TORTS – TORTS VS. QUASI-DELICT VS.

DELICT The gist of the decision of the Court of Appeals is expressed thus:

G.R. No. L-48006 July 8, 1942
FAUSTO BARREDO, petitioner,
vs.
SEVERINO GARCIA and TIMOTEA ALMARIO, 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.
... 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.

The main theory of the defense is that the liability of Fausto Barredo is governed by the Revised Penal Code;
ART. 1093. Those which are derived from acts or omissions in which fault or negligence, not punishable by
hence, his liability is only subsidiary, and as there has been no civil action against Pedro Fontanilla, the person
law, intervenes shall be subject to the provisions of Chapter II, Title XVI of this book.
criminally liable, Barredo cannot be held responsible in the case. The petitioner's brief states on page 10:

xxx xxx xxx

... 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 ART 1902. Any person who by an act or omission causes damage to another by his fault or negligence shall
the case article 1903 of the Civil Code. Article 1903 of the Civil Code is found in Chapter II, Title 16, be liable for the damage so done.
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 ART. 1903. The obligation imposed by the next preceding article is enforcible, not only for personal acts
of article 1903 of the Civil Code itself, is applicable only to "those (obligations) arising from wrongful and omissions, but also for those of persons for whom another is responsible.
or negligent acts or commission not punishable by law.
 The father and in, case of his death or incapacity, the mother, are liable for any damages caused by the
minor children who live with them.
Guardians are liable for damages done by minors or incapacitated persons subject to their authority and
living with them.
Owners or directors of an establishment or business are equally liable for any damages caused by their
employees while engaged in the branch of the service in which employed, or on occasion of the performance
of their duties.
The State is subject to the same liability when it acts through a special agent, but not if the damage shall
have been caused by the official upon whom properly devolved the duty of doing the act performed, in
which case the provisions of the next preceding article shall be applicable.
Finally, teachers or directors of arts trades are liable for any damages caused by their pupils or apprentices
while they are under their custody.
The liability imposed by this article shall cease in case the persons mentioned therein prove that they are
exercised all the diligence of a good father of a family to prevent the damage.
ART. 1904. Any person who pays for damage caused by his employees may recover from the latter what
he may have paid.
REVISED PENAL CODE
ART. 100. Civil liability of a person guilty of felony. — Every person criminally liable for a felony is also civilly
liable.
ART. 101. Rules regarding civil liability in certain cases. — The exemption from criminal liability established
in subdivisions 1, 2, 3, 5, and 6 of article 12 and in subdivision 4 of article 11 of this Code does not include
exemption from civil liability, which shall be enforced to the following rules:
First. In cases of subdivision, 1, 2 and 3 of article 12 the civil liability for acts committed by any imbecile or
insane person, and by a person under nine years of age, or by one over nine but under fifteen years of age,
who has acted without discernment shall devolve upon those having such person under their legal authority
or control, unless it appears that there was no fault or negligence on their part.
Should there be no person having such insane, imbecile or minor under his authority, legal guardianship, or
control, or if such person be insolvent, said insane, imbecile, or minor shall respond with their own property,
excepting property exempt from execution, in accordance with the civil law.
Second. In cases falling within subdivision 4 of article 11, the person for whose benefit the harm has been
prevented shall be civilly liable in proportion to the benefit which they may have received.
The courts shall determine, in their sound discretion, the proportionate amount for which each one shall be
liable.
When the respective shares can not be equitably determined, even approximately, or when the liability also
attaches to the Government, or to the majority of the inhabitants of the town, and, in all events, whenever
the damage has been caused with the consent of the authorities or their agents, indemnification shall be made
in the manner prescribed by special laws or regulations.
Third. In cases falling within subdivisions 5 and 6 of article 12, the persons using violence or causing the fear
shall be primarily liable and secondarily, or, if there be no such persons, those doing the act shall be liable,
saving always to the latter that part of their property exempt from execution.
ART. 102. Subsidiary civil liability of innkeepers, tavern keepers and proprietors of establishment . — In
default of persons criminally liable, innkeepers, tavern keepers, and any other persons or corporation shall
be civilly liable for crimes committed in their establishments, in all cases where a violation of municipal
ordinances or some general or special police regulation shall have been committed by them or their
employees.
Innkeepers are also subsidiarily liable for the restitution of goods taken by robbery or theft within their
houses lodging therein, or the person, or for the payment of the value thereof, provided that such guests
shall have notified in advance the innkeeper himself, or the person representing him, of the deposit of such
goods within the inn; and shall furthermore have followed the directions which such innkeeper or his
representative may have given them with respect to the care of and vigilance over such goods. No liability
shall attach in case of robbery with violence against or intimidation against or intimidation of persons unless
committed by the innkeeper's employees.
ART. 103. Subsidiary civil liability of other persons. — The subsidiary liability established in the next
preceding article shall also apply to employers, teachers, persons, and corporations engaged in any kind of
industry for felonies committed by their servants, pupils, workmen, apprentices, or employees in the
discharge of their duties.
xxx xxx xxx
ART. 365. Imprudence and negligence. — Any person who, by reckless imprudence, shall commit any act
which, had it been intentional, would constitute a grave felony, shall suffer the penalty of arresto mayor in
its maximum period to prision correccional in its minimum period; if it would have constituted a less grave
felony, the penalty of arresto mayor in its minimum and medium periods shall be imposed.
Any person who, by simple imprudence or negligence, shall commit an act which would otherwise constitute
a grave felony, shall suffer the penalty of arresto mayor in its medium and maximum periods; if it would
have constituted a less serious felony, the penalty of arresto mayor in its minimum period shall be imposed."
It will thus be seen that while the terms of articles 1902 of the Civil Code seem to be broad enough to cover
the driver's negligence in the instant case, nevertheless article 1093 limits cuasi-delitos to acts or omissions
"not punishable by law." But inasmuch as article 365 of the Revised Penal Code punishes not only reckless
but even simple imprudence or negligence, the fault or negligence under article 1902 of the Civil Code has
apparently been crowded out. It is this overlapping that makes the "confusion worse confounded." However,
a closer study shows that such a concurrence of scope in regard to negligent acts does not destroy the
distinction between the civil liability arising from a crime and the responsibility for cuasi-delitos or culpa extra-
contractual. The same negligent act causing damages may produce civil liability arising from a crime under
article 100 of the Revised Penal Code, or create an action for cuasi-delito or culpa extra-contractual under
articles 1902-1910 of the Civil Code.
The individuality of cuasi-delito or culpa extra-contractual looms clear and unmistakable. This legal institution
is of ancient lineage, one of its early ancestors being the Lex Aquilia in the Roman Law. In fact, in Spanish
legal terminology, this responsibility is often referred to as culpa aquiliana. The Partidas also contributed to
the genealogy of the present fault or negligence under the Civil Code; for instance, Law 6, Title 15, of Partida
7, says: "Tenudo es de fazer emienda, porque, como quier que el non fizo a sabiendas en daño al otro, pero
acaescio por su culpa."
The distinctive nature of cuasi-delitos survives in the Civil Code. According to article 1089, one of the five
sources of obligations is this legal institution of cuasi-delito or culpa extra-contractual: "los actos . . . en que
intervenga cualquier genero de culpa o negligencia." Then article 1093 provides that this kind of obligation
shall be governed by Chapter II of Title XVI of Book IV, meaning articles 1902-0910. This portion of the Civil
Code is exclusively devoted to the legal institution of culpa aquiliana.
Some of the differences between crimes under the Penal Code and the culpa aquiliana or cuasi-delito under
the Civil Code are:
1. That crimes affect the public interest, while cuasi-delitos are only of private concern.
2. That, consequently, the Penal Code punishes or corrects the criminal act, while the Civil Code, by means of
indemnification, merely repairs the damage.
3. That delicts are not as broad as quasi-delicts, because the former are punished only if there is a penal law
clearly covering them, while the latter, cuasi-delitos, include all acts in which "any king of fault or negligence
intervenes." However, it should be noted that not all violations of the penal law produce civil responsibility,
such as begging in contravention of ordinances, violation of the game laws, infraction of the rules of traffic
when nobody is hurt. (See Colin and Capitant, "Curso Elemental de Derecho Civil," Vol. 3, p. 728.)
Let us now ascertain what some jurists say on the separate existence of quasi-delicts and the employer's
primary and direct liability under article 1903 of the Civil Code.
Dorado Montero in his essay on "Responsibilidad" in the "Enciclopedia Juridica Española" (Vol. XXVII, p. 414)
says:
El concepto juridico de la responsabilidad civil abarca diversos aspectos y comprende a diferentes personas. Asi, existe
una responsabilidad civil propiamente dicha, que en ningun casl lleva aparejada responsabilidad criminal alguna, y otra
que es consecuencia indeclinable de la penal que nace de todo delito o falta."
The juridical concept of civil responsibility has various aspects and comprises different persons. Thus, there
is a civil responsibility, properly speaking, which in no case carries with it any criminal responsibility, and
another which is a necessary consequence of the penal liability as a result of every felony or misdemeanor."
Maura, an outstanding authority, was consulted on the following case: There had been a collision between
two trains belonging respectively to the Ferrocarril Cantabrico and the Ferrocarril del Norte. An employee of
the latter had been prosecuted in a criminal case, in which the company had been made a party as subsidiarily
responsible in civil damages. The employee had been acquitted in the criminal case, and the employer, the
Ferrocarril del Norte, had also been exonerated. The question asked was whether the Ferrocarril Cantabrico
could still bring a civil action for damages against the Ferrocarril del Norte. Maura's opinion was in the
affirmative, stating in part (Maura, Dictamenes, Vol. 6, pp. 511-513):
Quedando las cosas asi, a proposito de la realidad pura y neta de los hechos, todavia menos parece sostenible que exista cosa
juzgada acerca de la obligacion civil de indemnizar los quebrantos y menoscabos inferidos por el choque de los trenes. El titulo en que se
funda la accion para demandar el resarcimiento, no puede confundirse con las responsabilidades civiles nacidas de delito, siquiera exista
en este, sea el cual sea, una culpa rodeada de notas agravatorias que motivan sanciones penales, mas o menos severas. La lesion causada
por delito o falta en los derechos civiles, requiere restituciones, reparaciones o indemnizaciones, que cual la pena misma atañen al orden
publico; por tal motivo vienen encomendadas, de ordinario, al Ministerio Fiscal; y claro es que si por esta via se enmiendan los quebrantos
y menoscabos, el agraviado excusa procurar el ya conseguido desagravio; pero esta eventual coincidencia de los efectos, no borra la
diversidad originaria de las acciones civiles para pedir indemnizacion.
Estas, para el caso actual (prescindiendo de culpas contractuales, que no vendrian a cuento y que tiene otro regimen), dimanan, segun el
articulo 1902 del Codigo Civil, de toda accion u omision, causante de daños o perjuicios, en que intervenga culpa o negligencia. Es trivial
que acciones semejantes son ejercitadas ante los Tribunales de lo civil cotidianamente, sin que la Justicia punitiva tenga que mezclarse
en los asuntos. Los articulos 18 al 21 y 121 al 128 del Codigo Penal, atentos al espiritu y a los fines sociales y politicos del mismo,
desenvuelven y ordenan la materia de responsabilidades civiles nacidas de delito, en terminos separados del regimen por ley comun de la
culpa que se denomina aquiliana, por alusion a precedentes legislativos del Corpus Juris. Seria intempestivo un paralelo entre aquellas
ordenaciones, y la de la obligacion de indemnizar a titulo de culpa civil; pero viene al caso y es necesaria una de las diferenciaciones que
en el tal paralelo se notarian.
Los articulos 20 y 21 del Codigo Penal, despues de distribuir a su modo las responsabilidades civiles, entre los que sean por diversos
conceptos culpables del delito o falta, las hacen extensivas a las empresas y los establecimientos al servicio de los cuales estan los
delincuentes; pero con caracter subsidiario, o sea, segun el texto literal, en defecto de los que sean responsables criminalmente . No
coincide en ello el Codigo Civil, cuyo articulo 1903, dice; La obligacion que impone el articulo anterior es exigible, no solo por los actos y
omisiones propios, sino por los de aquellas personas de quienes se debe responder; personas en la enumeracion de las cuales figuran los
dependientes y empleados de los establecimientos o empresas, sea por actos del servicio, sea con ocasion de sus funciones. Por esto
acontece, y se observa en la jurisprudencia, que las empresas, despues de intervenir en las causas criminales con el caracter subsidiario
de su responsabilidad civil por razon del delito, son demandadas y condenadas directa y aisladamente, cuando se trata de la obligacion,
ante los tribunales civiles.
Siendo como se ve, diverso el titulo de esta obligacion, y formando verdadero postulado de nuestro regimen judicial la separacion entre
justicia punitiva y tribunales de lo civil, de suerte que tienen unos y otros normas de fondo en distintos cuerpos legales, y diferentes modos
de proceder, habiendose, por añadidura, abstenido de asistir al juicio criminal la Compañia del Ferrocarril Cantabrico, que se reservo
ejercitar sus acciones, parece innegable que la de indemnizacion por los daños y perjuicios que le irrogo el choque, no estuvo sub
judice ante el Tribunal del Jurado, ni fue sentenciada, sino que permanecio intacta, al pronunciarse el fallo de 21 de marzo. Aun cuando
el veredicto no hubiese sido de inculpabilidad, mostrose mas arriba, que tal accion quedaba legitimamente reservada para despues del
proceso; pero al declararse que no existio delito, ni responsabilidad dimanada de delito, materia unica sobre que tenian jurisdiccion
aquellos juzgadores, se redobla el motivo para la obligacion civil ex lege, y se patentiza mas y mas que la accion para pedir su cumplimiento
permanece incolume, extraña a la cosa juzgada.
As things are, apropos of the reality pure and simple of the facts, it seems less tenable that there should
be res judicata with regard to the civil obligation for damages on account of the losses caused by the
collision of the trains. The title upon which the action for reparation is based cannot be confused with the
civil responsibilities born of a crime, because there exists in the latter, whatever each nature,
a culpa surrounded with aggravating aspects which give rise to penal measures that are more or less severe.
The injury caused by a felony or misdemeanor upon civil rights requires restitutions, reparations, or
indemnifications which, like the penalty itself, affect public order; for this reason, they are ordinarily
entrusted to the office of the prosecuting attorney; and it is clear that if by this means the losses and
damages are repaired, the injured party no longer desires to seek another relief; but this coincidence of
effects does not eliminate the peculiar nature of civil actions to ask for indemnity.
Such civil actions in the present case (without referring to contractual faults which are not pertinent and
belong to another scope) are derived, according to article 1902 of the Civil Code, from every act or omission
causing losses and damages in which culpa or negligence intervenes. It is unimportant that such actions
are every day filed before the civil courts without the criminal courts interfering therewith. Articles 18 to 21
and 121 to 128 of the Penal Code, bearing in mind the spirit and the social and political purposes of that
Code, develop and regulate the matter of civil responsibilities arising from a crime, separately from the
regime under common law, of culpa which is known as aquiliana, in accordance with legislative precedent
of the Corpus Juris. It would be unwarranted to make a detailed comparison between the former provisions
 and that regarding the obligation to indemnify on account of civil culpa; but it is pertinent and necessary to
point out to one of such differences.
Articles 20 and 21 of the Penal Code, after distriburing in their own way the civil responsibilities among
those who, for different reasons, are guilty of felony or misdemeanor, make such civil responsibilities
applicable to enterprises and establishments for which the guilty parties render service, but with subsidiary
character, that is to say, according to the wording of the Penal Code, in default of those who are criminally
responsible. In this regard, the Civil Code does not coincide because article 1903 says: "The obligation
imposed by the next preceding article is demandable, not only for personal acts and omissions, but also for
those of persons for whom another is responsible." Among the persons enumerated are the subordinates
and employees of establishments or enterprises, either for acts during their service or on the occasion of
their functions. It is for this reason that it happens, and it is so observed in judicial decisions, that the
companies or enterprises, after taking part in the criminal cases because of their subsidiary civil responsibility
by reason of the crime, are sued and sentenced directly and separately with regard to the obligation, before
the civil courts.
Seeing that the title of this obligation is different, and the separation between punitive justice and the civil
courts being a true postulate of our judicial system, so that they have different fundamental norms in
different codes, as well as different modes of procedure, and inasmuch as the Compaña del Ferrocarril
Cantabrico has abstained from taking part in the criminal case and has reserved the right to exercise its
actions, it seems undeniable that the action for indemnification for the losses and damages caused to it by
the collision was not sub judice before the Tribunal del Jurado, nor was it the subject of a sentence, but it
remained intact when the decision of March 21 was rendered. Even if the verdict had not been that of
acquittal, it has already been shown that such action had been legitimately reserved till after the criminal
prosecution; but because of the declaration of the non-existence of the felony and the non-existence of the
responsibility arising from the crime, which was the sole subject matter upon which the Tribunal del
Jurado had jurisdiction, there is greater reason for the civil obligation ex lege, and it becomes clearer that
the action for its enforcement remain intact and is not res judicata.
Laurent, a jurist who has written a monumental work on the French Civil Code, on which the Spanish Civil
Code is largely based and whose provisions on cuasi-delito or culpa extra-contractual are similar to those of
the Spanish Civil Code, says, referring to article 1384 of the French Civil Code which corresponds to article
1903, Spanish Civil Code:
The action can be brought directly against the person responsible (for another), without including the author
of the act. The action against the principal is accessory in the sense that it implies the existence of a
prejudicial act committed by the employee, but it is not subsidiary in the sense that it can not be instituted
till after the judgment against the author of the act or at least, that it is subsidiary to the principal action;
the action for responsibility (of the employer) is in itself a principal action. (Laurent, Principles of French
Civil Law, Spanish translation, Vol. 20, pp. 734-735.)
Amandi, in his "Cuestionario del Codigo Civil Reformado" (Vol. 4, pp. 429, 430), declares that the
responsibility of the employer is principal and not subsidiary. He writes:
Cuestion 1. La responsabilidad declarada en el articulo 1903 por las acciones u omisiones de aquellas personas por las
que se debe responder, es subsidiaria? es principal? Para contestar a esta pregunta es necesario saber, en primer lugar,
en que se funda el precepto legal. Es que realmente se impone una responsabilidad por una falta ajena? Asi parece a
primera vista; pero semejante afirmacion seria contraria a la justicia y a la maxima universal, segun la que las faltas son
personales, y cada uno responde de aquellas que le son imputables. La responsabilidad de que tratamos se impone con
ocasion de un delito o culpa, pero no por causa de ellos, sino por causa del causi delito, esto es, de la imprudencia o de
la negligencia del padre, del tutor, del dueño o director del establecimiento, del maestro, etc. Cuando cualquiera de las
personas que enumera el articulo citado (menores de edad, incapacitados, dependientes, aprendices) causan un daño,
la ley presume que el padre, el tutor, el maestro, etc., han cometido una falta de negligencia para prevenir o evitar el
daño. Esta falta es la que la ley castiga. No hay, pues, responsabilidad por un hecho ajeno, sino en la apariencia; en
realidad la responsabilidad se exige por un hecho propio. La idea de que esa responsabilidad sea subsidiaria es, por lo
tanto, completamente inadmisible.
Question No. 1. Is the responsibility declared in article 1903 for the acts or omissions of those persons for
who one is responsible, subsidiary or principal? In order to answer this question it is necessary to know, in
the first place, on what the legal provision is based. Is it true that there is a responsibility for the fault of
another person? It seems so at first sight; but such assertion would be contrary to justice and to the
universal maxim that all faults are personal, and that everyone is liable for those faults that can be imputed
to him. The responsibility in question is imposed on the occasion of a crime or fault, but not because of the
same, but because of the cuasi-delito, that is to say, the imprudence or negligence of the father, guardian,
proprietor or manager of the establishment, of the teacher, etc. Whenever anyone of the persons
enumerated in the article referred to (minors, incapacitated persons, employees, apprentices) causes any
damage, the law presumes that the father, guardian, teacher, etc. have committed an act of negligence in
not preventing or avoiding the damage. It is this fault that is condemned by the law. It is, therefore, only
apparent that there is a responsibility for the act of another; in reality the responsibility exacted is for one's
own act. The idea that such responsibility is subsidiary is, therefore, completely inadmissible.
Oyuelos, in his "Digesto: Principios, Doctrina y Jurisprudencia, Referentes al Codigo Civil Español," says in
Vol. VII, p. 743:
Es decir, no responde de hechos ajenos, porque se responde solo de su propia culpa, doctrina del articulo 1902; mas por
excepcion, se responde de la ajena respecto de aquellas personas con las que media algun nexo o vinculo, que motiva o
razona la responsabilidad. Esta responsabilidad, es directa o es subsidiaria? En el orden penal, el Codigo de esta clase
distingue entre menores e incapacitados y los demas, declarando directa la primera (articulo 19) y subsidiaria la segunda
(articulos 20 y 21); pero en el orden civil, en el caso del articulo 1903, ha de entenderse directa, por el tenor del articulo
que impone la responsabilidad precisamente "por los actos de aquellas personas de quienes se deba responder."
That is to say, one is not responsible for the acts of others, because one is liable only for his own faults,
this being the doctrine of article 1902; but, by exception, one is liable for the acts of those persons with
whom there is a bond or tie which gives rise to the responsibility. Is this responsibility direct or subsidiary?
In the order of the penal law, the Penal Code distinguishes between minors and incapacitated persons on
the one hand, and other persons on the other, declaring that the responsibility for the former is direct
(article 19), and for the latter, subsidiary (articles 20 and 21); but in the scheme of the civil law, in the case
of article 1903, the responsibility should be understood as direct, according to the tenor of that articles, for
precisely it imposes responsibility "for the acts of those persons for whom one should be responsible."
Coming now to the sentences of the Supreme Tribunal of Spain, that court has upheld the principles above
set forth: that a quasi-delict or culpa extra-contractual is a separate and distinct legal institution, independent
from the civil responsibility arising from criminal liability, and that an employer is, under article 1903 of the
Civil Code, primarily and directly responsible for the negligent acts of his employee.
One of the most important of those Spanish decisions is that of October 21, 1910. In that case, Ramon
Lafuente died as the result of having been run over by a street car owned by the "compañia Electric Madrileña
de Traccion." The conductor was prosecuted in a criminal case but he was acquitted. Thereupon, the widow
filed a civil action against the street car company, paying for damages in the amount of 15,000 pesetas. The
lower court awarded damages; so the company appealed to the Supreme Tribunal, alleging violation of articles
1902 and 1903 of the Civil Code because by final judgment the non-existence of fault or negligence had been
declared. The Supreme Court of Spain dismissed the appeal, saying:
 Considerando que el primer motivo del recurso se funda en el equivocado supuesto de que el Tribunal a quo, al condonar a la compañia
Electrica Madrileña al pago del daño causado con la muerte de Ramon La fuente Izquierdo, desconoce el valor y efectos juridicos de la
sentencia absolutoria deictada en la causa criminal que se siguio por el mismo hecho, cuando es lo cierto que de este han conocido las
dos jurisdicciones bajo diferentes as pectos, y como la de lo criminal declrao dentro de los limites de su competencia que el hecho de que
se trata no era constitutivo de delito por no haber mediado descuido o negligencia graves, lo que no excluye, siendo este el unico
fundamento del fallo absolutorio, el concurso de la culpa o negligencia no califacadas, fuente de obligaciones civiles segun el articulo 1902
del Codigo, y que alcanzan, segun el 1903, netre otras perosnas, a los Directores de establecimientos o empresas por los daños causados
por sus dependientes en determinadas condiciones, es manifesto que la de lo civil, al conocer del mismo hehco baho este ultimo aspecto
y al condenar a la compañia recurrente a la indemnizacion del daño causado por uno de sus empleados, lejos de infringer los mencionados
textos, en relacion con el articulo 116 de la Ley de Enjuciamiento Criminal, se ha atenido estrictamente a ellos, sin invadir atribuciones
ajenas a su jurisdiccion propia, ni contrariar en lo mas minimo el fallo recaido en la causa.
Considering that the first ground of the appeal is based on the mistaken supposition that the trial court, in
sentencing the Compañia Madrileña to the payment of the damage caused by the death of Ramon Lafuente
Izquierdo, disregards the value and juridical effects of the sentence of acquittal rendered in the criminal
case instituted on account of the same act, when it is a fact that the two jurisdictions had taken cognizance
of the same act in its different aspects, and as the criminal jurisdiction declared within the limits of its
authority that the act in question did not constitute a felony because there was no grave carelessness or
negligence, and this being the only basis of acquittal, it does no exclude the co-existence of fault or
negligence which is not qualified, and is a source of civil obligations according to article 1902 of the Civil
Code, affecting, in accordance with article 1903, among other persons, the managers of establishments or
enterprises by reason of the damages caused by employees under certain conditions, it is manifest that the
civil jurisdiccion in taking cognizance of the same act in this latter aspect and in ordering the company,
appellant herein, to pay an indemnity for the damage caused by one of its employees , far from violating
said legal provisions, in relation with article 116 of the Law of Criminal Procedure, strictly followed the same,
without invading attributes which are beyond its own jurisdiction, and without in any way contradicting the
decision in that cause. (Emphasis supplied.)
It will be noted, as to the case just cited:
First. That the conductor was not sued in a civil case, either separately or with the street car company. This
is precisely what happens in the present case: the driver, Fontanilla, has not been sued in a civil action, either
alone or with his employer.
Second. That the conductor had been acquitted of grave criminal negligence, but the Supreme Tribunal of
Spain said that this did not exclude the co-existence of fault or negligence, which is not qualified, on the part
of the conductor, under article 1902 of the Civil Code. In the present case, the taxi driver was found guilty of
criminal negligence, so that if he had even sued for his civil responsibility arising from the crime, he would
have been held primarily liable for civil damages, and Barredo would have been held subsidiarily liable for the
same. But the plaintiffs are directly suing Barredo, on his primary responsibility because of his own presumed
negligence — which he did not overcome — under article 1903. Thus, there were two liabilities of Barredo:
first, the subsidiary one because of the civil liability of the taxi driver arising from the latter's criminal
negligence; and, second, Barredo's primary liability as an employer under article 1903. The plaintiffs were free
to choose which course to take, and they preferred the second remedy. In so doing, they were acting within
their rights. It might be observed in passing, that the plaintiff choose the more expeditious and effective
method of relief, because Fontanilla was either in prison, or had just been released, and besides, he was
probably without property which might be seized in enforcing any judgment against him for damages.
Third. That inasmuch as in the above sentence of October 21, 1910, the employer was held liable civilly,
notwithstanding the acquittal of the employee (the conductor) in a previous criminal case, with greater reason
should Barredo, the employer in the case at bar, be held liable for damages in a civil suit filed against him
because his taxi driver had been convicted. The degree of negligence of the conductor in the Spanish case
cited was less than that of the taxi driver, Fontanilla, because the former was acquitted in the previous criminal
case while the latter was found guilty of criminal negligence and was sentenced to an indeterminate sentence
of one year and one day to two years of prision correccional.
(See also Sentence of February 19, 1902, which is similar to the one above quoted.)
In the Sentence of the Supreme Court of Spain, dated February 14, 1919, an action was brought against a
railroad company for damages because the station agent, employed by the company, had unjustly
and fraudulently, refused to deliver certain articles consigned to the plaintiff. The Supreme Court of Spain held
that this action was properly under article 1902 of the Civil Code, the court saying:
