1

TORTS CASES PRELIM 1st Set

G.R. No. L-48006

July 8, 1942

FAUSTO
vs.
SEVERINO GARCIA and TIMOTEA ALMARIO, respondents.
Celedonio
P.
Gloria
Jose G. Advincula for respondents.

and

BARREDO, petitioner,

Antonio

Barredo

for

petitioner.

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 headon 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

TORTS CASES PRELIM 1st Set

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

xxx

xxx

ART. 1092. Civil obligations arising from felonies or misdemeanors shall be governed by the provisions of the Penal Code.
ART. 1093. Those which are derived from acts or omissions in which fault or negligence, not punishable by law, intervenes
shall be subject to the provisions of Chapter II, Title XVI of this book.
xxx

xxx

xxx

ART 1902. Any person who by an act or omission causes damage to another by his fault or negligence shall be liable for the
damage so done.
ART. 1903. The obligation imposed by the next preceding article is enforcible, not only for personal acts and omissions, but
also for those of persons for whom another is responsible.
The father and in, case of his death or incapacity, the mother, are liable for any damages caused by the minor children who
live with them.
Guardians are liable for damages done by minors or incapacitated persons subject to their authority and living with them.
Owners or directors of an establishment or business are equally liable for any damages caused by their employees while
engaged in the branch of the service in which employed, or on occasion of the performance of their duties.
The State is subject to the same liability when it acts through a special agent, but not if the damage shall have been caused
by the official upon whom properly devolved the duty of doing the act performed, in which case the provisions of the next
preceding article shall be applicable.
Finally, teachers or directors of arts trades are liable for any damages caused by their pupils or apprentices while they are
under their custody.
The liability imposed by this article shall cease in case the persons mentioned therein prove that they are exercised all the
diligence of a good father of a family to prevent the damage.
ART. 1904. Any person who pays for damage caused by his employees may recover from the latter what he may have paid.
REVISED PENAL CODE
ART. 100. Civil liability of a person guilty of felony. Every person criminally liable for a felony is also civilly liable.
ART. 101. Rules regarding civil liability in certain cases. The exemption from criminal liability established in subdivisions 1,
2, 3, 5, and 6 of article 12 and in subdivision 4 of article 11 of this Code does not include exemption from civil liability, which
shall be enforced to the following rules:
First. In cases of subdivision, 1, 2 and 3 of article 12 the civil liability for acts committed by any imbecile or insane person,
and by a person under nine years of age, or by one over nine but under fifteen years of age, who has acted without
discernment shall devolve upon those having such person under their legal authority or control, unless it appears that there
was no fault or negligence on their part.
Should there be no person having such insane, imbecile or minor under his authority, legal guardianship, or control, or if
such person be insolvent, said insane, imbecile, or minor shall respond with their own property, excepting property exempt
from execution, in accordance with the civil law.
Second. In cases falling within subdivision 4 of article 11, the person for whose benefit the harm has been prevented shall be
civilly liable in proportion to the benefit which they may have received.
The courts shall determine, in their sound discretion, the proportionate amount for which each one shall be liable.
When the respective shares can not be equitably determined, even approximately, or when the liability also attaches to the
Government, or to the majority of the inhabitants of the town, and, in all events, whenever the damage has been caused with the
consent of the authorities or their agents, indemnification shall be made in the manner prescribed by special laws or regulations.

TORTS CASES PRELIM 1st Set

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 19020910. 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:

TORTS CASES PRELIM 1st Set

El concepto juridico de la responsabilidad civil abarca diversos aspectos y comprende a diferentes personas. Asi, existe una
responsabilidad civil propiamente dicha, que en ningun casl lleva aparejada responsabilidad criminal alguna, y otra que es
consecuencia indeclinable de la penal que nace de todo delito o falta."
The juridical concept of civil responsibility has various aspects and comprises different persons. Thus, there is a civil
responsibility, properly speaking, which in no case carries with it any criminal responsibility, and another which is a
necessary consequence of the penal liability as a result of every felony or misdemeanor."

Maura, an outstanding authority, was consulted on the following case: There had been a collision between two trains belonging
respectively to the Ferrocarril Cantabrico and the Ferrocarril del Norte. An employee of the latter had been prosecuted in a criminal
case, in which the company had been made a party as subsidiarily responsible in civil damages. The employee had been acquitted in
the criminal case, and the employer, the Ferrocarril del Norte, had also been exonerated. The question asked was whether the
Ferrocarril Cantabrico could still bring a civil action for damages against the Ferrocarril del Norte. Maura's opinion was in the
affirmative, stating in part (Maura, Dictamenes, Vol. 6, pp. 511-513):
Quedando las cosas asi, a proposito de la realidad pura y neta de los hechos, todavia menos parece sostenible que
exista cosa juzgada acerca de la obligacion civil de indemnizar los quebrantos y menoscabos inferidos por el choque de los
trenes. El titulo en que se funda la accion para demandar el resarcimiento, no puede confundirse con las responsabilidades
civiles nacidas de delito, siquiera exista en este, sea el cual sea, una culpa rodeada de notas agravatorias que motivan
sanciones penales, mas o menos severas. La lesion causada por delito o falta en los derechos civiles, requiere restituciones,
reparaciones o indemnizaciones, que cual la pena misma ataen al orden publico; por tal motivo vienen encomendadas, de
ordinario, al Ministerio Fiscal; y claro es que si por esta via se enmiendan los quebrantos y menoscabos, el agraviado excusa
procurar el ya conseguido desagravio; pero esta eventual coincidencia de los efectos, no borra la diversidad originaria de las
acciones civiles para pedir indemnizacion.
Estas, para el caso actual (prescindiendo de culpas contractuales, que no vendrian a cuento y que tiene otro regimen),
dimanan, segun el articulo 1902 del Codigo Civil, de toda accion u omision, causante de daos o perjuicios, en que
intervenga culpa o negligencia. Es trivial que acciones semejantes son ejercitadas ante los Tribunales de lo civil
cotidianamente, sin que la Justicia punitiva tenga que mezclarse en los asuntos. Los articulos 18 al 21 y 121 al 128 del
Codigo Penal, atentos al espiritu y a los fines sociales y politicos del mismo, desenvuelven y ordenan la materia de
responsabilidades civiles nacidas de delito, en terminos separados del regimen por ley comun de la culpa que se denomina
aquiliana, por alusion a precedentes legislativos del Corpus Juris. Seria intempestivo un paralelo entre aquellas
ordenaciones, y la de la obligacion de indemnizar a titulo de culpa civil; pero viene al caso y es necesaria una de las
diferenciaciones que en el tal paralelo se notarian.
Los articulos 20 y 21 del Codigo Penal, despues de distribuir a su modo las responsabilidades civiles, entre los que sean por
diversos conceptos culpables del delito o falta, las hacen extensivas a las empresas y los establecimientos al servicio de los
cuales estan los delincuentes; pero con caracter subsidiario, o sea, segun el texto literal, en defecto de los que sean
responsables criminalmente. No coincide en ello el Codigo Civil, cuyo articulo 1903, dice; La obligacion que impone el
articulo anterior es exigible, no solo por los actos y omisiones propios, sino por los de aquellas personas de quienes se debe
responder; personas en la enumeracion de las cuales figuran los dependientes y empleados de los establecimientos o
empresas, sea por actos del servicio, sea con ocasion de sus funciones. Por esto acontece, y se observa en la jurisprudencia,
que las empresas, despues de intervenir en las causas criminales con el caracter subsidiario de su responsabilidad civil por
razon del delito, son demandadas y condenadas directa y aisladamente, cuando se trata de la obligacion, ante los tribunales
civiles.
Siendo como se ve, diverso el titulo de esta obligacion, y formando verdadero postulado de nuestro regimen judicial la
separacion entre justicia punitiva y tribunales de lo civil, de suerte que tienen unos y otros normas de fondo en distintos
cuerpos legales, y diferentes modos de proceder, habiendose, por aadidura, abstenido de asistir al juicio criminal la
Compaia del Ferrocarril Cantabrico, que se reservo ejercitar sus acciones, parece innegable que la de indemnizacion por los
daos y perjuicios que le irrogo el choque, no estuvo sub judice ante el Tribunal del Jurado, ni fue sentenciada, sino que
permanecio intacta, al pronunciarse el fallo de 21 de marzo. Aun cuando el veredicto no hubiese sido de inculpabilidad,
mostrose mas arriba, que tal accion quedaba legitimamente reservada para despues del proceso; pero al declararse que no
existio delito, ni responsabilidad dimanada de delito, materia unica sobre que tenian jurisdiccion aquellos juzgadores, se
redobla el motivo para la obligacion civil ex lege, y se patentiza mas y mas que la accion para pedir su cumplimiento
permanece incolume, extraa a la cosa juzgada.
As things are, apropos of the reality pure and simple of the facts, it seems less tenable that there should 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 effects does not eliminate the peculiar nature of civil actions to
ask for indemnity.
Such civil actions in the present case (without referring to contractual faults which are not pertinent and belong to another
scope) are derived, according to article 1902 of the Civil Code, from every act or omission causing losses and damages in
which culpa or negligence intervenes. It is unimportant that such actions are every day filed before the civil courts without
the criminal courts interfering therewith. Articles 18 to 21 and 121 to 128 of the Penal Code, bearing in mind the spirit and

TORTS CASES PRELIM 1st Set

the social and political purposes of that Code, develop and regulate the matter of civil responsibilities arising from a crime,
separately from the regime under common law, of culpa which is known as aquiliana, in accordance with legislative
precedent of the Corpus Juris. It would be unwarranted to make a detailed comparison between the former provisions and
that regarding the obligation to indemnify on account of civil culpa; but it is pertinent and necessary to point out to one of
such differences.
Articles 20 and 21 of the Penal Code, after distriburing in their own way the civil responsibilities among those who, for
different reasons, are guilty of felony or misdemeanor, make such civil responsibilities applicable to enterprises and
establishments for which the guilty parties render service, but with subsidiary character, that is to say, according to the
wording of the Penal Code, in default of those who are criminally responsible. In this regard, the Civil Code does not coincide
because article 1903 says: "The obligation imposed by the next preceding article is demandable, not only for personal acts
and omissions, but also for those of persons for whom another is responsible." Among the persons enumerated are the
subordinates and employees of establishments or enterprises, either for acts during their service or on the occasion of their
functions. It is for this reason that it happens, and it is so observed in judicial decisions, that the companies or enterprises,
after taking part in the criminal cases because of their subsidiary civil responsibility by reason of the crime, are sued and
sentenced directly and separately with regard to the obligation, before the civil courts.
Seeing that the title of this obligation is different, and the separation between punitive justice and the civil courts being a
true postulate of our judicial system, so that they have different fundamental norms in different codes, as well as different
modes of procedure, and inasmuch as the Compaa del Ferrocarril Cantabrico has abstained from taking part in the criminal
case and has reserved the right to exercise its actions, it seems undeniable that the action for indemnification for the losses
and damages caused to it by the collision was not sub judice before the Tribunal del Jurado, nor was it the subject of a
sentence, but it remained intact when the decision of March 21 was rendered. Even if the verdict had not been that of
acquittal, it has already been shown that such action had been legitimately reserved till after the criminal prosecution; but
because of the declaration of the non-existence of the felony and the non-existence of the responsibility arising from the
crime, which was the sole subject matter upon which the Tribunal del Juradohad jurisdiction, there is greater reason for the
civil obligation ex lege, and it becomes clearer that the action for its enforcement remain intact and is not res judicata.

Laurent, a jurist who has written a monumental work on the French Civil Code, on which the Spanish Civil Code is largely based and
whose provisions on cuasi-delito or culpa 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

TORTS CASES PRELIM 1st Set

razona la responsabilidad. Esta responsabilidad, es directa o es subsidiaria? En el orden penal, el Codigo de esta clase
distingue entre menores e incapacitados y los demas, declarando directa la primera (articulo 19) y subsidiaria la segunda
(articulos 20 y 21); pero en el orden civil, en el caso del articulo 1903, ha de entenderse directa, por el tenor del articulo que
impone la responsabilidad precisamente "por los actos de aquellas personas de quienes se deba responder."
That is to say, one is not responsible for the acts of others, because one is liable only for his own faults, this being the
doctrine of article 1902; but, by exception, one is liable for the acts of those persons with whom there is a bond or tie which
gives rise to the responsibility. Is this responsibility direct or subsidiary? In the order of the penal law, the Penal Code
distinguishes between minors and incapacitated persons on the one hand, and other persons on the other, declaring that the
responsibility for the former is direct (article 19), and for the latter, subsidiary (articles 20 and 21); but in the scheme of the
civil law, in the case of article 1903, the responsibility should be understood as direct, according to the tenor of that articles,
for precisely it imposes responsibility "for the acts of those persons for whom one should be responsible."

