3.
Upon completion of the design development services, but
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 83748 May 12, 1989
FLAVIO K MACASAET & ASSOCIATES, INC., petitioner,
vs.
COMMISSION ON AUDIT and PHILIPPINE TOURISM
AUTHORITY, respondents.
F. Sumulong & Associates Law Offices for petitioner.
MELENCIO-HERRERA, J.:
In this Petition for Certiorari, pursuant to Section 7, Article IX
of the 1987 Constitution, 1 petitioner, Flavio K. Macasaet &
Associates, Inc., prays that the ruling of public respondent
Commission on Audit (COA) denying its claim for completion
of payment of professional fees be overturned. The facts
follow. On 15 September 1977 respondent Philippine
Tourism Authority (PTA) entered into a Contract for "Project
Design and Management Services for the development of the
proposed Zamboanga Golf and Country Club, Calarian,
Zamboanga City" with petitioner company, but originally
with Flavio K Macasaet alone (hereinafter referred to simply
as the "Contract").
Under the Contract, PTA obligated itself to pay petitioner a
professional fee of seven (7%) of the actual construction
cost, as follows:
ARTICLE IV — PROFESSIONAL FEE
In consideration for the professional services to be
performed by Designer under Article I of this Agreement, the
Authority shall pay seven percent (7%) of the actual
construction cost.
In addition, a Schedule of Payments was provided for while
the construction was in progress and up to its final
completion, thus:
ARTICLE V — SCHEDULE OF PAYMENTS
1. Upon the execution of the Agreement but not more than
fifteen (15) days, a minimum payment equivalent to 10
percent of the professional fee as provided in Art. IV
computed upon a reasonable estimated construction cost of
the project.
2. Upon the completion of the schematic design services, but
not more than 15 days after the submission of the schematic
design to the Authority, a sum equivalent to 15% of the
professional fee as stated in Art. IV computed upon the
reasonable estimated construction cost of the project.
not more than 15 days after submission of the design
development to the authority, a sum equivalent to 20% of the
professional fee as stated in Art. IV, computed upon the
reasonable estimated construction cost.
4. Upon completion of the contract document services but
not more than 15 days after submission of the contract
document to the Authority, a sum equivalent to 25% of the
professional fee as stated in Art. IV, shall be paid computed
on the same basis as above.
5. Upon completion of the work and acceptance thereof by
the Authority, the balance of the professional fee, computed
on the final actual project cost shall be paid. (Emphasis
supplied)
Pursuant to the foregoing Schedule, the PTA made periodic
payments of the stipulated professional fees to petitioner.
And, upon completion of the project, PTA paid petitioners
what it perceived to be the balance of the latter's
professional fees.
It turned out, however, that after the project was completed,
PTA paid Supra Construction Company, the main contractor,
the additional sum of P3,148,198.26 representing the
escalation cost of the contract price due to the increase in the
price of construction materials.
Upon learning of the price escalation, petitioner requested
payment of P219,302.47 additional professional fee
representing seven (7%) percent of P3,148,198.26.
On 3 July 1985 PTA denied payment on the ground that "the
subject price escalation referred to increased cost of
construction materials and did not entail additional work on
the part of petitioner as to entitle it to additional
compensation under Article VI of the contract." 2
Reconsiderations sought by the petitioner, up to respondent
COA, were to no avail. The latter expressed the opinion that
"to allow subject claim in the absence of a showing that extra
or additional services had been rendered by claimant would
certainly result in overpayment to him to the prejudice of the
Government" (1st Indorsement, July 10, 1987, p. 3, Rollo, p.
42).
Hence this Petition, to which we gave due course.
The basic issue for resolution is petitioner's entitlement to
additional professional fees, which, in turn, hinges on
whether or not the price escalation should be included in the
"final actual project cost."
Public respondents, through the Solicitor General, maintain
that petitioner had been paid its professional fee upon
completion of the project and that its claim for additional
payment is without any legal and factual basis for, after all,
no additional architectural services were rendered other
than the ones under the terms of the Contract. On the other
hand, petitioner anchors its claim to additional professional
fees, not on any change in services rendered, but on Article WHEREFORE, the ruling of respondent Commission on Audit
IV, and paragraph 5 of Article V, of the Contract, supra. is hereby SET ASIDE and respondent Philippines Tourism
Authority is hereby ordered to pay petitioner the additional
The very terminologies used in the Contract call for amount of P219,302.47 to complete the payment of its
affirmative relief in petitioner's favor. professional fee under their Contract for Project Design and
Under Article IV of said Contract, petitioner was to be Management Services.
entitled to seven (7%) of the "actual construction cost." SO ORDERED.
Under paragraphs 1, 2, 3, and 4, Article V, periodic payments
were to be based on a "reasonable estimated construction Fernan, C.J., Narvasa, Gutierrez, Jr., Cruz, Paras, Feliciano,
cost." ultimately, under paragraph 5, Article V, the balance of Gancayco, Padilla, Bidin, Sarmiento, Cortes, Griño-Aquino,
the professional fee was to be computed on the basis of "the Medialdea and Regalado, JJ., concur.
final actual project cost."
The use of the terms "actual construction cost", gradating
into "final actual project cost" is not without significance. The
real intendment of the parties, as shown by paragraph 5,
Article V, of their Contract was to base the ultimate balance
of petitioner's professional fees not on "actual construction
cost" alone but on the final actual project cost; not on
"construction cost" alone but on "project cost." By so
providing, the Contract allowed for flexibility based on
actuality and as a matter of equity for the contracting parties.
For evidently, the final actual project cost would not
necessarily tally with the actual construction cost initially
computed. The "final actual project cost" covers the totality
of all costs as actually and finally determined, and logically
includes the escalation cost of the contract price.
It matters not that the price escalation awarded to the
construction company did not entail additional work for
petitioner. As a matter of fact, neither did it for the main
contractor. The increased cost of materials was not the doing
of either contracting party.
That an escalation clause was not specifically provided for in
the Contract is of no moment either for it may be considered
as already "built-in" and understood from the very terms
"actual construction cost," and eventually "final actual
project cost."
Article VI of the Contract, supra, has no bearing on the
present controversy either. It speaks of any major change in
the planning and engineering aspects necessitating the
award and payment of additional compensation. Admittedly,
there was no additional work by petitioner, which required
additional compensation. Rather, petitioner's claim is for
payment of the balance of its professional fees based on the
"final actual project cost" and not for additional
compensation based on Article VI.
The terminologies in the contract being clear, leaving no
doubt as to the intention of the contracting parties, their
literal meaning control (Article 1370, Civil Code). The price
escalation cost must be deemed included in the final actual
project cost and petitioner held entitled to the payment of its
additional professional fees. Obligations arising from
contract have the force of law between the contracting
parties and should be complied with in good faith (Article 11
59, Civil Code).
Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. L-30056 August 30, 1988
MARCELO AGCAOILI, plaintiff-appellee
vs.
GOVERNMENT SERVICE INSURANCE SYSTEM, defendant-
appellant.
Artemio L. Agcaoili for plaintiff-appellee.
Office of the Government Corporate Counsel for defendant-
appellant.
NARVASA, J.:
The appellant Government Service Insurance System, (GSIS,
for short) having approved the application of the appellee
Agcaoili for the purchase of a house and lot in the GSIS
Housing Project at Nangka Marikina, Rizal, subject to the
condition that the latter should forthwith occupy the house,
a condition that Agacoili tried to fulfill but could not for the
reason that the house was absolutely uninhabitable; Agcaoili,
after paying the first installment and other fees, having
thereafter refused to make further payment of other
stipulated installments until GSIS had made the house
habitable; and appellant having refused to do so, opting
instead to cancel the award and demand the vacation by
Agcaoili of the premises; and Agcaoili having sued the GSIS
in the Court of First Instance of Manila for specific
performance with damages and having obtained a favorable
judgment, the case was appealled to this Court by the GSIS.
Its appeal must fail.
The essential facts are not in dispute. Approval of Agcaoili's
aforementioned application for purchase 1 was contained in
a letter 2 addressed to Agcaoili and signed by GSIS Manager
Archimedes Villanueva in behalf of the Chairman-General
Manager, reading as follows:
Please be informed that your application to purchase a house
and lot in our GSIS Housing Project at Nangka, Marikina,
Rizal, has been approved by this Office. Lot No. 26, Block No.
(48) 2, together with the housing unit constructed thereon,
has been allocated to you.
You are, therefore, advised to occupy the said house
immediately.
If you fail to occupy the same within three (3) days from
receipt of this notice, your application shall be considered
automatically disapproved and the said house and lot will be
awarded to another applicant.
Agcaoili lost no time in occupying the house. He could not
stay in it, however, and had to leave the very next day,
because the house was nothing more than a shell, in such a
state of incompleteness that civilized occupation was not
possible: ceiling, stairs, double walling, lighting facilities,
water connection, bathroom, toilet kitchen, drainage, were
inexistent. Agcaoili did however ask a homeless friend, a
certain Villanueva, to stay in the premises as some sort of
watchman, pending completion of the construction of the
house. Agcaoili thereafter complained to the GSIS, to no avail.
The GSIS asked Agcaoili to pay the monthly amortizations
and other fees. Agcaoili paid the first monthly installment
and the incidental fees, 3 but refused to make further
payments until and unless the GSIS completed the housing
unit. What the GSIS did was to cancel the award and require
Agcaoili to vacate the premises. 4 Agcaoili reacted by
instituting suit in the Court of First Instance of Manila for
specific performance and damages. 5 Pending the action, a
written protest was lodged by other awardees of housing
units in the same subdivision, regarding the failure of the
System to complete construction of their own houses. 6
Judgment was in due course rendered ,7 on the basis of the
evidence adduced by Agcaoili only, the GSIS having opted to
dispense with presentation of its own proofs. The judgment
was in Agcaoili's favor and contained the following
dispositions, 8 to wit:
1) Declaring the cancellation of the award (of a house and
lot) in favor of plaintiff (Mariano Agcaoili) illegal and void;
2) Ordering the defendant (GSIS) to respect and enforce the
aforesaid award to the plaintiff relative to Lot No. 26, Block
No. (48) 2 of the Government Service Insurance System
(GSIS) low cost housing project at Nangka Marikina, Rizal;
3) Ordering the defendant to complete the house in question
so as to make the same habitable and authorizing it
(defendant) to collect the monthly amortization thereon only
after said house shall have been completed under the terms
and conditions mentioned in Exhibit A ;and
4) Ordering the defendant to pay P100.00 as damages and
P300.00 as and for attorney's fees, and costs.
Appellant GSIS would have this Court reverse this judgment
on the argument that—
1) Agcaoili had no right to suspend payment of amortizations
on account of the incompleteness of his housing unit, since
said unit had been sold "in the condition and state of
completion then existing ... (and) he is deemed to have
accepted the same in the condition he found it when he
accepted the award;" and assuming indefiniteness of the
contract in this regard, such circumstance precludes a
judgment for specific performance. 9
2) Perfection of the contract of sale between it and Agcaoili
being conditioned upon the latter's immediate occupancy of
the house subject thereof, and the latter having failed to
comply with the condition, no contract ever came into
existence between them ;10
3) Agcaoili's act of placing his homeless friend, Villanueva, in
possession, "without the prior or subsequent knowledge or
consent of the defendant (GSIS)" operated as a repudiation
by Agcaoili of the award and a deprivation of the GSIS at the
same time of the reasonable rental value of the property. 11
Agcaoili's offer to buy from GSIS was contained in a printed
form drawn up by the latter, entitled "Application to
Purchase a House and/or Lot." Agcaoili filled up the form,
signed it, and submitted it.12 The acceptance of the
application was also set out in a form (mimeographed) also
prepared by the GSIS. As already mentioned, this form sent
to Agcaoili, duly filled up, advised him of the approval of his
"application to purchase a house and lot in our GSIS Housing
Project at NANGKA, MARIKINA, RIZAL," and that "Lot No. 26,
Block No. (48) 2, together with the housing unit constructed
thereon, has been allocated to you." Neither the application
form nor the acceptance or approval form of the GSIS — nor
the notice to commence payment of a monthly amortizations,
which again refers to "the house and lot awarded" —
contained any hint that the house was incomplete, and was
being sold "as is," i.e., in whatever state of completion it
might be at the time. On the other hand, the condition
explicitly imposed on Agcaoili — "to occupy the said house
immediately," or in any case within three (3) days from
notice, otherwise his "application shall be considered
automatically disapproved and the said house and lot will be
awarded to another applicant" — would imply that
construction of the house was more or less complete, and it
was by reasonable standards, habitable, and that indeed, the
awardee should stay and live in it; it could not be interpreted
as meaning that the awardee would occupy it in the sense of
a pioneer or settler in a rude wilderness, making do with
whatever he found available in the envirornment.
