in the employ of Abiad.
The pain he suffered required him to undergo medical physiotherapy for a
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 172200 July 6, 2010
THE HEIRS OF REDENTOR COMPLETO and ELPIDIO ABIAD, Petitioners,
vs.
SGT. AMANDO C. ALBAYDA, JR., Respondent.
DECISION
NACHURA, J.:
Before the Court is a petition for review on certiorari under Rule 45 of the Rules of Court, assailing the
Decision1dated January 2, 2006 and the Resolution2 dated March 30, 2006 of the Court of Appeals
(CA) in CA-G.R. CV No. 68405.
The Facts
The facts of the case are as follows:
Respondent Amando C. Albayda, Jr. (Albayda) is a Master Sergeant of the Philippine Air Force, 527th
Base Security Squadron, 520th Airbase, Philippine Air Force, located at Villamor Air Base (VAB),
Pasay City. Petitioner Redentor Completo (Completo), now represented by his heirs, was the taxi
driver of a Toyota Corolla, bearing Plate No. PYD-128, owned and operated by co-petitioner Elpidio
Abiad (Abiad).3 Albayda and Completo figured in an accident along the intersection of 8th and 11th
Streets, VAB. Albayda filed a complaint for damages before the Regional Trial Court (RTC) of Pasay
City. The case was docketed as Civil Case No. 98-1333.4
The amended complaint alleged that, on August 27, 1997, while Albayda was on his way to the office
to report for duty, riding a bicycle along 11th Street, the taxi driven by Completo bumped and
sideswiped him, causing serious physical injuries. Albayda was brought to the Philippine Air Force
General Hospital (PAFGH) inside VAB. However, he was immediately transferred to the Armed
Forces of the Philippines Medical Center (AFPMC) on V. Luna Road, Quezon City, because there was
a fracture in his left knee and there was no orthopedic doctor available at PAFGH. From August 27,
1997 until February 11, 1998, he was confined therein. He was again hospitalized at PAFGH from
February 23, 1998 until March 22, 1998.5
Conciliation between the parties before the barangay failed. Thus, Albayda filed a complaint for
physical injuries through reckless imprudence against Completo before the Office of the City
Prosecutor of Pasay City. On the other hand, Completo filed a counter-charge of damage to property
through reckless imprudence against Albayda. On January 13, 1998, the Office of the City Prosecutor
issued a resolution,6 recommending the filing of an information for reckless imprudence resulting in
physical injuries against Completo. The counter-charge of damage to property was recommended
dismissed.7
The case was raffled to the Metropolitan Trial Court of Pasay City, Branch 45, where Albayda
manifested his reservation to file a separate civil action for damages against petitioners Completo and
Abiad.8
Albayda alleged that the proximate cause of the incident which necessitated his stay in the hospital for
approximately seven (7) months was the negligence of Completo who, at the time of the accident, was
number of years to regain normality of his left knee joint, and he claimed that he incurred actual
damages totaling Two Hundred Seventy-Six Thousand Five Hundred Fifty Pesos (P276,550.00),
inclusive of his anticipated operations.9
He further stated that aggravating the physical sufferings, mental anguish, frights, serious anxiety,
besmirched reputation, wounded feelings, moral shock, and social humiliation resulting from his
injuries, his wife abandoned him in May 1998, and left their children in his custody. He thus demanded
the amount of Six Hundred Thousand Pesos (P600,000.00) as moral damages. He likewise asked for
exemplary damages in the amount of Two Hundred Thousand Pesos (P200,000.00) and attorney’s fees
of Twenty-Five Thousand Pesos (P25,000.00), plus One Thousand Pesos (P1,000.00) per court
appearance.10
In his answer to the amended complaint, Completo alleged that, on August 27, 1997, he was carefully
driving the taxicab along 8th Street, VAB, when suddenly he heard a strange sound from the rear right
side of the taxicab. When he stopped to investigate, he found Albayda lying on the road and holding
his left leg. He immediately rendered assistance and brought Albayda to PAFGH for emergency
treatment.11
Completo also asserted that he was an experienced driver who, in accordance with traffic rules and
regulations and common courtesy to his fellow motorists, had already reduced his speed to twenty (20)
kilometers per hour even before reaching the intersection of 8th and 11th Streets. In contrast, Albayda
rode his bicycle at a very high speed, causing him to suddenly lose control of the bicycle and hit the
rear door on the right side of the taxicab.12
The deep indentation on the rear right door of the taxicab was caused by the impact of Albayda’s body
that hit the taxicab after he had lost control of the bicycle; while the slight indentation on the right front
door of the taxicab was caused by the impact of the bike that hit the taxicab after Albayda let go of its
handles when he had lost control of it.13
Completo maintained that Albayda had no cause of action. The accident and the physical injuries
suffered by Albayda were caused by his own negligence, and his purpose in filing the complaint was to
harass petitioners and unjustly enrich himself at their expense.14
After submission of the parties’ respective pleadings, a pretrial conference was held. On December 8,
1998, the RTC issued a pretrial order. Thereafter, trial on the merits ensued.15
Albayda presented himself, Michael Navarro (Navarro), Dr. Rito Barrosa, Jr. (Dr. Barrosa), Dr.
Armando Sta. Ana, Jr., Dr. Ranny Santiago, (Dr. Santiago), and Dr. Manuel Fidel Magtira (Dr.
Magtira) as witnesses in open court.16
On direct examination, Navarro testified that, on August 27, 1997, at around 1:45 p.m., he saw a
taxicab, with Plate No. PYD-128, coming from 11th Street, running at an unusual speed. The normal
speed should have been twenty-five (25) kilometers per hour. He was at the corner of 9th and 8th
Streets when the taxicab passed by him. The side of the bicycle was hit by the taxicab at the
intersection of 11th and 8th Streets. He saw Albayda fall to the ground, grimacing in pain. The taxicab
at that moment was about ten (10) meters away from Albayda. On cross-examination, Navarro
reiterated that the taxicab was running quite fast. The bicycle ridden by Albayda reached the
intersection of 8th and 11th Streets before the taxicab hit it.17
Dr. Santiago, the orthopedic surgeon who treated Albayda when the latter was admitted at AFPMC,
testified that the cause of the injury was "hard impact," and recommended an operation to alleviate the
suffering. On cross-examination, he said that there was a separation of the fragments of the proximal
leg, the injured extremity, called levia. They placed the victim on knee traction or calcaneal
traction,18 in order to avoid further swelling. They bore the calcanean bone with a stainless steel pin so
that they could put five percent (5%) of the body weight of the patient to cool down the leg. He treated
Albayda for three (3) months. He recommended surgery, but the victim had other medical problems,
like an increase in sugar level, and they were waiting for the availability of the implant. The implant
was supposed to be placed on the lateral aspect of the proximal leg or the levia, the part with the
separation. It was a long implant with screws.19
Dr. Magtira testified that Albayda was readmitted at AFPMC on January 25, 1999 because of
complaints of pain and limitation of motion on the knee joint. Upon evaluation, the pain was caused by
traumatic arthritis brought about by malunion of the lateral trivial condial. An operation of the soft
tissue release was conducted for him to mobilize his knee joint and attain proper range of motion. After
the operation, Albayda attained functional range of motion, but because of subsisting pain, they had to
do osteoplasty20 of the malunion, which was another operation. On cross-examination, Dr. Magtira
testified that he rendered free medical service at AFPMC.21
Albayda testified that he was thirty-six (36) years old and a soldier of the Armed Forces of the
Philippines. On August 27, 1997, at around 1:40 p.m., he was riding his bike on his way to the office,
located on 916 Street, VAB. He had to stop at the corner of 11th and 8th Streets because an oncoming
taxicab was moving fast. However, the taxicab still bumped the front tire of his bike, hit his left knee
and threw him off until he fell down on the road. The taxicab stopped about ten meters away, and then
moved backwards. Its driver, Completo, just stared at him. When somebody shouted to bring him to
the hospital, two (2) persons, one of whom was Dr. Barrosa, helped him and carried him into the
taxicab driven by Completo, who brought him to PAFGH.22
Upon examination, it was found that Albayda suffered fracture in his left knee and that it required an
operation. No orthopedic doctor was available at PAFGH. Thus, he was transferred that same
afternoon to AFPMC, where he was confined until February 11, 1998.23
At AFPMC, Albayda’s left leg was drilled on and attached to traction. When his leg was drilled, it was
so painful that he had to shout. After his release from the hospital, he continued to suffer pain in his
leg. He underwent reflexology and therapy which offered temporary relief from pain. But after some
time, he had to undergo therapy and reflexology again.24
On January 25, 1999, Albayda was readmitted at AFPMC and operated on. On June 24, 1999, he was
operated on again. Wire and screw were installed so that he could bend his knee. Nonetheless, he
continued to suffer pain. As of the date of his testimony in court, he was scheduled for another
operation in January 2000, when the steel that would be installed in his leg arrives.25
For his food, Albayda spent Thirty Pesos (P30.00) each day during his six (6) months of confinement;
for his bed pan, One Thousand Pesos (P1,000.00); for his twice weekly reflexology, Three Hundred
Pesos (P300.00) every session since April 1997; for his caretaker, P300.00 per day for six months. He
also asked for P600,000.00 in moral damages because Completo did not lend him a helping hand, and
he would be suffering deformity for the rest of his life. He demanded P25,000.00 as attorney’s fees
and P1,000.00 for every court appearance of his lawyer.26
On cross-examination, Albayda testified that, on the date of the incident, he was the base guard at
VAB, and his duty was from 2 p.m. to 8 p.m. That afternoon, he was not in a hurry to go to his place of
work because it was only about 1:45 p.m., and his place of work was only six (6) meters away. After
the accident, he was brought to PAFGH, and at 3:00 p.m., he was brought to the AFPMC. When he
was discharged from the hospital, he could no longer walk.27
Dr. Barrosa’s testimony during cross-examination emphasized that he was with 2 other persons when
he carried Albayda into the taxicab driven by Completo. He was certain that it was not Completo who
carried the victim into the taxicab. It was only a matter of seconds when he rushed to the scene of the
accident. The taxicab backed up fifteen (15) seconds later. Albayda lay 2 meters away from the corner
of 8th and 11th Streets.28
Completo, Abiad, and Benjamin Panican (Panican) testified for the defense.29
Completo alleged that he had been employed as taxi driver of FOJS Transport, owned by Abiad, since
February 1997. On August 27, 1997, he was driving the taxicab, with Plate No. PYD-128, from 10:00
a.m. At around 1:45 p.m., he was on his way home when a bicycle bumped his taxicab at the
intersection of 8th and 11th Streets, VAB. The bicycle was travelling from south to north, and he was
going east coming from the west. The bicycle was coming from 11th Street, while he was travelling
along 8th Street.30
On cross-examination, Completo testified that when Albayda hit the rear right door of the taxicab, the
latter fell to the ground. When he heard a noise, he immediately alighted from the taxicab. He denied
that he stopped about 10 meters away from the place where Albayda fell. He carried Albayda and
drove him to the hospital.31
Panican testified that he worked as an airconditioner technician in a shop located on 8th Street corner
11th Street. On the date and time of the incident, he was working in front of the shop near the roadside.
He saw a bicycle bump the rear right side of the taxicab. Then, the driver of the taxicab alighted,
carried Albayda, and brought him to the hospital.32
When questioned by the trial court, Panican testified that the bicycle was running fast and that he saw
it bump the taxicab. The taxicab already passed the intersection of 11th and 8th Streets when the
bicycle arrived.33
Abiad testified that, aside from being a soldier, he was also a franchise holder of taxicabs and
passenger jeepneys. When Completo applied as a driver of the taxicab, Abiad required the former to
show his bio-data, NBI clearance, and driver’s license. Completo never figured in a vehicular accident
since the time he was employed in February 1997. Abiad averred that Completo was a good driver and
a good man. Being the operator of taxicab, Abiad would wake up early and personally check all the
taxicabs.34
On July 31, 2000, the trial court rendered a decision,35 the dispositive portion of which reads:
WHEREFORE, judgment is hereby rendered in favor of the plaintiff [Albayda] and against the
defendants [Completo and Abiad]. Accordingly, the defendants [Completo and Abiad] are hereby
ordered to pay the plaintiff [Albayda] the following sum:
1. P46,000.00 as actual damages;
2. P400,000.00 as moral damages; [and]
3. P25,000.00 as attorney’s fees.
Costs against the defendants [Completo and Abiad].
SO ORDERED.36
Completo and Abiad filed an appeal. The CA affirmed the trial court with modification in a
Decision37 dated January 2, 2006, viz.:
WHEREFORE, premises considered, the appeal is DENIED for lack of merit. The assailed Decision
dated 31 July 2000 rendered by the Regional Trial Court of Pasay City, Branch 117, in Civil Case No.
98-1333 is hereby AFFIRMED with the following MODIFICATIONS:
1. the award of Php 46,000.00 as actual damages is DELETED;
2. temperate damages in the amount of Php 40,000.00 is awarded in favor of appellee;
3. moral damages in favor of appellee is REDUCED to Php 200,000.00;
4. appellants Redentor Completo and Elpidio Abiad are solidarily liable to pay appellee
Amando C. Albayda, Jr. said temperate and moral damages, as well as the attorney’s fees in
the amount of Php 25,000.00 awarded by the trial court;
5. the temperate and moral damages shall earn legal interest at 6% per annum computed from
the date of promulgation of Our Decision;
6. upon finality of Our Decision, said moral and temperate damages shall earn legal interest at
the rate of 12% per annum, in lieu of 6% per annum, until full payment. Costs against
appellants.
SO ORDERED.38
Hence, this petition.
The Issues
Petitioners presented the following issues for resolution: (1) whether the CA erred in finding that
Completo was the one who caused the collision;
(2) whether Abiad failed to prove that he observed the diligence of a good father of the family; and (3)
whether the award of moral and temperate damages and attorney’s fees to Albayda had no basis.39
The Ruling of the Court
The petition is bereft of merit.
I. On Negligence
The issues raised by petitioners essentially delve into factual matters which were already passed upon
by the RTC and the CA. Conclusions and findings of fact of the trial court are entitled to great weight
on appeal and should not be disturbed unless for strong and cogent reasons, because the trial court is in
a better position to examine real evidence, as well as to observe the demeanor of the witnesses while
testifying in the case. The fact that the CA adopted the findings of fact of the trial court makes the
same binding upon this Court. Well-settled is the rule that the Supreme Court is not a trier of
facts.40 To be sure, findings of fact of lower courts are deemed conclusive and binding upon the
Supreme Court, save only for clear and exceptional reasons,41 none of which is present in the case at
bar.
The instant case involved a collision between a taxicab and a bicycle which resulted in serious physical
injuries to the bicycle rider, Albayda. It is a rule in negligence suits that the plaintiff has the burden of
proving by a preponderance of evidence the motorist’s breach in his duty of care owed to the plaintiff,
that the motorist was negligent in failing to exercise the diligence required to avoid injury to the
plaintiff, and that such negligence was the proximate cause of the injury suffered.42
Article 2176 of the Civil Code provides that whoever by act or omission causes damage to another,
there being fault or negligence, is obliged to pay for the damage done. Such fault or negligence, if
there is no preexisting contractual relation between the parties, is called a quasi-delict. In this regard,
the question of the motorist's negligence is a question of fact.
It was proven by a preponderance of evidence that Completo failed to exercise reasonable diligence in
driving the taxicab because he was over-speeding at the time he hit the bicycle ridden by Albayda.
Such negligence was the sole and proximate cause of the serious physical injuries sustained by
Albayda. Completo did not slow down even when he approached the intersection of 8th and 11th
Streets of VAB. It was also proven that Albayda had the right of way, considering that he reached the
intersection ahead of Completo.
The bicycle occupies a legal position that is at least equal to that of other vehicles lawfully on the
highway, and it is fortified by the fact that usually more will be required of a motorist than a bicyclist
in discharging his duty of care to the other because of the physical advantages the automobile has over
the bicycle.43
At the slow speed of ten miles per hour, a bicyclist travels almost fifteen feet per second, while a car
traveling at only twenty-five miles per hour covers almost thirty-seven feet per second, and split-
second action may be insufficient to avoid an accident. It is obvious that a motor vehicle poses a
greater danger of harm to a bicyclist than vice versa. Accordingly, while the duty of using reasonable
care falls alike on a motorist and a bicyclist, due to the inherent differences in the two vehicles, more
care is required from the motorist to fully discharge the duty than from the bicyclist.44 Simply stated,
the physical advantages that the motor vehicle has over the bicycle make it more dangerous to the
bicyclist than vice versa.45
Under Article 2180 of the Civil Code, the obligation imposed by Article 2176 is demandable not only
for one’s own acts or omissions, but also for those persons for whom one is responsible. Employers
shall be liable for the damages caused by their employees, but the employers’ responsibility shall cease
upon proof that they observed all the diligence of a good father of the family in the selection and
supervision of their employees.
When an injury is caused by the negligence of an employee, a legal presumption instantly arises that
the employer was negligent. This presumption may be rebutted only by a clear showing on the part of
the employer that he exercised the diligence of a good father of a family in the selection and
supervision of his employee. If the employer successfully overcomes the legal presumption of
negligence, he is relieved of liability. In other words, the burden of proof is on the employer.46
The trial court’s finding that Completo failed to exercise reasonable care to avoid collision with
Albayda at the intersection of 11th and 8th Streets of VAB gives rise to liability on the part of
Completo, as driver, and his employer Abiad. The responsibility of two or more persons who are liable
for quasi-delict is solidary.47 The civil liability of the employer for the negligent acts of his employee is
also primary and direct, owing to his own negligence in selecting and supervising his employee.48 The
civil liability of the employer attaches even if the employer is not inside the vehicle at the time of the
collision.49
In the selection of prospective employees, employers are required to examine them as to their
qualifications, experience, and service records. On the other hand, with respect to the supervision of
employees, employers should formulate standard operating procedures, monitor their implementation,
and impose disciplinary measures for breaches thereof. To establish these factors in a trial involving
the issue of vicarious liability, employers must submit concrete proof, including documentary
evidence.50
Abiad testified that before he hired Completo, he required the latter to show his bio-data, NBI
clearance, and driver’s license. Abiad likewise stressed that Completo was never involved in a
vehicular accident prior to the instant case, and that, as operator of the taxicab, he would wake up early
to personally check the condition of the vehicle before it is used.
The protestation of Abiad to escape liability is short of the diligence required under the law. Abiad’s
evidence consisted entirely of testimonial evidence, and the unsubstantiated and self-serving testimony
of Abiad was insufficient to overcome the legal presumption that he was negligent in the selection and
supervision of his driver.
II. On Damages
The CA rightfully deleted the award of actual damages by the RTC because Albayda failed to present
documentary evidence to establish with certainty the amount that he incurred during his hospitalization
and treatment for the injuries he suffered. In the absence of stipulation, actual damages are awarded
only for such pecuniary loss suffered that was duly proved.51
While the amount of actual damages was not duly established with certainty, the Court recognizes the
fact that, indeed, Albayda incurred a considerable amount for the necessary and reasonable medical
expenses, loss of salary and wages, loss of capacity to earn increased wages, cost of occupational
therapy, and harm from conditions caused by prolonged immobilization. Temperate damages, more
than nominal but less than compensatory damages, may be recovered when the court finds that some
pecuniary loss has been suffered but its amount cannot, from the nature of the case, be proved with
certainty.52 Temperate damages must be reasonable under the circumstances.53 Thus, the Court finds
the award of One Hundred Thousand Pesos (P100,000.00) as temperate damages reasonable under the
circumstances.
Doubtless, Albayda suffered immeasurable pain because of the incident caused by petitioners’
negligence. The CA explained:
The court vicariously feels the pain the plaintiff [Albayda] suffered a number of times. After he was
bumped by defendants’ cab, he cried in pain. When the doctors bore holes into his left knee, he cried in
pain. When he was tractioned, when he was subjected to an operation after operation he suffered pain.
When he took the witness stand to testify, he walked with crutches, his left knee in bandage, stiff and
unfuctional. Pain was written [on] his face. He does deserve moral damages.54
Moral damages are awarded in quasi-delicts causing physical injuries. The permanent deformity and
the scar left by the wounds suffered by Albayba will forever be a reminder of the pain and suffering
that he had endured and continues to endure because of petitioners’ negligence. Thus, the award of
moral damages in the amount of Five Hundred Thousand Pesos (P500,000.00) is proper.
Finally, an interest rate of six percent (6%) per annum is due on the amount of P100,000.00, as
temperate damages, and P500,000.00, as moral damages, which we have awarded. The 6% per annum
interest rate on the temperate and moral damages shall commence to run from the date of the
promulgation of this Decision. Upon finality of the Decision, an interest rate of twelve percent (12%)
per annum shall be imposed on the amount of the temperate and moral damages until full payment
thereof.55
The award of attorney’s fees is hereby deleted for failure to prove that petitioners acted in bad faith in
refusing to satisfy respondent’s just and valid claim.
WHEREFORE, in view of the foregoing, the Decision dated January 2, 2006 and the Resolution dated
March 30, 2006 of the Court of Appeals in CA-G.R. CV No. 68405 are hereby AFFIRMED with
MODIFICATION, viz.:
(1) The estate of the late Redentor Completo and Elpidio Abiad are solidarily liable to pay
One Hundred Thousand Pesos (P100,000.00), as temperate damages, and Five Hundred
Thousand Pesos (P500,000.00), as moral damages;
(2) The temperate and moral damages hereby awarded shall earn legal interest at the rate of
six percent (6%) per annum from the date of the promulgation of this Decision. Upon finality
of this Decision, an interest rate of twelve percent (12%) per annum shall be imposed on the
amount of the temperate and moral damages until full payment thereof.
Costs against petitioners.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-1719 January 23, 1907
M. H., RAKES, plaintiff-appellee,
vs.
THE ATLANTIC, GULF AND PACIFIC COMPANY, defendant-appellant.
A. D. Gibbs for appellant. F. G. Waite, & Thimas Kepner for appellee.
TRACEY, J.:
This is an action for damages. The plaintiff, one of a gang of eight negro laborers in the employment of
the defendant, was at work transporting iron rails from a barge in the harbor to the company's yard near
the malecon in Manila. Plaintiff claims that but one hand car was used in this work. The defendant has
proved that there were two immediately following one another, upon which were piled lengthwise
seven rails, each weighing 560 pounds, so that the ends of the rails lay upon two crosspieces or sills
secured to the cars, but without side pieces or guards to prevent them from slipping off. According to
the testimony of the plaintiff, the men were either in the rear of the car or at its sides. According to that
defendant, some of them were also in front, hauling by a rope. At a certain spot at or near the water's
edge the track sagged, the tie broke, the car either canted or upset, the rails slid off and caught the
plaintiff, breaking his leg, which was afterwards amputated at about the knee.
This first point for the plaintiff to establish was that the accident happened through the negligence of
the defendant. The detailed description by the defendant's witnesses of the construction and quality of
the track proves that if was up to the general stranded of tramways of that character, the foundation
consisting on land of blocks or crosspieces of wood, by 8 inches thick and from 8 to 10 feet long laid,
on the surface of the ground, upon which at a right angle rested stringers of the same thickness, but
from 24 to 30 feet in length. On the across the stringers the parallel with the blocks were the ties to
which the tracks were fastened. After the road reached the water's edge, the blocks or crosspieces were
replaced with pilling, capped by timbers extending from one side to the other. The tracks were each
about 2 feet wide and the two inside rails of the parallel tracks about 18 inches apart. It was admitted
that there were no side pieces or guards on the car; that where no ends of the rails of the track met each
other and also where the stringers joined, there were no fish plates. the defendant has not effectually
overcome the plaintiff's proof that the joints between the rails were immediately above the joints
between the underlying stringers.
The cause of the sagging of the tracks and the breaking of the tie, which was the immediate occasion of
the accident, is not clear in the evidence, but is found by the trial court and is admitted in the briefs and
in the argument to have been the dislodging of the crosspiece or piling under the stringer by the water
of the bay raised by a recent typhoon. The superintendent of the company attributed it to the giving
way of the block laid in the sand. No effort was made to repair the injury at the time of the occurrence.
According to plaintiffs witnesses, a depression of the track, varying from one half inch to one inch and
a half, was therafter apparent to the eye, and a fellow workman of the plaintiff swears that the day
before the accident he called the attention of McKenna, the foreman, to it and asked by simply
straightening out the crosspiece, resetting the block under the stringer and renewing the tie, but
otherwise leaving the very same timbers as before. It has not proven that the company inspected the
track after the typhoon or had any proper system of inspection.
In order to charge the defendant with negligence, it was necessary to show a breach of duty on its part
in failing either to properly secure the load on iron to vehicles transporting it, or to skillfully build the
tramway or to maintain it in proper condition, or to vigilantly inspect and repair the roadway as soon as
the depression in it became visible. It is upon the failure of the defendant to repair the weakened track,
after notice of its condition, that the judge below based his judgment.
This case presents many important matters for our decision, and first among them is the standard of
duty which we shall establish in our jurisprudence on the part of employees toward employees.
The lack or the harshness of legal rules on this subject has led many countries to enact designed to put
these relations on a fair basis in the form of compensation or liability laws or the institution of
insurance. In the absence of special legislation we find no difficulty in so applying the general
principles of our law as to work out a just result.
Article 1092 of the Civil Code provides:
Civil obligations, arising from crimes or misdemeanors, shall be governed by the provisions of the
Penal Code.
And article 568 of the latter code provides:
He who shall execute through reckless negligence an act that if done with malice would constitute a
grave crime, shall be punished.
And article 590 provides that the following shall be punished:
4. Those who by simple imprudence or negligence, without committing any infraction of regulations,
shall cause an injury which, had malice intervened, would have constituted a crime or misdemeanor.
And finally by articles 19 and 20, the liability of owners and employers for the faults of their servants
and representatives is declared to be civil and subsidiary in its character.
It is contented by the defendant, as its first defense to the action, that the necessary conclusion from
these collated laws is that the remedy for injuries through negligence lies only in a criminal action in
which the official criminally responsible must be made primarily liable and his employer held only
subsidiarily to him. According to this theory the plaintiff should have procured the arrest of the
representative of the company accountable for not repairing the tract, and on his prosecution a suitable
fine should have been imposed, payable primarily by him and secondarily by his employer.
This reasoning misconceived the plan of the Spanish codes upon this subject. Article 1093 of the Civil
Code makes obligations arising from faults or negligence not punished by the law , subject to the
provisions of Chapter 11 of Title XVI. Section 1902 of that chapter reads:
A person who by an act or omission causes damage to another when there is fault or negligence shall
be obliged to repair the damage so done.
SEC. 1903. The obligation imposed by the preceding article is demandable, not only for personal acts
and omissions, but also for those of the persons for whom they should be responsible.
The father, and on his death or incapacity, the mother, is liable for the damages caused by the minors
who live with them.
xxx xxx xxx
Owners or directors of an establishment or enterprise are equally liable for the damages caused by their
employees in the service of the branches in which the latter may be employed or in the performance of
their duties.
xxx xxx xxx
The liability referred to in this article shall cease when the persons mentioned therein prove that they
employed all the diligence of a good father of a family to avoid the damages.
As an answer to the argument urged in this particular action it may be sufficient to point out that
nowhere in our general statutes is the employer penalized for failure to provide or maintain safe
appliances for his workmen. His obligation therefore is one "not punished by the law " and falls under
civil rather than criminal jurisprudence. But the answer may be a broader one. We should be reluctant,
under any conditions, to adopt a forced construction of these scientific codes, such as is proposed by
the defendant, that would rob some of these articles of effect, would shut out litigants their will from
the civil courts, would make the assertion of their rights dependent upon the selection for prosecution
of the proper criminal offender, and render recovery doubtful by reason of the strict rules of proof
prevailing in criminal actions. Even if these articles had always stood alone, such a construction would
be unnecessary, but clear light is thrown upon their meaning by the provisions of the Law of Criminal
Procedure of Spain ( Ley de Enjuiciamiento Criminal ), which, though n ever in actual force in these
Islands, was formerly given a suppletory or explanatory effect. Under article 111 of this law, both
classes of action, civil and criminal, might be prosecuted jointly or separately, but while the penal
action was pending the civil was suspended. According to article 112, the penal action once started, the
civil remedy should be sought therewith, unless it had been waived by the party injured or been
expressly reserved by him for civil proceedings for the future. If the civil action alone was prosecuted,
arising out of a crime that could be enforced by only on private complaint, the penal action thereunder
should be extinguished. These provisions are in harmony with those of articles 23 and 133 of our Penal
Code on the same subject.
An examination of this topic might be carried much further, but the citations of these articles suffices
to show that the civil liability was not intended to be merged in the criminal nor even to be suspended
thereby, except as expressly provided by law. Where an individual is civilly liable for a negligent act
or omission, it is not required that the inured party should seek out a third person criminally liable
whose prosecution must be a condition precedent to the enforcement of the civil right.
Under article 20 of the Penal Code the responsibility of an employer may be regarded as subsidiary in
respect of criminal actions against his employees only while they are process of prosecution, or in so
far as they determinate the existence of the criminal act from which liability arises, and his obligation
under the civil law and its enforcement in the civil courts is not barred thereby unless by election of the
injured person. Inasmuch as no criminal in question, the provisions of the Penal Code can not affect
this action. This construction renders it unnecessary to finally determine here whether this subsidiary
civil liability in penal actions survived the laws that fully regulated it or has been abrogated by the
American civil and criminal procedure now in force in the Philippines.
The difficulty in construing the articles of the code above cited in this case appears from the briefs
before us to have arisen from the interpretation of the words of article 1093, "fault or negligence not
punished by law," as applied to the comprehensive definition of offenses in articles 568 and 590 of the
Penal Code. It has been shown that the liability of an employer arising out of his relation to his
employee who is the offender is not to be regarded as derived from negligence punished by the law,
within the meaning of articles 1092 and 1093. More than this, however, it can not be said to fall within
the class of acts unpunished by the law, the consequences of which are regulated by articles 1902 and
1903 of the Civil Code. The acts to which these articles are applicable are understood to be those and
growing out of preexisting duties of the parties to one another. But were relations already formed give
rise to duties, whether springing from contract or quasi contract, then breaches of those duties are
subject to articles 1101, 1103, and 1104, of the same code. A typical application of the distinction may
be found in the consequences of a railway accident due to defective machinery supplied by the
employer. His liability to his employee would arise out of the contract of employment, that to the
passengers out of the contract for passage. while that to that injured bystander would originate in the
negligent act itself. This distinction is thus clearly set forth by Manresa in his commentary on article
1093.
We are with reference to such obligations, that culpa , or negligence, may be understood in two
difference senses; either as culpa, substantive and independent , which on account of its origin arises in
an obligation between two persons not formerly bound by any other obligation; or as an incident in the
performance of an obligation; or as already existed, which can not be presumed to exist without the
other, and which increases the liability arising from the already exiting obligation.
Of these two species of culpa the first one mentioned, existing by itself, may be also considered as a
real source of an independent obligation, and, as chapter 2, title 16 of this book of the code is devoted
to it, it is logical to presume that the reference contained in article 1093 is limited thereto and that it
does not extend to those provisions relating to the other species of culpa (negligence), the nature of
which we will discuss later. (Vol. 8, p. 29.)
And in his commentary on articles 1102 and 1104 he says that these two species of negligence may be
somewhat inexactly described as contractual and extra-contractual, the letter being the culpa
aquiliana of the Roman law and not entailing so strict an obligation as the former. This terminology is
unreservedly accepted by Sanchez-Roman (Derecho Civil, fourth section, Chapter XI, Article II, No.
12), and the principle stated is supported be decisions of the supreme court of Spain, among them those
of November 20, 1896 (80 Jurisprudencia Civil, No. 151), and June 27, 1894 (75 Jurisprudencia Civil,
No. 182). The contract is one for hire and not one of mandate. (March 10, 1897, 81 Jurisprudencia
Civil, No. 107.)
Spanish Jurisprudencia prior to the adoption of the Working Men's Accident Law of January 30, 1900,
throws uncertain light on the relation between master and workman. Moved by the quick industrial
development of their people, the courts of France early applied to the subject the principles common to
the law of both countries, which are lucidly discussed by the leading French commentators.
The original French theory, resting the responsibility of owners of industrial enterprises upon articles
1382, 1383, and 1384 of the Code Napoleon, corresponding in scope to articles 1902 and 1903 of the
Spanish Code, soon yielded to the principle that the true basis is the contractual obligation of the
employer and employee. (See 18 Dalloz, 196, Title Travail, 331.)
Later the hardships resulting from special exemptions inserted in contracts for employment led to the
discovery of a third basis for liability in an article of he French Code making the possessor of any
object answerable for damage done by it while in his charge. Our law having no counterpart of this
article, applicable to every kind of object, we need consider neither the theory growing out of it nor
that of "professional risk" more recently imposed by express legislation, but rather adopting the
interpretation of our Civil Code above given, find a rule for this case in the contractual obligation. This
contractual obligation, implied from the relation and perhaps so inherent in its nature to be invariable
by the parties, binds the employer to provide safe appliances for the use of the employee, thus closely
corresponding to English and American Law. On these principles it was the duty of the defendant to
build and to maintain its track in reasonably sound condition, so as to protect its workingmen from
unnecessary danger. It is plain that in one respect or the other it failed in its duty, otherwise the
accident could not have occurred; consequently the negligence of the defendant is established.
Another contention of the defense is that the injury resulted to the plaintiff as a risk incident to his
employment and, as such, one assumed by him. It is evident that this can not be the case if the
occurrence was due to the failure to repair the track or to duly inspect, it for the employee is not
presumed to have stipulated that the employer might neglect his legal duty. Nor may it be excused
upon the ground that the negligence leading to the accident was that of a fellow-servant of the injured
man. It is not apparent to us that the intervention of a third person can relieve the defendant from the
performance of its duty nor impose upon the plaintiff the consequences of an act or omission not his
own. Sua cuique culpa nocet . This doctrine, known as "the fellow-servant, rule," we are not disposed
to introduce into our jurisprudence. Adopted in England by Lord Abinger in the case of
Prescott vs. Fowler (3 Meeson & Welsby, 1) in 1837, it has since been effectually abrogated by "the
Employers' Liability Acts" and the "Compensation Law." The American States which applied it appear
to be gradually getting rid of it; for instance, the New York State legislature of 1906 did away with it
in respect to railroad companies, and had in hand a scheme for its total abolition. It has never found
place in the civil law of continental Europe. (Dalloz, vol. 39, 1858, Title Responsibilite, 630, and vol.
15, 1895, same title, 804. Also more recent instances in Fuzier-Herman, Title Responsibilite Civile,
710.)
The French Cour de Cassation clearly laid down the contrary principle in its judgment of June 28,
1841, in the case of Reygasse, and has since adhered to it.
The most controverted question in the case is that of the negligence of the plaintiff, contributing to the
accident, to what extent it existed in fact and what legal effect is to be given it. In two particulars is he
charged with carelessness:
First. That having noticed the depression in the track he continued his work; and
Second. That he walked on the ends of the ties at the side of the car instead of along the boards, either
before or behind it.
As to the first point, the depression in the track night indicate either a serious or a rival difficulty.
There is nothing in the evidence to show that the plaintiff did or could see the displaced timber
underneath the sleeper. The claim that he must have done so is a conclusion drawn from what is
assumed to have been a probable condition of things not before us, rather than a fair inference from the
testimony. While the method of construction may have been known to the men who had helped build
the road, it was otherwise with the plaintiff who had worked at this job less than two days. A man may
easily walk along a railway without perceiving a displacement of the underlying timbers. The foreman
testified that he knew the state of the track on the day of the accident and that it was then in good
condition, and one Danridge, a witness for the defendant, working on the same job, swore that he never
noticed the depression in the track and never saw any bad place in it. The sagging of the track this
plaintiff did perceive, but that was reported in his hearing to the foreman who neither promised nor
refused to repair it. His lack of caution in continuing at his work after noticing the slight depression of
the rail was not of so gross a nature as to constitute negligence, barring his recovery under the severe
American rule. On this point we accept the conclusion of the trial judge who found as facts that "the
plaintiff did not know the cause of the one rail being lower than then other" and "it does not appear in
this case that the plaintiff knew before the accident occurred that the stringers and rails joined in the
same place."
Were we not disposed to agree with these findings they would, nevertheless, be binding upon us,
because not "plainly and manifestly against the weight of evidence," as those words of section 497,
paragraph 3 of the Code of Civil Procedure were interpreted by the Supreme Court of the United States
in the De la Rama case (201 U. S., 303).
In respect of the second charge of negligence against the plaintiff, the judgment below is not so
specific. While the judge remarks that the evidence does not justify the finding that the car was pulled
by means of a rope attached to the front end or to the rails upon it, and further that the circumstances in
evidence make it clear that the persons necessary to operate the car could not walk upon the plank
between the rails and that, therefore, it was necessary for the employees moving it to get hold upon it
as best they could, there is no specific finding upon the instruction given by the defendant to its
employees to walk only upon the planks, nor upon the necessity of the plaintiff putting himself upon
the ties at the side in order to get hold upon the car. Therefore the findings of the judge below leave the
conduct of the plaintiff in walking along the side of the loaded car, upon the open ties, over the
depressed track, free to our inquiry.
While the plaintiff and his witnesses swear that not only were they not forbidden to proceed in this
way, but were expressly directed by the foreman to do so, both the officers of the company and three
of the workmen testify that there was a general prohibition frequently made known to all the gang
against walking by the side of the car, and the foreman swears that he repeated the prohibition before
the starting of this particular load. On this contradiction of proof we think that the preponderance is in
favor of the defendant's contention to the extent of the general order being made known to the
workmen. If so, the disobedience of the plaintiff in placing himself in danger contributed in some
degree to the injury as a proximate, although not as its primary cause. This conclusion presents sharply
the question, What effect is to be given such an act of contributory negligence? Does it defeat a
recovery, according to the American rule, or is it to be taken only in reduction of damages?
While a few of the American States have adopted to a greater or less extent the doctrine of comparative
negligence, allowing a recovery by a plaintiff whose own act contributed to his injury, provided his
negligence was slight as compared with that of the defendant, and some others have accepted the
theory of proportional damages, reducing the award to a plaintiff in proportion to his responsibility for
the accident, yet the overwhelming weight of adjudication establishes the principle in American
jurisprudence that any negligence, however slight, on the part of the person injured which is one of the
causes proximately contributing to his injury, bars his recovery. (English and American Encyclopedia
of law, Titles "Comparative Negligence" and Contributory Negligence.")
In Grant Trunk Railway Company vs. Ives (144 U. S., 408, at page 429) the Supreme Court of the
United States thus authoritatively states the present rule of law:
Although the defendant's' negligence may have been the primary cause of the injury complained of, yet
an action for such injury can not be maintained if the proximate and immediate cause of the injury can
be traced to the want of ordinary care and caution in the person injured; subject to this qualification,
which has grown up in recent years (having been first enunciated in Davies vs. Mann, 10 M. & W.,
546) that the contributory negligence of the party injured will not defeat the action if it be shown that
the defendant might, by the exercise of reasonable care and prudence, have avoided the consequences
of the injured party's negligence.
There are may cases in the supreme court of Spain in which the defendant was exonerated, but when
analyzed they prove to have been decided either upon the point that he was not negligent or that the
negligence of the plaintiff was the immediate cause of the casualty or that the accident was due
to casus fortuitus . Of the first class in the decision of January 26, 1887 (38 Jurisprudencia Criminal ,
No. 70), in which a railway employee, standing on a car, was thrown therefrom and killed by the shock
following the backing up of the engine. It was held that the management of the train and engine being
in conformity with proper rules of the company, showed no fault on its part.
Of the second class are the decision of the 15th of January, the 19th of February, and the 7th of March,
1902, stated in Alcubilla's Index of that year; and of the third class the decision of the 4th of June, 1888
(64 Jurisprudencia Civil , No. 1), in which the breaking down of plaintiff's dam by the logs of the
defendant impelled against it by the Tajo River, was held due to a freshet as a fortuitous cause.
The decision of the 7th of March, 1902, on which stress has been laid, rested on two bases, one, that
the defendant was not negligent, because expressly relieved by royal order from the common
obligation imposed by the police law of maintaining a guard at the road crossing; the other, because the
act of the deceased in driving over level ground with unobstructed view in front of a train running at
speed, with the engine whistle blowing was the determining cause of the accident. It is plain that the
train was doing nothing but what it had a right to do and that the only fault lay with the injured man.
His negligence was not contributory, it was sole, and was of such an efficient nature that without it no
catastrophe could have happened.
On the other hand, there are many cases reported in which it seems plain that the plaintiff sustaining
damages was not free from contributory negligence; for instance, the decision of the 14th of
December, 1894 (76 Jurisprudencia Civil , No. 134), in which the owner of a building was held liable
for not furnishing protection to workmen engaged in hanging out flags, when the latter must have
perceived beforehand the danger attending the work.
None of those cases define the effect to be given the negligence of a plaintiff which contributed to his
injury as one of its causes, though not the principal one, and we are left to seek the theory of the civil
law in the practice of other countries.
In France in the case of Marquant, August 20, 1879, the cour de cassation held that the carelessness of
the victim did not civilly relieve the person without whose fault the accident could not have happened,
but that the contributory negligence of the injured man had the effect only of reducing the damages.
The same principle was applied in the case of Recullet, November 10, 1888. and that of Laugier of the
11th of November, 1896. (Fuzier-Herman, Title Responsibilite Cirile , 411, 412.) Of like tenor are
citations in Dalloz (vol. 18, 1806, Title Trail, 363, 364, and vol. 15, 1895, Title Responsibilite , 193,
198).
In the Canadian Province of Quebee, which has retained for the most part the French Civil Law, now
embodied in a code following the Code Napoleon, a practice in accord with that of France is laid down
in many cases collected in the annotations to article 1053 of the code edited by Beauchamps, 1904.
One of these is Luttrell vs. Trottier, reported in La Revue de Jurisprudence , volume 6, page 90, in
which the court of Kings bench, otherwise known as the court of appeals, the highest authority in the
Dominion of Canada on points of French law, held that contributory negligence did not exonerate the
defendants whose fault had been the immediate cause of the accident, but entitled him to a reduction of
damages. Other similar cases in the provincial courts have been overruled by appellate tribunals made
up of common law judges drawn from other provinces, who have preferred to impose uniformally
throughout the Dominion the English theory of contributory negligence. Such decisions throw no light
upon the doctrines of the civil law. Elsewhere we find this practice embodied in legislation; for
instance, section 2 of article 2398 of the Code of Portugal reads as follows:
If in the case of damage there was fault or negligence on the part of the person injured or in the part of
some one else, the indemnification shall be reduced in the first case, and in the second case it shall be
appropriated in proportion to such fault or negligence as provided in paragraphs 1 and 2 of section
2372.
And in article 1304 of the Austrian Code provides that the victim who is partly changeable with the
accident shall stand his damages in proportion to his fault, but when that proportion is incapable of
ascertainment, he shall share the liability equally with the person principally responsible. The principle
of proportional damages appears to be also adopted in article 51 of the Swiss Code. Even in the United
States in admirality jurisdictions, whose principles are derived from the civil law, common fault in
cases of collision have been disposed of not on the ground of contradictor negligence, but on that of
equal loss, the fault of the one part being offset against that of the other. (Ralli vs. Troop, 157 U. S.
386; 97.)
The damage of both being added together and the sum equally divided, a decree is entered in favor of
the vessel sustaining the greater loss against the other for the excess of her damages over one-half of
the aggregate sum. (The Manitoba, 122 U. S., 97)
Exceptional practice appears to prevail in maritime law in other jurisdictions. The Spanish Code of
Commerce, article 827, makes each vessel for its own damage when both are the fault; this provision
restricted to a single class of the maritime accidents, falls for short of a recognition of the principle of
contributory negligence as understood in American Law, with which, indeed, it has little in common.
