II.
CONCEPT OF QUASI-DELICTS Considering the motion for reconsideration filed by the defendants on January 14, 1965 and after
Art. 2196. The rules under this Title are without prejudice to special provisions on damages formulated
elsewhere in this Code. Compensation for workmen and other employees in case of death, injury or
illness is regulated by special laws. Rules governing damages laid down in other laws shall be observed
insofar as they are not in conflict with this Code.
1. 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.
Cruz & Avecilla for appellants.
Marvin R. Hill & Associates for appellees.
BARREDO, J.:
Appeal from the order of the Court of First Instance of Quezon City dated January 29, 1965 in Civil
Case No. Q-8102, Pedro Elcano et al. vs. Reginald Hill et al. dismissing, upon motion to dismiss of
defendants, the complaint of plaintiffs for recovery of damages from defendant Reginald Hill, a minor,
married at the time of the occurrence, and his father, the defendant Marvin Hill, with whom he was living
and getting subsistence, for the killing by Reginald of the son of the plaintiffs, named Agapito Elcano, of
which, when criminally prosecuted, the said accused was acquitted on the ground that his act was not
criminal, because of "lack of intent to kill, coupled with mistake."
Actually, the motion to dismiss based on the following grounds:
1. The present action is not only against but a violation of section 1, Rule 107, which is now Rule 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:
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 subsistence 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.
Separate Opinions
AQUINO, J, concurring:
Article 2176 of the Civil Code comprehends any culpable act, which is blameworthy, when judged by
accepted legal standards. "The Idea thus expressed is undoubtedly board enough to include any
rational conception of liability for the tortious acts likely to be developed in any society." (Street, J. in
Daywalt vs. Corporacion de PP. Agustinos Recoletos, 39 Phil. 587, 600). See article 38, Civil Code and
the ruling that "the infant tortfeasor is liable in a civil action to the injured person in the same manner
and to the same extent as an adult" (27 Am. Jur. 812 cited by Bocobo, J., in Magtibay vs. Tiangco, 74
Phil. 576, 579).
 2. G.R. No. 108017 April 3, 1995
MARIA BENITA A. DULAY, in her own behalf and in behalf of the minor children KRIZTEEN
ELIZABETH, BEVERLY MARIE and NAPOLEON II, all surnamed DULAY, petitioners,
vs.
THE COURT OF APPEALS, Former Eighth Division, HON. TEODORO P. REGINO, in his capacity
as Presiding Judge of the Regional Trial Court National Capital Region, Quezon City, Br. 84,
SAFEGUARD INVESTIGATION AND SECURITY CO., INC., and SUPERGUARD SECURITY
CORPORATION, respondents.
BIDIN, J.:
This petition for certiorari prays for the reversal of the decision of the Court of Appeals dated October
29, 1991 in CA-G.R. CV No. 24646 which affirmed the order of the Regional Trial Court dismissing Civil
Case No. Q-89-1751, and its resolution dated November 17, 1991 denying herein, petitioner's motion
for reconsideration.
The antecedent facts of the case are as follows:
On December 7, 1988, an altercation between Benigno Torzuela and Atty. Napoleon Dulay occurred at
the "Big Bang Sa Alabang," Alabang Village, Muntinlupa as a result of which Benigno Torzuela, the
security guard on duty at the said carnival, shot and killed Atty. Napoleon Dulay.
Herein petitioner Maria Benita A. Dulay, widow of the deceased Napoleon Dulay, in her own behalf and
in behalf of her minor children, filed on February 8, 1989 an action for damages against Benigno
Torzuela and herein private respondents Safeguard Investigation and Security Co., Inc.,
("SAFEGUARD") and/or Superguard Security Corp. ("SUPERGUARD"), alleged employers of
defendant Torzuela. The complaint, docketed as Civil Case No. Q-89-1751 among others alleges the
following:
1. . . .
Defendants SAFEGUARD INVESTIGATION AND SECURITY CO., INC., (Defendant Safeguard) and
SUPERGUARD SECURITY CORPORATION (Defendant Superguard) are corporations duly organized
and existing in accordance with Philippine laws, with offices at 10th Floor, Manufacturers Building, Inc.,
Plaza Santa Cruz, Manila. They are impleaded as alternative defendants for, while the former appears
to be the employer of defendant BENIGNO TORZUELA (defendant TORZUELA), the latter impliedly
acknowledged responsibility for the acts of defendant TORZUELA by extending its sympathies to
plaintiffs.
Defendant BENIGNO TORZUELA is of legal age, an employee of defendant SAFEGUARD and/or
defendant SUPERGUARD and, at the time of the incident complained of, was under their control and
supervision. . . .
3. On December 7, 1988 at around 8:00 a.m., defendant TORZUELA, while he was on duty as security
guard at the "Big Bang sa Alabang," Alabang Village, Muntinlupa, Metro Manila shot and killed
NAPOLEON V. DULAY with a .38 caliber revolver belonging to defendant SAFEGUARD, and/or
SUPERGUARD (per Police Report dated January 7, 1989, copy attached as Annex A);
4. The incident resulting in the death of NAPOLEON V. DULAY was due to the concurring negligence of
the defendants. Defendant TORZUELA'S wanton and reckless discharge of the firearm issued to him by
defendant SAFEGUARD and/or SUPERGUARD was the immediate and proximate cause of the injury,
while the negligence of defendant SAFEGUARD and/or SUPERGUARD consists in its having failed to
exercise the diligence of a good father of a family in the supervision and control of its employee to avoid
the injury.
xxx xxx xxx
(Rollo, pp. 117-118)
Petitioners prayed for actual, compensatory, moral and exemplary damages, and attorney's fees. The
said Civil Case No. Q-89-1751 was raffled to Branch 84 of the Regional Trial Court of Quezon City,
presided by respondent Judge Teodoro Regino.
On March 2, 1989, private respondent SUPERGUARD filed a Motion to Dismiss on the ground that the
complaint does not state a valid cause of action. SUPERGUARD claimed that Torzuela's act of shooting
Dulay was beyond the scope of his duties, and that since the alleged act of shooting was committed
with deliberate intent (dolo), the civil liability therefor is governed by Article 100 of the Revised Penal
Code, which states:
Art. 100. Civil liability of a person guilty of a felony. — Every person criminally liable for a felony is also
civilly liable.
Respondent SUPERGUARD further alleged that a complaint for damages based on negligence under
Article 2176 of the New Civil Code, such as the one filed by petitioners, cannot lie, since the civil liability
under Article 2176 applies only to quasi-offenses under Article 365 of the Revised Penal Code. In
addition, the private respondent argued that petitioners' filing of the complaint is premature considering
that the conviction of Torzuela in a criminal case is a condition sine qua non for the employer's
subsidiary liability (Rollo, p. 55-59).
Respondent SAFEGUARD also filed a motion praying that it be excluded as defendant on the ground
that defendant Torzuela is not one of its employees (Rollo, p. 96).
Petitioners opposed both motions, stating that their cause of action against the private respondents is
based on their liability under Article 2180 of the New Civil Code, which provides:
Art. 2180. The obligation imposed by Article 2176 is demandable not only for one's own acts or
omissions, but also for those of persons for whom one is responsible.
xxx xxx xxx
Employers shall be liable for the damages caused by their employees and household helpers acting
within the scope of their assigned tasks, even though the former are not engaged in any business or an
industry.
xxx xxx xxx
(Emphasis supplied)
Petitioners contended that a suit against alternative defendants is allowed under Rule 3, Section 13 of
the Rules of Court. Therefore, the inclusion of private respondents as alternative defendants in the
complaint is justified by the following: the Initial Investigation Report prepared by Pat. Mario Tubon
showing that Torzuela is an employee of SAFEGUARD; and through overt acts, SUPERGUARD
extended its sympathies to petitioners (Rollo, pp. 64 and 98).
Meanwhile, an Information dated March 21, 1989 charging Benigno Torzuela with homicide was filed
before the Regional Trial Court of Makati and was docketed as Criminal Case No. 89-1896.
On April 13, 1989, respondent Judge Regino issued an order granting SUPERGUARD'S motion to
dismiss and SAFEGUARD'S motion for exclusion as defendant. The respondent judge held that the
complaint did not state facts necessary or sufficient to constitute a quasi-delict since it does not mention
any negligence on the part of Torzuela in shooting Napoleon Dulay or that the same was done in the
performance of his duties. Respondent judge ruled that mere allegations of the concurring negligence of
the defendants (private respondents herein) without stating the facts showing such negligence are mere
conclusions of law (Rollo, p. 106). Respondent judge also declared that the complaint was one for
damages founded on crimes punishable under Articles 100 and 103 of the Revised Penal Code as
distinguished from those arising from, quasi-delict. The dispositive portion of the order dated April 13,
1989 states:
WHEREFORE, this Court holds that in view of the material and ultimate facts alleged in the verified
complaint and in accordance with the applicable law on the matter as well as precedents laid down by
the Supreme Court, the complaint against the alternative defendants Superguard Security Corporation
and Safeguard Investigation and Security Co., Inc., must be and (sic) it is hereby dismissed. (Rollo, p.
110)
The above order was affirmed by the respondent court and petitioners' motion for reconsideration
thereof was denied.
Petitioners take exception to the assailed decision and insist that quasi-delicts are not limited to acts of
negligence but also cover acts that are intentional and voluntary, citing Andamo v. IAC (191 SCRA 195
[1990]). Thus, petitioners insist that Torzuela' s act of shooting Napoleon Dulay constitutes a quasi-
delict actionable under Article 2176 of the New Civil Code.
Petitioners further contend that under Article 2180 of the New Civil Code, private respondents are
primarily liable for their negligence either in the selection or supervision of their employees. This liability
is independent of the employee's own liability for fault or negligence and is distinct from the subsidiary
civil liability under Article 103 of the Revised Penal Code. The civil action against the employer may
therefore proceed independently of the criminal action pursuant to Rule 111 Section 3 of the Rules of
Court. Petitioners submit that the question of whether Torzuela is an employee of respondent
SUPERGUARD or SAFEGUARD would be better resolved after trial.
Moreover, petitioners argue that Torzuela's act of shooting Dulay is also actionable under Article 33 of
the New Civil Code, to wit:
Art. 33. In cases of defamation, fraud, and physical injuries, a civil action for damages, entirely separate
and distinct from the criminal action, may be brought by the injured party. Such civil action shall proceed
independently of the criminal prosecution, and shall require only a preponderance of evidence.
(Emphasis supplied)
In the same vein, petitioners cite Section 3, Rule 111 of the Rules of Court which provides:
Rule 111. . . . .
Sec. 3. When civil action may proceed independently — In the cases provided for in Articles 32, 33, 34
and 2176 of the Civil Code of the Philippines, the independent civil action which has been reserved may
be brought by the offended party, shall proceed independently of the criminal action, and shall require
only a preponderance of evidence. (Emphasis supplied)
The term "physical injuries" under Article 33 has been held to include consummated, frustrated and
attempted homicide. Thus, petitioners maintain that Torzuela's prior conviction is unnecessary since the
civil action can proceed independently of the criminal action. On the other hand, it is the private
respondents' argument that since the act was not committed with negligence, the petitioners have no
cause of action under Articles 2116 and 2177 of the New Civil Code. The civil action contemplated in
Article 2177 is not applicable to acts committed with deliberate intent, but only applies to quasi-offenses
under Article 365 of the Revised Penal Code. Torzuela's act of shooting Atty. Dulay to death, aside from
being purely personal, was done with deliberate intent and could not have been part of his duties as
security guard. And since Article 2180 of the New Civil Code covers only: acts done within the scope of
the employee's assigned tasks, the private respondents cannot be held liable for damages.
We find for petitioners.
It is undisputed that Benigno Torzuela is being prosecuted for homicide for the fatal shooting of
Napoleon Dulay. Rule 111 of the Rules on Criminal Procedure provides:
Sec. 1. Institution of criminal and civil actions. When a criminal action is instituted, the civil action for the
recovery of civil liability is impliedly instituted with the criminal action, unless the offended party waives
the civil action , reserves his right to institute it separately or institutes the civil action prior to the criminal
action.
Such civil action includes recovery of indemnity under the Revised Penal Code, and damages under
Articles 32, 33, 34, and 2176 of the Civil Code of the Philippines arising from the same act or omission
of the accused. (Emphasis supplied)
It is well-settled that the filing of an independent civil action before the prosecution in the criminal action
presents evidence is even far better than a compliance with the requirement of express reservation
(Yakult Philippines v. Court of Appeals, 190 SCRA 357 [1990]). This is precisely what the petitioners
opted to do in this case. However, the private respondents opposed the civil action on the ground that
the same is founded on a delict and not on a quasi-delict as the shooting was not attended by
negligence. What is in dispute therefore is the nature of the petitioner's cause of action.
The nature of a cause of action is determined by the facts alleged in the complaint as constituting the
cause of action (Republic v. Estenzo, 158 SCRA 282 [1988]). The purpose of an action or suit and the
law to govern it is to be determined not by the claim of the party filing the action, made in his argument
or brief, but rather by the complaint itself, its allegations and prayer for relief. (De Tavera v. Philippine
Tuberculosis Society, 112 SCRA 243 [1982]). An examination of the complaint in the present case
would show that the plaintiffs, petitioners herein, are invoking their right to recover damages against the
private respondents for their vicarious responsibility for the injury caused by Benigno Torzuela's act of
shooting and killing Napoleon Dulay, as stated in paragraphs 1 and 2 of the complaint.
Article 2176 of the New Civil Code provides:
Art. 2176. Whoever by act or omission causes damage to another, there being fault or negligence, is
obliged to pay for the damage done. Such fault or negligence, if there is no pre-existing contractual
relation between the parties is called a quasi-delict and is governed by the provisions of this Chapter.
Contrary to the theory of private respondents, there is no justification for limiting the scope of Article
2176 of the Civil Code to acts or omissions resulting from negligence. Well-entrenched is the doctrine
that article 2176 covers not only acts committed with negligence, but also acts which are voluntary and
intentional. As far back as the definitive case of Elcano v. Hill (77 SCRA 98 [1977]), this Court already
held that:
. . . Article 2176, where it refers to "fault or negligence," covers not only acts "not punishable by law" but
also acts criminal in character; whether intentional and voluntary or negligent. Consequently, a separate
civil action against the offender in a criminal act, whether or not he is criminally prosecuted and found
guilty or acquitted, provided that the offended party is not allowed, if he is actually charged also
criminally, to recover damages on both scores, and would be entitled in such eventuality only to the
bigger award of the two, assuming the awards made in the two cases vary. In other words, the
extinction of civil liability referred to in Par. (e) of Section 3, Rule 111, refers exclusively to civil liability
founded on Article 100 of the Revised Penal Code, whereas the civil liability for the same act considered
as quasi-delict only and not as a crime is not extinguished even by a declaration in the criminal case
that the criminal act charged has not happened or has not been committed by the accused. Briefly
stated, We here hold, in reiteration of Garcia, that culpa aquiliana includes voluntary and negligent acts
which may be punishable by law. (Emphasis supplied)
The same doctrine was echoed in the case of Andamo v. Intermediate Appellate Court (191 SCRA 195
[1990]), wherein the Court held:
Article 2176, whenever it refers to "fault or negligence," covers not only acts criminal in character,
whether intentional and voluntary or negligent. Consequently, a civil action lies against the offender in a
criminal act, whether or not he is prosecuted or found guilty or acquitted, provided that the offended
party is not allowed, (if the tortfeasor is actually also charged 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. [citing Virata v. Ochoa, 81 SCRA 472] (Emphasis supplied)
Private respondents submit that the word "intentional" in the Andamo case is inaccurate obiter, and
should be read as "voluntary" since intent cannot be coupled with negligence as defined by Article 365
of the Revised Penal Code. In the absence of more substantial reasons, this Court will not disturb the
above doctrine on the coverage of Article 2176.
Private respondents further aver that Article 33 of the New Civil Code applies only to injuries
intentionally committed pursuant to the ruling in Marcia v. CA (120 SCRA 193 [1983]), and that the
actions for damages allowed thereunder are ex-delicto. However, the term "physical injuries" in Article
33 has already been construed to include bodily injuries causing death (Capuno v. Pepsi-Cola Bottling
Co. of the Philippines, 121 Phil. 638 [1965); Carandang v. Santiago, 97 Phil. 94 [1955]). It is not the
crime of physical injuries defined in the Revised Penal Code. It includes not only physical injuries but
also consummated, frustrated, and attempted homicide (Madeja v. Caro, 126 SCRA 293 [1983]).
Although in the Marcia case (supra), it was held that no independent civil action may be filed under
Article 33 where the crime is the result of criminal negligence, it must be noted however, that Torzuela,
the accused in the case at bar, is charged with homicide, not with reckless imprudence, whereas the
defendant in Marcia was charged with reckless imprudence. Therefore, in this case, a civil action based
on Article 33 lies.
Private respondents also contend that their liability is subsidiary under the Revised Penal Code; and
that they are not liable for Torzuela's act which is beyond the scope of his duties as a security guard. It
having been established that the instant action is not ex-delicto, petitioners may proceed directly against
Torzuela and the private respondents. Under Article 2180 of the New Civil Code as aforequoted, when
an 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 employer either in the selection of the servant or
employee, or in supervision over him after selection or both (Layugan v. Intermediate Appellate Court,
167 SCRA 363 [1988]). The liability of the employer under Article 2180 is direct and immediate; it is not
conditioned upon prior recourse against the negligent employee and a prior showing of the insolvency of
such employee (Kapalaran Bus Lines v. Coronado, 176 SCRA 792 [1989]). Therefore, it is incumbent
upon the private respondents to prove that they exercised the diligence of a good father of a family in
the selection and supervision of their employee.
Since Article 2176 covers not only acts of negligence but also acts which are intentional and voluntary, it
was therefore erroneous on the part of the trial court to dismiss petitioner's complaint simply because it
failed to make allegations of attendant negligence attributable to private respondents.
With respect to the issue of whether the complaint at hand states a sufficient cause of action, the
general rule is that the allegations in a complaint are sufficient to constitute a cause of action against the
defendants if, admitting the facts alleged, the court can render a valid judgment upon the same in
accordance with the prayer therein. A cause of action exist if the following elements are present,
namely: (1) a right in favor of the plaintiff by whatever means and under whatever law it arises or is
created; (2) an obligation on the part of the named defendant to respect or not to violate such right; and
(3) an act or omission on the part of such defendant violative of the right of the plaintiff or constituting a
breach of the obligation of the defendant to the plaintiff for which the latter may maintain an action for
recovery of damages (Del Bros Hotel Corporation v. CA, 210 SCRA 33 [1992]); Development Bank of
the Philippines v. Pundogar, 218 SCRA 118 [1993])
This Court finds, under the foregoing premises, that the complaint sufficiently alleged an actionable
breach on the part of the defendant Torzuela and respondents SUPERGUARD and/or SAFEGUARD. It
is enough that the complaint alleged that Benigno Torzuela shot Napoleon Dulay resulting in the latter's
death; that the shooting occurred while Torzuela was on duty; and that either SUPERGUARD and/or
SAFEGUARD was Torzuela's employer and responsible for his acts. This does not operate however, to
establish that the defendants below are liable. Whether or not the shooting was actually reckless and
wanton or attended by negligence and whether it was actually done within the scope of Torzuela's
duties; whether the private respondents SUPERGUARD and/or SAFEGUARD failed to exercise the
diligence of a good father of a family; and whether the defendants are actually liable, are questions
which can be better resolved after trial on the merits where each party can present evidence to prove
their respective allegations and defenses. In determining whether the allegations of a complaint are
sufficient to support a cause of action, it must be borne in mind that the complaint does not have to
establish or allege the facts proving the existence of a cause of action at the outset; this will have to be
done at the trial on the merits of the case (Del Bros Hotel Corporation v. CA, supra). If the allegations in
a complaint can furnish a sufficient basis by which the complaint can be maintained, the same should
not be dismissed regardless of the defenses that may be assessed by the defendants (Rava Dev't.
Corp. v. CA, 211 SCRA 152 [1992] citing Consolidated Bank & Trust Corporation v. Court of Appeals,
197 SCRA 663 [1991]). To sustain a motion to dismiss for lack of cause of action, the complaint must
show that the claim for relief does not exist rather than that a claim has been defectively stated, is
ambiguous, indefinite or uncertain (Azur v. Provincial Board, 27 SCRA 50 [1969]). Since the petitioners
clearly sustained an injury to their rights under the law, it would be more just to allow them to present
evidence of such injury.
WHEREFORE, premises considered, the petition for review is hereby GRANTED. The decision of the
Court of Appeals as well as the Order of the Regional Trial Court dated April 13, 1989 are hereby
REVERSED and SET ASIDE. Civil Case No. Q-89-1751 is remanded to the Regional Trial Court for trial
on the merits. This decision is immediately executory.
SO ORDERED.
Narvasa, C.J., Regalado, Puno and Mendoza, JJ., concur.
3. G.R. No. 74761 November 6, 1990
NATIVIDAD V. ANDAMO and EMMANUEL R. ANDAMO, petitioners,
vs.
INTERMEDIATE APPELLATE COURT (First Civil Cases Division) and MISSIONARIES OF OUR
LADY OF LA SALETTE, INC., respondents.
Lope E. Adriano for petitioners.
Padilla Law Office for private respondent.
FERNAN, C.J.:
The pivotal issue in this petition for certiorari, prohibition and mandamus is whether a corporation, which
has built through its agents, waterpaths, water conductors and contrivances within its land, thereby
causing inundation and damage to an adjacent land, can be held civilly liable for damages under
Articles 2176 and 2177 of the Civil Code on quasi-delicts such that the resulting civil case can proceed
independently of the criminal case.
The antecedent facts are as follows:
Petitioner spouses Emmanuel and Natividad Andamo are the owners of a parcel of land situated in Biga
(Biluso) Silang, Cavite which is adjacent to that of private respondent, Missionaries of Our Lady of La
Salette, Inc., a religious corporation.
Within the land of respondent corporation, waterpaths and contrivances, including an artificial lake, were
constructed, which allegedly inundated and eroded petitioners' land, caused a young man to drown,
damaged petitioners' crops and plants, washed away costly fences, endangered the lives of petitioners
and their laborers during rainy and stormy seasons, and exposed plants and other improvements to
destruction.
In July 1982, petitioners instituted a criminal action, docketed as Criminal Case No. TG-907-82, before
the Regional Trial Court of Cavite, Branch 4 (Tagaytay City), against Efren Musngi, Orlando Sapuay
and Rutillo Mallillin, officers and directors of herein respondent corporation, for destruction by means of
inundation under Article 324 of the Revised Penal Code.
Subsequently, on February 22, 1983, petitioners filed another action against respondent corporation,
this time a civil case, docketed as Civil Case No. TG-748, for damages with prayer for the issuance of a
writ of preliminary injunction before the same court. 1
On March 11, 1983, respondent corporation filed its answer to the complaint and opposition to the
issuance of a writ of preliminary injunction. Hearings were conducted including ocular inspections on the
land. However, on April 26, 1984, the trial court, acting on respondent corporation's motion to dismiss or
suspend the civil action, issued an order suspending further hearings in Civil Case No, TG-748 until
after judgment in the related Criminal Case No. TG-907-82.
Resolving respondent corporation's motion to dismiss filed on June 22, 1984, the trial court issued on
August 27, 1984 the disputed order dismissing Civil Case No. TG-748 for lack of jurisdiction, as the
criminal case which was instituted ahead of the civil case was still unresolved. Said order was anchored
on the provision of Section 3 (a), Rule III of the Rules of Court which provides that "criminal and civil
actions arising from the same offense may be instituted separately, but after the criminal action has
been commenced the civil action cannot be instituted until final judgment has been rendered in the
criminal action." 2
3
Petitioners appealed from that order to the Intermediate Appellate Court.