Coming now to the sentences of the Supreme Tribunal of Spain, that court has upheld the principles above set forth: that a quasidelict or culpa extra-contractual is a separate and distinct legal institution, independent from the civil responsibility arising from
criminal liability, and that an employer is, under article 1903 of the Civil Code, primarily and directly responsible for the negligent acts
of his employee.
One of the most important of those Spanish decisions is that of October 21, 1910. In that case, Ramon Lafuente died as the result of
having been run over by a street car owned by the "compaia Electric Madrilea de Traccion." The conductor was prosecuted in a
criminal case but he was acquitted. Thereupon, the widow filed a civil action against the street car company, paying for damages in
the amount of 15,000 pesetas. The lower court awarded damages; so the company appealed to the Supreme Tribunal, alleging
violation of articles 1902 and 1903 of the Civil Code because by final judgment the non-existence of fault or negligence had been
declared. The Supreme Court of Spain dismissed the appeal, saying:
Considerando que el primer motivo del recurso se funda en el equivocado supuesto de que el Tribunal a quo, al condonar a
la compaia Electrica Madrilea al pago del dao causado con la muerte de Ramon La fuente Izquierdo, desconoce el valor y
efectos juridicos de la sentencia absolutoria deictada en la causa criminal que se siguio por el mismo hecho, cuando es lo
cierto que de este han conocido las dos jurisdicciones bajo diferentes as pectos, y como la de lo criminal declrao dentro de
los limites de su competencia que el hecho de que se trata no era constitutivo de delito por no haber mediado descuido o
negligencia graves, lo que no excluye, siendo este el unico fundamento del fallo absolutorio, el concurso de la culpa o
negligencia no califacadas, fuente de obligaciones civiles segun el articulo 1902 del Codigo, y que alcanzan, segun el 1903,
netre otras perosnas, a los Directores de establecimientos o empresas por los daos causados por sus dependientes en
determinadas condiciones, es manifesto que la de lo civil, al conocer del mismo hehco baho este ultimo aspecto y al
condenar a la compaia recurrente a la indemnizacion del dao causado por uno de sus empleados, lejos de infringer los
mencionados textos, en relacion con el articulo 116 de la Ley de Enjuciamiento Criminal, se ha atenido estrictamente a ellos,
sin invadir atribuciones ajenas a su jurisdiccion propia, ni contrariar en lo mas minimo el fallo recaido en la causa.
Considering that the first ground of the appeal is based on the mistaken supposition that the trial court, in sentencing
the Compaia Madrilea to the payment of the damage caused by the death of Ramon Lafuente Izquierdo, disregards the
value and juridical effects of the sentence of acquittal rendered in the criminal case instituted on account of the same act,
when it is a fact that the two jurisdictions had taken cognizance of the same act in its different aspects, and as the criminal
jurisdiction declared within the limits of its authority that the act in question did not constitute a felony because there was no
grave carelessness or negligence, and this being the only basis of acquittal, it does no exclude the co-existence of fault or
negligence which is not qualified, and is a source of civil obligations according to article 1902 of the Civil Code , affecting, in
accordance with article 1903, among other persons, the managers of establishments or enterprises by reason of the
damages caused by employees under certain conditions, it is manifest that the civil jurisdiccion in taking cognizance of the
same act in this latter aspect and in ordering the company, appellant herein, to pay an indemnity for the damage caused by
one of its employees, far from violating said legal provisions, in relation with article 116 of the Law of Criminal
Procedure, strictly followed the same, without invading attributes which are beyond its own jurisdiction, and without in any
way contradicting the decision in that cause. (Emphasis supplied.)
It will be noted, as to the case just cited:
First. That the conductor was not sued in a civil case, either separately or with the street car company. This is precisely what happens
in the present case: the driver, Fontanilla, has not been sued in a civil action, either alone or with his employer.
Second. That the conductor had been acquitted of grave criminal negligence, but the Supreme Tribunal of Spain said that this did not
exclude the co-existence of fault or negligence, which is not qualified, on the part of the conductor, under article 1902 of the Civil
Code. In the present case, the taxi driver was found guilty of criminal negligence, so that if he had even sued for his civil
responsibility arising from the crime, he would have been held primarily liable for civil damages, and Barredo would have been held
subsidiarily liable for the same. But the plaintiffs are directly suing Barredo, on his primary responsibility because of his own
presumed negligence which he did not overcome under article 1903. Thus, there were two liabilities of Barredo: first, the
subsidiary one because of the civil liability of the taxi driver arising from the latter's criminal negligence; and, second, Barredo's
primary liability as an employer under article 1903. The plaintiffs were free to choose which course to take, and they preferred the
second remedy. In so doing, they were acting within their rights. It might be observed in passing, that the plaintiff choose the more
expeditious and effective method of relief, because Fontanilla was either in prison, or had just been released, and besides, he was
probably without property which might be seized in enforcing any judgment against him for damages.

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Third. That inasmuch as in the above sentence of October 21, 1910, the employer was held liable civilly, notwithstanding the
acquittal of the employee (the conductor) in a previous criminal case, with greater reason should Barredo, the employer in the case at
bar, be held liable for damages in a civil suit filed against him because his taxi driver had been convicted. The degree of negligence
of the conductor in the Spanish case cited was less than that of the taxi driver, Fontanilla, because the former was acquitted in the
previous criminal case while the latter was found guilty of criminal negligence and was sentenced to an indeterminate sentence of
one year and one day to two years of prision correccional.
(See also Sentence of February 19, 1902, which is similar to the one above quoted.)
In the Sentence of the Supreme Court of Spain, dated February 14, 1919, an action was brought against a railroad company for
damages because the station agent, employed by the company, had unjustly and fraudulently, refused to deliver certain articles
consigned to the plaintiff. The Supreme Court of Spain held that this action was properly under article 1902 of the Civil Code, the
court saying:
Considerando que la sentencia discutida reconoce, en virtud de los hechos que consigna con relacion a las pruebas del
pleito: 1., que las expediciones facturadas por la compaia ferroviaria a la consignacion del actor de las vasijas vacias que
en su demanda relacionan tenian como fin el que este las devolviera a sus remitentes con vinos y alcoholes; 2., que
llegadas a su destino tales mercanias no se quisieron entregar a dicho consignatario por el jefe de la estacion sin motivo
justificado y con intencion dolosa, y 3., que la falta de entrega de estas expediciones al tiempo de reclamarlas el
demandante le originaron daos y perjuicios en cantidad de bastante importancia como expendedor al por mayor que era de
vinos y alcoholes por las ganancias que dejo de obtener al verse privado de servir los pedidos que se le habian hecho por los
remitentes en los envases:
Considerando que sobre esta base hay necesidad de estimar los cuatro motivos que integran este recurso, porque la
demanda inicial del pleito a que se contrae no contiene accion que nazca del incumplimiento del contrato de transporte,
toda vez que no se funda en el retraso de la llegada de las mercancias ni de ningun otro vinculo contractual entre las partes
contendientes, careciendo, por tanto, de aplicacion el articulo 371 del Codigo de Comercio, en que principalmente descansa
el fallo recurrido, sino que se limita a pedir la reparaction de los daos y perjuicios producidos en el patrimonio del actor por
la injustificada y dolosa negativa del porteador a la entrega de las mercancias a su nombre consignadas, segun lo reconoce
la sentencia, y cuya responsabilidad esta claramente sancionada en el articulo 1902 del Codigo Civil, que obliga por el
siguiente a la Compaia demandada como ligada con el causante de aquellos por relaciones de caracter economico y de
jurarquia administrativa.
Considering that the sentence, in question recognizes, in virtue of the facts which it declares, in relation to the evidence in
the case: (1) that the invoice issued by the railroad company in favor of the plaintiff contemplated that the empty
receptacles referred to in the complaint should be returned to the consignors with wines and liquors; (2) that when the said
merchandise reached their destination, their delivery to the consignee was refused by the station agent without justification
and with fraudulent intent, and (3) that the lack of delivery of these goods when they were demanded by the plaintiff caused
him losses and damages of considerable importance, as he was a wholesale vendor of wines and liquors and he failed to
realize the profits when he was unable to fill the orders sent to him by the consignors of the receptacles:
Considering that upon this basis there is need of upholding the four assignments of error, as the original complaint did not
contain any cause of action arising from non-fulfillment of a contract of transportation, because the action was not based on
the delay of the goods nor on any contractual relation between the parties litigant and, therefore, article 371 of the Code of
Commerce, on which the decision appealed from is based, is not applicable; but it limits to asking for reparation for losses
and damages produced on the patrimony of the plaintiff on account of the unjustified and fraudulent refusal of the carrier to
deliver the goods consigned to the plaintiff as stated by the sentence, and the carrier's responsibility is clearly laid down in
article 1902 of the Civil Code which binds, in virtue of the next article, the defendant company, because the latter is
connected with the person who caused the damage by relations of economic character and by administrative hierarchy.
(Emphasis supplied.)
The above case is pertinent because it shows that the same act may come under both the Penal Code and the Civil Code. In that
case, the action of the agent was unjustified and fraudulent and therefore could have been the subject of a criminal action. And yet, it
was held to be also a proper subject of a civil action under article 1902 of the Civil Code. It is also to be noted that it was the
employer and not the employee who was being sued.
Let us now examine the cases previously decided by this Court.
In the leading case of Rakes vs. Atlantic Gulf and Pacific Co. (7 Phil., 359, 362-365 [year 1907]), the trial court awarded damages to
the plaintiff, a laborer of the defendant, because the latter had negligently failed to repair a tramway in consequence of which the
rails slid off while iron was being transported, and caught the plaintiff whose leg was broken. This Court held:
It is contended by the defendant, as its first defense to the action that the necessary conclusion from these collated laws is
that the remedy for injuries through negligence lies only in a criminal action in which the official criminally responsible must
be made primarily liable and his employer held only subsidiarily to him. According to this theory the plaintiff should have
procured the arrest of the representative of the company accountable for not repairing the track, and on his prosecution a
suitable fine should have been imposed, payable primarily by him and secondarily by his employer.

TORTS CASES PRELIM 1st Set

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

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"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

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xxx

"The liability referred to in this article shall cease when the persons mentioned therein prove that they employed all
the diligence of a good father of a family to avoid the damage."
As an answer to the argument urged in this particular action it may be sufficient to point out that nowhere in our general
statutes is the employer penalized for failure to provide or maintain safe appliances for his workmen. His obligation therefore
is one 'not punished by the laws' and falls under civil rather than criminal jurisprudence. But the answer may be a broader
one. We should be reluctant, under any conditions, to adopt a forced construction of these scientific codes, such as is
proposed by the defendant, that would rob some of these articles of effect, would shut out litigants against their will from the
civil courts, would make the assertion of their rights dependent upon the selection for prosecution of the proper criminal
offender, and render recovery doubtful by reason of the strict rules of proof prevailing in criminal actions. Even if these
articles had always stood alone, such a construction would be unnecessary, but clear light is thrown upon their meaning by
the provisions of the Law of Criminal Procedure of Spain (Ley de Enjuiciamiento Criminal), which, though never in actual
force in these Islands, was formerly given a suppletory or explanatory effect. Under article 111 of this law, both classes of
action, civil and criminal, might be prosecuted jointly or separately, but while the penal action was pending the civil was
suspended. According to article 112, the penal action once started, the civil remedy should be sought therewith, unless it
had been waived by the party injured or been expressly reserved by him for civil proceedings for the future. If the civil action
alone was prosecuted, arising out of a crime that could be enforced only on private complaint, the penal action thereunder
should be extinguished. These provisions are in harmony with those of articles 23 and 133 of our Penal Code on the same
subject.
An examination of this topic might be carried much further, but the citation of these articles suffices to show that the civil
liability was not intended to be merged in the criminal nor even to be suspended thereby, except as expressly provided in
the law. Where an individual is civilly liable for a negligent act or omission, it is not required that the injured party should
seek out a third person criminally liable whose prosecution must be a condition precedent to the enforcement of the civil
right.
Under article 20 of the Penal Code the responsibility of an employer may be regarded as subsidiary in respect of criminal
actions against his employees only while they are in process of prosecution, or in so far as they determine the existence of
the criminal act from which liability arises, and his obligation under the civil law and its enforcement in the civil courts is not
barred thereby unless by the election of the injured person. Inasmuch as no criminal proceeding had been instituted,
growing our of the accident in question, the provisions of the Penal Code can not affect this action. This construction renders
it unnecessary to finally determine here whether this subsidiary civil liability in penal actions has survived the laws that fully
regulated it or has been abrogated by the American civil and criminal procedure now in force in the Philippines.
The difficulty in construing the articles of the code above cited in this case appears from the briefs before us to have arisen
from the interpretation of the words of article 1093, "fault or negligence not punished by law," as applied to the
comprehensive definition of offenses in articles 568 and 590 of the Penal Code. It has been shown that the liability of an
employer arising out of his relation to his employee who is the offender is not to be regarded as derived from negligence
punished by the law, within the meaning of articles 1902 and 1093. More than this, however, it cannot be said to fall within
the class of acts unpunished by the law, the consequence of which are regulated by articles 1902 and 1903 of the Civil Code.
The acts to which these articles are applicable are understood to be those not growing out of pre-existing duties of the
parties to one another. But where relations already formed give rise to duties, whether springing from contract or quasi
contract, then breaches of those duties are subject to articles 1101, 1103, and 1104 of the same code. A typical application
of this distinction may be found in the consequences of a railway accident due to defective machinery supplied by the
employer. His liability to his employee would arise out of the contract of employment, that to the passengers out of the
contract for passage, while that to the injured bystander would originate in the negligent act itself.
In Manzanares vs. Moreta, 38 Phil., 821 (year 1918), the mother of the 8 of 9-year-old child Salvador Bona brought a civil action
against Moreta to recover damages resulting from the death of the child, who had been run over by an automobile driven and

