4.

More than seven (7) years ago, several checks were issued by
[G.R. Nos. 92029-30 : December 20, 1990.]
192 SCRA 507
NICANOR G. DE GUZMAN, JR., Petitioner, vs. HON. COURT OF
APPEALS, Former Fifth Division, HON. REGIONAL TRIAL COURT,
National Capital Judicial Region, Br. 48, Manila, and ENRIQUE KP.
TAN, Respondents.
DECISION
GANCAYCO, J.:
plaintiff to defendant in exchange for cash which probably amounted
to P280,900.00. In due time, these checks were either fully paid,
settled, extinguished or condoned by agreement of the parties, and
for which reason, plaintiff did not anymore redeem the checks
precisely because they have been close and mutual friends.
5.a. Lately, however, plaintiff received from defendant's
lawyer a demand letter dated 1988 supposedly detailing out
therein the former's obligation to the latter, as follows:
Principal Amount P280,900.00

A cause of action is the fact or combination of facts which affords a party a (Value of 66 dishonored checks)
right to judicial interference in his behalf. 1 An action means an ordinary suit
in a court of justice, by which one party prosecutes another for the
Legal Interest at 235,956.00
enforcement or protection of a right, or the prosecution or redress of a wrong.
2
1% per Month (For 84
The cause of action must always consist of two elements: (1) the plaintiff's
primary right and the defendant's corresponding primary duty, whatever may
months or 7 years)
be the subject to which they relate person, character, property or contract;
and (2) the delict or wrongful act or omission of the defendant, by which the
primary right and duty have been violated. 3 The cause of action is Attorney's Collection 51,685.00
determined not by the prayer of the complaint but by the facts alleged. 4
Fee (At 10% Only)
The term right of action is the right to commence and maintain an action. 5
In the law on pleadings, right of action is distinguished from cause of action
in that the former is a remedial right belonging to some persons, while the
latter is a formal statement of the operative facts that give rise to such
remedial right. The former is a matter of right and depends on the substantive TOTAL Amount Due P568,541.00
law, while the latter is a matter of statement and is governed by the law of
procedure. 6 ========
The right of action springs from the cause of action, but does not accrue until
all the facts which constitute the cause of action have occurred. 7 When there Copy of said letter is attached hereto as Annex A and made
is an invasion of primary rights, then and not until then does the adjective or an integral part hereof.
remedial law become operative, and under it arise rights of action. There can
be no right of action until there has been a wrong a violation of a legal right b. The claim of P568,541.00 is not due and owing from the
and it is then given by the adjective law. 8 plaintiff to the defendant because, as already stated, the
amounts of the checks issued to defendant some more than
The herein petition for review on Certiorari of a decision of the Court of (7) years ago, were either fully paid, settled, extinguished or
Appeals dated January 30, 1990 in CA G.R. No. 22481 9 puts into test the treated as condoned by agreement of the parties.
sufficiency of the cause of action of a complaint filed in the Regional Trial
Court of Manila.: nad 6. In the said letter, Annex A hereof, defendant threatened to
"institute the proper action and hold (plaintiff liable for the
The undisputed antecedents are that on September 15, 1988, petitioner filed consequence," in the following manner:
a complaint for damages and other equitable reliefs in the trial court, the
relevant allegations of which are as follows: . . . unfortunately, you had not heeded his (defendant's)
request and so we hereby inform you that this shall definitely
"3. Plaintiff and defendant have been friends and in the course of this be our last letter to you on this matter and we are giving you
relationship, they have exchanged mutual favors and a final period of ten (10) days from receipts hereof to remit
accommodations, including discounting of check for cash. full payment of said sum of P568,541.00, otherwise, without
 need of further advice to you, we shall institute the proper
action and hold you liable for the consequence.:-cralaw
7. Defendant knows fully well that the sum of P568,541.00 is not
wholly or partly due or owing to him from plaintiff particularly the
huge, fantastic, and unwarranted claim for alleged legal interests in
the sum of P235,956.00 which roughly accounts for 84% of the
alleged principal amount being collected by defendant from plaintiff
under his ill-tenored Annex A hereof, and the unwarranted claim for
attorney's collection fees of P51,685.00.
8. Plaintiff is very reluctant to file the instant complaint against his
defendant friend but was gravely agitated to do so because of a
clearly perceived and palpable injury to him as unequivocally
expressed in defendant's letter, Annex A hereof.
9. In the circumstances given, defendant has kept possession of the
alleged checks amounting to P280,900.00 at the expense of plaintiff
and since the obligation thereunder has either been fully or wholly
paid, settled, extinguished, or condoned by agreement of the parties,
defendant holds them without just or legal ground and is bound to
return them to plaintiff.
10. In writing the letter, Annex A hereof and demanding therein an
obligation from plaintiff which is not due and owing from the latter,
defendant failed to act with justice, observe honesty and good faith.
11. To prosecute the instant action, plaintiff has incurred actual
expenses in the sum of at least P15,000.00.
12. In the circumstances herein-above given, defendant acted in a
wanton, reckless, oppressive, or malevolent manner. Hence,
exemplary damages in the sum of P200,000.00 should be imposed
against the defendant for the public good, in addition to other
damages claimed herein.
13. Nominal damages should be adjudicated against the defendant in
order that the right of plaintiff which has been invaded by the
defendant, may be vindicated or recognized, and not for the purpose
of indemnifying the plaintiff for any loss suffered by the latter.
14. To prosecute the case herein, plaintiff has retained the services
of counsel at the agreed attorney's fees of P75,000.00.
WHEREFORE, it is respectfully prayed that, after due hearing
judgment be rendered in favor of plaintiff and against defendant, as
follows:
1. Ordering defendant to pay plaintiff the sum of P15,000.00
as actual or compensatory damages;
2. Ordering the defendant to pay plaintiff the exemplary
damages in the sum of P200,000.00;
3. Ordering defendant to return to plaintiff the several checks
mentioned in Annex A of the complaint and adjudicating
nominal damages in favor of plaintiff and against the
defendant;
4. Ordering defendant to pay plaintiff the sum of P75,000.00
for and as attorney's fees; and
5. Ordering the defendant to pay the costs of the suit.: nad
Plaintiff prays for other relief just and proper in the premises of the
case." 10
On October 8, 1988, private respondent filed a motion to dismiss the
complaint for lack of cause of action and prescription. An opposition thereto
was filed by petitioner to which a reply was made by private respondent. After
a rejoinder was submitted by petitioner, on November 24, 1988 the trial court
dismissed the complaint for failure to state a cause of action. 11
A motion for reconsideration thereof filed by petitioner, which was opposed
by private respondent, and to which a reply was filed by petitioner, was
denied by the trial court on March 17, 1989. 12
Hence, petitioner filed a petition for Certiorari and mandamus and other relief
in the Court of Appeals against said orders of the trial court. As earlier stated,
on January 30, 1990, the Court of Appeals rendered its decision dismissing
the appeal with costs against petitioner.
Thus, the herein petition whereby petitioner alleges that the trial court
committed a grave abuse of discretion in issuing the questioned orders dated
November 24, 1988 and March 17, 1989, and that the Court of Appeals did
likewise in dismissing the appeal of petitioner thereby disregarding a question
of substance not in accord with law.
The petition is impressed with merit.
A reading of the complaint shows that it is therein alleged that more than
seven (7) years ago, several checks were issued by petitioner to private
respondent in exchange for cash amounting to P280,900.00; that in due time,
said checks were "either fully paid, settled, extinguished or condoned by
agreement of the parties" so petitioner did not anymore redeem the checks
because of their friendship; that on August 30, 1988, private respondent's
lawyer sent a letter of demand to petitioner to pay said principal amount plus
interest and attorney's fees with a total amount due of P568,541.00, which
claim is not due and owing having been settled between the parties; that in
said letter threat of court action was made causing injury to petitioner; that
private respondent illegally withheld the petitioner's checks which should be
returned to petitioner; that for private respondent's act of demanding
payment for an obligation not due and for the former's failure to act with
justice, observe honesty and good faith, petitioner prays for relief by way of
actual, exemplary and nominal damages, and also prays that the private
respondent be ordered to return to petitioner the checks mentioned in the
complaint, and to pay the costs.
Contrary to the findings of the lower court and the appellate court that the
complaint states no cause of action, this Court finds and so holds that it states
a sufficient cause of action.
It must be remembered that when a party files a motion to dismiss the
complaint for lack of cause of action he is deemed to hypothetically admit the
allegations thereof.
From the allegation of the complaint in this case it appears that, (1) petitioner
has a primary right, because of having paid his obligation to private
respondent, to have the checks he issued to cover the amount returned to
him or otherwise cancelled by private respondent; and (2) the primary right
of was violated when private respondent demanded payment of a settled
obligation relying on the very checks of petitioner he had not returned.
Consequently, on account of such demand for payment for an obligation duly
settled, the petitioner thereby suffered damages 13 and should be afforded
such relief as prayed for in the complaint.:-cralaw
Contrary to the observation made by the appellate court, the cause of action
had not prescribed. The cause of action accrued only on August 20, 1988
when in a demand letter for payment private respondent thereby committed
a wrongful act against petitioner. The complaint was filed promptly on
September 15, 1988, well within the four (4) year prescriptive period of an
action of this nature. 14
WHEREFORE, the petition is GRANTED and the questioned decision of the
Court of Appeals dated January 30, 1990 as well as the questioned orders of
the Regional Trial Court of Manila dated November 24, 1988 and March 17,
1989, are hereby REVERSED AND SET ASIDE. Let the records of this case be
remanded to the trial court for further proceedings. Costs against private
respondent.
 [G.R. No. 116100. February 9, 1996]
SPOUSES CRISTINO and BRIGIDA CUSTODIO and SPOUSES LITO and
MARIA CRISTINA SANTOS, petitioners, vs. COURT OF APPEALS, HEIRS OF
PACIFICO C. MABASA and REGIONAL TRIAL COURT OF PASIG, METRO
MANILA, BRANCH 181, respondents.
DECISION
REGALADO, J.:
This petition for review on certiorari assails the decision of respondent Court of Appeals in CA-
G.R. CV No. 29115, promulgated on November 10, 1993, which affirmed with modification the
decision of the trial court, as well as its resolution dated July 8, 1994 denying petitioners motion
for reconsideration.[1]
On August 26, 1982, Civil Case No. 47466 for the grant of an easement of right of way was filed
by Pacifico Mabasa against Cristino Custodio, Brigida R. Custodio, Rosalina R. Morato, Lito
Santos and Maria Cristina C. Santos before the Regional Trial Court of Pasig and assigned to
Branch 22 thereof.[2]
The generative facts of the case, as synthesized by the trial court and adopted by the Court of
Appeals, are as follows:
Perusing the record, this Court finds that the original plaintiff Pacifico Mabasa died during the
pendency of this case and was substituted by Ofelia Mabasa, his surviving spouse [and
children].
The plaintiff owns a parcel of land with a two-door apartment erected thereon situated at Interior
P. Burgos St., Palingon, Tipas, Taguig, Metro Manila. The plaintiff was able to acquire said
property through a contract of sale with spouses Mamerto Rayos and Teodora Quintero as
vendors last September 1981. Said property may be described to be surrounded by other
immovables pertaining to defendants herein. Taking P. Burgos Street as the point of reference,
on the left side, going to plaintiffs property, the row of houses will be as follows: That of
defendants Cristino and Brigido Custodio, then that of Lito and Maria Cristina Santos and then
that of Ofelia Mabasa. On the right side (is) that of defendant Rosalina Morato and then a Septic
Tank (Exhibit D). As an access to P. Burgos Street from plaintiffs property, there are two
possible passageways. The first passageway is approximately one meter wide and is about 20
meters distan(t) from Mabasas residence to P. Burgos Street. Such path is passing in between the
previously mentioned row of houses. The second passageway is about 3 meters in width and
length from plaintiff Mabasas residence to P. Burgos Street; it is about 26 meters. In passing
thru said passageway, a less than a meter wide path through the septic tank and with 5-6 meters
in length has to be traversed.
When said property was purchased by Mabasa, there were tenants occupying the premises and
who were acknowledged by plaintiff Mabasa as tenants. However, sometime in February, 1982.
one of said tenants vacated the apartment and when plaintiff Mabasa went to see the premises,
he saw that there had been built an adobe fence in the first passageway making it narrower in
width. Said adobe fence was first constructed by defendants Santoses along their property which
is also along the first passageway. Defendant Morato constructed her adobe fence and even
extended said fence in such a way that the entire passageway was enclosed (Exhibit 1-Santoses
and Custodios, Exh. D for plaintiff, Exhs. 1-C, 1-D and I -E) And it was then that the remaining
tenants of said apartment vacated the area. Defendant Ma. Cristina Santos testified that she
constructed said fence because there was an incident when her daughter was dragged by a
bicycle pedalled by a son of one of the tenants in said apartment along the first passageway. She
also mentioned some other inconveniences of having (at) the front of her house a pathway such
as when some of the tenants were drunk and would bang their doors and windows. Some of their
footwear were even lost. x x x[3] (Italics in original text; corrections in parentheses supplied)
On February 27, 1990, a decision was rendered by the trial court, with this dispositive part:
Accordingly, judgment is hereby rendered as follows:
1) Ordering defendants Custodios and Santoses to give plaintiff permanent access - ingress and
egress, to the public street;
2) Ordering the plaintiff to pay defendants Custodios and Santoses the sum of Eight Thousand
Pesos (P8,000) as indemnity for the permanent use of the passageway.
The parties to shoulder their respective litigation expenses.[4]
Not satisfied therewith, therein plaintiff represented by his heirs, herein private respondents, went
to the Court of Appeals raising the sole issue of whether or not the lower court erred in not
awarding damages in their favor. On November 10, 1993, as earlier stated, the Court of Appeals
rendered its decision affirming the judgment of the trial court with modification, the decretal
portion of which disposes as follows:
WHEREFORE, the appealed decision of the lower court is hereby AFFIRMED WITH
MODIFICATION only insofar as the herein grant of damages to plaintiffs-appellants. The Court
hereby orders defendants-appellees to pay plaintiffs-appellants the sum of Sixty Five
Thousand (P65,000) Pesos as Actual Damages, Thirty Thousand (P30,000) Pesos as Moral
Damages, and Ten Thousand (P10,000) Pesos as Exemplary Damages. The rest of the appealed
decision is affirmed to all respects.[5]
On July 8, 1994, the Court of Appeals denied petitioners motion for reconsideration.[6]Petitioners
then took the present recourse to us, raising two issues, namely, whether or not the grant of right
of way to herein private respondents is proper, and whether or not the award of damages is in
order.
With respect to the first issue, herein petitioners are already barred from raising the same.
Petitioners did not appeal from the decision of the court a quo granting private respondents the
right of way, hence they are presumed to be satisfied with the adjudication therein. With the
finality of the judgment of the trial court as to petitioners, the issue of propriety of the grant of
right of way has already been laid to rest.
For failure to appeal the decision of the trial court to the Court of Appeals, petitioners cannot
obtain any affirmative relief other than those granted in the decision of the trial court.That decision
of the court below has become final as against them and can no longer be reviewed, much less
reversed, by this Court. The rule in this jurisdiction is that whenever an appeal is taken in a civil
case, an appellee who has not himself appealed may not obtain from the appellate court any
affirmative relief other than what was granted in the decision of the lower court. The appellee can
only advance any argument that he may deem necessary to defeat the appellants claim or to uphold
the decision that is being disputed, and he can assign errors in his brief if such is required to
strengthen the views expressed by the court a quo. These assigned errors, in turn, may be
considered by the appellate court solely to maintain the appealed decision on other grounds, but
not for the purpose of reversing or modifying the judgment in the appellees favor and giving him
other affirmative reliefs.[7]
However, with respect to the second issue, we agree with petitioners that the Court of Appeals
erred in awarding damages in favor of private respondents. The award of damages has no
substantial legal basis. A reading of the decision of the Court of Appeals will show that the award
of damages was based solely on the fact that the original plaintiff, Pacifico Mabasa, incurred
losses in the form of unrealized rentals when the tenants vacated the leased premises by reason of
the closure of the passageway.
However, the mere fact that the plaintiff suffered losses does not give rise to a right to recover
damages. To warrant the recovery of damages, there must be both a right of action for a legal
wrong inflicted by the defendant, and damage resulting to the plaintiff therefrom.Wrong without
damage, or damage without wrong, does not constitute a cause of action, since damages are merely
part of the remedy allowed for the injury caused by a breach or wrong. [8]
There is a material distinction between damages and injury. Injury is the illegal invasion of a legal
right; damage is the loss, hurt, or harm which results from the injury; and damages are the
recompense or compensation awarded for the damage suffered. Thus, there can be damage
without injury in those instances in which the loss or harm was not the result of a violation of a
legal duty. These situations are often called damnum absque injuria.[9] in order that a plaintiff may
maintain an action for the injuries of which he complains, he must establish that such injuries
resulted from a breach of duty which the defendant owed to the plaintiff - a concurrence of injury
to the plaintiff and legal responsibility by the person causing it. [10] The underlying basis for the
award of tort damages is the premise that an individual was injured in contemplation of law. Thus,
there must first be the breach of some duty and the imposition of liability for that breach before
damages may be awarded; it is not sufficient to state that there should be tort liability merely
because the plaintiff suffered some pain and suffering)[11]
Many accidents occur and many injuries are inflicted by acts or omissions which cause damage
or loss to another but which violate no legal duty to such other person, and consequently create
no cause of action in his favor. In such cases, the consequences must be borne by the injured
person alone. The law affords no remedy for damages resulting from an act which does not amount
to a legal injury or wrong. [12]
decision of the trial court granting a compulsory right of way in their favor after payment of just
compensation. It was only that decision which gave private respondents the right to use the said
passageway after payment of the compensation and imposed a corresponding duty on petitioners
not to interfere in the exercise of said right.
Hence, prior to said decision, petitioners had an absolute right over their property and their act of
fencing and enclosing the same was an act which they may lawfully perform in the employment
and exercise of said right. To repeat, whatever injury or damage may have been sustained by
private respondents by reason of the rightful use of the said land by petitioners is damnum absque
injuria.[17]
A person has a right to the natural use and enjoyment of his own property, according to his
pleasure, for all the purposes to which such property is usually applied. As a general rule,
therefore, there is no cause of action for acts done by one person upon his own property in a lawful
and proper manner, although such acts incidentally cause damage or an unavoidable loss to
another, as such damage or loss is damnum absque injuria.[18] When the owner of property makes
use thereof in the general and ordinary manner in which the property is used, such as fencing or
enclosing the same as in this case, nobody can complain of having been injured, because the
inconvenience arising from said use can be considered as a mere consequence of community
life.[19]
The proper exercise of a lawful right cannot constitute a legal wrong for which an action will
lie,[20] although the act may result in damage to another, for no legal right has been invaded[21] One
may use any lawful means to accomplish a lawful purpose and though the means adopted may
cause damage to another, no cause of action arises in the latters favor.Any injury or damage
occasioned thereby is damnum absque injuria. The courts can give no redress for hardship to an
individual resulting from action reasonably calculated to achieve a lawful end by lawful means.[22]
WHEREFORE, under the compulsion of the foregoing premises, the appealed decision of
respondent Court of Appeals is hereby REVERSED and SET ASIDE and the judgment of the trial
court is correspondingly REINSTATED.

In other words, in order that the law will give redress for an act causing damage, that act must be SO ORDERED.
not only hurtful, but wrongful. There must be damnum et injuria.[13] If, as may happen in many
cases, a person sustains actual damage, that is, harm or loss to his person or property, without
sustaining any legal injury, that is, an act or omission which the law does not deem an injury, the
damage is regarded as damnum absque injuria.[14]
In the case at bar, although there was damage, there was no legal injury. Contrary to the claim of
private respondents, petitioners could not be said to have violated the principle of abuse of right.
In order that the principle of abuse of right provided in Article 21 of the Civil Code can be applied,
it is essential that the following requisites concur: (1) The defendant should have acted in a manner
that is contrary to morals, good customs or public policy; (2) The acts should be willful; and (3)
There was damage or injury to the plaintiff.[15]
The act of petitioners in constructing a fence within their lot is a valid exercise of their right as
owners, hence not contrary to morals, good customs or public policy. The law recognizes in the
owner the right to enjoy and dispose of a thing, without other limitations than those established
by law.[16] It is within the right of petitioners, as owners, to enclose and fence their property.
Article 430 of the Civil Code provides that (e)very owner may enclose or fence his land or
tenements by means of walls, ditches, live or dead hedges, or by any other means without
detriment to servitudes constituted thereon.
At the time of the construction of the fence, the lot was not subject to any servitudes.There was
no easement of way existing in favor of private respondents, either by law or by contract. The fact
that private respondents had no existing right over the said passageway is confirmed by the very

