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CHAPTER 2
QUASI-DELICTS
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. (1902a)
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. (n)
Art. 2178. The provisions of Articles 1172 to 1174 are also
applicable to a quasi-delict. (n)
Art. 2179. When the plaintiff's own negligence was the
immediate and proximate cause of his injury, he cannot
recover damages. But if his negligence was only
contributory, the immediate and proximate cause of the
injury being the defendant's lack of due care, the plaintiff
may recover damages, but the courts shall mitigate the
damages to be awarded. (n)
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.
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.
Guardians are liable for damages caused by the minors or
incapacitated persons who are under their authority and
live in their company.
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.
Employers shall be liable for the damages caused by their
employees and household helpers acting within the scope
of their assigned tasks, even though the former are not
engaged in any business or industry.
The State is responsible in like manner when it acts through
a special agent; but not when the damage has been caused
by the official to whom the task done properly pertains, in
which case what is provided in Article 2176 shall be
applicable.
Lastly, teachers or heads of establishments of arts and
trades shall be liable for damages caused by their pupils and
students or apprentices, so long as they remain in their
custody.
The responsibility treated of in this article shall cease when
the persons herein mentioned prove that they observed all
the diligence of a good father of a family to prevent
damage. (1903a)
Art. 2181. Whoever pays for the damage caused by his
dependents or employees may recover from the latter what
he has paid or delivered in satisfaction of the claim. (1904)
Art. 2182. If the minor or insane person causing damage has
no parents or guardian, the minor or insane person shall be
answerable with his own property in an action against him
where a guardian ad litem shall be appointed. (n)
Art. 2183. The possessor of an animal or whoever may make
use of the same is responsible for the damage which it may
cause, although it may escape or be lost. This responsibility
shall cease only in case the damage should come from force
majeure or from the fault of the person who has suffered
damage. (1905)
Art. 2184. In motor vehicle mishaps, the owner is solidarily
liable with his driver, if the former, who was in the vehicle,
could have, by the use of the due diligence, prevented the
misfortune. It is disputably presumed that a driver was
negligent, if he had been found guilty or reckless driving or
violating traffic regulations at least twice within the next
preceding two months.
If the owner was not in the motor vehicle, the provisions of
Article 2180 are applicable. (n)
Art. 2185. Unless there is proof to the contrary, it is
presumed that a person driving a motor vehicle has been
negligent if at the time of the mishap, he was violating any
traffic regulation. (n)
Art. 2186. Every owner of a motor vehicle shall file with the
proper government office a bond executed by a
government-controlled corporation or office, to answer for
damages to third persons. The amount of the bond and
other terms shall be fixed by the competent public official.
(n)
Art. 2187. Manufacturers and processors of foodstuffs,
drinks, toilet articles and similar goods shall be liable for
death or injuries caused by any noxious or harmful
substances used, although no contractual relation exists
between them and the consumers. (n)
Art. 2188. There is prima facie presumption of negligence
on the part of the defendant if the death or injury results
from his possession of dangerous weapons or substances,
such as firearms and poison, except when the possession or
use thereof is indispensable in his occupation or business.
(n)
Art. 2189. Provinces, cities and municipalities shall be liable
for damages for the death of, or injuries suffered by, any
person by reason of the defective condition of roads,
streets, bridges, public buildings, and other public works
under their control or supervision. (n)
Art. 2190. The proprietor of a building or structure is
responsible for the damages resulting from its total or
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partial collapse, if it should be due to the lack of necessary
repairs. (1907)
Art. 2191. Proprietors shall also be responsible for damages
caused:
(1) By the explosion of machinery which has not
been taken care of with due diligence, and the
inflammation of explosive substances which have
not been kept in a safe and adequate place;
(2) By excessive smoke, which may be harmful to
persons or property;
(3) By the falling of trees situated at or near
highways or lanes, if not caused by force majeure;
(4) By emanations from tubes, canals, sewers or
deposits of infectious matter, constructed without
precautions suitable to the place. (1908)
Art. 2192. If damage referred to in the two preceding
articles should be the result of any defect in the
construction mentioned in Article 1723, the third person
suffering damages may proceed only against the engineer
or architect or contractor in accordance with said article,
within the period therein fixed. (1909)
Art. 2193. The head of a family that lives in a building or a
part thereof, is responsible for damages caused by things
thrown or falling from the same. (1910)
Art. 2194. The responsibility of two or more persons who
are liable for quasi-delict is solidary. (n)
TORTS VS QUASI DELICTS
G.R. No. L-48006 July 8, 1942
FAUSTO BARREDO, petitioner,
vs.
SEVERINO GARCIA and TIMOTEA ALMARIO, respondents.
BOCOBO, J.:
This case comes up from the Court of Appeals which held
the petitioner herein, Fausto Barredo, liable in damages for
the death of Faustino Garcia caused by the negligence of
Pedro Fontanilla, a taxi driver employed by said Fausto
Barredo.
At about half past one in the morning of May 3, 1936, on
the road between Malabon and Navotas, Province of Rizal,
there was a head-on collision between a taxi of the Malate
Taxicab driven by Pedro Fontanilla and a carretela guided
by Pedro Dimapalis. The carretela was overturned, and one
of its passengers, 16-year-old boy Faustino Garcia, suffered
injuries from which he died two days later. A criminal action
was filed against Fontanilla in the Court of First Instance of
Rizal, and he was convicted and sentenced to an
indeterminate sentence of one year and one day to two
years of prision correccional. The court in the criminal case
granted the petition that the right to bring a separate civil
action be reserved. The Court of Appeals affirmed the
sentence of the lower court in the criminal case. Severino
Garcia and Timotea Almario, parents of the deceased on
March 7, 1939, brought an action in the Court of First
Instance of Manila against Fausto Barredo as the sole
proprietor of the Malate Taxicab and employer of Pedro
Fontanilla. On July 8, 1939, the Court of First Instance of
Manila awarded damages in favor of the plaintiffs for
P2,000 plus legal interest from the date of the complaint.
This decision was modified by the Court of Appeals by
reducing the damages to P1,000 with legal interest from the
time the action was instituted. It is undisputed that
Fontanilla 's negligence was the cause of the mishap, as he
was driving on the wrong side of the road, and at high
speed. As to Barredo's responsibility, the Court of Appeals
found:
... It is admitted that defendant is
Fontanilla's employer. There is proof that
he exercised the diligence of a good father
of a family to prevent damage. (See p. 22,
appellant's brief.) In fact it is shown he was
careless in employing Fontanilla who had
been caught several times for violation of
the Automobile Law and speeding (Exhibit
A) — violation which appeared in the
records of the Bureau of Public Works
available to be public and to himself.
Therefore, he must indemnify plaintiffs
under the provisions of article 1903 of the
Civil Code.
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:
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... We cannot agree to the defendant's provisions of Chapter II, Title XVI of this
contention. The liability sought to be book.
imposed upon him in this action is not a
civil obligation arising from a felony or a xxx xxx xxx
misdemeanor (the crime of Pedro
Fontanilla,), but an obligation imposed in ART 1902. Any person who by an act or
article 1903 of the Civil Code by reason of omission causes damage to another by his
his negligence in the selection or fault or negligence shall be liable for the
supervision of his servant or employee. damage so done.

The pivotal question in this case is whether the plaintiffs ART. 1903. The obligation imposed by the
may bring this separate civil action against Fausto Barredo, next preceding article is enforcible, not
thus making him primarily and directly, responsible under only for personal acts and omissions, but
article 1903 of the Civil Code as an employer of Pedro also for those of persons for whom
Fontanilla. The defendant maintains that Fontanilla's another is responsible.
negligence being punishable by the Penal Code, his
(defendant's) liability as an employer is only subsidiary, The father and in, case of his death or
according to said Penal code, but Fontanilla has not been incapacity, the mother, are liable for any
sued in a civil action and his property has not been damages caused by the minor children
exhausted. To decide the main issue, we must cut through who live with them.
the tangle that has, in the minds of many confused and
jumbled together delitos and cuasi delitos, or crimes under Guardians are liable for damages done by
the Penal Code and fault or negligence under articles 1902- minors or incapacitated persons subject to
1910 of the Civil Code. This should be done, because justice their authority and living with them.
may be lost in a labyrinth, unless principles and remedies
are distinctly envisaged. Fortunately, we are aided in our
Owners or directors of an establishment or
inquiry by the luminous presentation of the perplexing
business are equally liable for any
subject by renown jurists and we are likewise guided by the
damages caused by their employees while
decisions of this Court in previous cases as well as by the
engaged in the branch of the service in
solemn clarity of the consideration in several sentences of
which employed, or on occasion of the
the Supreme Tribunal of Spain.
performance of their duties.
Authorities support the proposition that a quasi-delict or
The State is subject to the same liability
"culpa aquiliana " is a separate legal institution under the
when it acts through a special agent, but
Civil Code with a substantivity all its own, and individuality
not if the damage shall have been caused
that is entirely apart and independent from delict or crime.
by the official upon whom properly
Upon this principle and on the wording and spirit article
devolved the duty of doing the act
1903 of the Civil Code, the primary and direct responsibility
performed, in which case the provisions of
of employers may be safely anchored.
the next preceding article shall be
applicable.
The pertinent provisions of the Civil Code and Revised Penal
Code are as follows:
Finally, teachers or directors of arts trades
are liable for any damages caused by their
CIVIL CODE pupils or apprentices while they are under
their custody.
ART. 1089 Obligations arise from law, from
contracts and quasi-contracts, and from The liability imposed by this article shall
acts and omissions which are unlawful or cease in case the persons mentioned
in which any kind of fault or negligence therein prove that they are exercised all
intervenes. the diligence of a good father of a family to
prevent the damage.
xxx xxx xxx
ART. 1904. Any person who pays for
ART. 1092. Civil obligations arising from damage caused by his employees may
felonies or misdemeanors shall be recover from the latter what he may have
governed by the provisions of the Penal paid.
Code.
REVISED PENAL CODE
ART. 1093. Those which are derived from
acts or omissions in which fault or ART. 100. Civil liability of a person guilty of
negligence, not punishable by law, felony. — Every person criminally liable for
intervenes shall be subject to the a felony is also civilly liable.

