Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-48006

July 8, 1942

FAUSTO BARREDO, petitioner,

vs.
SEVERINO GARCIA and TIMOTEA ALMARIO, respondents.
Celedonio P. Gloria and Antonio Barredo for petitioner.
Jose G. Advincula for respondents.
BOCOBO, J.:
This case comes up from the Court of Appeals which held the
petitioner herein, Fausto Barredo, liable in damages for the death
of Faustino Garcia caused by the negligence of Pedro Fontanilla, a
taxi driver employed by said Fausto Barredo.
At about half past one in the morning of May 3, 1936, on the road
between Malabon and Navotas, Province of Rizal, there was a
head-on collision between a taxi of the Malate Taxicab driven by
Pedro Fontanilla and a carretela guided by Pedro Dimapalis. The
carretela was overturned, and one of its passengers, 16-year-old
boy Faustino Garcia, suffered injuries from which he died two days
later. A criminal action was filed against Fontanilla in the Court of
First Instance of Rizal, and he was convicted and sentenced to an
indeterminate sentence of one year and one day to two years
of prision correccional. The court in the criminal case granted the
petition that the right to bring a separate civil action be reserved.
The Court of Appeals affirmed the sentence of the lower court in
the criminal case. Severino Garcia and Timotea Almario, parents of
the deceased on March 7, 1939, brought an action in the Court of
First Instance of Manila against Fausto Barredo as the sole
proprietor of the Malate Taxicab and employer of Pedro Fontanilla.
On July 8, 1939, the Court of First Instance of Manila awarded
damages in favor of the plaintiffs for P2,000 plus legal interest
from the date of the complaint. This decision was modified by the
Court of Appeals by reducing the damages to P1,000 with legal
interest from the time the action was instituted. It is undisputed

that Fontanilla 's negligence was the cause of the mishap, as he

was driving on the wrong side of the road, and at high speed. As
to Barredo's responsibility, the Court of Appeals found:
... It is admitted that defendant is Fontanilla's employer.
There is proof that he exercised the diligence of a good
father of a family to prevent damage. (See p. 22,
appellant's brief.) In fact it is shown he was careless in
employing Fontanilla who had been caught several times
for violation of the Automobile Law and speeding (Exhibit
A) violation which appeared in the records of the
Bureau of Public Works available to be public and to
himself. Therefore, he must indemnify plaintiffs under the
provisions of article 1903 of the Civil Code.
The main theory of the defense is that the liability of Fausto
Barredo is governed by the Revised Penal Code; hence, his
liability is only subsidiary, and as there has been no civil action
against Pedro Fontanilla, the person criminally liable, Barredo
cannot be held responsible in the case. The petitioner's brief
states on page 10:
... The Court of Appeals holds that the petitioner is being
sued for his failure to exercise all the diligence of a good
father of a family in the selection and supervision of
Pedro Fontanilla to prevent damages suffered by the
respondents. In other words, The Court of Appeals insists
on applying in the case article 1903 of the Civil Code.
Article 1903 of the Civil Code is found in Chapter II, Title
16, Book IV of the Civil Code. This fact makes said article
to a civil liability arising from a crime as in the case at
bar simply because Chapter II of Title 16 of Book IV of the
Civil Code, in the precise words of article 1903 of the
Civil Code itself, is applicable only to "those (obligations)
arising from wrongful or negligent acts or commission
not punishable by law.
The gist of the decision of the Court of Appeals is expressed
thus:
... We cannot agree to the defendant's contention. The
liability sought to be imposed upon him in this action is

not a civil obligation arising from a felony or a misdemeanor

(the crime of Pedro Fontanilla,), but an obligation imposed
in article 1903 of the Civil Code by reason of his negligence
in the selection or supervision of his servant or employee.
The pivotal question in this case is whether the plaintiffs may bring
this separate civil action against Fausto Barredo, thus making him
primarily and directly, responsible under article 1903 of the Civil
Code as an employer of Pedro Fontanilla. The defendant maintains
that Fontanilla's negligence being punishable by the Penal Code,
his (defendant's) liability as an employer is only subsidiary,
according to said Penal code, but Fontanilla has not been sued in a
civil action and his property has not been exhausted. To decide the
main issue, we must cut through the tangle that has, in the minds
of many confused and jumbled together delitos and cuasi delitos,
or crimes under the Penal Code and fault or negligence under
articles 1902-1910 of the Civil Code. This should be done, because
justice may be lost in a labyrinth, unless principles and remedies
are distinctly envisaged. Fortunately, we are aided in our inquiry by
the luminous presentation of the perplexing subject by renown
jurists and we are likewise guided by the decisions of this Court in
previous cases as well as by the solemn clarity of the consideration
in several sentences of the Supreme Tribunal of Spain.
Authorities support the proposition that a quasi-delict or "culpa
aquiliana " is a separate legal institution under the Civil Code with
a substantivity all its own, and individuality that is entirely apart
and independent from delict or crime. Upon this principle and on
the wording and spirit article 1903 of the Civil Code, the primary
and direct responsibility of employers may be safely anchored.
The pertinent provisions of the Civil Code and Revised Penal Code
are as follows:
CIVIL CODE
ART. 1089 Obligations arise from law, from contracts and
quasi-contracts, and from acts and omissions which are
unlawful or in which any kind of fault or negligence
intervenes.
xxx

xxx

xxx

ART. 1092. Civil obligations arising from felonies or

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

xxx

xxx

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

damage to another by his fault or negligence shall be
liable for the damage so done.
ART. 1903. The obligation imposed by the next preceding
article is enforcible, not only for personal acts and
omissions, but also for those of persons for whom
another is responsible.
The father and in, case of his death or incapacity, the
mother, are liable for any damages caused by the minor
children who live with them.
Guardians are liable for damages done by minors or
incapacitated persons subject to their authority and
living with them.
Owners or directors of an establishment or business are
equally liable for any damages caused by their
employees while engaged in the branch of the service in
which employed, or on occasion of the performance of
their duties.
The State is subject to the same liability when it acts
through a special agent, but not if the damage shall have
been caused by the official upon whom properly
devolved the duty of doing the act performed, in which
case the provisions of the next preceding article shall be
applicable.
Finally, teachers or directors of arts trades are liable for
any damages caused by their pupils or apprentices while
they are under their custody.

The liability imposed by this article shall cease in case the

persons mentioned therein prove that they are exercised all
the diligence of a good father of a family to prevent the
damage.
ART. 1904. Any person who pays for damage caused by his
employees may recover from the latter what he may have
paid.
REVISED PENAL CODE
ART. 100. Civil liability of a person guilty of felony. Every
person criminally liable for a felony is also civilly liable.
ART. 101. Rules regarding civil liability in certain cases.
The exemption from criminal liability established in
subdivisions 1, 2, 3, 5, and 6 of article 12 and in subdivision
4 of article 11 of this Code does not include exemption from
civil liability, which shall be enforced to the following rules:
First. In cases of subdivision, 1, 2 and 3 of article 12 the civil
liability for acts committed by any imbecile or insane
person, and by a person under nine years of age, or by one
over nine but under fifteen years of age, who has acted
without discernment shall devolve upon those having such
person under their legal authority or control, unless it
appears that there was no fault or negligence on their part.
Should there be no person having such insane, imbecile or
minor under his authority, legal guardianship, or control, or
if such person be insolvent, said insane, imbecile, or minor
shall respond with their own property, excepting property
exempt from execution, in accordance with the civil law.
Second. In cases falling within subdivision 4 of article 11,
the person for whose benefit the harm has been prevented
shall be civilly liable in proportion to the benefit which they
may have received.
The courts shall determine, in their sound discretion,
proportionate amount for which each one shall be liable.

the

When the respective shares can not be equitably determined, even

approximately, or when the liability also attaches to the

Government, or to the majority of the inhabitants of the town,

and, in all events, whenever the damage has been caused with
the consent of the authorities or their agents, indemnification
shall be made in the manner prescribed by special laws or
regulations.
Third. In cases falling within subdivisions 5 and 6 of article 12,
the persons using violence or causing the fear shall be primarily
liable and secondarily, or, if there be no such persons, those
doing the act shall be liable, saving always to the latter that
part of their property exempt from execution.
ART. 102. Subsidiary civil liability of innkeepers, tavern
keepers and proprietors of establishment. In default of
persons criminally liable, innkeepers, tavern keepers,
and any other persons or corporation shall be civilly
liable for crimes committed in their establishments, in all
cases where a violation of municipal ordinances or some
general or special police regulation shall have been
committed by them or their employees.
Innkeepers are also subsidiarily liable for the restitution
of goods taken by robbery or theft within their houses
lodging therein, or the person, or for the payment of the
value thereof, provided that such guests shall have
notified in advance the innkeeper himself, or the person
representing him, of the deposit of such goods within the
inn; and shall furthermore have followed the directions
which such innkeeper or his representative may have
given them with respect to the care of and vigilance over
such goods. No liability shall attach in case of robbery
with violence against or intimidation against or
intimidation of persons unless committed by the
innkeeper's employees.
ART. 103. Subsidiary civil liability of other persons. The
subsidiary liability established in the next preceding
article shall also apply to employers, teachers, persons,
and corporations engaged in any kind of industry for
felonies committed by their servants, pupils, workmen,
apprentices, or employees in the discharge of their
duties.

xxx

xxx

xxx

ART. 365. Imprudence and negligence. Any person who,

by reckless imprudence, shall commit any act which, had it
been intentional, would constitute a grave felony, shall
suffer the penalty of arresto mayor in its maximum period
to prision correccional in its minimum period; if it would
have constituted a less grave felony, the penalty of arresto
mayor in its minimum and medium periods shall be
imposed.
Any person who, by simple imprudence or negligence, shall
commit an act which would otherwise constitute a grave
felony, shall suffer the penalty of arresto mayor in its
medium and maximum periods; if it would have constituted
a less serious felony, the penalty of arresto mayor in its
minimum period shall be imposed."
It will thus be seen that while the terms of articles 1902 of the Civil
Code seem to be broad enough to cover the driver's negligence in
the instant case, nevertheless article 1093 limits cuasi-delitos to
acts or omissions "not punishable by law." But inasmuch as article
365 of the Revised Penal Code punishes not only reckless but even
simple imprudence or negligence, the fault or negligence under
article 1902 of the Civil Code has apparently been crowded out. It
is this overlapping that makes the "confusion worse confounded."
However, a closer study shows that such a concurrence of scope in
regard to negligent acts does not destroy the distinction between
the civil liability arising from a crime and the responsibility for
cuasi-delitos or culpa extra-contractual. The same negligent act
causing damages may produce civil liability arising from a crime
under article 100 of the Revised Penal Code, or create an action
for cuasi-delito or culpa extra-contractual under articles 1902-1910
of the Civil Code.
The individuality of cuasi-delito or culpa extra-contractual looms
clear and unmistakable. This legal institution is of ancient lineage,
one of its early ancestors being the Lex Aquilia in the Roman Law.
In fact, in Spanish legal terminology, this responsibility is often
referred to as culpa aquiliana. The Partidas also contributed to the
genealogy of the present fault or negligence under the Civil Code;
for instance, Law 6, Title 15, of Partida 7, says: "Tenudo es de fazer

emienda, porque, como quier que el non fizo a sabiendas en

dao al otro, pero acaescio por su culpa."
The distinctive nature of cuasi-delitos survives in the Civil Code.
According to article 1089, one of the five sources of obligations
is this legal institution of cuasi-delito or culpa extra-contractual:
"los actos . . . en que intervenga cualquier genero de culpa o
negligencia." Then article 1093 provides that this kind of
obligation shall be governed by Chapter II of Title XVI of Book IV,
meaning articles 1902-0910. This portion of the Civil Code is
exclusively devoted to the legal institution of culpa aquiliana.
Some of the differences between crimes under the Penal Code
and the culpa aquiliana or cuasi-delito under the Civil Code are:
1. That crimes affect the public interest, while cuasi-delitos are
only of private concern.
2. That, consequently, the Penal Code punishes or corrects the
criminal act, while the Civil Code, by means of indemnification,
merely repairs the damage.
3. That delicts are not as broad as quasi-delicts, because the
former are punished only if there is a penal law clearly covering
them, while the latter, cuasi-delitos, include all acts in which
"any king of fault or negligence intervenes." However, it should
be noted that not all violations of the penal law produce civil
responsibility, such as begging in contravention of ordinances,
violation of the game laws, infraction of the rules of traffic when
nobody is hurt. (See Colin and Capitant, "Curso Elemental de
Derecho Civil," Vol. 3, p. 728.)
Let us now ascertain what some jurists say on the separate
existence of quasi-delicts and the employer's primary and direct
liability under article 1903 of the Civil Code.
Dorado Montero in his essay on "Responsibilidad" in the
"Enciclopedia Juridica Espaola" (Vol. XXVII, p. 414) says:
El concepto juridico de la responsabilidad civil abarca
diversos aspectos y comprende a diferentes personas.
Asi, existe una responsabilidad civil propiamente dicha,
que en ningun casl lleva aparejada responsabilidad

criminal alguna, y otra que es consecuencia indeclinable de

la penal que nace de todo delito o falta."
The juridical concept of civil responsibility has various
aspects and comprises different persons. Thus, there is a
civil responsibility, properly speaking, which in no case
carries with it any criminal responsibility, and another which
is a necessary consequence of the penal liability as a result
of every felony or misdemeanor."
Maura, an outstanding authority, was consulted on the following
case: There had been a collision between two trains belonging
respectively to the Ferrocarril Cantabrico and the Ferrocarril del
Norte. An employee of the latter had been prosecuted in a criminal
case, in which the company had been made a party as subsidiarily
responsible in civil damages. The employee had been acquitted in
the criminal case, and the employer, the Ferrocarril del Norte, had
also been exonerated. The question asked was whether the
Ferrocarril Cantabrico could still bring a civil action for damages
against the Ferrocarril del Norte. Maura's opinion was in the
affirmative, stating in part (Maura, Dictamenes, Vol. 6, pp. 511513):
Quedando las cosas asi, a proposito de la realidad pura y
neta de los hechos, todavia menos parece sostenible que
exista cosa juzgada acerca de la obligacion civil de
indemnizar los quebrantos y menoscabos inferidos por el
choque de los trenes. El titulo en que se funda la accion
para demandar el resarcimiento, no puede confundirse con
las responsabilidades civiles nacidas de delito, siquiera
exista en este, sea el cual sea, una culpa rodeada de notas
agravatorias que motivan sanciones penales, mas o menos
severas. La lesion causada por delito o falta en los derechos
civiles,
requiere
restituciones,
reparaciones
o
indemnizaciones, que cual la pena misma ataen al orden
publico; por tal motivo vienen encomendadas, de ordinario,
al Ministerio Fiscal; y claro es que si por esta via se
enmiendan los quebrantos y menoscabos, el agraviado
excusa procurar el ya conseguido desagravio; pero esta
eventual coincidencia de los efectos, no borra la diversidad
originaria de las acciones civiles para pedir indemnizacion.

Estas, para el caso actual (prescindiendo de

culpas contractuales, que no vendrian a cuento y que
tiene otro regimen), dimanan, segun el articulo 1902 del
Codigo Civil, de toda accion u omision, causante de
daos o perjuicios, en que intervenga culpa o
negligencia. Es trivial que acciones semejantes son
ejercitadas ante los Tribunales de lo civil cotidianamente,
sin que la Justicia punitiva tenga que mezclarse en los
asuntos. Los articulos 18 al 21 y 121 al 128 del Codigo
Penal, atentos al espiritu y a los fines sociales y politicos
del mismo, desenvuelven y ordenan la materia de
responsabilidades civiles nacidas de delito, en terminos
separados del regimen por ley comun de la culpa que se
denomina aquiliana, por alusion a precedentes
legislativos del Corpus Juris. Seria intempestivo un
paralelo entre aquellas ordenaciones, y la de la
obligacion de indemnizar a titulo de culpa civil; pero
viene al caso y es necesaria una de las diferenciaciones
que en el tal paralelo se notarian.
Los articulos 20 y 21 del Codigo Penal, despues de
distribuir a su modo las responsabilidades civiles, entre
los que sean por diversos conceptos culpables del delito
o falta, las hacen extensivas a las empresas y los
establecimientos al servicio de los cuales estan los
delincuentes; pero con caracter subsidiario, o sea, segun
el texto literal, en defecto de los que sean responsables
criminalmente. No coincide en ello el Codigo Civil, cuyo
articulo 1903, dice; La obligacion que impone el articulo
anterior es exigible, no solo por los actos y omisiones
propios, sino por los de aquellas personas de quienes se
debe responder; personas en la enumeracion de las
cuales figuran los dependientes y empleados de los
establecimientos o empresas, sea por actos del servicio,
sea con ocasion de sus funciones. Por esto acontece, y
se observa en la jurisprudencia, que las empresas,
despues de intervenir en las causas criminales con el
caracter subsidiario de su responsabilidad civil por razon
del delito, son demandadas y condenadas directa y

aisladamente, cuando se trata de la obligacion, ante los

tribunales civiles.

effects does not eliminate the peculiar nature of civil

actions to ask for indemnity.

Siendo como se ve, diverso el titulo de esta obligacion, y

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

Such civil actions in the present case (without referring

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

As things are, apropos of the reality pure and simple of the

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

Articles 20 and 21 of the Penal Code, after distriburing in

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

responsibility by reason of the crime, are sued and

sentenced directly and separately with
regard
to
the obligation, before the civil courts.
Seeing that the title of this obligation is different, and the
separation between punitive justice and the civil courts
being a true postulate of our judicial system, so that they
have different fundamental norms in different codes, as well
as different modes of procedure, and inasmuch as the
Compaa del Ferrocarril Cantabrico has abstained from
taking part in the criminal case and has reserved the right
to exercise its actions, it seems undeniable that the action
for indemnification for the losses and damages caused to it
by the collision was not sub judice before the Tribunal del
Jurado, nor was it the subject of a sentence, but it remained
intact when the decision of March 21 was rendered. Even if
the verdict had not been that of acquittal, it has already
been shown that such action had been legitimately
reserved till after the criminal prosecution; but because of
the declaration of the non-existence of the felony and the
non-existence of the responsibility arising from the crime,
which was the sole subject matter upon which the Tribunal
del Juradohad jurisdiction, there is greater reason for the
civil obligation ex lege, and it becomes clearer that the
action for its enforcement remain intact and is not res
judicata.
Laurent, a jurist who has written a monumental work on the French
Civil Code, on which the Spanish Civil Code is largely based and
whose provisions on cuasi-delito or culpa extra-contractual are
similar to those of the Spanish Civil Code, says, referring to article
1384 of the French Civil Code which corresponds to article 1903,
Spanish Civil Code:
The action can be brought directly against the person
responsible (for another), without including the author of
the act. The action against the principal is accessory in the
sense that it implies the existence of a prejudicial act
committed by the employee, but it is not subsidiary in the
sense that it can not be instituted till after the judgment
against the author of the act or at least, that it is subsidiary

to the principal action; the action for responsibility (of

the employer) is in itself a principal action. (Laurent,
Principles of French Civil Law, Spanish translation, Vol.
20, pp. 734-735.)
Amandi, in his "Cuestionario del Codigo Civil Reformado" (Vol. 4,
pp. 429, 430), declares that the responsibility of the employer is
principal and not subsidiary. He writes:
Cuestion 1. La responsabilidad declarada en el articulo
1903 por las acciones u omisiones de aquellas personas
por las que se debe responder, es subsidiaria? es
principal? Para contestar a esta pregunta es necesario
saber, en primer lugar, en que se funda el precepto legal.
Es que realmente se impone una responsabilidad por una
falta ajena? Asi parece a primera vista; pero semejante
afirmacion seria contraria a la justicia y a la maxima
universal, segun la que las faltas son personales, y cada
uno responde de aquellas que le son imputables. La
responsabilidad de que tratamos se impone con ocasion
de un delito o culpa, pero no por causa de ellos, sino por
causa del causi delito, esto es, de la imprudencia o de la
negligencia del padre, del tutor, del dueo o director del
establecimiento, del maestro, etc. Cuando cualquiera de
las personas que enumera el articulo citado (menores de
edad, incapacitados, dependientes, aprendices) causan
un dao, la ley presume que el padre, el tutor, el
maestro, etc., han cometido una falta de negligencia
para prevenir o evitar el dao. Esta falta es la que la ley
castiga. No hay, pues, responsabilidad por un hecho
ajeno, sino en la apariencia; en realidad la
responsabilidad se exige por un hecho propio. La idea de
que esa responsabilidad sea subsidiaria es, por lo tanto,
completamente inadmisible.
Question No. 1. Is the responsibility declared in article
1903 for the acts or omissions of those persons for who
one is responsible, subsidiary or principal? In order to
answer this question it is necessary to know, in the first
place, on what the legal provision is based. Is it true that
there is a responsibility for the fault of another person? It

seems so at first sight; but such assertion would be contrary

to justice and to the universal maxim that all faults are
personal, and that everyone is liable for those faults that
can be imputed to him. The responsibility in question is
imposed on the occasion of a crime or fault, but not
because of the same, but because of the cuasi-delito, that is
to say, the imprudence or negligence of the father,
guardian, proprietor or manager of the establishment, of
the teacher, etc. Whenever anyone of the persons
enumerated in the article referred to (minors, incapacitated
persons, employees, apprentices) causes any damage, the
law presumes that the father, guardian, teacher, etc. have
committed an act of negligence in not preventing or
avoiding the damage. It is this fault that is condemned by
the law. It is, therefore, only apparent that there is a
responsibility for the act of another; in reality the
responsibility exacted is for one's own act. The idea that
such responsibility is subsidiary is, therefore, completely
inadmissible.
Oyuelos, in his "Digesto: Principios, Doctrina y Jurisprudencia,
Referentes al Codigo Civil Espaol," says in Vol. VII, p. 743:
Es decir, no responde de hechos ajenos, porque se
responde solo de su propia culpa, doctrina del articulo
1902; mas por excepcion, se responde de la ajena respecto
de aquellas personas con las que media algun nexo o
vinculo, que motiva o razona la responsabilidad. Esta
responsabilidad, es directa o es subsidiaria? En el orden
penal, el Codigo de esta clase distingue entre menores e
incapacitados y los demas, declarando directa la primera
(articulo 19) y subsidiaria la segunda (articulos 20 y 21);
pero en el orden civil, en el caso del articulo 1903, ha de
entenderse directa, por el tenor del articulo que impone la
responsabilidad precisamente "por los actos de aquellas
personas de quienes se deba responder."
That is to say, one is not responsible for the acts of others,
because one is liable only for his own faults, this being the
doctrine of article 1902; but, by exception, one is liable for
the acts of those persons with whom there is a bond or tie

which gives rise to the responsibility. Is this responsibility

direct or subsidiary? In the order of the penal law, the
Penal
Code distinguishes between minors and
incapacitated persons on the one hand, and other
persons on the other, declaring that the responsibility for
the former is direct (article 19), and for the latter,
subsidiary (articles 20 and 21); but in the scheme of the
civil law, in the case of article 1903, the responsibility
should be understood as direct, according to the tenor of
that articles, for precisely it imposes responsibility "for
the acts of those persons for whom one should be
responsible."
Coming now to the sentences of the Supreme Tribunal of Spain,
that court has upheld the principles above set forth: that
a quasi-delict or culpa extra-contractual is a separate and
distinct legal institution, independent from the civil
responsibility arising from criminal liability, and that an
employer is, under article 1903 of the Civil Code, primarily and
directly responsible for the negligent acts of his employee.
One of the most important of those Spanish decisions is that of
October 21, 1910. In that case, Ramon Lafuente died as the
result of having been run over by a street car owned by the
"compaia Electric Madrilea de Traccion." The conductor was
prosecuted in a criminal case but he was acquitted. Thereupon,
the widow filed a civil action against the street car company,
paying for damages in the amount of 15,000 pesetas. The lower
court awarded damages; so the company appealed to the
Supreme Tribunal, alleging violation of articles 1902 and 1903 of
the Civil Code because by final judgment the non-existence of
fault or negligence had been declared. The Supreme Court of
Spain dismissed the appeal, saying:
Considerando que el primer motivo del recurso se funda
en el equivocado supuesto de que el Tribunal a quo, al
condonar a la compaia Electrica Madrilea al pago del
dao causado con la muerte de Ramon La fuente
Izquierdo, desconoce el valor y efectos juridicos de la
sentencia absolutoria deictada en la causa criminal que
se siguio por el mismo hecho, cuando es lo cierto que de

este han conocido las dos jurisdicciones bajo diferentes as

pectos, y como la de lo criminal declrao dentro de los
limites de su competencia que el hecho de que se trata no
era constitutivo de delito por no haber mediado descuido o
negligencia graves, lo que no excluye, siendo este el unico
fundamento del fallo absolutorio, el concurso de la culpa o
negligencia no califacadas, fuente de obligaciones civiles
segun el articulo 1902 del Codigo, y que alcanzan, segun el
1903, netre otras perosnas, a los Directores de
establecimientos o empresas por los daos causados por
sus dependientes en determinadas condiciones, es
manifesto que la de lo civil, al conocer del mismo hehco
baho este ultimo aspecto y al condenar a la compaia
recurrente a la indemnizacion del dao causado por uno de
sus empleados, lejos de infringer los mencionados textos,
en relacion con el articulo 116 de la Ley de Enjuciamiento
Criminal, se ha atenido estrictamente a ellos, sin invadir
atribuciones ajenas a su jurisdiccion propia, ni contrariar en
lo mas minimo el fallo recaido en la causa.
Considering that the first ground of the appeal is based on
the mistaken supposition that the trial court, in sentencing
the Compaia Madrilea to the payment of the damage
caused by the death of Ramon Lafuente Izquierdo,
disregards the value and juridical effects of the sentence of
acquittal rendered in the criminal case instituted on account
of the same act, when it is a fact that the two jurisdictions
had taken cognizance of the same act in its different
aspects, and as the criminal jurisdiction declared within the
limits of its authority that the act in question did not
constitute a felony because there was no grave
carelessness or negligence, and this being the only basis of
acquittal, it does no exclude the co-existence of fault or
negligence which is not qualified, and is a source of civil
obligations according to article 1902 of the Civil Code,
affecting, in accordance with article 1903, among other
persons, the managers of establishments or enterprises by
reason of the damages caused by employees under certain
conditions, it is manifest that the civil jurisdiccion in taking
cognizance of the same act in this latter aspect and in

ordering the company, appellant herein, to pay an

indemnity for the damage caused by one of its
employees, far from violating said legal provisions, in
relation with article 116 of the Law of Criminal
Procedure, strictly followed the same, without invading
attributes which are beyond its own jurisdiction, and
without in any way contradicting the decision in that
cause. (Emphasis supplied.)
It will be noted, as to the case just cited:
First. That the conductor was not sued in a civil case, either
separately or with the street car company. This is precisely what
happens in the present case: the driver, Fontanilla, has not been
sued in a civil action, either alone or with his employer.
Second. That the conductor had been acquitted of grave
criminal negligence, but the Supreme Tribunal of Spain said that
this did not exclude the co-existence of fault or negligence,
which is not qualified, on the part of the conductor, under article
1902 of the Civil Code. In the present case, the taxi driver was
found guilty of criminal negligence, so that if he had even sued
for his civil responsibility arising from the crime, he would have
been held primarily liable for civil damages, and Barredo would
have been held subsidiarily liable for the same. But the plaintiffs
are directly suing Barredo, on his primary responsibility because
of his own presumed negligence which he did not overcome
under article 1903. Thus, there were two liabilities of Barredo:
first, the subsidiary one because of the civil liability of the taxi
driver arising from the latter's criminal negligence; and, second,
Barredo's primary liability as an employer under article 1903.
The plaintiffs were free to choose which course to take, and they
preferred the second remedy. In so doing, they were acting
within their rights. It might be observed in passing, that the
plaintiff choose the more expeditious and effective method of
relief, because Fontanilla was either in prison, or had just been
released, and besides, he was probably without property which
might be seized in enforcing any judgment against him for
damages.
Third. That inasmuch as in the above sentence of October 21,
1910, the employer was held liable civilly, notwithstanding the

acquittal of the employee (the conductor) in a previous criminal

case, with greater reason should Barredo, the employer in the case
at bar, be held liable for damages in a civil suit filed against him
because his taxi driver had been convicted. The degree of
negligence of the conductor in the Spanish case cited was less
than that of the taxi driver, Fontanilla, because the former was
acquitted in the previous criminal case while the latter was found
guilty of criminal negligence and was sentenced to an
indeterminate sentence of one year and one day to two years
of prision correccional.
(See also Sentence of February 19, 1902, which is similar to the
one above quoted.)
In the Sentence of the Supreme Court of Spain, dated February 14,
1919, an action was brought against a railroad company for
damages because the station agent, employed by the company,
had unjustly and fraudulently, refused to deliver certain articles
consigned to the plaintiff. The Supreme Court of Spain held that
this action was properly under article 1902 of the Civil Code, the
court saying:
Considerando que la sentencia discutida reconoce, en virtud
de los hechos que consigna con relacion a las pruebas del
pleito: 1., que las expediciones facturadas por la compaia
ferroviaria a la consignacion del actor de las vasijas vacias
que en su demanda relacionan tenian como fin el que este
las devolviera a sus remitentes con vinos y alcoholes; 2.,
que llegadas a su destino tales mercanias no se quisieron
entregar a dicho consignatario por el jefe de la estacion sin
motivo justificado y con intencion dolosa, y 3., que la falta
de entrega de estas expediciones al tiempo de reclamarlas
el demandante le originaron daos y perjuicios en cantidad
de bastante importancia como expendedor al por mayor
que era de vinos y alcoholes por las ganancias que dejo de
obtener al verse privado de servir los pedidos que se le
habian hecho por los remitentes en los envases:
Considerando que sobre esta base hay necesidad de
estimar los cuatro motivos que integran este recurso,
porque la demanda inicial del pleito a que se contrae no
contiene accion que nazca del incumplimiento del contrato

de transporte, toda vez que no se funda en el retraso de

la llegada de las mercancias ni de ningun otro vinculo
contractual entre las partes contendientes, careciendo,
por tanto, de aplicacion el articulo 371 del Codigo de
Comercio, en que principalmente descansa el fallo
recurrido, sino que se limita a pedir la reparaction de los
daos y perjuicios producidos en el patrimonio del actor
por la injustificada y dolosa negativa del porteador a la
entrega de las mercancias a su nombre consignadas,
segun lo reconoce la sentencia, y cuya responsabilidad
esta claramente sancionada en el articulo 1902 del
Codigo Civil, que obliga por el siguiente a la Compaia
demandada como ligada con el causante de aquellos por
relaciones de caracter economico y de jurarquia
administrativa.
Considering that the sentence, in question recognizes, in
virtue of the facts which it declares, in relation to the
evidence in the case: (1) that the invoice issued by the
railroad company in favor of the plaintiff contemplated
that the empty receptacles referred to in the complaint
should be returned to the consignors with wines and
liquors; (2) that when the said merchandise reached their
destination, their delivery to the consignee was refused
by the station agent without justification and
with fraudulent intent, and (3) that the lack of delivery of
these goods when they were demanded by the plaintiff
caused him losses and damages of considerable
importance, as he was a wholesale vendor of wines and
liquors and he failed to realize the profits when he was
unable to fill the orders sent to him by the consignors of
the receptacles:
Considering that upon this basis there is need of
upholding the four assignments of error, as the original
complaint did not contain any cause of action arising
from non-fulfillment of a contract of transportation,
because the action was not based on the delay of the
goods nor on any contractual relation between the
parties litigant and, therefore, article 371 of the Code of
Commerce, on which the decision appealed from is