This is a plain from other articles of the same code; for instance, article 829, referring to articles 826,
827, and 828, which provides: "In the cases above mentioned the civil action of the owner against the
person liable for the damage is reserved, as well as the criminal liability which may appear."
The rule of the common law, a hard and fast one, not adjustable with respects of the faults of the
parties, appears to have grown out the original method of trial by jury, which rendered difficult a nice
balancing of responsibilities and which demanded an inflexible standard as a safeguard against too
ready symphaty for the injured. It was assumed that an exact measure of several concurring faults was
unattainable.
The reason why, in cases of mutual concurring negligence, neither party can maintain an action against
the other, is, not the wrong of the one is set off against the wrong of the other; it that the law can not
measure how much of the damage suffered is attributable to the plaintiff's own fault. If he were
allowed to recover, it might be that he would obtain from the other party compensation for hiss own
misconduct. (Heil vs. Glanding, 42 Penn. St. Rep., 493, 499.)
The parties being mutually in fault, there can be no appointment of damages. The law has no scales to
determine in such cases whose wrongdoing weighed most in the compound that occasioned the
mischief. (Railroad vs. Norton, 24 Penn. St. 565, 469.)
Experience with jury trials in negligence cases has brought American courts to review to relax the
vigor of the rule by freely exercising the power of setting aside verdicts deemed excessive, through the
device of granting new trials, unless reduced damages are stipulated for, amounting to a partial
revision of damages by the courts. It appears to us that the control by the court of the subject matter
may be secured on a moral logical basis and its judgment adjusted with greater nicety to the merits of
the litigants through the practice of offsetting their respective responsibilities. In the civil law system
the desirable end is not deemed beyond the capacity of its tribunals.
Whatever may prove to be the doctrine finally adopted in Spain or in other countries under the stress
and counter stress of novel schemers of legislation, we find the theory of damages laid down in the
judgment the most consistent with the history and the principals of our law in these Islands and with its
logical development.
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 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 under review was the displacement of the
crosspiece or the failure to replace it. this produced the event giving occasion for damages — that is,
the shinking 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 thorough his act of omission of duty,
the last 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.
Accepting, though with some hesitation, the judgment of the trial court, fixing the damage incurred by
the plaintiff at 5,000 pesos, the equivalent of 2,500 dollars, United States money, we deduct therefrom
2,500 pesos, the amount fairly attributable to his negligence, and direct judgment to be entered in favor
of the plaintiff for the resulting sum of 2,500 pesos, with cost of both instances, and ten days hereafter
let the case be remanded to the court below for proper action. So ordered.
Arellano, C.J. Torres and Mapa, JJ., concur.
Separate Opinions
WILLARD, J., dissenting:
The knowledge which the plaintiff had in regard to the condition of the track is indicated by his own
evidence. He testified, among other things, as follows:
Q. Now, describe the best you can the character of the track that ran from the place where you loaded
the irons from the barge up to the point where you unloaded them on the ground. A. — Well, it was
pretty bad character.
xxx xxx xxx
Q. And you were familiar with the track before that its construction? A. — Familiar with what?
Q. Well, you have described it here to the court. A. — Oh, yes; I knew the condition of the track.
Q. You knew its conditions as you have described it here at the time you were working around there?
A. — Yes, sir.
xxx xxx xxx
Q. And while operating it from the side it was necessary for you to step from board to board on the
cross-ties which extended out over the stringers? — A. Yes, sir.
Q. And these were very of irregular shape, were they not? — A. They were in pretty bad condition.
xxx xxx xxx
Q. And it was not safe to walk along on the outside of these crosspieces? — A. It was safe if the car
stayed on the track. We didn't try to hold the load on. We tried to hold the car back, keep it from going
too fast, because we knew the track was in bad condition just here, and going down too fast we could
be liable to run off most any time.
Q. You knew the track was in bad condition when you got hold? — A. Sure, it was in bad condition.
xxx xxx xxx
Q. And the accident took place at that point where you believed it to be so dangerous? A. — Yes, sir.
Q. But you knew it was dangerous? — A. Why certainly, anybody could see it; but a workingman had
to work in those days or get arrested for a vag here in Manila.
The court below, while it found that the plaintiff knew in a general way of the bad condition of the
track, found that he was not informed of the exact cause of the accident, namely, the washing away of
the large crosspiece laid upon the ground or placed upon the posts as the foundation upon which the
stripers rested. This finding of fact to my mind is plainly and manifestly against the weight of the
evidence. Ellis, a witness for the plaintiff, testified that on the morning of the accident he called the
attention of McKenna, the foreman, to the defective condition of the track at his precise point where
the accident happened. His testimony in part is as follows:
A. I called Mr. McKenna. I showed him the track and told him I didn't think it was safe working, and
that if he didn't fix it he was liable to have an accident; I told him I thought if he put fish plates on it
would it. He said, you keep on fishing around here for fish plates and you will be fishing for another
job the first thing you know." He says, "You see to much."
xxx xxx xxx
Q. Who else was present at the time you had this conversation with Mr. McKenna? A. — Well, at that
conversation as far as I can remember, we were all walking down the track and I know that McCoy and
Mr. Blakes was along at the time. I remember them two, but we were all walking down the track in a
bunch, but I disremember them.
xxx xxx xxx
Q. Was that the exact language that you used, that you wanted some fish plates put on? — A. No, sir: I
told him to look at that track. I says get some fish plates. I says if there was any fish plates we would
fix that.
Q. What did the fish plates have to do with that? A. — It would have strengthened that joint.
Q. Why didn't you put the 8 by 8 which was washed crossways in place? — A. That would have been
taken the raising of the track and digging out along this upright piece and then putting it up again.
The plaintiff himself testified that he was present with Ellis at the time this conversation was had with
McKenna. It thus appears that on the morning in question the plaintiff and McKenna were standing
directly over the place where the accident happened later in the day. The accident was caused, as the
court below found, by the washing away or displacement of the large 8 by 8 piece of timber. This track
was constructed as all other tracks are, all of it open work, with no floor over the ties, and of course see
the ground and the entire construction of the road, including these large 8 by 8 pieces, the long
stringers placed thereon, the ties placed on these stringers, and the rails placed on the ties. The plaintiff
himself must have seen that the 8 by 8 piece of timber was out of place.
If the testimony of the plaintiff's witnesses is to be believed, the displacement was more markedly
apparent even than it would appear from the testimony of the defendant's witnesses. According to the
plaintiff's witnesses, the water at high tide reached the place in question and these 8 by 8 pieces were
therefore not laid upon the ground but were placed upon posts driven into the ground, the height of the
posts at this particular place being, according to the testimony of the plaintiff's witnesses, from a foot
to two feet and a half. As has been said, Ellis testified that the reason why they did not put the 8 by 8
back in its place was because that would have required the raising up of the track and digging out
along this upright piece and then putting it up again.
It conclusively appears from the evidence that the plaintiff, before the accident happened, knew the
exact condition of the track and was informed and knew of the defect which caused the accident. There
was no promise on the part of McKenna to repair the track.
Under the circumstances the plaintiff was negligent in placing himself on the side of the car where he
knew that he would be injured by the falling of the rails from the car when they reached this point in
the track where the two stringers were without any support of their ends. He either should have refused
to work at all or he should have placed himself behind the car, on the other side of it, or in front of it,
drawing it with a rope. He was guilty of contributory negligence and is not entitled to recover.
It is, said however, that contributory negligence on the part of the plaintiff in a case like this is no
defense under the law in force in these Islands. To this proposition I can not agree. The liability of the
defendant is based in the majority opinion upon articles 1101 and 1103 of the Civil Code.
In order to impose such liability upon the defendant, it must appear that its negligence caused the
accident. The reason why contradictory negligence on the part of the plaintiff is a defense in this class
of cases is that the negligence of the defendant did not alone cause the accident. If nothing but that
negligence had existed, the accident would not have happened and, as I understand it, in every case in
which contradictory negligence is a defense it is made so because the negligence of the plaintiff is the
cause of the accident, to this extent, that if the plaintiff had not been negligent the accident would not
have happened, although the defendant was also negligent. In other words, the negligence of the
defendant is not alone sufficient to cause the accident. It requires also the negligence of the plaintiff.
There is, so far as I know, nothing in the Civil Code relating to contributory negligence. The rule of the
Roman law was: " Quod quis ex culap sua damnum sentit, no intelligitur damnum sentire ." (Digest,
book, 50, tit. 17, rule 203.)
The partidas contain the following provisions:
The just thing is that a man should suffer the damage which comes to him through his own fault, and
that he can not demand reparation therefor from another. (Law 25, tit. 5,partida 3.)
And they even said that when a man received an injury through his own acts, the grievance should be
against himself and not against another. (Law 2, tit. 7, partida 2.)
In several cases in the supreme court of Spain the fact has been negligence that the plaintiff was
himself guilty of negligence, as in the civil judgments of the 4th of June, 1888, and of the 20th of
February, 1887, and in the criminal judgments of the 20th of February 1888, the 90th of March, 1876,
and the 6th of October, 1882. These cases do not throw much light upon the subject. The judgment of
the 7th of March, 1902 (93 Jurisprudencia Civil , 391), is, however, directly in point. In that case the
supreme court of Spain said:
According to the doctrine expressed in article 1902 of the Civil Code, fault or negligence is a source of
obligation when between such negligence and the injury thereby caused there exists the relation of
cause and effect; but in the injury caused should not be the result of acts or omissions of a third party,
the latter has no obligation to repair the same, even though such acts or omissions were imprudent or
unlawful, and much less when it is shown that the immediate cause of the injury was the negligence of
the injured person party himself.
Found the reasons above stated, and the court below having found that the death of the deceased was
due to his own imprudence, and not therefore due to the absence of a guard at the grade crossing where
the accident occurred, it seems clear that court in acquitting the railroad company of the complaint
filed by the widow did not violate the provisions of the aforesaid article of the Civil Code.
For the same reason, although the authority granted to the railroad company to open the grade crossing
without a special guard was nullified by the subsequent promulgation of the railroad police law and the
regulations for the execution of the same, the result would be identical, leaving one of the grounds
upon which the judgment of acquittal is based, to wit, that the accident was caused by the imprudence
of the injured party himself, unaffected.
It appears that the accident in this case took place at a grade crossing where, according to the claim of
the plaintiff, it was the duty of the railroad company to maintain husband was injured by a train at this
crossing, his negligence contributing to the injury according to the ruling of the court below. This
judgment, then, amounts to a holding that a contributory negligence is a defense according to the law
of Spain. (See also judgment of the 21st of October, 1903, vol. 96 p. 400, Jurisprudencia Civil .)
Although in the Civil Code there is no express provision upon the subject, in the Code of Commerce
there is found a distinct declaration upon it in reference to damages caused by collission at sea. Article
827 of the Code of Commerce is as follows:
If both vessels may be blamed for the collission, each one shall for liable for his own damages, and
both shall jointly responsible for the loss and damages suffered to their cargoes.
That article is an express recognition of the fact that in collision cases contributory negligence is a
defense,
I do not think that this court is justified in view of the Roman law, of the provisions of the Partidas , of
the judgment of March 7, 1902, of article 827 of the Code of Commerce, and in the absence of any
declaration upon the subject in the Civil Code, in saying that it was the intention rule announced in the
majority opinion, a rule dimetrically opposed to that put in force by the Code of Commerce.
The chief, is not the only, reason stated in the opinion for adopting the rule that contradictory
negligence is not a defense seems to be that such is the holding of the later French decisions.
As to whether, if any liability existed in this case, it would be necessary in accordance with the
provisions of the Penal Code, or primary, in accordance with the provision of the Civil Code, I express
no opinion.
The judgment should, I think, be reversed and the defendant acquitted of the complaint.
Carson, J., concurs.
[#]
Separate Opinions
WILLARD, J., dissenting:
The knowledge which the plaintiff had in regard to the condition of the track is indicated by his own
evidence. He testified, among other things, as follows:
Q. Now, describe the best you can the character of the track that ran from the place where you loaded
the irons from the barge up to the point where you unloaded them on the ground. A. — Well, it was
pretty bad character.
xxx xxx xxx
Q. And you were familiar with the track before that its construction? A. — Familiar with what?
Q. Well, you have described it here to the court. A. — Oh, yes; I knew the condition of the track.
Q. You knew its conditions as you have described it here at the time you were working around there?
A. — Yes, sir.
xxx xxx xxx
Q. And while operating it from the side it was necessary for you to step from board to board on the
cross-ties which extended out over the stringers? — A. Yes, sir.
Q. And these were very of irregular shape, were they not? — A. They were in pretty bad condition.
xxx xxx xxx
Q. And it was not safe to walk along on the outside of these crosspieces? — A. It was safe if the car
stayed on the track. We didn't try to hold the load on. We tried to hold the car back, keep it from going
too fast, because we knew the track was in bad condition just here, and going down too fast we could
be liable to run off most any time.
Q. You knew the track was in bad condition when you got hold? — A. Sure, it was in bad condition.
xxx xxx xxx
Q. And the accident took place at that point where you believed it to be so dangerous? A. — Yes, sir.
Q. But you knew it was dangerous? — A. Why certainly, anybody could see it; but a workingman had
to work in those days or get arrested for a vag here in Manila.
The court below, while it found that the plaintiff knew in a general way of the bad condition of the
track, found that he was not informed of the exact cause of the accident, namely, the washing away of
the large crosspiece laid upon the ground or placed upon the posts as the foundation upon which the
stripers rested. This finding of fact to my mind is plainly and manifestly against the weight of the
evidence. Ellis, a witness for the plaintiff, testified that on the morning of the accident he called the
attention of McKenna, the foreman, to the defective condition of the track at his precise point where
the accident happened. His testimony in part is as follows:
A. I called Mr. McKenna. I showed him the track and told him I didn't think it was safe working, and
that if he didn't fix it he was liable to have an accident; I told him I thought if he put fish plates on it
would it. He said, you keep on fishing around here for fish plates and you will be fishing for another
job the first thing you know." He says, "You see to much."
xxx xxx xxx
Q. Who else was present at the time you had this conversation with Mr. McKenna? A. — Well, at that
conversation as far as I can remember, we were all walking down the track and I know that McCoy and
Mr. Blakes was along at the time. I remember them two, but we were all walking down the track in a
bunch, but I disremember them.
xxx xxx xxx
Q. Was that the exact language that you used, that you wanted some fish plates put on? — A. No, sir: I
told him to look at that track. I says get some fish plates. I says if there was any fish plates we would
fix that.
Q. What did the fish plates have to do with that? A. — It would have strengthened that joint.
Q. Why didn't you put the 8 by 8 which was washed crossways in place? — A. That would have been
taken the raising of the track and digging out along this upright piece and then putting it up again.
The plaintiff himself testified that he was present with Ellis at the time this conversation was had with
McKenna. It thus appears that on the morning in question the plaintiff and McKenna were standing
directly over the place where the accident happened later in the day. The accident was caused, as the
court below found, by the washing away or displacement of the large 8 by 8 piece of timber. This track
was constructed as all other tracks are, all of it open work, with no floor over the ties, and of course see
the ground and the entire construction of the road, including these large 8 by 8 pieces, the long
stringers placed thereon, the ties placed on these stringers, and the rails placed on the ties. The plaintiff
himself must have seen that the 8 by 8 piece of timber was out of place.
If the testimony of the plaintiff's witnesses is to be believed, the displacement was more markedly
apparent even than it would appear from the testimony of the defendant's witnesses. According to the
plaintiff's witnesses, the water at high tide reached the place in question and these 8 by 8 pieces were
therefore not laid upon the ground but were placed upon posts driven into the ground, the height of the
posts at this particular place being, according to the testimony of the plaintiff's witnesses, from a foot
to two feet and a half. As has been said, Ellis testified that the reason why they did not put the 8 by 8
back in its place was because that would have required the raising up of the track and digging out
along this upright piece and then putting it up again.
It conclusively appears from the evidence that the plaintiff, before the accident happened, knew the
exact condition of the track and was informed and knew of the defect which caused the accident. There
was no promise on the part of McKenna to repair the track.
Under the circumstances the plaintiff was negligent in placing himself on the side of the car where he
knew that he would be injured by the falling of the rails from the car when they reached this point in
the track where the two stringers were without any support of their ends. He either should have refused
to work at all or he should have placed himself behind the car, on the other side of it, or in front of it,
drawing it with a rope. He was guilty of contributory negligence and is not entitled to recover.
It is, said however, that contributory negligence on the part of the plaintiff in a case like this is no
defense under the law in force in these Islands. To this proposition I can not agree. The liability of the
defendant is based in the majority opinion upon articles 1101 and 1103 of the Civil Code.
In order to impose such liability upon the defendant, it must appear that its negligence caused the
accident. The reason why contradictory negligence on the part of the plaintiff is a defense in this class
of cases is that the negligence of the defendant did not alone cause the accident. If nothing but that
negligence had existed, the accident would not have happened and, as I understand it, in every case in
which contradictory negligence is a defense it is made so because the negligence of the plaintiff is the
cause of the accident, to this extent, that if the plaintiff had not been negligent the accident would not
have happened, although the defendant was also negligent. In other words, the negligence of the
defendant is not alone sufficient to cause the accident. It requires also the negligence of the plaintiff.
There is, so far as I know, nothing in the Civil Code relating to contributory negligence. The rule of the
Roman law was: " Quod quis ex culap sua damnum sentit, no intelligitur damnum sentire ." (Digest,
book, 50, tit. 17, rule 203.)
The partidas contain the following provisions:
The just thing is that a man should suffer the damage which comes to him through his own fault, and
that he can not demand reparation therefor from another. (Law 25, tit. 5,partida 3.)
And they even said that when a man received an injury through his own acts, the grievance should be
against himself and not against another. (Law 2, tit. 7, partida 2.)
In several cases in the supreme court of Spain the fact has been negligence that the plaintiff was
himself guilty of negligence, as in the civil judgments of the 4th of June, 1888, and of the 20th of
February, 1887, and in the criminal judgments of the 20th of February 1888, the 90th of March, 1876,
and the 6th of October, 1882. These cases do not throw much light upon the subject. The judgment of
the 7th of March, 1902 (93 Jurisprudencia Civil , 391), is, however, directly in point. In that case the
supreme court of Spain said:
According to the doctrine expressed in article 1902 of the Civil Code, fault or negligence is a source of
obligation when between such negligence and the injury thereby caused there exists the relation of
cause and effect; but in the injury caused should not be the result of acts or omissions of a third party,
the latter has no obligation to repair the same, even though such acts or omissions were imprudent or
unlawful, and much less when it is shown that the immediate cause of the injury was the negligence of
the injured person party himself.
Found the reasons above stated, and the court below having found that the death of the deceased was
due to his own imprudence, and not therefore due to the absence of a guard at the grade crossing where
the accident occurred, it seems clear that court in acquitting the railroad company of the complaint
filed by the widow did not violate the provisions of the aforesaid article of the Civil Code.
For the same reason, although the authority granted to the railroad company to open the grade crossing
without a special guard was nullified by the subsequent promulgation of the railroad police law and the
regulations for the execution of the same, the result would be identical, leaving one of the grounds
upon which the judgment of acquittal is based, to wit, that the accident was caused by the imprudence
of the injured party himself, unaffected.
It appears that the accident in this case took place at a grade crossing where, according to the claim of
the plaintiff, it was the duty of the railroad company to maintain husband was injured by a train at this
crossing, his negligence contributing to the injury according to the ruling of the court below. This
judgment, then, amounts to a holding that a contributory negligence is a defense according to the law
of Spain. (See also judgment of the 21st of October, 1903, vol. 96 p. 400, Jurisprudencia Civil .)
Although in the Civil Code there is no express provision upon the subject, in the Code of Commerce
there is found a distinct declaration upon it in reference to damages caused by collission at sea. Article
827 of the Code of Commerce is as follows:
If both vessels may be blamed for the collission, each one shall for liable for his own damages, and
both shall jointly responsible for the loss and damages suffered to their cargoes.
That article is an express recognition of the fact that in collision cases contributory negligence is a
defense,
I do not think that this court is justified in view of the Roman law, of the provisions of the Partidas , of
the judgment of March 7, 1902, of article 827 of the Code of Commerce, and in the absence of any
declaration upon the subject in the Civil Code, in saying that it was the intention rule announced in the
majority opinion, a rule dimetrically opposed to that put in force by the Code of Commerce.
The chief, is not the only, reason stated in the opinion for adopting the rule that contradictory
negligence is not a defense seems to be that such is the holding of the later French decisions.
As to whether, if any liability existed in this case, it would be necessary in accordance with the
provisions of the Penal Code, or primary, in accordance with the provision of the Civil Code, I express
no opinion.
The judgment should, I think, be reversed and the defendant acquitted of the complaint.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-9356 February 18, 1915
C. S. GILCHRIST, plaintiff-appellee,
vs.
E. A. CUDDY, ET AL., defendants. JOSE FERNANDEZ ESPEJO and MARIANO
ZALDARRIAGA, appellants.
C. Lozano for appellants. Bruce, Lawrence, Ross and Block for appellee.
TRENT, J.:
An appeal by the defendants, Jose Fernandez Espejo and Mariano Zaldarriaga, from a judgment of the
Court of First Instance of Iloilo, dismissing their cross-complaint upon the merits for damages against
the plaintiff for the alleged wrongful issuance of a mandatory and a preliminary injunction.
Upon the application of the appellee an ex parte mandatory injunction was issued on the 22d of May,
1913, directing the defendant, E. A. Cuddy, to send to the appellee a certain cinematograph film called
"Zigomar" in compliance with an alleged contract which had been entered into between these two
parties, and at the time an ex parte preliminary injunction was issued restraining the appellants from
receiving and exhibiting in their theater the Zigomar until further orders of the court. On the 26th of
that month the appellants appeared and moved the court to dissolve the preliminary injunction. When
the case was called for trial on August 6, the appellee moved for the dismissal of the complaint "for the
reason that there is no further necessity for the maintenance of the injunction." The motion was granted
without objection as to Cuddy and denied as to the appellants in order to give them an opportunity to
prove that the injunction were wrongfully issued and the amount of damages suffered by reason
thereof.
The pertinent part of the trial court's findings of fact in this case is as follows:
It appears in this case that Cuddy was the owner of the film Zigomar and that on the 24th of April he
rented it to C. S. Gilchrist for a week for P125, and it was to be delivered on the 26th of May, the week
beginning that day. A few days prior to this Cuddy sent the money back to Gilchrist, which he had
forwarded to him in Manila, saying that he had made other arrangements with his film. The other
arrangements was the rental to these defendants Espejo and his partner for P350 for the week and the
injunction was asked by Gilchrist against these parties from showing it for the week beginning the 26th
of May.
It appears from the testimony in this case, conclusively, that Cuddy willfully violated his contract, he
being the owner of the picture, with Gilchrist because the defendants had offered him more for the
same period. Mr. Espejo at the trial on the permanent injunction on the 26th of May admitted that he
knew that Cuddy was the owner of the film. He was trying to get it through his agents Pathe Brothers
in Manila. He is the agent of the same concern in Iloilo. There is in evidence in this case on the trial
today as well as on the 26th of May, letters showing that the Pathe Brothers in Manila advised this man
on two different occasions not to contend for this film Zigomar because the rental price was prohibitive
and assured him also that he could not get the film for about six weeks . The last of these letters was
written on the 26th of April, which showed conclusively that he knew they had to get this film from
Cuddy and from this letter that the agent in Manila could not get it, but he made Cuddy an offer
himself and Cuddy accepted it because he was paying about three times as much as he had contracted
with Gilchrist for. Therefore, in the opinion of this court, the defendants failed signally to show the
injunction against the defendant was wrongfully procured.
The appellants duly excepted to the order of the court denying their motion for new trial on the ground
that the evidence was insufficient to justify the decision rendered. There is lacking from the record
before us the deposition of the defendant Cuddy, which apparently throws light upon a contract entered
into between him and the plaintiff Gilchrist. The contents of this deposition are discussed at length in
the brief of the appellants and an endeavor is made to show that no such contract was entered into. The
trial court, which had this deposition before it, found that there was a contract between Cuddy and
Gilchrist. Not having the deposition in question before us, it is impossible to say how strongly it
militates against this findings of fact. By a series of decisions we have construed section 143 and 497
(2) of the Code of Civil Procedure to require the production of all the evidence in this court. This is the
duty of the appellant and, upon his failure to perform it, we decline to proceed with a review of the
evidence. In such cases we rely entirely upon the pleadings and the findings of fact of the trial court
and examine only such assigned errors as raise questions of law. (Ferrer vs. Neri Abejuela, 9 Phil.
Rep., 324; Valle vs.Galera, 10 Phil. Rep., 619; Salvacion vs. Salvacion, 13 Phil. Rep., 366;
Breta vs. Smith, Bell & Co., 15 Phil. Rep., 446; Arroyo vs. Yulo, 18 Phil. Rep., 236; Olsen &
Co. vs.Matson, Lord & Belser Co., 19 Phil. Rep., 102; Blum vs. Barretto, 19 Phil. Rep., 161;
Cuyugan vs. Aguas, 19 Phil. Rep., 379; Mapa vs. Chaves, 20 Phil. Rep., 147; Mans vs.Garry, 20 Phil.
Rep., 134.) It is true that some of the more recent of these cases make exceptions to the general rule.
Thus, in Olsen & Co. vs. Matson, Lord & Belser Co., (19 Phil. Rep., 102), that portion of the evidence
before us tended to show that grave injustice might result from a strict reliance upon the findings of
fact contained in the judgment appealed from. We, therefore, gave the appellant an opportunity to
explain the omission. But we required that such explanation must show a satisfactory reason for the
omission, and that the missing portion of the evidence must be submitted within sixty days or cause
shown for failing to do so. The other cases making exceptions to the rule are based upon peculiar
circumstances which will seldom arise in practice and need not here be set forth, for the reason that
they are wholly inapplicable to the present case. The appellants would be entitled to indulgence only
under the doctrine of the Olsen case. But from that portion of the record before us, we are not inclined
to believe that the missing deposition would be sufficient to justify us in reversing the findings of fact
of the trial court that the contract in question had been made. There is in the record not only the
positive and detailed testimony of Gilchrist to this effect, but there is also a letter of apology from
Cuddy to Gilchrist in which the former enters into a lengthy explanation of his reasons for leasing the
film to another party. The latter could only have been called forth by a broken contract with Gilchrist
to lease the film to him. We, therefore, fail to find any reason for overlooking the omission of the
defendants to bring up the missing portion of the evidence and, adhering to the general rule above
referred to, proceed to examine the questions of law raised by the appellants.
From the above-quoted findings of fact it is clear that Cuddy, a resident of Manila, was the owner of
the "Zigomar;" that Gilchrist was the owner of a cinematograph theater in Iloilo; that in accordance
with the terms of the contract entered into between Cuddy and Gilchrist the former leased to the latter
the "Zigomar" for exhibition in his (Gilchrist's) theater for the week beginning May 26, 1913; and that
Cuddy willfully violate his contract in order that he might accept the appellant's offer of P350 for the
film for the same period. Did the appellants know that they were inducing Cuddy to violate his contract
with a third party when they induced him to accept the P350? Espejo admitted that he knew that Cuddy
was the owner of the film. He received a letter from his agents in Manila dated April 26, assuring him
that he could not get the film for about six weeks . The arrangement between Cuddy and the appellants
for the exhibition of the film by the latter on the 26th of May were perfected after April 26, so that the
six weeks would include and extend beyond May 26. The appellants must necessarily have known at
the time they made their offer to Cuddy that the latter had booked or contracted the film for six weeks
from April 26. Therefore, the inevitable conclusion is that the appellants knowingly induced Cuddy to
violate his contract with another person. But there is no specific finding that the appellants knew the
identity of the other party. So we must assume that they did not know that Gilchrist was the person
who had contracted for the film.
The appellants take the position that if the preliminary injunction had not been issued against them
they could have exhibited the film in their theater for a number of days beginning May 26, and could
have also subleased it to other theater owners in the nearby towns and, by so doing, could have cleared,
during the life of their contract with Cuddy, the amount claimed as damages. Taking this view of the
case, it will be unnecessary for us to inquire whether the mandatory injunction against Cuddy was
properly issued or not. No question is raised with reference to the issuance of that injunction.
The right on the part of Gilchrist to enter into a contract with Cuddy for the lease of the film must be
fully recognized and admitted by all. That Cuddy was liable in an action for damages for the breach of
that contract, there can be no doubt. Were the appellants likewise liable for interfering with the
contract between Gilchrist and Cuddy, they not knowing at the time the identity of one of the
contracting parties? The appellants claim that they had a right to do what they did. The ground upon
which the appellants base this contention is, that there was no valid and binding contract between
Cuddy and Gilchrist and that, therefore, they had a right to compete with Gilchrist for the lease of the
film, the right to compete being a justification for their acts. If there had been no contract between
Cuddy and Gilchrist this defense would be tenable, but the mere right to compete could not justify the
appellants in intentionally inducing Cuddy to take away the appellee's contractual rights.
Chief Justice Wells in Walker vs. Cronin (107 Mass., 555), said: "Everyone has a right to enjoy the
fruits and advantages of his own enterprise, industry, skill and credit. He has no right to be free from
malicious and wanton interference, disturbance or annoyance. If disturbance or loss come as a result of
competition, or the exercise of like rights by others, it is damnum absque injuria , unless some superior
right by contract or otherwise is interfered with."
In Read vs. Friendly Society of Operative Stonemasons ([1902] 2 K. B., 88), Darling, J., said: "I think
the plaintiff has a cause of action against the defendants, unless the court is satisfied that, when they
interfered with the contractual rights of plaintiff, the defendants had a sufficient justification for their
interference; . . . for it is not a justification that `they acted bona fide in the best interests of the society
of masons,' i. e., in their own interests. Nor is it enough that `they were not actuated by improper
motives.' I think their sufficient justification for interference with plaintiff's right must be an equal or
superior right in themselves, and that no one can legally excuse himself to a man, of whose contract he
has procured the breach, on the ground that he acted on a wrong understanding of his own rights, or
without malice, or bona fide , or in the best interests of himself, or even that he acted as an altruist,
seeking only good of another and careless of his own advantage." (Quoted with approval in
Beekman vs. Marsters, 195 Mass., 205.)
It is said that the ground on which the liability of a third party for interfering with a contract between
others rests, is that the interference was malicious. The contrary view, however, is taken by the
Supreme Court of the United States in the case of Angle vs. Railway Co. (151 U. S., 1). The only
motive for interference by the third party in that case was the desire to make a profit to the injury of
one of the parties of the contract. There was no malice in the case beyond the desire to make an
unlawful gain to the detriment of one of the contracting parties.
In the case at bar the only motive for the interference with the Gilchrist — Cuddy contract on the part
of the appellants was a desire to make a profit by exhibiting the film in their theater. There was no
malice beyond this desire; but this fact does not relieve them of the legal liability for interfering with
that contract and causing its breach. It is, therefore, clear, under the above authorities, that they were
liable to Gilchrist for the damages caused by their acts, unless they are relieved from such liability by
reason of the fact that they did not know at the time the identity of the original lessee (Gilchrist) of the
film.
The liability of the appellants arises from unlawful acts and not from contractual obligations, as they
were under no such obligations to induce Cuddy to violate his contract with Gilchrist. So that if the
action of Gilchrist had been one for damages, it would be governed by chapter 2, title 16, book 4 of the
Civil Code. Article 1902 of that code provides that a person who, by act or omission, causes damages
to another when there is fault or negligence, shall be obliged to repair the damage do done. There is
nothing in this article which requires as a condition precedent to the liability of a tort-feasor that he
must know the identity of a person to whom he causes damages. In fact, the chapter wherein this article
is found clearly shows that no such knowledge is required in order that the injured party may recover
for the damage suffered.
But the fact that the appellants' interference with the Gilchrist contract was actionable did not of itself
entitle Gilchrist to sue out an injunction against them. The allowance of this remedy must be justified
under section 164 of the Code of Civil Procedure, which specifies the circumstance under which an
injunction may issue. Upon the general doctrine of injunction we said in Devesa vs. Arbes (13 Phil.
Rep., 273):
An injunction is a "special remedy" adopted in that code (Act No. 190) from American practice, and
originally borrowed from English legal procedure, which was there issued by the authority and under
the seal of a court of equity, and limited, as in order cases where equitable relief is sought, to cases
where there is no "plain, adequate, and complete remedy at law," which "will not be granted while the
rights between the parties are undetermined, except in extraordinary cases where material and
irreparable injury will be done," which cannot be compensated in damages , and where there will be no
adequate remedy, and which will not, as a rule, be granted, to take property out of the possession of
one party and put it into that of another whose title has not been established by law.
We subsequently affirmed the doctrine of the Devesa case in Palafox vs. Madamba (19 Phil., Rep.,
444), and we take this occasion of again affirming it, believing, as we do, that the indiscriminate use of
injunctions should be discouraged.
Does the fact that the appellants did not know at the time the identity of the original lessee of the film
militate against Gilchrist's right to a preliminary injunction, although the appellant's incurred civil
liability for damages for such interference? In the examination of the adjudicated cases, where in
injunctions have been issued to restrain wrongful interference with contracts by strangers to such
contracts, we have been unable to find any case where this precise question was involved, as in all of
those cases which we have examined, the identity of both of the contracting parties was known to the
tort-feasors. We might say, however, that this fact does not seem to have a controlling feature in those
cases. There is nothing in section 164 of the Code of Civil Procedure which indicates, even remotely,
that before an injunction may issue restraining the wrongful interference with contrast by strangers, the
strangers must know the identity of both parties. It would seem that this is not essential, as injunctions
frequently issue against municipal corporations, public service corporations, public officers, and others
to restrain the commission of acts which would tend to injuriously affect the rights of person whose
identity the respondents could not possibly have known beforehand. This court has held that in a
proper case injunction will issue at the instance of a private citizen to restrain ultra vires acts of public
officials. (Severino vs. Governor-General, 16 Phil. Rep., 366.) So we proceed to the determination of
the main question of whether or not the preliminary injunction ought to have been issued in this case.
As a rule, injunctions are denied to those who have an adequate remedy at law. Where the choice is
between the ordinary and the extraordinary processes of law, and the former are sufficient, the rule will
not permit the use of the latter. ( In re Debs, 158 U. S., 564.) If the injury is irreparable, the ordinary
process is inadequate. In Wahle vs. Reinbach (76 Ill., 322), the supreme court of Illinois approved a
definition of the term "irreparable injury" in the following language: "By `irreparable injury' is not
meant such injury as is beyond the possibility of repair, or beyond possible compensation in damages,
nor necessarily great injury or great damage, but that species of injury, whether great or small, that
ought not to be submitted to on the one hand or inflicted on the other; and, because it is so large on the
one hand, or so small on the other, is of such constant and frequent recurrence that no fair or
reasonable redress can be had therefor in a court of law." (Quoted with approval in Nashville R. R.
Co. vs. McConnell, 82 Fed., 65.)
The case at bar is somewhat novel, as the only contract which was broken was that between Cuddy and
Gilchrist, and the profits of the appellee depended upon the patronage of the public, for which it is
conceded the appellants were at liberty to complete by all fair does not deter the application of
remarked in the case of the "ticket scalpers" (82 Fed., 65), the novelty of the facts does not deter the
application of equitable principles. This court takes judicial notice of the general character of a
cinematograph or motion-picture theater. It is a quite modern form of the play house, wherein, by
means of an apparatus known as a cinematograph or cinematograph, a series of views representing
closely successive phases of a moving object, are exhibited in rapid sequence, giving a picture which,
owing to the persistence of vision, appears to the observer to be in continuous motion. (The
Encyclopedia Britanica, vol. 6, p. 374.) The subjects which have lent themselves to the art of the
photographer in this manner have increased enormously in recent years, as well as have the places
where such exhibition are given. The attendance, and, consequently, the receipts, at one of these
cinematograph or motion-picture theaters depends in no small degree upon the excellence of the
photographs, and it is quite common for the proprietor of the theater to secure an especially attractive
exhibit as his "feature film" and advertise it as such in order to attract the public. This feature film is
depended upon to secure a larger attendance that if its place on the program were filled by other films
of mediocre quality. It is evident that the failure to exhibit the feature film will reduce the receipts of
the theater.
Hence, Gilchrist was facing the immediate prospect of diminished profits by reason of the fact that the
appellants had induced Cuddy to rent to them the film Gilchrist had counted upon as his feature film. It
is quite apparent that to estimate with any decree of accuracy the damages which Gilchrist would likely
suffer from such an event would be quite difficult if not impossible. If he allowed the appellants to
exhibit the film in Iloilo, it would be useless for him to exhibit it again, as the desire of the public to
witness the production would have been already satisfied. In this extremity, the appellee applied for
and was granted, as we have indicated, a mandatory injunction against Cuddy requiring him to deliver
the Zigomar to Gilchrist, and a preliminary injunction against the appellants restraining them from
exhibiting that film in their theater during the weeks he (Gilchrist) had a right to exhibit it. These
injunction saved the plaintiff harmless from damages due to the unwarranted interference of the
defendants, as well as the difficult task which would have been set for the court of estimating them in
case the appellants had been allowed to carry out their illegal plans. As to whether or not the
mandatory injunction should have been issued, we are not, as we have said, called upon to determine.
So far as the preliminary injunction issued against the appellants is concerned, which prohibited them
from exhibiting the Zigomar during the week which Gilchrist desired to exhibit it, we are of the
opinion that the circumstances justified the issuance of that injunction in the discretion of the court.
We are not lacking in authority to support our conclusion that the court was justified in issuing the
preliminary injunction against the appellants. Upon the precise question as to whether injunction will
issue to restrain wrongful interference with contracts by strangers to such contracts, it may be said that
courts in the United States have usually granted such relief where the profits of the injured person are
derived from his contractual relations with a large and indefinite number of individuals, thus reducing
him to the necessity of proving in an action against the tort-feasor that the latter was responsible in
each case for the broken contract, or else obliging him to institute individual suits against each
contracting party and so exposing him to a multiplicity of suits. Sperry & Hutchinson
Co. vs. Mechanics' Clothing Co. (128 Fed., 800); Sperry & Hutchinson Co. vs. Louis Weber & Co.
(161 Fed., 219); Sperry & Hutchinson Co. vs. Pommer (199 Fed., 309); were all cases wherein the
respondents were inducing retail merchants to break their contracts with the company for the sale of
the latters' trading stamps. Injunction issued in each case restraining the respondents from interfering
with such contracts.
In the case of the Nashville R. R. Co. vs. McConnell (82 Fed., 65), the court, among other things, said:
"One who wrongfully interferes in a contract between others, and, for the purpose of gain to himself
induces one of the parties to break it, is liable to the party injured thereby; and his continued
interference may be ground for an injunction where the injuries resulting will be irreparable."
In Hamby & Toomer vs. Georgia Iron & Coal Co. (127 Ga., 792), it appears that the respondents were
interfering in a contract for prison labor, and the result would be, if they were successful, the shutting
down of the petitioner's plant for an indefinite time. The court held that although there was no
contention that the respondents were insolvent, the trial court did not abuse its discretion in granting a
preliminary injunction against the respondents.
In Beekman vs. Marsters (195 Mass., 205), the plaintiff had obtained from the Jamestown Hotel
Corporation, conducting a hotel within the grounds of the Jamestown Exposition, a contract whereby
he was made their exclusive agent for the New England States to solicit patronage for the hotel. The
defendant induced the hotel corporation to break their contract with the plaintiff in order to allow him
to act also as their agent in the New England States. The court held that an action for damages would
not have afforded the plaintiff adequate relief, and that an injunction was proper compelling the
defendant to desist from further interference with the plaintiff's exclusive contract with the hotel
company.
In Citizens' Light, Heat & Power Co. vs. Montgomery Light & Water Power Co. (171 Fed., 553), the
court, while admitting that there are some authorities to the contrary, held that the current authority in
the United States and England is that:
The violation of a legal right committed knowingly is a cause of action, and that it is a violation of a
legal right to interfere with contractual relations recognized by law, if there be no sufficient
justification for the interference. (Quinn vs. Leatham, supra , 510; Angle vs. Chicago, etc., Ry. Co.,
151 U. S., 1; 14 Sup. Ct., 240; 38 L. Ed., 55; Martens vs. Reilly, 109 Wis., 464, 84 N. W., 840;
Rice vs. Manley, 66 N. Y., 82; 23 Am. Rep., 30; Bitterman vs. L. & N. R. R. Co., 207 U. S., 205; 28
Sup. Ct., 91; 52 L. Ed., 171; Beekman vs.Marsters, 195 Mass., 205; 80 N. E., 817; 11 L. R. A. [N. S.]
201; 122 Am. St. Rep., 232; South Wales Miners' Fed. vs. Glamorgan Coal Co., Appeal Cases, 1905,
p. 239.)
See also Nims on Unfair Business Competition, pp. 351- 371.
In 3 Elliot on Contracts, section 2511, it is said: "Injunction is the proper remedy to prevent a wrongful
interference with contract by strangers to such contracts where the legal remedy is insufficient and the
resulting injury is irreparable. And where there is a malicious interference with lawful and valid
contracts a permanent injunction will ordinarily issue without proof of express malice. So, an
injunction may be issued where the complainant to break their contracts with him by agreeing to
indemnify who breaks his contracts of employment may be adjoined from including other employees
to break their contracts and enter into new contracts with a new employer of the servant who first
broke his contract. But the remedy by injunction cannot be used to restrain a legitimate competition,
though such competition would involve the violation of a contract. Nor will equity ordinarily enjoin
employees who have quit the service of their employer from attempting by proper argument to
persuade others from taking their places so long as they do not resort to force or intimidations on
obstruct the public thoroughfares."
Beekman vs. Marster, supra , is practically on all fours with the case at bar in that there was only one
contract in question and the profits of the injured person depended upon the patronage of the public.
Hamby & Toomer vs. Georgia Iron & Coal Co., supra , is also similar to the case at bar in that there
was only one contract, the interference of which was stopped by injunction.
For the foregoing reasons the judgment is affirmed, with costs, against the appellants.
Arellano, C.J., Torres, Carson and Araullo, JJ., concur.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-7760 October 1, 1914
E. M. WRIGHT, plaintiff-appellant,
vs.
MANILA ELECTRIC R.R. & LIGHT CO., defendant-appellant.
W. A. Kincaid, Thomas L. Hartigan, and Jose Robles Lahesa for plaintiff. Bruce, Lawrence, Ross &
Block for defendant.
MORELAND, J.:
This is an action brought to recover damages for injuries sustained in an accident which occurred in
Caloocan on the night of August 8, 1909.
The defendant is a corporation engaged in operating an electric street railway in the city of Manila and
its suburbs, including the municipality of Caloocan. The plaintiff's residence in Caloocan fronts on the
street along which defendant's tracks run, so that to enter his premises from the street plaintiff is
obliged to cross defendant's tracks. On the night mentioned plaintiff drove home in a calesa and in
crossing the tracks to enter his premises the horse stumbled, leaped forward, and fell, causing the
vehicle with the rails, resulting in a sudden stop, threw plaintiff from the vehicle and caused the
injuries complained of.
It is undisputed that at the point where plaintiff crossed the tracks on the night in question not only the
rails were above-ground, but that the ties upon which the rails rested projected from one-third to one-
half of their depth out of the ground, thus making the tops of the rails some 5 or 6 inches or more
above the level of the street.
It is admitted that the defendant was negligent in maintaining its tracks as described, but it is contended
that the plaintiff was also negligent in that he was intoxicated to such an extent at the time of the
accident that he was unable to take care of himself properly and that such intoxication was the primary
cause of the accident.
The trial court held that both parties were negligent, but that the plaintiff's negligence was not as great
as defendant's and under the authority of the case of Rakes vs. A. G. & P. Co. (7 Phil. Rep., 359)
apportioned the damages and awarded plaintiff a judgment of P1,000.
The question before us is stated by the defendant thus: "Accepting the findings of the trial court that
both plaintiff and defendant were guilty of negligence, the only question to be considered is whether
the negligence of plaintiff contributed t the 'principal occurrence' or 'only to his own injury.' If the
former, he cannot recover; if the latter, the trial court was correct in apportioning the damages."