There was then a perfected contract of sale between the
parties; there had been a meeting of the minds upon the
purchase by Agcaoili of a determinate house and lot in the
GSIS Housing Project at Nangka Marikina, Rizal at a definite
price payable in amortizations at P31.56 per month, and
from that moment the parties acquired the right to
reciprocally demand performance. 13 It was, to be sure, the
duty of the GSIS, as seller, to deliver the thing sold in a
condition suitable for its enjoyment by the buyer for the
purpose contemplated ,14 in other words, to deliver the
house subject of the contract in a reasonably livable state.
This it failed to do.
It sold a house to Agcaoili, and required him to immediately
occupy it under pain of cancellation of the sale. Under the
circumstances there can hardly be any doubt that the house
contemplated was one that could be occupied for purposes
of residence in reasonable comfort and convenience. There
would be no sense to require the awardee to immediately
occupy and live in a shell of a house, a structure consisting
only of four walls with openings, and a roof, and to theorize,
as the GSIS does, that this was what was intended by the
parties, since the contract did not clearly impose upon it the
obligation to deliver a habitable house, is to advocate an
absurdity, the creation of an unfair situation. By any
objective interpretation of its terms, the contract can only be
understood as imposing on the GSIS an obligation to deliver
to Agcaoili a reasonably habitable dwelling in return for his
undertaking to pay the stipulated price. Since GSIS did not
fulfill that obligation, and was not willing to put the house in
habitable state, it cannot invoke Agcaoili's suspension of
payment of amortizations as cause to cancel the contract
between them. It is axiomatic that "(i)n reciprocal
obligations, neither party incurs in delay if the other does not
comply or is not ready to comply in a proper manner with
what is incumbent upon him."15
Nor may the GSIS succeed in justifying its cancellation of the
award to Agcaoili by the claim that the latter had not
complied with the condition of occupying the house within
three (3) days. The record shows that Agcaoili did try to
fulfill the condition; he did try to occupy the house but found
it to be so uninhabitable that he had to leave it the following
day. He did however leave a friend in the structure, who
being homeless and hence willing to accept shelter even of
the most rudimentary sort, agreed to stay therein and look
after it. Thus the argument that Agcaoili breached the
agreement by failing to occupy the house, and by allowing
another person to stay in it without the consent of the GSIS,
must be rejected as devoid of merit.
Finally, the GSIS should not be heard to say that the
agreement between it and Agcaoili is silent, or imprecise as
to its exact prestation Blame for the imprecision cannot be
imputed to Agcaoili; it was after all the GSIS which caused the
contract to come into being by its written acceptance of
Agcaoili's offer to purchase, that offer being contained in a
printed form supplied by the GSIS. Said appellant having
caused the ambiguity of which it would now make capital,
the question of interpretation arising therefrom, should be
resolved against it.
It will not do, however, to dispose of the controversy by
simply declaring that the contract between the parties had
not been validly cancelled and was therefore still in force,
and that Agcaoili could not be compelled by the GSIS to pay
the stipulated price of the house and lot subject of the
contract until and unless it had first completed construction
of the house. This would leave the contract hanging or in
suspended animation, as it were, Agcaoili unwilling to pay
unless the house were first completed, and the GSIS averse
to completing construction, which is precisely what has been
the state of affairs between the parties for more than twenty
(20) years now. On the other hand, assuming it to be feasible
to still finish the construction of the house at this time, to
compel the GSIS to do so so that Agcaoili's prestation to pay
the price might in turn be demanded, without modifying the
price therefor, would not be quite fair. The cost to the GSIS of
completion of construction at present prices would make the
stipulated price disproportionate, unrealistic.
The situation calls for the exercise by this Court of its equity
jurisdiction, to the end that it may render complete justice to
both parties.
As we . . reaffirmed in Air Manila, Inc. vs. Court of Industrial
Relations (83 SCRA 579, 589 [1978]). "(E)quity as the
complement of legal jurisdiction seeks to reach and do
complete justice where courts of law, through the
inflexibility of their rules and want of power to adapt their
judgments to the special circumstances of cases, are
incompetent so to do. Equity regards the spirit of and not the
letter, the intent and not the form, the substance rather than
the circumstance, as it is variously expressed by different
courts... " 16
In this case, the Court can not require specific performance
of the contract in question according to its literal terms, as
this would result in inequity. The prevailing rule is that in
decreeing specific performance equity requires 17 —
... not only that the contract be just and equitable in its
provisions, but that the consequences of specific
performance likewise be equitable and just. The general rule
is that this equitable relief will not be granted if, under the
circumstances of the case, the result of the specific
enforcement of the contract would be harsh, inequitable,
oppressive, or result in an unconscionable advantage to the
plaintiff . .
In the exercise of its equity jurisdiction, the Court may adjust
the rights of parties in accordance with the circumstances
obtaining at the time of rendition of judgment, when these
are significantly different from those existing at the time of
generation of those rights.
The Court is not restricted to an adjustment of the rights of
the parties as they existed when suit was brought, but will
give relief appropriate to events occuring ending the suit. 18
While equitable jurisdiction is generally to be determined
with reference to the situation existing at the time the suit is
filed, the relief to be accorded by the decree is governed by
the conditions which are shown to exist at the time of making
thereof, and not by the circumstances attending the
inception of the litigation. In making up the final decree in an
equity suit the judge may rightly consider matters arising
after suit was brought. Therefore, as a general rule, equity
will administer such relief as the nature, rights, facts and
exigencies of the case demand at the close of the trial or at
the time of the making of the decree. 19
That adjustment is entirely consistent with the Civil Law
principle that in the exercise of rights a person must act with
justice, give everyone his due, and observe honesty and good
faith. 20 Adjustment of rights has been held to be particularly
applicable when there has been a depreciation of currency.
Depreciation of the currency or other medium of payment
contracted for has frequently been held to justify the court in
withholding specific performance or at least conditioning it
upon payment of the actual value of the property contracted
for. Thus, in an action for the specific performance of a real
estate contract, it has been held that where the currency in
which the plaintiff had contracted to pay had greatly
depreciated before enforcement was sought, the relief would
be denied unless the complaint would undertake to pay the
equitable value of the land. (Willard & Tayloe [U.S.] 8 Wall
557,19 L. Ed 501; Doughdrill v. Edwards, 59 Ala 424) 21
In determining the precise relief to give, the Court will
"balance the equities" or the respective interests of the
parties, and take account of the relative hardship that one
relief or another may occasion to them .22
The completion of the unfinished house so that it may be put
into habitable condition, as one form of relief to the plaintiff
Agcaoili, no longer appears to be a feasible option in view of
the not inconsiderable time that has already elapsed. That
would require an adjustment of the price of the subject of the
sale to conform to present prices of construction materials
and labor. It is more in keeping with the realities of the
situation, and with equitable norms, to simply require
payment for the land on which the house stands, and for the
house itself, in its unfinished state, as of the time of the
contract. In fact, this is an alternative relief proposed by
Agcaoili himself, i.e., "that judgment issue . . (o)rdering the
defendant (GSIS) to execute a deed of sale that would
embody and provide for a reasonable amortization of
payment on the basis of the present actual unfinished and
uncompleted condition, worth and value of the said house.
23
WHEREFORE, the judgment of the Court a quo insofar as it
invalidates and sets aside the cancellation by respondent
GSIS of the award in favor of petitioner Agcaoili of Lot No. 26,
Block No. (48) 2 of the GSIS low cost housing project at
Nangka, Marikina, Rizal, and orders the former to respect the
aforesaid award and to pay damages in the amounts
specified, is AFFIRMED as being in accord with the facts and
the law. Said judgments is however modified by deleting the
requirement for respondent GSIS "to complete the house in
question so as to make the same habitable," and instead it is
hereby ORDERED that the contract between the parties
relative to the property above described be modified by
adding to the cost of the land, as of the time of perfection of
the contract, the cost of the house in its unfinished state also
as of the time of perfection of the contract, and
correspondingly adjusting the amortizations to be paid by
petitioner Agcaoili, the modification to be effected after
determination by the Court a quo of the value of said house
on the basis of the agreement of the parties, or if this is not
possible by such commissioner or commissioners as the
Court may appoint. No pronouncement as to costs.
SO ORDERED.
Cruz, Gancayco, Aquino and Medialdea, JJ., concur.
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 120592 March 14, 1997
TRADERS ROYAL BANK EMPLOYEES UNION-
INDEPENDENT, petitioner,
vs.
NATIONAL LABOR RELATIONS COMMISSION and
EMMANUEL NOEL A. CRUZ, respondents.
REGALADO, J.:
Petitioner Traders Royal Bank Employees Union and private
respondent Atty. Emmanuel Noel A. Cruz, head of the E.N.A.
Cruz and Associates law firm, entered into a retainer
agreement on February 26, 1987 whereby the former
obligated itself to pay the latter a monthly retainer fee of
P3,000.00 in consideration of the law firm's undertaking to
render the services enumerated in their contract.1
Parenthetically, said retainer agreement was terminated by
the union on April 4, 1990.2
During the existence of that agreement, petitioner union
referred to private respondent the claims of its members for
holiday, mid-year and year-end bonuses against their
employer, Traders Royal Bank (TRB). After the appropriate
complaint was filed by private respondent, the case was
certified by the Secretary of Labor to the National Labor
Relations Commission (NLRC) on March 24, 1987 and
docketed as NLRC-NCR Certified Case No. 0466.3
On September 2, 1988, the NLRC rendered a decision in the
foregoing case in favor of the employees, awarding them
holiday pay differential, mid-year bonus differential, and
year-end bonus differential.4 The NLRC, acting on a motion
for the issuance of a writ of execution filed by private
respondent as counsel for petitioner union, raffled the case
to Labor Arbiter Oswald Lorenzo.5
However, pending the hearing of the application for the writ
of execution, TRB challenged the decision of the NLRC before
the Supreme Court. The Court, in its decision promulgated on
August 30, 1990,6 modified the decision of the NLRC by
deleting the award of mid-year and year-end bonus
differentials while affirming the award of holiday pay
differential.7
The bank voluntarily complied with such final judgment and
determined the holiday pay differential to be in the amount
of P175,794.32. Petitioner never contested the amount thus
found by TRB.8 The latter duly paid its concerned employees
their respective entitlement in said sum through their
payroll.9
After private respondent received the above decision of the
Supreme Court on September 18, 1990, 10 he notified the
petitioner union, the TRB management and the NLRC of his
right to exercise and enforce his attorney's lien over the
award of holiday pay differential through a letter dated
October 8, 1990. 11
Thereafter, on July 2, 1991, private respondent filed a motion
before Labor Arbiter Lorenzo for the determination of his
attorney's fees, praying that ten percent (10%) of the total
award for holiday pay differential computed by TRB at
P175,794.32, or the amount of P17,579.43, be declared as his
attorney's fees, and that petitioner union be ordered to pay
and remit said amount to him. 12
The TRB management manifested before the labor arbiter
that they did not wish to oppose or comment on private
respondent's motion as the claim was directed against the
union, 13 while petitioner union filed a comment and
opposition to said motion on July 15, 1991. 14 After
considering the position of the parties, the labor arbiter
issued an order 15 on November 26, 1991 granting the
motion of private respondent, as follows:
WHEREFORE, premises considered, it is hereby ordered that
the TRADERS ROYAL BANK EMPLOYEES UNION with offices
at Kanlaon Towers, Roxas Boulevard is hereby ordered (sic)
to pay without delay the attorney's fees due the movant law
firm, E.N.A. CRUZ and ASSOCIATES the amount of P17,574.43
or ten (10%) per cent of the P175,794.32 awarded by the
Supreme Court to the members of the former.
This constrained petitioner to file an appeal with the NLRC
on December 27, 1991, seeking a reversal of that order. 16
On October 19, 1994, the First Division of the NLRC
promulgated a resolution affirming the order of the labor
arbiter. 17 The motion for reconsideration filed by petitioner
was denied by the NLRC in a resolution dated May 23, 1995,
18 hence the petition at bar.
Petitioner maintains that the NLRC committed grave abuse
of discretion amounting to lack of jurisdiction in upholding
the award of attorney's fees in the amount of P17,574.43, or
ten percent (10%) of the P175,794.32 granted as holiday pay
differential to its members, in violation of the retainer
agreement; and that the challenged resolution of the NLRC is
null and void, 19 for the reasons hereunder stated.
Although petitioner union concedes that the NLRC has
jurisdiction to decide claims for attorney's fees, it contends
that the award for attorney's fees should have been
incorporated in the main case and not after the Supreme
Court had already reviewed and passed upon the decision of
the NLRC. Since the claim for attorney's fees by private
respondent was neither taken up nor approved by the
Supreme Court, no attorney's fees should have been allowed
by the NLRC.
