PHILIPPINE RABBIT BUS LINES, INC.

and FELIX PANGALANGAN, plaintiffs-appellants,

vs.

PHIL-AMERICAN FORWARDERS, INC., ARCHIMEDES J. BALINGIT and FERNANDO PINEDA, defendants-

appellees.

Angel A. Sison for plaintiffs-appellants.

Fidel Zosimo U. Canilao for defendants-appellees.

AQUINO, J.:ñé+.£ªwph!1

Philippine Rabbit Bus Lines, Inc. and Felix Pangalangan appealed on pure questions of law from the
order of the Court of First Instance of Tarlac, dismissing their complaint against Archimedes J. Balingit.

The dismissal was based on the ground that Balingit as the manager of Phil-American Forwarders, Inc.,
which together with Fernando Pineda and Balingit, was sued for damages in an action based on quasi-
delict or culpa aquiliana, is not the manager of an establishment contemplated in article 2180 of the Civil
Code (Civil Case No. 3865).

In the complaint for damages filed by the bus company and Pangalangan against Phil-American
Forwarders, Inc., Balingit and Pineda, it was alleged that on November 24, 1962, Pineda drove recklessly
a freight truck, owned by Phil-American Forwarders, Inc., along the national highway at Sto. Tomas,
Pampanga. The truck bumped the bus driven by Pangalangan, which was owned by Philippine Rabbit
Bus Lines, Inc. As a result of the bumping, Pangalangan suffered injuries and the bus was damaged and
could not be used for seventy-nine days, thus depriving the company of earnings amounting to
P8,665.51. Balingit was the manager of Phil-American Forwarders, Inc.

Among the defenses interposed by the defendants in their answer was that Balingit was not Pineda's
employer.
Balingit moved that the complaint against him be dismissed on the ground that the bus company and
the bus driver had no cause of action against him. As already stated, the lower court dismissed the
action as to Balingit. The bus company and its driver appealed.

The Civil Code provides:têñ.£îhqwâ£

ART. 2176. Whoever by act or omission causes damage to another, there being fault or negligence,
is obliged to pay for the damage done. Such fault or negligence, if there is no pre-existing contractual
relation between the parties, is called a quasi-delict and is governed by the provisions of this Chapter.

ART. 2180. The obligation imposed by article 2176 is demandable not only for one's own acts or
omissions, but also for those of persons for whom one is responsible.

xxx xxx xxx

The owners and managers of an establishment or enterprise are likewise responsible for damages
caused by their employees in the service of the branches in which the latter are employed or on the
occasion of their functions.

Employers shall be liable for the damages caused by their employees and household helpers acting
within the scope of their assigned tasks, even though the former are not engaged in any business or
industry.

xxx xxx xxx

The responsibility treated of in this article shall cease when the persons herein mentioned prove that
they observed all the diligence of a good father of a family to prevent damage. (1903a)
The novel and unprecedented legal issue in this appeal is whether the terms "employers" and "owners
and managers of an establishment or enterprise" (dueños o directores de un establicimiento o empresa)
used in article 2180 of the Civil Code, formerly article 1903 of the old Code, embrace the manager of a
corporation owning a truck, the reckless operation of which allegedly resulted in the vehicular accident
from which the damage arose.

We are of the opinion that those terms do not include the manager of a corporation. It may be gathered
from the context of article 2180 that the term "manager" ("director" in the Spanish version) is used in
the sense of "employer".

Hence, under the allegations of the complaint, no tortious or quasi-delictual liability can be fastened on
Balingit as manager of Phil-American Forwarders, Inc., in connection with the vehicular accident already
mentioned because he himself may be regarded as an employee or dependiente of his employer, Phil-
American Forwarders, Inc.

Thus, it was held "que es dependiente, a los efectos de la responsabilidad subsidiaria establecida en el
num 3.0 del (art.) 1903, el director de un periodico explotado por una sociedad, porque cualquiera que
sea su jerarquia y aunque Ileve la direccion de determinadas convicciones politicas no por eso deja de
estar subordinado a la superior autoridad de la Empresa" (Decision of Spanish Supreme Court dated
December 6, 1912 cited in 12 Manresa, Codigo Civil Español 5th Ed. 662; 1913 Enciclopedia Juridica
Española 992).

The bus company and its driver, in their appellants' brief, injected a new factual issue which was not
alleged in their complaint. They argue that Phil- American Forwarders, Inc. is merely a business conduit
of Balingit because out of its capital stock with a par value of P41,200, Balingit and his wife had
subscribed P40,000 and they paid P10,000 on their subscription, while the other incorporators, namely,
Rodolfo Limjuco, Ponciano Caparas and Rafael Suntay paid P250.25 and P25, respectively.

That argument implies that the veil of corporate fiction should be pierced and that Phil-American
Forwarders, Inc. and Balingit and his wife should be treated as one and the same civil personality.

We cannot countenance that argument in this appeal. It was not raised in the lower court. The case has
to be decided on the basis of the pleadings filed in the trial court where it was assumed that Phil-
American Forwarders, Inc. has a personality separate and distinct from that of the Balingit spouses.
The legal issue, which the plaintiffs-appellants can ventilate in this appeal, is one which was raised in the
lower court and which is within the issues framed by the parties (Sec. 18, Rule 46, Rules of Court).

When a party deliberately adopts a certain theory and the case is decided upon that theory in the court
below, he will not be permitted to change his theory on appeal because, to permit him to do so, could
be unfair to the adverse party (2 Moran's Comments on the Rules of Court, 1970 Ed. p. 505).

WHEREFORE, the lower court's order of dismissal is affirmed. Costs against the plaintiffs-appellants.

SO ORDERED.

UNIVERSITY OF THE EAST, petitioner,

vs.

ROMEO A. JADER, respondent.

YNARES-SANTIAGO, J.:

May an educational institution be held liable for damages for misleading a student into believing that
the latter had satisfied all the requirements for graduation when such is not the case? This is the issue in
the instant petition for review premised on the following undisputed facts as summarized by the trial
court and adopted by the Court of Appeals (CA),1 to wit:

Plaintiff was enrolled in the defendants' College of Law from 1984 up to 1988. In the first semester of his
last year (School year 1987-1988), he failed to take the regular final examination in Practice Court I for
which he was given an incomplete grade (Exhibits "2", also Exhibit "H"). He enrolled for the second
semester as fourth year law student (Exhibit "A") and on February 1, 1988 he filed an application for the
removal of the incomplete grade given him by Professor Carlos Ortega (Exhibits "H-2", also Exhibit "2")
which was approved by Dean Celedonio Tiongson after payment of the required fee. He took the
examination on March 28, 1988. On May 30, 1988, Professor Carlos Ortega submitted his grade. It was a
grade of five (5). (Exhibits "H-4", also Exhibits "2-L", "2-N").1âwphi1.nêt
In the meantime, the Dean and the Faculty Members of the College of Law met to deliberate on who
among the fourth year students should be allowed to graduate. The plaintiff's name appeared in the
Tentative List of Candidates for graduation for the Degree of Bachelor of Laws (LL.B) as of Second
Semester (1987-1988) with the following annotation:

JADER ROMEO A.

Def. Conflict of Laws — x-1-87-88, Practice Court I Inc., 1-87-88 C-1 to submit transcript with S.O.
(Exhibits "3", "3-C-1", "3-C-2").

The 35th Investitures & Commencement Ceremonies for the candidates of Bachelor of Laws was
scheduled on the 16th of April 1988 at 3:00 o'clock in the afternoon, and in the invitation for that
occasion the name of the plaintiff appeared as one of the candidates. (Exhibits "B", "B-6", "B-6-A"). At
the foot of the list of the names of the candidates there appeared however the following annotation:

This is a tentative list Degrees will be conferred upon these candidates who satisfactorily complete
requirements as stated in the University Bulletin and as approved of the Department of Education,
Culture and Sports (Exhibit "B-7-A").

The plaintiff attended the investiture ceremonies at F. dela Cruz Quadrangle, U.E., Recto Campus, during
the program of which he went up the stage when his name was called, escorted by her (sic) mother and
his eldest brother who assisted in placing the Hood, and his Tassel was turned from left to right, and he
was thereafter handed by Dean Celedonio a rolled white sheet of paper symbolical of the Law Diploma.
His relatives took pictures of the occasion (Exhibits "C" to "C-6", "D-3" to "D-11").

He tendered a blow-out that evening which was attended by neighbors, friends and relatives who
wished him good luck in the forthcoming bar examination. There were pictures taken too during the
blow-out (Exhibits "D" to "D-1").

He thereafter prepared himself for the bar examination. He took a leave of absence without pay from
his job from April 20, 1988 to September 30, 1988 (Exhibit "G") and enrolled at the pre-bar review class
in Far Eastern University. (Exhibits "F" to "F-2"). Having learned of the deficiency he dropped his review
class and was not able to take the bar examination.2

Consequently, respondent sued petitioner for damages alleging that he suffered moral shock, mental
anguish, serious anxiety, besmirched reputation, wounded feelings and sleepless nights when he was
not able to take the 1988 bar examinations arising from the latter's negligence. He prayed for an award
of moral and exemplary damages, unrealized income, attorney's fees, and costs of suit.

In its answer with counterclaim, petitioner denied liability arguing mainly that it never led respondent to
believe that he completed the requirements for a Bachelor of Laws degree when his name was included
in the tentative list of graduating students. After trial, the lower court rendered judgment as follows:

WHEREFORE, in view of the foregoing judgment is hereby rendered in favor of the plaintiff and against
the defendant ordering the latter to pay plaintiff the sum of THIRTY FIVE THOUSAND FOUR HUNDRED
SEVENTY PESOS (P35,470.00) with legal rate of interest from the filing of the complaint until fully paid,
the amount of FIVE THOUSAND PESOS (P5,000.00) as attorney's fees and the cost of suit.

Defendant's counterclaim is, for lack of merit, hereby dismissed.

SO ORDERED.3

which on appeal by both parties was affirmed by the Court of Appeals (CA) with modification. The
dispositive portion of the CA decision reads:

WHEREFORE, in the light of the foregoing, the lower Court's Decision is hereby AFFIRMED with the
MODIFICATION that defendant-appellee, in addition to the sum adjudged by the lower court in favor of
plaintiff-appellant, is also ORDERED to pay plaintiff-appellant the amount of FIFTY THOUSAND
(P50,000.00) PESOS for moral damages. Costs against defendant-appellee.

SO ORDERED.4
Upon the denial of its motion for reconsideration, petitioner UE elevated the case to this Court on a
petition for review under Rule 45 of the Rules of Court, arguing that it has no liability to respondent
Romeo A. Jader, considering that the proximate and immediate cause of the alleged damages incurred
by the latter arose out of his own negligence in not verifying from the professor concerned the result of
his removal exam.

The petition lacks merit.

When a student is enrolled in any educational or learning institution, a contract of education is entered
into between said institution and the student. The professors, teachers or instructors hired by the school
are considered merely as agents and administrators tasked to perform the school's commitment under
the contract. Since the contracting parties are the school and the student, the latter is not duty-bound
to deal with the former's agents, such as the professors with respect to the status or result of his grades,
although nothing prevents either professors or students from sharing with each other such information.
The Court takes judicial notice of the traditional practice in educational institutions wherein the
professor directly furnishes his/her students their grades. It is the contractual obligation of the school to
timely inform and furnish sufficient notice and information to each and every student as to whether he
or she had already complied with all the requirements for the conferment of a degree or whether they
would be included among those who will graduate. Although commencement exercises are but a formal
ceremony, it nonetheless is not an ordinary occasion, since such ceremony is the educational
institution's way of announcing to the whole world that the students included in the list of those who
will be conferred a degree during the baccalaureate ceremony have satisfied all the requirements for
such degree. Prior or subsequent to the ceremony, the school has the obligation to promptly inform the
student of any problem involving the latter's grades and performance and also most importantly, of the
procedures for remedying the same.

Petitioner, in belatedly informing respondent of the result of the removal examination, particularly at a
time when he had already commenced preparing for the bar exams, cannot be said to have acted in
good faith. Absence of good faith must be sufficiently established for a successful prosecution by the
aggrieved party in a suit for abuse of right under Article 19 of the Civil Code. Good faith connotes an
honest intention to abstain from taking undue advantage of another, even though the forms and
technicalities of the law, together with the absence of all information or belief of facts, would render the
transaction unconscientious.5 It is the school that has access to those information and it is only the
school that can compel its professors to act and comply with its rules, regulations and policies with
respect to the computation and the prompt submission of grades. Students do not exercise control,
much less influence, over the way an educational institution should run its affairs, particularly in
disciplining its professors and teachers and ensuring their compliance with the school's rules and orders.
Being the party that hired them, it is the school that exercises general supervision and exclusive control
over the professors with respect to the submission of reports involving the students' standing. Exclusive
control means that no other person or entity had any control over the instrumentality which caused the
damage or injury.6

The college dean is the senior officer responsible for the operation of an academic program,
enforcement of rules and regulations, and the supervision of faculty and student services.7 He must see
to it that his own professors and teachers, regardless of their status or position outside of the university,
must comply with the rules set by the latter. The negligent act of a professor who fails to observe the
rules of the school, for instance by not promptly submitting a student's grade, is not only imputable to
the professor but is an act of the school, being his employer.

Considering further, that the institution of learning involved herein is a university which is engaged in
legal education, it should have practiced what it inculcates in its students, more specifically the principle
of good dealings enshrined in Articles 19 and 20 of the Civil Code which states:

Art. 19. Every person must, in the exercise of his rights and in the performance of his duties, act with
justice, give everyone his due, and observe honesty and good faith.

Art. 20. Every person who, contrary to law, wilfully or negligently causes damage to another, shall
indemnify the latter for the same.

Art. 19 was intended to expand the concept of torts by granting adequate legal remedy for the untold
number of moral wrongs which is impossible for human foresight to provide specifically in statutory
law.8 In civilized society, men must be able to assume that others will do them no intended injury —
that others will commit no internal aggressions upon them; that their fellowmen, when they act
affirmatively will do so with due care which the ordinary understanding and moral sense of the
community exacts and that those with whom they deal in the general course of society will act in good
faith. The ultimate thing in the theory of liability is justifiable reliance under conditions of civilized
society.9 Schools and professors cannot just take students for granted and be indifferent to them, for
without the latter, the former are useless.