TORTS CASES PRELIM 1st Set

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 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:

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TORTS CASES PRELIM 1st Set

"The liability referred to in this article shall cease when the persons mentioned therein prove that they employed all
the diligence of a good father of a family to avoid the damage."
From this article two things are apparent: (1) That when an injury is caused by the negligence of a servant or employee there
instantly arises a presumption of law that there was negligence on the part of the matter or employer either in the selection
of the servant or employee, or in supervision over him after the selection, or both; and (2) that presumption is juris
tantum and not juris et de jure, and consequently, may be rebutted. It follows necessarily that if the employer shows to the
satisfaction of the court that in selection and supervision he has exercised the care and diligence of a good father of a
family, the presumption is overcome and he is relieve from liability.
This theory bases the responsibility of the master ultimately on his own negligence and not on that of his servant.

The doctrine of the case just cited was followed by this Court in Cerf vs. Medel (33 Phil., 37 [year 1915]). In the latter case, the
complaint alleged that the defendant's servant had so negligently driven an automobile, which was operated by defendant as a public
vehicle, that said automobile struck and damaged the plaintiff's motorcycle. This Court, applying article 1903 and following the rule
in Bahia vs. Litonjua and Leynes, said in part (p. 41) that:
The master is liable for the negligent acts of his servant where he is the owner or director of a business or enterprise and the
negligent acts are committed while the servant is engaged in his master's employment as such owner.
Another case which followed the decision in Bahia vs. Litonjua and Leynes was Cuison vs. Norton & Harrison Co., 55 Phil., 18 (year
1930). The latter case was an action for damages brought by Cuison for the death of his seven-year-old son Moises. The little boy was
on his way to school with his sister Marciana. Some large pieces of lumber fell from a truck and pinned the boy underneath, instantly
killing him. Two youths, Telesforo Binoya and Francisco Bautista, who were working for Ora, an employee of defendant Norton &
Harrison Co., pleaded guilty to the crime of homicide through reckless negligence and were sentenced accordingly. This Court,
applying articles 1902 and 1903, held:
The basis of civil law liability is not respondent superior but the relationship of pater familias. This theory bases the liability
of the master ultimately on his own negligence and not on that of his servant. (Bahia vs.Litonjua and Leynes [1915], 30 Phil.,
624; Cangco vs. Manila Railroad Co. [1918], 38 Phil., 768.)
In Walter A. Smith & Co. vs. Cadwallader Gibson Lumber Co., 55 Phil., 517 (year 1930) the plaintiff brought an action for damages for
the demolition of its wharf, which had been struck by the steamer Helen C belonging to the defendant. This Court held (p. 526):
The evidence shows that Captain Lasa at the time the plaintiff's wharf collapsed was a duly licensed captain, authorized to
navigate and direct a vessel of any tonnage, and that the appellee contracted his services because of his reputation as a
captain, according to F. C. Cadwallader. This being so, we are of the opinion that the presumption of liability against the
defendant has been overcome by the exercise of the care and diligence of a good father of a family in selecting Captain
Lasa, in accordance with the doctrines laid down by this court in the cases cited above, and the defendant is therefore
absolved from all liability.
It is, therefore, seen that the defendant's theory about his secondary liability is negatived by the six cases above set forth. He is, on
the authority of these cases, primarily and directly responsible in damages under article 1903, in relation to article 1902, of the Civil
Code.
Let us now take up the Philippine decisions relied upon by the defendant. We study first, City of Manila vs. Manila Electric Co., 52 Phil.,
586 (year 1928). A collision between a truck of the City of Manila and a street car of the Manila Electric Co. took place on June 8,
1925. The truck was damaged in the amount of P1,788.27. Sixto Eustaquio, the motorman, was prosecuted for the crime of damage
to property and slight injuries through reckless imprudence. He was found guilty and sentenced to pay a fine of P900, to indemnify
the City of Manila for P1,788.27, with subsidiary imprisonment in case of insolvency. Unable to collect the indemnity from Eustaquio,
the City of Manila filed an action against the Manila Electric Company to obtain payment, claiming that the defendant was subsidiarily
liable. The main defense was that the defendant had exercised the diligence of a good father of a family to prevent the damage. The
lower court rendered judgment in favor of the plaintiff. This Court held, in part, that this case was governed by the Penal Code,
saying:
With this preliminary point out of the way, there is no escaping the conclusion that the provisions of the Penal Code govern.
The Penal Code in easily understandable language authorizes the determination of subsidiary liability. The Civil Code
negatives its application by providing that civil obligations arising from crimes or misdemeanors shall be governed by the
provisions of the Penal Code. The conviction of the motorman was a misdemeanor falling under article 604 of the Penal
Code. The act of the motorman was not a wrongful or negligent act or omission not punishable by law. Accordingly, the civil
obligation connected up with the Penal Code and not with article 1903 of the Civil Code. In other words, the Penal Code
affirms its jurisdiction while the Civil Code negatives its jurisdiction. This is a case of criminal negligence out of which civil
liability arises and not a case of civil negligence.
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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

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had exercised all diligence in the selection and training of its servants to prevent the damage. That would be a good defense
to a strictly civil action, but might or might not be to a civil action either as a part of or predicated on conviction for a crime
or misdemeanor. (By way of parenthesis, it may be said further that the statements here made are offered to meet the
argument advanced during our deliberations to the effect that article 0902 of the Civil Code should be disregarded and codal
articles 1093 and 1903 applied.)

It is not clear how the above case could support the defendant's proposition, because the Court of Appeals based its decision in the
present case on the defendant's primary responsibility under article 1903 of the Civil Code and not on his subsidiary liability arising
from Fontanilla's criminal negligence. In other words, the case of City of Manila vs. Manila Electric Co., supra, is predicated on an
entirely different theory, which is the subsidiary liability of an employer arising from a criminal act of his employee, whereas the
foundation of the decision of the Court of Appeals in the present case is the employer's primary liability under article 1903 of the Civil
Code. We have already seen that this is a proper and independent remedy.
Arambulo vs. Manila Electric Co. (55 Phil., 75), is another case invoked by the defendant. A motorman in the employ of the Manila
Electric Company had been convicted o homicide by simple negligence and sentenced, among other things, to pay the heirs of the
deceased the sum of P1,000. An action was then brought to enforce the subsidiary liability of the defendant as employer under the
Penal Code. The defendant attempted to show that it had exercised the diligence of a good father of a family in selecting the
motorman, and therefore claimed exemption from civil liability. But this Court held:
In view of the foregoing considerations, we are of opinion and so hold, (1) that the exemption from civil liability established
in article 1903 of the Civil Code for all who have acted with the diligence of a good father of a family, is not applicable to the
subsidiary civil liability provided in article 20 of the Penal Code.
The above case is also extraneous to the theory of the defendant in the instant case, because the action there had for its purpose the
enforcement of the defendant's subsidiary liability under the Penal Code, while in the case at bar, the plaintiff's cause of action is
based on the defendant's primary and direct responsibility under article 1903 of the Civil Code. In fact, the above case destroys the
defendant's contention because that decision illustrates the principle that the employer's primary responsibility under article 1903 of
the Civil Code is different in character from his subsidiary liability under the Penal Code.
In trying to apply the two cases just referred to, counsel for the defendant has failed to recognize the distinction between civil liability
arising from a crime, which is governed by the Penal Code, and the responsibility for cuasi-delito or culpa aquiliana under the Civil
Code, and has likewise failed to give the importance to the latter type of civil action.
The defendant-petitioner also cites Francisco vs. Onrubia (46 Phil., 327). That case need not be set forth. Suffice it to say that the
question involved was also civil liability arising from a crime. Hence, it is as inapplicable as the two cases above discussed.
The foregoing authorities clearly demonstrate the separate individuality of cuasi-delitos or culpa aquiliana under the Civil Code.
Specifically they show that there is a distinction between civil liability arising from criminal negligence (governed by the Penal Code)
and responsibility for fault or negligence under articles 1902 to 1910 of the Civil Code, and that the same negligent act may produce
either a civil liability arising from a crime under the Penal Code, or a separate responsibility for fault or negligence under articles 1902
to 1910 of the Civil Code. Still more concretely, the authorities above cited render it inescapable to conclude that the employer in
this case the defendant-petitioner is primarily and directly liable under article 1903 of the Civil Code.
The legal provisions, authors, and cases already invoked should ordinarily be sufficient to dispose of this case. But inasmuch as we
are announcing doctrines that have been little understood in the past, it might not be inappropriate to indicate their foundations.
Firstly, the Revised Penal Code in article 365 punishes not only reckless but also simple negligence. If we were to hold that articles
1902 to 1910 of the Civil Code refer only to fault or negligence not punished by law, according to the literal import of article 1093 of
the Civil Code, the legal institution of culpa aquiliana would have very little scope and application in actual life. Death or injury to
persons and damage to property through any degree of negligence even the slightest would have to be indemnified only
through the principle of civil liability arising from a crime. In such a state of affairs, what sphere would remain for cuasi-delito or culpa
aquiliana? We are loath to impute to the lawmaker any intention to bring about a situation so absurd and anomalous. Nor are we, in
the interpretation of the laws, disposed to uphold the letter that killeth rather than the spirit that giveth life. We will not use the literal
meaning of the law to smother and render almost lifeless a principle of such ancient origin and such full-grown development as culpa
aquiliana or cuasi-delito, which is conserved and made enduring in articles 1902 to 1910 of the Spanish Civil Code.
Secondly, to find the accused guilty in a criminal case, proof of guilt beyond reasonable doubt is required, while in a civil case,
preponderance of evidence is sufficient to make the defendant pay in damages. There are numerous cases of criminal negligence
which can not be shown beyond reasonable doubt, but can be proved by a preponderance of evidence. In such cases, the defendant
can and should be made responsible in a civil action under articles 1902 to 1910 of the Civil Code. Otherwise, there would be many
instances of unvindicated civil wrongs. Ubi jus ibi remedium.
Thirdly, to hold that there is only one way to make defendant's liability effective, and that is, to sue the driver and exhaust his (the
latter's) property first, would be tantamount to compelling the plaintiff to follow a devious and cumbersome method of obtaining
relief. True, there is such a remedy under our laws, but there is also a more expeditious way, which is based on the primary and direct
responsibility of the defendant under article 1903 of the Civil Code. Our view of the law is more likely to facilitate remedy for civil
wrongs, because the procedure indicated by the defendant is wasteful and productive of delay, it being a matter of common
knowledge that professional drivers of taxis and similar public conveyance usually do not have sufficient means with which to pay

12

TORTS CASES PRELIM 1st Set

damages. Why, then, should the plaintiff be required in all cases to go through this roundabout, unnecessary, and probably useless
procedure? In construing the laws, courts have endeavored to shorten and facilitate the pathways of right and justice.
At this juncture, it should be said that the primary and direct responsibility of employers and their presumed negligence are principles
calculated to protect society. Workmen and employees should be carefully chosen and supervised in order to avoid injury to the
public. It is the masters or employers who principally reap the profits resulting from the services of these servants and employees. It
is but right that they should guarantee the latter's careful conduct for the personnel and patrimonial safety of others. As Theilhard
has said, "they should reproach themselves, at least, some for their weakness, others for their poor selection and all for their
negligence." And according to Manresa, "It is much more equitable and just that such responsibility should fall upon the principal or
director who could have chosen a careful and prudent employee, and not upon the injured person who could not exercise such
selection and who used such employee because of his confidence in the principal or director." (Vol. 12, p. 622, 2nd Ed.) Many jurists
also base this primary responsibility of the employer on the principle of representation of the principal by the agent. Thus, Oyuelos
says in the work already cited (Vol. 7, p. 747) that before third persons the employer and employee "vienen a ser como una sola
personalidad, por refundicion de la del dependiente en la de quien le emplea y utiliza." ("become as one personality by the merging
of the person of the employee in that of him who employs and utilizes him.") All these observations acquire a peculiar force and
significance when it comes to motor accidents, and there is need of stressing and accentuating the responsibility of owners of motor
vehicles.
Fourthly, because of the broad sweep of the provisions of both the Penal Code and the Civil Code on this subject, which has given rise
to the overlapping or concurrence of spheres already discussed, and for lack of understanding of the character and efficacy of the
action for culpa aquiliana, there has grown up a common practice to seek damages only by virtue of the civil responsibility arising
from a crime, forgetting that there is another remedy, which is by invoking articles 1902-1910 of the Civil Code. Although this
habitual method is allowed by our laws, it has nevertheless rendered practically useless and nugatory the more expeditious and
effective remedy based on culpa aquiliana or culpa extra-contractual. In the present case, we are asked to help perpetuate this usual
course. But we believe it is high time we pointed out to the harm done by such practice and to restore the principle of responsibility
for fault or negligence under articles 1902 et seq. of the Civil Code to its full rigor. It is high time we caused the stream of quasi-delict
or culpa aquiliana to flow on its own natural channel, so that its waters may no longer be diverted into that of a crime under the Penal
Code. This will, it is believed, make for the better safeguarding of private rights because it re-establishes an ancient and additional
remedy, and for the further reason that an independent civil action, not depending on the issues, limitations and results of a criminal
prosecution, and entirely directed by the party wronged or his counsel, is more likely to secure adequate and efficacious redress.
In view of the foregoing, the judgment of the Court of Appeals should be and is hereby affirmed, with costs against the defendantpetitioner.
G.R. No. L-26407 March 31, 1978
EUSEBIO
vs.
LA MALLORCA BUS COMPANY, defendant-appellee.

