DY TEBAN TRADING, INC.,PETITIONER, VERSUS JOSE CHING AND/OR LIBERTY FOREST, INC.

AND CRESILITO
M. LIMBAGA, RESPONDENTS., G.R. NO. 161803, 2008 FEBRUARY 4, 3RD DIVISION 2008
February
THE vehicular collision resulting in damages and injuries in this case could have been avoided if the stalled prime mover with trailer were parked properly
and equipped with an early warning device. It is high time We sounded the call for strict enforcement of the law and regulation on traffic and vehicle
registration. Panahon na para mahigpit na ipatupad ang batas at regulasyon sa trapiko at pagpapatala ng sasakyan.
Before Us is a petition for review on certiorari of the Decision[1] of the Court of Appeals (CA) modifying that[2] of the Regional Trial Court (RTC) in
Butuan City finding private respondents Liberty Forest, Inc. and Cresilito Limbaga liable to petitioner Dy Teban Trading, Inc. for damages.
Facts
On July 4, 1995, at around 4:45 a.m., Rogelio Ortiz, with helper Romeo Catamora, was driving a Nissan van owned by petitioner Dy Teban Trading, Inc.
along the National Highway in Barangay Sumilihon, Butuan City, going to Surigao City. They were delivering commercial ice to nearby barangays and
municipalities. A Joana Paula passenger bus was cruising on the opposite lane towards the van. In between the two vehicles was a parked prime mover
with a trailer, owned by private respondent Liberty Forest, Inc.[3]

The night before, at around 10:00 p.m., the prime mover with trailer suffered a tire blowout. The driver, private respondent Cresilito Limbaga, parked the
prime mover askew occupying a substantial portion of the national highway, on the lane of the passenger bus. He parked the prime mover with trailer at the
shoulder of the road with the left wheels still on the cemented highway and the right wheels on the sand and gravel shoulder of the highway.[4] The prime
mover was not equipped with triangular, collapsible reflectorized plates, the early warning device required under Letter of Instruction No. 229. As substitute,
Limbaga placed a banana trunk with leaves on the front and the rear portion of the prime mover to warn incoming motorists. It is alleged that Limbaga
likewise placed kerosene lighted tin cans on the front and rear of the trailer.[5]

To avoid hitting the parked prime mover occupying its lane, the incoming passenger bus swerved to the right, onto the lane of the approaching Nissan van.
Ortiz saw two bright and glaring headlights and the approaching passenger bus. He pumped his break slowly, swerved to the left to avoid the oncoming bus
but the van hit the front of the stationary prime mover. The passenger bus hit the rear of the prime mover.[6]

Ortiz and Catamora only suffered minor injuries. The Nissan van, however, became inoperable as a result of the incident. After the collision, SPO4 Teofilo
Pame conducted an investigation and submitted a police traffic incident investigation report.[7]

On October 31, 1995, petitioner Nissan van owner filed a complaint for damages[8] against private respondents prime mover owner and driver with the RTC
in Butuan City. The Joana Paula passenger bus was not impleaded as defendant in the complaint.

RTC Disposition

On August 7, 2001, the RTC rendered a decision in favor of petitioner Dy Teban Trading, Inc. with a fallo reading:

WHEREFORE, judgment is hereby rendered directing, ordaining and ordering:

A) That defendants Liberty Forest, Inc. and Cresilito M. Limbaga pay, jointly and solidarily, plaintiff Dy Teban Trading, Inc. the amounts of P279,832.00 as
actual and compensatory damages, P30,000.00 as attorney’s fees and P5,000.00 as expenses of litigation;

b) That all money claims of plaintiff Rogelio C. Ortiz are dismissed;

c) That defendant Jose Ching is absolved from any civil liability or the case against him dismissed;
d) That the counterclaim of all the defendants is dismissed; and
e) That defendants Liberty Forest, Inc. and Cresilito M. Limbaga to pay, jointly and solidarily, the costs.

SO ORDERED.[9]

The RTC held that the proximate cause of the three-way vehicular collision was improper parking of the prime mover on the national highway and the
absence of an early warning device on the vehicle, thus:

The court finds that the proximate cause of the incidents is the negligence and carelessness attributable to the defendants. When the trailer being pulled by
the prime mover suffered two (2) flat tires at Sumilihon, the prime mover and trailer were parked haphazardly, as the right tires of the prime mover were the
only ones on the sand and gravel shoulder of the highway while the left tires and all the tires of the trailer were on the cemented pavement of the highway,
occupying almost the whole of the right lane on the direction the prime mover and trailer were traveling. The statement of Limbaga that he could not park the
prime mover and trailer deeper into the sand and gravel shoulder of the highway to his right because there were banana plants is contradicted by the picture
marked Exhibit “F.” The picture shows that there was ample space on the shoulder. If defendant Limbaga was careful and prudent enough, he should have
the prime mover and trailer traveled more distance forward so that the bodies of the prime mover and trailer would be far more on the shoulder rather than
on the cemented highway when they were parked. x x x The court has some doubts on the statement of witness-driver Limbaga that there were banana
trunks with leaves and lighted tin cans with crude oil placed 3 strides in front of the prime mover and behind the trailer because the testimonies of witnesses
Rogelio C. Ortiz, driver of the ice van, Romeo D. Catamora, helper of the ice van, and Police Traffic Investigator SPO3 Teofilo M. Pame show that there were
no banana trunks with leaves and lighted tin cans at the scene of the incident. But even assuming that there were banana trunks with leaves but they were
placed close to the prime mover and trailer as they were placed 3 strides away which to the mind of the court is equivalent approximately to 3 meters and
with this distance, approaching vehicles would have no sufficient time and space to make a complete stop, especially if the vehicles are heavy and loaded. If
there were lighted tin cans, it was not explained by the defendants why the driver, especially driver witness Ortiz, did not see them.

Defendant Liberty Forest, Inc. did not exercise the diligence of a good father of a family in managing and running its business. The evidence on
record shows that it failed to provide its prime mover and trailer with the required “early warning devices” with reflectors and it did not keep proper
maintenance and condition of the prime mover and the trailer. The circumstances show that the trailer were provided with wornout tires and with only one (1)
piece of spare tire. The pictures marked Exhibit “3” and “4” show that two (2) flat tires suffered by the trailer and these two (2) tires were attached to one of
the two (2) I-beams or axles attached to the rear of the trailer which axle is very near but behind the other axle and with the location of the 2 I-beams, it
would have the other I-beam that would have suffered the flat tires as it has to bear the brunt of weight of the D-8 bulldozer. The bulldozer was not loaded
directly above the two (2) I-beams as 2 I-beams, as a pair, were attached at the far rear end of the trailer.
 However, defendant Jose Ching should be absolved of any liability as there is no showing that he is the manager or CEO of defendant Liberty Forest,
Inc. Although in the answer, it is admitted that he is an officer of the defendant corporation, but it is not clarified what kind of position he is holding, as he
could be an officer as one of the members of the Board of Directors or a cashier and treasurer of the corporation. Witness Limbaga in his testimony
mentioned a certain Boy Ching as the Manager but it was never clarified whether or not Boy Ching and defendant Jose Ching is one and the same person.
[10]

Private respondents appealed to the CA.

CA Disposition

On August 28, 2003, the CA reversed the RTC decision, disposing as follows:

WHEREFORE, premises considered, the decision dated August 7, 2001 of the Regional Trial Court, Branch 2, Butuan City in Civil Case No. 4360 is
hereby PARTLY MODIFIED by absolving the defendants-appellants/appellees of any liability to plaintiffs-appellants/appellees by reason of the incident on
July 4, 1995.

The dismissal of the case against Jose Ching, the counterclaim of defendants-appellants/appellees and the money claim of Rogelio Ortiz STANDS.

SO ORDERED.[11]
In partly reversing or partly modifying the RTC decision, the CA held that the proximate cause of the vehicular collision was the failure of the Nissan van to
give way or yield to the right of way of the passenger bus, thus:
It was stated that the Joana Paula bus in trying to avoid a head-on collision with the truck, sideswept the parked trailer loaded with bulldozer.

Evidently, the driver of the Joana Paula bus was aware of the presence on its lane of the parked trailer with bulldozer. For this reason, it proceeded
to occupy what was left of its lane and part of the opposite lane. The truck occupying the opposite lane failed to give way or yield the right of way to the
oncoming bus by proceeding with the same speed. The two vehicles were, in effect, trying to beat each other in occupying a single lane. The bus was the
first to occupy the said lane but upon realizing that the truck refused to give way or yield the right of way, the bus, as a precaution, geared to its right where
the trailer was parked. Unfortunately, the bus miscalculated its distance from the parked trailer and its rear right side hit the protruding blade of the bulldozer
then on the top of the parked trailer. The impact of the collision on its right rear side with the blade of the bulldozer threw the bus further to the opposite lane,
landing its rear portion on the shoulder of the opposite lane.

Facts of the case reveal that when Ortiz, the driver of the truck, failed to give the Joana Paula bus the space on the road it needed, the latter vehicle
scraped its rear right side on the protruded bulldozer blade and the impact threw the bus directly on the path of the oncoming truck. This made plaintiffs-
appellants/appellees conclude that the Joana Paula bus occupied its lane which forced Ortiz, the driver of the truck, to swerve to its left and ram the front of
the parked trailer.

The trailer was parked because its two (2) rear-left tires were blown out. With a bulldozer on top of the trailer and two (2) busted tires, it would be
dangerous and quite impossible for the trailer to further park on the graveled shoulder of the road. To do so will cause the flat car to tilt and may cause the
bulldozer to fall from where it was mounted. In fact, it appeared that the driver of the trailer tried its best to park on the graveled shoulder since the right-front
tires were on the graveled shoulder of the road.

The lower court erred in stating that the Joana Paula bus swerved to the left of the truck because it did not see the parked trailer due to lack of
warning sign of danger of any kind that can be seen from a distance. The damage suffered by the Joana Paula bus belied this assessment. As stated
before, the Joana Paula bus, with the intention of passing first which it did, first approached the space beside the parked trailer, veered too close to the
parked trailer thereby hitting its rear right side on the protruding bulldozer blade. Since the damage was on the rear right most of the bus, it was clearly on
the space which was wide enough for a single passing vehicle but not sufficient for two (2) passing vehicles. The bus was thrown right to the path of the
truck by the impact of the collision of its rear right side with the bulldozer blade.[12]

The CA disagreed with the RTC that the prime mover did not have an early warning device. The appellate court accepted the claim of private
respondent that Limbaga placed kerosene lighted tin cans on the front and rear of the trailer which, in Baliwag Transit, Inc. v. Court of Appeals,[13] may act
as substitute early warning device. The CA stated:

Likewise, it was incorrect for the lower court to state that there was no warning sign of danger of any kind, most probably referring to the absence of
the triangular reflectorized plates. The police sketch clearly indicated the stack of banana leaves placed at the rear of the parked trailer. The trailer’s driver
testified that they placed kerosene lighted tin can at the back of the parked trailer.

A pair of triangular reflectorized plates is not the only early warning device allowed by law. The Supreme Court (in Baliwag Transit, Inc. v. Court of
Appeals) held that:

“x x x Col. Dela Cruz and Romano testified that they did not see any early warning device at the scene of the accident. They were referring to the
triangular reflectorized plates in red and yellow issued by the Land Transportation Office. However, the evidence shows that Recontique and Ecala placed a
kerosene lamp or torch at the edge of the road, near the rear portion of the truck to serve as an early warning device. This substantially complies with
Section 34(g) of the Land Transportation and Traffic Code x x x

Baliwag’s argument that the kerosene lamp or torch does not substantially comply with the law is untenable. The aforequoted law clearly allows the
use not only of an early warning device of the triangular reflectorized plates’ variety but also parking lights or flares visible one hundred meters away. x x x.”
This Court holds that the defendants-appellants/appellees were not negligent in parking the trailer on the scene of the accident. It would have been
different if there was only one flat tire and defendant-appellant/appellee Limbaga failed to change the same and left immediately.
As such, defendants-appellants/appellees are not liable for the damages suffered by plaintiffs-appellants/appellees. Whatever damage plaintiffs-
appellants/appellees suffered, they alone must bear them.[14]

Issues
Petitioner raises two issues[15] for Our consideration, to wit:
I.
THE HONORABLE COURT OF APPEALS, WITHOUT ANY AVAILABLE CONCRETE EVIDENCE, ERRONEOUSLY DETERMINED THAT THERE WERE
EARLY WARNING DEVICES PLACED IN FRONT OF THE DEFENDANT-APPELLANTS/APPELLEES’ TRUCK AND FLAT CAR TO WARN PLAINTIFF-
APPELLANT/APPELLEE ROGELIO ORTIZ OF THEIR PRESENCE.

II.
WITH DUE RESPECT, IT IS HIGH TIME TO ENFORCE THE LAW ON EARLY WARNING DEVICES IN THE PUBLIC INTEREST.

Our Ruling

The petition is meritorious.

The meat of the petition is whether or not the prime mover is liable for the damages suffered by the Nissan van. The RTC ruled in the affirmative holding that
the proximate cause of the vehicular collision was the negligence of Limbaga in parking the prime mover on the national highway without an early warning
device on the vehicle. The CA reversed the RTC decision, holding that the proximate cause of the collision was the negligence of Ortiz in not yielding to the
right of way of the passenger bus.

Article 2176 of the Civil Code provides that whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay for the
damage done. Such fault or negligence, if there is no pre-existing contractual relation between the parties, is called a quasi-delict. To sustain a claim based
on quasi-delict, the following requisites must concur: (a) damage suffered by plaintiff; (b) fault or negligence of defendant; and (c) connection of cause and
effect between the fault or negligence of defendant and the damage incurred by plaintiff.[16]
There is no dispute that the Nissan van suffered damage. That is borne by the records and conceded by the parties. The outstanding issues are
negligence and proximate cause. Tersely put, the twin issues are: (a) whether or not prime mover driver Limbaga was negligent in parking the vehicle;
and (b) whether or not his negligence was the proximate cause of the damage to the Nissan van.

Limbaga was negligent in parking the prime mover on the national highway; he failed to prevent or minimize the risk to oncoming motorists.

Negligence is defined as the failure to observe for the protection of the interests of another person that degree of care, precaution, and vigilance which the
circumstances justly demand, whereby such other person suffers injury.[17] The Supreme Court stated the test of negligence in the landmark case Picart v.
Smith[18] as follows:

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

The test of negligence is objective. We measure the act or omission of the tortfeasor with that of an ordinary reasonable person in the same situation. The
test, as applied to this case, is whether Limbaga, in parking the prime mover, used that reasonable care and caution which an ordinary reasonable person
would have used in the same situation.

We find that Limbaga was utterly negligent in parking the prime mover askew on the right side of the national highway. The vehicle occupied a substantial
portion of the national road on the lane of the passenger bus. It was parked at the shoulder of the road with its left wheels still on the cemented highway and
the right wheels on the sand and gravel shoulder of the highway. It is common sense that the skewed parking of the prime mover on the national road posed
a serious risk to oncoming motorists. It was incumbent upon Limbaga to take some measures to prevent that risk, or at least minimize it.

We are unable to agree with the CA conclusion “it would have been dangerous and quite impossible to further park the prime mover on the graveled
shoulder of the road because the prime mover may tilt and the bulldozer may fall off.” The photographs taken after the incident show that it could have been
possible for Limbaga to park the prime mover completely on the shoulder of the national road without risk to oncoming motorists. We agree with the RTC
observation on this point, thus:

x x x The statement of Limbaga that he could not park the prime mover and trailer deeper into the sand and gravel shoulder of the highway to his
right because there were banana plants is contradicted by the picture marked Exhibit “F.” The picture shows that there was ample space on the shoulder. If
defendant Limbaga was careful and prudent enough, he should have the prime mover and trailer traveled more distance forward so that the bodies of the
prime mover and trailer would be far more on the shoulder rather than on the cemented highway when they were parked. Although at the time of the
incident, it was about 4:45 in the morning and it was drizzling but there is showing that it was pitch dark that whoever travels along the highway must be
extra careful. If the Joana Paula bus swerved to the lane on which the “Nissan” ice van was properly traveling, as prescribed by Traffic Rules and
Regulations, it is because the driver of the bus did not see at a distance the parked prime mover and trailer on the bus’ proper lane because there was no
warning signs of danger of any kind that can be seen from a distance.[19]

Limbaga also failed to take proper steps to minimize the risk posed by the improperly parked prime mover. He did not immediately inform his
employer, private respondent Liberty Forest, Inc., that the prime mover suffered two tire blowouts and that he could not have them fixed because he had only
one spare tire. Instead of calling for help, Limbaga took it upon himself to simply place banana leaves on the front and rear of the prime mover to serve as
warning to oncoming motorists. Worse, Limbaga slept on the prime mover instead of standing guard beside the vehicle. By his own account, Limbaga was
sleeping on the prime mover at the time of the collision and that he was only awakened by the impact of the Nissan van and the passenger bus on the prime
mover.[20]

Limbaga also admitted on cross-examination that it was his first time to drive the prime mover with trailer loaded with a D-8 caterpillar bulldozer.[21] We find
that private respondent Liberty Forest, Inc. was utterly negligent in allowing a novice driver, like Limbaga, to operate a vehicle, such as a truck loaded with a
bulldozer, which required highly specialized driving skills. Respondent employer clearly failed to properly supervise Limbaga in driving the prime mover.

The RTC noted that private respondent Liberty Forest, Inc. also failed to keep the prime mover in proper condition at the time of the collision. The prime
mover had worn out tires. It was only equipped with one spare tire. It was for this reason that Limbaga was unable to change the two blown out tires
because he had only one spare. The bulldozer was not even loaded properly on the prime mover, which caused the tire blowouts.

All told, We agree with the RTC that private respondent Limbaga was negligent in parking the prime mover on the national highway. Private respondent
Liberty Forest, Inc. was also negligent in failing to supervise Limbaga and in ensuring that the prime mover was in proper condition.
The case of Baliwag Transit, Inc. v. Court of Appeals is inapplicable; Limbaga did not put lighted kerosene tin cans on the front and rear of the prime mover.

Anent the absence of an early warning device on the prime mover, the CA erred in accepting the bare testimony of Limbaga that he placed kerosene lighted
tin cans on the front and rear of the prime mover. The evidence on records belies such claim. The CA reliance on Baliwag Transit, Inc. v. Court of
Appeals[22] as authority for the proposition that kerosene lighted tin cans may act as substitute early warning device is misplaced.

First, the traffic incident report did not mention any lighted tin cans on the prime mover or within the immediate vicinity of the accident. Only banana leaves
were placed on the prime mover. The report reads:

VIII – RESULT OF INVESTIGATION: A Joana Paula Bus, with Body No. 7788, with Plate No. LVA-137, driven by one Temestocles Relova v. Antero,
of legal age, married and a resident of San Roque, Kitcharao, Agusan del Norte, while traveling along the National Highway, coming from the east going to
the west direction, as it moves along the way and upon reaching Brgy. Sumilihon, Butuan City to evade bumping to the approaching Nissan Ice Van with
Plate No. PNT-247, driven by one Rogelio Cortez y Ceneza. As the result, the Joana Paula Bus accidentally busideswept (sic) to the parked Prime Mover
with Trailer loaded with Bulldozer without early warning device, instead placing only dry banana leaves three (3) meters at the rear portion of the Trailer,
while failure to place at the front portion, and the said vehicle occupied the whole lane. As the result, the Joana Paula Bus hit to the left edge blade of the
Bulldozer. Thus, causing the said bus swept to the narrow shouldering, removing the rear four (4) wheels including the differential and injuring the above-
stated twelve (12) passengers and damaged to the right side fender above the rear wheel. Thus, causing damage on it. While the Nissan Ice Van in
evading, accidentally swerved to the left lane and accidentally bumped to the front bumper of the parked Prime Mover with Trailer loaded with Bulldozer.
Thus, causing heavy damage to said Nissan Ice Van including the cargoes of the said van.[23]

Second, SPO4 Pame, who investigated the collision, testified[24] that only banana leaves were placed on the front and rear of the prime mover. He did not
see any lighted tin cans in the immediate vicinity of the collision.

Third, the claim of Limbaga that he placed lighted tin cans on the front and rear of the prime mover belatedly surfaced only during his direct examination. No
allegation to this effect was made by private respondents in their Answer to the complaint for damages. Petitioner’s counsel promptly objected to the
testimony of Limbaga, thus:

ATTY. ROSALES:

Q. Now you mentioned about placing some word signs in front and at the rear of the prime mover with trailer, will you please describe to us what this word
signs are?

A. We placed a piece of cloth on tin cans and filled them with crude oil. And these tin cans were lighted and they are like torches. These two lights or
torches were placed in front and at the rear side of the prime mover with trailer. After each torch, we placed banana trunk. The banana trunk is placed
between the two (2) torches and the prime mover, both on the rear and on the front portion of the prime mover.

Q. How far was the lighted tin cans with wick placed in front of the prime mover.

ATTY. ASIS:

At this point, we will be objecting to questions particularly referring to the alleged tin cans as some of the warning-sign devices, considering that there is
no allegation to that effect in the answer of the defendants. The answer was just limited to the numbers 4 & 5 of the answer. And, therefore, if we follow the
rule of the binding effect of an allegation in the complaint, then the party will not be allowed to introduce evidence to attack jointly or rather the same,
paragraph 5 states, warning device consisting of 3 banana trunks, banana items and leaves were filed. He can be cross-examined in the point, Your Honor.
COURT:

Q. Put that on record that as far as this tin cans are concerned, the plaintiffs are interposing continuing objections. But the Court will allow the question.
[25]

We thus agree with the RTC that Limbaga did not place lighted tin cans on the front and rear of the prime mover. We give more credence to the traffic
incident report and the testimony of SPO4 Pame that only banana leaves were placed on the vehicle. Baliwag Transit, Inc. v. Court of Appeals[26] thus finds
no application to the case at bar.

The skewed parking of the prime mover was the proximate cause of the collision.

Proximate cause is defined as that cause, which, in natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury, and
without which the result would not have occurred. More comprehensively, proximate cause is that cause acting first and producing the injury, either
immediately or by setting other events in motion, all constituting a natural and continuous chain of events, each having a close causal connection with its
immediate predecessor, the final event in the chain immediately effecting the injury as natural and probable result of the cause which first acted, under such
circumstances that the person responsible for the first event should, as an ordinarily prudent and intelligent person, have reasonable ground to expect at the
moment of his act or default that an injury to some person might probably result therefrom.[27]

There is no exact mathematical formula to determine proximate cause. It is based upon mixed considerations of logic, common sense, policy and
precedent.[28] Plaintiff must, however, establish a sufficient link between the act or omission and the damage or injury. That link must not be remote or far-
fetched; otherwise, no liability will attach. The damage or injury must be a natural and probable result of the act or omission. In the precedent-setting Vda.
de Bataclan v. Medina,[29] this Court discussed the necessary link that must be established between the act or omission and the damage or injury, viz.:

It may be that ordinarily, when a passenger bus overturns, and pins down a passenger, merely causing him physical injuries, if through some event,
unexpected and extraordinary, the overturned bus is set on fire, say, by lightning, or if some highwaymen after looting the vehicle sets it on fire, and the
passenger is burned to death, one might still contend that the proximate cause of his death was the fire and not the overturning of the vehicle. But in the
present case and under the circumstances obtaining in the same, we do not hesitate to hold that the proximate cause of the death of Bataclan was the
overturning of the bus, this for the reason that when the vehicle turned not only on its side but completely on its back, the leaking of the gasoline from the
tank was not unnatural or unexpected; that the coming of the men with a lighted torch was in response to the call for help, made not only by the passengers,
but most probably, by the driver and the conductor themselves, and that because it was very dark (about 2:30 in the morning), the rescuers had to carry a
light with them; and coming as they did from a rural area where lanterns and flashlights were not available, they had to use a torch, the most handy and
available; and what was more natural than that said rescuers should innocently approach the overturned vehicle to extend the aid and effect the rescue
requested from them. In other words, the coming of the men with the torch was to be expected and was natural sequence of the overturning of the bus, the
trapping of some of its passengers’ bus, the trapping of some of its passengers and the call for outside help.

The ruling in Bataclan has been repeatedly cited in subsequent cases as authority for the proposition that the damage or injury must be a natural or
probable result of the act or omission. Here, We agree with the RTC that the damage caused to the Nissan van was a natural and probable result of the
improper parking of the prime mover with trailer. As discussed, the skewed parking of the prime mover posed a serious risk to oncoming motorists. Limbaga
failed to prevent or minimize that risk. The skewed parking of the prime mover triggered the series of events that led to the collision, particularly the swerving
of the passenger bus and the Nissan van.

