1

Karen Rizel B. Abella

G.R. No. L-12191 October 14, 1918
JOSE CANGCO, plaintiff-appellant,
vs.
MANILA RAILROAD CO., defendant-appellee.
At the time of the occurrence which gave rise to this
litigation the plaintiff, Jose Cangco, was in the employment of
Manila Railroad Company in the capacity of clerk, with a monthly
wage of P25. He lived in the pueblo of San Mateo, in the province
of Rizal, which is located upon the line of the defendant railroad
company; and in coming daily by train to the company's office in
the city of Manila where he worked, he used a pass, supplied by
the company, which entitled him to ride upon the company's
trains free of charge. Upon the occasion in question, January 20,
1915, the plaintiff arose from his seat in the second class-car
where he was riding and, making, his exit through the door, took
his position upon the steps of the coach, seizing the upright
guardrail with his right hand for support.
On the side of the train where passengers alight at the San
Mateo station there is a cement platform which begins to rise with
a moderate gradient some distance away from the company's
office and extends along in front of said office for a distance
sufficient to cover the length of several coaches. As the train
slowed down another passenger, named Emilio Zuiga, also an
employee of the railroad company, got off the same car, alighting
safely at the point where the platform begins to rise from the level
of the ground. When the train had proceeded a little farther the
plaintiff Jose Cangco stepped off also, but one or both of his feet
came in contact with a sack of watermelons with the result that
his feet slipped from under him and he fell violently on the
platform. His body at once rolled from the platform and was
drawn under the moving car, where his right arm was badly
crushed and lacerated. It appears that after the plaintiff alighted
from the train the car moved forward possibly six meters before it
came to a full stop.
The accident occurred between 7 and 8 o'clock on a dark
night, and as the railroad station was lighted dimly by a single
light located some distance away, objects on the platform where
the accident occurred were difficult to discern especially to a
person emerging from a lighted car.
The explanation of the presence of a sack of melons on the
platform where the plaintiff alighted is found in the fact that it
was the customary season for harvesting these melons and a
large lot had been brought to the station for the shipment to the
market. They were contained in numerous sacks which has been
piled on the platform in a row one upon another. The testimony
shows that this row of sacks was so placed of melons and the
edge of platform; and it is clear that the fall of the plaintiff was
due to the fact that his foot alighted upon one of these melons at
the moment he stepped upon the platform. His statement that he
failed to see these objects in the darkness is readily to be
credited.
The plaintiff was drawn from under the car in an
unconscious condition, and it appeared that the injuries which he
had received were very serious. He was therefore brought at once
to a certain hospital in the city of Manila where an examination
was made and his arm was amputated. The result of this
operation was unsatisfactory, and the plaintiff was then carried to
another hospital where a second operation was performed and
the member was again amputated higher up near the shoulder. It
appears in evidence that the plaintiff expended the sum of
P790.25 in the form of medical and surgical fees and for other
expenses in connection with the process of his curation.
Upon August 31, 1915, he instituted this proceeding in the
Court of First Instance of the city of Manila to recover damages of
the defendant company, founding his action upon the negligence
of the servants and employees of the defendant in placing the
sacks of melons upon the platform and leaving them so placed as
to be a menace to the security of passenger alighting from the
company's trains. At the hearing in the Court of First Instance,
his Honor, the trial judge, found the facts substantially as above
stated, and drew therefrom his conclusion to the effect that,
although negligence was attributable to the defendant by reason
of the fact that the sacks of melons were so placed as to obstruct
passengers passing to and from the cars, nevertheless, the
plaintiff himself had failed to use due caution in alighting from
the coach and was therefore precluded form recovering.
Judgment was accordingly entered in favor of the defendant
company, and the plaintiff appealed.
It can not be doubted that the employees of the railroad
company were guilty of negligence in piling these sacks on the
platform in the manner above stated; that their presence caused
the plaintiff to fall as he alighted from the train; and that they
therefore constituted an effective legal cause of the injuries
sustained by the plaintiff. It necessarily follows that the
defendant company is liable for the damage thereby occasioned
unless recovery is barred by the plaintiff's own contributory
negligence. In resolving this problem it is necessary that each of
these conceptions of liability, to-wit, the primary responsibility of
the defendant company and the contributory negligence of the
plaintiff should be separately examined.
It is important to note that the foundation of the legal
liability of the defendant is the contract of carriage, and that the
obligation to respond for the damage which plaintiff has suffered
arises, if at all, from the breach of that contract by reason of the
failure of defendant to exercise due care in its performance. That
is to say, its liability is direct and immediate, differing essentially,
in legal viewpoint from that presumptive responsibility for the
negligence of its servants, imposed by article 1903 of the Civil
Code, which can be rebutted by proof of the exercise of due care
in their selection and supervision. Article 1903 of the Civil Code is
not applicable to obligations arising ex contractu, but only to
extra-contractual obligations or to use the technical form of
expression, that article relates only to culpa aquiliana and not
to culpa contractual.
Manresa (vol. 8, p. 67) in his commentaries upon articles
1103 and 1104 of the Civil Code, clearly points out this
distinction, which was also recognized by this Court in its
decision in the case of Rakes vs. Atlantic, Gulf and Pacific Co. (7
Phil. rep., 359). In commenting upon article 1093 Manresa clearly
points out the difference between "culpa, substantive and
independent, which of itself constitutes the source of an
obligation between persons not formerly connected by any legal
tie" and culpa considered as an accident in the performance of an
obligation already existing . . . ."
In the Rakes case (supra) the decision of this court was
made to rest squarely upon the proposition that article 1903 of
the Civil Code is not applicable to acts of negligence which
constitute the breach of a contract.
Upon this point the Court said:
The acts to which these articles [1902 and 1903
of the Civil Code] are applicable are understood to be
those not growing out of pre-existing duties of the
parties to one another. But where relations already
formed give rise to duties, whether springing from
contract or quasi-contract, then breaches of those
duties are subject to article 1101, 1103, and 1104 of
the same code. (Rakes vs. Atlantic, Gulf and Pacific Co.,
7 Phil. Rep., 359 at 365.)
This distinction is of the utmost importance. The liability,
which, under the Spanish law, is, in certain cases imposed upon
employers with respect to damages occasioned by the negligence
of their employees to persons to whom they are not bound by
contract, is not based, as in the English Common Law, upon the
principle ofrespondeat superior if it were, the master would be
liable in every case and unconditionally but upon the principle
announced in article 1902 of the Civil Code, which imposes upon
all persons who by their fault or negligence, do injury to another,
the obligation of making good the damage caused. One who
places a powerful automobile in the hands of a servant whom he
knows to be ignorant of the method of managing such a vehicle,
is himself guilty of an act of negligence which makes him liable
for all the consequences of his imprudence. The obligation to
make good the damage arises at the very instant that the
unskillful servant, while acting within the scope of his
employment causes the injury. The liability of the master is
personal and direct. But, if the master has not been guilty of any
negligence whatever in the selection and direction of the servant,
he is not liable for the acts of the latter, whatever done within the
scope of his employment or not, if the damage done by the
servant does not amount to a breach of the contract between the
master and the person injured.
It is not accurate to say that proof of diligence and care in
the selection and control of the servant relieves the master from
liability for the latter's acts on the contrary, that proof shows
that the responsibility has never existed. As Manresa says (vol. 8,
p. 68) the liability arising from extra-contractual culpa is always
based upon a voluntary act or omission which, without willful
intent, but by mere negligence or inattention, has caused damage
to another. A master who exercises all possible care in the
selection of his servant, taking into consideration the
qualifications they should possess for the discharge of the duties
which it is his purpose to confide to them, and directs them with
equal diligence, thereby performs his duty to third persons to
whom he is bound by no contractual ties, and he incurs no
liability whatever if, by reason of the negligence of his servants,
even within the scope of their employment, such third person
suffer damage. True it is that under article 1903 of the Civil Code

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Karen Rizel B. Abella
the law creates a presumption that he has been negligent in the
selection or direction of his servant, but the presumption is
rebuttable and yield to proof of due care and diligence in this
respect.
The supreme court of Porto Rico, in interpreting identical
provisions, as found in the Porto Rico Code, has held that these
articles are applicable to cases of extra-
contractual culpa exclusively. (Carmona vs. Cuesta, 20 Porto Rico
Reports, 215.)
This distinction was again made patent by this Court in its
decision in the case of Bahia vs. Litonjua and Leynes, (30 Phil.
rep., 624), which was an action brought upon the theory of the
extra-contractual liability of the defendant to respond for the
damage caused by the carelessness of his employee while acting
within the scope of his employment. The Court, after citing the
last paragraph of article 1903 of the Civil Code, said:
From this article two things are apparent: (1)
That when an injury is caused by the negligence of a
servant or employee there instantly arises a
presumption of law that there was negligence on the
part of the master or employer either in selection of the
servant or employee, or in supervision over him after
the selection, or both; and (2) that that presumption
is juris tantum and not juris et de jure, and
consequently, may be rebutted. It follows necessarily
that if the employer shows to the satisfaction of the
court that in selection and supervision he has exercised
the care and diligence of a good father of a family, the
presumption is overcome and he is relieved from
liability.
This theory bases the responsibility of the master
ultimately on his own negligence and not on that of his
servant. This is the notable peculiarity of the Spanish
law of negligence. It is, of course, in striking contrast to
the American doctrine that, in relations with strangers,
the negligence of the servant in conclusively the
negligence of the master.
The opinion there expressed by this Court, to the effect
that in case of extra-contractual culpa based upon negligence, it
is necessary that there shall have been some fault attributable to
the defendant personally, and that the last paragraph of article
1903 merely establishes a rebuttable presumption, is in complete
accord with the authoritative opinion of Manresa, who says (vol.
12, p. 611) that the liability created by article 1903 is imposed by
reason of the breach of the duties inherent in the special relations
of authority or superiority existing between the person called
upon to repair the damage and the one who, by his act or
omission, was the cause of it.
On the other hand, the liability of masters and employers
for the negligent acts or omissions of their servants or agents,
when such acts or omissions cause damages which amount to
the breach of a contact, is not based upon a mere presumption of
the master's negligence in their selection or control, and proof of
exercise of the utmost diligence and care in this regard does not
relieve the master of his liability for the breach of his contract.
Every legal obligation must of necessity be extra-
contractual or contractual. Extra-contractual obligation has its
source in the breach or omission of those mutual duties which
civilized society imposes upon it members, or which arise from
these relations, other than contractual, of certain members of
society to others, generally embraced in the concept of status. The
legal rights of each member of society constitute the measure of
the corresponding legal duties, mainly negative in character,
which the existence of those rights imposes upon all other
members of society. The breach of these general duties whether
due to willful intent or to mere inattention, if productive of injury,
give rise to an obligation to indemnify the injured party. The
fundamental distinction between obligations of this character and
those which arise from contract, rests upon the fact that in cases
of non-contractual obligation it is the wrongful or negligent act or
omission itself which creates the vinculum juris, whereas in
contractual relations the vinculum exists independently of the
breach of the voluntary duty assumed by the parties when
entering into the contractual relation.
With respect to extra-contractual obligation arising from
negligence, whether of act or omission, it is competent for the
legislature to elect and our Legislature has so elected whom
such an obligation is imposed is morally culpable, or, on the
contrary, for reasons of public policy, to extend that liability,
without regard to the lack of moral culpability, so as to include
responsibility for the negligence of those person who acts or
mission are imputable, by a legal fiction, to others who are in a
position to exercise an absolute or limited control over them. The
legislature which adopted our Civil Code has elected to limit
extra-contractual liability with certain well-defined exceptions
to cases in which moral culpability can be directly imputed to
the persons to be charged. This moral responsibility may consist
in having failed to exercise due care in the selection and control of
one's agents or servants, or in the control of persons who, by
reason of their status, occupy a position of dependency with
respect to the person made liable for their conduct.
The position of a natural or juridical person who has
undertaken by contract to render service to another, is wholly
different from that to which article 1903 relates. When the
sources of the obligation upon which plaintiff's cause of action
depends is a negligent act or omission, the burden of proof rests
upon plaintiff to prove the negligence if he does not his action
fails. But when the facts averred show a contractual undertaking
by defendant for the benefit of plaintiff, and it is alleged that
plaintiff has failed or refused to perform the contract, it is not
necessary for plaintiff to specify in his pleadings whether the
breach of the contract is due to willful fault or to negligence on
the part of the defendant, or of his servants or agents. Proof of the
contract and of its nonperformance is sufficient prima facie to
warrant a recovery.
As a general rule . . . it is logical that in case of
extra-contractual culpa, a suing creditor should assume
the burden of proof of its existence, as the only fact
upon which his action is based; while on the contrary,
in a case of negligence which presupposes the existence
of a contractual obligation, if the creditor shows that it
exists and that it has been broken, it is not necessary
for him to prove negligence. (Manresa, vol. 8, p. 71
[1907 ed., p. 76]).
As it is not necessary for the plaintiff in an action for the
breach of a contract to show that the breach was due to the
negligent conduct of defendant or of his servants, even though
such be in fact the actual cause of the breach, it is obvious that
proof on the part of defendant that the negligence or omission of
his servants or agents caused the breach of the contract would
not constitute a defense to the action. If the negligence of
servants or agents could be invoked as a means of discharging
the liability arising from contract, the anomalous result would be
that person acting through the medium of agents or servants in
the performance of their contracts, would be in a better position
than those acting in person. If one delivers a valuable watch to
watchmaker who contract to repair it, and the bailee, by a
personal negligent act causes its destruction, he is
unquestionably liable. Would it be logical to free him from his
liability for the breach of his contract, which involves the duty to
exercise due care in the preservation of the watch, if he shows
that it was his servant whose negligence caused the injury? If
such a theory could be accepted, juridical persons would enjoy
practically complete immunity from damages arising from the
breach of their contracts if caused by negligent acts as such
juridical persons can of necessity only act through agents or
servants, and it would no doubt be true in most instances that
reasonable care had been taken in selection and direction of such
servants. If one delivers securities to a banking corporation as
collateral, and they are lost by reason of the negligence of some
clerk employed by the bank, would it be just and reasonable to
permit the bank to relieve itself of liability for the breach of its
contract to return the collateral upon the payment of the debt by
proving that due care had been exercised in the selection and
direction of the clerk?
This distinction between culpa aquiliana, as the source of
an obligation, and culpa contractual as a mere incident to the
performance of a contract has frequently been recognized by the
supreme court of Spain. (Sentencias of June 27, 1894; November
20, 1896; and December 13, 1896.) In the decisions of November
20, 1896, it appeared that plaintiff's action arose ex contractu, but
that defendant sought to avail himself of the provisions of article
1902 of the Civil Code as a defense. The Spanish Supreme Court
rejected defendant's contention, saying:
These are not cases of injury caused, without any
pre-existing obligation, by fault or negligence, such as
those to which article 1902 of the Civil Code relates, but
of damages caused by the defendant's failure to carry
out the undertakings imposed by the contracts . . . .
A brief review of the earlier decision of this court involving
the liability of employers for damage done by the negligent acts of
their servants will show that in no case has the court ever
decided that the negligence of the defendant's servants has been
held to constitute a defense to an action for damages for breach of
contract.

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Karen Rizel B. Abella
In the case of Johnson vs. David (5 Phil. Rep., 663), the
court held that the owner of a carriage was not liable for the
damages caused by the negligence of his driver. In that case the
court commented on the fact that no evidence had been adduced
in the trial court that the defendant had been negligent in the
employment of the driver, or that he had any knowledge of his
lack of skill or carefulness.
In the case of Baer Senior & Co's Successors vs. Compania
Maritima (6 Phil. Rep., 215), the plaintiff sued the defendant for
damages caused by the loss of a barge belonging to plaintiff which
was allowed to get adrift by the negligence of defendant's servants
in the course of the performance of a contract of towage. The
court held, citing Manresa (vol. 8, pp. 29, 69) that if the
"obligation of the defendant grew out of a contract made between
it and the plaintiff . . . we do not think that the provisions of
articles 1902 and 1903 are applicable to the case."
In the case of Chapman vs. Underwood (27 Phil. Rep.,
374), plaintiff sued the defendant to recover damages for the
personal injuries caused by the negligence of defendant's
chauffeur while driving defendant's automobile in which
defendant was riding at the time. The court found that the
damages were caused by the negligence of the driver of the
automobile, but held that the master was not liable, although he
was present at the time, saying:
. . . unless the negligent acts of the driver are
continued for a length of time as to give the owner a
reasonable opportunity to observe them and to direct
the driver to desist therefrom. . . . The act complained of
must be continued in the presence of the owner for
such length of time that the owner by his acquiescence,
makes the driver's acts his own.
In the case of Yamada vs. Manila Railroad Co. and
Bachrach Garage & Taxicab Co. (33 Phil. Rep., 8), it is true that
the court rested its conclusion as to the liability of the defendant
upon article 1903, although the facts disclosed that the injury
complaint of by plaintiff constituted a breach of the duty to him
arising out of the contract of transportation. The express ground
of the decision in this case was that article 1903, in dealing with
the liability of a master for the negligent acts of his servants
"makes the distinction between private individuals and public
enterprise;" that as to the latter the law creates a rebuttable
presumption of negligence in the selection or direction of
servants; and that in the particular case the presumption of
negligence had not been overcome.
It is evident, therefore that in its decision Yamada case, the
court treated plaintiff's action as though founded in tort rather
than as based upon the breach of the contract of carriage, and an
examination of the pleadings and of the briefs shows that the
questions of law were in fact discussed upon this theory. Viewed
from the standpoint of the defendant the practical result must
have been the same in any event. The proof disclosed beyond
doubt that the defendant's servant was grossly negligent and that
his negligence was the proximate cause of plaintiff's injury. It also
affirmatively appeared that defendant had been guilty of
negligence in its failure to exercise proper discretion in the
direction of the servant. Defendant was, therefore, liable for the
injury suffered by plaintiff, whether the breach of the duty were to
be regarded as constituting culpa aquiliana or culpa contractual.
As Manresa points out (vol. 8, pp. 29 and 69) whether negligence
occurs an incident in the course of the performance of a
contractual undertaking or its itself the source of an extra-
contractual undertaking obligation, its essential characteristics
are identical. There is always an act or omission productive of
damage due to carelessness or inattention on the part of the
defendant. Consequently, when the court holds that a defendant
is liable in damages for having failed to exercise due care, either
directly, or in failing to exercise proper care in the selection and
direction of his servants, the practical result is identical in either
case. Therefore, it follows that it is not to be inferred, because the
court held in the Yamada case that defendant was liable for the
damages negligently caused by its servants to a person to whom
it was bound by contract, and made reference to the fact that the
defendant was negligent in the selection and control of its
servants, that in such a case the court would have held that it
would have been a good defense to the action, if presented
squarely upon the theory of the breach of the contract, for
defendant to have proved that it did in fact exercise care in the
selection and control of the servant.
The true explanation of such cases is to be found by
directing the attention to the relative spheres of contractual and
extra-contractual obligations. The field of non- contractual
obligation is much more broader than that of contractual
obligations, comprising, as it does, the whole extent of juridical
human relations. These two fields, figuratively speaking,
concentric; that is to say, the mere fact that a person is bound to
another by contract does not relieve him from extra-contractual
liability to such person. When such a contractual relation exists
the obligor may break the contract under such conditions that
the same act which constitutes the source of an extra-contractual
obligation had no contract existed between the parties.
The contract of defendant to transport plaintiff carried with
it, by implication, the duty to carry him in safety and to provide
safe means of entering and leaving its trains (civil code, article
1258). That duty, being contractual, was direct and immediate,
and its non-performance could not be excused by proof that the
fault was morally imputable to defendant's servants.
The railroad company's defense involves the assumption
that even granting that the negligent conduct of its servants in
placing an obstruction upon the platform was a breach of its
contractual obligation to maintain safe means of approaching and
leaving its trains, the direct and proximate cause of the injury
suffered by plaintiff was his own contributory negligence in failing
to wait until the train had come to a complete stop before
alighting. Under the doctrine of comparative negligence
announced in the Rakes case (supra), if the accident was caused
by plaintiff's own negligence, no liability is imposed upon
defendant's negligence and plaintiff's negligence merely
contributed to his injury, the damages should be apportioned. It
is, therefore, important to ascertain if defendant was in fact guilty
of negligence.
It may be admitted that had plaintiff waited until the train
had come to a full stop before alighting, the particular injury
suffered by him could not have occurred. Defendant contends,
and cites many authorities in support of the contention, that it is
negligence per se for a passenger to alight from a moving train.
We are not disposed to subscribe to this doctrine in its absolute
form. We are of the opinion that this proposition is too badly
stated and is at variance with the experience of every-day life. In
this particular instance, that the train was barely moving when
plaintiff alighted is shown conclusively by the fact that it came to
stop within six meters from the place where he stepped from it.
Thousands of person alight from trains under these conditions
every day of the year, and sustain no injury where the company
has kept its platform free from dangerous obstructions. There is
no reason to believe that plaintiff would have suffered any injury
whatever in alighting as he did had it not been for defendant's
negligent failure to perform its duty to provide a safe alighting
place.
We are of the opinion that the correct doctrine relating to
this subject is that expressed in Thompson's work on Negligence
(vol. 3, sec. 3010) as follows:
The test by which to determine whether the
passenger has been guilty of negligence in attempting to
alight from a moving railway train, is that of ordinary or
reasonable care. It is to be considered whether an
ordinarily prudent person, of the age, sex and condition
of the passenger, would have acted as the passenger
acted under the circumstances disclosed by the
evidence. This care has been defined to be, not the care
which may or should be used by the prudent man
generally, but the care which a man of ordinary
prudence would use under similar circumstances, to
avoid injury." (Thompson, Commentaries on Negligence,
vol. 3, sec. 3010.)
Or, it we prefer to adopt the mode of exposition used by
this court in Picart vs. Smith (37 Phil. rep., 809), we may say that
the test is this; Was there anything in the circumstances
surrounding the plaintiff at the time he alighted from the train
which would have admonished a person of average prudence that
to get off the train under the conditions then existing was
dangerous? If so, the plaintiff should have desisted from
alighting; and his failure so to desist was contributory
negligence.1awph!l.net
As the case now before us presents itself, the only fact from
which a conclusion can be drawn to the effect that plaintiff was
guilty of contributory negligence is that he stepped off the car
without being able to discern clearly the condition of the platform
and while the train was yet slowly moving. In considering the
situation thus presented, it should not be overlooked that the
plaintiff was, as we find, ignorant of the fact that the obstruction
which was caused by the sacks of melons piled on the platform
existed; and as the defendant was bound by reason of its duty as
a public carrier to afford to its passengers facilities for safe egress
from its trains, the plaintiff had a right to assume, in the absence
of some circumstance to warn him to the contrary, that the
platform was clear. The place, as we have already stated, was
dark, or dimly lighted, and this also is proof of a failure upon the
part of the defendant in the performance of a duty owing by it to
the plaintiff; for if it were by any possibility concede that it had
right to pile these sacks in the path of alighting passengers, the