MENDOZA, plaintiff-appellant,

Alberto S. Plantilla for appellant.

Geminiano F. Yabut & Rafael Monterey for appellee.

GUERRERO, J.:
This is an appeal from the Decision of the Court of First Instance of Nueva Ecija in Civil Case No. 2626 entitled "Eusebio Mendoza,
Plaintiff, v. La Mallorca Bus Company, Defendant," raised to the Court of Appeals but certified to Us by said court 1 in its Resolution
dated July 26, 1966 as only questions of law were raised therein.
The facts are stated in the Resolution of the appellate court:
On April 3, 1950, at Plaridel, Bulacan, a collision occurred involving a freight truck of the plaintiff and a bus of the
defendant. A criminal case for damage to property thru reckless imprudence was brought against defendant's
driver, Claudio Arceo, (Criminal Case No. 1230, CFI-Bulacan). resulting in the conviction of said driver, which
conviction was affirmed by this Court in CA-G.R. No. 11602-R. in the said criminal case, the plaintiff made express
reservation for the filing of a separate civil action. In affirming the judgment of conviction imposed upon the
accused by the lower court, this Court modified the fine imposed, with the observation that the freight truck of the
plaintiff therein involved and damaged was worth only P5,000.00 and not P7,000.00 as found by the trial court.
On May 8, 1956, plaintiff filed a separate civil action for damages against the herein defendant, based on quasidelict under the Civil Code, which separate civil action (Case No. 2137) was ordered dismissed by the trial court
upon a finding that plaintiff's action, instituted exactly six years, one month and five days from the date of the
accident (which occurred on April 3, 1950) had already prescribed, which order became final without plaintiff having
appealed therefrom.

13

TORTS CASES PRELIM 1st Set

Subsequently, or on August 26, 1957, the plaintiff instituted the present action, based on the alleged subsidiary
liability of the defendant company under the Revised Penal Code. A motion for pre hearing under Rule 8, Sec. 5 of
the Rules of Court was filed in the lower Court in consequence of which the lower court, by order dated Dec. 3,
1958, ordered the dismissal of the case. The order of Jan. 20, 1959 denied the motion for reconsideration.
From the order of the lower court dated December 3, 1958 dismissing the instant action on the ground that the
dismissal of Civil Case No. 2137 was a bar to the present action, the plaintiff has appealed, alleging that the
following errors were committed by the lower court:
1. In holding that the dismissal of Civil Case No. 2137 operated as a bar to the filing of the present action; and
2. In dismissing the complaint.

We agree with the plaintiff-appellant. The lower court committed a reversible error in declaring that the dismissed of Civil Case No.
2137 operated as a bar to the filing of the present action.
It is well-settled in our jurisprudence that the essential requisites for the existence of res judicata are: (1) the former judgment must
be final; (2) it must have been rendered by a court having jurisdiction on the merits; (3) it must be a judgment on the merits; and (4)
there must be, between the first and second actions: (a) identity of parties; (b) identity of subject matter, and (c) identity of cause of
action. 2
A careful study of the case at bar presents a dispute as to only one of the above elements: Whether or not, as between Civil Case No.
2137 and the present action, there is Identity of causes of action.
We hold that, the two actions, namely, the civil action based on quasi-delict (Civil Case No. 2137) and the civil action based on c
liability (Civil Case No. 2626), are two separate and independent actions based on distinct causes of action. 3
The test of identity of causes of action is stated in tills wise: It lies not in the form of an action but on whether the same evidence
would support and establish the former and present causes of action. 4
Civil Case No. 2137 was an action for damages based on culpa aquiliana under Articles 2176 to 2194 of the New Civil Code for which
the defendant-appellee, as employer, was to be made primarily and directly liable for reason of his own negligence, either in the
selection or supervision of his driver; 5 the present action stems from the conviction by final judgement of defendant-appellee's driver
in the previous criminal case filed against said driver for damage to property through reckless imprudence (Crim. Case No. 1230),
damages for which defendant-appellee, as employer, is made subsidiarily liable under Art. 103 of the Revised Penal Code.
Applying the above-stated test, it is evident that res judicata cannot be a defense against the filing of the present action by petitioner.
Defendant-appellee could thwart an adverse decision in Civil Case No. 2137 by proving his due diligence in the selection of its
employees, but this same evidence will fail in the present action for his liability is inseparable from that of his driver once the latter is
finally convicted. 6
In the case of M.D. Transit & Taxi Co., Inc. v. Court of Appeals (22 SCRA 559), this Court declared the same principle in simpler terms:
The importance of this issue is due to the fact that appellant's alleged diligence in the selection of its employees
and in exercising supervision over them would be a good defense should the action be bard upon a quasi- delict,
but not ff predicated upon a liability springing from a crime.
The question presented before Us has already been resolved in the case of Jocson v. Glorioso, 7 where the issue under consideration is
"whether the previous dismissal of an action based on culpa aquiliana precludes the application of the plain and explicit command of
Art. 103 of the Revised Penal Code." There, this Court ruled in the negative having adopted this Court's decision in a previous
case, Diana v. Batangas Trans, Co. 8 where it was held:
Considering the distinguishing characteristics of the two cases, which involve two different remedies, it can hardly
be said that there is Identity of reliefs in both actions as to make the present case fall under the operation of Rule 8,
Section I (d) of the Rules of Court. In other words, it is a mistake to say that the present action should be dismissed
because of the pendency of another action between the same parties involving the same cause. Evidently, both
cases involve different causes of action. In fact. when the Court of Appeals dismissed the action based on culpa
aquiliana (Civil Case No. 8022), this distinction was stressed. It was there said that the negligent act committed by
defendant's employee is not a quasi crime, for such negligence is punished by law. What plaintiffs should have done
was to institute an action under Art. 103 of the Revised Penal Code (CA-G.R. No. 3632-R). And this is what plaintiffs
have done. To deprive them now of this remedy, after the conviction of defendant's employee, would be to deprive
them altogether of the indemnity to which they are entitled by law and by a court decision, which injustice it is our
duty to prevent.
This Court then concluded:

14

TORTS CASES PRELIM 1st Set

On the same principle then, the previous dismissal of the action based on culpa aquiliana could not be a bar to the
enforcement of the subsidiary liability required by Art. 103 of the Revised Penal Code.
What clearly emerges then is the controlling force of the principle that once there is a conviction for a felony, final
in character, the employer according to the plain and explicit command of Article 103 of the Revised Penal Code, is
subsidiarily liable, if it be shown that the commission thereof was in the discharge of the duties of such employee. 9

WHEREFORE, judgment is hereby entered setting aside the orders of the lower court dated December 3, 1958 and January 20, 1959
respectively dismissing the present action and denying plaintiff-appellant's motion for reconsideration. Let the case be remanded
below for further proceedings.
G.R. No. L-46179 January 31, 1978
CANDIDA VIRATA, TOMAS VIRATA, MANOLITO VIRATA, EDERLINDA VIRATA, NAPOLEON VIRATA, ARACELY VIRATA,
ZENAIDA
VIRATA,
LUZMINDA
VIRATA,
PACITA
VIRATA,
and
EVANGELINA
VIRATA,petitioners,
vs.
VICTORIO OCHOA, MAXIMO BORILLA and THE COURT OF FIRST INSTANCE OF CAVITE, 7th JUDICIAL DISTRICT, BRANCH V,
stationed at BACOOR, CAVITE, respondents.
Remulla, Estrella & Associates for petitioners
Exequil C. Masangkay for respondents.

FERNANDEZ, J.:
This is an appeal by certiorari, from the order of the Court of First Instance of Cavite, Branch V, in Civil Case No. B-134 granting the
motion of the defendants to dismiss the complaint on the ground that there is another action pending between the same parties for
the same cause. 1
The record shows that on September 24, 1975 one Arsenio Virata died as a result of having been bumped while walking along Taft
Avenue, Pasay City by a passenger jeepney driven by Maximo Borilla and registered in the name Of Victoria Ochoa; that Borilla is the
employer of Ochoa; that for the death of Arsenio Virata, a action for homicide through reckless imprudence was instituted on
September 25, 1975 against Maximo Borilla in the Court of First Instance of Rizal at Pasay City, docketed as C Case No. 3162-P of said
court; that at the hearing of the said criminal case on December 12, 1975, Atty. Julio Francisco, the private prosecutor, made a
reservation to file a separate civil action for damages against the driver on his criminal liability; that on February 19, 1976 Atty. Julio
Francisco filed a motion in said c case to withdraw the reservation to file a separate civil action; that thereafter, the private prosecutor
actively participated in the trial and presented evidence on the damages; that on June 29, 1976 the heirs of Arsenio Virata again
reserved their right to institute a separate civil action; that on July 19, 1977 the heirs of Arsenio Virata, petitioners herein,
commenced Civil No. B-134 in the Court of First Instance of Cavite at Bacoor, Branch V, for damages based on quasi-delict against the
driver Maximo Borilla and the registered owner of the jeepney, Victorio Ochoa; that on August 13, 1976 the defendants, private
respondents filed a motion to dismiss on the ground that there is another action, Criminal Case No. 3162-P, pending between the
same parties for the same cause; that on September 8, 1976 the Court of First Instance of Rizal at Pasay City a decision in Criminal
Case No. 3612-P acquitting the accused Maximo Borilla on the ground that he caused an injury by name accident; and that on January
31, 1977, the Court of First Instance of Cavite at Bacoor granted the motion to Civil Case No. B-134 for damages. 2
The principal issue is weather or not the of the Arsenio Virata, can prosecute an action for the damages based on quasi-delict against
Maximo Borilla and Victoria Ochoa, driver and owner, respectively on the passenger jeepney that bumped Arsenio Virata.
It is settled that in negligence cases the aggrieved parties may choose between an action under the Revised Penal Code or of quasidelict under Article 2176 of the Civil Code of the Philippines. What is prohibited by Article 2177 of the Civil Code of the Philippines is
to recover twice for the same negligent act.
The Supreme Court has held that:
According to the Code Commission: 'The foregoing provision (Article 2177) though at first sight startling, is not so
novel or extraordinary when we consider the exact nature of criminal and civil negligence. The former is a violation
of the criminal law, while the latter is a 'culpa aquiliana' or quasi-delict, of ancient origin, having always had its own
foundation and individuality, separate from criminal negligence. Such distinction between criminal negligence and
'culpa extra-contractual' or quasi-delito has been sustained by decision of the Supreme Court of Spain and
maintained as clear, sound and perfectly tenable by Maura, an outstanding Spanish jurist. Therefore, under the
proposed Article 2177, acquittal from an accusation of criminal negligence, whether on reasonable doubt or not,
shall not be a bar to a subsequent civil action, not for civil liability arising from criminal negligence, but for damages
due to a quasi-delict or 'culpa aquiliana'. But said article forestalls a double recovery. (Report of the Code
Commission, p. 162.)