Private respondents Liberty Forest, Inc. and Limbaga are liable for all damages that resulted from the skewed parking of the prime mover. Their liability
includes those damages resulting from precautionary measures taken by other motorist in trying to avoid collision with the parked prime mover. As We see
it, the passenger bus swerved to the right, onto the lane

of the Nissan van, to avoid colliding with the improperly parked prime mover. The driver of the Nissan van, Ortiz, reacted swiftly by swerving to the left, onto
the lane of the passenger bus, hitting the parked prime mover. Ortiz obviously would not have swerved if not for the passenger bus abruptly occupying his
van’s lane. The passenger bus, in turn, would not have swerved to the lane of the Nissan van if not for the prime mover improperly parked on its lane. The
skewed parking is the proximate cause of the damage to the Nissan van.

In Phoenix Construction, Inc. v. Intermediate Appellate Court,[30] this Court held that a similar vehicular collision was caused by the skewed parking of a
dump truck on the national road, thus:

The conclusion we draw from the factual circumstances outlined above is that private respondent Dionisio was negligent the night of the accident. He was
hurrying home that night and driving faster than he should have been. Worse, he extinguished his headlights at or near the intersection of General Lacuna
and General Santos Streets and thus did not see the dump truck that was parked askew and sticking out onto the road lane.

Nonetheless, we agree with the Court of First Instance and the Intermediate Appellate Court that the legal and proximate cause of the accident and of
Dionisio’s injuries was the wrongful or negligent manner in which the dump truck was parked – in other words, the negligence of petitioner Carbonel. That
there was a reasonable relationship between petitioner Carbonel’s negligence on the one hand and the accident and respondent’s injuries on the other hand,
is quite clear. Put in a slightly different manner, the collision of Dionisio’s car with the dump truck was a natural and foreseeable consequence of the truck
driver’s negligence.
We believe, secondly, that the truck driver’s negligence far from being a “passive and static condition” was rather an indispensable and efficient cause. The
collision between the dump truck and the private respondent’s car would in all probability not have occurred had the dump truck not been parked askew
without any warning lights or reflector devices. The improper parking of the dump truck created an unreasonable risk of injury for anyone driving down
General Lacuna Street and for having so created this risk, the truck driver must be held responsible. In our view, Dionisio’s negligence, although later in
point of time than the truck driver’s negligence and, therefore, closer to the accident, was not an efficient intervening or independent cause. What the
Petitioner describes as an “intervening cause” was no more than a foreseeable consequence of the risk created by the negligent manner in which the truck
driver had parked the dump truck. In other words, the petitioner truck driver owed a duty to private respondent Dionisio and others similarly situated not to
impose upon them the very risk the truck driver had created. Dionisio’s negligence was not of an independent and overpowering nature as to cut, as it were,
the chain of causation in fact between the improper parking of the dump truck and the accident, nor to sever the juris vinculum of liability. x x x
(Underscoring supplied)

We cannot rule on the proportionate or contributory liability of the passenger bus, if any, because it was not a party to the case; joint tortfeasors are solidarily
liable.

The CA also faults the passenger bus for the vehicular collision. The appellate court noted that the passenger bus was “aware” of the presence of the prime
mover on its lane, but it still proceeded to occupy the lane of the Nissan van. The passenger bus also miscalculated its distance from the prime mover when
it hit the vehicle.

We cannot definitively rule on the proportionate or contributory liability of the Joana Paula passenger bus vis-à-vis the prime mover because it was not a
party to the complaint for damages. Due process dictates that the passenger bus must be given an opportunity to present its own version of events before it
can be held liable. Any contributory or proportionate liability of the passenger bus must be litigated in a separate action, barring any defense of prescription
or laches. Insofar as petitioner is concerned, the proximate cause of the collision was the improper parking of the prime mover. It was the improper parking
of the prime mover which set in motion the series of events that led to the vehicular collision.

Even granting that the passenger bus was at fault, it’s fault will not necessarily absolve private respondents from liability. If at fault, the passenger bus will be
a joint tortfeasor along with private respondents. The liability of joint tortfeasors is joint and solidary. This means that petitioner may hold either of them
liable for damages from the collision. In Philippine National Construction Corporation v. Court of Appeals,[31] this Court held:

According to the great weight of authority, where the concurrent or successive negligent acts or omission of two or more persons, although acting
independently of each other, are, in combination, the direct and proximate cause of a single injury to a third person and it is impossible to determine in what
proportion each contributed to the injury, either is responsible for the whole injury, even though his act alone might not have caused the entire injury, or the
same damage might have resulted from the acts of the other tort-feasor x x x.

In Far Eastern Shipping Company v. Court of Appeals, the Court declared that the liability of joint tortfeasors is joint and solidary, to wit:

It may be said, as a general rule, that negligence in order to render a person liable need not be the sole cause of an injury. It is sufficient that his
negligence, concurring with one or more efficient causes other than plaintiff’s, is the proximate cause of the injury. Accordingly, where several causes
combine to produce injuries, a person is not relieved from liability because he is responsible for only one of them, it being sufficient that the negligence of the
person charged with injury is an efficient cause without which the injury would not have resulted to as great an extent, and that such cause is not attributable
to the person injured. It is no defense to one of the concurrent tortfeasors that the injury would not have resulted from his negligence alone, without the
negligence or wrongful acts of the other concurrent tortfeasors. Where several causes producing an injury are concurrent and each is an efficient cause
without which the injury would not have happened, the injury may be attributed to all or any of the causes and recovery may be had against any or all of the
responsible persons although under the circumstances of the case, it may appear that one of them was more culpable, and that the duty owed by them to
the injured person was not the same. No actor’s negligence ceases to be a proximate cause merely because it does not exceed the negligence of other
actors. Each wrongdoer is responsible for the entire result and is liable as though his acts were the sole cause of the injury.

There is no contribution between joint tortfeasors whose liability is solidary since both of them are liable for the total damage. Where the concurrent or
successive negligent acts or omissions of two or more persons, although acting independently, are in combination with the direct and proximate cause of a
single injury to a third person, it is impossible to determine in what proportion each contributed to the injury and either of them is responsible for the whole
injury. Where their concurring negligence resulted in injury or damage to a third party, they become joint tortfeasors and are solidarily liable for the resulting
damage under Article 2194 of the Civil Code. (Underscoring supplied)

All told, all the elements of quasi delict have been proven by clear and convincing evidence. The CA erred in absolving private respondents from
liability for the vehicular collision.
Final Note

It is lamentable that the vehicular collision in this case could have been easily avoided by following basic traffic rules and regulations and road safety
standards. In hindsight, private respondent Limbaga could have prevented the three-way vehicular collision if he had properly parked the prime mover on
the shoulder of the national road. The improper parking of vehicles, most especially along the national highways, poses a serious and unnecessary risk to
the lives and limbs of other motorists and passengers. Drivers owe a duty of care to follow basic traffic rules and regulations and to observe road safety
standards. They owe that duty not only for their own safety, but also for that of other motorists. We can prevent most vehicular accidents by simply following
basic traffic rules and regulations.

We also note a failure of implementation of basic safety standards, particularly the law on early warning devices. This applies even more to trucks and big
vehicles, which are prone to mechanical breakdown on the national highway. The law, as crafted, requires vehicles to be equipped with triangular
reflectorized plates.[32] Vehicles without the required early warning devices are ineligible for registration.[33] Vehicle owners may also be arrested and
fined for non-compliance with the law.[34]

The Land Transportation Office (LTO) owes a duty to the public to ensure that all vehicles on the road meet basic and minimum safety features, including
that of early warning devices. It is most unfortunate that We still see dilapidated and rundown vehicles on the road with substandard safety features. These
vehicles not only pose a hazard to the safety of their occupants but that of other motorists. The prime mover truck in this case should not have been granted
registration because it failed to comply with the minimum safety features required for vehicles on the road.

It is, indeed, time for traffic enforcement agencies and the LTO to strictly enforce all pertinent laws and regulations within their mandate.

WHEREFORE, the petition is GRANTED. The Court of Appeals decision dated August 28, 2003 is hereby SET ASIDE. The RTC decision dated
August 7, 2001 is REINSTATED IN FULL.

SO ORDERED.

BANK OF THE PHILIPPINE G.R. No. 176434 ISLANDS, Petitioner, t:- versus - CARPIO MORALES, TINGA,
VELASCO, JR., and BRION, JJ. LIFETIME MARKETING CORPORATION, Respondent. Promulgated: June 25, 2008
The Bank of the Philippine Islands (BPI) seeks the reversal of the Decision[1] of the Court of Appeals dated 31 July 2006 in CA-G.R. CV No. 62769 which
ordered it to pay Lifetime Marketing Corporation (LMC) actual damages in the amount of P2,075,695.50 on account of its gross negligence in handling LMCs
account.

The following facts, quoted from the decision of the Court of Appeals, are undisputed:

On October 22, 1981, Lifetime Marketing Corporation (LMC, for brevity), opened a current account with the Bank of the Philippine Islands (BPI, for brevity),
Greenhills-Edsa branch, denominated as Account No. 3101-0680-63. In this account, the sales agents of LMC would have to deposit their collections or
payments to the latter. As a result, LMC and BPI, made a special arrangement that the formers agents will accomplish three (3) copies of the deposit slips,
the third copy to be retained and held by the teller until LMCs authorized representatives, Mrs. Virginia Mongon and Mrs. Violeta Ancajas, shall retrieve them
on the following banking day.

Sometime in 1986, LMC availed of the BPIs inter-branch banking network services in Metro Manila, whereby the formers agents could make [a] deposit to
any BPI branch in Metro Manila under the same account. Under this system, BPIs bank tellers were no longer obliged to retain the extra copy of the deposit
slips instead, they will rely on the machine-validated deposit slip, to be submitted by LMCs agents. For its part, BPI would send to LMC a monthly bank
statement relating to the subject account. This practice was observed and complied with by the parties.

As a business practice, the registered sales agents or the Lifetime Educational Consultants of LMC, can get the books from the latter on consignment basis,
then they would go directly to their clients to sell. These agents or Lifetime Educational Consultants would then pay to LMC, seven (7) days after they pick up
all the books to be sold. Since LMC have several agents around the Philippines, it required to remit their payments through BPI, where LMC maintained its
current account. It has been LMCs practice to require its agents to present a validated deposit slip and, on that basis, LMC would issue to the latter an
acknowledgement receipt.
Alice Laurel, is one of LMCs Educational Consultants or agents. On various dates covering the period from May, [sic] 1991 up to August, 1992, Alice Laurel
deposited checks to LMCs subject account at different branches of BPI, specifically: at the Harrison/Buendia branch-8 checks; at Arrangue branch-4 checks;
at Araneta branch-1 check; at Binondo branch-3 checks; at Ermita branch-5 checks; at Cubao Shopping branch-1 check; at Escolta branch-4 checks; at the
Malate branch-2 checks; at Taft Avenue branch-2 checks; at Paseo de Roxas branch-1 check; at J. Ruiz, San Juan branch, at West Avenue and
Commonwealth Quezon City branch- 2 checks; and at Vito Cruz branch-2 checks.

Each check thus deposited were retrieved by Alice Laurel after the deposit slips were machine-validated, except the following thirteen (13) checks, which
bore no machine validation, to wit: CBC Check No. 484004, RCBC Check No. 419818, CBC Check No. 484042, FEBTC Check No. 171857, RCBC Check
No. 419847, CBC Check No. 484053, MBTC Check No. 080726, CBC Check No. 484062, PBC Check No. 158076, CBC Check No. 484027, CBC Check
No. 484017, CBC Check No. 484023 and CBC Check No. 218190.
A verification with BPI by LMC showed that Alice Laurel made check deposits with the named BPI branches and, after the check deposit slips were machine-
validated, requested the teller to reverse the transactions. Based on general banking practices, however, the cancellation of deposit or payment transactions
upon request by any depositor or payor, requires that all copies of the deposit slips must be retrieved or surrendered to the bank. This practice, in effect,
cancels the deposit or payment transaction, thus, it leaves no evidence for any subsequent claim or misrepresentation made by any innocent third person.
Notwithstanding this, the verbal requests of Alice Laurel and her husband to reverse the deposits even after the deposit slips were already received and
consummated were accommodated by BPI tellers.

Alice Laurel presented the machine-validated deposit slips to LMC which, on the strength thereof, considered her account paid. LMC even granted her
certain privileges or prizes based on the deposits she made.

The total aggregate amount covered by Alice Laurels deposit slips was Two Million Seven Hundred Sixty Seven Thousand, Five Hundred Ninety Four Pesos
(P2,767,594.00) and, for which, LMC paid Laurel the total sum of Five Hundred Sixty Thousand Seven Hundred Twenty Six Pesos (P560,726.00) by way of
sales discount and promo prizes.

The above fraudulent transactions of Alice Laurel and her husband was made possible through BPI tellers failure to retrieve the duplicate original copies of
the deposit slips from the former, every time they ask for cancellation or reversal of the deposit or payment transaction.

Upon discovery of this fraud in early August 1992, LMC made queries from the BPI branches involved. In reply to said queries, BPI branch managers
formally admitted that they cancelled, without the permission of or due notice to LMC, the deposit transactions made by Alice and her husband, and based
only upon the latters verbal request or representation.

Thereafter, LMC immediately instituted a criminal action for Estafa against Alice Laurel and her husband Thomas Limoanco, before the Regional Trial Court
of Makati, Branch 65, docketed as Criminal Case No. 93-7970 to 71, entitled People of the Philippines v. Thomas Limoanco and Alice Laurel. This case for
estafa, however, was archived because summons could not be served upon the spouses as they have absconded. Thus, the BPIs apparent reluctance to
admit liability and settle LMCs claim for damages, and a hopeless case of recovery from Alice Laurel and her husband, has left LMC, with no option but to
recover damages from BPI.

On July 24, 1995, LMC, through its representative, Miss Consolacion C. Rogacion, the President of the company, filed a Complaint for Damages against
BPI, docketed as Civil Case No. 95-1106, and was raffled to Regional Trial Court of Makati City, Branch 141.

After trial on the merits, the court a quo rendered a Decision in favor of LMC. The dispositive portion of which reads, as follows:

WHEREFORE, decision is hereby rendered ordering defendant bank to pay plaintiff actual damages equitably reduced to one (1) million pesos plus
attorneys fees of P100,000.00.

No pronouncement as to costs.

SO ORDERED.[2]

Only BPI filed an appeal. The Court of Appeals affirmed the decision of the trial court but increased the award of actual damages to P2,075,695.50 and
deleted the award of P100,000.00 as attorneys fees.[3] Citing public interest, the appellate court denied reconsideration in a Resolution[4] dated 30 January
2007.

In this Petition for Review[5] dated 19 March 2007, BPI insists that LMC should have presented evidence to prove not only the amount of the checks that
were deposited and subsequently reversed, but also the actual delivery of the books and the payment of sales and promo prizes to Alice Laurel. Failing this,
there was allegedly no basis for the award of actual damages. Moreover, the actual damages should not have been increased because the decision of the
trial court became conclusive as regards LMC when it did not appeal the said decision.

BPI further avers that LMCs negligence in considering the machine-validated check deposit slips as evidence of Alice Laurels payment was the proximate
cause of its own loss. Allegedly, by allowing its agents to make deposits with other BPI branches, LMC violated its own special arrangement with BPIs
Greenhills-EDSA branch for the latter to hold on to an extra copy of the deposit slip for pick up by LMCs authorized representatives. BPI points out that the
deposits were in check and not in cash. As such, LMC should have borne in mind that the machine validation in the deposit slips is still subject to the
sufficiency of the funds in the drawers account. Furthermore, LMC allegedly ignored the express notice indicated in its monthly bank statements and
consequently failed to check the accuracy of the transactions reflected therein.

In its Manifestation of Compliance by Respondent on the Order Dated 20 June 2007 Received on 29 July 2007 to Submit Comment,[6] dated 9 August 2007,
LMC insists that it is indeed entitled to the actual damages awarded to it by the appellate court.

BPI filed a Reply[7] dated 15 January 2008, in reiteration of its submissions.

We have repeatedly emphasized that the banking industry is impressed with public interest. Of paramount importance thereto is the trust and confidence of
the public in general. Accordingly, the highest degree of diligence is expected, and high standards of integrity and performance are required of it. By the
nature of its functions, a bank is under obligation to treat the accounts of its depositors with meticulous care, always having in mind the fiduciary nature of its
relationship with them.[8] The fiduciary nature of banking, previously imposed by case law, is now enshrined in Republic Act No. 8791 or the General
Banking Law of 2000. Section 2 thereof specifically says that the state recognizes the fiduciary nature of banking that requires high standards of integrity
and performance.[9]

Whether BPI observed the highest degree of care in handling LMCs account is the subject of the inquiry in this case.

LMC sought recovery from BPI on a cause of action based on tort. Article 2176 of the Civil Code provides, Whoever by act or omission causes damage to
another, there being fault or negligence, is obliged to pay for the damage done. Such fault or negligence if there is no pre-existing contractual relation
between the parties, is called a quasi-delict and is governed by the provisions of this Chapter." There are three elements of quasi-delict: (a) fault or
negligence of the defendant, or some other person for whose acts he must respond; (b) damages suffered by the plaintiff; and (c) the connection of cause
and effect between the fault or negligence of the defendant and the damages incurred by the plaintiff.[10]

In this case, both the trial court and the Court of Appeals found that the reversal of the transactions in question was unilaterally undertaken by BPIs tellers
without following normal banking procedure which requires them to ensure that all copies of the deposit slips are surrendered by the depositor. The machine-
validated deposit slips do not show that the transactions have been cancelled, leading LMC to rely on these slips and to consider Alice Laurels account as
already paid.

Negligence is the omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs,
would do, or the doing of something which a prudent and reasonable man would not do.[11] Negligence in this case lies in the tellers disregard of the
validation procedures in place and BPIs utter failure to supervise its employees. Notably, BPIs managers admitted in several correspondences with LMC that
the deposit transactions were cancelled without LMCs knowledge and consent and based only upon the request of Alice Laurel and her husband.[12]

It is well to reiterate that the degree of diligence required of banks is more than that of a reasonable man or a good father of a family. In view of the fiduciary
nature of their relationship with their depositors, banks are duty-bound to treat the accounts of their clients with the highest degree of care.[13]

BPI cannot escape liability because of LMCs failure to scrutinize the monthly statements sent to it by the bank. This omission does not change the fact that
were it not for the wanton and reckless negligence of BPIs tellers in failing to require the surrender of the machine-validated deposit slips before reversing
the deposit transactions, the loss would not have occurred. BPIs negligence is undoubtedly the proximate cause of the loss. Proximate cause is that cause
which, in a natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury, and without which the result would not have
occurred.[14]

It is also true, however, that LMC should have been more vigilant in managing and overseeing its own financial affairs. The damages awarded to it were
correctly reduced on account of its own contributory negligence in accordance with Article 1172 of the Civil Code.[15]

Parenthetically, we find no merit in BPIs allegation that LMC should have presented evidence of delivery of the books and payment of sales and promo
prizes to Alice Laurel. The evidence presented by LMC in the form of BPIs own admission that the deposit transactions were

reversed at the instance of Alice Laurel and her husband, coupled with the machine-validated deposit slips[16] which were supposed to have been deposited
to LMCs account but were cancelled without its knowledge and consent, sufficiently form the bases for the actual damages claimed because they are the
very same documents relied upon by LMC in considering Alice Laurels account paid and in granting her monetary privileges and prizes.

Be that as it may, we find the appellate courts decision increasing the award of actual damages in favor of LMC improper since the latter did not appeal from
the decision of the trial court. It is well-settled that a party who does not appeal from the decision may not obtain any affirmative relief from the appellate
court other than what he has obtained from the lower court whose decision is brought up on appeal. The exceptions to this rule, such as where there are (1)
errors affecting the lower courts jurisdiction over the subject matter, (2) plain errors not specified, and (3) clerical errors, do not apply in this case.[17]

WHEREFORE, the Decision of the Court of Appeals in CA-G.R. CV No. 62769 dated 31 July 2006 and its Resolution dated January 30, 2007 are
AFFIRMED with the MODIFICATION that the Bank of the Philippine Islands is ordered to pay actual damages to Lifetime

Marketing Corporation in the amount of One Million Pesos (P1,000,000.00). No pronouncement as to costs.

SO ORDERED

G.R. No. 78911-25 December 11, 1987 CHARMINA B. BANAL, petitioner, vs. THE HON. TOMAS V. TADEO, JR.,
Presiding Judge, RTC-Quezon City, Branch 105 and Rosario Claudia respondents.
This is a petition for certiorari to review and set aside the orders of the respondent Regional Trial Court, Branch 105, Quezon City dated (1) 8 January 1987
which rejected the appearance of Atty. Nicolito L. Bustos as private prosecutor in Criminal Cases Nos. Q-40909 to Q-40913 where respondent Rosario
Claudio is the accused for violation of Batas Pambansa Blg. 22; and (2) 31 March 1987 which denied the petitioner's motion for reconsideration of the order
dated 8 January 1987; and for mandamus to allow Atty. Bustos to enter his appearance as private prosecutor in the aforestated criminal cases.

It appears that fifteen (15) separate informations for violation of Batas Pambansa Blg. 22 or the Bouncing Checks Law, docketed as Criminal Cases Nos.
40909-40913, were filed against respondent Claudio before the Regional Trial Court of Quezon City and originally assigned to Branch 84.

The presiding judge of Branch 84 inhibited himself when respondent Claudio, through counsel, filed a petition for recuse dated May 19,1986.

The cases were re-raffled and consequently assigned on June 25, 1986 to Branch 105 which was then presided over by Judge Johnico G. Serquina

During these proceedings, respondent Claudio was finally arraigned on November 20, 1986 where she pleaded not guilty to the charges. Pre-trial was then
set on January 8, 1987.

In the meantime Judge Tomas V. Tadeo, Jr. replaced Judge Serquina as presiding judge of Branch 105.

On January 8, 1987, the respondent court issued an order rejecting the appearance of Atty. Nicolito L. Bustos as private prosecutor on the ground that the
charge is for the violation of Batas Pambansa Blg. 22 which does not provide for any civil liability or indemnity and hence, "it is not a crime against property
but public order."

The petitioner, through counsel filed a motion for reconsideration of the order dated 8 January 1987 on March 10, 1987.

Respondent Claudio filed her opposition to the motion for reconsideration on March 25, 1987.

In an order dated 31 March 1987, the respondent court denied petitioner's motion for reconsideration.
Hence, this petition questioning the orders of the respondent Court.

The issue to be resolved is whether or not the respondent Court acted with grave abuse of discretion or in excess of its jurisdiction in rejecting the
appearance of a private prosecutor.

The respondents make capital of the fact that Batas Pambansa Blg. 22 punishes the act of knowingly issuing worthless checks as an offense against public
order. As such, it is argued that it is the State and the public that are the principal complainants and, therefore, no civil indemnity is provided for by Batas
Pambansa Blg. 22 for which a private party or prosecutor may intervene.

On the other hand, the petitioner, relying on the legal axiom that "Every man criminally liable is also civilly liable," contends that indemnity may be recovered
from the offender regardless of whether or not Batas Pambansa Blg. 22 so provides.

A careful study of the concept of civil liability allows a solution to the issue in the case at bar.

Generally, the basis of civil liability arising from crime is the fundamental postulate of our law that "Every man criminally liable is also civilly liable" (Art. 100,
The Revised Penal Code). Underlying this legal principle is the traditional theory that when a person commits a crime he offends two entities namely ( 1) the
society in which he lives in or the political entity called the State whose law he had violated; and (2) the individual member of that society whose person,
right, honor, chastity or property was actually or directly injured or damaged by the same punishable act or omission. However, this rather broad and general
provision is among the most complex and controversial topics in criminal procedure. It can be misleading in its implications especially where the same act or
omission may be treated as a crime in one instance and as a tort in another or where the law allows a separate civil action to proceed independently of the
course of the criminal prosecution with which it is intimately intertwined. Many legal scholars treat as a misconception or fallacy the generally accepted
notion that, the civil liability actually arises from the crime when, in the ultimate analysis, it does not. While an act or omission is felonious because it is
punishable by law, it gives rise to civil liability not so much because it is a crime but because it caused damage to another. Viewing things pragmatically, we
can readily see that what gives rise to the civil liability is really the obligation and the moral duty of everyone to repair or make whole the damage caused to
another by reason of his own act or omission, done intentionally or negligently, whether or not the same be punishable by law. In other words, criminal
liability will give rise to civil liability only if the same felonious act or omission results in damage or injury to another and is the direct and proximate cause
thereof. Damage or injury to another is evidently the foundation of the civil action. Such is not the case in criminal actions for, to be criminally liable, it is
enough that the act or omission complained of is punishable, regardless of whether or not it also causes material damage to another. (See Sangco,
Philippine Law on Torts and Damages, 1978, Revised Edition, pp. 246-247).

