TORTS

The case of Barredo v. Garcia (73 Phil. 607 (1942)) involves a 16year old boy, one of the passengers of a caretela, who died as a
result of a collision with a recklessly driven taxi. In the criminal
action, the parents of the victim reserved their right to file a
separate civil action. After conviction of the driver with the charge
of homicide thru reckless imprudence, they proceeded to file a
separate civil action against the taxi-owner based on Article 2180
of the New Civil Code. The taxi-driver met this with the argument
that the driver having been convicted of criminal negligence,
Article 100 in relation to Articles 102-o3 of the Revised Penal Code
should govern his liability, which, pursuant to said provisions is
only subsidiary, but since the driver has not been sued in a civil
action and his property not yet exhausted, the plaintiffs have no
recourse against him.
The Court, in said case, ruled in favor of the plaintiff, holding that
a quasi-delict 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.
EN BANC
G.R. No. L-48006

July 8, 1942

FAUSTO BARREDO, petitioner,

vs.
SEVERINO GARCIA and TIMOTEA ALMARIO, respondents.
Celedonio P. Gloria and Antonio Barredo for petitioner.
Jose G. Advincula for respondents.
BOCOBO, J.:
This case comes up from the Court of Appeals which held the
petitioner herein, Fausto Barredo, liable in damages for the death
of Faustino Garcia caused by the negligence of Pedro Fontanilla, a
taxi driver employed by said Fausto Barredo.
At about half past one in the morning of May 3, 1936, on the road
between Malabon and Navotas, Province of Rizal, there was a
head-on collision between a taxi of the Malate Taxicab driven by
Pedro Fontanilla and a carretela guided by Pedro Dimapalis. The
carretela was overturned, and one of its passengers, 16-year-old
boy Faustino Garcia, suffered injuries from which he died two days
later. A criminal action was filed against Fontanilla in the Court of
First Instance of Rizal, and he was convicted and sentenced to an
indeterminate sentence of one year and one day to two years
of prision correccional. The court in the criminal case granted the
petition that the right to bring a separate civil action be reserved.
The Court of Appeals affirmed the sentence of the lower court in
the criminal case. Severino Garcia and Timotea Almario, parents
of the deceased on March 7, 1939, brought an action in the Court
of First Instance of Manila against Fausto Barredo as the sole
proprietor of the Malate Taxicab and employer of Pedro Fontanilla.
On July 8, 1939, the Court of First Instance of Manila awarded
damages in favor of the plaintiffs for P2,000 plus legal interest
from the date of the complaint. This decision was modified by the
Court of Appeals by reducing the damages to P1,000 with legal
interest from the time the action was instituted. It is undisputed
that Fontanilla 's negligence was the cause of the mishap, as he
was driving on the wrong side of the road, and at high speed. As
to Barredo's responsibility, the Court of Appeals found:
... It is admitted that defendant is Fontanilla's employer.
There is proof that he exercised the diligence of a good
father of a family to prevent damage. (See p. 22,
appellant's brief.) In fact it is shown he was careless in
employing Fontanilla who had been caught several times
for violation of the Automobile Law and speeding (Exhibit
A) violation which appeared in the records of the
Bureau of Public Works available to be public and to
himself. Therefore, he must indemnify plaintiffs under the
provisions of article 1903 of the Civil Code.

The main theory of the defense is that the liability of Fausto

Barredo is governed by the Revised Penal Code; hence, his liability
is only subsidiary, and as there has been no civil action against
Pedro Fontanilla, the person criminally liable, Barredo cannot be
held responsible in the case. The petitioner's brief states on page
10:
... The Court of Appeals holds that the petitioner is being
sued for his failure to exercise all the diligence of a good
father of a family in the selection and supervision of
Pedro Fontanilla to prevent damages suffered by the
respondents. In other words, The Court of Appeals insists
on applying in the case article 1903 of the Civil Code.
Article 1903 of the Civil Code is found in Chapter II, Title
16, Book IV of the Civil Code. This fact makes said article
to a civil liability arising from a crime as in the case at
bar simply because Chapter II of Title 16 of Book IV of the
Civil Code, in the precise words of article 1903 of the Civil
Code itself, is applicable only to "those (obligations)
arising from wrongful or negligent acts or commission
not punishable by law.
The gist of the decision of the Court of Appeals is expressed thus:
... We cannot agree to the defendant's contention. The
liability sought to be imposed upon him in this action is
not a civil obligation arising from a felony or a
misdemeanor (the crime of Pedro Fontanilla,), but an
obligation imposed in article 1903 of the Civil Code by
reason of his negligence in the selection or supervision of
his servant or employee.
The pivotal question in this case is whether the plaintiffs may
bring this separate civil action against Fausto Barredo, thus
making him primarily and directly, responsible under article 1903
of the Civil Code as an employer of Pedro Fontanilla. The
defendant maintains that Fontanilla's negligence being punishable
by the Penal Code, his (defendant's) liability as an employer is
only subsidiary, according to said Penal code, but Fontanilla has
not been sued in a civil action and his property has not been
exhausted. To decide the main issue, we must cut through the
tangle that has, in the minds of many confused and jumbled
together delitos and cuasi delitos, or crimes under the Penal Code
and fault or negligence under articles 1902-1910 of the Civil Code.
This should be done, because justice may be lost in a labyrinth,
unless principles and remedies are distinctly envisaged.
Fortunately, we are aided in our inquiry by the luminous
presentation of the perplexing subject by renown jurists and we
are likewise guided by the decisions of this Court in previous
cases as well as by the solemn clarity of the consideration in
several sentences of the Supreme Tribunal of Spain.
Authorities support the proposition that a quasi-delict or "culpa
aquiliana " is a separate legal institution under the Civil Code with
a substantivity all its own, and individuality that is entirely apart
and independent from delict or crime. Upon this principle and on
the wording and spirit article 1903 of the Civil Code, the primary
and direct responsibility of employers may be safely anchored.
The pertinent provisions of the Civil Code and Revised Penal Code
are as follows:
CIVIL CODE
ART. 1089 Obligations arise from law, from contracts and
quasi-contracts, and from acts and omissions which are
unlawful or in which any kind of fault or negligence
intervenes.
xxx

xxx

xxx

ART. 1092. Civil obligations arising from felonies or

misdemeanors shall be governed by the provisions of the
Penal Code.
ART. 1093. Those which are derived from acts or
omissions in which fault or negligence, not punishable by

law, intervenes shall be subject to the provisions of

Chapter II, Title XVI of this book.
xxx

xxx

xxx

ART 1902. Any person who by an act or omission causes

damage to another by his fault or negligence shall be
liable for the damage so done.
ART. 1903. The obligation imposed by the next preceding
article is enforcible, not only for personal acts and
omissions, but also for those of persons for whom
another is responsible.
The father and in, case of his death or incapacity, the
mother, are liable for any damages caused by the minor
children who live with them.
Guardians are liable for damages done by minors or
incapacitated persons subject to their authority and
living with them.
Owners or directors of an establishment or business are
equally liable for any damages caused by their
employees while engaged in the branch of the service in
which employed, or on occasion of the performance of
their duties.
The State is subject to the same liability when it acts
through a special agent, but not if the damage shall have
been caused by the official upon whom properly
devolved the duty of doing the act performed, in which
case the provisions of the next preceding article shall be
applicable.
Finally, teachers or directors of arts trades are liable for
any damages caused by their pupils or apprentices while
they are under their custody.
The liability imposed by this article shall cease in case
the persons mentioned therein prove that they are
exercised all the diligence of a good father of a family to
prevent the damage.
ART. 1904. Any person who pays for damage caused by
his employees may recover from the latter what he may
have paid.
REVISED PENAL CODE
ART. 100. Civil liability of a person guilty of felony.
Every person criminally liable for a felony is also civilly
liable.
ART. 101. Rules regarding civil liability in certain cases.
The exemption from criminal liability established in
subdivisions 1, 2, 3, 5, and 6 of article 12 and in
subdivision 4 of article 11 of this Code does not include
exemption from civil liability, which shall be enforced to
the following rules:
First. In cases of subdivision, 1, 2 and 3 of article 12 the
civil liability for acts committed by any imbecile or insane
person, and by a person under nine years of age, or by
one over nine but under fifteen years of age, who has
acted without discernment shall devolve upon those
having such person under their legal authority or control,
unless it appears that there was no fault or negligence on
their part.
Should there be no person having such insane, imbecile
or minor under his authority, legal guardianship, or
control, or if such person be insolvent, said insane,
imbecile, or minor shall respond with their own property,
excepting property exempt from execution, in
accordance with the civil law.

Second. In cases falling within subdivision 4 of article 11,

the person for whose benefit the harm has been
prevented shall be civilly liable in proportion to the
benefit which they may have received.
The courts shall determine, in their sound discretion, the
proportionate amount for which each one shall be liable.
When the respective shares can not be equitably determined,
even approximately, or when the liability also attaches to the
Government, or to the majority of the inhabitants of the town,
and, in all events, whenever the damage has been caused with
the consent of the authorities or their agents, indemnification
shall be made in the manner prescribed by special laws or
regulations.
Third. In cases falling within subdivisions 5 and 6 of article 12, the
persons using violence or causing the fear shall be primarily liable
and secondarily, or, if there be no such persons, those doing the
act shall be liable, saving always to the latter that part of their
property exempt from execution.
ART. 102. Subsidiary civil liability of innkeepers, tavern
keepers and proprietors of establishment. In default of
persons criminally liable, innkeepers, tavern keepers, and
any other persons or corporation shall be civilly liable for
crimes committed in their establishments, in all cases
where a violation of municipal ordinances or some
general or special police regulation shall have been
committed by them or their employees.
Innkeepers are also subsidiarily liable for the restitution
of goods taken by robbery or theft within their houses
lodging therein, or the person, or for the payment of the
value thereof, provided that such guests shall have
notified in advance the innkeeper himself, or the person
representing him, of the deposit of such goods within the
inn; and shall furthermore have followed the directions
which such innkeeper or his representative may have
given them with respect to the care of and vigilance over
such goods. No liability shall attach in case of robbery
with violence against or intimidation against or
intimidation of persons unless committed by the
innkeeper's employees.
ART. 103. Subsidiary civil liability of other persons. The
subsidiary liability established in the next preceding
article shall also apply to employers, teachers, persons,
and corporations engaged in any kind of industry for
felonies committed by their servants, pupils, workmen,
apprentices, or employees in the discharge of their
duties.
xxx

xxx

xxx

ART. 365. Imprudence and negligence. Any person

who, by reckless imprudence, shall commit any act
which, had it been intentional, would constitute a grave
felony, shall suffer the penalty of arresto mayor in its
maximum period to prision correccional in its minimum
period; if it would have constituted a less grave felony,
the penalty of arresto mayor in its minimum and medium
periods shall be imposed.
Any person who, by simple imprudence or negligence,
shall commit an act which would otherwise constitute a
grave felony, shall suffer the penalty of arresto mayor in
its medium and maximum periods; if it would have
constituted a less serious felony, the penalty of arresto
mayor in its minimum period shall be imposed."
It will thus be seen that while the terms of articles 1902 of the
Civil Code seem to be broad enough to cover the driver's
negligence in the instant case, nevertheless article 1093
limits cuasi-delitos to acts or omissions "not punishable by law."
But inasmuch as article 365 of the Revised Penal Code punishes
not only reckless but even simple imprudence or negligence, the
fault or negligence under article 1902 of the Civil Code has

apparently been crowded out. It is this overlapping that makes the

"confusion worse confounded." However, a closer study shows
that such a concurrence of scope in regard to negligent acts does
not destroy the distinction between the civil liability arising from a
crime and the responsibility for cuasi-delitos or culpa extracontractual. 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
dao 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 Espaola" (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 ataen 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
daos 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 aadidura, abstenido de
asistir al juicio criminal la Compaia del Ferrocarril
Cantabrico, que se reservo ejercitar sus acciones, parece
innegable que la de indemnizacion por los daos 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, extraa a la cosa juzgada.
As things are, apropos of the reality pure and simple of
the facts, it seems less tenable that there should beres
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 Compaa 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
Juradohad 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 extracontractual 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 dueo 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 dao, la ley presume que el padre, el tutor, el
maestro, etc., han cometido una falta de negligencia
para prevenir o evitar el dao. 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 cuasidelito, 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 Espaol," 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 quasidelict 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 "compaia
Electric Madrilea 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 compaia Electrica Madrilea al pago del
dao 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
daos 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 compaia recurrente a la indemnizacion del dao
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 Compaia Madrilea 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., que las expediciones facturadas
por la compaia 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., 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., que la falta de entrega de estas
expediciones al tiempo de reclamarlas el demandante le
originaron daos 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 daos 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 Compaia
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.

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.

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.

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.

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 preexisting 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

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-yearold 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 defendantpetitioner 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.
G.R. No. L-46179 January 31, 1978
CANDIDA VIRATA, TOMAS VIRATA, MANOLITO VIRATA,
EDERLINDA VIRATA, NAPOLEON VIRATA, ARACELY VIRATA,
ZENAIDA VIRATA, LUZMINDA VIRATA, PACITA VIRATA, and
EVANGELINA VIRATA,petitioners,
vs.
VICTORIO OCHOA, MAXIMO BORILLA and THE COURT OF
FIRST INSTANCE OF CAVITE, 7th JUDICIAL DISTRICT,
BRANCH V, stationed at BACOOR, CAVITE, respondents.
FERNANDEZ, J.:

This is an appeal by certiorari, from the order of the Court of First

Instance of Cavite, Branch V, in Civil Case No. B-134 granting the
motion of the defendants to dismiss the complaint on the ground
that there is another action pending between the same parties for
the same cause. 1
The record shows that on September 24, 1975 one Arsenio Virata
died as a result of having been bumped while walking along Taft
Avenue, Pasay City by a passenger jeepney driven by Maximo
Borilla and registered in the name Of Victoria Ochoa; that Borilla is
the employer of Ochoa; that for the death of Arsenio Virata, a
action for homicide through reckless imprudence was instituted on
September 25, 1975 against Maximo Borilla in the Court of First
Instance of Rizal at Pasay City, docketed as C Case No. 3162-P of
said court; that at the hearing of the said criminal case on
December 12, 1975, Atty. Julio Francisco, the private prosecutor,
made a reservation to file a separate civil action for damages
against the driver on his criminal liability; that on February 19,
1976 Atty. Julio Francisco filed a motion in said c case to withdraw
the reservation to file a separate civil action; that thereafter, the
private prosecutor actively participated in the trial and presented
evidence on the damages; that on June 29, 1976 the heirs of
Arsenio Virata again reserved their right to institute a separate
civil action; that on July 19, 1977 the heirs of Arsenio Virata,
petitioners herein, commenced Civil No. B-134 in the Court of First
Instance of Cavite at Bacoor, Branch V, for damages based on
quasi-delict against the driver Maximo Borilla and the registered
owner of the jeepney, Victorio Ochoa; that on August 13, 1976 the
defendants, private respondents filed a motion to dismiss on the
ground that there is another action, Criminal Case No. 3162-P,
pending between the same parties for the same cause; that on
September 8, 1976 the Court of First Instance of Rizal at Pasay
City a decision in Criminal Case No. 3612-P acquitting the accused
Maximo Borilla on the ground that he caused an injury by name
accident; and that on January 31, 1977, the Court of First Instance
of Cavite at Bacoor granted the motion to Civil Case No. B-134 for
damages. 2
The principal issue is weather or not the of the Arsenio Virata, can
prosecute an action for the damages based on quasi-delict against
Maximo Borilla and Victoria Ochoa, driver and owner, respectively
on the passenger jeepney that bumped Arsenio Virata.
It is settled that in negligence cases the aggrieved parties may
choose between an action under the Revised Penal Code or of
quasi-delict under Article 2176 of the Civil Code of the Philippines.
What is prohibited by Article 2177 of the Civil Code of the
Philippines is to recover twice for the same negligent act.
The Supreme Court has held that:
According to the Code Commission: 'The foregoing
provision (Article 2177) though 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 extra-contractual' or quasi-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 quasidelict 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 Bocobo about construction that upholds 'the spirit
that given life' 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 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 language in Rakes vs. Atlantic Gulf
and Pacific Co., 7 Phil. to 359, to hod as We do hold, that
Article 2176, where it refers to 'fault covers not only acts
'not punishable by law' but also criminal in character,
whether intentional and voluntary or consequently, a
separate civil action lies against the in a criminal act,
whether or not he is criminally prosecuted and found
guilty and 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 refereed to in
Par. (c) of Section 13, 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 extinguished even by a declaration in the criminal
case that the criminal act charged has not happened or
has not been committed by the accused. Brief stated, We
hold, in reitration of Garcia, that culpa aquilina includes
voluntary and negligent acts which may be punishable by
law. 3
The petitioners are not seeking to recover twice for the same
negligent act. Before Criminal Case No. 3162-P was decided, they
manifested in said criminal case that they were filing a separate
civil action for damages against the owner and driver of the
passenger jeepney based on quasi-delict. The acquittal of the
driver, Maximo Borilla, of the crime charged in Criminal Case No.
3162-P is not a bar to the prosecution of Civil Case No. B-134 for
damages based on quasi-delict The source of the obligation
sought to be enforced in Civil Case No. B-134 is quasi-delict, not
an act or omission punishable by law. Under Article 1157 of the
Civil Code of the Philippines, quasi-delict and an act or omission
punishable by law are two different sources of obligation.
Moreover, for the petitioners to prevail in the action for damages,
Civil Case No. B-134, they have only to establish their cause of
action by preponderance of the evidence.
WHEREFORE, the order of dismissal appealed from is hereby set
aside and Civil Case No. B-134 is reinstated and remanded to the
lower court for further proceedings, with costs against the private
respondents. SO ORDERED.
EN BANC
G.R. No. L-17690

June 14, 1922

YU BIAO SONTUA & CO., plaintiff-appellee,

vs.
MIGUEL J. OSSORIO, defendant-appellant.

the agents and employees of the said defendant, which caused

the fire in the aforesaid motor boat Alfonso, wherefrom it spread,
and caused said damages to the steamer Y. Sontua. These
damages are specified in the two causes of action set forth in the
complaint, in the first of which are mentioned the appurtenances
and parts of the aforesaid vessel that were destroyed and
damaged by the said fire, and for the repair of which the sum of
P40,000 was expended. In the second cause of action it is alleged
that the plaintiff sustained damages to the amount of P27,400 for
the demurrage and delay in the ordinary voyages of the aforesaid
vessel Y. Sontua. After denying generally and specifically the
allegations of the complaint, the defendant alleges, as special
defense, that he has taken no part either directly or indirectly in
the acts alleged in the complaint; that if the plaintiff has sustained
any damages, they are not the result of the act said to have been
committed by the agents and employees of the defendant; and
are not imputable to the negligence of the defendant, or any of
his agents, employees, or mandatories.
The case having been tried, the court sentenced the defendant to
pay the plaintiff the above-mentioned sum of P67,400, with legal
interest thereon from the date of the filing of the complaint, and
the costs.
From the judgment the defendant appeals to this court assigning
three errors, to wit: (a) The finding that the explosion in question
was due to the negligence of the persons in charge of the motor
boat Alfonso; (b) the finding that the defendant is liable for the
negligence of his agents and employees; and (c) the awarding of
an excessive sum as damages.
With regard to the first error, the following facts are proven: That
during the day and night of the 12th, and during the day of the
13th of March 1920, there were loaded in the said motor
boat Alfonso 2,000 cases of petroleum and 8,473 cases of
gasoline, of which 5,000 cases of gasoline and 2,000 of petroleum
were placed in the hold of said motor boat, and the balance on
deck; that said loading was done without permission from the
customs authorities; that the said cases were loaded by means of
straps supporting 10 or 12 cases at a time; that the said cases of
gasoline and petroleum were placed in the hold about 14 feet
from the boiler of the main engine and about 4 feet from the
boiler of the smaller engine; that on the evening of the 13th of
March, 1920, the smaller engine was in operation preparatory to
the departure of the motor boat which, at that time, was getting
ready to leave; that the fire in said motor boat burst out with an
explosion followed by a violent expulsion of gasoline and
petroleum; that owing to the proximity of the motor boat to the
steamer Y. Sontua, the magnitude of the fire and the
inflammability of the material that served as fuel, the fire spread
to the said steamer Y. Sontua, and so rapidly that it was
impossible for the crew of the Y. Sontua to check its progress,
Expert testimony was also introduced by the plaintiff to the effect
that it is but natural that, after several transhipments of more
than 8,000 cases of gasoline and 2,000 cases of petroleum there
is bound to be a leakage, on an average of 1 to 4 cases per
hundred, due to the fact that the loading is effected by means of
straps supporting from 10 to 12 cases at a time which, quite
frequently, receive violent bumps resulting in damage to the cans
and the consequent leakage of either gasoline or petroleum, as
the case may be.

