YHT REALTY CORP.
VS CA, 2005 · He immediately confronted Lainez and Payam who admitted
FACTS
· Maurice Peaches McLoughlin is an Australian businessman-
philanthropist who used to stay at the Sheraton Hotel during his
trips to the Philippines prior to 1984. He met Brunhilda Mata-Tan
who befriended him and showed him around. Tan convinced
Mcloughlin to transfer to the Tropicana from the Sheraton where
afterwards he stayed during his trips from Dec 1984 to Sept 1987.
· On 30 Oct 1987, McLoughlin arrived from Australia and
registered with Tropicana. He rented a safety deposit box as his
usual practice. The box required two keys, the guest had one and
one from the management. He placed US $10,000 in one envelope
and US$5,000 in another , AU$10,000 in another envelope and other
envelopes with his passport and credit cards. On 12 Dec 1987, he
took from the box the envelope with US$5,000 and the one with
AU$10,000 to go to Hong Kong for a short visit, because he was not
checking out. When he arrived in HK, the envelope with US$5,000
only contained US$3,000, but because he had no idea if the safety
deposit box has been tampered, he thought it was just bad
accounting.
· After returning to Manila, he checked out of the Tropicana on
18 Dec 1987 and left for Australia. When he arrived he discovered
that the envelope with US$10,000 was short of US$5,000. He also
noticed that the jewelry he bought in Hong Kong which he stored in
the safety deposit box upon his return to Tropicana was likewise
missing, except for a diamond bracelet.
· He went back to the PH on 4 Apr 1988 and asked Lainez (who
had custody of the management key) if some money was missing or
returned to her, to which the latter answered there was not. He
again registered at the Tropicana and rented a safety deposit box. He
placed an envelope containing US$15,000, another of AU$10,000.
On 16 Apr, he opened his safety deposit box and noticed that
US$2,000 and AU$4,500 was missing from the envelopes.
that Tan opened the safety deposit box with the key assigned to
McLoughlin. McLoughlin went up to his room where Tan was staying
and confronted her. Tan admitted that she had stolen McLoughlin’s
key and was able to open the safety deposit box with the assistance
of Lopez, Payam and Lainez. Lopez also told McLoughlin that Tan
stole the key assigned to McLoughlin while the latter was asleep.
· McLoughlin requested the management for an investigation of
the incident. Lopez got in touch with Tan and arranged for a
meeting with the police and McLoughlin. When the police did not
arrive, Lopez and Tan went to the room of McLoughlin at Tropicana
and thereat, Lopez wrote on a piece of paper a promissory note.
· He made Lopez and Tan sign a promissory note for him for the
loss. However, Lopez refused liability on behalf of the hotel,
reasoning that McLoughlin signed an "Undertaking for the Use of
Safety Deposit Box" which disclaims any liability of the hotel for
things put inside the box.
· On 17 May 1988 McLoughlin went back to AU and consulted
his lawyers. They wrote a letter addressed to Pres. Cory Aquino
which was pushed back to the DOJ and the Western Police District.
He went back from the PH to AU several times more to attend
business and follow up but the matter was only filed on 3 Dec 1990
since he was not there to personally follow up.
· McLoughlin filed an action against YHT Realty Corporation,
Lopez, Lainez, Payam and Tan.
· The RTC rendered judgment in favor of McLoughlin. The CA
modified only the amount of damages awarded.
· Tan and Lopez, however, were not served with summons, and
trial proceeded with only Lainez, Payam and YHT Realty Corporation
as defendants.
(a) whether the loss of money and jewelry is supported by the
evidence. YES.
Where the credibility of a witness is an issue, the established rule is
that great respect is accorded to the evaluation of the credibility of
witnesses by the trial court. The trial court is in the best position to
assess the credibility of witnesses and their testimonies because of
its unique opportunity to observe the witnesses firsthand and note
their demeanor, conduct and attitude under grilling examination.
(b) whether there was gross negligence on the part of the
innkeepers
Payam and Lainez, who were employees of Tropicana, had custody
of the master key of the management when the loss took place.
They even admitted that they assisted Tan on three separate
occasions in opening McLoughlin’s safety deposit box.
The management contends that McLoughlin made its employees
believe that Tan was his spouse for she was always with him most of
the time. The evidence on record is bereft of any showing that
McLoughlin introduced Tan to the management as his wife. Mere
close companionship and intimacy are not enough to warrant such
conclusion. They should have confronted him as to his relationship
with Tan considering that the latter had been observed opening
McLoughlin’s safety deposit box a number of times at the early hours
of the morning.
Art 2180, par (4) of the same Code provides that the owners and
managers of an establishment or enterprise are likewise responsible
for damages caused by their employees in the service of the
branches in which the latter are employed or on the occasion of
their functions. Given the fact that the loss of McLoughlin’s money
was consummated through the negligence of Tropicana’s employees
both the employees and YHT, as owner of Tropicana, should be held
solidarily liable pursuant to Art 2193.
WON the "Undertaking for the Use of the Safety Deposit Box" is null
and void.
Yes, it is null and void. Art. 2003[1] is controlling. This is an
expression of public policy that the hotel business like common
carriers are imbued with public interest. This responsibility cannot be
waived away by any contrary stipulation in so-called "undertakings"
that ordinarily appear in prepared forms imposed by hotel keepers
on guests for their signature.
The CA (former case) even ruled before that hotelkeepers are liable
even though the effects are not delivered to them or their
employees, but it is enough that the effects are within the hotel or
inn.
Pars. 2 and 4 of the undertaking manifestly contravene Art. 2003 of
the NCC. Meanwhile, the defense that Art. 2002 exempts the hotel-
keeper from liability if the loss is due to the acts of the guest, family
or visitors falls because the hotel is guilty of negligence as well. This
provision presupposes that the hotel-keeper is not guilty of
concurrent negligence or has not contributed in any degree to the
occurrence of the loss.
dispositive
· Damages awarded by the lower court sustained
· US$2,000.00 and AUS$4,500.00 or their peso equivalent at the
time of payment;
· Air fares for a total of 11 trips + transpo expense
· Hotel payments
· Moral 50K
· ED 10K
· AF 200K
[1] Art. 2003. The hotel-keeper cannot free himself from
responsibility by posting notices to the effect that he is not liable for
the Arts brought by the guest. Any stipulation between the hotel-
keeper and the guest whereby the responsibility of the former as set
forth in Arts 1998 to 2001[37] is suppressed or diminished shall be
void.
G.R. No. L-21438 September 28, 1966
AIR FRANCE, petitioner,
vs.
RAFAEL CARRASCOSO and the HONORABLE COURT OF APPEALS,
respondents.
Lichauco, Picazo and Agcaoili for petitioner.
Bengzon Villegas and Zarraga for respondent R. Carrascoso.
SANCHEZ, J.:
The Court of First Instance of Manila 1 sentenced petitioner to pay
respondent Rafael Carrascoso P25,000.00 by way of moral damages;
P10,000.00 as exemplary damages; P393.20 representing the
difference in fare between first class and tourist class for the portion
of the trip Bangkok-Rome, these various amounts with interest at
the legal rate, from the date of the filing of the complaint until paid;
plus P3,000.00 for attorneys' fees; and the costs of suit.
On appeal,2 the Court of Appeals slightly reduced the amount of
refund on Carrascoso's plane ticket from P393.20 to P383.10, and
voted to affirm the appealed decision "in all other respects", with
costs against petitioner.
The case is now before us for review on certiorari.
The facts declared by the Court of Appeals as " fully supported by the
evidence of record", are:
Plaintiff, a civil engineer, was a member of a group of 48 Filipino
pilgrims that left Manila for Lourdes on March 30, 1958.
On March 28, 1958, the defendant, Air France, through its
authorized agent, Philippine Air Lines, Inc., issued to plaintiff a "first
class" round trip airplane ticket from Manila to Rome. From Manila
to Bangkok, plaintiff travelled in "first class", but at Bangkok, the
Manager of the defendant airline forced plaintiff to vacate the "first
class" seat that he was occupying because, in the words of the
witness Ernesto G. Cuento, there was a "white man", who, the
Manager alleged, had a "better right" to the seat. When asked to
vacate his "first class" seat, the plaintiff, as was to be expected,
refused, and told defendant's Manager that his seat would be taken
over his dead body; a commotion ensued, and, according to said
Ernesto G. Cuento, "many of the Filipino passengers got nervous in
the tourist class; when they found out that Mr. Carrascoso was
having a hot discussion with the white man [manager], they came all
across to Mr. Carrascoso and pacified Mr. Carrascoso to give his seat
to the white man" (Transcript, p. 12, Hearing of May 26, 1959); and
plaintiff reluctantly gave his "first class" seat in the plane.3
1. The trust of the relief petitioner now seeks is that we review "all
the findings" 4 of respondent Court of Appeals. Petitioner charges
that respondent court failed to make complete findings of fact on all
the issues properly laid before it. We are asked to consider facts
favorable to petitioner, and then, to overturn the appellate court's
decision.