Article 20 of the New Civil Code provides:

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

Regardless, therefore, of whether or not a special law so provides, indemnification of the offended party may be had on account of the damage, loss or injury
directly suffered as a consequence of the wrongful act of another. The indemnity which a person is sentenced to pay forms an integral part of the penalty
imposed by law for the commission of a crime (Quemel v. Court of Appeals, 22 SCRA 44, citing Bagtas v. Director of Prisons, 84 Phil. 692). Every crime
gives rise to a penal or criminal action for the punishment of the guilty party, and also to civil action for the restitution of the thing, repair of the damage, and
indemnification for the losses. (United States v. Bernardo, 19 Phil. 265).

Indeed one cannot disregard the private party in the case at bar who suffered the offenses committed against her. Not only the State but the petitioner too is
entitled to relief as a member of the public which the law seeks to protect. She was assured that the checks were good when she parted with money,
property or services. She suffered with the State when the checks bounced.

In Lozano v. Hon. Martinez (G.R. No. 63419, December 18, 1986) and the cases consolidated therewith, we held that "The effects of a worthless check
transcend the private interests of the parties directly involved in the transaction and touch the interests of the community at large." Yet, we too recognized the
wrong done to the private party defrauded when we stated therein that "The mischief it creates is not only a wrong to the payee or the holder, but also an
injury to the public."

Civil liability to the offended private party cannot thus be denied, The payee of the check is entitled to receive the payment of money for which the worthless
check was issued. Having been caused the damage, she is entitled to recompense.

Surely, it could not have been the intendment of the framers of Batas Pambansa Big. 22 to leave the offended private party defrauded and empty- handed by
excluding the civil liability of the offender, giving her only the remedy, which in many cases results in a Pyrrhic victory, of having to file a separate civil suit. To
do so, may leave the offended party unable to recover even the face value of the check due her, thereby unjustly enriching the errant drawer at the expense
of the payee. The protection which the law seeks to provide would, therefore, be brought to naught.
The petitioner's intervention in the prosecution of Criminal Cases 40909 to 40913 is justified not only for the protection of her interests but also in the interest
of the speedy and inexpensive administration of justice mandated by the Constitution (Section 16, Article III, Bill of Rights, Constitution of 1987). A separate
civil action for the purpose would only prove to be costly, burdensome, and time-consuming for both parties and further delay the final disposition of the case.
This multiplicity of suits must be avoided. Where petitioner's rights may be fulIy adjudicated in the proceedings before the trial court, resort t o a separate
action to recover civil liability is clearly unwarranted.

WHEREFORE the petition is hereby GRANTED. The respondent court is ordered to permit the intervention of a private prosecutor in behalf of petitioner
Charmina B. Banal, in the prosecution of the civil aspect of Criminasl Cases Nos. 40909 to 40913. The temporary restraining order issued by this court a quo
for further proceedings. This decision is immediately executory.

G.R. No. L-48006 July 8, 1942 FAUSTO BARREDO, petitioner, Vs. SEVERINO GARCIA and TIMOTEA ALMARIO,
respondents.
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 daño 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 Española" (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 atañen 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 daños 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
añadidura, abstenido de asistir al juicio criminal la Compañia del Ferrocarril Cantabrico, que se reservo ejercitar sus acciones, parece innegable que la de
indemnizacion por los daños 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, extraña 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 Compaña 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 dueño
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 daño, la ley presume que el padre, el tutor, el maestro, etc., han cometido una falta de negligencia para prevenir o
evitar el daño. 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 Español," 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 "compañia Electric Madrileña 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 compañia Electrica Madrileña
al pago del daño 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 daños 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 compañia recurrente a la indemnizacion del daño 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 Compañia Madrileña 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.º, que las expediciones
facturadas por la compañia 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.º, 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.º, que la falta de entrega de estas expediciones al tiempo de reclamarlas el demandante le
originaron daños 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 daños 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 Compañia 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.

SAFEGUARD SECURITY G.R. NO. 165732 AGENCY, INC., and ADMER PAJARILLO, Petitioners, Present:- versus -
AUSTRIA-MARTINEZ,
CALLEJO, SR., and CHICO-NAZARIO, JJ. LAURO TANGCO, VAL TANGCO, VERN LARRY TANGCO, VAN LAURO
TANGCO, VON LARRIE TANGCO, VIEN LARI TANGCO and VIVIEN LAURIZ TANGCO, Promulgated: Respondents.
December 14, 2006

Before us is a petition for review on certiorari filed by Safeguard Security Agency, Inc. (Safeguard) and Admer Pajarillo (Pajarillo) assailing the Decision[1]
dated July 16, 2004 and the Resolution[2] dated October 20, 2004 issued by the Court of Appeals (CA) in CA-G.R. CV No. 77462.
On November 3, 1997, at about 2:50 p.m., Evangeline Tangco (Evangeline) went to Ecology Bank, Katipunan Branch, Quezon City, to renew her time
deposit per advise of the banks cashier as she would sign a specimen card. Evangeline, a duly licensed firearm holder with corresponding permit to carry the
same outside her residence, approached security guard Pajarillo, who was stationed outside the bank, and pulled out her firearm from her bag to deposit the
same for safekeeping. Suddenly, Pajarillo shot Evangeline with his service shotgun hitting her in the abdomen instantly causing her death.

Lauro Tangco, Evangelines husband, together with his six minor children (respondents) filed with the Regional Trial Court (RTC) of Quezon City, a criminal
case of Homicide against Pajarillo, docketed as Criminal Case No. 0-97-73806 and assigned to Branch 78. Respondents reserved their right to file a
separate civil action in the said criminal case. The RTC of Quezon City subsequently convicted Pajarillo of Homicide in its Decision dated January 19, 2000.
[3] On appeal to the CA, the RTC decision was affirmed with modification as to the penalty in a Decision[4] dated July 31, 2000. Entry of Judgment was
made on August 25, 2001.

Meanwhile, on January 14, 1998, respondents filed with RTC, Branch 273, Marikina City, a complaint[5] for damages against Pajarillo for negligently
shooting Evangeline and against Safeguard for failing to observe the diligence of a good father of a family to prevent the damage committed by its security
guard. Respondents prayed for actual, moral and exemplary damages and attorneys fees.

In their Answer,[6] petitioners denied the material allegations in the complaint and alleged that Safeguard exercised the diligence of a good father of a family
in the selection and supervision of Pajarillo; that Evangelines death was not due to Pajarillos negligence as the latter acted only in self-defense. Petitioners
set up a compulsory counterclaim for moral damages and attorneys fees.

Trial thereafter ensued. On January 10, 2003, the RTC rendered its Decision,[7] the dispositive portion of which reads:

WHEREFORE, judgment is hereby rendered in favor of the plaintiffs, the heirs of Evangeline Tangco, and against defendants Admer Pajarillo and Safeguard
Security Agency, Inc. ordering said defendants to pay the plaintiffs, jointly and severally, the following:

1. ONE HUNDRED FIFTY SEVEN THOUSAND FOUR HUNDRED THIRTY PESOS (P157,430.00), as actual damages
2. FIFTY THOUSAND PESOS (P50,000.00) as death indemnity;
3. ONE MILLION PESOS (P1,000,000.00), as moral damages;
4. THREE HUNDRED THOUSAND PESOS (P300,000.00), as exemplary damages;
5. THIRTY THOUSAND PESOS (P30,000.00), as attorneys fees; and
6. costs of suit.

For lack of merit, defendants counterclaim is hereby DISMISSED.

SO ORDERED. [8]

The RTC found respondents to be entitled to damages. It rejected Pajarillos claim that he merely acted in self-defense. It gave no credence to Pajarillos
bare claim that Evangeline was seen roaming around the area prior to the shooting incident since Pajarillo had not made such report to the head office and
the police authorities. The RTC further ruled that being the guard on duty, the situation demanded that he should have exercised proper prudence and
necessary care by asking Evangeline for him to ascertain the matter instead of shooting her instantly; that Pajarillo had already been convicted of Homicide
in Criminal Case No. 0-97-73806; and that he also failed to proffer proof negating liability in the instant case.

The RTC also found Safeguard as employer of Pajarillo to be jointly and severally liable with Pajarillo. It ruled that while it may be conceded that Safeguard
had perhaps exercised care in the selection of its employees, particularly of Pajarillo, there was no sufficient evidence to show that Safeguard exercised the
diligence of a good father of a family in the supervision of its employee; that Safeguards evidence simply showed that it required its guards to attend
trainings and seminars which is not the supervision contemplated under the law; that supervision includes not only the issuance of regulations and
instructions designed for the protection of persons and property, for the guidance of their servants and employees, but also the duty to see to it that such
regulations and instructions are faithfully complied with.

Petitioners appealed the RTC decision to the CA. On July 16, 2004, the CA issued its assailed Decision, the dispositive portion of which reads:

IN VIEW OF ALL THE FOREGOING, the appealed decision is hereby AFFIRMED, with the modification that Safeguard Security Agency, Inc.s civil liability in
this case is only subsidiary under Art. 103 of the Revised Penal Code. No pronouncement as to costs.[9]

In finding that Safeguard is only subsidiarily liable, the CA held that the applicable provisions are not Article 2180 in relation to Article 2176 of the Civil Code,
on quasi-delicts, but the provisions on civil liability arising from felonies under the Revised Penal Code; that since Pajarillo had been found guilty of Homicide
in a final and executory judgment and is said to be serving sentence in Muntinlupa, he must be adjudged civilly liable under the provisions of Article 100 of
the Revised Penal Code since the civil liability recoverable in the criminal action is one solely dependent upon conviction, because said liability arises from
the offense charged and no other; that this is also the civil liability that is deemed extinguished with the extinction of the penal liability with a pronouncement
that the fact from which the civil action might proceed does not exist; that unlike in civil liability arising from quasi-delict, the defense of diligence of a good
father of a family in the employment and supervision of employees is inapplicable and irrelevant in civil liabilities based on crimes or ex-delicto; that Article
103 of the Revised Penal Code provides that the liability of an employer for the civil liability of their employees is only subsidiary, not joint or solidary.

Petitioners filed their Motion for Reconsideration which the CA denied in a Resolution dated October 20, 2004.

Hence, the instant Petition for Review on Certiorari with the following assignment of errors, to wit:

The Honorable Court of Appeals gravely erred in finding petitioner Pajarillo liable to respondents for the payment of damages and other money claims.

The Honorable Court of Appeals gravely erred when it applied Article 103 of the Revised Penal Code in holding petitioner Safeguard solidarily [sic] liable with
petitioner Pajarillo for the payment of damages and other money claims.

The Honorable Court of Appeals gravely erred in failing to find that petitioner Safeguard Security Agency, Inc. exercised due diligence in the selection and
supervision of its employees, hence, should be excused from any liability.[10]
 The issues for resolution are whether (1) Pajarillo is guilty of negligence in shooting Evangeline; and (2) Safeguard should be held solidarily liable for the
damages awarded to respondents.

Safeguard insists that the claim for damages by respondents is based on culpa aquiliana under Article 2176[11] of the Civil Code, in which case, its liability is
jointly and severally with Pajarillo. However, since it has established that it had exercised due diligence in the selection and supervision of Pajarillo, it should
be exonerated from civil liability.

We will first resolve whether the CA correctly held that respondents, in filing a separate civil action against petitioners are limited to the recovery of damages
arising from a crime or delict, in which case the liability of Safeguard as employer under Articles 102 and 103 of the Revised Penal Code[12] is subsidiary
and the defense of due diligence in the selection and supervision of employee is not available to it.

The CA erred in ruling that the liability of Safeguard is only subsidiary.

The law at the time the complaint for damages was filed is Rule 111 of the 1985 Rules on Criminal Procedure, as amended, to wit:

SECTION 1. Institution of criminal and civil actions. - When a criminal action is instituted, the civil action for the recovery of civil

liability is impliedly instituted with the criminal action, unless the offended party waives the civil action, reserves his right to institute it separately, or institutes
the civil action prior to the criminal action.

Such civil action includes recovery of indemnity under the Revised Penal Code, and damages under Articles 32, 33, 34, and 2176 of the Civil Code of the
Philippines arising from the same act or omission of the accused.

Respondents reserved the right to file a separate civil action and in fact filed the same on January 14, 1998.

The CA found that the source of damages in the instant case must be the crime of homicide, for which he had already been found guilty of and serving
sentence thereof, thus must be governed by the Revised Penal Code.

We do not agree.

An act or omission causing damage to another may give rise to two separate civil liabilities on the part of the offender, i.e., (1) civil liability ex delicto, under
Article 100 of the Revised Penal Code; and (2) independent civil liabilities, such as those (a) not arising from an act or omission complained of as a felony,
e.g., culpa contractual or obligations arising from law under Article 31 of the Civil Code, intentional torts under Articles 32 and 34, and culpa aquiliana under
Article 2176 of the Civil Code; or (b) where the injured party is granted a right to file an action independent and distinct from the criminal action under Article
33 of the Civil Code. Either of these liabilities may be enforced against the offender subject to the caveat under Article 2177 of the Civil Code that the
offended party cannot recover damages twice for the same act or omission or under both causes.[13]

It is important to determine the nature of respondents cause of action. The nature of a cause of action is determined by the facts alleged in the complaint as
constituting the cause of action.[14] The purpose of an action or suit and the law to govern it is to be determined not by the claim of the party filing the action,
made in his argument or brief, but rather by the complaint itself, its allegations and prayer for relief.[15]

The pertinent portions of the complaint read:

7. That Defendant Admer A. Pajarillo was the guard assigned and posted in the Ecology Bank Katipunan Branch, Quezon City, who was employed and
under employment of Safeguard Security Agency, Inc. hence there is employer-employee relationship between co-defendants.

The Safeguard Security Agency, Inc. failed to observe the diligence of a good father of a family to prevent damage to herein plaintiffs.

8. That defendant Admer Pajarillo upon seeing Evangeline Tangco, who brought her firearm out of her bag, suddenly without exercising necessary
caution/care, and in idiotic manner, with the use of his shotgun, fired and burst bullets upon Evangeline M. Tangco, killing her instantly. x x x

xxxx

16. That defendants, being employer and the employee are jointly and severally liable for the death of Evangeline M. Tangco.[16]

Thus, a reading of respondents complaint shows that the latter are invoking their right to recover damages against Safeguard for their vicarious
responsibility for the injury caused by Pajarillos act of shooting and killing Evangeline under Article 2176, Civil Code which provides:

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

The scope of Article 2176 is not limited to acts or omissions resulting from negligence. In Dulay v. Court of Appeals,[17] we held:

x x x Well-entrenched is the doctrine that Article 2176 covers not only acts committed with negligence, but also acts which are voluntary and intentional. As
far back as the definitive case of Elcano v. Hill (77 SCRA 98 [1977]), this Court already held that:

"x x x Article 2176, where it refers to "fault or negligence," covers not only acts "not punishable by law" but also acts criminal in character, whether intentional
and voluntary or negligent. Consequently, a separate civil action lies against the offender in a criminal act, whether or not he is criminally prosecuted and
found guilty or acquitted, provided that the offended party is not allowed, if he is actually charged also criminally, to recover damages on both scores, and
would be entitled in such eventuality only to the bigger award of the two, assuming the awards made in the two cases vary. In other words, the extinction of
civil liability referred to in Par. (e) of Section 3, Rule 111, refers exclusively to civil liability founded on Article 100 of the Revised Penal Code, whereas the civil
liability for the same act considered as quasi-delict only and not as a crime is not extinguished even by a declaration in the criminal case that the criminal act
charged has not happened or has not been committed by the accused. Briefly stated, We here hold, in reiteration of Garcia, that culpa aquiliana includes
voluntary and negligent acts which may be punishable by law." (Emphasis supplied)
The civil action filed by respondents was not derived from the criminal liability of Pajarillo in the criminal case but one based on culpa aquiliana or quasi-delict
which is separate and distinct from the civil liability arising from crime.[18] The source of the obligation sought to be enforced in the civil case is a quasi-delict
not an act or omission punishable by law.

In Bermudez v. Melencio-Herrera,[19] where the issue involved was whether the civil action filed by plaintiff-appellants is founded on crime or on quasi-delict,
we held:

x x x The trial court treated the case as an action based on a crime in view of the reservation made by the offended party in the criminal case (Criminal Case
No. 92944), also pending before the court, to file a separate civil action. Said the trial court:

It would appear that plaintiffs instituted this action on the assumption that defendant Pontino's negligence in the accident of May 10, 1969 constituted a
quasi-delict. The Court cannot accept the validity of that assumption. In Criminal Case No. 92944 of this Court, plaintiffs had already appeared as
complainants. While that case was pending, the offended parties reserved the right to institute a separate civil action. If, in a criminal case, the right to file a
separate civil action for damages is reserved, such civil action is to be based on crime and not on tort. That was the ruling in Joaquin vs. Aniceto, L-18719,
Oct. 31, 1964.

We do not agree. The doctrine in the case cited by the trial court is inapplicable to the instant case x x x.

xxxx

In cases of negligence, the injured party or his heirs has the choice between an action to enforce the civil liability arising from crime under Article 100 of the
Revised Penal Code and an action for quasi-delict under Article 2176-2194 of the Civil Code. If a party chooses the latter, he may hold the employer
solidarily liable for the negligent act of his employee, subject to the employer's defense of exercise of the diligence of a good father of the family.

In the case at bar, the action filed by appellant was an action for damages based on quasi-delict. The fact that appellants reserved their right in the criminal
case to file an independent civil action did not preclude them from choosing to file a civil action for quasi-delict.[20] (Emphasis supplied)

Although the judgment in the criminal case finding Pajarillo guilty of Homicide is already final and executory, such judgment has no relevance or importance
to this case.[21] It would have been entirely different if respondents cause of action was for damages arising from a delict, in which case the CA is correct in
finding Safeguard to be only subsidiary liable pursuant to Article 103 of the Revised Penal Code.[22]

As clearly shown by the allegations in the complaint, respondents cause of action is based on quasi-delict. Under Article 2180 of the Civil Code, when the
injury is caused by the negligence of the employee, there instantly arises a presumption of law that there was negligence on the part of the master or the
employer either in the selection of the servant or employee, or in the supervision over him after selection or both. The liability of the employer under Article
2180 is direct and immediate. Therefore, it is incumbent upon petitioners to prove that they exercised the diligence of a good father of a family in the
selection and supervision of their employee.

We must first resolve the issue of whether Pajarillo was negligent in shooting Evangeline.

The issue of negligence is factual in nature. Whether a person is negligent or not is a question of fact, which, as a general rule, we cannot pass upon in a
petition for review on certiorari, as our jurisdiction is limited to reviewing errors of law.[23] Generally, factual findings of the trial court, affirmed by the CA, are
final and conclusive and may not be reviewed on appeal. The established exceptions are: (1) when the inference made is manifestly mistaken, absurd or
impossible; (2) when there is grave abuse of discretion; (3) when the findings are grounded entirely on speculations, surmises or conjectures; (4) when the
judgment of the CA is based on misapprehension of facts; (5) when the findings of fact are conflicting; (6) when the CA, in making its findings, went beyond
the issues of the case and the same is contrary to the admissions of both appellant and appellee; (7) when the findings of fact are conclusions without
citation of specific evidence on which they are based; (8) when the CA manifestly overlooked certain relevant facts not disputed by the parties and which, if
properly considered, would justify a different conclusion; and (9) when the findings of fact of the CA are premised on the absence of evidence and are
contradicted by the evidence on record. [24]

A thorough review of the records of the case fails to show any cogent reason for us to deviate from the factual finding of the trial court and affirmed by the
CA that petitioner Pajarillo was guilty of negligence in shooting Evangeline.

Respondents evidence established that Evangelines purpose in going to the bank was to renew her time deposit.[25] On the other hand, Pajarillo claims
that Evangeline drew a gun from her bag and aimed the same at him, thus, acting instinctively, he shot her in self-defense.

Pajarillo testified that when Evangeline aimed the gun at him at a distance of about one meter or one arms length[26] he stepped backward, loaded the
chamber of his gun and shot her.[27] It is however unimaginable that petitioner Pajarillo could still make such movements if indeed the gun was already
pointed at him. Any movement could have prompted Evangeline to pull the trigger to shoot him.
Petitioner Pajarillo would like to justify his action in shooting Evangeline on his mere apprehension that Evangeline will stage a bank robbery. However, such
claim is befuddled by his own testimony. Pajarillo testified that prior to the incident, he saw Evangeline roaming under the fly over which was about 10 meters
away from the bank[28] and saw her talking to a man thereat;[29] that she left the man under the fly-over, crossed the street and approached the bank.
However, except for the bare testimony of Pajarillo, the records do not show that indeed Evangeline was seen roaming near the vicinity of the bank and
acting suspiciously prior to the shooting incident. In fact, there is no evidence that Pajarillo called the attention of his head guard or the banks branch
manager regarding his concerns or that he reported the same to the police authorities whose outpost is just about 15 meters from the bank.

Moreover, if Evangeline was already roaming the vicinity of the bank, she could have already apprised herself that Pajarillo, who was posted outside the
bank, was armed with a shotgun; that there were two guards inside the bank[30] manning the entrance door. Thus, it is quite incredible that if she really had
a companion, she would leave him under the fly-over which is 10 meters far from the bank and stage a bank robbery all by herself without a back-up. In fact,
she would have known, after surveying the area, that aiming her gun at Pajarillo would not ensure entrance to the bank as there were guards manning the
entrance door.

Evidence, to be believed, must not only proceed from the mouth of a credible witness, but it must be credible in itself such as the common experience and
observation of mankind can approve as probable under the circumstances. We have no test of the truth of human testimony, except its conformity to our
knowledge, observation and experience. Whatever is repugnant to these belongs to the miraculous and is outside judicial cognizance.[31]
 That Evangeline just wanted to deposit her gun before entering the bank and was actually in the act of pulling her gun from her bag when petitioner Pajarillo
recklessly shot her, finds support from the contentions raised in petitioners petition for review where they argued that when Evangeline approached the bank,
she was seen pulling a gun from inside her bag and petitioner Pajarillo who was suddenly beset by fear and perceived the act as a dangerous threat, shot
and killed the deceased out of pure instinct;[32] that the act of drawing a gun is a threatening act, regardless of whether or not the gun was intended to be
used against petitioner Pajarillo;[33] that the fear that was created in the mind of petitioner Pajarillo as he saw Evangeline Tangco drawing a gun from her
purse was suddenly very real and the former merely reacted out of pure self-preservation.[34]

Considering that unlawful aggression on the part of Evangeline is absent, Pajarillos claim of self-defense cannot be accepted specially when such claim was
uncorroborated by any separate competent evidence other than his testimony which was even doubtful. Pajarillos apprehension that Evangeline will shoot
him to stage a bank robbery has no basis at all. It is therefore clear that the alleged threat of bank robbery was just a figment of Pajarillos imagination which
caused such unfounded unlawful aggression on his part.

Petitioners argue that Evangeline was guilty of contributory negligence. Although she was a licensed firearm holder, she had no business bringing the gun in
such establishment where people would react instinctively upon seeing the gun; that had Evangeline been prudent, she could have warned Pajarillo before
drawing the gun and did not conduct herself with suspicion by roaming outside the vicinity of the bank; that she should not have held the gun with the nozzle
pointed at Pajarillo who mistook the act as hold up or robbery.

We are not persuaded.

As we have earlier held, Pajarillo failed to substantiate his claim that Evangeline was seen roaming outside the vicinity of the bank and acting suspiciously
prior to the shooting incident. Evangelines death was merely due to Pajarillos negligence in shooting her on his imagined threat that Evangeline will rob the
bank.

Safeguard contends that it cannot be jointly held liable since it had adequately shown that it had exercised the diligence required in the selection and
supervision of its employees. It claims that it had required the guards to undergo the necessary training and to submit the requisite qualifications and
credentials which even the RTC found to have been complied with; that the RTC erroneously found that it did not exercise the diligence required in the
supervision of its employee. Safeguard further claims that it conducts monitoring of the activities of its personnel, wherein supervisors are assigned to
routinely check the activities of the security guards which include among others, whether or not they are in their proper post and with proper equipment, as
well as regular evaluations of the employees performances; that the fact that Pajarillo loaded his firearm contrary to Safeguards operating procedure is not
sufficient basis to say that Safeguard had failed its duty of proper supervision; that it was likewise error to say that Safeguard was negligent in seeing to it
that the procedures and policies were not properly implemented by reason of one unfortunate event.

We are not convinced.

Article 2180 of the Civil Code provides:

Art. 2180. The obligation imposed by Article 2176 is demandable not only for ones own acts or omissions, but also for those of persons for whom one is
responsible.
xxxx

Employers shall be liable for the damages caused by their employees and household helpers acting within the scope of their assigned tasks, even though
the former are not engaged in any business or industry.

xxxx
The responsibility treated of in this article shall cease when the persons herein mentioned prove that they observed all the diligence of a good father of a
family to prevent damage.

