter, joined by: (1) Fatima, his
spouse[46]; (2) Abbeygail, his natural child[47]; and (3) Gillian, his legitimate child[48] with Fatima, instituted on 1
September 1992, a civil complaint for damages against Dr. Tuao, before the RTC, Branch 150, Quezon City. The case
was docketed as Civil Case No. 92-2482.

In their Complaint, petitioners specifically averred that as the "direct consequence of [Peter's] prolonged use of Maxitrol,
[he] suffered from steroid induced glaucoma which caused the elevation of his intra-ocular pressure. The elevation of the
intra-ocular pressure of [Peter's right eye] caused the impairment of his vision which impairment is not curable and may
even lead to total blindness."[49]

Petitioners additionally alleged that the visual impairment of Peter's right eye caused him and his family so much grief.
Because of his present condition, Peter now needed close medical supervision forever; he had already undergone two (2)
laser surgeries, with the possibility that more surgeries were still needed in the future; his career in sports casting had
suffered and was continuing to suffer;[50] his anticipated income had been greatly reduced as a result of his "limited"
capacity; he continually suffered from "headaches, nausea, dizziness, heart palpitations, rashes, chronic rhinitis,
sinusitis,"[51] etc.; Peter's relationships with his spouse and children continued to be strained, as his condition made him
highly irritable and sensitive; his mobility and social life had suffered; his spouse, Fatima, became the breadwinner in the
family;[52] and his two children had been deprived of the opportunity for a better life and educational prospects.
Collectively, petitioners lived in constant fear of Peter becoming completely blind.[53]

In the end, petitioners sought pecuniary award for their supposed pain and suffering, which were ultimately brought about
by Dr. Tuao's grossly negligent conduct in prescribing to Peter the medicine Maxitrol for a period of three (3) months,
without monitoring Peter's IOP, as required in cases of prolonged use of said medicine, and notwithstanding Peter's
constant complaint of intense eye pain while using the same. Petitioners particularly prayed that Dr. Tuao be adjudged
liable for the following amounts:

The amount of P2,000,000.00 to plaintiff Peter Lucas as and by way of compensation for his impaired vision.

The amount of P300,000.00 to spouses Lucas as and by way of actual damages plus such additional amounts that may
be proven during trial.

The amount of P1,000,000.00 as and by way of moral damages.

The amount of P500,000.00 as and by way of exemplary damages.

The amount of P200,000.00 as and by way of attorney's fees plus costs of suit.[54]
 24

In rebutting petitioners' complaint, Dr. Tuao asserted that the "treatment made by [him] more than three years ago has
no causal connection to [Peter's] present glaucoma or condition."[55] Dr. Tuao explained that "[d]rug-induced glaucoma
is temporary and curable, steroids have the side effect of increasing intraocular pressure. Steroids are prescribed to treat
Epidemic Kerato Conjunctivitis or EKC which is an infiltration of the cornea as a result of conjunctivitis or sore eyes."[56]
Dr. Tuao also clarified that (1) "[c]ontrary to [petitioners'] fallacious claim, [he] did NOT continually prescribe the drug
Maxitrol which contained steroids for any prolonged period"[57] and "[t]he truth was the Maxitrol was discontinued x x x as
soon as EKC disappeared and was resumed only when EKC reappeared"[58]; (2) the entire time he was treating Peter,
he "continually monitored the intraocular pressure of [Peter's eyes] by palpating the eyes and by putting pressure on the
eyeballs," and no hardening of the same could be detected, which meant that there was no increase in the tension or IOP,
a possible side reaction to the use of steroid medications; and (3) it was only on 13 December 1988 that Peter complained
of a headache and blurred vision in his right eye, and upon measuring the IOP of said eye, it was determined for the first
time that the IOP of the right eye had an elevated value.

But granting for the sake of argument that the "steroid treatment of [Peter's] EKC caused the steroid induced
glaucoma,"[59] Dr. Tuao argued that:

[S]uch condition, i.e., elevated intraocular pressure, is temporary. As soon as the intake of steroids is discontinued, the
intraocular pressure automatically is reduced. Thus, [Peter's] glaucoma can only be due to other causes not attributable to
steroids, certainly not attributable to [his] treatment of more than three years ago x x x.

From a medical point of view, as revealed by more current examination of [Peter], the latter's glaucoma can only be long
standing glaucoma, open angle glaucoma, because of the large C:D ratio. The steroids provoked the latest glaucoma to
be revealed earlier as [Peter] remained asymptomatic prior to steroid application. Hence, the steroid treatment was in fact
beneficial to [Peter] as it revealed the incipient open angle glaucoma of [Peter] to allow earlier treatment of the same.[60]

In a Decision dated 14 July 2000, the RTC dismissed Civil Case No. 92-2482 "for insufficiency of evidence."[61] The
decretal part of said Decision reads:

Wherefore, premises considered, the instant complaint is dismissed for insufficiency of evidence. The counter claim (sic)
is likewise dismissed in the absence of bad faith or malice on the part of plaintiff in filing the suit.[62]

The RTC opined that petitioners failed to prove by preponderance of evidence that Dr. Tuao was negligent in his
treatment of Peter's condition. In particular, the record of the case was bereft of any evidence to establish that the steroid
medication and its dosage, as prescribed by Dr. Tuao, caused Peter's glaucoma. The trial court reasoned that the
"recognized standards of the medical community has not been established in this case, much less has causation been
established to render [Tuao] liable."[63] According to the RTC:

[Petitioners] failed to establish the duty required of a medical practitioner against which Peter Paul's treatment by
defendant can be compared with. They did not present any medical expert or even a medical doctor to convince and
expertly explain to the court the established norm or duty required of a physician treating a patient, or whether the non
taking (sic) by Dr. Tuao of Peter Paul's pressure a deviation from the norm or his non-discovery of the glaucoma in the
course of treatment constitutes negligence. It is important and indispensable to establish such a standard because once it
is established, a medical practitioner who departed thereof breaches his duty and commits negligence rendering him
liable. Without such testimony or enlightenment from an expert, the court is at a loss as to what is then the established
norm of duty of a physician against which defendant's conduct can be compared with to determine negligence.[64]

The RTC added that in the absence of "any medical evidence to the contrary, this court cannot accept [petitioners'] claim
that the use of steroid is the proximate cause of the damage sustained by [Peter's] eye."[65]

Correspondingly, the RTC accepted Dr. Tuao's medical opinion that "Peter Paul must have been suffering from normal
tension glaucoma, meaning, optic nerve damage was happening but no elevation of the eye pressure is manifested, that
the steroid treatment actually unmasked the condition that resulted in the earlier treatment of the glaucoma. There is
nothing in the record to contradict such testimony. In fact, plaintiff's Exhibit `S' even tends to support them."

Undaunted, petitioners appealed the foregoing RTC decision to the Court of Appeals. Their appeal was docketed as CA-
G.R. CV No. 68666.

On 27 September 2006, the Court of Appeals rendered a decision in CA-G.R. CV No. 68666 denying petitioners' recourse
and affirming the appealed RTC Decision. The fallo of the judgment of the appellate court states:
 25

WHEREFORE, the Decision appealed from is AFFIRMED.[66]

The Court of Appeals faulted petitioners because they -

[D]id not present any medical expert to testify that Dr. Tuano's prescription of Maxitrol and Blephamide for the treatment of
EKC on Peter's right eye was not proper and that his palpation of Peter's right eye was not enough to detect adverse
reaction to steroid. Peter testified that Dr. Manuel Agulto told him that he should not have used steroid for the treatment of
EKC or that he should have used it only for two (2) weeks, as EKC is only a viral infection which will cure by itself.
However, Dr. Agulto was not presented by [petitioners] as a witness to confirm what he allegedly told Peter and, therefore,
the latter's testimony is hearsay. Under Rule 130, Section 36 of the Rules of Court, a witness can testify only to those
facts which he knows of his own personal knowledge, x x x. Familiar and fundamental is the rule that hearsay testimony is
inadmissible as evidence.[67]

Like the RTC, the Court of Appeals gave great weight to Dr. Tuao's medical judgment, specifically the latter's explanation
that:

[W]hen a doctor sees a patient, he cannot determine whether or not the latter would react adversely to the use of steroids,
that it was only on December 13, 1989, when Peter complained for the first time of headache and blurred vision that he
observed that the pressure of the eye of Peter was elevated, and it was only then that he suspected that Peter belongs to
the 5% of the population who reacts adversely to steroids.[68]

Petitioners' Motion for Reconsideration was denied by the Court of Appeals in a Resolution dated 3 July 2007.

Hence, this Petition for Review on Certiorari under Rule 45 of the Revised Rules of Court premised on the following
assignment of errors:

I.

THE COURT OF APPEALS COMMITTED GRAVE REVERSIBLE ERROR IN AFFIRMING THE DECISION OF THE
TRIAL COURT DISMISSING THE PETITIONERS' COMPLAINT FOR DAMAGES AGAINST THE RESPONDENT ON
THE GROUND OF INSUFFICIENCY OF EVIDENCE;

II.

THE COURT OF APPEALS COMMITTED GRAVE REVERSIBLE ERROR IN DISMISSING THE PETITIONERS'
COMPLAINT FOR DAMAGES AGAINST THE RESPONDENT ON THE GROUND THAT NO MEDICAL EXPERT WAS
PRESENTED BY THE PETITIONERS TO PROVE THEIR CLAIM FOR MEDICAL NEGLIGENCE AGAINST THE
RESPONDENT; AND

III.

THE COURT OF APPEALS COMMITTED GRAVE REVERSIBLE ERROR IN NOT FINDING THE RESPONDENT
LIABLE TO THE PETITIONERS' FOR ACTUAL, MORAL AND EXEMPLARY DAMAGES, ASIDE FROM ATTORNEY'S
FEES, COSTS OF SUIT, AS A RESULT OF HIS GROSS NEGLIGENCE.[69]

A reading of the afore-quoted reversible errors supposedly committed by the Court of Appeals in its Decision and
Resolution would reveal that petitioners are fundamentally assailing the finding of the Court of Appeals that the evidence
on record is insufficient to establish petitioners' entitlement to any kind of damage. Therefore, it could be said that the sole
issue for our resolution in the Petition at bar is whether the Court of Appeals committed reversible error in affirming the
judgment of the RTC that petitioners failed to prove, by preponderance of evidence, their claim for damages against Dr.
Tuao.

Evidently, said issue constitutes a question of fact, as we are asked to revisit anew the factual findings of the Court of
Appeals, as well as of the RTC. In effect, petitioners would have us sift through the evidence on record and pass upon
 26

whether there is sufficient basis to establish Dr. Tuao's negligence in his treatment of Peter's eye condition. This
question clearly involves a factual inquiry, the determination of which is not within the ambit of this Court's power of review
under Rule 45 of the 1997 Rules Civil Procedure, as amended.[70]

Elementary is the principle that this Court is not a trier of facts; only errors of law are generally reviewed in petitions for
review on certiorari criticizing decisions of the Court of Appeals. Questions of fact are not entertained.[71]

Nonetheless, the general rule that only questions of law may be raised on appeal in a petition for review under Rule 45 of
the Rules of Court admits of certain exceptions, including the circumstance when the finding of fact of the Court of
Appeals is premised on the supposed absence of evidence, but is contradicted by the evidence on record. Although
petitioners may not explicitly invoke said exception, it may be gleaned from their allegations and arguments in the instant
Petition.

Petitioners contend, that "[c]ontrary to the findings of the Honorable Court of Appeals, [they] were more than able to
establish that: Dr. Tuao ignored the standard medical procedure for ophthalmologists, administered medication with
recklessness, and exhibited an absence of competence and skills expected from him."[72] Petitioners reject the necessity
of presenting expert and/or medical testimony to establish (1) the standard of care respecting the treatment of the disorder
affecting Peter's eye; and (2) whether or not negligence attended Dr. Tuao's treatment of Peter, because, in their words -

That Dr. Tuao was grossly negligent in the treatment of Peter's simple eye ailment is a simple case of cause and effect.
With mere documentary evidence and based on the facts presented by the petitioners, respondent can readily be held
liable for damages even without any expert testimony. In any case, however, and contrary to the finding of the trial court
and the Court of Appeals, there was a medical expert presented by the petitioner showing the recklessness committed by
[Dr. Tuao] - Dr. Tuao himself. [Emphasis supplied.]

They insist that Dr. Tuao himself gave sufficient evidence to establish his gross negligence that ultimately caused the
impairment of the vision of Peter's right eye,[73] i.e., that "[d]espite [Dr. Tuao's] knowledge that 5% of the population
reacts adversely to Maxitrol, [he] had no qualms whatsoever in prescribing said steroid to Peter without first determining
whether or not the (sic) Peter belongs to the 5%."[74]

We are not convinced. The judgments of both the Court of Appeals and the RTC are in accord with the evidence on
record, and we are accordingly bound by the findings of fact made therein.

Petitioners' position, in sum, is that Peter's glaucoma is the direct result of Dr. Tuao's negligence in his improper
administration of the drug Maxitrol; "thus, [the latter] should be liable for all the damages suffered and to be suffered by
[petitioners]."[75] Clearly, the present controversy is a classic illustration of a medical negligence case against a physician
based on the latter's professional negligence. In this type of suit, the patient or his heirs, in order to prevail, is required to
prove by preponderance of evidence that the physician failed to exercise that degree of skill, care, and learning
possessed by other persons in the same profession; and that as a proximate result of such failure, the patient or his heirs
suffered damages.

For lack of a specific law geared towards the type of negligence committed by members of the medical profession, such
claim for damages is almost always anchored on the alleged violation of Article 2176 of the Civil Code, which states that:

ART. 2176. Whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay for
the damage done. Such fault or negligence, if there is no pre-existing contractual relation between the parties, is called a
quasi-delict and is governed by the provisions of this Chapter.

In medical negligence cases, also called medical malpractice suits, there exist a physician-patient relationship between
the doctor and the victim. But just like any other proceeding for damages, four essential (4) elements i.e., (1) duty; (2)
breach; (3) injury; and (4) proximate causation,[76] must be established by the plaintiff/s. All the four (4) elements must
co-exist in order to find the physician negligent and, thus, liable for damages.

When a patient engages the services of a physician, a physician-patient relationship is generated. And in accepting a
case, the physician, for all intents and purposes, represents that he has the needed training and skill possessed by
physicians and surgeons practicing in the same field; and that he will employ such training, care, and skill in the treatment
of the patient.[77] Thus, in treating his patient, a physician is under a duty to [the former] to exercise that degree of care,
skill and diligence which physicians in the same general neighborhood and in the same general line of practice ordinarily
possess and exercise in like cases.[78] Stated otherwise, the physician has the duty to use at least the same level of care
that any other reasonably competent physician would use to treat the condition under similar circumstances.
 27

This standard level of care, skill and diligence is a matter best addressed by expert medical testimony, because the
standard of care in a medical malpractice case is a matter peculiarly within the knowledge of experts in the field.[79]

There is breach of duty of care, skill and diligence, or the improper performance of such duty, by the attending physician
when the patient is injured in body or in health [and this] constitutes the actionable malpractice.[80] Proof of such breach
must likewise rest upon the testimony of an expert witness that the treatment accorded to the patient failed to meet the
standard level of care, skill and diligence which physicians in the same general neighborhood and in the same general
line of practice ordinarily possess and exercise in like cases.

Even so, proof of breach of duty on the part of the attending physician is insufficient, for there must be a causal
connection between said breach and the resulting injury sustained by the patient. Put in another way, in order that there
may be a recovery for an injury, it must be shown that the "injury for which recovery is sought must be the legitimate
consequence of the wrong done; the connection between the negligence and the injury must be a direct and natural
sequence of events, unbroken by intervening efficient causes";[81] that is, the negligence must be the proximate cause of
the injury. And the proximate cause of an injury is that cause, which, in the natural and continuous sequence, unbroken by
any efficient intervening cause, produces the injury, and without which the result would not have occurred.[82]

Just as with the elements of duty and breach of the same, in order to establish the proximate cause [of the injury] by a
preponderance of the evidence in a medical malpractice action, [the patient] must similarly use expert testimony, because
the question of whether the alleged professional negligence caused [the patient's] injury is generally one for specialized
expert knowledge beyond the ken of the average layperson; using the specialized knowledge and training of his field, the
expert's role is to present to the [court] a realistic assessment of the likelihood that [the physician's] alleged negligence
caused [the patient's] injury.[83]

From the foregoing, it is apparent that medical negligence cases are best proved by opinions of expert witnesses
belonging in the same general neighborhood and in the same general line of practice as defendant physician or surgeon.
The deference of courts to the expert opinion of qualified physicians [or surgeons] stems from the former's realization that
the latter possess unusual technical skills which laymen in most instances are incapable of intelligently evaluating;[84]
hence, the indispensability of expert testimonies.

In the case at bar, there is no question that a physician-patient relationship developed between Dr. Tuao and Peter when
Peter went to see the doctor on 2 September 1988, seeking a consult for the treatment of his sore eyes. Admittedly, Dr.
Tuao, an ophthalmologist, prescribed Maxitrol when Peter developed and had recurrent EKC. Maxitrol or
neomycin/polymyxin B sulfates/dexamethasone ophthalmic ointment is a multiple-dose anti-infective steroid combination
in sterile form for topical application.[85] It is the drug which petitioners claim to have caused Peter's glaucoma.

However, as correctly pointed out by the Court of Appeals, "[t]he onus probandi was on the patient to establish before the
trial court that the physicians ignored standard medical procedure, prescribed and administered medication with
recklessness and exhibited an absence of the competence and skills expected of general practitioners similarly
situated."[86] Unfortunately, in this case, there was absolute failure on the part of petitioners to present any expert
testimony to establish: (1) the standard of care to be implemented by competent physicians in treating the same condition
as Peter's under similar circumstances; (2) that, in his treatment of Peter, Dr. Tuao failed in his duty to exercise said
standard of care that any other competent physician would use in treating the same condition as Peter's under similar
circumstances; and (3) that the injury or damage to Peter's right eye, i.e., his glaucoma, was the result of his use of
Maxitrol, as prescribed by Dr. Tuao. Petitioners' failure to prove the first element alone is already fatal to their cause.

Petitioners maintain that Dr. Tuao failed to follow in Peter's case the required procedure for the prolonged use of
Maxitrol. But what is actually the required procedure in situations such as in the case at bar? To be precise, what is the
standard operating procedure when ophthalmologists prescribe steroid medications which, admittedly, carry some
modicum of risk?

Absent a definitive standard of care or diligence required of Dr. Tuao under the circumstances, we have no means to
determine whether he was able to comply with the same in his diagnosis and treatment of Peter. This Court has no
yardstick upon which to evaluate or weigh the attendant facts of this case to be able to state with confidence that the acts
complained of, indeed, constituted negligence and, thus, should be the subject of pecuniary reparation.

Petitioners assert that prior to prescribing Maxitrol, Dr. Tuao should have determined first whether Peter was a "steroid
responder."[87] Yet again, petitioners did not present any convincing proof that such determination is actually part of the
standard operating procedure which ophthalmologists should unerringly follow prior to prescribing steroid medications.
 28

In contrast, Dr. Tuao was able to clearly explain that what is only required of ophthalmologists, in cases such as Peter's,
is the conduct of standard tests/procedures known as "ocular routine examination,"[88] composed of five (5)
tests/procedures - specifically, gross examination of the eyes and the surrounding area; taking of the visual acuity of the
patient; checking the intraocular pressure of the patient; checking the motility of the eyes; and using ophthalmoscopy on
the patient's eye - and he did all those tests/procedures every time Peter went to see him for follow-up consultation and/or
check-up.

We cannot but agree with Dr. Tuao's assertion that when a doctor sees a patient, he cannot determine immediately
whether the latter would react adversely to the use of steroids; all the doctor can do is map out a course of treatment
recognized as correct by the standards of the medical profession. It must be remembered that a physician is not an
insurer of the good result of treatment. The mere fact that the patient does not get well or that a bad result occurs does
not in itself indicate failure to exercise due care.[89] The result is not determinative of the performance [of the physician]
and he is not required to be infallible.[90]

Moreover, that Dr. Tuao saw it fit to prescribe Maxitrol to Peter was justified by the fact that the latter was already using
the same medication when he first came to see Dr. Tuao on 2 September 1988 and had exhibited no previous untoward
reaction to that particular drug. [91]

Also, Dr. Tuao categorically denied petitioners' claim that he never monitored the tension of Peter's eyes while the latter
was on Maxitrol. Dr. Tuao testified that he palpated Peter's eyes every time the latter came for a check-up as part of the
doctor's ocular routine examination, a fact which petitioners failed to rebut. Dr. Tuao's regular conduct of examinations
and tests to ascertain the state of Peter's eyes negate the very basis of petitioners' complaint for damages. As to whether
Dr. Tuao's actuations conformed to the standard of care and diligence required in like circumstances, it is presumed to
have so conformed in the absence of evidence to the contrary.

Even if we are to assume that Dr. Tuao committed negligent acts in his treatment of Peter's condition, the causal
connection between Dr. Tuao's supposed negligence and Peter's injury still needed to be established. The critical and
clinching factor in a medical negligence case is proof of the causal connection between the negligence which the
evidence established and the plaintiff's injuries.[92] The plaintiff must plead and prove not only that he has been injured
and defendant has been at fault, but also that the defendant's fault caused the injury. A verdict in a malpractice action
cannot be based on speculation or conjecture. Causation must be proven within a reasonable medical probability based
upon competent expert testimony.[93]

The causation between the physician's negligence and the patient's injury may only be established by the presentation of
proof that Peter's glaucoma would not have occurred but for Dr. Tuao's supposed negligent conduct. Once more,
petitioners failed in this regard.

Dr. Tuao does not deny that the use of Maxitrol involves the risk of increasing a patient's IOP. In fact, this was the reason
why he made it a point to palpate Peter's eyes every time the latter went to see him -- so he could monitor the tension of
Peter's eyes. But to say that said medication conclusively caused Peter's glaucoma is purely speculative. Peter was
diagnosed with open-angle glaucoma. This kind of glaucoma is characterized by an almost complete absence of
symptoms and a chronic, insidious course.[94] In open-angle glaucoma, halos around lights and blurring of vision do not
occur unless there has been a sudden increase in the intraocular vision.[95] Visual acuity remains good until late in the
course of the disease.[96] Hence, Dr. Tuao claims that Peter's glaucoma "can only be long standing x x x because of the
large C:D[97] ratio," and that "[t]he steroids provoked the latest glaucoma to be revealed earlier" was a blessing in
disguise "as [Peter] remained asymptomatic prior to steroid application."

Who between petitioners and Dr. Tuao is in a better position to determine and evaluate the necessity of using Maxitrol to
cure Peter's EKC vis--vis the attendant risks of using the same?

That Dr. Tuao has the necessary training and skill to practice his chosen field is beyond cavil. Petitioners do not dispute
Dr. Tuao's qualifications - that he has been a physician for close to a decade and a half at the time Peter first came to
see him; that he has had various medical training; that he has authored numerous papers in the field of ophthalmology,
here and abroad; that he is a Diplomate of the Philippine Board of Ophthalmology; that he occupies various teaching
posts (at the time of the filing of the present complaint, he was the Chair of the Department of Ophthalmology and an
Associate Professor at the University of the Philippines-Philippine General Hospital and St. Luke's Medical Center,
respectively); and that he held an assortment of positions in numerous medical organizations like the Philippine Medical
Association, Philippine Academy of Ophthalmology, Philippine Board of Ophthalmology, Philippine Society of Ophthalmic
 29

Plastic and Reconstructive Surgery, Philippine Journal of Ophthalmology, Association of Philippine Ophthalmology
Professors, et al.

It must be remembered that when the qualifications of a physician are admitted, as in the instant case, there is an
inevitable presumption that in proper cases, he takes the necessary precaution and employs the best of his knowledge
and skill in attending to his clients, unless the contrary is sufficiently established.[98] In making the judgment call of
treating Peter's EKC with Maxitrol, Dr. Tuao took the necessary precaution by palpating Peter's eyes to monitor their IOP
every time the latter went for a check-up, and he employed the best of his knowledge and skill earned from years of
training and practice.

In contrast, without supporting expert medical opinions, petitioners' bare assertions of negligence on Dr. Tuao's part,
which resulted in Peter's glaucoma, deserve scant credit.

Our disposition of the present controversy might have been vastly different had petitioners presented a medical expert to
establish their theory respecting Dr. Tuao's so-called negligence. In fact, the record of the case reveals that petitioners'
counsel recognized the necessity of presenting such evidence. Petitioners even gave an undertaking to the RTC judge
that Dr. Agulto or Dr. Aquino would be presented. Alas, no follow-through on said undertaking was made.

The plaintiff in a civil case has the burden of proof as he alleges the affirmative of the issue. However, in the course of trial
in a civil case, once plaintiff makes out a prima facie case in his favor, the duty or the burden of evidence shifts to
defendant to controvert plaintiff's prima facie case; otherwise, a verdict must be returned in favor of plaintiff.[99] The party
having the burden of proof must establish his case by a preponderance of evidence.[100] The concept of "preponderance
of evidence" refers to evidence which is of greater weight or more convincing than that which is offered in opposition to
it;[101] in the last analysis, it means probability of truth. It is evidence which is more convincing to the court as worthy of
belief than that which is offered in opposition thereto.[102] Rule 133, Section 1 of the Revised Rules of Court provides the
guidelines for determining preponderance of evidence, thus:

In civil cases, the party having the burden of proof must establish his case by a preponderance of evidence. In
determining where the preponderance or superior weight of evidence on the issues involved lies the court may consider
all the facts and circumstances of the case, the witnesses' manner of testifying, their intelligence, their means and
opportunity of knowing the facts to which they are testifying, the nature of the facts to which they testify, the probability or
improbability of their testimony, their interest or want of interest, and also their personal credibility so far as the same
legitimately appear upon the trial. The court may also consider the number of witnesses, though the preponderance is not
necessarily with the greater number.

Herein, the burden of proof was clearly upon petitioners, as plaintiffs in the lower court, to establish their case by a
preponderance of evidence showing a reasonable connection between Dr. Tuao's alleged breach of duty and the
damage sustained by Peter's right eye. This, they did not do. In reality, petitioners' complaint for damages is merely
anchored on a statement in the literature of Maxitrol identifying the risks of its use, and the purported comment of Dr.
Agulto - another doctor not presented as witness before the RTC - concerning the prolonged use of Maxitrol for the
treatment of EKC.

It seems basic that what constitutes proper medical treatment is a medical question that should have been presented to
experts. If no standard is established through expert medical witnesses, then courts have no standard by which to gauge
the basic issue of breach thereof by the physician or surgeon. The RTC and Court of Appeals, and even this Court, could
not be expected to determine on its own what medical technique should have been utilized for a certain disease or injury.
Absent expert medical opinion, the courts would be dangerously engaging in speculations.

All told, we are hard pressed to find Dr. Tuao liable for any medical negligence or malpractice where there is no
evidence, in the nature of expert testimony, to establish that in treating Peter, Dr. Tuao failed to exercise reasonable
care, diligence and skill generally required in medical practice. Dr. Tuao's testimony, that his treatment of Peter
conformed in all respects to standard medical practice in this locality, stands unrefuted. Consequently, the RTC and the
Court of Appeals correctly held that they had no basis at all to rule that petitioners were deserving of the various damages
prayed for in their Complaint.

WHEREFORE, premises considered, the instant petition is DENIED for lack of merit. The assailed Decision dated 27
September 2006 and Resolution dated 3 July 2007, both of the Court of Appeals in CA-G.R. CV No. 68666, are hereby
AFFIRMED. No cost.

SO ORDERED.
30
 31

G.R. No. 150898, April 13, 2011

OCEAN BUILDERS CONSTRUCTION CORP., AND/OR DENNIS HAO, PETITIONERS, VS. SPOUSES
ANTONIO AND ANICIA CUBACUB, RESPONDENTS.

DECISION
CARPIO MORALES, J.:

Bladimir Cubacub (Bladimir) was employed as maintenance man by petitioner company Ocean Builders Construction
Corp. at its office in Caloocan City.

On April 9, 1995, Bladimir was afflicted with chicken pox. He was thus advised by petitioner Dennis Hao (Hao), the
companys general manager, to rest for three days which he did at the companys barracks where he lives free of
charge.

Three days later or on April 12, 1995, Bladimir went about his usual chores of manning the gate of the company premises
and even cleaned the company vehicles. Later in the afternoon, however, he asked a co-worker, Ignacio Silangga
(Silangga), to accompany him to his house in Capas, Tarlac so he could rest. Informed by Silangga of Bladimirs
intention, Hao gave Bladimir P1,000.00 and ordered Silangga to instead bring Bladimir to the nearest hospital.

Along with co-workers Narding and Tito Vergado, Silangga thus brought Bladimir to the Caybiga Community Hospital
(Caybiga Hospital), a primary-care hospital around one kilometer away from the office of the company.

The hospital did not allow Bladimir to leave the hospital. He was then confined, with Narding keeping watch over him.
The next day, April 13, 1995, a doctor of the hospital informed Narding that they needed to talk to Bladimirs parents,
hence, on Silanggas request, their co-workers June Matias and Joel Edrene fetched Bladimirs parents from Tarlac.

At about 8 oclock in the evening of the same day, April 13, 1995, Bladimirs parents-respondent spouses Cubacub, with
their friend Dr. Hermes Frias (Dr. Frias), arrived at the Caybiga Hospital and transferred Bladimir to the Quezon City
General Hospital (QCGH) where he was placed in the intensive care unit and died the following day, April 14, 1995.

The death certificate issued by the QCGH recorded Bladimirs immediate cause of death as cardio-respiratory arrest and
the antecedent cause as pneumonia. On the other hand, the death certificate issued by Dr. Frias recorded the causes of
death as cardiac arrest, multiple organ system failure, septicemia and chicken pox.

Bladimirs parents-herein respondents later filed on August 17, 1995 before the Tarlac Regional Trial Court (RTC) at
Capas a complaint for damages against petitioners, alleging that Hao was guilty of negligence which resulted in the
deterioration of Bladimirs condition leading to his death.

By Decision of April 14, 1997, [1] Branch 66 of the Tarlac RTC at Capas dismissed the complaint, holding that Hao was
not negligent. It ruled that Hao was not under any obligation to bring Bladimir to better tertiary hospitals, and assuming
that Bladimir died of chicken pox aggravated by pneumonia or some other complications due to lack of adequate facilities
at the hospital, the same cannot be attributed to Hao.

On respondents appeal, the Court of Appeals, by Decision of June 22, 2001, reversed the trial courts decision, holding
that by Haos failure to bring Bladimir to a better-equipped hospital, he violated Article 161 of the Labor Code. It went on
to state that Hao should have foreseen that Bladimir, an adult, could suffer complications from chicken pox and, had he
been brought to hospitals like St. Lukes, Capitol Medical Center, Philippine General Hospital and the like, Bladimir could
have been saved.

Thus the appellate court disposed:

WHEREFORE, the decision of the Regional Trial Court of Capas, Tarlac, Branch 66 in Civil Case No. 349 dated April 14,
1997 is hereby REVERSED and SET ASIDE and a new one rendered holding the defendants solidarily liable to plaintiffs-
appellants for the following:

P50,000.00 for the life of Bladimir Cubacub;

 32

P584,630.00 for loss of Bladimirs earning capacity;

P4,834.60 as reimbursement of expenses incurred at Quezon City General Hospital as evidenced by Exhibits E to E-
14 inclusive;

P18,107.75 as reimbursement of expenses for the 5-day wake covered by Exhibits F to F-17;

P30,000.00 as funeral expenses at Prudential Funeral Homes covered by Exhibit I;

P6,700.00 for acquisition of memorial lot at Sto. Rosario Memorial Park covered by Exhibit J;

P50,000.00 as moral damages;

P20,000.00 as exemplary damages;

P15,000.00 as attorneys fees and

Cost of suit.

SO ORDERED.[2]

The motion for reconsideration was denied by Resolution[3] of November 26, 2001, hence this petition.

Petitioners maintain that Hao exercised the diligence more than what the law requires, hence, they are not liable for
damages.

The petition is meritorious.

At the onset, the Court notes that the present case is one for damages based on torts, the employer-employee
relationship being merely incidental. To successfully prosecute an action anchored on torts, three elements must be
present, viz: (1) duty (2) breach (3) injury and proximate causation. The assailed decision of the appellate court held that
it was the duty of petitioners to provide adequate medical assistance to the employees under Art. 161 of the Labor Code,
failing which a breach is committed.

Art. 161 of the Labor Code provides:

ART. 161. Assistance of employer. It shall be the duty of any employer to provide all the necessary assistance to
ensure the adequate and immediate medical and dental attendance and treatment to an injured or sick employee in case
of emergency. (emphasis and underscoring supplied)

The Implementing Rules of the Code do not enlighten what the phrase adequate and immediate medical attendance
means in relation to an emergency. It would thus appear that the determination of what it means is left to the employer,
except when a full-time registered nurse or physician are available on-site as required, also under the Labor Code,
specifically Art. 157 which provides:

Article 157. Emergency Medical and Dental Services. - It shall be the duty of every employer to furnish his employees in
any locality with free medical and dental attendance and facilities consisting of:
 33

(a) The services of a full-time registered nurse when the number of employees exceeds fifty (50) but not more than two
hundred (200) except when the employer does not maintain hazardous workplaces, in which case, the services of a
graduate first-aider shall be provided for the protection of workers, where no registered nurse is available. The Secretary
of Labor and Employment shall provide by appropriate regulations, the services that shall be required where the number
of employees does not exceed fifty (50) and shall determine by appropriate order, hazardous workplaces for purposes of
this Article;

(b) The services of a full-time registered nurse, a part-time physician and dentist, and an emergency clinic, when the
number of employees exceeds two hundred (200) but not more than three hundred (300); and

(c) The services of a full-time physician, dentist and a full-time registered nurse as well as a dental clinic and an infirmary
or emergency hospital with one bed capacity for every one hundred (100) employees when the number of employees
exceeds three hundred (300). (emphasis and underscoring supplied)

In the present case, there is no allegation that the company premises are hazardous. Neither is there any allegation on
the number of employees the company has. If Haos testimony[4] would be believed, the company had only seven
regular employees and 20 contractual employees - still short of the minimum 50 workers that an establishment must have
for it to be required to have a full-time registered nurse.

The Court can thus only determine whether the actions taken by petitioners when Bladimir became ill amounted to the
necessary assistance to ensure adequate and immediate medical . . . attendance to Bladimir as required under Art.
161 of the Labor Code.

As found by the trial court and borne by the records, petitioner Haos advice for Bladimir to, as he did, take a 3-day rest
and to later have him brought to the nearest hospital constituted adequate and immediate medical attendance that he is
mandated, under Art. 161, to provide to a sick employee in an emergency.

Chicken pox is self-limiting. Hao does not appear to have a medical background. He may not be thus expected to have
known that Bladimir needed to be brought to a hospital with better facilities than the Caybiga Hospital, contrary to
appellate courts ruling.

AT ALL EVENTS, the alleged negligence of Hao cannot be considered as the proximate cause of the death of Bladimir.
Proximate cause is that which, in natural and continuous sequence, unbroken by an efficient intervening cause, produces
injury, and without which, the result would not have occurred.[5] An injury or damage is proximately caused by an act or
failure to act, whenever it appears from the evidence in the case that the act or omission played a substantial part in
bringing about or actually causing the injury or damage, and that the injury or damage was either a direct result or a
reasonably probable consequence of the act or omission.[6]

Verily, the issue in this case is essentially factual in nature. The dissent, apart from adopting the appellate courts
findings, finds that Bladimir contracted chicken pox from a co-worker and Hao was negligent in not bringing that co-worker
to the nearest physician, or isolating him as well. This finding is not, however, borne by the records. Nowhere in the
appellate courts or even the trial courts decision is there any such definite finding that Bladimir contracted chicken pox
from a co-worker. At best, the only allusion to another employee being afflicted with chicken pox was when Hao testified
that he knew it to heal within three days as was the case of another worker, without reference, however, as to when it
happened.[7]

On the issue of which of the two death certificates is more credible, the dissent, noting that Dr. Frias attended to Bladimir
during his last illness, holds that the certificate which he issued - citing chicken pox as antecedent cause - deserves
more credence.

There appears, however, to be no conflict in the two death certificates on the immediate cause of Bladimirs death since
both cite cardio-respiratory arrest due to complications - from pneumonia per QCGH, septicemia and chicken pox per Dr.
Frias. In fact, Dr. Frias admitted that the causes of death in both certificates were the same.[8]

Be that as it may, Dr. Frias could not be considered as Bladimirs attending physician, he having merely ordered
Bladimirs transfer to the QCGH after seeing him at the Caybiga Hospital. He thereafter left Bladimir to the care of doctors
at QCGH, returning to Capas, Tarlac at 4 oclock the following morning or eight hours after seeing Bladimir. As he himself
testified upon cross-examination, he did not personally attend to Bladimir anymore once the latter was brought to the ICU
at QCGH.[9]
 34

It bears emphasis that a duly-registered death certificate is considered a public document and the entries therein are
presumed correct, unless the party who contests its accuracy can produce positive evidence establishing otherwise.[10]
The QCGH death certificate was received by the City Civil Registrar on April 17, 1995. Not only was the certificate
shown by positive evidence to be inaccurate. Its credibility, more than that issued by Dr. Frias, becomes more
pronounced as note is taken of the fact that he was not around at the time of death.

IN FINE, petitioner company and its co-petitioner manager Dennis Hao are not guilty of negligence.

WHEREFORE, the petition is GRANTED. The challenged Decision of the Court of Appeals is REVERSED, and the
complaint is hereby DISMISSED.

WE CONCUR:

Brion, Villarama, Jr., and Sereno, JJ., concur.

Bersamin, J., I dissent.

--------------------------------------------------------------------------------
[1] Rollo, pp. 55-67.

[2] Court of Appeals Decision, rollo, pp. 81-82. Penned by Associate Justice (now SC Justice) Presbitero J. Velasco, Jr.
and concurred in by Associate Justices Bienvenido L. Reyes and Juan Q. Enriquez, Jr.

[3] Rollo, pp. 105-106. Penned by Associate Justice Bienvenido L. Reyes and concurred in by Associate Justice Rodrigo
V. Cosico and Juan Q. Enriquez, Jr.

[4] Vide TSN, Hearing on January 7, 1997, p. 8.

[5] Lasam v. Sps. Ramolete, G.R. No. 159132, Dec. 18, 2008, 574 SCRA 439.

[6] Ibid.

[7] Vide TSN, Hearing on January 7, 1997, p. 25.

[8] Vide TSN, Hearing on June 25, 1996, Direct Examination of Dr. Frias, records, p. 30.

[9] Vide, TSN, Hearing on June 25, 1996, id. at 35.

[10] Philamlife v. CA, 398 Phil. 599 (2000).

--------------------------------------------------------------------------------

DISSENTING OPINION

BERSAMIN, J.:

I dissent.

I find myself unable to join my Honorable Brethren in the Third Division in the result to be reached herein. My review of the
records constrains me to travel the lonely path, convinced to now forsake unanimity in order to urge giving just solace to
the aggrieved parents of a poor employee who died from the complications of chicken pox after his employers forced him
to continue on the job despite his affliction that, in the first place, he had contracted in the workplace from a co-employee.
To me, his death was wrongful by reason of the employers failure: (a) to isolate the co-worker to prevent the spread of
 35

chicken pox; (b) to provide to him the legally mandated first aid treatment; and (c) to extend adequate medical and other
assistance for his affliction with chicken pox and the expected complications of the affliction (like letting him off from work
in order to have complete rest).

Antecedents

This action concerns the damages claimed by the respondents, plaintiffs below, arising from the untimely death of their
son, Bladimir Cubacub, while employed by Ocean Builders Construction Corporation (OBCC), then managed by petitioner
Dennis Hao. Bladimir had contracted chicken pox and a cough and had later on collapsed in the workplace and rushed to
the hospital. In its decision dated April 14, 1997, the RTC absolved the petitioners of any liability, and dismissed the
complaint and the counterclaim, ruling that the proximate cause of Bladimirs death could not be attributed to the
petitioners, particularly because the death certificate issued by the Quezon City General Hospital (QCGH) did not state
chicken pox to be the cause of death, unlike the death certificate issued by Dr. Hermes Frias. The RTC observed that
Bladimir, being already of age, had been responsible for his own act of reporting to work despite his illness; that chicken
pox was not a serious disease requiring hospitalization, but a self-limiting one that would heal by itself if proper care of the
patient was taken; and that the petitioners as employers were not mandated by any law to send Bladimir to a hospital.

The respondents appealed to the Court of Appeals (CA), which reversed the RTC. The CA held that the respondents
established the petitioners liability by preponderant evidence, and, accordingly, found that Bladimirs health had
deteriorated because he had been made to work despite his illness and because Hao, as the manager of OBCC, had
denied Bladimirs request to take a vacation; that prior to his collapse, Bladimir had been suffering from the complications
of chicken pox and had needed immediate medical treatment; and that the petitioners did not extend the requisite
assistance to Bladimir despite their employers duty under Article 161 of the Labor Code to provide medical attention and
treatment to an injured or sick employee in times of emergency.

The CA then disposed thuswise:

WHEREFORE, the decision of the Regional Trial Court of Capas, Tarlac, Branch 66 in Civil Case No. 349 dated dated
April 14, 1997 is hereby REVERSED and SET ASIDE and a new one rendered holding the defendants solidarily liable to
plaintiffs-appellants for the following:

P50,000.00 for the life of Bladimir Cubacub;

P584,630.00 for loss of Bladimir's earning capacity;

P4,834.60 as reimbursement of expenses incurred at Quezon City General Hospital as evidenced by Exhibit E to E-14
inclusive;

P18,107.75 as reimbursement of expenses for the 5-day wake covered by Exhibits F to F-17;

P30,000.00 as funeral expenses at Prudential Funeral Homes covered by Exhibit I;

P6,700.00 for acquisition of memorial lot at Sto. Rosario Memorial Park covered by Exhibit J;

P50,000.00 as moral damages;

P20,000.00 as exemplary damages;

 36

P15,000.00 as attorney's fees; and

Cost of suit.