Coming into focus is the constitutional mandate that "No decision
shall be rendered by any court of record without expressing therein
clearly and distinctly the facts and the law on which it is based". 5
This is echoed in the statutory demand that a judgment determining
the merits of the case shall state "clearly and distinctly the facts and
the law on which it is based"; 6 and that "Every decision of the Court
of Appeals shall contain complete findings of fact on all issues
properly raised before it". 7

A decision with absolutely nothing to support it is a nullity. It is open
to direct attack. 8 The law, however, solely insists that a decision
state the "essential ultimate facts" upon which the court's
conclusion is drawn. 9 A court of justice is not hidebound to write in
its decision every bit and piece of evidence 10 presented by one
party and the other upon the issues raised. Neither is it to be
burdened with the obligation "to specify in the sentence the facts"
which a party "considered as proved". 11 This is but a part of the
mental process from which the Court draws the essential ultimate
facts. A decision is not to be so clogged with details such that
prolixity, if not confusion, may result. So long as the decision of the
Court of Appeals contains the necessary facts to warrant its
conclusions, it is no error for said court to withhold therefrom "any
specific finding of facts with respect to the evidence for the
defense". Because as this Court well observed, "There is no law that
so requires". 12 Indeed, "the mere failure to specify (in the decision)
the contentions of the appellant and the reasons for refusing to
believe them is not sufficient to hold the same contrary to the
requirements of the provisions of law and the Constitution". It is in
this setting that in Manigque, it was held that the mere fact that the
findings "were based entirely on the evidence for the prosecution
without taking into consideration or even mentioning the appellant's
side in the controversy as shown by his own testimony", would not
vitiate the judgment. 13 If the court did not recite in the decision the
testimony of each witness for, or each item of evidence presented
by, the defeated party, it does not mean that the court has
overlooked such testimony or such item of evidence. 14 At any rate,
the legal presumptions are that official duty has been regularly
performed, and that all the matters within an issue in a case were
laid before the court and passed upon by it. 15
Findings of fact, which the Court of Appeals is required to make,
maybe defined as "the written statement of the ultimate facts as
found by the court ... and essential to support the decision and
judgment rendered thereon". 16 They consist of the court's
"conclusions" with respect to the determinative facts in issue". 17 A
question of law, upon the other hand, has been declared as "one
which does not call for an examination of the probative value of the
evidence presented by the parties." 18
2. By statute, "only questions of law may be raised" in an appeal by
certiorari from a judgment of the Court of Appeals. 19 That
judgment is conclusive as to the facts. It is not appropriately the
business of this Court to alter the facts or to review the questions of
fact. 20
With these guideposts, we now face the problem of whether the
findings of fact of the Court of Appeals support its judgment.
3. Was Carrascoso entitled to the first class seat he claims?
It is conceded in all quarters that on March 28, 1958 he paid to and
received from petitioner a first class ticket. But petitioner asserts
that said ticket did not represent the true and complete intent and
agreement of the parties; that said respondent knew that he did not
have confirmed reservations for first class on any specific flight,
although he had tourist class protection; that, accordingly, the
issuance of a first class ticket was no guarantee that he would have a
first class ride, but that such would depend upon the availability of
first class seats.
These are matters which petitioner has thoroughly presented and
discussed in its brief before the Court of Appeals under its third
assignment of error, which reads: "The trial court erred in finding
that plaintiff had confirmed reservations for, and a right to, first class
seats on the "definite" segments of his journey, particularly that
from Saigon to Beirut". 21
And, the Court of Appeals disposed of this contention thus:
Defendant seems to capitalize on the argument that the issuance of
a first-class ticket was no guarantee that the passenger to whom the
same had been issued, would be accommodated in the first-class
compartment, for as in the case of plaintiff he had yet to make
arrangements upon arrival at every station for the necessary first-
class reservation. We are not impressed by such a reasoning. We
cannot understand how a reputable firm like defendant airplane
company could have the indiscretion to give out tickets it never
meant to honor at all. It received the corresponding amount in
payment of first-class tickets and yet it allowed the passenger to be
at the mercy of its employees. It is more in keeping with the ordinary
course of business that the company should know whether or riot
the tickets it issues are to be honored or not.22
Not that the Court of Appeals is alone. The trial court similarly
disposed of petitioner's contention, thus:
On the fact that plaintiff paid for, and was issued a "First class"
ticket, there can be no question. Apart from his testimony, see
plaintiff's Exhibits "A", "A-1", "B", "B-1," "B-2", "C" and "C-1", and
defendant's own witness, Rafael Altonaga, confirmed plaintiff's
testimony and testified as follows:
Q. In these tickets there are marks "O.K." From what you know, what
does this OK mean?
A. That the space is confirmed.
Q. Confirmed for first class?
A. Yes, "first class". (Transcript, p. 169)
xxx xxx xxx
Defendant tried to prove by the testimony of its witnesses Luis
Zaldariaga and Rafael Altonaga that although plaintiff paid for, and
was issued a "first class" airplane ticket, the ticket was subject to
confirmation in Hongkong. The court cannot give credit to the
testimony of said witnesses. Oral evidence cannot prevail over
written evidence, and plaintiff's Exhibits "A", "A-l", "B", "B-l", "C" and
"C-1" belie the testimony of said witnesses, and clearly show that the
plaintiff was issued, and paid for, a first class ticket without any
reservation whatever.
Furthermore, as hereinabove shown, defendant's own witness
Rafael Altonaga testified that the reservation for a "first class"
accommodation for the plaintiff was confirmed. The court cannot
believe that after such confirmation defendant had a verbal
understanding with plaintiff that the "first class" ticket issued to him
by defendant would be subject to confirmation in Hongkong. 23
We have heretofore adverted to the fact that except for a slight
difference of a few pesos in the amount refunded on Carrascoso's
ticket, the decision of the Court of First Instance was affirmed by the
Court of Appeals in all other respects. We hold the view that such a
judgment of affirmance has merged the judgment of the lower
court. 24 Implicit in that affirmance is a determination by the Court
of Appeals that the proceeding in the Court of First Instance was free
from prejudicial error and "all questions raised by the assignments of
error and all questions that might have been raised are to be
regarded as finally adjudicated against the appellant". So also, the
judgment affirmed "must be regarded as free from all error". 25 We
reached this policy construction because nothing in the decision of
the Court of Appeals on this point would suggest that its findings of
fact are in any way at war with those of the trial court. Nor was said
affirmance by the Court of Appeals upon a ground or grounds
different from those which were made the basis of the conclusions
of the trial court. 26
If, as petitioner underscores, a first-class-ticket holder is not entitled
to a first class seat, notwithstanding the fact that seat availability in
specific flights is therein confirmed, then an air passenger is placed
in the hollow of the hands of an airline. What security then can a
passenger have? It will always be an easy matter for an airline aided
by its employees, to strike out the very stipulations in the ticket, and
say that there was a verbal agreement to the contrary. What if the
passenger had a schedule to fulfill? We have long learned that, as a
rule, a written document speaks a uniform language; that spoken
word could be notoriously unreliable. If only to achieve stability in
the relations between passenger and air carrier, adherence to the
ticket so issued is desirable. Such is the case here. The lower courts
refused to believe the oral evidence intended to defeat the
covenants in the ticket.
The foregoing are the considerations which point to the conclusion
that there are facts upon which the Court of Appeals predicated the
finding that respondent Carrascoso had a first class ticket and was
entitled to a first class seat at Bangkok, which is a stopover in the
Saigon to Beirut leg of the flight. 27 We perceive no "welter of
distortions by the Court of Appeals of petitioner's statement of its
position", as charged by petitioner. 28 Nor do we subscribe to
petitioner's accusation that respondent Carrascoso "surreptitiously
took a first class seat to provoke an issue". 29 And this because, as
petitioner states, Carrascoso went to see the Manager at his office in
Bangkok "to confirm my seat and because from Saigon I was told
again to see the Manager". 30 Why, then, was he allowed to take a
first class seat in the plane at Bangkok, if he had no seat? Or, if
another had a better right to the seat?
4. Petitioner assails respondent court's award of moral damages.
Petitioner's trenchant claim is that Carrascoso's action is planted
upon breach of contract; that to authorize an award for moral
damages there must be an averment of fraud or bad faith;31 and
that the decision of the Court of Appeals fails to make a finding of
bad faith. The pivotal allegations in the complaint bearing on this
issue are:
3. That ... plaintiff entered into a contract of air carriage with the
Philippine Air Lines for a valuable consideration, the latter acting as
general agents for and in behalf of the defendant, under which said
contract, plaintiff was entitled to, as defendant agreed to furnish
plaintiff, First Class passage on defendant's plane during the entire
duration of plaintiff's tour of Europe with Hongkong as starting point
up to and until plaintiff's return trip to Manila, ... .