10

based, is not applicable; but it limits to asking for reparation

for losses and damages produced on the patrimony of the
plaintiff on account of the unjustified and fraudulent
refusal of the carrier to deliver the goods consigned to the
plaintiff as stated by the sentence, and the carrier's
responsibility is clearly laid down in article 1902 of the Civil
Code which binds, in virtue of the next article, the
defendant company, because the latter is connected with
the person who caused the damage by relations of
economic character and by administrative hierarchy.
(Emphasis supplied.)
The above case is pertinent because it shows that the same act
may come under both the Penal Code and the Civil Code. In that
case, the action of the agent was unjustified and fraudulent and
therefore could have been the subject of a criminal action. And yet,
it was held to be also a proper subject of a civil action under article
1902 of the Civil Code. It is also to be noted that it was the
employer and not the employee who was being sued.
Let us now examine the cases previously decided by this Court.
In the leading case of Rakes vs. Atlantic Gulf and Pacific Co. (7
Phil., 359, 362-365 [year 1907]), the trial court awarded damages
to the plaintiff, a laborer of the defendant, because the latter had
negligently failed to repair a tramway in consequence of which the
rails slid off while iron was being transported, and caught the
plaintiff whose leg was broken. This Court held:
It is contended by the defendant, as its first defense to the
action that the necessary conclusion from these collated
laws is that the remedy for injuries through negligence lies
only in a criminal action in which the official criminally
responsible must be made primarily liable and his employer
held only subsidiarily to him. According to this theory the
plaintiff should have procured the arrest of the
representative of the company accountable for not repairing
the track, and on his prosecution a suitable fine should have
been imposed, payable primarily by him and secondarily by
his employer.

This reasoning misconceived the plan of the Spanish

codes upon this subject. Article 1093 of the Civil Code
makes obligations arising from faults or negligence not
punished by the law, subject to the provisions of Chapter
II of Title XVI. Section 1902 of that chapter reads:
"A person who by an act or omission causes
damage to another when there is fault or
negligence shall be obliged to repair the damage
so done.
"SEC. 1903. The obligation imposed by the
preceeding article is demandable, not only for
personal acts and omissions, but also for those of
the persons for whom they should be responsible.
"The father, and on his death or incapacity, the
mother, is liable for the damages caused by the
minors who live with them.
xxx

xxx

xxx

"Owners or directors of an establishment or

enterprise are equally liable for the damages
caused by their employees in the service of the
branches in which the latter may be employed or
in the performance of their duties.
xxx

xxx

xxx

"The liability referred to in this article shall cease

when the persons mentioned therein prove that
they employed all the diligence of a good father
of a family to avoid the damage."
As an answer to the argument urged in this particular
action it may be sufficient to point out that nowhere in
our general statutes is the employer penalized for failure
to provide or maintain safe appliances for his workmen.
His obligation therefore is one 'not punished by the laws'
and falls under civil rather than criminal jurisprudence.
But the answer may be a broader one. We should be
reluctant, under any conditions, to adopt a forced
construction of these scientific codes, such as is

11

proposed by the defendant, that would rob some of these

articles of effect, would shut out litigants against their will
from the civil courts, would make the assertion of their
rights dependent upon the selection for prosecution of the
proper criminal offender, and render recovery doubtful by
reason of the strict rules of proof prevailing in criminal
actions. Even if these articles had always stood alone, such
a construction would be unnecessary, but clear light is
thrown upon their meaning by the provisions of the Law of
Criminal Procedure of Spain (Ley de Enjuiciamiento
Criminal), which, though never in actual force in these
Islands, was formerly given a suppletory or explanatory
effect. Under article 111 of this law, both classes of action,
civil and criminal, might be prosecuted jointly or separately,
but while the penal action was pending the civil was
suspended. According to article 112, the penal action once
started, the civil remedy should be sought therewith, unless
it had been waived by the party injured or been expressly
reserved by him for civil proceedings for the future. If the
civil action alone was prosecuted, arising out of a crime that
could be enforced only on private complaint, the penal
action thereunder should be extinguished. These provisions
are in harmony with those of articles 23 and 133 of our
Penal Code on the same subject.
An examination of this topic might be carried much further,
but the citation of these articles suffices to show that the
civil liability was not intended to be merged in the criminal
nor even to be suspended thereby, except as expressly
provided in the law. Where an individual is civilly liable for a
negligent act or omission, it is not required that the injured
party should seek out a third person criminally liable whose
prosecution must be a condition precedent to the
enforcement of the civil right.
Under article 20 of the Penal Code the responsibility of an
employer may be regarded as subsidiary in respect of
criminal actions against his employees only while they are
in process of prosecution, or in so far as they determine the
existence of the criminal act from which liability arises, and
his obligation under the civil law and its enforcement in the

civil courts is not barred thereby unless by the election of

the injured person. Inasmuch as no criminal proceeding
had been instituted, growing our of the accident in
question, the provisions of the Penal Code can not affect
this action. This construction renders it unnecessary to
finally determine here whether this subsidiary civil
liability in penal actions has survived the laws that fully
regulated it or has been abrogated by the American civil
and criminal procedure now in force in the Philippines.
The difficulty in construing the articles of the code above
cited in this case appears from the briefs before us to
have arisen from the interpretation of the words of article
1093, "fault or negligence not punished by law," as
applied to the comprehensive definition of offenses in
articles 568 and 590 of the Penal Code. It has been
shown that the liability of an employer arising out of his
relation to his employee who is the offender is not to be
regarded as derived from negligence punished by the
law, within the meaning of articles 1902 and 1093. More
than this, however, it cannot be said to fall within the
class of acts unpunished by the law, the consequence of
which are regulated by articles 1902 and 1903 of the
Civil Code. The acts to which these articles are applicable
are understood to be those not growing out of preexisting duties of the parties to one another. But where
relations already formed give rise to duties, whether
springing from contract or quasi contract, then breaches
of those duties are subject to articles 1101, 1103, and
1104 of the same code. A typical application of this
distinction may be found in the consequences of a
railway accident due to defective machinery supplied by
the employer. His liability to his employee would arise
out of the contract of employment, that to the
passengers out of the contract for passage, while that to
the injured bystander would originate in the negligent
act itself.
In Manzanares vs. Moreta, 38 Phil., 821 (year 1918), the mother
of the 8 of 9-year-old child Salvador Bona brought a civil action
against Moreta to recover damages resulting from the death of

12

the child, who had been run over by an automobile driven and
managed by the defendant. The trial court rendered judgment
requiring the defendant to pay the plaintiff the sum of P1,000 as
indemnity: This Court in affirming the judgment, said in part:
If it were true that the defendant, in coming from the
southern part of Solana Street, had to stop his auto before
crossing Real Street, because he had met vehicles which
were going along the latter street or were coming from the
opposite direction along Solana Street, it is to be believed
that, when he again started to run his auto across said Real
Street and to continue its way along Solana Street
northward, he should have adjusted the speed of the auto
which he was operating until he had fully crossed Real
Street and had completely reached a clear way on Solana
Street. But, as the child was run over by the auto precisely
at the entrance of Solana Street, this accident could not
have occurred if the auto had been running at a slow speed,
aside from the fact that the defendant, at the moment of
crossing Real Street and entering Solana Street, in a
northward direction, could have seen the child in the act of
crossing the latter street from the sidewalk on the right to
that on the left, and if the accident had occurred in such a
way that after the automobile had run over the body of the
child, and the child's body had already been stretched out
on the ground, the automobile still moved along a distance
of about 2 meters, this circumstance shows the fact that the
automobile entered Solana Street from Real Street, at a
high speed without the defendant having blown the horn. If
these precautions had been taken by the defendant, the
deplorable accident which caused the death of the child
would not have occurred.
It will be noticed that the defendant in the above case could have
been prosecuted in a criminal case because his negligence causing
the death of the child was punishable by the Penal Code. Here is
therefore a clear instance of the same act of negligence being a
proper subject-matter either of a criminal action with its
consequent civil liability arising from a crime or of an entirely
separate and independent civil action for fault or negligence under
article 1902 of the Civil Code. Thus, in this jurisdiction, the

separate individually of a cuasi-delito or culpa aquilianaunder

the Civil Code has been fully and clearly recognized, even with
regard to a negligent act for which the wrongdoer could have
been prosecuted and convicted in a criminal case and for which,
after such a conviction, he could have been sued for this civil
liability arising from his crime.
Years later (in 1930) this Court had another occasion to apply
the same doctrine. In Bernal and Enverso vs. House and
Tacloban Electric & Ice Plant, Ltd., 54 Phil., 327, the parents of
the five-year-old child, Purificacion Bernal, brought a civil action
to recover damages for the child's death as a result of burns
caused by the fault and negligence of the defendants. On the
evening of April 10, 1925, the Good Friday procession was held
in Tacloban, Leyte. Fortunata Enverso with her daughter
Purificacion Bernal had come from another municipality to
attend the same. After the procession the mother and the
daughter with two others were passing along Gran Capitan
Street in front of the offices of the Tacloban Electric & Ice Plant,
Ltd., owned by defendants J. V. House, when an automobile
appeared from the opposite direction. The little girl, who was
slightly ahead of the rest, was so frightened by the automobile
that she turned to run, but unfortunately she fell into the street
gutter where hot water from the electric plant was flowing. The
child died that same night from the burns. The trial courts
dismissed the action because of the contributory negligence of
the plaintiffs. But this Court held, on appeal, that there was no
contributory negligence, and allowed the parents P1,000 in
damages from J. V. House who at the time of the tragic
occurrence was the holder of the franchise for the electric plant.
This Court said in part:
Although the trial judge made the findings of fact
hereinbefore outlined, he nevertheless was led to order
the dismissal of the action because of the contributory
negligence of the plaintiffs. It is from this point that a
majority of the court depart from the stand taken by the
trial judge. The mother and her child had a perfect right
to be on the principal street of Tacloban, Leyte, on the
evening when the religious procession was held. There
was nothing abnormal in allowing the child to run along a

13

few paces in advance of the mother. No one could foresee

the coincidence of an automobile appearing and of a
frightened child running and falling into a ditch filled with
hot water. The doctrine announced in the much debated
case of Rakes vs. Atlantic Gulf and Pacific Co. ([1907]), 7
Phil., 359), still rule. Article 1902 of the Civil Code must
again be enforced. The contributory negligence of the child
and her mother, if any, does not operate as a bar to
recovery, but in its strictest sense could only result in
reduction of the damages.
It is most significant that in the case just cited, this Court
specifically applied article 1902 of the Civil Code. It is thus that
although J. V. House could have been criminally prosecuted for
reckless or simple negligence and not only punished but also made
civilly liable because of his criminal negligence, nevertheless this
Court awarded damages in an independent civil action for fault or
negligence under article 1902 of the Civil Code.
In Bahia vs. Litonjua and Leynes (30 Phil., 624 [year 1915), the
action was for damages for the death of the plaintiff's daughter
alleged to have been caused by the negligence of the servant in
driving an automobile over the child. It appeared that the cause of
the mishap was a defect in the steering gear. The defendant
Leynes had rented the automobile from the International Garage of
Manila, to be used by him in carrying passengers during the fiesta
of Tuy, Batangas. Leynes was ordered by the lower court to pay
P1,000 as damages to the plaintiff. On appeal this Court reversed
the judgment as to Leynes on the ground that he had shown that
the exercised the care of a good father of a family, thus
overcoming the presumption of negligence under article 1903. This
Court said:
As to selection, the defendant has clearly shown that he
exercised the care and diligence of a good father of a family.
He obtained the machine from a reputable garage and it
was, so far as appeared, in good condition. The workmen
were likewise selected from a standard garage, were duly
licensed by the Government in their particular calling, and
apparently thoroughly competent. The machine had been
used but a few hours when the accident occurred and it is

clear from the evidence that the defendant had no

notice, either actual or constructive, of the defective
condition of the steering gear.
The legal aspect of the case was discussed by this Court thus:
Article 1903 of the Civil Code not only establishes liability
in cases of negligence, but also provides when the
liability shall cease. It says:
"The liability referred to in this article shall cease
when the persons mentioned therein prove that
they employed all the diligence of a good father
of a family to avoid the damage."
From this article two things are apparent: (1) That when
an injury is caused by the negligence of a servant or
employee there instantly arises a presumption of law
that there was negligence on the part of the matter or
employer either in the selection of the servant or
employee, or in supervision over him after the selection,
or both; and (2) that presumption is juris tantum and
not juris et de jure, and consequently, may be rebutted.
It follows necessarily that if the employer shows to the
satisfaction of the court that in selection and supervision
he has exercised the care and diligence of a good father
of a family, the presumption is overcome and he is
relieve from liability.
This theory bases the responsibility of the master
ultimately on his own negligence and not on that of his
servant.
The doctrine of the case just cited was followed by this Court
in Cerf vs. Medel (33 Phil., 37 [year 1915]). In the latter case,
the complaint alleged that the defendant's servant had so
negligently driven an automobile, which was operated by
defendant as a public vehicle, that said automobile struck and
damaged the plaintiff's motorcycle. This Court, applying article
1903 and following the rule in Bahia vs. Litonjua and Leynes,
said in part (p. 41) that:

14

The master is liable for the negligent acts of his servant

where he is the owner or director of a business or enterprise
and the negligent acts are committed while the servant is
engaged in his master's employment as such owner.
Another case which followed the decision in Bahia vs. Litonjua and
Leynes was Cuison vs. Norton & Harrison Co., 55 Phil., 18 (year
1930). The latter case was an action for damages brought by
Cuison for the death of his seven-year-old son Moises. The little
boy was on his way to school with his sister Marciana. Some large
pieces of lumber fell from a truck and pinned the boy underneath,
instantly killing him. Two youths, Telesforo Binoya and Francisco
Bautista, who were working for Ora, an employee of defendant
Norton & Harrison Co., pleaded guilty to the crime of homicide
through reckless negligence and were sentenced accordingly. This
Court, applying articles 1902 and 1903, held:
The basis of civil law liability is not respondent superior but
the relationship of pater familias. This theory bases the
liability of the master ultimately on his own negligence and
not on that of his servant. (Bahia vs.Litonjua and Leynes
[1915], 30 Phil., 624; Cangco vs. Manila Railroad Co. [1918],
38 Phil., 768.)
In Walter A. Smith & Co. vs. Cadwallader Gibson Lumber Co., 55
Phil., 517 (year 1930) the plaintiff brought an action for damages
for the demolition of its wharf, which had been struck by the
steamer Helen C belonging to the defendant. This Court held (p.
526):
The evidence shows that Captain Lasa at the time the
plaintiff's wharf collapsed was a duly licensed captain,
authorized to navigate and direct a vessel of any tonnage,
and that the appellee contracted his services because of his
reputation as a captain, according to F. C. Cadwallader. This
being so, we are of the opinion that the presumption of
liability against the defendant has been overcome by the
exercise of the care and diligence of a good father of a
family in selecting Captain Lasa, in accordance with the
doctrines laid down by this court in the cases cited above,
and the defendant is therefore absolved from all liability.

It is, therefore, seen that the defendant's theory about his

secondary liability is negatived by the six cases above set forth.
He is, on the authority of these cases, primarily and directly
responsible in damages under article 1903, in relation to article
1902, of the Civil Code.
Let us now take up the Philippine decisions relied upon by the
defendant. We study first, City of Manila vs. Manila Electric Co.,
52 Phil., 586 (year 1928). A collision between a truck of the City
of Manila and a street car of the Manila Electric Co. took place
on June 8, 1925. The truck was damaged in the amount of
P1,788.27. Sixto Eustaquio, the motorman, was prosecuted for
the crime of damage to property and slight injuries through
reckless imprudence. He was found guilty and sentenced to pay
a fine of P900, to indemnify the City of Manila for P1,788.27,
with subsidiary imprisonment in case of insolvency. Unable to
collect the indemnity from Eustaquio, the City of Manila filed an
action against the Manila Electric Company to obtain payment,
claiming that the defendant was subsidiarily liable. The main
defense was that the defendant had exercised the diligence of a
good father of a family to prevent the damage. The lower court
rendered judgment in favor of the plaintiff. This Court held, in
part, that this case was governed by the Penal Code, saying:
With this preliminary point out of the way, there is no
escaping the conclusion that the provisions of the Penal
Code govern. The Penal Code in easily understandable
language authorizes the determination of subsidiary
liability. The Civil Code negatives its application by
providing that civil obligations arising from crimes or
misdemeanors shall be governed by the provisions of the
Penal Code. The conviction of the motorman was a
misdemeanor falling under article 604 of the Penal Code.
The act of the motorman was not a wrongful or negligent
act or omission not punishable by law. Accordingly, the
civil obligation connected up with the Penal Code and not
with article 1903 of the Civil Code. In other words, the
Penal Code affirms its jurisdiction while the Civil Code
negatives its jurisdiction. This is a case of criminal
negligence out of which civil liability arises and not a
case of civil negligence.

15

xxx

xxx

xxx

Our deduction, therefore, is that the case relates to the

Penal Code and not to the Civil Code. Indeed, as pointed out
by the trial judge, any different ruling would permit the
master to escape scot-free by simply alleging and proving
that the master had exercised all diligence in the selection
and training of its servants to prevent the damage. That
would be a good defense to a strictly civil action, but might
or might not be to a civil action either as a part of or
predicated on conviction for a crime or misdemeanor. (By
way of parenthesis, it may be said further that the
statements here made are offered to meet the argument
advanced during our deliberations to the effect that article
0902 of the Civil Code should be disregarded and codal
articles 1093 and 1903 applied.)
It is not clear how the above case could support the defendant's
proposition, because the Court of Appeals based its decision in the
present case on the defendant's primary responsibility under
article 1903 of the Civil Code and not on his subsidiary liability
arising from Fontanilla's criminal negligence. In other words, the
case of City of Manila vs. Manila Electric Co., supra, is predicated
on an entirely different theory, which is the subsidiary liability of an
employer arising from a criminal act of his employee, whereas the
foundation of the decision of the Court of Appeals in the present
case is the employer's primary liability under article 1903 of the
Civil Code. We have already seen that this is a proper and
independent remedy.
Arambulo vs. Manila Electric Co. (55 Phil., 75), is another case
invoked by the defendant. A motorman in the employ of the Manila
Electric Company had been convicted o homicide by simple
negligence and sentenced, among other things, to pay the heirs of
the deceased the sum of P1,000. An action was then brought to
enforce the subsidiary liability of the defendant as employer under
the Penal Code. The defendant attempted to show that it had
exercised the diligence of a good father of a family in selecting the
motorman, and therefore claimed exemption from civil liability. But
this Court held:

In view of the foregoing considerations, we are of opinion

and so hold, (1) that the exemption from civil liability
established in article 1903 of the Civil Code for all who
have acted with the diligence of a good father of a
family, is not applicable to the subsidiary civil liability
provided in article 20 of the Penal Code.
The above case is also extraneous to the theory of the
defendant in the instant case, because the action there had for
its purpose the enforcement of the defendant's subsidiary
liability under the Penal Code, while in the case at bar, the
plaintiff's cause of action is based on the defendant's primary
and direct responsibility under article 1903 of the Civil Code. In
fact, the above case destroys the defendant's contention
because that decision illustrates the principle that the
employer's primary responsibility under article 1903 of the Civil
Code is different in character from his subsidiary liability under
the Penal Code.
In trying to apply the two cases just referred to, counsel for the
defendant has failed to recognize the distinction between civil
liability arising from a crime, which is governed by the Penal
Code,
and
the
responsibility
for cuasi-delito or culpa
aquiliana under the Civil Code, and has likewise failed to give
the importance to the latter type of civil action.
The defendant-petitioner also cites Francisco vs. Onrubia (46
Phil., 327). That case need not be set forth. Suffice it to say that
the question involved was also civil liability arising from a crime.
Hence, it is as inapplicable as the two cases above discussed.
The foregoing authorities clearly demonstrate the separate
individuality of cuasi-delitos or culpa aquiliana under the Civil
Code. Specifically they show that there is a distinction between
civil liability arising from criminal negligence (governed by the
Penal Code) and responsibility for fault or negligence under
articles 1902 to 1910 of the Civil Code, and that the same
negligent act may produce either a civil liability arising from a
crime under the Penal Code, or a separate responsibility for
fault or negligence under articles 1902 to 1910 of the Civil
Code. Still more concretely, the authorities above cited render it
inescapable to conclude that the employer in this case the

16

defendant-petitioner is primarily and directly liable under article

1903 of the Civil Code.
The legal provisions, authors, and cases already invoked should
ordinarily be sufficient to dispose of this case. But inasmuch as we
are announcing doctrines that have been little understood in the
past, it might not be inappropriate to indicate their foundations.
Firstly, the Revised Penal Code in article 365 punishes not only
reckless but also simple negligence. If we were to hold that articles
1902 to 1910 of the Civil Code refer only to fault or negligence not
punished by law, according to the literal import of article 1093 of
the Civil Code, the legal institution of culpa aquiliana would have
very little scope and application in actual life. Death or injury to
persons and damage to property through any degree of negligence
even the slightest would have to be indemnified only through
the principle of civil liability arising from a crime. In such a state of
affairs, what sphere would remain for cuasi-delito or culpa
aquiliana? We are loath to impute to the lawmaker any intention to
bring about a situation so absurd and anomalous. Nor are we, in
the interpretation of the laws, disposed to uphold the letter that
killeth rather than the spirit that giveth life. We will not use the
literal meaning of the law to smother and render almost lifeless a
principle of such ancient origin and such full-grown development
as culpa aquiliana or cuasi-delito, which is conserved and made
enduring in articles 1902 to 1910 of the Spanish Civil Code.
Secondly, to find the accused guilty in a criminal case, proof of
guilt beyond reasonable doubt is required, while in a civil case,
preponderance of evidence is sufficient to make the defendant pay
in damages. There are numerous cases of criminal negligence
which can not be shown beyond reasonable doubt, but can be
proved by a preponderance of evidence. In such cases, the
defendant can and should be made responsible in a civil action
under articles 1902 to 1910 of the Civil Code. Otherwise, there
would be many instances of unvindicated civil wrongs. Ubi jus ibi
remedium.
Thirdly, to hold that there is only one way to make defendant's
liability effective, and that is, to sue the driver and exhaust his (the
latter's) property first, would be tantamount to compelling the
plaintiff to follow a devious and cumbersome method of obtaining

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

17

accidents, and there is need of stressing and accentuating the

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

18

BIDIN, J.:
This petition for certiorari prays for the reversal of the decision
of the Court of Appeals dated October 29, 1991 in CA-G.R. CV
No. 24646 which affirmed the order of the Regional Trial Court
dismissing Civil Case No. Q-89-1751, and its resolution dated
November 17, 1991 denying herein, petitioner's motion for
reconsideration.
The antecedent facts of the case are as follows:
On December 7, 1988, an altercation between Benigno Torzuela
and Atty. Napoleon Dulay occurred at the "Big Bang Sa
Alabang," Alabang Village, Muntinlupa as a result of which
Benigno Torzuela, the security guard on duty at the said
carnival, shot and killed Atty. Napoleon Dulay.

Republic of the Philippines

SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 108017 April 3, 1995
MARIA BENITA A. DULAY, in her own behalf and in behalf of
the minor children KRIZTEEN ELIZABETH, BEVERLY MARIE
and NAPOLEON II, all surnamed DULAY, petitioners,
vs.
THE COURT OF APPEALS, Former Eighth Division, HON.
TEODORO P. REGINO, in his capacity as Presiding Judge of
the Regional Trial Court National Capital Region, Quezon
City, Br. 84, SAFEGUARD INVESTIGATION AND SECURITY
CO., INC., and SUPERGUARD SECURITY
CORPORATION, respondents.