Thus, petitioner posits that the NLRC acted without
jurisdiction in making the award of attorney's fees, as said
act constituted a modification of a final and executory
judgment of the Supreme Court which did not award
attorney's fees. It then cited decisions of the Court declaring
that a decision which has become final and executory can no
longer be altered or modified even by the court which
rendered the same.
On the other hand, private respondent maintains that his
motion to determine attorney's fees was just an incident of
the main case where petitioner was awarded its money
claims. The grant of attorney's fees was the consequence of
his exercise of his attorney's lien. Such lien resulted from and
corresponds to the services he rendered in the action
wherein the favorable judgment was obtained. To include
the award of the attorney's fees in the main case presupposes
that the fees will be paid by TRB to the adverse party. All that
the non-inclusion of attorney's fees in the award means is
that the Supreme Court did not order TRB to pay the
opposing party attorney's fees in the concept of damages. He
is not therefore precluded from filing his motion to have his
own professional fees adjudicated.
In view of the substance of the arguments submitted by
petitioner and private respondent on this score, it appears
necessary to explain and consequently clarify the nature of
the attorney's fees subject of this petition, in order to
dissipate the apparent confusion between and the conflicting
views of the parties.
There are two commonly accepted concepts of attorney's
fees, the so-called ordinary and extraordinary. 20 In its
ordinary concept, an attorney's fee is the reasonable
compensation paid to a lawyer by his client for the legal
services he has rendered to the latter. The basis of this
compensation is the fact of his employment by and his
agreement with the client.
In its extraordinary concept, an attorney's fee is an
indemnity for damages ordered by the court to be paid by the
losing party in a litigation. The basis of this is any of the cases
provided by law where such award can be made, such as
those authorized in Article 2208, Civil Code, and is payable
not to the lawyer but to the client, unless they have agreed
that the award shall pertain to the lawyer as additional
compensation or as part thereof.
It is the first type of attorney's fees which private respondent
demanded before the labor arbiter. Also, the present
controversy stems from petitioner's apparent misperception
that the NLRC has jurisdiction over claims for attorney's fees
only before its judgment is reviewed and ruled upon by the
Supreme Court, and that thereafter the former may no longer
entertain claims for attorney's fees.
It will be noted that no claim for attorney's fees was filed by
private respondent before the NLRC when it acted on the
money claims of petitioner, nor before the Supreme Court
when it reviewed the decision of the NLRC. It was only after
the High Tribunal modified the judgment of the NLRC
awarding the differentials that private respondent filed his
claim before the NLRC for a percentage thereof as attorney's
fees.
It would obviously have been impossible, if not improper, for
the NLRC in the first instance and for the Supreme Court
thereafter to make an award for attorney's fees when no
claim therefor was pending before them. Courts generally
rule only on issues and claims presented to them for
adjudication. Accordingly, when the labor arbiter ordered
the payment of attorney's fees, he did not in any way modify
the judgment of the Supreme Court.
As an adjunctive episode of the action for the recovery of
bonus differentials in NLRC-NCR Certified Case No. 0466,
private respondent's present claim for attorney's fees may
be filed before the NLRC even though or, better stated,
especially after its earlier decision had been reviewed and
partially affirmed. It is well settled that a claim for attorney's
fees may be asserted either in the very action in which the
services of a lawyer had been rendered or in a separate
action. 21
With respect to the first situation, the remedy for recovering
attorney's fees as an incident of the main action may be
availed of only when something is due to the client. 22
Attorney's fees cannot be determined until after the main
litigation has been decided and the subject of the recovery is
at the disposition of the court. The issue over attorney's fees
only arises when something has been recovered from which
the fee is to be paid. 23
While a claim for attorney's fees may be filed before the
judgment is rendered, the determination as to the propriety
of the fees or as to the amount thereof will have to be held in
abeyance until the main case from which the lawyer's claim
for attorney's fees may arise has become final. Otherwise, the
determination to be made by the courts will be premature.
24 Of course, a petition for attorney's fees may be filed before
the judgment in favor of the client is satisfied or the proceeds
thereof delivered to the client. 25
It is apparent from the foregoing discussion that a lawyer has
two options as to when to file his claim for professional fees.
Hence, private respondent was well within his rights when
he made his claim and waited for the finality of the judgment
for holiday pay differential, instead of filing it ahead of the
award's complete resolution. To declare that a lawyer may
file a claim for fees in the same action only before the
judgment is reviewed by a higher tribunal would deprive
him of his aforestated options and render ineffective the
foregoing pronouncements of this Court.
Assailing the rulings of the labor arbiter and the NLRC,
petitioner union insists that it is not guilty of unjust
enrichment because all attorney's fees due to private
respondent were covered by the retainer fee of P3,000.00
which it has been regularly paying to private respondent
under their retainer agreement. To be entitled to the
additional attorney's fees as provided in Part D (Special
Billings) of the agreement, it avers that there must be a
separate mutual agreement between the union and the law
firm prior to the performance of the additional services by
the latter. Since there was no agreement as to the payment of
the additional attorney's fees, then it is considered waived.
En contra, private respondent contends that a retainer fee is
not the attorney's fees contemplated for and commensurate
to the services he rendered to petitioner. He asserts that
although there was no express agreement as to the amount
of his fees for services rendered in the case for recovery of
differential pay, Article 111 of the Labor Code supplants this
omission by providing for an award of ten percent (10%) of
a money judgment in a labor case as attorney's fees.
It is elementary that an attorney is entitled to have and
receive a just and reasonable compensation for services
performed at the special instance and request of his client. As
long as the lawyer was in good faith and honestly trying to
represent and serve the interests of the client, he should have
a reasonable compensation for such services. 26 It will thus
be appropriate, at this juncture, to determine if private
respondent is entitled to an additional remuneration under
the retainer agreement 27 entered into by him and
petitioner.
The parties subscribed therein to the following stipulations:
xxx xxx xxx
The Law Firm shall handle cases and extend legal services
under the parameters of the following terms and conditions:
A. GENERAL SERVICES
1. Assurance that an Associate of the Law Firm shall be
designated and be available on a day-to-day basis depending
on the Union's needs;
2. Legal consultation, advice and render opinion on any
actual and/or anticipatory situation confronting any matter
within the client's normal course of business;
3. Proper documentation and notarization of any or all
transactions entered into by the Union in its day-to-day
course of business;
4. Review all contracts, deeds, agreements or any other legal
document to which the union is a party signatory thereto but
prepared or caused to be prepared by any other third party;
5. Represent the Union in any case wherein the Union is a
party litigant in any court of law or quasi-judicial body
subject to certain fees as qualified hereinafter;
6. Lia(i)se with and/or follow-up any pending application or
any papers with any government agency and/or any private
institution which is directly related to any legal matter
referred to the Law Firm.
B. SPECIAL LEGAL SERVICES
1. Documentation of any contract and other legal
instrument/documents arising and/or required by your
Union which do not fall under the category of its ordinary
course of business activity but requires a special, exhaustive
or detailed study and preparation;
2. Conduct or undertake researches and/or studies on
special projects of the Union;
3. Render active and actual participation or assistance in
conference table negotiations with TRB management or any
other third person(s), juridical or natural, wherein the
presence of counsel is not for mere consultation except CBA
negotiations which shall be subject to a specific agreement
(pursuant to PD 1391 and in relation to BP 130 & 227);
4. Preparation of Position Paper(s), Memoranda or any other
pleading for and in behalf of the Union;
5. Prosecution or defense of any case instituted by or against
the Union; and,
6. Represent any member of the Union in any proceeding
provided that the particular member must give his/her
assent and that prior consent be granted by the principal
officers. Further, the member must conform to the rules and
policies of the Law Firm.
C. FEE STRUCTURE
In consideration of our commitment to render the services
enumerated above when required or necessary, your Union
shall pay a monthly retainer fee of THREE THOUSAND PESOS
(PHP 3,000.00), payable in advance on or before the fifth day
of every month.
An Appearance Fee which shall be negotiable on a case-to-
case basis.
Any and all Attorney's Fees collected from the adverse party
by virtue of a successful litigation shall belong exclusively to
the Law Firm.
It is further understood that the foregoing shall be without
prejudice to our claim for reimbursement of all out-of-pocket
expenses covering filing fees, transportation, publication
costs, expenses covering reproduction or authentication of
documents related to any matter referred to the Law Firm or
that which redound to the benefit of the Union.
D. SPECIAL BILLINGS
In the event that the Union avails of the services duly
enumerated in Title B, the Union shall pay the Law Firm an
amount mutually agreed upon PRIOR to the performance of
such services. The sum agreed upon shall be based on actual
time and effort spent by the counsel in relation to the
importance and magnitude of the matter referred to by the
Union. However, charges may be WAIVED by the Law Firm if
it finds that time and efforts expended on the particular
services are inconsequential but such right of waiver is duly
reserved for the Law Firm.
xxx xxx xxx
The provisions of the above contract are clear and need no
further interpretation; all that is required to be done in the
instant controversy is its application. The P3,000.00 which
petitioner pays monthly to private respondent does not
cover the services the latter actually rendered before the
labor arbiter and the NLRC in behalf of the former. As
stipulated in Part C of the agreement, the monthly fee is
intended merely as a consideration for the law firm's
commitment to render the services enumerated in Part A
(General Services) and Part B (Special Legal Services) of the
retainer agreement.
The difference between a compensation for a commitment to
render legal services and a remuneration for legal services
actually rendered can better be appreciated with a
discussion of the two kinds of retainer fees a client may pay
his lawyer. These are a general retainer, or a retaining fee,
and a special
retainer. 28
A general retainer, or retaining fee, is the fee paid to a lawyer
to secure his future services as general counsel for any
ordinary legal problem that may arise in the routinary
business of the client and referred to him for legal action. The
future services of the lawyer are secured and committed to
the retaining client. For this, the client pays the lawyer a fixed
retainer fee which could be monthly or otherwise, depending
upon their arrangement. The fees are paid whether or not
there are cases referred to the lawyer. The reason for the
remuneration is that the lawyer is deprived of the
opportunity of rendering services for a fee to the opposing
party or other parties. In fine, it is a compensation for lost
opportunities.
A special retainer is a fee for a specific case handled or
special service rendered by the lawyer for a client. A client
may have several cases demanding special or individual
attention. If for every case there is a separate and
independent contract for attorney's fees, each fee is
considered a special retainer.
As to the first kind of fee, the Court has had the occasion to
expound on its concept in Hilado vs. David 29 in this wise:
There is in legal practice what is called a "retaining fee," the
purpose of which stems from the realization that the
attorney is disabled from acting as counsel for the other side
after he has given professional advice to the opposite party,
even if he should decline to perform the contemplated
services on behalf of the latter. It is to prevent undue
hardship on the attorney resulting from the rigid observance
of the rule that a separate and independent fee for
consultation and advice was conceived and authorized. "A
retaining fee is a preliminary fee given to an attorney or
counsel to insure and secure his future services, and induce
him to act for the client. It is intended to remunerate counsel
for being deprived, by being retained by one party, of the
opportunity of rendering services to the other and of
receiving pay from him, and the payment of such fee, in the
absence of an express understanding to the contrary, is
neither made nor received in payment of the services
contemplated; its payment has no relation to the obligation
of the client to pay his attorney for the services for which he
has retained him to perform." (Emphasis supplied).
Evidently, the P3,000.00 monthly fee provided in the
retainer agreement between the union and the law firm
refers to a general retainer, or a retaining fee, as said monthly
fee covers only the law firm's pledge, or as expressly stated
therein, its "commitment to render the legal services
enumerated." The fee is not payment for private
respondent's execution or performance of the services listed
in the contract, subject to some particular qualifications or
permutations stated there.
Generally speaking, where the employment of an attorney is
under an express valid contract fixing the compensation for
the attorney, such contract is conclusive as to the amount of
compensation. 30 We cannot, however, apply the foregoing
rule in the instant petition and treat the fixed fee of
P3,000.00 as full and sufficient consideration for private
respondent's services, as petitioner would have it.
We have already shown that the P3,000.00 is independent
and different from the compensation which private
respondent should receive in payment for his services. While
petitioner and private respondent were able to fix a fee for
the latter's promise to extend services, they were not able to
come into agreement as to the law firm's actual performance
of services in favor of the union. Hence, the retainer
agreement cannot control the measure of remuneration for
private respondent's services.
We, therefore, cannot favorably consider the suggestion of
petitioner that private respondent had already waived his
right to charge additional fees because of their failure to
come to an agreement as to its payment.