ART. 101. Rules regarding civil liability in
certain cases. — The exemption from
criminal liability established
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
4
police regulation shall have been
committed by them or their employees.
in
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."
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However, a closer study shows that such a concurrence of
scope in regard to negligent acts does not destroy the
distinction between the civil liability arising from a crime
and the responsibility for cuasi-delitos or culpa extra-
contractual. The same negligent act causing damages may
produce civil liability arising from a crime under article 100
of the Revised Penal Code, or create an action for cuasi-
delito or culpa extra-contractual under articles 1902-1910
of the Civil Code.
The individuality of cuasi-delito or culpa extra-contractual
looms clear and unmistakable. This legal institution is of
ancient lineage, one of its early ancestors being the Lex
Aquilia in the Roman Law. In fact, in Spanish legal
terminology, this responsibility is often referred to as culpa
aquiliana. The Partidas also contributed to the genealogy of
the present fault or negligence under the Civil Code; for
instance, Law 6, Title 15, of Partida 7, says: "Tenudo es de
fazer emienda, porque, como quier que el non fizo a
sabiendas en daño al otro, pero acaescio por su culpa."
The distinctive nature of cuasi-delitos survives in the Civil
Code. According to article 1089, one of the five sources of
obligations is this legal institution of cuasi-delito or culpa
extra-contractual: "los actos . . . en que intervenga cualquier
genero de culpa o negligencia." Then article 1093 provides
that this kind of obligation shall be governed by Chapter II
of Title XVI of Book IV, meaning articles 1902-0910. This
portion of the Civil Code is exclusively devoted to the legal
institution of culpa aquiliana.
Some of the differences between crimes under the Penal
Code and the culpa aquiliana or cuasi-delito under the Civil
Code are:
1. That crimes affect the public interest, while cuasi-delitos
are only of private concern.
2. That, consequently, the Penal Code punishes or corrects
the criminal act, while the Civil Code, by means of
indemnification, merely repairs the damage.
3. That delicts are not as broad as quasi-delicts, because the
former are punished only if there is a penal law clearly
covering them, while the latter, cuasi-delitos, include all
acts in which "any king of fault or negligence intervenes."
However, it should be noted that not all violations of the
penal law produce civil responsibility, such as begging in
contravention of ordinances, violation of the game laws,
infraction of the rules of traffic when nobody is hurt. (See
Colin and Capitant, "Curso Elemental de Derecho Civil," Vol.
3, p. 728.)
Let us now ascertain what some jurists say on the separate
existence of quasi-delicts and the employer's primary and
direct liability under article 1903 of the Civil Code.
Dorado Montero in his essay on "Responsibilidad" in the
"Enciclopedia Juridica Española" (Vol. XXVII, p. 414) says:
El concepto juridico de la responsabilidad
civil abarca diversos aspectos y
comprende a diferentes personas. Asi,
existe una responsabilidad civil
propiamente dicha, que en ningun casl
lleva aparejada responsabilidad criminal
alguna, y otra que es consecuencia
indeclinable de la penal que nace de todo
delito o falta."
The juridical concept of civil responsibility
has various aspects and comprises
different persons. Thus, there is a civil
responsibility, properly speaking, which in
no case carries with it any criminal
responsibility, and another which is a
necessary consequence of the penal
liability as a result of every felony or
misdemeanor."
Maura, an outstanding authority, was consulted on the
following case: There had been a collision between two
trains belonging respectively to the Ferrocarril Cantabrico
and the Ferrocarril del Norte. An employee of the latter had
been prosecuted in a criminal case, in which the company
had been made a party as subsidiarily responsible in civil
damages. The employee had been acquitted in the criminal
case, and the employer, the Ferrocarril del Norte, had also
been exonerated. The question asked was whether the
Ferrocarril Cantabrico could still bring a civil action for
damages against the Ferrocarril del Norte. Maura's opinion
was in the affirmative, stating in part (Maura, Dictamenes,
Vol. 6, pp. 511-513):
Quedando las cosas asi, a proposito de la
realidad pura y neta de los hechos, todavia
menos parece sostenible que exista cosa
juzgada acerca de la obligacion civil de
indemnizar los quebrantos y menoscabos
inferidos por el choque de los trenes. El
titulo en que se funda la accion para
demandar el resarcimiento, no puede
confundirse con las responsabilidades
civiles nacidas de delito, siquiera exista en
este, sea el cual sea, una culpa rodeada de
notas agravatorias que motivan sanciones
penales, mas o menos severas. La lesion
causada por delito o falta en los derechos
civiles, requiere restituciones,
reparaciones o indemnizaciones, que cual
la pena misma atañen al orden publico;
por tal motivo vienen encomendadas, de
ordinario, al Ministerio Fiscal; y claro es
que si por esta via se enmiendan los
quebrantos y menoscabos, el agraviado
excusa procurar el ya conseguido
desagravio; pero esta eventual
coincidencia de los efectos, no borra la
diversidad originaria de las acciones civiles
para pedir indemnizacion.
Estas, para el caso actual (prescindiendo
de culpas contractuales, que no vendrian a
cuento y que tiene otro regimen),
dimanan, segun el articulo 1902 del Codigo
Civil, de toda accion u omision, causante
de daños o perjuicios, en que intervenga
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culpa o negligencia. Es trivial que acciones
semejantes son ejercitadas ante los
Tribunales de lo civil cotidianamente, sin
que la Justicia punitiva tenga que
mezclarse en los asuntos. Los articulos 18
al 21 y 121 al 128 del Codigo Penal, atentos
al espiritu y a los fines sociales y politicos
del mismo, desenvuelven y ordenan la
materia de responsabilidades civiles
nacidas de delito, en terminos separados
del regimen por ley comun de la culpa que
se denomina aquiliana, por alusion a
precedentes legislativos del Corpus Juris.
Seria intempestivo un paralelo entre
aquellas ordenaciones, y la de la
obligacion de indemnizar a titulo de culpa
civil; pero viene al caso y es necesaria una
de las diferenciaciones que en el tal
paralelo se notarian.
Los articulos 20 y 21 del Codigo Penal,
despues de distribuir a su modo las
responsabilidades civiles, entre los que
sean por diversos conceptos culpables del
delito o falta, las hacen extensivas a las
empresas y los establecimientos al servicio
de los cuales estan los delincuentes; pero
con caracter subsidiario, o sea, segun el
texto literal, en defecto de los que sean
responsables criminalmente. No coincide
en ello el Codigo Civil, cuyo articulo 1903,
dice; La obligacion que impone el articulo
anterior es exigible, no solo por los actos y
omisiones propios, sino por los de aquellas
personas de quienes se debe responder;
personas en la enumeracion de las cuales
figuran los dependientes y empleados de
los establecimientos o empresas, sea por
actos del servicio, sea con ocasion de sus
funciones. Por esto acontece, y se observa
en la jurisprudencia, que las empresas,
despues de intervenir en las causas
criminales con el caracter subsidiario de su
responsabilidad civil por razon del delito,
son demandadas y condenadas directa y
aisladamente, cuando se trata de la
obligacion, ante los tribunales civiles.
Siendo como se ve, diverso el titulo de esta
obligacion, y formando verdadero
postulado de nuestro regimen judicial la
separacion entre justicia punitiva y
tribunales de lo civil, de suerte que tienen
unos y otros normas de fondo en distintos
cuerpos legales, y diferentes modos de
proceder, habiendose, por añadidura,
abstenido de asistir al juicio criminal la
Compañia del Ferrocarril Cantabrico, que
se reservo ejercitar sus acciones, parece
innegable que la de indemnizacion por los
daños y perjuicios que le irrogo el choque,
no estuvo sub judice ante el Tribunal del
Jurado, ni fue sentenciada, sino que
permanecio intacta, al pronunciarse el
fallo de 21 de marzo. Aun cuando el
veredicto no hubiese sido de
inculpabilidad, mostrose mas arriba, que
tal accion quedaba legitimamente
reservada para despues del proceso; pero
al declararse que no existio delito, ni
responsabilidad dimanada de delito,
materia unica sobre que tenian
jurisdiccion aquellos juzgadores, se
redobla el motivo para la obligacion civil ex
lege, y se patentiza mas y mas que la
accion para pedir su cumplimiento
permanece incolume, extraña a la cosa
juzgada.
As things are, apropos of the reality pure
and simple of the facts, it seems less
tenable that there should be res judicata
with regard to the civil obligation for
damages on account of the losses caused
by the collision of the trains. The title upon
which the action for reparation is based
cannot be confused with the civil
responsibilities born of a crime, because
there exists in the latter, whatever each
nature, a culpa surrounded with
aggravating aspects which give rise to
penal measures that are more or less
severe. The injury caused by a felony or
misdemeanor upon civil rights requires
restitutions, reparations, or
indemnifications which, like the penalty
itself, affect public order; for this reason,
they are ordinarily entrusted to the office
of the prosecuting attorney; and it is clear
that if by this means the losses and
damages are repaired, the injured party no
longer desires to seek another relief; but
this coincidence of effects does not
eliminate the peculiar nature of civil
actions to ask for indemnity.
Such civil actions in the present case
(without referring to contractual faults
which are not pertinent and belong to
another scope) are derived, according to
article 1902 of the Civil Code, from every
act or omission causing losses and
damages in which culpa or negligence
intervenes. It is unimportant that such
actions are every day filed before the civil
courts without the criminal courts
interfering therewith. Articles 18 to 21 and
121 to 128 of the Penal Code, bearing in
mind the spirit and the social and political
purposes of that Code, develop and
regulate the matter of civil responsibilities
arising from a crime, separately from the
regime under common law, of culpa which
is known as aquiliana, in accordance with
legislative precedent of the Corpus Juris. It
would be unwarranted to make a detailed
comparison between the former
provisions and that regarding the
 7
obligation to indemnify on account of civil
culpa; but it is pertinent and necessary to
point out to one of such differences.
Articles 20 and 21 of the Penal Code, after
distriburing in their own way the civil
responsibilities among those who, for
different reasons, are guilty of felony or
misdemeanor, make such civil
responsibilities applicable to enterprises
and establishments for which the guilty
parties render service, but with subsidiary
character, that is to say, according to the
wording of the Penal Code, in default of
those who are criminally responsible. In
this regard, the Civil Code does not
coincide because article 1903 says: "The
obligation imposed by the next preceding
article is demandable, not only for
personal acts and omissions, but also for
those of persons for whom another is
responsible." Among the persons
enumerated are the subordinates and
employees of establishments or
enterprises, either for acts during their
service or on the occasion of their
functions. It is for this reason that it
happens, and it is so observed in judicial
decisions, that the companies or
enterprises, after taking part in the
criminal cases because of their subsidiary
civil responsibility by reason of the crime,
are sued and sentenced directly and
separately with regard to the obligation,
before the civil courts.
Seeing that the title of this obligation is
different, and the separation between
punitive justice and the civil courts being a
true postulate of our judicial system, so
that they have different fundamental
norms in different codes, as well as
different modes of procedure, and
inasmuch as the Compaña del Ferrocarril
Cantabrico has abstained from taking part
in the criminal case and has reserved the
right to exercise its actions, it seems
undeniable that the action for
indemnification for the losses and
damages caused to it by the collision was
not sub judice before the Tribunal del
Jurado, nor was it the subject of a
sentence, but it remained intact when the
decision of March 21 was rendered. Even
if the verdict had not been that of
acquittal, it has already been shown that
such action had been legitimately reserved
till after the criminal prosecution; but
because of the declaration of the non-
existence of the felony and the non-
existence of the responsibility arising from
the crime, which was the sole subject
matter upon which the Tribunal del Jurado
had jurisdiction, there is greater reason for
the civil obligation ex lege, and it becomes
clearer that the action for its enforcement
remain intact and is not res judicata.
Laurent, a jurist who has written a monumental work on the
French Civil Code, on which the Spanish Civil Code is largely
based and whose provisions on cuasi-delito or culpa extra-
contractual are similar to those of the Spanish Civil Code,
says, referring to article 1384 of the French Civil Code which
corresponds to article 1903, Spanish Civil Code:
The action can be brought directly against
the person responsible (for another),
without including the author of the act.
The action against the principal is
accessory in the sense that it implies the
existence of a prejudicial act committed by
the employee, but it is not subsidiary in the
sense that it can not be instituted till after
the judgment against the author of the act
or at least, that it is subsidiary to the
principal action; the action for
responsibility (of the employer) is in itself
a principal action. (Laurent, Principles of
French Civil Law, Spanish translation, Vol.
20, pp. 734-735.)
Amandi, in his "Cuestionario del Codigo Civil Reformado"
(Vol. 4, pp. 429, 430), declares that the responsibility of the
employer is principal and not subsidiary. He writes:
Cuestion 1. La responsabilidad declarada
en el articulo 1903 por las acciones u
omisiones de aquellas personas por las
que se debe responder, es subsidiaria? es
principal? Para contestar a esta pregunta
es necesario saber, en primer lugar, en que
se funda el precepto legal. Es que
realmente se impone una responsabilidad
por una falta ajena? Asi parece a primera
vista; pero semejante afirmacion seria
contraria a la justicia y a la maxima
universal, segun la que las faltas son
personales, y cada uno responde de
aquellas que le son imputables. La
responsabilidad de que tratamos se
impone con ocasion de un delito o culpa,
pero no por causa de ellos, sino por causa
del causi delito, esto es, de la imprudencia
o de la negligencia del padre, del tutor, del
dueño o director del establecimiento, del
maestro, etc. Cuando cualquiera de las
personas que enumera el articulo citado
(menores de edad, incapacitados,
dependientes, aprendices) causan un
daño, la ley presume que el padre, el tutor,
el maestro, etc., han cometido una falta de
negligencia para prevenir o evitar el daño.
Esta falta es la que la ley castiga. No hay,
pues, responsabilidad por un hecho ajeno,
sino en la apariencia; en realidad la
responsabilidad se exige por un hecho
propio. La idea de que esa responsabilidad
 8
sea subsidiaria es, por lo tanto,
completamente inadmisible.
Question No. 1. Is the responsibility
declared in article 1903 for the acts or
omissions of those persons for who one is
responsible, subsidiary or principal? In
order to answer this question it is
necessary to know, in the first place, on
what the legal provision is based. Is it true
that there is a responsibility for the fault of
another person? It seems so at first sight;
but such assertion would be contrary to
justice and to the universal maxim that all
faults are personal, and that everyone is
liable for those faults that can be imputed
to him. The responsibility in question is
imposed on the occasion of a crime or
fault, but not because of the same, but
because of the cuasi-delito, that is to say,
the imprudence or negligence of the
father, guardian, proprietor or manager of
the establishment, of the teacher, etc.
Whenever anyone of the persons
enumerated in the article referred to
(minors, incapacitated persons,
employees, apprentices) causes any
damage, the law presumes that the father,
guardian, teacher, etc. have committed an
act of negligence in not preventing or
avoiding the damage. It is this fault that is
condemned by the law. It is, therefore,
only apparent that there is a responsibility
for the act of another; in reality the
responsibility exacted is for one's own act.
The idea that such responsibility is
subsidiary is, therefore, completely
inadmissible.
Oyuelos, in his "Digesto: Principios, Doctrina y
Jurisprudencia, Referentes al Codigo Civil Español," says in
Vol. VII, p. 743:
Es decir, no responde de hechos ajenos,
porque se responde solo de su propia
culpa, doctrina del articulo 1902; mas por
excepcion, se responde de la ajena
respecto de aquellas personas con las que
media algun nexo o vinculo, que motiva o
razona la responsabilidad. Esta
responsabilidad, es directa o es
subsidiaria? En el orden penal, el Codigo
de esta clase distingue entre menores e
incapacitados y los demas, declarando
directa la primera (articulo 19) y
subsidiaria la segunda (articulos 20 y 21);
pero en el orden civil, en el caso del
articulo 1903, ha de entenderse directa,
por el tenor del articulo que impone la
responsabilidad precisamente "por los
actos de aquellas personas de quienes se
deba responder."
That is to say, one is not responsible for
the acts of others, because one is liable
only for his own faults, this being the
doctrine of article 1902; but, by exception,
one is liable for the acts of those persons
with whom there is a bond or tie which
gives rise to the responsibility. Is this
responsibility direct or subsidiary? In the
order of the penal law, the Penal Code
distinguishes between minors and
incapacitated persons on the one hand,
and other persons on the other, declaring
that the responsibility for the former is
direct (article 19), and for the latter,
subsidiary (articles 20 and 21); but in the
scheme of the civil law, in the case of
article 1903, the responsibility should be
understood as direct, according to the
tenor of that articles, for precisely it
imposes responsibility "for the acts of
those persons for whom one should be
responsible."
Coming now to the sentences of the Supreme Tribunal of
Spain, that court has upheld the principles above set forth:
that a quasi-delict or culpa extra-contractual is a separate
and distinct legal institution, independent from the civil
responsibility arising from criminal liability, and that an
employer is, under article 1903 of the Civil Code, primarily
and directly responsible for the negligent acts of his
employee.
One of the most important of those Spanish decisions is that
of October 21, 1910. In that case, Ramon Lafuente died as
the result of having been run over by a street car owned by
the "compañia Electric Madrileña de Traccion." The
conductor was prosecuted in a criminal case but he was
acquitted. Thereupon, the widow filed a civil action against
the street car company, paying for damages in the amount
of 15,000 pesetas. The lower court awarded damages; so
the company appealed to the Supreme Tribunal, alleging
violation of articles 1902 and 1903 of the Civil Code because
by final judgment the non-existence of fault or negligence
had been declared. The Supreme Court of Spain dismissed
the appeal, saying:
Considerando que el primer motivo del
recurso se funda en el equivocado
supuesto de que el Tribunal a quo, al
condonar a la compañia Electrica
Madrileña al pago del daño causado con la
muerte de Ramon La fuente Izquierdo,
desconoce el valor y efectos juridicos de la
sentencia absolutoria deictada en la causa
criminal que se siguio por el mismo hecho,
cuando es lo cierto que de este han
conocido las dos jurisdicciones bajo
diferentes as pectos, y como la de lo
criminal declrao dentro de los limites de su
competencia que el hecho de que se trata
no era constitutivo de delito por no haber
mediado descuido o negligencia graves, lo
que no excluye, siendo este el unico
fundamento del fallo absolutorio, el
 9
concurso de la culpa o negligencia no
califacadas, fuente de obligaciones civiles
segun el articulo 1902 del Codigo, y que
alcanzan, segun el 1903, netre otras
perosnas, a los Directores de
establecimientos o empresas por los
daños causados por sus dependientes en
determinadas condiciones, es manifesto
que la de lo civil, al conocer del mismo
hehco baho este ultimo aspecto y al
condenar a la compañia recurrente a la
indemnizacion del daño causado por uno
de sus empleados, lejos de infringer los
mencionados textos, en relacion con el
articulo 116 de la Ley de Enjuciamiento
Criminal, se ha atenido estrictamente a
ellos, sin invadir atribuciones ajenas a su
jurisdiccion propia, ni contrariar en lo mas
minimo el fallo recaido en la causa.
Considering that the first ground of the
appeal is based on the mistaken
supposition that the trial court, in
sentencing the Compañia Madrileña to the
payment of the damage caused by the
death of Ramon Lafuente Izquierdo,
disregards the value and juridical effects of
the sentence of acquittal rendered in the
criminal case instituted on account of the
same act, when it is a fact that the two
jurisdictions had taken cognizance of the
same act in its different aspects, and as the
criminal jurisdiction declared within the
limits of its authority that the act in
question did not constitute a felony
because there was no grave carelessness
or negligence, and this being the only basis
of acquittal, it does no exclude the co-
existence of fault or negligence which is
not qualified, and is a source of civil
obligations according to article 1902 of the
Civil Code, affecting, in accordance with
article 1903, among other persons, the
managers of establishments or enterprises
by reason of the damages caused by
employees under certain conditions, it is
manifest that the civil jurisdiccion in taking
cognizance of the same act in this latter
aspect and in ordering the company,
appellant herein, to pay an indemnity for
the damage caused by one of its
employees, far from violating said legal
provisions, in relation with article 116 of
the Law of Criminal Procedure, strictly
followed the same, without invading
attributes which are beyond its own
jurisdiction, and without in any way
contradicting the decision in that cause.
(Emphasis supplied.)
It will be noted, as to the case just cited:
First. That the conductor was not sued in a civil case, either
separately or with the street car company. This is precisely
what happens in the present case: the driver, Fontanilla, has
not been sued in a civil action, either alone or with his
employer.
Second. That the conductor had been acquitted of grave
criminal negligence, but the Supreme Tribunal of Spain said
that this did not exclude the co-existence of fault or
negligence, which is not qualified, on the part of the
conductor, under article 1902 of the Civil Code. In the
present case, the taxi driver was found guilty of criminal
negligence, so that if he had even sued for his civil
responsibility arising from the crime, he would have been
held primarily liable for civil damages, and Barredo would
have been held subsidiarily liable for the same. But the
plaintiffs are directly suing Barredo, on his primary
responsibility because of his own presumed negligence —
which he did not overcome — under article 1903. Thus,
there were two liabilities of Barredo: first, the subsidiary
one because of the civil liability of the taxi driver arising
from the latter's criminal negligence; and, second,
Barredo's primary liability as an employer under article
1903. The plaintiffs were free to choose which course to
take, and they preferred the second remedy. In so doing,
they were acting within their rights. It might be observed in
passing, that the plaintiff choose the more expeditious and
effective method of relief, because Fontanilla was either in
prison, or had just been released, and besides, he was
probably without property which might be seized in
enforcing any judgment against him for damages.
Third. That inasmuch as in the above sentence of October
21, 1910, the employer was held liable civilly,
notwithstanding the acquittal of the employee (the
conductor) in a previous criminal case, with greater reason
should Barredo, the employer in the case at bar, be held
liable for damages in a civil suit filed against him because his
taxi driver had been convicted. The degree of negligence of
the conductor in the Spanish case cited was less than that
of the taxi driver, Fontanilla, because the former was
acquitted in the previous criminal case while the latter was
found guilty of criminal negligence and was sentenced to an
indeterminate sentence of one year and one day to two
years of prision correccional.
(See also Sentence of February 19, 1902, which is similar to
the one above quoted.)
In the Sentence of the Supreme Court of Spain, dated
February 14, 1919, an action was brought against a railroad
company for damages because the station agent, employed
by the company, had unjustly and fraudulently, refused to
deliver certain articles consigned to the plaintiff. The
Supreme Court of Spain held that this action was properly
under article 1902 of the Civil Code, the court saying:
Considerando que la sentencia discutida
reconoce, en virtud de los hechos que
consigna con relacion a las pruebas del
pleito: 1.º, que las expediciones facturadas
por la compañia ferroviaria a la
consignacion del actor de las vasijas vacias
que en su demanda relacionan tenian
como fin el que este las devolviera a sus
remitentes con vinos y alcoholes; 2.º, que
 10
llegadas a su destino tales mercanias no se
quisieron entregar a dicho consignatario
por el jefe de la estacion sin motivo
justificado y con intencion dolosa, y 3.º,
que la falta de entrega de estas
expediciones al tiempo de reclamarlas el
demandante le originaron daños y
perjuicios en cantidad de bastante
importancia como expendedor al por
mayor que era de vinos y alcoholes por las
ganancias que dejo de obtener al verse
privado de servir los pedidos que se le
habian hecho por los remitentes en los
envases:
Considerando que sobre esta base hay
necesidad de estimar los cuatro motivos
que integran este recurso, porque la
demanda inicial del pleito a que se contrae
no contiene accion que nazca del
incumplimiento del contrato de
transporte, toda vez que no se funda en el
retraso de la llegada de las mercancias ni
de ningun otro vinculo contractual entre
las partes contendientes, careciendo, por
tanto, de aplicacion el articulo 371 del
Codigo de Comercio, en que
principalmente descansa el fallo recurrido,
sino que se limita a pedir la reparaction de
los daños y perjuicios producidos en el
patrimonio del actor por la injustificada y
dolosa negativa del porteador a la entrega
de las mercancias a su nombre
consignadas, segun lo reconoce la
sentencia, y cuya responsabilidad esta
claramente sancionada en el articulo 1902
del Codigo Civil, que obliga por el siguiente
a la Compañia demandada como ligada
con el causante de aquellos por relaciones
de caracter economico y de jurarquia
administrativa.
Considering that the sentence, in question
recognizes, in virtue of the facts which it
declares, in relation to the evidence in the
case: (1) that the invoice issued by the
railroad company in favor of the plaintiff
contemplated that the empty receptacles
referred to in the complaint should be
returned to the consignors with wines and
liquors; (2) that when the said
merchandise reached their destination,
their delivery to the consignee was refused
by the station agent without justification
and with fraudulent intent, and (3) that the
lack of delivery of these goods when they
were demanded by the plaintiff caused
him losses and damages of considerable
importance, as he was a wholesale vendor
of wines and liquors and he failed to
realize the profits when he was unable to
fill the orders sent to him by the
consignors of the receptacles:
Considering that upon this basis there is
need of upholding the four assignments of
error, as the original complaint did not
contain any cause of action arising from
non-fulfillment of a contract of
transportation, because the action was
not based on the delay of the goods nor on
any contractual relation between the
parties litigant and, therefore, article 371
of the Code of Commerce, on which the
decision appealed from is based, is not
applicable; but it limits to asking for
reparation for losses and damages
produced on the patrimony of the plaintiff
on account of the unjustified and
fraudulent refusal of the carrier to deliver
the goods consigned to the plaintiff as
stated by the sentence, and the carrier's
responsibility is clearly laid down in article
1902 of the Civil Code which binds, in
virtue of the next article, the defendant
company, because the latter is connected
with the person who caused the damage
by relations of economic character and by
administrative hierarchy. (Emphasis
supplied.)
The above case is pertinent because it shows that the same
act may come under both the Penal Code and the Civil Code.
In that case, the action of the agent was unjustified and
fraudulent and therefore could have been the subject of a
criminal action. And yet, it was held to be also a proper
subject of a civil action under article 1902 of the Civil Code.
It is also to be noted that it was the employer and not the
employee who was being sued.
Let us now examine the cases previously decided by this
Court.
In the leading case of Rakes vs. Atlantic Gulf and Pacific Co.
(7 Phil., 359, 362-365 [year 1907]), the trial court awarded
damages to the plaintiff, a laborer of the defendant,
because the latter had negligently failed to repair a
tramway in consequence of which the rails slid off while
iron was being transported, and caught the plaintiff whose
leg was broken. This Court held:
It is contended by the defendant, as its
first defense to the action that the
necessary conclusion from these collated
laws is that the remedy for injuries
through negligence lies only in a criminal
action in which the official criminally
responsible must be made primarily liable
and his employer held only subsidiarily to
him. According to this theory the plaintiff
should have procured the arrest of the
representative of the company
accountable for not repairing the track,
and on his prosecution a suitable fine
should have been imposed, payable
primarily by him and secondarily by his
employer.
 11
This reasoning misconceived the plan of
the Spanish codes upon this subject.
Article 1093 of the Civil Code makes
obligations arising from faults or
negligence not punished by the law,
subject to the provisions of Chapter II of
Title XVI. Section 1902 of that chapter
reads:
"A person who by an act or
omission causes damage to
another when there is fault or
negligence shall be obliged to
repair the damage so done.
"SEC. 1903. The obligation
imposed by the preceeding article
is demandable, not only for
personal acts and omissions, but
also for those of the persons for
whom they should be
responsible.
"The father, and on his death or
incapacity, the mother, is liable
for the damages caused by the
minors who live with them.
xxx xxx xxx
"Owners or directors of an
establishment or enterprise are
equally liable for the damages
caused by their employees in the
service of the branches in which
the latter may be employed or in
the performance of their duties.
xxx xxx xxx
"The liability referred to in this
article shall cease when the
persons mentioned therein prove
that they employed all the
diligence of a good father of a
family to avoid the damage."
As an answer to the argument urged in this
particular action it may be sufficient to
point out that nowhere in our general
statutes is the employer penalized for
failure to provide or maintain safe
appliances for his workmen. His obligation
therefore is one 'not punished by the laws'
and falls under civil rather than criminal
jurisprudence. But the answer may be a
broader one. We should be reluctant,
under any conditions, to adopt a forced
construction of these scientific codes, such
as is proposed by the defendant, that
would rob some of these articles of effect,
would shut out litigants against their will
from the civil courts, would make the
assertion of their rights dependent upon
the selection for prosecution of the proper
criminal offender, and render recovery
doubtful by reason of the strict rules of
proof prevailing in criminal actions. Even if
these articles had always stood alone, such
a construction would be unnecessary, but
clear light is thrown upon their meaning by
the provisions of the Law of Criminal
Procedure of Spain (Ley de Enjuiciamiento
Criminal), which, though never in actual
force in these Islands, was formerly given
a suppletory or explanatory effect. Under
article 111 of this law, both classes of
action, civil and criminal, might be
prosecuted jointly or separately, but while
the penal action was pending the civil was
suspended. According to article 112, the
penal action once started, the civil remedy
should be sought therewith, unless it had
been waived by the party injured or been
expressly reserved by him for civil
proceedings for the future. If the civil
action alone was prosecuted, arising out of
a crime that could be enforced only on
private complaint, the penal action
thereunder should be extinguished. These
provisions are in harmony with those of
articles 23 and 133 of our Penal Code on
the same subject.
An examination of this topic might be
carried much further, but the citation of
these articles suffices to show that the civil
liability was not intended to be merged in
the criminal nor even to be suspended
thereby, except as expressly provided in
the law. Where an individual is civilly liable
for a negligent act or omission, it is not
required that the injured party should seek
out a third person criminally liable whose
prosecution must be a condition
precedent to the enforcement of the civil
right.
Under article 20 of the Penal Code the
responsibility of an employer may be
regarded as subsidiary in respect of
criminal actions against his employees
only while they are in process of
prosecution, or in so far as they determine
the existence of the criminal act from
which liability arises, and his obligation
under the civil law and its enforcement in
the civil courts is not barred thereby unless
by the election of the injured person.
Inasmuch as no criminal proceeding had
been instituted, growing our of the
accident in question, the provisions of the
Penal Code can not affect this action. This
construction renders it unnecessary to
finally determine here whether this
subsidiary civil liability in penal actions has
survived the laws that fully regulated it or
 12
has been abrogated by the American civil
and criminal procedure now in force in the
Philippines.
The difficulty in construing the articles of
the code above cited in this case appears
from the briefs before us to have arisen
from the interpretation of the words of
article 1093, "fault or negligence not
punished by law," as applied to the
comprehensive definition of offenses in
articles 568 and 590 of the Penal Code. It
has been shown that the liability of an
employer arising out of his relation to his
employee who is the offender is not to be
regarded as derived from negligence
punished by the law, within the meaning
of articles 1902 and 1093. More than this,
however, it cannot be said to fall within
the class of acts unpunished by the law,
the consequence of which are regulated
by articles 1902 and 1903 of the Civil Code.
The acts to which these articles are
applicable are understood to be those not
growing out of pre-existing duties of the
parties to one another. But where
relations already formed give rise to
duties, whether springing from contract or
quasi contract, then breaches of those
duties are subject to articles 1101, 1103,
and 1104 of the same code. A typical
application of this distinction may be
found in the consequences of a railway
accident due to defective machinery
supplied by the employer. His liability to
his employee would arise out of the
contract of employment that to the
passengers out of the contract for
passage, while that to the injured
bystander would originate in the negligent
act itself.
In Manzanares vs. Moreta, 38 Phil., 821 (year 1918), the
mother of the 8 of 9-year-old child Salvador Bona brought a
civil action against Moreta to recover damages resulting
from the death of the child, who had been run over by an
automobile driven and managed by the defendant. The trial
court rendered judgment requiring the defendant to pay
the plaintiff the sum of P1,000 as indemnity: This Court in
affirming the judgment, said in part:
If it were true that the defendant, in
coming from the southern part of Solana
Street, had to stop his auto before crossing
Real Street, because he had met vehicles
which were going along the latter street or
were coming from the opposite direction
along Solana Street, it is to be believed
that, when he again started to run his auto
across said Real Street and to continue its
way along Solana Street northward, he
should have adjusted the speed of the
auto which he was operating until he had
fully crossed Real Street and had
completely reached a clear way on Solana
Street. But, as the child was run over by
the auto precisely at the entrance of
Solana Street, this accident could not have
occurred if the auto had been running at a
slow speed, aside from the fact that the
defendant, at the moment of crossing Real
Street and entering Solana Street, in a
northward direction, could have seen the
child in the act of crossing the latter street
from the sidewalk on the right to that on
the left, and if the accident had occurred
in such a way that after the automobile
had run over the body of the child, and the
child's body had already been stretched
out on the ground, the automobile still
moved along a distance of about 2 meters,
this circumstance shows the fact that the
automobile entered Solana Street from
Real Street, at a high speed without the
defendant having blown the horn. If these
precautions had been taken by the
defendant, the deplorable accident which
caused the death of the child would not
have occurred.
It will be noticed that the defendant in the above case could
have been prosecuted in a criminal case because his
negligence causing the death of the child was punishable by
the Penal Code. Here is therefore a clear instance of the
same act of negligence being a proper subject-matter either
of a criminal action with its consequent civil liability arising
from a crime or of an entirely separate and independent
civil action for fault or negligence under article 1902 of the
Civil Code. Thus, in this jurisdiction, the separate
individually of a cuasi-delito or culpa aquiliana under the
Civil Code has been fully and clearly recognized, even with
regard to a negligent act for which the wrongdoer could
have been prosecuted and convicted in a criminal case and
for which, after such a conviction, he could have been sued
for this civil liability arising from his crime.
Years later (in 1930) this Court had another occasion to
apply the same doctrine. In Bernal and Enverso vs. House
and Tacloban Electric & Ice Plant, Ltd., 54 Phil., 327, the
parents of the five-year-old child, Purificacion Bernal,
brought a civil action to recover damages for the child's
death as a result of burns caused by the fault and negligence
of the defendants. On the evening of April 10, 1925, the
Good Friday procession was held in Tacloban, Leyte.
Fortunata Enverso with her daughter Purificacion Bernal
had come from another municipality to attend the same.
After the procession the mother and the daughter with two
others were passing along Gran Capitan Street in front of
the offices of the Tacloban Electric & Ice Plant, Ltd., owned
by defendants J. V. House, when an automobile appeared
from the opposite direction. The little girl, who was slightly
ahead of the rest, was so frightened by the automobile that
she turned to run, but unfortunately she fell into the street
gutter where hot water from the electric plant was flowing.
The child died that same night from the burns. The trial
courts dismissed the action because of the contributory
negligence of the plaintiffs. But this Court held, on appeal,
that there was no contributory negligence, and allowed the
 13
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
 14
damages brought by Cuison for the death of his seven-year-
old son Moises. The little boy was on his way to school with
his sister Marciana. Some large pieces of lumber fell from a
truck and pinned the boy underneath, instantly killing him.
Two youths, Telesforo Binoya and Francisco Bautista, who
were working for Ora, an employee of defendant Norton &
Harrison Co., pleaded guilty to the crime of homicide
through reckless negligence and were sentenced
accordingly. This Court, applying articles 1902 and 1903,
held:
The basis of civil law liability is not
respondent superior but the relationship
of pater familias. This theory bases the
liability of the master ultimately on his
own negligence and not on that of his
servant. (Bahia vs. Litonjua and Leynes
[1915], 30 Phil., 624; Cangco vs. Manila
Railroad Co. [1918], 38 Phil., 768.)
In Walter A. Smith & Co. vs. Cadwallader Gibson Lumber
Co., 55 Phil., 517 (year 1930) the plaintiff brought an action
for damages for the demolition of its wharf, which had been
struck by the steamer Helen C belonging to the defendant.
This Court held (p. 526):
The evidence shows that Captain Lasa at
the time the plaintiff's wharf collapsed was
a duly licensed captain, authorized to
navigate and direct a vessel of any
tonnage, and that the appellee contracted
his services because of his reputation as a
captain, according to F. C. Cadwallader.
This being so, we are of the opinion that
the presumption of liability against the
defendant has been overcome by the
exercise of the care and diligence of a good
father of a family in selecting Captain Lasa,
in accordance with the doctrines laid down
by this court in the cases cited above, and
the defendant is therefore absolved from
all liability.
It is, therefore, seen that the defendant's theory about his
secondary liability is negatived by the six cases above set
forth. He is, on the authority of these cases, primarily and
directly responsible in damages under article 1903, in
relation to article 1902, of the Civil Code.
Let us now take up the Philippine decisions relied upon by
the defendant. We study first, City of Manila vs. Manila
Electric Co., 52 Phil., 586 (year 1928). A collision between a
truck of the City of Manila and a street car of the Manila
Electric Co. took place on June 8, 1925. The truck was
damaged in the amount of P1,788.27. Sixto Eustaquio, the
motorman, was prosecuted for the crime of damage to
property and slight injuries through reckless imprudence.
He was found guilty and sentenced to pay a fine of P900, to
indemnify the City of Manila for P1,788.27, with subsidiary
imprisonment in case of insolvency. Unable to collect the
indemnity from Eustaquio, the City of Manila filed an action
against the Manila Electric Company to obtain payment,
claiming that the defendant was subsidiarily liable. The
main defense was that the defendant had exercised the
diligence of a good father of a family to prevent the
damage. The lower court rendered judgment in favor of the
plaintiff. This Court held, in part, that this case was
governed by the Penal Code, saying:
With this preliminary point out of the way,
there is no escaping the conclusion that
the provisions of the Penal Code govern.
The Penal Code in easily understandable
language authorizes the determination of
subsidiary liability. The Civil Code
negatives its application by providing that
civil obligations arising from crimes or
misdemeanors shall be governed by the
provisions of the Penal Code. The
conviction of the motorman was a
misdemeanor falling under article 604 of
the Penal Code. The act of the motorman
was not a wrongful or negligent act or
omission not punishable by law.
Accordingly, the civil obligation connected
up with the Penal Code and not with article
1903 of the Civil Code. In other words, the
Penal Code affirms its jurisdiction while
the Civil Code negatives its jurisdiction.
This is a case of criminal negligence out of
which civil liability arises and not a case of
civil negligence.
xxx xxx xxx
Our deduction, therefore, is that the case
relates to the Penal Code and not to the
Civil Code. Indeed, as pointed out by the
trial judge, any different ruling would
permit the master to escape scot-free by
simply alleging and proving that the
master had exercised all diligence in the
selection and training of its servants to
prevent the damage. That would be a good
defense to a strictly civil action, but might
or might not be to a civil action either as a
part of or predicated on conviction for a
crime or misdemeanor. (By way of
parenthesis, it may be said further that the
statements here made are offered to meet
the argument advanced during our
deliberations to the effect that article
0902 of the Civil Code should be
disregarded and codal articles 1093 and
1903 applied.)
It is not clear how the above case could support the
defendant's proposition, because the Court of Appeals
based its decision in the present case on the defendant's
primary responsibility under article 1903 of the Civil Code
and not on his subsidiary liability arising from Fontanilla's
criminal negligence. In other words, the case of City of
Manila vs. Manila Electric Co., supra, is predicated on an
entirely different theory, which is the subsidiary liability of
an employer arising from a criminal act of his employee,
whereas the foundation of the decision of the Court of
Appeals in the present case is the employer's primary
 15
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
 16