[G.R. No. 111127. July 26, 1996]
MR. & MRS. ENGRACIO FABRE, JR.* and PORFIRIO CABIL, petitioners,
vs.COURT OF APPEALS, THE WORD FOR THE WORLD CHRISTIAN
FELLOWSHIP, INC., AMYLINE ANTONIO, JOHN RICHARDS, GONZALO
GONZALES, VICENTE V. QUE, JR., ICLI CORDOVA, ARLENE GOJOCCO,
ALBERTO ROXAS CORDERO, RICHARD BAUTISTA, JOCELYN GARCIA,
YOLANDA CORDOVA, NOEL ROQUE, EDWARD TAN, ERNESTO
NARCISO, ENRIQUETA LOCSIN, FRANCIS NORMAN O. LOPEZ, JULIUS
CAESAR GARCIA, ROSARIO MA. V. ORTIZ, MARIETTA C. CLAVO, ELVIE
SENIEL, ROSARIO MARA-MARA, TERESITA REGALA, MELINDA
TORRES, MARELLA MIJARES, JOSEFA CABATINGAN, MARA NADOC,
DIANE MAYO, TESS PLATA, MAYETTE JOCSON, ARLENE Y. MORTIZ,
LIZA MAYO, CARLOS RANARIO, ROSAMARIA T. RADOC and
BERNADETTE FERRER, respondents.
DECISION
MENDOZA, J.:
This is a petition for review on certiorari of the decision of the Court of Appeals[1] in CA-
GR No. 28245, dated September 30, 1992, which affirmed with modification the decision
of the Regional Trial Court of Makati, Branch 58, ordering petitioners jointly and severally
to pay damages to private respondent Amyline Antonio, and its resolution which denied
petitioners motion for reconsideration for lack of merit.
Petitioners Engracio Fabre, Jr. and his wife were owners of a 1982 model Mazda
minibus.They used the bus principally in connection with a bus service for school children
which they operated in Manila. The couple had a driver, Porfirio J. Cabil, whom they hired
in 1981, after trying him out for two weeks. His job was to take school children to and
from the St. Scholasticas College in Malate, Manila.
On November 2, 1984 private respondent Word for the World Christian Fellowship Inc.
(WWCF) arranged with petitioners for the transportation of 33 members of its Young
Adults Ministry from Manila to La Union and back in consideration of which private
respondent paid petitioners the amount of P3,000.00.
The group was scheduled to leave on November 2, 1984, at 5:00 oclock in the
afternoon.However, as several members of the party were late, the bus did not leave the
Tropical Hut at the corner of Ortigas Avenue and EDSA until 8:00 oclock in the
evening. Petitioner Porfirio Cabil drove the minibus.
The usual route to Caba, La Union was through Carmen, Pangasinan. However, the
bridge at Carmen was under repair, so that petitioner Cabil, who was unfamiliar with the
area (it being his first trip to La Union), was forced to take a detour through the town of
Ba-ay in Lingayen, Pangasinan. At 11:30 that night, petitioner Cabil came upon a sharp
curve on the highway, running on a south to east direction, which he described as siete.
The road was slippery because it was raining, causing the bus, which was running at the
speed of 50 kilometers per hour, to skid to the left road shoulder. The bus hit the left
traffic steel brace and sign along the road and rammed the fence of one Jesus Escano,
then turned over and landed on its left side, coming to a full stop only after a series of
impacts. The bus came to rest off the road. A coconut tree which it had hit fell on it and
smashed its front portion.
Several passengers were injured. Private respondent Amyline Antonio was thrown on
the floor of the bus and pinned down by a wooden seat which came off after being
unscrewed. It took three persons to safely remove her from this position. She was in
great pain and could not move.
The driver, petitioner Cabil, claimed he did not see the curve until it was too late. He said
he was not familiar with the area and he could not have seen the curve despite the care
he took in driving the bus, because it was dark and there was no sign on the road. He
said that he saw the curve when he was already within 15 to 30 meters of it. He allegedly
slowed down to 30 kilometers per hour, but it was too late.
The Lingayen police investigated the incident the next day, November 3, 1984. On the
basis of their finding they filed a criminal complaint against the driver, Porfirio Cabil. The
case was later filed with the Lingayen Regional Trial Court. Petitioners Fabre paid Jesus
Escano P1,500.00 for the damage to the latters fence. On the basis of Escanos affidavit
of desistance the case against petitioners Fabre was dismissed.
Amyline Antonio, who was seriously injured, brought this case in the RTC of Makati,
Metro Manila. As a result of the accident, she is now suffering from paraplegia and is
permanently paralyzed from the waist down. During the trial she described the operations
she underwent and adduced evidence regarding the cost of her treatment and
therapy.Immediately after the accident, she was taken to the Nazareth Hospital in Ba-ay,
Lingayen. As this hospital was not adequately equipped, she was transferred to the Sto.
Nio Hospital, also in the town of Ba-ay, where she was given sedatives. An x-ray was
taken and the damage to her spine was determined to be too severe to be treated
there. She was therefore brought to Manila, first to the Philippine General Hospital and
later to the Makati Medical Center where she underwent an operation to correct the
dislocation of her spine.
In its decision dated April 17, 1989, the trial court found that:
No convincing evidence was shown that the minibus was properly checked for travel to a long
distance trip and that the driver was properly screened and tested before being admitted for
employment.Indeed, all the evidence presented have shown the negligent act of the defendants
which ultimately resulted to the accident subject of this case.
Accordingly, it gave judgment for private respondents holding:
Considering that plaintiffs Word for the World Christian Fellowship, Inc. and Ms. Amyline
Antonio were the only ones who adduced evidence in support of their claim for damages, the
Court is therefore not in a position to award damages to the other plaintiffs.
WHEREFORE, premises considered, the Court hereby renders judgment against defendants Mr.
& Mrs. Engracio Fabre, Jr. and Porfirio Cabil y Jamil pursuant to articles 2176 and 2180 of the
Civil Code of the Philippines and said defendants are ordered to pay jointly and severally to the
plaintiffs the following amount:
1) P93,657.11 as compensatory and actual damages;
2) P500,000.00 as the reasonable amount of loss of earning capacity of plaintiff
Amyline Antonio;
3) P20,000.00 as moral damages;
4) P20,000.00 as exemplary damages; and
 5) 25% of the recoverable amount as attorneys fees;
6) Costs of suit.
SO ORDERED.
The Court of Appeals affirmed the decision of the trial court with respect to Amyline
Antonio but dismissed it with respect to the other plaintiffs on the ground that they failed
to prove their respective claims. The Court of Appeals modified the award of damages
as follows:
1) P93,657.11 as actual damages;
2) P600,000.00 as compensatory damages;
3) P50,000.00 as moral damages;
4) P20,000.00 as exemplary damages;
5) P10,000.00 as attorneys fees; and
6) Costs of suit.
The Court of Appeals sustained the trial courts finding that petitioner Cabil failed to
exercise due care and precaution in the operation of his vehicle considering the time and
the place of the accident. The Court of Appeals held that the Fabres were themselves
presumptively negligent. Hence, this petition. Petitioners raise the following issues:
I. WHETHER OR NOT PETITIONERS WERE NEGLIGENT.
II. WHETHER OR NOT PETITIONERS WERE LIABLE FOR THE INJURIES
SUFFERED BY PRIVATE RESPONDENTS.
III. WHETHER OR NOT DAMAGES CAN BE AWARDED AND IN THE
POSITIVE, UP TO WHAT EXTENT.
Petitioners challenge the propriety of the award of compensatory damages in the amount
of P600,000.00. It is insisted that, on the assumption that petitioners are liable, an award
of P600,000.00 is unconscionable and highly speculative. Amyline Antonio testified that
she was a casual employee of a company called Suaco, earning P1,650.00 a month, and
a dealer of Avon products, earning an average of P1,000.00 monthly. Petitioners contend
that as casual employees do not have security of tenure, the award of P600,000.00,
considering Amyline Antonios earnings, is without factual basis as there is no assurance
that she would be regularly earning these amounts.
With the exception of the award of damages, the petition is devoid of merit.
First, it is unnecessary for our purpose to determine whether to decide this case on the
theory that petitioners are liable for breach of contract of carriage or culpa contractual or
on the theory of quasi delict or culpa aquiliana as both the Regional Trial Court and the
Court of Appeals held, for 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.[2] In either case, the question is whether the bus driver, petitioner Porfirio Cabil, was
negligent.
The finding that Cabil drove his bus negligently, while his employer, the Fabres, who
owned the bus, failed to exercise the diligence of a good father of the family in the
selection and supervision of their employee is fully supported by the evidence on
record. These factual findings of the two courts we regard as final and conclusive,
supported as they are by the evidence. Indeed, it was admitted by Cabil that on the night
in question, it was raining, and, as a consequence, the road was slippery, and it was
dark. He averred these facts to justify his failure to see that there lay a sharp curve
ahead. However, it is undisputed that Cabil drove his bus at the speed of 50 kilometers
per hour and only slowed down when he noticed the curve some 15 to 30 meters
ahead.[3] By then it was too late for him to avoid falling off the road. Given the conditions
of the road and considering that the trip was Cabils first one outside of Manila, Cabil
should have driven his vehicle at a moderate speed. There is testimony[4] that the
vehicles passing on that portion of the road should only be running 20 kilometers per
hour, so that at 50 kilometers per hour, Cabil was running at a very high speed.
Considering the foregoing the fact that it was raining and the road was slippery, that it
was dark, that he drove his bus at 50 kilometers an hour when even on a good day the
normal speed was only 20 kilometers an hour, and that he was unfamiliar with the terrain,
Cabil was grossly negligent and should be held liable for the injuries suffered by private
respondent Amyline Antonio.
Pursuant to Arts. 2176 and 2180 of the Civil Code his negligence gave rise to the
presumption that his employers, the Fabres, were themselves negligent in the selection
and supervision of their employee.
Due diligence in selection of employees is not satisfied by finding that the applicant
possessed a professional drivers license. The employer should also examine the
applicant for his qualifications, experience and record of service. [5] Due diligence in
supervision, on the other hand, requires the formulation of rules and regulations for the
guidance of employees and the issuance of proper instructions as well as actual
implementation and monitoring of consistent compliance with the rules. [6]
In the case at bar, the Fabres, in allowing Cabil to drive the bus to La Union, apparently
did not consider the fact that Cabil had been driving for school children only, from their
homes to the St. Scholasticas College in Metro Manila. [7] They had hired him only after a
two-week apprenticeship. They had tested him for certain matters, such as whether he
could remember the names of the children he would be taking to school, which were
irrelevant to his qualification to drive on a long distance travel, especially considering that
the trip to La Union was his first. The existence of hiring procedures and supervisory
policies cannot be casually invoked to overturn the presumption of negligence on the part
of an employer.[8]
Petitioners argue that they are not liable because (1) an earlier departure (made
impossible by the congregations delayed meeting) could have averted the mishap and
(2) under the contract, the WWCF was directly responsible for the conduct of the
trip. Neither of these contentions hold water. The hour of departure had not been
fixed. Even if it had been, the delay did not bear directly on the cause of the
accident. With respect to the second contention, it was held in an early case that:
[A] person who hires a public automobile and gives the driver directions as to the place to which
he wishes to be conveyed, but exercises no other control over the conduct of the driver, is not
responsible for acts of negligence of the latter or prevented from recovering for injuries suffered
from a collision between the automobile and a train, caused by the negligence either of the
locomotive engineer or the automobile driver.[9]
As already stated, this case actually involves a contract of carriage. Petitioners, the
Fabres, did not have to be engaged in the business of public transportation for the
provisions of the Civil Code on common carriers to apply to them. As this Court has
held:[10]
Art. 1732. 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
compensation, offering their services to the public.
The above article makes no distinction between one whose principal business activity is
the carrying of persons or goods or both, and one who does such carrying only as an
ancillary activity (in local idiom, as a sideline). Article 1732 also carefully avoids making
any distinction between a person or enterprise offering transportation service on a regular
or scheduled basis and one offering such service on an occasional, episodic or
unscheduled basis. Neither does Article 1732 distinguish between a carrier offering its
services to the general public, i.e., the general community or population, and one who
offers services or solicits business only from a narrow segment of the general
population. We think that Article 1732 deliberately refrained from making such
distinctions.
As common carriers, the Fabres were bound to exercise extraordinary diligence for the
safe transportation of the passengers to their destination. This duty of care is not excused
by proof that they exercised the diligence of a good father of the family in the selection
and supervision of their employee. As Art. 1759 of the Code provides:
Common carriers are liable for the death of or injuries to passengers through the
negligence or wilful 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.
The same circumstances detailed above, supporting the finding of the trial court and of
the appellate court that petitioners are liable under Arts. 2176 and 2180 for quasi delict,
fully justify finding them guilty of breach of contract of carriage under Arts. 1733, 1755
and 1759 of the Civil Code.
Secondly, we sustain the award of damages in favor of Amyline Antonio. However, we
think the Court of Appeals erred in increasing the amount of compensatory damages
because private respondents did not question this award as inadequate. [11] To the
contrary, the award of P500,000.00 for compensatory damages which the Regional Trial
Court made is reasonable considering the contingent nature of her income as a casual
employee of a company and as distributor of beauty products and the fact that the
possibility that she might be able to work again has not been foreclosed. In fact she
testified that one of her previous employers had expressed willingness to employ her
again.
With respect to the other awards, while the decisions of the trial court and the Court of
Appeals do not sufficiently indicate the factual and legal basis for them, we find that they
are nevertheless supported by evidence in the records of this case. Viewed as an action
for quasi delict, this case falls squarely within the purview of Art. 2219(2) providing for
the payment of moral damages in cases of quasi delict. On the theory that petitioners are
liable for breach of contract of carriage, the award of moral damages is authorized by
Art. 1764, in relation to Art. 2220, since Cabils gross negligence amounted to bad
faith.[12] Amyline Antonios testimony, as well as the testimonies of her father and co-
passengers, fully establish the physical suffering and mental anguish she endured as a
result of the injuries caused by petitioners negligence.
The award of exemplary damages and attorneys fees was also properly made. However,
for the same reason that it was error for the appellate court to increase the award of
compensatory damages, we hold that it was also error for it to increase the award of
moral damages and reduce the award of attorneys fees, inasmuch as private
respondents, in whose favor the awards were made, have not appealed. [13]
As above stated, the decision of the Court of Appeals can be sustained either on the
theory of quasi delict or on that of breach of contract. The question is whether, as the two
courts below held, petitioners, who are the owners and driver of the bus, may be made
to respond jointly and severally to private respondent. We hold that they may
be. In Dangwa Trans. Co. Inc. v. Court of Appeals,[14] on facts similar to those in this
case, this Court held the bus company and the driver jointly and severally liable for
damages for injuries suffered by a passenger. Again, in Bachelor Express, Inc. v. Court
of Appeals[15] a driver found negligent in failing to stop the bus in order to let off
passengers when a fellow passenger ran amuck, as a result of which the passengers
jumped out of the speeding bus and suffered injuries, was held also jointly and severally
liable with the bus company to the injured passengers.
The same rule of liability was applied in situations where the negligence of the driver of
the bus on which plaintiff was riding concurred with the negligence of a third party who
was the driver of another vehicle, thus causing an accident. In Anuran v.
Buo,[16] Batangas Laguna Tayabas Bus Co. v. Intermediate Appellate
Court,[17] and Metro Manila Transit Corporation v. Court of Appeals,[18] the bus company,
its driver, the operator of the other vehicle and the driver of the vehicle were jointly and
severally held liable to the injured passenger or the latters heirs. The basis of this
allocation of liability was explained in Viluan v. Court of Appeals,[19] thus:
Nor should it make any difference that the liability of petitioner [bus owner] springs from
contract while that of respondents [owner and driver of other vehicle] arises from quasi-
delict. As early as 1913, we already ruled in Gutierrez vs. Gutierrez, 56 Phil. 177, that in case of
injury to a passenger due to the negligence of the driver of the bus on which he was riding and
of the driver of another vehicle, the drivers as well as the owners of the two vehicles are jointly
and severally liable for damages. Some members of the Court, though, are of the view that under
the circumstances they are liable on quasi-delict.[20]
It is true that in Philippine Rabbit Bus Lines, Inc. v. Court of Appeals [21] this Court
exonerated the jeepney driver from liability to the injured passengers and their families
while holding the owners of the jeepney jointly and severally liable, but that is because
that case was expressly tried and decided exclusively on the theory of culpa
contractual. As this Court there explained:
The trial court was therefore right in finding that Manalo [the driver] and spouses Mangune and
Carreon [the jeepney owners] were negligent. However, its ruling that spouses Mangune and
Carreon are jointly and severally liable with Manalo is erroneous. The driver cannot be held
jointly and severally liable with the carrier in case of breach of the contract of carriage. The
rationale behind this is readily discernible. Firstly, the contract of carriage is between the carrier
and the passenger, and in the event of contractual liability, the carrier is exclusively responsible
therefore to the passenger, even if such breach be due to the negligence of his driver (see
Viluan v. The Court of Appeals, et al., G.R. Nos. L-21477-81, April 29, 1966, 16 SCRA 742) . .
.[22]
As in the case of BLTB, private respondents in this case and her co-plaintiffs did not
stake out their claim against the carrier and the driver exclusively on one theory, much
less on that of breach of contract alone. After all, it was permitted for them to allege
alternative causes of action and join as many parties as may be liable on such causes of
action[23] so long as private respondent and her co-plaintiffs do not recover twice for the
same injury. What is clear from the cases is the intent of the plaintiff there to recover from
both the carrier and the driver, thus justifying the holding that the carrier and the driver
were jointly and severally liable because their separate and distinct acts concurred to
produce the same injury.
WHEREFORE, the decision of the Court of Appeals is AFFIRMED with MODIFICATION
as to the award of damages. Petitioners are ORDERED to PAY jointly and severally the
private respondent Amyline Antonio the following amounts:
1) P93,657.11 as actual damages;
2) P500,000.00 as the reasonable amount of loss of earning capacity of plaintiff
Amyline Antonio;
3) P20,000.00 as moral damages;
4) P20,000.00 as exemplary damages;
5) 25% of the recoverable amount as attorneys fees; and
6) costs of suit.
SO ORDERED.
Regalado, (Chairman), Romero, Puno, and Torres, Jr., JJ., concur.
G.R. No. L-12191 October 14, 1918
JOSE CANGCO, plaintiff-appellant,
vs.
MANILA RAILROAD CO., defendant-appellee.
Ramon Sotelo for appellant.
Kincaid & Hartigan for appellee.
FISHER, J.:
At the time of the occurrence which gave rise to this litigation the plaintiff, Jose Cangco, was in
the employment of 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 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 contact 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 the shipment to the market. They were contained in
numerous sacks which has been piled on the platform in a row one upon another. The testimony
shows that this row of sacks was so placed of melons and the edge of 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
of the servants and employees of the defendant in placing the sacks of melons upon the platform
and 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 form 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 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
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 obligations or 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 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 article
 1101, 1103, and 1104 of the same code. (Rakes vs. Atlantic, Gulf and Pacific Co., 7
Phil. Rep., 359 at 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 superior if it were, the master would
be liable in every case and unconditionally but 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 of the servant, he is not liable for the acts
of the latter, whatever 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 acts on 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
person 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 yield 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 Rico
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 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 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 in 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 contact, 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 it 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, give 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 elect and our Legislature has so elected 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 person who acts or mission are imputable, by a legal
fiction, to others who are in a position to exercise an absolute or limited control over them. The
legislature which adopted our Civil Code has elected to limit extra-contractual liability with
certain well-defined exceptions to cases in which moral culpability can be directly imputed to
the persons to be charged. This moral responsibility may consist in having failed to exercise due
care in 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 sources 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 negligence if 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 willful 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 negligence.
(Manresa, vol. 8, p. 71 [1907 ed., p. 76]).
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
person 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
watchmaker who contract 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 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 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 decisions 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. Compania 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 the 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 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 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 complaint 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 servants; and that in the particular case the presumption of negligence
had not been overcome.
It is evident, therefore that in its decision 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 aquiliana or culpa contractual. As Manresa points out (vol. 8, pp. 29 and 69)
whether negligence occurs an incident in the course of the performance of a contractual
undertaking or its itself the source of an extra-contractual undertaking 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 defendant was liable for the damages negligently caused by its servants
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 obligations, 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 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'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 badly 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 person 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 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, it 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.1awph!l.net
As the case now before us presents itself, the only fact from which a conclusion can be drawn to
the effect that 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 concede that it had right to pile these sacks in the
path of alighting passengers, the placing of them 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 act that is to say, whether the passenger acted
prudently or recklessly the 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 of 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 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.

Separate Opinions

MALCOLM, J., dissenting:

With one sentence in the majority decision, we are of full accord, namely, "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." With the general rule relative to a passenger's
contributory negligence, we are likewise in full accord, namely, "An attempt to alight from a
moving train is negligence per se." Adding these two points together, should be absolved from
the complaint, and judgment affirmed.

Johnson, J., concur.