15

TORTS CASES PRELIM 1st Set

Although, again, this Article 2177 does seem to literally refer to only acts of negligence, the same argument of
Justice Bocobo about construction that upholds 'the spirit that given life' rather than that which is literal that killeth
the intent of the lawmaker should be observed in applying the same. And considering that the preliminary chapter
on human relations of the new Civil Code definitely establishes the separability and independence of liability in a
civil action for acts criminal in character (under Articles 29 to 32) from the civil responsibility arising from crime
fixed by Article 100 of the Penal Code, and, in a sense, the Rules of Court, under Sections 2 and 3(c), Rule 111,
contemplate also the same separability, it is 'more congruent' with the spirit of law, equity and justice, and more in
harmony with modern progress', to borrow the felicitous language in Rakes vs. Atlantic Gulf and Pacific Co., 7 Phil.
to 359, to hod as We do hold, that Article 2176, where it refers to 'fault covers not only acts 'not punishable by law'
but also criminal in character, whether intentional and voluntary or consequently, a separate civil action lies against
the in a criminal act, whether or not he is criminally prosecuted and found guilty and acquitted, provided that the
offended party is not allowed, if he is actually charged also criminally, to recover damages on both scores, and
would be entitled in such eventuality only to the bigger award of the, two assuming the awards made in the two
cases vary. In other words the extinction of civil liability refereed to in Par. (c) of Section 13, Rule 111, refers
exclusively to civil liability founded on Article 100 of the Revised Penal Code, whereas the civil liability for the same
act considered as a quasi-delict only and not as a crime is not extinguished even by a declaration in the criminal
case that the criminal act charged has not happened or has not been committed by the accused. Brief stated, We
hold, in reitration of Garcia, that culpa aquilina includes voluntary and negligent acts which may be punishable by
law. 3

The petitioners are not seeking to recover twice for the same negligent act. Before Criminal Case No. 3162-P was decided, they
manifested in said criminal case that they were filing a separate civil action for damages against the owner and driver of the
passenger jeepney based on quasi-delict. The acquittal of the driver, Maximo Borilla, of the crime charged in Criminal Case No. 3162P is not a bar to the prosecution of Civil Case No. B-134 for damages based on quasi-delict The source of the obligation sought to be
enforced in Civil Case No. B-134 is quasi-delict, not an act or omission punishable by law. Under Article 1157 of the Civil Code of the
Philippines, quasi-delict and an act or omission punishable by law are two different sources of obligation.
Moreover, for the petitioners to prevail in the action for damages, Civil Case No. B-134, they have only to establish their cause of
action by preponderance of the evidence.
WHEREFORE, the order of dismissal appealed from is hereby set aside and Civil Case No. B-134 is reinstated and remanded to the
lower court for further proceedings, with costs against the private respondents.
G.R. No. 73998 November 14, 1988
PEDRO
T.
LAYUGAN, petitioner,
vs.
INTERMEDIATE APPELLATE COURT, GODOFREDO ISIDRO, and TRAVELLERS MULTI-INDEMNITY CORPORATION, respondents.
Edralin S. Mateo for petitioner.
Orlando L. Espinas for respondent Travellers Multi-Indemnity Corp.
Roberto T. Vallarta for respondent Godofredo Isidro.

SARMIENTO, J.:
Assailed in this petition for review on certiorari are 1) the decision 1 of the then Intermediate Appellate Court 2 in AC-G.R. CV No.
01055, entitled "Pedro T. Layugan, Plaintiff-Appellee, versus Godofredo Isidro, Defendant-Appellant and Third-Party Plaintiff-Appellee,
versus Travellers Multi-Indemnity Corporation, Third Party Defendant- Appellant, "which reversed and set aside the decision 3 of the
Regional Trial Court, Third Judicial Region, Branch XXVI, Cabanatuan City, and also dismissed the complaint, third party complaint, and
the counter claims of the parties and 2) the resolution 4 denying the plaintiff-appellee's (herein petitioner) motion for reconsideration,
for lack of merit.
The findings of fact by the trial court which were adopted by the appellate court are as follows:

xxx xxx xxx

Pedro T. Layugan filed an action for damages against Godofredo Isidro, alleging that on May 15, 1979 while at
Baretbet, Bagabag, Nueva Vizcaya, the Plaintiff and a companion were repairing the tire of their cargo truck with
Plate No. SU-730 which was parked along the right side of the National Highway; that defendant's truck bearing
Plate No. PW-583, driven recklessly by Daniel Serrano bumped the plaintiff, that as a result, plaintiff was injured and
hospitalized at Dr. Paulino J. Garcia Research and Medical Center and the Our Lady of Lourdes Hospital; that he
spent TEN THOUSAND PESOS (Pl0,000.00) and will incur more expenses as he recuperates from said injuries; that
because of said injuries he would be deprived of a lifetime income in the sum of SEVENTY THOUSAND PESOS
(P70,000.00); and that he agreed to pay his lawyer the sum of TEN THOUSAND PESOS (Pl0,000.00).

16

TORTS CASES PRELIM 1st Set

As prayed for by the plaintiffs counsel, the Court declared the defendant in default on October 12, 1979, and
plaintiff's evidence was received ex-parte on January 11, 1978 and February 19, 1980. The decision on behalf of the
plaintiff was set aside to give a chance to the defendant to file his answer and later on, a third-party complaint.
Defendant admitted his ownership of the vehicle involved in the accident driven by Daniel Serrano. Defendant
countered that the plaintiff was merely a bystander, not a truck helper being a brother-in-law law of the driver of
said truck; that the truck allegedly being repaired was parked, occupying almost half of the right lane towards
Solano, Nueva Vizcaya, right after the curve; that the proximate cause of the incident was the failure of the driver of
the parked truck in installing the early warning device, hence the driver of the parked car should be liable for
damages sustained by the truck of the herein defendant in the amount of more than P20,000.00; that plaintiff being
a mere bystander and hitchhiker must suffer all the damages he incurred. By way of counterclaim defendant
alleged that due to plaintiffs baseless complaint he was constrained to engage the services of counsel for P5,000.00
and P200.00 per court appearance; that he suffered sleepless nights, humiliation, wounded feelings which may be
estimated at P30.000.00.
On May 29, 1981, a third-party complaint was filed by the defendant against his insurer, the Travellers Multi
Indemnity Corporation; that the third-party plaintiff, without admitting his liability to the plaintiff, claimed that the
third-party defendant is liable to the former for contribution, indemnity and subrogation by virtue of their contract
under Insurance Policy No. 11723 which covers the insurer's liability for damages arising from death, bodily injuries
and damage to property.
Third-party defendant answered that, even assuming that the subject matter of the complaint is covered by a valid
and existing insurance policy, its liability shall in no case exceed the limit defined under the terms and conditions
stated therein; that the complaint is premature as no claim has been submitted to the third party defendant as
prescribed under the Insurance Code; that the accident in question was approximately caused by the carelessness
and gross negligence of the plaintiff-, that by reason of the third-party complaint, third-party defendant was
constrained to engage the services of counsel for a fee of P3,000.00.
Pedro Layugan declared that he is a married man with one (1) child. He was employed as security guard in
Mandaluyong, Metro Manila, with a salary of SIX HUNDRED PESOS (600.00) a month. When he is off-duty, he worked
as a truck helper and while working as such, he sustained injuries as a result of the bumping of the cargo truck they
were repairing at Baretbet, Bagabag, Nueva Vizcaya by the driver of the defendant. He used to earn TWO HUNDRED
PESOS (P200.00) to THREE HUNDRED PESOS (P300.00) monthly, at the rate of ONE HUNDRED PESOS (Pl00.00) per
trip. Due to said injuries, his left leg was amputated so he had to use crutches to walk. Prior to the incident, he
supported his family sufficiently, but after getting injured, his family is now being supported by his parents and
brother.
GODOFREDO ISIDRO, defendant/third-party plaintiff, testified that his truck involved in this vehicular accident is
insured with the Travellers Multi Indemnity Corporation covering own damage and third-party liability, under vehicle
policy No. 11723 (Exh. "1") dated May 30, 1978; that after he filed the insurance claim the insurance company paid
him the sum of P18,000.00 for the damages sustained by this truck but not the third party liability.
DANIEL SERRANO, defendant driver, declared that he gave a statement before the municipal police of Bagabag,
Nueva Vizcaya on May 16, 1979; that he knew the responsibilities of a driver; that before leaving, he checked the
truck. The truck owner used to instruct him to be careful in driving. He bumped the truck being repaired by Pedro
Layugan, plaintiff, while the same was at a stop position. From the evidence presented, it has been established
clearly that the injuries sustained by the plaintiff was caused by defendant's driver, Daniel Serrano. The police
report confirmed the allegation of the plaintiff and admitted by Daniel Serrano on cross-examination. The collision
dislodged the jack from the parked truck and pinned the plaintiff to the ground. As a result thereof, plaintiff
sustained injuries on his left forearm and left foot. The left leg of the plaintiff from below the knee was later on
amputated (Exh. "C") when gangrene had set in, thereby rendering him incapacitated for work depriving him of his
income. (pp. 118 to 120, Record on Appeal.)
xxx xxx xxx

Upon such findings, amply supported by the evidence on record, the trial court rendered its decision, the dispositive part of which
reads as follows: 6
WHEREFORE, premises considered, the defendant is hereby ordered:
a) To pay the plaintiff SEVENTY THOUSAND (P70,000.00) PESOS actual and compensatory damages;
b) TWO THOUSAND (P2,000.00) PESOS for attorney's fees;
c) FIVE THOUSAND (P5,000.00) PESOS for moral damages; and
d) To pay the costs of this suit. On the third-party complaint, the third-party defendant is ordered to indemnify the
defendant/third party plaintiff-.

17

TORTS CASES PRELIM 1st Set

a) The sum of FIFTY THOUSAND (P50,000.00) PESOS for actual and compensatory damages; and
b) The costs of this suit.

The Intermediate Appellate Court as earlier stated reversed the decision of the trial court and dismissed the complaint, the third-party
complaint, and the counter- claims of both appellants. 7
Hence, this petition.
The petitioner alleges the following errors.

1. WHETHER UPON THE GIVEN FACTS, THE INTERMEDIATE APPELLATE COURT ACTED CORRECTLY IN REVERSING AND
SETTING ASIDE AND DISMISSING THE PLAINTIFF-APPELLEE'S COMPLAINT.
2. WHETHER THE INTERMEDIATE APPELLATE COURT ACTED CORRECTLY IN APPLYING THE DOCTRINE OF "RES IPSA
LOQUITUR" WITH PROPER JURIS- PRUDENTIAL (sic) BASIS.
The crux of the controversy lies in the correctness or error of the decision of the respondent court finding the petitioner negligent
under the doctrine of Res ipsa loquitur (The thing speaks for itself).<re||an1w> Corollary thereto, is the question as to who is
negligent, if the doctrine is inapplicable.
The respondent corporation stresses that the issues raised in the petition being factual, the same is not reviewable by this Court in a
petition for review by certiorari. 9
Indeed, it is an elementary rule in the review of decisions of the Court of Appeals that its findings of fact are entitled to great respect
and will not ordinarily be disturbed by this Court. 10 For if we have to review every question of fact elevated to us, we would hardly
have any more time left for the weightier issues compelling and deserving our preferential attention. 11 Be that as it may, this rule is
not inflexible. Surely there are established exceptions 12 when the Court should review and rectify the findings of fact of the lower
court, such as:
1) when the conclusion is a finding grounded entirely on speculation, surmise, or conjecture; 2) the inference made is manifestly
mistaken; 3) there is grave abuse of discretion; 4) the judgment is based on misapprehension of facts; 5) the Court of Appeals went
beyond the issues of the case if the findings are contrary to the admission of both the appellant and the appellee; 6) the findings of
the Court of Appeals are contrary to those of the trial court; 7) the said findings of fact are conclusions without citation of specific
evidence on which they are based; 8) the facts set forth in the petition as well as in the petitioner's main and reply briefs are not
disputed by the respondents; and 9) when the findings of fact of the Court of Appeals are premised on the absence of evidence and
are contradicted on record.
Exceptions 1, 2, 4, 6, 7, and 9 obtain in the instant case to warrant a deviation from the general rule.
From its finding that the parked truck was loaded with ten (10) big round logs 13 the Court of Appeals inferred that because of its
weight the truck could not have been driven to the shoulder of the road and concluded that the same was parked on a portion of the
road 14 at the time of the accident. Consequently, the respondent court inferred that the mishap was due to the negligence of the
driver of the parked truck. 15 The inference or conclusion is manifestly erroneous. In a large measure, it is grounded on speculation,
surmise, or conjecture. How the respondent court could have reversed the finding of the trial court that a warning device was
installed 16 escapes us because it is evident from the record that really such a device, in the form of a lighted kerosene lamp, was
installed by the driver of the parked truck three to four meters from the rear of his parked truck. 17 We see this negative finding of the
respondent appellate court as a misreading of the facts and the evidence on record and directly contravening the positive finding of
the trial court that an early warning device was in proper place when the accident happened and that the driver of the private
respondent was the one negligent. On the other hand, the respondent court, in refusing to give its "imprimatur to the trial court's
finding and conclusion that Daniel Serrano (private respondent Isidro's driver) was negligent in driving the truck that bumped the
parked truck", did not cite specific evidence to support its conclusion. In cavalier fashion, it simply and nebulously adverted to
unspecified "scanty evidence on record." 18
On the technical aspect of the case, the respondent corporation would want us to dismiss this petition on the ground that it was filed
out of time. It must be noted that there was a motion for extension, 19 albeit filed erroneously with the respondent court, dated March
19, 1986, requesting for 30 days from March 20, 1986, to file the necessary petition or pleading before the Supreme Court". Also, on
April 1, 1986, an appearance of a new lawyer for the petitioner before the Supreme Court" with motion 20 was filed, again
erroneously, with the Court of Appeals, requesting for 20 days extension "to file the Petition for Review on Certiorari." Likewise a
similar motion 21 was filed with this Court also on April 1, 1986. On the other hand, the instant petition for review was filed on April 17,
1986 22 but it was only after three months, on August 1, 1986, in its comment 23 that the respondent corporation raised the issue of
tardiness. The respondent corporation should not have waited in ambush before the comment was required and before due course
was given. In any event, to exact its "a pound of flesh", so to speak, at this very late stage, would cause a grave miscarriage of
justice. Parenthetically, it must be noted that private respondent Isidro did not raise this issue of late filing.
We now come to the merits of this petition.