Firstly, there is no showing that private respondent
unequivocally opted to waive the additional charges in
consonance with Part D of the agreement. Secondly, the
prompt actions taken by private respondent, i.e., serving
notice of charging lien and filing of motion to determine
attorney's fees, belie any intention on his part to renounce
his right to compensation for prosecuting the labor case
instituted by the union. And, lastly, to adopt such theory of
petitioner may frustrate private respondent's right to
attorney's fees, as the former may simply and unreasonably
refuse to enter into any special agreement with the latter and
conveniently claim later that the law firm had relinquished
its right because of the absence of the same.
The fact that petitioner and private respondent failed to
reach a meeting of the minds with regard to the payment of
professional fees for special services will not absolve the
former of civil liability for the corresponding remuneration
therefor in favor of the latter.
Obligations do not emanate only from contracts. 31 One of
the sources of extra-contractual obligations found in our
Civil Code is the quasi-contract premised on the Roman
maxim that nemo cum alterius detrimento locupletari
protest. As embodied in our law, 32 certain lawful, voluntary
and unilateral acts give rise to the juridical relation of quasi-
contract to the end that no one shall be unjustly enriched or
benefited at the expense of another.
A quasi-contract between the parties in the case at bar arose
from private respondent's lawful, voluntary and unilateral
prosecution of petitioner's cause without awaiting the
latter's consent and approval. Petitioner cannot deny that it
did benefit from private respondent's efforts as the law firm
was able to obtain an award of holiday pay differential in
favor of the union. It cannot even hide behind the cloak of the
monthly retainer of P3,000.00 paid to private respondent
because, as demonstrated earlier, private respondent's
actual rendition of legal services is not compensable merely
by said amount.
Private respondent is entitled to an additional remuneration
for pursuing legal action in the interest of petitioner before
the labor arbiter and the NLRC, on top of the P3,000.00
retainer fee he received monthly from petitioner. The law
firm's services are decidedly worth more than such basic fee
in the retainer agreement. Thus, in Part C thereof on "Fee
Structure," it is even provided that all attorney's fees
collected from the adverse party by virtue of a successful
litigation shall belong exclusively to private respondent,
aside from petitioner's liability for appearance fees and
reimbursement of the items of costs and expenses
enumerated therein.
A quasi-contract is based on the presumed will or intent of
the obligor dictated by equity and by the principles of
absolute justice. Some of these principles are: (1) It is
presumed that a person agrees to that which will benefit
him; (2) Nobody wants to enrich himself unjustly at the
expense of another; and (3) We must do unto others what we
want them to do unto us under the same circumstances. 33
As early as 1903, we allowed the payment of reasonable
professional fees to an interpreter, notwithstanding the lack
of understanding with his client as to his remuneration, on
the basis of quasi-contract. 34 Hence, it is not necessary that
the parties agree on a definite fee for the special services
rendered by private respondent in order that petitioner may
be obligated to pay compensation to the former. Equity and
fair play dictate that petitioner should pay the same after it
accepted, availed itself of, and benefited from private
respondent's services.
We are not unaware of the old ruling that a person who had
no knowledge of, nor consented to, or protested against the
lawyer's representation may not be held liable for attorney's
fees even though he benefited from the lawyer's services. 35
But this doctrine may not be applied in the present case as
petitioner did not object to private respondent's appearance
before the NLRC in the case for differentials.
Viewed from another aspect, since it is claimed that
petitioner obtained respondent's legal services and
assistance regarding its claims against the bank, only they
did not enter into a special contract regarding the
compensation therefor, there is at least the innominate
contract of facio ut des (I do that you may give). 36 This rule
of law, likewise founded on the principle against unjust
enrichment, would also warrant payment for the services of
private respondent which proved beneficial to petitioner's
members. In any case, whether there is an agreement or not,
the courts can fix a reasonable compensation which lawyers
should receive for their professional services. 37 However,
the value of private respondent's legal services should not be
established on the basis of Article 111 of the Labor Code
alone. Said article provides:
Art. 111. Attorney's fees. — (a) In cases of unlawful
withholding of wages the culpable party may be assessed
attorney's fees equivalent to ten percent of the amount of the
wages recovered.
xxx xxx xxx
The implementing provision 38 of the foregoing article
further states:
Sec. 11. Attorney's fees. — Attorney's fees in any judicial or
administrative proceedings for the recovery of wages shall
not exceed 10% of the amount awarded. The fees may be
deducted from the total amount due the winning party.
In the first place, the fees mentioned here are the
extraordinary attorney's fees recoverable as indemnity for
damages sustained by and payable to the prevailing part. In
the second place, the ten percent (10%) attorney's fees
provided for in Article 111 of the Labor Code and Section 11,
Rule VIII, Book III of the Implementing Rules is the maximum
of the award that may thus be granted. 39 Article 111 thus
fixes only the limit on the amount of attorney's fees the
victorious party may recover in any judicial or
administrative proceedings and it does not even prevent the
NLRC from fixing an amount lower than the ten percent
(10%) ceiling prescribed by the article when circumstances
warrant it. 40
The measure of compensation for private respondent's
services as against his client should properly be addressed
by the rule of quantum meruit long adopted in this
jurisdiction. Quantum meruit, meaning "as much as he
deserves," is used as the basis for determining the lawyer's
professional fees in the absence of a contract, 41 but
recoverable by him from his client.
Where a lawyer is employed without a price for his services
being agreed upon, the courts shall fix the amount on
quantum meruit basis. In such a case, he would be entitled to
receive what he merits for his services. 42
It is essential for the proper operation of the principle that
there is an acceptance of the benefits by one sought to be
charged for the services rendered under circumstances as
reasonably to notify him that the lawyer performing the task
was expecting to be paid compensation therefor. The
doctrine of quantum meruit is a device to prevent undue
enrichment based on the equitable postulate that it is unjust parties were duly heard by the labor arbiter on the matter
for a person to retain benefit without paying for it. 43 and for the resolution of private respondent's fees.
Over the years and through numerous decisions, this Court It is axiomatic that the reasonableness of attorney's fees is a
has laid down guidelines in ascertaining the real worth of a question of fact. 46 Ordinarily, therefore, we would have
lawyer's services. These factors are now codified in Rule remanded this case for further reception of evidence as to
20.01, Canon 20 of the Code of Professional Responsibility the extent and value of the services rendered by private
and should be considered in fixing a reasonable respondent to petitioner. However, so as not to needlessly
compensation for services rendered by a lawyer on the basis prolong the resolution of a comparatively simple
of quantum meruit. These are: (a) the time spent and the controversy, we deem it just and equitable to fix in the
extent of services rendered or required; (b) the novelty and present recourse a reasonable amount of attorney's fees in
difficulty of the questions involved; (c) the importance of the favor of private respondent. For that purpose, we have duly
subject matter; (d) the skill demanded; (e) the probability of taken into account the accepted guidelines therefor and so
losing other employment as a result of acceptance of the much of the pertinent data as are extant in the records of this
proffered case; (f) the customary charges for similar services case which are assistive in that regard. On such premises and
and the schedule of fees of the IBP chapter to which the in the exercise of our sound discretion, we hold that the
lawyer belongs; (g) the amount involved in the controversy amount of P10,000.00 is a reasonable and fair compensation
and the benefits resulting to the client from the services; (h) for the legal services rendered by private respondent to
the contingency or certainty of compensation; (i) the petitioner before the labor arbiter and the NLRC.
character of the employment, whether occasional or
established; and (j) the professional standing of the lawyer. WHEREFORE, the impugned resolution of respondent
National Labor Relations Commission affirming the order of
Here, then, is the flaw we find in the award for attorney's fees the labor arbiter is MODIFIED, and petitioner is hereby
in favor of private respondent. Instead of adopting the above ORDERED to pay the amount of TEN THOUSAND PESOS
guidelines, the labor arbiter forthwith but erroneously set (P10,000.00) as attorney's fees to private respondent for the
the amount of attorney's fees on the basis of Article 111 of latter's legal services rendered to the former.
the Labor Code. He completely relied on the operation of
Article 111 when he fixed the amount of attorney's fees at SO ORDERED.
P17,574.43. 44 Observe the conclusion stated in his order. 45 Romero, Puno, Mendoza and Torres, Jr., JJ., concur.
xxx xxx xxx
FIRST. Art. 111 of the Labor Code, as amended, clearly
declares movant's right to a ten (10%) per cent of the award
due its client. In addition, this right to ten (10%) per cent
attorney's fees is supplemented by Sec. 111, Rule VIII, Book
III of the Omnibus Rules Implementing the Labor Code, as
amended.
xxx xxx xxx
As already stated, Article 111 of the Labor Code regulates the
amount recoverable as attorney's fees in the nature of
damages sustained by and awarded to the prevailing party.
It may not be used therefore, as the lone standard in fixing
the exact amount payable to the lawyer by his client for the
legal services he rendered. Also, while it limits the maximum
allowable amount of attorney's fees, it does not direct the
instantaneous and automatic award of attorney's fees in such
maximum limit.
It, therefore, behooves the adjudicator in questions and
circumstances similar to those in the case at bar, involving a
conflict between lawyer and client, to observe the above
guidelines in cases calling for the operation of the principles
of quasi-contract and quantum meruit, and to conduct a
hearing for the proper determination of attorney's fees. The
criteria found in the Code of Professional Responsibility are
to be considered, and not disregarded, in assessing the
proper amount. Here, the records do not reveal that the
[G.R. No. 48006. July 8, 1942. ]
FAUSTO BARREDO, Petitioner, v. SEVERINO GARCIA and
TIMOTEA ALMARIO, Respondents.
Celedonio P. Gloria and Antonio Barredo for Petitioner.
Jose G. Advincula for Respondents.
SYLLABUS
1. DAMAGES; QUASI-DELICT OR "CULPA AQUILIANA" ;
PRIMARY AND DIRECT RESPONSIBILITY OF EMPLOYERS
UNDER ARTICLES 1902-1910 OF THE CIVIL CODE. — A
head-on collision between a taxi and a carretela resulted in
the death of a 16-year-old boy, one of the passengers of the
carretela. A criminal action was filed against the taxi driver
and he was convicted and sentenced accordingly. The court
in the criminal case granted the petition that the right to
bring a separate civil action be reserved. Thereafter the
parents of the deceased brought suit for damages against the
proprietor of the taxi, the employer of the taxi driver, under
article 1903 of the Civil Code. Defendant contended that his
liability was governed by the Revised Penal Code, according
to which his responsibility was only secondary, but no civil
action had been brought against the taxi driver. Held: That
this separate civil action lies, the employer being primarily
and directly responsible in damages under articles 1902 and
1903 of the Civil Code.
2. ID.; ID.; ID. — A quasi-delict or "culpa aquiliana" is a
separate legal institution under the Civil Code, with a
substantivity all its own, and individuality that is entirely
apart and independent from a delict or crime. Upon this
principle, and on the wording and spirit of article 1903 of the
Civil Code, the primary and direct responsibility of
employers may be safely anchored.
3. ID.; ID.; ID. — 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 el daño al otro, pero acaescio por su culpa."cralaw
virtua1aw library
4. ID.; ID.; ID. — 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 1902-1910. This portion of the Civil Code is
exclusively devoted to the legal institution of culpa aquiliana.
5. ID.; ID.; ID.; DISTINCTION BETWEEN CRIMES UNDER THE
PENAL CODE AND THE "CULPA AQUILIANA" OR "CUASI-
DELITO" UNDER THE CIVIL CODE. — A distinction exists
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.
Plaintiffs were free to choose which remedy to enforce. Some
of the differences between crimes under the Penal Code and
the culpa aquiliana or cuasi-delito under the Civil Code are
enumerated in the decision.
6. ID.; ID.; ID.; OPINIONS OF JURISTS. — The decision sets out
extracts from opinions of jurists on the separate existence of
cuasi- delicts and the employer’s primary and direct liability
under article 1903 of the Civil Code.
7. ID.; ID.; ID.; SENTENCES OF THE SUPREME TRIBUNAL OF
SPAIN. — The decision cites sentences of the Supreme
Tribunal of Spain upholding the principles above set forth:
that a cuasi-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.
8. ID.; ID.; ID.; DECISIONS OF THIS COURT. — Decisions of
this Court are also cited holding that, 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 his civil liability arising from his crime.
9. ID.; ID.; ID.; FOUNDATIONS OF DOCTRINES ABOVE SET
FORTH; LITERAL MEANING OF THE LAW. — The Revised
Penal Code punishes not only reckless but also simple
negligence; if it should be held that articles 1902-1910, Civil
Code, apply only to negligence not punishable by law, culpa
aquiliana would have very little application in actual life. The
literal meaning of the law will not be used to smother a
principle of such ancient origin and such full-grown
development as culpa aquiliana.