ROMUALDEZ, J.:
On the evening of the 13th of March, 1920, a fire broke out on
board the motor boat Alfonso when this boat was in the Pasig
River, city of Manila, ready to weigh anchor. A short distance from
the Alfonso the steamer Y. Sontuawas lying alongside moored to
the wharf of said river.
The fire in the motor boat Alfonso spread to the steamer Y.
Sontua, causing damages to her deck, according to plaintiff,
amounting to P67,400.
The plaintiff, which is a regular partnership and the owner of the
steamer Y. Sontua, brought this action to recover from the
defendant, the owner and agent of said motor boat Alfonso, the
aforementioned sum as indemnity for the damages alleged by the
plaintiff to have been sustained by him through the negligence of

It was also shown by expert testimony that the gases formed by

the volatilization of the gasoline or petroleum leaking from the
cases are apt to accumulate in a compartment, such as the hold
of a ship, without sufficient ventilation causing the gases to ignite
upon coming in contact with a spark or upon the temperature
being sufficiently raised.
Under these circumstances we are constrained to hold that the
fire which caused the damages for which the plaintiff seeks to be
indemnified was the inevitable effect of the explosion and fire
which occurred in the motor boatAlfonso; that this explosion and
fire in the said motor boat is, with good ground, imputable to the
negligence of the persons having charge at that time of said
motor boat and under whose direction the loading of the aforesaid
cases of petroleum and gasoline had been performed.

The trial court did not, therefore, commit the first error assigned
by the appellant.
In the second assignment of error, the appellant contends that the
defendant ought not to be held liable for the negligence of his
agents and employees.
It is proven that the agents and employees, through whose
negligence the explosion and fire in question occurred, were
agents, employees, and mandatories of the defendant. Where the
vessel is one of freight, a public concern or public utility, its owner
or agent is liable for the tortious acts of his agents (arts. 587, 613,
and 618, Code of Commerce; and arts. 1902, 1903, 1908, Civil
Code). This principle has been repeatedly upheld in various
decisions of this court.
The doctrines cited by the appellant in support of his theory have
reference to the relations between principal and agent and his
agents and employees; for this reason they cannot be applied in
the present case.
In American law, principles similar to those in force in the
Philippines and contained in the Code of Commerce above cited,
are prevailing:
Vessel owner's liability in general. The general liability
of a vessel owner extends to losses by fire arising from
other than a natural or other excepted cause, whether
occurring on the ship accidentally, or communicated from
another vessel, or from the shore; and the fact that fire
produces the motive power of a boat does not affect the
case. Such losses are not within the exceptions either of
act of God, or peril of the sea, except by local custom,
unless proximately caused by one of these events. In
jurisdictions where the civil law obtains, however, it has
been held that if property on a steamboat is destroyed
by fire, the owners of the boat are not responsible, if it
was being navigated with proper diligence, although the
accident occurred at night. The common law liability
extends even to loss by fires caused entirely by
spontaneous combustion of the cargo, without any
negligence on the part of master or crew. (R.C.L., vol. 24,
pp. 1324-1325.)
With regard to the allegation that the obligations enumerated in
article 612 of our Code of Commerce are inherent in the master
such inherent duties do not limit to the latter the civil liability
arising from their nonfulfillment, but while the master is
responsible to the ship agent, the ship agent, in turn, is
responsible to third persons, as is clearly provided in article 618 of
said Code, in which express mention is made, is subsections 5 and
7, of the duties enumerated in the said article 612.
Therefore there is also no ground for holding that the second error
assigned by the appellant has been committed.
The third error is concerned with the amount of the damages
sustained by the plaintiff.
It is sufficiently proven that the sum paid by the plaintiff to the
Earnshaw Shipyards for the repairs made to the steamer Y.
Sontua, damage to which was caused by the fire in question,
amount to P27,968; that the materials used in said repairs and
paid for by the plaintiff are worth P12,139.30. As to the damages
sustained by the plaintiff on account of the delay of the steamer Y.
Sontua, the evidence shows that this steamer was delayed ten
days in the Pasig River, waiting for available space in the shipyard
before it was taken to the said repair-shop; that it was not
absolutely necessary that the repair of the damages caused by
the fire should be made in the shipyard; that said vessel was
taken to the shipyard for repair of some parts of it not damaged
by the fire in question.
As the evidence does not sufficiently show the time consumed in
repairing the actual damage caused by the said fire, nor the time
employed in making the other repairs, and as the damage, if any,
resulting from the ten days' delay in the Pasig River, is remote
and, therefore, not chargeable to the defendant since said delay is

in no way imputable to him, we think, in view of all of the

circumstances of the case and taking into consideration the
importance of all the repairs, whether by fire or otherwise, the
delay of seventy days, according to the evidence of the plaintiff,
chargeable to the defendant, should be reduced to one-half, or
thirty-five days at the rate of P410.84 a day which is the net profit
that the aforesaid steamer Y. Sontua failed to realize as a
consequence of said delay. We find that the damages sustained by
the plaintiff by reason of this delay amount to P14,379.40.
The plaintiff further asks that he be awarded, by way of damages,
the sum of P4,400 covering maintenance and salary of the officers
and crew of his steamer during the delay aforementioned. We do
not feel that he is entitled to this item for the reason that such
expenses have already been taken into account in determining
the net daily profit above referred to. We find that the total sum
which the plaintiff is entitled to recover from the defendant as
damages under the facts stated is fifty-four thousand four
hundred eighty-six pesos and seventy centavos (P54,486.70).
The judgment appealed from is hereby modified and the
defendant sentenced to pay the plaintiff the sum of P54,486.70
with costs. So ordered.
Araullo, C.J., Avancea, Villamor, Ostrand and Johns, JJ., concur.
G.R. No. L-32774

October 14, 1930

BALBINO CUISON, plaintiff-appellant,

vs.
NORTON & HARRISON CO., TELESFORO BINOYA Y
ALMINANZA and FRANCISCO BAUTISTA Y CRUZ,defendants.
NORTON & HARRISON CO., appellee.
Vicente Sotto for appellant.
Gibbs and McDonough for appellee.
MALCOLM, J.:
This is an action brought by the father to recover damages in the
amount of P30,000 for the death of his son, alleged to have been
caused by the negligence of the defendant. The answer pleaded
the general issue. The judgment in the Court of First Instance
absolved the defendant from the complaint, without
pronouncement as to costs.
A succinct statement of the facts will be first undertaken as
follows: On the afternoon of August 9, 1928, Moises Cuison, a boy
7 years of age, the son of the plaintiff, was on his way to the
Santa Mesa School, in the City of Manila, in company with his
sister Marciana. As they came near to the fire station, some large
pieces of lumber on a truck which had stopped fell from it pinning
the boy beneath, and causing his almost instant death. The truck
in questioned was owned by Antonio Ora. It was driven by Felix
Jose, with Telesforo Binoya as the washing and Francisco Bautista
as the helper, the two latter being youths less than18 years of
age. Jose Binoya, and Bautista were employees of Ora. The truck
was rented by Ora to Norton & Harrison Co. On the truck were the
letters "N-H," which were the first letters of the firm name. Ora
was in the employ of Norton & Harrison Co. as a capataz. It was
his duty as such employee to direct the loading and transportation
of the lumber. When the accident occurred the lumber had
become loosened, and it was to rearrange it that the truck halted,
without, however, there arrangement having been made before
the pieces of lumber had fallen and killed the boy.
Important details were not brought out in the testimony, although
it would have been easy to supply those details. The most
important question of fact to determine was the relationship of
Ora to Norton & Harrison Co., whether he was a servant of the
company or an independent contractor. In view of the debatabel
facts found in the record, and in view of the propriety of obtaining
as much enlightenment as possible on the main issue, it is
deemed advisable to set forth a considerable portion of Ora's
testimony. He testified:
Q. Do you know the truck T-101? A. Yes, sir.

Q. Whose is that truck ? A. Mine.

Q. Showing you this document which I ask to be marked
Exhibit 1(certificate of ownership of a truck ) state what
is that document? A.This is the document of my truck.

Q. Where are you employed? A. In the firm of Norton &

Harrison.
Q. Since when? A. Since 1911.
Q. In what capacity? A. As foreman.

Q. On August 9,1928, when, according to the complaint,

the boy Moises Cuison was killed, was that truck used?
A. Yes, sir.

Q. Capataz? A. Yes, sir.

Q. For Whom? A. For me.

Q. For what kind of work? A. For loading lumber.
Q. Lumber of whom? A. Of Norton & Harrison Co.
Q. Where was the lumber to be taken? A. To Santa
Mesa.
Q. What was the agreement between you and Norton &
Harrison Co. regarding the transportation of lumber to
Santa Mesa?
xxx

xxx

Q. What kind of work do you have? A. Foreman.

Q. And as foreman, are you in charge of paying the

wages of the workers? A. No, sir.
Q. Therefore you are the capataz who directs the loading
and transportation of lumber? A. Yes, sir.
Q. Please see Exhibit 1 of the plaintiff and state if truck T101 is what appears therein? A. Yes, sir.
Q. Do you admit that the condition of that truck on
August 9, 1928, is as it appears in this photograph? A.
yes, sir.

xxx

A. The truck carried the lumber which I contracted with

Norton & Harrison for transportation to certain places. I
had an agreement with Norton & Harrison to carry and
transport lumber coming from its lumber yard to the
place of its destination.

Q. What explanation can you give the court accounting

for the sign 'N- H' which appears on the coach box of the
truck? A. The sign 'N-H' appearing there means that
the lumber belongs to Norton & Harrison.
Q. And as a foreman of Norton & Harrison, do you receive
any salary? A. Yes, sir.

Q. Did you rent the truck to Norton & Harrison monthly or

annually? A. By the cubic foot, depending upon the
distance travelled.

Q. How much? A. P200.

Q. Do you know Telesforo Binoya y Alminanza and

Francisco Bautista y Cruz? A. Yes, sir.

Q. You said that you entered into a contract with Norton

& Harrison, do you have a copy of that contract? A. No,
sir, we had an agreement and not a contract.

Q. Had they anything to do with the loading of the

lumber of Norton & Harrison on the truck?

Q. Verbal agreement? A. Yes,sir.

xxx

xxx

xxx

A. The said Bautista and Binoya were not the ones who
did the loading on my truck. There were other persons
stronger than these two who did the loading.
Q. What I mean to say is whether Binoya and Bautista, on
August 9,1928, when the truck went to the office of
Norton & Harrison to carry lumber to Santa Mesa, had
anything to do with the loading of the lumber on said
truck ? A. No, sir.

xxx

xxx

xxx

Q. How do you collect the rent of the truck, monthly or

daily? A. It depends upon the cargo and the distance
travelled.
Q. Daily? A. If I have loaded three times, then I have
three collections.
Q. Do you issue receipts therefor? A. Yes,sir.
Q. Have you any with you? A. I don't have.

xxx

xxx

xxx

Q. In your agreement with Norton & Harrison for the

transportation of lumber, who was under the obligation
to load the lumber on the truck?
xxx

xxx

xxx

Q. Can that truck of yours be rented by anybody? A.

No, sir.
Q. Only by Norton & Harrison? A. Only for my work.
Q. Do you have with you any books of account pertaining
to the business of your truck? A. No, sir.

A. I have already said that the agreement with Norton &

Harrison was to load the lumber on my truck and take it
to its destination.

Q. Not even a note? A. I don't have.

JUDGE:

Q. Not even the firm of Norton & Harrison? A. They

may have because the number of truck and the total
number of board feet appear on every receipt.

Q. But who was to do the loading of the lumber, your

men or their men? A. My men.
xxx

xxx

Q. As owner of the truck, don't you have any note? A.

No, sir.

xxx

Q. You said that you are an employee? A. Yes, sir.

Q. Is that truck No. T-101 the only one you have? A. I

Have some more.

Q. Some more? A. Yes, sir.

Q. For rent? A. For my own use. 1awph!l.net
Q. For the exclusive use of Norton & Harrison ? A. I
have a lime factory, and they are used for the
transportation lime.
Q. But this truck T-101 is exclusively intended to be
rented by Norton & Harrison? A. It is not rented
exclusively to Norton & Harrison. I use it in my other
contracts to carry cargoes, and also to carry lime.
Q. For the exclusive use of Norton & Harrison ? A. No,
sir, I use it also for the transportation of lime.
It is evident from the foregoing that Ora was a contractor and an
employee at the same time of Norton & Harrison Co. Reverting
now to the law, counsel for neither party has considered it
necessary to assist the court in this regard. However, just as the
ascertainment of the facts is important, so is it important to have
before us the applicable law.
The Penal Code makes provisions for the civil liability of persons
criminally liable, and establishes subsidiary liability for persons
and corporations engaged in any kind of industry for felonies and
misdemeanors committed by their servants in the discharge of
their duties. (Penal Code, arts. 17-20.) In this instance, recurring
to the facts, it should have been mentioned that the two youths,
Binoya and Bautista, pleaded guilty to the crime of homicide
through reckless negligence, and were sentenced accordingly.
The basis of civil law liability is not respondeat superior but the
relationship of paterfamilias. This theory bases the liability of the
master ultimately on his own negligece 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. As to Porto
Rico, see Acosta vs. Porto Rico Gas Co. [1915], 7 Porto Rico Fed.,
475; and Ortiz vs. Ezquiaga [1918], 10 Porto Rico Fed., 350.)
Article 1902 of the Civil Code provides:
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. Article 1903, paragraphs 4 and 7 of the
same Code provides:

lower court in not awarding the father of the dead boy damages
for the wrongful death of his son. It has been the practice of this
court in cases of death through negligence, in the absence of
special proof, to allow the sum of P1,000. (Manzanares vs. Moreta
[1918], 38 Phil., 821; Bernal and Enverso vs. House and Tacloban
Electric & Ice Plant [1930], 54 Phil., 327.) Judgment will be
reversed, and in the court of origin another judgment will issue in
favor of the plaintiff and against the defendant for the sum of
P1,000. So ordered, without special finding as to costs in either
instance.
Avancea, C.J., Street, Villamor and Romualdez, JJ., concur.
Separate Opinions
VILLA-REAL., J., concurring:
I concur in the result.
I am of the opinion, however, that the case at bar is governed by
the provisions of article 20 in connection with article 17 of the
Penal Code and article 1092 of the Civil Code, and not by the
provisions of articles 1902 and 1903 of the latter Code.
Ora was a foreman of the defendants Norton and Harrison for the
loading and unloading of their lumber the falling of which caused
the death of the son of the plaintiff Balbino Cuison. As such
foreman, Ora was the agent or employee of Norton and Harrison.
In the performance of his duties as such foreman, he used the
services of Francisco Bautista and Telesforo Binoya for the loading
and unloading of said lumber, thus making them his employees in
such work, and consequently the employees of Norton and
Harrison through him.
Under the provisions of article 20 of the Penal Code persons and
corporations engaged in any kind of industry are subsidiarily liable
for felonies and misdemeanors committed by their employees.
There is in the complaint filed in the present action sufficient
allegation that the said Francisco Bautista and Telesforo Binoya
committed the crime of homicide through reckless imprudence in
the handling of the lumber of Norton and Harrison and that they
were the employees of said firm. Norton and Harrison are
therefore civilly liable for the crime of homicide through reckless
negligence committed by their said employees, such liability
being of subsidiary nature.

Owners or directors of any establishment or business are,

in the same way, liable for any damages caused by their
employees while engaged in the branch of the service in
which employed, or an occasion of the performance of
their duties.
The liability imposed by this article shall cease in case
the persons subject thereto prove that they exercised all
the diligence of a good father of a family to prevent the
damage.
It is well to repeat that under the civil law an employer is only
liable for the negligence of his employees in the discharge of their
respective duties. The defense of independent contractor would
be a valid one in the Philippines just as it would be in the United
States. Here Ora was a contractor, but it does not necessarily
follow that he was an independent contractor. The reason for this
distinction is that the employer retained the power of directing
and controlling the work. The chauffeur and the two persons on
the truck were the employees of Ora, the contractor, but Ora, the
contractor, was an employee of Norton & Harrison Co., charged
with the duty of directing the loading and transportation of the
lumber. And it was the negligence in loading the lumber and the
use of minors on the truck which caused the death of the
unfortunate boy. On the facts and the law, Ora was not an
independent contractor, but was the servant of the defendant,
and for his negligence defendant was responsible.
Conceding that the record discloses a most unusual state of facts,
and conceding that the evidence is not as ample as it should be,
nevertheless on the record as it is and on the law as it is, it is
incumbent on the court to rule that error was committed in the

FIRST DIVISION
[G.R. No. 10073. December 24, 1915. ]
BUTARO YAMADA, Plaintiff-Appellee, v. THE MANILA
RAILROAD CO., defendant, and BACHRACH GARAGE &
TAXICAB CO., Defendant-Appellant.
[G.R. No. 10074. December 24, 1915. ]
KENJIRO KARABAYASHI, Plaintiff-Appellee, v. THE MANILA
RAILROAD CO., defendant, and BACHRACH GARAGE &
TAXICAB CO., Defendant-Appellant.
[G.R. No. 10075. December 24, 1915. ]
TAKUTARU UYEHARA, Plaintiff-Appellee, v. THE MANILA
RAILROAD CO., defendant, and BACHRACH GARAGE &
TAXICAB CO., Defendant-Appellant.
SYLLABUS

1. MASTER AND SERVANT; LIABILITY FOR INJURIES TO THIRD

PERSONS; DISTINCTION BETWEEN PRIVATE INDIVIDUALS AND
PUBLIC ENTERPRISES. The Civil Code, in dealing with the
liability of a master for the negligent acts of his servant, makes a
distinction between private individuals and public enterprises.
2. ID.; ID.; PRESUMPTION OF NEGLIGENCE OF MASTER. Where
an injury is caused by the negligence of a servant or employee of
a public enterprise, there instantly arises a presumption of law
that there was negligence on the part of the master or employer
either in the selection of the servant or employee or in supervision
over him after the selection, or both. But that presumption may be
rebutted.
3. ID.; ID.; ID. If, in such a case, the employer shows to the
satisfaction of the court that in the selection of the employee and
in his supervision over him he has exercised the care and
diligence of a good father of family, the presumption of
negligence on his part is overcome and he is relieved from
liability.
4. ID.; ID.; ID. The Civil Code bases the responsibility of the
master in such ultimately on his own negligence and not on that
of his servant.
5. RAILROAD CROSSING; DUTY TO USE CARE. It is the duty of
every person crossing a railroad to use ordinary care and diligence
to determine the proximity of a train before attempting to cross.
6. NEGLIGENCE; GARAGE COMPANY; FAILURE TO PROPERLY
INSTRUCT DRIVERS CROSSING RAILROADS. A garage and
taxicab company whose business it is to let automobiles and
taxicabs for hire and to furnish drivers therefor is negligent where
it appears that it was the custom of the drivers, known to the
officers of the company, to pass over railroad crossings without
any effort to determine the proximity of a train, and the company
made no effort to change the custom or to instruct its drivers to
the effect that railroad crossings should not be passed over
without due diligence being observed to determine the approach
of trains.
7. ID.; ID.; RESPONSIBILITY OF COMPANY. Where, under such
circumstances, one of the drivers of the said company, conveying
passengers in the companys machine, attempted to pass over a
railroad crossing without precaution or effort to determine the
proximity of a train, the automobile was struck by a train and the
passengers injured, the taxicab company is responsible for the
damages sustained by the passengers.
DECISION
MORELAND, J.:
The three cases dealt with in this decision differ in their facts only
with respect to the injury suffered by the respective plaintiffs. The
law applicable to them is the same and, at the request of counsel,
they will be decided at the same time. Plaintiffs claim damages
against both the railroad and the garage company because of
injuries suffered by them in a collision between a train owned by
and operated over tracks belonging to the railroad company and
an automobile the property of the Bachrach Garage & Taxicab Co.
On January 2, 1913, the plaintiffs, together with three
companions, hired an automobile from the defendant taxicab
company for a trip to Cavite Viejo. The automobile was secured at
a certain price per hour and was driven and controlled by a
chauffeur supplied by the taxicab company. The journey to Cavite
Viejo was made without incident but, on the return trip, while
crossing the tracks of defendant railroad company in the barrio of
San Juan, municipality of Cavite Viejo, the automobile was struck
by a train and the plaintiffs injured.
The trial court dismissed the complaint on the merits as to the
Manila Railroad Company and held the defendant taxicab
company liable for damages to the plaintiffs in various amounts.
The taxicab company appealed.
It appears from the record, and was found by the trial court, that
the driver of the automobile drove his machine upon the railroad
tracks without observing the precautions which ordinary care and
prudence would require, without reducing speed and without
taking any precaution looking to determining whether there was
danger from a train or locomotive. The trial court accordingly
found that the driver was guilty of gross negligence and that said
negligence was the proximate cause of the accident. It also found
that the driver had been, in effect, instructed by the taxicab
company to approach and pass over railroad tracks in the manner
and form followed and observed on the occasion in question, and
that, for that reason, the taxicab company was liable for the
damages cause.
Several errors are assigned by the Appellant. The first one relates
to the finding of the trial court: "That the driver of the automobile
did not slacken, which was fast, upon approaching the railroad
crossing, which was clearly visible and had to be approached on
an upward grade, or take any other precaution to avert accident. .