employers who principally reap the profits resulting from

the services of these servants and employees. It is but right
that they should guarantee the latter's careful conduct for
the personnel and patrimonial safety of others. As Theilhard
has said, "they should reproach themselves, at least, some
for their weakness, others for their poor selection and all
for their negligence." And according to Manresa, "It is much
more equitable and just that such responsibility should fall
upon the principal or director who could have chosen a
careful and prudent employee, and not upon the injured
person who could not exercise such selection and who used
such employee because of his confidence in the principal or
director." (Vol. 12, p. 622, 2nd Ed.) Many jurists also base
this primary responsibility of the employer on the principle
of representation of the principal by the agent. Thus,
Oyuelos says in the work already cited (Vol. 7, p. 747) that
before third persons the employer and employee "vienen a
ser como una sola personalidad, por refundicion de la del
dependiente en la de quien le emplea y utiliza." ("become
as one personality by the merging of the person of the
employee in that of him who employs and utilizes him.") All
these observations acquire a peculiar force and significance
when it comes to motor accidents, and there is need of
stressing and accentuating the responsibility of owners of
motor vehicles.

Fourthly, because of the broad sweep of the provisions of

both the Penal Code and the Civil Code on this subject,
which has given rise to the overlapping or concurrence of
spheres already discussed, and for lack of understanding of
the character and efficacy of the action for culpa aquiliana,
there has grown up a common practice to seek damages
only by virtue of the civil responsibility arising from a crime,
forgetting that there is another remedy, which is by
invoking articles 1902-1910 of the Civil Code. Although this
habitual method is allowed by our laws, it has nevertheless
rendered practically useless and nugatory the more
expeditious and effective remedy based on culpa aquiliana
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 G.R. No. 108017 April 3, 1995
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 MARIA BENITA A. DULAY, in her own behalf and in behalf
quasi-delict or culpa aquiliana to flow on its own natural of the minor children KRIZTEEN ELIZABETH, BEVERLY
channel, so that its waters may no longer be diverted into MARIE and NAPOLEON II, all surnamed DULAY,
that of a crime under the Penal Code. This will, it is believed, petitioners,
make for the better safeguarding of private rights because vs.
it re-establishes an ancient and additional remedy, and for THE COURT OF APPEALS, Former Eighth Division, HON.
the further reason that an independent civil action, not TEODORO P. REGINO, in his capacity as Presiding Judge of
depending on the issues, limitations and results of a the Regional Trial Court National Capital Region, Quezon
criminal prosecution, and entirely directed by the party City, Br. 84, SAFEGUARD INVESTIGATION AND SECURITY
wronged or his counsel, is more likely to secure adequate CO., INC., and SUPERGUARD SECURITY CORPORATION,
and efficacious redress. respondents.

In view of the foregoing, the judgment of the Court of BIDIN, J.:

Appeals should be and is hereby affirmed, with costs against
the defendant-petitioner.
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.
 17
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.
 18
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.
 19
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.
 20
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.
QUASI DELICT AND CONTRACT
G.R. No. L-21438 September 28, 1966
AIR FRANCE, petitioner,
vs.
RAFAEL CARRASCOSO and the HONORABLE COURT OF
APPEALS, respondents.
SANCHEZ, J.:
 21
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?
 22
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
 23
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
 24
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
 25
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
 26