4
Karen Rizel B. Abella
placing of them adequately so that their presence would be
revealed.
As pertinent to the question of contributory negligence on
the part of the plaintiff in this case the following circumstances
are to be noted: The company's platform was constructed upon a
level higher than that of the roadbed and the surrounding
ground. The distance from the steps of the car to the spot where
the alighting passenger would place his feet on the platform was
thus reduced, thereby decreasing the risk incident to stepping off.
The nature of the platform, constructed as it was of cement
material, also assured to the passenger a stable and even surface
on which to alight. Furthermore, the plaintiff was possessed of
the vigor and agility of young manhood, and it was by no means
so risky for him to get off while the train was yet moving as the
same act would have been in an aged or feeble person. In
determining the question of contributory negligence in performing
such act that is to say, whether the passenger acted prudently
or recklessly the age, sex, and physical condition of the
passenger are circumstances necessarily affecting the safety of
the passenger, and should be considered. Women, it has been
observed, as a general rule are less capable than men of alighting
with safety under such conditions, as the nature of their wearing
apparel obstructs the free movement of the limbs. Again, it may
be noted that the place was perfectly familiar to the plaintiff as it
was his daily custom to get on and of the train at this station.
There could, therefore, be no uncertainty in his mind with regard
either to the length of the step which he was required to take or
the character of the platform where he was alighting. Our
conclusion is that the conduct of the plaintiff in undertaking to
alight while the train was yet slightly under way was not
characterized by imprudence and that therefore he was not guilty
of contributory negligence.
The evidence shows that the plaintiff, at the time of the
accident, was earning P25 a month as a copyist clerk, and that
the injuries he has suffered have permanently disabled him from
continuing that employment. Defendant has not shown that any
other gainful occupation is open to plaintiff. His expectancy of
life, according to the standard mortality tables, is approximately
thirty-three years. We are of the opinion that a fair compensation
for the damage suffered by him for his permanent disability is the
sum of P2,500, and that he is also entitled to recover of defendant
the additional sum of P790.25 for medical attention, hospital
services, and other incidental expenditures connected with the
treatment of his injuries.
The decision of lower court is reversed, and judgment is
hereby rendered plaintiff for the sum of P3,290.25, and for the
costs of both instances. So ordered.
G.R. No. L-25172 May 24, 1974
LUIS MA. ARANETA, petitioner,
vs.
ANTONIO R. DE JOYA, respondent.
Petition for review of the decision of the Court of Appeals in CA-
G.R. 34277-R ordering Luis Ma. Araneta (hereinafter referred to
as the petitioner) to indemnify Antonio R. de Joya (hereinafter
referred to as the respondent) for one-third of the sum of
P5,043.20 which the latter was adjudged to pay the Ace
Advertising Agency, Inc., the plaintiff in the recovery suit below.
Sometime in November 1952 the respondent, then general
manager of the Ace Advertising, proposed to the board of
directors
1
that an employee, Ricardo Taylor, be sent to the United
States to take up special studies in television. The board,
however, failed to act on the proposal. Nevertheless, in September
1953 the respondent sent Taylor abroad. J. Antonio Araneta, a
company director, inquired about the trip and was assured by the
respondent that Taylor's expenses would be defrayed not by the
company but by other parties. This was thereafter confirmed by
the respondent in a memorandum.
While abroad, from September 1, 1953 to March 15, 1954, Taylor
continued to receive his salaries. The items corresponding to his
salaries appeared in vouchers prepared upon the orders of, and
approved by, the respondent and were included in the semi-
monthly payroll checks for the employees of the corporation. The
petitioner signed three of these checks on November 27,
December 15 and December 29, 1953. The others were signed by
either the respondent, or Vicente Araneta (company treasurer)
who put up part of the bill connected with Taylor's trip and also
handed him letters for delivery in the United States. The Ace
Advertising disbursed P5,043.20, all told, on account of Taylor's
travel and studies.
On August 23, 1954 the Ace Advertising filed a complaint with
the court of first instance of Manila against the respondent for
recovery of the total sum disbursed to Taylor, alleging that the
trip was made without its knowledge, authority or ratification.
The respondent, in his answer, denied the charge and claimed
that the trip was nonetheless ratified by the company's board of
directors, and that in any event under the by-laws he had the
discretion, as general manager, to authorize the trip which was
for the company's benefit..
A 3rd-party complaint was also filed by the respondent against
Vicente Araneta, the petitioner and Ricardo Taylor. The
respondent proved that Vicente Araneta, as treasurer of the firm,
signed a check representing the company's share of the
transportation expense of Taylor to the United States, and that a
series of payroll checks from September 15, 1953 to December
31, 1953, inclusive, which included the salaries of Taylor, was
signed by Vicente Araneta and the petitioner who is a vice-
president of the company. Both Aranetas disowned any personal
liability, claiming that they signed the checks in good faith as
they were approved by the respondent..
On April 13, 1964 the trial court rendered judgment ordering the
respondent to pay the Ace Advertising "the sum of P5,043.20 with
interest at the legal rate from August 23, 1954 until full
payment," and dismissing the 3rd-party complaint.
The respondent appealed to the Court of Appeals, which on
August 2, 1965, rendered a decision affirming the trial court's
judgment in favor of the Ace Advertising but reversing the
dismissal of the 3rd-party complaint. The appellate court found
as a fact that Taylor's trip had been neither authorized nor
ratified by the company.
The appellate court's full statement of its categorical and
unequivocal findings of fact on the nature and extent of the
participation of the petitioner as well as Vicente Araneta is
hereunder quoted:
The evidence not only is clear, but is even not disputed
at all by Vicente and Luis Araneta who neither of them
took the witness stand to refute appellant's evidence,
that as to Vicente it was to him that appellant first
broached the subject-matter of sending Taylor to
America, that Vicente Araneta evinced unusual interest,
and went to the extent of entrusting Taylor with letters
for delivery to certain principals of Gregorio Araneta,
Inc. in the United States, and he even signed the check
for P105.20 to cover expenses for his tax clearance,
documentary stamps and passport fees, in connection
with the trip, on 8 September, 1953, and then on 5
October, 1953, still another check for P868.00 which
was half the amount for his plane ticket; and as to Luis
Araneta, it not at all being disputed that when Taylor
was already in America, his salaries while abroad were
paid on vouchers and checks signed either by him or by
Vicente, or by appellant himself; because of all these,
the conclusion is forced upon this Court that it could
not but have been but that both Vicente and Luis were
informed and gave their approval to Taylor's trip, and to
the payment of his trip expenses and salaries during his
absence, from corporate funds; if this was the case as it
was, there can be no question but that they two were
also privy to the unauthorized disbursement of the
corporate moneys jointly with the appellant; what had
happened was in truth and in fact a venture by them
given their stamp of approval; and as it was an
unauthorized act of expenditure of corporate funds, and
it was these three without whose acts the same could
not have happened, the juridical situation was a simple
quasi-delict by them committed upon the corporation,
for which solidary liability should have been imposed
upon all in the first place, Art. 2194, New Civil Code;
and only De Joya having been sued and made liable by
the corporation, it was the right of the latter to ask that
his two joint tortfeasors be made to shoulder their
proportional responsibility. (emphasis supplied)
The basic legal issue is whether the petitioner is guilty of a quasi-
delict as held below.
It is our view, and we so hold, that the judgment of the Court of
Appeals should be upheld. The petitioner's assertion that he
signed the questioned payroll checks in good faith has not been
substantiated, he in particular not having testified or offered
testimony to prove such claim. Upon the contrary, in spite of his
being a vice-president and director of the Ace Advertising, the
petitioner remained passive, throughout the period of Taylor's
stay abroad, concerning the unauthorized disbursements of
corporate funds for the latter. This plus the fact that he even
approved thrice payroll checks for the payment of Taylor's salary,
demonstrate quite distinctly that the petitioner neglected to

5
Karen Rizel B. Abella
perform his duties properly, to the damage of the firm of which he
was an officer. The fact that he was occupying a contractual
position at the Ace Advertising is of no moment. The existence of
a contract between the parties, as has been repeatedly held by
this Court, constitutes no bar to the commission of a tort by one
against the other and the consequent recovery of damages.
2

ACCORDINGLY, the judgment of the Court of Appeals is affirmed,
at petitioner's cost.
G.R. No. L-48006 July 8, 1942
FAUSTO BARREDO, petitioner,
vs.
SEVERINO GARCIA and TIMOTEA ALMARIO, respondents.
This case comes up from the Court of Appeals which held the
petitioner herein, Fausto Barredo, liable in damages for the death
of Faustino Garcia caused by the negligence of Pedro Fontanilla, a
taxi driver employed by said Fausto Barredo.
At about half past one in the morning of May 3, 1936, on the road
between Malabon and Navotas, Province of Rizal, there was a
head-on collision between a taxi of the Malate Taxicab driven by
Pedro Fontanilla and a carretela guided by Pedro Dimapalis. The
carretela was overturned, and one of its passengers, 16-year-old
boy Faustino Garcia, suffered injuries from which he died two
days later. A criminal action was filed against Fontanilla in the
Court of First Instance of Rizal, and he was convicted and
sentenced to an indeterminate sentence of one year and one day
to two years of prision correccional. The court in the criminal case
granted the petition that the right to bring a separate civil action
be reserved. The Court of Appeals affirmed the sentence of the
lower court in the criminal case. Severino Garcia and Timotea
Almario, parents of the deceased on March 7, 1939, brought an
action in the Court of First Instance of Manila against Fausto
Barredo as the sole proprietor of the Malate Taxicab and employer
of Pedro Fontanilla. On July 8, 1939, the Court of First Instance
of Manila awarded damages in favor of the plaintiffs for P2,000
plus legal interest from the date of the complaint. This decision
was modified by the Court of Appeals by reducing the damages to
P1,000 with legal interest from the time the action was instituted.
It is undisputed that Fontanilla 's negligence was the cause of the
mishap, as he was driving on the wrong side of the road, and at
high speed. As to Barredo's responsibility, the Court of Appeals
found:
... It is admitted that defendant is Fontanilla's employer.
There is proof that he exercised the diligence of a good
father of a family to prevent damage. (See p. 22,
appellant's brief.) In fact it is shown he was careless in
employing Fontanilla who had been caught several
times for violation of the Automobile Law and speeding
(Exhibit A) violation which appeared in the records of
the Bureau of Public Works available to be public and
to himself. Therefore, he must indemnify plaintiffs
under the provisions of article 1903 of the Civil Code.
The main theory of the defense is that the liability of Fausto
Barredo is governed by the Revised Penal Code; hence, his
liability is only subsidiary, and as there has been no civil action
against Pedro Fontanilla, the person criminally liable, Barredo
cannot be held responsible in the case. The petitioner's brief
states on page 10:
... The Court of Appeals holds that the petitioner is
being sued for his failure to exercise all the diligence of
a good father of a family in the selection and
supervision of Pedro Fontanilla to prevent damages
suffered by the respondents. In other words, The Court
of Appeals insists on applying in the case article 1903 of
the Civil Code. Article 1903 of the Civil Code is found in
Chapter II, Title 16, Book IV of the Civil Code. This fact
makes said article to a civil liability arising from a crime
as in the case at bar simply because Chapter II of Title
16 of Book IV of the Civil Code, in the precise words of
article 1903 of the Civil Code itself, is applicable only to
"those (obligations) arising from wrongful or negligent
acts or commission not punishable by law.
The gist of the decision of the Court of Appeals is expressed thus:
... We cannot agree to the defendant's contention. The
liability sought to be imposed upon him in this action is
not a civil obligation arising from a felony or a
misdemeanor (the crime of Pedro Fontanilla,), but an
obligation imposed in article 1903 of the Civil Code by
reason of his negligence in the selection or supervision
of his servant or employee.
The pivotal question in this case is whether the plaintiffs may
bring this separate civil action against Fausto Barredo, thus
making him primarily and directly, responsible under article 1903
of the Civil Code as an employer of Pedro Fontanilla. The
defendant maintains that Fontanilla's negligence being
punishable by the Penal Code, his (defendant's) liability as an
employer is only subsidiary, according to said Penal code, but
Fontanilla has not been sued in a civil action and his property
has not been exhausted. To decide the main issue, we must cut
through the tangle that has, in the minds of many confused and
jumbled together delitos and cuasi delitos, or crimes under the
Penal Code and fault or negligence under articles 1902-1910 of
the Civil Code. This should be done, because justice may be lost
in a labyrinth, unless principles and remedies are distinctly
envisaged. Fortunately, we are aided in our inquiry by the
luminous presentation of the perplexing subject by renown jurists
and we are likewise guided by the decisions of this Court in
previous cases as well as by the solemn clarity of the
consideration in several sentences of the Supreme Tribunal of
Spain.
Authorities support the proposition that a quasi-delict or "culpa
aquiliana " is a separate legal institution under the Civil Code
with a substantivity all its own, and individuality that is entirely
apart and independent from delict or crime. Upon this principle
and on the wording and spirit article 1903 of the Civil Code, the
primary and direct responsibility of employers may be safely
anchored.
The pertinent provisions of the Civil Code and Revised Penal Code
are as follows:
CIVIL CODE
ART. 1089 Obligations arise from law, from contracts
and quasi-contracts, and from acts and omissions
which are unlawful or in which any kind of fault or
negligence intervenes.
x x x x x x x x x
ART. 1092. Civil obligations arising from felonies or
misdemeanors shall be governed by the provisions of
the Penal Code.
ART. 1093. Those which are derived from acts or
omissions in which fault or negligence, not punishable
by law, intervenes shall be subject to the provisions of
Chapter II, Title XVI of this book.
ART 1902. Any person who by an act or omission
causes damage to another by his fault or negligence
shall be liable for the damage so done.
ART. 1903. The obligation imposed by the next
preceding article is enforcible, not only for personal acts
and omissions, but also for those of persons for whom
another is responsible.
The father and in, case of his death or incapacity, the
mother, are liable for any damages caused by the minor
children who live with them.
Guardians are liable for damages done by minors or
incapacitated persons subject to their authority and
living with them.
Owners or directors of an establishment or business are
equally liable for any damages caused by their
employees while engaged in the branch of the service in
which employed, or on occasion of the performance of
their duties.
The State is subject to the same liability when it acts
through a special agent, but not if the damage shall
have been caused by the official upon whom properly
devolved the duty of doing the act performed, in which
case the provisions of the next preceding article shall be
applicable.
Finally, teachers or directors of arts trades are liable for
any damages caused by their pupils or apprentices
while they are under their custody.

6
Karen Rizel B. Abella
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.
x x x x x x x x x
ART. 365. Imprudence and negligence. Any person
who, by reckless imprudence, shall commit any act
which, had it been intentional, would constitute a grave
felony, shall suffer the penalty of arresto mayor in its
maximum period to prision correccional in its minimum
period; if it would have constituted a less grave felony,
the penalty of arresto mayor in its minimum and
medium periods shall be imposed.
Any person who, by simple imprudence or negligence,
shall commit an act which would otherwise constitute a
grave felony, shall suffer the penalty of arresto mayor in
its medium and maximum periods; if it would have
constituted a less serious felony, the penalty of arresto
mayor in its minimum period shall be imposed."
It will thus be seen that while the terms of articles 1902 of the
Civil Code seem to be broad enough to cover the driver's
negligence in the instant case, nevertheless article 1093
limits cuasi-delitos to acts or omissions "not punishable by law."
But inasmuch as article 365 of the Revised Penal Code punishes
not only reckless but even simple imprudence or negligence, the
fault or negligence under article 1902 of the Civil Code has
apparently been crowded out. It is this overlapping that makes
the "confusion worse confounded." However, a closer study shows
that such a concurrence of scope in regard to negligent acts does
not destroy the distinction between the civil liability arising from
a crime and the responsibility for cuasi-delitos or culpa extra-
contractual. The same negligent act causing damages may
produce civil liability arising from a crime under article 100 of the
Revised Penal Code, or create an action for cuasi-delito or culpa
extra-contractual under articles 1902-1910 of the Civil Code.
The individuality of cuasi-delito or culpa extra-contractual looms
clear and unmistakable. This legal institution is of ancient
lineage, one of its early ancestors being the Lex Aquilia in the
Roman Law. In fact, in Spanish legal terminology, this
responsibility is often referred to as culpa aquiliana. The Partidas
also contributed to the genealogy of the present fault or
negligence under the Civil Code; for instance, Law 6, Title 15, of
Partida 7, says: "Tenudo es de fazer emienda, porque, como quier
que el non fizo a sabiendas en dao al otro, pero acaescio por su
culpa."
The distinctive nature of cuasi-delitos survives in the Civil Code.
According to article 1089, one of the five sources of obligations is
this legal institution of cuasi-delito or culpa extra-contractual: "los
actos . . . en que intervenga cualquier genero de culpa o
negligencia." Then article 1093 provides that this kind of
obligation shall be governed by Chapter II of Title XVI of Book IV,
meaning articles 1902-0910. This portion of the Civil Code is
exclusively devoted to the legal institution of culpa aquiliana.
Some of the differences between crimes under the Penal Code and
the culpa aquiliana or cuasi-delito under the Civil Code are:
1. That crimes affect the public interest, while cuasi-delitos are
only of private concern.
2. That, consequently, the Penal Code punishes or corrects the
criminal act, while the Civil Code, by means of indemnification,
merely repairs the damage.
3. That delicts are not as broad as quasi-delicts, because the
former are punished only if there is a penal law clearly covering
them, while the latter, cuasi-delitos, include all acts in which "any
king of fault or negligence intervenes." However, it should be
noted that not all violations of the penal law produce civil
responsibility, such as begging in contravention of ordinances,
violation of the game laws, infraction of the rules of traffic when
nobody is hurt. (See Colin and Capitant, "Curso Elemental de
Derecho Civil," Vol. 3, p. 728.)
Let us now ascertain what some jurists say on the separate
existence of quasi-delicts and the employer's primary and direct
liability under article 1903 of the Civil Code.
Dorado Montero in his essay on "Responsibilidad" in the
"Enciclopedia Juridica Espaola" (Vol. XXVII, p. 414) says:
El concepto juridico de la responsabilidad civil abarca
diversos aspectos y comprende a diferentes personas.

7
Karen Rizel B. Abella
Asi, existe una responsabilidad civil propiamente dicha,
que en ningun casl lleva aparejada responsabilidad
criminal alguna, y otra que es consecuencia
indeclinable de la penal que nace de todo delito o falta."
The juridical concept of civil responsibility has various
aspects and comprises different persons. Thus, there is
a civil responsibility, properly speaking, which in no
case carries with it any criminal responsibility, and
another which is a necessary consequence of the penal
liability as a result of every felony or misdemeanor."
Maura, an outstanding authority, was consulted on the following
case: There had been a collision between two trains belonging
respectively to the Ferrocarril Cantabrico and the Ferrocarril del
Norte. An employee of the latter had been prosecuted in a
criminal case, in which the company had been made a party as
subsidiarily responsible in civil damages. The employee had been
acquitted in the criminal case, and the employer, the Ferrocarril
del Norte, had also been exonerated. The question asked was
whether the Ferrocarril Cantabrico could still bring a civil action
for damages against the Ferrocarril del Norte. Maura's opinion
was in the affirmative, stating in part (Maura, Dictamenes, Vol. 6,
pp. 511-513):
Quedando las cosas asi, a proposito de la realidad pura
y neta de los hechos, todavia menos parece sostenible
que exista cosa juzgada acerca de la obligacion civil de
indemnizar los quebrantos y menoscabos inferidos por
el choque de los trenes. El titulo en que se funda la
accion para demandar el resarcimiento, no puede
confundirse con las responsabilidades civiles nacidas
de delito, siquiera exista en este, sea el cual sea,
una culpa rodeada de notas agravatorias que motivan
sanciones penales, mas o menos severas. La lesion
causada por delito o falta en los derechos civiles,
requiere restituciones, reparaciones o indemnizaciones,
que cual la pena misma ataen al orden publico; por tal
motivo vienen encomendadas, de ordinario, al
Ministerio Fiscal; y claro es que si por esta via se
enmiendan los quebrantos y menoscabos, el agraviado
excusa procurar el ya conseguido desagravio; pero esta
eventual coincidencia de los efectos, no borra la
diversidad originaria de las acciones civiles para pedir
indemnizacion.
Estas, para el caso actual (prescindiendo de
culpas contractuales, que no vendrian a cuento y que
tiene otro regimen), dimanan, segun el articulo 1902 del
Codigo Civil, de toda accion u omision, causante de
daos o perjuicios, en que intervenga culpa o
negligencia. Es trivial que acciones semejantes son
ejercitadas ante los Tribunales de lo civil
cotidianamente, sin que la Justicia punitiva tenga que
mezclarse en los asuntos. Los articulos 18 al 21 y 121
al 128 del Codigo Penal, atentos al espiritu y a los fines
sociales y politicos del mismo, desenvuelven y ordenan
la materia de responsabilidades civiles nacidas de
delito, en terminos separados del regimen por ley
comun de la culpa que se denomina aquiliana, por
alusion a precedentes legislativos del Corpus Juris.
Seria intempestivo un paralelo entre aquellas
ordenaciones, y la de la obligacion de indemnizar a
titulo de culpa civil; pero viene al caso y es necesaria
una de las diferenciaciones que en el tal paralelo se
notarian.
Los articulos 20 y 21 del Codigo Penal, despues de
distribuir a su modo las responsabilidades civiles, entre
los que sean por diversos conceptos culpables del delito
o falta, las hacen extensivas a las empresas y los
establecimientos al servicio de los cuales estan los
delincuentes; pero con caracter subsidiario, o sea,
segun el texto literal, en defecto de los que sean
responsables criminalmente. No coincide en ello el
Codigo Civil, cuyo articulo 1903, dice; La obligacion que
impone el articulo anterior es exigible, no solo por los
actos y omisiones propios, sino por los de aquellas
personas de quienes se debe responder; personas en la
enumeracion de las cuales figuran los dependientes y
empleados de los establecimientos o empresas, sea por
actos del servicio, sea con ocasion de sus funciones. Por
esto acontece, y se observa en la jurisprudencia, que las
empresas, despues de intervenir en las causas
criminales con el caracter subsidiario de su
responsabilidad civil por razon del delito, son
demandadas y condenadas directa y aisladamente,
cuando se trata de la obligacion, ante los tribunales
civiles.
Siendo como se ve, diverso el titulo de esta obligacion, y
formando verdadero postulado de nuestro regimen
judicial la separacion entre justicia punitiva y
tribunales de lo civil, de suerte que tienen unos y otros
normas de fondo en distintos cuerpos legales, y
diferentes modos de proceder, habiendose, por
aadidura, abstenido de asistir al juicio criminal la
Compaia del Ferrocarril Cantabrico, que se reservo
ejercitar sus acciones, parece innegable que la de
indemnizacion por los daos y perjuicios que le irrogo el
choque, no estuvo sub judice ante el Tribunal del
Jurado, ni fue sentenciada, sino que permanecio
intacta, al pronunciarse el fallo de 21 de marzo. Aun
cuando el veredicto no hubiese sido de inculpabilidad,
mostrose mas arriba, que tal accion quedaba
legitimamente reservada para despues del proceso; pero
al declararse que no existio delito, ni responsabilidad
dimanada de delito, materia unica sobre que tenian
jurisdiccion aquellos juzgadores, se redobla el motivo
para la obligacion civil ex lege, y se patentiza mas y mas
que la accion para pedir su cumplimiento permanece
incolume, extraa a la cosa juzgada.
As things are, apropos of the reality pure and simple of
the facts, it seems less tenable that there should beres
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 culpasurrounded
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
theobligation, before the civil courts.
Seeing that the title of this obligation is different, and
the separation between punitive justice and the civil
courts being a true postulate of our judicial system, so
that they have different fundamental norms in different
codes, as well as different modes of procedure, and
inasmuch as the Compaa del Ferrocarril Cantabrico
has abstained from taking part in the criminal case and
has reserved the right to exercise its actions, it seems

