I.

QUASI-DELICT

A. INTRODUCTORY CONCEPTS

G.R. No. L-24803 May 26, 1977

PEDRO ELCANO and PATRICIA ELCANO, in their capacity as Ascendants of Agapito Elcano,
deceased, plaintiffs-appellants,
vs.
REGINALD HILL, minor, and MARVIN HILL, as father and Natural Guardian of said
minor, defendants-appellees.

Cruz & Avecilla for appellants.

Marvin R. Hill & Associates for appellees.

BARREDO, J.:

Appeal from the order of the Court of First Instance of Quezon City dated January 29, 1965 in Civil
Case No. Q-8102, Pedro Elcano et al. vs. Reginald Hill et al. dismissing, upon motion to dismiss of
defendants, the complaint of plaintiffs for recovery of damages from defendant Reginald Hill, a
minor, married at the time of the occurrence, and his father, the defendant Marvin Hill, with whom he
was living and getting subsistence, for the killing by Reginald of the son of the plaintiffs, named
Agapito Elcano, of which, when criminally prosecuted, the said accused was acquitted on the ground
that his act was not criminal, because of "lack of intent to kill, coupled with mistake."

Actually, the motion to dismiss based on the following grounds:

1. The present action is not only against but a violation of section 1, Rule 107, which
is now Rule III, of the Revised Rules of Court;

2. The action is barred by a prior judgment which is now final and or in res-
adjudicata;

3. The complaint had no cause of action against defendant Marvin Hill, because he
was relieved as guardian of the other defendant through emancipation by marriage.

(P. 23, Record [p. 4, Record on Appeal.])

was first denied by the trial court. It was only upon motion for reconsideration of the defendants of
such denial, reiterating the above grounds that the following order was issued:

Considering the motion for reconsideration filed by the defendants on January 14,
1965 and after thoroughly examining the arguments therein contained, the Court
finds the same to be meritorious and well-founded.

WHEREFORE, the Order of this Court on December 8, 1964 is hereby reconsidered

by ordering the dismissal of the above entitled case.
 SO ORDERED.

Quezon City, Philippines, January 29, 1965. (p. 40, Record [p. 21, Record on
Appeal.)

Hence, this appeal where plaintiffs-appellants, the spouses Elcano, are presenting for Our resolution
the following assignment of errors:

THE LOWER COURT ERRED IN DISMISSING THE CASE BY UPHOLDING THE

CLAIM OF DEFENDANTS THAT -

THE PRESENT ACTION IS NOT ONLY AGAINST BUT ALSO A VIOLATION OF

SECTION 1, RULE 107, NOW RULE 111, OF THE REVISED RULES OF COURT,
AND THAT SECTION 3(c) OF RULE 111, RULES OF COURT IS APPLICABLE;

II

THE ACTION IS BARRED BY A PRIOR JUDGMENT WHICH IS NOW FINAL OR

RES-ADJUDICTA;

III

THE PRINCIPLES OF QUASI-DELICTS, ARTICLES 2176 TO 2194 OF THE CIVIL

CODE, ARE INAPPLICABLE IN THE INSTANT CASE; and

IV

THAT THE COMPLAINT STATES NO CAUSE OF ACTION AGAINST DEFENDANT

MARVIN HILL BECAUSE HE WAS RELIEVED AS GUARDIAN OF THE OTHER
DEFENDANT THROUGH EMANCIPATION BY MARRIAGE. (page 4, Record.)

It appears that for the killing of the son, Agapito, of plaintiffs-appellants, defendant- appellee
Reginald Hill was prosecuted criminally in Criminal Case No. 5102 of the Court of First Instance of
Quezon City. After due trial, he was acquitted on the ground that his act was not criminal because of
"lack of intent to kill, coupled with mistake." Parenthetically, none of the parties has favored Us with a
copy of the decision of acquittal, presumably because appellants do not dispute that such indeed
was the basis stated in the court's decision. And so, when appellants filed their complaint against
appellees Reginald and his father, Atty. Marvin Hill, on account of the death of their son, the
appellees filed the motion to dismiss above-referred to.

As We view the foregoing background of this case, the two decisive issues presented for Our
resolution are:

1. Is the present civil action for damages barred by the acquittal of Reginald in the criminal case
wherein the action for civil liability, was not reversed?

2. May Article 2180 (2nd and last paragraphs) of the Civil Code he applied against Atty. Hill,
notwithstanding the undisputed fact that at the time of the occurrence complained of. Reginald,
though a minor, living with and getting subsistenee from his father, was already legally married?
The first issue presents no more problem than the need for a reiteration and further clarification of
the dual character, criminal and civil, of fault or negligence as a source of obligation which was firmly
established in this jurisdiction in Barredo vs. Garcia, 73 Phil. 607. In that case, this Court postulated,
on the basis of a scholarly dissertation by Justice Bocobo on the nature of culpa aquiliana in relation
to culpa criminal or delito and mere culpa or fault, with pertinent citation of decisions of the Supreme
Court of Spain, the works of recognized civilians, and earlier jurisprudence of our own, that the same
given act can result in civil liability not only under the Penal Code but also under the Civil Code.
Thus, the opinion holds:

The, above case is pertinent because it shows that the same act machinist. come
under both the Penal Code and the Civil Code. In that case, the action of the agent
killeth unjustified and fraudulent and therefore could have been the subject of a
criminal action. And yet, it was held to be also a proper subject of a civil action under
article 1902 of the Civil Code. It is also to be noted that it was the employer and not
the employee who was being sued. (pp. 615-616, 73 Phil.). 1

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

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

The legal provisions, authors, and cases already invoked should ordinarily be
sufficient to dispose of this case. But inasmuch as we are announcing doctrines that
have been little understood, in the past, it might not he inappropriate to indicate their
foundations.

Firstly, the Revised Penal Code in articles 365 punishes not only reckless but also
simple negligence. If we were to hold that articles 1902 to 1910 of the Civil Code
refer only to fault or negligence not punished by law, accordingly to the literal import
of article 1093 of the Civil Code, the legal institution of culpa aquiliana would have
very little scope and application in actual life. Death or injury to persons and damage
to property- through any degree of negligence - even the slightest - would have to be
Idemnified only through the principle of civil liability arising from a crime. In such a
state of affairs, what sphere would remain for cuasi-delito or culpa aquiliana? We are
loath to impute to the lawmaker any intention to bring about a situation so absurd and
anomalous. Nor are we, in the interpretation of the laws, disposed to uphold the letter
that killeth rather than the spirit that giveth life. We will not use the literal meaning of
the law to smother and render almost lifeless a principle of such ancient origin and
 such full-grown development as culpa aquiliana or cuasi-delito, which is conserved
and made enduring in articles 1902 to 1910 of the Spanish Civil Code.

Secondary, to find the accused guilty in a criminal case, proof of guilt beyond
reasonable doubt is required, while in a civil case, preponderance of evidence is
sufficient to make the defendant pay in damages. There are numerous cases of
criminal negligence which can not be shown beyond reasonable doubt, but can be
proved by a preponderance of evidence. In such cases, the defendant can and
should be made responsible in a civil action under articles 1902 to 1910 of the Civil
Code. Otherwise. there would be many instances of unvindicated civil wrongs. "Ubi
jus Idemnified remedium." (p. 620,73 Phil.)

Fourthly, because of the broad sweep of the provisions of both the Penal Code and
the Civil Code on this subject, which has given rise to the overlapping or concurrence
of spheres already discussed, and for lack of understanding of the character and
efficacy of the action for culpa aquiliana, there has grown up a common practice to
seek damages only by virtue of the civil responsibility arising from a crime, forgetting
that there is another remedy, which is by invoking articles 1902-1910 of the Civil
Code. Although this habitual method is allowed by, our laws, it has nevertheless
rendered practically useless and nugatory the more expeditious and effective remedy
based on culpa aquiliana or culpa extra-contractual. In the present case, we are
asked to help perpetuate this usual course. But we believe it is high time we pointed
out to the harms done by such practice and to restore the principle of responsibility
for fault or negligence under articles 1902 et seq. of the Civil Code to its full rigor. It is
high time we caused the stream of quasi-delict or culpa aquiliana to flow on its own
natural channel, so that its waters may no longer be diverted into that of a crime
under the Penal Code. This will, it is believed, make for the better safeguarding or
private rights because it realtor, an ancient and additional remedy, and for the further
reason that an independent civil action, not depending on the issues, limitations and
results of a criminal prosecution, and entirely directed by the party wronged or his
counsel, is more likely to secure adequate and efficacious redress. (p. 621, 73 Phil.)

Contrary to an immediate impression one might get upon a reading of the foregoing excerpts from
the opinion in Garcia that the concurrence of the Penal Code and the Civil Code therein referred to
contemplate only acts of negligence and not intentional voluntary acts - deeper reflection would
reveal that the thrust of the pronouncements therein is not so limited, but that in fact it actually
extends to fault or culpa. This can be seen in the reference made therein to the Sentence of the
Supreme Court of Spain of February 14, 1919, supra, which involved a case of fraud or estafa, not a
negligent act. Indeed, Article 1093 of the Civil Code of Spain, in force here at the time of Garcia,
provided textually that obligations "which are derived from acts or omissions in which fault or
negligence, not punishable by law, intervene shall be the subject of Chapter II, Title XV of this book
(which refers to quasi-delicts.)" And it is precisely the underline qualification, "not punishable by law",
that Justice Bocobo emphasized could lead to an ultimo construction or interpretation of the letter of
the law that "killeth, rather than the spirit that giveth lift- hence, the ruling that "(W)e will not use the
literal meaning of the law to smother and render almost lifeless a principle of such ancient origin and
such full-grown development as culpa aquiliana or quasi-delito, which is conserved and made
enduring in articles 1902 to 1910 of the Spanish Civil Code." And so, because Justice Bacobo was
Chairman of the Code Commission that drafted the original text of the new Civil Code, it is to be
noted that the said Code, which was enacted after the Garcia doctrine, no longer uses the term, 11
not punishable by law," thereby making it clear that the concept of culpa aquiliana includes acts
which are criminal in character or in violation of the penal law, whether voluntary or matter. Thus, the
corresponding provisions to said Article 1093 in the new code, which is Article 1162, simply says,
"Obligations derived from quasi-delicto shall be governed by the provisions of Chapter 2, Title XVII of
this Book, (on quasi-delicts) and by special laws." More precisely, a new provision, Article 2177 of
the new code provides:

ART. 2177. Responsibility for fault or negligence under the preceding article is
entirely separate and distinct from the civil liability arising from negligence under the
Penal Code. But the plaintiff cannot recover damages twice for the same act or
omission of the defendant.

According to the Code Commission: "The foregoing provision (Article 2177) through at first sight
startling, is not so novel or extraordinary when we consider the exact nature of criminal and civil
negligence. The former is a violation of the criminal law, while the latter is a "culpa aquiliana" or
quasi-delict, of ancient origin, having always had its own foundation and individuality, separate from
criminal negligence. Such distinction between criminal negligence and "culpa extracontractual" or
"cuasi-delito" has been sustained by decision of the Supreme Court of Spain and maintained as
clear, sound and perfectly tenable by Maura, an outstanding Spanish jurist. Therefore, under the
proposed Article 2177, acquittal from an accusation of criminal negligence, whether on reasonable
doubt or not, shall not be a bar to a subsequent civil action, not for civil liability arising from criminal
negligence, but for damages due to a quasi-delict or 'culpa aquiliana'. But said article forestalls a
double recovery.", (Report of the Code) Commission, p. 162.)

Although, again, this Article 2177 does seem to literally refer to only acts of negligence, the same
argument of Justice Bacobo about construction that upholds "the spirit that giveth lift- rather than that
which is literal that killeth the intent of the lawmaker should be observed in applying the same. And
considering that the preliminary chapter on human relations of the new Civil Code definitely
establishes the separability and independence of liability in a civil action for acts criminal in character
(under Articles 29 to 32) from the civil responsibility arising from crime fixed by Article 100 of the
Revised Penal Code, and, in a sense, the Rules of Court, under Sections 2 and 3 (c), Rule 111,
contemplate also the same separability, it is "more congruent with the spirit of law, equity and justice,
and more in harmony with modern progress"- to borrow the felicitous relevant language in Rakes vs.
Atlantic. Gulf and Pacific Co., 7 Phil. 359, to hold, as We do hold, that Article 2176, where it refers to
"fault or negligencia covers not only acts "not punishable by law" but also acts criminal in character,
whether intentional and voluntary or negligent. Consequently, a separate civil action lies against the
offender in a criminal act, whether or not he is criminally prosecuted and found guilty or acquitted,
provided that the offended party is not allowed, if he is actually charged also criminally, to recover
damages on both scores, and would be entitled in such eventuality only to the bigger award of the
two, assuming the awards made in the two cases vary. In other words, the extinction of civil liability
referred to in Par. (e) of Section 3, Rule 111, refers exclusively to civil liability founded on Article 100
of the Revised Penal Code, whereas the civil liability for the same act considered as a quasi-
delict only and not as a crime is not estinguished even by a declaration in the criminal case that the
criminal act charged has not happened or has not been committed by the accused. Briefly stated,
We here hold, in reiteration of Garcia, that culpa aquiliana includes voluntary and negligent acts
which may be punishable by law.4

It results, therefore, that the acquittal of Reginal Hill in the criminal case has not extinguished his
liability for quasi-delict, hence that acquittal is not a bar to the instant action against him.

Coming now to the second issue about the effect of Reginald's emancipation by marriage on the
possible civil liability of Atty. Hill, his father, it is also Our considered opinion that the conclusion of
appellees that Atty. Hill is already free from responsibility cannot be upheld.

While it is true that parental authority is terminated upon emancipation of the child (Article 327, Civil
Code), and under Article 397, emancipation takes place "by the marriage of the minor (child)", it is,
however, also clear that pursuant to Article 399, emancipation by marriage of the minor is not really
full or absolute. Thus "(E)mancipation by marriage or by voluntary concession shall terminate
parental authority over the child's person. It shall enable the minor to administer his property as
though he were of age, but he cannot borrow money or alienate or encumber real property without
the consent of his father or mother, or guardian. He can sue and be sued in court only with the
assistance of his father, mother or guardian."

Now under Article 2180, "(T)he obligation imposed by article 2176 is demandable not only for one's
own acts or omissions, but also for those of persons for whom one is responsible. The father and, in
case of his death or incapacity, the mother, are responsible. The father and, in case of his death or
incapacity, the mother, are responsible for the damages caused by the minor children who live in
their company." In the instant case, it is not controverted that Reginald, although married, was living
with his father and getting subsistence from him at the time of the occurrence in question. Factually,
therefore, Reginald was still subservient to and dependent on his father, a situation which is not
unusual.

It must be borne in mind that, according to Manresa, the reason behind the joint and solidary liability
of presuncion with their offending child under Article 2180 is that is the obligation of the parent to
supervise their minor children in order to prevent them from causing damage to third persons. 5 On
the other hand, the clear implication of Article 399, in providing that a minor emancipated by marriage
may not, nevertheless, sue or be sued without the assistance of the parents, is that such emancipation
does not carry with it freedom to enter into transactions or do any act that can give rise to judicial
litigation. (See Manresa, Id., Vol. II, pp. 766-767, 776.) And surely, killing someone else invites judicial
action. Otherwise stated, the marriage of a minor child does not relieve the parents of the duty to see to it
that the child, while still a minor, does not give answerable for the borrowings of money and alienation or
encumbering of real property which cannot be done by their minor married child without their consent.
(Art. 399; Manresa, supra.)

Accordingly, in Our considered view, Article 2180 applies to Atty. Hill notwithstanding the
emancipation by marriage of Reginald. However, inasmuch as it is evident that Reginald is now of
age, as a matter of equity, the liability of Atty. Hill has become milling, subsidiary to that of his son.

WHEREFORE, the order appealed from is reversed and the trial court is ordered to proceed in
accordance with the foregoing opinion. Costs against appellees.

B. QUASI-DELICT DISTINGUISHED FROM:

B.1. CULPA CRIMINAL

G.R. No. L-48006 July 8, 1942

FAUSTO BARREDO, petitioner,

vs.
SEVERINO GARCIA and TIMOTEA ALMARIO, respondents.

Celedonio P. Gloria and Antonio Barredo for petitioner.

Jose G. Advincula for respondents.

BOCOBO, J.:
This case comes up from the Court of Appeals which held the petitioner herein, Fausto Barredo,
liable in damages for the death of Faustino Garcia caused by the negligence of Pedro Fontanilla, a
taxi driver employed by said Fausto Barredo.

At about half past one in the morning of May 3, 1936, on the road between Malabon and Navotas,
Province of Rizal, there was a head-on collision between a taxi of the Malate Taxicab driven by
Pedro Fontanilla and a carretela guided by Pedro Dimapalis. The carretela was overturned, and one
of its passengers, 16-year-old boy Faustino Garcia, suffered injuries from which he died two days
later. A criminal action was filed against Fontanilla in the Court of First Instance of Rizal, and he was
convicted and sentenced to an indeterminate sentence of one year and one day to two years
of prision correccional. The court in the criminal case granted the petition that the right to bring a
separate civil action be reserved. The Court of Appeals affirmed the sentence of the lower court in
the criminal case. Severino Garcia and Timotea Almario, parents of the deceased on March 7, 1939,
brought an action in the Court of First Instance of Manila against Fausto Barredo as the sole
proprietor of the Malate Taxicab and employer of Pedro Fontanilla. On July 8, 1939, the Court of
First Instance of Manila awarded damages in favor of the plaintiffs for P2,000 plus legal interest from
the date of the complaint. This decision was modified by the Court of Appeals by reducing the
damages to P1,000 with legal interest from the time the action was instituted. It is undisputed that
Fontanilla 's negligence was the cause of the mishap, as he was driving on the wrong side of the
road, and at high speed. As to Barredo's responsibility, the Court of Appeals found:

... It is admitted that defendant is Fontanilla's employer. There is proof that he exercised the
diligence of a good father of a family to prevent damage. (See p. 22, appellant's brief.) In fact
it is shown he was careless in employing Fontanilla who had been caught several times for
violation of the Automobile Law and speeding (Exhibit A) — violation which appeared in the
records of the Bureau of Public Works available to be public and to himself. Therefore, he
must indemnify plaintiffs under the provisions of article 1903 of the Civil Code.

The main theory of the defense is that the liability of Fausto Barredo is governed by the Revised
Penal Code; hence, his liability is only subsidiary, and as there has been no civil action against
Pedro Fontanilla, the person criminally liable, Barredo cannot be held responsible in the case. The
petitioner's brief states on page 10:

... The Court of Appeals holds that the petitioner is being sued for his failure to exercise all
the diligence of a good father of a family in the selection and supervision of Pedro Fontanilla
to prevent damages suffered by the respondents. In other words, The Court of Appeals
insists on applying in the case article 1903 of the Civil Code. Article 1903 of the Civil Code is
found in Chapter II, Title 16, Book IV of the Civil Code. This fact makes said article to a civil
liability arising from a crime as in the case at bar simply because Chapter II of Title 16 of
Book IV of the Civil Code, in the precise words of article 1903 of the Civil Code itself, is
applicable only to "those (obligations) arising from wrongful or negligent acts or commission
not punishable by law.

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

... We cannot agree to the defendant's contention. The liability sought to be imposed upon
him in this action is not a civil obligation arising from a felony or a misdemeanor (the crime of
Pedro Fontanilla,), but an obligation imposed in article 1903 of the Civil Code by reason of
his negligence in the selection or supervision of his servant or employee.

The pivotal question in this case is whether the plaintiffs may bring this separate civil action against
Fausto Barredo, thus making him primarily and directly, responsible under article 1903 of the Civil
Code as an employer of Pedro Fontanilla. The defendant maintains that Fontanilla's negligence
being punishable by the Penal Code, his (defendant's) liability as an employer is only subsidiary,
according to said Penal code, but Fontanilla has not been sued in a civil action and his property has
not been exhausted. To decide the main issue, we must cut through the tangle that has, in the minds
of many confused and jumbled together delitos and cuasi delitos, or crimes under the Penal Code
and fault or negligence under articles 1902-1910 of the Civil Code. This should be done, because
justice may be lost in a labyrinth, unless principles and remedies are distinctly envisaged.
Fortunately, we are aided in our inquiry by the luminous presentation of the perplexing subject by
renown jurists and we are likewise guided by the decisions of this Court in previous cases as well as
by the solemn clarity of the consideration in several sentences of the Supreme Tribunal of Spain.

Authorities support the proposition that a quasi-delict or "culpa aquiliana " is a separate legal
institution under the Civil Code with a substantivity all its own, and individuality that is entirely apart
and independent from delict or crime. Upon this principle and on the wording and spirit article 1903
of the Civil Code, the primary and direct responsibility of employers may be safely anchored.

The pertinent provisions of the Civil Code and Revised Penal Code are as follows:

CIVIL CODE

ART. 1089 Obligations arise from law, from contracts and quasi-contracts, and from acts and
omissions which are unlawful or in which any kind of fault or negligence intervenes.

xxx xxx xxx

ART. 1092. Civil obligations arising from felonies or misdemeanors shall be governed by the
provisions of the Penal Code.

ART. 1093. Those which are derived from acts or omissions in which fault or negligence, not
punishable by law, intervenes shall be subject to the provisions of Chapter II, Title XVI of this
book.

xxx xxx xxx

ART 1902. Any person who by an act or omission causes damage to another by his fault or
negligence shall be liable for the damage so done.

ART. 1903. The obligation imposed by the next preceding article is enforcible, not only for
personal acts and omissions, but also for those of persons for whom another is responsible.

The father and in, case of his death or incapacity, the mother, are liable for any damages
caused by the minor children who live with them.

Guardians are liable for damages done by minors or incapacitated persons subject to their
authority and living with them.

Owners or directors of an establishment or business are equally liable for any damages
caused by their employees while engaged in the branch of the service in which employed, or
on occasion of the performance of their duties.
 The State is subject to the same liability when it acts through a special agent, but not if the
damage shall have been caused by the official upon whom properly devolved the duty of
doing the act performed, in which case the provisions of the next preceding article shall be
applicable.

Finally, teachers or directors of arts trades are liable for any damages caused by their pupils
or apprentices while they are under their custody.

The liability imposed by this article shall cease in case the persons mentioned therein prove
that they are exercised all the diligence of a good father of a family to prevent the damage.

ART. 1904. Any person who pays for damage caused by his employees may recover from
the latter what he may have paid.

REVISED PENAL CODE

ART. 100. Civil liability of a person guilty of felony. — Every person criminally liable for a
felony is also civilly liable.

ART. 101. Rules regarding civil liability in certain cases. — The exemption from criminal
liability established in subdivisions 1, 2, 3, 5, and 6 of article 12 and in subdivision 4 of article
11 of this Code does not include exemption from civil liability, which shall be enforced to the
following rules:

First. In cases of subdivision, 1, 2 and 3 of article 12 the civil liability for acts committed by
any imbecile or insane person, and by a person under nine years of age, or by one over nine
but under fifteen years of age, who has acted without discernment shall devolve upon those
having such person under their legal authority or control, unless it appears that there was no
fault or negligence on their part.

Should there be no person having such insane, imbecile or minor under his authority, legal
guardianship, or control, or if such person be insolvent, said insane, imbecile, or minor shall
respond with their own property, excepting property exempt from execution, in accordance
with the civil law.

Second. In cases falling within subdivision 4 of article 11, the person for whose benefit the
harm has been prevented shall be civilly liable in proportion to the benefit which they may
have received.

The courts shall determine, in their sound discretion, the proportionate amount for which each one
shall be liable.

When the respective shares can not be equitably determined, even approximately, or when the
liability also attaches to the Government, or to the majority of the inhabitants of the town, and, in all
events, whenever the damage has been caused with the consent of the authorities or their agents,
indemnification shall be made in the manner prescribed by special laws or regulations.

Third. In cases falling within subdivisions 5 and 6 of article 12, the persons using violence or causing
the fear shall be primarily liable and secondarily, or, if there be no such persons, those doing the act
shall be liable, saving always to the latter that part of their property exempt from execution.
 ART. 102. Subsidiary civil liability of innkeepers, tavern keepers and proprietors of
establishment. — In default of persons criminally liable, innkeepers, tavern keepers, and any
other persons or corporation shall be civilly liable for crimes committed in their
establishments, in all cases where a violation of municipal ordinances or some general or
special police regulation shall have been committed by them or their employees.

Innkeepers are also subsidiarily liable for the restitution of goods taken by robbery or theft
within their houses lodging therein, or the person, or for the payment of the value thereof,
provided that such guests shall have notified in advance the innkeeper himself, or the person
representing him, of the deposit of such goods within the inn; and shall furthermore have
followed the directions which such innkeeper or his representative may have given them with
respect to the care of and vigilance over such goods. No liability shall attach in case of
robbery with violence against or intimidation against or intimidation of persons unless
committed by the innkeeper's employees.

ART. 103. Subsidiary civil liability of other persons. — The subsidiary liability established in
the next preceding article shall also apply to employers, teachers, persons, and corporations
engaged in any kind of industry for felonies committed by their servants, pupils, workmen,
apprentices, or employees in the discharge of their duties.

xxx xxx xxx

ART. 365. Imprudence and negligence. — Any person who, by reckless imprudence, shall
commit any act which, had it been intentional, would constitute a grave felony, shall suffer
the penalty of arresto mayor in its maximum period to prision correccional in its minimum
period; if it would have constituted a less grave felony, the penalty of arresto mayor in its
minimum and medium periods shall be imposed.

Any person who, by simple imprudence or negligence, shall commit an act which would
otherwise constitute a grave felony, shall suffer the penalty of arresto mayor in its medium
and maximum periods; if it would have constituted a less serious felony, the penalty
of arresto mayor in its minimum period shall be imposed."

It will thus be seen that while the terms of articles 1902 of the Civil Code seem to be broad enough
to cover the driver's negligence in the instant case, nevertheless article 1093 limits cuasi-delitos to
acts or omissions "not punishable by law." But inasmuch as article 365 of the Revised Penal Code
punishes not only reckless but even simple imprudence or negligence, the fault or negligence under
article 1902 of the Civil Code has apparently been crowded out. It is this overlapping that makes the
"confusion worse confounded." However, a closer study shows that such a concurrence of scope in
regard to negligent acts does not destroy the distinction between the civil liability arising from a crime
and the responsibility for cuasi-delitos or culpa extra-contractual. The same negligent act causing
damages may produce civil liability arising from a crime under article 100 of the Revised Penal
Code, or create an action for cuasi-delito or culpa extra-contractual under articles 1902-1910 of the
Civil Code.

The individuality of cuasi-delito or culpa extra-contractual looms clear and unmistakable. This legal
institution is of ancient lineage, one of its early ancestors being the Lex Aquilia in the Roman Law. In
fact, in Spanish legal terminology, this responsibility is often referred to as culpa aquiliana. The
Partidas also contributed to the genealogy of the present fault or negligence under the Civil Code;
for instance, Law 6, Title 15, of Partida 7, says: "Tenudo es de fazer emienda, porque, como quier
que el non fizo a sabiendas en daño al otro, pero acaescio por su culpa."
The distinctive nature of cuasi-delitos survives in the Civil Code. According to article 1089, one of the
five sources of obligations is this legal institution of cuasi-delito or culpa extra-contractual: "los actos
. . . en que intervenga cualquier genero de culpa o negligencia." Then article 1093 provides that this
kind of obligation shall be governed by Chapter II of Title XVI of Book IV, meaning articles 1902-
0910. This portion of the Civil Code is exclusively devoted to the legal institution of culpa aquiliana.