. . and I can but conclude that the driver of the automobile was
grossly negligent and careless in not taking such precaution as
would have notified him of the coming of the train. On the
contrary, he proceeded with reckless speed and regardless of
possible or threatened danger. If he had been driving the
automobile at a proper rate of speed for going over railroad
crossings he could easily have stopped before going over the
railroad crossing after seeing the train."
The argument of the appellant which is devoted to this finding
seems to admit impliedly at least that the driver of the automobile
maintained his rate of speed as he approached and went upon the
railroad crossing; and that he took no precaution to ascertain the
approach of a train.
The appellant contended on the trial and offered evidence to
prove that, on approaching the railroad crossing from the direction
in which the automobile was traveling at the time, the view of the
railroad tracks in both directions was obstructed by bushes and
trees growing alongside thereof, and that it was impossible for a
person approaching the crossing, even though on guard, to detect
by sight the approach of a train. If that were the case, it was
clearly the duty of the driver to reduce the speed of his car and
the noise thereof to such an extent that he would be able to
determine from the unrestricted and uninterrupted use of all his
faculties whether or not a train was near. It is the law that a
person must use ordinary care and prudence in passing over a
railroad crossing. While we are not prepared to lay down any
absolute rule as to what precise acts of precaution are necessary
to be done or left undone by a person who may have need to pass
over a railroad crossing, we may say that it is always incumbent
on him to use ordinary care and diligence. What acts are
necessary to constitute such care and diligence must depend on
the circumstances of each particular case. The degree of care
differs in different cases. Greater care is necessary in crossing a
road where the cars are running at a high rate of speed and
remote from one another. But in every case due care should be
exercised. It is very possible that where, on approaching a
crossing, the view of the tracks in both directions is unobstructed
for such a distance as to render it perfectly safe to pass over
without the use of any other faculty than sight, such use alone is
sufficient and it is not necessary to stop or even to slacken speed
or listen. In the other hand, where the view of the tracks in
obstructed, then it is a drivers duty to slacken speed, to reduce
the noise, if any, of the vehicle, to look and to listen, if necessary,
or do any other act necessary to determine that a train is not
dangerous proximity to the crossing.
In the case at bar the appellants own showing is to the effect that
the view of the track in the direction from which the train was
coming was obstructed in such manner that neither the track nor
a train could be seen as a traveler approached the crossing; and
yet, in spite of that fact, the cheuffeur drove upon the tracks
without investigation or precaution of any kind. The very fact that
a train was approaching and was so near as to collide with the
automobile is strong evidence of the fact that no precautions were
taken to determine that fact. It is undoubted that if the driver had
taken the simplest means of permitting his own faculties to
exercise themselves fairly, there would have been no accident, as
the presence of the train would have been discovered in an
instant; but he chose, rather, to give his senses no opportunity to
protect him or his passengers and drove on the track at full speed
with all the noise which an automobile produces at such speed on
an upgrade and the sense of hearing impaired by the rush of the
wind. Railroad trains rarely pass over tracks without noise and
their presence, generally speaking, is easily detected by persons
who take ordinary precautions.
Under this assignment the appellants main effort is bent to the
demonstration of the fact that there was a custom established
among automobile drivers of Manila by which they habitually
drove their cars over railroad crossings in the manner in which the
automobile was driven by defendants servant on the occasion in
controversy. To prove that custom counsel presents the evidence
of the president of the defendant company, Mr. Bachrach, who
testified on the trial that all of his drivers, including the one in
charge of the care on the night of the accident, operated cars in
that manner and that it was the custom among automobile drivers
generally. Counsel also cites the testimony of the witness Palido,
living near the scene of the accident, who testified that, as a
general rule, automobiles passed over the railroad crossing
without changing speed. The testimony was corroborated by the
defendant companys driver who had the automobile in charge at
the time of the occurrence. Basing himself on this alleged custom
counsel contends that "When a person does what is usual and
customary, i. e., proceeds as he and others engaged in a like
occupation have been accustomed to proceed, the action cannot
be characterized as reckless, nor, strictly speaking, as negligent."
To this the obvious reply may be made, for the moment admitting
the existence of the custom, that a practice which is dangerous to
human life cannot ripen into a custom which will protect anyone
who follows it. To go upon a railroad crossing without making any
effort to ascertain the approach of a train is so hazardous an act

and one so dangerous to life, that no one may be permitted to

excuse himself who does it, provided injury results. One who
performs an act so inherently dangerous cannot, when an
accident occurs, take refuge behind the plea that others have
performed the same act safely.
Under the second error assigned, the appellant contends with
much vigor that the plaintiffs cannot recover for the reason that
the negligence of the driver of the automobile, if any, was
imputable to them, they having permitted the driver to approach
and pass over the railroad crossing without the use of ordinary
care and diligence to determine the proximity of a train or
locomotive, and having made no effort to caution or instruct him
or compel him to take reasonable care in making the crossing.
With this contention we cannot agree. We think the better rule,
and one more consonant with the weight of authority, is that a
person who hires a public automobile and gives the driver
directions as to the place to which he wishes to be conveyed, but
exercises no other control over the conduct of the driver, is not
responsible for acts of negligence of the latter or prevented from
recovering for injuries suffered from a collision between the
automobile and a train, caused by the negligence either of the
locomotive engineer or the automobile driver. (Little v. Hackett,
116 U. S., 366.) The theory on which the negligence of the driver
has in some instances been imputed to the occupant of the
vehicle is that, having trusted the driver by selecting the
particular conveyance, the plaintiff so far identified himself with
the owner and his servants that, in case of injury resulting from
their negligence, he was considered a party thereto. This was the
theory upon which the case of Thorogood v. Bryan (8 C. B., 115)
was decided, which is the leading case in favor of the principle
contended for by Appellant. The Supreme Court of the United
State, however, in Little v. Hackett (116 U. S., 366), had this to say
concerning the ground on which the Thorogood case was decided:
"The truth is, the decision in Thorogood v. Bryan rests upon
indefensible ground. The identification of the passenger with the
negligent driver or the owner, without his personal cooperation or
encouragement, is a gratuitous assumption. There is no such
identity. The parties are not in the same position. The owner of a
public conveyance is a carrier, and the driver or the person
managing it is his servant. Neither of them is the servant of the
passenger, and his asserted identity with them is contradicted by
the daily experience of the world."
Further discussing the same question the court said: "There is no
distinction in principle whether the passengers be on a public
conveyance like a railroad train or an omnibus, or be on a hack
hired from a public stand in the street for a drive. Those on a hack
do not become responsible for the negligence of the driver if they
exercise no control over him further than to indicate the route
they wish or the places to which they wish to go. If he is their
agent so that his negligence can be imputed to them to prevent
their recovery against a third party, he must be their agent in all
other respects, so far as the management of the carriage is
concerned, and responsibility to third parties would attach to
them for injuries caused by his negligence in the course of his
employment. But, as we have already stated, responsibility
cannot, within any recognized rules of law, be fastened upon one
who has in no way interfered with and controlled in the matter
causing the injury. From the simple fact of hiring the carriage or
riding in it no such liability can arise. The party hiring or riding
must in some way have cooperated in producing the injury
complained of before he incurs any liability for it.If the law were
otherwise, as said by Mr. Justice Depue in his elaborate opinion in
the latest case in New Jersey, not only the hirer of the coach but
also all the passengers in it would be under a constraint to mount
the box and superintend the conduct of the driver in the
management and control of his team, or be put for remedy
exclusively to an action against the irresponsible driver or equally
irresponsible owner of a coach taken, it may be, from a coach
stand, for the consequences of an injury which was the product of
the cooperating wrongful acts of the driver and of a third person,
and that, too though the passengers were ignorant of the
character of the driver, and of the responsibility of the owner of
the team, and strangers to the route over which they were to be
carried. (New York, Lake Erie & Western Railroad v. Steinbrenner,
47 N. J. L. [18 Vroom], 161, 171.)"
We are of the opinion, therefore, that the rule is as we have stated
it. Ordinarily where one rides in a public vehicle with the driver
thereof and is injured by the negligence of a third person, to which
negligence that of the driver contributes, his contributory
negligence is not imputable to the passenger unless said
passenger has or is in the position to have and exercise some
control over the driver with reference to the matter wherein he
was negligent. Whether the person injured exercises any control
over the conduct of the driver further than to indicate the place to
which he wishes to drive is a question of fact to be determined by
the trial court on all of the evidence in the case. (Duval v. Railroad
Co., 134 N. C., 331; Hampel v. Detroit etc. R.R. Co., 110 Am. St.
Rep., 275; Cotton v. Willmar etc. R. R. Co., 99 Minn., 366; Shults v.
Old Colony Street Ry. Co., 193 Mass., 309; Wilson v. Puget Sound
Elec. Ry., 52 Wash., 522; Johnson v. Coey, 237 Ill., 88; Hinds v.

Steere, 209 Mass., 442.)

The appellant assigns as the third error the finding of the trial
court "that the defendant Manila Railroad Company was not guilty
of negligence which contributed to the causing of the accident
complained of."
In this connection it appears that, prior to the beginning of the
action now before us, two actions were instituted, both growing
out of the accident which forms the basis of the actions before us:
(1) A criminal action against the engineer of the train, in which the
engineer was acquitted; and (2) a civil action for damages by the
garage and taxicab company, the appellant herein, against the
defendant railroad company, for damages to the automobile
which was destroyed as a result of the accident, in which
judgment was for defendant. There is evidence in the record
showing that the locomotive engineer gave due and timely signals
on approaching the crossing in question. The trial court found that
the employees in the railroad company fully performed their duty
as the train approached the crossing on the night in question and
that, therefore, the railroad company in nowise contributed to the
accident. We do not believe that the record will justify us in a
reversal of this finding. There is abundant evidence to support it
and we have nothing before us by which that evidence may be
impeached. That the bell was rung and the whistle was blown on
nearing the crossing, giving due and timely warning to all persons
approaching, was testified to not only by servants of the
corporation but by passengers on the train. We find nothing in the
record which materially impairs the credibility of these witnesses
or to show that their evidence is improbable or unreasonable; and
we would be going far under such circumstances in discarding it
and reversing a judgment based thereon.
The appellant under this assignment of error presents other facts
which he claims show necessarily that the company was
negligent. He asserts:" (1) That this accident occurred in the heart
of the barrio of San Juan (Cavite Viejo), within approximately one
hundred meters of the railroad station, that is, in populous
community; (2) that the railroad company did not maintain either
a flagman or protecting gates at the grade crossing where the
accident occurred, while the sign "Railroad Crossing" was broken
on the side toward the road; (3) that trees and undergrowth had
been permitted to grow on and adjoining the right of way, and
houses were constructed thereon, in such manner as to obstruct
the view of persons approaching the railroad track until within a
few meters thereof; and (4) that the approach to the crossing is
twisting, and on either side thereof are ditches about two meters
deep."
With respect to the existence of trees and undergrowth on the
railroad companys right of way, the evidence is conflicting,
plaintiff maintaining and attempting to prove that such trees and
undergrowth existed, while defendant company contended and
offered evidence to show that no such growth existed at the time
of the accident. On this conflict of evidence the trial court found:
"Evidence on the part of the defendant Bachrach Garage &
Taxicab Co. is to the effect that the view from the crossing along
the track towards Manila was obstructed by bushes growing on
the railroad right of way along the track, while the preponderance
of the evidence discloses that for a distance of twelve or fifteen
meters from the crossing a view of the track for a considerable
distance is wholly unobstructed, and I can but conclude that the
driver of the automobile was grossly negligent and careless in not
taking such precaution as would have notified him of the coming
of the train. On the contrary, he proceeded with reckless speed
and regardless of possible or threatened danger."
Here again we are met with a contradiction in the evidence of
witnesses who, so far as appears, are equally entitled to credit,
which conflict has been resolved by the trial court in favor of the
witnesses for the defendant railroad company. Counsel for
appellant has failed to give any reason why we should accept the
testimony of appellants witnesses rather than those of the
railroad company and he has also neglected to point out any error
committed by the trial court in making its finding in this regard. A
careful examination of the record discloses no reason why the
judgment of the trial court on this point should be disturbed, there
appearing nothing on which we could base a judgment declaring
that the trial court erred in making its decision.
As to the other facts set fort on which appellant predicates
negligence on the part of the railroad company, we find them,
even if admitted, to be insufficient to establish negligence. It is
not negligence on the part of the railroad company to maintain
grade crossings, even in populous districts; nor is it negligence
not to maintain a flagman at such crossings. It is true that a
railroad company is held to greater caution in the more thronged
streets of the densely populated portions of the city than in the
less frequented streets in suburban parts or in towns; but this
does not mean that it is negligence to maintain grade crossings in
such densely populated portions or that it is negligent not to
maintain a flagman at crossings located in such districts. It simply
means that the company in operating its trains over such

crossings must exercise care commensurate with the use of

crossings in any give locality.
The main contention of the appellant is based on the claim that,
even admitting as proved all of the facts alleged by the plaintiffs,
the appellant is not liable. It is maintained that up to the time the
accident occurred the defendant taxicab company had fully
performed its duty to the public, it being undisputed in the record
that the driver was competent and had a long and satisfactory
record, having driven cars for the defendant for 5 or 6 years
without accident or misadventure, and that his negligence, if any,
in attempting to pass over the crossing on the occasion before us,
cannot legally be imputed to the taxicab company so as to make
it liable for the damages resulting therefrom. In support of this
argument the case of Johnson v. David (5 Phil. Rep., 663), is cited
as determinative of the question under consideration. The
appellant, however, having denied the fact if negligence we
might, before entering on a discussion of the applicability of the
principles enunciated in Johnson v. David to the facts before us,
repeat what we have already said, that it appears from the record,
and was found by the trial court, that the driver of the automobile
drove his machine upon the railroad tracks without observing the
precautions which ordinary care and prudence would have
required. He made substantially no effort toward ascertaining
whether there was danger from a train or locomotive. The trial
court found, as was quite necessary under the facts, that the
driver was guilty of gross negligence and that such negligence
was the proximate cause of the accident. It also found that the
taxicab company had permitted its drivers to approach and pass
over railroad tracks in the manner and form followed and
observed on the occasion in question until it had become a
custom among its drivers, known and sanctioned by the company;
and that, for that reason, the taxicab company was liable for the
damages caused. We are of the opinion that the trial court is fully
supported in the finding that the conduct of the officials of the
taxicab company, and notably the president thereof, amounted, in
law, to a sanction of the custom established among its automobile
drivers in passing over railroad crossings. Counsel is met,
therefore, at the opening of his discussion on this branch of the
case, with the question: Did the defendant taxicab company fully
discharge its duty when it furnished a suitable and proper car and
selected a driver who had been with the company for 5 or 6 years
and who had not had an accident or misadventure before? We
think not. It was the duty of the company not only to furnish a
suitable and proper car and select a competent operator, but also
to supervise and, where necessary, instruct him properly.
Returning now to the applicability of the case of Johnson v. David
to the facts before us:chanrob1es virtual 1aw library
The Civil Code, in dealing with the liability of a master for the
negligent acts of his servant, makes a distinction between private
individuals and public enterprises. (Art. 1903, Civil Code.) That
article, together with the preceding article, is as follows:
"ART. 1903. 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.
"ART. 1903. The obligation imposed by the proceeding 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 mirrors who live with them.
"Guardians are liable for the damages caused by minors or
incapacitated persons who are under their authority and live with
them.
"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 on account
of their duties.
"The State is liable in this sense when it acts through a special
agent, but not when the damage should have been caused by the
official to whom properly it pertained to do the act performed, in
which case the provisions of the preceding article shall be
applicable.
"Finally, masters or directors of arts and trades are liable for the
damages caused by their pupils or apprentices while they are
under their custody.
"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."
These two articles are found under chapter 2, title 16, of the Civil
Code, dealing with "obligations which arise from fault or
negligence;" and set out the cases, generally speaking, in which
the master is liable for the acts of his servant. That chapter also

contains articles providing for liability for negligent acts of

servants in special cases, among them 1905, which provides that
"the possessor of an animal, or the one who uses it, is liable for
the damages it may cause, even when said animal escapes from
him or strays," but that this liability shall cease "in case the
damage should arise from force majeure or from the fault of the
person who may have suffered it;" 1906, which declares that "the
owner of a game preserve shall be liable for damages caused by
the game to neighboring estates, should he not have done what
may have been necessary to avoid increase of the same or should
he have hindered the efforts of the owners of said estates to
hunt;" 1907, which provides for the liability of the owner of a
building "for damages which may result from the collapse of the
whole or a part thereof, if it should occur through the absence of
necessary repairs;" 1908, which states that "owners shall be liable
for damages caused by the explosion of machines which may not
have been cared for with due diligence, and for kindling of
explosive substances, which may not have been placed;" "by
excessive smoke, which may be noxious to persons or property;"
"by the fall of trees, located in places of transit, when not caused
by force majeure;" "by the emanations of sewers of deposits of
infection matters, when constructed without precautions proper
for the place where they are located;" and "the head of a family
who dwells in a house, or in a part of the same, is liable for the
damages by the things which may be thrown or which may fall
therefrom."
These are the only cases under the Civil Code in which damages
may be recovered from the master for the negligent acts of his
servant. As in seen from a reading of article 1903, a person being
driven about by his servant is not liable for injuries done to others
by the servants negligent acts except under certain
circumstances. (Chapman v. Underwood, 27 Phil. Rep., 374;
Johnson v. David, supra.) On the other hand, 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 masters
employment as such owner.
The distinction made in the Code has been observed, as would
naturally be expected, by the decisions of this court. In the case of
Johnson v. David, supra, we held that the defendant was not liable
for the acts of his servant in negligently driving a horse and
carriage against plaintiff, who was at the time riding a bicycle in
the streets of Manila, throwing him to the ground and injuring him
and his bicycle. It appeared in that case that the vehicle was
owned by the defendant, that it was being driven by the
defendants coachman on the private affairs of the owner, that it
was not a public conveyance driven for hire or as a part of a
business or enterprise. In that case we said: "It would seem, from
an examination of these various provisions, that the obligation to
respond for the negligent acts of another was limited to the
particular cases mentioned; in other words, we are of the opinion
and so hold that it was the intention of the legislature in enacting
said chapter 2 to enumerate all the persons for whose negligent
acts third persons are responsible. Article 1902 provides when an
person himself is liable for negligence. Articles 1903, 1904, 1905,
1906, 1907, 1908, and 1910 provide when a person shall be liable
for injuries caused, not by his own negligence but by the
negligence of other persons or things.
x
x
x
These sections do not include a liability on the part of the plaintiff
for injuries resulting from acts of negligence such as are
complained of in the present cause . . . ."
The case of Chapman v. Underwood (27 Phil. Rep., 374) was
similar in its facts and the principles governing it, to that of
Johnson v. David. In that case the plaintiff, while about to board a
street car, was struck by an automobile which, at the time, was
being driven on the wrong side of the street. The automobile was
in charge of the servant of the owner, who was present in the
automobile was not a part of defendants business nor was it
being used at the time as a part of adjunct of any business or
enterprise owned or conducted by him. Although the act of the
driver was negligent, and was so declared by this court, it was,
nevertheless, held that the master was not liable for the results of
the act. We said:
"The defendant, however, is not responsible for the negligence of
his driver, under the facts and circumstances of this case. As we
have said in the case of Johnson v. David (5 Phil. Rep., 663), the
driver does not fall within the list of persons in article 1903 of the
Civil Code for whose acts the defendant would be responsible.
"Although in the David case the owner of the vehicle was not
present at the time the alleged negligent acts were committed by
the driver, the same rule applies where the owner is present,
unless the negligent acts of the driver are continued for such a
length of time as to give the owner a reasonable opportunity to
observe them and to direct his driver to desist therefrom. An
owner who sits in his automobile, or other vehicle, and permits his
driver to continue in a violation of the law by the performance of