Considerando que la sentencia discutida reconoce, en virtud de los hechos que consigna con relacion a las pruebas del pleito: 1.º, que las
expediciones facturadas por la compañia ferroviaria a la consignacion del actor de las vasijas vacias que en su demanda relacionan tenian
como fin el que este las devolviera a sus remitentes con vinos y alcoholes; 2.º, que llegadas a su destino tales mercanias no se quisieron
entregar a dicho consignatario por el jefe de la estacion sin motivo justificado y con intencion dolosa, y 3.º, que la falta de entrega de
estas expediciones al tiempo de reclamarlas el demandante le originaron daños y perjuicios en cantidad de bastante importancia como
expendedor al por mayor que era de vinos y alcoholes por las ganancias que dejo de obtener al verse privado de servir los pedidos que
se le habian hecho por los remitentes en los envases:
Considerando que sobre esta base hay necesidad de estimar los cuatro motivos que integran este recurso, porque la demanda inicial del
pleito a que se contrae no contiene accion que nazca del incumplimiento del contrato de transporte, toda vez que no se funda en el retraso
de la llegada de las mercancias ni de ningun otro vinculo contractual entre las partes contendientes, careciendo, por tanto, de aplicacion
el articulo 371 del Codigo de Comercio, en que principalmente descansa el fallo recurrido, sino que se limita a pedir la reparaction de los
daños y perjuicios producidos en el patrimonio del actor por la injustificada y dolosa negativa del porteador a la entrega de las mercancias
a su nombre consignadas, segun lo reconoce la sentencia, y cuya responsabilidad esta claramente sancionada en el articulo 1902 del
Codigo Civil, que obliga por el siguiente a la Compañia demandada como ligada con el causante de aquellos por relaciones de caracter
economico y de jurarquia administrativa.
Considering that the sentence, in question recognizes, in virtue of the facts which it declares, in relation to
the evidence in the case: (1) that the invoice issued by the railroad company in favor of the plaintiff
contemplated that the empty receptacles referred to in the complaint should be returned to the consignors
with wines and liquors; (2) that when the said merchandise reached their destination, their delivery to the
consignee was refused by the station agent without justification and with fraudulent intent, and (3) that the
lack of delivery of these goods when they were demanded by the plaintiff caused him losses and damages
of considerable importance, as he was a wholesale vendor of wines and liquors and he failed to realize the
profits when he was unable to fill the orders sent to him by the consignors of the receptacles:
Considering that upon this basis there is need of upholding the four assignments of error, as the original
complaint did not contain any cause of action arising from non-fulfillment of a contract of transportation,
because the action was not based on the delay of the goods nor on any contractual relation between the
parties litigant and, therefore, article 371 of the Code of Commerce, on which the decision appealed from
is based, is not applicable; but it limits to asking for reparation for losses and damages produced on the
patrimony of the plaintiff on account of the unjustified and fraudulent refusal of the carrier to deliver the
goods consigned to the plaintiff as stated by the sentence, and the carrier's responsibility is clearly laid
down in article 1902 of the Civil Code which binds, in virtue of the next article, the defendant company,
because the latter is connected with the person who caused the damage by relations of economic character
and by administrative hierarchy. (Emphasis supplied.)
The above case is pertinent because it shows that the same act may come under both the Penal Code and
the Civil Code. In that case, the action of the agent was unjustified and fraudulent and therefore could have
been the subject of a criminal action. And yet, it was held to be also a proper subject of a civil action under
article 1902 of the Civil Code. It is also to be noted that it was the employer and not the employee who was
being sued.
Let us now examine the cases previously decided by this Court.
In the leading case of Rakes vs. Atlantic Gulf and Pacific Co. (7 Phil., 359, 362-365 [year 1907]), the trial court
awarded damages to the plaintiff, a laborer of the defendant, because the latter had negligently failed to
repair a tramway in consequence of which the rails slid off while iron was being transported, and caught the
plaintiff whose leg was broken. This Court held:
It is contended by the defendant, as its first defense to the action that the necessary conclusion from
these collated laws is that the remedy for injuries through negligence lies only in a criminal action in
which the official criminally responsible must be made primarily liable and his employer held only
subsidiarily to him. According to this theory the plaintiff should have procured the arrest of the
representative of the company accountable for not repairing the track, and on his prosecution a
suitable fine should have been imposed, payable primarily by him and secondarily by his employer.
This reasoning misconceived the plan of the Spanish codes upon this subject. Article 1093 of the Civil
Code makes obligations arising from faults or negligence not punished by the law, subject to the
provisions of Chapter II of Title XVI. Section 1902 of that chapter reads:
"A person who by an act or omission causes damage to another when there is fault or
negligence shall be obliged to repair the damage so done.
"SEC. 1903. The obligation imposed by the preceeding article is demandable, not only for
personal acts and omissions, but also for those of the persons for whom they should be
responsible.
"The father, and on his death or incapacity, the mother, is liable for the damages caused
by the minors who live with them.
xxx xxx xxx
"Owners or directors of an establishment or enterprise are equally liable for the damages
caused by their employees in the service of the branches in which the latter may be
employed or in the performance of their duties.
xxx xxx xxx
"The liability referred to in this article shall cease when the persons mentioned therein prove
that they employed all the diligence of a good father of a family to avoid the damage."
As an answer to the argument urged in this particular action it may be sufficient to point out that
nowhere in our general statutes is the employer penalized for failure to provide or maintain safe
appliances for his workmen. His obligation therefore is one 'not punished by the laws' and falls under
civil rather than criminal jurisprudence. But the answer may be a broader one. We should be
reluctant, under any conditions, to adopt a forced construction of these scientific codes, such as is
proposed by the defendant, that would rob some of these articles of effect, would shut out litigants
against their will from the civil courts, would make the assertion of their rights dependent upon the
selection for prosecution of the proper criminal offender, and render recovery doubtful by reason of
the strict rules of proof prevailing in criminal actions. Even if these articles had always stood alone,
such a construction would be unnecessary, but clear light is thrown upon their meaning by the
provisions of the Law of Criminal Procedure of Spain (Ley de Enjuiciamiento Criminal), which, though
never in actual force in these Islands, was formerly given a suppletory or explanatory effect. Under
article 111 of this law, both classes of action, civil and criminal, might be prosecuted jointly or
separately, but while the penal action was pending the civil was suspended. According to article 112,
the penal action once started, the civil remedy should be sought therewith, unless it had been waived
by the party injured or been expressly reserved by him for civil proceedings for the future. If the civil
action alone was prosecuted, arising out of a crime that could be enforced only on private complaint,
the penal action thereunder should be extinguished. These provisions are in harmony with those of
articles 23 and 133 of our Penal Code on the same subject.
An examination of this topic might be carried much further, but the citation of these articles suffices
to show that the civil liability was not intended to be merged in the criminal nor even to be suspended
thereby, except as expressly provided in the law. Where an individual is civilly liable for a negligent
act or omission, it is not required that the injured party should seek out a third person criminally
liable whose prosecution must be a condition precedent to the enforcement of the civil right.
Under article 20 of the Penal Code the responsibility of an employer may be regarded as subsidiary
in respect of criminal actions against his employees only while they are in process of prosecution, or
in so far as they determine the existence of the criminal act from which liability arises, and his
obligation under the civil law and its enforcement in the civil courts is not barred thereby unless by
the election of the injured person. Inasmuch as no criminal proceeding had been instituted, growing
our of the accident in question, the provisions of the Penal Code can not affect this action. This
construction renders it unnecessary to finally determine here whether this subsidiary civil liability in
penal actions has survived the laws that fully regulated it or has been abrogated by the American
civil and criminal procedure now in force in the Philippines.
The difficulty in construing the articles of the code above cited in this case appears from the briefs
before us to have arisen from the interpretation of the words of article 1093, "fault or negligence not
punished by law," as applied to the comprehensive definition of offenses in articles 568 and 590 of
the Penal Code. It has been shown that the liability of an employer arising out of his relation to his
employee who is the offender is not to be regarded as derived from negligence punished by the law,
within the meaning of articles 1902 and 1093. More than this, however, it cannot be said to fall within
the class of acts unpunished by the law, the consequence of which are regulated by articles 1902
and 1903 of the Civil Code. The acts to which these articles are applicable are understood to be those
not growing out of pre-existing duties of the parties to one another. But where relations already
formed give rise to duties, whether springing from contract or quasi contract, then breaches of those
duties are subject to articles 1101, 1103, and 1104 of the same code. A typical application of this
distinction may be found in the consequences of a railway accident due to defective machinery
supplied by the employer. His liability to his employee would arise out of the contract of employment,
that to the passengers out of the contract for passage, while that to the injured bystander would
originate in the negligent act itself.
In Manzanares vs. Moreta, 38 Phil., 821 (year 1918), the mother of the 8 of 9-year-old child Salvador Bona
brought a civil action against Moreta to recover damages resulting from the death of the child, who had been
run over by an automobile driven and managed by the defendant. The trial court rendered judgment requiring
the defendant to pay the plaintiff the sum of P1,000 as indemnity: This Court in affirming the judgment, said
in part:
If it were true that the defendant, in coming from the southern part of Solana Street, had to stop his
auto before crossing Real Street, because he had met vehicles which were going along the latter
 street or were coming from the opposite direction along Solana Street, it is to be believed that, when
he again started to run his auto across said Real Street and to continue its way along Solana Street
northward, he should have adjusted the speed of the auto which he was operating until he had fully
crossed Real Street and had completely reached a clear way on Solana Street. But, as the child was
run over by the auto precisely at the entrance of Solana Street, this accident could not have occurred
if the auto had been running at a slow speed, aside from the fact that the defendant, at the moment
of crossing Real Street and entering Solana Street, in a northward direction, could have seen the
child in the act of crossing the latter street from the sidewalk on the right to that on the left, and if
the accident had occurred in such a way that after the automobile had run over the body of the child,
and the child's body had already been stretched out on the ground, the automobile still moved along
a distance of about 2 meters, this circumstance shows the fact that the automobile entered Solana
Street from Real Street, at a high speed without the defendant having blown the horn. If these
precautions had been taken by the defendant, the deplorable accident which caused the death of
the child would not have occurred.
It will be noticed that the defendant in the above case could have been prosecuted in a criminal case because
his negligence causing the death of the child was punishable by the Penal Code. Here is therefore a clear
instance of the same act of negligence being a proper subject-matter either of a criminal action with its
consequent civil liability arising from a crime or of an entirely separate and independent civil action for fault
or negligence under article 1902 of the Civil Code. Thus, in this jurisdiction, the separate individually of a cuasi-
delito or culpa aquiliana under the Civil Code has been fully and clearly recognized, even with regard to a
negligent act for which the wrongdoer could have been prosecuted and convicted in a criminal case and for
which, after such a conviction, he could have been sued for this civil liability arising from his crime.
Years later (in 1930) this Court had another occasion to apply the same doctrine. In Bernal and Enverso vs.
House and Tacloban Electric & Ice Plant, Ltd., 54 Phil., 327, the parents of the five-year-old child, Purificacion
Bernal, brought a civil action to recover damages for the child's death as a result of burns caused by the fault
and negligence of the defendants. On the evening of April 10, 1925, the Good Friday procession was held in
Tacloban, Leyte. Fortunata Enverso with her daughter Purificacion Bernal had come from another municipality
to attend the same. After the procession the mother and the daughter with two others were passing along
Gran Capitan Street in front of the offices of the Tacloban Electric & Ice Plant, Ltd., owned by defendants J.
V. House, when an automobile appeared from the opposite direction. The little girl, who was slightly ahead of
the rest, was so frightened by the automobile that she turned to run, but unfortunately she fell into the street
gutter where hot water from the electric plant was flowing. The child died that same night from the burns.
The trial courts dismissed the action because of the contributory negligence of the plaintiffs. But this Court
held, on appeal, that there was no contributory negligence, and allowed the parents P1,000 in damages from
J. V. House who at the time of the tragic occurrence was the holder of the franchise for the electric plant. This
Court said in part:
Although the trial judge made the findings of fact hereinbefore outlined, he nevertheless was led to
order the dismissal of the action because of the contributory negligence of the plaintiffs. It is from
this point that a majority of the court depart from the stand taken by the trial judge. The mother and
her child had a perfect right to be on the principal street of Tacloban, Leyte, on the evening when
the religious procession was held. There was nothing abnormal in allowing the child to run along a
few paces in advance of the mother. No one could foresee the coincidence of an automobile
appearing and of a frightened child running and falling into a ditch filled with hot water. The doctrine
announced in the much debated case of Rakes vs. Atlantic Gulf and Pacific Co. ([1907]), 7 Phil., 359),
still rule. Article 1902 of the Civil Code must again be enforced. The contributory negligence of the
child and her mother, if any, does not operate as a bar to recovery, but in its strictest sense could
only result in reduction of the damages.
It is most significant that in the case just cited, this Court specifically applied article 1902 of the Civil Code. It
is thus that although J. V. House could have been criminally prosecuted for reckless or simple negligence and
not only punished but also made civilly liable because of his criminal negligence, nevertheless this Court
awarded damages in an independent civil action for fault or negligence under article 1902 of the Civil Code.
In Bahia vs. Litonjua and Leynes (30 Phil., 624 [year 1915), the action was for damages for the death of the
plaintiff's daughter alleged to have been caused by the negligence of the servant in driving an automobile
over the child. It appeared that the cause of the mishap was a defect in the steering gear. The defendant
Leynes had rented the automobile from the International Garage of Manila, to be used by him in carrying
passengers during the fiesta of Tuy, Batangas. Leynes was ordered by the lower court to pay P1,000 as
damages to the plaintiff. On appeal this Court reversed the judgment as to Leynes on the ground that he had
shown that the exercised the care of a good father of a family, thus overcoming the presumption of negligence
under article 1903. This Court said:
As to selection, the defendant has clearly shown that he exercised the care and diligence of a good
father of a family. He obtained the machine from a reputable garage and it was, so far as appeared,
in good condition. The workmen were likewise selected from a standard garage, were duly licensed
by the Government in their particular calling, and apparently thoroughly competent. The machine
had been used but a few hours when the accident occurred and it is clear from the evidence that the
defendant had no notice, either actual or constructive, of the defective condition of the steering gear.
The legal aspect of the case was discussed by this Court thus:
Article 1903 of the Civil Code not only establishes liability in cases of negligence, but also provides
when the liability shall cease. It says:
"The liability referred to in this article shall cease when the persons mentioned therein prove
that they employed all the diligence of a good father of a family to avoid the damage."
From this article two things are apparent: (1) That when an injury is caused by the negligence of a
servant or employee there instantly arises a presumption of law that there was negligence on the
part of the matter or employer either in the selection of the servant or employee, or in supervision
over him after the selection, or both; and (2) that presumption is juris tantum and not juris et de
jure, and consequently, may be rebutted. It follows necessarily that if the employer shows to the
satisfaction of the court that in selection and supervision he has exercised the care and diligence of
a good father of a family, the presumption is overcome and he is relieve from liability.
This theory bases the responsibility of the master ultimately on his own negligence and not on that
of his servant.
The doctrine of the case just cited was followed by this Court in Cerf vs. Medel (33 Phil., 37 [year 1915]). In
the latter case, the complaint alleged that the defendant's servant had so negligently driven an automobile,
which was operated by defendant as a public vehicle, that said automobile struck and damaged the plaintiff's
motorcycle. This Court, applying article 1903 and following the rule in Bahia vs. Litonjua and Leynes, said in
part (p. 41) that:
The master is liable for the negligent acts of his servant where he is the owner or director of a
business or enterprise and the negligent acts are committed while the servant is engaged in his
master's employment as such owner.
Another case which followed the decision in Bahia vs. Litonjua and Leynes was Cuison vs. Norton & Harrison
Co., 55 Phil., 18 (year 1930). The latter case was an action for damages brought by Cuison for the death of
his seven-year-old son Moises. The little boy was on his way to school with his sister Marciana. Some large
pieces of lumber fell from a truck and pinned the boy underneath, instantly killing him. Two youths, Telesforo
Binoya and Francisco Bautista, who were working for Ora, an employee of defendant Norton & Harrison Co.,
pleaded guilty to the crime of homicide through reckless negligence and were sentenced accordingly. This
Court, applying articles 1902 and 1903, held:
The basis of civil law liability is not respondent superior but the relationship of pater familias. This
theory bases the liability of the master ultimately on his own negligence and not on that of his
servant. (Bahia vs.Litonjua and Leynes [1915], 30 Phil., 624; Cangco vs. Manila Railroad Co. [1918],
38 Phil., 768.)
In Walter A. Smith & Co. vs. Cadwallader Gibson Lumber Co., 55 Phil., 517 (year 1930) the plaintiff brought
an action for damages for the demolition of its wharf, which had been struck by the steamer Helen C belonging
to the defendant. This Court held (p. 526):
The evidence shows that Captain Lasa at the time the plaintiff's wharf collapsed was a duly licensed
captain, authorized to navigate and direct a vessel of any tonnage, and that the appellee contracted
his services because of his reputation as a captain, according to F. C. Cadwallader. This being so, we
are of the opinion that the presumption of liability against the defendant has been overcome by the
exercise of the care and diligence of a good father of a family in selecting Captain Lasa, in accordance
with the doctrines laid down by this court in the cases cited above, and the defendant is therefore
absolved from all liability.
It is, therefore, seen that the defendant's theory about his secondary liability is negatived by the six cases
above set forth. He is, on the authority of these cases, primarily and directly responsible in damages under
article 1903, in relation to article 1902, of the Civil Code.
Let us now take up the Philippine decisions relied upon by the defendant. We study first, City of Manila vs.
Manila Electric Co., 52 Phil., 586 (year 1928). A collision between a truck of the City of Manila and a street car
of the Manila Electric Co. took place on June 8, 1925. The truck was damaged in the amount of P1,788.27.
Sixto Eustaquio, the motorman, was prosecuted for the crime of damage to property and slight injuries through
reckless imprudence. He was found guilty and sentenced to pay a fine of P900, to indemnify the City of Manila
for P1,788.27, with subsidiary imprisonment in case of insolvency. Unable to collect the indemnity from
Eustaquio, the City of Manila filed an action against the Manila Electric Company to obtain payment, claiming
that the defendant was subsidiarily liable. The main defense was that the defendant had exercised the
diligence of a good father of a family to prevent the damage. The lower court rendered judgment in favor of
the plaintiff. This Court held, in part, that this case was governed by the Penal Code, saying:
With this preliminary point out of the way, there is no escaping the conclusion that the provisions of
the Penal Code govern. The Penal Code in easily understandable language authorizes the
determination of subsidiary liability. The Civil Code negatives its application by providing that civil
obligations arising from crimes or misdemeanors shall be governed by the provisions of the Penal
Code. The conviction of the motorman was a misdemeanor falling under article 604 of the Penal
Code. The act of the motorman was not a wrongful or negligent act or omission not punishable by
law. Accordingly, the civil obligation connected up with the Penal Code and not with article 1903 of
the Civil Code. In other words, the Penal Code affirms its jurisdiction while the Civil Code negatives
its jurisdiction. This is a case of criminal negligence out of which civil liability arises and not a case of
civil negligence.
xxx xxx xxx
Our deduction, therefore, is that the case relates to the Penal Code and not to the Civil Code. Indeed,
as pointed out by the trial judge, any different ruling would permit the master to escape scot-free by
simply alleging and proving that the master had exercised all diligence in the selection and training
of its servants to prevent the damage. That would be a good defense to a strictly civil action, but
might or might not be to a civil action either as a part of or predicated on conviction for a crime or
misdemeanor. (By way of parenthesis, it may be said further that the statements here made are
offered to meet the argument advanced during our deliberations to the effect that article 0902 of the
Civil Code should be disregarded and codal articles 1093 and 1903 applied.)
It is not clear how the above case could support the defendant's proposition, because the Court of Appeals
based its decision in the present case on the defendant's primary responsibility under article 1903 of the Civil
Code and not on his subsidiary liability arising from Fontanilla's criminal negligence. In other words, the case
of City of Manila vs. Manila Electric Co., supra, is predicated on an entirely different theory, which is the
subsidiary liability of an employer arising from a criminal act of his employee, whereas the foundation of the
decision of the Court of Appeals in the present case is the employer's primary liability under article 1903 of
the Civil Code. We have already seen that this is a proper and independent remedy.
Arambulo vs. Manila Electric Co. (55 Phil., 75), is another case invoked by the defendant. A motorman in the
employ of the Manila Electric Company had been convicted o homicide by simple negligence and sentenced,
among other things, to pay the heirs of the deceased the sum of P1,000. An action was then brought to
enforce the subsidiary liability of the defendant as employer under the Penal Code. The defendant attempted
to show that it had exercised the diligence of a good father of a family in selecting the motorman, and therefore
claimed exemption from civil liability. But this Court held:
In view of the foregoing considerations, we are of opinion and so hold, (1) that the exemption from
civil liability established in article 1903 of the Civil Code for all who have acted with the diligence of
a good father of a family, is not applicable to the subsidiary civil liability provided in article 20 of the
Penal Code.
The above case is also extraneous to the theory of the defendant in the instant case, because the action there
had for its purpose the enforcement of the defendant's subsidiary liability under the Penal Code, while in the
case at bar, the plaintiff's cause of action is based on the defendant's primary and direct responsibility under
article 1903 of the Civil Code. In fact, the above case destroys the defendant's contention because that decision
illustrates the principle that the employer's primary responsibility under article 1903 of the Civil Code is
different in character from his subsidiary liability under the Penal Code.
In trying to apply the two cases just referred to, counsel for the defendant has failed to recognize the
distinction between civil liability arising from a crime, which is governed by the Penal Code, and the
responsibility for cuasi-delito or culpa aquiliana under the Civil Code, and has likewise failed to give the
importance to the latter type of civil action.
The defendant-petitioner also cites Francisco vs. Onrubia (46 Phil., 327). That case need not be set forth.
Suffice it to say that the question involved was also civil liability arising from a crime. Hence, it is as inapplicable
as the two cases above discussed.
The foregoing authorities clearly demonstrate the separate individuality of cuasi-delitos or culpa
aquiliana under the Civil Code. Specifically they show that there is a distinction between civil liability arising
from criminal negligence (governed by the Penal Code) and responsibility for fault or negligence under articles
1902 to 1910 of the Civil Code, and that the same negligent act may produce either a civil liability arising from
a crime under the Penal Code, or a separate responsibility for fault or negligence under articles 1902 to 1910
of the Civil Code. Still more concretely, the authorities above cited render it inescapable to conclude that the
employer — in this case the defendant-petitioner — is primarily and directly liable under article 1903 of the
Civil Code.
The legal provisions, authors, and cases already invoked should ordinarily be sufficient to dispose of this case.
But inasmuch as we are announcing doctrines that have been little understood in the past, it might not be
inappropriate to indicate their foundations.
Firstly, the Revised Penal Code in article 365 punishes not only reckless but also simple negligence. If we were
to hold that articles 1902 to 1910 of the Civil Code refer only to fault or negligence not punished by law,
according to the literal import of article 1093 of the Civil Code, the legal institution of culpa aquiliana would
have very little scope and application in actual life. Death or injury to persons and damage to property through
any degree of negligence — even the slightest — would have to be indemnified only through the principle of
civil liability arising from a crime. In such a state of affairs, what sphere would remain for cuasi-delito or culpa
aquiliana? We are loath to impute to the lawmaker any intention to bring about a situation so absurd and
anomalous. Nor are we, in the interpretation of the laws, disposed to uphold the letter that killeth rather than
the spirit that giveth life. We will not use the literal meaning of the law to smother and render almost lifeless
a principle of such ancient origin and such full-grown development as culpa aquiliana or cuasi-delito, which is
conserved and made enduring in articles 1902 to 1910 of the Spanish Civil Code.
Secondly, to find the accused guilty in a criminal case, proof of guilt beyond reasonable doubt is required,
while in a civil case, preponderance of evidence is sufficient to make the defendant pay in damages. There
are numerous cases of criminal negligence which can not be shown beyond reasonable doubt, but can be
proved by a preponderance of evidence. In such cases, the defendant can and should be made responsible in
a civil action under articles 1902 to 1910 of the Civil Code. Otherwise, there would be many instances of
unvindicated civil wrongs. Ubi jus ibi remedium.
employer on the principle of representation of the principal by the agent. Thus, Oyuelos says in the work
already cited (Vol. 7, p. 747) that before third persons the employer and employee "vienen a ser como una
sola personalidad, por refundicion de la del dependiente en la de quien le emplea y utiliza." ("become as one
personality by the merging of the person of the employee in that of him who employs and utilizes him.") All
these observations acquire a peculiar force and significance when it comes to motor accidents, and there is
need of stressing and accentuating the responsibility of owners of motor vehicles.
Fourthly, because of the broad sweep of the provisions of both the Penal Code and the Civil Code on this
subject, which has given rise to the overlapping or concurrence of spheres already discussed, and for lack of
understanding of the character and efficacy of the action for culpa aquiliana, there has grown up a common
practice to seek damages only by virtue of the civil responsibility arising from a crime, forgetting that there is
another remedy, which is by invoking articles 1902-1910 of the Civil Code. Although this habitual method is
allowed by our laws, it has nevertheless rendered practically useless and nugatory the more expeditious and
effective remedy based on culpa aquiliana or culpa extra-contractual. In the present case, we are asked to
help perpetuate this usual course. But we believe it is high time we pointed out to the harm done by such
practice and to restore the principle of responsibility for fault or negligence under articles 1902 et seq. of the
Civil Code to its full rigor. It is high time we caused the stream of quasi-delict or culpa aquiliana to flow on its
own natural channel, so that its waters may no longer be diverted into that of a crime under the Penal Code.
This will, it is believed, make for the better safeguarding of private rights because it re-establishes an ancient
and additional remedy, and for the further reason that an independent civil action, not depending on the
issues, limitations and results of a criminal prosecution, and entirely directed by the party wronged or his
counsel, is more likely to secure adequate and efficacious redress.
In view of the foregoing, the judgment of the Court of Appeals should be and is hereby affirmed, with costs
against the defendant-petitioner.