Herein petitioner Maria Benita A. Dulay, widow of the deceased

Napoleon Dulay, in her own behalf and in behalf of her minor
children, filed on February 8, 1989 an action for damages
against Benigno Torzuela and herein private respondents
Safeguard Investigation and Security Co., Inc., ("SAFEGUARD")
and/or Superguard Security Corp. ("SUPERGUARD"), alleged
employers of defendant Torzuela. The complaint, docketed as
Civil Case No. Q-89-1751 among others alleges the following:
1. . . .
Defendants SAFEGUARD INVESTIGATION AND
SECURITY CO., INC., (Defendant Safeguard) and
SUPERGUARD
SECURITY
CORPORATION
(Defendant Superguard) are corporations duly
organized and existing in accordance with
Philippine laws, with offices at 10th Floor,
Manufacturers Building, Inc., Plaza Santa Cruz,
Manila. They are impleaded as alternative
defendants for, while the former appears to be
the employer of defendant BENIGNO TORZUELA
(defendant TORZUELA), the latter impliedly
acknowledged responsibility for the acts of

19

defendant TORZUELA by extending its sympathies to

plaintiffs.
Defendant BENIGNO TORZUELA is of legal age, an
employee
of
defendant
SAFEGUARD
and/or
defendant SUPERGUARD and, at the time of the
incident complained of, was under their control and
supervision. . . .
3. On December 7, 1988 at around 8:00 a.m.,
defendant TORZUELA, while he was on duty as
security guard at the "Big Bang sa Alabang," Alabang
Village, Muntinlupa, Metro Manila shot and killed
NAPOLEON V. DULAY with a .38 caliber revolver
belonging
to
defendant SAFEGUARD,
and/or
SUPERGUARD (per Police Report dated January 7,
1989, copy attached as Annex A);
4. The incident resulting in the death of NAPOLEON
V. DULAY was due to the concurring negligence of
the defendants. Defendant TORZUELA'S wanton and
reckless discharge of the firearm issued to him by
defendant SAFEGUARD and/or SUPERGUARD was the
immediate and proximate cause of the injury, while
the negligence of defendant SAFEGUARD and/or
SUPERGUARD consists in its having failed to exercise
the diligence of a good father of a family in the
supervision and control of its employee to avoid the
injury.
xxx xxx xxx
(Rollo, pp. 117-118)
Petitioners prayed for actual, compensatory, moral and exemplary
damages, and attorney's fees. The said Civil Case No. Q-89-1751
was raffled to Branch 84 of the Regional Trial Court of Quezon City,
presided by respondent Judge Teodoro Regino.
On March 2, 1989, private respondent SUPERGUARD filed a Motion
to Dismiss on the ground that the complaint does not state a valid
cause of action. SUPERGUARD claimed that Torzuela's act of
shooting Dulay was beyond the scope of his duties, and that since

the alleged act of shooting was committed with deliberate

intent (dolo), the civil liability therefor is governed by Article 100
of the Revised Penal Code, which states:
Art. 100. Civil liability of a person guilty of a
felony. Every person criminally liable for a
felony is also civilly liable.
Respondent SUPERGUARD further alleged that a complaint for
damages based on negligence under Article 2176 of the New
Civil Code, such as the one filed by petitioners, cannot lie, since
the civil liability under Article 2176 applies only to quasioffenses under Article 365 of the Revised Penal Code. In
addition, the private respondent argued that petitioners' filing of
the complaint is premature considering that the conviction of
Torzuela in a criminal case is a condition sine qua non for the
employer's subsidiary liability (Rollo, p. 55-59).
Respondent SAFEGUARD also filed a motion praying that it be
excluded as defendant on the ground that defendant Torzuela is
not one of its employees (Rollo, p. 96).
Petitioners opposed both motions, stating that their cause of
action against the private respondents is based on their liability
under Article 2180 of the New Civil Code, which provides:
Art. 2180. The obligation imposed by Article 2176
is demandable not only for one's own acts or
omissions, but also for those of persons for whom
one is responsible.
xxx xxx xxx
Employers shall be liable for the damages caused
by their employees and household helpers acting
within the scope of their assigned tasks, even
though the former are not engaged in any
business or an industry.
xxx xxx xxx
(Emphasis supplied)
Petitioners contended that a suit against alternative defendants
is allowed under Rule 3, Section 13 of the Rules of Court.

20

Therefore, the inclusion of private respondents as alternative

defendants in the complaint is justified by the following: the Initial
Investigation Report prepared by Pat. Mario Tubon showing that
Torzuela is an employee of SAFEGUARD; and through overt acts,
SUPERGUARD extended its sympathies to petitioners (Rollo, pp. 64
and 98).
Meanwhile, an Information dated March 21, 1989 charging Benigno
Torzuela with homicide was filed before the Regional Trial Court of
Makati and was docketed as Criminal Case No. 89-1896.
On April 13, 1989, respondent Judge Regino issued an order
granting SUPERGUARD'S motion to dismiss and SAFEGUARD'S
motion for exclusion as defendant. The respondent judge held that
the complaint did not state facts necessary or sufficient to
constitute a quasi-delict since it does not mention any negligence
on the part of Torzuela in shooting Napoleon Dulay or that the
same was done in the performance of his duties. Respondent judge
ruled that mere allegations of the concurring negligence of the
defendants (private respondents herein) without stating the facts
showing such negligence are mere conclusions of law (Rollo, p.
106). Respondent judge also declared that the complaint was one
for damages founded on crimes punishable under Articles 100 and
103 of the Revised Penal Code as distinguished from those arising
from, quasi-delict. The dispositive portion of the order dated April
13, 1989 states:
WHEREFORE, this Court holds that in view of the
material and ultimate facts alleged in the verified
complaint and in accordance with the applicable law
on the matter as well as precedents laid down by the
Supreme Court, the complaint against the alternative
defendants Superguard Security Corporation and
Safeguard Investigation and Security Co., Inc., must
be and (sic) it is hereby dismissed. (Rollo, p. 110)
The above order was affirmed by the respondent court and
petitioners' motion for reconsideration thereof was denied.
Petitioners take exception to the assailed decision and insist that
quasi-delicts are not limited to acts of negligence but also cover
acts that are intentional and voluntary, citing Andamo v. IAC (191

SCRA 195 [1990]). Thus, petitioners insist that Torzuela' s act of

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

21

The term "physical injuries" under Article 33 has been held to

include consummated, frustrated and attempted homicide. Thus,
petitioners maintain that Torzuela's prior conviction is unnecessary
since the civil action can proceed independently of the criminal
action. On the other hand, it is the private respondents' argument
that since the act was not committed with negligence, the
petitioners have no cause of action under Articles 2116 and 2177
of the New Civil Code. The civil action contemplated in Article 2177
is not applicable to acts committed with deliberate intent, but only
applies to quasi-offenses under Article 365 of the Revised Penal
Code. Torzuela's act of shooting Atty. Dulay to death, aside from
being purely personal, was done with deliberate intent and could
not have been part of his duties as security guard. And since
Article 2180 of the New Civil Code covers only: acts done within
the scope of the employee's assigned tasks, the private
respondents cannot be held liable for damages.
We find for petitioners.
It is undisputed that Benigno Torzuela is being prosecuted for
homicide for the fatal shooting of Napoleon Dulay. Rule 111 of the
Rules on Criminal Procedure provides:

case. However, the private respondents opposed the civil action

on the ground that the same is founded on a delict and not on a
quasi-delict as the shooting was not attended by negligence.
What is in dispute therefore is the nature of the petitioner's
cause of action.
The nature of a cause of action is determined by the facts
alleged in the complaint as constituting the cause of action
(Republic v. Estenzo, 158 SCRA 282 [1988]). The purpose of an
action or suit and the law to govern it is to be determined not by
the claim of the party filing the action, made in his argument or
brief, but rather by the complaint itself, its allegations and
prayer for relief. (De Tavera v. Philippine Tuberculosis Society,
112 SCRA 243 [1982]). An examination of the complaint in the
present case would show that the plaintiffs, petitioners herein,
are invoking their right to recover damages against the private
respondents for their vicarious responsibility for the injury
caused by Benigno Torzuela's act of shooting and killing
Napoleon Dulay, as stated in paragraphs 1 and 2 of the
complaint.
Article 2176 of the New Civil Code provides:

Sec. 1. Institution of criminal and civil actions. When

a criminal action is instituted, the civil action for the
recovery of civil liability is impliedly instituted with
the criminal action, unless the offended party waives
the civil action , reserves his right to institute it
separately or institutes the civil action prior to the
criminal action.

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 preexisting contractual relation between the parties
is called a quasi-delict and is governed by the
provisions of this Chapter.

Such civil action includes recovery of indemnity

under the Revised Penal Code, and damages under
Articles 32, 33, 34, and 2176 of the Civil Code of the
Philippines arising from the same act or omission of
the accused. (Emphasis supplied)

Contrary to the theory of private respondents, there is no

justification for limiting the scope of Article 2176 of the Civil
Code to acts or omissions resulting from negligence. Wellentrenched is the doctrine that article 2176 covers not only acts
committed with negligence, but also acts which are voluntary
and intentional. As far back as the definitive case of Elcano v.
Hill (77 SCRA 98 [1977]), this Court already held that:

It is well-settled that the filing of an independent civil action before

the prosecution in the criminal action presents evidence is even far
better than a compliance with the requirement of express
reservation (Yakult Philippines v. Court of Appeals, 190 SCRA 357
[1990]). This is precisely what the petitioners opted to do in this

. . . Article 2176, where it refers to "fault or

negligence," covers not only acts "not punishable
by law" but also acts criminal in character;

22

whether intentional and voluntary or negligent.

Consequently, a separate civil action against the
offender in a criminal act, whether or not he is
criminally prosecuted and found guilty or acquitted,
provided that the offended party is not allowed, if he
is actually charged also criminally, to recover
damages on both scores, and would be entitled in
such eventuality only to the bigger award of the two,
assuming the awards made in the two cases vary. In
other words, the extinction of civil liability referred to
in Par. (e) of Section 3, Rule 111, refers exclusively to
civil liability founded on Article 100 of the Revised
Penal Code, whereas the civil liability for the same
act considered as quasi-delict only and not as a
crime is not extinguished even by a declaration in
the criminal case that the criminal act charged has
not happened or has not been committed by the
accused. Briefly stated, We here hold, in reiteration
of Garcia, that culpa aquiliana includes voluntary
and negligent acts which may be punishable by law.
(Emphasis supplied)
The same doctrine was echoed in the case of Andamo v.
Intermediate Appellate Court (191 SCRA 195 [1990]), wherein the
Court held:
Article 2176, whenever it refers to "fault or
negligence," covers not only acts criminal in
character, whether intentional and voluntary or
negligent. Consequently, a civil action lies against
the offender in a criminal act, whether or not he is
prosecuted or found guilty or acquitted, provided
that the offended party is not allowed, (if the
tortfeasor is actually also charged criminally), to
recover damages on both scores, and would be
entitled in such eventuality only to the bigger award
of the two, assuming the awards made in the two
cases vary. [citing Virata v. Ochoa, 81 SCRA 472]
(Emphasis supplied)

Private respondents submit that the word "intentional" in

the Andamo case is inaccurate obiter, and should be read as
"voluntary" since intent cannot be coupled with negligence as
defined by Article 365 of the Revised Penal Code. In the absence
of more substantial reasons, this Court will not disturb the
above doctrine on the coverage of Article 2176.
Private respondents further aver that Article 33 of the New Civil
Code applies only to injuries intentionally committed pursuant
to the ruling in Marcia v. CA (120 SCRA 193 [1983]), and that
the actions for damages allowed thereunder are ex-delicto.
However, the term "physical injuries" in Article 33 has already
been construed to include bodily injuries causing death (Capuno
v. Pepsi-Cola Bottling Co. of the Philippines, 121 Phil. 638
[1965); Carandang v. Santiago, 97 Phil. 94 [1955]). It is not the
crime of physical injuries defined in the Revised Penal Code. It
includes not only physical injuries but also consummated,
frustrated, and attempted homicide (Madeja v. Caro, 126 SCRA
293 [1983]). Although in the Marcia case (supra), it was held
that no independent civil action may be filed under Article 33
where the crime is the result of criminal negligence, it must be
noted however, that Torzuela, the accused in the case at bar, is
charged with homicide, not with reckless imprudence, whereas
the defendant in Marcia was charged with reckless imprudence.
Therefore, in this case, a civil action based on Article 33 lies.
Private respondents also contend that their liability is subsidiary
under the Revised Penal Code; and that they are not liable for
Torzuela's act which is beyond the scope of his duties as a
security guard. It having been established that the instant
action is not ex-delicto, petitioners may proceed directly against
Torzuela and the private respondents. Under Article 2180 of the
New Civil Code as aforequoted, when an injury is caused by the
negligence of the employee, there instantly arises a
presumption of law that there was negligence on the part of the
master or employer either in the selection of the servant or
employee, or in supervision over him after selection or both
(Layugan v. Intermediate Appellate Court, 167 SCRA 363
[1988]). The liability of the employer under Article 2180 is direct
and immediate; it is not conditioned upon prior recourse against
the negligent employee and a prior showing of the insolvency of

23

such employee (Kapalaran Bus Lines v. Coronado, 176 SCRA 792

[1989]). Therefore, it is incumbent upon the private respondents to
prove that they exercised the diligence of a good father of a family
in the selection and supervision of their employee.
Since Article 2176 covers not only acts of negligence but also acts
which are intentional and voluntary, it was therefore erroneous on
the part of the trial court to dismiss petitioner's complaint simply
because it failed to make allegations of attendant negligence
attributable to private respondents.
With respect to the issue of whether the complaint at hand states a
sufficient cause of action, the general rule is that the allegations in
a complaint are sufficient to constitute a cause of action against
the defendants if, admitting the facts alleged, the court can render
a valid judgment upon the same in accordance with the prayer
therein. A cause of action exist if the following elements are
present, namely: (1) a right in favor of the plaintiff by whatever
means and under whatever law it arises or is created; (2) an
obligation on the part of the named defendant to respect or not to
violate such right; and (3) an act or omission on the part of such
defendant violative of the right of the plaintiff or constituting a
breach of the obligation of the defendant to the plaintiff for which
the latter may maintain an action for recovery of damages (Del
Bros Hotel Corporation v. CA, 210 SCRA 33 [1992]); Development
Bank of the Philippines v. Pundogar, 218 SCRA 118 [1993])
This Court finds, under the foregoing premises, that the complaint
sufficiently alleged an actionable breach on the part of the
defendant Torzuela and respondents SUPERGUARD and/or
SAFEGUARD. It is enough that the complaint alleged that Benigno
Torzuela shot Napoleon Dulay resulting in the latter's death; that
the shooting occurred while Torzuela was on duty; and that either
SUPERGUARD and/or SAFEGUARD was Torzuela's employer and
responsible for his acts. This does not operate however, to
establish that the defendants below are liable. Whether or not the
shooting was actually reckless and wanton or attended by
negligence and whether it was actually done within the scope of
Torzuela's duties; whether the private respondents SUPERGUARD
and/or SAFEGUARD failed to exercise the diligence of a good father
of a family; and whether the defendants are actually liable, are

questions which can be better resolved after trial on the merits

where each party can present evidence to prove their respective
allegations and defenses. In determining whether the
allegations of a complaint are sufficient to support a cause of
action, it must be borne in mind that the complaint does not
have to establish or allege the facts proving the existence of a
cause of action at the outset; this will have to be done at the
trial on the merits of the case (Del Bros Hotel Corporation v.
CA, supra). If the allegations in a complaint can furnish a
sufficient basis by which the complaint can be maintained, the
same should not be dismissed regardless of the defenses that
may be assessed by the defendants (Rava Dev't. Corp. v. CA,
211 SCRA 152 [1992] citing Consolidated Bank & Trust
Corporation v. Court of Appeals, 197 SCRA 663 [1991]). To
sustain a motion to dismiss for lack of cause of action, the
complaint must show that the claim for relief does not exist
rather than that a claim has been defectively stated, is
ambiguous, indefinite or uncertain (Azur v. Provincial Board, 27
SCRA 50 [1969]). Since the petitioners clearly sustained an
injury to their rights under the law, it would be more just to
allow them to present evidence of such injury.
WHEREFORE, premises considered, the petition for review is
hereby GRANTED. The decision of the Court of Appeals as well
as the Order of the Regional Trial Court dated April 13, 1989 are
hereby REVERSED and SET ASIDE. Civil Case No. Q-89-1751 is
remanded to the Regional Trial Court for trial on the merits. This
decision is immediately executory.
SO ORDERED.
Narvasa, C.J., Regalado, Puno and Mendoza, JJ., concur.

24

The Court of First Instance of Manila 1 sentenced petitioner to

pay respondent Rafael Carrascoso P25,000.00 by way of moral
damages; P10,000.00 as exemplary damages; P393.20
representing the difference in fare between first class and
tourist class for the portion of the trip Bangkok-Rome, these
various amounts with interest at the legal rate, from the date of
the filing of the complaint until paid; plus P3,000.00 for
attorneys' fees; and the costs of suit.
On appeal,2 the Court of Appeals slightly reduced the amount of
refund on Carrascoso's plane ticket from P393.20 to P383.10,
and voted to affirm the appealed decision "in all other respects",
with costs against petitioner.
The case is now before us for review on certiorari.
The facts declared by the Court of Appeals as " fully supported
by the evidence of record", are:
Plaintiff, a civil engineer, was a member of a group of 48
Filipino pilgrims that left Manila for Lourdes on March 30,
1958.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-21438

September 28, 1966

AIR FRANCE, petitioner,

vs.
RAFAEL CARRASCOSO and the HONORABLE COURT OF
APPEALS, respondents.
Lichauco, Picazo and Agcaoili for petitioner.
Bengzon Villegas and Zarraga for respondent R. Carrascoso.
SANCHEZ, J.:

On March 28, 1958, the defendant, Air France, through

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

25

1959); and plaintiff reluctantly gave his "first class" seat in

the plane.3
1. The trust of the relief petitioner now seeks is that we review "all
the findings" 4 of respondent Court of Appeals. Petitioner charges
that respondent court failed to make complete findings of fact on
all the issues properly laid before it. We are asked to consider facts
favorable to petitioner, and then, to overturn the appellate court's
decision.
Coming into focus is the constitutional mandate that "No decision
shall be rendered by any court of record without expressing therein
clearly and distinctly the facts and the law on which it is
based". 5 This is echoed in the statutory demand that a judgment
determining the merits of the case shall state "clearly and
distinctly the facts and the law on which it is based"; 6 and that
"Every decision of the Court of Appeals shall contain complete
findings of fact on all issues properly raised before it". 7
A decision with absolutely nothing to support it is a nullity. It is
open to direct attack. 8 The law, however, solely insists that a
decision state the "essential ultimate facts" upon which the court's
conclusion is drawn. 9 A court of justice is not hidebound to write
in its decision every bit and piece of evidence 10 presented by one
party and the other upon the issues raised. Neither is it to be
burdened with the obligation "to specify in the sentence the
facts" which a party "considered as proved". 11 This is but a part
of the mental process from which the Court draws the essential
ultimate facts. A decision is not to be so clogged with details such
that prolixity, if not confusion, may result. So long as the decision
of the Court of Appeals contains the necessary facts to warrant its
conclusions, it is no error for said court to withhold therefrom "any
specific finding of facts with respect to the evidence for the
defense". Because as this Court well observed, "There is no law
that so requires". 12 Indeed, "the mere failure to specify (in the
decision) the contentions of the appellant and the reasons for
refusing to believe them is not sufficient to hold the same contrary
to the requirements of the provisions of law and the Constitution".
It is in this setting that in Manigque, it was held that the mere fact
that the findings "were based entirely on the evidence for the
prosecution without taking into consideration or even mentioning

the appellant's side in the controversy as shown by his own

testimony", would not vitiate the judgment. 13 If the court did
not recite in the decision the testimony of each witness for, or
each item of evidence presented by, the defeated party, it does
not mean that the court has overlooked such testimony or such
item of evidence. 14 At any rate, the legal presumptions are
that official duty has been regularly performed, and that all the
matters within an issue in a case were laid before the court and
passed upon by it. 15
Findings of fact, which the Court of Appeals is required to make,
maybe defined as "the written statement of the ultimate facts
as found by the court ... and essential to support the decision
and judgment rendered thereon". 16They consist of the
court's "conclusions" with respect to the determinative facts in
issue". 17 A question of law, upon the other hand, has been
declared as "one which does not call for an examination of the
probative value of the evidence presented by the parties." 18
2. By statute, "only questions of law may be raised" in an
appeal by certiorari from a judgment of the Court of
Appeals. 19 That judgment is conclusive as to the facts. It is not
appropriately the business of this Court to alter the facts or to
review the questions of fact. 20
With these guideposts, we now face the problem of whether the
findings of fact of the Court of Appeals support its judgment.
3. Was Carrascoso entitled to the first class seat he claims?
It is conceded in all quarters that on March 28, 1958 he paid to
and received from petitioner a first class ticket. But petitioner
asserts that said ticket did not represent the true and complete
intent and agreement of the parties; that said respondent knew
that he did not have confirmed reservations for first class on
any specific flight, although he had tourist class protection; that,
accordingly, the issuance of a first class ticket was no guarantee
that he would have a first class ride, but that such would
depend upon the availability of first class seats.
These are matters which petitioner has thoroughly presented
and discussed in its brief before the Court of Appeals under its
third assignment of error, which reads: "The trial court erred in

26

finding that plaintiff had confirmed reservations for, and a right to,
first class seats on the "definite" segments of his journey,
particularly that from Saigon to Beirut". 21
And, the Court of Appeals disposed of this contention thus:
Defendant seems to capitalize on the argument that the
issuance of a first-class ticket was no guarantee that the
passenger to whom the same had been issued, would be
accommodated in the first-class compartment, for as in the
case of plaintiff he had yet to make arrangements upon
arrival at every station for the necessary first-class
reservation. We are not impressed by such a reasoning. We
cannot understand how a reputable firm like defendant
airplane company could have the indiscretion to give out
tickets it never meant to honor at all. It received the
corresponding amount in payment of first-class tickets and
yet it allowed the passenger to be at the mercy of its
employees. It is more in keeping with the ordinary course of
business that the company should know whether or riot the
tickets it issues are to be honored or not.22
Not that the Court of Appeals is alone. The trial court similarly
disposed of petitioner's contention, thus:
On the fact that plaintiff paid for, and was issued a "First class"
ticket, there can be no question. Apart from his testimony, see
plaintiff's Exhibits "A", "A-1", "B", "B-1," "B-2", "C" and "C-1", and
defendant's own witness, Rafael Altonaga, confirmed plaintiff's
testimony and testified as follows:
Q. In these tickets there are marks "O.K." From what you
know, what does this OK mean?
A. That the space is confirmed.
Q. Confirmed for first class?
A. Yes, "first class". (Transcript, p. 169)
xxx

xxx

xxx

Defendant tried to prove by the testimony of its witnesses Luis

Zaldariaga and Rafael Altonaga that although plaintiff paid for, and
was issued a "first class" airplane ticket, the ticket was subject to

confirmation in Hongkong. The court cannot give credit to the

testimony of said witnesses. Oral evidence cannot prevail over
written evidence, and plaintiff's Exhibits "A", "A-l", "B", "B-l", "C"
and "C-1" belie the testimony of said witnesses, and clearly
show that the plaintiff was issued, and paid for, a first class
ticket without any reservation whatever.
Furthermore, as hereinabove shown, defendant's own witness
Rafael Altonaga testified that the reservation for a "first class"
accommodation for the plaintiff was confirmed. The court
cannot believe that after such confirmation defendant had a
verbal understanding with plaintiff that the "first class" ticket
issued to him by defendant would be subject to confirmation in
Hongkong. 23
We have heretofore adverted to the fact that except for a slight
difference of a few pesos in the amount refunded on
Carrascoso's ticket, the decision of the Court of First Instance
was affirmed by the Court of Appeals in all other respects. We
hold the view that such a judgment of affirmance has merged
the judgment of the lower court. 24Implicit in that affirmance is
a determination by the Court of Appeals that the proceeding in
the Court of First Instance was free from prejudicial error and
"all questions raised by the assignments of error and all
questions that might have been raised are to be regarded as
finally adjudicated against the appellant". So also, the judgment
affirmed "must be regarded as free from all error". 25 We
reached this policy construction because nothing in the decision
of the Court of Appeals on this point would suggest that its
findings of fact are in any way at war with those of the trial
court. Nor was said affirmance by the Court of Appeals upon a
ground or grounds different from those which were made the
basis of the conclusions of the trial court. 26
If, as petitioner underscores, a first-class-ticket holder is not
entitled to a first class seat, notwithstanding the fact that seat
availability in specific flights is therein confirmed, then an air
passenger is placed in the hollow of the hands of an airline.
What security then can a passenger have? It will always be an
easy matter for an airline aided by its employees, to strike out
the very stipulations in the ticket, and say that there was a

27

verbal agreement to the contrary. What if the passenger had a

schedule to fulfill? We have long learned that, as a rule, a written
document speaks a uniform language; that spoken word could be
notoriously unreliable. If only to achieve stability in the relations
between passenger and air carrier, adherence to the ticket so
issued is desirable. Such is the case here. The lower courts refused
to believe the oral evidence intended to defeat the covenants in
the ticket.
The foregoing are the considerations which point to the conclusion
that there are facts upon which the Court of Appeals predicated
the finding that respondent Carrascoso had a first class ticket and
was entitled to a first class seat at Bangkok, which is a stopover in
the Saigon to Beirut leg of the flight. 27 We perceive no "welter of
distortions by the Court of Appeals of petitioner's statement of its
position", as charged by petitioner. 28 Nor do we subscribe to
petitioner's accusation that respondent Carrascoso "surreptitiously
took a first class seat to provoke an issue". 29 And this because, as
petitioner states, Carrascoso went to see the Manager at his office
in Bangkok "to confirm my seat and because from Saigon I was
told again to see the Manager". 30 Why, then, was he allowed to
take a first class seat in the plane at Bangkok, if he had no seat?
Or, if another had a better right to the seat?
4. Petitioner assails respondent court's award of moral damages.
Petitioner's trenchant claim is that Carrascoso's action is planted
upon breach of contract; that to authorize an award for moral
damages there must be an averment of fraud or bad faith;31 and
that the decision of the Court of Appeals fails to make a finding of
bad faith. The pivotal allegations in the complaint bearing on this
issue are:
3. That ... plaintiff entered into a contract of air carriage
with the Philippine Air Lines for a valuable consideration,
the latter acting as general agents for and in behalf of the
defendant, under which said contract, plaintiff was entitled
to, as defendant agreed to furnish plaintiff, First Class
passage on defendant's plane during the entire duration of
plaintiff's tour of Europe with Hongkong as starting point up
to and until plaintiff's return trip to Manila, ... .