negligent acts, after he has had a reasonable opportunity to

observe them and to direct that the driver desist, becomes
himself responsible for such acts. The owner of an automobile
who permits his chauffeur to drive up the Escolta, for example, at
a speed of 60 miles an hour, without any effort to stop him,
although he has had a reasonable opportunity to do so, becomes
himself responsible, both criminally and civilly, for the results
produced by the acts of his chauffeur. On the other hand, if the
driver, by a sudden act of negligence, and without the owner
having a reasonable opportunity to prevent the act or its
continuance, injuries a person or violates the criminal law, the
owner of the automobile, although present therein at the time the
act was committed, is not responsible, either civilly or criminally,
therefor. The act complained of must be continued in the presence
of the owner for such a length of time that the owner, by his
acquiescence, makes his drivers act his own.
"In the case before us it does not appear from the record that,
from the time the automobile took the wrong side of the road to
the commission of the injury, sufficient time intervened to afford
the defendant an opportunity to correct the act of his driver.
Instead, it appears with fair clearness that the interval between
the turning out to meet and pass the street car and the happening
of the accident was so short as not be sufficient to charge
defendant with the negligence of the driver."
The case of Bahia v. Litonjua and Leynes (30 Phil. Rep., 624), was
a case of a different character. There an automobile was being
operated by the defendant as a public vehicle carrying passengers
from Balayan to Tuy (Province of Batangas) and return for hire. On
one of the trips, the machine, by reason of a defect in the steering
gear, refused to respond to the guidance of the driver and, as a
result, a child was run over and killed. That case, as is seen at a
glance, is quite different from the case of Johnson v. David and
that of Chapman v. Underwood, in that the automobile was
operated as a business or enterprise on which the defendant had
entered for gain; and this is the particular distinction which is
made in article 1903 of the Civil Code which holds the master
responsible for the negligent acts of the servant when the master
is the owner "of an establishment or enterprise," and the acts
complained of are committed within the scope of the servants
employment in such business. In the case under discussion we
held that, in addition to the requirement to furnish and use proper
and safe machines, it was the duty of a person or corporation
operating automobiles for hire to exercise ordinary care and
diligence in the selection of the drivers of his or its automobiles
and in supervision over them while in his or its employ, including
the promulgation of proper rules and regulations and the
formulation and due publication of proper instructions for their
guidance in cases where such rules, regulations and instructions
as necessary. Discussing article 1903 of the Civil Code, which, as
we have seen, not only establishes liability in cases of negligence
but also provides when that liability ceases, the court in that case
said:
"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 master 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 the has exercised the care and diligence
of a good father of a family, the presumption is overcome and he
is relieved from liability.
"This theory bases the responsibility of the master ultimately on
his own negligence and not on that of his servant. This is the
notable peculiarity of the Spanish law of negligence. It is, of
course, in striking contrast to the American doctrine that, in
relations with strangers, the negligence of the servant is
conclusively the negligence of the master.
"In the case before us the death of the child caused by a defect in
the steering gear of the automobile immediately raised the
presumption that Leynes was negligent in selecting a defective
automobile or in his failure to maintain it in good condition after
selection and the burden of proof was on him to show that he had
exercised the care of a good father of a family."
In that case we further said" "From the commencement of the use
of the machine until the accident occurred sufficient time had not
elapsed to require an examination of the machine by the
defendant as a part of his duty of inspection and supervision.
While it does not appear that the defendant formulated rules and
regulations for the guidance of the drivers and gave them proper
instructions, designed for the protection of the public and the
passengers, the evidence shows, as we have seen, that the death
of the child was not caused by a failure to promulgate rules and
regulations. It was caused by a defect in the machine as to which
the defendant has shown himself free from responsibility."

We, therefore, see that the taxicab company did not perform its
full duty when it furnished a safe and proper car and a driver with
a long and satisfactory record. It failed to comply with one of the
essential requirements of the law of negligence in this jurisdiction,
that of supervision and instruction, including the promulgation of
proper rules and regulations and the formulation and publication
of proper instructions for their guidance in cases where such rules
and regulations and instructions are necessary. To repeat, it was
found by the trial court, and that finding is fully sustained by the
record, that it was the custom of the driver who operated the
machine on the night of the accident, to approach and pass over
railroad crossings without adequate precautions, and that such
custom was known to and had been sanctioned by the officials of
the taxicab company, the president of the company testifying that
none of its drivers, especially the one who operated the machine
on the night of the accident, to approach and pass over railroad
crossings without adequate precautions, and that such custom
was known to and had been sanctioned by the officials of the
taxicab company, the president of the company testifying that
none of its drivers, especially the one who operated the car on the
night of the accident, were accustomed to stop or even reduce
speed or take any other precaution in approaching and passing
over railroad crossings, no matter of what nature, unless they
heard "the signal of a car." He testified that he himself had ridden
behind several of his drivers, among them the one who handled
the automobile on the night of the accident, and that it was their
settled practice, to which he made no objection and as to which
he gave no instructions, to approach and pass over railroad
crossings without any effort to ascertain the proximity of a train.
These facts and circumstances bring the case within the doctrine
enunciated in the Litonjua case to which reference has already
been made, and, at the same time, remove it from that class of
cases governed by Johnson v. David. Not only has the defendant
taxicab company failed to rebut the presumption of negligence
arising from the carelessness of its servant, but it has, in effect,
made those negligent acts its own by having observed and known
the custom of its drivers without disapproving it and without
issuing instructions designed to supersede it.
We are of the opinion that the trial court erred in fixing the
amount of damages which the plaintiffs suffered. Under the law,
each of the plaintiffs is entitled to recover the damages which he
actually suffered, consisting in loss of time, doctors bills and
hospital bills and medicines, and any other item of expense which
it was found necessary to undergo by reason of the damages
sustained.
The plaintiff Butaro Yamada is entitled to be reimbursed for his
hospital bill of P49, for the P50 which he paid to Dr. Strahan, and
for the loss of time which he suffered at the rate of P100 a month.
The trial court allowed him for certain alleged fees of doctors and
expenses in hospitals and at hot springs in Japan. He was also
allowed P150 alleged by him to have been paid to a Japanese
doctor in Manila. We do not believe that the record warrants these
allowances. As to the expenses in Japan, we may say that the
injury occurred to plaintiff on the 2nd of January and he remained
in Manila for nearly 6 months before going to Japan. His testimony
is to the effect that the plaintiff was in good physical condition
long before going to Japan. According to the testimony of Dr.
Strahan the plaintiff was in good physical condition long before he
left this country for Japan. His testimony is to the effect that the
plaintiff suffered no permanent injuries, the damage being limited
to temporary shocks and bruises, and that he would be ready for
his usual occupation in about 3 months. According to plaintiffs
own testimony he went back to work 2 months after the injury,
but, claiming he still felt pains, went to Japan. We do not believe
that we ought to accept the plaintiffs bare statement as to his
physical condition after leaving the Philippine Islands in defiance
of the testimony of Dr. Strahan as to his physical condition 3
months after the injury was received and particularly in view of
the fact that he returned to work at the end of 2 months. As to the
P150 alleged to have been paid to a Japanese doctor in Manila, we
have grave doubts whether he has sufficiently proved that item of
expenditure. He does not give the name of the physician to whom
he paid the money and he presents no receipt or voucher from the
person whom he paid. He made no memorandum of the payment
at the time or of the name of the person to whom he paid it or of
the date in which it was paid. All of his testimony relating to the
items which constitute his damage was based on a memorandum
made from memory on the morning of the trial. It seems to us
that where the sources of knowledge are to so large an extent
within the knowledge and control of the person who presents the
evidence, he should be held rather strictly to presenting the best
evidence that the circumstances permit. If he had offered the
Japanese doctor as a witness or if he had evenproduced receipts
from him, the matter would have borne quite a different aspect.
We are accordingly of the opinion that the judgment in favor of
this plaintiff should consist simply of the loss of time, amounting
to 2 months at P100 a month, his hospital bill of P49 and his
doctors bill of P50, in all P299, with costs.
With respect to the plaintiff Takutaru Uyehara, the judgment in his

favor must also be modified. Concerning his condition we have

substantially the same testimony by the same doctor that we had
in the case of Yamada. There were no permanent injuries. The
plaintiff suffered merely from shock and bruises. He was quite
recovered in 3 months. It appears that he was earning P200 a
month at the time of his injury and that his hospital expense,
including attendance of a physician, was P350. We are satisfied
from the record that he is entitled to P600 for 3 months loss of
wages and to P350 for hospital expenses and medical attendance.
As to the claim for P150 paid to a Japanese doctor, we have in
substance the same circumstances found in connection with the
claim of the plaintiff himself based upon data prepared from
memory. It is worthy of note also that both this plaintiff and
plaintiff Yamada claim to have paid exactly the same amount to
Japanese doctors in Manila.
Judgment is hereby rendered in favor of the plaintiff Takutaru
Uyehara for the sum of P950, and costs.
With respect to the judgment in favor of the plaintiff Kenjiro
Karabayashi, we are clear that it must be reduced in amount. This
plaintiff was able, immediately after accident occurred, to move
about readily and to assist his injured companions. He did not go
to a hospital, or, so far as appears, consult a physician until some
time after the accident. He alleges that he paid to Japanese
doctors P310 and to message doctors P130, and that he paid P365
for medicines. The injury was received on the 2nd of January,
1913, and this action was commenced in October of the same
year. It seems to us incredible that the plaintiff, who suffered and
suffers from no physical injury testified to by any physician,
should have paid out during that time more than P800 for
medicines and doctors. That sum exceeds the sums claimed to
have been paid out by the other plaintiffs, who were so badly
injured that they were carried in a semiconscious condition to the
hospital and were unable to move without assistance for some
days.
This plaintiff complains of loss of memory as the only result of his
injuries and claims that he is unable to obtain a salary equivalent
to that which he has receiving before the accident. He presents no
evidence of such loss of memory except his own statement, his
physical condition at the time of the trial being apparently perfect
and there being at that time no evidence as he himself admitted,
of loss of memory. He presented no doctor to testify as to services
rendered, indeed, he does not even furnish the name of the
person to whom the money was paid, and he shows no receipts
and produces no evidence except his own statement with respect
to the amount paid out for medicines. We believe that, under this
testimony, no damages should be allowed to this plaintiff except
possibly salary for the short period during which, by reason of
shock, he may have been unable to render active service. He
testified that he lost two and one-half months time, during which
he did not work at all, and that his services were worth P160 a
month.
The judgment of the Court of First Instance with respect to this
plaintiff, Kenjiro Karabayashi, is modified and judgment in his
favor and against the Bachrach Garage & Taxicab Co. for P400 is
hereby decreed, with costs.
It may be urged that the reductions in the amounts allowed the
several plaintiffs by the trial court are arbitrary, the evidence as to
the damages sustained being uncontradicted and the trial court
having accepted it as true and having based its judgment thereon.
It is clear, however, that we are in no way interfering with the rule
so many times laid down by this court that we will not interfere
with the judgment of the trial court as to the credibility of
witnesses except where it appears that the court overlooked or
misapplied facts and circumstances to which we have adverted
and which we have made the basis of the modification. It nowhere
appears in the decision of the trial court or elsewhere in the
record that it took any of those facts and circumstances into
consideration. So ordered.
SECOND DIVISION
[G.R. No. 39587. March 24, 1934. ]
ALEKO E. LILIUS, ET AL., Plaintiffs-Appellants, v. THE
MANILA RAILROAD COMPANY, Defendant-Appellant.
SYLLABUS
1. NEGLIGENCE; RAILROAD COMPANY; DAMAGES. A railroad
company which does not install a semaphore at a crossing and
does not see to it that its flagman and switchman faithfully
complies with his duty of remaining at the crossing when a train
arrives, is guilty of negligence and is civilly liable for damages
suffered by a motorist and his family who cross its line without
negligence on their part.
2. ID.; ID.; ID.; AMOUNT OF DAMAGES. An indemnity of P10,000

for a permanent deformity on the face and left leg, suffered by a

young and beautiful society woman, is not excessive.
3. ID.; ID.; ID.; ID. an indemnity of P5,000 for a permanent
deformity on the face and legs of a four-year old girl belonging to
a well-to-do family, is not excessive.
4. ID.; ID.; ID.; PROOF OF DAMAGES. In order that a husband
may recover damages for deprivation of his wifes assistance
during her illness from an accident, it is necessary for him to
prove the existence of such assistance and his wifes willingness
to continue rendering the same had she not been prevented from
so doing by her illness.
DECISION
VILLA-REAL, J.:
This case involves two appeals, one by the defendant the Manila
Railroad Company, and the other by the plaintiffs Aleko E. Lilius
Et. Al., from the judgment rendered by the Court of First Instance
of Manila, the dispositive part of which reads as follows:
"Wherefore, judgment is rendered ordering the defendant
company to pay to the plaintiffs, for the purposes above stated,
the total amount of P30,865, with the costs of the suit. And
although the suit brought by the plaintiffs has the nature of a joint
action, it must be understood that of the amount adjudicated to
the said plaintiffs in this judgment, the sum of P10,000 personally
belongs to the plaintiff Sonja Maria Lilius; the sum of P5,000, to
the plaintiff Brita Marianne Lilius; the sum of P250, to Dr. Marfori
of the Calauan Hospital, Province of Laguna, and the balance to
the plaintiff Aleko E. Lilius."
In support of its appeal, the appellant the Manila Railroad
Company assigns nine alleged errors as committed by the trial
court in its said judgment, which will be discussed in the course of
this decision.
As a ground of their appeal, the appellants Aleko E. Lilius Et. Al., in
turn, assign two alleged errors as committed by the same court a
quo in its judgment in question, which will be discussed later.
This case originated from a complaint filed by Aleko E. Lilius Et.
Al., praying, under the facts therein alleged, that the Manila
Railroad Company be ordered to pay to said plaintiffs, by way of
indemnity for material and moral damages suffered by them
through the fault and negligence of the said defendant entitys
employees, the sum of P50,000 plus legal interest thereon from
the date of the filing of the complaint, with costs.
The defendant the Manila Railroad Company, answering the
complaint, denies each and every allegation thereof and, by way
of special defense, alleges that the plaintiff Aleko E. Lilius, with
the cooperation of his wife and co-plaintiff, negligently and
recklessly drove his car, and prays that it be absolved from the
complaint.
The following facts have been proven at the trial, some without
question and the others by a preponderance of evidence, to
wit:chanrob1es virtual 1aw library
The plaintiff Aleko E. Lilius has, for many years, been a well-known
and reputed journalist, author and photographer. At the time of
the collision in question, he was a staff correspondent in the Far
East of the magazines The American Weekly of New York and The
Sphere of London.
Some of his works have been translated into various languages.
He had others in preparation when the accident occurred.
According to him, his writings netted him a monthly income of
P1,500. He utilized the linguistic ability of his wife Sonja Maria
Lilius, who translated his articles and books into English, German,
and Swedish. Furthermore, she acted as his secretary.
At about 7 oclock on the morning of May 10, 1931, the plaintiff,
his wife Sonja Maria Lilius, and his 4-year old daughter Brita
Marianne Lilius, left Manila in their Stude-baker car driven by
the said plaintiff Aleko E. Lilius for the municipality of
Pagsanjan, Province of Laguna, on a sight-seeing trip. It was the
first time that he made said trip although he had already been to
many places, driving his own car, in and outside the Philippines.
Where the road was clear and unobstructed, the plaintiff drove at
the rate of from 19 to 25 miles an hour. Prior thereto, he had
made the trip as far as Calauan, but never from Calauan to
Pagsanjan, via Dayap. He was entirely unacquainted with the
conditions of the road at said points and had no knowledge of the
existence of a railroad crossing at Dayap. Before reaching the
crossing in question, there was nothing to indicate its existence
and inasmuch as there were many houses, shrubs and trees along
the road, it was impossible to see an approaching train. At about
seven or eight meters from the crossing, coming from Calauan,
the plaintiff saw an autotruck parked on the left side of the road.
Several people, who seemed to have alighted from the said truck,
were walking on the opposite side. He slowed down to about 12
miles an hour and sounded his horn for the people to get out of

the way. With his attention thus occupied, he did not see the
crossing but he heard two short whistles. Immediately afterwards,
he saw a huge black mass fling itself upon him, which turned out
to be locomotive No. 713 of the defendant companys train
coming eastward from Bay to Dayap station. The locomotive
struck the plaintiffs car right in the center. After dragging the said
car a distance of about ten meters, the locomotive threw it upon a
siding. The force of the impact was so great that the plaintiffs
wife and daughter were thrown from the car and were picked up
from the ground unconscious and seriously hurt. In spite of the
efforts of engineer Andres Basilio, he was unable to stop the
locomotive until after it had gone about seventy meters from the
crossing.
On the afternoon of the same day, the plaintiffs entered St. Pauls
Hospital in the City of Manila where they were treated by Dr.
Waterous. The plaintiff Aleko E. Lilius suffered from a fractured
nose, a contusion above the left eye and a lacerated wound on
the right leg, in addition to multiple contusions and scratches on
various parts of the body. As a result of the accident, the said
plaintiff was highly nervous and very easily irritated, and for
several months he had great difficulty in concentrating his
attention on any matter and could not write articles nor short
stories for the newspapers and magazines to which he was a
contributor, thus losing for some time his only means of
livelihood.
The plaintiff Sonja Maria Lilius suffered from fractures of the pelvic
bone, the tibia and fibula of the right leg, below the knee, and
received a large lacerated wound on the forehead. She underwent
two surgical operations on the left leg for the purpose of joining
the fractured bones but said operations notwithstanding, the leg
in question still continues deformed. In the opinion of Dr.
Waterous, the deformity is permanent in character and as a result
the plaintiff will have some difficulty in walking. The lacerated
wound, which she received on her forehead, has left a disfiguring
scar.
The child Brita Marianne Lilius received two lacerated wounds,
one on the forehead and the other on the left side of the face, in
addition to fractures of both legs, above and below the knees. Her
condition was serious and, for several days, she was hovering
between life and death. Due to a timely and successful surgical
operation, she survived her wounds. The lacerations received by
the child have left deep scars which will permanently disfigure her
face, and because of the fractures of both legs, although now
completely cured, she will be forced to walk with some difficulty
and continuous extreme care in order to keep her balance.
Prior to the accident, there had been no notice nor sign of the
existence of the crossing, nor was there anybody to warn the
public of approaching trains. The flagman or switchman arrived
after the collision, coming from the station with a red flag in one
hand and a green one in the other, both of which were wound on
their respective sticks. The said flagman and switchman had
many times absented himself from his post at the crossing upon
the arrival of a train. The train left Bay station a little late and
therefore traveled at great speed.
Upon examination of the oral as well as of the documentary
evidence which the parties presented at the trial in support of
their respective contentions, and after taking into consideration all
the circumstances of the case, this court is of the opinion that the
accident was due to negligence on the part of the defendantappellant company, for not having had on that occasion any
semaphore at the crossing at Dayap, to serve as a warning to
passers-by of its existence in order that they might take the
necessary precautions before crossing the railroad; and, on the
part of its employees the flagman and switchman, for not
having remained at his post at the crossing in question to warn
passers-by of the approaching train; the stationmaster, for failure
to send the said flagman and switchman to his post on time; and
the engineer, for not having taken the necessary precautions to
avoid an accident, in view of the absence of said flagman and
switchman, by slackening his speed and continuously ringing the
bell and blowing the whistle before arriving at the crossing.
Although it is probable that the defendant-appellant entity
employed the diligence of a good father of a family in selecting its
aforesaid employees, however, it did not employ such diligence in
supervising their work and the discharge of their duties because,
otherwise, it would have had a semaphore or sign at the crossing
and, on previous occasions as well as on the night in question, the
flagman and switchman would have always been at his post at the
crossing upon the arrival of a train. The diligence of a good father
of a family, which the law requires in order to avoid damage, is
not confined to the careful and prudent selection of subordinates
or employees but includes inspection of their work and
supervision of the discharge of their duties.
However, in order that a victim of an accident may recover
indemnity for damages from the person liable therefor, it is not
enough that the latter has been guilty of negligence, but it is also
necessary that the said victim has not, through his own