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
TORTS – TORTS VS. QUASI-DELICT VS. DELICT
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.
TORTS –QUASI-DELICT AND CONTRACT
G.R. No. L-21438 September 28, 1966
AIR FRANCE, petitioner,
vs.
RAFAEL CARRASCOSO and the HONORABLE COURT OF APPEALS, respondents.
SANCHEZ, J.:
The Court of First Instance of Manila 1 sentenced petitioner to pay respondent Rafael Carrascoso P25,000.00
by way of moral damages; P10,000.00 as exemplary damages; P393.20 representing the difference in fare
between first class and tourist class for the portion of the trip Bangkok-Rome, these various amounts with
interest at the legal rate, from the date of the filing of the complaint until paid; plus P3,000.00 for attorneys'
fees; and the costs of suit.
On appeal,2 the Court of Appeals slightly reduced the amount of refund on Carrascoso's plane ticket from
P393.20 to P383.10, and voted to affirm the appealed decision "in all other respects", with costs against
petitioner.
The case is now before us for review on certiorari.
The facts declared by the Court of Appeals as " fully supported by the evidence of record", are:
Plaintiff, a civil engineer, was a member of a group of 48 Filipino pilgrims that left Manila for Lourdes
on March 30, 1958.
On March 28, 1958, the defendant, Air France, through its authorized agent, Philippine Air Lines,
Inc., issued to plaintiff a "first class" round trip airplane ticket from Manila to Rome. From Manila to
Bangkok, plaintiff travelled in "first class", but at Bangkok, the Manager of the defendant airline
forced plaintiff to vacate the "first class" seat that he was occupying because, in the words of the
witness Ernesto G. Cuento, there was a "white man", who, the Manager alleged, had a "better right"
to the seat. When asked to vacate his "first class" seat, the plaintiff, as was to be expected, refused,
and told defendant's Manager that his seat would be taken over his dead body; a commotion ensued,
and, according to said Ernesto G. Cuento, "many of the Filipino passengers got nervous in the tourist
class; when they found out that Mr. Carrascoso was having a hot discussion with the white man
[manager], they came all across to Mr. Carrascoso and pacified Mr. Carrascoso to give his seat to
the white man" (Transcript, p. 12, Hearing of May 26, 1959); and plaintiff reluctantly gave his "first
class" seat in the plane.3
1. The trust of the relief petitioner now seeks is that we review "all the findings" 4 of respondent Court of
Appeals. Petitioner charges that respondent court failed to make complete findings of fact on all the issues
properly laid before it. We are asked to consider facts favorable to petitioner, and then, to overturn the
appellate court's decision.
Coming into focus is the constitutional mandate that "No decision shall be rendered by any court of record
without expressing therein clearly and distinctly the facts and the law on which it is based". 5 This is echoed
in the statutory demand that a judgment determining the merits of the case shall state "clearly and distinctly
the facts and the law on which it is based"; 6 and that "Every decision of the Court of Appeals shall contain
complete findings of fact on all issues properly raised before it". 7
A decision with absolutely nothing to support it is a nullity. It is open to direct attack. 8 The law, however,
solely insists that a decision state the "essential ultimate facts" upon which the court's conclusion is drawn. 9 A
court of justice is not hidebound to write in its decision every bit and piece of evidence 10 presented by one
party and the other upon the issues raised. Neither is it to be burdened with the obligation "to specify in the
sentence the facts" which a party "considered as proved". 11 This is but a part of the mental process from
which the Court draws the essential ultimate facts. A decision is not to be so clogged with details such that
prolixity, if not confusion, may result. So long as the decision of the Court of Appeals contains the necessary
facts to warrant its conclusions, it is no error for said court to withhold therefrom "any specific finding of facts
with respect to the evidence for the defense". Because as this Court well observed, "There is no law that so
requires". 12 Indeed, "the mere failure to specify (in the decision) the contentions of the appellant and the
reasons for refusing to believe them is not sufficient to hold the same contrary to the requirements of the
provisions of law and the Constitution". It is in this setting that in Manigque, it was held that the mere fact
that the findings "were based entirely on the evidence for the prosecution without taking into consideration
or even mentioning the appellant's side in the controversy as shown by his own testimony", would not vitiate
the judgment. 13 If the court did not recite in the decision the testimony of each witness for, or each item of
evidence presented by, the defeated party, it does not mean that the court has overlooked such testimony or
such item of evidence. 14 At any rate, the legal presumptions are that official duty has been regularly
performed, and that all the matters within an issue in a case were laid before the court and passed upon by
it. 15
Findings of fact, which the Court of Appeals is required to make, maybe defined as "the written statement of
the ultimate facts as found by the court ... and essential to support the decision and judgment rendered
thereon". 16They consist of the court's "conclusions" with respect to the determinative facts in issue". 17 A
question of law, upon the other hand, has been declared as "one which does not call for an examination of
the probative value of the evidence presented by the parties." 18
2. By statute, "only questions of law may be raised" in an appeal by certiorari from a judgment of the Court
of Appeals. 19 That judgment is conclusive as to the facts. It is not appropriately the business of this Court to
alter the facts or to review the questions of fact. 20
With these guideposts, we now face the problem of whether the findings of fact of the Court of Appeals
support its judgment.
3. Was Carrascoso entitled to the first class seat he claims?
It is conceded in all quarters that on March 28, 1958 he paid to and received from petitioner a first class ticket.
But petitioner asserts that said ticket did not represent the true and complete intent and agreement of the
parties; that said respondent knew that he did not have confirmed reservations for first class on any specific
flight, although he had tourist class protection; that, accordingly, the issuance of a first class ticket was no
guarantee that he would have a first class ride, but that such would depend upon the availability of first class
seats.
These are matters which petitioner has thoroughly presented and discussed in its brief before the Court of
Appeals under its third assignment of error, which reads: "The trial court erred in finding that plaintiff had
confirmed reservations for, and a right to, first class seats on the "definite" segments of his journey, particularly
that from Saigon to Beirut". 21
And, the Court of Appeals disposed of this contention thus:
Defendant seems to capitalize on the argument that the issuance of a first-class ticket was no
guarantee that the passenger to whom the same had been issued, would be accommodated in the
first-class compartment, for as in the case of plaintiff he had yet to make arrangements upon arrival
at every station for the necessary first-class reservation. We are not impressed by such a reasoning.
We cannot understand how a reputable firm like defendant airplane company could have the
indiscretion to give out tickets it never meant to honor at all. It received the corresponding amount
in payment of first-class tickets and yet it allowed the passenger to be at the mercy of its employees.
It is more in keeping with the ordinary course of business that the company should know whether or
riot the tickets it issues are to be honored or not.22
Not that the Court of Appeals is alone. The trial court similarly disposed of petitioner's contention, thus:
On the fact that plaintiff paid for, and was issued a "First class" ticket, there can be no question. Apart from
his testimony, see plaintiff's Exhibits "A", "A-1", "B", "B-1," "B-2", "C" and "C-1", and defendant's own witness,
Rafael Altonaga, confirmed plaintiff's testimony and testified as follows:
Q. In these tickets there are marks "O.K." From what you know, what does this OK mean?
A. That the space is confirmed.
Q. Confirmed for first class?
A. Yes, "first class". (Transcript, p. 169)
xxx xxx xxx
Defendant tried to prove by the testimony of its witnesses Luis Zaldariaga and Rafael Altonaga that although
plaintiff paid for, and was issued a "first class" airplane ticket, the ticket was subject to confirmation in
Hongkong. The court cannot give credit to the testimony of said witnesses. Oral evidence cannot prevail over
written evidence, and plaintiff's Exhibits "A", "A-l", "B", "B-l", "C" and "C-1" belie the testimony of said
witnesses, and clearly show that the plaintiff was issued, and paid for, a first class ticket without any
reservation whatever.
Furthermore, as hereinabove shown, defendant's own witness Rafael Altonaga testified that the reservation
for a "first class" accommodation for the plaintiff was confirmed. The court cannot believe that after such
confirmation defendant had a verbal understanding with plaintiff that the "first class" ticket issued to him by
defendant would be subject to confirmation in Hongkong. 23
We have heretofore adverted to the fact that except for a slight difference of a few pesos in the amount
refunded on Carrascoso's ticket, the decision of the Court of First Instance was affirmed by the Court of
Appeals in all other respects. We hold the view that such a judgment of affirmance has merged the judgment
of the lower court. 24Implicit in that affirmance is a determination by the Court of Appeals that the proceeding
in the Court of First Instance was free from prejudicial error and "all questions raised by the assignments of
error and all questions that might have been raised are to be regarded as finally adjudicated against the
appellant". So also, the judgment affirmed "must be regarded as free from all error". 25 We reached this policy
construction because nothing in the decision of the Court of Appeals on this point would suggest that its
findings of fact are in any way at war with those of the trial court. Nor was said affirmance by the Court of
Appeals upon a ground or grounds different from those which were made the basis of the conclusions of the
trial court. 26
If, as petitioner underscores, a first-class-ticket holder is not entitled to a first class seat, notwithstanding the
fact that seat availability in specific flights is therein confirmed, then an air passenger is placed in the hollow
of the hands of an airline. What security then can a passenger have? It will always be an easy matter for an
airline aided by its employees, to strike out the very stipulations in the ticket, and say that there was a verbal
agreement to the contrary. What if the passenger had a schedule to fulfill? We have long learned that, as a
rule, a written document speaks a uniform language; that spoken word could be notoriously unreliable. If only
to achieve stability in the relations between passenger and air carrier, adherence to the ticket so issued is
desirable. Such is the case here. The lower courts refused to believe the oral evidence intended to defeat the
covenants in the ticket.
The foregoing are the considerations which point to the conclusion that there are facts upon which the Court
of Appeals predicated the finding that respondent Carrascoso had a first class ticket and was entitled to a first
class seat at Bangkok, which is a stopover in the Saigon to Beirut leg of the flight. 27 We perceive no "welter
of distortions by the Court of Appeals of petitioner's statement of its position", as charged by petitioner. 28 Nor
do we subscribe to petitioner's accusation that respondent Carrascoso "surreptitiously took a first class seat
to provoke an issue". 29And this because, as petitioner states, Carrascoso went to see the Manager at his
office in Bangkok "to confirm my seat and because from Saigon I was told again to see the Manager". 30 Why,
then, was he allowed to take a first class seat in the plane at Bangkok, if he had no seat? Or, if another had
a better right to the seat?
4. Petitioner assails respondent court's award of moral damages. Petitioner's trenchant claim is that
Carrascoso's action is planted upon breach of contract; that to authorize an award for moral damages there
must be an averment of fraud or bad faith;31 and that the decision of the Court of Appeals fails to make a
finding of bad faith. The pivotal allegations in the complaint bearing on this issue are:
3. That ... plaintiff entered into a contract of air carriage with the Philippine Air Lines for a valuable
consideration, the latter acting as general agents for and in behalf of the defendant, under which
said contract, plaintiff was entitled to, as defendant agreed to furnish plaintiff, First Class passage on
defendant's plane during the entire duration of plaintiff's tour of Europe with Hongkong as starting
point up to and until plaintiff's return trip to Manila, ... .
4. That, during the first two legs of the trip from Hongkong to Saigon and from Saigon to Bangkok,
defendant furnished to the plaintiff First Class accommodation but only after protestations,
arguments and/or insistence were made by the plaintiff with defendant's employees.
5. That finally, defendant failed to provide First Class passage, but instead furnished plaintiff
only Tourist Class accommodations from Bangkok to Teheran and/or Casablanca, ... the plaintiff has
been compelled by defendant's employees to leave the First Class accommodation berths at
Bangkok after he was already seated.
6. That consequently, the plaintiff, desiring no repetition of the inconvenience and embarrassments
brought by defendant's breach of contract was forced to take a Pan American World Airways plane
on his return trip from Madrid to Manila.32
xxx xxx xxx
2. That likewise, as a result of defendant's failure to furnish First Class accommodations aforesaid, plaintiff defendant's witness Rafael Altonaga who, when asked to explain the meaning of the letters "O.K." appearing
suffered inconveniences, embarrassments, and humiliations, thereby causing plaintiff mental anguish, serious on the tickets of plaintiff, said "that the space is confirmed for first class. Likewise, Zenaida Faustino, another
anxiety, wounded feelings, social humiliation, and the like injury, resulting in moral damages in the amount witness for defendant, who was the chief of the Reservation Office of defendant, testified as follows:
of P30,000.00. 33
"Q How does the person in the ticket-issuing office know what reservation the passenger has arranged
xxx xxx xxx with you?