On February 17, 1986, respondent Appellate Court, First Civil Cases Division, promulgated a
decision 4 affirming the questioned order of the trial court. 5 A motion for reconsideration filed by
petitioners was denied by the Appellate Court in its resolution dated May 19, 1986. 6
Directly at issue is the propriety of the dismissal of Civil Case No. TG-748 in accordance with Section 3
(a) of Rule 111 of the Rules of Court. Petitioners contend that the trial court and the Appellate Court
erred in dismissing Civil Case No. TG-748 since it is predicated on a quasi-delict. Petitioners have
raised a valid point.
It is axiomatic that the nature of an action filed in court is determined by the facts alleged in the
complaint as constituting the cause of action. 7 The purpose of an action or suit and the law to govern it,
including the period of prescription, is to be determined not by the claim of the party filing the action,
made in his argument or brief, but rather by the complaint itself, its allegations and prayer for
relief. 8 The nature of an action is not necessarily determined or controlled by its title or heading but the
body of the pleading or complaint itself. To avoid possible denial of substantial justice due to legal
technicalities, pleadings as well as remedial laws should be liberally construed so that the litigants may
have ample opportunity to prove their respective claims. 9
Quoted hereunder are the pertinent portions of petitioners' complaint in Civil Case No. TG-748:4) That
within defendant's land, likewise located at Biga (Biluso), Silang, Cavite, adjacent on the right side of the
aforesaid land of plaintiffs, defendant constructed waterpaths starting from the middle-right portion
thereof leading to a big hole or opening, also constructed by defendant, thru the lower portion of its
concrete hollow-blocks fence situated on the right side of its cemented gate fronting the provincial
highway, and connected by defendant to a man height inter-connected cement culverts which were also
constructed and lain by defendant cross-wise beneath the tip of the said cemented gate, the left-end of
the said inter-connected culverts again connected by defendant to a big hole or opening thru the lower
portion of the same concrete hollowblocks fence on the left side of the said cemented gate, which hole
or opening is likewise connected by defendant to the cemented mouth of a big canal, also constructed
by defendant, which runs northward towards a big hole or opening which was also built by defendant
thru the lower portion of its concrete hollow-blocks fence which separates the land of plaintiffs from that
of defendant (and which serves as the exit-point of the floodwater coming from the land of defendant,
and at the same time, the entrance-point of the same floodwater to the land of plaintiffs, year after year,
during rainy or stormy seasons.5) That moreover, on the middle-left portion of its land just beside the
land of plaintiffs, defendant also constructed an artificial lake, the base of which is soil, which utilizes the
water being channeled thereto from its water system thru inter-connected galvanized iron pipes (No. 2)
and complimented by rain water during rainy or stormy seasons, so much so that the water below it
seeps into, and the excess water above it inundates, portions of the adjoining land of plaintiffs.6) That
as a result of the inundation brought about by defendant's aforementioned water conductors,
contrivances and manipulators, a young man was drowned to death, while herein plaintiffs suffered and
will continue to suffer, as follows:
a) Portions of the land of plaintiffs were eroded and converted to deep, wide and long canals, such that
the same can no longer be planted to any crop or plant.
b) Costly fences constructed by plaintiffs were, on several occasions, washed away.
c) During rainy and stormy seasons the lives of plaintiffs and their laborers are always in danger.
d) Plants and other improvements on other portions of the land of plaintiffs are exposed to destruction.
... 10
A careful examination of the aforequoted complaint shows that the civil action is one under Articles 2176
and 2177 of the Civil Code on quasi-delicts. All the elements of a quasi-delict are present, to wit: (a)
damages suffered by the plaintiff, (b) fault or negligence of the defendant, or some other person for
whose acts he must respond; and (c) the connection of cause and effect between the fault or
negligence of the defendant and the damages incurred by the plaintiff. 11
Clearly, from petitioner's complaint, the waterpaths and contrivances built by respondent corporation are
alleged to have inundated the land of petitioners. There is therefore, an assertion of a causal connection
between the act of building these waterpaths and the damage sustained by petitioners. Such action if
proven constitutes fault or negligence which may be the basis for the recovery of damages.
In the case of Samson vs. Dionisio, 12 the Court applied Article 1902, now Article 2176 of the Civil Code
and held that "any person who without due authority constructs a bank or dike, stopping the flow or
communication between a creek or a lake and a river, thereby causing loss and damages to a third
party who, like the rest of the residents, is entitled to the use and enjoyment of the stream or lake, shall
be liable to the payment of an indemnity for loss and damages to the injured party.
While the property involved in the cited case belonged to the public domain and the property subject of
the instant case is privately owned, the fact remains that petitioners' complaint sufficiently alleges that
petitioners have sustained and will continue to sustain damage due to the waterpaths and contrivances
built by respondent corporation. Indeed, the recitals of the complaint, the alleged presence of damage to
the petitioners, the act or omission of respondent corporation supposedly constituting fault or
negligence, and the causal connection between the act and the damage, with no pre-existing
contractual obligation between the parties make a clear case of a quasi delict or culpa aquiliana.
It must be stressed that the use of one's property is not without limitations. Article 431 of the Civil Code
provides that "the owner of a thing cannot make use thereof in such a manner as to injure the rights of a
third person." SIC UTERE TUO UT ALIENUM NON LAEDAS. Moreover, adjoining landowners have
mutual and reciprocal duties which require that each must use his own land in a reasonable manner so
as not to infringe upon the rights and interests of others. Although we recognize the right of an owner to
build structures on his land, such structures must be so constructed and maintained using all
reasonable care so that they cannot be dangerous to adjoining landowners and can withstand the usual
and expected forces of nature. If the structures cause injury or damage to an adjoining landowner or a
third person, the latter can claim indemnification for the injury or damage suffered.
Article 2176 of the Civil Code imposes a civil liability on a person for damage caused by his act or
omission constituting fault or negligence, thus:
Article 2176. Whoever by act or omission causes damage to another, there being fault or negligence, is
obliged to pay for the damage done. Such fault or negligence, if there is no pre-existing contractual
relation between the parties, is called a quasi-delict and is governed by the provisions of this chapter.
Article 2176, whenever it refers to "fault or negligence", covers not only acts "not punishable by law" but
also acts criminal in character, whether intentional and voluntary or negligent. Consequently, a separate
civil action lies against the offender in a criminal act, whether or not he is criminally prosecuted and
found guilty or acquitted, provided that the offended party is not allowed, (if the tortfeasor is actually
charged also criminally), to recover damages on both scores, and would be entitled in such eventuality
only to the bigger award of the two, assuming the awards made in the two cases vary. 13
The distinctness of quasi-delicta is shown in Article 2177 of the Civil Code, which states:
Article 2177. Responsibility for fault or negligence under the preceding article is entirely separate and
distinct from the civil liability arising from negligence under the Penal Code. But the plaintiff cannot
recover damages twice for the same act or omission of the defendant.
According to the Report of the Code Commission "the foregoing provision though at first sight startling,
is not so novel or extraordinary when we consider the exact nature of criminal and civil negligence. The
former is a violation of the criminal law, while the latter is a distinct and independent negligence, which
is a "culpa aquiliana" or quasi-delict, of ancient origin, having always had its own foundation and
individuality, separate from criminal negligence. Such distinction between criminal negligence and
"culpa extra-contractual" or "cuasi-delito" has been sustained by decisions of the Supreme Court of
Spain ... 14
In the case of Castillo vs. Court of Appeals, 15 this Court held that a quasi-delict or culpa aquiliana is a
separate legal institution under the Civil Code with a substantivity all its own, and individuality that is
entirely apart and independent from a delict or crime — a distinction exists between the civil liability
arising from a crime and the responsibility for quasi-delicts or culpa extra-contractual. The same
negligence causing damages may produce civil liability arising from a crime under the Penal Code, or
create an action for quasi-delicts or culpa extra-contractual under the Civil Code. Therefore, the
acquittal or conviction in the criminal case is entirely irrelevant in the civil case, unless, of course, in the
event of an acquittal where the court has declared that the fact from which the civil action arose did not
exist, in which case the extinction of the criminal liability would carry with it the extinction of the civil
liability.
In Azucena vs. Potenciano, 16 the Court declared that in quasi-delicts, "(t)he civil action is entirely
independent of the criminal case according to Articles 33 and 2177 of the Civil Code. There can be no
logical conclusion than this, for to subordinate the civil action contemplated in the said articles to the
result of the criminal prosecution — whether it be conviction or acquittal — would render meaningless
the independent character of the civil action and the clear injunction in Article 31, that his action may
proceed independently of the criminal proceedings and regardless of the result of the latter."
WHEREFORE, the assailed decision dated February 17, 1986 of the then Intermediate Appellate Court
affirming the order of dismissal of the Regional Trial Court of Cavite, Branch 18 (Tagaytay City) dated
August 17, 1984 is hereby REVERSED and SET ASIDE. The trial court is ordered to reinstate Civil
Case No. TG-748 entitled "Natividad V. Andamo and Emmanuel R. Andamo vs. Missionaries of Our
Lady of La Salette Inc." and to proceed with the hearing of the case with dispatch. This decision is
immediately executory. Costs against respondent corporation.
SO ORDERED.
4. G.R. No. L-4977 March 22, 1910
DAVID TAYLOR, plaintiff-appellee,
vs.
THE MANILA ELECTRIC RAILROAD AND LIGHT COMPANY, defendant-appellant.
W. H. Lawrence, for appellant.
W. L. Wright, for appellee.
CARSON, J.:
An action to recover damages for the loss of an eye and other injuries, instituted by David Taylor, a
minor, by his father, his nearest relative.
The defendant is a foreign corporation engaged in the operation of a street railway and an electric light
system in the city of Manila. Its power plant is situated at the eastern end of a small island in the Pasig
River within the city of Manila, known as the Isla del Provisor. The power plant may be reached by boat
or by crossing a footbridge, impassable for vehicles, at the westerly end of the island.
The plaintiff, David Taylor, was at the time when he received the injuries complained of, 15 years of
age, the son of a mechanical engineer, more mature than the average boy of his age, and having
considerable aptitude and training in mechanics.
On the 30th of September, 1905, plaintiff, with a boy named Manuel Claparols, about 12 years of age,
crossed the footbridge to the Isla del Provisor, for the purpose of visiting one Murphy, an employee of
the defendant, who and promised to make them a cylinder for a miniature engine. Finding on inquiry
that Mr. Murphy was not in his quarters, the boys, impelled apparently by youthful curiosity and perhaps
by the unusual interest which both seem to have taken in machinery, spent some time in wandering
about the company's premises. The visit was made on a Sunday afternoon, and it does not appear that
they saw or spoke to anyone after leaving the power house where they had asked for Mr. Murphy.
After watching the operation of the travelling crane used in handling the defendant's coal, they walked
across the open space in the neighborhood of the place where the company dumped in the cinders and
ashes from its furnaces. Here they found some twenty or thirty brass fulminating caps scattered on the
ground. These caps are approximately of the size and appearance of small pistol cartridges and each
has attached to it two long thin wires by means of which it may be discharged by the use of electricity.
They are intended for use in the explosion of blasting charges of dynamite, and have in themselves a
considerable explosive power. After some discussion as to the ownership of the caps, and their right to
take them, the boys picked up all they could find, hung them on stick, of which each took end, and
carried them home. After crossing the footbridge, they met a little girl named Jessie Adrian, less than 9
years old, and all three went to the home of the boy Manuel. The boys then made a series of
experiments with the caps. They trust the ends of the wires into an electric light socket and obtained no
result. They next tried to break the cap with a stone and failed. Manuel looked for a hammer, but could
not find one. Then they opened one of the caps with a knife, and finding that it was filled with a yellowish
substance they got matches, and David held the cap while Manuel applied a lighted match to the
contents. An explosion followed, causing more or less serious injuries to all three. Jessie, who when the
boys proposed putting a match to the contents of the cap, became frightened and started to run away,
received a slight cut in the neck. Manuel had his hand burned and wounded, and David was struck in
the face by several particles of the metal capsule, one of which injured his right eye to such an extent as
to the necessitate its removal by the surgeons who were called in to care for his wounds.
The evidence does definitely and conclusively disclose how the caps came to be on the defendant's
premises, nor how long they had been there when the boys found them. It appears, however, that some
months before the accident, during the construction of the defendant's plant, detonating caps of the
same size and kind as those found by the boys were used in sinking a well at the power plant near the
place where the caps were found; and it also appears that at or about the time when these caps were
found, similarly caps were in use in the construction of an extension of defendant's street car line to Fort
William McKinley. The caps when found appeared to the boys who picked them up to have been lying
for a considerable time, and from the place where they were found would seem to have been discarded
as detective or worthless and fit only to be thrown upon the rubbish heap.
No measures seems to have been adopted by the defendant company to prohibit or prevent visitors
from entering and walking about its premises unattended, when they felt disposed so to do. As admitted
in defendant counsel's brief, "it is undoubtedly true that children in their play sometimes crossed the foot
bridge to the islands;" and, we may add, roamed about at will on the uninclosed premises of the
defendant, in the neighborhood of the place where the caps were found. There is evidence that any
effort ever was made to forbid these children from visiting the defendant company's premises, although
it must be assumed that the company or its employees were aware of the fact that they not infrequently
did so.
Two years before the accident, plaintiff spent four months at sea, as a cabin boy on one of the
interisland transports. Later he took up work in his father's office, learning mechanical drawing and
mechanical engineering. About a month after his accident he obtained employment as a mechanical
draftsman and continued in that employment for six months at a salary of P2.50 a day; and it appears
that he was a boy of more than average intelligence, taller and more mature both mentally and
physically than most boys of fifteen.
The facts set out in the foregoing statement are to our mind fully and conclusively established by the
evidence of record, and are substantially admitted by counsel. The only questions of fact which are
seriously disputed are plaintiff's allegations that the caps which were found by plaintiff on defendant
company's premises were the property of the defendant, or that they had come from its possession and
control, and that the company or some of its employees left them exposed on its premises at the point
where they were found.
that the caps found on its premises were its property, and were left where they were found by the
company or some of its employees.
Plaintiff appears to have rested his case, as did the trial judge his decision in plaintiff's favor, upon the
provisions of article 1089 of the Civil Code read together with articles 1902, 1903, and 1908 of that
code.

The evidence in support of these allegations is meager, and the defendant company, apparently relying ART. 1089 Obligations are created by law, by contracts, by quasi-contracts, and illicit acts and
on the rule of law which places the burden of proof of such allegations upon the plaintiff, offered no omissions or by those in which any kind of fault or negligence occurs.
evidence in rebuttal, and insists that plaintiff failed in his proof. We think, however, that plaintiff's
evidence is sufficient to sustain a finding in accord with his allegations in this regard.
ART. 1902 A person who by an act or omission causes damage to another when there is fault or
negligence shall be obliged to repair the damage so done.
It was proven that caps, similar to those found by plaintiff, were used, more or less extensively, on the
McKinley extension of the defendant company's track; that some of these caps were used in blasting a
well on the company's premises a few months before the accident; that not far from the place where the ART. 1903 The obligation imposed by the preceding article is demandable, not only for personal acts
caps were found the company has a storehouse for the materials, supplies and so forth, used by it in its and omissions, but also for those of the persons for whom they should be responsible.
operations as a street railway and a purveyor of electric light; and that the place, in the neighborhood of
which the caps were found, was being used by the company as a sort of dumping ground for ashes and The father, and on his death or incapacity the mother, is liable for the damages caused by the minors
cinders. Fulminating caps or detonators for the discharge by electricity of blasting charges by dynamite who live with them.
are not articles in common use by the average citizen, and under all the circumstances, and in the
absence of all evidence to the contrary, we think that the discovery of twenty or thirty of these caps at xxx xxx xxx
the place where they were found by the plaintiff on defendant's premises fairly justifies the inference
that the defendant company was either the owner of the caps in question or had the caps under its
possession and control. We think also that the evidence tends to disclose that these caps or detonators Owners or directors of an establishment or enterprise are equally liable for damages caused by their
were willfully and knowingly thrown by the company or its employees at the spot where they were found, employees in the service of the branches in which the latter may be employed or on account of their
with the expectation that they would be buried out of the sight by the ashes which it was engaged in duties.
dumping in that neighborhood, they being old and perhaps defective; and, however this may be, we are
satisfied that the evidence is sufficient to sustain a finding that the company or some of its employees xxx xxx xxx
either willfully or through an oversight left them exposed at a point on its premises which the general
public, including children at play, where not prohibited from visiting, and over which the company knew
The liability referred to in this article shall cease when the persons mentioned therein prove that they
or ought to have known that young boys were likely to roam about in pastime or in play.
employed all the diligence of a good father of a family to avoid the damage.

Counsel for appellant endeavors to weaken or destroy the probative value of the facts on which these
ART. 1908 The owners shall also be liable for the damage caused —
conclusions are based by intimidating or rather assuming that the blasting work on the company's well
and on its McKinley extension was done by contractors. It was conclusively proven, however, that while
the workman employed in blasting the well was regularly employed by J. G. White and Co., a firm of 1 By the explosion of machines which may not have been cared for with due diligence, and for kindling
contractors, he did the work on the well directly and immediately under the supervision and control of of explosive substances which may not have been placed in a safe and proper place.
one of defendant company's foremen, and there is no proof whatever in the record that the blasting on
the McKinley extension was done by independent contractors. Only one witness testified upon this Counsel for the defendant and appellant rests his appeal strictly upon his contention that the facts
point, and while he stated that he understood that a part of this work was done by contract, he could not proven at the trial do not established the liability of the defendant company under the provisions of these
say so of his own knowledge, and knew nothing of the terms and conditions of the alleged contract, or articles, and since we agree with this view of the case, it is not necessary for us to consider the various
of the relations of the alleged contractor to the defendant company. The fact having been proven that questions as to form and the right of action (analogous to those raised in the case of Rakes vs. Atlantic,
detonating caps were more or less extensively employed on work done by the defendant company's Gulf and Pacific Co., 7 Phil. Rep., 359), which would, perhaps, be involved in a decision affirming the
directions and on its behalf, we think that the company should have introduced the necessary evidence judgment of the court below.
to support its contention if it wished to avoid the not unreasonable inference that it was the owner of the
material used in these operations and that it was responsible for tortious or negligent acts of the agents
We agree with counsel for appellant that under the Civil Code, as under the generally accepted doctrine
employed therein, on the ground that this work had been intrusted to independent contractors as to
in the United States, the plaintiff in an action such as that under consideration, in order to establish his
whose acts the maxim respondent superior should not be applied. If the company did not in fact own or
right to a recovery, must establish by competent evidence:
make use of caps such as those found on its premises, as intimated by counsel, it was a very simple
matter for it to prove that fact, and in the absence of such proof we think that the other evidence in the
record sufficiently establishes the contrary, and justifies the court in drawing the reasonable inference (1) Damages to the plaintiff.
(2) Negligence by act or omission of which defendant personally, or some person for whose acts it must
respond, was guilty.
(3) The connection of cause and effect between the negligence and the damage.
These proposition are, of course, elementary, and do not admit of discussion, the real difficulty arising in
the application of these principles to the particular facts developed in the case under consideration.
It is clear that the accident could not have happened and not the fulminating caps been left exposed at
the point where they were found, or if their owner had exercised due care in keeping them in an
appropriate place; but it is equally clear that plaintiff would not have been injured had he not, for his own
pleasure and convenience, entered upon the defendant's premises, and strolled around thereon without
the express permission of the defendant, and had he not picked up and carried away the property of the
defendant which he found on its premises, and had he not thereafter deliberately cut open one of the
caps and applied a match to its contents.
But counsel for plaintiff contends that because of plaintiff's youth and inexperience, his entry upon
defendant company's premises, and the intervention of his action between the negligent act of
defendant in leaving the caps exposed on its premises and the accident which resulted in his injury
should not be held to have contributed in any wise to the accident, which should be deemed to be the
direct result of defendant's negligence in leaving the caps exposed at the place where they were found
by the plaintiff, and this latter the proximate cause of the accident which occasioned the injuries
sustained by him.
In support of his contention, counsel for plaintiff relies on the doctrine laid down in many of the courts of
last resort in the United States in the cases known as the "Torpedo" and "Turntable" cases, and the
cases based thereon.
In a typical cases, the question involved has been whether a railroad company is liable for an injury
received by an infant of tender years, who from mere idle curiosity, or for the purposes of amusement,
enters upon the railroad company's premises, at a place where the railroad company knew, or had good
reason to suppose, children would be likely to come, and there found explosive signal torpedoes left
unexposed by the railroad company's employees, one of which when carried away by the visitor,
exploded and injured him; or where such infant found upon the premises a dangerous machine, such as
a turntable, left in such condition as to make it probable that children in playing with it would be exposed
to accident or injury therefrom and where the infant did in fact suffer injury in playing with such machine.
In these, and in great variety of similar cases, the great weight of authority holds the owner of the
premises liable.
As laid down in Railroad Co. vs. Stout (17 Wall. (84 U. S.), 657), wherein the principal question was
whether a railroad company was liable for in injury received by an infant while upon its premises, from
idle curiosity, or for purposes of amusement, if such injury was, under circumstances, attributable to the
negligence of the company), the principles on which these cases turn are that "while a railroad company
is not bound to the same degree of care in regard to mere strangers who are unlawfully upon its
premises that it owes to passengers conveyed by it, it is not exempt from responsibility to such
strangers for injuries arising from its negligence or from its tortious acts;" and that "the conduct of an
infant of tender years is not to be judged by the same rule which governs that of adult. While it is the
general rule in regard to an adult that to entitle him to recover damages for an injury resulting from the
fault or negligence of another he must himself have been free from fault, such is not the rule in regard to
an infant of tender years. The care and caution required of a child is according to his maturity and
capacity only, and this is to be determined in each case by the circumstances of the case."
The doctrine of the case of Railroad Company vs. Stout was vigorously controverted and sharply
criticized in several state courts, and the supreme court of Michigan in the case of Ryan vs. Towar (128
Mich., 463) formally repudiated and disapproved the doctrine of the Turntable cases, especially that laid
down in Railroad Company vs. Stout, in a very able decision wherein it held, in the language of the
syllabus: (1) That the owner of the land is not liable to trespassers thereon for injuries sustained by
them, not due to his wanton or willful acts; (2) that no exception to this rule exists in favor of children
who are injured by dangerous machinery naturally calculated to attract them to the premises; (3) that an
invitation or license to cross the premises of another can not be predicated on the mere fact that no
steps have been taken to interfere with such practice; (4) that there is no difference between children
and adults as to the circumstances that will warrant the inference of an invitation or a license to enter
upon another's premises.
Similar criticisms of the opinion in the case of Railroad Company vs. Stout were indulged in by the
courts in Connecticut and Massachusetts. (Nolan vs. Railroad Co., 53 Conn., 461; 154 Mass., 349). And
the doctrine has been questioned in Wisconsin, Pennsylvania, New Hampshire, and perhaps in other
States.
On the other hand, many if not most of the courts of last resort in the United States, citing and approving
the doctrine laid down in England in the leading case of Lynch vs. Nurding (1 Q. B., 29, 35, 36), lay
down the rule in these cases in accord with that announced in the Railroad Company vs. Stout (supra),
and the Supreme Court of the United States, in a unanimous opinion delivered by Justice Harlan in the
case of Union Pacific Railway Co. vs. McDonal and reconsidered the doctrine laid down in Railroad Co.
vs. Stout, and after an exhaustive and critical analysis and review of many of the adjudged cases, both
English and American, formally declared that it adhered "to the principles announced in the case
of Railroad Co. vs. Stout."