negligence, contributed to the accident, inasmuch as nobody is a

guarantor of his neighbors personal safety and property, but
everybody should look after them, employing the care and
diligence that a good father of a family should apply to his own
person, to the members of his family and to his property, in order
to avoid any damage. It appears that the herein plaintiff-appellant
Aleko E. Lilius took all precautions which his skill and the presence
of his wife and child suggested to him in order that his pleasure
trip might be enjoyable and have a happy ending, driving his car
at a speed which prudence demanded according to the
circumstances and conditions of the road, slackening his speed in
the face of an obstacle and blowing his horn upon seeing persons
on the road, in order to warn them of his approach and request
them to get out of the ways, as he did when he came upon the
truck parked on the left hand side of the road seven or eight
meters from the place where the accident occurred, and upon the
persons who appeared to have alighted from the said truck. If he
failed to stop, look and listen before going over the crossing, in
spite of the fact that he was driving at 12 miles per hour after
having been free from obstacles, it was because, his attention
having been occupied in attempting to go ahead, he did not see
the crossing in question, nor anything, nor anybody indicating its
existence, as he knew nothing about it beforehand. The first and
only warning, which he received of the impending danger, was
two short, blows from the whistle of the locomotive immediately
preceding the collision and when the accident had already
become inevitable.
In view of the foregoing considerations, this court is of the opinion
that the defendant the Manila Railroad Company alone is liable for
the accident by reason of its own negligence and that of its
employees, for not having employed the diligence of a good
father of a family in the supervision of the said employees in the
discharge of their duties.
The next question to be decided refers to the sums of money fixed
by the court a quo as indemnities for damages which the
defendant company should pay to the plaintiffs-appellants.
With respect to the plaintiff-appellant Aleko E. Lilius, although this
court believes his claim of a net income of P1,500 a month to be
somewhat exaggerated, however, the sum of P5,000, adjudicated
to him by the trial court as indemnity for damages, is reasonable.
As to the sum of P10,635 which the court awards to the plaintiffs
by way of indemnity for damages, the different items thereof
representing doctors fees, hospital and nursing services, loss of
personal effects and torn clothing, have duly been proven at the
trial and the sum in question is not excessive, taking into
consideration the circumstances in which the said expenses have
been incurred.
Taking into consideration the fact that the plaintiff Sonja Maria
Lilius, wife of the plaintiff Aleko E. Lilius is in the language of
the court, which saw her at the trial "young and beautiful and
the big scar, which she has on her forehead caused by the
lacerated wound received by her from the accident, disfigures her
face and that the fracture of her left leg has caused a permanent
deformity which renders it very difficult for her to walk", and
taking into further consideration her social standing, neither is the
sum of P10,000, adjudicated to her by the said trial court by way
of indemnity for patrimonial and oral damages, excessive. In the
case of Gutierrez v. Gutierrez (56 Phil., 177), the right leg of the
plaintiff Narciso Gutierrez was fractured as a result of a collision
between the autobus in which he was riding and the defendants
car, which fracture required medical attendance for a considerable
period of time. On the day of the trial the fracture had not yet
completely healed but it might cause him permanent lameness.
The trial court sentenced the defendants to indemnity him in the
sum of P10,000 which this court reduced to P5,000, in spite of the
fact that the said plaintiff therein was neither young nor goodlooking, nor had be suffered any facial deformity, nor did he have
the social standing that the herein plaintiff-appellant Sonja Maria
Lilius enjoys.
As to the indemnity of P5,000 in favor of the child Brita Marianne
Lilius, daughter of Aleko E. Lilius and Sonja Maria Lilius, neither is
the same excessive, taking into consideration the fact that the
lacerations received by her have left deep scars that permanently
disfigure her face and that the fractures of both her legs
permanently render it difficult for her to walk freely, continuous
extreme care being necessary in order to keep her balance in
addition to the fact that all of this unfavorably and to a great
extent affect her matrimonial future.
With respect to the plaintiffs appeal, the first question to be
decided is that raised by the plaintiff Aleko E. Lilius relative to the
insufficiency of the sum of P5,000 which the trial court
adjudicated to him by way of indemnity for damages consisting in
the loss of his income as journalist and author as a result of his
illness. This question has impliedly been decided in the negative
when the defendant-appellant entitys petition for the reduction of
said indemnity was denied, declaring it to be reasonable.

As to the amount of P10,000 claimed by the plaintiff Aleko E. Lilius

as damages for the loss of his wifes services in his business as
journalist and author, which services consisted in going over his
writings, translating them into English, German and Swedish, and
acting as his secretary, in addition to the fact that such services
formed part of the work whereby he realized a net monthly
income of P1,500, there is no sufficient evidence of the true value
of said services nor to the effect that he needed them during her
illness and had to employ a translator to act in her stead.
The plaintiff Aleko E. Lilius also seeks to recover the sum of
P2,500 for the loss of what is called Anglo-Saxon common law
"consortium" of his wife, that is, "her services, society and
conjugal companionship", as a result of personal injuries which
she had received from the accident now under consideration.
In the case of Goitia v. Campos Rueda (35 Phil., 252, 255, 256),
this court, interpreting the provisions of the Civil Marriage Law of
1870, in force in these Islands with reference to the mutual rights
and obligations of the spouses contained in articles 44-48 thereof,
said as follows:
"The above quoted provisions of the Law of Civil Marriage and the
Civil Code fix the duties and obligations of the spouses. The
spouses must be faithful to, assist, and support each other. The
husband must live with and protect his wife. The wife must obey
and live with her husband and follow him when he changes his
domicile or residence, except when he removes to a foreign
country . . ."
Therefore, under the law and the doctrine of this court, one of the
husbands rights is to count on his wifes assistance. This
assistance comprises the management of the home and the
performance of household duties, including the care and
education of the children and attention to the husband upon
whom primarily devolves the duty of supporting the family of
which he is the head. When the wifes mission was circumscribed
to the home, it was not difficult to assume, by virtue of the
marriage alone, that she performed all the said tasks and her
physical incapacity always redounded to the husbands prejudice
inasmuch as it deprived him of her assistance. However,
nowadays when women, in their desire to be more useful to
society and to the nation, are demanding greater civil rights and
are aspiring to become mans equal in all the activities of life,
commercial and industrial, professional and political, many of
them spending their time outside the home, engaged in their
businesses, industry, profession and within a short time, in
politics, and entrusting the care of their home to a housekeeper,
and their children, if not to a nursemaid, to public or private
institutions which take charge of young children while their
mothers are at work, marriage has ceased to create the
presumption that a woman complies with the duties to her
husband and children, which the law imposes upon her, and he
who seeks to collect indemnity for damages resulting from
deprivation of her domestic services must prove such services. In
the case under consideration, apart from the services of his wife
Sonja Maria Lilius as translator and secretary, the value of which
has not been proven, the plaintiff Aleko E. Lilius has not presented
any evidence showing the existence of domestic services and
their nature, rendered by her prior to the accident in order that it
may serve as a basis in estimating their value.
Furthermore, inasmuch as a wifes domestic assistance and
conjugal companionship are purely personal and voluntary acts
which neither of the spouses may be compelled to render (Arroyo
v. Vazquez de Arroyo, 42 Phil., 54), it is necessary for the party
claiming indemnity for the loss of such services to prove that the
person obliged to render them had done so before he was injured
and that he would be willing to continue rendering them had he
not been prevented from so doing.
In view of the foregoing considerations this court is of the opinion
and so holds: (1) That a railroad company which has not installed
a semaphore at a crossing and does not see to it that its flagman
and switchman faithfully complies with his duty of remaining at
the crossing when a train arrives, is guilty of negligence and is
civilly liable for damages suffered by a motorist and his family
who cross its line without negligence on their part; (2) that an
indemnity of P10,000 for a permanent deformity on the face and
on the left leg, suffered by a young and beautiful society woman,
is not excessive; (3) that an indemnity of P5,000 for a permanent
deformity on the face and legs of a four-year old girl belonging to
a well-to-do family, is not excessive; and (4) that in order that a
husband may recover damages for deprivation of his wifes
assistance during her illness from an accident, it is necessary for
him to prove the existence of such assistance and his wifes
willingness to continue rendering it had she not been prevented
from so doing by her illness.
The plaintiffs-appellants are entitled to interest of 6 per cent per
annum on the amount of the indemnities adjudicated to them,
from the date of the appealed, judgment until this judgment

becomes final, in accordance with the provisions of section 510 of

Act No. 190.
Wherefore, not finding any error in the judgment appealed from, it
is hereby affirmed in toto, with the sole modification that interest
of 6 per cent per annum from the date of the appealed judgment
until this judgment becomes final will be added to the indemnities
granted, with the costs of both instances against the appellant. So
ordered.

EN BANC
[G.R. No. 9331. July 31, 1957. ]
JOSE A. ORTALIZ, Plaintiff-Appellant, v. CONRADO
ECHARRI, Defendant-Appellee.
SYLLABUS
1. CIVIL LIABILITY; SUBSIDIARY LIABILITY OF EMPLOYERS FOR
DAMAGES CAUSED BY THEIR EMPLOYEES. Employers shall be
liable for the damages caused by their employees acting within
the scope of their assigned tasks, even though the former are not
engaged in any business or industry. (Par. 5, Art. 2180, new Civil
Code.)
2. ID.; ACTION FOR DAMAGES ARISING FROM PHYSICAL INJURIES
DISTINCT FROM CRIMINAL ACTION. In cases of physical injuries,
a civil action for damages, entirely separate and distinct from the
criminal action, may be brought by the injured party. Such civil
action shall proceed independently of the criminal prosecution,
and shall require only a preponderance of evidence. (Art. 33, new
Civil Code).
DECISION
ENDENCIA, J.:
Plaintiff-appellant seeks the reversal of the order of the Court of
First Instance of Negros Occidental dismissing the case on the
ground that the complaint does not state a cause of action.
On February 19, 1953, plaintiff filed in the court below a complaint
wherein, after stating the legal personalities of the parties, he
averred the following:
"2. That the plaintiff is the lawful father of the child, Winston
Ortaliz, had in legitimate wedlock with Elena Lucasan;
"3. That on or about December 18, 1953, at the corner of
Washington and Justicia Streets, Bacolod City, Philippines, the
Studebaker Sedan Car with Plate No. 35-1138 of the defendant
struck the plaintiffs son, Winston Ortaliz, causing upon him
physical injuries as a result of which he was taken to the
Occidental Negros Provincial Hospital as evidenced by the medical
certificate herewith attached and marked as Annex "A" of this
complaint;
"4. That the said Studebaker Sedan Car with Plate No. 35-1138
was at the time of the accident, driven and controlled by
Segundino Estanda, a driver under the employ of the defendant,
without due care and diligence and with negligence and
recklessness and violation of traffic rules and regulations;
"5. That an information was filed in the Municipal Court of the City
of Bacolod which was docketed as Criminal Case No. 2607 against
the said Segundino Estanda for the crime of Slight Physical
Injuries Through Reckless Imprudence, a copy of said Information
is hereto attached marked as Annex "B" and made an integral
part of this complaint;
"6. That the said Segundino Estanda pleaded guilty to the crime
charged in the Information and he was finally sentenced to suffer
the penalty of five (5) days of Arresto Menor and to pay the costs
in a Decision rendered in said case, copy of which Decision is
hereto attached marked as Annex "C" and made an integral part
of this complaint;
"7. That the said Decision, Annex "C" has long become final and
said Segundino Estanda has already served the penalty metted to
him by virtue thereof;
"8. That the plaintiff has suffered damages in the form of
expenses paid for the hospitalization, medicines, physicians fees
and incidental expense of his son, Winston Ortaliz, in the amount
P446.58;
"9. That the plaintiff, by reason of the accident met by his said
son, Winston Ortaliz, as above-stated, through the fault,
negligence and recklessness of Segundino Estanda for whose acts
the defendant is responsible because he was at the time
employed by him (defendant) as his driver, has also suffered,
because of the mental anguish, fright, serious anxiety, wounded
feelings and moral shock, moral damages in the amount of TWO
THOUSAND PESOS (P2,000), Philippine Currency;
"10. That the boy, Winston Ortaliz, was strong, robust and happy
before the accident that caused on him physical injuries which

necessitated his hospitalization and medical attention, and was

not suffering nor had he ever suffered from any illness;
"11. That demands have been made on the defendant to pay the
plaintiff the sum of P2,446.55 for actual, consequential and moral
damages, but the defendant refused and still refuses to pay the
same, and that by reason of the refusal of the defendant, the
plaintiff was forced to secure the services of an attorney paying
the latter the sum of P500.
"WHEREFORE, it is respectfully prayed that a decision be
rendered;
"1. Sentencing the defendant to pay the plaintiff the sum of
P2,446.55 for the actual, consequential and moral damages plus
an additional sum of P500 for attorneys fees;
"2. To pay the costs of this suit, and
"3. Plaintiff be granted any other remedy that is just and equitable
and proper in law."

that there is no allegation in the complaint that "the defendant

was engaged in some kind of industry and that the employee had
committed the crime in the discharge of his duties in connection
with such industry," hence the defendant cannot be held
subsidiarily liable for the crime committed by his driver and
therefore the complaint failed to state facts sufficient to constitute
a cause of action. But paragraph 5 of Article 2180 refutes this
contention for it clearly provides that "Employers shall be liable
for the damages caused by their employees acting within the
scope of their assigned tasks, even though the former are not
engaged in any business or industry."
Defendant-appellee also contends that when the judgment in
Criminal Case No. 2607 of the Municipal Court of Bacolod was
rendered against the driver Segundino Estanda, plaintiff did not
reserve the civil action and thus he lost his right thereto and
consequently the present action against the defendant-appellee
would not lie. This contention, however, is untenable, for Article
33 of the Civil Code clearly provides:

On March 18, 1953, the defendant-appellee filed a motion to

dismiss wherein, after admitting the ownership of the Studebaker
Sedan car with plate No. 35-1138, he alleged the following:

"ART. 33. In cases of physical injuries, a civil action for damages,

entirely separate and distinct from the criminal action, may be
brought by the injured party. Such civil action shall proceed
independently of the criminal prosecution, and shall require only a
preponderance of evidence."

"(a) That the case at bar is one for recovery of damages arising
from the crime of Slight Physical Injuries as borne out by the
allegations of the complaint itself.

Wherefore, the order of dismissal entered by the lower court is

hereby revoked and the case remanded to said court for further
proceedings. Without costs.

"(b) That defendant is being sued in his capacity as the employer

of the perpetrator of the said crime, Segundino Estanda, and, as
deducible from the allegations of the complaint, for defendants
supposed subsidiary civil liability arising therefrom under the
Revised Penal Code.
"(d) That the complaint does not allege that defendant was nor is
engaged in any business or industry in conjunction with which he
has at any time used the said car, much less on the occasion of
the alleged accident, nor that defendant had at any time put out
the said car for hire.
"(e) That the obligation or liability of defendant, if any, for the
damages alleged in the complaint, being an obligation arising
from a criminal offense, is governed by Article 1161 of the Civil
Code, which, in turn, makes the penal laws applicable thereto.
"(f) That, under Article 103 of the Revised Penal Code, it is
essential, in order for an employer to be liable subsidiarily for
felonies committed by his employee, that the former be engaged
in some kind of industry, and that the employer had committed
the crime in the discharge of his duties in connection with such
industry.
"(g) That, therefore, defendant cannot be held subsidiarily liable
for the crime committed by his driver as alleged in plaintiffs
complaint.
"PREMISES CONSIDERED, defendant respectfully plays this Hon.
Court to dismiss the complaint, the same having failed to state a
cause of action, with costs."
Thereafter the parties submitted their respective memoranda on
whether the complaint failed to state a cause of action and the
Court, after taking into consideration the arguments advanced by
the parties, dismissed the complaint.
Plaintiff now contends that under paragraph 2 of Article 2884 of
the Civil Code and paragraphs 1 and 5 of Article 2180, a sufficient
cause of action has been clearly alleged in the disputed complaint
and therefore the same should not have been dismissed. Article
2180 in part provides:
"ART. 2180. The obligation imposed by article 2176 is demandable
not only for ones own acts or omissions, but also for those of
persons for whom one is responsible.
"Employers shall be liable for the damages caused by their
employees and household helpers acting within the scope of their
assigned tasks, even though the former are not engaged in any
business or industry."
and Article 2184 in its last paragraph provides:
"If the owner was not in the motor vehicle, the provisions of
Article 2180 are applicable."
Having in view the aforequoted provisions of law and those of
Article 2176 to the effect that "Whoever by act or omission causes
damage to another, there being fault or negligence, is obliged to
pay for the damage done", there seems to be good reason to
support plaintiffs contention that the complaint in question states
sufficient cause of action. Defendant-appellee, however, claims

FIRST DIVISION
[G.R. No. 46237. September 27, 1939. ]
ROSALIO MARQUEZ ET AL., Plaintiffs-Appellees, v.
BERNARDO CASTILLO, Defendant-Appellant.
SYLLABUS
DAMAGES THROUGH THE FAULT OR NEGLIGENCE OF A
CHAUFFEUR; SUBSIDIARY CIVIL LIABILITY OF THE MASTER. The
subsidiary civil liability of the master, according to the provisions
of article 103 of the Revised Penal Code, arises and takes place
only when the servant, subordinate or employee commits a
punishable criminal act while in the actual performance of his
ordinary duties and service, and he is insolvent thereby rendering
him incapable of satisfying by himself his own civil liability. The
general rule regarding the obligation to repair the damage done,
besides the one established in article 103 of the Revised Penal
Code, is that he, who by an act or omission causes the damage
through his fault or negligence, is the one called upon to repair
the same (art. 1902, Civil Code). This rule, which extends only to
cases mentioned in articles 1903 to 1910 of said Code, is in no
way applicable to the appellant, all the more so because, as the
lower court makes clear in its decision, neither was he in his car at
the time of the accident for which M. C. was sentenced to pay an
indemnity of P500 to the heirs of the deceased M, nor was he
negligent in the selection of his chauffeur, since he hired in his
service precisely one who is duly licensed to drive a car.
DECISION
DIAZ, J.:
The plaintiffs and appellees surnamed Marquez sought to collect
from the defendant and appellant, in the Court of First Instance of
Tayabas, an indemnity in the sum of P4,900 for the death of
Fernanda Marquez on whom they claim to be dependent for
support, which death was caused by the reckless imprudence of
Mariano Capulong, the defendants chauffeur who ran over her on
April 30,1937, in the barrio of Lusacan of the municipality of
Tiaong, Province of Tayabas. The plaintiff and appellee Maria
Chomacera, in turn, sought to collect from the same defendant
another indemnity in the sum of P100 for certain injuries received
by her from the same cause and under the same circumstances
which resulted in the death of said Fernanda Marquez.
The defendant defended himself by alleging that the death of
Fernanda Marquez was due to the exclusive fault and negligence
of the chauffeur Mariano Capulong, and that in the selection and
employment of the latter, as such, in his service, he exercised the
due diligence of a good father of a family, so that he should not be
made to answer for the damages caused by the imprudence of
said employee. To this defense of the defendant, who at the same
time alleged in his answer a counterclaim seeking an indemnity in
the sum of P300 for the annoyance caused him by the plaintiffs,
by compelling him to defend himself in the case, thereby incurring
expenses in order to secure the services of an attorney, the
plaintiffs and appellees filed a reply contending that it is of no
avail to the defendant to have exercised the due diligence of a
good father of a family in the selection and employment of the
chauffeur Mariano Capulong, claiming that the latter was duly
licensed as such chauffeur, because, under the provisions of
article 103 of the Revised Penal Code, he is, at any rate, bound

subsidiarily to answer for the civil liability of said servant,

subordinate, employee or chauffeur, for the reason that when the
latter caused the death of the deceased Marquez, he was in the
employ of the defendant.
During the trial, the parties filed a stipulation of facts which
appears inserted in the appealed decision, as follows:
"That Mariano Capulong is the same accused convicted and
sentenced in criminal case No. 7103 of this court, as evidenced by
the judgment dated May 6, 1937.
x
x
x
"That said Mariano Capulong is insolvent, according to the
investigations conducted by us to this date.
"1. That the defendant Bernardo Castillo has exercised i due
diligence as a good father of a family in selecting the chauffeur
Mariano Capulong, and the plaintiffs admit that said chauffeur
Mariano Capulong possesses an automobile drivers license which,
for purposes of identification, we request to be marked as Exhibit
A, as a conclusive evidence of his having exercised due diligence.
"2. That the defendant Bernardo Castillo is not engaged in any
kind of business or industry on or about April 30, 1937, the date of
the accident.
"3. That the defendant Bernardo Castillo was not riding in the car
at the time of the accident, and he did not know that his car was
taken by the chauffeur Mariano Capulong.
"4. That, by reason of this complaint, the defendant has suffered
damages in the sum of P300 in order to prepare his defense.
"That Fernanda Marquez, that is, the offended party in criminal
case No. 7103, was earning at the rate of P1 a day on the date of
her death; and that said Fernanda Marquez was only 50 years old
when she died.
"That the coplaintiff Maria Chomacera was earning at the rate of
P1.20 a day at the time she received the injuries mentioned in the
above-stated affidavit of Mariano Capulong, and that she incurred
for her treatment expenses amounting to P100, as alleged in the
complaint, while Fernanda Marquez spent for her burial and
funeral the sum of P300, as alleged in the complaint."
It should be noted that in said stipulation, there is a provision
appearing in paragraph 3 thereof, which reads as follows:
"That the defendant Bernardo Castillo was not riding in the car at
the time of the accident, and he did not know that his car was
taken by the chauffeur Mariano Capulong."
This fact decides the question because it clearly shows that the
accident did not occur in the course of the performance of the
duties or service for which said chauffeur Mariano Capulong had
been hired. The defendant did not hire him to do as he pleased,
using the defendants car as if it were his own. His duties and
service were confined to driving his masters car as the latter
ordered him, and the accident did not take place under said
circumstances. The subsidiary civil liability of the master,
according to the provisions of article 103 of said Revised Penal
Code, arises and takes place only when the servant, subordinate
or employee commits a punishable criminal act while in the actual
performance of his ordinary duties and service, and he is insolvent
thereby rendering him incapable of satisfying by himself his own
civil liability.
The general rule regarding the obligation to repair the damage
done, besides the one established in article 103 of the Revised
Penal Code, is that he, who by an act or omission causes the
damage through his fault or negligence, is the one called upon to
repair the same (art. 1902, Civil Code). This rule, which extends
only to cases mentioned in articles 1903 to 1910 of said Code, is
in no way applicable to the appellant, all the more so because, as
the lower court makes clear in its decision, neither was he in his
car at the time of the accident for which Mariano Capulong was
sentenced to pay an indemnity of P500 to the heirs of the
deceased Marquez, nor was he negligent in the selection of his
chauffeur, since he hired in his service precisely one who is duly
licensed to drive a car.
For the foregoing reasons, the appealed judgment is reversed,
with the costs de oficio. So ordered.