G.R. No. L-19671 July 26, 1966
PASTOR B. TENCHAVEZ, plaintiff and appellant,
vs.
VICENTA F. ESCAO, ET AL., defendants and appellees.
Isabelo V. Binamira, Filemon B. Barria and Crispin D. Baizas and Associates for appellants.
Vicente L. Faelnar for appellee Mamerto Escao and Mena F. Escao.
Jalandoni and Jamir for appellee Vicenta F. Escao
Norberto J. Quisumbing for intervenor Russel Leo Moran.
RESOLUTION
REYES, J.B.L., J.:
Not satisfied with the decision of this Court, promulgated on 29 November 1965, in the above-
entitled case, plaintiff-appellant Pastor B. Tenchavez and defendant-appellee Vicenta F. Escao,
respectively, move for its reconsideration; in addition, Russell Leo Moran, whom said defendant
married in the United States, has filed, upon leave previously granted, a memorandum in
intervention.
Movant Tenchavez poses the novel theory that Mamerto and Mina Escao are undeserving of an
award for damages because they are guilty of contributory negligence in failing to take up
proper and timely measures to dissuade their daughter Vicenta from leaving her husband
Tenchavez obtaining a foreign divorce and marrying another man (Moran). This theory cannot
be considered: first, because this was not raised in the court below; second, there is no evidence
to support it; third, it contradicts plaintiff's previous theory of alienation of affections in that
contributory negligence involves an omission to perform an act while alienation of affection
involves the performance of a positive act.
The prayer of appellant Tenchavez in his motion for reconsideration to increase the damages
against Vicenta (P25,000 for damages and attorney's fees were awarded to Tenchavez in the
decision) should, likewise, be denied, all factors and circumstances in the case having been duly
considered in the main decision.
In seeking a reexamination of the decision, defendant-appellee Vicenta Escao, in turn, urges a
comparison between the two marriages, stating, in plainer terms, that the Tenchavez-Escano
marriage was no more than a ceremony, and a faulty one at that, while the Moran-Escao
marriage fits the concept of a marriage as a social institution because publicly contracted,
recognized by both civil and ecclesiastical authorities, and blessed by three children. She
concludes that, since the second marriage is the better one, it deserves the laws recognition and
protection over the other. This is a dangerous proposition: it legalizes a continuing polygamy by
permitting a spouse to just drop at pleasure her consort for another in as many jurisdictions as
would grant divorce on the excuse that the new marriage is better than the previous one; and,
instead of fitting the concept of marriage as a social institution, the proposition altogether does
away with the social aspects of marriage in favor of its being a matter of private contract and
personal adventure.
The said appellee claims that state recognition should be accorded the Church's disavowal of her
marriage with Tenchavez. On this point, our main decision limited itself to the statement, "On
10 September 1954, Vicenta sought papal dispensation of her marriage (Exh. P-2)", without
stating that papal dispensation was actually granted, the reason being that Vicenta's claim that
dispensation was granted was not indubitable, and her counsel, during the trial in the lower
court, did not make good his promise to submit the document evidencing the papal dispensation;
in fact, no such document appears on record. The Church's disavowal of the marriage, not being
sufficiently established, it cannot be considered. Vicenta's belated appeal to Canon law, after she
had sought and failed to obtain annulment in the civil courts, and after she had flaunted its
principles by obtaining absolute divorce, does not, and can not, sound convincing. Particularly
when account is taken of the circumstances that she obtained the Nevada divorce in 1950 and
only sought ecclesiastical release from her marriage to Tenchavez in 1954.
The award of moral damages against Vicenta Escao is assailed on the ground that her refusal to
perform her wifely duties, her denial of consortium and desertion of her husband are not
included in the enumeration of cases where moral damages may lie. The argument is untenable.
The acts of Vicenta (up to and including her divorce, for grounds not countenanced by our law,
which was hers at the time) constitute a wilful infliction of injury upon plaintiff's feelings in a
manner "contrary to morals, good customs or public policy" (Civ. Code, Art. 21) for which
Article 2219 (10) authorizes an award of moral damages. Neither the case of Ventanilla vs.
Centeno, L-14333, 28 January 1961 (which was a suit filed by a client against his lawyer for
failure to perfect an appeal on time), nor the case of Malonzo vs. Galang, L-13851, 27 July 1960
(wherein the precise ruling was that moral damages may not be recovered for a clearly
unfounded civil action or proceeding), now invoked by the said defendant-appellee, is in point.
It is also argued that, by the award of moral damages, an additional effect of legal separation has
been added to Article 106. Appellee obviously mistakes our grant of damages as an effect of
legal separation. It was plain in the decision that the damages attached to her wrongful acts
under the codal article (Article 2176) expressly cited.
Appellee-movant commits a similar mistake by citing Arroyo vs. Arroyo, 42 Phil. 54,
and Ramirez-Cuaderno vs. Cuaderno, L-20043, 28 November 1964, to support her argument
that moral damages did not attach to her failure to render consortium because the sanction
therefor is spontaneous mutual affection, and not any legal mandate or court order. The Arroyo
case did rule that "it is not within the province of courts of this country to attempt to compel one
of the spouses to cohabit with, and render conjugal rights to, the other", but it referred to
physically coercive means, the Court declaring that
We are disinclined to sanction the doctrine that an order, enforcible by process of
contempt, may be entered to compel prostitution of the purely personal right
of consortism. (Cas cit., p. 60) (Emphasis supplied)
But economic sanctions are not held in our law to be incompatible with the respect accorded to
individual liberty in civil cases. Thus, a consort who unjustifiably deserts the conjugal abode can
be denied support (Art. 178, Civil Code of the Phil.). And where the wealth of the deserting
spouse renders this remedy illusory, there is no cogent reason why the court may not award
damage as it may in cases of breach of other obligations to do intuitu personae even if in private
relations physical coercion be barred under the old maxim "Nemo potest precise cogi and
factum".
For analogous reasons, the arguments advanced against the award of attorney's fees must be
rejected as devoid of merit.
Contrary to intervenor Moran's contention, the decision did not impair appellee's constitutional
liberty of abode and freedom of locomotion, as, in fact, Vicenta Escao did exercise these rights,
and even abused them by stating in her application for a passport that she was "single", the
better to facilitate her flight from the wrongs she had committed against her husband. The right
of a citizen to transfer to a foreign country and seek divorce in a diverse forum is one thing, and
the recognition to be accorded to the divorce decree thus obtained is quite another; and the two
should not be confused.
Intervenor reiterates that recognition of Vicenta's divorce in Nevada is a more enlightened view.
The argument should be addressed in the legislature. As the case presently stands, the public
policy of this forum is clearly adverse to such recognition, as was extensively discussed in the
decision. The principle is well-established, in private international law, that foreign decrees
cannot be enforced or recognized if they contravene public policy (Nussbaum, Principles of
Private International Law, p. 232).
It is thoroughly established as a broad general rule that foreign law or rights based therein will
not be given effect or enforced if opposed to the settled public policy of the forum. (15 C.J.S.
853)
SEC. 6. Limitations. In the recognition and enforcement of foreign laws the Courts
are slow to overrule the positive law of the forum, and they will never give effect to a
foreign law where to do so would prejudice the state's own rights or the rights of its
citizens or where the enforcement of the foreign law would contravene the positive
policy of the law of the forum whether or not that policy is reflected in statutory
enactments. (11 Am. Jur., 300-301).
A judgment affecting the status of persons, such as a decree confirming or dissolving a
marriage, is recognized as valid in every country, unless contrary to the policy of its
own law. Cottington's Case, 2 Swan St. 326, note; Roach vs. Garvan, I Ves St. 157;
Harvey vs. Farnie, LR 8 App. Cas. 43; Cheely vs. Clayton, 110 U.S. 701 [28:298].
(Hilton vs. Guyot 159 U.S. 113, 167; 40 L. Ed. 95, 110) (Emphasis supplied)
It is, therefore, error for the intervenor to ask that "private international law rather than
Philippine civil law should decide the instant case", as if the two branches of the law
contradicted one another.
In a consolidated paper (intervenor's rejoinder and appellee Vicenta Escao's supplemental
motion for reconsideration), the issue is raised that "the Supreme Court cannot reverse the
decision of the lower court dismissing the complaint nor sentence Vicenta Escao to pay
damages, without resolving the question of lack of jurisdiction over her person".
A resolution by the Supreme Court of the issue of jurisdiction over the person of appellee
Vicenta Escao, and which was disallowed by the court below, was unnecessary because the
matter was not properly brought to us for resolution, either on appeal or by special remedy
which could have been availed of by the appellee when the lower court, on 1 June 1957,
overruled her challenge to its jurisdiction. Neither was the alleged error of the lower court put in
issue in her brief as appellee, as it was incumbent upon her to do (Relativo vs. Castro, 76 Phil.
563; Lucero vs. De Guzman, 45 Phil. 852). Not affecting the jurisdiction over the subject matter,
the court properly ignored the point (Rev. Rule 51, section 7).
SEC. 7. Questions that may be decided. No error which does not affect the
jurisdiction over the subject matter will be considered unless stated in the assignment
of errors and properly argued in the brief, save as the court, at its option, may notice
plain errors not specified, and also clerical errors.
At any rate,
... .When, however, the action against the non-resident defendant affects the personal
status of the plaintiff, as, for instance, an action for separation or for annulment of
marriage, ..., Philippine courts may validly try and decide the case, because, then, they
have jurisdiction over the res, and in that event their jurisdiction over the person of the
non-resident defendant is not essential. The res is the personal status of the plaintiff
domiciled in the Philippines, ... . (1 Moran 411, 1963 Ed., citing Mabanag vs.
Gallemore, 81 Phil. 254)
The award of damages, in the present case, was merely incidental to the petition for legal
separation. For all these reasons, and because she filed a counterclaim against plaintiff (Rec.
App. pp. 205-206), Vicenta should be deemed to have withdrawn the objection to the lower
court's jurisdiction over her person, even though she had stated in the counterclaim that she was
not waiving her special defense of lack of jurisdiction.1wph1.t
It is urged that the actions for legal separation and for quasi-delict have prescribed: the first,
because it was not filed within one year from and after the date on which the plaintiff became
cognizant of the cause; and, the second, because it was not filed within four years since the
Tenchavez-Escao marriage in 1948.
The argument on both points is untenable.
The action for legal separation was filed on 31 May 1956. Although in a letter, under date of 10
December 1954, the Department of Foreign Affairs informed plaintiff Tenchavez
that "According to information, she (appellee) secured a decree of divorce on October 21, 1950
... and married an American citizen, Russel Leo Moran, on September 13, 1954", there is no
satisfactory and convincing evidence as to the time when plaintiff Tenchavez, received the said
letter; nor was she duty-bound to act immediately upon hearsay information. Since prescription
is an affirmative defense, the burden lay on the defendant to clearly prove it, and her proof on it
was inadequate.
On the argument about the action on tort having prescribed, the basis thereof is erroneous: the
marriage was not the cause of appellee's wrongful conduct. Her denial of cohabitation, refusal to
render consortium and desertion of her husband started right after their wedding but such
wrongs have continued ever since. She never stopped her wrongdoings to her husband, so that
the period of limitation has never been completed.
Finally, we see no point in discussing the question of appellee Escao's criminal intent, since
nothing in the main decision was designed or intended to prejudge or rule on the criminal aspect
of the case, if any, or any of its constituent elements. It is to be noted that in this civil case only a
preponderance of evidence is required, and not proof beyond reasonable doubt. While much
could be said as to the circumstances surrounding the divorce of the appellee, we prefer to
abstain from so doing in order not to influence in any way the criminal case, should any be
instituted.
For the reasons above cited, all motions for reconsideration are hereby denied.
Concepcion, C.J., Barrera, Dizon, Regala, Makalintal, J.P. Bengzon, Zaldivar and Sanchez, JJ.,
concur.
R E S O L UT I O N
September 14, 1966
REYES, J.B.L., J.:
Their first motion for reconsideration having been denied, Vicenta Escao and Russel Leo
Moran, through counsel, have filed a second motion for reconsideration.
It is first averred that this Court's decision contradicts the doctrine laid down in Banco Espaol
Filipino vs. Palanca, 37 Phil. 921, that in proceedings in rem or quasi in rem the relief must be
confined to the res, and the Court cannot lawfully render a personal judgment.
Movant's own quotation from that decision demonstrates the diffirence in the facts between the
case at bar and the authority cited. For their own excerpt shows that the rule now invoked was
laid down for instances where the defendant never submitted to the jurisdiction of our courts.
We said then:
If, however, the defendant is a non-resident, and remaining beyond the range of the
personal process of the court refuses to come in voluntarily, the court never acquires
jurisdiction over the person at all. ... (Cas. Cit. p. 930)
The defendant Palanca, in 37 Phil. 921, so much refused to come in voluntarily that he was
declared in default. Was this the case of Vicenta Escao? The records show on their face that it
was not. While she objected to the jurisdiction of the Court over her person, she also filed an
answer with a counterclaim asking for an award of damages against plaintiff-appellant
Tenchavez. Instead of "refusing to come in voluntarily", as Palanca did (in 37 Phil. 921), Escao
took the offensive and asked the Court for a remedy, a judgment against her opponent; and this
after the court below overruled her objection that she was not within its jurisdiction. In asking
the Court for affirmative relief, Escao submitted to its jurisdiction. In the United States,
whence our adjective law finds its sources, the Federal Supreme Court has rules (Merchant's
Heat & Light Co. vs. Clow & Sons, 204 U.S. 286, 51 Law Ed. 488):
We assume that the defendant lost no rights by pleading to the merits, as required,
after saving its rights. Harkness vs. Hyde, 98 U.S. 476, 25 L. ed. 237; Southern P. Co.
vs. Denton, 146 U.S. 202, 36 L. ed. 943, 13 Sup. Ct. Rep. 44. But by setting up its
counterclaim the defendant became a plaintiff in its turn, invoked the jurisdiction of
the court in same action, and, by invoking, submitted to it. It is true that the
counterclaim seems to have arisen wholly out of the same transaction that the plaintiff
sued upon, and so to have been in recoupment rather than in set-off proper. But, even
at common law, since the doctrine has been developed, a demand in recoupment is
recognized as a cross demand, as distinguished from a defense. Therefore, although
there has been a difference of opinion as to whether a defendant, by pleading it, is
concluded by the judgment from bringing a subsequent suit for the residue of his
claim a judgment in his favor being impossible at common law, the authorities agree
that he is not concluded by the judgment if he does not plead his cross demand, and
that whether he shall do so or not is left wholly to his choice. Davis vs. Hedges, L.R. 6
Q.B. 687; Mondel vs. Steel, 8 Mees. & W. 858, 872; O'Connor vs. Varney, 10 Gray,
231. This single fact shows that the defendant, if he elects to sue upon his claim in the
action against him, assumes the position of an actor and must take the consequence.
The right to do so is of modern growth, and is merely a convenience that saves
bringing another suit, not a necessity of the defense. (Emphasis supplied)
The reason for the rule is manifest. The courts can not look with favor upon a party adopting not
merely inconsistent, but actually contradictory, positions in one and the same suit, claiming that
a court has no jurisdiction to render judgment against it, but has such jurisdiction to give to give
a decision in its favor (Dailey vs. Kennedy, 64 Mich. 208, 31 N.W. 125; Harvey vs. Bishop, 171
Okla. 497, 43 Pac. 2d, 48; Haverstick vs. Southern P. Co. (Calif.) 37 Pac. 2d, 146).
Another reason, equally valid, is that if such defendant shall ask for any relief other
than that addressed to his plea, he is seeking to gain an unconscionable advantage over
his adversary, whereby, if the determination be in his favor, he may avail himself of it
while if it be against him, he may fall back upon his plea of lack of jurisdiction of the
person. (Olcese vs. Justice's Court, 156 Calif. 82, 103 Pac. 318).
True, Escao made a reservation of her former plea when she fled her counterclaim; but such
reservation did not remove the obnoxious contradictory positions she assumed.
Secondly, appellee Vicente Escao not only adopted inconsistently positions in the court below
but abandoned all pretense that court's lack of jurisdiction over her person upon appeal to this
Court. She made no reference whatever to that question in her brief as appellee. Coupled with
her previous demand for affirmative relief, Vicente's silence on appeal only confirms her waiver
of the point. Her excuse it that, the lower court having ruled in her favor, she could not very well
assign as error the overruling of her plea of non-jurisdiction. That excuse is unserviceable; for
this Court has repeatedly held (and it is now well settled) that an appellee can make counter
assignments of error for the purpose of sustaining the appealed judgement, altho it is not
allowed to ask that the same be reversed or modified (Bunge Corp. vs. Camenforte Co., 91 Phil.
861, and cases cited therein; Cabrera vs. Provincial Treasurer of Tayabas, 75 Phil. 780; Pineda
& Ampil vs. Bartolome, 95 Phil. 930; David vs. De la Cruz, L-11656, April 18, 1958). Having
failed to do so, this Court had every reason to consider the issue of jurisdiction abandoned, and
appellee's belated attempts to resurrect it, by alleging an imaginary error on our part, are
pointless and vain. The same thing can be said of her effort to escape the jurisdiction she had
invoked in her counterclaim by not appealing its rejection by the trial court. At most, it amounts
to equivocal conduct that can not revive the inconsistent claim of non-jurisdiction, abandoned
by her seeking affirmative relief.
Wherefore, the second motion for reconsideration is denied.
Concepcion, C.J., Barrera, Dizon, Makalintal, Bengzon, J.P., Zaldivar, Sanchez and Castro, JJ.,
concur.
Regala, JJ., took no part
G.R. No. 1719 January 23, 1907
M. H., RAKES, plaintiff-appellee,
vs.
THE ATLANTIC, GULF AND PACIFIC COMPANY, defendant-appellant.
A. D. Gibbs for appellant.
F. G. Waite, & Thimas Kepner for appellee.
TRACEY, J.:
This is an action for damages. The plaintiff, one of a gang of eight negro laborers in the
employment of the defendant, was at work transporting iron rails from a barge in the harbor to
the company's yard near the malecon in Manila. Plaintiff claims that but one hand car was used
in this work. The defendant has proved that there were two immediately following one another,
upon which were piled lengthwise seven rails, each weighing 560 pounds, so that the ends of the
rails lay upon two crosspieces or sills secured to the cars, but without side pieces or guards to
prevent them from slipping off. According to the testimony of the plaintiff, the men were either
in the rear of the car or at its sides. According to that defendant, some of them were also in front,
hauling by a rope. At a certain spot at or near the water's edge the track sagged, the tie broke, the
car either canted or upset, the rails slid off and caught the plaintiff, breaking his leg, which was
afterwards amputated at about the knee.
This first point for the plaintiff to establish was that the accident happened through the
negligence of the defendant. The detailed description by the defendant's witnesses of the
construction and quality of the track proves that if was up to the general stranded of tramways of
that character, the foundation consisting on land of blocks or crosspieces of wood, by 8 inches
thick and from 8 to 10 feet long laid, on the surface of the ground, upon which at a right angle
rested stringers of the same thickness, but from 24 to 30 feet in length. On the across the
stringers the parallel with the blocks were the ties to which the tracks were fastened. After the
road reached the water's edge, the blocks or crosspieces were replaced with pilling, capped by
timbers extending from one side to the other. The tracks were each about 2 feet wide and the
two inside rails of the parallel tracks about 18 inches apart. It was admitted that there were no
side pieces or guards on the car; that where no ends of the rails of the track met each other and
also where the stringers joined, there were no fish plates. the defendant has not effectually
overcome the plaintiff's proof that the joints between the rails were immediately above the joints
between the underlying stringers.
The cause of the sagging of the tracks and the breaking of the tie, which was the immediate
occasion of the accident, is not clear in the evidence, but is found by the trial court and is
admitted in the briefs and in the argument to have been the dislodging of the crosspiece or piling
under the stringer by the water of the bay raised by a recent typhoon. The superintendent of the
company attributed it to the giving way of the block laid in the sand. No effort was made to
repair the injury at the time of the occurrence. According to plaintiffs witnesses, a depression of
the track, varying from one half inch to one inch and a half, was therafter apparent to the eye,
and a fellow workman of the plaintiff swears that the day before the accident he called the
attention of McKenna, the foreman, to it and asked by simply straightening out the crosspiece,
resetting the block under the stringer and renewing the tie, but otherwise leaving the very same
timbers as before. It has not proven that the company inspected the track after the typhoon or
had any proper system of inspection.
In order to charge the defendant with negligence, it was necessary to show a breach of duty on
its part in failing either to properly secure the load on iron to vehicles transporting it, or to
skillfully build the tramway or to maintain it in proper condition, or to vigilantly inspect and
repair the roadway as soon as the depression in it became visible. It is upon the failure of the
defendant to repair the weakened track, after notice of its condition, that the judge below based
his judgment.
This case presents many important matters for our decision, and first among them is the standard
of duty which we shall establish in our jurisprudence on the part of employees toward
employees.
The lack or the harshness of legal rules on this subject has led many countries to enact designed
to put these relations on a fair basis in the form of compensation or liability laws or the
institution of insurance. In the absence of special legislation we find no difficulty in so applying
the general principles of our law as to work out a just result.
Article 1092 of the Civil Code provides:
Civil obligations, arising from crimes or misdemeanors, shall be governed by the
provisions of the Penal Code.
And article 568 of the latter code provides:
He who shall execute through reckless negligence an act that if done with malice
would constitute a grave crime, shall be punished.
And article 590 provides that the following shall be punished:
4. Those who by simple imprudence or negligence, without committing any infraction
of regulations, shall cause an injury which, had malice intervened, would have
constituted a crime or misdemeanor.
And finally by articles 19 and 20, the liability of owners and employers for the faults of their
servants and representatives is declared to be civil and subsidiary in its character.
It is contented by the defendant, as its first defense to the action, that the necessary conclusion
from these collated laws is that the remedy for injuries through negligence lies only in a criminal
action in which the official criminally responsible must be made primarily liable and his
employer held only subsidiarily to him. According to this theory the plaintiff should have
procured the arrest of the representative of the company accountable for not repairing the tract,
and on his prosecution a suitable fine should have been imposed, payable primarily by him and
secondarily by his employer.
This reasoning misconceived the plan of the Spanish codes upon this subject. Article 1093 of the
Civil Code makes obligations arising from faults or negligence not punished by the law, subject
to the provisions of Chapter 11 of Title XVI. Section 1902 of that chapter reads:
A person who by an act or omission causes damage to another when there is fault or
negligence shall be obliged to repair the damage so done.
 SEC. 1903. The obligation imposed by the preceding article is demandable, not only
for personal acts and omissions, but also for those of the persons for whom they
should be responsible.
The father, and on his death or incapacity, the mother, is liable for the damages caused
by the minors who live with them.
xxx xxx xxx
Owners or directors of an establishment or enterprise are equally liable for the
damages caused by their employees in the service of the branches in which the latter
may be employed or in the performance of their duties.
xxx xxx xxx
The liability referred to in this article shall cease when the persons mentioned therein
prove that they employed all the diligence of a good father of a family to avoid the
damages.
As an answer to the argument urged in this particular action it may be sufficient to point out that
nowhere in our general statutes is the employer penalized for failure to provide or maintain safe
appliances for his workmen. His obligation therefore is one "not punished by the law " and falls
under civil rather than criminal jurisprudence. But the answer may be a broader one. We should
be reluctant, under any conditions, to adopt a forced construction of these scientific codes, such
as is proposed by the defendant, that would rob some of these articles of effect, would shut out
litigants their will from the civil courts, would make the assertion of their rights dependent upon
the selection for prosecution of the proper criminal offender, and render recovery doubtful by
reason of the strict rules of proof prevailing in criminal actions. Even if these articles had always
stood alone, such a construction would be unnecessary, but clear light is thrown upon their
meaning by the provisions of the Law of Criminal Procedure of Spain (Ley de Enjuiciamiento
Criminal), which, though n ever in actual force in these Islands, was formerly given a suppletory
or explanatory effect. Under article 111 of this law, both classes of action, civil and criminal,
might be prosecuted jointly or separately, but while the penal action was pending the civil was
suspended. According to article 112, the penal action once started, the civil remedy should be
sought therewith, unless it had been waived by the party injured or been expressly reserved by
him for civil proceedings for the future. If the civil action alone was prosecuted, arising out of a
crime that could be enforced by only on private complaint, the penal action thereunder should be
extinguished. These provisions are in harmony with those of articles 23 and 133 of our Penal
Code on the same subject.
An examination of this topic might be carried much further, but the citations of these articles
suffices to show that the civil liability was not intended to be merged in the criminal nor even to
be suspended thereby, except as expressly provided by law. Where an individual is civilly liable
for a negligent act or omission, it is not required that the inured party should seek out a third
person criminally liable whose prosecution must be a condition precedent to the enforcement of
the civil right.
Under article 20 of the Penal Code the responsibility of an employer may be regarded as
subsidiary in respect of criminal actions against his employees only while they are process of
prosecution, or in so far as they determinate the existence of the criminal act from which
liability arises, and his obligation under the civil law and its enforcement in the civil courts is
not barred thereby unless by election of the injured person. Inasmuch as no criminal in question,
the provisions of the Penal Code can not affect this action. This construction renders it
unnecessary to finally determine here whether this subsidiary civil liability in penal actions
survived the laws that fully regulated it or has been abrogated by the American civil and
criminal procedure now in force in the Philippines.
The difficulty in construing the articles of the code above cited in this case appears from the
briefs before us to have arisen from the interpretation of the words of article 1093, "fault or
negligence not punished by law," as applied to the comprehensive definition of offenses in
articles 568 and 590 of the Penal Code. It has been shown that the liability of an employer
arising out of his relation to his employee who is the offender is not to be regarded as derived
from negligence punished by the law, within the meaning of articles 1092 and 1093. More than
this, however, it can not be said to fall within the class of acts unpunished by the law, the
consequences of which are regulated by articles 1902 and 1903 of the Civil Code. The acts to
which these articles are applicable are understood to be those and growing out of preexisting
duties of the parties to one another. But were relations already formed give rise to duties,
whether springing from contract or quasi contract, then breaches of those duties are subject to
articles 1101, 1103, and 1104, of the same code. A typical application of the distinction may be
found in the consequences of a railway accident due to defective machinery supplied by the
employer. His liability to his employee would arise out of the contract of employment, that to
the passengers out of the contract for passage. while that to that injured bystander would