10. ID.; ID.; ID.; ID.; DEGREE OF PROOF. — 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, defendant can and
should be made responsible in a civil action under articles
1902 to 1910, Civil Code. Ubi jus ibi remedium.
11. ID.; ID.; ID.; ID.; EXPEDITIOUS REMEDY. — The primary
and direct responsibility of employer under article 1903,
Civil Code, is more likely to facilitate remedy for civil wrongs.
Such primary and direct responsibility of employers is
calculated to protect society.
12. ID.; ID.; ID.; ID.; PRACTICE OF RELYING SOLELY ON CIVIL
RESPONSIBILITY FOR A CRIME. — The harm done by such
practice is pointed out, and the principle of responsibility for
fault or negligence under articles 1902 et seq., of the Civil
Code is restored to its full vigor.
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.
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
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 -
I
THE PRESENT ACTION IS NOT ONLY AGAINST BUT ALSO A
VIOLATION OF SECTION 1, RULE 107, NOW RULE 111, OF
THE REVISED RULES OF COURT, AND THAT SECTION 3(c)
OF RULE 111, RULES OF COURT IS APPLICABLE;
II
THE ACTION IS BARRED BY A PRIOR JUDGMENT WHICH IS
NOW FINAL OR RES-ADJUDICTA;
III
THE PRINCIPLES OF QUASI-DELICTS, ARTICLES 2176 TO
2194 OF THE CIVIL CODE, ARE INAPPLICABLE IN THE
INSTANT CASE; and
IV
THAT THE COMPLAINT STATES NO CAUSE OF ACTION
AGAINST DEFENDANT MARVIN HILL BECAUSE HE WAS
RELIEVED AS GUARDIAN OF THE OTHER DEFENDANT
THROUGH EMANCIPATION BY MARRIAGE. (page 4, Record.)
It appears that for the killing of the son, Agapito, of plaintiffs-
appellants, defendant- appellee Reginald Hill was
prosecuted criminally in Criminal Case No. 5102 of the Court
of First Instance of Quezon City. After due trial, he was
acquitted on the ground that his act was not criminal because
of "lack of intent to kill, coupled with mistake."
Parenthetically, none of the parties has favored Us with a
copy of the decision of acquittal, presumably because
appellants do not dispute that such indeed was the basis
stated in the court's decision. And so, when appellants filed
their complaint against appellees Reginald and his father,
Atty. Marvin Hill, on account of the death of their son, the
appellees filed the motion to dismiss above-referred to.
As We view the foregoing background of this case, the two
decisive issues presented for Our resolution are:
1. Is the present civil action for damages barred by the
acquittal of Reginald in the criminal case wherein the action
for civil liability, was not reversed?
2. May Article 2180 (2nd and last paragraphs) of the Civil
Code he applied against Atty. Hill, notwithstanding the
undisputed fact that at the time of the occurrence
complained of. Reginald, though a minor, living with and
getting subsistenee from his father, was already legally
married?
The first issue presents no more problem than the need for a
reiteration and further clarification of the dual character,
criminal and civil, of fault or negligence as a source of
obligation which was firmly established in this jurisdiction in
Barredo vs. Garcia, 73 Phil. 607. In that case, this Court
postulated, on the basis of a scholarly dissertation by Justice
Bocobo on the nature of culpa aquiliana in relation to culpa
criminal or delito and 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.
Separate Opinions
AQUINO, J, concurring:
Article 2176 of the Civil Code comprehends any culpable act,
which is blameworthy, when judged by accepted legal
standards. "The Idea thus expressed is undoubtedly board
enough to include any rational conception of liability for the
tortious acts likely to be developed in any society." (Street, J.
in Daywalt vs. Corporacion de PP. Agustinos Recoletos, 39
Phil. 587, 600). See article 38, Civil Code and the ruling that
"the infant tortfeasor is liable in a civil action to the injured
person in the same manner and to the same extent as an
adult" (27 Am. Jur. 812 cited by Bocobo, J., in Magtibay vs.
Tiangco, 74 Phil. 576, 579).
Separate Opinions
AQUINO, J, concurring:

It must be borne in mind that, according to Manresa, the Article 2176 of the Civil Code comprehends any culpable act,
reason behind the joint and solidary liability of presuncion which is blameworthy, when judged by accepted legal
with their offending child under Article 2180 is that is the standards. "The Idea thus expressed is undoubtedly board
obligation of the parent to supervise their minor children in enough to include any rational conception of liability for the
order to prevent them from causing damage to third persons. tortious acts likely to be developed in any society." (Street, J.
5 On the other hand, the clear implication of Article 399, in in Daywalt vs. Corporacion de PP. Agustinos Recoletos, 39
providing that a minor emancipated by marriage may not, Phil. 587, 600). See article 38, Civil Code and the ruling that
nevertheless, sue or be sued without the assistance of the "the infant tortfeasor is liable in a civil action to the injured
parents, is that such emancipation does not carry with it person in the same manner and to the same extent as an
freedom to enter into transactions or do any act that can give adult" (27 Am. Jur. 812 cited by Bocobo, J., in Magtibay vs.
rise to judicial litigation. (See Manresa, Id., Vol. II, pp. 766- Tiangco, 74 Phil. 576, 579).
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.
Fernando (Chairman), Antonio, and Martin, JJ., concur.
Concepcion Jr., J, is on leave.
Martin, J, was designated to sit in the Second Division.
Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. L-32599 June 29, 1979
EDGARDO E. MENDOZA, petitioner
vs.
HON. ABUNDIO Z. ARRIETA, Presiding Judge of Branch VIII,
Court of First Instance of Manila, FELINO TIMBOL, and
RODOLFO SALAZAR, respondents.
David G. Nitafan for petitioner.
Arsenio R. Reyes for respondent Timbol.
Armando M. Pulgado for respondent Salazar.
MELENCIO-HERRERA, J:
Petitioner, Edgardo Mendoza, seeks a review on certiorari of
the Orders of respondent Judge in Civil Case No. 80803
dismissing his Complaint for Damages based on quasi-delict
against respondents Felino Timbol and Rodolfo Salazar.
The facts which spawned the present controversy may be
summarized as follows:
On October 22, 1969, at about 4:00 o'clock in the afternoon,
a three- way vehicular accident occurred along Mac-Arthur
Highway, Marilao, Bulacan, involving a Mercedes Benz
owned and driven by petitioner; a private jeep owned and
driven by respondent Rodolfo Salazar; and a gravel and sand
truck owned by respondent Felipino Timbol and driven by
Freddie Montoya. As a consequence of said mishap, two
separate Informations for Reckless Imprudence Causing
Damage to Property were filed against Rodolfo Salazar and
Freddie Montoya with the Court of First Instance of Bulacan.
The race against truck-driver Montoya, docketed as Criminal
Case No. SM-227, was for causing damage to the jeep owned
by Salazar, in the amount of Pl,604.00, by hitting it at the
right rear portion thereby causing said jeep to hit and bump
an oncoming car, which happened to be petitioner's
Mercedes Benz. The case against jeep-owner-driver Salazar,
docketed as Criminal Case No. SM 228, was for causing
damage to the Mercedes Benz of petitioner in the amount of
P8,890.00
At the joint trial of the above cases, petitioner testified that
jeep-owner- driver Salazar overtook the truck driven by
Montoya, swerved to the left going towards the poblacion of
Marilao, and hit his car which was bound for Manila.
Petitioner further testified that before the impact, Salazar
had jumped from the jeep and that he was not aware that
Salazar's jeep was bumped from behind by the truck driven
by Montoya. Petitioner's version of the accident was adopted
by truck driver Montoya. Jeep-owner-driver Salazar, on the
other hand, tried to show that, after overtaking the truck
driven by Montoya, he flashed a signal indicating his
intention to turn left towards the poblacion of Marilao but
was stopped at the intersection by a policeman who was
directing traffic; that while he was at a stop position, his jeep
was bumped at the rear by the truck driven by Montova
causing him to be thrown out of the jeep, which then swerved
to the left and hit petitioner's car, which was coming from the
opposite direction.
On July 31, 1970, the Court of First Instance of Bulacan,
Branch V, Sta. Maria, rendered judgment, stating in its
decretal portion:
IN VIEW OF THE FOREGOING, this Court finds the accused
Freddie Montoya GUILTY beyond reasonable doubt of the
crime of damage to property thru reckless imprudence in
Crime. Case No. SM-227, and hereby sentences him to pay a
fine of P972.50 and to indemnify Rodolfo Salazar in the same
amount of P972.50 as actual damages, with subsidiary
imprisonment in case of insolvency, both as to fine and
indemnity, with costs.
Accused Rodolfo Salazar is hereby ACQUITTED from the
offense charged in Crime. Case No. SM-228, with costs de
oficio, and his bond is ordered canceled
SO ORDERED. 1
Thus, the trial Court absolved jeep-owner-driver Salazar of
any liability, civil and criminal, in view of its findings that the
collision between Salazar's jeep and petitioner's car was the
result of the former having been bumped from behind by the
truck driven by Montoya. Neither was petitioner awarded
damages as he was not a complainant against truck-driver
Montoya but only against jeep-owner-driver Salazar.
On August 22, 1970, or after the termination of the criminal
cases, petitioner filed Civil Case No. 80803 with the Court of
First Instance of Manila against respondents jeep-owner-
driver Salazar and Felino Timbol, the latter being the owner
of the gravel and sand truck driven by Montoya, for
indentification for the damages sustained by his car as a
result of the collision involving their vehicles. Jeep-owner-
driver Salazar and truck-owner Timbol were joined as
defendants, either in the alternative or in solidum allegedly
for the reason that petitioner was uncertain as to whether he
was entitled to relief against both on only one of them.
On September 9, 1970, truck-owner Timbol filed a Motion to
Dismiss Civil Case No. 80803 on the grounds that the
Complaint is barred by a prior judgment in the criminal cases
and that it fails to state a cause of action. An Opposition
thereto was filed by petitioner.
In an Order dated September 12, 1970, respondent Judge
dismissed the Complaint against truck-owner Timbol for
reasons stated in the afore- mentioned Motion to Dismiss On
September 30, 1970, petitioner sought before this Court the
review of that dismissal, to which petition we gave due
course.
On January 30, 1971, upon motion of jeep-owner-driver
Salazar, respondent Judge also dismissed the case as against
the former. Respondent Judge reasoned out that "while it is
true that an independent civil action for liability under
Article 2177 of the Civil Code could be prosecuted
independently of the criminal action for the offense from
which it arose, the New Rules of Court, which took effect on
January 1, 1964, requires an express reservation of the civil
action to be made in the criminal action; otherwise, the same
would be barred pursuant to Section 2, Rule 111 ... 2
Petitioner's Motion for Reconsideration thereof was denied
in the order dated February 23, 1971, with respondent Judge
suggesting that the issue be raised to a higher Court "for a
more decisive interpretation of the rule. 3
On March 25, 1971, petitioner then filed a Supplemental
Petition before us, also to review the last two mentioned
Orders, to which we required jeep-owner-driver Salazar to
file an Answer.
The Complaint against
truck-owner Timbol
We shall first discuss the validity of the Order, dated
September 12, 1970, dismissing petitioner's Complaint
against truck-owner Timbol.
In dismissing the Complaint against the truck-owner,
respondent Judge sustained Timbol's allegations that the
civil suit is barred by the prior joint judgment in Criminal
Cases Nos. SM-227 and SM-228, wherein no reservation to
file a separate civil case was made by petitioner and where
the latter actively participated in the trial and tried to prove
damages against jeep-driver-Salazar only; and that the
Complaint does not state a cause of action against truck-
owner Timbol inasmuch as petitioner prosecuted jeep-
owner-driver Salazar as the one solely responsible for the
damage suffered by his car.
Well-settled is the rule that for a prior judgment to constitute
a bar to a subsequent case, the following requisites must
concur: (1) it must be a final judgment; (2) it must have been
rendered by a Court having jurisdiction over the subject
matter and over the parties; (3) it must be a judgment on the
merits; and (4) there must be, between the first and second
actions, Identity of parties, Identity of subject matter and
Identity of cause of action.
It is conceded that the first three requisites of res judicata are
present. However, we agree with petitioner that there is no
Identity of cause of action between Criminal Case No. SM-227
and Civil Case No. 80803. Obvious is the fact that in said
criminal case truck-driver Montoya was not prosecuted for
damage to petitioner's car but for damage to the jeep.