4. That, during the first two legs of the trip from

Hongkong to Saigon and from Saigon to Bangkok,
defendant furnished to the plaintiff First Class
accommodation but only after protestations, arguments
and/or insistence were made by the plaintiff with
defendant's employees.
5. That finally, defendant failed to provide First Class
passage, but instead furnished plaintiff only TouristClass
accommodations from Bangkok to Teheran and/or
Casablanca, ... the plaintiff has been compelled by
defendant's employees to leave the First Class
accommodation berths at Bangkok after he was already
seated.
6. That consequently, the plaintiff, desiring no repetition
of the inconvenience and embarrassments brought by
defendant's breach of contract was forced to take a Pan
American World Airways plane on his return trip from
Madrid to Manila.32
xxx

xxx

xxx

2. That likewise, as a result of defendant's failure to furnish First

Class
accommodations
aforesaid,
plaintiff
suffered
inconveniences, embarrassments, and humiliations, thereby
causing plaintiff mental anguish, serious anxiety, wounded
feelings, social humiliation, and the like injury, resulting in moral
damages in the amount of P30,000.00. 33
xxx

xxx

xxx

The foregoing, in our opinion, substantially aver: First, That

there was a contract to furnish plaintiff a first class passage
covering, amongst others, the Bangkok-Teheran leg; Second,
That said contract was breached when petitioner failed to
furnish first class transportation at Bangkok; and Third, that
there was bad faith when petitioner's employee compelled
Carrascoso to leave his first class accommodation berth "after
he was already, seated" and to take a seat in the tourist class,
by reason of which he suffered inconvenience, embarrassments
and humiliations, thereby causing him mental anguish, serious
anxiety, wounded feelings and social humiliation, resulting in

28

moral damages. It is true that there is no specific mention of the

term bad faith in the complaint. But, the inference of bad faith is
there, it may be drawn from the facts and circumstances set forth
therein. 34 The contract was averred to establish the relation
between the parties. But the stress of the action is put on wrongful
expulsion.
Quite apart from the foregoing is that (a) right the start of the trial,
respondent's counsel placed petitioner on guard on what
Carrascoso intended to prove: That while sitting in the plane in
Bangkok, Carrascoso was oustedby petitioner's manager who gave
his seat to a white man; 35 and (b) evidence of bad faith in the
fulfillment of the contract was presented without objection on the
part of the petitioner. It is, therefore, unnecessary to inquire as to
whether or not there is sufficient averment in the complaint to
justify an award for moral damages. Deficiency in the complaint, if
any, was cured by the evidence. An amendment thereof to
conform to the evidence is not even required. 36 On the question
of bad faith, the Court of Appeals declared:
That the plaintiff was forced out of his seat in the first class
compartment of the plane belonging to the defendant Air
France while at Bangkok, and was transferred to the tourist
class not only without his consent but against his will, has
been sufficiently established by plaintiff in his testimony
before the court, corroborated by the corresponding entry
made by the purser of the plane in his notebook which
notation reads as follows:
"First-class passenger was forced to go to the tourist
class against his will, and that the captain refused to
intervene",
and by the testimony of an eye-witness, Ernesto G. Cuento,
who was a co-passenger. The captain of the plane who was
asked by the manager of defendant company at Bangkok to
intervene even refused to do so. It is noteworthy that no
one on behalf of defendant ever contradicted or denied this
evidence for the plaintiff. It could have been easy for
defendant to present its manager at Bangkok to testify at
the trial of the case, or yet to secure his disposition; but
defendant did neither. 37

The Court of appeals further stated

Neither is there evidence as to whether or not a prior
reservation was made by the white man. Hence, if the
employees of the defendant at Bangkok sold a first-class
ticket to him when all the seats had already been taken,
surely the plaintiff should not have been picked out as
the one to suffer the consequences and to be subjected
to the humiliation and indignity of being ejected from his
seat in the presence of others. Instead of explaining to
the white man the improvidence committed by
defendant's employees, the manager adopted the more
drastic step of ousting the plaintiff who was then safely
ensconsced in his rightful seat. We are strengthened in
our belief that this probably was what happened there,
by the testimony of defendant's witness Rafael Altonaga
who, when asked to explain the meaning of the letters
"O.K." appearing on the tickets of plaintiff, said "that the
space is confirmed for first class. Likewise, Zenaida
Faustino, another witness for defendant, who was the
chief of the Reservation Office of defendant, testified as
follows:
"Q How does the person in the ticket-issuing office
know what reservation the passenger has
arranged with you?
A They call us up by phone and ask for the
confirmation." (t.s.n., p. 247, June 19, 1959)
In this connection, we quote with approval what the trial
Judge has said on this point:
Why did the, using the words of witness Ernesto
G. Cuento, "white man" have a "better right" to
the seat occupied by Mr. Carrascoso? The record
is silent. The defendant airline did not prove "any
better", nay, any right on the part of the "white
man" to the "First class" seat that the plaintiff was
occupying and for which he paid and was issued a
corresponding "first class" ticket.

29

If there was a justified reason for the action of the

defendant's Manager in Bangkok, the defendant
could have easily proven it by having taken the
testimony of the said Manager by deposition, but
defendant did not do so; the presumption is that
evidence willfully suppressed would be adverse if
produced [Sec. 69, par (e), Rules of Court]; and,
under the circumstances, the Court is constrained to
find, as it does find, that the Manager of the
defendant airline in Bangkok not merely asked but
threatened the plaintiff to throw him out of the plane
if he did not give up his "first class" seat because the
said Manager wanted to accommodate, using the
words of the witness Ernesto G. Cuento, the "white
man".38
It is really correct to say that the Court of Appeals in the
quoted portion first transcribed did not use the term "bad
faith". But can it be doubted that the recital of facts therein
points to bad faith? The manager not only prevented
Carrascoso from enjoying his right to a first class seat;
worse, he imposed his arbitrary will; he forcibly ejected him
from his seat, made him suffer the humiliation of having to
go to the tourist class compartment - just to give way to
another passenger whose right thereto has not been
established. Certainly, this is bad faith. Unless, of course,
bad faith has assumed a meaning different from what is
understood in law. For, "bad faith" contemplates a "state of
mind affirmatively operating with furtive design or with
some motive of self-interest or will or for ulterior
purpose." 39
And if the foregoing were not yet sufficient, there is the
express finding of bad faith in the judgment of the Court of
First Instance, thus:
The evidence shows that the defendant violated its
contract of transportation with plaintiff in bad faith,
with the aggravating circumstances that defendant's
Manager in Bangkok went to the extent of
threatening the plaintiff in the presence of many

passengers to have him thrown out of the airplane

to give the "first class" seat that he was
occupying to, again using the words of the
witness Ernesto G. Cuento, a "white man" whom
he
(defendant's
Manager)
wished
to
accommodate, and the defendant has not proven
that this "white man" had any "better right" to
occupy the "first class" seat that the plaintiff was
occupying, duly paid for, and for which the
corresponding "first class" ticket was issued by
the defendant to him.40
5. The responsibility of an employer for the tortious act of its
employees need not be essayed. It is well settled in law. 41 For
the willful malevolent act of petitioner's manager, petitioner, his
employer, must answer. Article 21 of the Civil Code says:
ART. 21. Any person who willfully causes loss or injury to
another in a manner that is contrary to morals, good
customs or public policy shall compensate the latter for
the damage.
In parallel circumstances, we applied the foregoing legal
precept; and, we held that upon the provisions of Article 2219
(10), Civil Code, moral damages are recoverable. 42
6. A contract to transport passengers is quite different in kind
and degree from any other contractual relation. 43And this,
because of the relation which an air-carrier sustains with the
public. Its business is mainly with the travelling public. It invites
people to avail of the comforts and advantages it offers. The
contract of air carriage, therefore, generates a relation attended
with a public duty. Neglect or malfeasance of the carrier's
employees, naturally, could give ground for an action for
damages.
Passengers do not contract merely for transportation. They have
a right to be treated by the carrier's employees with kindness,
respect, courtesy and due consideration. They are entitled to be
protected against personal misconduct, injurious language,
indignities and abuses from such employees. So it is, that any
rule or discourteous conduct on the part of employees towards

30

a passenger gives the latter an action for damages against the

carrier. 44
Thus, "Where a steamship company 45 had accepted a
passenger's check, it was a breach of contract and a tort, giving a
right of action for its agent in the presence of third persons to
falsely notify her that the check was worthless and demand
payment under threat of ejection, though the language used was
not insulting and she was not ejected." 46 And this, because,
although the relation of passenger and carrier is "contractual both
in origin and nature" nevertheless "the act that breaks the contract
may be also a tort". 47 And in another case, "Where a passenger
on a railroad train, when the conductor came to collect his fare
tendered him the cash fare to a point where the train was
scheduled not to stop, and told him that as soon as the train
reached such point he would pay the cash fare from that point to
destination, there was nothing in the conduct of the passenger
which justified the conductor in using insulting language to him, as
by calling him a lunatic," 48 and the Supreme Court of South
Carolina there held the carrier liable for the mental suffering of
said passenger.1awphl.nt
Petitioner's contract with Carrascoso is one attended with public
duty. The stress of Carrascoso's action as we have said, is placed
upon his wrongful expulsion. This is a violation of public duty by
the petitioner air carrier a case of quasi-delict. Damages are
proper.
7. Petitioner draws our attention to respondent Carrascoso's
testimony, thus
Q You mentioned about an attendant. Who is that attendant
and purser?
A When we left already that was already in the trip I
could not help it. So one of the flight attendants approached
me and requested from me my ticket and I said, What for?
and she said, "We will note that you transferred to the
tourist class". I said, "Nothing of that kind. That is
tantamount to accepting my transfer." And I also said, "You
are not going to note anything there because I am
protesting to this transfer".

Q Was she able to note it?

A No, because I did not give my ticket.
Q About that purser?
A Well, the seats there are so close that you feel
uncomfortable and you don't have enough leg room, I
stood up and I went to the pantry that was next to me
and the purser was there. He told me, "I have recorded
the incident in my notebook." He read it and translated it
to me because it was recorded in French "First class
passenger was forced to go to the tourist class against
his will, and that the captain refused to intervene."
Mr. VALTE
I move to strike out the last part of the testimony of the
witness because the best evidence would be the notes.
Your Honor.
COURT
I will allow that as part of his testimony. 49
Petitioner charges that the finding of the Court of Appeals that
the purser made an entry in his notebook reading "First class
passenger was forced to go to the tourist class against his will,
and that the captain refused to intervene" is predicated upon
evidence [Carrascoso's testimony above] which is incompetent.
We do not think so. The subject of inquiry is not the entry, but
the ouster incident. Testimony on the entry does not come
within the proscription of the best evidence rule. Such
testimony is admissible. 49a
Besides, from a reading of the transcript just quoted, when the
dialogue happened, the impact of the startling occurrence was
still fresh and continued to be felt. The excitement had not as
yet died down. Statements then, in this environment, are
admissible as part of the res gestae. 50 For, they grow "out of
the nervous excitement and mental and physical condition of
the declarant". 51 The utterance of the purser regarding his
entry in the notebook was spontaneous, and related to the
circumstances of the ouster incident. Its trustworthiness has

31

been guaranteed. 52 It thus escapes the operation of the hearsay

rule. It forms part of the res gestae.
At all events, the entry was made outside the Philippines. And, by
an employee of petitioner. It would have been an easy matter for
petitioner to have contradicted Carrascoso's testimony. If it were
really true that no such entry was made, the deposition of the
purser could have cleared up the matter.
We, therefore, hold that the transcribed testimony of Carrascoso is
admissible in evidence.
8. Exemplary damages are well awarded. The Civil Code gives the
court ample power to grant exemplary damages in contracts
and quasi- contracts. The only condition is that defendant should
have "acted in a wanton, fraudulent, reckless, oppressive, or
malevolent manner." 53 The manner of ejectment of respondent
Carrascoso from his first class seat fits into this legal precept. And
this, in addition to moral damages.54
9. The right to attorney's fees is fully established. The grant of
exemplary damages justifies a similar judgment for attorneys' fees.
The least that can be said is that the courts below felt that it is but
just and equitable that attorneys' fees be given. 55 We do not
intend to break faith with the tradition that discretion well
exercised as it was here should not be disturbed.
10. Questioned as excessive are the amounts decreed by both the
trial court and the Court of Appeals, thus: P25,000.00 as moral
damages; P10,000.00, by way of exemplary damages, and
P3,000.00 as attorneys' fees. The task of fixing these amounts is
primarily with the trial court. 56 The Court of Appeals did not
interfere with the same. The dictates of good sense suggest that
we give our imprimatur thereto. Because, the facts and
circumstances point to the reasonableness thereof.57
On balance, we say that the judgment of the Court of Appeals does
not suffer from reversible error. We accordingly vote to affirm the
same. Costs against petitioner. So ordered.
Concepcion, C.J., Reyes, J.B.L., Barrera, Dizon, Regala, Makalintal,
Zaldivar and Castro, JJ., concur.
Bengzon, J.P., J., took no part.

Footnotes
1Civil Case No. 38810, "Rafael Carrascoso, plaintiff, vs.
Air France, defendant," R.A., pp. 79-80.
2C.A.-G.R. No. 26522-R, "Rafael Carrascoso, plaintiffappellee, vs. Air France, defendant-appellant."
3Appendix A, petitioner's brief, pp 146-147. See also
R.A., pp. 66-67.
4Petitioner's brief, p. 142.
5Section 12, Article VIII, Constitution.
6Section 1, Rule 36, Rules of Court. See also Section 2,
Rule 120, in reference to judgments in criminal cases.
7Sec. 4. Rule 51; Sec. 33(2), Judiciary Act of 1948, as
amended.
8Edwards vs. McCoy, 22 Phil. 598, 601; Yangco vs. Court
of First Instance of Manila, et al., 29 Phil. 183, 191.
9Braga vs. Millora, 3 Phil. 458, 465.
10Id.
11Aringo vs. Arena 14 Phil. 263, 266; emphasis supplied.
12Reyes vs. People. 71 Phil. 598, 600.
13People vs. Manigque 35 O.G., No. 94, pp. 1682, 1683,
citing Section 133 of the Code of Civil Procedure and
Section 12, Art. VIII, Constitution, supra.
14Badger et al. vs. Boyd, 65 S.W. (2d), pp. 601, 610.
15Section 5, (m) and (o), Rule 131, Rules of Court.
16In re Good's Estate, 266 P. (2d), pp. 719, 729.
17Badger et al. vs. Boyd, supra.
18Goduco vs. Court of Appeals, et al., L-17647, February
28, 1964.
19Section 2, Rule 45, Rules of Court, formerly Section 2,
Rule 46 of the Rules of Court.

32

20Medel, et al. vs. Calasanz, et al. L-14835, August 31,

1960; Astraquillo, et al. vs. Javier, et al., L-20034, January
30, 1965.
21Petitioner's brief in the Court of Appeals, pp. 82-98.
22Decision of the Court of Appeals, Appendix A, petitioner's
brief, pp. 148-149.
23R.A., pp. 67, 73.
245 B C.J.S., p. 295; 3 Am. Jur. p. 678.
253 Am. Jur., pp. 677-678.
26See Garcia Valdez vs. Seterana Tuason, 40 Phil, 943, 951.
27Carrascoso's ticket, according to petitioner (brief, pp. 78), shows:

34Copeland vs. Dunehoo et al., 138 S.E., 267, 270. See

also 25 C.J.S., pp. 758-759; 15 Am. Jur., pp. 766-767.
35Statement of Attorney Villegas for respondent
Carrascoso in open court. Respondent's brief, p. 33.
36Section 5, Rule 10, Rules of Court, in part reads: "SEC.
5. Amendment to conform to or authorize presentation of
evidence.When issues not raised by the pleadings are
tried by express or implied consent of the parties, they
shall be treated in all respects, as if they had been raised
in the pleadings. Such amendment of the pleadings as
may be necessary to cause them to conform to the
evidence and to raise these issues may be made upon
motion of any party at any time, even after judgment;
but failure so to amend does not affect the result of the
trial of these issues ..."; Co Tiamco vs. Diaz, etc., et al.,
75 Phil. 672, 679; J.M. Tuason & Co., Inc., etc. vs.
Bolanos, 95 Phil. 106, 110.

Carrier

Flight
No.

Date of
Departure

PAL

300A

March 30

37Decision, Court of Appeals, Appendix A of petitioner's

brief, pp. 147-148.

VN(Air
693
March 31
Vietnam)
AF(Air
3. Saigon to Beirut
245
March 31
France)
28Petitioner's brief, p. 50; see also id., pp. 37 and 46.

38Decision of the Court of Appeals, Appendix A of

petitioner's brief, pp. 147-151.

Segment or leg
1. Manila to
Hongkong
2. Hongkong to
Saigon

29Id., p. 103.
30Ibid., p. 102.
31Article 2220, Civil Code reads: "Willful injury to property
may be a legal ground for awarding moral damages if the
court should find that, under the circumstances, such
damages are justly due. The same rule applies to breaches
of contract where the defendant acted fraudulently or in
bad faith."
32R.A., p. 2-4; emphasis supplied.
33R.A., P. 5; second cause of action.

39Words & Phrases, Perm. Ed., Vol. 5, p. 13, citing

Warfield Natural Gas Co. vs. Allen, 59 S.W. (2d) 534, 538.
40R.A., p.74; emphasis supplied.
41Article 2180, Civil Code.
42Philippine Refining Co. vs. Garcia, et al., L-21871 and
L-21962, September 27, 1966.
43See Section 4, Chapter 3, Title VIII, Civil Code.
444 R.C.L., pp. 1174-1175.
45An air carrier is a common carrier; and air
transportation is similar or analogous to land and water
transportation. Mendoza vs. Philippine Air Lines, Inc., 90
Phil. 836, 841-842.
46Austro-American S.S. Co. vs. Thomas, 248 F. 231.

33

47Id., p. 233.
48Lipman vs. Atlantic Coast Line R. Co., 93 S.E. 714, 716.
49Petitioner's brief, pp, 104-105.
49aV Moran, Comments on the Rules of Court, 1963 ed., p.
76.
50Section 36, Rule 130, Rules of Court.
51IV Martin, Rules of Court in the Philippines, 1963 ed., p.
324.
52Ibid.
53Article 2232, Civil Code.
54Article 2229, Civil Code.
55Article 2208, (1) and (11), Civil Code.
56Coleongco vs. Claparols, L-18616, March 31, 1964;
Corpus vs. Cuaderno, et al., L-23721, March 31, 1965.
57Cf. Yutuk vs. Manila Electric Company, L-13016, May 31,
1961; Lopez et al. vs. Pan American World Airways, L-22415,
March 30, 1966.

Republic of the Philippines

SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 188288

January 16, 2012

34

SPOUSES FERNANDO and LOURDES VILORIA, Petitioners,

vs.
CONTINENTAL AIRLINES, INC.,
DECISION
REYES, J.:
This is a petition for review under Rule 45 of the Rules of Court
from the January 30, 2009 Decision 1 of the Special Thirteenth
Division of the Court of Appeals (CA) in CA-G.R. CV No. 88586
entitled "Spouses Fernando and Lourdes Viloria v. Continental
Airlines, Inc.," the dispositive portion of which states:
WHEREFORE, the Decision of the Regional Trial Court, Branch 74,
dated 03 April 2006, awarding US$800.00 or its peso equivalent at
the time of payment, plus legal rate of interest from 21 July 1997
until fully paid, [P]100,000.00 as moral damages, [P]50,000.00 as
exemplary damages, [P]40,000.00 as attorneys fees and costs of
suit to plaintiffs-appellees is hereby REVERSED and SET ASIDE.
Defendant-appellants counterclaim is DENIED.
Costs against plaintiffs-appellees.
SO ORDERED.2
On April 3, 2006, the Regional Trial Court of Antipolo City, Branch
74 (RTC) rendered a Decision, giving due course to the complaint
for sum of money and damages filed by petitioners Fernando
Viloria (Fernando) and Lourdes Viloria (Lourdes), collectively called
Spouses Viloria, against respondent Continental Airlines, Inc. (CAI).
As culled from the records, below are the facts giving rise to such
complaint.
On or about July 21, 1997 and while in the United States, Fernando
purchased for himself and his wife, Lourdes, two (2) round trip
airline tickets from San Diego, California to Newark, New Jersey on
board Continental Airlines. Fernando purchased the tickets at
US$400.00 each from a travel agency called "Holiday Travel" and
was attended to by a certain Margaret Mager (Mager). According to
Spouses Viloria, Fernando agreed to buy the said tickets after
Mager informed them that there were no available seats at Amtrak,
an intercity passenger train service provider in the United States.

Per the tickets, Spouses Viloria were scheduled to leave for

Newark on August 13, 1997 and return to San Diego on August
21, 1997.
Subsequently, Fernando requested Mager to reschedule their
flight to Newark to an earlier date or August 6, 1997. Mager
informed him that flights to Newark via Continental Airlines
were already fully booked and offered the alternative of a round
trip flight via Frontier Air. Since flying with Frontier Air called for
a higher fare of US$526.00 per passenger and would mean
traveling by night, Fernando opted to request for a refund.
Mager, however, denied his request as the subject tickets are
non-refundable and the only option that Continental Airlines can
offer is the re-issuance of new tickets within one (1) year from
the date the subject tickets were issued. Fernando decided to
reserve two (2) seats with Frontier Air.
As he was having second thoughts on traveling via Frontier Air,
Fernando went to the Greyhound Station where he saw an
Amtrak station nearby. Fernando made inquiries and was told
that there are seats available and he can travel on Amtrak
anytime and any day he pleased. Fernando then purchased two
(2) tickets for Washington, D.C.
From Amtrak, Fernando went to Holiday Travel and confronted
Mager with the Amtrak tickets, telling her that she had misled
them into buying the Continental Airlines tickets by
misrepresenting that Amtrak was already fully booked. Fernando
reiterated his demand for a refund but Mager was firm in her
position that the subject tickets are non-refundable.
Upon returning to the Philippines, Fernando sent a letter to CAI
on February 11, 1998, demanding a refund and alleging that
Mager had deluded them into purchasing the subject tickets. 3
In a letter dated February 24, 1998, Continental Micronesia
informed Fernando that his complaint had been referred to the
Customer Refund Services of Continental Airlines at Houston,
Texas.4
In a letter dated March 24, 1998, Continental Micronesia denied
Fernandos request for a refund and advised him that he may

35

take the subject tickets to any Continental ticketing location for the
re-issuance of new tickets within two (2) years from the date they
were issued. Continental Micronesia informed Fernando that the
subject tickets may be used as a form of payment for the purchase
of another Continental ticket, albeit with a re-issuance fee. 5
On June 17, 1999, Fernando went to Continentals ticketing office
at Ayala Avenue, Makati City to have the subject tickets replaced
by a single round trip ticket to Los Angeles, California under his
name. Therein, Fernando was informed that Lourdes ticket was
non-transferable, thus, cannot be used for the purchase of a ticket
in his favor. He was also informed that a round trip ticket to Los
Angeles was US$1,867.40 so he would have to pay what will not be
covered by the value of his San Diego to Newark round trip ticket.
In a letter dated June 21, 1999, Fernando demanded for the refund
of the subject tickets as he no longer wished to have them
replaced. In addition to the dubious circumstances under which the
subject tickets were issued, Fernando claimed that CAIs act of
charging him with US$1,867.40 for a round trip ticket to Los
Angeles, which other airlines priced at US$856.00, and refusal to
allow him to use Lourdes ticket, breached its undertaking under its
March 24, 1998 letter.6
On September 8, 2000, Spouses Viloria filed a complaint against
CAI, praying that CAI be ordered to refund the money they used in
the purchase of the subject tickets with legal interest from July 21,
1997 and to pay P1,000,000.00 as moral damages, P500,000.00 as
exemplary damages and P250,000.00 as attorneys fees.7
CAI interposed the following defenses: (a) Spouses Viloria have no
right to ask for a refund as the subject tickets are non-refundable;
(b) Fernando cannot insist on using the ticket in Lourdes name for
the purchase of a round trip ticket to Los Angeles since the same is
non-transferable; (c) as Mager is not a CAI employee, CAI is not
liable for any of her acts; (d) CAI, its employees and agents did not
act in bad faith as to entitle Spouses Viloria to moral and
exemplary damages and attorneys fees. CAI also invoked the
following clause printed on the subject tickets:
3. To the extent not in conflict with the foregoing carriage and
other services performed by each carrier are subject to: (i)

provisions contained in this ticket, (ii) applicable tariffs, (iii)

carriers conditions of carriage and related regulations which are
made part hereof (and are available on application at the offices
of carrier), except in transportation between a place in the
United States or Canada and any place outside thereof to which
tariffs in force in those countries apply. 8
According to CAI, one of the conditions attached to their
contract of carriage is the non-transferability and nonrefundability of the subject tickets.
The RTCs Ruling
Following a full-blown trial, the RTC rendered its April 3, 2006
Decision, holding that Spouses Viloria are entitled to a refund in
view of Magers misrepresentation in obtaining their consent in
the purchase of the subject tickets. 9The relevant portion of the
April 3, 2006 Decision states:
Continental Airlines agent Ms. Mager was in bad faith when she
was less candid and diligent in presenting to plaintiffs spouses
their booking options. Plaintiff Fernando clearly wanted to travel
via AMTRAK, but defendants agent misled him into purchasing
Continental Airlines tickets instead on the fraudulent
misrepresentation that Amtrak was fully booked. In fact,
defendant Airline did not specifically denied (sic) this allegation.
Plainly, plaintiffs spouses, particularly plaintiff Fernando, were
tricked into buying Continental Airline tickets on Ms. Magers
misleading misrepresentations. Continental Airlines agent Ms.
Mager further relied on and exploited plaintiff Fernandos need
and told him that they must book a flight immediately or risk
not being able to travel at all on the couples preferred date.
Unfortunately, plaintiffs spouses fell prey to the airlines and its
agents unethical tactics for baiting trusting customers."10
Citing Articles 1868 and 1869 of the Civil Code, the RTC ruled
that Mager is CAIs agent, hence, bound by her bad faith and
misrepresentation. As far as the RTC is concerned, there is no
issue as to whether Mager was CAIs agent in view of CAIs
implied recognition of her status as such in its March 24, 1998
letter.