As the employer of Pajarillo, Safeguard is primarily and solidarily liable for the quasi-delict committed by the former. Safeguard is presumed to be negligent
in the selection and supervision of his employee by operation of law. This presumption may be overcome only by satisfactorily showing that the employer
exercised the care and the diligence of a good father of a family in the selection and the supervision of its employee.

In the selection of prospective employees, employers are required to examine them as to their qualifications, experience, and service records.[35] On the
other hand, due diligence in the supervision of employees includes the formulation of suitable rules and regulations for the guidance of employees and the
issuance of proper instructions intended for the protection of the public and persons with whom the employer has relations through his or its employees and
the imposition of necessary disciplinary measures upon employees in case of breach or as may be warranted to ensure the performance of acts
indispensable to the business of and beneficial to their employer. To this, we add that actual implementation and monitoring of consistent compliance with
said rules should be the constant concern of the employer, acting through dependable supervisors who should regularly report on their supervisory functions.
[36] To establish these factors in a trial involving the issue of vicarious liability, employers must submit concrete proof, including documentary evidence.

We agree with the RTCs finding that Safeguard had exercised the diligence in the selection of Pajarillo since the record shows that Pajarillo underwent a
psychological and neuro-psychiatric evaluation conducted by the St. Martin de Porres Center where no psychoses ideations were noted, submitted a
certification on the Pre-licensing training course for security guards, as well as police and NBI clearances.

The RTC did not err in ruling that Safeguard fell short of the diligence required in the supervision of its employee, particularly Pajarillo. In this case, while
Safeguard presented Capt. James Camero, its Director for Operations, who testified on the issuance of company rules and regulations, such as the
Guidelines of Guards Who Will Be Assigned To Banks,[37] Weapons Training,[38] Safeguard Training Center Marksmanship Training Lesson Plan,[39]
Disciplinary/Corrective Sanctions,[40] it had also been established during Cameros cross-examination that Pajarillo was not aware of such rules and
regulations.[41] Notwithstanding Cameros clarification on his re-direct examination that these company rules and regulations are lesson plans as a basis of
guidelines of the instructors during classroom instructions and not necessary to give students copy of the same,[42] the records do not show that Pajarillo
had attended such classroom instructions.

The records also failed to show that there was adequate training and continuous evaluation of the security guards performance. Pajarillo had only attended
an in-service training on March 1, 1997 conducted by Toyota Sta. Rosa, his first assignment as security guard of Safeguard, which was in collaboration with
Safeguard. It was established that the concept of such training was purely on security of equipments to be guarded and protection of the life of the
employees.[43]
 It had not been established that after Pajarillos training in Toyota, Safeguard had ever conducted further training of Pajarillo when he was later assigned to
guard a bank which has a different nature of business with that of Toyota. In fact, Pajarillo testified that being on duty in a bank is different from being on duty
in a factory since a bank is a very sensitive area.[44]

Moreover, considering his reactions to Evangelines act of just depositing her firearm for safekeeping, i.e., of immediately shooting her, confirms that there
was no training or seminar given on how to handle bank clients and on human psychology.

Furthermore, while Safeguard would like to show that there were inspectors who go around the bank two times a day to see the daily performance of the
security guards assigned therein, there was no record ever presented of such daily inspections. In fact, if there was really such inspection made, the alleged
suspicious act of Evangeline could have been taken noticed and reported.

Turning now to the award of damages, we find that the award of actual damages in the amount P157,430.00 which were the expenses incurred by
respondents in connection with the burial of Evangeline were supported by receipts. The award of P50,000.00 as civil indemnity for the death of Evangeline
is likewise in order.

As to the award of moral damages, Article 2206 of the Civil Code provides that the spouse, legitimate children and illegitimate descendants and ascendants
of the deceased may demand moral damages for mental anguish by reason of the death of the deceased. Moral damages are awarded to enable the injured
party to obtain means, diversions or amusements that will serve to alleviate the moral suffering he/she has undergone, by reason of the defendants culpable
action. Its award is aimed at restoration, as much as possible, of the spiritual status quo ante; thus it must be proportionate to the suffering inflicted.[45] The
intensity of the pain experienced by the relatives of the victim is proportionate to the intensity of affection for him and bears no relation whatsoever with the
wealth or means of the offender.[46]

In this case, respondents testified as to their moral suffering caused by Evangelines death was so sudden causing respondent Lauro to lose a wife and a
mother to six children who were all minors at the time of her death. In People v. Teehankee, Jr.,[47] we awarded one million pesos as moral damages to the
heirs of a seventeen-year-old girl who was murdered. In Metro Manila Transit Corporation v. Court of Appeals,[48] we likewise awarded the amount of one
million pesos as moral damages to the parents of a third year high school student and who was also their youngest child who died in a vehicular accident
since the girls death left a void in their lives. Hence, we hold that the respondents are also entitled to the amount of one million pesos as Evangelines death
left a void in the lives of her husband and minor children as they were deprived of her love and care by her untimely demise.

We likewise uphold the award of exemplary damages in the amount of P300,000.00. Under Article 2229 of the Civil Code, exemplary damages are imposed
by way of example or correction for the public good, in addition to moral, temperate, liquidated or compensatory damages.[49] It is awarded as a deterrent to
socially deleterious actions. In quasi-delict, exemplary damages may be granted if the defendant acted with gross negligence.[50]

Pursuant to Article 2208 of the Civil Code, attorney's fees may be recovered when, as in the instant case, exemplary damages are awarded. Hence, we
affirm the award of attorney's fees in the amount of P30,000.00.

WHEREFORE, the petition for review is DENIED. The Decision dated July 16, 2004 of the Court of Appeals is AFFIRMED with MODIFICATION that the civil
liability of petitioner Safeguard Security Agency, Inc. is SOLIDARY and PRIMARY under Article 2180 of the Civil Code.

SO ORDERED.

G.R. No. L-24803 May 26, 1977 PEDRO ELCANO and PATRICIA ELCANO, in their capacity as Ascendants of
Agapito Elcano, deceased, plaintiffs-appellants, vs. REGINALD HILL, minor, and MARVIN HILL, as father and
Natural Guardian of said minor, defendants-appellees.

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

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

1. The present action is not only against but a violation of section 1, Rule 107, which is now Rule III, of the Revised Rules of Court;

2. The action is barred by a prior judgment which is now final and or in res-adjudicata;

3. The complaint had no cause of action against defendant Marvin Hill, because he was relieved as guardian of the other defendant through
emancipation by marriage.

(P. 23, Record [p. 4, Record on Appeal.])

was first denied by the trial court. It was only upon motion for reconsideration of the defendants of such denial, reiterating the above grounds that the
following order was issued:

Considering the motion for reconsideration filed by the defendants on January 14, 1965 and after thoroughly examining the arguments therein contained, the
Court finds the same to be meritorious and well-founded.

WHEREFORE, the Order of this Court on December 8, 1964 is hereby reconsidered by ordering the dismissal of the above entitled case.

SO ORDERED.

Quezon City, Philippines, January 29, 1965. (p. 40, Record [p. 21, Record on Appeal.)
Hence, this appeal where plaintiffs-appellants, the spouses Elcano, are presenting for Our resolution the following assignment of errors:

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

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

II
THE ACTION IS BARRED BY A PRIOR JUDGMENT WHICH IS NOW FINAL OR RES-ADJUDICTA;

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

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

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

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

1. Is the present civil action for damages barred by the acquittal of Reginald in the criminal case wherein the action for civil liability, was not reversed?

2. May Article 2180 (2nd and last paragraphs) of the Civil Code he applied against Atty. Hill, notwithstanding the undisputed fact that at the time of the
occurrence complained of. Reginald, though a minor, living with and getting subsistenee from his father, was already legally married?

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

The, above case is pertinent because it shows that the same act machinist. come under both the Penal Code and the Civil Code. In that case, the action of
the agent killeth unjustified and fraudulent and therefore could have been the subject of a criminal action. And yet, it was held to be also a proper subject of a
civil action under article 1902 of the Civil Code. It is also to be noted that it was the employer and not the employee who was being sued. (pp. 615-616, 73
Phil.). 1

It will be noticed that the defendant in the above case could have been prosecuted in a criminal case because his negligence causing the death of the child
was punishable by the Penal Code. Here is therefore a clear instance of the same act of negligence being a proper subject matter either of a criminal action
with its consequent civil liability arising from a crime or of an entirely separate and independent civil action for fault or negligence under article 1902 of the
Civil Code. Thus, in this jurisdiction, the separate individuality of a cuasi-delito or culpa aquiliana, under the Civil Code has been fully and clearly recognized,
even with regard to a negligent act for which the wrongdoer could have been prosecuted and convicted in a criminal case and for which, after such a
conviction, he could have been sued for this civil liability arising from his crime. (p. 617, 73 Phil.) 2

It is most significant that in the case just cited, this Court specifically applied article 1902 of the Civil Code. It is thus that although J. V. House could have
been criminally prosecuted for reckless or simple negligence and not only punished but also made civilly liable because of his criminal negligence,
nevertheless this Court awarded damages in an independent civil action for fault or negligence under article 1902 of the Civil Code. (p. 618, 73 Phil.) 3

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

Firstly, the Revised Penal Code in articles 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, accordingly 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 Idemnified 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.

Secondary, 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 Idemnified remedium." (p. 620,73 Phil.)

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 harms 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 or
private rights because it realtor, 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. (p. 621, 73 Phil.)

Contrary to an immediate impression one might get upon a reading of the foregoing excerpts from the opinion in Garcia that the concurrence of the Penal
Code and the Civil Code therein referred to contemplate only acts of negligence and not intentional voluntary acts - deeper reflection would reveal that the
thrust of the pronouncements therein is not so limited, but that in fact it actually extends to fault or culpa. This can be seen in the reference made therein to
the Sentence of the Supreme Court of Spain of February 14, 1919, supra, which involved a case of fraud or estafa, not a negligent act. Indeed, Article 1093
of the Civil Code of Spain, in force here at the time of Garcia, provided textually that obligations "which are derived from acts or omissions in which fault or
negligence, not punishable by law, intervene shall be the subject of Chapter II, Title XV of this book (which refers to quasi-delicts.)" And it is precisely the
underline qualification, "not punishable by law", that Justice Bocobo emphasized could lead to an ultimo construction or interpretation of the letter of the law
that "killeth, rather than the spirit that giveth lift- hence, the ruling that "(W)e will not use the literal meaning of the law to smother and render almost lifeless a
principle of such ancient origin and such full-grown development as culpa aquiliana or quasi-delito, which is conserved and made enduring in articles 1902 to
1910 of the Spanish Civil Code." And so, because Justice Bacobo was Chairman of the Code Commission that drafted the original text of the new Civil
Code, it is to be noted that the said Code, which was enacted after the Garcia doctrine, no longer uses the term, 11 not punishable by law," thereby making it
clear that the concept of culpa aquiliana includes acts which are criminal in character or in violation of the penal law, whether voluntary or matter. Thus, the
corresponding provisions to said Article 1093 in the new code, which is Article 1162, simply says, "Obligations derived from quasi-delicto shall be governed
by the provisions of Chapter 2, Title XVII of this Book, (on quasi-delicts) and by special laws." More precisely, a new provision, Article 2177 of the new code
provides:

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

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

Although, again, this Article 2177 does seem to literally refer to only acts of negligence, the same argument of Justice Bacobo about construction that
upholds "the spirit that giveth lift- rather than that which is literal that killeth the intent of the lawmaker should be observed in applying the same. And
considering that the preliminary chapter on human relations of the new Civil Code definitely establishes the separability and independence of liability in a civil
action for acts criminal in character (under Articles 29 to 32) from the civil responsibility arising from crime fixed by Article 100 of the Revised Penal Code,
and, in a sense, the Rules of Court, under Sections 2 and 3 (c), Rule 111, contemplate also the same separability, it is "more congruent with the spirit of law,
equity and justice, and more in harmony with modern progress"- to borrow the felicitous relevant language in Rakes vs. Atlantic. Gulf and Pacific Co., 7 Phil.
359, to hold, as We do hold, that Article 2176, where it refers to "fault or negligencia covers not only acts "not punishable by law" but also acts criminal in
character, whether intentional and voluntary or negligent. Consequently, a separate civil action lies against the offender in a criminal act, whether or not he is
criminally prosecuted and found guilty or acquitted, provided that the offended party is not allowed, if he is actually charged also criminally, to recover
damages on both scores, and would be entitled in such eventuality only to the bigger award of the two, assuming the awards made in the two cases vary. In
other words, the extinction of civil liability referred to in Par. (e) of Section 3, Rule 111, refers exclusively to civil liability founded on Article 100 of the Revised
Penal Code, whereas the civil liability for the same act considered as a quasi-delict only and not as a crime is not estinguished even by a declaration in the
criminal case that the criminal act charged has not happened or has not been committed by the accused. Briefly stated, We here hold, in reiteration of
Garcia, that culpa aquiliana includes voluntary and negligent acts which may be punishable by law.4

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

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

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

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

It must be borne in mind that, according to Manresa, the reason behind the joint and solidary liability of presuncion with their offending child under Article
2180 is that is the obligation of the parent to supervise their minor children in order to prevent them from causing damage to third persons. 5 On the other
hand, the clear implication of Article 399, in providing that a minor emancipated by marriage may not, nevertheless, sue or be sued without the assistance of
the parents, is that such emancipation does not carry with it freedom to enter into transactions or do any act that can give rise to judicial litigation. (See
Manresa, Id., Vol. II, pp. 766-767, 776.) And surely, killing someone else invites judicial action. Otherwise stated, the marriage of a minor child does not
relieve the parents of the duty to see to it that the child, while still a minor, does not give answerable for the borrowings of money and alienation or
encumbering of real property which cannot be done by their minor married child without their consent. (Art. 399; Manresa, supra.)
Accordingly, in Our considered view, Article 2180 applies to Atty. Hill notwithstanding the emancipation by marriage of Reginald. However, inasmuch as it is
evident that Reginald is now of age, as a matter of equity, the liability of Atty. Hill has become milling, subsidiary to that of his son.

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

Fernando (Chairman), Antonio, and Martin, JJ., concur.

Concepcion Jr., J, is on leave.

Martin, J, was designated to sit in the Second Division.

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.
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.

G.R. No. 102007 September 2, 1994, PEOPLE OF THE PHILIPPINES, plaintiff-appellee, Vs. ROGELIO BAYOTAS y
CORDOVA, accused-appellant. The Solicitor General for plaintiff-appellee. Public Attorney's Office for accused-
appellant.
In Criminal Case No. C-3217 filed before Branch 16, RTC Roxas City, Rogelio Bayotas y Cordova was charged with Rape and eventually convicted thereof
on June 19, 1991 in a decision penned by Judge Manuel E. Autajay. Pending appeal of his conviction, Bayotas died on February 4, 1992 at
the National Bilibid Hospital due to cardio respiratory arrest secondary to hepatic encephalopathy secondary to hipato carcinoma gastric malingering.
Consequently, the Supreme Court in its Resolution of May 20, 1992 dismissed the criminal aspect of the appeal. However, it required the Solicitor General to
file its comment with regard to Bayotas' civil liability arising from his commission of the offense charged.

In his comment, the Solicitor General expressed his view that the death of accused-appellant did not extinguish his civil liability as a result of his commission
of the offense charged. The Solicitor General, relying on the case of People v. Sendaydiego 1 insists that the appeal should still be resolved for the purpose
of reviewing his conviction by the lower court on which the civil liability is based.

Counsel for the accused-appellant, on the other hand, opposed the view of the Solicitor General arguing that the death of the accused while judgment of
conviction is pending appeal extinguishes both his criminal and civil penalties. In support of his position, said counsel invoked the ruling of the Court of
Appeals in People v. Castillo and Ocfemia 2 which held that the civil obligation in a criminal case takes root in the criminal liability and, therefore, civil liability
is extinguished if accused should die before final judgment is rendered.

We are thus confronted with a single issue: Does death of the accused pending appeal of his conviction extinguish his civil liability?

In the aforementioned case of People v. Castillo, this issue was settled in the affirmative. This same issue posed therein was phrased thus: Does the death
of Alfredo Castillo affect both his criminal responsibility and his civil liability as a consequence of the alleged crime?

It resolved this issue thru the following disquisition:

Article 89 of the Revised Penal Code is the controlling statute. It reads, in part:
Art. 89. How criminal liability is totally extinguished. — Criminal liability is totally extinguished:

1. By the death of the convict, as to the personal penalties; and as to the pecuniary penalties liability therefor is extinguished only when the death of
the offender occurs before final judgment;

With reference to Castillo's criminal liability, there is no question. The law is plain. Statutory construction is unnecessary. Said liability is extinguished.

The civil liability, however, poses a problem. Such liability is extinguished only when the death of the offender occurs before final judgment. Saddled upon us
is the task of ascertaining the legal import of the term "final judgment." Is it final judgment as contradistinguished from an interlocutory order? Or, is it a
judgment which is final and executory?

We go to the genesis of the law. The legal precept contained in Article 89 of the Revised Penal Code heretofore transcribed is lifted from Article 132 of the
Spanish El Codigo Penal de 1870 which, in part, recites:

La responsabilidad penal se extingue.

1. Por la muerte del reo en cuanto a las penas personales siempre, y respecto a las pecuniarias, solo cuando a su fallecimiento no hubiere recaido
sentencia firme.

xxx xxx xxx

The code of 1870 . . . it will be observed employs the term "sentencia firme." What is "sentencia firme" under the old statute?

XXVIII Enciclopedia Juridica Española, p. 473, furnishes the ready answer: It says:

SENTENCIA FIRME. La sentencia que adquiere la fuerza de las definitivas por no haberse utilizado por las partes litigantes recurso alguno contra ella
dentro de los terminos y plazos legales concedidos al efecto.

"Sentencia firme" really should be understood as one which is definite. Because, it is only when judgment is such that, as Medina y Maranon puts it, the
crime is confirmed — "en condena determinada;" or, in the words of Groizard, the guilt of the accused becomes — "una verdad legal." Prior thereto, should
the accused die, according to Viada, "no hay legalmente, en tal caso, ni reo, ni delito, ni responsabilidad criminal de ninguna clase." And, as Judge Kapunan
well explained, when a defendant dies before judgment becomes executory, "there cannot be any determination by final judgment whether or not the felony
upon which the civil action might arise exists," for the simple reason that "there is no party defendant." (I Kapunan, Revised Penal Code, Annotated, p. 421.
Senator Francisco holds the same view. Francisco, Revised Penal Code, Book One, 2nd ed., pp. 859-860)

The legal import of the term "final judgment" is similarly reflected in the Revised Penal Code. Articles 72 and 78 of that legal body mention the term "final
judgment" in the sense that it is already enforceable. This also brings to mind Section 7, Rule 116 of the Rules of Court which states that a judgment in a
criminal case becomes final "after the lapse of the period for perfecting an appeal or when the sentence has been partially or totally satisfied or served, or
the defendant has expressly waived in writing his right to appeal."

By fair intendment, the legal precepts and opinions here collected funnel down to one positive conclusion: The term final judgment employed in the Revised
Penal Code means judgment beyond recall. Really, as long as a judgment has not become executory, it cannot be truthfully said that defendant is definitely
guilty of the felony charged against him.

Not that the meaning thus given to final judgment is without reason. For where, as in this case, the right to institute a separate civil action is not reserved, the
decision to be rendered must, of necessity, cover "both the criminal and the civil aspects of the case." People vs. Yusico (November 9, 1942), 2 O.G., No.
100, p. 964. See also: People vs. Moll, 68 Phil., 626, 634; Francisco, Criminal Procedure, 1958 ed., Vol. I, pp. 234, 236. Correctly, Judge Kapunan observed
that as "the civil action is based solely on the felony committed and of which the offender might be found guilty, the death of the offender extinguishes the
civil liability." I Kapunan, Revised Penal Code, Annotated, supra.

Here is the situation obtaining in the present case: Castillo's criminal liability is out. His civil liability is sought to be enforced by reason of that criminal liability.
But then, if we dismiss, as we must, the criminal action and let the civil aspect remain, we will be faced with the anomalous situation whereby we will be
called upon to clamp civil liability in a case where the source thereof — criminal liability — does not exist. And, as was well stated in Bautista, et al. vs.
Estrella, et al., CA-G.R.
No. 19226-R, September 1, 1958, "no party can be found and held criminally liable in a civil suit," which solely would remain if we are to divorce it from the
criminal proceeding."

This ruling of the Court of Appeals in the Castillo case 3 was adopted by the Supreme Court in the cases of People of the Philippines v. Bonifacio Alison, et
al., 4 People of the Philippines v. Jaime Jose, et al. 5 and People of the Philippines v. Satorre 6 by dismissing the appeal in view of the death of the accused
pending appeal of said cases.

As held by then Supreme Court Justice Fernando in the Alison case:

The death of accused-appellant Bonifacio Alison having been established, and considering that there is as yet no final judgment in view of the pendency of
the appeal, the criminal and civil liability of the said accused-appellant Alison was extinguished by his death (Art. 89, Revised Penal Code; Reyes' Criminal
Law, 1971 Rev. Ed., p. 717, citing People v. Castillo and Ofemia C.A., 56 O.G. 4045); consequently, the case against him should be dismissed.

On the other hand, this Court in the subsequent cases of Buenaventura Belamala v. Marcelino Polinar 7 and Lamberto Torrijos v. The Honorable Court of
Appeals 8 ruled differently. In the former, the issue decided by this court was: Whether the civil liability of one accused of physical injuries who died before
final judgment is extinguished by his demise to the extent of barring any claim therefore against his estate. It was the contention of the administrator-
appellant therein that the death of the accused prior to final judgment extinguished all criminal and civil liabilities resulting from the offense, in view of Article
89, paragraph 1 of the Revised Penal Code. However, this court ruled therein:
We see no merit in the plea that the civil liability has been extinguished, in view of the provisions of the Civil Code of the Philippines of 1950 (Rep. Act No.
386) that became operative eighteen years after the revised Penal Code. As pointed out by the Court below, Article 33 of the Civil Code establishes a civil
action for damages on account of physical injuries, entirely separate and distinct from the criminal action.

Art. 33. In cases of defamation, fraud, and physical injuries, a civil action for damages, entirely separate and distinct from the criminal action, may be
brought by the injured party. Such civil action shall proceed independently of the criminal prosecution, and shall require only a preponderance of evidence.

Assuming that for lack of express reservation, Belamala's civil action for damages was to be considered instituted together with the criminal action still, since
both proceedings were terminated without final adjudication, the civil action of the offended party under Article 33 may yet be enforced separately.

In Torrijos, the Supreme Court held that:

xxx xxx xxx

It should be stressed that the extinction of civil liability follows the extinction of the criminal liability under Article 89, only when the civil liability arises from the
criminal act as its only basis. Stated differently, where the civil liability does not exist independently of the criminal responsibility, the extinction of the latter by
death, ipso facto extinguishes the former, provided, of course, that death supervenes before final judgment. The said principle does not apply in instant case
wherein the civil liability springs neither solely nor originally from the crime itself but from a civil contract of purchase and sale. (Emphasis ours)

xxx xxx xxx

In the above case, the court was convinced that the civil liability of the accused who was charged with estafa could likewise trace its genesis to Articles 19,
20 and 21 of the Civil Code since said accused had swindled the first and second vendees of the property subject matter of the contract of sale. It therefore
concluded: "Consequently, while the death of the accused herein extinguished his criminal liability including fine, his civil liability based on the laws of human
relations remains."

Thus it allowed the appeal to proceed with respect to the civil liability of the accused, notwithstanding the extinction of his criminal liability due to his death
pending appeal of his conviction.

To further justify its decision to allow the civil liability to survive, the court relied on the following ratiocination: Since Section 21, Rule 3 of the Rules of Court 9
requires the dismissal of all money claims against the defendant whose death occurred prior to the final judgment of the Court of First Instance (CFI), then it
can be inferred that actions for recovery of money may continue to be heard on appeal, when the death of the defendant supervenes after the CFI had
rendered its judgment. In such case, explained this tribunal, "the name of the offended party shall be included in the title of the case as plaintiff-appellee and
the legal representative or the heirs of the deceased-accused should be substituted as defendants-appellants."

It is, thus, evident that as jurisprudence evolved from Castillo to Torrijos, the rule established was that the survival of the civil liability depends on whether the
same can be predicated on sources of obligations other than delict. Stated differently, the claim for civil liability is also extinguished together with the criminal
action if it were solely based thereon, i.e., civil liability ex delicto.

However, the Supreme Court in People v. Sendaydiego, et al. 10 departed from this long-established principle of law. In this case, accused Sendaydiego
was charged with and convicted by the lower court of malversation thru falsification of public documents. Sendaydiego's death supervened during the
pendency of the appeal of his conviction.