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. L-48930 February 23, 1944
ANTONIO VAZQUEZ, petitioner,
vs.
FRANCISCO DE BORJA, respondent.
x---------------------------------------------------------x
G.R. No. L-48931 February 23, 1944
FRANCISCO DE BORJA, petitioner,
vs.
ANTONIO VAZQUEZ, respondent.
OZAETA, J.:
This action was commenced in the Court of First Instance of
Manila by Francisco de Borja against Antonio Vazquez and
Fernando Busuego to recover from them jointly and
severally the total sum of P4,702.70 upon three alleged
causes of action, to wit: First, that in or about the month of
January, 1932, the defendants jointly and severally
obligated themselves to sell to the plaintiff 4,000 cavans of
palay at P2.10 per cavan, to be delivered during the month
of February, 1932, the said defendants having subsequently
received from the plaintiff in virtue of said agreement the
sum of P8,400; that the defendants delivered to the plaintiff
during the months of February, March, and April, 1932, only
2,488 cavans of palay of the value of P5,224.80 and refused
to deliver the balance of 1,512 cavans of the value of
P3,175.20 notwithstanding repeated demands. Second,
that because of defendants' refusal to deliver to the plaintiff
the said 1,512 cavans of palay within the period above
mentioned, the plaintiff suffered damages in the sum of
P1,000. And, third, that on account of the agreement above
mentioned the plaintiff delivered to the defendants 4,000
empty sacks, of which they returned to the plaintiff only
2,490 and refused to deliver to the plaintiff the balance of
1,510 sacks or to pay their value amounting to P377.50; and
that on account of such refusal the plaintiff suffered
damages in the sum of P150.
 27
The defendant Antonio Vazquez answered the complaint,
denying having entered into the contract mentioned in the
first cause of action in his own individual and personal
capacity, either solely or together with his codefendant
Fernando Busuego, and alleging that the agreement for the
purchase of 4,000 cavans of palay and the payment of the
price of P8,400 were made by the plaintiff with and to the
Natividad-Vasquez Sabani Development Co., Inc., a
corporation organized and existing under the laws of the
Philippines, of which the defendant Antonio Vazquez was
the acting manager at the time the transaction took place.
By way of counterclaim, the said defendant alleged that he
suffered damages in the sum of P1,000 on account of the
filing of this action against him by the plaintiff with full
knowledge that the said defendant had nothing to do
whatever with any and all of the transactions mentioned in
the complaint in his own individual and personal capacity.
The trial court rendered judgment ordering the defendant
Antonio Vazquez to pay to the plaintiff the sum of P3,175.20
plus the sum of P377.50, with legal interest on both sums,
and absolving the defendant Fernando Busuego (treasurer
of the corporation) from the complaint and the plaintiff
from the defendant Antonio Vazquez' counterclaim. Upon
appeal to the Court of Appeals, the latter modified that
judgment by reducing it to the total sum of P3,314.78, with
legal interest thereon and the costs. But by a subsequent
resolution upon the defendant's motion for
reconsideration, the Court of Appeals set aside its judgment
and ordered that the case be remanded to the court of
origin for further proceedings. The defendant Vazquez, not
being agreeable to that result, filed the present petition for
certiorari (G.R. No. 48930) to review and reverse the
judgment of the Court of Appeals; and the plaintiff
Francisco de Borja, excepting to the resolution of the Court
of Appeals whereby its original judgment was set aside and
the case was ordered remanded to the court of origin for
further proceedings, filed a cross-petition for certiorari
(G.R. No. 48931) to maintain the original judgment of the
Court of Appeals.
The original decision of the Court of Appeals and its
subsequent resolutions on reconsideration read as follows:
Es hecho no controvertido que el 25 de Febrero de
1932, el demandado-apelante vendio al
demandante 4,000 cavanes de palay al precio de
P2.10 el cavan, de los cuales, dicho demandante
solamente recibio 2,583 cavanes; y que asimismo
recibio para su envase 4,000 sacos vacios. Esta
provbado que de dichos 4,000 sacos vacios
solamente se entregaron, 2,583 quedando en
poder del demandado el resto, y cuyo valor es el de
P0.24 cada uno. Presentada la demanda contra los
demandados Antonio Vazquez y Fernando Busuego
para el pago de la cantidad de P4,702.70, con sus
intereses legales desde el 1.o de marzo de 1932
hasta su completo pago y las costas, el Juzgado de
Primera Instancia de Manila el asunto condenando
a Antonio Vazquez a pagar al demandante la
cantidad de P3,175.20, mas la cantidad de P377.50,
con sus intereses legales, absolviendo al
demandado Fernando Busuego de la demanda y al
demandante de la reconvencion de los
demandados, sin especial pronunciamiento en
cuanto a las costas. De dicha decision apelo el
demandado Antonio Vazquez, apuntado como
principal error el de que el habia sido condenado
personalmente, y no la corporacion por el
representada.
Segun la preponderancia de las pruebas, la venta
hecha por Antonio Vazquez a favor de Francisco de
Borja de los 4,000 cavanes de palay fue en su
capacidad de Presidente interino y Manager de la
corporacion Natividad-Vazquez Sabani
Development Co., Inc. Asi resulta del Exh. 1, que es
la copia al carbon del recibo otorgado por el
demandado Vazquez, y cuyo original lo habia
perdido el demandante, segun el. Asi tambien
consta en los libros de la corporacion arriba
mencionada, puesto que en los mismos se ha
asentado tanto la entrada de los P8,400, precio del
palay, como su envio al gobierno en pago de los
alquileres de la Hacienda Sabani. Asi mismo lo
admitio Francisco de Borja al abogado Sr. Jacinto
Tomacruz, posterior presidente de la corporacion
sucesora en el arrendamiento de la Sabani Estate,
cuando el solicito sus buenos oficios para el cobro
del precio del palay no entregado. Asi igualmente
lo declaro el que hizo entrega de parte del palay a
Borja, Felipe Veneracion, cuyo testimonio no ha
sido refutado. Y asi se deduce de la misma
demanda, cuando se incluyo en ella a Fernando
Busuego, tesorero de la Natividad-Vazquez Sabani
Development Co., Inc.
Siendo esto asi, la principal responsable debe ser la
Natividad-Vazquez Sabani Development Co., Inc.,
que quedo insolvente y dejo de existir. El Juez
sentenciador declaro, sin embargo, al demandado
Vazquez responsable del pago de la cantidad
reclamada por su negligencia al vender los
referidos 4,000 cavanes de palay sin averiguar
antes si o no dicha cantidad existia en las bodegas
de la corporacion.
Resulta del Exh. 8 que despues de la venta de los
4,000 cavanes de palay a Francisco de Borja, el
mismo demandado vendio a Kwong Ah Phoy 1,500
cavanes al precio de P2.00 el cavan, y decimos
'despues' porque esta ultima venta aparece
asentada despues de la primera. Segun esto, el
apelante no solamente obro con negligencia, sino
interviniendo culpa de su parte, por lo que de
acuerdo con los arts. 1102, 1103 y 1902 del Codigo
Civil, el debe ser responsable subsidiariamente del
pago de la cantidad objecto de la demanda.
En meritos de todo lo expuesto, se confirma la
decision apelada con la modificacion de que el
apelante debe pagar al apelado la suma de
P2,295.70 como valor de los 1,417 cavanes de
palay que dejo de entregar al demandante, mas la
suma de P339.08 como importe de los 1,417 sacos
vacios, que dejo de devolver, a razon de P0.24 el
saco, total P3,314.78, con sus intereses legales
 28
desde la interposicion de la demanda y las costas
de ambas instancias.
Vista la mocion de reconsideracion de nuestra
decision de fecha 13 de Octubre de 1942, y
alegandose en la misma que cuando el apelante
vendio los 1,500 cavanes de palay a Ah Phoy, la
corporacion todavia tenia bastante existencia de
dicho grano, y no estando dicho extremo
suficientemente discutido y probado, y pudiendo
variar el resultado del asunto, dejamos sin efecto
nuestra citada decision, y ordenamos la devolucion
de la causa al Juzgado de origen para que reciba
pruebas al efecto y dicte despues la decision
correspondiente.
Upon consideration of the motion of the attorney
for the plaintiff-appellee in case CA-G.R. No. 8676,
Francisco de Borja vs. Antonio Vasquez et al.,
praying, for the reasons therein given, that the
resolution of December 22, 1942, be reconsidered:
Considering that said resolution remanding the
case to the lower court is for the benefit of the
plaintiff-appellee to afford him opportunity to
refute the contention of the defendant-appellant
Antonio Vazquez, motion denied.
The action is on a contract, and the only issue pleaded and
tried is whether the plaintiff entered into the contract with
the defendant Antonio Vazquez in his personal capacity or
as manager of the Natividad-Vazquez Sabani Development
Co., Inc. The Court of Appeals found that according to the
preponderance of the evidence "the sale made by Antonio
Vazquez in favor of Francisco de Borja of 4,000 cavans of
palay was in his capacity as acting president and manager
of the corporation Natividad-Vazquez Sabani Development
Co., Inc." That finding of fact is final and, it resolving the only
issue involved, should be determinative of the result.
The Court of Appeals doubly erred in ordering that the
cause be remanded to the court of origin for further trial to
determine whether the corporation had sufficient stock of
palay at the time appellant sold, 1500 cavans of palay to
Kwong Ah Phoy. First, if that point was material to the issue,
it should have been proven during the trial; and the
statement of the court that it had not been sufficiently
discussed and proven was no justification for ordering a
new trial, which, by the way, neither party had solicited but
against which, on the contrary, both parties now
vehemently protest. Second, the point is, in any event,
beside the issue, and this we shall now discuss in connection
with the original judgment of the Court of Appeals which
the plaintiff cross-petitioner seeks to maintain.
The action being on a contract, and it appearing from the
preponderance of the evidence that the party liable on the
contract is the Natividad-Vazquez Sabani Development Co.,
Inc. which is not a party herein, the complaint should have
been dismissed. Counsel for the plaintiff, in his brief as
respondent, argues that altho by the preponderance of the
evidence the trial court and the Court of Appeals found that
Vazquez celebrated the contract in his capacity as acting
president of the corporation and altho it was the latter, thru
Vazquez, with which the plaintiff had contracted and which,
thru Vazquez, had received the sum of P8,400 from Borja,
and altho that was true from the point of view of a legal
fiction, "ello no impede que tambien sea verdad lo alegado
en la demanda de que la misma persona de Vasquez fue la
que contrato con Borja y que la misma persona de Vasquez
fue quien recibio la suma de P8,400." But such argument is
invalid and insufficient to show that the president of the
corporation is personally liable on the contract duly and
lawfully entered into by him in its behalf.
It is well known that a corporation is an artificial being
invested by law with a personality of its own, separate and
distinct from that of its stockholders and from that of its
officers who manage and run its affairs. The mere fact that
its personality is owing to a legal fiction and that it
necessarily has to act thru its agents, does not make the
latter personally liable on a contract duly entered into, or
for an act lawfully performed, by them for an in its behalf.
The legal fiction by which the personality of a corporation is
created is a practical reality and necessity. Without it no
corporate entities may exists and no corporate business
may be transacted. Such legal fiction may be disregarded
only when an attempt is made to use it as a cloak to hide an
unlawful or fraudulent purpose. No such thing has been
alleged or proven in this case. It has not been alleged nor
even intimated that Vazquez personally benefited by the
contract of sale in question and that he is merely invoking
the legal fiction to avoid personal liability. Neither is it
contended that he entered into said contract for the
corporation in bad faith and with intent to defraud the
plaintiff. We find no legal and factual basis upon which to
hold him liable on the contract either principally or
subsidiarily.
The trial court found him guilty of negligence in the
performance of the contract and held him personally liable
on that account. On the other hand, the Court of Appeals
found that he "no solamente obro con negligencia, sino
interveniendo culpa de su parte, por lo que de acuerdo con
los arts. 1102, 1103 y 1902 del Codigo Civil, el debe ser
responsable subsidiariamente del pago de la cantidad
objeto de la demanda." We think both the trial court and
the Court of Appeals erred in law in so holding. They have
manifestly failed to distinguish a contractual from an
extracontractual obligation, or an obligation arising from
contract from an obligation arising from culpa aquiliana.
The fault and negligence referred to in articles 1101-1104
of the Civil Code are those incidental to the fulfillment or
nonfullfillment of a contractual obligation; while the fault or
negligence referred to in article 1902 is the culpa aquiliana
of the civil law, homologous but not identical to tort of the
common law, which gives rise to an obligation
independently of any contract. (Cf. Manila R.R. Co. vs. Cia.
Trasatlantica, 38 Phil., 875, 887-890; Cangco vs. Manila R.R.
Co., 38 Phil. 768.) The fact that the corporation, acting thru
Vazquez as its manager, was guilty of negligence in the
fulfillment of the contract, did not make Vazquez principally
or even subsidiarily liable for such negligence. Since it was
the corporation's contract, its nonfulfillment, whether due
to negligence or fault or to any other cause, made the
corporation and not its agent liable.
On the other hand if independently of the contract Vazquez
by his fault or negligence cause damaged to the plaintiff, he
 29
would be liable to the latter under article 1902 of the Civil
Code. But then the plaintiff's cause of action should be
based on culpa aquiliana and not on the contract alleged in
his complaint herein; and Vazquez' liability would be
principal and not merely subsidiary, as the Court of Appeals
has erroneously held. No such cause of action was alleged
in the complaint or tried by express or implied consent of
the parties by virtue of section 4 of Rule 17. Hence the trial
court had no jurisdiction over the issue and could not
adjudicate upon it (Reyes vs. Diaz, G.R. No. 48754.)
Consequently it was error for the Court of Appeals to
remand the case to the trial court to try and decide such
issue.
It only remains for us to consider petitioner's second
assignment of error referring to the lower courts' refusal to
entertain his counterclaim for damages against the
respondent Borja arising from the bringing of this action.
The lower courts having sustained plaintiff's action. The
finding of the Court of Appeals that according to the
preponderance of the evidence the defendant Vazquez
celebrated the contract not in his personal capacity but as
acting president and manager of the corporation, does not
warrant his contention that the suit against him is malicious
and tortious; and since we have to decide defendant's
counterclaim upon the facts found by the Court of Appeals,
we find no sufficient basis upon which to sustain said
counterclaim. Indeed, we feel that a a matter of moral
justice we ought to state here that the indignant attitude
adopted by the defendant towards the plaintiff for having
brought this action against him is in our estimation not
wholly right. Altho from the legal point of view he was not
personally liable for the fulfillment of the contract entered
into by him on behalf of the corporation of which he was
the acting president and manager, we think it was his moral
duty towards the party with whom he contracted in said
capacity to see to it that the corporation represented by
him fulfilled the contract by delivering the palay it had sold,
the price of which it had already received. Recreant to such
duty as a moral person, he has no legitimate cause for
indignation. We feel that under the circumstances he not
only has no cause of action against the plaintiff for damages
but is not even entitled to costs.
The judgment of the Court of Appeals is reversed, and the
complaint is hereby dismissed, without any finding as to
costs.
G.R. No. 180440 December 5, 2012
DR. GENEVIEVE L. HUANG, Petitioner,
vs.
PHILIPPINE HOTELIERS, INC., DUSIT THANI PUBLIC CO.,
LTD. And FIRST LEPANTO TAISHO INSURANCE
CORPORATION, Respondents.
DECISION
PEREZ, J.:
For this Court’s resolution is a Petition for Review on
Certiorari under Rule 45 of the Rules of Court, assailing the
Decision1 of the Court of Appeals in CA-G.R. CV No. 87065
dated 9 August 2007, affirming the Decision2 of Branch 56
of the Regional Trial Court (RTC) of Makati City in Civil Case
No. 96-1367 dated 21 February 2006, dismissing for lack of
merit herein petitioner Dr. Genevieve L. Huang’s Complaint
for Damages. Assailed as well is the Court of Appeals’
Resolution3 dated 5 November 2007 denying for lack of
merit petitioner’s Motion for Reconsideration.
This case stemmed from a Complaint for Damages filed on
28 August 1996 by petitioner Dr. Genevieve L. Huang4
against herein respondents Philippine Hoteliers, Inc. (PHI)5
and Dusit Thani Public Co., Ltd. (DTPCI),6 as owners of Dusit
Thani Hotel Manila (Dusit Hotel);7 and co-respondent First
Lepanto Taisho Insurance Corporation (First Lepanto),8 as
insurer of the aforesaid hotel. The said Complaint was
premised on the alleged negligence of respondents PHI and
DTPCI’s staff, in the untimely putting off all the lights within
the hotel’s swimming pool area, as well as the locking of the
main entrance door of the area, prompting petitioner to
grope for a way out. While doing so, a folding wooden
counter top fell on her head causing her serious brain injury.
The negligence was allegedly compounded by respondents
PHI and DTPCI’s failure to render prompt and adequate
medical assistance.
Petitioner’s version of the antecedents of this case is as
follows:
On 11 June 1995, Delia Goldberg (Delia), a registered guest
of Dusit Hotel, invited her friend, petitioner Dr. Genevieve
L. Huang, for a swim at the hotel’s swimming pool facility.
They started bathing at around 5:00 p.m. At around 7:00
p.m., the hotel’s swimming pool attendant informed them
that the swimming pool area was about to be closed. The
 30
two subsequently proceeded to the shower room adjacent
to the swimming pool to take a shower and dress up.
However, when they came out of the bathroom, the entire
swimming pool area was already pitch black and there was
no longer any person around but the two of them. They
carefully walked towards the main door leading to the hotel
but, to their surprise, the door was locked.9
Petitioner and Delia waited for 10 more minutes near the
door hoping someone would come to their rescue but they
waited in vain. Delia became anxious about their situation
so petitioner began to walk around to look for a house
phone. Delia followed petitioner. After some time,
petitioner saw a phone behind the lifeguard’s counter.
While slowly walking towards the phone, a hard and heavy
object, which later turned out to be the folding wooden
counter top, fell on petitioner’s head that knocked her
down almost unconscious.10
Delia immediately got hold of the house phone and notified
the hotel telephone operator of the incident. Not long after,
the hotel staff arrived at the main entrance door of the
swimming pool area but it took them at least 20 to 30
minutes to get inside. When the door was finally opened,
three hotel chambermaids assisted petitioner by placing an
ice pack and applying some ointment on her head. After
petitioner had slightly recovered, she requested to be
assisted to the hotel’s coffee shop to have some rest.
Petitioner demanded the services of the hotel physician.11
Dr. Violeta Dalumpines (Dr. Dalumpines) arrived. She
approached petitioner and introduced herself as the hotel
physician. However, instead of immediately providing the
needed medical assistance, Dr. Dalumpines presented a
"Waiver" and demanded that it be signed by petitioner,
otherwise, the hotel management will not render her any
assistance. Petitioner refused to do so.12
After eating her dinner and having rested for a while,
petitioner left the hotel’s coffee shop and went home.
Thereupon, petitioner started to feel extraordinary
dizziness accompanied by an uncomfortable feeling in her
stomach, which lasted until the following day. Petitioner
was constrained to stay at home, thus, missing all her
important appointments with her patients. She also began
experiencing "on" and "off" severe headaches that caused
her three (3) sleepless nights.13
Petitioner, thus, decided to consult a certain Dr. Perry Noble
(Dr. Noble), a neurologist from Makati Medical Center, who
required her to have an X-ray and a Magnetic Resonance
Imaging (MRI) tests.14 The MRI Report15 dated 23 August
1995 revealed the following findings:
CONSULTATION REPORT:
MRI examination of the brain shows scattered areas of
intraparenchymal contusions and involving mainly the left
middle and posterior temporal and slightly the right
anterior temporal lobe.
Other small areas of contusions with suggestive pertechiae
are seen in the left fronto-parietal, left parieto-occipital and
with deep frontal periventricular subcortical and cortical
regions. There is no mass effect nor signs of localized
hemorrhagic extravasation.
The ventricles are not enlarged, quite symmetrical without
shifts or deformities; the peripheral sulci are within normal
limits.
The C-P angles, petromastoids, sella, extrasellar and retro
orbital areas appear normal.
The brainstem is unremarkable.
IMPRESSION: Scattered small intraparenchymal contusions
mainly involving the left middle-posterior temporal lobe
and also right medial anterior temporal, both deep frontal
subcortical, left parieto-occipital subcortical and cortical
regions. Ischemic etiology not ruled out. No localized intra -
or extracerebral hemorrhage.16
Petitioner claimed that the aforesaid MRI result clearly
showed that her head was bruised. Based also on the same
MRI result, Dr. Noble told her that she has a very serious
brain injury. In view thereof, Dr. Noble prescribed the
necessary medicine for her condition.17
Petitioner likewise consulted a certain Dr. Ofelia Adapon,
also a neurologist from Makati Medical Center, who
required her to undergo an Electroencephalogram
examination (EEG) to measure the electrostatic in her
brain.18 Based on its result,19 Dr. Ofelia Adapon informed
her that she has a serious condition—a permanent one. Dr.
Ofelia Adapon similarly prescribed medicines for her brain
injury.20
Petitioner’s condition did not get better. Hence, sometime
in September 1995, she consulted another neuro-surgeon
by the name of Dr. Renato Sibayan (Dr. Sibayan), who
required her to have an X-ray test.21 According to petitioner,
Dr. Sibayan’s finding was the same as those of the previous
doctors that she had consulted—she has a serious brain
injury.22
By reason of the unfortunate 11 June 1995 incident inside
the hotel’s swimming pool area, petitioner also started to
feel losing her memory, which greatly affected and
disrupted the practice of her chosen profession.23 Thus, on
25 October 1995, petitioner, through counsel, sent a
demand letter24 to respondents PHI and DTPCI seeking
payment of an amount not less than P100,000,000.00
representing loss of earnings on her remaining life span.
But, petitioner’s demand was unheeded.
In November 1995, petitioner went to the United States of
America (USA) for further medical treatment. She consulted
a certain Dr. Gerald Steinberg and a certain Dr. Joel
Dokson25 from Mount Sinai Hospital who both found that
she has "post traumatic-post concussion/contusion
cephalgias-vascular and neuralgia."26 She was then
prescribed to take some medications for severe pain and to
undergo physical therapy. Her condition did not improve so
she returned to the Philippines.27
 31
Petitioner, once again, consulted Dr. Sibayan, who simply
told her to just relax and to continue taking her medicines.
Petitioner also consulted other neurologists, who all
advised her to just continue her medications and to
undergo physical therapy for her neck pain.28
Sometime in 1996, petitioner consulted as well a certain Dr.
Victor Lopez (Dr. Lopez), an ophthalmologist from the
Makati Medical Center, because of her poor vision, which
she has experienced for several months.29 Petitioner’s Eye
Report dated 5 March 199630 issued by Dr. Lopez stated:
"IMPRESSION: Posterior vitreous detachment, right eye of
floaters." Dr. Lopez told petitioner that her detached eye is
permanent and very serious. Dr. Lopez then prescribed an
eye drop to petitioner.31
For petitioner’s frustration to dissipate and to regain her
former strength and physical well-being, she consulted
another neuro-surgeon from Makati Medical Center by the
name of Dr. Leopoldo P. Pardo, Jr. (Dr. Pardo, Jr.).32 She
disclosed to Dr. Pardo, Jr. that at the age of 18 she suffered
a stroke due to mitral valve disease and that she was given
treatments, which also resulted in thrombocytopenia. In Dr.
Pardo, Jr.’s medical evaluation of petitioner dated 15 May
1996,33 he made the following diagnosis and opinion:
DIAGNOSIS AND OPINION:
This patient sustained a severe head injury in (sic) 11 June
1995 and as a result of which she developed the following
injuries:
1. Cerebral Concussion and Contusion
2. Post-traumatic Epilepsy
3. Post-concussional Syndrome
4. Minimal Brain Dysfunction
5. Cervical Sprain, chronic recurrent
It is my opinion that the symptoms she complained of in the
foregoing history are all related to and a result of the injury
sustained on 11 June 1995.
It is further my opinion that the above diagnosis and
complaints do materially affect her duties and functions as
a practicing physician and dermatologist, and that she will
require treatment for an undetermined period of time.
The percentage of disability is not calculated at this time
and will require further evaluation and observation.34
Dr. Pardo, Jr. then advised petitioner to continue her
medications.35
Petitioner likewise consulted a certain Dr. Tenchavez36 for
her follow-up EEG.37 He similarly prescribed medicine for
petitioner’s deep brain injury. He also gave her pain killer
for her headache and advised her to undergo physical
therapy. Her symptoms, however, persisted all the more.38
In 1999, petitioner consulted another neurologist at the
Makati Medical Center by the name of Dr. Martesio Perez
(Dr. Perez) because of severe fleeting pains in her head,
arms and legs; difficulty in concentration; and warm
sensation of the legs, which symptoms also occurred after
the 11 June 1995 incident. Upon examination, Dr. Perez
observed that petitioner has been experiencing severe
pains and she has a slight difficulty in concentration. He
likewise noted that there was a slight spasm of petitioner’s
neck muscle but, otherwise, there was no objective
neurologic finding. The rest of petitioner’s neurologic
examination was essentially normal.39
Dr. Perez’s neurologic evaluation40 of petitioner reflected,
among others: (1) petitioner’s past medical history, which
includes, among others, mitral valve stenosis; (2) an
interpretation of petitioner’s EEG results in October 1995
and in January 1999, i.e., the first EEG showed sharp waves
seen bilaterally more on the left while the second one was
normal; and (3) interpretation of petitioner’s second MRI
result, i.e., petitioner has a permanent damage in the brain,
which can happen either after a head injury or after a
stroke. Dr. Perez concluded that petitioner has post-
traumatic or post concussion syndrome.41
Respondents, on the other hand, denied all the material
allegations of petitioner and, in turn, countered the latter’s
statement of facts, thus:
According to respondents PHI and DTPCI, a sufficient notice
had been posted on the glass door of the hotel leading to
the swimming pool area to apprise the people, especially
the hotel guests, that the swimming pool area is open only
from 7:00 a.m. to 7:00 p.m.42 Though the hotel’s swimming
pool area is open only between the aforestated time, the
lights thereon are kept on until 10:00 p.m. for, (1) security
reasons; (2) housekeeping personnel to do the cleaning of
the swimming pool surroundings; and (3) people doing their
exercise routine at the Slimmer’s World Gym adjacent to
the swimming pool area, which was then open until 10:00
p.m., to have a good view of the hotel’s swimming pool.
Even granting that the lights in the hotel’s swimming pool
area were turned off, it would not render the area
completely dark as the Slimmer’s World Gym near it was
well-illuminated.43
Further, on 11 June 1995, at round 7:00 p.m., the hotel’s
swimming pool attendant advised petitioner and Delia to
take their showers as it was already closing time.
Afterwards, at around 7:40 p.m., Pearlie Benedicto-Lipana
(Ms. Pearlie), the hotel staff nurse, who was at the hotel
clinic located at the mezzanine floor, received a call from
the hotel telephone operator informing her that there was
a guest requiring medical assistance at the hotel’s
swimming pool area located one floor above the clinic.44
Immediately, Ms. Pearlie got hold of her medical kit and
hurriedly went to the hotel’s swimming pool area. There
she saw Delia and petitioner, who told her that she was hit
on the head by a folding wooden counter top. Although
petitioner looked normal as there was no indication of any
blood or bruise on her head, Ms. Pearlie still asked her if she
needed any medical attention to which petitioner replied
that she is a doctor, she was fine and she did not need any
 32
medical attention. Petitioner, instead, requested for a
hirudoid cream to which Ms. Pearlie acceded.45
At about 8:00 p.m., after attending to petitioner, Ms.
Pearlie went back to the hotel clinic to inform Dr.
Dalumpines of the incident at the hotel’s swimming pool
area. But before she could do that, Dr. Dalumpines had
already chanced upon Delia and petitioner at the hotel’s
coffee shop and the latter reported to Dr. Dalumpines that
her head was hit by a folding wooden counter top while she
was inside the hotel’s swimming pool area. When asked by
Dr. Dalumpines how she was, petitioner responded she is a
doctor, she was fine and she was already attended to by the
hotel nurse, who went at the hotel’s swimming pool area
right after the accident. Dr. Dalumpines then called Ms.
Pearlie to verify the same, which the latter confirmed.46
Afterwards, Dr. Dalumpines went back to petitioner and
checked the latter’s condition. Petitioner insisted that she
was fine and that the hirudoid cream was enough. Having
been assured that everything was fine, Dr. Dalumpines
requested petitioner to execute a handwritten
certification47 regarding the incident that occurred that
night. Dr. Dalumpines then suggested to petitioner to have
an X-ray test. Petitioner replied that it was not necessary.
Petitioner also refused further medical attention.48
On 13 June 1995, petitioner called up Dr. Dalumpines. The
call, however, had nothing to do with the 11 June 1995
incident. Instead, petitioner merely engaged in small talk
with Dr. Dalumpines while having her daily massage. The
two talked about petitioner’s personal matters, i.e., past
medical history, differences with siblings and family over
inheritance and difficulty in practice. Petitioner even
disclosed to Dr. Dalumpines that she once fell from a horse;
that she had a stroke; had hysterectomy and is incapable of
having children for her uterus had already been removed;
that she had blood disorder, particularly lack of platelets,
that can cause bleeding; and she had an "on" and "off"
headaches. Petitioner oftentimes called Dr. Dalumpines at
the hotel clinic to discuss topics similar to those discussed
during their 13 June 1995 conversation.49
Also, during one of their telephone conversations,
petitioner requested for a certification regarding the 11
June 1995 incident inside the hotel’s swimming pool area.
Dr. Dalumpines accordingly issued Certification dated 7
September 1995, which states that:50
CERTIFICATION
This is to certify that as per Clinic records, duty nurse Pearlie
was called to attend to an accident at the poolside at
7:45PM on 11 June 1995.
Same records show that there, she saw petitioner who
claimed the folding countertop fell on her head when she
lifted it to enter the lifeguard’s counter to use the phone.
She asked for Hirudoid.
The same evening petitioner met Dr. Dalumpines at the
Coffee Shop. After narrating the poolside incident and
declining Dr. Dalumpines’ offer of assistance, she reiterated
that the Hirudoid cream was enough and that petitioner
being a doctor herself, knew her condition and she was all
right.
This certification is given upon the request of petitioner for
whatever purpose it may serve, 7 September 1995 at
Makati City.51 (Emphasis supplied).
Petitioner personally picked up the afore-quoted
Certification at the hotel clinic without any objection as to
its contents.52
From 11 June 1995 until 7 September 1995, the hotel clinic
never received any complaint from petitioner regarding the
latter’s condition. The hotel itself neither received any
written complaint from petitioner.53
After trial, the court a quo in its Decision dated 21 February
2006 dismissed petitioner’s Complaint for lack of merit.
The trial court found petitioner’s testimony self-serving,
thus, devoid of credibility. Petitioner failed to present any
evidence to substantiate her allegation that the lights in the
hotel’s swimming pool area were shut off at the time of the
incident. She did not even present her friend, Delia, to
corroborate her testimony. More so, petitioner’s testimony
was contradicted by one of the witnesses presented by the
respondents who positively declared that it has been a
normal practice of the hotel management not to put off the
lights until 10:00 p.m. to allow the housekeepers to do the
cleaning of the swimming pool surroundings, including the
toilets and counters. Also, the lights were kept on for
security reasons and for the people in the nearby gym to
have a good view of the swimming pool while doing their
exercise routine. Besides, there was a remote possibility
that the hotel’s swimming pool area was in complete
darkness as the aforesaid gym was then open until 10:00
p.m., and the lights radiate to the hotel’s swimming pool
area. As such, petitioner would not have met the accident
had she only acted with care and caution.54
The trial court further struck down petitioner’s contention
that the hotel management did not extend medical
assistance to her in the aftermath of the accident. Records
showed that the hotel management immediately
responded after being notified of the accident. The hotel
nurse and the two chambermaids placed an ice pack on
petitioner’s head. They were willing to extend further
emergency assistance but petitioner refused and merely
asked for a hirudoid cream. Petitioner even told them she is
a doctor and she was fine. Even the medical services offered
by the hotel physician were turned down by petitioner.
Emphatically, petitioner cannot fault the hotel for the injury
she sustained as she herself did not heed the warning that
the swimming pool area is open only from 7:00 a.m. to 7:00
p.m. As such, since petitioner’s own negligence was the
immediate and proximate cause of her injury, she cannot
recover damages.55
The trial court similarly observed that the records revealed
no indication that the head injury complained of by
petitioner was the result of the alleged 11 June 1995
accident. Firstly, petitioner had a past medical history which
 33
might have been the cause of her recurring brain injury.
Secondly, the findings of Dr. Perez did not prove a causal
relation between the 11 June 1995 accident and the brain
damage suffered by petitioner. Even Dr. Perez himself
testified that the symptoms being experienced by
petitioner might have been due to factors other than the
head trauma she allegedly suffered. It bears stressing that
petitioner had been suffering from different kinds of brain
problems since she was 18 years old, which may have been
the cause of the recurring symptoms of head injury she is
experiencing at present. Absent, therefore, of any proof
establishing the causal relation between the injury she
allegedly suffered on 11 June 1995 and the head pains she
now suffers, her claim must fail. Thirdly, Dr. Teresita
Sanchez’s (Dr. Sanchez) testimony cannot be relied upon
since she testified on the findings and conclusions of
persons who were never presented in court. Ergo, her
testimony thereon was hearsay. Fourthly, the medical
reports/evaluations/certifications issued by myriads of
doctors whom petitioner sought for examination or
treatment were neither identified nor testified to by those
who issued them. Being deemed as hearsay, they cannot be
given probative value. Even assuming that petitioner
suffered head injury as a consequence of the 11 June 1995
accident, she cannot blame anyone but herself for staying
at the hotel’s swimming pool area beyond its closing hours
and for lifting the folding wooden counter top that
eventually hit her head.56
For petitioner’s failure to prove that her serious and
permanent injury was the result of the 11 June 1995
accident, thus, her claim for actual or compensatory
damages, loss of income, moral damages, exemplary
damages and attorney’s fees, must all fail.57
With regard to respondent First Lepanto’s liability, the trial
court ruled that under the contract of insurance, suffice it
to state that absent any cause for any liability against
respondents PHI and DTPCI, respondent First Lepanto
cannot be made liable thereon.
Dissatisfied, petitioner elevated the matter to the Court of
Appeals with the following assignment of errors: (1) the trial
court erred in finding that the testimony of petitioner is self-
serving and thus void of credibility; (2) the trial court erred
in applying the doctrine of proximate cause in cases of
breach of contract and even assuming arguendo that the
doctrine is applicable, petitioner was able to prove by
sufficient evidence the causal connection between her
injuries and respondents PHI and DTPCI’s negligent act; and
(3) the trial court erred in holding that petitioner is not
entitled to damages.58
On 9 August 2007, the Court of Appeals rendered a Decision
affirming the findings and conclusions of the trial court.
The Court of Appeals ratiocinated in this wise:
At the outset, it is necessary for our purpose to determine
whether to decide this case on the theory that herein
respondents PHI and DTPCI are liable for breach of contract
or on the theory of quasi-delict.
xxxx
It cannot be gainsaid that herein petitioner’s use of the
hotel’s pool was only upon the invitation of Delia, the
hotel’s registered guest. As such, she cannot claim
contractual relationship between her and the hotel. Since
the circumstances of the present case do not evince a
contractual relation between petitioner and respondents,
the rules on quasi-delict , thus, govern.
The pertinent provision of Art. 2176 of the Civil Code which
states: "Whoever by act or omission causes damage to
another, there being fault or negligence, is obliged to pay
for the damage done. Such fault or negligence, if there is no
pre-existing contractual relation between the parties, is
called quasi-delict."
A perusal of Article 2176 shows that obligations arising from
quasi-delict or tort, also known as extra-contractual
obligations, arise only between parties not otherwise
bound by contract, whether express or implied. Thus, to
sustain a claim liability under quasi-delict, the following
requisites must concur: (a) damages suffered by the
plaintiff; (b) fault or negligence of the defendant, or some
other person for whose acts he must respond; and (c) the
connection of cause and effect between the fault or
negligence of the defendant and the damages incurred by
the plaintiff.
Viewed from the foregoing, the question now is whether
respondents PHI and DTPCI and its employees were
negligent? We do not think so. Several factors militate
against petitioner’s contention.
One. Petitioner recognized the fact that
the pool area’s closing time is 7:00 p.m..
She, herself, admitted during her
testimony that she was well aware of the
sign when she and Delia entered the pool
area. Hence, upon knowing, at the outset,
of the pool’s closing time, she took the risk
of overstaying when she decided to take
shower and leave the area beyond the
closing hour. In fact, it was only upon the
advise of the pool attendants that she
thereafter took her shower.
Two. She admitted, through her
certification that she lifted the wooden bar
countertop, which then fell onto her head.
The admission in her certificate proves the
circumstances surrounding the occurrence
that transpired on the night of 11 June
1995. This is contrary to her assertion in
the complaint and testimony that, while
she was passing through the counter door,
she was suddenly knocked out by a hard
and heavy object. In view of the fact that
she admitted having lifted the counter top,
it was her own doing, therefore, that made
the counter top fell on to her head.
 34
Three. We cannot likewise subscribe to
petitioner’s assertion that the pool area
was totally dark in that she herself
admitted that she saw a telephone at the
counter after searching for one. It must be
noted that petitioner and Delia had walked
around the pool area with ease since they
were able to proceed to the glass entrance
door from shower room, and back to the
counter area where the telephone was
located without encountering any
untoward incident. Otherwise, she could
have easily stumbled over, or slid, or
bumped into something while searching
for the telephone. This negates her
assertion that the pool area was
completely dark, thereby, totally impairing
her vision.
xxxx
The aforementioned circumstances lead us to no other
conclusion than that the proximate and immediate cause of
the injury of petitioner was due to her own negligence.
Moreover, petitioner failed to sufficiently substantiate that
the medical symptoms she is currently experiencing are the
direct result of the head injury she sustained on 11 June
1995 as was aptly discussed in the lower court’s findings.
xxxx
It bears stressing that in civil cases, the law requires that the
party who alleges a fact and substantially asserts the
affirmative of the issue has the burden of proving it. Hence,
for petitioner to be entitled to damages, she must show
that she had suffered an actionable injury. Regrettably,
petitioner failed in this regard.59 (Emphasis supplied).
Petitioner’s Motion for Reconsideration was denied for lack
of merit in a Resolution dated 5 November 2007.
Hence, this Petition raising the following issues:
(1) Whether or not the findings of fact of
the trial court and of the Court of Appeals
are conclusive in this case.
(2) Whether or not herein respondents PHI
and DTPCI are responsible by implied
contract to exercise due care for the safety
and welfare of the petitioner.
(3) Whether or not the cause of action of
the petitioner can be based on both
breach of contract and tort.
(4) Whether or not it is respondents PHI
and DTPCI and its employees who are
liable to the petitioner for negligence,
applying the well-established doctrines of
res ipsa loquitur and respondeat superior.
(5) Whether the petitioner’s debilitating
and permanent injuries were a result of
the accident she suffered at the hotel on
11 June 1995.
(6) Whether or not the petitioner is
entitled to the payment of damages,
attorney’s fees, interest, and the costs of
suit.
(7) Whether or not the respondent
insurance company is liable, even directly,
to the petitioner.
(8) Whether or not petitioner’s motion for
reconsideration of the decision of the
Court of Appeals is pro forma.60
Petitioner argues that the rule that "findings of fact of the
lower courts are conclusive and must be respected on
appeal" finds no application herein because this case falls
under the jurisprudentially established exceptions.
Moreover, since the rationale behind the afore-mentioned
rule is that "the trial judge is in a vantage point to appreciate
the conduct and behavior of the witnesses and has the
unexcelled opportunity to evaluate their testimony," one
logical exception to the rule that can be deduced therefrom
is when the judge who decided the case is not the same
judge who heard and tried the case.
Petitioner further faults the Court of Appeals in ruling that
no contractual relationship existed between her and
respondents PHI and DTPCI since her use of the hotel’s
swimming pool facility was only upon the invitation of the
hotel’s registered guest. On the contrary, petitioner
maintains that an implied contract existed between them in
view of the fact that the hotel guest status extends to all
those who avail of its services—its patrons and invitees. It
follows then that all those who patronize the hotel and its
facilities, including those who are invited to partake of
those facilities, like petitioner, are generally regarded as
guests of the hotel. As such, respondents PHI and DTPCI are
responsible by implied contract for the safety and welfare
of petitioner while the latter was inside their premises by
exercising due care, which they failed to do.
Petitioner even asserts that the existence of a contract
between the parties does not bar any liability for tort since
the act that breaks a contract may also be a tort. Hence, the
concept of change of theory of cause of action pointed to
by respondents is irrelevant.
Petitioner similarly avows that the doctrines of res ipsa
loquitur and respondeat superior are applicable in this case.
She argues that a person who goes in a hotel without a
"bukol" or hematoma and comes out of it with a "bukol" or
hematoma is a clear case of res ipsa loquitur. It was an
accident caused by the fact that the hotel staff was not
present to lift the heavy counter top for petitioner as is
normally expected of them because they negligently locked
the main entrance door of the hotel’s swimming pool area.
Following the doctrine of res ipsa loquitur, respondents PHI
and DTPCI’s negligence is presumed and it is incumbent
 35