4. That, during the first two legs of the trip from Hongkong to Saigon
and from Saigon to Bangkok, defendant furnished to the plaintiff
First Class accommodation but only after protestations, arguments
and/or insistence were made by the plaintiff with defendant's
employees.
5. That finally, defendant failed to provide First Class passage, but
instead furnished plaintiff only Tourist Class accommodations from
Bangkok to Teheran and/or Casablanca, ... the plaintiff has been
compelled by defendant's employees to leave the First Class
accommodation berths at Bangkok after he was already seated.
6. That consequently, the plaintiff, desiring no repetition of the
inconvenience and embarrassments brought by defendant's breach
of contract was forced to take a Pan American World Airways plane
on his return trip from Madrid to Manila.32
xxx xxx xxx

2. That likewise, as a result of defendant's failure to furnish First
Class accommodations aforesaid, plaintiff suffered inconveniences,
embarrassments, and humiliations, thereby causing plaintiff mental
anguish, serious anxiety, wounded feelings, social humiliation, and
the like injury, resulting in moral damages in the amount of
P30,000.00. 33
xxx xxx xxx
The foregoing, in our opinion, substantially aver: First, That there
was a contract to furnish plaintiff a first class passage covering,
amongst others, the Bangkok-Teheran leg; Second, That said
contract was breached when petitioner failed to furnish first class
transportation at Bangkok; and Third, that there was bad faith when
petitioner's employee compelled Carrascoso to leave his first class
accommodation berth "after he was already, seated" and to take a
seat in the tourist class, by reason of which he suffered
inconvenience, embarrassments and humiliations, thereby causing
him mental anguish, serious anxiety, wounded feelings and social
humiliation, resulting in moral damages. It is true that there is no
specific mention of the term bad faith in the complaint. But, the
inference of bad faith is there, it may be drawn from the facts and
circumstances set forth therein. 34 The contract was averred to
establish the relation between the parties. But the stress of the
action is put on wrongful expulsion.
Quite apart from the foregoing is that (a) right the start of the trial,
respondent's counsel placed petitioner on guard on what Carrascoso
intended to prove: That while sitting in the plane in Bangkok,
Carrascoso was ousted by petitioner's manager who gave his seat to
a white man; 35 and (b) evidence of bad faith in the fulfillment of the
contract was presented without objection on the part of the
petitioner. It is, therefore, unnecessary to inquire as to whether or
not there is sufficient averment in the complaint to justify an award
for moral damages. Deficiency in the complaint, if any, was cured by
the evidence. An amendment thereof to conform to the evidence is
not even required. 36 On the question of bad faith, the Court of
Appeals declared:
That the plaintiff was forced out of his seat in the first class
compartment of the plane belonging to the defendant Air France
while at Bangkok, and was transferred to the tourist class not only
without his consent but against his will, has been sufficiently
established by plaintiff in his testimony before the court,
corroborated by the corresponding entry made by the purser of the
plane in his notebook which notation reads as follows:
"First-class passenger was forced to go to the tourist class against his
will, and that the captain refused to intervene",
and by the testimony of an eye-witness, Ernesto G. Cuento, who was
a co-passenger. The captain of the plane who was asked by the
manager of defendant company at Bangkok to intervene even
refused to do so. It is noteworthy that no one on behalf of defendant
ever contradicted or denied this evidence for the plaintiff. It could
have been easy for defendant to present its manager at Bangkok to
testify at the trial of the case, or yet to secure his disposition; but
defendant did neither. 37
The Court of appeals further stated —
Neither is there evidence as to whether or not a prior reservation
was made by the white man. Hence, if the employees of the
defendant at Bangkok sold a first-class ticket to him when all the
seats had already been taken, surely the plaintiff should not have
been picked out as the one to suffer the consequences and to be
subjected to the humiliation and indignity of being ejected from his
seat in the presence of others. Instead of explaining to the white
man the improvidence committed by defendant's employees, the
manager adopted the more drastic step of ousting the plaintiff who
was then safely ensconsced in his rightful seat. We are strengthened
in our belief that this probably was what happened there, by the
testimony of defendant's witness Rafael Altonaga who, when asked
to explain the meaning of the letters "O.K." appearing on the tickets
of plaintiff, said "that the space is confirmed for first class. Likewise,
Zenaida Faustino, another witness for defendant, who was the chief
of the Reservation Office of defendant, testified as follows:
"Q How does the person in the ticket-issuing office know what
reservation the passenger has arranged with you?
A They call us up by phone and ask for the confirmation." (t.s.n., p.
247, June 19, 1959)
In this connection, we quote with approval what the trial Judge has
said on this point:
Why did the, using the words of witness Ernesto G. Cuento, "white
man" have a "better right" to the seat occupied by Mr. Carrascoso?
The record is silent. The defendant airline did not prove "any better",
nay, any right on the part of the "white man" to the "First class" seat
that the plaintiff was occupying and for which he paid and was
issued a corresponding "first class" ticket.
If there was a justified reason for the action of the defendant's
Manager in Bangkok, the defendant could have easily proven it by
having taken the testimony of the said Manager by deposition, but
defendant did not do so; the presumption is that evidence willfully
suppressed would be adverse if produced [Sec. 69, par (e), Rules of
Court]; and, under the circumstances, the Court is constrained to
find, as it does find, that the Manager of the defendant airline in
Bangkok not merely asked but threatened the plaintiff to throw him
out of the plane if he did not give up his "first class" seat because the
said Manager wanted to accommodate, using the words of the
witness Ernesto G. Cuento, the "white man".38
It is really correct to say that the Court of Appeals in the quoted
portion first transcribed did not use the term "bad faith". But can it
be doubted that the recital of facts therein points to bad faith? The
manager not only prevented Carrascoso from enjoying his right to a
first class seat; worse, he imposed his arbitrary will; he forcibly
ejected him from his seat, made him suffer the humiliation of having
to go to the tourist class compartment - just to give way to another
passenger whose right thereto has not been established. Certainly,
this is bad faith. Unless, of course, bad faith has assumed a meaning
different from what is understood in law. For, "bad faith"
contemplates a "state of mind affirmatively operating with furtive
design or with some motive of self-interest or will or for ulterior
purpose." 39
And if the foregoing were not yet sufficient, there is the express
finding of bad faith in the judgment of the Court of First Instance,
thus:
The evidence shows that the defendant violated its contract of
transportation with plaintiff in bad faith, with the aggravating
circumstances that defendant's Manager in Bangkok went to the
extent of threatening the plaintiff in the presence of many
passengers to have him thrown out of the airplane to give the "first
class" seat that he was occupying to, again using the words of the
witness Ernesto G. Cuento, a "white man" whom he (defendant's
Manager) wished to accommodate, and the defendant has not
proven that this "white man" had any "better right" to occupy the
"first class" seat that the plaintiff was occupying, duly paid for, and
for which the corresponding "first class" ticket was issued by the
defendant to him.40
5. The responsibility of an employer for the tortious act of its
employees need not be essayed. It is well settled in law. 41 For the
willful malevolent act of petitioner's manager, petitioner, his
employer, must answer. Article 21 of the Civil Code says:
ART. 21. Any person who willfully causes loss or injury to another in
a manner that is contrary to morals, good customs or public policy
shall compensate the latter for the damage.
In parallel circumstances, we applied the foregoing legal precept;
and, we held that upon the provisions of Article 2219 (10), Civil
Code, moral damages are recoverable. 42
6. A contract to transport passengers is quite different in kind and
degree from any other contractual relation. 43 And this, because of
the relation which an air-carrier sustains with the public. Its business
is mainly with the travelling public. It invites people to avail of the
comforts and advantages it offers. The contract of air carriage,
therefore, generates a relation attended with a public duty. Neglect
or malfeasance of the carrier's employees, naturally, could give
ground for an action for damages.