8
Karen Rizel B. Abella
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 Juradohad jurisdiction, there is greater
reason for the civil obligation ex lege, and it becomes
clearer that the action for its enforcement remain intact
and is not res judicata.
Laurent, a jurist who has written a monumental work on the
French Civil Code, on which the Spanish Civil Code is largely
based and whose provisions on cuasi-delito or culpa extra-
contractual are similar to those of the Spanish Civil Code, says,
referring to article 1384 of the French Civil Code which
corresponds to article 1903, Spanish Civil Code:
The action can be brought directly against the person
responsible (for another), without including the author
of the act. The action against the principal is accessory
in the sense that it implies the existence of a prejudicial
act committed by the employee, but it is not subsidiary
in the sense that it can not be instituted till after the
judgment against the author of the act or at least, that
it is subsidiary to the principal action; the action for
responsibility (of the employer) is in itself a principal
action. (Laurent, Principles of French Civil Law,
Spanish translation, Vol. 20, pp. 734-735.)
Amandi, in his "Cuestionario del Codigo Civil Reformado" (Vol. 4,
pp. 429, 430), declares that the responsibility of the employer is
principal and not subsidiary. He writes:
Cuestion 1. La responsabilidad declarada en el articulo
1903 por las acciones u omisiones de aquellas personas
por las que se debe responder, es subsidiaria? es
principal? Para contestar a esta pregunta es necesario
saber, en primer lugar, en que se funda el precepto
legal. Es que realmente se impone una responsabilidad
por una falta ajena? Asi parece a primera vista; pero
semejante afirmacion seria contraria a la justicia y a la
maxima universal, segun la que las faltas son
personales, y cada uno responde de aquellas que le son
imputables. La responsabilidad de que tratamos se
impone con ocasion de un delito o culpa, pero no por
causa de ellos, sino por causa del causi delito, esto es,
de la imprudencia o de la negligencia del padre, del
tutor, del dueo o director del establecimiento, del
maestro, etc. Cuando cualquiera de las personas que
enumera el articulo citado (menores de edad,
incapacitados, dependientes, aprendices) causan un
dao, la ley presume que el padre, el tutor, el maestro,
etc., han cometido una falta de negligencia para
prevenir o evitar el dao. Esta falta es la que la ley
castiga. No hay, pues, responsabilidad por un hecho
ajeno, sino en la apariencia; en realidad la
responsabilidad se exige por un hecho propio. La idea
de que esa responsabilidad sea subsidiaria es, por lo
tanto, completamente inadmisible.
Question No. 1. Is the responsibility declared in article
1903 for the acts or omissions of those persons for who
one is responsible, subsidiary or principal? In order to
answer this question it is necessary to know, in the first
place, on what the legal provision is based. Is it true
that there is a responsibility for the fault of another
person? It seems so at first sight; but such assertion
would be contrary to justice and to the universal maxim
that all faults are personal, and that everyone is liable
for those faults that can be imputed to him. The
responsibility in question is imposed on the occasion of
a crime or fault, but not because of the same, but
because of the cuasi-delito, that is to say, the
imprudence or negligence of the father, guardian,
proprietor or manager of the establishment, of the
teacher, etc. Whenever anyone of the persons
enumerated in the article referred to (minors,
incapacitated persons, employees, apprentices) causes
any damage, the law presumes that the father,
guardian, teacher, etc. have committed an act of
negligence in not preventing or avoiding the damage. It
is this fault that is condemned by the law. It is,
therefore, only apparent that there is a responsibility for
the act of another; in reality the responsibility exacted
is for one's own act. The idea that such responsibility is
subsidiary is, therefore, completely inadmissible.
Oyuelos, in his "Digesto: Principios, Doctrina y Jurisprudencia,
Referentes al Codigo Civil Espaol," says in Vol. VII, p. 743:
Es decir, no responde de hechos ajenos, porque se
responde solo de su propia culpa, doctrina del articulo
1902; mas por excepcion, se responde de la ajena
respecto de aquellas personas con las que media algun
nexo o vinculo, que motiva o razona la responsabilidad.
Esta responsabilidad, es directa o es subsidiaria? En el
orden penal, el Codigo de esta clase distingue entre
menores e incapacitados y los demas, declarando
directa la primera (articulo 19) y subsidiaria la segunda
(articulos 20 y 21); pero en el orden civil, en el caso del
articulo 1903, ha de entenderse directa, por el tenor del
articulo que impone la responsabilidad precisamente
"por los actos de aquellas personas de quienes se deba
responder."
That is to say, one is not responsible for the acts of
others, because one is liable only for his own faults, this
being the doctrine of article 1902; but, by exception,
one is liable for the acts of those persons with whom
there is a bond or tie which gives rise to the
responsibility. Is this responsibility direct or subsidiary?
In the order of the penal law, the Penal Code
distinguishes between minors and incapacitated
persons on the one hand, and other persons on the
other, declaring that the responsibility for the former is
direct (article 19), and for the latter, subsidiary (articles
20 and 21); but in the scheme of the civil law, in the
case of article 1903, the responsibility should be
understood as direct, according to the tenor of that
articles, for precisely it imposes responsibility "for the
acts of those persons for whom one should be
responsible."
Coming now to the sentences of the Supreme Tribunal of Spain,
that court has upheld the principles above set forth: that a quasi-
delict or culpa extra-contractual is a separate and distinct legal
institution, independent from the civil responsibility arising from
criminal liability, and that an employer is, under article 1903 of
the Civil Code, primarily and directly responsible for the negligent
acts of his employee.
One of the most important of those Spanish decisions is that of
October 21, 1910. In that case, Ramon Lafuente died as the
result of having been run over by a street car owned by the
"compaia Electric Madrilea de Traccion." The conductor was
prosecuted in a criminal case but he was acquitted. Thereupon,
the widow filed a civil action against the street car company,
paying for damages in the amount of 15,000 pesetas. The lower
court awarded damages; so the company appealed to the
Supreme Tribunal, alleging violation of articles 1902 and 1903 of
the Civil Code because by final judgment the non-existence of
fault or negligence had been declared. The Supreme Court of
Spain dismissed the appeal, saying:
Considerando que el primer motivo del recurso se funda
en el equivocado supuesto de que el Tribunal a quo, al
condonar a la compaia Electrica Madrilea al pago del
dao causado con la muerte de Ramon La fuente
Izquierdo, desconoce el valor y efectos juridicos de la
sentencia absolutoria deictada en la causa criminal que
se siguio por el mismo hecho, cuando es lo cierto que de
este han conocido las dos jurisdicciones bajo diferentes
as pectos, y como la de lo criminal declrao dentro de los
limites de su competencia que el hecho de que se trata
no era constitutivo de delito por no haber mediado
descuido o negligencia graves, lo que no excluye, siendo
este el unico fundamento del fallo absolutorio, el
concurso de la culpa o negligencia no califacadas,
fuente de obligaciones civiles segun el articulo 1902 del
Codigo, y que alcanzan, segun el 1903, netre otras
perosnas, a los Directores de establecimientos o
empresas por los daos causados por sus dependientes
en determinadas condiciones, es manifesto que la de lo
civil, al conocer del mismo hehco baho este ultimo
aspecto y al condenar a la compaia recurrente a la
indemnizacion del dao causado por uno de sus
empleados, lejos de infringer los mencionados textos, en
relacion con el articulo 116 de la Ley de Enjuciamiento
Criminal, se ha atenido estrictamente a ellos, sin
invadir atribuciones ajenas a su jurisdiccion propia, ni
contrariar en lo mas minimo el fallo recaido en la causa.
Considering that the first ground of the appeal is based
on the mistaken supposition that the trial court, in
sentencing the Compaia Madrilea to the payment of
the damage caused by the death of Ramon Lafuente
Izquierdo, disregards the value and juridical effects of

9
Karen Rizel B. Abella
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 andfraudulently, refused to deliver certain articles
consigned to the plaintiff. The Supreme Court of Spain held that
this action was properly under article 1902 of the Civil Code, the
court saying:
Considerando que la sentencia discutida reconoce, en
virtud de los hechos que consigna con relacion a las
pruebas del pleito: 1., que las expediciones facturadas
por la compaia ferroviaria a la consignacion del actor
de las vasijas vacias que en su demanda relacionan
tenian como fin el que este las devolviera a sus
remitentes con vinos y alcoholes; 2., que llegadas a su
destino tales mercanias no se quisieron entregar a
dicho consignatario por el jefe de la estacion sin motivo
justificado y con intencion dolosa, y 3., que la falta de
entrega de estas expediciones al tiempo de reclamarlas
el demandante le originaron daos y perjuicios en
cantidad de bastante importancia como expendedor al
por mayor que era de vinos y alcoholes por las
ganancias que dejo de obtener al verse privado de servir
los pedidos que se le habian hecho por los remitentes
en los envases:
Considerando que sobre esta base hay necesidad de
estimar los cuatro motivos que integran este recurso,
porque la demanda inicial del pleito a que se contrae no
contiene accion que nazca del incumplimiento del
contrato de transporte, toda vez que no se funda en el
retraso de la llegada de las mercancias ni de ningun
otro vinculo contractual entre las partes contendientes,
careciendo, por tanto, de aplicacion el articulo 371 del
Codigo de Comercio, en que principalmente descansa el
fallo recurrido, sino que se limita a pedir la reparaction
de los daos y perjuicios producidos en el patrimonio
del actor por la injustificada y dolosa negativa del
porteador a la entrega de las mercancias a su nombre
consignadas, segun lo reconoce la sentencia, y cuya
responsabilidad esta claramente sancionada en el
articulo 1902 del Codigo Civil, que obliga por el
siguiente a la Compaia demandada como ligada con el
causante de aquellos por relaciones de caracter
economico y de jurarquia administrativa.
Considering that the sentence, in question recognizes,
in virtue of the facts which it declares, in relation to the
evidence in the case: (1) that the invoice issued by the
railroad company in favor of the plaintiff contemplated
that the empty receptacles referred to in the complaint
should be returned to the consignors with wines and
liquors; (2) that when the said merchandise reached
their destination, their delivery to the consignee was
refused by the station agent without justification and
with fraudulent intent, and (3) that the lack of delivery of
these goods when they were demanded by the plaintiff
caused him losses and damages of considerable
importance, as he was a wholesale vendor of wines and
liquors and he failed to realize the profits when he was
unable to fill the orders sent to him by the consignors of
the receptacles:
Considering that upon this basis there is need of
upholding the four assignments of error, as the original
complaint did not contain any cause of action arising
from non-fulfillment of a contract of transportation,
because the action was not based on the delay of the
goods nor on any contractual relation between the
parties litigant and, therefore, article 371 of the Code of
Commerce, on which the decision appealed from is
based, is not applicable; but it limits to asking for
reparation for losses and damages produced on the
patrimony of the plaintiff on account of the unjustified
and fraudulent refusal of the carrier to deliver the goods
consigned to the plaintiff as stated by the sentence, and
the carrier's responsibility is clearly laid down in article
1902 of the Civil Code which binds, in virtue of the next
article, the defendant company, because the latter is
connected with the person who caused the damage by
relations of economic character and by administrative
hierarchy. (Emphasis supplied.)
The above case is pertinent because it shows that the same act
may come under both the Penal Code and the Civil Code. In that
case, the action of the agent was unjustified and fraudulent and
therefore could have been the subject of a criminal action. And
yet, it was held to be also a proper subject of a civil action under
article 1902 of the Civil Code. It is also to be noted that it was the
employer and not the employee who was being sued.
Let us now examine the cases previously decided by this Court.
In the leading case of Rakes vs. Atlantic Gulf and Pacific Co. (7
Phil., 359, 362-365 [year 1907]), the trial court awarded damages
to the plaintiff, a laborer of the defendant, because the latter had
negligently failed to repair a tramway in consequence of which the
rails slid off while iron was being transported, and caught the
plaintiff whose leg was broken. This Court held:
It is contended by the defendant, as its first defense to
the action that the necessary conclusion from these
collated laws is that the remedy for injuries through
negligence lies only in a criminal action in which the
official criminally responsible must be made primarily
liable and his employer held only subsidiarily to him.
According to this theory the plaintiff should have
procured the arrest of the representative of the
company accountable for not repairing the track, and
on his prosecution a suitable fine should have been

10
Karen Rizel B. Abella
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.
x x x x x x x x x
"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.
x x x x x x x x x
"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

11
Karen Rizel B. Abella
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

12
Karen Rizel B. Abella
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.
x x x x x x x x x
Our deduction, therefore, is that the case relates to the
Penal Code and not to the Civil Code. Indeed, as pointed
out by the trial judge, any different ruling would permit
the master to escape scot-free by simply alleging and
proving that the master had exercised all diligence in
the selection and training of its servants to prevent the
damage. That would be a good defense to a strictly civil
action, but might or might not be to a civil action either
as a part of or predicated on conviction for a crime or
misdemeanor. (By way of parenthesis, it may be said
further that the statements here made are offered to
meet the argument advanced during our deliberations
to the effect that article 0902 of the Civil Code should
be disregarded and codal articles 1093 and 1903
applied.)
It is not clear how the above case could support the defendant's
proposition, because the Court of Appeals based its decision in
the present case on the defendant's primary responsibility under
article 1903 of the Civil Code and not on his subsidiary liability
arising from Fontanilla's criminal negligence. In other words, the
case of City of Manila vs. Manila Electric Co., supra, is predicated
on an entirely different theory, which is the subsidiary liability of
an employer arising from a criminal act of his employee, whereas
the foundation of the decision of the Court of Appeals in the
present case is the employer's primary liability under article 1903
of the Civil Code. We have already seen that this is a proper and
independent remedy.
Arambulo vs. Manila Electric Co. (55 Phil., 75), is another case
invoked by the defendant. A motorman in the employ of the
Manila Electric Company had been convicted o homicide by
simple negligence and sentenced, among other things, to pay the
heirs of the deceased the sum of P1,000. An action was then
brought to enforce the subsidiary liability of the defendant as
employer under the Penal Code. The defendant attempted to show
that it had exercised the diligence of a good father of a family in
selecting the motorman, and therefore claimed exemption from
civil liability. But this Court held:
In view of the foregoing considerations, we are of
opinion and so hold, (1) that the exemption from civil
liability established in article 1903 of the Civil Code for
all who have acted with the diligence of a good father of
a family, is not applicable to the subsidiary civil liability
provided in article 20 of the Penal Code.
The above case is also extraneous to the theory of the defendant
in the instant case, because the action there had for its purpose
the enforcement of the defendant's subsidiary liability under the
Penal Code, while in the case at bar, the plaintiff's cause of action
is based on the defendant's primary and direct responsibility
under article 1903 of the Civil Code. In fact, the above case
destroys the defendant's contention because that decision
illustrates the principle that the employer's primary responsibility
under article 1903 of the Civil Code is different in character from
his subsidiary liability under the Penal Code.
In trying to apply the two cases just referred to, counsel for the
defendant has failed to recognize the distinction between civil
liability arising from a crime, which is governed by the Penal
Code, and the responsibility for cuasi-delito or culpa
aquiliana under the Civil Code, and has likewise failed to give the
importance to the latter type of civil action.
The defendant-petitioner also cites Francisco vs. Onrubia (46
Phil., 327). That case need not be set forth. Suffice it to say that
the question involved was also civil liability arising from a crime.
Hence, it is as inapplicable as the two cases above discussed.
The foregoing authorities clearly demonstrate the separate
individuality of cuasi-delitos or culpa aquiliana under the Civil
Code. Specifically they show that there is a distinction between
civil liability arising from criminal negligence (governed by the
Penal Code) and responsibility for fault or negligence under
articles 1902 to 1910 of the Civil Code, and that the same
negligent act may produce either a civil liability arising from a
crime under the Penal Code, or a separate responsibility for fault
or negligence under articles 1902 to 1910 of the Civil Code. Still
more concretely, the authorities above cited render it inescapable
to conclude that the employer in this case the defendant-
petitioner is primarily and directly liable under article 1903 of
the Civil Code.
The legal provisions, authors, and cases already invoked should
ordinarily be sufficient to dispose of this case. But inasmuch as
we are announcing doctrines that have been little understood in
the past, it might not be inappropriate to indicate their
foundations.
Firstly, the Revised Penal Code in article 365 punishes not only
reckless but also simple negligence. If we were to hold that
articles 1902 to 1910 of the Civil Code refer only to fault or
negligence not punished by law, according to the literal import of
article 1093 of the Civil Code, the legal institution of culpa
aquiliana would have very little scope and application in actual
life. Death or injury to persons and damage to property through
any degree of negligence even the slightest would have to be
indemnified only through the principle of civil liability arising
from a crime. In such a state of affairs, what sphere would remain
for cuasi-delito or culpa aquiliana? We are loath to impute to the
lawmaker any intention to bring about a situation so absurd and
anomalous. Nor are we, in the interpretation of the laws, disposed
to uphold the letter that killeth rather than the spirit that giveth
life. We will not use the literal meaning of the law to smother and
render almost lifeless a principle of such ancient origin and such
full-grown development as culpa aquiliana or cuasi-delito, which
is conserved and made enduring in articles 1902 to 1910 of the
Spanish Civil Code.
Secondly, to find the accused guilty in a criminal case, proof of
guilt beyond reasonable doubt is required, while in a civil case,
preponderance of evidence is sufficient to make the defendant pay
in damages. There are numerous cases of criminal negligence
which can not be shown beyond reasonable doubt, but can be
proved by a preponderance of evidence. In such cases, the
defendant can and should be made responsible in a civil action
under articles 1902 to 1910 of the Civil Code. Otherwise, there
would be many instances of unvindicated civil wrongs. Ubi jus ibi
remedium.
Thirdly, to hold that there is only one way to make defendant's
liability effective, and that is, to sue the driver and exhaust his
(the latter's) property first, would be tantamount to compelling
the plaintiff to follow a devious and cumbersome method of
obtaining relief. True, there is such a remedy under our laws, but
there is also a more expeditious way, which is based on the
primary and direct responsibility of the defendant under article
1903 of the Civil Code. Our view of the law is more likely to
facilitate remedy for civil wrongs, because the procedure indicated
by the defendant is wasteful and productive of delay, it being a
matter of common knowledge that professional drivers of taxis
and similar public conveyance usually do not have sufficient
means with which to pay damages. Why, then, should the
plaintiff be required in all cases to go through this roundabout,
unnecessary, and probably useless procedure? In construing the
laws, courts have endeavored to shorten and facilitate the
pathways of right and justice.
At this juncture, it should be said that the primary and direct
responsibility of employers and their presumed negligence are
principles calculated to protect society. Workmen and employees
should be carefully chosen and supervised in order to avoid
injury to the public. It is the masters or employers who
principally reap the profits resulting from the services of these
servants and employees. It is but right that they should
guarantee the latter's careful conduct for the personnel and
patrimonial safety of others. As Theilhard has said, "they should
reproach themselves, at least, some for their weakness, others for
their poor selection and all for their negligence." And according to
Manresa, "It is much more equitable and just that such
responsibility should fall upon the principal or director who could
have chosen a careful and prudent employee, and not upon the
injured person who could not exercise such selection and who
used such employee because of his confidence in the principal or