Some of the differences between crimes under the Penal Code and the culpa aquiliana or cuasi-
delito under the Civil Code are:

1. That crimes affect the public interest, while cuasi-delitos are only of private concern.

2. That, consequently, the Penal Code punishes or corrects the criminal act, while the Civil Code, by
means of indemnification, merely repairs the damage.

3. That delicts are not as broad as quasi-delicts, because the former are punished only if there is a
penal law clearly covering them, while the latter, cuasi-delitos, include all acts in which "any king of
fault or negligence intervenes." However, it should be noted that not all violations of the penal law
produce civil responsibility, such as begging in contravention of ordinances, violation of the game
laws, infraction of the rules of traffic when nobody is hurt. (See Colin and Capitant, "Curso Elemental
de Derecho Civil," Vol. 3, p. 728.)

Let us now ascertain what some jurists say on the separate existence of quasi-delicts and the
employer's primary and direct liability under article 1903 of the Civil Code.

Dorado Montero in his essay on "Responsibilidad" in the "Enciclopedia Juridica Española" (Vol.
XXVII, p. 414) says:

El concepto juridico de la responsabilidad civil abarca diversos aspectos y comprende a

diferentes personas. Asi, existe una responsabilidad civil propiamente dicha, que en ningun
casl lleva aparejada responsabilidad criminal alguna, y otra que es consecuencia
indeclinable de la penal que nace de todo delito o falta."

The juridical concept of civil responsibility has various aspects and comprises different
persons. Thus, there is a civil responsibility, properly speaking, which in no case carries with
it any criminal responsibility, and another which is a necessary consequence of the penal
liability as a result of every felony or misdemeanor."

Maura, an outstanding authority, was consulted on the following case: There had been a collision
between two trains belonging respectively to the Ferrocarril Cantabrico and the Ferrocarril del Norte.
An employee of the latter had been prosecuted in a criminal case, in which the company had been
made a party as subsidiarily responsible in civil damages. The employee had been acquitted in the
criminal case, and the employer, the Ferrocarril del Norte, had also been exonerated. The question
asked was whether the Ferrocarril Cantabrico could still bring a civil action for damages against the
Ferrocarril del Norte. Maura's opinion was in the affirmative, stating in part (Maura, Dictamenes, Vol.
6, pp. 511-513):

Quedando las cosas asi, a proposito de la realidad pura y neta de los hechos, todavia
menos parece sostenible que exista cosa juzgada acerca de la obligacion civil de indemnizar
los quebrantos y menoscabos inferidos por el choque de los trenes. El titulo en que se funda
la accion para demandar el resarcimiento, no puede confundirse con las responsabilidades
civiles nacidas de delito, siquiera exista en este, sea el cual sea, una culpa rodeada de
notas agravatorias que motivan sanciones penales, mas o menos severas. La lesion
causada por delito o falta en los derechos civiles, requiere restituciones, reparaciones o
indemnizaciones, que cual la pena misma atañen al orden publico; por tal motivo vienen
encomendadas, de ordinario, al Ministerio Fiscal; y claro es que si por esta via se
enmiendan los quebrantos y menoscabos, el agraviado excusa procurar el ya conseguido
desagravio; pero esta eventual coincidencia de los efectos, no borra la diversidad originaria
de las acciones civiles para pedir indemnizacion.

Estas, para el caso actual (prescindiendo de culpas contractuales, que no vendrian a cuento
y que tiene otro regimen), dimanan, segun el articulo 1902 del Codigo Civil, de toda accion u
omision, causante de daños o perjuicios, en que intervenga culpa o negligencia. Es trivial
que acciones semejantes son ejercitadas ante los Tribunales de lo civil cotidianamente, sin
que la Justicia punitiva tenga que mezclarse en los asuntos. Los articulos 18 al 21 y 121 al
128 del Codigo Penal, atentos al espiritu y a los fines sociales y politicos del mismo,
desenvuelven y ordenan la materia de responsabilidades civiles nacidas de delito, en
terminos separados del regimen por ley comun de la culpa que se denomina aquiliana, por
alusion a precedentes legislativos del Corpus Juris. Seria intempestivo un paralelo entre
aquellas ordenaciones, y la de la obligacion de indemnizar a titulo de culpa civil; pero viene
al caso y es necesaria una de las diferenciaciones que en el tal paralelo se notarian.

Los articulos 20 y 21 del Codigo Penal, despues de distribuir a su modo las

responsabilidades civiles, entre los que sean por diversos conceptos culpables del delito o
falta, las hacen extensivas a las empresas y los establecimientos al servicio de los cuales
estan los delincuentes; pero con caracter subsidiario, o sea, segun el texto literal, en defecto
de los que sean responsables criminalmente. No coincide en ello el Codigo Civil, cuyo
articulo 1903, dice; La obligacion que impone el articulo anterior es exigible, no solo por los
actos y omisiones propios, sino por los de aquellas personas de quienes se debe responder;
personas en la enumeracion de las cuales figuran los dependientes y empleados de los
establecimientos o empresas, sea por actos del servicio, sea con ocasion de sus funciones.
Por esto acontece, y se observa en la jurisprudencia, que las empresas, despues de
intervenir en las causas criminales con el caracter subsidiario de su responsabilidad civil por
razon del delito, son demandadas y condenadas directa y aisladamente, cuando se trata de
la obligacion, ante los tribunales civiles.

Siendo como se ve, diverso el titulo de esta obligacion, y formando verdadero postulado de
nuestro regimen judicial la separacion entre justicia punitiva y tribunales de lo civil, de suerte
que tienen unos y otros normas de fondo en distintos cuerpos legales, y diferentes modos
de proceder, habiendose, por añadidura, abstenido de asistir al juicio criminal la Compañia
del Ferrocarril Cantabrico, que se reservo ejercitar sus acciones, parece innegable que la de
indemnizacion por los daños y perjuicios que le irrogo el choque, no estuvo sub judice ante
el Tribunal del Jurado, ni fue sentenciada, sino que permanecio intacta, al pronunciarse el
fallo de 21 de marzo. Aun cuando el veredicto no hubiese sido de inculpabilidad, mostrose
mas arriba, que tal accion quedaba legitimamente reservada para despues del proceso;
pero al declararse que no existio delito, ni responsabilidad dimanada de delito,
materia unica sobre que tenian jurisdiccion aquellos juzgadores, se redobla el motivo para la
obligacion civil ex lege, y se patentiza mas y mas que la accion para pedir su cumplimiento
permanece incolume, extraña a la cosa juzgada.

As things are, apropos of the reality pure and simple of the facts, it seems less tenable that
there should be res judicata with regard to the civil obligation for damages on account of the
losses caused by the collision of the trains. The title upon which the action for reparation is
based cannot be confused with the civil responsibilities born of a crime, because there exists
in the latter, whatever each nature, a culpa surrounded with aggravating aspects which give
rise to penal measures that are more or less severe. The injury caused by a felony or
 misdemeanor upon civil rights requires restitutions, reparations, or indemnifications which,
like the penalty itself, affect public order; for this reason, they are ordinarily entrusted to the
office of the prosecuting attorney; and it is clear that if by this means the losses and
damages are repaired, the injured party no longer desires to seek another relief; but this
coincidence of effects does not eliminate the peculiar nature of civil actions to ask for
indemnity.

Such civil actions in the present case (without referring to contractual faults which are not
pertinent and belong to another scope) are derived, according to article 1902 of the Civil
Code, from every act or omission causing losses and damages in which culpa or negligence
intervenes. It is unimportant that such actions are every day filed before the civil courts
without the criminal courts interfering therewith. Articles 18 to 21 and 121 to 128 of the Penal
Code, bearing in mind the spirit and the social and political purposes of that Code, develop
and regulate the matter of civil responsibilities arising from a crime, separately from the
regime under common law, of culpa which is known as aquiliana, in accordance with
legislative precedent of the Corpus Juris. It would be unwarranted to make a detailed
comparison between the former provisions and that regarding the obligation to indemnify on
account of civil culpa; but it is pertinent and necessary to point out to one of such differences.

Articles 20 and 21 of the Penal Code, after distriburing in their own way the civil
responsibilities among those who, for different reasons, are guilty of felony or misdemeanor,
make such civil responsibilities applicable to enterprises and establishments for which the
guilty parties render service, but with subsidiary character, that is to say, according to the
wording of the Penal Code, in default of those who are criminally responsible. In this regard,
the Civil Code does not coincide because article 1903 says: "The obligation imposed by the
next preceding article is demandable, not only for personal acts and omissions, but also for
those of persons for whom another is responsible." Among the persons enumerated are the
subordinates and employees of establishments or enterprises, either for acts during their
service or on the occasion of their functions. It is for this reason that it happens, and it is so
observed in judicial decisions, that the companies or enterprises, after taking part in the
criminal cases because of their subsidiary civil responsibility by reason of the crime, are sued
and sentenced directly and separately with regard to the obligation, before the civil courts.

Seeing that the title of this obligation is different, and the separation between punitive justice
and the civil courts being a true postulate of our judicial system, so that they have different
fundamental norms in different codes, as well as different modes of procedure, and
inasmuch as the Compaña del Ferrocarril Cantabrico has abstained from taking part in the
criminal case and has reserved the right to exercise its actions, it seems undeniable that the
action for indemnification for the losses and damages caused to it by the collision was
not sub judice before the Tribunal del Jurado, nor was it the subject of a sentence, but it
remained intact when the decision of March 21 was rendered. Even if the verdict had not
been that of acquittal, it has already been shown that such action had been legitimately
reserved till after the criminal prosecution; but because of the declaration of the non-
existence of the felony and the non-existence of the responsibility arising from the crime,
which was the sole subject matter upon which the Tribunal del Jurado had jurisdiction, there
is greater reason for the civil obligation ex lege, and it becomes clearer that the action for its
enforcement remain intact and is not res judicata.

Laurent, a jurist who has written a monumental work on the French Civil Code, on which the Spanish
Civil Code is largely based and whose provisions on cuasi-delito or culpa extra-contractual are
similar to those of the Spanish Civil Code, says, referring to article 1384 of the French Civil Code
which corresponds to article 1903, Spanish Civil Code:
 The action can be brought directly against the person responsible (for another), without
including the author of the act. The action against the principal is accessory in the sense that
it implies the existence of a prejudicial act committed by the employee, but it is not subsidiary
in the sense that it can not be instituted till after the judgment against the author of the act or
at least, that it is subsidiary to the principal action; the action for responsibility (of the
employer) is in itself a principal action. (Laurent, Principles of French Civil Law, Spanish
translation, Vol. 20, pp. 734-735.)

Amandi, in his "Cuestionario del Codigo Civil Reformado" (Vol. 4, pp. 429, 430), declares that the
responsibility of the employer is principal and not subsidiary. He writes:

Cuestion 1. La responsabilidad declarada en el articulo 1903 por las acciones u omisiones

de aquellas personas por las que se debe responder, es subsidiaria? es principal? Para
contestar a esta pregunta es necesario saber, en primer lugar, en que se funda el precepto
legal. Es que realmente se impone una responsabilidad por una falta ajena? Asi parece a
primera vista; pero semejante afirmacion seria contraria a la justicia y a la maxima universal,
segun la que las faltas son personales, y cada uno responde de aquellas que le son
imputables. La responsabilidad de que tratamos se impone con ocasion de un delito o culpa,
pero no por causa de ellos, sino por causa del causi delito, esto es, de la imprudencia o de
la negligencia del padre, del tutor, del dueño o director del establecimiento, del maestro, etc.
Cuando cualquiera de las personas que enumera el articulo citado (menores de edad,
incapacitados, dependientes, aprendices) causan un daño, la ley presume que el padre, el
tutor, el maestro, etc., han cometido una falta de negligencia para prevenir o evitar el daño.
Esta falta es la que la ley castiga. No hay, pues, responsabilidad por un hecho ajeno, sino
en la apariencia; en realidad la responsabilidad se exige por un hecho propio. La idea de
que esa responsabilidad sea subsidiaria es, por lo tanto, completamente inadmisible.

Question No. 1. Is the responsibility declared in article 1903 for the acts or omissions of
those persons for who one is responsible, subsidiary or principal? In order to answer this
question it is necessary to know, in the first place, on what the legal provision is based. Is it
true that there is a responsibility for the fault of another person? It seems so at first sight; but
such assertion would be contrary to justice and to the universal maxim that all faults are
personal, and that everyone is liable for those faults that can be imputed to him. The
responsibility in question is imposed on the occasion of a crime or fault, but not because of
the same, but because of the cuasi-delito, that is to say, the imprudence or negligence of the
father, guardian, proprietor or manager of the establishment, of the teacher, etc. Whenever
anyone of the persons enumerated in the article referred to (minors, incapacitated persons,
employees, apprentices) causes any damage, the law presumes that the father, guardian,
teacher, etc. have committed an act of negligence in not preventing or avoiding the damage.
It is this fault that is condemned by the law. It is, therefore, only apparent that there is a
responsibility for the act of another; in reality the responsibility exacted is for one's own act.
The idea that such responsibility is subsidiary is, therefore, completely inadmissible.

Oyuelos, in his "Digesto: Principios, Doctrina y Jurisprudencia, Referentes al Codigo Civil Español,"
says in Vol. VII, p. 743:

Es decir, no responde de hechos ajenos, porque se responde solo de su propia culpa,

doctrina del articulo 1902; mas por excepcion, se responde de la ajena respecto de aquellas
personas con las que media algun nexo o vinculo, que motiva o razona la responsabilidad.
Esta responsabilidad, es directa o es subsidiaria? En el orden penal, el Codigo de esta clase
distingue entre menores e incapacitados y los demas, declarando directa la primera (articulo
19) y subsidiaria la segunda (articulos 20 y 21); pero en el orden civil, en el caso del articulo
 1903, ha de entenderse directa, por el tenor del articulo que impone la responsabilidad
precisamente "por los actos de aquellas personas de quienes se deba responder."

That is to say, one is not responsible for the acts of others, because one is liable only for his
own faults, this being the doctrine of article 1902; but, by exception, one is liable for the acts
of those persons with whom there is a bond or tie which gives rise to the responsibility. Is this
responsibility direct or subsidiary? In the order of the penal law, the Penal Code
distinguishes between minors and incapacitated persons on the one hand, and other
persons on the other, declaring that the responsibility for the former is direct (article 19), and
for the latter, subsidiary (articles 20 and 21); but in the scheme of the civil law, in the case of
article 1903, the responsibility should be understood as direct, according to the tenor of that
articles, for precisely it imposes responsibility "for the acts of those persons for whom one
should be responsible."

Coming now to the sentences of the Supreme Tribunal of Spain, that court has upheld the principles
above set forth: that a quasi-delict or culpa extra-contractual is a separate and distinct legal
institution, independent from the civil responsibility arising from criminal liability, and that an
employer is, under article 1903 of the Civil Code, primarily and directly responsible for the negligent
acts of his employee.

One of the most important of those Spanish decisions is that of October 21, 1910. In that case,
Ramon Lafuente died as the result of having been run over by a street car owned by the "compañia
Electric Madrileña de Traccion." The conductor was prosecuted in a criminal case but he was
acquitted. Thereupon, the widow filed a civil action against the street car company, paying for
damages in the amount of 15,000 pesetas. The lower court awarded damages; so the company
appealed to the Supreme Tribunal, alleging violation of articles 1902 and 1903 of the Civil Code
because by final judgment the non-existence of fault or negligence had been declared. The Supreme
Court of Spain dismissed the appeal, saying:

Considerando que el primer motivo del recurso se funda en el equivocado supuesto de que
el Tribunal a quo, al condonar a la compañia Electrica Madrileña al pago del daño causado
con la muerte de Ramon La fuente Izquierdo, desconoce el valor y efectos juridicos de la
sentencia absolutoria deictada en la causa criminal que se siguio por el mismo hecho,
cuando es lo cierto que de este han conocido las dos jurisdicciones bajo diferentes as
pectos, y como la de lo criminal declrao dentro de los limites de su competencia que el
hecho de que se trata no era constitutivo de delito por no haber mediado descuido o
negligencia graves, lo que no excluye, siendo este el unico fundamento del fallo absolutorio,
el concurso de la culpa o negligencia no califacadas, fuente de obligaciones civiles segun el
articulo 1902 del Codigo, y que alcanzan, segun el 1903, netre otras perosnas, a los
Directores de establecimientos o empresas por los daños causados por sus dependientes
en determinadas condiciones, es manifesto que la de lo civil, al conocer del mismo hehco
baho este ultimo aspecto y al condenar a la compañia recurrente a la indemnizacion del
daño causado por uno de sus empleados, lejos de infringer los mencionados textos, en
relacion con el articulo 116 de la Ley de Enjuciamiento Criminal, se ha atenido estrictamente
a ellos, sin invadir atribuciones ajenas a su jurisdiccion propia, ni contrariar en lo mas
minimo el fallo recaido en la causa.

Considering that the first ground of the appeal is based on the mistaken supposition that the
trial court, in sentencing the Compañia Madrileña to the payment of the damage caused by
the death of Ramon Lafuente Izquierdo, disregards the value and juridical effects of the
sentence of acquittal rendered in the criminal case instituted on account of the same act,
when it is a fact that the two jurisdictions had taken cognizance of the same act in its
 different aspects, and as the criminal jurisdiction declared within the limits of its authority that
the act in question did not constitute a felony because there was no grave carelessness or
negligence, and this being the only basis of acquittal, it does no exclude the co-existence of
fault or negligence which is not qualified, and is a source of civil obligations according to
article 1902 of the Civil Code, affecting, in accordance with article 1903, among other
persons, the managers of establishments or enterprises by reason of the damages caused
by employees under certain conditions, it is manifest that the civil jurisdiccion in taking
cognizance of the same act in this latter aspect and in ordering the company, appellant
herein, to pay an indemnity for the damage caused by one of its employees, far from
violating said legal provisions, in relation with article 116 of the Law of Criminal
Procedure, strictly followed the same, without invading attributes which are beyond its own
jurisdiction, and without in any way contradicting the decision in that cause. (Emphasis
supplied.)

It will be noted, as to the case just cited:

First. That the conductor was not sued in a civil case, either separately or with the street car
company. This is precisely what happens in the present case: the driver, Fontanilla, has not been
sued in a civil action, either alone or with his employer.

Second. That the conductor had been acquitted of grave criminal negligence, but the Supreme
Tribunal of Spain said that this did not exclude the co-existence of fault or negligence, which is not
qualified, on the part of the conductor, under article 1902 of the Civil Code. In the present case, the
taxi driver was found guilty of criminal negligence, so that if he had even sued for his civil
responsibility arising from the crime, he would have been held primarily liable for civil damages, and
Barredo would have been held subsidiarily liable for the same. But the plaintiffs are directly suing
Barredo, on his primary responsibility because of his own presumed negligence — which he did not
overcome — under article 1903. Thus, there were two liabilities of Barredo: first, the subsidiary one
because of the civil liability of the taxi driver arising from the latter's criminal negligence; and,
second, Barredo's primary liability as an employer under article 1903. The plaintiffs were free to
choose which course to take, and they preferred the second remedy. In so doing, they were acting
within their rights. It might be observed in passing, that the plaintiff choose the more expeditious and
effective method of relief, because Fontanilla was either in prison, or had just been released, and
besides, he was probably without property which might be seized in enforcing any judgment against
him for damages.

Third. That inasmuch as in the above sentence of October 21, 1910, the employer was held liable
civilly, notwithstanding the acquittal of the employee (the conductor) in a previous criminal case, with
greater reason should Barredo, the employer in the case at bar, be held liable for damages in a civil
suit filed against him because his taxi driver had been convicted. The degree of negligence of the
conductor in the Spanish case cited was less than that of the taxi driver, Fontanilla, because the
former was acquitted in the previous criminal case while the latter was found guilty of criminal
negligence and was sentenced to an indeterminate sentence of one year and one day to two years
of prision correccional.

(See also Sentence of February 19, 1902, which is similar to the one above quoted.)

In the Sentence of the Supreme Court of Spain, dated February 14, 1919, an action was brought
against a railroad company for damages because the station agent, employed by the company, had
unjustly and fraudulently, refused to deliver certain articles consigned to the plaintiff. The Supreme
Court of Spain held that this action was properly under article 1902 of the Civil Code, the court
saying:
 Considerando que la sentencia discutida reconoce, en virtud de los hechos que consigna
con relacion a las pruebas del pleito: 1.º, que las expediciones facturadas por la compañia
ferroviaria a la consignacion del actor de las vasijas vacias que en su demanda relacionan
tenian como fin el que este las devolviera a sus remitentes con vinos y alcoholes; 2.º, que
llegadas a su destino tales mercanias no se quisieron entregar a dicho consignatario por el
jefe de la estacion sin motivo justificado y con intencion dolosa, y 3.º, que la falta de entrega
de estas expediciones al tiempo de reclamarlas el demandante le originaron daños y
perjuicios en cantidad de bastante importancia como expendedor al por mayor que era de
vinos y alcoholes por las ganancias que dejo de obtener al verse privado de servir los
pedidos que se le habian hecho por los remitentes en los envases:

Considerando que sobre esta base hay necesidad de estimar los cuatro motivos que
integran este recurso, porque la demanda inicial del pleito a que se contrae no contiene
accion que nazca del incumplimiento del contrato de transporte, toda vez que no se funda
en el retraso de la llegada de las mercancias ni de ningun otro vinculo contractual entre las
partes contendientes, careciendo, por tanto, de aplicacion el articulo 371 del Codigo de
Comercio, en que principalmente descansa el fallo recurrido, sino que se limita a pedir la
reparaction de los daños y perjuicios producidos en el patrimonio del actor por la
injustificada y dolosa negativa del porteador a la entrega de las mercancias a su nombre
consignadas, segun lo reconoce la sentencia, y cuya responsabilidad esta claramente
sancionada en el articulo 1902 del Codigo Civil, que obliga por el siguiente a la Compañia
demandada como ligada con el causante de aquellos por relaciones de caracter economico
y de jurarquia administrativa.

Considering that the sentence, in question recognizes, in virtue of the facts which it declares,
in relation to the evidence in the case: (1) that the invoice issued by the railroad company in
favor of the plaintiff contemplated that the empty receptacles referred to in the complaint
should be returned to the consignors with wines and liquors; (2) that when the said
merchandise reached their destination, their delivery to the consignee was refused by the
station agent without justification and with fraudulent intent, and (3) that the lack of delivery
of these goods when they were demanded by the plaintiff caused him losses and damages
of considerable importance, as he was a wholesale vendor of wines and liquors and he failed
to realize the profits when he was unable to fill the orders sent to him by the consignors of
the receptacles:

Considering that upon this basis there is need of upholding the four assignments of error, as
the original complaint did not contain any cause of action arising from non-fulfillment of a
contract of transportation, because the action was not based on the delay of the goods nor
on any contractual relation between the parties litigant and, therefore, article 371 of the Code
of Commerce, on which the decision appealed from is based, is not applicable; but it limits to
asking for reparation for losses and damages produced on the patrimony of the plaintiff on
account of the unjustified and fraudulent refusal of the carrier to deliver the goods consigned
to the plaintiff as stated by the sentence, and the carrier's responsibility is clearly laid down in
article 1902 of the Civil Code which binds, in virtue of the next article, the defendant
company, because the latter is connected with the person who caused the damage by
relations of economic character and by administrative hierarchy. (Emphasis supplied.)

The above case is pertinent because it shows that the same act may come under both the Penal
Code and the Civil Code. In that case, the action of the agent was unjustified and fraudulent and
therefore could have been the subject of a criminal action. And yet, it was held to be also a proper
subject of a civil action under article 1902 of the Civil Code. It is also to be noted that it was the
employer and not the employee who was being sued.
Let us now examine the cases previously decided by this Court.

In the leading case of Rakes vs. Atlantic Gulf and Pacific Co. (7 Phil., 359, 362-365 [year 1907]), the
trial court awarded damages to the plaintiff, a laborer of the defendant, because the latter had
negligently failed to repair a tramway in consequence of which the rails slid off while iron was being
transported, and caught the plaintiff whose leg was broken. This Court held:

It is contended by the defendant, as its first defense to the action that the necessary
conclusion from these collated laws is that the remedy for injuries through negligence lies
only in a criminal action in which the official criminally responsible must be made primarily
liable and his employer held only subsidiarily to him. According to this theory the plaintiff
should have procured the arrest of the representative of the company accountable for not
repairing the track, and on his prosecution a suitable fine should have been imposed,
payable primarily by him and secondarily by his employer.

This reasoning misconceived the plan of the Spanish codes upon this subject. Article 1093 of
the Civil Code makes obligations arising from faults or negligence not punished by the law,
subject to the provisions of Chapter II of Title XVI. Section 1902 of that chapter reads:

"A person who by an act or omission causes damage to another when there is fault
or negligence shall be obliged to repair the damage so done.

"SEC. 1903. The obligation imposed by the preceeding article is demandable, not
only for personal acts and omissions, but also for those of the persons for whom they
should be responsible.

"The father, and on his death or incapacity, the mother, is liable for the damages
caused by the minors who live with them.

xxx xxx xxx

"Owners or directors of an establishment or enterprise are equally liable for the

damages caused by their employees in the service of the branches in which the latter
may be employed or in the performance of their duties.

xxx xxx xxx

"The liability referred to in this article shall cease when the persons mentioned
therein prove that they employed all the diligence of a good father of a family to avoid
the damage."

As an answer to the argument urged in this particular action it may be sufficient to point out
that nowhere in our general statutes is the employer penalized for failure to provide or
maintain safe appliances for his workmen. His obligation therefore is one 'not punished by
the laws' and falls under civil rather than criminal jurisprudence. But the answer may be a
broader one. We should be reluctant, under any conditions, to adopt a forced construction of
these scientific codes, such as is proposed by the defendant, that would rob some of these
articles of effect, would shut out litigants against their will from the civil courts, would make
the assertion of their rights dependent upon the selection for prosecution of the proper
criminal offender, and render recovery doubtful by reason of the strict rules of proof
prevailing in criminal actions. Even if these articles had always stood alone, such a
 construction would be unnecessary, but clear light is thrown upon their meaning by the
provisions of the Law of Criminal Procedure of Spain (Ley de Enjuiciamiento Criminal),
which, though never in actual force in these Islands, was formerly given a suppletory or
explanatory effect. Under article 111 of this law, both classes of action, civil and criminal,
might be prosecuted jointly or separately, but while the penal action was pending the civil
was suspended. According to article 112, the penal action once started, the civil remedy
should be sought therewith, unless it had been waived by the party injured or been expressly
reserved by him for civil proceedings for the future. If the civil action alone was prosecuted,
arising out of a crime that could be enforced only on private complaint, the penal action
thereunder should be extinguished. These provisions are in harmony with those of articles 23
and 133 of our Penal Code on the same subject.