Educational institutions are duty-bound to inform the students of their academic status and not wait for
the latter to inquire from the former. The conscious indifference of a person to the rights or welfare of
the person/persons who may be affected by his act or omission can support a claim for damages.10
Want of care to the conscious disregard of civil obligations coupled with a conscious knowledge of the
cause naturally calculated to produce them would make the erring party liable.11 Petitioner ought to
have known that time was of the essence in the performance of its obligation to inform respondent of
his grade. It cannot feign ignorance that respondent will not prepare himself for the bar exams since
that is precisely the immediate concern after graduation of an LL.B. graduate. It failed to act seasonably.
Petitioner cannot just give out its student's grades at any time because a student has to comply with
certain deadlines set by the Supreme Court on the submission of requirements for taking the bar.
Petitioner's liability arose from its failure to promptly inform respondent of the result of an examination
and in misleading the latter into believing that he had satisfied all requirements for the course. Worth
quoting is the following disquisition of the respondent court:

It is apparent from the testimony of Dean Tiongson that defendant-appellee University had been
informed during the deliberation that the professor in Practice Court I gave plaintiff-appellant a failing
grade. Yet, defendant-appellee still did not inform plaintiff-appellant of his failure to complete the
requirements for the degree nor did they remove his name from the tentative list of candidates for
graduation. Worse, defendant-appellee university, despite the knowledge that plaintiff-appellant failed
in Practice Court I, again included plaintiff-appellant's name in the "tentative list of candidates for
graduation which was prepared after the deliberation and which became the basis for the
commencement rites program. Dean Tiongson reasons out that plaintiff-appellant's name was allowed
to remain in the tentative list of candidates for graduation in the hope that the latter would still be able
to remedy the situation in the remaining few days before graduation day. Dean Tiongson, however, did
not explain how plaintiff appellant Jader could have done something to complete his deficiency if
defendant-appellee university did not exert any effort to inform plaintiff-appellant of his failing grade in
Practice Court I.12

Petitioner cannot pass on its blame to the professors to justify its own negligence that led to the delayed
relay of information to respondent. When one of two innocent parties must suffer, he through whose
agency the loss occurred must bear it.13 The modern tendency is to grant indemnity for damages in
cases where there is abuse of right, even when the act is not illicit.14 If mere fault or negligence in one's
acts can make him liable for damages for injury caused thereby, with more reason should abuse or bad
faith make him liable. A person should be protected only when he acts in the legitimate exercise of his
right, that is, when he acts with prudence and in good faith, but not when he acts with negligence or
abuse.15

However, while petitioner was guilty of negligence and thus liable to respondent for the latter's actual
damages, we hold that respondent should not have been awarded moral damages. We do not agree
with the Court of Appeals' findings that respondent suffered shock, trauma and pain when he was
informed that he could not graduate and will not be allowed to take the bar examinations. At the very
least, it behooved on respondent to verify for himself whether he has completed all necessary
requirements to be eligible for the bar examinations. As a senior law student, respondent should have
been responsible enough to ensure that all his affairs, specifically those pertaining to his academic
achievement, are in order. Given these considerations, we fail to see how respondent could have
suffered untold embarrassment in attending the graduation rites, enrolling in the bar review classes and
not being able to take the bar exams. If respondent was indeed humiliated by his failure to take the bar,
he brought this upon himself by not verifying if he has satisfied all the requirements including his school
records, before preparing himself for the bar examination. Certainly, taking the bar examinations does
not only entail a mental preparation on the subjects thereof; there are also prerequisites of
documentation and submission of requirements which the prospective examinee must meet.

WHEREFORE, the assailed decision of the Court of Appeals is AFFIRMED with MODIFICATION. Petitioner
is ORDERED to PAY respondent the sum of Thirty-five Thousand Four Hundred Seventy Pesos
(P35,470.00), with legal interest of 6% per annum computed from the date of filing of the complaint
until fully paid; the amount of Five Thousand Pesos (P5,000.00) as attorney's fees; and the costs of the
suit. The award of moral damages is DELEIED.1âwphi1.nêt

SO ORDERED.

CASTILEX INDUSTRIAL CORPORATION, petitioner, vs. VICENTE VASQUEZ, JR. and LUISA SO VASQUEZ,
and CEBU DOCTORS HOSPITAL, INC., respondents.

DECISION

DAVIDE, JR., C.J.:

The pivotal issue in this petition is whether an employer may be held vicariously liable for the death
resulting from the negligent operation by a managerial employee of a company-issued vehicle.

The antecedents, as succinctly summarized by the Court of Appeals, are as follows:

On 28 August 1988, at around 1:30 to 2:00 in the morning, Romeo So Vasquez, was driving a Honda
motorcycle around Fuente Osmea Rotunda. He was traveling counter-clockwise, (the normal flow of
traffic in a rotunda) but without any protective helmet or goggles. He was also only carrying a Students
Permit to Drive at the time. Upon the other hand, Benjamin Abad [was a] manager of Appellant Castilex
Industrial Corporation, registered owner [of] a Toyota Hi-Lux Pick-up with plate no. GBW-794. On the
same date and time, Abad drove the said company car out of a parking lot but instead of going around
the Osmea rotunda he made a short cut against [the] flow of the traffic in proceeding to his route to
General Maxilom St. or to Belvic St.

In the process, the motorcycle of Vasquez and the pick-up of Abad collided with each other causing
severe injuries to the former. Abad stopped his vehicle and brought Vasquez to the Southern Islands
Hospital and later to the Cebu Doctors Hospital.

On September 5, 1988, Vasquez died at the Cebu Doctors Hospital. It was there that Abad signed an
acknowledgment of Responsible Party (Exhibit K) wherein he agreed to pay whatever hospital bills,
professional fees and other incidental charges Vasquez may incur.

After the police authorities had conducted the investigation of the accident, a Criminal Case was filed
against Abad but which was subsequently dismissed for failure to prosecute. So, the present action for
damages was commenced by Vicente Vasquez, Jr. and Luisa So Vasquez, parents of the deceased Romeo
So Vasquez, against Jose Benjamin Abad and Castilex Industrial Corporation. In the same action, Cebu
Doctors Hospital intervened to collect unpaid balance for the medical expense given to Romeo So
Vasquez.[1]

The trial court ruled in favor of private respondents Vicente and Luisa Vasquez and ordered Jose
Benjamin Abad (hereafter ABAD) and petitioner Castilex Industrial Corporation (hereafter CASTILEX) to
pay jointly and solidarily (1) Spouses Vasquez, the amounts of P8,000.00 for burial expenses; P50,000.00
as moral damages; P10,000.00 as attorneys fees; and P778,752.00 for loss of earning capacity; and (2)
Cebu Doctors Hospital, the sum of P50,927.83 for unpaid medical and hospital bills at 3% monthly
interest from 27 July 1989 until fully paid, plus the costs of litigation.[2]

CASTILEX and ABAD separately appealed the decision.

In its decision[3] of 21 May 1997, the Court of Appeals affirmed the ruling of the trial court holding
ABAD and CASTILEX liable but held that the liability of the latter is only vicarious and not solidary with
the former. It reduced the award of damages representing loss of earning capacity from P778,752.00 to
P214,156.80; and the interest on the hospital and medical bills, from 3% per month to 12% per annum
from 5 September 1988 until fully paid.
Upon CASTILEXs motion for reconsideration, the Court of Appeals modified its decision by (1) reducing
the award of moral damages from P50,000 to P30,000 in view of the deceaseds contributory negligence;
(b) deleting the award of attorneys fees for lack of evidence; and (c) reducing the interest on hospital
and medical bills to 6% per annum from 5 September 1988 until fully paid.[4]

Hence, CASTILEX filed the instant petition contending that the Court of Appeals erred in (1) applying to
the case the fifth paragraph of Article 2180 of the Civil Code, instead of the fourth paragraph thereof; (2)
that as a managerial employee, ABAD was deemed to have been always acting within the scope of his
assigned task even outside office hours because he was using a vehicle issued to him by petitioner; and
(3) ruling that petitioner had the burden to prove that the employee was not acting within the scope of
his assigned task.

Jose Benjamin ABAD merely adopted the statement of facts of petitioner which holds fast on the theory
of negligence on the part of the deceased.

On the other hand, respondents Spouses Vasquez argue that their sons death was caused by the
negligence of petitioners employee who was driving a vehicle issued by petitioner and who was on his
way home from overtime work for petitioner; and that petitioner is thus liable for the resulting injury
and subsequent death of their son on the basis of the fifth paragraph of Article 2180. Even if the fourth
paragraph of Article 2180 were applied, petitioner cannot escape liability therefor. They moreover argue
that the Court of Appeals erred in reducing the amount of compensatory damages when the award
made by the trial court was borne both by evidence adduced during the trial regarding deceaseds wages
and by jurisprudence on life expectancy. Moreover, they point out that the petition is procedurally not
acceptable on the following grounds: (1) lack of an explanation for serving the petition upon the Court
of Appeals by registered mail, as required under Section 11, Rule 13 of the Rules of Civil Procedure; and
(2) lack of a statement of the dates of the expiration of the original reglementary period and of the filing
of the motion for extension of time to file a petition for review.

For its part, respondent Cebu Doctors Hospital maintains that petitioner CASTILEX is indeed vicariously
liable for the injuries and subsequent death of Romeo Vasquez caused by ABAD, who was on his way
home from taking snacks after doing overtime work for petitioner. Although the incident occurred when
ABAD was not working anymore the inescapable fact remains that said employee would not have been
situated at such time and place had he not been required by petitioner to do overtime work. Moreover,
since petitioner adopted the evidence adduced by ABAD, it cannot, as the latters employer, inveigle
itself from the ambit of liability, and is thus estopped by the records of the case, which it failed to refute.
We shall first address the issue raised by the private respondents regarding some alleged procedural
lapses in the petition.

Private respondents contention of petitioners violation of Section 11 of Rule 13 and Section 4 of Rule 45
of the 1997 Rules of Civil Procedure holds no water.

Section 11 of Rule 13 provides:

SEC. 11. Priorities in modes of service and filing. -- Whenever practicable, the service and filing of
pleadings and other papers shall be done personally. Except with respect to papers emanating from the
court, a resort to other modes must be accompanied by a written explanation why the service or filing
was not done personally. A violation of this Rule may be cause to consider the paper as not filed.

The explanation why service of a copy of the petition upon the Court of Appeals was done by registered
mail is found on Page 28 of the petition. Thus, there has been compliance with the aforequoted
provision.

As regards the allegation of violation of the material data rule under Section 4 of Rule 45, the same is
unfounded. The material dates required to be stated in the petition are the following: (1) the date of
receipt of the judgment or final order or resolution subject of the petition; (2) the date of filing of a
motion for new trial or reconsideration, if any; and (3) the date of receipt of the notice of the denial of
the motion. Contrary to private respondents claim, the petition need not indicate the dates of the
expiration of the original reglementary period and the filing of a motion for extension of time to file the
petition. At any rate, aside from the material dates required under Section 4 of Rule 45, petitioner
CASTILEX also stated in the first page of the petition the date it filed the motion for extension of time to
file the petition.

Now on the merits of the case.

The negligence of ABAD is not an issue at this instance. Petitioner CASTILEX presumes said negligence
but claims that it is not vicariously liable for the injuries and subsequent death caused by ABAD.
Petitioner contends that the fifth paragraph of Article 2180 of the Civil Code should only apply to
instances where the employer is not engaged in business or industry. Since it is engaged in the business
of manufacturing and selling furniture it is therefore not covered by said provision. Instead, the fourth
paragraph should apply.

Petitioners interpretation of the fifth paragraph is not accurate. The phrase even though the former are
not engaged in any business or industry found in the fifth paragraph should be interpreted to mean that
it is not necessary for the employer to be engaged in any business or industry to be liable for the
negligence of his employee who is acting within the scope of his assigned task.[5]

A distinction must be made between the two provisions to determine what is applicable. Both
provisions apply to employers: the fourth paragraph, to owners and managers of an establishment or
enterprise; and the fifth paragraph, to employers in general, whether or not engaged in any business or
industry. The fourth paragraph covers negligent acts of employees committed either in the service of
the branches or on the occasion of their functions, while the fifth paragraph encompasses negligent acts
of employees acting within the scope of their assigned task. The latter is an expansion of the former in
both employer coverage and acts included. Negligent acts of employees, whether or not the employer is
engaged in a business or industry, are covered so long as they were acting within the scope of their
assigned task, even though committed neither in the service of the branches nor on the occasion of their
functions. For, admittedly, employees oftentimes wear different hats. They perform functions which are
beyond their office, title or designation but which, nevertheless, are still within the call of duty.

This court has applied the fifth paragraph to cases where the employer was engaged in a business or
industry such as truck operators[6] and banks.[7] The Court of Appeals cannot, therefore, be faulted in
applying the said paragraph of Article 2180 of the Civil Code to this case.

Under the fifth paragraph of Article 2180, whether or not engaged in any business or industry, an
employer is liable for the torts committed by employees within the scope of his assigned tasks. But it is
necessary to establish the employer-employee relationship; once this is done, the plaintiff must show,
to hold the employer liable, that the employee was acting within the scope of his assigned task when
the tort complained of was committed. It is only then that the employer may find it necessary to
interpose the defense of due diligence in the selection and supervision of the employee.[8]
It is undisputed that ABAD was a Production Manager of petitioner CASTILEX at the time of the tort
occurrence. As to whether he was acting within the scope of his assigned task is a question of fact,
which the court a quo and the Court of Appeals resolved in the affirmative.

Well-entrenched in our jurisprudence is the rule that the factual findings of the Court of Appeals are
entitled to great respect, and even finality at times. This rule is, however, subject to exceptions such as
when the conclusion is grounded on speculations, surmises, or conjectures.[9] Such exception obtain in
the present case to warrant review by this Court of the finding of the Court of Appeals that since ABAD
was driving petitioners vehicle he was acting within the scope of his duties as a manager.

Before we pass upon the issue of whether ABAD was performing acts within the range of his
employment, we shall first take up the other reason invoked by the Court of Appeals in holding
petitioner CASTILEX vicariously liable for ABADs negligence, i.e., that the petitioner did not present
evidence that ABAD was not acting within the scope of his assigned tasks at the time of the motor
vehicle mishap. Contrary to the ruling of the Court of Appeals, it was not incumbent upon the petitioner
to prove the same. It was enough for petitioner CASTILEX to deny that ABAD was acting within the scope
of his duties; petitioner was not under obligation to prove this negative averment. Ei incumbit probatio
qui dicit, non qui negat (He who asserts, not he who denies, must prove). The Court has consistently
applied the ancient rule that if the plaintiff, upon whom rests the burden of proving his cause of action,
fails to show in a satisfactory manner facts which he bases his claim, the defendant is under no
obligation to prove his exception or defense.[10]

Now on the issue of whether the private respondents have sufficiently established that ABAD was acting
within the scope of his assigned tasks.

ABAD, who was presented as a hostile witness, testified that at the time of the incident, he was driving a
company-issued vehicle, registered under the name of petitioner. He was then leaving the restaurant
where he had some snacks and had a chat with his friends after having done overtime work for the
petitioner.

No absolutely hard and fast rule can be stated which will furnish the complete answer to the problem of
whether at a given moment, an employee is engaged in his employers business in the operation of a
motor vehicle, so as to fix liability upon the employer because of the employees action or inaction; but
rather, the result varies with each state of facts.[11]
In Filamer Christian Institute v. Intermediate Appellate Court,[12] this Court had the occasion to hold
that acts done within the scope of the employees assigned tasks includes any act done by an employee
in furtherance of the interests of the employer or for the account of the employer at the time of the
infliction of the injury or damages.

The court a quo and the Court of Appeals were one in holding that the driving by a manager of a
company-issued vehicle is within the scope of his assigned tasks regardless of the time and
circumstances.