originate in the negligent act itself. This distinction is thus clearly set forth by Manresa in his
commentary on article 1093.
We are with reference to such obligations, that culpa, or negligence, may be
understood in two difference senses; either as culpa, substantive and independent,
which on account of its origin arises in an obligation between two persons not
formerly bound by any other obligation; or as an incident in the performance of an
obligation; or as already existed, which can not be presumed to exist without the other,
and which increases the liability arising from the already exiting obligation.
Of these two species of culpa the first one mentioned, existing by itself, may be also
considered as a real source of an independent obligation, and, as chapter 2, title 16 of
this book of the code is devoted to it, it is logical to presume that the reference
contained in article 1093 is limited thereto and that it does not extend to those
provisions relating to the other species of culpa (negligence), the nature of which we
will discuss later. (Vol. 8, p. 29.)
And in his commentary on articles 1102 and 1104 he says that these two species of negligence
may be somewhat inexactly described as contractual and extra-contractual, the letter being
the culpa aquiliana of the Roman law and not entailing so strict an obligation as the former.
This terminology is unreservedly accepted by Sanchez-Roman (Derecho Civil, fourth section,
Chapter XI, Article II, No. 12), and the principle stated is supported be decisions of the supreme
court of Spain, among them those of November 20, 1896 (80 Jurisprudencia Civil, No. 151), and
June 27, 1894 (75 Jurisprudencia Civil, No. 182). The contract is one for hire and not one of
mandate. (March 10, 1897, 81 Jurisprudencia Civil, No. 107.)
Spanish Jurisprudencia prior to the adoption of the Working Men's Accident Law of January 30,
1900, throws uncertain light on the relation between master and workman. Moved by the quick
industrial development of their people, the courts of France early applied to the subject the
principles common to the law of both countries, which are lucidly discussed by the leading
French commentators.
The original French theory, resting the responsibility of owners of industrial enterprises upon
articles 1382, 1383, and 1384 of the Code Napoleon, corresponding in scope to articles 1902
and 1903 of the Spanish Code, soon yielded to the principle that the true basis is the contractual
obligation of the employer and employee. (See 18 Dalloz, 196, Title Travail, 331.)
Later the hardships resulting from special exemptions inserted in contracts for employment led
to the discovery of a third basis for liability in an article of he French Code making the
possessor of any object answerable for damage done by it while in his charge. Our law having
no counterpart of this article, applicable to every kind of object, we need consider neither the
theory growing out of it nor that of "professional risk" more recently imposed by express
legislation, but rather adopting the interpretation of our Civil Code above given, find a rule for
this case in the contractual obligation. This contractual obligation, implied from the relation and
perhaps so inherent in its nature to be invariable by the parties, binds the employer to provide
safe appliances for the use of the employee, thus closely corresponding to English and American
Law. On these principles it was the duty of the defendant to build and to maintain its track in
reasonably sound condition, so as to protect its workingmen from unnecessary danger. It is plain
that in one respect or the other it failed in its duty, otherwise the accident could not have
occurred; consequently the negligence of the defendant is established.
Another contention of the defense is that the injury resulted to the plaintiff as a risk incident to
his employment and, as such, one assumed by him. It is evident that this can not be the case if
the occurrence was due to the failure to repair the track or to duly inspect, it for the employee is
not presumed to have stipulated that the employer might neglect his legal duty. Nor may it be
excused upon the ground that the negligence leading to the accident was that of a fellow-servant
of the injured man. It is not apparent to us that the intervention of a third person can relieve the
defendant from the performance of its duty nor impose upon the plaintiff the consequences of an
act or omission not his own. Sua cuique culpa nocet. This doctrine, known as "the fellow-
servant, rule," we are not disposed to introduce into our jurisprudence. Adopted in England by
Lord Abinger in the case of Prescott vs. Fowler (3 Meeson & Welsby, 1) in 1837, it has since
been effectually abrogated by "the Employers' Liability Acts" and the "Compensation Law."
The American States which applied it appear to be gradually getting rid of it; for instance, the
New York State legislature of 1906 did away with it in respect to railroad companies, and had in
hand a scheme for its total abolition. It has never found place in the civil law of continental
Europe. (Dalloz, vol. 39, 1858, Title Responsibilite, 630, and vol. 15, 1895, same title, 804. Also
more recent instances in Fuzier-Herman, Title Responsibilite Civile, 710.)
The French Cour de Cassation clearly laid down the contrary principle in its judgment of June
28, 1841, in the case of Reygasse, and has since adhered to it.
The most controverted question in the case is that of the negligence of the plaintiff, contributing
to the accident, to what extent it existed in fact and what legal effect is to be given it. In two
particulars is he charged with carelessness:
First. That having noticed the depression in the track he continued his work; and
Second. That he walked on the ends of the ties at the side of the car instead of along the boards,
either before or behind it.
As to the first point, the depression in the track night indicate either a serious or a rival
difficulty. There is nothing in the evidence to show that the plaintiff did or could see the
displaced timber underneath the sleeper. The claim that he must have done so is a conclusion
drawn from what is assumed to have been a probable condition of things not before us, rather
than a fair inference from the testimony. While the method of construction may have been
known to the men who had helped build the road, it was otherwise with the plaintiff who had
worked at this job less than two days. A man may easily walk along a railway without
perceiving a displacement of the underlying timbers. The foreman testified that he knew the
state of the track on the day of the accident and that it was then in good condition, and one
Danridge, a witness for the defendant, working on the same job, swore that he never noticed the
depression in the track and never saw any bad place in it. The sagging of the track this plaintiff
did perceive, but that was reported in his hearing to the foreman who neither promised nor
refused to repair it. His lack of caution in continuing at his work after noticing the slight
depression of the rail was not of so gross a nature as to constitute negligence, barring his
recovery under the severe American rule. On this point we accept the conclusion of the trial
judge who found as facts that "the plaintiff did not know the cause of the one rail being lower
than then other" and "it does not appear in this case that the plaintiff knew before the accident
occurred that the stringers and rails joined in the same place."
Were we not disposed to agree with these findings they would, nevertheless, be binding upon us,
because not "plainly and manifestly against the weight of evidence," as those words of section
497, paragraph 3 of the Code of Civil Procedure were interpreted by the Supreme Court of the
United States in the De la Rama case (201 U. S., 303).
In respect of the second charge of negligence against the plaintiff, the judgment below is not so
specific. While the judge remarks that the evidence does not justify the finding that the car was
pulled by means of a rope attached to the front end or to the rails upon it, and further that the
circumstances in evidence make it clear that the persons necessary to operate the car could not
walk upon the plank between the rails and that, therefore, it was necessary for the employees
moving it to get hold upon it as best they could, there is no specific finding upon the instruction
given by the defendant to its employees to walk only upon the planks, nor upon the necessity of
the plaintiff putting himself upon the ties at the side in order to get hold upon the car. Therefore
the findings of the judge below leave the conduct of the plaintiff in walking along the side of the
loaded car, upon the open ties, over the depressed track, free to our inquiry.
While the plaintiff and his witnesses swear that not only were they not forbidden to proceed in
this way, but were expressly directed by the foreman to do so, both the officers of the company
and three of the workmen testify that there was a general prohibition frequently made known to
all the gang against walking by the side of the car, and the foreman swears that he repeated the
prohibition before the starting of this particular load. On this contradiction of proof we think that
the preponderance is in favor of the defendant's contention to the extent of the general order
being made known to the workmen. If so, the disobedience of the plaintiff in placing himself in
danger contributed in some degree to the injury as a proximate, although not as its primary
cause. This conclusion presents sharply the question, What effect is to be given such an act of
contributory negligence? Does it defeat a recovery, according to the American rule, or is it to be
taken only in reduction of damages?
While a few of the American States have adopted to a greater or less extent the doctrine of
comparative negligence, allowing a recovery by a plaintiff whose own act contributed to his
injury, provided his negligence was slight as compared with that of the defendant, and some
others have accepted the theory of proportional damages, reducing the award to a plaintiff in
proportion to his responsibility for the accident, yet the overwhelming weight of adjudication
establishes the principle in American jurisprudence that any negligence, however slight, on the
part of the person injured which is one of the causes proximately contributing to his injury, bars
his recovery. (English and American Encyclopedia of law, Titles "Comparative Negligence" and
Contributory Negligence.")
In Grant Trunk Railway Company vs. Ives (144 U. S., 408, at page 429) the Supreme Court of
the United States thus authoritatively states the present rule of law:
Although the defendant's' negligence may have been the primary cause of the injury
complained of, yet an action for such injury can not be maintained if the proximate
and immediate cause of the injury can be traced to the want of ordinary care and
caution in the person injured; subject to this qualification, which has grown up in
recent years (having been first enunciated in Davies vs. Mann, 10 M. & W., 546) that
the contributory negligence of the party injured will not defeat the action if it be
shown that the defendant might, by the exercise of reasonable care and prudence, have
avoided the consequences of the injured party's negligence.
There are may cases in the supreme court of Spain in which the defendant was exonerated, but
when analyzed they prove to have been decided either upon the point that he was not negligent
or that the negligence of the plaintiff was the immediate cause of the casualty or that the
accident was due to casus fortuitus. Of the first class in the decision of January 26, 1887
(38 Jurisprudencia Criminal, No. 70), in which a railway employee, standing on a car, was
thrown therefrom and killed by the shock following the backing up of the engine. It was held
that the management of the train and engine being in conformity with proper rules of the
company, showed no fault on its part.
Of the second class are the decision of the 15th of January, the 19th of February, and the 7th of
March, 1902, stated in Alcubilla's Index of that year; and of the third class the decision of the
4th of June, 1888 (64 Jurisprudencia Civil, No. 1), in which the breaking down of plaintiff's
dam by the logs of the defendant impelled against it by the Tajo River, was held due to a freshet
as a fortuitous cause.
The decision of the 7th of March, 1902, on which stress has been laid, rested on two bases, one,
that the defendant was not negligent, because expressly relieved by royal order from the
common obligation imposed by the police law of maintaining a guard at the road crossing; the
other, because the act of the deceased in driving over level ground with unobstructed view in
front of a train running at speed, with the engine whistle blowing was the determining cause of
the accident. It is plain that the train was doing nothing but what it had a right to do and that the
only fault lay with the injured man. His negligence was not contributory, it was sole, and was of
such an efficient nature that without it no catastrophe could have happened.
On the other hand, there are many cases reported in which it seems plain that the plaintiff
sustaining damages was not free from contributory negligence; for instance, the decision of the
14th of December, 1894 (76 Jurisprudencia Civil, No. 134), in which the owner of a building
was held liable for not furnishing protection to workmen engaged in hanging out flags, when the
latter must have perceived beforehand the danger attending the work.
None of those cases define the effect to be given the negligence of a plaintiff which contributed
to his injury as one of its causes, though not the principal one, and we are left to seek the theory
of the civil law in the practice of other countries.
In France in the case of Marquant, August 20, 1879, the cour de cassation held that the
carelessness of the victim did not civilly relieve the person without whose fault the accident
could not have happened, but that the contributory negligence of the injured man had the effect
only of reducing the damages. The same principle was applied in the case of Recullet,
November 10, 1888. and that of Laugier of the 11th of November, 1896. (Fuzier-Herman,
Title Responsibilite Cirile, 411, 412.) Of like tenor are citations in Dalloz (vol. 18, 1806, Title
Trail, 363, 364, and vol. 15, 1895, Title Responsibilite, 193, 198).
In the Canadian Province of Quebee, which has retained for the most part the French Civil Law,
now embodied in a code following the Code Napoleon, a practice in accord with that of France
is laid down in many cases collected in the annotations to article 1053 of the code edited by
Beauchamps, 1904. One of these is Luttrell vs. Trottier, reported in La Revue de Jurisprudence,
volume 6, page 90, in which the court of Kings bench, otherwise known as the court of appeals,
the highest authority in the Dominion of Canada on points of French law, held that contributory
negligence did not exonerate the defendants whose fault had been the immediate cause of the
accident, but entitled him to a reduction of damages. Other similar cases in the provincial courts
have been overruled by appellate tribunals made up of common law judges drawn from other
provinces, who have preferred to impose uniformally throughout the Dominion the English
theory of contributory negligence. Such decisions throw no light upon the doctrines of the civil
law. Elsewhere we find this practice embodied in legislation; for instance, section 2 of article
2398 of the Code of Portugal reads as follows:
If in the case of damage there was fault or negligence on the part of the person injured
or in the part of some one else, the indemnification shall be reduced in the first case,
and in the second case it shall be appropriated in proportion to such fault or negligence
as provided in paragraphs 1 and 2 of section 2372.
And in article 1304 of the Austrian Code provides that the victim who is partly changeable with
the accident shall stand his damages in proportion to his fault, but when that proportion is
incapable of ascertainment, he shall share the liability equally with the person principally
responsible. The principle of proportional damages appears to be also adopted in article 51 of
the Swiss Code. Even in the United States in admirality jurisdictions, whose principles are
derived from the civil law, common fault in cases of collision have been disposed of not on the
ground of contradictor negligence, but on that of equal loss, the fault of the one part being offset
against that of the other. (Ralli vs. Troop, 157 U. S. 386; 97.)
The damage of both being added together and the sum equally divided, a decree is entered in
favor of the vessel sustaining the greater loss against the other for the excess of her damages
over one-half of the aggregate sum. (The Manitoba, 122 U. S., 97)
Exceptional practice appears to prevail in maritime law in other jurisdictions. The Spanish Code
of Commerce, article 827, makes each vessel for its own damage when both are the fault; this
provision restricted to a single class of the maritime accidents, falls for short of a recognition of
the principle of contributory negligence as understood in American Law, with which, indeed, it
has little in common. This is a plain from other articles of the same code; for instance, article
829, referring to articles 826, 827, and 828, which provides: "In the cases above mentioned the
civil action of the owner against the person liable for the damage is reserved, as well as the
criminal liability which may appear."
The rule of the common law, a hard and fast one, not adjustable with respects of the faults of the
parties, appears to have grown out the original method of trial by jury, which rendered difficult a
nice balancing of responsibilities and which demanded an inflexible standard as a safeguard
against too ready symphaty for the injured. It was assumed that an exact measure of several
concurring faults was unattainable.
The reason why, in cases of mutual concurring negligence, neither party can maintain
an action against the other, is, not the wrong of the one is set off against the wrong of
 the other; it that the law can not measure how much of the damage suffered is Q. Now, describe the best you can the character of the track that ran from the place
attributable to the plaintiff's own fault. If he were allowed to recover, it might be that where you loaded the irons from the barge up to the point where you unloaded them
he would obtain from the other party compensation for hiss own misconduct. on the ground.
(Heil vs. Glanding, 42 Penn. St. Rep., 493, 499.) A. Well, it was pretty bad character.
xxx xxx xxx
The parties being mutually in fault, there can be no appointment of damages. The law Q. And you were familiar with the track before that its construction?
has no scales to determine in such cases whose wrongdoing weighed most in the A. Familiar with what?
compound that occasioned the mischief. (Railroad vs. Norton, 24 Penn. St. 565, 469.) Q. Well, you have described it here to the court.
A. Oh, yes; I knew the condition of the track.
Q. You knew its conditions as you have described it here at the time you were
Experience with jury trials in negligence cases has brought American courts to review to relax working around there?
the vigor of the rule by freely exercising the power of setting aside verdicts deemed excessive, A. Yes, sir.
through the device of granting new trials, unless reduced damages are stipulated for, amounting xxx xxx xxx
to a partial revision of damages by the courts. It appears to us that the control by the court of the Q. And while operating it from the side it was necessary for you to step from
subject matter may be secured on a moral logical basis and its judgment adjusted with greater board to board on the cross-ties which extended out over the stringers?
nicety to the merits of the litigants through the practice of offsetting their respective A. Yes, sir.
responsibilities. In the civil law system the desirable end is not deemed beyond the capacity of Q. And these were very of irregular shape, were they not?
its tribunals. A. They were in pretty bad condition.
xxx xxx xxx
Whatever may prove to be the doctrine finally adopted in Spain or in other countries under the Q. And it was not safe to walk along on the outside of these crosspieces?
stress and counter stress of novel schemers of legislation, we find the theory of damages laid A. It was safe if the car stayed on the track. We didn't try to hold the load on. We
down in the judgment the most consistent with the history and the principals of our law in these tried to hold the car back, keep it from going too fast, because we knew the track was
Islands and with its logical development. in bad condition just here, and going down too fast we could be liable to run off most
any time.
Difficulty seems to be apprehended in deciding which acts of the injured party shall be Q. You knew the track was in bad condition when you got hold?
considered immediate causes of the accident. The test is simple. Distinction must be between the A. Sure, it was in bad condition.
accident and the injury, between the event itself, without which there could have been no xxx xxx xxx
accident, and those acts of the victim not entering into it, independent of it, but contributing Q. And the accident took place at that point where you believed it to be so
under review was the displacement of the crosspiece or the failure to replace it. this produced dangerous?
the event giving occasion for damages that is, the shinking of the track and the sliding of the A. Yes, sir.
iron rails. To this event, the act of the plaintiff in walking by the side of the car did not Q. But you knew it was dangerous?
contribute, although it was an element of the damage which came to himself. Had the crosspiece A. Why certainly, anybody could see it; but a workingman had to work in those
been out of place wholly or partly thorough his act of omission of duty, the last would have been days or get arrested for a vag here in Manila.
one of the determining causes of the event or accident, for which he would have been
responsible. Where he contributes to the principal occurrence, as one of its determining factors, The court below, while it found that the plaintiff knew in a general way of the bad condition of
he can not recover. Where, in conjunction with the occurrence, he contributes only to his own the track, found that he was not informed of the exact cause of the accident, namely, the
injury, he may recover the amount that the defendant responsible for the event should pay for washing away of the large crosspiece laid upon the ground or placed upon the posts as the
such injury, less a sum deemed a suitable equivalent for his own imprudence. foundation upon which the stripers rested. This finding of fact to my mind is plainly and
manifestly against the weight of the evidence. Ellis, a witness for the plaintiff, testified that on
Accepting, though with some hesitation, the judgment of the trial court, fixing the damage the morning of the accident he called the attention of McKenna, the foreman, to the defective
incurred by the plaintiff at 5,000 pesos, the equivalent of 2,500 dollars, United States money, we condition of the track at his precise point where the accident happened. His testimony in part is
deduct therefrom 2,500 pesos, the amount fairly attributable to his negligence, and direct as follows:
judgment to be entered in favor of the plaintiff for the resulting sum of 2,500 pesos, with cost of
both instances, and ten days hereafter let the case be remanded to the court below for proper A. I called Mr. McKenna. I showed him the track and told him I didn't think it was
action. So ordered. safe working, and that if he didn't fix it he was liable to have an accident; I told him I
thought if he put fish plates on it would it. He said, you keep on fishing around here
Separate Opinions for fish plates and you will be fishing for another job the first thing you know." He
says, "You see to much."
xxx xxx xxx
WILLARD, J., dissenting: Q. Who else was present at the time you had this conversation with Mr.
McKenna?
The knowledge which the plaintiff had in regard to the condition of the track is indicated by his A. Well, at that conversation as far as I can remember, we were all walking down
own evidence. He testified, among other things, as follows: the track and I know that McCoy and Mr. Blakes was along at the time. I remember
 them two, but we were all walking down the track in a bunch, but I disremember
them.
xxx xxx xxx
Q. Was that the exact language that you used, that you wanted some fish plates put
on?
A. No, sir: I told him to look at that track. I says get some fish plates. I says if
there was any fish plates we would fix that.
Q. What did the fish plates have to do with that?
A. It would have strengthened that joint.
Q. Why didn't you put the 8 by 8 which was washed crossways in place?
A. That would have been taken the raising of the track and digging out along this
upright piece and then putting it up again.
The plaintiff himself testified that he was present with Ellis at the time this conversation was
had with McKenna. It thus appears that on the morning in question the plaintiff and McKenna
were standing directly over the place where the accident happened later in the day. The accident
was caused, as the court below found, by the washing away or displacement of the large 8 by 8
piece of timber. This track was constructed as all other tracks are, all of it open work, with no
floor over the ties, and of course see the ground and the entire construction of the road,
including these large 8 by 8 pieces, the long stringers placed thereon, the ties placed on these
stringers, and the rails placed on the ties. The plaintiff himself must have seen that the 8 by 8
piece of timber was out of place.
If the testimony of the plaintiff's witnesses is to be believed, the displacement was more
markedly apparent even than it would appear from the testimony of the defendant's witnesses.
According to the plaintiff's witnesses, the water at high tide reached the place in question and
these 8 by 8 pieces were therefore not laid upon the ground but were placed upon posts driven
into the ground, the height of the posts at this particular place being, according to the testimony
of the plaintiff's witnesses, from a foot to two feet and a half. As has been said, Ellis testified
that the reason why they did not put the 8 by 8 back in its place was because that would have
required the raising up of the track and digging out along this upright piece and then putting it
up again.
It conclusively appears from the evidence that the plaintiff, before the accident happened, knew
the exact condition of the track and was informed and knew of the defect which caused the
accident. There was no promise on the part of McKenna to repair the track.
Under the circumstances the plaintiff was negligent in placing himself on the side of the car
where he knew that he would be injured by the falling of the rails from the car when they
reached this point in the track where the two stringers were without any support of their ends.
He either should have refused to work at all or he should have placed himself behind the car, on
the other side of it, or in front of it, drawing it with a rope. He was guilty of contributory
negligence and is not entitled to recover.
It is, said however, that contributory negligence on the part of the plaintiff in a case like this is
no defense under the law in force in these Islands. To this proposition I can not agree. The
liability of the defendant is based in the majority opinion upon articles 1101 and 1103 of the
Civil Code.
In order to impose such liability upon the defendant, it must appear that its negligence caused
the accident. The reason why contradictory negligence on the part of the plaintiff is a defense in
this class of cases is that the negligence of the defendant did not alone cause the accident. If
nothing but that negligence had existed, the accident would not have happened and, as I
understand it, in every case in which contradictory negligence is a defense it is made so because
the negligence of the plaintiff is the cause of the accident, to this extent, that if the plaintiff had
not been negligent the accident would not have happened, although the defendant was also
negligent. In other words, the negligence of the defendant is not alone sufficient to cause the
accident. It requires also the negligence of the plaintiff.
There is, so far as I know, nothing in the Civil Code relating to contributory negligence. The
rule of the Roman law was: "Quod quis ex culap sua damnum sentit, no intelligitur damnum
sentire." (Digest, book, 50, tit. 17, rule 203.)
The partidas contain the following provisions:
The just thing is that a man should suffer the damage which comes to him through his
own fault, and that he can not demand reparation therefor from another. (Law 25, tit.
5, partida 3.)
And they even said that when a man received an injury through his own acts, the
grievance should be against himself and not against another. (Law 2, tit. 7, partida 2.)
In several cases in the supreme court of Spain the fact has been negligence that the plaintiff was
himself guilty of negligence, as in the civil judgments of the 4th of June, 1888, and of the 20th
of February, 1887, and in the criminal judgments of the 20th of February 1888, the 90th of
March, 1876, and the 6th of October, 1882. These cases do not throw much light upon the
subject. The judgment of the 7th of March, 1902 (93 Jurisprudencia Civil, 391), is, however,
directly in point. In that case the supreme court of Spain said:
According to the doctrine expressed in article 1902 of the Civil Code, fault or
negligence is a source of obligation when between such negligence and the injury
thereby caused there exists the relation of cause and effect; but in the injury caused
should not be the result of acts or omissions of a third party, the latter has no
obligation to repair the same, even though such acts or omissions were imprudent or
unlawful, and much less when it is shown that the immediate cause of the injury was
the negligence of the injured person party himself.
Found the reasons above stated, and the court below having found that the death of the
deceased was due to his own imprudence, and not therefore due to the absence of a
guard at the grade crossing where the accident occurred, it seems clear that court in
acquitting the railroad company of the complaint filed by the widow did not violate
the provisions of the aforesaid article of the Civil Code.
For the same reason, although the authority granted to the railroad company to open
the grade crossing without a special guard was nullified by the subsequent
promulgation of the railroad police law and the regulations for the execution of the
same, the result would be identical, leaving one of the grounds upon which the
judgment of acquittal is based, to wit, that the accident was caused by the imprudence
of the injured party himself, unaffected.
It appears that the accident in this case took place at a grade crossing where, according to the
claim of the plaintiff, it was the duty of the railroad company to maintain husband was injured
by a train at this crossing, his negligence contributing to the injury according to the ruling of the
court below. This judgment, then, amounts to a holding that a contributory negligence is a
defense according to the law of Spain. (See also judgment of the 21st of October, 1903, vol. 96
p. 400, Jurisprudencia Civil.)