The questioned as stated by plaintiff is as follows: "The main question at issue is whether or not the
plaintiff was negligent, and, if so, to what extent. If the negligence of the plaintiff was the primary
cause of the accident then, of course, he cannot recover; if his negligence had nothing to do with the
accident but contributed to his injury, then the court was right in apportioning the damages, but if there
was no negligence on the part of the plaintiff, then he should be awarded damages adequates to the
injury sustained."
In support of the defendant's contention counsel says: "Defendant's negligence was its failure properly
to maintain the track; plaintiff's negligence was his intoxication; the 'principal occurrence' was
plaintiff's fall from his calesa. It seems clear that plaintiff's intoxication contributed to the fall; if he
had been sober, it can hardly be doubted that he would have crossed the track safely, as he had done a
hundred times before."
While both parties appealed from the decision, the defendant on the ground that it was not liable and
the plaintiff on the ground that the damages were insufficient according to the evidence, and while the
plaintiff made a motion for a new trial upon the statutory grounds and took proper exception to the
denial thereof, thus conferring upon this court jurisdiction to determine the question of fact,
nevertheless, not all of the testimony taken on the trial, so far as can be gathered from the record, has
been brought to this court. There seems to have been two hearings, one on the 31st of August and the
other on the 28th of September. The evidence taken on the first hearing is here; that taken on the
second is not. Not all the evidence taken on the hearings being before the court, we must refuse, under
our rules, to consider even that evidence which is here; and, in the decision of this case, we are,
therefore, relegated to the facts stated in the opinion of the court and the pleadings filed.
A careful reading of the decision of the trial court leads us to the conclusion that there is nothing in the
opinion which sustains the conclusion of the court that the plaintiff was negligent with reference to the
accident which is the basis of this action. Mere intoxication establish a want of ordinary care. It is but a
circumstance to be considered with the other evidence tending to prove negligence. It is the general
rule that it is immaterial whether a man is drunk or sober if no want of ordinary care or prudence can
be imputed to him, and no greater degree of care is required than by a sober one. If one's conduct is
characterized by a proper degree of care and prudence, it is immaterial whether he is drunk or sober.
(Ward vs . Chicago etc., R. R. Co., 85 Wis., 601; H & T. C. R. Co. vs . Reason, 61 Tex., 613; Alger vs .
Lowell, 3 Allen, Mass., 402; Central R. R. Co. vs . Phinazee, 93 Ga., 488; Maguire vs . Middlesex R.
R. Co., 115 Mass., 239; Meyer vs . Pacific R. R. Co., 40 Mo., 151., Chicago & N. W. R. R. Co. vs .
Drake, 33 Ill. App., 114.)
If intoxication is not in itself negligence, what are the facts found by the trial court and stated in its
opinion upon which may be predicated the finding that the plaintiff did not use ordinary care and
prudence and that the intoxication contributed to the injury complained of? After showing clearly and
forcibly the negligence of the defendant in leaving its tracks in the condition in which they were on the
night of the injury, the court has the following to say, and it is all that can be found in its opinion, with
reference to the negligence of the plaintiff: "With respect to the condition in which Mr. Wright was on
returning to his house on the night in question, the testimony of Doctor Kneedler, who was the
physician who attended him an hour after the accident, demonstrates that he was intoxicated. . . .
If the defendant or its employees were negligent by reason of having left the rails and a part of the ties
uncovered in a street where there is a large amount of travel, the plaintiff was no less negligent, he not
having abstained from his custom of taking more wine than he could carry without disturbing his
judgment and his self-control, he knowing that he had to drive a horse and wagon and to cross railroad
tracks which were to a certain extent dangerous by reason of the rails being elevated above the level of
the street.
If the plaintiff had been prudent on the night in question and had not attempted to drive his conveyance
while in a drunken condition, he would certainly have avoided the damages which he received,
although the company, on its part, was negligent in maintaining its tracks in a bad condition for travel.
Both parties, therefore, were negligent and both contributed to the damages resulting to the plaintiff,
although the plaintiff, in the judgment of the court, contributed in greater proportion to the damages
that did the defendant.
As is clear from reading the opinion, no facts are stated therein which warrant the conclusion that the
plaintiff was negligent. The conclusion that if he had been sober he would not have been injured is not
warranted by the facts as found. It is impossible to say that a sober man would not have fallen from the
vehicle under the conditions described. A horse crossing the railroad tracks with not only the rails but a
portion of the ties themselves aboveground, stumbling by reason of the unsure footing and falling, the
vehicle crashing against the rails with such force as to break a wheel, this might be sufficient to throw
a person from the vehicle no matter what his condition; and to conclude that, under such
circumstances, a sober man would not have fallen while a drunken man did, is to draw a conclusion
which enters the realm of speculation and guesswork.
It having been found that the plaintiff was not negligent, it is unnecessary to discuss the question
presented by the appellant company with reference to the applicability of the case of Rakes vs. A. G. &
P. Co., above; and we do not find facts in the opinion of the court below which justify a larger verdict
than the one found.
Arellano, C.J., Torres and Araullo, JJ., concur.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-4543 October 29, 1908
MIGUEL SAMSON, plaintiff-appellee,
vs.
PAULINO DIONISIO and HONORATA FABIAN, defendants-appellants.
S. Apacible for appellants. N. Crisostomo for appellee.
TORRES, J.:
Miguel Samson, the owner and possessor , for more than twenty years, of a fish pond in Panasahan, a
barrio of Bambang, the location and area of which pond are described in his written complaint, states
that the spouses Paulino Dionisio and Honorata Fabian, les than a year ago, constructed a dam in
substitution of a former one, thereby closing the southern end of the Magos Creek which empties into
the Bocaue River. In consequence, during the rainy season, the water rose for lack of an outlet, and the
neighboring lands, including the plaintiff's fish pond, became flooded, and fish to the number of about
two thousand, valued at P100, escaped; that the new dike prevents the emptying of the esteroand
effects considerable damage during the rainy season by raising the level of water, for which reason the
value of is fish pond is reduced, its banks and supports weakened, and it is impossible to keep it in
good order. He further alleges that the said creek is a tributary of the Bocaue River and is of public
domain and for the common use of all the owners of the neighboring estates, among which latter is the
plaintiff's fish pond; therefore, he asked that judgment be entered in his favor, that the defendants be
ordered to reopen at their expense and for public use the mouth of the Magos Creek emptying into
Bocaue River, to pay P100 as indemnity for damages, and costs.
The defendants denied all the facts set out in the complaint, inasmuch as they had not closed any
branch of a river that was of public domain, but had closed a small creek caused no injury to the other
estates in the locality, it not being true that the neighbors were in the habit of travelling
in banquillas over the creek; that said creek had never been in public use; and that the fish pond of the
plaintiff was not injured by the dam constructed upon their own land. As a special defense, it was
alleged that, to the south of the fish pond described in the first paragraph of the complaint, there exists
no branch of the river that might be utilized for the neighboring fields and fish ponds; that all owners
of land in the locality have access to the Bocaue River; and that the workmen and laborers of the rice
fields pass over the said river and avail themselves of its waters without the necessity of using the
creek; they therefore asked that the complaint be dismissed with costs.
By a subsequent writing, they prayed to be allowed to amend their answer, alleging that they denied
the existence of the Magos Creek and that they had closed the mouth of the branch of the Bocaue
River; that the defendants, in constructing mud banks for the purpose of retaining the waters within
their own lands, did not go beyond the boundary of their property in the sitio of Magos; that in the
said sitio no branch of the river exists, nor running water of any importance known by the name of the
Magos Creek or lake; therefore, they asked the dismissal of the complaint with the costs against the
plaintiff.
Evidence was adduced by the plaintiff and exhibits were made of record; the court below entered
judgment on the 29th of June, 1906, and ordered that the plaintiff recover from the defendants an
indemnity of P150, and costs; that the defendants, within sixty days of the receipt of a certified copy of
the decision, remove or cause to be removed the entire dam or barrier between the said creek and the
river, which should impede the free and natural course of the waters and passage of fish and bancas;
and that, in case the defendants failed to comply with the order of removal or any injunction contained
therein, the plaintiff should immediately communicate such failure to the court below in order that it
might proceed in accordance with law and justice. The defendants excepted to this decision and moved
for a new trial, submitting an affidavit subscribed by Paulino Dionisio, regarding an accident that
happened to him on the day of the trial , but the judge below, in view of the proceedings, at the prayer
of the plaintiff, and for the reasons stated in his order, overruled the said motion with the costs against
the defendant.
As will be seen, the matter at issue is the question of the ownership of a creek or pond which receives
its waters from the Bocaue River. According to the defendants, the said creek is situated within their
own land, for which reason they believed they were entitled to construct dams at the entrance of the
creek; but the plaintiff states that it is public property, and in common use by the residents of that
locality.
Article 339 of the Civil Code provides that:
Property of public ownership is:
1. That destined to the public use, such as roads, canals, rivers, torrents, ports, and bridges constructed
by the State, and banks, shores, roadsteads, and that of a similar character.
Article 344 of said code also prescribes that:
Property of public use in provinces and in towns comprises the provincial and town roads, the squares,
streets, fountains, and public waters, the promenades, and public works of general service supported by
the said towns or provinces.
Article 407 of said code provides:
The following are of public ownership:
1. Rivers and their natural beds.
xxx xxx xxx 4. Lakes and ponds formed by nature on public lands and their beds.
The provisions of the above articles are substantially in conformity with the Law of Waters of the 3d of
August, 1866, the only one extended to these Islands, which was published in the Gaceta de Manila of
the 24th of September, 1871. It should be noted that, in classifying such properties, the code only
mentions some of them by way of examples, as for instance, paragraph 1 of article 339 says "and that
of a similar character."
It is proven by the record, and furthermore admitted by the defendants, that twice in succession, at an
interval of a few months, they closed the southern end of the creek called Magos where it
communicates with Bocaue River, and remove and destroyed the dam or mud bank which at one time
was further up the creek toward the east side of its mouth, substituting another dike of the same
material further out toward the river and in a line with its eastern bank; the fish pond of the defendants
has been widened in the direction of the river, as may be seen from the plans, Nos. 1 and 2, attached to
the record.
This is not a question of violation of the right of easement over the Magos Creek, nor does it appear
that any question in such sense has been raised in this litigation, notwithstanding the fact that in the
brief of the appellants an attempt is made to turn the matter into an action upon an easement of waters.
The claim formulated in the complaint is restricted to the usurpation by a private individual of a creek
or branch of a river of public ownership and utilized in common by the residents of the barrio of
Bambang and the town of Bocaue, and to the loss and damage caused to the plaintiff on account of the
dike or dam erected by the defendants, obstructing the flow of water between the Bocaue River and the
said creek.
In the present cause it has not been proved that the Magos Creek formed a part of the land and fish
pond of the defendants, and in spite of their denial that the said creek was located at the side of their
land and fish pond, the evidence furnished by the plaintiff clearly contradicts them and shows the
contrary, in an unquestionable manner, that is, that the Magos Creek existed in said locality and that it
was utilized by the public in general; that it was a passage for the public traveling in small craft to and
from the lands alongside the river; that fish passed in and out by it and that through the said creek the
waters coming from the adjoining estates during the rainy season flowed into the river until it was
closed by the appellants.
Hence, upon the theory already proven, that the creek in question was of public ownership, and not the
property of the defendants, it is clear that the latter had no right whatever to construct the said dams,
closing its entrance into and communication with the Bocaue River; and, inasmuch as they did it
without any authority and to the loss and prejudice of the plaintiff, they are under obligation to
indemnify the latter for reasons alleged by him in his complaint, in accordance with the provisions of
article 1902 of the Civil Code.
In view of the foregoing, and for the reasons stated in the judgment appealed from, it is our opinion
that the said judgment should be and is hereby affirmed, with the costs against the appellants;
provided, however, that the indemnity to be paid to the plaintiff shall be but P100, as demanded by him
in his complaint. So ordered.
Arellano, C.J., Mapa. Carson, Willard and Tracey, JJ., concur.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-3935 December 4, 1907
UY PIAOCO, plaintiff-appellee,
vs.
SERGIO OSMENA, defendant-appellant.
D. Franco, for appellant. Levering and Wood, for appellee.
TORRES, J.:
On the 7th of September, 1906, Uy Piaoco, a Chinaman, filed a complaint against the sheriff of the
Court of First Instance of Cebu, Sergio Osmena, alleging that on or about the 24th of August of said
year the judge of First Instance of said province issued a writ of preliminary attachment upon request
of Martina Rodriguez, against the property of the Chinaman Dy-Siongco and Uy Chiam-Liong, by
reason of a certain amount due by the latter; and on the same date the sheriff, the defendant herein,
levied an attachment on the property belonging to Uy Piaoco, the plaintiff, which existed in a store
situated in Calle del Comercio, close to that of Norte America, in the capital of Cebu; during the whole
of the time mentioned in the complaint, the above-named Dy-Siongco and Uy Chiam-Liong had no
interest whatever as owners in the said store or its contents. The defendant, without authority from any
court and without any just reason therefor, closed the aforesaid store owned by the plaintiff, and placed
under custody the goods therein contained, and notwithstanding the fact that on the same date the
plaintiff filed a proper claim before the sheriff, the defendant herein, and asked the discharge of the
goods that had been attached, the said defendant, without any right however, refused to deliver the
goods of the plaintiff, keeping them under custody, the store remaining closed up to this date.
The property that was attached consisted of the said store and a large assortment of goods valued at
P15,000; it was further stated that prior to the attachment, goods to the value of more than P10,000
were sold every month with a net profit of P1,500; and that in consequence of the attachment the
plaintiff, besides the value of the goods, suffered damages to the extent of P1,500 per month; that on
the 13th of August the said defendant, without any right whatever under the attachment order, attached
about three hundred bales of tobacco, the property of the plaintiff, stored in the town of Naga in said
province, said tobacco being valued at P1,700, and was not returned by the defendant in spite of the
fact that a claim was filed with him by the plaintiff, and the said Dy-Siongco and Uy Chiam-Liong
never had any interest as owners in the same. In consequence of the said attachments the plaintiff
suffered damages and his credit in Cebu and in Manila was ruined, and he lost the value of the attached
goods which amounted to P15,000; he therefore asked that judgment be entered in his favor, and that
the defendant be sentenced to replace him in the possession of the store, and of the tobacco and goods,
as stated above, or otherwise to pay the value thereof amounting to P16,700, to pay the sum of P15,000
together with P1,500 monthly from the 24th of August, 1906, until such time as the store and the goods
are returned to him, and to pay the costs of the proceedings, and finally he asked for any other remedy
which the court might consider proper.
The defendant in his answer alleged that the contents of paragraphs 1 and 2 of the complaint were true,
as also the contents of paragraph 2, which should be the third, regarding the issue of the writ of
attachment against the property of Uy Chiam-Liong and Dy-Siongco on the 24th of August, 1906, in
the civil case instituted against them by Martina Rodriguez; but that it was not true that the defendant
had attached property belonging to the plaintiff since what had been seized by him in compliance with
the order of the court belonged to the said Uy Chiam-Liong and Dy-Siongco, it being also true that the
defendant did not received orders from any competent authority to attach any property of the plaintiff,
Uy Piaoco, and that he did not attach any property and goods belonging to the latter; that it was true
that he refused to deliver to him the attached property because he did not believe that it belonged to
him but to the said Uy Chiam-Liong and Dy-Siongco, and further, because the defendant had not been
informed in a conclusive manner of the right upon which the plaintiff intended to base his title of
ownership; that the contents of paragraph 5 of the complaint were true as to what the attached property
consisted of, but not as to the value thereof, which should only be determined from the inventory made
by the defendant, the allegations contained in paragraphs 6 and 8 of the complaint being denied; that it
was true that the defendant on the 13th of August, aforesaid, did attached 300 quintals of tobacco, but
that it was not true that said article was the property of the plaintiff because it was owned exclusively
by Uy Chiam-Liong and Dy-Siongco, and for said reason he refused and still refuses to deliver the 300
quintals of tobacco to the plaintiff, because the latter is not the owner of the same; he therefore asked
that the complaint be dismissed with costs against the plaintiff.
The evidence adduced by both parties having been received at the trial and some of the documents
exhibited attached to the records, the books remaining in the possession of the clerk of the court
because it was impossible to attach them to said records, it appears that on the 17th of January, 1906,
the Chinamen Dy-Siongco and Uy Chiam-Liong and Serafin Uy Piaoco appeared before Martin M.
Levering, a notary public in Cebu, and produced a document said to be a contract of sale, entered into
between the two first named and the third party, of all the goods, merchandise, and furniture owned by
Dy-Siongco and Uy Chiam-Liong, who were indebted to Uy Piaoco in the sum of P39,752.25, made
out in favor of the creditor Uy Piaoco; the said goods, merchandise, and furniture were deposited at the
house of Joaquin Castro y Cia. in Calle del Comercio, Cebu, and were valued at P22,000; that the said
debtors sold to their creditor a building lot situated in Calle Magallanes, Cebu, valued at P5,000, and to
this purpose the vendors executed the corresponding bill of sale before the said notary, which
document, signed on the same date, is considered as a part of the above-named agreement; that they
also sold four hundred shares of the Yuen Sheng Company of Manila, at the rate of P100 per share,
their par value, said shares appearing in the name of Uy Chiam-Liong, who paid P50 on account of
each share to said company, but Uy Chiam-Liong obtained from said company a loan of P10,000,
mortgaging the said four hundred shares as security for the loan, it having been agreed that the present
value of the shares was P9,000; that the total value of all the property conveyed to the creditor was
P36,752.25, and that in consideration of said transfer, the creditor, Uy Piaoco, waived the balance of
the indebtedness, and the contracting parties signed the document drawn out in duplicate at Cebu, on
the date aforementioned. Counsel for the defendant took exception to the filing of said bill of sale.
Counsel for the plaintiff offered in evidence, as Exhibit B, the inventory book, to which the lawyer of
the defendant took exception, on the ground that the same had not been proven to be such inventory
book because it was not signed by Uy Chiam-Liong and Dy-Siongco.
Pages 38 and 39 of the book, Exhibit D, and page 25 of Exhibit F were also offered as evidence of the
accounts between Uy Chiam-Liong, Dy-Siongco, and Uy Piaoco, which were likewise opposed and
excepted to by the defendant on the ground that the books referred to were not kept in accordance with
the provisions of the Code of Commerce.
A document marked as Exhibit J was also offered in evidence, some of its pages having been signed by
the court, and to this the defendant also excepted because it was not a legal book and had not been
identified.
In view of the above facts, judgment was rendered on the 23d of November, 1906, in favor of the
plaintiff, holding therein that the property attached belonged to him by virtue of a valid sale made to
him by the Chinamen Uy Chiam-Liong and Dy-Siongco, the court ordering that the bond of the
plaintiff for the retention of the property held by him be set aside, and that the said plaintiff recover
judgment against the defendant for the absolute possession of said property and for the sum of P1,750
as damages, with the interest thereon at the rate of 6 per cent per annum from the 24th day of
November, 1906, and the costs of the proceedings.
The above judgment was excepted to by the defendant, who gave notice of his intention to appeal to
the Supreme Court and also moved for a new trial on the ground that the findings were openly and
manifestly contrary to the weight of the evidence; the motion having been overruled, defendant
excepted thereto and upon approval of the bill of exceptions the same was submitted to this court.
The sale of the goods, merchandise, and furniture contained in the store established on the ground floor
of the house of Joaquin Castro y Cia. situated in Calle del Comercio, Cebu, made on the 17th of
January, 1906, by the owners thereof, Uy Chiam-Liong and Dy-Siongco in favor of Uy Piaoco, was
ratified before Martin M. Levering, a notary public, and authenticated by him; said deed, which was
executed by both parties, was not argued as false nor was any motion for the nullity of this sale made
during the proceedings on the ground that it was fraudulent, and that it had been made to the prejudice
of the creditors of the vendors.
In said deed the reasons which the vendors had for transferring the goods and furniture to Uy Piaoco,
the creditor and purchaser, are stated, inasmuch as it is affirmed therein that the vendors were indebted
to the purchaser in the sum of P39,752.25; that the total value of the property conveyed or assigned to
said creditor was P36,352.25, and that the creditor waived the balance of his credit; it has not been
proven in any manner that the debt was simulated, in order to be able to assume that the sale or
assignment made to the creditor was both fictitious and fraudulent. Article 1111 of the Civil Code
reads:
Creditors, after having attached the property of which the debtor may be in possession, in order to
collect all that is due them, may exercise all the rights and actions of the latter for the same purpose,
excepting those inherent in his person; they may also impugn the acts which the debtor may have
performed in fraud of their right.
In connection with fraudulent contracts, article 1297 of said code provides:
Contracts by virtue of which the debtor alienates property, for a good consideration, are presumed to
be executed in fraud of creditors.
Alienations for valuable considerations, made by persons against whom a condemnatory judgment, in
any instance, has been previously rendered, or a writ of seizure of property has been issued, shall also
be presumed fraudulent.
The supreme court of Spain in its decision of June 15, 1897, when applying the above last-cited article
to an appeal in cassation, establishes the following doctrine:
The presumption that alienations are fraudulent, established by said article (1297) may, as all others, be
destroyed by proof to the contrary in accordance with article 1251, and any judgment which may so
establish it is not in violation of article 1248 nor of article 1291 of the Civil Code.
No evidence has been adduced to show in a satisfactory manner that Uy Chiam-Liong and Dy-Siongco
were within any of the cases stated in the foregoing articles of the code; that they did not owe Uy
Piaoco any amount; that the contents of the document marked as "Exhibit A" were untrue; and that the
sale of the goods and furniture of the aforesaid store was fictitious and simulated.
The fact that a new license for the store was obtained on behalf of Uy Piaoco from the municipal
treasurer on the same day when the sale was made, and that a few days later Mr. Janssen, agent of the
firm of Behn, Meyer & Co, importers, was informed that Uy Piaoco was the owner of the store and
that he had taken over the goods sold to the former owners thereof, further confirms the truth of the
sale made to the plaintiff.
So that when the said goods and furniture were attached on the 24th of August, 1906, at the request of
another creditor, Martina Rodriguez, it was almost eight months since the article attached had no
longer belonged to Uy Chiam-Liong and Dy-Siongco, but to the plaintiff, Uy Piaoco; therefore the
latter's attorney in fact performed his duty and exercised a perfect right when protesting against the
attachment placed thereon, and in asking the sheriff who carried out the proceeding to release the
attached goods.
Was the affidavit filed by the attorney in fact of the plaintiff affirming that the latter was the owner of
the property levied upon, and not the debtors, Uy Chiam-Liong and Dy-Siongco, as presumed when
the proceeding was executed, sufficient to support the claim and petition for dissolution, or was it
necessary to prove the transfer of the dominion by producing the bill of sale marked as "Exhibit A"?
This question is decided by section 442 of the Code of Civil Procedure, which is of the following
tenor:
Right of third party against officer . — If the property taken be claimed by any other person that the
defendant or his agent and such person make an affidavit of his title thereto or right of the possession
thereof, stating the grounds of such right or title, and serves the same upon the officer while he has
possession of the property, the officer shall not be bound to keep the property under the attachment,
unless the plaintiff, on demand of him, or his agent, indemnify the officer against such claim by an
obligation with two sufficient sureties; and no claim to such property or damage for its seizure by any
other person that the defendant or his agent shall be valid against the officer unless so made, but
nothing herein contained shall prevent such third person from vindicating his claim to the property by
any proper action.
Section 451 of the Code of Civil Procedure accords with the above. Neither of the above section
requires that the title of the ownership be produced or exhibited, an affidavit of his title thereto or of
his right to the possession thereof being all that is necessary to be presented with his written claim to
the sheriff who levied the attachment. Such requirements were undoubtedly complied with by the
attorney in fact of the plaintiff as acknowledged by the defendant himself, and since by none of the
sections cited above is the production of the title deed required, the plaintiff's attorney in fact was not
bound to submit to the sheriff the bill of sale marked as "Exhibit A," as claimed by the appellant in his
brief.
The writ of attachment issued by judicial order was a legal procedure in execution of said order; but
from the time when the agent of the owner seized goods filed a written claim protesting against the
attachment and justified his claim for the removal of the obstacle by means of an affidavit stating his
title thereto or his right to the possession thereof and the grounds of his allegation, the defendant
sheriff should have considered the claim because in accordance with the said section 442 he was not
bound to maintain the attachment nor to keep the property attached in his possession.
According to the Code of Civil Procedure the powers of the sheriff involve both discretion power and
personal liability if he fails to consider a just claim based on the law, thereby causing injury to a third
person whose property is not subject to the responsibility of a debtor nor bound in favor of the creditor
who applied for the attachment. It is unnecessary to produce the title to the property claimed, which
must be done in action of the property claimed, which must be done in action of intervention, and the
qualification of the validity and efficiency of the title rests with the judge. It suffices to attach to the
written claim filed with the sheriff an affidavit of the title thereto or of the right to the possession
thereof with a statement of the grounds on which the claim is based.
A third party who protests against the attachment of his property and presents his claim in accordance
with the provisions of sections 442 and 451 of said Code of Civil Procedure is entitled to protection
and to be maintained in and restored to the possession of his said property, in not being permitted to
deprive him of the same unless by due process of law.
If, notwithstanding a claim made in accordance with the law, a sheriff maintains the attachment and
refuses to dissolve it, he incurs, as a matter of fact, the responsibility which the law determines because
he then commits an act of dispossession or depriving of possession or an actual attempt against the
right of ownership or possession, and violates the legal precepts in force which in this connection are
different from those of the former Ley de Enjuiciamiento Civil; and the person who applied for the
attachment must share the responsibility therefor in case he secured by a bond the responsibility
contracted by the officer who executed the attachment.
The defendant sheriff in disregarding the claim of the plaintiff's attorney in fact and maintaining the
attachment on the property of the said plaintiff, the same not being subject to the liability of the
Chinese debtors of Martina Rodriguez, has injured the said plaintiff by depriving him of the possession
of his personal property for about seventy-five days, and in consequence thereof is bound to repair the
injury caused, in accordance with the provisions of article 1902 of the Civil Code, which treats of
obligations arising from fault or negligence.
Considering that after the expiration of seventy-five days the attachment was removed and the seized
goods were returned to the plaintiff; taking into account that the value given to the goods was P15,000,
the average proceeds of the monthly sales might have been obtained by said store had the same been
kept open, the condition of things in this country including the Island of Cebu even prior to 1906, and
the existence of other similar stores in said city, it is reasonably estimated that the total amount of the
loss suffered in consequence of the attachment together with the rental for the premises and salary of
clerks amounts only to P900, which sum in justice should be paid by the defendant, with interest
thereon at the rate of 6 per cent per annum from the 24th of November, 1906.
With regard to the 300 quintals of tobacco seized in the town of Naga in said island, the record does
not show the same to be the property of the plaintiff, since beyond the fact that nothing is stated in
Exhibit A in reference to said 300 quintals of tobacco, no satisfactory proof exists that they were
acquired for account of the plaintiff. On the contrary, it appears to have been conclusively proven that
the 300 quintals of tobacco seized were the property of the two Chinese debtors of Martina Rodriguez,
Uy Chiam-Liong and Dy-Siongco, and that, therefore, the legal representative of Uy Piaoco, the
plaintiff, had no legal right to request the sheriff to remove the attachment on the tobacco in question
because it did not belong to the plaintiff.
Section 297 of the Code of Civil Procedure dealing on the affirmative allegations which each party
must prove provides that:
Each party must prove his own affirmative allegations. Evidence need not be given in support of a
negative allegation except when such negative allegation is an essential part of the statement of the
right or title on which the cause of action or defense is founded, nor even in such case when the
allegation is a denial of the existence of a document, the custody of which belongs to the opposite
party.
If in accordance with the provision of the foregoing section the plaintiff complied with his duty to
prove that the goods and furniture of the store above referred to were his own property, he has not,
however, done so with regard to the 300 quintals of tobacco, which are shown to belong to Uy Chiam-
Liong and Dy-Siongco.
In view of the considerations above set forth, it is our opinion, and we so hold, that the responsibility-
contracted by the defendant, Sergio Osmena, as sheriff of the Province of Cebu, is limited to the
damage caused by the attachment and retention of the goods and furniture the store acquired by the
plaintiff on the 17th of January, 1906; therefore, the said defendant is hereby sentenced to pay the
plaintiff, Uy Piaoco, as an indemnity, the sum of P900 with interest thereon at the rate of 6 per cent per
annum from the 24th day of November, 1906, without any special ruling as to costs, and the judgment
appealed from, thus modified, is hereby affirmed. So ordered.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-30741 January 30, 1930
TOMAS BERNAL and FORTUNATA ENVERSO, plaintiffs-appellants,
vs.
J. V. HOUSE and TACLOBAN ELECTRIC and ICE PLANT, LTD.,
defendants-appellee.
Kapunan and Kapunan for appellants. Camus and Delgado for appellees.
MALCOLM, J.:
The parents of the five-year old child, Purificacion Bernal, appeal from a judgment of the Court of
First Instance of Leyte, which denied them P15,000 damages from J.V. House and the Tacloban
Electric & Ice Plant, Ltd., for the death of the child as a consequence of burns alleged to have been
caused by the fault and negligence of the defendants.
The salient facts as found by the trial judge are the following:
On the evening of April 10, 1925, the procession of Holy Friday was held in Tacloban, Leyte.
Fortunata Enverso with her daughter Purificacion Bernal came from another municipality to attend the
religious celebration. After the procession was over, the woman and her daughter, accompanied by two
other persons by the names of Fausto and Elias, passed along a public street named Gran Capitan. The
little girl was allowed to get a short distance in advance of her mother and her friends. When in front of
the offices of the Tacloban Electric & Ice Plant, Ltd., and automobile appeared from the opposite
direction which so frightened the child that she turned to run, with the result that she fell into the street
gutter. At that time there was hot water in this gutter or ditch coming from the Electric Ice Plant of J.V.
House. When the mother and her companions reached the child, they found her face downward in the
hot water. Her clothes were immediately removed and, then covered with a garment, the girl was taken
to the provincial hospital. There she was attended by the resident physician, Dr. Victoriano A. Benitez.
Despite his efforts, the child died that same night at 11:40 o'clock.
Dr. Benitez, who, of course, was in a better position than any one to know the cause of the death, and
who had no reason to depart from the true facts, certified that the cause of death was "Burns, 3rd
Degree, whole Body", and that the contributory causes were "Congestion of the Brain and visceras of
the chest & abdomen". The same physician in his general record in the Leyte Hospital for this patient,
under diagnosis in full, stated: "Burned 3rd Degree, whole body". The treatment record of the
attending nurse was much to the same effect.
The defense was that the hot water was permitted to flow down the side of the street Gran Captain with
the knowledge and consent of the authorities; that the cause of death was other than the hot water; and
that in the death the plaintiffs contributed by their own fault and negligence. The trial judge, however,
after examination of the evidence presented by the defendants, failed to sustain their theory of the case,
except as to the last mentioned special defense. We are shown no good reason for the departing from
the conclusion of the trial judge to the effect that the sudden death of the child Purification Bernal was
due principally to the nervous shock and organic calefaction produced by the extensive burns from the
hot water. "The danger from burns is proportional rather to the extent of surface involved than to the
depth of the burn". (Wharton & Stille's Medical Jurisprudence, vol. 3, p. 263). The same authority
continues. "Burns of the first degree, covering two-thirds of the body surface, are rarely recovered
from. . . . Children seem especially susceptible to the effect of burns." (Pp. 263, 264).
Although the trial judge made the findings of fact hereinbefore outlined, he nevertheless was led to
order the dismissal of the action because of the contributory negligence of the plaintiffs. It is from this
point that a majority of the court depart from the stand taken by the trial judge. The mother and her
child had a perfect right to be on the principal street of Tacloban, Leyte, on the evening when the
religious procession was held. There was nothing abnormal in allowing the child to run along a few
paces in advance of the mother. No one could foresee the coincidence of an automobile appearing and
of a frightened child running and falling into a ditch filled with hot water. The doctrines announced in
the much debated case of Rakes vs. Atlantic, Gulf and Pacific Co. ([1907], 7 Phil., 359), still rule.
Article 1902 of the Civil Code must again be enforced. The contributory negligence of the child and
her mother, if any, does not operate as a bar to recovery, but in its strictest sense could only result in
reduction of the damages.
Having reached the conclusion that liability exists, we next turn to discover who can recover damages
for the obligation, and against whom the action will lie. The plaintiffs are Tomas Bernal and Fortunata
Enverso. The latter was the mother of Purificacion Bernal and the former was the natural father, who
had never legally recognized his child. The daughter lived with the mother, and presumably was
supported by her. Under these facts, recovery should be permitted the mother but not the father. As to
the defendants, they are J.V. House and the Tacloban Electric & Ice Plant, Ltd., J.V. House was
granted a franchise by Act No. 2700 of the Philippine Legislature approved on March 9, 1917. He only
transferred this franchise formally to the Tacloban Electric & Ice Plant, Ltd. on March 30, 1926, that
is, nearly a year after the death of the child Purificacion Bernal. Under these facts, J.V. House is solely
responsible.
Counsel for appellees point out that there is no satisfactory proof to establish the pecuniary loss. That
is true. But in cases of this character the law presumes a loss because of the impossibility of exact
computation. There is not enough money in the entire world to compensate a mother for the death of
her child. In criminal cases, the rule has been to allow as a matter of course P1,000 as indemnity to the
heirs of the deceased. In the case of Manzanares vs. Moreta ([1918], 38 Phil., 821), which in many
respects is on all fours with the case at bar, the same amount of P1,000 was allowed the mother of the
dead boy eight or nine years of age. The same criterion will have to be followed in this instance.
The result will, therefore, be to accept the findings of fact made by the trial judge; to set aside the legal
deductions flowing from those facts; to hold that the death of the child Purificacion Bernal was the
result of fault and negligence in permitting hot water to flow through the public streets, there to
endanger the lives of passers-by who were unfortunately enough to fall into it; to rule that the proper
plaintiff is the mother Fortunata Enverso and not the natural father Tomas Bernal; to likewise rule that
the person responsible to the plaintiff is J.V. House and not the entity the Tacloban Electric & Ice
Plant, Ltd.; and finally to adjudge that the amount of recovery, without the tendering of special proof,
should be fixed, as in other cases, at P1,000.
Concordant with the pronouncements just made, the judgment appealed from shall in part be reversed
and in the court of origin another judgment shall issue in favor of Fortunata Enverso and against J.V.
House for the amount of P1,000, and for the costs of both instances.
Street, Villamor, Ostrand, Johns and Villa-Real, JJ., concur. Johnson, J., dissents.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-19671 November 29, 1965
PASTOR B. TENCHAVEZ, plaintiff-appellant,
vs.
VICENTA F. ESCAÑO, ET AL., defendants-appellees.
I. V. Binamira & F. B. Barria for plaintiff-appellant. Jalandoni & Jarnir for defendants-appellees.
REYES, J.B.L., J.:
Direct appeal, on factual and legal questions, from the judgment of the Court of First Instance of Cebu,
in its Civil Case No. R-4177, denying the claim of the plaintiff-appellant, Pastor B. Tenchavez, for
legal separation and one million pesos in damages against his wife and parents-in-law, the defendants-
appellees, Vicente, Mamerto and Mena, 1 all surnamed "Escaño," respectively. 2
The facts, supported by the evidence of record, are the following:
Missing her late afternoon classes on 24 February 1948 in the University of San Carlos, Cebu City,
where she was then enrolled as a second year student of commerce, Vicenta Escaño, 27 years of age
(scion of a well-to-do and socially prominent Filipino family of Spanish ancestry and a "sheltered
colegiala"), exchanged marriage vows with Pastor Tenchavez, 32 years of age, an engineer, ex-army
officer and of undistinguished stock, without the knowledge of her parents, before a Catholic chaplain,
Lt. Moises Lavares, in the house of one Juan Alburo in the said city. The marriage was the culmination
of a previous love affair and was duly registered with the local civil register.
Vicenta's letters to Pastor, and his to her, before the marriage, indicate that the couple were deeply in
love. Together with a friend, Pacita Noel, their matchmaker and go-between, they had planned out
their marital future whereby Pacita would be the governess of their first-born; they started saving
money in a piggy bank. A few weeks before their secret marriage, their engagement was broken;
Vicenta returned the engagement ring and accepted another suitor, Joseling Lao. Her love for Pastor
beckoned; she pleaded for his return, and they reconciled. This time they planned to get married and
then elope. To facilitate the elopement, Vicenta had brought some of her clothes to the room of Pacita
Noel in St. Mary's Hall, which was their usual trysting place.
Although planned for the midnight following their marriage, the elopement did not, however,
materialize because when Vicente went back to her classes after the marriage, her mother, who got
wind of the intended nuptials, was already waiting for her at the college. Vicenta was taken home
where she admitted that she had already married Pastor. Mamerto and Mena Escaño were surprised,
because Pastor never asked for the hand of Vicente, and were disgusted because of the great scandal
that the clandestine marriage would provoke (t.s.n., vol. III, pp. 1105-06). The following morning, the
Escaño spouses sought priestly advice. Father Reynes suggested a recelebration to validate what he
believed to be an invalid marriage, from the standpoint of the Church, due to the lack of authority from
the Archbishop or the parish priest for the officiating chaplain to celebrate the marriage. The
recelebration did not take place, because on 26 February 1948 Mamerto Escaño was handed by a maid,
whose name he claims he does not remember, a letter purportedly coming from San Carlos college
students and disclosing an amorous relationship between Pastor Tenchavez and Pacita Noel; Vicenta
translated the letter to her father, and thereafter would not agree to a new marriage. Vicenta and Pastor
met that day in the house of Mrs. Pilar Mendezona. Thereafter, Vicenta continued living with her
parents while Pastor returned to his job in Manila. Her letter of 22 March 1948 (Exh. "M"), while still
solicitous of her husband's welfare, was not as endearing as her previous letters when their love was
aflame.
Vicenta was bred in Catholic ways but is of a changeable disposition, and Pastor knew it. She fondly
accepted her being called a "jellyfish." She was not prevented by her parents from communicating with
Pastor (Exh. "1-Escaño"), but her letters became less frequent as the days passed. As of June, 1948 the
newlyweds were already estranged (Exh. "2-Escaño"). Vicenta had gone to Jimenez, Misamis
Occidental, to escape from the scandal that her marriage stirred in Cebu society. There, a lawyer filed
for her a petition, drafted by then Senator Emmanuel Pelaez, to annul her marriage. She did not sign
the petition (Exh. "B-5"). The case was dismissed without prejudice because of her non-appearance at
the hearing (Exh. "B-4").
On 24 June 1950, without informing her husband, she applied for a passport, indicating in her
application that she was single, that her purpose was to study, and she was domiciled in Cebu City, and
that she intended to return after two years. The application was approved, and she left for the United
States. On 22 August 1950, she filed a verified complaint for divorce against the herein plaintiff in the
Second Judicial District Court of the State of Nevada in and for the County of Washoe, on the ground
of "extreme cruelty, entirely mental in character." On 21 October 1950, a decree of divorce, "final and
absolute", was issued in open court by the said tribunal.
In 1951 Mamerto and Mena Escaño filed a petition with the Archbishop of Cebu to annul their
daughter's marriage to Pastor (Exh. "D"). On 10 September 1954, Vicenta sought papal dispensation of
her marriage (Exh. "D"-2).
On 13 September 1954, Vicenta married an American, Russell Leo Moran, in Nevada. She now lives
with him in California, and, by him, has begotten children. She acquired American citizenship on 8
August 1958.
But on 30 July 1955, Tenchavez had initiated the proceedings at bar by a complaint in the Court of
First Instance of Cebu, and amended on 31 May 1956, against Vicenta F. Escaño, her parents,
Mamerto and Mena Escaño, whom he charged with having dissuaded and discouraged Vicenta from
joining her husband, and alienating her affections, and against the Roman Catholic Church, for having,
through its Diocesan Tribunal, decreed the annulment of the marriage, and asked for legal separation
and one million pesos in damages. Vicenta claimed a valid divorce from plaintiff and an equally valid
marriage to her present husband, Russell Leo Moran; while her parents denied that they had in any way
influenced their daughter's acts, and counterclaimed for moral damages.
The appealed judgment did not decree a legal separation, but freed the plaintiff from supporting his
wife and to acquire property to the exclusion of his wife. It allowed the counterclaim of Mamerto
Escaño and Mena Escaño for moral and exemplary damages and attorney's fees against the plaintiff-
appellant, to the extent of P45,000.00, and plaintiff resorted directly to this Court.
The appellant ascribes, as errors of the trial court, the following:
1. In not declaring legal separation; in not holding defendant Vicenta F. Escaño liable for damages and
in dismissing the complaint;.
2. In not holding the defendant parents Mamerto Escano and the heirs of Doña Mena Escaño liable for
damages;.
3 In holding the plaintiff liable for and requiring him to pay the damages to the defendant parents on
their counterclaims; and.
4. In dismissing the complaint and in denying the relief sought by the plaintiff.
That on 24 February 1948 the plaintiff-appellant, Pastor Tenchavez, and the defendant-appellee,
Vicenta Escaño, were validly married to each other, from the standpoint of our civil law, is clearly
established by the record before us. Both parties were then above the age of majority, and otherwise
qualified; and both consented to the marriage, which was performed by a Catholic priest (army
chaplain Lavares) in the presence of competent witnesses. It is nowhere shown that said priest was not
duly authorized under civil law to solemnize marriages.
The chaplain's alleged lack of ecclesiastical authorization from the parish priest and the Ordinary, as
required by Canon law, is irrelevant in our civil law, not only because of the separation of Church and
State but also because Act 3613 of the Philippine Legislature (which was the marriage law in force at
the time) expressly provided that —
SEC. 1. Essential requisites . Essential requisites for marriage are the legal capacity of the contracting
parties and consent. (Emphasis supplied)
The actual authority of the solemnizing officer was thus only a formal requirement, and, therefore, not
essential to give the marriage civil effects, 3 and this is emphasized by section 27 of said marriage act,
which provided the following:
SEC. 27. Failure to comply with formal requirements . No marriage shall be declared invalid because
of the absence of one or several of the formal requirements of this Act if, when it was performed, the
spouses or one of them believed in good faith that the person who solemnized the marriage was
actually empowered to do so, and that the marriage was perfectly legal.
The good faith of all the parties to the marriage (and hence the validity of their marriage) will be
presumed until the contrary is positively proved (Lao vs. Dee Tim, 45 Phil. 739, 745; Francisco vs.
Jason, 60 Phil. 442, 448). It is well to note here that in the case at bar, doubts as to the authority of the
solemnizing priest arose only after the marriage, when Vicenta's parents consulted Father Reynes and
the archbishop of Cebu. Moreover, the very act of Vicenta in abandoning her original action for
annulment and subsequently suing for divorce implies an admission that her marriage to plaintiff was
valid and binding.
Defendant Vicenta Escaño argues that when she contracted the marriage she was under the undue
influence of Pacita Noel, whom she charges to have been in conspiracy with appellant Tenchavez.
Even granting, for argument's sake, the truth of that contention, and assuming that Vicenta's consent
was vitiated by fraud and undue influence, such vices did not render her marriage ab initio void, but
merely voidable, and the marriage remained valid until annulled by a competent civil court. This was
never done, and admittedly, Vicenta's suit for annulment in the Court of First Instance of Misamis was
dismissed for non-prosecution.
It is equally clear from the record that the valid marriage between Pastor Tenchavez and Vicenta
Escaño remained subsisting and undissolved under Philippine law, notwithstanding the decree of
absolute divorce that the wife sought and obtained on 21 October 1950 from the Second Judicial
District Court of Washoe County, State of Nevada, on grounds of "extreme cruelty, entirely mental in
character." At the time the divorce decree was issued, Vicenta Escaño, like her husband, was still a
Filipino citizen. 4She was then subject to Philippine law, and Article 15 of the Civil Code of the
Philippines (Rep. Act No. 386), already in force at the time, expressly provided:
Laws relating to family rights and duties or to the status, condition and legal capacity of persons are
binding upon the citizens of the Philippines, even though living abroad.