13
Karen Rizel B. Abella
director." (Vol. 12, p. 622, 2nd Ed.) Many jurists also base this
primary responsibility of the employer on the principle of
representation of the principal by the agent. Thus, Oyuelos says
in the work already cited (Vol. 7, p. 747) that before third persons
the employer and employee "vienen a ser como una sola
personalidad, por refundicion de la del dependiente en la de quien
le emplea y utiliza." ("become as one personality by the merging of
the person of the employee in that of him who employs and
utilizes him.") All these observations acquire a peculiar force and
significance when it comes to motor accidents, and there is need
of stressing and accentuating the responsibility of owners of
motor vehicles.
Fourthly, because of the broad sweep of the provisions of both the
Penal Code and the Civil Code on this subject, which has given
rise to the overlapping or concurrence of spheres already
discussed, and for lack of understanding of the character and
efficacy of the action for culpa aquiliana, there has grown up a
common practice to seek damages only by virtue of the civil
responsibility arising from a crime, forgetting that there is
another remedy, which is by invoking articles 1902-1910 of the
Civil Code. Although this habitual method is allowed by our laws,
it has nevertheless rendered practically useless and nugatory the
more expeditious and effective remedy based on culpa
aquiliana or culpa extra-contractual. In the present case, we are
asked to help perpetuate this usual course. But we believe it is
high time we pointed out to the harm done by such practice and
to restore the principle of responsibility for fault or negligence
under articles 1902 et seq. of the Civil Code to its full rigor. It is
high time we caused the stream of quasi-delict or culpa
aquiliana to flow on its own natural channel, so that its waters
may no longer be diverted into that of a crime under the Penal
Code. This will, it is believed, make for the better safeguarding of
private rights because it re-establishes an ancient and additional
remedy, and for the further reason that an independent civil
action, not depending on the issues, limitations and results of a
criminal prosecution, and entirely directed by the party wronged
or his counsel, is more likely to secure adequate and efficacious
redress.
In view of the foregoing, the judgment of the Court of Appeals
should be and is hereby affirmed, with costs against the
defendant-petitioner.
G.R. No. L-24803 May 26, 1977
PEDRO ELCANO and PATRICIA ELCANO, in their capacity as
Ascendants of Agapito Elcano, deceased,plaintiffs-appellants,
vs.
REGINALD HILL, minor, and MARVIN HILL, as father and
Natural Guardian of said minor, defendants-appellees.
Appeal from the order of the Court of First Instance of Quezon
City dated January 29, 1965 in Civil Case No. Q-8102, Pedro
Elcano et al. vs. Reginald Hill et al. dismissing, upon motion to
dismiss of defendants, the complaint of plaintiffs for recovery of
damages from defendant Reginald Hill, a minor, married at the
time of the occurrence, and his father, the defendant Marvin Hill,
with whom he was living and getting subsistence, for the killing
by Reginald of the son of the plaintiffs, named Agapito Elcano, of
which, when criminally prosecuted, the said accused was
acquitted on the ground that his act was not criminal, because of
"lack of intent to kill, coupled with mistake."
Actually, the motion to dismiss based on the following grounds:
1. The present action is not only against but a violation of
section 1, Rule 107, which is now Rule III, of the Revised
Rules of Court;
2. The action is barred by a prior judgment which is now
final and or in res-adjudicata;
3. The complaint had no cause of action against defendant
Marvin Hill, because he was relieved as guardian of the
other defendant through emancipation by marriage.
(P. 23, Record [p. 4, Record on Appeal.])
was first denied by the trial court. It was only upon motion for
reconsideration of the defendants of such denial, reiterating the
above grounds that the following order was issued:
Considering the motion for reconsideration filed by the
defendants on January 14, 1965 and after thoroughly
examining the arguments therein contained, the Court
finds the same to be meritorious and well-founded.
WHEREFORE, the Order of this Court on December 8,
1964 is hereby reconsidered by ordering the dismissal
of the above entitled case.
SO ORDERED.
Quezon City, Philippines, January 29, 1965. (p. 40,
Record [p. 21, Record on Appeal.)
Hence, this appeal where plaintiffs-appellants, the spouses
Elcano, are presenting for Our resolution the following
assignment of errors:
THE LOWER COURT ERRED IN DISMISSING THE
CASE BY UPHOLDING THE CLAIM OF DEFENDANTS
THAT -
I
THE PRESENT ACTION IS NOT ONLY AGAINST BUT
ALSO A VIOLATION OF SECTION 1, RULE 107, NOW
RULE 111, OF THE REVISED RULES OF COURT, AND
THAT SECTION 3(c) OF RULE 111, RULES OF COURT
IS APPLICABLE;
II
THE ACTION IS BARRED BY A PRIOR JUDGMENT
WHICH IS NOW FINAL OR RES-ADJUDICTA;
III
THE PRINCIPLES OF QUASI-DELICTS, ARTICLES 2176
TO 2194 OF THE CIVIL CODE, ARE INAPPLICABLE IN
THE INSTANT CASE; and
IV
THAT THE COMPLAINT STATES NO CAUSE OF
ACTION AGAINST DEFENDANT MARVIN HILL
BECAUSE HE WAS RELIEVED AS GUARDIAN OF THE
OTHER DEFENDANT THROUGH EMANCIPATION BY
MARRIAGE. (page 4, Record.)
It appears that for the killing of the son, Agapito, of plaintiffs-
appellants, defendant- appellee Reginald Hill was prosecuted
criminally in Criminal Case No. 5102 of the Court of First
Instance of Quezon City. After due trial, he was acquitted on the
ground that his act was not criminal because of "lack of intent to
kill, coupled with mistake." Parenthetically, none of the parties
has favored Us with a copy of the decision of acquittal,
presumably because appellants do not dispute that such indeed
was the basis stated in the court's decision. And so, when
appellants filed their complaint against appellees Reginald and
his father, Atty. Marvin Hill, on account of the death of their son,
the appellees filed the motion to dismiss above-referred to.
As We view the foregoing background of this case, the two
decisive issues presented for Our resolution are:
1. Is the present civil action for damages barred by the acquittal
of Reginald in the criminal case wherein the action for civil
liability, was not reversed?
2. May Article 2180 (2nd and last paragraphs) of the Civil Code he
applied against Atty. Hill, notwithstanding the undisputed fact
that at the time of the occurrence complained of. Reginald,
though a minor, living with and getting subsistenee from his
father, was already legally married?
The first issue presents no more problem than the need for a
reiteration and further clarification of the dual character, criminal
and civil, of fault or negligence as a source of obligation which
was firmly established in this jurisdiction in Barredo vs. Garcia,
73 Phil. 607. In that case, this Court postulated, on the basis of a
scholarly dissertation by Justice Bocobo on the nature of culpa
aquiliana in relation to culpa criminal or delito and mereculpa or
fault, with pertinent citation of decisions of the Supreme Court of
Spain, the works of recognized civilians, and earlier jurisprudence
of our own, that the same given act can result in civil liability not
only under the Penal Code but also under the Civil Code. Thus,
the opinion holds:
The, above case is pertinent because it shows that the
same act machinist. come under both the Penal Code

14
Karen Rizel B. Abella
and the Civil Code. In that case, the action of the agent
killeth unjustified and fraudulent and therefore could
have been the subject of a criminal action. And yet, it
was held to be also a proper subject of a civil action
under article 1902 of the Civil Code. It is also to be
noted that it was the employer and not the employee
who was being sued. (pp. 615-616, 73 Phil.).
1

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

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

The legal provisions, authors, and cases already
invoked should ordinarily be sufficient to dispose of this
case. But inasmuch as we are announcing doctrines
that have been little understood, in the past, it might
not he inappropriate to indicate their foundations.
Firstly, the Revised Penal Code in articles 365 punishes
not only reckless but also simple negligence. If we were
to hold that articles 1902 to 1910 of the Civil Code refer
only to fault or negligence not punished by law,
accordingly to the literal import of article 1093 of the
Civil Code, the legal institution of culpa aquiliana would
have very little scope and application in actual life.
Death or injury to persons and damage to property-
through any degree of negligence - even the slightest -
would have to be Idemnified only through the principle
of civil liability arising from a crime. In such a state of
affairs, what sphere would remain for cuasi-
delito or culpa aquiliana? We are loath to impute to the
lawmaker any intention to bring about a situation so
absurd and anomalous. Nor are we, in the
interpretation of the laws, disposed to uphold the letter
that killeth rather than the spirit that giveth life. We will
not use the literal meaning of the law to smother and
render almost lifeless a principle of such ancient origin
and such full-grown development as culpa
aquiliana or cuasi-delito, which is conserved and made
enduring in articles 1902 to 1910 of the Spanish Civil
Code.
Secondary, to find the accused guilty in a criminal case,
proof of guilt beyond reasonable doubt is required,
while in a civil case, preponderance of evidence is
sufficient to make the defendant pay in damages. There
are numerous cases of criminal negligence which can
not be shown beyond reasonable doubt, but can be
proved by a preponderance of evidence. In such cases,
the defendant can and should be made responsible in a
civil action under articles 1902 to 1910 of the Civil
Code. Otherwise. there would be many instances of
unvindicated civil wrongs. "Ubi jus Idemnified
remedium." (p. 620,73 Phil.)
Fourthly, because of the broad sweep of the provisions
of both the Penal Code and the Civil Code on this
subject, which has given rise to the overlapping or
concurrence of spheres already discussed, and for lack
of understanding of the character and efficacy of the
action for culpa aquiliana, there has grown up a
common practice to seek damages only by virtue of the
civil responsibility arising from a crime, forgetting that
there is another remedy, which is by invoking articles
1902-1910 of the Civil Code. Although this habitual
method is allowed by, our laws, it has nevertheless
rendered practically useless and nugatory the more
expeditious and effective remedy based on culpa
aquiliana or culpa extra-contractual. In the present case,
we are asked to help perpetuate this usual course. But
we believe it is high time we pointed out to the harms
done by such practice and to restore the principle of
responsibility for fault or negligence under articles 1902
et seq. of the Civil Code to its full rigor. It is high time
we caused the stream of quasi-delict or culpa
aquiliana to flow on its own natural channel, so that its
waters may no longer be diverted into that of a crime
under the Penal Code. This will, it is believed, make for
the better safeguarding or private rights because it
realtor, an ancient and additional remedy, and for the
further reason that an independent civil action, not
depending on the issues, limitations and results of a
criminal prosecution, and entirely directed by the party
wronged or his counsel, is more likely to secure
adequate and efficacious redress. (p. 621, 73 Phil.)
Contrary to an immediate impression one might get upon a
reading of the foregoing excerpts from the opinion in Garcia that
the concurrence of the Penal Code and the Civil Code therein
referred to contemplate only acts of negligence and not
intentional voluntary acts - deeper reflection would reveal that the
thrust of the pronouncements therein is not so limited, but that
in fact it actually extends to fault or culpa. This can be seen in
the reference made therein to the Sentence of the Supreme Court
of Spain of February 14, 1919, supra, which involved a case of
fraud or estafa, not a negligent act. Indeed, Article 1093 of the
Civil Code of Spain, in force here at the time of Garcia, provided
textually that obligations "which are derived from acts or
omissions in which fault or negligence, not punishable by law,
intervene shall be the subject of Chapter II, Title XV of this book
(which refers to quasi-delicts.)" And it is precisely the underline
qualification, "not punishable by law", that Justice Bocobo
emphasized could lead to an ultimo construction or interpretation
of the letter of the law that "killeth, rather than the spirit that
giveth lift- hence, the ruling that "(W)e will not use the literal
meaning of the law to smother and render almost lifeless a
principle of such ancient origin and such full-grown development
as culpa aquiliana orquasi-delito, which is conserved and made
enduring in articles 1902 to 1910 of the Spanish Civil Code." And
so, because Justice Bacobo was Chairman of the Code
Commission that drafted the original text of the new Civil Code, it
is to be noted that the said Code, which was enacted after the
Garcia doctrine, no longer uses the term, 11 not punishable by
law," thereby making it clear that the concept of culpa
aquiliana includes acts which are criminal in character or in
violation of the penal law, whether voluntary or matter. Thus, the
corresponding provisions to said Article 1093 in the new code,
which is Article 1162, simply says, "Obligations derived
from quasi-delicto shall be governed by the provisions of Chapter
2, Title XVII of this Book, (on quasi-delicts) and by special laws."
More precisely, a new provision, Article 2177 of the new code
provides:
ART. 2177. Responsibility for fault or
negligence under the preceding article is
entirely separate and distinct from the civil
liability arising from negligence under the
Penal Code. But the plaintiff cannot recover
damages twice for the same act or omission of
the defendant.
According to the Code Commission: "The foregoing provision
(Article 2177) through at first sight startling, is not so novel or
extraordinary when we consider the exact nature of criminal and
civil negligence. The former is a violation of the criminal law,
while the latter is a "culpa aquiliana" or quasi-delict, of ancient
origin, having always had its own foundation and individuality,
separate from criminal negligence. Such distinction between
criminal negligence and "culpa extracontractual" or "cuasi-delito"
has been sustained by decision of the Supreme Court of Spain
and maintained as clear, sound and perfectly tenable by Maura,
an outstanding Spanish jurist. Therefore, under the proposed
Article 2177, acquittal from an accusation of criminal negligence,
whether on reasonable doubt or not, shall not be a bar to a
subsequent civil action, not for civil liability arising from criminal
negligence, but for damages due to a quasi-delict or 'culpa
aquiliana'. But said article forestalls a double recovery.", (Report
of the Code) Commission, p. 162.)
Although, again, this Article 2177 does seem to literally refer to
only acts of negligence, the same argument of Justice Bacobo
about construction that upholds "the spirit that giveth lift- rather
than that which is literal that killeth the intent of the lawmaker
should be observed in applying the same. And considering that
the preliminary chapter on human relations of the new Civil Code
definitely establishes the separability and independence of
liability in a civil action for acts criminal in character (under
Articles 29 to 32) from the civil responsibility arising from crime
fixed by Article 100 of the Revised Penal Code, and, in a sense,
the Rules of Court, under Sections 2 and 3 (c), Rule 111,
contemplate also the same separability, it is "more congruent with

15
Karen Rizel B. Abella
the spirit of law, equity and justice, and more in harmony with
modern progress"- to borrow the felicitous relevant language
in Rakes vs. Atlantic. Gulf and Pacific Co., 7 Phil. 359, to hold, as
We do hold, that Article 2176, where it refers to "fault or
negligencia covers not only acts "not punishable by law" but also
acts criminal in character, whether intentional and voluntary or
negligent. Consequently, a separate civil action lies against the
offender in a criminal act, whether or not he is criminally
prosecuted and found guilty or acquitted, provided that the
offended party is not allowed, if he is actually charged also
criminally, to recover damages on both scores, and would be
entitled in such eventuality only to the bigger award of the two,
assuming the awards made in the two cases vary. In other words,
the extinction of civil liability referred to in Par. (e) of Section 3,
Rule 111, refers exclusively to civil liability founded on Article 100
of the Revised Penal Code, whereas the civil liability for the same
act considered as a quasi-delict only and not as a crime is not
estinguished even by a declaration in the criminal case that the
criminal act charged has not happened or has not been
committed by the accused. Briefly stated, We here hold, in
reiteration of Garcia, thatculpa aquiliana includes voluntary and
negligent acts which may be punishable by law.
4

It results, therefore, that the acquittal of Reginal Hill in the
criminal case has not extinguished his liability for quasi-delict,
hence that acquittal is not a bar to the instant action against
him.
Coming now to the second issue about the effect of Reginald's
emancipation by marriage on the possible civil liability of Atty.
Hill, his father, it is also Our considered opinion that the
conclusion of appellees that Atty. Hill is already free from
responsibility cannot be upheld.
While it is true that parental authority is terminated upon
emancipation of the child (Article 327, Civil Code), and under
Article 397, emancipation takes place "by the marriage of the
minor (child)", it is, however, also clear that pursuant to Article
399, emancipation by marriage of the minor is not really full or
absolute. Thus "(E)mancipation by marriage or by voluntary
concession shall terminate parental authority over the child's
person. It shall enable the minor to administer his property as
though he were of age, but he cannot borrow money or alienate or
encumber real property without the consent of his father or
mother, or guardian. He can sue and be sued in court only with
the assistance of his father, mother or guardian."
Now under Article 2180, "(T)he obligation imposed by article 2176
is demandable not only for one's own acts or omissions, but also
for those of persons for whom one is responsible. The father and,
in case of his death or incapacity, the mother, are responsible.
The father and, in case of his death or incapacity, the mother, are
responsible for the damages caused by the minor children who
live in their company." In the instant case, it is not controverted
that Reginald, although married, was living with his father and
getting subsistence from him at the time of the occurrence in
question. Factually, therefore, Reginald was still subservient to
and dependent on his father, a situation which is not unusual.
It must be borne in mind that, according to Manresa, the reason
behind the joint and solidary liability of presuncion with their
offending child under Article 2180 is that is the obligation of the
parent to supervise their minor children in order to prevent them
from causing damage to third persons.
5
On the other hand, the
clear implication of Article 399, in providing that a minor
emancipated by marriage may not, nevertheless, sue or be sued
without the assistance of the parents, is that such emancipation
does not carry with it freedom to enter into transactions or do any
act that can give rise to judicial litigation. (See Manresa, Id., Vol.
II, pp. 766-767, 776.) And surely, killing someone else invites
judicial action. Otherwise stated, the marriage of a minor child
does not relieve the parents of the duty to see to it that the child,
while still a minor, does not give answerable for the borrowings of
money and alienation or encumbering of real property which
cannot be done by their minor married child without their
consent. (Art. 399; Manresa, supra.)
Accordingly, in Our considered view, Article 2180 applies to Atty.
Hill notwithstanding the emancipation by marriage of Reginald.
However, inasmuch as it is evident that Reginald is now of age, as
a matter of equity, the liability of Atty. Hill has become milling,
subsidiary to that of his son.
WHEREFORE, the order appealed from is reversed and the trial
court is ordered to proceed in accordance with the foregoing
opinion. Costs against appellees.
G.R. No. L-32599 June 29, 1979
EDGARDO E. MENDOZA, petitioner
vs.
HON. ABUNDIO Z. ARRIETA, Presiding Judge of Branch VIII,
Court of First Instance of Manila, FELINO TIMBOL, and
RODOLFO SALAZAR, respondents.
Petitioner, Edgardo Mendoza, seeks a review on certiorari of the
Orders of respondent Judge in Civil Case No. 80803 dismissing
his Complaint for Damages based on quasi-delict against
respondents Felino Timbol and Rodolfo Salazar.
The facts which spawned the present controversy may be
summarized as follows:
On October 22, 1969, at about 4:00 o'clock in the afternoon, a
three- way vehicular accident occurred along Mac-Arthur
Highway, Marilao, Bulacan, involving a Mercedes Benz owned and
driven by petitioner; a private jeep owned and driven by
respondent Rodolfo Salazar; and a gravel and sand truck owned
by respondent Felipino Timbol and driven by Freddie Montoya. As
a consequence of said mishap, two separate Informations for
Reckless Imprudence Causing Damage to Property were filed
against Rodolfo Salazar and Freddie Montoya with the Court of
First Instance of Bulacan. The race against truck-driver Montoya,
docketed as Criminal Case No. SM-227, was for causing damage
to the jeep owned by Salazar, in the amount of Pl,604.00, by
hitting it at the right rear portion thereby causing said jeep to hit
and bump an oncoming car, which happened to be petitioner's
Mercedes Benz. The case against jeep-owner-driver Salazar,
docketed as Criminal Case No. SM 228, was for causing damage
to the Mercedes Benz of petitioner in the amount of P8,890.00
At the joint trial of the above cases, petitioner testified that jeep-
owner- driver Salazar overtook the truck driven by Montoya,
swerved to the left going towards the poblacion of Marilao, and hit
his car which was bound for Manila. Petitioner further testified
that before the impact, Salazar had jumped from the jeep and
that he was not aware that Salazar's jeep was bumped from
behind by the truck driven by Montoya. Petitioner's version of the
accident was adopted by truck driver Montoya. Jeep-owner-driver
Salazar, on the other hand, tried to show that, after overtaking
the truck driven by Montoya, he flashed a signal indicating his
intention to turn left towards the poblacion of Marilao but was
stopped at the intersection by a policeman who was directing
traffic; that while he was at a stop position, his jeep was bumped
at the rear by the truck driven by Montova causing him to be
thrown out of the jeep, which then swerved to the left and hit
petitioner's car, which was coming from the opposite direction.
On July 31, 1970, the Court of First Instance of Bulacan, Branch
V, Sta. Maria, rendered judgment, stating in its decretal portion:
IN VIEW OF THE FOREGOING, this Court
finds the accused Freddie Montoya GUILTY
beyond reasonable doubt of the crime of
damage to property thru reckless imprudence
in Crime. Case No. SM-227, and hereby
sentences him to pay a fine of P972.50 and to
indemnify Rodolfo Salazar in the same
amount of P972.50 as actual damages, with
subsidiary imprisonment in case of
insolvency, both as to fine and indemnity,
with costs.
Accused Rodolfo Salazar is hereby
ACQUITTED from the offense charged in
Crime. Case No. SM-228, with costs de oficio,
and his bond is ordered canceled
SO ORDERED.
1

Thus, the trial Court absolved jeep-owner-driver Salazar of any
liability, civil and criminal, in view of its findings that the collision
between Salazar's jeep and petitioner's car was the result of the
former having been bumped from behind by the truck driven by
Montoya. Neither was petitioner awarded damages as he was not
a complainant against truck-driver Montoya but only against
jeep-owner-driver Salazar.
On August 22, 1970, or after the termination of the criminal
cases, petitioner filed Civil Case No. 80803 with the Court of First
Instance of Manila against respondents jeep-owner-driver Salazar
and Felino Timbol, the latter being the owner of the gravel and
sand truck driven by Montoya, for indentification for the damages
sustained by his car as a result of the collision involving their
vehicles. Jeep-owner-driver Salazar and truck-owner Timbol were
joined as defendants, either in the alternative or in
solidum allegedly for the reason that petitioner was uncertain as
to whether he was entitled to relief against both on only one of
them.