SO ORDERED. [1]

The petitioners sought reconsideration, but the CA rebuffed them.

Hence, this appeal, wherein the petitioners contend that the CA erred in concluding that they had not exercised the
diligence of a good father of a family and in giving weight to the death certificate issued by Dr. Frias.

Submission

The appeal has no merit.

1.
CA must be upheld on its resolution because
the appeal involves essentially factual issues

The petitioners, conscious that they hereby raise issues essentially factual in nature, submit that their appeal should be
given due course as an exception pursuant to Fuentes v. Court of Appeals (G.R. No. 109849, February 26, 1997, 268
SCRA 703) because the factual findings of the CA conflicted with those of the RTC.

I am not persuaded that we should give due course to the appeal on that basis. The mere variance between the factual
findings of the trial and appellate courts does not necessarily indicate that the CAs ruling was erroneous, or less worthy
than the RTCs. The petitioners burden was to present strong cogent reasons to convince the Court to reverse the CA,
but their reasons were weak and contrary to the records. The CA, acting as the reviewing court vis--vis the RTC,
reasonably considered and appreciated the records of the trial; hence, its appreciation and determination of the factual
and legal issues are entitled to great respect. Thus, the CAs ruling should be affirmed, not reversed.

2.
Petitioners were guilty for
the wrongful death of Bladimir

The respondents have anchored their action for damages on the provisions of the Civil Code on quasi-delict and human
relations.

Under the concept of quasi-delict, whoever by act or omission causes damage to another, there being fault or negligence,
is obliged to pay for the damage done. [2] To sustain a claim based on quasi-delict, the following requisites must concur:
(a) there must be damage caused to the plaintiff; (b) there must be negligence by act or omission, of which the defendant
or some other person for whose acts the defendant must respond was guilty; and (c) there must be a connection of cause
and effect between such negligence and the damage. [3]

Negligence, according to Layugan v. Intermediate Appellate Court, [4] is the omission to do something which a
reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or the
doing of something which a prudent and reasonable man would not do, [5] or as Judge Cooley defines it, [6] (t)he failure
to observe for the protection of the interests of another person, that degree of care, precaution, and vigilance which the
circumstances justly demand, whereby such other person suffers injury. [7]

The test for the existence of negligence in a particular case has been aptly put in Picart v. Smith, [8] thuswise:
 37

The test by which to determine the existence of negligence in a particular case may be stated as follows: Did the
defendant in doing the alleged negligent act use that reasonable care and caution which an ordinarily prudent person
would have used in the same situation? If not, then he is guilty of negligence. The law here in effect adopts the standard
supposed to be supplied by the imaginary conduct of the discreet paterfamilias of the Roman law. The existence of
negligence in a given case is not determined by reference to the personal judgment of the actor in the situation before
him. The law considers what would be reckless, blameworthy, or negligent in the man of ordinary intelligence and
prudence and determines liability by that.

The question as to what would constitute the conduct of a prudent man in a given situation must of course be always
determined in the light of human experience and in view of the facts involved in the particular case. Abstract speculation
cannot here be of much value but this much can be profitably said: Reasonable men govern their conduct by the
circumstances which are before them or known to them. They are not, and are not supposed to be, omniscient of the
future. Hence they can be expected to take care only when there is something before them to suggest or warn of danger.
Could a prudent man, in the case under consideration, foresee harm as a result of the course actually pursued? If so, it
was the duty of the actor to take precautions to guard against that harm. Reasonable foresight of harm, followed by the
ignoring of the suggestion born of this prevision, is always necessary before negligence can be held to exist. Stated in
these terms, the proper criterion for determining the existence of negligence in a given case is this: Conduct is said to be
negligent when a prudent man in the position of the tortfeasor would have foreseen that an effect harmful to another was
sufficiently probable to warrant his foregoing the conduct or guarding against its consequences. [9]

Negligence is a relative term, not an absolute one, because its application depends upon the situation of the parties and
the reasonable degree of care and vigilance that the surrounding circumstances reasonably impose. Consequently, when
the danger is great, a high degree of care is required, and the failure to observe such degree of care amounts to want of
ordinary care. [10]

The essential linkage between the negligence or fault, on one hand, and the injury or damage, on the other hand, must be
credibly and sufficiently established. An injury or damage is proximately caused by an act or a failure to act whenever it
appears from the evidence that the act or omission played a substantial part in bringing about or actually causing the
injury or damage; and that the injury or damage was either a direct result or a reasonably probable consequence of the
act or omission. [11]

According to the petitioners, the following acts of Hao proved that they were not negligent, namely: (a) it was at Haos
instance that Bladimir was brought to the Caybiga Community Hospital; (b) before leaving for Hongkong, Hao instructed
Ignacio Silangga, another employee, to attend to the needs of Bladimir who had been admitted in the hospital; and (c)
Hao advised Bladimir to take a rest for three days.

The Majority hold that all that Article 161 of the Labor Code, [12] upon which, among others, the CA anchored its decision
against the petitioners, required of the petitioners as the employers of the ill Bladimir was to render necessary
assistance to ensure adequate and immediate medical attendance; that Haos advice to Bladimir to take a 3-day
rest, which he did, and to later have Bladimir brought to the nearest hospital constituted the adequate and immediate
medical attendance Article 161 mandated; and that given that chicken pox was self-limiting, Hao, who did not appear to
have a medical background, might not be expected to have known that Bladimir needed to be brought to a hospital with
better facilities than the Caybiga Hospital.

The Majority further hold that the alleged negligence of Hao could not be the proximate cause of the death of Bladimir,
because whatever he did or did not do played no substantial part in bring about or actually causing the injury or damage;
hence, the death of Bladimir was neither the direct result nor a reasonably probable consequence of Haos act or
omission; that there was nothing in the records to show that Bladimir had contracted the chicken pox from an afflicted co-
worker whom Hao negligently did not bring to the nearest physician, or did not isolate from his co-workers; that both lower
courts did not make any definite finding that Bladimir had contracted the chicken pox from a co-worker; and that the only
allusion to another employee being afflicted with chicken pox was made by Hao when he testified that he had known that
chicken pox would heal within three days as was the case of another worker, without reference, however, as to when it
happened. [13]

I cannot accept the Majoritys holding.

The Majoritys favoring the petitioners disregards the records, which convincingly demonstrated and preponderantly
established that Hao had failed to exercise the degree of care and vigilance required under the circumstances. Besides,
the aforestated acts of Hao, objectively considered, did not warrant the petitioners absolution from liability.
 38

Let me elucidate.

2.a.
Petitioners violated the requirements of
the Labor Code and its implementing rules

It is good to start by unhesitatingly indicating that the petitioners as employers committed violations of the minimum
standards of care that the law erected for the benefit of Bladimir and his co-workers.

The implementing rules of the Labor Code required OBCC to provide medical and dental services and facilities to its
employees. Specifically, under Section 4(a), Rule 1 of the Implementing Rules of Book IV, OBCC had the legal obligation
due to the number of its workers being at least 27 in number (that is, seven regular employees and 20 contractual ones,
according to Hao) to employ at least a graduate first-aider, who might be one of the workers in the workplace; such
graduate first-aider must be afforded immediate access to the first-aid medicines, equipment, and facilities. [14] The term
first-aider refers to a person who has been trained and duly certified as qualified to administer first aid by the Philippine
National Red Cross (PNRC) or any other organization accredited by the PNRC. [15] The term first-aid treatment means
adequate, immediate, and necessary medical attention or remedy given in case of injury or sudden illness suffered by a
worker during employment, irrespective of whether or not such an injury or illness is work-connected, before more
extensive medical or dental treatment can be secured; it does not include continued treatment or follow-up treatment for
any injury or illness. [16]

However, Hao admitted that OBCC did not have a clinic in the workplace, or a nurse or other competent person who
might assist an employee in an emergency, or that OBCC had any agreement with a nearby hospital to attend to a sick
employee. [17] The admitted failure to provide to the employees, in general, and to Bladimir, in particular, any of the
several free emergency medical and dental services and facilities the Labor Code and the implementing rules and
regulations of the Department of Labor and Employment required removed the foundation for absolving the petitioners
from liability.

Chicken pox, or varicella, is a highly contagious disease of childhood, caused by a large DNA virus and characterized by
a well-defined incubation period, and a vesicular rash that typically occurs in successive crops and most marked on the
trunk. In healthy children, the disease is usually mild with clinical symptoms limited to the skin; but in immunosuppressed
children and adults, life-threatening illness caused by deep visceral involvement is not uncommon. [18] Among the known
complications of varicella are: (a) secondary bacterial infection; (b) varicella pneumonia; (c) dissemination to other
viscera; (d) central nervous system complications; (e) coagulation complications; and (f) rare complications such as
varicella infection of the cornea, edema, Reyes syndrome, or myocarditis. [19]

Chicken pox is a self-limiting disease that heals by itself when properly taken care of by giving the patient sufficient time to
rest and administering symptomatic medications. Dr. Hermes Frias enlightened the trial court thereon:

COURT

Q: He contracted chicken pox?

A: Yes, your honor, which is a self limiting disease.

Q: What do you mean by that?

A: Meaning to say, your Honor, if it is properly taken care of, it will not reach to the point of seriously affecting the patient
and there is a certain period wherein the chicken pox will heal. [20]

ATTY. SANTILLAN

Q: That is you said if taken care of at the initial?

A: Yes, sir. [21]

xxx

COURT
 39

Q: Will you clarify. You said that the disease is self limiting disease.
A: Yes your honor.

Q: So more or less, even without any medicine or without any medical attendance if it is self limiting disease, it will heal
by itself, Isnt it?
A: Yes, your Honor, if you would let me clarify on that thing, your Honor. Chicken pox has no medicine, it is being treated
symptomatically. What I mean that it has no medicine. There are medicines that are being tested that claim to have anti-
viral activities but it cannot be positively claimed that there is a medicine solely for chicken pox. So chicken pox, you,
Honor, is being treated symptomatically. If the patient having chicken pox will have fever, he will be given anti-fever
medicine and if the patient have pneumonia due to chicken pox, that is when the appropriate antibiotics is given.

Q: If it is self limiting, doctor, can you not say you dont even have to confine him in the hospital?
A: Yes, your honor, but the patient should be confined in bed. [22]

Based on the foregoing testimony of Dr. Frias, it is imperative that the chicken pox-afflicted patient should be confined in
bed to rest during the initial stages of the disease; otherwise, the complications of chicken pox, which are deadly, may set
in.

Dr. Frias explained the probability of the complications of chicken pox affecting the patient, viz:

A: Among the complications of chicken pox especially in adults that contacted it is pneumonia, then another complication
is the brain, encephalitis, those are the complications, sir.

Q: In your medical opinion, doctor, when can these complications set in?

A: There is no specific time on when these complications set in; but if the patient is properly taken care of during his
illness having chicken pox, these complications usually do not set in. The book states that complications of pneumonia is
around, if I am not mistaken, 20% to 30% of patients contacting chicken pox.

Q: In your medical opinion also, doctor, if the patient who has chicken pox do(es) not rest and continue(s) working and
without medication, would your answer still be the same as to the time when these complications will set in?

A: Without proper rest and medication, your Honor, the chances of complication setting in is much higher than in a patient
who is fully rested and receiving symptomatic medications. [23]

With the records showing that OBCC did not have the graduate first aider or clinic in the workplace, Bladimir received no
first aid treatment from April 9, 1995 (when he contracted chicken pox) until April 12, 1995 (when he was rushed to the
community hospital after collapsing in the workplace). Also, Bladimir was not allowed to have bed rest, considering that
Hao instead required him to continue on the job despite his affliction, denying the latters request to be allowed to rest in
his parents home in Capas, Tarlac, all because Hao was due to leave for Hongkong for the Holy Week break and had no
one else to remain in the premises in his absence. Haos utter lack of concern and solicitude for the welfare of Bladimir
not only contravened the letter and spirit of the Labor Code but also manifested a callous disregard of Bladimirs
weakened condition.

It is not to be lost sight of, too, that, even assuming that Hao really told Bladimir to take a rest in the company barracks
upon his affliction with chicken pox on April 9, 1995, the petitioners should still answer for the wrongful death because the
barracks provided to Bladimir and others (free of charge, the Majority point out) were unsuitable for any employee afflicted
with chicken pox to have the requisite complete rest. The barracks consisted of a small, cramped, and guardhouse-like
structure constructed of wood and plywood that even raised the chances for chicken pox to spread. Under the
circumstances, the petitioners neglect of the welfare of Bladimir became all the more pronounced.

2.b.
Bladimir succumbed to complications of chicken pox
after petitioners refused to let him have complete rest
 40

There are two sides of whether or not Bladimir was afforded the sufficient time to rest. The first is Haos claim that
Bladimir took a three-day rest, more particularly, on April 9, 10 and 11, 1995. The second is the respondents insistence
that Hao still required Bladimir to remain on the job from April 9 to April 12, 1995 despite Bladimirs several requests to be
allowed to go to his parents home in Capas, Tarlac to have the much needed rest, because Hao was then set to travel to
Hongkong during the Holy Week break and desired Bladimir to man the premises in his absence.

The Majority adopts the first, despite Hao supporting his claim with only his mere say-so, but I incline towards the
respondents version, because of the objective confirmation of the version by two witnesses, who coincided in their
declarations that Bladimir was on the job on April 11, 1995 and April 12, 1995, contrary to Haos claim.

The first objective witness was Ariel Taruc, who was presented by the respondents. Taruc testified that he saw Bladimir
working, cleaning the company premises and vehicles, and manning the gate on April 11, 1995. Taruc stated, too, that
Bladimir, already looking weak and full of rashes in his body, wanted very much to go home to Capas, Tarlac to rest
during the Holy Week break but his manager (Hao) did not give him permission to do so. I excerpt Tarucs relevant
testimony, to wit:

Q: Now on April 11, 1995, what time did you and Mr. Cubacub talk?
A: 9:00 o'clock in the morning, sir.

Q: Can you tell this Honorable Court why you went there on April 11, 1995?
A: I wanted to invite him to go home because that was a Holy Week, sir.

COURT
Holy Tuesday, you did not work on that day?

WITNESS
We did not have work on that day ma'am.

COURT
Alright, proceed.

ATTY. S. SANTILLAN:

Q: In what particular place you met Bladimir Cubacub on April 11, 1995 at 9:00 o'clock in the morning?

WITNESS

A: At the guard house, sir.

Q: Guard house of what company if you know or what place?

A: Ocean Builders, sir.

Q: What was Bladimir doing there at the guard house when you arrived?
A: He was assigned in that guard house, sir.

Q: Can you tell this Honorable Court what you and Bladimir talked about during that meeting at 9:00 o'clock on April 11,
1995?
A: I also invited Bladimir to go home on Holy Thursday, however, he informed me that he could not go home because he
was not allowed by his manager to go home as his manager was going somewhere, sir.

Q: Now, can you tell this Honorable Court also if you know what was the physical condition of Bladimir at the time you
are talking to him?
A: At that time, sir, his face was full of chicken pox, sir, and he looks weak, sir.

Q: Now, was that the only subject of conversation between you and Bladimir Cubacub at the time you visited him?
A: I was inviting him to go home that week, however he did not want to go home, in fact he showed his chicken pox in his
stomach and he informed me that he will be going home when I come back for work, sir.

Q: Will you tell the Court, you describe what those bulutong looks like?
 41

A: Butil-butil with pus and his face, both arms and his stomach were full of chicken pox, and they look like boil (pigsa),
mam. [24]

The second objective witness was Ignacio Silangga, an employee of OBCC whom the petitioners presented on their side.
Like Taruc, Silangga saw Bladimir working on April 11, 1995 by cleaning the company premises and vehicles, and
opening and closing the gate of the premises, as the following except of his testimony bears out:

Q: On April 11?
A: On April 11, I saw him, sir.

Q: Also working in the premises?

A: He was cleaning the vehicle, sir.

Q: So aside from cleaning the premises, opening, closing the gate, you also see him cleaning the vehicles of the
corporation, is that what you mean?
A: Yes, sir, that is his duty or job.

COURT

Q: Cleaning the vehicle is his job?

A: Yes, maam. [25]

In addition, Silangga attested that Bladimir continued on the job on April 12, 1995, instead of resting. In fact, Silangga
recalled Bladimir requesting to bring him home to Tarlac (bring me to Tarlac) because he wanted his own brothers and
sisters to take care of him and to rest. The relevant excerpt of Silanggas testimony follows:

Q: Can you recall to us what date was that when you last saw him before you saw him at the hospital?
A: On April 12, 1995, sir, I came from Manila because I secured the Plate Number of Mr. Dennis Hao, sir.

Q: And, from Manila, where did you go?

A: Upon entering the gate of your company, Bladimir was there and he was the one who opened the gate for me, sir.

Q: And, when Bladimir opened the gate for you on April 12, 1995, was he in his ordinary self or usual ordinary self?
A: Yes, sir.

Q: Alright, so, after opening the gate of Ocean Builders, do you remember what happened next?
A: Bladimir Cubacub calls me Kuya, sir, and he told me, Kuya, can you bring me to Tarlac, sir.

Q: And, did Bladimir Cubacub tell you the reason why he wants to be brought to Tarlac?
A: He told me that he wants to take a rest, sir.

Q: And, did he also tell you the reason why he wanted to take a rest?
A: He did not tell me the reason, sir. He just told me that he wants to take a rest, so, his brothers and sisters could take
care of him, sir.

Q: Did he not also tell you the reason why he wants his brothers and sisters to take care of him?
A: What I know, he was suffering from chicken pox, sir. [26]

With the aforequoted testimonies definitely confirming that Bladimir worked until April 12, 1995 (at least) despite his
greatly weakened condition, I wonder how and why the RTC still held that Bladimir was solely responsible for the fatal
consequence of his affliction, and why the Majority agrees with the RTC and completely absolves the petitioners from
responsibility and liability.

2.c.
 42

Bladimir contracted chicken pox

from a co-employee

Citing the lack of any finding to that effect in the decisions of both lower courts, the Majority downplays the cause of
Bladimirs chicken pox and ignores that Bladimir contracted the chicken pox from a co-worker.

I cannot go along with the Majority. It will be odd if the Court refuses to rectify the omission of both lower courts in missing
out on such an important detail as the causation of the chicken pox and ignores the evidence to that effect. The silence of
the lower courts ought not to impede the rectification, for ours is the foremost duty, as the ultimate dispenser of justice and
fairness, to make judicial decisions speak the truth.

Thus, I excerpt from Haos testimony the portion that incontrovertibly shows that he well knew that Bladimir had
contracted his chicken pox from a co-worker, in order to show how Bladimir contracted the chicken pox from a co-worker,
viz:

Q: Personally, have you experience from chicken pox (sic), do you know whether it is something serious or what kind
disease?

A: Actually, before Bladimir Cubacub was afflicted with chicken pox from one of his co-employee who is also residing in
the barracks who was afflicted with chicken pox, that is why I saw that chicken pox could ill in about three (3) days, sir.
[27]

Clearly, it was Hao who himself confirmed that Bladimir had contracted his chicken pox from a co-worker.

2.d.
Haos acts after Bladimir collapsed
and was rushed to the hospital
were superficial, too little, and too late

It is true that Hao directed Silangga to bring Bladimir to the community hospital after he collapsed in the workplace, giving
P1,000.00 for Bladimirs medical bill. But Haos solicitude was superficial (if not feigned), too little, and too late.

Superficial (if not feigned), for, although Bladimir, as a stay-in employee of OBCC under Haos supervision, was Haos
responsibility, Hao had not earlier done anything to prevent Bladimir from contracting chicken pox by isolating Bladimir
from contact with the afflicted co-worker. Instead, Bladimir and the afflicted co-worker were forced to stay together in their
crowded barracks. In addition, Hao showed no further interest in seeing to the condition of Bladimir and in ascertaining
whether the community hospital to where Bladimir had been rushed upon Haos directive had the adequate facilities and
medical personnel to attend to Bladimir. Obviously, the community hospital was not adequate, because Bladimirs
condition deteriorated until he fell into coma on April 13, 1995, the day following his admission.

Too little, because P1,000.00 was a mere pittance when compared with OBCCs undeserved savings from not complying
with its legally mandated obligation to provide first aid treatment to its employees, and from not doing more after Bladimir
had been rushed to the community hospital by Silangga.

Too late, because by the time of rushing him to the community hospital Bladimir had already collapsed due to the
irreversible effects of the deadly complications of the 3-days old affliction.

2.e.
Conclusion

Unlike the Majority, I find a direct link between the petitioners acts and omissions and Bladimirs death. The chain of the
events from the time when Bladimir was exposed to the chicken pox afflicting his co-worker due to their staying together in
the cramped space of the workers barracks, to the time when Hao directed Silangga to rush the collapsed Bladimir to the
community hospital, and until Bladimir succumbed in QCGH indicated a natural and continuous sequence, unbroken by
 43

any efficient intervening cause, demonstrating how their gross neglect of their employees plight led to or caused the
wrongful death.

Contrary to the Majoritys conclusion, Hao willfully disregarded Bladimirs deteriorating condition and prevented him from
taking time off from his job to have the much needed complete rest. Haos attitude enabled the complications of chicken
pox, like pneumonia, to set in to complicate Bladimirs condition. Hao did not need to have a medical background to
realize Bladimirs worsening condition and the concomitant perils, for such condition was not concealed due to Bladimirs
body notoriously bearing the signs of his affliction and general debility. By the time Hao acted and had Bladimir brought to
the community hospital, the complications of the disease were already irreversible.

Undoubtedly, the petitioners did not use that reasonable care and caution that an ordinarily prudent person would have
used in the same situation.

3.
Dr. Frias death certificate was
more reliable on the cause of death

The Majority do not consider the later death certificate issued by Dr. Frias (which included chicken pox among the causes
of death) more reliable than the death certificate issued on April 17, 1995 by the QCGH (which did not include chicken pox
among the causes of death), mainly because Dr. Frias could not be considered as Bladimirs attending physician, he
having merely ordered Bladimirs transfer to the QCGH after seeing him at the Caybiga Community Hospital; and because
the QCGH death certificate was a public document whose entries are presumed correct unless their inaccuracy is first
shown by positive evidence.

I disagree with the Majority.

Although, concededly, any competent health professional can confirm that death has occurred, only a physician who
attended the patient during his last illness can execute a death certificate. Anent the task, the physician provides an
opinion on the cause of death and certifies to such cause of death, not to the fact of death. The physician is not required
to confirm that life is extinct; or to view the body of the deceased; or to report the fact that death has occurred. The death
certificate is not a medical document, but a civil one intended to serve various legal purposes.

Was Dr. Frias qualified to execute the second death certificate?

I answer in the affirmative.

I deem to be uncontroverted that Dr. Frias medically attended to Bladimir during his last illness, considering that Dr. Frias
was the physician who coordinated Bladimirs transfer to QCGH from the Caybiga Community Hospital based on his
professional assessment of the true medical condition of Bladimir and of the urgent need for the transfer to another
medical institution with better facilities.

In contrast, the physician who executed on April 17, 1995 the death certificate for Bladimir in QCGH did not attend to
Bladimir during his last illness. This fact is unquestionably borne out in the death certificate itself, in which the physician
ticked the box denominated as Question No. 20 in the form for the death certificate, thereby stating that he had not
attended to the deceased. [28]

Moreover, Dr. Frias testified that the QCGH death certificate was prepared principally to enable the transport of the
remains of Bladimir from Quezon City to Tarlac. Upon seeing the incompleteness of the QCGH death certificate on the
causes of death, however, Dr. Frias felt compelled to execute another death certificate, as the following excerpt of his
testimony reveals:

Q: The Court would like to be clarified, Dr. Frias. Who is authorized to issue a death certificate based on the rules and
regulations of the Department of Health?
A: Attending physicians, your Honor, and any doctor who saw the patient.

COURT
 44

Q: Could you reconcile why there are two (2) death certificates in this case, one issued by the hospital where the patient
died and one which you issued?
A: They can be reconciled your Honor...

Q: No, I'm not asking for reconciliation. I'm just asking why there are two death certificates?
A: Yes, it was given to him so that the patient can be transported while I made the other one to show how seriously ill the
patient was at the time of his death, anyway I initially saw the patient and I was with him all the way up to the time he was
transferred to the Quezon City General Hospital, your Honor.

Q: Did I hear you correctly when you said that you issued the certificate after you saw the death certificate issued by the
Quezon City General Hospital?
A: Yes, your Honor.

Q: The Court is asking why is there a need for another death certificate when in fact you said there was already a death
certificate that was already issued if it is for transporting the corpse?
A: I made one, your Honor. The answer is I made one so to show the real cause of death of the patient. I think in my
opinion, the death certificate of the Quezon City General Hospital is inadequate to show the real condition of the patient.
[29]

Based on the foregoing, therefore, that Dr. Frias had the basic competence to execute the second death certificate, and
that such death certificate was the more reliable on the causes of Bladimirs death should be beyond debate.

ACCORDINGLY, I vote to deny the petition for review on certiorari, and to affirm the decision rendered on June 22, 2001
by the Court of Appeals.
 45

G.R. No. 48006, July 08, 1942

FAUSTO BARREDO, PETITIONER, VS. SEVERINO GARCIA AND TIMOTEA ALMARIO, RESPONDENTS.

DECISION
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,t
there was a head-on collision between a taxi of the Malate Taxicab driven by Pedro Fontanilla and a carretela guided by
Pedro Dimapilis. 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 Mulate 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 pf the mishap, as he was
driving on the wrong side of the road, and at high Speed. As to Rarredo's responsibility, the Court of Appeals found:

"* * * It is admitted that defendant is Fontanilla's employer. There is no proof that he exercised the diligence of good
father of a family to prevent the damage. (See 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) violations
which appeared in the records of the Bureau of Public Works available to the 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 against Pedro Fontanilla, the person criminally liable, Barredo
cannot be held responsible in this case. The petitioner's brief states on page 10:

"* * * The Court of Appeals holds that the petitioner is being sued for bis 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 this case article 1903 of the Civil Code. Article 1903 of the Civil
Code in found in Chapter II, Title 16, Book IV of the Civil Code. This fact makes said article inapplicable to a civil liability
arising from a crime as in the case at bur 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 omissions not punishable by law.'"
The gist of the decision of tho 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, bis (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
this perplexing subject by renown jurists and we arc likewise guided by the decisions of this Court in previous cases as
well as by the solemn clarity of the considerations 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 a delict or crime. Upon
this principle, and on the wording: and spirit of article 1903 of the Civil Code, the primary and direct responsibility of
employers may be safely anchored.
 46

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

CIVIL COM

"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."

* * * * * * *

"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."

* * * * * * *

"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 person si 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 damagea 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 damagea 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 exercised all the diligence of a good father of a family to prevent the damage."

"ART. 1901. 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 perton 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 Coden does not include exemption from civil liability,
which shall be enforced subject to the following rules:

"First. In casts of subdivisions 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
 47

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 persons 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 proportinate amount for which each one shall be liable.

"When the respective shares can not be equitably determined, even approzimately, or when the liability also attaches to
the Government, or to the majority of the ihabitants 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 corporations 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 subsidiary liable for the restitution of goods taken by robbery or theft within their houses from guest
lodging therein, or for the payment of the value thereof, provided that such guests shall have notified in advance the
innerkeeper 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 reperesentative may have given them with respect to the care of
and vigilance over such goods. No liability shall attache in case of robbery with violence 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."

* * * * * * *

"ART. 365. Imprudence and negligence. Any person who, by reckless impurdence, 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 mayors in its minimum period shall be imposed."
It will thus be seen that while the terms of article 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 act causing does not destroy the distinction betweem the civil liability arising from a crime and
the responsibility for causi-delitos or culpa extra-contractual. The same negligent act causing damages may produce civil
liability arising from a crime under article 100 of the Revise Penal Code, or create an action for causi-delito or culpa extra-
contractual under articles 1902-1910 of the Civil Code.
 48

The individuality of cuasi-delito or culpa extra-contratual looms clears 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, say" "Tenudo es de fazer emienda, porque,
como quier que el non fizo a sabiendas el dao al otro, pero acaesci6 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 1902-1910. 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 aquliana or cuasi-delito under the Civil
Code are:

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

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

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, causi-delitos, include all acts in which "any kind 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 "Responsabilidad" in the "Enciclopedia Juridica Espaola" (Vol. XXVII, p. 414) says:

"El concepto juridico de la responsabilidad civil abarca d I versos aipoctoa y comprende a diferentes peraonas. Aai, exiatc
una responsabilidad civil pro-piamenle dicha, que en mngtin caso Neva aparejada responsabilidad criminal alguna, y otra
que ea con-sccuencia indeclinable dc la penal quo nace de todo delito o falta."

"The juridical concept of civil responsabilidad has various aspects and comprises different persons. Thus, there is a civil
responsabilidad, properly speaking, which in no case carries with it any criminal responsabilidad, and another which is a
necesary 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 Canta-brico 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 tas cosas asi, a proposito de la realidad pura y neta de los hechos, todavia menoa parece sostcnible que
exista cosa juzgada ace re a 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 severaa. La lesion causada por delito o falta en los derechoa
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 ae enmiendan los
quebrantos y menoscabos, el agraviado exeusa procurar el ya conseguido desagravio; pero esta eventual coincidencia
de los efectos, no borra la diversidad originaria de las accioncs civiles para pedir indemniiacion.

"Estas, para el caso actual (proscindiendo de culpas contractuales, que no vendrian a cuento y que tienen otro regimen),
dimanan, segun el articulo 1902 del Codigo Civil, de toda accion u omision, causante de daos o perjuicios, en que
intervenes 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
 49

Codigo Penal, atentos al espiritu y a los lines sociales y politicos del miamo, desenvuelven y ordenon la materia de
responsabilidades civiles nacida de delito, en terminos separados del regimen por ley comun de la culpa que se
denomina aquiliana, por alusion a precedontes legislatives del Corpus Juris. Seria internpestivo un paralelo entre
aquellas ordenaciones, y la de la obligacion de indemnizar a titulo de culpa civil; pero viene al caao y es necesaria una de
laa diferenciaciones que en el tal paralelo se notarial.

"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 servieio
de los cuales estan los delineuentes; 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 obilgacion que impone
el articulo anterior es exigible, no solo por los actos y omisiones propios, sino por los de aquellas personal 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 causes criminales con el caracter
subsidiario de su rcsponsabilidad civil por razon del delito, son demandadas y condenadaa directa y aisladamente,
cuando se trata de la obligacion, ante los tribunales civiles.

"Siendo como se ve, divecao 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, abatenido de asistir al juicio criminal la
Compaia del Ferrocarril Cantabrieo, que se reservo ejercitar sus aceiones, parece innegable que la de indemnitacion
por los daos y perjuicios que le irrogot 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 legit imomenle reservada para despues del proceso; peto al
dedararse que no existio delito, ni responsabilidad dimanada de delito, materia unica sobre que tenfan jurisdiccion
aquelloa juzgadores, se redobla el motivo para la obligation 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 be res judicata
with regard to the civil obligation for damages on account of the losses caused by the collision of the trains. The title upon
which the action for reparation is based cannot be confused with the civil responsibilities born of a crime, because there
exists in the latter, whatever each nature, a culpa surrounded with aggravating aspects which give rise to penal measures
that are more or less severe. The injury caused by a felony or misdemeanor upon civil rights requires restitutions,
reparations, or indemnifications which, like the penalty itself, affect public order; for this reason, they are ordinarily
entrusted to the office of the prosecuting attorney; and it is clear that if by this means the losses and damages are
repaired, the injured party no longer desires to seek another relief; but this coincidence of effects does not eliminate the
peculiar nature of civil actions to aak 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 auch 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, hearing 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 aa 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 distributing 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 rtemandable, not only for
personal acts and omissions, but a 130 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 subtidiary civil responsibility by reason of
the crime, are sued and sentenced directly and separatety with regard to the obligation, before the civil courts.
 50

"Seeing that the title of this obligation in 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 an the Companla del Ferrocarril Cantibrico 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 iudice 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-exiatence of the felony and the non-existence of the responsibility
arising from the crime, which was the sole subject matter upon which the Tribunal del Jurado had jurisdiction, there is
greater reason for the civil obligation ex lege, and it becomes clearer that the action for its enforcement remain intact and
is not res judicata."
Laurent, a jurist who has written a monumental work on the French Civil Code, on which the Spanish Civil Code is largely
based and whose provisions on cuasi-delito or culpa extra-contractual are similar to those of the Spanish Civil Code,
says, referring to article 1384 of the French Civil Code which corresponds to article 1903, Spanish Civil Code:

"The action can be brought directly against the person responsible (for another), without including the author of the act.
The action against the principal is accessory in the sense that it implies the existence of a prejudicial act committed by the
employee, hut it is not subsidiary in the sense that it can not be instituted till after the judgment against the author of the
art 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. 734-736.)
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 omisionca de aquellas person as por las
que se debe responder, ea 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 juaticia y a la maxima universal, segiin la que las faltas son
pomonales, 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 cuasi 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 (menorea de edad, incapacitados, dependientes, aprendices) causan un dao, la
ley presume que el padre, el tutor, el maestro, etc., han cometido una falta de negligeneia para prevenir o evitar el dao.
Esta falta es la que ta 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 reaponsabilidad 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 whom 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, in-capacitated persons, employees, apprentices) causes any damage, the
law preaumes 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 (or one's own art. 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 se 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 raznna Id responsabilidad. Esta responsabilidad, es directa o es aubsidiaria? En el orden penal, el Codigo de
esta clase distingue entre menorea 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 1303, ha de entendorse dirccta, por el tenor
del articulo que impone la responsabilidad precisamentc 'por loa actos de aquellas personas de quienes se deba
responder.'"
 51

"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 ia liable for the acts of those persons with whom there is a bond or tie
which givea riae 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 article, 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 Electrica 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, praying 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 codenar
a la Compaia Electrica Madrileia al pago del dao causarto con la muerte de Ramon Lafuente Izquierdo, desconoce el
valor y efectos jurldieos de la sentencia absolutoria dieteda en la causa criminal que ae siguio por el mismo hecho,
euando es lo cierto quo de este han conocido las dos jurisdicciones bajo diferentes aspectos, y como la de lo criminal
declaro 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 eate el unico fundaments del fallo absolutorio, el
concurso de la culpa o negligcncia no calificadas, fuente de obligaciones civilea segun el articulo 1902 del Codigo Civil, y
que alcanzan, segun el 1903, entre otras personas, a los Dircctores de establecimientos o empresas por los danos
causados por sus dependientes en determinadas condiciones, es manifiesto que la de lo civil, al conocer del mismo
hecho bajo este ultimo aspecto y al condenar a la Compania recurrent a la indemnizacion del dao causado por uno de
sus empleados, lejos de infringir los mencionados textos, en relacion con el articulo 116 de la Ley de Enjuiciamiento
Criminal, se ha atenido eatrictarnente a ellos, sin invadir atribuciones ajenas a su jurisdiccion propia, ni contrariar en lo
mas mlnimo 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 caae instituted on account of the aame 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 is its authority that the act in question did not constitute a felony becauae there was
no grave careleaaneaa or negligence, and this being the only basis of acquittal, it does not 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 jurisdiction 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
cause if by one of is employees, far from violating said legal proviaions, 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 contraflicting the decision in that cause."(Italics 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 hia
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 hia 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 negligencewhich he did not overcomeunder article 1903. Thus, there
 52

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 plaintiffs chose 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 correctional.

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

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

"Considerando que la senteneia diecutida reconoce, en virtud de los hechos que consigns con relacion a las pruebas del
pleito: 1., que las expediciones facturadas por la compaia ferroviaria a la consiftnacion del actor de las vasijas vacias
que en au demanda relacionan tenian como fin el que este las devolviera a sus remitentes con vinos y alcoholes; 2., que
llegadas a su destino tales mercancias no se quiaieron 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 do reclamarlas el
demandante le originaron daos y perjuicios en cantidad de bastante iniportnncin como expendedor al por mayor que era
de vinos y alcoholea por las ganancias que dejo de obtener al verae privado de servir los pedidos que se le hablan hecho
por los remitentes en los envases:

"Considerando que sobre eata base hay necesidad de estimar los euatro motivos que integran este recurso, porque la
demand a inicial del pleito a que se contrae no contiene accion que nazca del incumplimicnto del contrato de tranaporte,
toda vez que no se funda en el retraso de la llegada de las mereancias ni de ningun otro vinculo contractual entre las
partea contendientes, careciendo, por tanto, de aplicadon el articulo 371 del Codigo de Comercio, en que principalmente
descansa el fallo recurrido, sino que se limita a pedir la reparation dc los daos y perjuicios producidos en el patrimonio
del actor por la injustificada y dolose ncgativa del porteador a la entrega de laa mereancias a su nombre conaignadaa,
aegun 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 aquelloa por celaciones de
caracter economico y de jerarquia administrativa."

"Considering that the sentence in question recognizes, in virtue of the facts which it declarea, 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 wher. the
aaid merchandise reached their destination, their delivery to the consignee waa 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 waa unable to fill the orders sent to him by the consignors of the receptacles:

"Considering that upon this basis there ia need of upholding the four assignments of error, as the original complaint did
not contain any cause of action arising from non-fulfilment 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 itaelf to asking for
reparation for lossta 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 aa stated by the aentence, 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." (Italics 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
 53

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 oil 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 hia 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 preceding article is demandable, not only for personal acts and omissions,
but also for those of the persons for whom they should be responsible.

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

* * * * * * *

" '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.

* * * * * * *

" '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 hia 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 ot 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 bo
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.
 54

"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 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 out 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 10S3, '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 full within
the class of acts unpunished by the law, the consequences of which are regulated by articles 1902 and 1903 of the Civil
Code. The acta 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 dutiea are subject to articles 1101, 1103, and 1104 of the aame code. A typical
application of thia 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 employ-ment, 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 or 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; Thif Court in affirming the judgment, said in part:

"If it were true that the defendant, in coming from the southern part of Sol ana 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 Solan a 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 Solans Street northward, he should have adjuated 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 auch 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 thiil the automobile entered Solana Street from Eeal 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 individuality of a cuasi-delito or culpa aquiliana under the Civil Code has
been fully and clearly recognized, even with regard to a negligent act for which the wrongdoer could have been
prosecuted and convicted in a criminal case and for which, after such a 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 defendant J. V. House, when an automobile appeared from the opposite direction. The little girl, who
 55

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 court 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. ([1307], 7 Phil., 359), still rule. Article 1002 of the Civil Code
muat 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 he 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 arc 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 cither in 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 thut 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 arts 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
 56

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 1003, 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 hia servant." (Bahia vs. Litonjua and LeyneB
[1915], 30 Phil., 624; Cangco vs. Manila Hailroad 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 & truck of the City of Manila and a street car of tho 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 authorises 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 fulling under article 604 of the
Penal Code. The act of the motorman was not a wrongful or negligrnt act or omission not punishable by law. Accordingly,
the civil obligation connected un with the Penal Code and not with article 1993 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 net a case of civil negligence."

* * * * * * *

"Our deduction, therefore, is lhat 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 (he effect that article 1302 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 Fontanilia's criminal negligence. In other words, the case of City of Manila vs. Manila
Electric Co., supra, is predicated on an entirely different theory, which is the subsidiary liability of an employer arising from
a criminal act of his employee, whereas the foundation of the decision of the Court of Appeals in the present case is the
employer's primary liability under article 1903 of the Civil Code. We have already seen that this is a proper and
independent remedy.

Arambulo vs. Manila Electric Co. (55 Phil., 75), is another case invoked by the defendant. A motorman in the employ of
the Manila Electric Company had been convicted of homicide by simple negligence and sentenced, among other things,
 57

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 hud 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 io hold, (1) that the exemption from tivil liability established
in article 1903 of the Civil Code for nil who have acted with the diligence of n good futlier of a family, is not applicable to
tlie subsidiary civil liability provided in article 20 of the Penal Code."
The above case is also extraneous to the Aheory 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 due 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 employerin this case the defendant-petitioneris 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 negligenceeven 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 unvindkated 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 conveyances usually do
not have sufficient means with which to pay damages. Why, then, should the plaintiff be required in all cases to go
through this roundabout, unnecessary, and probably useless procedure? In construing the laws, courts have endeavored
to shorten and facilitate the pathways of right and justice.
 58

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 bu 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 culpo 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 petitoner.
 59

G. R. No. 12191, October 14, 1918

JOSE CANGCO, PLAINTIFF AND APPELLANT, VS. MANILA RAILROAD CO., DEFENDANT AND
APPELLEE.

DECISION
FISHER, J.:

At the time of the occurrence which gave rise to this litigation the plaintiff, Jose Cangco, was in the employment of the
Manila Railroad Company in the capacity of clerk, with a monthly wage of P25. He lived in the pueblo of San Mateo, in the
province of Rizal, which is located upon the line of the defendant railroad company; and in coming daily by train to the
company's office in the city of Manila where he worked, he used a pass, supplied by the company, which entitled him to
ride upon the company's trains free of charge. Upon the occasion in question, January 20, 1915, the plaintiff was returning
home by rail from his daily labors; and as the train drew up to the station in San Mateo the plaintiff arose from his seat in
the second class-car where he was riding and, making his exit through the door, took his position upon the steps of the
coach, seizing the upright guardrail with his right hand for support.
On the side of the train where passengers alight at the San Mateo station there is a cement platform which begins to rise
with a moderate gradient some distance away from the company's office and extends along in front of said office for a
distance sufficient to cover the length of several coaches. As the train slowed down another passenger, named Emilio
Zuiga, also an employee of the railroad company, got off the same car, alighting safely at the point where the platform
begins to rise from the level of the ground. When the train had proceeded a little farther the plaintiff Jose Cangco stepped
off also, but one or both of his feet came in conta'ct with a sack of watermelons with the result that his feet slipped from
under him and he fell violently on the platform. His body at once rolled from the platform and was drawn under the moving
car, where his right arm was badly crushed and lacerated. It appears that after the plaintiff alighted from the train the car
moved forward possibly six meters before it came to a full stop.