The Civil Code of the Philippines, now in force, does not admit absolute divorce, quo ad vinculo
matrimonii ; and in fact does not even use that term, to further emphasize its restrictive policy on the
matter, in contrast to the preceding legislation that admitted absolute divorce on grounds of adultery of
the wife or concubinage of the husband (Act 2710). Instead of divorce, the present Civil Code only
provides for legal separation (Title IV, Book 1, Arts. 97 to 108), and, even in that case, it expressly
prescribes that "the marriage bonds shall not be severed" (Art. 106, subpar. 1).
For the Philippine courts to recognize and give recognition or effect to a foreign decree of absolute
divorce betiveen Filipino citizens could be a patent violation of the declared public policy of the state,
specially in view of the third paragraph of Article 17 of the Civil Code that prescribes the following:
Prohibitive laws concerning persons, their acts or property, and those which have for their object
public order, policy and good customs, shall not be rendered ineffective by laws or judgments
promulgated, or by determinations or conventions agreed upon in a foreign country.
Even more, the grant of effectivity in this jurisdiction to such foreign divorce decrees would, in effect,
give rise to an irritating and scandalous discrimination in favor of wealthy citizens, to the detriment of
those members of our polity whose means do not permit them to sojourn abroad and obtain absolute
divorces outside the Philippines.
From this point of view, it is irrelevant that appellant Pastor Tenchavez should have appeared in the
Nevada divorce court. Primarily because the policy of our law cannot be nullified by acts of private
parties (Civil Code,Art. 17, jam quot.); and additionally, because the mere appearance of a non-
resident consort cannot confer jurisdiction where the court originally had none (Area vs. Javier, 95
Phil. 579).
From the preceding facts and considerations, there flows as a necessary consequence that in this
jurisdiction Vicenta Escaño's divorce and second marriage are not entitled to recognition as valid; for
her previous union to plaintiff Tenchavez must be declared to be existent and undissolved. It follows,
likewise, that her refusal to perform her wifely duties, and her denial of consortium and her desertion
of her husband constitute in law a wrong caused through her fault, for which the husband is entitled to
the corresponding indemnity (Civil Code, Art. 2176). Neither an unsubstantiated charge of deceit nor
an anonymous letter charging immorality against the husband constitute, contrary to her claim,
adequate excuse. Wherefore, her marriage and cohabitation with Russell Leo Moran is technically
"intercourse with a person not her husband" from the standpoint of Philippine Law, and entitles
plaintiff-appellant Tenchavez to a decree of "legal separation under our law, on the basis of adultery"
(Revised Penal Code, Art. 333).
The foregoing conclusions as to the untoward effect of a marriage after an invalid divorce are in accord
with the previous doctrines and rulings of this court on the subject, particularly those that were
rendered under our laws prior to the approval of the absolute divorce act (Act 2710 of the Philippine
Legislature). As a matter of legal history, our statutes did not recognize divorces a vinculo before
1917, when Act 2710 became effective; and the present Civil Code of the Philippines, in disregarding
absolute divorces, in effect merely reverted to the policies on the subject prevailing before Act 2710.
The rulings, therefore, under the Civil Code of 1889, prior to the Act above-mentioned, are now, fully
applicable. Of these, the decision in Ramirez vs. Gmur , 42 Phil. 855, is of particular interest. Said this
Court in that case:
As the divorce granted by the French Court must be ignored, it results that the marriage of Dr. Mory
and Leona Castro, celebrated in London in 1905, could not legalize their relations; and the
circumstance that they afterwards passed for husband and wife in Switzerland until her death is wholly
without legal significance. The claims of the very children to participate in the estate of Samuel Bishop
must therefore be rejected. The right to inherit is limited to legitimate, legitimated and acknowledged
natural children. The children of adulterous relations are wholly excluded. The word "descendants" as
used in Article 941 of the Civil Code cannot be interpreted to include illegitimates born
of adulterousrelations. (Emphasis supplied)
Except for the fact that the successional rights of the children, begotten from Vicenta's marriage to Leo
Moran after the invalid divorce, are not involved in the case at bar, theGmur case is authority for the
proposition that such union is adulterous in this jurisdiction, and, therefore, justifies an action for legal
separation on the part of the innocent consort of the first marriage, that stands undissolved in
Philippine law. In not so declaring, the trial court committed error.
True it is that our ruling gives rise to anomalous situations where the status of a person (whether
divorced or not) would depend on the territory where the question arises. Anomalies of this kind are
not new in the Philippines, and the answer to them was given in Barretto vs. Gonzales , 58 Phil. 667:
The hardship of the existing divorce laws in the Philippine Islands are well known to the members of
the Legislature. It is the duty of the Courts to enforce the laws of divorce as written by Legislature if
they are constitutional. Courts have no right to say that such laws are too strict or too liberal. (p. 72)
The appellant's first assignment of error is, therefore, sustained.
However, the plaintiff-appellant's charge that his wife's parents, Dr. Mamerto Escaño and his wife, the
late Doña Mena Escaño, alienated the affections of their daughter and influenced her conduct toward
her husband are not supported by credible evidence. The testimony of Pastor Tenchavez about the
Escaño's animosity toward him strikes us to be merely conjecture and exaggeration, and are belied by
Pastor's own letters written before this suit was begun (Exh. "2-Escaño" and "Vicenta," Rec. on App.,
pp. 270-274). In these letters he expressly apologized to the defendants for "misjudging them" and for
the "great unhappiness" caused by his "impulsive blunders" and "sinful pride," "effrontery and
audacity" [sic]. Plaintiff was admitted to the Escaño house to visit and court Vicenta, and the record
shows nothing to prove that he would not have been accepted to marry Vicente had he openly asked
for her hand, as good manners and breeding demanded. Even after learning of the clandestine
marriage, and despite their shock at such unexpected event, the parents of Vicenta proposed and
arranged that the marriage be recelebrated in strict conformity with the canons of their religion upon
advice that the previous one was canonically defective. If no recelebration of the marriage ceremony
was had it was not due to defendants Mamerto Escaño and his wife, but to the refusal of Vicenta to
proceed with it. That the spouses Escaño did not seek to compel or induce their daughter to assent to
the recelebration but respected her decision, or that they abided by her resolve, does not constitute in
law an alienation of affections. Neither does the fact that Vicenta's parents sent her money while she
was in the United States; for it was natural that they should not wish their daughter to live in penury
even if they did not concur in her decision to divorce Tenchavez (27 Am. Jur. 130-132).
There is no evidence that the parents of Vicenta, out of improper motives, aided and abetted her
original suit for annulment, or her subsequent divorce; she appears to have acted independently, and
being of age, she was entitled to judge what was best for her and ask that her decisions be respected.
Her parents, in so doing, certainly cannot be charged with alienation of affections in the absence of
malice or unworthy motives, which have not been shown, good faith being always presumed until the
contrary is proved.
SEC. 529. Liability of Parents, Guardians or Kin . — The law distinguishes between the right of a
parent to interest himself in the marital affairs of his child and the absence of rights in a stranger to
intermeddle in such affairs. However, such distinction between the liability of parents and that of
strangers is only in regard to what will justify interference. A parent isliable for alienation of affections
resulting from his own malicious conduct, as where he wrongfully entices his son or daughter to leave
his or her spouse, but he is not liable unless he acts maliciously, without justification and from
unworthy motives. He is not liable where he acts and advises his child in good faith with respect to his
child's marital relations in the interest of his child as he sees it, the marriage of his child not
terminating his right and liberty to interest himself in, and be extremely solicitous for, his child's
welfare and happiness, even where his conduct and advice suggest or result in the separation of the
spouses or the obtaining of a divorce or annulment, or where he acts under mistake or misinformation,
or where his advice or interference are indiscreet or unfortunate, although it has been held that the
parent is liable for consequences resulting from recklessness. He may in good faith take his child into
his home and afford him or her protection and support, so long as he has not maliciously enticed his
child away, or does not maliciously entice or cause him or her to stay away, from his or her spouse.
This rule has more frequently been applied in the case of advice given to a married daughter, but it is
equally applicable in the case of advice given to a son.
Plaintiff Tenchavez, in falsely charging Vicenta's aged parents with racial or social discrimination and
with having exerted efforts and pressured her to seek annulment and divorce, unquestionably caused
them unrest and anxiety, entitling them to recover damages. While this suit may not have been
impelled by actual malice, the charges were certainly reckless in the face of the proven facts and
circumstances. Court actions are not established for parties to give vent to their prejudices or spleen.
In the assessment of the moral damages recoverable by appellant Pastor Tenchavez from defendant
Vicente Escaño, it is proper to take into account, against his patently unreasonable claim for a million
pesos in damages, that (a) the marriage was celebrated in secret, and its failure was not characterized
by publicity or undue humiliation on appellant's part; (b) that the parties never lived together; and (c)
that there is evidence that appellant had originally agreed to the annulment of the marriage, although
such a promise was legally invalid, being against public policy (cf. Art. 88, Civ. Code). While
appellant is unable to remarry under our law, this fact is a consequence of the indissoluble character of
the union that appellant entered into voluntarily and with open eyes rather than of her divorce and her
second marriage. All told, we are of the opinion that appellant should recover P25,000 only by way of
moral damages and attorney's fees.
With regard to the P45,000 damages awarded to the defendants, Dr. Mamerto Escaño and Mena
Escaño, by the court below, we opine that the same are excessive. While the filing of this unfounded
suit must have wounded said defendants' feelings and caused them anxiety, the same could in no way
have seriously injured their reputation, or otherwise prejudiced them, lawsuits having become a
common occurrence in present society. What is important, and has been correctly established in the
decision of the court below, is that said defendants were not guilty of any improper conduct in the
whole deplorable affair. This Court, therefore, reduces the damages awarded to P5,000 only.
Summing up, the Court rules:
(1) That a foreign divorce between Filipino citizens, sought and decreed after the effectivity of the
present Civil Code (Rep. Act 386), is not entitled to recognition as valid in this jurisdiction; and neither
is the marriage contracted with another party by the divorced consort, subsequently to the foreign
decree of divorce, entitled to validity in the country;
(2) That the remarriage of divorced wife and her co-habitation with a person other than the lawful
husband entitle the latter to a decree of legal separation conformably to Philippine law;
(3) That the desertion and securing of an invalid divorce decree by one consort entitles the other to
recover damages;
(4) That an action for alienation of affections against the parents of one consort does not lie in the
absence of proof of malice or unworthy motives on their part.
WHEREFORE, the decision under appeal is hereby modified as follows;
(1) Adjudging plaintiff-appellant Pastor Tenchavez entitled to a decree of legal separation from
defendant Vicenta F. Escaño;
(2) Sentencing defendant-appellee Vicenta Escaño to pay plaintiff-appellant Tenchavez the amount of
P25,000 for damages and attorneys' fees;
(3) Sentencing appellant Pastor Tenchavez to pay the appellee, Mamerto Escaño and the estate of his
wife, the deceased Mena Escaño, P5,000 by way of damages and attorneys' fees.
Neither party to recover costs.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-48006 July 8, 1942
FAUSTO BARREDO, petitioner,
vs.
SEVERINO GARCIA and TIMOTEA ALMARIO, respondents.
Celedonio P. Gloria and Antonio Barredo for petitioner. Jose G. Advincula for respondents.
BOCOBO, J.:
This case comes up from the Court of Appeals which held the petitioner herein, Fausto Barredo, liable
in damages for the death of Faustino Garcia caused by the negligence of Pedro Fontanilla, a taxi driver
employed by said Fausto Barredo.
At about half past one in the morning of May 3, 1936, on the road between Malabon and Navotas,
Province of Rizal, there was a head-on collision between a taxi of the Malate Taxicab driven by Pedro
Fontanilla and a carretela guided by Pedro Dimapalis. The carretela was overturned, and one of its
passengers, 16-year-old boy Faustino Garcia, suffered injuries from which he died two days later. A
criminal action was filed against Fontanilla in the Court of First Instance of Rizal, and he was
convicted and sentenced to an indeterminate sentence of one year and one day to two years of prision
correccional . The court in the criminal case granted the petition that the right to bring a separate civil
action be reserved. The Court of Appeals affirmed the sentence of the lower court in the criminal case.
Severino Garcia and Timotea Almario, parents of the deceased on March 7, 1939, brought an action in
the Court of First Instance of Manila against Fausto Barredo as the sole proprietor of the Malate
Taxicab and employer of Pedro Fontanilla. On July 8, 1939, the Court of First Instance of Manila
awarded damages in favor of the plaintiffs for P2,000 plus legal interest from the date of the complaint.
This decision was modified by the Court of Appeals by reducing the damages to P1,000 with legal
interest from the time the action was instituted. It is undisputed that Fontanilla 's negligence was the
cause of the mishap, as he was driving on the wrong side of the road, and at high speed. As to
Barredo's responsibility, the Court of Appeals found:
... It is admitted that defendant is Fontanilla's employer. There is proof that he exercised the diligence
of a good father of a family to prevent damage. (See p. 22, appellant's brief.) In fact it is shown he was
careless in employing Fontanilla who had been caught several times for violation of the Automobile
Law and speeding (Exhibit A) — violation which appeared in the records of the Bureau of Public
Works available to be public and to himself. Therefore, he must indemnify plaintiffs under the
provisions of article 1903 of the Civil Code.
The main theory of the defense is that the liability of Fausto Barredo is governed by the Revised Penal
Code; hence, his liability is only subsidiary, and as there has been no civil action against Pedro
Fontanilla, the person criminally liable, Barredo cannot be held responsible in the case. The petitioner's
brief states on page 10:
... The Court of Appeals holds that the petitioner is being sued for his failure to exercise all the
diligence of a good father of a family in the selection and supervision of Pedro Fontanilla to prevent
damages suffered by the respondents. In other words, The Court of Appeals insists on applying in the
case article 1903 of the Civil Code. Article 1903 of the Civil Code is found in Chapter II, Title 16,
Book IV of the Civil Code. This fact makes said article to a civil liability arising from a crime as in the
case at bar simply because Chapter II of Title 16 of Book IV of the Civil Code, in the precise words of
article 1903 of the Civil Code itself, is applicable only to "those (obligations) arising from wrongful or
negligent acts or commission not punishable by law
The gist of the decision of the Court of Appeals is expressed thus:
... We cannot agree to the defendant's contention. The liability sought to be imposed upon him in this
action is not a civil obligation arising from a felony or a misdemeanor (the crime of Pedro Fontanilla,),
but an obligation imposed in article 1903 of the Civil Code by reason of his negligence in the selection
or supervision of his servant or employee.
The pivotal question in this case is whether the plaintiffs may bring this separate civil action against
Fausto Barredo, thus making him primarily and directly, responsible under article 1903 of the Civil
Code as an employer of Pedro Fontanilla. The defendant maintains that Fontanilla's negligence being
punishable by the Penal Code, his (defendant's) liability as an employer is only subsidiary, according
to said Penal code, but Fontanilla has not been sued in a civil action and his property has not been
exhausted. To decide the main issue, we must cut through the tangle that has, in the minds of many
confused and jumbled together delitos and cuasi delitos , or crimes under the Penal Code and fault or
negligence under articles 1902-1910 of the Civil Code. This should be done, because justice may be
lost in a labyrinth, unless principles and remedies are distinctly envisaged. Fortunately, we are aided in
our inquiry by the luminous presentation of the perplexing subject by renown jurists and we are
likewise guided by the decisions of this Court in previous cases as well as by the solemn clarity of the
consideration in several sentences of the Supreme Tribunal of Spain.
Authorities support the proposition that a quasi-delict or " culpa aquiliana " is a separate legal
institution under the Civil Code with a substantivity all its own, and individuality that is entirely apart
and independent from delict or crime. Upon this principle and on the wording and spirit article 1903 of
the Civil Code, the primary and direct responsibility of employers may be safely anchored.
The pertinent provisions of the Civil Code and Revised Penal Code are as follows:
CIVIL CODE
ART. 1089 Obligations arise from law, from contracts and quasi-contracts, and from acts and
omissions which are unlawful or in which any kind of fault or negligence intervenes.
xxx xxx xxx
ART. 1092. Civil obligations arising from felonies or misdemeanors shall be governed by the
provisions of the Penal Code.
ART. 1093. Those which are derived from acts or omissions in which fault or negligence, not
punishable by law, intervenes shall be subject to the provisions of Chapter II, Title XVI of this book.
xxx xxx xxx
ART 1902. Any person who by an act or omission causes damage to another by his fault or negligence
shall be liable for the damage so done.
ART. 1903. The obligation imposed by the next preceding article is enforcible, not only for personal
acts and omissions, but also for those of persons for whom another is responsible.
The father and in, case of his death or incapacity, the mother, are liable for any damages caused by the
minor children who live with them.
Guardians are liable for damages done by minors or incapacitated persons subject to their authority and
living with them.
Owners or directors of an establishment or business are equally liable for any damages caused by their
employees while engaged in the branch of the service in which employed, or on occasion of the
performance of their duties.
The State is subject to the same liability when it acts through a special agent, but not if the damage
shall have been caused by the official upon whom properly devolved the duty of doing the act
performed, in which case the provisions of the next preceding article shall be applicable.
Finally, teachers or directors of arts trades are liable for any damages caused by their pupils or
apprentices while they are under their custody.
The liability imposed by this article shall cease in case the persons mentioned therein prove that they
are exercised all the diligence of a good father of a family to prevent the damage.
ART. 1904. Any person who pays for damage caused by his employees may recover from the latter
what he may have paid.
REVISED PENAL CODE
ART. 100. Civil liability of a person guilty of felony. — Every person criminally liable for a felony is
also civilly liable.
ART. 101. Rules regarding civil liability in certain cases. — The exemption from criminal liability
established in subdivisions 1, 2, 3, 5, and 6 of article 12 and in subdivision 4 of article 11 of this Code
does not include exemption from civil liability, which shall be enforced to the following rules:
First. In cases of subdivision, 1, 2 and 3 of article 12 the civil liability for acts committed by any
imbecile or insane person, and by a person under nine years of age, or by one over nine but under
fifteen years of age, who has acted without discernment shall devolve upon those having such person
under their legal authority or control, unless it appears that there was no fault or negligence on their
part.
Should there be no person having such insane, imbecile or minor under his authority, legal
guardianship, or control, or if such person be insolvent, said insane, imbecile, or minor shall respond
with their own property, excepting property exempt from execution, in accordance with the civil law.
Second. In cases falling within subdivision 4 of article 11, the person for whose benefit the harm has
been prevented shall be civilly liable in proportion to the benefit which they may have received.
The courts shall determine, in their sound discretion, the proportionate amount for which each one
shall be liable.
When the respective shares can not be equitably determined, even approximately, or when the liability
also attaches to the Government, or to the majority of the inhabitants of the town, and, in all events,
whenever the damage has been caused with the consent of the authorities or their agents,
indemnification shall be made in the manner prescribed by special laws or regulations.
Third . In cases falling within subdivisions 5 and 6 of article 12, the persons using violence or causing
the fear shall be primarily liable and secondarily, or, if there be no such persons, those doing the act
shall be liable, saving always to the latter that part of their property exempt from execution.
ART. 102. Subsidiary civil liability of innkeepers, tavern keepers and proprietors of establishment . —
In default of persons criminally liable, innkeepers, tavern keepers, and any other persons or
corporation shall be civilly liable for crimes committed in their establishments, in all cases where a
violation of municipal ordinances or some general or special police regulation shall have been
committed by them or their employees.
Innkeepers are also subsidiarily liable for the restitution of goods taken by robbery or theft within their
houses lodging therein, or the person, or for the payment of the value thereof, provided that such guests
shall have notified in advance the innkeeper himself, or the person representing him, of the deposit of
such goods within the inn; and shall furthermore have followed the directions which such innkeeper or
his representative may have given them with respect to the care of and vigilance over such goods. No
liability shall attach in case of robbery with violence against or intimidation against or intimidation of
persons unless committed by the innkeeper's employees.
ART. 103. Subsidiary civil liability of other persons . — The subsidiary liability established in the next
preceding article shall also apply to employers, teachers, persons, and corporations engaged in any
kind of industry for felonies committed by their servants, pupils, workmen, apprentices, or employees
in the discharge of their duties.
xxx xxx xxx
ART. 365. Imprudence and negligence. — Any person who, by reckless imprudence, shall commit any
act which, had it been intentional, would constitute a grave felony, shall suffer the penalty of arresto
mayor in its maximum period to prision correccional in its minimum period; if it would have
constituted a less grave felony, the penalty of arresto mayor in its minimum and medium periods shall
be imposed.
Any person who, by simple imprudence or negligence, shall commit an act which would otherwise
constitute a grave felony, shall suffer the penalty of arresto mayor in its medium and maximum
periods; if it would have constituted a less serious felony, the penalty of arresto mayor in its minimum
period shall be imposed."
It will thus be seen that while the terms of articles 1902 of the Civil Code seem to be broad enough to
cover the driver's negligence in the instant case, nevertheless article 1093 limits cuasi-delitos to acts or
omissions "not punishable by law." But inasmuch as article 365 of the Revised Penal Code punishes
not only reckless but even simple imprudence or negligence, the fault or negligence under article 1902
of the Civil Code has apparently been crowded out. It is this overlapping that makes the "confusion
worse confounded." However, a closer study shows that such a concurrence of scope in regard to
negligent acts does not destroy the distinction between the civil liability arising from a crime and the
responsibility for cuasi-delitos or culpa extra-contractual. The same negligent act causing damages
may produce civil liability arising from a crime under article 100 of the Revised Penal Code, or create
an action for cuasi-delito or culpa extra-contractual under articles 1902-1910 of the Civil Code.
The individuality of cuasi-delito or culpa extra-contractual looms clear and unmistakable. This legal
institution is of ancient lineage, one of its early ancestors being the Lex Aquilia in the Roman Law. In
fact, in Spanish legal terminology, this responsibility is often referred to as culpa aquiliana. The
Partidas also contributed to the genealogy of the present fault or negligence under the Civil Code; for
instance, Law 6, Title 15, of Partida 7, says: "Tenudo es de fazer emienda, porque, como quier que el
non fizo a sabiendas en daño al otro, pero acaescio por su culpa."
The distinctive nature of cuasi-delitos survives in the Civil Code. According to article 1089, one of the
five sources of obligations is this legal institution of cuasi-delito or culpa extra-contractual : "los actos
. . . en que intervenga cualquier genero de culpa o negligencia." Then article 1093 provides that this
kind of obligation shall be governed by Chapter II of Title XVI of Book IV, meaning articles 1902-
0910. This portion of the Civil Code is exclusively devoted to the legal institution of culpa aquiliana
Some of the differences between crimes under the Penal Code and the culpa aquiliana or cuasi-
delito under the Civil Code are:
1. That crimes affect the public interest, while cuasi-delitos are only of private concern.
2. That, consequently, the Penal Code punishes or corrects the criminal act, while the Civil Code, by
means of indemnification, merely repairs the damage.
3. That delicts are not as broad as quasi-delicts, because the former are punished only if there is a penal
law clearly covering them, while the latter, cuasi-delitos , include all acts in which "any king of fault or
negligence intervenes." However, it should be noted that not all violations of the penal law produce
civil responsibility, such as begging in contravention of ordinances, violation of the game laws,
infraction of the rules of traffic when nobody is hurt. (See Colin and Capitant, "Curso Elemental de
Derecho Civil," Vol. 3, p. 728.)
Let us now ascertain what some jurists say on the separate existence of quasi-delicts and the
employer's primary and direct liability under article 1903 of the Civil Code.
Dorado Montero in his essay on "Responsibilidad" in the "Enciclopedia Juridica Española" (Vol.
XXVII, p. 414) says:
El concepto juridico de la responsabilidad civil abarca diversos aspectos y comprende a diferentes
personas. Asi, existe una responsabilidad civil propiamente dicha, que en ningun casl lleva aparejada
responsabilidad criminal alguna, y otra que es consecuencia indeclinable de la penal que nace de todo
delito o falta."
The juridical concept of civil responsibility has various aspects and comprises different persons. Thus,
there is a civil responsibility, properly speaking, which in no case carries with it any criminal
responsibility, and another which is a necessary consequence of the penal liability as a result of every
felony or misdemeanor."
Maura, an outstanding authority, was consulted on the following case: There had been a collision
between two trains belonging respectively to the Ferrocarril Cantabrico and the Ferrocarril del Norte.
An employee of the latter had been prosecuted in a criminal case, in which the company had been
made a party as subsidiarily responsible in civil damages. The employee had been acquitted in the
criminal case, and the employer, the Ferrocarril del Norte, had also been exonerated. The question
asked was whether the Ferrocarril Cantabrico could still bring a civil action for damages against the
Ferrocarril del Norte. Maura's opinion was in the affirmative, stating in part (Maura, Dictamenes , Vol.
6, pp. 511-513):
Quedando las cosas asi, a proposito de la realidad pura y neta de los hechos , todavia menos parece
sostenible que exista cosa juzgada acerca de la obligacion civil de indemnizar los quebrantos y
menoscabos inferidos por el choque de los trenes. El titulo en que se funda la accion para demandar el
resarcimiento, no puede confundirse con las responsabilidades civiles nacidas de delito , siquiera
exista en este, sea el cual sea, una culpa rodeada de notas agravatorias que motivan sanciones penales,
mas o menos severas. La lesion causada por delito o falta en los derechos civiles, requiere
restituciones, reparaciones o indemnizaciones, que cual la pena misma atañen al orden publico; por tal
motivo vienen encomendadas, de ordinario, al Ministerio Fiscal; y claro es que si por esta via se
enmiendan los quebrantos y menoscabos, el agraviado excusa procurar el ya conseguido desagravio;
pero esta eventual coincidencia de los efectos, no borra la diversidad originaria de las acciones civiles
para pedir indemnizacion.
Estas, para el caso actual (prescindiendo de culpas contractuales , que no vendrian a cuento y que tiene
otro regimen), dimanan, segun el articulo 1902 del Codigo Civil, de toda accion u omision, causante de
daños o perjuicios, en que intervenga culpa o negligencia. Es trivial que acciones semejantes son
ejercitadas ante los Tribunales de lo civil cotidianamente, sin que la Justicia punitiva tenga que
mezclarse en los asuntos. Los articulos 18 al 21 y 121 al 128 del Codigo Penal, atentos al espiritu y a
los fines sociales y politicos del mismo, desenvuelven y ordenan la materia de responsabilidades
civiles nacidas de delito , en terminos separados del regimen por ley comun de la culpa que se
denomina aquiliana, por alusion a precedentes legislativos del Corpus Juris . Seria intempestivo un
paralelo entre aquellas ordenaciones, y la de la obligacion de indemnizar a titulo de culpa civil; pero
viene al caso y es necesaria una de las diferenciaciones que en el tal paralelo se notarian.
Los articulos 20 y 21 del Codigo Penal, despues de distribuir a su modo las responsabilidades civiles,
entre los que sean por diversos conceptos culpables del delito o falta, las hacen extensivas a las
empresas y los establecimientos al servicio de los cuales estan los delincuentes; pero con caracter
subsidiario, o sea, segun el texto literal, en defecto de los que sean responsables criminalmente . No
coincide en ello el Codigo Civil, cuyo articulo 1903, dice; La obligacion que impone el articulo
anterior es exigible , no solo por los actos y omisiones propios, sino por los de aquellas personas de
quienes se debe responder ; personas en la enumeracion de las cuales figuran los dependientes y
empleados de los establecimientos o empresas, sea por actos del servicio, sea con ocasion de sus
funciones. Por esto acontece, y se observa en la jurisprudencia, que las empresas, despues de intervenir
en las causas criminales con el caracter subsidiario de su responsabilidad civil por razon del delito, son
demandadas y condenadas directa y aisladamente , cuando se trata de la obligacion, ante los tribunales
civiles.
Siendo como se ve, diverso el titulo de esta obligacion, y formando verdadero postulado de nuestro
regimen judicial la separacion entre justicia punitiva y tribunales de lo civil, de suerte que tienen unos
y otros normas de fondo en distintos cuerpos legales, y diferentes modos de proceder, habiendose, por
añadidura, abstenido de asistir al juicio criminal la Compañia del Ferrocarril Cantabrico, que se reservo
ejercitar sus acciones, parece innegable que la de indemnizacion por los daños y perjuicios que le
irrogo el choque, no estuvo sub judice ante el Tribunal del Jurado, ni fue sentenciada, sino que
permanecio intacta, al pronunciarse el fallo de 21 de marzo. Aun cuando el veredicto no hubiese sido
de inculpabilidad, mostrose mas arriba, que tal accion quedaba legitimamente reservada para despues
del proceso; pero al declararse que no existio delito, ni responsabilidad dimanada de delito,
materia unica sobre que tenian jurisdiccion aquellos juzgadores, se redobla el motivo para la
obligacion civil ex lege , y se patentiza mas y mas que la accion para pedir su cumplimiento permanece
incolume, extraña a la cosa juzgada
As things are, apropos of the reality pure and simple of the facts, it seems less tenable that there should
be res judicata with regard to the civil obligation for damages on account of the losses caused by the
collision of the trains. The title upon which the action for reparation is based cannot be confused with
the civil responsibilities born of a crime , because there exists in the latter, whatever each nature,
a culpa surrounded with aggravating aspects which give rise to penal measures that are more or less
severe. The injury caused by a felony or misdemeanor upon civil rights requires restitutions,
reparations, or indemnifications which, like the penalty itself, affect public order; for this reason, they
are ordinarily entrusted to the office of the prosecuting attorney; and it is clear that if by this means the
losses and damages are repaired, the injured party no longer desires to seek another relief; but this
coincidence of effects does not eliminate the peculiar nature of civil actions to ask for indemnity.
Such civil actions in the present case (without referring to contractual faults which are not pertinent
and belong to another scope) are derived, according to article 1902 of the Civil Code, from every act or
omission causing losses and damages in which culpa or negligence intervenes. It is unimportant that
such actions are every day filed before the civil courts without the criminal courts interfering
therewith. Articles 18 to 21 and 121 to 128 of the Penal Code, bearing in mind the spirit and the social
and political purposes of that Code, develop and regulate the matter of civil responsibilities arising
from a crime , separately from the regime under common law, of culpa which is known as aquiliana ,
in accordance with legislative precedent of the Corpus Juris . It would be unwarranted to make a
detailed comparison between the former provisions and that regarding the obligation to indemnify on
account of civil culpa ; but it is pertinent and necessary to point out to one of such differences.
Articles 20 and 21 of the Penal Code, after distriburing in their own way the civil responsibilities
among those who, for different reasons, are guilty of felony or misdemeanor, make such civil
responsibilities applicable to enterprises and establishments for which the guilty parties render service,
but with subsidiary character, that is to say, according to the wording of the Penal Code, in default of
those who are criminally responsible . In this regard, the Civil Code does not coincide because article
1903 says: "The obligation imposed by the next preceding article is demandable, not only for personal
acts and omissions, but also for those of persons for whom another is responsible." Among the persons
enumerated are the subordinates and employees of establishments or enterprises, either for acts during
their service or on the occasion of their functions. It is for this reason that it happens, and it is so
observed in judicial decisions, that the companies or enterprises, after taking part in the criminal cases
because of their subsidiary civil responsibility by reason of the crime, are sued and
sentenced directly and separately with regard to the obligation , before the civil courts.
Seeing that the title of this obligation is different, and the separation between punitive justice and the
civil courts being a true postulate of our judicial system, so that they have different fundamental norms
in different codes, as well as different modes of procedure, and inasmuch as the Compaña del
Ferrocarril Cantabrico has abstained from taking part in the criminal case and has reserved the right to
exercise its actions, it seems undeniable that the action for indemnification for the losses and damages
caused to it by the collision was not sub judice before the Tribunal del Jurado , nor was it the subject
of a sentence, but it remained intact when the decision of March 21 was rendered. Even if the verdict
had not been that of acquittal, it has already been shown that such action had been legitimately
reserved till after the criminal prosecution; but because of the declaration of the non-existence of the
felony and the non-existence of the responsibility arising from the crime, which was the sole subject
matter upon which the Tribunal del Jurado had jurisdiction, there is greater reason for the civil
obligation ex lege , and it becomes clearer that the action for its enforcement remain intact and is
not res judicata
Laurent, a jurist who has written a monumental work on the French Civil Code, on which the Spanish
Civil Code is largely based and whose provisions on cuasi-delito or culpa extra-contractual are similar
to those of the Spanish Civil Code, says, referring to article 1384 of the French Civil Code which
corresponds to article 1903, Spanish Civil Code:
The action can be brought directly against the person responsible (for another), without including the
author of the act. The action against the principal is accessory in the sense that it implies the existence
of a prejudicial act committed by the employee, but it is not subsidiary in the sense that it can not be
instituted till after the judgment against the author of the act or at least, that it is subsidiary to the
principal action; the action for responsibility (of the employer) is in itself a principal action. (Laurent,
Principles of French Civil Law, Spanish translation, Vol. 20, pp. 734-735.)
Amandi, in his "Cuestionario del Codigo Civil Reformado" (Vol. 4, pp. 429, 430), declares that the
responsibility of the employer is principal and not subsidiary. He writes:
Cuestion 1. La responsabilidad declarada en el articulo 1903 por las acciones u omisiones de aquellas
personas por las que se debe responder, es subsidiaria? es principal? Para contestar a esta pregunta es
necesario saber, en primer lugar, en que se funda el precepto legal. Es que realmente se impone una
responsabilidad por una falta ajena? Asi parece a primera vista; pero semejante afirmacion seria
contraria a la justicia y a la maxima universal, segun la que las faltas son personales, y cada uno
responde de aquellas que le son imputables. La responsabilidad de que tratamos se impone con ocasion
de un delito o culpa, pero no por causa de ellos, sino por causa del causi delito, esto es, de la
imprudencia o de la negligencia del padre, del tutor, del dueño o director del establecimiento, del
maestro, etc. Cuando cualquiera de las personas que enumera el articulo citado (menores de edad,
incapacitados, dependientes, aprendices) causan un daño, la ley presume que el padre, el tutor, el
maestro, etc., han cometido una falta de negligencia para prevenir o evitar el daño. Esta falta es la que
la ley castiga. No hay, pues, responsabilidad por un hecho ajeno, sino en la apariencia; en realidad la
responsabilidad se exige por un hecho propio. La idea de que esa responsabilidad sea subsidiaria es,
por lo tanto, completamente inadmisible.
Question No. 1. Is the responsibility declared in article 1903 for the acts or omissions of those persons
for who one is responsible, subsidiary or principal? In order to answer this question it is necessary to
know, in the first place, on what the legal provision is based. Is it true that there is a responsibility for
the fault of another person? It seems so at first sight; but such assertion would be contrary to justice
and to the universal maxim that all faults are personal, and that everyone is liable for those faults that
can be imputed to him. The responsibility in question is imposed on the occasion of a crime or fault,
but not because of the same, but because of the cuasi-delito , that is to say, the imprudence or
negligence of the father, guardian, proprietor or manager of the establishment, of the teacher, etc.
Whenever anyone of the persons enumerated in the article referred to (minors, incapacitated persons,
employees, apprentices) causes any damage, the law presumes that the father, guardian, teacher, etc.
have committed an act of negligence in not preventing or avoiding the damage. It is this fault that is
condemned by the law. It is, therefore, only apparent that there is a responsibility for the act of another;
in reality the responsibility exacted is for one's own act. The idea that such responsibility is subsidiary
is, therefore, completely inadmissible.
Oyuelos, in his "Digesto: Principios, Doctrina y Jurisprudencia, Referentes al Codigo Civil Español,"
says in Vol. VII, p. 743:
Es decir, no responde de hechos ajenos, porque se responde solo de su propia culpa, doctrina del
articulo 1902; mas por excepcion, se responde de la ajena respecto de aquellas personas con las que
media algun nexo o vinculo, que motiva o razona la responsabilidad. Esta responsabilidad, es directa o
es subsidiaria? En el orden penal, el Codigo de esta clase distingue entre menores e incapacitados y los
demas, declarando directa la primera (articulo 19) y subsidiaria la segunda (articulos 20 y 21); pero en
el orden civil, en el caso del articulo 1903, ha de entenderse directa, por el tenor del articulo que
impone la responsabilidad precisamente "por los actos de aquellas personas de quienes se deba
responder."
That is to say, one is not responsible for the acts of others, because one is liable only for his own faults,
this being the doctrine of article 1902; but, by exception, one is liable for the acts of those persons with
whom there is a bond or tie which gives rise to the responsibility. Is this responsibility direct or
subsidiary? In the order of the penal law, the Penal Code distinguishes between minors and
incapacitated persons on the one hand, and other persons on the other, declaring that the responsibility
for the former is direct (article 19), and for the latter, subsidiary (articles 20 and 21); but in the scheme
of the civil law, in the case of article 1903, the responsibility should be understood as direct, according
to the tenor of that articles, for precisely it imposes responsibility "for the acts of those persons for
whom one should be responsible."
Coming now to the sentences of the Supreme Tribunal of Spain, that court has upheld the principles
above set forth: that a quasi-delict or culpa extra-contractual is a separate and distinct legal institution,
independent from the civil responsibility arising from criminal liability, and that an employer is, under
article 1903 of the Civil Code, primarily and directly responsible for the negligent acts of his
employee.
One of the most important of those Spanish decisions is that of October 21, 1910. In that case, Ramon
Lafuente died as the result of having been run over by a street car owned by the "compañia Electric
Madrileña de Traccion." The conductor was prosecuted in a criminal case but he was acquitted.
Thereupon, the widow filed a civil action against the street car company, paying for damages in the
amount of 15,000 pesetas. The lower court awarded damages; so the company appealed to the
Supreme Tribunal, alleging violation of articles 1902 and 1903 of the Civil Code because by final
judgment the non-existence of fault or negligence had been declared. The Supreme Court of Spain
dismissed the appeal, saying:
Considerando que el primer motivo del recurso se funda en el equivocado supuesto de que el
Tribunal a quo , al condonar a la compañia Electrica Madrileña al pago del daño causado con la muerte
de Ramon La fuente Izquierdo, desconoce el valor y efectos juridicos de la sentencia absolutoria
deictada en la causa criminal que se siguio por el mismo hecho, cuando es lo cierto que de este han
conocido las dos jurisdicciones bajo diferentes as pectos, y como la de lo criminal declrao dentro de los
limites de su competencia que el hecho de que se trata no era constitutivo de delito por no haber
mediado descuido o negligencia graves, lo que no excluye, siendo este el unico fundamento del fallo
absolutorio, el concurso de la culpa o negligencia no califacadas, fuente de obligaciones civiles segun
el articulo 1902 del Codigo, y que alcanzan, segun el 1903, netre otras perosnas, a los Directores de
establecimientos o empresas por los daños causados por sus dependientes en determinadas
condiciones, es manifesto que la de lo civil, al conocer del mismo hehco baho este ultimo aspecto y al
condenar a la compañia recurrente a la indemnizacion del daño causado por uno de sus empleados,
lejos de infringer los mencionados textos, en relacion con el articulo 116 de la Ley de Enjuciamiento
Criminal, se ha atenido estrictamente a ellos, sin invadir atribuciones ajenas a su jurisdiccion propia, ni
contrariar en lo mas minimo el fallo recaido en la causa.
Considering that the first ground of the appeal is based on the mistaken supposition that the trial court,
in sentencing the Compañia Madrileña to the payment of the damage caused by the death of Ramon
Lafuente Izquierdo, disregards the value and juridical effects of the sentence of acquittal rendered in
the criminal case instituted on account of the same act, when it is a fact that the two jurisdictions had
taken cognizance of the same act in its different aspects, and as the criminal jurisdiction declared
within the limits of its authority that the act in question did not constitute a felony because there was
no grave carelessness or negligence, and this being the only basis of acquittal, it does no exclude the
co-existence of fault or negligence which is not qualified, and is a source of civil obligations
according to article 1902 of the Civil Code , affecting, in accordance with article 1903, among other
persons, the managers of establishments or enterprises by reason of the damages caused by employees
under certain conditions, it is manifest that the civil jurisdiccion in taking cognizance of the same act
in this latter aspect and in ordering the company, appellant herein, to pay an indemnity for the
damage caused by one of its employees , far from violating said legal provisions, in relation with
article 116 of the Law of Criminal Procedure, strictly followed the same, without invading attributes
which are beyond its own jurisdiction, and without in any way contradicting the decision in that
cause . (Emphasis supplied.)
It will be noted, as to the case just cited:
First . That the conductor was not sued in a civil case, either separately or with the street car company.
This is precisely what happens in the present case: the driver, Fontanilla, has not been sued in a civil
action, either alone or with his employer.
Second . That the conductor had been acquitted of grave criminal negligence, but the Supreme
Tribunal of Spain said that this did not exclude the co-existence of fault or negligence, which is not
qualified, on the part of the conductor, under article 1902 of the Civil Code. In the present case, the
taxi driver was found guilty of criminal negligence, so that if he had even sued for his civil
responsibility arising from the crime, he would have been held primarily liable for civil damages, and
Barredo would have been held subsidiarily liable for the same. But the plaintiffs are directly suing
Barredo, on his primary responsibility because of his own presumed negligence — which he did not
overcome — under article 1903. Thus, there were two liabilities of Barredo: first, the subsidiary one
because of the civil liability of the taxi driver arising from the latter's criminal negligence; and, second,
Barredo's primary liability as an employer under article 1903. The plaintiffs were free to choose which
course to take, and they preferred the second remedy. In so doing, they were acting within their rights.
It might be observed in passing, that the plaintiff choose the more expeditious and effective method of
relief, because Fontanilla was either in prison, or had just been released, and besides, he was probably
without property which might be seized in enforcing any judgment against him for damages.
Third . That inasmuch as in the above sentence of October 21, 1910, the employer was held liable
civilly, notwithstanding the acquittal of the employee (the conductor) in a previous criminal case, with
greater reason should Barredo, the employer in the case at bar, be held liable for damages in a civil suit
filed against him because his taxi driver had been convicted. The degree of negligence of the conductor
in the Spanish case cited was less than that of the taxi driver, Fontanilla, because the former was
acquitted in the previous criminal case while the latter was found guilty of criminal negligence and was
sentenced to an indeterminate sentence of one year and one day to two years of prision correccional
( See also Sentence of February 19, 1902, which is similar to the one above quoted.)
In the Sentence of the Supreme Court of Spain, dated February 14, 1919, an action was brought against
a railroad company for damages because the station agent, employed by the company, had unjustly
and fraudulently , refused to deliver certain articles consigned to the plaintiff. The Supreme Court of
Spain held that this action was properly under article 1902 of the Civil Code, the court saying:
Considerando que la sentencia discutida reconoce, en virtud de los hechos que consigna con relacion a
las pruebas del pleito: 1.º, que las expediciones facturadas por la compañia ferroviaria a la
consignacion del actor de las vasijas vacias que en su demanda relacionan tenian como fin el que este
las devolviera a sus remitentes con vinos y alcoholes; 2.º, que llegadas a su destino tales mercanias no
se quisieron entregar a dicho consignatario por el jefe de la estacion sin motivo justificado y con
intencion dolosa, y 3.º, que la falta de entrega de estas expediciones al tiempo de reclamarlas el
demandante le originaron daños y perjuicios en cantidad de bastante importancia como expendedor al
por mayor que era de vinos y alcoholes por las ganancias que dejo de obtener al verse privado de servir
los pedidos que se le habian hecho por los remitentes en los envases:
Considerando que sobre esta base hay necesidad de estimar los cuatro motivos que integran este
recurso, porque la demanda inicial del pleito a que se contrae no contiene accion que nazca del
incumplimiento del contrato de transporte, toda vez que no se funda en el retraso de la llegada de las
mercancias ni de ningun otro vinculo contractual entre las partes contendientes, careciendo, por tanto,
de aplicacion el articulo 371 del Codigo de Comercio, en que principalmente descansa el fallo
recurrido, sino que se limita a pedir la reparaction de los daños y perjuicios producidos en el
patrimonio del actor por la injustificada y dolosa negativa del porteador a la entrega de las mercancias
a su nombre consignadas, segun lo reconoce la sentencia, y cuya responsabilidad esta claramente
sancionada en el articulo 1902 del Codigo Civil, que obliga por el siguiente a la Compañia demandada
como ligada con el causante de aquellos por relaciones de caracter economico y de jurarquia
administrativa.
