Barredo vs. Garcia and Almario 73 Phil.

607 Facts: A head-on collision between a taxicab owned by Barredo and a carretelaoccurred. The carretela was overturned and one of its passengers, a 16-year old boy, the son of Garcia and Almario, died as a result of the injuries which he received. The driver of the taxicab, a employee of Barredo, was prosecuted for the crime and was convicted. When the criminal case was instituted, Garcia and Almario reserved their right to institute a separate civil action for damages. Subsequently, Garcia and Almario instituted a civil action for damages against Barredo, the employer of the taxicab driver. Held: The pivotal question in this case is whether the plaintiffs may bring this separate civil action against Fausto Barredo thus making him primarily and directly responsible under Article 1903 of the Civil Code as an employer of Pedro Fontanilla. The defendant maintains that Fontanillas negligence being punishable by the Penal Code, his (defendants) liability as an employer is only subsidiary, according to said Penal Code, but Fontanilla has not been sued in a civil action and his property has not been exhausted. To decide the main issue, we must cut thru the tangle that has, in the minds of

many, confused and jumbled together delitosand cuasi delitos, or crimes under the Penal Code and fault or negligence under Articles 1902-1910 of the Civil Code. This should be done because justice may be lost in a labyrinth, unless principles and remedies are distinctly envisaged. Fortunately, we are aided in our inquiry by the luminous presentation of this perplexing subject by renowned jurists and we are likewise guided by the decisions of this Court in previous cases as well as by the solemn clarity of the considerations in several sentences of the Supreme Tribunal of Spain. Authorities support the proposition that a quasi-delict or culpa aquiliana is a separate legal institution under the Civil Code, with a substantivity all its own, and individuality that is entirely apart and independent from a delict or crime. Upon this principle, and on the wording and spirit of Article 1903 of the Civil Code, the primary and direct responsibility of employers may be safely anchored. It will thus be seen that while the terms of Article 1902 of the Civil Code seem to be broad enough to cover the drivers negligence in the instant case, nevertheless Article 1903 limits cuasi-delitos TO ACTS OR OMISSIONS NOT PUNISHABLE BY LAW. But

inasmuch as Article 365 of the Revised Penal Code punishes not only reckless but even simple imprudence or negligence, the fault or negligence under Article 1902 of the Civil Code has apparently been crowded out. It is this overlapping that makes the confusion worse confounded. However, a closer study shows that such a concurrence of scope in regard to negligent acts does not destroy the distinction between the civil liability arising from a crime and the responsibility for cuasidelitos 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 extracontractual under Articles 1902-1910 of the Civil Code. The individuality of cuasi-delito or culpa extra-contractual looms clear anduamistakable [sic] unmistakable. This legal institution is of ancient lineage, one of its early ancestors being the Lex Aquilia in Roman Law. In fact, in Spanish legal terminology, this responsibility is often referred to as culpa aquiliana. The Partidasalso contributed to the genealogy of the present fault or negligence under the Civil Code: x x x . The distinctive nature of cuasi-delitos survives in the Civil Code. According to Article 1089,

one of the five sources of obligations is the legal institution of cuasi-delito orculpa extracontractual: los actos . . . . en que intervenga cualqier genero de culpa or negligencia. Then Article 1093 provides that this kind of obligation shall be governed by Chapter 11 of Title XVI of Book IV , meaning Articles 1902-1910. 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 are: 1. That crimes affect the public interest, while quasi-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 quasidelicts, because for 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 kind 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.

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, 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 defendantpetitioner is primarily and directly liable under Article 1903 of the Civil Code. The Barredo case was decided by the Supreme Court prior to the present Civil Code. However, the principle enunciated in said case, that responsibility for fault or negligence as quasidelict is distinct and separate from negligence penalized under the Revised Penal Code, is now specifically embodied in Art. 2177 of the Civil Code

77 SCRA 100 May 26, 1977 Torts and Damages Civil Liability from Quasi Delicts vs Civil Liability from Crimes Reginald Hill, a minor, caused the death of Agapito (son of Elcano). Elcano filed a criminal case against Reginald but Reginald was acquitted for lack of intent coupled with mistake. Elcano then filed a civil action against Reginald and his dad (Marvin Hill) for damages based on Article 2180 of the Civil Code. Hill argued that the civil action is barred by his sons acquittal in the criminal case; and that if ever, his civil liability as a parent has been extinguished by the fact that his son is already an emancipated minor by reason of his marriage. ISSUE: Whether or not Marvin Hill may be held civilly liable under Article 2180.