The accident occurred between 7 and 8 o'clock on a dark night, and as the railroad station was lighted dimly by a single
light located some distance away, objects on the platform where the accident occurred were difficult to discern, especially
to a person emerging from a lighted car.

The explanation of the presence of a sack of melons on the platform where the plaintiff alighted is found in the fact that it
was the customary season for harvesting these melons and a large lot had been brought to the station for shipment to the
market. They were contained in numerous tow sacks which had been piled on the platform in a row one upon another.
The testimony shows that this row of sacks was so placed that there was a space of only about two feet between the
sacks of melons and the edge of the platform; and it is clear that the fall of the plaintiff was due to the fact that his foot
alighted upon one of these melons at the moment he stepped upon the platform. His statement that he failed to see these
objects in the darkness is readily to be credited.

The plaintiff was drawn from under the car in an unconscious condition, and it appeared that the injuries which he had
received were very serious. He was therefore brought at once to a certain hospital in the city of Manila where an
examination was made and his arm was amputated. The result of this operation was unsatisfactory, and the plaintiff was
then carried to another hospital where a second operation was performed and the member was again amputated higher
up near the shoulder. It appears in evidence that the plaintiff expended the sum of P790.25 in the form of medical and
surgical fees and for other expenses in connection with the process of his curation.

Upon August 31, 1915, he instituted this proceeding in the Court of First Instance of the city of Manila to recover damages
of the defendant company, founding his action upon the negligence vof the servants and employees of the defendant in
placing the sacks of melons upon the platform and in leaving them so placed as to be a menace to the security of
passenger alighting from the company's trains. At the hearing in the Court of First Instance, his Honor, the trial judge,
found the facts substantially as above stated, and drew therefrom his conclusion to the effect that, although negligence
was attributable to the defendant by reason of the fact that the sacks of melons were so placed as to obstruct passengers
passing to and from the cars, nevertheless, the plaintiff himself had failed to use due caution in alighting from the coach
and was therefore precluded from recovering. Judgment was accordingly entered in favor of the defendant company, and
the plaintiff appealed.

It can not be doubted that the employees of the railroad company were guilty of negligence in piling these sacks on the
platform in the manner above stated; that their presence caused the plaintiff to fall as he alighted from the train; and that
they therefore constituted an effective legal cause of the injuries sustained by the plaintiff. It necessarily follows that the
defendant company is liable for the damage thereby occasioned unless recovery is barred by the plaintiff's own
contributory negligence. In resolving this problem it is necessary that each of these conceptions of liability, to-wit, the
 60

primary responsibility of the defendant company and the contributory negligence of the plaintiff should be separately
examined.

It is important to note that the foundation of the legal liability of the defendant is the contract of carriage, and that the
obligation to respond for the damage which plaintiff has suffered arises, if at all, from the breach of that contract by reason
of the failure of defendant to exercise due care in its performance. That is to say, its liability is direct and immediate,
differing essentially, in the legal viewpoint from that presumptive responsibility for the negligence of its servants, imposed
by article 1903 of the Civil Code, which can be rebutted by proof of the exercise of due care in their selection and
supervision. Article 1903 of the Civil Code is not applicable to obligations arising ex contractu, but only to extra-contractual
obligationsor to use the technical form of expression, that article relates only to culpa aquiliana and not to culpa
contractual.

Manresa (vol. 8, p. 67) in his commentaries upon articles 1103 and 1104 of the Civil Code, clearly points out this
distinction, which was also recognized by this Court in its decision in the case of Rakes vs. Atlantic, Gulf and Pacific Co.
(7 Phil. Rep., 359). In commenting upon article 1093 (vol. 8, p. 30) Manresa clearly points out the difference between
"culpa, substantive and independent, which of itself constitutes the source of an obligation between persons not formerly
connected by any legal tie" and culpa considered as an "accident in the performance of an obligation already existing * *
*."

In the Rakes case (supra) the decision of this court was made to rest squarely upon the proposition that article 1903 of the
Civil Code is not applicable to acts of negligence which constitute the breach of a contract.

Upon 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 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." (Rakes vs. Atlantic, Gulf and Pacific Co., 7 Phil. Rep., 359 at p. 365.)

This distinction is of the utmost importance. The liability, which, under the Spanish law, is, in certain cases imposed upon
employers with respect to damages occasioned by the negligence of their employees to persons to whom they are not
bound by contract, is not based, as in the English Common Law, upon the principle of respondeat superiorif it were, the
master would be liable in every case and unconditionallybut upon the principle announced in article 1902 of the Civil
Code, which imposes upon all persons who by their fault or negligence, do injury to another, the obligation of making good
the damage caused. One who places a powerful automobile in the hands of a servant whom he knows to be ignorant of
the method of managing such a vehicle, is himself guilty of an act of negligence which makes him liable for all the
consequences of his imprudence. The obligation to make good the damage arises at the very instant that the unskillful
servant, while acting within the scope of his employment, causes the injury. The liability of the master is personal and
direct. But, if the master has not been guilty of any negligence whatever in the selection and direction ofthe servant, he is
not liable for the acts of the latter, whether done within the scope of his employment or not, if the damage done by the
servant does not amount to a breach of the contract between the master and the person injured.

It is not accurate to say that proof of diligence and care in the selection and control of the servant relieves the master from
liability for the latter's actson the contrary, that proof shows that the responsibility has never existed. As Manresa says
(vol. 8, p. 68) the liability arising from extra-contractual culpa is always based upon a voluntary act or omission which,
without willful intent, but by mere negligence or inattention, has caused damage to another. A master who exercises all
possible care in the selection of his servant, taking into consideration the qualifications they should possess for the
discharge of the duties which it is his purpose to confide to them, and directs them with equal diligence, thereby performs
his duty to third persons to whom he is bound by no contractual ties, and he incurs no liability whatever if, by reason of the
negligence of his servants, even within the scope of their employment, such third persons suffer damage. True it is that
under article 1903 of the Civil Code the law creates a presumption that he has been negligent in the selection or direction
of his servant, but the presumption is rebuttable and yields to proof of due care and diligence in this respect.

The supreme court of Porto Rico, in interpreting identical provisions, as found in the Porto Rican Civil Code, has held that
these articles are applicable to cases of extra-contractual culpa exclusively. (Carmona vs. Cuesta, 20 Porto Rico Reports,
215.)

This distinction was again made patent by this Court in its decision in the case of Bahia vs. Litonjua and Leynes, (30 Phil.
Rep., 624), which was an action brought upon the theory of the extra-contractual liability of the defendant to respond for
 61

the damage caused by the carelessness of his employee while acting within the scope of his employment. The Court,
after citing the last paragraph of article 1903 of the Civil Code, 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 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."

The opinion there expressed by this Court, to the effect that in case of extra-contractual culpa based upon negligence, it is
necessary that there shall have been some fault attributable to the defendant personally, and that the last paragraph of
article 1903 merely establishes a rebuttable presumption, is in complete accord with the authoritative opinion of Manresa,
who says (vol. 12, p. 611) that the liability created by article 1903 is imposed by reason of the breach of the duties
inherent in the special relations of authority or superiority existing between the person called upon to repair the damage
and the one who, by his act or omission, was the cause of it.

On the other hand, the liability of masters and employers for the negligent acts or omissions of their servants or agents,
when such acts or omissions cause damages which amount to the breach of a contract, is not based upon a mere
presumption of the master's negligence in their selection or control, and proof of exercise of the utmost diligence and care
in this regard does not relieve the master of his liability for the breach of his contract.

Every legal obligation must of necessity be extra-contractual or contractual. Extra-contractual obligation has its source in
the breach or omission of those mutual duties which civilized society imposes upon its members, or which arise from
these relations, other than contractual, of certain members of society to others, generally embraced in the concept of
status. The legal rights of each member of society constitute the measure of the corresponding legal duties, mainly
negative in character, which the existence of those rights imposes upon all other members of society. The breach of these
general duties whether due to willful intent or to mere inattention, if productive of injury, gives rise to an obligation to
indemnify the injured party. The fundamental distinction between obligations of this character and those which arise from
contract, rests upon the fact that in cases of non-contractual obligation it is the wrongful or negligent act or omission itself
which creates the vinculum juris, whereas in contractual relations the vinculum exists independently of the breach of the
voluntary duty assumed by the parties when entering into the contractual relation.

With respect to extra-contractual obligation arising from negligence, whether of act or omission, it is competent for the
legislature to electand our Legislature has so elected to limit such liability to cases in which the person upon whom
such an obligation is imposed is morally culpable or, on the contrary, for reasons of public policy, to extend that liability,
without regard to the lack of moral culpability, so as to include responsibility for the negligence of those persons whose
acts or omissions are imputable, by a legal fiction, to others who are in a position to exercise an absolute or limited control
over them. The legislature which adopted our Civil Code has elected to limit extra-contractual liabilitywith certain well-
defined exceptions to cases in which moral culpability can be directly imputed to the persons to be charged. This moral
responsibility may consist in having failed to exercise due care in one's own acts, or in having failed to exercise due care
in the selection and control of one's agents or servants, or in the control of persons who, by reason of their status, occupy
a position of dependency with respect to the person made liable for their conduct.

The position of a natural or juridical person who has undertaken by contract to render service to another, is wholly
different from that to which article 1903 relates. When the source of the obligation upon which plaintiff's cause of action
depends is a negligent act or omission, the burden of proof rests upon plaintiff to prove the negligenceif he does not his
action fails. But when the facts averred show a contractual undertaking by defendant for the benefit of plaintiff, and it is
alleged that plaintiff has failed or refused to perform the contract, it is not necessary for plaintiff to specify in his pleadings
whether the breach of the contract is due to wilful fault or to negligence on the part of the defendant, or of his servants or
agents. Proof of the contract and of its nonperformance is sufficient prima facie to warrant a recovery.

"As a general rule * * * it is logical that in case of extra-contractual culpa, a suing creditor should assume the burden of
proof of its existence, as the only fact upon which his action is based; while on the contrary, in a case of negligence which
presupposes the existence of a contractual obligation, if the creditor shows that it exists and that it has been broken, it is
not necessary for him to prove the negligence." (Manresa, vol. 8, p. 71 [1907 ed., p. 76].)
 62

As it is not necessary for the plaintiff in an action for the breach of a contract to show that the breach was due to the
negligent conduct of defendant or of his servants, even though such be in fact the actual cause of the breach, it is obvious
that proof on the part of defendant that the negligence or omission of his servants or agents caused the breach of the
contract would not constitute a defense to the action. If the negligence of servants or agents could be invoked as a means
of discharging the liability arising from contract, the anomalous result would be that persons acting through the medium of
agents or servants in the performance of their contracts, would be in a better position than those acting in person. If one
delivers a valuable watch to a watchmaker who contracts to repair it, and the bailee, by a personal negligent act causes
its destruction, he is unquestionably liable. Would it be logical to free him from his liability for the breach of his contract,
which involves the duty to exercise due care in the preservation of the watch, if he shows that it was his servant whose
negligence caused the injury? If such a theory could be accepted, juridical persons would enjoy practically complete
immunity from damages arising from the breach of their contracts if caused by negligent acts of omission or commission
on the part of their servants, as such juridical persons can of necessity only act through agents or servants, and it would
no doubt be true in most instances that reasonable care had been taken in the selection and direction of such servants. If
one delivers securities to a banking corporation as collateral, and they are lost by reason of the negligence of some clerk
employed by the bank, would it be just and reasonable to permit the bank to relieve itself of liability for the breach of its
contract to return the collateral upon the payment of the debt by proving that due care had been exercised in the selection
and direction of the clerk?

This distinction between culpa aquiliana, as the source of an obligation, and culpa contractual as a mere incident to the
performance of a contract has frequently been recognized by the supreme court of Spain. (Sentencias of June 27, 1894;
November 20, 1896; and December 13, 1896.) In the decision of November 20, 1896, it appeared that plaintiff's action
arose ex contractu, but that defendant sought to avail himself of the provisions of article 1902 of the Civil Code as a
defense. The Spanish Supreme Court rejected defendant's contention, saying:

"These are not cases of injury caused, without any pre-existing obligation, by fault or negligence, such as those to which
article 1902 of the Civil Code relates, but of damages caused by the defendant's failure to carry out the undertakings
imposed by the contracts * * *."

A brief review of the earlier decision of this court involving the liability of employers for damage done by the negligent acts
of their servants will show that in no case has the court ever decided that the negligence of the defendant's servants [has]
been held to constitute a defense to an action for damages for breach of contract.

In the case of Johnson vs. David (5 Phil. Rep., 663), the court held that the owner of a carriage was not liable for the
damages caused by the negligence of his driver. In that case the court commented on the fact that no evidence had been
adduced in the trial court that the defendant had been negligent in the employment of the driver, or that he had any
knowledge of his lack of skill or carefulness.

In the case of Baer Senior & Co.'s Successors vs. Compaia Maritima (6 Phil. Rep., 215), the plaintiff sued the defendant
for damages caused by the loss of a barge belonging to plaintiff which was allowed to get adrift by the negligence of
defendant's servants in the course of the performance of a contract of towage. The court held, citing Manresa (vol. 8, pp.
29, 69) that if the "obligation of the defendant grew out of a contract made between it and the plaintiff * * * we do not think
that the provisions of articles 1902 and 1903 are applicable to the case."

In the case of Chapman vs. Underwood (27 Phil. Rep., 374), plaintiff sued the defendant to recover damages for personal
injuries caused by the negligence of defendant's chauffeur while driving defendant's automobile in which defendant was
riding at the time. The court found that the damages were caused by the negligence of the driver of the automobile, but
held that the master was not liable, although he was present at the time, saying:

"* * * 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 the driver to desist therefrom. * * * 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 the driver's acts his own."

In the case of Yamada vs. Manila Railroad Co. and Bachrach Garage & Taxicab Co. (33 Phil. Rep., 8), it is true that the
court rested its conclusion as to the liability of the defendant upon article 1903, although the facts disclosed that the injury
complained of by plaintiff constituted a breach of the duty to him arising out of the contract of transportation. The express
ground of the decision in this case was that article 1903, in dealing with the liability of a master for the negligent acts of his
servants "makes the distinction between private individuals and public enterprise;" that as to the latter the law creates a
rebuttable presumption of negligence in the selection or direction of the servants; and that in the particular case the
presumption of negligence had not been overcome.
 63

It is evident, therefore, that in its decision in the Yamada case, the court treated plaintiff's action as though founded in tort
rather than as based upon the breach of the contract of carriage, and an examination of the pleadings and of the briefs
shows that the questions of law were in fact discussed upon this theory. Viewed from the standpoint of the defendant the
practical result must have been the same in any event. The proof disclosed beyond doubt that the defendant's servant
was grossly negligent and that his negligence was the proximate cause of plaintiff's injury. It also affirmatively appeared
that defendant had been guilty of negligence in its failure to exercise proper discretion in the direction of the servant.
Defendant was, therefore, liable for the injury suffered by plaintiff, whether the breach of the duty were to be regarded as
constituting culpa aquilina or culpa contractual. As Manresa points out (vol. 8, pp. 29 and 69) whether negligence occurs
as an incident in the course of the performance of a contractual undertaking or is itself the source of an extra-contractual
obligation, its essential characteristics are identical. There is always an act or omission productive of damage due to
carelessness or inattention on the part of the defendant. Consequently, when the court holds that a defendant is liable in
damages for having failed to exercise due care, either directly, or in failing to exercise proper care in the selection and
direction of his servants, the practical result is identical in either case. Therefore, it follows that it is not to be inferred,
because the court held in the Yamada case that the defendant was liable for the damages negligently caused by its
servant to a person to whom it was bound by contract, and made reference to the fact that the defendant was negligent in
the selection and control of its servants, that in such a case the court would have held that it would have been a good
defense to the action, if presented squarely upon the theory of the breach of the contract, for defendant to have proved
that it did in fact exercise care in the selection and control of the servant.

The true explanation of such cases is to be found by directing the attention to the relative spheres of contractual and
extra-contractual obligations. The field of non-contractual obligation is much more broader than that of contractual
obligation, comprising, as it does, the whole extent of juridical human relations. These two fields, figuratively speaking,
concentric; that is to say, the mere fact that a person is bound to another by contract does not relieve him from extra-
contractual liability to such person. When such a contractual relation exists the obligor may break the contract under such
conditions that the same act which constitutes a breach of the contract would have constituted the source of an extra-
contractual obligation had no contract existed between the parties.

The contract of defendant to transport plaintiff carried with it, by implication, the duty to carry him in safety and to provide
safe means of entering and leaving its trains (Civil Code, article 1258). That duty, being contractual, was direct and
immediate, and its non-performance could not be excused by proof that the fault was morally imputable to defendant's
servants.

The railroad company's defense involves the assumption that even granting that the negligent conduct of its servants in
placing an obstruction upon the platform was a .breach of its contractual obligation to maintain safe means of approaching
and leaving its trains, the direct and proximate cause of the injury suffered by plaintiff was his own contributory negligence
in failing to wait until the train had come to a complete stop before alighting. Under the doctrine of comparative negligence
announced in the Rakes case (supra), if the accident was caused by plaintiff's own negligence, no liability is imposed
upon defendant, whereas if the accident was caused by defendant's negligence and plaintiff's negligence merely
contributed to his injury, the damages should be apportioned. It is, therefore, important to ascertain if defendant was in
fact guilty of negligence.

It may be admitted that had plaintiff waited until the train had come to a full stop before alighting, the particular injury
suffered by him could not have occurred. Defendant contends, and cites many authorities in support of the contention,
that it is negligence per se for a passenger to alight from a moving train. We are not disposed to subscribe to this doctrine
in its absolute form. We are of the opinion that this proposition is too broadly stated and is at variance with the experience
of every-day life. In this particular instance, that the train was barely moving when plaintiff alighted is shown conclusively
by the fact that it came to stop within six meters from the place where he stepped from it. Thousands of persons alight
from trains under these conditions every day of the year,) and sustain no injury where the company has kept its platform
free from dangerous obstructions. There is no reason to believe that plaintiff would have suffered any injury whatever in
alighting as he did had it not been for defendant's negligent failure to perform its duty to provide a safe alighting place.

We are of the opinion that the correct doctrine relating to this subject is that expressed in Thompson's work on Negligence
(vol. 3, sec. 3010) as follows:

"The test by which to determine whether the passenger has been guilty of negligence in attempting to alight from a
moving railway train, is that of ordinary or reasonable care. It is to be considered whether an ordinarily prudent person, of
the age, sex and condition of the passenger, would have acted as the passenger acted under the circumstances
disclosed by the evidence. This care has been defined to be, not the care which may or should be used by the prudent
 64

man generally, but the care which a man of ordinary prudence would use under similar circumstances, to avoid injury."
(Thompson, Commentaries on Negligence, vol. 3, sec. 3010.)

Or, if we prefer to adopt the mode of exposition used by this court in Picart vs. Smith (37 Phil. Rep., 809), we may say that
the test is this; Was there anything in the circumstances surrounding the plaintiff at the time he alighted from the train
which would have admonished a person of average prudence that to get off the train under the conditions then existing
was dangerous? If so, the plaintiff should have desisted from alighting; and his failure so to desist was contributory
negligence.

As the case now before us presents itself, the only fact from which a conclusion can be drawn to the effect that the plaintiff
was guilty of contributory negligence is that he stepped off the car without being able to discern clearly the condition of the
platform and while the train was yet slowly moving. In considering the situation thus presented, it should not be
overlooked that the plaintiff was, as we find, ignorant of the fact that the obstruction which was caused by the sacks of
melons piled on the platform existed; and as the defendant was bound by reason of its duty as a public carrier to afford to
its passengers facilities for safe egress from its trains, the plaintiff had a right to assume, in the absence of some
circumstance to warn him to the contrary, that the platform was clear. The place, as we have already stated, was dark, or
dimly lighted, and this also is proof of a failure upon the part of the defendant in the performance of a duty owing by it to
the plaintiff; for if it were by any possibility conceded that it had a right to pile these sacks in the path of alighting
passengers, the placing of them in that position gave rise to the duty to light the premises adequately so that their
presence would be revealed.

As pertinent to the question of contributory negligence on the part of the plaintiff in this case the following circumstances
are to be noted: The company's platform was constructed upon a level higher than that of the roadbed and the
surrounding ground. The distance from the steps of the car to the spot where the alighting passenger would place his feet
on the platform was thus reduced, thereby decreasing the risk incident to stepping off. The nature of the platform,
constructed as it was of cement material, also assured to the passenger a stable and even surface on which to alight.
Furthermore, the plaintiff was possessed of the vigor and agility of young manhood, and it was by no means so risky for
him to get off while the train was yet moving as the same act would have been in an aged or feeble person. In determining
the question of contributory negligence in performing such actthat is to say, whether the passenger acted prudently or
recklesslythe age, sex, and physical condition of the passenger are circumstances necessarily affecting the safety of
the passenger, and should be considered. Women, it has been observed, as a general rule, are less capable than men of
alighting with safety under such conditions, as the nature of their wearing apparel obstructs the free movement of the
limbs. Again, it may be noted that the place was perfectly familiar to the plaintiff, as it was his daily custom to get on and
off the train at this station. There could, therefore, be no uncertainty in his mind with regard either to the length of the step
which he was required to take or the character of the platform where he was alighting. Our conclusion is that the conduct
of the plaintiff in undertaking to alight while the train was yet slightly under way was not characterized by imprudence and
that therefore he was not guilty of contributory negligence.

The evidence shows that the plaintiff, at the time of the accident, was earning P25 a month as a copyist clerk, and that the
injuries he has suffered have permanently disabled him from continuing that employment. Defendant has not shown that
any other gainful occupation is open to plaintiff. His expectancy of life, according to the standard mortality tables, is
approximately thirty-three years. We are of the opinion that a fair compensation for the damage suffered by him for his
permanent disability is the sum of P2,500, and that he is also entitled to recover of defendant the additional sum of
P790.25 for medical attention, hospital services, and other incidental expenditures connected with the treatment of his
injuries.

The decision of the lower court is reversed, and judgment is hereby rendered plaintiff for the sum of P3,290.25, and for
the costs of both instances. So ordered.

Arellano, C. J., Torres, Street, and Avancea, JJ., concur.

Malcolm, J. , dissents with whom concurs Johnson, J.

 65

G.R. No. L-24803, May 26, 1977

PEDRO ELCANO AND PATRICIA ELCANO, IN THEIR CAPACITY AS ASCENDANTS OF AGAPITO
ELCANO, DECEASED, PLAINTIFFS-APPELLANTS, VS. REGINALD HILL, MINOR, AND MARVIN HILL,
AS FATHER AND NATURAL GUARDIAN OF SAID MINOR, DEFENDANTS-APPELLEES.

DECISION
BARREDO, J.:

Appeal from the order of the Court of First Instance of Quezon City dated January 29, 1965 in Civil Case No. Q-8102,
Pedro Elcano et al. vs. Reginald Hill et al. dismissing, upon motion to dismiss of defendants, the complaint of plaintiffs for
recovery of damages from defendant Reginald Hill, a minor, married at the time of the occurrence, and his father, the
defendant Marvin Hill, with whom he was living and getting subsistence, for the killing by Reginald of the son of the
plaintiffs, named Agapito Elcano, of which, when criminally prosecuted, the said accused was acquitted on the ground that
his act was not criminal, because of "lack of intent to kill, coupled with mistake."

Actually, the motion to dismiss based on the following grounds:

"1. The present action is not only against but a violation of section 1, Rule 107, which is now Rule 111, of the Revised
Rules of Court;
2. The action is barred by a prior judgment which is now final and or in res-adjudicata;
"3. The complaint had no cause of action against defendant Marvin Hill, because he was relieved as guardian of the other
defendant through emancipation by marriage."
(p. 23, Record [p. 4, Record on Appeal.])
was first denied by the trial court. It was only upon motion for reconsideration of the defendants of such denial, reiterating
the above grounds that the following order was issued:

"Considering the motion for reconsideration filed by the defendants on January 14, 1965 and after thoroughly examining
the arguments therein contained, the Court finds the same to be meritorious and well-founded.
"WHEREFORE, the Order of this Court on December 8, 1964 is hereby reconsidered by ordering the dismissal of the
above entitled case.
"SO ORDERED.
"Quezon City, Philippines, January 29, 1965. (p. 40, Record [p. 21, Record on Appeal.)
Hence, this appeal where plaintiffs-appellants, the spouses Elcano, are presenting for Our resolution the following
assignment of errors:

"THE LOWER COURT ERRED IN DISMISSING THE CASE BY UPHOLDING THE CLAIM OF DEFENDANTS THAT
I

"THE PRESENT ACTION IS NOT ONLY AGAINST BUT ALSO A VIOLATION OF SECTION 1, RULE 107, NOW RULE
111, OF THE REVISED RULES OF COURT, AND THAT SECTION 3(c) OF RULE 111, RULES OF COURT IS
INAPPLICABLE;

II

"THE ACTION IS BARRED BY A PRIOR JUDGMENT WHICH IS NOW FINAL OR RES-ADJUDICATA;

III

"THE PRINCIPLES OF QUASI-DELICTS, ARTICLES 2176 TO 2194 OF THE CIVIL CODE, ARE INAPPLICABLE IN THE
INSTANT CASE; and

IV

"THAT THE COMPLAINT STATES NO CAUSE OF ACTION AGAINST DEFENDANT MARVIN HILL BECAUSE HE WAS
RELIEVED AS GUARDIAN OF THE OTHER DEFENDANT THROUGH EMANCIPATION BY MARRIAGE." (page 4,
Record.)
 66

It appears that for the killing of the son, Agapito, of plaintiffs-appellants, defendant-appellee Reginald Hill was prosecuted
criminally in Criminal Case No. 5102 of the Court of First Instance of Quezon City. After due trial, he was acquitted on the
ground that his act was not criminal because of "lack of intent to kill, coupled with mistake." Parenthetically, none of the
parties has favored Us with a copy of the decision of acquittal, presumably because appellants do not dispute that such
indeed was the basis stated in the court's decision. And so, when appellants filed their complaint against appellees
Reginald and his father, Atty. Marvin Hill, on account of the death of their son, the appellees filed the motion to dismiss
above-referred to.

As We view the foregoing background of this case, the two decisive issues presented for Our resolution are:

<!--[if !supportLists]-->1. <!--[endif]-->Is the present civil action for damages barred by the acquittal of Reginald in the
criminal case wherein the action for civil liability was not reserved?

<!--[if !supportLists]-->2. <!--[endif]-->May Article 2180 (2nd and last paragraphs) of the Civil Code be applied against
Atty. Hill, notwithstanding undisputed fact that at the time of the occurrence complained of, Reginald, though a minor,
living with and getting subsistence from his father, was already legally married?

The first issue presents no more problem than the need a reiteration and further clarification of the dual character, criminal
and civil, of fault or negligence as a source of obligation which was firmly established in this jurisdiction in Barredo vs.
Garcia, 73 Phil. 607. In that case, this Court postulated, on the basis of a scholarly dissertation by Justice Bocobo on the
nature of culpa aquiliana in relation to culpa criminal or delito and mere culpa or fault, with pertinent citation of decisions of
the Supreme Court of Spain, the works of recognized civilians, and earlier jurisprudence of our own, that the same given
act can result in civil liability not only under the Penal Code but also under the Civil Code. Thus, the opinion holds:

"The above case is pertinent because it shows that the same act 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." (pp. 615-616, 73 Phil.)[1]
"It will be noticed that the defendant in the above case could have been prosecuted in a criminal case because his
negligence causing the death of the child was punishable by the Penal Code. Here is therefore a clear instance of the
same act of negligence being a proper subject-matter either of a criminal action with its consequent civil liability arising
from a crime or of an entirely separate and independent civil action for fault or negligence under article 1902 of the Civil
Code. Thus, in this jurisdiction, the separate individuality of a cuasi-delito or culpa aquiliana under the Civil Code has
been fully and clearly recognized, even with regard to a negligent act for which the wrongdoer could have been
prosecuted and convicted in a criminal case and for which, after such a conviction, he could have been sued for this civil
liability arising from his crime." (p. 617, 73 Phil.)[2]
"It is most significant that in the case just cited, this Court specifically applied article 1902 of the Civil Code. It is thus that
although J. V. House could have been criminally prosecuted for reckless or simple negligence and not only punished but
also made civilly liable because of his criminal negligence, nevertheless this Court awarded damages in an independent
civil action for fault or negligence under article 1902 of the Civil Code." (p. 618, 73 Phil.)[3]
"The legal provisions, authors, and cases already invoked should ordinarily be sufficient to dispose of this case. But
inasmuch as we are announcing doctrines that have been little understood in the past, it might not 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.
Contrary to an immediate impression one might get upon a reading of the foregoing excerpts from the opinion in Garcia -
that the concurrence of the Penal Code and the Civil Code therein referred to contemplate only acts of negligence and not
intentional voluntary acts - deeper reflection would reveal that the thrust of the pronouncements therein is not so limited,
but that in fact it actually extends to fault or culpa. This can be seen in the reference made therein to the Sentence of the
Supreme Court of Spain of February 14, 1919, supra, which involved a case of fraud or estafa, not a negligent act.
Indeed, Article 1093 of the Civil Code of Spain, in force here at the time of Garcia, provided textually that obligations
"which are derived from acts or omissions in which fault or negligence, not punishable by law, intervene shall be the
 67

subject of Chapter II, Title XV of this book (which refers to quasi-delicts.)" And it is precisely the underlined qualification,
"not punishable by law", that Justice Bocobo emphasized could lead to an undesirable construction or interpretation of the
letter of the law that "killeth, rather than the spirit that giveth life" hence, the ruling that "(W)e will not use the literal
meaning of the law to smother and render almost lifeless a principle of such ancient origin and such full-grown
development as culpa aquiliana or cuasi-delito, which is conserved and made enduring in articles 1902 to 1910 of the
Spanish Civil Code." And so, because Justice Bocobo was Chairman of the Code Commission that drafted the original
text of the new Civil Code, it is to be noted that the said Code, which was enacted after the Garcia doctrine, no longer
uses the term, "not punishable by law, " thereby making it clear that the concept of culpa aquiliana includes acts which are
criminal in character or in violation of the penal law, whether voluntary or negligent. Thus, the corresponding provision to
said Article 1093 in the new code, which is Article 1162, simply says, "Obligations derived from quasi-delicts shall be
governed by the provisions of Chapter 2, Title XVII of this Book, (on quasi-delicts) and by special laws." More precisely, a
new provision, Article 2177 of the new code provides:

"ART. 2177. Responsibility for fault or negligence under the preceding article is entirely separate and distinct from the
civil liability arising from negligence under the Penal Code. But the plaintiff cannot recover damages twice for the same
act or omission of the defendant."
According to the Code Commission: "The foregoing provision (Article 2177) 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 'cuasi-delito' has been sustained by decisions 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 giveth 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 Revised Penal
Code, and, in a sense, the Rules of Court, under Sections 2 and 3 (c), Rule 111, contemplate also the same separability,
it is "more congruent with the spirit of law, equity and justice, and more in harmony with modern progress", to borrow the
felicitous relevant language in Rakes vs. Atlantic, Gulf and Pacific Co., 7 Phil. 359, to hold, as We do hold, that Article
2176, where it refers to "fault or negligence," covers not only acts "not punishable by law" but also acts criminal in
character, whether intentional and voluntary or negligent. Consequently, a separate civil action lies against the offender in
a criminal act, whether or not he is criminally prosecuted and found guilty or acquitted, provided that the offended party is
not allowed, if he is actually charged also criminally, to recover damages on both scores, and would be entitled in such
eventuality only to the bigger award of the two, assuming the awards made in the two cases vary. In other words, the
extinction of civil liability referred to in Par. (e) of Section 3, Rule 111, refers exclusively to civil liability founded on Article
100 of the Revised Penal Code, whereas the civil liability for the same act considered as a quasi-delict only and not as a
crime is not extinguished even by a declaration in the criminal case that the criminal act charged has not happened or has
not been committed by the accused. Briefly stated, We here hold, in reiteration of Garcia, that culpa aquiliana includes
voluntary and negligent acts which may be punishable by law.[4]

It results, therefore, that the acquittal of Reginald Hill in the criminal case has not extinguished his liability for quasi-delict,
hence that acquittal is not a bar to the instant action against him.

Coming now to the second issue about the effect of Reginald's emancipation by marriage on the possible civil liability of
Atty. Hill, his father, it is also Our considered opinion that the conclusion of appellees that Atty. Hill is already free from
responsibility cannot be upheld.

While it is true that parental authority is terminated upon emancipation of the child (Article 327, Civil Code), and under
Article 397, emancipation takes place "by the marriage of the minor (child)", it is, however, also clear that pursuant to
Article 399, emancipation by marriage of the minor is not really full or absolute. Thus "(E)mancipation by marriage or by
voluntary concession shall terminate parental authority over the child's person. It shall enable the minor to administer his
property as though he were of age, but he cannot borrow money or alienate or encumber real property without the
consent of his father or mother, or guardian. He can sue and be sued in court only with the assistance of his father,
mother or guardian."
 68

Now, under Article 2180, "(T)he obligation imposed by article, 2176 is demandable not only for one's own acts or
omissions, but also for those of persons for whom one is responsible. The father and, in case of his death or incapacity,
the mother, are responsible for the damages caused by the minor children who live in their company." In the instant case,
it is not controverted that Reginald, although married, was living with his father and getting subsistence from him at the
time of the occurrence in question. Factually, therefore, Reginald was still subservient to and dependent on his father, a
situation which is not unusual.

It must be borne in mind that, according to Manresa, the reason behind the joint and solidary liability of parents with their
offending child under Article 2180 is that it is the obligation of the parent to supervise their minor children in order to
prevent them from causing damage to third persons.[5] On the other hand, the clear implication of Article 399, in providing
that a minor emancipated by marriage may not, nevertheless, sue or be sued without the assistance of the parents, is that
such emancipation does not carry with it freedom to enter into transactions or do any act that can give rise to judicial
litigation. (See Manresa, id., Vol. II, pp. 766-767, 776.) And surely, killing someone else invites judicial action. Otherwise
stated, the marriage of a minor child does not relieve the parents of the duty to see to it that the child, while still a minor,
does not give cause to any litigation, in the same manner that the parents are answerable for the borrowings of money
and alienation or encumbering of real property which cannot be done by their minor married child without their consent.
(Art. 399; Manresa, supra.)

Accordingly, in Our considered view, Article 2180 applies to Atty. Hill notwithstanding the emancipation by marriage of
Reginald. However, inasmuch as it is evident that Reginald is now of age, as a matter of equity, the liability of Atty. Hill
has become merely subsidiary to that of his son.

WHEREFORE, the order appealed from is reversed and the trial court is ordered to proceed in accordance with the
foregoing opinion. Costs against appellees.
 69

G.R. No. 74761, November 06, 1990

NATIVIDAD V. ANDAMO AND EMMANUEL R. ANDAMO, PETITIONERS, VS. INTERMEDIATE
APPELLATE COURT (FIRST CIVIL CASES DIVISION) AND MISSIONARIES OF OUR LADY OF LA
SALETTE, INC., RESPONDENTS.

DECISION
FERNAN, C.J.:

The pivotal issue in this petition for certiorari, prohibition and mandamus is whether a corporation, which has built through
its agents, waterpaths, water conductors and contrivances within its land, thereby causing inundation and damage to an
adjacent land, can be held civilly liable for damages under Articles 2176 and 2177 of the Civil Code on quasi-delicts such
that the resulting civil case can proceed independently of the criminal case.

The antecedent facts are as follows:

Petitioner spouses Emmanuel and Natividad Andamo are the owners of a parcel of land situated in Biga (Biluso) Silang,
Cavite which is adjacent to that of private respondent, Missionaries of Our Lady of La Salette, Inc., a religious corporation.

Within the land of respondent corporation, waterpaths and contrivances, including an artificial lake, were constructed,
which allegedly inundated and eroded petitioners' land, caused a young man to drown, damaged petitioners' crops and
plants, washed away costly fences, endangered the lives of petitioners and their laborers during rainy and stormy
seasons, and exposed plants and other improvements to destruction.

In July 1982, petitioners instituted a criminal action, docketed as Criminal Case No. TG-907-82, before the Regional Trial
Court of Cavite, Branch 4 (Tagaytay City), against Efren Musngi, Orlando Sapuay and Rutillo Mallillin, officers and
directors of herein respondent corporation, for destruction by means of inundation under Article 324 of the Revised Penal
Code.

Subsequently, on February 22, 1983, petitioners filed another action against respondent corporation, this time a civil case,
docketed as Civil Case No. TG-748, for damages with prayer for the issuance of a writ of preliminary injunction before the
same court.[1]

On March 11, 1983, respondent corporation filed its answer to the complaint and opposition to the issuance of a writ of
preliminary injunction. Hearings were conducted including ocular inspections on the land. However, on April 26, 1984,
the trial court, acting on respondent corporation's motion to dismiss or suspend the civil action, issued an order
suspending further hearings in Civil Case No. TG-748 until after judgment in the related Criminal Case No. TG-907-82.

Resolving respondent corporation's motion to dismiss filed on June 22, 1984, the trial court issued on August 27, 1984 the
disputed order dismissing Civil Case No. TG-748 for lack of jurisdiction, as the criminal case which was instituted ahead of
the civil case was still unresolved. Said order was anchored on the provision of Section 3 (a), Rule III of the Rules of
Court which provides that "criminal and civil actions arising from the same offense may be instituted separately, but after
the criminal action has been commenced the civil action cannot be instituted until final judgment has been rendered in the
criminal action."[2]

Petitioners appealed from that order to the Intermediate Appellate Court.[3]

On February 17, 1986, respondent Appellate Court, First Civil Cases Division, promulgated a decision,[4] affirming the
questioned order of the trial court.[5] A motion for reconsideration filed by petitioners was denied by the Appellate Court in
its resolution dated May 19, 1986.[6]

Directly at issue is the propriety of the dismissal of Civil Case No. TG-748 in accordance with Section 3 (a) of Rule 111 of
the Rules of Court. Petitioners contend that the trial court and the Appellate Court erred in dismissing Civil Case No. TG-
748 since it is predicated on a quasi-delict. Petitioners have raised a valid point.

It is axiomatic that the nature of an action filed in court is determined by the facts alleged in the complaint as constituting
the cause of action.[7] The purpose of an action or suit and the law to govern it, including the period of prescription, is to
be determined not by the claim of the party filing the action, made in his argument or brief, but rather by the complaint
itself, its allegations and prayer for relief.[8] The nature of an action is not necessarily determined or controlled by its title
 70

or heading but by the body of the pleading or complaint itself. To avoid possible denial of substantial justice due to legal
technicalities, pleadings as well as remedial laws should be liberally construed so that the litigants may have ample
opportunity to prove their respective claims.[9]

Quoted hereunder are the pertinent portions of petitioners' complaint in Civil Case No. TG-748:

4) That within defendant's land, likewise located at Biga (Biluso), Silang, Cavite, adjacent on the right side of the aforesaid
land of plaintiffs, defendant constructed waterpaths starting from the middle-right portion thereof leading to a big hole or
opening, also constructed by defendant, thru the lower portion of its concrete hollow- blocks fence situated on the right
side of its cemented gate fronting the provincial highway, and connected by defendant to a man-height inter-connected
cement culverts which were also con-structed and lain by defendant cross-wise beneath the tip of the said cemented gate,
the left-end of the said inter-connected culverts again connected by defendant to a big hole or opening thru the lower
portion of the same concrete hollow-blocks fence on the left side of the said cemented gate, which hole or opening is
likewise connected by defendant to the cemented mouth of a big canal, also constructed by defendant, which runs
northward towards a big hole or opening which was also built by defendant thru the lower portion of its concrete hollow-
blocks fence which separates the land of plaintiffs from that of defendant (and which serves as the exit-point of the
floodwater coming from the land of defendant, and at the same time, the entrance-point of the same floodwater to the land
of plaintiffs, year after year, during rainy or stormy seasons.
"5) That moreover, on the middle-left portion of its land just beside the land of plaintiffs, defendant also constructed an
artificial lake, the base of which is soil, which utilizes the water being channeled thereto from its water system thru inter-
connected galvanized iron pipes (No. 2) and complimented by rain water during rainy or stormy seasons, so much so that
the water below it seeps into, and the excess water above it inundates, portions of the adjoining land of plaintiffs.
"6) That as a result of the inundation brought about by defendant's aforementioned water conductors, contrivances and
manipulators, a young man was drowned to death, while herein plaintiffs suffered and will continue to suffer, as follows:
"a) Portions of the land of plaintiffs were eroded and converted to deep, wide and long canals, such that the same can no
longer be planted to any crop or plant.

"b) Costly fences constructed by plaintiffs were, on several occasions, washed away.

"c) During rainy and stormy seasons the lives of plaintiffs and their laborers are always in danger.