Although in the Civil Code there is no express provision upon the subject, in the Code of
Commerce there is found a distinct declaration upon it in reference to damages caused by
collission at sea. Article 827 of the Code of Commerce is as follows:

If both vessels may be blamed for the collission, each one shall for liable for his own
damages, and both shall jointly responsible for the loss and damages suffered to their
cargoes.

That article is an express recognition of the fact that in collision cases contributory negligence is
a defense,

I do not think that this court is justified in view of the Roman law, of the provisions of
the Partidas, of the judgment of March 7, 1902, of article 827 of the Code of Commerce, and in
the absence of any declaration upon the subject in the Civil Code, in saying that it was the
intention rule announced in the majority opinion, a rule dimetrically opposed to that put in force
by the Code of Commerce.

The chief, is not the only, reason stated in the opinion for adopting the rule that contradictory
negligence is not a defense seems to be that such is the holding of the later French decisions.

As to whether, if any liability existed in this case, it would be necessary in accordance with the
provisions of the Penal Code, or primary, in accordance with the provision of the Civil Code, I
express no opinion.

The judgment should, I think, be reversed and the defendant acquitted of the complaint.

Carson, J., concurs.

G.R. No. L-9356 February 18, 1915
C. S. GILCHRIST, plaintiff-appellee,
vs.
E. A. CUDDY, ET AL., defendants.
JOSE FERNANDEZ ESPEJO and MARIANO ZALDARRIAGA, appellants.
C. Lozano for appellants.
Bruce, Lawrence, Ross and Block for appellee.
TRENT, J.:
An appeal by the defendants, Jose Fernandez Espejo and Mariano Zaldarriaga, from a judgment
of the Court of First Instance of Iloilo, dismissing their cross-complaint upon the merits for
damages against the plaintiff for the alleged wrongful issuance of a mandatory and a preliminary
injunction.
Upon the application of the appellee an ex parte mandatory injunction was issued on the 22d of
May, 1913, directing the defendant, E. A. Cuddy, to send to the appellee a certain
cinematograph film called "Zigomar" in compliance with an alleged contract which had been
entered into between these two parties, and at the time an ex partepreliminary injunction was
issued restraining the appellants from receiving and exhibiting in their theater the Zigomar until
further orders of the court. On the 26th of that month the appellants appeared and moved the
court to dissolve the preliminary injunction. When the case was called for trial on August 6, the
appellee moved for the dismissal of the complaint "for the reason that there is no further
necessity for the maintenance of the injunction." The motion was granted without objection as to
Cuddy and denied as to the appellants in order to give them an opportunity to prove that the
injunction were wrongfully issued and the amount of damages suffered by reason thereof.
The pertinent part of the trial court's findings of fact in this case is as follows:
It appears in this case that Cuddy was the owner of the film Zigomar and that on the
24th of April he rented it to C. S. Gilchrist for a week for P125, and it was to be
delivered on the 26th of May, the week beginning that day. A few days prior to this
Cuddy sent the money back to Gilchrist, which he had forwarded to him in Manila,
saying that he had made other arrangements with his film. The other arrangements
was the rental to these defendants Espejo and his partner for P350 for the week and
the injunction was asked by Gilchrist against these parties from showing it for the
week beginning the 26th of May.
It appears from the testimony in this case, conclusively, that Cuddy willfully violated
his contract, he being the owner of the picture, with Gilchrist because the defendants
had offered him more for the same period. Mr. Espejo at the trial on the permanent
injunction on the 26th of May admitted that he knew that Cuddy was the owner of the
film. He was trying to get it through his agents Pathe Brothers in Manila. He is the
agent of the same concern in Iloilo. There is in evidence in this case on the trial today
as well as on the 26th of May, letters showing that the Pathe Brothers in Manila
advised this man on two different occasions not to contend for this film Zigomar
because the rental price was prohibitive and assured him also that he could not get the
film for about six weeks. The last of these letters was written on the 26th of April,
which showed conclusively that he knew they had to get this film from Cuddy and
from this letter that the agent in Manila could not get it, but he made Cuddy an offer
himself and Cuddy accepted it because he was paying about three times as much as he
had contracted with Gilchrist for. Therefore, in the opinion of this court, the
defendants failed signally to show the injunction against the defendant was wrongfully
procured.
The appellants duly excepted to the order of the court denying their motion for new trial on the
ground that the evidence was insufficient to justify the decision rendered. There is lacking from
the record before us the deposition of the defendant Cuddy, which apparently throws light upon
a contract entered into between him and the plaintiff Gilchrist. The contents of this deposition
are discussed at length in the brief of the appellants and an endeavor is made to show that no
such contract was entered into. The trial court, which had this deposition before it, found that
there was a contract between Cuddy and Gilchrist. Not having the deposition in question before
us, it is impossible to say how strongly it militates against this findings of fact. By a series of
decisions we have construed section 143 and 497 (2) of the Code of Civil Procedure to require
the production of all the evidence in this court. This is the duty of the appellant and, upon his
failure to perform it, we decline to proceed with a review of the evidence. In such cases we rely
entirely upon the pleadings and the findings of fact of the trial court and examine only such
assigned errors as raise questions of law. (Ferrer vs. Neri Abejuela, 9 Phil. Rep., 324;
Valle vs. Galera, 10 Phil. Rep., 619; Salvacion vs. Salvacion, 13 Phil. Rep., 366;
Breta vs. Smith, Bell & Co., 15 Phil. Rep., 446; Arroyo vs. Yulo, 18 Phil. Rep., 236; Olsen &
Co. vs. Matson, Lord & Belser Co., 19 Phil. Rep., 102; Blum vs. Barretto, 19 Phil. Rep., 161;
Cuyugan vs. Aguas, 19 Phil. Rep., 379; Mapa vs. Chaves, 20 Phil. Rep., 147; Mans vs. Garry, 20
Phil. Rep., 134.) It is true that some of the more recent of these cases make exceptions to the
general rule. Thus, in Olsen & Co. vs.Matson, Lord & Belser Co., (19 Phil. Rep., 102), that
portion of the evidence before us tended to show that grave injustice might result from a strict
reliance upon the findings of fact contained in the judgment appealed from. We, therefore, gave
the appellant an opportunity to explain the omission. But we required that such explanation must
show a satisfactory reason for the omission, and that the missing portion of the evidence must be
submitted within sixty days or cause shown for failing to do so. The other cases making
exceptions to the rule are based upon peculiar circumstances which will seldom arise in practice
and need not here be set forth, for the reason that they are wholly inapplicable to the present
case. The appellants would be entitled to indulgence only under the doctrine of the Olsen case.
But from that portion of the record before us, we are not inclined to believe that the missing
deposition would be sufficient to justify us in reversing the findings of fact of the trial court that
the contract in question had been made. There is in the record not only the positive and detailed
testimony of Gilchrist to this effect, but there is also a letter of apology from Cuddy to Gilchrist
in which the former enters into a lengthy explanation of his reasons for leasing the film to
another party. The latter could only have been called forth by a broken contract with Gilchrist to
lease the film to him. We, therefore, fail to find any reason for overlooking the omission of the
defendants to bring up the missing portion of the evidence and, adhering to the general rule
above referred to, proceed to examine the questions of law raised by the appellants.
From the above-quoted findings of fact it is clear that Cuddy, a resident of Manila, was the
owner of the "Zigomar;" that Gilchrist was the owner of a cinematograph theater in Iloilo; that
in accordance with the terms of the contract entered into between Cuddy and Gilchrist the
former leased to the latter the "Zigomar" for exhibition in his (Gilchrist's) theater for the week
beginning May 26, 1913; and that Cuddy willfully violate his contract in order that he might
accept the appellant's offer of P350 for the film for the same period. Did the appellants know
that they were inducing Cuddy to violate his contract with a third party when they induced him
to accept the P350? Espejo admitted that he knew that Cuddy was the owner of the film. He
received a letter from his agents in Manila dated April 26, assuring him that he could not get the
film for about six weeks. The arrangement between Cuddy and the appellants for the exhibition
of the film by the latter on the 26th of May were perfected after April 26, so that the six weeks
would include and extend beyond May 26. The appellants must necessarily have known at the
time they made their offer to Cuddy that the latter had booked or contracted the film for six
weeks from April 26. Therefore, the inevitable conclusion is that the appellants knowingly
induced Cuddy to violate his contract with another person. But there is no specific finding that
the appellants knew the identity of the other party. So we must assume that they did not know
that Gilchrist was the person who had contracted for the film.
The appellants take the position that if the preliminary injunction had not been issued against
them they could have exhibited the film in their theater for a number of days beginning May 26,
and could have also subleased it to other theater owners in the nearby towns and, by so doing,
could have cleared, during the life of their contract with Cuddy, the amount claimed as damages.
Taking this view of the case, it will be unnecessary for us to inquire whether the mandatory
injunction against Cuddy was properly issued or not. No question is raised with reference to the
issuance of that injunction.
The right on the part of Gilchrist to enter into a contract with Cuddy for the lease of the film
must be fully recognized and admitted by all. That Cuddy was liable in an action for damages
for the breach of that contract, there can be no doubt. Were the appellants likewise liable for
interfering with the contract between Gilchrist and Cuddy, they not knowing at the time the
identity of one of the contracting parties? The appellants claim that they had a right to do what
they did. The ground upon which the appellants base this contention is, that there was no valid
and binding contract between Cuddy and Gilchrist and that, therefore, they had a right to
compete with Gilchrist for the lease of the film, the right to compete being a justification for
their acts. If there had been no contract between Cuddy and Gilchrist this defense would be
tenable, but the mere right to compete could not justify the appellants in intentionally inducing
Cuddy to take away the appellee's contractual rights.
Chief Justice Wells in Walker vs. Cronin (107 Mass., 555), said: "Everyone has a right to enjoy
the fruits and advantages of his own enterprise, industry, skill and credit. He has no right to be
free from malicious and wanton interference, disturbance or annoyance. If disturbance or loss
come as a result of competition, or the exercise of like rights by others, it is damnum absque
injuria, unless some superior right by contract or otherwise is interfered with."
In Read vs. Friendly Society of Operative Stonemasons ([1902] 2 K. B., 88), Darling, J., said: "I
think the plaintiff has a cause of action against the defendants, unless the court is satisfied that,
when they interfered with the contractual rights of plaintiff, the defendants had a sufficient
justification for their interference; . . . for it is not a justification that `they acted bona fide in the
best interests of the society of masons,' i. e., in their own interests. Nor is it enough that `they
were not actuated by improper motives.' I think their sufficient justification for interference with
plaintiff's right must be an equal or superior right in themselves, and that no one can legally
excuse himself to a man, of whose contract he has procured the breach, on the ground that he
acted on a wrong understanding of his own rights, or without malice, or bona fide, or in the best
interests of himself, or even that he acted as an altruist, seeking only good of another and
careless of his own advantage." (Quoted with approval in Beekman vs. Marsters, 195 Mass.,
205.)
It is said that the ground on which the liability of a third party for interfering with a contract
between others rests, is that the interference was malicious. The contrary view, however, is
taken by the Supreme Court of the United States in the case of Angle vs. Railway Co. (151 U.
S., 1). The only motive for interference by the third party in that case was the desire to make a
profit to the injury of one of the parties of the contract. There was no malice in the case beyond
the desire to make an unlawful gain to the detriment of one of the contracting parties.
In the case at bar the only motive for the interference with the Gilchrist Cuddy contract on
the part of the appellants was a desire to make a profit by exhibiting the film in their theater.
There was no malice beyond this desire; but this fact does not relieve them of the legal liability
for interfering with that contract and causing its breach. It is, therefore, clear, under the above
authorities, that they were liable to Gilchrist for the damages caused by their acts, unless they
are relieved from such liability by reason of the fact that they did not know at the time the
identity of the original lessee (Gilchrist) of the film.
The liability of the appellants arises from unlawful acts and not from contractual obligations, as
they were under no such obligations to induce Cuddy to violate his contract with Gilchrist. So
that if the action of Gilchrist had been one for damages, it would be governed by chapter 2, title
16, book 4 of the Civil Code. Article 1902 of that code provides that a person who, by act or
omission, causes damages to another when there is fault or negligence, shall be obliged to repair
the damage do done. There is nothing in this article which requires as a condition precedent to
the liability of a tort-feasor that he must know the identity of a person to whom he causes
damages. In fact, the chapter wherein this article is found clearly shows that no such knowledge
is required in order that the injured party may recover for the damage suffered.
But the fact that the appellants' interference with the Gilchrist contract was actionable did not of
itself entitle Gilchrist to sue out an injunction against them. The allowance of this remedy must
be justified under section 164 of the Code of Civil Procedure, which specifies the circumstance
under which an injunction may issue. Upon the general doctrine of injunction we said in
Devesa vs. Arbes (13 Phil. Rep., 273):
An injunction is a "special remedy" adopted in that code (Act No. 190) from
American practice, and originally borrowed from English legal procedure, which was
there issued by the authority and under the seal of a court of equity, and limited, as in
order cases where equitable relief is sought, to cases where there is no "plain,
adequate, and complete remedy at law," which "will not be granted while the rights
between the parties are undetermined, except in extraordinary cases where material
and irreparable injury will be done," which cannot be compensated in damages, and
where there will be no adequate remedy, and which will not, as a rule, be granted, to
take property out of the possession of one party and put it into that of another whose
title has not been established by law.
We subsequently affirmed the doctrine of the Devesa case in Palafox vs. Madamba (19 Phil.,
Rep., 444), and we take this occasion of again affirming it, believing, as we do, that the
indiscriminate use of injunctions should be discouraged.
Does the fact that the appellants did not know at the time the identity of the original lessee of the
film militate against Gilchrist's right to a preliminary injunction, although the appellant's
incurred civil liability for damages for such interference? In the examination of the adjudicated
cases, where in injunctions have been issued to restrain wrongful interference with contracts by
strangers to such contracts, we have been unable to find any case where this precise question
was involved, as in all of those cases which we have examined, the identity of both of the
contracting parties was known to the tort-feasors. We might say, however, that this fact does not
seem to have a controlling feature in those cases. There is nothing in section 164 of the Code of
Civil Procedure which indicates, even remotely, that before an injunction may issue restraining
the wrongful interference with contrast by strangers, the strangers must know the identity of
both parties. It would seem that this is not essential, as injunctions frequently issue against
municipal corporations, public service corporations, public officers, and others to restrain the
commission of acts which would tend to injuriously affect the rights of person whose identity
the respondents could not possibly have known beforehand. This court has held that in a proper
case injunction will issue at the instance of a private citizen to restrain ultra vires acts of public
officials. (Severino vs. Governor-General, 16 Phil. Rep., 366.) So we proceed to the
determination of the main question of whether or not the preliminary injunction ought to have
been issued in this case.
As a rule, injunctions are denied to those who have an adequate remedy at law. Where the
choice is between the ordinary and the extraordinary processes of law, and the former are
sufficient, the rule will not permit the use of the latter. (In re Debs, 158 U. S., 564.) If the injury
is irreparable, the ordinary process is inadequate. In Wahle vs.Reinbach (76 Ill., 322), the
supreme court of Illinois approved a definition of the term "irreparable injury" in the following
language: "By `irreparable injury' is not meant such injury as is beyond the possibility of repair,
or beyond possible compensation in damages, nor necessarily great injury or great damage, but
that species of injury, whether great or small, that ought not to be submitted to on the one hand
or inflicted on the other; and, because it is so large on the one hand, or so small on the other, is
of such constant and frequent recurrence that no fair or reasonable redress can be had therefor in
a court of law." (Quoted with approval in Nashville R. R. Co. vs. McConnell, 82 Fed., 65.)
The case at bar is somewhat novel, as the only contract which was broken was that between
Cuddy and Gilchrist, and the profits of the appellee depended upon the patronage of the public,
for which it is conceded the appellants were at liberty to complete by all fair does not deter the
application of remarked in the case of the "ticket scalpers" (82 Fed., 65), the novelty of the facts
does not deter the application of equitable principles. This court takes judicial notice of the
general character of a cinematograph or motion-picture theater. It is a quite modern form of the
play house, wherein, by means of an apparatus known as a cinematograph or cinematograph, a
series of views representing closely successive phases of a moving object, are exhibited in rapid
sequence, giving a picture which, owing to the persistence of vision, appears to the observer to
be in continuous motion. (The Encyclopedia Britanica, vol. 6, p. 374.) The subjects which have
lent themselves to the art of the photographer in this manner have increased enormously in
recent years, as well as have the places where such exhibition are given. The attendance, and,
consequently, the receipts, at one of these cinematograph or motion-picture theaters depends in
no small degree upon the excellence of the photographs, and it is quite common for the
proprietor of the theater to secure an especially attractive exhibit as his "feature film" and
advertise it as such in order to attract the public. This feature film is depended upon to secure a
larger attendance that if its place on the program were filled by other films of mediocre quality.
It is evident that the failure to exhibit the feature film will reduce the receipts of the theater.
Hence, Gilchrist was facing the immediate prospect of diminished profits by reason of the fact
that the appellants had induced Cuddy to rent to them the film Gilchrist had counted upon as his
feature film. It is quite apparent that to estimate with any decree of accuracy the damages which
Gilchrist would likely suffer from such an event would be quite difficult if not impossible. If he
allowed the appellants to exhibit the film in Iloilo, it would be useless for him to exhibit it again,
as the desire of the public to witness the production would have been already satisfied. In this
extremity, the appellee applied for and was granted, as we have indicated, a mandatory
injunction against Cuddy requiring him to deliver the Zigomar to Gilchrist, and a preliminary
injunction against the appellants restraining them from exhibiting that film in their theater
during the weeks he (Gilchrist) had a right to exhibit it. These injunction saved the plaintiff
harmless from damages due to the unwarranted interference of the defendants, as well as the
difficult task which would have been set for the court of estimating them in case the appellants
had been allowed to carry out their illegal plans. As to whether or not the mandatory injunction
should have been issued, we are not, as we have said, called upon to determine. So far as the
preliminary injunction issued against the appellants is concerned, which prohibited them from
exhibiting the Zigomar during the week which Gilchrist desired to exhibit it, we are of the
opinion that the circumstances justified the issuance of that injunction in the discretion of the
court.
We are not lacking in authority to support our conclusion that the court was justified in issuing
the preliminary injunction against the appellants. Upon the precise question as to whether
injunction will issue to restrain wrongful interference with contracts by strangers to such
contracts, it may be said that courts in the United States have usually granted such relief where
the profits of the injured person are derived from his contractual relations with a large and
indefinite number of individuals, thus reducing him to the necessity of proving in an action
against the tort-feasor that the latter was responsible in each case for the broken contract, or else
obliging him to institute individual suits against each contracting party and so exposing him to a
multiplicity of suits. Sperry & Hutchinson Co. vs.Mechanics' Clothing Co. (128 Fed., 800);
Sperry & Hutchinson Co. vs. Louis Weber & Co. (161 Fed., 219); Sperry & Hutchinson
Co. vs. Pommer (199 Fed., 309); were all cases wherein the respondents were inducing retail
merchants to break their contracts with the company for the sale of the latters' trading stamps.
Injunction issued in each case restraining the respondents from interfering with such contracts.
In the case of the Nashville R. R. Co. vs. McConnell (82 Fed., 65), the court, among other
things, said: "One who wrongfully interferes in a contract between others, and, for the purpose
of gain to himself induces one of the parties to break it, is liable to the party injured thereby; and
his continued interference may be ground for an injunction where the injuries resulting will be
irreparable."
In Hamby & Toomer vs. Georgia Iron & Coal Co. (127 Ga., 792), it appears that the respondents
were interfering in a contract for prison labor, and the result would be, if they were successful,
the shutting down of the petitioner's plant for an indefinite time. The court held that although
there was no contention that the respondents were insolvent, the trial court did not abuse its
discretion in granting a preliminary injunction against the respondents.
In Beekman vs. Marsters (195 Mass., 205), the plaintiff had obtained from the Jamestown Hotel
Corporation, conducting a hotel within the grounds of the Jamestown Exposition, a contract
whereby he was made their exclusive agent for the New England States to solicit patronage for
the hotel. The defendant induced the hotel corporation to break their contract with the plaintiff
in order to allow him to act also as their agent in the New England States. The court held that an
action for damages would not have afforded the plaintiff adequate relief, and that an injunction
was proper compelling the defendant to desist from further interference with the plaintiff's
exclusive contract with the hotel company.
In Citizens' Light, Heat & Power Co. vs. Montgomery Light & Water Power Co. (171 Fed.,
553), the court, while admitting that there are some authorities to the contrary, held that the
current authority in the United States and England is that:
The violation of a legal right committed knowingly is a cause of action, and that it is a
violation of a legal right to interfere with contractual relations recognized by law, if
there be no sufficient justification for the interference. (Quinn vs. Leatham, supra,
510; Angle vs. Chicago, etc., Ry. Co., 151 U. S., 1; 14 Sup. Ct., 240; 38 L. Ed., 55;
Martens vs. Reilly, 109 Wis., 464, 84 N. W., 840; Rice vs. Manley, 66 N. Y., 82; 23
Am. Rep., 30; Bitterman vs. L. & N. R. R. Co., 207 U. S., 205; 28 Sup. Ct., 91; 52 L.
Ed., 171; Beekman vs. Marsters, 195 Mass., 205; 80 N. E., 817; 11 L. R. A. [N. S.]
 201; 122 Am. St. Rep., 232; South Wales Miners' Fed. vs.Glamorgan Coal Co.,
Appeal Cases, 1905, p. 239.)
See also Nims on Unfair Business Competition, pp. 351- 371.
In 3 Elliot on Contracts, section 2511, it is said: "Injunction is the proper remedy to prevent a
wrongful interference with contract by strangers to such contracts where the legal remedy is
insufficient and the resulting injury is irreparable. And where there is a malicious interference
with lawful and valid contracts a permanent injunction will ordinarily issue without proof of
express malice. So, an injunction may be issued where the complainant to break their contracts
with him by agreeing to indemnify who breaks his contracts of employment may be adjoined
from including other employees to break their contracts and enter into new contracts with a new
employer of the servant who first broke his contract. But the remedy by injunction cannot be
used to restrain a legitimate competition, though such competition would involve the violation
of a contract. Nor will equity ordinarily enjoin employees who have quit the service of their
employer from attempting by proper argument to persuade others from taking their places so
long as they do not resort to force or intimidations on obstruct the public thoroughfares."
Beekman vs. Marster, supra, is practically on all fours with the case at bar in that there was only
one contract in question and the profits of the injured person depended upon the patronage of the
public. Hamby & Toomer vs.Georgia Iron & Coal Co., supra, is also similar to the case at bar in
that there was only one contract, the interference of which was stopped by injunction.
For the foregoing reasons the judgment is affirmed, with costs, against the appellants.
Arellano, C.J., Torres, Carson and Araullo, JJ., concur.
Separate Opinions
MORELAND, J., concurring:
The court seems to be of the opinion that the action is one for a permanent injunction; whereas,
under my view of the case, it is one for specific performance. The facts are simple. C. S.
Gilchrist, the plaintiff, proprietor of the Eagle Theater of Iloilo, contracted with E. A. Cuddy,
one of the defendants, of Manila, for a film entitled "Zigomar or Eelskin, 3d series," to be
exhibited in his theater in Iloilo during the week beginning May 26, 1913. Later, the defendants
Espejo and Zaldarriaga, who were also operating a theater in Iloilo, representing Pathe Freres,
also obtained from Cuddy a contract for the exhibition of the film aforesaid in their theater in
Iloilo during the same week.
The plaintiff commenced this action against Cuddy and the defendants Espejo and Zaldarriaga
for the specific performance of the contract with Cuddy. The complaint prays "that the court, by
a mandatory injunction, order Cuddy to deliver, on the 24th of May, 1913, in accordance with
the aforesaid contract, the said film 'Zigomar, 3d series, or Eelskin,' to the plaintiff Gilchrist, in
accordance with the terms of the agreement, so that plaintiff can exhibit the same during the last
week beginning May 26, 1913, in the Eagle Theater, in Iloilo; that the court issue a preliminary
injunction against the defendants Espejo and Zaldarriaga prohibiting them from receiving,
exhibiting, or using said film in Iloilo during the last week of May, 1913, or at any other
time prior to the delivery to the plaintiff ; that, on the trial, said injunction be made perpetual
and that Cuddy be ordered and commanded to specifically perform his contract with the
plaintiff ."
On the filing of the complaint the plaintiff made an application for a mandatory injunction
compelling the defendant Cuddy to deliver to plaintiff the film in question by mailing it to him
from Manila on the 24th of May so that it would reach Iloilo for exhibition on the 26th; and for
a preliminary restraining order against the order two defendants prohibiting them from receiving
or exhibiting the said film prior to its exhibition by plaintiff.
The court, on this application, entered an order which provided that Cuddy should "not send said
film 'Zigomar, 3d series, or Eelskin,' to the defendants Espejo and Zaldarriaga and that he should
send it to the plaintiff, Gilchrist, on the 24th day of May, 1913, in the mail for Iloilo," This order
was duly served on the defendants, including Cuddy, in whose possession the film still was, and,
in compliance therewith Cuddy mailed the film to the plaintiff at Iloilo on the 24th of May. The
latter duly received it and exhibited it without molestation during the week beginning the 26th of
May in accordance with the contract which he claimed to have made with Cuddy.
The defendants Espejo and Zaldarriaga having received due notice of the issuance of the
mandatory injunction and restraining order of the 22d of May, appeared before the court on the
26th of May and moved that the court vacate so much of the order as prohibited them from
receiving and exhibiting the film. In other words, while the order of the 22d of May was
composed of two parts, one a mandatory order for immediate specific performance of the
plaintiff's contract with the defendant Cuddy, and the other a preliminary restraining order
directed to Espejo and Zaldarriaga prohibiting them from receiving and exhibiting the film
during the week beginning the 26th of May, their motion of the 26th of May referred exclusively
to the injunction against them and touched in no way that portion of the order which required
the immediate performance by Cuddy of his contract with Gilchrist. Indeed, the defendants
Espejo and Zaldarriaga did not even except to the order requiring Cuddy to specifically perform
his agreement with the plaintiff nor did they in any way make an objection to or show their
disapproval of it. It was not excepted to or appealed from and is not before this court for review.
The motion of Espejo and Zaldarriaga to vacate the injunction restraining them from receiving
the film was denied on the 26th of May. After the termination of the week beginning May 26th,
and after the exhibition of the film by the plaintiff in accordance with the alleged contract with
Cuddy, the plaintiff came into court and moved that, in view of the fact that he had already
obtained all that he desired to obtain or could obtain by his action, namely, the exhibition of the
film in question during the week beginning May 26th, there was no reason for continuing it and
moved for its dismissal. To this motion Cuddy consented and the action was dismissed as to
him. But the other defendants objected to the dismissal of the action on the ground that they
desired to present to the court evidence showing the damages which they had suffered by reason
of the issuance of the preliminary injunction prohibiting them from receiving and exhibiting the
film in question during the week beginning May 26. The court sustained their objection and
declined to dismiss the action as to them, and, on the 8th of August, heard the evidence as to
damages. He denied defendants the relief asked for and dismissed their claim for damages. They
thereupon took an appeal from that order, and that is the appeal which we have now before us
and which is the subject of the opinion of the court with which I am concurring.
We thus have this strange condition:
An action for specific performance of a contract to deliver a film for exhibition during a given
time. A preliminary mandatory injunction ordering the delivery of the film in accordance with
the contract. The delivery of the film in accordance with the preliminary mandatory injunction.
The actual exhibition of the film during the time specified in the contract. No objection to the
issuance of the mandatory injunction, to the delivery of the film, or to the ground that the
plaintiff had obtained full relief by means of the so-called preliminary remedy by virtue of
which the contract was actually specifically performed before the action was tried. No objection
or exception to the order requiring the specific performance of the contract.
Under such conditions it is possible for the defendant Espejo and Zaldarriaga to secure damages
for the wrongful issuance of the preliminary injunction directed against them even though it be
admitted that it was erroneously issued and that there was no ground therefor whatever? It seems
to me that it is not. At the time this action was begun the film, as we have seen, was in the
possession of Cuddy and, while in his possession, he complied with a command of the court to
deliver it to plaintiff. In pursuance of that command he delivered it to plaintiff, who used it
during the time specified in his contract with Cuddy; or, in other words, he made such use of it
as he desired and then returned it to Cuddy. This order and the delivery of the film under it were
made in an action in which the defendants Espejo and Zaldarriaga were parties, without
objection on their part and without objection or exception to the order. The film having been
delivered to defendants' competitor, the plaintiff, under a decree of the court to which they made
no objection and took no exception and from which they have not appealed, what injury can
they show by reason of the injunction restraining them from making use of the film? If they
themselves, by their conduct, permitted the plaintiff to make it impossible for them to gain
possession of the film and to use it, then the preliminary injunction produced no injury for the
reason that no harm can result from restraining a party from doing a thing which, without such
restraint, it would be impossible for him to do. Moreover, the order for the delivery of the film
to plaintiff was a complete determination of the rights of the parties to the film which, while the
court had no right to make, nevertheless, was valid and binding on all the parties, none of them
objecting or taking exception thereto. Being a complete determination of the rights of the parties
to the action, it should have been the first point attacked by the defendants, as it foreclosed them
completely and, if left in force, eliminating every defense. This order was made on May 22d and
was not excepted to or appealed from. On the 8th of August following the defendants appealed
from the order dismissing their claim to damages but the order for the delivery of the film to
plaintiff was final at that time and is now conclusive on this court.
Section 143 of the Code of Civil Procedure, providing for appeals by bill of exceptions, provides
that "upon the rendition of final judgment disposing of the action, either party shall have the
right to perfect a bill of exceptions for a review by the Supreme Court of all rulings, orders, and
judgment made in the action, to which the party has duly excepted at the time of making such
ruling, order, or judgment." While the order for the delivery of the film to plaintiff was in one
sense a preliminary order, it was in reality a final determination of the rights of the parties to the
film, as it ordered the delivery thereof to plaintiff for his use. If it had been duly excepted to, its
validity could have been attacked in an appeal from the final judgment thereafter entered in the
action. Not having been excepted to as required by the section just referred to, it became final
and conclusive on all the parties to the action, and when, on the 8th day of August following, the
defendants presented their claim for damages based on the alleged wrongful issuance of a
temporary restraining order, the whole foundation of their claim had disappeared by virtue of the
fact that the execution of the order of the 22d of May had left nothing for them to litigate. The
trial court, on the 8th of August, would have been fully justified in refusing to hear the
defendants on their claim for damages. Their right thereto had been adjudicated on the 22d of
May and that adjudication had been duly put into execution without protest, objection or
exception, and was, therefore, final and conclusive on them on the 8th of August.
I have presented this concurring opinion in an attempt to prevent confusion, if any, which might
arise from the theory on which the court decides this case. It seems to me impossible that the
action can be one for a permanent injunction. The very nature of the case demonstrates that a
permanent injunction is out of the question. The only thing that plaintiff desired was to be
permitted to use the film for the week beginning the 26th of May. With the termination of that
week his rights expired. After that time Cuddy was perfectly free to turn the film over to the
defendants Espejo and Zaldarriaga for exhibition at any time. An injunction permanently
prohibiting the defendants from exhibiting the film in Iloilo would have been unjustifiable, as it
was something that plaintiff did not ask and did not want; and would have been an invasion of
the rights of Cuddy as, after the termination of the week beginning May 26, he was at liberty,
under his contract with plaintiff, to rent the film to the defendants Espejo and Zaldarriaga and
permit its exhibition in Iloilo at any time. The plaintiff never asked to have
defendants permanently enjoined from exhibiting the film in Iloilo and no party to the action has
suggested such thing.
The action is one for specific performance purely; and while the court granted plaintiff rights
which should have been granted only after a trial of the action, nevertheless, such right having
been granted before trial and none of the defendants having made objection or taken exception
thereto, and the order granting them having become final, such order became a final
determination of the action, by reason of the nature of the action itself, the rights of the parties
became thereby finally determined and the defendants Espejo and Zaldarriaga, being parties to
the action, were precluded from further litigation relative to the subject matter of the
controversy.
No damages are claimed by reason of the issuance of the mandatory injunction under which the
film was delivered to plaintiff and used by him during the week beginning the 26th of May.
While the opinion says in the first paragraph that the action is "for damages against the plaintiff
for the alleged wrongful issuance of a mandatory and preliminary injunction," the opinion also
says in a latter portion that "It will be unnecessary for us to inquire whether the mandatory
injunction against Cuddy was properly issued or not. No question is raised with reference to the
issuance of that injunction;" and still later it is also stated that "as to whether or not the
mandatory injunction should have been issued, we are not, as we have said, called upon to
determine." I repeat that no objection was made by the defendants to the issuance of the
mandatory injunction, no exception was taken to the order on which it was issued and no appeal
has been taken therefrom. That order is now final and conclusive and was at the time this appeal
was taken. That being so, the rights of the defendants were foreclosed thereby. The defendants
Espejo and Zaldarriaga cannot now be heard to say that they were damaged by the issuance of
the preliminary restraining injunction issued on the same day as the mandatory injunction.
From what has been said it is clear, it seems to me, that the question of a breach of contract by
inducement, which is substantially the only question discussed and decided, is not in the case in
reality and, in my judgment, should not be touched upon. Courts will not proceed with a
litigation and discuss and decided question which might possibly be involved in the case when it
clearly appears that there remains nothing about which to litigate, the whole subject matter of
the original action having been settled and the parties having no real controversy to present. At
the time the defendants Espejo and Zaldarriaga offered their claim for damages arising out of the
wrongful issuance of the restraining order, there was nothing between them and the plaintiff to
litigate, the rightfulness of plaintiff's demand having already been finally adjudicated and
determined in the same action.