HELD: Yes. The acquittal of Reginald in the criminal case does not bar the filing of a separate civil action. A separate civil action lies against the offender in a criminal act, whether or not he is criminally prosecuted and found guilty or acquitted, provided that the offended party is not allowed, if accused is actually charged also criminally, to recover damages on both scores, and would be entitled in such eventuality only to the bigger award of the two, assuming the awards made in the two cases vary. In other words, the extinction of civil liability referred to in Par. (e) of Section 3, Rule 111, refers exclusively to civil liability founded on Article 100 of the Revised Penal Code, whereas the civil liability for the same act considered as a quasidelict 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, culpa aquiliana includes voluntary and negligent acts which may be punishable by law.

While it is true that parental authority is terminated upon emancipation of the child (Article 327, Civil Code), and under Article 397, emancipation takes place by the marriage of the minor child, it is, however, also clear that pursuant to Article 399, emancipation by marriage of the minor is not really full or absolute. Thus Emancipation by marriage or by voluntary concession shall terminate parental authority over the childs person. It shall enable the minor to administer his property as though he were of age, but he cannot borrow money or alienate or encumber real property without the consent of his father or mother, or guardian. He can sue and be sued in court only with the assistance of his father, mother or guardian. Therefore, Article 2180 is applicable to Marvin Hill the SC however ruled since at the time of the decision, Reginald is already of age, Marvins liability should be subsidiary only as a matter of equity.

CINCO V CANONOY 90 scra 369 NATURE

Petition for review on certiorari FACTS - Cinco filed on Feb 25, 19701 a complaint for recoveryo f d a m a g e s o n a c c o u n t o f a v e h i c u l a r a c c i d e n t involving his a u t o m o b i l e a n d a j e e p n e y d r i v e n b y Romeo Hilot and operated by Valeriana Pepito andCarlos Pepito.- Subsequently, a criminal case was filed against thedriver Romeo Hilot arising from the same accident.- At the pre-trial in the civil case, counsel for privaterespondents moved to suspend the civil action pendingthe final determination of the criminal suit.- The City Court of Mandaue ordered the suspension of the civil case. Petitioners MFR having been denied, heelevated the matter on Certiorari to the CFI Cebu.,which in turn dismissed the petition. Plaintiffs claims: - it was the fault r negligence of the d r i v e r i n t h e operation of the jeepney owned by the Pepitos whichcaused the collision.- Damages were sustained by petitioner because of thecollision- There was a direct causal connection between thedamages he suffered and the fault and negligence of private respondents. Respondents Comments: - They observed due diligence in the selection andsupervision of employees, particularly of Romeo Hilot. ISSUE WON there can be an independent civil action fordamage to property during t h e p e n d e n c y o f t h e criminal action HELD YES- Liability being predicated on quasi-delict, the civilcase may proceed as a separate and independent civilaction, as specifically provided for in Art 2177 of theCivil Code.- The separate and independent civil

action for quasi-delict is also clearly recognized in sec 2, Rule 111 of the Rules of Court: Sec 2. Independent civil action. I n t h e c a s e s prvided for in Articles 31, 32, 33, 34 and 2177 of the Civil Code f the Philippines, an independentcivil action entirely separate and distinct fromt h e c r i m i n a l a c t i o n , m a y b e b r o u g h t b y t h e injured party during the pendency of the criminalcase, provided the right is reserved as requiredin the preceding section. Such civil action shallp r o c e e d i n d e p e n d e n t l y o f t h e c r i minalp r o s e c u t i o n , a n d s h a l l r e q u i r e o n l y a preponderance of evidence.- Petitioners cause of action is based on quasi-delict. The concept of quasi-delict, as enunciated inA r t 2 1 7 6 o f t h e C i v i l Code, is so broad that inincludes not only injuries to persons but al sodamage to property. It makes no distinctio n between damage to persons on the one handand damage to property on the other. The worddamage is used in two concepts: the harm donea n d reparation for the harm done. And w i t h respect to harm it is plain that it includes bothinjuries to person and property since harm is notlimited to personal but also to property injuries. DISPOSITION Writ of Certiorari granted.