An examination of this topic might be carried much further, but the citation of these articles
suffices to show that the civil liability was not intended to be merged in the criminal nor even
to be suspended thereby, except as expressly provided in the law. Where an individual is
civilly liable for a negligent act or omission, it is not required that the injured party should
seek out a third person criminally liable whose prosecution must be a condition precedent to
the enforcement of the civil right.

Under article 20 of the Penal Code the responsibility of an employer may be regarded as
subsidiary in respect of criminal actions against his employees only while they are in process
of prosecution, or in so far as they determine the existence of the criminal act from which
liability arises, and his obligation under the civil law and its enforcement in the civil courts is
not barred thereby unless by the election of the injured person. Inasmuch as no criminal
proceeding had been instituted, growing our of the accident in question, the provisions of the
Penal Code can not affect this action. This construction renders it unnecessary to finally
determine here whether this subsidiary civil liability in penal actions has survived the laws
that fully regulated it or has been abrogated by the American civil and criminal procedure
now in force in the Philippines.

The difficulty in construing the articles of the code above cited in this case appears from the
briefs before us to have arisen from the interpretation of the words of article 1093, "fault or
negligence not punished by law," as applied to the comprehensive definition of offenses in
articles 568 and 590 of the Penal Code. It has been shown that the liability of an employer
arising out of his relation to his employee who is the offender is not to be regarded as
derived from negligence punished by the law, within the meaning of articles 1902 and 1093.
More than this, however, it cannot be said to fall within the class of acts unpunished by the
law, the consequence of which are regulated by articles 1902 and 1903 of the Civil Code.
The acts to which these articles are applicable are understood to be those not growing out of
pre-existing duties of the parties to one another. But where relations already formed give rise
to duties, whether springing from contract or quasi contract, then breaches of those duties
are subject to articles 1101, 1103, and 1104 of the same code. A typical application of this
distinction may be found in the consequences of a railway accident due to defective
machinery supplied by the employer. His liability to his employee would arise out of the
contract of employment, that to the passengers out of the contract for passage, while that to
the injured bystander would originate in the negligent act itself.

In Manzanares vs. Moreta, 38 Phil., 821 (year 1918), the mother of the 8 of 9-year-old child Salvador
Bona brought a civil action against Moreta to recover damages resulting from the death of the child,
who had been run over by an automobile driven and managed by the defendant. The trial court
rendered judgment requiring the defendant to pay the plaintiff the sum of P1,000 as indemnity: This
Court in affirming the judgment, said in part:
 If it were true that the defendant, in coming from the southern part of Solana Street, had to
stop his auto before crossing Real Street, because he had met vehicles which were going
along the latter street or were coming from the opposite direction along Solana Street, it is to
be believed that, when he again started to run his auto across said Real Street and to
continue its way along Solana Street northward, he should have adjusted the speed of the
auto which he was operating until he had fully crossed Real Street and had completely
reached a clear way on Solana Street. But, as the child was run over by the auto precisely at
the entrance of Solana Street, this accident could not have occurred if the auto had been
running at a slow speed, aside from the fact that the defendant, at the moment of crossing
Real Street and entering Solana Street, in a northward direction, could have seen the child in
the act of crossing the latter street from the sidewalk on the right to that on the left, and if the
accident had occurred in such a way that after the automobile had run over the body of the
child, and the child's body had already been stretched out on the ground, the automobile still
moved along a distance of about 2 meters, this circumstance shows the fact that the
automobile entered Solana Street from Real Street, at a high speed without the defendant
having blown the horn. If these precautions had been taken by the defendant, the deplorable
accident which caused the death of the child would not have occurred.

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

Years later (in 1930) this Court had another occasion to apply the same doctrine. In Bernal and
Enverso vs. House and Tacloban Electric & Ice Plant, Ltd., 54 Phil., 327, the parents of the five-year-
old child, Purificacion Bernal, brought a civil action to recover damages for the child's death as a
result of burns caused by the fault and negligence of the defendants. On the evening of April 10,
1925, the Good Friday procession was held in Tacloban, Leyte. Fortunata Enverso with her daughter
Purificacion Bernal had come from another municipality to attend the same. After the procession the
mother and the daughter with two others were passing along Gran Capitan Street in front of the
offices of the Tacloban Electric & Ice Plant, Ltd., owned by defendants J. V. House, when an
automobile appeared from the opposite direction. The little girl, who was slightly ahead of the rest,
was so frightened by the automobile that she turned to run, but unfortunately she fell into the street
gutter where hot water from the electric plant was flowing. The child died that same night from the
burns. The trial courts dismissed the action because of the contributory negligence of the plaintiffs.
But this Court held, on appeal, that there was no contributory negligence, and allowed the parents
P1,000 in damages from J. V. House who at the time of the tragic occurrence was the holder of the
franchise for the electric plant. This Court said in part:

Although the trial judge made the findings of fact hereinbefore outlined, he nevertheless was
led to order the dismissal of the action because of the contributory negligence of the
plaintiffs. It is from this point that a majority of the court depart from the stand taken by the
trial judge. The mother and her child had a perfect right to be on the principal street of
Tacloban, Leyte, on the evening when the religious procession was held. There was nothing
abnormal in allowing the child to run along a few paces in advance of the mother. No one
could foresee the coincidence of an automobile appearing and of a frightened child running
and falling into a ditch filled with hot water. The doctrine announced in the much debated
case of Rakes vs. Atlantic Gulf and Pacific Co. ([1907]), 7 Phil., 359), still rule. Article 1902 of
 the Civil Code must again be enforced. The contributory negligence of the child and her
mother, if any, does not operate as a bar to recovery, but in its strictest sense could only
result in reduction of the damages.

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

In Bahia vs. Litonjua and Leynes (30 Phil., 624 [year 1915), the action was for damages for the
death of the plaintiff's daughter alleged to have been caused by the negligence of the servant in
driving an automobile over the child. It appeared that the cause of the mishap was a defect in the
steering gear. The defendant Leynes had rented the automobile from the International Garage of
Manila, to be used by him in carrying passengers during the fiesta of Tuy, Batangas. Leynes was
ordered by the lower court to pay P1,000 as damages to the plaintiff. On appeal this Court reversed
the judgment as to Leynes on the ground that he had shown that the exercised the care of a good
father of a family, thus overcoming the presumption of negligence under article 1903. This Court
said:

As to selection, the defendant has clearly shown that he exercised the care and diligence of
a good father of a family. He obtained the machine from a reputable garage and it was, so
far as appeared, in good condition. The workmen were likewise selected from a standard
garage, were duly licensed by the Government in their particular calling, and apparently
thoroughly competent. The machine had been used but a few hours when the accident
occurred and it is clear from the evidence that the defendant had no notice, either actual or
constructive, of the defective condition of the steering gear.

The legal aspect of the case was discussed by this Court thus:

Article 1903 of the Civil Code not only establishes liability in cases of negligence, but also
provides when the liability shall cease. It says:

"The liability referred to in this article shall cease when the persons mentioned
therein prove that they employed all the diligence of a good father of a family to avoid
the damage."

From this article two things are apparent: (1) That when an injury is caused by the
negligence of a servant or employee there instantly arises a presumption of law that there
was negligence on the part of the matter or employer either in the selection of the servant or
employee, or in supervision over him after the selection, or both; and (2) that presumption
is juris tantum and not juris et de jure, and consequently, may be rebutted. It follows
necessarily that if the employer shows to the satisfaction of the court that in selection and
supervision he has exercised the care and diligence of a good father of a family, the
presumption is overcome and he is relieve from liability.

This theory bases the responsibility of the master ultimately on his own negligence and not
on that of his servant.

The doctrine of the case just cited was followed by this Court in Cerf vs. Medel (33 Phil., 37 [year
1915]). In the latter case, the complaint alleged that the defendant's servant had so negligently
driven an automobile, which was operated by defendant as a public vehicle, that said automobile
struck and damaged the plaintiff's motorcycle. This Court, applying article 1903 and following the
rule in Bahia vs. Litonjua and Leynes, said in part (p. 41) that:

The master is liable for the negligent acts of his servant where he is the owner or director of
a business or enterprise and the negligent acts are committed while the servant is engaged
in his master's employment as such owner.

Another case which followed the decision in Bahia vs. Litonjua and Leynes was Cuison vs. Norton &
Harrison Co., 55 Phil., 18 (year 1930). The latter case was an action for damages brought by Cuison
for the death of his seven-year-old son Moises. The little boy was on his way to school with his sister
Marciana. Some large pieces of lumber fell from a truck and pinned the boy underneath, instantly
killing him. Two youths, Telesforo Binoya and Francisco Bautista, who were working for Ora, an
employee of defendant Norton & Harrison Co., pleaded guilty to the crime of homicide through
reckless negligence and were sentenced accordingly. This Court, applying articles 1902 and 1903,
held:

The basis of civil law liability is not respondent superior but the relationship of pater familias.
This theory bases the liability of the master ultimately on his own negligence and not on that
of his servant. (Bahia vs.Litonjua and Leynes [1915], 30 Phil., 624; Cangco vs. Manila
Railroad Co. [1918], 38 Phil., 768.)

In Walter A. Smith & Co. vs. Cadwallader Gibson Lumber Co., 55 Phil., 517 (year 1930) the plaintiff
brought an action for damages for the demolition of its wharf, which had been struck by the steamer
Helen C belonging to the defendant. This Court held (p. 526):

The evidence shows that Captain Lasa at the time the plaintiff's wharf collapsed was a duly
licensed captain, authorized to navigate and direct a vessel of any tonnage, and that the
appellee contracted his services because of his reputation as a captain, according to F. C.
Cadwallader. This being so, we are of the opinion that the presumption of liability against the
defendant has been overcome by the exercise of the care and diligence of a good father of a
family in selecting Captain Lasa, in accordance with the doctrines laid down by this court in
the cases cited above, and the defendant is therefore absolved from all liability.

It is, therefore, seen that the defendant's theory about his secondary liability is negatived by the six
cases above set forth. He is, on the authority of these cases, primarily and directly responsible in
damages under article 1903, in relation to article 1902, of the Civil Code.

Let us now take up the Philippine decisions relied upon by the defendant. We study first, City of
Manila vs. Manila Electric Co., 52 Phil., 586 (year 1928). A collision between a truck of the City of
Manila and a street car of the Manila Electric Co. took place on June 8, 1925. The truck was
damaged in the amount of P1,788.27. Sixto Eustaquio, the motorman, was prosecuted for the crime
of damage to property and slight injuries through reckless imprudence. He was found guilty and
sentenced to pay a fine of P900, to indemnify the City of Manila for P1,788.27, with subsidiary
imprisonment in case of insolvency. Unable to collect the indemnity from Eustaquio, the City of
Manila filed an action against the Manila Electric Company to obtain payment, claiming that the
defendant was subsidiarily liable. The main defense was that the defendant had exercised the
diligence of a good father of a family to prevent the damage. The lower court rendered judgment in
favor of the plaintiff. This Court held, in part, that this case was governed by the Penal Code, saying:

With this preliminary point out of the way, there is no escaping the conclusion that the
provisions of the Penal Code govern. The Penal Code in easily understandable language
authorizes the determination of subsidiary liability. The Civil Code negatives its application by
 providing that civil obligations arising from crimes or misdemeanors shall be governed by the
provisions of the Penal Code. The conviction of the motorman was a misdemeanor falling
under article 604 of the Penal Code. The act of the motorman was not a wrongful or
negligent act or omission not punishable by law. Accordingly, the civil obligation connected
up with the Penal Code and not with article 1903 of the Civil Code. In other words, the Penal
Code affirms its jurisdiction while the Civil Code negatives its jurisdiction. This is a case of
criminal negligence out of which civil liability arises and not a case of civil negligence.

xxx xxx xxx

Our deduction, therefore, is that the case relates to the Penal Code and not to the Civil
Code. Indeed, as pointed out by the trial judge, any different ruling would permit the master
to escape scot-free by simply alleging and proving that the master had exercised all diligence
in the selection and training of its servants to prevent the damage. That would be a good
defense to a strictly civil action, but might or might not be to a civil action either as a part of
or predicated on conviction for a crime or misdemeanor. (By way of parenthesis, it may be
said further that the statements here made are offered to meet the argument advanced
during our deliberations to the effect that article 0902 of the Civil Code should be disregarded
and codal articles 1093 and 1903 applied.)

It is not clear how the above case could support the defendant's proposition, because the Court of
Appeals based its decision in the present case on the defendant's primary responsibility under article
1903 of the Civil Code and not on his subsidiary liability arising from Fontanilla's criminal negligence.
In other words, the case of City of Manila vs. Manila Electric Co., supra, is predicated on an entirely
different theory, which is the subsidiary liability of an employer arising from a criminal act of his
employee, whereas the foundation of the decision of the Court of Appeals in the present case is the
employer's primary liability under article 1903 of the Civil Code. We have already seen that this is a
proper and independent remedy.

Arambulo vs. Manila Electric Co. (55 Phil., 75), is another case invoked by the defendant. A
motorman in the employ of the Manila Electric Company had been convicted o homicide by simple
negligence and sentenced, among other things, to pay the heirs of the deceased the sum of P1,000.
An action was then brought to enforce the subsidiary liability of the defendant as employer under the
Penal Code. The defendant attempted to show that it had exercised the diligence of a good father of
a family in selecting the motorman, and therefore claimed exemption from civil liability. But this Court
held:

In view of the foregoing considerations, we are of opinion and so hold, (1) that the exemption
from civil liability established in article 1903 of the Civil Code for all who have acted with the
diligence of a good father of a family, is not applicable to the subsidiary civil liability provided
in article 20 of the Penal Code.

The above case is also extraneous to the theory of the defendant in the instant case, because the
action there had for its purpose the enforcement of the defendant's subsidiary liability under the
Penal Code, while in the case at bar, the plaintiff's cause of action is based on the defendant's
primary and direct responsibility under article 1903 of the Civil Code. In fact, the above case
destroys the defendant's contention because that decision illustrates the principle that the
employer's primary responsibility under article 1903 of the Civil Code is different in character from
his subsidiary liability under the Penal Code.

In trying to apply the two cases just referred to, counsel for the defendant has failed to recognize the
distinction between civil liability arising from a crime, which is governed by the Penal Code, and the
responsibility for cuasi-delito or culpa aquiliana under the Civil Code, and has likewise failed to give
the importance to the latter type of civil action.

The defendant-petitioner also cites Francisco vs. Onrubia (46 Phil., 327). That case need not be set
forth. Suffice it to say that the question involved was also civil liability arising from a crime. Hence, it
is as inapplicable as the two cases above discussed.

The foregoing authorities clearly demonstrate the separate individuality of cuasi-delitos or culpa
aquiliana under the Civil Code. Specifically they show that there is a distinction between civil liability
arising from criminal negligence (governed by the Penal Code) and responsibility for fault or
negligence under articles 1902 to 1910 of the Civil Code, and that the same negligent act may
produce either a civil liability arising from a crime under the Penal Code, or a separate responsibility
for fault or negligence under articles 1902 to 1910 of the Civil Code. Still more concretely, the
authorities above cited render it inescapable to conclude that the employer — in this case the
defendant-petitioner — is primarily and directly liable under article 1903 of the Civil Code.

The legal provisions, authors, and cases already invoked should ordinarily be sufficient to dispose of
this case. But inasmuch as we are announcing doctrines that have been little understood in the past,
it might not be inappropriate to indicate their foundations.

Firstly, the Revised Penal Code in article 365 punishes not only reckless but also simple negligence.
If we were to hold that articles 1902 to 1910 of the Civil Code refer only to fault or negligence not
punished by law, according to the literal import of article 1093 of the Civil Code, the legal institution
of culpa aquiliana would have very little scope and application in actual life. Death or injury to
persons and damage to property through any degree of negligence — even the slightest — would
have to be indemnified only through the principle of civil liability arising from a crime. In such a state
of affairs, what sphere would remain for cuasi-delito or culpa aquiliana? We are loath to impute to
the lawmaker any intention to bring about a situation so absurd and anomalous. Nor are we, in the
interpretation of the laws, disposed to uphold the letter that killeth rather than the spirit that giveth
life. We will not use the literal meaning of the law to smother and render almost lifeless a principle of
such ancient origin and such full-grown development as culpa aquiliana or cuasi-delito, which is
conserved and made enduring in articles 1902 to 1910 of the Spanish Civil Code.

Secondly, to find the accused guilty in a criminal case, proof of guilt beyond reasonable doubt is
required, while in a civil case, preponderance of evidence is sufficient to make the defendant pay in
damages. There are numerous cases of criminal negligence which can not be shown beyond
reasonable doubt, but can be proved by a preponderance of evidence. In such cases, the defendant
can and should be made responsible in a civil action under articles 1902 to 1910 of the Civil Code.
Otherwise, there would be many instances of unvindicated civil wrongs. Ubi jus ibi remedium.

Thirdly, to hold that there is only one way to make defendant's liability effective, and that is, to sue
the driver and exhaust his (the latter's) property first, would be tantamount to compelling the plaintiff
to follow a devious and cumbersome method of obtaining relief. True, there is such a remedy under
our laws, but there is also a more expeditious way, which is based on the primary and direct
responsibility of the defendant under article 1903 of the Civil Code. Our view of the law is more likely
to facilitate remedy for civil wrongs, because the procedure indicated by the defendant is wasteful
and productive of delay, it being a matter of common knowledge that professional drivers of taxis
and similar public conveyance usually do not have sufficient means with which to pay damages.
Why, then, should the plaintiff be required in all cases to go through this roundabout, unnecessary,
and probably useless procedure? In construing the laws, courts have endeavored to shorten and
facilitate the pathways of right and justice.
At this juncture, it should be said that the primary and direct responsibility of employers and their
presumed negligence are principles calculated to protect society. Workmen and employees should
be carefully chosen and supervised in order to avoid injury to the public. It is the masters or
employers who principally reap the profits resulting from the services of these servants and
employees. It is but right that they should guarantee the latter's careful conduct for the personnel
and patrimonial safety of others. As Theilhard has said, "they should reproach themselves, at least,
some for their weakness, others for their poor selection and all for their negligence." And according
to Manresa, "It is much more equitable and just that such responsibility should fall upon the principal
or director who could have chosen a careful and prudent employee, and not upon the injured person
who could not exercise such selection and who used such employee because of his confidence in
the principal or director." (Vol. 12, p. 622, 2nd Ed.) Many jurists also base this primary responsibility
of the employer on the principle of representation of the principal by the agent. Thus, Oyuelos says
in the work already cited (Vol. 7, p. 747) that before third persons the employer and employee
"vienen a ser como una sola personalidad, por refundicion de la del dependiente en la de quien le
emplea y utiliza." ("become as one personality by the merging of the person of the employee in that
of him who employs and utilizes him.") All these observations acquire a peculiar force and
significance when it comes to motor accidents, and there is need of stressing and accentuating the
responsibility of owners of motor vehicles.

Fourthly, because of the broad sweep of the provisions of both the Penal Code and the Civil Code
on this subject, which has given rise to the overlapping or concurrence of spheres already
discussed, and for lack of understanding of the character and efficacy of the action for culpa
aquiliana, there has grown up a common practice to seek damages only by virtue of the civil
responsibility arising from a crime, forgetting that there is another remedy, which is by invoking
articles 1902-1910 of the Civil Code. Although this habitual method is allowed by our laws, it has
nevertheless rendered practically useless and nugatory the more expeditious and effective remedy
based on culpa aquiliana or culpa extra-contractual. In the present case, we are asked to help
perpetuate this usual course. But we believe it is high time we pointed out to the harm done by such
practice and to restore the principle of responsibility for fault or negligence under articles 1902 et
seq. of the Civil Code to its full rigor. It is high time we caused the stream of quasi-delict or culpa
aquiliana to flow on its own natural channel, so that its waters may no longer be diverted into that of
a crime under the Penal Code. This will, it is believed, make for the better safeguarding of private
rights because it re-establishes an ancient and additional remedy, and for the further reason that an
independent civil action, not depending on the issues, limitations and results of a criminal
prosecution, and entirely directed by the party wronged or his counsel, is more likely to secure
adequate and efficacious redress.

In view of the foregoing, the judgment of the Court of Appeals should be and is hereby affirmed, with
costs against the defendant-petitioner.

Yulo, C.J., Moran, Ozaeta and Paras, JJ., concur.

G.R. No. L-41423 February 23, 1989

LUIS JOSEPH, petitioner

vs.
HON. CRISPIN V. BAUTISTA, PATROCINIO PEREZ, ANTONIO SIOSON, JACINTO
PAGARIGAN, ALBERTO CARDENO and LAZARO VILLANUEVA, respondents.

Jose M. Castillo for petitioner.

Arturo Z. Sioson for private respondent, Patrocinio Perez.

Cipriano B. Farrales for private respondents except P. Perez.

REGALAD0, J.:

Petitioner prays in this appeal by certiorari for the annulment and setting aside of the order, dated
July 8, 1975, dismissing petitioner's complaint, as well as the order, dated August 22, 1975, denying
his motion for reconsideration of said dismissal, both issued by respondent Judge Crispin V. Bautista
of the former Court of First Instance of Bulacan, Branch III.

Petitioner herein is the plaintiff in Civil Case No. 50-V-73 entitled "Luis Joseph vs. Patrocinio Perez,
Domingo Villa y de Jesus, Rosario Vargas, Antonio Sioson, Lazaro Villanueva and Jacinto
Pagarigan", filed before the Court of First Instance of Bulacan, Branch III, and presided over by
respondent Judge Crispin V. Bautista; while private respondents Patrocinio Perez, Antonio Sioson,
Jacinto Pagarigan and Lazaro Villanueva are four of the defendants in said case. Defendant
Domingo Villa y de Jesus did not answer either the original or the amended complaint, while
defendant Rosario Vargas could not be served with summons; and respondent Alberto Cardeno is
included herein as he was impleaded by defendant Patrocinio Perez, one of respondents herein, in
her cross-claim.

The generative facts of this case, as culled from the written submission of the parties, are as follows:

Respondent Patrocinio Perez is the owner of a cargo truck with Plate No. 25-2 YT Phil. '73 for
conveying cargoes and passengers for a consideration from Dagupan City to Manila. On January
12, 1973, said cargo truck driven by defendant Domingo Villa was on its way to Valenzuela, Bulacan
from Pangasinan. Petitioner, with a cargo of livestock, boarded the cargo truck at Dagupan City after
paying the sum of P 9.00 as one way fare to Valenzuela, Bulacan. While said cargo truck was
negotiating the National Highway proceeding towards Manila, defendant Domingo Villa tried to
overtake a tricycle likewise proceeding in the same direction. At about the same time, a pick-up truck
with Plate No. 45-95 B, supposedly owned by respondents Antonio Sioson and Jacinto Pagarigan,
then driven by respondent Lazaro Villanueva, tried to overtake the cargo truck which was then in the
process of overtaking the tricycle, thereby forcing the cargo truck to veer towards the shoulder of the
road and to ram a mango tree. As a result, petitioner sustained a bone fracture in one of his legs. 1

The following proceedings thereafter took place: 2

Petitioner filed a complaint for damages against respondent Patrocinio Perez, as owner of the cargo
truck, based on a breach of contract of carriage and against respondents Antonio Sioson and Lazaro
Villanueva, as owner and driver, respectively, of the pick-up truck, based on quasi-delict.

Respondent Sioson filed his answer alleging that he is not and never was an owner of the pick-up
truck and neither would he acquire ownership thereof in the future.

On September 24, 1973, petitioner, with prior leave of court, filed his amended complaint impleading
respondents Jacinto Pagarigan and a certain Rosario Vargas as additional alternative defendants.
Petitioner apparently could not ascertain who the real owner of said cargo truck was, whether
respondents Patrocinio Perez or Rosario Vargas, and who was the real owner of said pick-up truck,
whether respondents Antonio Sioson or Jacinto Pagarigan.
Respondent Perez filed her amended answer with crossclaim against her co-defendants for
indemnity and subrogation in the event she is ordered to pay petitioner's claim, and therein
impleaded cross-defendant Alberto Cardeno as additional alternative defendant.

On September 27, 1974, respondents Lazaro Villanueva, Alberto Cardeno, Antonio Sioson and
Jacinto Pagarigan, thru their insurer, Insurance Corporation of the Philippines, paid petitioner's claim
for injuries sustained in the amount of P 1,300.00. By reason thereof, petitioner executed a release
of claim releasing from liability the following parties, viz: Insurance Corporation of the Philippines,
Alberto Cardeno, Lazaro Villanueva, Antonio Sioson and Jacinto Pagarigan.

On December 2, 1974, respondents Lazaro Villanueva, Alberto Cardeno and their insurer, the
Insurance Corporation of the Philippines, paid respondent Patrocinio Perez' claim for damages to
her cargo truck in the amount of P 7,420.61.

Consequently, respondents Sioson, Pagarigan, Cardeno and Villanueva filed a "Motion to Exonerate
and Exclude Defs/ Cross defs. Alberto Cardeno, Lazaro Villanueva, Antonio Sioson and Jacinto
Pagarigan on the Instant Case", alleging that respondents Cardeno and Villanueva already paid P
7,420.61 by way of damages to respondent Perez, and alleging further that respondents Cardeno,
Villanueva, Sioson and Pagarigan paid P 1,300.00 to petitioner by way of amicable settlement.

Thereafter, respondent Perez filed her "Opposition to Cross-defs.' motion dated Dec. 2, 1974 and
Counter Motion" to dismiss. The so-called counter motion to dismiss was premised on the fact that
the release of claim executed by petitioner in favor of the other respondents inured to the benefit of
respondent Perez, considering that all the respondents are solidarity liable to herein petitioner.

On July 8, 1975, respondent judge issued the questioned order dismissing the case, and a motion
for the reconsideration thereof was denied. Hence, this appeal, petitioner contending that
respondent judge erred in declaring that the release of claim executed by petitioner in favor of
respondents Sioson, Villanueva and Pagarigan inured to the benefit of respondent Perez; ergo, it
likewise erred in dismissing the case.

We find the present recourse devoid of merit.

The argument that there are two causes of action embodied in petitioner's complaint, hence the
judgment on the compromise agreement under the cause of action based on quasi-delict is not a bar
to the cause of action for breach of contract of carriage, is untenable.

A cause of action is understood to be the delict or wrongful act or omission committed by the
defendant in violation of the primary rights of the plaintiff. 3 It is true that a single act or omission can
be violative of various rights at the same time, as when the act constitutes juridically a violation of
several separate and distinct legal obligations. However where there is only one delict or wrong,
there is but a single cause of action regardless of the number of rights that may have been violated
belonging to one person. 4

The singleness of a cause of action lies in the singleness of the- delict or wrong violating the rights of
one person. Nevertheless, if only one injury resulted from several wrongful acts, only one cause of
action arises. 5 In the case at bar, there is no question that the petitioner sustained a single injury on
his person. That vested in him a single cause of action, albeit with the correlative rights of action
against the different respondents through the appropriate remedies allowed by law.