Considering that the sentence, in question recognizes, in virtue of the facts which it declares, in
relation to the evidence in the case: (1) that the invoice issued by the railroad company in favor of the
plaintiff contemplated that the empty receptacles referred to in the complaint should be returned to the
consignors with wines and liquors; (2) that when the said merchandise reached their destination, their
delivery to the consignee was refused by the station agent without justification and with fraudulent
intent , and (3) that the lack of delivery of these goods when they were demanded by the plaintiff
caused him losses and damages of considerable importance, as he was a wholesale vendor of wines
and liquors and he failed to realize the profits when he was unable to fill the orders sent to him by the
consignors of the receptacles:
Considering that upon this basis there is need of upholding the four assignments of error, as the
original complaint did not contain any cause of action arising from non-fulfillment of a contract of
transportation, because the action was not based on the delay of the goods nor on any contractual
relation between the parties litigant and, therefore, article 371 of the Code of Commerce, on which the
decision appealed from is based, is not applicable; but it limits to asking for reparation for losses and
damages produced on the patrimony of the plaintiff on account of the unjustified and fraudulent
refusal of the carrier to deliver the goods consigned to the plaintiff as stated by the sentence, and the
carrier's responsibility is clearly laid down in article 1902 of the Civil Code which binds, in virtue of
the next article, the defendant company, because the latter is connected with the person who caused the
damage by relations of economic character and by administrative hierarchy. (Emphasis supplied.)
The above case is pertinent because it shows that the same act may come under both the Penal Code
and the Civil Code. In that case, the action of the agent was unjustified andfraudulent and therefore
could have been the subject of a criminal action. And yet, it was held to be also a proper subject of a
civil action under article 1902 of the Civil Code. It is also to be noted that it was the employer and not
the employee who was being sued.
Let us now examine the cases previously decided by this Court.
In the leading case of Rakes vs. Atlantic Gulf and Pacific Co. (7 Phil., 359, 362-365 [year 1907]), the
trial court awarded damages to the plaintiff, a laborer of the defendant, because the latter had
negligently failed to repair a tramway in consequence of which the rails slid off while iron was being
transported, and caught the plaintiff whose leg was broken. This Court held:
It is contended by the defendant, as its first defense to the action that the necessary conclusion from
these collated laws is that the remedy for injuries through negligence lies only in a criminal action in
which the official criminally responsible must be made primarily liable and his employer held only
subsidiarily to him. According to this theory the plaintiff should have procured the arrest of the
representative of the company accountable for not repairing the track, and on his prosecution a suitable
fine should have been imposed, payable primarily by him and secondarily by his employer.
This reasoning misconceived the plan of the Spanish codes upon this subject. Article 1093 of the Civil
Code makes obligations arising from faults or negligence not punished by the law , subject to the
provisions of Chapter II of Title XVI. Section 1902 of that chapter reads:
"A person who by an act or omission causes damage to another when there is fault or negligence shall
be obliged to repair the damage so done.
"SEC. 1903. The obligation imposed by the preceeding article is demandable, not only for personal
acts and omissions, but also for those of the persons for whom they should be responsible.
"The father, and on his death or incapacity, the mother, is liable for the damages caused by the minors
who live with them.
xxx xxx xxx
"Owners or directors of an establishment or enterprise are equally liable for the damages caused by
their employees in the service of the branches in which the latter may be employed or in the
performance of their duties.
xxx xxx xxx
"The liability referred to in this article shall cease when the persons mentioned therein prove that they
employed all the diligence of a good father of a family to avoid the damage."
As an answer to the argument urged in this particular action it may be sufficient to point out that
nowhere in our general statutes is the employer penalized for failure to provide or maintain safe
appliances for his workmen. His obligation therefore is one 'not punished by the laws' and falls under
civil rather than criminal jurisprudence. But the answer may be a broader one. We should be reluctant,
under any conditions, to adopt a forced construction of these scientific codes, such as is proposed by
the defendant, that would rob some of these articles of effect, would shut out litigants against their will
from the civil courts, would make the assertion of their rights dependent upon the selection for
prosecution of the proper criminal offender, and render recovery doubtful by reason of the strict rules
of proof prevailing in criminal actions. Even if these articles had always stood alone, such a
construction would be unnecessary, but clear light is thrown upon their meaning by the provisions of
the Law of Criminal Procedure of Spain ( Ley de Enjuiciamiento Criminal ), which, though never in
actual force in these Islands, was formerly given a suppletory or explanatory effect. Under article 111
of this law, both classes of action, civil and criminal, might be prosecuted jointly or separately, but
while the penal action was pending the civil was suspended. According to article 112, the penal action
once started, the civil remedy should be sought therewith, unless it had been waived by the party
injured or been expressly reserved by him for civil proceedings for the future. If the civil action alone
was prosecuted, arising out of a crime that could be enforced only on private complaint, the penal
action thereunder should be extinguished. These provisions are in harmony with those of articles 23
and 133 of our Penal Code on the same subject.
An examination of this topic might be carried much further, but the citation of these articles suffices to
show that the civil liability was not intended to be merged in the criminal nor even to be suspended
thereby, except as expressly provided in the law. Where an individual is civilly liable for a negligent
act or omission, it is not required that the injured party should seek out a third person criminally liable
whose prosecution must be a condition precedent to the enforcement of the civil right.
Under article 20 of the Penal Code the responsibility of an employer may be regarded as subsidiary in
respect of criminal actions against his employees only while they are in process of prosecution, or in so
far as they determine the existence of the criminal act from which liability arises, and his obligation
under the civil law and its enforcement in the civil courts is not barred thereby unless by the election of
the injured person. Inasmuch as no criminal proceeding had been instituted, growing our of the
accident in question, the provisions of the Penal Code can not affect this action. This construction
renders it unnecessary to finally determine here whether this subsidiary civil liability in penal actions
has survived the laws that fully regulated it or has been abrogated by the American civil and criminal
procedure now in force in the Philippines.
The difficulty in construing the articles of the code above cited in this case appears from the briefs
before us to have arisen from the interpretation of the words of article 1093, "fault or negligence not
punished by law," as applied to the comprehensive definition of offenses in articles 568 and 590 of the
Penal Code. It has been shown that the liability of an employer arising out of his relation to his
employee who is the offender is not to be regarded as derived from negligence punished by the law,
within the meaning of articles 1902 and 1093. More than this, however, it cannot be said to fall within
the class of acts unpunished by the law, the consequence of which are regulated by articles 1902 and
1903 of the Civil Code. The acts to which these articles are applicable are understood to be those not
growing out of pre-existing duties of the parties to one another. But where relations already formed
give rise to duties, whether springing from contract or quasi contract, then breaches of those duties are
subject to articles 1101, 1103, and 1104 of the same code. A typical application of this distinction may
be found in the consequences of a railway accident due to defective machinery supplied by the
employer. His liability to his employee would arise out of the contract of employment, that to the
passengers out of the contract for passage, while that to the injured bystander would originate in the
negligent act itself.
In Manzanares vs. Moreta , 38 Phil., 821 (year 1918), the mother of the 8 of 9-year-old child Salvador
Bona brought a civil action against Moreta to recover damages resulting from the death of the child,
who had been run over by an automobile driven and managed by the defendant. The trial court
rendered judgment requiring the defendant to pay the plaintiff the sum of P1,000 as indemnity: This
Court in affirming the judgment, said in part:
If it were true that the defendant, in coming from the southern part of Solana Street, had to stop his
auto before crossing Real Street, because he had met vehicles which were going along the latter street
or were coming from the opposite direction along Solana Street, it is to be believed that, when he again
started to run his auto across said Real Street and to continue its way along Solana Street northward, he
should have adjusted the speed of the auto which he was operating until he had fully crossed Real
Street and had completely reached a clear way on Solana Street. But, as the child was run over by the
auto precisely at the entrance of Solana Street, this accident could not have occurred if the auto had
been running at a slow speed, aside from the fact that the defendant, at the moment of crossing Real
Street and entering Solana Street, in a northward direction, could have seen the child in the act of
crossing the latter street from the sidewalk on the right to that on the left, and if the accident had
occurred in such a way that after the automobile had run over the body of the child, and the child's
body had already been stretched out on the ground, the automobile still moved along a distance of
about 2 meters, this circumstance shows the fact that the automobile entered Solana Street from Real
Street, at a high speed without the defendant having blown the horn. If these precautions had been
taken by the defendant, the deplorable accident which caused the death of the child would not have
occurred.
It will be noticed that the defendant in the above case could have been prosecuted in a criminal case
because his negligence causing the death of the child was punishable by the Penal Code. Here is
therefore a clear instance of the same act of negligence being a proper subject-matter either of a
criminal action with its consequent civil liability arising from a crime or of an entirely separate and
independent civil action for fault or negligence under article 1902 of the Civil Code. Thus, in this
jurisdiction, the separate individually of acuasi-delito or culpa aquiliana under the Civil Code has been
fully and clearly recognized, even with regard to a negligent act for which the wrongdoer could have
been prosecuted and convicted in a criminal case and for which, after such a conviction, he could have
been sued for this civil liability arising from his crime.
Years later (in 1930) this Court had another occasion to apply the same doctrine. In Bernal and
Enverso vs. House and Tacloban Electric & Ice Plant, Ltd. , 54 Phil., 327, the parents of the five-year-
old child, Purificacion Bernal, brought a civil action to recover damages for the child's death as a result
of burns caused by the fault and negligence of the defendants. On the evening of April 10, 1925, the
Good Friday procession was held in Tacloban, Leyte. Fortunata Enverso with her daughter
Purificacion Bernal had come from another municipality to attend the same. After the procession the
mother and the daughter with two others were passing along Gran Capitan Street in front of the offices
of the Tacloban Electric & Ice Plant, Ltd., owned by defendants J. V. House, when an automobile
appeared from the opposite direction. The little girl, who was slightly ahead of the rest, was so
frightened by the automobile that she turned to run, but unfortunately she fell into the street gutter
where hot water from the electric plant was flowing. The child died that same night from the burns.
The trial courts dismissed the action because of the contributory negligence of the plaintiffs. But this
Court held, on appeal, that there was no contributory negligence, and allowed the parents P1,000 in
damages from J. V. House who at the time of the tragic occurrence was the holder of the franchise for
the electric plant. This Court said in part:
Although the trial judge made the findings of fact hereinbefore outlined, he nevertheless was led to
order the dismissal of the action because of the contributory negligence of the plaintiffs. It is from this
point that a majority of the court depart from the stand taken by the trial judge. The mother and her
child had a perfect right to be on the principal street of Tacloban, Leyte, on the evening when the
religious procession was held. There was nothing abnormal in allowing the child to run along a few
paces in advance of the mother. No one could foresee the coincidence of an automobile appearing and
of a frightened child running and falling into a ditch filled with hot water. The doctrine announced in
the much debated case of Rakes vs. Atlantic Gulf and Pacific Co. ([1907]), 7 Phil., 359), still rule.
Article 1902 of the Civil Code must again be enforced. The contributory negligence of the child and
her mother, if any, does not operate as a bar to recovery, but in its strictest sense could only result in
reduction of the damages.
It is most significant that in the case just cited, this Court specifically applied article 1902 of the Civil
Code. It is thus that although J. V. House could have been criminally prosecuted for reckless or simple
negligence and not only punished but also made civilly liable because of his criminal negligence,
nevertheless this Court awarded damages in an independent civil action for fault or negligence under
article 1902 of the Civil Code.
In Bahia vs. Litonjua and Leynes (30 Phil., 624 [year 1915), the action was for damages for the death
of the plaintiff's daughter alleged to have been caused by the negligence of the servant in driving an
automobile over the child. It appeared that the cause of the mishap was a defect in the steering gear.
The defendant Leynes had rented the automobile from the International Garage of Manila, to be used
by him in carrying passengers during the fiesta of Tuy, Batangas. Leynes was ordered by the lower
court to pay P1,000 as damages to the plaintiff. On appeal this Court reversed the judgment as to
Leynes on the ground that he had shown that the exercised the care of a good father of a family, thus
overcoming the presumption of negligence under article 1903. This Court said:
As to selection, the defendant has clearly shown that he exercised the care and diligence of a good
father of a family. He obtained the machine from a reputable garage and it was, so far as appeared, in
good condition. The workmen were likewise selected from a standard garage, were duly licensed by
the Government in their particular calling, and apparently thoroughly competent. The machine had
been used but a few hours when the accident occurred and it is clear from the evidence that the
defendant had no notice, either actual or constructive, of the defective condition of the steering gear.
The legal aspect of the case was discussed by this Court thus:
Article 1903 of the Civil Code not only establishes liability in cases of negligence, but also provides
when the liability shall cease. It says:
"The liability referred to in this article shall cease when the persons mentioned therein prove that they
employed all the diligence of a good father of a family to avoid the damage."
From this article two things are apparent: (1) That when an injury is caused by the negligence of a
servant or employee there instantly arises a presumption of law that there was negligence on the part of
the matter or employer either in the selection of the servant or employee, or in supervision over him
after the selection, or both; and (2) that presumption is juris tantum and not juris et de jure , and
consequently, may be rebutted. It follows necessarily that if the employer shows to the satisfaction of
the court that in selection and supervision he has exercised the care and diligence of a good father of a
family, the presumption is overcome and he is relieve from liability.
This theory bases the responsibility of the master ultimately on his own negligence and not on that of
his servant.
The doctrine of the case just cited was followed by this Court in Cerf vs. Medel (33 Phil., 37 [year
1915]). In the latter case, the complaint alleged that the defendant's servant had so negligently driven
an automobile, which was operated by defendant as a public vehicle, that said automobile struck and
damaged the plaintiff's motorcycle. This Court, applying article 1903 and following the rule in Bahia
vs. Litonjua and Leynes , said in part (p. 41) that:
The master is liable for the negligent acts of his servant where he is the owner or director of a business
or enterprise and the negligent acts are committed while the servant is engaged in his master's
employment as such owner.
Another case which followed the decision in Bahia vs. Litonjua and Leynes was Cuison vs. Norton &
Harrison Co., 55 Phil., 18 (year 1930). The latter case was an action for damages brought by Cuison
for the death of his seven-year-old son Moises. The little boy was on his way to school with his sister
Marciana. Some large pieces of lumber fell from a truck and pinned the boy underneath, instantly
killing him. Two youths, Telesforo Binoya and Francisco Bautista, who were working for Ora, an
employee of defendant Norton & Harrison Co., pleaded guilty to the crime of homicide through
reckless negligence and were sentenced accordingly. This Court, applying articles 1902 and 1903,
held:
The basis of civil law liability is not respondent superior but the relationship of pater familias . This
theory bases the liability of the master ultimately on his own negligence and not on that of his servant.
(Bahia vs. Litonjua and Leynes [1915], 30 Phil., 624; Cangco vs. Manila Railroad Co. [1918], 38 Phil.,
768.)
In Walter A. Smith & Co. vs. Cadwallader Gibson Lumber Co., 55 Phil., 517 (year 1930) the plaintiff
brought an action for damages for the demolition of its wharf, which had been struck by the steamer
Helen C belonging to the defendant. This Court held (p. 526):
The evidence shows that Captain Lasa at the time the plaintiff's wharf collapsed was a duly licensed
captain, authorized to navigate and direct a vessel of any tonnage, and that the appellee contracted his
services because of his reputation as a captain, according to F. C. Cadwallader. This being so, we are
of the opinion that the presumption of liability against the defendant has been overcome by the
exercise of the care and diligence of a good father of a family in selecting Captain Lasa, in accordance
with the doctrines laid down by this court in the cases cited above, and the defendant is therefore
absolved from all liability.
It is, therefore, seen that the defendant's theory about his secondary liability is negatived by the six
cases above set forth. He is, on the authority of these cases, primarily and directly responsible in
damages under article 1903, in relation to article 1902, of the Civil Code.
Let us now take up the Philippine decisions relied upon by the defendant. We study first, City of
Manila vs. Manila Electric Co. , 52 Phil., 586 (year 1928). A collision between a truck of the City of
Manila and a street car of the Manila Electric Co. took place on June 8, 1925. The truck was damaged
in the amount of P1,788.27. Sixto Eustaquio, the motorman, was prosecuted for the crime of damage to
property and slight injuries through reckless imprudence. He was found guilty and sentenced to pay a
fine of P900, to indemnify the City of Manila for P1,788.27, with subsidiary imprisonment in case of
insolvency. Unable to collect the indemnity from Eustaquio, the City of Manila filed an action against
the Manila Electric Company to obtain payment, claiming that the defendant was subsidiarily liable.
The main defense was that the defendant had exercised the diligence of a good father of a family to
prevent the damage. The lower court rendered judgment in favor of the plaintiff. This Court held, in
part, that this case was governed by the Penal Code, saying:
With this preliminary point out of the way, there is no escaping the conclusion that the provisions of
the Penal Code govern. The Penal Code in easily understandable language authorizes the determination
of subsidiary liability. The Civil Code negatives its application by providing that civil obligations
arising from crimes or misdemeanors shall be governed by the provisions of the Penal Code. The
conviction of the motorman was a misdemeanor falling under article 604 of the Penal Code. The act of
the motorman was not a wrongful or negligent act or omission not punishable by law. Accordingly, the
civil obligation connected up with the Penal Code and not with article 1903 of the Civil Code. In other
words, the Penal Code affirms its jurisdiction while the Civil Code negatives its jurisdiction. This is a
case of criminal negligence out of which civil liability arises and not a case of civil negligence.
xxx xxx xxx
Our deduction, therefore, is that the case relates to the Penal Code and not to the Civil Code. Indeed, as
pointed out by the trial judge, any different ruling would permit the master to escape scot-free by
simply alleging and proving that the master had exercised all diligence in the selection and training of
its servants to prevent the damage. That would be a good defense to a strictly civil action, but might or
might not be to a civil action either as a part of or predicated on conviction for a crime or
misdemeanor. (By way of parenthesis, it may be said further that the statements here made are offered
to meet the argument advanced during our deliberations to the effect that article 0902 of the Civil Code
should be disregarded and codal articles 1093 and 1903 applied.)
It is not clear how the above case could support the defendant's proposition, because the Court of
Appeals based its decision in the present case on the defendant's primary responsibility under article
1903 of the Civil Code and not on his subsidiary liability arising from Fontanilla's criminal negligence.
In other words, the case of City of Manila vs. Manila Electric Co., supra, is predicated on an entirely
different theory, which is the subsidiary liability of an employer arising from a criminal act of his
employee, whereas the foundation of the decision of the Court of Appeals in the present case is the
employer's primary liability under article 1903 of the Civil Code. We have already seen that this is a
proper and independent remedy.
Arambulo vs. Manila Electric Co. (55 Phil., 75), is another case invoked by the defendant. A
motorman in the employ of the Manila Electric Company had been convicted o homicide by simple
negligence and sentenced, among other things, to pay the heirs of the deceased the sum of P1,000. An
action was then brought to enforce the subsidiary liability of the defendant as employer under the Penal
Code. The defendant attempted to show that it had exercised the diligence of a good father of a family
in selecting the motorman, and therefore claimed exemption from civil liability. But this Court held:
In view of the foregoing considerations, we are of opinion and so hold, (1) that the exemption from
civil liability established in article 1903 of the Civil Code for all who have acted with the diligence of a
good father of a family, is not applicable to the subsidiary civil liability provided in article 20 of the
Penal Code.
The above case is also extraneous to the theory of the defendant in the instant case, because the action
there had for its purpose the enforcement of the defendant's subsidiary liability under the Penal Code,
while in the case at bar, the plaintiff's cause of action is based on the defendant's primary and direct
responsibility under article 1903 of the Civil Code. In fact, the above case destroys the defendant's
contention because that decision illustrates the principle that the employer's primary responsibility
under article 1903 of the Civil Code is different in character from his subsidiary liability under the
Penal Code.
In trying to apply the two cases just referred to, counsel for the defendant has failed to recognize the
distinction between civil liability arising from a crime, which is governed by the Penal Code, and the
responsibility for cuasi-delito or culpa aquiliana under the Civil Code, and has likewise failed to give
the importance to the latter type of civil action.
The defendant-petitioner also cites Francisco vs. Onrubia (46 Phil., 327). That case need not be set
forth. Suffice it to say that the question involved was also civil liability arising from a crime. Hence, it
is as inapplicable as the two cases above discussed.
The foregoing authorities clearly demonstrate the separate individuality of
cuasi-delitos or culpa aquiliana under the Civil Code. Specifically they show that there is a distinction
between civil liability arising from criminal negligence (governed by the Penal Code) and
responsibility for fault or negligence under articles 1902 to 1910 of the Civil Code, and that the same
negligent act may produce either a civil liability arising from a crime under the Penal Code, or a
separate responsibility for fault or negligence under articles 1902 to 1910 of the Civil Code. Still more
concretely, the authorities above cited render it inescapable to conclude that the employer — in this
case the defendant-petitioner — is primarily and directly liable under article 1903 of the Civil Code.
The legal provisions, authors, and cases already invoked should ordinarily be sufficient to dispose of
this case. But inasmuch as we are announcing doctrines that have been little understood in the past, it
might not be inappropriate to indicate their foundations.
Firstly, the Revised Penal Code in article 365 punishes not only reckless but also simple negligence. If
we were to hold that articles 1902 to 1910 of the Civil Code refer only to fault or negligence not
punished by law, according to the literal import of article 1093 of the Civil Code, the legal institution
of culpa aquiliana would have very little scope and application in actual life. Death or injury to persons
and damage to property through any degree of negligence — even the slightest — would have to be
indemnified only through the principle of civil liability arising from a crime. In such a state of affairs,
what sphere would remain for cuasi-delito or culpa aquiliana ? We are loath to impute to the
lawmaker any intention to bring about a situation so absurd and anomalous. Nor are we, in the
interpretation of the laws, disposed to uphold the letter that killeth rather than the spirit that giveth life.
We will not use the literal meaning of the law to smother and render almost lifeless a principle of such
ancient origin and such full-grown development as culpa aquiliana or cuasi-delito , which is conserved
and made enduring in articles 1902 to 1910 of the Spanish Civil Code.
Secondly, to find the accused guilty in a criminal case, proof of guilt beyond reasonable doubt is
required, while in a civil case, preponderance of evidence is sufficient to make the defendant pay in
damages. There are numerous cases of criminal negligence which can not be shown beyond reasonable
doubt, but can be proved by a preponderance of evidence. In such cases, the defendant can and should
be made responsible in a civil action under articles 1902 to 1910 of the Civil Code. Otherwise, there
would be many instances of unvindicated civil wrongs. Ubi jus ibi remedium
Thirdly, to hold that there is only one way to make defendant's liability effective, and that is, to sue the
driver and exhaust his (the latter's) property first, would be tantamount to compelling the plaintiff to
follow a devious and cumbersome method of obtaining relief. True, there is such a remedy under our
laws, but there is also a more expeditious way, which is based on the primary and direct responsibility
of the defendant under article 1903 of the Civil Code. Our view of the law is more likely to facilitate
remedy for civil wrongs, because the procedure indicated by the defendant is wasteful and productive
of delay, it being a matter of common knowledge that professional drivers of taxis and similar public
conveyance usually do not have sufficient means with which to pay damages. Why, then, should the
plaintiff be required in all cases to go through this roundabout, unnecessary, and probably useless
procedure? In construing the laws, courts have endeavored to shorten and facilitate the pathways of
right and justice.
At this juncture, it should be said that the primary and direct responsibility of employers and their
presumed negligence are principles calculated to protect society. Workmen and employees should be
carefully chosen and supervised in order to avoid injury to the public. It is the masters or employers
who principally reap the profits resulting from the services of these servants and employees. It is but
right that they should guarantee the latter's careful conduct for the personnel and patrimonial safety of
others. As Theilhard has said, "they should reproach themselves, at least, some for their weakness,
others for their poor selection and all for their negligence." And according to Manresa, "It is much
more equitable and just that such responsibility should fall upon the principal or director who could
have chosen a careful and prudent employee, and not upon the injured person who could not exercise
such selection and who used such employee because of his confidence in the principal or director."
(Vol. 12, p. 622, 2nd Ed.) Many jurists also base this primary responsibility of the employer on the
principle of representation of the principal by the agent. Thus, Oyuelos says in the work already cited
(Vol. 7, p. 747) that before third persons the employer and employee "vienen a ser como una sola
personalidad, por refundicion de la del dependiente en la de quien le emplea y utiliza." ("become as
one personality by the merging of the person of the employee in that of him who employs and utilizes
him.") All these observations acquire a peculiar force and significance when it comes to motor
accidents, and there is need of stressing and accentuating the responsibility of owners of motor
vehicles.
Fourthly, because of the broad sweep of the provisions of both the Penal Code and the Civil Code on
this subject, which has given rise to the overlapping or concurrence of spheres already discussed, and
for lack of understanding of the character and efficacy of the action for culpa aquiliana , there has
grown up a common practice to seek damages only by virtue of the civil responsibility arising from a
crime, forgetting that there is another remedy, which is by invoking articles 1902-1910 of the Civil
Code. Although this habitual method is allowed by our laws, it has nevertheless rendered practically
useless and nugatory the more expeditious and effective remedy based on culpa aquiliana orculpa
extra-contractual . In the present case, we are asked to help perpetuate this usual course. But we
believe it is high time we pointed out to the harm done by such practice and to restore the principle of
responsibility for fault or negligence under articles 1902 et seq . of the Civil Code to its full rigor. It is
high time we caused the stream of quasi-delict or culpa aquiliana to flow on its own natural channel,
so that its waters may no longer be diverted into that of a crime under the Penal Code. This will, it is
believed, make for the better safeguarding of private rights because it re-establishes an ancient and
additional remedy, and for the further reason that an independent civil action, not depending on the
issues, limitations and results of a criminal prosecution, and entirely directed by the party wronged or
his counsel, is more likely to secure adequate and efficacious redress.
In view of the foregoing, the judgment of the Court of Appeals should be and is hereby affirmed, with
costs against the defendant-petitioner.
Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. L-46179 January 31, 1978
CANDIDA VIRATA, TOMAS VIRATA, MANOLITO VIRATA, EDERLINDA VIRATA,
NAPOLEON VIRATA, ARACELY VIRATA, ZENAIDA VIRATA, LUZMINDA VIRATA,
PACITA VIRATA, and EVANGELINA VIRATA, petitioners,
vs.
VICTORIO OCHOA, MAXIMO BORILLA and THE COURT OF FIRST INSTANCE OF
CAVITE, 7th JUDICIAL DISTRICT, BRANCH V, stationed at BACOOR, CAVITE,
respondents.
Remulla, Estrella & Associates for petitioners Exequil C. Masangkay for respondents.
FERNANDEZ, J.:
This is an appeal by certiorari, from the order of the Court of First Instance of Cavite, Branch V, in
Civil Case No. B-134 granting the motion of the defendants to dismiss the complaint on the ground
that there is another action pending between the same parties for the same cause. 1
The record shows that on September 24, 1975 one Arsenio Virata died as a result of having been
bumped while walking along Taft Avenue, Pasay City by a passenger jeepney driven by Maximo
Borilla and registered in the name Of Victoria Ochoa; that Borilla is the employer of Ochoa; that for
the death of Arsenio Virata, a action for homicide through reckless imprudence was instituted on
September 25, 1975 against Maximo Borilla in the Court of First Instance of Rizal at Pasay City,
docketed as C Case No. 3162-P of said court; that at the hearing of the said criminal case on December
12, 1975, Atty. Julio Francisco, the private prosecutor, made a reservation to file a separate civil action
for damages against the driver on his criminal liability; that on February 19, 1976 Atty. Julio Francisco
filed a motion in said c case to withdraw the reservation to file a separate civil action; that thereafter,
the private prosecutor actively participated in the trial and presented evidence on the damages; that on
June 29, 1976 the heirs of Arsenio Virata again reserved their right to institute a separate civil action;
that on July 19, 1977 the heirs of Arsenio Virata, petitioners herein, commenced Civil No. B-134 in the
Court of First Instance of Cavite at Bacoor, Branch V, for damages based on quasi-delict against the
driver Maximo Borilla and the registered owner of the jeepney, Victorio Ochoa; that on August 13,
1976 the defendants, private respondents filed a motion to dismiss on the ground that there is another
action, Criminal Case No. 3162-P, pending between the same parties for the same cause; that on
September 8, 1976 the Court of First Instance of Rizal at Pasay City a decision in Criminal Case No.
3612-P acquitting the accused Maximo Borilla on the ground that he caused an injury by name
accident; and that on January 31, 1977, the Court of First Instance of Cavite at Bacoor granted the
motion to Civil Case No. B-134 for damages. 2
The principal issue is weather or not the of the Arsenio Virata, can prosecute an action for the damages
based on quasi-delict against Maximo Borilla and Victoria Ochoa, driver and owner, respectively on
the passenger jeepney that bumped Arsenio Virata.
It is settled that in negligence cases the aggrieved parties may choose between an action under the
Revised Penal Code or of quasi-delict under Article 2176 of the Civil Code of the Philippines. What is
prohibited by Article 2177 of the Civil Code of the Philippines is to recover twice for the same
negligent act.
The Supreme Court has held that:
According to the Code Commission: 'The foregoing provision (Article 2177) though at first sight
startling, is not so novel or extraordinary when we consider the exact nature of criminal and civil
negligence. The former is a violation of the criminal law, while the latter is a 'culpa aquiliana' or quasi-
delict, of ancient origin, having always had its own foundation and individuality, separate from
criminal negligence. Such distinction between criminal negligence and 'culpa extra-contractual' or
quasi-delito has been sustained by decision of the Supreme Court of Spain and maintained as clear,
sound and perfectly tenable by Maura, an outstanding Spanish jurist. Therefore, under the proposed
Article 2177, acquittal from an accusation of criminal negligence, whether on reasonable doubt or not,
shall not be a bar to a subsequent civil action, not for civil liability arising from criminal negligence,
but for damages due to a quasi-delict or 'culpa aquiliana'. But said article forestalls a double recovery.
(Report of the Code Commission, p. 162.)
Although, again, this Article 2177 does seem to literally refer to only acts of negligence, the same
argument of Justice Bocobo about construction that upholds 'the spirit that given life' rather than that
which is literal that killeth the intent of the lawmaker should be observed in applying the same. And
considering that the preliminary chapter on human relations of the new Civil Code definitely
establishes the separability and independence of liability in a civil action for acts criminal in character
(under Articles 29 to 32) from the civil responsibility arising from crime fixed by Article 100 of the
Penal Code, and, in a sense, the Rules of Court, under Sections 2 and 3(c), Rule 111, contemplate also
the same separability, it is 'more congruent' with the spirit of law, equity and justice, and more in
harmony with modern progress', to borrow the felicitous language in Rakes vs. Atlantic Gulf and
Pacific Co., 7 Phil. to 359, to hod as We do hold, that Article 2176, where it refers to 'fault covers not
only acts 'not punishable by law' but also criminal in character, whether intentional and voluntary or
consequently, a separate civil action lies against the in a criminal act, whether or not he is criminally
prosecuted and found guilty and acquitted, provided that the offended party is not allowed, if he is
actually charged also criminally, to recover damages on both scores, and would be entitled in such
eventuality only to the bigger award of the, two assuming the awards made in the two cases vary. In
other words the extinction of civil liability refereed to in Par. (c) of Section 13, Rule 111, refers
exclusively to civil liability founded on Article 100 of the Revised Penal Code, whereas the civil
liability for the same act considered as a quasi-delict only and not as a crime is not extinguished even
by a declaration in the criminal case that the criminal act charged has not happened or has not been
committed by the accused. Brief stated, We hold, in reitration of Garcia, that culpa aquilina includes
voluntary and negligent acts which may be punishable by law. 3
The petitioners are not seeking to recover twice for the same negligent act. Before Criminal Case No.
3162-P was decided, they manifested in said criminal case that they were filing a separate civil action
for damages against the owner and driver of the passenger jeepney based on quasi-delict. The acquittal
of the driver, Maximo Borilla, of the crime charged in Criminal Case No. 3162-P is not a bar to the
prosecution of Civil Case No. B-134 for damages based on quasi-delict The source of the obligation
sought to be enforced in Civil Case No. B-134 is quasi-delict , not an act or omission punishable by
law. Under Article 1157 of the Civil Code of the Philippines, quasi-delict and an act or omission
punishable by law are two different sources of obligation.
Moreover, for the petitioners to prevail in the action for damages, Civil Case No. B-134, they have
only to establish their cause of action by preponderance of the evidence.
WHEREFORE, the order of dismissal appealed from is hereby set aside and Civil Case No. B-134 is
reinstated and remanded to the lower court for further proceedings, with costs against the private
respondents.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. L-53401 November 6, 1989
THE ILOCOS NORTE ELECTRIC COMPANY, petitioner,
vs.
HONORABLE COURT OF APPEALS, (First Division) LILIAN JUAN LUIS, JANE JUAN
YABES, VIRGINIA JUAN CID, GLORIA JUAN CARAG, and PURISIMA JUAN, respondents.
Herman D. Coloma for petitioner. Glicerio S. Ferrer for private respondents.
PARAS, J.:
Sought to be reversed in this petition is the Decision * of the respondent Court of Appeals' First
Division, setting aside the judgment of the then Court of First Instance (CFI) of Ilocos Norte, with the
following dispositive portion:
WHEREFORE, the appealed judgment is hereby set aside and another rendered in its stead whereby
defendant is hereby sentenced to pay plaintiffs actual damages of P30,229.45; compensatory damages
of P50,000.00; exemplary damages of P10,000.00; attorney's fees of P3,000.00; plus the costs of suit in
both instances. (p. 27 Rollo)
Basically, this case involves a clash of evidence whereby both patties strive for the recognition of their
respective versions of the scenario from which the disputed claims originate. The respondent Court of
Appeals (CA) summarized the evidence of the parties as follows:
From the evidence of plaintiffs it appears that in the evening of June 28 until the early morning of June
29, 1967 a strong typhoon by the code name "Gening" buffeted the province of Ilocos Norte, bringing
heavy rains and consequent flooding in its wake. Between 5:30 and 6:00 A.M. on June 29, 1967, after
the typhoon had abated and when the floodwaters were beginning to recede the deceased Isabel Lao
Juan, fondly called Nana Belen, ventured out of the house of her son-in-law, Antonio Yabes, on No. 19
Guerrero Street, Laoag City, and proceeded northward towards the direction of the Five Sisters
Emporium, of which she was the owner and proprietress, to look after the merchandise therein that
might have been damaged. Wading in waist-deep flood on Guerrero, the deceased was followed by
Aida Bulong, a Salesgirl at the Five Sisters Grocery, also owned by the deceased, and by Linda Alonzo
Estavillo, a ticket seller at the YJ Cinema, which was partly owned by the deceased. Aida and Linda
walked side by side at a distance of between 5 and 6 meters behind the deceased, Suddenly, the
deceased screamed "Ay" and quickly sank into the water. The two girls attempted to help, but fear
dissuaded them from doing so because on the spot where the deceased sank they saw an electric wire
dangling from a post and moving in snake-like fashion in the water. Upon their shouts for help,
Ernesto dela Cruz came out of the house of Antonio Yabes. Ernesto tried to go to the deceased, but at
four meters away from her he turned back shouting that the water was grounded. Aida and Linda
prodded Ernesto to seek help from Antonio Yabes at the YJ Cinema building which was four or five
blocks away.
When Antonio Yabes was informed by Ernesto that his mother-in law had been electrocuted, he acted
immediately. With his wife Jane, together with Ernesto and one Joe Ros, Yabes passed by the City
Hall of Laoag to request the police to ask the people of defendant Ilocos Norte Electric Company or
INELCO to cut off the electric current. Then the party waded to the house on Guerrero Street. The
floodwater was receding and the lights inside the house were out indicating that the electric current had
been cut off in Guerrero. Yabes instructed his boys to fish for the body of the deceased. The body was
recovered about two meters from an electric post.
In another place, at about 4:00 A.M. on that fateful date, June 29, 1967, Engineer Antonio Juan, Power
Plant Engineer of the National Power Corporation at the Laoag Diesel-Electric Plant, noticed certain
fluctuations in their electric meter which indicated such abnormalities as grounded or short-circuited
lines. Between 6:00 and 6:30 A.M., he set out of the Laoag NPC Compound on an inspection. On the
way, he saw grounded and disconnected lines. Electric lines were hanging from the posts to the
ground. Since he could not see any INELCO lineman, he decided to go to the INELCO Office at the
Life Theatre on Rizal Street by way of Guerrero. As he turned right at the intersection of Guerrero and
Rizal, he saw an electric wire about 30 meters long strung across the street "and the other end was
seeming to play with the current of the water." (p. 64, TSN, Oct. 24, 1972) Finding the Office of the
INELCO still closed, and seeing no lineman therein, he returned to the NPC Compound.
At about 8:10 A.M., Engr. Juan went out of the compound again on another inspection trip. Having
learned of the death of Isabel Lao Juan, he passed by the house of the deceased at the corner of
Guerrero and M.H. del Pilar streets to which the body had been taken. Using the resuscitator which
was a standard equipment in his jeep and employing the skill he acquired from an in service training on
resuscitation, he tried to revive the deceased. His efforts proved futile. Rigor mortis was setting in. On
the left palm of the deceased, Engr. Juan noticed a hollow wound. Proceeding to the INELCO Office,
he met two linemen on the way. He told them about the grounded lines of the INELCO In the
afternoon of the same day, he went on a third inspection trip preparatory to the restoration of power.
The dangling wire he saw on Guerrero early in the morning of June 29, 1967 was no longer there.
Many people came to the house at the corner of Guerrero and M.H. del Pilar after learning that the
deceased had been electrocuted. Among the sympathizers was Dr. Jovencio Castro, Municipal Health
Officer of Sarrat, Ilocos Norte. Upon the request of the relatives of the deceased, Dr. Castro examined
the body at about 8:00 A.M. on June 29, 1967. The skin was grayish or, in medical parlance, cyanotic,
which indicated death by electrocution. On the left palm, the doctor found an "electrically charged
wound" (Exh. C-1: p. 101, TSN, Nov. 28, 1972) or a first degree burn. About the base of the thumb on
the left hand was a burned wound. (Exh. C-2, pp. 102-103, Ibid .) The certificate of death prepared by
Dr. Castro stated the cause of' death as ,'circulatory shock electrocution" (Exh. I; p. 103, Ibid. ).
In defense and exculpation, defendant presented the testimonies of its officers and employees, namely,
Conrado Asis, electric engineer; Loreto Abijero, collector-inspector; Fabico Abijero, lineman; and
Julio Agcaoili, president-manager of INELCO Through the testimonies of these witnesses, defendant
sought to prove that on and even before June 29, 1967 the electric service system of the INELCO in
the whole franchise area, including Area No. 9 which covered the residence of Antonio Yabes at No.
18 Guerrero Street, did not suffer from any defect that might constitute a hazard to life and property.
The service lines, devices and other INELCO equipment in Area No. 9 had been newly-installed prior
to the date in question. As a public service operator and in line with its business of supplying electric
current to the public, defendant had installed safety devices to prevent and avoid injuries to persons
and damage to property in case of natural calamities such as floods, typhoons, fire and others.
Defendant had 12 linesmen charged with the duty of making a round-the-clock check-up of the areas
respectively assigned to them.
Defendant asserts that although a strong typhoon struck the province of Ilocos Norte on June 29, 1967,
putting to streets of Laoag City under water, only a few known places in Laoag were reported to have
suffered damaged electric lines, namely, at the southern approach of the Marcos Bridge which was
washed away and where the INELCO lines and posts collapsed; in the eastern part near the residence
of the late Governor Simeon Mandac; in the far north near the defendant's power plant at the corner of
Segundo and Castro Streets, Laoag City and at the far northwest side, near the premises of the Ilocos
Norte National High School. Fabico Abijero, testified that in the early morning before 6 o'clock on
June 29, 1967 he passed by the intersection of Rizal and Guerrero Streets to switch off the street lights
in Area No. 9. He did not see any cut or broken wires in or near the vicinity. What he saw were many
people fishing out the body of Isabel Lao Juan.
A witness in the person of Dr. Antonio Briones was presented by the defense to show that the deceased
could not have died of electrocution Substantially, the testimony of the doctor is as follows: Without
an autopsy on the cadaver of the victim, no doctor, not even a medicolegal expert, can speculate as to
the real cause of death. Cyanosis could not have been found in the body of the deceased three hours
after her death, because cyanosis which means lack of oxygen circulating in the blood and rendering
the color of the skin purplish, appears only in a live person. The presence of the elongated burn in the
left palm of the deceased (Exhibits C-1 and C-2) is not sufficient to establish her death by
electrocution; since burns caused by electricity are more or less round in shape and with points of entry
and exit. Had the deceased held the lethal wire for a long time, the laceration in her palm would have
been bigger and the injury more massive. (CA Decision, pp. 18-21, Rollo)
An action for damages in the aggregate amount of P250,000 was instituted by the heirs of the deceased
with the aforesaid CFI on June 24, 1968. In its Answer (Vide, Record on Appeal, p. 55, Rollo),
petitioner advanced the theory, as a special defense, that the deceased could have died simply either by
drowning or by electrocution due to negligence attributable only to herself and not to petitioner. In this
regard, it was pointed out that the deceased, without petitioner's knowledge, caused the installation of a
burglar deterrent by connecting a wire from the main house to the iron gate and fence of steel matting,
thus, charging the latter with electric current whenever the switch is on. Petitioner then conjectures that
the switch to said burglar deterrent must have been left on, hence, causing the deceased's electrocution
when she tried to open her gate that early morning of June 29, 1967. After due trial, the CFI found the
facts in favor of petitioner and dismissed the complaint but awarded to the latter P25,000 in moral
damages and attorney's fees of P45,000. An appeal was filed with the CA which issued the
controverted decision.
In this petition for review the petitioner assigns the following errors committed by the respondent CA:
1. The respondent Court of Appeals committed grave abuse of discretion and error in considering the
purely hearsay alleged declarations of Ernesto de la Cruz as part of the res gestae .
2. The respondent Court of Appeals committed grave abuse of discretion and error in holding that the
strong typhoon "Gening" which struck Laoag City and Ilocos Norte on June 29, 1967 and the flood and
deluge it brought in its wake were not fortuitous events and did not exonerate petitioner-company from
liability for the death of Isabel Lao Juan.
3. The respondent Court of Appeals gravely abused its discretion and erred in not applying the legal
principle of "assumption of risk" in the present case to bar private respondents from collecting
damages from petitioner company.
4. That the respondent Court of Appeals gravely erred and abused its discretion in completely
reversing the findings of fact of the trial court.
5. The findings of fact of the respondent Court of Appeals are reversible under the recognized
exceptions.
6. The trial court did not err in awarding moral damages and attorney's fees to defendant corporation,
now petitioner company.
7. Assuming arguendo that petitioner company may be held liable from the death of the late Isabel Lao
Juan, the damages granted by respondent Court of Appeals are improper and exhorbitant. (Petitioners
Memorandum, p. 133, Rollo)
Basically, three main issues are apparent: (1) whether or not the deceased died of electrocution; (2)
whether or not petitioner may be held liable for the deceased's death; and (3) whether or not the
respondent CA's substitution of the trial court's factual findings for its own was proper.