In the case of Union Pacific Railway Co. vs. MacDonald (supra) the facts were as follows: The plaintiff,
a boy 12 years of age, out of curiosity and for his own pleasure, entered upon and visited the
defendant's premises, without defendant's express permission or invitation, and while there, was by
accident injured by falling into a burning slack pile of whose existence he had no knowledge, but which
had been left by defendant on its premises without any fence around it or anything to give warning of its
dangerous condition, although defendant knew or had reason the interest or curiosity of passers-by. On
these facts the court held that the plaintiff could not be regarded as a mere trespasser, for whose safety
and protection while on the premises in question, against the unseen danger referred to, the defendant
was under no obligation to make provision.
We quote at length from the discussion by the court of the application of the principles involved to the
facts in that case, because what is said there is strikingly applicable in the case at bar, and would seem
to dispose of defendant's contention that, the plaintiff in this case being a trespasser, the defendant
company owed him no duty, and in no case could be held liable for injuries which would not have
resulted but for the entry of plaintiff on defendant's premises.
We adhere to the principles announced in Railroad Co. vs. Stout (supra). Applied to the case now
before us, they require us to hold that the defendant was guilty of negligence in leaving unguarded the
slack pile, made by it in the vicinity of its depot building. It could have forbidden all persons from coming
to its coal mine for purposes merely of curiosity and pleasure. But it did not do so. On the contrary, it
permitted all, without regard to age, to visit its mine, and witness its operation. It knew that the usual
approach to the mine was by a narrow path skirting its slack pit, close to its depot building, at which the
people of the village, old and young, would often assemble. It knew that children were in the habit of
frequenting that locality and playing around the shaft house in the immediate vicinity of the slack pit. The
slightest regard for the safety of these children would have suggested that they were in danger from
being so near a pit, beneath the surface of which was concealed (except when snow, wind, or rain
prevailed) a mass of burning coals into which a child might accidentally fall and be burned to death.
Under all the circumstances, the railroad company ought not to be heard to say that the plaintiff, a mere
lad, moved by curiosity to see the mine, in the vicinity of the slack pit, was a trespasser, to whom it
owed no duty, or for whose protection it was under no obligation to make provisions.
In Townsend vs. Wathen (9 East, 277, 281) it was held that if a man dangerous traps, baited with flesh,
in his own ground, so near to a highway, or to the premises of another, that dogs passing along the
highway, or kept in his neighbors premises, would probably be attracted by their instinct into the traps,
and in consequence of such act his neighbor's dogs be so attracted and thereby injured, an action on
the case would lie. "What difference," said Lord Ellenborough, C.J., "is there in reason between drawing
the animal into the trap by means of his instinct which he can not resist, and putting him there by
manual force?" What difference, in reason we may observe in this case, is there between an express
license to the children of this village to visit the defendant's coal mine, in the vicinity of its slack pile, and
an implied license, resulting from the habit of the defendant to permit them, without objection or
warning, to do so at will, for purposes of curiosity or pleasure? Referring it the case of Townsend vs.
Wathen, Judge Thompson, in his work on the Law of Negligence, volume 1, page 305, note, well says:
"It would be a barbarous rule of law that would make the owner of land liable for setting a trap thereon,
baited with stinking meat, so that his neighbor's dog attracted by his natural instinct, might run into it and
be killed, and which would exempt him from liability for the consequence of leaving exposed and
unguarded on his land a dangerous machine, so that his neighbor's child attracted to it and tempted to
intermeddle with it by instincts equally strong, might thereby be killed or maimed for life."
Chief Justice Cooley, voicing the opinion of the supreme court of Michigan, in the case of Powers vs.
Harlow (53 Mich., 507), said that (p. 515):
Children, wherever they go, must be expected to act upon childlike instincts and impulses; and others
who are chargeable with a duty of care and caution toward them must calculate upon this, and take
precautions accordingly. If they leave exposed to the observation of children anything which would be
tempting to them, and which they in their immature judgment might naturally suppose they were at
liberty to handle or play with, they should expect that liberty to be taken.
And the same eminent jurist in his treatise or torts, alluding to the doctrine of implied invitation to visit
the premises of another, says:
In the case of young children, and other persons not fully sui juris, an implied license might sometimes
arise when it would not on behalf of others. Thus leaving a tempting thing for children to play with
exposed, where they would be likely to gather for that purpose, may be equivalent to an invitation to
them to make use of it; and, perhaps, if one were to throw away upon his premises, near the common
way, things tempting to children, the same implication should arise. (Chap. 10, p. 303.)
The reasoning which led the Supreme Court of the United States to its conclusion in the cases
of Railroad Co. vs. Stout (supra) and Union Pacific Railroad Co. vs. McDonald (supra) is not less cogent
and convincing in this jurisdiction than in that wherein those cases originated. Children here are
actuated by similar childish instincts and impulses. Drawn by curiosity and impelled by the restless spirit
of youth, boys here as well as there will usually be found whenever the public is permitted to
congregate. The movement of machinery, and indeed anything which arouses the attention of the young
and inquiring mind, will draw them to the neighborhood as inevitably as does the magnet draw the iron
which comes within the range of its magnetic influence. The owners of premises, therefore, whereon
things attractive to children are exposed, or upon which the public are expressly or impliedly permitted
to enter or upon which the owner knows or ought to know children are likely to roam about for pastime
and in play, " must calculate upon this, and take precautions accordingly." In such cases the owner of
the premises can not be heard to say that because the child has entered upon his premises without his
express permission he is a trespasser to whom the owner owes no duty or obligation whatever. The
owner's failure to take reasonable precautions to prevent the child from entering his premises at a place
where he knows or ought to know that children are accustomed to roam about of to which their childish
instincts and impulses are likely to attract them is at least equivalent to an implied license to enter, and
where the child does enter under such conditions the owner's failure to take reasonable precautions to
guard the child against injury from unknown or unseen dangers, placed upon such premises by the
owner, is clearly a breach of duty, responsible, if the child is actually injured, without other fault on its
part than that it had entered on the premises of a stranger without his express invitation or permission.
To hold otherwise would be expose all the children in the community to unknown perils and
unnecessary danger at the whim of the owners or occupants of land upon which they might naturally
and reasonably be expected to enter.
This conclusion is founded on reason, justice, and necessity, and neither is contention that a man has a
right to do what will with his own property or that children should be kept under the care of their parents
or guardians, so as to prevent their entering on the premises of others is of sufficient weight to put in
doubt. In this jurisdiction as well as in the United States all private property is acquired and held under
the tacit condition that it shall not be so used as to injure the equal rights and interests of the community
(see U. S. vs. Toribio,1 No. 5060, decided January 26, 1910), and except as to infants of very tender
years it would be absurd and unreasonable in a community organized as is that in which we lived to
hold that parents or guardian are guilty of negligence or imprudence in every case wherein they permit
growing boys and girls to leave the parental roof unattended, even if in the event of accident to the child
the negligence of the parent could in any event be imputed to the child so as to deprive it a right to
recover in such cases — a point which we neither discuss nor decide.
But while we hold that the entry of the plaintiff upon defendant's property without defendant's express
invitation or permission would not have relieved defendant from responsibility for injuries incurred there
by plaintiff, without other fault on his part, if such injury were attributable to the negligence of the
defendant, we are of opinion that under all the circumstances of this case the negligence of the
defendant in leaving the caps exposed on its premises was not the proximate cause of the injury
received by the plaintiff, which therefore was not, properly speaking, "attributable to the negligence of
the defendant," and, on the other hand, we are satisfied that plaintiffs action in cutting open the
detonating cap and putting match to its contents was the proximate cause of the explosion and of the
resultant injuries inflicted upon the plaintiff, and that the defendant, therefore is not civilly responsible for
the injuries thus incurred.
Plaintiff contends, upon the authority of the Turntable and Torpedo cases, that because of plaintiff's
youth the intervention of his action between the negligent act of the defendant in leaving the caps
exposed on its premises and the explosion which resulted in his injury should not be held to have
contributed in any wise to the accident; and it is because we can not agree with this proposition,
although we accept the doctrine of the Turntable and Torpedo cases, that we have thought proper to
discuss and to consider that doctrine at length in this decision. As was said in case of Railroad Co. vs.
Stout (supra), "While it is the general rule in regard to an adult that to entitle him to recover damages for
an injury resulting from the fault or negligence of another he must himself have been free from fault,
such is not the rule in regard to an infant of tender years. The care and caution required of a child is
according to his maturity and capacity only, and this is to be determined in each case by the
circumstances of the case." As we think we have shown, under the reasoning on which rests the
doctrine of the Turntable and Torpedo cases, no fault which would relieve defendant of responsibility for
injuries resulting from its negligence can be attributed to the plaintiff, a well-grown boy of 15 years of
age, because of his entry upon defendant's uninclosed premises without express permission or
invitation' but it is wholly different question whether such youth can be said to have been free from fault
when he willfully and deliberately cut open the detonating cap, and placed a match to the contents,
knowing, as he undoubtedly did, that his action would result in an explosion. On this point, which must
be determined by "the particular circumstances of this case," the doctrine laid down in the Turntable and
Torpedo cases lends us no direct aid, although it is worthy of observation that in all of the "Torpedo" and
analogous cases which our attention has been directed, the record discloses that the plaintiffs, in whose
favor judgments have been affirmed, were of such tender years that they were held not to have the
capacity to understand the nature or character of the explosive instruments which fell into their hands.
In the case at bar, plaintiff at the time of the accident was a well-grown youth of 15, more mature both
mentally and physically than the average boy of his age; he had been to sea as a cabin boy; was able to
earn P2.50 a day as a mechanical draftsman thirty days after the injury was incurred; and the record
discloses throughout that he was exceptionally well qualified to take care of himself. The evidence of
record leaves no room for doubt that, despite his denials on the witness stand, he well knew the
explosive character of the cap with which he was amusing himself. The series of experiments made by
him in his attempt to produce an explosion, as described by the little girl who was present, admit of no
other explanation. His attempt to discharge the cap by the use of electricity, followed by his efforts to
explode it with a stone or a hammer, and the final success of his endeavors brought about by the
application of a match to the contents of the caps, show clearly that he knew what he was about. Nor
can there be any reasonable doubt that he had reason to anticipate that the explosion might be
dangerous, in view of the fact that the little girl, 9 years of age, who was within him at the time when he
put the match to the contents of the cap, became frightened and ran away.
True, he may not have known and probably did not know the precise nature of the explosion which
might be expected from the ignition of the contents of the cap, and of course he did not anticipate the
resultant injuries which he incurred; but he well knew that a more or less dangerous explosion might be
expected from his act, and yet he willfully, recklessly, and knowingly produced the explosion. It would be
going far to say that "according to his maturity and capacity" he exercised such and "care and caution"
as might reasonably be required of him, or that defendant or anyone else should be held civilly
responsible for injuries incurred by him under such circumstances.
The law fixes no arbitrary age at which a minor can be said to have the necessary capacity to
understand and appreciate the nature and consequences of his own acts, so as to make it negligence
on his part to fail to exercise due care and precaution in the commission of such acts; and indeed it
would be impracticable and perhaps impossible so to do, for in the very nature of things the question of
negligence necessarily depends on the ability of the minor to understand the character of his own acts
and their consequences; and the age at which a minor can be said to have such ability will necessarily
depends of his own acts and their consequences; and at the age at which a minor can be said to have
such ability will necessarily vary in accordance with the varying nature of the infinite variety of acts
which may be done by him. But some idea of the presumed capacity of infants under the laws in force in
these Islands may be gathered from an examination of the varying ages fixed by our laws at which
minors are conclusively presumed to be capable of exercising certain rights and incurring certain
responsibilities, though it can not be said that these provisions of law are of much practical assistance in
cases such as that at bar, except so far as they illustrate the rule that the capacity of a minor to become
responsible for his own acts varies with the varying circumstances of each case. Under the provisions of
the Penal Code a minor over fifteen years of age is presumed to be capable of committing a crime and
is to held criminally responsible therefore, although the fact that he is less than eighteen years of age
will be taken into consideration as an extenuating circumstance (Penal Code, arts. 8 and 9). At 10 years
of age a child may, under certain circumstances, choose which parent it prefers to live with (Code of
Civil Procedure, sec. 771). At 14 may petition for the appointment of a guardian (Id., sec. 551), and may
consent or refuse to be adopted (Id., sec. 765). And males of 14 and females of 12 are capable of
contracting a legal marriage (Civil Code, art. 83; G. O., No. 68, sec. 1).
We are satisfied that the plaintiff in this case had sufficient capacity and understanding to be sensible of
the danger to which he exposed himself when he put the match to the contents of the cap; that he
was sui juris in the sense that his age and his experience qualified him to understand and appreciate
the necessity for the exercise of that degree of caution which would have avoided the injury which
resulted from his own deliberate act; and that the injury incurred by him must be held to have been the
direct and immediate result of his own willful and reckless act, so that while it may be true that these
injuries would not have been incurred but for the negligence act of the defendant in leaving the caps
exposed on its premises, nevertheless plaintiff's own act was the proximate and principal cause of the
accident which inflicted the injury.
The rule of the Roman law was: Quod quis ex culpa sua damnum sentit, non intelligitur sentire. (Digest,
book 50, tit. 17 rule 203.)
The Patidas contain the following provisions:
The just thing is that a man should suffer the damage which comes to him through his own fault, and
that he can not demand reparation therefor from another. (Law 25, tit. 5, Partida 3.)
And they even said that when a man received an injury through his own acts the grievance should be
against himself and not against another. (Law 2, tit. 7, Partida 2.)
According to ancient sages, when a man received an injury through his own acts the grievance should
be against himself and not against another. (Law 2, tit. 7 Partida 2.)
And while there does not appear to be anything in the Civil Code which expressly lays down the law
touching contributory negligence in this jurisdiction, nevertheless, the interpretation placed upon its
provisions by the supreme court of Spain, and by this court in the case of Rakes vs. Atlantic, Gulf and
Pacific Co. (7 Phil. Rep., 359), clearly deny to the plaintiff in the case at bar the right to recover
damages from the defendant, in whole or in part, for the injuries sustained by him.
The judgment of the supreme court of Spain of the 7th of March, 1902 (93 Jurisprudencia Civil, 391), is
directly in point. In that case the court said:
According to the doctrine expressed in article 1902 of the Civil Code, fault or negligence is a source of
obligation when between such negligence and the injury there exists the relation of cause and effect;
but if the injury produced should not be the result of acts or omissions of a third party, the latter has no
obligation to repair the same, although such acts or omission were imprudent or unlawful, and much
less when it is shown that the immediate cause of the injury was the negligence of the injured party
himself.
The same court, in its decision of June 12, 1900, said that "the existence of the alleged fault or
negligence is not sufficient without proof that it, and no other cause, gave rise to the damage."
See also judgment of October 21, 1903.
To similar effect Scaevola, the learned Spanish writer, writing under that title in his Jurisprudencia del
Codigo Civil (1902 Anuario, p. 455), commenting on the decision of March 7, 1902 of the Civil Code,
fault or negligence gives rise to an obligation when between it and the damage there exists the relation
of cause and effect; but if the damage caused does not arise from the acts or omissions of a third
person, there is no obligation to make good upon the latter, even though such acts or omissions be
imprudent or illegal, and much less so when it is shown that the immediate cause of the damage has
been the recklessness of the injured party himself.
And again —
In accordance with the fundamental principle of proof, that the burden thereof is upon the plaintiff, it is
apparent that it is duty of him who shall claim damages to establish their existence. The decisions of
April 9, 1896, and March 18, July, and September 27, 1898, have especially supported the principle, the
first setting forth in detail the necessary points of the proof, which are two: An act or omission on the
part of the person who is to be charged with the liability, and the production of the damage by said act
or omission.
This includes, by inference, the establishment of a relation of cause or effect between the act or
omission and the damage; the latter must be the direct result of one of the first two. As the decision of
March 22, 1881, said, it is necessary that the damages result immediately and directly from an act
performed culpably and wrongfully; "necessarily presupposing a legal ground for imputability." (Decision
of October 29, 1887.)
Negligence is not presumed, but must be proven by him who alleges it. (Scavoela, Jurisprudencia del
Codigo Civil, vol. 6, pp. 551-552.)
(Cf. decisions of supreme court of Spain of June 12, 1900, and June 23, 1900.)
Finally we think the doctrine in this jurisdiction applicable to the case at bar was definitely settled in this
court in the maturely considered case of Rakes vs. Atlantic, Gulf and Pacific Co. (supra), wherein we
held that while "There are many cases (personal injury cases) was exonerated," on the ground that "the
negligence of the plaintiff was the immediate cause of the casualty" (decisions of the 15th of January,
the 19th of February, and the 7th of March, 1902, stated in Alcubilla's Index of that year); none of the
cases decided by the supreme court of Spain "define the effect to be given the negligence of its causes,
though not the principal one, and we are left to seek the theory of the civil law in the practice of other
countries;" and in such cases we declared that law in this jurisdiction to require the application of "the
principle of proportional damages," but expressly and definitely denied the right of recovery when the
acts of the injured party were the immediate causes of the accident.
The doctrine as laid down in that case is as follows:
Difficulty seems to be apprehended in deciding which acts of the injured party shall be considered
immediate causes of the accident. The test is simple. Distinction must be made between the accident
and the injury, between the event itself, without which there could have been no accident, and those
acts of the victim not entering into it, independent of it, but contributing to his own proper hurt. For
instance, the cause of the accident under review was the displacement of the crosspiece or the failure
to replace it. This produces the event giving occasion for damages—that is, the sinking of the track and
the sliding of the iron rails. To this event, the act of the plaintiff in walking by the side of the car did not
contribute, although it was an element of the damage which came to himself. Had the crosspiece been
out of place wholly or partly through his act or omission of duty, that would have been one of the
determining causes of the event or accident, for which he would have been responsible. Where he
contributes to the principal occurrence, as one of its determining factors, he can not recover. Where, in
conjunction with the occurrence, he contributes only to his own injury, he may recover the amount that
the defendant responsible for the event should pay for such injury, less a sum deemed a suitable
equivalent for his own imprudence.
We think it is quite clear that under the doctrine thus stated, the immediate cause of the explosion, the
accident which resulted in plaintiff's injury, was in his own act in putting a match to the contents of the
cap, and that having "contributed to the principal occurrence, as one of its determining factors, he can
not recover."
We have not deemed it necessary to examine the effect of plaintiff's action in picking up upon
defendant's premises the detonating caps, the property of defendant, and carrying the relation of cause
and effect between the negligent act or omission of the defendant in leaving the caps exposed on its
premises and the injuries inflicted upon the plaintiff by the explosion of one of these caps. Under the
doctrine of the Torpedo cases, such action on the part of an infant of very tender years would have no
effect in relieving defendant of responsibility, but whether in view of the well-known fact admitted in
defendant's brief that "boys are snappers-up of unconsidered trifles," a youth of the age and maturity of
plaintiff should be deemed without fault in picking up the caps in question under all the circumstances of
this case, we neither discuss nor decide.
Twenty days after the date of this decision let judgment be entered reversing the judgment of the court
below, without costs to either party in this instance, and ten days thereafter let the record be returned to
the court wherein it originated, where the judgment will be entered in favor of the defendant for the costs
in first instance and the complaint dismissed without day. So ordered.
Arellano, C.J., Torres and Moreland, JJ., concur.
Johnson, J., concurs in the result.
III. DISTINCTIONS
1. QUASI-DELICT vs. DELICT
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.
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 medium period; if it would have constituted a
less grave felony, the penalty of arresto mayor in its minimum and medium periods shall be imposed; if
it would have constituted a light felony, the penalty of arresto menor in its maximum period 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.
When the execution of the act covered by this article shall have only resulted in damage to the property
of another, the offender shall be punished by a fine ranging from an amount equal to the value of said
damages to three times such value, but which shall in no case be less than twenty-five pesos.
A fine not exceeding two hundred pesos and censure shall be imposed upon any person who, by simple
imprudence or negligence, shall cause some wrong which, if done maliciously, would have constituted a
light felony.
In the imposition of these penalties, the court shall exercise their sound discretion, without regard to the
rules prescribed in Article sixty-four.
The provisions contained in this article shall not be applicable:
1. When the penalty provided for the offense is equal to or lower than those provided in the first two
paragraphs of this article, in which case the court shall impose the penalty next lower in degree than
that which should be imposed in the period which they may deem proper to apply.
2. When, by imprudence or negligence and with violation of the Automobile Law, to death of a person
shall be caused, in which case the defendant shall be punished by prision correccional in its medium
and maximum periods.
Reckless imprudence consists in voluntary, but without malice, doing or falling to do an act from which
material damage results by reason of inexcusable lack of precaution on the part of the person
performing of failing to perform such act, taking into consideration his employment or occupation,
degree of intelligence, physical condition and other circumstances regarding persons, time and place.
Simple imprudence consists in the lack of precaution displayed in those cases in which the damage
impending to be caused is not immediate nor the danger clearly manifest.
The penalty next higher in degree to those provided for in this article shall be imposed upon the offender
who fails to lend on the spot to the injured parties such help as may be in this hand to give. (As
amended by R.A. 1790, approved June 21, 1957).
1. G.R. No. L-12191 October 14, 1918
JOSE CANGCO, plaintiff-appellant,
vs.
MANILA RAILROAD CO., defendant-appellee.
Ramon Sotelo for appellant.
Kincaid & Hartigan for appellee.
FISHER, J.:
At the time of the occurrence which gave rise to this litigation the plaintiff, Jose Cangco, was in the
employment of Manila Railroad Company in the capacity of clerk, with a monthly wage of P25. He lived
in the pueblo of San Mateo, in the province of Rizal, which is located upon the line of the defendant
railroad company; and in coming daily by train to the company's office in the city of Manila where he
worked, he used a pass, supplied by the company, which entitled him to ride upon the company's trains
free of charge. Upon the occasion in question, January 20, 1915, the plaintiff arose from his seat in the
second class-car where he was riding and, making, his exit through the door, took his position upon the
steps of the coach, seizing the upright guardrail with his right hand for support.
On the side of the train where passengers alight at the San Mateo station there is a cement platform
which begins to rise with a moderate gradient some distance away from the company's office and
extends along in front of said office for a distance sufficient to cover the length of several coaches. As
the train slowed down another passenger, named Emilio 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 sufficientprima 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.
Separate Opinions
MALCOLM, J., dissenting:
With one sentence in the majority decision, we are of full accord, namely, "It may be admitted that had
plaintiff waited until the train had come to a full stop before alighting, the particular injury suffered by him
could not have occurred." With the general rule relative to a passenger's contributory negligence, we
are likewise in full accord, namely, "An attempt to alight from a moving train is negligence per se."
Adding these two points together, should be absolved from the complaint, and judgment affirmed.
2. G.R. No. L-21438 September 28, 1966
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.
SANCHEZ, J.:
The Court of First Instance of Manila 1 sentenced petitioner to pay respondent Rafael Carrascoso
P25,000.00 by way of moral damages; P10,000.00 as exemplary damages; P393.20 representing the
difference in fare between first class and tourist class for the portion of the trip Bangkok-Rome, these
various amounts with interest at the legal rate, from the date of the filing of the complaint until paid; plus
P3,000.00 for attorneys' fees; and the costs of suit.
On appeal,2 the Court of Appeals slightly reduced the amount of refund on Carrascoso's plane ticket
from P393.20 to P383.10, and voted to affirm the appealed decision "in all other respects", with costs
against petitioner.