The trial court was, therefore, correct in holding that there was only one cause of action involved
although the bases of recovery invoked by petitioner against the defendants therein were not
necessarily Identical since the respondents were not identically circumstanced. However, a recovery
by the petitioner under one remedy necessarily bars recovery under the other. This, in essence, is
the rationale for the proscription in our law against double recovery for the same act or omission
which, obviously, stems from the fundamental rule against unjust enrichment.

There is no question that the respondents herein are solidarily liable to petitioner. On the evidence
presented in the court below, the trial court found them to be so liable. It is undisputed that petitioner,
in his amended complaint, prayed that the trial court hold respondents jointly and severally liable.
Furthermore, the allegations in the amended complaint clearly impleaded respondents as solidary
debtors. We cannot accept the vacuous contention of petitioner that said allegations are intended to
apply only in the event that execution be issued in his favor. There is nothing in law or jurisprudence
which would countenance such a procedure.

The respondents having been found to be solidarity liable to petitioner, the full payment made by
some of the solidary debtors and their subsequent release from any and all liability to petitioner
inevitably resulted in the extinguishment and release from liability of the other solidary debtors,
including herein respondent Patrocinio Perez.

The claim that there was an agreement entered into between the parties during the pre-trial
conference that, after such payment made by the other respondents, the case shall proceed as
against respondent Perez is both incredible and unsubstantiated. There is nothing in the records to
show, either by way of a pre-trial order, minutes or a transcript of the notes of the alleged pre-trial
hearing, that there was indeed such as agreement.

WHEREFORE, the challenged orders of the respondent judge are hereby AFFIRMED.

SO ORDERED.

B.2. CULPA CONTRACTUAL

G.R. No. 34840 September 23, 1931

NARCISO GUTIERREZ, plaintiff-appellee,

vs.
BONIFACIO GUTIERREZ, MARIA V. DE GUTIERREZ, MANUEL GUTIERREZ, ABELARDO
VELASCO, and SATURNINO CORTEZ, defendants-appellants.

L.D. Lockwood for appellants Velasco and Cortez.

San Agustin and Roxas for other appellants.
Ramon Diokno for appellee.

MALCOLM, J.:

This is an action brought by the plaintiff in the Court of First Instance of Manila against the five
defendants, to recover damages in the amount of P10,000, for physical injuries suffered as a result
of an automobile accident. On judgment being rendered as prayed for by the plaintiff, both sets of
defendants appealed.

On February 2, 1930, a passenger truck and an automobile of private ownership collided while
attempting to pass each other on the Talon bridge on the Manila South Road in the municipality of
Las Piñas, Province of Rizal. The truck was driven by the chauffeur Abelardo Velasco, and was
owned by Saturnino Cortez. The automobile was being operated by Bonifacio Gutierrez, a lad 18
years of age, and was owned by Bonifacio's father and mother, Mr. and Mrs. Manuel Gutierrez. At
the time of the collision, the father was not in the car, but the mother, together will several other
members of the Gutierrez family, seven in all, were accommodated therein. A passenger in the
autobus, by the name of Narciso Gutierrez, was en route from San Pablo, Laguna, to Manila. The
collision between the bus and the automobile resulted in Narciso Gutierrez suffering a fracture right
leg which required medical attendance for a considerable period of time, and which even at the date
of the trial appears not to have healed properly.

It is conceded that the collision was caused by negligence pure and simple. The difference between
the parties is that, while the plaintiff blames both sets of defendants, the owner of the passenger
truck blames the automobile, and the owner of the automobile, in turn, blames the truck. We have
given close attention to these highly debatable points, and having done so, a majority of the court
are of the opinion that the findings of the trial judge on all controversial questions of fact find
sufficient support in the record, and so should be maintained. With this general statement set down,
we turn to consider the respective legal obligations of the defendants.

In amplification of so much of the above pronouncement as concerns the Gutierrez family, it may be
explained that the youth Bonifacio was in incompetent chauffeur, that he was driving at an excessive
rate of speed, and that, on approaching the bridge and the truck, he lost his head and so contributed
by his negligence to the accident. The guaranty given by the father at the time the son was granted a
license to operate motor vehicles made the father responsible for the acts of his son. Based on
these facts, pursuant to the provisions of article 1903 of the Civil Code, the father alone and not the
minor or the mother, would be liable for the damages caused by the minor.

We are dealing with the civil law liability of parties for obligations which arise from fault or
negligence. At the same time, we believe that, as has been done in other cases, we can take
cognizance of the common law rule on the same subject. In the United States, it is uniformly held
that the head of a house, the owner of an automobile, who maintains it for the general use of his
family is liable for its negligent operation by one of his children, whom he designates or permits to
run it, where the car is occupied and being used at the time of the injury for the pleasure of other
members of the owner's family than the child driving it. The theory of the law is that the running of
the machine by a child to carry other members of the family is within the scope of the owner's
business, so that he is liable for the negligence of the child because of the relationship of master and
servant. (Huddy On Automobiles, 6th ed., sec. 660; Missell vs. Hayes [1914], 91 Atl., 322.) The
liability of Saturnino Cortez, the owner of the truck, and of his chauffeur Abelardo Velasco rests on a
different basis, namely, that of contract which, we think, has been sufficiently demonstrated by the
allegations of the complaint, not controverted, and the evidence. The reason for this conclusion
reaches to the findings of the trial court concerning the position of the truck on the bridge, the speed
in operating the machine, and the lack of care employed by the chauffeur. While these facts are not
as clearly evidenced as are those which convict the other defendant, we nevertheless hesitate to
disregard the points emphasized by the trial judge. In its broader aspects, the case is one of two
drivers approaching a narrow bridge from opposite directions, with neither being willing to slow up
and give the right of way to the other, with the inevitable result of a collision and an accident.

The defendants Velasco and Cortez further contend that there existed contributory negligence on
the part of the plaintiff, consisting principally of his keeping his foot outside the truck, which
occasioned his injury. In this connection, it is sufficient to state that, aside from the fact that the
defense of contributory negligence was not pleaded, the evidence bearing out this theory of the case
is contradictory in the extreme and leads us far afield into speculative matters.
The last subject for consideration relates to the amount of the award. The appellee suggests that the
amount could justly be raised to P16,517, but naturally is not serious in asking for this sum, since no
appeal was taken by him from the judgment. The other parties unite in challenging the award of
P10,000, as excessive. All facts considered, including actual expenditures and damages for the
injury to the leg of the plaintiff, which may cause him permanent lameness, in connection with other
adjudications of this court, lead us to conclude that a total sum for the plaintiff of P5,000 would be
fair and reasonable. The difficulty in approximating the damages by monetary compensation is well
elucidated by the divergence of opinion among the members of the court, three of whom have
inclined to the view that P3,000 would be amply sufficient, while a fourth member has argued that
P7,500 would be none too much.

In consonance with the foregoing rulings, the judgment appealed from will be modified, and the
plaintiff will have judgment in his favor against the defendants Manuel Gutierrez, Abelardo Velasco,
and Saturnino Cortez, jointly and severally, for the sum of P5,000, and the costs of both instances.

G.R. No. L-21438 September 28, 1966

AIR FRANCE, petitioner,

vs.
RAFAEL CARRASCOSO and the HONORABLE COURT OF APPEALS, respondents.

Lichauco, Picazo and Agcaoili for petitioner.

Bengzon Villegas and Zarraga for respondent R. Carrascoso.

SANCHEZ, J.:

The Court of First Instance of Manila 1 sentenced petitioner to pay respondent Rafael Carrascoso
P25,000.00 by way of moral damages; P10,000.00 as exemplary damages; P393.20 representing
the difference in fare between first class and tourist class for the portion of the trip Bangkok-Rome,
these various amounts with interest at the legal rate, from the date of the filing of the complaint until
paid; plus P3,000.00 for attorneys' fees; and the costs of suit.

On appeal,2 the Court of Appeals slightly reduced the amount of refund on Carrascoso's plane ticket
from P393.20 to P383.10, and voted to affirm the appealed decision "in all other respects", with costs
against petitioner.

The case is now before us for review on certiorari.

The facts declared by the Court of Appeals as " fully supported by the evidence of record", are:

Plaintiff, a civil engineer, was a member of a group of 48 Filipino pilgrims that left Manila for
Lourdes on March 30, 1958.

On March 28, 1958, the defendant, Air France, through its authorized agent, Philippine Air
Lines, Inc., issued to plaintiff a "first class" round trip airplane ticket from Manila to Rome.
From Manila to Bangkok, plaintiff travelled in "first class", but at Bangkok, the Manager of the
defendant airline forced plaintiff to vacate the "first class" seat that he was occupying
because, in the words of the witness Ernesto G. Cuento, there was a "white man", who, the
 Manager alleged, had a "better right" to the seat. When asked to vacate his "first class" seat,
the plaintiff, as was to be expected, refused, and told defendant's Manager that his seat
would be taken over his dead body; a commotion ensued, and, according to said Ernesto G.
Cuento, "many of the Filipino passengers got nervous in the tourist class; when they found
out that Mr. Carrascoso was having a hot discussion with the white man [manager], they
came all across to Mr. Carrascoso and pacified Mr. Carrascoso to give his seat to the white
man" (Transcript, p. 12, Hearing of May 26, 1959); and plaintiff reluctantly gave his "first
class" seat in the plane.3

1. The trust of the relief petitioner now seeks is that we review "all the findings" 4 of respondent Court
of Appeals. Petitioner charges that respondent court failed to make complete findings of fact on all
the issues properly laid before it. We are asked to consider facts favorable to petitioner, and then, to
overturn the appellate court's decision.

Coming into focus is the constitutional mandate that "No decision shall be rendered by any court of
record without expressing therein clearly and distinctly the facts and the law on which it is
based". 5 This is echoed in the statutory demand that a judgment determining the merits of the case
shall state "clearly and distinctly the facts and the law on which it is based"; 6 and that "Every
decision of the Court of Appeals shall contain complete findings of fact on all issues properly raised
before it". 7

A decision with absolutely nothing to support it is a nullity. It is open to direct attack. 8 The law,
however, solely insists that a decision state the "essential ultimate facts" upon which the court's
conclusion is drawn. 9 A court of justice is not hidebound to write in its decision every bit and piece of
evidence 10 presented by one party and the other upon the issues raised. Neither is it to be burdened
with the obligation "to specify in the sentence the facts" which a party "considered as proved". 11 This
is but a part of the mental process from which the Court draws the essential ultimate facts. A
decision is not to be so clogged with details such that prolixity, if not confusion, may result. So long
as the decision of the Court of Appeals contains the necessary facts to warrant its conclusions, it is
no error for said court to withhold therefrom "any specific finding of facts with respect to the evidence
for the defense". Because as this Court well observed, "There is no law that so requires". 12 Indeed,
"the mere failure to specify (in the decision) the contentions of the appellant and the reasons for
refusing to believe them is not sufficient to hold the same contrary to the requirements of the
provisions of law and the Constitution". It is in this setting that in Manigque, it was held that the mere
fact that the findings "were based entirely on the evidence for the prosecution without taking into
consideration or even mentioning the appellant's side in the controversy as shown by his own
testimony", would not vitiate the judgment. 13 If the court did not recite in the decision the testimony
of each witness for, or each item of evidence presented by, the defeated party, it does not mean that
the court has overlooked such testimony or such item of evidence. 14 At any rate, the legal
presumptions are that official duty has been regularly performed, and that all the matters within an
issue in a case were laid before the court and passed upon by it. 15

Findings of fact, which the Court of Appeals is required to make, maybe defined as "the written
statement of the ultimate facts as found by the court ... and essential to support the decision and
judgment rendered thereon". 16They consist of the court's "conclusions" with respect to the
determinative facts in issue". 17 A question of law, upon the other hand, has been declared as "one
which does not call for an examination of the probative value of the evidence presented by the
parties." 18

2. By statute, "only questions of law may be raised" in an appeal by certiorari from a judgment of the
Court of Appeals. 19 That judgment is conclusive as to the facts. It is not appropriately the business
of this Court to alter the facts or to review the questions of fact. 20
With these guideposts, we now face the problem of whether the findings of fact of the Court of
Appeals support its judgment.

3. Was Carrascoso entitled to the first class seat he claims?

It is conceded in all quarters that on March 28, 1958 he paid to and received from petitioner a first
class ticket. But petitioner asserts that said ticket did not represent the true and complete intent and
agreement of the parties; that said respondent knew that he did not have confirmed reservations for
first class on any specific flight, although he had tourist class protection; that, accordingly, the
issuance of a first class ticket was no guarantee that he would have a first class ride, but that such
would depend upon the availability of first class seats.

These are matters which petitioner has thoroughly presented and discussed in its brief before the
Court of Appeals under its third assignment of error, which reads: "The trial court erred in finding that
plaintiff had confirmed reservations for, and a right to, first class seats on the "definite" segments of
his journey, particularly that from Saigon to Beirut". 21

And, the Court of Appeals disposed of this contention thus:

Defendant seems to capitalize on the argument that the issuance of a first-class ticket was
no guarantee that the passenger to whom the same had been issued, would be
accommodated in the first-class compartment, for as in the case of plaintiff he had yet to
make arrangements upon arrival at every station for the necessary first-class reservation.
We are not impressed by such a reasoning. We cannot understand how a reputable firm like
defendant airplane company could have the indiscretion to give out tickets it never meant to
honor at all. It received the corresponding amount in payment of first-class tickets and yet it
allowed the passenger to be at the mercy of its employees. It is more in keeping with the
ordinary course of business that the company should know whether or riot the tickets it
issues are to be honored or not.22

Not that the Court of Appeals is alone. The trial court similarly disposed of petitioner's contention,
thus:

On the fact that plaintiff paid for, and was issued a "First class" ticket, there can be no question.
Apart from his testimony, see plaintiff's Exhibits "A", "A-1", "B", "B-1," "B-2", "C" and "C-1", and
defendant's own witness, Rafael Altonaga, confirmed plaintiff's testimony and testified as follows:

Q. In these tickets there are marks "O.K." From what you know, what does this OK mean?

A. That the space is confirmed.

Q. Confirmed for first class?

A. Yes, "first class". (Transcript, p. 169)

xxx xxx xxx

Defendant tried to prove by the testimony of its witnesses Luis Zaldariaga and Rafael Altonaga that
although plaintiff paid for, and was issued a "first class" airplane ticket, the ticket was subject to
confirmation in Hongkong. The court cannot give credit to the testimony of said witnesses. Oral
evidence cannot prevail over written evidence, and plaintiff's Exhibits "A", "A-l", "B", "B-l", "C" and "C-
1" belie the testimony of said witnesses, and clearly show that the plaintiff was issued, and paid for,
a first class ticket without any reservation whatever.

Furthermore, as hereinabove shown, defendant's own witness Rafael Altonaga testified that the
reservation for a "first class" accommodation for the plaintiff was confirmed. The court cannot believe
that after such confirmation defendant had a verbal understanding with plaintiff that the "first class"
ticket issued to him by defendant would be subject to confirmation in Hongkong. 23

We have heretofore adverted to the fact that except for a slight difference of a few pesos in the
amount refunded on Carrascoso's ticket, the decision of the Court of First Instance was affirmed by
the Court of Appeals in all other respects. We hold the view that such a judgment of affirmance has
merged the judgment of the lower court. 24Implicit in that affirmance is a determination by the Court
of Appeals that the proceeding in the Court of First Instance was free from prejudicial error and "all
questions raised by the assignments of error and all questions that might have been raised are to be
regarded as finally adjudicated against the appellant". So also, the judgment affirmed "must be
regarded as free from all error". 25 We reached this policy construction because nothing in the
decision of the Court of Appeals on this point would suggest that its findings of fact are in any way at
war with those of the trial court. Nor was said affirmance by the Court of Appeals upon a ground or
grounds different from those which were made the basis of the conclusions of the trial court. 26

If, as petitioner underscores, a first-class-ticket holder is not entitled to a first class seat,
notwithstanding the fact that seat availability in specific flights is therein confirmed, then an air
passenger is placed in the hollow of the hands of an airline. What security then can a passenger
have? It will always be an easy matter for an airline aided by its employees, to strike out the very
stipulations in the ticket, and say that there was a verbal agreement to the contrary. What if the
passenger had a schedule to fulfill? We have long learned that, as a rule, a written document speaks
a uniform language; that spoken word could be notoriously unreliable. If only to achieve stability in
the relations between passenger and air carrier, adherence to the ticket so issued is desirable. Such
is the case here. The lower courts refused to believe the oral evidence intended to defeat the
covenants in the ticket.

The foregoing are the considerations which point to the conclusion that there are facts upon which
the Court of Appeals predicated the finding that respondent Carrascoso had a first class ticket and
was entitled to a first class seat at Bangkok, which is a stopover in the Saigon to Beirut leg of the
flight. 27 We perceive no "welter of distortions by the Court of Appeals of petitioner's statement of its
position", as charged by petitioner. 28 Nor do we subscribe to petitioner's accusation that respondent
Carrascoso "surreptitiously took a first class seat to provoke an issue". 29And this because, as
petitioner states, Carrascoso went to see the Manager at his office in Bangkok "to confirm my seat
and because from Saigon I was told again to see the Manager". 30 Why, then, was he allowed to take
a first class seat in the plane at Bangkok, if he had no seat? Or, if another had a better right to the
seat?

4. Petitioner assails respondent court's award of moral damages. Petitioner's trenchant claim is that
Carrascoso's action is planted upon breach of contract; that to authorize an award for moral
damages there must be an averment of fraud or bad faith;31 and that the decision of the Court of
Appeals fails to make a finding of bad faith. The pivotal allegations in the complaint bearing on this
issue are:

3. That ... plaintiff entered into a contract of air carriage with the Philippine Air Lines for a
valuable consideration, the latter acting as general agents for and in behalf of the defendant,
under which said contract, plaintiff was entitled to, as defendant agreed to furnish plaintiff,
 First Class passage on defendant's plane during the entire duration of plaintiff's tour of
Europe with Hongkong as starting point up to and until plaintiff's return trip to Manila, ... .

4. That, during the first two legs of the trip from Hongkong to Saigon and from Saigon to
Bangkok, defendant furnished to the plaintiff First Class accommodation but only after
protestations, arguments and/or insistence were made by the plaintiff with defendant's
employees.

5. That finally, defendant failed to provide First Class passage, but instead furnished plaintiff
only Tourist Class accommodations from Bangkok to Teheran and/or Casablanca, ... the
plaintiff has been compelled by defendant's employees to leave the First Class
accommodation berths at Bangkok after he was already seated.

6. That consequently, the plaintiff, desiring no repetition of the inconvenience and

embarrassments brought by defendant's breach of contract was forced to take a Pan
American World Airways plane on his return trip from Madrid to Manila.32

xxx xxx xxx

2. That likewise, as a result of defendant's failure to furnish First Class accommodations aforesaid,
plaintiff suffered inconveniences, embarrassments, and humiliations, thereby causing plaintiff mental
anguish, serious anxiety, wounded feelings, social humiliation, and the like injury, resulting in moral
damages in the amount of P30,000.00. 33

xxx xxx xxx

The foregoing, in our opinion, substantially aver: First, That there was a contract to furnish plaintiff a
first class passage covering, amongst others, the Bangkok-Teheran leg; Second, That said contract
was breached when petitioner failed to furnish first class transportation at Bangkok; and Third, that
there was bad faith when petitioner's employee compelled Carrascoso to leave his first class
accommodation berth "after he was already, seated" and to take a seat in the tourist class, by
reason of which he suffered inconvenience, embarrassments and humiliations, thereby causing him
mental anguish, serious anxiety, wounded feelings and social humiliation, resulting in moral
damages. It is true that there is no specific mention of the term bad faith in the complaint. But, the
inference of bad faith is there, it may be drawn from the facts and circumstances set forth
therein. 34 The contract was averred to establish the relation between the parties. But the stress of
the action is put on wrongful expulsion.

Quite apart from the foregoing is that (a) right the start of the trial, respondent's counsel placed
petitioner on guard on what Carrascoso intended to prove: That while sitting in the plane in Bangkok,
Carrascoso was ousted by petitioner's manager who gave his seat to a white man; 35 and (b)
evidence of bad faith in the fulfillment of the contract was presented without objection on the part of
the petitioner. It is, therefore, unnecessary to inquire as to whether or not there is sufficient averment
in the complaint to justify an award for moral damages. Deficiency in the complaint, if any, was cured
by the evidence. An amendment thereof to conform to the evidence is not even required. 36 On the
question of bad faith, the Court of Appeals declared:

That the plaintiff was forced out of his seat in the first class compartment of the plane
belonging to the defendant Air France while at Bangkok, and was transferred to the tourist
class not only without his consent but against his will, has been sufficiently established by
plaintiff in his testimony before the court, corroborated by the corresponding entry made by
the purser of the plane in his notebook which notation reads as follows:
 "First-class passenger was forced to go to the tourist class against his will, and that
the captain refused to intervene",

and by the testimony of an eye-witness, Ernesto G. Cuento, who was a co-passenger. The
captain of the plane who was asked by the manager of defendant company at Bangkok to
intervene even refused to do so. It is noteworthy that no one on behalf of defendant ever
contradicted or denied this evidence for the plaintiff. It could have been easy for defendant to
present its manager at Bangkok to testify at the trial of the case, or yet to secure his
disposition; but defendant did neither. 37

The Court of appeals further stated —

Neither is there evidence as to whether or not a prior reservation was made by the white
man. Hence, if the employees of the defendant at Bangkok sold a first-class ticket to him
when all the seats had already been taken, surely the plaintiff should not have been picked
out as the one to suffer the consequences and to be subjected to the humiliation and
indignity of being ejected from his seat in the presence of others. Instead of explaining to the
white man the improvidence committed by defendant's employees, the manager adopted the
more drastic step of ousting the plaintiff who was then safely ensconsced in his rightful seat.
We are strengthened in our belief that this probably was what happened there, by the
testimony of defendant's witness Rafael Altonaga who, when asked to explain the meaning
of the letters "O.K." appearing on the tickets of plaintiff, said "that the space is confirmed for
first class. Likewise, Zenaida Faustino, another witness for defendant, who was the chief of
the Reservation Office of defendant, testified as follows:

"Q How does the person in the ticket-issuing office know what reservation the
passenger has arranged with you?

A They call us up by phone and ask for the confirmation." (t.s.n., p. 247, June 19,
1959)

In this connection, we quote with approval what the trial Judge has said on this point:

Why did the, using the words of witness Ernesto G. Cuento, "white man" have a
"better right" to the seat occupied by Mr. Carrascoso? The record is silent. The
defendant airline did not prove "any better", nay, any right on the part of the "white
man" to the "First class" seat that the plaintiff was occupying and for which he paid
and was issued a corresponding "first class" ticket.

If there was a justified reason for the action of the defendant's Manager in Bangkok,
the defendant could have easily proven it by having taken the testimony of the said
Manager by deposition, but defendant did not do so; the presumption is that
evidence willfully suppressed would be adverse if produced [Sec. 69, par (e), Rules
of Court]; and, under the circumstances, the Court is constrained to find, as it does
find, that the Manager of the defendant airline in Bangkok not merely asked but
threatened the plaintiff to throw him out of the plane if he did not give up his "first
class" seat because the said Manager wanted to accommodate, using the words of
the witness Ernesto G. Cuento, the "white man".38

It is really correct to say that the Court of Appeals in the quoted portion first transcribed did
not use the term "bad faith". But can it be doubted that the recital of facts therein points to
bad faith? The manager not only prevented Carrascoso from enjoying his right to a first class
 seat; worse, he imposed his arbitrary will; he forcibly ejected him from his seat, made him
suffer the humiliation of having to go to the tourist class compartment - just to give way to
another passenger whose right thereto has not been established. Certainly, this is bad faith.
Unless, of course, bad faith has assumed a meaning different from what is understood in
law. For, "bad faith" contemplates a "state of mind affirmatively operating with furtive design
or with some motive of self-interest or will or for ulterior purpose." 39

And if the foregoing were not yet sufficient, there is the express finding of bad faith in the
judgment of the Court of First Instance, thus:

The evidence shows that the defendant violated its contract of transportation with
plaintiff in bad faith, with the aggravating circumstances that defendant's Manager in
Bangkok went to the extent of threatening the plaintiff in the presence of many
passengers to have him thrown out of the airplane to give the "first class" seat that
he was occupying to, again using the words of the witness Ernesto G. Cuento, a
"white man" whom he (defendant's Manager) wished to accommodate, and the
defendant has not proven that this "white man" had any "better right" to occupy the
"first class" seat that the plaintiff was occupying, duly paid for, and for which the
corresponding "first class" ticket was issued by the defendant to him.40

5. The responsibility of an employer for the tortious act of its employees need not be essayed. It is
well settled in law. 41 For the willful malevolent act of petitioner's manager, petitioner, his employer,
must answer. Article 21 of the Civil Code says:

ART. 21. Any person who willfully causes loss or injury to another in a manner that is
contrary to morals, good customs or public policy shall compensate the latter for the
damage.

In parallel circumstances, we applied the foregoing legal precept; and, we held that upon the
provisions of Article 2219 (10), Civil Code, moral damages are recoverable. 42

6. A contract to transport passengers is quite different in kind and degree from any other contractual
relation. 43 And this, because of the relation which an air-carrier sustains with the public. Its business
is mainly with the travelling public. It invites people to avail of the comforts and advantages it offers.
The contract of air carriage, therefore, generates a relation attended with a public duty. Neglect or
malfeasance of the carrier's employees, naturally, could give ground for an action for damages.

Passengers do not contract merely for transportation. They have a right to be treated by the carrier's
employees with kindness, respect, courtesy and due consideration. They are entitled to be protected
against personal misconduct, injurious language, indignities and abuses from such employees. So it
is, that any rule or discourteous conduct on the part of employees towards a passenger gives the
latter an action for damages against the carrier. 44

Thus, "Where a steamship company 45 had accepted a passenger's check, it was a breach of
contract and a tort, giving a right of action for its agent in the presence of third persons to falsely
notify her that the check was worthless and demand payment under threat of ejection, though the
language used was not insulting and she was not ejected." 46 And this, because, although the
relation of passenger and carrier is "contractual both in origin and nature" nevertheless "the act that
breaks the contract may be also a tort". 47 And in another case, "Where a passenger on a railroad
train, when the conductor came to collect his fare tendered him the cash fare to a point where the
train was scheduled not to stop, and told him that as soon as the train reached such point he would
pay the cash fare from that point to destination, there was nothing in the conduct of the passenger
which justified the conductor in using insulting language to him, as by calling him a lunatic," 48 and
the Supreme Court of South Carolina there held the carrier liable for the mental suffering of said
passenger. 1awphîl.nèt

Petitioner's contract with Carrascoso is one attended with public duty. The stress of Carrascoso's
action as we have said, is placed upon his wrongful expulsion. This is a violation of public duty by
the petitioner air carrier — a case of quasi-delict. Damages are proper.

7. Petitioner draws our attention to respondent Carrascoso's testimony, thus —

Q You mentioned about an attendant. Who is that attendant and purser?