In considering the first issue, it is Our view that the same be resolved in the affirmative. By a
preponderance of evidence, private respondents were able to show that the deceased died of
electrocution, a conclusion which can be primarily derived from the photographed burnt wounds
(Exhibits "C", "C-1", "C-2") on the left palm of the former. Such wounds undoubtedly point to the fact
that the deceased had clutched a live wire of the petitioner. This was corroborated by the testimony of
Dr. Jovencio Castro who actually examined the body of the deceased a few hours after the death and
described the said burnt wounds as a "first degree burn" (p. 144, TSN, December 11, 1972) and that
they were "electrically charged" (p. 102, TSN, November 28, 1972). Furthermore, witnesses Linda
Alonzo Estavillo and Aida Bulong added that after the deceased screamed "Ay" and sank into the
water, they tried to render some help but were overcome with fear by the sight of an electric wire
dangling from an electric post, moving in the water in a snake-like fashion ( supra ). The foregoing
therefore justifies the respondent CA in concluding that "(t)he nature of the wounds as described by the
witnesses who saw them can lead to no other conclusion than that they were "burns," and there was
nothing else in the street where the victim was wading thru which could cause a burn except the
dangling live wire of defendant company" (CA Decision, p. 22, Rollo).
But in order to escape liability, petitioner ventures into the theory that the deceased was electrocuted, if
such was really the case when she tried to open her steel gate, which was electrically charged by an
electric wire she herself caused to install to serve as a burglar deterrent. Petitioner suggests that the
switch to said burglar alarm was left on. But this is mere speculation, not backed up with evidence. As
required by the Rules, "each party must prove his own affirmative allegations." (Rule 131, Sec. 1).
Nevertheless, the CA significantly noted that "during the trial, this theory was abandoned" by the
petitioner (CA Decision, p. 23, Rollo).
Furthermore the CA properly applied the principle of res gestae . The CA said:
Linda Alonzo Estavillo, a ticket seller, and Aida Bulong, a salesgirl, were with the deceased during
that fateful morning of June 29, 1967. This Court has not been offered any sufficient reason to
discredit the testimonies of these two young ladies. They were one in the affirmation that the deceased,
while wading in the waist-deep flood on Guerrero Street five or six meters ahead of them, suddenly
screamed "Ay" and quickly sank into the water. When they approached the deceased to help, they were
stopped by the sight of an electric wire dangling from a post and moving in snake-like fashion in the
water. Ernesto dela Cruz also tried to approach the deceased, but he turned back shouting that thewater
was grounded . These bits of evidence carry much weight. For the subject of the testimonies was a
startling occurrence, and the declarations may be considered part of theres gestae . (CA Decision, p.
21, Rollo)
For the admission of the res gestae in evidence, the following requisites must be present: (1) that the
principal act, the res gestae , be a startling occurrence; (2) that the statements were made before the
declarant had time to contrive or devise; (3) that the statements made must concern the occurrence in
question and its immediately attending circumstances (People vs. Ner, 28 SCRA 1151; People vs.
Balbas, 122 SCRA 959). We do not find any abuse of discretion on the CA' part in view of the
satisfaction of said requisites in the case at bar.
The statements made relative to the startling occurrence are admitted in evidence precisely as an
exception to the hearsay rule on the grounds of trustworthiness and necessity. "Trustworthiness"
because the statements are made instinctively (Wesley vs. State, 53 Ala. 182), and "necessity" because
such natural and spontaneous utterances are more convincing than the testimony of the same person on
the stand (Mobile vs. Ascraft 48 Ala. 31). Therefore, the fact that the declarant, Ernesto de la Cruz,
was not presented to testify does not make the testimony of Linda Alonzo Estavillo and Aida Bulong
hearsay since the said declaration is part of the res gestae . Similarly, We considered part of theres
gestae a conversation between two accused immediately after commission of the crime as overheard
by a prosecution witness (People vs. Reyes, 82 Phil. 563).
While it may be true that, as petitioner argues (vide petitioner's Memorandum, p. 135, Rollo), Ernesto
de la Cruz was not an actual witness to the instant when the deceased sank into the waist-deep water,
he acted upon the call of help of Aida Bulong and Linda Alonzo Estavillo with the knowledge of, and
immediately after, the sinking of the deceased. In fact the startling event had not yet ceased when
Ernesto de la Cruz entered the scene considering that the victim remained submerged. Under such a
circumstance, it is undeniable that a state of mind characterized by nervous excitement had been
triggered in Ernesto de la Cruz's being as anybody under the same contingency could have
experienced. As such, We cannot honestly exclude his shouts that the water was grounded from the res
gestae just because he did not actually see the sinking of the deceased nor hear her scream "Ay."
Neither can We dismiss the said declaration as a mere opinion of Ernesto de la Cruz. While We
concede to the submission that the statement must be one of facts rather than opinion, We cannot agree
to the proposition that the one made by him was a mere opinion. On the contrary, his shout was a
translation of an actuality as perceived by him through his sense of touch.
Finally, We do not agree that the taking of Ernesto de la Cruz' testimony was suppressed by the private
respondents, thus, is presumed to be adverse to them pursuant to Section 5(e), Rule 131. For the
application of said Rule as against a party to a case, it is necessary that the evidence alleged to be
suppressed is available only to said party (People vs. Tulale, L-7233, 18 May 1955, 97 Phil. 953). The
presumption does not operate if the evidence in question is equally available to both parties
(StaplesHowe Printing Co. vs. Bldg. and Loan Assn., 36 Phil. 421). It is clear from the records that
petitioner could have called Ernesto de la Cruz to the witness stand. This, precisely, was Linda Alonzo
Estavillo's suggestion to petitioner's counsel when she testified on cross examination:
Q. And that Erning de la Cruz, how far did he reach from the gate of the house?
A. Well, you can ask that matter from him sir because he is here. (TSN, p. 30, 26 Sept. 1972)
The foregoing shows that petitioner had the opportunity to verify the declarations of Ernesto de la Cruz
which, if truly adverse to private respondent, would have helped its case. However, due to reasons
known only to petitioner, the opportunity was not taken.
Coming now to the second issue, We tip the scales in the private respondents' favor. The respondent
CA acted correctly in disposing the argument that petitioner be exonerated from liability since
typhoons and floods are fortuitous events. While it is true that typhoons and floods are considered Acts
of God for which no person may be held responsible, it was not said eventuality which directly caused
the victim's death. It was through the intervention of petitioner's negligence that death took place. We
subscribe to the conclusions of the respondent CA when it found:
On the issue whether or not the defendant incurred liability for the electrocution and consequent death
of the late Isabel Lao Juan, defendant called to the witness-stand its electrical engineer, chief lineman,
and lineman to show exercise of extraordinary diligence and to negate the charge of negligence. The
witnesses testified in a general way about their duties and the measures which defendant usually adopts
to prevent hazards to life and limb. From these testimonies, the lower court found "that the electric
lines and other equipment of defendant corporation were properly maintained by a well-trained team of
lineman, technicians and engineers working around the clock to insure that these equipments were in
excellent condition at all times." (P. 40, Record on Appeal) The finding of the lower court, however,
was based on what the defendant's employees were supposed to do, not on what they actually did or
failed to do on the date in question, and not on the occasion of the emergency situation brought about
by the typhoon.
The lower court made a mistake in assuming that defendant's employees worked around the clock
during the occurrence of the typhoon on the night of June 28 and until the early morning of June 29,
1967, Engr. Antonio Juan of the National Power Corporation affirmed that when he first set out on an
inspection trip between 6:00 and 6:30 A.M. on June 29, 1967, he saw grounded and disconnected
electric lines of the defendant but he saw no INELCO lineman . The INELCO Office at the Life theatre
on Rizal Street was still closed . (pp. 63-64, TSN, Oct. 24, 1972) Even the witnesses of defendant
contradict the finding of the lower court. Conrado Asis, defendant's electrical engineer, testified that he
conducted a general inspection of the franchise area of the INELCO only on June 30, 1967 , the day
following the typhoon. The reason he gave for the delay was that all their vehicles were submerged. (p.
337, TSN, July 20, 1973) According to Asis, he arrived at his office at 8:00 A.M. on June 30 and after
briefing his men on what to do they started out. (p. 338, lbid ) One or two days after the typhoon, the
INELCO people heard "rumors that someone was electrocuted" so he sent one of his men to the place
but his man reported back that there was no damaged wire. (p. 385, Id .) Loreto Abijero, chief lineman
of defendant, corroborated Engr. Juan. He testified that at about 8:00 A.M. on June 29, 1967 Engr.
Juan came to the INELCO plant and asked the INELCO people to inspect their lines. He went with
Engr. Juan and their inspection lasted from 8:00 A.M. to 12:00 noon. (pp. 460, 465, TSN, Jan. 28,
1975) Fabico Abijero lineman of defendant, testified that at about 6:00 on June 29, 1967 the typhoon
ceased. At that time, he was at the main building of the Divine Word College of Laoag where he had
taken his family for refuge. (pp. 510-511, Ibid. )
In times of calamities such as the one which occurred in Laoag City on the night of June 28 until the
early hours of June 29, 1967, extraordinary diligence requires a supplier ofelectricity to be in constant
vigil to prevent or avoid any probable incident that might imperil life or limb. The evidence does not
show that defendant did that. On the contrary, evidence discloses that there were no men (linemen or
otherwise) policing the area, nor even manning its office. (CA Decision, pp. 24-25, Rollo)
Indeed, under the circumstances of the case, petitioner was negligent in seeing to it that no harm is
done to the general public"... considering that electricity is an agency, subtle and deadly, the measure
of care required of electric companies must be commensurate with or proportionate to the danger. The
duty of exercising this high degree of diligence and care extends to every place where persons have a
right to be" (Astudillo vs. Manila Electric, 55 Phil. 427). The negligence of petitioner having been
shown, it may not now absolve itself from liability by arguing that the victim's death was solely due to
a fortuitous event. "When an act of God combines or concurs with the negligence of the defendant to
produce an injury, the defendant is liable if the injury would not have resulted but for his own
negligent conduct or omission" (38 Am. Jur., p. 649).
Likewise, the maxim "volenti non fit injuria" relied upon by petitioner finds no application in the case
at bar. It is imperative to note the surrounding circumstances which impelled the deceased to leave the
comforts of a roof and brave the subsiding typhoon. As testified by Linda Alonzo Estavillo (see TSN,
p. 5, 26 Sept. 1972) and Aida Bulong (see TSN, p. 43, 26 Sept. 1972), the deceased, accompanied by
the former two, were on their way to the latter's grocery store "to see to it that the goods were not
flooded." As such, shall We punish her for exercising her right to protect her property from the floods
by imputing upon her the unfavorable presumption that she assumed the risk of personal injury?
Definitely not. For it has been held that a person is excused from the force of the rule, that when he
voluntarily assents to a known danger he must abide by the consequences, if an emergency is found to
exist or if the life or property of another is in peril (65A C.S.C. Negligence(174(5), p. 301), or when he
seeks to rescue his endangered property (Harper and James, "The Law of Torts." Little, Brown and
Co., 1956, v. 2, p. 1167). Clearly, an emergency was at hand as the deceased's property, a source of her
livelihood, was faced with an impending loss. Furthermore, the deceased, at the time the fatal incident
occurred, was at a place where she had a right to be without regard to petitioner's consent as she was
on her way to protect her merchandise. Hence, private respondents, as heirs, may not be barred from
recovering damages as a result of the death caused by petitioner's negligence ( ibid ., p. 1165, 1166).
But petitioner assails the CA for having abused its discretion in completely reversing the trial court's
findings of fact, pointing to the testimonies of three of its employees its electrical engineer, collector-
inspector, lineman, and president-manager to the effect that it had exercised the degree of diligence
required of it in keeping its electric lines free from defects that may imperil life and limb. Likewise, the
said employees of petitioner categorically disowned the fatal wires as they appear in two photographs
taken on the afternoon of June 29, 1967 (Exhs. "D" and "E"), suggesting that said wires were just
hooked to the electric post (petitioner's Memorandum, p. 170, Rollo). However, as the CA properly
held, "(t)he finding of the lower court ... was based on what the defendant's employees were supposed
to do, not on what they actually did or failed to do on the date in question, and not on the occasion of
the emergency situation brought about by the typhoon" (CA Decision, p. 25, Rollo). And as found by
the CA, which We have already reiterated above, petitioner was in fact negligent. In a like manner,
petitioner's denial of ownership of the several wires cannot stand the logical conclusion reached by the
CA when it held that "(t)he nature of the wounds as described by the witnesses who saw them can lead
to no other conclusion than that they were 'burns', and there was nothing else in the street where the
victim was wading thru which could cause a burn except the dangling live wire of defendant company"
( supra ).
"When a storm occurs that is liable to prostrate the wires, due care requires prompt efforts to discover
and repair broken lines" (Cooley on Torts, 4th ed., v. 3, p. 474). The fact is that when Engineer
Antonio Juan of the National Power Corporation set out in the early morning of June 29, 1967 on an
inspection tour, he saw grounded and disconnected lines hanging from posts to the ground but did not
see any INELCO lineman either in the streets or at the INELCO office (vide, CA Decision, supra ).
The foregoing shows that petitioner's duty to exercise extraordinary diligence under the circumstance
was not observed, confirming the negligence of petitioner. To aggravate matters, the CA found:
. . .even before June 28 the people in Laoag were already alerted about the impending typhoon,
through radio announcements. Even the fire department of the city announced the coming of the big
flood. (pp. 532-534, TSN, March 13, 1975) At the INELCO irregularities in the flow of electric current
were noted because "amperes of the switch volts were moving". And yet, despite these danger signals,
INELCO had to wait for Engr. Juan to request that defendant's switch be cut off but the harm was
done. Asked why the delay, Loreto Abijero answered that he "was not the machine tender of the
electric plant to switch off the current." (pp. 467-468, Ibid .) How very characteristic of gross
inefficiency! (CA Decision, p. 26, Rollo)
From the preceding, We find that the CA did not abuse its discretion in reversing the trial court's
findings but tediously considered the factual circumstances at hand pursuant to its power to review
questions of fact raised from the decision of the Regional Trial Court, formerly the Court of First
Instance (see sec. 9, BP 129).
In considering the liability of petitioner, the respondent CA awarded the following in private
respondent's favor: P30,229.45 in actual damages (i.e., P12,000 for the victim's death and P18,229.45
for funeral expenses); P50,000 in compensatory damages, computed in accordance with the formula
set in the Villa-Rey Transit case (31 SCRA 511) with the base of P15,000 as average annual income of
the deceased; P10,000 in exemplary damages; P3,000 attorney's fees; and costs of suit. Except for the
award of P12,000 as compensation for the victim's death, We affirm the respondent CA's award for
damages and attorney's fees. Pusuant to recent jurisprudence (People vs. Mananquil, 132 SCRA 196;
People vs. Traya, 147 SCRA 381), We increase the said award of P12,000 to P30,000, thus, increasing
the total actual damages to P48,229.45.
The exclusion of moral damages and attorney's fees awarded by the lower court was properly made by
the respondent CA, the charge of malice and bad faith on the part of respondents in instituting his case
being a mere product of wishful thinking and speculation. Award of damages and attorney's fees is
unwarranted where the action was filed in good faith; there should be no penalty on the right to litigate
(Espiritu vs. CA, 137 SCRA 50). If damage results from a person's exercising his legal rights, it
is damnum absque injuria (Auyong Hian vs. CTA, 59 SCRA 110).
WHEREFORE, the questioned decision of the respondent, except for the slight modification that
actual damages be increased to P48,229.45 is hereby AFFIRMED.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
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.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-12986 March 31, 1966
THE SPOUSES BERNABE AFRICA and SOLEDAD C. AFRICA, and the HEIRS OF
DOMINGA ONG, petitioners-appellants,
vs.
CALTEX (PHIL.), INC., MATEO BOQUIREN and THE COURT OF APPEALS, respondents-
appellees.
Ross, Selph, Carrascoso and Janda for the respondents. Bernabe Africa, etc. for the petitioners.
MAKALINTAL., J.:
This case is before us on a petition for review of the decision of the Court of Appeals, which affirmed
that of the Court of First Instance of Manila dismissing petitioners' second amended complaint against
respondents.
The action is for damages under Articles 1902 and 1903 of the old Civil Code. It appears that in the
afternoon of March 18, 1948 a fire broke out at the Caltex service station at the corner of Antipolo
street and Rizal Avenue, Manila. It started while gasoline was being hosed from a tank truck into the
underground storage, right at the opening of the receiving tank where the nozzle of the hose was
inserted. The fire spread to and burned several neighboring houses, including the personal properties
and effects inside them. Their owners, among them petitioners here, sued respondents Caltex (Phil.),
Inc. and Mateo Boquiren, the first as alleged owner of the station and the second as its agent in charge
of operation. Negligence on the part of both of them was attributed as the cause of the fire.
The trial court and the Court of Appeals found that petitioners failed to prove negligence and that
respondents had exercised due care in the premises and with respect to the supervision of their
employees.
The first question before Us refers to the admissibility of certain reports on the fire prepared by the
Manila Police and Fire Departments and by a certain Captain Tinio of the Armed Forces of the
Philippines. Portions of the first two reports are as follows:
1. Police Department report: —
Investigation disclosed that at about 4:00 P.M. March 18, 1948, while Leandro Flores was transferring
gasoline from a tank truck, plate No. T-5292 into the underground tank of the Caltex Gasoline Station
located at the corner of Rizal Avenue and Antipolo Street, this City, an unknown Filipino lighted a
cigarette and threw the burning match stick near the main valve of the said underground tank. Due to
the gasoline fumes, fire suddenly blazed. Quick action of Leandro Flores in pulling off the gasoline
hose connecting the truck with the underground tank prevented a terrific explosion. However, the
flames scattered due to the hose from which the gasoline was spouting. It burned the truck and the
following accessorias and residences.
2. The Fire Department report: —
In connection with their allegation that the premises was (sic) subleased for the installation of a coca-
cola and cigarette stand, the complainants furnished this Office a copy of a photograph taken during
the fire and which is submitted herewith. it appears in this picture that there are in the premises a coca-
cola cooler and a rack which according to information gathered in the neighborhood contained
cigarettes and matches, installed between the gasoline pumps and the underground tanks.
The report of Captain Tinio reproduced information given by a certain Benito Morales regarding the
history of the gasoline station and what the chief of the fire department had told him on the same
subject.
The foregoing reports were ruled out as "double hearsay" by the Court of Appeals and hence
inadmissible. This ruling is now assigned as error. It is contended: first, that said reports were admitted
by the trial court without objection on the part of respondents; secondly, that with respect to the police
report (Exhibit V-Africa) which appears signed by a Detective Zapanta allegedly "for Salvador
Capacillo," the latter was presented as witness but respondents waived their right to cross-examine him
although they had the opportunity to do so; and thirdly, that in any event the said reports are admissible
as an exception to the hearsay rule under section 35 of Rule 123, now Rule 130.
The first contention is not borne out by the record. The transcript of the hearing of September 17, 1953
(pp. 167-170) shows that the reports in question, when offered as evidence, were objected to by
counsel for each of respondents on the ground that they were hearsay and that they were "irrelevant,
immaterial and impertinent." Indeed, in the court's resolution only Exhibits J, K, K-5 and X-6 were
admitted without objection ; the admission of the others, including the disputed ones, carried no such
explanation.
On the second point, although Detective Capacillo did take the witness stand, he was not examined and
he did not testify as to the facts mentioned in his alleged report (signed by Detective Zapanta). All he
said was that he was one of those who investigated "the location of the fire and, if possible, gather
witnesses as to the occurrence, and that he brought the report with him. There was nothing, therefore,
on which he need be cross-examined; and the contents of the report, as to which he did not testify, did
not thereby become competent evidence. And even if he had testified, his testimony would still have
been objectionable as far as information gathered by him from third persons was concerned.
Petitioners maintain, however, that the reports in themselves, that is, without further testimonial
evidence on their contents, fall within the scope of section 35, Rule 123, which provides that "entries in
official records made in the performance of his duty by a public officer of the Philippines, or by a
person in the performance of a duty specially enjoined by law, are prima facie evidence of the facts
therein stated."
There are three requisites for admissibility under the rule just mentioned: (a) that the entry was made
by a public officer, or by another person specially enjoined by law to do so; (b) that it was made by the
public officer in the performance of his duties, or by such other person in the performance of a duty
specially enjoined by law; and (c) that the public officer or other person had sufficient knowledge of
the facts by him stated, which must have been acquired by him personally or through official
information (Moran, Comments on the Rules of Court, Vol. 3 [1957] p. 398).
Of the three requisites just stated, only the last need be considered here. Obviously the material facts
recited in the reports as to the cause and circumstances of the fire were not within the personal
knowledge of the officers who conducted the investigation. Was knowledge of such facts, however,
acquired by them through official information? As to some facts the sources thereof are not even
identified. Others are attributed to Leopoldo Medina, referred to as an employee at the gas station were
the fire occurred; to Leandro Flores, driver of the tank truck from which gasoline was being transferred
at the time to the underground tank of the station; and to respondent Mateo Boquiren, who could not,
according to Exhibit V-Africa, give any reason as to the origin of the fire. To qualify their statements
as "official information" acquired by the officers who prepared the reports, the persons who made the
statements not only must have personal knowledge of the facts stated but must have the duty to give
such statements for record. 1
The reports in question do not constitute an exception to the hearsay rule; the facts stated therein were
not acquired by the reporting officers through official information, not having been given by the
informants pursuant to any duty to do so.
The next question is whether or not, without proof as to the cause and origin of the fire, the doctrine
of res ipsa loquitur should apply so as to presume negligence on the part of appellees. Both the trial
court and the appellate court refused to apply the doctrine in the instant case on the grounds that "as to
(its) applicability ... in the Philippines, there seems to he nothing definite," and that while the rules do
not prohibit its adoption in appropriate cases, "in the case at bar, however, we find no practical use for
such doctrine." The question deserves more than such summary dismissal. The doctrine has actually
been applied in this jurisdiction, in the case of Espiritu vs. Philippine Power and Development Co .
(CA-G.R. No. 3240-R, September 20, 1949), wherein the decision of the Court of Appeals was penned
by Mr. Justice J.B.L. Reyes now a member of the Supreme Court.
The facts of that case are stated in the decision as follows:
In the afternoon of May 5, 1946, while the plaintiff-appellee and other companions were loading grass
between the municipalities of Bay and Calauan, in the province of Laguna, with clear weather and
without any wind blowing, an electric transmission wire, installed and maintained by the defendant
Philippine Power and Development Co., Inc. alongside the road, suddenly parted, and one of the
broken ends hit the head of the plaintiff as he was about to board the truck. As a result, plaintiff
received the full shock of 4,400 volts carried by the wire and was knocked unconscious to the ground.
The electric charge coursed through his body and caused extensive and serious multiple burns from
skull to legs, leaving the bone exposed in some parts and causing intense pain and wounds that were
not completely healed when the case was tried on June 18, 1947, over one year after the mishap.
The defendant therein disclaimed liability on the ground that the plaintiff had failed to show any
specific act of negligence, but the appellate court overruled the defense under the doctrine of res ipsa
loquitur . The court said:
The first point is directed against the sufficiency of plaintiff's evidence to place appellant on its
defense. While it is the rule, as contended by the appellant, that in case of noncontractual negligence,
or culpa aquiliana , the burden of proof is on the plaintiff to establish that the proximate cause of his
injury was the negligence of the defendant, it is also a recognized principal that "where the thing which
caused injury, without fault of the injured person, is under the exclusive control of the defendant and
the injury is such as in the ordinary course of things does not occur if he having such control use
proper care, it affords reasonable evidence, in the absence of the explanation, that the injury arose from
defendant's want of care."
And the burden of evidence is shifted to him to establish that he has observed due care and diligence.
(San Juan Light & Transit Co. v. Requena, 244, U.S. 89, 56 L. ed. 680.) This rule is known by the
name of res ipsa loquitur (the transaction speaks for itself), and is peculiarly applicable to the case at
bar, where it is unquestioned that the plaintiff had every right to be on the highway, and the electric
wire was under the sole control of defendant company. In the ordinary course of events, electric wires
do not part suddenly in fair weather and injure people, unless they are subjected to unusual strain and
stress or there are defects in their installation, maintenance and supervision; just as barrels do not
ordinarily roll out of the warehouse windows to injure passersby, unless some one was negligent.
(Byrne v. Boadle, 2 H & Co. 722; 159 Eng. Reprint 299, the leading case that established that rule).
Consequently, in the absence of contributory negligence (which is admittedly not present), the fact that
the wire snapped suffices to raise a reasonable presumption of negligence in its installation, care and
maintenance. Thereafter, as observed by Chief Baron Pollock, "if there are any facts inconsistent with
negligence, it is for the defendant to prove."
It is true of course that decisions of the Court of Appeals do not lay down doctrines binding on the
Supreme Court, but we do not consider this a reason for not applying the particular doctrine of res ipsa
loquitur in the case at bar. Gasoline is a highly combustible material, in the storage and sale of which
extreme care must be taken. On the other hand, fire is not considered a fortuitous event, as it arises
almost invariably from some act of man. A case strikingly similar to the one before Us is Jones vs.
Shell Petroleum Corporation, et al., 171 So. 447:
Arthur O. Jones is the owner of a building in the city of Hammon which in the year 1934 was leased to
the Shell Petroleum Corporation for a gasoline filling station. On October 8, 1934, during the term of
the lease, while gasoline was being transferred from the tank wagon, also operated by the Shell
Petroleum Corporation, to the underground tank of the station, a fire started with resulting damages to
the building owned by Jones. Alleging that the damages to his building amounted to $516.95, Jones
sued the Shell Petroleum Corporation for the recovery of that amount. The judge of the district court,
after hearing the testimony, concluded that plaintiff was entitled to a recovery and rendered judgment
in his favor for $427.82. The Court of Appeals for the First Circuit reversed this judgment, on the
ground the testimony failed to show with reasonable certainty any negligence on the part of the Shell
Petroleum Corporation or any of its agents or employees. Plaintiff applied to this Court for a Writ of
Review which was granted, and the case is now before us for decision.
In resolving the issue of negligence, the Supreme Court of Louisiana held:
Plaintiff's petition contains two distinct charges of negligence — one relating to the cause of the fire
and the other relating to the spreading of the gasoline about the filling station.
Other than an expert to assess the damages caused plaintiff's building by the fire, no witnesses were
placed on the stand by the defendant.
Taking up plaintiff's charge of negligence relating to the cause of the fire, we find it established by the
record that the filling station and the tank truck were under the control of the defendant and operated
by its agents or employees. We further find from the uncontradicted testimony of plaintiff's witnesses
that fire started in the underground tank attached to the filling station while it was being filled from the
tank truck and while both the tank and the truck were in charge of and being operated by the agents or
employees of the defendant, extended to the hose and tank truck, and was communicated from the
burning hose, tank truck, and escaping gasoline to the building owned by the plaintiff.
Predicated on these circumstances and the further circumstance of defendant's failure to explain the
cause of the fire or to show its lack of knowledge of the cause, plaintiff has evoked the doctrine of res
ipsa loquitur . There are many cases in which the doctrine may be successfully invoked and this, we
think, is one of them.
Where the thing which caused the injury complained of is shown to be under the management of
defendant or his servants and the accident is such as in the ordinary course of things does not happen if
those who have its management or control use proper care, it affords reasonable evidence, in absence
of explanation by defendant, that the accident arose from want of care. (45 C.J. #768, p. 1193).
This statement of the rule of res ipsa loquitur has been widely approved and adopted by the courts of
last resort. Some of the cases in this jurisdiction in which the doctrine has been applied are the
following, viz .: Maus v. Broderick, 51 La. Ann. 1153, 25 So. 977; Hebert v. Lake Charles Ice, etc.,
Co., 111 La. 522, 35 So. 731, 64 L.R.A. 101, 100 Am. St. Rep. 505; Willis v. Vicksburg, etc., R. Co.,
115 La. 63, 38 So. 892; Bents v. Page, 115 La. 560, 39 So. 599.
The principle enunciated in the aforequoted case applies with equal force here. The gasoline station,
with all its appliances, equipment and employees, was under the control of appellees. A fire occurred
therein and spread to and burned the neighboring houses. The persons who knew or could have known
how the fire started were appellees and their employees, but they gave no explanation thereof
whatsoever. It is a fair and reasonable inference that the incident happened because of want of care.
In the report submitted by Captain Leoncio Mariano of the Manila Police Department (Exh. X-1
Africa) the following appears:
Investigation of the basic complaint disclosed that the Caltex Gasoline Station complained of occupies
a lot approximately 10 m x 10 m at the southwest corner of Rizal Avenue and Antipolo. The location is
within a very busy business district near the Obrero Market, a railroad crossing and very thickly
populated neighborhood where a great number of people mill around t until gasoline tever be
theWactjvities of these peopleor lighting a cigarette cannot be excluded and this constitute a secondary
hazard to its operation which in turn endangers the entire neighborhood to conflagration.
Furthermore, aside from precautions already taken by its operator the concrete walls south and west
adjoining the neighborhood are only 2-1/2 meters high at most and cannot avoid the flames from
leaping over it in case of fire.
Records show that there have been two cases of fire which caused not only material damages but
desperation and also panic in the neighborhood.
Although the soft drinks stand had been eliminated, this gasoline service station is also used by its
operator as a garage and repair shop for his fleet of taxicabs numbering ten or more, adding another
risk to the possible outbreak of fire at this already small but crowded gasoline station.
The foregoing report, having been submitted by a police officer in the performance of his duties on the
basis of his own personal observation of the facts reported, may properly be considered as an exception
to the hearsay rule. These facts, descriptive of the location and objective circumstances surrounding the
operation of the gasoline station in question, strengthen the presumption of negligence under the
doctrine of res ipsa loquitur, since on their face they called for more stringent measures of caution than
those which would satisfy the standard of due diligence under ordinary circumstances. There is no
more eloquent demonstration of this than the statement of Leandro Flores before the police
investigator. Flores was the driver of the gasoline tank wagon who, alone and without assistance, was
transferring the contents thereof into the underground storage when the fire broke out. He said: "Before
loading the underground tank there were no people, but while the loading was going on, there were
people who went to drink coca-cola (at the coca-cola stand) which is about a meter from the hole
leading to the underground tank." He added that when the tank was almost filled he went to the tank
truck to close the valve, and while he had his back turned to the "manhole" he, heard someone shout
"fire."
Even then the fire possibly would not have spread to the neighboring houses were it not for another
negligent omission on the part of defendants, namely, their failure to provide a concrete wall high
enough to prevent the flames from leaping over it. As it was the concrete wall was only 2-1/2 meters
high, and beyond that height it consisted merely of galvanized iron sheets, which would predictably
crumple and melt when subjected to intense heat. Defendants' negligence, therefore, was not only with
respect to the cause of the fire but also with respect to the spread thereof to the neighboring houses.
There is an admission on the part of Boquiren in his amended answer to the second amended complaint
that "the fire was caused through the acts of a stranger who, without authority, or permission of
answering defendant, passed through the gasoline station and negligently threw a lighted match in the
premises." No evidence on this point was adduced, but assuming the allegation to be true — certainly
any unfavorable inference from the admission may be taken against Boquiren — it does not extenuate
his negligence. A decision of the Supreme Court of Texas, upon facts analogous to those of the present
case, states the rule which we find acceptable here. "It is the rule that those who distribute a dangerous
article or agent, owe a degree of protection to the public proportionate to and commensurate with a
danger involved ... we think it is the generally accepted rule as applied to torts that 'if the effects of the
actor's negligent conduct actively and continuously operate to bring about harm to another, the fact that
the active and substantially simultaneous operation of the effects of a third person's innocent, tortious
or criminal act is also a substantial factor in bringing about the harm, does not protect the actor from
liability.' (Restatement of the Law of Torts, vol. 2, p. 1184, #439). Stated in another way, "The
intention of an unforeseen and unexpected cause, is not sufficient to relieve a wrongdoer from
consequences of negligence, if such negligence directly and proximately cooperates with the
independent cause in the resulting injury." (MacAfee, et al. vs. Traver's Gas Corporation, 153 S.W.
2nd 442.)
The next issue is whether Caltex should be held liable for the damages caused to appellants. This issue
depends on whether Boquiren was an independent contractor, as held by the Court of Appeals, or an
agent of Caltex. This question, in the light of the facts not controverted, is one of law and hence may
be passed upon by this Court. These facts are: (1) Boquiren made an admission that he was an agent of
Caltex; (2) at the time of the fire Caltex owned the gasoline station and all the equipment therein; (3)
Caltex exercised control over Boquiren in the management of the state; (4) the delivery truck used in
delivering gasoline to the station had the name of CALTEX painted on it; and (5) the license to store
gasoline at the station was in the name of Caltex, which paid the license fees. (Exhibit T-Africa;
Exhibit U-Africa; Exhibit X-5 Africa; Exhibit X-6 Africa; Exhibit Y-Africa).In Boquiren's amended
answer to the second amended complaint, he denied that he directed one of his drivers to remove
gasoline from the truck into the tank and alleged that the "alleged driver, if one there was, was not in
his employ, the driver being an employee of the Caltex (Phil.) Inc. and/or the owners of the gasoline
station." It is true that Boquiren later on amended his answer, and that among the changes was one to
the effect that he was not acting as agent of Caltex. But then again, in his motion to dismiss appellants'
second amended complaint the ground alleged was that it stated no cause of action since under the
allegations thereof he was merely acting as agent of Caltex, such that he could not have incurred
personal liability. A motion to dismiss on this ground is deemed to be an admission of the facts alleged
in the complaint.
Caltex admits that it owned the gasoline station as well as the equipment therein, but claims that the
business conducted at the service station in question was owned and operated by Boquiren. But Caltex
did not present any contract with Boquiren that would reveal the nature of their relationship at the time
of the fire. There must have been one in existence at that time. Instead, what was presented was a
license agreement manifestly tailored for purposes of this case, since it was entered into shortly before
the expiration of the one-year period it was intended to operate. This so-called license agreement
(Exhibit 5-Caltex) was executed on November 29, 1948, but made effective as of January 1, 1948 so as
to cover the date of the fire, namely, March 18, 1948. This retroactivity provision is quite significant,
and gives rise to the conclusion that it was designed precisely to free Caltex from any responsibility
with respect to the fire, as shown by the clause that Caltex "shall not be liable for any injury to person
or property while in the property herein licensed, it being understood and agreed that LICENSEE
(Boquiren) is not an employee, representative or agent of LICENSOR (Caltex)."
But even if the license agreement were to govern, Boquiren can hardly be considered an independent
contractor. Under that agreement Boquiren would pay Caltex the purely nominal sum of P1.00 for the
use of the premises and all the equipment therein. He could sell only Caltex Products. Maintenance of
the station and its equipment was subject to the approval, in other words control, of Caltex. Boquiren
could not assign or transfer his rights as licensee without the consent of Caltex. The license agreement
was supposed to be from January 1, 1948 to December 31, 1948, and thereafter until terminated by
Caltex upon two days prior written notice. Caltex could at any time cancel and terminate the agreement
in case Boquiren ceased to sell Caltex products, or did not conduct the business with due diligence, in
the judgment of Caltex. Termination of the contract was therefore a right granted only to Caltex but not
to Boquiren. These provisions of the contract show the extent of the control of Caltex over Boquiren.
The control was such that the latter was virtually an employee of the former.
Taking into consideration the fact that the operator owed his position to the company and the latter
could remove him or terminate his services at will; that the service station belonged to the company
and bore its tradename and the operator sold only the products of the company; that the equipment
used by the operator belonged to the company and were just loaned to the operator and the company
took charge of their repair and maintenance; that an employee of the company supervised the operator
and conducted periodic inspection of the company's gasoline and service station; that the price of the
products sold by the operator was fixed by the company and not by the operator; and that the receipts
signed by the operator indicated that he was a mere agent, the finding of the Court of Appeals that the
operator was an agent of the company and not an independent contractor should not be disturbed.
To determine the nature of a contract courts do not have or are not bound to rely upon the name or title
given it by the contracting parties, should thereby a controversy as to what they really had intended to
enter into, but the way the contracting parties do or perform their respective obligations stipulated or
agreed upon may be shown and inquired into, and should such performance conflict with the name or
title given the contract by the parties, the former must prevail over the latter. (Shell Company of the
Philippines, Ltd. vs. Firemens' Insurance Company of Newark, New Jersey, 100 Phil. 757).
The written contract was apparently drawn for the purpose of creating the apparent relationship of
employer and independent contractor, and of avoiding liability for the negligence of the employees
about the station; but the company was not satisfied to allow such relationship to exist. The evidence
shows that it immediately assumed control, and proceeded to direct the method by which the work
contracted for should be performed. By reserving the right to terminate the contract at will, it retained
the means of compelling submission to its orders. Having elected to assume control and to direct the
means and methods by which the work has to be performed, it must be held liable for the negligence of
those performing service under its direction. We think the evidence was sufficient to sustain the verdict
of the jury. (Gulf Refining Company v. Rogers, 57 S.W. 2d, 183).
Caltex further argues that the gasoline stored in the station belonged to Boquiren. But no cash invoices
were presented to show that Boquiren had bought said gasoline from Caltex. Neither was there a sales
contract to prove the same.
As found by the trial court the Africas sustained a loss of P9,005.80, after deducting the amount of
P2,000.00 collected by them on the insurance of the house. The deduction is now challenged as
erroneous on the ground that Article 2207 of the New Civil Code, which provides for the subrogation
of the insurer to the rights of the insured, was not yet in effect when the loss took place. However,
regardless of the silence of the law on this point at that time, the amount that should be recovered be
measured by the damages actually suffered, otherwise the principle prohibiting unjust enrichment
would be violated. With respect to the claim of the heirs of Ong P7,500.00 was adjudged by the lower
court on the basis of the assessed value of the property destroyed, namely, P1,500.00, disregarding the
testimony of one of the Ong children that said property was worth P4,000.00. We agree that the court
erred, since it is of common knowledge that the assessment for taxation purposes is not an accurate
gauge of fair market value, and in this case should not prevail over positive evidence of such value.
The heirs of Ong are therefore entitled to P10,000.00.
Wherefore, the decision appealed from is reversed and respondents-appellees are held liable solidarily
to appellants, and ordered to pay them the aforesaid sum of P9,005.80 and P10,000.00, respectively,
with interest from the filing of the complaint, and costs.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-21749 September 29, 1967
REPUBLIC OF THE PHILIPPINES, plaintiff-appellee,
vs.
LUZON STEVEDORING CORPORATION, defendant-appellant.
Office of the Solicitor General for plaintiff-appellee. H. San Luis and L.V. Simbulan for defendant-
appellant.
REYES, J.B.L., J.:
The present case comes by direct appeal from a decision of the Court of First Instance of Manila (Case
No. 44572) adjudging the defendant-appellant, Luzon Stevedoring Corporation, liable in damages to
the plaintiff-appellee Republic of the Philippines.
In the early afternoon of August 17, 1960, barge L-1892, owned by the Luzon Stevedoring Corporation
was being towed down the Pasig river by tugboats "Bangus" and "Barbero" 1 also belonging to the
same corporation, when the barge rammed against one of the wooden piles of the Nagtahan bailey
bridge, smashing the posts and causing the bridge to list. The river, at the time, was swollen and the
current swift, on account of the heavy downpour of Manila and the surrounding provinces on August
15 and 16, 1960.
Sued by the Republic of the Philippines for actual and consequential damage caused by its employees,
amounting to P200,000 (Civil Case No. 44562, CFI of Manila), defendant Luzon Stevedoring
Corporation disclaimed liability therefor, on the grounds that it had exercised due diligence in the
selection and supervision of its employees; that the damages to the bridge were caused by force
majeure ; that plaintiff has no capacity to sue; and that the Nagtahan bailey bridge is an obstruction to
navigation.
After due trial, the court rendered judgment on June 11, 1963, holding the defendant liable for the
damage caused by its employees and ordering it to pay to plaintiff the actual cost of the repair of the
Nagtahan bailey bridge which amounted to P192,561.72, with legal interest thereon from the date of
the filing of the complaint.
Defendant appealed directly to this Court assigning the following errors allegedly committed by the
court a quo , to wit:
I — The lower court erred in not holding that the herein defendant-appellant had exercised the
diligence required of it in the selection and supervision of its personnel to prevent damage or injury to
others.
II — The lower court erred in not holding that the ramming of the Nagtahan bailey bridge by barge L-
1892 was caused by force majeure
III — The lower court erred in not holding that the Nagtahan bailey bridge is an obstruction, if not a
menace, to navigation in the Pasig river.
IV — The lower court erred in not blaming the damage sustained by the Nagtahan bailey bridge to the
improper placement of the dolphins.
V — The lower court erred in granting plaintiff's motion to adduce further evidence in chief after it has
rested its case.
VI — The lower court erred in finding the plaintiff entitled to the amount of P192,561.72 for damages
which is clearly exorbitant and without any factual basis.
However, it must be recalled that the established rule in this jurisdiction is that when a party appeals
directly to the Supreme Court, and submits his case there for decision, he is deemed to have waived the
right to dispute any finding of fact made by the trial Court. The only questions that may be raised are
those of law (Savellano vs. Diaz, L-17441, July 31, 1963; Aballe vs. Santiago, L-16307, April 30,
1963; G.S.I.S. vs. Cloribel, L-22236, June 22, 1965). A converso , a party who resorts to the Court of
Appeals, and submits his case for decision there, is barred from contending later that his claim was
beyond the jurisdiction of the aforesaid Court. The reason is that a contrary rule would encourage the
undesirable practice of appellants' submitting their cases for decision to either court in expectation of
favorable judgment, but with intent of attacking its jurisdiction should the decision be unfavorable
(Tyson Tan, et al. vs. Filipinas Compañia de Seguros) et al., L-10096, Res. on Motion to Reconsider,
March 23, 1966). Consequently, we are limited in this appeal to the issues of law raised in the
appellant's brief.
Taking the aforesaid rules into account, it can be seen that the only reviewable issues in this appeal are
reduced to two:
1) Whether or not the collision of appellant's barge with the supports or piers of the Nagtahan bridge
was in law caused by fortuitous event or force majeure , and 2) Whether or not it was error for the
Court to have permitted the plaintiff-appellee to introduce additional evidence of damages after said
party had rested its case.
As to the first question, considering that the Nagtahan bridge was an immovable and stationary object
and uncontrovertedly provided with adequate openings for the passage of water craft, including barges
like of appellant's, it is undeniable that the unusual event that the barge, exclusively controlled by
appellant, rammed the bridge supports raises a presumption of negligence on the part of appellant or its
employees manning the barge or the tugs that towed it. For in the ordinary course of events, such a
thing does not happen if proper care is used. In Anglo American Jurisprudence, the inference arises by
what is known as the " res ipsa loquitur " rule (Scott vs. London Docks Co., 2 H & C 596; San Juan
Light & Transit Co. vs. Requena, 224 U.S. 89, 56 L. Ed., 680; Whitwell vs. Wolf, 127 Minn. 529, 149
N.W. 299; Bryne vs. Great Atlantic & Pacific Tea Co., 269 Mass. 130; 168 N.E. 540; Gribsby vs.
Smith, 146 S.W. 2d 719).
The appellant strongly stresses the precautions taken by it on the day in question: that it assigned two
of its most powerful tugboats to tow down river its barge L-1892; that it assigned to the task the more
competent and experienced among its patrons , had the towlines, engines and equipment double-
checked and inspected; that it instructed itspatrons to take extra precautions; and concludes that it had
done all it was called to do, and that the accident, therefore, should be held due to force majeure or
fortuitous event.