upon them to prove otherwise but they failed to do so. (b) When the inference made is manifestly
Further, respondents PHI and DTPCI failed to observe all the mistaken, absurd, or impossible;
diligence of a good father of a family in the selection and
supervision of their employees, hence, following the (c) When there is grave abuse of
doctrine of respondeat superior, they were liable for the discretion;
negligent acts of their staff in not verifying if there were still
people inside the swimming pool area before turning off the (d) When the judgment is based on a
lights and locking the door. Had respondents PHI and misapprehension of facts;
DTPCI’s employees done so, petitioner would not have been
injured. Since respondents PHI and DTPCI’s negligence need (e) When the findings of facts are
not be proved, the lower courts erred in shifting the burden conflicting;
to petitioner and, thereafter, holding the hotel and its
employees not negligent for petitioner’s failure to prove (f) When in making its findings the Court of
their negligence. Moreover, petitioner alleges that there Appeals went beyond the issues of the
was no contributory negligence on her part for she did not case, or its findings are contrary to the
do anything that could have contributed to her injury. And, admissions of both the appellant and the
even if there was, the same does not bar recovery. appellee;

Petitioner equally declares that the evidence on record, (g) When the Court of Appeals’ findings are
including the objective medical findings, had firmly contrary to those by the trial court;
established that her permanent debilitating injuries were
the direct result of the 11 June 1995 accident inside the
(h) When the findings are conclusions
hotel’s swimming pool area. This fact has not been totally
without citation of specific evidence on
disputed by the respondents. Further, the medical experts
which they are based;
who had been consulted by petitioner were in unison in
their diagnoses of her condition. Petitioner was also able to
(i) When the facts set forth in the petition
prove that the falling of the folding wooden counter top on
as well as in the petitioner’s main and
her head while she was at the hotel’s swimming pool area
reply briefs are not disputed by the
was the cause of her head, eye and neck injuries.
respondent;
Petitioner reiterates her claim for an award of damages, to
(j) When the findings of fact are premised
wit: actual, including loss of income; moral, exemplary; as
on the supposed absence of evidence and
well as attorney’s fees, interest and costs of suit. She states
contradicted by the evidence on record; or
that respondents PHI and DTPCI are liable for quasi-delict
under Articles 19, 2176 and 2180 of the New Civil Code. At
the same time, they are liable under an implied contract for (k) When the Court of Appeals manifestly
they have a public duty to give due courtesy, to exercise overlooked certain relevant facts not
reasonable care and to provide safety to hotel guests, disputed by the parties, which, if properly
patrons and invitees. Respondent First Lepanto, on the considered, would justify a different
other hand, is directly liable under the express contract of conclusion.64
insurance.
Upon meticulous perusal of the records, however, this
Lastly, petitioner contends that her Motion for Court finds that none of these exceptions is obtaining in this
Reconsideration before the Court of Appeals was not pro case. No such justifiable or compelling reasons exist for this
forma for it specifically pointed out the alleged errors in the Court to depart from the general rule. This Court will not
Court of Appeals Decision. disturb the factual findings of the trial court as affirmed by
the Court of Appeals and adequately supported by the
evidence on record.
The instant Petition is devoid of merit.
Also, this Court will not review the factual findings of the
Primarily, only errors of law and not of facts are reviewable
trial court simply because the judge who heard and tried the
by this Court in a Petition for Review on Certiorari under
case was not the same judge who penned the decision. This
Rule 45 of the Rules of Court.61 This Court is not a trier of
fact alone does not diminish the veracity and correctness of
facts and it is beyond its function to re-examine and weigh
the factual findings of the trial court.65 Indeed, "the efficacy
anew the respective evidence of the parties.62 Besides, this
of a decision is not necessarily impaired by the fact that its
Court adheres to the long standing doctrine that the factual
writer only took over from a colleague who had earlier
findings of the trial court, especially when affirmed by the
presided at the trial, unless there is showing of grave abuse
Court of Appeals, are conclusive on the parties and this
of discretion in the factual findings reached by him."66 In this
Court.63 Nonetheless, this Court has, at times, allowed
case, there was none.
exceptions thereto, to wit:

It bears stressing that in this jurisdiction there is a

(a) When the findings are grounded
disputable presumption that the trial court’s decision is
entirely on speculation, surmises, or
rendered by the judge in the regular performance of his
conjectures;
official duties. While the said presumption is only
 36
disputable, it is satisfactory unless contradicted or
overcame by other evidence. Encompassed in this
presumption of regularity is the presumption that the trial
court judge, in resolving the case and drafting the decision,
reviewed, evaluated, and weighed all the evidence on
record. That the said trial court judge is not the same judge
who heard the case and received the evidence is of little
consequence when the records and transcripts of
stenographic notes (TSNs) are complete and available for
consideration by the former,67 just like in the present case.
Irrefragably, the fact that the judge who penned the trial
court’s decision was not the same judge who heard the case
and received the evidence therein does not render the
findings in the said decision erroneous and unreliable.
While the conduct and demeanor of witnesses may sway a
trial court judge in deciding a case, it is not, and should not
be, his only consideration. Even more vital for the trial court
judge’s decision are the contents and substance of the
witnesses’ testimonies, as borne out by the TSNs, as well as
the object and documentary evidence submitted and made
part of the records of the case.68
This Court examined the records, including the TSNs, and
found no reason to disturb the factual findings of both
lower courts. This Court, thus, upholds their conclusiveness.
In resolving the second and third issues, a determination of
the cause of action on which petitioner’s Complaint for
Damages was anchored upon is called for.
Initially, petitioner was suing respondents PHI and DTPCI
mainly on account of their negligence but not on any breach
of contract. Surprisingly, when the case was elevated on
appeal to the Court of Appeals, petitioner had a change of
heart and later claimed that an implied contract existed
between her and respondents PHI and DTPCI and that the
latter were liable for breach of their obligation to keep her
safe and out of harm. This allegation was never an issue
before the trial court. It was not the cause of action relied
upon by the petitioner not until the case was before the
Court of Appeals. Presently, petitioner claims that her cause
of action can be based both on quasi-delict and breach of
contract.
A perusal of petitioner’s Complaint evidently shows that her
cause of action was based solely on quasi-delict. Telling are
the following allegations in petitioner’s Complaint:
6. THAT, in the evening of 11 June 1995,
between the hours from 7:00 to 8:00
o’clock, after herein petitioner and her
friend from New York, Delia, the latter
being then a Hotel guest, were taking their
shower after having a dip in the hotel’s
swimming pool, without any notice or
warning, the Hotel’s staff put off all the
lights within the pool area including the
lights on the hallway and also locked the
main entrance door of the pool area, x x x;
7. THAT, Hotel guest Delia started to panic
while petitioner pacified her by telling her
not to worry as they would both find their
way out. Petitioner knowing that within
the area there is a house phone, started to
look around while Delia was following her,
eventually petitioner saw a phone behind
the counter x x x, that while slowly moving
on towards the phone on a stooping
manner due to the darkness CAUSED BY
UNTIMELY AND NEGLIGENTLY PUTTING
OFF WITH THE LIGHTS BY THE HEREIN
RESPONDENTS PHI AND DTPCI’S
EMPLOYEE while passing through the open
counter door with its Folding Counter Top
also opened, x x x, a hard and heavy object
fell onto the head of the petitioner that
knocked her down almost unconscious
which hard and heavy object turned out to
be the Folding Counter Top;
8. THAT, Delia immediately got hold of the
house phone and notified the Hotel
Telephone Operator about the incident,
immediately the hotel staffs (sic) arrived
but they were stranded behind the main
door of the pool entrance and it too (sic)
them more than twenty (20) minutes to
locate the hotel maintenance employee
who holds the key of the said main
entrance door;
9. THAT, when the door was opened, two
Hotel Chamber Maids assisted the
petitioner to get out of the counter door.
Petitioner being a Physician tried to
control her feelings although groggy and
requested for a HURIDOID, a medicine for
HEMATOMA, as a huge lump developed
on her head while the two Chamber Maids
assisted petitioner by holding the bag of
ice on her head and applying the medicine
on the huge lump;
10. THAT, petitioner after having
recovered slightly from her nightmare,
though still feeling weak, asked to be
assisted to the Hotel Coffee Shop to take a
rest but requested for the hotel’s
Physician. Despite her insistent requests,
the Dusit Hotel refused to lift a finger to
assists petitioner who was then in distress
until a lady approached and introduced
herself as the Hotel’s house Doctor.
Instead however of assisting petitioner by
asking her what kind of assistance the
Hotel could render, in a DISCOURTEOUS
MANNER presented instead a paper and
demanding petitioner to affix her
signature telling her that the Hotel
Management would only assists and
answer for all expenses incurred if
petitioner signs the paper presented, but
she refused and petitioner instead wrote a
marginal note on the said paper stating
her reason therefore, said paper later on
 37
turned out to be a WAIVER OF RIGHT or
QUIT CLAIM;
xxxx
14. THAT, due to the unfortunate incident
caused by respondents PHI and DTPCI’s
gross negligence despite medical
assistance, petitioner started to feel losing
her memory that greatly affected and
disrupted the practice of her chosen
profession x x x.
xxxx
19. THAT, due to respondents PHI and
DTPCI’s gross negligence as being narrated
which caused petitioner to suffer sleepless
nights, depression, mental anguish,
serious anxiety, wounded feelings, and
embarrassment with her Diplomate
friends in the profession and industry, her
social standing in the community was
greatly affected and hence, respondents
PHI and DTPCI must be imposed the
hereunder damages, prayed for x x x and
Artile (sic) 2176 and 2199 of the New Civil
Code of the Philippines x x x.
xxxx
22. THAT, as to Moral, Exemplary and
Actual Damages, as well as petitioner’s
Loss of Income, the amounts are stated in
its prayer hereunder.69
It is clear from petitioner’s allegations that her Complaint
for Damages was predicated on the alleged negligence of
respondents PHI and DTPCI’s staff in the untimely putting
off of all the lights within the hotel’s swimming pool area,
as well as the locking of its main door, prompting her to look
for a way out leading to the fall of the folding wooden
counter top on her head causing her serious brain injury.
The said negligence was allegedly compounded by
respondents PHI and DTPCI’s failure to render prompt and
adequate medical assistance. These allegations in
petitioner’s Complaint constitute a cause of action for
quasi-delict, which under the New Civil Code is defined as
an act, or omission which causes damage to another, there
being fault or negligence.70
It is evident from petitioner’s Complaint and from her open
court testimony that the reliance was on the alleged
tortious acts committed against her by respondents PHI and
DTPCI, through their management and staff. It is now too
late in the day to raise the said argument for the first time
before this Court.71
Petitioner’s belated reliance on breach of contract as her
cause of action cannot be sanctioned by this Court. Well-
settled is the rule that a party is not allowed to change the
theory of the case or the cause of action on appeal. Matters,
theories or arguments not submitted before the trial court
cannot be considered for the first time on appeal or
certiorari.72 When a party adopts a certain theory in the
court below, he will not be permitted to change his theory
on appeal for to permit him to do so would not only be
unfair to the other party but it would also be offensive to
the basic rules of fair play, justice and due process.73 Hence,
a party is bound by the theory he adopts and by the cause
of action he stands on and cannot be permitted after having
lost thereon to repudiate his theory and cause of action and
adopt another and seek to re-litigate the matter anew
either in the same forum or on appeal.74
In that regard, this Court finds it significant to take note of
the following differences between quasi-delict (culpa
aquilina) and breach of contract (culpa contractual). In
quasi-delict, negligence is direct, substantive and
independent, while in breach of contract, negligence is
merely incidental to the performance of the contractual
obligation; there is a pre-existing contract or obligation.75 In
quasi-delict, the defense of "good father of a family" is a
complete and proper defense insofar as parents, guardians
and employers are concerned, while in breach of contract,
such is not a complete and proper defense in the selection
and supervision of employees.76 In quasi- delict , there is no
presumption of negligence and it is incumbent upon the
injured party to prove the negligence of the defendant,
otherwise, the former’s complaint will be dismissed, while
in breach of contract, negligence is presumed so long as it
can be proved that there was breach of the contract and the
burden is on the defendant to prove that there was no
negligence in the carrying out of the terms of the contract;
the rule of respondeat superior is followed.77
Viewed from the foregoing, petitioner’s change of theory or
cause of action from quasi-delict to breach of contract only
on appeal would necessarily cause injustice to respondents
PHI and DTPCI. First, the latter will have no more
opportunity to present evidence to contradict petitioner’s
new argument. Second, the burden of proof will be shifted
from petitioner to respondents PHI and DTPCI. Petitioner’s
change of theory from quasi-delict to breach ofcontract
must be repudiated.
As petitioner’s cause of action is based on quasi-delict, it is
incumbent upon her to prove the presence of the following
requisites before respondents PHI and DTPCI can be held
liable, to wit: (a) damages suffered by the plaintiff; (b) fault
or negligence of the defendant, or some other person for
whose acts he must respond; and (c) the connection of
cause and effect between the fault or negligence of the
defendant and the damages incurred by the plaintiff.78
Further, since petitioner’s case is for quasi-delict , the
negligence or fault should be clearly established as it is the
basis of her action.79 The burden of proof is upon petitioner.
Section 1, Rule 131 of the Rules of Court provides that
"burden of proof is the duty of a party to present evidence
on the facts in issue necessary to establish his claim or
defense by the amount of evidence required by law." It is
then up for the plaintiff to establish his cause of action or
the defendant to establish his defense. Therefore, if the
plaintiff alleged in his complaint that he was damaged
because of the negligent acts of the defendant, he has the
burden of proving such negligence. It is even presumed that
 38
a person takes ordinary care of his concerns. The quantum
of proof required is preponderance of evidence.80
In this case, as found by the trial court and affirmed by the
Court of Appeals, petitioner utterly failed to prove the
alleged negligence of respondents PHI and DTPCI. Other
than petitioner’s self-serving testimony that all the lights in
the hotel’s swimming pool area were shut off and the door
was locked, which allegedly prompted her to find a way out
and in doing so a folding wooden counter top fell on her
head causing her injury, no other evidence was presented
to substantiate the same. Even her own companion during
the night of the accident inside the hotel’s swimming pool
area was never presented to corroborate her allegations.
Moreover, petitioner’s aforesaid allegations were
successfully rebutted by respondents PHI and DTPCI. Here,
we quote with conformity the observation of the trial court,
thus:
x x x Besides not being backed up by other supporting
evidence, said statement is being contradicted by the
testimony of Engineer Dante L. Costas,81 who positively
declared that it has been a normal practice of the Hotel
management not to put off the lights until 10:00P.M. in
order to allow the housekeepers to do the cleaning of the
pool’s surrounding, the toilets and the counters. It was also
confirmed that the lights were kept on for security reasons
and so that the people exercising in the nearby gym may be
able to have a good view of the swimming pool. This Court
also takes note that the nearby gymnasium was normally
open until 10:00 P.M. so that there was a remote possibility
the pool area was in complete darkness as was alleged by
herein petitioner, considering that the illumination which
reflected from the gym. Ergo, considering that the area
were sufficient (sic) illuminated when the alleged incident
occurred, there could have been no reason for the
petitioner to have met said accident, much less to have
been injured as a consequence thereof, if she only acted
with care and caution, which every ordinary person is
expected to do.82
More telling is the ratiocination of the Court of Appeals, to
wit:
Viewed from the foregoing, the question now is whether
respondents PHI and DTPCI and its employees were
negligent? We do not think so. Several factors militate
against petitioner’s contention.
One. Petitioner recognized the fact that the pool area’s
closing time is 7:00 p.m.. She, herself, admitted during her
testimony that she was well aware of the sign when she and
Delia entered the pool area. Hence, upon knowing, at the
outset, of the pool’s closing time, she took the risk of
overstaying when she decided to take shower and leave the
area beyond the closing hour. In fact, it was only upon the
advise of the pool attendants that she thereafter took her
shower.
Two. She admitted, through her certification, that she lifted
the wooden bar countertop, which then fell on to her head.
The admission in her certificate proves the circumstances
surrounding the occurrence that transpired on the night of
11 June 1995. This is contrary to her assertion in the
complaint and testimony that, while she was passing
through the counter door, she was suddenly knocked out by
a hard and heavy object. In view of the fact that she
admitted having lifted the countertop, it was her own
doing, therefore, that made the counter top fell on to her
head.
Three. We cannot likewise subscribe to petitioner’s
assertion that the pool area was totally dark in that she
herself admitted that she saw a telephone at the counter
after searching for one. It must be noted that petitioner and
Delia had walked around the pool area with ease since they
were able to proceed to the glass entrance door from the
shower room, and back to the counter area where the
telephone was located without encountering any untoward
incident. Otherwise, she could have easily stumbled over,
or slid, or bumped into something while searching for the
telephone. This negates her assertion that the pool area
was completely dark, thereby, totally impairing her vision.
xxxx
The aforementioned circumstances lead us to no other
conclusion than that the proximate and immediate cause of
the injury of petitioner was due to her own negligence.83
(Emphasis supplied).
Even petitioner’s assertion of negligence on the part of
respondents PHI and DTPCI in not rendering medical
assistance to her is preposterous. Her own Complaint
affirmed that respondents PHI and DTPCI afforded medical
assistance to her after she met the unfortunate accident
inside the hotel’s swimming pool facility. Below is the
portion of petitioner’s Complaint that would contradict her
very own statement, thus:
14. THAT, due to the unfortunate incident caused by
respondents PHI and DTPCI’s gross negligence despite
medical assistance, petitioner started to feel losing her
memory that greatly affected and disrupted the practice of
her chosen profession. x x x.84 (Emphasis supplied).
Also, as observed by the trial court, respondents PHI and
DTPCI, indeed, extended medical assistance to petitioner
but it was petitioner who refused the same. The trial court
stated, thus:
Further, herein petitioner’s asseverations that the Hotel
Management did not extend medical assistance to her in
the aftermath of the alleged accident is not true. Again, this
statement was not supported by any evidence other that
the sole and self-serving testimony of petitioner. Thus, this
Court cannot take petitioner’s statement as a gospel truth.
It bears stressing that the Hotel Management immediately
responded after it received notice of the incident. As a
matter of fact, Ms. Pearlie, the Hotel nurse, with two
chambermaids holding an ice bag placed on petitioner’s
head came to the petitioner to extend emergency
assistance when she was notified of the incident, but
petitioner merely asked for Hirudoid, saying she was fine,
and that she was a doctor and know how to take care of
herself. Also, the Hotel, through its in-house physician, Dr.
Dalumpines offered its medical services to petitioner when
 39
they met at the Hotel’s coffee shop, but again petitioner
declined the offer. Moreover, the Hotel as a show of
concern for the petitioner’s welfare, shouldered the
expenses for the MRI services performed on petitioner at
the Makati Medical Center. Emphatically, petitioner herself
cannot fault the Hotel for the injury she allegedly suffered
because she herself did not heed the warning at the pool to
the effect that it was only open from 7:00 to 7:00 P.M. Thus,
when the petitioner’s own negligence was the immediate
and proximate cause of his injury, shecannot recover
damages x x x.85
With the foregoing, the following were clearly established,
to wit: (1) petitioner stayed in the hotel’s swimming pool
facility beyond its closing hours; (2) she lifted the folding
wooden counter top that eventually hit her head; and (3)
respondents PHI and DTPCI extended medical assistance to
her. As such, no negligence can be attributed either to
respondents PHI and DTPCI or to their staff and/or
management. Since the question of negligence is one of
fact, this Court is bound by the said factual findings made
by the lower courts. It has been repeatedly held that the
trial court's factual findings, when affirmed by the Court of
Appeals, are conclusive and binding upon this Court, if they
are not tainted with arbitrariness or oversight of some fact
or circumstance of significance and influence. Petitioner has
not presented sufficient ground to warrant a deviation from
this rule.86
With regard to petitioner’s contention that the principles of
res ipsa loquitur and respondeat superior are applicable in
this case, this Court holds otherwise.
Res ipsa loquitur is a Latin phrase which literally means "the
thing or the transaction speaks for itself." It relates to the
fact of an injury that sets out an inference to the cause
thereof or establishes the plaintiff’s prima facie case. The
doctrine rests on inference and not on presumption. The
facts of the occurrence warrant the supposition of
negligence and they furnish circumstantial evidence of
negligence when direct evidence is lacking.87 Simply stated,
this doctrine finds no application if there is direct proof of
absence or presence of negligence. If there is sufficient
proof showing the conditions and circumstances under
which the injury occurred, then the creative reason for the
said doctrine disappears.88
Further, the doctrine of res ipsa loquitur applies where, (1)
the accident was of such character as to warrant an
inference that it would not have happened except for the
defendant’s negligence; (2) the accident must have been
caused by an agency or instrumentality within the exclusive
management or control of the person charged with the
negligence complained of; and (3) the accident must not
have been due to any voluntary action or contribution on
the part of the person injured.89
In the case at bench, even granting that respondents PHI
and DTPCI’s staff negligently turned off the lights and locked
the door, the folding wooden counter top would still not fall
on petitioner’s head had she not lifted the same. Although
the folding wooden counter top is within the exclusive
management or control of respondents PHI and DTPCI, the
falling of the same and hitting the head of petitioner was
not due to the negligence of the former. As found by both
lower courts, the folding wooden counter top did not fall on
petitioner’s head without any human intervention. Records
showed that petitioner lifted the said folding wooden
counter top that eventually fell and hit her head. The same
was evidenced by the, (1) 11 June 1995 handwritten
certification of petitioner herself; (2) her Letter dated 30
August 1995 addressed to Mr. Yoshikazu Masuda (Mr.
Masuda), General Manager of Dusit Hotel; and, (3)
Certification dated 7 September 1995 issued to her by Dr.
Dalumpines upon her request, which contents she never
questioned.
Here, we, respectively, quote the 11 June 1995 handwritten
certification of petitioner; her letter to Mr. Masuda dated
30 August 1995; and Dr. Dalumpines’ Certification dated 7
September 1995, to wit:
Petitioner’s 11 June 1995 Handwritten Certification:
I was requested by Dr. Dalumpines to write that I was
assured of assistance should it be necessary with regard an
accident at the pool. x x x The phone was in an enclosed
area on a chair – I lifted the wooden bar counter top which
then fell on my head producing a large hematoma x x x.90
Petitioner’s Letter addressed to Mr. Masuda dated 30
August 1995:
Dear Mr. Masuda,
xxxx
x x x We searched and saw a phone on a chair behind a
towel counter. However, in order to get behind the counter
I had to lift a hinged massive wooden section of the counter
which subsequently fell and knocked me on my head x x x.91
Dr. Dalumpines’ Certification dated 7 September 1995:
CERTIFICATION
This is to certify that as per Clinic records, duty nurse Pearlie
was called to attend to an accident at the poolside at
7:45PM on 11 June 1995.
Same records show that there, she saw petitioner who
claimed the folding countertop fell on her head when she
lifted it to enter the lifeguard’s counter to use the phone.
She asked for Hirudoid.
The same evening petitioner met Dr. Dalumpnes at the
Coffee Shop. After narrating the poolside incident and
declining Dr. Dalumpines’ offer of assistance, she reiterated
that the Hirudoid cream was enough and that
petitioner]being a doctor herself, knew her condition and
she was all right.
This certification is given upon the request of petitioner for
whatever purpose it may serve, 7 September 1995 at
Makati City.92 (Emphasis supplied).
 40
This Court is not unaware that in petitioner’s Complaint and
in her open court testimony, her assertion was, "while she
was passing through the counter door, she was suddenly
knocked out by a hard and heavy object, which turned out
to be the folding wooden counter top." However, in her
open court testimony, particularly during cross-
examination, petitioner confirmed that she made such
statement that "she lifted the hinge massive wooden
section of the counter near the swimming pool."93 In view
thereof, this Court cannot acquiesce petitioner’s theory
that her case is one of res ipsa loquitur as it was sufficiently
established how petitioner obtained that "bukol" or
"hematoma."
The doctrine of respondeat superior finds no application in
the absence of any showing that the employees of
respondents PHI and DTPCI were negligent. Since in this
case, the trial court and the appellate court found no
negligence on the part of the employees of respondents PHI
and DTPCI, thus, the latter cannot also be held liable for
negligence and be made to pay the millions of pesos
damages prayed for by petitioner.
The issue on whether petitioner’s debilitating and
permanent injuries were the result of the accident she
suffered at the hotel’s swimming pool area on 11 June 1995
is another question of fact, which is beyond the function of
this Court to resolve. More so, this issue has already been
properly passed upon by the trial court and the Court of
Appeals. To repeat, this Court is bound by the factual
findings of the lower courts and there is no cogent reason
to depart from the said rule.
The following observations of the trial court are controlling
on this matter:
Firstly, petitioner had a past medical history which might
have been the cause of her recurring brain injury.
Secondly, the findings of Dr. Perez did not prove a causal
relation between the 11 June 1995 accident and the brain
damage suffered by petitioner. Dr. Perez himself testified
that the symptoms being experienced by petitioner might
have been due to factors other than the head trauma she
allegedly suffered. Emphasis must be given to the fact that
petitioner had been suffering from different kinds of brain
problems since she was 18 years old, which may have been
the cause of the recurring symptoms of head injury she is
experiencing at present.
Thirdly, Dr. Sanchez’s testimony cannot be relied upon since
she testified on the findings and conclusions of persons who
were never presented in court. Ergo, her testimony thereon
was hearsay. A witness can testify only with regard to facts
of which they have personal knowledge. Testimonial or
documentary evidence is hearsay if it is based, not on the
personal knowledge of the witness, but on the knowledge
of some other person not on the witness stand.
Consequently, hearsay evidence -- whether objected to or
not -- has no probative value.94
Fourthly, the medical reports/evaluations/certifications
issued by myriads of doctors whom petitioner sought for
examination or treatment were neither identified nor
testified to by those who issued them. Being deemed as
hearsay, they cannot be given probative value.1âwphi1
The aforesaid medical reports/evaluations/certifications of
different doctors in favor of petitioner cannot be given
probative value and their contents cannot be deemed to
constitute proof of the facts stated therein. It must be
stressed that a document or writing which is admitted not
as independent evidence but merely as part of the
testimony of a witness does not constitute proof of the facts
related therein.95 In the same vein, the medical certificate
which was identified and interpreted in court by another
doctor was not accorded probative value because the
doctor who prepared it was not presented for its
identification. Similarly, in this case, since the doctors who
examined petitioner were not presented to testify on their
findings, the medical certificates issued on their behalf and
identified by another doctor cannot be admitted as
evidence. Since a medical certificate involves an opinion of
one who must first be established as an expert witness, it
cannot be given weight or credit unless the doctor who
issued it is presented in court to show his qualifications.96
Thus, an unverified and unidentified private document
cannot be accorded probative value. It is precluded because
the party against whom it is presented is deprived of the
right and opportunity to cross-examine the person to whom
the statements or writings are attributed. Its executor or
author should be presented as a witness to provide the
other party to the litigation the opportunity to question its
contents. Being mere hearsay evidence, failure to present
the author of the letter renders its contents suspect and of
no probative value.97
All told, in the absence of negligence on the part of
respondents PHI and DTPCI, as well as their management
and staff, they cannot be made Iiable to pay for the millions
of damages prayed for by the petitioner. Since respondents
PHI and DTPCI arc not liable, it necessarily follows that
respondent First Lepanto cannot also be made liable under
the contract or insurance.
WHEREFORE, premises considered, the Decision and
Resolution or the Court of Appeals in CA-G.R. CV No. 87065
dated 9 August 2007 and 5 November 2007, respectively,
are hereby AFFIRMED. Costs against petitioner.
SO ORDERED.
KINDS OF NEGLIGENCE
1. CULPA CONTRACTUAL
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. (1101)
Art. 1171. Responsibility arising from fraud is demandable
in all obligations. Any waiver of an action for future fraud is
void. (1102a)
Art. 1172. Responsibility arising from negligence in the
performance of every kind of obligation is also demandable,
 41
but such liability may be regulated by the courts, according
to the circumstances. (1103)
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 the 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. (1104a)
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. (1105a)
2. CULPA AQUILIANA
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. (1902a)
3. CRIMINAL NEGLIGENCE
Art. 365. Imprudence and negligence. — Any person who,
by reckless imprudence, shall commit any act which, had it
been intentional, would constitute a grave felony, shall
suffer the penalty of arresto mayor in its maximum period
to prision correccional in its medium period; if it would have
constituted a less grave felony, the penalty of arresto mayor
in its minimum and medium periods shall be imposed; if it
would have constituted a light felony, the penalty of arresto
menor in its maximum period shall be imposed.
Any person who, by simple imprudence or negligence, shall
commit an act which would otherwise constitute a grave
felony, shall suffer the penalty of arresto mayor in its
medium and maximum periods; if it would have constituted
a less serious felony, the penalty of arresto mayor in its
minimum period shall be imposed.
When the execution of the act covered by this article shall
have only resulted in damage to the property of another,
the offender shall be punished by a fine ranging from an
amount equal to the value of said damages to three times
such value, but which shall in no case be less than twenty-
five pesos.
A fine not exceeding two hundred pesos and censure shall
be imposed upon any person who, by simple imprudence or
negligence, shall cause some wrong which, if done
maliciously, would have constituted a light felony.
In the imposition of these penalties, the court shall exercise
their sound discretion, without regard to the rules
prescribed in Article sixty-four.chanrobles virtual law library
The provisions contained in this article shall not be
applicable:
1. When the penalty provided for the offense is equal to or
lower than those provided in the first two paragraphs of this
article, in which case the court shall impose the penalty next
lower in degree than that which should be imposed in the
period which they may deem proper to apply.
2. When, by imprudence or negligence and with violation of
the Automobile Law, to death of a person shall be caused,
in which case the defendant shall be punished by prision
correccional in its medium and maximum periods.
Reckless imprudence consists in voluntary, but without
malice, doing or falling to do an act from which material
damage results by reason of inexcusable lack of precaution
on the part of the person performing of failing to perform
such act, taking into consideration his employment or
occupation, degree of intelligence, physical condition and
other circumstances regarding persons, time and place.
Simple imprudence consists in the lack of precaution
displayed in those cases in which the damage impending to
be caused is not immediate nor the danger clearly manifest.
The penalty next higher in degree to those provided for in
this article shall be imposed upon the offender who fails to
lend on the spot to the injured parties such help as may be
in this hand to give. (As amended by R.A. 1790, approved
June 21, 1957).
TEST OF NEGLIGENCE
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 the 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. (1104a)
***Art. 1171. Responsibility arising from fraud is
demandable in all obligations. Any waiver of an action for
future fraud is void.
Art. 2201. In contracts and quasi-contracts, the damages for
which the obligor who acted in good faith is liable shall be
those that are the natural and probable consequences of
the breach of the obligation, and which the parties have
foreseen or could have reasonably foreseen at the time the
obligation was constituted.
In case of fraud, bad faith, malice or wanton attitude, the
obligor shall be responsible for all damages which may be
reasonably attributed to the non-performance of the
obligation.
[G.R. No. 129792. December 21, 1999]
JARCO MARKETING CORPORATION, LEONARDO KONG,
JOSE TIOPE and ELISA PANELO, petitioners, vs.
 42
HONORABLE COURT OF APPEALS, CONRADO C. AGUILAR
and CRISELDA R. AGUILAR, respondents.
DECISION
DAVIDE, JR., C.J.:
In this petition for review on certiorari under Rule
45 of the Rules of Court, petitioners seek the reversal
of the 17 June 1996 decisioni of the Court of Appeals in
C.A. G.R. No. CV 37937 and the resolutioniidenying
their motion for reconsideration. The assailed decision
set aside the 15 January 1992 judgment of the Regional
Trial Court (RTC), Makati City, Branch 60 in Civil Case
No. 7119 and ordered petitioners to pay damages and
attorneys fees to private respondents Conrado and
Criselda (CRISELDA) Aguilar.
Petitioner Jarco Marketing Corporation is the
owner of Syvels Department Store, Makati City.
Petitioners Leonardo Kong, Jose Tiope and Elisa Panelo
are the stores branch manager, operations manager,
and supervisor, respectively. Private respondents are
spouses and the parents of Zhieneth Aguilar
(ZHIENETH).
In the afternoon of 9 May 1983, CRISELDA and
ZHIENETH were at the 2nd floor of Syvels Department
Store, Makati City. CRISELDA was signing her credit
card slip at the payment and verification counter when
she felt a sudden gust of wind and heard a loud thud.
She looked behind her. She then beheld her daughter
ZHIENETH on the floor, her young body pinned by the
bulk of the stores gift-wrapping counter/structure.
ZHIENETH was crying and screaming for help. Although
shocked, CRISELDA was quick to ask the assistance of
the people around in lifting the counter and retrieving
ZHIENETH from the floor.iii
ZHIENETH was quickly rushed to the Makati
Medical Center where she was operated on. The next
day ZHIENETH lost her speech and thereafter
communicated with CRISELDA by writing on a magic
slate. The injuries she sustained took their toil on her
young body. She died fourteen (14) days after the
accident or on 22 May 1983, on the hospital bed. She
was six years old.iv
The cause of her death was attributed to the
injuries she sustained. The provisional medical
certificatev issued by ZHIENETHs attending doctor
described the extent of her injuries:
Diagnoses:
1. Shock, severe, sec. to intra-abdominal injuries
due to blunt injury
2. Hemorrhage, massive, intraperitoneal sec. to
laceration, (L) lobe liver
3. Rupture, stomach, anterior & posterior walls
4. Complete transection, 4th position, duodenum
5. Hematoma, extensive, retroperitoneal
6. Contusion, lungs, severe
CRITICAL
After the burial of their daughter, private
respondents demanded upon petitioners the
reimbursement of the hospitalization, medical bills and
wake and funeral expensesvi which they had incurred.
Petitioners refused to pay. Consequently, private
respondents filed a complaint for damages, docketed
as Civil Case No. 7119 wherein they sought the
payment of P157,522.86 for actual damages, P300,000
for moral damages, P20,000 for attorneys fees and an
unspecified amount for loss of income and exemplary
damages.
In their answer with counterclaim, petitioners
denied any liability for the injuries and consequent
death of ZHIENETH. They claimed that CRISELDA was
negligent in exercising care and diligence over her
daughter by allowing her to freely roam around in a
store filled with glassware and appliances. ZHIENETH
too, was guilty of contributory negligence since she
climbed the counter, triggering its eventual collapse on
her. Petitioners also emphasized that the counter was
made of sturdy wood with a strong support; it never
fell nor collapsed for the past fifteen years since its