This court in an unprecedented move resolved to dismiss Sendaydiego's appeal but only to the extent of his criminal liability. His civil liability was allowed to
survive although it was clear that such claim thereon was exclusively dependent on the criminal action already extinguished. The legal import of such
decision was for the court to continue exercising appellate jurisdiction over the entire appeal, passing upon the correctness of Sendaydiego's conviction
despite dismissal of the criminal action, for the purpose of determining if he is civilly liable. In doing so, this Court issued a Resolution of July 8, 1977 stating
thus:

The claim of complainant Province of Pangasinan for the civil liability survived Sendaydiego because his death occurred after final judgment was rendered
by the Court of First Instance of Pangasinan, which convicted him of three complex crimes of malversation through falsification and ordered him to indemnify
the Province in the total sum of P61,048.23 (should be P57,048.23).

The civil action for the civil liability is deemed impliedly instituted with the criminal action in the absence of express waiver or its reservation in a separate
action (Sec. 1, Rule 111 of the Rules of Court). The civil action for the civil liability is separate and distinct from the criminal action (People and Manuel vs.
Coloma, 105 Phil. 1287; Roa vs. De la Cruz, 107 Phil. 8).

When the action is for the recovery of money and the defendant dies before final judgment in the Court of First Instance, it shall be dismissed to be
prosecuted in the manner especially provided in Rule 87 of the Rules of Court (Sec. 21, Rule 3 of the Rules of Court).

The implication is that, if the defendant dies after a money judgment had been rendered against him by the Court of First Instance, the action survives him. It
may be continued on appeal (Torrijos vs. Court of Appeals, L-40336, October 24, 1975; 67 SCRA 394).

The accountable public officer may still be civilly liable for the funds improperly disbursed although he has no criminal liability (U.S. vs. Elvina, 24 Phil. 230;
Philippine National Bank vs. Tugab, 66 Phil. 583).

In view of the foregoing, notwithstanding the dismissal of the appeal of the deceased Sendaydiego insofar as his criminal liability is concerned, the Court
Resolved to continue exercising appellate jurisdiction over his possible civil liability for the money claims of the Province of Pangasinan arising from the
alleged criminal acts complained of, as if no criminal case had been instituted against him, thus making applicable, in determining his civil liability, Article 30
of the Civil Code . . . and, for that purpose, his counsel is directed to inform this Court within ten (10) days of the names and addresses of the decedent's
heirs or whether or not his estate is under administration and has a duly appointed judicial administrator. Said heirs or administrator will be substituted for the
deceased insofar as the civil action for the civil liability is concerned (Secs. 16 and 17, Rule 3, Rules of Court).
Succeeding cases 11 raising the identical issue have maintained adherence to our ruling in Sendaydiego; in other words, they were a reaffirmance of our
abandonment of the settled rule that a civil liability solely anchored on the criminal (civil liability ex delicto) is extinguished upon dismissal of the entire appeal
due to the demise of the accused.

But was it judicious to have abandoned this old ruling? A re-examination of our decision in Sendaydiego impels us to revert to the old ruling.

To restate our resolution of July 8, 1977 in Sendaydiego: The resolution of the civil action impliedly instituted in the criminal action can proceed irrespective
of the latter's extinction due to death of the accused pending appeal of his conviction, pursuant to Article 30 of the Civil Code and Section 21, Rule 3 of the
Revised Rules of Court.

Article 30 of the Civil Code provides:

When a separate civil action is brought to demand civil liability arising from a criminal offense, and no criminal proceedings are instituted during the
pendency of the civil case, a preponderance of evidence shall likewise be sufficient to prove the act complained of.

Clearly, the text of Article 30 could not possibly lend support to the ruling in Sendaydiego. Nowhere in its text is there a grant of authority to continue
exercising appellate jurisdiction over the accused's civil liability ex delicto when his death supervenes during appeal. What Article 30 recognizes is an
alternative and separate civil action which may be brought to demand civil liability arising from a criminal offense independently of any criminal action. In the
event that no criminal proceedings are instituted during the pendency of said civil case, the quantum of evidence needed to prove the criminal act will have
to be that which is compatible with civil liability and that is, preponderance of evidence and not proof of guilt beyond reasonable doubt. Citing or invoking
Article 30 to justify the survival of the civil action despite extinction of the criminal would in effect merely beg the question of whether civil liability ex delicto
survives upon extinction of the criminal action due to death of the accused during appeal of his conviction. This is because whether asserted in
the criminal action or in a separate civil action, civil liability ex delicto is extinguished by the death of the accused while his conviction is on appeal. Article 89
of the Revised Penal Code is clear on this matter:

Art. 89. How criminal liability is totally extinguished. — Criminal liability is totally extinguished:

1. By the death of the convict, as to the personal penalties; and as to pecuniary penalties, liability therefor is extinguished only when the death of the
offender occurs before final judgment;

xxx xxx xxx

However, the ruling in Sendaydiego deviated from the expressed intent of Article 89. It allowed claims for civil liability ex delicto to survive by ipso facto
treating the civil action impliedly instituted with the criminal, as one filed under Article 30, as though no criminal proceedings had been filed but merely a
separate civil action. This had the effect of converting such claims from one which is dependent on the outcome of the criminal action to an entirely new and
separate one, the prosecution of which does not even necessitate the filing of criminal proceedings. 12 One would be hard put to pinpoint the statutory
authority for such a transformation. It is to be borne in mind that in recovering civil liability ex delicto, the same has perforce to be determined in the criminal
action, rooted as it is in the court's pronouncement of the guilt or innocence of the accused. This is but to render fealty to the intendment of Article 100 of the
Revised Penal Code which provides that "every person criminally liable for a felony is also civilly liable." In such cases, extinction of the criminal action due
to death of the accused pending appeal inevitably signifies the concomitant extinction of the civil liability. Mors Omnia Solvi. Death dissolves all things.

In sum, in pursuing recovery of civil liability arising from crime, the final determination of the criminal liability is a condition precedent to the prosecution of the
civil action, such that when the criminal action is extinguished by the demise of accused-appellant pending appeal thereof, said civil action cannot survive.
The claim for civil liability springs out of and is dependent upon facts which, if true, would constitute a crime. Such civil liability is an inevitable consequence
of the criminal liability and is to be declared and enforced in the criminal proceeding. This is to be distinguished from that which is contemplated under Article
30 of the Civil Code which refers to the institution of a separate civil action that does not draw its life from a criminal proceeding. The Sendaydiego resolution
of July 8, 1977, however, failed to take note of this fundamental distinction when it allowed the survival of the civil action for the recovery of civil liability ex
delicto by treating the same as a separate civil action referred to under Article 30. Surely, it will take more than just a summary judicial pronouncement to
authorize the conversion of said civil action to an independent one such as that contemplated under Article 30.

Ironically however, the main decision in Sendaydiego did not apply Article 30, the resolution of July 8, 1977 notwithstanding. Thus, it was held in the main
decision:

Sendaydiego's appeal will be resolved only for the purpose of showing his criminal liability which is the basis of the civil liability for which his estate would be
liable. 13

In other words, the Court, in resolving the issue of his civil liability, concomitantly made a determination on whether Sendaydiego, on the basis of evidenced
adduced, was indeed guilty beyond reasonable doubt of committing the offense charged. Thus, it upheld Sendaydiego's conviction and pronounced the
same as the source of his civil liability. Consequently, although Article 30 was not applied in the final determination of Sendaydiego's civil liability, there was a
reopening of the criminal action already extinguished which served as basis for Sendaydiego's civil liability. We reiterate: Upon death of the accused pending
appeal of his conviction, the criminal action is extinguished inasmuch as there is no longer a defendant to stand as the accused; the civil action instituted
therein for recovery of civil liability ex delicto is ipso facto extinguished, grounded as it is on the criminal.

Section 21, Rule 3 of the Rules of Court was also invoked to serve as another basis for the Sendaydiego resolution of July 8, 1977. In citing Sec. 21, Rule 3
of the Rules of Court, the Court made the inference that civil actions of the type involved in Sendaydiego consist of money claims, the recovery of which may
be continued on appeal if defendant dies pending appeal of his conviction by holding his estate liable therefor. Hence, the Court's conclusion:

"When the action is for the recovery of money" "and the defendant dies before final judgment in the court of First Instance, it shall be dismissed to be
prosecuted in the manner especially provided" in Rule 87 of the Rules of Court (Sec. 21, Rule 3 of the Rules of Court).

The implication is that, if the defendant dies after a money judgment had been rendered against him by the Court of First Instance, the action survives him. It
may be continued on appeal.

Sadly, reliance on this provision of law is misplaced. From the standpoint of procedural law, this course taken in Sendaydiego cannot be sanctioned. As
correctly observed by Justice Regalado:
xxx xxx xxx

I do not, however, agree with the justification advanced in both Torrijos and Sendaydiego which, relying on the provisions of Section 21, Rule 3 of the Rules
of Court, drew the strained implication therefrom that where the civil liability instituted together with the criminal liabilities had already passed beyond the
judgment of the then Court of First Instance (now the Regional Trial Court), the Court of Appeals can continue to exercise appellate jurisdiction thereover
despite the extinguishment of the component criminal liability of the deceased. This pronouncement, which has been followed in the Court's judgments
subsequent and consonant to Torrijos and Sendaydiego, should be set aside and abandoned as being clearly erroneous and unjustifiable.

Said Section 21 of Rule 3 is a rule of civil procedure in ordinary civil actions. There is neither authority nor justification for its application in criminal procedure
to civil actions instituted together with and as part of criminal actions. Nor is there any authority in law for the summary conversion from the latter category of
an ordinary civil action upon the death of the offender. . . .

Moreover, the civil action impliedly instituted in a criminal proceeding for recovery of civil liability ex delicto can hardly be categorized as an ordinary money
claim such as that referred to in Sec. 21, Rule 3 enforceable before the estate of the deceased accused.

Ordinary money claims referred to in Section 21, Rule 3 must be viewed in light of the provisions of Section 5, Rule 86 involving claims against the estate,
which in Sendaydiego was held liable for Sendaydiego's civil liability. "What are contemplated in Section 21 of Rule 3, in relation to Section 5 of Rule 86, 14
are contractual money claims while the claims involved in civil liability ex delicto may include even the restitution of personal or real property." 15 Section 5,
Rule 86 provides an exclusive enumeration of what claims may be filed against the estate. These are: funeral expenses, expenses for the last illness,
judgments for money and claim arising from contracts, expressed or implied. It is clear that money claims arising from delict do not form part of this exclusive
enumeration. Hence, there could be no legal basis in (1) treating a civil action ex delicto as an ordinary contractual money claim referred to in Section 21,
Rule 3 of the Rules of Court and (2) allowing it to survive by filing a claim therefor before the estate of the deceased accused. Rather, it should be
extinguished upon extinction of the criminal action engendered by the death of the accused pending finality of his conviction.

Accordingly, we rule: if the private offended party, upon extinction of the civil liability ex delicto desires to recover damages from the same act or omission
complained of, he must subject to Section 1, Rule 111 16 (1985 Rules on Criminal Procedure as amended) file a separate civil action, this time predicated
not on the felony previously charged but on other sources of obligation. The source of obligation upon which the separate civil action is premised determines
against whom the same shall be enforced.

If the same act or omission complained of also arises from quasi-delict or may, by provision of law, result in an injury to person or property (real or personal),
the separate civil action must be filed against the executor or administrator 17 of the estate of the accused pursuant to Sec. 1, Rule 87 of the Rules of Court:

Sec. 1. Actions which may and which may not be brought against executor or administrator. — No action upon a claim for the recovery of money or debt or
interest thereon shall be commenced against the executor or administrator; but actions to recover real or personal property, or an interest therein, from the
estate, or to enforce a lien thereon, and actions to recover damages for an injury to person or property, real or personal, may be commenced against him.

This is in consonance with our ruling in Belamala 18 where we held that, in recovering damages for injury to persons thru an independent civil action based
on Article 33 of the Civil Code, the same must be filed against the executor or administrator of the estate of deceased accused and not against the estate
under Sec. 5, Rule 86 because this rule explicitly limits the claim to those for funeral expenses, expenses for the last sickness of the decedent, judgment for
money and claims arising from contract, express or implied. Contractual money claims, we stressed, refers only to purely personal obligations other than
those which have their source in delict or tort.

Conversely, if the same act or omission complained of also arises from contract, the separate civil action must be filed against the estate of the accused,
pursuant to Sec. 5, Rule 86 of the Rules of Court.

From this lengthy disquisition, we summarize our ruling herein:

1. Death of the accused pending appeal of his conviction extinguishes his criminal liability as well as the civil liability based solely thereon. As opined
by Justice Regalado, in this regard, "the death of the accused prior to final judgment terminates his criminal liability and only the civil liability directly arising
from and based solely on the offense committed, i.e., civil liability ex delicto in senso strictiore."

2. Corollarily, the claim for civil liability survives notwithstanding the death of accused, if the same may also be predicated on a source of obligation
other than delict. 19 Article 1157 of the Civil Code enumerates these other sources of obligation from which the civil liability may arise as a result of the same
act or omission:

a) Law 20
b) Contracts
c) Quasi-contracts
d) ...
e) Quasi-delicts

3. Where the civil liability survives, as explained in Number 2 above, an action for recovery therefor may be pursued but only by way of filing a
separate civil action and subject to Section 1, Rule 111 of the 1985 Rules on Criminal Procedure as amended. This separate civil action may be enforced
either against the executor/administrator or the estate of the accused, depending on the source of obligation upon which the same is based as explained
above.

4. Finally, the private offended party need not fear a forfeiture of his right to file this separate civil action by prescription, in cases where during the
prosecution of the criminal action and prior to its extinction, the private-offended party instituted together therewith the civil action. In such case, the statute of
limitations on the civil liability is deemed interrupted during the pendency of the criminal case, conformably with provisions of Article 1155 21 of the Civil
Code, that should thereby avoid any apprehension on a possible privation of right by prescription. 22

Applying this set of rules to the case at bench, we hold that the death of appellant Bayotas extinguished his criminal liability and the civil liability based solely
on the act complained of, i.e., rape. Consequently, the appeal is hereby dismissed without qualification.
WHEREFORE, the appeal of the late Rogelio Bayotas is DISMISSED with costs de oficio.

SO ORDERED.

SPOUSES ERLINDA BATAL AND FRANK BATAL, G.R. No. 164601 Petitioners, - versus - PANGANIBAN,
C.J.,YNARES-SANTIAGO, AUSTRIA-MARTINEZ, SPOUSES LUZ SAN PEDRO AND KENICHIRO TOMINAGA,
CALLEJO, SR. and CHICO-NAZARIO, JJ.
Before the Court is a Petition for Review on Certiorari under Rule 45 of the Rules of Court questioning the Decision[1] dated September 29, 2003
promulgated by the Court of Appeals (CA) in CA-G.R. CV No. 71758, which affirmed the Decision dated May 31, 2004 of the Regional Trial Court, Branch 7,
Malolos, Bulacan (RTC); and the CA Resolution[2] dated July 19, 2004.

This case originated from an action for damages filed with the RTC by Spouses Luz San Pedro and Kenichiro Tominaga (respondents) against Spouses
Erlinda Batal and Frank Batal (petitioners) for failure to exercise due care and diligence by the latter in the preparation of a survey which formed the basis for
the construction of a perimeter fence that was later discovered to have encroached on a right of way.

The facts of the case, as found by the RTC and summarized by the CA, are as follows:

The spouses Luz San Pedro (Luz) and Kenichiro Tominaga (Kenichiro) are the owners of a parcel of land, on which their house was erected, described as
Lot 1509-C-3 with an area of 700 square meters situated in Barangay Malis, Guiguinto, Bulacan. Said property was acquired by them from one Guillermo
Narciso as evidenced by a Bilihan ng Bahagi ng Lupa dated March 18, 1992.

The spouses Luz and Kenichiro then contracted the services of Frank Batal (Frank) who represented himself as a surveyor to conduct a survey of their lot
for the sum of P6,500.00. As Luz and Kenichiro wanted to enclose their property, they again procured the services of Frank for an additional fee of P1,500.00
in order to determine the exact boundaries of the same by which they will base the construction of their perimeter fence.

Consequently, Frank placed concrete monuments marked P.S. on all corners of the lot which were used as guides by Luz and Kenichiro in erecting a
concrete fence measuring about eight (8) feet in height and cost them P250,000.00 to build.

Sometime in 1996, a complaint was lodged against Luz and Kenichiro before the barangay on the ground that the northern portion of their fence allegedly
encroached upon a designated right-of-way known as Lot 1509-D. Upon verification with another surveyor, Luz and Kenichiro found that their wall indeed
overlapped the adjoining lot. They also discovered that it was not Frank but his wife Erlinda Batal (Erlinda), who is a licensed geodetic engineer.

During their confrontations before the barangay, Frank admitted that he made a mistake and offered to share in the expenses for the demolition and
reconstruction of the questioned portion of Luz and Kenichiros fence. He however failed to deliver on his word, thus the filing of the instant suit.

In their defense, the defendants-spouses Frank and Erlinda Batal submitted that Frank never represented himself to be a licensed geodetic engineer. It was
Erlinda who supervised her husbands work [and t]hat the house and lot of plaintiffs, Luz and Kenichiro, were already fenced even before they were
contracted to do a resurvey of the same and the laying out of the concrete monuments. The spouses Frank and Erlinda also refuted the spouses Luzs and
Kenichiros allegation of negligence and averred that the subject complaint was instituted to harass them.[3]

On May 31, 2001, the RTC rendered its Decision, the dispositive portion of which reads:

WHEREFORE, judgment is hereby rendered in favor of plaintiffs and against defendants, as follows:
1. Ordering the defendants [petitioners] to pay to plaintiffs [respondents] the sum of P6,500.00 as refund for their professional fees by reason of the
erroneous relocation survey of the property in question;
2. Ordering the defendants to pay to plaintiffs the sum of Three Hundred Thousand Pesos (P300,000.00) as actual damages;
3. Ordering the defendants to pay to plaintiffs the sum of P50,000.00 as attorneys fees; and
4. Ordering the defendants to pay to plaintiffs the costs of this suit.
SO ORDERED.[4]

Regarding the issue whether the petitioners failed to exercise due care and diligence in the conduct of the resurvey which eventually caused damage to the
respondents, the RTC held:

As against the bare and self-serving denials of the [petitioners], the testimony of [respondent] Luz San Pedro that she constructed the encroaching perimeter
fence in question using as guide the cyclone concrete monuments marked P.S. that were installed by [petitioner] Frank Batal and his survey team, is more
credible. As testified to by [respondent] Luz San Pedro, she proceeded with the construction of the perimeter fence in question upon assurance given by
[petitioner] Frank Batal that she could already do so as there were already concrete monuments placed on the boundaries of her property x x x.

xxxx

It does not matter that the location plan dated May 3, 1992 (Exhibit B) was later approved by the DENR, as it is quite apparent that the mistake committed by
[petitioner] Frank Batal pertains to the wrong locations of the concrete monuments that he placed on the subject property and which were used or relied
upon by the [respondents] in putting up the fence in question. Such mistake or negligence happened because quite obviously the installation of said concrete
monuments was without the needed supervision of [respondent] Erlinda Batal, the one truly qualified to supervise the same. x x x x

x x x x[5]

The RTC found that indeed the perimeter fence constructed by the respondents encroached on the right-of-way in question; that the preponderance of
evidence supports the finding that the encroachment was caused by the negligence of the petitioners; that, in particular, respondents constructed the fence
based on the concrete cyclone monuments that were installed by petitioner Frank Batal and after he gave his assurance that they can proceed accordingly;
that the negligence in the installation of the monuments was due to the fact that petitioner Erlinda Batal, the one truly qualified, did not provide the needed
supervision over the work; and, lastly, that the testimonies of the petitioners on the whole were not credible.

The petitioners appealed to the CA. On September 29, 2003, the CA rendered its Decision affirming the RTC decision in its entirety.[6]

In concurring with the findings of the RTC, the CA in addition held that the petitioners cannot claim that the error of the construction of the fence was due to
the unilateral act of respondents in building the same without their consent, since the former gave their word that the arrangement of the monuments of title
accurately reflected the boundaries of the lot; and that, as a result, the northern portion of the fence had to be demolished and rebuilt in order to correct the
error.

Hence, the instant Petition assigning the following errors:

I.

The Court of Appeals erred in ruling for the Respondents and basing its decision [o]n the following jurisprudence:

(a) [A] party, having performed affirmative acts upon which another person based his subsequent actions, cannot thereafter refute his acts or renege on
the effects of the same, to the prejudice of the latter. (Pureza vs. Court of Appeals, 290 SCRA 110); and
(b) Findings of fact made by the trial court [are] entitled to great weight and respect. (Lopez vs. Court of Appeals, 322 SCRA 686).

II.
The Court of Appeals erred in ruling in favor of Respondents by premising its Decision on [a] misapprehension of facts amounting to grave abuse of
discretion . . . which is also a ground for a Petition for Review.[7]

The petition must fail.

The petitioners insist that there had been no error in their resurvey, but rather, the error occurred in respondents fencing; that the proximate cause of the
damage had been respondents own negligence such that the fencing was done unilaterally and solely by them without the prior approval and supervision of
the petitioners. And to justify their case, the petitioners argue that the courts a quo misapprehended the facts. Accordingly, they ask this Court to review
findings of fact.

A review of the factual findings of the CA and the RTC are matters not ordinarily reviewable in a petition for review on certiorari.[8] Well-established is the
rule that factual findings of the trial court and the CA are entitled to great weight and respect[9] and will not be disturbed on appeal save in exceptional
circumstances,[10] none of which obtains in the present case. This Court must stress that the findings of fact of the CA are conclusive on the parties and
carry even more weight when these coincide with the factual findings of the trial court,[11] as in this case.

The Court will not weigh the evidence all over again unless there is a showing that the findings of the lower court are totally devoid of support or are clearly
erroneous so as to constitute serious abuse of discretion.[12] The petitioners failed to demonstrate this point. On the contrary, the finding of the courts a quo
that the damage caused to the respondents was due to petitioners negligence is sufficiently supported by the evidence on record. For these reasons, the
petitioner's contentions bear no import.

Culpa, or negligence, may be understood in two different senses: either as culpa aquiliana, which is the wrongful or negligent act or omission which creates
a vinculum juris and gives rise to an obligation between two persons not formally bound by any other obligation, or as culpa contractual, which is the fault or
negligence incident in the performance of an obligation which already existed, and which increases the liability from such already existing obligation.[13]
Culpa aquiliana is governed by Article 2176 of the Civil Code and the immediately following Articles; while culpa contractual is governed by Articles 1170 to
1174 of the same Code.[14]

Articles 1170 and 1173 provide:

ART. 1170. Those who in the performance of their obligations are guilty of fraud, negligence, or delay, and those who in any manner contravene the tenor
thereof, are liable for damages.

ART. 1173. The fault or negligence of the obligor consists in the omission of that diligence which is required by the nature of the obligation and corresponds
with the circumstances of the persons, of the time and of the place. When negligence shows bad faith, the provisions of articles 1171 and 2202, paragraph 2,
shall apply.

If the law or contract does not state the diligence which is to be observed in the performance, that which is expected of a good father of a family shall be
required.

In the present case, it is clear that the petitioners, in carrying out their contractual obligations, failed to exercise the requisite diligence in the placement of the
markings for the concrete perimeter fence that was later constructed. The placement of the markings had been done solely by petitioner Frank Batal who is
not a geodetic engineer. It was later discovered that it was not he but his wife, petitioner Erlinda Batal, who is the licensed geodetic engineer and who is,
therefore, the one qualified to do the work. Petitioner Frank Batals installation of the concrete cyclone monuments had been done without the adequate
supervision of his wife, Erlinda. As a result, the placement of the monuments did not accurately reflect the dimensions of the lot. The respondents, upon
assurance given by petitioner Frank Batal that they could proceed with the construction of the perimeter fence by relying on the purported accuracy of the
placement of the monuments, erected their fence which turned out to encroach on an adjacent easement. Because of the encroachment, the respondents
had to demolish and reconstruct the fence and, thus, suffered damages.

The Court affirms and adopts the findings of the CA, to wit:

Records show that the services of the [petitioners] Frank and Erlinda were initially contracted to segregate Luz and Kenichiros property from its adjoining
lots. When the [respondent] spouses Luz and Kenichiro planned to fence the segregated lot, they again commissioned [petitioners] Frank and Erlinda to
conduct a resurvey in order to determine the precise boundaries of their property upon which they will base the construction of their fence. It was also shown
that in the course of the resurvey, Frank caused the installation of monuments of title on the four (4) corners of Luz and Kenichiros property and that he
instructed them to just follow the same in building their fence.
 [Petitioners] Frank and Erlinda cannot thus validly claim that the error in the construction of the northern portion of the fence was due to the spouses Luz
and Kenichiros act of building the same without their consent. This is considering that the former led the latter to believe the purported accuracy of the
resurvey and exactness of the lots boundaries based on the monuments of title which they installed.