A When we left already — that was already in the trip — I could not help it. So one of the
flight attendants approached me and requested from me my ticket and I said, What for? and
she said, "We will note that you transferred to the tourist class". I said, "Nothing of that kind.
That is tantamount to accepting my transfer." And I also said, "You are not going to note
anything there because I am protesting to this transfer".

Q Was she able to note it?

A No, because I did not give my ticket.

Q About that purser?

A Well, the seats there are so close that you feel uncomfortable and you don't have enough
leg room, I stood up and I went to the pantry that was next to me and the purser was there.
He told me, "I have recorded the incident in my notebook." He read it and translated it to me
— because it was recorded in French — "First class passenger was forced to go to the
tourist class against his will, and that the captain refused to intervene."

Mr. VALTE —

I move to strike out the last part of the testimony of the witness because the best evidence
would be the notes. Your Honor.

COURT —

I will allow that as part of his testimony. 49

Petitioner charges that the finding of the Court of Appeals that the purser made an entry in his
notebook reading "First class passenger was forced to go to the tourist class against his will, and
that the captain refused to intervene" is predicated upon evidence [Carrascoso's testimony above]
which is incompetent. We do not think so. The subject of inquiry is not the entry, but the ouster
incident. Testimony on the entry does not come within the proscription of the best evidence rule.
Such testimony is admissible. 49a

Besides, from a reading of the transcript just quoted, when the dialogue happened, the impact of the
startling occurrence was still fresh and continued to be felt. The excitement had not as yet died
down. Statements then, in this environment, are admissible as part of the res gestae. 50 For, they
grow "out of the nervous excitement and mental and physical condition of the declarant". 51 The
utterance of the purser regarding his entry in the notebook was spontaneous, and related to the
circumstances of the ouster incident. Its trustworthiness has been guaranteed. 52 It thus escapes the
operation of the hearsay rule. It forms part of the res gestae.

At all events, the entry was made outside the Philippines. And, by an employee of petitioner. It would
have been an easy matter for petitioner to have contradicted Carrascoso's testimony. If it were really
true that no such entry was made, the deposition of the purser could have cleared up the matter.

We, therefore, hold that the transcribed testimony of Carrascoso is admissible in evidence.

8. Exemplary damages are well awarded. The Civil Code gives the court ample power to grant
exemplary damages — in contracts and quasi- contracts. The only condition is that defendant should
have "acted in a wanton, fraudulent, reckless, oppressive, or malevolent manner." 53 The manner of
ejectment of respondent Carrascoso from his first class seat fits into this legal precept. And this, in
addition to moral damages.54

9. The right to attorney's fees is fully established. The grant of exemplary damages justifies a similar
judgment for attorneys' fees. The least that can be said is that the courts below felt that it is but just
and equitable that attorneys' fees be given. 55 We do not intend to break faith with the tradition that
discretion well exercised — as it was here — should not be disturbed.

10. Questioned as excessive are the amounts decreed by both the trial court and the Court of
Appeals, thus: P25,000.00 as moral damages; P10,000.00, by way of exemplary damages, and
P3,000.00 as attorneys' fees. The task of fixing these amounts is primarily with the trial court. 56 The
Court of Appeals did not interfere with the same. The dictates of good sense suggest that we give
our imprimatur thereto. Because, the facts and circumstances point to the reasonableness thereof.57

On balance, we say that the judgment of the Court of Appeals does not suffer from reversible error.
We accordingly vote to affirm the same. Costs against petitioner. So ordered.

G.R. No. 156109 November 18, 2004

KHRISTINE REA M. REGINO, Assisted and Represented by ARMANDO REGINO, petitioner,

vs.
PANGASINAN COLLEGES OF SCIENCE AND TECHNOLOGY, RACHELLE A. GAMUROT and
ELISSA BALADAD, respondents.

DECISION

PANGANIBAN, J.:

Upon enrolment, students and their school enter upon a reciprocal contract. The students agree to
abide by the standards of academic performance and codes of conduct, issued usually in the form of
manuals that are distributed to the enrollees at the start of the school term. Further, the school
informs them of the itemized fees they are expected to pay. Consequently, it cannot, after the
enrolment of a student, vary the terms of the contract. It cannot require fees other than those it
specified upon enrolment.

The Case

Before the Court is a Petition for Review under Rule 45,1 seeking to nullify the July 12, 20022 and the
November 22, 20023 Orders of the Regional Trial Court (RTC) of Urdaneta City, Pangasinan (Branch
48) in Civil Case No. U-7541. The decretal portion of the first assailed Order reads:

"WHEREFORE, the Court GRANTS the instant motion to dismiss for lack of cause of
action."4

The second challenged Order denied petitioner's Motion for Reconsideration.

The Facts

Petitioner Khristine Rea M. Regino was a first year computer science student at Respondent
Pangasinan Colleges of Science and Technology (PCST). Reared in a poor family, Regino went to
college mainly through the financial support of her relatives. During the second semester of school
year 2001-2002, she enrolled in logic and statistics subjects under Respondents Rachelle A.
Gamurot and Elissa Baladad, respectively, as teachers.

In February 2002, PCST held a fund raising campaign dubbed the "Rave Party and Dance
Revolution," the proceeds of which were to go to the construction of the school's tennis and
volleyball courts. Each student was required to pay for two tickets at the price of P100 each. The
project was allegedly implemented by recompensing students who purchased tickets with additional
points in their test scores; those who refused to pay were denied the opportunity to take the final
examinations.

Financially strapped and prohibited by her religion from attending dance parties and celebrations,
Regino refused to pay for the tickets. On March 14 and March 15, 2002, the scheduled dates of the
final examinations in logic and statistics, her teachers -- Respondents Rachelle A. Gamurot and
Elissa Baladad -- allegedly disallowed her from taking the tests. According to petitioner, Gamurot
made her sit out her logic class while her classmates were taking their examinations. The next day,
Baladad, after announcing to the entire class that she was not permitting petitioner and another
student to take their statistics examinations for failing to pay for their tickets, allegedly ejected them
from the classroom. Petitioner's pleas ostensibly went unheeded by Gamurot and Baladad, who
unrelentingly defended their positions as compliance with PCST's policy.

On April 25, 2002, petitioner filed, as a pauper litigant, a Complaint5 for damages against PCST,
Gamurot and Baladad. In her Complaint, she prayed for P500,000 as nominal damages; P500,000
as moral damages; at least P1,000,000 as exemplary damages; P250,000 as actual damages; plus
the costs of litigation and attorney's fees.

On May 30, 2002, respondents filed a Motion to Dismiss6 on the ground of petitioner's failure to
exhaust administrative remedies. According to respondents, the question raised involved the
determination of the wisdom of an administrative policy of the PCST; hence, the case should have
been initiated before the proper administrative body, the Commission of Higher Education (CHED).

In her Comment to respondents' Motion, petitioner argued that prior exhaustion of administrative
remedies was unnecessary, because her action was not administrative in nature, but one purely for
damages arising from respondents' breach of the laws on human relations. As such, jurisdiction lay
with the courts.

On July 12, 2002, the RTC dismissed the Complaint for lack of cause of action.

Ruling of the Regional Trial Court

In granting respondents' Motion to Dismiss, the trial court noted that the instant controversy involved
a higher institution of learning, two of its faculty members and one of its students. It added that
Section 54 of the Education Act of 1982 vested in the Commission on Higher Education (CHED) the
supervision and regulation of tertiary schools. Thus, it ruled that the CHED, not the courts, had
jurisdiction over the controversy.7

In its dispositive portion, the assailed Order dismissed the Complaint for "lack of cause of action"
without, however, explaining this ground.

Aggrieved, petitioner filed the present Petition on pure questions of law.8

Issues

In her Memorandum, petitioner raises the following issues for our consideration:

"Whether or not the principle of exhaustion of administrative remedies applies in a civil action
exclusively for damages based on violation of the human relation provisions of the Civil
Code, filed by a student against her former school.

"Whether or not there is a need for prior declaration of invalidity of a certain school
administrative policy by the Commission on Higher Education (CHED) before a former
student can successfully maintain an action exclusively for damages in regular courts.

"Whether or not the Commission on Higher Education (CHED) has exclusive original
jurisdiction over actions for damages based upon violation of the Civil Code provisions on
human relations filed by a student against the school."9

All of the foregoing point to one issue -- whether the doctrine of exhaustion of administrative
remedies is applicable. The Court, however, sees a second issue which, though not expressly raised
by petitioner, was impliedly contained in her Petition: whether the Complaint stated sufficient
cause(s) of action.

The Court's Ruling

The Petition is meritorious.

First Issue:

Exhaustion of Administrative Remedies

Respondents anchored their Motion to Dismiss on petitioner's alleged failure to exhaust

administrative remedies before resorting to the RTC. According to them, the determination of the
controversy hinge on the validity, the wisdom and the propriety of PCST's academic policy. Thus, the
Complaint should have been lodged in the CHED, the administrative body tasked under Republic
Act No. 7722 to implement the state policy to "protect, foster and promote the right of all citizens to
affordable quality education at all levels and to take appropriate steps to ensure that education is
accessible to all."10

Petitioner counters that the doctrine finds no relevance to the present case since she is praying for
damages, a remedy beyond the domain of the CHED and well within the jurisdiction of the courts.11

Petitioner is correct. First, the doctrine of exhaustion of administrative remedies has no bearing on
the present case. In Factoran Jr. v. CA,12 the Court had occasion to elucidate on the rationale behind
this doctrine:

"The doctrine of exhaustion of administrative remedies is basic. Courts, for reasons of law,
comity, and convenience, should not entertain suits unless the available administrative
remedies have first been resorted to and the proper authorities have been given the
appropriate opportunity to act and correct their alleged errors, if any, committed in the
administrative forum. x x x.13 "

Petitioner is not asking for the reversal of the policies of PCST. Neither is she demanding it to allow
her to take her final examinations; she was already enrolled in another educational institution. A
reversal of the acts complained of would not adequately redress her grievances; under the
circumstances, the consequences of respondents' acts could no longer be undone or rectified.

Second, exhaustion of administrative remedies is applicable when there is competence on the part
of the administrative body to act upon the matter complained of.14 Administrative agencies are not
courts; they are neither part of the judicial system, nor are they deemed judicial
tribunals.15 Specifically, the CHED does not have the power to award damages.16 Hence, petitioner
could not have commenced her case before the Commission.

Third, the exhaustion doctrine admits of exceptions, one of which arises when the issue is purely
legal and well within the jurisdiction of the trial court.17 Petitioner's action for damages inevitably calls
for the application and the interpretation of the Civil Code, a function that falls within the jurisdiction
of the courts.18

Second Issue:

Cause of Action

Sufficient Causes of Action Stated in the Allegations in the Complaint

As a rule, every complaint must sufficiently allege a cause of action; failure to do so warrants its
dismissal.19 A complaint is said to assert a sufficient cause of action if, admitting what appears solely
on its face to be correct, the plaintiff would be entitled to the relief prayed for. Assuming the facts that
are alleged to be true, the court should be able to render a valid judgment in accordance with the
prayer in the complaint.20

A motion to dismiss based on lack of cause of action hypothetically admits the truth of the alleged
facts. In their Motion to Dismiss, respondents did not dispute any of petitioner's allegations, and they
admitted that "x x x the crux of plaintiff's cause of action is the determination of whether or not the
assessment of P100 per ticket is excessive or oppressive."21 They thereby premised their prayer for
dismissal on the Complaint's alleged failure to state a cause of action. Thus, a reexamination of the
Complaint is in order.
The Complaint contains the following factual allegations:

"10. In the second week of February 2002, defendant Rachelle A. Gamurot, in connivance
with PCST, forced plaintiff and her classmates to buy or take two tickets each, x x x;

"11. Plaintiff and many of her classmates objected to the forced distribution and selling of
tickets to them but the said defendant warned them that if they refused [to] take or pay the
price of the two tickets they would not be allowed at all to take the final examinations;

"12. As if to add insult to injury, defendant Rachelle A. Gamurot bribed students with
additional fifty points or so in their test score in her subject just to unjustly influence and
compel them into taking the tickets;

"13. Despite the students' refusal, they were forced to take the tickets because [of] defendant
Rachelle A. Gamurot's coercion and act of intimidation, but still many of them including the
plaintiff did not attend the dance party imposed upon them by defendants PCST and
Rachelle A. Gamurot;

"14. Plaintiff was not able to pay the price of her own two tickets because aside form the fact
that she could not afford to pay them it is also against her religious practice as a member of
a certain religious congregation to be attending dance parties and celebrations;

"15. On March 14, 2002, before defendant Rachelle A. Gamurot gave her class its final
examination in the subject 'Logic' she warned that students who had not paid the tickets
would not be allowed to participate in the examination, for which threat and intimidation many
students were eventually forced to make payments:

"16. Because plaintiff could not afford to pay, defendant Rachelle A. Gamurot inhumanly
made plaintiff sit out the class but the defendant did not allow her to take her final
examination in 'Logic;'

"17. On March 15, 2002 just before the giving of the final examination in the subject
'Statistics,' defendant Elissa Baladad, in connivance with defendants Rachelle A. Gamurot
and PCST, announced in the classroom that she was not allowing plaintiff and another
student to take the examination for their failure and refusal to pay the price of the tickets, and
thenceforth she ejected plaintiff and the other student from the classroom;

"18. Plaintiff pleaded for a chance to take the examination but all defendants could say was
that the prohibition to give the examinations to non-paying students was an administrative
decision;

"19. Plaintiff has already paid her tuition fees and other obligations in the school;

"20. That the above-cited incident was not a first since PCST also did another forced
distribution of tickets to its students in the first semester of school year 2001-2002; x x x " 22

The foregoing allegations show two causes of action; first, breach of contract; and second, liability
for tort.

Reciprocity of the
School-Student Contract
In Alcuaz v. PSBA,23 the Court characterized the relationship between the school and the student as
a contract, in which "a student, once admitted by the school is considered enrolled for one
semester."24 Two years later, in Non v. Dames II,25 the Court modified the "termination of contract
theory" in Alcuaz by holding that the contractual relationship between the school and the student is
not only semestral in duration, but for the entire period the latter are expected to complete
it."26 Except for the variance in the period during which the contractual relationship is considered to
subsist, both Alcuaz and Non were unanimous in characterizing the school-student relationship as
contractual in nature.

The school-student relationship is also reciprocal. Thus, it has consequences appurtenant to and
inherent in all contracts of such kind -- it gives rise to bilateral or reciprocal rights and obligations.
The school undertakes to provide students with education sufficient to enable them to pursue higher
education or a profession. On the other hand, the students agree to abide by the academic
requirements of the school and to observe its rules and regulations.27

The terms of the school-student contract are defined at the moment of its inception -- upon
enrolment of the student. Standards of academic performance and the code of behavior and
discipline are usually set forth in manuals distributed to new students at the start of every school
year. Further, schools inform prospective enrollees the amount of fees and the terms of payment.

In practice, students are normally required to make a down payment upon enrollment, with the
balance to be paid before every preliminary, midterm and final examination. Their failure to pay their
financial obligation is regarded as a valid ground for the school to deny them the opportunity to take
these examinations.

The foregoing practice does not merely ensure compliance with financial obligations; it also
underlines the importance of major examinations. Failure to take a major examination is usually fatal
to the students' promotion to the next grade or to graduation. Examination results form a significant
basis for their final grades. These tests are usually a primary and an indispensable requisite to their
elevation to the next educational level and, ultimately, to their completion of a course.

Education is not a measurable commodity. It is not possible to determine who is "better educated"
than another. Nevertheless, a student's grades are an accepted approximation of what would
otherwise be an intangible product of countless hours of study. The importance of grades cannot be
discounted in a setting where education is generally the gate pass to employment opportunities and
better life; such grades are often the means by which a prospective employer measures whether a
job applicant has acquired the necessary tools or skills for a particular profession or trade.

Thus, students expect that upon their payment of tuition fees, satisfaction of the set academic
standards, completion of academic requirements and observance of school rules and regulations,
the school would reward them by recognizing their "completion" of the course enrolled in.

The obligation on the part of the school has been established in Magtibay v. Garcia,28 Licup v.
University of San Carlos29 and Ateneo de Manila University v. Garcia,30 in which the Court held that,
barring any violation of the rules on the part of the students, an institution of higher learning has a
contractual obligation to afford its students a fair opportunity to complete the course they seek to
pursue.

We recognize the need of a school to fund its facilities and to meet astronomical operating costs; this
is a reality in running it. Crystal v. Cebu International School31 upheld the imposition by respondent
school of a "land purchase deposit" in the amount of P50,000 per student to be used for the
"purchase of a piece of land and for the construction of new buildings and other facilities x x x which
the school would transfer [to] and occupy after the expiration of its lease contract over its present
site."

The amount was refundable after the student graduated or left the school. After noting that the
imposition of the fee was made only after prior consultation and approval by the parents of the
students, the Court held that the school committed no actionable wrong in refusing to admit the
children of the petitioners therein for their failure to pay the "land purchase deposit" and the 2.5
percent monthly surcharge thereon.

In the present case, PCST imposed the assailed revenue-raising measure belatedly, in the middle of
the semester. It exacted the dance party fee as a condition for the students' taking the final
examinations, and ultimately for its recognition of their ability to finish a course. The fee, however,
was not part of the school-student contract entered into at the start of the school year. Hence, it
could not be unilaterally imposed to the prejudice of the enrollees.

Such contract is by no means an ordinary one. In Non, we stressed that the school-student contract
"is imbued with public interest, considering the high priority given by the Constitution to education
and the grant to the State of supervisory and regulatory powers over all educational
institutions."32 Sections 5 (1) and (3) of Article XIV of the 1987 Constitution provide:

"The State shall protect and promote the right of all citizens to quality education at all levels
and shall take appropriate steps to make such declaration accessible to all.

"Every student has a right to select a profession or course of study, subject to fair,
reasonable and equitable admission and academic requirements."

The same state policy resonates in Section 9(2) of BP 232, otherwise known as the Education Act of
1982:

"Section 9. Rights of Students in School. – In addition to other rights, and subject to the
limitations prescribed by law and regulations, students and pupils in all schools shall enjoy
the following rights:

xxx xxx xxx

(2) The right to freely choose their field of study subject to existing curricula and to
continue their course therein up to graduation, except in cases of academic
deficiency, or violation of disciplinary regulations."

Liability for Tort

In her Complaint, petitioner also charged that private respondents "inhumanly punish students x x x
by reason only of their poverty, religious practice or lowly station in life, which inculcated upon
[petitioner] the feelings of guilt, disgrace and unworthiness;"33 as a result of such punishment, she
was allegedly unable to finish any of her subjects for the second semester of that school year and
had to lag behind in her studies by a full year. The acts of respondents supposedly caused her
extreme humiliation, mental agony and "demoralization of unimaginable proportions" in violation of
Articles 19, 21 and 26 of the Civil Code. These provisions of the law state thus:

"Article 19. Every person must, in the exercise of his rights and in the performance of his
duties, act with justice, give everyone his due, and observe honesty and good faith."
 "Article 21. Any person who wilfully 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."

"Article 26. Every person shall respect the dignity, personality, privacy and peace of mind of
his neighbors and other persons. The following and similar acts, though they may not
constitute a criminal offense, shall produce a cause of action for damages, prevention and
other relief:

(1) Prying into the privacy of another's residence;

(2) Meddling with or disturbing the private life or family relations of another;

(3) Intriguing to cause another to be alienated from his friends;

(4) Vexing or humiliating another on account of his beliefs, lowly station in life, place
of birth, physical defect, or other personal condition."

Generally, liability for tort arises only between parties not otherwise bound by a contract. An
academic institution, however, may be held liable for tort even if it has an existing contract with its
students, since the act that violated the contract may also be a tort. We ruled thus in PSBA vs.
CA,34 from which we quote:

"x x x A perusal of Article 2176 [of the Civil Code] shows that obligations arising from quasi-
delicts or tort, also known as extra-contractual obligations, arise only between parties not
otherwise bound by contract, whether express or implied. However, this impression has not
prevented this Court from determining the existence of a tort even when there obtains a
contract. In Air France v. Carrascoso (124 Phil. 722), the private respondent was awarded
damages for his unwarranted expulsion from a first-class seat aboard the petitioner airline. It
is noted, however, that the Court referred to the petitioner-airline's liability as one arising
from tort, not one arising form a contract of carriage. In effect, Air France is authority for the
view that liability from tort may exist even if there is a contract, for the act that breaks the
contract may be also a tort. x x x This view was not all that revolutionary, for even as early as
1918, this Court was already of a similar mind. In Cangco v. Manila Railroad (38 Phil. 780),
Mr. Justice Fisher elucidated thus: 'x x x. When such a contractual relation exists the obligor
may break the contract under such conditions that the same act which constitutes a breach
of the contract would have constituted the source of an extra-contractual obligation had no
contract existed between the parties.'

"Immediately what comes to mind is the chapter of the Civil Code on Human Relations,
particularly Article 21 x x x."35

Academic Freedom

In their Memorandum, respondents harp on their right to "academic freedom." We are not
impressed. According to present jurisprudence, academic freedom encompasses the independence
of an academic institution to determine for itself (1) who may teach, (2) what may be taught, (3) how
it shall teach, and (4) who may be admitted to study.36In Garcia v. the Faculty Admission Committee,
Loyola School of Theology,37 the Court upheld the respondent therein when it denied a female
student's admission to theological studies in a seminary for prospective priests. The Court defined
the freedom of an academic institution thus: "to decide for itself aims and objectives and how best to
attain them x x x free from outside coercion or interference save possibly when overriding public
welfare calls for some restraint."38

In Tangonan v. Paño,39 the Court upheld, in the name of academic freedom, the right of the school to
refuse readmission of a nursing student who had been enrolled on probation, and who had failed her
nursing subjects. These instances notwithstanding, the Court has emphasized that once a school
has, in the name of academic freedom, set its standards, these should be meticulously observed
and should not be used to discriminate against certain students.40 After accepting them upon
enrollment, the school cannot renege on its contractual obligation on grounds other than those made
known to, and accepted by, students at the start of the school year.

In sum, the Court holds that the Complaint alleges sufficient causes of action against respondents,
and that it should not have been summarily dismissed. Needless to say, the Court is not holding
respondents liable for the acts complained of. That will have to be ruled upon in due course by the
court a quo.

WHEREFORE, the Petition is hereby GRANTED, and the assailed Orders REVERSED. The trial
court is DIRECTED to reinstate the Complaint and, with all deliberate speed, to continue the
proceedings in Civil Case No. U-7541. No costs.

SO ORDERED.

II. ACT OR OMISSION

G.R. No. L-13505 February 4, 1919

GEO. W. DAYWALT, plaintiff-appellant,

vs.
LA CORPORACION DE LOS PADRES AGUSTINOS RECOLETOS, ET AL., defendants-appellees.

C. C. Cohn and Thos. D. Aitken for appellant.

Crossfield & O'Brien for appellee.

STREET, J.:

In the year 1902, Teodorica Endencia, an unmarried woman, resident in the Province of Mindoro,
executed a contract whereby she obligated herself to convey to Geo. W. Daywalt, a tract of land
situated in the barrio of Mangarin, municipality of Bulalacao, now San Jose, in said province. It was
agreed that a deed should be executed as soon as the title to the land should be perfected by
proceedings in the Court of Land Registration and a Torrens certificate should be produced therefore
in the name of Teodorica Endencia. A decree recognizing the right of Teodorica as owner was
entered in said court in August 1906, but the Torrens certificate was not issued until later. The
parties, however, met immediately upon the entering of this decree and made a new contract with a
view to carrying their original agreement into effect. This new contract was executed in the form of a
deed of conveyance and bears date of August 16, 1906. The stipulated price was fixed at P4,000,
and the area of the land enclosed in the boundaries defined in the contract was stated to be 452
hectares and a fraction.

The second contract was not immediately carried into effect for the reason that the Torrens
certificate was not yet obtainable and in fact said certificate was not issued until the period of
performance contemplated in the contract had expired. Accordingly, upon October 3, 1908, the
parties entered into still another agreement, superseding the old, by which Teodorica Endencia
agreed upon receiving the Torrens title to the land in question, to deliver the same to the Hongkong
and Shanghai Bank in Manila, to be forwarded to the Crocker National Bank in San Francisco,
where it was to be delivered to the plaintiff upon payment of a balance of P3,100.

The Torrens certificate was in time issued to Teodorica Endencia, but in the course of the
proceedings relative to the registration of the land, it was found by official survey that the area of the
tract inclosed in the boundaries stated in the contract was about 1.248 hectares of 452 hectares as
stated in the contract. In view of this development Teodorica Endencia became reluctant to transfer
the whole tract to the purchaser, asserting that she never intended to sell so large an amount of land
and that she had been misinformed as to its area.

This attitude of hers led to litigation in which Daywalt finally succeeded, upon appeal to the Supreme
Court, in obtaining a decree for specific performance; and Teodorica Endencia was ordered to
convey the entire tract of land to Daywalt pursuant to the contract of October 3, 1908, which contract
was declared to be in full force and effect. This decree appears to have become finally effective in
the early part of the year 1914.1

The defendant, La Corporacion de los Padres Recoletos, is a religious corporation, with its domicile
in the city of Manila. Said corporation was formerly the owner of a large tract of land, known as the
San Jose Estate, on the island of Mindoro, which was sold to the Government of the Philippine
Islands in the year 1909. The same corporation was at this time also the owner of another estate on
the same island immediately adjacent to the land which Teodorica Endencia had sold to Geo. W.
Daywalt; and for many years the Recoletos Fathers had maintained large herds of cattle on the
farms referred to. Their representative, charged with management of these farms, was father Isidoro
Sanz, himself a members of the order. Father Sanz had long been well acquainted with Teodorica
Endencia and exerted over her an influence and ascendency due to his religious character as well
as to the personal friendship which existed between them. Teodorica appears to be a woman of little
personal force, easily subject to influence, and upon all the important matters of business was
accustomed to seek, and was given, the advice of father Sanz and other members of his order with
whom she came in contact.

Father Sanz was fully aware of the existence of the contract of 1902 by which Teodorica Endencia
agreed to sell her land to the plaintiff as well as of the later important developments connected with
the history of that contract and the contract substituted successively for it; and in particular Father
Sanz, as well as other members of the defendant corporation, knew of the existence of the contract
of October 3, 1908, which, as we have already seen finally fixed the rights of the parties to the
property in question. When the Torrens certificate was finally issued in 1909 in favor of Teodorica
Endencia, she delivered it for safekeeping to the defendant corporation, and it was then taken to
Manila where it remained in the custody and under the control of P. Juan Labarga the procurador
and chief official of the defendant corporation, until the deliver thereof to the plaintiff was made
compulsory by reason of the decree of the Supreme Court in 1914.

When the defendant corporation sold the San Jose Estate, it was necessary to bring the cattle off of
that property; and, in the first half of 1909, some 2,368 head were removed to the estate of the
corporation immediately adjacent to the property which the plaintiff had purchased from Teodorica
Endencia. As Teodorica still retained possession of said property Father Sanz entered into an
arrangement with her whereby large numbers of cattle belonging to the defendant corporation were
pastured upon said land during a period extending from June 1, 1909, to May 1, 1914.