construction.
Additionally, petitioner Jarco Marketing
Corporation maintained that it observed the diligence
of a good father of a family in the selection, supervision
and control of its employees. The other petitioners
likewise raised due care and diligence in the
performance of their duties and countered that the
complaint was malicious for which they suffered
besmirched reputation and mental anguish. They
sought the dismissal of the complaint and an award of
moral and exemplary damages and attorneys fees in
their favor.
In its decisionvii the trial court dismissed the
complaint and counterclaim after finding that the
preponderance of the evidence favored petitioners. It
ruled that the proximate cause of the fall of the
counter on ZHIENETH was her act of clinging to it. It
believed petitioners witnesses who testified that
ZHIENETH clung to the counter, afterwhich the
structure and the girl fell with the structure falling on
top of her, pinning her stomach. In contrast, none of
private respondents witnesses testified on how the
counter fell. The trial court also held that CRISELDAs
negligence contributed to ZHIENETHs accident.
In absolving petitioners from any liability, the trial
court reasoned that the counter was situated at the
end or corner of the 2nd floor as a precautionary
measure hence, it could not be considered as an
attractive nuisance.viii The counter was higher than
ZHIENETH. It has been in existence for fifteen years. Its
structure was safe and well-balanced. ZHIENETH,
therefore, had no business climbing on and clinging to
it.
Private respondents appealed the decision,
attributing as errors of the trial court its findings that:
(1) the proximate cause of the fall of the counter was
ZHIENETHs misbehavior; (2) CRISELDA was negligent in
her care of ZHIENETH; (3) petitioners were not
negligent in the maintenance of the counter; and (4)
 43
petitioners were not liable for the death of ZHIENETH.
Further, private respondents asserted that
ZHIENETH should be entitled to the conclusive
presumption that a child below nine (9) years is
incapable of contributory negligence. And even if
ZHIENETH, at six (6) years old, was already capable of
contributory negligence, still it was physically
impossible for her to have propped herself on the
counter. She had a small frame (four feet high and
seventy pounds) and the counter was much higher and
heavier than she was. Also, the testimony of one of the
stores former employees, Gerardo Gonzales, who
accompanied ZHIENETH when she was brought to the
emergency room of the Makati Medical Center belied
petitioners theory that ZHIENETH climbed the counter.
Gonzales claimed that when ZHIENETH was asked by
the doctor what she did, ZHIENETH replied, [N]othing,
I did not come near the counter and the counter just
fell on me.ix Accordingly, Gonzales testimony on
ZHIENETHs spontaneous declaration should not only
be considered as part of res gestae but also accorded
credit.
Moreover, negligence could not be imputed to
CRISELDA for it was reasonable for her to have let go
of ZHIENETH at the precise moment that she was
signing the credit card slip.
Finally, private respondents vigorously
maintained that the proximate cause of ZHIENETHs
death, was petitioners negligence in failing to institute
measures to have the counter permanently nailed.
On the other hand, petitioners argued that
private respondents raised purely factual issues which
could no longer be disturbed. They explained that
ZHIENETHs death while unfortunate and tragic, was an
accident for which neither CRISELDA nor even
ZHIENETH could entirely be held faultless and
blameless. Further, petitioners adverted to the trial
courts rejection of Gonzales testimony as unworthy of
credence.
As to private respondents claim that the counter
should have been nailed to the ground, petitioners
justified that it was not necessary. The counter had
been in existence for several years without any prior
accident and was deliberately placed at a corner to
avoid such accidents. Truth to tell, they acted without
fault or negligence for they had exercised due diligence
on the matter. In fact, the criminal casex for homicide
through simple negligence filed by private respondents
against the individual petitioners was dismissed; a
verdict of acquittal was rendered in their favor.
The Court of Appeals, however, decided in favor
of private respondents and reversed the appealed
judgment. It found that petitioners were negligent in
maintaining a structurally dangerous counter. The
counter was shaped like an inverted Lxi with a top
wider than the base. It was top heavy and the weight
of the upper portion was neither evenly distributed nor
supported by its narrow base. Thus, the counter was
defective, unstable and dangerous; a downward
pressure on the overhanging portion or a push from
the front could cause the counter to fall. Two former
employees of petitioners had already previously
brought to the attention of the management the
danger the counter could cause. But the latter ignored
their concern. The Court of Appeals faulted the
petitioners for this omission, and concluded that the
incident that befell ZHIENETH could have been avoided
had petitioners repaired the defective counter. It was
inconsequential that the counter had been in use for
some time without a prior incident.
The Court of Appeals declared that ZHIENETH,
who was below seven (7) years old at the time of the
incident, was absolutely incapable of negligence or
other tort. It reasoned that since a child under nine (9)
years could not be held liable even for an intentional
wrong, then the six-year old ZHIENETH could not be
made to account for a mere mischief or reckless act. It
also absolved CRISELDA of any negligence, finding
nothing wrong or out of the ordinary in momentarily
allowing ZHIENETH to walk while she signed the
document at the nearby counter.
The Court of Appeals also rejected the
testimonies of the witnesses of petitioners. It found
them biased and prejudiced. It instead gave credit to
the testimony of disinterested witness Gonzales. The
Court of Appeals then awarded P99,420.86 as actual
damages, the amount representing the hospitalization
expenses incurred by private respondents as
evidenced by the hospital's statement of account.xii It
denied an award for funeral expenses for lack of proof
to substantiate the same. Instead, a compensatory
damage of P50,000 was awarded for the death of
ZHIENETH.
We quote the dispositive portion of the assailed
decision,xiii thus:
WHEREFORE, premises considered, the judgment
of the lower court is SET ASIDE and another one is
entered against [petitioners], ordering them to pay
jointly and severally unto [private respondents] the
following:
1. P50,000.00 by way of compensatory damages
for the death of Zhieneth Aguilar, with legal
interest (6% p.a.) from 27 April 1984;
2. P99,420.86 as reimbursement for
hospitalization expenses incurred; with legal
interest (6% p.a.) from 27 April 1984;
3. P100,000.00 as moral and exemplary
damages;
4. P20,000.00 in the concept of attorneys fees;
and
5. Costs.
Private respondents sought a reconsideration of
the decision but the same was denied in the Court of
Appeals resolutionxiv of 16 July 1997.
Petitioners now seek the reversal of the Court of
Appeals decision and the reinstatement of the
judgment of the trial court. Petitioners primarily argue
that the Court of Appeals erred in disregarding the
factual findings and conclusions of the trial court. They
 44
stress that since the action was based on tort, any
finding of negligence on the part of the private
respondents would necessarily negate their claim for
damages, where said negligence was the proximate
cause of the injury sustained. The injury in the instant
case was the death of ZHIENETH. The proximate cause
was ZHIENETHs act of clinging to the counter. This act
in turn caused the counter to fall on her. This and
CRISELDAs contributory negligence, through her
failure to provide the proper care and attention to her
child while inside the store, nullified private
respondents claim for damages. It is also for these
reasons that parents are made accountable for the
damage or injury inflicted on others by their minor
children. Under these circumstances, petitioners could
not be held responsible for the accident that befell
ZHIENETH.
Petitioners also assail the credibility of Gonzales
who was already separated from Syvels at the time he
testified; hence, his testimony might have been
tarnished by ill-feelings against them.
For their part, private respondents principally
reiterated their arguments that neither ZHIENETH nor
CRISELDA was negligent at any time while inside the
store; the findings and conclusions of the Court of
Appeals are substantiated by the evidence on record;
the testimony of Gonzales, who heard ZHIENETH
comment on the incident while she was in the
hospitals emergency room should receive credence;
and finally, ZHIENETHs part of the res gestae
declaration that she did nothing to cause the heavy
structure to fall on her should be considered as the
correct version of the gruesome events.
We deny the petition.
The two issues to be resolved are: (1) whether the
death of ZHIENETH was accidental or attributable to
negligence; and (2) in case of a finding of negligence,
whether the same was attributable to private
respondents for maintaining a defective counter or to
CRISELDA and ZHIENETH for failing to exercise due and
reasonable care while inside the store premises.
An accident pertains to an unforeseen event in
which no fault or negligence attaches to the
defendant.xv It is a fortuitous circumstance, event or
happening; an event happening without any human
agency, or if happening wholly or partly through
human agency, an event which under the
circumstances is unusual or unexpected by the person
to whom it happens.xvi
On the other hand, negligence is the omission to
do something which a reasonable man, guided by
those considerations which ordinarily regulate the
conduct of human affairs, would do, or the doing of
something which a prudent and reasonable man would
not do.xvii Negligence is the failure to observe, for the
protection of the interest of another person, that
degree of care, precaution and vigilance which the
circumstances justly demand, whereby such other
person suffers injury.xviii
Accident and negligence are intrinsically
contradictory; one cannot exist with the other.
Accident occurs when the person concerned is
exercising ordinary care, which is not caused by fault
of any person and which could not have been
prevented by any means suggested by common
prudence.xix
The test in determining the existence of
negligence is enunciated in the landmark case of Picart
v. Smith,xx thus: Did the defendant in doing the alleged
negligent act use that reasonable care and caution
which an ordinarily prudent person would have used in
the same situation? If not, then he is guilty of
negligence.xxi
We rule that the tragedy which befell ZHIENETH
was no accident and that ZHIENETHs death could only
be attributed to negligence.
We quote the testimony of Gerardo Gonzales
who was at the scene of the incident and accompanied
CRISELDA and ZHIENETH to the hospital:
Q While at the Makati Medical Center, did you
hear or notice anything while the child was
being treated?
A At the emergency room we were all
surrounding the child. And when the doctor
asked the child what did you do, the child said
nothing, I did not come near the counter and
the counter just fell on me.
Q (COURT TO ATTY. BELTRAN)
You want the words in Tagalog to be
translated?
ATTY. BELTRAN
Yes, your Honor.
COURT
Granted. Intercalate wala po, hindi po ako
lumapit doon. Basta bumagsak.xxii
This testimony of Gonzales pertaining to
ZHIENETHs statement formed (and should be admitted
as) part of the res gestae under Section 42, Rule 130 of
the Rules of Court, thus:
Part of res gestae. Statements made by a person
while a startling occurrence is taking place or
immediately prior or subsequent thereto with respect
to the circumstances thereof, may be given in evidence
as part of the res gestae. So, also, statements
accompanying an equivocal act material to the issue,
and giving it a legal significance, may be received as
part of the res gestae.
It is axiomatic that matters relating to
declarations of pain or suffering and statements made
to a physician are generally considered declarations
and admissions.xxiii All that is required for their
admissibility as part of the res gestae is that they be
made or uttered under the influence of a startling
event before the declarant had the time to think and
concoct a falsehood as witnessed by the person who
testified in court. Under the circumstances thus
 45
described, it is unthinkable for ZHIENETH, a child of
such tender age and in extreme pain, to have lied to a
doctor whom she trusted with her life. We therefore
accord credence to Gonzales testimony on the matter,
i.e., ZHIENETH performed no act that facilitated her
tragic death. Sadly, petitioners did, through their
negligence or omission to secure or make stable the
counters base.
Gonzales earlier testimony on petitioners
insistence to keep and maintain the structurally
unstable gift-wrapping counter proved their
negligence, thus:
Q When you assumed the position as gift
wrapper at the second floor, will you please describe
the gift wrapping counter, were you able to examine?
A Because every morning before I start working
I used to clean that counter and since it is not nailed
and it was only standing on the floor, it was shaky.
xxx
Q Will you please describe the counter at 5:00
oclock [sic] in the afternoon on [sic] May 9
1983?
A At that hour on May 9, 1983, that counter was
standing beside the verification counter. And
since the top of it was heavy and considering
that it was not nailed, it can collapse at
anytime, since the top is heavy.
xxx
Q And what did you do?
A I informed Mr. Maat about that counter which
is [sic] shaky and since Mr. Maat is fond of
putting display decorations on tables, he even
told me that I would put some decorations.
But since I told him that it not [sic] nailed and
it is shaky he told me better inform also the
company about it. And since the company did
not do anything about the counter, so I also
did not do anything about the counter.xxiv
[Emphasis supplied]
Ramon Guevarra, another former employee,
corroborated the testimony of Gonzales, thus:
Q Will you please described [sic] to the
honorable Court the counter where you were
assigned in January 1983?
xxx
A That counter assigned to me was when my
supervisor ordered me to carry that counter to
another place. I told him that the counter
needs nailing and it has to be nailed because it
might cause injury or accident to another since
it was shaky.
Q When that gift wrapping counter was
transferred at the second floor on February
12, 1983, will you please describe that to the
honorable Court?
A I told her that the counter wrapper [sic] is
really in good [sic] condition; it was shaky. I
told her that we had to nail it.
Q When you said she, to whom are you referring
to [sic]?
A I am referring to Ms. Panelo, sir.
Q And what was the answer of Ms. Panelo when
you told her that the counter was shaky?
A She told me Why do you have to teach me.
You are only my subordinate and you are to
teach me? And she even got angry at me when
I told her that.
xxx
Q From February 12, 1983 up to May 9, 1983,
what if any, did Ms. Panelo or any employee
of the management do to that (sic)
xxx
Witness:
None, sir. They never nailed the counter. They
only nailed the counter after the accident
happened.xxv [Emphasis supplied]
Without doubt, petitioner Panelo and another
store supervisor were personally informed of the
danger posed by the unstable counter. Yet, neither
initiated any concrete action to remedy the situation
nor ensure the safety of the stores employees and
patrons as a reasonable and ordinary prudent man
would have done. Thus, as confronted by the situation
petitioners miserably failed to discharge the due
diligence required of a good father of a family.
On the issue of the credibility of Gonzales and
Guevarra, petitioners failed to establish that the
formers testimonies were biased and tainted with
partiality. Therefore, the allegation that Gonzales and
Guevarras testimonies were blemished by ill feelings
against petitioners since they (Gonzales and Guevarra)
were already separated from the company at the time
their testimonies were offered in court was but mere
speculation and deserved scant consideration.
It is settled that when the issue concerns the
credibility of witnesses, the appellate courts will not as
a general rule disturb the findings of the trial court,
which is in a better position to determine the same.
The trial court has the distinct advantage of actually
hearing the testimony of and observing the
deportment of the witnesses.xxvi However, the rule
admits of exceptions such as when its evaluation was
reached arbitrarily or it overlooked or failed to
appreciate some facts or circumstances of weight and
substance which could affect the result of the case.xxvii
In the instant case, petitioners failed to bring their
claim within the exception.
Anent the negligence imputed to ZHIENETH, we
apply the conclusive presumption that favors children
below nine (9) years old in that they are incapable of
contributory negligence. In his book,xxviii former Judge
Cezar S. Sangco stated:
 46
In our jurisdiction, a person under nine years of
age is conclusively presumed to have acted without
discernment, and is, on that account, exempt from
criminal liability. The same presumption and a like
exemption from criminal liability obtains in a case of a
person over nine and under fifteen years of age, unless
it is shown that he has acted with discernment. Since
negligence may be a felony and a quasi-delict and
required discernment as a condition of liability, either
criminal or civil, a child under nine years of age is, by
analogy, conclusively presumed to be incapable of
negligence; and that the presumption of lack of
discernment or incapacity for negligence in the case of
a child over nine but under fifteen years of age is a
rebuttable one, under our law. The rule, therefore, is
that a child under nine years of age must be
conclusively presumed incapable of contributory
negligence as a matter of law. [Emphasis supplied]
Even if we attribute contributory negligence to
ZHIENETH and assume that she climbed over the
counter, no injury should have occurred if we accept
petitioners theory that the counter was stable and
sturdy. For if that was the truth, a frail six-year old
could not have caused the counter to collapse. The
physical analysis of the counter by both the trial court
and Court of Appeals and a scrutiny of the
evidencexxixon record reveal otherwise, i.e., it was not
durable after all. Shaped like an inverted L, the counter
was heavy, huge, and its top laden with formica. It
protruded towards the customer waiting area and its
base was not secured.xxx
CRISELDA too, should be absolved from any
contributory negligence. Initially, ZHIENETH held on to
CRISELDAs waist, later to the latters hand.xxxi CRISELDA
momentarily released the childs hand from her clutch
when she signed her credit card slip. At this precise
moment, it was reasonable and usual for CRISELDA to
let go of her child. Further, at the time ZHIENETH was
pinned down by the counter, she was just a foot away
from her mother; and the gift-wrapping counter was
just four meters away from CRISELDA.xxxii The time and
distance were both significant. ZHIENETH was near her
mother and did not loiter as petitioners would want to
impress upon us. She even admitted to the doctor who
treated her at the hospital that she did not do
anything; the counter just fell on her.
WHEREFORE, in view of all the foregoing, the
instant petition is DENIED and the challenged decision
of the Court of Appeals of 17 June 1996 in C.A. G.R. No.
CV 37937 is hereby AFFIRMED.
Costs against petitioners.
SO ORDERED.
G.R. No. L-7664 August 29, 1958
MR. AND MRS. AMADOR C. ONG, plaintiffs-appellants,
vs.
METROPOLITAN WATER DISTRICT, defendant-appellee.
BAUTISTA ANGELO, J.:
Plaintiffs spouses seek to recover from defendant, a
government-owned corporation, the sum of P50,000 as
damages, P5,000 as funeral expenses, and P11,000 as
attorneys' fees, for the death of their son Dominador Ong
in one of the swimming pools operated by defendant.
Defendant admits the fact that plaintiffs' son was drowned
in one of its swimming pools but avers that his death was
caused by his own negligence or by unavoidable accident.
Defendant also avers that it had exercised due diligence in
the selection of, and supervision over, its employees and
that it had observed the diligence required by law under the
circumstances.
After trial, the lower court found that the action of plaintiffs
is untenable and dismissed the complaint without
pronouncement as to costs. Plaintiffs took the case on
appeal directly to this Court because the amount involved
exceeds the sum of P50,000.
Defendant owns and operates three recreational swimming
pools at its Balara filters, Diliman, Quezon City, to which
people are invited and for which a nominal fee of P0.50 for
adults and P0.20 for children is charged. The main pool it
between two small pools of oval shape known as the
"Wading pool" and the "Beginners Pool." There are diving
boards in the big pools and the depths of the water at
different parts are indicated by appropriate marks on the
wall. The care and supervision of the pools and the users
thereof is entrusted to a recreational section composed of
Simeon Chongco as chief, Armando Rule, a male nurse, and
six lifeguards who had taken the life-saving course given by
the Philippine Red Cross at the YMCA in Manila. For the
safety of its patrons, defendant has provided the pools with
a ring buoy, toy roof, towing line, saving kit and a
resuscitator. There is also a sanitary inspector who is in
charge of a clinic established for the benefit of the patrons.
Defendant has also on display in a conspicuous place certain
rules and regulations governing the use of the pools, one of
which prohibits the swimming in the pool alone or without
any attendant. Although defendant does not maintain a
full-time physician in the swimming pool compound, it has
however a nurse and a sanitary inspector ready to
administer injections or operate the oxygen resuscitator if
the need should arise.
In the afternoon of July 5, 1952, at about 1:00 o'clock,
Dominador Ong, a 14-year old high school student and boy
scout, and his brothers Ruben and Eusebio, went to
defendant's swimming pools. This was not the first time
that the three brothers had gone to said natatorium for
they had already been there four or five times before. They
arrived at the natatorium at about 1:45 p.m. After paying
the requisite admission fee, they immediately went to one
of the small pools where the water was shallow. At about
4:35 p.m., Dominador Ong told his brothers that he was
going to the locker room in an adjoining building to drink a
bottle of coke. Upon hearing this, Ruben and Eusebio went
to the bigger pool leaving Dominador in the small pool and
so they did not see the latter when he left the pool to get a
bottle of coke. In that afternoon, there were two lifeguards
on duty in the pool compound, namely, Manuel Abaño and
 47
Mario Villanueva. The tour of duty of Abaño was from 8:00
to 12:00 in the morning and from 2:00 to 6:00 in the
afternoon, and of Villanueva from 7:30 to 11:30 a.m. and
from 12:30 to 4:30 p.m. Between 4:00 to 5:00 that
afternoon, there were about twenty bathers inside the pool
area and Manuel Abaño was going around the pools to
observe the bathers in compliance with the instructions of
his chief.
Between 4:40 to 4:45 p.m., some boys who were in the pool
area informed a bather by the name of Andres Hagad, Jr.,
that somebody was swimming under water for quite a long
time. Another boy informed lifeguard Manuel Abaño of the
same happening and Abaño immediately jumped into the
big swimming pool and retrieved the apparently lifeless
body of Dominador Ong from the bottom. The body was
placed at the edge of the pool and Abaño immediately
applied manual artificial respiration. Soon after, male nurse
Armando Rule came to render assistance, followed by
sanitary inspector Iluminado Vicente who, after being called
by phone from the clinic by one of the security guards,
boarded a jeep carrying with him the resuscitator and a
medicine kit, and upon arriving he injected the boy with
camphorated oil. After the injection, Vicente left on a jeep
in order to fetch Dr. Ayuyao from the University of the
Philippines. Meanwhile, Abaño continued the artificial
manual respiration, and when this failed to revive him, they
applied the resuscitator until the two oxygen tanks were
exhausted. Not long thereafter, Dr. Ayuyao arrived with
another resuscitator, but the same became of no use
because he found the boy already dead. The doctor ordered
that the body be taken to the clinic.
In the evening of the same day, July 5, 1952, the incident
was investigated by the Police Department of Quezon City
and in the investigation boys Ruben Ong and Andres Hagad,
Jr. gave written statements. On the following day, July 6,
1952, an autopsy was performed by Dr. Enrique V. de los
Santos, Chief, Medico Legal Division, National Bureau of
Investigation, who found in the body of the deceased the
following: an abrasion on the right elbow lateral aspect;
contusion on the right forehead; hematoma on the scalp,
frontal region, right side; a congestion in the brain with
petechial subcortical hemorrhage, frontal lobe; cyanosis on
the face and on the nails; the lung was soggy with fine froth
in the bronchioles; dark fluid blood in the heart; congestion
in the visceral organs, and brownish fluid in the stomach.
The death was due to asphyxia by submersion in water.
The issue posed in this appeal is whether the death of minor
Dominador Ong can be attributed to the negligence of
defendant and/or its employees so as to entitle plaintiffs to
recover damages.
The present action is governed by Article 2176 in relation to
Article 2080 of the new Civil Code. The first article provides
that "whoever by act or omission causes damage to
another, there being fault or negligence, is obliged to pay
for the damages done." Such fault or negligence is called
quasi-delict. Under the second article, this obligation is
demandable not only for one's own acts or omissions but
also for those of persons for whom one is responsible. In
addition, we may quote the following authorities cited in
the decision of the trial court:
"The rule is well settled that the owners of resorts
to which people generally are expressly or by
implication invited are legally bound to exercise
ordinary care and prudence in the management
and maintenance of such resorts, to the end of
making them reasonably safe for visitors" (Larkin
vs. Saltair Beach Co., 30 Utah 86, 83 Pac. 686).
"Although the proprietor of a natatorium is liable
for injuries to a patron, resulting from lack of
ordinary care in providing for his safety, without
the fault of the patron, he is not, however, in any
sense deemed to be the insurer of the safety of
patrons. And the death of a patron within his
premises does not cast upon him the burden of
excusing himself from any presumption of
negligence" (Bertalot vs. Kinnare. 72 Ill. App. 52, 22
A. L. R. 635; Flora vs. Bimini Water Co., 161 Cal. 495,
119 Pac. 661). Thus in Bertalot vs. Kinnare, supra, it
was held that there could be no recovery for the
death by drowning of a fifteen-year boy in
defendant's natatorium, where it appeared merely
that he was lastly seen alive in water at the shallow
end of the pool, and some ten or fifteen minutes
later was discovered unconscious, and perhaps
lifeless, at the bottom of the pool, all efforts to
resuscitate him being without avail.
Since the present action is one for damages founded on
culpable negligence, the principle to be observed is that the
person claiming damages has the burden of proving that the
damage is caused by the fault or negligence of the person
from whom the damage is claimed, or of one of his
employees (Walter A. Smith & Co. vs. Cadwallader Gibson
Lumber Co., 55 Phil., 517). The question then that arises is:
Have appellants established by sufficient evidence the
existence of fault or negligence on the part of appellee so
as to render it liable for damages for the death of
Dominador Ong?
There is no question that appellants had striven to prove
that appellee failed to take the necessary precaution to
protect the lives of its patrons by not placing at the
swimming pools efficient and competent employees who
may render help at a moment's notice, and they ascribed
such negligence to appellee because the lifeguard it had on
the occasion minor Ong was drowning was not available or
was attending to something else with the result that his
help came late. Thus, appellants tried to prove through the
testimony of Andres Hagad, Jr. and Ruben Ong that when
Eusebio Ong and Hagad, Jr. detected that there was a
drowning person in the bottom of the big swimming pool
and shouted to the lifeguard for help, lifeguard Manuel
Abaño did not immediately respond to the alarm and it was
only upon the third call that he threw away the magazine
he was reading and allowed three or four minutes to elapse
before retrieving the body from the water. This negligence
of Abaño, they contend, is attributable to appellee.
But the claim of these two witnesses not only was
vehemently denied by lifeguard Abaño, but is belied by the
written statements given by them in the investigation
conducted by the Police Department of Quezon City
approximately three hours after the happening of the
 48
accident. Thus, these two boys admitted in the investigation
that they narrated in their statements everything they knew
of the accident, but, as found by the trial, nowhere in said
statements do they state that the lifeguard was chatting
with the security guard at the gate of the swimming pool or
was reading a comic magazine when the alarm was given
for which reason he failed to immediately respond to the
alarm. On the contrary, what Ruben Ong particularly
emphasized therein was that after the lifeguard heard the
shouts for help, the latter immediately dived into the pool
to retrieve the person under water who turned out to be his
brother. For this reason, the trial court made this
conclusion: "The testimony of Ruben Ong and Andres
Hagad, Jr. as to the alleged failure of the lifeguard Abaño to
immediately respond to their call may therefore be
disregarded because they are belied by their written
statements. (Emphasis supplied.)
On the other hand, there is sufficient evidence to show that
appellee has taken all necessary precautions to avoid
danger to the lives of its patrons or prevent accident which
may cause their death. Thus, it has been shown that the
swimming pools of appellee are provided with a ring buoy,
toy roof, towing line, oxygen resuscitator and a first aid
medicine kit. The bottom of the pools is painted with black
colors so as to insure clear visibility. There is on display in a
conspicuous place within the area certain rules and
regulations governing the use of the pools. Appellee
employs six lifeguards who are all trained as they had taken
a course for that purpose and were issued certificates of
proficiency. These lifeguards work on schedule prepared by
their chief and arranged in such a way as to have two guards
at a time on duty to look after the safety of the bathers.
There is a male nurse and a sanitary inspector with a clinic
provided with oxygen resuscitator. And there are security
guards who are available always in case of emergency.
The record also shows that when the body of minor Ong
was retrieved from the bottom of the pool, the employees
of appellee did everything possible to bring him back to life.
Thus, after he was placed at the edge of the pool, lifeguard
Abaño immediately gave him manual artificial respiration.
Soon thereafter, nurse Armando Rule arrived, followed by
sanitary inspector Iluminado Vicente who brought with him
an oxygen resuscitator. When they found that the pulse of
the boy was abnormal, the inspector immediately injected
him with camphorated oil. When the manual artificial
respiration proved ineffective they applied the oxygen
resuscitator until its contents were exhausted. And while all
these efforts were being made, they sent for Dr. Ayuyao
from the University of the Philippines who however came
late because upon examining the body he found him to be
already dead. All of the foregoing shows that appellee has
done what is humanly possible under the circumstances to
restore life to minor Ong and for that reason it is unfair to
hold it liable for his death.
Sensing that their former theory as regards the liability of
appellee may not be of much help, appellants now switch
to the theory that even if it be assumed that the deceased
is partly to be blamed for the unfortunate incident, still
appellee may be held liable under the doctrine of "last clear
chance" for the reason that, having the last opportunity to
save the victim, it failed to do so.
We do not see how this doctrine may apply considering that
the record does not show how minor Ong came into the big
swimming pool. The only thing the record discloses is that
minor Ong informed his elder brothers that he was going to
the locker room to drink a bottle of coke but that from that
time on nobody knew what happened to him until his
lifeless body was retrieved. The doctrine of last clear chance
simply means that the negligence of a claimant does not
preclude a recovery for the negligence of defendant where
it appears that the latter, by exercising reasonable care and
prudence, might have avoided injurious consequences to
claimant notwithstanding his negligence. Or, "As the
doctrine usually is stated, a person who has the last clear
chance or opportunity of avoiding an accident,
notwithstanding the negligent acts of his opponent or the
negligence of a third person which is imputed to his
opponent, is considered in law solely responsible for the
consequences of the accident." (38 Am. Jur. pp. 900-902)
It goes without saying that the plaintiff himself was
not free from fault, for he was guilty of antecedent
negligence in planting himself in the wrong side of
the road. But as we have already stated, the
defendant was also negligent; and in such case the
problem always is to discover which agent is
immediately and directly responsible. It will be
noted that the negligent acts of the two parties
were not contemporaneous, since the negligence
of the defendant succeeded the negligence of the
plaintiff by an appreciable interval. Under these
circumstances, the law is that a person who has the
last clear chance to avoid the impending harm and
fails to do so is chargeable with the consequences,
without reference to the prior negligence of the
other party. (Picart vs. Smith, 37 Phil., 809)
Since it is not known how minor Ong came into the big
swimming pool and it being apparent that he went there
without any companion in violation of one of the
regulations of appellee as regards the use of the pools, and
it appearing that lifeguard Aba_¤_o responded to the call
for help as soon as his attention was called to it and
immediately after retrieving the body all efforts at the
disposal of appellee had been put into play in order to bring
him back to life, it is clear that there is no room for the
application of the doctrine now invoked by appellants to
impute liability to appellee..
The last clear chance doctrine can never apply
where the party charged is required to act
instantaneously, and if the injury cannot be
avoided by the application of all means at hand
after the peril is or should have been discovered; at
least in cases in which any previous negligence of
the party charged cannot be said to have
contributed to the injury. O'Mally vs. Eagan, 77 ALR
582, 43 Wyo. 233, 350, 2, P2d 1063. (A.L.R. Digest,
Vol. 8, pp. 955-956)
Before closing, we wish to quote the following observation
of the trial court, which we find supported by the evidence:
"There is (also) a strong suggestion coming from the expert
evidence presented by both parties that Dominador Ong
might have dived where the water was only 5.5 feet deep,
 49