These very precautions, however, completely destroy the appellant's defense. For caso fortuito or force
majeure (which in law are identical in so far as they exempt an obligor from liability) 2 by definition,
are extraordinary events not foreseeable or avoidable, "events that could not be foreseen, or which,
though foreseen, were inevitable" (Art. 1174, Civ. Code of the Philippines). It is, therefore, not enough
that the event should not have been foreseen or anticipated, as is commonly believed, but it must be
one impossible to foresee or to avoid. The mere difficulty to foresee the happening is not impossibility
to foresee the same: "un hecho no constituye caso fortuito por la sola circunstancia de que su existencia
haga mas dificil o mas onerosa la accion diligente del presento ofensor" (Peirano
Facio, Responsibilidad Extra-contractual , p. 465; Mazeaud Trait de la Responsibilite Civil , Vol. 2,
sec. 1569). The very measures adopted by appellant prove that the possibility of danger was not only
foreseeable, but actually foreseen, and was notcaso fortuito
Otherwise stated, the appellant, Luzon Stevedoring Corporation, knowing and appreciating the perils
posed by the swollen stream and its swift current, voluntarily entered into a situation involving obvious
danger; it therefore assured the risk, and can not shed responsibility merely because the precautions it
adopted turned out to be insufficient. Hence, the lower Court committed no error in holding it
negligent in not suspending operations and in holding it liable for the damages caused.
It avails the appellant naught to argue that the dolphins, like the bridge, were improperly located. Even
if true, these circumstances would merely emphasize the need of even higher degree of care on
appellant's part in the situation involved in the present case. The appellant, whose barges and tugs
travel up and down the river everyday, could not safely ignore the danger posed by these allegedly
improper constructions that had been erected, and in place, for years.
On the second point: appellant charges the lower court with having abused its discretion in the
admission of plaintiff's additional evidence after the latter had rested its case. There is an insinuation
that the delay was deliberate to enable the manipulation of evidence to prejudice defendant-appellant.
We find no merit in the contention. Whether or not further evidence will be allowed after a party
offering the evidence has rested his case, lies within the sound discretion of the trial Judge, and this
discretion will not be reviewed except in clear case of abuse. 3
In the present case, no abuse of that discretion is shown. What was allowed to be introduced, after
plaintiff had rested its evidence in chief, were vouchers and papers to support an item of P1,558.00
allegedly spent for the reinforcement of the panel of the bailey bridge, and which item already
appeared in Exhibit GG. Appellant, in fact, has no reason to charge the trial court of being unfair,
because it was also able to secure, upon written motion, a similar order dated November 24, 1962,
allowing reception of additional evidence for the said defendant-appellant. 4
WHEREFORE, finding no error in the decision of the lower Court appealed from, the same is hereby
affirmed. Costs against the defendant-appellant.
Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 120639 September 25, 1998
BPI EXPRESS CARD CORPORATION, petitioner,
vs.
COURT OF APPEALS and RICARDO J. MARASIGAN, respondents.
KAPUNAN, J.:
The question before this Court is whether private respondent can recover moral damages arising from
the cancellation of his credit card by petitioner credit card corporation.
The facts of the case are as stated in the decision of the respondent court, 1 to wit:
The case arose from the dishonor of the credit card of the plaintiff Atty. Ricardo J.
Marasigan by Café Adriatico, a business establishment accredited with the
defendant-appellate BPI Express Card Corporation (BECC for brevity), on
December 8, 1989 when the plaintiff entertained some guests thereat.
The records of this case show that plaintiff, who is a lawyer by profession, was a
complimentary member of BECC from February 1988 to February 1989 and was
issued Credit Card No. 100-012-5534 with a credit limit of P3,000.00 and with a
monthly billing every 27th of the month (Exh. N), subject to the terms and
conditions stipulated in the contract (Exh. 1-b). His membership was renewed for
another year or until February 1990 and the credit limit was increased to P5,000.00
(Exh. A). The plaintiffs oftentimes exceeded his credit limits (Exhs. I, I-1 to I-12)
but this was never taken against him by the defendant and even his mode of paying
his monthly bills in check was tolerated. Their contractual relations went on
smoothly until his statement of account for October 1989 amounting to P8,987.84
was not paid in due time. The plaintiff admitted having inadvertently failed to pay
his account for the said month because he was in Quezon province attending to some
professional and personal commitments. He was informed by his secretary that
defendant was demanding immediate payment of his outstanding account, was
requiring him to issue a check for P15,000.00 which would include his future bills,
and was threatening to suspend his credit card. Plaintiff issued Far East Bank and
Trust Co. Check No. 494675 in the amount of P15,000.00, postdated December 15,
1989 which was received on November 23, 1989 by Tess Lorenzo, an employee of
the defendant (Exhs. J and J-1), who in turn gave the said check to Jeng Angeles, a
co-employee who handles the account of the plaintiff. The check remained in the
custody of Jeng Angeles. Mr. Roberto Maniquiz, head of the collection department
of defendant was formally informed of the postdated check about a week later. On
November 28, 2989, defendant served plaintiff a letter by ordinary mail informing
him of the temporary suspension of the privileges of his credit card and the inclusion
of his account number in their Caution List. He was also told to refrain from further
use of his credit card to avoid any inconvenience/embarrassment and that unless he
settles his outstanding account with the defendant within 5 days from receipt of the
letter, his membership will be permanently cancelled (Exh. 3). There is no showing
that the plaintiff received this letter before December 8, 1989. Confidential that he
had settled his account with the issuance of the postdated check, plaintiff invited
some guests on December 8, 1989 and entertained them at Café Adriatico. When he
presented his credit card to Café Adriatico for the bill amounting to P735.32, said
card was dishonored. One of his guests, Mary Ellen Ringler, paid the bill by using
her own credit card a Unibankard (Exhs. M, M-1 and M-2).
In a letter addressed to the defendant dated December 12, 1989, plaintiff requested
that he be sent the exact billing due him as of December 15, 1989, to withhold the
deposit of his postdated check and that said check be returned to him because he had
already instructed his bank to stop the payment thereof as the defendant violated
their agreement that the plaintiff issue the check to the defendant to cover his
account amounting to only P8,987.84 on the condition that the defendant will not
suspend the effectivity of the card (Exh. D). A letter dated December 16, 1989 was
sent by the plaintiff to the manager of FEBTC, Ramada Branch, Manila requesting
the bank to stop the payment of the check (Exhs. E, E-1). No reply was received by
plaintiff from the defendant to his letter dated December 12, 1989. Plaintiff sent
defendant another letter dated March 12, 1990 reminding the latter that he had long
rescinded and cancelled whatever arrangement he entered into with defendant and
requesting for his correct billing, less the improper charges and penalties, and for an
explanation within five (5) days from receipt thereof why his card was dishonored on
December 8, 1989 despite assurance to the contrary by defendant's personnel-in-
charge, otherwise the necessary court action shall be filed to hold defendant
 responsible for the humiliation and embarrassment suffered by him (Exh. F).
Plaintiff alleged further that after a few days, a certain Atty. Albano, representing
himself to be working with the office of Atty. Lopez, called him inquiring as to how
the matter can be threshed out extrajudicially but the latter said that such is a serious
matter cannot be discussed over the phone. The defendant served its final demand to
the plaintiff dated March 21, 1990 requiring him to pay in full his overdue account,
including stipulated fees and charges, within 5 days from receipt thereof or face
court action and also to replace the postdated check with cash within the same period
or face criminal suit for violation of Bouncing Check Law (Exh. G/Exh. 13). The
plaintiff in a reply letter dated April 5, 1990 (Exh. H), demanded defendant's
compliance with his request in his first letter dated March 12, 1990 within three (3)
days from receipt, otherwise the plaintiff will file a case against them, . . . . 2
Thus, on May 7, 1990 private respondent filed a complaint for damages against petitioner before the
Regional Trial Court of Makati, Branch 150, docketed as Civil Case No. 90-1174.
After trial the trial court ruled for private respondent, finding that herein petitioner abused its right in
contravention of Article 19 of the Civil Code. 3 The dispositive portion of the decision reads:
Wherefore, judgment is hereby rendered ordering the defendant to pay plaintiff the
following:
1. P 100,000.00 as moral damages;
2. P 50,000.00 as exemplary damages; and
3. P 20,000.00 by way of attorney's fees.
On the other hand, plaintiff is ordered to pay defendant its outstanding obligation in
the amount of P14,439.41, amount due as of December 15, 1989. 4
The trial court's ruling was based on its findings and conclusions, to wit:
There is no question that plaintiff had been in default in the payment of his billings
for more than two months, prompting defendant to call him and reminded him of his
obligation. Unable to personally talk with him, this Court is convinced that somehow
one or another employee of defendant called him up more that once.
However, while it is true that as indicated in the terms and conditions of the
application for BPI credit card upon failure of the cardholder to pay his outstanding
obligation for more that thirty (30) days, the defendant can automatically suspend or
cancel the credit card, that reserved right should not have been abused as it was in
fact abused, in plaintiff's case. What is more peculiar here is that there have been
admitted communications between plaintiff and defendant prior to the suspension or
cancellation of plaintiff's credit card and his inclusion in the cautions list. However,
nowhere in any of these communications was there ever a hint given to plaintiff that
his card had already been suspended or cancelled. In fact, the Court observed that
while defendant was trying its best to persuade plaintiff to update its account and pay
its obligation, it had already taken steps to suspend/cancel plaintiff's card and include
him in the caution list. While the Court admires defendant's diplomacy in dealing
with its clients, it cannot help but frown upon the backhanded way defendant deal
with plaintiff's case. For despite Tess Lorenzo's denial, there is reason to believe that
plaintiff was indeed assured by defendant of the continued honoring of his credit
card so long as he pays his obligation of P15,000.00. Worst, upon receipt of the
postdated check, defendant kept the same until a few days before it became due and
said check was presented to the head of the collection department, Mr. Maniquiz, to
take steps thereon, resulting to the embarrassing situations plaintiff found himself in
on December 8, 1989. Moreover, Mr. Maniquiz himself admitted that his request for
plaintiff to replace the check with cash was not because it was a postdated check but
merely to tally the payment with the account due.
Likewise, the Court is not persuaded by the sweeping denials made by Tess Lorenzo
and her claim that her only participation was to receive the subject check. Her
immediate superior, Mr. Maniquiz testified that he had instructed Lorenzo to
communicate with plaintiff once or twice to request the latter to replace the
questioned check with cash, thus giving support to the testimony of plaintiff's
witness, Dolores Quizon, that it was one Tess Lorenzo whom she had talked over the
phone regarding plaintiff's account and plaintiff's own statement that it was this
woman who assured him that his card has not yet been and will not be
cancelled/suspended if he would pay defendant the sum of P15,000.00.
Now, on the issue of whether or not upon receipt of the subject check defendant had
agreed that the card shall remain effective the Court takes note of the following:
1. An employee of defendant corporation unconditionally accepted the subject check
upon its delivery despite its being a postdated one; and the amount did not tally with
plaintiff's obligation;
2. Defendant did not deny nor controvert plaintiff's claim that all of his payments
were made in checks;
3. Defendant's main witness, Mr. Maniquiz, categorically stated that the request for
plaintiff to replace his postdated check with a cash was merely for the purpose of
tallying plaintiff's outstanding obligation with his payment and not to question the
postdated check;
4. That the card was suspended almost a week after receipt of the postdated check;
5. That despite the many instances that defendant could have informed plaintiff over
the phone of the cancellation or suspension of his credit card, it did not do so, which
could have prevented the incident of December 8, 1989, the notice allegedly sent
thru ordinary mail is not only unreliable but takes a long time. Such action as
suspension of credit card must be immediately relayed to the person affected so as to
avoid embarrassing situations.
6. And that the postdated check was deposited on December 20, 1989.
In view of the foregoing observations, it is needless to say that there was indeed an
arrangement between plaintiff and the defendant, as can be inferred from the acts of
the defendant's employees, that the subject credit card is still good and could still be
used by the plaintiff as it would be honored by the duly accredited establishment of
defendant.
Not satisfied with the Regional Trial Court's decision, petitioner appealed to the Court of Appeals,
which in a decision promulgated on March 9, 1995 ruled in its dispositive portion.
WHEREFORE, premises considered the decision appealed from is hereby
AFFIRMED with the MODIFICATION that the defendant-appellant shall pay the
 plaintiff-appellee the following: P50,000.00 as moral damages: P25,000.00 as
exemplary damages; and P10,000.00 by way of attorney's fees.
SO ORDERED. 6
Hence, the present petition on the following assignment of errors:
I
THE LOWER COURT ERRED IN DECLARING THAT THERE WAS INDEED
AN AGREEMENT OR ARRANGEMENT ENTERED INTO BETWEEN THE
PARTIES WHEREIN THE DEFENDANT REQUIRED THE PLAINTIFF TO
ISSUE A POSTDATED CHECK IN ITS FAVOR IN THE AMOUNT OF
P15,000.00 AS PAYMENT FOR HIS OVERDUE ACCOUNTS, WITH THE
CONDITION THAT THE PLAINTIFF'S CREDIT CARD WILL NOT BE
SUSPENDED OR CANCELLED.
II
THE LOWER COURT ERRED IN HOLDING DEFENDANT LIABLE FOR
DAMAGES AND ATTORNEY'S FEES ARISING OUT FROM THE DISHONOR
OF THE PLAINTIFF'S CREDIT CARD. 7
We find the petition meritorious.
The first issue to be resolved is whether petitioner had the right to suspend the credit card of the private
respondent.
Under the terms and conditions of the credit card, signed by the private respondent, any card with
outstanding balances after thirty (30) days from original billing/statement shall automatically be
suspended, thus:
PAYMENT OF CHARGES — BECC shall furnish the Cardholder a monthly
statement of account made through the use of the CARD and the Cardholder agrees
that all charges made through the use of the CARD shall be paid by the Cardholder
on or before the last day for payment, which is twenty (20) days from the date of the
said statement of account; and such payment due date may be changed to an earlier
date if the Cardholder's account is considered overdue and/or with balances in excess
of the approved credit limit; or to such other date as may be deemed proper by the
CARD issuer with notice to the Cardholder on the same monthly statement of
account. If the last day for payment falls on a Saturday, Sunday or Holiday, the last
day for payment automatically becomes the last working day prior to the said
payment date. However, notwithstanding the absence or lack of proof of service of
the statement of charges to the Cardholder, the latter shall pay any or all charges
made through the use of the CARD within thirty (30) days from the date or dates
thereof. Failure of Cardholder to pay any and all charges made through the CARD
within the payment period as stated in the statement of charges or with in thirty (30)
days from actual date or dates whichever occur earlier, shall render him in default
without the necessity of demand from BECC, which the Cardholder expressly
waives. These charges or balance thereof remaining unpaid after the payment due
date indicated on the monthly statement of account shall bear interest of 3% per
month and an additional penalty fee equivalent to another 3% of the amount due for
every month or a fraction of a month's delay. PROVIDED, that if there occurs any
changes on the prevailing market rates BECC shall have the option to adjust the rate
of interest and/or penalty fee due on the outstanding obligation with prior notice to
the Cardholder.
xxx xxx xxx
Any CARD with outstanding balances unpaid after thirty (30) days from original
billing/statement date shall automatically be suspended and those with accounts
unpaid after sixty (60) days from said original billing/statement date shall
automatically be cancelled without prejudice to BECC's right to suspend or cancel
any CARD any time and for whatever reason. In case of default in his obligation as
provided for in the preceding paragraph, Cardholder shall surrender his CARD to
BECC and shall in addition to the interest and penalty charges aforementioned, pay
the following liquidated damages and/or fees (a) a collection fee of 25% of the
amount due if the account is referred to a collection agency or attorney; (b) a service
fee of P100 for every dishonored check issued by the Cardholder's in payment of his
account, without prejudice; however to BECC's right of considering Cardholder's
obligation unpaid; cable cost for demanding payment or advising cancellation of
membership shall also be for Cardholder's account; and (c) a final fee equivalent to
25% of the unpaid balance, exclusive of litigation expenses and judicial costs, if the
payment of the account is enforced through court action. 8
The aforequoted provision of the card cannot be any clearer. By his own admission private respondent
no payment within thirty days for his billing/statement dated 27 September 1989. Neither did he make
payment for his original billing/statement dated 27 October 1989. Consequently as early as 28 October
1989 thirty days from the non-payment of his billing dated 27 September 1989, petitioner corporation
could automatically suspend his credit card.
The next issue is whether prior to the suspension of private respondent's credit card on 28 November
1989 the parties entered into an agreement whereby the card could still be used and would be duly
honored by duly accredited establishments.
We agree with the findings of the respondent court, that there was an arrangement between the parties,
wherein the petitioner required the private respondent to issue a check worth P15,000.00 as payment
for the latter's billings. However we find that the private respondent was not able to comply with this
obligation.
As the testimony of private respondent himself bears out, the agreement was for the immediate
payment of the outstanding account:
Q In said statement of account that you are supposed to pay the
P8,974.84 the charge of interest and penalties, did you note that?
A Yes, sir I noted the date.
Q When?
A When I returned from the Quezon province, sir
Q When?
A I think November 22, sir.
Q So that before you used again the credit card you were not able
to pay immediately this P8,987.84 in cash?
A I paid P15,000.00, sir.
 Q My question Mr. witness is, did you pay this P8,987.84 in
charge of interest and penalties immediately in cash?
A In cash no, but in check, sir.
Q You said that you noted the word "immediately" in bold letters
in your statement of accounts, why did not pay immediately?
A Because I received that late, sir.
Q Yes, on November 22 when you received from the secretary of
the defendant telling you to pay the principal amount of P8,987.84,
why did you not pay?
A There was a communication between me and the defendant, I
was required to pay P8,000.00 but I paid in check for P15,000.00,
sir.
Q Do you have any evidence to show that the defendant required
you to pay in check for P15,000.00?
A Yes, sir.
Q Where is it?
A It was telecommunication, sir.
Q So there is no written communication between you and the
defendant?
A There was none, sir.
Q There is no written agreement which says that P8,987.84 should
be paid for P15,000.00 in check, there is none?
A Yes, no written agreement, sir.
Q And you as a lawyer you know that a check is not considered as
cash specially when it is postdated sent to the defendant?
A That is correct, sir.
Clearly the purpose of the arrangement between the parties on November 22, 1989, was for the
immediate payment of the private respondent's outstanding account, in order that his credit card would
not be suspended.
As agreed upon by the parties, on the following day, private respondent did issue a check for
P15,000.00. However, the check was postdated 15 December 1989. Settled is the doctrine that a check
is only a substitute for money and not money, the delivery of such an instrument does not, by itself
operate as payment. 9 This is especially true in the case of a postdated check.
Thus, the issuance by the private respondent of the postdated check was not effective payment. It did
not comply with his obligation under the arrangement with Miss Lorenzo. Petitioner corporation was
therefore justified in suspending his credit card.
Finally, we find no legal and factual basis for private respondent's assertion that in canceling the credit
card of the private respondent, petitioner abused its right under the terms and conditions of the
contract.
To find the existence of an abuse of right Article 19 the following elements must be present (1) There
is a legal right or duty; (2) which is exercised in bad faith; (3) for the sole intent of prejudicing or
injuring another. 10
Time and again this Court has held that good faith is presumed and the burden of proving bad faith is
on the party alleging it.11 This private respondent failed to do. In fact, the action of the petitioner belies
the existence of bad faith. As early as 28 October 1989, petitioner could have suspended private
respondent's card outright. Instead, petitioner allowed private respondent to use his card for several
weeks. Petitioner had even notified private respondent of the impending suspension of his credit card
and made special accommodations for him for setting his outstanding account. As such, petitioner
cannot be said to have capriciously and arbitrarily canceled the private respondent's credit card.
We do not dispute the findings of the lower court that private respondent suffered damages as a result
of the cancellation of his credit card. However, there is a material distinction between damages and
injury. Injury is the illegal invasion of a legal right; damage is the loss, hurt or harm which results from
the injury; and damages are the recompense or compensation awarded for the damage suffered. Thus,
there can be damage without injury in those instances in which the loss or harm was not the results of a
violation of a legal duty. In such cases, the consequences must be borne by the injured person alone,
the law affords no remedy for damages resulting from an act which does not amount to a legal injury
or wrong. These situations are often called damnum absque
injuria. 12
In other words, in order that the plaintiff may maintain an action for the injuries of which he
complaints, he must establish that such injuries resulted from a breach of duty which the defendant
owed to the plaintiff a concurrence of injury to the plaintiff and legal responsibility by the person
causing it. The underlying basis for the award of tort damages is the premise that an individual was
injured in contemplation of law. Thus, there must first be a breach of some duty and the imposition of
liability for that breach before damages may be awarded; 13 and the breach of such duty should be the
proximate cause of the injury.
We therefore disagree with the ruling of the respondent court that the dishonor of the credit card of the
private respondent by Café Adriatico is attributable to petitioner for its willful or gross neglect to
inform the private respondent of the suspension of his credit card, the unfortunate consequence of
which brought social humiliation and embarrassment to the private respondent. 14
It was petitioner's failure to settle his obligation which caused the suspension of his credit card and
subsequent dishonor at Café Adriatico. He can not now pass the blame to the petitioner for not
notifying him of the suspension of his card. As quoted earlier, the application contained the stipulation
that the petitioner could automatically suspend a card whose billing has not been paid for more than
thirty days. Nowhere is it stated in the terms and conditions of the application that there is a need of
notice before suspension may be affected as private respondent claims. 15
This notwithstanding on November 28, 1989, the day of the suspension of private respondent's card,
petitioner sent a letter by ordinary mail notifying private respondent that his card had been temporarily
suspended. Under the Rules on Evidence, there is a disputable presumption that letters duly directed
and mailed were received on the regular course of mail. 16 Aside from the private respondent's bare
denial he failed to present evidence to rebut the presumption that he received said notice. In fact upon
cross examination private respondent admitted that he did receive the letter notifying him of the
cancellation:
Q Now you were saying that there was a first letter sent to you by
the defendant?
 A Your letter, sir.
Q Was that the first letter that you received?
A Yes, sir.
Q It is that there was a communication first between you and the
defendant?
A There was none, sir. I received a cancellation notice but that
was after November 27. 17
As it was private respondent's own negligence which was the proximate cause of his embarrassing and
humiliating experience, we find the award of damages by the respondent court clearly unjustified. We
take note of the fact that private respondent has not yet paid his outstanding account with petitioner.
IN VIEW OF THE FOREGOING, the decision of the Court of Appeals ordering petitioner to pay
private respondent P100,000.00 as moral damages P50,000.00 as exemplary damages and P20,000.00
as attorney's fees, is SET ASIDE. Private respondent is DIRECTED to pay his outstanding obligation
with the petitioner in the amount of P14,439.41.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 81262 August 25, 1989
GLOBE MACKAY CABLE AND RADIO CORP., and HERBERT C. HENDRY, petitioners,
vs.
THE HONORABLE COURT OF APPEALS and RESTITUTO M. TOBIAS, respondents.
Atencia & Arias Law Offices for petitioners.
Romulo C. Felizmena for private respondent.
CORTES, J.:
Private respondent Restituto M. Tobias was employed by petitioner Globe Mackay Cable and Radio
Corporation (GLOBE MACKAY) in a dual capacity as a purchasing agent and administrative assistant
to the engineering operations manager. In 1972, GLOBE MACKAY discovered fictitious purchases
and other fraudulent transactions for which it lost several thousands of pesos.
According to private respondent it was he who actually discovered the anomalies and reported them on
November 10, 1972 to his immediate superior Eduardo T. Ferraren and to petitioner Herbert C. Hendry
who was then the Executive Vice-President and General Manager of GLOBE MACKAY.
On November 11, 1972, one day after private respondent Tobias made the report, petitioner Hendry
confronted him by stating that he was the number one suspect, and ordered him to take a one week
forced leave, not to communicate with the office, to leave his table drawers open, and to leave the
office keys.
On November 20, 1972, when private respondent Tobias returned to work after the forced leave,
petitioner Hendry went up to him and called him a "crook" and a "swindler." Tobias was then ordered
to take a lie detector test. He was also instructed to submit specimen of his handwriting, signature, and
initials for examination by the police investigators to determine his complicity in the anomalies.
On December 6,1972, the Manila police investigators submitted a laboratory crime report (Exh. "A")
clearing private respondent of participation in the anomalies.
Not satisfied with the police report, petitioners hired a private investigator, retired Col. Jose G.
Fernandez, who on December 10, 1972, submitted a report (Exh. "2") finding Tobias guilty. This
report however expressly stated that further investigation was still to be conducted.
Nevertheless, on December 12, 1972, petitioner Hendry issued a memorandum suspending Tobias
from work preparatory to the filing of criminal charges against him.
On December 19,1972, Lt. Dioscoro V. Tagle, Metro Manila Police Chief Document Examiner, after
investigating other documents pertaining to the alleged anomalous transactions, submitted a second
laboratory crime report (Exh. "B") reiterating his previous finding that the handwritings, signatures,
and initials appearing in the checks and other documents involved in the fraudulent transactions were
not those of Tobias. The lie detector tests conducted on Tobias also yielded negative results.
Notwithstanding the two police reports exculpating Tobias from the anomalies and the fact that the
report of the private investigator, was, by its own terms, not yet complete, petitioners filed with the
City Fiscal of Manila a complaint for estafa through falsification of commercial documents, later
amended to just estafa. Subsequently five other criminal complaints were filed against Tobias, four of
which were for estafa through Falsification of commercial document while the fifth was for of Article
290 of' the Revised Penal Code (Discovering Secrets Through Seizure of
Correspondence).lâwphî1.ñèt Two of these complaints were refiled with the Judge Advocate General's
Office, which however, remanded them to the fiscal's office. All of the six criminal complaints were
dismissed by the fiscal. Petitioners appealed four of the fiscal's resolutions dismissing the criminal
complaints with the Secretary of Justice, who, however, affirmed their dismissal.
In the meantime, on January 17, 1973, Tobias received a notice (Exh. "F") from petitioners that his
employment has been terminated effective December 13, 1972. Whereupon, Tobias filed a complaint
for illegal dismissal. The labor arbiter dismissed the complaint. On appeal, the National Labor
Relations Commission (NLRC) reversed the labor arbiter's decision. However, the Secretary of Labor,
acting on petitioners' appeal from the NLRC ruling, reinstated the labor arbiter's decision. Tobias
appealed the Secretary of Labor's order with the Office of the President. During the pendency of the
appeal with said office, petitioners and private respondent Tobias entered into a compromise
agreement regarding the latter's complaint for illegal dismissal.
Unemployed, Tobias sought employment with the Republic Telephone Company (RETELCO).
However, petitioner Hendry, without being asked by RETELCO, wrote a letter to the latter stating that
Tobias was dismissed by GLOBE MACKAY due to dishonesty.
Private respondent Tobias filed a civil case for damages anchored on alleged unlawful, malicious,
oppressive, and abusive acts of petitioners. Petitioner Hendry, claiming illness, did not testify during
the hearings. The Regional Trial Court (RTC) of Manila, Branch IX, through Judge Manuel T. Reyes
rendered judgment in favor of private respondent by ordering petitioners to pay him eighty thousand
pesos (P80,000.00) as actual damages, two hundred thousand pesos (P200,000.00) as moral damages,
twenty thousand pesos (P20,000.00) as exemplary damages, thirty thousand pesos (P30,000.00) as
attorney's fees, and costs. Petitioners appealed the RTC decision to the Court of Appeals. On the other
hand, Tobias appealed as to the amount of damages. However, the Court of Appeals, an a decision
dated August 31, 1987 affirmed the RTC decision in toto. Petitioners' motion for reconsideration
having been denied, the instant petition for review on certiorari was filed.
The main issue in this case is whether or not petitioners are liable for damages to private respondent.
Petitioners contend that they could not be made liable for damages in the lawful exercise of their right
to dismiss private respondent.
On the other hand, private respondent contends that because of petitioners' abusive manner in
dismissing him as well as for the inhuman treatment he got from them, the Petitioners must indemnify
him for the damage that he had suffered.
One of the more notable innovations of the New Civil Code is the codification of "some basic
principles that are to be observed for the rightful relationship between human beings and for the
stability of the social order." [REPORT ON THE CODE COMMISSION ON THE PROPOSED
CIVIL CODE OF THE PHILIPPINES, p. 39]. The framers of the Code, seeking to remedy the defect
of the old Code which merely stated the effects of the law, but failed to draw out its spirit, incorporated
certain fundamental precepts which were "designed to indicate certain norms that spring from the
fountain of good conscience" and which were also meant to serve as "guides for human conduct [that]
should run as golden threads through society, to the end that law may approach its supreme ideal,
which is the sway and dominance of justice" (Id.) Foremost among these principles is that pronounced
in Article 19 which provides:
Art. 19. Every person must, in the exercise of his rights and in the performance of his
duties, act with justice, give everyone his due, and observe honesty and good faith.
This article, known to contain what is commonly referred to as the principle of abuse of rights, sets
certain standards which must be observed not only in the exercise of one's rights but also in the
performance of one's duties. These standards are the following: to act with justice; to give everyone his
due; and to observe honesty and good faith. The law, therefore, recognizes a primordial limitation on
all rights; that in their exercise, the norms of human conduct set forth in Article 19 must be observed.
A right, though by itself legal because recognized or granted by law as such, may nevertheless become
the source of some illegality. When a right is exercised in a manner which does not conform with the
norms enshrined in Article 19 and results in damage to another, a legal wrong is thereby committed for
which the wrongdoer must be held responsible. But while Article 19 lays down a rule of conduct for
the government of human relations and for the maintenance of social order, it does not provide a
remedy for its violation. Generally, an action for damages under either Article 20 or Article 21 would
be proper.
Article 20, which pertains to damage arising from a violation of law, provides that:
Art. 20. Every person who contrary to law, wilfully or negligently causes damage to
another, shall indemnify the latter for the same.
However, in the case at bar, petitioners claim that they did not violate any provision of law since they
were merely exercising their legal right to dismiss private respondent. This does not, however, leave
private respondent with no relief because Article 21 of the Civil Code provides that:
Art. 21. Any person who wilfully causes loss or injury to another in a manner that is
contrary to morals, good customs or public policy shall compensate the latter for the
damage.
This article, adopted to remedy the "countless gaps in the statutes, which leave so many victims of
moral wrongs helpless, even though they have actually suffered material and moral injury" [Id.] should
"vouchsafe adequate legal remedy for that untold number of moral wrongs which it is impossible for
human foresight to provide for specifically in the statutes" [Id. it p. 40; See also PNB v. CA, G.R. No.
L-27155, May 18,1978, 83 SCRA 237, 247].
In determining whether or not the principle of abuse of rights may be invoked, there is no rigid test
which can be applied. While the Court has not hesitated to apply Article 19 whether the legal and
factual circumstances called for its application [See for e.g., Velayo v. Shell Co. of the Phil., Ltd., 100
Phil. 186 (1956); PNB v. CA, supra;Grand Union Supermarket, Inc. v. Espino, Jr., G.R. No. L-48250,
December 28, 1979, 94 SCRA 953; PAL v. CA, G.R. No. L-46558, July 31,1981,106 SCRA 391;
United General Industries, Inc, v. Paler G.R. No. L-30205, March 15,1982,112 SCRA 404; Rubio v.
CA, G.R. No. 50911, August 21, 1987, 153 SCRA 183] the question of whether or not the principle of
abuse of rights has been violated resulting in damages under Article 20 or Article 21 or other
applicable provision of law, depends on the circumstances of each case. And in the instant case, the
Court, after examining the record and considering certain significant circumstances, finds that all
petitioners have indeed abused the right that they invoke, causing damage to private respondent and for
which the latter must now be indemnified.
The trial court made a finding that notwithstanding the fact that it was private respondent Tobias who
reported the possible existence of anomalous transactions, petitioner Hendry "showed belligerence and
told plaintiff (private respondent herein) that he was the number one suspect and to take a one week
vacation leave, not to communicate with the office, to leave his table drawers open, and to leave his
keys to said defendant (petitioner Hendry)" [RTC Decision, p. 2; Rollo, p. 232]. This, petitioners do
not dispute. But regardless of whether or not it was private respondent Tobias who reported the
anomalies to petitioners, the latter's reaction towards the former upon uncovering the anomalies was
less than civil. An employer who harbors suspicions that an employee has committed dishonesty might
be justified in taking the appropriate action such as ordering an investigation and directing the
employee to go on a leave. Firmness and the resolve to uncover the truth would also be expected from
such employer. But the high-handed treatment accorded Tobias by petitioners was certainly uncalled
for. And this reprehensible attitude of petitioners was to continue when private respondent returned to
work on November 20, 1972 after his one week forced leave. Upon reporting for work, Tobias was
confronted by Hendry who said. "Tobby, you are the crook and swindler in this company."
Considering that the first report made by the police investigators was submitted only on December 10,
1972 [See Exh. A] the statement made by petitioner Hendry was baseless. The imputation of guilt
without basis and the pattern of harassment during the investigations of Tobias transgress the standards
of human conduct set forth in Article 19 of the Civil Code. The Court has already ruled that the right of
the employer to dismiss an employee should not be confused with the manner in which the right is
exercised and the effects flowing therefrom. If the dismissal is done abusively, then the employer is
liable for damages to the employee [Quisaba v. Sta. Ines-Melale Veneer and Plywood Inc., G.R. No.
L-38088, August 30, 1974, 58 SCRA 771; See also Philippine Refining Co., Inc. v. Garcia, G.R. No.
L-21871, September 27,1966, 18 SCRA 107] Under the circumstances of the instant case, the
petitioners clearly failed to exercise in a legitimate manner their right to dismiss Tobias, giving the
latter the right to recover damages under Article 19 in relation to Article 21 of the Civil Code.
But petitioners were not content with just dismissing Tobias. Several other tortious acts were
committed by petitioners against Tobias after the latter's termination from work. Towards the latter
part of January, 1973, after the filing of the first of six criminal complaints against Tobias, the latter
talked to Hendry to protest the actions taken against him. In response, Hendry cut short Tobias'
protestations by telling him to just confess or else the company would file a hundred more cases
against him until he landed in jail. Hendry added that, "You Filipinos cannot be trusted." The threat
unmasked petitioner's bad faith in the various actions taken against Tobias. On the other hand, the
scornful remark about Filipinos as well as Hendry's earlier statements about Tobias being a "crook"
and "swindler" are clear violations of 'Tobias' personal dignity [See Article 26, Civil Code].
The next tortious act committed by petitioners was the writing of a letter to RETELCO sometime in
October 1974, stating that Tobias had been dismissed by GLOBE MACKAY due to dishonesty.
Because of the letter, Tobias failed to gain employment with RETELCO and as a result of which,
Tobias remained unemployed for a longer period of time. For this further damage suffered by Tobias,
petitioners must likewise be held liable for damages consistent with Article 2176 of the Civil Code.
Petitioners, however, contend that they have a "moral, if not legal, duty to forewarn other employers of
the kind of employee the plaintiff (private respondent herein) was." [Petition, p. 14; Rollo, p. 15].
Petitioners further claim that "it is the accepted moral and societal obligation of every man to advise or
warn his fellowmen of any threat or danger to the latter's life, honor or property. And this includes
warning one's brethren of the possible dangers involved in dealing with, or accepting into confidence, a
man whose honesty and integrity is suspect" [Id.]. These arguments, rather than justify petitioners' act,
reveal a seeming obsession to prevent Tobias from getting a job, even after almost two years from the
time Tobias was dismissed.
Finally, there is the matter of the filing by petitioners of six criminal complaints against Tobias.
Petitioners contend that there is no case against them for malicious prosecution and that they cannot be
"penalized for exercising their right and prerogative of seeking justice by filing criminal complaints
against an employee who was their principal suspect in the commission of forgeries and in the
perpetration of anomalous transactions which defrauded them of substantial sums of money" [Petition,
p. 10, Rollo, p. 11].
While sound principles of justice and public policy dictate that persons shall have free resort to the
courts for redress of wrongs and vindication of their rights [Buenaventura v. Sto. Domingo, 103 Phil.
239 (1958)], the right to institute criminal prosecutions can not be exercised maliciously and in bad
faith [Ventura v. Bernabe, G.R. No. L-26760, April 30, 1971, 38 SCRA 5871.] Hence, in Yutuk V.
Manila Electric Co., G.R. No. L-13016, May 31, 1961, 2 SCRA 337, the Court held that the right to
file criminal complaints should not be used as a weapon to force an alleged debtor to pay an
indebtedness. To do so would be a clear perversion of the function of the criminal processes and of the
courts of justice. And in Hawpia CA, G.R. No. L-20047, June 30, 1967. 20 SCRA 536 the Court
upheld the judgment against the petitioner for actual and moral damages and attorney's fees after
making a finding that petitioner, with persistence, filed at least six criminal complaints against
respondent, all of which were dismissed.
To constitute malicious prosecution, there must be proof that the prosecution was prompted by a
design to vex and humiliate a person and that it was initiated deliberately by the defendant knowing
that the charges were false and groundless [Manila Gas Corporation v. CA, G.R. No. L-44190, October
30,1980, 100 SCRA 602]. Concededly, the filing of a suit by itself, does not render a person liable for
malicious prosecution [Inhelder Corporation v. CA, G.R. No. 52358, May 301983122 SCRA 576]. The
mere dismissal by the fiscal of the criminal complaint is not a ground for an award of damages for
malicious prosecution if there is no competent evidence to show that the complainant had acted in bad
faith [Sison v. David, G.R. No. L-11268, January 28,1961, 1 SCRA 60].
In the instant case, however, the trial court made a finding that petitioners acted in bad faith in filing
the criminal complaints against Tobias, observing that:
xxx
Defendants (petitioners herein) filed with the Fiscal's Office of Manila a total of six
(6) criminal cases, five (5) of which were for estafa thru falsification of commercial
document and one for violation of Art. 290 of the Revised Penal Code "discovering
secrets thru seizure of correspondence," and all were dismissed for insufficiency or
lack of evidence." The dismissal of four (4) of the cases was appealed to the Ministry
of Justice, but said Ministry invariably sustained the dismissal of the cases. As above
adverted to, two of these cases were refiled with the Judge Advocate General's
Office of the Armed Forces of the Philippines to railroad plaintiffs arrest and
detention in the military stockade, but this was frustrated by a presidential decree
transferring criminal cases involving civilians to the civil courts.
xxx
To be sure, when despite the two (2) police reports embodying the findings of Lt.
Dioscoro Tagle, Chief Document Examiner of the Manila Police Department,
clearing plaintiff of participation or involvement in the fraudulent transactions
complained of, despite the negative results of the lie detector tests which defendants
compelled plaintiff to undergo, and although the police investigation was "still under
follow-up and a supplementary report will be submitted after all the evidence has
been gathered," defendants hastily filed six (6) criminal cases with the city Fiscal's
Office of Manila, five (5) for estafa thru falsification of commercial document and
one (1) for violation of Art. 290 of the Revised Penal Code, so much so that as was
to be expected, all six (6) cases were dismissed, with one of the investigating fiscals,
Asst. Fiscal de Guia, commenting in one case that, "Indeed, the haphazard way this
case was investigated is evident. Evident likewise is the flurry and haste in the filing
of this case against respondent Tobias," there can be no mistaking that defendants
would not but be motivated by malicious and unlawful intent to harass, oppress, and
cause damage to plaintiff.
xxx
[RTC Decision, pp. 5-6; Rollo, pp. 235-236].
In addition to the observations made by the trial court, the Court finds it significant that the criminal
complaints were filed during the pendency of the illegal dismissal case filed by Tobias against
petitioners. This explains the haste in which the complaints were filed, which the trial court earlier
noted. But petitioners, to prove their good faith, point to the fact that only six complaints were filed
against Tobias when they could have allegedly filed one hundred cases, considering the number of
anomalous transactions committed against GLOBE MACKAY. However, petitioners' good faith is
belied by the threat made by Hendry after the filing of the first complaint that one hundred more cases
would be filed against Tobias. In effect, the possible filing of one hundred more cases was made to
hang like the sword of Damocles over the head of Tobias. In fine, considering the haste in which the
criminal complaints were filed, the fact that they were filed during the pendency of the illegal
dismissal case against petitioners, the threat made by Hendry, the fact that the cases were filed
notwithstanding the two police reports exculpating Tobias from involvement in the anomalies
committed against GLOBE MACKAY, coupled by the eventual dismissal of all the cases, the Court is
led into no other conclusion than that petitioners were motivated by malicious intent in filing the six
criminal complaints against Tobias.
Petitioners next contend that the award of damages was excessive. In the complaint filed against
petitioners, Tobias prayed for the following: one hundred thousand pesos (P100,000.00) as actual
damages; fifty thousand pesos (P50,000.00) as exemplary damages; eight hundred thousand pesos
(P800,000.00) as moral damages; fifty thousand pesos (P50,000.00) as attorney's fees; and costs. The
trial court, after making a computation of the damages incurred by Tobias [See RTC Decision, pp. 7-8;
Rollo, pp. 154-1551, awarded him the following: eighty thousand pesos (P80,000.00) as actual
damages; two hundred thousand pesos (P200,000.00) as moral damages; twenty thousand pesos
(P20,000.00) as exemplary damages; thirty thousand pesos (P30,000.00) as attorney's fees; and, costs.
It must be underscored that petitioners have been guilty of committing several actionable tortious acts,
i.e., the abusive manner in which they dismissed Tobias from work including the baseless imputation
of guilt and the harassment during the investigations; the defamatory language heaped on Tobias as
well as the scornful remark on Filipinos; the poison letter sent to RETELCO which resulted in Tobias'
loss of possible employment; and, the malicious filing of the criminal complaints. Considering the
extent of the damage wrought on Tobias, the Court finds that, contrary to petitioners' contention, the
amount of damages awarded to Tobias was reasonable under the circumstances.
Yet, petitioners still insist that the award of damages was improper, invoking the principle of damnum
absqueinjuria. It is argued that "[t]he only probable actual damage that plaintiff (private respondent
herein) could have suffered was a direct result of his having been dismissed from his employment,
which was a valid and legal act of the defendants-appellants (petitioners herein).lâwphî1.ñèt "
[Petition, p. 17; Rollo, p. 18].
According to the principle of damnum absque injuria, damage or loss which does not constitute a
violation of a legal right or amount to a legal wrong is not actionable [Escano v. CA, G.R. No. L-
47207, September 25, 1980, 100 SCRA 197; See also Gilchrist v. Cuddy 29 Phil, 542 (1915); The
Board of Liquidators v. Kalaw, G.R. No. L-18805, August 14, 1967, 20 SCRA 987]. This principle
finds no application in this case. It bears repeating that even granting that petitioners might have had
the right to dismiss Tobias from work, the abusive manner in which that right was exercised amounted
to a legal wrong for which petitioners must now be held liable. Moreover, the damage incurred by
Tobias was not only in connection with the abusive manner in which he was dismissed but was also the
result of several other quasi-delictual acts committed by petitioners.
Petitioners next question the award of moral damages. However, the Court has already ruled
in Wassmer v. Velez, G.R. No. L-20089, December 26, 1964, 12 SCRA 648, 653, that [p]er express
provision of Article 2219 (10) of the New Civil Code, moral damages are recoverable in the cases
mentioned in Article 21 of said Code." Hence, the Court of Appeals committed no error in awarding
moral damages to Tobias.
Lastly, the award of exemplary damages is impugned by petitioners. Although Article 2231 of the
Civil Code provides that "[i]n quasi-delicts, exemplary damages may be granted if the defendant acted
with gross negligence," the Court, in Zulueta v. Pan American World Airways, Inc., G.R. No. L-
28589, January 8, 1973, 49 SCRA 1, ruled that if gross negligence warrants the award of exemplary
damages, with more reason is its imposition justified when the act performed is deliberate, malicious
and tainted with bad faith. As in the Zuluetacase, the nature of the wrongful acts shown to have been
committed by petitioners against Tobias is sufficient basis for the award of exemplary damages to the
latter.
WHEREFORE, the petition is hereby DENIED and the decision of the Court of Appeals in CA-G.R.
CV No. 09055 is AFFIRMED.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 150666 August 3, 2010
LUCIANO BRIONES and NELLY BRIONES, Petitioners,
vs.
JOSE MACABAGDAL, FE D. MACABAGDAL and VERGON REALTY INVESTMENTS
CORPORATION,Respondents.