Under the first cause stated in the complaint in the present action the plaintiff seeks to recover from
the defendant corporation the sum of P24,000, as damages for the use and occupation of the land in
question by reason of the pasturing of cattle thereon during the period stated. The trial court came to
the conclusion that the defendant corporation was liable for damages by reason of the use and
occupation of the premises in the manner stated; and fixed the amount to be recovered at P2,497.
The plaintiff appealed and has assigned error to this part of the judgment of the court below, insisting
that damages should have been awarded in a much larger sum and at least to the full extent of
P24,000, the amount claimed in the complaint.

As the defendant did not appeal, the property of allowing damages for the use and occupation of the
land to the extent o P2,497, the amount awarded, is not now in question an the only thing here to be
considered, in connection with this branch of the case, is whether the damages allowed under this
head should be increased. The trial court rightly ignored the fact that the defendant corporation had
paid Teodorica Endencia of ruse and occupation of the same land during the period in question at
the rate of P425 per annum, inasmuch as the final decree of this court in the action for specific
performance is conclusive against her right, and as the defendant corporation had notice of the
rights of the plaintiff under this contract of purchase, it can not be permitted that the corporation
should escape liability in this action by proving payment of rent to a person other than the true
owner.

With reference to the rate of which compensation should be estimated the trial court came to the
following conclusion:

As to the rate of the compensation, the plaintiff contends that the defendant corporation
maintained at leas one thousand head of cattle on the land and that the pasturage was of the
value of forty centavos per head monthly, or P4,800 annually, for the whole tract. The court
can not accept this view. It is rather improbable that 1,248 hectares of wild Mindoro land
would furnish sufficient pasturage for one thousand head of cattle during the entire year, and,
considering the locality, the rate of forty centavos per head monthly seems too high. The
evidence shows that after having recovered possession of the land the plaintiff rented it to
the defendant corporation for fifty centavos per hectares annually, the tenant to pay the taxes
on the land, and this appears to be a reasonable rent. There is no reason to suppose that the
land was worth more for grazing purposes during the period from 1909 to 1913, than it was
at the later period. Upon this basis the plaintiff is entitled to damages in the sum of p2,497,
and is under no obligation to reimburse the defendants for the land taxes paid by either of
them during the period the land was occupied by the defendant corporation. It may be
mentioned in this connection that the Lontok tract adjoining the land in question and
containing over three thousand hectares appears to have been leased for only P1,000 a
year, plus the taxes.

From this it will be seen that the trial court estimated the rental value of the land for grazing purposes
at 50 centavos per hectare per annum, and roughly adopted the period of four years as the time for
which compensation at that rate should be made. As the court had already found that the defendant
was liable for these damages from June, 1, 1909, to May 1, 1914, or a period of four years and
eleven months, there seems some ground for the contention made in the appellant's first assignment
of error that the court's computation was erroneous, even accepting the rule upon which the
damages were assessed, as it is manifest that at the rate of 50 centavos per hectare per annum, the
damages for four years and eleven months would be P3,090.

Notwithstanding this circumstance, we are of the opinion that the damages assessed are sufficient to
compensate the plaintiff for the use and occupation of the land during the whole time it was used.
There is evidence in the record strongly tending to show that the wrongful use of the land by the
defendant was not continuous throughout the year but was confined mostly to the reason when the
forage obtainable on the land of the defendant corporation was not sufficient to maintain its cattle, for
which reason it became necessary to allow them to go over to pasture on the land in question; and it
is not clear that the whole of the land was used for pasturage at any time. Considerations of this
character probably led the trial court to adopt four years as roughly being the period during which
compensation should be allowed. But whether this was advertently done or not, we see no sufficient
reason, in the uncertainty of the record with reference to the number of the cattle grazed and the
period when the land was used, for substituting our guess for the estimate made by the trial court.

In the second cause of action stated in the complaint the plaintiff seeks to recover from the
defendant corporation the sum of P500,000, as damages, on the ground that said corporation, for its
own selfish purposes, unlawfully induced Teodorica Endencia to refrain from the performance of her
contract for the sale of the land in question and to withhold delivery to the plaintiff of the Torrens title,
and further, maliciously and without reasonable cause, maintained her in her defense to the action of
specific performance which was finally decided in favor of the plaintiff in this court. The cause of
action here stated is based on liability derived from the wrongful interference of the defendant in the
performance of the contract between the plaintiff and Teodorica Endencia; and the large damages
laid in the complaint were, according to the proof submitted by the plaintiff, incurred as a result of a
combination of circumstances of the following nature: In 1911, it appears, the plaintiff, as the owner
of the land which he had bought from Teodorica Endencia entered into a contract (Exhibit C) with S.
B. Wakefield, of San Francisco, for the sale and disposal of said lands to a sugar growing and milling
enterprise, the successful launching of which depended on the ability of Daywalt to get possession
of the land and the Torrens certificate of title. In order to accomplish this end, the plaintiff returned to
the Philippine Islands, communicated his arrangement to the defendant,, and made repeated efforts
to secure the registered title for delivery in compliance with said agreement with Wakefield.
Teodorica Endencia seems to have yielded her consent to the consummation of her contract, but the
Torrens title was then in the possession of Padre Juan Labarga in Manila, who refused to deliver the
document. Teodorica also was in the end contract with the plaintiff, with the result that the plaintiff
was kept out of possession until the Wakefield project for the establishment of a large sugar growing
and milling enterprise fell through. In the light of what has happened in recent years in the sugar
industry, we feel justified in saying that the project above referred to, if carried into effect, must
inevitably have proved a great success.

The determination of the issue presented in this second cause of action requires a consideration of
two points. The first is whether a person who is not a party to a contract for the sale of land makes
himself liable for damages to the vendee, beyond the value of the use and occupation, by colluding
with the vendor and maintaining him in the effort to resist an action for specific performance. The
second is whether the damages which the plaintiff seeks to recover under this head are too remote
and speculative to be the subject of recovery.

As preliminary to a consideration of the first of these questions, we deem it well it dispose of the
contention that the members of the defendants corporation, in advising and prompting Teodorica
Endencia not to comply with the contract of sale, were actuated by improper and malicious motives.
The trial court found that this contention was not sustained, observing that while it was true that the
circumstances pointed to an entire sympathy on the part of the defendant corporation with the efforts
of Teodorica Endencia to defeat the plaintiff's claim to the land, the fact that its officials may have
advised her not to carry the contract into effect would not constitute actionable interference with such
contract. It may be added that when one considers the hardship that the ultimate performance of that
contract entailed on the vendor, and the doubt in which the issue was involved — to the extent that
the decision of the Court of the First Instance was unfavorable to the plaintiff and the Supreme Court
itself was divided — the attitude of the defendant corporation, as exhibited in the conduct of
its procurador, Juan Labarga, and other members of the order of the Recollect Fathers, is not
difficult to understand. To our mind a fair conclusion on this feature of the case is that father Juan
Labarga and his associates believed in good faith that the contract cold not be enforced and that
Teodorica would be wronged if it should be carried into effect. Any advice or assistance which they
may have given was, therefore, prompted by no mean or improper motive. It is not, in our opinion, to
be denied that Teodorica would have surrendered the documents of title and given possession of the
land but for the influence and promptings of members of the defendants corporation. But we do not
credit the idea that they were in any degree influenced to the giving of such advice by the desire to
secure to themselves the paltry privilege of grazing their cattle upon the land in question to the
prejudice of the just rights of the plaintiff.

The attorney for the plaintiff maintains that, by interfering in the performance of the contract in
question and obstructing the plaintiff in his efforts to secure the certificate of tittle to the land, the
defendant corporation made itself a co-participant with Teodorica Endencia in the breach of said
contract; and inasmuch as father Juan Labarga, at the time of said unlawful intervention between the
contracting parties, was fully aware of the existence of the contract (Exhibit C) which the plaintiff had
made with S. B. Wakefield, of San Francisco, it is insisted that the defendant corporation is liable for
the loss consequent upon the failure of the project outlined in said contract.

In this connection reliance is placed by the plaintiff upon certain American and English decisions in
which it is held that a person who is a stranger to contract may, by an unjustifiable interference in the
performance thereof, render himself liable for the damages consequent upon non-performance. It is
said that the doctrine of these cases was recognized by this court in Gilchrist vs. Cuddy (29 Phil.
Rep., 542); and we have been earnestly pressed to extend the rule there enunciated to the situation
here presente.

Somewhat more than half a century ago the English Court of the Queen's Bench saw its way clear to
permit an action for damages to be maintained against a stranger to a contract wrongfully interfering
in its performance. The leading case on this subject is Lumley vs. Gye ([1853], 2 El. & Bl., 216). It
there appeared that the plaintiff, as manager of a theatre, had entered into a contract with Miss
Johanna Wagner, an opera singer,, whereby she bound herself for a period to sing in the plaintiff's
theatre and nowhere else. The defendant, knowing of the existence of this contract, and, as the
declaration alleged, "maliciously intending to injure the plaintiff," enticed and produced Miss Wagner
to leave the plaintiff's employment. It was held that the plaintiff was entitled to recover damages. The
right which was here recognized had its origin in a rule, long familiar to the courts of the common
law, to the effect that any person who entices a servant from his employment is liable in damages to
the master. The master's interest in the service rendered by his employee is here considered as a
distinct subject of juridical right. It being thus accepted that it is a legal wrong to break up a relation
of personal service, the question now arose whether it is illegal for one person to interfere with any
contract relation subsisting between others. Prior to the decision of Lumley vs. Gye [supra] it had
been supposed that the liability here under consideration was limited to the cases of the enticement
of menial servants, apprentices, and others to whom the English Statutes of Laborers were
applicable. But in the case cited the majority of the judges concurred in the opinion that the principle
extended to all cases of hiring. This doctrine was followed by the Court of Appeal in Bowen vs. Hall
([1881], 6 Q. B., Div., 333); and in Temperton vs.Russell ([1893], Q. B., 715), it was held that the
right of action for maliciously procuring a breach of contract is not confined to contracts for personal
services, but extends to contracts in general. In that case the contract which the defendant had
procured to be breached was a contract for the supply of building material.

Malice in some form is generally supposed to be an essential ingredient in cases of interference with
contract relations. But upon the authorities it is enough if the wrong-doer, having knowledge of the
existence of the contract relations, in bad faith sets about to break it up. Whether his motive is to
benefit himself or gratify his spite by working mischief to the employer is immaterial. Malice in the
sense of ill-will or spite is not essential.
Upon the question as to what constitutes legal justification, a good illustration was put in the leading
case. If a party enters into contract to go for another upon a journey to a remote and unhealthful
climate, and a third person, with a bona fide purpose of benefiting the one who is under contract to
go, dissuades him from the step, no action will lie. But if the advice is not disinterested and the
persuasion is used for "the indirect purpose of benefiting the defendant at the expense of the
plaintiff," the intermedler is liable if his advice is taken and the contract broken.

The doctrine embodied in the cases just cited has sometimes been found useful, in the complicated
relations of modern industry, as a means of restraining the activities of labor unions and industrial
societies when improperly engaged in the promotion of strikes. An illustration of the application of
the doctrine in question in a case of this kind is found in South Wales Miners
Federation vs. Glamorgan Coal Co. ([1905]), A. C., 239). It there appeared that certain miners
employed in the plaintiff's collieries, acting under the order of the executive council of the defendant
federation, violated their contract with the plaintiff by abstaining from work on certain days. The
federation and council acted without any actual malice or ill-will towards the plaintiff, and the only
object of the order in question was that the price of coal might thereby be kept up, a factor which
affected the miner's wage scale. It was held that no sufficient justification was shown and that the
federation was liable.

In the United States, the rule established in England by Lumley vs. Gye [supra] and subsequent
cases is commonly accepted, though in a few of the States the broad idea that a stranger to a
contract can be held liable upon its is rejected, and in these jurisdictions the doctrine, if accepted at
all, is limited to the situation where the contract is strictly for personal service. (Boyson vs. Thorn, 98
Cal., 578; Chambers & Marshall vs. Baldwin 91 Ky., 121; Bourlier vs. Macauley, 91 Ky., 135;
Glencoe Land & Gravel Co. vs. Hudson Bros. Com. Co., 138 Mo., 439.)

It should be observed in this connection that, according to the English and American authorities, no
question can be made as to the liability to one who interferes with a contract existing between others
by means which, under known legal cannons, can be denominated an unlawful means. Thus, if
performance is prevented by force, intimidation, coercion, or threats, or by false or defamatory
statements, or by nuisance or riot, the person using such unlawful means is, under all the
authorities, liable for the damage which ensues. And in jurisdictions where the doctrine of
Lumley vs. Gye [supra] is rejected, no liability can arise from a meddlesome and malicious
interference with a contract relation unless some such unlawful means as those just indicated are
used. (See cases last above cited.)

This brings us to the decision made by this court in Gilchrist vs. Cuddy (29 Phil. Rep., 542). It there
appeared that one Cuddy, the owner of a cinematographic film, let it under a rental contract to the
plaintiff Gilchrist for a specified period of time. In violation of the terms of this agreement, Cuddy
proceeded to turn over the film also under a rental contract, to the defendants Espejo and
Zaldarriaga. Gilchrist thereupon restored to the Court of First Instance and produced an injunction
restraining the defendants from exhibiting the film in question in their theater during the period
specified in the contract of Cuddy with Gilchrist. Upon appeal to this court it was in effect held that
the injunction was not improperly granted, although the defendants did not, at the time their contract
was made, know the identity of the plaintiff as the person holding the prior contract but did know of
the existence of a contract in favor of someone. It was also said arguendo, that the defendants
would have been liable in damages under article 1902 of the Civil Code, if the action had been
brought by the plaintiff to recover damages. The force of the opinion is, we think, somewhat
weakened by the criticism contain in the concurring opinion, where it is said that the question of
breach of contract by inducement was not really involved in the case. Taking the decision upon the
point which was rally decided, it is authority for the proposition that one who buys something which
he knows has been sold to some other person can be restrained from using that thing to the
prejudice of the person having the prior and better right.
Translated into terms applicable to the case at bar, the decision in Gilchrist vs. Cuddy (29 Phil. Rep.,
542), indicates that the defendant corporation, having notice of the sale of the land in question to
Daywalt, might have been enjoined by the latter from using the property for grazing its cattle thereon.
That the defendant corporation is also liable in this action for the damage resulting to the plaintiff
from the wrongful use and occupation of the property has also been already determined. But it will
be observed that in order to sustain this liability it is not necessary to resort to any subtle exegesis
relative to the liability of a stranger to a contract for unlawful interference in the performance thereof.
It is enough that defendant use the property with notice that the plaintiff had a prior and better right.

Article 1902 of the Civil Code declares that any person who by an act or omission, characterized by
fault or negligence, causes damage to another shall be liable for the damage so done. Ignoring so
much of this article as relates to liability for negligence, we take the rule to be that a person is liable
for damage done to another by any culpable act; and by "culpable act" we mean any act which is
blameworthy when judged by accepted legal standards. The idea thus expressed is undoubtedly
broad enough to include any rational conception of liability for the tortious acts likely to be developed
in any society. Thus considered, it cannot be said that the doctrine of Lumley vs. Gye [supra] and
related cases is repugnant to the principles of the civil law.

Nevertheless, it must be admitted that the codes and jurisprudence of the civil law furnish a
somewhat uncongenial field in which to propagate the idea that a stranger to a contract may sued for
the breach thereof. Article 1257 of the Civil Code declares that contracts are binding only between
the parties and their privies. In conformity with this it has been held that a stranger to a contract has
no right of action for the nonfulfillment of the contract except in the case especially contemplated in
the second paragraph of the same article. (Uy Tam and Uy Yet vs. Leonard, 30 Phil. Rep., 471.) As
observed by this court in Manila Railroad Co. vs. Compañia Transatlantica, R. G. No. 11318 (38
Phil. Rep., 875), a contract, when effectually entered into between certain parties, determines not
only the character and extent of the liability of the contracting parties but also the person or entity by
whom the obligation is exigible. The same idea should apparently be applicable with respect to the
person against whom the obligation of the contract may be enforced; for it is evident that there must
be a certain mutuality in the obligation, and if the stranger to a contract is not permitted to sue to
enforce it, he cannot consistently be held liable upon it.

If the two antagonistic ideas which we have just brought into juxtaposition are capable of
reconciliation, the process must be accomplished by distinguishing clearly between the right of
action arising from the improper interference with the contract by a stranger thereto, considered as
an independent act generate of civil liability, and the right of action ex contractu against a party to
the contract resulting from the breach thereof. However, we do not propose here to pursue the
matter further, inasmuch as, for reasons presently to be stated, we are of the opinion that neither the
doctrine of Lumley vs. Gye [supra] nor the application made of it by this court in Gilchrist vs. Cuddy
(29 Phil. Rep., 542), affords any basis for the recovery of the damages which the plaintiff is
supposed to have suffered by reason of his inability to comply with the terms of the Wakefield
contract.

Whatever may be the character of the liability which a stranger to a contract may incur by advising or
assisting one of the parties to evade performance, there is one proposition upon which all must
agree. This is, that the stranger cannot become more extensively liable in damages for the
nonperformance of the contract than the party in whose behalf he intermeddles. To hold the stranger
liable for damages in excess of those that could be recovered against the immediate party to the
contract would lead to results at once grotesque and unjust. In the case at bar, as Teodorica
Endencia was the party directly bound by the contract, it is obvious that the liability of the defendant
corporation, even admitting that it has made itself coparticipant in the breach of the contract, can in
no even exceed hers. This leads us to consider at this point the extent of the liability of Teodorica
Endencia to the plaintiff by reason of her failure to surrender the certificate of title and to place the
plaintiff in possession.

It should in the first place be noted that the liability of Teodorica Endencia for damages resulting
from the breach of her contract with Daywalt was a proper subject for adjudication in the action for
specific performance which Daywalt instituted against her in 1909 and which was litigated by him to
a successful conclusion in this court, but without obtaining any special adjudication with reference to
damages. Indemnification for damages resulting from the breach of a contract is a right inseparably
annexed to every action for the fulfillment of the obligation (art. 1124, Civil Code); and its is clear that
if damages are not sought or recovered in the action to enforce performance they cannot be
recovered in an independent action. As to Teodorica Endencia, therefore, it should be considered
that the right of action to recover damages for the breach of the contract in question was exhausted
in the prior suit. However, her attorneys have not seen fit to interpose the defense of res judicata in
her behalf; and as the defendant corporation was not a party to that action, and such defense could
not in any event be of any avail to it, we proceed to consider the question of the liability of Teodorica
Endencia for damages without refernce to this point.

The most that can be said with refernce to the conduct of Teodorica Endencia is that she refused to
carry out a contract for the sale of certain land and resisted to the last an action for specific
performance in court. The result was that the plaintiff was prevented during a period of several years
from exerting that control over the property which he was entitled to exert and was meanwhile
unable to dispose of the property advantageously. Now, what is the measure of damages for the
wrongful detention of real property by the vender after the time has come for him to place the
purchaser in possession?

The damages ordinarily and normally recoverable against a vendor for failure to deliver land which
he has contracted to deliver is the value of the use and occupation of the land for the time during
which it is wrongfully withheld. And of course where the purchaser has not paid the purchaser
money, a deduction may be made in respect to the interest on the money which constitutes the
purchase price. Substantially the same rule holds with respect to the liability of a landlord who fails to
put his tenant in possession pursuant to contract of lease. The measure of damages is the value of
the leasehold interest, or use and occupation, less the stipulated rent, where this has not been paid.
The rule that the measure of damages for the wrongful detention of land is normally to be found in
the value of use and occupation is, we believe, one of the things that may be considered certain in
the law (39 cyc., 1630; 24 Cyc., 1052 Sedgewick on Damages, Ninth ed., sec. 185.) — almost as
wellsettled, indeed, as the rule that the measure of damages for the wrongful detention of money is
to be found in the interest.

We recognize the possibility that more extensive damages may be recovered where, at the time of
the creation of the contractual obligation, the vendor, or lessor, is aware of the use to which the
purchaser or lessee desires to put the property which is the subject of the contract, and the contract
is made with the eyes of the vendor or lessor open to the possibility of the damage which may result
to the other party from his own failure to give possession. The case before us is not this character,
inasmuch as at the time when the rights of the parties under the contract were determined, nothing
was known to any to them about the San Francisco capitalist who would be willing to back the
project portrayed in Exhibit C.

The extent of the liability for the breach of a contract must be determined in the light of the situation
in existence at the time the contract is made; and the damages ordinarily recoverable are in all
events limited to such as might be reasonable are in all events limited to such as might be
reasonably foreseen in the light of the facts then known to the contracting parties. Where the
purchaser desires to protect himself, in the contingency of the failure of the vendor promptly to give
possession, from the possibility of incurring other damages than such as the incident to the normal
value of the use and occupation, he should cause to be inserted in the contract a clause providing
for stipulated amount to the paid upon failure of the vendor to give possession; and not case has
been called to our attention where, in the absence of such a stipulation, damages have been held to
be recoverable by the purchaser in excess of the normal value of use and occupation. On the
contrary, the most fundamental conceptions of the law relative to the assessment of damages are
inconsistent with such idea.

The principles governing this branch of the law were profoundly considered in the case
Hadley vs. Baxendale (9 Exch., 341), decided in the English Court of Exchequer in 1854; and a few
words relative to the principles governing will here be found instructive. The decision in that case is
considered a leading authority in the jurisprudence of the common law. The plaintiffs in that case
were proprietors of a mill in Gloucester, which was propelled by steam, and which was engaged in
grinding and supplying meal and flour to customers. The shaft of the engine got broken, and it
became necessarily that the broken shaft be sent to an engineer or foundry man at Greenwich, to
serve as a model for casting or manufacturing another that would fit into the machinery. The broken
shaft could be delivered at Greenwich on the second day after its receipts by the carrier it. It was
delivered to the defendants, who were common carriers engaged in that business between these
points, and who had told plaintiffs it would be delivered at Greenwich on the second day after its
delivery to them, if delivered at a given hour. The carriers were informed that the mill was stopped,
but were not informed of the special purpose for which the broken shaft was desired to forwarded,
They were not told the mill would remain idle until the new shaft would be returned, or that the new
shaft could not be manufactured at Greenwich until the broken one arrived to serve as a model.
There was delay beyond the two days in delivering the broken shaft at Greenwich, and a
corresponding delay in starting the mill. No explanation of the delay was offered by the carriers. The
suit was brought to recover damages for the lost profits of the mill, cause by the delay in delivering
the broken shaft. It was held that the plaintiff could not recover.

The discussion contained in the opinion of the court in that case leads to the conclusion that the
damages recoverable in case of the breach of a contract are two sorts, namely, (1) the ordinary,
natural, and in a sense necessary damage; and (2) special damages.

Ordinary damages is found in all breaches of contract where the are no special circumstances to
distinguish the case specially from other contracts. The consideration paid for an unperformed
promise is an instance of this sort of damage. In all such cases the damages recoverable are such
as naturally and generally would result from such a breach, "according to the usual course of things."
In case involving only ordinary damage no discussion is ever indulged as to whether that damage
was contemplated or not. This is conclusively presumed from the immediateness and inevitableness
of the damage, and the recovery of such damage follows as a necessary legal consequence of the
breach. Ordinary damage is assumed as a matter of law to be within the contemplation of the
parties.

Special damage, on the other hand, is such as follows less directly from the breach than ordinary
damage. It is only found in case where some external condition, apart from the actual terms to the
contract exists or intervenes, as it were, to give a turn to affairs and to increase damage in a way
that the promisor, without actual notice of that external condition, could not reasonably be expected
to foresee. Concerning this sort of damage, Hadley vs.Baxendale (1854) [supra] lays down the
definite and just rule that before such damage can be recovered the plaintiff must show that the
particular condition which made the damage a possible and likely consequence of the breach was
known to the defendant at the time the contract was made.
The statement that special damages may be recovered where the likelihood of such damages
flowing from the breach of the contract is contemplated and foreseen by the parties needs to be
supplemented by a proposition which, though not enunciated in Hadley vs. Baxendale, is yet clearly
to be drawn from subsequent cases. This is that where the damage which a plaintiff seeks to recover
as special damage is so far speculative as to be in contemplation of law remote, notification of the
special conditions which make that damage possible cannot render the defendant liable therefor. To
bring damages which would ordinarily be treated as remote within the category of recoverable
special damages, it is necessary that the condition should be made the subject of contract in such
sense as to become an express or implied term of the engagement. Horne vs. Midland R. Co. (L. R.,
8 C. P., 131) is a case where the damage which was sought to be recovered as special damage was
really remote, and some of the judges rightly places the disallowance of the damage on the ground
that to make such damage recoverable, it must so far have been within the contemplation of the
parties as to form at least an implied term of the contract. But others proceeded on the idea that the
notice given to the defendant was not sufficiently full and definite. The result was the same in either
view. The facts in that case were as follows: The plaintiffs, shoe manufacturers at K, were under
contract to supply by a certain day shoes to a firm in London for the French government. They
delivered the shoes to a carrier in sufficient time for the goods to reach London at the time stipulated
in the contract and informed the railroad agent that the shoes would be thrown back upon their
hands if they did not reach the destination in time. The defendants negligently failed to forward the
good in due season. The sale was therefore lost, and the market having fallen, the plaintiffs had to
sell at a loss.

In the preceding discussion we have considered the plaintiff's right chiefly against Teodorica
Endencia; and what has been said suffices in our opinion to demonstrate that the damages laid
under the second cause of action in the complaint could not be recovered from her, first, because
the damages laid under the second cause of action in the complaint could not be recovered from
her, first, because the damages in question are special damages which were not within
contemplation of the parties when the contract was made, and secondly, because said damages are
too remote to be the subject of recovery. This conclusion is also necessarily fatal to the right of the
plaintiff to recover such damages from the defendant corporation, for, as already suggested, by
advising Teodorica not to perform the contract, said corporation could in no event render itself more
extensively liable than the principle in the contract.

Our conclusion is that the judgment of the trial court should be affirmed, and it is so ordered, with
costs against the appellant.

G.R. No. L-12219 March 15, 1918

AMADO PICART, plaintiff-appellant,

vs.
FRANK SMITH, JR., defendant-appellee.

Alejo Mabanag for appellant.

G. E. Campbell for appellee.

STREET, J.:

In this action the plaintiff, Amado Picart, seeks to recover of the defendant, Frank Smith, jr., the sum
of P31,000, as damages alleged to have been caused by an automobile driven by the defendant.
From a judgment of the Court of First Instance of the Province of La Union absolving the defendant
from liability the plaintiff has appealed.
The occurrence which gave rise to the institution of this action took place on December 12, 1912, on
the Carlatan Bridge, at San Fernando, La Union. It appears that upon the occasion in question the
plaintiff was riding on his pony over said bridge. Before he had gotten half way across, the defendant
approached from the opposite direction in an automobile, going at the rate of about ten or twelve
miles per hour. As the defendant neared the bridge he saw a horseman on it and blew his horn to
give warning of his approach. He continued his course and after he had taken the bridge he gave
two more successive blasts, as it appeared to him that the man on horseback before him was not
observing the rule of the road.