Passengers do not contract merely for transportation. They have a
right to be treated by the carrier's employees with kindness, respect,
courtesy and due consideration. They are entitled to be protected
against personal misconduct, injurious language, indignities and
abuses from such employees. So it is, that any rule or discourteous
conduct on the part of employees towards a passenger gives the
latter an action for damages against the carrier. 44
Thus, "Where a steamship company 45 had accepted a passenger's
check, it was a breach of contract and a tort, giving a right of action
for its agent in the presence of third persons to falsely notify her that
the check was worthless and demand payment under threat of
ejection, though the language used was not insulting and she was
not ejected." 46 And this, because, although the relation of
passenger and carrier is "contractual both in origin and nature"
nevertheless "the act that breaks the contract may be also a tort". 47
And in another case, "Where a passenger on a railroad train, when
the conductor came to collect his fare tendered him the cash fare to
a point where the train was scheduled not to stop, and told him that
as soon as the train reached such point he would pay the cash fare
from that point to destination, there was nothing in the conduct of
the passenger which justified the conductor in using insulting
language to him, as by calling him a lunatic," 48 and the Supreme
Court of South Carolina there held the carrier liable for the mental
suffering of said passenger.1awphîl.nèt
Petitioner's contract with Carrascoso is one attended with public
duty. The stress of Carrascoso's action as we have said, is placed
upon his wrongful expulsion. This is a violation of public duty by the
petitioner air carrier — a case of quasi-delict. Damages are proper.
7. Petitioner draws our attention to respondent Carrascoso's
testimony, thus —
Q You mentioned about an attendant. Who is that attendant and
purser?
A When we left already — that was already in the trip — I could not
help it. So one of the flight attendants approached me and
requested from me my ticket and I said, What for? and she said, "We
will note that you transferred to the tourist class". I said, "Nothing of
that kind. That is tantamount to accepting my transfer." And I also
said, "You are not going to note anything there because I am
protesting to this transfer".
Q Was she able to note it?
A No, because I did not give my ticket.
Q About that purser?
A Well, the seats there are so close that you feel uncomfortable and
you don't have enough leg room, I stood up and I went to the pantry
that was next to me and the purser was there. He told me, "I have
recorded the incident in my notebook." He read it and translated it
to me — because it was recorded in French — "First class passenger
was forced to go to the tourist class against his will, and that the
captain refused to intervene."
Mr. VALTE —
I move to strike out the last part of the testimony of the witness
because the best evidence would be the notes. Your Honor.
COURT —
I will allow that as part of his testimony. 49
Petitioner charges that the finding of the Court of Appeals that the
purser made an entry in his notebook reading "First class passenger
was forced to go to the tourist class against his will, and that the
captain refused to intervene" is predicated upon evidence
[Carrascoso's testimony above] which is incompetent. We do not
think so. The subject of inquiry is not the entry, but the ouster
incident. Testimony on the entry does not come within the
proscription of the best evidence rule. Such testimony is admissible.
49a
Besides, from a reading of the transcript just quoted, when the
dialogue happened, the impact of the startling occurrence was still
fresh and continued to be felt. The excitement had not as yet died
down. Statements then, in this environment, are admissible as part
of the res gestae. 50 For, they grow "out of the nervous excitement
and mental and physical condition of the declarant". 51 The
utterance of the purser regarding his entry in the notebook was
spontaneous, and related to the circumstances of the ouster
incident. Its trustworthiness has been guaranteed. 52 It thus escapes
the operation of the hearsay rule. It forms part of the res gestae.
At all events, the entry was made outside the Philippines. And, by an
employee of petitioner. It would have been an easy matter for
petitioner to have contradicted Carrascoso's testimony. If it were
really true that no such entry was made, the deposition of the purser
could have cleared up the matter.
We, therefore, hold that the transcribed testimony of Carrascoso is
admissible in evidence.
8. Exemplary damages are well awarded. The Civil Code gives the
court ample power to grant exemplary damages — in contracts and
quasi- contracts. The only condition is that defendant should have
"acted in a wanton, fraudulent, reckless, oppressive, or malevolent
manner." 53 The manner of ejectment of respondent Carrascoso
from his first class seat fits into this legal precept. And this, in
addition to moral damages.54
9. The right to attorney's fees is fully established. The grant of
exemplary damages justifies a similar judgment for attorneys' fees.
The least that can be said is that the courts below felt that it is but
just and equitable that attorneys' fees be given. 55 We do not intend
to break faith with the tradition that discretion well exercised — as it
was here — should not be disturbed.
10. Questioned as excessive are the amounts decreed by both the
trial court and the Court of Appeals, thus: P25,000.00 as moral
damages; P10,000.00, by way of exemplary damages, and P3,000.00
as attorneys' fees. The task of fixing these amounts is primarily with
the trial court. 56 The Court of Appeals did not interfere with the
same. The dictates of good sense suggest that we give our
imprimatur thereto. Because, the facts and circumstances point to
the reasonableness thereof.57
On balance, we say that the judgment of the Court of Appeals does
not suffer from reversible error. We accordingly vote to affirm the
same. Costs against petitioner. So ordered.
G.R. No. 108017 April 3, 1995
MARIA BENITA A. DULAY, in her own behalf and in behalf of the
minor children KRIZTEEN ELIZABETH, BEVERLY MARIE and
NAPOLEON II, all surnamed DULAY, petitioners,
vs.
THE COURT OF APPEALS, Former Eighth Division, HON. TEODORO P.
REGINO, in his capacity as Presiding Judge of the Regional Trial
Court National Capital Region, Quezon City, Br. 84, SAFEGUARD
INVESTIGATION AND SECURITY CO., INC., and SUPERGUARD
SECURITY CORPORATION, respondents.
BIDIN, J.:
This petition for certiorari prays for the reversal of the decision of
the Court of Appeals dated October 29, 1991 in CA-G.R. CV No.
24646 which affirmed the order of the Regional Trial Court
dismissing Civil Case No. Q-89-1751, and its resolution dated
November 17, 1991 denying herein, petitioner's motion for
reconsideration.
The antecedent facts of the case are as follows:
On December 7, 1988, an altercation between Benigno Torzuela and
Atty. Napoleon Dulay occurred at the "Big Bang Sa Alabang," Alabang
Village, Muntinlupa as a result of which Benigno Torzuela, the
security guard on duty at the said carnival, shot and killed Atty.
Napoleon Dulay.
Herein petitioner Maria Benita A. Dulay, widow of the deceased
Napoleon Dulay, in her own behalf and in behalf of her minor
children, filed on February 8, 1989 an action for damages against
Benigno Torzuela and herein private respondents Safeguard
Investigation and Security Co., Inc., ("SAFEGUARD") and/or
Superguard Security Corp. ("SUPERGUARD"), alleged employers of
defendant Torzuela. The complaint, docketed as Civil Case No. Q-89-
1751 among others alleges the following:
1. ...
Defendants SAFEGUARD INVESTIGATION AND SECURITY CO., INC.,
(Defendant Safeguard) and SUPERGUARD SECURITY CORPORATION
(Defendant Superguard) are corporations duly organized and existing
in accordance with Philippine laws, with offices at 10th Floor,
Manufacturers Building, Inc., Plaza Santa Cruz, Manila. They are
impleaded as alternative defendants for, while the former appears
to be the employer of defendant BENIGNO TORZUELA (defendant
TORZUELA), the latter impliedly acknowledged responsibility for the
acts of defendant TORZUELA by extending its sympathies to
plaintiffs.
Defendant BENIGNO TORZUELA is of legal age, an employee of
defendant SAFEGUARD and/or defendant SUPERGUARD and, at the
time of the incident complained of, was under their control and
supervision. . . .
3. On December 7, 1988 at around 8:00 a.m., defendant
TORZUELA, while he was on duty as security guard at the "Big Bang
sa Alabang," Alabang Village, Muntinlupa, Metro Manila shot and
killed NAPOLEON V. DULAY with a .38 caliber revolver belonging to
defendant SAFEGUARD, and/or SUPERGUARD (per Police Report
dated January 7, 1989, copy attached as Annex A);
4. The incident resulting in the death of NAPOLEON V. DULAY
was due to the concurring negligence of the defendants. Defendant
TORZUELA'S wanton and reckless discharge of the firearm issued to
him by defendant SAFEGUARD and/or SUPERGUARD was the
immediate and proximate cause of the injury, while the negligence
of defendant SAFEGUARD and/or SUPERGUARD consists in its having
failed to exercise the diligence of a good father of a family in the
supervision and control of its employee to avoid the injury.
xxx xxx xxx
(Rollo, pp. 117-118)
Petitioners prayed for actual, compensatory, moral and exemplary
damages, and attorney's fees. The said Civil Case No. Q-89-1751 was
raffled to Branch 84 of the Regional Trial Court of Quezon City,
presided by respondent Judge Teodoro Regino.
On March 2, 1989, private respondent SUPERGUARD filed a Motion
to Dismiss on the ground that the complaint does not state a valid
cause of action. SUPERGUARD claimed that Torzuela's act of
shooting Dulay was beyond the scope of his duties, and that since
the alleged act of shooting was committed with deliberate intent
(dolo), the civil liability therefor is governed by Article 100 of the
Revised Penal Code, which states:
Art. 100. Civil liability of a person guilty of a felony. — Every
person criminally liable for a felony is also civilly liable.