16
Karen Rizel B. Abella
On September 9, 1970, truck-owner Timbol filed a Motion to
Dismiss Civil Case No. 80803 on the grounds that the Complaint
is barred by a prior judgment in the criminal cases and that it
fails to state a cause of action. An Opposition thereto was filed by
petitioner.
In an Order dated September 12, 1970, respondent Judge
dismissed the Complaint against truck-owner Timbol for reasons
stated in the afore- mentioned Motion to Dismiss On September
30, 1970, petitioner sought before this Court the review of that
dismissal, to which petition we gave due course.
On January 30, 1971, upon motion of jeep-owner-driver Salazar,
respondent Judge also dismissed the case as against the former.
Respondent Judge reasoned out that "while it is true that an
independent civil action for liability under Article 2177 of the Civil
Code could be prosecuted independently of the criminal action for
the offense from which it arose, the New Rules of Court, which
took effect on January 1, 1964, requires an express reservation of
the civil action to be made in the criminal action; otherwise, the
same would be barred pursuant to Section 2, Rule 111
...
2
Petitioner's Motion for Reconsideration thereof was denied in
the order dated February 23, 1971, with respondent Judge
suggesting that the issue be raised to a higher Court "for a more
decisive interpretation of the rule.
3

On March 25, 1971, petitioner then filed a Supplemental Petition
before us, also to review the last two mentioned Orders, to which
we required jeep-owner-driver Salazar to file an Answer.
The Complaint against
truck-owner Timbol
We shall first discuss the validity of the Order, dated September
12, 1970, dismissing petitioner's Complaint against truck-owner
Timbol.
In dismissing the Complaint against the truck-owner, respondent
Judge sustained Timbol's allegations that the civil suit is barred
by the prior joint judgment in Criminal Cases Nos. SM-227 and
SM-228, wherein no reservation to file a separate civil case was
made by petitioner and where the latter actively participated in
the trial and tried to prove damages against jeep-driver-Salazar
only; and that the Complaint does not state a cause of action
against truck-owner Timbol inasmuch as petitioner prosecuted
jeep-owner-driver Salazar as the one solely responsible for the
damage suffered by his car.
Well-settled is the rule that for a prior judgment to constitute a
bar to a subsequent case, the following requisites must concur:
(1) it must be a final judgment; (2) it must have been rendered by
a Court having jurisdiction over the subject matter and over the
parties; (3) it must be a judgment on the merits; and (4) there
must be, between the first and second actions, Identity of parties,
Identity of subject matter and Identity of cause of action.
It is conceded that the first three requisites of res judicata are
present. However, we agree with petitioner that there is no
Identity of cause of action between Criminal Case No. SM-227
and Civil Case No. 80803. Obvious is the fact that in said
criminal case truck-driver Montoya was not prosecuted for
damage to petitioner's car but for damage to the jeep. Neither was
truck-owner Timbol a party in said case. In fact as the trial Court
had put it "the owner of the Mercedes Benz cannot recover any
damages from the accused Freddie Montoya, he (Mendoza) being
a complainant only against Rodolfo Salazar in Criminal Case No.
SM-228.
4
And more importantly, in the criminal cases, the cause
of action was the enforcement of the civil liability arising from
criminal negligence under Article l of the Revised Penal Code,
whereas Civil Case No. 80803 is based on quasi-delict under
Article 2180, in relation to Article 2176 of the Civil Code As held
in Barredo vs. Garcia, et al.
5

The foregoing authorities clearly demonstrate
the separate in. 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.
That petitioner's cause of action against Timbol in the civil case is
based on quasi-delict is evident from the recitals in the complaint
to wit: that while petitioner was driving his car along MacArthur
Highway at Marilao, Bulacan, a jeep owned and driven by Salazar
suddenly swerved to his (petitioner's) lane and collided with his
car That the sudden swerving of Salazar's jeep was caused either
by the negligence and lack of skill of Freddie Montoya, Timbol's
employee, who was then driving a gravel and sand truck iii the
same direction as Salazar's jeep; and that as a consequence of the
collision, petitioner's car suffered extensive damage amounting to
P12,248.20 and that he likewise incurred actual and moral
damages, litigation expenses and attorney's fees. Clearly,
therefore, the two factors that a cause of action must consist of,
namely: (1) plaintiff's primary right, i.e., that he is the owner of a
Mercedes Benz, and (2) defendant's delict or wrongful act or
omission which violated plaintiff's primary right, i.e., the
negligence or lack of skill either of jeep-owner Salazar or of
Timbol's employee, Montoya, in driving the truck, causing
Salazar's jeep to swerve and collide with petitioner's car, were
alleged in the Complaint.
6

Consequently, petitioner's cause of action being based on quasi-
delict, respondent Judge committed reversible error when he
dismissed the civil suit against the truck-owner, as said case may
proceed independently of the criminal proceedings and regardless
of the result of the latter.
Art. 31. When the civil action is based on an
obligation not arising from the act or omission
complained of as a felony, such civil action
may proceed independently of the criminal
proceedings and regardless of the result of the
latter.
But it is truck-owner Timbol's submission (as well as that of jeep-
owner-driver Salazar) that petitioner's failure to make a
reservation in the criminal action of his right to file an
independent civil action bars the institution of such separate civil
action, invoking section 2, Rule 111, Rules of Court, which says:
Section 2. Independent civil action. In
the cases provided for in Articles 31, 32, 33,
34 and 2177 of the Civil Code of the
Philippines, an independent civil action
entirely separate and distinct from the
criminal action may be brought by the injured
party during the pendency of the criminal
case, provided the right is reserved as
required in the preceding section. Such civil
action shau proceed independently of the
criminal prosecution, and shall require only a
preponderance of evidence.
Interpreting the above provision, this Court, in Garcia vs.
Florida
7
said:
As we have stated at the outset, the same
negligent act causing damages may produce a
civil liability arising from crime or create an
action for quasi-delict or culpa extra-
contractual. The former is a violation of the
criminal law, while the latter is a distinct and
independent negligence, having always had its
own foundation and individuality. Some legal
writers are of the view that in accordance with
Article 31, the civil action based upon quasi-
delict may proceed independently of the
criminal proceeding for criminal negligence
and regardless of the result of the latter.
Hence, 'the proviso in Section 2 of Rule 111
with reference to ... Articles 32, 33 and 34 of
the Civil Code is contrary to the letter and
spirit of the said articles, for these articles
were drafted ... and are intended to constitute
as exceptions to the general rule stated in
what is now Section 1 of Rule 111. The
proviso, which is procedural, may also be
regarded as an unauthorized amendment of
substantive law, Articles 32, 33 and 34 of the
Civil Code, which do not provide for the
reservation required in the proviso ... .
In his concurring opinion in the above case, Mr. Justice Antonio
Barredo further observed that inasmuch as Articles 2176 and
2177 of the Civil Code create a civil liability distinct and different
from the civil action arising from the offense of negligence under
the Revised Penal Code, no reservation, therefore, need be made
in the criminal case; that Section 2 of Rule 111 is inoperative, "it

17
Karen Rizel B. Abella
being substantive in character and is not within the power of the
Supreme Court to promulgate; and even if it were not substantive
but adjective, it cannot stand because of its inconsistency with
Article 2177, an enactment of the legislature superseding the
Rules of 1940."
We declare, therefore, that in so far as truck-owner Timbol is
concerned, Civil Case No. 80803 is not barred by the fact that
petitioner failed to reserve, in the criminal action, his right to file
an independent civil action based on quasi-delict.
The suit against
jeep-owner-driver Salazar
The case as against jeep-owner-driver Salazar, who was acquitted
in Criminal Case No. SM-228, presents a different picture
altogether.
At the outset it should be clarified that inasmuch as civil liability
co-exists with criminal responsibility in negligence cases, the
offended party has the option between an action for enforcement
of civil liability based on culpa criminalunder Article 100 of the
Revised Penal Code, and an action for recovery of damages based
on culpa aquilianaunder Article 2177 of the Civil Code. The action
for enforcement of civil liability based on culpa criminal under
section 1 of Rule 111 of the Rules of Court is deemed
simultaneously instituted with the criminal action, unless
expressly waived or reserved for separate application by the
offended party.
8

The circumstances attendant to the criminal case yields the
conclusion that petitioner had opted to base his cause of action
against jeep-owner-driver Salazar on culpa criminal and not
on culpa aquiliana as evidenced by his active participation and
intervention in the prosecution of the criminal suit against said
Salazar. The latter's civil liability continued to be involved in the
criminal action until its termination. Such being the case, there
was no need for petitioner to have reserved his right to file a
separate civil action as his action for civil liability was deemed
impliedly instituted in Criminal Case No. SM-228.
Neither would an independent civil action he. Noteworthy is the
basis of the acquittal of jeep-owner-driver Salazar in the criminal
case, expounded by the trial Court in this wise:
In view of what has been proven and
established during the trial, accused Freddie
Montoya would be held able for having
bumped and hit the rear portion of the jeep
driven by the accused Rodolfo Salazar,
Considering that the collision between the
jeep driven by Rodolfo Salazar and the car
owned and driven by Edgardo Mendoza was
the result of the hitting on the rear of the jeep
by the truck driven by Freddie Montoya, this
Court behaves that accused Rodolfo Salazar
cannot be held able for the damages
sustained by Edgardo Mendoza's car.
9

Crystal clear is the trial Court's pronouncement that under the
facts of the case, jeep-owner-driver Salazar cannot be held liable
for the damages sustained by petitioner's car. In other words, "the
fact from which the civil might arise did not exist. " Accordingly,
inasmuch as petitioner's cause of action as against jeep-owner-
driver Salazar isex- delictu, founded on Article 100 of the Revised
Penal Code, the civil action must be held to have been
extinguished in consonance with Section 3(c), Rule 111 of the
Rules of Court
10
which provides:
Sec. 3. Other civil actions arising from
offenses. In all cases not included in the
preceding section the following rules shall be
observed:
xxx xxx xxx
c) Extinction of the penal action does not
carry with it extinction of the civil, unless the
extinction proceeds from a declaration in a
final judgment that the fact from which the
civil night arise did not exist. ...
And even if petitioner's cause of action as against jeep-owner-
driver Salazar were not ex-delictu, the end result would be the
same, it being clear from the judgment in the criminal case that
Salazar's acquittal was not based upon reasonable doubt,
consequently, a civil action for damages can no longer be
instituted. This is explicitly provided for in Article 29 of the Civil
Code quoted here under:
Art. 29. When the accused in a criminal
prosecution is acquitted on the ground that
his guilt has not been proved beyond
reasonable doubt, a civil action for damages
for the same act or omission may be
instituted. Such action requires only a
preponderance of evidence ...
If in a criminal case the judgment of acquittal
is based upon reasonable doubt, the court
shall so declare. In the absence of any
declaration to that effect, it may be inferred
from the text of the decision whether or not
the acquittal is due to that ground.
In so far as the suit against jeep-owner-driver Salazar is
concerned, therefore, we sustain respondent Judge's Order dated
January 30, 1971 dismissing the complaint, albeit on different
grounds.
WHEREFORE, 1) the Order dated September 12, 1970 dismissing
Civil Case No. 80803 against private respondent Felino Timbol is
set aside, and respondent Judge, or his successor, hereby
ordered to proceed with the hearing on the merits; 2) but the
Orders dated January 30, 1971 and February 23, 1971
dismissing the Complaint in Civil Case No. 80803 against
respondent Rodolfo Salazar are hereby upheld.
No costs.
SO ORDERED.
G.R. No. L-10605 June 30, 1958
PRECILLANO NECESITO, ETC., plaintiff-appellant,
vs.
NATIVIDAD PARAS, ET AL., defendants-appellees.
x---------------------------------------------------------x
G.R. No. L-10606 June 30, 1958
GERMAN NECESITO, ET AL., plaintiffs-appellants,
vs.
NATIVIDAD PARAS, ET AL., defendants-appellees.
REYES, J. B. L., J.:
These cases involve ex contractu against the owners and operators
of the common carrier known as Philippine Rabbit Bus Lines,
filed by one passenger, and the heirs of another, who injured as a
result of the fall into a river of the vehicle in which they were
riding.
In the morning of January 28, 1964, Severina Garces and her
one-year old son, Precillano Necesito, carrying vegetables,
boarded passenger auto truck or bus No. 199 of the Philippine
Rabbit Bus Lines at Agno, Pangasinan. The passenger truck,
driven by Francisco Bandonell, then proceeded on its regular run
from Agno to Manila. After passing Mangatarem, Pangasinan
truck No. 199 entered a wooden bridge, but the front wheels
swerved to the right; the driver lost control, and after wrecking
the bridge's wooden rails, the truck fell on its right side into a
creek where water was breast deep. The mother, Severina Garces,
was drowned; the son, Precillano Necesito, was injured, suffering
abrasions and fracture of the left femur. He was brought to the
Provincial Hospital at Dagupan, where the fracture was set but
with fragments one centimeter out of line. The money, wrist
watch and cargo of vegetables were lost.
Two actions for damages and attorney's fees totalling over
P85,000 having been filed in the Court of First Instance of Tarlac
(Cases Nos. 908 and 909) against the carrier, the latter pleaded
that the accident was due to "engine or mechanical trouble"
independent or beyond the control of the defendants or of the
driver Bandonell.
After joint trial, the Court of First Instance found that the bus
was proceeding slowly due to the bad condition of the road; that
the accident was caused by the fracture of the right steering
knuckle, which was defective in that its center or core was not

18
Karen Rizel B. Abella
compact but "bubbled and cellulous", a condition that could not
be known or ascertained by the carrier despite the fact that
regular thirty-day inspections were made of the steering knuckle,
since the steel exterior was smooth and shiny to the depth of
3/16 of an inch all around; that the knuckles are designed and
manufactured for heavy duty and may last up to ten years; that
the knuckle of bus No. 199 that broke on January 28, 1954, was
last inspected on January 5, 1954, and was due to be inspected
again on February 5th. Hence, the trial court, holding that the
accident was exclusively due to fortuitous event, dismissed both
actions. Plaintiffs appealed directly to this Court in view of the
amount in controversy.
We are inclined to agree with the trial court that it is not likely
that bus No. 199 of the Philippine Rabbit Lines was driven over
the deeply rutted road leading to the bridge at a speed of 50 miles
per hour, as testified for the plaintiffs. Such conduct on the part
of the driver would have provoked instant and vehement protest
on the part of the passengers because of the attendant
discomfort, and there is no trace of any such complaint in the
records. We are thus forced to assume that the proximate cause
of the accident was the reduced strength of the steering knuckle
of the vehicle caused by defects in casting it. While appellants
hint that the broken knuckle exhibited in court was not the real
fitting attached to the truck at the time of the accident, the
records they registered no objection on that ground at the trial
below. The issue is thus reduced to the question whether or not
the carrier is liable for the manufacturing defect of the steering
knuckle, and whether the evidence discloses that in regard
thereto the carrier exercised the diligence required by law (Art.
1755, new Civil Code).
ART. 1755. A common carrier is bound to carry the
passengers safely as far as human care and foresight
can provide, using the utmost diligence of very cautious
persons, with a due regard for the all the
circumstances.
It is clear that the carrier is not an insurer of the passengers'
safety. His liability rests upon negligence, his failure to exercise
the "utmost" degree of diligence that the law requires, and by Art.
1756, in case of a passenger's death or injury the carrier bears
the burden of satisfying the court that he has duly discharged the
duty of prudence required. In the American law, where the carrier
is held to the same degree of diligence as under the new Civil
Code, the rule on the liability of carriers for defects of equipment
is thus expressed: "The preponderance of authority is in favor of
the doctrine that a passenger is entitled to recover damages from
a carrier for an injury resulting from a defect in an appliance
purchased from a manufacturer, whenever it appears that the
defect would have been discovered by the carrier if it had
exercised the degree of care which under the circumstances was
incumbent upon it, with regard to inspection and application of
the necessary tests. For the purposes of this doctrine, the
manufacturer is considered as being in law the agent or servant
of the carrier, as far as regards the work of constructing the
appliance. According to this theory, the good repute of the
manufacturer will not relieve the carrier from liability" (10 Am.
Jur. 205, s, 1324; see also Pennsylvania R. Co. vs. Roy, 102 U. S.
451; 20 L. Ed. 141; Southern R. Co. vs. Hussey, 74 ALR 1172; 42
Fed. 2d 70; and Ed Note, 29 ALR 788; Ann. Cas. 1916E 929).
The rationale of the carrier's liability is the fact that the passenger
has neither choice nor control over the carrier in the selection
and use of the equipment and appliances in use by the carrier.
Having no privity whatever with the manufacturer or vendor of
the defective equipment, the passenger has no remedy against
him, while the carrier usually has. It is but logical, therefore, that
the carrier, while not in insurer of the safety of his passengers,
should nevertheless be held to answer for the flaws of his
equipment if such flaws were at all discoverable. Thus Hannen,
J., in Francis vs. Cockrell, LR 5 Q. B. 184, said:
In the ordinary course of things, the passenger does not
know whether the carrier has himself manufactured the
means of carriage, or contracted with someone else for
its manufacture. If the carrier has contracted with
someone else the passenger does not usually know who
that person is, and in no case has he any share in the
selection. The liability of the manufacturer must depend
on the terms of the contract between him and the
carrier, of which the passenger has no knowledge, and
over which he can have no control, while the carrier can
introduce what stipulations and take what securities he
may think proper. For injury resulting to the carrier
himself by the manufacturer's want of care, the carrier
has a remedy against the manufacturer; but the
passenger has no remedy against the manufacturer for
damage arising from a mere breach of contract with the
carrier . . . . Unless, therefore, the presumed intention
of the parties be that the passenger should, in the event
of his being injured by the breach of the manufacturer's
contract, of which he has no knowledge, be without
remedy, the only way in which effect can be given to a
different intention is by supposing that the carrier is to
be responsible to the passenger, and to look for his
indemnity to the person whom he selected and whose
breach of contract has caused the mischief. (29 ALR
789)
And in the leading case of Morgan vs. Chesapeake & O. R. Co. 15
LRA (NS) 790, 16 Ann. Cas. 608, the Court, in holding the carrier
responsible for damages caused by the fracture of a car axle, due
to a "sand hole" in the course of moulding the axle, made the
following observations.
The carrier, in consideration of certain well-known and
highly valuable rights granted to it by the public,
undertakes certain duties toward the public, among
them being to provide itself with suitable and safe cars
and vehicles in which carry the traveling public. There
is no such duty on the manufacturer of the cars. There
is no reciprocal legal relation between him and the
public in this respect. When the carrier elects to have
another build its cars, it ought not to be absolved by
that facts from its duty to the public to furnish safe
cars. The carrier cannot lessen its responsibility by
shifting its undertaking to another's shoulders. Its duty
to furnish safe cars is side by side with its duty to
furnish safe track, and to operate them in a safe
manner. None of its duties in these respects can be
sublet so as to relieve it from the full measure primarily
exacted of it by law. The carrier selects the
manufacturer of its cars, if it does not itself construct
them, precisely as it does those who grade its road, and
lay its tracks, and operate its trains. That it does not
exercise control over the former is because it elects to
place that matter in the hands of the manufacturer,
instead of retaining the supervising control itself. The
manufacturer should be deemed the agent of the carrier
as respects its duty to select the material out of which
its cars and locomotive are built, as well as in
inspecting each step of their construction. If there be
tests known to the crafts of car builders, or iron
moulders, by which such defects might be discovered
before the part was incorporated into the car, then the
failure of the manufacturer to make the test will be
deemed a failure by the carrier to make it. This is not a
vicarious responsibility. It extends, as the necessity of
this business demands, the rule of respondeat superior
to a situation which falls clearly within its scope and
spirit. Where an injury is inflicted upon a passenger by
the breaking or wrecking of a part of the train on which
he is riding, it is presumably the result of negligence at
some point by the carrier. As stated by Judge Story, in
Story on Bailments, sec. 601a: "When the injury or
damage happens to the passenger by the breaking down
or overturning of the coach, or by any other accident
occurring on the ground, the presumption prima facie is
that it occurred by the negligence of the coachmen, and
onus probandi is on the proprietors of the coach to
establish that there has been no negligence whatever,
and that the damage or injury has been occasioned by
inevitable casualty, or by some cause which human
care and foresight could not prevent; for the law will, in
tenderness to human life and limb, hold the proprietors
liable for the slightest negligence, and will compel them
to repel by satisfactory proofs every imputation thereof."
When the passenger has proved his injury as the result
of a breakage in the car or the wrecking of the train on
which he was being carried, whether the defect was in
the particular car in which he was riding or not, the
burden is then cast upon the carrier to show that it was
due to a cause or causes which the exercise of the
utmost human skill and foresight could not prevent.
And the carrier in this connection must show, if the
accident was due to a latent defect in the material or
construction of the car, that not only could it not have
discovered the defect by the exercise of such care, but
that the builders could not by the exercise of the same
care have discovered the defect or foreseen the result.
This rule applies the same whether the defective car
belonged to the carrier or not.
In the case now before us, the record is to the effect that the only
test applied to the steering knuckle in question was a purely
visual inspection every thirty days, to see if any cracks developed.
It nowhere appears that either the manufacturer or the carrier at
any time tested the steering knuckle to ascertain whether its
strength was up to standard, or that it had no hidden flaws would
impair that strength. And yet the carrier must have been aware of
the critical importance of the knuckle's resistance; that its failure
or breakage would result in loss of balance and steering control of
the bus, with disastrous effects upon the passengers. No
argument is required to establish that a visual inspection could
not directly determine whether the resistance of this critically
important part was not impaired. Nor has it been shown that the