BAKSH V CA (Gonzales) 219 SCRA 115DAVIDE, JR; Feb.19, 1993 NATURE Appeal by certiorari to review and set aside the CAdecision which affirmed in toto the RTCs decision FACTS - Private respondent Marilou Gonzales (MG) filed acomplaint for damages against petitioner GashemS h o o k a t B a k s h f o r t h e a l l e g e d v i o l a t i o n o f t h e i r agreement to get married.**MGs allegations in the complaint:- That she is a 22 yr. old Filipina, single, of good moralcharacter and respected reputation in her community.- That Baksh is an Iranian citizen, residing in Dagupan,and is an exchange student taking up medicine at theLyceum in Dagupan.- That Baksh later courted and proposed to marry her.MG accepted his love on the condition that they wouldget married. They later agreed to get married at theend of the school semester. Petitioner had visited MGsparents to secure their approval of the marriage. Bakshlater forced MG to live with him. A week before thefiling of the complaint, petitioner started maltreatingher even threatening to kill her and as a result of suchmaltreatment, she sustained injuries. A day before

thefiling of the complaint, Baksh repudiated their marriageagreement and asked her not to live with him anymoreand that he is already married to someone in Bacolod.She prayed for payment for damages amounting to Php45,000 plus additional costs.- Baksh answered with a counterclaim, admitting onlyt h e p e r s o n a l c i r c u m s t a n c e s o f t h e p a r t i e s i n t h e complaint but denied the rest of the allegations. Heclaimed that he never proposed marriage to or agreedt o b e m a r r i e d ; n e i t h e r s o u g h t the consent of herparents nor forced her to l i v e i n h i s a p t . ; d i d n o t maltreat her but only told her to stop coming to hisplace after having discovered that she stole his moneya n d passport. He also prayed for 25,000 a s m o r a l damages plus misc. expenses.- T h e R T C , a p p l y i n g A r t . 2 1 C C d e c i d e d i n f a v o r o f private respondent. Petitioner was thus ordered to payPhp 20,000 as moral damages and 3,000 pesos attys.fees plus litigation expenses. Petitioner appealed thisdecision to respondent CA, contending that the trialcourt erred in not dismissing the case for lack of factuala n d l e g a l basis and in ordering him to p a y m o r a l damages, attys fees, etc. Respondent CA promulgated the challenged decisionaffirming in toto the trial courts ruling which promptedBaksh to file this petition for certiorari, raising thesingle issue of WON Art. 21 applies to this case. ISSUE WON damages may be recovered for a breach o f promise to marry on the basis of Art.21 of the CivilCode HELD 1. YES Ratio

In a breach of promise to marry where t h e woman is a victim of moral seduction, Art. 21 may beapplied. ReasoningWhere a mans promise to marry is in fact t h e proximate cause of the acceptance of his love by awoman and his representation to fulfill that promisebecomes the proximate cause of the giving of herself u n t o h i m i n s e x u a l congress, proof that he had, inreality, no int e n t i o n o f m a r r y i n g h e r a n d t h a t t h e promise was only a subtle scheme or deceptive deviceto entice or inveigle to accept him and to obtain herconsent to the sexual act, could justify the award of d a m a g e s p u r s u a n t t o A r t . 2 1 n o t b e c a u s e o f s u c h promise to marry but because of the fraud and deceitb e h i n d i t a n d t h e w i l l f u l i n j u r y t o h e r h o n o r a n d reputation which followed thereafter. It is essentialhowever, that such injury should have been committedin a manner contrary to morals, good customs or publicpolicy.- In the instant case, respondent Court found that it wasthe petitioner's "fraudulent and deceptive protestationsof love for and promise to marry plaintiff that made hersurrender her virtue and womanhood to him and to livewith him on the honest and sincere belief that he wouldkeep said promise, and it was likewise these fraud anddeception on appellant's part that made plaintiff'sparents agree to their daughter's livingin with him preparatory to their supposed marriage. In short, thep r i v a t e r e s p o n d e n t s u r r e n d e r e d h e r v i r g i n i ty, thecherished possession of every single F i l i p i n a , n o t because of lust but because of moral seduction. Thepetitioner could not be held liable for

criminal seductionpunished under either Art.337 or Art.338 of the RPCbecause the private respondent was above 18 years of age at the time of the seduction.- M o r e o v e r , i t i s t h e r u l e i n t h i s j u r i s d i c t i o n t h a t appellate courts will not disturb the trial court's findingsas to the credibility of witnesses, the latter court havingheard the witnesses and having had the opportunity too b s e r v e c l o s e l y t h e i r d e p o r t m e n t a n d m a n n e r o f testifying, unless the trial court had plainly overlookedfacts of substance or value which, if considered, mightaffect the result of the case. Petitioner has miserablyfailed to convince Us that both the appellate and trialcourts had overlooked any fact of substance or valuewhich could alter the result of the case. **Obiter: on Torts and Quasi-delicts - The existing rule is that a breach of promise to marryp e r s e i s n o t a n a c t i o n a b l e w r o n g . C o n g r e s s deliberately eliminated from the draft of the New CivilCode the provisions that would have made it so. Thereason therefor is set forth in the report of the SenateCommittees on the Proposed Civil Code, from which Wequote:The elimination of this chapter is proposed. Thatbreach of promise to marry is not actionable has beendefinitely decided in the case of De Jesus vs. Syquia. The history of breach of promise suits in the UnitedStates and in England has shown that no other actionlends itself more readily to abuse by designing womenand unscrupulous men...- T h i s n o t w i t h s t a n d i n g , t h e s a i d C o d e c o n t a i n s a provision, Article 21, which is designed to expand theconcept of torts or quasi-delict in this jurisdiction byg r a n t i n g a d e q u a t e l e g a l r e m e d y f o r t h e u n t o l d number of moral wrongs which is impossible for humanforesight to specifically enumerate and punish in thestatute books.- As the Code Commission