DECISION
VILLARAMA, JR., J.:
On appeal under Rule 45 of the 1997 Rules of Civil Procedure, as amended, is the Decision1 dated
December 11, 2000 of the Court of Appeals (CA) in CA-G.R. CV No. 48109 which affirmed the
September 29, 1993 Decision2 of the Regional Trial Court (RTC) of Makati City, Branch 135, ordering
petitioners Luciano and Nelly Briones to remove the improvements they have made on the disputed
property or to pay respondent-spouses Jose and Fe Macabagdal the prevailing price of the land as
compensation.
The undisputed factual antecedents of the case are as follows:
Respondent-spouses purchased from Vergon Realty Investments Corporation (Vergon) Lot No. 2-R, a
325-square-meter land located in Vergonville Subdivision No. 10 at Las Piñas City, Metro Manila and
covered by Transfer Certificate of Title No. 62181 of the Registry of Deeds of Pasay City. On the other
hand, petitioners are the owners of Lot No. 2-S, which is adjacent to Lot No. 2-R.
Sometime in 1984, after obtaining the necessary building permit and the approval of Vergon,
petitioners constructed a house on Lot No. 2-R which they thought was Lot No. 2-S. After being
informed of the mix up by Vergon’s manager, respondent-spouses immediately demanded petitioners
to demolish the house and vacate the property. Petitioners, however, refused to heed their demand.
Thus, respondent-spouses filed an action to recover ownership and possession of the said parcel of land
with the RTC of Makati City.3
Petitioners insisted that the lot on which they constructed their house was the lot which was
consistently pointed to them as theirs by Vergon’s agents over the seven (7)-year period they were
paying for the lot. They interposed the defense of being buyers in good faith and impleaded Vergon as
third-party defendant claiming that because of the warranty against eviction, they were entitled to
indemnity from Vergon in case the suit is decided against them.4
The RTC ruled in favor of respondent-spouses and found that petitioners’ house was undoubtedly built
on Lot No. 2-R. The dispositive portion of the trial court’s decision reads as follows:
PREMISES CONSIDERED, let judgment be rendered declaring, to wit:
1. That plaintiffs are the owners of Lot No. 2-R of subdivision plan (LRC) Psd-147392 at
Vergonville Subdivision, No. 10, Las Piñas, Metro Manila covered by TCT No. 62181 of the
Registry of Deeds of Pasay City on which defendants have constructed their house;
2. Defendants, jointly and severally, are ordered to demolish their house and vacate the
premises and return the possession of the portion of Lot No. 2-R as above-described to
plaintiffs within thirty (30) days from receipt of this decision, or in the alternative, plaintiffs
should be compensated by defendants, jointly and severally, by the payment of the prevailing
price of the lot involved as Lot No. 2-R with an area of 325 square meters which should not
be less than P1,500.00 per square meter, in consideration of the fact that prices of real estate
properties in the area concerned have increased rapidly;
3. Defendants, jointly and severally, pay to plaintiffs for moral damages with plaintiffs’ plans
and dreams of building their own house on their own lot being severely shattered and
 frustrated due to defendants’ incursion as interlopers of Lot No. 2-R in the sum
of P50,000.00;
4. Defendants, jointly and severally, to pay plaintiffs in the amount of P30,000.00 as
attorney’s fees; and,
5. to pay the costs of the proceedings.
Defendants’ counterclaim against plaintiffs is dismissed for lack of merit and with no cause of action.
Defendants’ third-party complaint against third-party defendant Vergonville Realty and Investments
Corporation is likewise ordered dismissed for lack of cause of action and evidently without merit.
On the other hand, defendants, jointly and severally, are liable for the litigation expenses incurred by
Vergonville Realty by way of counterclaim, which is also proven by the latter with a mere
preponderance of evidence, and are hereby ordered to pay the sum of P20,000.00 as compensatory
damage; and attorney’s fees in the sum ofP10,000.00
SO ORDERED.5
On appeal, the CA affirmed the RTC’s finding that the lot upon which petitioners built their house was
not the one (1) which Vergon sold to them. Based on the documentary evidence, such as the titles of
the two (2) lots, the contracts to sell, and the survey report made by the geodetic engineer, petitioners’
house was built on the lot of the respondent-spouses.6 There was no basis to presume that the error was
Vergon’s fault. Also the warranty against eviction under Article 1548 of the Civil Code was not
applicable as there was no deprivation of property: the lot on which petitioners built their house was
not the lot sold to them by Vergon, which remained vacant and ready for occupation.7 The CA further
ruled that petitioners cannot use the defense of allegedly being a purchaser in good faith for wrongful
occupation of land.8
Aggrieved, petitioners filed a motion for reconsideration, but it was denied by the appellate
court.9 Hence, this petition for review on certiorari.
Petitioners raise the following assignment of errors:
I.
THE COURT OF APPEALS DECIDED A QUESTION OF SUBSTANCE CONTRARY TO LAW
AND APPLICABLE DECISIONS OF THE SUPREME COURT IN AFFIRMING THE DECISION
OF THE TRIAL COURT ORDERING PETITIONERS TO DEMOLISH THEIR ONLY HOUSE
AND VACATE THE LOT AND TO PAY MORAL AND COMPENSATORY DAMAGES AS
WELL AS ATTORNEY’S FEE IN THE TOTAL AMOUNT OF PS[P] 110,000; AND
II.
THE COURT OF APPEALS SANCTIONED THE DEPARTURE OF THE LOWER COURT FROM
THE ACCEPTED AND USUAL COURSE OF JUDICIAL PROCEEDINGS AS TO CALL FOR AN
EXERCISE OF THE POWER OF SUPERVISION.10
In the main, it is petitioners’ position that they must not bear the damage alone. Petitioners insist that
they relied with full faith and confidence in the reputation of Vergon’s agents when they pointed the
wrong property to them. Even the President of Vergon, Felix Gonzales, consented to the construction
of the house when he signed the building permit.11 Also, petitioners are builders in good faith.12
The petition is partly meritorious.
At the outset, we note that petitioners raise factual issues, which are beyond the scope of a petition for
review on certiorari under Rule 45 of the Rules. Well settled is the rule that the jurisdiction of this
Court in cases brought to it from the CA via a petition for review on certiorari under Rule 45 is limited
to the review of errors of law. The Court is not bound to weigh all over again the evidence adduced by
the parties, particularly where the findings of both the trial court and the appellate court coincide. The
resolution of factual issues is a function of the trial court whose findings on these matters are, as a
general rule, binding on this Court, more so where these have been affirmed by the CA.13 We note that
the CA and RTC did not overlook or fail to appreciate any material circumstance which, when
properly considered, would have altered the result of the case. Indeed, it is beyond cavil that petitioners
mistakenly constructed their house on Lot No. 2-R which they thought was Lot No. 2-S.
However, the conclusiveness of the factual findings notwithstanding, we find that the trial court
nonetheless erred in outrightly ordering petitioners to vacate the subject property or to pay respondent
spouses the prevailing price of the land as compensation. Article 52714 of the Civil Code presumes
good faith, and since no proof exists to show that the mistake was done by petitioners in bad faith, the
latter should be presumed to have built the house in good faith.
When a person builds in good faith on the land of another, Article 448 of the Civil Code governs. Said
article provides,
ART. 448. The owner of the land on which anything has been built, sown or planted in good faith,
shall have the right to appropriate as his own the works, sowing or planting, after payment of the
indemnity provided for in Articles 546 and 548, or to oblige the one who built or planted to pay the
price of the land, and the one who sowed, the proper rent. However, the builder or planter cannot be
obliged to buy the land if its value is considerably more than that of the building or trees. In such case,
he shall pay reasonable rent, if the owner of the land does not choose to appropriate the building or
trees after proper indemnity. The parties shall agree upon the terms of the lease and in case of
disagreement, the court shall fix the terms thereof. (Emphasis ours.)
The above-cited article covers cases in which the builders, sowers or planters believe themselves to be
owners of the land or, at least, to have a claim of title thereto.15 The builder in good faith can compel
the landowner to make a choice between appropriating the building by paying the proper indemnity or
obliging the builder to pay the price of the land. The choice belongs to the owner of the land, a rule
that accords with the principle of accession, i.e., that the accessory follows the principal and not the
other way around. However, even as the option lies with the landowner, the grant to him, nevertheless,
is preclusive. He must choose one.16 He cannot, for instance, compel the owner of the building to
remove the building from the land without first exercising either option. It is only if the owner chooses
to sell his land, and the builder or planter fails to purchase it where its value is not more than the value
of the improvements, that the owner may remove the improvements from the land. The owner is
entitled to such remotion only when, after having chosen to sell his land, the other party fails to pay for
the same.17
Moreover, petitioners have the right to be indemnified for the necessary and useful expenses they may
have made on the subject property. Articles 546 and 548 of the Civil Code provide,
ART. 546. Necessary expenses shall be refunded to every possessor; but only the possessor in good
faith may retain the thing until he has been reimbursed therefor.
Useful expenses shall be refunded only to the possessor in good faith with the same right of retention,
the person who has defeated him in the possession having the option of refunding the amount of the
expenses or of paying the increase in value which the thing may have acquired by reason thereof.
ART. 548. Expenses for pure luxury or mere pleasure shall not be refunded to the possessor in good
faith; but he may remove the ornaments with which he has embellished the principal thing if it suffers
no injury thereby, and if his successor in the possession does not prefer to refund the amount
expended.
Consequently, the respondent-spouses have the option to appropriate the house on the subject land
after payment to petitioners of the appropriate indemnity or to oblige petitioners to pay the price of the
land, unless its value is considerably more than the value of the structures, in which case petitioners
shall pay reasonable rent.
In accordance with Depra v. Dumlao,18 this case must be remanded to the RTC which shall conduct the
appropriate proceedings to assess the respective values of the improvement and of the land, as well as
the amounts of reasonable rentals and indemnity, fix the terms of the lease if the parties so agree, and
to determine other matters necessary for the proper application of Article 448, in relation to Articles
546 and 548, of the Civil Code.
As to the liability of Vergon, petitioners failed to present sufficient evidence to show negligence on
Vergon’s part. Petitioners’ claim is obviously one (1) for tort, governed by Article 2176 of the Civil
Code, which 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 preexisting contractual
relation between the parties, is called a quasi-delict and is governed by the provisions of this Chapter.
(Emphasis ours.)
Under this provision, it is the plaintiff who has to prove by a preponderance of evidence: (1) the
damages suffered by the plaintiff; (2) the fault or negligence of the defendant or some other person for
whose act he must respond; and (3) the connection of cause and effect between the fault or negligence
and the damages incurred.19 This the petitioners failed to do. The President of Vergon signed the
building permit as a precondition for its approval by the local government, but it did not guarantee that
petitioners were constructing the structure within the metes and bounds of petitioners’ lot. The
signature of the President of Vergon on the building permit merely proved that petitioners were
authorized to make constructions within the subdivision project of Vergon. And while petitioners acted
in good faith in building their house on Lot No. 2-R, petitioners did not show by what authority the
agents or employees of Vergon were acting when they pointed to the lot where the construction was
made nor was petitioners’ claim on this matter corroborated by sufficient evidence.
One (1) last note on the award of damages. Considering that petitioners acted in good faith in building
their house on the subject property of the respondent-spouses, there is no basis for the award of moral
damages to respondent-spouses. Likewise, the Court deletes the award to Vergon of compensatory
damages and attorney’s fees for the litigation expenses Vergon had incurred as such amounts were not
specifically prayed for in its Answer to petitioners’ third-party complaint. Under Article 220820 of
the Civil Code, attorney’s fees and expenses of litigation are recoverable only in the concept of actual
damages, not as moral damages nor judicial costs. Hence, such must be specifically prayed for—as
was not done in this case—and may not be deemed incorporated within a general prayer for "such
other relief and remedy as this court may deem just and equitable."21 It must also be noted that aside
from the following, the body of the trial court’s decision was devoid of any statement regarding
attorney’s fees. In Scott Consultants & Resource Development Corporation, Inc. v. Court of
Appeals,22 we reiterated that attorney’s fees are not to be awarded every time a party wins a suit. The
power of the court to award attorney’s fees under Article 2208 of the Civil Code demands factual,
legal, and equitable justification; its basis cannot be left to speculation or conjecture. Where granted,
the court must explicitly state in the body of the decision, and not only in the dispositive portion
thereof, the legal reason for the award of attorney’s fees.1avvphi1
WHEREFORE, the Decision dated December 11, 2000 of the Court of Appeals in CA-G.R. CV No.
48109 is AFFIRMED WITH MODIFICATION. The award of moral damages in favor of respondent-
spouses Jose and Fe Macabagdal and the award of compensatory damages and attorney’s fees to
respondent Vergon Realty Investments Corporation are DELETED. The case is REMANDED to the
Regional Trial Court of Makati City, Branch 135, for further proceedings consistent with the proper
application of Articles 448, 546 and 548 of the Civil Code, as follows:
1. The trial court shall determine:
a. the present fair price of the respondent-spouses’ lot;
b. the amount of the expenses spent by petitioners for the building of their house;
c. the increase in value ("plus value") which the said lot may have acquired by reason
thereof; and
d. whether the value of said land is considerably more than that of the house built
thereon.
2. After said amounts shall have been determined by competent evidence, the Regional Trial
Court shall render judgment, as follows:
a. The trial court shall grant the respondent-spouses a period of fifteen (15) days
within which to exercise their option under Article 448 of the Civil Code, whether to
appropriate the house as their own by paying to petitioners either the amount of the
expenses spent by petitioners for the building of the house, or the increase in value
("plus value") which the said lot may have acquired by reason thereof, or to oblige
petitioners to pay the price of said land. The amounts to be respectively paid by the
respondent-spouses and petitioners, in accordance with the option thus exercised by
written notice of the other party and to the Court, shall be paid by the obligor within
fifteen (15) days from such notice of the option by tendering the amount to the Court
in favor of the party entitled to receive it;
b. The trial court shall further order that if the respondent-spouses exercises the
option to oblige petitioners to pay the price of the land but the latter rejects such
purchase because, as found by the trial court, the value of the land is considerably
more than that of the house, petitioners shall give written notice of such rejection to
the respondent-spouses and to the Court within fifteen (15) days from notice of the
respondent-spouses’ option to sell the land. In that event, the parties shall be given a
period of fifteen (15) days from such notice of rejection within which to agree upon
the terms of the lease, and give the Court formal written notice of such agreement
and its provisos. If no agreement is reached by the parties, the trial court, within
fifteen (15) days from and after the termination of the said period fixed for
negotiation, shall then fix the terms of the lease, payable within the first five (5) days
of each calendar month. The period for the forced lease shall not be more than two
(2) years, counted from the finality of the judgment, considering the long period of
time since petitioners have occupied the subject area. The rental thus fixed shall be
increased by ten percent (10%) for the second year of the forced lease. Petitioners
shall not make any further constructions or improvements on the house. Upon
expiration of the two (2)-year period, or upon default by petitioners in the payment
 of rentals for two (2) consecutive months, the respondent-spouses shall be entitled to
terminate the forced lease, to recover their land, and to have the house removed by
petitioners or at the latter’s expense. The rentals herein provided shall be tendered by
petitioners to the Court for payment to the respondent-spouses, and such tender shall
constitute evidence of whether or not compliance was made within the period fixed
by the Court.
c. In any event, petitioners shall pay the respondent-spouses reasonable
compensation for the occupancy of the respondent-spouses’ land for the period
counted from the year petitioners occupied the subject area, up to the commencement
date of the forced lease referred to in the preceding paragraph;
d. The periods to be fixed by the trial court in its Decision shall be inextendible, and
upon failure of the party obliged to tender to the trial court the amount due to the
obligee, the party entitled to such payment shall be entitled to an order of execution
for the enforcement of payment of the amount due and for compliance with such
other acts as may be required by the prestation due the obligee.
No costs.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
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".16 They consist of the court's "conclusions" with respect to the
determinative facts in issue". 17 A question of law, upon the other hand, has been declared as "one
which does not call for an examination of the probative value of the evidence presented by the
parties." 18
2. By statute, "only questions of law may be raised" in an appeal by certiorari from a judgment
of the Court of Appeals. 19 That judgment is conclusive as to the facts. It is not appropriately the
business of this Court to alter the facts or to review the questions of fact. 20
With these guideposts, we now face the problem of whether the findings of fact of the Court of
Appeals support its judgment.
3. Was Carrascoso entitled to the first class seat he claims?
It is conceded in all quarters that on March 28, 1958 he paid to and received from petitioner a
first class ticket. But petitioner asserts that said ticket did not represent the true and complete intent and
agreement of the parties; that said respondent knew that he did not have confirmed reservations for
first class on any specific flight, although he had tourist class protection; that, accordingly, the issuance
of a first class ticket was no guarantee that he would have a first class ride, but that such would depend
upon the availability of first class seats.
These are matters which petitioner has thoroughly presented and discussed in its brief before the
Court of Appeals under its third assignment of error, which reads: "The trial court erred in finding that
plaintiff had confirmed reservations for, and a right to, first class seats on the "definite" segments of his
journey, particularly that from Saigon to Beirut". 21
And, the Court of Appeals disposed of this contention thus:
Defendant seems to capitalize on the argument that the issuance of a first-class ticket
was no guarantee that the passenger to whom the same had been issued, would be
accommodated in the first-class compartment, for as in the case of plaintiff he had yet to make
arrangements upon arrival at every station for the necessary first-class reservation. We are not
impressed by such a reasoning. We cannot understand how a reputable firm like defendant
airplane company could have the indiscretion to give out tickets it never meant to honor at all.
It received the corresponding amount in payment of first-class tickets and yet it allowed the
passenger to be at the mercy of its employees. It is more in keeping with the ordinary course
of business that the company should know whether or riot the tickets it issues are to be
honored or not.22
Not that the Court of Appeals is alone. The trial court similarly disposed of petitioner's
contention, thus:
On the fact that plaintiff paid for, and was issued a "First class" ticket, there can be no question.
Apart from his testimony, see plaintiff's Exhibits "A", "A-1", "B", "B-1," "B-2", "C" and "C-1", and
defendant's own witness, Rafael Altonaga, confirmed plaintiff's testimony and testified as follows:
Q. In these tickets there are marks "O.K." From what you know, what does this OK mean?
A. That the space is confirmed.
Q. Confirmed for first class?
A. Yes, "first class". (Transcript, p. 169)
xxx xxx xxx
Defendant tried to prove by the testimony of its witnesses Luis Zaldariaga and Rafael Altonaga
that although plaintiff paid for, and was issued a "first class" airplane ticket, the ticket was subject to
confirmation in Hongkong. The court cannot give credit to the testimony of said witnesses. Oral
evidence cannot prevail over written evidence, and plaintiff's Exhibits "A", "A-l", "B", "B-l", "C" and
"C-1" belie the testimony of said witnesses, and clearly show that the plaintiff was issued, and paid for,
a first class ticket without any reservation whatever.
Furthermore, as hereinabove shown, defendant's own witness Rafael Altonaga testified that the
reservation for a "first class" accommodation for the plaintiff was confirmed. The court cannot believe
that after such confirmation defendant had a verbal understanding with plaintiff that the "first class"
ticket issued to him by defendant would be subject to confirmation in Hongkong. 23
We have heretofore adverted to the fact that except for a slight difference of a few pesos in the
amount refunded on Carrascoso's ticket, the decision of the Court of First Instance was affirmed by the
Court of Appeals in all other respects. We hold the view that such a judgment of affirmance has
merged the judgment of the lower court. 24 Implicit in that affirmance is a determination by the Court
of Appeals that the proceeding in the Court of First Instance was free from prejudicial error and "all
questions raised by the assignments of error and all questions that might have been raised are to be
regarded as finally adjudicated against the appellant". So also, the judgment affirmed "must be
regarded as free from all error". 25 We reached this policy construction because nothing in the decision
of the Court of Appeals on this point would suggest that its findings of fact are in any way at war with
those of the trial court. Nor was said affirmance by the Court of Appeals upon a ground or grounds
different from those which were made the basis of the conclusions of the trial court. 26
If, as petitioner underscores, a first-class-ticket holder is not entitled to a first class seat,
notwithstanding the fact that seat availability in specific flights is therein confirmed, then an air
passenger is placed in the hollow of the hands of an airline. What security then can a passenger have?
It will always be an easy matter for an airline aided by its employees, to strike out the very stipulations
in the ticket, and say that there was a verbal agreement to the contrary. What if the passenger had a
schedule to fulfill? We have long learned that, as a rule, a written document speaks a uniform
language; that spoken word could be notoriously unreliable. If only to achieve stability in the relations
between passenger and air carrier, adherence to the ticket so issued is desirable. Such is the case here.
The lower courts refused to believe the oral evidence intended to defeat the covenants in the ticket.
The foregoing are the considerations which point to the conclusion that there are facts upon
which the Court of Appeals predicated the finding that respondent Carrascoso had a first class ticket
and was entitled to a first class seat at Bangkok, which is a stopover in the Saigon to Beirut leg of the
flight. 27 We perceive no "welter of distortions by the Court of Appeals of petitioner's statement of its
position", as charged by petitioner. 28 Nor do we subscribe to petitioner's accusation that respondent
Carrascoso "surreptitiously took a first class seat to provoke an issue". 29 And this because, as
petitioner states, Carrascoso went to see the Manager at his office in Bangkok "to confirm my seat and
because from Saigon I was told again to see the Manager". 30 Why, then, was he allowed to take a first
class seat in the plane at Bangkok, if he had no seat? Or, if another had a better right to the seat?
4. Petitioner assails respondent court's award of moral damages. Petitioner's trenchant claim is
that Carrascoso's action is planted upon breach of contract; that to authorize an award for moral
damages there must be an averment of fraud or bad faith;31 and that the decision of the Court of
Appeals fails to make a finding of bad faith. The pivotal allegations in the complaint bearing on this
issue are:
3. That ... plaintiff entered into a contract of air carriage with the Philippine Air Lines for a
valuable consideration, the latter acting as general agents for and in behalf of the defendant,
under which said contract, plaintiff was entitled to, as defendant agreed to furnish plaintiff,
 First Class passage on defendant's plane during the entire duration of plaintiff's tour of Europe
with Hongkong as starting point up to and until plaintiff's return trip to Manila, ... .
4. That, during the first two legs of the trip from Hongkong to Saigon and from Saigon to
Bangkok, defendant furnished to the plaintiff First Class accommodation but only after
protestations, arguments and/or insistence were made by the plaintiff with defendant's
employees.
5. That finally, defendant failed to provide First Class passage, but instead furnished plaintiff
only TouristClass 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 wasousted by petitioner's manager who gave his seat to a white man; 35 and (b) evidence of
bad faith in the fulfillment of the contract was presented without objection on the part of the petitioner.
It is, therefore, unnecessary to inquire as to whether or not there is sufficient averment in the complaint
to justify an award for moral damages. Deficiency in the complaint, if any, was cured by the evidence.
An amendment thereof to conform to the evidence is not even required. 36 On the question of bad faith,
the Court of Appeals declared:
That the plaintiff was forced out of his seat in the first class compartment of the plane
belonging to the defendant Air France while at Bangkok, and was transferred to the tourist
class not only without his consent but against his will, has been sufficiently established by
plaintiff in his testimony before the court, corroborated by the corresponding entry made by
the purser of the plane in his notebook which notation reads as follows:
"First-class passenger was forced to go to the tourist class against his will, and
that the captain refused to intervene",
and by the testimony of an eye-witness, Ernesto G. Cuento, who was a co-passenger.
The captain of the plane who was asked by the manager of defendant company at Bangkok to
intervene even refused to do so. It is noteworthy that no one on behalf of defendant ever
contradicted or denied this evidence for the plaintiff. It could have been easy for defendant to
present its manager at Bangkok to testify at the trial of the case, or yet to secure his
disposition; but defendant did neither. 37
The Court of appeals further stated —
Neither is there evidence as to whether or not a prior reservation was made by the white
man. Hence, if the employees of the defendant at Bangkok sold a first-class ticket to him
when all the seats had already been taken, surely the plaintiff should not have been picked out
as the one to suffer the consequences and to be subjected to the humiliation and indignity of
being ejected from his seat in the presence of others. Instead of explaining to the white man
the improvidence committed by defendant's employees, the manager adopted the more drastic
step of ousting the plaintiff who was then safely ensconsced in his rightful seat. We are
strengthened in our belief that this probably was what happened there, by the testimony of
defendant's witness Rafael Altonaga who, when asked to explain the meaning of the letters
"O.K." appearing on the tickets of plaintiff, said "that the space is confirmed for first class.
Likewise, Zenaida Faustino, another witness for defendant, who was the chief of the
Reservation Office of defendant, testified as follows:
"Q How does the person in the ticket-issuing office know what reservation the
passenger has arranged with you?
A They call us up by phone and ask for the confirmation." (t.s.n., p. 247, June 19,
1959)
In this connection, we quote with approval what the trial Judge has said on this point:
Why did the, using the words of witness Ernesto G. Cuento, "white man" have
a "better right" to the seat occupied by Mr. Carrascoso? The record is silent. The
defendant airline did not prove "any better", nay, any right on the part of the "white
man" to the "First class" seat that the plaintiff was occupying and for which he paid
and was issued a corresponding "first class" ticket.
If there was a justified reason for the action of the defendant's Manager in
Bangkok, the defendant could have easily proven it by having taken the testimony of
the said Manager by deposition, but defendant did not do so; the presumption is that
evidence willfully suppressed would be adverse if produced [Sec. 69, par (e), Rules
of Court]; and, under the circumstances, the Court is constrained to find, as it does
find, that the Manager of the defendant airline in Bangkok not merely asked but
threatened the plaintiff to throw him out of the plane if he did not give up his "first
class" seat because the said Manager wanted to accommodate, using the words of the
witness Ernesto G. Cuento, the "white man".38
It is really correct to say that the Court of Appeals in the quoted portion first transcribed
did not use the term "bad faith". But can it be doubted that the recital of facts therein points to
bad faith? The manager not only prevented Carrascoso from enjoying his right to a first class
seat; worse, he imposed his arbitrary will; he forcibly ejected him from his seat, made him
 suffer the humiliation of having to go to the tourist class compartment - just to give way to
another passenger whose right thereto has not been established. Certainly, this is bad faith.
Unless, of course, bad faith has assumed a meaning different from what is understood in law.
For, "bad faith" contemplates a "state of mind affirmatively operating with furtive design or
with some motive of self-interest or will or for ulterior purpose." 39
And if the foregoing were not yet sufficient, there is the express finding of bad faith in
the judgment of the Court of First Instance, thus:
The evidence shows that the defendant violated its contract of transportation
with plaintiff in bad faith, with the aggravating circumstances that defendant's
Manager in Bangkok went to the extent of threatening the plaintiff in the presence of
many passengers to have him thrown out of the airplane to give the "first class" seat
that he was occupying to, again using the words of the witness Ernesto G. Cuento, a
"white man" whom he (defendant's Manager) wished to accommodate, and the
defendant has not proven that this "white man" had any "better right" to occupy the
"first class" seat that the plaintiff was occupying, duly paid for, and for which the
corresponding "first class" ticket was issued by the defendant to him.40
5. The responsibility of an employer for the tortious act of its employees need not be essayed. It
is well settled in law. 41 For the willful malevolent act of petitioner's manager, petitioner, his employer,
must answer. Article 21 of the Civil Code says:
ART. 21. Any person who willfully causes loss or injury to another in a manner that is
contrary to morals, good customs or public policy shall compensate the latter for the damage.
In parallel circumstances, we applied the foregoing legal precept; and, we held that upon the
provisions of Article 2219 (10), Civil Code, moral damages are recoverable. 42
6. A contract to transport passengers is quite different in kind and degree from any other
contractual relation. 43 And this, because of the relation which an air-carrier sustains with the public. Its
business is mainly with the travelling public. It invites people to avail of the comforts and advantages it
offers. The contract of air carriage, therefore, generates a relation attended with a public duty. Neglect
or malfeasance of the carrier's employees, naturally, could give ground for an action for damages.
Passengers do not contract merely for transportation. They have a right to be treated by the
carrier's employees with kindness, respect, courtesy and due consideration. They are entitled to be
protected against personal misconduct, injurious language, indignities and abuses from such
employees. So it is, that any rule or discourteous conduct on the part of employees towards a passenger
gives the latter an action for damages against the carrier. 44
Thus, "Where a steamship company 45 had accepted a passenger's check, it was a breach of
contract and a tort, giving a right of action for its agent in the presence of third persons to falsely notify
her that the check was worthless and demand payment under threat of ejection, though the language
used was not insulting and she was not ejected." 46 And this, because, although the relation of
passenger and carrier is "contractual both in origin and nature" nevertheless "the act that breaks the
contract may be also a tort". 47 And in another case, "Where a passenger on a railroad train, when the
conductor came to collect his fare tendered him the cash fare to a point where the train was scheduled
not to stop, and told him that as soon as the train reached such point he would pay the cash fare from
that point to destination, there was nothing in the conduct of the passenger which justified the
conductor in using insulting language to him, as by calling him a lunatic," 48 and the Supreme Court of
South Carolina there held the carrier liable for the mental suffering of said passenger.1awphîl.nèt
Petitioner's contract with Carrascoso is one attended with public duty. The stress of Carrascoso's
action as we have said, is placed upon his wrongful expulsion. This is a violation of public duty by the
petitioner air carrier — a case of quasi-delict. Damages are proper.
7. Petitioner draws our attention to respondent Carrascoso's testimony, thus —
Q You mentioned about an attendant. Who is that attendant and purser?
A When we left already — that was already in the trip — I could not help it. So one of the
flight attendants approached me and requested from me my ticket and I said, What for? and
she said, "We will note that you transferred to the tourist class". I said, "Nothing of that kind.
That is tantamount to accepting my transfer." And I also said, "You are not going to note
anything there because I am protesting to this transfer".
Q Was she able to note it?
A No, because I did not give my ticket.
Q About that purser?
A Well, the seats there are so close that you feel uncomfortable and you don't have enough leg
room, I stood up and I went to the pantry that was next to me and the purser was there. He
told me, "I have recorded the incident in my notebook." He read it and translated it to me —
because it was recorded in French — "First class passenger was forced to go to the tourist
class against his will, and that the captain refused to intervene."
Mr. VALTE —
I move to strike out the last part of the testimony of the witness because the best evidence
would be the notes. Your Honor.
COURT —
I will allow that as part of his testimony. 49
Petitioner charges that the finding of the Court of Appeals that the purser made an entry in his
notebook reading "First class passenger was forced to go to the tourist class against his will, and that
the captain refused to intervene" is predicated upon evidence [Carrascoso's testimony above] which is
incompetent. We do not think so. The subject of inquiry is not the entry, but the ouster incident.
Testimony on the entry does not come within the proscription of the best evidence rule. Such
testimony is admissible. 49a
Besides, from a reading of the transcript just quoted, when the dialogue happened, the impact of
the startling occurrence was still fresh and continued to be felt. The excitement had not as yet died
down. Statements then, in this environment, are admissible as part of the res gestae. 50 For, they grow
"out of the nervous excitement and mental and physical condition of the declarant". 51 The utterance of
the purser regarding his entry in the notebook was spontaneous, and related to the circumstances of the
ouster incident. Its trustworthiness has been guaranteed. 52 It thus escapes the operation of the hearsay
rule. It forms part of the res gestae.
At all events, the entry was made outside the Philippines. And, by an employee of petitioner. It
would have been an easy matter for petitioner to have contradicted Carrascoso's testimony. If it were
really true that no such entry was made, the deposition of the purser could have cleared up the matter.
We, therefore, hold that the transcribed testimony of Carrascoso is admissible in evidence.
 8. Exemplary damages are well awarded. The Civil Code gives the court ample power to grant
exemplary damages — in contracts and quasi- contracts. The only condition is that defendant should
have "acted in a wanton, fraudulent, reckless, oppressive, or malevolent manner." 53 The manner of
ejectment of respondent Carrascoso from his first class seat fits into this legal precept. And this, in
addition to moral damages.54
9. The right to attorney's fees is fully established. The grant of exemplary damages justifies a
similar judgment for attorneys' fees. The least that can be said is that the courts below felt that it is but
just and equitable that attorneys' fees be given. 55 We do not intend to break faith with the tradition that
discretion well exercised — as it was here — should not be disturbed.
10. Questioned as excessive are the amounts decreed by both the trial court and the Court of
Appeals, thus: P25,000.00 as moral damages; P10,000.00, by way of exemplary damages, and
P3,000.00 as attorneys' fees. The task of fixing these amounts is primarily with the trial court. 56 The
Court of Appeals did not interfere with the same. The dictates of good sense suggest that we give our
imprimatur thereto. Because, the facts and circumstances point to the reasonableness thereof.57
On balance, we say that the judgment of the Court of Appeals does not suffer from reversible
error. We accordingly vote to affirm the same. Costs against petitioner. So ordered.
Concepcion, C.J., Reyes, J.B.L., Barrera, Dizon, Regala, Makalintal, Zaldivar and Castro, JJ., concur.
Bengzon, J.P., J., took no part.
Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 110295 October 18, 1993
COCA-COLA BOTTLERS PHILIPPINES, INC.,
vs.
THE HONORABLE COURT OF APPEALS (Fifth Division) and MS. LYDIA GERONIMO,
respondents.
Angara, Abello, Concepcion, Regala & Cruz Law Offices for petitioner.
Alejandro M. Villamil for private respondent.
DAVIDE, JR., J.:
This case concerns the proprietress of a school canteen which had to close down as a consequence of
the big drop in its sales of soft drinks triggered by the discovery of foreign substances in certain
beverages sold by it. The interesting issue posed is whether the subsequent action for damages by the
proprietress against the soft drinks manufacturer should be treated as one for breach of implied
warranty against hidden defects or merchantability, as claimed by the manufacturer, the petitioner
herein which must therefore be filed within six months from the delivery of the thing sold pursuant to
Article 1571 of the Civil Code, or one for quasi-delict, as held by the public respondent, which can be
filed within four years pursuant to Article 1146 of the same Code.
On 7 May 1990, Lydia L. Geronimo, the herein private respondent, filed a complaint for damages
against petitioner with the Regional Trial Court (RTC) of Dagupan City. 1 The case was docketed as
Civil Case No. D-9629. She alleges in her complaint that she was the proprietress of Kindergarten
Wonderland Canteen docketed as located in Dagupan City, an enterprise engaged in the sale of soft
drinks (including Coke and Sprite) and other goods to the students of Kindergarten Wonderland and to
the public; on or about 12 August 1989, some parents of the students complained to her that the Coke
and Sprite soft drinks sold by her contained fiber-like matter and other foreign substances or particles;
he then went over her stock of softdrinks and discovered the presence of some fiber-like substances in
the contents of some unopened Coke bottles and a plastic matter in the contents of an unopened Sprite
bottle; she brought the said bottles to the Regional Health Office of the Department of Health at San
Fernando, La Union, for examination; subsequently, she received a letter from the Department of
Health informing her that the samples she submitted "are adulterated;" as a consequence of the
discovery of the foreign substances in the beverages, her sales of soft drinks severely plummeted from
the usual 10 cases per day to as low as 2 to 3 cases per day resulting in losses of from P200.00 to
P300.00 per day, and not long after that she had to lose shop on 12 December 1989; she became
jobless and destitute; she demanded from the petitioner the payment of damages but was rebuffed by it.
She prayed for judgment ordering the petitioner to pay her P5,000.00 as actual damages, P72,000.00 as
compensatory damages, P500,000.00 as moral damages, P10,000.00 as exemplary damages, the
amount equal to 30% of the damages awarded as attorney's fees, and the costs. 2
The petitioner moved to dismiss 3 the complaint on the grounds of failure to exhaust administrative
remedies and prescription. Anent the latter ground, the petitioner argued that since the complaint is for
breach of warranty under Article 1561 of the said Code. In her Comment 4 thereto, private respondent
alleged that the complaint is one for damages which does not involve an administrative action and that
her cause of action is based on an injury to plaintiff's right which can be brought within four years
pursuant to Article 1146 of the Civil Code; hence, the complaint was seasonably filed. Subsequent
related pleadings were thereafter filed by the parties. 5
In its Order of 23 January 1991, 6 the trial court granted the motion to dismiss. It ruled that the doctrine
of exhaustion of administrative remedies does not apply as the existing administrative remedy is not
adequate. It also stated that the complaint is based on a contract, and not on quasi-delict, as there exists
pre-existing contractual relation between the parties; thus, on the basis of Article 1571, in relation to
Article 1562, the complaint should have been filed within six months from the delivery of the thing
sold.
Her motion for the reconsideration of the order having been denied by the trial court in its Order of 17
April 1991, 7the private respondent came to this Court via a petition for review on certiorari which we
referred to the public respondent "for proper determination and disposition. 8 The public respondent
docketed the case as CA-G.R. SP No. 25391.
In a decision promulgated on 28 January 1992, 9 the public respondent annulled the questioned orders
of the RTC and directed it to conduct further proceedings in Civil Case No. D-9629. In holding for the
private respondent, it ruled that:
Petitioner's complaint being one for quasi-delict, and not for breach of warranty as
respondent contends, the applicable prescriptive period is four years.
It should be stressed that the allegations in the complaint plainly show that it is an
action or damages arising from respondent's act of "recklessly and negligently
manufacturing adulterated food items intended to be sold or public consumption" (p.
25, rollo). It is truism in legal procedure that what determines the nature of an action
 are the facts alleged in the complaint and those averred as a defense in the
defendant's answer (I Moran 126; Calo v. Roldan, 76 Phil. 445; Alger Electric, Inc.
v. CA, 135 SCRA 340).
Secondly, despite the literal wording of Article 2176 of the Civil code, the existence
of contractual relations between the parties does not absolutely preclude an action by
one against the other forquasi-delict arising from negligence in the performance of a
contract.
In Singson v. Court of Appeals (23 SCRA 1117), the Supreme Court ruled:
It has been repeatedly held: that the existence of a contract
between the parties does not bar the commission of a tort by the
one against the other and the consequent recovery of damages
therefor
. . . . Thus in Air France vs. Carrascoso, . . . (it was held that)
although the relation between a passenger and a carrier is
"contractual both in origin and in nature the act that breaks the
contract may also be a tort.
Significantly, in American jurisprudence, from which Our law on Sales was taken,
the authorities are one in saying that he availability of an action or breach of
warranty does not bar an action for torts in a sale of defective goods. 10
Its motion for the reconsideration of the decision having been denied by the public respondent in its
Resolution of 14 May 1993, 11 the petitioner took his recourse under Rule 45 of the Revised Rules of
Court. It alleges in its petition that:
I.
THE HONORABLE COURT OF APPEALS COMMITTED A GRAVE AND
REVERSIBLE ERROR IN RULING THAT ARTICLE 2176, THE GENERAL
PROVISION ON QUASI-DELICTS, IS APPLICABLE IN THIS CASE WHEN THE
ALLEGATIONS OF THE COMPLAINT CLEARLY SHOW THAT PRIVATE
RESPONDENT'S CAUSE OF ACTION IS BASEDON BREACH OF A SELLER'S
IMPLIED WARRANTIES UNDER OUR LAW ON SALES.
II.
CORROLARILY, THE HONORABLE COURT OF APPEALS COMMITTED A
GRAVE AND REVERSIBLE ERROR IN OVERRULING PETITIONER'S
ARGUMENT THAT PRIVATE RESPONDENT'S CAUSE OF ACTION HAD
PRESCRIBED UNDER ARTICLE 1571 OF THE CIVIL CODE. 12
The petitioner insists that a cursory reading of the complaint will reveal that the primary legal basis for
private respondent's cause of action is not Article 2176 of the Civil Code on quasi-delict — for the
complaint does not ascribe any tortious or wrongful conduct on its part — but Articles 1561 and 1562
thereof on breach of a seller's implied warranties under the law on sales. It contends the existence of a
contractual relation between the parties (arising from the contract of sale) bars the application of the
law on quasi-delicts and that since private respondent's cause of action arose from the breach of
implied warranties, the complaint should have been filed within six months room delivery of the soft
drinks pursuant to Article 171 of the Civil Code.
In her Comment the private respondent argues that in case of breach of the seller's implied warranties,
the vendee may, under Article 1567 of the Civil Code, elect between withdrawing from the contract or
demanding a proportionate reduction of the price, with damages in either case. She asserts that Civil
Case No. D-9629 is neither an action for rescission nor for proportionate reduction of the price, but for
damages arising from a quasi-delict and that the public respondent was correct in ruling that the
existence of a contract did not preclude the action for quasi-delict. As to the issue of prescription, the
private respondent insists that since her cause of action is based on quasi-delict, the prescriptive period
therefore is four (4) years in accordance with Article 1144 of the Civil Code and thus the filing of the
complaint was well within the said period.
We find no merit in the petition. The public respondent's conclusion that the cause of action in Civil
Case No. D-9629 is found on quasi-delict and that, therefore, pursuant to Article 1146 of the Civil
Code, it prescribes in four (4) years is supported by the allegations in the complaint, more particularly
paragraph 12 thereof, which makes reference to the reckless and negligent manufacture of "adulterated
food items intended to be sold for public consumption."
The vendee's remedies against a vendor with respect to the warranties against hidden defects of or
encumbrances upon the thing sold are not limited to those prescribed in Article 1567 of the Civil Code
which provides:
Art. 1567. In the case of Articles 1561, 1562, 1564, 1565 and 1566, the vendee may
elect between withdrawing from the contract and demanding a proportionate
reduction of the price, with damages either
case. 13
The vendee may also ask for the annulment of the contract upon proof of error or fraud, in which case
the ordinary rule on obligations shall be applicable. 14 Under the law on obligations, responsibility
arising from fraud is demandable in all obligations and any waiver of an action for future fraud is void.
Responsibility arising from negligence is also demandable in any obligation, but such liability may be
regulated by the courts, according to the circumstances. 15 Those guilty of fraud, negligence, or delay
in the performance of their obligations and those who in any manner contravene the tenor thereof are
liable for damages. 16
The vendor could likewise be liable for quasi-delict under Article 2176 of the Civil Code, and an
action based thereon may be brought by the vendee. While it may be true that the pre-existing contract
between the parties may, as a general rule, bar the applicability of the law on quasi-delict, the liability
may itself be deemed to arise from quasi-delict, i.e., the acts which breaks the contract may also be
a quasi-delict. Thus, in Singson vs. Bank of the Philippine Islands, 17 this Court stated:
We have repeatedly held, however, that the existence of a contract between the
parties does not bar the commission of a tort by the one against the other and the
consequent recovery of damages therefor. 18 Indeed, this view has been, in effect,
reiterated in a comparatively recent case. Thus, inAir France
vs. Carrascoso, 19 involving an airplane passenger who, despite hi first-class ticket,
had been illegally ousted from his first-class accommodation and compelled to take a
seat in the tourist compartment, was held entitled to recover damages from the air-
carrier, upon the ground of tort on the latter's part, for, although the relation between
the passenger and a carrier is "contractual both in origin and nature . . . the act that
breaks the contract may also be a tort.
Otherwise put, liability for quasi-delict may still exist despite the presence of contractual
relations. 20
 Under American law, the liabilities of a manufacturer or seller of injury-causing products may
be based on negligence, 21 breach of warranty, 22 tort, 23 or other grounds such as fraud, deceit,
or misrepresentation.24 Quasi-delict, as defined in Article 2176 of the Civil Code, (which is
known in Spanish legal treaties asculpa aquiliana, culpa extra-contractual or cuasi-
delitos) 25 is homologous but not identical to tort under the common law, 26 which includes not
only negligence, but also intentional criminal acts, such as assault and battery, false
imprisonment and deceit. 27
It must be made clear that our affirmance of the decision of the public respondent should by no means
be understood as suggesting that the private respondent's claims for moral damages have sufficient
factual and legal basis.
IN VIEW OF ALL THE FOREGOING, the instant petition is hereby DENIED for lack of merit, with
costs against the petitioner.
SO ORDERED.