"d) Plants and other improvements on other portions of the land of plaintiffs are exposed to destruction. x x x."[10]

A careful examination of the aforequoted complaint shows that the civil action is one under Articles 2176 and 2177 of the
Civil Code on quasi-delicts. All the elements of a quasi-delict are present, to wit: (a) damages suffered by the plaintiff; (b)
fault or negligence of the defendant, or some other person for whose acts he must respond; and (c) the connection of
cause and effect between the fault or negligence of the defendant and the damages incurred by the plaintiff.[11]

Clearly, from petitioners' complaint, the waterpaths and contrivances built by respondent corporation are alleged to have
inundated the land of petitioners. There is therefore, an asser-tion of a causal connection between the acts of building
these waterpaths and the damage sustained by petitioners. Such action if proven constitutes fault or negligence which
may be the basis for the recovery of damages.

In the case of Samson vs. Dionisio,[12] the Court applied Article 1902, now Article 2176 of the Civil Code and held that
"any person who without due authority constructs a bank or dike, stopping the flow or communication between a creek or
a lake and a river, thereby causing loss and damages to a third party who, like the rest of the residents, is entitled to the
use and enjoyment of the stream or lake, shall be liable to the payment of an indemnity for loss and damages to the
injured party."

While the property involved in the cited case belonged to the public domain and the property subject of the instant case is
privately owned, the fact remains that petitioners' complaint sufficiently alleges that petitioners have sustained and will
continue to sustain damage due to the waterpaths and contrivances built by respondent corporation. Indeed, the recitals
of the complaint, the alleged presence of damage to the petitioners, the act or omission of respondent corporation
supposedly constituting fault or negligence, and the causal connection between the act and the damage, with no pre-
existing contractual obligation between the parties make a clear case of a quasi-delict or culpa aquiliana.

It must be stressed that the use of one's property is not without limitations. Article 431 of the Civil Code provides that "the
owner of a thing cannot make use thereof in such a manner as to injure the rights of a third person." SIC UTERE TUO UT
ALIENUM NON LAEDAS. Moreover, adjoining landowners have mutual and reciprocal duties which require that each
must use his own land in a reasonable manner so as not to infringe upon the rights and interests of others. Although we
 71

recognize the right of an owner to build structures on his land, such structures must be so constructed and maintained
using all reasonable care so that they cannot be dangerous to adjoining landowners and can withstand the usual and
expected forces of nature. If the structures cause injury or damage to an adjoining landowner or a third person, the latter
can claim indemnification for the injury or damage suffered.

Article 2176 of the Civil Code imposes a civil liability on a person for damage caused by his act or omission constituting
fault or negligence, thus:

"Article 2176. Whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay
for the damage done. Such fault or negligence, if there is no pre-existing contractual relation between the parties, is
called a quasi-delict and is governed by the provisions of this chapter."
Article 2176, whenever it refers to "fault or negligence", covers not only acts "not punishable by law" but also acts criminal
in character, whether intentional and voluntary or negligent. Consequently, a separate civil action lies against the offender
in a criminal act, whether or not he is criminally prosecuted and found guilty or acquitted, provided that the offended party
is not allowed, (if the tortfeasor is actually charged also criminally), to recover damages on both scores, and would be
entitled in such eventuality only to the bigger award of the two, assuming the awards made in the two cases vary.[13]

The distinctness of quasi-delicts is shown in Article 2177 of the Civil Code, which states:

"Article 2177. Responsibility for fault or negligence under the preceding article is entirely separate and distinct from the
civil liability arising from negligence under the Penal Code. But the plaintiff cannot recover damages twice for the same
act or omission of the defendant."

According to the Report of the Code Commission "the foregoing provision though at first sight startling, is not so novel or
extraordinary when we consider the exact nature of criminal and civil negligence. The former is a violation of the criminal
law, while the latter is a distinct and independent negligence, which is a "culpa aquiliana" or quasi-delict, of ancient origin,
having always had its own foundation and individuality, separate from criminal negligence. Such distinction between
criminal negligence and "culpa extra-contractual" or "cuasi-delito" has been sustained by decisions of the Supreme Court
of Spain xxx."[14]

In the case of Castillo vs. Court of Appeals,[15] this Court held that a quasi-delict or culpa aquiliana is a separate legal
institution under the Civil Code with a substantivity all its own, and individuality that is entirely apart and independent from
a delict or crime -- a distinction exists between the civil liability arising from a crime and the responsibility for quasi-delicts
or culpa extra-contractual. The same negligence causing damages may produce civil liability arising from crime under the
Penal Code, or create an action for quasi-delicts or culpa extra-contractual under the Civil Code. Therefore, the acquittal
or conviction in the criminal case is entirely irrelevant in the civil case, unless, of course, in the event of an acquittal where
the court has declared that the fact from which the civil action arose did not exist, in which case the extinction of the
criminal liability would carry with it the extinction of the civil liability.

In Azucena vs. Potenciano,[16] the Court declared that in quasi-delicts, "(t)he civil action is entirely independent of the
criminal case according to Articles 33 and 2177 of the Civil Code. There can be no logical conclusion than this, for to
subordinate the civil action contemplated in the said articles to the result of the criminal prosecution -- whether it be
conviction or acquittal -- would render meaningless the independent character of the civil action and the clear injunction in
Article 31, that his action may proceed independently of the criminal proceedings and regardless of the result of the latter."

WHEREFORE, the assailed decision dated February 17, 1986 of the then Intermediate Appellate Court affirming the order
of dismissal of the Regional Trial Court of Cavite, Branch 18 (Tagaytay City) dated August 17, 1984 is hereby
REVERSED and SET ASIDE. The trial court is ordered to reinstate Civil Case No. TG-748 entitled "Natividad V. Andamo
and Emmanuel R. Andamo vs. Missionaries of Our Lady of La Salette, Inc." and to proceed with the hearing of the case
with dispatch. This decision is immediately executory. Costs against respondent corporation.

So ordered.
 72

G.R. No. 97336, February 19, 1993

GASHEM SHOOKAT BAKSH, PETITIONER, VS. HON. COURT OF APPEALS AND MARILOU T.
GONZALES, RESPONDENTS.

DECISION
DAVIDE, JR., J.:

This is an appeal by certiorari under Rule 45 of the Rules of Court seeking to review and set aside the Decision[1] of the
respondent Court of Appeals in CA-G.R. CV No. 24256 which affirmed in toto the 16 October 1989 Decision of Branch 38
(Lingayen) of the Regional Trial Court (RTC) of Pangasinan in Civil Case No. 16503. Presented is the issue of whether or
not damages may be recovered for a breach of promise to marry on the basis of Article 21 of the Civil Code of the
Philippines.

The antecedents of this case are not complicated:

On 27 October 1987, private respondent, without the assistance of counsel, filed with the aforesaid trial court a
complaint[2] for damages against the petitioner for the alleged violation of their agreement to get married. She alleges in
said complaint that: she is twenty-two (22) years old, single, Filipino and a pretty lass of good moral character and
reputation duly respected in her community; petitioner, on the other hand, is an Iranian citizen residing at the Lozano
Apartments, Guilig, Dagupan City, and is an exchange student taking a medical course at the Lyceum Northwestern
Colleges in Dagupan City; before 20 August 1987, the latter courted and proposed to marry her; she accepted his love on
the condition that they would get married; they therefore agreed to get married after the end of the school semester, which
was in October of that year; petitioner then visited the private respondent's parents in Baaga, Bugallon, Pangasinan to
secure their approval to the marriage; sometime in 20 August 1987, the petitioner forced her to live with him in the Lozano
Apartments; she was a virgin before she began living with him; a week before the filing of the complaint, petitioner's
attitude towards her started to change; he maltreated and threatened to kill her; as a result of such maltreatment, she
sustained injuries; during a confrontation with a representative of the barangay captain of Guilig a day before the filing of
the complaint, petitioner repudiated their marriage agreement and asked her not to live with him anymore and; the
petitioner is already married to someone living in Bacolod City. Private respondent then prayed for judgment ordering the
petitioner to pay her damages in the amount of not less than P45,000.00, reimbursement for actual expenses amounting
to P600.00, attorney's fees and costs, and granting her such other relief and remedies as may be just and equitable. The
complaint was docketed as Civil Case No. 16503.

In his Answer with Counterclaim,[3] petitioner admitted only the personal circumstances of the parties as averred in the
complaint and denied the rest of the allegations either for lack of knowledge or information sufficient to form a belief as to
the truth thereof or because the true facts are those alleged as his Special and Affirmative Defenses. He thus claimed that
he never proposed marriage to or agreed to be married with the private respondent; he neither sought the consent and
approval of her parents nor forced her to live in his apartment; he did not maltreat her, but only told her to stop coming to
his place because he discovered that she had deceived him by stealing his money and passport; and finally, no
confrontation took place with a representative of the barangay captain. Insisting, in his Counterclaim, that the complaint is
baseless and unfounded and that as a result thereof, he was unnecessarily dragged into court and compelled to incur
expenses, and has suffered mental anxiety and a besmirched reputation, he prayed for an award of P5,000.00 for
miscellaneous expenses and P25,000.00 as moral damages.

After conducting a pre-trial on 25 January 1988, the trial court issued a Pre-Trial Order[4] embodying the stipulated facts
which the parties had agreed upon, to wit:

"1. That the plaintiff is single and resident (sic) of Baaga, Bugallon, Pangasinan, while the defendant is single, Iranian,
citizen and resident (sic) of Lozano Apartment, Guilig, Dagupan City since September 1, 1987 up to the present;

2. That the defendant is presently studying at Lyceum-Northwestern, Dagupan City, College of Medicine, second year
medicine proper.

3. That the plaintiff is (sic) an employee at Mabuhay Luncheonette, Fernandez Avenue, Dagupan City since July, 1986
up to the present and a (sic) high school graduate;

4. That the parties happened to know each other when the Manager of the Mabuhay Luncheonette, Johhny Rabino
introduced the defendant to the plaintiff on August 3, 1986."
 73

After trial on the merits, the lower court, applying Article 21 of the Civil Code, rendered on 16 October 1989 a decision[5]
favoring the private respondent. The petitioner was thus ordered to pay the latter damages and attorney's fees; the
dispositive portion of the decision reads:

"IN THE LIGHT of the foregoing consideration, judgment is hereby rendered in favor of the plaintiff and against the
defendant.

1. Condemming (sic) the defendant to pay the plaintiff the sum of twenty thousand (P20,000.00) pesos as moral
damages.

2. Condemning further the defendant to pay the plaintiff the sum of three thousand (P3,000.00) pesos as atty's fees and
two thousand (P2,000.00) pesos at (sic) litigation expenses and to pay the costs.

3. All other claims are denied."[6]

The decision is anchored on the trial court's findings and conclusions that (a) petitioner and private respondent were
lovers, (b) private respondent is not a woman of loose morals or questionable virtue who readily submits to sexual
advances, (c) petitioner, through machinations, deceit and false pretenses, promised to marry private respondent, (d)
because of his persuasive promise to marry her, she allowed herself to be deflowered by him, (e) by reason of that
deceitful promise, private respondent and her parents -- in accordance with Filipino customs and traditions -- made some
preparations for the wedding that was to be held at the end of October 1987 by looking for pigs and chickens, inviting
friends and relatives and contracting sponsors, (f) petitioner did not fulfill his promise to marry her and (g) such acts of the
petitioner, who is a foreigner and who has abused Philippine hospitality, have offended our sense of morality, good
customs, culture and traditions. The trial court gave full credit to the private respondent's testimony because, inter alia,
she would not have had the temerity and courage to come to court and expose her honor and reputation to public scrutiny
and ridicule if her claim was false.[7]

The above findings and conclusions were culled from the detailed summary of the evidence for the private respondent in
the foregoing decision, digested by the respondent Court as follows:

"According to plaintiff, who claimed that she was a virgin at the time and that she never had a boyfriend before, defendant
started courting her just a few days after they first met. He later proposed marriage to her several times and she accepted
his love as well as his proposal of marriage on August 20, 1987, on which same day he went with her to her hometown of
Banaga, Bugallon, Pangasinan, as he wanted to meet her parents and inform them of their relationship and their intention
to get married. The photographs Exhs. "A" to "E" (and their submarkings) of defendant with members of plaintiff's family or
with plaintiff, were taken that day. Also on that occasion, defendant told plaintiff's parents and brothers and sisters that he
intended to marry her during the semestral break in October, 1987, and because plaintiff's parents thought he was good
and trusted him, they agreed to his proposal for him to marry their daughter, and they likewise allowed him to stay in their
house and sleep with plaintiff during the few days that they were in Bugallon. When plaintiff and defendant later returned
to Dagupan City, they continued to live together in defendant's apartment. However, in the early days of October, 1987,
defendant would tie plaintiff's hands and feet while he went to school, and he even gave her medicine at 4 o'clock in the
morning that made her sleep the whole day and night until the following day. As a result of this live-in relationship, plaintiff
became pregnant, but defendant gave her some medicine to abort the foetus. Still plaintiff continued to live with defendant
and kept reminding him of his promise to marry her until he told her that he could not do so because he was already
married to a girl in Bacolod City. That was the time plaintiff left defendant, went home to her parents, and thereafter
consulted a lawyer who accompanied her to the barangay captain in Dagupan City. Plaintiff, her lawyer, her godmother,
and a barangay tanod sent by the barangay captain went to talk to defendant to still convince him to marry plaintiff, but
defendant insisted that he could not do so because he was already married to a girl in Bacolod City, although the truth, as
stipulated by the parties at the pre-trial, is that defendant is still single.

Plaintiff's father, a tricycle driver, also claimed that after defendant had informed them of his desire to marry Marilou, he
already looked for sponsors for the wedding, started preparing for the reception by looking for pigs and chickens, and
even already invited many relatives and friends to the forthcoming wedding.[8]
Petitioner appealed the trial court's decision to the respondent Court of Appeals which docketed the case as CA-G.R. CV
No. 24256. In his Brief,[9] he contended that the trial court erred (a) in not dismissing the case for lack of factual and legal
basis and (b) in ordering him to pay moral damages, attorney's fees, litigation expenses and costs.

On 18 February 1991, respondent Court promulgated the challenged decision[10] affirming in toto the trial court's ruling of
16 October 1989. In sustaining the trial court's findings of fact, respondent Court made the following analysis:
 74

"First of all, plaintiff, then only 21 years old when she met defendant who was already 29 years old at the time, does not
appear to be a girl of loose morals. It is uncontradicted that she was a virgin prior to her unfortunate experience with
defendant and never had a boyfriend. She is, as described by the lower court, a barrio lass 'not used and accustomed to
the trend of modern urban life', and certainly would (sic) not have allowed 'herself to be deflowered by the defendant if
there was no persuasive promise made by the defendant to marry her.' In fact, we agree with the lower court that plaintiff
and defendant must have been sweethearts or so the plaintiff must have thought because of the deception of defendant,
for otherwise, she would not have allowed herself to be photographed with defendant in public in so (sic) loving and
tender poses as those depicted in the pictures Exhs. "D" and "E". We cannot believe, therefore, defendant's pretense that
plaintiff was a nobody to him except a waitress at the restaurant where he usually ate. Defendant in fact admitted that he
went to plaintiff's hometown of Banaga, Bugallon, Pangasinan, at least thrice; at (sic) the town fiesta on February 27,
1987 (p. 54, tsn May 18, 1988), at (sic) a beach party together with the manager and employees of the Mabuhay
Lancheonette on March 3, 1987 (p. 50, tsn id.), and on April 1, 1987 when he allegedly talked to plaintiffs mother who told
him to marry her daughter (pp. 55-56, tsn id.). Would defendant have left Dagupan City where he was involved in the
serious study of medicine to go to plaintiffs hometown in Baaga, Bugallon, unless there was (sic) some kind of special
relationship between them? And this special relationship must indeed have led to defendants insincere proposal of
marriage to plaintiff, communicated not only to her but also to her parents, and (sic) Marites Rabino, the owner of the
restaurant where plaintiff was working and where defendant first proposed marriage to her, also knew of this love affair
and defendants proposal of marriage to plaintiff, which she declared was the reason why plaintiff resigned from her job at
the restaurant after she had accepted defendants proposal (pp. 6-7, tsn March 7, 1988).

Upon the other hand, appellant does not appear to be a man of good moral character and must think so low and have so
little respect and regard for Filipino women that he openly admitted that when he studied in Bacolod city for several years
where he finished he B.S. Biology before he came to Dagupan City to study medicine, he had a common-law wife in
Bacolod City. In other words, he also lived with another woman in Bacolod City but did not marry that woman, just like
what he did to plaintiff. It is surprising, then, that he felt so little compunction or remorse in pretending to love and
promising to marry plaintiff, a young, innocent, trustful country girl, in order to satisfy his lust on her.[11]
and then concluded:

In sum, we are strongly convinced and so hold that it was defendant-appellants fraudulent and deceptive protestations of
love for and promise to marry plaintiff that made her surrender her virtue and womanhood to him and to live with him on
the honest and sincere belief that he would keep said promise, and it was likewise these (sic) fraud and deception on
appellants part that made plaintiffs parents agree to their daughters living-in with him preparatory to their supposed
marriage. And as these acts of appellant are palpably and undoubtedly against morals, good customs, and public policy,
and are even gravely and deeply derogatory and insulting to our women, coming as they do from a foreigner who has
been enjoying the hospitality of our people and taking advantage of the opportunity to study in one of our institutions of
learning, defendant-appellant should indeed be made, under Art. 21 of the Civil Code of the Philippines, to compensate
for the moral damages and injury that he had caused plaintiff, as the lower court ordered him to do in its decision in this
case.[12]
Unfazed by his second defeat, petitioner filed the instant petition on 26 March 1991; he raises therein the single issue of
whether or not Article 21 of the Civil Code applies to the case at bar.[13]

It is petitioner's thesis that said Article 21 is not applicable because he had not committed any moral wrong or injury or
violated any good custom or public policy; he has not professed love or proposed marriage to the private respondent; and
he has never maltreated her. He criticizes the trial court for liberally invoking Filipino customs, traditions and culture, and
ignoring the fact that since he is a foreigner, he is not conversant with such Filipino customs, traditions and culture. As an
Iranian Moslem, he is not familiar with Catholic and Christian ways. He stresses that even if he had made a promise to
marry, the subsequent failure to fulfill the same is excusable or tolerable because of his Moslem upbringing; he then
alludes to the Muslim Code which purportedly allows a Muslim to take four (4) wives and concludes that on the basis
thereof, the trial court erred in ruling that he does not possess good moral character. Moreover, his controversial "common
law wife" is now his legal wife as their marriage had been solemnized in civil ceremonies in the Iranian Embassy. As to his
unlawful cohabitation with the private respondent, petitioner claims that even if responsibility could be pinned on him for
the live-in relationship, the private respondent should also be faulted for consenting to an illicit arrangement. Finally,
petitioner asseverates that even if it was to be assumed arguendo that he had professed his love to the private
respondent and had also promised to marry her, such acts would not be actionable in view of the special circumstances of
the case. The mere breach of promise is not actionable.[14]

On 26 August 1991, after the private respondent had filed her Comment to the petition and the petitioner had filed his
Reply thereto, this Court gave due course to the petition and required the parties to submit their respective Memoranda,
which they subsequently complied with.
 75

As may be gleaned from the foregoing summation of the petitioner's arguments in support of his thesis, it is clear that
questions of fact, which boil down to the issue of the credibility of witnesses, are also raised. It is the rule in this
jurisdiction that appellate courts will not disturb the trial court's findings as to the credibility of witnesses, the latter court
having heard the witnesses and having had the opportunity to observe closely their deportment and manner of testifying,
unless the trial court had plainly overlooked facts of substance or value which, if considered, might affect the result of the
case.[15]

Petitioner has miserably failed to convince Us that both the appellate and trial courts had overlooked any fact of
substance or value which could alter the result of the case.

Equally settled is the rule that only questions of law may be raised in a petition for review on certiorari under Rule 45 of
the Rules of Court. It is not the function of this Court to analyze or weigh all over again the evidence introduced by the
parties before the lower court. There are, however, recognized exceptions to this rule. Thus, in Medina vs. Asistio, Jr.,[16]
this Court took the time, again, to enumerate these exceptions:

xxx

(1) When the conclusion is a finding grounded entirely on speculation, surmises or conjectures (Joaquin v. Navarro, 93
Phil. 257 [1953]); (2) When the inference made is manifestly mistaken, absurd or impossible (Luna v. Linatok, 74 Phil. 15
[1942]); (3) Where there is a grave abuse of discretion (Buyco v. People, 95 Phil. 453 [1955]); (4) When the judgment is
based on a misapprehension of facts (Cruz v. Sosing, L-4875, Nov. 27, 1953); (5) When the findings of fact are conflicting
(Casica v. Villaseca, L-9590 Ap. 30, 1957; unrep.) (6) When the Court of Appeals, in making its findings, went beyond the
issues of the case and the same is contrary to the admissions of both appellant and appellee (Evangelista v. Alto Surety
and Insurance Co., 103 Phil. 401 [1958]); (7) The findings of the Court of Appeals are contrary to those of the trial court
(Garcia v. Court of Appeals, 33 SCRA 622 [1970]; Sacay v. Sandiganbayan, 142 SCRA 593 [1986]); (8) When the
findings of fact are conclusions without citation of specific evidence on which they are based (Ibid.,); (9) When the facts
set forth in the petition as well as in the petitioners' main and reply briefs are not disputed by the respondents (Ibid.,); and
(10) The finding of fact of the Court of Appeals is premised on the supposed absence of evidence and is contradicted by
the evidence on record (Salazar v. Gutierrez, 33 SCRA 242 [1970])."
Petitioner has not endeavored to point out to Us the existence of any of the above quoted exceptions in this case.
Consequently, the factual findings of the trial and appellate courts must be respected.

And now to the legal issue.

The existing rule is that a breach of promise to marry per se is not an actionable wrong.[17] Congress deliberately
eliminated from the draft of the New Civil Code the provisions that would have made it so. The reason therefor is set forth
in the report of the Senate Committee on the Proposed Civil Code, from which We quote:

"The elimination of this chapter is proposed. That breach of promise to marry is not actionable has been definitely decided
in the case of De Jesus vs. Syquia.[18] The history of breach of promise suits in the United States and in England has
shown that no other action lends itself more readily to abuse by designing women and unscrupulous men. It is this
experience which has led to the abolition of rights of action in the so-called Heart Balm suits in many of the American
states ...."[19]
This notwithstanding, the said Code contains a provision, Article 21, which is designed to expand the concept of torts or
quasi-delict in this jurisdiction by granting adequate legal remedy for the untold number of moral wrongs which is
impossible for human foresight to specifically enumerate and punish in the statute books.[20]

As the Code Commission itself stated in its Report:

"But the Code Commission has gone farther than the sphere of wrongs defined or determined by positive law. Fully
sensible that there are countless gaps in the statutes, which leave so many victims of moral wrongs helpless, even though
they have actually suffered material and moral injury, the Commission has deemed it necessary, in the interest of justice,
to incorporate in the proposed Civil Code the following rule:

ART. 23. Any person who wilfully causes loss or injury to another in a manner that is contrary to morals, good customs or
public policy shall compensate the latter for the damage.'

'An example will illustrate the purview of the foregoing norm: 'A' seduces the nineteen-year old daughter of 'X. A promise
of marriage either has not been made, or can not be proved. The girl becomes pregnant. Under the present laws, there is
no crime, as the girl is above eighteen years of age. Neither can any civil action for breach of promise of marriage be filed.
 76

Therefore, though the grievous moral wrong has been committed, and though the girl and her family have suffered
incalculable moral damage, she and her parents cannot bring any action for damages. But under the proposed article, she
and her parents would have such a right of action.

Thus at one stroke, the legislator, if the foregoing rule is approved, would vouchsafe adequate legal remedy for that untold
number of moral wrongs which it is impossible for human foresight to provide for specifically in the statutes."[21]
Article 2176 of the Civil Code, which defines a quasi-delict thus:

"Whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay for the damage
done. Such fault or negligence, if there is no pre-existing contractual relation between the parties, is called a quasi-delict
and is governed by the provisions of this Chapter."
is limited to negligent acts or omissions and excludes the notion of willfulness or intent. Quasi-delict, known in Spanish
legal treatises as culpa aquiliana, is a civil law concept while torts is an Anglo-American or common law concept. Torts is
much broader than culpa aquiliana because it includes not only negligence, but intentional criminal acts as well such as
assault and battery, false imprisonment and deceit. In the general scheme of the Philippine legal system envisioned by
the Commission responsible for drafting the New Civil Code, intentional and malicious acts, with certain exceptions, are to
be governed by the Revised Penal Code while negligent acts or omissions are to be covered by Article 2176 of the Civil
Code.[22] In between these opposite spectrums are injurious acts which, in the absence of Article 21, would have been
beyond redress. Thus, Article 21 fills that vacuum. It is even postulated that together with Articles 19 and 20 of the Civil
Code, Article 21 has greatly broadened the scope of the law on civil wrongs; it has become much more supple and
adaptable than the Anglo-American law on torts.[23]

In the light of the above laudable purpose of Article 21, We are of the opinion, and so hold, that where a man's promise to
marry is in fact the proximate cause of the acceptance of his love by a woman and his representation to fulfill that promise
thereafter becomes the proximate cause of the giving of herself unto him in a sexual congress, proof that he had, in
reality, no intention of marrying her and that the promise was only a subtle scheme or deceptive device to entice or
inveigle her to accept him and to obtain her consent to the sexual act, could justify the award of damages pursuant to
Article 21 not because of such promise to marry but because of the fraud and deceit behind it and the willful injury to her
honor and reputation which followed thereafter. It is essential, however, that such injury should have been committed in a
manner contrary to morals, good customs or public policy.

In the instant case, respondent Court found that it was the petitioner's "fraudulent and deceptive protestations of love for
and promise to marry plaintiff that made her surrender her virtue and womanhood to him and to live with him on the
honest and sincere belief that he would keep said promise, and it was likewise these fraud and deception on appellant's
part that made plaintiff's parents agree to their daughter's living-in with him preparatory to their supposed marriage."[24] In
short, the private respondent surrendered her virginity, the cherished possession of every single Filipina, not because of
lust but because of moral seduction -- the kind illustrated by the Code Commission in its example earlier adverted to. The
petitioner could not be held liable for criminal seduction punished under either Article 337 or Article 338 of the Revised
Penal Code because the private respondent was above eighteen (18) years of age at the time of the seduction.

Prior decisions of this Court clearly suggest that Article 21 may be applied in a breach of promise to marry where the
woman is a victim of moral seduction. Thus, in Hermosisima vs. Court of Appeals,[25] this Court denied recovery of
damages to the woman because:

"x x x we find ourselves unable to say that petitioner is morally guilty of seduction, not only because he is approximately
ten (10) years younger than the complainant -- who was around thirty-six (36) years of age, and as highly enlightened as
a former high school teacher and a life insurance agent are supposed to be -- when she became intimate with petitioner,
then a mere apprentice pilot, but, also, because the court of first instance found that, complainant surrendered herself to
petitioner because, overwhelmed by her love' for him, she 'wanted to bind' him 'by having a fruit of their engagement even
before they had the benefit of clergy."
In Tanjanco vs. Court of Appeals,[26] while this Court likewise hinted at possible recovery if there had been moral
seduction, recovery was eventually denied because We were not convinced that such seduction existed. The following
enlightening disquisition and conclusion were made in the said case:

"The Court of Appeals seems to have overlooked that the example set forth in the Code Commission's memorandum
refers to a tort upon a minor who had been seduced. The essential feature is seduction, that in law is more than mere
sexual intercourse, or a breach of a promise of marriage; it connotes essentially the idea of deceit, enticement, superior
power or abuse of confidence on the part of the seducer to which the woman has yielded (U.S. vs. Buenaventura, 27 Phil.
121; U.S. vs. Arlante, 9 Phil. 595).
 77

It has been ruled in the Buenaventura case (supra) that --

To constitute seduction there must in all cases be some sufficient promise or inducement and the woman must yield
because of the promise or other inducement. If she consents merely from carnal lust and the intercourse is from mutual
desire, there is no seduction (43 Cent. Dig. tit. Seduction, par. 56). She must be induced to depart from the path of virtue
by the use of some species of arts, persuasions and wiles, which are calculated to have and do have that effect, and
which result in her ultimately submitting her person to the sexual embraces of her seducer' (27 Phil. 123).

And in American Jurisprudence we find:

'On the other hand, in an action by the woman, the enticement, persuasion or deception is the essence of the injury; and a
mere proof of intercourse is insufficient to warrant a recovery.

Accordingly it is not seduction where the willingness arises out of sexual desire or curiosity of the female, and the
defendant merely affords her the needed opportunity for the commission of the act. It has been emphasized that to allow a
recovery in all such cases would tend to the demoralization of the female sex, and would be a reward for unchastity by
which a class of adventuresses would be swift to profit.' (47 Am. Jur. 662)

xxx

Over and above the partisan allegations, the facts stand out that for one whole year, from 1958 to 1959, the plaintiff-
appellee, a woman of adult age, maintained intimate sexual relations with appellant, with repeated acts of intercourse.
Such conduct is incompatible with the idea of seduction. Plainly there is here voluntariness and mutual passion; for had
the appellant been deceived, had she surrendered exclusively because of the deceit, artful persuasions and wiles of the
defendant, she would not have again yielded to his embraces, much less for one year, without exacting early fulfillment of
the alleged promises of marriage, and would have cut short all sexual relations upon -finding that defendant did not intend
to fulfill his promise. Hence, we conclude that no case is made under Article 21 of the Civil Code, and no other cause of
action being alleged, no error was committed by the Court of First Instance in dismissing the complaint."[27]

In his annotations on the Civil Code,[28] Associate Justice Edgardo L. Paras, who recently retired from this Court, opined
that in a breach of promise to marry where there had been carnal knowledge, moral damages may be recovered:

"x x x if there be criminal or moral seduction, but not if the intercourse was due to mutual lust. (Hermosisima vs. Court of
Appeals, L-14628, Sept. 30, 1960; Estopa vs. Piansay, Jr., L-14733, Sept. 30, 1960; Batarra vs. Marcos, 7 Phil. 56 (sic);
Beatriz Galang vs. Court of Appeals, et al., L-17248, Jan. 29, 1962). (In other words, if the CAUSE be the promise to
marry, and the EFFECT be the carnal knowledge, there is a chance that there was criminal or moral seduction, hence
recovery of moral damages will prosper. If it be the other way around, there can be no recovery of moral damages,
because here mutual lust has intervened). x x x."
together with "ACTUAL damages, should there be any, such as the expenses for the wedding preparations (See
Domalagon v. Bolifer, 33 Phil. 471)."

Senator Arturo M. Tolentino[29] is also of the same persuasion:

"It is submitted that the rule in Batarra vs. Marcos[30] still subsists, notwithstanding the incorporation of the present
article[31] in the Code. The example given by the Code Commission is correct, if there was seduction, not necessarily in
the legal sense, but in the vulgar sense of deception. But when the sexual act is accomplished without any deceit or
qualifying circumstance of abuse of authority or influence, but the woman, already of age, has knowingly given herself to a
man, it cannot be said that there is an injury which can be the basis for indemnity.

But so long as there is fraud, which is characterized by wilfullness (sic), the action lies. The court, however, must weigh
the degree of fraud, if it is sufficient to deceive the woman under the circumstances, because an act which would deceive
a girl sixteen years of age may not constitute deceit as to an experienced woman thirty years of age. But so long as there
is a wrongful act and a resulting injury, there should be civil liability, even if the act is not punishable under the criminal law
and there should have been an acquittal or dismissal of the criminal case for that reason."
We are unable to agree with the petitioner's alternative proposition to the effect that granting, for argument's sake, that he
did promise to marry the private respondent, the latter is nevertheless also at fault. According to him, both parties are in
pari delicto; hence, pursuant to Article 1412(1) of the Civil Code and the doctrine laid down in Batarra vs. Marcos,[32] the
private respondent cannot recover damages from the petitioner. The latter even goes as far as stating that if the private
respondent had "sustained any injury or damage in their relationship, it is primarily because of her own doing,"[33] for:
 78

"x x x She is also interested in the petitioner as the latter will become a doctor sooner or later. Take notice that she is a
plain high school graduate and a mere employee ... (Annex "C") or a waitress (TSN, p. 51, January 25, 1988) in a
luncheonette and without doubt, is in need of a man who can give her economic security. Her family is in dire need of
financial assistance (TSN, pp. 51-53, May 18, 1988). And this predicament prompted her to accept a proposition that may
have been offered by the petitioner.[34]
These statements reveal the true character and motive of the petitioner. It is clear that he harbors a condescending, if not
sarcastic, regard for the private respondent on account of the latters ignoble birth, inferior educational background,
poverty and, as perceived by him, dishonorable employment. Obviously then, from the very beginning, he was not at all
moved by good faith and an honest motive. Marrying with a woman so circumstanced could not have even remotely
occurred to him. Thus, his profession of love and promise to marry were empty words directly intended to fool, dupe,
entice, beguile and deceive the poor woman into believing that indeed, he loved her and would want her to be his life's
partner. His was nothing but pure lust which he wanted satisfied by a Filipina who honestly believed that by accepting his
proffer of love and proposal of marriage, she would be able to enjoy a life of ease and security. Petitioner clearly violated
the Filipinos concept of morality and so brazenly defied the traditional respect Filipinos have for their women. It can even
be said that the petitioner committed such deplorable acts in blatant disregard of Article 19 of the Civil Code which directs
every person to act with justice, give everyone his due and observe honesty and good faith in the exercise of his rights
and in the performance of his obligations.

No foreigner must be allowed to make a mockery of our laws, customs and traditions.

The pari delicto rule does not apply in this case for while indeed, the private respondent may not have been impelled by
the purest of intentions, she eventually submitted to the petitioner in sexual congress not out of lust, but because of moral
seduction. In fact, it is apparent that she had qualms of conscience about the entire episode for as soon as she found out
that the petitioner was not going to marry her after all, she left him. She is not, therefore, in pari delicto with the petitioner.
Pari delicto means "in equal fault; in a similar offense or crime; equal in guilt or in legal fault."[35] At most, it could be
conceded that she is merely in delicto.

"Equity often interferes for the relief of the less guilty of the parties, where his transgression has been brought about by
the imposition or undue influence of the party on whom the burden of the original wrong principally rests, or where his
consent to the transaction was itself procured by fraud.[36]
In Mangayao vs. Lasud,[37] We declared:

"Appellants likewise stress that both parties being at fault, there should be no action by one against the other (Art. 1412,
New Civil Code). This rule, however, has been interpreted as applicable only where the fault on both sides is, more or
less, equivalent. It does not apply where one party is literate or intelligent and the other one is not (c.f. Bough vs.
Cantiveros, 40 Phil. 209)."
We should stress, however, that while We find for the private respondent, let it not be said that this Court condones the
deplorable behavior of her parents in letting her and the petitioner stay together in the same room in their house after
giving approval to their marriage. It is the solemn duty of parents to protect the honor of their daughters and infuse upon
them the higher values of morality and dignity.

WHEREFORE, finding no reversible error in the challenged decision, the instant petition is hereby DENIED, with costs
against the petitioner.
SO ORDERED.
 79

G.R. No. L-33171, May 31, 1979

PORFIRIO P. CINCO, PETITIONER-APPELLANT, VS. HON. MATEO CANONOY, PRESIDING JUDGE OF
THE THIRD BRANCH OF THE COURT OF FIRST INSTANCE OF CEBU, HON. LORENZO B. BARRIA,
CITY JUDGE OF MANDAUE CITY, SECOND BRANCH, ROMEO HILOT, VALERIANA PEPITO AND
CARLOS PEPITO, RESPONDENTS-APPELLEES.

DECISION
MELENCIO-HERRERA, J.:

This is a Petition for Review on Certiorari of the Decision of the Court of First Instance of Cebu rendered on November 5,
1970.

The background facts to the controversy may be set forth as follows:

Petitioner herein filed, on February 25, 1970, a Complaint in the City Court of Mandaue City, Cebu, Branch II, for the
recovery of damages on account of a vehicular accident involving his automobile and a jeepney driven by Romeo Hilot
and operated by Valeriana Pepito and Carlos Pepito, the last three being the private respondents in this suit. Subsequent
thereto, a criminal case was filed against the driver, Romeo Hilot, arising from the same accident. At the pre-trial in the
civil case, counsel for private respondents moved to suspend the civil action pending the final determination of the
criminal suit, invoking Rule 111, section 3 (b) of the Rules of Court, which provides:

"(b) After a criminal action has been commenced, no civil action arising from the same offense can be prosecuted, and the
same shall be suspended, in whatever stage it may be found, until final judgment in the criminal proceeding has been
rendered;"
The City Court of Mandaue City in an Order dated August 11, 1970, ordered the suspension of the civil case. Petitioner's
Motion for Reconsideration thereof, having been denied on August 25, 1970,[1] petitioner elevated the matter on Certiorari
to the Court of First Instance of Cebu, respondent Judge presiding, on September 11, 1970, alleging that the City Judge
had acted with grave abuse of discretion in suspending the civil action for being contrary to law and jurisprudence.[2]

On November 5, 1970, respondent Judge dismissed the Petition for Certiorari on the ground that there was no grave
abuse of discretion on the part of the City Court in suspending the civil action inasmuch as damage to property is not one
of the instances when an independent civil action is proper; that petitioner has another plain, speedy, and adequate
remedy under the law, which is to submit his claim for damages in the criminal case; that the resolution of the City Court is
interlocutory and, therefore, Certiorari is improper; and that the Petition is defective inasmuch as what petitioner actually
desires is a Writ of Mandamus (Annex "R"). Petitioner's Motion for Recon-sideration was denied by respondent Judge in
an Order dated November 14, 1970 (Annex "S" and Annex "U").

Hence, this Petition for Review before this Tribunal, to which we gave due course on February 25, 1971.[3]

Petitioner makes these:

"ASSIGNMENTS OF ERROR

"1. THE TRIAL COURT, RESPONDENT JUDGE MATEO CANONOY, ERRED IN HOLDING THAT THE TRIAL OF THE
CIVIL CASE NO. 189 FILED IN THE CITY COURT OF MANDAUE SHOULD BE SUSPENDED UNTIL AFTER A FINAL
JUDGMENT IS RENDERED IN THE CRIMINAL CASE.
"2. THAT THE COURT ERRED IN HOLDING THAT IN ORDER TO AVOID DELAY THE OFFENDED PARTY MAY
SUBMIT HIS CLAIM FOR DAMAGES IN THE CRIMINAL CASE.
"3. THAT THE COURT ERRED IN HOLDING THAT THE PETITION FOR CERTIORARI IS NOT PROPER, BECAUSE
THE RESOLUTION IN QUESTION IS INTERLOCUTORY.
"4. THAT THE COURT ERRED IN HOLDING THAT THE PETITION IS DEFECTIVE."[4]
all of which can be synthesized into one decisive issue: whether or not there can be an independent civil action for
damage to property during the pendency of the criminal action.

From the Complaint filed by petitioner before the City Court of Mandaue City, Cebu, it is evident that the nature and
character of his action was quasi-delictual, predicated principally on articles 2176 and 2180 of the Civil Code, which
provide:
 80

"Art. 2176. Whoever by act or omission causes damage to another, there being fault or negligence is obliged to pay for
the damage done. Such fault or negligence, if there is no pre-existing contractual relation between the parties, is called a
quasi-delict and is governed by the provisions of this Chapter. (1902a)".
"Art. 2180. The obligation imposed by article 2176 is demandable not only for one's own acts or omissions, but also for
those of persons for whom one is responsible.
" xxx xxx xxx
"Employers shall be liable for the damages 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.
" xxx xxx xxx
"The responsibility treated of in this article shall cease when the persons herein mentioned prove that they observed all
the diligence of a good father of a family to prevent damage. (1903a)"
Thus, plaintiff made the essential averments that it was the fault or negligence of the driver, Romeo Hilot, in the operation
of the jeepney owned by the Pepitos which caused the collision between his automobile and said jeepney; that damages
were sustained by petitioner because of the collision; that there was a direct causal connection between the damages he
suffered and the fault and negligence of private respondents.

Similarly, in the Answer, private respondents contended, among others, that defendant, Valeriana Pepito, observed due
diligence in the selection and supervision of her employees, particularly of her co-defendant Romeo Hilot, a defense
peculiar to actions based on quasi-delict.[5]

Liability being predicated on quasi-delict, the civil case may proceed as a separate and independent civil action, as
specifically provided for in Article 2177 of the Civil Code.