It has been ruled that [A] party, having performed affirmative acts upon which another person based his subsequent actions, cannot thereafter refute his acts
or renege on the effects of the same, to the prejudice of the latter. (Pureza v. Court of Appeals, 290 SCRA 110)

The foregoing clearly supports the findings of the RTC that the spouses Batal committed a mistake in the conduct of their business that led to the
encroachment of plaintiffs-appellees fence on the adjoining alley-lot. As a result, the northern portion ha[d] to be torn down and rebuilt in order to correct the
error in its original construction. The defendants-appellants cannot be excused from the effects of their actions in the survey of plaintiffs-appellees lot.

We therefore concur with the findings of the RTC holding defendants-appellants liable for damages in the case at bar. Findings of fact made by the trial court
is entitled to great weight and respect. (Lopez v. Court of Appeals, 322 SCRA 686)[15]

Being guilty of a breach of their contract, petitioners are liable for damages suffered by the respondents in accordance with Articles 1170 and 2201 of the
Civil Code,[16] which state:

Art. 1170. Those who in the performance of their obligations are guilty of fraud, negligence, or delay and those who in any manner contravene the tenor
thereof are liable for damages

Art. 2201. In contracts and quasi-contracts, the damages for which the obligor who acted in good faith is liable shall be those that are the natural and
probable consequences of the breach of the obligation, and which the parties have foreseen or could have reasonably foreseen at the time the obligation
was constituted.

In case of fraud, bad faith, malice or wanton attitude, the obligor shall be responsible for all damages which may be reasonably attributed to the non-
performance of the obligation.

Thus, the Court agrees with the CAs affirmance of the findings of the RTC on the matter of damages, to wit:

Going now to the claims for damages, Engr. Arnold Martin testified on his computation and estimate (Exhibits G and G-1) that the total cost for the
demolition and reconstruction of the perimeter fence in question would be in the total amount of P428,163.90, and this was not at all disputed by the
defendants, whose counsel waived cross-examination. This estimate is practically double the amount of the cost of constructing said fence as testified to by
plaintiff Luz San Pedro as she was told that it is much costlier to demolish and reconstruct a fence than to simply erect one because of the added expense
involved in tearing it down and hauling its debris. On the other hand, said plaintiff stated that the iron decorative grills of the fence, which is re-usable, cost
her P50,000.00, and it is only proper to deduct said amount from the total cost of reconstructing the fence in question. At the same time, some figures in the
said estimate appear to be quite excessive, such as the estimated cost for demolition which was quoted at P25,000.00 in addition to the amount of
excavation priced at P30,000.00 and the cost of hauling of scrap materials at P10,000.00. The court believes that the sum of P300,000.00 for the demolition
and reconstruction of the fence in question would be reasonable considering that the original cost for its construction was only about P200,000.00, and
considering further that its iron grills are re-usable.

The plaintiffs are likewise entitled to recover attorneys fees considering that they were compelled by the defendants to resort to court action in order to
protect their rights and interest, as defendants, particularly defendant Frank Batal, failed and refused repeatedly to even attend the confrontation of
conciliation meetings arranged between him and the plaintiffs by the barangay authorities concerned, and to honor his promise to help in shouldering the
cost of reconstructing the fence in question.

On the other hand, there is no legal or factual bases for the claim of the plaintiffs for moral or exemplary damages as there was no showing at all that
defendants acted with malice or in bad faith.

In a long line of cases, we have consistently ruled that in the absence of a wrongful act or omission or of fraud or bad faith, moral damages cannot be
awarded. (R & B Surety Insurance Co. v. Intermediate Court of Appeals, 129 SCRA 736; Guita v. Court of Appeals, 139 SCRA 576).[17]

WHEREFORE, the instant petition is DENIED and the assailed Decision and Resolution of the Court of Appeals are AFFIRMED.

Costs against petitioners. SO ORDERED.

VICENTE CALALAS, petitioner, vs. COURT OF APPEALS, ELIZA JUJEURCHE SUNGA and FRANCISCO SALVA,
respondents.
This is a petition for review on certiorari of the decision[1] of the Court of Appeals, dated March 31, 1991, reversing the contrary decision of the Regional Trial
Court, Branch 36, Dumaguete City, and awarding damages instead to private respondent Eliza Jujeurche Sunga as plaintiff in an action for breach of
contract of carriage.

The facts, as found by the Court of Appeals, are as follows:

At 10 oclock in the morning of August 23, 1989, private respondent Eliza Jujeurche G. Sunga, then a college freshman majoring in Physical Education at the
Siliman University, took a passenger jeepney owned and operated by petitioner Vicente Calalas. As the jeepney was filled to capacity of about 24
passengers, Sunga was given by the conductor an "extension seat," a wooden stool at the back of the door at the rear end of the vehicle. Sclaw

On the way to Poblacion Sibulan, Negros Occidental, the jeepney stopped to let a passenger off. As she was seated at the rear of the vehicle, Sunga gave
way to the outgoing passenger. Just as she was doing so, an Isuzu truck driven by Iglecerio Verena and owned by Francisco Salva bumped the left rear
portion of the jeepney. As a result, Sunga was injured. She sustained a fracture of the "distal third of the left tibia-fibula with severe necrosis of the underlying
skin." Closed reduction of the fracture, long leg circular casting, and case wedging were done under sedation. Her confinement in the hospital lasted from
August 23 to September 7, 1989. Her attending physician, Dr. Danilo V. Oligario, an orthopedic surgeon, certified she would remain on a cast for a period of
three months and would have to ambulate in crutches during said period.

On October 9, 1989, Sunga filed a complaint for damages against Calalas, alleging violation of the contract of carriage by the former in failing to exercise the
diligence required of him as a common carrier. Calalas, on the other hand, filed a third-party complaint against Francisco Salva, the owner of the Isuzu truck.
Korte

The lower court rendered judgment against Salva as third-party defendant and absolved Calalas of liability, holding that it was the driver of the Isuzu truck
who was responsible for the accident. It took cognizance of another case (Civil Case No. 3490), filed by Calalas against Salva and Verena, for quasi-delict,
in which Branch 37 of the same court held Salva and his driver Verena jointly liable to Calalas for the damage to his jeepney. Rtcspped

On appeal to the Court of Appeals, the ruling of the lower court was reversed on the ground that Sungas cause of action was based on a contract of
carriage, not quasi-delict, and that the common carrier failed to exercise the diligence required under the Civil Code. The appellate court dismissed the third-
party complaint against Salva and adjudged Calalas liable for damages to Sunga. The dispositive portion of its decision reads:

WHEREFORE, the decision appealed from is hereby REVERSED and SET ASIDE, and another one is entered ordering defendant-appellee Vicente Calalas
to pay plaintiff-appellant:

(1) P50,000.00 as actual and compensatory damages;

(2) P50,000.00 as moral damages;
(3) P10,000.00 as attorneys fees; and
(4) P1,000.00 as expenses of litigation; and
(5) to pay the costs.

SO ORDERED.

Hence, this petition. Petitioner contends that the ruling in Civil Case No. 3490 that the negligence of Verena was the proximate cause of the accident
negates his liability and that to rule otherwise would be to make the common carrier an insurer of the safety of its passengers. He contends that the bumping
of the jeepney by the truck owned by Salva was a caso fortuito. Petitioner further assails the award of moral damages to Sunga on the ground that it is not
supported by evidence. Sdaadsc

The petition has no merit.

The argument that Sunga is bound by the ruling in Civil Case No. 3490 finding the driver and the owner of the truck liable for quasi-delict ignores the fact that
she was never a party to that case and, therefore, the principle of res judicata does not apply. Missdaa

Nor are the issues in Civil Case No. 3490 and in the present case the same. The issue in Civil Case No. 3490 was whether Salva and his driver Verena were
liable for quasi-delict for the damage caused to petitioners jeepney. On the other hand, the issue in this case is whether petitioner is liable on his contract of
carriage. The first, quasi-delict, also known as culpa aquiliana or culpa extra contractual, has as its source the negligence of the tortfeasor. The second,
breach of contract or culpa contractual, is premised upon the negligence in the performance of a contractual obligation.

Consequently, in quasi-delict, the negligence or fault should be clearly established because it is the basis of the action, whereas in breach of contract, the
action can be prosecuted merely by proving the existence of the contract and the fact that the obligor, in this case the common carrier, failed to transport his
passenger safely to his destination.[2] In case of death or injuries to passengers, Art. 1756 of the Civil Code provides that common carriers are presumed to
have been at fault or to have acted negligently unless they prove that they observed extraordinary diligence as defined in Arts. 1733 and 1755 of the Code.
This provision necessarily shifts to the common carrier the burden of proof. Slxmis

There is, thus, no basis for the contention that the ruling in Civil Case No. 3490, finding Salva and his driver Verena liable for the damage to petitioners
jeepney, should be binding on Sunga. It is immaterial that the proximate cause of the collision between the jeepney and the truck was the negligence of the
truck driver. The doctrine of proximate cause is applicable only in actions for quasi-delict, not in actions involving breach of contract. The doctrine is a device
for imputing liability to a person where there is no relation between him and another party. In such a case, the obligation is created by law itself. But, where
there is a pre-existing contractual relation between the parties, it is the parties themselves who create the obligation, and the function of the law is merely to
regulate the relation thus created. Insofar as contracts of carriage are concerned, some aspects regulated by the Civil Code are those respecting the
diligence required of common carriers with regard to the safety of passengers as well as the presumption of negligence in cases of death or injury to
passengers. It provides: Slxsc

Art. 1733. Common carriers, from the nature of their business and for reasons of public policy, are bound to observe extraordinary diligence in the vigilance
over the goods and for the safety of the passengers transported by them, according to all the circumstances of each case.

Such extraordinary diligence in the vigilance over the goods is further expressed in articles 1734, 1735, and 1746, Nos. 5,6, and 7, while the extraordinary
diligence for the safety of the passengers is further set forth in articles 1755 and 1756.

Art. 1755. A common carrier is bound to carry the passengers safely as far as human care and foresight can provide, using the utmost diligence of very
cautious persons, with due regard for all the circumstances.

Art. 1756. In case of death of or injuries to passengers, common carriers are presumed to have been at fault or to have acted negligently, unless they prove
that they observed extraordinary diligence as prescribed by articles 1733 and 1755.

In the case at bar, upon the happening of the accident, the presumption of negligence at once arose, and it became the duty of petitioner to prove that he
had to observe extraordinary diligence in the care of his passengers. Scslx

Now, did the driver of jeepney carry Sunga "safely as far as human care and foresight could provide, using the utmost diligence of very cautious persons,
with due regard for all the circumstances" as required by Art. 1755? We do not think so. Several factors militate against petitioners contention. Slx
First, as found by the Court of Appeals, the jeepney was not properly parked, its rear portion being exposed about two meters from the broad shoulders of
the highway, and facing the middle of the highway in a diagonal angle. This is a violation of the R.A. No. 4136, as amended, or the Land Transportation and
Traffic Code, which provides:

Sec. 54. Obstruction of Traffic. - No person shall drive his motor vehicle in such a manner as to obstruct or impede the passage of any vehicle, nor, while
discharging or taking on passengers or loading or unloading freight, obstruct the free passage of other vehicles on the highway.

Second, it is undisputed that petitioners driver took in more passengers than the allowed seating capacity of the jeepney, a violation of 32(a) of the same law.
It provides: Mesm

Exceeding registered capacity. - No person operating any motor vehicle shall allow more passengers or more freight or cargo in his vehicle than its
registered capacity.

The fact that Sunga was seated in an "extension seat" placed her in a peril greater than that to which the other passengers were exposed. Therefore, not
only was petitioner unable to overcome the presumption of negligence imposed on him for the injury sustained by Sunga, but also, the evidence shows he
was actually negligent in transporting passengers. Calrky

We find it hard to give serious thought to petitioners contention that Sungas taking an "extension seat" amounted to an implied assumption of risk. It is akin
to arguing that the injuries to the many victims of the tragedies in our seas should not be compensated merely because those passengers assumed a
greater risk of drowning by boarding an overloaded ferry. This is also true of petitioners contention that the jeepney being bumped while it was improperly
parked constitutes caso fortuito. A caso fortuito is an event which could not be foreseen, or which, though foreseen, was inevitable.[3] This requires that the
following requirements be present: (a) the cause of the breach is independent of the debtors will; (b) the event is unforeseeable or unavoidable; (c) the event
is such as to render it impossible for the debtor to fulfill his obligation in a normal manner, and (d) the debtor did not take part in causing the injury to the
creditor.[4] Petitioner should have foreseen the danger of parking his jeepney with its body protruding two meters into the highway. Kycalr

Finally, petitioner challenges the award of moral damages alleging that it is excessive and without basis in law. We find this contention well taken.

In awarding moral damages, the Court of Appeals stated: Kyle

Plaintiff-appellant at the time of the accident was a first-year college student in that school year 1989-1990 at the Silliman University, majoring in Physical
Education. Because of the injury, she was not able to enroll in the second semester of that school year. She testified that she had no more intention of
continuing with her schooling, because she could not walk and decided not to pursue her degree, major in Physical Education "because of my leg which has
a defect already."

Plaintiff-appellant likewise testified that even while she was under confinement, she cried in pain because of her injured left foot. As a result of her injury, the
Orthopedic Surgeon also certified that she has "residual bowing of the fracture side." She likewise decided not to further pursue Physical Education as her
major subject, because "my left leg x x x has a defect already."

Those are her physical pains and moral sufferings, the inevitable bedfellows of the injuries that she suffered. Under Article 2219 of the Civil Code, she is
entitled to recover moral damages in the sum of P50,000.00, which is fair, just and reasonable.

As a general rule, moral damages are not recoverable in actions for damages predicated on a breach of contract for it is not one of the items enumerated
under Art. 2219 of the Civil Code.[5] As an exception, such damages are recoverable: (1) in cases in which the mishap results in the death of a passenger,
as provided in Art. 1764, in relation to Art. 2206(3) of the Civil Code; and (2) in the cases in which the carrier is guilty of fraud or bad faith, as provided in Art.
2220.[6]

In this case, there is no legal basis for awarding moral damages since there was no factual finding by the appellate court that petitioner acted in bad faith in
the performance of the contract of carriage. Sungas contention that petitioners admission in open court that the driver of the jeepney failed to assist her in
going to a nearby hospital cannot be construed as an admission of bad faith. The fact that it was the driver of the Isuzu truck who took her to the hospital
does not imply that petitioner was utterly indifferent to the plight of his injured passenger. If at all, it is merely implied recognition by Verena that he was the
one at fault for the accident. Exsm

WHEREFORE, the decision of the Court of Appeals, dated March 31, 1995, and its resolution, dated September 11, 1995, are AFFIRMED, with the
MODIFICATION that the award of moral damages is DELETED.

SO ORDERED.

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.
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 Zuñiga, 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 Avanceña, JJ., concur.

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

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

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

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

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

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

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

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

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

Art. 2185. Unless there is proof to the contrary, it is presumed that a person driving a motor vehicle has been negligent if at the time of the mishap, he was
violating any traffic regulation.
Evidence for the plaintiff shows no proof that defendant was violating any traffic regulation. Hence, the presumption of negligence is not obtaining.

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

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

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

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

"x x x x x x x x x

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

"x x x x x x x x x

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

"x x x x x x x x x

"x x x the lower court correctly ruled that 'the application of the law on common carriers is not warranted and the presumption of fault or negligence on the
part of a common carrier in case of loss, damage or deterioration of good[s] during transport under [article] 1735 of the Civil Code is not availing.' x x x.

"Finally, We advert to the long established rule that conclusions and findings of fact of a trial court are entitled to great weight on appeal and should not be
disturbed unless for strong and valid reasons."[5]

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

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

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

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

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

The above conclusion nothwithstanding, GPS cannot escape from liability.

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

Respondent trucking corporation recognizes the existence of a contract of carriage between it and petitioners assured, and admits that the cargoes it has
assumed to deliver have been lost or damaged while in its custody. In such a situation, a default on, or failure of compliance with, the obligation in this case,
the delivery of the goods in its custody to the place of destination - gives rise to a presumption of lack of care and corresponding liability on the part of the
contractual obligor the burden being on him to establish otherwise. GPS has failed to do so.
Respondent driver, on the other hand, without concrete proof of his negligence or fault, may not himself be ordered to pay petitioner. The driver, not being a
party to the contract of carriage between petitioners principal and defendant, may not be held liable under the agreement. A contract can only bind the
parties who have entered into it or their successors who have assumed their personality or their juridical position.[17] Consonantly with the axiom res inter
alios acta aliis neque nocet prodest, such contract can neither favor nor prejudice a third person. Petitioners civil action against the driver can only be based
on culpa aquiliana, which, unlike culpa contractual, would require the claimant for damages to prove negligence or fault on the part of the defendant.[18]

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

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

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

WHEREFORE, the order, dated 30 April 1996, of the Regional Trial Court, Branch 66, of Makati City, and the decision, dated 10 June 1999, of the Court of
Appeals, are AFFIRMED only insofar as respondent Lambert M. Eroles is concerned, but said assailed order of the trial court and decision of the appellate
court are REVERSED as regards G.P. Sarmiento Trucking Corporation which, instead, is hereby ordered to pay FGU Insurance Corporation the value of the
damaged and lost cargoes in the amount of P204,450.00. No costs.

SO ORDERED.

AIR FRANCE, petitioner, Vs. RAFAEL CARRASCOSO and the HONORABLE COURT OF APPEALS, respondents.
Lichauco, Picazo and Agcaoili for petitioner. Bengzon Villegas and Zarraga for respondent R. Carrascoso.
The Court of First Instance of Manila 1 sentenced petitioner to pay respondent Rafael Carrascoso P25,000.00 by way of moral damages; P10,000.00 as
exemplary damages; P393.20 representing the difference in fare between first class and tourist class for the portion of the trip Bangkok-Rome, these various
amounts with interest at the legal rate, from the date of the filing of the complaint until paid; plus P3,000.00 for attorneys' fees; and the costs of suit.

On appeal,2 the Court of Appeals slightly reduced the amount of refund on Carrascoso's plane ticket from P393.20 to P383.10, and voted to affirm the
appealed decision "in all other respects", with costs against petitioner.

The case is now before us for review on certiorari.

The facts declared by the Court of Appeals as " fully supported by the evidence of record", are:

Plaintiff, a civil engineer, was a member of a group of 48 Filipino pilgrims that left Manila for Lourdes on March 30, 1958.

On March 28, 1958, the defendant, Air France, through its authorized agent, Philippine Air Lines, Inc., issued to plaintiff a "first class" round trip airplane
ticket from Manila to Rome. From Manila to Bangkok, plaintiff travelled in "first class", but at Bangkok, the Manager of the defendant airline forced plaintiff to
vacate the "first class" seat that he was occupying because, in the words of the witness Ernesto G. Cuento, there was a "white man", who, the Manager
alleged, had a "better right" to the seat. When asked to vacate his "first class" seat, the plaintiff, as was to be expected, refused, and told defendant's
Manager that his seat would be taken over his dead body; a commotion ensued, and, according to said Ernesto G. Cuento, "many of the Filipino passengers
got nervous in the tourist class; when they found out that Mr. Carrascoso was having a hot discussion with the white man [manager], they came all across to
Mr. Carrascoso and pacified Mr. Carrascoso to give his seat to the white man" (Transcript, p. 12, Hearing of May 26, 1959); and plaintiff reluctantly gave his
"first class" seat in the plane.3

1. The trust of the relief petitioner now seeks is that we review "all the findings" 4 of respondent Court of Appeals. Petitioner charges that respondent court
failed to make complete findings of fact on all the issues properly laid before it. We are asked to consider facts favorable to petitioner, and then, to overturn
the appellate court's decision.

Coming into focus is the constitutional mandate that "No decision shall be rendered by any court of record without expressing therein clearly and distinctly
the facts and the law on which it is based". 5 This is echoed in the statutory demand that a judgment determining the merits of the case shall state "clearly
and distinctly the facts and the law on which it is based"; 6 and that "Every decision of the Court of Appeals shall contain complete findings of fact on all
issues properly raised before it". 7

A decision with absolutely nothing to support it is a nullity. It is open to direct attack. 8 The law, however, solely insists that a decision state the "essential
ultimate facts" upon which the court's conclusion is drawn. 9 A court of justice is not hidebound to write in its decision every bit and piece of evidence 10
presented by one party and the other upon the issues raised. Neither is it to be burdened with the obligation "to specify in the sentence the facts" which a
party "considered as proved". 11 This is but a part of the mental process from which the Court draws the essential ultimate facts. A decision is not to be so
clogged with details such that prolixity, if not confusion, may result. So long as the decision of the Court of Appeals contains the necessary facts to warrant
its conclusions, it is no error for said court to withhold therefrom "any specific finding of facts with respect to the evidence for the defense". Because as this
Court well observed, "There is no law that so requires". 12 Indeed, "the mere failure to specify (in the decision) the contentions of the appellant and the
reasons for refusing to believe them is not sufficient to hold the same contrary to the requirements of the provisions of law and the Constitution". It is in this
setting that in Manigque, it was held that the mere fact that the findings "were based entirely on the evidence for the prosecution without taking into
consideration or even mentioning the appellant's side in the controversy as shown by his own testimony", would not vitiate the judgment. 13 If the court did
not recite in the decision the testimony of each witness for, or each item of evidence presented by, the defeated party, it does not mean that the court has
overlooked such testimony or such item of evidence. 14 At any rate, the legal presumptions are that official duty has been regularly performed, and that all
the matters within an issue in a case were laid before the court and passed upon by it. 15

Findings of fact, which the Court of Appeals is required to make, maybe defined as "the written statement of the ultimate facts as found by the court ... and
essential to support the decision and judgment rendered thereon". 16 They consist of the court's "conclusions" with respect to the determinative facts in
issue". 17 A question of law, upon the other hand, has been declared as "one which does not call for an examination of the probative value of the evidence
presented by the parties." 18

2. By statute, "only questions of law may be raised" in an appeal by certiorari from a judgment of the Court of Appeals. 19 That judgment is conclusive as to
the facts. It is not appropriately the business of this Court to alter the facts or to review the questions of fact. 20

With these guideposts, we now face the problem of whether the findings of fact of the Court of Appeals support its judgment.

3. Was Carrascoso entitled to the first class seat he claims?

It is conceded in all quarters that on March 28, 1958 he paid to and received from petitioner a first class ticket. But petitioner asserts that said ticket did not
represent the true and complete intent and agreement of the parties; that said respondent knew that he did not have confirmed reservations for first class on
any specific flight, although he had tourist class protection; that, accordingly, the issuance of a first class ticket was no guarantee that he would have a first
class ride, but that such would depend upon the availability of first class seats.

These are matters which petitioner has thoroughly presented and discussed in its brief before the Court of Appeals under its third assignment of error, which
reads: "The trial court erred in finding that plaintiff had confirmed reservations for, and a right to, first class seats on the "definite" segments of his journey,
particularly that from Saigon to Beirut". 21

And, the Court of Appeals disposed of this contention thus:

Defendant seems to capitalize on the argument that the issuance of a first-class ticket was no guarantee that the passenger to whom the same had been
issued, would be accommodated in the first-class compartment, for as in the case of plaintiff he had yet to make arrangements upon arrival at every station
for the necessary first-class reservation. We are not impressed by such a reasoning. We cannot understand how a reputable firm like defendant airplane
company could have the indiscretion to give out tickets it never meant to honor at all. It received the corresponding amount in payment of first-class tickets
and yet it allowed the passenger to be at the mercy of its employees. It is more in keeping with the ordinary course of business that the company should
know whether or riot the tickets it issues are to be honored or not.22

Not that the Court of Appeals is alone. The trial court similarly disposed of petitioner's contention, thus:

On the fact that plaintiff paid for, and was issued a "First class" ticket, there can be no question. Apart from his testimony, see plaintiff's Exhibits "A", "A-1",
"B", "B-1," "B-2", "C" and "C-1", and defendant's own witness, Rafael Altonaga, confirmed plaintiff's testimony and testified as follows:

Q. In these tickets there are marks "O.K." From what you know, what does this OK mean?

A. That the space is confirmed.

Q. Confirmed for first class?

A. Yes, "first class". (Transcript, p. 169)

xxx xxx xxx

Defendant tried to prove by the testimony of its witnesses Luis Zaldariaga and Rafael Altonaga that although plaintiff paid for, and was issued a "first class"
airplane ticket, the ticket was subject to confirmation in Hongkong. The court cannot give credit to the testimony of said witnesses. Oral evidence cannot
prevail over written evidence, and plaintiff's Exhibits "A", "A-l", "B", "B-l", "C" and "C-1" belie the testimony of said witnesses, and clearly show that the
plaintiff was issued, and paid for, a first class ticket without any reservation whatever.