Respondent SUPERGUARD further alleged that a complaint for
damages based on negligence under Article 2176 of the New Civil
Code, such as the one filed by petitioners, cannot lie, since the civil
liability under Article 2176 applies only to quasi-offenses under
Article 365 of the Revised Penal Code. In addition, the private
respondent argued that petitioners' filing of the complaint is
premature considering that the conviction of Torzuela in a criminal
case is a condition sine qua non for the employer's subsidiary liability
(Rollo, p. 55-59).

Respondent SAFEGUARD also filed a motion praying that it be
excluded as defendant on the ground that defendant Torzuela is not
one of its employees (Rollo, p. 96).
Petitioners opposed both motions, stating that their cause of action
against the private respondents is based on their liability under
Article 2180 of the New Civil Code, which provides:
Art. 2180. The obligation imposed by Article 2176 is demandable
not only for one's own acts or omissions, but also for those of
persons for whom one is responsible.
xxx xxx xxx
Employers shall be liable for the damages caused by their employees
and household helpers acting within the scope of their assigned
tasks, even though the former are not engaged in any business or an
industry.
xxx xxx xxx
(Emphasis supplied)
Petitioners contended that a suit against alternative defendants is
allowed under Rule 3, Section 13 of the Rules of Court. Therefore,
the inclusion of private respondents as alternative defendants in the
complaint is justified by the following: the Initial Investigation Report
prepared by Pat. Mario Tubon showing that Torzuela is an employee
of SAFEGUARD; and through overt acts, SUPERGUARD extended its
sympathies to petitioners (Rollo, pp. 64 and 98).
Meanwhile, an Information dated March 21, 1989 charging Benigno
Torzuela with homicide was filed before the Regional Trial Court of
Makati and was docketed as Criminal Case No. 89-1896.
On April 13, 1989, respondent Judge Regino issued an order granting
SUPERGUARD'S motion to dismiss and SAFEGUARD'S motion for
exclusion as defendant. The respondent judge held that the complaint
did not state facts necessary or sufficient to constitute a quasi-delict
since it does not mention any negligence on the part of Torzuela in
shooting Napoleon Dulay or that the same was done in the
performance of his duties. Respondent judge ruled that mere
allegations of the concurring negligence of the defendants (private
respondents herein) without stating the facts showing such negligence
are mere conclusions of law (Rollo, p. 106). Respondent judge also
declared that the complaint was one for damages founded on crimes
punishable under Articles 100 and 103 of the Revised Penal Code as
distinguished from those arising from, quasi-delict. The dispositive
portion of the order dated April 13, 1989 states:
WHEREFORE, this Court holds that in view of the material and
ultimate facts alleged in the verified complaint and in accordance
with the applicable law on the matter as well as precedents laid
down by the Supreme Court, the complaint against the alternative
defendants Superguard Security Corporation and Safeguard
Investigation and Security Co., Inc., must be and (sic) it is hereby
dismissed. (Rollo, p. 110)
The above order was affirmed by the respondent court and
petitioners' motion for reconsideration thereof was denied.
Petitioners take exception to the assailed decision and insist that
quasi-delicts are not limited to acts of negligence but also cover acts
that are intentional and voluntary, citing Andamo v. IAC (191 SCRA
195 [1990]). Thus, petitioners insist that Torzuela' s act of shooting
Napoleon Dulay constitutes a quasi-delict actionable under Article
2176 of the New Civil Code.
Petitioners further contend that under Article 2180 of the New Civil
Code, private respondents are primarily liable for their negligence
either in the selection or supervision of their employees. This liability
is independent of the employee's own liability for fault or negligence
and is distinct from the subsidiary civil liability under Article 103 of
the Revised Penal Code. The civil action against the employer may
therefore proceed independently of the criminal action pursuant to
Rule 111 Section 3 of the Rules of Court. Petitioners submit that the
question of whether Torzuela is an employee of respondent
SUPERGUARD or SAFEGUARD would be better resolved after trial.
Moreover, petitioners argue that Torzuela's act of shooting Dulay is
also actionable under Article 33 of the New Civil Code, to wit:
Art. 33. In cases of defamation, fraud, and physical injuries, a
civil action for damages, entirely separate and distinct from the
criminal action, may be brought by the injured party. Such civil
action shall proceed independently of the criminal prosecution, and
shall require only a preponderance of evidence. (Emphasis supplied)
In the same vein, petitioners cite Section 3, Rule 111 of the Rules of
Court which provides:
Rule 111. ....
Sec. 3. When civil action may proceed independently — In the cases
provided for in Articles 32, 33, 34 and 2176 of the Civil Code of the
Philippines, the independent civil action which has been reserved
may be brought by the offended party, shall proceed independently
of the criminal action, and shall require only a preponderance of
evidence. (Emphasis supplied)
The term "physical injuries" under Article 33 has been held to
include consummated, frustrated and attempted homicide. Thus,
petitioners maintain that Torzuela's prior conviction is unnecessary
since the civil action can proceed independently of the criminal
action. On the other hand, it is the private respondents' argument
that since the act was not committed with negligence, the
petitioners have no cause of action under Articles 2116 and 2177 of
the New Civil Code. The civil action contemplated in Article 2177 is
not applicable to acts committed with deliberate intent, but only
applies to quasi-offenses under Article 365 of the Revised Penal
Code. Torzuela's act of shooting Atty. Dulay to death, aside from
being purely personal, was done with deliberate intent and could not
have been part of his duties as security guard. And since Article 2180
of the New Civil Code covers only: acts done within the scope of the
employee's assigned tasks, the private respondents cannot be held
liable for damages.
We find for petitioners.
It is undisputed that Benigno Torzuela is being prosecuted for
homicide for the fatal shooting of Napoleon Dulay. Rule 111 of the
Rules on Criminal Procedure provides:
Sec. 1. Institution of criminal and civil actions. When a criminal
action is instituted, the civil action for the recovery of civil liability is
impliedly instituted with the criminal action, unless the offended
party waives the civil action , reserves his right to institute it
separately or institutes the civil action prior to the criminal action.
Such civil action includes recovery of indemnity under the Revised
Penal Code, and damages under Articles 32, 33, 34, and 2176 of the
Civil Code of the Philippines arising from the same act or omission of
the accused. (Emphasis supplied)

It is well-settled that the filing of an independent civil action before
the prosecution in the criminal action presents evidence is even far
better than a compliance with the requirement of express
reservation (Yakult Philippines v. Court of Appeals, 190 SCRA 357
[1990]). This is precisely what the petitioners opted to do in this
case. However, the private respondents opposed the civil action on
the ground that the same is founded on a delict and not on a quasi-
delict as the shooting was not attended by negligence. What is in
dispute therefore is the nature of the petitioner's cause of action.
The nature of a cause of action is determined by the facts alleged in
the complaint as constituting the cause of action (Republic v.
Estenzo, 158 SCRA 282 [1988]). The purpose of an action or suit and
the law to govern it is to be determined not by the claim of the party
filing the action, made in his argument or brief, but rather by the
complaint itself, its allegations and prayer for relief. (De Tavera v.
Philippine Tuberculosis Society, 112 SCRA 243 [1982]). An
examination of the complaint in the present case would show that
the plaintiffs, petitioners herein, are invoking their right to recover
damages against the private respondents for their vicarious
responsibility for the injury caused by Benigno Torzuela's act of
shooting and killing Napoleon Dulay, as stated in paragraphs 1 and 2
of the complaint.
Article 2176 of the New Civil Code provides:
Art. 2176. Whoever by act or omission causes damage to
another, there being fault or negligence, is obliged to pay for the
damage done. Such fault or negligence, if there is no pre-existing
contractual relation between the parties is called a quasi-delict and
is governed by the provisions of this Chapter.
Contrary to the theory of private respondents, there is no
justification for limiting the scope of Article 2176 of the Civil Code to
acts or omissions resulting from negligence. Well-entrenched is the
doctrine that article 2176 covers not only acts committed with
negligence, but also acts which are voluntary and intentional. As far
back as the definitive case of Elcano v. Hill (77 SCRA 98 [1977]), this
Court already held that:
. . . Article 2176, where it refers to "fault or negligence," covers not
only acts "not punishable by law" but also acts criminal in character;
whether intentional and voluntary or negligent. Consequently, a
separate civil action against the offender in a criminal act, whether
or not he is criminally prosecuted and found guilty or acquitted,
provided that the offended party is not allowed, if he is actually
charged also criminally, to recover damages on both scores, and
would be entitled in such eventuality only to the bigger award of the
two, assuming the awards made in the two cases vary. In other
words, the extinction of civil liability referred to in Par. (e) of Section
3, Rule 111, refers exclusively to civil liability founded on Article 100
of the Revised Penal Code, whereas the civil liability for the same act
considered as quasi-delict only and not as a crime is not extinguished
even by a declaration in the criminal case that the criminal act
charged has not happened or has not been committed by the
accused. Briefly stated, We here hold, in reiteration of Garcia, that
culpa aquiliana includes voluntary and negligent acts which may be
punishable by law. (Emphasis supplied)
The same doctrine was echoed in the case of Andamo v.