The case is now before us for review on certiorari.
The facts declared by the Court of Appeals as " fully supported by the evidence of record", are:
Plaintiff, a civil engineer, was a member of a group of 48 Filipino pilgrims that left Manila for Lourdes on
March 30, 1958.
On March 28, 1958, the defendant, Air France, through its authorized agent, Philippine Air Lines, Inc.,
issued to plaintiff a "first class" round trip airplane ticket from Manila to Rome. From Manila to Bangkok,
plaintiff travelled in "first class", but at Bangkok, the Manager of the defendant airline forced plaintiff to
vacate the "first class" seat that he was occupying because, in the words of the witness Ernesto G.
Cuento, there was a "white man", who, the Manager alleged, had a "better right" to the seat. When
asked to vacate his "first class" seat, the plaintiff, as was to be expected, refused, and told defendant's
Manager that his seat would be taken over his dead body; a commotion ensued, and, according to said
Ernesto G. Cuento, "many of the Filipino passengers got nervous in the tourist class; when they found
out that Mr. Carrascoso was having a hot discussion with the white man [manager], they came all
across to Mr. Carrascoso and pacified Mr. Carrascoso to give his seat to the white man" (Transcript, p.
12, Hearing of May 26, 1959); and plaintiff reluctantly gave his "first class" seat in the plane.3
1. The 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". 16They consist of the court's "conclusions" with respect to the
determinative facts in issue". 17 A question of law, upon the other hand, has been declared as "one
which does not call for an examination of the probative value of the evidence presented by the
parties." 18
2. By statute, "only questions of law may be raised" in an appeal by certiorari from a judgment of the
Court of Appeals. 19 That judgment is conclusive as to the facts. It is not appropriately the business of
this Court to alter the facts or to review the questions of fact. 20
With these guideposts, we now face the problem of whether the findings of fact of the Court of Appeals
support its judgment.
3. Was Carrascoso entitled to the first class seat he claims?
It is conceded in all quarters that on March 28, 1958 he paid to and received from petitioner a first class
ticket. But petitioner asserts that said ticket did not represent the true and complete intent and
agreement of the parties; that said respondent knew that he did not have confirmed reservations for first
class on any specific flight, although he had tourist class protection; that, accordingly, the issuance of a
first class ticket was no guarantee that he would have a first class ride, but that such would depend
upon the availability of first class seats.
These are matters which petitioner has thoroughly presented and discussed in its brief before the Court
of Appeals under its third assignment of error, which reads: "The trial court erred in finding that plaintiff
had confirmed reservations for, and a right to, first class seats on the "definite" segments of his journey,
particularly that from Saigon to Beirut". 21
And, the Court of Appeals disposed of this contention thus:
Defendant seems to capitalize on the argument that the issuance of a first-class ticket was no
guarantee that the passenger to whom the same had been issued, would be accommodated in the first-
class compartment, for as in the case of plaintiff he had yet to make arrangements upon arrival at every
station for the necessary first-class reservation. We are not impressed by such a reasoning. We cannot
understand how a reputable firm like defendant airplane company could have the indiscretion to give out
tickets it never meant to honor at all. It received the corresponding amount in payment of first-class
tickets and yet it allowed the passenger to be at the mercy of its employees. It is more in keeping with
the ordinary course of business that the company should know whether or riot the tickets it issues are to
be honored or not.22
Not that the Court of Appeals is alone. The trial court similarly disposed of petitioner's contention, thus:
On the fact that plaintiff paid for, and was issued a "First class" ticket, there can be no question. Apart
from his testimony, see plaintiff's Exhibits "A", "A-1", "B", "B-1," "B-2", "C" and "C-1", and defendant's
own witness, Rafael Altonaga, confirmed plaintiff's testimony and testified as follows:
Q. In these tickets there are marks "O.K." From what you know, what does this OK mean?
A. That the space is confirmed.
Q. Confirmed for first class?
A. Yes, "first class". (Transcript, p. 169)
xxx xxx xxx
Defendant tried to prove by the testimony of its witnesses Luis Zaldariaga and Rafael Altonaga that
although plaintiff paid for, and was issued a "first class" airplane ticket, the ticket was subject to
confirmation in Hongkong. The court cannot give credit to the testimony of said witnesses. Oral
evidence cannot prevail over written evidence, and plaintiff's Exhibits "A", "A-l", "B", "B-l", "C" and "C-1"
belie the testimony of said witnesses, and clearly show that the plaintiff was issued, and paid for, a first
class ticket without any reservation whatever.
Furthermore, as hereinabove shown, defendant's own witness Rafael Altonaga testified that the
reservation for a "first class" accommodation for the plaintiff was confirmed. The court cannot believe
that after such confirmation defendant had a verbal understanding with plaintiff that the "first class"
ticket issued to him by defendant would be subject to confirmation in Hongkong. 23
We have heretofore adverted to the fact that except for a slight difference of a few pesos in the amount
refunded on Carrascoso's ticket, the decision of the Court of First Instance was affirmed by the Court of
Appeals in all other respects. We hold the view that such a judgment of affirmance has merged the
judgment of the lower court. 24Implicit in that affirmance is a determination by the Court of Appeals that
the proceeding in the Court of First Instance was free from prejudicial error and "all questions raised by
the assignments of error and all questions that might have been raised are to be regarded as finally
adjudicated against the appellant". So also, the judgment affirmed "must be regarded as free from all
error". 25 We reached this policy construction because nothing in the decision of the Court of Appeals on
this point would suggest that its findings of fact are in any way at war with those of the trial court. Nor
was said affirmance by the Court of Appeals upon a ground or grounds different from those which were
made the basis of the conclusions of the trial court. 26
If, as petitioner underscores, a first-class-ticket holder is not entitled to a first class seat, notwithstanding
the fact that seat availability in specific flights is therein confirmed, then an air passenger is placed in the
hollow of the hands of an airline. What security then can a passenger have? It will always be an easy
matter for an airline aided by its employees, to strike out the very stipulations in the ticket, and say that
there was a verbal agreement to the contrary. What if the passenger had a schedule to fulfill? We have
long learned that, as a rule, a written document speaks a uniform language; that spoken word could be
notoriously unreliable. If only to achieve stability in the relations between passenger and air carrier,
adherence to the ticket so issued is desirable. Such is the case here. The lower courts refused to
believe the oral evidence intended to defeat the covenants in the ticket.
The foregoing are the considerations which point to the conclusion that there are facts upon which the
Court of Appeals predicated the finding that respondent Carrascoso had a first class ticket and was
entitled to a first class seat at Bangkok, which is a stopover in the Saigon to Beirut leg of the
flight. 27 We perceive no "welter of distortions by the Court of Appeals of petitioner's statement of its
position", as charged by petitioner. 28 Nor do we subscribe to petitioner's accusation that respondent
Carrascoso "surreptitiously took a first class seat to provoke an issue". 29 And this because, as
petitioner states, Carrascoso went to see the Manager at his office in Bangkok "to confirm my seat and
because from Saigon I was told again to see the Manager". 30 Why, then, was he allowed to take a first
class seat in the plane at Bangkok, if he had no seat? Or, if another had a better right to the seat?
4. Petitioner assails respondent court's award of moral damages. Petitioner's trenchant claim is that
Carrascoso's action is planted upon breach of contract; that to authorize an award for moral damages
there must be an averment of fraud or bad faith;31 and that the decision of the Court of Appeals fails to
make a finding of bad faith. The pivotal allegations in the complaint bearing on this issue are:
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. 43And this, because of the relation which an air-carrier sustains with the public. Its business is
mainly with the travelling public. It invites people to avail of the comforts and advantages it offers. The
contract of air carriage, therefore, generates a relation attended with a public duty. Neglect or
malfeasance of the carrier's employees, naturally, could give ground for an action for damages.
Passengers do not contract merely for transportation. They have a right to be treated by the carrier's
employees with kindness, respect, courtesy and due consideration. They are entitled to be protected
against personal misconduct, injurious language, indignities and abuses from such employees. So it is,
that any rule or discourteous conduct on the part of employees towards a passenger gives the latter an
action for damages against the carrier. 44
Thus, "Where a steamship company 45 had accepted a passenger's check, it was a breach of contract
and a tort, giving a right of action for its agent in the presence of third persons to falsely notify her that
the check was worthless and demand payment under threat of ejection, though the language used was
not insulting and she was not ejected." 46 And this, because, although the relation of passenger and
carrier is "contractual both in origin and nature" nevertheless "the act that breaks the contract may be
also a tort". 47 And in another case, "Where a passenger on a railroad train, when the conductor came to
collect his fare tendered him the cash fare to a point where the train was scheduled not to stop, and told
him that as soon as the train reached such point he would pay the cash fare from that point to
destination, there was nothing in the conduct of the passenger which justified the conductor in using
insulting language to him, as by calling him a lunatic," 48 and the Supreme Court of South Carolina there
held the carrier liable for the mental suffering of said passenger.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 —
49
I will allow that as part of his testimony.
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.
Concepcion, C.J., Reyes, J.B.L., Barrera, Dizon, Regala, Makalintal, Zaldivar and Castro, JJ., concur.
Bengzon, J.P., J., took no part.
3. G.R. No. 145804 February 6, 2003
LIGHT RAIL TRANSIT AUTHORITY & RODOLFO ROMAN, petitioners,
vs.
MARJORIE NAVIDAD, Heirs of the Late NICANOR NAVIDAD & PRUDENT SECURITY
AGENCY, respondents.
DECISION
VITUG, J.:
The case before the Court is an appeal from the decision and resolution of the Court of Appeals,
promulgated on 27 April 2000 and 10 October 2000, respectively, in CA-G.R. CV No. 60720, entitled
"Marjorie Navidad and Heirs of the Late Nicanor Navidad vs. Rodolfo Roman, et. al.," which has
modified the decision of 11 August 1998 of the Regional Trial Court, Branch 266, Pasig City,
exonerating Prudent Security Agency (Prudent) from liability and finding Light Rail Transit Authority
(LRTA) and Rodolfo Roman liable for damages on account of the death of Nicanor Navidad.
On 14 October 1993, about half an hour past seven o’clock in the evening, Nicanor Navidad, then
drunk, entered the EDSA LRT station after purchasing a "token" (representing payment of the fare).
While Navidad was standing on the platform near the LRT tracks, Junelito Escartin, the security guard
assigned to the area approached Navidad. A misunderstanding or an altercation between the two
apparently ensued that led to a fist fight. No evidence, however, was adduced to indicate how the fight
started or who, between the two, delivered the first blow or how Navidad later fell on the LRT tracks. At
the exact moment that Navidad fell, an LRT train, operated by petitioner Rodolfo Roman, was coming
in. Navidad was struck by the moving train, and he was killed instantaneously.
On 08 December 1994, the widow of Nicanor, herein respondent Marjorie Navidad, along with her
children, filed a complaint for damages against Junelito Escartin, Rodolfo Roman, the LRTA, the Metro
Transit Organization, Inc. (Metro Transit), and Prudent for the death of her husband. LRTA and Roman
filed a counterclaim against Navidad and a cross-claim against Escartin and Prudent. Prudent, in its
answer, denied liability and averred that it had exercised due diligence in the selection and supervision
of its security guards.
The LRTA and Roman presented their evidence while Prudent and Escartin, instead of presenting
evidence, filed a demurrer contending that Navidad had failed to prove that Escartin was negligent in his
assigned task. On 11 August 1998, the trial court rendered its decision; it adjudged:
"WHEREFORE, judgment is hereby rendered in favor of the plaintiffs and against the defendants
Prudent Security and Junelito Escartin ordering the latter to pay jointly and severally the plaintiffs the
following:
"a) 1) Actual damages of P44,830.00;
2) Compensatory damages of P443,520.00;
3) Indemnity for the death of Nicanor Navidad in the sum of P50,000.00;
"b) Moral damages of P50,000.00;
"c) Attorney’s fees of P20,000;
"d) Costs of suit.
"The complaint against defendants LRTA and Rodolfo Roman are dismissed for lack of merit.
"The compulsory counterclaim of LRTA and Roman are likewise dismissed." 1
Prudent appealed to the Court of Appeals. On 27 August 2000, the appellate court promulgated its now
assailed decision exonerating Prudent from any liability for the death of Nicanor Navidad and, instead,
holding the LRTA and Roman jointly and severally liable thusly:
"WHEREFORE, the assailed judgment is hereby MODIFIED, by exonerating the appellants from any
liability for the death of Nicanor Navidad, Jr. Instead, appellees Rodolfo Roman and the Light Rail
Transit Authority (LRTA) are held liable for his death and are hereby directed to pay jointly and severally
to the plaintiffs-appellees, the following amounts:
a) P44,830.00 as actual damages;
b) P50,000.00 as nominal damages;
c) P50,000.00 as moral damages;
d) P50,000.00 as indemnity for the death of the deceased; and
e) P20,000.00 as and for attorney’s fees."2
The appellate court ratiocinated that while the deceased might not have then as yet boarded the train, a
contract of carriage theretofore had already existed when the victim entered the place where
passengers were supposed to be after paying the fare and getting the corresponding token therefor. In
exempting Prudent from liability, the court stressed that there was nothing to link the security agency to
the death of Navidad. It said that Navidad failed to show that Escartin inflicted fist blows upon the victim
and the evidence merely established the fact of death of Navidad by reason of his having been hit by
the train owned and managed by the LRTA and operated at the time by Roman. The appellate court
faulted petitioners for their failure to present expert evidence to establish the fact that the application of
emergency brakes could not have stopped the train.
The appellate court denied petitioners’ motion for reconsideration in its resolution of 10 October 2000.
In their present recourse, petitioners recite alleged errors on the part of the appellate court; viz:
"I.
THE HONORABLE COURT OF APPEALS GRAVELY ERRED BY DISREGARDING THE FINDINGS
OF FACTS BY THE TRIAL COURT
"II.
THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN FINDING THAT PETITIONERS ARE
LIABLE FOR THE DEATH OF NICANOR NAVIDAD, JR.
"III.
THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN FINDING THAT RODOLFO ROMAN
IS AN EMPLOYEE OF LRTA."3
Petitioners would contend that the appellate court ignored the evidence and the factual findings of the
trial court by holding them liable on the basis of a sweeping conclusion that the presumption of
negligence on the part of a common carrier was not overcome. Petitioners would insist that Escartin’s
assault upon Navidad, which caused the latter to fall on the tracks, was an act of a stranger that could
not have been foreseen or prevented. The LRTA would add that the appellate court’s conclusion on the
existence of an employer-employee relationship between Roman and LRTA lacked basis because
Roman himself had testified being an employee of Metro Transit and not of the LRTA.
Respondents, supporting the decision of the appellate court, contended that a contract of carriage was
deemed created from the moment Navidad paid the fare at the LRT station and entered the premises of
the latter, entitling Navidad to all the rights and protection under a contractual relation, and that the
appellate court had correctly held LRTA and Roman liable for the death of Navidad in failing to exercise
extraordinary diligence imposed upon a common carrier.
Law and jurisprudence dictate that a common carrier, both from the nature of its business and for
reasons of public policy, is burdened with the duty of exercising utmost diligence in ensuring the safety
of passengers.4 The Civil Code, governing the liability of a common carrier for death of or injury to its
passengers, provides:
"Article 1755. A common carrier is bound to carry the passengers safely as far as human care and
foresight can provide, using the utmost diligence of very cautious persons, with a due regard for all the
circumstances.
"Article 1756. In case of death of or injuries to passengers, common carriers are presumed to have
been at fault or to have acted negligently, unless they prove that they observed extraordinary diligence
as prescribed in articles 1733 and 1755."
"Article 1759. Common carriers are liable for the death of or injuries to passengers through the
negligence or willful acts of the former’s employees, although such employees may have acted beyond
the scope of their authority or in violation of the orders of the common carriers.
"This liability of the common carriers does not cease upon proof that they exercised all the diligence of a
good father of a family in the selection and supervision of their employees."
"Article 1763. A common carrier is responsible for injuries suffered by a passenger on account of the
willful acts or negligence of other passengers or of strangers, if the common carrier’s employees
through the exercise of the diligence of a good father of a family could have prevented or stopped the
act or omission."
The law requires common carriers to carry passengers safely using the utmost diligence of very
cautious persons with due regard for all circumstances.5 Such duty of a common carrier to provide
safety to its passengers so obligates it not only during the course of the trip but for so long as the
passengers are within its premises and where they ought to be in pursuance to the contract of
carriage.6 The statutory provisions render a common carrier liable for death of or injury to passengers
(a) through the negligence or wilful acts of its employees or b) on account of wilful acts or negligence of
other passengers or of strangers if the common carrier’s employees through the exercise of due
diligence could have prevented or stopped the act or omission. 7 In case of such death or injury, a carrier
is presumed to have been at fault or been negligent, and 8 by simple proof of injury, the passenger is
relieved of the duty to still establish the fault or negligence of the carrier or of its employees and the
burden shifts upon the carrier to prove that the injury is due to an unforeseen event or to force
majeure.9 In the absence of satisfactory explanation by the carrier on how the accident occurred, which
petitioners, according to the appellate court, have failed to show, the presumption would be that it has
been at fault,10 an exception from the general rule that negligence must be proved. 11
The foundation of LRTA’s liability is the contract of carriage and its obligation to indemnify the victim
arises from the breach of that contract by reason of its failure to exercise the high diligence required of
the common carrier. In the discharge of its commitment to ensure the safety of passengers, a carrier
may choose to hire its own employees or avail itself of the services of an outsider or an independent
firm to undertake the task. In either case, the common carrier is not relieved of its responsibilities under
the contract of carriage.
Should Prudent be made likewise liable? If at all, that liability could only be for tort under the provisions
of Article 217612 and related provisions, in conjunction with Article 2180,13 of the Civil Code. The
premise, however, for the employer’s liability is negligence or fault on the part of the employee. Once
such fault is established, the employer can then be made liable on the basis of the presumption juris
tantum that the employer failed to exercise diligentissimi patris families in the selection and supervision
of its employees. The liability is primary and can only be negated by showing due diligence in the
selection and supervision of the employee, a factual matter that has not been shown. Absent such a
showing, one might ask further, how then must the liability of the common carrier, on the one hand, and
an independent contractor, on the other hand, be described? It would be solidary. A contractual
obligation can be breached by tort and when the same act or omission causes the injury, one resulting
in culpa contractual and the other in culpa aquiliana, Article 2194 14 of the Civil Code can well apply.15 In
fine, a liability for tort may arise even under a contract, where tort is that which breaches the
contract.16 Stated differently, when an act which constitutes a breach of contract would have itself
constituted the source of a quasi-delictual liability had no contract existed between the parties, the
contract can be said to have been breached by tort, thereby allowing the rules on tort to apply.17
Regrettably for LRT, as well as perhaps the surviving spouse and heirs of the late Nicanor Navidad, this
Court is concluded by the factual finding of the Court of Appeals that "there is nothing to link (Prudent)
to the death of Nicanor (Navidad), for the reason that the negligence of its employee, Escartin, has not
been duly proven x x x." This finding of the appellate court is not without substantial justification in our
own review of the records of the case.
There being, similarly, no showing that petitioner Rodolfo Roman himself is guilty of any culpable act or
omission, he must also be absolved from liability. Needless to say, the contractual tie between the LRT
and Navidad is not itself a juridical relation between the latter and Roman; thus, Roman can be made
liable only for his own fault or negligence.
The award of nominal damages in addition to actual damages is untenable. Nominal damages are
adjudicated in order that a right of the plaintiff, which has been violated or invaded by the defendant,
may be vindicated or recognized, and not for the purpose of indemnifying the plaintiff for any loss
suffered by him.18 It is an established rule that nominal damages cannot co-exist with compensatory
damages.19
WHEREFORE, the assailed decision of the appellate court is AFFIRMED with MODIFICATION but only
in that (a) the award of nominal damages is DELETED and (b) petitioner Rodolfo Roman is absolved
from liability. No costs.
SO ORDERED.
Davide, Jr., C.J., (Chairman), Ynares-Santiago, Carpio and Azcuna, JJ., concur.
4. G.R. No. 147791 September 8, 2006
CONSTRUCTION DEVELOPMENT CORPORATION OF THE PHILIPPINES, petitioner,
vs.
REBECCA G. ESTRELLA, RACHEL E. FLETCHER, PHILIPPINE PHOENIX SURETY & INSURANCE
INC., BATANGAS LAGUNA TAYABAS BUS CO., and WILFREDO DATINGUINOO, respondents.
DECISION
YNARES-SANTIAGO, J.:
This petition for review assails the March 29, 2001 Decision 1 of the Court of Appeals in CA-G.R. CV No.
46896, which affirmed with modification the February 9, 1993 Decision 2 of the Regional Trial Court of
Manila, Branch 13, in Civil Case No. R-82-2137, finding Batangas Laguna Tayabas Bus Co. (BLTB) and
Construction Development Corporation of the Philippines (CDCP) liable for damages.
The antecedent facts are as follows:
On December 29, 1978, respondents Rebecca G. Estrella and her granddaughter, Rachel E. Fletcher,
boarded in San Pablo City, a BLTB bus bound for Pasay City. However, they never reached their
destination because their bus was rammed from behind by a tractor-truck of CDCP in the South
Expressway. The strong impact pushed forward their seats and pinned their knees to the seats in front
of them. They regained consciousness only when rescuers created a hole in the bus and extricated their
legs from under the seats. They were brought to the Makati Medical Center where the doctors
diagnosed their injuries to be as follows:
Medical Certificate of Rebecca Estrella
Fracture, left tibia mid 3rd
Lacerated wound, chin
Contusions with abrasions, left lower leg
Fracture, 6th and 7th ribs, right3
Medical Certificate of Rachel Fletcher
Extensive lacerated wounds, right leg posterior aspect popliteal area
and antero-lateral aspect mid lower leg with severance of muscles.
Partial amputation BK left leg with severance of gastro-soleus and
antero-lateral compartment of lower leg.
Fracture, open comminuted, both tibial4
Thereafter, respondents filed a Complaint5 for damages against CDCP, BLTB, Espiridion Payunan, Jr.
and Wilfredo Datinguinoo before the Regional Trial Court of Manila, Branch 13. They alleged (1) that
Payunan, Jr. and Datinguinoo, who were the drivers of CDCP and BLTB buses, respectively, were
negligent and did not obey traffic laws; (2) that BLTB and CDCP did not exercise the diligence of a good
father of a family in the selection and supervision of their employees; (3) that BLTB allowed its bus to
operate knowing that it lacked proper maintenance thus exposing its passengers to grave danger; (4)
that they suffered actual damages amounting to P250,000.00 for Estrella and P300,000.00 for Fletcher;
(5) that they suffered physical discomfort, serious anxiety, fright and mental anguish, besmirched
reputation and wounded feelings, moral shock, and lifelong social humiliation; (6) that defendants failed
to act with justice, give respondents their due, observe honesty and good faith which entitles them to
claim for exemplary damage; and (7) that they are entitled to a reasonable amount of attorney's fees
and litigation expenses.