"Art. 2177. Responsibility for fault or negligence under the preceding article is entirely separate and distinct from the civil
liability arising from negligence under the Penal Code. But the plaintiff cannot recover damages twice for the same act or
omission of the defendant. (n)"
The crucial distinction between criminal negli-gence and quasi-delict, which is readily discernible from the foregoing codal
provision, has been expounded in Barredo vs. Garcia, et al., 73 Phil. 607, 620-621,[6] thus:

"Firstly, the Revised Penal Code in article 365 punishes not only reckless but also simple imprudence. If we were to hold
that articles 1902 to 1910 of the Civil Code refer only to fault or negligence not punished by law, according to the literal
import of article 1093 of the Civil Code, the legal institution of culpa aquiliana would have very little scope and application
in actual life. Death or injury to persons and damage to property through any degree of negligence - even the slightest
would have to be indemnified only through the principle of civil liability arising from crime. In such a state of affairs, what
sphere would remain for quasi-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 quasi-delito, which
is conserved and made enduring in articles 1902 to 1910 of the Spanish Civil Code.
"Secondly, to find the accused guilty in a criminal case, proof of guilt beyond reasonable doubt is required, while in a civil
case, preponderance of evidence is sufficient to make the defendant pay in damages. There are numerous cases of
criminal negligence which cannot be shown beyond reasonable doubt, but can be proved by a preponderance of
evidence. In such cases, the defendant can and should be made responsible in a civil action under articles 1902 to 1910
of the Civil Code, otherwise, there would be many instances of unvindicated civil wrongs. Ubi jus ibi remedium.
"Thirdly, to hold that there is only one way to make defendants liability effective, and that is, to sue the driver and exhaust
his (the latter's) property first, would be tantamount to compelling the plaintiff to follow a devious and cumbersome method
of obtaining a 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
conveyances usually do not have sufficient means with which to pay damages. Why, then, should the plaintiff be required
in all cases to go through this roundabout, unnecessary, and probably useless procedure? In contruing 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
partimonial safety of others. As Theilhard has said, 'they should reproach themselves, at least, some for their weakness,
others for their poor selection and all for their negligence.' And according to Manresa, 'It is much more equitable and just
that such responsibility should fail upon the principal or director who could have chosen a careful and prudent employee,
 81

and not upon the such employee because of his confidence in the principal or director'. (Vol. 12, p. 622, 2nd Ed.) Many
jurists also base this primary responsibility of the employer on the principle of representation of the principal by the agent.
Thus, Oyuelos says in the work already cited (Vol. 7, p. 747) that before third persons the employer and employee 'vienen
a ser como una sola personalidad, por refundicion de la del dependiente en la de quien la emplea y 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 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 crime, forgetting that there is another remedy, which is by invoking articles 1902-1910
of the Civil Code. Although this habitual method is allowed by our laws, it has nevertheless rendered practically useless
and nugatory the more expeditious and effective remedy based on culpa aquiliana or culpa extra-contractual. In the
present case, we are asked to help perpetuate this usual course. But we believe it is high time we pointed out to the harm
done by such practice and to restore the principle of responsibility for fault or negligence under articles 1902 et seq. of the
Civil Code to its full rigor. It is high time we cause the stream of quasi-delict or culpa aquiliana to flow on its own natural
channel, so that its waters may no longer be diverted into that of a crime under the Penal Code. This will, it is believed,
make for the better safeguarding of private rights because it reestablishes 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." (Garcia vs. Florido, 52 SCRA 420, 424-425, Aug. 31, 1973). (Emphasis supplied)
The separate and independent civil action for a quasi-delict is also clearly recognized in section 2, Rule 111 of the Rules
of Court, reading:

"Sec. 2. Independent civil action. - In the cases provided for in Articles 31, 32, 33, 34 and 2177 of the Civil Code of the
Philippines, an independent civil action entirely separate and distinct from the criminal action, may be brought by the
injured party during the pendency of the criminal case, provided the right is reserved as required in the preceding section.
Such civil action shall proceed independently of the criminal prosecution, and shall require only a preponderance of
evidence."
Significant to note is the fact that the foregoing section categorically lists cases provided for in Article 2177 of the Civil
Code, supra, as allowing of an "independent civil action".

Tested by the hereinabove-quoted legal tenets, it has to be held that the City Court, in suspending the civil action, erred in
placing reliance on section 3 (b) of Rule 111 of the Rules of Court, supra, which refers to "other civil actions arising from
cases not included in the section just cited" (i.e., Section 2, Rule 111 above quoted), in which case "once the criminal
action has being commenced, no civil action arising from the same offense can be prosecuted and the same shall be
suspended in whatever stage it may be found, until final judgment in the criminal proceeding has been rendered". Stated
otherwise, the civil action referred to in Secs. 3(a) and 3(b) of Rule 111 of the Rules of Court, which should be suspended
after the criminal action has been instituted is that arising from the criminal offense and not the civil action based on quasi-
delict.

Article 31 of the Civil Code then clearly assumes relevance when it provides:

"Art. 31. When the civil action is based on an obligation not arising from the act or omission complained of as a felony,
such civil action may proceed independently of the criminal proceedings and regardless of the result of the latter."
For obviously, the jural concept of a quasi-delict is that of an independent source of obligation "not arising from the act or
omission complained of as a felony". Article 1157 of the Civil Code bolsters this conclusion when it specifically recognizes
that:

"Art. 1157. Obligations arise from:

<!--[if !supportLists]-->(1) <!--[endif]-->Law;
<!--[if !supportLists]-->(2) <!--[endif]-->Contracts;
<!--[if !supportLists]-->(3) <!--[endif]-->Quasi-contracts;
<!--[if !supportLists]-->(4) <!--[endif]-->Acts or omissions punished by law; and
<!--[if !supportLists]-->(5) <!--[endif]-->Quasi-delicts. (1089a)" (Underscoring supplied)
It bears emphasizing that petitioner's cause of action is based on quasi-delict. The concept of quasi--delict, as enunciated
in Article 2176 of the Civil Code (supra), is so broad that it includes not only injuries to persons but also damage to
property.[7] It makes no distinction between "damage to persons" on the one hand and "damage to property" on the other.
Indeed, the word "damage" is used in two concepts: the "harm" done and "reparation" for the harm done. And with
respect to "harm" it is plain that it includes both injuries to person and property since "harm" is not limited to personal but
 82

also to property injuries. In fact, examples of quasi-delict in the law itself in-clude damage to property. An instance is
Article 2191(2) of the Civil Code which holds proprietors responsible for damages caused by excessive smoke which may
be harmful "to persons or property".

In the light of the foregoing disquisition, we are constrained to hold that respondent Judge gravely abused his discretion in
upholding the Decision of the City Court of Mandaue City, Cebu, suspending the civil action based on quasi-delict until
after the criminal case is finally terminated. Having arrived at this conclusion, a discussion of the other errors assigned
becomes unnecessary.

WHEREFORE, granting the Writ of Certiorari prayed for, the Decision of the Court of First Instance of Cebu sought to be
reviewed is hereby set aside, and the City Court of Mandaue City, Cebu, Branch II, is hereby ordered to proceed with the
hearing of Civil Case No. 189 of that Court.

Without pronouncement as to costs.

SO ORDERED.
 83

G.R. No. 48006, July 08, 1942

FAUSTO BARREDO, PETITIONER, VS. SEVERINO GARCIA AND TIMOTEA ALMARIO, RESPONDENTS.

DECISION
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,t
there was a head-on collision between a taxi of the Malate Taxicab driven by Pedro Fontanilla and a carretela guided by
Pedro Dimapilis. 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 Mulate 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 pf the mishap, as he was
driving on the wrong side of the road, and at high Speed. As to Rarredo's responsibility, the Court of Appeals found:

"* * * It is admitted that defendant is Fontanilla's employer. There is no proof that he exercised the diligence of good
father of a family to prevent the damage. (See 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) violations
which appeared in the records of the Bureau of Public Works available to the 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 against Pedro Fontanilla, the person criminally liable, Barredo
cannot be held responsible in this case. The petitioner's brief states on page 10:

"* * * The Court of Appeals holds that the petitioner is being sued for bis 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 this case article 1903 of the Civil Code. Article 1903 of the Civil
Code in found in Chapter II, Title 16, Book IV of the Civil Code. This fact makes said article inapplicable to a civil liability
arising from a crime as in the case at bur 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 omissions not punishable by law.'"
The gist of the decision of tho 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, bis (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
this perplexing subject by renown jurists and we arc likewise guided by the decisions of this Court in previous cases as
well as by the solemn clarity of the considerations 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 a delict or crime. Upon
this principle, and on the wording: and spirit of article 1903 of the Civil Code, the primary and direct responsibility of
employers may be safely anchored.
 84

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

CIVIL COM

"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."

* * * * * * *

"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."

* * * * * * *

"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 person si 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 damagea 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 damagea 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 exercised all the diligence of a good father of a family to prevent the damage."

"ART. 1901. 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 perton 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 Coden does not include exemption from civil liability,
which shall be enforced subject to the following rules:

"First. In casts of subdivisions 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
 85

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 persons 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 proportinate amount for which each one shall be liable.

"When the respective shares can not be equitably determined, even approzimately, or when the liability also attaches to
the Government, or to the majority of the ihabitants 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 corporations 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 subsidiary liable for the restitution of goods taken by robbery or theft within their houses from guest
lodging therein, or for the payment of the value thereof, provided that such guests shall have notified in advance the
innerkeeper 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 reperesentative may have given them with respect to the care of
and vigilance over such goods. No liability shall attache in case of robbery with violence 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."

* * * * * * *

"ART. 365. Imprudence and negligence. Any person who, by reckless impurdence, 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 mayors in its minimum period shall be imposed."
It will thus be seen that while the terms of article 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 act causing does not destroy the distinction betweem the civil liability arising from a crime and
the responsibility for causi-delitos or culpa extra-contractual. The same negligent act causing damages may produce civil
liability arising from a crime under article 100 of the Revise Penal Code, or create an action for causi-delito or culpa extra-
contractual under articles 1902-1910 of the Civil Code.
 86

The individuality of cuasi-delito or culpa extra-contratual looms clears 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, say" "Tenudo es de fazer emienda, porque,
como quier que el non fizo a sabiendas el dao al otro, pero acaesci6 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 1902-1910. 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 aquliana or cuasi-delito under the Civil
Code are:

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

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

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, causi-delitos, include all acts in which "any kind 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 "Responsabilidad" in the "Enciclopedia Juridica Espaola" (Vol. XXVII, p. 414) says:

"El concepto juridico de la responsabilidad civil abarca d I versos aipoctoa y comprende a diferentes peraonas. Aai, exiatc
una responsabilidad civil pro-piamenle dicha, que en mngtin caso Neva aparejada responsabilidad criminal alguna, y otra
que ea con-sccuencia indeclinable dc la penal quo nace de todo delito o falta."

"The juridical concept of civil responsabilidad has various aspects and comprises different persons. Thus, there is a civil
responsabilidad, properly speaking, which in no case carries with it any criminal responsabilidad, and another which is a
necesary 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 Canta-brico 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 tas cosas asi, a proposito de la realidad pura y neta de los hechos, todavia menoa parece sostcnible que
exista cosa juzgada ace re a 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 severaa. La lesion causada por delito o falta en los derechoa
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 ae enmiendan los
quebrantos y menoscabos, el agraviado exeusa procurar el ya conseguido desagravio; pero esta eventual coincidencia
de los efectos, no borra la diversidad originaria de las accioncs civiles para pedir indemniiacion.

"Estas, para el caso actual (proscindiendo de culpas contractuales, que no vendrian a cuento y que tienen otro regimen),
dimanan, segun el articulo 1902 del Codigo Civil, de toda accion u omision, causante de daos o perjuicios, en que
intervenes 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
 87

Codigo Penal, atentos al espiritu y a los lines sociales y politicos del miamo, desenvuelven y ordenon la materia de
responsabilidades civiles nacida de delito, en terminos separados del regimen por ley comun de la culpa que se
denomina aquiliana, por alusion a precedontes legislatives del Corpus Juris. Seria internpestivo un paralelo entre
aquellas ordenaciones, y la de la obligacion de indemnizar a titulo de culpa civil; pero viene al caao y es necesaria una de
laa diferenciaciones que en el tal paralelo se notarial.

"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 servieio
de los cuales estan los delineuentes; 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 obilgacion que impone
el articulo anterior es exigible, no solo por los actos y omisiones propios, sino por los de aquellas personal 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 causes criminales con el caracter
subsidiario de su rcsponsabilidad civil por razon del delito, son demandadas y condenadaa directa y aisladamente,
cuando se trata de la obligacion, ante los tribunales civiles.

"Siendo como se ve, divecao 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, abatenido de asistir al juicio criminal la
Compaia del Ferrocarril Cantabrieo, que se reservo ejercitar sus aceiones, parece innegable que la de indemnitacion
por los daos y perjuicios que le irrogot 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 legit imomenle reservada para despues del proceso; peto al
dedararse que no existio delito, ni responsabilidad dimanada de delito, materia unica sobre que tenfan jurisdiccion
aquelloa juzgadores, se redobla el motivo para la obligation 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 be res judicata
with regard to the civil obligation for damages on account of the losses caused by the collision of the trains. The title upon
which the action for reparation is based cannot be confused with the civil responsibilities born of a crime, because there
exists in the latter, whatever each nature, a culpa surrounded with aggravating aspects which give rise to penal measures
that are more or less severe. The injury caused by a felony or misdemeanor upon civil rights requires restitutions,
reparations, or indemnifications which, like the penalty itself, affect public order; for this reason, they are ordinarily
entrusted to the office of the prosecuting attorney; and it is clear that if by this means the losses and damages are
repaired, the injured party no longer desires to seek another relief; but this coincidence of effects does not eliminate the
peculiar nature of civil actions to aak 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 auch 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, hearing 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 aa 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 distributing 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 rtemandable, not only for
personal acts and omissions, but a 130 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 subtidiary civil responsibility by reason of
the crime, are sued and sentenced directly and separatety with regard to the obligation, before the civil courts.
 88

"Seeing that the title of this obligation in 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 an the Companla del Ferrocarril Cantibrico 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 iudice 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-exiatence of the felony and the non-existence of the responsibility
arising from the crime, which was the sole subject matter upon which the Tribunal del Jurado had jurisdiction, there is
greater reason for the civil obligation ex lege, and it becomes clearer that the action for its enforcement remain intact and
is not res judicata."
Laurent, a jurist who has written a monumental work on the French Civil Code, on which the Spanish Civil Code is largely
based and whose provisions on cuasi-delito or culpa extra-contractual are similar to those of the Spanish Civil Code,
says, referring to article 1384 of the French Civil Code which corresponds to article 1903, Spanish Civil Code:

"The action can be brought directly against the person responsible (for another), without including the author of the act.
The action against the principal is accessory in the sense that it implies the existence of a prejudicial act committed by the
employee, hut it is not subsidiary in the sense that it can not be instituted till after the judgment against the author of the
art 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. 734-736.)
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 omisionca de aquellas person as por las
que se debe responder, ea 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 juaticia y a la maxima universal, segiin la que las faltas son
pomonales, 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 cuasi 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 (menorea de edad, incapacitados, dependientes, aprendices) causan un dao, la
ley presume que el padre, el tutor, el maestro, etc., han cometido una falta de negligeneia para prevenir o evitar el dao.
Esta falta es la que ta 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 reaponsabilidad 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 whom 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, in-capacitated persons, employees, apprentices) causes any damage, the
law preaumes 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 (or one's own art. 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 se 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 raznna Id responsabilidad. Esta responsabilidad, es directa o es aubsidiaria? En el orden penal, el Codigo de
esta clase distingue entre menorea 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 1303, ha de entendorse dirccta, por el tenor
del articulo que impone la responsabilidad precisamentc 'por loa actos de aquellas personas de quienes se deba
responder.'"
 89

"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 ia liable for the acts of those persons with whom there is a bond or tie
which givea riae 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 article, 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 Electrica 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, praying 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 codenar
a la Compaia Electrica Madrileia al pago del dao causarto con la muerte de Ramon Lafuente Izquierdo, desconoce el
valor y efectos jurldieos de la sentencia absolutoria dieteda en la causa criminal que ae siguio por el mismo hecho,
euando es lo cierto quo de este han conocido las dos jurisdicciones bajo diferentes aspectos, y como la de lo criminal
declaro 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 eate el unico fundaments del fallo absolutorio, el
concurso de la culpa o negligcncia no calificadas, fuente de obligaciones civilea segun el articulo 1902 del Codigo Civil, y
que alcanzan, segun el 1903, entre otras personas, a los Dircctores de establecimientos o empresas por los danos
causados por sus dependientes en determinadas condiciones, es manifiesto que la de lo civil, al conocer del mismo
hecho bajo este ultimo aspecto y al condenar a la Compania recurrent a la indemnizacion del dao causado por uno de
sus empleados, lejos de infringir los mencionados textos, en relacion con el articulo 116 de la Ley de Enjuiciamiento
Criminal, se ha atenido eatrictarnente a ellos, sin invadir atribuciones ajenas a su jurisdiccion propia, ni contrariar en lo
mas mlnimo 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 caae instituted on account of the aame 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 is its authority that the act in question did not constitute a felony becauae there was
no grave careleaaneaa or negligence, and this being the only basis of acquittal, it does not 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 jurisdiction 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
cause if by one of is employees, far from violating said legal proviaions, 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 contraflicting the decision in that cause."(Italics 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 hia
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 hia 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 negligencewhich he did not overcomeunder article 1903. Thus, there
 90

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 plaintiffs chose 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 correctional.

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

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

"Considerando que la senteneia diecutida reconoce, en virtud de los hechos que consigns con relacion a las pruebas del
pleito: 1., que las expediciones facturadas por la compaia ferroviaria a la consiftnacion del actor de las vasijas vacias
que en au demanda relacionan tenian como fin el que este las devolviera a sus remitentes con vinos y alcoholes; 2., que
llegadas a su destino tales mercancias no se quiaieron 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 do reclamarlas el
demandante le originaron daos y perjuicios en cantidad de bastante iniportnncin como expendedor al por mayor que era
de vinos y alcoholea por las ganancias que dejo de obtener al verae privado de servir los pedidos que se le hablan hecho
por los remitentes en los envases:

"Considerando que sobre eata base hay necesidad de estimar los euatro motivos que integran este recurso, porque la
demand a inicial del pleito a que se contrae no contiene accion que nazca del incumplimicnto del contrato de tranaporte,
toda vez que no se funda en el retraso de la llegada de las mereancias ni de ningun otro vinculo contractual entre las
partea contendientes, careciendo, por tanto, de aplicadon el articulo 371 del Codigo de Comercio, en que principalmente
descansa el fallo recurrido, sino que se limita a pedir la reparation dc los daos y perjuicios producidos en el patrimonio
del actor por la injustificada y dolose ncgativa del porteador a la entrega de laa mereancias a su nombre conaignadaa,
aegun 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 aquelloa por celaciones de
caracter economico y de jerarquia administrativa."

"Considering that the sentence in question recognizes, in virtue of the facts which it declarea, 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 wher. the
aaid merchandise reached their destination, their delivery to the consignee waa 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 waa unable to fill the orders sent to him by the consignors of the receptacles:

"Considering that upon this basis there ia need of upholding the four assignments of error, as the original complaint did
not contain any cause of action arising from non-fulfilment 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 itaelf to asking for
reparation for lossta 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 aa stated by the aentence, 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." (Italics 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
 91

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 oil 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 hia 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 preceding article is demandable, not only for personal acts and omissions,
but also for those of the persons for whom they should be responsible.

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

* * * * * * *

" '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.

* * * * * * *

" '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 hia 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 ot 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 bo
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.
 92

"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 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 out 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 10S3, '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 full within
the class of acts unpunished by the law, the consequences of which are regulated by articles 1902 and 1903 of the Civil
Code. The acta 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 dutiea are subject to articles 1101, 1103, and 1104 of the aame code. A typical
application of thia 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 employ-ment, 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 or 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; Thif Court in affirming the judgment, said in part:

"If it were true that the defendant, in coming from the southern part of Sol ana 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 Solan a 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 Solans Street northward, he should have adjuated 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 auch 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 thiil the automobile entered Solana Street from Eeal 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 individuality of a cuasi-delito or culpa aquiliana under the Civil Code has
been fully and clearly recognized, even with regard to a negligent act for which the wrongdoer could have been
prosecuted and convicted in a criminal case and for which, after such a 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 defendant J. V. House, when an automobile appeared from the opposite direction. The little girl, who
 93

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 court 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. ([1307], 7 Phil., 359), still rule. Article 1002 of the Civil Code
muat 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 he 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 arc 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 cither in 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 thut 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 arts 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
 94

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 1003, 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 hia servant." (Bahia vs. Litonjua and LeyneB
[1915], 30 Phil., 624; Cangco vs. Manila Hailroad 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 & truck of the City of Manila and a street car of tho 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 authorises 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 fulling under article 604 of the
Penal Code. The act of the motorman was not a wrongful or negligrnt act or omission not punishable by law. Accordingly,
the civil obligation connected un with the Penal Code and not with article 1993 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 net a case of civil negligence."

* * * * * * *

"Our deduction, therefore, is lhat 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 (he effect that article 1302 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 Fontanilia's criminal negligence. In other words, the case of City of Manila vs. Manila
Electric Co., supra, is predicated on an entirely different theory, which is the subsidiary liability of an employer arising from
a criminal act of his employee, whereas the foundation of the decision of the Court of Appeals in the present case is the
employer's primary liability under article 1903 of the Civil Code. We have already seen that this is a proper and
independent remedy.

Arambulo vs. Manila Electric Co. (55 Phil., 75), is another case invoked by the defendant. A motorman in the employ of
the Manila Electric Company had been convicted of homicide by simple negligence and sentenced, among other things,
 95

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 hud 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 io hold, (1) that the exemption from tivil liability established
in article 1903 of the Civil Code for nil who have acted with the diligence of n good futlier of a family, is not applicable to
tlie subsidiary civil liability provided in article 20 of the Penal Code."
The above case is also extraneous to the Aheory 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 due 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 employerin this case the defendant-petitioneris 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 negligenceeven 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 unvindkated 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 conveyances usually do
not have sufficient means with which to pay damages. Why, then, should the plaintiff be required in all cases to go
through this roundabout, unnecessary, and probably useless procedure? In construing the laws, courts have endeavored
to shorten and facilitate the pathways of right and justice.
 96

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 bu 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 culpo 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 petitoner.

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

 97

G.R. NO. 158995, September 26, 2006

L.G. FOODS CORPORATION AND VICTORINO GABOR, VICE-PRESIDENT AND GENERAL MANAGER,
PETITIONERS, VS. HON. PHILADELFA B. PAGAPONG-AGRAVIADOR, IN HER CAPACITY AS
PRESIDING JUDGE OF REGIONAL TRIAL COURT, BRANCH 43, BACOLOD CITY, AND SPS.
FLORENTINO AND THERESA VALLEJERA, RESPONDENTS.

DECISION
GARCIA, J.:

Assailed and sought to be set aside in this petition for review on certiorari is the Decision[1] dated April 25, 2003 of the
Court of Appeals (CA), as reiterated in its Resolution of July 10, 2003,[2] in CA-G.R. SP No. 67600, affirming an earlier
Order of the Regional Trial Court (RTC) of Bacolod City, Branch 43, which denied the petitioners' motion to dismiss in Civil
Case No. 99-10845, an action for damages arising from a vehicular accident thereat instituted by the herein private
respondents - the spouses Florentino Vallejera and Theresa Vallejera - against the petitioners.

The antecedent facts may be briefly stated as follows:

On February 26, 1996, Charles Vallereja, a 7-year old son of the spouses Florentino Vallejera and Theresa Vallejera, was
hit by a Ford Fiera van owned by the petitioners and driven at the time by their employee, Vincent Norman Yeneza y
Ferrer. Charles died as a result of the accident.

In time, an Information for Reckless Imprudence Resulting to Homicide was filed against the driver before the Municipal
Trial Court in Cities (MTCC), Bacolod City, docketed as Criminal Case No. 67787, entitled People of the Philippines v.
Vincent Norman Yeneza.

Unfortunately, before the trial could be concluded, the accused driver committed suicide, evidently bothered by
conscience and remorse. On account thereof, the MTCC, in its order of September 30, 1998, dismissed the criminal case.

On June 23, 1999, in the RTC of Bacolod City, the spouses Vallejera filed a complaint[3] for damages against the
petitioners as employers of the deceased driver, basically alleging that as such employers, they failed to exercise due
diligence in the selection and supervision of their employees. Thereat docketed as Civil Case No. 99-10845, the complaint
was raffled to Branch 43 of the court.

In their Answer with Compulsory Counterclaim,[4] the petitioners as defendants denied liability for the death of the
Vallejeras' 7-year old son, claiming that they had exercised the required due diligence in the selection and supervision of
their employees, including the deceased driver. They thus prayed in their Answer for the dismissal of the complaint for
lack of cause of action on the part of the Vallejera couple.

During pre-trial, the defendant petitioners insisted that their dismissal prayer be resolved. Hence, the trial court required
them to file within ten days a memorandum of authorities supportive of their position.

Instead, however, of the required memorandum of authorities, the defendant petitioners filed a Motion to Dismiss,
principally arguing that the complaint is basically a "claim for subsidiary liability against an employer" under the provision
of Article 103[5] of the Revised Penal Code. Prescinding therefrom, they contend that there must first be a judgment of
conviction against their driver as a condition sine qua non to hold them liable. Ergo, since the driver died during the
pendency of the criminal action, the sine qua non condition for their subsidiary liability was not fulfilled, hence the of lack
of cause of action on the part of the plaintiffs. They further argue that since the plaintiffs did not make a reservation to
institute a separate action for damages when the criminal case was filed, the damage suit in question is thereby deemed
instituted with the criminal action. which was already dismissed.

In an Order dated September 4, 2001,[6] the trial court denied the motion to dismiss for lack of merit and set the case for
pre-trial. With their motion for reconsideration having been denied by the same court in its subsequent order[7] of
September 26, 2001, the petitioners then went on certiorari to the CA in CA-G.R. SP No. 67600, imputing grave abuse of
discretion on the part of the trial judge in refusing to dismiss the basic complaint for damages in Civil Case No. 99-10845.

In the herein assailed decision[8] dated April 25, 2003, the CA denied the petition and upheld the trial court. Partly says
the CA in its challenged issuance:
 98

xxx xxx xxx

It is clear that the complaint neither represents nor implies that the responsibility charged was the petitioner's subsidiary
liability under Art. 103, Revised Penal Code. As pointed out [by the trial court] in the Order of September 4, 2001, the
complaint does not even allege the basic elements for such a liability, like the conviction of the accused employee and his
insolvency. Truly enough, a civil action to enforce subsidiary liability separate and distinct from the criminal action is even
unnecessary.

xxx xxx xxx

Specifically, Civil Case No. 99-10845 exacts responsibility for fault or negligence under Art. 2176, Civil Code, which is
entirely separate and distinct from the civil liability arising from negligence under the Revised Penal Code. Verily,
therefore, the liability under Art. 2180, Civil Code, is direct and immediate, and not conditioned upon prior recourse
against the negligent employee or prior showing of the latter's insolvency. (Underscoring in the original.)
In time, the petitioners moved for a reconsideration but their motion was denied by the CA in its resolution[9] of July 10,
2003. Hence, the petitioners' present recourse on their submission that the appellate court committed reversible error in
upholding the trial court's denial of their motion to dismiss.

We DENY.

As the Court sees it, the sole issue for resolution is whether the spouses Vallejeras' cause of action in Civil Case No. 99-
10845 is founded on Article 103 of the Revised Penal Code, as maintained by the petitioners, or derived from Article
2180[10] of the Civil Code, as ruled by the two courts below.

It thus behooves us to examine the allegations of the complaint for damages in Civil Case No. 99-10845. That complaint
alleged, inter alia, as follows:

xxx xxx xxx

That defendant [LG Food Corporation] is the registered owner of a Ford Fiera Van with Plate No. NMS 881 and employer
sometime February of 1996 of one Vincent Norman Yeneza y Ferrer, a salesman of said corporation;

That sometime February 26, 1996 at around 2:00 P.M. at Rosario St., Bacolod City, the minor son of said plaintiffs [now
respondents], Charles Vallejera, 7 years old, was hit and bumped by above-described vehicle then driven by said
employee, Vincent Norman Yeneza y Ferrer;

That the mishap was due to the gross fault and negligence of defendant's employee, who drove said vehicle, recklessly,
negligently and at a high speed without regard to traffic condition and safety of other road users and likewise to the fault
and negligence of the owner employer, herein defendants LG Food Corporation who failed to exercise due diligence in the
selection and supervision of his employee, Vincent Norman Yeneza y Ferrer;

That as a result of said incident, plaintiffs' son suffered multiple body injuries which led to his untimely demise on that very
day;

That a criminal case was filed against the defendant's employee, docketed as Criminal Case No. 67787, (earlier filed as
Crim. Case No. 96-17570 before RTC) before MTC- Branch III, entitled "People v. Yeneza" for "Reckless Imprudence
resulting to Homicide," but the same was dismissed because pending litigation, then remorse-stricken [accused]
committed suicide;

xxx xxx xxx

 99

That the injuries and complications as well as the resultant death suffered by the late minor Charles Vallejera were due to
the negligence and imprudence of defendant's employee;

That defendant LG Foods Corporation is civilly liable for the negligence/imprudence of its employee since it failed to
exercise the necessary diligence required of a good father of the family in the selection and supervision of his employee,
Vincent Norman Yeneza y Ferrer which diligence if exercised, would have prevented said incident. (Bracketed words and
emphasis ours.)
Nothing in the foregoing allegations suggests, even remotely, that the herein petitioners are being made to account for
their subsidiary liability under Article 103 of the Revised Penal Code. As correctly pointed out by the trial court in its order
of September 4, 2001 denying the petitioners' Motion to Dismiss, the complaint did not even aver the basic elements for
the subsidiary liability of an employer under Article 103 of the Revised Penal Code, such as the prior conviction of the
driver in the criminal case filed against him nor his insolvency.

Admittedly, the complaint did not explicitly state that plaintiff Vallejeras were suing the defendant petitioners for damages
based on quasi-delict. Clear it is, however, from the allegations of the complaint that quasi-delict was their choice of
remedy against the petitioners. To stress, the plaintiff spouses alleged in their complaint gross fault and negligence on the
part of the driver and the failure of the petitioners, as employers, to exercise due diligence in the selection and supervision
of their employees. The spouses further alleged that the petitioners are civilly liable for the negligence/imprudence of their
driver since they failed to exercise the necessary diligence required of a good father of the family in the selection and
supervision of their employees, which diligence, if exercised, could have prevented the vehicular accident that resulted to
the death of their 7- year old son.

Section 2, Rule 2, of the 1997 Rules of Civil Procedure defines cause of action as the "act or omission by which a party
violates the right of another." Such act or omission gives rise to an obligation which may come from law, contracts, quasi
contracts, delicts or quasi- delicts.[11]

Corollarily, an act or omission causing damage to another may give rise to two separate civil liabilities on the part of the
offender, i.e., 1) civil liability ex delicto;[12] and 2) independent civil liabilities, such as those (a) not arising from an act or
omission complained of as felony (e.g., culpa contractual or obligations arising from law;[13] the intentional torts;[14] and
culpa aquiliana[15]); or (b) where the injured party is granted a right to file an action independent and distinct from the
criminal action. [16] Either of these two possible liabilities may be enforced against the offender.[17]

Stated otherwise, victims of negligence or their heirs have a choice between an action to enforce the civil liability arising
from culpa criminal under Article 100 of the Revised Penal Code, and an action for quasi-delict (culpa aquiliana) under
Articles 2176 to 2194 of the Civil Code. If, as here, the action chosen is for quasi-delict, the plaintiff may hold the employer
liable for the negligent act of its employee, subject to the employer's defense of exercise of the diligence of a good father
of the family. On the other hand, if the action chosen is for culpa criminal, the plaintiff can hold the employer subsidiarily
liable only upon proof of prior conviction of its employee.[18]

Article 1161[19] of the Civil Code provides that civil obligation arising from criminal offenses shall be governed by penal
laws subject to the provision of Article 2177[20] and of the pertinent provision of Chapter 2, Preliminary Title on Human
Relation, and of Title XVIII of this Book, regulating damages. Plainly, Article 2177 provides for the alternative remedies the
plaintiff may choose from in case the obligation has the possibility of arising indirectly from the delict/crime or directly from
quasi-delict/tort. The choice is with the plaintiff who makes known his cause of action in his initiatory pleading or
complaint,[21] and not with the defendant who can not ask for the dismissal of the plaintiff's cause of action or lack of it
based on the defendant's perception that the plaintiff should have opted to file a claim under Article 103 of the Revised
Penal Code.

Under Article 2180 of the Civil Code, the liability of the employer is direct or immediate. It is not conditioned upon prior
recourse against the negligent employee and a prior showing of insolvency of such employee.[22]

Here, the complaint sufficiently alleged that the death of the couple's minor son was caused by the negligent act of the
petitioners' driver; and that the petitioners themselves were civilly liable for the negligence of their driver for failing "to
exercise the necessary diligence required of a good father of the family in the selection and supervision of [their]
employee, the driver, which diligence, if exercised, would have prevented said accident."

Had the respondent spouses elected to sue the petitioners based on Article 103 of the Revised Penal Code, they would
have alleged that the guilt of the driver had been proven beyond reasonable doubt; that such accused driver is insolvent;
 100

that it is the subsidiary liability of the defendant petitioners as employers to pay for the damage done by their employee
(driver) based on the principle that every person criminally liable is also civilly liable.[23] Since there was no conviction in
the criminal case against the driver, precisely because death intervened prior to the termination of the criminal
proceedings, the spouses' recourse was, therefore, to sue the petitioners for their direct and primary liability based on
quasi-delict.

Besides, it is worthy to note that the petitioners, in their Answer with Compulsory Counter- Claim,[24] repeatedly made
mention of Article 2180 of the Civil Code and anchored their defense on their allegation that "they had exercised due
diligence in the selection and supervision of [their] employees." The Court views this defense as an admission that indeed
the petitioners acknowledged the private respondents' cause of action as one for quasi-delict under Article 2180 of the
Civil Code.

All told, Civil Case No. 99-10845 is a negligence suit brought under Article 2176 - Civil Code to recover damages primarily
from the petitioners as employers responsible for their negligent driver pursuant to Article 2180 of the Civil Code. The
obligation imposed by Article 2176 is demandable not only for one's own acts or omissions, but also for those of persons
for whom one is responsible. Thus, the employer is liable for damages caused by his employees and household helpers
acting within the scope of their assigned tasks, even though the former is not engaged in any business or industry.

Citing Maniago v. CA,[25] petitioner would argue that Civil Case No. 99-10845 should have been dismissed for failure of
the respondent spouses to make a reservation to institute a separate civil action for damages when the criminal case
against the driver was filed.

The argument is specious.

To start with, the petitioners' reliance on Maniago is obviously misplaced. There, the civil case was filed while the criminal
case against the employee was still pending. Here, the criminal case against the employee driver was prematurely
terminated due to his death. Precisely, Civil Case No. 99-10845 was filed by the respondent spouses because no remedy
can be obtained by them against the petitioners with the dismissal of the criminal case against their driver during the
pendency thereof.

The circumstance that no reservation to institute a separate civil action for damages was made when the criminal case
was filed is of no moment for the simple reason that the criminal case was dismissed without any pronouncement having
been made therein. In reality, therefor, it is as if there was no criminal case to speak of in the first place. And for the
petitioners to insist for the conviction of their driver as a condition sine qua non to hold them liable for damages is to ask
for the impossible.

IN VIEW WHEREOF, the instant petition is DENIED for lack of merit.

Costs against the petitioners.

SO ORDERED.
 101

G.R. No. 141910, August 06, 2002

FGU INSURANCE CORPORATION, PETITIONER, VS. G.P. SARMIENTO TRUCKING CORPORATION
AND LAMBERT M. EROLES, RESPONDENTS.

DECISION
VITUG, J.:

G.P. Sarmiento Trucking Corporation (GPS) undertook to deliver on 18 June 1994 thirty (30) units of Condura S.D. white
refrigerators aboard one of its Isuzu truck, driven by Lambert Eroles, from the plant site of Concepcion Industries, Inc.,
along South Superhighway in Alabang, Metro Manila, to the Central Luzon Appliances in Dagupan City. While the truck
was traversing the north diversion road along McArthur highway in Barangay Anupol, Bamban, Tarlac, it collided with an
unidentified truck, causing it to fall into a deep canal, resulting in damage to the cargoes.

FGU Insurance Corporation (FGU), an insurer of the shipment, paid to Concepcion Industries, Inc., the value of the
covered cargoes in the sum of P204,450.00. FGU, in turn, being the subrogee of the rights and interests of Concepcion
Industries, Inc., sought reimbursement of the amount it had paid to the latter from GPS. Since the trucking company failed
to heed the claim, FGU filed a complaint for damages and breach of contract of carriage against GPS and its driver
Lambert Eroles with the Regional Trial Court, Branch 66, of Makati City. In its answer, respondents asserted that GPS
was the exclusive hauler only of Concepcion Industries, Inc., since 1988, and it was not so engaged in business as a
common carrier. Respondents further claimed that the cause of damage was purely accidental.

The issues having thus been joined, FGU presented its evidence, establishing the extent of damage to the cargoes and
the amount it had paid to the assured. GPS, instead of submitting its evidence, filed with leave of court a motion to
dismiss the complaint by way of demurrer to evidence on the ground that petitioner had failed to prove that it was a
common carrier.

The trial court, in its order of 30 April 1996,[1] granted the motion to dismiss, explaining thusly:

Under Section 1 of Rule 131 of the Rules of Court, it is provided that Each party must prove his own affirmative
allegation, xxx.

In the instant case, plaintiff did not present any single evidence that would prove that defendant is a common carrier.

x x x x x x x x x

Accordingly, the application of the law on common carriers is not warranted and the presumption of fault or negligence on
the part of a common carrier in case of loss, damage or deterioration of goods during transport under 1735 of the Civil
Code is not availing.

Thus, the laws governing the contract between the owner of the cargo to whom the plaintiff was subrogated and the
owner of the vehicle which transports the cargo are the laws on obligation and contract of the Civil Code as well as the
law on quasi delicts.

Under the law on obligation and contract, negligence or fault is not presumed. The law on quasi delict provides for some
presumption of negligence but only upon the attendance of some circumstances. Thus, Article 2185 provides:

Art. 2185. Unless there is proof to the contrary, it is presumed that a person driving a motor vehicle has been negligent if
at the time of the mishap, he was violating any traffic regulation.

Evidence for the plaintiff shows no proof that defendant was violating any traffic regulation. Hence, the presumption of
negligence is not obtaining.

Considering that plaintiff failed to adduce evidence that defendant is a common carrier and defendants driver was the
one negligent, defendant cannot be made liable for the damages of the subject cargoes.[2]

The subsequent motion for reconsideration having been denied,[3] plaintiff interposed an appeal to the Court of Appeals,
contending that the trial court had erred (a) in holding that the appellee corporation was not a common carrier defined
under the law and existing jurisprudence; and (b) in dismissing the complaint on a demurrer to evidence.
 102

The Court of Appeals rejected the appeal of petitioner and ruled in favor of GPS. The appellate court, in its decision of 10
June 1999, [4] discoursed, among other things, that -

"x x x in order for the presumption of negligence provided for under the law governing common carrier (Article 1735, Civil
Code) to arise, the appellant must first prove that the appellee is a common carrier. Should the appellant fail to prove that
the appellee is a common carrier, the presumption would not arise; consequently, the appellant would have to prove that
the carrier was negligent.

"x x x x x x x x x

"Because it is the appellant who insists that the appellees can still be considered as a common carrier, despite its `limited
clientele, (assuming it was really a common carrier), it follows that it (appellant) has the burden of proving the same. It
(plaintiff-appellant) `must establish his case by a preponderance of evidence, which means that the evidence as a whole
adduced by one side is superior to that of the other. (Summa Insurance Corporation vs. Court of Appeals, 243 SCRA
175). This, unfortunately, the appellant failed to do -- hence, the dismissal of the plaintiffs complaint by the trial court is
justified.

"x x x x x x x x x

"Based on the foregoing disquisitions and considering the circumstances that the appellee trucking corporation has been
`its exclusive contractor, hauler since 1970, defendant has no choice but to comply with the directive of its principal, the
inevitable conclusion is that the appellee is a private carrier.

"x x x x x x x x x

"x x x the lower court correctly ruled that 'the application of the law on common carriers is not warranted and the
presumption of fault or negligence on the part of a common carrier in case of loss, damage or deterioration of good[s]
during transport under [article] 1735 of the Civil Code is not availing.' x x x.
"Finally, We advert to the long established rule that conclusions and findings of fact of a trial court are entitled to great
weight on appeal and should not be disturbed unless for strong and valid reasons."[5]

Petitioner's motion for reconsideration was likewise denied;[6] hence, the instant petition,[7] raising the following issues:

WHETHER RESPONDENT GPS MAY BE CONSIDERED AS A COMMON CARRIER AS DEFINED UNDER THE LAW
AND EXISTING JURISPRUDENCE.

II

WHETHER RESPONDENT GPS, EITHER AS A COMMON CARRIER OR A PRIVATE CARRIER, MAY BE PRESUMED
TO HAVE BEEN NEGLIGENT WHEN THE GOODS IT UNDERTOOK TO TRANSPORT SAFELY WERE
SUBSEQUENTLY DAMAGED WHILE IN ITS PROTECTIVE CUSTODY AND POSSESSION.

III

WHETHER THE DOCTRINE OF RES IPSA LOQUITUR IS APPLICABLE IN THE INSTANT CASE.

On the first issue, the Court finds the conclusion of the trial court and the Court of Appeals to be amply justified. GPS,
being an exclusive contractor and hauler of Concepcion Industries, Inc., rendering or offering its services to no other
individual or entity, cannot be considered a common carrier. Common carriers are persons, corporations, firms or
associations engaged in the business of carrying or transporting passengers or goods or both, by land, water, or air, for
hire or compensation, offering their services to the public,[8] whether to the public in general or to a limited clientele in
particular, but never on an exclusive basis.[9] The true test of a common carrier is the carriage of passengers or goods,
providing space for those who opt to avail themselves of its transportation service for a fee.[10] Given accepted
standards, GPS scarcely falls within the term common carrier.

The above conclusion nothwithstanding, GPS cannot escape from liability.