19
Karen Rizel B. Abella
weakening of the knuckle was impossible to detect by any known
test; on the contrary, there is testimony that it could be detected.
We are satisfied that the periodical visual inspection of the
steering knuckle as practiced by the carrier's agents did not
measure up to the required legal standard of "utmost diligence of
very cautious persons" "as far as human care and foresight can
provide", and therefore that the knuckle's failure can not be
considered a fortuitous event that exempts the carrier from
responsibility (Lasam vs. Smith, 45 Phil. 657; Son vs. Cebu
Autobus Co., 94 Phil., 892.)
It may be impracticable, as appellee argues, to require of carriers
to test the strength of each and every part of its vehicles before
each trip; but we are of the opinion that a due regard for the
carrier's obligations toward the traveling public demands
adequate periodical tests to determine the condition and strength
of those vehicle portions the failure of which may endanger the
safe of the passengers.
As to the damages suffered by the plaintiffs, we agree with
appellee that no allowance may be made for moral damages, since
under Article 2220 of the new Civil Code, in case of suits for
breach of contract, moral damages are recoverable only where the
defendant acted fraudulently or in bad faith, and there is none in
the case before us. As to exemplary damages, the carrier has not
acted in a "wanton, fraudulent, reckless, oppressive or malevolent
manner" to warrant their award. Hence, we believe that for the
minor Precillano Necesito (G. R. No. L-10605), an indemnity of
P5,000 would be adequate for the abrasions and fracture of the
femur, including medical and hospitalization expenses, there
being no evidence that there would be any permanent impairment
of his faculties or bodily functions, beyond the lack of anatomical
symmetry. As for the death of Severina Garces (G. R. No. L-
10606) who was 33 years old, with seven minor children when
she died, her heirs are obviously entitled to indemnity not only for
the incidental loses of property (cash, wrist watch and
merchandise) worth P394 that she carried at the time of the
accident and for the burial expenses of P490, but also for the loss
of her earnings (shown to average P120 a month) and for the
deprivation of her protection, guidance and company. In our
judgment, an award of P15,000 would be adequate (cf Alcantara
vs. Surro, 49 Off. Gaz. 2769; 93 Phil., 472).
The low income of the plaintiffs-appellants makes an award for
attorney's fees just and equitable (Civil Code, Art. 2208, par. 11).
Considering that he two cases filed were tried jointly, a fee of
P3,500 would be reasonable.
In view of the foregoing, the decision appealed from is reversed,
and the defendants-appellees are sentenced to indemnify the
plaintiffs-appellants in the following amounts: P5,000 to
Precillano Necesito, and P15,000 to the heirs of the deceased
Severina Garces, plus P3,500 by way of attorney's fees and
litigation expenses. Costs against defendants-appellees. So
ordered.
Paras, C. J., Bengzon, Reyes, A., Bautista Angelo, Concepcion, and
Endencia, JJ., concur.
Felix, J., concurs in the result.
R E S O L U T I O N
September 11, 1958
REYES, J. B. L., J.:
Defendants-appellees have Submitted a motion asking this Court
to reconsider its decision of June 30, 1958, and that the same be
modified with respect to (1) its holding the carrier liable for the
breakage of the steering knuckle that caused the autobus No. 199
to overturn, whereby the passengers riding in it were injured; (2)
the damages awarded, that appellees argue to be excessive; and
(3) the award of attorneys' fees.
(1) The rule prevailing in this jurisdiction as established in
previous decisions of this Court, cited in our main opinion, is that
a carrier is liable to its passengers for damages caused by
mechanical defects of the conveyance. As early as 1924, in Lasam
vs. Smith, 45 Phil. 659 this Court ruled:
As far as the record shows, the accident was caused
either by defects in the automobile or else through the
negligence of its driver. That is not caso fortuito.
And in Son vs. Cebu Autobus Company, 94 Phil., 892, this Court
held a common carrier liable in damages to passenger for injuries
cause by an accident due to the breakage of a faulty drag-link
spring.
It can be seen that while the courts of the United States are at
variance on the question of a carrier's liability for latent
mechanical defects, the rule in this jurisdiction has been
consistent in holding the carrier responsible. This Court has
quoted from American and English decisions, not because it felt
bound to follow the same, but merely in approval of the rationale
of the rule as expressed therein, since the previous Philippine
cases did not enlarge on the ideas underlying the doctrine
established thereby.
The new evidence sought to be introduced do not warrant the
grant of a new trial, since the proposed proof available when the
original trial was held. Said evidence is not newly discovered.
(2) With regard to the indemnity awarded to the child Precilliano
Necesito, the injuries suffered by him are incapable of accurate
pecuniary estimation, particularly because the full effect of the
injury is not ascertainable immediately. This uncertainty,
however, does not preclude the right to an indemnity, since the
injury is patent and not denied (Civil Code, Art. 2224). The
reasons behind this award are expounded by the Code
Commission in its report:
There are cases where from the nature of the case,
definite proof of pecuniary loss cannot be offered,
although the court is convinced that there has been
such loss. For instance, injury to one's commercial
credit or to the goodwill of a business firm is often hard
to show with certainty in terms of money. Should
damages be denied for that reason? The judge should
be empowered to calculate moderate damages in such
cases, rather than that the plaintiff should suffer,
without redress, from the defendant's wrongful act."
(Report of the Code Commission, p. 75)
In awarding to the heirs of the deceased Severina Garces an
indemnity for the loss of her "guidance, protection and company,"
although it is but moral damage, the Court took into account that
the case of a passenger who dies in the course of an accident, due
to the carrier's negligence constitutes an exception to the general
rule. While, as pointed out in the main decision, under Article
2220 of the new Civil Code there can be no recovery of moral
damages for a breach of contract in the absence of fraud malice
or bad faith, the case of a violation of the contract of carriage
leading to a passenger's death escapes this general rule, in view
of Article 1764 in connection with Article 2206, No. 3 of the new
Civil Code.
ART. 1764. Damages in cases comprised in this Section
shall be awarded in accordance with Title XVIII of this
Book, concerning Damages. Article 2206 shall also
apply to the death of a passenger caused by the breach
of contract by a comman carrier. ART. 2206. . . .
(3) The spouse, legitimate and eligimate descendants
and ascendants of the deceased may demand moral
damages for mental anguish by reason of the death of
the deceased.
Being a special rule limited to cases of fatal injuries, these articles
prevail over the general rule of Art. 2220. Special provisions
control general ones (Lichauco & Co. vs. Apostol, 44 Phil. 138;
Sancio vs. Lizarraga, 55 Phil. 601).
It thus appears that under the new Civil Code, in case of accident
due to a carrier's negligence, the heirs of a deceased passenger
may recover moral damages, even though a passenger who is
injured, but manages to survive, is not entitled to them. There is,
therefore, no conflict between our main decision in the instant
case and that of Cachero vs. Manila Yellow Taxi Cab Co., 101
Phil., 523, where the passenger suffered injuries, but did not lose
his life.
(3) In the Cachero case this Court disallowed attorneys' fees to
the injured plaintiff because the litigation arose out of his
exaggerated and unreasonable deeds for an indemnity that was
out of proportion with the compensatory damages to which he
was solely entitled. But in the present case, plaintiffs' original
claims can not be deemed a priori wholly unreasonable, since
they had a right to indemnity for moral damages besides
compensatory ones, and moral damages are not determined by
set and invariable bounds.
Neither does the fact that the contract between the passengers
and their counsel was on a contingent basis affect the former's
right to counsel fees. As pointed out for appellants, the Court's
award is an party and not to counsel. A litigant who

20
Karen Rizel B. Abella
improvidently stipulate higher counsel fees than those to which
he is lawfully entitled, does not for that reason earn the right to a
larger indemnity; but, by parity of reasoning, he should not be
deprived of counsel fees if by law he is entitled to recover them.
We find no reason to alter the main decision heretofore rendered.
Ultimately, the position taken by this Court is that a common
carrier's contract is not to be regarded as a game of chance
wherein the passenger stakes his limb and life against the
carrier's property and profits.
Wherefore, the motion for reconsideration is hereby denied. So
ordered.
G.R. No. 159617 August 8, 2007
ROBERTO C. SICAM and AGENCIA de R.C. SICAM,
INC., petitioners,
vs.
LULU V. JORGE and CESAR JORGE, respondents.
Before us is a Petition for Review on Certiorari filed by Roberto C.
Sicam, Jr. (petitioner Sicam) and Agencia deR.C. Sicam, Inc.
(petitioner corporation) seeking to annul the Decision
1
of the
Court of Appeals dated March 31, 2003, and its Resolution
2
dated
August 8, 2003, in CA G.R. CV No. 56633.
It appears that on different dates from September to October
1987, Lulu V. Jorge (respondent Lulu) pawned several pieces of
jewelry with Agencia de R. C. Sicam located at No. 17 Aguirre
Ave., BF Homes Paraaque, Metro Manila, to secure a loan in the
total amount of P59,500.00.
On October 19, 1987, two armed men entered the pawnshop and
took away whatever cash and jewelry were found inside the
pawnshop vault. The incident was entered in the police blotter of
the Southern Police District, Paraaque Police Station as follows:
Investigation shows that at above TDPO, while victims
were inside the office, two (2) male unidentified persons
entered into the said office with guns drawn.
Suspects(sic) (1) went straight inside and poked his gun
toward Romeo Sicam and thereby tied him with an
electric wire while suspects (sic) (2) poked his gun
toward Divina Mata and Isabelita Rodriguez and
ordered them to lay (sic) face flat on the floor. Suspects
asked forcibly the case and assorted pawned jewelries
items mentioned above.
Suspects after taking the money and jewelries fled on
board a Marson Toyota unidentified plate number.
3

Petitioner Sicam sent respondent Lulu a letter dated October 19,
1987 informing her of the loss of her jewelry due to the robbery
incident in the pawnshop. On November 2, 1987, respondent
Lulu then wrote a letter
4
to petitioner Sicam expressing disbelief
stating that when the robbery happened, all jewelry pawned were
deposited with Far East Bank near the pawnshop since it had
been the practice that before they could withdraw, advance notice
must be given to the pawnshop so it could withdraw the jewelry
from the bank. Respondent Lulu then requested petitioner Sicam
to prepare the pawned jewelry for withdrawal on November 6,
1987 but petitioner Sicam failed to return the jewelry.
On September 28, 1988, respondent Lulu joined by her husband,
Cesar Jorge, filed a complaint against petitioner Sicam with the
Regional Trial Court of Makati seeking indemnification for the
loss of pawned jewelry and payment of actual, moral and
exemplary damages as well as attorney's fees. The case was
docketed as Civil Case No. 88-2035.
Petitioner Sicam filed his Answer contending that he is not the
real party-in-interest as the pawnshop was incorporated on April
20, 1987 and known as Agencia de R.C. Sicam, Inc; that
petitioner corporation had exercised due care and diligence in the
safekeeping of the articles pledged with it and could not be made
liable for an event that is fortuitous.
Respondents subsequently filed an Amended Complaint to
include petitioner corporation.
Thereafter, petitioner Sicam filed a Motion to Dismiss as far as he
is concerned considering that he is not the real party-in-interest.
Respondents opposed the same. The RTC denied the motion in an
Order dated November 8, 1989.
5

After trial on the merits, the RTC rendered its Decision
6
dated
January 12, 1993, dismissing respondents complaint as well as
petitioners counterclaim. The RTC held that petitioner Sicam
could not be made personally liable for a claim arising out of a
corporate transaction; that in the Amended Complaint of
respondents, they asserted that "plaintiff pawned assorted
jewelries in defendants' pawnshop"; and that as a consequence of
the separate juridical personality of a corporation, the corporate
debt or credit is not the debt or credit of a stockholder.
The RTC further ruled that petitioner corporation could not be
held liable for the loss of the pawned jewelry since it had not been
rebutted by respondents that the loss of the pledged pieces of
jewelry in the possession of the corporation was occasioned by
armed robbery; that robbery is a fortuitous event which exempts
the victim from liability for the loss, citing the case of Austria v.
Court of Appeals;
7
and that the parties transaction was that of a
pledgor and pledgee and under Art. 1174 of the Civil Code, the
pawnshop as a pledgee is not responsible for those events which
could not be foreseen.
Respondents appealed the RTC Decision to the CA. In a Decision
dated March 31, 2003, the CA reversed the RTC, the dispositive
portion of which reads as follows:
WHEREFORE, premises considered, the instant Appeal
is GRANTED, and the Decision dated January 12,
1993,of the Regional Trial Court of Makati, Branch 62,
is hereby REVERSED and SET ASIDE, ordering the
appellees to pay appellants the actual value of the lost
jewelry amounting to P272,000.00, and attorney' fees
of P27,200.00.
8

In finding petitioner Sicam liable together with petitioner
corporation, the CA applied the doctrine of piercing the veil of
corporate entity reasoning that respondents were misled into
thinking that they were dealing with the pawnshop owned by
petitioner Sicam as all the pawnshop tickets issued to them bear
the words "Agencia de R.C. Sicam"; and that there was no
indication on the pawnshop tickets that it was the petitioner
corporation that owned the pawnshop which explained why
respondents had to amend their complaint impleading petitioner
corporation.
The CA further held that the corresponding diligence required of a
pawnshop is that it should take steps to secure and protect the
pledged items and should take steps to insure itself against the
loss of articles which are entrusted to its custody as it derives
earnings from the pawnshop trade which petitioners failed to do;
that Austria is not applicable to this case since the robbery
incident happened in 1961 when the criminality had not as yet
reached the levels attained in the present day; that they are at
least guilty of contributory negligence and should be held liable
for the loss of jewelries; and that robberies and hold-ups are
foreseeable risks in that those engaged in the pawnshop business
are expected to foresee.
The CA concluded that both petitioners should be jointly and
severally held liable to respondents for the loss of the pawned
jewelry.
Petitioners motion for reconsideration was denied in a Resolution
dated August 8, 2003.
Hence, the instant petition for review with the following
assignment of errors:
THE COURT OF APPEALS ERRED AND WHEN IT DID,
IT OPENED ITSELF TO REVERSAL, WHEN IT
ADOPTED UNCRITICALLY (IN FACT IT REPRODUCED
AS ITS OWN WITHOUT IN THE MEANTIME
ACKNOWLEDGING IT) WHAT THE RESPONDENTS
ARGUED IN THEIR BRIEF, WHICH ARGUMENT WAS
PALPABLY UNSUSTAINABLE.
THE COURT OF APPEALS ERRED, AND WHEN IT DID,
IT OPENED ITSELF TO REVERSAL BY THIS
HONORABLE COURT, WHEN IT AGAIN ADOPTED
UNCRITICALLY (BUT WITHOUT ACKNOWLEDGING IT)
THE SUBMISSIONS OF THE RESPONDENTS IN THEIR
BRIEF WITHOUT ADDING ANYTHING MORE THERETO
DESPITE THE FACT THAT THE SAID ARGUMENT OF
THE RESPONDENTS COULD NOT HAVE BEEN
SUSTAINED IN VIEW OF UNREBUTTED EVIDENCE ON
RECORD.
9

Anent the first assigned error, petitioners point out that the CAs
finding that petitioner Sicam is personally liable for the loss of the

21
Karen Rizel B. Abella
pawned jewelries is "a virtual and uncritical reproduction of the
arguments set out on pp. 5-6 of the Appellants brief."
10

Petitioners argue that the reproduced arguments of respondents
in their Appellants Brief suffer from infirmities, as follows:
(1) Respondents conclusively asserted in paragraph 2 of
their Amended Complaint that Agencia de R.C. Sicam,
Inc. is the present owner of Agencia de R.C. Sicam
Pawnshop, and therefore, the CA cannot rule against
said conclusive assertion of respondents;
(2) The issue resolved against petitioner Sicam was not
among those raised and litigated in the trial court; and
(3) By reason of the above infirmities, it was error for
the CA to have pierced the corporate veil since a
corporation has a personality distinct and separate from
its individual stockholders or members.
Anent the second error, petitioners point out that the CA finding
on their negligence is likewise an unedited reproduction of
respondents brief which had the following defects:
(1) There were unrebutted evidence on record that
petitioners had observed the diligence required of them,
i.e, they wanted to open a vault with a nearby bank for
purposes of safekeeping the pawned articles but was
discouraged by the Central Bank (CB) since CB rules
provide that they can only store the pawned articles in a
vault inside the pawnshop premises and no other place;
(2) Petitioners were adjudged negligent as they did not
take insurance against the loss of the pledged jelweries,
but it is judicial notice that due to high incidence of
crimes, insurance companies refused to cover
pawnshops and banks because of high probability of
losses due to robberies;
(3) In Hernandez v. Chairman, Commission on
Audit (179 SCRA 39, 45-46), the victim of robbery was
exonerated from liability for the sum of money
belonging to others and lost by him to robbers.
Respondents filed their Comment and petitioners filed their Reply
thereto. The parties subsequently submitted their respective
Memoranda.
We find no merit in the petition.
To begin with, although it is true that indeed the CA findings were
exact reproductions of the arguments raised in respondents
(appellants) brief filed with the CA, we find the same to be not
fatally infirmed. Upon examination of the Decision, we find that it
expressed clearly and distinctly the facts and the law on which it
is based as required by Section 8, Article VIII of the Constitution.
The discretion to decide a case one way or another is broad
enough to justify the adoption of the arguments put forth by one
of the parties, as long as these are legally tenable and supported
by law and the facts on records.
11

Our jurisdiction under Rule 45 of the Rules of Court is limited to
the review of errors of law committed by the appellate court.
Generally, the findings of fact of the appellate court are deemed
conclusive and we are not duty-bound to analyze and calibrate all
over again the evidence adduced by the parties in the court a
quo.
12
This rule, however, is not without exceptions, such as
where the factual findings of the Court of Appeals and the trial
court are conflicting or contradictory
13
as is obtaining in the
instant case.
However, after a careful examination of the records, we find no
justification to absolve petitioner Sicam from liability.
The CA correctly pierced the veil of the corporate fiction and
adjudged petitioner Sicam liable together with petitioner
corporation. The rule is that the veil of corporate fiction may be
pierced when made as a shield to perpetrate fraud and/or
confuse legitimate issues.
14
The theory of corporate entity was
not meant to promote unfair objectives or otherwise to shield
them.
15

Notably, the evidence on record shows that at the time
respondent Lulu pawned her jewelry, the pawnshop was owned
by petitioner Sicam himself. As correctly observed by the CA, in
all the pawnshop receipts issued to respondent Lulu in
September 1987, all bear the words "Agencia de R. C. Sicam,"
notwithstanding that the pawnshop was allegedly incorporated in
April 1987. The receipts issued after such alleged incorporation
were still in the name of "Agencia de R. C. Sicam," thus inevitably
misleading, or at the very least, creating the wrong impression to
respondents and the public as well, that the pawnshop was
owned solely by petitioner Sicam and not by a corporation.
Even petitioners counsel, Atty. Marcial T. Balgos, in his
letter
16
dated October 15, 1987 addressed to the Central Bank,
expressly referred to petitioner Sicam as the proprietor of the
pawnshop notwithstanding the alleged incorporation in April
1987.
We also find no merit in petitioners' argument that since
respondents had alleged in their Amended Complaint that
petitioner corporation is the present owner of the pawnshop, the
CA is bound to decide the case on that basis.
Section 4 Rule 129 of the Rules of Court provides that an
admission, verbal or written, made by a party in the course of the
proceedings in the same case, does not require proof. The
admission may be contradicted only by showing that it was made
through palpable mistake or that no such admission was made.
Thus, the general rule that a judicial admission is conclusive
upon the party making it and does not require proof, admits of
two exceptions, to wit: (1) when it is shown that such admission
was made through palpable mistake, and (2) when it is shown
that no such admission was in fact made. The latter exception
allows one to contradict an admission by denying that he
made such an admission.
17

The Committee on the Revision of the Rules of Court explained
the second exception in this wise:
x x x if a party invokes an "admission" by an adverse
party, but cites the admission "out of context," then the
one making the "admission" may show that he made no
"such" admission, or that his admission was taken
out of context.
x x x that the party can also show that he made no
"such admission", i.e., not in the sense in which the
admission is made to appear.
That is the reason for the modifier "such" because if the
rule simply states that the admission may be
contradicted by showing that "no admission was made,"
the rule would not really be providing for a
contradiction of the admission but just a
denial.
18
(Emphasis supplied).
While it is true that respondents alleged in their Amended
Complaint that petitioner corporation is the present owner of the
pawnshop, they did so only because petitioner Sicam alleged in
his Answer to the original complaint filed against him that he was
not the real party-in-interest as the pawnshop was incorporated
in April 1987. Moreover, a reading of the Amended Complaint in
its entirety shows that respondents referred to both petitioner
Sicam and petitioner corporation where they (respondents)
pawned their assorted pieces of jewelry and ascribed to both the
failure to observe due diligence commensurate with the business
which resulted in the loss of their pawned jewelry.
Markedly, respondents, in their Opposition to petitioners Motion
to Dismiss Amended Complaint, insofar as petitioner Sicam is
concerned, averred as follows:
Roberto C. Sicam was named the defendant in the
original complaint because the pawnshop tickets
involved in this case did not show that the R.C. Sicam
Pawnshop was a corporation. In paragraph 1 of his
Answer, he admitted the allegations in paragraph 1 and
2 of the Complaint. He merely added "that defendant is
not now the real party in interest in this case."
It was defendant Sicam's omission to correct the
pawnshop tickets used in the subject transactions in
this case which was the cause of the instant action. He
cannot now ask for the dismissal of the complaint
against him simply on the mere allegation that his
pawnshop business is now incorporated. It is a matter
of defense, the merit of which can only be reached after
consideration of the evidence to be presented in due
course.
19


22
Karen Rizel B. Abella
Unmistakably, the alleged admission made in respondents'
Amended Complaint was taken "out of context" by petitioner
Sicam to suit his own purpose. Ineluctably, the fact that
petitioner Sicam continued to issue pawnshop receipts under his
name and not under the corporation's name militates for the
piercing of the corporate veil.
We likewise find no merit in petitioners' contention that the CA
erred in piercing the veil of corporate fiction of petitioner
corporation, as it was not an issue raised and litigated before the
RTC.
Petitioner Sicam had alleged in his Answer filed with the trial
court that he was not the real party-in-interest because since
April 20, 1987, the pawnshop business initiated by him was
incorporated and known as Agencia deR.C. Sicam. In the pre-trial
brief filed by petitioner Sicam, he submitted that as far as he was
concerned, the basic issue was whether he is the real party in
interest against whom the complaint should be directed.
20
In fact,
he subsequently moved for the dismissal of the complaint as to
him but was not favorably acted upon by the trial court.
Moreover, the issue was squarely passed upon, although
erroneously, by the trial court in its Decision in this manner:
x x x The defendant Roberto Sicam, Jr likewise denies
liability as far as he is concerned for the reason that he
cannot be made personally liable for a claim arising
from a corporate transaction.
This Court sustains the contention of the defendant
Roberto C. Sicam, Jr. The amended complaint itself
asserts that "plaintiff pawned assorted jewelries in
defendant's pawnshop." It has been held that " as a
consequence of the separate juridical personality of a
corporation, the corporate debt or credit is not the debt
or credit of the stockholder, nor is the stockholder's
debt or credit that of a corporation.
21

Clearly, in view of the alleged incorporation of the pawnshop, the
issue of whether petitioner Sicam is personally liable is
inextricably connected with the determination of the question
whether the doctrine of piercing the corporate veil should or
should not apply to the case.
The next question is whether petitioners are liable for the loss of
the pawned articles in their possession.
Petitioners insist that they are not liable since robbery is a
fortuitous event and they are not negligent at all.
We are not persuaded.
Article 1174 of the Civil Code provides:
Art. 1174. Except in cases expressly specified by the
law, or when it is otherwise declared by stipulation, or
when the nature of the obligation requires the
assumption of risk, no person shall be responsible for
those events which could not be foreseen or which,
though foreseen, were inevitable.
Fortuitous events by definition are extraordinary events not
foreseeable or avoidable. It is therefore, not enough that the event
should not have been foreseen or anticipated, as is commonly
believed but it must be one impossible to foresee or to avoid. The
mere difficulty to foresee the happening is not impossibility to
foresee the same.
22

To constitute a fortuitous event, the following elements must
concur: (a) the cause of the unforeseen and unexpected
occurrence or of the failure of the debtor to comply with
obligations must be independent of human will; (b) it must be
impossible to foresee the event that constitutes
the caso fortuito or, if it can be foreseen, it must be impossible to
avoid; (c) the occurrence must be such as to render it impossible
for the debtor to fulfill obligations in a normal manner; and, (d)
the obligor must be free from any participation in the aggravation
of the injury or loss.
23

The burden of proving that the loss was due to a fortuitous event
rests on him who invokes it.
24
And, in order for a fortuitous event
to exempt one from liability, it is necessary that one has
committed no negligence or misconduct that may have
occasioned the loss.
25

It has been held that an act of God cannot be invoked to protect a
person who has failed to take steps to forestall the possible
adverse consequences of such a loss. One's negligence may have
concurred with an act of God in producing damage and injury to
another; nonetheless, showing that the immediate or proximate
cause of the damage or injury was a fortuitous event would not
exempt one from liability. When the effect is found to be partly
the result of a person's participation -- whether by active
intervention, neglect or failure to act -- the whole occurrence is
humanized and removed from the rules applicable to acts of
God.
26