Neither was truck-owner Timbol a party in said case. In fact
as the trial Court had put it "the owner of the Mercedes Benz
cannot recover any damages from the accused Freddie
Montoya, he (Mendoza) being a complainant only against
Rodolfo Salazar in Criminal Case No. SM-228. 4 And more
importantly, in the criminal cases, the cause of action was the
enforcement of the civil liability arising from criminal
negligence under Article l of the Revised Penal Code,
whereas Civil Case No. 80803 is based on quasi-delict under
Article 2180, in relation to Article 2176 of the Civil Code As
held in Barredo vs. Garcia, et al. 5
The foregoing authorities clearly demonstrate the separate
in. individuality of cuasi-delitos or culpa aquiliana under the
Civil Code. Specifically they show that there is a distinction
between civil liability arising from criminal negligence
(governed by the Penal Code) and responsibility for fault or
negligence under articles 1902 to 1910 of the Civil Code, and
that the same negligent act may produce either a civil
liability arising from a crime under the Penal Code, or a
separate responsibility for fault or negligence under articles
1902 to 1910 of the Civil Code. Still more concretely, the
authorities above cited render it inescapable to conclude
that the employer in this case the defendant- petitioner is
primarily and directly liable under article 1903 of the Civil
Code.
That petitioner's cause of action against Timbol in the civil
case is based on quasi-delict is evident from the recitals in
the complaint to wit: that while petitioner was driving his car
along MacArthur Highway at Marilao, Bulacan, a jeep owned
and driven by Salazar suddenly swerved to his (petitioner's)
lane and collided with his car That the sudden swerving of
Salazar's jeep was caused either by the negligence and lack
of skill of Freddie Montoya, Timbol's employee, who was
then driving a gravel and sand truck iii the same direction as
Salazar's jeep; and that as a consequence of the collision,
petitioner's car suffered extensive damage amounting to
P12,248.20 and that he likewise incurred actual and moral
damages, litigation expenses and attorney's fees. Clearly,
therefore, the two factors that a cause of action must consist
of, namely: (1) plaintiff's primary right, i.e., that he is the
owner of a Mercedes Benz, and (2) defendant's delict or
wrongful act or omission which violated plaintiff's primary
right, i.e., the negligence or lack of skill either of jeep-owner
Salazar or of Timbol's employee, Montoya, in driving the
truck, causing Salazar's jeep to swerve and collide with
petitioner's car, were alleged in the Complaint. 6
Consequently, petitioner's cause of action being based on
quasi-delict, respondent Judge committed reversible error
when he dismissed the civil suit against the truck-owner, as
said case may proceed independently of the criminal
proceedings and regardless of the result of the latter.
Art. 31. When the civil action is based on an obligation not
arising from the act or omission complained of as a felony,
such civil action may proceed independently of the criminal
proceedings and regardless of the result of the latter.
But it is truck-owner Timbol's submission (as well as that of
jeep-owner-driver Salazar) that petitioner's failure to make
a reservation in the criminal action of his right to file an
independent civil action bars the institution of such separate
civil action, invoking section 2, Rule 111, Rules of Court,
which says:
Section 2. — Independent civil action. — In the cases
provided for in Articles 31, 32, 33, 34 and 2177 of the Civil
Code of the Philippines, an independent civil action entirely
separate and distinct from the criminal action may be
brought by the injured party during the pendency of the
criminal case, provided the right is reserved as required in
the preceding section. Such civil action shau proceed
independently of the criminal prosecution, and shall require
only a preponderance of evidence.
Interpreting the above provision, this Court, in Garcia vs.
Florida 7 said:
As we have stated at the outset, the same negligent act
causing damages may produce a civil liability arising from
crime or create an action for quasi-delict or culpa extra-
contractual. The former is a violation of the criminal law,
while the latter is a distinct and independent negligence,
having always had its own foundation and individuality.
Some legal writers are of the view that in accordance with
Article 31, the civil action based upon quasi-delict may
proceed independently of the criminal proceeding for
criminal negligence and regardless of the result of the latter.
Hence, 'the proviso in Section 2 of Rule 111 with reference to
... Articles 32, 33 and 34 of the Civil Code is contrary to the
letter and spirit of the said articles, for these articles were
drafted ... and are intended to constitute as exceptions to the
general rule stated in what is now Section 1 of Rule 111. The
proviso, which is procedural, may also be regarded as an
unauthorized amendment of substantive law, Articles 32, 33
and 34 of the Civil Code, which do not provide for the
reservation required in the proviso ... .
In his concurring opinion in the above case, Mr. Justice
Antonio Barredo further observed that inasmuch as Articles
2176 and 2177 of the Civil Code create a civil liability distinct
and different from the civil action arising from the offense of
negligence under the Revised Penal Code, no reservation,
therefore, need be made in the criminal case; that Section 2
of Rule 111 is inoperative, "it being substantive in character
and is not within the power of the Supreme Court to
promulgate; and even if it were not substantive but adjective,
it cannot stand because of its inconsistency with Article
2177, an enactment of the legislature superseding the Rules
of 1940."
We declare, therefore, that in so far as truck-owner Timbol is
concerned, Civil Case No. 80803 is not barred by the fact that
petitioner failed to reserve, in the criminal action, his right to
file an independent civil action based on quasi-delict.
The suit against
jeep-owner-driver Salazar
The case as against jeep-owner-driver Salazar, who was
acquitted in Criminal Case No. SM-228, presents a different
picture altogether.
At the outset it should be clarified that inasmuch as civil
liability co-exists with criminal responsibility in negligence
cases, the offended party has the option between an action
for enforcement of civil liability based on culpa criminal
under Article 100 of the Revised Penal Code, and an action
for recovery of damages based on culpa aquiliana under
Article 2177 of the Civil Code. The action for enforcement of
civil liability based on culpa criminal under section 1 of Rule
111 of the Rules of Court is deemed simultaneously
instituted with the criminal action, unless expressly waived
or reserved for separate application by the offended party. 8
The circumstances attendant to the criminal case yields the
conclusion that petitioner had opted to base his cause of
action against jeep-owner-driver Salazar on culpa criminal
and not on culpa aquiliana as evidenced by his active
participation and intervention in the prosecution of the
criminal suit against said Salazar. The latter's civil liability
continued to be involved in the criminal action until its
termination. Such being the case, there was no need for
petitioner to have reserved his right to file a separate civil
action as his action for civil liability was deemed impliedly
instituted in Criminal Case No. SM-228.
Neither would an independent civil action he. Noteworthy is
the basis of the acquittal of jeep-owner-driver Salazar in the
criminal case, expounded by the trial Court in this wise:
In view of what has been proven and established during the
trial, accused Freddie Montoya would be held able for having
bumped and hit the rear portion of the jeep driven by the
accused Rodolfo Salazar,
Considering that the collision between the jeep driven by
Rodolfo Salazar and the car owned and driven by Edgardo
Mendoza was the result of the hitting on the rear of the jeep
by the truck driven by Freddie Montoya, this Court behaves
that accused Rodolfo Salazar cannot be held able for the
damages sustained by Edgardo Mendoza's car. 9
Crystal clear is the trial Court's pronouncement that under
the facts of the case, jeep-owner-driver Salazar cannot be
held liable for the damages sustained by petitioner's car. In
other words, "the fact from which the civil might arise did not
exist. " Accordingly, inasmuch as petitioner's cause of action
as against jeep-owner-driver Salazar is ex- delictu, founded
on Article 100 of the Revised Penal Code, the civil action must
be held to have been extinguished in consonance with
Section 3(c), Rule 111 of the Rules of Court 10 which
provides:
Sec. 3. Other civil actions arising from offenses. — In all cases
not included in the preceding section the following rules
shall be observed:
xxx xxx xxx
c) Extinction of the penal action does not carry with it
extinction of the civil, unless the extinction proceeds from a
declaration in a final judgment that the fact from which the
civil night arise did not exist. ...
And even if petitioner's cause of action as against jeep-
owner-driver Salazar were not ex-delictu, the end result
would be the same, it being clear from the judgment in the
criminal case that Salazar's acquittal was not based upon
reasonable doubt, consequently, a civil action for damages
can no longer be instituted. This is explicitly provided for in
Article 29 of the Civil Code quoted here under:
Art. 29. When the accused in a criminal prosecution is
acquitted on the ground that his guilt has not been proved
beyond reasonable doubt, a civil action for damages for the
same act or omission may be instituted. Such action requires
only a preponderance of evidence ...
If in a criminal case the judgment of acquittal is based upon
reasonable doubt, the court shall so declare. In the absence
of any declaration to that effect, it may be inferred from the
text of the decision whether or not the acquittal is due to that
ground.
In so far as the suit against jeep-owner-driver Salazar is
concerned, therefore, we sustain respondent Judge's Order
dated January 30, 1971 dismissing the complaint, albeit on
different grounds.
WHEREFORE, 1) the Order dated September 12, 1970
dismissing Civil Case No. 80803 against private respondent
Felino Timbol is set aside, and respondent Judge, or his
successor, hereby ordered to proceed with the hearing on
the merits; 2) but the Orders dated January 30, 1971 and
February 23, 1971 dismissing the Complaint in Civil Case No.
80803 against respondent Rodolfo Salazar are hereby
upheld.
No costs.
SO ORDERED.
Teehankee, (Chairman), Makasiar, Fernandez, Guerrero and
De Castro, JJ., concur.
[G.R. No. L-21438. September 28, 1966.]
AIR FRANCE, Petitioner, v. RAFAEL CARRASCOSO and THE
HONORABLE COURT OF APPEALS, Respondents.
Lichauco, Picazo & Agcaoili for Petitioner.
Bengzon, Villegas & Zarraga for respondent R. Carrascoso.
SYLLABUS
1. JUDGMENT; FINDINGS OF FACT; REQUIREMENT OF LAW.
— Courts of justice are not burdened with the obligation to
specify in the sentence every bit and piece of evidence
presented by the parties upon the issues raised. The law
solely insists that a decision state the "essential ultimate
facts" upon which the court’s conclusion is drawn.
2. ID.; ID.; ID.; APPEAL AND ERROR; FAILURE TO MAKE
FINDINGS ON EVIDENCE AND CONTENTIONS OF ONE
PARTY, EFFECT OF; DECISION NOT TO BE CLOGGED WITH
DETAILS. — The mere failure to make specific findings of fact
on the evidence presented for the defense or 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 requirement of the law and the Constitution.
There is no law that so requires. A decision is not to be
clogged with details such that prolixity, if not confusion, may
result.
3. ID.; ID.; ID.; FINDINGS OF FACT BY COURTS DEFINED. —
Findings of fact may be defined as the written statement of
the ultimate facts as found by the court and essential to
support the decision and judgment rendered thereon; they
consist of the court’s "conclusions with respect to the
determinative facts on issue."cralaw virtua1aw library
4. ID.; ID.; ID.; QUESTION OF LAW EXPLAINED. — A question
of law is "one which does not call for an examination of the
probative value of the evidence presented by the
parties."cralaw virtua1aw library
5. PLEADING AND PRACTICE; APPEAL; WHAT MAY BE
RAISED ON APPEAL FROM COURT OF APPEALS. — It is not
appropriately the business of the Supreme Court to alter the
facts or to review the questions of fact because, by statute,
only questions of law may be raised in an appeal by certiorari
from a judgment of the Court of Appeals, which judgment is
conclusive as to the facts.
6. ID.; ID.; EFFECT OF AFFIRMANCE BY COURT OF APPEALS
OF TRIAL COURT’S DECISION. — When the Court of Appeals
affirms a judgment of the trial court, and the findings of fact
of said appellate court are not in any way at war with those
of the trial court, nor is said affirmance upon a ground or
grounds different from those which were made the basis of
the trial court’s conclusions, such judgment of affirmance is
(1) a determination by the Court of Appeals that the
proceeding in the lower court was free from prejudicial
error; (7) that all questions raised by the assignments of
error and all questions that might have been so raised have
been finally adjudicated as free from all error.
7. ID.; COMPLAINT; SPECIFIC MENTION OF THE TERM "BAD
FAITH" IN THE COMPLAINT NOT REQUIRED. — Although
there is no specific mention of the term bad faith in the
complaint, the inference of bad faith may be drawn from the
facts and circumstances set forth therein. 8. EVIDENCE;
FINDING OF COURT OF APPEALS THAT RESPONDENT WAS
ENTITLED TO A FIRST CLASS SEAT. — The Court of Appeals
properly found that a first class-ticket holder is entitled to
first class seat, given the fact that seat availability in specific
flights is therein confirmed; otherwise, an air passenger will
be placed in the hollow of the hands of an airline, because it
will always be easy for an airline to strike out the very
stipulations in the ticket and say that there was verbal
agreement to the contrary. If only to achieve stability in the
relations between passenger and air carrier, adherence to
the ticket so issued is desirable.