36

The act of a travel agent or agency being involved here, the

following are the pertinent New Civil Code provisions on agency:
Art. 1868. By the contract of agency a person binds himself to
render some service or to do something in representation or on
behalf of another, with the consent or authority of the latter.
Art. 1869. Agency may be express, or implied from the acts of the
principal, from his silence or lack of action, or his failure to
repudiate the agency, knowing that another person is acting on his
behalf without authority.
Agency may be oral, unless the law requires a specific form.
As its very name implies, a travel agency binds itself to render
some service or to do something in representation or on behalf of
another, with the consent or authority of the latter. This court takes
judicial notice of the common services rendered by travel agencies
that represent themselves as such, specifically the reservation and
booking of local and foreign tours as well as the issuance of airline
tickets for a commission or fee.
The services rendered by Ms. Mager of Holiday Travel agency to
the plaintiff spouses on July 21, 1997 were no different from those
offered in any other travel agency. Defendant airline impliedly if
not expressly acknowledged its principal-agent relationship with
Ms. Mager by its offer in the letter dated March 24, 1998 an
obvious attempt to assuage plaintiffs spouses hurt feelings.11
Furthermore, the RTC ruled that CAI acted in bad faith in reneging
on its undertaking to replace the subject tickets within two (2)
years from their date of issue when it charged Fernando with the
amount of US$1,867.40 for a round trip ticket to Los Angeles and
when it refused to allow Fernando to use Lourdes ticket.
Specifically:
Tickets may be reissued for up to two years from the original date
of issue. When defendant airline still charged plaintiffs spouses
US$1,867.40 or more than double the then going rate of
US$856.00 for the unused tickets when the same were presented
within two (2) years from date of issue, defendant airline exhibited
callous treatment of passengers.12

The Appellate Courts Ruling

On appeal, the CA reversed the RTCs April 3, 2006 Decision,
holding that CAI cannot be held liable for Magers act in the
absence of any proof that a principal-agent relationship existed
between CAI and Holiday Travel. According to the CA, Spouses
Viloria, who have the burden of proof to establish the fact of
agency, failed to present evidence demonstrating that Holiday
Travel is CAIs agent. Furthermore, contrary to Spouses Vilorias
claim, the contractual relationship between Holiday Travel and
CAI is not an agency but that of a sale.
Plaintiffs-appellees assert that Mager was a sub-agent of
Holiday Travel who was in turn a ticketing agent of Holiday
Travel who was in turn a ticketing agent of Continental Airlines.
Proceeding from this premise, they contend that Continental
Airlines should be held liable for the acts of Mager. The trial
court held the same view.
We do not agree. By the contract of agency, a person binds
him/herself to render some service or to do something in
representation or on behalf of another, with the consent or
authority of the latter. The elements of agency are: (1) consent,
express or implied, of the parties to establish the relationship;
(2) the object is the execution of a juridical act in relation to a
third person; (3) the agent acts as a representative and not for
him/herself; and (4) the agent acts within the scope of his/her
authority. As the basis of agency is representation, there must
be, on the part of the principal, an actual intention to appoint,
an intention naturally inferable from the principals words or
actions. In the same manner, there must be an intention on the
part of the agent to accept the appointment and act upon it.
Absent such mutual intent, there is generally no agency. It is
likewise a settled rule that persons dealing with an assumed
agent are bound at their peril, if they would hold the principal
liable, to ascertain not only the fact of agency but also the
nature and extent of authority, and in case either is
controverted, the burden of proof is upon them to establish it.
Agency is never presumed, neither is it created by the mere use
of the word in a trade or business name. We have perused the
evidence and documents so far presented. We find nothing

37

except bare allegations of plaintiffs-appellees that Mager/Holiday

Travel was acting in behalf of Continental Airlines. From all sides of
legal prism, the transaction in issue was simply a contract of sale,
wherein Holiday Travel buys airline tickets from Continental Airlines
and then, through its employees, Mager included, sells it at a
premium to clients.13
The CA also ruled that refund is not available to Spouses Viloria as
the word "non-refundable" was clearly printed on the face of the
subject tickets, which constitute their contract with CAI. Therefore,
the grant of their prayer for a refund would violate the proscription
against impairment of contracts.
Finally, the CA held that CAI did not act in bad faith when they
charged Spouses Viloria with the higher amount of US$1,867.40 for
a round trip ticket to Los Angeles. According to the CA, there is no
compulsion for CAI to charge the lower amount of US$856.00,
which Spouses Viloria claim to be the fee charged by other airlines.
The matter of fixing the prices for its services is CAIs prerogative,
which Spouses Viloria cannot intervene. In particular:
It is within the respective rights of persons owning and/or
operating business entities to peg the premium of the services and
items which they provide at a price which they deem fit, no matter
how expensive or exhorbitant said price may seem vis--vis those
of the competing companies. The Spouses Viloria may not
intervene with the business judgment of Continental Airlines.14
The Petitioners Case
In this Petition, this Court is being asked to review the findings and
conclusions of the CA, as the latters reversal of the RTCs April 3,
2006 Decision allegedly lacks factual and legal bases. Spouses
Viloria claim that CAI acted in bad faith when it required them to
pay a higher amount for a round trip ticket to Los Angeles
considering CAIs undertaking to re-issue new tickets to them
within the period stated in their March 24, 1998 letter. CAI likewise
acted in bad faith when it disallowed Fernando to use Lourdes
ticket to purchase a round trip to Los Angeles given that there is
nothing in Lourdes ticket indicating that it is non-transferable. As a
common carrier, it is CAIs duty to inform its passengers of the
terms and conditions of their contract and passengers cannot be

bound by such terms and conditions which they are not made
aware of. Also, the subject contract of carriage is a contract of
adhesion; therefore, any ambiguities should be construed
against CAI. Notably, the petitioners are no longer questioning
the validity of the subject contracts and limited its claim for a
refund on CAIs alleged breach of its undertaking in its March
24, 1998 letter.
The Respondents Case
In its Comment, CAI claimed that Spouses Vilorias allegation of
bad faith is negated by its willingness to issue new tickets to
them and to credit the value of the subject tickets against the
value of the new ticket Fernando requested. CAI argued that
Spouses Vilorias sole basis to claim that the price at which CAI
was willing to issue the new tickets is unconscionable is a piece
of hearsay evidence an advertisement appearing on a
newspaper stating that airfares from Manila to Los Angeles or
San Francisco cost US$818.00.15 Also, the advertisement
pertains to airfares in September 2000 and not to airfares
prevailing in June 1999, the time when Fernando asked CAI to
apply the value of the subject tickets for the purchase of a new
one.16 CAI likewise argued that it did not undertake to protect
Spouses Viloria from any changes or fluctuations in the prices of
airline tickets and its only obligation was to apply the value of
the subject tickets to the purchase of the newly issued tickets.
With respect to Spouses Vilorias claim that they are not aware
of CAIs restrictions on the subject tickets and that the terms
and conditions that are printed on them are ambiguous, CAI
denies any ambiguity and alleged that its representative
informed Fernando that the subject tickets are non-transferable
when he applied for the issuance of a new ticket. On the other
hand, the word "non-refundable" clearly appears on the face of
the subject tickets.
CAI also denies that it is bound by the acts of Holiday Travel and
Mager and that no principal-agency relationship exists between
them. As an independent contractor, Holiday Travel was without
capacity to bind CAI.
Issues

38

To determine the propriety of disturbing the CAs January 30, 2009

Decision and whether Spouses Viloria have the right to the reliefs
they prayed for, this Court deems it necessary to resolve the
following issues:
a. Does a principal-agent relationship exist between CAI and
Holiday Travel?
b. Assuming that an agency relationship exists between CAI
and Holiday Travel, is CAI bound by the acts of Holiday
Travels agents and employees such as Mager?
c. Assuming that CAI is bound by the acts of Holiday Travels
agents and employees, can the representation of Mager as
to unavailability of seats at Amtrak be considered
fraudulent as to vitiate the consent of Spouse Viloria in the
purchase of the subject tickets?
d. Is CAI justified in insisting that the subject tickets are
non-transferable and non-refundable?
e. Is CAI justified in pegging a different price for the round
trip ticket to Los Angeles requested by Fernando?
f. Alternatively, did CAI act in bad faith or renege its
obligation to Spouses Viloria to apply the value of the
subject tickets in the purchase of new ones when it refused
to allow Fernando to use Lourdes ticket and in charging a
higher price for a round trip ticket to Los Angeles?
This Courts Ruling
I. A principal-agent relationship exists between CAI and
Holiday Travel.
With respect to the first issue, which is a question of fact that
would require this Court to review and re-examine the evidence
presented by the parties below, this Court takes exception to the
general rule that the CAs findings of fact are conclusive upon Us
and our jurisdiction is limited to the review of questions of law. It is
well-settled to the point of being axiomatic that this Court is
authorized to resolve questions of fact if confronted with
contrasting factual findings of the trial court and appellate court

and if the findings of the CA are contradicted by the evidence

on record.17
According to the CA, agency is never presumed and
that he who alleges that it exists has the burden of
proof. Spouses Viloria, on whose shoulders such
burden rests, presented evidence that fell short of
indubitably demonstrating the existence of such
agency.
We disagree. The CA failed to consider undisputed
facts, discrediting CAIs denial that Holiday Travel is
one of its agents. Furthermore, in erroneously
characterizing the contractual relationship between
CAI and Holiday Travel as a contract of sale, the CA
failed to apply the fundamental civil law principles
governing agency and differentiating it from sale.
In Rallos v. Felix Go Chan & Sons Realty
Corporation,18 this Court explained the nature of an
agency and spelled out the essential elements
thereof:
Out of the above given principles, sprung the
creation and acceptance of the relationship of
agencywhereby one party, called the principal
(mandante), authorizes another, called the agent
(mandatario), to act for and in his behalf in
transactions with third persons. The essential
elements of agency are: (1) there is consent, express
or implied of the parties to establish the relationship;
(2) the object is the execution of a juridical act in
relation to a third person; (3) the agent acts as a
representative and not for himself, and (4) the agent
acts within the scope of his authority.1avvphi1
Agency
is
basically personal,
representative,
and derivative in nature. The authority of the agent

39

to act emanates from the powers granted to him by his

principal; his act is the act of the principal if done within
the scope of the authority. Qui facit per alium facit se.
"He who acts through another acts himself."19
Contrary to the findings of the CA, all the elements of
an agency exist in this case. The first and second
elements are present as CAI does not deny that it
concluded an agreement with Holiday Travel, whereby
Holiday Travel would enter into contracts of carriage
with third persons on CAIs behalf. The third element is
also present as it is undisputed that Holiday Travel
merely acted in a representative capacity and it is CAI
and not Holiday Travel who is bound by the contracts of
carriage entered into by Holiday Travel on its behalf.
The fourth element is also present considering that CAI
has not made any allegation that Holiday Travel
exceeded the authority that was granted to it. In fact,
CAI consistently maintains the validity of the contracts
of carriage that Holiday Travel executed with Spouses
Viloria and that Mager was not guilty of any fraudulent
misrepresentation. That CAI admits the authority of
Holiday Travel to enter into contracts of carriage on its
behalf is easily discernible from its February 24, 1998
and March 24, 1998 letters, where it impliedly
recognized the validity of the contracts entered into by
Holiday Travel with Spouses Viloria. When Fernando
informed CAI that it was Holiday Travel who issued to
them the subject tickets, CAI did not deny that Holiday
Travel is its authorized agent.
Prior to Spouses Vilorias filing of a complaint against it,
CAI never refuted that it gave Holiday Travel the power
and authority to conclude contracts of carriage on its
behalf. As clearly extant from the records, CAI
recognized the validity of the contracts of carriage that
Holiday Travel entered into with Spouses Viloria and
considered itself bound with Spouses Viloria by the
terms and conditions thereof; and this constitutes an

unequivocal testament to Holiday Travels authority

to act as its agent. This Court cannot therefore allow
CAI to take an altogether different position and deny
that Holiday Travel is its agent without condoning or
giving imprimatur to whatever damage or prejudice
that may result from such denial or retraction to
Spouses Viloria, who relied on good faith on CAIs
acts in recognition of Holiday Travels authority.
Estoppel is primarily based on the doctrine of good
faith and the avoidance of harm that will befall an
innocent party due to its injurious reliance, the
failure to apply it in this case would result in gross
travesty of justice.20 Estoppel bars CAI from making
such denial.
As categorically provided under Article 1869 of the
Civil Code, "[a]gency may be express, or implied
from the acts of the principal, from his silence or lack
of action, or his failure to repudiate the agency,
knowing that another person is acting on his behalf
without authority."
Considering that the fundamental hallmarks of an
agency are present, this Court finds it rather peculiar
that the CA had branded the contractual relationship
between CAI and Holiday Travel as one of sale. The
distinctions between a sale and an agency are not
difficult to discern and this Court, as early as 1970,
had already formulated the guidelines that would aid
in
differentiating
the
two
(2)
contracts.
In Commissioner
of
Internal
Revenue
v.
Constantino,21 this Court extrapolated that the
primordial differentiating consideration between the
two (2) contracts is the transfer of ownership or title
over the property subject of the contract. In an
agency, the principal retains ownership and control
over the property and the agent merely acts on the
principals behalf and under his instructions in
furtherance of the objectives for which the agency

40

was established. On the other hand, the contract is

clearly a sale if the parties intended that the delivery of
the property will effect a relinquishment of title, control
and ownership in such a way that the recipient may do
with the property as he pleases.
Since the company retained ownership of the goods,
even as it delivered possession unto the dealer for
resale to customers, the price and terms of which were
subject to the company's control, the relationship
between the company and the dealer is one of agency,
tested under the following criterion:
"The difficulty in distinguishing between contracts of
sale and the creation of an agency to sell has led to the
establishment of rules by the application of which this
difficulty may be solved. The decisions say the transfer
of title or agreement to transfer it for a price paid or
promised is the essence of sale. If such transfer puts
the transferee in the attitude or position of an owner
and makes him liable to the transferor as a debtor for
the agreed price, and not merely as an agent who must
account for the proceeds of a resale, the transaction is
a sale; while the essence of an agency to sell is the
delivery to an agent, not as his property, but as the
property of the principal, who remains the owner and
has the right to control sales, fix the price, and terms,
demand and receive the proceeds less the agent's
commission upon sales made. 1 Mechem on Sales, Sec.
43; 1 Mechem on Agency, Sec. 48; Williston on Sales, 1;
Tiedeman on Sales, 1." (Salisbury v. Brooks, 94 SE 117,
118-119)22
As to how the CA have arrived at the conclusion that
the contract between CAI and Holiday Travel is a sale is
certainly confounding, considering that CAI is the one
bound by the contracts of carriage embodied by the
tickets being sold by Holiday Travel on its behalf. It is
undisputed that CAI and not Holiday Travel who is the

party to the contracts of carriage executed by

Holiday Travel with third persons who desire to travel
via Continental Airlines, and this conclusively
indicates the existence of a principal-agent
relationship. That the principal is bound by all the
obligations contracted by the agent within the scope
of the authority granted to him is clearly provided
under Article 1910 of the Civil Code and this
constitutes the very notion of agency.
II. In actions based on quasi-delict, a principal can only
be held liable for the tort committed by its agents
employees if it has been established by preponderance
of evidence that the principal was also at fault or
negligent or that the principal exercise control and
supervision over them.
Considering that Holiday Travel is CAIs agent, does it
necessarily follow that CAI is liable for the fault or negligence of
Holiday Travels employees? Citing China Air Lines, Ltd. v. Court
of Appeals, et al.,23 CAI argues that it cannot be held liable for
the actions of the employee of its ticketing agent in the absence
of an employer-employee relationship.
An examination of this Courts pronouncements
in China Air Lines will reveal that an airline company
is not completely exonerated from any liability for
the tort committed by its agents employees. A prior
determination of the nature of the passengers cause
of action is necessary. If the passengers cause of
action against the airline company is premised
on culpa aquiliana or quasi-delict for a tort
committed by the employee of the airline companys
agent, there must be an independent showing that
the airline company was at fault or negligent or has
contributed to the negligence or tortuous conduct
committed by the employee of its agent. The mere
fact that the employee of the airline companys
agent has committed a tort is not sufficient to hold
the airline company liable. There is no vinculum

41

juris between the airline company and its agents

employees and the contractual relationship between
the airline company and its agent does not operate to
create a juridical tie between the airline company and
its agents employees. Article 2180 of the Civil Code
does not make the principal vicariously liable for the
tort committed by its agents employees and the
principal-agency relationship per se does not make the
principal a party to such tort; hence, the need to prove
the principals own fault or negligence.
On the other hand, if the passengers cause of action
for damages against the airline company is based on
contractual breach or culpa contractual, it is not
necessary that there be evidence of the airline
companys fault or negligence. As this Court previously
stated in China Air Lines and reiterated in Air France vs.
Gillego,24 "in an action based on a breach of contract of
carriage, the aggrieved party does not have to prove
that the common carrier was at fault or was negligent.
All that he has to prove is the existence of the contract
and the fact of its non-performance by the carrier."
Spouses Vilorias cause of action on the basis of
Magers alleged fraudulent misrepresentation is clearly
one of tort or quasi-delict, there being no pre-existing
contractual relationship between them. Therefore, it
was incumbent upon Spouses Viloria to prove that CAI
was equally at fault.
However, the records are devoid of any evidence by
which CAIs alleged liability can be substantiated. Apart
from their claim that CAI must be held liable for Magers
supposed fraud because Holiday Travel is CAIs agent,
Spouses Viloria did not present evidence that CAI was a
party or had contributed to Magers complained act
either by instructing or authorizing Holiday Travel and
Mager to issue the said misrepresentation.

It may seem unjust at first glance that CAI would

consider Spouses Viloria bound by the terms and
conditions of the subject contracts, which Mager
entered into with them on CAIs behalf, in order to
deny Spouses Vilorias request for a refund or
Fernandos use of Lourdes ticket for the re-issuance
of a new one, and simultaneously claim that they are
not bound by Magers supposed misrepresentation
for purposes of avoiding Spouses Vilorias claim for
damages and maintaining the validity of the subject
contracts. It may likewise be argued that CAI cannot
deny liability as it benefited from Magers acts, which
were performed in compliance with Holiday Travels
obligations as CAIs agent.
However, a persons vicarious liability is anchored on
his possession of control, whether absolute or
limited, on the tortfeasor. Without such control, there
is nothing which could justify extending the liability
to a person other than the one who committed the
tort. As this Court explained in Cangco v. Manila
Railroad Co.:25
With respect to extra-contractual obligation
arising from negligence, whether of act or
omission, it is competent for the legislature to elect
and our Legislature has so elected to limit such
liability to cases in which the person upon whom
such an obligation is imposed is morally culpable or,
on the contrary, for reasons of public policy, to
extend that liability, without regard to the lack
of moral culpability, so as to include
responsibility for the negligence of those
persons
whose
acts
or
omissions
are
imputable, by a legal fiction, to others who are
in a position to exercise an absolute or limited
control over them. The legislature which adopted
our Civil Code has elected to limit extra-contractual
liability with certain well-defined exceptions to

42

cases in which moral culpability can be directly imputed

to the persons to be charged. This moral responsibility
may consist in having failed to exercise due care in
one's own acts, or in having failed to exercise due care
in the selection and control of one's agent or servants,
or in the control of persons who, by reasons of their
status, occupy a position of dependency with respect to
the person made liable for their conduct. 26 (emphasis
supplied)
It is incumbent upon Spouses Viloria to prove that CAI
exercised control or supervision over Mager by
preponderant evidence. The existence of control or
supervision cannot be presumed and CAI is under no
obligation to prove its denial or nugatory assertion.
Citing Belen v. Belen,27 this Court ruled in Jayme v.
Apostol,28 that:
In Belen v. Belen, this Court ruled that it was enough for
defendant to deny an alleged employment relationship.
The defendant is under no obligation to prove the
negative averment. This Court said:
"It is an old and well-settled rule of the courts that the
burden of proving the action is upon the plaintiff, and
that if he fails satisfactorily to show the facts upon
which he bases his claim, the defendant is under no
obligation to prove his exceptions. This [rule] is in
harmony with the provisions of Section 297 of the Code
of Civil Procedure holding that each party must prove
his own affirmative allegations, etc."29 (citations
omitted)
Therefore, without a modicum of evidence that CAI
exercised control over Holiday Travels employees or
that CAI was equally at fault, no liability can be imposed
on CAI for Magers supposed misrepresentation.

III. Even on the assumption that CAI may be held liable

for the acts of Mager, still, Spouses Viloria are not
entitled to a refund. Magers statement cannot be
considered a causal fraud that would justify the
annulment of the subject contracts that would oblige CAI
to indemnify Spouses Viloria and return the money they
paid for the subject tickets.
Article 1390, in relation to Article 1391 of the Civil Code,
provides that if the consent of the contracting parties was
obtained through fraud, the contract is considered voidable and
may be annulled within four (4) years from the time of the
discovery of the fraud. Once a contract is annulled, the parties
are obliged under Article 1398 of the same Code to restore to
each other the things subject matter of the contract, including
their fruits and interest.
On the basis of the foregoing and given the
allegation of Spouses Viloria that Fernandos consent
to the subject contracts was supposedly secured by
Mager through fraudulent means, it is plainly
apparent that their demand for a refund is
tantamount to seeking for an annulment of the
subject contracts on the ground of vitiated consent.
Whether the subject contracts are annullable, this
Court is required to determine whether Magers
alleged misrepresentation constitutes causal fraud.
Similar to the dispute on the existence of an agency,
whether fraud attended the execution of a contract
is factual in nature and this Court, as discussed
above, may scrutinize the records if the findings of
the CA are contrary to those of the RTC.
Under Article 1338 of the Civil Code, there is fraud
when, through insidious words or machinations of
one of the contracting parties, the other is induced
to enter into a contract which, without them, he
would not have agreed to. In order that fraud may
vitiate consent, it must be the causal (dolo

43

causante), not merely the incidental (dolo incidente),

inducement to the making of the contract. 30 In Samson
v. Court of Appeals,31 causal fraud was defined as "a
deception employed by one party prior to or
simultaneous to the contract in order to secure the
consent of the other."32
Also, fraud must be serious and its existence must be
established by clear and convincing evidence. As ruled
by this Court in Sierra v. Hon. Court of Appeals, et
al.,33 mere preponderance of evidence is not adequate:
Fraud must also be discounted, for according to the
Civil Code:
Art. 1338. There is fraud when, through insidious words
or machinations of one of the contracting parties, the
other is induced to enter into a contract which without
them, he would not have agreed to.
Art. 1344. In order that fraud may make a contract
voidable, it should be serious and should not have been
employed by both contracting parties.
To quote Tolentino again, the "misrepresentation
constituting the fraud must be established by full, clear,
and convincing evidence, and not merely by a
preponderance thereof. The deceit must be serious. The
fraud is serious when it is sufficient to impress, or to
lead an ordinarily prudent person into error; that which
cannot deceive a prudent person cannot be a ground
for nullity. The circumstances of each case should be
considered, taking into account the personal conditions
of the victim."34
After meticulously poring over the records, this Court
finds that the fraud alleged by Spouses Viloria has not
been satisfactorily established as causal in nature to

warrant the annulment of the subject contracts. In

fact, Spouses Viloria failed to prove by clear and
convincing evidence that Magers statement was
fraudulent. Specifically, Spouses Viloria failed to
prove that (a) there were indeed available seats at
Amtrak for a trip to New Jersey on August 13, 1997
at the time they spoke with Mager on July 21, 1997;
(b) Mager knew about this; and (c) that she
purposely informed them otherwise.
This Court finds the only proof of Magers alleged
fraud, which is Fernandos testimony that an Amtrak
had assured him of the perennial availability of seats
at Amtrak, to be wanting. As CAI correctly pointed
out and as Fernando admitted, it was possible that
during the intervening period of three (3) weeks from
the time Fernando purchased the subject tickets to
the time he talked to said Amtrak employee, other
passengers may have cancelled their bookings and
reservations with Amtrak, making it possible for
Amtrak to accommodate them. Indeed, the existence
of fraud cannot be proved by mere speculations and
conjectures. Fraud is never lightly inferred; it is good
faith that is. Under the Rules of Court, it is presumed
that "a person is innocent of crime or wrong" and
that "private transactions have been fair and
regular."35 Spouses Viloria failed to overcome this
presumption.
IV. Assuming the contrary, Spouses
nevertheless deemed to have ratified
contracts.

Viloria are
the subject

Even assuming that Magers representation is causal fraud, the

subject contracts have been impliedly ratified when Spouses
Viloria decided to exercise their right to use the subject tickets
for the purchase of new ones. Under Article 1392 of the Civil
Code, "ratification extinguishes the action to annul a voidable
contract."

44

Ratification of a voidable contract is defined under

Article 1393 of the Civil Code as follows:
Art. 1393. Ratification may be effected expressly or
tacitly. It is understood that there is a tacit ratification
if, with knowledge of the reason which renders the
contract voidable and such reason having ceased, the
person who has a right to invoke it should execute an
act which necessarily implies an intention to waive his
right.
Implied ratification may take diverse forms, such as by
silence or acquiescence; by acts showing approval or
adoption of the contract; or by acceptance and
retention of benefits flowing therefrom.36
Simultaneous with their demand for a refund on the
ground of Fernandos vitiated consent, Spouses Viloria
likewise asked for a refund based on CAIs supposed
bad faith in reneging on its undertaking to replace the
subject tickets with a round trip ticket from Manila to
Los Angeles.
In doing so, Spouses Viloria are actually asking for a
rescission of the subject contracts based on contractual
breach. Resolution, the action referred to in Article
1191, is based on the defendants breach of faith, a
violation of the reciprocity between the parties 37 and
in Solar Harvest, Inc. v. Davao Corrugated Carton
Corporation,38 this Court ruled that a claim for a
reimbursement in view of the other partys failure to
comply with his obligations under the contract is one
for rescission or resolution.
However, annulment under Article 1390 of the Civil
Code and rescission under Article 1191 are two (2)
inconsistent remedies. In resolution, all the elements to
make the contract valid are present; in annulment, one

of the essential elements to a formation of a

contract, which is consent, is absent. In resolution,
the defect is in the consummation stage of the
contract when the parties are in the process of
performing
their
respective
obligations;
in
annulment, the defect is already present at the time
of the negotiation and perfection stages of the
contract. Accordingly, by pursuing the remedy of
rescission under Article 1191, the Vilorias had
impliedly admitted the validity of the subject
contracts, forfeiting their right to demand their
annulment. A party cannot rely on the contract and
claim rights or obligations under it and at the same
time impugn its existence or validity. Indeed,
litigants are enjoined from taking inconsistent
positions.39
V. Contracts cannot be rescinded for a slight or casual
breach.
CAI cannot insist on the non-transferability of the subject
tickets.
Considering that the subject contracts are not
annullable on the ground of vitiated consent, the
next question is: "Do Spouses Viloria have the right
to rescind the contract on the ground of CAIs
supposed breach of its undertaking to issue new
tickets upon surrender of the subject tickets?"
Article 1191, as presently worded, states:
The power to rescind obligations is implied in
reciprocal ones, in case one of the obligors should
not comply with what is incumbent upon him.
The injured party may choose between the fulfilment
and the rescission of the obligation, with the
payment of damages in either case. He may also

45

seek rescission, even after he has chosen fulfillment, if

the latter should become impossible.
The court shall decree the rescission claimed, unless
there be just cause authorizing the fixing of a period.
This is understood to be without prejudice to the rights
of third persons who have acquired the thing, in
accordance with articles 1385 and 1388 and the
Mortgage Law.
According to Spouses Viloria, CAI acted in bad faith and
breached the subject contracts when it refused to apply
the value of Lourdes ticket for Fernandos purchase of
a round trip ticket to Los Angeles and in requiring him
to pay an amount higher than the price fixed by other
airline companies.
In its March 24, 1998 letter, CAI stated that "nonrefundable tickets may be used as a form of payment
toward the purchase of another Continental ticket for
$75.00, per ticket, reissue fee ($50.00, per ticket, for
tickets purchased prior to October 30, 1997)."
Clearly, there is nothing in the above-quoted section of
CAIs letter from which the restriction on the nontransferability of the subject tickets can be inferred. In
fact, the words used by CAI in its letter supports the
position of Spouses Viloria, that each of them can use
the ticket under their name for the purchase of new
tickets whether for themselves or for some other
person.
Moreover, as CAI admitted, it was only when Fernando
had expressed his interest to use the subject tickets for
the purchase of a round trip ticket between Manila and
Los Angeles that he was informed that he cannot use
the ticket in Lourdes name as payment.