itself stated in its Report:But the Code Commission has gone farther than thesphere of wrongs defined or determined by positivelaw. Fully sensible that there are countless gaps in thestatutes, which leave so many victims of moral wrongsh e l p l e s s , e v e n t h o u g h t h e y h a v e a c t u a l l y s u f f e r e d material and moral injury, the Commission has deemedit necessary, in the interest of justice, to incorporate inthe proposed Civil Code the following rule: Art.21 Any person who wilfully causes loss or injury to another in a manner that is contrary to morals, goodcustoms or public policy shall compensate the latter for the damage. An example will illustrate the purview of the foregoing norm: 'A' seduces the nineteenyear olddaughter of 'X.' A promise of marriage either has notbeen made, or can not be proved. The girl becomespregnant. Under the present laws, there is no crime, asthe girl is above 18 yrs of age. Neither can any civila c t i o n f o r b r e a c h o f p r o m i s e o f m a r r i a g e b e f i l e d . Therefo re, though the grievous moral wrong has beencommitted, and although the girl and her family haves u f f e r e d i n c a l c u l a b l e m o r a l d a m a g e , s h e and herparents cannot bring any a c t i o n f o r d a m a g e s . B u t under the proposed article, she and her parents wouldhave such a right of action. Thus at one stroke, the legislator, if the foregoingr u l e i s a p p r o v e d , w o u l d v o u c h s a f e a d e q u a t e l e g a l remedy for that untold number of moral wrongs whichi t i s i m p o s s i b l e f o r h u m a n f o r e s i g h t t o p r o v i d e f o r specifically in the statutes.- Art.2176 CC, which defines a quasi-delict, is limited tonegligent acts or omissions and excludes the notion of willfulness or intent. Quasi-delict, known in Spanishlegal treatises as culpa aquiliana

, is a civil law conceptw h i l e t o r t s i s a n A n g l o A m e r i c a n o r c o m m o n l a w concept. Torts is much broader than culpa aquilianabecause it includes not only negligence, but intentionalcriminal acts as well such as assault and battery, falseimprisonment and deceit. In the general scheme of thePhilippine legal system envisioned by the Commissionresponsible for drafting the New Civil Code, intentionaland malicious acts, with certain exceptions, are to begoverned by the Revised Penal Code while negligentacts or omissions are to be covered by Art.2176 CC. Inbetween these opposite spectrums are injurious actsw h i c h , i n t h e a b s e n c e o f A r t . 2 1 , w o u l d h a v e b e e n beyond redress. Thus, Art.21 fills that vacuum. It iseven postulated that together with Articles 19 and 20of the Civil Code, Art.21 has greatly broadened thescope of the law on civil wrongs; it has become muchmore supple and adaptable than the AngloAmericanlaw on torts. DISPOSITION f i n d i n g n o r e v e r s i b l e e r r o r i n t h e challenged decision, the instant petition is hereby DENIED

Dulay vs. Court of Appeals, G.R. No. 108017, 243 SCRA 220 , April 03, 1995 G.R. No. 108017 April 3, 1995 MARIA BENITA A. DULAY, in her own behalf and in behalf of the minor children KRIZTEEN ELIZABETH, BEVERLY MARIE and NAPOLEON II, all surnamed DULAY, petitioners, vs. THE COURT OF APPEALS, Former Eighth Division,