 103

In culpa contractual, upon which the action of petitioner rests as being the subrogee of Concepcion Industries, Inc., the
mere proof of the existence of the contract and the failure of its compliance justify, prima facie, a corresponding right of
relief.[11] The law, recognizing the obligatory force of contracts,[12] will not permit a party to be set free from liability for
any kind of misperformance of the contractual undertaking or a contravention of the tenor thereof.[13] A breach upon the
contract confers upon the injured party a valid cause for recovering that which may have been lost or suffered. The
remedy serves to preserve the interests of the promisee that may include his expectation interest, which is his interest in
having the benefit of his bargain by being put in as good a position as he would have been in had the contract been
performed, or his reliance interest, which is his interest in being reimbursed for loss caused by reliance on the contract
by being put in as good a position as he would have been in had the contract not been made; or his restitution interest,
which is his interest in having restored to him any benefit that he has conferred on the other party.[14] Indeed,
agreements can accomplish little, either for their makers or for society, unless they are made the basis for action.[15] The
effect of every infraction is to create a new duty, that is, to make recompense to the one who has been injured by the
failure of another to observe his contractual obligation[16] unless he can show extenuating circumstances, like proof of his
exercise of due diligence (normally that of the diligence of a good father of a family or, exceptionally by stipulation or by
law such as in the case of common carriers, that of extraordinary diligence) or of the attendance of fortuitous event, to
excuse him from his ensuing liability.

Respondent trucking corporation recognizes the existence of a contract of carriage between it and petitioners assured,
and admits that the cargoes it has assumed to deliver have been lost or damaged while in its custody. In such a situation,
a default on, or failure of compliance with, the obligation in this case, the delivery of the goods in its custody to the place
of destination - gives rise to a presumption of lack of care and corresponding liability on the part of the contractual obligor
the burden being on him to establish otherwise. GPS has failed to do so.

Respondent driver, on the other hand, without concrete proof of his negligence or fault, may not himself be ordered to pay
petitioner. The driver, not being a party to the contract of carriage between petitioners principal and defendant, may not
be held liable under the agreement. A contract can only bind the parties who have entered into it or their successors who
have assumed their personality or their juridical position.[17] Consonantly with the axiom res inter alios acta aliis neque
nocet prodest, such contract can neither favor nor prejudice a third person. Petitioners civil action against the driver can
only be based on culpa aquiliana, which, unlike culpa contractual, would require the claimant for damages to prove
negligence or fault on the part of the defendant.[18]

A word in passing. Res ipsa loquitur, a doctrine being invoked by petitioner, holds a defendant liable where the thing
which caused the injury complained of is shown to be under the latters management and the accident is such that, in the
ordinary course of things, cannot be expected to happen if those who have its management or control use proper care. It
affords reasonable evidence, in the absence of explanation by the defendant, that the accident arose from want of
care.[19] It is not a rule of substantive law and, as such, it does not create an independent ground of liability. Instead, it is
regarded as a mode of proof, or a mere procedural convenience since it furnishes a substitute for, and relieves the plaintiff
of, the burden of producing specific proof of negligence. The maxim simply places on the defendant the burden of going
forward with the proof.[20] Resort to the doctrine, however, may be allowed only when (a) the event is of a kind which
does not ordinarily occur in the absence of negligence; (b) other responsible causes, including the conduct of the plaintiff
and third persons, are sufficiently eliminated by the evidence; and (c) the indicated negligence is within the scope of the
defendant's duty to the plaintiff.[21] Thus, it is not applicable when an unexplained accident may be attributable to one of
several causes, for some of which the defendant could not be responsible.[22]

Res ipsa loquitur generally finds relevance whether or not a contractual relationship exists between the plaintiff and the
defendant, for the inference of negligence arises from the circumstances and nature of the occurrence and not from the
nature of the relation of the parties.[23] Nevertheless, the requirement that responsible causes other than those due to
defendants conduct must first be eliminated, for the doctrine to apply, should be understood as being confined only to
cases of pure (non-contractual) tort since obviously the presumption of negligence in culpa contractual, as previously so
pointed out, immediately attaches by a failure of the covenant or its tenor. In the case of the truck driver, whose liability in
a civil action is predicated on culpa acquiliana, while he admittedly can be said to have been in control and management
of the vehicle which figured in the accident, it is not equally shown, however, that the accident could have been
exclusively due to his negligence, a matter that can allow, forthwith, res ipsa loquitur to work against him.

If a demurrer to evidence is granted but on appeal the order of dismissal is reversed, the movant shall be deemed to have
waived the right to present evidence.[24] Thus, respondent corporation may no longer offer proof to establish that it has
exercised due care in transporting the cargoes of the assured so as to still warrant a remand of the case to the trial court.

WHEREFORE, the order, dated 30 April 1996, of the Regional Trial Court, Branch 66, of Makati City, and the decision,
dated 10 June 1999, of the Court of Appeals, are AFFIRMED only insofar as respondent Lambert M. Eroles is concerned,
 104

but said assailed order of the trial court and decision of the appellate court are REVERSED as regards G.P. Sarmiento
Trucking Corporation which, instead, is hereby ordered to pay FGU Insurance Corporation the value of the damaged and
lost cargoes in the amount of P204,450.00. No costs.

SO ORDERED.
 105

G.R. No. 122039, May 31, 2000

VICENTE CALALAS, PETITIONER, VS. COURT OF APPEALS, ELIZA JUJEURCHE SUNGA AND
FRANCISCO SALVA, RESPONDENTS.

DECISION
MENDOZA, J.:

This is a petition for review on certiorari of the decision[1] of the Court of Appeals, dated March 31, 1991, reversing the
contrary decision of the Regional Trial Court, Branch 36, Dumaguete City, and awarding damages instead to private
respondent Eliza Jujeurche Sunga as plaintiff in an action for breach of contract of carriage.

The facts, as found by the Court of Appeals, are as follows:

At 10 oclock in the morning of August 23, 1989, private respondent Eliza Jujeurche G. Sunga, then a college freshman
majoring in Physical Education at the Siliman University, took a passenger jeepney owned and operated by petitioner
Vicente Calalas. As the jeepney was filled to capacity of about 24 passengers, Sunga was given by the conductor an
"extension seat," a wooden stool at the back of the door at the rear end of the vehicle.

On the way to Poblacion Sibulan, Negros Occidental, the jeepney stopped to let a passenger off. As she was seated at
the rear of the vehicle, Sunga gave way to the outgoing passenger. Just as she was doing so, an Isuzu truck driven by
Iglecerio Verena and owned by Francisco Salva bumped the left rear portion of the jeepney. As a result, Sunga was
injured. She sustained a fracture of the "distal third of the left tibia-fibula with severe necrosis of the underlying skin."
Closed reduction of the fracture, long leg circular casting, and case wedging were done under sedation. Her confinement
in the hospital lasted from August 23 to September 7, 1989. Her attending physician, Dr. Danilo V. Oligario, an orthopedic
surgeon, certified she would remain on a cast for a period of three months and would have to ambulate in crutches during
said period.

On October 9, 1989, Sunga filed a complaint for damages against Calalas, alleging violation of the contract of carriage by
the former in failing to exercise the diligence required of him as a common carrier. Calalas, on the other hand, filed a third-
party complaint against Francisco Salva, the owner of the Isuzu truck.

The lower court rendered judgment against Salva as third-party defendant and absolved Calalas of liability, holding that it
was the driver of the Isuzu truck who was responsible for the accident. It took cognizance of another case (Civil Case No.
3490), filed by Calalas against Salva and Verena, for quasi-delict, in which Branch 37 of the same court held Salva and
his driver Verena jointly liable to Calalas for the damage to his jeepney.

On appeal to the Court of Appeals, the ruling of the lower court was reversed on the ground that Sungas cause of action
was based on a contract of carriage, not quasi-delict, and that the common carrier failed to exercise the diligence required
under the Civil Code. The appellate court dismissed the third-party complaint against Salva and adjudged Calalas liable
for damages to Sunga. The dispositive portion of its decision reads:

WHEREFORE, the decision appealed from is hereby REVERSED and SET ASIDE, and another one is entered ordering
defendant-appellee Vicente Calalas to pay plaintiff-appellant:

(1) P50,000.00 as actual and compensatory damages;

(2) P50,000.00 as moral damages;
(3) P10,000.00 as attorneys fees; and
(4) P1,000.00 as expenses of litigation; and
(5) to pay the costs.

SO ORDERED.

Hence, this petition. Petitioner contends that the ruling in Civil Case No. 3490 that the negligence of Verena was the
proximate cause of the accident negates his liability and that to rule otherwise would be to make the common carrier an
insurer of the safety of its passengers. He contends that the bumping of the jeepney by the truck owned by Salva was a
caso fortuito. Petitioner further assails the award of moral damages to Sunga on the ground that it is not supported by
evidence.
 106

The petition has no merit.

The argument that Sunga is bound by the ruling in Civil Case No. 3490 finding the driver and the owner of the truck liable
for quasi-delict ignores the fact that she was never a party to that case and, therefore, the principle of res judicata does
not apply.

Nor are the issues in Civil Case No. 3490 and in the present case the same. The issue in Civil Case No. 3490 was
whether Salva and his driver Verena were liable for quasi-delict for the damage caused to petitioners jeepney. On the
other hand, the issue in this case is whether petitioner is liable on his contract of carriage. The first, quasi-delict, also
known as culpa aquiliana or culpa extra contractual, has as its source the negligence of the tortfeasor. The second,
breach of contract or culpa contractual, is premised upon the negligence in the performance of a contractual obligation.

Consequently, in quasi-delict, the negligence or fault should be clearly established because it is the basis of the action,
whereas in breach of contract, the action can be prosecuted merely by proving the existence of the contract and the fact
that the obligor, in this case the common carrier, failed to transport his passenger safely to his destination.[2] In case of
death or injuries to passengers, Art. 1756 of the Civil Code provides that common carriers are presumed to have been at
fault or to have acted negligently unless they prove that they observed extraordinary diligence as defined in Arts. 1733
and 1755 of the Code. This provision necessarily shifts to the common carrier the burden of proof.

There is, thus, no basis for the contention that the ruling in Civil Case No. 3490, finding Salva and his driver Verena liable
for the damage to petitioners jeepney, should be binding on Sunga. It is immaterial that the proximate cause of the
collision between the jeepney and the truck was the negligence of the truck driver. The doctrine of proximate cause is
applicable only in actions for quasi-delict, not in actions involving breach of contract. The doctrine is a device for imputing
liability to a person where there is no relation between him and another party. In such a case, the obligation is created by
law itself. But, where there is a pre-existing contractual relation between the parties, it is the parties themselves who
create the obligation, and the function of the law is merely to regulate the relation thus created. Insofar as contracts of
carriage are concerned, some aspects regulated by the Civil Code are those respecting the diligence required of common
carriers with regard to the safety of passengers as well as the presumption of negligence in cases of death or injury to
passengers. It provides:

Art. 1733. Common carriers, from the nature of their business and for reasons of public policy, are bound to observe
extraordinary diligence in the vigilance over the goods and for the safety of the passengers transported by them,
according to all the circumstances of each case.

Such extraordinary diligence in the vigilance over the goods is further expressed in articles 1734, 1735, and 1746, Nos.
5,6, and 7, while the extraordinary diligence for the safety of the passengers is further set forth in articles 1755 and 1756.

Art. 1755. A common carrier is bound to carry the passengers safely as far as human care and foresight can provide,
using the utmost diligence of very cautious persons, with due regard for all the circumstances.

Art. 1756. In case of death of or injuries to passengers, common carriers are presumed to have been at fault or to have
acted negligently, unless they prove that they observed extraordinary diligence as prescribed by articles 1733 and 1755.

In the case at bar, upon the happening of the accident, the presumption of negligence at once arose, and it became the
duty of petitioner to prove that he had to observe extraordinary diligence in the care of his passengers.

Now, did the driver of jeepney carry Sunga "safely as far as human care and foresight could provide, using the utmost
diligence of very cautious persons, with due regard for all the circumstances" as required by Art. 1755? We do not think
so. Several factors militate against petitioners contention.

First, as found by the Court of Appeals, the jeepney was not properly parked, its rear portion being exposed about two
meters from the broad shoulders of the highway, and facing the middle of the highway in a diagonal angle. This is a
violation of the R.A. No. 4136, as amended, or the Land Transportation and Traffic Code, which provides:

Sec. 54. Obstruction of Traffic. - No person shall drive his motor vehicle in such a manner as to obstruct or impede the
passage of any vehicle, nor, while discharging or taking on passengers or loading or unloading freight, obstruct the free
passage of other vehicles on the highway.

Second, it is undisputed that petitioners driver took in more passengers than the allowed seating capacity of the jeepney,
a violation of 32(a) of the same law. It provides:
 107

Exceeding registered capacity. - No person operating any motor vehicle shall allow more passengers or more freight or
cargo in his vehicle than its registered capacity.

The fact that Sunga was seated in an "extension seat" placed her in a peril greater than that to which the other
passengers were exposed. Therefore, not only was petitioner unable to overcome the presumption of negligence imposed
on him for the injury sustained by Sunga, but also, the evidence shows he was actually negligent in transporting
passengers.

We find it hard to give serious thought to petitioners contention that Sungas taking an "extension seat" amounted to an
implied assumption of risk. It is akin to arguing that the injuries to the many victims of the tragedies in our seas should not
be compensated merely because those passengers assumed a greater risk of drowning by boarding an overloaded ferry.
This is also true of petitioners contention that the jeepney being bumped while it was improperly parked constitutes caso
fortuito. A caso fortuito is an event which could not be foreseen, or which, though foreseen, was inevitable.[3] This
requires that the following requirements be present: (a) the cause of the breach is independent of the debtors will; (b) the
event is unforeseeable or unavoidable; (c) the event is such as to render it impossible for the debtor to fulfill his obligation
in a normal manner, and (d) the debtor did not take part in causing the injury to the creditor.[4] Petitioner should have
foreseen the danger of parking his jeepney with its body protruding two meters into the highway.

Finally, petitioner challenges the award of moral damages alleging that it is excessive and without basis in law. We find
this contention well taken.

In awarding moral damages, the Court of Appeals stated:

Plaintiff-appellant at the time of the accident was a first-year college student in that school year 1989-1990 at the Silliman
University, majoring in Physical Education. Because of the injury, she was not able to enroll in the second semester of
that school year. She testified that she had no more intention of continuing with her schooling, because she could not walk
and decided not to pursue her degree, major in Physical Education "because of my leg which has a defect already."

Plaintiff-appellant likewise testified that even while she was under confinement, she cried in pain because of her injured
left foot. As a result of her injury, the Orthopedic Surgeon also certified that she has "residual bowing of the fracture side."
She likewise decided not to further pursue Physical Education as her major subject, because "my left leg x x x has a
defect already."

Those are her physical pains and moral sufferings, the inevitable bedfellows of the injuries that she suffered. Under Article
2219 of the Civil Code, she is entitled to recover moral damages in the sum of P50,000.00, which is fair, just and
reasonable.

As a general rule, moral damages are not recoverable in actions for damages predicated on a breach of contract for it is
not one of the items enumerated under Art. 2219 of the Civil Code.[5] As an exception, such damages are recoverable:
(1) in cases in which the mishap results in the death of a passenger, as provided in Art. 1764, in relation to Art. 2206(3) of
the Civil Code; and (2) in the cases in which the carrier is guilty of fraud or bad faith, as provided in Art. 2220.[6]

In this case, there is no legal basis for awarding moral damages since there was no factual finding by the appellate court
that petitioner acted in bad faith in the performance of the contract of carriage. Sungas contention that petitioners
admission in open court that the driver of the jeepney failed to assist her in going to a nearby hospital cannot be construed
as an admission of bad faith. The fact that it was the driver of the Isuzu truck who took her to the hospital does not imply
that petitioner was utterly indifferent to the plight of his injured passenger. If at all, it is merely implied recognition by
Verena that he was the one at fault for the accident.

WHEREFORE, the decision of the Court of Appeals, dated March 31, 1995, and its resolution, dated September 11, 1995,
are AFFIRMED, with the MODIFICATION that the award of moral damages is DELETED.

SO ORDERED.
 108

G.R. No. L-12163 March 4, 1959

PAZ FORES, petitioner, vs. IRENEO MIRANDA, respondent.

Alberto O. Villaraza for petitioner.

Almazan and Ereneta for respondent.

REYES, J.B.L., J.:

Defendant-petitioner Paz Fores brings this petition for review of the decision of the Court of Appeals (C.A. Case No. 1437-
R) awarding to the plaintiff-respondent Ireneo Miranda the sums of P5,000 by way of actual damages and counsel fees,
and P10,000 as moral damages, with costs.

Respondent was one of the passengers on a jeepney driven by Eugenio Luga. While the vehicle was descending the Sta.
Mesa bridge at an excessive rate of speed, the driver lost control thereof, causing it to swerve and to his the bridge wall.
The accident occurred on the morning of March 22, 1953. Five of the passengers were injured, including the respondent
who suffered a fracture of the upper right humerus. He was taken to the National Orthopedic Hospital for treatment, and
later was subjected to a series of operations; the first on May 23, 1953, when wire loops were wound around the broken
bones and screwed into place; a second, effected to insert a metal splint, and a third one to remove such splint. At the
time of the trial, it appears that respondent had not yet recovered the use of his right arm.

The driver was charged with serious physical injuries through reckless imprudence, and upon interposing a plea of guilty
was sentenced accordingly.

The contention that the evidence did not sufficiently establish the identity of the vehicle as the belonging to the petitioner
was rejected by the appellate court which found, among other things, that is carried plate No. TPU-1163, SERIES OF
1952, Quezon City, registered in the name of Paz Fores, (appellant herein) and that the vehicle even had the name of
"Doa Paz" painted below its wind shield. No evidence to the contrary was introduced by the petitioner, who relied on an
attack upon the credibility of the two policemen who went to the scene of the incident.

A point to be further remarked is petitioner's contention that on March 21, 1953, or one day before the accident happened,
she allegedly sold the passenger jeep that was involved therein to a certain Carmen Sackerman.

The initial problem raised by the petitioner in this appeal may be formulated thus "Is the approval of the Public Service
Commission necessary for the sale of a public service vehicle even without conveying therewith the authority to operate
the same?" Assuming the dubious sale to be a fact, the court of Appeals answered the query in the affirmative. The ruling
should be upheld.

Section 20 of the Public Service Act (Commonwealth Act No. 146) provides:

Sec. 20. Subject to established limitations and exceptions and saving provisions to the contrary, it shall be unlawful for
any public service or for the owner, lessee or operator thereof, without the previous approval and authority of the
Commission previously had

xxx xxx xxx

(g) To sell, alienate, mortgage, encumber or lease its property, franchises, certificates, privileges, or rights, or any part
thereof; or merge or consolidate its property, franchises, privileges or rights, or any part thereof, with those of any other
public service. The approval herein required shall be given, after notice to the public and after hearing the persons
interested at a public hearing, if it be shown that there are just and reasonable grounds for making the mortgage or
encumbrance, for liabilities of more than one year maturity, or the sale, alienation, lease, merger, or consolidation to be
approved and that the same are not detrimental to the public interest, and in case of a sale, the date on which the same is
to be consummated shall be fixed in the order of approval: Provided, however, That nothing herein contained shall be
construed to prevent the transaction from being negotiated or completed before its approval or to prevent the sale,
alienation, or lease by any public service of any of its property in the ordinary course of its business.

Interpreting the effects of this particular provision of law, we have held in the recent cases of Montoya vs. Ignacio, * 50
Off. Gaz. No. 1, p. 108; Timbol vs. Osias, et al., G. R. No. L-7547, April 30, 1955, and Medina vs. Cresencia, 99 Phil.,
506; 52 Off. Gaz. No. 10, p. 4606, that a transfer contemplated by the law, if made without the requisite approval of the
Public Service Commission, is not effective and binding in so far as the responsibility of the grantee under the franchise in
relation to the public is concerned. Petitioner assails, however, the applicability of these rulings to the instant case,
 109

contending that in those cases, the operator did not convey, by lease or by sale, the vehicle independently of his rights
under the franchise. This line of reasoning does not find support in the law. The provisions of the statute are clear and
prohibit the sale, alienation, lease, or encumbrance of the property, franchise, certificate, privileges or rights, or any part
thereof of the owner or operator of the public service Commission. The law was designed primarily for the protection of
the public interest; and until the approval of the public Service Commission is obtained the vehicle is, in contemplation of
law, still under the service of the owner or operator standing in the records of the Commission which the public has a right
to rely upon.

The proviso contained in the aforequoted law, to the effect that nothing therein shall be construed "to prevent the
transaction from being negotiated or complete before its approval", means only that the sale without the required approval
is still valid and binding between the parties (Montoya vs. Ignacio, supra). The phrase "in the ordinary course of its
business" found in the other proviso" or to prevent the sale, alienation, or lease by any public service of any of its
property". As correctly observed by the lower court, could not have been intended to include the sale of the vehicle itself,
but at most may refer only to such property that may be conceivably disposed or by the carrier in the ordinary course of its
business, like junked equipment or spare parts.

The case of Indalecio de Torres vs. Vicente Ona (63 Phil., 594, 597) is enlightening; and there, it was held:

Under the law, the Public Service Commission has not only general supervision and regulation of, but also full jurisdiction
and control over all public utilities including the property, equipment and facilities used, and the property rights and
franchise enjoyed by every individual and company engaged i the performance of a public service in the sense this phrase
is used in the Public Service Act or Act No. 3108). By virtue of the provisions of said Act, motor vehicles used in the
performance of a service, as the transportation of freight from one point to another, have to this date been considered
and they cannot but be so considered-public service property; and, by reason of its own nature, a TH truck, which means
that the operator thereof places it at the disposal of anybody who is willing to pay a rental of its use, when he desires to
transfer or carry his effects, merchandise or any other cargo from one place to another, is necessarily a public service
property. (Emphasis supplied)

Of course, this court has held in the case of Bachrach Motor co. vs. Zamboanga Transportation Co., 52 Phil., 244, that
there may be a nunc pro tunc authorization which has the effect of having the approval retroact to the date of the transfer;
but such outcome cannot prejudice rights intervening in the meantime. It appears that no such approval was given by the
Commission before the accident occurred.

The P10,000 actual damages awarded by the Court of First Instance of Manila were reduced by the Court of Appeals to
only P2,000, on the ground that a review of the records failed to disclose a sufficient basis for the trial court's appraisal,
since the only evidence presented on this point consisted of respondent's bare statement that his expenses and loss of
income amounted to P20,000. On the other hand, "it cannot be denied," the lower court said, "that appellee (respondent)
did incur expenses"' It is well to note further that respondent was a painter by profession and a professor of Fine Arts, so
that the amount of P2,000 awarded cannot be said to be excessive (see Arts. 2224 and 2225, Civil Code of the
Philippines). The attorney's fees in the sum of P3,000 also awarded to the respondent are assailed on the ground that the
Court of First Instance did not provided for the same, and since no appeal was interposed by said respondent, it was
allegedly error for the Court of Appeals to award them motu proprio. Petitioner fails to note that attorney's fees are
included in the concept of actual damages under the Civil Code and may be awarded whenever the court deems it is just
and equitable (Art. 2208, Civil Code of the Philippines). We see no reason to alter these awards.

Anent the moral damages ordered to be paid to the respondent, the same must be discarded. We have repeatedly ruled
(Cachero vs. Manila Yellow Taxicab Co. Inc., 101 Phil., 523; 54 Off. Gaz., [26], 6599; Necesito, et al vs. Paras, 104 Phil.,
75; 56 Off. Gaz., [23] 4023, that moral damages are not recoverable in damage actions predicted on a breach of the
contract of transportation, in view of Articles 2219 and 2220 of the new Civil Code, which provide as follows:

Art. 2219. Moral damages may be recovered in the following and analogous cases:

(1) A criminal offense resulting in physical injuries;

(2) Quasi-delicts causing physical injuries;

xxx xxx xxx

 110

Art. 2220. Willful injury to property may be a legal ground for awarding moral damages if the court should find that, under
circumstances, such damages are justify due. The same rule applies to breaches of contract where the defendant acted
fraudulently or in bad faith.

By contrasting the provisions of these two article it immediately becomes apparent that:

(a) In case of breach of contract (including one of transportation) proof of bad faith or fraud (dolus), i.e., wanton or
deliberately injurious conduct, is essential to justify an award of moral damages; and

(b) That a breach of contract can not be considered included in the descriptive term "analogous cases" used in Art. 2219;
not only because Art. 2220 specifically provides for the damages that are caused by contractual breach, but because the
definition of quasi-delict in Art. 2176 of the Code expressly excludes the cases where there is a "preexisting contractual
relation between the parties."

Art. 2176. Whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay for the
damage dome. Such fault or negligence, if there is no pre-existing contractual relation between the parties, is called a
quasi-delict and is governed by the provisions of this Chapter.

The exception to the basic rule of damages now under consideration is a mishap resulting in the death of a passenger, in
which case Article 1764 makes the common carrier expressly subject to the rule of Art. 2206, that entitles the deceased
passenger to "demand moral damages for mental anguish by reason of the death of the deceased" (Necesito vs. Paras,
104 Phil., 84, Resolution on motion to reconsider, September 11, 1958). But the exceptional rule of Art. 1764 makes it all
the more evident that where the injured passenger does not die, moral damages are not recoverable unless it is proved
that the carrier was guilty of malice or bad faith. We think it is clear that the mere carelessness of the carrier's driver does
not per se constitute of justify an inference of malice or bad faith on the part of the carrier; and in the case at bar there is
no other evidence of such malice to support the award of moral damages by the Court of Appeals. To award moral
damages for breach of contract, therefore, without proof of bad faith or malice on the part of the defendant, as required by
Art. 220, would be to violate the clear provisions of the law, and constitute unwarranted judicial legislation.

The Court of Appeals has invoked our rulings in Castro vs. Acro Taxicab Co., G.R. No. 49155, December 14, 1948 and
Layda vs. Court of Appeals, 90 Phil., 724; but these doctrines were predicated upon our former law of damages, before
judicial discretion in fixing them became limited by the express provisions of the new Civil Code (previously quoted).
Hence, the aforesaid rulings are now inapplicable.

Upon the other hand, the advantageous position of a party suing a carrier for breach of the contract of transportations
explains, to some extent, the limitations imposed by the new Code on the amount of the recovery. The action for breach of
contract imposes on the defendant carrier a presumption of liability upon mere proof of injury to the passenger; that latter
is relieved from the duty to established the fault of the carrier, or of his employees, and the burden is placed on the carrier
to prove that it was due to an unforseen event or to force majeure (Cangco vs. Manila Railroad Co., 38 Phil., 768, 777).
Moreover, the carrier, unlike in suits for quasi-delict, may not escape liability by proving that it has exercised due diligence
in the selection and supervision of its employees (Art. 1759, new civil code; Cangco vs. Manila Railroad Co., supra; Prado
vs. Manila Electric Co., 51 Phil., 900).

The difference in conditions, defenses and proof, as well as the codal concept of quasi-delict as essentially extra
contractual negligence, compel us to differentiate between action ex contractu, and actions quasi ex delicto, and prevent
us from viewing the action for breach of contract as simultaneously embodying an action on tort. Neither can this action be
taken as one to enforce on employee's liability under Art. 103 of the Revised Penal Code, since the responsibility is not
alleged to be subsidiary, nor is there on record any averment or proof that the driver of appellant was insolvent. In fact, he
is not even made a party to the suit.

It is also suggested that a carrier's violation of its engagement to safety transport the passenger involves a breach of the
passenger's confidence, and therefore should be regarded as a breach of contract in bad faith, justifying recovery of moral
damages under Art. 2220. This theory is untenable, for under it the carrier would always be deemed in bad faith, in every
case its obligation to the passenger is infringed, and it would be never accountable for simple negligence; while under the
law (Art. 1756). the presumption is that common carriers acted negligently (and not maliciously), and Art. 1762 speaks of
negligence of the common carrier.

ART. 1756. In case of death of or injuries to passengers, common carriers are presumed to have been at fault or to have
acted negligently, unless they prove that they observed extraordinary diligence as prescribed in article 1733 and 1755.
 111

ART. 1762. The contributory negligence of the passenger does not bar recovery of damages for his death or injuries, if the
proximate cause thereof is the negligence of the common carrier, but the amount of damages shall be equitably reduced.

The distinction between fraud, bad faith or malice in the sense of deliberate or wanton wrong doing and negligence (as
mere carelessness) is too fundamental in our law to be ignored (Arts. 1170-1172); their consequences being clearly
differentiated by the Code.

ART. 2201. In contracts and quasi-contracts, the damages for which the obligor who acted in good faith is liable shall be
those that are the natural and probable consequences of the breach of the obligation, and which the parties have
foreseen or could have reasonably foreseen at the time the obligation was constituted.

In case of fraud, bad faith, malice or wanton attitude, the obligor shall be responsible for all damages which may be
reasonably attributed to the non-performance of the obligation.

It is to be presumed, in the absence of statutory provision to the contrary, that this difference was in the mind of the
lawmakers when in Art. 2220 they limited recovery of moral damages to breaches of contract in bad faith. It is true that
negligence may be occasionally so gross as to amount to malice; but that fact must be shown in evidence, and a carrier's
bad faith is not to be lightly inferred from a mere finding that the contract was breached through negligence of the carrier's
employees.

In view of the foregoing considerations, the decision of the Court of Appeals is modified by eliminating the award of
P5,000.00 by way of moral damages. (Court of Appeals Resolution of May 5, 1957). In all other respects, the judgment is
affirmed. No costs in this instance. So ordered.

Paras, C.J., Bengzon, Padilla, Montemayor, Reyes, A., Bautista Angelo, Labrador, Concepcion and Endencia, JJ.,
concur.
 112

G.R. No. 138569, September 11, 2003

THE CONSOLIDATED BANK AND TRUST CORPORATION, PETITIONER, VS. COURT OF APPEALS AND
L.C. DIAZ AND COMPANY, CPA'S, RESPONDENTS.

DECISION
CARPIO, J.:

The Case

Before us is a petition for review of the Decision[1] of the Court of Appeals dated 27 October 1998 and its Resolution
dated 11 May 1999. The assailed decision reversed the Decision[2] of the Regional Trial Court of Manila, Branch 8,
absolving petitioner Consolidated Bank and Trust Corporation, now known as Solidbank Corporation ("Solidbank"), of any
liability. The questioned resolution of the appellate court denied the motion for reconsideration of Solidbank but modified
the decision by deleting the award of exemplary damages, attorney's fees, expenses of litigation and cost of suit.

The Facts

Solidbank is a domestic banking corporation organized and existing under Philippine laws. Private respondent L.C. Diaz
and Company, CPA's ("L.C. Diaz"), is a professional partnership engaged in the practice of accounting.

Sometime in March 1976, L.C. Diaz opened a savings account with Solidbank, designated as Savings Account No. S/A
200-16872-6.

On 14 August 1991, L.C. Diaz through its cashier, Mercedes Macaraya ("Macaraya"), filled up a savings (cash) deposit
slip for P990 and a savings (checks) deposit slip for P50. Macaraya instructed the messenger of L.C. Diaz, Ismael
Calapre ("Calapre"), to deposit the money with Solidbank. Macaraya also gave Calapre the Solidbank passbook.

Calapre went to Solidbank and presented to Teller No. 6 the two deposit slips and the passbook. The teller
acknowledged receipt of the deposit by returning to Calapre the duplicate copies of the two deposit slips. Teller No. 6
stamped the deposit slips with the words "DUPLICATE" and "SAVING TELLER 6 SOLIDBANK HEAD OFFICE." Since the
transaction took time and Calapre had to make another deposit for L.C. Diaz with Allied Bank, he left the passbook with
Solidbank. Calapre then went to Allied Bank. When Calapre returned to Solidbank to retrieve the passbook, Teller No. 6
informed him that "somebody got the passbook."[3] Calapre went back to L.C. Diaz and reported the incident to
Macaraya.

Macaraya immediately prepared a deposit slip in duplicate copies with a check of P200,000. Macaraya, together with
Calapre, went to Solidbank and presented to Teller No. 6 the deposit slip and check. The teller stamped the words
"DUPLICATE" and "SAVING TELLER 6 SOLIDBANK HEAD OFFICE" on the duplicate copy of the deposit slip. When
Macaraya asked for the passbook, Teller No. 6 told Macaraya that someone got the passbook but she could not
remember to whom she gave the passbook. When Macaraya asked Teller No. 6 if Calapre got the passbook, Teller No. 6
answered that someone shorter than Calapre got the passbook. Calapre was then standing beside Macaraya.

Teller No. 6 handed to Macaraya a deposit slip dated 14 August 1991 for the deposit of a check for P90,000 drawn on
Philippine Banking Corporation ("PBC"). This PBC check of L.C. Diaz was a check that it had "long closed."[4] PBC
subsequently dishonored the check because of insufficient funds and because the signature in the check differed from
PBC's specimen signature. Failing to get back the passbook, Macaraya went back to her office and reported the matter to
the Personnel Manager of L.C. Diaz, Emmanuel Alvarez.

The following day, 15 August 1991, L.C. Diaz through its Chief Executive Officer, Luis C. Diaz ("Diaz"), called up
Solidbank to stop any transaction using the same passbook until L.C. Diaz could open a new account.[5] On the same
day, Diaz formally wrote Solidbank to make the same request. It was also on the same day that L.C. Diaz learned of the
unauthorized withdrawal the day before, 14 August 1991, of P300,000 from its savings account. The withdrawal slip for
the P300,000 bore the signatures of the authorized signatories of L.C. Diaz, namely Diaz and Rustico L. Murillo. The
signatories, however, denied signing the withdrawal slip. A certain Noel Tamayo received the P300,000.
 113

In an Information[6] dated 5 September 1991, L.C. Diaz charged its messenger, Emerano Ilagan ("Ilagan") and one
Roscon Verdazola with Estafa through Falsification of Commercial Document. The Regional Trial Court of Manila
dismissed the criminal case after the City Prosecutor filed a Motion to Dismiss on 4 August 1992.

On 24 August 1992, L.C. Diaz through its counsel demanded from Solidbank the return of its money. Solidbank refused.

On 25 August 1992, L.C. Diaz filed a Complaint[7] for Recovery of a Sum of Money against Solidbank with the Regional
Trial Court of Manila, Branch 8. After trial, the trial court rendered on 28 December 1994 a decision absolving Solidbank
and dismissing the complaint.

L.C. Diaz then appealed[8] to the Court of Appeals. On 27 October 1998, the Court of Appeals issued its Decision
reversing the decision of the trial court.

On 11 May 1999, the Court of Appeals issued its Resolution denying the motion for reconsideration of Solidbank. The
appellate court, however, modified its decision by deleting the award of exemplary damages and attorney's fees.

The Ruling of the Trial Court

In absolving Solidbank, the trial court applied the rules on savings account written on the passbook. The rules state that
"possession of this book shall raise the presumption of ownership and any payment or payments made by the bank upon
the production of the said book and entry therein of the withdrawal shall have the same effect as if made to the depositor
personally."[9]

At the time of the withdrawal, a certain Noel Tamayo was not only in possession of the passbook, he also presented a
withdrawal slip with the signatures of the authorized signatories of L.C. Diaz. The specimen signatures of these persons
were in the signature cards. The teller stamped the withdrawal slip with the words "Saving Teller No. 5." The teller then
passed on the withdrawal slip to Genere Manuel ("Manuel") for authentication. Manuel verified the signatures on the
withdrawal slip. The withdrawal slip was then given to another officer who compared the signatures on the withdrawal slip
with the specimen on the signature cards. The trial court concluded that Solidbank acted with care and observed the rules
on savings account when it allowed the withdrawal of P300,000 from the savings account of L.C. Diaz.

The trial court pointed out that the burden of proof now shifted to L.C. Diaz to prove that the signatures on the withdrawal
slip were forged. The trial court admonished L.C. Diaz for not offering in evidence the National Bureau of Investigation
("NBI") report on the authenticity of the signatures on the withdrawal slip for P300,000. The trial court believed that L.C.
Diaz did not offer this evidence because it is derogatory to its action.

Another provision of the rules on savings account states that the depositor must keep the passbook "under lock and
key."[10] When another person presents the passbook for withdrawal prior to Solidbank's receipt of the notice of loss of
the passbook, that person is considered as the owner of the passbook. The trial court ruled that the passbook presented
during the questioned transaction was "now out of the lock and key and presumptively ready for a business
transaction."[11]

Solidbank did not have any participation in the custody and care of the passbook. The trial court believed that Solidbank's
act of allowing the withdrawal of P300,000 was not the direct and proximate cause of the loss. The trial court held that
L.C. Diaz's negligence caused the unauthorized withdrawal. Three facts establish L.C. Diaz's negligence: (1) the
possession of the passbook by a person other than the depositor L.C. Diaz; (2) the presentation of a signed withdrawal
receipt by an unauthorized person; and (3) the possession by an unauthorized person of a PBC check "long closed" by
L.C. Diaz, which check was deposited on the day of the fraudulent withdrawal.

The trial court debunked L.C. Diaz's contention that Solidbank did not follow the precautionary procedures observed by
the two parties whenever L.C. Diaz withdrew significant amounts from its account. L.C. Diaz claimed that a letter must
accompany withdrawals of more than P20,000. The letter must request Solidbank to allow the withdrawal and convert the
amount to a manager's check. The bearer must also have a letter authorizing him to withdraw the same amount. Another
person driving a car must accompany the bearer so that he would not walk from Solidbank to the office in making the
withdrawal. The trial court pointed out that L.C. Diaz disregarded these precautions in its past withdrawal. On 16 July
1991, L.C. Diaz withdrew P82,554 without any separate letter of authorization or any communication with Solidbank that
the money be converted into a manager's check.
 114

The trial court further justified the dismissal of the complaint by holding that the case was a last ditch effort of L.C. Diaz to
recover P300,000 after the dismissal of the criminal case against Ilagan.

The dispositive portion of the decision of the trial court reads:

IN VIEW OF THE FOREGOING, judgment is hereby rendered DISMISSING the complaint.

The Court further renders judgment in favor of defendant bank pursuant to its counterclaim the amount of Thirty Thousand
Pesos (P30,000.00) as attorney's fees.

With costs against plaintiff.

SO ORDERED.[12]
The Ruling of the Court of Appeals

The Court of Appeals ruled that Solidbank's negligence was the proximate cause of the unauthorized withdrawal of
P300,000 from the savings account of L.C. Diaz. The appellate court reached this conclusion after applying the provision
of the Civil Code on quasi-delict, to wit:

Article 2176. Whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay for
the damage done. Such fault or negligence, if there is no pre-existing contractual relation between the parties, is called a
quasi-delict and is governed by the provisions of this chapter.

The appellate court held that the three elements of a quasi-delict are present in this case, namely: (a) damages suffered
by the plaintiff; (b) fault or negligence of the defendant, or some other person for whose acts he must respond; and (c) the
connection of cause and effect between the fault or negligence of the defendant and the damage incurred by the plaintiff.

The Court of Appeals pointed out that the teller of Solidbank who received the withdrawal slip for P300,000 allowed the
withdrawal without making the necessary inquiry. The appellate court stated that the teller, who was not presented by
Solidbank during trial, should have called up the depositor because the money to be withdrawn was a significant amount.
Had the teller called up L.C. Diaz, Solidbank would have known that the withdrawal was unauthorized. The teller did not
even verify the identity of the impostor who made the withdrawal. Thus, the appellate court found Solidbank liable for its
negligence in the selection and supervision of its employees.

The appellate court ruled that while L.C. Diaz was also negligent in entrusting its deposits to its messenger and its
messenger in leaving the passbook with the teller, Solidbank could not escape liability because of the doctrine of "last
clear chance." Solidbank could have averted the injury suffered by L.C. Diaz had it called up L.C. Diaz to verify the
withdrawal.

The appellate court ruled that the degree of diligence required from Solidbank is more than that of a good father of a
family. The business and functions of banks are affected with public interest. Banks are obligated to treat the accounts of
their depositors with meticulous care, always having in mind the fiduciary nature of their relationship with their clients. The
Court of Appeals found Solidbank remiss in its duty, violating its fiduciary relationship with L.C. Diaz.

The dispositive portion of the decision of the Court of Appeals reads:

WHEREFORE, premises considered, the decision appealed from is hereby REVERSED and a new one entered.
Ordering defendant-appellee Consolidated Bank and Trust Corporation to pay plaintiff-appellant the sum of Three
Hundred Thousand Pesos (P300,000.00), with interest thereon at the rate of 12% per annum from the date of filing of the
complaint until paid, the sum of P20,000.00 as exemplary damages, and P20,000.00 as attorney's fees and expenses of
litigation as well as the cost of suit; and

Ordering the dismissal of defendant-appellee's counterclaim in the amount of P30,000.00 as attorney's fees.
SO ORDERED.[13]
Acting on the motion for reconsideration of Solidbank, the appellate court affirmed its decision but modified the award of
damages. The appellate court deleted the award of exemplary damages and attorney's fees. Invoking Article 2231[14] of
the Civil Code, the appellate court ruled that exemplary damages could be granted if the defendant acted with gross
negligence. Since Solidbank was guilty of simple negligence only, the award of exemplary damages was not justified.
 115

Consequently, the award of attorney's fees was also disallowed pursuant to Article 2208 of the Civil Code. The expenses
of litigation and cost of suit were also not imposed on Solidbank.

The dispositive portion of the Resolution reads as follows:

WHEREFORE, foregoing considered, our decision dated October 27, 1998 is affirmed with modification by deleting the
award of exemplary damages and attorney's fees, expenses of litigation and cost of suit.

SO ORDERED.[15]
Hence, this petition.

The Issues

Solidbank seeks the review of the decision and resolution of the Court of Appeals on these grounds:

THE COURT OF APPEALS ERRED IN HOLDING THAT PETITIONER BANK SHOULD SUFFER THE LOSS BECAUSE
ITS TELLER SHOULD HAVE FIRST CALLED PRIVATE RESPONDENT BY TELEPHONE BEFORE IT ALLOWED THE
WITHDRAWAL OF P300,000.00 TO RESPONDENT'S MESSENGER EMERANO ILAGAN, SINCE THERE IS NO
AGREEMENT BETWEEN THE PARTIES IN THE OPERATION OF THE SAVINGS ACCOUNT, NOR IS THERE ANY
BANKING LAW, WHICH MANDATES THAT A BANK TELLER SHOULD FIRST CALL UP THE DEPOSITOR BEFORE
ALLOWING A WITHDRAWAL OF A BIG AMOUNT IN A SAVINGS ACCOUNT.