We do not agree. The mere fact that ABAD was using a service vehicle at the time of the injurious
incident is not of itself sufficient to charge petitioner with liability for the negligent operation of said
vehicle unless it appears that he was operating the vehicle within the course or scope of his
employment.

The following are principles in American Jurisprudence on the employers liability for the injuries inflicted
by the negligence of an employee in the use of an employers motor vehicle:

I. Operation of Employers Motor Vehicle in Going to or from Meals

It has been held that an employee who uses his employers vehicle in going from his work to a place
where he intends to eat or in returning to work from a meal is not ordinarily acting within the scope of
his employment in the absence of evidence of some special business benefit to the employer. Evidence
that by using the employers vehicle to go to and from meals, an employee is enabled to reduce his time-
off and so devote more time to the performance of his duties supports the finding that an employee is
acting within the scope of his employment while so driving the vehicle.[13]

II. Operation of Employers Vehicle in Going to or from Work

In the same vein, traveling to and from the place of work is ordinarily a personal problem or concern of
the employee, and not a part of his services to his employer. Hence, in the absence of some special
benefit to the employer other than the mere performance of the services available at the place where
he is needed, the employee is not acting within the scope of his employment even though he uses his
employers motor vehicle.[14]

The employer may, however, be liable where he derives some special benefit from having the employee
drive home in the employers vehicle as when the employer benefits from having the employee at work
earlier and, presumably, spending more time at his actual duties. Where the employees duties require
him to circulate in a general area with no fixed place or hours of work, or to go to and from his home to
various outside places of work, and his employer furnishes him with a vehicle to use in his work, the
courts have frequently applied what has been called the special errand or roving commission rule, under
which it can be found that the employee continues in the service of his employer until he actually
reaches home. However, even if the employee be deemed to be acting within the scope of his
employment in going to or from work in his employers vehicle, the employer is not liable for his
negligence where at the time of the accident, the employee has left the direct route to his work or back
home and is pursuing a personal errand of his own.

III. Use of Employers Vehicle Outside Regular Working Hours

An employer who loans his motor vehicle to an employee for the latters personal use outside of regular
working hours is generally not liable for the employees negligent operation of the vehicle during the
period of permissive use, even where the employer contemplates that a regularly assigned motor
vehicle will be used by the employee for personal as well as business purposes and there is some
incidental benefit to the employer. Even where the employees personal purpose in using the vehicle has
been accomplished and he has started the return trip to his house where the vehicle is normally kept, it
has been held that he has not resumed his employment, and the employer is not liable for the
employees negligent operation of the vehicle during the return trip.[15]

The foregoing principles and jurisprudence are applicable in our jurisdiction albeit based on the doctrine
of respondeat superior, not on the principle of bonus pater familias as in ours. Whether the fault or
negligence of the employee is conclusive on his employer as in American law or jurisprudence, or merely
gives rise to the presumption juris tantum of negligence on the part of the employer as in ours, it is
indispensable that the employee was acting in his employers business or within the scope of his
assigned task.[16]

In the case at bar, it is undisputed that ABAD did some overtime work at the petitioners office, which
was located in Cabangcalan, Mandaue City. Thereafter, he went to Goldies Restaurant in Fuente Osmea,
Cebu City, which is about seven kilometers away from petitioners place of business.[17] A witness for
the private respondents, a sidewalk vendor, testified that Fuente Osmea is a lively place even at dawn
because Goldies Restaurant and Back Street were still open and people were drinking thereat.
Moreover, prostitutes, pimps, and drug addicts littered the place.[18]

At the Goldies Restaurant, ABAD took some snacks and had a chat with friends. It was when ABAD was
leaving the restaurant that the incident in question occurred. That same witness for the private
respondents testified that at the time of the vehicular accident, ABAD was with a woman in his car, who
then shouted: Daddy, Daddy![19] This woman could not have been ABADs daughter, for ABAD was only
29 years old at the time.

To the mind of this Court, ABAD was engaged in affairs of his own or was carrying out a personal
purpose not in line with his duties at the time he figured in a vehicular accident. It was then about 2:00
a.m. of 28 August 1988, way beyond the normal working hours. ABADs working day had ended; his
overtime work had already been completed. His being at a place which, as petitioner put it, was known
as a haven for prostitutes, pimps, and drug pushers and addicts, had no connection to petitioners
business; neither had it any relation to his duties as a manager. Rather, using his service vehicle even for
personal purposes was a form of a fringe benefit or one of the perks attached to his position.

Since there is paucity of evidence that ABAD was acting within the scope of the functions entrusted to
him, petitioner CASTILEX had no duty to show that it exercised the diligence of a good father of a family
in providing ABAD with a service vehicle. Thus, justice and equity require that petitioner be relieved of
vicarious liability for the consequences of the negligence of ABAD in driving its vehicle.[20]

WHEREFORE, the petition is GRANTED, and the appealed decision and resolution of the Court of Appeals
is AFFIRMED with the modification that petitioner Castilex Industrial Corporation be absolved of any
liability for the damages caused by its employee, Jose Benjamin Abad.

SO ORDERED.

INOCENCIO ROSETE, petitioner,

vs.

THE AUDITOR GENERAL, respondent.

Quijano, Rosete and Tizon for petitioner.

First Assistant Solicitor General Jose B. L. Reyes and Solicitor Manuel Tomacruz for respondent.

FERIA, J.:

This is an appeal from the decision of the Insular Auditor denying the claim of Inocencio Rosete and
others against the Government in the amount of P35,376, for damages caused to buildings belonging to
the claimant, which according to the appellant's claim were destroyed by fire that came from the
contiguous warehouse of the Emergency Control Administration, ECA, located at No. 2262 Azcarraga,
due to the negligence of a certain Jose Frayno y Panlilio in igniting recklessly his cigarette-lighter near a
five gallon drum into which gasoline was being drained, and of the officers of the said ECA, which is an
office or agency of the Government, in storing gasoline in said warehouse contrary to the provisions of
Ordinances of the City of Manila.

It is not necessary for us to pass upon the facts alleged by the appellant, but only on the question
whether, assuming them to be true, the Insular Auditor erred in denying or dismissing the appellant's
claim.

The claimant contends that the Auditor General erred in not finding that the government agency or
instrumentality known as the Emergency Control Administration of the officers thereof, were guilty of
negligence in storing a highly combustible and inflammable substance in its warehouse on bodega in
Manila in violation of City Ordinances, and therefore the government is liable for the damages sustained
by the claimant under article 1903 of the Civil Code, which in its pertinent part reads as follows:

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

xxx xxx xxx

The state is liable in the scene when it acts through a special agent, but not when the damage should
have been caused by the official to whom it properly pertained to do the act performed, in which case
the provisions of the preceding article shall be applicable.

In the case of Merritt vs. Government of the Philippine Islands (34 Phil., 311), this Court held the
following:

. . . Paragraph 5 of article 1903 of the Civil Code reads:

"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 cast
the provisions of the preceding article shall be applicable."

The supreme court of Spain in defining the scope of this paragraph said:

"That the obligation to indemnify for damages which a third person causes to another by his fault or
negligence is based, as is evidenced by the same Law 3, Title 15, Partida 7, on that the person obligated,
by his own fault or negligence, takes part in the act or omission of the third party who caused the
damage. It follows therefrom that the state, by virtue of such provisions of law, is not responsible for the
damage suffered by private individuals in consequence of acts performed by its employees in the
discharge of the functions pertaining to their office, because neither fault nor even negligence can be
presumed on the part of the state in the organization of branches of the public service and the
appointment of its agents; on the contrary, we must presuppose all foresight humanly possible on its
part in order that each branch of service serves the general weal and that of private persons interested
in its operation. Between these latter and the state, therefore, no relations of a private nature governed
by the civil law can arise except in a case where the state acts as a judicial person capable of acquiring
rights and contracting obligations." (Supreme Court of Spain, January 7, 1898; 83 Jur. Civ., 24.).

xxx xxx xxx

"That the responsibility of the state is limited by article 1903 to the case wherein it acts through a
special agent (and a special agent, in the sense in which these words are employed, is one who receives
a definite and fixed order or commission, foreign to the exercise of the duties of his office if he is a
special official) so that in representation of the state and being bound to act as an agent thereof, he
executes the trust confided to him. This concept does not apply to any executive agent who is an
employee of the active administration and who on his own responsibility performs the functions which
are inherent in and naturally pertain to his office and which are regulated by law and the regulations."
(Supreme Court of Spain, May 18, 1904; 98 Jur. Civ., 389, 390.).

"That according to paragraph 5 of article 1903 of the Civil Code and the principle laid down in a decision,
among others, of the 18th of May, 1904, in a damage case, the responsibility of the state is limited to
that which it contracts through a special agent, duly empowered by a definite order or commission to
perform some act or charged with some definite purpose which gives rise to the claim, and not where
the claim is based on acts or omissions imputable to a public official charged with some administrative
or technical office who can be held to the proper responsibility. Consequently, the trial court in not so
deciding and in sentencing the said entity to the payment of damages, caused by an official of the
second class referred to, has by erroneous interpretation infringed the provisions of article 1902 and
1903 of the Civil Code.' (Supreme Court of Spain, July 30, 1911; 122 Jur. Civ., 146.)"

There being no showing that whatever negligence may be imputed to the Emergency Control
Administration or its officers, was done by an special agent, because the officers of the Emergency
Control Administration did not act as special agents of the government within the above defined
meaning of that word in article 1903 of the Civil Code in storing gasoline in warehouse of the ECA, the
government is not responsible for the damages caused through such negligence.

The case of Marine Trading vs. Government, 39 Phil., 29, cited by the appellant, is inapplicable, because
the plaintiff in that case recovered under the special provisions of articles 862, 827, 828 and 830 of the
Code of Commerce and the Philippine Marine Regulations of the Collector of Customs, regarding
collision of vessels, and not on the ground of tort in general provided for in article 1903 of the Civil Code.

Act No. 327, in authorizing the filing of claims against the Government with the Insular Auditor, and
appeal by the private persons or entities from the latter's decision to the Supreme Court, does not make
any and all claims against the Government allowable, and the latter responsible for all claims which may
be filed with the Insular Auditor under the provisions of said Act.

In view of the foregoing, the decision appealed from is affirmed.

Paras, Actg. C.J., Pablo Bengzon, Briones, Padilla, and Tuason, JJ., concur.

Separate Opinions

PERFECTO, J., dissenting:

On November 2, 1945, there was a fire at the ECA motor pool, 22 Azcarraga, Manila, reducing to ashes
professional and cultural books, jewelries, clothing, furniture, silverwares, and other household
equipment of Inocencio Rosete and his family, the total value of the losses amounting to P35,376.

The building which was burned was used by the ECA (Emergency Control Administration) as a bodega in
which oil and gasoline, among others, have been stored.

Jose Fraino was the one who started the fire by igniting his cigarette-lighter, which he had just filled with
gasoline, near a 5-gallon drum into which gasoline was then being drained. The spark produced by the
lighter set fire on the gasoline, burning the bodega as well as the surrounding inhabited houses,
together with their contents, among which, being the properties of claimant and his family. Jose Fraino
has been prosecuted by the City Fiscal.

The storage of gasoline and other combustible and inflammable substances requires the securing of
license and permit under the provisions of Acts 649, 650, and 651 of the revised ordinances of Manila
and Ordinance No. 1985. On November 10, 1945, the Mayor of Manila certified that the ECA was not
granted any permit to store gasoline in its motor pool at Azcarraga where the fire took place. The
certification is corroborated by the Acting Assistant Treasurer and of the Acting Chief of the Fire
Department of Manila.

The ECA has been organized by the government for the same substantial purposes for which the
Philippine Relief and Rehabilitation Administration (PRRA) has been created by Commonwealth Act No.
716, where its purposes are specifically stated.
Commonwealth Act No. 327 gives aggrieved parties the right to submit their claims to the Auditor
General for settlement and if dissatisfied with the latter's decision they may appeal to the Supreme
Court.

Inocencio Rosete filed his claim with the Auditor General, who on October 3, 1946, denied the claim
upon the theory that, "for even granting that the officials and employees of the former Emergency
Control Administration (ECA) were negligent, the government cannot be prejudiced by the illegal or
tortious acts of its servants".

The Auditor General failed to examine the merits of the claim in so far as the amount thereof is
concerned.

Claimant appealed to the Supreme Court against the adverse decision of the Auditor General.

The case has been submitted for our decision since January, 1947, and since September, 1947, claimant
has filed with us from time to time urgent motions to expedite the decision of the case.

There seems to be no dispute that the question whether the government or the states is answerable for
the damages suffered by claimant must be decided by applying the provisions of articles 1902 and 1903
of the Civil Code.

Article 1903 provides:

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.

xxx xxx xxx

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.

The provisions of the next preceding article above mentioned is as follows:

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.

The foregoing provisions present two situations:

1. When the state "acts through a special agent".

2. When an act is performed by an official "upon whom previously devolved the duty of doing the act
performed"

In the first case, the State is subject to liability for damages caused by the special agent.

In the second case, it is the official, not the State, who is liable for damages caused by the act he
performed.

The controversy in this case is narrowed down to the question of whether or not the ECA is the special
agent mentioned in article 1903 of the Civil Code.

Our conclusion is that it is.

Paragraph 5 of article 1903 of the Civil Code distinguishes the special agent from the official with specific
duty or duties to perform. Under the meaning of the paragraph, the word official comprises all officials
and employees of the government who exercise duties of their respective public offices. All others who
are acting by commission of the government belong to the class of special agents, whether individual or
juridical bodies.

The ECA was not a branch or office of the government, such as the legislative bodies, the executive
offices, or the tribunals. It was an agency set up for specific purposes which were not attainable through
the official functions entrusted by law to the government or its branches.

The ECA was one of the groups of special agents created by the government for activities ordinarily
ungovernmental in character, such as the Philippine National Bank, the National Development Company,
the National Coconut Corporation, the National Tobacco Corporation, and many other government
enterprises.

In qualifying the special agent with the adjective "special", the Civil Code aimed at distinguishing it from
the regular or ordinary agent of government, which refers to all officers and employees in the public
service. There cannot be any dispute that all persons in the active service of the government, regardless
of department or branch, are agents of the State or of the people. All of them are properly designated as
servants of the people. Servants are agents.

The Civil Code uses the adjective "special", because its authors could not miss the fact that the official,
mentioned in paragraph 5 of article 1903, is also an agent.

For all the foregoing, the decision of the Auditor General, dated Oct. 3, 1946, denying petitioner's claim
should be set aside, not only because it is supported by law, but because it is premised on the
totalitarian philosophy of the State's immunity for whatever wrong it may perpetrate.

The Auditor General should be ordered to grant appellant's claim in the amount that may be supported
by evidence, to present which, the Auditor General shall first give opportunity to claimant.

We dissent from the majority decision, which appears to be based on a gratuitous assumption,
unsupported by fact and by law.
CIRIACO L. MERCADO, petitioner,

vs.

THE COURT OF APPEALS, MANUEL QUISUMBING, JR., ET AL., respondents.

Abad Santos and Pablo for petitioner.