18

TORTS CASES PRELIM 1st Set

The question before us is who was negligent? 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 24 or as Judge Cooley defines it, "(T)he failure to observe for the protection of the interests of another
person, that degree of care, precaution, and vigilance which the circumstances justly demand, whereby such other person suffers
injury. 25
In Picart vs. Smith,

26

decided more than seventy years ago but still a sound rule, we held:

The test by which to determine the existence of negligence in a particular case may be stated as follows: Did the defendant in doing
the alleged negligent act use that reasonable care and caution which an ordinarily prudent person would have used in the same
situation? If not, then he is guilty of negligence. The law here in effect adopts the standard supposed to be supplied by the imaginary
conduct of the discreet paterfamilias of the Roman law. The existence of negligence in a given case is not determined by reference to
the personal judgment of the actor in the situation before him. The Law considers what would be reckless, blameworthy, or negligent
in the man of ordinary intelligence and prudence and determines liability by that.
Respondent Isidro posits that any immobile object along the highway, like a parked truck, poses serious danger to a moving vehicle
which has the right to be on the highway. He argues that since the parked cargo truck in this case was a threat to life and limb and
property, it was incumbent upon the driver as well as the petitioner, who claims to be a helper of the truck driver, to exercise extreme
care so that the motorist negotiating the road would be properly forewarned of the peril of a parked vehicle. Isidro submits that the
burden of proving that care and diligence were observed is shifted to the petitioner, for, as previously claimed, his (Isidro's) Isuzu
truck had a right to be on the road, while the immobile cargo truck had no business, so to speak, to be there. Likewise, Isidro proffers
that the petitioner must show to the satisfaction of a reasonable mind that the driver and he (petitioner) himself, provided an early
warning device, like that required by law, or, by some other adequate means that would properly forewarn vehicles of the impending
danger that the parked vehicle posed considering the time, place, and other peculiar circumstances of the occasion. Absent such
proof of care, as in the case at bar, Isidro concludes, would, under the doctrine of Res ipsa loquitur, evoke the presumption of
negligence on the part of the driver of the parked cargo truck as well as his helper, the petitioner herein, who was fixing the flat tire
of the said truck. 27
Respondent Isidro's contention is untenable.
The evidence on record discloses that three or four meters from the rear of the parked truck, a lighted kerosene lamp was
placed. 28 Moreover, there is the admission of respondent Isidro's driver, Daniel Serrano, to Wit: 29
Question No. 8 (by Patrolman Josefino Velasco)Will you narrate to me in brief how the accident happens (sic) if
you can still remember?
Answer: (by Daniel Serrano)
That on or about 10:40 p.m., 15 May 1979 while driving Isuzu truck at Baretbet, Bagabag, Nueva
Vizcaya and at KM 285, I met another vehicle who (sic) did not dim his (sic) lights which
cause (sic) me to be blinded with intense glare of the light that's why I did not notice a parked
truck who (sic) was repairing a front flat tire. When I was a few meters away, I saw the truck
which was loaded with round logs. I step (sic) on my foot brakes but it did not function with my
many attempts. I have (sic) found out later that the fluid pipe on the rear right was cut that's why
the breaks did not function. (Emphasis supplied).
Whether the cargo truck was parked along the road or on half the shoulder of the right side of the road would be of no moment taking
into account the warning device consisting of the lighted kerosene lamp placed three or four meters from the back of the truck. 30 But
despite this warning which we rule as sufficient, the Isuzu truck driven by Daniel Serrano, an employee of the private respondent, still
bumped the rear of the parked cargo truck. As a direct consequence of such accident the petitioner sustained injuries on his left
forearm and left foot. His left leg was later amputated from below the knee when gangrene had set in. 31
It is clear from the foregoing disquisition that the absence or want of care of Daniel Serrano has been established by clear and
convincing evidence. It follows that in stamping its imprimatur upon the invocation by respondent Isidro of the doctrine of Res ipsa
loquitur to escape liability for the negligence of his employee, the respondent court committed reversible error.
The respondent court ruled:

32

xxx xxx xxx

In addition to this, we agree with the following arguments of appellant Godofredo Isidro which would show that the
accident was caused due to the negligence of the driver of the cargo truck:
xxx xxx xxx
... In the case at bar the burden of proving that care and diligence was (sic) observed is shifted
evidently to the plaintiff, for, as adverted to, the motorists have the right to be on the road, while

19

TORTS CASES PRELIM 1st Set

the immobile truck has no business, so to speak, to be there. It is thus for the plaintiff to show to
the satisfaction of a reasonable mind that the driver and he himself did employ early warning
device such as that required by law or by some other adequate means or device that would
properly forewarn vehicles of the impending danger that the parked vehicle posed considering
the time, place and other peculiar circumstances of the occasion. Absent such proof of care, as in
the case at bar, will evoke the presumption of negligence under the doctrine of res ipsa loquitur,
on the part of the driver of the parked cargo truck as well as plaintiff who was fixing the flat tire of
said truck. (pp. 14-17, Appellant's Brief). (Emphasis supplied).

At this juncture, it may be enlightening and helpful in the proper resolution of the issue of negligence to examine the doctrine of Res
ipsa loquitur.
This doctrine is stated thus: "Where the thing which causes injury is shown to be under the management of the defendant, and the
accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords
reasonable evidence, in the absence of an explanation by the defendant, that the accident arose from want of care. 33 Or as Black's
Law Dictionary 34 puts it:
Res ipsa loquitur. The thing speaks for itself Rebuttable presumption or inference that defendant was negligent,
which arises upon proof that instrumentality causing injury was in defendant's exclusive control, and that the
accident was one which ordinarily does not happen in absence of negligence. Res ipsa loquitur is rule of evidence
whereby negligence of alleged wrongdoer may be inferred from mere fact that accident happened provided
character of accident and circumstances attending it lead reasonably to belief that in absence of negligence it
would not have occurred and that thing which caused injury is shown to have been under management and control
of alleged wrongdoer. Hillen v. Hooker Const. Co., Tex. Civ. App., 484 S.W. 2d 133, 155. Under doctrine of "res ipsa
loquitur" the happening of an injury permits an inference of negligence where plaintiff produces substantial
evidence that injury was caused by an agency or instrumentality under exclusive control and management of
defendant, and that the occurrence was such that in the ordinary course of things would not happen if reasonable
care had been used.
In this jurisdiction we have applied this doctrine in quite a number of cases, notably in Africa et al. vs. Caltex, Inc., et al.,
latest is in the case of F.F. Cruz and Co., Inc. vs. CA. 36

35

and the

The doctrine of Res ipsa loquitur as a rule of evidence is peculiar to the law of negligence which recognizes that
prima facie negligence may be established without direct proof and furnishes a substitute for specific proof of negligence. 37 The
doctrine is not a rule of substantive law 38 but merely a mode of proof or a mere procedural convenience. 39 The rule, when applicable
to the facts and circumstances of a particular case, is not intended to and does not dispense with the requirement of proof of culpable
negligence on the part of the party charged. 40 It merely determines and regulates what shall be prima facie evidence thereof and
facilitates the burden of plaintiff of proving a breach of the duty of due care. 41 The doctrine can be invoked when and only when,
under the circumstances involved, direct evidence is absent and not readily available. 42 Hence, it has generally been held that the
presumption of inference arising from the doctrine cannot be availed of, or is overcome, where plaintiff has knowledge and testifies or
presents evidence as to the specific act of negligence which is the cause of the injury complained of or where there is direct evidence
as to the precise cause of the accident and all the facts and circumstances attendant on the occurrence clearly appear. 43 Finally,
once the actual cause of injury is established beyond controversy, whether by the plaintiff or by the defendant, no presumptions will
be involved and the doctrine becomes inapplicable when the circumstances have been so completely eludicated that no inference of
defendant's liability can reasonably be made, whatever the source of the evidence, 44 as in this case.
The private respondent is sued under Art. 2176 in relation to Art. 2180, paragraph 5, of the Civil Code. In the latter, when an injury is
caused by the negligence of a servant or employee there instantly arises a presumption of law that there was negligence on the part
of the master or employer either in the selection of the servant or employee, or in supervision over him after selection, or both. Such
presumption is juris tantum and not juris et de jure and consequently, may be rebutted. If follows necessarily that if the employer
shows to the satisfaction of the court that in the selection and in the supervision he has exercised the care and diligence of a good
father of a family, the presumption is overcome and he is relieved from liability. 45 In disclaiming liability for the incident, the private
respondent stresses that the negligence of his employee has already been adequately overcome by his driver's statement that he
knew his responsibilities as a driver and that the truck owner used to instruct him to be careful in driving. 46
We do not agree with the private respondent in his submission. In the first place, it is clear that the driver did not know his
responsibilities because he apparently did not check his vehicle before he took it on the road. If he did he could have discovered
earlier that the brake fluid pipe on the right was cut, and could have repaired it and thus the accident could have been avoided.
Moveover, to our mind, the fact that the private respondent used to intruct his driver to be careful in his driving, that the driver was
licensed, and the fact that he had no record of any accident, as found by the respondent court, are not sufficient to destroy the
finding of negligence of the Regional Trial Court given the facts established at the trial 47 The private respondent or his mechanic, who
must be competent, should have conducted a thorough inspection of his vehicle before allowing his driver to drive it. In the light of
the circumstances obtaining in the case, we hold that Isidro failed to prove that the diligence of a good father of a family in the
supervision of his employees which would exculpate him from solidary liability with his driver to the petitioner. But even if we concede
that the diligence of a good father of a family was observed by Isidro in the supervision of his driver, there is not an iota of evidence
on record of the observance by Isidro of the same quantum of diligence in the supervision of his mechanic, if any, who would be
directly in charge in maintaining the road worthiness of his (Isidro's) truck. But that is not all. There is paucity of proof that Isidro
exercised the diligence of a good father of a family in the selection of his driver, Daniel Serrano, as well as in the selection of his
mechanic, if any, in order to insure the safe operation of his truck and thus prevent damage to others. Accordingly, the responsibility
of Isidro as employer treated in Article 2180, paragraph 5, of the Civil Code has not ceased.

20

TORTS CASES PRELIM 1st Set

WHEREFORE, the petition is hereby GRANTED. The Decision of the respondent court as well as its Resolution denying the petitioner's
motion for reconsideration are hereby SET ASIDE and the decision of the trial court, dated January 20, 1983, is hereby REINSTATED in
toto. With costs against the private respondents.
G.R. No. L-12219

March 15, 1918

AMADO
vs.
FRANK SMITH, JR., defendant-appellee.
Alejo
G. E. Campbell for appellee.

Mabanag

PICART, plaintiff-appellant,

for

appellant.