[G.R. No. 129029. April 3, 2000]
RAFAEL REYES TRUCKING CORPORATION, petitioner, vs. PEOPLE OF THE
PHILIPPINES and ROSARIO P. DY (for herself and on behalf of the minors Maria
Luisa, Francis Edward, Francis Mark and Francis Rafael, all surnamed Dy), respondents.
DECISION
PARDO, J.:
The case is an appeal via certiorari from the amended decision[1] of the Court of
Appeals[2]affirming the decision and supplemental decision of the trial court,[3] as follows:
"IN VIEW OF THE FOREGOING, judgment is hereby rendered dismissing
the appeals interposed by both accused and Reyes Trucking Corporation and
affirming the Decision and Supplemental Decision dated June 6, 1992 and
October 26, 1992 respectively.
"SO ORDERED."[4]
The facts are as follows:
On October 10, 1989, Provincial Prosecutor Patricio T. Durian of Isabela filed with the Regional
Trial Court, Isabela, Branch 19, Cauayan an amended information charging Romeo Dunca y de
Tumol with reckless imprudence resulting in double homicide and damage to property, reading
as follows:
"That on or about the 20th day of June, 1989, in the Municipality of
Cauayan, Province of Isabela, Philippines, and within the jurisdiction of this
Honorable Court, the said accused being the driver and person-in-charge of
a Trailer Truck Tractor bearing Plate No. N2A-867 registered in the name of
Rafael Reyes Trucking Corporation, with a load of 2,000 cases of empty
bottles of beer grande, willfully, unlawfully and feloniously drove and
operated the same while along the National Highway of Barangay Tagaran,
in said Municipality, in a negligent, careless and imprudent manner, without
due regard to traffic laws, rules and ordinances and without taking the
necessary precautions to prevent injuries to persons and damage to property,
causing by such negligence, carelessness and imprudence the said trailer
truck to hit and bump a Nissan Pick-up bearing Plate No. BBG-957 driven
by Feliciano Balcita and Francisco Dy, Jr., @ Pacquing, due to irreversible
shock, internal and external hemorrhage and multiple injuries, open wounds,
abrasions, and further causing damages to the heirs of Feliciano Balcita in
the amount of P100,000.00 and to the death of Francisco Dy, Jr.; @
Pacquing and damages to his Nissan Pick-Up bearing Plate No. BBG-957 in
the total amount of P2,000,000.00.
"CONTRARY TO LAW.
"Cauayan, Isabela, October 10, 1989.
"(Sgd.) FAUSTO C. CABANTAC
"Third Assistant Provincial Prosecutor"
Upon arraignment on October 23, 1989, the accused entered a plea of not guilty. On the same
occasion, the offended parties (Rosario P. Dy and minor children and Angelina M. Balcita and
minor son Paolo) made a reservation to file a separate civil action against the accused arising
from the offense charged.[5] On November 29, 1989, the offended parties actually filed with the
Regional Trial Court, Isabela, Branch 19, Cauayan a complaint against petitioner Rafael Reyes
Trucking Corporation, as employer of driver Romeo Dunca y de Tumol, based on quasi delict.
The petitioner settled the claim of the heirs of Feliciano Balcita (the driver of the other vehicle
involved in the accident). The private respondents opted to pursue the criminal action but did
not withdraw the civil case quasi ex delicto they filed against petitioner. On December 15, 1989,
private respondents withdrew the reservation to file a separate civil action against the accused
and manifested that they would prosecute the civil aspect ex delicto in the criminal
action.[6] However, they did not withdraw the separate civil action based on quasi delict against
petitioner as employer arising from the same act or omission of the accused driver.[7]
Upon agreement of the parties, the trial court consolidated both criminal and civil cases and
conducted a joint trial of the same.
The facts, as found by the trial court, which appear to be undisputed, are as follows:
"The defendant Rafael Reyes Trucking Corporation is a domestic
corporation engaged in the business of transporting beer products for the
San Miguel Corporation (SMC for short) from the latters San Fernando,
Pampanga plant to its various sales outlets in Luzon. Among its fleets of
vehicles for hire is the white truck trailer described above driven by Romeo
Dunca y Tumol, a duly licensed driver. Aside from the Corporations
memorandum to all its drivers and helpers to physically inspect their
vehicles before each trip (Exh. 15, pars. 4 & 5), the SMCs Traffic
Investigator-Inspector certified the roadworthiness of this White Truck
trailer prior to June 20, 1989 (Exh. 17). In addition to a professional drivers
license, it also conducts a rigid examination of all driver applicants before
they are hired.
"In the early morning of June 20, 1989, the White Truck driven by Dunca
left Tuguegarao, Cagayan bound to San Fernando, Pampanga loaded with
2,000 cases of empty beer "Grande" bottles. Seated at the front right seat
beside him was Ferdinand Domingo, his truck helper ("pahinante" in
Pilipino). At around 4:00 oclock that same morning while the truck was
descending at a slight downgrade along the national road at Tagaran,
Cauayan, Isabela, it approached a damaged portion of the road covering the
full width of the trucks right lane going south and about six meters in length.
These made the surface of the road uneven because the potholes were about
five to six inches deep. The left lane parallel to this damaged portion is
smooth. As narrated by Ferdinand Domingo, before approaching the
potholes, he and Dunca saw the Nissan with its headlights on coming from
the opposite direction. They used to evade this damaged road by taking the
left lance but at that particular moment, because of the incoming vehicle,
they had to run over it. This caused the truck to bounce wildly. Dunca lost
 control of the wheels and the truck swerved to the left invading the lane of
the Nissan. As a result, Duncas vehicle rammed the incoming Nissan
dragging it to the left shoulder of the road and climbed a ridge above said
shoulder where it finally stopped. (see Exh. A-5, p. 8, record). The Nissan
was severely damaged (Exhs. A-7, A-8, A-9 and A-14, pp. 9-11, record),
and its two passengers, namely: Feliciano Balcita and Francisco Dy, Jr. died
instantly (Exh. A-19) from external and internal hemorrhage and multiple
fractures (pp. 15 and 16, record).
"For the funeral expenses of Francisco Dy, Jr. her widow spent P651,360.00
(Exh. I-3). At the time of his death he was 45 years old. He was the
President and Chairman of the Board of the Dynamic Wood Products and
Development Corporation (DWPC), a wood processing establishment, from
which he was receiving an income of P10,000.00 a month (Exh. D). In the
Articles of Incorporation of the DWPC, the spouses Francisco Dy, Jr. and
Rosario Perez Dy appear to be stockholders of 10,000 shares each with par
value of P100.00 per share out of its outstanding and subscribed capital
stock of 60,000 shares valued at P6,000,000.00 (Exhs. K-1 & 10-B). Under
its 1988 Income Tax Returns (Exh. J) the DWPC had a taxable net income
of P78,499.30 (Exh. J). Francisco Dy, Jr. was a La Salle University graduate
in Business Administration, past president of the Pasay Jaycees, National
Treasurer and President of the Philippine Jaycees in 1971 and 1976,
respectively, and World Vice-President of Jaycees International in 1979. He
was also the recipient of numerous awards as a civic leader (Exh. C). His
children were all studying in prestigious schools and spent about
P180,000.00 for their education in 1988 alone (Exh. H-4).
"As stated earlier, the plaintiffs procurement of a writ of attachment of the
properties of the Corporation was declared illegal by the Court of Appeals.
It was shown that on December 26, 1989, Deputy Sheriff Edgardo Zabat of
the RTC at San Fernando, Pampanga, attached six units of Truck Tractors
and trailers of the Corporation at its garage at San Fernando, Pampanga.
These vehicles were kept under PC guard by the plaintiffs in said garage
thus preventing the Corporation to operate them. However, on December 28,
1989, the Court of Appeals dissolved the writ (p. 30, record) and on
December 29, 1989, said Sheriff reported to this Court that the attached
vehicles were taken by the defendants representative, Melita Manapil (Exh.
O, p. 31, record). The defendants general Manager declared that it lost
P21,000.00 per day for the non-operation of the six units during their
attachment (p. 31, t.s.n., Natividad C. Babaran, proceedings on December
10, 1990)."[8]
On June 6, 1992, the trial court rendered a joint decision, the dispositive portion of which reads
as follows:
"WHEREFORE, in view of the foregoing considerations judgment is hereby
rendered:
"1. Finding the accused Romeo Dunca y de Tumol guilty beyond reasonable
doubt of the crime of Double Homicide through Reckless Imprudence with
violation of the Motor Vehicle Law (Rep. Act No. 4136), and appreciating
in his favor the mitigating circumstance of voluntary surrender without any
aggravating circumstance to offset the same, the Court hereby sentences him
to suffer two (2) indeterminate penalties of four months and one day of
arresto mayor as minimum to three years, six months and twenty days as
maximum; to indemnify the Heirs of Francisco Dy. Jr. in the amount of
P3,000,000.00 as compensatory damages, P1,000,000.00 as moral damages,
and P1,030,000.00 as funeral expenses;
"2. Ordering the plaintiff in Civil Case No. Br. 19-424 to pay the defendant
therein actual damages in the amount of P84,000.00; and
"3. Ordering the dismissal of the complaint in Civil Case No. Br. 19-424.
"No pronouncement as to costs.
"SO ORDERED.
"Cauayan, Isabela, June 6, 1992.
"(Sgd.) ARTEMIO R. ALIVIA
"Regional Trial Judge"[9]
On September 3, 1992, petitioner and the accused filed a notice of appeal from the joint
decision.[10]
On the other hand, private respondents moved for amendment of the dispositive portion of the
joint decision so as to hold petitioner subsidiarily liable for the damages awarded to the private
respondents in the event of insolvency of the accused.[11]
On October 26, 1992, the trial court rendered a supplemental decision amending the dispositive
portion by inserting an additional paragraph reading as follows:
"2:A Ordering the defendant Reyes Trucking Corporation subsidiarily liable
for all the damages awarded to the heirs of Francisco Dy, Jr., in the event of
insolvency of the accused but deducting therefrom the damages of
P84,000.00 awarded to said defendant in the next preceding paragraph; and
x x x"[12]
On November 12, 1992, petitioner filed with the trial court a supplemental notice of appeal from
the supplemental decision.[13]
During the pendency of the appeal, the accused jumped bail and fled to a foreign country. By
resolution dated December 29, 1994, the Court of Appeals dismissed the appeal of the accused
in the criminal case.[14]
On January 6, 1997, the Court of Appeals rendered an amended decision affirming that of the
trial court, as set out in the opening paragraph of this decision.[15]
On January 31, 1997, petitioner filed a motion for reconsideration of the amended decision. [16]
On April 21, 1997, the Court of Appeals denied petitioners motion for reconsideration for lack
of merit.[17]
Hence, this petition for review.[18]
On July 21, 1997, the Court required respondents to comment on the petition within ten (10)
days from notice.[19]
On January 27, 1998, the Solicitor General filed his comment. [20] On April 13, 1998, the Court
granted leave to petitioner to file a reply and noted the reply it filed on March 11, 1998. [21]
We now resolve to give due course to the petition and decide the case.
Petitioner raises three (3) grounds for allowance of the petition, which, however, boil down to
two (2) basic issues, namely:
1.....May petitioner as owner of the truck involved in the accident be held
subsidiarily liable for the damages awarded to the offended parties in the
criminal action against the truck driver despite the filing of a separate civil
action by the offended parties against the employer of the truck driver?
2.....May the Court award damages to the offended parties in the criminal
case despite the filing of a civil action against the employer of the truck
driver; and in amounts exceeding that alleged in the information for reckless
imprudence resulting in homicide and damage to property?[22]
We grant the petition, resolving under the circumstances pro hac vice to remand the cases to the
trial court for determination of the civil liability of petitioner as employer of the accused driver
in the civil action quasi ex delicto re-opened for the purpose.
In negligence cases, the aggrieved party has the choice between (1) an action to enforce civil
liability arising from crime under Article 100 of the Revised Penal Code; and (2) a separate
action for quasi delict under Article 2176 of the Civil Code of the Philippines. Once the choice
is made, the injured party can not avail himself of any other remedy because he may not recover
damages twice for the same negligent act or omission of the accused.[23] This is the rule against
double recovery.
In other words, "the same act or omission can create two kinds of liability on the part of the
offender, that is, civil liability ex delicto, and civil liability quasi delicto" either of which "may
be enforced against the culprit, subject to the caveat under Article 2177 of the Civil Code that
the offended party can not recover damages under both types of liability."[24]
In the instant case, the offended parties elected to file a separate civil action for damages against
petitioner as employer of the accused, based on quasi delict, under Article 2176 of the Civil
Code of the Philippines. Private respondents sued petitioner Rafael Reyes Trucking Corporation,
as the employer of the accused, to be vicariously liable for the fault or negligence of the latter.
Under the law, this vicarious liability of the employer is founded on at least two specific
provisions of law.
The first is expressed in Article 2176 in relation to Article 2180 of the Civil Code, which would
allow an action predicated on quasi-delict to be instituted by the injured party against the
employer for an act or omission of the employee and would necessitate only a preponderance of
evidence to prevail. Here, the liability of the employer for the negligent conduct of the
subordinate is direct and primary, subject to the defense of due diligence in the selection and
supervision of the employee. The enforcement of the judgment against the employer in an action
based on Article 2176 does not require the employee to be insolvent since the nature of the
liability of the employer with that of the employee, the two being statutorily considered joint
tortfeasors, is solidary.[25] The second, predicated on Article 103 of the Revised Penal Code,
provides that an employer may be held subsidiarily civilly liable for a felony committed by his
employee in the discharge of his duty. This liability attaches when the employee is convicted of
a crime done in the performance of his work and is found to be insolvent that renders him
unable to properly respond to the civil liability adjudged.[26]
As regards the first issue, the answer is in the negative. Rafael Reyes Trucking Corporation, as
employer of the accused who has been adjudged guilty in the criminal case for reckless
imprudence, can not be held subsidiarily liable because of the filing of the separate civil action
based on quasi delict against it. In view of the reservation to file, and the subsequent filing of
the civil action for recovery of civil liability, the same was not instituted with the criminal
action. Such separate civil action was for recovery of damages under Article 2176 of the Civil
Code, arising from the same act or omission of the accused. [27]
Pursuant to the provision of Rule 111, Section 1, paragraph 3 of the 1985 Rules of Criminal
Procedure, when private respondents, as complainants in the criminal action, reserved the right
to file the separate civil action, they waived other available civil actions predicated on the same
act or omission of the accused-driver. Such civil action includes the recovery of indemnity under
the Revised Penal Code, and damages under Articles 32, 33, and 34 of the Civil Code of the
Philippines arising from the same act or omission of the accused.[28]
The intention of private respondents to proceed primarily and directly against petitioner as
employer of accused truck driver became clearer when they did not ask for the dismissal of the
civil action against the latter based on quasi delict.
Consequently, the Court of Appeals and the trial court erred in holding the accused civilly liable,
and petitioner-employer of the accused subsidiarily liable for damages arising from crime (ex
delicto) in the criminal action as the offended parties in fact filed a separate civil action against
the employer based on quasi delict resulting in the waiver of the civil action ex delicto.
It might be argued that private respondents as complainants in the criminal case withdrew the
reservation to file a civil action against the driver (accused) and manifested that they would
pursue the civil liability of the driver in the criminal action. However, the withdrawal is
ineffective to reverse the effect of the reservation earlier made because private respondents did
not withdraw the civil action against petitioner based on quasi delict. In such a case, the
provision of Rule 111, Section 1, paragraph 3 of the 1985 Rules on Criminal Procedure is clear
that the reservation to file or the filing of a separate civil action results in a waiver of other
available civil actions arising from the same act or omission of the accused. Rule 111, Section 1,
paragraph 2 enumerated what are the civil actions deemed waived upon such reservation or
filing, and one of which is the civil indemnity under the Revised Penal Code. Rule 111, Section
1, paragraph 3 of the 1985 Rules on Criminal Procedure specifically provides:
 "A waiver of any of the civil actions extinguishes the others. The institution
of, or the reservation of the right to file, any of said civil actions separately
waives the others."
The rationale behind this rule is the avoidance of multiple suits between the same litigants
arising out of the same act or omission of the offender. The restrictive phraseology of the section
under consideration is meant to cover all kinds of civil actions, regardless of their source in law,
provided that the action has for its basis the same act or omission of the offender.[29]
However, petitioner as defendant in the separate civil action for damages filed against it, based
on quasi delict, may be held liable thereon. Thus, the trial court grievously erred in dismissing
plaintiffs civil complaint. And the Court of Appeals erred in affirming the trial courts decision.
Unfortunately private respondents did not appeal from such dismissal and could not be granted
affirmative relief.[30]
The Court, however, in exceptional cases has relaxed the rules "in order to promote their
objectives and assist the parties in obtaining just, speedy, and inexpensive determination of
every action or proceeding"[31] or exempted "a particular case from the operation of the
rules."[32]
Invoking this principle, we rule that the trial court erred in awarding civil damages in the
criminal case and in dismissing the civil action. Apparently satisfied with such award, private
respondent did not appeal from the dismissal of the civil case. However, petitioner did appeal.
Hence, this case should be remanded to the trial court so that it may render decision in the civil
case awarding damages as may be warranted by the evidence.[33]
With regard to the second issue, the award of damages in the criminal case was improper
because the civil action for the recovery of civil liability was waived in the criminal action by
the filing of a separate civil action against the employer. As enunciated in Ramos vs.
Gonong,[34] "civil indemnity is not part of the penalty for the crime committed." The only issue
brought before the trial court in the criminal action is whether accused Romeo Dunca y de
Tumol is guilty of reckless imprudence resulting in homicide and damage to property. The
action for recovery of civil liability is not included therein, but is covered by the separate civil
action filed against the petitioner as employer of the accused truck-driver.
In this case, accused-driver jumped bail pending his appeal from his conviction. Thus, the
judgment convicting the accused became final and executory, but only insofar as the penalty in
the criminal action is concerned. The damages awarded in the criminal action was invalid
because of its effective waiver. The pronouncement was void because the action for recovery of
the civil liability arising from the crime has been waived in said criminal action.
With respect to the issue that the award of damages in the criminal action exceeded the amount
of damages alleged in the amended information, the issue is de minimis. At any rate, the trial
court erred in awarding damages in the criminal case because by virtue of the reservation of the
right to bring a separate civil action or the filing thereof, "there would be no possibility that the
employer would be held liable because in such a case there would be no pronouncement as to
the civil liability of the accused.[35]
As a final note, we reiterate that "the policy against double recovery requires that only one
action be maintained for the same act or omission whether the action is brought against the
employee or against his employer.[36] The injured party must choose which of the available
causes of action for damages he will bring.[37]
Parenthetically, the trial court found the accused "guilty beyond reasonable doubt of the crime
of Double Homicide Through Reckless Imprudence with violation of the Motor Vehicle Law
(Rep. Act No. 4136)." There is no such nomenclature of an offense under the Revised Penal
Code. Thus, the trial court was misled to sentence the accused "to suffer two (2) indeterminate
penalties of four (4) months and one (1) day of arresto mayor, as minimum, to three (3) years,
six (6) months and twenty (20) days of prision correccional, as maximum." This is erroneous
because in reckless imprudence cases, the actual penalty for criminal negligence bears no
relation to the individual willful crime or crimes committed, but is set in relation to a whole
class, or series of crimes.[38]
Unfortunately, we can no longer correct this judgment even if erroneous, as it is, because it has
become final and executory.
Under Article 365 of the Revised Penal Code, criminal negligence "is treated as a
mere quasi offense, and dealt with separately from willful offenses. It is not a question of
classification or terminology. In intentional crimes, the act itself is punished; in negligence or
imprudence, what is principally penalized is the mental attitude or condition behind the act, the
dangerous recklessness, lack of care or foresight, the imprudencia punible. Much of the
confusion has arisen from the common use of such descriptive phrase as homicide through
reckless imprudence, and the like; when the strict technical sense is, more accurately, reckless
imprudence resulting in homicide; or simple imprudence causing damages to property."[39]
There is need, therefore, to rectify the designation of the offense without disturbing the imposed
penalty for the guidance of bench and bar in strict adherence to precedent.
WHEREFORE, the Court GRANTS the petition and SETS ASIDE the amended decision and
resolution of the Court of Appeals in CA-G. R. CR No. 14448, promulgated on January 6, 1997,
and the joint decision of the Regional Trial Court, Isabela, Branch 19, Cauayan, in Criminal
Case No. Br. 19-311 and Civil Case No. Br. 19-424, dated June 6, 1992.
IN LIEU THEREOF, the Court renders judgment as follows:
(1) In Criminal Case No. Br. 19-311, the Court declares the accused Romeo Dunca y de Tumol
guilty beyond reasonable doubt of reckless imprudence resulting in homicide and damage to
property, defined and penalized under Article 365, paragraph 2 of the Revised Penal Code, with
violation of the automobile law (R. A. No. 4136, as amended), and sentences him to suffer two
(2) indeterminate penalties of four (4) months and one (1) day of arresto mayor, as minimum, to
three (3) years, six (6) months and twenty (20) days of prision correccional, as
maximum,[40] without indemnity, and to pay the costs, and
(2) In Civil Case No. Br. 19-424, the Court orders the case re-opened to determine the liability
of the defendant Rafael Reyes Trucking Corporation to plaintiffs and that of plaintiffs on
defendants counterclaim.
No costs in this instance.
SO ORDERED.
G.R. No. 110295 October 18, 1993
COCA-COLA BOTTLERS PHILIPPINES, INC.,
vs.
THE HONORABLE COURT OF APPEALS (Fifth Division) and MS. LYDIA
GERONIMO, respondents.
DAVIDE, JR., J.:
This case concerns the proprietress of a school canteen which had to close down as a
consequence of the big drop in its sales of soft drinks triggered by the discovery of foreign
substances in certain beverages sold by it. The interesting issue posed is whether the subsequent
action for damages by the proprietress against the soft drinks manufacturer should be treated as
one for breach of implied warranty against hidden defects or merchantability, as claimed by the
manufacturer, the petitioner herein which must therefore be filed within six months from the
delivery of the thing sold pursuant to Article 1571 of the Civil Code, or one for quasi-delict, as
held by the public respondent, which can be filed within four years pursuant to Article 1146 of
the same Code.
On 7 May 1990, Lydia L. Geronimo, the herein private respondent, filed a complaint for
damages against petitioner with the Regional Trial Court (RTC) of Dagupan City. 1 The case
was docketed as Civil Case No. D-9629. She alleges in her complaint that she was the
proprietress of Kindergarten Wonderland Canteen docketed as located in Dagupan City, an
enterprise engaged in the sale of soft drinks (including Coke and Sprite) and other goods to the
students of Kindergarten Wonderland and to the public; on or about 12 August 1989, some
parents of the students complained to her that the Coke and Sprite soft drinks sold by her
contained fiber-like matter and other foreign substances or particles; he then went over her stock
of softdrinks and discovered the presence of some fiber-like substances in the contents of some
unopened Coke bottles and a plastic matter in the contents of an unopened Sprite bottle; she
brought the said bottles to the Regional Health Office of the Department of Health at San
Fernando, La Union, for examination; subsequently, she received a letter from the Department
of Health informing her that the samples she submitted "are adulterated;" as a consequence of
the discovery of the foreign substances in the beverages, her sales of soft drinks severely
plummeted from the usual 10 cases per day to as low as 2 to 3 cases per day resulting in losses
of from P200.00 to P300.00 per day, and not long after that she had to lose shop on 12
December 1989; she became jobless and destitute; she demanded from the petitioner the
payment of damages but was rebuffed by it. She prayed for judgment ordering the petitioner to
pay her P5,000.00 as actual damages, P72,000.00 as compensatory damages, P500,000.00 as
moral damages, P10,000.00 as exemplary damages, the amount equal to 30% of the damages
awarded as attorney's fees, and the costs. 2
The petitioner moved to dismiss 3 the complaint on the grounds of failure to exhaust
administrative remedies and prescription. Anent the latter ground, the petitioner argued that
since the complaint is for breach of warranty under Article 1561 of the said Code. In her
Comment 4 thereto, private respondent alleged that the complaint is one for damages which does
not involve an administrative action and that her cause of action is based on an injury to
plaintiff's right which can be brought within four years pursuant to Article 1146 of the Civil
Code; hence, the complaint was seasonably filed. Subsequent related pleadings were thereafter
filed by the parties. 5
In its Order of 23 January1991, 6 the trial court granted the motion to dismiss. It ruled that the
doctrine of exhaustion of administrative remedies does not apply as the existing administrative
remedy is not adequate. It also stated that the complaint is based on a contract, and not on quasi-
delict, as there exists pre-existing contractual relation between the parties; thus, on the basis of
Article 1571, in relation to Article 1562, the complaint should have been filed within six months
from the delivery of the thing sold.
Her motion for the reconsideration of the order having been denied by the trial court in its Order
of 17 April 1991, 7the private respondent came to this Court via a petition for review
on certiorari which we referred to the public respondent "for proper determination and
disposition. 8 The public respondent docketed the case as CA-G.R. SP No. 25391.
In a decision promulgated on 28 January 1992, 9 the public respondent annulled the questioned
orders of the RTC and directed it to conduct further proceedings in Civil Case No. D-9629. In
holding for the private respondent, it ruled that:
Petitioner's complaint being one for quasi-delict, and not for breach of
warranty as respondent contends, the applicable prescriptive period is four
years.
It should be stressed that the allegations in the complaint plainly show that it
is an action or damages arising from respondent's act of "recklessly and
negligently manufacturing adulterated food items intended to be sold or
public consumption" (p. 25, rollo). It is truism in legal procedure that what
determines the nature of an action are the facts alleged in the complaint and
those averred as a defense in the defendant's answer (I Moran 126; Calo v.
Roldan, 76 Phil. 445; Alger Electric, Inc. v. CA, 135 SCRA 340).
Secondly, despite the literal wording of Article 2176 of the Civil code, the
existence of contractual relations between the parties does not absolutely
preclude an action by one against the other for quasi-delict arising from
negligence in the performance of a contract.
In Singson v. Court of Appeals (23 SCRA 1117), the Supreme Court ruled:
It has been repeatedly held: that the existence of a
contract between the parties does not bar the
commission of a tort by the one against the other and the
consequent recovery of damages therefor
. . . . Thus in Air France vs. Carrascoso, . . . (it was held
that) although the relation between a passenger and a
carrier is "contractual both in origin and in nature the act
that breaks the contract may also be a tort.
Significantly, in American jurisprudence, from which Our law on Sales was
taken, the authorities are one in saying that he availability of an action or
breach of warranty does not bar an action for torts in a sale of defective
goods. 10
Its motion for the reconsideration of the decision having been denied by the public respondent in
its Resolution of 14 May 1993, 11 the petitioner took his recourse under Rule 45 of the Revised
Rules of Court. It alleges in its petition that:
I.
 THE HONORABLE COURT OF APPEALS COMMITTED A GRAVE
AND REVERSIBLE ERROR IN RULING THAT ARTICLE 2176, THE
GENERAL PROVISION ON QUASI-DELICTS, IS APPLICABLE IN
THIS CASE WHEN THE ALLEGATIONS OF THE COMPLAINT
CLEARLY SHOW THAT PRIVATE RESPONDENT'S CAUSE OF
ACTION IS BASEDON BREACH OF A SELLER'S IMPLIED
WARRANTIES UNDER OUR LAW ON SALES.
II.
CORROLARILY, THE HONORABLE COURT OF APPEALS
COMMITTED A GRAVE AND REVERSIBLE ERROR IN
OVERRULING PETITIONER'S ARGUMENT THAT PRIVATE
RESPONDENT'S CAUSE OF ACTION HAD PRESCRIBED UNDER
ARTICLE 1571 OF THE CIVIL CODE. 12
The petitioner insists that a cursory reading of the complaint will reveal that the primary legal
basis for private respondent's cause of action is not Article 2176 of the Civil Code on quasi-
delict for the complaint does not ascribe any tortious or wrongful conduct on its part but
Articles 1561 and 1562 thereof on breach of a seller's implied warranties under the law on sales.
It contends the existence of a contractual relation between the parties (arising from the contract
of sale) bars the application of the law on quasi-delicts and that since private respondent's cause
of action arose from the breach of implied warranties, the complaint should have been filed
within six months room delivery of the soft drinks pursuant to Article 171 of the Civil Code.
In her Comment the private respondent argues that in case of breach of the seller's implied
warranties, the vendee may, under Article 1567 of the Civil Code, elect between withdrawing
from the contract or demanding a proportionate reduction of the price, with damages in either
case. She asserts that Civil Case No. D-9629 is neither an action for rescission nor for
proportionate reduction of the price, but for damages arising from a quasi-delict and that the
public respondent was correct in ruling that the existence of a contract did not preclude the
action for quasi-delict. As to the issue of prescription, the private respondent insists that since
her cause of action is based on quasi-delict, the prescriptive period therefore is four (4) years in
accordance with Article 1144 of the Civil Code and thus the filing of the complaint was well
within the said period.
We find no merit in the petition. The public respondent's conclusion that the cause of action in
Civil Case No. D-9629 is found on quasi-delict and that, therefore, pursuant to Article 1146 of
the Civil Code, it prescribes in four (4) years is supported by the allegations in the complaint,
more particularly paragraph 12 thereof, which makes reference to the reckless and negligent
manufacture of "adulterated food items intended to be sold for public consumption."
The vendee's remedies against a vendor with respect to the warranties against hidden defects of
or encumbrances upon the thing sold are not limited to those prescribed in Article 1567 of the
Civil Code which provides:
Art. 1567. In the case of Articles 1561, 1562, 1564, 1565 and 1566, the
vendee may elect between withdrawing from the contract and demanding a
proportionate reduction of the price, with damages either
case. 13
The vendee may also ask for the annulment of the contract upon proof of error or fraud, in
which case the ordinary rule on obligations shall be applicable. 14 Under the law on obligations,
responsibility arising from fraud is demandable in all obligations and any waiver of an action for
future fraud is void. Responsibility arising from negligence is also demandable in any
obligation, but such liability may be regulated by the courts, according to the
circumstances. 15 Those guilty of fraud, negligence, or delay in the performance of their
obligations and those who in any manner contravene the tenor thereof are liable for damages. 16
The vendor could likewise be liable for quasi-delict under Article 2176 of the Civil Code, and
an action based thereon may be brought by the vendee. While it may be true that the pre-existing
contract between the parties may, as a general rule, bar the applicability of the law on quasi-
delict, the liability may itself be deemed to arise fromquasi-delict, i.e., the acts which breaks the
contract may also be a quasi-delict. Thus, in Singson vs. Bank of the Philippine Islands, 17 this
Court stated:
We have repeatedly held, however, that the existence of a contract between
the parties does not bar the commission of a tort by the one against the other
and the consequent recovery of damages therefor. 18 Indeed, this view has
been, in effect, reiterated in a comparatively recent case. Thus, in Air
France vs. Carrascoso, 19 involving an airplane passenger who, despite hi
first-class ticket, had been illegally ousted from his first-class
accommodation and compelled to take a seat in the tourist compartment,
was held entitled to recover damages from the air-carrier, upon the ground
of tort on the latter's part, for, although the relation between the passenger
and a carrier is "contractual both in origin and nature . . . the act that breaks
the contract may also be a tort.
Otherwise put, liability for quasi-delict may still exist despite the presence of
contractual relations. 20
Under American law, the liabilities of a manufacturer or seller of injury-causing
products may be based on negligence, 21 breach of warranty, 22 tort, 23 or other grounds
such as fraud, deceit, or misrepresentation. 24Quasi-delict, as defined in Article 2176
of the Civil Code, (which is known in Spanish legal treaties as culpa aquiliana, culpa
extra-contractual or cuasi-delitos) 25 is homologous but not identical to tort under the