Contrary to CAIs claim, that the subject tickets are

non-transferable cannot be implied from a plain
reading of the provision printed on the subject
tickets stating that "[t]o the extent not in conflict
with the foregoing carriage and other services
performed by each carrier are subject to: (a)
provisions contained in this ticket, x x x (iii) carriers
conditions of carriage and related regulations which
are made part hereof (and are available on
application at the offices of carrier) x x x." As a
common carrier whose business is imbued with
public interest, the exercise of extraordinary
diligence requires CAI to inform Spouses Viloria, or
all of its passengers for that matter, of all the terms
and conditions governing their contract of carriage.
CAI is proscribed from taking advantage of any
ambiguity in the contract of carriage to impute
knowledge on its passengers of and demand
compliance with a certain condition or undertaking
that is not clearly stipulated. Since the prohibition on
transferability is not written on the face of the
subject tickets and CAI failed to inform Spouses
Viloria thereof, CAI cannot refuse to apply the value
of Lourdes ticket as payment for Fernandos
purchase of a new ticket.
CAIs refusal to accept Lourdes ticket for the purchase
of a new ticket for Fernando is only a casual breach.
Nonetheless, the right to rescind a contract for non-performance
of its stipulations is not absolute. The general rule is that
rescission of a contract will not be permitted for a slight or
casual breach, but only for such substantial and fundamental
violations as would defeat the very object of the parties in
making the agreement.40 Whether a breach is substantial is
largely determined by the attendant circumstances.41
While CAIs refusal to allow Fernando to use the value of
Lourdes ticket as payment for the purchase of a new ticket is
unjustified as the non-transferability of the subject tickets was

46

not clearly stipulated, it cannot, however be considered

substantial. The endorsability of the subject tickets is not an
essential part of the underlying contracts and CAIs failure to
comply is not essential to its fulfillment of its undertaking to issue
new tickets upon Spouses Vilorias surrender of the subject tickets.
This Court takes note of CAIs willingness to perform its principal
obligation and this is to apply the price of the ticket in Fernandos
name to the price of the round trip ticket between Manila and Los
Angeles. CAI was likewise willing to accept the ticket in Lourdes
name as full or partial payment as the case may be for the
purchase of any ticket, albeit under her name and for her exclusive
use. In other words, CAIs willingness to comply with its
undertaking under its March 24, 1998 cannot be doubted, albeit
tainted with its erroneous insistence that Lourdes ticket is nontransferable.
Moreover, Spouses Vilorias demand for rescission cannot prosper
as CAI cannot be solely faulted for the fact that their agreement
failed to consummate and no new ticket was issued to Fernando.
Spouses Viloria have no right to insist that a single round trip ticket
between Manila and Los Angeles should be priced at around
$856.00 and refuse to pay the difference between the price of the
subject tickets and the amount fixed by CAI. The petitioners failed
to allege, much less prove, that CAI had obliged itself to issue to
them tickets for any flight anywhere in the world upon their
surrender of the subject tickets. In its March 24, 1998 letter, it was
clearly stated that "[n]on-refundable tickets may be used as a form
of payment toward the purchase of another Continental
ticket"42 and there is nothing in it suggesting that CAI had obliged
itself to protect Spouses Viloria from any fluctuation in the prices of
tickets or that the surrender of the subject tickets will be
considered as full payment for any ticket that the petitioners
intend to buy regardless of actual price and destination. The CA
was correct in holding that it is CAIs right and exclusive
prerogative to fix the prices for its services and it may not be
compelled to observe and maintain the prices of other airline
companies.43
The conflict as to the endorsability of the subject tickets is an
altogether different matter, which does not preclude CAI from
fixing the price of a round trip ticket between Manila and Los

Angeles in an amount it deems proper and which does not

provide Spouses Viloria an excuse not to pay such price, albeit
subject to a reduction coming from the value of the subject
tickets. It cannot be denied that Spouses Viloria had the
concomitant obligation to pay whatever is not covered by the
value of the subject tickets whether or not the subject tickets
are transferable or not.1avvphi1
There is also no showing that Spouses Viloria were
discriminated against in bad faith by being charged with a
higher rate. The only evidence the petitioners presented to
prove that the price of a round trip ticket between Manila and
Los Angeles at that time was only $856.00 is a newspaper
advertisement for another airline company, which is
inadmissible for being "hearsay evidence, twice removed."
Newspaper clippings are hearsay if they were offered for the
purpose of proving the truth of the matter alleged. As ruled
in Feria v. Court of Appeals,:44
[N]ewspaper articles amount to "hearsay evidence, twice
removed" and are therefore not only inadmissible but without
any probative value at all whether objected to or not, unless
offered for a purpose other than proving the truth of the matter
asserted. In this case, the news article is admissible only as
evidence that such publication does exist with the tenor of the
news therein stated.45 (citations omitted)
The records of this case demonstrate that both parties were
equally in default; hence, none of them can seek judicial redress
for the cancellation or resolution of the subject contracts and
they are therefore bound to their respective obligations
thereunder. As the 1st sentence of Article 1192 provides:
Art. 1192. In case both parties have committed a breach
of the obligation, the liability of the first infractor shall
be equitably tempered by the courts. If it cannot be
determined which of the parties first violated the contract, the
same shall be deemed extinguished, and each shall bear his
own damages. (emphasis supplied)
Therefore, CAIs liability for damages for its refusal to accept
Lourdes ticket for the purchase of Fernandos round trip ticket is

47

offset by Spouses Vilorias liability for their refusal to pay the

amount, which is not covered by the subject tickets. Moreover, the
contract between them remains, hence, CAI is duty bound to issue
new tickets for a destination chosen by Spouses Viloria upon their
surrender of the subject tickets and Spouses Viloria are obliged to
pay whatever amount is not covered by the value of the subject
tickets.
This Court made a similar ruling in Central Bank of the Philippines
v. Court of Appeals.46 Thus:
Since both parties were in default in the performance of their
respective reciprocal obligations, that is, Island Savings Bank failed
to comply with its obligation to furnish the entire loan and Sulpicio
M. Tolentino failed to comply with his obligation to pay
his P17,000.00 debt within 3 years as stipulated, they are both
liable for damages.
Article 1192 of the Civil Code provides that in case both parties
have committed a breach of their reciprocal obligations, the
liability of the first infractor shall be equitably tempered by the
courts. WE rule that the liability of Island Savings Bank for
damages in not furnishing the entire loan is offset by the liability of
Sulpicio M. Tolentino for damages, in the form of penalties and
surcharges, for not paying his overdue P17,000.00 debt. x x x.47
Another consideration that militates against the propriety of
holding CAI liable for moral damages is the absence of a showing
that the latter acted fraudulently and in bad faith. Article 2220 of
the Civil Code requires evidence of bad faith and fraud and moral
damages are generally not recoverable in culpa contractual except
when bad faith had been proven.48 The award of exemplary
damages is likewise not warranted. Apart from the requirement
that the defendant acted in a wanton, oppressive and malevolent
manner, the claimant must prove his entitlement to moral
damages.49
WHEREFORE, premises considered, the instant Petition
is DENIED.
SO ORDERED.

BIENVENIDO L. REYES
Associate Justice
WE CONCUR:
ANTONIO T. CARPIO
Associate Justice
MARIA LOURDES P. A.
SERENO
Associate Justice
ESTELA M. PERLAS-BERNABE
Associate Justice

JOSE PORTUGAL PEREZ

Associate Justice

ATTESTATION
I attest that the conclusions in the above Decision had been
reached in consultation before the case was assigned to the
writer of the opinion of the Courts Division.
ANTONIO T. CARPIO
Associate Justice
Chairperson, Second Division
CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution and the
Division Chairperson's Attestation, I certify that the conclusions
in the above Decision had been reached in consultation before
the case was assigned to the writer of the opinion of the Courts
Division.
RENATO C. CORONA
Chief Justice
Footnotes
* Additional Member in lieu of Associate Justice Arturo D.
Brion per Special Order No. 1174 dated January 9, 2012.

1 Penned by Associate Justice Monina Arevalo-Zenarosa,

with Associate Justices Isaias P. Dicdican and Ramon M.
Bato, Jr., concurring; rollo, pp. 42-54.

48

2 Id. at 53.
3 Id. at 64.
4 Id. at 65.

City of Florence, 175 So. 417, 27 Ala. App. 516; Stroman

Motor Co. v. Brown; 243 P. 133, 126 Ok. 36.

20 Philippine Airlines, Inc. v. CA, 325 Phil 303, 323

(1996).

5 Id. at 67.

21 G.R. No. L-25926, February 27, 1970, 31 SCRA 779.

6 Id. at 68.

22 Id. at 785.

7 Id. at 69-76.

23 264 Phil 15 (1990).

8 Id. at 80.

24 G.R. No. 165266, December 15, 2010, 638 SCRA 472.

9 Id. at 77-85.

25 38 Phil 768 (1918).

10 Id. at 84.

26 Id. at 775-776.

11 Id. at 83.

27 13 Phil 202 (1909).

12 Id. at 84.

28 G.R. No. 163609, November 27, 2008, 572 SCRA 41.

13 Id. at 50-51.

29 Id. at 51-52.

14 Id. at 52.

30 See Tongson v. Emergency Pawnshop Bula, Inc., G.R.

15 Id. at 214.

No. 167874, 15 January 2010, 610 SCRA 150, 159,

citing Woodhouse v. Halili, 93 Phil 526, 537 (1953).

16 Id. at 215.

31 G.R. No. 108245, November 25, 1994, 238 SCRA 397.

17 See Heirs of Jose Lim v. Lim, G.R. No. 172690, March 3,

2010, 614 SCRA 141, 147; Ontimare, Jr. v. Spouses

32 Id. at 404.

Elep, G.R. No. 159224, January 20, 2006, 479 SCRA 257,
265.

33 G.R. No. 90270, July 24, 1992, 211 SCRA 785.

18 171 Phil 222 (1978).

Code, Vol. 4, pp. 508, 514.

34 Id. at 793, citing Tolentino, Commentaries on the Civil

19 Id. at 226-227, citing Articles 1868 and 1881, New Civil

35 Trinidad v. Intermediate Appellate Court, G.R. No.

Code; 11 Manresa 422-423; 4 Sanchez Roman 478, 2nd Ed.;

25 Scaevola, 243, 262; Tolentino, Comments, Civil Code of
the Philippines, p.340, vol. 5, 1959 Ed., Columbia University
Club v. Higgins, D.C.N.Y., 23 f. Supp. 572, 574; Valentine Oil
Co. v. Young, 109 P. 2d 180, 185; 74 C.J.S. 4; Valentine Oil
Co. v. Powers, 59 N.W. 2d 160, 163, 157 Neb. 87; Purnell v.

36 Acua v. Batac Producers Coop. Mktg. Ass., 126 Phil

65922, December 3, 1991, 204 SCRA 524, 530, citing

Rule 131, Sections 5(a) and 5(p).
896, 902 (1967).

49

37 Heirs of Sofia Quirong, v. Development Bank of the

Philippines, G.R. No. 173441, December 3, 2009, 606 SCRA
543, 550.

38 G.R. No. 176868, July 26, 2010, 625 SCRA 448.

39 Gonzales v. Climax Mining Ltd., 492 Phil 682, 697 (2005).
40 See Barredo v. Leao, G.R. No. 156627, June 4, 2004,
431 SCRA 106, 115.

41 See Central Bank of the Philippines v. Spouses Bichara,

385 Phil 553, 565 (2000), citing Vermen Realty
Development Corporation v. Court of Appeals, et al., 224
SCRA 549, 555.

42 Rollo, p. 67.
43 Id. at 52.

Republic of the Philippines

SUPREME COURT
Manila

44 382 Phil 412 (2000).

45 Id. at 423.
46 223 Phil 266 (1985).
47 Id. at 276-277.
48 See Yobido v. Court of Appeals, 346 Phil 1, 13 (1997).
49 Mahinay v. Atty. Velasquez, Jr., 464 Phil 146, 150 (2004).

EN BANC
G.R. No. L-4977

March 22, 1910

DAVID TAYLOR, plaintiff-appellee,

vs.
THE MANILA ELECTRIC RAILROAD AND LIGHT
COMPANY, defendant-appellant.
W. H. Lawrence, for appellant.
W. L. Wright, for appellee.
CARSON, J.:
An action to recover damages for the loss of an eye and other
injuries, instituted by David Taylor, a minor, by his father, his
nearest relative.
The defendant is a foreign corporation engaged in the operation
of a street railway and an electric light system in the city of
Manila. Its power plant is situated at the eastern end of a small
island in the Pasig River within the city of Manila, known as the

50

Isla del Provisor. The power plant may be reached by boat or by

crossing a footbridge, impassable for vehicles, at the westerly end
of the island.
The plaintiff, David Taylor, was at the time when he received the
injuries complained of, 15 years of age, the son of a mechanical
engineer, more mature than the average boy of his age, and
having considerable aptitude and training in mechanics.
On the 30th of September, 1905, plaintiff, with a boy named
Manuel Claparols, about 12 years of age, crossed the footbridge to
the Isla del Provisor, for the purpose of visiting one Murphy, an
employee of the defendant, who and promised to make them a
cylinder for a miniature engine. Finding on inquiry that Mr. Murphy
was not in his quarters, the boys, impelled apparently by youthful
curiosity and perhaps by the unusual interest which both seem to
have taken in machinery, spent some time in wandering about the
company's premises. The visit was made on a Sunday afternoon,
and it does not appear that they saw or spoke to anyone after
leaving the power house where they had asked for Mr. Murphy.
After watching the operation of the travelling crane used in
handling the defendant's coal, they walked across the open space
in the neighborhood of the place where the company dumped in
the cinders and ashes from its furnaces. Here they found some
twenty or thirty brass fulminating caps scattered on the ground.
These caps are approximately of the size and appearance of small
pistol cartridges and each has attached to it two long thin wires by
means of which it may be discharged by the use of electricity. They
are intended for use in the explosion of blasting charges of
dynamite, and have in themselves a considerable explosive power.
After some discussion as to the ownership of the caps, and their
right to take them, the boys picked up all they could find, hung
them on stick, of which each took end, and carried them home.
After crossing the footbridge, they met a little girl named Jessie
Adrian, less than 9 years old, and all three went to the home of the
boy Manuel. The boys then made a series of experiments with the
caps. They trust the ends of the wires into an electric light socket
and obtained no result. They next tried to break the cap with a
stone and failed. Manuel looked for a hammer, but could not find
one. Then they opened one of the caps with a knife, and finding

that it was filled with a yellowish substance they got matches,

and David held the cap while Manuel applied a lighted match to
the contents. An explosion followed, causing more or less
serious injuries to all three. Jessie, who when the boys proposed
putting a match to the contents of the cap, became frightened
and started to run away, received a slight cut in the neck.
Manuel had his hand burned and wounded, and David was
struck in the face by several particles of the metal capsule, one
of which injured his right eye to such an extent as to the
necessitate its removal by the surgeons who were called in to
care for his wounds.
The evidence does definitely and conclusively disclose how the
caps came to be on the defendant's premises, nor how long
they had been there when the boys found them. It appears,
however, that some months before the accident, during the
construction of the defendant's plant, detonating caps of the
same size and kind as those found by the boys were used in
sinking a well at the power plant near the place where the caps
were found; and it also appears that at or about the time when
these caps were found, similarly caps were in use in the
construction of an extension of defendant's street car line to
Fort William McKinley. The caps when found appeared to the
boys who picked them up to have been lying for a considerable
time, and from the place where they were found would seem to
have been discarded as detective or worthless and fit only to be
thrown upon the rubbish heap.
No measures seems to have been adopted by the defendant
company to prohibit or prevent visitors from entering and
walking about its premises unattended, when they felt disposed
so to do. As admitted in defendant counsel's brief, "it is
undoubtedly true that children in their play sometimes crossed
the foot bridge to the islands;" and, we may add, roamed about
at will on the uninclosed premises of the defendant, in the
neighborhood of the place where the caps were found. There is
evidence that any effort ever was made to forbid these children
from visiting the defendant company's premises, although it
must be assumed that the company or its employees were
aware of the fact that they not infrequently did so.

51

Two years before the accident, plaintiff spent four months at sea,
as a cabin boy on one of the interisland transports. Later he took
up work in his father's office, learning mechanical drawing and
mechanical engineering. About a month after his accident he
obtained employment as a mechanical draftsman and continued in
that employment for six months at a salary of P2.50 a day; and it
appears that he was a boy of more than average intelligence, taller
and more mature both mentally and physically than most boys of
fifteen.
The facts set out in the foregoing statement are to our mind fully
and conclusively established by the evidence of record, and are
substantially admitted by counsel. The only questions of fact which
are seriously disputed are plaintiff's allegations that the caps which
were found by plaintiff on defendant company's premises were the
property of the defendant, or that they had come from its
possession and control, and that the company or some of its
employees left them exposed on its premises at the point where
they were found.
The evidence in support of these allegations is meager, and the
defendant company, apparently relying on the rule of law which
places the burden of proof of such allegations upon the plaintiff,
offered no evidence in rebuttal, and insists that plaintiff failed in
his proof. We think, however, that plaintiff's evidence is sufficient
to sustain a finding in accord with his allegations in this regard.
It was proven that caps, similar to those found by plaintiff, were
used, more or less extensively, on the McKinley extension of the
defendant company's track; that some of these caps were used in
blasting a well on the company's premises a few months before
the accident; that not far from the place where the caps were
found the company has a storehouse for the materials, supplies
and so forth, used by it in its operations as a street railway and a
purveyor of electric light; and that the place, in the neighborhood
of which the caps were found, was being used by the company as
a sort of dumping ground for ashes and cinders. Fulminating caps
or detonators for the discharge by electricity of blasting charges by
dynamite are not articles in common use by the average citizen,
and under all the circumstances, and in the absence of all
evidence to the contrary, we think that the discovery of twenty or

thirty of these caps at the place where they were found by the
plaintiff on defendant's premises fairly justifies the inference
that the defendant company was either the owner of the caps in
question or had the caps under its possession and control. We
think also that the evidence tends to disclose that these caps or
detonators were willfully and knowingly thrown by the company
or its employees at the spot where they were found, with the
expectation that they would be buried out of the sight by the
ashes which it was engaged in dumping in that neighborhood,
they being old and perhaps defective; and, however this may
be, we are satisfied that the evidence is sufficient to sustain a
finding that the company or some of its employees either
willfully or through an oversight left them exposed at a point on
its premises which the general public, including children at play,
where not prohibited from visiting, and over which the company
knew or ought to have known that young boys were likely to
roam about in pastime or in play.
Counsel for appellant endeavors to weaken or destroy the
probative value of the facts on which these conclusions are
based by intimidating or rather assuming that the blasting work
on the company's well and on its McKinley extension was done
by contractors. It was conclusively proven, however, that while
the workman employed in blasting the well was regularly
employed by J. G. White and Co., a firm of contractors, he did
the work on the well directly and immediately under the
supervision and control of one of defendant company's foremen,
and there is no proof whatever in the record that the blasting on
the McKinley extension was done by independent contractors.
Only one witness testified upon this point, and while he stated
that he understood that a part of this work was done by
contract, he could not say so of his own knowledge, and knew
nothing of the terms and conditions of the alleged contract, or
of the relations of the alleged contractor to the defendant
company. The fact having been proven that detonating caps
were more or less extensively employed on work done by the
defendant company's directions and on its behalf, we think that
the company should have introduced the necessary evidence to
support its contention if it wished to avoid the not unreasonable
inference that it was the owner of the material used in these

52

operations and that it was responsible for tortious or negligent acts

of the agents employed therein, on the ground that this work had
been intrusted to independent contractors as to whose acts the
maxim respondent superior should not be applied. If the company
did not in fact own or make use of caps such as those found on its
premises, as intimated by counsel, it was a very simple matter for
it to prove that fact, and in the absence of such proof we think that
the other evidence in the record sufficiently establishes the
contrary, and justifies the court in drawing the reasonable
inference that the caps found on its premises were its property,
and were left where they were found by the company or some of
its employees.
Plaintiff appears to have rested his case, as did the trial judge his
decision in plaintiff's favor, upon the provisions of article 1089 of
the Civil Code read together with articles 1902, 1903, and 1908 of
that code.
ART. 1089 Obligations are created by law, by contracts, by
quasi-contracts, and illicit acts and omissions or by those in
which any kind of fault or negligence occurs.
ART. 1902 A person who by an act or omission causes
damage to another when there is fault or negligence shall
be obliged to repair the damage so done.
ART. 1903 The obligation imposed by the preceding article
is demandable, not only for personal acts and omissions,
but also for those of the persons for whom they should be
responsible.
The father, and on his death or incapacity the mother, is
liable for the damages caused by the minors who live with
them.
xxx

xxx

xxx

Owners or directors of an establishment or enterprise are

equally liable for damages caused by their employees in the
service of the branches in which the latter may be
employed or on account of their duties.
xxx

xxx

xxx

The liability referred to in this article shall cease when

the persons mentioned therein prove that they employed
all the diligence of a good father of a family to avoid the
damage.
ART. 1908 The owners shall also be liable for the damage
caused
1 By the explosion of machines which may not have been
cared for with due diligence, and for kindling of explosive
substances which may not have been placed in a safe
and proper place.
Counsel for the defendant and appellant rests his appeal strictly
upon his contention that the facts proven at the trial do not
established the liability of the defendant company under the
provisions of these articles, and since we agree with this view of
the case, it is not necessary for us to consider the various
questions as to form and the right of action (analogous to those
raised in the case of Rakes vs. Atlantic, Gulf and Pacific Co., 7
Phil. Rep., 359), which would, perhaps, be involved in a decision
affirming the judgment of the court below.
We agree with counsel for appellant that under the Civil Code,
as under the generally accepted doctrine in the United States,
the plaintiff in an action such as that under consideration, in
order to establish his right to a recovery, must establish by
competent evidence:
(1) Damages to the plaintiff.
(2) Negligence by act or omission of which defendant
personally, or some person for whose acts it must
respond, was guilty.
(3) The connection of cause and effect between the
negligence and the damage.
These proposition are, of course, elementary, and do not admit
of discussion, the real difficulty arising in the application of
these principles to the particular facts developed in the case
under consideration.

53

It is clear that the accident could not have happened and not the
fulminating caps been left exposed at the point where they were
found, or if their owner had exercised due care in keeping them in
an appropriate place; but it is equally clear that plaintiff would not
have been injured had he not, for his own pleasure and
convenience, entered upon the defendant's premises, and strolled
around thereon without the express permission of the defendant,
and had he not picked up and carried away the property of the
defendant which he found on its premises, and had he not
thereafter deliberately cut open one of the caps and applied a
match to its contents.
But counsel for plaintiff contends that because of plaintiff's youth
and inexperience, his entry upon defendant company's premises,
and the intervention of his action between the negligent act of
defendant in leaving the caps exposed on its premises and the
accident which resulted in his injury should not be held to have
contributed in any wise to the accident, which should be deemed
to be the direct result of defendant's negligence in leaving the
caps exposed at the place where they were found by the plaintiff,
and this latter the proximate cause of the accident which
occasioned the injuries sustained by him.
In support of his contention, counsel for plaintiff relies on the
doctrine laid down in many of the courts of last resort in the United
States in the cases known as the "Torpedo" and "Turntable" cases,
and the cases based thereon.
In a typical cases, the question involved has been whether a
railroad company is liable for an injury received by an infant of
tender years, who from mere idle curiosity, or for the purposes of
amusement, enters upon the railroad company's premises, at a
place where the railroad company knew, or had good reason to
suppose, children would be likely to come, and there found
explosive signal torpedoes left unexposed by the railroad
company's employees, one of which when carried away by the
visitor, exploded and injured him; or where such infant found upon
the premises a dangerous machine, such as a turntable, left in
such condition as to make it probable that children in playing with
it would be exposed to accident or injury therefrom and where the
infant did in fact suffer injury in playing with such machine.

In these, and in great variety of similar cases, the great weight

of authority holds the owner of the premises liable.
As laid down in Railroad Co. vs. Stout (17 Wall. (84 U. S.), 657),
wherein the principal question was whether a railroad company
was liable for in injury received by an infant while upon its
premises, from idle curiosity, or for purposes of amusement, if
such injury was, under circumstances, attributable to the
negligence of the company), the principles on which these
cases turn are that "while a railroad company is not bound to
the same degree of care in regard to mere strangers who are
unlawfully upon its premises that it owes to passengers
conveyed by it, it is not exempt from responsibility to such
strangers for injuries arising from its negligence or from its
tortious acts;" and that "the conduct of an infant of tender years
is not to be judged by the same rule which governs that of
adult. While it is the general rule in regard to an adult that to
entitle him to recover damages for an injury resulting from the
fault or negligence of another he must himself have been free
from fault, such is not the rule in regard to an infant of tender
years. The care and caution required of a child is according to
his maturity and capacity only, and this is to be determined in
each case by the circumstances of the case."
The doctrine of the case of Railroad Company vs. Stout was
vigorously controverted and sharply criticized in several state
courts, and the supreme court of Michigan in the case of Ryan
vs. Towar (128 Mich., 463) formally repudiated and disapproved
the doctrine of the Turntable cases, especially that laid down
in Railroad Company vs. Stout, in a very able decision wherein it
held, in the language of the syllabus: (1) That the owner of the
land is not liable to trespassers thereon for injuries sustained by
them, not due to his wanton or willful acts; (2) that no exception
to this rule exists in favor of children who are injured by
dangerous machinery naturally calculated to attract them to the
premises; (3) that an invitation or license to cross the premises
of another can not be predicated on the mere fact that no steps
have been taken to interfere with such practice; (4) that there is
no difference between children and adults as to the
circumstances that will warrant the inference of an invitation or
a license to enter upon another's premises.