9. ID.; LACK OF SPECIFIC AVERMENT OF BAD FAITH CURED
BY NOTICE TO DEFENDANT OF WHAT PLAINTIFF INTENDS
TO PROVE AND BY EVIDENCE PRESENTED WITHOUT
OBJECTION; AMENDMENT OF COMPLAINT TO CONFORM
TO EVIDENCE UNNECESSARY. — If there was lack of specific
averment of bad faith in the complaint, such deficiency was
cured by notice, right at the start of the trial, by plaintiff’s
counsel to defendant as to what plaintiff intended to prove:
while in the plane in Bangkok, plaintiff was ousted by
defendant’s manager who gave his seat to a white man; and
by evidence of bad faith in the fulfillment of the contract
presented without objection on the part of the defendant. An
amendment of the complaint to conform to the evidence is
not even required.
10. ID.; ADMISSIBILITY OF TESTIMONY ON AN ENTRY IN A
NOTEBOOK; TESTIMONY NOT COVERED BY BEST
EVIDENCE RULE. — The testimony of a witness 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 competent and
admissible because the subject of the inquiry is not the entry
but the ouster incident. It does not come within the
prescription of the best evidence rule.
11. CONTRACT OF CARRIAGE; QUASI-DELICT; LIABILITY OF
COMMON CARRIERS; CASE AT BAR. — Neglect or
malfeasance of the carrier’s employees could give ground for
an action for damages. Damages here are proper because the
stress of respondent’s action is placed upon his wrongful
expulsion, which is a violation of a public duty by petitioner-
aircarrier — a case of quasi-delict.
12. ID.; ID.; ID.; AWARD OF MORAL DAMAGES FOR BREACH
OF CONTRACT. — Award of moral damages is proper,
despite petitioner’s argument that respondent’s action is
planted upon breach of contract, where the stress of the
action is put on wrongful expulsion, the contract having been
averred only to establish the relation between the parties.
13. ID.; ID.; ID.; EMPLOYER IS RESPONSIBLE FOR TORTIOUS
ACTS OF HIS EMPLOYEE; CASE AT BAR. — The
responsibility of an employer for the tortious act of his
employees is well settled in law. (Art. 2130, Civil Code).
Petitioner-aircarrier must answer for the willful, malevolent
act of its manager.
14. ID.; ID.; ID.; LIABILITY FOR EXEMPLARY DAMAGES;
POWER OF COURTS TO GRANT; CASE AT BAR. — The Civil
Code gives the court ample power to grant exemplary
damages, the only condition being that defendant should
have "acted in a wanton, fraudulent, reckless, oppressive, or
malevolent manner." As the manner of ejectment of plaintiff
from his first class seat fits into this legal precept, exemplary
damages are well awarded, in addition to moral damages.
15. ID.; ID.; LIABILITY FOR ATTORNEY’S FEES; COURT
DISCRETION WELL EXERCISED SHOULD NOT BE
DISTURBED. — The grant of exemplary damages justifies a
similar judgment for attorney’s fees. The court below felt
that it is but just and equitable that attorney’s fees be given
and the Supreme Court does not intend to break faith with
the tradition that discretion well-exercised — as it is here
should not be disturbed.
16. ID.; RIGHTS OF PASSENGERS. — 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, any rude or
discourteous conduct on the part of employees towards a
passenger gives the latter an action for damages against the
carrier. (4 R. C. L-1174-1175).
17. ID.; BREACH OF CONTRACT MAY BE A TORT. — Although
the relation of passenger and carrier is contractual both in
origin and nature, nevertheless, the act that breaks the
contract may also be a tort.
18. WORDS AND PHRASES; BAD FAITH DEFINED. — "Bad
faith", as understood in law, contemplates a state of mind
affirmatively operating with furtive design or with some
motive of self-interest or ill will or for ulterior purpose
SANCHEZ, J.:
The Court of First Instance of Manila 1 sentenced petitioner
to pay respondent Rafael Carrascoso P25,000.00 by way of
moral damages; P10,000.00 as exemplary damages; P393.20
representing the difference in fare between first class and
tourist class for the portion of the trip Bangkok-Rome, these
various amounts with interest at the legal rate, from the date
of the filing of the complaint until paid; plus P3,000.00 for
attorneys' fees; and the costs of suit.
On appeal,2 the Court of Appeals slightly reduced the amount
of refund on Carrascoso's plane ticket from P393.20 to
P383.10, and voted to affirm the appealed decision "in all
other respects", with costs against petitioner.
The case is now before us for review on certiorari.
The facts declared by the Court of Appeals as " fully
supported by the evidence of record", are:
Plaintiff, a civil engineer, was a member of a group of 48
Filipino pilgrims that left Manila for Lourdes on March 30,
1958.
On March 28, 1958, the defendant, Air France, through its
authorized agent, Philippine Air Lines, Inc., issued to plaintiff
a "first class" round trip airplane ticket from Manila to Rome.
From Manila to Bangkok, plaintiff travelled in "first class",
but at Bangkok, the Manager of the defendant airline forced
plaintiff to vacate the "first class" seat that he was occupying
because, in the words of the witness Ernesto G. Cuento, there
was a "white man", who, the Manager alleged, had a "better
right" to the seat. When asked to vacate his "first class" seat,
the plaintiff, as was to be expected, refused, and told
defendant's Manager that his seat would be taken over his
dead body; a commotion ensued, and, according to said
Ernesto G. Cuento, "many of the Filipino passengers got
nervous in the tourist class; when they found out that Mr.
Carrascoso was having a hot discussion with the white man
[manager], they came all across to Mr. Carrascoso and
pacified Mr. Carrascoso to give his seat to the white man"
(Transcript, p. 12, Hearing of May 26, 1959); and plaintiff
reluctantly gave his "first class" seat in the plane.3
1. The trust of the relief petitioner now seeks is that we
review "all the findings" 4 of respondent Court of Appeals.
Petitioner charges that respondent court failed to make
complete findings of fact on all the issues properly laid
before it. We are asked to consider facts favorable to
petitioner, and then, to overturn the appellate court's
decision.
Coming into focus is the constitutional mandate that "No
decision shall be rendered by any court of record without
expressing therein clearly and distinctly the facts and the law
on which it is based". 5 This is echoed in the statutory
demand that a judgment determining the merits of the case
shall state "clearly and distinctly the facts and the law on
which it is based"; 6 and that "Every decision of the Court of
Appeals shall contain complete findings of fact on all issues
properly raised before it". 7
A decision with absolutely nothing to support it is a nullity.
It is open to direct attack. 8 The law, however, solely insists
that a decision state the "essential ultimate facts" upon which
the court's conclusion is drawn. 9 A court of justice is not
hidebound to write in its decision every bit and piece of
evidence 10 presented by one party and the other upon the
issues raised. Neither is it to be burdened with the obligation
"to specify in the sentence the facts" which a party
"considered as proved". 11 This is but a part of the mental
process from which the Court draws the essential ultimate
facts. A decision is not to be so clogged with details such that
prolixity, if not confusion, may result. So long as the decision
of the Court of Appeals contains the necessary facts to
warrant its conclusions, it is no error for said court to
withhold therefrom "any specific finding of facts with respect
to the evidence for the defense". Because as this Court well
observed, "There is no law that so requires". 12 Indeed, "the
mere failure to specify (in the decision) the contentions of
the appellant and the reasons for refusing to believe them is
not sufficient to hold the same contrary to the requirements
of the provisions of law and the Constitution". It is in this
setting that in Manigque, it was held that the mere fact that
the findings "were based entirely on the evidence for the
prosecution without taking into consideration or even
mentioning the appellant's side in the controversy as shown
by his own testimony", would not vitiate the judgment. 13 If
the court did not recite in the decision the testimony of each
witness for, or each item of evidence presented by, the
defeated party, it does not mean that the court has
overlooked such testimony or such item of evidence. 14 At
any rate, the legal presumptions are that official duty has
been regularly performed, and that all the matters within an
issue in a case were laid before the court and passed upon by
it. 15
Findings of fact, which the Court of Appeals is required to
make, maybe defined as "the written statement of the
ultimate facts as found by the court ... and essential to
support the decision and judgment rendered thereon". 16
They consist of the court's "conclusions" with respect to the
determinative facts in issue". 17 A question of law, upon the
other hand, has been declared as "one which does not call for
an examination of the probative value of the evidence
presented by the parties." 18
2. By statute, "only questions of law may be raised" in an
appeal by certiorari from a judgment of the Court of Appeals.
19 That judgment is conclusive as to the facts. It is not
appropriately the business of this Court to alter the facts or
to review the questions of fact. 20
With these guideposts, we now face the problem of whether
the findings of fact of the Court of Appeals support its
judgment.
3. Was Carrascoso entitled to the first class seat he claims?
It is conceded in all quarters that on March 28, 1958 he paid
to and received from petitioner a first class ticket. But
petitioner asserts that said ticket did not represent the true
and complete intent and agreement of the parties; that said
respondent knew that he did not have confirmed
reservations for first class on any specific flight, although he
had tourist class protection; that, accordingly, the issuance of
a first class ticket was no guarantee that he would have a first
class ride, but that such would depend upon the availability
of first class seats.
These are matters which petitioner has thoroughly
presented and discussed in its brief before the Court of
Appeals under its third assignment of error, which reads:
"The trial court erred in finding that plaintiff had confirmed
reservations for, and a right to, first class seats on the
"definite" segments of his journey, particularly that from
Saigon to Beirut". 21
And, the Court of Appeals disposed of this contention thus:
Defendant seems to capitalize on the argument that the
issuance of a first-class ticket was no guarantee that the
passenger to whom the same had been issued, would be
accommodated in the first-class compartment, for as in the
case of plaintiff he had yet to make arrangements upon
arrival at every station for the necessary first-class
reservation. We are not impressed by such a reasoning. We
cannot understand how a reputable firm like defendant
airplane company could have the indiscretion to give out
tickets it never meant to honor at all. It received the
corresponding amount in payment of first-class tickets and
yet it allowed the passenger to be at the mercy of its
employees. It is more in keeping with the ordinary course of
business that the company should know whether or riot the
tickets it issues are to be honored or not.22
Not that the Court of Appeals is alone. The trial court
similarly disposed of petitioner's contention, thus:
On the fact that plaintiff paid for, and was issued a "First
class" ticket, there can be no question. Apart from his
testimony, see plaintiff's Exhibits "A", "A-1", "B", "B-1," "B-2",
"C" and "C-1", and defendant's own witness, Rafael Altonaga,
confirmed plaintiff's testimony and testified as follows:
Q. In these tickets there are marks "O.K." From what you
know, what does this OK mean?
A. That the space is confirmed.
Q. Confirmed for first class?
A. Yes, "first class". (Transcript, p. 169)
xxx xxx xxx
Defendant tried to prove by the testimony of its witnesses
Luis Zaldariaga and Rafael Altonaga that although plaintiff
paid for, and was issued a "first class" airplane ticket, the
ticket was subject to confirmation in Hongkong. The court
cannot give credit to the testimony of said witnesses. Oral
evidence cannot prevail over written evidence, and plaintiff's
Exhibits "A", "A-l", "B", "B-l", "C" and "C-1" belie the
testimony of said witnesses, and clearly show that the
plaintiff was issued, and paid for, a first class ticket without
any reservation whatever.
Furthermore, as hereinabove shown, defendant's own
witness Rafael Altonaga testified that the reservation for a
"first class" accommodation for the plaintiff was confirmed.
The court cannot believe that after such confirmation
defendant had a verbal understanding with plaintiff that the
"first class" ticket issued to him by defendant would be
subject to confirmation in Hongkong. 23
We have heretofore adverted to the fact that except for a
slight difference of a few pesos in the amount refunded on
Carrascoso's ticket, the decision of the Court of First Instance
was affirmed by the Court of Appeals in all other respects.
We hold the view that such a judgment of affirmance has
merged the judgment of the lower court. 24 Implicit in that
affirmance is a determination by the Court of Appeals that
the proceeding in the Court of First Instance was free from
prejudicial error and "all questions raised by the
assignments of error and all questions that might have been
raised are to be regarded as finally adjudicated against the
appellant". So also, the judgment affirmed "must be regarded
as free from all error". 25 We reached this policy
construction because nothing in the decision of the Court of
Appeals on this point would suggest that its findings of fact
are in any way at war with those of the trial court. Nor was
said affirmance by the Court of Appeals upon a ground or
grounds different from those which were made the basis of
the conclusions of the trial court. 26
If, as petitioner underscores, a first-class-ticket holder is not
entitled to a first class seat, notwithstanding the fact that seat
availability in specific flights is therein confirmed, then an air
passenger is placed in the hollow of the hands of an airline.
What security then can a passenger have? It will always be
an easy matter for an airline aided by its employees, to strike
out the very stipulations in the ticket, and say that there was
a verbal agreement to the contrary. What if the passenger
had a schedule to fulfill? We have long learned that, as a rule,
a written document speaks a uniform language; that spoken
word could be notoriously unreliable. If only to achieve
stability in the relations between passenger and air carrier,
adherence to the ticket so issued is desirable. Such is the case
here. The lower courts refused to believe the oral evidence
intended to defeat the covenants in the ticket.