HON. TEODORO P. REGINO, in his capacity as Presiding Judge of the Regional Trial Court National Capital Region, Quezon City, Br. 84, SAFEGUARD INVESTIGATION AND SECURITY CO., INC., and SUPERGUARD SECURITY CORPORATION, respondents. BIDIN, J.: This petition for certiorari prays for the reversal of the decision of the Court of Appeals dated October 29, 1991 in CA-G.R. CV No. 24646 which affirmed the order of the Regional Trial Court dismissing Civil Case No. Q-891751, and its resolution dated November 17, 1991 denying herein, petitioner's motion for reconsideration. The antecedent facts of the case are as follows: On December 7, 1988, an altercation between Benigno Torzuela and Atty. Napoleon Dulay occurred at the "Big Bang Sa Alabang," Alabang Village, Muntinlupa as a result of which Benigno Torzuela, the security guard on duty at the said carnival, shot and killed Atty. Napoleon Dulay. Herein petitioner Maria Benita A. Dulay, widow of the deceased Napoleon Dulay, in her own behalf and in behalf of her minor children, filed on February 8, 1989 an action for damages against Benigno Torzuela and herein private respondents Safeguard Investigation and Security Co., Inc., ("SAFEGUARD") and/or Superguard Security Corp. ("SUPERGUARD"), alleged employers of defendant Torzuela. The complaint, docketed as Civil Case No. Q-89-1751 among others alleges the following: 1. . . . Defendants SAFEGUARD INVESTIGATION AND SECURITY CO., INC., (Defendant Safeguard) and SUPERGUARD

SECURITY CORPORATION (Defendant Superguard) are corporations duly organized and existing in accordance with Philippine laws, with offices at 10th Floor, Manufacturers Building, Inc., Plaza Santa Cruz, Manila. They are impleaded as alternative defendants for, while the former appears to be the employer of defendant BENIGNO TORZUELA (defendant TORZUELA), the latter impliedly acknowledged responsibility for the acts of defendant TORZUELA by extending its sympathies to plaintiffs. Defendant BENIGNO TORZUELA is of legal age, an employee of defendant SAFEGUARD and/or defendant SUPERGUARD and, at the time of the incident complained of, was under their control and supervision. . . . 3. On December 7, 1988 at around 8:00 a.m., defendant TORZUELA, while he was on duty as security guard at the "Big Bang sa Alabang," Alabang Village, Muntinlupa, Metro Manila shot and killed NAPOLEON V. DULAY with a .38 caliber revolver belonging to defendant SAFEGUARD, and/or SUPERGUARD (per Police Report dated January 7, 1989, copy attached as Annex A); 4. The incident resulting in the death of NAPOLEON V. DULAY was due to the concurring negligence of the defendants. Defendant TORZUELA'S wanton and reckless discharge of the firearm issued to him by defendant SAFEGUARD and/or SUPERGUARD was the immediate and proximate cause of the injury, while the negligence of defendant SAFEGUARD and/or SUPERGUARD consists in its having failed to exercise the diligence of a good father of a family in the supervision and control of its employee to avoid the injury.

xxx xxx xxx (Rollo, pp. 117-118) Petitioners prayed for actual, compensatory, moral and exemplary damages, and attorney's fees. The said Civil Case No. Q-89-1751 was raffled to Branch 84 of the Regional Trial Court of Quezon City, presided by respondent Judge Teodoro Regino. On March 2, 1989, private respondent SUPERGUARD filed a Motion to Dismiss on the ground that the complaint does not state a valid cause of action. SUPERGUARD claimed that Torzuela's act of shooting Dulay was beyond the scope of his duties, and that since the alleged act of shooting was committed with deliberate intent (dolo), the civil liability therefor is governed by Article 100 of the Revised Penal Code, which states: Art. 100. Civil liability of a person guilty of a felony. Every person criminally liable for a felony is also civilly liable. Respondent SUPERGUARD further alleged that a complaint for damages based on negligence under Article 2176 of the New Civil Code, such as the one filed by petitioners, cannot lie, since the civil liability under Article 2176 applies only to quasi-offenses under Article 365 of the Revised Penal Code. In addition, the private respondent argued that petitioners' filing of the complaint is premature considering that the conviction of Torzuela in a criminal case is a condition sine qua non for the employer's subsidiary liability (Rollo, p. 5559). Respondent SAFEGUARD also filed a motion praying that it be excluded as defendant on the ground that