54

Similar criticisms of the opinion in the case of Railroad Company

vs. Stout were indulged in by the courts in Connecticut and
Massachusetts. (Nolan vs. Railroad Co., 53 Conn., 461; 154 Mass.,
349). And the doctrine has been questioned in Wisconsin,
Pennsylvania, New Hampshire, and perhaps in other States.
On the other hand, many if not most of the courts of last resort in
the United States, citing and approving the doctrine laid down in
England in the leading case of Lynch vs. Nurding (1 Q. B., 29, 35,
36), lay down the rule in these cases in accord with that
announced in the Railroad Company vs. Stout (supra), and the
Supreme Court of the United States, in a unanimous opinion
delivered by Justice Harlan in the case of Union Pacific Railway Co.
vs. McDonal and reconsidered the doctrine laid down in Railroad
Co. vs. Stout, and after an exhaustive and critical analysis and
review of many of the adjudged cases, both English and American,
formally declared that it adhered "to the principles announced in
the case of Railroad Co. vs. Stout."
In the case of Union Pacific Railway Co. vs. MacDonald (supra) the
facts were as follows: The plaintiff, a boy 12 years of age, out of
curiosity and for his own pleasure, entered upon and visited the
defendant's premises, without defendant's express permission or
invitation, and while there, was by accident injured by falling into a
burning slack pile of whose existence he had no knowledge, but
which had been left by defendant on its premises without any
fence around it or anything to give warning of its dangerous
condition, although defendant knew or had reason the interest or
curiosity of passers-by. On these facts the court held that the
plaintiff could not be regarded as a mere trespasser, for whose
safety and protection while on the premises in question, against
the unseen danger referred to, the defendant was under no
obligation to make provision.
We quote at length from the discussion by the court of the
application of the principles involved to the facts in that case,
because what is said there is strikingly applicable in the case at
bar, and would seem to dispose of defendant's contention that, the
plaintiff in this case being a trespasser, the defendant company
owed him no duty, and in no case could be held liable for injuries

which would not have resulted but for the entry of plaintiff on
defendant's premises.
We adhere to the principles announced in Railroad Co.
vs. Stout (supra). Applied to the case now before us, they
require us to hold that the defendant was guilty of
negligence in leaving unguarded the slack pile, made by
it in the vicinity of its depot building. It could have
forbidden all persons from coming to its coal mine for
purposes merely of curiosity and pleasure. But it did not
do so. On the contrary, it permitted all, without regard to
age, to visit its mine, and witness its operation. It knew
that the usual approach to the mine was by a narrow
path skirting its slack pit, close to its depot building, at
which the people of the village, old and young, would
often assemble. It knew that children were in the habit of
frequenting that locality and playing around the shaft
house in the immediate vicinity of the slack pit. The
slightest regard for the safety of these children would
have suggested that they were in danger from being so
near a pit, beneath the surface of which was concealed
(except when snow, wind, or rain prevailed) a mass of
burning coals into which a child might accidentally fall
and be burned to death. Under all the circumstances, the
railroad company ought not to be heard to say that the
plaintiff, a mere lad, moved by curiosity to see the mine,
in the vicinity of the slack pit, was a trespasser, to whom
it owed no duty, or for whose protection it was under no
obligation to make provisions.
In Townsend vs. Wathen (9 East, 277, 281) it was held
that if a man dangerous traps, baited with flesh, in his
own ground, so near to a highway, or to the premises of
another, that dogs passing along the highway, or kept in
his neighbors premises, would probably be attracted by
their instinct into the traps, and in consequence of such
act his neighbor's dogs be so attracted and thereby
injured, an action on the case would lie. "What
difference," said Lord Ellenborough, C.J., "is there in
reason between drawing the animal into the trap by
means of his instinct which he can not resist, and putting

55

him there by manual force?" What difference, in reason we

may observe in this case, is there between an express
license to the children of this village to visit the defendant's
coal mine, in the vicinity of its slack pile, and an implied
license, resulting from the habit of the defendant to permit
them, without objection or warning, to do so at will, for
purposes of curiosity or pleasure? Referring it the case
of Townsend vs. Wathen, Judge Thompson, in his work on
the Law of Negligence, volume 1, page 305, note, well says:
"It would be a barbarous rule of law that would make the
owner of land liable for setting a trap thereon, baited with
stinking meat, so that his neighbor's dog attracted by his
natural instinct, might run into it and be killed, and which
would exempt him from liability for the consequence of
leaving exposed and unguarded on his land a dangerous
machine, so that his neighbor's child attracted to it and
tempted to intermeddle with it by instincts equally strong,
might thereby be killed or maimed for life."
Chief Justice Cooley, voicing the opinion of the supreme court of
Michigan, in the case of Powers vs. Harlow (53 Mich., 507), said
that (p. 515):
Children, wherever they go, must be expected to act upon
childlike instincts and impulses; and others who are
chargeable with a duty of care and caution toward them
must calculate upon this, and take precautions accordingly.
If they leave exposed to the observation of children
anything which would be tempting to them, and which they
in their immature judgment might naturally suppose they
were at liberty to handle or play with, they should expect
that liberty to be taken.
And the same eminent jurist in his treatise or torts, alluding to the
doctrine of implied invitation to visit the premises of another, says:
In the case of young children, and other persons not
fully sui juris, an implied license might sometimes arise
when it would not on behalf of others. Thus leaving a
tempting thing for children to play with exposed, where
they would be likely to gather for that purpose, may be
equivalent to an invitation to them to make use of it; and,

perhaps, if one were to throw away upon his premises,

near the common way, things tempting to children, the
same implication should arise. (Chap. 10, p. 303.)
The reasoning which led the Supreme Court of the United States
to its conclusion in the cases of Railroad Co. vs. Stout (supra)
and Union Pacific Railroad Co. vs. McDonald (supra) is not less
cogent and convincing in this jurisdiction than in that wherein
those cases originated. Children here are actuated by similar
childish instincts and impulses. Drawn by curiosity and impelled
by the restless spirit of youth, boys here as well as there will
usually be found whenever the public is permitted to
congregate. The movement of machinery, and indeed anything
which arouses the attention of the young and inquiring mind,
will draw them to the neighborhood as inevitably as does the
magnet draw the iron which comes within the range of its
magnetic influence. The owners of premises, therefore, whereon
things attractive to children are exposed, or upon which the
public are expressly or impliedly permitted to enter or upon
which the owner knows or ought to know children are likely to
roam about for pastime and in play, " must calculate upon this,
and take precautions accordingly." In such cases the owner of
the premises can not be heard to say that because the child has
entered upon his premises without his express permission he is
a trespasser to whom the owner owes no duty or obligation
whatever. The owner's failure to take reasonable precautions to
prevent the child from entering his premises at a place where
he knows or ought to know that children are accustomed to
roam about of to which their childish instincts and impulses are
likely to attract them is at least equivalent to an implied license
to enter, and where the child does enter under such conditions
the owner's failure to take reasonable precautions to guard the
child against injury from unknown or unseen dangers, placed
upon such premises by the owner, is clearly a breach of duty,
responsible, if the child is actually injured, without other fault on
its part than that it had entered on the premises of a stranger
without his express invitation or permission. To hold otherwise
would be expose all the children in the community to unknown
perils and unnecessary danger at the whim of the owners or

56

occupants of land upon which they might naturally and reasonably

be expected to enter.
This conclusion is founded on reason, justice, and necessity, and
neither is contention that a man has a right to do what will with his
own property or that children should be kept under the care of
their parents or guardians, so as to prevent their entering on the
premises of others is of sufficient weight to put in doubt. In this
jurisdiction as well as in the United States all private property is
acquired and held under the tacit condition that it shall not be so
used as to injure the equal rights and interests of the community
(see U. S. vs. Toribio,1 No. 5060, decided January 26, 1910), and
except as to infants of very tender years it would be absurd and
unreasonable in a community organized as is that in which we
lived to hold that parents or guardian are guilty of negligence or
imprudence in every case wherein they permit growing boys and
girls to leave the parental roof unattended, even if in the event of
accident to the child the negligence of the parent could in any
event be imputed to the child so as to deprive it a right to recover
in such cases a point which we neither discuss nor decide.
But while we hold that the entry of the plaintiff upon defendant's
property without defendant's express invitation or permission
would not have relieved defendant from responsibility for injuries
incurred there by plaintiff, without other fault on his part, if such
injury were attributable to the negligence of the defendant, we are
of opinion that under all the circumstances of this case the
negligence of the defendant in leaving the caps exposed on its
premises was not the proximate cause of the injury received by the
plaintiff, which therefore was not, properly speaking, "attributable
to the negligence of the defendant," and, on the other hand, we
are satisfied that plaintiffs action in cutting open the detonating
cap and putting match to its contents was the proximate cause of
the explosion and of the resultant injuries inflicted upon the
plaintiff, and that the defendant, therefore is not civilly responsible
for the injuries thus incurred.
Plaintiff contends, upon the authority of the Turntable and Torpedo
cases, that because of plaintiff's youth the intervention of his
action between the negligent act of the defendant in leaving the
caps exposed on its premises and the explosion which resulted in

his injury should not be held to have contributed in any wise to

the accident; and it is because we can not agree with this
proposition, although we accept the doctrine of the Turntable
and Torpedo cases, that we have thought proper to discuss and
to consider that doctrine at length in this decision. As was said
in case of Railroad Co. vs. Stout (supra), "While it is the general
rule in regard to an adult that to entitle him to recover damages
for an injury resulting from the fault or negligence of another he
must himself have been free from fault, such is not the rule in
regard to an infant of tender years. The care and caution
required of a child is according to his maturity and capacity
only, and this is to be determined in each case by the
circumstances of the case." As we think we have shown, under
the reasoning on which rests the doctrine of the Turntable and
Torpedo cases, no fault which would relieve defendant of
responsibility for injuries resulting from its negligence can be
attributed to the plaintiff, a well-grown boy of 15 years of age,
because of his entry upon defendant's uninclosed premises
without express permission or invitation' but it is wholly
different question whether such youth can be said to have been
free from fault when he willfully and deliberately cut open the
detonating cap, and placed a match to the contents, knowing,
as he undoubtedly did, that his action would result in an
explosion. On this point, which must be determined by "the
particular circumstances of this case," the doctrine laid down in
the Turntable and Torpedo cases lends us no direct aid, although
it is worthy of observation that in all of the "Torpedo" and
analogous cases which our attention has been directed, the
record discloses that the plaintiffs, in whose favor judgments
have been affirmed, were of such tender years that they were
held not to have the capacity to understand the nature or
character of the explosive instruments which fell into their
hands.
In the case at bar, plaintiff at the time of the accident was a
well-grown youth of 15, more mature both mentally and
physically than the average boy of his age; he had been to sea
as a cabin boy; was able to earn P2.50 a day as a mechanical
draftsman thirty days after the injury was incurred; and the
record discloses throughout that he was exceptionally well

57

qualified to take care of himself. The evidence of record leaves no

room for doubt that, despite his denials on the witness stand, he
well knew the explosive character of the cap with which he was
amusing himself. The series of experiments made by him in his
attempt to produce an explosion, as described by the little girl who
was present, admit of no other explanation. His attempt to
discharge the cap by the use of electricity, followed by his efforts
to explode it with a stone or a hammer, and the final success of his
endeavors brought about by the application of a match to the
contents of the caps, show clearly that he knew what he was
about. Nor can there be any reasonable doubt that he had reason
to anticipate that the explosion might be dangerous, in view of the
fact that the little girl, 9 years of age, who was within him at the
time when he put the match to the contents of the cap, became
frightened and ran away.
True, he may not have known and probably did not know the
precise nature of the explosion which might be expected from the
ignition of the contents of the cap, and of course he did not
anticipate the resultant injuries which he incurred; but he well
knew that a more or less dangerous explosion might be expected
from his act, and yet he willfully, recklessly, and knowingly
produced the explosion. It would be going far to say that
"according to his maturity and capacity" he exercised such and
"care and caution" as might reasonably be required of him, or that
defendant or anyone else should be held civilly responsible for
injuries incurred by him under such circumstances.
The law fixes no arbitrary age at which a minor can be said to have
the necessary capacity to understand and appreciate the nature
and consequences of his own acts, so as to make it negligence on
his part to fail to exercise due care and precaution in the
commission of such acts; and indeed it would be impracticable and
perhaps impossible so to do, for in the very nature of things the
question of negligence necessarily depends on the ability of the
minor to understand the character of his own acts and their
consequences; and the age at which a minor can be said to have
such ability will necessarily depends of his own acts and their
consequences; and at the age at which a minor can be said to
have such ability will necessarily vary in accordance with the
varying nature of the infinite variety of acts which may be done by

him. But some idea of the presumed capacity of infants under

the laws in force in these Islands may be gathered from an
examination of the varying ages fixed by our laws at which
minors are conclusively presumed to be capable of exercising
certain rights and incurring certain responsibilities, though it
can not be said that these provisions of law are of much
practical assistance in cases such as that at bar, except so far
as they illustrate the rule that the capacity of a minor to
become responsible for his own acts varies with the varying
circumstances of each case. Under the provisions of the Penal
Code a minor over fifteen years of age is presumed to be
capable of committing a crime and is to held criminally
responsible therefore, although the fact that he is less than
eighteen years of age will be taken into consideration as an
extenuating circumstance (Penal Code, arts. 8 and 9). At 10
years of age a child may, under certain circumstances, choose
which parent it prefers to live with (Code of Civil Procedure, sec.
771). At 14 may petition for the appointment of a guardian (Id.,
sec. 551), and may consent or refuse to be adopted (Id., sec.
765). And males of 14 and females of 12 are capable of
contracting a legal marriage (Civil Code, art. 83; G. O., No. 68,
sec. 1).
We are satisfied that the plaintiff in this case had sufficient
capacity and understanding to be sensible of the danger to
which he exposed himself when he put the match to the
contents of the cap; that he was sui juris in the sense that his
age and his experience qualified him to understand and
appreciate the necessity for the exercise of that degree of
caution which would have avoided the injury which resulted
from his own deliberate act; and that the injury incurred by him
must be held to have been the direct and immediate result of
his own willful and reckless act, so that while it may be true that
these injuries would not have been incurred but for the
negligence act of the defendant in leaving the caps exposed on
its premises, nevertheless plaintiff's own act was the proximate
and principal cause of the accident which inflicted the injury.
The rule of the Roman law was: Quod quis ex culpa sua
damnum sentit, non intelligitur sentire. (Digest, book 50, tit. 17
rule 203.)

58

The Patidas contain the following provisions:

The just thing is that a man should suffer the damage which
comes to him through his own fault, and that he can not
demand reparation therefor from another. (Law 25, tit.
5, Partida 3.)
And they even said that when a man received an injury
through his own acts the grievance should be against
himself and not against another. (Law 2, tit. 7, Partida 2.)
According to ancient sages, when a man received an injury
through his own acts the grievance should be against
himself and not against another. (Law 2, tit. 7 Partida 2.)
And while there does not appear to be anything in the Civil Code
which expressly lays down the law touching contributory
negligence in this jurisdiction, nevertheless, the interpretation
placed upon its provisions by the supreme court of Spain, and by
this court in the case of Rakes vs. Atlantic, Gulf and Pacific Co. (7
Phil. Rep., 359), clearly deny to the plaintiff in the case at bar the
right to recover damages from the defendant, in whole or in part,
for the injuries sustained by him.
The judgment of the supreme court of Spain of the 7th of March,
1902 (93 Jurisprudencia Civil, 391), is directly in point. In that case
the court said:
According to the doctrine expressed in article 1902 of the
Civil Code, fault or negligence is a source of obligation when
between such negligence and the injury there exists the
relation of cause and effect; but if the injury produced
should not be the result of acts or omissions of a third party,
the latter has no obligation to repair the same, although
such acts or omission were imprudent or unlawful, and
much less when it is shown that the immediate cause of the
injury was the negligence of the injured party himself.
The same court, in its decision of June 12, 1900, said that "the
existence of the alleged fault or negligence is not sufficient without
proof that it, and no other cause, gave rise to the damage."
See also judgment of October 21, 1903.

To similar effect Scaevola, the learned Spanish writer,

writing under that title in his Jurisprudencia del Codigo
Civil (1902 Anuario, p. 455), commenting on the decision
of March 7, 1902 of the Civil Code, fault or negligence
gives rise to an obligation when between it and the
damage there exists the relation of cause and effect; but
if the damage caused does not arise from the acts or
omissions of a third person, there is no obligation to
make good upon the latter, even though such acts or
omissions be imprudent or illegal, and much less so
when it is shown that the immediate cause of the
damage has been the recklessness of the injured party
himself.
And again
In accordance with the fundamental principle of proof,
that the burden thereof is upon the plaintiff, it is
apparent that it is duty of him who shall claim damages
to establish their existence. The decisions of April 9,
1896, and March 18, July, and September 27, 1898, have
especially supported the principle, the first setting forth
in detail the necessary points of the proof, which are
two: An act or omission on the part of the person who is
to be charged with the liability, and the production of the
damage by said act or omission.
This includes, by inference, the establishment of a
relation of cause or effect between the act or omission
and the damage; the latter must be the direct result of
one of the first two. As the decision of March 22, 1881,
said, it is necessary that the damages result immediately
and directly from an act performed culpably and
wrongfully; "necessarily presupposing a legal ground for
imputability." (Decision of October 29, 1887.)
Negligence is not presumed, but must be proven by him
who alleges it. (Scavoela, Jurisprudencia del Codigo
Civil, vol. 6, pp. 551-552.)
(Cf. decisions of supreme court of Spain of June 12, 1900, and
June 23, 1900.)

59

Finally we think the doctrine in this jurisdiction applicable to the

case at bar was definitely settled in this court in the maturely
considered case of Rakes vs. Atlantic, Gulf and Pacific Co. (supra),
wherein we held that while "There are many cases (personal injury
cases) was exonerated," on the ground that "the negligence of the
plaintiff was the immediate cause of the casualty" (decisions of the
15th of January, the 19th of February, and the 7th of March, 1902,
stated in Alcubilla's Index of that year); none of the cases decided
by the supreme court of Spain "define the effect to be given the
negligence of its causes, though not the principal one, and we are
left to seek the theory of the civil law in the practice of other
countries;" and in such cases we declared that law in this
jurisdiction to require the application of "the principle of
proportional damages," but expressly and definitely denied the
right of recovery when the acts of the injured party were the
immediate causes of the accident.
The doctrine as laid down in that case is as follows:
Difficulty seems to be apprehended in deciding which acts
of the injured party shall be considered immediate causes
of the accident. The test is simple. Distinction must be
made between the accident and the injury, between the
event itself, without which there could have been no
accident, and those acts of the victim not entering into it,
independent of it, but contributing to his own proper hurt.
For instance, the cause of the accident under review was
the displacement of the crosspiece or the failure to replace
it. This produces the event giving occasion for damages
that is, the sinking of the track and the sliding of the iron
rails. To this event, the act of the plaintiff in walking by the
side of the car did not contribute, although it was an
element of the damage which came to himself. Had the
crosspiece been out of place wholly or partly through his act
or omission of duty, that would have been one of the
determining causes of the event or accident, for which he
would have been responsible. Where he contributes to the
principal occurrence, as one of its determining factors, he
can not recover. Where, in conjunction with the occurrence,
he contributes only to his own injury, he may recover the
amount that the defendant responsible for the event should

pay for such injury, less a sum deemed a suitable

equivalent for his own imprudence.
We think it is quite clear that under the doctrine thus stated, the
immediate cause of the explosion, the accident which resulted
in plaintiff's injury, was in his own act in putting a match to the
contents of the cap, and that having "contributed to the
principal occurrence, as one of its determining factors, he can
not recover."
We have not deemed it necessary to examine the effect of
plaintiff's action in picking up upon defendant's premises the
detonating caps, the property of defendant, and carrying the
relation of cause and effect between the negligent act or
omission of the defendant in leaving the caps exposed on its
premises and the injuries inflicted upon the plaintiff by the
explosion of one of these caps. Under the doctrine of the
Torpedo cases, such action on the part of an infant of very
tender years would have no effect in relieving defendant of
responsibility, but whether in view of the well-known fact
admitted in defendant's brief that "boys are snappers-up of
unconsidered trifles," a youth of the age and maturity of plaintiff
should be deemed without fault in picking up the caps in
question under all the circumstances of this case, we neither
discuss nor decide.
Twenty days after the date of this decision let judgment be
entered reversing the judgment of the court below, without
costs to either party in this instance, and ten days thereafter let
the record be returned to the court wherein it originated, where
the judgment will be entered in favor of the defendant for the
costs in first instance and the complaint dismissed without day.
So ordered.
Arellano, C.J., Torres and Moreland, JJ., concur.
Johnson, J., concurs in the result.
Footnotes
1 Phil. Rep., 85.

60

Republic of the Philippines

SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 129792 December 21, 1999
JARCO MARKETING CORPORATION, LEONARDO KONG,
JOSE
TIOPE
and
ELISA
PANELO, petitioners,
vs.
HONORABLE COURT OF APPEALS, CONRADO C. AGUILAR
and CRISELDA R. AGUILAR, respondents.
DAVIDE, JR., J.:
In this petition for review on certiorari under Rule 45 of the
Rules of Court, petitioners seek the reversal of the 17 June 1996
decision 1 of the Court of Appeals in C.A. G.R. No. CV 37937 and
the resolution 2 denying their motion for reconsideration. The
assailed decision set aside the 15 January 1992 judgment of the
Regional Trial Court (RTC), Makati City, Branch 60 in Civil Case
No. 7119 and ordered petitioners to pay damages and
attorney's fees to private respondents Conrado and Criselda
(CRISELDA) Aguilar.

61

Petitioner Jarco Marketing Corporation is the owner of Syvel's

Department Store, Makati City. Petitioners Leonardo Kong, Jose
Tiope and Elisa Panelo are the store's branch manager, operations
manager, and supervisor, respectively. Private respondents are
spouses and the parents of Zhieneth Aguilar (ZHIENETH).
In the afternoon of 9 May 1983, CRISELDA and ZHIENETH were at
the 2nd floor of Syvel's Department Store, Makati City. CRISELDA
was signing her credit card slip at the payment and verification
counter when she felt a sudden gust of wind and heard a loud
thud. She looked behind her. She then beheld her daughter
ZHIENETH on the floor, her young body pinned by the bulk of the
store's gift-wrapping counter/structure. ZHIENETH was crying and
screaming for help. Although shocked, CRISELDA was quick to ask
the assistance of the people around in lifting the counter and
retrieving ZHIENETH from the floor. 3
ZHIENETH was quickly rushed to the Makati Medical Center where
she was operated on. The next day ZHIENETH lost her speech and
thereafter communicated with CRISELDA by writing on a magic
slate. The injuries she sustained took their toil on her young body.
She died fourteen (14) days after the accident or on 22 May 1983,
on the hospital bed. She was six years old. 4
The cause of her death was attributed to the injuries she
sustained. The provisional medical certificate 5 issued by
ZHIENETH's attending doctor described the extent of her injuries:
Diagnoses:
1. Shock, severe, sec. to
intra-abdominal injuries
due to blunt injury
2. Hemorrhage, massive,
intraperitoneal sec. to
laceration, (L) lobe liver
3. Rupture, stomach,
anterior & posterior walls
4. Complete transection,
4th position, duodenum

5.
Hematoma,
extensive,
retroperitoneal
6. Contusion, lungs,
severe
CRITICAL
After the burial of their daughter, private respondents
demanded upon petitioners the reimbursement of the
hospitalization,
medical
bills
and
wake
and
funeral
expenses 6 which they had incurred. Petitioners refused to pay.
Consequently, private respondents filed a complaint for
damages, docketed as Civil Case No. 7119 wherein they sought
the payment of P157,522.86 for actual damages, P300,000 for
moral damages, P20,000 for attorney's fees and an unspecified
amount for loss of income and exemplary damages.
In their answer with counterclaim, petitioners denied any
liability for the injuries and consequent death of ZHIENETH.
They claimed that CRISELDA was negligent in exercising care
and diligence over her daughter by allowing her to freely roam
around in a store filled with glassware and appliances.
ZHIENETH too, was guilty of contributory negligence since she
climbed the counter, triggering its eventual collapse on her.
Petitioners also emphasized that the counter was made of
sturdy wood with a strong support; it never fell nor collapsed for
the past fifteen years since its construction.
Additionally, petitioner Jarco Marketing Corporation maintained
that it observed the diligence of a good father of a family in the
selection, supervision and control of its employees. The other
petitioners likewise raised due care and diligence in the
performance of their duties and countered that the complaint
was malicious for which they suffered besmirched reputation
and mental anguish. They sought the dismissal of the complaint
and an award of moral and exemplary damages and attorney's
fees in their favor.
In its decision 7 the trial court dismissed the complaint and
counterclaim after finding that the preponderance of the
evidence favored petitioners. It ruled that the proximate cause

62

of the fall of the counter on ZHIENETH was her act of clinging to it.
It believed petitioners' witnesses who testified that ZHIENETH
clung to the counter, afterwhich the structure and the girl fell with
the structure falling on top of her, pinning her stomach. In
contrast, none of private respondents' witnesses testified on how
the counter fell. The trial court also held that CRISELDA's
negligence contributed to ZHIENETH's accident.
In absolving petitioners from any liability, the trial court reasoned
that the counter was situated at the end or corner of the 2nd floor
as a precautionary measure hence, it could not be considered as
an attractive nuisance. 8The counter was higher than ZHIENETH. It
has been in existence for fifteen years. Its structure was safe and
well-balanced. ZHIENETH, therefore, had no business climbing on
and clinging to it.
Private respondents appealed the decision, attributing as errors of
the trial court its findings that: (1) the proximate cause of the fall
of the counter was ZHIENETH's misbehavior; (2) CRISELDA was
negligent in her care of ZHIENETH; (3) petitioners were not
negligent in the maintenance of the counter; and (4) petitioners
were not liable for the death of ZHIENETH.
Further, private respondents asserted that ZHIENETH should be
entitled to the conclusive presumption that a child below nine (9)
years is incapable of contributory negligence. And even if
ZHIENETH, at six (6) years old, was already capable of contributory
negligence, still it was physically impossible for her to have
propped herself on the counter. She had a small frame (four feet
high and seventy pounds) and the counter was much higher and
heavier than she was. Also, the testimony of one of the store's
former employees, Gerardo Gonzales, who accompanied ZHIENETH
when she was brought to the emergency room of the Makati
Medical Center belied petitioners' theory that ZHIENETH climbed
the counter. Gonzales claimed that when ZHIENETH was asked by
the doctor what she did, ZHIENETH replied, "[N]othing, I did not
come near the counter and the counter just fell on
me." 9 Accordingly,
Gonzales'
testimony
on
ZHIENETH's
spontaneous declaration should not only be considered as part
of res gestae but also accorded credit.

Moreover, negligence could not be imputed to CRISELDA for it

was reasonable for her to have let go of ZHIENETH at the
precise moment that she was signing the credit card slip.
Finally, private respondents vigorously maintained that the
proximate cause of ZHIENETH's death, was petitioners'
negligence in failing to institute measures to have the counter
permanently nailed.
On the other hand, petitioners argued that private respondents
raised purely factual issues which could no longer be disturbed.
They explained that ZHIENETH's death while unfortunate and
tragic, was an accident for which neither CRISELDA nor even
ZHIENETH could entirely be held faultless and blameless.
Further, petitioners adverted to the trial court's rejection of
Gonzales' testimony as unworthy of credence.
As to private respondent's claim that the counter should have
been nailed to the ground, petitioners justified that it was not
necessary. The counter had been in existence for several years
without any prior accident and was deliberately placed at a
corner to avoid such accidents. Truth to tell, they acted without
fault or negligence for they had exercised due diligence on the
matter. In fact, the criminal case 10 for homicide through simple
negligence filed by private respondents against the individual
petitioners was dismissed; a verdict of acquittal was rendered in
their favor.
The Court of Appeals, however, decided in favor of private
respondents and reversed the appealed judgment. It found that
petitioners were negligent in maintaining a structurally
dangerous counter. The counter was shaped like an inverted
"L" 11 with a top wider than the base. It was top heavy and the
weight of the upper portion was neither evenly distributed nor
supported by its narrow base. Thus, the counter was defective,
unstable and dangerous; a downward pressure on the
overhanging portion or a push from the front could cause the
counter to fall. Two former employees of petitioners had already
previously brought to the attention of the management the
danger the counter could cause. But the latter ignored their
concern. The Court of Appeals faulted the petitioners for this
omission, and concluded that the incident that befell ZHIENETH

63

could have been avoided had petitioners repaired the defective

counter. It was inconsequential that the counter had been in use
for some time without a prior incident.
The Court of Appeals declared that ZHIENETH, who was below
seven (7) years old at the time of the incident, was absolutely
incapable of negligence or other tort. It reasoned that since a child
under nine (9) years could not be held liable even for an
intentional wrong, then the six-year old ZHIENETH could not be
made to account for a mere mischief or reckless act. It also
absolved CRISELDA of any negligence, finding nothing wrong or out
of the ordinary in momentarily allowing ZHIENETH to walk while
she signed the document at the nearby counter.
The Court of Appeals also rejected the testimonies of the witnesses
of petitioners. It found them biased and prejudiced. It instead gave
credit to the testimony of disinterested witness Gonzales. The
Court of Appeals then awarded P99,420.86 as actual damages, the
amount representing the hospitalization expenses incurred by
private respondents as evidenced by the hospital's statement of
account. 12 It denied an award for funeral expenses for lack of
proof to substantiate the same. Instead, a compensatory damage
of P50,000 was awarded for the death of ZHIENETH.
We quote the dispositive portion of the assailed decision, 13 thus:
WHEREFORE, premises considered, the judgment of
the lower court is SET ASIDE and another one is
entered against [petitioners], ordering them to pay
jointly and severally unto [private respondents] the
following:
1. P50,000.00 by way of
compensatory damages
for the death of Zhieneth
Aguilar,
with
legal
interest (6% p.a.) from
27 April 1984;
2.
P99,420.86
as
reimbursement
for
hospitalization expenses
incurred;
with
legal

interest
(6%
p.a.)
from 27 April 1984;
3. P100,000.00 as
moral and exemplary
damages;
4. P20,000.00 in the
concept of attorney's
fees; and
5. Costs.
Private respondents sought a reconsideration of the decision but
the same was denied in the Court of Appeals' resolution 14 of
16 July 1997.
Petitioners now seek the reversal of the Court of Appeals'
decision and the reinstatement of the judgment of the trial
court. Petitioners primarily argue that the Court of Appeals erred
in disregarding the factual findings and conclusions of the trial
court. They stress that since the action was based on tort, any
finding of negligence on the part of the private respondents
would necessarily negate their claim for damages, where said
negligence was the proximate cause of the injury sustained. The
injury in the instant case was the death of ZHIENETH. The
proximate cause was ZHIENETH's act of clinging to the counter.
This act in turn caused the counter to fall on her. This and
CRISELDA's contributory negligence, through her failure to
provide the proper care and attention to her child while inside
the store, nullified private respondents' claim for damages. It is
also for these reasons that parents are made accountable for
the damage or injury inflicted on others by their minor children.
Under these circumstances, petitioners could not be held
responsible for the accident that befell ZHIENETH.
Petitioners also assail the credibility of Gonzales who was
already separated from Syvel's at the time he testified; hence,
his testimony might have been tarnished by ill-feelings against
them.
For their part, private respondents principally reiterated their
arguments that neither ZHIENETH nor CRISELDA was negligent