Intermediate Appellate Court (191 SCRA 195 [1990]), wherein the
Court held:
Article 2176, whenever it refers to "fault or negligence," covers not
only acts criminal in character, whether intentional and voluntary or
negligent. Consequently, a civil action lies against the offender in a
criminal act, whether or not he is prosecuted or found guilty or
acquitted, provided that the offended party is not allowed, (if the
tortfeasor is actually also charged criminally), to recover damages on
both scores, and would be entitled in such eventuality only to the
bigger award of the two, assuming the awards made in the two cases
vary. [citing Virata v. Ochoa, 81 SCRA 472] (Emphasis supplied)
Private respondents submit that the word "intentional" in the
Andamo case is inaccurate obiter, and should be read as "voluntary"
since intent cannot be coupled with negligence as defined by Article
365 of the Revised Penal Code. In the absence of more substantial
reasons, this Court will not disturb the above doctrine on the
coverage of Article 2176.
Private respondents further aver that Article 33 of the New Civil
Code applies only to injuries intentionally committed pursuant to the
ruling in Marcia v. CA (120 SCRA 193 [1983]), and that the actions for
damages allowed thereunder are ex-delicto. However, the term
"physical injuries" in Article 33 has already been construed to include
bodily injuries causing death (Capuno v. Pepsi-Cola Bottling Co. of
the Philippines, 121 Phil. 638 [1965); Carandang v. Santiago, 97 Phil.
94 [1955]). It is not the crime of physical injuries defined in the
Revised Penal Code. It includes not only physical injuries but also
consummated, frustrated, and attempted homicide (Madeja v. Caro,
126 SCRA 293 [1983]). Although in the Marcia case (supra), it was
held that no independent civil action may be filed under Article 33
where the crime is the result of criminal negligence, it must be noted
however, that Torzuela, the accused in the case at bar, is charged
with homicide, not with reckless imprudence, whereas the
defendant in Marcia was charged with reckless imprudence.
Therefore, in this case, a civil action based on Article 33 lies.
Private respondents also contend that their liability is subsidiary
under the Revised Penal Code; and that they are not liable for
Torzuela's act which is beyond the scope of his duties as a security
guard. It having been established that the instant action is not ex-
delicto, petitioners may proceed directly against Torzuela and the
private respondents. Under Article 2180 of the New Civil Code as
aforequoted, when an injury is caused by the negligence of the
employee, there instantly arises a presumption of law that there was
negligence on the part of the master or employer either in the
selection of the servant or employee, or in supervision over him
after selection or both (Layugan v. Intermediate Appellate Court, 167
SCRA 363 [1988]). The liability of the employer under Article 2180 is
direct and immediate; it is not conditioned upon prior recourse
against the negligent employee and a prior showing of the
insolvency of such employee (Kapalaran Bus Lines v. Coronado, 176
SCRA 792 [1989]). Therefore, it is incumbent upon the private
respondents to prove that they exercised the diligence of a good
father of a family in the selection and supervision of their employee.
Since Article 2176 covers not only acts of negligence but also acts
which are intentional and voluntary, it was therefore erroneous on
the part of the trial court to dismiss petitioner's complaint simply
because it failed to make allegations of attendant negligence
attributable to private respondents.
With respect to the issue of whether the complaint at hand states a
sufficient cause of action, the general rule is that the allegations in a
complaint are sufficient to constitute a cause of action against the
defendants if, admitting the facts alleged, the court can render a
valid judgment upon the same in accordance with the prayer
therein. A cause of action exist if the following elements are present,
namely: (1) a right in favor of the plaintiff by whatever means and
under whatever law it arises or is created; (2) an obligation on the
part of the named defendant to respect or not to violate such right;
and (3) an act or omission on the part of such defendant violative of
the right of the plaintiff or constituting a breach of the obligation of
the defendant to the plaintiff for which the latter may maintain an
action for recovery of damages (Del Bros Hotel Corporation v. CA,
210 SCRA 33 [1992]); Development Bank of the Philippines v.
Pundogar, 218 SCRA 118 [1993])
This Court finds, under the foregoing premises, that the complaint
sufficiently alleged an actionable breach on the part of the
defendant Torzuela and respondents SUPERGUARD and/or
SAFEGUARD. It is enough that the complaint alleged that Benigno
Torzuela shot Napoleon Dulay resulting in the latter's death; that the
shooting occurred while Torzuela was on duty; and that either
SUPERGUARD and/or SAFEGUARD was Torzuela's employer and
responsible for his acts. This does not operate however, to establish
that the defendants below are liable. Whether or not the shooting
was actually reckless and wanton or attended by negligence and
whether it was actually done within the scope of Torzuela's duties;
whether the private respondents SUPERGUARD and/or SAFEGUARD
failed to exercise the diligence of a good father of a family; and
whether the defendants are actually liable, are questions which can
be better resolved after trial on the merits where each party can
present evidence to prove their respective allegations and defenses.
In determining whether the allegations of a complaint are sufficient
to support a cause of action, it must be borne in mind that the
complaint does not have to establish or allege the facts proving the
existence of a cause of action at the outset; this will have to be done
at the trial on the merits of the case (Del Bros Hotel Corporation v.
CA, supra). If the allegations in a complaint can furnish a sufficient
basis by which the complaint can be maintained, the same should
not be dismissed regardless of the defenses that may be assessed by
the defendants (Rava Dev't. Corp. v. CA, 211 SCRA 152 [1992] citing
Consolidated Bank & Trust Corporation v. Court of Appeals, 197
SCRA 663 [1991]). To sustain a motion to dismiss for lack of cause of
action, the complaint must show that the claim for relief does not
exist rather than that a claim has been defectively stated, is
ambiguous, indefinite or uncertain (Azur v. Provincial Board, 27 SCRA
50 [1969]). Since the petitioners clearly sustained an injury to their
rights under the law, it would be more just to allow them to present
evidence of such injury.
WHEREFORE, premises considered, the petition for review is hereby
GRANTED. The decision of the Court of Appeals as well as the Order
of the Regional Trial Court dated April 13, 1989 are hereby
REVERSED and SET ASIDE. Civil Case No. Q-89-1751 is remanded to
the Regional Trial Court for trial on the merits. This decision is
immediately executory.
SO ORDERED.
Barredo v Garcia
At about 1:30am on May 3, 1936, Fontanilla’s taxi collided with a
“kalesa” thereby killing the 16 year old Faustino Garcia. Faustino’s
parents filed a criminal suit against Fontanilla and reserved their
right to file a separate civil suit. Fontanilla was eventually convicted.
After the criminal suit, Garcia filed a civil suit against Barredo – the
owner of the taxi (employer of Fontanilla). The suit was based on
Article 1903 of the civil code (negligence of employers in the
selection of their employees). Barredo assailed the suit arguing that
his liability is only subsidiary and that the separate civil suit should
have been filed against Fontanilla primarily and not him.
ISSUE: Whether or not Barredo is just subsidiarily liable.
HELD: No. He is primarily liable under Article 1903 which is a
separate civil action against negligent employers. Garcia is well
within his rights in suing Barredo. He reserved his right to file a
separate civil action and this is more expeditious because by the
time of the SC judgment Fontanilla is already serving his sentence
and has no property. It was also proven that Barredo is negligent in
hiring his employees because it was shown that Fontanilla had had
multiple traffic infractions already before he hired him – something
he failed to overcome during hearing. Had Garcia not reserved his
right to file a separate civil action, Barredo would have only been
subsidiarily liable. Further, Barredo is not being sued for damages
arising from a criminal act (his driver’s negligence) but rather for his
own negligence in selecting his employee (Article 1903).
G.R. No. L-48006 July 8, 1942
FAUSTO BARREDO, petitioner,
vs.
SEVERINO GARCIA and TIMOTEA ALMARIO, respondents.
Celedonio P. Gloria and Antonio Barredo for petitioner.
Jose G.
Advincula for respondents.
DECISION
BOCOBO, J.:
This case comes up from the Court of Appeals which held the
petitioner herein, Fausto Barredo, liable in damages for the death of
Faustino Garcia caused by the negligence of Pedro Fontanilla, a taxi
driver employed by said Fausto Barredo.