THE COURT OF APPEALS ERRED IN APPLYING THE DOCTRINE OF LAST CLEAR CHANCE AND IN HOLDING
THAT PETITIONER BANK'S TELLER HAD THE LAST OPPORTUNITY TO WITHHOLD THE WITHDRAWAL WHEN IT
IS UNDISPUTED THAT THE TWO SIGNATURES OF RESPONDENT ON THE WITHDRAWAL SLIP ARE GENUINE
AND PRIVATE RESPONDENT'S PASSBOOK WAS DULY PRESENTED, AND CONTRARIWISE RESPONDENT WAS
NEGLIGENT IN THE SELECTION AND SUPERVISION OF ITS MESSENGER EMERANO ILAGAN, AND IN THE
SAFEKEEPING OF ITS CHECKS AND OTHER FINANCIAL DOCUMENTS.

THE COURT OF APPEALS ERRED IN NOT FINDING THAT THE INSTANT CASE IS A LAST DITCH EFFORT OF
PRIVATE RESPONDENT TO RECOVER ITS P300,000.00 AFTER FAILING IN ITS EFFORTS TO RECOVER THE
SAME FROM ITS EMPLOYEE EMERANO ILAGAN.

THE COURT OF APPEALS ERRED IN NOT MITIGATING THE DAMAGES AWARDED AGAINST PETITIONER UNDER
ARTICLE 2197 OF THE CIVIL CODE, NOTWITHSTANDING ITS FINDING THAT PETITIONER BANK'S NEGLIGENCE
WAS ONLY CONTRIBUTORY.[16]
The Ruling of the Court

The petition is partly meritorious.

Solidbank's Fiduciary Duty under the Law

The rulings of the trial court and the Court of Appeals conflict on the application of the law. The trial court pinned the
liability on L.C. Diaz based on the provisions of the rules on savings account, a recognition of the contractual relationship
between Solidbank and L.C. Diaz, the latter being a depositor of the former. On the other hand, the Court of Appeals
applied the law on quasi-delict to determine who between the two parties was ultimately negligent. The law on quasi-
delict or culpa aquiliana is generally applicable when there is no pre-existing contractual relationship between the parties.

We hold that Solidbank is liable for breach of contract due to negligence, or culpa contractual.

The contract between the bank and its depositor is governed by the provisions of the Civil Code on simple loan.[17] Article
1980 of the Civil Code expressly provides that "x x x savings x x x deposits of money in banks and similar institutions shall
 116

be governed by the provisions concerning simple loan." There is a debtor-creditor relationship between the bank and its
depositor. The bank is the debtor and the depositor is the creditor. The depositor lends the bank money and the bank
agrees to pay the depositor on demand. The savings deposit agreement between the bank and the depositor is the
contract that determines the rights and obligations of the parties.

The law imposes on banks high standards in view of the fiduciary nature of banking. Section 2 of Republic Act No. 8791
("RA 8791"),[18] which took effect on 13 June 2000, declares that the State recognizes the "fiduciary nature of banking
that requires high standards of integrity and performance."[19] This new provision in the general banking law, introduced
in 2000, is a statutory affirmation of Supreme Court decisions, starting with the 1990 case of Simex International v. Court
of Appeals,[20] holding that "the bank is under obligation to treat the accounts of its depositors with meticulous care,
always having in mind the fiduciary nature of their relationship."[21]

This fiduciary relationship means that the bank's obligation to observe "high standards of integrity and performance" is
deemed written into every deposit agreement between a bank and its depositor. The fiduciary nature of banking requires
banks to assume a degree of diligence higher than that of a good father of a family. Article 1172 of the Civil Code states
that the degree of diligence required of an obligor is that prescribed by law or contract, and absent such stipulation then
the diligence of a good father of a family.[22] Section 2 of RA 8791 prescribes the statutory diligence required from banks
- that banks must observe "high standards of integrity and performance" in servicing their depositors. Although RA 8791
took effect almost nine years after the unauthorized withdrawal of the P300,000 from L.C. Diaz's savings account,
jurisprudence[23] at the time of the withdrawal already imposed on banks the same high standard of diligence required
under RA No. 8791.

However, the fiduciary nature of a bank-depositor relationship does not convert the contract between the bank and its
depositors from a simple loan to a trust agreement, whether express or implied. Failure by the bank to pay the depositor
is failure to pay a simple loan, and not a breach of trust.[24] The law simply imposes on the bank a higher standard of
integrity and performance in complying with its obligations under the contract of simple loan, beyond those required of
non-bank debtors under a similar contract of simple loan.

The fiduciary nature of banking does not convert a simple loan into a trust agreement because banks do not accept
deposits to enrich depositors but to earn money for themselves. The law allows banks to offer the lowest possible interest
rate to depositors while charging the highest possible interest rate on their own borrowers. The interest spread or
differential belongs to the bank and not to the depositors who are not cestui que trust of banks. If depositors are cestui
que trust of banks, then the interest spread or income belongs to the depositors, a situation that Congress certainly did
not intend in enacting Section 2 of RA 8791.

Solidbank's Breach of its Contractual Obligation

Article 1172 of the Civil Code provides that "responsibility arising from negligence in the performance of every kind of
obligation is demandable." For breach of the savings deposit agreement due to negligence, or culpa contractual, the bank
is liable to its depositor.

Calapre left the passbook with Solidbank because the "transaction took time" and he had to go to Allied Bank for another
transaction. The passbook was still in the hands of the employees of Solidbank for the processing of the deposit when
Calapre left Solidbank. Solidbank's rules on savings account require that the "deposit book should be carefully guarded
by the depositor and kept under lock and key, if possible." When the passbook is in the possession of Solidbank's tellers
during withdrawals, the law imposes on Solidbank and its tellers an even higher degree of diligence in safeguarding the
passbook.

Likewise, Solidbank's tellers must exercise a high degree of diligence in insuring that they return the passbook only to the
depositor or his authorized representative. The tellers know, or should know, that the rules on savings account provide
that any person in possession of the passbook is presumptively its owner. If the tellers give the passbook to the wrong
person, they would be clothing that person presumptive ownership of the passbook, facilitating unauthorized withdrawals
by that person. For failing to return the passbook to Calapre, the authorized representative of L.C. Diaz, Solidbank and
Teller No. 6 presumptively failed to observe such high degree of diligence in safeguarding the passbook, and in insuring
its return to the party authorized to receive the same.

In culpa contractual, once the plaintiff proves a breach of contract, there is a presumption that the defendant was at fault
or negligent. The burden is on the defendant to prove that he was not at fault or negligent. In contrast, in culpa aquiliana
 117

the plaintiff has the burden of proving that the defendant was negligent. In the present case, L.C. Diaz has established
that Solidbank breached its contractual obligation to return the passbook only to the authorized representative of L.C.
Diaz. There is thus a presumption that Solidbank was at fault and its teller was negligent in not returning the passbook to
Calapre. The burden was on Solidbank to prove that there was no negligence on its part or its employees.

Solidbank failed to discharge its burden. Solidbank did not present to the trial court Teller No. 6, the teller with whom
Calapre left the passbook and who was supposed to return the passbook to him. The record does not indicate that Teller
No. 6 verified the identity of the person who retrieved the passbook. Solidbank also failed to adduce in evidence its
standard procedure in verifying the identity of the person retrieving the passbook, if there is such a procedure, and that
Teller No. 6 implemented this procedure in the present case.

Solidbank is bound by the negligence of its employees under the principle of respondeat superior or command
responsibility. The defense of exercising the required diligence in the selection and supervision of employees is not a
complete defense in culpa contractual, unlike in culpa aquiliana.[25]

The bank must not only exercise "high standards of integrity and performance," it must also insure that its employees do
likewise because this is the only way to insure that the bank will comply with its fiduciary duty. Solidbank failed to present
the teller who had the duty to return to Calapre the passbook, and thus failed to prove that this teller exercised the "high
standards of integrity and performance" required of Solidbank's employees.

Proximate Cause of the Unauthorized Withdrawal

Another point of disagreement between the trial and appellate courts is the proximate cause of the unauthorized
withdrawal. The trial court believed that L.C. Diaz's negligence in not securing its passbook under lock and key was the
proximate cause that allowed the impostor to withdraw the P300,000. For the appellate court, the proximate cause was
the teller's negligence in processing the withdrawal without first verifying with L.C. Diaz. We do not agree with either
court.

Proximate cause is that cause which, in natural and continuous sequence, unbroken by any efficient intervening cause,
produces the injury and without which the result would not have occurred.[26] Proximate cause is determined by the facts
of each case upon mixed considerations of logic, common sense, policy and precedent.[27]

L.C. Diaz was not at fault that the passbook landed in the hands of the impostor. Solidbank was in possession of the
passbook while it was processing the deposit. After completion of the transaction, Solidbank had the contractual
obligation to return the passbook only to Calapre, the authorized representative of L.C. Diaz. Solidbank failed to fulfill its
contractual obligation because it gave the passbook to another person.

Solidbank's failure to return the passbook to Calapre made possible the withdrawal of the P300,000 by the impostor who
took possession of the passbook. Under Solidbank's rules on savings account, mere possession of the passbook raises
the presumption of ownership. It was the negligent act of Solidbank's Teller No. 6 that gave the impostor presumptive
ownership of the passbook. Had the passbook not fallen into the hands of the impostor, the loss of P300,000 would not
have happened. Thus, the proximate cause of the unauthorized withdrawal was Solidbank's negligence in not returning
the passbook to Calapre.

We do not subscribe to the appellate court's theory that the proximate cause of the unauthorized withdrawal was the
teller's failure to call up L.C. Diaz to verify the withdrawal. Solidbank did not have the duty to call up L.C. Diaz to confirm
the withdrawal. There is no arrangement between Solidbank and L.C. Diaz to this effect. Even the agreement between
Solidbank and L.C. Diaz pertaining to measures that the parties must observe whenever withdrawals of large amounts are
made does not direct Solidbank to call up L.C. Diaz.

There is no law mandating banks to call up their clients whenever their representatives withdraw significant amounts from
their accounts. L.C. Diaz therefore had the burden to prove that it is the usual practice of Solidbank to call up its clients to
verify a withdrawal of a large amount of money. L.C. Diaz failed to do so.

Teller No. 5 who processed the withdrawal could not have been put on guard to verify the withdrawal. Prior to the
withdrawal of P300,000, the impostor deposited with Teller No. 6 the P90,000 PBC check, which later bounced. The
impostor apparently deposited a large amount of money to deflect suspicion from the withdrawal of a much bigger amount
 118

of money. The appellate court thus erred when it imposed on Solidbank the duty to call up L.C. Diaz to confirm the
withdrawal when no law requires this from banks and when the teller had no reason to be suspicious of the transaction.

Solidbank continues to foist the defense that Ilagan made the withdrawal. Solidbank claims that since Ilagan was also a
messenger of L.C. Diaz, he was familiar with its teller so that there was no more need for the teller to verify the
withdrawal. Solidbank relies on the following statements in the Booking and Information Sheet of Emerano Ilagan:

xxx Ilagan also had with him (before the withdrawal) a forged check of PBC and indicated the amount of P90,000 which
he deposited in favor of L.C. Diaz and Company. After successfully withdrawing this large sum of money, accused Ilagan
gave alias Rey (Noel Tamayo) his share of the loot. Ilagan then hired a taxicab in the amount of P1,000 to transport him
(Ilagan) to his home province at Bauan, Batangas. Ilagan extravagantly and lavishly spent his money but a big part of his
loot was wasted in cockfight and horse racing. Ilagan was apprehended and meekly admitted his guilt.[28] (Emphasis
supplied.)

L.C. Diaz refutes Solidbank's contention by pointing out that the person who withdrew the P300,000 was a certain Noel
Tamayo. Both the trial and appellate courts stated that this Noel Tamayo presented the passbook with the withdrawal
slip.

We uphold the finding of the trial and appellate courts that a certain Noel Tamayo withdrew the P300,000. The Court is
not a trier of facts. We find no justifiable reason to reverse the factual finding of the trial court and the Court of Appeals.
The tellers who processed the deposit of the P90,000 check and the withdrawal of the P300,000 were not presented
during trial to substantiate Solidbank's claim that Ilagan deposited the check and made the questioned withdrawal.
Moreover, the entry quoted by Solidbank does not categorically state that Ilagan presented the withdrawal slip and the
passbook.

Doctrine of Last Clear Chance

The doctrine of last clear chance states that where both parties are negligent but the negligent act of one is appreciably
later than that of the other, or where it is impossible to determine whose fault or negligence caused the loss, the one who
had the last clear opportunity to avoid the loss but failed to do so, is chargeable with the loss.[29] Stated differently, the
antecedent negligence of the plaintiff does not preclude him from recovering damages caused by the supervening
negligence of the defendant, who had the last fair chance to prevent the impending harm by the exercise of due
diligence.[30]

We do not apply the doctrine of last clear chance to the present case. Solidbank is liable for breach of contract due to
negligence in the performance of its contractual obligation to L.C. Diaz. This is a case of culpa contractual, where neither
the contributory negligence of the plaintiff nor his last clear chance to avoid the loss, would exonerate the defendant from
liability.[31] Such contributory negligence or last clear chance by the plaintiff merely serves to reduce the recovery of
damages by the plaintiff but does not exculpate the defendant from his breach of contract.[32]

Mitigated Damages

Under Article 1172, "liability (for culpa contractual) may be regulated by the courts, according to the circumstances." This
means that if the defendant exercised the proper diligence in the selection and supervision of its employee, or if the
plaintiff was guilty of contributory negligence, then the courts may reduce the award of damages. In this case, L.C. Diaz
was guilty of contributory negligence in allowing a withdrawal slip signed by its authorized signatories to fall into the hands
of an impostor. Thus, the liability of Solidbank should be reduced.

In Philippine Bank of Commerce v. Court of Appeals,[33] where the Court held the depositor guilty of contributory
negligence, we allocated the damages between the depositor and the bank on a 40-60 ratio. Applying the same ruling to
this case, we hold that L.C. Diaz must shoulder 40% of the actual damages awarded by the appellate court. Solidbank
must pay the other 60% of the actual damages.

WHEREFORE, the decision of the Court of Appeals is AFFIRMED with MODIFICATION. Petitioner Solidbank
Corporation shall pay private respondent L.C. Diaz and Company, CPA's only 60% of the actual damages awarded by the
 119

Court of Appeals. The remaining 40% of the actual damages shall be borne by private respondent L.C. Diaz and
Company, CPA's. Proportionate costs. SO ORDERED.
 120

G.R. No. L-21438, September 28, 1966

AIR FRANCE, PETITIONER, VS. RAFAEL CARRASCOSO AND THE HONORABLE COURT OF APPEALS,
RESPONDENTS.

DECISION
SANCHEZ, J.:

The Court of First Instance of Manila [1] sentenced petitioner to pay respondent Rafael Carrascoso P25,000.00 by way of
moral damages; P10,000.00 as exemplary damages; P393.20 representing the difference in fare between first class and
tourist class for the portion of the trip Bangkok-Rome, these various amounts with interest at the legal rate, from the date
of the filing of the complaint until paid; plus P3,000.00 for attorneys' fees; and the costs of suit.
On appeal, [2] the Court of Appeals slightly reduced the amount of refund on Carrascoso's plane ticket from P393.20 to
P383.10, and voted to affirm the appealed decision "in all other respects", with costs against petitioner.

The case is now before us for review on certiorari.

The facts declared by the Court of Appeals as "fully supported by the evidence of record", are:

"Plaintiff, a civil engineer, was a member of a group of 48 Filipino pilgrims that left Manila for Lourdes on March 30, 1958.

On March 28, 1958, the defendant, Air France, through its authorized agent, Philippine Air Lines, Inc., issued to plaintiff a
'first class' round trip airplane ticket from Manila to Rome. From Manila to Bangkok, plaintiff travelled in 'first class', but at
Bangkok, the Manager of the defendant airline forced plaintiff to vacate the 'first class' seat that he was occupying
because, in the words of the witness Ernesto G. Cuento, there was a 'white man', who, the Manager alleged, had a 'better
right to the seat. When asked to vacate his 'first class' seat, the plaintiff, as was to be expected, refused, and told
defendant's Manager that his seat would be taken over his dead body; a commotion ensued, and, according to said
Ernesto G. Cuento, 'many of the Filipino passengers got nervous in the tourist class; when they found out that Mr.
Carrascoso was having a hot discussion with the white man [manager], they came all across to Mr. Carrascoso and
pacified Mr. Carrascoso to give his seat to the white man (Transcript, p. 12, Hearing of May 26, 1959); and plaintiff
reluctantly gave his 'first class' seat in the plane." [3]

1. The thrust of the relief petitioner now seeks is that we review all the findings" [4] of respondent Court of Appeals.
Petitioner charges that respondent court failed to make complete findings of fact on all the issues properly laid before it.
We are asked to consider facts favorable to petitioner, and then, to overturn the appellate court's decision.

Coming into focus is the constitutional mandate that "No decision shall be rendered by any court of record without
expressing therein clearly and distinctly the facts and the law on which it is based". [5] This is echoed in the statutory
demand that a judgment determining the merits of the case shall state "clearly and distinctly the facts and the law on
which it is based"; [6] and that "Every decision of the Court of Appeals shall contain complete findings of fact on all issues
properly raised before it". [7]

A decision with absolutely nothing to support it is a nullity. It is open to direct attack. [8] The law, however, solely insists
that a decision state the "essential ultimate facts" upon which the court's conclusion is drawn. [9] A court of justice is not
hidebound to write in its decision every bit and piece of evidence [10] presented by one party and the other upon the
issues raised. Neither is it to be burdened with the obligation "to specify in the sentence the facts" which a party
"considered as proved. [11] This is but a part of the mental process from which the Court draws the essential ultimate
facts. A decision is not to be so clogged with details such that prolixity, if not confusion, may result. So long as the
decision of the Court of Appeals contains the necessary facts to warrant its conclusions, it is no error for said court to
withhold therefrom "any specific finding of facts with respect to the evidence for the defense". Because, as this Court well
observed, "There is no law that so requires". [12]] Indeed, "the mere failure to specify (in the decision) the contentions of
the appellant and the reasons for refusing to believe them is not sufficient to hold the same contrary to the requirements of
the provisions of law and the Constitution". It is in this setting that in Manigque, it was held that the mere fact that the
findings "were based entirely on the evidence for the prosecution without taking into consideration or even mentioning the
appellant's side in the controversy as shown by his own testimony", would not vitiate the judgment. [13] If the court did not
recite in the decision the testimony of each witness for, or each item of evidence presented by, the defeated party, it does
not mean that the court has overlooked such testimony or such item of evidence. [14] At any rate, the legal presumptions
are that official duty has been regularly performed, and that all the matters within an issue in a case were laid before the
court and passed upon by it. [15]
 121

Findings of fact, which the Court of Appeals is required to make, maybe defined as "the written statement of the ultimate
facts as found by the court x x x and essential to support the decision and judgment rendered thereon". [16] They consist
of the court's "conclusions with respect to the determinative facts in issue". [17] A question of law, upon the other hand,
has been declared as "one which does not call for an examination of the probative value of the evidence presented by the
parties." [18]

2. By statute, "only questions of law may be raised" in an appeal by certiorari from a judgment of the Court of Appeals.
[19] That judgment is conclusive as to the facts. It is not appropriately the business of this Court to alter the facts or to
review the questions of fact. [20]

With these guideposts, we now face the problem of whether the findings of fact of the Court of Appeals support its
judgment.

3. Was Carrascoso entitled to the first class seat he claims?

It is conceded in all quarters that on March 28, 1958 he paid to and received from petitioner a first class ticket. But
petitioner asserts that said ticket did not represent the true and complete intent and agreement of the parties; that said
respondent knew that he did not have confirmed reservations for first class on any specific flight, although he had tourist
class protection; that, accordingly, the issuance of a first class ticket was no guarantee that he would have a first class
ride, but that such would depend upon the availability of first class seats.

These are matters which petitioner has thoroughly presented and discussed in its brief before the Court of Appeals under
its third assignment of error, which reads: "The trial court erred in finding that plaintiff had confirmed reservations for, and
a right to, first class seats on the 'definite segments of his journey, particularly that from Saigon to Beirut". [21]

And, the Court of Appeals disposed of this contention thus:

"Defendant seems to capitalize on the argument that the issuance of a first-class ticket was no guarantee that the
passenger to whom the same had been issued, would be accommodated in the first-class compartment, for as in the case
of plaintiff he had yet to make arrangements upon arrival at every station for the necessary first-class reservation. We are
not impressed by such a reasoning. We cannot understand how a reputable firm like defendant airplane company could
have the indiscretion to give out tickets it never meant to honor at all. It received the corresponding amount in payment of
first-class tickets and yet it allowed the passenger to be at the mercy of its employees. It is more in keeping with the
ordinary course of business that the company should know whether or not the tickets it issues are to be honored or not."
[22]

Not that the Court of Appeals is alone. The trial court similarly disposed of petitioner's contention, thus:

"On the fact that plaintiff paid for, and was issued a First class' ticket, there can be no question. Apart from his testimony,
see plaintiff's Exhibits 'A, 'A-1', 'B, 'B-1, 'B-2, 'C and 'C-1, and defendant's own witness, Rafael Altonaga, confirmed
plaintiff's testimony and testified as follows:

Q. In these tickets there are marks 'O.K. From what you know, what does this O.K. mean?

A. That the space is confirmed.

Q. Confirmed for first class?

A. Yes, 'first class'. (Transcript, p. 169)

xxxx

"Defendant tried to prove by the testimony of its witnesses Luis Zaldariaga and Rafael Altonaga that although plaintiff paid
for, and was issued a 'first class' airplane ticket, the ticket was subject to confirmation in Hongkong. The court cannot give
credit to the testimony of said witnesses. Oral evidence cannot prevail over written evidence, and plaintiff's Exhibits 'A, 'A-
1', 'B', 'B-1', 'C and 'C-1 belie the testimony of said witnesses, and clearly show that the plaintiff was issued, and paid for,
a first class ticket without any reservation whatever.

Furthermore, as hereinabove shown, defendant's own witness Rafael Altonaga testified that the reservation for a 'first
class' accommodation for the plaintiff was confirmed. The court cannot believe that after such confirmation defendant had
 122

a verbal understanding with plaintiff that the 'first class ticket issued to him by defendant would be subject to confirmation
in Hongkong." [23]

We have heretofore adverted to the fact that except for a slight difference of a few pesos in the amount refunded on
Carrascoso's ticket, the decision of the Court of First Instance was affirmed by the Court of Appeals in all other respects.
We hold the view that such a judgment of affirmance has merged the judgment of the lower court. [24] Implicit in that
affirmance is a determination by the Court of Appeals that the proceeding in the Court of First Instance was free from
prejudicial error and that "all questions raised by the assignments of error and all questions that might have been so
raised are to be regarded as finally adjudicated against the appellant". So also, the judgment affirmed "must be regarded
as free from all error". [25] We reached this policy construction because nothing in the decision of the Court of Appeals on
this point would suggest that its findings of fact are in any way at war with those of the trial court. Nor was said affirmance
by the Court of Appeals upon a ground or grounds different from those which were made the basis of the conclusions of
the trial court. [26]

If, as petitioner underscores, a first-class-ticket holder is not entitled to a first class seat, notwithstanding the fact that seat
availability in specific flights is therein confirmed, then an air passenger is placed in the hollow of the hands of an airline.
What security then can a passenger have? It will always be an easy matter for an airline aided by its employees, to strike
out the very stipulations in the ticket, and say that there was a verbal agreement to the contrary. What if the passenger
had a schedule to fulfill? We have long learned that, as a rule, a written document speaks a uniform language; that
spoken word could be notoriously unreliable. If only to achieve stability in the relations between passenger and air carrier,
adherence to the ticket so issued is desirable. Such is the case here. The lower courts refused to believe the oral
evidence intended to defeat the covenants in the ticket.

The foregoing are the considerations which point to the conclusion that there are facts upon which the Court of Appeals
predicated the finding that respondent Carrascoso had a first class ticket and was entitled to a first class seat at Bangkok,
which is a stopover in the Saigon to Beirut leg of the flight. [27] We perceive no "welter of distortions by the Court of
Appeals of petitioner's statement of its position", as charged by petitioner. [28] Nor do we subscribe to petitioner's
accusation that respondent Carrascoso "surreptitiously took a first class seat to provoke an issue". [29] And this because,
as petitioner states, Carrascoso went to see the Manager at his office in Bangkok "to confirm my seat and because from
Saigon I was told again to see the Manager". [30] Why, then, was he allowed to take a first class seat in the plane at
Bangkok, if he had no seat? Or, if another had a better right to the seat?

4. Petitioner assails respondent court's award of moral damages. Petitioner's trenchant claim is that Carrascoso's action is
planted upon breach of contract; that to authorize an award for moral damages there must be an averment of fraud or bad
faith; [31] and that the decision of the Court of Appeals fails to make a finding of bad faith. The pivotal allegations in the
complaint bearing on this issue are:

"3. That x x x plaintiff entered into a contract of air carriage with the Philippine Air Lines for a valuable consideration, the
latter acting as general agents for and in behalf of the defendant, under which said contract, plaintiff was entitled to, as
defendant agreed to furnish plaintiff, First Class passage on defendant's plane during the entire duration of plaintiff's tour
of Europe with Hongkong as starting point up to and until plaintiff's return trip to Manila, x x x

4. That, during the first two legs of the trip from Hongkong to Saigon and from Saigon to Bangkok, defendant furnished to
the plaintiff First Class accommodation but only after protestations, arguments and/or insistence were made by the
plaintiff with defendant's employees.

5. That finally, defendant failed to provide First Class passage, but instead furnished plaintiff only Tourist Class
accommodations from Bangkok to Teheran and/or Casablanca, x x x the plaintiff has been compelled by defendant's
employees to leave the First Class accommodation berths at Bangkok after he was already seated.

6. That consequently, the plaintiff, desiring no repetition of the inconvenience and embarrassments brought by
defendant's breach of contract was forced to take a Pan American World Airways plane on his return trip from Madrid to
Manila. [32]

xxxx

2. That likewise, as a result of defendant's failure to furnish First Class accommodations aforesaid, plaintiff suffered
inconveniences, embarrassments, and humiliations, thereby causing plaintiff mental anguish, serious anxiety, wounded
feelings, social humiliation, and the like injury, resulting in moral damages in the amount of P30,000.00." [33]
 123

The foregoing, in our opinion, substantially aver: First, That there was a contract to furnish plaintiff a first class passage
covering, amongst others, the Bangkok-Teheran leg; Second, That said contract was breached when petitioner failed to
furnish first class transportation at Bangkok; and Third, That there was bad faith when petitioner's employee compelled
Carrascoso to leave his first class accommodation berth "after he was already seated" and to take a seat in the tourist
class, by reason of which he suffered inconvenience, embarrassments and humiliations, thereby causing him mental
anguish, serious anxiety, wounded feelings and social humiliation, resulting in moral damages. It is true that there is no
specific mention of the term bad faith in the complaint. But, the inference of bad faith is there; it may be drawn from the
facts and circumstances set forth therein. [34] The contract was averred to establish the relation between the parties. But
the stress of the action is put on wrongful expulsion.

Quite apart from the foregoing is that (a) right at the start of the trial, respondent's counsel placed petitioner on guard on
what Carrascoso intended to prove: That while sitting in the plane in Bangkok, Carrascoso was ousted by petitioner's
manager who gave his seat to a white man; [35] and (b) evidence of bad faith in the fulfillment of the contract was
presented without objection on the part of the petitioner. It is, therefore, unnecessary to inquire as to whether or not there
is sufficient averment in the complaint to justify an award for moral damages. Deficiency in the complaint, if any, was
cured by the evidence. An amendment thereof to conform to the evidence is not even required. [36] On the question of
bad faith, the Court of Appeals declared:

"That the plaintiff was forced out of his seat in the first class compartment of the plane belonging to the defendant Air
France while at Bangkok, and was transferred to the tourist class not only without his consent but against his will, has
been sufficiently established by plaintiff in his testimony before the court, corroborated by the corresponding entry made
by the purser of the plane in his notebook which notation reads as follows:

'First-class passenger was forced to go to the tourist class against his will, and that the captain refused to intervene, ***
and by the testimony of an eye-witness, Ernesto G. Cuento, who was a co-passenger. The captain of the plane who was
asked by the manager of defendant company at Bangkok to intervene even refused to do so. It is noteworthy that no one
on behalf of defendant ever contradicted or denied this evidence for the plaintiff. It could have been easy for defendant to
present its manager at Bangkok to testify at the trial of the case, or yet to secure his deposition; but defendant did neither.
[37]

The Court of Appeals further stated -

"Neither is there evidence as to whether or not a prior reservation was made by the white man. Hence, if the employees of
the defendant at Bangkok sold a first-class ticket to him when all the seats had already been taken, surely the plaintiff
should not have been picked out as the one to suffer the consequences and to be subjected to the humiliation and
indignity of being ejected from his seat in the presence of others. Instead of explaining to the white man the improvidence
committed by defendant's employees, the manager adopted the more drastic step of ousting the plaintiff who was then
safely ensconsced in his rightful seat. We are strengthened in our belief that this probably was what happened there, by
the testimony of defendant's witness Rafael Altonaga who, when asked to explain the meaning of the letters 'O.K.'
appearing on the tickets of plaintiff, said 'that the space is confirmed for first class. Likewise, Zenaida Faustino, another
witness for defendant, who was the chief of the Reservation Office of defendant, testified as follows:

Q. How does the person in the ticket-issuing office know what reservation the passenger has arranged with you?

A. They call us up by phone and ask for the confirmation,' (t.s.n., p. 247, June 19, 1959)

In this connection, we quote with approval what the trial Judge has said on this point:

'Why did the, using the words of the witness Ernesto G. Cuento, 'white man have a 'better right' to the seat occupied by
Mr. Carrascoso? The record is silent. The defendant airline did not prove any better', nay, any right on the part of the
'white man to the 'First class seat that the plaintiff was occupying and for which he paid and was issued a corresponding
'first class' ticket.

'If there was a justified reason for the action of the defendant's Manager in Bangkok, the defendant could have easily
proven it by having taken the testimony of the said Manager by deposition, but defendant did not do so; the presumption
is that evidence willfully suppressed would be adverse if produced [Sec. 69, par. (e), Rules of Court]; and, under the
circumstances, the Court is constrained to find, as it does find, that the Manager of the defendant airline in Bangkok not
merely asked but threatened the plaintiff to throw him out of the plane if he did not give up his 'first class seat because the
said Manager wanted to accommodate, using the words of the witness Ernesto G. Cuento, the 'white man [38]
 124

It is really correct to say that the Court of Appeals in the quoted portion first transcribed did not use the term "bad faith".
But can it be doubted that the recital of facts therein points to bad faith? The manager not only prevented Carrascoso from
enjoying his right to a first class seat; worse, he imposed his arbitrary will; he forcibly ejected him from his seat, made him
suffer the humiliation of having to go to the tourist class compartment - just to give way to another passenger whose right
thereto has not been established. Certainly, this is bad faith. Unless, of course, bad faith has assumed a meaning different
from what is understood in law. For, "bad faith" contemplates a "state of mind affirmatively operating with furtive design or
with some motive of self-interest or ill will or for ulterior purpose." [39]

And if the foregoing were not yet sufficient, there is the express finding of bad faith in the judgment of the Court of First
Instance, thus:

"The evidence shows that defendant violated its contract of transportation with plaintiff in bad faith, with the aggravating
circumstances that defendant's Manager in Bangkok went to the extent of threatening the plaintiff in the presence of many
passengers to have him thrown out of the airplane to give the 'first class seat that he was occupying to, again using the
words of the witness Ernesto G. Cuento, a 'white man whom he (defendant's Manager) wished to accommodate, and the
defendant has not proven that this 'white man had any 'better right' to occupy the 'first class' seat that the plaintiff was
occupying, duly paid for, and for which the corresponding 'first class ticket was issued by the defendant to him." [40]

5. The responsibility of an employer for the tortious act of its employees need not be essayed. It is well settled in law. [41]
For the willful malevolent act of petitioner's manager, petitioner, his employer, must answer. Article 21 of the Civil Code
says:

"ART. 21. Any person who wilfully causes loss or injury to another in a manner that is contrary to morals, good customs or
public policy shall compensate the latter for the damage."

In parallel circumstances, we applied the foregoing legal precept; and, we held that upon the provisions of Article 2219
(10), Civil Code, moral damages are recoverable. [42]

6. A contract to transport passengers is quite different in kind and degree from any other contractual relation. [43] And
this, because of the relation which an air-carrier sustains with the public. Its business is mainly with the travelling public. It
invites people to avail of the comforts and advantages it offers. The contract of air carriage, therefore, generates a relation
attended with a public duty. Neglect or malfeasance of the carrier's employees, naturally, could give ground for an action
for damages.

Passengers do not contract merely for transportation. They have a right to be treated by the carrier's employees with
kindness, respect, courtesy and due consideration. They are entitled to be protected against personal misconduct,
injurious language, indignities and abuses from such employees. So it is, that any rude or discourteous conduct on the
part of employees towards a passenger gives the latter an action for damages against the carrier. [44]

Thus, "Where a steamship company [45] had accepted a passenger's check, it was a breach of contract and a tort, giving
a right of action for its agent in the presence of third persons to falsely notify her that the check was worthless and
demand payment under threat of ejection, though the language used was not insulting and she was not ejected. [46] And
this, because, although the relation of passenger and carrier is "contractual both in origin and nature" nevertheless "the
act that breaks the contract may be also a tort". [47] And in another case, "Where a passenger on a railroad train, when
the conductor came to collect his fare, tendered him the cash fare to a point where the train was scheduled not to stop,
and told him that as soon as the train reached such point he would pay the cash fare from that point to destination, there
was nothing in the conduct of the passenger which justified the conductor in using insulting language to him, as by calling
him a lunatic," and the Supreme Court of South Carolina there held the carrier liable for the mental suffering of said
passenger. [48]

Petitioner's contract with Carrascoso is one attended with public duty. The stress of Carrascoso's action as we have said,
is placed upon his wrongful expulsion. This is a violation of public duty by the petitioner-air carrier - a case of quasi-delict.
Damages are proper.

7. Petitioner draws our attention to respondent Carrascoso's testimony, thus -

"Q. You mentioned about an attendant. Who is that attendant and purser?
 125

A. When we left already - that was already in the trip - I could not help it. So one of the flight attendants approached me
and requested from me my ticket and I said, What for? and she said, 'We will note that you were transferred to the tourist
class'. I said, 'Nothing of that kind. That is tantamount to accepting my transfer.' And I also said, 'You are not going to note
anything there because I am protesting to this transfer'.

Q. Was she able to note it?

A. No, because I did not give my ticket.

Q. About that purser?

A. Well, the seats there are so close that you feel uncomfortable and you don't have enough leg room, I stood up and I
went to the pantry that was next to me and the purser was there. He told me, 'I have recorded the incident in my
notebook.' He read it and translated it to me - because it was recorded in French - 'First class passenger was forced to go
to the tourist class against his will, and that the captain refused to intervene.'

MR. VALTE -

I move to strike out the last part of the testimony of the witness because the best evidence would be the notes. Your
Honor.

COURT -

I will allow that as part of his testimony." [49]

Petitioner charges that the finding of the Court of Appeals that the purser made an entry in his notebook reading "First
class passenger was forced to go to the tourist class against his will, and that the captain refused to intervene" is
predicated upon evidence [Carrascoso's testimony above] which is incompetent. We do not think so. The subject of
inquiry is not the entry, but the ouster incident. Testimony on the entry does not come within the proscription of the best
evidence rule. Such testimony is admissible. [49A]

Besides, from a reading of the transcript just quoted, when the dialogue happened, the impact of the startling occurrence
was still fresh and continued to be felt. The excitement had not as yet died down. Statements then, in this environment,
are admissible as part of the res gestae. [50] For, they grow "out of the nervous excitement and mental and physical
condition of the declarant". [51] The utterance of the purser regarding his entry in the notebook was spontaneous, and
related to the circumstances of the ouster incident. Its trustworthiness has been guaranteed. [52] It thus escapes the
operation of the hearsay rule. It forms part of the res gestae.

At all events, the entry was made outside the Philippines. And, by an employee of petitioner. It would have been an easy
matter for petitioner to have contradicted Carrascoso's testimony. If it were really true that no such entry was made, the
deposition of the purser could have cleared up the matter.

We, therefore, hold that the transcribed testimony of Carrascoso is admissible in evidence.

8. Exemplary damages are well awarded. The Civil Code gives the court ample power to grant exemplary damages - in
contracts and quasi-contracts. The only condition is that defendant should have "acted in a wanton, fraudulent, reckless,
oppressive, or malevolent manner". [53] The manner of ejectment of respondent Carrascoso from his first class seat fits
into this legal precept. And this, in addition to moral damages. [54]

9. The right to attorneys fees is fully established. The grant of exemplary damages justifies a similar judgment for
attorneys' fees. The least that can be said is that the courts below felt that it is but just and equitable that attorneys' fees
be given. [55] We do not intend to break faith with the tradition that discretion well exercised - as it was here - should not
be disturbed.

10. Questioned as excessive are the amounts decreed by both the trial court and the Court of Appeals, thus: P25,000.00,
as moral damages; P10,000.00, by way of exemplary damages, and P3,000.00 as attorneys' fees. The task of fixing these
amounts is primarily with the trial court. [56] The Court of Appeals did not interfere with the same. The dictates of good
sense suggest that we give our imprimatur thereto. Because, the facts and circumstances point to the reasonableness
thereof. [57]
 126

On balance, we say that the judgment of the Court of Appeals does not suffer from reversible error. We accordingly vote
to affirm the same. Costs against petitioner.

SO ORDERED.
 127

G.R. No. 108164 February 23, 1995

FAR EAST BANK AND TRUST COMPANY, petitioner, vs. THE HONORABLE COURT OF APPEALS, LUIS
A. LUNA and CLARITA S. LUNA, respondents.

VITUG, J.:

Some time in October 1986, private respondent Luis A. Luna applied for, and was accorded, a FAREASTCARD issued by
petitioner Far East Bank and Trust Company ("FEBTC") at its Pasig Branch. Upon his request, the bank also issued a
supplemental card to private respondent Clarita S. Luna.

In August 1988, Clarita lost her credit card. FEBTC was forthwith informed. In order to replace the lost card, Clarita
submitted an affidavit of loss. In cases of this nature, the bank's internal security procedures and policy would appear to
be to meanwhile so record the lost card, along with the principal card, as a "Hot Card" or "Cancelled Card" in its master
file.

On 06 October 1988, Luis tendered a despedida lunch for a close friend, a Filipino-American, and another guest at the
Bahia Rooftop Restaurant of the Hotel Intercontinental Manila. To pay for the lunch, Luis presented his FAREASTCARD
to the attending waiter who promptly had it verified through a telephone call to the bank's Credit Card Department. Since
the card was not honored, Luis was forced to pay in cash the bill amounting to P588.13. Naturally, Luis felt embarrassed
by this incident.

In a letter, dated 11 October 1988, private respondent Luis Luna, through counsel, demanded from FEBTC the payment
of damages. Adrian V. Festejo, a vice-president of the bank, expressed the bank's apologies to Luis. In his letter, dated 03
November 1988, Festejo, in part, said:

In cases when a card is reported to our office as lost, FAREASTCARD undertakes the necessary action to avert its
unauthorized use (such as tagging the card as hotlisted), as it is always our intention to protect our cardholders.

An investigation of your case however, revealed that FAREASTCARD failed to inform you about its security policy.
Furthermore, an overzealous employee of the Bank's Credit Card Department did not consider the possibility that it may
have been you who was presenting the card at that time (for which reason, the unfortunate incident occurred). 1

Festejo also sent a letter to the Manager of the Bahia Rooftop Restaurant to assure the latter that private respondents
were "very valued clients" of FEBTC. William Anthony King, Food and Beverage Manager of the Intercontinental Hotel,
wrote back to say that the credibility of private respondent had never been "in question." A copy of this reply was sent to
Luis by Festejo.

Still evidently feeling aggrieved, private respondents, on 05 December 1988, filed a complaint for damages with the
Regional Trial Court ("RTC") of Pasig against FEBTC.

On 30 March 1990, the RTC of Pasig, given the foregoing factual settings, rendered a decision ordering FEBTC to pay
private respondents (a) P300,000.00 moral damages; (b) P50,000.00 exemplary damages; and (c) P20,000.00 attorney's
fees.

On appeal to the Court of Appeals, the appellate court affirmed the decision of the trial court.

Its motion for reconsideration having been denied by the appellate court, FEBTC has come to this Court with this petition
for review.

There is merit in this appeal.

In culpa contractual, moral damages may be recovered where the defendant is shown to have acted in bad faith or with
malice in the breach of the contract. 2 The Civil Code provides:

Art. 2220. Willful injury to property may be a legal ground for awarding moral damages if the court should find that,
under the circumstances, such damages are justly due. The same rule applies to breaches of contract where the
defendant acted fraudulently or in bad faith. (Emphasis supplied)
 128

Bad faith, in this context, includes gross, but not simple, negligence. 3 Exceptionally, in a contract of carriage, moral
damages are also allowed in case of death of a passenger attributable to the fault (which is presumed 4) of the common
carrier. 5

Concededly, the bank was remiss in indeed neglecting to personally inform Luis of his own card's cancellation. Nothing in
the findings of the trial court and the appellate court, however, can sufficiently indicate any deliberate intent on the part of
FEBTC to cause harm to private respondents. Neither could FEBTC's negligence in failing to give personal notice to Luis
be considered so gross as to amount to malice or bad faith.