The foregoing, in our opinion, substantially aver: First, That there was a contract to furnish plaintiff a first A They call us up by phone and ask for the confirmation." (t.s.n., p. 247, June 19, 1959)
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 In this connection, we quote with approval what the trial Judge has said on this point:
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,
Why did the, using the words of witness Ernesto G. Cuento, "white man" have a "better right" to the seat
embarrassments and humiliations, thereby causing him mental anguish, serious anxiety, wounded feelings
occupied by Mr. Carrascoso? The record is silent. The defendant airline did not prove "any better", nay,
and social humiliation, resulting in moral damages. It is true that there is no specific mention of the term bad
any right on the part of the "white man" to the "First class" seat that the plaintiff was occupying and for
faith in the complaint. But, the inference of bad faith is there, it may be drawn from the facts and
which he paid and was issued a corresponding "first class" ticket.
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.
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
Quite apart from the foregoing is that (a) right the start of the trial, respondent's counsel placed petitioner on
not do so; the presumption is that evidence willfully suppressed would be adverse if produced [Sec. 69,
guard on what Carrascoso intended to prove: That while sitting in the plane in Bangkok, Carrascoso
par (e), Rules of Court]; and, under the circumstances, the Court is constrained to find, as it does find,
was ousted by petitioner's manager who gave his seat to a white man; 35 and (b) evidence of bad faith in the
that the Manager of the defendant airline in Bangkok not merely asked but threatened the plaintiff to
fulfillment of the contract was presented without objection on the part of the petitioner. It is, therefore,
throw him out of the plane if he did not give up his "first class" seat because the said Manager wanted to
unnecessary to inquire as to whether or not there is sufficient averment in the complaint to justify an award
accommodate, using the words of the witness Ernesto G. Cuento, the "white man".38
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:
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
That the plaintiff was forced out of his seat in the first class compartment of the plane belonging to the
not only prevented Carrascoso from enjoying his right to a first class seat; worse, he imposed his arbitrary
defendant Air France while at Bangkok, and was transferred to the tourist class not only without his consent
will; he forcibly ejected him from his seat, made him suffer the humiliation of having to go to the tourist
but against his will, has been sufficiently established by plaintiff in his testimony before the court,
class compartment - just to give way to another passenger whose right thereto has not been established.
corroborated by the corresponding entry made by the purser of the plane in his notebook which notation
Certainly, this is bad faith. Unless, of course, bad faith has assumed a meaning different from what is
reads as follows:
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
"First-class passenger was forced to go to the tourist class against his will, and that the captain refused
to intervene",
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:
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
The evidence shows that the defendant violated its contract of transportation with plaintiff in bad faith,
so. It is noteworthy that no one on behalf of defendant ever contradicted or denied this evidence for the
with the aggravating circumstances that defendant's Manager in Bangkok went to the extent of
plaintiff. It could have been easy for defendant to present its manager at Bangkok to testify at the trial of
threatening the plaintiff in the presence of many passengers to have him thrown out of the airplane to
the case, or yet to secure his disposition; but defendant did neither. 37
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
The Court of appeals further stated — 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
Neither is there evidence as to whether or not a prior reservation was made by the white man. Hence, if defendant to him.40
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 5. The responsibility of an employer for the tortious act of its employees need not be essayed. It is well settled
to be subjected to the humiliation and indignity of being ejected from his seat in the presence of others. in law. 41 For the willful malevolent act of petitioner's manager, petitioner, his employer, must answer. Article
Instead of explaining to the white man the improvidence committed by defendant's employees, the manager 21 of the Civil Code says:
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
 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.
TORTS –QUASI-DELICT AND CONTRACT
G.R. No. L-48930 February 23, 1944
ANTONIO VAZQUEZ, petitioner,
vs.
FRANCISCO DE BORJA, respondent.
x---------------------------------------------------------x
G.R. No. L-48931 February 23, 1944
FRANCISCO DE BORJA, petitioner,
vs.
ANTONIO VAZQUEZ, respondent.
OZAETA, J.:
This action was commenced in the Court of First Instance of Manila by Francisco de Borja against Antonio
Vazquez and Fernando Busuego to recover from them jointly and severally the total sum of P4,702.70 upon
three alleged causes of action, to wit: First, that in or about the month of January, 1932, the defendants
jointly and severally obligated themselves to sell to the plaintiff 4,000 cavans of palay at P2.10 per cavan, to
be delivered during the month of February, 1932, the said defendants having subsequently received from the
plaintiff in virtue of said agreement the sum of P8,400; that the defendants delivered to the plaintiff during
the months of February, March, and April, 1932, only 2,488 cavans of palay of the value of P5,224.80 and
refused to deliver the balance of 1,512 cavans of the value of P3,175.20 notwithstanding repeated demands.
Second, that because of defendants' refusal to deliver to the plaintiff the said 1,512 cavans of palay within
the period above mentioned, the plaintiff suffered damages in the sum of P1,000. And, third, that on account
of the agreement above mentioned the plaintiff delivered to the defendants 4,000 empty sacks, of which they
returned to the plaintiff only 2,490 and refused to deliver to the plaintiff the balance of 1,510 sacks or to pay
their value amounting to P377.50; and that on account of such refusal the plaintiff suffered damages in the
sum of P150.
The defendant Antonio Vazquez answered the complaint, denying having entered into the contract mentioned
in the first cause of action in his own individual and personal capacity, either solely or together with his
codefendant Fernando Busuego, and alleging that the agreement for the purchase of 4,000 cavans of palay
and the payment of the price of P8,400 were made by the plaintiff with and to the Natividad-Vasquez Sabani
Development Co., Inc., a corporation organized and existing under the laws of the Philippines, of which the
defendant Antonio Vazquez was the acting manager at the time the transaction took place. By way of
counterclaim, the said defendant alleged that he suffered damages in the sum of P1,000 on account of the
filing of this action against him by the plaintiff with full knowledge that the said defendant had nothing to do
whatever with any and all of the transactions mentioned in the complaint in his own individual and personal
capacity.
The trial court rendered judgment ordering the defendant Antonio Vazquez to pay to the plaintiff the sum of
P3,175.20 plus the sum of P377.50, with legal interest on both sums, and absolving the defendant Fernando
Busuego (treasurer of the corporation) from the complaint and the plaintiff from the defendant Antonio
Vazquez' counterclaim. Upon appeal to the Court of Appeals, the latter modified that judgment by reducing it
to the total sum of P3,314.78, with legal interest thereon and the costs. But by a subsequent resolution upon
the defendant's motion for reconsideration, the Court of Appeals set aside its judgment and ordered that the
case be remanded to the court of origin for further proceedings. The defendant Vazquez, not being agreeable
to that result, filed the present petition for certiorari (G.R. No. 48930) to review and reverse the judgment of
the Court of Appeals; and the plaintiff Francisco de Borja, excepting to the resolution of the Court of Appeals
whereby its original judgment was set aside and the case was ordered remanded to the court of origin for
further proceedings, filed a cross-petition for certiorari (G.R. No. 48931) to maintain the original judgment of
the Court of Appeals.
The original decision of the Court of Appeals and its subsequent resolutions on reconsideration read as follows:
Es hecho no controvertido que el 25 de Febrero de 1932, el demandado-apelante vendio al demandante 4,000 cavanes de palay al precio
de P2.10 el cavan, de los cuales, dicho demandante solamente recibio 2,583 cavanes; y que asimismo recibio para su envase 4,000 sacos
vacios. Esta provbado que de dichos 4,000 sacos vacios solamente se entregaron, 2,583 quedando en poder del demandado el resto, y
cuyo valor es el de P0.24 cada uno. Presentada la demanda contra los demandados Antonio Vazquez y Fernando Busuego para el pago
de la cantidad de P4,702.70, con sus intereses legales desde el 1.o de marzo de 1932 hasta su completo pago y las costas, el Juzgado de
Primera Instancia de Manila el asunto condenando a Antonio Vazquez a pagar al demandante la cantidad de P3,175.20, mas la cantidad
de P377.50, con sus intereses legales, absolviendo al demandado Fernando Busuego de la demanda y al demandante de la reconvencion
de los demandados, sin especial pronunciamiento en cuanto a las costas. De dicha decision apelo el demandado Antonio Vazquez, apuntado
como principal error el de que el habia sido condenado personalmente, y no la corporacion por el representada.
Segun la preponderancia de las pruebas, la venta hecha por Antonio Vazquez a favor de Francisco de Borja de los 4,000 cavanes de palay
fue en su capacidad de Presidente interino y Manager de la corporacion Natividad-Vazquez Sabani Development Co., Inc. Asi resulta del
Exh. 1, que es la copia al carbon del recibo otorgado por el demandado Vazquez, y cuyo original lo habia perdido el demandante, segun
el. Asi tambien consta en los libros de la corporacion arriba mencionada, puesto que en los mismos se ha asentado tanto la entrada de
los P8,400, precio del palay, como su envio al gobierno en pago de los alquileres de la Hacienda Sabani. Asi mismo lo admitio Francisco
de Borja al abogado Sr. Jacinto Tomacruz, posterior presidente de la corporacion sucesora en el arrendamiento de la Sabani Estate, cuando
el solicito sus buenos oficios para el cobro del precio del palay no entregado. Asi igualmente lo declaro el que hizo entrega de parte del
palay a Borja, Felipe Veneracion, cuyo testimonio no ha sido refutado. Y asi se deduce de la misma demanda, cuando se incluyo en ella a
Fernando Busuego, tesorero de la Natividad-Vazquez Sabani Development Co., Inc.
Siendo esto asi, la principal responsable debe ser la Natividad-Vazquez Sabani Development Co., Inc., que quedo insolvente y dejo de
existir. El Juez sentenciador declaro, sin embargo, al demandado Vazquez responsable del pago de la cantidad reclamada por su negligencia
al vender los referidos 4,000 cavanes de palay sin averiguar antes si o no dicha cantidad existia en las bodegas de la corporacion.
Resulta del Exh. 8 que despues de la venta de los 4,000 cavanes de palay a Francisco de Borja, el mismo demandado vendio a Kwong Ah
Phoy 1,500 cavanes al precio de P2.00 el cavan, y decimos 'despues' porque esta ultima venta aparece asentada despues de la primera.
Segun esto, el apelante no solamente obro con negligencia, sino interviniendo culpa de su parte, por lo que de acuerdo con los arts. 1102,
1103 y 1902 del Codigo Civil, el debe ser responsable subsidiariamente del pago de la cantidad objecto de la demanda.
En meritos de todo lo expuesto, se confirma la decision apelada con la modificacion de que el apelante debe pagar al apelado la suma de
P2,295.70 como valor de los 1,417 cavanes de palay que dejo de entregar al demandante, mas la suma de P339.08 como importe de los
1,417 sacos vacios, que dejo de devolver, a razon de P0.24 el saco, total P3,314.78, con sus intereses legales desde la interposicion de la
demanda y las costas de ambas instancias.
Vista la mocion de reconsideracion de nuestra decision de fecha 13 de Octubre de 1942, y alegandose en la misma que cuando el apelante
vendio los 1,500 cavanes de palay a Ah Phoy, la corporacion todavia tenia bastante existencia de dicho grano, y no estando dicho extremo
suficientemente discutido y probado, y pudiendo variar el resultado del asunto, dejamos sin efecto nuestra citada decision, y ordenamos
la devolucion de la causa al Juzgado de origen para que reciba pruebas al efecto y dicte despues la decision correspondiente.
Upon consideration of the motion of the attorney for the plaintiff-appellee in case CA-G.R. No.
8676, Francisco de Borja vs. Antonio Vasquez et al., praying, for the reasons therein given, that the
resolution of December 22, 1942, be reconsidered: Considering that said resolution remanding the case to
the lower court is for the benefit of the plaintiff-appellee to afford him opportunity to refute the contention
of the defendant-appellant Antonio Vazquez, motion denied.
The action is on a contract, and the only issue pleaded and tried is whether the plaintiff entered into the
contract with the defendant Antonio Vazquez in his personal capacity or as manager of the Natividad-Vazquez
Sabani Development Co., Inc. The Court of Appeals found that according to the preponderance of the evidence
"the sale made by Antonio Vazquez in favor of Francisco de Borja of 4,000 cavans of palay was in his capacity
as acting president and manager of the corporation Natividad-Vazquez Sabani Development Co., Inc." That
finding of fact is final and, it resolving the only issue involved, should be determinative of the result.
The Court of Appeals doubly erred in ordering that the cause be remanded to the court of origin for further
trial to determine whether the corporation had sufficient stock of palay at the time appellant sold, 1500 cavans
of palay to Kwong Ah Phoy. First, if that point was material to the issue, it should have been proven during
the trial; and the statement of the court that it had not been sufficiently discussed and proven was no
justification for ordering a new trial, which, by the way, neither party had solicited but against which, on the
contrary, both parties now vehemently protest. Second, the point is, in any event, beside the issue, and this
we shall now discuss in connection with the original judgment of the Court of Appeals which the plaintiff cross-
petitioner seeks to maintain.
The action being on a contract, and it appearing from the preponderance of the evidence that the party liable
on the contract is the Natividad-Vazquez Sabani Development Co., Inc. which is not a party herein, the
complaint should have been dismissed. Counsel for the plaintiff, in his brief as respondent, argues that altho
by the preponderance of the evidence the trial court and the Court of Appeals found that Vazquez celebrated
the contract in his capacity as acting president of the corporation and altho it was the latter, thru Vazquez,
with which the plaintiff had contracted and which, thru Vazquez, had received the sum of P8,400 from Borja,
and altho that was true from the point of view of a legal fiction, "ello no impede que tambien sea verdad lo
alegado en la demanda de que la misma persona de Vasquez fue la que contrato con Borja y que la misma
persona de Vasquez fue quien recibio la suma de P8,400." But such argument is invalid and insufficient to
show that the president of the corporation is personally liable on the contract duly and lawfully entered into
by him in its behalf.
It is well known that a corporation is an artificial being invested by law with a personality of its own, separate
and distinct from that of its stockholders and from that of its officers who manage and run its affairs. The
mere fact that its personality is owing to a legal fiction and that it necessarily has to act thru its agents, does
not make the latter personally liable on a contract duly entered into, or for an act lawfully performed, by them
for an in its behalf. The legal fiction by which the personality of a corporation is created is a practical reality
and necessity. Without it no corporate entities may exists and no corporate business may be transacted. Such
legal fiction may be disregarded only when an attempt is made to use it as a cloak to hide an unlawful or
fraudulent purpose. No such thing has been alleged or proven in this case. It has not been alleged nor even
intimated that Vazquez personally benefited by the contract of sale in question and that he is merely invoking
the legal fiction to avoid personal liability. Neither is it contended that he entered into said contract for the
corporation in bad faith and with intent to defraud the plaintiff. We find no legal and factual basis upon which
to hold him liable on the contract either principally or subsidiarily.
Vazquez principally or even subsidiarily liable for such negligence. Since it was the corporation's contract, its
nonfulfillment, whether due to negligence or fault or to any other cause, made the corporation and not its
agent liable.
On the other hand if independently of the contract Vazquez by his fault or negligence cause damaged to the
plaintiff, he would be liable to the latter under article 1902 of the Civil Code. But then the plaintiff's cause of
action should be based on culpa aquiliana and not on the contract alleged in his complaint herein; and
Vazquez' liability would be principal and not merely subsidiary, as the Court of Appeals has erroneously held.
No such cause of action was alleged in the complaint or tried by express or implied consent of the parties by
virtue of section 4 of Rule 17. Hence the trial court had no jurisdiction over the issue and could not adjudicate
upon it (Reyes vs. Diaz, G.R. No. 48754.) Consequently it was error for the Court of Appeals to remand the
case to the trial court to try and decide such issue.
It only remains for us to consider petitioner's second assignment of error referring to the lower courts' refusal
to entertain his counterclaim for damages against the respondent Borja arising from the bringing of this action.
The lower courts having sustained plaintiff's action. The finding of the Court of Appeals that according to the
preponderance of the evidence the defendant Vazquez celebrated the contract not in his personal capacity
but as acting president and manager of the corporation, does not warrant his contention that the suit against
him is malicious and tortious; and since we have to decide defendant's counterclaim upon the facts found by
the Court of Appeals, we find no sufficient basis upon which to sustain said counterclaim. Indeed, we feel that
a a matter of moral justice we ought to state here that the indignant attitude adopted by the defendant
towards the plaintiff for having brought this action against him is in our estimation not wholly right. Altho from
the legal point of view he was not personally liable for the fulfillment of the contract entered into by him on
behalf of the corporation of which he was the acting president and manager, we think it was his moral duty
towards the party with whom he contracted in said capacity to see to it that the corporation represented by
him fulfilled the contract by delivering the palay it had sold, the price of which it had already received. Recreant
to such duty as a moral person, he has no legitimate cause for indignation. We feel that under the
circumstances he not only has no cause of action against the plaintiff for damages but is not even entitled to
costs.
The judgment of the Court of Appeals is reversed, and the complaint is hereby dismissed, without any finding
as to costs.