At about half past one in the morning of May 3, 1936, on the road
between Malabon and Navotas, Province of Rizal, there was a head-
on collision between a taxi of the Malate Taxicab driven by Pedro
Fontanilla and a carretela guided by Pedro Dimapalis. The carretela
was overturned, and one of its passengers, 16-year-old boy Faustino
Garcia, suffered injuries from which he died two days later. A
criminal action was filed against Fontanilla in the Court of First
Instance of Rizal, and he was convicted and sentenced to an
indeterminate sentence of one year and one day to two years
of prision correccional. The court in the criminal case granted the
petition that the right to bring a separate civil action be reserved.
The Court of Appeals affirmed the sentence of the lower court in the
criminal case. Severino Garcia and Timotea Almario, parents of the
deceased on March 7, 1939, brought an action in the Court of First
Instance of Manila against Fausto Barredo as the sole proprietor of
the Malate Taxicab and employer of Pedro Fontanilla. On July 8,
1939, the Court of First Instance of Manila awarded damages in
favor of the plaintiffs for P2,000 plus legal interest from the date of
the complaint. This decision was modified by the Court of Appeals
by reducing the damages to P1,000 with legal interest from the time
the action was instituted. It is undisputed that Fontanilla ‘s
negligence was the cause of the mishap, as he was driving on the
wrong side of the road, and at high speed. As to Barredo’s
responsibility, the Court of Appeals found:
… It is admitted that defendant is Fontanilla’s employer. There is
proof that he exercised the diligence of a good father of a family to
prevent damage. (See p. 22, appellant’s brief.) In fact it is shown he
was careless in employing Fontanilla who had been caught several
times for violation of the Automobile Law and speeding (Exhibit A)
— violation which appeared in the records of the Bureau of Public
Works available to be public and to himself. Therefore, he must
indemnify plaintiffs under the provisions of article 1903 of the Civil
Code.
The main theory of the defense is that the liability of Fausto Barredo
is governed by the Revised Penal Code; hence, his liability is only
subsidiary, and as there has been no civil action against Pedro
Fontanilla, the person criminally liable, Barredo cannot be held
responsible in the case. The petitioner’s brief states on page 10:
… The Court of Appeals holds that the petitioner is being sued for
his failure to exercise all the diligence of a good father of a family in
the selection and supervision of Pedro Fontanilla to prevent
damages suffered by the respondents. In other words, The Court of
Appeals insists on applying in the case article 1903 of the Civil Code.
Article 1903 of the Civil Code is found in Chapter II, Title 16, Book IV
of the Civil Code. This fact makes said article to a civil liability arising
from a crime as in the case at bar simply because Chapter II of Title
16 of Book IV of the Civil Code, in the precise words of article 1903 of
the Civil Code itself, is applicable only to “those (obligations) arising
from wrongful or negligent acts or commission not punishable by
law.
The gist of the decision of the Court of Appeals is expressed thus:
… We cannot agree to the defendant’s contention. The liability
sought to be imposed upon him in this action is not a civil obligation
arising from a felony or a misdemeanor (the crime of Pedro
Fontanilla,), but an obligation imposed in article 1903 of the Civil
Code by reason of his negligence in the selection or supervision of
his servant or employee.
The pivotal question in this case is whether the plaintiffs may bring
this separate civil action against Fausto Barredo, thus making him
primarily and directly, responsible under article 1903 of the Civil
Code as an employer of Pedro Fontanilla. The defendant maintains
that Fontanilla’s negligence being punishable by the Penal Code, his
(defendant’s) liability as an employer is only subsidiary, according to
said Penal code, but Fontanilla has not been sued in a civil action
and his property has not been exhausted. To decide the main issue,
we must cut through the tangle that has, in the minds of many
confused and jumbled together delitos and cuasi delitos, or crimes
under the Penal Code and fault or negligence under articles 1902-
1910 of the Civil Code. This should be done, because justice may be
lost in a labyrinth, unless principles and remedies are distinctly
envisaged. Fortunately, we are aided in our inquiry by the luminous
presentation of the perplexing subject by renown jurists and we are
likewise guided by the decisions of this Court in previous cases as
well as by the solemn clarity of the consideration in several
sentences of the Supreme Tribunal of Spain.
Authorities support the proposition that a quasi-delict or “culpa
aquiliana ” is a separate legal institution under the Civil Code with a
substantivity all its own, and individuality that is entirely apart and
independent from delict or crime. Upon this principle and on the
wording and spirit article 1903 of the Civil Code, the primary and
direct responsibility of employers may be safely anchored.
The pertinent provisions of the Civil Code and Revised Penal Code
are as follows:
CIVIL CODE
ART. 1089 Obligations arise from law, from contracts and quasi-
contracts, and from acts and omissions which are unlawful or in
which any kind of fault or negligence intervenes.
xxx xxx xxx
ART. 1092. Civil obligations arising from felonies or misdemeanors
shall be governed by the provisions of the Penal Code.
ART. 1093. Those which are derived from acts or omissions in which
fault or negligence, not punishable by law, intervenes shall be
subject to the provisions of Chapter II, Title XVI of this book.
xxx xxx xxx
ART 1902. Any person who by an act or omission causes damage to
another by his fault or negligence shall be liable for the damage so
done.
ART. 1903. The obligation imposed by the next preceding article is
enforceable, not only for personal acts and omissions, but also for
those of persons for whom another is responsible.
The father and in, case of his death or incapacity, the mother, are
liable for any damages caused by the minor children who live with
them.
Guardians are liable for damages done by minors or incapacitated
persons subject to their authority and living with them.
Owners or directors of an establishment or business are equally
liable for any damages caused by their employees while engaged in
the branch of the service in which employed, or on occasion of the
performance of their duties.
The State is subject to the same liability when it acts through a
special agent, but not if the damage shall have been caused by the
official upon whom properly devolved the duty of doing the act
performed, in which case the provisions of the next preceding article
shall be applicable.
Finally, teachers or directors of arts trades are liable for any
damages caused by their pupils or apprentices while they are under
their custody.
The liability imposed by this article shall cease in case the persons
mentioned therein prove that they are exercised all the diligence of
a good father of a family to prevent the damage.
ART. 1904. Any person who pays for damage caused by his
employees may recover from the latter what he may have paid.
REVISED PENAL CODE
ART. 100. Civil liability of a person guilty of felony. — Every person
criminally liable for a felony is also civilly liable.
ART. 101. Rules regarding civil liability in certain cases. — The
exemption from criminal liability established in subdivisions 1, 2, 3,
5, and 6 of article 12 and in subdivision 4 of article 11 of this Code
does not include exemption from civil liability, which shall be
enforced to the following rules:
First. In cases of subdivision, 1, 2 and 3 of article 12 the civil liability
for acts committed by any imbecile or insane person, and by a
person under nine years of age, or by one over nine but under fifteen
years of age, who has acted without discernment shall devolve upon
those having such person under their legal authority or control,
unless it appears that there was no fault or negligence on their part.
Should there be no person having such insane, imbecile or minor
under his authority, legal guardianship, or control, or if such person
be insolvent, said insane, imbecile, or minor shall respond with their
own property, excepting property exempt from execution, in
accordance with the civil law.
Second. In cases falling within subdivision 4 of article 11, the person
for whose benefit the harm has been prevented shall be civilly liable
in proportion to the benefit which they may have received.
The courts shall determine, in their sound discretion, the
proportionate amount for which each one shall be liable.
When the respective shares cannot be equitably determined, even
approximately, or when the liability also attaches to the
Government, or to the majority of the inhabitants of the town, and,
in all events, whenever the damage has been caused with the
consent of the authorities or their agents, indemnification shall be
made in the manner prescribed by special laws or regulations.
Third. In cases falling within subdivisions 5 and 6 of article 12, the
persons using violence or causing the fear shall be primarily liable
and secondarily, or, if there be no such persons, those doing the act
shall be liable, saving always to the latter that part of their property
exempt from execution.
ART. 102. Subsidiary civil liability of innkeepers, tavern keepers and
proprietors of establishment. — In default of persons criminally liable,
innkeepers, tavern keepers, and any other persons or corporation
shall be civilly liable for crimes committed in their establishments, in
all cases where a violation of municipal ordinances or some general
or special police regulation shall have been committed by them or
their employees.
Innkeepers are also subsidiarily liable for the restitution of goods
taken by robbery or theft within their houses lodging therein, or the
person, or for the payment of the value thereof, provided that such
guests shall have notified in advance the innkeeper himself, or the
person representing him, of the deposit of such goods within the
inn; and shall furthermore have followed the directions which such
innkeeper or his representative may have given them with respect
to the care of and vigilance over such goods. No liability shall attach
in case of robbery with violence against or intimidation against or
intimidation of persons unless committed by the innkeeper’s
employees.