Petitioner Sicam had testified that there was a security guard in
their pawnshop at the time of the robbery. He likewise testified
that when he started the pawnshop business in 1983, he thought
of opening a vault with the nearby bank for the purpose of
safekeeping the valuables but was discouraged by the Central
Bank since pawned articles should only be stored in a vault
inside the pawnshop. The very measures which petitioners had
allegedly adopted show that to them the possibility of robbery was
not only foreseeable, but actually foreseen and anticipated.
Petitioner Sicams testimony, in effect, contradicts petitioners
defense of fortuitous event.
Moreover, petitioners failed to show that they were free from any
negligence by which the loss of the pawned jewelry may have
been occasioned.
Robbery per se, just like carnapping, is not a fortuitous event. It
does not foreclose the possibility of negligence on the part of
herein petitioners. In Co v. Court of Appeals,
27
the Court held:
It is not a defense for a repair shop of motor vehicles to
escape liability simply because the damage or loss of a
thing lawfully placed in its possession was due to
carnapping. Carnapping per se cannot be considered as
a fortuitous event. The fact that a thing was
unlawfully and forcefully taken from another's
rightful possession, as in cases of carnapping, does
not automatically give rise to a fortuitous event. To
be considered as such, carnapping entails more than
the mere forceful taking of another's property. It
must be proved and established that the event was
an act of God or was done solely by third parties and
that neither the claimant nor the person alleged to
be negligent has any participation. In accordance
with the Rules of Evidence, the burden of proving
that the loss was due to a fortuitous event rests on
him who invokes it which in this case is the
private respondent. However, other than the police
report of the alleged carnapping incident, no other
evidence was presented by private respondent to the
effect that the incident was not due to its fault. A police
report of an alleged crime, to which only private
respondent is privy, does not suffice to establish the
carnapping. Neither does it prove that there was no
fault on the part of private respondent notwithstanding
the parties' agreement at the pre-trial that the car was
carnapped. Carnapping does not foreclose the
possibility of fault or negligence on the part of private
respondent.
28

Just like in Co, petitioners merely presented the police report of
the Paraaque Police Station on the robbery committed based on
the report of petitioners' employees which is not sufficient to
establish robbery. Such report also does not prove that
petitioners were not at fault.
On the contrary, by the very evidence of petitioners, the CA did
not err in finding that petitioners are guilty of concurrent or
contributory negligence as provided in Article 1170 of the Civil
Code, to wit:
Art. 1170. Those who in the performance of their
obligations are guilty of fraud, negligence, or delay, and
those who in any manner contravene the tenor thereof,
are liable for damages.
29

Article 2123 of the Civil Code provides that with regard to
pawnshops and other establishments which are engaged in
making loans secured by pledges, the special laws and
regulations concerning them shall be observed, and subsidiarily,
the provisions on pledge, mortgage and antichresis.
The provision on pledge, particularly Article 2099 of the Civil
Code, provides that the creditor shall take care of the thing
pledged with the diligence of a good father of a family. This means
that petitioners must take care of the pawns the way a prudent
person would as to his own property.
In this connection, Article 1173 of the Civil Code further provides:

23
Karen Rizel B. Abella
Art. 1173. The fault or negligence of the obligor consists
in the omission of that diligence which is required by
the nature of the obligation and corresponds with the
circumstances of the persons, of time and of the place.
When negligence shows bad faith, the provisions of
Articles 1171 and 2201, paragraph 2 shall apply.
If the law or contract does not state the diligence which
is to be observed in the performance, that which is
expected of a good father of a family shall be required.
We expounded in Cruz v. Gangan
30
that 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.
31
It is want of care
required by the circumstances.
A review of the records clearly shows that petitioners failed to
exercise reasonable care and caution that an ordinarily prudent
person would have used in the same situation. Petitioners were
guilty of negligence in the operation of their pawnshop business.
Petitioner Sicam testified, thus:
Court:
Q. Do you have security guards in your pawnshop?
A. Yes, your honor.
Q. Then how come that the robbers were able to enter
the premises when according to you there was a
security guard?
A. Sir, if these robbers can rob a bank, how much more
a pawnshop.
Q. I am asking you how were the robbers able to enter
despite the fact that there was a security guard?
A. At the time of the incident which happened about
1:00 and 2:00 o'clock in the afternoon and it happened
on a Saturday and everything was quiet in the area BF
Homes Paraaque they pretended to pawn an article in
the pawnshop, so one of my employees allowed him to
come in and it was only when it was announced that it
was a hold up.
Q. Did you come to know how the vault was opened?
A. When the pawnshop is official (sic) open your honor
the pawnshop is partly open. The combination is off.
Q. No one open (sic) the vault for the robbers?
A. No one your honor it was open at the time of the
robbery.
Q. It is clear now that at the time of the robbery the
vault was open the reason why the robbers were able to
get all the items pawned to you inside the vault.
A. Yes sir.
32

revealing that there were no security measures adopted by
petitioners in the operation of the pawnshop. Evidently, no
sufficient precaution and vigilance were adopted by petitioners to
protect the pawnshop from unlawful intrusion. There was no
clear showing that there was any security guard at all. Or if there
was one, that he had sufficient training in securing a pawnshop.
Further, there is no showing that the alleged security guard
exercised all that was necessary to prevent any untoward incident
or to ensure that no suspicious individuals were allowed to enter
the premises. In fact, it is even doubtful that there was a security
guard, since it is quite impossible that he would not have noticed
that the robbers were armed with caliber .45 pistols each, which
were allegedly poked at the employees.
33
Significantly, the alleged
security guard was not presented at all to corroborate petitioner
Sicam's claim; not one of petitioners' employees who were present
during the robbery incident testified in court.
Furthermore, petitioner Sicam's admission that the vault was
open at the time of robbery is clearly a proof of petitioners' failure
to observe the care, precaution and vigilance that the
circumstances justly demanded. Petitioner Sicam testified that
once the pawnshop was open, the combination was already off.
Considering petitioner Sicam's testimony that the robbery took
place on a Saturday afternoon and the area in BF Homes
Paraaque at that time was quiet, there was more reason for
petitioners to have exercised reasonable foresight and diligence in
protecting the pawned jewelries. Instead of taking the precaution
to protect them, they let open the vault, providing no difficulty for
the robbers to cart away the pawned articles.
We, however, do not agree with the CA when it found petitioners
negligent for not taking steps to insure themselves against loss of
the pawned jewelries.
Under Section 17 of Central Bank Circular No. 374, Rules and
Regulations for Pawnshops, which took effect on July 13, 1973,
and which was issued pursuant to Presidential Decree No. 114,
Pawnshop Regulation Act, it is provided that pawns pledged must
be insured, to wit:
Sec. 17. Insurance of Office Building and Pawns- The
place of business of a pawnshop and the pawns pledged
to it must be insured against fire and against
burglary as well as for the latter(sic), by an insurance
company accredited by the Insurance Commissioner.
However, this Section was subsequently amended by CB Circular
No. 764 which took effect on October 1, 1980, to wit:
Sec. 17 Insurance of Office Building and Pawns The
office building/premises and pawns of a pawnshop
must be insured against fire. (emphasis supplied).
where the requirement that insurance against burglary was
deleted. Obviously, the Central Bank considered it not feasible to
require insurance of pawned articles against burglary.
The robbery in the pawnshop happened in 1987, and considering
the above-quoted amendment, there is no statutory duty imposed
on petitioners to insure the pawned jewelry in which case it was
error for the CA to consider it as a factor in concluding that
petitioners were negligent.
Nevertheless, the preponderance of evidence shows that
petitioners failed to exercise the diligence required of them under
the Civil Code.
The diligence with which the law requires the individual at all
times to govern his conduct varies with the nature of the
situation in which he is placed and the importance of the act
which he is to perform.
34
Thus, the cases ofAustria v. Court of
Appeals,
35
Hernandez v. Chairman, Commission on
Audit
36
and Cruz v. Gangan
37
cited by petitioners in their
pleadings, where the victims of robbery were exonerated from
liability, find no application to the present case.
In Austria, Maria Abad received from Guillermo Austria a pendant
with diamonds to be sold on commission basis, but which Abad
failed to subsequently return because of a robbery committed
upon her in 1961. The incident became the subject of a criminal
case filed against several persons. Austria filed an action against
Abad and her husband (Abads) for recovery of the pendant or its
value, but the Abads set up the defense that the robbery
extinguished their obligation. The RTC ruled in favor of Austria,
as the Abads failed to prove robbery; or, if committed, that Maria
Abad was guilty of negligence. The CA, however, reversed the RTC
decision holding that the fact of robbery was duly established and
declared the Abads not responsible for the loss of the jewelry on
account of a fortuitous event. We held that for the Abads to be
relieved from the civil liability of returning the pendant under Art.
1174 of the Civil Code, it would only be sufficient that the
unforeseen event, the robbery, took place without any concurrent
fault on the debtors part, and this can be done by preponderance
of evidence; that to be free from liability for reason of fortuitous
event, the debtor must, in addition to the casus itself, be free of
any concurrent or contributory fault or negligence.
38

We found in Austria that under the circumstances prevailing at
the time the Decision was promulgated in 1971, the City of
Manila and its suburbs had a high incidence of crimes against
persons and property that rendered travel after nightfall a matter
to be sedulously avoided without suitable precaution and
protection; that the conduct of Maria Abad in returning alone to
her house in the evening carrying jewelry of considerable value
would have been negligence per se and would not exempt her
from responsibility in the case of robbery. However we did not
hold Abad liable for negligence since, the robbery happened ten
years previously; i.e., 1961, when criminality had not reached the
level of incidence obtaining in 1971.

24
Karen Rizel B. Abella
In contrast, the robbery in this case took place in 1987 when
robbery was already prevalent and petitioners in fact had already
foreseen it as they wanted to deposit the pawn with a nearby
bank for safekeeping. Moreover, unlike in Austria, where no
negligence was committed, we found petitioners negligent in
securing their pawnshop as earlier discussed.
In Hernandez, Teodoro Hernandez was the OIC and special
disbursing officer of the Ternate Beach Project of the Philippine
Tourism in Cavite. In the morning of July 1, 1983, a Friday, he
went to Manila to encash two checks covering the wages of the
employees and the operating expenses of the project. However for
some reason, the processing of the check was delayed and was
completed at about 3 p.m. Nevertheless, he decided to encash the
check because the project employees would be waiting for their
pay the following day; otherwise, the workers would have to wait
until July 5, the earliest time, when the main office would open.
At that time, he had two choices: (1) return to Ternate, Cavite
that same afternoon and arrive early evening; or (2) take the
money with him to his house in Marilao, Bulacan, spend the
night there, and leave for Ternate the following day. He chose the
second option, thinking it was the safer one. Thus, a little past 3
p.m., he took a passenger jeep bound for Bulacan. While the jeep
was on Epifanio de los Santos Avenue, the jeep was held up and
the money kept by Hernandez was taken, and the robbers jumped
out of the jeep and ran. Hernandez chased the robbers and
caught up with one robber who was subsequently charged with
robbery and pleaded guilty. The other robber who held the stolen
money escaped. The Commission on Audit found Hernandez
negligent because he had not brought the cash proceeds of the
checks to his office in Ternate, Cavite for safekeeping, which is
the normal procedure in the handling of funds. We held that
Hernandez was not negligent in deciding to encash the check and
bringing it home to Marilao, Bulacan instead of Ternate, Cavite
due to the lateness of the hour for the following reasons: (1) he
was moved by unselfish motive for his co-employees to collect
their wages and salaries the following day, a Saturday, a non-
working, because to encash the check on July 5, the next working
day after July 1, would have caused discomfort to laborers who
were dependent on their wages for sustenance; and (2) that
choosing Marilao as a safer destination, being nearer, and in view
of the comparative hazards in the trips to the two places, said
decision seemed logical at that time. We further held that the fact
that two robbers attacked him in broad daylight in the jeep while
it was on a busy highway and in the presence of other passengers
could not be said to be a result of his imprudence and negligence.
Unlike in Hernandez where the robbery happened in a public
utility, the robbery in this case took place in the pawnshop which
is under the control of petitioners. Petitioners had the means to
screen the persons who were allowed entrance to the premises
and to protect itself from unlawful intrusion. Petitioners had
failed to exercise precautionary measures in ensuring that the
robbers were prevented from entering the pawnshop and for
keeping the vault open for the day, which paved the way for the
robbers to easily cart away the pawned articles.
In Cruz, Dr. Filonila O. Cruz, Camanava District Director of
Technological Education and Skills Development Authority
(TESDA), boarded the Light Rail Transit (LRT) from Sen. Puyat
Avenue to Monumento when her handbag was slashed and the
contents were stolen by an unidentified person. Among those
stolen were her wallet and the government-issued cellular phone.
She then reported the incident to the police authorities; however,
the thief was not located, and the cellphone was not recovered.
She also reported the loss to the Regional Director of TESDA, and
she requested that she be freed from accountability for the
cellphone. The Resident Auditor denied her request on the ground
that she lacked the diligence required in the custody of
government property and was ordered to pay the purchase value
in the total amount of P4,238.00. The COA found no sufficient
justification to grant the request for relief from accountability. We
reversed the ruling and found that riding the LRT cannot per se
be denounced as a negligent act more so because Cruzs mode of
transit was influenced by time and money considerations; that
she boarded the LRT to be able to arrive in Caloocan in time for
her 3 pm meeting; that any prudent and rational person under
similar circumstance can reasonably be expected to do the same;
that possession of a cellphone should not hinder one from
boarding the LRT coach as Cruz did considering that whether she
rode a jeep or bus, the risk of theft would have also been present;
that because of her relatively low position and pay, she was not
expected to have her own vehicle or to ride a taxicab; she did not
have a government assigned vehicle; that placing the cellphone in
a bag away from covetous eyes and holding on to that bag as she
did is ordinarily sufficient care of a cellphone while traveling on
board the LRT; that the records did not show any specific act of
negligence on her part and negligence can never be presumed.
Unlike in the Cruz case, the robbery in this case happened in
petitioners' pawnshop and they were negligent in not exercising
the precautions justly demanded of a pawnshop.
WHEREFORE, except for the insurance aspect, the Decision of
the Court of Appeals dated March 31, 2003 and its Resolution
dated August 8, 2003, are AFFIRMED.
Costs against petitioners.
SO ORDERED.
G.R. No. L-12986 March 31, 1966
THE SPOUSES BERNABE AFRICA and SOLEDAD C. AFRICA,
and the HEIRS OF DOMINGA ONG, petitioners-appellants,
vs.
CALTEX (PHIL.), INC., MATEO BOQUIREN and THE COURT OF
APPEALS, respondents-appellees.
This case is before us on a petition for review of the decision of
the Court of Appeals, which affirmed that of the Court of First
Instance of Manila dismissing petitioners' second amended
complaint against respondents.
The action is for damages under Articles 1902 and 1903 of the
old Civil Code. It appears that in the afternoon of March 18, 1948
a fire broke out at the Caltex service station at the corner of
Antipolo street and Rizal Avenue, Manila. It started while gasoline
was being hosed from a tank truck into the underground storage,
right at the opening of the receiving tank where the nozzle of the
hose was inserted. The fire spread to and burned several
neighboring houses, including the personal properties and effects
inside them. Their owners, among them petitioners here, sued
respondents Caltex (Phil.), Inc. and Mateo Boquiren, the first as
alleged owner of the station and the second as its agent in charge
of operation. Negligence on the part of both of them was
attributed as the cause of the fire.
The trial court and the Court of Appeals found that petitioners
failed to prove negligence and that respondents had exercised due
care in the premises and with respect to the supervision of their
employees.
The first question before Us refers to the admissibility of certain
reports on the fire prepared by the Manila Police and Fire
Departments and by a certain Captain Tinio of the Armed Forces
of the Philippines. Portions of the first two reports are as follows:
1. Police Department report:
Investigation disclosed that at about 4:00 P.M. March 18,
1948, while Leandro Flores was transferring gasoline
from a tank truck, plate No. T-5292 into the
underground tank of the Caltex Gasoline Station located
at the corner of Rizal Avenue and Antipolo Street, this
City, an unknown Filipino lighted a cigarette and threw
the burning match stick near the main valve of the said
underground tank. Due to the gasoline fumes, fire
suddenly blazed. Quick action of Leandro Flores in
pulling off the gasoline hose connecting the truck with
the underground tank prevented a terrific explosion.
However, the flames scattered due to the hose from
which the gasoline was spouting. It burned the truck and
the following accessorias and residences.
2. The Fire Department report:
In connection with their allegation that the premises
was (sic) subleased for the installation of a coca-cola
and cigarette stand, the complainants furnished this
Office a copy of a photograph taken during the fire and
which is submitted herewith. it appears in this picture
that there are in the premises a coca-cola cooler and a
rack which according to information gathered in the
neighborhood contained cigarettes and matches,
installed between the gasoline pumps and the
underground tanks.
The report of Captain Tinio reproduced information given by a
certain Benito Morales regarding the history of the gasoline
station and what the chief of the fire department had told him on
the same subject.
The foregoing reports were ruled out as "double hearsay" by the
Court of Appeals and hence inadmissible. This ruling is now
assigned as error. It is contended: first, that said reports were
admitted by the trial court without objection on the part of
respondents; secondly, that with respect to the police report
(Exhibit V-Africa) which appears signed by a Detective Zapanta
allegedly "for Salvador Capacillo," the latter was presented as

25
Karen Rizel B. Abella
witness but respondents waived their right to cross-examine him
although they had the opportunity to do so; and thirdly, that in
any event the said reports are admissible as an exception to the
hearsay rule under section 35 of Rule 123, now Rule 130.
The first contention is not borne out by the record. The transcript
of the hearing of September 17, 1953 (pp. 167-170) shows that
the reports in question, when offered as evidence, were objected
to by counsel for each of respondents on the ground that they
were hearsay and that they were "irrelevant, immaterial and
impertinent." Indeed, in the court's resolution only Exhibits J, K,
K-5 and X-6 were admitted without objection; the admission of the
others, including the disputed ones, carried no such explanation.
On the second point, although Detective Capacillo did take the
witness stand, he was not examined and he did not testify as to
the facts mentioned in his alleged report (signed by Detective
Zapanta). All he said was that he was one of those who
investigated "the location of the fire and, if possible, gather
witnesses as to the occurrence, and that he brought the report
with him. There was nothing, therefore, on which he need be
cross-examined; and the contents of the report, as to which he
did not testify, did not thereby become competent evidence. And
even if he had testified, his testimony would still have been
objectionable as far as information gathered by him from third
persons was concerned.
Petitioners maintain, however, that the reports in themselves,
that is, without further testimonial evidence on their contents, fall
within the scope of section 35, Rule 123, which provides that
"entries in official records made in the performance of his duty by
a public officer of the Philippines, or by a person in the
performance of a duty specially enjoined by law, are prima
facie evidence of the facts therein stated."
There are three requisites for admissibility under the rule just
mentioned: (a) that the entry was made by a public officer, or by
another person specially enjoined by law to do so; (b) that it was
made by the public officer in the performance of his duties, or by
such other person in the performance of a duty specially enjoined
by law; and (c) that the public officer or other person had
sufficient knowledge of the facts by him stated, which must have
been acquired by him personally or through official information
(Moran, Comments on the Rules of Court, Vol. 3 [1957] p. 398).
Of the three requisites just stated, only the last need be
considered here. Obviously the material facts recited in the
reports as to the cause and circumstances of the fire were not
within the personal knowledge of the officers who conducted the
investigation. Was knowledge of such facts, however, acquired by
them through official information? As to some facts the sources
thereof are not even identified. Others are attributed to Leopoldo
Medina, referred to as an employee at the gas station were the fire
occurred; to Leandro Flores, driver of the tank truck from which
gasoline was being transferred at the time to the underground
tank of the station; and to respondent Mateo Boquiren, who could
not, according to Exhibit V-Africa, give any reason as to the origin
of the fire. To qualify their statements as "official information"
acquired by the officers who prepared the reports, the persons
who made the statements not only must have personal knowledge
of the facts stated but must have the duty to give such
statements for record.
1

The reports in question do not constitute an exception to the
hearsay rule; the facts stated therein were not acquired by the
reporting officers through official information, not having been
given by the informants pursuant to any duty to do so.
The next question is whether or not, without proof as to the cause
and origin of the fire, the doctrine of res ipsa loquitur should apply
so as to presume negligence on the part of appellees. Both the
trial court and the appellate court refused to apply the doctrine in
the instant case on the grounds that "as to (its) applicability ... in
the Philippines, there seems to he nothing definite," and that
while the rules do not prohibit its adoption in appropriate cases,
"in the case at bar, however, we find no practical use for such
doctrine." The question deserves more than such summary
dismissal. The doctrine has actually been applied in this
jurisdiction, in the case of Espiritu vs. Philippine Power and
Development Co. (CA-G.R. No. 3240-R, September 20, 1949),
wherein the decision of the Court of Appeals was penned by Mr.
Justice J.B.L. Reyes now a member of the Supreme Court.
The facts of that case are stated in the decision as follows:
In the afternoon of May 5, 1946, while the plaintiff-
appellee and other companions were loading grass
between the municipalities of Bay and Calauan, in the
province of Laguna, with clear weather and without any
wind blowing, an electric transmission wire, installed
and maintained by the defendant Philippine Power and
Development Co., Inc. alongside the road, suddenly
parted, and one of the broken ends hit the head of the
plaintiff as he was about to board the truck. As a result,
plaintiff received the full shock of 4,400 volts carried by
the wire and was knocked unconscious to the ground.
The electric charge coursed through his body and
caused extensive and serious multiple burns from skull
to legs, leaving the bone exposed in some parts and
causing intense pain and wounds that were not
completely healed when the case was tried on June 18,
1947, over one year after the mishap.
The defendant therein disclaimed liability on the ground that the
plaintiff had failed to show any specific act of negligence, but the
appellate court overruled the defense under the doctrine of res
ipsa loquitur. The court said:
The first point is directed against the sufficiency of
plaintiff's evidence to place appellant on its defense.
While it is the rule, as contended by the appellant, that
in case of noncontractual negligence, or culpa aquiliana,
the burden of proof is on the plaintiff to establish that
the proximate cause of his injury was the negligence of
the defendant, it is also a recognized principal that
"where the thing which caused injury, without fault of
the injured person, is under the exclusive control of the
defendant and the injury is such as in the ordinary
course of things does not occur if he having such
control use proper care, it affords reasonable evidence,
in the absence of the explanation, that the injury arose
from defendant's want of care."
And the burden of evidence is shifted to him to
establish that he has observed due care and diligence.
(San Juan Light & Transit Co. v. Requena, 244, U.S. 89,
56 L. ed. 680.) This rule is known by the name of res
ipsa loquitur (the transaction speaks for itself), and is
peculiarly applicable to the case at bar, where it is
unquestioned that the plaintiff had every right to be on
the highway, and the electric wire was under the sole
control of defendant company. In the ordinary course of
events, electric wires do not part suddenly in fair
weather and injure people, unless they are subjected to
unusual strain and stress or there are defects in their
installation, maintenance and supervision; just as
barrels do not ordinarily roll out of the warehouse
windows to injure passersby, unless some one was
negligent. (Byrne v. Boadle, 2 H & Co. 722; 159 Eng.
Reprint 299, the leading case that established that
rule). Consequently, in the absence of contributory
negligence (which is admittedly not present), the fact
that the wire snapped suffices to raise a reasonable
presumption of negligence in its installation, care and
maintenance. Thereafter, as observed by Chief Baron
Pollock, "if there are any facts inconsistent with
negligence, it is for the defendant to prove."
It is true of course that decisions of the Court of Appeals do not
lay down doctrines binding on the Supreme Court, but we do not
consider this a reason for not applying the particular doctrine
of res ipsa loquitur in the case at bar. Gasoline is a highly
combustible material, in the storage and sale of which extreme
care must be taken. On the other hand, fire is not considered a
fortuitous event, as it arises almost invariably from some act of
man. A case strikingly similar to the one before Us is Jones vs.
Shell Petroleum Corporation, et al., 171 So. 447:
Arthur O. Jones is the owner of a building in the city of
Hammon which in the year 1934 was leased to the Shell
Petroleum Corporation for a gasoline filling station. On
October 8, 1934, during the term of the lease, while
gasoline was being transferred from the tank wagon,
also operated by the Shell Petroleum Corporation, to the
underground tank of the station, a fire started with
resulting damages to the building owned by Jones.
Alleging that the damages to his building amounted to
$516.95, Jones sued the Shell Petroleum Corporation
for the recovery of that amount. The judge of the district
court, after hearing the testimony, concluded that
plaintiff was entitled to a recovery and rendered
judgment in his favor for $427.82. The Court of Appeals
for the First Circuit reversed this judgment, on the
ground the testimony failed to show with reasonable
certainty any negligence on the part of the Shell
Petroleum Corporation or any of its agents or
employees. Plaintiff applied to this Court for a Writ of
Review which was granted, and the case is now before
us for decision.1wph1.t