Sycip, Quisumbing, Salazar and Associates for respondents.

LABRADOR, J.:

This is a petition to review a decision of the Court of Appeals, which condemned petitioner to pay
P2,000 as moral damages and P50 for medical expenses, for a physical injury caused by the son of
petitioner, Augusto Mercado, on a classmate, Manuel Quisumbing, Jr., both pupils of the Lourdes
Catholic School, Kanlaon, Quezon City. The case had originated in the Court of First Instance of Manila,
Hon. Bienvenido A. Tan, presiding, which dismissed the complaint filed by Manuel Quisumbing, Jr. and
his father against petitioner, father of the above-mentioned Mercado. The facts found by the Court of
Appeals are as follows:

Plaintiff-appellant Manuel Quisumbing, Jr. is the son of his co-plaintiff-appellants Ana Pineda and
Manuel L. Quisumbing, while Augusto Mercado is the son of defendant-appellee Ciriaco L. Mercado,
Manuel Quisumbing, Jr. and Augusto Mercado were classmates in the Lourdes Catholic School on
Kanlaon, Quezon City. A "pitogo", which figures prominently in this case, may be described as an empty
nutshell used by children as a piggy bank. On February 22, 1956, Augusto Mercado and Manuel
Quisumbing, Jr. quarrelled over a "pitogo". As a result, Augusto wounded Manuel, Jr. on the right cheek
with a piece of razor.

xxx xxx xxx

The facts of record clearly show that it was Augusto Mercado who started the aggression. Undeniably,
the "pitogo" belonged to Augusto Mercado but he lent it to Benedicto P. Lim and in turn Benedicto lent
it to Renato Legaspi. Renato was not aware that the "pitogo" belonged to Augusto, because right after
Benedicto gave it to him, Benedicto ran away to get a basket ball with which they could play. Manuel
Quisumbing, Jr. was likewise unaware that the "pitogo" belonged to Augusto. He thought it was the
"pitogo" of Benedicto P. Lim, so that when Augusto attempted to get the "pitogo" from Renato, Manuel,
Jr. told him not to do so because Renato was better at putting the chain into the holes of the "pitogo".
However, Augusto resented Manuel, Jr.'s remark and he aggresively pushed the latter. The fight started
then. After Augusto gave successive blows to Manuel, Jr., and the latter was clutching his stomach which
bore the brunt of Augusto's anger, Augusto seeing that Manuel, Jr. was in a helpless position, cut him on
the right check with a piece of razor.

xxx xxx xxx

Although the doctor who treated Manuel Quisumbing, Jr., Antonio B. Past, testified for plaintiffs-
appellants, he did not declare as to the amount of fees he collected from plaintiff-appellants for the
treatment of Manuel, Jr. the child was not even hospitalized for the wound. We believe that the sum of
P50.00 is a fair approximation of the medical expenses incurred by plaintiffs-appellants.

xxx xxx xxx

The damages specified in paragraphs C and D of the aforequoted portion of plaintiffs-appellant's

complaint come under the class of moral damages. The evidence of record shows that the child suffered
moral damages by reason of the wound inflicted by Augusto Mercado. Though such kind of damages
cannot be fully appreciated in terms of money, we believe that the sum of P2,000.00 would fully
compensate the child.

As second cause of action, plaintiffs-appellants pray for P5,000.00 covering the moral damages they
allegedly suffered due to their son's being wounded; and the sum of P3,000.00 as attorney's fees. The
facts of record do not warrant the granting of moral damages to plaintiffs-appellants Manuel
Quisumbing and Ana Pineda. "In law mental anguish is restricted, as a rule, to such mental pain or
suffering as arises from an injury or wrong to the person himself, as distinguished from that form of
mental suffering which is the accompaniment of sympathy or sorrow for another's suffering of which
arises from a contemplation of wrong committed on the person of another. Pursuant to the rule stated,
a husband or wife cannot recover for mental suffering caused by his or her sympathy for the other's
suffering. Nor can a parent recover for mental distress and anxiety on account of physical injury
sustained by a child or for anxiety for the safety of his child placed in peril by the negligence of another."
(15 Am. Jur. 597). Plaintiffs-appellants are not entitled to attorney's fees, it not appearing that
defendant-appellee had wantonly disregarded their claim for damages.
In the first, second and third assignments of error, counsel for petitioner argues that since the incident
of the inflicting of the wound on respondent occurred in a Catholic School (during recess time), through
no fault of the father, petitioner herein, the teacher or head of the school should be held responsible
instead of the latter. This precise question was brought before this Court in Exconde vs. Capuno and
Capuno, 101 Phil., 843, but we held, through Mr. Justice Bautista:

We find merit in this claim. It is true that under the law above-quoted, "teachers or directors of arts and
trades are liable for any damage caused by their pupils or apprentices while they are under their
custody", but this provision only applies to an institution of arts and trades and not to any academic
educational institution (Padilla, Civil Law, 1953 Ed., Vol. IV, p. 841; See 12 Manresa, 4th Ed., p. 557)

The last paragraph of Article 2180 of the Civil Code, upon which petitioner rests his claim that the school
where his son was studying should be made liable, is as follows:

ART. 2180. . . .

Lastly, teachers or heads of establishments of arts and trades shall be liable for damages caused by their
pupils and students or apprentices, so long as they remain in their custody.

It would be seem that the clause "so long as they remain in their custody," contemplates a situation
where the pupil lives and boards with the teacher, such that the control, direction and influence on the
pupil supersedes those of the parents. In these circumstances the control or influence over the conduct
and actions of the pupil would pass from the father and mother to the teacher; and so would the
responsibility for the torts of the pupil. Such a situation does not appear in the case at bar; the pupils
appear to go to school during school hours and go back to their homes with their parents after school is
over. The situation contemplated in the last paragraph of Article 2180 does not apply, nor does
paragraph 2 of said article, which makes father or mother responsible for the damages caused by their
minor children. The claim of petitioner that responsibility should pass to the school must, therefore, be
held to be without merit.

We next come to the claim of petitioner that the moral damages fixed at P2,000 are excessive. We note
that the wound caused to respondent was inflicted in the course of an ordinary or common fight
between boys in a grade school. The Court of Appeals fixed the medical expenses incurred in treating
and curing the wound at P50. Said court stated that the wound did not even require hospitalization.
Neither was Mercado found guilty of any offense nor the scar in Quisumbing's face pronounced to have
caused a deformity, unlike the case of Araneta, et al. vs. Arreglado, et al., 104 Phil., 529; 55 Off. Gaz. (9)
1561. Petitioner's counsel argues that if death call for P3,000 to P6,000, certainly the incised wound
could cause mental pain and suffering to the tune of P2,000.

In the decision of the Court of Appeals, said court pronounces that the child Quisumbing suffered moral
damages "by reason of the wound inflicted by Augusto Mercado." While moral damages included
physical suffering, which must have been caused to the wounded boy Quisumbing (Art. 2217, Civil
Code), the decision of the court below does not declare that any of the cases specified in Article 2219 of
the Civil Code in which moral damages may be recovered, has attended or occasioned the physical
injury. The only possible circumstance in the case at bar in which moral damages are recoverable would
be if a criminal offense or a quasi-delict has been committed.

It does not appear that a criminal action for physical injuries was ever presented. The offender, Augusto
Mercado, was nine years old and it does not appear that he had acted with discernment when he
inflicted the physical injuries on Manuel Quisumbing, Jr.

It is possible that the Court of Appeals may have considered Augusto Mercado responsible for or guilty,
of a quasi-delict causing physical injuries, within the meaning of paragraph 2 of Article 2219. Even if we
assume that said court considered Mercado guilty of a quasi-delict when it imposed the moral damages,
yet the facts found by said court indicate that Augusto's resentment, which motivated the assault, was
occasioned by the fact that Manuel, Jr. had tried to intervene in or interfere with the attempt of
Mercado to get "his pitogo from Renato." This is, according to the decision appealed from, the reason
why Mercado was incensed and pushed Quisumbing who, in turn, also pushed Mercado. It is, therefore,
apparent that the proximate cause of the injury caused to Quisumbing was Quisumbing's own fault or
negligence for having interfered with Mercado while trying to get the pitogo from another boy. (Art.
2179, Civil Code.)

After considering all the facts as found by the Court of Appeals, we find that none of the cases
mentioned in Article 2219 of the Civil Code, which authorizes the grant of moral damages, was shown to
have existed. Consequently, the grant of moral damages is not justified.
For the foregoing considerations, the decision appealed from is hereby reversed and the petitioner is
declared exempt or free from the payment of moral damages. The award of P50 for medical expenses,
however, is hereby affirmed. Without costs.

Spouses MOISES P. PALISOC and BRIGIDA P. PALISOC, plaintiffs-appellants,

vs.

ANTONIO C. BRILLANTES and TEODOSIO V. VALENTON, owner and President, respectively, of a school
of arts and trades, known under the name and style of "Manila Technical Institute" (M.I.T.), VIRGILIO
L. DAFFON and SANTIAGO M. QUIBULUE, defendants-appellees.

Leovillo C. Agustin for plaintiffs-appellants. .

Honorato S. Reyes for appellee Brillantes, et al. .

Villareal, Almacen Navarra & Amores for appellee Daffon. .

TEEHANKEE, J.:

An appeal in forma pauperis on pure questions of law from a decision of the Court of First Instance of
Manila. .

Plaintiffs-appellants as parents of their sixteen-year old son, Dominador Palisoc, and a student in
automotive mechanics at the Manila Technical Institute, Quezon Boulevard, Manila, had filed on May
19, 1966, the action below for damages arising from the death on March 10, 1966 of their son at the
hands of a fellow student, defendant Virgilio L. Daffon, at the laboratory room of the said Institute. .
Defendants, per the trial court's decision, are: "(T)he defendant Antonio C. Brillantes, at the time when
the incident which gave rise to his action occurred was a member of the Board of Directors of the
institute; 1 the defendant Teodosio Valenton, the president thereof; the defendant Santiago M.
Quibulue, instructor of the class to which the deceased belonged; and the defendant Virgilio L. Daffon, a
fellow student of the deceased. At the beginning the Manila Technical Institute was a single
proprietorship, but lately on August 2, 1962, it was duly incorporated."

The facts that led to the tragic death of plaintiffs' son were thus narrated by the trial court: "(T)he
deceased Dominador Palisoc and the defendant Virgilio L. Daffon were classmates, and on the afternoon
of March 10, 1966, between two and three o'clock, they, together with another classmate Desiderio
Cruz were in the laboratory room located on the ground floor. At that time the classes were in recess.
Desiderio Cruz and Virgilio L. Daffon were working on a machine while Dominador Palisoc was merely
looking on at them. Daffon made a remark to the effect that Palisoc was acting like a foreman. Because
of this remark Palisoc slapped slightly Daffon on the face. Daffon, in retaliation, gave Palisoc a strong flat
blow on the face, which was followed by other fist blows on the stomach. Palisoc retreated apparently
to avoid the fist blows, but Daffon followed him and both exchanged blows until Palisoc stumbled on an
engine block which caused him to fall face downward. Palisoc became pale and fainted. First aid was
administered to him but he was not revived, so he was immediately taken to a hospital. He never
regained consciousness; finally he died. The foregoing is the substance of the testimony of Desiderio
Cruz, the lone witness to the incident."

The trial court expressly gave credence to this version of the incident, as testified to by the lone
eyewitness, Desiderio Cruz, a classmate of the protagonists, as that of a disinterested witness who "has
no motive or reason to testify one way or another in favor of any party" and rejected the self-
exculpatory version of defendant Daffon denying that he had inflicted any fist blows on the deceased. .

With the postmortem findings of Dr. Angelo Singian of the Manila Police Department who performed
the autopsy re "Cause of death: shock due to traumatic fracture of theribs (6th and 7th, left, contusion
of the pancreas and stomach with intra-gastric hemorrhage and slight subarachnoid hemorrhage on the
brain," and his testimony that these internal injuries of the deceased were caused "probably by strong
fist blows," the trial court found defendant Daffon liable for the quasi delict under Article 2176 of the
Civil Code. 3 It held that "(T)he act, therefore, of the accused Daffon in giving the deceased strong
fistblows in the stomach which ruptured his internal organs and caused his death falls within the
purview of this article of the Code." 4
The trial court, however, absolved from liability the three other defendants-officials of the Manila
Technical Institute, in this wise:

... Their liabilities are based on the provisions of Article 2180 of the New Civil Code which reads:

Art. 2180. ... .

Lastly, teachers or heads of establishments of arts and trades shall be liable for damages caused by their
pupils and students and apprentices, so long as they remain in their custody.

In the opinion of the Court, this article of the Code is not applicable to the case at bar, since this
contemplates the situation where the control or influence of the teachers and heads of school
establishments over the conduct and actions by the pupil supersedes those of the parents.

CIVIL LAW: DAMAGES ART 2180. NEW CIVIL CODE CONSTRUED: — The clause "so long as they remain in
their custody" contained in Article 2180 of the new civil code contemplated a situation where the pupil
lives and boards with the teacher, such that the control or influence on the pupil supersedes those of
the parents. In those circumstances the control or influence over the conduct and actions of the pupil as
well as the responsibilities for their sort would pass from the father and mother to the teachers. (Ciriaco
L. Mercado, Petitioner vs. the Court of Appeals, Manuel Quisumbing, Jr., et al., respondents, G.R. No. L-
14862, May 30, 1960). 5

There is no evidence that the accused Daffon lived and boarded with his teacher or the other defendant
officials of the school. These defendants cannot therefore be made responsible for the tort of the
defendant Daffon.

Judgment was therefore rendered by the trial court as follows:

1. Sentencing the defendant Virgilio L. Daffon to pay the plaintiffs as heirs of the deceased
Dominador Palisoc (a) P6,000.00 for the death of Dominador Palisoc; (b) P3,375.00 for actual and
compensatory expenses; (c) P5,000.00 for moral damages; (d) P10,000.00 for loss of earning power,
considering that the deceased was only between sixteen and seventeen years, and in good health when
he died, and (e) P2,000.00 for attorney's fee, plus the costs of this action. .

2. Absolving the other defendants. .

3. Dismissing the defendants' counterclaim for lack of merit.

Plaintiffs' appeal raises the principal legal question that under the factual findings of the trial court,
which are now beyond review, the trial court erred in absolving the defendants-school officials instead
of holding them jointly and severally liable as tortfeasors, with defendant Daffon, for the damages
awarded them as a result of their son's death. The Court finds the appeal, in the main, to be meritorious.
.

1. The lower court absolved defendants-school officials on the ground that the provisions of Article
2180, Civil Code, which expressly hold "teachers or heads of establishments of arts and trades ... liable
for damages caused by their pupils and students and apprentices, so long as they remain in their
custody," are not applicable to to the case at bar, since "there is no evidence that the accused Daffon
[who inflicted the fatal fistblows] 6 lived and boarded with his teacher or the other defendants-officials
of the school. These defendants cannot therefore be made responsible for the tort of the defendant
Daffon."