STREET, J.:
In this action the plaintiff, Amado Picart, seeks to recover of the defendant, Frank Smith, jr., the sum of P31,000, as damages alleged
to have been caused by an automobile driven by the defendant. From a judgment of the Court of First Instance of the Province of La
Union absolving the defendant from liability the plaintiff has appealed.
The occurrence which gave rise to the institution of this action took place on December 12, 1912, on the Carlatan Bridge, at San
Fernando, La Union. It appears that upon the occasion in question the plaintiff was riding on his pony over said bridge. Before he had
gotten half way across, the defendant approached from the opposite direction in an automobile, going at the rate of about ten or
twelve miles per hour. As the defendant neared the bridge he saw a horseman on it and blew his horn to give warning of his
approach. He continued his course and after he had taken the bridge he gave two more successive blasts, as it appeared to him that
the man on horseback before him was not observing the rule of the road.
The plaintiff, it appears, saw the automobile coming and heard the warning signals. However, being perturbed by the novelty of the
apparition or the rapidity of the approach, he pulled the pony closely up against the railing on the right side of the bridge instead of
going to the left. He says that the reason he did this was that he thought he did not have sufficient time to get over to the other side.
The bridge is shown to have a length of about 75 meters and a width of 4.80 meters. As the automobile approached, the defendant
guided it toward his left, that being the proper side of the road for the machine. In so doing the defendant assumed that the
horseman would move to the other side. The pony had not as yet exhibited fright, and the rider had made no sign for the automobile
to stop. Seeing that the pony was apparently quiet, the defendant, instead of veering to the right while yet some distance away or
slowing down, continued to approach directly toward the horse without diminution of speed. When he had gotten quite near, there
being then no possibility of the horse getting across to the other side, the defendant quickly turned his car sufficiently to the right to
escape hitting the horse alongside of the railing where it as then standing; but in so doing the automobile passed in such close
proximity to the animal that it became frightened and turned its body across the bridge with its head toward the railing. In so doing, it
as struck on the hock of the left hind leg by the flange of the car and the limb was broken. The horse fell and its rider was thrown off
with some violence. From the evidence adduced in the case we believe that when the accident occurred the free space where the
pony stood between the automobile and the railing of the bridge was probably less than one and one half meters. As a result of its
injuries the horse died. The plaintiff received contusions which caused temporary unconsciousness and required medical attention for
several days.
The question presented for decision is whether or not the defendant in maneuvering his car in the manner above described was guilty
of negligence such as gives rise to a civil obligation to repair the damage done; and we are of the opinion that he is so liable. As the
defendant started across the bridge, he had the right to assume that the horse and the rider would pass over to the proper side; but
as he moved toward the center of the bridge it was demonstrated to his eyes that this would not be done; and he must in a moment
have perceived that it was too late for the horse to cross with safety in front of the moving vehicle. In the nature of things this change
of situation occurred while the automobile was yet some distance away; and from this moment it was not longer within the power of
the plaintiff to escape being run down by going to a place of greater safety. The control of the situation had then passed entirely to
the defendant; and it was his duty either to bring his car to an immediate stop or, seeing that there were no other persons on the
bridge, to take the other side and pass sufficiently far away from the horse to avoid the danger of collision. Instead of doing this, the
defendant ran straight on until he was almost upon the horse. He was, we think, deceived into doing this by the fact that the horse
had not yet exhibited fright. But in view of the known nature of horses, there was an appreciable risk that, if the animal in question
was unacquainted with automobiles, he might get exited and jump under the conditions which here confronted him. When the
defendant exposed the horse and rider to this danger he was, in our opinion, negligent in the eye of the law.
The test by which to determine the existence of negligence in a particular case may be stated as follows: Did the defendant in doing
the alleged negligent act use that person would have used in the same situation? If not, then he is guilty of negligence. The law here
in effect adopts the standard supposed to be supplied by the imaginary conduct of the discreet paterfamilias of the Roman law. The
existence of negligence in a given case is not determined by reference to the personal judgment of the actor in the situation before
him. The law considers what would be reckless, blameworthy, or negligent in the man of ordinary intelligence and prudence and
determines liability by that.
The question as to what would constitute the conduct of a prudent man in a given situation must of course be always determined in
the light of human experience and in view of the facts involved in the particular case. Abstract speculations cannot here be of much
value but this much can be profitably said: Reasonable men govern their conduct by the circumstances which are before them or
known to them. They are not, and are not supposed to be, omniscient of the future. Hence they can be expected to take care only
when there is something before them to suggest or warn of danger. Could a prudent man, in the case under consideration, foresee
harm as a result of the course actually pursued? If so, it was the duty of the actor to take precautions to guard against that harm.

21

TORTS CASES PRELIM 1st Set

Reasonable foresight of harm, followed by ignoring of the suggestion born of this prevision, is always necessary before negligence can
be held to exist. Stated in these terms, the proper criterion for determining the existence of negligence in a given case is this:
Conduct is said to be negligent when a prudent man in the position of the tortfeasor would have foreseen that an effect harmful to
another was sufficiently probable to warrant his foregoing conduct or guarding against its consequences.
Applying this test to the conduct of the defendant in the present case we think that negligence is clearly established. A prudent man,
placed in the position of the defendant, would in our opinion, have recognized that the course which he was pursuing was fraught
with risk, and would therefore have foreseen harm to the horse and the rider as reasonable consequence of that course. Under these
circumstances the law imposed on the defendant the duty to guard against the threatened harm.
It goes without saying that the plaintiff himself was not free from fault, for he was guilty of antecedent negligence in planting himself
on the wrong side of the road. But as we have already stated, the defendant was also negligent; and in such case the problem always
is to discover which agent is immediately and directly responsible. It will be noted that the negligent acts of the two parties were not
contemporaneous, since the negligence of the defendant succeeded the negligence of the plaintiff by an appreciable interval. Under
these circumstances the law is that the person who has the last fair chance to avoid the impending harm and fails to do so is
chargeable with the consequences, without reference to the prior negligence of the other party.
The decision in the case of Rkes vs. Atlantic, Gulf and Pacific Co. (7 Phil. Rep., 359) should perhaps be mentioned in this connection.
This Court there held that while contributory negligence on the part of the person injured did not constitute a bar to recovery, it could
be received in evidence to reduce the damages which would otherwise have been assessed wholly against the other party. The
defendant company had there employed the plaintiff, as a laborer, to assist in transporting iron rails from a barge in Manila harbor to
the company's yards located not far away. The rails were conveyed upon cars which were hauled along a narrow track. At certain spot
near the water's edge the track gave way by reason of the combined effect of the weight of the car and the insecurity of the road
bed. The car was in consequence upset; the rails slid off; and the plaintiff's leg was caught and broken. It appeared in evidence that
the accident was due to the effects of the typhoon which had dislodged one of the supports of the track. The court found that the
defendant company was negligent in having failed to repair the bed of the track and also that the plaintiff was, at the moment of the
accident, guilty of contributory negligence in walking at the side of the car instead of being in front or behind. It was held that while
the defendant was liable to the plaintiff by reason of its negligence in having failed to keep the track in proper repair nevertheless the
amount of the damages should be reduced on account of the contributory negligence in the plaintiff. As will be seen the defendant's
negligence in that case consisted in an omission only. The liability of the company arose from its responsibility for the dangerous
condition of its track. In a case like the one now before us, where the defendant was actually present and operating the automobile
which caused the damage, we do not feel constrained to attempt to weigh the negligence of the respective parties in order to
apportion the damage according to the degree of their relative fault. It is enough to say that the negligence of the defendant was in
this case the immediate and determining cause of the accident and that the antecedent negligence of the plaintiff was a more remote
factor in the case.
A point of minor importance in the case is indicated in the special defense pleaded in the defendant's answer, to the effect that the
subject matter of the action had been previously adjudicated in the court of a justice of the peace. In this connection it appears that
soon after the accident in question occurred, the plaintiff caused criminal proceedings to be instituted before a justice of the peace
charging the defendant with the infliction of serious injuries (lesiones graves). At the preliminary investigation the defendant was
discharged by the magistrate and the proceedings were dismissed. Conceding that the acquittal of the defendant at the trial upon the
merits in a criminal prosecution for the offense mentioned would be res adjudicata upon the question of his civil liability arising from
negligence -- a point upon which it is unnecessary to express an opinion -- the action of the justice of the peace in dismissing the
criminal proceeding upon the preliminary hearing can have no effect. (See U. S. vs. Banzuela and Banzuela, 31 Phil. Rep., 564.)
From what has been said it results that the judgment of the lower court must be reversed, and judgment is her rendered that the
plaintiff recover of the defendant the sum of two hundred pesos (P200), with costs of other instances. The sum here awarded is
estimated to include the value of the horse, medical expenses of the plaintiff, the loss or damage occasioned to articles of his
apparel, and lawful interest on the whole to the date of this recovery. The other damages claimed by the plaintiff are remote or
otherwise of such character as not to be recoverable. So ordered.
P H I L I P P I N E H AW K
C O R P O R AT I O N ,
Petitioner,

-versus-

G.R. No. 166869

Present:
CORONA, J., Chairperson,
VELASCO, JR.,
NACHURA,
PERALTA, and
MENDOZA, JJ.
Promulgated:
February 16, 2010

VIVIAN TAN LEE,

Respondent.
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x

DECISION

22

TORTS CASES PRELIM 1st Set

PERALTA, J.:

This is a Petition for Review on Certiorari[1] of the Decision of the Court of Appeals in CA-G.R. CV No. 70860, promulgated on
August 17, 2004, affirming with modification the Decision of the Regional Trial Court (RTC) of Quezon City, Branch 102, dated March
16, 2001, in Civil Case No. Q-91-9191, ordering petitioner Philippine Hawk Corporation and Margarito Avila to jointly and severally pay
respondent Vivian Tan Lee damages as a result of a vehicular accident.
The facts are as follows:
On March 15, 2005, respondent Vivian Tan Lee filed before the RTC of Quezon City a Complaint [2] against petitioner Philippine
Hawk Corporation and defendant Margarito Avila for damages based on quasi-delict, arising from a vehicular accident that occurred
on March 17, 1991 in Barangay Buensoceso, Gumaca, Quezon. The accident resulted in the death of respondents husband, Silvino
Tan, and caused respondent physical injuries.

On June 18, 1992, respondent filed an Amended Complaint, [3] in her own behalf and in behalf of her children, in the civil case
for damages against petitioner. Respondent sought the payment of indemnity for the death of Silvino Tan, moral and exemplary
damages, funeral and interment expenses, medical and hospitalization expenses, the cost of the motorcycles repair, attorneys fees,
and other just and equitable reliefs.

The accident involved a motorcycle, a passenger jeep, and a bus with Body No. 119. The bus was owned by petitioner
Philippine Hawk Corporation, and was then being driven by Margarito Avila.

In its Answer,[4] petitioner denied liability for the vehicular accident, alleging that the immediate and proximate cause of the
accident was the recklessness or lack of caution of Silvino Tan. Petitioner asserted that it exercised the diligence of a good father of
the family in the selection and supervision of its employees, including Margarito Avila.

On March 25, 1993, the trial court issued a Pre-trial Order [5] stating that the parties manifested that there was no possibility
of amicable settlement between them. However, they agreed to stipulate on the following facts:
1.
2.
3.
4.

On March 17, 1991, in Bgy. Buensoceso, Gumaca, Quezon, plaintiff Vivian Lee Tan and her husband Silvino
Tan, while on board a motorcycle with [P]late No. DA-5480 driven by the latter, and a Metro Bus with [P]late No.
NXR-262 driven by Margarito Avila, were involved in an accident;
As a result of the accident, Silvino Tan died on the spot while plaintiff Vivian Lee Tan suffered physical injuries
which necessitated medical attention and hospitalization;
The deceased Silvino Tan is survived by his wife, plaintiff Vivian Lee Tan and four children, three of whom are
now residents of the United States; and
Defendant Margarito Avila is an employee of defendant Philippine Hawk. [6]

The parties also agreed on the following issues:

1.
2.