Furthermore, as hereinabove shown, defendant's own witness Rafael Altonaga testified that the reservation for a "first class" accommodation for the plaintiff
was confirmed. The court cannot believe that after such confirmation defendant had a verbal understanding with plaintiff that the "first class" ticket issued to
him by defendant would be subject to confirmation in Hongkong. 23

We have heretofore adverted to the fact that except for a slight difference of a few pesos in the amount refunded on Carrascoso's ticket, the decision of the
Court of First Instance was affirmed by the Court of Appeals in all other respects. We hold the view that such a judgment of affirmance has merged the
judgment of the lower court. 24 Implicit in that affirmance is a determination by the Court of Appeals that the proceeding in the Court of First Instance was
free from prejudicial error and "all questions raised by the assignments of error and all questions that might have been raised are to be regarded as finally
adjudicated against the appellant". So also, the judgment affirmed "must be regarded as free from all error". 25 We reached this policy construction because
nothing in the decision of the Court of Appeals on this point would suggest that its findings of fact are in any way at war with those of the trial court. Nor was
said affirmance by the Court of Appeals upon a ground or grounds different from those which were made the basis of the conclusions of the trial court. 26

If, as petitioner underscores, a first-class-ticket holder is not entitled to a first class seat, notwithstanding the fact that seat availability in specific flights is
therein confirmed, then an air passenger is placed in the hollow of the hands of an airline. What security then can a passenger have? It will always be an
easy matter for an airline aided by its employees, to strike out the very stipulations in the ticket, and say that there was a verbal agreement to the contrary.
What if the passenger had a schedule to fulfill? We have long learned that, as a rule, a written document speaks a uniform language; that spoken word could
be notoriously unreliable. If only to achieve stability in the relations between passenger and air carrier, adherence to the ticket so issued is desirable. Such is
the case here. The lower courts refused to believe the oral evidence intended to defeat the covenants in the ticket.

The foregoing are the considerations which point to the conclusion that there are facts upon which the Court of Appeals predicated the finding that
respondent Carrascoso had a first class ticket and was entitled to a first class seat at Bangkok, which is a stopover in the Saigon to Beirut leg of the flight. 27
We perceive no "welter of distortions by the Court of Appeals of petitioner's statement of its position", as charged by petitioner. 28 Nor do we subscribe to
petitioner's accusation that respondent Carrascoso "surreptitiously took a first class seat to provoke an issue". 29 And this because, as petitioner states,
Carrascoso went to see the Manager at his office in Bangkok "to confirm my seat and because from Saigon I was told again to see the Manager". 30 Why,
then, was he allowed to take a first class seat in the plane at Bangkok, if he had no seat? Or, if another had a better right to the seat?
4. Petitioner assails respondent court's award of moral damages. Petitioner's trenchant claim is that Carrascoso's action is planted upon breach of contract;
that to authorize an award for moral damages there must be an averment of fraud or bad faith;31 and that the decision of the Court of Appeals fails to make
a finding of bad faith. The pivotal allegations in the complaint bearing on this issue are:

3. That ... plaintiff entered into a contract of air carriage with the Philippine Air Lines for a valuable consideration, the latter acting as general agents for and in
behalf of the defendant, under which said contract, plaintiff was entitled to, as defendant agreed to furnish plaintiff, First Class passage on defendant's plane
during the entire duration of plaintiff's tour of Europe with Hongkong as starting point up to and until plaintiff's return trip to Manila, ... .

4. That, during the first two legs of the trip from Hongkong to Saigon and from Saigon to Bangkok, defendant furnished to the plaintiff First Class
accommodation but only after protestations, arguments and/or insistence were made by the plaintiff with defendant's employees.

5. That finally, defendant failed to provide First Class passage, but instead furnished plaintiff only Tourist Class accommodations from Bangkok to Teheran
and/or Casablanca, ... the plaintiff has been compelled by defendant's employees to leave the First Class accommodation berths at Bangkok after he was
already seated.

6. That consequently, the plaintiff, desiring no repetition of the inconvenience and embarrassments brought by defendant's breach of contract was forced to
take a Pan American World Airways plane on his return trip from Madrid to Manila.32

xxx xxx xxx

2. That likewise, as a result of defendant's failure to furnish First Class accommodations aforesaid, plaintiff suffered inconveniences, embarrassments, and
humiliations, thereby causing plaintiff mental anguish, serious anxiety, wounded feelings, social humiliation, and the like injury, resulting in moral damages in
the amount of P30,000.00. 33

xxx xxx xxx

The foregoing, in our opinion, substantially aver: First, That there was a contract to furnish plaintiff a first class passage covering, amongst others, the
Bangkok-Teheran leg; Second, That said contract was breached when petitioner failed to furnish first class transportation at Bangkok; and Third, that there
was bad faith when petitioner's employee compelled Carrascoso to leave his first class accommodation berth "after he was already, seated" and to take a
seat in the tourist class, by reason of which he suffered inconvenience, embarrassments and humiliations, thereby causing him mental anguish, serious
anxiety, wounded feelings and social humiliation, resulting in moral damages. It is true that there is no specific mention of the term bad faith in the complaint.
But, the inference of bad faith is there, it may be drawn from the facts and circumstances set forth therein. 34 The contract was averred to establish the
relation between the parties. But the stress of the action is put on wrongful expulsion.

Quite apart from the foregoing is that (a) right the start of the trial, respondent's counsel placed petitioner on guard on what Carrascoso intended to prove:
That while sitting in the plane in Bangkok, Carrascoso was ousted by petitioner's manager who gave his seat to a white man; 35 and (b) evidence of bad
faith in the fulfillment of the contract was presented without objection on the part of the petitioner. It is, therefore, unnecessary to inquire as to whether or not
there is sufficient averment in the complaint to justify an award for moral damages. Deficiency in the complaint, if any, was cured by the evidence. An
amendment thereof to conform to the evidence is not even required. 36 On the question of bad faith, the Court of Appeals declared:

That the plaintiff was forced out of his seat in the first class compartment of the plane belonging to the defendant Air France while at Bangkok, and was
transferred to the tourist class not only without his consent but against his will, has been sufficiently established by plaintiff in his testimony before the court,
corroborated by the corresponding entry made by the purser of the plane in his notebook which notation reads as follows:

"First-class passenger was forced to go to the tourist class against his will, and that the captain refused to intervene",

and by the testimony of an eye-witness, Ernesto G. Cuento, who was a co-passenger. The captain of the plane who was asked by the manager of defendant
company at Bangkok to intervene even refused to do so. It is noteworthy that no one on behalf of defendant ever contradicted or denied this evidence for the
plaintiff. It could have been easy for defendant to present its manager at Bangkok to testify at the trial of the case, or yet to secure his disposition; but
defendant did neither. 37

The Court of appeals further stated —

Neither is there evidence as to whether or not a prior reservation was made by the white man. Hence, if the employees of the defendant at Bangkok sold a
first-class ticket to him when all the seats had already been taken, surely the plaintiff should not have been picked out as the one to suffer the consequences
and to be subjected to the humiliation and indignity of being ejected from his seat in the presence of others. Instead of explaining to the white man the
improvidence committed by defendant's employees, the manager adopted the more drastic step of ousting the plaintiff who was then safely ensconsced in
his rightful seat. We are strengthened in our belief that this probably was what happened there, by the testimony of defendant's witness Rafael Altonaga
who, when asked to explain the meaning of the letters "O.K." appearing on the tickets of plaintiff, said "that the space is confirmed for first class. Likewise,
Zenaida Faustino, another witness for defendant, who was the chief of the Reservation Office of defendant, testified as follows:

"Q How does the person in the ticket-issuing office know what reservation the passenger has arranged with you?

A They call us up by phone and ask for the confirmation." (t.s.n., p. 247, June 19, 1959)

In this connection, we quote with approval what the trial Judge has said on this point:
Why did the, using the words of witness Ernesto G. Cuento, "white man" have a "better right" to the seat occupied by Mr. Carrascoso? The record is silent.
The defendant airline did not prove "any better", nay, any right on the part of the "white man" to the "First class" seat that the plaintiff was occupying and for
which he paid and was issued a corresponding "first class" ticket.

If there was a justified reason for the action of the defendant's Manager in Bangkok, the defendant could have easily proven it by having taken the testimony
of the said Manager by deposition, but defendant did not do so; the presumption is that evidence willfully suppressed would be adverse if produced [Sec. 69,
par (e), Rules of Court]; and, under the circumstances, the Court is constrained to find, as it does find, that the Manager of the defendant airline in Bangkok
not merely asked but threatened the plaintiff to throw him out of the plane if he did not give up his "first class" seat because the said Manager wanted to
accommodate, using the words of the witness Ernesto G. Cuento, the "white man".38

It is really correct to say that the Court of Appeals in the quoted portion first transcribed did not use the term "bad faith". But can it be doubted that the recital
of facts therein points to bad faith? The manager not only prevented Carrascoso from enjoying his right to a first class seat; worse, he imposed his arbitrary
will; he forcibly ejected him from his seat, made him suffer the humiliation of having to go to the tourist class compartment - just to give way to another
passenger whose right thereto has not been established. Certainly, this is bad faith. Unless, of course, bad faith has assumed a meaning different from what
is understood in law. For, "bad faith" contemplates a "state of mind affirmatively operating with furtive design or with some motive of self-interest or will or for
ulterior purpose." 39

And if the foregoing were not yet sufficient, there is the express finding of bad faith in the judgment of the Court of First Instance, thus:

The evidence shows that the defendant violated its contract of transportation with plaintiff in bad faith, with the aggravating circumstances that defendant's
Manager in Bangkok went to the extent of threatening the plaintiff in the presence of many passengers to have him thrown out of the airplane to give the
"first class" seat that he was occupying to, again using the words of the witness Ernesto G. Cuento, a "white man" whom he (defendant's Manager) wished
to accommodate, and the defendant has not proven that this "white man" had any "better right" to occupy the "first class" seat that the plaintiff was
occupying, duly paid for, and for which the corresponding "first class" ticket was issued by the defendant to him.40

5. The responsibility of an employer for the tortious act of its employees need not be essayed. It is well settled in law. 41 For the willful malevolent act of
petitioner's manager, petitioner, his employer, must answer. Article 21 of the Civil Code says:

ART. 21. Any person who willfully causes loss or injury to another in a manner that is contrary to morals, good customs or public policy shall compensate the
latter for the damage.

In parallel circumstances, we applied the foregoing legal precept; and, we held that upon the provisions of Article 2219 (10), Civil Code, moral damages are
recoverable. 42

6. A contract to transport passengers is quite different in kind and degree from any other contractual relation. 43 And this, because of the relation which an
air-carrier sustains with the public. Its business is mainly with the travelling public. It invites people to avail of the comforts and advantages it offers. The
contract of air carriage, therefore, generates a relation attended with a public duty. Neglect or malfeasance of the carrier's employees, naturally, could give
ground for an action for damages.

Passengers do not contract merely for transportation. They have a right to be treated by the carrier's employees with kindness, respect, courtesy and due
consideration. They are entitled to be protected against personal misconduct, injurious language, indignities and abuses from such employees. So it is, that
any rule or discourteous conduct on the part of employees towards a passenger gives the latter an action for damages against the carrier. 44

Thus, "Where a steamship company 45 had accepted a passenger's check, it was a breach of contract and a tort, giving a right of action for its agent in the
presence of third persons to falsely notify her that the check was worthless and demand payment under threat of ejection, though the language used was not
insulting and she was not ejected." 46 And this, because, although the relation of passenger and carrier is "contractual both in origin and nature"
nevertheless "the act that breaks the contract may be also a tort". 47 And in another case, "Where a passenger on a railroad train, when the conductor came
to collect his fare tendered him the cash fare to a point where the train was scheduled not to stop, and told him that as soon as the train reached such point
he would pay the cash fare from that point to destination, there was nothing in the conduct of the passenger which justified the conductor in using insulting
language to him, as by calling him a lunatic," 48 and the Supreme Court of South Carolina there held the carrier liable for the mental suffering of said
passenger.1awphîl.nèt

Petitioner's contract with Carrascoso is one attended with public duty. The stress of Carrascoso's action as we have said, is placed upon his wrongful
expulsion. This is a violation of public duty by the petitioner air carrier — a case of quasi-delict. Damages are proper.

7. Petitioner draws our attention to respondent Carrascoso's testimony, thus —

Q You mentioned about an attendant. Who is that attendant and purser?

A When we left already — that was already in the trip — I could not help it. So one of the flight attendants approached me and requested from me my ticket
and I said, What for? and she said, "We will note that you transferred to the tourist class". I said, "Nothing of that kind. That is tantamount to accepting my
transfer." And I also said, "You are not going to note anything there because I am protesting to this transfer".

Q Was she able to note it?

A No, because I did not give my ticket.

Q About that purser?

A Well, the seats there are so close that you feel uncomfortable and you don't have enough leg room, I stood up and I went to the pantry that was next to me
and the purser was there. He told me, "I have recorded the incident in my notebook." He read it and translated it to me — because it was recorded in French
— "First class passenger was forced to go to the tourist class against his will, and that the captain refused to intervene."

Mr. VALTE —
I move to strike out the last part of the testimony of the witness because the best evidence would be the notes. Your Honor.

COURT —

I will allow that as part of his testimony. 49

Petitioner charges that the finding of the Court of Appeals that the purser made an entry in his notebook reading "First class passenger was forced to go to
the tourist class against his will, and that the captain refused to intervene" is predicated upon evidence [Carrascoso's testimony above] which is incompetent.
We do not think so. The subject of inquiry is not the entry, but the ouster incident. Testimony on the entry does not come within the proscription of the best
evidence rule. Such testimony is admissible. 49a

Besides, from a reading of the transcript just quoted, when the dialogue happened, the impact of the startling occurrence was still fresh and continued to be
felt. The excitement had not as yet died down. Statements then, in this environment, are admissible as part of the res gestae. 50 For, they grow "out of the
nervous excitement and mental and physical condition of the declarant". 51 The utterance of the purser regarding his entry in the notebook was
spontaneous, and related to the circumstances of the ouster incident. Its trustworthiness has been guaranteed. 52 It thus escapes the operation of the
hearsay rule. It forms part of the res gestae.

At all events, the entry was made outside the Philippines. And, by an employee of petitioner. It would have been an easy matter for petitioner to have
contradicted Carrascoso's testimony. If it were really true that no such entry was made, the deposition of the purser could have cleared up the matter.

We, therefore, hold that the transcribed testimony of Carrascoso is admissible in evidence.

8. Exemplary damages are well awarded. The Civil Code gives the court ample power to grant exemplary damages — in contracts and quasi- contracts. The
only condition is that defendant should have "acted in a wanton, fraudulent, reckless, oppressive, or malevolent manner." 53 The manner of ejectment of
respondent Carrascoso from his first class seat fits into this legal precept. And this, in addition to moral damages.54

9. The right to attorney's fees is fully established. The grant of exemplary damages justifies a similar judgment for attorneys' fees. The least that can be said
is that the courts below felt that it is but just and equitable that attorneys' fees be given. 55 We do not intend to break faith with the tradition that discretion
well exercised — as it was here — should not be disturbed.

10. Questioned as excessive are the amounts decreed by both the trial court and the Court of Appeals, thus: P25,000.00 as moral damages; P10,000.00, by
way of exemplary damages, and P3,000.00 as attorneys' fees. The task of fixing these amounts is primarily with the trial court. 56 The Court of Appeals did
not interfere with the same. The dictates of good sense suggest that we give our imprimatur thereto. Because, the facts and circumstances point to the
reasonableness thereof.57

On balance, we say that the judgment of the Court of Appeals does not suffer from reversible error. We accordingly vote to affirm the same. Costs against
petitioner. So ordered.

G.R. No. 84698 February 4, 1992 PHILIPPINE SCHOOL OF BUSINESS ADMINISTRATION, JUAN D. LIM,
BENJAMIN P. PAULINO, ANTONIO M. MAGTALAS, COL. PEDRO SACRO and LT. M. SORIANO, petitioners, vs.
COURT OF APPEALS, HON. REGINA ORDOÑEZ-BENITEZ, in her capacity as Presiding Judge of Branch 47,
Regional Trial Court, Manila, SEGUNDA R. BAUTISTA and ARSENIA D. BAUTISTA, respondents.
A stabbing incident on 30 August 1985 which caused the death of Carlitos Bautista while on the second-floor premises of the Philippine School of Business
Administration (PSBA) prompted the parents of the deceased to file suit in the Regional Trial Court of Manila (Branch 47) presided over by Judge (now Court
of Appeals justice) Regina Ordoñez-Benitez, for damages against the said PSBA and its corporate officers. At the time of his death, Carlitos was enrolled in
the third year commerce course at the PSBA. It was established that his assailants were not members of the school's academic community but were
elements from outside the school.

Specifically, the suit impleaded the PSBA and the following school authorities: Juan D. Lim (President), Benjamin P. Paulino (Vice-President), Antonio M.
Magtalas (Treasurer/Cashier), Col. Pedro Sacro (Chief of Security) and a Lt. M. Soriano (Assistant Chief of Security). Substantially, the plaintiffs (now private
respondents) sought to adjudge them liable for the victim's untimely demise due to their alleged negligence, recklessness and lack of security precautions,
means and methods before, during and after the attack on the victim. During the proceedings a quo, Lt. M. Soriano terminated his relationship with the other
petitioners by resigning from his position in the school.

Defendants a quo (now petitioners) sought to have the suit dismissed, alleging that since they are presumably sued under Article 2180 of the Civil Code, the
complaint states no cause of action against them, as jurisprudence on the subject is to the effect that academic institutions, such as the PSBA, are beyond
the ambit of the rule in the afore-stated article.

The respondent trial court, however, overruled petitioners' contention and thru an order dated 8 December 1987, denied their motion to dismiss. A
subsequent motion for reconsideration was similarly dealt with by an order dated 25 January 1988. Petitioners then assailed the trial court's disposition
before the respondent appellate court which, in a decision * promulgated on 10 June 1988, affirmed the trial court's orders. On 22 August 1988, the
respondent appellate court resolved to deny the petitioners' motion for reconsideration. Hence, this petition.

At the outset, it is to be observed that the respondent appellate court primarily anchored its decision on the law of quasi-delicts, as enunciated in Articles
2176 and 2180 of the Civil Code. 1 Pertinent portions of the appellate court's now assailed ruling state:

Article 2180 (formerly Article 1903) of the Civil Code is an adoption from the old Spanish Civil Code. The comments of Manresa and learned authorities on its
meaning should give way to present day changes. The law is not fixed and flexible (sic); it must be dynamic. In fact, the greatest value and significance of
law as a rule of conduct in (sic) its flexibility to adopt to changing social conditions and its capacity to meet the new challenges of progress.
Construed in the light of modern day educational system, Article 2180 cannot be construed in its narrow concept as held in the old case of Exconde vs.
Capuno 2 and Mercado vs. Court of Appeals; 3 hence, the ruling in the Palisoc 4 case that it should apply to all kinds of educational institutions, academic or
vocational.

At any rate, the law holds the teachers and heads of the school staff liable unless they relieve themselves of such liability pursuant to the last paragraph of
Article 2180 by "proving that they observed all the diligence to prevent damage." This can only be done at a trial on the merits of the case. 5

While we agree with the respondent appellate court that the motion to dismiss the complaint was correctly denied and the complaint should be tried on the
merits, we do not however agree with the premises of the appellate court's ruling.

Article 2180, in conjunction with Article 2176 of the Civil Code, establishes the rule of in loco parentis. This Court discussed this doctrine in the afore-cited
cases of Exconde, Mendoza, Palisoc and, more recently, in Amadora vs. Court of Appeals. 6 In all such cases, it had been stressed that the law (Article
2180) plainly provides that the damage should have been caused or inflicted by pupils or students of he educational institution sought to be held liable for the
acts of its pupils or students while in its custody. However, this material situation does not exist in the present case for, as earlier indicated, the assailants of
Carlitos were not students of the PSBA, for whose acts the school could be made liable.

However, does the appellate court's failure to consider such material facts mean the exculpation of the petitioners from liability? It does not necessarily
follow.

When an academic institution accepts students for enrollment, there is established a contract between them, resulting in bilateral obligations which both
parties are bound to comply with. 7 For its part, the school undertakes to provide the student with an education that would presumably suffice to equip him
with the necessary tools and skills to pursue higher education or a profession. On the other hand, the student covenants to abide by the school's academic
requirements and observe its rules and regulations.

Institutions of learning must also meet the implicit or "built-in" obligation of providing their students with an atmosphere that promotes or assists in attaining
its primary undertaking of imparting knowledge. Certainly, no student can absorb the intricacies of physics or higher mathematics or explore the realm of the
arts and other sciences when bullets are flying or grenades exploding in the air or where there looms around the school premises a constant threat to life
and limb. Necessarily, the school must ensure that adequate steps are taken to maintain peace and order within the campus premises and to prevent the
breakdown thereof.

Because the circumstances of the present case evince a contractual relation between the PSBA and Carlitos Bautista, the rules on quasi-delict do not really
govern. 8 A perusal of Article 2176 shows that obligations arising from quasi-delicts or tort, also known as extra-contractual obligations, arise only between
parties not otherwise bound by contract, whether express or implied. However, this impression has not prevented this Court from determining the existence
of a tort even when there obtains a contract. In Air France vs. Carrascoso (124 Phil. 722), the private respondent was awarded damages for his unwarranted
expulsion from a first-class seat aboard the petitioner airline. It is noted, however, that the Court referred to the petitioner-airline's liability as one arising from
tort, not one arising from a contract of carriage. In effect, Air France is authority for the view that liability from tort may exist even if there is a contract, for the
act that breaks the contract may be also a tort. (Austro-America S.S. Co. vs. Thomas, 248 Fed. 231).

This view was not all that revolutionary, for even as early as 1918, this Court was already of a similar mind. In Cangco vs. Manila Railroad (38 Phil. 780), Mr.
Justice Fisher elucidated thus:

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

Immediately what comes to mind is the chapter of the Civil Code on Human Relations, particularly Article 21, which provides:

Any person who wilfully causes loss or injury to another in a manner that is contrary to morals, good custom or public policy shall compensate the latter for
the damage. (emphasis supplied).

Air France penalized the racist policy of the airline which emboldened the petitioner's employee to forcibly oust the private respondent to cater to the comfort
of a white man who allegedly "had a better right to the seat." In Austro-American, supra, the public embarrassment caused to the passenger was the
justification for the Circuit Court of Appeals, (Second Circuit), to award damages to the latter. From the foregoing, it can be concluded that should the act
which breaches a contract be done in bad faith and be violative of Article 21, then there is a cause to view the act as constituting a quasi-delict.

In the circumstances obtaining in the case at bar, however, there is, as yet, no finding that the contract between the school and Bautista had been breached
thru the former's negligence in providing proper security measures. This would be for the trial court to determine. And, even if there be a finding of
negligence, the same could give rise generally to a breach of contractual obligation only. Using the test of Cangco, supra, the negligence of the school would
not be relevant absent a contract. In fact, that negligence becomes material only because of the contractual relation between PSBA and Bautista. In other
words, a contractual relation is a condition sine qua non to the school's liability. The negligence of the school cannot exist independently of the contract,
unless the negligence occurs under the circumstances set out in Article 21 of the Civil Code.

This Court is not unmindful of the attendant difficulties posed by the obligation of schools, above-mentioned, for conceptually a school, like a common carrier,
cannot be an insurer of its students against all risks. This is specially true in the populous student communities of the so-called "university belt" in Manila
where there have been reported several incidents ranging from gang wars to other forms of hooliganism. It would not be equitable to expect of schools to
anticipate all types of violent trespass upon their premises, for notwithstanding the security measures installed, the same may still fail against an individual or
group determined to carry out a nefarious deed inside school premises and environs. Should this be the case, the school may still avoid liability by proving
that the breach of its contractual obligation to the students was not due to its negligence, here statutorily defined to be the omission of that degree of
diligence which is required by the nature of the obligation and corresponding to the circumstances of persons, time and place. 9

As the proceedings a quo have yet to commence on the substance of the private respondents' complaint, the record is bereft of all the material facts.
Obviously, at this stage, only the trial court can make such a determination from the evidence still to unfold.
WHEREFORE, the foregoing premises considered, the petition is DENIED. The court of origin (RTC, Manila, Br. 47) is hereby ordered to continue
proceedings consistent with this ruling of the Court. Costs against the petitioners.

JANSSEN PHARMACEUTICA, Petitioner, - versus - BENJAMIN A. SILAYRO, Respondent.

This is a petition for review on certiorari under Rule 45 of the Rules of Court, assailing the Decision,[1] dated 8 February 2006, promulgated by the Court of
Appeals in CA-G.R. SP No. 81983, reversing the Decision[2] dated 7 May 2003 of the National Labor Relations Commission (NLRC) in NLRC Case No. V-
000880-99. The Court of Appeals, in its assailed Decision, adjudged the dismissal of respondent Benjamin Silayro by petitioner Jansen Pharmaceutica as
illegal for being an excessive and unwarranted penalty. The appellate court determined that the suspension of the respondent for five months without salary
as just penalty.