The lower court based its legal conclusion expressly on the Court's dictum in Mercado vs. Court of
Appeals, 7 that "(I)t would seem that the clause "so long as they remain in their custody," contemplates
a situation where the pupil lives and boards with the teacher, such that the control, direction and
influence on the pupil supersedes those of the parents. In these circumstances the control or influence
over the conduct and actions of the pupil would pass from the father and mother to the teacher; and so
would the responsibility for the torts of the pupil. Such a situation does not appear in the case at bar;
the pupils appear to go to school during school hours and go back to their homes with their parents
after school is over." This dictum had been made in rejecting therein petitioner father's contention that
his minor son's school, Lourdes Catholic School at Kanlaon, Quezon City [which was not a party to the
case] should be held responsible, rather than him as father, for the moral damages of P2,000.00
adjudged against him for the physical injury inflicted by his son on a classmate. [A cut on the right cheek
with a piece of razor which costs only P50.00 by way of medical expenses to treat and cure, since the
wound left no scar.] The moral damages award was after all set aside by the Court on the ground that
none of the specific cases provided in Article 2219, Civil Code, for awarding moral damages had been
established, petitioner's son being only nine years old and not having been shown to have "acted with
discernment" in inflicting the injuries on his classmate. .

The dictum in Mercado was based in turn on another dictum in the earlier case of Exconde vs. Capuno, 8
where the only issue involved as expressly stated in the decision, was whether the therein defendant-
father could be civilly liable for damages resulting from a death caused in a motor vehicle accident
driven unauthorizedly and negligently by his minor son, (which issue was resolved adversely against the
father). Nevertheless, the dictum in such earlier case that "It is true that under the law abovequoted,
teachers or directors of arts and trades are liable for any damage caused by their pupils or apprentices
while they are under their custody, but this provision only applies to an institution of arts and trades and
not to any academic educational institution" was expressly cited and quoted in Mercado. .

2. The case at bar was instituted directly against the school officials and squarely raises the issue of
liability of teachers and heads of schools under Article 2180, Civil Code, for damages caused by their
pupils and students against fellow students on the school premises. Here, the parents of the student at
fault, defendant Daffon, are not involved, since Daffon was already of age at the time of the tragic
incident. There is no question, either, that the school involved is a non-academic school, 9 the Manila
Technical Institute being admittedly a technical vocational and industrial school. .

The Court holds that under the cited codal article, defendants head and teacher of the Manila Technical
Institute (defendants Valenton and Quibulue, respectively) are liable jointly and severally for damages to
plaintiffs-appellants for the death of the latter's minor son at the hands of defendant Daffon at the
school's laboratory room. No liability attaches to defendant Brillantes as a mere member of the school's
board of directors. The school itself cannot be held similarly liable, since it has not been properly
impleaded as party defendant. While plaintiffs sought to so implead it, by impleading improperly
defendant Brillantes, its former single proprietor, the lower court found that it had been incorporated
since August 2, 1962, and therefore the school itself, as thus incorporated, should have been brought in
as party defendant. Plaintiffs failed to do so, notwithstanding that Brillantes and his co-defendants in
their reply to plaintiffs' request for admission had expressly manifested and made of record that
"defendant Antonio C. Brillantes is not the registered owner/head of the "Manila Technical Institute"
which is now a corporation and is not owned by any individual person." 10

3. The rationale of such liability of school heads and teachers for the tortious acts of their pupils
and students, so long as they remain in their custody, is that they stand, to a certain extent, as to their
pupils and students, in loco parentis and are called upon to "exercise reasonable supervision over the
conduct of the child." 11 This is expressly provided for in Articles 349, 350 and 352 of the Civil Code. 12
In the law of torts, the governing principle is that the protective custody of the school heads and
teachers is mandatorily substituted for that of the parents, and hence, it becomes their obligation as
well as that of the school itself to provide proper supervision of the students' activities during the whole
time that they are at attendance in the school, including recess time, as well as to take the necessary
precautions to protect the students in their custody from dangers and hazards that would reasonably be
anticipated, including injuries that some student themselves may inflict willfully or through negligence
on their fellow students. .

4. As tersely summarized by Mr. Justice J.B.L. Reyes in his dissenting opinion in Exconde, "the basis
of the presumption of negligence of Art. 1903 [now 2180] is some culpa in vigilando that the parents,
teachers, etc. are supposed to have incurred in the exercise of their authority" 13 and "where the parent
places the child under the effective authority of the teacher, the latter, and not the parent, should be
the one answerable for the torts committed while under his custody, for the very reason that the parent
is not supposed to interfere with the discipline of the school nor with the authority and supervision of
the teacher while the child is under instruction." The school itself, likewise, has to respond for the fault
or negligence of its school head and teachers under the same cited article. 14

5. The lower court therefore erred in law in absolving defendants-school officials on the ground
that they could be held liable under Article 2180, Civil Code, only if the student who inflicted the fatal
fistblows on his classmate and victim "lived and boarded with his teacher or the other defendants
officials of the school." As stated above, the phrase used in the cited article — "so long as (the students)
remain in their custody" means the protective and supervisory custody that the school and its heads and
teachers exercise over the pupils and students for as long as they are at attendance in the school,
including recess time. There is nothing in the law that requires that for such liability to attach the pupil
or student who commits the tortious act must live and board in the school, as erroneously held by the
lower court, and the dicta in Mercado (as well as in Exconde) on which it relied, must now be deemed to
have been set aside by the present decision. .

6. Defendants Valenton and Quibulue as president and teacher-in-charge of the school must
therefore be held jointly and severally liable for the quasi-delict of their co-defendant Daffon in the
latter's having caused the death of his classmate, the deceased Dominador Palisoc. The unfortunate
death resulting from the fight between the protagonists-students could have been avoided, had said
defendants but complied with their duty of providing adequate supervision over the activities of the
students in the school premises to protect their students from harm, whether at the hands of fellow
students or other parties. At any rate, the law holds them liable unless they relieve themselves of such
liability, in compliance with the last paragraph of Article 2180, Civil Code, by "(proving) that they
observed all the diligence of a good father of a family to prevent damage." In the light of the factual
findings of the lower court's decision, said defendants failed to prove such exemption from liability. .
7. Plaintiffs-appellees' contention that the award of P6,000.00 as indemnity for the death of their
son should be increased to P12,000.00 as set by the Court in People vs. Pantoja, 15 and observed in all
death indemnity cases thereafter is well taken. The Court, in Pantoja, after noting the decline in the
purchasing power of the Philippine peso, had expressed its "considered opinion that the amount of
award of compensatory damages for death caused by a crime or quasi-delict should now be
P12,000.00." The Court thereby adjusted the minimum amount of "compensatory damages for death
caused by a crime or quasi-delict" as per Article 2206, Civil Code, from the old stated minimum of
P3,000.00 to P12,000.00, which amount is to be awarded "even though there may have been mitigating
circumstances" pursuant to the express provisions of said codal article. .

8. Plaintiffs-appellees' other claims on appeal that the lower court should have awarded exemplary
damages and imposed legal interest on the total damages awarded, besides increasing the award of
attorney's fees all concern matters that are left by law to the discretion of the trial court and the Court
has not been shown any error or abuse in the exercise of such discretion on the part of the trial court.
16 Decisive here is the touchstone provision of Article 2231, Civil Code, that "In quasi-delicts, exemplary
damages may be granted if the defendant acted with gross negligence." No gross negligence on the part
of defendants was found by the trial court to warrant the imposition of exemplary damages, as well as
of interest and increased attorney's fees, and the Court has not been shown in this appeal any
compelling reason to disturb such finding. .

ACCORDINGLY, the judgment appealed from is modified so as to provide as follows: .

1. Sentencing the defendants Virgilio L. Daffon, TeodosioV. Valenton and Santiago M. Quibulue
jointly and severally to pay plaintiffs as heirs of the deceased Dominador Palisoc (a) P12,000.00 for the
death of Dominador Palisoc; (b) P3,375.00 for actual and compensatory expenses; (c) P5,000.00 for
moral, damages; (d) P10,000.00 for loss of earning power and (e) P2,000.00 for attorney's fee, plus the
costs of this action in both instances; 2. absolving defendant Antonio C. Brillantes from the complaint;
and 3. dismissing defendants' counterclaims. .

Concepcion, C.J., Villamor and Makasiar, JJ., concur. .

Dizon, J., took no part. .

REYES, J.B.L., J., concurring: .

I concur with the opinion of Mr. Justice Teehankee but would like to clarify that the argument of the
dissenting opinion of the effect that the responsibility of teachers and school officers under Articles
2180 should be limited to pupils who are minors (below the age of majority) is not in accord with the
plain text of the law. Article 2180 of the Civil Code of the Philippines is to the following effect: .

The obligation imposed by article 2176 is demandable not only for one's own acts or omissions, but also
for those of persons for whom one is responsible. .

The father and, in case of his death or incapacity, the mother, are responsible for the damages caused
by the minor children who live in their company. .

Guardians are liable for damages caused by the minors or incapacitated persons who are under their
authority and live in their company. .

The owners and managers of an establishment or enterprise are likewise responsible for damages
caused by their employees in the service of the branches in which the latter are employed or on the
occasion of their functions. .

Employers shall be liable for the damages caused by their employees and household helpers acting
within the scope of their assigned tasks, even though the former are not engaged in any business or
industry. .

The State is responsible in like manner when it acts through a special agent; but not when the damage
has been caused by the official to whom the task done properly pertains, in which case what is provided
in article 2176 shall be applicable. .

Lastly, teachers or heads of establishments of arts and trades shall be liable for damages caused by their
pupils and students or apprentices, so long as they remain in their custody.
The responsibility treated of in this article shall cease when the persons herein mentioned prove that
they observe all the diligence of a good father of a family to prevent damages.

Examination of the article shows that where the responsibility prescribed therein is limited to illegal acts
during minority, the article expressly so provides, as in the case of the parents and of the guardians. It is
natural to expect that if the law had intended to similarly restrict the civil responsibility of the other
categories of persons enumerated in the article, it would have expressly so stated. The fact that it has
not done so indicates an intent that the liability be not restricted to the case of persons under age.
Further, it is not without significance that the teachers and heads of scholarly establishments are not
grouped with parents and guardians but ranged with owners and managers of enterprises, employers
and the state, as to whom no reason is discernible to imply that they should answer only for minors. .

Giorgi, in his well-known "Teoria de las Obligaciones en el Derecho Moderno", Volume 5, page 404, No.
272 (Sp. Ed.), after noting the split among commentators on the point it issue, observes with
considerable cogency that —

272. Ante esta variedad de opiniones, ninguna de las cuales se funds en argumentos merecedores de
seria ponderacion, no es facil tomar un partido. Esto no obstante, debiendo manisfestar nuestra
opinion, nos acercamos a la de los que no estiman necesaria la menor edad del discipulo o del aprendiz;
porque si el aforismo ubi voluit dixit, ubi noluit tacuit, no es siempre argumento seguro para interpreter
la ley, es infalible cuanto se refiere a una misma disposicion relative a varios casos. Y tal es el art. 1.153.
Lo que haya establecido important poco si, elevandones a los principios de razon, puede dudarse de la
oportunidad de semajante diferencia; porque la voluntad cierta del legislador prevalece in iure condito a
cualquier otra consideracion. Por otra parte, si bien se considera, no puede parecer extrano o absurdo el
suponer que un discipulo y un aprendiz, aunque mayores de edad, acepten voluntariamente la entera
vigilancia de su preceptor mientras dura la educacion. Ni parece dudoso desde el momento que los
artesanos y los preceptores deben, al par de los padres, responder civilmente de los daños comitidos
por sus discipulos, aun cuando estos esten faltos de discernimiento.

Similarly, Planiol-Ripert, in their "Droit Civil Pratique," Volume VI, No. 635 (Spanish version), say that —

635. Personas de quien responde. — Si bien la responsibilidad del maestro es originalmente una
estension de la de los padres (1), el art. 1384 no especifica que los alumnos y aprendices han de ser
menores de edad, por lo que la presuncion de culpa funcionara aun cuando sean mayores (2); pero, la
vigilancia no tendra que ser ejercida en iguales terminos. Aun respecto a los menores variara segun la
edad, extremo que tendra que ternese en ceunta a los fines de apreciar si el maestro ha podido impedir
el acto nocivo o no. .

I submit, finally, that while in the case of parents and guardians, their authority and supervision over the
children and wards end by law upon the latter reaching majority age, the authority and custodial
supervision over pupils exist regardless of the age of the latter. A student over twenty-one, by enrolling
and attending a school, places himself under the custodial supervision and disciplinary authority of the
school authorities, which is the basis of the latter's correlative responsibility for his torts, committed
while under such authority. Of course, the teachers' control is not as plenary as when the student is a
minor; but that circumstance can only affect the decree of the responsibility but cannot negate the
existence thereof. It is only a factor to be appreciated in determining whether or not the defendant has
exercised due diligence in endeavoring to prevent the injury, as prescribed in the last paragraph of
Article 2180. .

Barredo, J., concurs.

Separate Opinions

MAKALINTAL, J., dissenting:

I vote to affirm the decision appealed from. I see no reason to depart from the doctrine laid down by
this Court in Mercado v. Court of Appeals, 108 Phil. 414, where the clause "so long as they remain in
their custody" used in Article 2180 of the Civil Code was construed as referring to a "situation where the
pupil lives and boards with the teacher, such that the (latter's) control, direction and influence on the
pupil supersedes those of the parents." I think it is highly unrealistic and conducive to unjust results,
considering the size of the enrollment in many of our educational institutions, academic and non-
academic, as well as the temper, attitudes and often destructive activism of the students, to hold their
teachers and/or the administrative heads of the schools directly liable for torts committed by them.
When even the school authorities find themselves besieged, beleaguered and attacked, and unable to
impose the traditional disciplinary measures formerly recognized as available to them, such as
suspension or outright expulsion of the offending students, it flies in the face of logic and reality to
consider such students, merely from the fact of enrollment and class attendance, as "in the custody" of
the teachers or school heads within the meaning of the statute, and to hold the latter liable unless they
can prove that they have exercised "all the diligence of a good father of the family to prevent damage."
Article 2180, if applied as appellants construe it, would be bad law. It would demand responsibility
without commensurate authority, rendering teachers and school heads open to damage suits for causes
beyond their power to control. Present conditions being what they are, I believe the restrictive
interpretation of the aforesaid provision enunciated in Mercado should be maintained. .

With particular reference to the case at bar, one other factor constrains me to dissent. The opinion of
the majority states: "Here, the parents of the student at fault, defendant Daffon, are not involved, since
Daffon was already of age at the time of the tragic incident." This statement is of course in accordance
with Article 2180, which says that "the father and, in case of his death or incapacity, the mother, are
responsible for the damages caused by the minor children who live in their company." Note that for
parental responsibility to arise the children must be minors who live in their company. If, as stated also
in the opinion of the majority, "the rationale of (the) liability of school heads and teachers for the
tortious acts of their pupils and students, so long as they remain in their custody, is that they stand, to a
certain extent, as to their pupils and students, in loco parentis and are called upon to exercise
reasonable supervision over the conduct of the child," then it stands to reason that (1) the clause "so
long as they remain in their custody" as used in reference to teachers and school heads should be
equated with the phrase "who live in their company" as used in reference to parents; and (2) that just as
parents are not responsible for damages caused by their children who are no longer minors, so should
teachers and school heads be exempt from liability for the tortious acts of their students in the same
age category. I find no justification, either in the law itself or in justice and equity, to make a substitute
parent liable where the real parent would be free from liability. .