defendant Torzuela is not one of its employees (Rollo, p. 96). Petitioners opposed both motions, stating that their cause of action against the private respondents is based on their liability under Article 2180 of the New Civil Code, which provides: Art. 2180. The obligation imposed by Article 2176 is demandable not only for one's own acts or omissions, but also for those of persons for whom one is responsible. xxx xxx xxx Employers shall be liable for the damages caused by their employees and household helpers acting within the scope of their assigned tasks, even though the former are not engaged in any business or an industry. xxx xxx xxx (Emphasis supplied) Petitioners contended that a suit against alternative defendants is allowed under Rule 3, Section 13 of the Rules of Court. Therefore, the inclusion of private respondents as alternative defendants in the complaint is justified by the following: the Initial Investigation Report prepared by Pat. Mario Tubon showing that Torzuela is an employee of SAFEGUARD; and through overt acts, SUPERGUARD extended its sympathies to petitioners (Rollo, pp. 64 and 98). Meanwhile, an Information dated March 21, 1989 charging Benigno Torzuela with homicide was filed before the Regional Trial Court of Makati and was docketed as Criminal Case No. 89-1896. On April 13, 1989, respondent Judge Regino issued an order granting SUPERGUARD'S motion to dismiss and SAFEGUARD'S motion for exclusion as defendant. The

respondent judge held that the complaint did not state facts necessary or sufficient to constitute a quasi-delict since it does not mention any negligence on the part of Torzuela in shooting Napoleon Dulay or that the same was done in the performance of his duties. Respondent judge ruled that mere allegations of the concurring negligence of the defendants (private respondents herein) without stating the facts showing such negligence are mere conclusions of law (Rollo, p. 106). Respondent judge also declared that the complaint was one for damages founded on crimes punishable under Articles 100 and 103 of the Revised Penal Code as distinguished from those arising from, quasi-delict. The dispositive portion of the order dated April 13, 1989 states: WHEREFORE, this Court holds that in view of the material and ultimate facts alleged in the verified complaint and in accordance with the applicable law on the matter as well as precedents laid down by the Supreme Court, the complaint against the alternative defendants Superguard Security Corporation and Safeguard Investigation and Security Co., Inc., must be and (sic) it is hereby dismissed. (Rollo, p. 110) The above order was affirmed by the respondent court and petitioners' motion for reconsideration thereof was denied. Petitioners take exception to the assailed decision and insist that quasi-delicts are not limited to acts of negligence but also cover acts that are intentional and voluntary, citing Andamo v. IAC (191 SCRA 195 [1990]). Thus, petitioners insist that Torzuela' s act of shooting Napoleon Dulay constitutes a quasi-delict actionable under Article 2176 of the New Civil Code.

Petitioners further contend that under Article 2180 of the New Civil Code, private respondents are primarily liable for their negligence either in the selection or supervision of their employees. This liability is independent of the employee's own liability for fault or negligence and is distinct from the subsidiary civil liability under Article 103 of the Revised Penal Code. The civil action against the employer may therefore proceed independently of the criminal action pursuant to Rule 111 Section 3 of the Rules of Court. Petitioners submit that the question of whether Torzuela is an employee of respondent SUPERGUARD or SAFEGUARD would be better resolved after trial. Moreover, petitioners argue that Torzuela's act of shooting Dulay is also actionable under Article 33 of the New Civil Code, to wit: Art. 33. In cases of defamation, fraud, and physical injuries, a civil action for damages, entirely separate and distinct from the criminal action, may be brought by the injured party. Such civil action shall proceed independently of the criminal prosecution, and shall require only a preponderance of evidence. (Emphasis supplied) In the same vein, petitioners cite Section 3, Rule 111 of the Rules of Court which provides: Rule 111. . . . . Sec. 3. When civil action may proceed independently In the cases provided for in Articles 32, 33, 34 and 2176 of the Civil Code of the Philippines, the independent civil action which has been reserved may be brought by the offended party, shall proceed independently of the criminal action, and shall require only a preponderance of evidence. (Emphasis supplied)

The term "physical injuries" under Article 33 has been held to include consummated, frustrated and attempted homicide. Thus, petitioners maintain that Torzuela's prior conviction is unnecessary since the civil action can proceed independently of the criminal action. On the other hand, it is the private respondents' argument that since the act was not committed with negligence, the petitioners have no cause of action under Articles 2116 and 2177 of the New Civil Code. The civil action contemplated in Article 2177 is not applicable to acts committed with deliberate intent, but only applies to quasi-offenses under Article 365 of the Revised Penal Code. Torzuela's act of shooting Atty. Dulay to death, aside from being purely personal, was done with deliberate intent and could not have been part of his duties as security guard. And since Article 2180 of the New Civil Code covers only: acts done within the scope of the employee's assigned tasks, the private respondents cannot be held liable for damages. We find for petitioners. It is undisputed that Benigno Torzuela is being prosecuted for homicide for the fatal shooting of Napoleon Dulay. Rule 111 of the Rules on Criminal Procedure provides: Sec. 1. Institution of criminal and civil actions. When a criminal action is instituted, the civil action for the recovery of civil liability is impliedly instituted with the criminal action, unless the offended party waives the civil action , reserves his right to institute it separately or institutes the civil action prior to the criminal action. Such civil action includes recovery of indemnity under the Revised Penal Code, and damages under Articles 32, 33, 34, and 2176 of the Civil Code of the Philippines