The foregoing are the considerations which point to the
conclusion that there are facts upon which the Court of
Appeals predicated the finding that respondent Carrascoso
had a first class ticket and was entitled to a first class seat at
Bangkok, which is a stopover in the Saigon to Beirut leg of
the flight. 27 We perceive no "welter of distortions by the
Court of Appeals of petitioner's statement of its position", as
charged by petitioner. 28 Nor do we subscribe to petitioner's
accusation that respondent Carrascoso "surreptitiously took
a first class seat to provoke an issue". 29 And this because, as
petitioner states, Carrascoso went to see the Manager at his
office in Bangkok "to confirm my seat and because from
Saigon I was told again to see the Manager". 30 Why, then,
was he allowed to take a first class seat in the plane at
Bangkok, if he had no seat? Or, if another had a better right
to the seat?
4. Petitioner assails respondent court's award of moral
damages. Petitioner's trenchant claim is that Carrascoso's
action is planted upon breach of contract; that to authorize
an award for moral damages there must be an averment of
fraud or bad faith;31 and that the decision of the Court of
Appeals fails to make a finding of bad faith. The pivotal
allegations in the complaint bearing on this issue are:
3. That ... plaintiff entered into a contract of air carriage with
the Philippine Air Lines for a valuable consideration, the
latter acting as general agents for and in behalf of the
defendant, under which said contract, plaintiff was entitled
to, as defendant agreed to furnish plaintiff, First Class
passage on defendant's plane during the entire duration of
plaintiff's tour of Europe with Hongkong as starting point up
to and until plaintiff's return trip to Manila, ... .
4. That, during the first two legs of the trip from Hongkong to
Saigon and from Saigon to Bangkok, defendant furnished to
the plaintiff First Class accommodation but only after
protestations, arguments and/or insistence were made by
the plaintiff with defendant's employees.
5. That finally, defendant failed to provide First Class
passage, but instead furnished plaintiff only Tourist Class
accommodations from Bangkok to Teheran and/or
Casablanca, ... the plaintiff has been compelled by
defendant's employees to leave the First Class
accommodation berths at Bangkok after he was already
seated.
6. That consequently, the plaintiff, desiring no repetition of
the inconvenience and embarrassments brought by
defendant's breach of contract was forced to take a Pan
American World Airways plane on his return trip from
Madrid to Manila.32
xxx xxx xxx
2. That likewise, as a result of defendant's failure to furnish
First Class accommodations aforesaid, plaintiff suffered
inconveniences, embarrassments, and humiliations, thereby
causing plaintiff mental anguish, serious anxiety, wounded
feelings, social humiliation, and the like injury, resulting in
moral damages in the amount of P30,000.00. 33
xxx xxx xxx
The foregoing, in our opinion, substantially aver: First, That
there was a contract to furnish plaintiff a first class passage
covering, amongst others, the Bangkok-Teheran leg; Second,
That said contract was breached when petitioner failed to
furnish first class transportation at Bangkok; and Third, that
there was bad faith when petitioner's employee compelled
Carrascoso to leave his first class accommodation berth
"after he was already, seated" and to take a seat in the tourist
class, by reason of which he suffered inconvenience,
embarrassments and humiliations, thereby causing him
mental anguish, serious anxiety, wounded feelings and social
humiliation, resulting in moral damages. It is true that there
is no specific mention of the term bad faith in the complaint.
But, the inference of bad faith is there, it may be drawn from
the facts and circumstances set forth therein. 34 The contract
was averred to establish the relation between the parties.
But the stress of the action is put on wrongful expulsion.
Quite apart from the foregoing is that (a) right the start of the
trial, respondent's counsel placed petitioner on guard on
what Carrascoso intended to prove: That while sitting in the
plane in Bangkok, Carrascoso was ousted by petitioner's
manager who gave his seat to a white man; 35 and (b)
evidence of bad faith in the fulfillment of the contract was
presented without objection on the part of the petitioner. It
is, therefore, unnecessary to inquire as to whether or not
there is sufficient averment in the complaint to justify an
award for moral damages. Deficiency in the complaint, if any,
was cured by the evidence. An amendment thereof to
conform to the evidence is not even required. 36 On the
question of bad faith, the Court of Appeals declared:
That the plaintiff was forced out of his seat in the first class
compartment of the plane belonging to the defendant Air
France while at Bangkok, and was transferred to the tourist
class not only without his consent but against his will, has
been sufficiently established by plaintiff in his testimony
before the court, corroborated by the corresponding entry
made by the purser of the plane in his notebook which
notation reads as follows:
"First-class passenger was forced to go to the tourist class
against his will, and that the captain refused to intervene",
and by the testimony of an eye-witness, Ernesto G. Cuento,
who was a co-passenger. The captain of the plane who was
asked by the manager of defendant company at Bangkok to
intervene even refused to do so. It is noteworthy that no one
on behalf of defendant ever contradicted or denied this
evidence for the plaintiff. It could have been easy for
defendant to present its manager at Bangkok to testify at the
trial of the case, or yet to secure his disposition; but
defendant did neither. 37
The Court of appeals further stated —
Neither is there evidence as to whether or not a prior
reservation was made by the white man. Hence, if the
employees of the defendant at Bangkok sold a first-class
ticket to him when all the seats had already been taken,
surely the plaintiff should not have been picked out as the
one to suffer the consequences and to be subjected to the
humiliation and indignity of being ejected from his seat in the
presence of others. Instead of explaining to the white man
the improvidence committed by defendant's employees, the
manager adopted the more drastic step of ousting the
plaintiff who was then safely ensconsced in his rightful seat.
We are strengthened in our belief that this probably was
what happened there, by the testimony of defendant's
witness Rafael Altonaga who, when asked to explain the
meaning of the letters "O.K." appearing on the tickets of
plaintiff, said "that the space is confirmed for first class.
Likewise, Zenaida Faustino, another witness for defendant,
who was the chief of the Reservation Office of defendant,
testified as follows:
"Q How does the person in the ticket-issuing office know
what reservation the passenger has arranged with you?
A They call us up by phone and ask for the confirmation."
(t.s.n., p. 247, June 19, 1959)
In this connection, we quote with approval what the trial
Judge has said on this point:
Why did the, using the words of witness Ernesto G. Cuento,
"white man" have a "better right" to the seat occupied by Mr.
Carrascoso? The record is silent. The defendant airline did
not prove "any better", nay, any right on the part of the
"white man" to the "First class" seat that the plaintiff was
occupying and for which he paid and was issued a
corresponding "first class" ticket.
If there was a justified reason for the action of the
defendant's Manager in Bangkok, the defendant could have
easily proven it by having taken the testimony of the said
Manager by deposition, but defendant did not do so; the
presumption is that evidence willfully suppressed would be
adverse if produced [Sec. 69, par (e), Rules of Court]; and,
under the circumstances, the Court is constrained to find, as
it does find, that the Manager of the defendant airline in
Bangkok not merely asked but threatened the plaintiff to
throw him out of the plane if he did not give up his "first
class" seat because the said Manager wanted to
accommodate, using the words of the witness Ernesto G.
Cuento, the "white man".38
It is really correct to say that the Court of Appeals in the
quoted portion first transcribed did not use the term "bad
faith". But can it be doubted that the recital of facts therein
points to bad faith? The manager not only prevented
Carrascoso from enjoying his right to a first class seat; worse,
he imposed his arbitrary will; he forcibly ejected him from
his seat, made him suffer the humiliation of having to go to
the tourist class compartment - just to give way to another
passenger whose right thereto has not been established.
Certainly, this is bad faith. Unless, of course, bad faith has
assumed a meaning different from what is understood in law.
For, "bad faith" contemplates a "state of mind affirmatively
operating with furtive design or with some motive of self-
interest or will or for ulterior purpose." 39
And if the foregoing were not yet sufficient, there is the
express finding of bad faith in the judgment of the Court of
First Instance, thus:
The evidence shows that the defendant violated its contract
of transportation with plaintiff in bad faith, with the
aggravating circumstances that defendant's Manager in
Bangkok went to the extent of threatening the plaintiff in the
presence of many passengers to have him thrown out of the
airplane to give the "first class" seat that he was occupying
to, again using the words of the witness Ernesto G. Cuento, a
"white man" whom he (defendant's Manager) wished to
accommodate, and the defendant has not proven that this
"white man" had any "better right" to occupy the "first class"
seat that the plaintiff was occupying, duly paid for, and for
which the corresponding "first class" ticket was issued by the
defendant to him.40
5. The responsibility of an employer for the tortious act of its
employees need not be essayed. It is well settled in law. 41
For the willful malevolent act of petitioner's manager,
petitioner, his employer, must answer. Article 21 of the Civil
Code says:
ART. 21. Any person who willfully causes loss or injury to
another in a manner that is contrary to morals, good customs
or public policy shall compensate the latter for the damage.
In parallel circumstances, we applied the foregoing legal
precept; and, we held that upon the provisions of Article
2219 (10), Civil Code, moral damages are recoverable. 42
6. A contract to transport passengers is quite different in
kind and degree from any other contractual relation. 43 And
this, because of the relation which an air-carrier sustains
with the public. Its business is mainly with the travelling
public. It invites people to avail of the comforts and
advantages it offers. The contract of air carriage, therefore,
generates a relation attended with a public duty. Neglect or
malfeasance of the carrier's employees, naturally, could give
ground for an action for damages.
Passengers do not contract merely for transportation. They
have a right to be treated by the carrier's employees with
kindness, respect, courtesy and due consideration. They are
entitled to be protected against personal misconduct,
injurious language, indignities and abuses from such
employees. So it is, that any rule or discourteous conduct on
the part of employees towards a passenger gives the latter
an action for damages against the carrier. 44
Thus, "Where a steamship company 45 had accepted a
passenger's check, it was a breach of contract and a tort,
giving a right of action for its agent in the presence of third
persons to falsely notify her that the check was worthless
and demand payment under threat of ejection, though the
language used was not insulting and she was not ejected." 46
And this, because, although the relation of passenger and
carrier is "contractual both in origin and nature"
nevertheless "the act that breaks the contract may be also a
tort". 47 And in another case, "Where a passenger on a
railroad train, when the conductor came to collect his fare
tendered him the cash fare to a point where the train was
scheduled not to stop, and told him that as soon as the train
reached such point he would pay the cash fare from that
point to destination, there was nothing in the conduct of the
passenger which justified the conductor in using insulting
language to him, as by calling him a lunatic," 48 and the
Supreme Court of South Carolina there held the carrier liable
for the mental suffering of said passenger.1awphîl.nèt
Petitioner's contract with Carrascoso is one attended with
public duty. The stress of Carrascoso's action as we have said,
is placed upon his wrongful expulsion. This is a violation of
public duty by the petitioner air carrier — a case of quasi-
delict. Damages are proper.
7. Petitioner draws our attention to respondent Carrascoso's
testimony, thus —
Q You mentioned about an attendant. Who is that attendant
and purser?
A When we left already — that was already in the trip — I
could not help it. So one of the flight attendants approached
me and requested from me my ticket and I said, What for?
and she said, "We will note that you transferred to the tourist
class". I said, "Nothing of that kind. That is tantamount to
accepting my transfer." And I also said, "You are not going to
note anything there because I am protesting to this transfer".
Q Was she able to note it?
A No, because I did not give my ticket.
Q About that purser?
A Well, the seats there are so close that you feel
uncomfortable and you don't have enough leg room, I stood
up and I went to the pantry that was next to me and the
purser was there. He told me, "I have recorded the incident
in my notebook." He read it and translated it to me —
because it was recorded in French — "First class passenger
was forced to go to the tourist class against his will, and that
the captain refused to intervene."
Mr. VALTE —
I move to strike out the last part of the testimony of the and P3,000.00 as attorneys' fees. The task of fixing these
witness because the best evidence would be the notes. Your amounts is primarily with the trial court. 56 The Court of
Honor. 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
COURT — thereof.57

I will allow that as part of his testimony. 49 On balance, we say that the judgment of the Court of Appeals
does not suffer from reversible error. We accordingly vote to
Petitioner charges that the finding of the Court of Appeals affirm the same. Costs against petitioner. So ordered.
that the purser made an entry in his notebook reading "First Concepcion, C.J., Reyes, J.B.L., Barrera, Dizon, Regala,
class passenger was forced to go to the tourist class against Makalintal, Zaldivar and Castro, JJ., concur. Bengzon, J.P., J.,
his will, and that the captain refused to intervene" is took no part.
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,