CDCP filed its Answer6 which was later amended to include a third-party complaint against Philippine
Phoenix Surety and Insurance, Inc. (Phoenix).7
On February 9, 1993, the trial court rendered a decision finding CDCP and BLTB and their employees
liable for damages, the dispositive portion of which, states:
WHEREFORE, judgment is rendered:
In the Complaint –
1. In favor of the plaintiffs and against the defendants BLTB, Wilfredo Datinguinoo, Construction and
Development Corporation of the Philippines (now PNCC) and Espiridion Payunan, Jr., ordering said
defendants, jointly and severally to pay the plaintiffs the sum of P79,254.43 as actual damages and to
pay the sum of P10,000.00 as attorney's fees or a total of P89,254.43;
2. In addition, defendant Construction and Development Corporation of the Philippines and defendant
Espiridion Payunan, Jr., shall pay the plaintiffs the amount of Fifty Thousand (P50,000.00) Pesos to
plaintiff Rachel Fletcher and Twenty Five Thousand (P25,000.00) Pesos to plaintiff Rebecca Estrella;
3. On the counterclaim of BLTB Co. and Wilfredo Datinguinoo –
Dismissing the counterclaim;
4. On the crossclaim against Construction and Development Corporation of the Philippines (now PNCC)
and Espiridion Payunan, Jr. –
Dismissing the crossclaim;
5. On the counterclaim of Construction and Development Corporation of the Philippines (now PNCC) –
Dismissing the counterclaim;
6. On the crossclaim against BLTB –
Dismissing the crossclaim;
7. On the Third Party Complaint by Construction and Development Corporation of the Philippines
against Philippine Phoenix Surety and Insurance, Incorporated –
Dismissing the Third Party Complaint.
SO ORDERED.8
The trial court held that BLTB, as a common carrier, was bound to observe extraordinary diligence in
the vigilance over the safety of its passengers. It must carry the passengers safely as far as human care
and foresight provide, using the utmost diligence of very cautious persons, with a due regard for all the
circumstances. Thus, where a passenger dies or is injured, the carrier is presumed to have been at fault
or has acted negligently. BLTB's inability to carry respondents to their destination gave rise to an action
for breach of contract of carriage while its failure to rebut the presumption of negligence made it liable to
respondents for the breach.9
Regarding CDCP, the trial court found that the tractor-truck it owned bumped the BLTB bus from
behind. Evidence showed that CDCP's driver was reckless and driving very fast at the time of the
incident. The gross negligence of its driver raised the presumption that CDCP was negligent either in
the selection or in the supervision of its employees which it failed to rebut thus making it and its driver
liable to respondents.10
Unsatisfied with the award of damages and attorney's fees by the trial court, respondents moved that
the decision be reconsidered but was denied. Respondents elevated the case 11 to the Court of Appeals
which affirmed the decision of the trial court but modified the amount of damages, the dispositive portion
of which provides:
WHEREFORE, the assailed decision dated October 7, 1993 of the Regional Trial Court, Branch 13,
Manila is hereby AFFIRMED with the following MODIFICATION:
1. The interest of six (6) percent per annum on the actual damages of P79,354.43 should commence to
run from the time the judicial demand was made or from the filing of the complaint on February 4, 1980;
2. Thirty (30) percent of the total amount recovered is hereby awarded as attorney's fees;
3. Defendants-appellants Construction and Development Corporation of the Philippines (now PNCC)
and Espiridion Payunan, Jr. are ordered to pay plaintiff-appellants Rebecca Estrella and Rachel
Fletcher the amount of Twenty Thousand (P20,000.00) each as exemplary damages and P80,000.00 by
way of moral damages to Rachel Fletcher.
SO ORDERED.12
The Court of Appeals held that the actual or compensatory damage sought by respondents for the
injuries they sustained in the form of hospital bills were already liquidated and were ascertained.
Accordingly, the 6% interest per annum should commence to run from the time the judicial demand was
made or from the filing of the complaint and not from the date of judgment. The Court of Appeals also
awarded attorney's fees equivalent to 30% of the total amount recovered based on the retainer
agreement of the parties. The appellate court also held that respondents are entitled to exemplary and
moral damages. Finally, it affirmed the ruling of the trial court that the claim of CDCP against Phoenix
had already prescribed.
Hence, this petition raising the following issues:
I
WHETHER OR NOT THE COURT OF APPEALS GRAVELY ERRED IN NOT HOLDING
RESPONDENTS BLTB AND/OR ITS DRIVER WILFREDO DATINGUINOO SOLELY LIABLE FOR THE
DAMAGES SUSTAINED BY HEREIN RESPONDENTS FLETCHER AND ESTRELLA.
II
WHETHER OR NOT THE COURT OF APPEALS GRAVELY ERRED IN AWARDING EXCESSIVE OR
UNFOUNDED DAMAGES, ATTORNEY'S FEES AND LEGAL INTEREST TO RESPONDENTS
FLETCHER AND ESTRELLA.
III
WHETHER OR NOT THE COURT OF APPEALS GRAVELY ERRED IN NOT HOLDING
RESPONDENT PHOENIX LIABLE UNDER ITS INSURANCE POLICY ON THE GROUND OF
PRESCRIPTION.
The issues for resolution are as follows: (1) whether BLTB and its driver Wilfredo Datinguinoo are solely
liable for the damages sustained by respondents; (2) whether the damages, attorney's fees and legal
interest awarded by the CA are excessive and unfounded; (3) whether CDCP can recover under its
insurance policy from Phoenix.
Petitioner contends that since it was made solidarily liable with BLTB for actual damages and attorney's
fees in paragraph 1 of the trial court's decision, then it should no longer be held liable to pay the
amounts stated in paragraph 2 of the same decision. Petitioner claims that the liability for actual
damages and attorney's fees is based on culpa contractual, thus, only BLTB should be held liable. As
regards paragraph 2 of the trial court's decision, petitioner claims that it is ambiguous and arbitrary
because the dispositive portion did not state the basis and nature of such award.
Respondents, on the other hand, argue that petitioner is also at fault, hence, it was properly joined as a
party. There may be an action arising out of one incident where questions of fact are common to all.
Thus, the cause of action based on culpa aquiliana in the civil suit they filed against it was valid.
The petition lacks merit.
The case filed by respondents against petitioner is an action for culpa aquiliana or quasi-delict under
Article 2176 of the Civil Code.13 In this regard, Article 2180 provides that the obligation imposed by
Article 2176 is demandable for the acts or omissions of those persons for whom one is responsible.
Consequently, an action based on quasi-delict may be instituted against the employer for an employee's
act or omission. The liability for the negligent conduct of the subordinate is direct and primary, but is
subject to the defense of due diligence in the selection and supervision of the employee. 14 In the instant
case, the trial court found that petitioner failed to prove that it exercised the diligence of a good father of
a family in the selection and supervision of Payunan, Jr.
The trial court and the Court of Appeals found petitioner solidarily liable with BLTB for the actual
damages suffered by respondents because of the injuries they sustained. It was established that
Payunan, Jr. was driving recklessly because of the skid marks as shown in the sketch of the police
investigator.
It is well-settled in Fabre, Jr. v. Court of Appeals,15 that the owner of the other vehicle which collided
with a common carrier is solidarily liable to the injured passenger of the same. We held, thus:
The same rule of liability was applied in situations where the negligence of the driver of the bus on
which plaintiff was riding concurred with the negligence of a third party who was the driver of another
vehicle, thus causing an accident. In Anuran v. Buño, Batangas Laguna Tayabas Bus Co. v.
Intermediate Appellate Court, and Metro Manila Transit Corporation v. Court of Appeals, the bus
company, its driver, the operator of the other vehicle and the driver of the vehicle were jointly
and severally held liable to the injured passenger or the latter's heirs. The basis of this allocation
of liability was explained in Viluan v. Court of Appeals, thus:
Nor should it make any difference that the liability of petitioner [bus owner] springs from
contract while that of respondents [owner and driver of other vehicle] arises from quasi-delict.As
early as 1913, we already ruled in Gutierrez vs. Gutierrez, 56 Phil. 177, that in case of injury to a
passenger due to the negligence of the driver of the bus on which he was riding and of the driver of
another vehicle, the drivers as well as the owners of the two vehicles are jointly and severally liable for
damages. x x x
xxxx
As in the case of BLTB, private respondents in this case and her co-plaintiffs did not stake out their
claim against the carrier and the driver exclusively on one theory, much less on that of breach of
contract alone. After all, it was permitted for them to allege alternative causes of action and join
as many parties as may be liable on such causes of action so long as private respondent and
her co-plaintiffs do not recover twice for the same injury. What is clear from the cases is the intent
of the plaintiff there to recover from both the carrier and the driver, thus justifying the holding that the
carrier and the driver were jointly and severally liable because their separate and distinct acts concurred
to produce the same injury.16(Emphasis supplied)
In a "joint" obligation, each obligor answers only for a part of the whole liability; in a "solidary" or "joint
and several" obligation, the relationship between the active and the passive subjects is so close that
each of them must comply with or demand the fulfillment of the whole obligation. In Lafarge Cement v.
Continental Cement Corporation,17 we reiterated that joint tort feasors are jointly and severally liable for
the tort which they commit. Citing Worcester v. Ocampo,18 we held that:
x x x The difficulty in the contention of the appellants is that they fail to recognize that the basis of the
present action is tort. They fail to recognize the universal doctrine that each joint tort feasor is not only
individually liable for the tort in which he participates, but is also jointly liable with his tort feasors. x x x
It may be stated as a general rule that joint tort feasors are all the persons who command, instigate,
promote, encourage, advise, countenance, cooperate in, aid or abet the commission of a tort, or who
approve of it after it is done, if done for their benefit. They are each liable as principals, to the same
extent and in the same manner as if they had performed the wrongful act themselves. x x x
Joint tort feasors are jointly and severally liable for the tort which they commit. The persons injured may
sue all of them or any number less than all. Each is liable for the whole damages caused by all, and all
together are jointly liable for the whole damage. It is no defense for one sued alone, that the others who
participated in the wrongful act are not joined with him as defendants; nor is it any excuse for him that
his participation in the tort was insignificant as compared to that of the others. x x x
Joint tort feasors are not liable pro rata. The damages can not be apportioned among them, except
among themselves. They cannot insist upon an apportionment, for the purpose of each paying an
aliquot part. They are jointly and severally liable for the whole amount. x x x
A payment in full for the damage done, by one of the joint tort feasors, of course satisfies any claim
which might exist against the others. There can be but satisfaction. The release of one of the joint tort
feasors by agreement generally operates to discharge all. x x x
Of course the court during trial may find that some of the alleged tort feasors are liable and that others
are not liable. The courts may release some for lack of evidence while condemning others of the alleged
tort feasors. And this is true even though they are charged jointly and severally.19
Petitioner's claim that paragraph 2 of the dispositive portion of the trial court's decision is ambiguous
and arbitrary and also entitles respondents to recover twice is without basis. In the body of the trial
court's decision, it was clearly stated that petitioner and its driver Payunan, Jr., are jointly and solidarily
liable for moral damages in the amount of P50,000.00 to respondent Fletcher and P25,000.00 to
respondent Estrella.20 Moreover, there could be no double recovery because the award in paragraph 2
is for moral damages while the award in paragraph 1 is for actual damages and attorney's fees.
Petitioner next claims that the damages, attorney's fees, and legal interest awarded by the Court of
Appeals are excessive.
Moral damages may be recovered in quasi-delicts causing physical injuries.21 The award of moral
damages in favor of Fletcher and Estrella in the amount of P80,000.00 must be reduced since prevailing
jurisprudence fixed the same at P50,000.00.22 While moral damages are not intended to enrich the
plaintiff at the expense of the defendant, the award should nonetheless be commensurate to the
suffering inflicted.23
The Court of Appeals correctly awarded respondents exemplary damages in the amount of P20,000.00
each. Exemplary damages may be awarded in addition to moral and compensatory damages. 24 Article
2231 of the Civil Code also states that in quasi-delicts, exemplary damages may be granted if the
defendant acted with gross negligence.25 In this case, petitioner's driver was driving recklessly at the
time its truck rammed the BLTB bus. Petitioner, who has direct and primary liability for the negligent
conduct of its subordinates, was also found negligent in the selection and supervision of its employees.
In Del Rosario v. Court of Appeals,26 we held, thus:
ART. 2229 of the Civil Code also provides that such damages may be imposed, by way of example or
correction for the public good. While exemplary damages cannot be recovered as a matter of right, they
need not be proved, although plaintiff must show that he is entitled to moral, temperate or compensatory
damages before the court may consider the question of whether or not exemplary damages should be
awarded. Exemplary Damages are imposed not to enrich one party or impoverish another but to serve
as a deterrent against or as a negative incentive to curb socially deleterious actions.
Regarding attorney's fees, we held in Traders Royal Bank Employees Union-Independent v. National
Labor Relations Commission,27 that:
There are two commonly accepted concepts of attorney's fees, the so-called ordinary and extraordinary.
In its ordinary concept, an attorney's fee is the reasonable compensation paid to a lawyer by his client
for the legal services he has rendered to the latter. The basis of this compensation is the fact of his
employment by and his agreement with the client.
In its extraordinary concept, an attorney's fee is an indemnity for damages ordered by the court
to be paid by the losing party in a litigation. The basis of this is any of the cases provided by law
where such award can be made, such as those authorized in Article 2208, Civil Code, and is payable
not to the lawyer but to the client, unless they have agreed that the award shall pertain to the
lawyer as additional compensation or as part thereof.28 (Emphasis supplied)
In the instant case, the Court of Appeals correctly awarded attorney's fees and other expenses of
litigation as they may be recovered as actual or compensatory damages when exemplary damages are
awarded; when the defendant acted in gross and evident bad faith in refusing to satisfy the plaintiff's
valid, just and demandable claim; and in any other case where the court deems it just and equitable that
attorney's fees and expenses of litigation should be recovered. 29
Regarding the imposition of legal interest at the rate of 6% from the time of the filing of the complaint,
we held in Eastern Shipping Lines, Inc. v. Court of Appeals,30 that when an obligation, regardless of its
source, i.e., law, contracts, quasi-contracts, delicts or quasi-delicts is breached, the contravenor can be
held liable for payment of interest in the concept of actual and compensatory damages,31 subject to the
following rules, to wit –
1. When the obligation is breached, and it consists in the payment of a sum of money, i.e., a loan or
forbearance of money, the interest due should be that which may have been stipulated in writing.
Furthermore, the interest due shall itself earn legal interest from the time it is judicially demanded. In the
absence of stipulation, the rate of interest shall be 12% per annum to be computed from default, i.e.,
from judicial or extrajudicial demand under and subject to the provisions of Article 1169 of the Civil
Code.
2. When an obligation, not constituting a loan or forbearance of money, is breached, an interest on the
amount of damages awarded may be imposed at the discretion of the court at the rate of 6% per
annum. No interest, however, shall be adjudged on unliquidated claims or damages except when or
until the demand can be established with reasonable certainty. Accordingly, where the demand is
established with reasonable certainty, the interest shall begin to run from the time the claim is made
judicially or extrajudicially (Art. 1169, Civil Code) but when such certainty cannot be so reasonably
established at the time the demand is made, the interest shall begin to run only from the date the
judgment of the court is made (at which time the quantification of damages may be deemed to
have been reasonably ascertained). The actual base for the computation of legal interest shall, in any
case, be on the amount finally adjudged.
3. When the judgment of the court awarding a sum of money becomes final and executory, the
rate of legal interest, whether the case falls under paragraph 1 or paragraph 2, above, shall be
12% per annum from such finality until its satisfaction, this interim period being deemed to be
by then an equivalent to a forbearance of credit.32 (Emphasis supplied)
Accordingly, the legal interest of 6% shall begin to run on February 9, 1993 when the trial court
rendered judgment and not on February 4, 1980 when the complaint was filed. This is because at the
time of the filing of the complaint, the amount of the damages to which plaintiffs may be entitled remains
unliquidated and unknown, until it is definitely ascertained, assessed and determined by the court and
only upon presentation of proof thereon.33From the time the judgment becomes final and executory, the
interest rate shall be 12% until its satisfaction.
Anent the last issue of whether petitioner can recover under its insurance policy from Phoenix, we affirm
the findings of both the trial court and the Court of Appeals, thus:
As regards the liability of Phoenix, the court a quo correctly ruled that defendant-appellant CDCP's
claim against Phoenix already prescribed pursuant to Section 384 of P.D. 612, as amended, which
provides:
Any person having any claim upon the policy issued pursuant to this chapter shall, without any
unnecessary delay, present to the insurance company concerned a written notice of claim setting forth
the nature, extent and duration of the injuries sustained as certified by a duly licensed physician. Notice
of claim must be filed within six months from date of the accident, otherwise, the claim shall be deemed
waived. Action or suit for recovery of damage due to loss or injury must be brought in proper cases, with
the Commissioner or Courts within one year from denial of the claim, otherwise, the claimant's right of
action shall prescribe. (As amended by PD 1814, BP 874.)34
The law is clear and leaves no room for interpretation. A written notice of claim must be filed within six
months from the date of the accident. Since petitioner never made any claim within six months from the
date of the accident, its claim has already prescribed.
WHEREFORE, the instant petition is DENIED. The Decision of the Court of Appeals in CA-G.R. CV No.
46896 dated March 29, 2001, which modified the Decision of the Regional Trial Court of Manila, Branch
13, in Civil Case No. R-82-2137, is AFFIRMED with the MODIFICATIONS that petitioner is held jointly
and severally liable to pay (1) actual damages in the amount of P79,354.43; (2) moral damages in the
amount of P50,000.00 each for Rachel Fletcher and Rebecca Estrella; (3) exemplary damages in the
amount of P20,000.00 each for Rebecca Estrella and Rachel Fletcher; and (4) thirty percent (30%) of
the total amount recovered as attorney's fees. The total amount adjudged shall earn interest at the rate
of 6% per annum from the date of judgment of the trial court until finality of this judgment. From the time
this Decision becomes final and executory and the judgment amount remains unsatisfied, the same
shall earn interest at the rate of 12% per annum until its satisfaction.
SO ORDERED.
Panganiban, C.J., Chairperson, Austria-Martinez, Callejo, Sr., Chico-Nazario, J.J., concur.
CONCURRENCE OF CAUSES OF ACTION
1. G.R. No. 179446 January 10, 2011
LOADMASTERS CUSTOMS SERVICES, INC., Petitioner,
vs.
GLODEL BROKERAGE CORPORATION and R&B INSURANCE CORPORATION, Respondents.
DECISION
MENDOZA, J.:
This is a petition for review on certiorari under Rule 45 of the Revised Rules of Court assailing the
August 24, 2007 Decision1 of the Court of Appeals (CA) in CA-G.R. CV No. 82822, entitled "R&B
Insurance Corporation v. Glodel Brokerage Corporation and Loadmasters Customs Services, Inc.,"
which held petitioner Loadmasters Customs Services, Inc. (Loadmasters) liable to respondent Glodel
Brokerage Corporation (Glodel) in the amount of ₱1,896,789.62 representing the insurance indemnity
which R&B Insurance Corporation (R&B Insurance) paid to the insured-consignee, Columbia Wire and
Cable Corporation (Columbia).
THE FACTS:
On August 28, 2001, R&B Insurance issued Marine Policy No. MN-00105/2001 in favor of Columbia to
insure the shipment of 132 bundles of electric copper cathodes against All Risks. On August 28, 2001,
the cargoes were shipped on board the vessel "Richard Rey" from Isabela, Leyte, to Pier 10, North
Harbor, Manila. They arrived on the same date.
Columbia engaged the services of Glodel for the release and withdrawal of the cargoes from the pier
and the subsequent delivery to its warehouses/plants. Glodel, in turn, engaged the services of
Loadmasters for the use of its delivery trucks to transport the cargoes to Columbia’s warehouses/plants
in Bulacan and Valenzuela City.
The goods were loaded on board twelve (12) trucks owned by Loadmasters, driven by its employed
drivers and accompanied by its employed truck helpers. Six (6) truckloads of copper cathodes were to
be delivered to Balagtas, Bulacan, while the other six (6) truckloads were destined for Lawang Bato,
Valenzuela City. The cargoes in six truckloads for Lawang Bato were duly delivered in Columbia’s
warehouses there. Of the six (6) trucks en route to Balagtas, Bulacan, however, only five (5) reached
the destination. One (1) truck, loaded with 11 bundles or 232 pieces of copper cathodes, failed to deliver
its cargo.
Later on, the said truck, an Isuzu with Plate No. NSD-117, was recovered but without the copper
cathodes. Because of this incident, Columbia filed with R&B Insurance a claim for insurance indemnity
in the amount of ₱1,903,335.39. After the requisite investigation and adjustment, R&B Insurance paid
Columbia the amount of ₱1,896,789.62 as insurance indemnity.
R&B Insurance, thereafter, filed a complaint for damages against both Loadmasters and Glodel before
the Regional Trial Court, Branch 14, Manila (RTC), docketed as Civil Case No. 02-103040. It sought
reimbursement of the amount it had paid to Columbia for the loss of the subject cargo. It claimed that it
had been subrogated "to the right of the consignee to recover from the party/parties who may be held
legally liable for the loss."2
On November 19, 2003, the RTC rendered a decision3 holding Glodel liable for damages for the loss of
the subject cargo and dismissing Loadmasters’ counterclaim for damages and attorney’s fees against
R&B Insurance. The dispositive portion of the decision reads:
WHEREFORE, all premises considered, the plaintiff having established by preponderance of evidence
its claims against defendant Glodel Brokerage Corporation, judgment is hereby rendered ordering the
latter:
1. To pay plaintiff R&B Insurance Corporation the sum of ₱1,896,789.62 as actual and compensatory
damages, with interest from the date of complaint until fully paid;
2. To pay plaintiff R&B Insurance Corporation the amount equivalent to 10% of the principal amount
recovered as and for attorney’s fees plus ₱1,500.00 per appearance in Court;
3. To pay plaintiff R&B Insurance Corporation the sum of ₱22,427.18 as litigation expenses.
WHEREAS, the defendant Loadmasters Customs Services, Inc.’s counterclaim for damages and
attorney’s fees against plaintiff are hereby dismissed.
With costs against defendant Glodel Brokerage Corporation.
SO ORDERED.4
Both R&B Insurance and Glodel appealed the RTC decision to the CA.
On August 24, 2007, the CA rendered the assailed decision which reads in part:
Considering that appellee is an agent of appellant Glodel, whatever liability the latter owes to appellant
R&B Insurance Corporation as insurance indemnity must likewise be the amount it shall be paid by
appellee Loadmasters.
WHEREFORE, the foregoing considered, the appeal is PARTLY GRANTED in that the appellee
Loadmasters is likewise held liable to appellant Glodel in the amount of ₱1,896,789.62 representing the
insurance indemnity appellant Glodel has been held liable to appellant R&B Insurance Corporation.
Appellant Glodel’s appeal to absolve it from any liability is herein DISMISSED.
SO ORDERED.5
Hence, Loadmasters filed the present petition for review on certiorari before this Court presenting the
following
ISSUES
1. Can Petitioner Loadmasters be held liable to Respondent Glodel in spite of the fact that the
latter respondent Glodel did not file a cross-claim against it (Loadmasters)?
2. Under the set of facts established and undisputed in the case, can petitioner Loadmasters be
legally considered as an Agent of respondent Glodel?6
To totally exculpate itself from responsibility for the lost goods, Loadmasters argues that it cannot be
considered an agent of Glodel because it never represented the latter in its dealings with the consignee.
At any rate, it further contends that Glodel has no recourse against it for its (Glodel’s) failure to file a
cross-claim pursuant to Section 2, Rule 9 of the 1997 Rules of Civil Procedure.
Glodel, in its Comment,7 counters that Loadmasters is liable to it under its cross-claim because the
latter was grossly negligent in the transportation of the subject cargo. With respect to Loadmasters’
claim that it is already estopped from filing a cross-claim, Glodel insists that it can still do so even for the
first time on appeal because there is no rule that provides otherwise. Finally, Glodel argues that its
relationship with Loadmasters is that of Charter wherein the transporter (Loadmasters) is only hired for
the specific job of delivering the merchandise. Thus, the diligence required in this case is merely
ordinary diligence or that of a good father of the family, not the extraordinary diligence required of
common carriers.