arising from the same act or omission of the accused. (Emphasis supplied) It is well-settled that the filing of an independent civil action before the prosecution in the criminal action presents evidence is even far better than a compliance with the requirement of express reservation (Yakult Philippines v. Court of Appeals, 190 SCRA 357 [1990]). This is precisely what the petitioners opted to do in this case. However, the private respondents opposed the civil action on the ground that the same is founded on a delict and not on a quasi-delict as the shooting was not attended by negligence. What is in dispute therefore is the nature of the petitioner's cause of action. The nature of a cause of action is determined by the facts alleged in the complaint as constituting the cause of action (Republic v. Estenzo, 158 SCRA 282 [1988]). The purpose of an action or suit and the law to govern it is to be determined not by the claim of the party filing the action, made in his argument or brief, but rather by the complaint itself, its allegations and prayer for relief. (De Tavera v. Philippine Tuberculosis Society, 112 SCRA 243 [1982]). An examination of the complaint in the present case would show that the plaintiffs, petitioners herein, are invoking their right to recover damages against the private respondents for their vicarious responsibility for the injury caused by Benigno Torzuela's act of shooting and killing Napoleon Dulay, as stated in paragraphs 1 and 2 of the complaint. Article 2176 of the New Civil Code provides: Art. 2176. Whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay for the damage done. Such fault or negligence, if there is no pre-existing contractual relation between the

parties is called a quasi-delict and is governed by the provisions of this Chapter. Contrary to the theory of private respondents, there is no justification for limiting the scope of Article 2176 of the Civil Code to acts or omissions resulting from negligence. Well-entrenched is the doctrine that article 2176 covers not only acts committed with negligence, but also acts which are voluntary and intentional. As far back as the definitive case of Elcano v. Hill (77 SCRA 98 [1977]), this Court already held that: . . . Article 2176, where it refers to "fault or negligence," covers not only acts "not punishable by law" but also acts criminal in character; whether intentional and voluntary or negligent. Consequently, a separate civil action against the offender in a criminal act, whether or not he is criminally prosecuted and found guilty or acquitted, provided that the offended party is not allowed, if he is actually charged also criminally, to recover damages on both scores, and would be entitled in such eventuality only to the bigger award of the two, assuming the awards made in the two cases vary. In other words, the extinction of civil liability referred to in Par. (e) of Section 3, Rule 111, refers exclusively to civil liability founded on Article 100 of the Revised Penal Code, whereas the civil liability for the same act considered as quasi-delict only and not as a crime is not extinguished even by a declaration in the criminal case that the criminal act charged has not happened or has not been committed by the accused. Briefly stated, We here hold, in reiteration of Garcia, that culpa aquiliana includes voluntary and negligent acts which may be punishable by law. (Emphasis supplied)

The same doctrine was echoed in the case of Andamo v. Intermediate Appellate Court (191 SCRA 195 [1990]), wherein the Court held: Article 2176, whenever it refers to "fault or negligence," covers not only acts criminal in character, whether intentional and voluntary or negligent. Consequently, a civil action lies against the offender in a criminal act, whether or not he is prosecuted or found guilty or acquitted, provided that the offended party is not allowed, (if the tortfeasor is actually also charged criminally), to recover damages on both scores, and would be entitled in such eventuality only to the bigger award of the two, assuming the awards made in the two cases vary. [citing Virata v. Ochoa, 81 SCRA 472] (Emphasis supplied) Private respondents submit that the word "intentional" in the Andamo case is inaccurate obiter, and should be read as "voluntary" since intent cannot be coupled with negligence as defined by Article 365 of the Revised Penal Code. In the absence of more substantial reasons, this Court will not disturb the above doctrine on the coverage of Article 2176. Private respondents further aver that Article 33 of the New Civil Code applies only to injuries intentionally committed pursuant to the ruling in Marcia v. CA (120 SCRA 193 [1983]), and that the actions for damages allowed thereunder are ex-delicto. However, the term "physical injuries" in Article 33 has already been construed to include bodily injuries causing death (Capuno v. Pepsi-Cola Bottling Co. of the Philippines, 121 Phil. 638 [1965); Carandang v. Santiago, 97 Phil. 94 [1955]). It is not the crime of physical injuries defined in the Revised Penal Code. It includes not only physical