Malice or bad faith implies a conscious and intentional design to do a wrongful act for a dishonest purpose or moral
obliquity; it is different from the negative idea of negligence in that malice or bad faith contemplates a state of mind
affirmatively operating with furtive design or ill will. 6

We are not unaware of the previous rulings of this Court, such as in American Express International, Inc., vs. Intermediate
Appellate Court (167 SCRA 209) and Bank of Philippine Islands vs. Intermediate Appellate Court (206 SCRA 408),
sanctioning the application of Article 21, in relation to Article 2217 and Article 2219 7 of the Civil Code to a contractual
breach similar to the case at bench. Article 21 states:

Art. 21. Any person who wilfully causes loss or injury to another in a manner that is contrary to morals, good customs or
public policy shall compensate the latter for the damage.

Article 21 of the Code, it should be observed, contemplates a conscious act to cause harm. Thus, even if we are to
assume that the provision could properly relate to a breach of contract, its application can be warranted only when the
defendant's disregard of his contractual obligation is so deliberate as to approximate a degree of misconduct certainly no
less worse than fraud or bad faith. Most importantly, Article 21 is a mere declaration of a general principle in human
relations that clearly must, in any case, give way to the specific provision of Article 2220 of the Civil Code authorizing the
grant of moral damages in culpa contractual solely when the breach is due to fraud or bad faith.

Mr. Justice Jose B.L. Reyes, in his ponencia in Fores vs. Miranda 8 explained with great clarity the predominance that we
should give to Article 2220 in contractual relations; we quote:

Anent the moral damages ordered to be paid to the respondent, the same must be discarded. We have repeatedly ruled
(Cachero vs. Manila Yellow Taxicab Co. Inc., 101 Phil. 523; 54 Off. Gaz., [26], 6599; Necesito, et al. vs. Paras, 104 Phil.,
75; 56 Off. Gaz., [23] 4023), that moral damages are not recoverable in damage actions predicated on a breach of the
contract of transportation, in view of Articles 2219 and 2220 of the new Civil Code, which provide as follows:

Art. 2219. Moral damages may be recovered in the following and analogous cases:

(1) A criminal offense resulting in physical injuries;

(2) Quasi-delicts causing physical injuries;

xxx xxx xxx

Art. 2220. Wilful injury to property may be a legal ground for awarding moral damages if the court should find that,
under the circumstances, such damages are justly due. The same rule applies to breaches of contract where the
defendant acted fraudulently or in bad faith.

By contrasting the provisions of these two articles it immediately becomes apparent that:

(a) In case of breach of contract (including one of transportation) proof of bad faith or fraud (dolus), i.e., wanton or
deliberately injurious conduct, is essential to justify an award of moral damages; and

(b) That a breach of contract can not be considered included in the descriptive term "analogous cases" used in Art.
2219; not only because Art. 2220 specifically provides for the damages that are caused contractual breach, but because
the definition of quasi-delict in Art. 2176 of the Code expressly excludes the cases where there is a "preexisitng
contractual relations between the parties."
 129

Art. 2176. Whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay
for the damage done. Such fault or negligence, if there is no pre-existing contractual relation between the parties, is called
a quasi-delict and is governed by the provisions of this Chapter.

The exception to the basic rule of damages now under consideration is a mishap resulting in the death of a passenger, in
which case Article 1764 makes the common carrier expressly subject to the rule of Art. 2206, that entitles the spouse,
descendants and ascendants of the deceased passenger to "demand moral damages for mental anguish by reason of the
death of the deceased" (Necesito vs. Paras, 104 Phil. 84, Resolution on motion to reconsider, September 11, 1958). But
the exceptional rule of Art. 1764 makes it all the more evident that where the injured passenger does not die, moral
damages are not recoverable unless it is proved that the carrier was guilty of malice or bad faith. We think it is clear that
the mere carelessness of the carrier's driver does not per se constitute or justify an inference of malice or bad faith on the
part of the carrier; and in the case at bar there is no other evidence of such malice to support the award of moral damages
by the Court of Appeals. To award moral damages for breach of contract, therefore, without proof of bad faith or malice on
the part of the defendant, as required by Art. 2220, would be to violate the clear provisions of the law, and constitute
unwarranted judicial legislation.

xxx xxx xxx

The distinction between fraud, bad faith or malice in the sense of deliberate or wanton wrong doing and negligence (as
mere carelessness) is too fundamental in our law to be ignored (Arts. 1170-1172); their consequences being clearly
differentiated by the Code.

Art. 2201. In contracts and quasi-contracts, the damages for which the obligor who acted in good faith is liable shall
be those that are the natural and probable consequences of the breach of the obligation, and which the parties have
foreseen or could have reasonably foreseen at the time the obligation was constituted.

In case of fraud, bad faith, malice or wanton attitude, the obligor shall be responsible for all damages which may be
reasonably attributed to the non-performance of the obligation.

It is to be presumed, in the absence of statutory provision to the contrary, that this difference was in the mind of the
lawmakers when in Art. 2220 they limited recovery of moral damages to breaches of contract in bad faith. It is true that
negligence may be occasionally so gross as to amount to malice; but the fact must be shown in evidence, and a carrier's
bad faith is not to be lightly inferred from a mere finding that the contract was breached through negligence of the carrier's
employees.

The Court has not in the process overlooked another rule that a quasi-delict can be the cause for breaching a contract
that might thereby permit the application of applicable principles on tort 9 even where there is a pre-existing contract
between the plaintiff and the defendant (Phil. Airlines vs. Court of Appeals, 106 SCRA 143; Singson vs. Bank of Phil.
Islands, 23 SCRA 1117; and Air France vs. Carrascoso, 18 SCRA 155). This doctrine, unfortunately, cannot improve
private respondents' case for it can aptly govern only where the act or omission complained of would constitute an
actionable tort independently of the contract. The test (whether a quasi-delict can be deemed to underlie the breach of a
contract) can be stated thusly: Where, without a pre-existing contract between two parties, an act or omission can
nonetheless amount to an actionable tort by itself, the fact that the parties are contractually bound is no bar to the
application of quasi-delict provisions to the case. Here, private respondents' damage claim is predicated solely on their
contractual relationship; without such agreement, the act or omission complained of cannot by itself be held to stand as a
separate cause of action or as an independent actionable tort.

The Court finds, therefore, the award of moral damages made by the court a quo, affirmed by the appellate court, to be
inordinate and substantially devoid of legal basis.

Exemplary or corrective damages, in turn, are intended to serve as an example or as correction for the public good in
addition to moral, temperate, liquidated or compensatory damages (Art. 2229, Civil Code; see Prudenciado vs. Alliance
Transport System, 148 SCRA 440; Lopez vs. Pan American World Airways, 16 SCRA 431). In criminal offenses,
exemplary damages are imposed when the crime is committed with one or more aggravating circumstances (Art. 2230,
Civil Code). In quasi-delicts, such damages are granted if the defendant is shown to have been so guilty of gross
negligence as to approximate malice (See Art. 2231, Civil Code; CLLC E.G. Gochangco Workers Union vs. NLRC, 161
SCRA 655; Globe Mackay Cable and Radio Corp. vs. CA, 176 SCRA 778). In contracts and quasi-contracts, the court
may award exemplary damages if the defendant is found to have acted in a wanton, fraudulent, reckless, oppressive, or
malevolent manner (Art. 2232, Civil Code; PNB vs. Gen. Acceptance and Finance Corp., 161 SCRA 449).
 130

Given the above premises and the factual circumstances here obtaining, it would also be just as arduous to sustain the
exemplary damages granted by the courts below (see De Leon vs. Court of Appeals, 165 SCRA 166).

Nevertheless, the bank's failure, even perhaps inadvertent, to honor its credit card issued to private respondent Luis
should entitle him to recover a measure of damages sanctioned under Article 2221 of the Civil Code providing thusly:

Art. 2221. Nominal damages are adjudicated in order that a right of the plaintiff, which has been violated or invaded
by the defendant, may be vindicated or recognized, and not for the purpose of indemnifying the plaintiff for any loss
suffered by him.

Reasonable attorney's fees may be recovered where the court deems such recovery to be just and equitable (Art. 2208,
Civil Code). We see no issue of sound discretion on the part of the appellate court in allowing the award thereof by the
trial court.

WHEREFORE, the petition for review is given due course. The appealed decision is MODIFIED by deleting the award of
moral and exemplary damages to private respondents; in its stead, petitioner is ordered to pay private respondent Luis A.
Luna an amount of P5,000.00 by way of nominal damages. In all other respects, the appealed decision is AFFIRMED. No
costs.

SO ORDERED.
 131

G.R. No. 84698 February 4, 1992

PHILIPPINE SCHOOL OF BUSINESS ADMINISTRATION, JUAN D. LIM, BENJAMIN P. PAULINO,

ANTONIO M. MAGTALAS, COL. PEDRO SACRO and LT. M. SORIANO, petitioners,
vs.
COURT OF APPEALS, HON. REGINA ORDOEZ-BENITEZ, in her capacity as Presiding Judge of
Branch 47, Regional Trial Court, Manila, SEGUNDA R. BAUTISTA and ARSENIA D. BAUTISTA,
respondents.

Balgos and Perez for petitioners.

Collantes, Ramirez & Associates for private respondents.

PADILLA, J.:

A stabbing incident on 30 August 1985 which caused the death of Carlitos Bautista while on the second-floor premises of
the Philippine School of Business Administration (PSBA) prompted the parents of the deceased to file suit in the Regional
Trial Court of Manila (Branch 47) presided over by Judge (now Court of Appeals justice) Regina Ordoez-Benitez, for
damages against the said PSBA and its corporate officers. At the time of his death, Carlitos was enrolled in the third year
commerce course at the PSBA. It was established that his assailants were not members of the school's academic
community but were elements from outside the school.

Specifically, the suit impleaded the PSBA and the following school authorities: Juan D. Lim (President), Benjamin P.
Paulino (Vice-President), Antonio M. Magtalas (Treasurer/Cashier), Col. Pedro Sacro (Chief of Security) and a Lt. M.
Soriano (Assistant Chief of Security). Substantially, the plaintiffs (now private respondents) sought to adjudge them liable
for the victim's untimely demise due to their alleged negligence, recklessness and lack of security precautions, means and
methods before, during and after the attack on the victim. During the proceedings a quo, Lt. M. Soriano terminated his
relationship with the other petitioners by resigning from his position in the school.

Defendants a quo (now petitioners) sought to have the suit dismissed, alleging that since they are presumably sued under
Article 2180 of the Civil Code, the complaint states no cause of action against them, as jurisprudence on the subject is to
the effect that academic institutions, such as the PSBA, are beyond the ambit of the rule in the afore-stated article.

The respondent trial court, however, overruled petitioners' contention and thru an order dated 8 December 1987, denied
their motion to dismiss. A subsequent motion for reconsideration was similarly dealt with by an order dated 25 January
1988. Petitioners then assailed the trial court's disposition before the respondent appellate court which, in a decision *
promulgated on 10 June 1988, affirmed the trial court's orders. On 22 August 1988, the respondent appellate court
resolved to deny the petitioners' motion for reconsideration. Hence, this petition.

At the outset, it is to be observed that the respondent appellate court primarily anchored its decision on the law of quasi-
delicts, as enunciated in Articles 2176 and 2180 of the Civil Code. 1 Pertinent portions of the appellate court's now
assailed ruling state:

Article 2180 (formerly Article 1903) of the Civil Code is an adoption from the old Spanish Civil Code. The comments of
Manresa and learned authorities on its meaning should give way to present day changes. The law is not fixed and flexible
(sic); it must be dynamic. In fact, the greatest value and significance of law as a rule of conduct in (sic) its flexibility to
adopt to changing social conditions and its capacity to meet the new challenges of progress.

Construed in the light of modern day educational system, Article 2180 cannot be construed in its narrow concept as held
in the old case of Exconde vs. Capuno 2 and Mercado vs. Court of Appeals; 3 hence, the ruling in the Palisoc 4 case that
it should apply to all kinds of educational institutions, academic or vocational.

At any rate, the law holds the teachers and heads of the school staff liable unless they relieve themselves of such liability
pursuant to the last paragraph of Article 2180 by "proving that they observed all the diligence to prevent damage." This
can only be done at a trial on the merits of the case. 5
 132

While we agree with the respondent appellate court that the motion to dismiss the complaint was correctly denied and the
complaint should be tried on the merits, we do not however agree with the premises of the appellate court's ruling.

Article 2180, in conjunction with Article 2176 of the Civil Code, establishes the rule of in loco parentis. This Court
discussed this doctrine in the afore-cited cases of Exconde, Mendoza, Palisoc and, more recently, in Amadora vs. Court
of Appeals. 6 In all such cases, it had been stressed that the law (Article 2180) plainly provides that the damage should
have been caused or inflicted by pupils or students of he educational institution sought to be held liable for the acts of its
pupils or students while in its custody. However, this material situation does not exist in the present case for, as earlier
indicated, the assailants of Carlitos were not students of the PSBA, for whose acts the school could be made liable.

However, does the appellate court's failure to consider such material facts mean the exculpation of the petitioners from
liability? It does not necessarily follow.

When an academic institution accepts students for enrollment, there is established a contract between them, resulting in
bilateral obligations which both parties are bound to comply with. 7 For its part, the school undertakes to provide the
student with an education that would presumably suffice to equip him with the necessary tools and skills to pursue higher
education or a profession. On the other hand, the student covenants to abide by the school's academic requirements and
observe its rules and regulations.

Institutions of learning must also meet the implicit or "built-in" obligation of providing their students with an atmosphere
that promotes or assists in attaining its primary undertaking of imparting knowledge. Certainly, no student can absorb the
intricacies of physics or higher mathematics or explore the realm of the arts and other sciences when bullets are flying or
grenades exploding in the air or where there looms around the school premises a constant threat to life and limb.
Necessarily, the school must ensure that adequate steps are taken to maintain peace and order within the campus
premises and to prevent the breakdown thereof.

Because the circumstances of the present case evince a contractual relation between the PSBA and Carlitos Bautista, the
rules on quasi-delict do not really govern. 8 A perusal of Article 2176 shows that obligations arising from quasi-delicts or
tort, also known as extra-contractual obligations, arise only between parties not otherwise bound by contract, whether
express or implied. However, this impression has not prevented this Court from determining the existence of a tort even
when there obtains a contract. In Air France vs. Carrascoso (124 Phil. 722), the private respondent was awarded
damages for his unwarranted expulsion from a first-class seat aboard the petitioner airline. It is noted, however, that the
Court referred to the petitioner-airline's liability as one arising from tort, not one arising from a contract of carriage. In
effect, Air France is authority for the view that liability from tort may exist even if there is a contract, for the act that breaks
the contract may be also a tort. (Austro-America S.S. Co. vs. Thomas, 248 Fed. 231).

This view was not all that revolutionary, for even as early as 1918, this Court was already of a similar mind. In Cangco vs.
Manila Railroad (38 Phil. 780), Mr. Justice Fisher elucidated thus:

The field of non-contractual obligation is much broader than that of contractual obligation, comprising, as it does, the
whole extent of juridical human relations. These two fields, figuratively speaking, concentric; that is to say, the mere fact
that a person is bound to another by contract does not relieve him from extra-contractual liability to such person. When
such a contractual relation exists the obligor may break the contract under such conditions that the same act which
constitutes a breach of the contract would have constituted the source of an extra-contractual obligation had no contract
existed between the parties.

Immediately what comes to mind is the chapter of the Civil Code on Human Relations, particularly Article 21, which
provides:

Any person who wilfully causes loss or injury to another in a manner that is contrary to morals, good custom or public
policy shall compensate the latter for the damage. (emphasis supplied).

Air France penalized the racist policy of the airline which emboldened the petitioner's employee to forcibly oust the private
respondent to cater to the comfort of a white man who allegedly "had a better right to the seat." In Austro-American,
supra, the public embarrassment caused to the passenger was the justification for the Circuit Court of Appeals, (Second
Circuit), to award damages to the latter. From the foregoing, it can be concluded that should the act which breaches a
contract be done in bad faith and be violative of Article 21, then there is a cause to view the act as constituting a quasi-
delict.
 133

In the circumstances obtaining in the case at bar, however, there is, as yet, no finding that the contract between the
school and Bautista had been breached thru the former's negligence in providing proper security measures. This would be
for the trial court to determine. And, even if there be a finding of negligence, the same could give rise generally to a
breach of contractual obligation only. Using the test of Cangco, supra, the negligence of the school would not be relevant
absent a contract. In fact, that negligence becomes material only because of the contractual relation between PSBA and
Bautista. In other words, a contractual relation is a condition sine qua non to the school's liability. The negligence of the
school cannot exist independently of the contract, unless the negligence occurs under the circumstances set out in Article
21 of the Civil Code.

This Court is not unmindful of the attendant difficulties posed by the obligation of schools, above-mentioned, for
conceptually a school, like a common carrier, cannot be an insurer of its students against all risks. This is specially true in
the populous student communities of the so-called "university belt" in Manila where there have been reported several
incidents ranging from gang wars to other forms of hooliganism. It would not be equitable to expect of schools to
anticipate all types of violent trespass upon their premises, for notwithstanding the security measures installed, the same
may still fail against an individual or group determined to carry out a nefarious deed inside school premises and environs.
Should this be the case, the school may still avoid liability by proving that the breach of its contractual obligation to the
students was not due to its negligence, here statutorily defined to be the omission of that degree of diligence which is
required by the nature of the obligation and corresponding to the circumstances of persons, time and place. 9

As the proceedings a quo have yet to commence on the substance of the private respondents' complaint, the record is
bereft of all the material facts. Obviously, at this stage, only the trial court can make such a determination from the
evidence still to unfold.

WHEREFORE, the foregoing premises considered, the petition is DENIED. The court of origin (RTC, Manila, Br. 47) is
hereby ordered to continue proceedings consistent with this ruling of the Court. Costs against the petitioners.

SO ORDERED.
 134

G.R. No. 98695, January 27, 1993

JUAN J. SYQUIA, CORAZON C. SYQUIA, CARLOTA C. SYQUIA, CARLOS C. SYQUIA AND ANTHONY C.
SYQUIA, PETITIONERS, VS. THE HONORABLE COURT OF APPEALS, AND THE MANILA MEMORIAL
PARK CEMETERY, INC., RESPONDENTS.

DECISION
CAMPOS, JR., J.:

Herein petitioners, Juan J. Syquia and Corazon C. Syquia, Carlota C. Syquia, Carlos C. Syquia, and Anthony Syquia,
were the parents and siblings, respectively, of the deceased Vicente Juan Syquia. On March 5, 1979, they filed a
complaint [1] in the then Court of First Instance against herein private respondent, Manila Memorial Park Cemetery, Inc.
for recovery of damages arising from breach of contract and/or quasi-delict. The trial court dismissed the complaint.

The antecedent facts, as gathered by the respondent court, are as follows:

On March 5, 1979, Juan, Corazon, Carlota and Anthony all surnamed Syquia, plaintiffs-appellants herein, filed a
complaint for damages against defendant-appellee, Manila Memorial Park Cemetery, Inc.

The complaint alleged among others, that pursuant to a Deed of Sale (Contract No. 6885) dated August 27, 1969 and
Interment Order No. 7106 dated July 21, 1978 executed between plaintiff-appellant Juan J. Syquia and defendant-
appellee, the former, father of deceased Vicente Juan J. Syquia authorized and instructed defendant-appellee to inter the
remains of deceased in the Manila Memorial Park Cemetery in the morning of July 25, 1978 conformably and in
accordance with defendant-appellants (sic) interment procedures; that on September 4, 1978, preparatory to transferring
the said remains to a newly purchased family plot also at the Manila Memorial Park Cemetery, the concrete vault
encasing the coffin of the deceased was removed from its niche underground with the assistance of certain employees of
defendant-appellant (sic); that as the concrete vault was being raised to the surface, plaintiffs-appellants discovered that
the concrete vault had a hole approximately three (3) inches in diameter near the bottom of one of the walls closing out
the width of the vault on one end and that for a certain length of time (one hour, more or less), water drained out of the
hole; that because of the aforesaid discovery, plaintiffs-appellants became agitated and upset with concern that the water
which had collected inside the vault might have risen as it in fact did rise, to the level of the coffin and flooded the same as
well as the remains of the deceased with ill effects thereto; that pursuant to an authority granted by the Municipal Court of
Paraaque, Metro Manila on September 14, 1978, plaintiffs-appellants with the assistance of licensed morticians and
certain personnel of defendant-appellant (sic) caused the opening of the concrete vault on September 15, 1978; that upon
opening the vault, the following became apparent to the plaintiffs-appellants: (a) the interior walls of the concrete vault
showed evidence of total flooding; (b) the coffin was entirely damaged by water, filth and silt causing the wooden parts to
warp and separate and to crack the viewing glass panel located directly above the head and torso of the deceased; (c) the
entire lining of the coffin, the clothing of the deceased, and the exposed parts of the deceaseds remains were damaged
and soiled by the action of the water and silt and were also coated with filth.

Due to the alleged unlawful and malicious breach by the defendant-appellee of its obligation to deliver a defect-free
concrete vault designed to protect the remains of the deceased and the coffin against the elements which resulted in the
desecration of deceaseds grave and in the alternative, because of defendant-appellees gross negligence conformably to
Article 2176 of the New Civil Code in failing to seal the concrete vault, the complaint prayed that judgment be rendered
ordering defendant-appellee to pay plaintiffs-appellants P30,000.00 for actual damages, P500,000.00 for moral damages,
exemplary damages in the amount determined by the court, 20% of defendant-appellees total liability as attorneys fees,
and expenses of litigation and costs of suit.[2]
In dismissing the complaint, the trial court held that the contract between the parties did not guarantee that the cement
vault would be waterproof; that there could be no quasi-delict because the defendant was not guilty of any fault or
negligence, and because there was a pre?existing contractual relation between the Syquias and defendant Manila
Memorial Park Cemetery, Inc.. The trial court also noted that the father himself, Juan Syquia, chose the gravesite despite
knowing that said area had to be constantly sprinkled with water to keep the grass green and that water would eventually
seep through the vault. The trial court also accepted the explanation given by defendant for boring a hole at the bottom
side of the vault: The hole had to be bored through the concrete vault because if it has no hole the vault will (sic) float and
the grave would be filled with water and the digging would caved (sic) in the earth, the earth would caved (sic) in the (sic)
fill up the grave.[3]
 135

From this judgment, the Syquias appealed. They alleged that the trial court erred in holding that the contract allowed the
flooding of the vault; that there was no desecration; that the boring of the hole was justifiable; and in not awarding
damages.

The Court of Appeals in the Decision[4] dated December 7, 1990 however, affirmed the judgment of dismissal. Petitioners
motion for reconsideration was denied in a Resolution dated April 25, 1991.[5]

Unsatisfied with the respondent Courts decision, the Syquias filed the instant petition. They allege herein that the Court of
Appeals committed the following errors when it:

1. held that the contract and the Rules and Regulations of private respondent allowed the flooding of the vault and the
entrance thereto of filth and silt;

2. held that the act of boring a hole was justifiable and corollarily, when it held that no act of desecration was committed;

3. overlooked and refused to consider relevant, undisputed facts, such as those which have been stipulated upon by the
parties, testified to by private respondents witnesses, and admitted in the answer, which could have justified a different
conclusion;

4. held that there was no tort because of a pre-existing contract and the absence of fault/negligence; and

5. did not award the P25,000.00 actual damages which was agreed upon by the parties, moral and exemplary damages,
and attorneys fees.
At the bottom of the entire proceedings is the act of boring a hole by private respondent on the vault of the deceased kin
of the bereaved petitioners. The latter allege that such act was either a breach of private respondents contractual
obligation to provide a sealed vault, or, in the alternative, a negligent act which constituted a quasi-delict. Nonetheless,
petitioners claim that whatever kind of negligence private respondent has committed, the latter is liable for desecrating the
grave of petitioners dead.

In the instant case, We are called upon to determine whether the Manila Memorial Park Cemetery, Inc. breached its
contract with petitioners; or, alternatively, whether private respondent was guilty of a tort.

We understand the feelings of petitioners and empathize with them. Unfortunately, however, We are more inclined to
answer the foregoing questions in the negative. There is not enough ground, both in fact and in law, to justify a reversal of
the decision of the respondent Court and to uphold the pleas of the petitioners.

With respect to herein petitioners averment that private respondent has committed culpa aquiliana, the Court of Appeals
found no negligent act on the part of private respondent to justify an award of damages against it. Although a pre-existing
contractual relation between the parties does not preclude the existence of a culpa aquiliana, We find no reason to
disregard the respondents Court finding that there was no negligence.

Article 2176. Whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay for
the damage done. Such fault or negligence, if there is no pre-existing contractual relation between the parties, is called a
quasi-delict x x x. (Underscoring Ours).

In this case, it has been established that the Syquias and the Manila Memorial Park Cemetery, Inc., entered into a
contract entitled Deed of Sale and Certificate of Perpetual Care[6] on August 27, 1969. That agreement governed the
relations of the parties and defined their respective rights and obligations. Hence, had there been actual negligence on the
part of the Manila Memorial Park Cemetery, Inc., it would be held liable not for a quasi-delict or culpa aquiliana, but for
culpa contractual as provided by Article 1170 of the Civil Code, to wit:

Those who in the performance of their obligations are guilty of fraud, negligence, or delay, and those who in any manner
contravene the tenor thereof, are liable for damages.
The Manila Memorial Park Cemetery, Inc. bound itself to provide the concrete box to be used in the interment. Rule 17 of
the Rules and Regulations of private respondent provides that:

Rule 17. Every earth interment shall be made enclosed in a concrete box, or in an outer wall of stone, brick or concrete,
the actual installment of which shall be made by the employees of the Association.[7]
 136

Pursuant to this above-mentioned Rule, a concrete vault was provided on July 27, 1978, the day before the interment, and
was on the same day, installed by private respondents employees in the grave which was dug earlier. After the burial, the
vault was covered by a cement lid.

Petitioners however claim that private respondent breached its contract with them as the latter held out in the brochure it
distributed that the x x x lot may hold single or double internment (sic) underground in sealed concrete vault.[8]
Petitioners claim that the vault provided by private respondent was not sealed, that is, not waterproof. Consequently,
water seeped through the cement enclosure and damaged everything inside it.

We do not agree. There was no stipulation in the Deed of Sale and Certificate of Perpetual Care and in the Rules and
Regulations of the Manila Memorial Park Cemetery, Inc. that the vault would be waterproof. Private respondents witness,
Mr. Dexter Heuschkel, explained that the term sealed meant closed.[9] On the other hand, the word seal is defined as
x x x any of various closures or fastenings x x x that cannot be opened without rupture and that serve as a check against
tampering or unauthorized opening.[10] The meaning that has been given by private respondent to the word conforms
with the cited dictionary definition. Moreover, it is also quite clear that sealed cannot be equated with waterproof. Well
settled is the rule that when the terms of the contract are clear and leave no doubt as to the intention of the contracting
parties, then the literal meaning of the stipulation shall control.[11] Contracts should be interpreted according to their literal
meaning and should not be interpreted beyond their obvious intendment.[12] As ruled by the respondent Court:

When plaintiff-appellant Juan J. Syquia affixed his signature to the Deed of Sale (Exhibit A) and the attached Rules and
Regulations (Exhibit 1), it can be assumed that he has accepted defendant-appellees undertaking to merely provide
concrete vault. He can not now claim that said concrete vault must in addition, also be waterproofed (sic). It is basic that
the parties are bound by the terms of their contract, which is the law between them (Rizal Commercial Banking
Corporation vs. Court of Appeals, et al. 178 SCRA 739). Where there is nothing in the contract which is contrary to law,
morals, good customs, public order, or public policy, the validity of the contract must be sustained (Phil. American
Insurance Co. vs. Judge Pineda 175 SCRA 416). Consonant with this ruling, a contracting party cannot incur a liability
more than what is expressly specified in his undertaking. It cannot be extended by implication, beyond the terms of the
contract (Rizal Commercial Banking Corporation vs. Court of Appeals, supra). And as a rule of evidence, where the terms
of an agreement are reduced to writing, the document itself, being constituted by the parties as the expositor of their
intentions, is the only instrument of evidence in respect of that agreement which the law will recognize, so long as its (sic)
exists for the purpose of evidence (Starkie, Ev., pp. 648, 655, Kasheenath vs. Chundy, 5 W.R. 68 cited in Francisco,
Revised Rules of Court in the Phil. p. 153, 1973 Ed.). And if the terms of the contract are clear and leave no doubt upon
the intention of the contracting parties, the literal meaning of its stipulations shall control (Santos vs. CA, et al., G.R. No.
83664, Nov. 13, 1989; Prudential Bank & Trust Co. vs. Community Builders Co., Inc., 165 SCRA 285; Balatero vs. IAC,
154 SCRA 530).[13]
We hold, therefore, that private respondent did not breach the tenor of its obligation to the Syquias. While this may be so,
can private respondent be liable for culpa aquiliana for boring the hole on the vault? It cannot be denied that the hole
made possible the entry of more water and soil than was natural had there been no hole.

The law defines negligence as the omission of that diligence which is required by the nature of the obligation and
corresponds with the circumstances of the persons, of the time and of the place. [14] In the absence of stipulation or legal
provision providing the contrary, the deligence to be observed in the performance of the obligation is that which is
expected of a good father of a family.

The circumstances surrounding the commission of the assailed act - boring of the hole - negate the allegation of
negligence. The reason for the act was explained by Henry Flores, Interment Foreman, who said that:

Q: It has been established in this particular case that a certain Vicente Juan Syquia was interred on July 25, 1978 at the
Paraaque Cemetery of the Manila Memorial Park Cemetery, Inc., will you please tell the Hon. Court what or whether you
have participation in connection with said internment (sic)?

A: A day before Juan (sic) Syquia was buried our personnel dug a grave. After digging the next morning a vault was taken
and placed in the grave and when the vault was placed on the grave a hole was placed on the vault so that water could
come into the vault because it was raining heavily then because the vault has no hole the vault will float and the grave
would be filled with water and the digging would caved (sic) in and the earth, the earth would (sic) caved in and fill up the
grave.[15] (Underscoring ours)
Except for the foremans opinion that the concrete vault may float should there be a heavy rainfall, from the above-
mentioned explanation, private respondent has exercised the diligence of a good father of a family in preventing the
accumulation of water inside the vault which would have resulted in the caving in of earth around the grave filling the
same with earth.
 137

Thus, finding no evidence of negligence on the part of private respondent, We find no reason to award damages in favor
of petitioners.

In the light of the foregoing facts, and construed in the language of the applicable laws and jurisprudence, We are
constrained to AFFIRM in toto the decision of the respondent Court of Appeals dated December 7, 1990. No costs.
SO ORDERED.
 138

G.R. No. 145804, February 06, 2003

LIGHT RAIL TRANSIT AUTHORITY & RODOLFO ROMAN, PETITIONERS, VS. MARJORIE NAVIDAD,
HEIRS OF THE LATE NICANOR NAVIDAD & PRUDENT SECURITY AGENCY, RESPONDENTS.

DECISION
VITUG, J.:

The case before the Court is an appeal from the decision and resolution of the Court of Appeals, promulgated on 27 April
2000 and 10 October 2000, respectively, in CA-G.R. CV No. 60720, entitled Marjorie Navidad and Heirs of the Late
Nicanor Navidad vs. Rodolfo Roman, et. al., which has modified the decision of 11 August 1998 of the Regional Trial
Court, Branch 266, Pasig City, exonerating Prudent Security Agency (Prudent) from liability and finding Light Rail Transit
Authority (LRTA) and Rodolfo Roman liable for damages on account of the death of Nicanor Navidad.

On 14 October 1993, about half an hour past seven oclock in the evening, Nicanor Navidad, then drunk, entered the
EDSA LRT station after purchasing a token (representing payment of the fare). While Navidad was standing on the
platform near the LRT tracks, Junelito Escartin, the security guard assigned to the area approached Navidad. A
misunderstanding or an altercation between the two apparently ensued that led to a fist fight. No evidence, however, was
adduced to indicate how the fight started or who, between the two, delivered the first blow or how Navidad later fell on the
LRT tracks. At the exact moment that Navidad fell, an LRT train, operated by petitioner Rodolfo Roman, was coming in.
Navidad was struck by the moving train, and he was killed instantaneously.

On 08 December 1994, the widow of Nicanor, herein respondent Marjorie Navidad, along with her children, filed a
complaint for damages against Junelito Escartin, Rodolfo Roman, the LRTA, the Metro Transit Organization, Inc. (Metro
Transit), and Prudent for the death of her husband. LRTA and Roman filed a counterclaim against Navidad and a cross-
claim against Escartin and Prudent. Prudent, in its answer, denied liability and averred that it had exercised due diligence
in the selection and supervision of its security guards.

The LRTA and Roman presented their evidence while Prudent and Escartin, instead of presenting evidence, filed a
demurrer contending that Navidad had failed to prove that Escartin was negligent in his assigned task. On 11 August
1998, the trial court rendered its decision; it adjudged:

WHEREFORE, judgment is hereby rendered in favor of the plaintiffs and against the defendants Prudent Security and
Junelito Escartin ordering the latter to pay jointly and severally the plaintiffs the following:

a) 1) Actual damages of P44,830.00;

2) Compensatory damages of P443,520.00;

3) Indemnity for the death of Nicanor Navidad in the sum of P50,000.00;

b) Moral damages of P50,000.00;

c) Attorneys fees of P20,000;

d) Costs of suit.

The complaint against defendants LRTA and Rodolfo Roman are dismissed for lack of merit.

The compulsory counterclaim of LRTA and Roman are likewise dismissed.[1]

 139

Prudent appealed to the Court of Appeals. On 27 August 2000, the appellate court promulgated its now assailed decision
exonerating Prudent from any liability for the death of Nicanor Navidad and, instead, holding the LRTA and Roman jointly
and severally liable thusly:

WHEREFORE, the assailed judgment is hereby MODIFIED, by exonerating the appellants from any liability for the death
of Nicanor Navidad, Jr. Instead, appellees Rodolfo Roman and the Light Rail Transit Authority (LRTA) are held liable for
his death and are hereby directed to pay jointly and severally to the plaintiffs-appellees, the following amounts:

a) P44,830.00 as actual damages;

b) P50,000.00 as nominal damages;

c) P50,000.00 as moral damages;

d) P50,000.00 as indemnity for the death of the deceased; and

e) P20,000.00 as and for attorneys fees.[2]

The appellate court ratiocinated that while the deceased might not have then as yet boarded the train, a contract of
carriage theretofore had already existed when the victim entered the place where passengers were supposed to be after
paying the fare and getting the corresponding token therefor. In exempting Prudent from liability, the court stressed that
there was nothing to link the security agency to the death of Navidad. It said that Navidad failed to show that Escartin
inflicted fist blows upon the victim and the evidence merely established the fact of death of Navidad by reason of his
having been hit by the train owned and managed by the LRTA and operated at the time by Roman. The appellate court
faulted petitioners for their failure to present expert evidence to establish the fact that the application of emergency brakes
could not have stopped the train.

The appellate court denied petitioners motion for reconsideration in its resolution of 10 October 2000.

In their present recourse, petitioners recite alleged errors on the part of the appellate court; viz:

I.

THE HONORABLE COURT OF APPEALS GRAVELY ERRED BY DISREGARDING THE FINDINGS OF FACTS BY THE
TRIAL COURT

II.

THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN FINDING THAT PETITIONERS ARE LIABLE FOR THE
DEATH OF NICANOR NAVIDAD, JR.

III.

THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN FINDING THAT RODOLFO ROMAN IS AN
EMPLOYEE OF LRTA.[3]
Petitioners would contend that the appellate court ignored the evidence and the factual findings of the trial court by
holding them liable on the basis of a sweeping conclusion that the presumption of negligence on the part of a common
carrier was not overcome. Petitioners would insist that Escartins assault upon Navidad, which caused the latter to fall on
the tracks, was an act of a stranger that could not have been foreseen or prevented. The LRTA would add that the
appellate courts conclusion on the existence of an employer-employee relationship between Roman and LRTA lacked
basis because Roman himself had testified being an employee of Metro Transit and not of the LRTA.

Respondents, supporting the decision of the appellate court, contended that a contract of carriage was deemed created
from the moment Navidad paid the fare at the LRT station and entered the premises of the latter, entitling Navidad to all
the rights and protection under a contractual relation, and that the appellate court had correctly held LRTA and Roman
liable for the death of Navidad in failing to exercise extraordinary diligence imposed upon a common carrier.
 140

Law and jurisprudence dictate that a common carrier, both from the nature of its business and for reasons of public policy,
is burdened with the duty of exercising utmost diligence in ensuring the safety of passengers.[4] The Civil Code,
governing the liability of a common carrier for death of or injury to its passengers, provides:

Article 1755. A common carrier is bound to carry the passengers safely as far as human care and foresight can provide,
using the utmost diligence of very cautious persons, with a due regard for all the circumstances.

Article 1756. In case of death of or injuries to passengers, common carriers are presumed to have been at fault or to
have acted negligently, unless they prove that they observed extraordinary diligence as prescribed in articles 1733 and
1755.

Article 1759. Common carriers are liable for the death of or injuries to passengers through the negligence or willful acts of
the formers employees, although such employees may have acted beyond the scope of their authority or in violation of
the orders of the common carriers.

This liability of the common carriers does not cease upon proof that they exercised all the diligence of a good father of a
family in the selection and supervision of their employees.

Article 1763. A common carrier is responsible for injuries suffered by a passenger on account of the willful acts or
negligence of other passengers or of strangers, if the common carriers employees through the exercise of the diligence of
a good father of a family could have prevented or stopped the act or omission.

The law requires common carriers to carry passengers safely using the utmost diligence of very cautious persons with
due regard for all circumstances.[5] Such duty of a common carrier to provide safety to its passengers so obligates it not
only during the course of the trip but for so long as the passengers are within its premises and where they ought to be in
pursuance to the contract of carriage.[6] The statutory provisions render a common carrier liable for death of or injury to
passengers (a) through the negligence or wilful acts of its employees or b) on account of wilful acts or negligence of other
passengers or of strangers if the common carriers employees through the exercise of due diligence could have prevented
or stopped the act or omission.[7] In case of such death or injury, a carrier is presumed to have been at fault or been
negligent, and [8] by simple proof of injury, the passenger is relieved of the duty to still establish the fault or negligence of
the carrier or of its employees and the burden shifts upon the carrier to prove that the injury is due to an unforeseen event
or to force majeure.[9] In the absence of satisfactory explanation by the carrier on how the accident occurred, which
petitioners, according to the appellate court, have failed to show, the presumption would be that it has been at fault,[10] an
exception from the general rule that negligence must be proved.[11]

The foundation of LRTAs liability is the contract of carriage and its obligation to indemnify the victim arises from the
breach of that contract by reason of its failure to exercise the high diligence required of the common carrier. In the
discharge of its commitment to ensure the safety of passengers, a carrier may choose to hire its own employees or avail
itself of the services of an outsider or an independent firm to undertake the task. In either case, the common carrier is not
relieved of its responsibilities under the contract of carriage.

Should Prudent be made likewise liable? If at all, that liability could only be for tort under the provisions of Article 2176[12]
and related provisions, in conjunction with Article 2180,[13] of the Civil Code. The premise, however, for the employers
liability is negligence or fault on the part of the employee. Once such fault is established, the employer can then be made
liable on the basis of the presumption juris tantum that the employer failed to exercise diligentissimi patris families in the
selection and supervision of its employees. The liability is primary and can only be negated by showing due diligence in
the selection and supervision of the employee, a factual matter that has not been shown. Absent such a showing, one
might ask further, how then must the liability of the common carrier, on the one hand, and an independent contractor, on
the other hand, be described? It would be solidary. A contractual obligation can be breached by tort and when the same
act or omission causes the injury, one resulting in culpa contractual and the other in culpa aquiliana, Article 2194[14] of
the Civil Code can well apply.[15] In fine, a liability for tort may arise even under a contract, where tort is that which
breaches the contract.[16] Stated differently, when an act which constitutes a breach of contract would have itself
constituted the source of a quasi-delictual liability had no contract existed between the parties, the contract can be said to
have been breached by tort, thereby allowing the rules on tort to apply.[17]

Regrettably for LRT, as well as perhaps the surviving spouse and heirs of the late Nicanor Navidad, this Court is
concluded by the factual finding of the Court of Appeals that there is nothing to link (Prudent) to the death of Nicanor
(Navidad), for the reason that the negligence of its employee, Escartin, has not been duly proven x x x. This finding of the
appellate court is not without substantial justification in our own review of the records of the case.
 141

There being, similarly, no showing that petitioner Rodolfo Roman himself is guilty of any culpable act or omission, he must
also be absolved from liability. Needless to say, the contractual tie between the LRT and Navidad is not itself a juridical
relation between the latter and Roman; thus, Roman can be made liable only for his own fault or negligence.

The award of nominal damages in addition to actual damages is untenable. Nominal damages are adjudicated in order
that a right of the plaintiff, which has been violated or invaded by the defendant, may be vindicated or recognized, and not
for the purpose of indemnifying the plaintiff for any loss suffered by him.[18] It is an established rule that nominal damages
cannot co-exist with compensatory damages.[19]

WHEREFORE, the assailed decision of the appellate court is AFFIRMED with MODIFICATION but only in that (a) the
award of nominal damages is DELETED and (b) petitioner Rodolfo Roman is absolved from liability. No costs.

SO ORDERED.