The plaintiff, it appears, saw the automobile coming and heard the warning signals. However, being
perturbed by the novelty of the apparition or the rapidity of the approach, he pulled the pony closely
up against the railing on the right side of the bridge instead of going to the left. He says that the
reason he did this was that he thought he did not have sufficient time to get over to the other side.
The bridge is shown to have a length of about 75 meters and a width of 4.80 meters. As the
automobile approached, the defendant guided it toward his left, that being the proper side of the
road for the machine. In so doing the defendant assumed that the horseman would move to the
other side. The pony had not as yet exhibited fright, and the rider had made no sign for the
automobile to stop. Seeing that the pony was apparently quiet, the defendant, instead of veering to
the right while yet some distance away or slowing down, continued to approach directly toward the
horse without diminution of speed. When he had gotten quite near, there being then no possibility of
the horse getting across to the other side, the defendant quickly turned his car sufficiently to the right
to escape hitting the horse alongside of the railing where it as then standing; but in so doing the
automobile passed in such close proximity to the animal that it became frightened and turned its
body across the bridge with its head toward the railing. In so doing, it as struck on the hock of the left
hind leg by the flange of the car and the limb was broken. The horse fell and its rider was thrown off
with some violence. From the evidence adduced in the case we believe that when the accident
occurred the free space where the pony stood between the automobile and the railing of the bridge
was probably less than one and one half meters. As a result of its injuries the horse died. The
plaintiff received contusions which caused temporary unconsciousness and required medical
attention for several days.

The question presented for decision is whether or not the defendant in maneuvering his car in the
manner above described was guilty of negligence such as gives rise to a civil obligation to repair the
damage done; and we are of the opinion that he is so liable. As the defendant started across the
bridge, he had the right to assume that the horse and the rider would pass over to the proper side;
but as he moved toward the center of the bridge it was demonstrated to his eyes that this would not
be done; and he must in a moment have perceived that it was too late for the horse to cross with
safety in front of the moving vehicle. In the nature of things this change of situation occurred while
the automobile was yet some distance away; and from this moment it was not longer within the
power of the plaintiff to escape being run down by going to a place of greater safety. The control of
the situation had then passed entirely to the defendant; and it was his duty either to bring his car to
an immediate stop or, seeing that there were no other persons on the bridge, to take the other side
and pass sufficiently far away from the horse to avoid the danger of collision. Instead of doing this,
the defendant ran straight on until he was almost upon the horse. He was, we think, deceived into
doing this by the fact that the horse had not yet exhibited fright. But in view of the known nature of
horses, there was an appreciable risk that, if the animal in question was unacquainted with
automobiles, he might get exited and jump under the conditions which here confronted him. When
the defendant exposed the horse and rider to this danger he was, in our opinion, negligent in the eye
of the law.

The test by which to determine the existence of negligence in a particular case may be stated as
follows: Did the defendant in doing the alleged negligent act use that person would have used in the
same situation? If not, then he is guilty of negligence. The law here in effect adopts the standard
supposed to be supplied by the imaginary conduct of the discreet paterfamilias of the Roman law.
The existence of negligence in a given case is not determined by reference to the personal judgment
of the actor in the situation before him. The law considers what would be reckless, blameworthy, or
negligent in the man of ordinary intelligence and prudence and determines liability by that.

The question as to what would constitute the conduct of a prudent man in a given situation must of
course be always determined in the light of human experience and in view of the facts involved in
the particular case. Abstract speculations cannot here be of much value but this much can be
profitably said: Reasonable men govern their conduct by the circumstances which are before them
or known to them. They are not, and are not supposed to be, omniscient of the future. Hence they
can be expected to take care only when there is something before them to suggest or warn of
danger. Could a prudent man, in the case under consideration, foresee harm as a result of the
course actually pursued? If so, it was the duty of the actor to take precautions to guard against that
harm. Reasonable foresight of harm, followed by ignoring of the suggestion born of this prevision, is
always necessary before negligence can be held to exist. Stated in these terms, the proper criterion
for determining the existence of negligence in a given case is this: Conduct is said to be negligent
when a prudent man in the position of the tortfeasor would have foreseen that an effect harmful to
another was sufficiently probable to warrant his foregoing conduct or guarding against its
consequences.

Applying this test to the conduct of the defendant in the present case we think that negligence is
clearly established. A prudent man, placed in the position of the defendant, would in our opinion,
have recognized that the course which he was pursuing was fraught with risk, and would therefore
have foreseen harm to the horse and the rider as reasonable consequence of that course. Under
these circumstances the law imposed on the defendant the duty to guard against the threatened
harm.

It goes without saying that the plaintiff himself was not free from fault, for he was guilty of antecedent
negligence in planting himself on 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 the person who has
the last fair 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.

The decision in the case of Rkes vs. Atlantic, Gulf and Pacific Co. (7 Phil. Rep., 359) should perhaps
be mentioned in this connection. This Court there held that while contributory negligence on the part
of the person injured did not constitute a bar to recovery, it could be received in evidence to reduce
the damages which would otherwise have been assessed wholly against the other party. The
defendant company had there employed the plaintiff, as a laborer, to assist in transporting iron rails
from a barge in Manila harbor to the company's yards located not far away. The rails were conveyed
upon cars which were hauled along a narrow track. At certain spot near the water's edge the track
gave way by reason of the combined effect of the weight of the car and the insecurity of the road
bed. The car was in consequence upset; the rails slid off; and the plaintiff's leg was caught and
broken. It appeared in evidence that the accident was due to the effects of the typhoon which had
dislodged one of the supports of the track. The court found that the defendant company was
negligent in having failed to repair the bed of the track and also that the plaintiff was, at the moment
of the accident, guilty of contributory negligence in walking at the side of the car instead of being in
front or behind. It was held that while the defendant was liable to the plaintiff by reason of its
negligence in having failed to keep the track in proper repair nevertheless the amount of the
damages should be reduced on account of the contributory negligence in the plaintiff. As will be
seen the defendant's negligence in that case consisted in an omission only. The liability of the
company arose from its responsibility for the dangerous condition of its track. In a case like the one
now before us, where the defendant was actually present and operating the automobile which
caused the damage, we do not feel constrained to attempt to weigh the negligence of the respective
parties in order to apportion the damage according to the degree of their relative fault. It is enough to
say that the negligence of the defendant was in this case the immediate and determining cause of
the accident and that the antecedent negligence of the plaintiff was a more remote factor in the case.

A point of minor importance in the case is indicated in the special defense pleaded in the defendant's
answer, to the effect that the subject matter of the action had been previously adjudicated in the
court of a justice of the peace. In this connection it appears that soon after the accident in question
occurred, the plaintiff caused criminal proceedings to be instituted before a justice of the peace
charging the defendant with the infliction of serious injuries (lesiones graves). At the preliminary
investigation the defendant was discharged by the magistrate and the proceedings were dismissed.
Conceding that the acquittal of the defendant at the trial upon the merits in a criminal prosecution for
the offense mentioned would be res adjudicata upon the question of his civil liability arising from
negligence -- a point upon which it is unnecessary to express an opinion -- the action of the justice of
the peace in dismissing the criminal proceeding upon the preliminary hearing can have no effect.
(See U. S. vs. Banzuela and Banzuela, 31 Phil. Rep., 564.)

From what has been said it results that the judgment of the lower court must be reversed, and
judgment is her rendered that the plaintiff recover of the defendant the sum of two hundred pesos
(P200), with costs of other instances. The sum here awarded is estimated to include the value of the
horse, medical expenses of the plaintiff, the loss or damage occasioned to articles of his apparel,
and lawful interest on the whole to the date of this recovery. The other damages claimed by the
plaintiff are remote or otherwise of such character as not to be recoverable. So ordered.

G.R. No. L-40570 January 30, 1976

TEODORO C. UMALI, petitioner,

vs.
HON. ANGEL BACANI, in his capacity as Presiding Judge of Branch IX of the Court of First
Instance of Pangasinan and FIDEL H. SAYNES, respondents.

Julia M. Armas for petitioner.

Antonio de los Reyes for private respondent.

ESGUERRA, J.:

Petition for certiorari to review the decision of the Court of First Instance of Pangasinan Branch IX, in
Civil Case No. U2412, entitled, "Fidel H. Saynes, plaintiff-appellee versus Teodoro C. Umali,
defendant-appellant", which found the death by electrocution of Manuel Saynes, a boy of 3 years
and 8 months, as "due to the fault or negligence of the defendant (Umali) as owner and manager of
the Alcala Electric Plant", although the liability of defendant is mitigated by the contributory
negligence of the parents of the boy "in not providing for the proper and delegate supervision and
control over their son The dispositive part of the decision reads as follows:

Wherefore, the Court hereby renders judgment in favor of the plaintiff by ordering the
defendant to pay to the plaintiff the sum of Five Thousand Pesos (P5,000.00) for the
 death of his son, Manuel Saynes; the sum of One Thousand Two Hundred Pesos
(P1,200.00) for actual expenses for and in connection with the burial of said
deceased child, and the further sum of Three Thousand Pesos (P3,000.00) for moral
damages and Five Hundred (P500.00) Pesos as reasonable attorney's fee, or a total
of Nine Thousand Seven Hundred (P9,700.00) Pesos, and to pay the costs of this
suit. It Is So Ordered.

Undisputed facts appearing of record are:

On May 14, 1972, a storm with strong rain hit the Municipality of Alcala Pangasinan,
which started from 2:00 o'clock in the afternoon and lasted up to about midnight of
the same day. During the storm, the banana plants standing on an elevated ground
along the barrio road in San Pedro Ili of said municipality and near the transmission
line of the Alcala Electric Plant were blown down and fell on the electric wire. As a
result, the live electric wire was cut, one end of which was left hanging on the electric
post and the other fell to the ground under the fallen banana plants.

On the following morning, at about 9:00 o'clock barrio captain Luciano Bueno of San
Pedro Iii who was passing by saw the broken electric wire and so he warned the
people in the place not to go near the wire for they might get hurt. He also saw
Cipriano Baldomero, a laborer of the Alcala Electric Plant near the place and notified
him right then and there of the broken line and asked him to fix it, but the latter told
the barrio captain that he could not do it but that he was going to look for the lineman
to fix it.

Sometime after the barrio captain and Cipriano Baldomero had left the place, a small
boy of 3 years and 8 months old by the name of Manuel P. Saynes, whose house is
just on the opposite side of the road, went to the place where the broken line wire
was and got in contact with it. The boy was electrocuted and he subsequently died. It
was only after the electrocution of Manuel Saynes that the broken wire was fixed at
about 10:00 o'clock on the same morning by the lineman of the electric plant.

Petitioner claims that he could not be liable under the concept of quasi-delict or tort as owner and
manager of the Alcala Electric Plant because the proximate cause of the boy's death electrocution
could not be due to any negligence on his part, but rather to a fortuitous event-the storm that caused
the banana plants to fall and cut the electric line-pointing out the absence of negligence on the part
of his employee Cipriano Baldomero who tried to have the line repaired and the presence of
negligence of the parents of the child in allowing him to leave his house during that time.

A careful examination of the record convinces Us that a series of negligence on the part of
defendants' employees in the Alcala Electric Plant resulted in the death of the victim by
electrocution. First, by the very evidence of the defendant, there were big and tall banana plants at
the place of the incident standing on an elevated ground which were about 30 feet high and which
were higher than the electric post supporting the electric line, and yet the employees of the
defendant who, with ordinary foresight, could have easily seen that even in case of moderate winds
the electric line would be endangered by banana plants being blown down, did not even take the
necessary precaution to eliminate that source of danger to the electric line. Second, even after the
employees of the Alcala Electric Plant were already aware of the possible damage the storm of May
14, 1972, could have caused their electric lines, thus becoming a possible threat to life and property,
they did not cut off from the plant the flow of electricity along the lines, an act they could have easily
done pending inspection of the wires to see if they had been cut. Third, employee Cipriano
Baldomero was negligent on the morning of the incident because even if he was already made
aware of the live cut wire, he did not have the foresight to realize that the same posed a danger to
life and property, and that he should have taken the necessary precaution to prevent anybody from
approaching the live wire; instead Baldomero left the premises because what was foremost in his
mind was the repair of the line, obviously forgetting that if left unattended to it could endanger life
and property.

On defendants' argument that the proximate cause of the victim's death could be attributed to the
parents' negligence in allowing a child of tender age to go out of the house alone, We could readily
see that because of the aforementioned series of negligence on the part of defendants' employees
resulting in a live wire lying on the premises without any visible warning of its lethal character,
anybody, even a responsible grown up or not necessarily an innocent child, could have met the
same fate that befell the victim. It may be true, as the lower Court found out, that the contributory
negligence of the victim's parents in not properly taking care of the child, which enabled him to leave
the house alone on the morning of the incident and go to a nearby place cut wire was very near the
house (where victim was living) where the fatal fallen wire electrocuted him, might mitigate
respondent's liability, but we cannot agree with petitioner's theory that the parents' negligence
constituted the proximate cause of the victim's death because the real proximate cause was the
fallen live wire which posed a threat to life and property on that morning due to the series of
negligence adverted to above committed by defendants' employees and which could have killed any
other person who might by accident get into contact with it. Stated otherwise, even if the child was
allowed to leave the house unattended due to the parents' negligence, he would not have died that
morning where it not for the cut live wire he accidentally touched.

Art. 2179 of the Civil Code provides that if the negligence of the plaintiff (parents of the victim in this
case) was only contributory, the immediate and proximate cause of the injury being the defendants'
lack of due care, the plaintiff may recover damages, but the courts shall mitigate the damages to be
awarded. This law may be availed of by the petitioner but does not exempt him from liability.
Petitioner's liability for injury caused by his employees negligence is well defined in par. 4, of Article
2180 of the Civil Code, which states:

The owner and manager 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 tile occasion of their functions.

The negligence of the employee is presumed to be the negligence of the employer because the
employer is supposed to exercise supervision over the work of the employees. This liability of the
employer is primary and direct (Standard Vacuum Oil Co. vs. Tan and Court of Appeals, 107 Phil.
109). In fact the proper defense for the employer to raise so that he may escape liability is to prove
that he exercised, the diligence of the good father of the family to prevent damage not only in the
selection of his employees but also in adequately supervising them over their work. This defense
was not adequately proven as found by the trial Court, and We do not find any sufficient reason to
deviate from its finding.

Notwithstanding diligent efforts, we fail to fired any reversible error committed by the trial Court in
this case, either in its appreciation of the evidence on questions of facts or on the interpretation and
application of laws government quasi-delicts and liabilities emanating therefrom. The inevitable
conclusion is that no error amounting to grave abuse of discretion was committed and the decision
must be left untouched.

WHEREFORE, the decision of respondent Court dated June 27, 1974 is affirmed.

Costs against petitioner.

SO ORDERED.

G.R. No. 1719 January 23, 1907

M. H., RAKES, plaintiff-appellee,

vs.
THE ATLANTIC, GULF AND PACIFIC COMPANY, defendant-appellant.

A. D. Gibbs for appellant.

F. G. Waite, & Thimas Kepner for appellee.

TRACEY, J.:

This is an action for damages. The plaintiff, one of a gang of eight negro laborers in the employment
of the defendant, was at work transporting iron rails from a barge in the harbor to the company's yard
near the malecon in Manila. Plaintiff claims that but one hand car was used in this work. The
defendant has proved that there were two immediately following one another, upon which were piled
lengthwise seven rails, each weighing 560 pounds, so that the ends of the rails lay upon two
crosspieces or sills secured to the cars, but without side pieces or guards to prevent them from
slipping off. According to the testimony of the plaintiff, the men were either in the rear of the car or at
its sides. According to that defendant, some of them were also in front, hauling by a rope. At a
certain spot at or near the water's edge the track sagged, the tie broke, the car either canted or
upset, the rails slid off and caught the plaintiff, breaking his leg, which was afterwards amputated at
about the knee.

This first point for the plaintiff to establish was that the accident happened through the negligence of
the defendant. The detailed description by the defendant's witnesses of the construction and quality
of the track proves that if was up to the general stranded of tramways of that character, the
foundation consisting on land of blocks or crosspieces of wood, by 8 inches thick and from 8 to 10
feet long laid, on the surface of the ground, upon which at a right angle rested stringers of the same
thickness, but from 24 to 30 feet in length. On the across the stringers the parallel with the blocks
were the ties to which the tracks were fastened. After the road reached the water's edge, the blocks
or crosspieces were replaced with pilling, capped by timbers extending from one side to the other.
The tracks were each about 2 feet wide and the two inside rails of the parallel tracks about 18 inches
apart. It was admitted that there were no side pieces or guards on the car; that where no ends of the
rails of the track met each other and also where the stringers joined, there were no fish plates. the
defendant has not effectually overcome the plaintiff's proof that the joints between the rails were
immediately above the joints between the underlying stringers.

The cause of the sagging of the tracks and the breaking of the tie, which was the immediate
occasion of the accident, is not clear in the evidence, but is found by the trial court and is admitted in
the briefs and in the argument to have been the dislodging of the crosspiece or piling under the
stringer by the water of the bay raised by a recent typhoon. The superintendent of the company
attributed it to the giving way of the block laid in the sand. No effort was made to repair the injury at
the time of the occurrence. According to plaintiffs witnesses, a depression of the track, varying from
one half inch to one inch and a half, was therafter apparent to the eye, and a fellow workman of the
plaintiff swears that the day before the accident he called the attention of McKenna, the foreman, to
it and asked by simply straightening out the crosspiece, resetting the block under the stringer and
renewing the tie, but otherwise leaving the very same timbers as before. It has not proven that the
company inspected the track after the typhoon or had any proper system of inspection.
In order to charge the defendant with negligence, it was necessary to show a breach of duty on its
part in failing either to properly secure the load on iron to vehicles transporting it, or to skillfully build
the tramway or to maintain it in proper condition, or to vigilantly inspect and repair the roadway as
soon as the depression in it became visible. It is upon the failure of the defendant to repair the
weakened track, after notice of its condition, that the judge below based his judgment.

This case presents many important matters for our decision, and first among them is the standard of
duty which we shall establish in our jurisprudence on the part of employees toward employees.

The lack or the harshness of legal rules on this subject has led many countries to enact designed to
put these relations on a fair basis in the form of compensation or liability laws or the institution of
insurance. In the absence of special legislation we find no difficulty in so applying the general
principles of our law as to work out a just result.

Article 1092 of the Civil Code provides:

Civil obligations, arising from crimes or misdemeanors, shall be governed by the provisions
of the Penal Code.

And article 568 of the latter code provides:

He who shall execute through reckless negligence an act that if done with malice would
constitute a grave crime, shall be punished.

And article 590 provides that the following shall be punished:

4. Those who by simple imprudence or negligence, without committing any infraction of

regulations, shall cause an injury which, had malice intervened, would have constituted a
crime or misdemeanor.

And finally by articles 19 and 20, the liability of owners and employers for the faults of their servants
and representatives is declared to be civil and subsidiary in its character.

It is contented 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 tract, and on his prosecution a
suitable fine should have been imposed, payable primarily by him and secondarily by his employer.

This reasoning misconceived the plan of the Spanish codes upon this subject. Article 1093 of the
Civil Code makes obligations arising from faults or negligence not punished by the law, subject to
the provisions of Chapter 11 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 preceding 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 damages.

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 law " 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
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 n ever 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 by 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 citations 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 by law. Where an individual is civilly liable for a
negligent act or omission, it is not required that the inured 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 process of prosecution, or in
so far as they determinate 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
election of the injured person. Inasmuch as no criminal 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 survived the laws that fully regulated it or has been
abrogated by the American civil and criminal procedure now in force in the Philippines.

The difficulty in construing the articles of the code above cited in this case appears from the briefs
before us to have arisen from the interpretation of the words of article 1093, "fault or negligence not
punished by law," as applied to the comprehensive definition of offenses in articles 568 and 590 of
the Penal Code. It has been shown that the liability of an employer arising out of his relation to his
employee who is the offender is not to be regarded as derived from negligence punished by the law,
within the meaning of articles 1092 and 1093. More than this, however, it can not be said to fall
within the class of acts unpunished by the law, the consequences 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 and growing out of preexisting duties of the parties to one another. But were 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 the 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 that injured
bystander would originate in the negligent act itself. This distinction is thus clearly set forth by
Manresa in his commentary on article 1093.

We are with reference to such obligations, that culpa, or negligence, may be understood in
two difference senses; either as culpa, substantive and independent, which on account of its
origin arises in an obligation between two persons not formerly bound by any other
obligation; or as an incident in the performance of an obligation; or as already existed, which
can not be presumed to exist without the other, and which increases the liability arising from
the already exiting obligation.

Of these two species of culpa the first one mentioned, existing by itself, may be also
considered as a real source of an independent obligation, and, as chapter 2, title 16 of this
book of the code is devoted to it, it is logical to presume that the reference contained in
article 1093 is limited thereto and that it does not extend to those provisions relating to the
other species of culpa (negligence), the nature of which we will discuss later. (Vol. 8, p. 29.)

And in his commentary on articles 1102 and 1104 he says that these two species of negligence may
be somewhat inexactly described as contractual and extra-contractual, the letter being the culpa
aquiliana of the Roman law and not entailing so strict an obligation as the former. This terminology is
unreservedly accepted by Sanchez-Roman (Derecho Civil, fourth section, Chapter XI, Article II, No.
12), and the principle stated is supported be decisions of the supreme court of Spain, among them
those of November 20, 1896 (80 Jurisprudencia Civil, No. 151), and June 27, 1894 (75
Jurisprudencia Civil, No. 182). The contract is one for hire and not one of mandate. (March 10, 1897,
81 Jurisprudencia Civil, No. 107.)

Spanish Jurisprudencia prior to the adoption of the Working Men's Accident Law of January 30,
1900, throws uncertain light on the relation between master and workman. Moved by the quick
industrial development of their people, the courts of France early applied to the subject the principles
common to the law of both countries, which are lucidly discussed by the leading French
commentators.

The original French theory, resting the responsibility of owners of industrial enterprises upon articles
1382, 1383, and 1384 of the Code Napoleon, corresponding in scope to articles 1902 and 1903 of
the Spanish Code, soon yielded to the principle that the true basis is the contractual obligation of the
employer and employee. (See 18 Dalloz, 196, Title Travail, 331.)

Later the hardships resulting from special exemptions inserted in contracts for employment led to the
discovery of a third basis for liability in an article of he French Code making the possessor of any
object answerable for damage done by it while in his charge. Our law having no counterpart of this
article, applicable to every kind of object, we need consider neither the theory growing out of it nor
that of "professional risk" more recently imposed by express legislation, but rather adopting the
interpretation of our Civil Code above given, find a rule for this case in the contractual obligation.
This contractual obligation, implied from the relation and perhaps so inherent in its nature to be
invariable by the parties, binds the employer to provide safe appliances for the use of the employee,
thus closely corresponding to English and American Law. On these principles it was the duty of the
defendant to build and to maintain its track in reasonably sound condition, so as to protect its
workingmen from unnecessary danger. It is plain that in one respect or the other it failed in its duty,
otherwise the accident could not have occurred; consequently the negligence of the defendant is
established.

Another contention of the defense is that the injury resulted to the plaintiff as a risk incident to his
employment and, as such, one assumed by him. It is evident that this can not be the case if the
occurrence was due to the failure to repair the track or to duly inspect, it for the employee is not
presumed to have stipulated that the employer might neglect his legal duty. Nor may it be excused
upon the ground that the negligence leading to the accident was that of a fellow-servant of the
injured man. It is not apparent to us that the intervention of a third person can relieve the defendant
from the performance of its duty nor impose upon the plaintiff the consequences of an act or
omission not his own. Sua cuique culpa nocet. This doctrine, known as "the fellow-servant, rule," we
are not disposed to introduce into our jurisprudence. Adopted in England by Lord Abinger in the case
of Prescott vs. Fowler (3 Meeson & Welsby, 1) in 1837, it has since been effectually abrogated by
"the Employers' Liability Acts" and the "Compensation Law." The American States which applied it
appear to be gradually getting rid of it; for instance, the New York State legislature of 1906 did away
with it in respect to railroad companies, and had in hand a scheme for its total abolition. It has never
found place in the civil law of continental Europe. (Dalloz, vol. 39, 1858, Title Responsibilite, 630,
and vol. 15, 1895, same title, 804. Also more recent instances in Fuzier-Herman, Title Responsibilite
Civile, 710.)

The French Cour de Cassation clearly laid down the contrary principle in its judgment of June 28,
1841, in the case of Reygasse, and has since adhered to it.

The most controverted question in the case is that of the negligence of the plaintiff, contributing to
the accident, to what extent it existed in fact and what legal effect is to be given it. In two particulars
is he charged with carelessness:

First. That having noticed the depression in the track he continued his work; and

Second. That he walked on the ends of the ties at the side of the car instead of along the boards,
either before or behind it.

As to the first point, the depression in the track night indicate either a serious or a rival difficulty.
There is nothing in the evidence to show that the plaintiff did or could see the displaced timber
underneath the sleeper. The claim that he must have done so is a conclusion drawn from what is
assumed to have been a probable condition of things not before us, rather than a fair inference from
the testimony. While the method of construction may have been known to the men who had helped
build the road, it was otherwise with the plaintiff who had worked at this job less than two days. A
man may easily walk along a railway without perceiving a displacement of the underlying timbers.
The foreman testified that he knew the state of the track on the day of the accident and that it was
then in good condition, and one Danridge, a witness for the defendant, working on the same job,
swore that he never noticed the depression in the track and never saw any bad place in it. The
sagging of the track this plaintiff did perceive, but that was reported in his hearing to the foreman
who neither promised nor refused to repair it. His lack of caution in continuing at his work after
noticing the slight depression of the rail was not of so gross a nature as to constitute negligence,
barring his recovery under the severe American rule. On this point we accept the conclusion of the
trial judge who found as facts that "the plaintiff did not know the cause of the one rail being lower
than then other" and "it does not appear in this case that the plaintiff knew before the accident
occurred that the stringers and rails joined in the same place."

Were we not disposed to agree with these findings they would, nevertheless, be binding upon us,
because not "plainly and manifestly against the weight of evidence," as those words of section 497,
paragraph 3 of the Code of Civil Procedure were interpreted by the Supreme Court of the United
States in the De la Rama case (201 U. S., 303).

In respect of the second charge of negligence against the plaintiff, the judgment below is not so
specific. While the judge remarks that the evidence does not justify the finding that the car was
pulled by means of a rope attached to the front end or to the rails upon it, and further that the
circumstances in evidence make it clear that the persons necessary to operate the car could not
walk upon the plank between the rails and that, therefore, it was necessary for the employees
moving it to get hold upon it as best they could, there is no specific finding upon the instruction given
by the defendant to its employees to walk only upon the planks, nor upon the necessity of the
plaintiff putting himself upon the ties at the side in order to get hold upon the car. Therefore the
findings of the judge below leave the conduct of the plaintiff in walking along the side of the loaded
car, upon the open ties, over the depressed track, free to our inquiry.