EN BANC
[G.R. No. 9734. March 31, 1915. ]
JUAN BAHIA, Plaintiff-Appellant, v. FAUSTA LITONJUA,
defendant-appellee, and MARIANO LEYNES, DefendantAppellant.

Felipe Agoncillo for appellant Bahia.

Ramon Biokno for appellee Litonjua.
Silvestre Apacible for appellant Leynes.
SYLLABUS
1. MASTER AND SERVANT; NEGLIGENCE OF SERVANT;
PRESUMPTION OF NEGLIGENCE OF EMPLOYER. Under article
1903 of the Civil Code, if an injury is caused by the negligence of
a servant or employee the law presumes that there was
negligence on the part of the master or employer either in the
selection of the servant or employee or in supervision over him
after the selection, or both.
2. ID.; ID.; ID.; REBUTTAL. Such presumption is not a conclusive
presumption, but is a rebuttable one; and if the master or
employer shows to the satisfaction of the court that in selection
and supervision he exercised the care and diligence of a good
father of a family, the presumption is overcome and he is relieved
from liability.
3. ID; SUPERVISION BY EMPLOYEE. Supervision includes, in
proper cases, the making and promulgation by the employer of
suitable rules and regulations and the issuance of suitable
instructions for the information and guidance of his employees,
designed for the protection of persons with whom the employer
has relations through his employees.
4. ID.; RELATION OF PARTIES. A person engaging temporarily an
automobile, with a driver and mechanic, for the carrying of
passengers for hire, who obtains the machine, driver and
mechanic from a reputable garage, selecting a machine at the
time in apparent good condition and a driver and mechanic of
experience and reputation and duly licensed under the law, is not
liable for the death of a child who was struck by the automobile, it
appearing that the accident was caused by a defect in the
steering gear, neither the employer nor his employees having
notice, either actual or constructive, of such defect.
DECISION
MORELAND, J.:
This is an appeal by the defendant Leynes from a judgment of the
Court of First Instance of Manila against him for the sum of
P1,000, with costs; and by the plaintiff from a judgment
dismissing the complaint as to the defendant Fausta Litonjua.
This is an action to recover damages from the defendants for the
death of plaintiffs daughter alleged to have been caused by the
negligence of defendants servant in driving an automobile over
the child and causing her death.
It appears from the evidence that one Ramon Ramirez was the
owner and manager of a garage in the city of Manila known as the
International Garage. His mother, the defendant Fausta Litonjua,
sometime before the accident from which this action springs,
purchased an automobile and turned it over to the garage to
assist her son in the business in which he was engaged. On the
14th of May, 1911, Ramirez rented the automobile so purchased
and donated by his mother to the defendant Mariano Leynes,
together with a chauffeur and a machinist, to be used by him for a
short time between Palayan and Tuy, Province of Batangas, to
carry persons living in Balayan to and from the fiesta which was
about to take place in Tuy. According to the arrangement between
them, Ramirez was to furnish the automobile, chauffeur, and
machinist, and the defendant Leynes was to pay him therefor P20
a day.
On the 16th of May, 1911, while passing from Balayan to Tuy, the
automobile, by reason of a defect in the steering gear, refused to
obey the direction of the driver in turning a corner in the streets of
Balayan, and, as a consequence, ran across the street and into
the wall of a house against which the daughter of plaintiff was
leaning at the time. The front of the machine struck the child in
the center of the body and crushed her to death.
The action was brought against the mother of Ramirez, who
bought the automobile, and Leynes, under whose direction and
control the automobile was being operated at the time of the
accident. Ramirez was not made a party. The plaintiff and the
defendant Leynes appealed from the judgment, the former on the
ground that the court erred in dismissing the action as to the
mother of Ramirez and the latter from that portion of the
judgment requiring him to pay to plaintiff P1,000.
We are of the opinion that the action was properly dismissed as to
Fausta Litonjua. It is a fact proved in the action and undisputed
that, although the mother purchased the automobile, she turned it
over to the garage of her son for use therein. The establishment
belonged to the son, Ramon Ramirez, and he had the full
management and control of it and received all the profits
therefrom. So far as appears, the contract with Leynes was made
without her knowledge or consent by Ramirez as the owner and
manager of the International Garage. While she may have been in
one sense the owner of the machine, that fact does not, under the
other facts of the case, make her responsible for the results of the

accident.
We are of the opinion that the judgment against Leynes must be
reversed and the complaint dismissed as to him. While it may be
said that, at the time of the accident, the chauffeur who was
driving the machine was a servant of Leynes, in as much as the
profits derived from the trips of the automobile belonged to him
and the automobile was operated under his direction,
nevertheless, this fact is not conclusive in making him responsible
for the negligence of the chauffeur or for defects in the
automobile itself. Article 1903 of the Civil Code not only
establishes liability in cases of negligence, but also provides when
that 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 master or employer either in the selection of the
servant or employee, or in supervision over him after the
selection, or both; and (2) that 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 relieved from liability.
This theory bases the responsibility of the master ultimately on
his own negligence and not on that of his servant. This is the
notable peculiarity of the Spanish law of negligence. It is, of
course, in striking contrast to the American doctrine that, in
relations with strangers, the negligence of the servant is
conclusively the negligence of the master.
In the case before us the death of the child caused by a defect in
the steering gear of the automobile immediately raised the
presumption that Leynes was negligent in selecting a defective
automobile or in his failure to maintain it in good condition after
selection, and the burden of proof was on him to show that he had
exercised the care of a good father of a family. 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. From the commencement of the use of the machine until the
accident occurred sufficient time had not elapsed to require an
examination of the machine by the defendant as a part of his duty
of inspection and supervision. While it does not appear that the
defendant formulated rules and regulations for the guidance of
the drivers and gave them proper instructions, designed for the
protection of the public and the passengers, the evidence shows,
as we have seen, that the death of the child was not caused by a
failure to promulgate rules and regulations. It was caused by a
defect in the machine as to which the defendant has shown
himself free from responsibility.
The defendant Leynes having shown to the satisfaction of the
court that he exercised the care and diligence of a good father of
a family is relieved of responsibility with respect to the death of
plaintiffs child.
The judgment, in so far as it dismisses the complaint against
Fausta Litonjua, is affirmed with costs, and, in so far as it finds
against Mariano Leynes, is reversed and the complaint as to him
is dismissed, without special finding as to costs in this instance.
So ordered.
SECOND DIVISION
[G.R. No. 32640. December 29, 1930. ]
WALTER A. SMITH & CO., INC., Plaintiff-Appellant, v.
CADWALLADER GIBSON LUMBER COMPANY, DefendantAppellee.
Jose Erquiaga for Appellant.
DeWitt, Perkins & Brady for Appellee.
SYLLABUS
1. DAMAGES; RESPONSIBILITY FOR DAMAGES CAUSED TO A
WHARF BY A STEAMSHIP. By virtue of the facts stated in the
decision and the doctrines therein cited, It is held: That, inasmuch

as the defendant company, owner of the steamer Helen C, which

caused the damages, giving rise to the controversy at the wharf of
the plaintiff, had employed a duly licensed captain, authorized to
navigate and direct a vessel of any tonnage, and inasmuch as the
appellee contracted his services because of his reputation as a
captain, 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 said captain.
DECISION
VILLAMOR, J.:
On August 30, 1926, the steamer Helen C, belonging to the
defendant, the Cadwallader Gibson Lumber Co., under the
command of Captain Miguel Lasa, in the course of its maneuvers
to moor at the plaintiffs wharf in the port of Olutanga,
Zamboanga, struck said wharf, partially demolishing it and
throwing the timber piled thereon into the water. Whereupon the
plaintiff brought the instant action to recover of the defendant the
sum of P9,705.83 as damages for the partial demolition of the
wharf and for the loss of the timber piled thereon.
The defendant denied the plaintiffs causes of action, and in
defense alleged that the demolition of the wharf was due to the
excessive weight of thousands of board feet of timber piled upon
it by the plaintiff to be loaded and shipped on the steamer Helen
C and to the bad condition of the piles supporting said wharf.
In view of the evidence adduced by both parties, the trial court
held that the defendant was not liable for the partial collapse of
the plaintiffs wharf, and for the loss of the timber piled thereon,
dismissing the complaint with costs against the plaintiff.
The judge who took cognizance of this cause held:
"The evidence shows that said wharf was built in 1921 and
repaired in 1925. The repairs, according to the deposition of
Wilson C. Smith, a witness for the plaintiff, consisted in replacing 6
bents of piles leaving more than 9 old bents of piles without being
replaced. Therefore, the wharf of the plaintiff was old. The court is
inclined to believe that the steamer Helen C slightly struck the
dock but not with force, for it was difficult for her to strike it with
force, as hereinbefore stated, and due to the bad condition of the
dock the slight impact was sufficient to destroy it. The bent of the
piles toward the east side of the dock, as may be seen from the
pictures Exhibits E and F, after its destruction, does not
necessarily mean that the destruction of the wharf was caused by
a strong impact, as the weight of the 60,000 board feet of lumber
piled thereon, after such slight impact by the steamer against the
dock, might have caused said piles to lean toward that side."
We are of opinion that this finding is supported by the evidence. In
this connection, it is to be noted that the witness, Dionisio Pascua
(for the plaintiff) testified that the 60,000 board feet occupied
one-fourth of the wharf. In other words, by the testimony of the
plaintiffs witnesses it has been proved that the plaintiff company
piled up on the wharf a quantity of timber which exceeded its
capacity of resistance, because if the whole wharf had a capacity
of 100,000 board feet of timber, one-fourth of it could sustain onefourth of that amount, or, about 25,000 board feet of timber. But it
appears that the plaintiff company loaded 60,000 board feet,
weighing over 100 tons, within a space capable of supporting only
25,000 board feet. This must have helped to bring about the
collapse of the wharf on the eastern side and the consequent
sliding down of the timber piled up on the one side.
The court below did not make any definite finding as to the
negligence of the captain, but the plaintiff apparently infers that
there was negligence on his part, considering the testimony of its
witness Venancio Ignacio to the effect that the impact of the ship
with the wharf was due to the excessive force with which the
captain ordered the winches to work. This was denied by the
captain, testifying for the defendant. If, to this denial, we add the
facts found by the trial court that said captain dropped two
anchors from the prow and the kedge-anchor from the poop, and
besides, fastened two lines of cables to the piles ordinarily used
by vessels in docking at that wharf, as preliminary to drawing the
vessel alongside the wharf, it will be seen that said winches must
have been carefully operated, and if any force was employed in
working them, it was doubtless due to the fact that the vessel had
already dropped anchor and could not move rapidly and the
drawing of the vessel up to the wharf was against the stream
which flowed from east to west. We do not believe that the mere
statement of the witness Ignacio who has not been shown to
possess technical knowledge of the maneuvers for docking
vessels, is sufficient to justify a holding that the fore employed by
the winches on that occasion was excessive under the
circumstances of the case, especially so if the captains testimony
is to be considered, that the winches were carefully operated.
The witnesses for the plaintiff state that the steamer Helen C
struck the wharf twice, but the trial court, after examining the
evidence, found said testimony to be exaggerated.
As has been stated, the plaintiff seeks to recover against the

owner of the steamer Helen C, with whom it had no contractual

relations basing its action on the acts of Captain Lasa who was in
command of the vessel when docking at the plaintiffs wharf in
Olutanga, Zamboanga. In support of its contention, the plaintiff
cites the doctrine laid down in the case of Ohta Development Co.
v. Steamship Pompey (49 Phil., 117), wherein it was held that the
defendant company, as ship-owner, was liable for the indemnities
arising from the lack of skill or from negligence of the captain.
In the case cited, the steamship Pompey, under the command of
Captain Alfredo Galvez, was carrying cargo consisting principally
of flour and rice for the plaintiff. The ship docked with her bow
facing the land and fastened her cables to the posts on the pier.
The evidence shows that heretofore other ships docking alongside
said pier had the bow facing the land and fastened a cable to a
tree situated farther west on the beach, a precaution taken to
avoid the ship getting too close to the pier. When the Pompey
docked, at the time in question, she did not fasten the cable to
the tree on the shore, nor drop her kedge-anchors from the prow.
After being docked, they proceeded to unload the flour and rice
which were first deposited on the pier and later transported to the
plaintiffs warehouse on land, where it was officially receipted for.
The work of discharging and hauling the cargo to the plaintiffs
warehouse was accomplished without any intervention on the part
of the plaintiff and exclusively by laborers and the crew of the
ship. The unloading of the cargo on to the pier was hastily done
and there being but fifteen or twenty laborers engaged in hauling
it to the plaintiffs warehouse, a large amount of cargo
accumulated on the dock. At 11.10 that morning, the pier sank
with all the merchandise.
As may be noted, the facts in that case were different from those
in the case in question. In the former a contract of marine
transportation existed between the plaintiff and the defendant,
whereas in the latter no previous contractual relation existed
between the parties. For this reason, the case of Ohta
Development Co. was decided upon articles 587 and 618 of the
Code of Commerce. But the instant case, dealing, as it does, with
an obligation arising from culpa aquiliana or negligence, must be
decided in accordance with articles 1902 and 1903 of the Civil
Code.
Article 1902 of the Civil Code prescribes:
"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."
An article 1903 of the said Code states:
"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, or in case of his death, or incapacity, the mother, is
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 any establishment or business are, in the
same way, 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 and 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 subject thereto prove that they exercised all the diligence
of a good father of a family to prevent the damage."
In the case of Maryland Casualty Co. v. Matson Nav. Co. (177 Cal.,
610, 612), in an action similar to the present, the court held:
". . . the plaintiff could only recover, if at all, upon a sufficient
showing of negligence on the part of the defendants in the
handling of their ship, as a result of which the injury complained
of arose; and if the finding of the trial court, to the effect that
there was no negligence in respect to the matter complained of on
the part of the defendants, is sustained by sufficient evidence,
there is an end to the plaintiffs case."
The same doctrine was upheld by the Supreme Court of Spain in
its judgment of June 23, 1900, in deciding a case similar to the

one at bar, where the plaintiff was a third person without any
contractual relation with the defendant before the acts were
committed which gave rise to the complaint. In that judgment, the
court said:
". . . the action for damages caused by an act or omission arising
from fault or negligence, requires an allegation of one or the other
of said causes, which is the basis of said action, according to
articles 1089, 1093, 1902, and 1903 of the Civil Code; and such
proof must be made by the plaintiff in accordance with the
general principle of evidence regarding obligations as laid down in
article 1214; and it not sufficient merely to suggest what at any
rate cannot be admitted that from the mere existence of
damage, liability must be presumed and that the defendant must
rebut such a presumption."
And Manresa, commenting on article 1902 of the Civil Code,
among other things, says the following:
"Among the questions most frequently raised and upon which the
majority of cases have been decided with respect to the
application of this liability, are those referring to the determination
of the damage or prejudice, and to the fault or negligence of the
person responsible therefor.
"These are the two indispensable factors in the obligations under
discussion, for without damage or prejudice there can be no
liability, and although this element is present to indemnity can be
awarded unless arising from some persons fault or negligence.
"With respect to the determination of damages, it must be definite
and the injury must not be occasioned by the performance of an
obligation or by acts or omissions of the injured party himself; and
for the proof of the fault or negligence, mere suggestions or
inadmissible presumptions will not suffice, but such evidence
must be adduced as to exclude all doubt regarding their existence
and relation to the injury, for, in order to give rise to an obligation,
there must be between the fault or negligence and the evil
resulting therefrom, a casual relation." (12 Manresa, 601, 602.)
In Cangco v. Manila Railroad Co. (38 Phil., 768), this court held
that article 1903 of the Civil Code is not applicable to obligations
arising from contracts, but only to obligations arising without any
agreement; or, to employ technical language, that article refers
only to culpa aquiliana and not to culpa contractual.
Manresa (Vol. VIII, page 67) in his commentaries on articles 1103
and 1104 of the Civil Code clearly sets forth this distinction, which
was also recognized by this court in the case of Rakes v. Atlantic,
Gulf and Pacific Co. (7 Phil., 359). In commenting upon article
1093 (Vol. VIII, page 30) Manresa points out the difference
between "culpa substantive and independent, which, by itself,
gives rise to an obligation between persons not formerly bound by
any other obligation" and culpa considered as an "incident in the
performance of an obligation which already existed . . . ."
In the Rakes case (supra), this court based its decision expressly
on the principle that article 1903 of the Civil Code is not
applicable to a culpa not arising from a contract. On this point the
court said:
"The acts to which these articles (1902 and 1903 of the Civil
Code) are applicable are understood to be those not growing out
of preexisting 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."
(Rakes v. Atlantic, Gulf and Pacific Co., 7 Phil., 359, 365.)
It is not true that proof of due diligence and care in the selection
of and instructions to a servant relieves the master of liability for
the formers acts; on the contrary, such proof shows that that
liability never existed. As Manresa (Vol. VIII, page 68) says, the
liability arising from an extra-contractual wrong is always based
upon a voluntary act or omission, which, while free from any
wrongful intent, and due to mere negligence or carelessness,
causes damage to another. A master who takes all possible
precaution in selecting his servants or employees, bearing in mind
the qualifications necessary for the performance of the duties to
be entrusted to them, and instructs them with equal care,
complies with his duty to all third parties to whom he is not bound
under contract, and incurs no liability if, by reason of the
negligence of such servants though it be during the performance
of their duties as such, third parties should suffer damages. It is
true that under article 1903 of the Civil Code, the law presumes
that the master, if regarded as an establishment, has been
negligent in the selection of, or instruction to, its servants, but
that is a mere juris tantum presumption and is destroyed by the
evidence of due care and diligence in this respect.
The Supreme Court of Porto Rico, construing identical provisions in
the Civil Code of Porto Rico, held that these articles are applicable
only to cases of extra-contractual wrong. (Carmona v. Cuesta, 20

Porto Rico Reports, 215.)

This distinction was clearly stated by this court in Bahia v. Litonjua
and Leynes (30 Phil., 624), wherein the action was based on the
defendants extra-contractual liability for damages occasioned by
the carelessness of an employee of his, in the performance of his
duty as such. This court, after citing the last paragraph of article
1903 of the Civil Code, held:
"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 master 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 relieved from liability.
"This theory bases the responsibility of the master ultimately on
his own negligence and not on that of his servant. This is the
notable peculiarity of the Spanish law of negligence. It is, of
course, in striking contrast to the American doctrine that, in
relations with strangers, the negligence of the servant is
conclusively the negligence of the master."
The opinion of this court is thus expressed, to the effect that in
case of extra-contractual wrong, some fault personally imputable
to the defendant must exist, and that the last paragraph of article
1903 only establishes a rebuttable presumption and is on all fours
with Manresas authoritative opinion (Vol. XII, page 611), that the
liability created by article 1903 is enforced by reason of nonperformance of duties inherent in the special relations of authority
or superiority existing between the person liable for the damage
done and the person who by his act or omission has caused it.
The defendant contends in its answer that the captain and all the
officers of the steamer Helen C were duly licensed and authorized
to hold their respective positions at the time when the wharf in
question collapsed, and that said captain, officers, and all the
members of the crew of the steamer had been chosen for their
reputed skill in directing and navigating the steamer Helen C,
safely, carefully, and efficiently. The evidence shows that Captain
Lasa at the time the plaintiffs 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 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.
By virtue of the foregoing, the judgment appealed from must be,
as it is hereby, affirmed, with costs against the appellant. So
ordered.
EN BANC
[G.R. No. L-7664. August 29, 1958. ]
MR. AND MRS. AMADOR C. ONG, Plaintiffs-Appellants, v.
METROPOLITAN WATER DISTRICT, Defendant-Appellee.