R&B Insurance, for its part, claims that Glodel is deemed to have interposed a cross-claim against
Loadmasters because it was not prevented from presenting evidence to prove its position even without
amending its Answer. As to the relationship between Loadmasters and Glodel, it contends that a
contract of agency existed between the two corporations. 8
Subrogation is the substitution of one person in the place of another with reference to a lawful claim or
right, so that he who is substituted succeeds to the rights of the other in relation to a debt or claim,
including its remedies or securities.9 Doubtless, R&B Insurance is subrogated to the rights of the
insured to the extent of the amount it paid the consignee under the marine insurance, as provided under
Article 2207 of the Civil Code, which reads:
ART. 2207. If the plaintiff’s property has been insured, and he has received indemnity from the
insurance company for the injury or loss arising out of the wrong or breach of contract complained of,
the insurance company shall be subrogated to the rights of the insured against the wrong-doer or the
person who has violated the contract. If the amount paid by the insurance company does not fully cover
the injury or loss, the aggrieved party shall be entitled to recover the deficiency from the person causing
the loss or injury.
As subrogee of the rights and interest of the consignee, R&B Insurance has the right to seek
reimbursement from either Loadmasters or Glodel or both for breach of contract and/or tort.
The issue now is who, between Glodel and Loadmasters, is liable to pay R&B Insurance for the amount
of the indemnity it paid Columbia.
At the outset, it is well to resolve the issue of whether Loadmasters and Glodel are common carriers to
determine their liability for the loss of the subject cargo. Under Article 1732 of the Civil Code, common
carriers are persons, corporations, firms, or associations engaged in the business of carrying or
transporting passenger or goods, or both by land, water or air for compensation, offering their services
to the public.
Based on the aforecited definition, Loadmasters is a common carrier because it is engaged in the
business of transporting goods by land, through its trucking service. It is a common carrier as
distinguished from a private carrier wherein the carriage is generally undertaken by special agreement
and it does not hold itself out to carry goods for the general public. 10 The distinction is significant in the
sense that "the rights and obligations of the parties to a contract of private carriage are governed
principally by their stipulations, not by the law on common carriers." 11
In the present case, there is no indication that the undertaking in the contract between Loadmasters and
Glodel was private in character. There is no showing that Loadmasters solely and exclusively rendered
services to Glodel.
In fact, Loadmasters admitted that it is a common carrier.12
In the same vein, Glodel is also considered a common carrier within the context of Article 1732. In its
Memorandum,13 it states that it "is a corporation duly organized and existing under the laws of the
Republic of the Philippines and is engaged in the business of customs brokering." It cannot be
considered otherwise because as held by this Court in Schmitz Transport & Brokerage Corporation v.
Transport Venture, Inc.,14 a customs broker is also regarded as a common carrier, the transportation of
goods being an integral part of its business.
Loadmasters and Glodel, being both common carriers, are mandated from the nature of their business
and for reasons of public policy, to observe the extraordinary diligence in the vigilance over the goods
transported by them according to all the circumstances of such case, as required by Article 1733 of the
Civil Code. When the Court speaks of extraordinary diligence, it is that extreme measure of care and
caution which persons of unusual prudence and circumspection observe for securing and preserving
their own property or rights.15 This exacting standard imposed on common carriers in a contract of
carriage of goods is intended to tilt the scales in favor of the shipper who is at the mercy of the common
carrier once the goods have been lodged for shipment.16 Thus, in case of loss of the goods, the
common carrier is presumed to have been at fault or to have acted negligently. 17This presumption of
fault or negligence, however, may be rebutted by proof that the common carrier has observed
extraordinary diligence over the goods.
With respect to the time frame of this extraordinary responsibility, the Civil Code provides that the
exercise of extraordinary diligence lasts from the time the goods are unconditionally placed in the
possession of, and received by, the carrier for transportation until the same are delivered, actually or
constructively, by the carrier to the consignee, or to the person who has a right to receive them. 18
Premises considered, the Court is of the view that both Loadmasters and Glodel are jointly and
severally liable to R & B Insurance for the loss of the subject cargo. Under Article 2194 of the New Civil
Code, "the responsibility of two or more persons who are liable for a quasi-delict is solidary."
Loadmasters’ claim that it was never privy to the contract entered into by Glodel with the consignee
Columbia or R&B Insurance as subrogee, is not a valid defense. It may not have a direct contractual
relation with Columbia, but it is liable for tort under the provisions of Article 2176 of the Civil Code on
quasi-delicts which expressly provide:
ART. 2176. Whoever by act or omission causes damage to another, there being fault or negligence, is
obliged to pay for the damage done. Such fault or negligence, if there is no pre-existing contractual
relation between the parties, is called a quasi-delict and is governed by the provisions of this Chapter.
Pertinent is the ruling enunciated in the case of Mindanao Terminal and Brokerage Service, Inc. v.
Phoenix Assurance Company of New York,/McGee & Co., Inc.19 where this Court held that a tort may
arise despite the absence of a contractual relationship, to wit:
We agree with the Court of Appeals that the complaint filed by Phoenix and McGee against Mindanao
Terminal, from which the present case has arisen, states a cause of action. The present action is based
on quasi-delict, arising from the negligent and careless loading and stowing of the cargoes belonging
to Del Monte Produce. Even assuming that both Phoenix and McGee have only been subrogated in the
rights of Del Monte Produce, who is not a party to the contract of service between Mindanao Terminal
and Del Monte, still the insurance carriers may have a cause of action in light of the Court’s consistent
ruling that the act that breaks the contract may be also a tort.In fine, a liability for tort may arise even
under a contract, where tort is that which breaches the contract. In the present case, Phoenix and
McGee are not suing for damages for injuries arising from the breach of the contract of service
but from the alleged negligent manner by which Mindanao Terminal handled the cargoes belonging
to Del Monte Produce. Despite the absence of contractual relationship between Del Monte Produce and
Mindanao Terminal, the allegation of negligence on the part of the defendant should be sufficient to
establish a cause of action arising from quasi-delict. [Emphases supplied]
In connection therewith, Article 2180 provides:
ART. 2180. The obligation imposed by Article 2176 is demandable not only for one’s own acts or
omissions, but also for those of persons for whom one is responsible.
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.
It is not disputed that the subject cargo was lost while in the custody of Loadmasters whose employees
(truck driver and helper) were instrumental in the hijacking or robbery of the shipment. As employer,
Loadmasters should be made answerable for the damages caused by its employees who acted within
the scope of their assigned task of delivering the goods safely to the warehouse.
Whenever an employee’s negligence causes damage or injury to another, there instantly arises a
presumption juris tantum that the employer failed to exercise diligentissimi patris families in the selection
(culpa in eligiendo) or supervision (culpa in vigilando) of its employees. 20 To avoid liability for a quasi-
delict committed by its employee, an employer must overcome the presumption by presenting
convincing proof that he exercised the care and diligence of a good father of a family in the selection
and supervision of his employee.21 In this regard, Loadmasters failed.
Glodel is also liable because of its failure to exercise extraordinary diligence. It failed to ensure that
Loadmasters would fully comply with the undertaking to safely transport the subject cargo to the
designated destination. It should have been more prudent in entrusting the goods to Loadmasters by
taking precautionary measures, such as providing escorts to accompany the trucks in delivering the
cargoes. Glodel should, therefore, be held liable with Loadmasters. Its defense of force majeure is
unavailing.
At this juncture, the Court clarifies that there exists no principal-agent relationship between Glodel and
Loadmasters, as erroneously found by the CA. Article 1868 of the Civil Code provides: "By the contract
of agency a person binds himself to render some service or to do something in representation or on
behalf of another, with the consent or authority of the latter." The elements of a contract of agency are:
(1) consent, express or implied, of the parties to establish the relationship; (2) the object is the execution
of a juridical act in relation to a third person; (3) the agent acts as a representative and not for himself;
(4) the agent acts within the scope of his authority.22
Accordingly, there can be no contract of agency between the parties. Loadmasters never represented
Glodel. Neither was it ever authorized to make such representation. It is a settled rule that the basis for
agency is representation, that is, the agent acts for and on behalf of the principal on matters within the
scope of his authority and said acts have the same legal effect as if they were personally executed by
the principal. On the part of the principal, there must be an actual intention to appoint or an intention
naturally inferable from his words or actions, while on the part of the agent, there must be an intention to
accept the appointment and act on it.23 Such mutual intent is not obtaining in this case.
What then is the extent of the respective liabilities of Loadmasters and Glodel? Each wrongdoer is liable
for the total damage suffered by R&B Insurance. Where there are several causes for the resulting
damages, a party is not relieved from liability, even partially. It is sufficient that the negligence of a party
is an efficient cause without which the damage would not have resulted. It is no defense to one of the
concurrent tortfeasors that the damage would not have resulted from his negligence alone, without the
negligence or wrongful acts of the other concurrent tortfeasor. As stated in the case of Far Eastern
Shipping v. Court of Appeals,24
X x x. 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 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. [Emphasis supplied]
The Court now resolves the issue of whether Glodel can collect from Loadmasters, it having failed to file
a cross-claim against the latter.1avvphi1
Undoubtedly, Glodel has a definite cause of action against Loadmasters for breach of contract of
service as the latter is primarily liable for the loss of the subject cargo. In this case, however, it cannot
succeed in seeking judicial sanction against Loadmasters because the records disclose that it did not
properly interpose a cross-claim against the latter. Glodel did not even pray that Loadmasters be liable
for any and all claims that it may be adjudged liable in favor of R&B Insurance. Under the Rules, a
compulsory counterclaim, or a cross-claim, not set up shall be barred.25 Thus, a cross-claim cannot be
set up for the first time on appeal.
For the consequence, Glodel has no one to blame but itself. The Court cannot come to its aid on
equitable grounds. "Equity, which has been aptly described as ‘a justice outside legality,’ is applied only
in the absence of, and never against, statutory law or judicial rules of procedure." 26 The Court cannot be
a lawyer and take the cudgels for a party who has been at fault or negligent.
WHEREFORE, the petition is PARTIALLY GRANTED. The August 24, 2007 Decision of the Court of
Appeals is MODIFIED to read as follows:
WHEREFORE, judgment is rendered declaring petitioner Loadmasters Customs Services, Inc. and
respondent Glodel Brokerage Corporation jointly and severally liable to respondent R&B Insurance
Corporation for the insurance indemnity it paid to consignee Columbia Wire & Cable Corporation and
ordering both parties to pay, jointly and severally, R&B Insurance Corporation a] the amount of
₱1,896,789.62 representing the insurance indemnity; b] the amount equivalent to ten (10%) percent
thereof for attorney’s fees; and c] the amount of ₱22,427.18 for litigation expenses.
The cross-claim belatedly prayed for by respondent Glodel Brokerage Corporation against petitioner
Loadmasters Customs Services, Inc. is DENIED.
SO ORDERED.
 2. G.R. No. 145804 February 6, 2003
LIGHT RAIL TRANSIT AUTHORITY & RODOLFO ROMAN, petitioners,
vs.
MARJORIE NAVIDAD, Heirs of the Late NICANOR NAVIDAD & PRUDENT SECURITY
AGENCY, respondents.
DECISION
VITUG, J.:
The case before the Court is an appeal from the decision and resolution of the Court of Appeals,
promulgated on 27 April 2000 and 10 October 2000, respectively, in CA-G.R. CV No. 60720, entitled
"Marjorie Navidad and Heirs of the Late Nicanor Navidad vs. Rodolfo Roman, et. al.," which has
modified the decision of 11 August 1998 of the Regional Trial Court, Branch 266, Pasig City,
exonerating Prudent Security Agency (Prudent) from liability and finding Light Rail Transit Authority
(LRTA) and Rodolfo Roman liable for damages on account of the death of Nicanor Navidad.
On 14 October 1993, about half an hour past seven o’clock in the evening, Nicanor Navidad, then
drunk, entered the EDSA LRT station after purchasing a "token" (representing payment of the fare).
While Navidad was standing on the platform near the LRT tracks, Junelito Escartin, the security guard
assigned to the area approached Navidad. A misunderstanding or an altercation between the two
apparently ensued that led to a fist fight. No evidence, however, was adduced to indicate how the fight
started or who, between the two, delivered the first blow or how Navidad later fell on the LRT tracks. At
the exact moment that Navidad fell, an LRT train, operated by petitioner Rodolfo Roman, was coming
in. Navidad was struck by the moving train, and he was killed instantaneously.
On 08 December 1994, the widow of Nicanor, herein respondent Marjorie Navidad, along with her
children, filed a complaint for damages against Junelito Escartin, Rodolfo Roman, the LRTA, the Metro
Transit Organization, Inc. (Metro Transit), and Prudent for the death of her husband. LRTA and Roman
filed a counterclaim against Navidad and a cross-claim against Escartin and Prudent. Prudent, in its
answer, denied liability and averred that it had exercised due diligence in the selection and supervision
of its security guards.
The LRTA and Roman presented their evidence while Prudent and Escartin, instead of presenting
evidence, filed a demurrer contending that Navidad had failed to prove that Escartin was negligent in his
assigned task. On 11 August 1998, the trial court rendered its decision; it adjudged:
"WHEREFORE, judgment is hereby rendered in favor of the plaintiffs and against the defendants
Prudent Security and Junelito Escartin ordering the latter to pay jointly and severally the plaintiffs the
following:
"a) 1) Actual damages of P44,830.00;
2) Compensatory damages of P443,520.00;
3) Indemnity for the death of Nicanor Navidad in the sum of P50,000.00;
"b) Moral damages of P50,000.00;
"c) Attorney’s fees of P20,000;
"d) Costs of suit.
"The complaint against defendants LRTA and Rodolfo Roman are dismissed for lack of merit.
"The compulsory counterclaim of LRTA and Roman are likewise dismissed."1
Prudent appealed to the Court of Appeals. On 27 August 2000, the appellate court promulgated its now
assailed decision exonerating Prudent from any liability for the death of Nicanor Navidad and, instead,
holding the LRTA and Roman jointly and severally liable thusly:
"WHEREFORE, the assailed judgment is hereby MODIFIED, by exonerating the appellants from any
liability for the death of Nicanor Navidad, Jr. Instead, appellees Rodolfo Roman and the Light Rail
Transit Authority (LRTA) are held liable for his death and are hereby directed to pay jointly and severally
to the plaintiffs-appellees, the following amounts:
a) P44,830.00 as actual damages;
b) P50,000.00 as nominal damages;
c) P50,000.00 as moral damages;
d) P50,000.00 as indemnity for the death of the deceased; and
e) P20,000.00 as and for attorney’s fees."2
The appellate court ratiocinated that while the deceased might not have then as yet boarded the train, a
contract of carriage theretofore had already existed when the victim entered the place where
passengers were supposed to be after paying the fare and getting the corresponding token therefor. In
exempting Prudent from liability, the court stressed that there was nothing to link the security agency to
the death of Navidad. It said that Navidad failed to show that Escartin inflicted fist blows upon the victim
and the evidence merely established the fact of death of Navidad by reason of his having been hit by
the train owned and managed by the LRTA and operated at the time by Roman. The appellate court
faulted petitioners for their failure to present expert evidence to establish the fact that the application of
emergency brakes could not have stopped the train.
The appellate court denied petitioners’ motion for reconsideration in its resolution of 10 October 2000.
In their present recourse, petitioners recite alleged errors on the part of the appellate court; viz:
"I.
THE HONORABLE COURT OF APPEALS GRAVELY ERRED BY DISREGARDING THE FINDINGS
OF FACTS BY THE TRIAL COURT

"II.
THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN FINDING THAT PETITIONERS ARE
LIABLE FOR THE DEATH OF NICANOR NAVIDAD, JR.
"III.
THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN FINDING THAT RODOLFO ROMAN
IS AN EMPLOYEE OF LRTA."3
Petitioners would contend that the appellate court ignored the evidence and the factual findings of the
trial court by holding them liable on the basis of a sweeping conclusion that the presumption of
negligence on the part of a common carrier was not overcome. Petitioners would insist that Escartin’s
assault upon Navidad, which caused the latter to fall on the tracks, was an act of a stranger that could
not have been foreseen or prevented. The LRTA would add that the appellate court’s conclusion on the
existence of an employer-employee relationship between Roman and LRTA lacked basis because
Roman himself had testified being an employee of Metro Transit and not of the LRTA.
Respondents, supporting the decision of the appellate court, contended that a contract of carriage was
deemed created from the moment Navidad paid the fare at the LRT station and entered the premises of
the latter, entitling Navidad to all the rights and protection under a contractual relation, and that the
appellate court had correctly held LRTA and Roman liable for the death of Navidad in failing to exercise
extraordinary diligence imposed upon a common carrier.
Law and jurisprudence dictate that a common carrier, both from the nature of its business and for
reasons of public policy, is burdened with the duty of exercising utmost diligence in ensuring the safety
of passengers.4 The Civil Code, governing the liability of a common carrier for death of or injury to its
passengers, provides:
"Article 1755. A common carrier is bound to carry the passengers safely as far as human care and
foresight can provide, using the utmost diligence of very cautious persons, with a due regard for all the
circumstances.
"Article 1756. In case of death of or injuries to passengers, common carriers are presumed to have
been at fault or to have acted negligently, unless they prove that they observed extraordinary diligence
as prescribed in articles 1733 and 1755."
"Article 1759. Common carriers are liable for the death of or injuries to passengers through the
negligence or willful acts of the former’s employees, although such employees may have acted beyond
the scope of their authority or in violation of the orders of the common carriers.
"This liability of the common carriers does not cease upon proof that they exercised all the diligence of a
good father of a family in the selection and supervision of their employees."
"Article 1763. A common carrier is responsible for injuries suffered by a passenger on account of the
willful acts or negligence of other passengers or of strangers, if the common carrier’s employees
through the exercise of the diligence of a good father of a family could have prevented or stopped the
act or omission."
The law requires common carriers to carry passengers safely using the utmost diligence of very
cautious persons with due regard for all circumstances.5 Such duty of a common carrier to provide
safety to its passengers so obligates it not only during the course of the trip but for so long as the
passengers are within its premises and where they ought to be in pursuance to the contract of
carriage.6 The statutory provisions render a common carrier liable for death of or injury to passengers
(a) through the negligence or wilful acts of its employees or b) on account of wilful acts or negligence of
other passengers or of strangers if the common carrier’s employees through the exercise of due
diligence could have prevented or stopped the act or omission. 7 In case of such death or injury, a carrier
is presumed to have been at fault or been negligent, and 8 by simple proof of injury, the passenger is
relieved of the duty to still establish the fault or negligence of the carrier or of its employees and the
burden shifts upon the carrier to prove that the injury is due to an unforeseen event or to force
majeure.9 In the absence of satisfactory explanation by the carrier on how the accident occurred, which
petitioners, according to the appellate court, have failed to show, the presumption would be that it has
been at fault,10 an exception from the general rule that negligence must be proved. 11
The foundation of LRTA’s liability is the contract of carriage and its obligation to indemnify the victim
arises from the breach of that contract by reason of its failure to exercise the high diligence required of
the common carrier. In the discharge of its commitment to ensure the safety of passengers, a carrier
may choose to hire its own employees or avail itself of the services of an outsider or an independent
firm to undertake the task. In either case, the common carrier is not relieved of its responsibilities under
the contract of carriage.
Should Prudent be made likewise liable? If at all, that liability could only be for tort under the provisions
of Article 217612 and related provisions, in conjunction with Article 2180,13 of the Civil Code. The
premise, however, for the employer’s liability is negligence or fault on the part of the employee. Once
such fault is established, the employer can then be made liable on the basis of the presumption juris
tantum that the employer failed to exercise diligentissimi patris families in the selection and supervision
of its employees. The liability is primary and can only be negated by showing due diligence in the
selection and supervision of the employee, a factual matter that has not been shown. Absent such a
showing, one might ask further, how then must the liability of the common carrier, on the one hand, and
an independent contractor, on the other hand, be described? It would be solidary. A contractual
obligation can be breached by tort and when the same act or omission causes the injury, one resulting
in culpa contractual and the other in culpa aquiliana, Article 219414 of the Civil Code can well apply.15 In
fine, a liability for tort may arise even under a contract, where tort is that which breaches the
contract.16 Stated differently, when an act which constitutes a breach of contract would have itself
constituted the source of a quasi-delictual liability had no contract existed between the parties, the
contract can be said to have been breached by tort, thereby allowing the rules on tort to apply. 17
Regrettably for LRT, as well as perhaps the surviving spouse and heirs of the late Nicanor Navidad, this
Court is concluded by the factual finding of the Court of Appeals that "there is nothing to link (Prudent)
to the death of Nicanor (Navidad), for the reason that the negligence of its employee, Escartin, has not
been duly proven x x x." This finding of the appellate court is not without substantial justification in our
own review of the records of the case.
There being, similarly, no showing that petitioner Rodolfo Roman himself is guilty of any culpable act or
omission, he must also be absolved from liability. Needless to say, the contractual tie between the LRT
and Navidad is not itself a juridical relation between the latter and Roman; thus, Roman can be made
liable only for his own fault or negligence.
The award of nominal damages in addition to actual damages is untenable. Nominal damages are
adjudicated in order that a right of the plaintiff, which has been violated or invaded by the defendant,
may be vindicated or recognized, and not for the purpose of indemnifying the plaintiff for any loss
suffered by him.18 It is an established rule that nominal damages cannot co-exist with compensatory
damages.19
WHEREFORE, the assailed decision of the appellate court is AFFIRMED with MODIFICATION but only
in that (a) the award of nominal damages is DELETED and (b) petitioner Rodolfo Roman is absolved
from liability. No costs.
SO ORDERED.
G.R. No. 150157 January 25, 2007
MAURICIO MANLICLIC and PHILIPPINE RABBIT BUS LINES, INC., Petitioners,
vs.
MODESTO CALAUNAN, Respondent.
DECISION
CHICO-NAZARIO, J.:
Assailed before Us is the decision1 of the Court of Appeals in CA-G.R. CV No. 55909 which affirmed in
toto the decision2 of the Regional Trial Court (RTC) of Dagupan City, Branch 42, in Civil Case No. D-
10086, finding petitioners Mauricio Manliclic and Philippine Rabbit Bus Lines, Inc. (PRBLI) solidarily
liable to pay damages and attorney’s fees to respondent Modesto Calaunan.
The factual antecedents are as follows:
The vehicles involved in this case are: (1) Philippine Rabbit Bus No. 353 with plate number CVD-478,
owned by petitioner PRBLI and driven by petitioner Mauricio Manliclic; and (2) owner-type jeep with
plate number PER-290, owned by respondent Modesto Calaunan and driven by Marcelo Mendoza.
At around 6:00 to 7:00 o’clock in the morning of 12 July 1988, respondent Calaunan, together with
Marcelo Mendoza, was on his way to Manila from Pangasinan on board his owner-type jeep. The
Philippine Rabbit Bus was likewise bound for Manila from Concepcion, Tarlac. At approximately
Kilometer 40 of the North Luzon Expressway in Barangay Lalangan, Plaridel, Bulacan, the two vehicles
collided. The front right side of the Philippine Rabbit Bus hit the rear left side of the jeep causing the
latter to move to the shoulder on the right and then fall on a ditch with water resulting to further
extensive damage. The bus veered to the left and stopped 7 to 8 meters from point of collision.