common law, 26 which includes not only negligence, but also intentional criminal acts,
such as assault and battery, false imprisonment and deceit. 27
It must be made clear that our affirmance of the decision of the public respondent should by no
means be understood as suggesting that the private respondent's claims for moral damages have
sufficient factual and legal basis.
IN VIEW OF ALL THE FOREGOING, the instant petition is hereby DENIED for lack of merit,
with costs against the petitioner.
SO ORDERED.
G.R. No. L-48006 July 8, 1942
FAUSTO BARREDO, petitioner,
vs.
SEVERINO GARCIA and TIMOTEA ALMARIO, respondents.
Celedonio P. Gloria and Antonio Barredo for petitioner.
Jose G. Advincula for respondents.
BOCOBO, J.:
This case comes up from the Court of Appeals which held the petitioner herein, Fausto Barredo,
liable in damages for the death of Faustino Garcia caused by the negligence of Pedro Fontanilla,
a taxi driver employed by said Fausto Barredo.
At about half past one in the morning of May 3, 1936, on the road between Malabon and
Navotas, Province of Rizal, there was a head-on collision between a taxi of the Malate Taxicab
driven by Pedro Fontanilla and a carretela guided by Pedro Dimapalis. The carretela was
overturned, and one of its passengers, 16-year-old boy Faustino Garcia, suffered injuries from
which he died two days later. A criminal action was filed against Fontanilla in the Court of First
Instance of Rizal, and he was convicted and sentenced to an indeterminate sentence of one year
and one day to two years of prision correccional. The court in the criminal case granted the
petition that the right to bring a separate civil action be reserved. The Court of Appeals affirmed
the sentence of the lower court in the criminal case. Severino Garcia and Timotea Almario,
parents of the deceased on March 7, 1939, brought an action in the Court of First Instance of
Manila against Fausto Barredo as the sole proprietor of the Malate Taxicab and employer of
Pedro Fontanilla. On July 8, 1939, the Court of First Instance of Manila awarded damages in
favor of the plaintiffs for P2,000 plus legal interest from the date of the complaint. This decision
was modified by the Court of Appeals by reducing the damages to P1,000 with legal interest
from the time the action was instituted. It is undisputed that Fontanilla 's negligence was the
cause of the mishap, as he was driving on the wrong side of the road, and at high speed. As to
Barredo's responsibility, the Court of Appeals found:
... It is admitted that defendant is Fontanilla's employer. There is proof that he
exercised the diligence of a good father of a family to prevent damage. (See p. 22,
appellant's brief.) In fact it is shown he was careless in employing Fontanilla who had
been caught several times for violation of the Automobile Law and speeding (Exhibit
A) violation which appeared in the records of the Bureau of Public Works available
to be public and to himself. Therefore, he must indemnify plaintiffs under the
provisions of article 1903 of the Civil Code.
The main theory of the defense is that the liability of Fausto Barredo is governed by the Revised
Penal Code; hence, his liability is only subsidiary, and as there has been no civil action against
Pedro Fontanilla, the person criminally liable, Barredo cannot be held responsible in the case.
The petitioner's brief states on page 10:
... The Court of Appeals holds that the petitioner is being sued for his failure to
exercise all the diligence of a good father of a family in the selection and supervision
of Pedro Fontanilla to prevent damages suffered by the respondents. In other words,
The Court of Appeals insists on applying in the case article 1903 of the Civil Code.
Article 1903 of the Civil Code is found in Chapter II, Title 16, Book IV of the Civil
Code. This fact makes said article to a civil liability arising from a crime as in the case
at bar simply because Chapter II of Title 16 of Book IV of the Civil Code, in the
precise words of article 1903 of the Civil Code itself, is applicable only to "those
(obligations) arising from wrongful or negligent acts or commission not punishable by
law.
The gist of the decision of the Court of Appeals is expressed thus:
... We cannot agree to the defendant's contention. The liability sought to be imposed
upon him in this action is not a civil obligation arising from a felony or a
misdemeanor (the crime of Pedro Fontanilla,), but an obligation imposed in article
1903 of the Civil Code by reason of his negligence in the selection or supervision of
his servant or employee.
The pivotal question in this case is whether the plaintiffs may bring this separate civil action
against Fausto Barredo, thus making him primarily and directly, responsible under article 1903
of the Civil Code as an employer of Pedro Fontanilla. The defendant maintains that Fontanilla's
negligence being punishable by the Penal Code, his (defendant's) liability as an employer is only
subsidiary, according to said Penal code, but Fontanilla has not been sued in a civil action and
his property has not been exhausted. To decide the main issue, we must cut through the tangle
that has, in the minds of many confused and jumbled together delitos and cuasi delitos, or
crimes under the Penal Code and fault or negligence under articles 1902-1910 of the Civil Code.
This should be done, because justice may be lost in a labyrinth, unless principles and remedies
are distinctly envisaged. Fortunately, we are aided in our inquiry by the luminous presentation
of the perplexing subject by renown jurists and we are likewise guided by the decisions of this
Court in previous cases as well as by the solemn clarity of the consideration in several sentences
of the Supreme Tribunal of Spain.
Authorities support the proposition that a quasi-delict or "culpa aquiliana " is a separate legal
institution under the Civil Code with a substantivity all its own, and individuality that is entirely
apart and independent from delict or crime. Upon this principle and on the wording and spirit
article 1903 of the Civil Code, the primary and direct responsibility of employers may be safely
anchored.
The pertinent provisions of the Civil Code and Revised Penal Code are as follows:
CIVIL CODE
ART. 1089 Obligations arise from law, from contracts and quasi-contracts, and from
acts and omissions which are unlawful or in which any kind of fault or negligence
intervenes.
xxx xxx xxx
ART. 1092. Civil obligations arising from felonies or misdemeanors shall be governed
by the provisions of the Penal Code.
ART. 1093. Those which are derived from acts or omissions in which fault or
negligence, not punishable by law, intervenes shall be subject to the provisions of
Chapter II, Title XVI of this book.
xxx xxx xxx
ART 1902. Any person who by an act or omission causes damage to another by his
fault or negligence shall be liable for the damage so done.
ART. 1903. The obligation imposed by the next preceding article is enforcible, not
only for personal acts and omissions, but also for those of persons for whom another is
responsible.
 The father and in, case of his death or incapacity, the mother, are liable for any
damages caused by the minor children who live with them.
Guardians are liable for damages done by minors or incapacitated persons subject to
their authority and living with them.
Owners or directors of an establishment or business are equally liable for any damages
caused by their employees while engaged in the branch of the service in which
employed, or on occasion of the performance of their duties.
The State is subject to the same liability when it acts through a special agent, but not if
the damage shall have been caused by the official upon whom properly devolved the
duty of doing the act performed, in which case the provisions of the next preceding
article shall be applicable.
Finally, teachers or directors of arts trades are liable for any damages caused by their
pupils or apprentices while they are under their custody.
The liability imposed by this article shall cease in case the persons mentioned therein
prove that they are exercised all the diligence of a good father of a family to prevent
the damage.
ART. 1904. Any person who pays for damage caused by his employees may recover
from the latter what he may have paid.
REVISED PENAL CODE
ART. 100. Civil liability of a person guilty of felony. Every person criminally liable
for a felony is also civilly liable.
ART. 101. Rules regarding civil liability in certain cases. The exemption from
criminal liability established in subdivisions 1, 2, 3, 5, and 6 of article 12 and in
subdivision 4 of article 11 of this Code does not include exemption from civil liability,
which shall be enforced to the following rules:
First. In cases of subdivision, 1, 2 and 3 of article 12 the civil liability for acts
committed by any imbecile or insane person, and by a person under nine years of age,
or by one over nine but under fifteen years of age, who has acted without discernment
shall devolve upon those having such person under their legal authority or control,
unless it appears that there was no fault or negligence on their part.
Should there be no person having such insane, imbecile or minor under his authority,
legal guardianship, or control, or if such person be insolvent, said insane, imbecile, or
minor shall respond with their own property, excepting property exempt from
execution, in accordance with the civil law.
Second. In cases falling within subdivision 4 of article 11, the person for whose
benefit the harm has been prevented shall be civilly liable in proportion to the benefit
which they may have received.
The courts shall determine, in their sound discretion, the proportionate amount for which each
one shall be liable.
When the respective shares can not be equitably determined, even approximately, or when the
liability also attaches to the Government, or to the majority of the inhabitants of the town, and,
in all events, whenever the damage has been caused with the consent of the authorities or their
agents, indemnification shall be made in the manner prescribed by special laws or regulations.
Third. In cases falling within subdivisions 5 and 6 of article 12, the persons using violence or
causing the fear shall be primarily liable and secondarily, or, if there be no such persons, those
doing the act shall be liable, saving always to the latter that part of their property exempt from
execution.
ART. 102. Subsidiary civil liability of innkeepers, tavern keepers and proprietors of
establishment. In default of persons criminally liable, innkeepers, tavern keepers,
and any other persons or corporation shall be civilly liable for crimes committed in
their establishments, in all cases where a violation of municipal ordinances or some
general or special police regulation shall have been committed by them or their
employees.
Innkeepers are also subsidiarily liable for the restitution of goods taken by robbery or
theft within their houses lodging therein, or the person, or for the payment of the value
thereof, provided that such guests shall have notified in advance the innkeeper
himself, or the person representing him, of the deposit of such goods within the inn;
and shall furthermore have followed the directions which such innkeeper or his
representative may have given them with respect to the care of and vigilance over
such goods. No liability shall attach in case of robbery with violence against or
intimidation against or intimidation of persons unless committed by the innkeeper's
employees.
ART. 103. Subsidiary civil liability of other persons. The subsidiary liability
established in the next preceding article shall also apply to employers, teachers,
persons, and corporations engaged in any kind of industry for felonies committed by
their servants, pupils, workmen, apprentices, or employees in the discharge of their
duties.
xxx xxx xxx
ART. 365. Imprudence and negligence. Any person who, by reckless imprudence,
shall commit any act which, had it been intentional, would constitute a grave felony,
shall suffer the penalty of arresto mayor in its maximum period to prision correccional
in its minimum period; if it would have constituted a less grave felony, the penalty of
arresto mayor in its minimum and medium periods shall be imposed.
Any person who, by simple imprudence or negligence, shall commit an act which
would otherwise constitute a grave felony, shall suffer the penalty of arresto mayor in
its medium and maximum periods; if it would have constituted a less serious felony,
the penalty of arresto mayor in its minimum period shall be imposed."
It will thus be seen that while the terms of articles 1902 of the Civil Code seem to be broad
enough to cover the driver's negligence in the instant case, nevertheless article 1093
limits cuasi-delitos to acts or omissions "not punishable by law." But inasmuch as article 365 of
the Revised Penal Code punishes not only reckless but even simple imprudence or negligence,
the fault or negligence under article 1902 of the Civil Code has apparently been crowded out. It
is this overlapping that makes the "confusion worse confounded." However, a closer study
shows that such a concurrence of scope in regard to negligent acts does not destroy the
distinction between the civil liability arising from a crime and the responsibility for cuasi-delitos
or culpa extra-contractual. The same negligent act causing damages may produce civil liability
arising from a crime under article 100 of the Revised Penal Code, or create an action for cuasi-
delito or culpa extra-contractual under articles 1902-1910 of the Civil Code.
The individuality of cuasi-delito or culpa extra-contractual looms clear and unmistakable. This
legal institution is of ancient lineage, one of its early ancestors being the Lex Aquilia in the
Roman Law. In fact, in Spanish legal terminology, this responsibility is often referred to as
culpa aquiliana. The Partidas also contributed to the genealogy of the present fault or negligence
under the Civil Code; for instance, Law 6, Title 15, of Partida 7, says: "Tenudo es de fazer
emienda, porque, como quier que el non fizo a sabiendas en dao al otro, pero acaescio por su
culpa."
The distinctive nature of cuasi-delitos survives in the Civil Code. According to article 1089, one
of the five sources of obligations is this legal institution of cuasi-delito or culpa extra-
contractual: "los actos . . . en que intervenga cualquier genero de culpa o negligencia." Then
article 1093 provides that this kind of obligation shall be governed by Chapter II of Title XVI of
Book IV, meaning articles 1902-0910. This portion of the Civil Code is exclusively devoted to
the legal institution of culpa aquiliana.
Some of the differences between crimes under the Penal Code and the culpa aquiliana or cuasi-
delito under the Civil Code are:
1. That crimes affect the public interest, while cuasi-delitos are only of private concern.
2. That, consequently, the Penal Code punishes or corrects the criminal act, while the Civil
Code, by means of indemnification, merely repairs the damage.
3. That delicts are not as broad as quasi-delicts, because the former are punished only if there is
a penal law clearly covering them, while the latter, cuasi-delitos, include all acts in which "any
king of fault or negligence intervenes." However, it should be noted that not all violations of the
penal law produce civil responsibility, such as begging in contravention of ordinances, violation
of the game laws, infraction of the rules of traffic when nobody is hurt. (See Colin and Capitant,
"Curso Elemental de Derecho Civil," Vol. 3, p. 728.)
Let us now ascertain what some jurists say on the separate existence of quasi-delicts and the
employer's primary and direct liability under article 1903 of the Civil Code.
Dorado Montero in his essay on "Responsibilidad" in the "Enciclopedia Juridica Espaola"
(Vol. XXVII, p. 414) says:
El concepto juridico de la responsabilidad civil abarca diversos aspectos y comprende
a diferentes personas. Asi, existe una responsabilidad civil propiamente dicha, que en
ningun casl lleva aparejada responsabilidad criminal alguna, y otra que es
consecuencia indeclinable de la penal que nace de todo delito o falta."
The juridical concept of civil responsibility has various aspects and comprises
different persons. Thus, there is a civil responsibility, properly speaking, which in no
case carries with it any criminal responsibility, and another which is a necessary
consequence of the penal liability as a result of every felony or misdemeanor."
Maura, an outstanding authority, was consulted on the following case: There had been a
collision between two trains belonging respectively to the Ferrocarril Cantabrico and the
Ferrocarril del Norte. An employee of the latter had been prosecuted in a criminal case, in which
the company had been made a party as subsidiarily responsible in civil damages. The employee
had been acquitted in the criminal case, and the employer, the Ferrocarril del Norte, had also
been exonerated. The question asked was whether the Ferrocarril Cantabrico could still bring a
civil action for damages against the Ferrocarril del Norte. Maura's opinion was in the
affirmative, stating in part (Maura, Dictamenes, Vol. 6, pp. 511-513):
Quedando las cosas asi, a proposito de la realidad pura y neta de los hechos, todavia
menos parece sostenible que exista cosa juzgada acerca de la obligacion civil de
indemnizar los quebrantos y menoscabos inferidos por el choque de los trenes. El
titulo en que se funda la accion para demandar el resarcimiento, no puede confundirse
con las responsabilidades civiles nacidas de delito, siquiera exista en este, sea el cual
sea, una culpa rodeada de notas agravatorias que motivan sanciones penales, mas o
menos severas. La lesion causada por delito o falta en los derechos civiles, requiere
restituciones, reparaciones o indemnizaciones, que cual la pena misma ataen al orden
publico; por tal motivo vienen encomendadas, de ordinario, al Ministerio Fiscal; y
claro es que si por esta via se enmiendan los quebrantos y menoscabos, el agraviado
excusa procurar el ya conseguido desagravio; pero esta eventual coincidencia de los
efectos, no borra la diversidad originaria de las acciones civiles para pedir
indemnizacion.
Estas, para el caso actual (prescindiendo de culpas contractuales, que no vendrian a
cuento y que tiene otro regimen), dimanan, segun el articulo 1902 del Codigo Civil, de
toda accion u omision, causante de daos o perjuicios, en que intervenga culpa o
negligencia. Es trivial que acciones semejantes son ejercitadas ante los Tribunales de
lo civil cotidianamente, sin que la Justicia punitiva tenga que mezclarse en los asuntos.
Los articulos 18 al 21 y 121 al 128 del Codigo Penal, atentos al espiritu y a los fines
sociales y politicos del mismo, desenvuelven y ordenan la materia de
responsabilidades civiles nacidas de delito, en terminos separados del regimen por ley
comun de la culpa que se denomina aquiliana, por alusion a precedentes legislativos
del Corpus Juris. Seria intempestivo un paralelo entre aquellas ordenaciones, y la de
la obligacion de indemnizar a titulo de culpa civil; pero viene al caso y es necesaria
una de las diferenciaciones que en el tal paralelo se notarian.
Los articulos 20 y 21 del Codigo Penal, despues de distribuir a su modo las
responsabilidades civiles, entre los que sean por diversos conceptos culpables del
delito o falta, las hacen extensivas a las empresas y los establecimientos al servicio de
los cuales estan los delincuentes; pero con caracter subsidiario, o sea, segun el texto
literal, en defecto de los que sean responsables criminalmente. No coincide en ello el
Codigo Civil, cuyo articulo 1903, dice; La obligacion que impone el articulo
anterior es exigible, no solo por los actos y omisiones propios, sino por los de aquellas
personas de quienes se debe responder; personas en la enumeracion de las cuales
figuran los dependientes y empleados de los establecimientos o empresas, sea por
actos del servicio, sea con ocasion de sus funciones. Por esto acontece, y se observa en
la jurisprudencia, que las empresas, despues de intervenir en las causas criminales con
el caracter subsidiario de su responsabilidad civil por razon del delito, son
demandadas y condenadas directa y aisladamente, cuando se trata de la obligacion,
ante los tribunales civiles.
Siendo como se ve, diverso el titulo de esta obligacion, y formando verdadero
postulado de nuestro regimen judicial la separacion entre justicia punitiva y tribunales
de lo civil, de suerte que tienen unos y otros normas de fondo en distintos cuerpos
legales, y diferentes modos de proceder, habiendose, por aadidura, abstenido de
asistir al juicio criminal la Compaia del Ferrocarril Cantabrico, que se reservo
ejercitar sus acciones, parece innegable que la de indemnizacion por los daos y
perjuicios que le irrogo el choque, no estuvo sub judice ante el Tribunal del Jurado, ni
fue sentenciada, sino que permanecio intacta, al pronunciarse el fallo de 21 de marzo.
Aun cuando el veredicto no hubiese sido de inculpabilidad, mostrose mas arriba, que
tal accion quedaba legitimamente reservada para despues del proceso; pero al
declararse que no existio delito, ni responsabilidad dimanada de delito,
materia unica sobre que tenian jurisdiccion aquellos juzgadores, se redobla el motivo
para la obligacion civil ex lege, y se patentiza mas y mas que la accion para pedir su
cumplimiento permanece incolume, extraa a la cosa juzgada.
As things are, apropos of the reality pure and simple of the facts, it seems less tenable
that there should be res judicata with regard to the civil obligation for damages on
account of the losses caused by the collision of the trains. The title upon which the
action for reparation is based cannot be confused with the civil responsibilities born of
a crime, because there exists in the latter, whatever each nature, a culpa surrounded
with aggravating aspects which give rise to penal measures that are more or less
severe. The injury caused by a felony or misdemeanor upon civil rights requires
restitutions, reparations, or indemnifications which, like the penalty itself, affect
public order; for this reason, they are ordinarily entrusted to the office of the
prosecuting attorney; and it is clear that if by this means the losses and damages are
repaired, the injured party no longer desires to seek another relief; but this coincidence
of effects does not eliminate the peculiar nature of civil actions to ask for indemnity.
Such civil actions in the present case (without referring to contractual faults which are
not pertinent and belong to another scope) are derived, according to article 1902 of the
Civil Code, from every act or omission causing losses and damages in which culpa or
negligence intervenes. It is unimportant that such actions are every day filed before
the civil courts without the criminal courts interfering therewith. Articles 18 to 21 and
121 to 128 of the Penal Code, bearing in mind the spirit and the social and political
purposes of that Code, develop and regulate the matter of civil responsibilities arising
from a crime, separately from the regime under common law, of culpa which is
known as aquiliana, in accordance with legislative precedent of the Corpus Juris. It
would be unwarranted to make a detailed comparison between the former provisions
and that regarding the obligation to indemnify on account of civil culpa; but it is
pertinent and necessary to point out to one of such differences.
Articles 20 and 21 of the Penal Code, after distriburing in their own way the civil
responsibilities among those who, for different reasons, are guilty of felony or
misdemeanor, make such civil responsibilities applicable to enterprises and
establishments for which the guilty parties render service, but with subsidiary
character, that is to say, according to the wording of the Penal Code, in default of
those who are criminally responsible. In this regard, the Civil Code does not coincide
because article 1903 says: "The obligation imposed by the next preceding article is
demandable, not only for personal acts and omissions, but also for those of persons for
whom another is responsible." Among the persons enumerated are the subordinates
and employees of establishments or enterprises, either for acts during their service or
on the occasion of their functions. It is for this reason that it happens, and it is so
observed in judicial decisions, that the companies or enterprises, after taking part in
the criminal cases because of their subsidiary civil responsibility by reason of the
crime, are sued and sentenced directly and separately with regard to the obligation,
before the civil courts.
Seeing that the title of this obligation is different, and the separation between punitive
justice and the civil courts being a true postulate of our judicial system, so that they
have different fundamental norms in different codes, as well as different modes of
procedure, and inasmuch as the Compaa del Ferrocarril Cantabrico has abstained
from taking part in the criminal case and has reserved the right to exercise its actions,
it seems undeniable that the action for indemnification for the losses and damages
caused to it by the collision was not sub judice before the Tribunal del Jurado, nor
was it the subject of a sentence, but it remained intact when the decision of March 21
was rendered. Even if the verdict had not been that of acquittal, it has already been
shown that such action had been legitimately reserved till after the criminal
prosecution; but because of the declaration of the non-existence of the felony and the
non-existence of the responsibility arising from the crime, which was the sole subject
matter upon which the Tribunal del Jurado had jurisdiction, there is greater reason for
the civil obligation ex lege, and it becomes clearer that the action for its enforcement
remain intact and is not res judicata.
Laurent, a jurist who has written a monumental work on the French Civil Code, on which the
Spanish Civil Code is largely based and whose provisions on cuasi-delito or culpa extra-
contractual are similar to those of the Spanish Civil Code, says, referring to article 1384 of the
French Civil Code which corresponds to article 1903, Spanish Civil Code:
The action can be brought directly against the person responsible (for another),
without including the author of the act. The action against the principal is accessory in
the sense that it implies the existence of a prejudicial act committed by the employee,
but it is not subsidiary in the sense that it can not be instituted till after the judgment
against the author of the act or at least, that it is subsidiary to the principal action; the
action for responsibility (of the employer) is in itself a principal action. (Laurent,
Principles of French Civil Law, Spanish translation, Vol. 20, pp. 734-735.)
Amandi, in his "Cuestionario del Codigo Civil Reformado" (Vol. 4, pp. 429, 430), declares that
the responsibility of the employer is principal and not subsidiary. He writes:
Cuestion 1. La responsabilidad declarada en el articulo 1903 por las acciones u
omisiones de aquellas personas por las que se debe responder, es subsidiaria? es
principal? Para contestar a esta pregunta es necesario saber, en primer lugar, en que se
funda el precepto legal. Es que realmente se impone una responsabilidad por una falta
ajena? Asi parece a primera vista; pero semejante afirmacion seria contraria a la
justicia y a la maxima universal, segun la que las faltas son personales, y cada uno
responde de aquellas que le son imputables. La responsabilidad de que tratamos se
impone con ocasion de un delito o culpa, pero no por causa de ellos, sino por causa
del causi delito, esto es, de la imprudencia o de la negligencia del padre, del tutor, del
dueo o director del establecimiento, del maestro, etc. Cuando cualquiera de las
personas que enumera el articulo citado (menores de edad, incapacitados,
dependientes, aprendices) causan un dao, la ley presume que el padre, el tutor, el
maestro, etc., han cometido una falta de negligencia para prevenir o evitar el dao.
Esta falta es la que la ley castiga. No hay, pues, responsabilidad por un hecho ajeno,
sino en la apariencia; en realidad la responsabilidad se exige por un hecho propio. La
 idea de que esa responsabilidad sea subsidiaria es, por lo tanto, completamente
inadmisible.
Question No. 1. Is the responsibility declared in article 1903 for the acts or omissions
of those persons for who one is responsible, subsidiary or principal? In order to
answer this question it is necessary to know, in the first place, on what the legal
provision is based. Is it true that there is a responsibility for the fault of another
person? It seems so at first sight; but such assertion would be contrary to justice and to
the universal maxim that all faults are personal, and that everyone is liable for those
faults that can be imputed to him. The responsibility in question is imposed on the
occasion of a crime or fault, but not because of the same, but because of the cuasi-
delito, that is to say, the imprudence or negligence of the father, guardian, proprietor
or manager of the establishment, of the teacher, etc. Whenever anyone of the persons
enumerated in the article referred to (minors, incapacitated persons, employees,
apprentices) causes any damage, the law presumes that the father, guardian, teacher,
etc. have committed an act of negligence in not preventing or avoiding the damage. It
is this fault that is condemned by the law. It is, therefore, only apparent that there is a
responsibility for the act of another; in reality the responsibility exacted is for one's
own act. The idea that such responsibility is subsidiary is, therefore, completely
inadmissible.
Oyuelos, in his "Digesto: Principios, Doctrina y Jurisprudencia, Referentes al Codigo Civil
Espaol," says in Vol. VII, p. 743:
Es decir, no responde de hechos ajenos, porque se responde solo de su propia culpa,
doctrina del articulo 1902; mas por excepcion, se responde de la ajena respecto de
aquellas personas con las que media algun nexo o vinculo, que motiva o razona la
responsabilidad. Esta responsabilidad, es directa o es subsidiaria? En el orden penal, el
Codigo de esta clase distingue entre menores e incapacitados y los demas, declarando
directa la primera (articulo 19) y subsidiaria la segunda (articulos 20 y 21); pero en el
orden civil, en el caso del articulo 1903, ha de entenderse directa, por el tenor del
articulo que impone la responsabilidad precisamente "por los actos de aquellas
personas de quienes se deba responder."
That is to say, one is not responsible for the acts of others, because one is liable only
for his own faults, this being the doctrine of article 1902; but, by exception, one is
liable for the acts of those persons with whom there is a bond or tie which gives rise to
the responsibility. Is this responsibility direct or subsidiary? In the order of the penal
law, the Penal Code distinguishes between minors and incapacitated persons on the
one hand, and other persons on the other, declaring that the responsibility for the
former is direct (article 19), and for the latter, subsidiary (articles 20 and 21); but in
the scheme of the civil law, in the case of article 1903, the responsibility should be
understood as direct, according to the tenor of that articles, for precisely it imposes
responsibility "for the acts of those persons for whom one should be responsible."
Coming now to the sentences of the Supreme Tribunal of Spain, that court has upheld the
principles above set forth: that a quasi-delict or culpa extra-contractual is a separate and distinct
legal institution, independent from the civil responsibility arising from criminal liability, and
that an employer is, under article 1903 of the Civil Code, primarily and directly responsible for
the negligent acts of his employee.
One of the most important of those Spanish decisions is that of October 21, 1910. In that case,
Ramon Lafuente died as the result of having been run over by a street car owned by the
"compaia Electric Madrilea de Traccion." The conductor was prosecuted in a criminal case
but he was acquitted. Thereupon, the widow filed a civil action against the street car company,
paying for damages in the amount of 15,000 pesetas. The lower court awarded damages; so the
company appealed to the Supreme Tribunal, alleging violation of articles 1902 and 1903 of the
Civil Code because by final judgment the non-existence of fault or negligence had been
declared. The Supreme Court of Spain dismissed the appeal, saying:
Considerando que el primer motivo del recurso se funda en el equivocado supuesto de
que el Tribunal a quo, al condonar a la compaia Electrica Madrilea al pago del dao
causado con la muerte de Ramon La fuente Izquierdo, desconoce el valor y efectos
juridicos de la sentencia absolutoria deictada en la causa criminal que se siguio por el
mismo hecho, cuando es lo cierto que de este han conocido las dos jurisdicciones bajo
diferentes as pectos, y como la de lo criminal declrao dentro de los limites de su
competencia que el hecho de que se trata no era constitutivo de delito por no haber
mediado descuido o negligencia graves, lo que no excluye, siendo este el unico
fundamento del fallo absolutorio, el concurso de la culpa o negligencia no califacadas,
fuente de obligaciones civiles segun el articulo 1902 del Codigo, y que alcanzan,
segun el 1903, netre otras perosnas, a los Directores de establecimientos o empresas
por los daos causados por sus dependientes en determinadas condiciones, es
manifesto que la de lo civil, al conocer del mismo hehco baho este ultimo aspecto y al
condenar a la compaia recurrente a la indemnizacion del dao causado por uno de
sus empleados, lejos de infringer los mencionados textos, en relacion con el articulo
116 de la Ley de Enjuciamiento Criminal, se ha atenido estrictamente a ellos, sin
invadir atribuciones ajenas a su jurisdiccion propia, ni contrariar en lo mas minimo el
fallo recaido en la causa.
Considering that the first ground of the appeal is based on the mistaken supposition
that the trial court, in sentencing the Compaia Madrilea to the payment of the
damage caused by the death of Ramon Lafuente Izquierdo, disregards the value and
juridical effects of the sentence of acquittal rendered in the criminal case instituted on
account of the same act, when it is a fact that the two jurisdictions had taken
cognizance of the same act in its different aspects, and as the criminal jurisdiction
declared within the limits of its authority that the act in question did not constitute a
felony because there was no grave carelessness or negligence, and this being the only
basis of acquittal, it does no exclude the co-existence of fault or negligence which is
not qualified, and is a source of civil obligations according to article 1902 of the Civil
Code, affecting, in accordance with article 1903, among other persons, the managers
of establishments or enterprises by reason of the damages caused by employees under
certain conditions, it is manifest that the civil jurisdiccion in taking cognizance of the
same act in this latter aspect and in ordering the company, appellant herein, to pay an
indemnity for the damage caused by one of its employees, far from violating said legal
provisions, in relation with article 116 of the Law of Criminal Procedure, strictly
followed the same, without invading attributes which are beyond its own jurisdiction,
and without in any way contradicting the decision in that cause. (Emphasis supplied.)
It will be noted, as to the case just cited:
First. That the conductor was not sued in a civil case, either separately or with the street car
company. This is precisely what happens in the present case: the driver, Fontanilla, has not been
sued in a civil action, either alone or with his employer.
Second. That the conductor had been acquitted of grave criminal negligence, but the Supreme
Tribunal of Spain said that this did not exclude the co-existence of fault or negligence, which is
not qualified, on the part of the conductor, under article 1902 of the Civil Code. In the present
case, the taxi driver was found guilty of criminal negligence, so that if he had even sued for his
civil responsibility arising from the crime, he would have been held primarily liable for civil
damages, and Barredo would have been held subsidiarily liable for the same. But the plaintiffs
are directly suing Barredo, on his primary responsibility because of his own presumed
negligence which he did not overcome under article 1903. Thus, there were two liabilities
of Barredo: first, the subsidiary one because of the civil liability of the taxi driver arising from