SYLLABUS
1. DAMAGES; FAULT OR NEGLIGENCE; CLAIMANT HAS BURDEN TO
PROVE. The person claiming damages has the burden of
proving that the damages is caused by the fault or negligence of
the person from whom the damage is claimed, or of one of his
employees (Walter A. Smith & Co. v. Cadwallader Gibson Lumber
Co., 55 Phil., 517).
2. ID.; ABSENCE OF NEGLIGENCE OF OPERATOR OF SWIMMING
POOLS; DROWNING OR DEATH OF PATRON. The operator of
swimming pools will not be held liable for the drowning or death of
3 patron, if said operator had exercised due diligence in the
election of, and supervision over, its employees and that it had
observed the diligence required by law under the circumstances
in that it has taken all necessary precautions to avoid danger to
the lives of its patrons or prevent accident. which may cause their
death.
3. WORDS AND PHRASES; "DOCTRINE OF LAST CLEAR CHANCE."
The doctrine of last clear chance simply means that the
negligence of a claimant does not preclude a recovery for the
negligence of defendant where it appears that the latter, by
exercising reasonable care and prudence, might have avoided
injurious consequences to claimant notwithstanding his

negligence. Or "As the doctrine usually is stated, a person who

has the last clear chance or opportunity of avoiding an accident,
notwithstanding the negligent acts of his opponent or the
negligence of a third person which is imputed to his opponent, is
considered in law solely responsible for the consequences of the
accident." (38 Am. Jur. pp. 900-902.)
DECISION
BAUTISTA ANGELO, J.:
Plaintiffs spouses seek to recover from defendant, a governmentowned corporation, the sum of P50,000 as damages, P5,000 as
funeral expenses, and P11,000 as attorneys fees, for the death of
their son Dominador Ong in one of the swimming pools operated
by defendant.
Defendant admits the fact that plaintiffs son was drowned in one
of its swimming pools but avers that his death was caused by his
own negligence or by unavoidable accident. Defendant also avers
that it had exercised due diligence in the selection of, and
supervision over, its employees and that it had observed the
diligence required by law under the circumstances.
After trial, the lower court found that the action of plaintiffs is
untenable and dismissed the complaint without pronouncement
as to costs. Plaintiffs took the case on appeal directly to this Court
because the amount involved exceeds the sum of P50,000.
Defendant owns and operates three recreational swimming pools
at its Balara filters, Diliman, Quezon City, to which people are
invited and for which a nominal fee of P0.50 for adults and P0.20
for children is charged. The main pool is between two small pools
of oval shape known as the "Wading pool" and the "Beginners
Pool." There are diving boards in the big pools and the depths of
the water at different parts are indicated by appropriate marks on
the wall. The care and supervision of the pools and the users
thereof is entrusted to a recreational section composed of Simeon
Chongco as chief, Armando Rule, a male nurse, and six lifeguards
who had taken the life-saving course given by the Philippine Red
Cross at the YMCA in Manila. For the safety of its patrons,
defendant has provided the pools with a ring buoy, toy roof,
towing line, saving kit and a resuscitator. There is also a sanitary
inspector who is in charge of a clinic established for the benefit of
the patrons. Defendant has also on display in a conspicuous place
certain rules and regulations governing the use of the pools, one
of which prohibits the swimming in the pool alone or without any
attendant. Although defendant does not maintain a full- time
physician in the swimming pool compound, it has however a nurse
and a sanitary inspector ready to administer injections or operate
the oxygen resuscitator if the need should arise.
In the afternoon of July 5, 1952, at about 1:00 oclock, Dominador
Ong, a 14-year old high school student and a boy scout, and his
brothers Ruben and Eusebio, went to defendants swimming
pools. This was not the first time that the three brothers had gone
to said natatorium for they had already been there four or five
times before. They arrived at the natatorium at about 1:45 p.m.
After paying the requisite admission fee, they immediately went
to one of the small pools where the water was shallow. At about
4:35 p.m., Dominador Ong told his brothers that he was going to
the locker room in an adjoining building to drink a bottle of coke.
Upon hearing this, Ruben and Eusebio went to the bigger pool
leaving Dominador in the small pool and so they did not see the
latter when he left the pool to get a bottle of coke. In that
afternoon, there were two lifeguards on duty in the pool
compound, namely, Manuel Abao and Mario Villanueva. The tour
of duty of Abao was from 8:00 to 12:00 in the morning and from
2:00 to 6:00 in the afternoon, and of Villanueva from 7:30 to 11:30
a.m. and from 12:30 to 4:30 p.m. Between 4:00 to 5:00 that
afternoon, there were about twenty bathers inside the pool area
and Manuel Abao was going around the pools to observe the
bathers in compliance with the instructions of his chief.
Between 4:40 to 4:45 p.m., some boys who were in the pool area
informed a bather by the name of Andres Hagad, Jr., that
somebody was swimming under water for quite a long time.
Another boy informed lifeguard Manuel Abao of the same
happening and Abao immediately jumped into the big swimming
pool and retrieved the apparently lifeless body of Dominador Ong
from the bottom. The body was placed at the edge of the pool and
Abao immediately applied manual artificial respiration. Soon
after, male nurse Armando Rule came to render assistance,
followed by sanitary inspector Iluminado Vicente who, after being
called by phone from the clinic by one of the security guards,
boarded a jeep carrying with him the resuscitator and a medicine
kit, and upon arriving he injected the boy with camphorated oil.
After the injection, Vicente left on a jeep in order to fetch Dr.
Ayuyao from the University of the Philippines. Meanwhile, Abao
continued the artificial manual respiration, and when this failed to
revive him, they applied the resuscitator until the two oxygen
tanks were exhausted. Not long thereafter, Dr. Ayuyao arrived
with another resuscitator, but the same became of no use
because he found the boy already dead. The doctor ordered that
the body be taken to the clinic.

In the evening of the same day, July 5, 1952, the incident was
investigated by the Police Department of Quezon City and in the
investigation boys Ruben Ong and Andres Hagad, Jr. gave written
statements. On the following day, July 6, 1952, an autopsy was
performed by Dr. Enrique V. de los Santos, Chief, Medico Legal
Division, National Bureau of Investigation, who found in the body
of the deceased the following: an abrasion on the right elbow
lateral aspect; contusion on the right forehead; hematoma on the
scalp, frontal region, right side; a congestion in the brain with
petechial subcortical hemorrhage, frontal lobe; cyanosis on the
face and on the nails; the lung was soggy with fine froth in the
bronchioles; dark fluid blood in the heart; congestion in the
visceral organs, and brownish fluid in the stomach. The death was
due to asphyxia by submersion in water.
The issue posed in this appeal is whether the death of minor
Dominador Ong can be attributed to the negligence of defendant
and/or its employees so as to entitle plaintiffs to recover
damages.
The present action is governed by Article 2176 in relation to
Article 2080 of the new Civil Code. The first article provides that
"whoever by act or omission causes damage to another, there
being fault or negligence, is obliged to pay for the damages
done." Such fault or negligence is called quasi-delict. Under the
second article, this obligation is demandable not only for ones
own acts or omissions but also for those of persons for whom one
is responsible. In addition, we may quote the following authorities
cited in the decision of the trial court:
"The rule is well settled that the owners of resorts to which
people generally are expressly or by implication invited are legally
bound to exercise ordinary care and prudence in the management
and maintenance of such resorts, to the end of making them
reasonably safe for visitors (Larkin v. Saltair Beach Co., 30 Utah
86, 83 Pac. 688).
"Although the proprietor of a natatorium is liable for injuries to a
patron, resulting from lack of ordinary care in providing for his
safety, without the fault of the patron, he is not, however, in any
sense deemed to be the insurer of the safety of patrons. And the
death of a patron within his premises does not cast upon him the
burden of excusing himself from any presumption of negligence
(Bertalot v. Kinnare. 72 Ill. App. 52, 22 A. L. R. 635; Flora v. Bimini
Water Co., 161 Cal. 495, 119 Pac. 661). Thus in Bertalot v.
Kinnare, supra, it was held that there could be no recovery for the
death by drowning of a fifteen-year boy in defendants
natatorium, where it appeared merely that he was lastly seen
alive in water at the shallow end of the pool, and some ten or
fifteen minutes later was discovered unconscious, and perhaps
lifeless, at the bottom of the pool, all efforts to resuscitate him
being without avail."
Since the present action is one for damages founded on culpable
negligence, the principle to be observed is that the person
claiming damages has the burden of proving that the damage is
caused by the fault or negligence of the person from whom the
damage is claimed, or of one of his employees (Walter A. Smith &
Co. v. Cadwallader Gibson Lumber Co., 55 Phil., 517). The question
then that arises is: Have appellants established by sufficient
evidence the existence of fault or negligence on the part of
appellee so as to render it liable for damages for the death of
Dominador Ong?
There is no question that appellants had striven to prove that
appellee failed to take the necessary precaution to protect the
lives of its patrons by not placing at the swimming pools efficient
and competent employees who may render help at a moments
notice, and they ascribed such negligence to appellee because
the lifeguard it had on the occasion minor Ong was drowning was
not available or was attending to something else with the result
that his help came late. Thus, appellants tried to prove through
the testimony of Andres Hagad, Jr. and Ruben Ong that when
Eusebio Ong and Hagad, Jr. detected that there was a drowning
person in the bottom of the big swimming pool and shouted to the
lifeguard for help, lifeguard Manuel Abao did not immediately
respond to the alarm and it was only upon the third call that he
threw away the magazine he was reading and allowed three or
four minutes to elapse before retrieving the body from the water.
This negligence of Abao, they contend, is attributable to
appellee.
But the claim of these two witnesses not only was vehemently
denied by lifeguard Abao, but is belied by the written statements
given by them in the investigation conducted by the Police
Department of Quezon City approximately three hours after the
happening of the accident. Thus, these two boys admitted in the
investigation that they narrated in their statements everything
they knew of the accident, but, as found by the trial nowhere in
said statements do they state that the lifeguard was chatting with
the security guard at the gate of the swimming pool or was
reading a comic magazine when the alarm was given for which

reason he failed to immediately respond to the alarm. On the

contrary, what Ruben Ong particularly emphasized therein was
that after the lifeguard heard the shouts for help, the latter
immediately dived into the pool to retrieve the person under
water who turned out to be his brother. For this reason, the trial
court made this conclusion: "The testimony of Ruben Ong and
Andres Hagad, Jr. as to the alleged failure of the lifeguard Abao
to immediately respond to their call may therefore be disregarded
because they are belied by their written statements." (Emphasis
supplied.) .
On the other hand, there is sufficient evidence to show that
appellee has taken all necessary precautions to avoid danger to
the lives of its patrons or prevent accident which may cause their
death. Thus, it has been shown that the swimming pools of
appellee are provided with a ring buoy, toy roof, towing line,
oxygen resuscitator and a first aid medicine kit. The bottom of the
pools is painted with black colors so as to insure clear visibility.
There is on display in a conspicuous place within the area certain
rules and regulations governing the use of the pools. Appellee
employs six lifeguards who are all trained as they had taken a
course for that purpose and were issued certificates of proficiency.
These lifeguards work on schedule prepared by their chief and
arranged in such a way as to have two guards at a time on duty to
look after the safety of the bathers. There is a male nurse and a
sanitary inspector with a clinic provided with oxygen resuscitator.
And there are security guards who are available always in case of
emergency. .
The record also shows that when the body of minor Ong was
retrieved from the bottom of the pool, the employees of appellee
did everything possible to bring him back to life. Thus, after he
was placed at the edge of the pool, lifeguard Abao immediately
gave him manual artificial respiration. Soon thereafter, nurse
Armando Rule arrived, followed by sanitary inspector Iluminado
Vicente who brought with him an oxygen resuscitator. When they
found that the pulse of the boy was abnormal, the inspector
immediately injected him with camphorated oil. When the manual
artificial respiration proved ineffective they applied the oxygen
resuscitator until its contents were exhausted. And while all these
efforts were being made, they sent for Dr. Ayuyao from the
University of the Philippines who however came late because
upon examining the body found him to be already dead. All of the
foregoing shows that appellee has done what is humanly possible
under the circumstances to restore life to minor Ong and for that
reason it is unfair to hold it liable for his death.
Sensing that their former theory as regards the liability of
appellee may not be of much help, appellants now switch to the
theory that even if it be assumed that the deceased is partly to be
blamed for the unfortunate incident, still appellee may be held
liable under the doctrine of "last clear chance" for the reason that,
having the last opportunity to save the victim, it failed to do so.
We do not see how this doctrine may apply, considering that the
record does not show how minor Ong came into the big swimming
pool. The only thing the record discloses is that minor Ong
informed his elder brothers that he was going to the locker room
to drink a bottle of coke but that from that time on nobody knew
what happened to him until his lifeless body was retrieved. The
doctrine of last clear chance simply means that the negligence of
a claimant does not preclude a recovery for the negligence of
defendant where it appears that the latter, by exercising
reasonable care and prudence, might have avoided injurious
consequences to claimant notwithstanding his negligence. Or, "As
the doctrine usually is stated, a person who has the last clear
chance or opportunity of avoiding an accident, notwithstanding
the negligent acts of his opponent or the negligence of a third
person which is imputed to his opponent, is considered in law
solely responsible for the consequences of the accident." (38 Am.
Jur. pp. 900-902)
"It goes without saying that the plaintiff himself was not free from
fault, for he was guilty of antecedent negligence in planting
himself in the wrong side of the road. But as we have already
stated, the defendant was also negligent; and in such case the
problem always is to discover which agent is immediately and
directly responsible. It will be noted that the negligent acts of the
two parties were not contemporaneous, since the negligence of
the defendant succeeded the negligence of the plaintiff by an
appreciable interval. Under these circumstances, the law is that a
person who has the last clear chance to avoid the impending
harm and fails to do so is chargeable with the consequences,
without reference to the prior negligence of the other party."
(Picart v. Smith, 37 Phil., 809)
Since it is not known how minor Ong came into the big swimming
pool and it being apparent that he went there without any
companion in violation of one of the regulations of appellee as
regards the use of the pools, and it appearing that lifeguard
Abao responded to the call for help as soon as his attention was
called to it and immediately after retrieving the body all efforts at
the disposal of appellee had been put into play in order to bring

him back to life, it is clear that there is no room for the application
of the doctrine now invoked by appellants to impute liability to
appellee.
"The last clear chance doctrine can never apply where the party
charged is required to act instantaneously, and if the injury cannot
be avoided by the application of all means at hand after the peril
is or should have been discovered; at least in cases in which any
previous negligence of the party charged cannot be said to have
contributed to the injury. OMally v. Eagan, 77 ALR 582, 43 Wyo.
233, 350, 2, P2d 1063." (A.L.R. Digest, Vol. 8, pp. 955-956)
Before closing, we wish to quote the following observation of the
trial court, which we find supported by the evidence: "There is
(also) a strong suggestion coming from the expert evidence
presented by both parties that Dominador Ong might have dived
where the water was only 5.5 feet deep, and in so doing he might
have hit or bumped his forehead against the bottom of the pool,
as a consequence of which he was stunned, and which eventually
led to his drowning. As a boy scout he must have received
instructions in swimming. He knew, or must have known, that it
was dangerous for him to dive in that part of the pool."
Wherefore, the decision appealed from being in accordance with
law and the evidence, we hereby affirm the same, without
pronouncement as to costs.
FIRST DIVISION
[G.R. No. 48930. February 23, 1944. ]
ANTONIO VAZQUEZ, Petitioner, v. FRANCISCO DE
BORJA, Respondent.
[G.R. No. 48931. February 23, 1944. ]
FRANCISCO DE BORJA, Petitioner, v. ANTONIO
VAZQUEZ, Respondent.
SYLLABUS
1. CORPORATIONS; OFFICERS PERSONAL LIABILITY ON
CONTRACTS. It is well known that a corporation is an artificial
being invested by law with a personality of its own, separate and
distinct from that of its stockholders and from that of its officers
who manage and run its affairs. The mere fact that its personality
is owing to a legal fiction and that it necessarily has to act thru its
agents, does not make the latter personally liable on a contract
duly entered into, or for an act lawfully performed, by them for
and in its behalf. The legal fiction by which the personality of a
corporation is created is a practical reality and necessity. Without
it no corporate entities may exist and no corporate business may
be transacted. Such legal fiction may be disregarded only when
an attempt is made to use it as a cloak to hide an unlawful or
fraudulent purpose. No such thing has been alleged or proven in
this case. It has not been alleged nor even intimated that Vazquez
personally benefited by the contract of sale in question and that
he is merely invoking the legal fiction to avoid personal liability.
Neither is it contended that he entered into said contract for the
corporation in bad faith and with intent to defraud the plaintiff. We
find no legal and factual basis upon which to hold him liable on
the contract either principally or subsidiarily.
2. ID.; ID.; NEGLIGENCE. The trial court found him guilty of
negligence in the performance of the contract and held him
personally liable on that account. On the other hand, the Court of
Appeals found that he "no solamente obro con negligencia, sino
interviniendo culpa de su parte, por lo que de acuerdo con los
arts. 1102, 1103 y 1902 del Codigo Civil, el debe ser responsable
subsidiariamente del pago de la cantidad objeto de la demanda."
We think both the trial court and the Court of Appeals erred in law
in so holding. They have manifestly failed to distinguish a
contractual from an extracontractual obligation, or an obligation
arising from contract from an obligation arising from culpa
aquiliana. The fault and negligence referred to in articles 11011104 of the Civil Code are those incidental to the fulfillment or
nonfulfillment of a contractual obligation; while the fault or
negligence referred to in article 1902 is the culpa aquiliana of the
civil law, homologous but not identical to tort of the common law,
which gives rise to an obligation independently of any contract.
(Cf. Manila R. R. Co. v. Cia. Trasatlantica, 38 Phil., 875, 887-890;
Cangco v. Manila R. R. Co., 38 Phil., 768.) The fact that the
corporation, acting thru Vazquez as its manager, was guilty of
negligence in the fulfillment of the contract, did not make Vazquez
principally or even subsidiarily liable for such negligence. Since it
was the corporations contract, its nonfulfillment, whether due to
negligence or fault or to any other cause, made the corporation
and not its agent liable.
3. ID.; ID.; ID. On the other hand, independently of the contract
Vazquez by his fault or negligence caused damage to the plaintiff,
he would be liable to the latter under article 1902 of the Civil
Code. But then the plaintiffs cause of action should be based on
culpa aquiliana and not on the contract alleged in his complaint
herein; and Vazquez liability would be principal and not merely
subsidiary, as the Court of Appeals has erroneously held.