Zaldivar, Castro and Fernando, JJ., concur.

Separate Opinions

MAKALINTAL, J., dissenting:

I vote to affirm the decision appealed from. I see no reason to depart from the doctrine laid down by
this Court in Mercado v. Court of Appeals, 108 Phil. 414, where the clause "so long as they remain in
their custody" used in Article 2180 of the Civil Code was construed as referring to a "situation where the
pupil lives and boards with the teacher, such that the (latter's) control, direction and influence on the
pupil supersedes those of the parents." I think it is highly unrealistic and conducive to unjust results,
considering the size of the enrollment in many of our educational institutions, academic and non-
academic, as well as the temper, attitudes and often destructive activism of the students, to hold their
teachers and/or the administrative heads of the schools directly liable for torts committed by them.
When even the school authorities find themselves besieged, beleaguered and attacked, and unable to
impose the traditional disciplinary measures formerly recognized as available to them, such as
suspension or outright expulsion of the offending students, it flies in the face of logic and reality to
consider such students, merely from the fact of enrollment and class attendance, as "in the custody" of
the teachers or school heads within the meaning of the statute, and to hold the latter liable unless they
can prove that they have exercised "all the diligence of a good father of the family to prevent damage."
Article 2180, if applied as appellants construe it, would be bad law. It would demand responsibility
without commensurate authority, rendering teachers and school heads open to damage suits for causes
beyond their power to control. Present conditions being what they are, I believe the restrictive
interpretation of the aforesaid provision enunciated in Mercado should be maintained. .

With particular reference to the case at bar, one other factor constrains me to dissent. The opinion of
the majority states: "Here, the parents of the student at fault, defendant Daffon, are not involved, since
Daffon was already of age at the time of the tragic incident." This statement is of course in accordance
with Article 2180, which says that "the father and, in case of his death or incapacity, the mother, are
responsible for the damages caused by the minor children who live in their company." Note that for
parental responsibility to arise the children must be minors who live in their company. If, as stated also
in the opinion of the majority, "the rationale of (the) liability of school heads and teachers for the
tortious acts of their pupils and students, so long as they remain in their custody, is that they stand, to a
certain extent, as to their pupils and students, in loco parentis and are called upon to exercise
reasonable supervision over the conduct of the child," then it stands to reason that (1) the clause "so
long as they remain in their custody" as used in reference to teachers and school heads should be
equated with the phrase "who live in their company" as used in reference to parents; and (2) that just as
parents are not responsible for damages caused by their children who are no longer minors, so should
teachers and school heads be exempt from liability for the tortious acts of their students in the same
age category. I find no justification, either in the law itself or in justice and equity, to make a substitute
parent liable where the real parent would be free from liability. .

Zaldivar, Castro and Fernando, JJ., concur.

Footnotes

1 Per allegations of the complaint and as indicated in the title of the case. Brillantes was made
defendant as "registered owner/head under Act No. 3883" of the Manila Technical Institute. .

2 Notes in parentheses supplied from other portions of autopsy report..

3 "ART. 2176. Whoever by act or omission causes damage to another, there being fault or
negligence, is obliged to pay for the damage done. Such fault or negligence, if there is no pre-existing
contractual relation between the parties, is called a quasi-delict and is governed by the provisions of this
Chapter.(1902a)."

4 Per the decision also, defendant Daffon had been charged for homicide for the death in Criminal
Case No. 82419 and was "acquitted on reasonable doubt."

5 Reported in 108 Phil. 414. .

6 Note in brackets supplied. .

7 108 PhiI. 414 (May 1960). .

8 101 Phil. 843 (June 29, 1957), a six-to-three decision. .

9 The writer concurs with the views expressed in the dissenting opinion of Mr. Justice J.B.L. Reyes
in Exconde [concurred in by Justices Padilla and A. Reyes] that "(I) can see no sound reason for limiting
Art. 1903 of the old Civil Code to teachers of arts and trades and not to academic ones. What substantial
difference is there between them in so far as concerns the proper supervision and vigilance over their
pupils. It cannot be seriously contended that an academic teacher is exempt from the duty of watching
that his pupils do not commit a tort to the detriment of third persons, so long as they are in a position to
exercise authority and supervision over the pupil." However, since the school involved at bar is a non-
academic school, the question as to the applicability of the cited codal provision to academic institutions
will have to await another case wherein it may properly be raised. .

10 Rollo Page, 47. .

11 Art. 350, Civil Code. .

12 Art. 349, Civil Code enumerates: "(2) Teachers and professors" and "(4) directors of trade
establishments, with regard to apprentices" among those who "shall exercise substitute parental
authority." Art. 352, Civil Code provides that "The relation between teacher and pupil, professor and
student, are fixed by government regulations and those of each school or institution. ..."

13 Tolentino expresses a similar opinion: "Teachers: — In order to be within this provision, a teacher
must not only be charged with teaching but also vigilance over their students or pupils. They include
teachers in educational institutions of all kinds, whether for the intellect, the spirit, or the body;
teachers who give instruction in classes or by individuals, even in their own homes; teachers in
institutions for deficient or abandoned children, and those in correctional institutions."
14 "ART. 2180. The obligation imposed by article 2176 is demandable not only for one's own acts or
omissions, but also for those of persons for whom one is responsible. ...

"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. .

"... ."

JOSE S. AMADORA, LORETA A. AMADORA, JOSE A. AMADORA JR., NORMA A. YLAYA PANTALEON A.
AMADORA, JOSE A. AMADORA III, LUCY A. AMADORA, ROSALINDA A. AMADORA, PERFECTO A.
AMADORA, SERREC A. AMADORA, VICENTE A. AMADORA and MARIA TISCALINA A. AMADORA,
petitioners

vs.

HONORABLE COURT OF APPEALS, COLEGIO DE SAN JOSE-RECOLETOS, VICTOR LLUCH SERGIO P.

DLMASO JR., CELESTINO DICON, ANIANO ABELLANA, PABLITO DAFFON thru his parents and natural
guardians, MR. and MRS. NICANOR GUMBAN, and ROLANDO VALENCIA, thru his guardian, A.
FRANCISCO ALONSO, respondents.

Jose S. Amadora & Associates for petitioners.

Padilla Law Office for respondents.

CRUZ, J.:

Like any prospective graduate, Alfredo Amadora was looking forward to the commencement exercises
where he would ascend the stage and in the presence of his relatives and friends receive his high school
diploma. These ceremonies were scheduled on April 16, 1972. As it turned out, though, fate would
intervene and deny him that awaited experience. On April 13, 1972, while they were in the auditorium
of their school, the Colegio de San Jose-Recoletos, a classmate, Pablito Damon, fired a gun that mortally
hit Alfredo, ending all his expectations and his life as well. The victim was only seventeen years old. 1

Daffon was convicted of homicide thru reckless imprudence . 2 Additionally, the herein petitioners, as
the victim's parents, filed a civil action for damages under Article 2180 of the Civil Code against the
Colegio de San Jose-Recoletos, its rector the high school principal, the dean of boys, and the physics
teacher, together with Daffon and two other students, through their respective parents. The complaint
against the students was later dropped. After trial, the Court of First Instance of Cebu held the
remaining defendants liable to the plaintiffs in the sum of P294,984.00, representing death
compensation, loss of earning capacity, costs of litigation, funeral expenses, moral damages, exemplary
damages, and attorney's fees . 3 On appeal to the respondent court, however, the decision was reversed
and all the defendants were completely absolved . 4

In its decision, which is now the subject of this petition for certiorari under Rule 45 of the Rules of Court,
the respondent court found that Article 2180 was not applicable as the Colegio de San Jose-Recoletos
was not a school of arts and trades but an academic institution of learning. It also held that the students
were not in the custody of the school at the time of the incident as the semester had already ended,
that there was no clear identification of the fatal gun and that in any event the defendant, had exercised
the necessary diligence in preventing the injury. 5

The basic undisputed facts are that Alfredo Amadora went to the San Jose-Recoletos on April 13, 1972,
and while in its auditorium was shot to death by Pablito Daffon, a classmate. On the implications and
consequences of these facts, the parties sharply disagree.

The petitioners contend that their son was in the school to show his physics experiment as a
prerequisite to his graduation; hence, he was then under the custody of the private respondents. The
private respondents submit that Alfredo Amadora had gone to the school only for the purpose of
submitting his physics report and that he was no longer in their custody because the semester had
already ended.

There is also the question of the identity of the gun used which the petitioners consider important
because of an earlier incident which they claim underscores the negligence of the school and at least
one of the private respondents. It is not denied by the respondents that on April 7, 1972, Sergio
Damaso, Jr., the dean of boys, confiscated from Jose Gumban an unlicensed pistol but later returned it
to him without making a report to the principal or taking any further action . 6 As Gumban was one of
the companions of Daffon when the latter fired the gun that killed Alfredo, the petitioners contend that
this was the same pistol that had been confiscated from Gumban and that their son would not have
been killed if it had not been returned by Damaso. The respondents say, however, that there is no proof
that the gun was the same firearm that killed Alfredo.

Resolution of all these disagreements will depend on the interpretation of Article 2180 which, as it
happens, is invoked by both parties in support of their conflicting positions. The pertinent part of this
article reads as follows:

Lastly, teachers or heads of establishments of arts and trades shall be liable for damages caused by their
pupils and students or apprentices so long as they remain in their custody.

Three cases have so far been decided by the Court in connection with the above-quoted provision, to
wit: Exconde v. Capuno 7 Mercado v. Court of Appeals, 8 and Palisoc v. Brillantes. 9 These will be briefly
reviewed in this opinion for a better resolution of the case at bar.

In the Exconde Case, Dante Capuno, a student of the Balintawak Elementary School and a Boy Scout,
attended a Rizal Day parade on instructions of the city school supervisor. After the parade, the boy
boarded a jeep, took over its wheel and drove it so recklessly that it turned turtle, resulting in the death
of two of its passengers. Dante was found guilty of double homicide with reckless imprudence. In the
separate civil action flied against them, his father was held solidarily liable with him in damages under
Article 1903 (now Article 2180) of the Civil Code for the tort committed by the 15-year old boy.

This decision, which was penned by Justice Bautista Angelo on June 29,1957, exculpated the school in an
obiter dictum (as it was not a party to the case) on the ground that it was riot a school of arts and
trades. Justice J.B.L. Reyes, with whom Justices Sabino Padilla and Alex Reyes concurred, dissented,
arguing that it was the school authorities who should be held liable Liability under this rule, he said, was
imposed on (1) teachers in general; and (2) heads of schools of arts and trades in particular. The
modifying clause "of establishments of arts and trades" should apply only to "heads" and not "teachers."

Exconde was reiterated in the Mercado Case, and with an elaboration. A student cut a classmate with a
razor blade during recess time at the Lourdes Catholic School in Quezon City, and the parents of the
victim sued the culprits parents for damages. Through Justice Labrador, the Court declared in another
obiter (as the school itself had also not been sued that the school was not liable because it was not an
establishment of arts and trades. Moreover, the custody requirement had not been proved as this
"contemplates a situation where the student lives and boards with the teacher, such that the control,
direction and influences on the pupil supersede those of the parents." Justice J.B.L. Reyes did not take
part but the other members of the court concurred in this decision promulgated on May 30, 1960.

In Palisoc vs. Brillantes, decided on October 4, 1971, a 16-year old student was killed by a classmate with
fist blows in the laboratory of the Manila Technical Institute. Although the wrongdoer — who was
already of age — was not boarding in the school, the head thereof and the teacher in charge were held
solidarily liable with him. The Court declared through Justice Teehankee:

The phrase used in the cited article — "so long as (the students) remain in their custody" — means the
protective and supervisory custody that the school and its heads and teachers exercise over the pupils
and students for as long as they are at attendance in the school, including recess time. There is nothing
in the law that requires that for such liability to attach, the pupil or student who commits the tortious
act must live and board in the school, as erroneously held by the lower court, and the dicta in Mercado
(as well as in Exconde) on which it relied, must now be deemed to have been set aside by the present
decision.

This decision was concurred in by five other members, 10 including Justice J.B.L. Reyes, who stressed, in
answer to the dissenting opinion, that even students already of age were covered by the provision since
they were equally in the custody of the school and subject to its discipline. Dissenting with three others,
11 Justice Makalintal was for retaining the custody interpretation in Mercado and submitted that the
rule should apply only to torts committed by students not yet of age as the school would be acting only
in loco parentis.

In a footnote, Justice Teehankee said he agreed with Justice Reyes' dissent in the Exconde Case but
added that "since the school involved at bar is a non-academic school, the question as to the
applicability of the cited codal provision to academic institutions will have to await another case wherein
it may properly be raised."

This is the case.

Unlike in Exconde and Mercado, the Colegio de San Jose-Recoletos has been directly impleaded and is
sought to be held liable under Article 2180; and unlike in Palisoc, it is not a school of arts and trades but
an academic institution of learning. The parties herein have also directly raised the question of whether
or not Article 2180 covers even establishments which are technically not schools of arts and trades, and,
if so, when the offending student is supposed to be "in its custody."

After an exhaustive examination of the problem, the Court has come to the conclusion that the
provision in question should apply to all schools, academic as well as non-academic. Where the school is
academic rather than technical or vocational in nature, responsibility for the tort committed by the
student will attach to the teacher in charge of such student, following the first part of the provision. This
is the general rule. In the case of establishments of arts and trades, it is the head thereof, and only he,
who shall be held liable as an exception to the general rule. In other words, teachers in general shall be
liable for the acts of their students except where the school is technical in nature, in which case it is the
head thereof who shall be answerable. Following the canon of reddendo singula singulis "teachers"
should apply to the words "pupils and students" and "heads of establishments of arts and trades" to the
word "apprentices."

The Court thus conforms to the dissenting opinion expressed by Justice J.B.L. Reyes in Exconde where he
said in part:

I can see no sound reason for limiting Art. 1903 of the Old Civil Code to teachers of arts and trades and
not to academic ones. What substantial difference is there between them insofar as concerns the
proper supervision and vice over their pupils? It cannot be seriously contended that an academic
teacher is exempt from the duty of watching that his pupils do not commit a tort to the detriment of
third Persons, so long as they are in a position to exercise authority and Supervision over the pupil. In
my opinion, in the phrase "teachers or heads of establishments of arts and trades" used in Art. 1903 of
the old Civil Code, the words "arts and trades" does not qualify "teachers" but only "heads of
establishments." The phrase is only an updated version of the equivalent terms "preceptores y
artesanos" used in the Italian and French Civil Codes.