ART. 103. Subsidiary civil liability of other persons. — The subsidiary
liability established in the next preceding article shall also apply to
employers, teachers, persons, and corporations engaged in any kind
of industry for felonies committed by their servants, pupils,
workmen, apprentices, or employees in the discharge of their
duties.
xxx xxx xxx
ART. 365. Imprudence and negligence. — Any person who, by
reckless imprudence, shall commit any act which, had it been
intentional, would constitute a grave felony, shall suffer the penalty
of arresto mayor in its maximum period to prision correccional in its
minimum period; if it would have constituted a less grave felony, the
penalty of arresto mayor in its minimum and medium periods shall
be imposed.
Any person who, by simple imprudence or negligence, shall commit
an act which would otherwise constitute a grave felony, shall suffer
the penalty of arresto mayor in its medium and maximum periods; if
it would have constituted a less serious felony, the penalty of arresto
mayor in its minimum period shall be imposed.”
It will thus be seen that while the terms of articles 1902 of the Civil
Code seem to be broad enough to cover the driver’s negligence in
the instant case, nevertheless article 1093 limits cuasi-delitos to acts
or omissions “not punishable by law.” But inasmuch as article 365 of
the Revised Penal Code punishes not only reckless but even simple
imprudence or negligence, the fault or negligence under article 1902
of the Civil Code has apparently been crowded out. It is this
overlapping that makes the “confusion worse confounded.”
However, a closer study shows that such a concurrence of scope in
regard to negligent acts does not destroy the distinction between
the civil liability arising from a crime and the responsibility for cuasi-
delitos or culpa extra-contractual. The same negligent act causing
damages may produce civil liability arising from a crime under
article 100 of the Revised Penal Code, or create an action for cuasi-
delito or culpa extra-contractual under articles 1902-1910 of the Civil
Code.
The individuality of cuasi-delito or culpa extra-contractual looms
clear and unmistakable. This legal institution is of ancient lineage,
one of its early ancestors being the Lex Aquilia in the Roman Law. In
fact, in Spanish legal terminology, this responsibility is often
referred to as culpa aquiliana. The Partidas also contributed to the
genealogy of the present fault or negligence under the Civil Code;
for instance, Law 6, Title 15, of Partida 7, says: “Tenudo es de fazer
emienda, porque, como quier que el non fizo a sabiendas en daño al
otro, pero acaescio por su culpa.”
The distinctive nature of cuasi-delitos survives in the Civil Code.
According to article 1089, one of the five sources of obligations is
this legal institution of cuasi-delito or culpa extra-contractual: “los
actos . . . en que intervenga cualquier genero de culpa o
negligencia.” Then article 1093 provides that this kind of obligation
shall be governed by Chapter II of Title XVI of Book IV, meaning
articles 1902-0910. This portion of the Civil Code is exclusively
devoted to the legal institution of culpa aquiliana.
Some of the differences between crimes under the Penal Code and
the culpa aquiliana or cuasi-delito under the Civil Code are:
1. That crimes affect the public interest, while cuasi-delitos are only
of private concern.
2. That, consequently, the Penal Code punishes or corrects the
criminal act, while the Civil Code, by means of indemnification,
merely repairs the damage.
3. That delicts are not as broad as quasi-delicts, because the former
are punished only if there is a penal law clearly covering them, while
the latter, cuasi-delitos, include all acts in which “any king of fault or
negligence intervenes.” However, it should be noted that not all
violations of the penal law produce civil responsibility, such as
begging in contravention of ordinances, violation of the game laws,
infraction of the rules of traffic when nobody is hurt. (See Colin and
Capitant, “Curso Elemental de Derecho Civil,” Vol. 3, p. 728.)
Let us now ascertain what some jurists say on the separate
existence of quasi-delicts and the employer’s primary and direct
liability under article 1903 of the Civil Code.
Dorado Montero in his essay on “Responsibilidad” in the
“Enciclopedia Juridica Española” (Vol. XXVII, p. 414) says:
El concepto juridico de la responsabilidad civil abarca diversos
aspectos y comprende a diferentes personas. Asi, existe una
responsabilidad civil propiamente dicha, que en ningun casl lleva
aparejada responsabilidad criminal alguna, y otra que es
consecuencia indeclinable de la penal que nace de todo delito o
falta.”
The juridical concept of civil responsibility has various aspects and
comprises different persons. Thus, there is a civil responsibility,
properly speaking, which in no case carries with it any criminal
responsibility, and another which is a necessary consequence of the
penal liability as a result of every felony or misdemeanor.”
Maura, an outstanding authority, was consulted on the following
case: There had been a collision between two trains belonging
respectively to the Ferrocarril Cantabrico and the Ferrocarril del
Norte. An employee of the latter had been prosecuted in a criminal
case, in which the company had been made a party as subsidiarily
responsible in civil damages. The employee had been acquitted in
the criminal case, and the employer, the Ferrocarril del Norte, had
also been exonerated. The question asked was whether the
Ferrocarril Cantabrico could still bring a civil action for damages
against the Ferrocarril del Norte.
As things are, apropos of the reality pure and simple of the facts, it
seems less tenable that there should be res judicata with regard to
the civil obligation for damages on account of the losses caused by
the collision of the trains. The title upon which the action for
reparation is based cannot be confused with the civil
responsibilities born of a crime, because there exists in the latter,
whatever each nature, a culpa surrounded with aggravating aspects
which give rise to penal measures that are more or less severe. The
injury caused by a felony or misdemeanor upon civil rights requires
restitutions, reparations, or indemnifications which, like the penalty
itself, affect public order; for this reason, they are ordinarily
entrusted to the office of the prosecuting attorney; and it is clear
that if by this means the losses and damages are repaired, the
injured party no longer desires to seek another relief; but this
coincidence of effects does not eliminate the peculiar nature of civil
actions to ask for indemnity.
Such civil actions in the present case (without referring to
contractual faults which are not pertinent and belong to another
scope) are derived, according to article 1902 of the Civil Code, from
every act or omission causing losses and damages in which culpa or
negligence intervenes. It is unimportant that such actions are every
day filed before the civil courts without the criminal courts
interfering therewith. Articles 18 to 21 and 121 to 128 of the Penal
Code, bearing in mind the spirit and the social and political purposes
of that Code, develop and regulate the matter of civil
responsibilities arising from a crime, separately from the regime
under common law, of culpa which is known as aquiliana, in
accordance with legislative precedent of the Corpus Juris. It would be
unwarranted to make a detailed comparison between the former
provisions and that regarding the obligation to indemnify on
account of civil culpa; but it is pertinent and necessary to point out
to one of such differences.
Articles 20 and 21 of the Penal Code, after distributing in their own
way the civil responsibilities among those who, for different
reasons, are guilty of felony or misdemeanor, make such civil
responsibilities applicable to enterprises and establishments for
which the guilty parties render service, but with subsidiary
character, that is to say, according to the wording of the Penal
Code, in default of those who are criminally responsible. In this
regard, the Civil Code does not coincide because article 1903 says:
“The obligation imposed by the next preceding article is
demandable, not only for personal acts and omissions, but also for
those of persons for whom another is responsible.” Among the
persons enumerated are the subordinates and employees of
establishments or enterprises, either for acts during their service or
on the occasion of their functions. It is for this reason that it
happens, and it is so observed in judicial decisions, that the
companies or enterprises, after taking part in the criminal cases
because of their subsidiary civil responsibility by reason of the crime,
are sued and sentenced directly and separately with regard to the
obligation, before the civil courts.
Seeing that the title of this obligation is different, and the
separation between punitive justice and the civil courts being a true
postulate of our judicial system, so that they have different
fundamental norms in different codes, as well as different modes of
procedure, and inasmuch as the Compaña del Ferrocarril Cantabrico
has abstained from taking part in the criminal case and has reserved
the right to exercise its actions, it seems undeniable that the action
for indemnification for the losses and damages caused to it by the
collision was not sub judice before the Tribunal del Jurado, nor was it
the subject of a sentence, but it remained intact when the decision
of March 21 was rendered. Even if the verdict had not been that of
acquittal, it has already been shown that such action had been
legitimately reserved till after the criminal prosecution; but because
of the declaration of the non-existence of the felony and the non-
existence of the responsibility arising from the crime, which was
the sole subject matter upon which the Tribunal del Jurado had
jurisdiction, there is greater reason for the civil obligation ex lege,
and it becomes clearer that the action for its enforcement remain
intact and is not res judicata.
Laurent, a jurist who has written a monumental work on the French
Civil Code, on which the Spanish Civil Code is largely based and
whose provisions on cuasi-delito or culpa extra-contractual are
similar to those of the Spanish Civil Code, says, referring to article
1384 of the French Civil Code which corresponds to article 1903,
Spanish Civil Code:
The action can be brought directly against the person responsible
(for another), without including the author of the act. The action
against the principal is accessory in the sense that it implies the
existence of a prejudicial act committed by the employee, but it is
not subsidiary in the sense that it cannot 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.
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.