26
Karen Rizel B. Abella
In resolving the issue of negligence, the Supreme Court of
Louisiana held:
Plaintiff's petition contains two distinct charges of
negligence one relating to the cause of the fire and
the other relating to the spreading of the gasoline about
the filling station.
Other than an expert to assess the damages caused
plaintiff's building by the fire, no witnesses were placed
on the stand by the defendant.
Taking up plaintiff's charge of negligence relating to the
cause of the fire, we find it established by the record
that the filling station and the tank truck were under
the control of the defendant and operated by its agents
or employees. We further find from the uncontradicted
testimony of plaintiff's witnesses that fire started in the
underground tank attached to the filling station while it
was being filled from the tank truck and while both the
tank and the truck were in charge of and being
operated by the agents or employees of the defendant,
extended to the hose and tank truck, and was
communicated from the burning hose, tank truck, and
escaping gasoline to the building owned by the plaintiff.
Predicated on these circumstances and the further
circumstance of defendant's failure to explain the cause
of the fire or to show its lack of knowledge of the cause,
plaintiff has evoked the doctrine of res ipsa loquitur.
There are many cases in which the doctrine may be
successfully invoked and this, we think, is one of them.
Where the thing which caused the injury complained of
is shown to be under the management of defendant or
his servants and the accident is such as in the ordinary
course of things does not happen if those who have its
management or control use proper care, it affords
reasonable evidence, in absence of explanation by
defendant, that the accident arose from want of care.
(45 C.J. #768, p. 1193).
This statement of the rule of res ipsa loquitur has been
widely approved and adopted by the courts of last
resort. Some of the cases in this jurisdiction in which
the doctrine has been applied are the following, viz.:
Maus v. Broderick, 51 La. Ann. 1153, 25 So. 977;
Hebert v. Lake Charles Ice, etc., Co., 111 La. 522, 35
So. 731, 64 L.R.A. 101, 100 Am. St. Rep. 505; Willis v.
Vicksburg, etc., R. Co., 115 La. 63, 38 So. 892; Bents v.
Page, 115 La. 560, 39 So. 599.
The principle enunciated in the aforequoted case applies with
equal force here. The gasoline station, with all its appliances,
equipment and employees, was under the control of appellees. A
fire occurred therein and spread to and burned the neighboring
houses. The persons who knew or could have known how the fire
started were appellees and their employees, but they gave no
explanation thereof whatsoever. It is a fair and reasonable
inference that the incident happened because of want of care.
In the report submitted by Captain Leoncio Mariano of the Manila
Police Department (Exh. X-1 Africa) the following appears:
Investigation of the basic complaint disclosed that the
Caltex Gasoline Station complained of occupies a lot
approximately 10 m x 10 m at the southwest corner of
Rizal Avenue and Antipolo. The location is within a very
busy business district near the Obrero Market, a
railroad crossing and very thickly populated
neighborhood where a great number of people mill
around t
until
gasoline
tever be theWactjvities of these peopleor lighting a
cigarette cannot be excluded and this constitute a
secondary hazard to its operation which in turn
endangers the entire neighborhood to conflagration.
Furthermore, aside from precautions already taken by
its operator the concrete walls south and west adjoining
the neighborhood are only 2-1/2 meters high at most
and cannot avoid the flames from leaping over it in case
of fire.
Records show that there have been two cases of fire
which caused not only material damages but
desperation and also panic in the neighborhood.
Although the soft drinks stand had been eliminated,
this gasoline service station is also used by its operator
as a garage and repair shop for his fleet of taxicabs
numbering ten or more, adding another risk to the
possible outbreak of fire at this already small but
crowded gasoline station.
The foregoing report, having been submitted by a police officer in
the performance of his duties on the basis of his own personal
observation of the facts reported, may properly be considered as
an exception to the hearsay rule. These facts, descriptive of the
location and objective circumstances surrounding the operation
of the gasoline station in question, strengthen the presumption of
negligence under the doctrine of res ipsa loquitur, since on their
face they called for more stringent measures of caution than
those which would satisfy the standard of due diligence under
ordinary circumstances. There is no more eloquent demonstration
of this than the statement of Leandro Flores before the police
investigator. Flores was the driver of the gasoline tank wagon
who, alone and without assistance, was transferring the contents
thereof into the underground storage when the fire broke out. He
said: "Before loading the underground tank there were no people,
but while the loading was going on, there were people who went
to drink coca-cola (at the coca-cola stand) which is about a meter
from the hole leading to the underground tank." He added that
when the tank was almost filled he went to the tank truck to close
the valve, and while he had his back turned to the "manhole" he,
heard someone shout "fire."
Even then the fire possibly would not have spread to the
neighboring houses were it not for another negligent omission on
the part of defendants, namely, their failure to provide a concrete
wall high enough to prevent the flames from leaping over it. As it
was the concrete wall was only 2-1/2 meters high, and beyond
that height it consisted merely of galvanized iron sheets, which
would predictably crumple and melt when subjected to intense
heat. Defendants' negligence, therefore, was not only with respect
to the cause of the fire but also with respect to the spread thereof
to the neighboring houses.
There is an admission on the part of Boquiren in his amended
answer to the second amended complaint that "the fire was
caused through the acts of a stranger who, without authority, or
permission of answering defendant, passed through the gasoline
station and negligently threw a lighted match in the premises." No
evidence on this point was adduced, but assuming the allegation
to be true certainly any unfavorable inference from the
admission may be taken against Boquiren it does not
extenuate his negligence. A decision of the Supreme Court of
Texas, upon facts analogous to those of the present case, states
the rule which we find acceptable here. "It is the rule that those
who distribute a dangerous article or agent, owe a degree of
protection to the public proportionate to and commensurate with
a danger involved ... we think it is the generally accepted rule as
applied to torts that 'if the effects of the actor's negligent conduct
actively and continuously operate to bring about harm to another,
the fact that the active and substantially simultaneous operation
of the effects of a third person's innocent, tortious or criminal act
is also a substantial factor in bringing about the harm, does not
protect the actor from liability.' (Restatement of the Law of Torts,
vol. 2, p. 1184, #439). Stated in another way, "The intention of an
unforeseen and unexpected cause, is not sufficient to relieve a
wrongdoer from consequences of negligence, if such negligence
directly and proximately cooperates with the independent cause
in the resulting injury." (MacAfee, et al. vs. Traver's Gas
Corporation, 153 S.W. 2nd 442.)
The next issue is whether Caltex should be held liable for the
damages caused to appellants. This issue depends on whether
Boquiren was an independent contractor, as held by the Court of
Appeals, or an agent of Caltex. This question, in the light of the
facts not controverted, is one of law and hence may be passed
upon by this Court. These facts are: (1) Boquiren made an
admission that he was an agent of Caltex; (2) at the time of the
fire Caltex owned the gasoline station and all the equipment
therein; (3) Caltex exercised control over Boquiren in the
management of the state; (4) the delivery truck used in delivering
gasoline to the station had the name of CALTEX painted on it;
and (5) the license to store gasoline at the station was in the
name of Caltex, which paid the license fees. (Exhibit T-Africa;
Exhibit U-Africa; Exhibit X-5 Africa; Exhibit X-6 Africa; Exhibit Y-
Africa).
In Boquiren's amended answer to the second amended complaint,
he denied that he directed one of his drivers to remove gasoline
from the truck into the tank and alleged that the "alleged driver, if
one there was, was not in his employ, the driver being an
employee of the Caltex (Phil.) Inc. and/or the owners of the
gasoline station." It is true that Boquiren later on amended his
answer, and that among the changes was one to the effect that he
was not acting as agent of Caltex. But then again, in his motion

27
Karen Rizel B. Abella
to dismiss appellants' second amended complaint the ground
alleged was that it stated no cause of action since under the
allegations thereof he was merely acting as agent of Caltex, such
that he could not have incurred personal liability. A motion to
dismiss on this ground is deemed to be an admission of the facts
alleged in the complaint.
Caltex admits that it owned the gasoline station as well as the
equipment therein, but claims that the business conducted at the
service station in question was owned and operated by Boquiren.
But Caltex did not present any contract with Boquiren that would
reveal the nature of their relationship at the time of the fire. There
must have been one in existence at that time. Instead, what was
presented was a license agreement manifestly tailored for
purposes of this case, since it was entered into shortly before the
expiration of the one-year period it was intended to operate. This
so-called license agreement (Exhibit 5-Caltex) was executed on
November 29, 1948, but made effective as of January 1, 1948 so
as to cover the date of the fire, namely, March 18, 1948. This
retroactivity provision is quite significant, and gives rise to the
conclusion that it was designed precisely to free Caltex from any
responsibility with respect to the fire, as shown by the clause that
Caltex "shall not be liable for any injury to person or property
while in the property herein licensed, it being understood and
agreed that LICENSEE (Boquiren) is not an employee,
representative or agent of LICENSOR (Caltex)."
But even if the license agreement were to govern, Boquiren can
hardly be considered an independent contractor. Under that
agreement Boquiren would pay Caltex the purely nominal sum of
P1.00 for the use of the premises and all the equipment therein.
He could sell only Caltex Products. Maintenance of the station
and its equipment was subject to the approval, in other words
control, of Caltex. Boquiren could not assign or transfer his rights
as licensee without the consent of Caltex. The license agreement
was supposed to be from January 1, 1948 to December 31, 1948,
and thereafter until terminated by Caltex upon two days prior
written notice. Caltex could at any time cancel and terminate the
agreement in case Boquiren ceased to sell Caltex products, or did
not conduct the business with due diligence, in the judgment of
Caltex. Termination of the contract was therefore a right granted
only to Caltex but not to Boquiren. These provisions of the
contract show the extent of the control of Caltex over Boquiren.
The control was such that the latter was virtually an employee of
the former.
Taking into consideration the fact that the operator
owed his position to the company and the latter could
remove him or terminate his services at will; that the
service station belonged to the company and bore its
tradename and the operator sold only the products of
the company; that the equipment used by the operator
belonged to the company and were just loaned to the
operator and the company took charge of their repair
and maintenance; that an employee of the company
supervised the operator and conducted periodic
inspection of the company's gasoline and service
station; that the price of the products sold by the
operator was fixed by the company and not by the
operator; and that the receipts signed by the operator
indicated that he was a mere agent, the finding of the
Court of Appeals that the operator was an agent of the
company and not an independent contractor should not
be disturbed.
To determine the nature of a contract courts do not
have or are not bound to rely upon the name or title
given it by the contracting parties, should thereby a
controversy as to what they really had intended to enter
into, but the way the contracting parties do or perform
their respective obligations stipulated or agreed upon
may be shown and inquired into, and should such
performance conflict with the name or title given the
contract by the parties, the former must prevail over the
latter. (Shell Company of the Philippines, Ltd. vs.
Firemens' Insurance Company of Newark, New Jersey,
100 Phil. 757).
The written contract was apparently drawn for the
purpose of creating the apparent relationship of
employer and independent contractor, and of avoiding
liability for the negligence of the employees about the
station; but the company was not satisfied to allow
such relationship to exist. The evidence shows that it
immediately assumed control, and proceeded to direct
the method by which the work contracted for should be
performed. By reserving the right to terminate the
contract at will, it retained the means of compelling
submission to its orders. Having elected to assume
control and to direct the means and methods by which
the work has to be performed, it must be held liable for
the negligence of those performing service under its
direction. We think the evidence was sufficient to
sustain the verdict of the jury. (Gulf Refining Company
v. Rogers, 57 S.W. 2d, 183).
Caltex further argues that the gasoline stored in the station
belonged to Boquiren. But no cash invoices were presented to
show that Boquiren had bought said gasoline from Caltex.
Neither was there a sales contract to prove the same.
As found by the trial court the Africas sustained a loss of
P9,005.80, after deducting the amount of P2,000.00 collected by
them on the insurance of the house. The deduction is now
challenged as erroneous on the ground that Article 2207 of the
New Civil Code, which provides for the subrogation of the insurer
to the rights of the insured, was not yet in effect when the loss
took place. However, regardless of the silence of the law on this
point at that time, the amount that should be recovered be
measured by the damages actually suffered, otherwise the
principle prohibiting unjust enrichment would be violated. With
respect to the claim of the heirs of Ong P7,500.00 was adjudged
by the lower court on the basis of the assessed value of the
property destroyed, namely, P1,500.00, disregarding the
testimony of one of the Ong children that said property was worth
P4,000.00. We agree that the court erred, since it is of common
knowledge that the assessment for taxation purposes is not an
accurate gauge of fair market value, and in this case should not
prevail over positive evidence of such value. The heirs of Ong are
therefore entitled to P10,000.00.
Wherefore, the decision appealed from is reversed and
respondents-appellees are held liable solidarily to appellants, and
ordered to pay them the aforesaid sum of P9,005.80 and
P10,000.00, respectively, with interest from the filing of the
complaint, and costs.
G.R. No. L-21749 September 29, 1967
REPUBLIC OF THE PHILIPPINES, plaintiff-appellee,
vs.
LUZON STEVEDORING CORPORATION, defendant-appellant.
REYES, J.B.L., J.:
The present case comes by direct appeal from a decision of
the Court of First Instance of Manila (Case No. 44572) adjudging
the defendant-appellant, Luzon Stevedoring Corporation, liable in
damages to the plaintiff-appellee Republic of the Philippines.
In the early afternoon of August 17, 1960, barge L-1892,
owned by the Luzon Stevedoring Corporation was being towed
down the Pasig river by tugboats "Bangus" and "Barbero"
1
also
belonging to the same corporation, when the barge rammed
against one of the wooden piles of the Nagtahan bailey bridge,
smashing the posts and causing the bridge to list. The river, at
the time, was swollen and the current swift, on account of the
heavy downpour of Manila and the surrounding provinces on
August 15 and 16, 1960.
Sued by the Republic of the Philippines for actual and
consequential damage caused by its employees, amounting to
P200,000 (Civil Case No. 44562, CFI of Manila), defendant Luzon
Stevedoring Corporation disclaimed liability therefor, on the
grounds that it had exercised due diligence in the selection and
supervision of its employees; that the damages to the bridge were
caused by force majeure; that plaintiff has no capacity to sue; and
that the Nagtahan bailey bridge is an obstruction to navigation.
After due trial, the court rendered judgment on June 11,
1963, holding the defendant liable for the damage caused by its
employees and ordering it to pay to plaintiff the actual cost of the
repair of the Nagtahan bailey bridge which amounted to
P192,561.72, with legal interest thereon from the date of the filing
of the complaint.
Defendant appealed directly to this Court assigning the
following errors allegedly committed by the court a quo, to wit:
I The lower court erred in not holding that the herein
defendant-appellant had exercised the diligence
required of it in the selection and supervision of its
personnel to prevent damage or injury to
others.1awphl.nt
II The lower court erred in not holding that the
ramming of the Nagtahan bailey bridge by barge L-1892
was caused by force majeure.

28
Karen Rizel B. Abella
III The lower court erred in not holding that the
Nagtahan bailey bridge is an obstruction, if not a
menace, to navigation in the Pasig river.
IV The lower court erred in not blaming the damage
sustained by the Nagtahan bailey bridge to the
improper placement of the dolphins.
V The lower court erred in granting plaintiff's motion
to adduce further evidence in chief after it has rested its
case.
VI The lower court erred in finding the plaintiff
entitled to the amount of P192,561.72 for damages
which is clearly exorbitant and without any factual
basis.
However, it must be recalled that the established rule in
this jurisdiction is that when a party appeals directly to the
Supreme Court, and submits his case there for decision, he is
deemed to have waived the right to dispute any finding of fact
made by the trial Court. The only questions that may be raised
are those of law (Savellano vs. Diaz, L-17441, July 31, 1963;
Aballe vs. Santiago, L-16307, April 30, 1963; G.S.I.S. vs. Cloribel,
L-22236, June 22, 1965). A converso, a party who resorts to the
Court of Appeals, and submits his case for decision there, is
barred from contending later that his claim was beyond the
jurisdiction of the aforesaid Court. The reason is that a contrary
rule would encourage the undesirable practice of appellants'
submitting their cases for decision to either court in expectation
of favorable judgment, but with intent of attacking its jurisdiction
should the decision be unfavorable (Tyson Tan, et al. vs. Filipinas
Compaia de Seguros) et al., L-10096, Res. on Motion to
Reconsider, March 23, 1966). Consequently, we are limited in this
appeal to the issues of law raised in the appellant's brief.
Taking the aforesaid rules into account, it can be seen that
the only reviewable issues in this appeal are reduced to two:
1) Whether or not the collision of appellant's barge with
the supports or piers of the Nagtahan bridge was in law
caused by fortuitous event or force majeure, and
2) Whether or not it was error for the Court to have
permitted the plaintiff-appellee to introduce additional
evidence of damages after said party had rested its case.
As to the first question, considering that the Nagtahan
bridge was an immovable and stationary object and
uncontrovertedly provided with adequate openings for the
passage of water craft, including barges like of appellant's, it is
undeniable that the unusual event that the barge, exclusively
controlled by appellant, rammed the bridge supports raises a
presumption of negligence on the part of appellant or its
employees manning the barge or the tugs that towed it. For in the
ordinary course of events, such a thing does not happen if proper
care is used. In Anglo American Jurisprudence, the inference
arises by what is known as the "res ipsa loquitur" rule (Scott vs.
London Docks Co., 2 H & C 596; San Juan Light & Transit Co.
vs. Requena, 224 U.S. 89, 56 L. Ed., 680; Whitwell vs. Wolf, 127
Minn. 529, 149 N.W. 299; Bryne vs. Great Atlantic & Pacific Tea
Co., 269 Mass. 130; 168 N.E. 540; Gribsby vs. Smith, 146 S.W.
2d 719).
The appellant strongly stresses the precautions taken by it
on the day in question: that it assigned two of its most powerful
tugboats to tow down river its barge L-1892; that it assigned to
the task the more competent and experienced among its patrons,
had the towlines, engines and equipment double-checked and
inspected; that it instructed its patrons to take extra precautions;
and concludes that it had done all it was called to do, and that
the accident, therefore, should be held due to force majeure or
fortuitous event.
These very precautions, however, completely destroy the
appellant's defense. For caso fortuito or force majeure (which in
law are identical in so far as they exempt an obligor from
liability)
2
by definition, are extraordinary events not foreseeable or
avoidable, "events that could not be foreseen, or which, though
foreseen, were inevitable" (Art. 1174, Civ. Code of the Philippines).
It is, therefore, not enough that the event should not have been
foreseen or anticipated, as is commonly believed, but it must be
one impossible to foresee or to avoid. The mere difficulty to
foresee the happening is not impossibility to foresee the same:
"un hecho no constituye caso fortuito por la sola circunstancia de
que su existencia haga mas dificil o mas onerosa la accion
diligente del presento ofensor" (Peirano Facio, Responsibilidad
Extra-contractual, p. 465; Mazeaud Trait de la Responsibilite Civil,
Vol. 2, sec. 1569). The very measures adopted by appellant prove
that the possibility of danger was not only foreseeable, but
actually foreseen, and was not caso fortuito.
Otherwise stated, the appellant, Luzon Stevedoring
Corporation, knowing and appreciating the perils posed by the
swollen stream and its swift current, voluntarily entered into a
situation involving obvious danger; it therefore assured the risk,
and can not shed responsibility merely because the precautions it
adopted turned out to be insufficient. Hence, the lower Court
committed no error in holding it negligent in not suspending
operations and in holding it liable for the damages caused.
It avails the appellant naught to argue that the dolphins,
like the bridge, were improperly located. Even if true, these
circumstances would merely emphasize the need of even higher
degree of care on appellant's part in the situation involved in the
present case. The appellant, whose barges and tugs travel up and
down the river everyday, could not safely ignore the danger posed
by these allegedly improper constructions that had been erected,
and in place, for years.
On the second point: appellant charges the lower court
with having abused its discretion in the admission of plaintiff's
additional evidence after the latter had rested its case. There is an
insinuation that the delay was deliberate to enable the
manipulation of evidence to prejudice defendant-appellant.
We find no merit in the contention. Whether or not further
evidence will be allowed after a party offering the evidence has
rested his case, lies within the sound discretion of the trial Judge,
and this discretion will not be reviewed except in clear case of
abuse.
3

In the present case, no abuse of that discretion is shown.
What was allowed to be introduced, after plaintiff had rested its
evidence in chief, were vouchers and papers to support an item of
P1,558.00 allegedly spent for the reinforcement of the panel of the
bailey bridge, and which item already appeared in Exhibit GG.
Appellant, in fact, has no reason to charge the trial court of being
unfair, because it was also able to secure, upon written motion, a
similar order dated November 24, 1962, allowing reception of
additional evidence for the said defendant-appellant.
4

WHEREFORE, finding no error in the decision of the lower
Court appealed from, the same is hereby affirmed. Costs against
the defendant-appellant