If, as conceded by all commentators, the basis of the presumption of negligence of Art. 1903 in some
culpa in vigilando that the parents, teachers, etc. are supposed to have incurred in the exercise of their
authority, it would seem clear that where the parent places the child under the effective authority of the
teacher, the latter, and not the parent, should be the one answerable for the torts committed while
under his custody, for the very reason/that the parent is not supposed to interfere with the discipline of
the school nor with the authority and supervision of the teacher while the child is under instruction. And
if there is no authority, there can be no responsibility.
There is really no substantial distinction between the academic and the non-academic schools insofar as
torts committed by their students are concerned. The same vigilance is expected from the teacher over
the students under his control and supervision, whatever the nature of the school where he is teaching.
The suggestion in the Exconde and Mercado Cases is that the provision would make the teacher or even
the head of the school of arts and trades liable for an injury caused by any student in its custody but if
that same tort were committed in an academic school, no liability would attach to the teacher or the
school head. All other circumstances being the same, the teacher or the head of the academic school
would be absolved whereas the teacher and the head of the non-academic school would be held liable,
and simply because the latter is a school of arts and trades.

The Court cannot see why different degrees of vigilance should be exercised by the school authorities on
the basis only of the nature of their respective schools. There does not seem to be any plausible reason
for relaxing that vigilance simply because the school is academic in nature and for increasing such
vigilance where the school is non-academic. Notably, the injury subject of liability is caused by the
student and not by the school itself nor is it a result of the operations of the school or its equipment.
The injury contemplated may be caused by any student regardless of the school where he is registered.
The teacher certainly should not be able to excuse himself by simply showing that he is teaching in an
academic school where, on the other hand, the head would be held liable if the school were non-
academic.

These questions, though, may be asked: If the teacher of the academic school is to be held answerable
for the torts committed by his students, why is it the head of the school only who is held liable where
the injury is caused in a school of arts and trades? And in the case of the academic or non- technical
school, why not apply the rule also to the head thereof instead of imposing the liability only on the
teacher?

The reason for the disparity can be traced to the fact that historically the head of the school of arts and
trades exercised a closer tutelage over his pupils than the head of the academic school. The old schools
of arts and trades were engaged in the training of artisans apprenticed to their master who personally
and directly instructed them on the technique and secrets of their craft. The head of the school of arts
and trades was such a master and so was personally involved in the task of teaching his students, who
usually even boarded with him and so came under his constant control, supervision and influence. By
contrast, the head of the academic school was not as involved with his students and exercised only
administrative duties over the teachers who were the persons directly dealing with the students. The
head of the academic school had then (as now) only a vicarious relationship with the students.
Consequently, while he could not be directly faulted for the acts of the students, the head of the school
of arts and trades, because of his closer ties with them, could be so blamed.
It is conceded that the distinction no longer obtains at present in view of the expansion of the schools of
arts and trades, the consequent increase in their enrollment, and the corresponding diminution of the
direct and personal contract of their heads with the students. Article 2180, however, remains
unchanged. In its present state, the provision must be interpreted by the Court according to its clear and
original mandate until the legislature, taking into account the charges in the situation subject to be
regulated, sees fit to enact the necessary amendment.

The other matter to be resolved is the duration of the responsibility of the teacher or the head of the
school of arts and trades over the students. Is such responsibility co-extensive with the period when the
student is actually undergoing studies during the school term, as contended by the respondents and
impliedly admitted by the petitioners themselves?

From a reading of the provision under examination, it is clear that while the custody requirement, to
repeat Palisoc v. Brillantes, does not mean that the student must be boarding with the school
authorities, it does signify that the student should be within the control and under the influence of the
school authorities at the time of the occurrence of the injury. This does not necessarily mean that such,
custody be co-terminous with the semester, beginning with the start of classes and ending upon the
close thereof, and excluding the time before or after such period, such as the period of registration, and
in the case of graduating students, the period before the commencement exercises. In the view of the
Court, the student is in the custody of the school authorities as long as he is under the control and
influence of the school and within its premises, whether the semester has not yet begun or has already
ended.

It is too tenuous to argue that the student comes under the discipline of the school only upon the start
of classes notwithstanding that before that day he has already registered and thus placed himself under
its rules. Neither should such discipline be deemed ended upon the last day of classes notwithstanding
that there may still be certain requisites to be satisfied for completion of the course, such as submission
of reports, term papers, clearances and the like. During such periods, the student is still subject to the
disciplinary authority of the school and cannot consider himself released altogether from observance of
its rules.

As long as it can be shown that the student is in the school premises in pursuance of a legitimate
student objective, in the exercise of a legitimate student right, and even in the enjoyment of a legitimate
student right, and even in the enjoyment of a legitimate student privilege, the responsibility of the
school authorities over the student continues. Indeed, even if the student should be doing nothing more
than relaxing in the campus in the company of his classmates and friends and enjoying the ambience
and atmosphere of the school, he is still within the custody and subject to the discipline of the school
authorities under the provisions of Article 2180.

During all these occasions, it is obviously the teacher-in-charge who must answer for his students' torts,
in practically the same way that the parents are responsible for the child when he is in their custody. The
teacher-in-charge is the one designated by the dean, principal, or other administrative superior to
exercise supervision over the pupils in the specific classes or sections to which they are assigned. It is
not necessary that at the time of the injury, the teacher be physically present and in a position to
prevent it. Custody does not connote immediate and actual physical control but refers more to the
influence exerted on the child and the discipline instilled in him as a result of such influence. Thus, for
the injuries caused by the student, the teacher and not the parent shag be held responsible if the tort
was committed within the premises of the school at any time when its authority could be validly
exercised over him.

In any event, it should be noted that the liability imposed by this article is supposed to fall directly on
the teacher or the head of the school of arts and trades and not on the school itself. If at all, the school,
whatever its nature, may be held to answer for the acts of its teachers or even of the head thereof
under the general principle of respondeat superior, but then it may exculpate itself from liability by
proof that it had exercised the diligence of a bonus paterfamilias.

Such defense is, of course, also available to the teacher or the head of the school of arts and trades
directly held to answer for the tort committed by the student. As long as the defendant can show that
he had taken the necessary precautions to prevent the injury complained of, he can exonerate himself
from the liability imposed by Article 2180, which also states that:

The responsibility treated of in this article shall cease when the Persons herein mentioned prove that
they observed all the diligence of a good father of a family to prevent damages.

In this connection, it should be observed that the teacher will be held liable not only when he is acting in
loco parentis for the law does not require that the offending student be of minority age. Unlike the
parent, who wig be liable only if his child is still a minor, the teacher is held answerable by the law for
the act of the student under him regardless of the student's age. Thus, in the Palisoc Case, liability
attached to the teacher and the head of the technical school although the wrongdoer was already of
age. In this sense, Article 2180 treats the parent more favorably than the teacher.
The Court is not unmindful of the apprehensions expressed by Justice Makalintal in his dissenting
opinion in Palisoc that the school may be unduly exposed to liability under this article in view of the
increasing activism among the students that is likely to cause violence and resulting injuries in the school
premises. That is a valid fear, to be sure. Nevertheless, it should be repeated that, under the present
ruling, it is not the school that will be held directly liable. Moreover, the defense of due diligence is
available to it in case it is sought to be held answerable as principal for the acts or omission of its head
or the teacher in its employ.

The school can show that it exercised proper measures in selecting the head or its teachers and the
appropriate supervision over them in the custody and instruction of the pupils pursuant to its rules and
regulations for the maintenance of discipline among them. In almost all cases now, in fact, these
measures are effected through the assistance of an adequate security force to help the teacher
physically enforce those rules upon the students. Ms should bolster the claim of the school that it has
taken adequate steps to prevent any injury that may be committed by its students.

A fortiori, the teacher himself may invoke this defense as it would otherwise be unfair to hold him
directly answerable for the damage caused by his students as long as they are in the school premises
and presumably under his influence. In this respect, the Court is disposed not to expect from the teacher
the same measure of responsibility imposed on the parent for their influence over the child is not equal
in degree. Obviously, the parent can expect more obedience from the child because the latter's
dependence on him is greater than on the teacher. It need not be stressed that such dependence
includes the child's support and sustenance whereas submission to the teacher's influence, besides
being coterminous with the period of custody is usually enforced only because of the students' desire to
pass the course. The parent can instill more las discipline on the child than the teacher and so should be
held to a greater accountability than the teacher for the tort committed by the child.

And if it is also considered that under the article in question, the teacher or the head of the school of
arts and trades is responsible for the damage caused by the student or apprentice even if he is already
of age — and therefore less tractable than the minor — then there should all the more be justification
to require from the school authorities less accountability as long as they can prove reasonable diligence
in preventing the injury. After all, if the parent himself is no longer liable for the student's acts because
he has reached majority age and so is no longer under the former's control, there is then all the more
reason for leniency in assessing the teacher's responsibility for the acts of the student.

Applying the foregoing considerations, the Court has arrived at the following conclusions:
1. At the time Alfredo Amadora was fatally shot, he was still in the custody of the authorities of
Colegio de San Jose-Recoletos notwithstanding that the fourth year classes had formally ended. It was
immaterial if he was in the school auditorium to finish his physics experiment or merely to submit his
physics report for what is important is that he was there for a legitimate purpose. As previously
observed, even the mere savoring of the company of his friends in the premises of the school is a
legitimate purpose that would have also brought him in the custody of the school authorities.

2. The rector, the high school principal and the dean of boys cannot be held liable because none of
them was the teacher-in-charge as previously defined. Each of them was exercising only a general
authority over the student body and not the direct control and influence exerted by the teacher placed
in charge of particular classes or sections and thus immediately involved in its discipline. The evidence of
the parties does not disclose who the teacher-in-charge of the offending student was. The mere fact
that Alfredo Amadora had gone to school that day in connection with his physics report did not
necessarily make the physics teacher, respondent Celestino Dicon, the teacher-in-charge of Alfredo's
killer.

3. At any rate, assuming that he was the teacher-in-charge, there is no showing that Dicon was
negligent in enforcing discipline upon Daffon or that he had waived observance of the rules and
regulations of the school or condoned their non-observance. His absence when the tragedy happened
cannot be considered against him because he was not supposed or required to report to school on that
day. And while it is true that the offending student was still in the custody of the teacher-in-charge even
if the latter was physically absent when the tort was committed, it has not been established that it was
caused by his laxness in enforcing discipline upon the student. On the contrary, the private respondents
have proved that they had exercised due diligence, through the enforcement of the school regulations,
in maintaining that discipline.

4. In the absence of a teacher-in-charge, it is probably the dean of boys who should be held liable
especially in view of the unrefuted evidence that he had earlier confiscated an unlicensed gun from one
of the students and returned the same later to him without taking disciplinary action or reporting the
matter to higher authorities. While this was clearly negligence on his part, for which he deserves
sanctions from the school, it does not necessarily link him to the shooting of Amador as it has not been
shown that he confiscated and returned pistol was the gun that killed the petitioners' son.

5. Finally, as previously observed, the Colegio de San Jose-Recoletos cannot be held directly liable
under the article because only the teacher or the head of the school of arts and trades is made
responsible for the damage caused by the student or apprentice. Neither can it be held to answer for
the tort committed by any of the other private respondents for none of them has been found to have
been charged with the custody of the offending student or has been remiss in the discharge of his duties
in connection with such custody.

In sum, the Court finds under the facts as disclosed by the record and in the light of the principles herein
announced that none of the respondents is liable for the injury inflicted by Pablito Damon on Alfredo
Amadora that resulted in the latter's death at the auditorium of the Colegio de San Jose-Recoletos on
April 13, 1972. While we deeply sympathize with the petitioners over the loss of their son under the
tragic circumstances here related, we nevertheless are unable to extend them the material relief they
seek, as a balm to their grief, under the law they have invoked.

WHEREFORE, the petition is DENIED, without any pronouncement as to costs. It is so ordered.

Yap, Narvasa, Paras, Feliciano, Gancayco, Bidin, Sarmiento, Cortes and Griño-Aquino, JJ., concur.

Fernan, Padilla and Teehankee, C.J., JJ, took no part.

Separate Opinions

MELENCIO-HERRERA, J., concurring and dissenting:

I concur, except with respect to the restricted meaning given the term "teacher" in Article 2180 of the
Civil Code as "teacher-in-charge." This would limit liability to occasions where there are classes under
the immediate charge of a teacher, which does not seem to be the intendment of the law.

As I understand it, the philosophy of the law is that whoever stands in loco parentis will have the same
duties and obligations as parents whenever in such a standing. Those persons are mandatorily held
liable for the tortious acts of pupils and students so long as the latter remain in their custody, meaning
their protective and supervisory custody.
Thus Article 349 of the Civil Code enumerates the persons who stand in loco parentis and thereby
exercise substitute parental authority:

Art. 349The following persons shall exercise substitute parental authority:

xxx xxx xxx

2) Teachers and professors

xxx xxx xxx

4) Directors of trade establishments, with regard to apprentices;'

Article 352 of the Civil Code further provides:

Art. 362. The relations between teacher and pupil, professor and student, are fixed by
government regulations and those of each school or institution....

But even such rules and regulations as may be fixed can not contravene the concept of substitute
parental authority.

The rationale of liability of school heads and teachers for the tortious acts of their pupils was explained
in Palisoc vs. Brillantes (41 SCRA 548), thus:

The protective custody of the school heads and teachers is mandatorily substituted for that of the
parents, and hence, it becomes their obligation as well as that of the school itself to provide proper
supervision of the students' activities during the whole time that they are at attendance in the school,
including recess time, as well as to take the necessary precautions to protect the students in their
custody from dangers and hazards that would reasonably be anticipated, including injuries that some
students themselves may inflict wilfully or through negligence on their fellow students. (Emphasis
supplied)

Of course, as provided for in the same Article 2180, the responsibility treated of shall cease when the
persons mentioned prove that they observed all the diligence of a good father of a family to prevent
damage.

And while a school is, admittedly, not directly liable since Article 2180 speaks only of teachers and
schools heads, yet, by virtue of the same provision, the school, as their employer, may be held liable for
the failure of its teachers or school heads to perform their mandatory legal duties as substitute parents
(Sangco, Philippine Law on Torts & Damages, 1978 ed., p. 201). Again, the school may exculpate itself
from liability by proving that it had exercised the diligence of a good father of the family.

Art. 2180. x x x

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.

xxx xxx xxx

Parenthetically, from the enumeration in Article 349 of the Civil Code, supra, it is apparent that the Code
Commission had already segregated the classification of "teachers and professors" vis-a-vis their pupils,
from "directors of trade establishments, with regard to their apprentices."

GUTIERREZ, JR., J., concurring:

I concur in the Court's opinion so carefully analyzed and crafted by Justice Isagani A. Cruz. However, I
would like to stress the need for a major amendment to, if not a complete scrapping of, Article 2180 of
the Civil Code insofar as it refers to teachers or heads of establishments of arts and trades in relation to
pupils and students or apprentices. The seventh paragraph of Art. 2180 is a relic of the past and
contemplates a situation long gone and out of date. In a Palisoc v. Brillantes (41 SCRA 548) situation, it is
bound to result in mischief and injustice.