Respondent suffered minor injuries while his driver was unhurt. He was first brought for treatment to the
Manila Central University Hospital in Kalookan City by Oscar Buan, the conductor of the Philippine
Rabbit Bus, and was later transferred to the Veterans Memorial Medical Center.
By reason of such collision, a criminal case was filed before the RTC of Malolos, Bulacan, charging
petitioner Manliclic with Reckless Imprudence Resulting in Damage to Property with Physical Injuries,
docketed as Crim. Case No. 684-M-89. Subsequently on 2 December 1991, respondent filed a
complaint for damages against petitioners Manliclic and PRBLI before the RTC of Dagupan City,
docketed as Civil Case No. D-10086. The criminal case was tried ahead of the civil case. Among those
who testified in the criminal case were respondent Calaunan, Marcelo Mendoza and Fernando Ramos.
In the civil case (now before this Court), the parties admitted the following:
1. The parties agreed on the capacity of the parties to sue and be sued as well as the venue and the
identities of the vehicles involved;
2. The identity of the drivers and the fact that they are duly licensed;
3. The date and place of the vehicular collision;
4. The extent of the injuries suffered by plaintiff Modesto Calaunan and the existence of the medical
certificate;
5. That both vehicles were going towards the south; the private jeep being ahead of the bus;
6. That the weather was fair and the road was well paved and straight, although there was a ditch on
the right side where the jeep fell into.3
When the civil case was heard, counsel for respondent prayed that the transcripts of stenographic notes
(TSNs)4of the testimonies of respondent Calaunan, Marcelo Mendoza and Fernando Ramos in the
criminal case be received in evidence in the civil case in as much as these witnesses are not available
to testify in the civil case.
Francisco Tuliao testified that his brother-in-law, respondent Calaunan, left for abroad sometime in
November, 1989 and has not returned since then. Rogelio Ramos took the stand and said that his
brother, Fernando Ramos, left for Amman, Jordan, to work. Rosalia Mendoza testified that her husband,
Marcelo Mendoza, left their residence to look for a job. She narrated that she thought her husband went
to his hometown in Panique, Tarlac, when he did not return after one month. She went to her husband’s
hometown to look for him but she was informed that he did not go there.1awphil.net
The trial court subpoenaed the Clerk of Court of Branch 8, RTC, Malolos, Bulacan, the court where
Criminal Case No. 684-M-89 was tried, to bring the TSNs of the testimonies of respondent
Calaunan,5 Marcelo Mendoza6 and Fernando Ramos7 in said case, together with other documentary
evidence marked therein. Instead of the Branch Clerk of Court, it was Enrique Santos Guevara, Court
Interpreter, who appeared before the court and identified the TSNs of the three afore-named witnesses
and other pertinent documents he had brought.8 Counsel for respondent wanted to mark other TSNs
and documents from the said criminal case to be adopted in the instant case, but since the same were
not brought to the trial court, counsel for petitioners compromised that said TSNs and documents could
be offered by counsel for respondent as rebuttal evidence.
For the defendants, petitioner Manliclic and bus conductor Oscar Buan testified. The TSN 9 of the
testimony of Donato Ganiban, investigator of the PRBLI, in Criminal Case No. 684-M-89 was marked
and allowed to be adopted in the civil case on the ground that he was already dead.
Respondent further marked, among other documents, as rebuttal evidence, the TSNs 10 of the
testimonies of Donato Ganiban, Oscar Buan and petitioner Manliclic in Criminal Case No. 684-M-89.
The disagreement arises from the question: Who is to be held liable for the collision?
Respondent insists it was petitioner Manliclic who should be liable while the latter is resolute in saying it
was the former who caused the smash up.
The versions of the parties are summarized by the trial court as follows:
The parties differed only on the manner the collision between the two (2) vehicles took place. According
to the plaintiff and his driver, the jeep was cruising at the speed of 60 to 70 kilometers per hour on the
slow lane of the expressway when the Philippine Rabbit Bus overtook the jeep and in the process of
overtaking the jeep, the Philippine Rabbit Bus hit the rear of the jeep on the left side. At the time the
Philippine Rabbit Bus hit the jeep, it was about to overtake the jeep. In other words, the Philippine
Rabbit Bus was still at the back of the jeep when the jeep was hit. Fernando Ramos corroborated the
testimony of the plaintiff and Marcelo Mendoza. He said that he was on another jeep following the
Philippine Rabbit Bus and the jeep of plaintiff when the incident took place. He said, the jeep of the
plaintiff overtook them and the said jeep of the plaintiff was followed by the Philippine Rabbit Bus which
was running very fast. The bus also overtook the jeep in which he was riding. After that, he heard a loud
sound. He saw the jeep of the plaintiff swerved to the right on a grassy portion of the road. The
Philippine Rabbit Bus stopped and they overtook the Philippine Rabbit Bus so that it could not moved
(sic), meaning they stopped in front of the Philippine Rabbit Bus. He testified that the jeep of plaintiff
swerved to the right because it was bumped by the Philippine Rabbit bus from behind.
Both Mauricio Manliclic and his driver, Oscar Buan admitted that the Philippine Rabbit Bus bumped the
jeep in question. However, they explained that when the Philippine Rabbit bus was about to go to the
left lane to overtake the jeep, the latter jeep swerved to the left because it was to overtake another jeep
in front of it. Such was their testimony before the RTC in Malolos in the criminal case and before this
Court in the instant case. [Thus, which of the two versions of the manner how the collision took place
was correct, would be determinative of who between the two drivers was negligent in the operation of
their respective vehicles.]11
Petitioner PRBLI maintained that it observed and exercised the diligence of a good father of a family in
the selection and supervision of its employee, specifically petitioner Manliclic.
On 22 July 1996, the trial court rendered its decision in favor of respondent Calaunan and against
petitioners Manliclic and PRBLI. The dispositive portion of its decision reads:
WHEREFORE, judgment is rendered in favor of the plaintiff and against the defendants ordering the
said defendants to pay plaintiff jointly and solidarily the amount of P40,838.00 as actual damages for the
towing as well as the repair and the materials used for the repair of the jeep in question; P100,000.00 as
moral damages and another P100,000.00 as exemplary damages and P15,000.00 as attorney’s fees,
including appearance fees of the lawyer. In addition, the defendants are also to pay costs. 12
Petitioners appealed the decision via Notice of Appeal to the Court of Appeals. 13
In a decision dated 28 September 2001, the Court of Appeals, finding no reversible error in the decision
of the trial court, affirmed it in all respects.14
Petitioners are now before us by way of petition for review assailing the decision of the Court of
Appeals. They assign as errors the following:
I
THE COURT OF APPEALS ERRED ON A QUESTION OF LAW IN AFFIRMING THE TRIAL COURT’S
QUESTIONABLE ADMISSION IN EVIDENCE OF THE TSN’s AND OTHER DOCUMENTS
PRESENTED IN THE CRIMINAL CASE.
II
THE COURT OF APPEALS ERRED ON A QUESTION OF LAW IN AFFIRMING THE TRIAL COURT’S
RELIANCE ON THE VERSION OF THE RESPONDENT ON HOW THE ACCIDENT SUPPOSEDLY
OCCURRED.
III
THE COURT OF APPEALS ERRED ON A QUESTION OF LAW IN AFFIRMING THE TRIAL COURT’S
UNFAIR DISREGARD OF HEREIN PETITIONER PRBL’s DEFENSE OF EXERCISE OF DUE
DILIGENCE IN THE SELECTION AND SUPERVISION OF ITS EMPLOYEES.
IV
THE COURT OF APPEALS ERRED ON A QUESTION OF LAW IN AFFIRMING THE TRIAL COURT’S
QUESTIONABLE AWARD OF DAMAGES AND ATTORNEY’S FEE.
With the passing away of respondent Calaunan during the pendency of this appeal with this Court, we
granted the Motion for the Substitution of Respondent filed by his wife, Mrs. Precila Zarate Vda. De
Calaunan, and children, Virgilio Calaunan, Carmelita Honeycomb, Evelyn Calaunan, Marko Calaunan
and Liwayway Calaunan.15
In their Reply to respondent’s Comment, petitioners informed this Court of a Decision 16 of the Court of
Appeals acquitting petitioner Manliclic of the charge 17 of Reckless Imprudence Resulting in Damage to
Property with Physical Injuries attaching thereto a photocopy thereof.
On the first assigned error, petitioners argue that the TSNs containing the testimonies of respondent
Calaunan,18Marcelo Mendoza19 and Fernando Ramos20 should not be admitted in evidence for failure of
respondent to comply with the requisites of Section 47, Rule 130 of the Rules of Court.
For Section 47, Rule 13021 to apply, the following requisites must be satisfied: (a) the witness is dead or
unable to testify; (b) his testimony or deposition was given in a former case or proceeding, judicial or
administrative, between the same parties or those representing the same interests; (c) the former case
involved the same subject as that in the present case, although on different causes of action; (d) the
issue testified to by the witness in the former trial is the same issue involved in the present case; and (e)
the adverse party had an opportunity to cross-examine the witness in the former case.22
Admittedly, respondent failed to show the concurrence of all the requisites set forth by the Rules for a
testimony given in a former case or proceeding to be admissible as an exception to the hearsay rule.
Petitioner PRBLI, not being a party in Criminal Case No. 684-M-89, had no opportunity to cross-
examine the three witnesses in said case. The criminal case was filed exclusively against petitioner
Manliclic, petitioner PRBLI’s employee. The cases dealing with the subsidiary liability of employers
uniformly declare that, strictly speaking, they are not parties to the criminal cases instituted against their
employees.23
Notwithstanding the fact that petitioner PRBLI was not a party in said criminal case, the testimonies of
the three witnesses are still admissible on the ground that petitioner PRBLI failed to object on their
admissibility.
It is elementary that an objection shall be made at the time when an alleged inadmissible document is
offered in evidence; otherwise, the objection shall be treated as waived, since the right to object is
merely a privilege which the party may waive. Thus, a failure to except to the evidence because it does
not conform to the statute is a waiver of the provisions of the law. Even assuming ex gratia argumenti
that these documents are inadmissible for being hearsay, but on account of failure to object thereto, the
same may be admitted and considered as sufficient to prove the facts therein asserted. 24 Hearsay
evidence alone may be insufficient to establish a fact in a suit but, when no objection is made thereto, it
is, like any other evidence, to be considered and given the importance it deserves. 25
In the case at bar, petitioner PRBLI did not object to the TSNs containing the testimonies of respondent
Calaunan, Marcelo Mendoza and Fernando Ramos in the criminal case when the same were offered in
evidence in the trial court. In fact, the TSNs of the testimonies of Calaunan and Mendoza were admitted
by both petitioners.26Moreover, petitioner PRBLI even offered in evidence the TSN containing the
testimony of Donato Ganiban in the criminal case. If petitioner PRBLI argues that the TSNs of the
testimonies of plaintiff’s witnesses in the criminal case should not be admitted in the instant case, why
then did it offer the TSN of the testimony of Ganiban which was given in the criminal case? It appears
that petitioner PRBLI wants to have its cake and eat it too. It cannot argue that the TSNs of the
testimonies of the witnesses of the adverse party in the criminal case should not be admitted and at the
same time insist that the TSN of the testimony of the witness for the accused be admitted in its favor. To
disallow admission in evidence of the TSNs of the testimonies of Calaunan, Marcelo Mendoza and
Fernando Ramos in the criminal case and to admit the TSN of the testimony of Ganiban would be
unfair.
We do not subscribe to petitioner PRBLI’s argument that it will be denied due process when the TSNs of
the testimonies of Calaunan, Marcelo Mendoza and Fernando Ramos in the criminal case are to be
admitted in the civil case. It is too late for petitioner PRBLI to raise denial of due process in relation to
Section 47, Rule 130 of the Rules of Court, as a ground for objecting to the admissibility of the TSNs.
For failure to object at the proper time, it waived its right to object that the TSNs did not comply with
Section 47.
In Mangio v. Court of Appeals,27 this Court, through Associate Justice Reynato S. Puno,28 admitted in
evidence a TSN of the testimony of a witness in another case despite therein petitioner’s assertion that
he would be denied due process. In admitting the TSN, the Court ruled that the raising of denial of due
process in relation to Section 47, Rule 130 of the Rules of Court, as a ground for objecting to the
admissibility of the TSN was belatedly done. In so doing, therein petitioner waived his right to object
based on said ground.
Petitioners contend that the documents in the criminal case should not have been admitted in the
instant civil case because Section 47 of Rule 130 refers only to "testimony or deposition." We find such
contention to be untenable. Though said section speaks only of testimony and deposition, it does not
mean that documents from a former case or proceeding cannot be admitted. Said documents can be
admitted they being part of the testimonies of witnesses that have been admitted. Accordingly, they
shall be given the same weight as that to which the testimony may be entitled.29
On the second assigned error, petitioners contend that the version of petitioner Manliclic as to how the
accident occurred is more credible than respondent’s version. They anchor their contention on the fact
that petitioner Manliclic was acquitted by the Court of Appeals of the charge of Reckless Imprudence
Resulting in Damage to Property with Physical Injuries.
To be resolved by the Court is the effect of petitioner Manliclic’s acquittal in the civil case.
From the complaint, it can be gathered that the civil case for damages was one arising from, or based
on, quasi-delict.30 Petitioner Manliclic was sued for his negligence or reckless imprudence in causing
the collision, while petitioner PRBLI was sued for its failure to exercise the diligence of a good father in
the selection and supervision of its employees, particularly petitioner Manliclic. The allegations read:
"4. That sometime on July 12, 1988 at around 6:20 A.M. plaintiff was on board the above-described
motor vehicle travelling at a moderate speed along the North Luzon Expressway heading South towards
Manila together with MARCELO MENDOZA, who was then driving the same;
"5. That approximately at kilometer 40 of the North Luzon Express Way, the above-described motor
vehicle was suddenly bumped from behind by a Philippine Rabbit Bus with Body No. 353 and with plate
No. CVD 478 then being driven by one Mauricio Manliclic of San Jose, Concepcion, Tarlac, who was
then travelling recklessly at a very fast speed and had apparently lost control of his vehicle;
"6. That as a result of the impact of the collision the above-described motor vehicle was forced off the
North Luzon Express Way towards the rightside where it fell on its driver’s side on a ditch, and that as a
consequence, the above-described motor vehicle which maybe valued at EIGHTY THOUSAND PESOS
(P80,000) was rendered a total wreck as shown by pictures to be presented during the pre-trial and trial
of this case;
"7. That also as a result of said incident, plaintiff sustained bodily injuries which compounded plaintiff’s
frail physical condition and required his hospitalization from July 12, 1988 up to and until July 22, 1988,
copy of the medical certificate is hereto attached as Annex "A" and made an integral part hereof;
"8. That the vehicular collision resulting in the total wreckage of the above-described motor vehicle as
well as bodily (sic) sustained by plaintiff, was solely due to the reckless imprudence of the defendant
driver Mauricio Manliclic who drove his Philippine Rabbit Bus No. 353 at a fast speed without due
regard or observance of existing traffic rules and regulations;
"9. That defendant Philippine Rabbit Bus Line Corporation failed to exercise the diligence of a good
father of (sic) family in the selection and supervision of its drivers; x x x"31
Can Manliclic still be held liable for the collision and be found negligent notwithstanding the declaration
of the Court of Appeals that there was an absence of negligence on his part?
In exonerating petitioner Manliclic in the criminal case, the Court of Appeals said:
To the following findings of the court a quo, to wit: that accused-appellant was negligent "when the bus
he was driving bumped the jeep from behind"; that "the proximate cause of the accident was his having
driven the bus at a great speed while closely following the jeep"; x x x
We do not agree.
The swerving of Calaunan’s jeep when it tried to overtake the vehicle in front of it was beyond the
control of accused-appellant.
xxxx
Absent evidence of negligence, therefore, accused-appellant cannot be held liable for Reckless
Imprudence Resulting in Damage to Property with Physical Injuries as defined in Article 365 of the
Revised Penal Code.32
From the foregoing declaration of the Court of Appeals, it appears that petitioner Manliclic was acquitted
not on reasonable doubt, but on the ground that he is not the author of the act complained of which is
based on Section 2(b) of Rule 111 of the Rules of Criminal Procedure which reads:
(b) Extinction of the penal action does not carry with it extinction of the civil, unless the extinction
proceeds from a declaration in a final judgment that the fact from which the civil might arise did not
exist.
In spite of said ruling, petitioner Manliclic can still be held liable for the mishap. The afore-quoted section
applies only to a civil action arising from crime or ex delicto and not to a civil action arising from quasi-
delict or culpa aquiliana. The extinction of civil liability referred to in Par. (e) of Section 3, Rule 111 [now
Section 2 (b) of Rule 111], refers exclusively to civil liability founded on Article 100 of the Revised Penal
Code, whereas the civil liability for the same act considered as a quasi-delict only and not as a crime is
not extinguished even by a declaration in the criminal case that the criminal act charged has not
happened or has not been committed by the accused.33
A quasi-delict or culpa aquiliana is a separate legal institution under the Civil Code with a substantivity
all its own, and individuality that is entirely apart and independent from a delict or crime – a distinction
exists between the civil liability arising from a crime and the responsibility for quasi-delicts or culpa
extra-contractual. The same negligence causing damages may produce civil liability arising from a crime
under the Penal Code, or create an action for quasi-delicts or culpa extra-contractual under the Civil
Code.34 It is now settled that acquittal of the accused, even if based on a finding that he is not guilty,
does not carry with it the extinction of the civil liability based on quasi delict. 35
In other words, if an accused is acquitted based on reasonable doubt on his guilt, his civil liability arising
from the crime may be proved by preponderance of evidence only. However, if an accused is acquitted
on the basis that he was not the author of the act or omission complained of (or that there is declaration
in a final judgment that the fact from which the civil might arise did not exist), said acquittal closes the
door to civil liability based on the crime or ex delicto. In this second instance, there being no crime or
delict to speak of, civil liability based thereon or ex delicto is not possible. In this case, a civil action, if
any, may be instituted on grounds other than the delict complained of.
As regards civil liability arising from quasi-delict or culpa aquiliana, same will not be extinguished by an
acquittal, whether it be on ground of reasonable doubt or that accused was not the author of the act or
omission complained of (or that there is declaration in a final judgment that the fact from which the civil
liability might arise did not exist). The responsibility arising from fault or negligence in a quasi-delict is
entirely separate and distinct from the civil liability arising from negligence under the Penal Code. 36 An
acquittal or conviction in the criminal case is entirely irrelevant in the civil case 37 based on quasi-delict
or culpa aquiliana.
Petitioners ask us to give credence to their version of how the collision occurred and to disregard that of
respondent’s. Petitioners insist that while the PRBLI bus was in the process of overtaking respondent’s
jeep, the latter, without warning, suddenly swerved to the left (fast) lane in order to overtake another
jeep ahead of it, thus causing the collision.
As a general rule, questions of fact may not be raised in a petition for review. The factual findings of the
trial court, especially when affirmed by the appellate court, are binding and conclusive on the Supreme
Court.38 Not being a trier of facts, this Court will not allow a review thereof unless:
(1) the conclusion is a finding grounded entirely on speculation, surmise and conjecture; (2) the
inference made is manifestly mistaken; (3) there is grave abuse of discretion; (4) the judgment is based
on a misapprehension of facts; (5) the findings of fact are conflicting; (6) the Court of Appeals went
beyond the issues of the case and its findings are contrary to the admissions of both appellant and
appellees; (7) the findings of fact of the Court of Appeals are contrary to those of the trial court; (8) said
findings of fact are conclusions without citation of specific evidence on which they are based; (9) the
facts set forth in the petition as well as in the petitioner's main and reply briefs are not disputed by the
respondents; and (10) the findings of fact of the Court of Appeals are premised on the supposed
absence of evidence and contradicted by the evidence on record. 39
After going over the evidence on record, we do not find any of the exceptions that would warrant our
departure from the general rule. We fully agree in the finding of the trial court, as affirmed by the Court
of Appeals, that it was petitioner Manliclic who was negligent in driving the PRBLI bus which was the
cause of the collision. In giving credence to the version of the respondent, the trial court has this say:
x x x Thus, which of the two versions of the manner how the collision took place was correct, would be
determinative of who between the two drivers was negligent in the operation of their respective vehicle.
In this regard, it should be noted that in the statement of Mauricio Manliclic (Exh. 15) given to the
Philippine Rabbit Investigator CV Cabading no mention was made by him about the fact that the driver
of the jeep was overtaking another jeep when the collision took place. The allegation that another jeep
was being overtaken by the jeep of Calaunan was testified to by him only in Crim. Case No. 684-M-89
before the Regional Trial Court in Malolos, Bulacan and before this Court. Evidently, it was a product of
an afterthought on the part of Mauricio Manliclic so that he could explain why he should not be held
responsible for the incident. His attempt to veer away from the truth was also apparent when it would be
considered that in his statement given to the Philippine Rabbit Investigator CV Cabading (Exh. 15), he
alleged that the Philippine Rabbit Bus bumped the jeep of Calaunan while the Philippine Rabbit Bus
was behind the said jeep. In his testimony before the Regional Trial Court in Malolos, Bulacan as well
as in this Court, he alleged that the Philippine Rabbit Bus was already on the left side of the jeep when
the collision took place. For this inconsistency between his statement and testimony, his explanation
regarding the manner of how the collision between the jeep and the bus took place should be taken with
caution. It might be true that in the statement of Oscar Buan given to the Philippine Rabbit Investigator
CV Cabading, it was mentioned by the former that the jeep of plaintiff was in the act of overtaking
another jeep when the collision between the latter jeep and the Philippine Rabbit Bus took place. But
the fact, however, that his statement was given on July 15, 1988, one day after Mauricio Manliclic gave
his statement should not escape attention. The one-day difference between the giving of the two
statements would be significant enough to entertain the possibility of Oscar Buan having received legal
advise before giving his statement. Apart from that, as between his statement and the statement of
Manliclic himself, the statement of the latter should prevail. Besides, in his Affidavit of March 10, 1989,
(Exh. 14), the unreliability of the statement of Oscar Buan (Exh. 13) given to CV Cabading rear its "ugly
head" when he did not mention in said affidavit that the jeep of Calaunan was trying to overtake another
jeep when the collision between the jeep in question and the Philippine Rabbit bus took place.
xxxx
If one would believe the testimony of the defendant, Mauricio Manliclic, and his conductor, Oscar Buan,
that the Philippine Rabbit Bus was already somewhat parallel to the jeep when the collision took place,
the point of collision on the jeep should have been somewhat on the left side thereof rather than on its
rear. Furthermore, the jeep should have fallen on the road itself rather than having been forced off the
road. Useless, likewise to emphasize that the Philippine Rabbit was running very fast as testified to by
Ramos which was not controverted by the defendants.40
Having ruled that it was petitioner Manliclic’s negligence that caused the smash up, there arises the juris
tantum presumption that the employer is negligent, rebuttable only by proof of observance of the
diligence of a good father of a family.41 Under Article 218042 of the New Civil Code, when an 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 employer either in the selection of the servant or employee, or in
supervision over him after selection or both. The liability of the employer under Article 2180 is direct and
immediate; it is not conditioned upon prior recourse against the negligent employee and a prior showing
of the insolvency of such employee. Therefore, it is incumbent upon the private respondents to prove
that they exercised the diligence of a good father of a family in the selection and supervision of their
employee.43
In the case at bar, petitioner PRBLI maintains that it had shown that it exercised the required diligence
in the selection and supervision of its employees, particularly petitioner Manliclic. In the matter of
selection, it showed the screening process that petitioner Manliclic underwent before he became a
regular driver. As to the exercise of due diligence in the supervision of its employees, it argues that
presence of ready investigators (Ganiban and Cabading) is sufficient proof that it exercised the required
due diligence in the supervision of its employees.