64

at any time while inside the store; the findings and conclusions of
the Court of Appeals are substantiated by the evidence on record;
the testimony of Gonzales, who heard ZHIENETH comment on the
incident while she was in the hospital's emergency room should
receive credence; and finally, ZHIENETH's part of the res
gestae declaration "that she did nothing to cause the heavy
structure to fall on her" should be considered as the correct version
of the gruesome events.
We deny the petition.
The two issues to be resolved are: (1) whether the death of
ZHIENETH was accidental or attributable to negligence; and (2) in
case of a finding of negligence, whether the same was attributable
to private respondents for maintaining a defective counter or to
CRISELDA and ZHIENETH for failing to exercise due and reasonable
care while inside the store premises.
An accident pertains to an unforeseen event in which no fault or
negligence attaches to the defendant. 15 It is "a fortuitous
circumstance, event or happening; an event happening without
any human agency, or if happening wholly or partly through
human agency, an event which under the circumstances is unusual
or unexpected by the person to whom it happens." 16
On the other hand, negligence is the omission to do something
which a reasonable man, guided by those considerations which
ordinarily regulate the conduct of human affairs, would do, or the
doing of something which a prudent and reasonable man would
not do. 17 Negligence is "the failure to observe, for the protection
of the interest of another person, that degree of care, precaution
and vigilance which the circumstances justly demand, whereby
such other person suffers injury." 18
Accident and negligence are intrinsically contradictory; one cannot
exist with the other. Accident occurs when the person concerned is
exercising ordinary care, which is not caused by fault of any person
and which could not have been prevented by any means
suggested by common prudence. 19
The test in determining the existence of negligence is enunciated
in the landmark case of Plicart v. Smith, 20 thus: Did the defendant
in doing the alleged negligent act use that reasonable care and

caution which an ordinarily prudent person would have used in

the same situation? If not, then he is guilty of negligence. 21
We rule that the tragedy which befell ZHIENETH was no accident
and that ZHIENETH's death could only be attributed to
negligence.
We quote the testimony of Gerardo Gonzales who was at the
scene of the incident and accompanied CRISELDA and
ZHIENETH to the hospital:
Q While at the Makati Medical
Center, did you hear or notice
anything while the child was being
treated?
A At the emergency room we were
all surrounding the child. And when
the doctor asked the child "what did
you do," the child said "nothing, I
did not come near the counter and
the counter just fell on me."
Q (COURT TO ATTY. BELTRAN)
You want the words in Tagalog to be
translated?
ATTY. BELTRAN
Yes, your Honor.
COURT
Granted. Intercalate "wala po, hindi
po ako lumapit doon. Basta
bumagsak." 22
This testimony of Gonzales pertaining to ZHIENETH's statement
formed (and should be admitted as) part of the res
gestae under Section 42, Rule 130 of the Rules of Court, thus:
Part of res gestae. Statements made by a person
while a startling occurrence is taking place or
immediately prior or subsequent thereto with
respect to the circumstances thereof, may be

65

given in evidence as part of the res gestae. So, also,

statements accompanying an equivocal act material
to the issue, and giving it a legal significance, may
be received as part of the res gestae.
It is axiomatic that matters relating to declarations of pain or
suffering and statements made to a physician are generally
considered declarations and admissions. 23 All that is required for
their admissibility as part of the res gestaeis that they be made or
uttered under the influence of a startling event before the
declarant had the time to think and concoct a falsehood as
witnessed by the person who testified in court. Under the
circumstances thus described, it is unthinkable for ZHIENETH, a
child of such tender age and in extreme pain, to have lied to a
doctor whom she trusted with her life. We therefore accord
credence to Gonzales' testimony on the matter, i.e., ZHIENETH
performed no act that facilitated her tragic death. Sadly,
petitioners did, through their negligence or omission to secure or
make stable the counter's base.

of it was heavy and considering that

it was not nailed, it can collapse at
anytime, since the top is heavy.
xxx xxx xxx
Q And what did you do?
A I informed Mr. Maat about that
counter which is [sic] shaky and
since Mr. Maat is fond of putting
display decorations on tables, he
even told me that I would put some
decorations. But since I told him
that it not [sic] nailed and it is shaky
he told me "better inform also the
company about it." And since the
company did not do anything about
the counter, so I also did not do
anything
about
the
counter. 24 [Emphasis supplied]

Gonzales' earlier testimony on petitioners' insistence to keep and

maintain the structurally unstable gift-wrapping counter proved
their negligence, thus:

Ramon Guevarra, another former employee, corroborated the

testimony of Gonzales, thus:

Q When you assumed the position as

gift wrapper at the second floor, will
you please describe the gift wrapping
counter, were you able to examine?

Q Will you please described [sic] to

the honorable Court the counter
where you were assigned in January
1983?

A Because every morning before I start

working I used to clean that counter
and since not nailed and it was only
standing on the floor, it was shaky.
xxx xxx xxx
Q Will you please describe the counter
at 5:00 o'clock [sic] in the afternoon on
[sic] May 9 1983?
A At that hour on May 9, 1983, that
counter was standing beside the
verification counter. And since the top

xxx xxx xxx

A That counter assigned to me was
when my supervisor ordered me to
carry that counter to another place.
I told him that the counter needs
nailing and it has to be nailed
because it might cause injury or
accident to another since it was
shaky.
Q When that gift wrapping counter
was transferred at the second floor
on February 12, 1983, will you

66

please describe that to the honorable

Court?

discharge the due diligence required of a good father of a

family.

A I told her that the counter wrapper

[sic] is really in good [sic] condition; it
was shaky. I told her that we had to
nail it.

On the issue of the credibility of Gonzales and Guevarra,

petitioners failed to establish that the former's testimonies were
biased and tainted with partiality. Therefore, the allegation that
Gonzales and Guevarra's testimonies were blemished by "ill
feelings" against petitioners since they (Gonzales and
Guevarra) were already separated from the company at the
time their testimonies were offered in court was but mere
speculation and deserved scant consideration.

Q When you said she, to whom are you

referring to [sic]?
A I am referring to Ms. Panelo, sir.
Q And what was the answer of Ms.
Panelo when you told her that the
counter was shaky?
A She told me "Why do you have to
teach me. You are only my subordinate
and you are to teach me?" And she
even got angry at me when I told her
that.
xxx xxx xxx
Q From February 12, 1983 up to May 9,
1983, what if any, did Ms. Panelo or
any employee of the management do
to that (sic)
xxx xxx xxx
Witness:
None, sir. They never nailed the
counter. They only nailed the counter
after
the
accident
happened. 25 [Emphasis supplied]
Without doubt, petitioner Panelo and another store supervisor were
personally informed of the danger posed by the unstable counter.
Yet, neither initiated any concrete action to remedy the situation
nor ensure the safety of the store's employees and patrons as a
reasonable and ordinary prudent man would have done. Thus, as
confronted by the situation petitioners miserably failed to

It is settled that when the issue concerns the credibility of

witnesses, the appellate courts will not as a general rule disturb
the findings of the trial court, which is in a better position to
determine the same. The trial court has the distinct advantage
of actually hearing the testimony of and observing the
deportment of the witnesses. 26However, the rule admits of
exceptions such as when its evaluation was reached arbitrarily
or it overlooked or failed to appreciate some facts or
circumstances of weight and substance which could affect the
result of the case. 27 In the instant case, petitioners failed to
bring their claim within the exception.
Anent the negligence imputed to ZHIENETH, we apply the
conclusive presumption that favors children below nine (9)
years old in that they are incapable of contributory negligence.
In his book, 28 former Judge Cezar S. Sangco stated:
In our jurisdiction, a person under nine years of
age is conclusively presumed to have acted
without discernment, and is, on that account,
exempt from criminal liability. The same
presumption and a like exemption from criminal
liability obtains in a case of a person over nine
and under fifteen years of age, unless it is shown
that he has acted with discernment. Since
negligence may be a felony and a quasi-delict and
required discernment as a condition of liability,
either criminal or civil, a child under nine years of
age is, by analogy, conclusively presumed to be
incapable of negligence; and that the presumption

67

of lack of discernment or incapacity for negligence in

the case of a child over nine but under fifteen years
of age is a rebuttable one, under our law. The rule,
therefore, is that a child under nine years of age
must be conclusively presumed incapable of
contributory negligence as a matter of law.
[Emphasis supplied]
Even if we attribute contributory negligence to ZHIENETH and
assume that she climbed over the counter, no injury should have
occurred if we accept petitioners' theory that the counter was
stable and sturdy. For if that was the truth, a frail six-year old could
not have caused the counter to collapse. The physical analysis of
the counter by both the trial court and Court of Appeals and a
scrutiny of the evidence 29 on record reveal otherwise, i.e., it was
not durable after all. Shaped like an inverted "L," the counter was
heavy, huge, and its top laden with formica. It protruded towards
the customer waiting area and its base was not secured. 30
CRISELDA too, should be absolved from any contributory
negligence. Initially, ZHIENETH held on to CRISELDA's waist, later
to the latter's hand. 31 CRISELDA momentarily released the child's
hand from her clutch when she signed her credit card slip. At this
precise moment, it was reasonable and usual for CRISELDA to let
go of her child. Further, at the time ZHIENETH was pinned down by
the counter, she was just a foot away from her mother; and the
gift-wrapping counter was just four meters away from
CRISELDA. 32 The time and distance were both significant.
ZHIENETH was near her mother and did not loiter as petitioners
would want to impress upon us. She even admitted to the doctor
who treated her at the hospital that she did not do anything; the
counter just fell on her.
WHEREFORE, in view of all the foregoing, the instant petition is
DENIED and the challenged decision of the Court of Appeals of 17
June 1996 in C.A. G.R. No. CV 37937 is hereby AFFIRMED.
Costs against petitioners.
SO ORDERED.
Puno, Kapunan, Pardo and Ynares-Santiago, JJ., concur.

Footnotes
1 Annex "A" of Petition; Rollo, 36-47. Per Justice Godardo
A. Jacinto, with Justices Salome A. Montoya and
Maximiano C. Asuncion, concurring.
2 Annex "B" of Petition; Rollo, 49.
3 TSN, 13 February 1985, 5, 6, 7-8, 21-22, 31.
4 Id., 32, 36, 42, 52.
5 Original Record (OR), 8.
6 Exhibit "H."
7 OR, 603-612. Per Judge Pedro N. Lagui.
8 One who maintains on his premises dangerous
instrumentalities or appliances of a character likely to
attract children in play, and who fails to exercise ordinary
care to prevent children from playing therewith or
resorting thereto, is liable to a child of tender years who
is injured thereby, even if the child is technically a
tresspasser in the premises.
The principal reason for the doctrine is that the
condition or appliance in question although its
danger is apparent to those of age, is so enticing
or alluring to children of tender years as to induce
them to approach, get on or use it, and this
attractiveness is an implied invitation to such
children. (Hidalgo Enterprises, Inc. v. Balandan, et
al., 488, 490 [1952].
9 TSN, 10 September 1987, 12.
10 Criminal Case No. 118986 filed with the Makati
Metropolitan Trial Court, Branch 61.
11 Exhibit "D."
12 Exhibit "F."
13 Supra note 1.
14 Supra note 2.

68

15 See Novo & Co. v. Ainsworth, 26 Phil. 380, 387 [1913].

31 TSN, 13 February 15, 20.

16 BLACK'S LAW DICTIONARY, 5th ed. 1979, 14.

32 Ibid., 11, 22.

17 Mckee v. Intermediate Appellate Court, 211 SCRA 517,

539 [1992] citing Black's Law Dictionary, 5th ed., 1979,
930.
18 U.S. v. Barias, 23 Phil. 434, 437 [1912] citing Judge
Cooley's work on Torts, 3rd ed., 1324.
19 See Cavanaugh v. Jepson Iowa, 167 N.W. 2d 616, 623
[1969]. See also Restatement, Second, Torts 8.
20 37 Phil. 809 [1918].
21 Ibid, 813.
22 TSN, 10 September 1987, 12, 13.
23 RICARDO J. FRANCISCO, III EVIDENCE, 1997,
591 citing Keefe v. State of Arizona, 60 Ariz. 293; Stukas v.
Warfield, Pratt, Howell Co., 175 N.W. 81, 85. [1919].
24 TSN, 10 September 1987, 8, 9, 11.
25 TSN, 2 October 1987, 9, 11.
26 See BPI Credit Corporation v. Court of Appeals, 204 SCRA
601, 608 [1991]; Geronimo v. Court of Appeals, 224 SCRA
494, 498 [1993].
27 Borillo v. Court of Appeals, 209 SCRA 130, 140-141
[1992]; McKee v. Intermediate Appellate Court, supra note
16, 537; Salvador v. Court of Appeals, 243 SCRA 239, 253
[1995].
28 I PHILIPPINE LAW ON TORTS AND DAMAGES, 70-71
(1993).
29 Exhibit "D."
30 Exhibits "K," "M," and "N." The counter was made of
heavy wood measuring about 4 to 5 meters in height; 1
meter in length; and 2 1/2 to 3 meters in width; with four
(4) square legs. Its top was made of 5 1/2 inch thick wood
covered by formica about 3/4 inch thick.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC

69

G.R. No. L-7664

August 29, 1958

MR. AND MRS. AMADOR C. ONG, plaintiffs-appellants,

vs.
METROPOLITAN WATER DISTRICT, defendant-appellee.
Tomas Tria Tirona for appellants.
Government Corporate Counsel Ambrosio Padilla and Juan C.
Jimenez for appellee.
BAUTISTA ANGELO, J.:
Plaintiffs spouses seek to recover from defendant, a governmentowned corporation, the sum of P50,000 as damages, P5,000 as
funeral expenses, and P11,000 as attorneys' fees, for the death of
their son Dominador Ong in one of the swimming pools operated
by defendant.
Defendant admits the fact that plaintiffs' son was drowned in one
of its swimming pools but avers that his death was caused by his
own negligence or by unavoidable accident. Defendant also avers
that it had exercised due diligence in the selection of, and
supervision over, its employees and that it had observed the
diligence required by law under the circumstances.
After trial, the lower court found that the action of plaintiffs is
untenable and dismissed the complaint without pronouncement as
to costs. Plaintiffs took the case on appeal directly to this Court
because the amount involved exceeds the sum of P50,000.
Defendant owns and operates three recreational swimming pools
at its Balara filters, Diliman, Quezon City, to which people are
invited and for which a nominal fee of P0.50 for adults and P0.20
for children is charged. The main pool it between two small pools
of oval shape known as the "Wading pool" and the "Beginners
Pool." There are diving boards in the big pools and the depths of
the water at different parts are indicated by appropriate marks on
the wall. The care and supervision of the pools and the users
thereof is entrusted to a recreational section composed of Simeon
Chongco as chief, Armando Rule, a male nurse, and six lifeguards
who had taken the life-saving course given by the Philippine Red
Cross at the YMCA in Manila. For the safety of its patrons,
defendant has provided the pools with a ring buoy, toy roof, towing

line, saving kit and a resuscitator. There is also a sanitary

inspector who is in charge of a clinic established for the benefit
of the patrons. Defendant has also on display in a conspicuous
place certain rules and regulations governing the use of the
pools, one of which prohibits the swimming in the pool alone or
without any attendant. Although defendant does not maintain a
full-time physician in the swimming pool compound, it has
however a nurse and a sanitary inspector ready to administer
injections or operate the oxygen resuscitator if the need should
arise.
In the afternoon of July 5, 1952, at about 1:00 o'clock,
Dominador Ong, a 14-year old high school student and boy
scout, and his brothers Ruben and Eusebio, went to defendant's
swimming pools. This was not the first time that the three
brothers had gone to said natatorium for they had already been
there four or five times before. They arrived at the natatorium
at about 1:45 p.m. After paying the requisite admission fee,
they immediately went to one of the small pools where the
water was shallow. At about 4:35 p.m., Dominador Ong told his
brothers that he was going to the locker room in an adjoining
building to drink a bottle of coke. Upon hearing this, Ruben and
Eusebio went to the bigger pool leaving Dominador in the small
pool and so they did not see the latter when he left the pool to
get a bottle of coke. In that afternoon, there were two lifeguards
on duty in the pool compound, namely, Manuel Abao and Mario
Villanueva. The tour of duty of Abao was from 8:00 to 12:00 in
the morning and from 2:00 to 6:00 in the afternoon, and of
Villanueva from 7:30 to 11:30 a.m. and from 12:30 to 4:30 p.m.
Between 4:00 to 5:00 that afternoon, there were about twenty
bathers inside the pool area and Manuel Abao was going
around the pools to observe the bathers in compliance with the
instructions of his chief.
Between 4:40 to 4:45 p.m., some boys who were in the pool
area informed a bather by the name of Andres Hagad, Jr., that
somebody was swimming under water for quite a long time.
Another boy informed lifeguard Manuel Abao of the same
happening and Abao immediately jumped into the big
swimming pool and retrieved the apparently lifeless body of
Dominador Ong from the bottom. The body was placed at the

70

edge of the pool and Abao immediately applied manual artificial

respiration. Soon after, male nurse Armando Rule came to render
assistance, followed by sanitary inspector Iluminado Vicente who,
after being called by phone from the clinic by one of the security
guards, boarded a jeep carrying with him the resuscitator and a
medicine kit, and upon arriving he injected the boy with
camphorated oil. After the injection, Vicente left on a jeep in order
to fetch Dr. Ayuyao from the University of the Philippines.
Meanwhile, Abao continued the artificial manual respiration, and
when this failed to revive him, they applied the resuscitator until
the two oxygen tanks were exhausted. Not long thereafter, Dr.
Ayuyao arrived with another resuscitator, but the same became of
no use because he found the boy already dead. The doctor ordered
that the body be taken to the clinic.
In the evening of the same day, July 5, 1952, the incident was
investigated by the Police Department of Quezon City and in the
investigation boys Ruben Ong and Andres Hagad, Jr. gave written
statements. On the following day, July 6, 1952, an autopsy was
performed by Dr. Enrique V. de los Santos, Chief, Medico Legal
Division, National Bureau of Investigation, who found in the body of
the deceased the following: an abrasion on the right elbow lateral
aspect; contusion on the right forehead; hematoma on the scalp,
frontal region, right side; a congestion in the brain with petechial
subcortical hemorrhage, frontal lobe; cyanosis on the face and on
the nails; the lung was soggy with fine froth in the bronchioles;
dark fluid blood in the heart; congestion in the visceral organs, and
brownish fluid in the stomach. The death was due to asphyxia by
submersion in water.
The issue posed in this appeal is whether the death of minor
Dominador Ong can be attributed to the negligence of defendant
and/or its employees so as to entitle plaintiffs to recover damages.
The present action is governed by Article 2176 in relation to Article
2080 of the new Civil Code. The first article provides that "whoever
by act or omission causes damage to another, there being fault or
negligence, is obliged to pay for the damages done." Such fault or
negligence is called quasi-delict. Under the second article, this
obligation is demandable not only for one's own acts or omissions
but also for those of persons for whom one is responsible. In

addition, we may quote the following authorities cited in the

decision of the trial court:
"The rule is well settled that the owners of resorts to
which people generally are expressly or by implication
invited are legally bound to exercise ordinary care and
prudence in the management and maintenance of such
resorts, to the end of making them reasonably safe for
visitors" (Larkin vs. Saltair Beach Co., 30 Utah 86, 83 Pac.
686).
"Although the proprietor of a natatorium is liable for
injuries to a patron, resulting from lack of ordinary care
in providing for his safety, without the fault of the patron,
he is not, however, in any sense deemed to be the
insurer of the safety of patrons. And the death of a
patron within his premises does not cast upon him the
burden of excusing himself from any presumption of
negligence" (Bertalot vs. Kinnare. 72 Ill. App. 52, 22 A. L.
R. 635; Flora vs. Bimini Water Co., 161 Cal. 495, 119 Pac.
661). Thus in Bertalot vs. Kinnare, supra, it was held that
there could be no recovery for the death by drowning of
a fifteen-year boy in defendant's natatorium, where it
appeared merely that he was lastly seen alive in water at
the shallow end of the pool, and some ten or fifteen
minutes later was discovered unconscious, and perhaps
lifeless, at the bottom of the pool, all efforts to
resuscitate him being without avail.
Since the present action is one for damages founded on
culpable negligence, the principle to be observed is that the
person claiming damages has the burden of proving that the
damage is caused by the fault or negligence of the person from
whom the damage is claimed, or of one of his employees
(Walter A. Smith & Co. vs. Cadwallader Gibson Lumber Co., 55
Phil., 517). The question then that arises is: Have appellants
established by sufficient evidence the existence of fault or
negligence on the part of appellee so as to render it liable for
damages for the death of Dominador Ong?
There is no question that appellants had striven to prove that
appellee failed to take the necessary precaution to protect the

71

lives of its patrons by not placing at the swimming pools efficient

and competent employees who may render help at a moment's
notice, and they ascribed such negligence to appellee because the
lifeguard it had on the occasion minor Ong was drowning was not
available or was attending to something else with the result that
his help came late. Thus, appellants tried to prove through the
testimony of Andres Hagad, Jr. and Ruben Ong that when Eusebio
Ong and Hagad, Jr. detected that there was a drowning person in
the bottom of the big swimming pool and shouted to the lifeguard
for help, lifeguard Manuel Abao did not immediately respond to
the alarm and it was only upon the third call that he threw away
the magazine he was reading and allowed three or four minutes to
elapse before retrieving the body from the water. This negligence
of Abao, they contend, is attributable to appellee.
But the claim of these two witnesses not only was vehemently
denied by lifeguard Abao, but is belied by the written statements
given by them in the investigation conducted by the Police
Department of Quezon City approximately three hours after the
happening of the accident. Thus, these two boys admitted in the
investigation that they narrated in their statements everything
they knew of the accident, but, as found by the trial, nowhere in
said statements do they state that the lifeguard was chatting with
the security guard at the gate of the swimming pool or was reading
a comic magazine when the alarm was given for which reason he
failed to immediately respond to the alarm. On the contrary, what
Ruben Ong particularly emphasized therein was that after the
lifeguard heard the shouts for help, the latter immediately dived
into the pool to retrieve the person under water who turned out to
be his brother. For this reason, the trial court made this conclusion:
"The testimony of Ruben Ong and Andres Hagad, Jr. as to the
alleged failure of the lifeguard Abao to immediately respond to
their call may therefore be disregarded because they are belied by
their written statements. (Emphasis supplied.)
On the other hand, there is sufficient evidence to show that
appellee has taken all necessary precautions to avoid danger to
the lives of its patrons or prevent accident which may cause their
death. Thus, it has been shown that the swimming pools of
appellee are provided with a ring buoy, toy roof, towing line,
oxygen resuscitator and a first aid medicine kit. The bottom of the

pools is painted with black colors so as to insure clear visibility.

There is on display in a conspicuous place within the area
certain rules and regulations governing the use of the pools.
Appellee employs six lifeguards who are all trained as they had
taken a course for that purpose and were issued certificates of
proficiency. These lifeguards work on schedule prepared by their
chief and arranged in such a way as to have two guards at a
time on duty to look after the safety of the bathers. There is a
male nurse and a sanitary inspector with a clinic provided with
oxygen resuscitator. And there are security guards who are
available always in case of emergency.
The record also shows that when the body of minor Ong was
retrieved from the bottom of the pool, the employees of
appellee did everything possible to bring him back to life. Thus,
after he was placed at the edge of the pool, lifeguard Abao
immediately gave him manual artificial respiration. Soon
thereafter, nurse Armando Rule arrived, followed by sanitary
inspector Iluminado Vicente who brought with him an oxygen
resuscitator. When they found that the pulse of the boy was
abnormal, the inspector immediately injected him with
camphorated oil. When the manual artificial respiration proved
ineffective they applied the oxygen resuscitator until its
contents were exhausted. And while all these efforts were being
made, they sent for Dr. Ayuyao from the University of the
Philippines who however came late because upon examining
the body he found him to be already dead. All of the foregoing
shows that appellee has done what is humanly possible under
the circumstances to restore life to minor Ong and for that
reason it is unfair to hold it liable for his death.
Sensing that their former theory as regards the liability of
appellee may not be of much help, appellants now switch to the
theory that even if it be assumed that the deceased is partly to
be blamed for the unfortunate incident, still appellee may be
held liable under the doctrine of "last clear chance" for the
reason that, having the last opportunity to save the victim, it
failed to do so.
We do not see how this doctrine may apply considering that the
record does not show how minor Ong came into the big

72

swimming pool. The only thing the record discloses is that minor
Ong informed his elder brothers that he was going to the locker
room to drink a bottle of coke but that from that time on nobody
knew what happened to him until his lifeless body was retrieved.
The doctrine of last clear chance simply means that the negligence
of a claimant does not preclude a recovery for the negligence of
defendant where it appears that the latter, by exercising
reasonable care and prudence, might have avoided injurious
consequences to claimant notwithstanding his negligence. Or, "As
the doctrine usually is stated, a person who has the last clear
chance or opportunity of avoiding an accident, notwithstanding the
negligent acts of his opponent or the negligence of a third person
which is imputed to his opponent, is considered in law solely
responsible for the consequences of the accident." (38 Am. Jur. pp.
900-902)
It goes without saying that the plaintiff himself was not free
from fault, for he was guilty of antecedent negligence in
planting himself in the wrong side of the road. But as we
have already stated, the defendant was also negligent; and
in such case the problem always is to discover which agent
is immediately and directly responsible. It will be noted that
the negligent acts of the two parties were not
contemporaneous, since the negligence of the defendant
succeeded the negligence of the plaintiff by an appreciable
interval. Under these circumstances, the law is that a
person who has the last clear chance to avoid the
impending harm and fails to do so is chargeable with the
consequences, without reference to the prior negligence of
the other party. (Picart vs. Smith, 37 Phil., 809)

The last clear chance doctrine can never apply where the
party charged is required to act instantaneously, and if
the injury cannot be avoided by the application of all
means at hand after the peril is or should have been
discovered; at least in cases in which any previous
negligence of the party charged cannot be said to have
contributed to the injury. O'Mally vs. Eagan, 77 ALR 582,
43 Wyo. 233, 350, 2, P2d 1063. (A.L.R. Digest, Vol. 8, pp.
955-956)
Before closing, we wish to quote the following observation of
the trial court, which we find supported by the evidence: "There
is (also) a strong suggestion coming from the expert evidence
presented by both parties that Dominador Ong might have
dived where the water was only 5.5 feet deep, and in so doing
he might have hit or bumped his forehead against the bottom of
the pool, as a consequence of which he was stunned, and which
to his drowning. As a boy scout he must have received
instructions in swimming. He knew, or have known that it was
dangerous for him to dive in that part of the pool."
Wherefore, the decision appealed from being in accordance with
law and the evidence, we hereby affirm the same, without
pronouncement as to costs.
Paras, C. J., Bengzon, Padilla, Montemayor, Reyes,
Concepcion, Reyes, J. B. L., Endencia and Felix, JJ.,concur.

A.,

Since it is not known how minor Ong came into the big swimming
pool and it being apparent that he went there without any
companion in violation of one of the regulations of appellee as
regards the use of the pools, and it appearing that lifeguard
Aba__o responded to the call for help as soon as his attention was
called to it and immediately after retrieving the body all efforts at
the disposal of appellee had been put into play in order to bring
him back to life, it is clear that there is no room for the application
of the doctrine now invoked by appellants to impute liability to
appellee..

73