4. ID.; ID.; ID.; NO CAUSE OF ACTION BASED ON "CULPA

AQUILIANA" ALLEGED IN COMPLAINT OR LITIGATED IN TRIAL
COURT; NO JURISDICTION OVER THE ISSUE. No such cause of
action was alleged in the complaint or tried by express or implied
consent of the parties by virtue of section 4 of Rule 17. Hence the
trial court had no jurisdiction over the issue and could not
adjudicate upon it. (Reyes v. Diaz, G. R. No. 48754.) Consequently
it was error for the Court of Appeals to remand the case to the
trial court to try and decide such issue.
DECISION
OZAETA, J.:
This action was commenced in the Court of First Instance of
Manila by Francisco de Borja against Antonio Vazquez and
Fernando Busuego to recover from them jointly and severally the
total sum of P4,702.70 upon three alleged causes of action, to wit:
First, that in or about the month of January, 1932, the defendants
jointly and severally obligated themselves to sell to the plaintiff
4,000 cavans of palay at P2.10 per cavan, to be delivered during
the month of February, 1932, the said defendants having
subsequently received from the plaintiff in virtue of said
agreement the sum of P8,400; that the defendants delivered to
the plaintiff during the months of February, March, and April,
1932, only 2,488 cavans of palay of the value of P5,224.80 and
refused to deliver the balance of 1,512 cavans of the value of
P3,175.20 notwithstanding repeated demands. Second, that
because of defendants refusal to deliver to the plaintiff the said
1,512 cavans of palay within the period above mentioned, the
plaintiff suffered damages in the sum of P1,000. And, third, that
on account of the agreement above mentioned the plaintiff
delivered to the defendants 4,000 empty sacks, of which they
returned to the plaintiff only 2,490 and refused to deliver to the
plaintiff the balance of 1,510 sacks or to pay their value
amounting to P377.50; and that on account of such refusal the
plaintiff suffered damages in the sum of P150.
The defendant Antonio Vazquez answered the complaint, denying
having entered into the contract mentioned in the first cause of
action in his own individual and personal capacity, either solely or
together with his codefendant Fernando Busuego, and alleging
that the agreement for the purchase of 4,000 cavans of palay and
the payment of the price of P8,400 were made by the plaintiff with
and to the Natividad-Vazquez Sabani Development Co., Inc., a
corporation organized and existing under the laws of the
Philippines, of which the defendant Antonio Vazquez was the
acting manager at the time the transaction took place. By way of
counterclaim, the said defendant alleged that he suffered
damages in the sum of P1,000 on account of the filing of this
action against him by the plaintiff with full knowledge that the
said defendant had nothing to do whatever with any and all of the
transactions mentioned in the complaint in his own individual and
personal capacity.
The trial court rendered judgment ordering the defendant Antonio
Vazquez to pay to the plaintiff the sum of P3,175.20 plus the sum
of P377.50, with legal interest on both sums, and absolving the
defendant Fernando Busuego (treasurer of the corporation) from
the complaint and the plaintiff from the defendant Antonio
Vazquez counterclaim. Upon appeal to the Court of Appeals, the
latter modified that judgment by reducing it to the total sum of
P3,314.78, with legal interest thereon and the costs. But by a
subsequent resolution upon the defendants motion for
reconsideration, the Court of Appeals set aside its judgment and
ordered that the case be remanded to the court of origin for
further proceedings. The defendant Vazquez, not being agreeable
to that result, filed the present petition for certiorari (G.R. No.
48930) to review and reverse the judgment of the Court of
Appeals; and the plaintiff Francisco de Borja, excepting to the
resolution of the Court of Appeals whereby its original judgment
was set aside and the case was ordered remanded to the court of
origin for further proceedings, filed a cross-petition
for certiorari (G.R. No. 48931) to maintain the original judgment of
the Court of Appeals.
The original decision of the Court of Appeals and its subsequent
resolutions on reconsideration read as follows:
"Es hecho no controvertido que el 25 de Febrero de 1932, el
demandado-apelante vendio al demandante 4,000 cavanes de
palay al precio de P2.10 el cavan, de los cuales, dicho
demandante solamente recibio 2,583 cavanes; y que asimismo
recibio para su envase 4,000 sacos vacios. Esta probado que de
dichos 4,000 sacos vacios solamente se entregaron, 2,583
quedando en poder del demandado el resto, y cuyo valor es el de
P0.24 cada uno. Presentada la demanda contra los demandados
Antonio Vazquez y Fernando Busuego para el pago de la cantidad
de P4,702.70, con sus intereses legales desde el 1.0 de marzo de
1932 hasta su completeo pago y las costas, el Juzgado de Primera
Instancia de Manila fallo el asunto condenando a Antonio Vazquez
a pagar al demandante la cantidad de P3,175.20, mas la cantidad
de P377.50, con sus intereses legales, absolviendo al demandado
Fernando Busuego de la demanda y al demandante de la
reconvencion de los demandados, sin especial pronunciamiento

en cuanto a las costas. De dicha decision apelo el demandado

Antonio Vazquez, apuntando como principal error el de que el
habia sido condenado personalmente, y no la corporacion por el
representada.
"Segun la preponderancia de las pruebas, la venta hecha por
Antonio Vazquez a favor de Francisco de Borja de los 4,000
cavanes de palay fue en su capacidad de Presidente interino y
Manager de la corporacion Natividad-Vazquez Sabani
Development Co., Inc. Asi resulta del Exh. 1, que es la copia al
carbon del recibo otorgado por el demandado Vazquez, y cuyo
original lo habia perdido el demandante, segun el. Asi tambien
consta en los libros de la corporacion arriba mencionada, puesto
que en los mismos se ha asentado tanto la entrada de los P8,400,
precio del palay, como su envio al gobierno en pago de los
alquileres de la Hacienda Sabani. Asi mismo lo admitio Francisco
de Borja al abogado Sr. Jacinto Tomacruz, posterior presidente de
la corporacion sucesora en el arrendamiento de la Sabani Estate,
cuando el solicito sus buenos oficios para el cobro del precio del
palay no entregado. Asi igualmente lo declaro el que hizo entrega
de parte del palay a Borja, Felipe Veneracion, cuyo testimonio no
ha sido refutado. Y asi se deduce de la misma demanda, cuando
se incluyo en ella a Fernando Busuego, tesorero de la NatividadVazquez Sabani Development Co., Inc.
"Siendo esto asi, la principal responsable debe ser la NatividadVazquez Sabani Development Co., Inc., que quedo insolvente y
dejo de existir. El Juez sentenciador declaro, sin embargo, al
demandado Vazquez responsable del pago de la cantidad
reclamada por su negligencia al vender los referidos 4,000
cavanes de palay sin averiguar antes si o no dicha cantidad
existia en las bodegas de la corporacion.
"Resulta del Exh. 8 que despues de la venta de los 4,000 cavanes
de palay a Francisco de Borja, el mismo demandado vendio a
Kwong Ah Phoy 1,500 cavanes al precio de P2.00 el cavan, y
decimos despues porque esta ultima venta aparece asentada
despues de la primera. Segun esto, el apelante no solamente obro
con negligencia, sino interviniendo culpa de su parte, por lo que
de acuerdo con los arts. 1102, 1103 y 1902 del Codigo Civil, el
debe ser responsable subsidiariamente del pago de la cantidad
objeto de la demanda.
"En meritos de todo lo expuesto, se confirma la decision apelada
con la modificacion de que el apelante debe pagar al apelado la
suma de P2,975.70 como valor de los 1,417 cavanes de palay que
dejo de entregar al demandante, mas la suma de P339.08 como
importe de los 1,417 sacos vacios, que dejo de devolver, a razon
de P0.24 el saco, total P3,314.78, con sus intereses legales desde
la interposicion de la demanda y las costas de ambas instancias."
"Vista la mocion de reconsideracion de nuestra decision de fecha
13 de Octubre de 1942, y alegandose en la misma que cuando el
apelante vendio los 1,500 cavanes de palay a Ah Phoy, la
corporacion todavia tenia bastante existencia de dicho grano, y
no estando dicho extremo suficientemente discutido y probado, y
pudiendo variar el resultado del asunto, dejamos sin efecto
nuestra citada decision, y ordenamos la devolucion de la causa al
Juzgado de origen para que reciba pruebas al efecto y dicte
despues la decision correspondiente."
"Upon consideration of the motion of the attorney for the plaintiffappellee in case CA-G.R. No. 8676, Francisco de Borja v. Antonio
Vazquez Et. Al., praying, for the reasons therein given, that the
resolution of December 22, 1942, be reconsidered: Considering
that said resolution remanding the case to the lower court is for
the benefit of the plaintiff-appellee to afford him opportunity to
refute the contention of the defendant-appellant Antonio Vazquez,
motion denied."

of the Court of Appeals which the plaintiff cross-petitioner seeks to

maintain.
The action being on a contract, and it appearing from the
preponderance of the evidence that the party liable on the
contract is the Natividad-Vazquez Sabani Development Co., Inc.,
which is not a party herein, the complaint should have been
dismissed. Counsel for the plaintiff, in his brief as respondent,
argues that altho by the preponderance of the evidence the trial
court and the Court of Appeals found that Vazquez celebrated the
contract in his capacity as acting president of the corporation and
altho it was the latter, thru Vazquez, with which the plaintiff had
contracted and which, thru Vazquez, had received the sum of
P8,400 from Borja, and altho that was true from the point of view
of a legal fiction, "ello no impide que tambien sea verdad lo
alegado en la demanda de que la persona de Vazquez fue la que
contrato con Borja y que la misma persona de Vazquez fue quien
recibio la suma de P8,400." But such argument is invalid and
insufficient to show that the president of the corporation is
personally liable on the contract duly and lawfully entered into by
him in its behalf.
It is well known that a corporation is an artificial being invested by
law with a personality of its own, separate and distinct from that
of its stockholders and from that of its officers who manage and
run its affairs. The mere fact that its personality is owing to a legal
fiction and that it necessarily has to act thru its agents, does not
make the latter personally liable on a contract duly entered into,
or for an act lawfully performed, by them for and in its behalf. The
legal fiction by which the personality of a corporation is created is
a practical reality and necessity. Without it no corporate entities
may exist and no corporate business may be transacted. Such
legal fiction may be disregarded only when an attempt is made to
use it as a cloak to hide an unlawful or fraudulent purpose. No
such thing has been alleged or proven in this case. It has not been
alleged nor even intimated that Vazquez personally benefited by
the contract of sale in question and that he is merely invoking the
legal fiction to avoid personal liability. Neither is it contended that
he entered into said contract for the corporation in bad faith and
with intent to defraud the plaintiff. We find no legal and factual
basis upon which to hold him liable on the contract either
principally or subsidiarily.
The trial court found him guilty of negligence in the performance
of the contract and held him personally liable on that account. On
the other hand, the Court of Appeals found that he "no solamente
obro con negligencia, sino interviniendo culpa de su parte, por lo
que de acuerdo con los arts. 1102, 1103 y 1902 del Codigo Civil,
el debe ser responsable subsidiariamente del pago de la cantidad
objeto de la demanda." We think both the trial court and the Court
of Appeals erred in law in so holding. They have manifestly failed
to distinguish a contractual from an extracontractual obligation, or
an obligation arising from contract from an obligation arising from
culpa aquiliana. The fault and negligence referred to in articles
1101-1104 of the Civil Code are those incidental to the fulfillment
or nonfulfillment of a contractual obligation; while the fault or
negligence referred to in article 1902 is the culpa aquiliana of the
civil law, homologous but not identical to tort of the common law,
which gives rise to an obligation independently of any contract.
(Cf. Manila R. R. Co. v. Cia. Trasatlantica, 38 Phil., 875, 887-890;
Cangco v. Manila R. R. Co., 38 Phil., 768.) The fact that the
corporation, acting thru Vazquez as its manager, was guilty of
negligence in the fulfillment of the contract, did not make Vazquez
principally or even subsidiarily liable for such negligence. Since it
was the corporations contract, its nonfulfillment, whether due to
negligence or fault or to any other cause, made the corporation
and not its agent liable.

The action is on a contract, and the only issue pleaded and tried is
whether the plaintiff entered into the contract with the defendant
Antonio Vazquez in his personal capacity or as manager of the
Natividad-Vazquez Sabani Development Co., Inc. The Court of
Appeals found that according to the preponderance of the
evidence "the sale made by Antonio Vazquez in favor of Francisco
de Borja of 4,000 cavans of palay was in his capacity as acting
president and manager of the corporation Natividad-Vazquez
Sabani Development Co., Inc." That finding of fact is final and, it
resolving the only issue involved, should be determinative of the
result.

On the other hand, if independently of the contract Vazquez by his

fault or negligence caused damage to the plaintiff, he would be
liable to the latter under article 1902 of the Civil Code. But then
the plaintiffs cause of action should be based on culpa aquiliana
and not on the contract alleged in his complaint herein; and
Vazquez liability would be principal and not merely subsidiary, as
the Court of Appeals has erroneously held. No such cause of
action was alleged in the complaint or tried by express or implied
consent of the parties by virtue of section 4 of Rule 17. Hence the
trial court had no jurisdiction over the issue and could not
adjudicate upon it. (Reyes v. Diaz, G. R. No. 48754.) Consequently
it was error for the Court of Appeals to remand the case to the
trial court to try and decide such issue.

The Court of Appeals doubly erred in ordering that the cause be

remanded to the court of origin for further trial to determine
whether the corporation had sufficient stock of palay at the time
appellant sold 1,500 cavans of palay to Kwong Ah Phoy. First, if
that point was material to the issue, it should have been proven
during the trial; and the statement of the court that it had not
been sufficiently discussed and proven was no justification for
ordering a new trial, which, by the way, neither party had solicited
but against which, on the contrary, both parties now vehemently
protest. Second, the point is, in any event, beside the issue, and
this we shall now discuss in connection with the original judgment

It only remains for us to consider petitioners second assignment

of error referring to the lower courts refusal to entertain his
counterclaim for damages against the respondent Borja arising
from the bringing of this action. The lower courts having sustained
plaintiffs action, they naturally could not have entertained
defendants counterclaim for damages on account of the bringing
of the action. The finding of the Court of Appeals that according to
the preponderance of the evidence the defendant Vazquez
celebrated the contract not in his personal capacity but as acting
president and manager of the corporation, does not warrant his
contention that the suit against him is malicious and tortious; and

since we have to decide defendants counterclaim upon the facts

found by the Court of Appeals, we find no sufficient basis upon
which to sustain said counterclaim. Indeed, we feel that as a
matter of moral justice we ought to state here that the indignant
attitude adopted by the defendant towards the plaintiff for having
brought this action against him is in our estimation not wholly
right. Altho from the legal point of view he was not personally
liable for the fulfillment of the contract entered into by him on
behalf of the corporation of which he was the acting president and
manager, we think it was his moral duty towards the party with
whom he contracted in said capacity to see to it that the
corporation represented by him fulfilled the contract by delivering
the palay it had sold, the price of which it had already received.
Recreant to such duty as a moral person, he has no legitimate
cause for indignation. We feel that under the circumstances he
not only has no cause of action against the plaintiff for damages
but is not even entitled to costs.
The judgment of the Court of Appeals is reversed, and the
complaint is hereby dismissed, without any finding as to costs.
Yulo, C.J., Moran, Horrilleno, and Bocobo, JJ., concur.
Separate Opinions
PARAS, J., dissenting:chanrob1es virtual 1aw library
Upon the facts of this case as expressly or impliedly admitted in
the majority opinion, the plaintiff is entitled to a judgment against
the defendant. The latter, as acting president and manager of
Natividad-Vazquez Sabani Development Co., Inc., and with full
knowledge of the then insolvent status of his company, agreed to
sell to the plaintiff 4,000 cavans of palay. Notwithstanding the
receipt from the plaintiff of the full purchase price, the defendant
delivered only 2,488 cavans and failed and refused to deliver the
remaining 1,512 cavans and a quantity of empty sacks, or their
value. Such failure resulted, according to the Court of First
Instance of Manila and the Court of Appeals, from his fault or
negligence.
It is true that the cause of action made out by the complaint is
technically based on a contract between the plaintiff and
Natividad- Vazquez Sabani Development Co., Inc., which is not a
party to this case. Nevertheless, inasmuch as it was proven at the
trial that the defendant was guilty of fault in that he prevented the
performance of the plaintiffs contract and also of negligence
bordering on fraud which caused damage to the plaintiff, the error
of procedure should not be a hindrance to the rendition of a
decision in accordance with the evidence actually introduced by
the parties, especially when in such a situation we may order the
necessary amendment of the pleadings, or even consider them
correspondingly amended.
As already stated, the corporation of which the defendant was
acting president and manager was, at the time he made the sale
to the plaintiff, known to him to be insolvent. As a matter of fact,
said corporation was soon thereafter dissolved. There is admitted
damage on the part of the plaintiff, proven to have been inflicted
by reason of the fault or negligence of the defendant. In the
interest of simple justice and to avoid multiplicity of suits I am
therefore impelled to consider the present action as one based on
fault or negligence and to sentence the defendant accordingly.
Otherwise, he would be allowed to profit by his own wrong under
the protective cover of the corporate existence of the company he
represented. It cannot be pretended that any advantage under
the sale inured to the benefit of Natividad-Vazquez Sabani
Development Co., Inc., and not of the defendant personally, since
the latter undoubtedly owned a considerable part of its capital.
Boyd v. Marion Coca-Cola Bottling Co.
240 S.C. 383 (1962)
126 S.E.2d 178
W. J. BOYD, Respondent, v. MARION COCA-COLA BOTTLING
COMPANY, Appellant.
17931
Supreme Court of South Carolina.
June 13, 1962.
Messrs. Burroughs & Green, of Conway, for Appellant.

*384James P. Stevens, Esq., of Loris, for Respondent.

June 13, 1962.
TAYLOR, Chief Justice.
Respondent in this action seeks to recover damages for personal
injuries suffered when a bottle of Coca-Cola is alleged to have
exploded cutting Respondent in the face.
The Complaint charges Appellant with (1) Selling bottles likely to
explode from excess pressure of gas; (2) Selling bottles likely to
explode by reason of some defect in the bottle; (3) Failing to
exercise the necessary precautions in filling bottles of Coca-Cola
at its plant; (4) Failing to provide a bottle of sufficient strength; (5)
Failure to use due care in the manufacture of the bottle; and (6)
Failure to use due care in the filling of the bottle of liquid CocaCola. The answer was a general denial. Upon trial, counsel for
Respondent agreed to strike No. (5) which charges failure to use
due care in the manufacture of the bottle, and the Court
eliminated No. (2) which charges selling bottles likely to explode
from some defect in the bottle.
Respondent testified that he operates a store in a rural area of
Horry and among other things handles Coca-Cola which he
purchased from Marion Coca-Cola Bottling Company; that on the
19th day of October, 1957, several cases of Coca-Cola were
delivered to his place of business by Appellant at approximately 2
P.M.; that at approximately 7:30 P.M. of the same day, he was in
the act of filling his drink box from the crates, preparing for the
next day's business, when after having placed 7 or 8 Coca-Colas
in the box, *385 one exploded and then shortly the second one
from the same crate exploded, resulting in his being cut in the
face to the extent that 10 stitches were required to close the
wound. Approximately two weeks later another bottle of CocaCola exploded in a similar fashion while undisturbed in the create.
Appellant introduced considerable testimony tending to show the
improbability of bottles exploding or breaking in such fashion as
those exhibited under the circumstances related by Respondent.
The doctrine of res ipsa loquitur does not prevail in South
Carolina, Eickhoff v. Beard-Laney, Inc., 199 S.C. 500, 20 S.E. (2d)
153, 141 A.L.R. 1010, and the many cases cited therein. In order
for Respondent to prevail, therefore, there must be some showing
of negligence on the part of Appellant, and such negligence may
be established by circumstantial as well as direct evidence. Gantt
v. Columbia Coca-Cola Bottling Co., 193 S.C. 51, 7 S.E. (2d) 641,
127 A.L.R. 1185. If from all the surrounding conditions and
circumstances prevailing at the time there is a reasonable
inference to be drawn that one charged with negligence did not
observe ordinary care, such question is one for the jury to pass
upon. Shields v. Chevrolet Truck (License No. VA. T.E. 7719) et al.,
195 S.C. 437, 12 S. E. (2d) 19.
In Merchant v. Columbia Coca-Cola Bottling Co., 214 S.C. 206, 51
S.E. (2d) 749, this Court stated, "* * * proof of injury caused by the
explosion of a single bottle containing a carbonated beverage,
standing alone, would not be sufficient to make out a case of
actionable negligence, * * *" and quoted from the North Carolina
case of Davis v. Coca-Cola Bottling Company of Asheville, 228 N.C.
32, 44 S.E. (2d) 337, as follows:
"`But in cases where compensation is sought for injury caused by
such explosion, the rule established by this court is that when it is
made to appear that other bottles filled by the same bottler,
under similar circumstances, about the *386 same time, have
exploded, there is afforded some evidence of negligence sufficient
to be submitted to the jury, as it would thus form the basis for the
permissible inference that the bottler had not exercised that
degree of care required of him under the circumstances.'"
This principle is applicable to the facts of instant case. Two bottles
from the same crate exploded while being removed from the crate
for the purpose of being placed in the cooler and approximately
two weeks later another bottle exploded while still in the crate
and undisturbed. Appellant's testimony is all to the effect that
such explosions could not have occurred under the circumstances

testified to. All of which was submitted to the jury for its
consideration.
We are of the opinion that under the circumstances heretofore
related, there was sufficient evidence to require submission of the
case to the jury on the question of whether Appellant had
negligently sold bottles likely to explode on account of excess
pressure of gas, had failed to provide a bottle of sufficient

strength, or failed to use due care in the filling of the bottle; that
all exceptions should be dismissed and the verdict and judgment
appealed from affirmed; and it is so ordered. Affirmed.
MOSS, LEWIS, BUSSEY and BRAILSFORD, JJ., concur.