The trial court found him guilty of negligence in the performance of the contract and held him personally liable
on that account. On the other hand, the Court of Appeals found that he "no solamente obro con negligencia,
sino interveniendo culpa de su parte, por lo que de acuerdo con los arts. 1102, 1103 y 1902 del Codigo Civil,
el debe ser responsable subsidiariamente del pago de la cantidad objeto de la demanda." We think both the
trial court and the Court of Appeals erred in law in so holding. They have manifestly failed to distinguish a
contractual from an extracontractual obligation, or an obligation arising from contract from an obligation
arising from culpa aquiliana. The fault and negligence referred to in articles 1101-1104 of the Civil Code are
those incidental to the fulfillment or nonfullfillment of a contractual obligation; while the fault or negligence
referred to in article 1902 is the culpa aquiliana of the civil law, homologous but not identical to tort of the
common law, which gives rise to an obligation independently of any contract. (Cf. Manila R.R. Co. vs. Cia.
Trasatlantica, 38 Phil., 875, 887-890; Cangco vs. Manila R.R. Co., 38 Phil. 768.) The fact that the corporation,
acting thru Vazquez as its manager, was guilty of negligence in the fulfillment of the contract, did not make
TORTS –QUASI-DELICT AND CONTRACT
G.R. No. 188288 January 16, 2012
SPOUSES FERNANDO and LOURDES VILORIA, Petitioners,
vs.
CONTINENTAL AIRLINES, INC.,
DECISION
REYES, J.:
This is a petition for review under Rule 45 of the Rules of Court from the January 30, 2009 Decision 1 of the
Special Thirteenth Division of the Court of Appeals (CA) in CA-G.R. CV No. 88586 entitled "Spouses Fernando
and Lourdes Viloria v. Continental Airlines, Inc.," the dispositive portion of which states:
WHEREFORE, the Decision of the Regional Trial Court, Branch 74, dated 03 April 2006, awarding US$800.00
or its peso equivalent at the time of payment, plus legal rate of interest from 21 July 1997 until fully paid,
[₱]100,000.00 as moral damages, [₱]50,000.00 as exemplary damages, [₱]40,000.00 as attorney’s fees and
costs of suit to plaintiffs-appellees is hereby REVERSED and SET ASIDE.
Defendant-appellant’s counterclaim is DENIED.
Costs against plaintiffs-appellees.
SO ORDERED.2
On April 3, 2006, the Regional Trial Court of Antipolo City, Branch 74 (RTC) rendered a Decision, giving due
course to the complaint for sum of money and damages filed by petitioners Fernando Viloria (Fernando) and
Lourdes Viloria (Lourdes), collectively called Spouses Viloria, against respondent Continental Airlines, Inc.
(CAI). As culled from the records, below are the facts giving rise to such complaint.
On or about July 21, 1997 and while in the United States, Fernando purchased for himself and his wife,
Lourdes, two (2) round trip airline tickets from San Diego, California to Newark, New Jersey on board
Continental Airlines. Fernando purchased the tickets at US$400.00 each from a travel agency called "Holiday
Travel" and was attended to by a certain Margaret Mager (Mager). According to Spouses Viloria, Fernando
agreed to buy the said tickets after Mager informed them that there were no available seats at Amtrak, an
intercity passenger train service provider in the United States. Per the tickets, Spouses Viloria were scheduled
to leave for Newark on August 13, 1997 and return to San Diego on August 21, 1997.
Subsequently, Fernando requested Mager to reschedule their flight to Newark to an earlier date or August 6,
1997. Mager informed him that flights to Newark via Continental Airlines were already fully booked and offered
the alternative of a round trip flight via Frontier Air. Since flying with Frontier Air called for a higher fare of
US$526.00 per passenger and would mean traveling by night, Fernando opted to request for a refund. Mager,
however, denied his request as the subject tickets are non-refundable and the only option that Continental
Airlines can offer is the re-issuance of new tickets within one (1) year from the date the subject tickets were
issued. Fernando decided to reserve two (2) seats with Frontier Air.
As he was having second thoughts on traveling via Frontier Air, Fernando went to the Greyhound Station
where he saw an Amtrak station nearby. Fernando made inquiries and was told that there are seats available
and he can travel on Amtrak anytime and any day he pleased. Fernando then purchased two (2) tickets for
Washington, D.C.
From Amtrak, Fernando went to Holiday Travel and confronted Mager with the Amtrak tickets, telling her that
she had misled them into buying the Continental Airlines tickets by misrepresenting that Amtrak was already
fully booked. Fernando reiterated his demand for a refund but Mager was firm in her position that the subject
tickets are non-refundable.
Upon returning to the Philippines, Fernando sent a letter to CAI on February 11, 1998, demanding a refund
and alleging that Mager had deluded them into purchasing the subject tickets.3
In a letter dated February 24, 1998, Continental Micronesia informed Fernando that his complaint had been
referred to the Customer Refund Services of Continental Airlines at Houston, Texas.4
In a letter dated March 24, 1998, Continental Micronesia denied Fernando’s request for a refund and advised
him that he may take the subject tickets to any Continental ticketing location for the re-issuance of new tickets
within two (2) years from the date they were issued. Continental Micronesia informed Fernando that the
subject tickets may be used as a form of payment for the purchase of another Continental ticket, albeit with
a re-issuance fee.5
On June 17, 1999, Fernando went to Continental’s ticketing office at Ayala Avenue, Makati City to have the
subject tickets replaced by a single round trip ticket to Los Angeles, California under his name. Therein,
Fernando was informed that Lourdes’ ticket was non-transferable, thus, cannot be used for the purchase of a
ticket in his favor. He was also informed that a round trip ticket to Los Angeles was US$1,867.40 so he would
have to pay what will not be covered by the value of his San Diego to Newark round trip ticket.
In a letter dated June 21, 1999, Fernando demanded for the refund of the subject tickets as he no longer
wished to have them replaced. In addition to the dubious circumstances under which the subject tickets were
issued, Fernando claimed that CAI’s act of charging him with US$1,867.40 for a round trip ticket to Los
Angeles, which other airlines priced at US$856.00, and refusal to allow him to use Lourdes’ ticket, breached
its undertaking under its March 24, 1998 letter.6
On September 8, 2000, Spouses Viloria filed a complaint against CAI, praying that CAI be ordered to refund
the money they used in the purchase of the subject tickets with legal interest from July 21, 1997 and to pay
₱1,000,000.00 as moral damages, ₱500,000.00 as exemplary damages and ₱250,000.00 as attorney’s fees.7
CAI interposed the following defenses: (a) Spouses Viloria have no right to ask for a refund as the subject
tickets are non-refundable; (b) Fernando cannot insist on using the ticket in Lourdes’ name for the purchase
of a round trip ticket to Los Angeles since the same is non-transferable; (c) as Mager is not a CAI employee,
CAI is not liable for any of her acts; (d) CAI, its employees and agents did not act in bad faith as to entitle
Spouses Viloria to moral and exemplary damages and attorney’s fees. CAI also invoked the following clause
printed on the subject tickets:
3. To the extent not in conflict with the foregoing carriage and other services performed by each carrier are
subject to: (i) provisions contained in this ticket, (ii) applicable tariffs, (iii) carrier’s conditions of carriage and
related regulations which are made part hereof (and are available on application at the offices of carrier),
except in transportation between a place in the United States or Canada and any place outside thereof to
which tariffs in force in those countries apply.8
According to CAI, one of the conditions attached to their contract of carriage is the non-transferability and
non-refundability of the subject tickets.
The RTC’s Ruling
Following a full-blown trial, the RTC rendered its April 3, 2006 Decision, holding that Spouses Viloria are
entitled to a refund in view of Mager’s misrepresentation in obtaining their consent in the purchase of the
subject tickets.9 The relevant portion of the April 3, 2006 Decision states:
Continental Airlines agent Ms. Mager was in bad faith when she was less candid and diligent in presenting to
plaintiffs spouses their booking options. Plaintiff Fernando clearly wanted to travel via AMTRAK, but
defendant’s agent misled him into purchasing Continental Airlines tickets instead on the fraudulent
misrepresentation that Amtrak was fully booked. In fact, defendant Airline did not specifically denied (sic) this
allegation.
Plainly, plaintiffs spouses, particularly plaintiff Fernando, were tricked into buying Continental Airline tickets
on Ms. Mager’s misleading misrepresentations. Continental Airlines agent Ms. Mager further relied on and
exploited plaintiff Fernando’s need and told him that they must book a flight immediately or risk not being
able to travel at all on the couple’s preferred date. Unfortunately, plaintiffs spouses fell prey to the airline’s
and its agent’s unethical tactics for baiting trusting customers."10
Citing Articles 1868 and 1869 of the Civil Code, the RTC ruled that Mager is CAI’s agent, hence, bound by her
bad faith and misrepresentation. As far as the RTC is concerned, there is no issue as to whether Mager was
CAI’s agent in view of CAI’s implied recognition of her status as such in its March 24, 1998 letter.
The act of a travel agent or agency being involved here, the following are the pertinent New Civil Code
provisions on agency:
Art. 1868. By the contract of agency a person binds himself to render some service or to do something in
representation or on behalf of another, with the consent or authority of the latter.
Art. 1869. Agency may be express, or implied from the acts of the principal, from his silence or lack of action,
or his failure to repudiate the agency, knowing that another person is acting on his behalf without authority.
Agency may be oral, unless the law requires a specific form.
As its very name implies, a travel agency binds itself to render some service or to do something in
representation or on behalf of another, with the consent or authority of the latter. This court takes judicial
notice of the common services rendered by travel agencies that represent themselves as such, specifically the
reservation and booking of local and foreign tours as well as the issuance of airline tickets for a commission
or fee.
The services rendered by Ms. Mager of Holiday Travel agency to the plaintiff spouses on July 21, 1997 were
no different from those offered in any other travel agency. Defendant airline impliedly if not expressly
acknowledged its principal-agent relationship with Ms. Mager by its offer in the letter dated March 24, 1998 –
an obvious attempt to assuage plaintiffs spouses’ hurt feelings.11
Furthermore, the RTC ruled that CAI acted in bad faith in reneging on its undertaking to replace the subject
tickets within two (2) years from their date of issue when it charged Fernando with the amount of US$1,867.40
for a round trip ticket to Los Angeles and when it refused to allow Fernando to use Lourdes’ ticket. Specifically:
Tickets may be reissued for up to two years from the original date of issue. When defendant airline still
charged plaintiffs spouses US$1,867.40 or more than double the then going rate of US$856.00 for the unused
tickets when the same were presented within two (2) years from date of issue, defendant airline exhibited
callous treatment of passengers.12
The Appellate Court’s Ruling
On appeal, the CA reversed the RTC’s April 3, 2006 Decision, holding that CAI cannot be held liable for Mager’s
act in the absence of any proof that a principal-agent relationship existed between CAI and Holiday Travel.
According to the CA, Spouses Viloria, who have the burden of proof to establish the fact of agency, failed to
present evidence demonstrating that Holiday Travel is CAI’s agent. Furthermore, contrary to Spouses Viloria’s
claim, the contractual relationship between Holiday Travel and CAI is not an agency but that of a sale.
Plaintiffs-appellees assert that Mager was a sub-agent of Holiday Travel who was in turn a ticketing agent of
Holiday Travel who was in turn a ticketing agent of Continental Airlines. Proceeding from this premise, they
contend that Continental Airlines should be held liable for the acts of Mager. The trial court held the same
view.
We do not agree. By the contract of agency, a person binds him/herself to render some service or to do
something in representation or on behalf of another, with the consent or authority of the latter. The elements
of agency are: (1) consent, express or implied, of the parties to establish the relationship; (2) the object is
the execution of a juridical act in relation to a third person; (3) the agent acts as a representative and not for
him/herself; and (4) the agent acts within the scope of his/her authority. As the basis of agency is
representation, there must be, on the part of the principal, an actual intention to appoint, an intention naturally
inferable from the principal’s words or actions. In the same manner, there must be an intention on the part
of the agent to accept the appointment and act upon it. Absent such mutual intent, there is generally no
agency. It is likewise a settled rule that persons dealing with an assumed agent are bound at their peril, if
they would hold the principal liable, to ascertain not only the fact of agency but also the nature and extent of
authority, and in case either is controverted, the burden of proof is upon them to establish it. Agency is never
presumed, neither is it created by the mere use of the word in a trade or business name. We have perused
the evidence and documents so far presented. We find nothing except bare allegations of plaintiffs-appellees
that Mager/Holiday Travel was acting in behalf of Continental Airlines. From all sides of legal prism, the
transaction in issue was simply a contract of sale, wherein Holiday Travel buys airline tickets from Continental
Airlines and then, through its employees, Mager included, sells it at a premium to clients.13
The CA also ruled that refund is not available to Spouses Viloria as the word "non-refundable" was clearly
printed on the face of the subject tickets, which constitute their contract with CAI. Therefore, the grant of
their prayer for a refund would violate the proscription against impairment of contracts.
Finally, the CA held that CAI did not act in bad faith when they charged Spouses Viloria with the higher amount
of US$1,867.40 for a round trip ticket to Los Angeles. According to the CA, there is no compulsion for CAI to
charge the lower amount of US$856.00, which Spouses Viloria claim to be the fee charged by other airlines.
The matter of fixing the prices for its services is CAI’s prerogative, which Spouses Viloria cannot intervene. In
particular:
It is within the respective rights of persons owning and/or operating business entities to peg the premium of
the services and items which they provide at a price which they deem fit, no matter how expensive or
exhorbitant said price may seem vis-à-vis those of the competing companies. The Spouses Viloria may not
intervene with the business judgment of Continental Airlines.14
The Petitioners’ Case
In this Petition, this Court is being asked to review the findings and conclusions of the CA, as the latter’s
reversal of the RTC’s April 3, 2006 Decision allegedly lacks factual and legal bases. Spouses Viloria claim that
CAI acted in bad faith when it required them to pay a higher amount for a round trip ticket to Los Angeles
considering CAI’s undertaking to re-issue new tickets to them within the period stated in their March 24, 1998
letter. CAI likewise acted in bad faith when it disallowed Fernando to use Lourdes’ ticket to purchase a round
trip to Los Angeles given that there is nothing in Lourdes’ ticket indicating that it is non-transferable. As a
common carrier, it is CAI’s duty to inform its passengers of the terms and conditions of their contract and
passengers cannot be bound by such terms and conditions which they are not made aware of. Also, the
subject contract of carriage is a contract of adhesion; therefore, any ambiguities should be construed against
CAI. Notably, the petitioners are no longer questioning the validity of the subject contracts and limited its
claim for a refund on CAI’s alleged breach of its undertaking in its March 24, 1998 letter.
The Respondent’s Case
In its Comment, CAI claimed that Spouses Viloria’s allegation of bad faith is negated by its willingness to issue
new tickets to them and to credit the value of the subject tickets against the value of the new ticket Fernando
requested. CAI argued that Spouses Viloria’s sole basis to claim that the price at which CAI was willing to issue
the new tickets is unconscionable is a piece of hearsay evidence – an advertisement appearing on a newspaper
stating that airfares from Manila to Los Angeles or San Francisco cost US$818.00. 15 Also, the advertisement
pertains to airfares in September 2000 and not to airfares prevailing in June 1999, the time when Fernando
asked CAI to apply the value of the subject tickets for the purchase of a new one. 16 CAI likewise argued that
it did not undertake to protect Spouses Viloria from any changes or fluctuations in the prices of airline tickets
and its only obligation was to apply the value of the subject tickets to the purchase of the newly issued tickets.
With respect to Spouses Viloria’s claim that they are not aware of CAI’s restrictions on the subject tickets and
that the terms and conditions that are printed on them are ambiguous, CAI denies any ambiguity and alleged
that its representative informed Fernando that the subject tickets are non-transferable when he applied for
the issuance of a new ticket. On the other hand, the word "non-refundable" clearly appears on the face of the
subject tickets.
CAI also denies that it is bound by the acts of Holiday Travel and Mager and that no principal-agency
relationship exists between them. As an independent contractor, Holiday Travel was without capacity to bind
CAI.
Issues
To determine the propriety of disturbing the CA’s January 30, 2009 Decision and whether Spouses Viloria have
the right to the reliefs they prayed for, this Court deems it necessary to resolve the following issues:
a. Does a principal-agent relationship exist between CAI and Holiday Travel?
b. Assuming that an agency relationship exists between CAI and Holiday Travel, is CAI bound by the
acts of Holiday Travel’s agents and employees such as Mager?
c. Assuming that CAI is bound by the acts of Holiday Travel’s agents and employees, can the
representation of Mager as to unavailability of seats at Amtrak be considered fraudulent as to vitiate
the consent of Spouse Viloria in the purchase of the subject tickets?
d. Is CAI justified in insisting that the subject tickets are non-transferable and non-refundable?
e. Is CAI justified in pegging a different price for the round trip ticket to Los Angeles requested by
Fernando?
f. Alternatively, did CAI act in bad faith or renege its obligation to Spouses Viloria to apply the value
of the subject tickets in the purchase of new ones when it refused to allow Fernando to use Lourdes’
ticket and in charging a higher price for a round trip ticket to Los Angeles?
This Court’s Ruling
I. A principal-agent relationship exists between CAI and Holiday Travel.
With respect to the first issue, which is a question of fact that would require this Court to review and re-
examine the evidence presented by the parties below, this Court takes exception to the general rule that the
CA’s findings of fact are conclusive upon Us and our jurisdiction is limited to the review of questions of law. It
is well-settled to the point of being axiomatic that this Court is authorized to resolve questions of fact if
confronted with contrasting factual findings of the trial court and appellate court and if the findings of the CA
are contradicted by the evidence on record.17
According to the CA, agency is never presumed and that he who alleges that it exists has the burden of proof.
Spouses Viloria, on whose shoulders such burden rests, presented evidence that fell short of indubitably
demonstrating the existence of such agency.
We disagree. The CA failed to consider undisputed facts, discrediting CAI’s denial that Holiday Travel is one
of its agents. Furthermore, in erroneously characterizing the contractual relationship between CAI and Holiday
Travel as a contract of sale, the CA failed to apply the fundamental civil law principles governing agency and
differentiating it from sale.
In Rallos v. Felix Go Chan & Sons Realty Corporation,18 this Court explained the nature of an agency and
spelled out the essential elements thereof:
Out of the above given principles, sprung the creation and acceptance of the relationship of agencywhereby
one party, called the principal (mandante), authorizes another, called the agent (mandatario), to act for and
in his behalf in transactions with third persons. The essential elements of agency are: (1) there is consent,
express or implied of the parties to establish the relationship; (2) the object is the execution of a juridical act
in relation to a third person; (3) the agent acts as a representative and not for himself, and (4) the agent acts
within the scope of his authority.1avvphi1
Agency is basically personal, representative, and derivative in nature. The authority of the agent to act
emanates from the powers granted to him by his principal; his act is the act of the principal if done within the
scope of the authority. Qui facit per alium facit se. "He who acts through another acts himself."19
Contrary to the findings of the CA, all the elements of an agency exist in this case. The first and second
elements are present as CAI does not deny that it concluded an agreement with Holiday Travel, whereby
Holiday Travel would enter into contracts of carriage with third persons on CAI’s behalf. The third element is
also present as it is undisputed that Holiday Travel merely acted in a representative capacity and it is CAI and
not Holiday Travel who is bound by the contracts of carriage entered into by Holiday Travel on its behalf. The
fourth element is also present considering that CAI has not made any allegation that Holiday Travel exceeded
the authority that was granted to it. In fact, CAI consistently maintains the validity of the contracts of carriage
that Holiday Travel executed with Spouses Viloria and that Mager was not guilty of any fraudulent
misrepresentation. That CAI admits the authority of Holiday Travel to enter into contracts of carriage on its
behalf is easily discernible from its February 24, 1998 and March 24, 1998 letters, where it impliedly recognized
the validity of the contracts entered into by Holiday Travel with Spouses Viloria. When Fernando informed CAI
that it was Holiday Travel who issued to them the subject tickets, CAI did not deny that Holiday Travel is its
authorized agent.
Prior to Spouses Viloria’s filing of a complaint against it, CAI never refuted that it gave Holiday Travel the
power and authority to conclude contracts of carriage on its behalf. As clearly extant from the records, CAI
recognized the validity of the contracts of carriage that Holiday Travel entered into with Spouses Viloria and
considered itself bound with Spouses Viloria by the terms and conditions thereof; and this constitutes an
unequivocal testament to Holiday Travel’s authority to act as its agent. This Court cannot therefore allow CAI
to take an altogether different position and deny that Holiday Travel is its agent without condoning or giving
imprimatur to whatever damage or prejudice that may result from such denial or retraction to Spouses Viloria,
who relied on good faith on CAI’s acts in recognition of Holiday Travel’s authority. Estoppel is primarily based
on the doctrine of good faith and the avoidance of harm that will befall an innocent party due to its injurious
reliance, the failure to apply it in this case would result in gross travesty of justice.20 Estoppel bars CAI from
making such denial.
As categorically provided under Article 1869 of the Civil Code, "[a]gency may be express, or implied from the
acts of the principal, from his silence or lack of action, or his failure to repudiate the agency, knowing that
another person is acting on his behalf without authority."
Considering that the fundamental hallmarks of an agency are present, this Court finds it rather peculiar that
the CA had branded the contractual relationship between CAI and Holiday Travel as one of sale. The
distinctions between a sale and an agency are not difficult to discern and this Court, as early as 1970, had
already formulated the guidelines that would aid in differentiating the two (2) contracts. In Commissioner of
Internal Revenue v. Constantino,21 this Court extrapolated that the primordial differentiating consideration
between the two (2) contracts is the transfer of ownership or title over the property subject of the contract.
In an agency, the principal retains ownership and control over the property and the agent merely acts on the
principal’s behalf and under his instructions in furtherance of the objectives for which the agency was
established. On the other hand, the contract is clearly a sale if the parties intended that the delivery of the
property will effect a relinquishment of title, control and ownership in such a way that the recipient may do
with the property as he pleases.
Since the company retained ownership of the goods, even as it delivered possession unto the dealer for resale
to customers, the price and terms of which were subject to the company's control, the relationship between
the company and the dealer is one of agency, tested under the following criterion:
"The difficulty in distinguishing between contracts of sale and the creation of an agency to sell has led to the
establishment of rules by the application of which this difficulty may be solved. The decisions say the transfer
of title or agreement to transfer it for a price paid or promised is the essence of sale. If such transfer puts the
transferee in the attitude or position of an owner and makes him liable to the transferor as a debtor for the
agreed price, and not merely as an agent who must account for the proceeds of a resale, the transaction is a
sale; while the essence of an agency to sell is the delivery to an agent, not as his property, but as the property
of the principal, who remains the owner and has the right to control sales, fix the price, and terms, demand
and receive the proceeds less the agent's commission upon sales made. 1 Mechem on Sales, Sec. 43; 1
Mechem on Agency, Sec. 48; Williston on Sales, 1; Tiedeman on Sales, 1." (Salisbury v. Brooks, 94 SE 117,
118-119)22
As to how the CA have arrived at the conclusion that the contract between CAI and Holiday Travel is a sale is
certainly confounding, considering that CAI is the one bound by the contracts of carriage embodied by the
tickets being sold by Holiday Travel on its behalf. It is undisputed that CAI and not Holiday Travel who is the
party to the contracts of carriage executed by Holiday Travel with third persons who desire to travel via
Continental Airlines, and this conclusively indicates the existence of a principal-agent relationship. That the
principal is bound by all the obligations contracted by the agent within the scope of the authority granted to
him is clearly provided under Article 1910 of the Civil Code and this constitutes the very notion of agency.
II. In actions based on quasi-delict, a principal can only be held liable for the tort committed by
its agent’s employees if it has been established by preponderance of evidence that the principal
was also at fault or negligent or that the principal exercise control and supervision over them.
Considering that Holiday Travel is CAI’s agent, does it necessarily follow that CAI is liable for the fault or
negligence of Holiday Travel’s employees? Citing China Air Lines, Ltd. v. Court of Appeals, et al.,23CAI argues
that it cannot be held liable for the actions of the employee of its ticketing agent in the absence of an employer-
employee relationship.
An examination of this Court’s pronouncements in China Air Lines will reveal that an airline company is not
completely exonerated from any liability for the tort committed by its agent’s employees. A prior determination
of the nature of the passenger’s cause of action is necessary. If the passenger’s cause of action against the
airline company is premised on culpa aquiliana or quasi-delict for a tort committed by the employee of the
airline company’s agent, there must be an independent showing that the airline company was at fault or
negligent or has contributed to the negligence or tortuous conduct committed by the employee of its agent.
The mere fact that the employee of the airline company’s agent has committed a tort is not sufficient to hold
the airline company liable. There is no vinculum juris between the airline company and its agent’s employees
and the contractual relationship between the airline company and its agent does not operate to create a
juridical tie between the airline company and its agent’s employees. Article 2180 of the Civil Code does not
make the principal vicariously liable for the tort committed by its agent’s employees and the principal-agency
relationship per se does not make the principal a party to such tort; hence, the need to prove the principal’s