First, we no longer have masters and apprentices toiling in schools of arts and trades. Students in
"technological" colleges and universities are no different from students in liberal arts or professional
schools. Apprentices now work in regular shops and factories and their relationship to the employer is
covered by laws governing the employment relationship and not by laws governing the teacher—
student relationship.

Second, except for kindergarten, elementary, and perhaps early high school students, teachers are often
no longer objects of veneration who are given the respect due to substitute parents. Many students in
their late teens or early adult years view some teachers as part of a bourgeois or reactionary group
whose advice on behaviour, deportment, and other non-academic matters is not only resented but
actively rejected. It ,seems most unfair to hold teachers liable on a presumption juris tantum of
negligence for acts of students even under circumstances where strictly speaking there could be no in
loco parentis relationship. Why do teachers have to prove the contrary of negligence to be freed from
solidary liability for the acts f bomb-throwing or pistol packing students who would just as soon hurt
them as they would other members of the so-called-establishment.

The ordinary rules on quasi-delicta should apply to teachers and schools of whatever nature insofar as
grown up students are concerned. The provision of Art. 2180 of the Civil Code involved in this case has
outlived its purpose. The Court cannot make law. It can only apply the law with its imperfections.
However, the Court can suggest that such a law should be amended or repealed.

Separate Opinions

MELENCIO-HERRERA, J., concurring and dissenting:

I concur, except with respect to the restricted meaning given the term "teacher" in Article 2180 of the
Civil Code as "teacher-in-charge." This would limit liability to occasions where there are classes under
the immediate charge of a teacher, which does not seem to be the intendment of the law.

As I understand it, the philosophy of the law is that whoever stands in loco parentis will have the same
duties and obligations as parents whenever in such a standing. Those persons are mandatorily held
liable for the tortious acts of pupils and students so long as the latter remain in their custody, meaning
their protective and supervisory custody.

Thus Article 349 of the Civil Code enumerates the persons who stand in loco parentis and thereby
exercise substitute parental authority:

Art. 349The following persons shall exercise substitute parental authority:

xxx xxx xxx

2) Teachers and professors

xxx xxx xxx

4) Directors of trade establishments, with regard to apprentices;'

Article 352 of the Civil Code further provides:

Art. 362. The relations between teacher and pupil, professor and student, are fixed by
government regulations and those of each school or institution....

But even such rules and regulations as may be fixed can not contravene the concept of substitute
parental authority.
The rationale of liability of school heads and teachers for the tortious acts of their pupils was explained
in Palisoc vs. Brillantes (41 SCRA 548), thus:

The protective custody of the school heads and teachers is mandatorily substituted for that of the
parents, and hence, it becomes their obligation as well as that of the school itself to provide proper
supervision of the students' activities during the whole time that they are at attendance in the school,
including recess time, as well as to take the necessary precautions to protect the students in their
custody from dangers and hazards that would reasonably be anticipated, including injuries that some
students themselves may inflict wilfully or through negligence on their fellow students. (Emphasis
supplied)

Of course, as provided for in the same Article 2180, the responsibility treated of shall cease when the
persons mentioned prove that they observed all the diligence of a good father of a family to prevent
damage.

And while a school is, admittedly, not directly liable since Article 2180 speaks only of teachers and
schools heads, yet, by virtue of the same provision, the school, as their employer, may be held liable for
the failure of its teachers or school heads to perform their mandatory legal duties as substitute parents
(Sangco, Philippine Law on Torts & Damages, 1978 ed., p. 201). Again, the school may exculpate itself
from liability by proving that it had exercised the diligence of a good father of the family.

Art. 2180. x x x

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.

xxx xxx xxx

Parenthetically, from the enumeration in Article 349 of the Civil Code, supra, it is apparent that the Code
Commission had already segregated the classification of "teachers and professors" vis-a-vis their pupils,
from "directors of trade establishments, with regard to their apprentices."

GUTIERREZ, JR., J., concurring:

I concur in the Court's opinion so carefully analyzed and crafted by Justice Isagani A. Cruz. However, I
would like to stress the need for a major amendment to, if not a complete scrapping of, Article 2180 of
the Civil Code insofar as it refers to teachers or heads of establishments of arts and trades in relation to
pupils and students or apprentices. The seventh paragraph of Art. 2180 is a relic of the past and
contemplates a situation long gone and out of date. In a Palisoc v. Brillantes (41 SCRA 548) situation, it is
bound to result in mischief and injustice.

First, we no longer have masters and apprentices toiling in schools of arts and trades. Students in
"technological" colleges and universities are no different from students in liberal arts or professional
schools. Apprentices now work in regular shops and factories and their relationship to the employer is
covered by laws governing the employment relationship and not by laws governing the teacher—
student relationship.

Second, except for kindergarten, elementary, and perhaps early high school students, teachers are often
no longer objects of veneration who are given the respect due to substitute parents. Many students in
their late teens or early adult years view some teachers as part of a bourgeois or reactionary group
whose advice on behaviour, deportment, and other non-academic matters is not only resented but
actively rejected. It ,seems most unfair to hold teachers liable on a presumption juris tantum of
negligence for acts of students even under circumstances where strictly speaking there could be no in
loco parentis relationship. Why do teachers have to prove the contrary of negligence to be freed from
solidary liability for the acts f bomb-throwing or pistol packing students who would just as soon hurt
them as they would other members of the so-called-establishment.

The ordinary rules on quasi-delicta should apply to teachers and schools of whatever nature insofar as
grown up students are concerned. The provision of Art. 2180 of the Civil Code involved in this case has
outlived its purpose. The Court cannot make law. It can only apply the law with its imperfections.
However, the Court can suggest that such a law should be amended or repealed.
SARKIES TOURS PHILIPPINES, INC., Petitioner, v. INTERMEDIATE APPELLATE COURT, ARSENIO S.
DIZON, JR. and VIOLETA R. DIZON, Respondents.

Cruz, Durian, Agabin, Atienza & Alday Law Office for Petitioner.

Romulo, Mabanta, Sayoc & Angeles Law Office for Private Respondents.

SYLLABUS

1. CIVIL LAW; DAMAGES; AWARDS THEREOF; ELIMINATION AND MODIFICATION IN THE CASE AT
BAR. — The award of exemplary damages should be eliminated. There is no showing that SARKIES acted
"in a wanton . . . or malevolent manner" (Art. 2232, Civil Code). As to the award of moral damages, while
they are justly due, under the factual milieu, however, the Supreme Court considers the sum of
P100,000.00 excessive and in the exercise of its discretion, reduces them to P30,000.00.

2. ID.; OBLIGATIONS AND CONTRACTS; EXTRA-CONTRACTUAL OBLIGATIONS; QUASI-DELICTS;

RIGHT OF ACTION FOR REIMBURSEMENT UNDER ARTICLE 2181 OF CIVIL CODE. — Considering that
actual negligence for the drowning of MERCEDITAS was the responsibility of MENDOZA, it is but fair that
SARKIES should have a right of action against MENDOZA for reimbursement. Although Article 2181 of
the Civil Code it not technically invocable, its principle should be applied in favor of SARKIES. The
provision of the Civil Code on common carriers is based on Anglo-American Law (Maranan v. Perez, 20
SCRA 412 [1967]).

RESOLUTION

MELENCIO-HERRERA, J.:
This is a Petition for Review of the Decision of the Intermediate Appellate Court in CA-G.R. No. 64228-R,
to which we gave due course only in so far as the moral and exemplary damages awarded are
concerned. The decretal portion of the judgment reads:jgc:chanrobles.com.ph

"WHEREFORE, premises considered, finding the Court a quo in error in dismissing the complaint against
Sarkies Tours Phils., Inc., the decision insofar as it affects Sarkies Tours Phils., Inc., is set aside and
another one entered sentencing Sarkies Tours Phils., Inc., jointly and solidarily, liable with Julian
Mendoza. Consequently, the appealed decision is hereby modified to read as follows:chanrob1es virtual
1aw library

‘PREMISES CONSIDERED, the plaintiffs having established their cause of action against both Julian
Mendoza and Sarkies Tours Phils., Inc., judgment is hereby rendered condemning Julian Mendoza and
Sarkies Tours Phils., Inc., to pay plaintiffs, jointly and severally:chanrob1es virtual 1aw library

(a) P12,000.00 in actual damages for the death of Merceditas Dizon;

(b) P1,650.00 for loss of cash and personal belongings;

(c) P3,000.00 for funeral expenses;

(d) P100,000.00 for moral damages;

(e) P50,000.00 as exemplary damages;

(f) P5,000.00 as attorney’s fees; and

(g) the costs of suit."cralaw virtua1aw library

SO ORDERED."cralaw virtua1aw library

A few weeks before June 12, 1971, petitioner Sarkies Tours Phils., Inc. (SARKIES, for short) advertised in
the newspapers its tour to Corregidor on Independence Day, for a fee of "P10.00 per person including:
a) boat fare - Manila-Corregidor-Manila b) shrine fee and c) tour of Corregidor Island by bus." A day
before the scheduled tour, private respondent spouses (the DIZONS, for short), purchased six round-trip
tickets from SARKIES. They were issued an official receipt under the SARKIES letterhead. Also issued by
SARKIES for each set of tickets were one (1) blue ticket and one (1) white ticket, with the name
"SARKIES" appearing on both the blue and white tickets, while the word "Edisco" was handwritten
across the white ticket. With the DIZONS the next day, June 12, 1971, were their four children Cecilia,
Bernardita, Merceditas and Emerito. From the SARKIES main office at Filipinas Hotel, Roxas Boulevard,
they were transported on a SARKIES bus, together with other excursionists, to Muelle del Banco
Nacional, alongside the Pasig River, where they boarded the M/V Edisco. Upon departure from Manila,
Manila Bay was then rather choppy (Folio, p. 77). The white tickets were collected on board by Julian V.
MENDOZA, while the blue tickets were collected upon boarding the SARKIES bus at Corregidor
Island.chanrobles virtual lawlibrary

The M/V Edisco, owned and operated by MENDOZA, is an oversized motorized banca with outriggers, a
steel hull, a canvas awning and rattan chairs on the deck. It was not registered to ferry passengers, nor
was it licensed to operate as a watercraft. On that trip, it had 146 passengers on board and was
overloaded and lacked adequate lifesaving equipment.

Upon reaching Corregidor, the excursionists went on a guided tour conducted by petitioner’s
representative.

On the return trip to Manila, the weather was practically the same as when they left but with
intermittent rains (Folio, p. 77). Around 2:00 P.M., disaster struck after about thirty minutes of cruising.
The boat leaned towards starboard and the chairs slid into the water in that direction. In a matter of
seconds, the boat capsized. Private respondents and their two children, Bernardita and Emerito,
managed to clamber up the hull of the boat and were rescued by a passing yacht. Another daughter,
Cecilia, was picked up by one of the other watercrafts that came to succor. Private respondents lost cash
and personal belongings. Merceditas, their six-year old daughter was missing and could not be located
even after they reached Manila around 7:00 P.M. of that day. After six days of fruitless and heart-
rending inquiries, private respondents were summoned to Funeraria Quiogue were they identified a
lifeless body as that of their daughter, Merceditas. There were other fatalities.
For damages based on the drowning of MERCEDITAS, the DIZONS filed a complaint against SARKIES and
MENDOZA before the then Court of First Instance of Manila. Answering, SARKIES alleged that it was not
the owner nor charterer of M/V Edisco; that it is only a booking agent and not a carrier; and that it had
acted with due diligence and care in relying on MENDOZA’s representations that his vessel was duly
authorized to operate and was sea-worthy.

MENDOZA denied liability claiming that he was not the registered owner but merely a passenger of the
capsized vessel together with his son who also perished in the tragedy; that the contract of carriage was
between SARKIES and private respondents, and that the marine accident was due to force majeure.
MENDOZA was declared in default for failure to appear during the pre-trial.

After trial on the merits, the Trial Court exonerated SARKIES from liability on the ground that it was
"neither an agent nor the operator of M/V Edisco" ; that it had merely booked private respondents with
M/V Edisco, one of the three private carriers, in addition to a Philippine Navy boat, plying the route from
Manila to Corregidor, and attributed sole responsibility to MENDOZA, whom it found to be the owner-
operator of M/V Edisco, for negligence consisting of "unscrupulous conversion of a fishing boat into a
ferry boat without first securing a license to operate as such."cralaw virtua1aw library

On appeal to the then Court of Appeals, the Appellate Tribunal reversed and held both SARKIES and
MENDOZA jointly and severally liable for the damages for the reason that the relationship between
SARKIES and the excursionists was "a single operation . . . which in effect guaranteed them safe passage
all throughout" (Rollo, p. 98).chanrobles.com:cralaw:red

We concur with the view. The issue, we had resolved to consider, as earlier mentioned, is in respect of
the award of moral and exemplary damages.

The award of exemplary damages should be eliminated. In Munsayac v. De Lara, 23 SCRA 1086, 1089
(1968), it was said:jgc:chanrobles.com.ph

"It is not enough to say that an example should be made, or corrective measures be employed, for the
public good especially in accident cases where public carriers are involved. The causative negligence in
such cases is personal to the employees actually in charge of the vehicles, and it is they who should be
made to pay this kind of damages by way of example or correction, unless by the demonstrative
tolerance or approval of the owners they themselves can be held at fault and their fault is of the
character described in article 2232 of the Civil Code."cralaw virtua1aw library

In the case at bar, there is no showing that SARKIES acted "in a wanton . . . or malevolent manner" (Art.
2232, Civil Code).

As to the award of moral damages, while we find them justly due, under the factual milieu, however, we
consider the sum of P100,000.00 excessive and in the exercise of our discretion, hereby reduce them to
P30,000.00.

In its Answer to the Complaint of the DIZONS, SARKIES included a cross-claim against MENDOZA as the
owner/operator of the EDISCO. Considering that actual negligence for the drowning of MERCEDITAS was
the responsibility of MENDOZA, it is but fair that SARKIES should have a right of action against
MENDOZA for reimbursement. Although Article 2181 of the Civil Code is not technically invocable, its
principle should be applied in favor of SARKIES. The provision of the Civil Code on common carriers is
based on Anglo-American Law (Maranan v. Perez, 20 SCRA 412 [1967]). In regards to Grand Trunk R. Co.
v. Latham, 63 Me. 177, the following was said:jgc:chanrobles.com.ph

"Where a railroad company had been compelled to pay a judgment for damages for injuries sustained
by a passenger as a result of the maltreatment and misconduct of the conductor . . . the Court (held)
that the servant was liable to his master for all loss and damage sustained by it." (110 A.L.R. 836).

ACCORDINGLY, the judgment of the then Court of Appeals (now Intermediate Appellate Court) in its CA-
G.R. No. 64228-R, in respect of petitioner, is modified by (1) eliminating exemplary damages therefrom;
(2) reducing the adjudged moral damages from P100,000.00 to P30,000.00; and (3) ordering Julian V.
Mendoza to pay and/or reimburse petitioner any and all expenses and damages to be paid by petitioner
to the private respondents. The other parts of the judgment are confirmed. The judgment of the Trial
Court in respect of Julian V. Mendoza, is maintained.

No pronouncement as to costs.

SO ORDERED.