injuries but also consummated, frustrated, and attempted homicide (Madeja v. Caro, 126 SCRA 293 [1983]). Although in the Marcia case (supra), it was held that no independent civil action may be filed under Article 33 where the crime is the result of criminal negligence, it must be noted however, that Torzuela, the accused in the case at bar, is charged with homicide, not with reckless imprudence, whereas the defendant in Marcia was charged with reckless imprudence. Therefore, in this case, a civil action based on Article 33 lies. Private respondents also contend that their liability is subsidiary under the Revised Penal Code; and that they are not liable for Torzuela's act which is beyond the scope of his duties as a security guard. It having been established that the instant action is not ex-delicto, petitioners may proceed directly against Torzuela and the private respondents. Under Article 2180 of the New Civil Code as aforequoted, when an injury is caused by the negligence of the employee, there instantly arises a presumption of law that there was negligence on the part of the master or employer either in the selection of the servant or employee, or in supervision over him after selection or both (Layugan v. Intermediate Appellate Court, 167 SCRA 363 [1988]). The liability of the employer under Article 2180 is direct and immediate; it is not conditioned upon prior recourse against the negligent employee and a prior showing of the insolvency of such employee (Kapalaran Bus Lines v. Coronado, 176 SCRA 792 [1989]). Therefore, it is incumbent upon the private respondents to prove that they exercised the diligence of a good father of a family in the selection and supervision of their employee.

Since Article 2176 covers not only acts of negligence but also acts which are intentional and voluntary, it was therefore erroneous on the part of the trial court to dismiss petitioner's complaint simply because it failed to make allegations of attendant negligence attributable to private respondents. With respect to the issue of whether the complaint at hand states a sufficient cause of action, the general rule is that the allegations in a complaint are sufficient to constitute a cause of action against the defendants if, admitting the facts alleged, the court can render a valid judgment upon the same in accordance with the prayer therein. A cause of action exist if the following elements are present, namely: (1) a right in favor of the plaintiff by whatever means and under whatever law it arises or is created; (2) an obligation on the part of the named defendant to respect or not to violate such right; and (3) an act or omission on the part of such defendant violative of the right of the plaintiff or constituting a breach of the obligation of the defendant to the plaintiff for which the latter may maintain an action for recovery of damages (Del Bros Hotel Corporation v. CA, 210 SCRA 33 [1992]); Development Bank of the Philippines v. Pundogar, 218 SCRA 118 [1993]) This Court finds, under the foregoing premises, that the complaint sufficiently alleged an actionable breach on the part of the defendant Torzuela and respondents SUPERGUARD and/or SAFEGUARD. It is enough that the complaint alleged that Benigno Torzuela shot Napoleon Dulay resulting in the latter's death; that the shooting occurred while Torzuela was on duty; and that either SUPERGUARD and/or SAFEGUARD was Torzuela's employer and responsible for his acts. This does not

operate however, to establish that the defendants below are liable. Whether or not the shooting was actually reckless and wanton or attended by negligence and whether it was actually done within the scope of Torzuela's duties; whether the private respondents SUPERGUARD and/or SAFEGUARD failed to exercise the diligence of a good father of a family; and whether the defendants are actually liable, are questions which can be better resolved after trial on the merits where each party can present evidence to prove their respective allegations and defenses. In determining whether the allegations of a complaint are sufficient to support a cause of action, it must be borne in mind that the complaint does not have to establish or allege the facts proving the existence of a cause of action at the outset; this will have to be done at the trial on the merits of the case (Del Bros Hotel Corporation v. CA, supra). If the allegations in a complaint can furnish a sufficient basis by which the complaint can be maintained, the same should not be dismissed regardless of the defenses that may be assessed by the defendants (Rava Dev't. Corp. v. CA, 211 SCRA 152 [1992] citing Consolidated Bank & Trust Corporation v. Court of Appeals, 197 SCRA 663 [1991]). To sustain a motion to dismiss for lack of cause of action, the complaint must show that the claim for relief does not exist rather than that a claim has been defectively stated, is ambiguous, indefinite or uncertain (Azur v. Provincial Board, 27 SCRA 50 [1969]). Since the petitioners clearly sustained an injury to their rights under the law, it would be more just to allow them to present evidence of such injury. WHEREFORE, premises considered, the petition for review is hereby GRANTED. The decision of the Court of

Appeals as well as the Order of the Regional Trial Court dated April 13, 1989 are hereby REVERSED and SET ASIDE. Civil Case No. Q-89-1751 is remanded to the Regional Trial Court for trial on the merits. This decision is immediately executory. SO ORDERED. Narvasa, C.J., Regalado, Puno and Mendoza, JJ., concur.