and in so doing he might have hit or bumped his forehead

against the bottom of the pool, as a consequence of which
he was stunned, and which to his drowning. As a boy scout
he must have received instructions in swimming. He knew,
or have known that it was dangerous for him to dive in that
part of the pool."
Wherefore, the decision appealed from being in accordance
with law and the evidence, we hereby affirm the same,
without pronouncement as to costs.
On 17 January 1995, petitioners Alfredo P. Pacis and
Cleopatra D. Pacis (petitioners) filed with the trial court a
civil case for damages against respondent Jerome Jovanne
Morales (respondent). Petitioners are the parents of Alfred
Dennis Pacis, Jr. (Alfred), a 17-year old student who died in
a shooting incident inside the Top Gun Firearms and
Ammunitions Store (gun store) in Baguio City. Respondent
is the owner of the gun store.
The facts as found by the trial court are as follows:

On January 19, 1991, Alfred

Dennis Pacis, then 17 years old and a first
year student at the Baguio Colleges
Foundation taking up BS Computer
Science, died due to a gunshot wound in
the head which he sustained while he was
at the Top Gun Firearm[s] and
Ammunition[s] Store located at Upper
Mabini Street, Baguio City. The gun store
was owned and operated by defendant
Jerome Jovanne Morales.

With Alfred Pacis at the time of the shooting were Aristedes

Matibag and Jason Herbolario. They were sales agents of
the defendant, and at that particular time, the caretakers of
the gun store.

The bullet which killed Alfred Dennis Pacis was fired from a
gun brought in by a customer of the gun store for repair.

The gun, an AMT Automag II Cal. 22 Rimfire Magnum with

Serial No. SN-H34194 (Exhibit Q), was left by defendant
Morales in a drawer of a table located inside the gun store.

G.R. No. 169467 Defendant Morales was in Manila at the time. His employee
Armando Jarnague, who was the regular caretaker of the
ALFREDO P. PACIS and gun store was also not around. He left earlier and requested
CLEOPATRA D. PACIS, sales agents Matibag and Herbolario to look after the gun
Petitioners, - versus - store while he and defendant Morales were away. Jarnague
JEROME JOVANNE entrusted to Matibag and Herbolario a bunch of keys used
MORALES, in the gun store which included the key to the drawer where
Respondent. the fatal gun was kept.

Promulgated: February 25, 2010 It appears that Matibag and

Herbolario later brought out the gun from
x-------------------------------------------x the drawer and placed it on top of the
table. Attracted by the sight of the gun, the
DECISION young Alfred Dennis Pacis got hold of the
same. Matibag asked Alfred Dennis Pacis
CARPIO, J.: to return the gun. The latter followed and
handed the gun to Matibag. It went off,
The Case the bullet hitting the young Alfred in the
This petition for review1 assails the 11 May 2005 head.
Decision2 and the 19 August 2005 Resolution of the Court
of Appeals in CA-G.R. CV No. 60669. A criminal case for homicide was filed against Matibag
before branch VII of this Court. Matibag, however, was
The Facts acquitted of the charge against him because of the
 50
exempting circumstance of accident under Art. 12, par. 4 of
the Revised Penal Code.
By agreement of the parties, the
evidence adduced in the criminal case for
homicide against Matibag was reproduced
and adopted by them as part of their
evidence in the instant case.3
On 8 April 1998, the trial court rendered its decision
in favor of petitioners. The dispositive portion of the
decision reads:
WHEREFORE, premises
considered, judgment is hereby rendered
in favor of the plaintiffs [Spouses Alfredo
P. Pacis and Cleopatra D. Pacis] and against
the defendant [Jerome Jovanne Morales]
ordering the defendant to pay plaintiffs
(1) P30,000.00 as indemnity for the death
of Alfred Pacis;
(2)P29,437.65 as actual damages for the
hospitalization and burial
expenses incurred by the plaintiffs;
(3)P100,000.00 as compensatory
damages;
(4) P100,000.00 as moral damages;
(5) P50,000.00 as attorneys fees.
SO ORDERED.4
Respondent appealed to the Court of Appeals. In its
Decision5 dated 11 May 2005, the Court of Appeals
reversed the trial courts Decision and absolved respondent
from civil liability under Article 2180 of the Civil Code.6
Petitioners filed a motion for reconsideration, which the
Court of Appeals denied in its Resolution dated 19 August
2005.
Hence, this petition.
The Trial Courts Ruling
The trial court held respondent civilly liable for the death of
Alfred under Article 2180 in relation to Article 2176 of the
Civil Code.7 The trial court held that the accidental shooting
of Alfred which caused his death was partly due to the
negligence of respondents employee Aristedes Matibag
(Matibag). Matibag and Jason Herbolario (Herbolario) were
employees of respondent even if they were only paid on a
commission basis. Under the Civil Code, respondent is liable
for the damages caused by Matibag on the occasion of the
performance of his duties, unless respondent proved that
he observed the diligence of a good father of a family to
prevent the damage. The trial court held that respondent
failed to observe the required diligence when he left the key
to the drawer containing the loaded defective gun without
instructing his employees to be careful in handling the
loaded
gun. Th
e Court of Appeals Ruling
The Court of Appeals held that respondent cannot be held
civilly liable since there was no employer-employee
relationship between respondent and Matibag. The Court
of Appeals found that Matibag was not under the control of
respondent with respect to the means and methods in the
performance of his work. There can be no employer-
employee relationship where the element of control is
absent. Thus, Article 2180 of the Civil Code does not apply
in this case and respondent cannot be held liable.
Furthermore, the Court of Appeals ruled that even if
respondent is considered an employer of Matibag, still
respondent cannot be held liable since no negligence can be
attributed to him. As explained by the Court of Appeals:
Granting arguendo that an
employer-employee relationship existed
between Aristedes Matibag and the
defendant-appellant, we find that no
negligence can be attributed to him.
Negligence is best exemplified in the case of Picart vs. Smith
(37 Phil. 809). The test of negligence is this:
x x x. Could a
prudent man, in the
position of the person to
whom negligence is
attributed, foresee harm
to the person injured as a
reasonable consequence
of the course about to be
pursued? If so, the law
imposes a duty on the
actor to refrain from that
course or take precaution
against its mischievous
results, and the failure to
do so constitutes
negligence. x x x.
Defendant-appellant maintains
 51
that he is not guilty of negligence and lack
of due care as he did not fail to observe the
diligence of a good father of a family. He
submits that he kept the firearm in one of
his table drawers, which he locked and
such is already an indication that he took
the necessary diligence and care that the
said gun would not be accessible to
anyone. He puts [sic] that his store is
engaged in selling firearms and
ammunitions. Such items which are per se
dangerous are kept in a place which is
properly secured in order that the persons
coming into the gun store would not be
able to take hold of it unless it is done
intentionally, such as when a customer is
interested to purchase any of the firearms,
ammunitions and other related items, in
which case, he may be allowed to handle
the same.
We agree. Much as We
sympathize with the family of the
deceased, defendant-appellant is not to
be blamed. He exercised due diligence in
keeping his loaded gun while he was on a
business trip in Manila. He placed it inside
the drawer and locked it. It was taken
away without his knowledge and
authority. Whatever happened to the
deceased was purely accidental.8
The Issues
Petitioners raise the following issues:
I. THE APPELLATE COURT COMMITTED
SERIOUS ERROR IN RENDERING THE
DECISION AND RESOLUTION IN
QUESTION IN DISREGARD OF LAW
AND JURISPRUDENCE BY REVERSING
THE ORDER OF THE REGIONAL TRIAL
COURT (BRANCH 59) OF BAGUIO CITY
NOTWITHSTANDING CLEAR,
AUTHENTIC RECORDS AND
TESTIMONIES PRESENTED DURING
THE TRIAL WHICH NEGATE AND
CONTRADICT ITS FINDINGS.
II. THE APPELLATE COURT COMMITTED
GRAVE, REVERSIBLE ERROR IN
RENDERING THE DECISION AND
RESOLUTION IN QUESTION BY
DEPARTING FROM THE ACCEPTED
AND USUAL COURSE OF JUDICIAL
PROCEEDINGS THEREBY IGNORING
THE FACTUAL FINDINGS OF THE
REGIONAL TRIAL COURT (BRANCH 59)
OF BAGUIO CITY SHOWING
PETITIONERS CLEAR RIGHTS TO THE
AWARD OF DAMAGES.9
The Ruling of the Court
We find the petition meritorious.
This case for damages arose out of the accidental
shooting of petitioners son. Under Article 116110 of the Civil
Code, petitioners may enforce their claim for damages
based on the civil liability arising from the crime under
Article 10011 of the Revised Penal Code or they may opt to
file an independent civil action for damages under the Civil
Code. In this case, instead of enforcing their claim for
damages in the homicide case filed against Matibag,
petitioners opted to file an independent civil action for
damages against respondent whom they alleged was
Matibags employer. Petitioners based their claim for
damages under Articles 2176 and 2180 of the Civil Code.
Unlike the subsidiary liability of the employer under
Article 10312 of the Revised Penal Code,13 the liability of the
employer, or any person for that matter, under Article 2176
of the Civil Code is primary and direct, based on a persons
own negligence. Article 2176 states:
Art. 2176. Whoever by act or
omission causes damage to another, there
being fault or negligence, is obliged to pay
for the damage done. Such fault or
negligence, if there is no pre-existing
contractual relation between the parties,
is called quasi-delict and is governed by the
provisions of this Chapter.
This case involves the accidental discharge of a
firearm inside a gun store. Under PNP Circular No. 9,
entitled the Policy on Firearms and Ammunition
Dealership/Repair, a person who is in the business of
purchasing and selling of firearms and ammunition must
maintain basic security and safety requirements of a gun
 52
dealer, otherwise his License to Operate Dealership will be
suspended or canceled.14
Indeed, a higher degree of care is required of
someone who has in his possession or under his control an
instrumentality extremely dangerous in character, such as
dangerous weapons or substances. Such person in
possession or control of dangerous instrumentalities has
the duty to take exceptional precautions to prevent any
injury being done thereby.15 Unlike the ordinary affairs of
life or business which involve little or no risk, a business
dealing with dangerous weapons requires the exercise of a
higher degree of care.
As a gun store owner, respondent is presumed to
be knowledgeable about firearms safety and should have
known never to keep a loaded weapon in his store to avoid
unreasonable risk of harm or injury to others. Respondent
has the duty to ensure that all the guns in his store are not
loaded. Firearms should be stored unloaded and separate
from ammunition when the firearms are not needed for
ready-access defensive use.16 With more reason, guns
accepted by the store for repair should not be loaded
precisely because they are defective and may cause an
accidental discharge such as what happened in this case.
Respondent was clearly negligent when he accepted the
gun for repair and placed it inside the drawer without
ensuring first that it was not loaded. In the first place, the
defective gun should have been stored in a vault. Before
accepting the defective gun for repair, respondent should
have made sure that it was not loaded to prevent any
untoward accident. Indeed, respondent should never
accept a firearm from another person, until the cylinder or
action is open and he has personally checked that the
weapon is completely unloaded.17 For failing to insure that
the gun was not loaded, respondent himself was negligent.
Furthermore, it was not shown in this case whether
respondent had a License to Repair which authorizes him to
repair defective firearms to restore its original composition
or enhance or upgrade firearms.18
Clearly, respondent did not exercise the degree of care and
diligence required of a good father of a family, much less
the degree of care required of someone dealing with
dangerous weapons, as would exempt him from liability in
this case.
WHEREFORE, we GRANT the petition. We SET
ASIDE the 11 May 2005 Decision and the 19 August 2005
Resolution of the Court of Appeals in CA-G.R. CV No. 60669.
We REINSTATE the trial courts Decision dated 8 April 1998.
SO ORDERED
53