While the plaintiff and his witnesses swear that not only were they not forbidden to proceed in this
way, but were expressly directed by the foreman to do so, both the officers of the company and
three of the workmen testify that there was a general prohibition frequently made known to all the
gang against walking by the side of the car, and the foreman swears that he repeated the prohibition
before the starting of this particular load. On this contradiction of proof we think that the
preponderance is in favor of the defendant's contention to the extent of the general order being
made known to the workmen. If so, the disobedience of the plaintiff in placing himself in danger
contributed in some degree to the injury as a proximate, although not as its primary cause. This
conclusion presents sharply the question, What effect is to be given such an act of contributory
negligence? Does it defeat a recovery, according to the American rule, or is it to be taken only in
reduction of damages?

While a few of the American States have adopted to a greater or less extent the doctrine of
comparative negligence, allowing a recovery by a plaintiff whose own act contributed to his injury,
provided his negligence was slight as compared with that of the defendant, and some others have
accepted the theory of proportional damages, reducing the award to a plaintiff in proportion to his
responsibility for the accident, yet the overwhelming weight of adjudication establishes the principle
in American jurisprudence that any negligence, however slight, on the part of the person injured
which is one of the causes proximately contributing to his injury, bars his recovery. (English and
American Encyclopedia of law, Titles "Comparative Negligence" and Contributory Negligence.")

In Grant Trunk Railway Company vs. Ives (144 U. S., 408, at page 429) the Supreme Court of the
United States thus authoritatively states the present rule of law:

Although the defendant's' negligence may have been the primary cause of the injury
complained of, yet an action for such injury can not be maintained if the proximate and
immediate cause of the injury can be traced to the want of ordinary care and caution in the
person injured; subject to this qualification, which has grown up in recent years (having been
first enunciated in Davies vs. Mann, 10 M. & W., 546) that the contributory negligence of the
party injured will not defeat the action if it be shown that the defendant might, by the exercise
 of reasonable care and prudence, have avoided the consequences of the injured party's
negligence.

There are may cases in the supreme court of Spain in which the defendant was exonerated, but
when analyzed they prove to have been decided either upon the point that he was not negligent or
that the negligence of the plaintiff was the immediate cause of the casualty or that the accident was
due to casus fortuitus. Of the first class in the decision of January 26, 1887 (38 Jurisprudencia
Criminal, No. 70), in which a railway employee, standing on a car, was thrown therefrom and killed
by the shock following the backing up of the engine. It was held that the management of the train
and engine being in conformity with proper rules of the company, showed no fault on its part.

Of the second class are the decision of the 15th of January, the 19th of February, and the 7th of
March, 1902, stated in Alcubilla's Index of that year; and of the third class the decision of the 4th of
June, 1888 (64 Jurisprudencia Civil, No. 1), in which the breaking down of plaintiff's dam by the logs
of the defendant impelled against it by the Tajo River, was held due to a freshet as a fortuitous
cause.

The decision of the 7th of March, 1902, on which stress has been laid, rested on two bases, one,
that the defendant was not negligent, because expressly relieved by royal order from the common
obligation imposed by the police law of maintaining a guard at the road crossing; the other, because
the act of the deceased in driving over level ground with unobstructed view in front of a train running
at speed, with the engine whistle blowing was the determining cause of the accident. It is plain that
the train was doing nothing but what it had a right to do and that the only fault lay with the injured
man. His negligence was not contributory, it was sole, and was of such an efficient nature that
without it no catastrophe could have happened.

On the other hand, there are many cases reported in which it seems plain that the plaintiff sustaining
damages was not free from contributory negligence; for instance, the decision of the 14th of
December, 1894 (76 Jurisprudencia Civil, No. 134), in which the owner of a building was held liable
for not furnishing protection to workmen engaged in hanging out flags, when the latter must have
perceived beforehand the danger attending the work.

None of those cases define the effect to be given the negligence of a plaintiff which contributed to
his injury as one of its causes, though not the principal one, and we are left to seek the theory of the
civil law in the practice of other countries.

In France in the case of Marquant, August 20, 1879, the cour de cassation held that the
carelessness of the victim did not civilly relieve the person without whose fault the accident could not
have happened, but that the contributory negligence of the injured man had the effect only of
reducing the damages. The same principle was applied in the case of Recullet, November 10, 1888.
and that of Laugier of the 11th of November, 1896. (Fuzier-Herman, Title Responsibilite Cirile, 411,
412.) Of like tenor are citations in Dalloz (vol. 18, 1806, Title Trail, 363, 364, and vol. 15, 1895, Title
Responsibilite, 193, 198).

In the Canadian Province of Quebee, which has retained for the most part the French Civil Law, now
embodied in a code following the Code Napoleon, a practice in accord with that of France is laid
down in many cases collected in the annotations to article 1053 of the code edited by Beauchamps,
1904. One of these is Luttrell vs. Trottier, reported in La Revue de Jurisprudence, volume 6, page
90, in which the court of Kings bench, otherwise known as the court of appeals, the highest authority
in the Dominion of Canada on points of French law, held that contributory negligence did not
exonerate the defendants whose fault had been the immediate cause of the accident, but entitled
him to a reduction of damages. Other similar cases in the provincial courts have been overruled by
appellate tribunals made up of common law judges drawn from other provinces, who have preferred
to impose uniformally throughout the Dominion the English theory of contributory negligence. Such
decisions throw no light upon the doctrines of the civil law. Elsewhere we find this practice embodied
in legislation; for instance, section 2 of article 2398 of the Code of Portugal reads as follows:

If in the case of damage there was fault or negligence on the part of the person injured or in
the part of some one else, the indemnification shall be reduced in the first case, and in the
second case it shall be appropriated in proportion to such fault or negligence as provided in
paragraphs 1 and 2 of section 2372.

And in article 1304 of the Austrian Code provides that the victim who is partly changeable with the
accident shall stand his damages in proportion to his fault, but when that proportion is incapable of
ascertainment, he shall share the liability equally with the person principally responsible. The
principle of proportional damages appears to be also adopted in article 51 of the Swiss Code. Even
in the United States in admirality jurisdictions, whose principles are derived from the civil law,
common fault in cases of collision have been disposed of not on the ground of contradictor
negligence, but on that of equal loss, the fault of the one part being offset against that of the other.
(Ralli vs. Troop, 157 U. S. 386; 97.)

The damage of both being added together and the sum equally divided, a decree is entered in favor
of the vessel sustaining the greater loss against the other for the excess of her damages over one-
half of the aggregate sum. (The Manitoba, 122 U. S., 97)

Exceptional practice appears to prevail in maritime law in other jurisdictions. The Spanish Code of
Commerce, article 827, makes each vessel for its own damage when both are the fault; this
provision restricted to a single class of the maritime accidents, falls for short of a recognition of the
principle of contributory negligence as understood in American Law, with which, indeed, it has little in
common. This is a plain from other articles of the same code; for instance, article 829, referring to
articles 826, 827, and 828, which provides: "In the cases above mentioned the civil action of the
owner against the person liable for the damage is reserved, as well as the criminal liability which
may appear."

The rule of the common law, a hard and fast one, not adjustable with respects of the faults of the
parties, appears to have grown out the original method of trial by jury, which rendered difficult a nice
balancing of responsibilities and which demanded an inflexible standard as a safeguard against too
ready symphaty for the injured. It was assumed that an exact measure of several concurring faults
was unattainable.

The reason why, in cases of mutual concurring negligence, neither party can maintain an
action against the other, is, not the wrong of the one is set off against the wrong of the other;
it that the law can not measure how much of the damage suffered is attributable to the
plaintiff's own fault. If he were allowed to recover, it might be that he would obtain from the
other party compensation for hiss own misconduct. (Heil vs. Glanding, 42 Penn. St. Rep.,
493, 499.)

The parties being mutually in fault, there can be no appointment of damages. The law has no
scales to determine in such cases whose wrongdoing weighed most in the compound that
occasioned the mischief. (Railroad vs. Norton, 24 Penn. St. 565, 469.)

Experience with jury trials in negligence cases has brought American courts to review to relax the
vigor of the rule by freely exercising the power of setting aside verdicts deemed excessive, through
the device of granting new trials, unless reduced damages are stipulated for, amounting to a partial
revision of damages by the courts. It appears to us that the control by the court of the subject matter
may be secured on a moral logical basis and its judgment adjusted with greater nicety to the merits
of the litigants through the practice of offsetting their respective responsibilities. In the civil law
system the desirable end is not deemed beyond the capacity of its tribunals.

Whatever may prove to be the doctrine finally adopted in Spain or in other countries under the stress
and counter stress of novel schemers of legislation, we find the theory of damages laid down in the
judgment the most consistent with the history and the principals of our law in these Islands and with
its logical development.

Difficulty seems to be apprehended in deciding which acts of the injured party shall be considered
immediate causes of the accident. The test is simple. Distinction must be between the accident and
the injury, between the event itself, without which there could have been no accident, and those acts
of the victim not entering into it, independent of it, but contributing under review was the
displacement of the crosspiece or the failure to replace it. this produced the event giving occasion for
damages — that is, the shinking of the track and the sliding of the iron rails. To this event, the act of
the plaintiff in walking by the side of the car did not contribute, although it was an element of the
damage which came to himself. Had the crosspiece been out of place wholly or partly thorough his
act of omission of duty, the last would have been one of the determining causes of the event or
accident, for which he would have been responsible. Where he contributes to the principal
occurrence, as one of its determining factors, he can not recover. Where, in conjunction with the
occurrence, he contributes only to his own injury, he may recover the amount that the defendant
responsible for the event should pay for such injury, less a sum deemed a suitable equivalent for his
own imprudence.

Accepting, though with some hesitation, the judgment of the trial court, fixing the damage incurred by
the plaintiff at 5,000 pesos, the equivalent of 2,500 dollars, United States money, we deduct
therefrom 2,500 pesos, the amount fairly attributable to his negligence, and direct judgment to be
entered in favor of the plaintiff for the resulting sum of 2,500 pesos, with cost of both instances, and
ten days hereafter let the case be remanded to the court below for proper action. So ordered.

[G.R. No. 156940. December 14, 2004]

ASSOCIATED BANK (Now WESTMONT BANK), petitioner,
vs.
VICENTE HENRY TAN, respondent.

DECISION
PANGANIBAN, J.:

While banks are granted by law the right to debit the value of a dishonored check from a
depositors account, they must do so with the highest degree of care, so as not to prejudice the
depositor unduly.

The Case

Before us is a Petition for Review[1] under Rule 45 of the Rules of Court, assailing the January
27, 2003 Decision[2] of the Court of Appeals (CA) in CA-GR CV No. 56292. The CA disposed as
follows:
WHEREFORE, premises considered, the Decision dated December 3, 1996, of
the Regional Trial Court of Cabanatuan City, Third Judicial Region, Branch 26, in Civil Case No. 892-AF
is hereby AFFIRMED. Costs against the [petitioner].[3]

The Facts

The CA narrated the antecedents as follows:

Vicente Henry Tan (hereafter TAN) is a businessman and a regular depositor-creditor of the Associated
Bank (hereinafter referred to as the BANK). Sometime in September 1990, he deposited a postdated
UCPB check with the said BANK in the amount of P101,000.00 issued to him by a certain Willy Cheng
from Tarlac. The check was duly entered in his bank record thereby making his balance in the amount
of P297,000.00, as of October 1, 1990, from his original deposit of P196,000.00. Allegedly, upon advice
and instruction of the BANK that the P101,000.00 check was already cleared and backed up by sufficient
funds, TAN, on the same date, withdrew the sum of P240,000.00, leaving a balance of P57,793.45. A day
after, TAN deposited the amount of P50,000.00 making his existing balance in the amount
of P107,793.45, because he has issued several checks to his business partners, to wit:

CHECK NUMBERS DATE AMOUNT

a. 138814 Sept. 29, 1990 P9,000.00

b. 138804 Oct. 8, 1990 9,350.00
c. 138787 Sept. 30, 1990 6,360.00
d. 138847 Sept. 29, 1990 21,850.00
e. 167054 Sept. 29, 1990 4,093.40
f. 138792 ` Sept. 29, 1990 3,546.00
g. 138774 Oct. 2, 1990 6,600.00
h. 167072 Oct. 10, 1990 9,908.00
i. 168802 Oct. 10, 1990 3,650.00

However, his suppliers and business partners went back to him alleging that the checks he issued bounced
for insufficiency of funds. Thereafter, TAN, thru his lawyer, informed the BANK to take positive steps
regarding the matter for he has adequate and sufficient funds to pay the amount of the subject
checks. Nonetheless, the BANK did not bother nor offer any apology regarding the
incident. Consequently, TAN, as plaintiff, filed a Complaint for Damages on December 19, 1990, with
the Regional Trial Court of Cabanatuan City, Third Judicial Region, docketed as Civil Case No. 892-AF,
against the BANK, as defendant.

In his [C]omplaint, [respondent] maintained that he ha[d] sufficient funds to pay the subject checks and
alleged that his suppliers decreased in number for lack of trust. As he has been in the business community
for quite a time and has established a good record of reputation and probity, plaintiff claimed that he
suffered embarrassment, humiliation, besmirched reputation, mental anxieties and sleepless nights
because of the said unfortunate incident. [Respondent] further averred that he continuously lost profits in
the amount of P250,000.00. [Respondent] therefore prayed for exemplary damages and that [petitioner]
be ordered to pay him the sum of P1,000,000.00 by way of moral damages, P250,000.00 as lost
profits, P50,000.00 as attorneys fees plus 25% of the amount claimed including P1,000.00 per court
appearance.
Meanwhile, [petitioner] filed a Motion to Dismiss on February 7, 1991, but the same was denied for lack
of merit in an Order dated March 7, 1991. Thereafter, [petitioner] BANK on March 20, 1991 filed its
Answer denying, among others, the allegations of [respondent] and alleged that no banking institution
would give an assurance to any of its client/depositor that the check deposited by him had already been
cleared and backed up by sufficient funds but it could only presume that the same has been honored by
the drawee bank in view of the lapse of time that ordinarily takes for a check to be cleared. For its part,
[petitioner] alleged that on October 2, 1990, it gave notice to the [respondent] as to the return of his
UCPB check deposit in the amount of P101,000.00, hence, on even date, [respondent] deposited the
amount of P50,000.00 to cover the returned check.

By way of affirmative defense, [petitioner] averred that [respondent] had no cause of action against it and
argued that it has all the right to debit the account of the [respondent] by reason of the dishonor of the
check deposited by the [respondent] which was withdrawn by him prior to its clearing. [Petitioner] further
averred that it has no liability with respect to the clearing of deposited checks as the clearing is being
undertaken by the Central Bank and in accepting [the] check deposit, it merely obligates itself as
depositors collecting agent subject to actual payment by the drawee bank. [Petitioner] therefore prayed
that [respondent] be ordered to pay it the amount of P1,000,000.00 by way of loss of goodwill, P7,000.00
as acceptance fee plus P500.00 per appearance and by way of attorneys fees.

Considering that Westmont Bank has taken over the management of the affairs/properties of the BANK,
[respondent] on October 10, 1996, filed an Amended Complaint reiterating substantially his allegations in
the original complaint, except that the name of the previous defendant ASSOCIATED BANK is now
WESTMONT BANK.

Trial ensured and thereafter, the court rendered its Decision dated December 3, 1996 in favor of the
[respondent] and against the [petitioner], ordering the latter to pay the [respondent] the sum
of P100,000.00 by way of moral damages, P75,000.00 as exemplary damages, P25,000.00 as attorneys
fees, plus the costs of this suit. In making said ruling, it was shown that [respondent] was not officially
informed about the debiting of the P101,000.00 [from] his existing balance and that the BANK merely
allowed the [respondent] to use the fund prior to clearing merely for accommodation because the BANK
considered him as one of its valued clients. The trial court ruled that the bank manager was negligent in
handling the particular checking account of the [respondent] stating that such lapses caused all the
inconveniences to the [respondent]. The trial court also took into consideration that [respondents] mother
was originally maintaining with the x x x BANK [a] current account as well as [a] time deposit, but [o]n
one occasion, although his mother made a deposit, the same was not credited in her favor but in the name
of another.[4]

Petitioner appealed to the CA on the issues of whether it was within its rights, as collecting
bank, to debit the account of its client for a dishonored check; and whether it had informed
respondent about the dishonor prior to debiting his account.

Ruling of the Court of Appeals

Affirming the trial court, the CA ruled that the bank should not have authorized the withdrawal
of the value of the deposited check prior to its clearing. Having done so, contrary to its obligation
to treat respondents account with meticulous care, the bank violated its own policy. It thereby took
upon itself the obligation to officially inform respondent of the status of his account before
unilaterally debiting the amount of P101,000. Without such notice, it is estopped from blaming him
for failing to fund his account.
The CA opined that, had the P101,000 not been debited, respondent would have had
sufficient funds for the postdated checks he had issued. Thus, the supposed accommodation
accorded by petitioner to him is the proximate cause of his business woes and shame, for which
it is liable for damages.
Because of the banks negligence, the CA awarded respondent moral damages
of P100,000. It also granted him exemplary damages of P75,000 and attorneys fees of P25,000.
Hence this Petition.[5]

Issue

In its Memorandum, petitioner raises the sole issue of whether or not the petitioner, which is
acting as a collecting bank, has the right to debit the account of its client for a check deposit which
was dishonored by the drawee bank.[6]

The Courts Ruling

The Petition has no merit.

Sole Issue:
Debit of Depositors Account

Petitioner-bank contends that its rights and obligations under the present set of facts were
misappreciated by the CA. It insists that its right to debit the amount of the dishonored check from
the account of respondent is clear and unmistakable. Even assuming that it did not give him notice
that the check had been dishonored, such right remains immediately enforceable.
In particular, petitioner argues that the check deposit slip accomplished by respondent
on September 17, 1990, expressly stipulated that the bank was obligating itself merely as the
depositors collecting agent and -- until such time as actual payment would be made to it -- it was
reserving the right to charge against the depositors account any amount previously
credited. Respondent was allowed to withdraw the amount of the check prior to clearing, merely
as an act of accommodation, it added.
At the outset, we stress that the trial courts factual findings that were affirmed by the CA are
not subject to review by this Court.[7] As petitioner itself takes no issue with those findings, we
need only to determine the legal consequence, based on the established facts.

Right of Setoff
 A bank generally has a right of setoff over the deposits therein for the payment of any
withdrawals on the part of a depositor.[8] The right of a collecting bank to debit a clients account
for the value of a dishonored check that has previously been credited has fairly been established
by jurisprudence. To begin with, Article 1980 of the Civil Code provides that [f]ixed, savings, and
current deposits of money in banks and similar institutions shall be governed by the provisions
concerning simple loan.
Hence, the relationship between banks and depositors has been held to be that of creditor
and debtor.[9] Thus, legal compensation under Article 1278[10] of the Civil Code may take place
when all the requisites mentioned in Article 1279 are present,[11] as follows:

(1) That each one of the obligors be bound principally, and that he be at the same time a principal creditor
of the other;
(2) That both debts consist in a sum of money, or if the things due are consumable, they be of
the same kind, and also of the same quality if the latter has been stated;
(3) That the two debts be due;
(4) That they be liquidated and demandable;
(5) That over neither of them there be any retention or controversy, commenced by third persons and
communicated in due time to the debtor.[12]

Nonetheless, the real issue here is not so much the right of petitioner to debit respondents
account but, rather, the manner in which it exercised such right. The Court has held that even
while the right of setoff is conceded, separate is the question of whether that remedy has properly
been exercised.[13]
The liability of petitioner in this case ultimately revolves around the issue of whether it properly
exercised its right of setoff. The determination thereof hinges, in turn, on the banks role and
obligations, first, as respondents depositary bank; and second, as collecting agent for the check
in question.

Obligation as
Depositary Bank

In BPI v. Casa Montessori,[14] the Court has emphasized that the banking business is
impressed with public interest. Consequently, the highest degree of diligence is expected, and
high standards of integrity and performance are even required of it. By the nature of its functions,
a bank is under obligation to treat the accounts of its depositors with meticulous care.[15]
Also affirming this long standing doctrine, Philippine Bank of Commerce v. Court of
Appeals[16] has held that the degree of diligence required of banks is more than that of a good
father of a family where the fiduciary nature of their relationship with their depositors is
concerned.[17] Indeed, the banking business is vested with the trust and confidence of the public;
hence the appropriate standard of diligence must be very high, if not the highest, degree of
diligence.[18] The standard applies, regardless of whether the account consists of only a few
hundred pesos or of millions.[19]
The fiduciary nature of banking, previously imposed by case law,[20] is now enshrined in
Republic Act No. 8791 or the General Banking Law of 2000. Section 2 of the law specifically says
that the State recognizes the fiduciary nature of banking that requires high standards of integrity
and performance.
 Did petitioner treat respondents account with the highest degree of care? From all indications,
it did not.
It is undisputed -- nay, even admitted -- that purportedly as an act of accommodation to a
valued client, petitioner allowed the withdrawal of the face value of the deposited check prior to
its clearing. That act certainly disregarded the clearance requirement of the banking system. Such
a practice is unusual, because a check is not legal tender or money;[21] and its value can properly
be transferred to a depositors account only after the check has been cleared by the drawee
bank.[22]
Under ordinary banking practice, after receiving a check deposit, a bank either immediately
credit the amount to a depositors account; or infuse value to that account only after the drawee
bank shall have paid such amount.[23] Before the check shall have been cleared for deposit, the
collecting bank can only assume at its own risk -- as herein petitioner did -- that the check would
be cleared and paid out.
Reasonable business practice and prudence, moreover, dictated that petitioner should not
have authorized the withdrawal by respondent of P240,000 on October 1, 1990, as this amount
was over and above his outstanding cleared balance of P196,793.45.[24] Hence, the lower courts
correctly appreciated the evidence in his favor.

Obligation as
Collecting Agent

Indeed, the bank deposit slip expressed this reservation:

In receiving items on deposit, this Bank obligates itself only as the Depositors Collecting agent, assuming
no responsibility beyond carefulness in selecting correspondents, and until such time as actual payments
shall have come to its possession, this Bank reserves the right to charge back to the Depositors account
any amounts previously credited whether or not the deposited item is returned. x x x."[25]

However, this reservation is not enough to insulate the bank from any liability. In the past, we
have expressed doubt about the binding force of such conditions unilaterally imposed by a bank
without the consent of the depositor.[26] It is indeed arguable that in signing the deposit slip, the
depositor does so only to identify himself and not to agree to the conditions set forth at the back
of the deposit slip.[27]
Further, by the express terms of the stipulation, petitioner took upon itself certain obligations
as respondents agent, consonant with the well-settled rule that the relationship between the
payee or holder of a commercial paper and the collecting bank is that of principal and
agent.[28] Under Article 1909[29] of the Civil Code, such bank could be held liable not only for fraud,
but also for negligence.
As a general rule, a bank is liable for the wrongful or tortuous acts and declarations of its
officers or agents within the course and scope of their employment. [30] Due to the very nature of
their business, banks are expected to exercise the highest degree of diligence in the selection
and supervision of their employees.[31] Jurisprudence has established that the lack of diligence of
a servant is imputed to the negligence of the employer, when the negligent or wrongful act of the
former proximately results in an injury to a third person;[32] in this case, the depositor.
 The manager of the banks Cabanatuan branch, Consorcia Santiago, categorically admitted
that she and the employees under her control had breached bank policies. They admittedly
breached those policies when, without clearance from the drawee bank in Baguio, they allowed
respondent to withdraw on October 1, 1990, the amount of the check deposited. Santiagotestified
that respondent was not officially informed about the debiting of the P101,000 from his existing
balance of P170,000 on October 2, 1990 x x x.[33]
Being the branch manager, Santiago clearly acted within the scope of her authority in
authorizing the withdrawal and the subsequent debiting without notice. Accordingly, what remains
to be determined is whether her actions proximately caused respondents injury. Proximate cause
is that which -- in a natural and continuous sequence, unbroken by any efficient intervening cause
--produces the injury, and without which the result would not have occurred.[34]
Let us go back to the facts as they unfolded. It is undeniable that the banks premature
authorization of the withdrawal by respondent on October 1, 1990, triggered -- in rapid succession
and in a natural sequence -- the debiting of his account, the fall of his account balance to
insufficient levels, and the subsequent dishonor of his own checks for lack of funds.The CA
correctly noted thus:

x x x [T]he depositor x x x withdrew his money upon the advice by [petitioner] that his money was
already cleared. Without such advice, [respondent] would not have withdrawn the sum
of P240,000.00.Therefore, it cannot be denied that it was [petitioners] fault which allowed [respondent] to
withdraw a huge sum which he believed was already his.

To emphasize, it is beyond cavil that [respondent] had sufficient funds for the check. Had
the P101,000.00 not [been] debited, the subject checks would not have been dishonored. Hence, we can
say that [respondents] injury arose from the dishonor of his well-funded checks. x x x.[35]

Aggravating matters, petitioner failed to show that it had immediately and duly informed
respondent of the debiting of his account. Nonetheless, it argues that the giving of notice was
discernible from his act of depositing P50,000 on October 2, 1990, to augment his account and
allow the debiting. This argument deserves short shrift.
First, notice was proper and ought to be expected. By the bank managers account,
respondent was considered a valued client whose checks had always been sufficiently funded
from 1987 to 1990,[36] until the October imbroglio. Thus, he deserved nothing less than an official
notice of the precarious condition of his account.
Second, under the provisions of the Negotiable Instruments Law regarding the liability of a
general indorser[37] and the procedure for a notice of dishonor,[38] it was incumbent on the bank to
give proper notice to respondent. In Gullas v. National Bank,[39] the Court emphasized:

x x x [A] general indorser of a negotiable instrument engages that if the instrument the check in this case
is dishonored and the necessary proceedings for its dishonor are duly taken, he will pay the amount
thereof to the holder (Sec. 66) It has been held by a long line of authorities that notice of dishonor is
necessary to charge an indorser and that the right of action against him does not accrue until the notice is
given.

x x x. The fact we believe is undeniable that prior to the mailing of notice of dishonor, and without
waiting for any action by Gullas, the bank made use of the money standing in his account to make good
for the treasury warrant. At this point recall that Gullas was merely an indorser and had issued checks in
good faith. As to a depositor who has funds sufficient to meet payment of a check drawn by him in favor
of a third party, it has been held that he has a right of action against the bank for its refusal to pay such a
check in the absence of notice to him that the bank has applied the funds so deposited in extinguishment
of past due claims held against him. (Callahan vs. Bank of Anderson [1904], 2 Ann. Cas., 203.) However
this may be, as to an indorser the situation is different, and notice should actually have been given him in
order that he might protect his interests.[40]

Third, regarding the deposit of P50,000 made by respondent on October 2, 1990, we fully
subscribe to the CAs observations that it was not unusual for a well-reputed businessman like
him, who ordinarily takes note of the amount of money he takes and releases, to immediately
deposit money in his current account to answer for the postdated checks he had issued.[41]

Damages

Inasmuch as petitioner does not contest the basis for the award of damages and attorneys
fees, we will no longer address these matters.

WHEREFORE, the Petition is DENIED and the assailed Decision AFFIRMED. Costs against
petitioner.
SO ORDERED.