own fault or negligence.
On the other hand, if the passenger’s cause of action for damages against the airline company is based on
contractual breach or culpa contractual, it is not necessary that there be evidence of the airline company’s
fault or negligence. As this Court previously stated in China Air Lines and reiterated in Air France vs.
Gillego,24 "in an action based on a breach of contract of carriage, the aggrieved party does not have to prove
that the common carrier was at fault or was negligent. All that he has to prove is the existence of the contract
and the fact of its non-performance by the carrier."
Spouses Viloria’s cause of action on the basis of Mager’s alleged fraudulent misrepresentation is clearly one
of tort or quasi-delict, there being no pre-existing contractual relationship between them. Therefore, it was
incumbent upon Spouses Viloria to prove that CAI was equally at fault.
However, the records are devoid of any evidence by which CAI’s alleged liability can be substantiated. Apart
from their claim that CAI must be held liable for Mager’s supposed fraud because Holiday Travel is CAI’s agent,
Spouses Viloria did not present evidence that CAI was a party or had contributed to Mager’s complained act
either by instructing or authorizing Holiday Travel and Mager to issue the said misrepresentation.
It may seem unjust at first glance that CAI would consider Spouses Viloria bound by the terms and conditions
of the subject contracts, which Mager entered into with them on CAI’s behalf, in order to deny Spouses Viloria’s
request for a refund or Fernando’s use of Lourdes’ ticket for the re-issuance of a new one, and simultaneously
claim that they are not bound by Mager’s supposed misrepresentation for purposes of avoiding Spouses
Viloria’s claim for damages and maintaining the validity of the subject contracts. It may likewise be argued
that CAI cannot deny liability as it benefited from Mager’s acts, which were performed in compliance with
Holiday Travel’s obligations as CAI’s agent.
However, a person’s vicarious liability is anchored on his possession of control, whether absolute or limited,
on the tortfeasor. Without such control, there is nothing which could justify extending the liability to a person
other than the one who committed the tort. As this Court explained in Cangco v. Manila Railroad Co.:25
With respect to extra-contractual obligation arising from negligence, whether of act or omission,
it is competent for the legislature to elect — and our Legislature has so elected — to limit such liability to
cases in which the person upon whom such an obligation is imposed is morally culpable or, on the contrary, for
reasons of public policy, to extend that liability, without regard to the lack of moral culpability,
so as to include responsibility for the negligence of those persons whose acts or omissions are
imputable, by a legal fiction, to others who are in a position to exercise an absolute or limited
control over them. The legislature which adopted our Civil Code has elected to limit extra-contractual liability
— with certain well-defined exceptions — to cases in which moral culpability can be directly imputed to the
persons to be charged. This moral responsibility may consist in having failed to exercise due care in one's own
acts, or in having failed to exercise due care in the selection and control of one's agent or servants, or in the
control of persons who, by reasons of their status, occupy a position of dependency with respect to the person
made liable for their conduct.26(emphasis supplied)
It is incumbent upon Spouses Viloria to prove that CAI exercised control or supervision over Mager by
preponderant evidence. The existence of control or supervision cannot be presumed and CAI is under no
obligation to prove its denial or nugatory assertion. Citing Belen v. Belen,27 this Court ruled in Jayme v.
Apostol,28 that:
In Belen v. Belen, this Court ruled that it was enough for defendant to deny an alleged employment
relationship. The defendant is under no obligation to prove the negative averment. This Court said:
"It is an old and well-settled rule of the courts that the burden of proving the action is upon the plaintiff, and
that if he fails satisfactorily to show the facts upon which he bases his claim, the defendant is under no
obligation to prove his exceptions. This [rule] is in harmony with the provisions of Section 297 of the Code of
Civil Procedure holding that each party must prove his own affirmative allegations, etc."29 (citations omitted)
Therefore, without a modicum of evidence that CAI exercised control over Holiday Travel’s employees or that
CAI was equally at fault, no liability can be imposed on CAI for Mager’s supposed misrepresentation.
III. Even on the assumption that CAI may be held liable for the acts of Mager, still, Spouses
Viloria are not entitled to a refund. Mager’s statement cannot be considered a causal fraud that
would justify the annulment of the subject contracts that would oblige CAI to indemnify Spouses
Viloria and return the money they paid for the subject tickets.
Article 1390, in relation to Article 1391 of the Civil Code, provides that if the consent of the contracting parties
was obtained through fraud, the contract is considered voidable and may be annulled within four (4) years
from the time of the discovery of the fraud. Once a contract is annulled, the parties are obliged under Article
1398 of the same Code to restore to each other the things subject matter of the contract, including their fruits
and interest.
On the basis of the foregoing and given the allegation of Spouses Viloria that Fernando’s consent to the subject
contracts was supposedly secured by Mager through fraudulent means, it is plainly apparent that their demand
for a refund is tantamount to seeking for an annulment of the subject contracts on the ground of vitiated
consent.
Whether the subject contracts are annullable, this Court is required to determine whether Mager’s alleged
misrepresentation constitutes causal fraud. Similar to the dispute on the existence of an agency, whether
fraud attended the execution of a contract is factual in nature and this Court, as discussed above, may
scrutinize the records if the findings of the CA are contrary to those of the RTC.
Under Article 1338 of the Civil Code, there is fraud when, through insidious words or machinations of one of
the contracting parties, the other is induced to enter into a contract which, without them, he would not have
agreed to. In order that fraud may vitiate consent, it must be the causal (dolo causante), not merely the
incidental (dolo incidente), inducement to the making of the contract.30 In Samson v. Court of Appeals,31 causal
fraud was defined as "a deception employed by one party prior to or simultaneous to the contract in order to
secure the consent of the other."32
Also, fraud must be serious and its existence must be established by clear and convincing evidence. As ruled
by this Court in Sierra v. Hon. Court of Appeals, et al.,33 mere preponderance of evidence is not adequate:
Fraud must also be discounted, for according to the Civil Code:
Art. 1338. There is fraud when, through insidious words or machinations of one of the contracting parties, the
other is induced to enter into a contract which without them, he would not have agreed to.
Art. 1344. In order that fraud may make a contract voidable, it should be serious and should not have been
employed by both contracting parties.
To quote Tolentino again, the "misrepresentation constituting the fraud must be established by full, clear, and
convincing evidence, and not merely by a preponderance thereof. The deceit must be serious. The fraud is
serious when it is sufficient to impress, or to lead an ordinarily prudent person into error; that which cannot
deceive a prudent person cannot be a ground for nullity. The circumstances of each case should be considered,
taking into account the personal conditions of the victim."34
After meticulously poring over the records, this Court finds that the fraud alleged by Spouses Viloria has not
been satisfactorily established as causal in nature to warrant the annulment of the subject contracts. In fact,
Spouses Viloria failed to prove by clear and convincing evidence that Mager’s statement was fraudulent.
Specifically, Spouses Viloria failed to prove that (a) there were indeed available seats at Amtrak for a trip to
New Jersey on August 13, 1997 at the time they spoke with Mager on July 21, 1997; (b) Mager knew about
this; and (c) that she purposely informed them otherwise.
This Court finds the only proof of Mager’s alleged fraud, which is Fernando’s testimony that an Amtrak had
assured him of the perennial availability of seats at Amtrak, to be wanting. As CAI correctly pointed out and
as Fernando admitted, it was possible that during the intervening period of three (3) weeks from the time
Fernando purchased the subject tickets to the time he talked to said Amtrak employee, other passengers may
have cancelled their bookings and reservations with Amtrak, making it possible for Amtrak to accommodate
them. Indeed, the existence of fraud cannot be proved by mere speculations and conjectures. Fraud is never
lightly inferred; it is good faith that is. Under the Rules of Court, it is presumed that "a person is innocent of
crime or wrong" and that "private transactions have been fair and regular."35 Spouses Viloria failed to overcome
this presumption.
IV. Assuming the contrary, Spouses Viloria are nevertheless deemed to have ratified the subject
contracts.
Even assuming that Mager’s representation is causal fraud, the subject contracts have been impliedly ratified
when Spouses Viloria decided to exercise their right to use the subject tickets for the purchase of new ones.
Under Article 1392 of the Civil Code, "ratification extinguishes the action to annul a voidable contract."
Ratification of a voidable contract is defined under Article 1393 of the Civil Code as follows:
Art. 1393. Ratification may be effected expressly or tacitly. It is understood that there is a tacit ratification if,
with knowledge of the reason which renders the contract voidable and such reason having ceased, the person
who has a right to invoke it should execute an act which necessarily implies an intention to waive his right.
Implied ratification may take diverse forms, such as by silence or acquiescence; by acts showing approval or
adoption of the contract; or by acceptance and retention of benefits flowing therefrom.36
Simultaneous with their demand for a refund on the ground of Fernando’s vitiated consent, Spouses Viloria
likewise asked for a refund based on CAI’s supposed bad faith in reneging on its undertaking to replace the
subject tickets with a round trip ticket from Manila to Los Angeles.
In doing so, Spouses Viloria are actually asking for a rescission of the subject contracts based on contractual
breach. Resolution, the action referred to in Article 1191, is based on the defendant’s breach of faith, a
violation of the reciprocity between the parties37 and in Solar Harvest, Inc. v. Davao Corrugated Carton
Corporation,38 this Court ruled that a claim for a reimbursement in view of the other party’s failure to comply
with his obligations under the contract is one for rescission or resolution.
However, annulment under Article 1390 of the Civil Code and rescission under Article 1191 are two (2)
inconsistent remedies. In resolution, all the elements to make the contract valid are present; in annulment,
one of the essential elements to a formation of a contract, which is consent, is absent. In resolution, the defect
is in the consummation stage of the contract when the parties are in the process of performing their respective
obligations; in annulment, the defect is already present at the time of the negotiation and perfection stages
of the contract. Accordingly, by pursuing the remedy of rescission under Article 1191, the Vilorias had impliedly
admitted the validity of the subject contracts, forfeiting their right to demand their annulment. A party cannot
rely on the contract and claim rights or obligations under it and at the same time impugn its existence or
validity. Indeed, litigants are enjoined from taking inconsistent positions.39
V. Contracts cannot be rescinded for a slight or casual breach.
CAI cannot insist on the non-transferability of the subject tickets.
Considering that the subject contracts are not annullable on the ground of vitiated consent, the next question
is: "Do Spouses Viloria have the right to rescind the contract on the ground of CAI’s supposed breach of its
undertaking to issue new tickets upon surrender of the subject tickets?"
Article 1191, as presently worded, states:
The power to rescind obligations is implied in reciprocal ones, in case one of the obligors should not comply
with what is incumbent upon him.
The injured party may choose between the fulfilment and the rescission of the obligation, with the payment
of damages in either case. He may also seek rescission, even after he has chosen fulfillment, if the latter
should become impossible.
The court shall decree the rescission claimed, unless there be just cause authorizing the fixing of a period.
This is understood to be without prejudice to the rights of third persons who have acquired the thing, in
accordance with articles 1385 and 1388 and the Mortgage Law.
According to Spouses Viloria, CAI acted in bad faith and breached the subject contracts when it refused to
apply the value of Lourdes’ ticket for Fernando’s purchase of a round trip ticket to Los Angeles and in requiring
him to pay an amount higher than the price fixed by other airline companies.
In its March 24, 1998 letter, CAI stated that "non-refundable tickets may be used as a form of payment toward
the purchase of another Continental ticket for $75.00, per ticket, reissue fee ($50.00, per ticket, for tickets
purchased prior to October 30, 1997)."
Clearly, there is nothing in the above-quoted section of CAI’s letter from which the restriction on the non-
transferability of the subject tickets can be inferred. In fact, the words used by CAI in its letter supports the
position of Spouses Viloria, that each of them can use the ticket under their name for the purchase of new
tickets whether for themselves or for some other person.
Moreover, as CAI admitted, it was only when Fernando had expressed his interest to use the subject tickets
for the purchase of a round trip ticket between Manila and Los Angeles that he was informed that he cannot
use the ticket in Lourdes’ name as payment.
Contrary to CAI’s claim, that the subject tickets are non-transferable cannot be implied from a plain reading
of the provision printed on the subject tickets stating that "[t]o the extent not in conflict with the foregoing
carriage and other services performed by each carrier are subject to: (a) provisions contained in this ticket, x
x x (iii) carrier’s conditions of carriage and related regulations which are made part hereof (and are available
on application at the offices of carrier) x x x." As a common carrier whose business is imbued with public
interest, the exercise of extraordinary diligence requires CAI to inform Spouses Viloria, or all of its passengers
for that matter, of all the terms and conditions governing their contract of carriage. CAI is proscribed from
taking advantage of any ambiguity in the contract of carriage to impute knowledge on its passengers of and
demand compliance with a certain condition or undertaking that is not clearly stipulated. Since the prohibition
on transferability is not written on the face of the subject tickets and CAI failed to inform Spouses Viloria [N]ewspaper articles amount to "hearsay evidence, twice removed" and are therefore not only inadmissible
thereof, CAI cannot refuse to apply the value of Lourdes’ ticket as payment for Fernando’s purchase of a new but without any probative value at all whether objected to or not, unless offered for a purpose other than
ticket. proving the truth of the matter asserted. In this case, the news article is admissible only as evidence that such
publication does exist with the tenor of the news therein stated.45 (citations omitted)
CAI’s refusal to accept Lourdes’ ticket for the purchase of a new ticket for Fernando is only a
casual breach. The records of this case demonstrate that both parties were equally in default; hence, none of them can seek
judicial redress for the cancellation or resolution of the subject contracts and they are therefore bound to their
Nonetheless, the right to rescind a contract for non-performance of its stipulations is not absolute. The general respective obligations thereunder. As the 1st sentence of Article 1192 provides:
rule is that rescission of a contract will not be permitted for a slight or casual breach, but only for such
substantial and fundamental violations as would defeat the very object of the parties in making the Art. 1192. In case both parties have committed a breach of the obligation, the liability of the first
agreement.40 Whether a breach is substantial is largely determined by the attendant circumstances.41 infractor shall be equitably tempered by the courts. If it cannot be determined which of the parties first
violated the contract, the same shall be deemed extinguished, and each shall bear his own damages.
While CAI’s refusal to allow Fernando to use the value of Lourdes’ ticket as payment for the purchase of a (emphasis supplied)
new ticket is unjustified as the non-transferability of the subject tickets was not clearly stipulated, it cannot,
however be considered substantial. The endorsability of the subject tickets is not an essential part of the Therefore, CAI’s liability for damages for its refusal to accept Lourdes’ ticket for the purchase of Fernando’s
underlying contracts and CAI’s failure to comply is not essential to its fulfillment of its undertaking to issue round trip ticket is offset by Spouses Viloria’s liability for their refusal to pay the amount, which is not covered
new tickets upon Spouses Viloria’s surrender of the subject tickets. This Court takes note of CAI’s willingness by the subject tickets. Moreover, the contract between them remains, hence, CAI is duty bound to issue new
to perform its principal obligation and this is to apply the price of the ticket in Fernando’s name to the price tickets for a destination chosen by Spouses Viloria upon their surrender of the subject tickets and Spouses
of the round trip ticket between Manila and Los Angeles. CAI was likewise willing to accept the ticket in Viloria are obliged to pay whatever amount is not covered by the value of the subject tickets.
Lourdes’ name as full or partial payment as the case may be for the purchase of any ticket, albeit under her
name and for her exclusive use. In other words, CAI’s willingness to comply with its undertaking under its This Court made a similar ruling in Central Bank of the Philippines v. Court of Appeals.46 Thus:
March 24, 1998 cannot be doubted, albeit tainted with its erroneous insistence that Lourdes’ ticket is non-
transferable.
Since both parties were in default in the performance of their respective reciprocal obligations, that is, Island
Savings Bank failed to comply with its obligation to furnish the entire loan and Sulpicio M. Tolentino failed to
Moreover, Spouses Viloria’s demand for rescission cannot prosper as CAI cannot be solely faulted for the fact comply with his obligation to pay his ₱17,000.00 debt within 3 years as stipulated, they are both liable for
that their agreement failed to consummate and no new ticket was issued to Fernando. Spouses Viloria have damages.
no right to insist that a single round trip ticket between Manila and Los Angeles should be priced at around
$856.00 and refuse to pay the difference between the price of the subject tickets and the amount fixed by
Article 1192 of the Civil Code provides that in case both parties have committed a breach of their reciprocal
CAI. The petitioners failed to allege, much less prove, that CAI had obliged itself to issue to them tickets for
obligations, the liability of the first infractor shall be equitably tempered by the courts. WE rule that the liability
any flight anywhere in the world upon their surrender of the subject tickets. In its March 24, 1998 letter, it
of Island Savings Bank for damages in not furnishing the entire loan is offset by the liability of Sulpicio M.
was clearly stated that "[n]on-refundable tickets may be used as a form of payment toward the purchase of
Tolentino for damages, in the form of penalties and surcharges, for not paying his overdue ₱17,000.00 debt.
another Continental ticket"42 and there is nothing in it suggesting that CAI had obliged itself to protect Spouses
x x x.47
Viloria from any fluctuation in the prices of tickets or that the surrender of the subject tickets will be considered
as full payment for any ticket that the petitioners intend to buy regardless of actual price and destination. The
CA was correct in holding that it is CAI’s right and exclusive prerogative to fix the prices for its services and it Another consideration that militates against the propriety of holding CAI liable for moral damages is the
may not be compelled to observe and maintain the prices of other airline companies.43 absence of a showing that the latter acted fraudulently and in bad faith. Article 2220 of the Civil Code requires
evidence of bad faith and fraud and moral damages are generally not recoverable in culpa contractual except
when bad faith had been proven.48 The award of exemplary damages is likewise not warranted. Apart from
The conflict as to the endorsability of the subject tickets is an altogether different matter, which does not
the requirement that the defendant acted in a wanton, oppressive and malevolent manner, the claimant must
preclude CAI from fixing the price of a round trip ticket between Manila and Los Angeles in an amount it
prove his entitlement to moral damages.49
deems proper and which does not provide Spouses Viloria an excuse not to pay such price, albeit subject to
a reduction coming from the value of the subject tickets. It cannot be denied that Spouses Viloria had the
concomitant obligation to pay whatever is not covered by the value of the subject tickets whether or not the WHEREFORE, premises considered, the instant Petition is DENIED.
subject tickets are transferable or not.1avvphi1
SO ORDERED.
There is also no showing that Spouses Viloria were discriminated against in bad faith by being charged with a
higher rate. The only evidence the petitioners presented to prove that the price of a round trip ticket between
Manila and Los Angeles at that time was only $856.00 is a newspaper advertisement for another airline
company, which is inadmissible for being "hearsay evidence, twice removed." Newspaper clippings are hearsay
if they were offered for the purpose of proving the truth of the matter alleged. As ruled in Feria v. Court of
Appeals,:44
TORTS – TESTS OF NEGLIGENCE
G.R. No. 129792 December 21, 1999
JARCO MARKETING CORPORATION, LEONARDO KONG, JOSE TIOPE and ELISA
PANELO, petitioners,
vs.
HONORABLE COURT OF APPEALS, CONRADO C. AGUILAR and CRISELDA R.
AGUILAR, respondents.
DAVIDE, JR., J.:
In this petition for review on certiorari under Rule 45 of the Rules of Court, petitioners seek the reversal of
the 17 June 1996 decision 1 of the Court of Appeals in C.A. G.R. No. CV 37937 and the resolution 2 denying
their motion for reconsideration. The assailed decision set aside the 15 January 1992 judgment of the Regional
Trial Court (RTC), Makati City, Branch 60 in Civil Case No. 7119 and ordered petitioners to pay damages and
attorney's fees to private respondents Conrado and Criselda (CRISELDA) Aguilar.
Petitioner Jarco Marketing Corporation is the owner of Syvel's Department Store, Makati City. Petitioners
Leonardo Kong, Jose Tiope and Elisa Panelo are the store's branch manager, operations manager, and
supervisor, respectively. Private respondents are spouses and the parents of Zhieneth Aguilar (ZHIENETH).
In the afternoon of 9 May 1983, CRISELDA and ZHIENETH were at the 2nd floor of Syvel's Department Store,
Makati City. CRISELDA was signing her credit card slip at the payment and verification counter when she felt
a sudden gust of wind and heard a loud thud. She looked behind her. She then beheld her daughter ZHIENETH
on the floor, her young body pinned by the bulk of the store's gift-wrapping counter/structure. ZHIENETH was
crying and screaming for help. Although shocked, CRISELDA was quick to ask the assistance of the people
around in lifting the counter and retrieving ZHIENETH from the floor. 3
ZHIENETH was quickly rushed to the Makati Medical Center where she was operated on. The next day
ZHIENETH lost her speech and thereafter communicated with CRISELDA by writing on a magic slate. The
injuries she sustained took their toil on her young body. She died fourteen (14) days after the accident or on
22 May 1983, on the hospital bed. She was six years old. 4
The cause of her death was attributed to the injuries she sustained. The provisional medical certificate 5 issued
by ZHIENETH's attending doctor described the extent of her injuries:
Diagnoses:
1. Shock, severe, sec. to intra-abdominal injuries due to blunt injury
2. Hemorrhage, massive, intraperitoneal sec. to laceration, (L) lobe liver
3. Rupture, stomach, anterior & posterior walls
4. Complete transection, 4th position, duodenum
5. Hematoma, extensive, retroperitoneal
6. Contusion, lungs, severe
CRITICAL
After the burial of their daughter, private respondents demanded upon petitioners the reimbursement of the
hospitalization, medical bills and wake and funeral expenses 6 which they had incurred. Petitioners refused to
pay. Consequently, private respondents filed a complaint for damages, docketed as Civil Case No. 7119
wherein they sought the payment of P157,522.86 for actual damages, P300,000 for moral damages, P20,000
for attorney's fees and an unspecified amount for loss of income and exemplary damages.
In their answer with counterclaim, petitioners denied any liability for the injuries and consequent death of
ZHIENETH. They claimed that CRISELDA was negligent in exercising care and diligence over her daughter by
allowing her to freely roam around in a store filled with glassware and appliances. ZHIENETH too, was guilty
of contributory negligence since she climbed the counter, triggering its eventual collapse on her. Petitioners
also emphasized that the counter was made of sturdy wood with a strong support; it never fell nor collapsed
for the past fifteen years since its construction.
Additionally, petitioner Jarco Marketing Corporation maintained that it observed the diligence of a good father
of a family in the selection, supervision and control of its employees. The other petitioners likewise raised due
care and diligence in the performance of their duties and countered that the complaint was malicious for which
they suffered besmirched reputation and mental anguish. They sought the dismissal of the complaint and an
award of moral and exemplary damages and attorney's fees in their favor.
In its decision 7 the trial court dismissed the complaint and counterclaim after finding that the preponderance
of the evidence favored petitioners. It ruled that the proximate cause of the fall of the counter on ZHIENETH
was her act of clinging to it. It believed petitioners' witnesses who testified tat ZHIENETH clung to the counter,
afterwhich the structure and the girl fell with the structure falling on top of her, pinning her stomach. In
contrast, none of private respondents' witnesses testified on how the counter fell. The trial court also held
that CRISELDA's negligence contributed to ZHIENETH's accident.
In absolving petitioners from any liability, the trial court reasoned that the counter was situated at the end or
corner of the 2nd floor as a precautionary measure hence, it could not be considered as an attractive
nuisance. 8 The counter was higher than ZHIENETH. It has been in existence for fifteen years. Its structure
was safe and well-balanced. ZHIENETH, therefore, had no business climbing on and clinging to it.
Private respondents appealed the decision, attributing as errors of the trial court its findings that: (1) the
proximate cause of the fall of the counter was ZHIENETH's misbehavior; (2) CRISELDA was negligent in her
care of ZHIENETH; (3) petitioners were not negligent in the maintenance of the counter; and (4) petitioners
were not liable for the death of ZHIENETH.
Further, private respondents asserted that ZHIENETH should be entitled to the conclusive presumption that a
child below nine (9) years is incapable of contributory negligence. And even if ZHIENETH, at six (6) years old,
was already capable of contributory negligence, still it was physically impossible for her to have propped
herself on the counter. She had a small frame (four feet high and seventy pounds) and the counter was much
higher and heavier than she was. Also, the testimony of one of the store's former employees, Gerardo
Gonzales, who accompanied ZHIENETH when she was brought to the emergency room of the Makati Medical
Center belied petitioners' theory that ZHIENETH climbed the counter. Gonzales claimed that when ZHIENETH
was asked by the doctor what she did, ZHIENETH replied, "[N]othing, I did not come near the counter and WHEREFORE, premises considered, the judgment of the lower court is SET ASIDE and another one is
the counter just fell on me." 9 Accordingly, Gonzales' testimony on ZHIENETH's spontaneous declaration entered against [petitioners], ordering them to pay jointly and severally unto [private respondents] the
should not only be considered as part of res gestaebut also accorded credit. following:

Moreover, negligence could not be imputed to CRISELDA for it was reasonable for her to have let go of 1. P50,000.00 by way of compensatory damages for the death of Zhieneth Aguilar, with legal interest
ZHIENETH at the precise moment that she was signing the credit card slip. (6% p.a.) from 27 April 1984;

Finally, private respondents vigorously maintained that the proximate cause of ZHIENETH's death, was 2. P99,420.86 as reimbursement for hospitalization expenses incurred; with legal interest (6% p.a.) from
petitioners' negligence in failing to institute measures to have the counter permanently nailed. 27 April 1984;

On the other hand, petitioners argued that private respondents raised purely factual issues which could no 3. P100,000.00 as moral and exemplary damages;
longer be disturbed. They explained that ZHIENETH's death while unfortunate and tragic, was an accident for
which neither CRISELDA nor even ZHIENETH could entirely be held faultless and blameless. Further, 4. P20,000.00 in the concept of attorney's fees; and
petitioners adverted to the trial court's rejection of Gonzales' testimony as unworthy of credence.
5. Costs.
As to private respondent's claim that the counter should have been nailed to the ground, petitioners justified
that it was not necessary. The counter had been in existence for several years without any prior accident and
Private respondents sought a reconsideration of the decision but the same was denied in the Court of Appeals'
was deliberately placed at a corner to avoid such accidents. Truth to tell, they acted without fault or negligence
resolution 14 of 16 July 1997.
for they had exercised due diligence on the matter. In fact, the criminal case 10 for homicide through simple
negligence filed by private respondents against the individual petitioners was dismissed; a verdict of acquittal
was rendered in their favor. Petitioners now seek the reversal of the Court of Appeals' decision and the reinstatement of the judgment of
the trial court. Petitioners primarily argue that the Court of Appeals erred in disregarding the factual findings
and conclusions of the trial court. They stress that since the action was based on tort, any finding of negligence
The Court of Appeals, however, decided in favor of private respondents and reversed the appealed judgment.
on the part of the private respondents would necessarily negate their claim for damages, where said
It found that petitioners were negligent in maintaining a structurally dangerous counter. The counter was
negligence was the proximate cause of the injury sustained. The injury in the instant case was the death of
shaped like an inverted "L" 11 with a top wider than the base. It was top heavy and the weight of the upper
ZHIENETH. The proximate cause was ZHIENETH's act of clinging to the counter. This act in turn caused the
portion was neither evenly distributed nor supported by its narrow base. Thus, the counter was defective,
counter to fall on her. This and CRISELDA's contributory negligence, through her failure to provide the proper
unstable and dangerous; a downward pressure on the overhanging portion or a push from the front could
care and attention to her child while inside the store, nullified private respondents' claim for damages. It is
cause the counter to fall. Two former employees of petitioners had already previously brought to the attention
also for these reasons that parents are made accountable for the damage or injury inflicted on others by their
of the management the danger the counter could cause. But the latter ignored their concern. The Court of
minor children. Under these circumstances, petitioners could not be held responsible for the accident that
Appeals faulted the petitioners for this omission, and concluded that the incident that befell ZHIENETH could
befell ZHIENETH.
have been avoided had petitioners repaired the defective counter. It was inconsequential that the counter had
been in use for some time without a prior incident.
Petitioners also assail the credibility of Gonzales who was already separated from Syvel's at the time he
testified; hence, his testimony might have been tarnished by ill-feelings against them.
The Court of Appeals declared that ZHIENETH, who was below seven (7) years old at the time of the incident,
was absolutely incapable of negligence or other tort. It reasoned that since a child under nine (9) years could
not be held liable even for an intentional wrong, then the six-year old ZHIENETH could not be made to account For their part, private respondents principally reiterated their arguments that neither ZHIENETH nor CRISELDA
for a mere mischief or reckless act. It also absolved CRISELDA of any negligence, finding nothing wrong or was negligent at any time while inside the store; the findings and conclusions of the Court of Appeals are
out of the ordinary in momentarily allowing ZHIENETH to walk while she signed the document at the nearby substantiated by the evidence on record; the testimony of Gonzales, who heard ZHIENETH comment on the
counter. incident while she was in the hospital's emergency room should receive credence; and finally, ZHIENETH's
part of the res gestaedeclaration "that she did nothing to cause the heavy structure to fall on her" should be
considered as the correct version of the gruesome events.
The Court of Appeals also rejected the testimonies of the witnesses of petitioners. It found them biased and
prejudiced. It instead gave credit to the testimony of disinterested witness Gonzales. The Court of Appeals
then awarded P99,420.86 as actual damages, the amount representing the hospitalization expenses incurred We deny the petition.
by private respondents as evidenced by the hospital's statement of account. 12 It denied an award for funeral
expenses for lack of proof to substantiate the same. Instead, a compensatory damage of P50,000 was awarded The two issues to be resolved are: (1) whether the death of ZHIENETH was accidental or attributable to
for the death of ZHIENETH. negligence; and (2) in case of a finding of negligence, whether the same was attributable to private
respondents for maintaining a defective counter or to CRISELDA and ZHIENETH for failing to exercise due and
We quote the dispositive portion of the assailed decision, 13 thus: reasonable care while inside the store premises.n accident pertains to an unforeseen event in which no fault
or negligence attaches to the defendant. 15 It is "a fortuitous circumstance, event or happening; an event
happening without any human agency, or if happening wholly or partly through human agency, an event
which under the circumstances is unusual or unexpected by the person to whom it happens." 16
On the other hand, negligence is the omission to do something which a reasonable man, guided by those
considerations which ordinarily regulate the conduct of human affairs, would do, or the doing of something
which a prudent and reasonable man would not do. 17 Negligence is "the failure to observe, for the protection
of the interest of another person, that degree of care, precaution and vigilance which the circumstances justly
demand, whereby such other person suffers injury." 18
Accident and negligence are intrinsically contradictory; one cannot exist with the other. Accident occurs when
the person concerned is exercising ordinary care, which is not caused by fault of any person and which could
not have been prevented by any means suggested by common prudence. 19
The test in determining the existence of negligence is enunciated in the landmark case of Plicart v.
Smith, 20 thus: Did the defendant in doing the alleged negligent act use that reasonable care and caution
which an ordinarily prudent person would have used in the same situation? If not, then he is guilty of
negligence. 21
We rule that the tragedy which befell ZHIENETH was no accident and that ZHIENETH's death could only be
attributed to negligence.
We quote the testimony of Gerardo Gonzales who was at the scene of the incident and accompanied CRISELDA
and ZHIENETH to the hospital:
Q While at the Makati Medical Center, did you hear or notice anything while the child was being treated?
A At the emergency room we were all surrounding the child. And when the doctor asked the child "what did
you do," the child said "nothing, I did not come near the counter and the counter just fell on me."
Q (COURT TO ATTY. BELTRAN)
You want the words in Tagalog to be translated?
ATTY. BELTRAN
Yes, your Honor.
COURT
Granted. Intercalate "wala po, hindi po ako lumapit doon. Basta bumagsak." 22
This testimony of Gonzales pertaining to ZHIENETH's statement formed (and should be admitted as) part of
the res gestae under Section 42, Rule 130 of the Rules of Court, thus:
Part of res gestae. Statements made by a person while a startling occurrence is taking place
or immediately prior or subsequent thereto with respect to the circumstances thereof, may
be given in evidence as part of the res gestae. So, also, statements accompanying an
equivocal act material to the issue, and giving it a legal significance, may be received as
part of the res gestae.
It is axiomatic that matters relating to declarations of pain or suffering and statements made to a physician
are generally considered declarations and admissions. 23 All that is required for their admissibility as part of
the res gestae is that they be made or uttered under the influence of a startling event before the declarant
had the time to think and concoct a falsehood as witnessed by the person who testified in court. Under the
circumstances thus described, it is unthinkable for ZHIENETH, a child of such tender age and in extreme pain,
to have lied to a doctor whom she trusted with her life. We therefore accord credence to Gonzales' testimony
on the matter, i.e., ZHIENETH performed no act that facilitated her tragic death. Sadly, petitioners did, through
their negligence or omission to secure or make stable the counter's base.
Gonzales' earlier testimony on petitioners' insistence to keep and maintain the structurally unstable gift-
wrapping counter proved their negligence, thus:
Q When you assumed the position as gift wrapper at the second floor, will you please describe the gift
wrapping counter, were you able to examine?
A Because every morning before I start working I used to clean that counter and since not nailed and it was
only standing on the floor, it was shaky.
xxx xxx xxx
Q Will you please describe the counter at 5:00 o'clock [sic] in the afternoon on [sic] May 9 1983?
A At that hour on May 9, 1983, that counter was standing beside the verification counter. And since the top
of it was heavy and considering that it was not nailed, it can collapse at anytime, since the top is heavy.
xxx xxx xxx
Q And what did you do?
A I informed Mr. Maat about that counter which is [sic] shaky and since Mr. Maat is fond of putting display
decorations on tables, he even told me that I would put some decorations. But since I told him that it not
[sic] nailed and it is shaky he told me "better inform also the company about it." And since the company
did not do anything about the counter, so I also did not do anything about the counter. 24 [Emphasis
supplied]
Ramon Guevarra, another former employee, corroborated the testimony of Gonzales, thus:
Q Will you please described [sic] to the honorable Court the counter where you were assigned in January
1983?
xxx xxx xxx
A That counter assigned to me was when my supervisor ordered me to carry that counter to another place.
I told him that the counter needs nailing and it has to be nailed because it might cause injury or accident
to another since it was shaky.
 Q When that gift wrapping counter was transferred at the second floor on February 12, 1983, will you please of liability, either criminal or civil, a child under nine years of age is, by analogy, conclusively
describe that to the honorable Court? presumed to be incapable of negligence; and that the presumption of lack of discernment
or incapacity for negligence in the case of a child over nine but under fifteen years of age
A I told her that the counter wrapper [sic] is really in good [sic] condition; it was shaky. I told her that we
is a rebuttable one, under our law. The rule, therefore, is that a child under nine years of
had to nail it.
age must be conclusively presumed incapable of contributory negligence as a matter of law.
Q When you said she, to whom are you referring to [sic]? [Emphasis supplied]
A I am referring to Ms. Panelo, sir.
Even if we attribute contributory negligence to ZHIENETH and assume that she climbed over the counter, no
Q And what was the answer of Ms. Panelo when you told her that the counter was shaky? injury should have occurred if we accept petitioners' theory that the counter was stable and sturdy. For if that
was the truth, a frail six-year old could not have caused the counter to collapse. The physical analysis of the
A She told me "Why do you have to teach me. You are only my subordinate and you are to teach me?" And
counter by both the trial court and Court of Appeals and a scrutiny of the evidence 29 on record reveal
she even got angry at me when I told her that.
otherwise, i.e., it was not durable after all. Shaped like an inverted "L," the counter was heavy, huge, and its
xxx xxx xxx top laden with formica. It protruded towards the customer waiting area and its base was not secured. 30
Q From February 12, 1983 up to May 9, 1983, what if any, did Ms. Panelo or any employee of the
management do to that (sic) CRISELDA too, should be absolved from any contributory negligence. Initially, ZHIENETH held on to
CRISELDA's waist, later to the latter's hand. 31 CRISELDA momentarily released the child's hand from her
xxx xxx xxx clutch when she signed her credit card slip. At this precise moment, it was reasonable and usual for CRISELDA
Witness: to let go of her child. Further, at the time ZHIENETH was pinned down by the counter, she was just a foot
away from her mother; and the gift-wrapping counter was just four meters away from CRISELDA. 32 The time
None, sir. They never nailed the counter. They only nailed the counter after the accident and distance were both significant. ZHIENETH was near her mother and did not loiter as petitioners would
happened. 25 [Emphasis supplied] want to impress upon us. She even admitted to the doctor who treated her at the hospital that she did not do
anything; the counter just fell on her.
Without doubt, petitioner Panelo and another store supervisor were personally informed of the danger posed
by the unstable counter. Yet, neither initiated any concrete action to remedy the situation nor ensure the WHEREFORE, in view of all the foregoing, the instant petition is DENIED and the challenged decision of the
safety of the store's employees and patrons as a reasonable and ordinary prudent man would have done. Court of Appeals of 17 June 1996 in C.A. G.R. No. CV 37937 is hereby AFFIRMED.
Thus, as confronted by the situation petitioners miserably failed to discharge the due diligence required of a
good father of a family. Costs against petitioners.

On the issue of the credibility of Gonzales and Guevarra, petitioners failed to establish that the former's SO ORDERED.
testimonies were biased and tainted with partiality. Therefore, the allegation that Gonzales and Guevarra's
testimonies were blemished by "ill feelings" against petitioners — since they (Gonzales and Guevarra) were
already separated from the company at the time their testimonies were offered in court — was but mere
speculation and deserved scant consideration.

It is settled that when the issue concerns the credibility of witnesses, the appellate courts will not as a general
rule disturb the findings of the trial court, which is in a better position to determine the same. The trial court
has the distinct advantage of actually hearing the testimony of and observing the deportment of the
witnesses. 26 However, the rule admits of exceptions such as when its evaluation was reached arbitrarily or it
overlooked or failed to appreciate some facts or circumstances of weight and substance which could affect
the result of the case. 27 In the instant case, petitioners failed to bring their claim within the exception.

Anent the negligence imputed to ZHIENETH, we apply the conclusive presumption that favors children below
nine (9) years old in that they are incapable of contributory negligence. In his book, 28 former Judge Cezar S.
Sangco stated:

In our jurisdiction, a person under nine years of age is conclusively presumed to have acted
without discernment, and is, on that account, exempt from criminal liability. The same
presumption and a like exemption from criminal liability obtains in a case of a person over
nine and under fifteen years of age, unless it is shown that he has acted with discernment.
Since negligence may be a felony and a quasi-delict and required discernment as a condition
TORTS – TESTS OF NEGLIGENCE
G.R. No. L-7664 August 29, 1958
MR. AND MRS. AMADOR C. ONG, plaintiffs-appellants,
vs.
METROPOLITAN WATER DISTRICT, defendant-appellee.
BAUTISTA ANGELO, J.:
Plaintiffs spouses seek to recover from defendant, a government-owned corporation, the sum of P50,000 as
amages, P5,000 as funeral expenses, and P11,000 as attorneys' fees, for the death of their son Dominador
Ong in one of the swimming pools operated by defendant.
Defendant admits the fact that plaintiffs' son was drowned in one of its swimming pools but avers that his
death was caused by his own negligence or by unavoidable accident. Defendant also avers that it had exercised
due diligence in the selection of, and supervision over, its employees and that it had observed the diligence
required by law under the circumstances.
After trial, the lower court found that the action of plaintiffs is untenable and dismissed the complaint without
pronouncement as to costs. Plaintiffs took the case on appeal directly to this Court because the amount
involved exceeds the sum of P50,000.
Defendant owns and operates three recreational swimming pools at its Balara filters, Diliman, Quezon City, to
which people are invited and for which a nominal fee of P0.50 for adults and P0.20 for children is charged.
The main pool it between two small pools of oval shape known as the "Wading pool" and the "Beginners Pool."
There are diving boards in the big pools and the depths of the water at different parts are indicated by
appropriate marks on the wall. The care and supervision of the pools and the users thereof is entrusted to a
recreational section composed of Simeon Chongco as chief, Armando Rule, a male nurse, and six lifeguards
who had taken the life-saving course given by the Philippine Red Cross at the YMCA in Manila. For the safety
of its patrons, defendant has provided the pools with a ring buoy, toy roof, towing line, saving kit and a
resuscitator. There is also a sanitary inspector who is in charge of a clinic established for the benefit of the
patrons. Defendant has also on display in a conspicuous place certain rules and regulations governing the use
of the pools, one of which prohibits the swimming in the pool alone or without any attendant. Although
defendant does not maintain a full-time physician in the swimming pool compound, it has however a nurse
and a sanitary inspector ready to administer injections or operate the oxygen resuscitator if the need should
arise.
In the afternoon of July 5, 1952, at about 1:00 o'clock, Dominador Ong, a 14-year old high school student
and boy scout, and his brothers Ruben and Eusebio, went to defendant's swimming pools. This was not the
first time that the three brothers had gone to said natatorium for they had already been there four or five
times before. They arrived at the natatorium at about 1:45 p.m. After paying the requisite admission fee, they
immediately went to one of the small pools where the water was shallow. At about 4:35 p.m., Dominador Ong
told his brothers that he was going to the locker room in an adjoining building to drink a bottle of coke. Upon
hearing this, Ruben and Eusebio went to the bigger pool leaving Dominador in the small pool and so they did
not see the latter when he left the pool to get a bottle of coke. In that afternoon, there were two lifeguards
on duty in the pool compound, namely, Manuel Abaño and Mario Villanueva. The tour of duty of Abaño was
from 8:00 to 12:00 in the morning and from 2:00 to 6:00 in the afternoon, and of Villanueva from 7:30 to
11:30 a.m. and from 12:30 to 4:30 p.m. Between 4:00 to 5:00 that afternoon, there were about twenty
bathers inside the pool area and Manuel Abaño was going around the pools to observe the bathers in
compliance with the instructions of his chief.
Between 4:40 to 4:45 p.m., some boys who were in the pool area informed a bather by the name of Andres
Hagad, Jr., that somebody was swimming under water for quite a long time. Another boy informed lifeguard
Manuel Abaño of the same happening and Abaño immediately jumped into the big swimming pool and
retrieved the apparently lifeless body of Dominador Ong from the bottom. The body was placed at the edge
of the pool and Abaño immediately applied manual artificial respiration. Soon after, male nurse Armando Rule
came to render assistance, followed by sanitary inspector Iluminado Vicente who, after being called by phone
from the clinic by one of the security guards, boarded a jeep carrying with him the resuscitator and a medicine
kit, and upon arriving he injected the boy with camphorated oil. After the injection, Vicente left on a jeep in
order to fetch Dr. Ayuyao from the University of the Philippines. Meanwhile, Abaño continued the artificial
manual respiration, and when this failed to revive him, they applied the resuscitator until the two oxygen tanks
were exhausted. Not long thereafter, Dr. Ayuyao arrived with another resuscitator, but the same became of
no use because he found the boy already dead. The doctor ordered that the body be taken to the clinic.
In the evening of the same day, July 5, 1952, the incident was investigated by the Police Department of
Quezon City and in the investigation boys Ruben Ong and Andres Hagad, Jr. gave written statements. On the
following day, July 6, 1952, an autopsy was performed by Dr. Enrique V. de los Santos, Chief, Medico Legal
Division, National Bureau of Investigation, who found in the body of the deceased the following: an abrasion
on the right elbow lateral aspect; contusion on the right forehead; hematoma on the scalp, frontal region,
right side; a congestion in the brain with petechial subcortical hemorrhage, frontal lobe; cyanosis on the face
and on the nails; the lung was soggy with fine froth in the bronchioles; dark fluid blood in the heart; congestion
in the visceral organs, and brownish fluid in the stomach. The death was due to asphyxia by submersion in
water.
The issue posed in this appeal is whether the death of minor Dominador Ong can be attributed to the
negligence of defendant and/or its employees so as to entitle plaintiffs to recover damages.
The present action is governed by Article 2176 in relation to Article 2080 of the new Civil Code. The first article
provides that "whoever by act or omission causes damage to another, there being fault or negligence, is
obliged to pay for the damages done." Such fault or negligence is called quasi-delict. Under the second article,
this obligation is demandable not only for one's own acts or omissions but also for those of persons for whom
one is responsible. In addition, we may quote the following authorities cited in the decision of the trial court:
"The rule is well settled that the owners of resorts to which people generally are expressly or by implication
invited are legally bound to exercise ordinary care and prudence in the management and maintenance of
such resorts, to the end of making them reasonably safe for visitors" (Larkin vs. Saltair Beach Co., 30 Utah
86, 83 Pac. 686).
"Although the proprietor of a natatorium is liable for injuries to a patron, resulting from lack of ordinary care
in providing for his safety, without the fault of the patron, he is not, however, in any sense deemed to be
the insurer of the safety of patrons. And the death of a patron within his premises does not cast upon him
the burden of excusing himself from any presumption of negligence" (Bertalot vs. Kinnare. 72 Ill. App. 52,
22 A. L. R. 635; Flora vs. Bimini Water Co., 161 Cal. 495, 119 Pac. 661). Thus in Bertalot vs. Kinnare, supra,
it was held that there could be no recovery for the death by drowning of a fifteen-year boy in defendant's
natatorium, where it appeared merely that he was lastly seen alive in water at the shallow end of the pool,
and some ten or fifteen minutes later was discovered unconscious, and perhaps lifeless, at the bottom of
the pool, all efforts to resuscitate him being without avail.
Since the present action is one for damages founded on culpable negligence, the principle to be observed is
that the person claiming damages has the burden of proving that the damage is caused by the fault or
negligence of the person from whom the damage is claimed, or of one of his employees (Walter A. Smith &
Co. vs. Cadwallader Gibson Lumber Co., 55 Phil., 517). The question then that arises is: Have appellants
established by sufficient evidence the existence of fault or negligence on the part of appellee so as to render
it liable for damages for the death of Dominador Ong?
There is no question that appellants had striven to prove that appellee failed to take the necessary precaution
to protect the lives of its patrons by not placing at the swimming pools efficient and competent employees
who may render help at a moment's notice, and they ascribed such negligence to appellee because the
lifeguard it had on the occasion minor Ong was drowning was not available or was attending to something
else with the result that his help came late. Thus, appellants tried to prove through the testimony of Andres
Hagad, Jr. and Ruben Ong that when Eusebio Ong and Hagad, Jr. detected that there was a drowning person
in the bottom of the big swimming pool and shouted to the lifeguard for help, lifeguard Manuel Abaño did not
immediately respond to the alarm and it was only upon the third call that he threw away the magazine he was
reading and allowed three or four minutes to elapse before retrieving the body from the water. This negligence
of Abaño, they contend, is attributable to appellee.
But the claim of these two witnesses not only was vehemently denied by lifeguard Abaño, but is belied by the
written statements given by them in the investigation conducted by the Police Department of Quezon City
approximately three hours after the happening of the accident. Thus, these two boys admitted in the
investigation that they narrated in their statements everything they knew of the accident, but, as found by
the trial, nowhere in said statements do they state that the lifeguard was chatting with the security guard at
the gate of the swimming pool or was reading a comic magazine when the alarm was given for which reason
he failed to immediately respond to the alarm. On the contrary, what Ruben Ong particularly emphasized
therein was that after the lifeguard heard the shouts for help, the latter immediately dived into the pool to
retrieve the person under water who turned out to be his brother. For this reason, the trial court made this
conclusion: "The testimony of Ruben Ong and Andres Hagad, Jr. as to the alleged failure of the lifeguard
Abaño to immediately respond to their call may therefore be disregarded because they are belied by their
written statements. (Emphasis supplied.)
On the other hand, there is sufficient evidence to show that appellee has taken all necessary precautions to
avoid danger to the lives of its patrons or prevent accident which may cause their death. Thus, it has been
shown that the swimming pools of appellee are provided with a ring buoy, toy roof, towing line, oxygen
resuscitator and a first aid medicine kit. The bottom of the pools is painted with black colors so as to insure
clear visibility. There is on display in a conspicuous place within the area certain rules and regulations
governing the use of the pools. Appellee employs six lifeguards who are all trained as they had taken a course
for that purpose and were issued certificates of proficiency. These lifeguards work on schedule prepared by
their chief and arranged in such a way as to have two guards at a time on duty to look after the safety of the
bathers. There is a male nurse and a sanitary inspector with a clinic provided with oxygen resuscitator. And
there are security guards who are available always in case of emergency.
The record also shows that when the body of minor Ong was retrieved from the bottom of the pool, the
employees of appellee did everything possible to bring him back to life. Thus, after he was placed at the edge
of the pool, lifeguard Abaño immediately gave him manual artificial respiration. Soon thereafter, nurse
Armando Rule arrived, followed by sanitary inspector Iluminado Vicente who brought with him an oxygen
resuscitator. When they found that the pulse of the boy was abnormal, the inspector immediately injected him
with camphorated oil. When the manual artificial respiration proved ineffective they applied the oxygen
resuscitator until its contents were exhausted. And while all these efforts were being made, they sent for Dr.
Ayuyao from the University of the Philippines who however came late because upon examining the body he
found him to be already dead. All of the foregoing shows that appellee has done what is humanly possible
under the circumstances to restore life to minor Ong and for that reason it is unfair to hold it liable for his
death.
Sensing that their former theory as regards the liability of appellee may not be of much help, appellants now
switch to the theory that even if it be assumed that the deceased is partly to be blamed for the unfortunate
incident, still appellee may be held liable under the doctrine of "last clear chance" for the reason that, having
the last opportunity to save the victim, it failed to do so.
We do not see how this doctrine may apply considering that the record does not show how minor Ong came
into the big swimming pool. The only thing the record discloses is that minor Ong informed his elder brothers
that he was going to the locker room to drink a bottle of coke but that from that time on nobody knew what
happened to him until his lifeless body was retrieved. The doctrine of last clear chance simply means that the
negligence of a claimant does not preclude a recovery for the negligence of defendant where it appears that
the latter, by exercising reasonable care and prudence, might have avoided injurious consequences to claimant
notwithstanding his negligence. Or, "As the doctrine usually is stated, a person who has the last clear chance
or opportunity of avoiding an accident, notwithstanding the negligent acts of his opponent or the negligence
of a third person which is imputed to his opponent, is considered in law solely responsible for the consequences
of the accident." (38 Am. Jur. pp. 900-902)
It goes without saying that the plaintiff himself was not free from fault, for he was guilty of antecedent
negligence in planting himself in the wrong side of the road. But as we have already stated, the defendant
was also negligent; and in such case the problem always is to discover which agent is immediately and
directly responsible. It will be noted that the negligent acts of the two parties were not contemporaneous,
since the negligence of the defendant succeeded the negligence of the plaintiff by an appreciable interval.
Under these circumstances, the law is that a person who has the last clear chance to avoid the impending
harm and fails to do so is chargeable with the consequences, without reference to the prior negligence of
the other party. (Picart vs. Smith, 37 Phil., 809)
Since it is not known how minor Ong came into the big swimming pool and it being apparent that he went
there without any companion in violation of one of the regulations of appellee as regards the use of the pools,
and it appearing that lifeguard Aba_¤_o responded to the call for help as soon as his attention was called to
it and immediately after retrieving the body all efforts at the disposal of appellee had been put into play in
order to bring him back to life, it is clear that there is no room for the application of the doctrine now invoked
by appellants to impute liability to appellee..
The last clear chance doctrine can never apply where the party charged is required to act instantaneously,
and if the injury cannot be avoided by the application of all means at hand after the peril is or should have
been discovered; at least in cases in which any previous negligence of the party charged cannot be said to
have contributed to the injury. O'Mally vs. Eagan, 77 ALR 582, 43 Wyo. 233, 350, 2, P2d 1063. (A.L.R.
Digest, Vol. 8, pp. 955-956)
Before closing, we wish to quote the following observation of the trial court, which we find supported by the
evidence: "There is (also) a strong suggestion coming from the expert evidence presented by both parties
that Dominador Ong might have dived where the water was only 5.5 feet deep, and in so doing he might have
hit or bumped his forehead against the bottom of the pool, as a consequence of which he was stunned, and
which to his drowning. As a boy scout he must have received instructions in swimming. He knew, or have
known that it was dangerous for him to dive in that part of the pool."
Wherefore, the decision appealed from being in accordance with law and the evidence, we hereby affirm the
same, without pronouncement as to costs.
TORTS – TESTS OF NEGLIGENCE
G.R. No. 169467 February 25, 2010
ALFREDO P. PACIS and CLEOPATRA D. PACIS, Petitioners,
vs.
JEROME JOVANNE MORALES, Respondent.
DECISION
CARPIO, J.:
The Case
This petition for review1 assails the 11 May 2005 Decision2 and the 19 August 2005 Resolution of the Court of Appeals
in CA-G.R. CV No. 60669.
The Facts
On 17 January 1995, petitioners Alfredo P. Pacis and Cleopatra D. Pacis (petitioners) filed with the trial court a civil
case for damages against respondent Jerome Jovanne Morales (respondent). Petitioners are the parents of Alfred
Dennis Pacis, Jr. (Alfred), a 17-year old student who died in a shooting incident inside the Top Gun Firearms and
Ammunitions Store (gun store) in Baguio City. Respondent is the owner of the gun store.
The facts as found by the trial court are as follows:
On January 19, 1991, Alfred Dennis Pacis, then 17 years old and a first year student at the Baguio Colleges
Foundation taking up BS Computer Science, died due to a gunshot wound in the head which he sustained while he
was at the Top Gun Firearm[s] and Ammunition[s] Store located at Upper Mabini Street, Baguio City. The gun store
was owned and operated by defendant Jerome Jovanne Morales.
With Alfred Pacis at the time of the shooting were Aristedes Matibag and Jason Herbolario. They were sales agents
of the defendant, and at that particular time, the caretakers of the gun store.
The bullet which killed Alfred Dennis Pacis was fired from a gun brought in by a customer of the gun store for repair.
The gun, an AMT Automag II Cal. 22 Rimfire Magnum with Serial No. SN-H34194 (Exhibit "Q"), was left by defendant
Morales in a drawer of a table located inside the gun store.
Defendant Morales was in Manila at the time. His employee Armando Jarnague, who was the regular caretaker of
the gun store was also not around. He left earlier and requested sales agents Matibag and Herbolario to look after
the gun store while he and defendant Morales were away. Jarnague entrusted to Matibag and Herbolario a bunch
of keys used in the gun store which included the key to the drawer where the fatal gun was kept.
It appears that Matibag and Herbolario later brought out the gun from the drawer and placed it on top of the table.
Attracted by the sight of the gun, the young Alfred Dennis Pacis got hold of the same. Matibag asked Alfred Dennis
Pacis to return the gun. The latter followed and handed the gun to Matibag. It went off, the bullet hitting the young
Alfred in the head.
A criminal case for homicide was filed against Matibag before branch VII of this Court. Matibag, however, was
acquitted of the charge against him because of the exempting circumstance of "accident" under Art. 12, par. 4 of
the Revised Penal Code.
By agreement of the parties, the evidence adduced in the criminal case for homicide against Matibag was reproduced
and adopted by them as part of their evidence in the instant case.3
On 8 April 1998, the trial court rendered its decision in favor of petitioners. The dispositive portion of the decision
reads:
WHEREFORE, premises considered, judgment is hereby rendered in favor of the plaintiffs [Spouses Alfredo P. Pacis
and Cleopatra D. Pacis] and against the defendant [Jerome Jovanne Morales] ordering the defendant to pay plaintiffs
—
(1) ₱30,000.00 as indemnity for the death of Alfred Pacis;
(2) ₱29,437.65 as actual damages for the hospitalization and burial expenses incurred by the plaintiffs;
(3) ₱100,000.00 as compensatory damages;
(4) ₱100,000.00 as moral damages;
(5) ₱50,000.00 as attorney’s fees.
SO ORDERED.4
Respondent appealed to the Court of Appeals. In its Decision 5 dated 11 May 2005, the Court of Appeals reversed
the trial court’s Decision and absolved respondent from civil liability under Article 2180 of the Civil Code. 6
Petitioners filed a motion for reconsideration, which the Court of Appeals denied in its Resolution dated 19 August
2005.
Hence, this petition.
The Trial Court’s Ruling
The trial court held respondent civilly liable for the death of Alfred under Article 2180 in relation to Article 2176 of
the Civil Code.7 The trial court held that the accidental shooting of Alfred which caused his death was partly due to
the negligence of respondent’s employee Aristedes Matibag (Matibag). Matibag and Jason Herbolario (Herbolario)
were employees of respondent even if they were only paid on a commission basis. Under the Civil Code, respondent
is liable for the damages caused by Matibag on the occasion of the performance of his duties, unless respondent
proved that he observed the diligence of a good father of a family to prevent the damage. The trial court held that
respondent failed to observe the required diligence when he left the key to the drawer containing the loaded defective
gun without instructing his employees to be careful in handling the loaded gun.
The Court of Appeals’ Ruling
The Court of Appeals held that respondent cannot be held civilly liable since there was no employer-employee
relationship between respondent and Matibag. The Court of Appeals found that Matibag was not under the control
of respondent with respect to the means and methods in the performance of his work. There can be no employer-
employee relationship where the element of control is absent. Thus, Article 2180 of the Civil Code does not apply in
this case and respondent cannot be held liable.
Furthermore, the Court of Appeals ruled that even if respondent is considered an employer of Matibag, still
respondent cannot be held liable since no negligence can be attributed to him. As explained by the Court of Appeals:
Granting arguendo that an employer-employee relationship existed between Aristedes Matibag and the defendant-
appellant, we find that no negligence can be attributed to him.
Negligence is best exemplified in the case of Picart vs. Smith (37 Phil. 809). The test of negligence is this:
"x x x. Could a prudent man, in the position of the person to whom negligence is attributed, foresee harm to the
person injured as a reasonable consequence of the course about to be pursued? If so, the law imposes a duty on
the actor to refrain from that course or take precaution against its mischievous results, and the failure to do so
constitutes negligence. x x x."
Defendant-appellant maintains that he is not guilty of negligence and lack of due care as he did not fail to observe
the diligence of a good father of a family. He submits that he kept the firearm in one of his table drawers, which he
locked and such is already an indication that he took the necessary diligence and care that the said gun would not
be accessible to anyone. He puts [sic] that his store is engaged in selling firearms and ammunitions. Such items
which are per se dangerous are kept in a place which is properly secured in order that the persons coming into the
gun store would not be able to take hold of it unless it is done intentionally, such as when a customer is interested
to purchase any of the firearms, ammunitions and other related items, in which case, he may be allowed to handle
the same.
We agree. Much as We sympathize with the family of the deceased, defendant-appellant is not to be blamed. He
exercised due diligence in keeping his loaded gun while he was on a business trip in Manila. He placed it inside the
drawer and locked it. It was taken away without his knowledge and authority. Whatever happened to the deceased
was purely accidental.8
The Issues
Petitioners raise the following issues:
I. THE APPELLATE COURT COMMITTED SERIOUS ERROR IN RENDERING THE DECISION AND RESOLUTION IN
QUESTION IN DISREGARD OF LAW AND JURISPRUDENCE BY REVERSING THE ORDER OF THE REGIONAL TRIAL
COURT (BRANCH 59) OF BAGUIO CITY NOTWITHSTANDING CLEAR, AUTHENTIC RECORDS AND TESTIMONIES
PRESENTED DURING THE TRIAL WHICH NEGATE AND CONTRADICT ITS FINDINGS.
II. THE APPELLATE COURT COMMITTED GRAVE, REVERSIBLE ERROR IN RENDERING THE DECISION AND
RESOLUTION IN QUESTION BY DEPARTING FROM THE ACCEPTED AND USUAL COURSE OF JUDICIAL
PROCEEDINGS THEREBY IGNORING THE FACTUAL FINDINGS OF THE REGIONAL TRIAL COURT (BRANCH 59) OF
BAGUIO CITY SHOWING PETITIONER’S CLEAR RIGHTS TO THE AWARD OF DAMAGES.9
The Ruling of the Court
We find the petition meritorious.
This case for damages arose out of the accidental shooting of petitioners’ son. Under Article 116110 of the Civil Code,
petitioners may enforce their claim for damages based on the civil liability arising from the crime under Article
10011 of the Revised Penal Code or they may opt to file an independent civil action for damages under the Civil Code.
In this case, instead of enforcing their claim for damages in the homicide case filed against Matibag, petitioners
opted to file an independent civil action for damages against respondent whom they alleged was Matibag’s employer.
Petitioners based their claim for damages under Articles 2176 and 2180 of the Civil Code.
Unlike the subsidiary liability of the employer under Article 103 12 of the Revised Penal Code,13 the liability of the
employer, or any person for that matter, under Article 2176 of the Civil Code is primary and direct, based on a
person’s own negligence. Article 2176 states:
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 quasi-delict and is governed by the provisions of this Chapter.
This case involves the accidental discharge of a firearm inside a gun store. 1avvphi1 Under PNP Circular No. 9, entitled
the "Policy on Firearms and Ammunition Dealership/Repair," a person who is in the business of purchasing and
selling of firearms and ammunition must maintain basic security and safety requirements of a gun dealer, otherwise
his License to Operate Dealership will be suspended or canceled.14
Indeed, a higher degree of care is required of someone who has in his possession or under his control an
instrumentality extremely dangerous in character, such as dangerous weapons or substances. Such person in
possession or control of dangerous instrumentalities has the duty to take exceptional precautions to prevent any
injury being done thereby.15 Unlike the ordinary affairs of life or business which involve little or no risk, a business
dealing with dangerous weapons requires the exercise of a higher degree of care.
As a gun store owner, respondent is presumed to be knowledgeable about firearms safety and should have known
never to keep a loaded weapon in his store to avoid unreasonable risk of harm or injury to others. Respondent has
the duty to ensure that all the guns in his store are not loaded. Firearms should be stored unloaded and separate
from ammunition when the firearms are not needed for ready-access defensive use.16 With more reason, guns
accepted by the store for repair should not be loaded precisely because they are defective and may cause an
accidental discharge such as what happened in this case. Respondent was clearly negligent when he accepted the
gun for repair and placed it inside the drawer without ensuring first that it was not loaded. In the first place, the
defective gun should have been stored in a vault. Before accepting the defective gun for repair, respondent should
have made sure that it was not loaded to prevent any untoward accident. Indeed, respondent should never accept
a firearm from another person, until the cylinder or action is open and he has personally checked that the weapon
is completely unloaded.17 For failing to insure that the gun was not loaded, respondent himself was negligent.
Furthermore, it was not shown in this case whether respondent had a License to Repair which authorizes him to
repair defective firearms to restore its original composition or enhance or upgrade firearms. 18
Clearly, respondent did not exercise the degree of care and diligence required of a good father of a family, much
less the degree of care required of someone dealing with dangerous weapons, as would exempt him from liability in
this case.
WHEREFORE, we GRANT the petition. We SET ASIDE the 11 May 2005 Decision and the 19 August 2005 Resolution
of the Court of Appeals in CA-G.R. CV No. 60669. We REINSTATE the trial court’s Decision dated 8 April 1998.
SO ORDERED.