the latter's criminal negligence; and, second, Barredo's primary liability as an employer under
article 1903. The plaintiffs were free to choose which course to take, and they preferred the
second remedy. In so doing, they were acting within their rights. It might be observed in
passing, that the plaintiff choose the more expeditious and effective method of relief, because
Fontanilla was either in prison, or had just been released, and besides, he was probably without
property which might be seized in enforcing any judgment against him for damages.
Third. That inasmuch as in the above sentence of October 21, 1910, the employer was held
liable civilly, notwithstanding the acquittal of the employee (the conductor) in a previous
criminal case, with greater reason should Barredo, the employer in the case at bar, be held liable
for damages in a civil suit filed against him because his taxi driver had been convicted. The
degree of negligence of the conductor in the Spanish case cited was less than that of the taxi
driver, Fontanilla, because the former was acquitted in the previous criminal case while the
latter was found guilty of criminal negligence and was sentenced to an indeterminate sentence of
one year and one day to two years of prision correccional.
(See also Sentence of February 19, 1902, which is similar to the one above quoted.)
In the Sentence of the Supreme Court of Spain, dated February 14, 1919, an action was brought
against a railroad company for damages because the station agent, employed by the company,
had unjustly 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 sentencia discutida reconoce, en virtud de los hechos que
consigna con relacion a las pruebas del pleito: 1., que las expediciones facturadas por
la compaia ferroviaria a la consignacion del actor de las vasijas vacias que en su
demanda relacionan tenian como fin el que este las devolviera a sus remitentes con
vinos y alcoholes; 2., que llegadas a su destino tales mercanias no se quisieron
entregar a dicho consignatario por el jefe de la estacion sin motivo justificado y con
intencion dolosa, y 3., que la falta de entrega de estas expediciones al tiempo de
reclamarlas el demandante le originaron daos y perjuicios en cantidad de bastante
importancia como expendedor al por mayor que era de vinos y alcoholes por las
ganancias que dejo de obtener al verse privado de servir los pedidos que se le habian
hecho por los remitentes en los envases:
Considerando que sobre esta base hay necesidad de estimar los cuatro motivos que
integran este recurso, porque la demanda inicial del pleito a que se contrae no contiene
accion que nazca del incumplimiento del contrato de transporte, toda vez que no se
funda en el retraso de la llegada de las mercancias ni de ningun otro vinculo
contractual entre las partes contendientes, careciendo, por tanto, de aplicacion el
articulo 371 del Codigo de Comercio, en que principalmente descansa el fallo
recurrido, sino que se limita a pedir la reparaction de los daos y perjuicios producidos
en el patrimonio del actor por la injustificada y dolosa negativa del porteador a la
entrega de las mercancias a su nombre consignadas, segun lo reconoce la sentencia, y
cuya responsabilidad esta claramente sancionada en el articulo 1902 del Codigo Civil,
que obliga por el siguiente a la Compaia demandada como ligada con el causante de
aquellos por relaciones de caracter economico y de jurarquia administrativa.
Considering that the sentence, in question recognizes, in virtue of the facts which it
declares, in relation to the evidence in the case: (1) that the invoice issued by the
railroad company in favor of the plaintiff contemplated that the empty receptacles
referred to in the complaint should be returned to the consignors with wines and
liquors; (2) that when the said merchandise reached their destination, their delivery to
the consignee was refused by the station agent without justification and
with fraudulent intent, and (3) that the lack of delivery of these goods when they were
demanded by the plaintiff caused him losses and damages of considerable importance,
as he was a wholesale vendor of wines and liquors and he failed to realize the profits
when he was unable to fill the orders sent to him by the consignors of the receptacles:
Considering that upon this basis there is need of upholding the four assignments of
error, as the original complaint did not contain any cause of action arising from non-
fulfillment of a contract of transportation, because the action was not based on the
delay of the goods nor on any contractual relation between the parties litigant and,
therefore, article 371 of the Code of Commerce, on which the decision appealed from
is based, is not applicable; but it limits to asking for reparation for losses and damages
produced on the patrimony of the plaintiff on account of the unjustified and fraudulent
refusal of the carrier to deliver the goods consigned to the plaintiff as stated by the
sentence, and the carrier's responsibility is clearly laid down in article 1902 of the
Civil Code which binds, in virtue of the next article, the defendant company, because
the latter is connected with the person who caused the damage by relations of
economic character and by administrative hierarchy. (Emphasis supplied.)
The above case is pertinent because it shows that the same act may come under both the Penal
Code and the Civil Code. In that case, the action of the agent was unjustified and fraudulent and
therefore could have been the subject of a criminal action. And yet, it was held to be also a
proper subject of a civil action under article 1902 of the Civil Code. It is also to be noted that it
was the employer and not the employee who was being sued.
Let us now examine the cases previously decided by this Court.
In the leading case of Rakes vs. Atlantic Gulf and Pacific Co. (7 Phil., 359, 362-365 [year
1907]), the trial court awarded damages to the plaintiff, a laborer of the defendant, because the
latter had negligently failed to repair a tramway in consequence of which the rails slid off while
iron was being transported, and caught the plaintiff whose leg was broken. This Court held:
It is contended by the defendant, as its first defense to the action that the necessary
conclusion from these collated laws is that the remedy for injuries through negligence
lies only in a criminal action in which the official criminally responsible must be made
primarily liable and his employer held only subsidiarily to him. According to this
theory the plaintiff should have procured the arrest of the representative of the
company accountable for not repairing the track, and on his prosecution a suitable fine
should have been imposed, payable primarily by him and secondarily by his employer.
This reasoning misconceived the plan of the Spanish codes upon this subject. Article
1093 of the Civil Code makes obligations arising from faults or negligence not
punished by the law, subject to the provisions of Chapter II of Title XVI. Section 1902
of that chapter reads:
"A person who by an act or omission causes damage to another when there
is fault or negligence shall be obliged to repair the damage so done.
"SEC. 1903. The obligation imposed by the preceeding article is
demandable, not only for personal acts and omissions, but also for those of
the persons for whom they should be responsible.
"The father, and on his death or incapacity, the mother, is liable for the
damages caused by the minors who live with them.
xxx xxx xxx
"Owners or directors of an establishment or enterprise are equally liable for
the damages caused by their employees in the service of the branches in
which the latter may be employed or in the performance of their duties.
xxx xxx xxx
"The liability referred to in this article shall cease when the persons
mentioned therein prove that they employed all the diligence of a good
father of a family to avoid the damage."
As an answer to the argument urged in this particular action it may be sufficient to
point out that nowhere in our general statutes is the employer penalized for failure to
provide or maintain safe appliances for his workmen. His obligation therefore is one
'not punished by the laws' and falls under civil rather than criminal jurisprudence. But
the answer may be a broader one. We should be reluctant, under any conditions, to
adopt a forced construction of these scientific codes, such as is proposed by the
defendant, that would rob some of these articles of effect, would shut out litigants
against their will from the civil courts, would make the assertion of their rights
dependent upon the selection for prosecution of the proper criminal offender, and
render recovery doubtful by reason of the strict rules of proof prevailing in criminal
actions. Even if these articles had always stood alone, such a construction would be
unnecessary, but clear light is thrown upon their meaning by the provisions of the Law
of Criminal Procedure of Spain (Ley de Enjuiciamiento Criminal), which, though
never in actual force in these Islands, was formerly given a suppletory or explanatory
effect. Under article 111 of this law, both classes of action, civil and criminal, might
be prosecuted jointly or separately, but while the penal action was pending the civil
was suspended. According to article 112, the penal action once started, the civil
remedy should be sought therewith, unless it had been waived by the party injured or
been expressly reserved by him for civil proceedings for the future. If the civil action
alone was prosecuted, arising out of a crime that could be enforced only on private
complaint, the penal action thereunder should be extinguished. These provisions are in
harmony with those of articles 23 and 133 of our Penal Code on the same subject.
An examination of this topic might be carried much further, but the citation of these
articles suffices to show that the civil liability was not intended to be merged in the
criminal nor even to be suspended thereby, except as expressly provided in the law.
Where an individual is civilly liable for a negligent act or omission, it is not required
that the injured party should seek out a third person criminally liable whose
prosecution must be a condition precedent to the enforcement of the civil right.
Under article 20 of the Penal Code the responsibility of an employer may be regarded
as subsidiary in respect of criminal actions against his employees only while they are
in process of prosecution, or in so far as they determine the existence of the criminal
act from which liability arises, and his obligation under the civil law and its
enforcement in the civil courts is not barred thereby unless by the election of the
injured person. Inasmuch as no criminal proceeding had been instituted, growing our
of the accident in question, the provisions of the Penal Code can not affect this action.
This construction renders it unnecessary to finally determine here whether this
subsidiary civil liability in penal actions has survived the laws that fully regulated it or
has been abrogated by the American civil and criminal procedure now in force in the
Philippines.
The difficulty in construing the articles of the code above cited in this case appears
from the briefs before us to have arisen from the interpretation of the words of article
1093, "fault or negligence not punished by law," as applied to the comprehensive
definition of offenses in articles 568 and 590 of the Penal Code. It has been shown that
the liability of an employer arising out of his relation to his employee who is the
offender is not to be regarded as derived from negligence punished by the law, within
the meaning of articles 1902 and 1093. More than this, however, it cannot be said to
fall within the class of acts unpunished by the law, the consequence of which are
regulated by articles 1902 and 1903 of the Civil Code. The acts to which these articles
are applicable are understood to be those not growing out of pre-existing duties of the
parties to one another. But where relations already formed give rise to duties, whether
springing from contract or quasi contract, then breaches of those duties are subject to
articles 1101, 1103, and 1104 of the same code. A typical application of this
distinction may be found in the consequences of a railway accident due to defective
machinery supplied by the employer. His liability to his employee would arise out of
the contract of employment, that to the passengers out of the contract for passage,
while that to the injured bystander would originate in the negligent act itself.
In Manzanares vs. Moreta, 38 Phil., 821 (year 1918), the mother of the 8 of 9-year-old child
Salvador Bona brought a civil action against Moreta to recover damages resulting from the
death of the child, who had been run over by an automobile driven and managed by the
defendant. The trial court rendered judgment requiring the defendant to pay the plaintiff the sum
of P1,000 as indemnity: This Court in affirming the judgment, said in part:
If it were true that the defendant, in coming from the southern part of Solana Street,
had to stop his auto before crossing Real Street, because he had met vehicles which
were going along the latter street or were coming from the opposite direction along
Solana Street, it is to be believed that, when he again started to run his auto across said
Real Street and to continue its way along Solana Street northward, he should have
adjusted the speed of the auto which he was operating until he had fully crossed Real
Street and had completely reached a clear way on Solana Street. But, as the child was
run over by the auto precisely at the entrance of Solana Street, this accident could not
have occurred if the auto had been running at a slow speed, aside from the fact that the
defendant, at the moment of crossing Real Street and entering Solana Street, in a
 northward direction, could have seen the child in the act of crossing the latter street
from the sidewalk on the right to that on the left, and if the accident had occurred in
such a way that after the automobile had run over the body of the child, and the child's
body had already been stretched out on the ground, the automobile still moved along a
distance of about 2 meters, this circumstance shows the fact that the automobile
entered Solana Street from Real Street, at a high speed without the defendant having
blown the horn. If these precautions had been taken by the defendant, the deplorable
accident which caused the death of the child would not have occurred.
It will be noticed that the defendant in the above case could have been prosecuted in a criminal
case because his negligence causing the death of the child was punishable by the Penal Code.
Here is therefore a clear instance of the same act of negligence being a proper subject-matter
either of a criminal action with its consequent civil liability arising from a crime or of an entirely
separate and independent civil action for fault or negligence under article 1902 of the Civil
Code. Thus, in this jurisdiction, the separate individually of a cuasi-delito or culpa
aquiliana under the Civil Code has been fully and clearly recognized, even with regard to a
negligent act for which the wrongdoer could have been prosecuted and convicted in a criminal
case and for which, after such a conviction, he could have been sued for this civil liability
arising from his crime.
Years later (in 1930) this Court had another occasion to apply the same doctrine. In Bernal and
Enverso vs. House and Tacloban Electric & Ice Plant, Ltd., 54 Phil., 327, the parents of the
five-year-old child, Purificacion Bernal, brought a civil action to recover damages for the child's
death as a result of burns caused by the fault and negligence of the defendants. On the evening
of April 10, 1925, the Good Friday procession was held in Tacloban, Leyte. Fortunata Enverso
with her daughter Purificacion Bernal had come from another municipality to attend the same.
After the procession the mother and the daughter with two others were passing along Gran
Capitan Street in front of the offices of the Tacloban Electric & Ice Plant, Ltd., owned by
defendants J. V. House, when an automobile appeared from the opposite direction. The little
girl, who was slightly ahead of the rest, was so frightened by the automobile that she turned to
run, but unfortunately she fell into the street gutter where hot water from the electric plant was
flowing. The child died that same night from the burns. The trial courts dismissed the action
because of the contributory negligence of the plaintiffs. But this Court held, on appeal, that there
was no contributory negligence, and allowed the parents P1,000 in damages from J. V. House
who at the time of the tragic occurrence was the holder of the franchise for the electric plant.
This Court said in part:
Although the trial judge made the findings of fact hereinbefore outlined, he
nevertheless was led to order the dismissal of the action because of the contributory
negligence of the plaintiffs. It is from this point that a majority of the court depart
from the stand taken by the trial judge. The mother and her child had a perfect right to
be on the principal street of Tacloban, Leyte, on the evening when the religious
procession was held. There was nothing abnormal in allowing the child to run along a
few paces in advance of the mother. No one could foresee the coincidence of an
automobile appearing and of a frightened child running and falling into a ditch filled
with hot water. The doctrine announced in the much debated case of Rakes vs.
Atlantic Gulf and Pacific Co. ([1907]), 7 Phil., 359), still rule. Article 1902 of the
Civil Code must again be enforced. The contributory negligence of the child and her
mother, if any, does not operate as a bar to recovery, but in its strictest sense could
only result in reduction of the damages.
It is most significant that in the case just cited, this Court specifically applied article 1902 of the
Civil Code. It is thus that although J. V. House could have been criminally prosecuted for
reckless or simple negligence and not only punished but also made civilly liable because of his
criminal negligence, nevertheless this Court awarded damages in an independent civil action for
fault or negligence under article 1902 of the Civil Code.
In Bahia vs. Litonjua and Leynes (30 Phil., 624 [year 1915), the action was for damages for the
death of the plaintiff's daughter alleged to have been caused by the negligence of the servant in
driving an automobile over the child. It appeared that the cause of the mishap was a defect in the
steering gear. The defendant Leynes had rented the automobile from the International Garage of
Manila, to be used by him in carrying passengers during the fiesta of Tuy, Batangas. Leynes was
ordered by the lower court to pay P1,000 as damages to the plaintiff. On appeal this Court
reversed the judgment as to Leynes on the ground that he had shown that the exercised the care
of a good father of a family, thus overcoming the presumption of negligence under article 1903.
This Court said:
As to selection, the defendant has clearly shown that he exercised the care and
diligence of a good father of a family. He obtained the machine from a reputable
garage and it was, so far as appeared, in good condition. The workmen were likewise
selected from a standard garage, were duly licensed by the Government in their
particular calling, and apparently thoroughly competent. The machine had been used
but a few hours when the accident occurred and it is clear from the evidence that the
defendant had no notice, either actual or constructive, of the defective condition of the
steering gear.
The legal aspect of the case was discussed by this Court thus:
Article 1903 of the Civil Code not only establishes liability in cases of negligence, but
also provides when the liability shall cease. It says:
"The liability referred to in this article shall cease when the persons
mentioned therein prove that they employed all the diligence of a good
father of a family to avoid the damage."
From this article two things are apparent: (1) That when an injury is caused by the
negligence of a servant or employee there instantly arises a presumption of law that
there was negligence on the part of the matter or employer either in the selection of
the servant or employee, or in supervision over him after the selection, or both; and (2)
that presumption is juris tantum and not juris et de jure, and consequently, may be
rebutted. It follows necessarily that if the employer shows to the satisfaction of the
court that in selection and supervision he has exercised the care and diligence of a
good father of a family, the presumption is overcome and he is relieve from liability.
This theory bases the responsibility of the master ultimately on his own negligence
and not on that of his servant.
The doctrine of the case just cited was followed by this Court in Cerf vs. Medel (33 Phil., 37
[year 1915]). In the latter case, the complaint alleged that the defendant's servant had so
negligently driven an automobile, which was operated by defendant as a public vehicle, that said
automobile struck and damaged the plaintiff's motorcycle. This Court, applying article 1903 and
following the rule in Bahia vs. Litonjua and Leynes, said in part (p. 41) that:
 The master is liable for the negligent acts of his servant where he is the owner or
director of a business or enterprise and the negligent acts are committed while the
servant is engaged in his master's employment as such owner.
Another case which followed the decision in Bahia vs. Litonjua and Leynes was Cuison vs.
Norton & Harrison Co., 55 Phil., 18 (year 1930). The latter case was an action for damages
brought by Cuison for the death of his seven-year-old son Moises. The little boy was on his way
to school with his sister Marciana. Some large pieces of lumber fell from a truck and pinned the
boy underneath, instantly killing him. Two youths, Telesforo Binoya and Francisco Bautista,
who were working for Ora, an employee of defendant Norton & Harrison Co., pleaded guilty to
the crime of homicide through reckless negligence and were sentenced accordingly. This Court,
applying articles 1902 and 1903, held:
The basis of civil law liability is not respondent superior but the relationship of pater
familias. This theory bases the liability of the master ultimately on his own negligence
and not on that of his servant. (Bahia vs.Litonjua and Leynes [1915], 30 Phil., 624;
Cangco vs. Manila Railroad Co. [1918], 38 Phil., 768.)
In Walter A. Smith & Co. vs. Cadwallader Gibson Lumber Co., 55 Phil., 517 (year 1930) the
plaintiff brought an action for damages for the demolition of its wharf, which had been struck by
the steamer Helen C belonging to the defendant. This Court held (p. 526):
The evidence shows that Captain Lasa at the time the plaintiff's wharf collapsed was a
duly licensed captain, authorized to navigate and direct a vessel of any tonnage, and
that the appellee contracted his services because of his reputation as a captain,
according to F. C. Cadwallader. This being so, we are of the opinion that the
presumption of liability against the defendant has been overcome by the exercise of
the care and diligence of a good father of a family in selecting Captain Lasa, in
accordance with the doctrines laid down by this court in the cases cited above, and the
defendant is therefore absolved from all liability.
It is, therefore, seen that the defendant's theory about his secondary liability is negatived by the
six cases above set forth. He is, on the authority of these cases, primarily and directly
responsible in damages under article 1903, in relation to article 1902, of the Civil Code.
Let us now take up the Philippine decisions relied upon by the defendant. We study first, City of
Manila vs. Manila Electric Co., 52 Phil., 586 (year 1928). A collision between a truck of the
City of Manila and a street car of the Manila Electric Co. took place on June 8, 1925. The truck
was damaged in the amount of P1,788.27. Sixto Eustaquio, the motorman, was prosecuted for
the crime of damage to property and slight injuries through reckless imprudence. He was found
guilty and sentenced to pay a fine of P900, to indemnify the City of Manila for P1,788.27, with
subsidiary imprisonment in case of insolvency. Unable to collect the indemnity from Eustaquio,
the City of Manila filed an action against the Manila Electric Company to obtain payment,
claiming that the defendant was subsidiarily liable. The main defense was that the defendant had
exercised the diligence of a good father of a family to prevent the damage. The lower court
rendered judgment in favor of the plaintiff. This Court held, in part, that this case was governed
by the Penal Code, saying:
With this preliminary point out of the way, there is no escaping the conclusion that the
provisions of the Penal Code govern. The Penal Code in easily understandable
language authorizes the determination of subsidiary liability. The Civil Code negatives
its application by providing that civil obligations arising from crimes or misdemeanors
shall be governed by the provisions of the Penal Code. The conviction of the
motorman was a misdemeanor falling under article 604 of the Penal Code. The act of
the motorman was not a wrongful or negligent act or omission not punishable by law.
Accordingly, the civil obligation connected up with the Penal Code and not with
article 1903 of the Civil Code. In other words, the Penal Code affirms its jurisdiction
while the Civil Code negatives its jurisdiction. This is a case of criminal negligence
out of which civil liability arises and not a case of civil negligence.
xxx xxx xxx
Our deduction, therefore, is that the case relates to the Penal Code and not to the Civil
Code. Indeed, as pointed out by the trial judge, any different ruling would permit the
master to escape scot-free by simply alleging and proving that the master had
exercised all diligence in the selection and training of its servants to prevent the
damage. That would be a good defense to a strictly civil action, but might or might not
be to a civil action either as a part of or predicated on conviction for a crime or
misdemeanor. (By way of parenthesis, it may be said further that the statements here
made are offered to meet the argument advanced during our deliberations to the effect
that article 0902 of the Civil Code should be disregarded and codal articles 1093 and
1903 applied.)
It is not clear how the above case could support the defendant's proposition, because the Court
of Appeals based its decision in the present case on the defendant's primary responsibility under
article 1903 of the Civil Code and not on his subsidiary liability arising from Fontanilla's
criminal negligence. In other words, the case of City of Manila vs. Manila Electric Co., supra, is
predicated on an entirely different theory, which is the subsidiary liability of an employer arising
from a criminal act of his employee, whereas the foundation of the decision of the Court of
Appeals in the present case is the employer's primary liability under article 1903 of the Civil
Code. We have already seen that this is a proper and independent remedy.
Arambulo vs. Manila Electric Co. (55 Phil., 75), is another case invoked by the defendant. A
motorman in the employ of the Manila Electric Company had been convicted o homicide by
simple negligence and sentenced, among other things, to pay the heirs of the deceased the sum
of P1,000. An action was then brought to enforce the subsidiary liability of the defendant as
employer under the Penal Code. The defendant attempted to show that it had exercised the
diligence of a good father of a family in selecting the motorman, and therefore claimed
exemption from civil liability. But this Court held:
In view of the foregoing considerations, we are of opinion and so hold, (1) that the
exemption from civil liability established in article 1903 of the Civil Code for all who
have acted with the diligence of a good father of a family, is not applicable to the
subsidiary civil liability provided in article 20 of the Penal Code.
The above case is also extraneous to the theory of the defendant in the instant case, because the
action there had for its purpose the enforcement of the defendant's subsidiary liability under the
Penal Code, while in the case at bar, the plaintiff's cause of action is based on the defendant's
primary and direct responsibility under article 1903 of the Civil Code. In fact, the above case
destroys the defendant's contention because that decision illustrates the principle that the
employer's primary responsibility under article 1903 of the Civil Code is different in character
from his subsidiary liability under the Penal Code.
In trying to apply the two cases just referred to, counsel for the defendant has failed to recognize
the distinction between civil liability arising from a crime, which is governed by the Penal Code,
and the responsibility for cuasi-delito or culpa aquiliana under the Civil Code, and has likewise
failed to give the importance to the latter type of civil action.
The defendant-petitioner also cites Francisco vs. Onrubia (46 Phil., 327). That case need not be
set forth. Suffice it to say that the question involved was also civil liability arising from a crime.
Hence, it is as inapplicable as the two cases above discussed.
The foregoing authorities clearly demonstrate the separate individuality of cuasi-delitos or culpa
aquiliana under the Civil Code. Specifically they show that there is a distinction between civil
liability arising from criminal negligence (governed by the Penal Code) and responsibility for
fault or negligence under articles 1902 to 1910 of the Civil Code, and that the same negligent act
may produce either a civil liability arising from a crime under the Penal Code, or a separate
responsibility for fault or negligence under articles 1902 to 1910 of the Civil Code. Still more
concretely, the authorities above cited render it inescapable to conclude that the employer in
this case the defendant-petitioner is primarily and directly liable under article 1903 of the
Civil Code.
The legal provisions, authors, and cases already invoked should ordinarily be sufficient to
dispose of this case. But inasmuch as we are announcing doctrines that have been little
understood in the past, it might not be inappropriate to indicate their foundations.
Firstly, the Revised Penal Code in article 365 punishes not only reckless but also simple
negligence. If we were to hold that articles 1902 to 1910 of the Civil Code refer only to fault or
negligence not punished by law, according to the literal import of article 1093 of the Civil Code,
the legal institution of culpa aquiliana would have very little scope and application in actual life.
Death or injury to persons and damage to property through any degree of negligence even the
slightest would have to be indemnified only through the principle of civil liability arising
from a crime. In such a state of affairs, what sphere would remain for cuasi-delito or culpa
aquiliana? We are loath to impute to the lawmaker any intention to bring about a situation so
absurd and anomalous. Nor are we, in the interpretation of the laws, disposed to uphold the letter
that killeth rather than the spirit that giveth life. We will not use the literal meaning of the law to
smother and render almost lifeless a principle of such ancient origin and such full-grown
development as culpa aquiliana or cuasi-delito, which is conserved and made enduring in
articles 1902 to 1910 of the Spanish Civil Code.
Secondly, to find the accused guilty in a criminal case, proof of guilt beyond reasonable doubt is
required, while in a civil case, preponderance of evidence is sufficient to make the defendant
pay in damages. There are numerous cases of criminal negligence which can not be shown
beyond reasonable doubt, but can be proved by a preponderance of evidence. In such cases, the
defendant can and should be made responsible in a civil action under articles 1902 to 1910 of
the Civil Code. Otherwise, there would be many instances of unvindicated civil wrongs. Ubi jus
ibi remedium.
Thirdly, to hold that there is only one way to make defendant's liability effective, and that is, to
sue the driver and exhaust his (the latter's) property first, would be tantamount to compelling the
plaintiff to follow a devious and cumbersome method of obtaining relief. True, there is such a
remedy under our laws, but there is also a more expeditious way, which is based on the primary
and direct responsibility of the defendant under article 1903 of the Civil Code. Our view of the
law is more likely to facilitate remedy for civil wrongs, because the procedure indicated by the
defendant is wasteful and productive of delay, it being a matter of common knowledge that
professional drivers of taxis and similar public conveyance usually do not have sufficient means
with which to pay damages. Why, then, should the plaintiff be required in all cases to go
through this roundabout, unnecessary, and probably useless procedure? In construing the laws,
courts have endeavored to shorten and facilitate the pathways of right and justice.
At this juncture, it should be said that the primary and direct responsibility of employers and
their presumed negligence are principles calculated to protect society. Workmen and employees
should be carefully chosen and supervised in order to avoid injury to the public. It is the masters
or employers who principally reap the profits resulting from the services of these servants and
employees. It is but right that they should guarantee the latter's careful conduct for the personnel
and patrimonial safety of others. As Theilhard has said, "they should reproach themselves, at
least, some for their weakness, others for their poor selection and all for their negligence." And
according to Manresa, "It is much more equitable and just that such responsibility should fall
upon the principal or director who could have chosen a careful and prudent employee, and not
upon the injured person who could not exercise such selection and who used such employee
because of his confidence in the principal or director." (Vol. 12, p. 622, 2nd Ed.) Many jurists
also base this primary responsibility of the employer on the principle of representation of the
principal by the agent. Thus, Oyuelos says in the work already cited (Vol. 7, p. 747) that before
third persons the employer and employee "vienen a ser como una sola personalidad, por
refundicion de la del dependiente en la de quien le emplea y utiliza." ("become as one
personality by the merging of the person of the employee in that of him who employs and
utilizes him.") All these observations acquire a peculiar force and significance when it comes to
motor accidents, and there is need of stressing and accentuating the responsibility of owners of
motor vehicles.
Fourthly, because of the broad sweep of the provisions of both the Penal Code and the Civil
Code on this subject, which has given rise to the overlapping or concurrence of spheres already
discussed, and for lack of understanding of the character and efficacy of the action for culpa
aquiliana, there has grown up a common practice to seek damages only by virtue of the civil
responsibility arising from a crime, forgetting that there is another remedy, which is by invoking
articles 1902-1910 of the Civil Code. Although this habitual method is allowed by our laws, it
has nevertheless rendered practically useless and nugatory the more expeditious and effective
remedy based on culpa aquiliana or culpa extra-contractual. In the present case, we are asked to
help perpetuate this usual course. But we believe it is high time we pointed out to the harm done
by such practice and to restore the principle of responsibility for fault or negligence under
articles 1902 et seq. of the Civil Code to its full rigor. It is high time we caused the stream of
quasi-delict or culpa aquiliana to flow on its own natural channel, so that its waters may no
longer be diverted into that of a crime under the Penal Code. This will, it is believed, make for
the better safeguarding of private rights because it re-establishes an ancient and additional
remedy, and for the further reason that an independent civil action, not depending on the issues,
limitations and results of a criminal prosecution, and entirely directed by the party wronged or
his counsel, is more likely to secure adequate and efficacious redress.
In view of the foregoing, the judgment of the Court of Appeals should be and is hereby
affirmed, with costs against the defendant-petitioner.
Yulo, C.J., Moran, Ozaeta and Paras, JJ., concur.