In the selection of prospective employees, employers are required to examine them as to their
qualifications, experience and service records. In the supervision of employees, the employer must
formulate standard operating procedures, monitor their implementation and impose disciplinary
measures for the breach thereof. To fend off vicarious liability, employers must submit concrete proof,
including documentary evidence, that they complied with everything that was incumbent on them. 44
In Metro Manila Transit Corporation v. Court of Appeals,45 it was explained that:
Due diligence in the supervision of employees on the other hand, 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.
In order that the defense of due diligence in the selection and supervision of employees may be
deemed sufficient and plausible, it is not enough to emptily invoke the existence of said company
guidelines and policies on hiring and supervision. As the negligence of the employee gives rise to the
presumption of negligence on the part of the employer, the latter has the burden of proving that it has
been diligent not only in the selection of employees but also in the actual supervision of their work. The
mere allegation of the existence of hiring procedures and supervisory policies, without anything more, is
decidedly not sufficient to overcome such presumption.
We emphatically reiterate our holding, as a warning to all employers, that "the formulation of various
company policies on safety without showing that they were being complied with is not sufficient to
exempt petitioner from liability arising from negligence of its employees. It is incumbent upon petitioner
to show that in recruiting and employing the erring driver the recruitment procedures and company
policies on efficiency and safety were followed." x x x.
The trial court found that petitioner PRBLI exercised the diligence of a good father of a family in the
selection but not in the supervision of its employees. It expounded as follows:
From the evidence of the defendants, it seems that the Philippine Rabbit Bus Lines has a very good
procedure of recruiting its driver as well as in the maintenance of its vehicles. There is no evidence
though that it is as good in the supervision of its personnel. There has been no iota of evidence
introduced by it that there are rules promulgated by the bus company regarding the safe operation of its
vehicle and in the way its driver should manage and operate the vehicles assigned to them. There is no
showing that somebody in the bus company has been employed to oversee how its driver should
behave while operating their vehicles without courting incidents similar to the herein case. In regard to
supervision, it is not difficult to observe that the Philippine Rabbit Bus Lines, Inc. has been negligent as
an employer and it should be made responsible for the acts of its employees, particularly the driver
involved in this case.
We agree. The presence of ready investigators after the occurrence of the accident is not enough to
exempt petitioner PRBLI from liability arising from the negligence of petitioner Manliclic. Same does not
comply with the guidelines set forth in the cases above-mentioned. The presence of the investigators
after the accident is not enough supervision. Regular supervision of employees, that is, prior to any
accident, should have been shown and established. This, petitioner failed to do. The lack of supervision
can further be seen by the fact that there is only one set of manual containing the rules and regulations
for all the drivers of PRBLI. 46 How then can all the drivers of petitioner PRBLI know and be continually
informed of the rules and regulations when only one manual is being lent to all the drivers?
For failure to adduce proof that it exercised the diligence of a good father of a family in the selection and
supervision of its employees, petitioner PRBLI is held solidarily responsible for the damages caused by
petitioner Manliclic’s negligence.
We now go to the award of damages. The trial court correctly awarded the amount of P40,838.00 as
actual damages representing the amount paid by respondent for the towing and repair of his jeep. 47 As
regards the awards for moral and exemplary damages, same, under the circumstances, must be
modified. The P100,000.00 awarded by the trial court as moral damages must be reduced
to P50,000.00.48 Exemplary damages are imposed by way of example or correction for the public
good.49 The amount awarded by the trial court must, likewise, be lowered to P50,000.00.50 The award
of P15,000.00 for attorney’s fees and expenses of litigation is in order and authorized by law. 51
WHEREFORE, premises considered, the instant petition for review is DENIED. The decision of the
Court of Appeals in CA-G.R. CV No. 55909 is AFFIRMED with the MODIFICATION that (1) the award of
moral damages shall be reduced to P50,000.00; and (2) the award of exemplary damages shall be
lowered to P50,000.00. Costs against petitioners.
SO ORDERED.
5. G.R. No. 145391 August 26, 2002
AVELINO CASUPANAN and ROBERTO CAPITULO, petitioners,
vs.
MARIO LLAVORE LAROYA, respondent.
CARPIO, J.:
The Case
This is a petition for review on certiorari to set aside the Resolution 1 dated December 28, 1999
dismissing the petition for certiorari and the Resolution2 dated August 24, 2000 denying the motion for
reconsideration, both issued by the Regional Trial Court of Capas, Tarlac, Branch 66, in Special Civil
Action No. 17-C (99).
The Facts
Two vehicles, one driven by respondent Mario Llavore Laroya ("Laroya" for brevity) and the other
owned by petitioner Roberto Capitulo ("Capitulo" for brevity) and driven by petitioner Avelino
Casupanan ("Casupanan" for brevity), figured in an accident. As a result, two cases were filed with the
Municipal Circuit Trial Court ("MCTC" for brevity) of Capas, Tarlac. Laroya filed a criminal case against
Casupanan for reckless imprudence resulting in damage to property, docketed as Criminal Case No.
002-99. On the other hand, Casupanan and Capitulo filed a civil case against Laroya for quasi-delict,
docketed as Civil Case No. 2089.
When the civil case was filed, the criminal case was then at its preliminary investigation stage. Laroya,
defendant in the civil case, filed a motion to dismiss the civil case on the ground of forum-shopping
considering the pendency of the criminal case. The MCTC granted the motion in the Order of March 26,
1999 and dismissed the civil case.
On Motion for Reconsideration, Casupanan and Capitulo insisted that the civil case is a separate civil
action which can proceed independently of the criminal case. The MCTC denied the motion for
reconsideration in the Order of May 7, 1999. Casupanan and Capitulo filed a petition for certiorari under
Rule 65 before the Regional Trial Court ("Capas RTC" for brevity) of Capas, Tarlac, Branch
66,3 assailing the MCTC’s Order of dismissal.
The Trial Court’s Ruling
The Capas RTC rendered judgment on December 28, 1999 dismissing the petition for certiorari for lack
of merit. The Capas RTC ruled that the order of dismissal issued by the MCTC is a final order which
disposes of the case and therefore the proper remedy should have been an appeal. The Capas RTC
further held that a special civil action for certiorari is not a substitute for a lost appeal. Finally, the Capas
RTC declared that even on the premise that the MCTC erred in dismissing the civil case, such error is a
pure error of judgment and not an abuse of discretion.
Casupanan and Capitulo filed a Motion for Reconsideration but the Capas RTC denied the same in the
Resolution of August 24, 2000.
Hence, this petition.
The Issue
The petition premises the legal issue in this wise:
"In a certain vehicular accident involving two parties, each one of them may think and believe that the
accident was caused by the fault of the other. x x x [T]he first party, believing himself to be the
aggrieved party, opted to file a criminal case for reckless imprudence against the second party. On the
other hand, the second party, together with his operator, believing themselves to be the real aggrieved
parties, opted in turn to file a civil case for quasi-delict against the first party who is the very private
complainant in the criminal case."4
Thus, the issue raised is whether an accused in a pending criminal case for reckless imprudence can
validly file, simultaneously and independently, a separate civil action for quasi-delict against the private
complainant in the criminal case.
The Court’s Ruling
Casupanan and Capitulo assert that Civil Case No. 2089, which the MCTC dismissed on the ground of
forum-shopping, constitutes a counterclaim in the criminal case. Casupanan and Capitulo argue that if
the accused in a criminal case has a counterclaim against the private complainant, he may file the
counterclaim in a separate civil action at the proper time. They contend that an action on quasi-delict is
different from an action resulting from the crime of reckless imprudence, and an accused in a criminal
case can be an aggrieved party in a civil case arising from the same incident. They maintain that under
Articles 31 and 2176 of the Civil Code, the civil case can proceed independently of the criminal action.
Finally, they point out that Casupanan was not the only one who filed the independent civil action based
on quasi-delict but also Capitulo, the owner-operator of the vehicle, who was not a party in the criminal
case.
In his Comment, Laroya claims that the petition is fatally defective as it does not state the real
antecedents. Laroya further alleges that Casupanan and Capitulo forfeited their right to question the
order of dismissal when they failed to avail of the proper remedy of appeal. Laroya argues that there is
no question of law to be resolved as the order of dismissal is already final and a petition for certiorari is
not a substitute for a lapsed appeal.
In their Reply, Casupanan and Capitulo contend that the petition raises the legal question of whether
there is forum-shopping since they filed only one action - the independent civil action for quasi-
delict against Laroya.
Nature of the Order of Dismissal
The MCTC dismissed the civil action for quasi-delict on the ground of forum-shopping under Supreme
Court Administrative Circular No. 04-94. The MCTC did not state in its order of dismissal5 that the
dismissal was with prejudice. Under the Administrative Circular, the order of dismissal is without
prejudice to refiling the complaint, unless the order of dismissal expressly states it is with
prejudice.6 Absent a declaration that the dismissal is with prejudice, the same is deemed without
prejudice. Thus, the MCTC’s dismissal, being silent on the matter, is a dismissal without prejudice.
Section 1 of Rule 417 provides that an order dismissing an action without prejudice is not appealable.
The remedy of the aggrieved party is to file a special civil action under Rule 65. Section 1 of Rule 41
expressly states that "where the judgment or final order is not appealable, the aggrieved party may file
an appropriate special civil action under Rule 65." Clearly, the Capas RTC’s order dismissing the
petition for certiorari, on the ground that the proper remedy is an ordinary appeal, is erroneous.
Forum-Shopping
The essence of forum-shopping is the filing of multiple suits involving the same parties for the same
cause of action, either simultaneously or successively, to secure a favorable judgment. 8 Forum-
shopping is present when in the two or more cases pending, there is identity of parties, rights of action
and reliefs sought.9 However, there is no forum-shopping in the instant case because the law and the
rules expressly allow the filing of a separate civil action which can proceed independently of the criminal
action.
Laroya filed the criminal case for reckless imprudence resulting in damage to property based on the
Revised Penal Code while Casupanan and Capitulo filed the civil action for damages based on Article
2176 of the Civil Code. Although these two actions arose from the same act or omission, they have
different causes of action. The criminal case is based on culpa criminal punishable under the Revised
Penal Code while the civil case is based on culpa aquiliana actionable under Articles 2176 and 2177 of
the Civil Code. These articles on culpa aquiliana read:
"Art. 2176. Whoever by act or omission causes damage to another, there being fault or negligence, is
obliged to pay for the damage done. Such fault or negligence, if there is no pre-existing contractual
relation between the parties, is called a quasi-delict and is governed by the provisions of this Chapter.
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."
Any aggrieved person can invoke these articles provided he proves, by preponderance of evidence, that
he has suffered damage because of the fault or negligence of another. Either the private complainant or
the accused can file a separate civil action under these articles. There is nothing in the law or rules that
state only the private complainant in a criminal case may invoke these articles.
Moreover, paragraph 6, Section 1, Rule 111 of the 2000 Rules on Criminal Procedure ("2000 Rules" for
brevity) expressly requires the accused to litigate his counterclaim in a separate civil action, to wit:
"SECTION 1. Institution of criminal and civil actions. – (a) x x x.
No counterclaim, cross-claim or third-party complaint may be filed by the accused in the criminal case,
but any cause of action which could have been the subject thereof may be litigated in a separate civil
action." (Emphasis supplied)
Since the present Rules require the accused in a criminal action to file his counterclaim in a separate
civil action, there can be no forum-shopping if the accused files such separate civil action.
Filing of a separate civil action
Section 1, Rule 111 of the 1985 Rules on Criminal Procedure ("1985 Rules" for brevity), as amended in
1988, allowed the filing of a separate civil action independently of the criminal action provided the
offended party reserved the right to file such civil action. Unless the offended party reserved the civil
action before the presentation of the evidence for the prosecution, all civil actions arising from the same
act or omission were deemed "impliedly instituted" in the criminal case. These civil actions referred to
the recovery of civil liability ex-delicto, the recovery of damages for quasi-delict, and the recovery of
damages for violation of Articles 32, 33 and 34 of the Civil Code on Human Relations.
Thus, to file a separate and independent civil action for quasi-delict under the 1985 Rules, the offended
party had to reserve in the criminal action the right to bring such action. Otherwise, such civil action was
deemed "impliedly instituted" in the criminal action. Section 1, Rule 111 of the 1985 Rules provided as
follows:
"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 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.
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 reservation of the right to institute the separate civil actions shall be made before the
prosecution starts to present its evidence and under circumstances affording the offended
party a reasonable opportunity to make such reservation.
In no case may the offended party recover damages twice for the same act or omission of the
accused.
x x x." (Emphasis supplied)
Section 1, Rule 111 of the 1985 Rules was amended on December 1, 2000 and now provides as
follows:
"SECTION 1. Institution of criminal and civil actions. – (a) When a criminal action is
instituted, the civil action for the recovery of civil liability arising from the offense
charged shall be deemed instituted with the criminal action unless the offended party
waives the civil action, reserves the right to institute it separately or institutes the civil action
prior to the criminal action.
The reservation of the right to institute separately the civil action shall be made before the
prosecution starts presenting its evidence and under circumstances affording the offended
party a reasonable opportunity to make such reservation.
xxx
(b) x x x
Where the civil action has been filed separately and trial thereof has not yet commenced, it
may be consolidated with the criminal action upon application with the court trying the latter
case. If the application is granted, the trial of both actions shall proceed in accordance with
section 2 of this rule governing consolidation of the civil and criminal actions." (Emphasis
supplied)
Under Section 1 of the present Rule 111, what is "deemed instituted" with the criminal action is only the
action to recover civil liability arising from the crime or ex-delicto. All the other civil actions under Articles
32, 33, 34 and 2176 of the Civil Code are no longer "deemed instituted," and may be filed separately
and prosecuted independently even without any reservation in the criminal action. The failure to make a
reservation in the criminal action is not a waiver of the right to file a separate and independent civil
action based on these articles of the Civil Code. The prescriptive period on the civil actions based on
these articles of the Civil Code continues to run even with the filing of the criminal action. Verily, the civil
actions based on these articles of the Civil Code are separate, distinct and independent of the civil
action "deemed instituted" in the criminal action.10
Under the present Rule 111, the offended party is still given the option to file a separate civil action to
recover civil liability ex-delicto by reserving such right in the criminal action before the prosecution
presents its evidence. Also, the offended party is deemed to make such reservation if he files a
separate civil action before filing the criminal action. If the civil action to recover civil liability ex-delicto is
filed separately but its trial has not yet commenced, the civil action may be consolidated with the
criminal action. The consolidation under this Rule does not apply to separate civil actions arising from
the same act or omission filed under Articles 32, 33, 34 and 2176 of the Civil Code. 11
Suspension of the Separate Civil Action
Under Section 2, Rule 111 of the amended 1985 Rules, a separate civil action, if reserved in the
criminal action, could not be filed until after final judgment was rendered in the criminal action. If the
separate civil action was filed before the commencement of the criminal action, the civil action, if still
pending, was suspended upon the filing of the criminal action until final judgment was rendered in the
criminal action. This rule applied only to the separate civil action filed to recover liability ex-delicto. The
rule did not apply to independent civil actions based on Articles 32, 33, 34 and 2176 of the Civil Code,
which could proceed independently regardless of the filing of the criminal action.
The amended provision of Section 2, Rule 111 of the 2000 Rules continues this procedure, to wit:
"SEC. 2. When separate civil action is suspended. – After the criminal action has been commenced, the
separate civil action arising therefrom cannot be instituted until final judgment has been entered in the
criminal action.
If the criminal action is filed after the said civil action has already been instituted, the latter shall
be suspended in whatever stage it may be found before judgment on the merits. The suspension
shall last until final judgment is rendered in the criminal action. Nevertheless, before judgment on
the merits is rendered in the civil action, the same may, upon motion of the offended party, be
consolidated with the criminal action in the court trying the criminal action. In case of consolidation, the
evidence already adduced in the civil action shall be deemed automatically reproduced in the criminal
action without prejudice to the right of the prosecution to cross-examine the witnesses presented by the
offended party in the criminal case and of the parties to present additional evidence. The consolidated
criminal and civil actions shall be tried and decided jointly.
During the pendency of the criminal action, the running of the period of prescription of the civil action
which cannot be instituted separately or whose proceeding has been suspended shall be tolled.
x x x." (Emphasis supplied)
Thus, Section 2, Rule 111 of the present Rules did not change the rule that the separate civil action,
filed to recover damages ex-delicto, is suspended upon the filing of the criminal action. Section 2 of the
present Rule 111 also prohibits the filing, after commencement of the criminal action, of a separate civil
action to recover damages ex-delicto.
When civil action may proceed independently
The crucial question now is whether Casupanan and Capitulo, who are not the offended parties in the
criminal case, can file a separate civil action against the offended party in the criminal case. Section 3,
Rule 111 of the 2000 Rules provides as follows:
"SEC 3. When civil action may proceed independently. - In the cases provided in Articles 32, 33, 34 and
2176 of the Civil Code of the Philippines, the independent civil action may be brought by
the offendedparty. It shall proceed independently of the criminal action and shall require only a
preponderance of evidence. In no case, however, may the offended party recover damages twice for
the same act or omission charged in the criminal action." (Emphasis supplied)
Section 3 of the present Rule 111, like its counterpart in the amended 1985 Rules, expressly allows the
"offended party" to bring an independent civil action under Articles 32, 33, 34 and 2176 of the Civil
Code. As stated in Section 3 of the present Rule 111, this civil action shall proceed independently of the
criminal action and shall require only a preponderance of evidence. In no case, however, may the
"offended party recover damages twice for the same act or omission charged in the criminal action."
There is no question that the offended party in the criminal action can file an independent civil action for
quasi-delict against the accused. Section 3 of the present Rule 111 expressly states that the "offended
party" may bring such an action but the "offended party" may not recover damages twice for the same
act or omission charged in the criminal action. Clearly, Section 3 of Rule 111 refers to the offended
party in the criminal action, not to the accused.
Casupanan and Capitulo, however, invoke the ruling in Cabaero vs. Cantos12 where the Court held
that the accused therein could validly institute a separate civil action for quasi-delict against the private
complainant in the criminal case. In Cabaero, the accused in the criminal case filed his Answer with
Counterclaim for malicious prosecution. At that time the Court noted the "absence of clear-cut rules
governing the prosecution on impliedly instituted civil actions and the necessary consequences and
implications thereof." Thus, the Court ruled that the trial court should confine itself to the criminal
aspect of the case and disregard any counterclaim for civil liability. The Court further ruled that the
accused may file a separate civil case against the offended party "after the criminal case is terminated
and/or in accordance with the new Rules which may be promulgated." The Court explained that a cross-
claim, counterclaim or third-party complaint on the civil aspect will only unnecessarily complicate the
proceedings and delay the resolution of the criminal case.
Paragraph 6, Section 1 of the present Rule 111 was incorporated in the 2000 Rules precisely to address
the lacuna mentioned in Cabaero. Under this provision, the accused is barred from filing a
counterclaim, cross-claim or third-party complaint in the criminal case. However, the same provision
states that "any cause of action which could have been the subject (of the counterclaim, cross-claim or
third-party complaint) may be litigated in a separate civil action." The present Rule 111 mandates the
accused to file his counterclaim in a separate civil actiosn which shall proceed independently of the
criminal action, even as the civil action of the offended party is litigated in the criminal action.
Conclusion
Under Section 1 of the present Rule 111, the independent civil action in Articles 32, 33, 34 and 2176 of
the Civil Code is not deemed instituted with the criminal action but may be filed separately by the
offended party even without reservation. The commencement of the criminal action does not suspend
the prosecution of the independent civil action under these articles of the Civil Code. The suspension in
Section 2 of the present Rule 111 refers only to the civil action arising from the crime, if such civil action
is reserved or filed before the commencement of the criminal action.
Thus, the offended party can file two separate suits for the same act or omission. The first a criminal
case where the civil action to recover civil liability ex-delicto is deemed instituted, and the other a civil
case for quasi-delict - without violating the rule on non-forum shopping. The two cases can proceed
simultaneously and independently of each other. The commencement or prosecution of the criminal
action will not suspend the civil action for quasi-delict. The only limitation is that the offended party
cannot recover damages twice for the same act or omission of the defendant. In most cases, the
offended party will have no reason to file a second civil action since he cannot recover damages twice
for the same act or omission of the accused. In some instances, the accused may be insolvent,
necessitating the filing of another case against his employer or guardians.
Similarly, the accused can file a civil action for quasi-delict for the same act or omission he is accused of
in the criminal case. This is expressly allowed in paragraph 6, Section 1 of the present Rule 111 which
states that the counterclaim of the accused "may be litigated in a separate civil action." This is only
fair for two reasons. First, the accused is prohibited from setting up any counterclaim in the civil aspect
that is deemed instituted in the criminal case. The accused is therefore forced to litigate separately his
counterclaim against the offended party. If the accused does not file a separate civil action for quasi-
delict, the prescriptive period may set in since the period continues to run until the civil action for quasi-
delict is filed.
Second, the accused, who is presumed innocent, has a right to invoke Article 2177 of the Civil Code, in
the same way that the offended party can avail of this remedy which is independent of the criminal
action. To disallow the accused from filing a separate civil action for quasi-delict, while refusing to
recognize his counterclaim in the criminal case, is to deny him due process of law, access to the courts,
and equal protection of the law.
Thus, the civil action based on quasi-delict filed separately by Casupanan and Capitulo is proper. The
order of dismissal by the MCTC of Civil Case No. 2089 on the ground of forum-shopping is erroneous.
We make this ruling aware of the possibility that the decision of the trial court in the criminal case may
vary with the decision of the trial court in the independent civil action. This possibility has always been
recognized ever since the Civil Code introduced in 1950 the concept of an independent civil action
under Articles 32, 33, 34 and 2176 of the Code. But the law itself, in Article 31 of the Code, expressly
provides that the independent civil action "may proceed independently of the criminal proceedings and
regardless of the result of the latter." In Azucena vs. Potenciano,13 the Court declared:
"x x x. There can indeed be no other logical conclusion than this, for to subordinate the civil action
contemplated in the said articles to the result of the criminal prosecution — whether it be conviction or
acquittal — would render meaningless the independent character of the civil action and the clear
injunction in Article 31 that this action 'may proceed independently of the criminal proceedings and
regardless of the result of the latter.’"
More than half a century has passed since the Civil Code introduced the concept of a civil action
separate and independent from the criminal action although arising from the same act or omission. The
Court, however, has yet to encounter a case of conflicting and irreconcilable decisions of trial courts,
one hearing the criminal case and the other the civil action for quasi-delict. The fear of conflicting and
irreconcilable decisions may be more apparent than real. In any event, there are sufficient remedies
under the Rules of Court to deal with such remote possibilities.
One final point. The Revised Rules on Criminal Procedure took effect on December 1, 2000 while the
MCTC issued the order of dismissal on December 28, 1999 or before the amendment of the rules. The
Revised Rules on Criminal Procedure must be given retroactive effect considering the well-settled rule
that -
"x x x statutes regulating the procedure of the court will be construed as applicable to actions pending
and undetermined at the time of their passage. Procedural laws are retroactive in that sense and to that
extent."14
WHEREFORE, the petition for review on certiorari is hereby GRANTED. The Resolutions dated
December 28, 1999 and August 24, 2000 in Special Civil Action No. 17-C (99) are ANNULLED and
Civil Case No. 2089 is REINSTATED.
SO ORDERED.