Petitioner is the division of Johnson & Johnson Philippines Inc. engaged in the sale and manufacture of pharmaceutical products. In 1989, petitioner
employed respondent as Territory/Medical Representative. During his employment, respondent received from petitioner several awards and citations for the
years 1990 to 1997, such as Territory Representative Award, Quota Buster Award, Sipag Award, Safety Drivers Award, Ring Club Award, and a Nomination
as one of the Ten Outstanding Philippine Salesmen.[3] On the dark side, however, respondent was also investigated for, and in some cases found guilty of,
several administrative charges.

Petitioner alleged that in 1994, respondent was found guilty of granting unauthorized premium/free goods to and unauthorized pull-outs from customers.[4]
Petitioner failed to attach records to support its allegation and to explain the nature of and the circumstance surrounding these infractions. Respondent, for
his part, admitted to have been guilty of granting unauthorized premium/free goods, but vehemently denied violating the rule on, or having been charged
with, unauthorized pull-outs from customers.[5]

The respondent was also investigated for dishonesty in connection with the Rewards of Learning (ROL) test. The ROL test is a one-page take-home
examination, with two questions to be answered by an enumeration of the standards of performance by which territory representatives are rated as well as
the sales competencies expected of territory representatives.[6] It was discovered that respondents answers were written in the handwriting of a co-
employee, Joedito Gasendo. Petitioners management then sent respondent a Memo dated 27 July 1998 requiring an explanation for the incident.[7]

Soon thereafter, petitioner sent a subsequent Memo dated 20 August 1998 to respondent requiring the latter to explain his delay in submitting process
reports.[8]

On 8 September 1998, respondent submitted a written explanation to the petitioner stating that the delay in the submission of reports was caused by the
deaths of his grandmother and his aunt, and the hospitalization of his mother. He also averred that he had asked his co-employee Joedito Gasendo to write
his answers to the ROL test because at the time when the examination was due, he already needed to leave to see his father-in-law, who was suffering from
cancer and confined in a hospital in Manila.[9]

Respondent was sent a new Memorandum dated 20 October 1998 for his delayed submission of process reports due on 14 October 1998.[10]

Respondent was issued another Memo also dated 20 October 1998 regarding the discrepancies between the number of product samples recorded in his
Daily/Weekly Coverage Report (DCR) and the number of product samples found in his possession during the 14 October 1998 audit.[11] The actual number
of sample products found in respondents possession exceeded the number of sample products he reported to petitioner.

Respondent explained, through a Response Memo dated 24 October 1998, that he failed to count the quantity of samples when they were placed in his
custody. Thus, he failed to take note of the excess samples from previous months. He, likewise, admitted to committing errors in posting the samples that he
distributed to some doctors during the months of August and September 1998.[12]

On 20 November 1998, petitioner issued a Notice of Disciplinary Action finding respondent guilty of the following offenses (1) delayed submission of process
reports, for which he was subjected to a one-day suspension without pay, effective 24 November 1998;[13] and (2) cheating in his ROL test, for which he
was subjected again to a one-day suspension.[14]

On the same date, petitioner likewise issued a Notice of Preventive Suspension against respondent for Dishonesty in Accomplishing Other Accountable
Documents in connection with the discrepancy between the quantities of sample products in respondents report and the petitioners audit for the September
1998 cycle. In addition, the Notice directed the respondent to surrender to the petitioner the car, promotional materials, and all other accountabilities on or
before 25 November 1998. It was also stated therein that since this was respondents third offense for the year, he could be dismissed under Section 9.5.5(c)
of petitioners Code of Conduct.[15]

Before 25 November 1998 or the date given by petitioner for respondent to surrender all his accountabilities, a Memorandum dated 24 November 1998 was
issued to respondent for the following alleged infractions: (1) Failure to turn over company vehicles assigned after the receipt of instruction to that effect from
superiors, and (2) Refusing or neglecting to obey Company management orders to perform work without justifiable reason.[16]

Respondent wrote a letter dated 26 November 1998 addressed to the petitioner explaining that he failed to surrender his accountabilities because he thought
that this was tantamount to an admission that the charges against him were true and, thus, could result in his termination from the job.[17]

An administrative investigation of the respondents case was held on 3 December 1998. Respondent was accompanied by union representative Lyndon Lim.
The parties discussed matters concerning the discrepancy in respondents report and petitioners audit on the number of product samples in respondents
custody in September 1998. They were also able to clarify among themselves respondents failure to return his accountabilities and, as a consequence,
respondent promised to surrender the same. They further agreed that another administrative hearing will be set, but no further hearings were held.[18]

In line with his promise to surrender his accountabilities, respondent wrote a letter, dated 9 December 1998, asking his superiors where he should return his
accountabilities.[19] Union representative Dominic Regoro also made requests, on behalf of respondent, for instructions, to whom petitioners District
Supervisor Raymond Bernardo replied via electronic mail on 16 December 1998. According to Bernardo, he was still in the process of making arrangements
with Ruben Cauton, petitioners National Sales Manager, in connection with the return of respondents accountabilities.[20] Respondent maintained that he
did not receive any instructions from petitioner.

In a letter dated 28 December 1998, petitioner terminated the services of respondent.[21] Petitioner found respondent guilty of dishonesty in accomplishing
the report on the number of product samples in his possession and failing to return the company vehicle and his other accountabilities in violation of Sections
9.2.9 and 9.2.4 of the Code of Conduct.[22] Petitioner also found respondent to be a habitual offender whose previous offenses included: (1) Granting
unauthorized premium/free goods to customer in 1994; (2) Unauthorized pull-out of stocks from customer in 1994; (3) Delay in submission of reports despite
oral admonition and written reprimand in 1998; and (4) Dishonesty in accomplishing other accountable documents or instruments (in connection with the
ROL test) in 1998.

Even after respondents termination from employment, there was still contact between petitioner and respondent regarding the latters accountabilities still in
his possession. Sometime in early 1999, in a telephone conversation, respondent informed petitioner that he will return his accountabilities only upon
demand from the proper governmental agency.[23] A demand letter dated 3 February 1999 was sent to respondent by petitioner ordering the return of the
company car, promotional materials, samples, a slide projector, product manuals, product monographs, and training binders.[24]

On 14 January 1999, respondent filed a Complaint[25] against petitioner and its officers, Rafael Besa, Rueben Cauton, Victor Lapid, and Raymond Bernardo
before the Sub-Regional Arbitration Branch of the NLRC in Iloilo City for (a) Unfair Labor Practice; (b) Illegal Dismissal; (c) Reimbursement of operating and
representation expenses under expense reports for October and November 1998; (d) Nonpayment of salary, bonuses and other earned benefits for
December 1998 like rice allocation, free goods allocation, etc.; and (e) Damages and attorneys fees.

In a Decision dated 31 August 1999, the Labor Arbiter ruled that respondent committed infractions which breached company rules, and which were sufficient
grounds for dismissal. However, the Labor Arbiter found the penalty of dismissal to be too harsh considering the respondents circumstances and ordered his
reinstatement without payment of back wages.[26] The dispositive portion of the Decision states that:

WHEREFORE, premises considered, judgment is rendered ordering respondents firm to reinstate complainant to his former or equivalent position without
backwages.

All other claims are hereby dismissed.[27]

On appeal, the NLRC modified the Decision of the Labor Arbiter by declaring that reinstatement was improper where respondent was dismissed for just and
authorized causes.[28] In a Decision dated 7 May 2003, it pronounced that:

WHEREFORE, premises considered, complainants appeal is hereby DISMISSED. The decision of the Labor Arbiter is hereby AFFIRMED with
MODIFICATION deleting the award of reinstatement.[29]

Respondent filed a Petition for Certiorari under Rule 65 of the Rules of Court before the Court of Appeals. In reversing the Decision of the NLRC, the
appellate court pronounced that the causes were insufficient for the dismissal of respondent since respondents acts were not motivated by dishonesty, but
were caused by mere inadvertence. Thus, it concluded that the offenses committed by respondent merited only a penalty of suspension for five months
without pay. The appellate court also noted that petitioner committed some lapses in its compliance with procedural due process. It further took into account
the successive deaths and sickness in respondents family.[30] The dispositive part of the decision reads:

WHEREFORE, premises considered, the petition is GRANTED. Thus, the Decision and Resolution respectively dated 7 May 2003 and 14 October 2003 are
hereby SET ASIDE. Accordingly, Judgment is hereby rendered:

a) Declaring petitioners dismissal to be illegal;

b) Reinstating petitioner to the same or equivalent position without loss of seniority rights and other privileges;
c) Ordering the payment of backwages (inclusive of allowances and other benefits or their monetary equivalent), computed from the time compensation
was withheld up to the time of actual reinstatement; Provided that, from such computed amount of backwages, a deduction of five (5) months (sic) salary be
made to serve as penalty; and
d) If reinstatement is no longer feasible, ordering the payment of separation pay comprising of one month salary per year of service computed
from date of employment up to finality of this decision, in addition to the award of backwages.

Let the records of this case be remanded to the Labor Ariter a quo for the proper computation of the foregoing.[31]

Hence, this Petition, wherein the following issues were raised:

I
WHETHER OR NOT THE COURT OF APPEALS GRAVELY ERRED IN REVERSING THE UNIFORM FACTUAL FINDINGS OF THE NLRC AND THE
LABOR ARBITER.
II
WHETHER OR NOT RESPONDENTS DISMISSAL FOR HIS FAILURE TO TRUTHFULLY ACCOMPLISH REPORTS, DELIBERATE AND REPEATED
FAILURE TO SUBMIT REQUIRED REPORTS AND HIS DELIBERATE DISREGARD OF HIS SUPERIORS ORDER TO SURRENDER HIS
ACCOUNTABILITIES TANTAMOUNT TO DISHONESTY, GROSS AND HABITUAL NEGLECT OF DUTY, WILLFUL DISOBEDIENCE OF COMPANY
POLICY, AND BREACH OF TRUST AND CONFIDENCE REPOSED IN HIM BY THE COMPANY UNDER THE PROVISIONS OF THE LABOR CODE WAS
LEGAL, VALID AND CARRIED OUT WITH DUE PROCESS

III
WHETHER OR NOT THE TOTALITY OF INFRACTIONS COMMITTED BY RESPONDENT FURTHER MERITED HIS TERMINATION FROM THE
COMPANYS EMPLOY

IV
WHETHER OR NOT THE RESPONDENT HAS ANY BASIS FOR CLAIMING AN AWARD OF REINSTATEMENT AND BACKWAGES.[32]

This petition is without merit.

The main question in this case is whether or not sufficient grounds existed for the dismissal of the respondent. To constitute a valid dismissal from
employment, two requisites must concur: (1) the dismissal must be for any of the causes provided in Article 282 of the Labor Code; and, (2) the employee
must be given an opportunity to be heard and to defend himself.[33]
 In this case, the Court must re-examine the factual findings of the Court of Appeals, as well as the contrary findings of the NLRC and Labor Arbiter. While it
is a recognized principle that this Court is not a trier of facts and does not normally embark in the evaluation of evidence adduced during trial, this rule allows
for exceptions.[34] One of these exceptions covers instances when the findings of fact of the trial court, or in this case of the quasi-judicial agencies
concerned, are conflicting or contradictory with those of the Court of Appeals.[35]

In the termination letter dated 28 December 1998, respondent was dismissed on the ground that he committed the following offenses: (1) dishonesty in
accomplishing the report on the number of product samples in his possession; and (2) his failure to return the company vehicle and other accountabilities in
violation of Sections 9.2.9 and 9.2.4 of the Code of Conduct. In addition to these offenses, petitioner took into account that the petitioner committed the
following infractions in the past: (1) granting unauthorized premium/free goods in 1994; (2) unauthorized pull-outs from customers in 1995; (3) cheating
during the ROL exam in 1998; and (4) three infractions of delayed process reports in 1998.

Initially, the Court must determine whether the respondent violated the Code of Conduct with his dishonesty in accomplishing his report on product samples
and/or failure to return the company vehicle and other such accountabilities. The records of this case negate a finding of such culpability on the part of the
respondent.

Petitioner failed to present evidence that respondent was guilty of dishonesty in accomplishing the DCR, wherein he was supposed to indicate the number of
product samples in his possession for August and September 1998. Petitioner merely relied on the fact that the number of product samples the respondent
reported was incorrect, and the number of product samples later found in his possession exceeded that which he reported. Respondent admitted that when
the product samples had arrived, he failed to check if the number of product samples indicated in the DCR corresponded to the number actually delivered
and that he made mistakes in posting the product samples distributed during the period in question.

In termination cases, the burden of proof rests with the employer to show that the dismissal is for just and valid cause. Failure to do so would necessarily
mean that the dismissal was not justified and therefore was illegal.[36] Dishonesty is a serious charge, which the employer must adequately prove,
especially when it is the basis for termination.

In this case, petitioner had not been able to identify an act of dishonesty, misappropriation, or any illicit act, which the respondent may have committed in
connection with the erroneously reported product samples. While respondent was admittedly negligent in filling out his August and September 1998 DCR, his
errors alone are insufficient evidence of a dishonest purpose. Since fraud implies willfulness or wrongful intent, the innocent non-disclosure of or inadvertent
errors in declaring facts by the employee to the employer will not constitute a just cause for the dismissal of the employee.[37] In addition, the subsequent
acts of respondent belie a design to misappropriate product samples. So as to escape any liability, respondent could have easily just submitted for audit only
the number of product samples which he reported. Instead, respondent brought all the product samples in his custody during the audit and, afterwards,
honestly admitted to his negligence. Negligence is defined as the failure to exercise the standard of care that a reasonably prudent person would have
exercised in a similar situation.[38] To this Court, respondent did not commit any willful violation, rather he merely failed to exercise the standard care
required of a territory representative to carefully count the number of product samples delivered to him in August and September 1998.

In the Memorandum dated 20 November 1998, petitioner ordered respondent to return the company vehicle and all other accountabilities by 25 November
1998. Petitioner issued its first notice on 24 November 1998, even before respondent was obligated to return his accountabilities. Hence, respondent could
not yet have committed any offense when petitioner issued the first notice. Confused by petitioners arbitrary action, respondent did not return his
accountabilities, but immediately explained in a letter dated 26 November 1998 his reasons for failing to return his accountabilities on 25 November 1998 as
previously ordered by the petitioner.

During the company hearing held on 3 December 1998, respondent offered to return his accountabilities in accordance with the instructions to be given by
the petitioner. In a letter dated 9 December 1998 addressed to the petitioner, respondent reiterated his request for instructions on the return of his
accountabilities. There is no showing that petitioner replied to respondents letter. The letter written by petitioners District Supervisor Raymond Bernardo to
union representative Dominic Regoro sent through electronic mail on 16 December 1998 still provided no definite instructions to the respondent for the return
of his accountabilities. This is the last communication between the parties on the matter until petitioner wrongfully dismissed the respondent on 28 December
1998 for deliberately refusing to surrender his accountabilities, among other grounds. The petitioner does not refer in its pleadings to any instance after the
company hearing was held and before the respondent was dismissed wherein it had finally instructed the respondent as to how he may turn over his
accountabilities. Per petitioners pleadings, belated demands for the surrender of respondents accountabilities were made in January and February 1999,
after respondent had already been dismissed. Clearly, the charge against respondent of insubordination to the petitioners instructions for the surrender of his
accountabilities was unfounded since the respondent was still waiting for said instructions when he was dismissed.

Moreover, petitioner failed to observe procedural due process in connection with the aforementioned charge. Section 2(d) of Rule 1 of The Implementing
Rules of Book VI states that:

For termination of employment based on just causes as defined in Article 282 of the Labor Code:

(i) A written notice served on the employee specifying the ground or grounds for termination, and giving said employee reasonable opportunity
within which to explain his side.
(ii) A hearing or conference during which the employee concerned, with the assistance of counsel if he so desires is given opportunity to respond to
the charge, present his evidence, or rebut the evidence presented against him.
(iii) A written notice of termination served on the employee, indicating that upon due consideration of all the circumstances, grounds have been
established to justify his termination. (Emphases supplied.)

From the aforecited provision, it is implicit that these requirements afford the employee an opportunity to explain his side, respond to the charge, present his
or her evidence and rebut the evidence presented against him or her.

The superficial compliance with two notices and a hearing in this case cannot be considered valid where these notices were issued and the hearing made
before an offense was even committed. The first notice, issued on 24 November 1998, was premature since respondent was obliged to return his
accountabilities only on 25 November 1998. As respondents preventive suspension began on 25 November 1998, he was still performing his duties as
territory representative the day before, which required the use of the company car and other company equipment. During the administrative hearing on 3
December 1998, both parties clarified the confusion caused by the petitioners premature notice and agreed that respondent would surrender his
accountabilities as soon as the petitioner gave its instructions. Since petitioners ostensible compliance with the procedural requirements of notice and
hearing took place before an offense was even committed, respondent was robbed of his rights to explain his side, to present his evidence and rebut what
was presented against him, rights ensured by the proper observance of procedural due process.
Of all the past offenses that were attributed to the respondent, he contests having committed the infraction involving the unauthorized pull-outs from
customers, allegedly made in 1994. Again, the records show that petitioner did not provide any proof to support said charge. It must be emphasized at this
point that the onus probandi to prove the lawfulness of the dismissal rests with the employer,[39] and in light of petitioners failure to discharge the same, the
alleged offense cannot be given any credence by this Court. As for the three remaining violations, it is unquestioned that respondent had committed and had
already been punished for them.

While a penalty may no longer be imposed on offenses for which respondent has already been punished, these offenses, among other offenses, may still be
used as justification for an employees dismissal. Hence, this Court must now take into consideration all the offenses that respondent committed during his
employment and decide whether these infractions, taken together, constitute a valid cause for dismissal.

Undoubtedly, respondent was negligent in reporting the number of product samples in his custody for August and September 1998. He also committed three
other offenses in the past. First, he was found guilty of and penalized for granting unauthorized free goods in 1994. Secondly, he incurred delays in
submitting his process reports for August, September and October 1998, for which charge he was punished with one-day suspension. Lastly, he cheated in
an ROL test in July 1998 for which he was punished with another one-day suspension.

Respondents offense of granting unauthorized free goods was vaguely discussed. Petitioner did not offer any evidence in this connection; it was given
credence only because of respondents admission of the same. What acts constituted this offense and the circumstances surrounding it were not explained.
However, the records show that in the same year it was committed, in 1994, petitioner still gave respondent two awards: membership to the Wild Boar
Society and the Five-Year Service Award.[40] Absent any explanation which would give this offense substantial weight and importance, it can only be
presumed that petitioner did not consider the offense as sufficiently momentous to disqualify respondent from receiving an award or to even just issue the
respondent a warning that a subsequent offense would result in the termination of his employment.

The rest of the infractions imputed to the respondent were committed during the time he was undergoing serious family problems. His inability to comply with
the deadlines for his process reports and his lack of care in accounting for the product samples in his custody are understandably the result of his
preoccupation with very serious problems. Added to the pressure brought about by the numerous charges he found himself facing, his errors and negligence
should be viewed in a more compassionate light.

Petitioners inability to keep up with his deadlines and his carelessness with his report on product samples during a difficult time in his life are in no way
comparable to the transgressions in the cases cited by petitioner involving other territory representatives Chua v. National Labor Relations Commission[41]
and Gustilo v. Wyeth Philippines.[42] In the Chua case, it was not a mere case of delay in the submission of reports and the occasional mistakes in the DCR,
but an established pattern of inattention in the submission and accomplishing of his reports. The employee therein did not even submit some of the DCRs,
while other DCRs were belatedly submitted in batches covering two to three months. Doctors call cards lacked either the corresponding dates or the
signatures of the doctors concerned. In the Gustillo case, the employee falsified his application form, a gasoline receipt, a report of his trade outlet calls, and
misused his leaves. Evidently, the employee in this case misappropriated company resources by making claims for falsified expenses and making personal
calls in lieu of trade outlet calls. In this case, respondent had not defrauded the petitioner of its property.

The gravest charge that the respondent faced was cheating in his ROL test. Although he avers that he formulated the answers himself and that he merely
allowed his co-employee Joedito Gasendo to write down his answers for him, this Court finds this excuse to be very flimsy. The ROL test consists of one
page and two straightforward questions, which can be answered by more or less ten sentences. Respondent could have spared the few minutes it would
take to write the examination. If he had lacked the time due to a family emergency, a request for an extension would have been the more reasonable and
honest alternative.

Despite the disapproving stance taken by this Court against dishonesty, there have been instances when this Court found the ultimate penalty of dismissal
excessive, even for cases which bear the stigma of deceit.

In Philippine Long Distance Telephone Company v. National Labor Relations Commission,[43] an employee intervened in the anomalous connection of four
telephone lines. It was, likewise, established in Manila Electric Company v. National Labor Relations Commission,[44] that the employee was involved in the
illegal installation of a power line. In both cases, the violations were clearly prejudicial to the economic activity of his employer. Finally, in National Labor
Relations Commission v. Salgarino,[45] a school teacher tampered with the grades of her students, an act which was prejudicial to the schools reputation.
Notably, the Court stopped short of dismissing these employees for offenses more serious than the present case.

In this case, the ROL test is a take-home examination intended to check a territory representatives understanding of information already contained in their
Sales Career Manual, wherein the examinees are even instructed to refer to their manuals. The improper taking of this test, while it puts into question the
examinees moral character, does not result in any potential loss of property or damage to the reputation of the employer. Nor does respondents previous
performance show lack of knowledge required in his sales career. Additionally, the dishonesty practiced by the employee did not involve company property
that was placed in his custody. Furthermore, the gravity of this offense is substantially diminished by the fact that petitioner itself had thought it unimportant
enough to merit only a one-day suspension. The respondents ten years of commendable performance cannot be cancelled out by a single mistake made
during a difficult period of his life, a mistake that did not pose a potential danger to his employer.

The special circumstances of this case -- respondents family crises, the duration of his employment, and the quality of his work during the previous years --
must necessarily influence the penalty to be meted out to the respondent. It would be a cruel disregard of the constitutional guarantee of security of tenure to
impose the penalty of dismissal, without giving due consideration to the ill fortune that may befall a normally excellent employee.

In National Labor Relations Commission v. Salgarino,[46] special consideration was given to the fact that the respondent therein had been in the employ of
the petitioners therein for 10 years and that she was a recipient of numerous academic excellence awards and recognized by her students and some of her
peers in the profession as a competent teacher. The Court, in other cases, has repeatedly ruled that in determining the penalty to be imposed on an erring
employee, his or her length of service must be taken into account.[47] In Brew Master International, Inc., v. National Federation of Labor Unions,[48] the
emotional, psychological, spiritual and physical stress and strain undergone by the employee during a family crisis were regarded as special circumstances
which precluded his dismissal from service, despite his prolonged absence from work. The Court explains the circumspection it exercises when faced with
the imposition of the extremely severe penalty of dismissal thus:
The employers prerogative to discipline its employee must be exercised without abuse of discretion. Its implementation should be tempered with compassion
and understanding. While an employer has the inherent right to discipline its employees, we have always held that this right must always be exercised
humanely, and the penalty it must impose should be commensurate to the offense involved and to the degree of its infraction. The employer should bear in
mind that, in the exercise of such right, what is at stake is not the employees position but her livelihood as well. The law regards the workers with
compassion. Even where a worker has committed an infraction, a penalty less punitive may suffice, whatever missteps may be committed by labor ought not
to be visited with a consequence so severe. This is not only the laws concern for workingman. There is, in addition, his or her family to consider.
Unemployment brings untold hardships and sorrows upon those dependent on the wage-earner.[49]

Respondents violations of petitioners Code of Conduct, even if taken as a whole, would not fall under the just causes of termination provided under Article
282 of the Labor Code.[50] They are mere blunders, which may be corrected. Petitioner failed to point out even a potential danger that respondent would
misappropriate or improperly dispose of company property placed in his custody. It had not shown that during his employment, respondent took a willfully
defiant attitude against it. It also failed to show a pattern of negligence which would indicate that respondent is incapable of performing his responsibilities. At
any other time during his employment, respondent had shown himself a commendable worker.

Nonetheless, the infractions committed by the respondent, while disproportionate to a penalty of dismissal, will not be overlooked. The suspension of five
months without pay, imposed by the Court of Appeals, would serve as a sufficient and just punishment for his violations of the companys Code of Conduct.

IN VIEW OF THE FOREGOING, the instant Petition is DISMISSED and the assailed Decision of the Court of Appeals in CA-G.R. SP No. 81983,
promulgated on 8 February 2006, is AFFIRMED. Costs against the petitioner.

SO ORDERED.