Whether or not the proximate cause of the accident causing physical injuries upon the plaintiff Vivian Lee Tan
and resulting in the death of the latters husband was the recklessness and negligence of Margarito Avila or the
deceased Silvino Tan; and
Whether or not defendant Philippine Hawk Transport Corporation exercised the diligence of a good father of
the family in the selection and supervision of its driver Margarito Avila.[7]

23

TORTS CASES PRELIM 1st Set

Respondent testified that on March 17, 1991, she was riding on their motorcycle in tandem with her husband, who was on

the wheel, at a place after a Caltex gasoline station in Barangay Buensoceso, Gumaca, Quezon on the way to Lopez, Quezon. They
came from the Pasumbal Machine Shop, where they inquired about the repair of their tanker. They were on a stop position at the side
of the highway; and when they were about to make a turn, she saw a bus running at fast speed coming toward them, and then the
bus hit a jeep parked on the roadside, and their motorcycle as well. She lost consciousness and was brought to the hospital in
Gumaca, Quezon, where she was confined for a week. She was later transferred to St. Lukes Hospital in Quezon City, Manila. She
suffered a fracture on her left chest, her left arm became swollen, she felt pain in her bones, and had high blood pressure. [8]
Respondents husband died due to the vehicular accident. The immediate cause of his death was massive cerebral
hemorrhage.[9]
Respondent further testified that her husband was leasing [10] and operating a Caltex gasoline station in Gumaca, Quezon that
yielded one million pesos a year in revenue. They also had a copra business, which gave them an income of P3,000.00 a month
or P36,000.00 a year.[11]

Ernest Ovial, the driver of the passenger jeep involved in the accident, testified that in the afternoon of March 17, 1991, his
jeep was parked on the left side of the highway near the Pasumbal Machine Shop. He did not notice the motorcycle before the
accident. But he saw the bus dragging the motorcycle along the highway, and then the bus bumped his jeep and sped away. [12]

For the defense, Margarito Avila, the driver of petitioners bus, testified that on March 17, 1999, at about 4:30 p.m., he was
driving his bus at 60 kilometers per hour on the Maharlika Highway. When they were at Barangay Buensoceso, Gumaca, Quezon, a
motorcycle ran from his left side of the highway, and as the bus came near, the motorcycle crossed the path of the bus, and so he
turned the bus to the right. He heard a loud banging sound. From his side mirror, he saw that the motorcycle turned turtle
(bumaliktad). He did not stop to help out of fear for his life, but drove on and surrendered to the police. He denied that he bumped
the motorcycle.[13]

Avila further testified that he had previously been involved in sideswiping incidents, but he forgot how many times. [14]

Rodolfo Ilagan, the bus conductor, testified that the motorcycle bumped the left side of the bus that was running at 40
kilometers per hour.[15]

Domingo S. Sisperes, operations officer of petitioner, testified that, like their other drivers, Avila was subjected to and
passedthe following requirements:
(1)
(2)
(3)
(4)
(5)

Submission of NBI clearance;

Certification from his previous employer that he had no bad record;
Physical examination to determine his fitness to drive;
Test of his driving ability, particularly his defensive skill; and
Review of his driving skill every six months. [16]

Efren Delantar, a Barangay Kagawad in Buensoceso, Gumaca, Quezon, testified that the bus was running on the highway on
a straight path when a motorcycle, with a woman behind its driver, suddenly emerged from the left side of the road from a machine
shop. The motorcycle crossed the highway in a zigzag manner and bumped the side of the bus. [17]

24

TORTS CASES PRELIM 1st Set

In its Decision dated March 16, 2001, the trial court rendered judgment against petitioner and defendant Margarito Avila, the
dispositive portion of which reads:
ACCORDINGLY, MARGARITO AVILA is adjudged guilty of simple negligence, and judgment is hereby
rendered in favor of the plaintiff Vivian Lee Tan and h[er] husbands heirs ordering the defendants Philippine Hawk
Corporation and Margarito Avila to pay them jointly and solidarily the sum of P745,575.00 representing loss of
earnings and actual damages plus P50,000.00 as moral damages.[18]

The trial court found that before the collision, the motorcycle was on the left side of the road, just as the passenger jeep
was.Prior to the accident, the motorcycle was in a running position moving toward the right side of the highway. The trial court agreed
with the bus driver that the motorcycle was moving ahead of the bus from the left side of the road toward the right side of the road,
but disagreed that the motorcycle crossed the path of the bus while the bus was running on the right side of the road. [19]

The trial court held that if the bus were on the right side of the highway, and Margarito Avila turned his bus to the right in an
attempt to avoid hitting the motorcyle, then the bus would not have hit the passenger jeep, which was then parked on the left side of
the road. The fact that the bus also hit the passenger jeep showed that the bus must have been running from the right lane to the left
lane of the highway, which caused the collision with the motorcycle and the passenger jeep parked on the left side of the road. The
trial court stated that since Avila saw the motorcycle before the collision, he should have stepped on the brakes and slowed down,but
he just maintained his speed and veered to the left.[20] The trial court found Margarito Avila guilty of simple negligence.

The trial court held petitioner bus company liable for failing to exercise the diligence of a good father of the family in the
selection and supervision of Avila, having failed to sufficiently inculcate in him discipline and correct behavior on the road. [21]

On appeal, the Court of Appeals affirmed the decision of the trial court with modification in the award of damages. The
dispositive portion of the decision reads:
WHEREFORE, foregoing premises considered, the appeal is DENIED. The assailed decision dated March 16,
2001 is hereby AFFIRMED with MODIFICATION. Appellants Philippine Hawk and Avila are hereby ordered to pay
jointly and severally appellee the following amount: (a) P168,019.55 as actual damages; (b) P10,000.00 as
temperate damages; (c) P100,000.00 as moral damages; (d) P590,000.00 as unearned income; and (e) P50,000.00
as civil indemnity.[22]
Petitioner filed this petition, raising the following issues:
1)

The Court of Appeals committed grave abuse of discretion amounting to lack of jurisdiction in passing upon an issue,
which had not been raised on appeal, and which had, therefore, attained finality, in total disregard of the doctrine laid
down by this Court in Abubakar v. Abubakar, G.R. No. 134622, October 22, 1999.

2)

The Court of Appeals committed reversible error in its finding that the petitioners bus driver saw the motorcycle of
private respondent executing a U-turn on the highway about fifteen (15) meters away and thereafter held that the
Doctrine of Last Clear was applicable to the instant case. This was a palpable error for the simple reason that the
aforesaid distance was the distance of the witness to the bus and not the distance of the bus to the respondents
motorcycle, as clearly borne out by the records.

3)

The Court of Appeals committed reversible error in awarding damages in total disregard of the established doctrine laid
down in Danao v. Court of Appeals, 154 SCRA 447 and Viron Transportation Co., Inc. v. Delos Santos, G.R. No. 138296,
November 22, 2000.[23]

25

TORTS CASES PRELIM 1st Set

In short, the issues raised by petitioner are: (1) whether or not negligence may be attributed to petitioners driver, and

whethernegligence on his part was the proximate cause of the accident, resulting in the death of Silvino Tan and causing physical
injuries to respondent; (2) whether or not petitioner is liable to respondent for damages; and (3) whether or not the damages
awarded by respondent Court of Appeals are proper.

Petitioner seeks a review of the factual findings of the trial court, which were sustained by the Court of Appeals, that
petitioners driver was negligent in driving the bus, which caused physical injuries to respondent and the death of respondents
husband.
The rule is settled that the findings of the trial court, especially when affirmed by the Court of Appeals, are conclusive on this
Court when supported by the evidence on record. [24] The Court has carefully reviewed the records of this case, and found no cogent
reason to disturb the findings of the trial court, thus:
The Court agree[s] with the bus driver Margarito that the motorcycle was moving ahead of the bus
towards the right side from theleft side of the road, but disagrees with him that it crossed the path of the bus while
the bus was running on the right side of the highway.
If the bus were on the right side of the highway and Margarito turned his bus to the right in an attempt to
avoid hitting it, then the bus would not have hit the passenger jeep vehicle which was then parked on the left side
of the road. The fact that the bus hit the jeep too, shows that the bus must have been running to the left lane of the
highway from right to the left, that the collision between it and the parked jeep and the moving rightways cycle
became inevitable. Besides, Margarito said he saw the motorcycle before the collision ahead of the bus; that being
so, an extra-cautious public utility driver should have stepped on his brakes and slowed down. Here, the bus never
slowed down, it simply maintained its highway speed and veered to the left. This is negligence indeed.[25]

Petitioner contends that the Court of Appeals was mistaken in stating that the bus driver saw respondents motorcycle about
15 meters away before the collision, because the said distance, as testified to by its witness Efren Delantar Ong, was Ongs distance
from the bus, and not the distance of the bus from the motorcycle. Petitioner asserts that this mistaken assumption of the Court of
Appeals made it conclude that the bus driver, Margarito Avila, had the last clear chance to avoid the accident, which was the basis for
the conclusion that Avila was guilty of simple negligence.

A review of the records showed that it was petitioners witness, Efren Delantar Ong, who was about 15 meters away from the
bus when he saw the vehicular accident. [26] Nevertheless, this fact does not affect the finding of the trial court that petitioners bus
driver, Margarito Avila, was guilty of simple negligence as affirmed by the appellate court. Foreseeability is the fundamental test of
negligence.[27] To be negligent, a defendant must have acted or failed to act in such a way that an ordinary reasonable man would
have realized that certain interests of certain persons were unreasonably subjected to a general but definite class of risks. [28]

In this case, the bus driver, who was driving on the right side of the road, already saw the motorcycle on the left side of the
road before the collision. However, he did not take the necessary precaution to slow down, but drove on and bumped the motorcycle,
and also the passenger jeep parked on the left side of the road, showing that the bus was negligent in veering to the left lane,
causing it to hit the motorcycle and the passenger jeep.

Whenever an employees negligence causes damage or injury to another, there instantly arises a presumption that the
employer failed to exercise the due diligence of a good father of the family in the selection or supervision of its employees. [29] To avoid

26

TORTS CASES PRELIM 1st Set

liability for a quasi-delict committed by his employee, an employer must overcome the presumption by presenting convincing proof
that he exercised the care and diligence of a good father of a family in the selection and supervision of his employee. [30]

The Court upholds the finding of the trial court and the Court of Appeals that petitioner is liable to respondent, since it failed
to exercise the diligence of a good father of the family in the selection and supervision of its bus driver, Margarito Avila, for having
failed to sufficiently inculcate in him discipline and correct behavior on the road. Indeed, petitioners tests were concentrated on the
ability to drive and physical fitness to do so. It also did not know that Avila had been previously involved in sideswiping incidents.
As regards the issue on the damages awarded, petitioner contends that it was the only one that appealed the decision of the
trial court with respect to the award of actual and moral damages; hence, the Court of Appeals erred in awarding other kinds of
damages in favor of respondent, who did not appeal from the trial courts decision.
Petitioners contention is unmeritorious.
Section 8, Rule 51 of the 1997 Rules of Civil Procedure provides:
SEC. 8. Questions that may be decided. -- No error which does not affect the jurisdiction over the subject
matter or the validity of the judgment appealed from or the proceedings therein will be considered unless stated in
the assignment of errors, or closely related to or dependent on an assigned error and properly argued in the brief,
save as the court pass upon plain errors and clerical errors.

Philippine National Bank v. Rabat[31] cited the book[32] of Justice Florenz D. Regalado to explain the section above, thus:
In his book, Mr. Justice Florenz D. Regalado commented on this section, thus:
1. Sec. 8, which is an amendment of the former Sec. 7 of this Rule, now includes some substantial changes
in the rules on assignment of errors. The basic procedural rule is that only errors claimed and assigned by a party
will be considered by the court, except errors affecting its jurisdiction over the subject matter. To this exception has
now been added errors affecting the validity of the judgment appealed from or the proceedings therein.
Also, even if the error complained of by a party is not expressly stated in his assignment of errors but the
same is closely related to or dependent on an assigned error and properly argued in his brief, such error may now
be considered by the court. These changes are of jurisprudential origin.
2. The procedure in the Supreme Court being generally the same as that in the Court of
Appeals, unless otherwise indicated (see Secs. 2 and 4, Rule 56), it has been held that the latter is
clothed with ample authority to review matters, even if they are not assigned as errors on appeal, if it
finds that their consideration is necessary in arriving at a just decision of the case. Also, an unassigned
error closely related to an error properly assigned (PCIB vs. CA, et al., L-34931, Mar. 18, 1988), or upon which the
determination of the question raised by error properly assigned is dependent, will be considered by the appellate
court notwithstanding the failure to assign it as error (Ortigas, Jr. vs. Lufthansa German Airlines, L-28773, June 30,
1975; Soco vs. Militante, et al., G.R. No. 58961, June 28, 1983).
It may also be observed that under Sec. 8 of this Rule, the appellate court is authorized to consider a plain
error, although it was not specifically assigned by the appellant (Dilag vs. Heirs of Resurreccion, 76 Phil. 649),
otherwise it would be sacrificing substance for technicalities. [33]

In this case for damages based on quasi-delict, the trial court awarded respondent the sum of P745,575.00, representing loss
of earning capacity (P590,000.00) and actual damages (P155,575.00 for funeral expenses), plus P50,000.00 as moral damages. On
appeal to the Court of Appeals, petitioner assigned as error the award of damages by the trial court on the ground that it was based
merely on suppositions and surmises, not the admissions made by respondent during the trial.
In its Decision, the Court of Appeals sustained the award by the trial court for loss of earning capacity of the deceased
Silvino Tan, moral damages for his death, and actual damages, although the amount of the latter award was modified.

27

TORTS CASES PRELIM 1st Set

The indemnity for loss of earning capacity of the deceased is provided for by Article 2206 of the Civil Code. [34]Compensation

of this nature is awarded not for loss of earnings, but for loss of capacity to earn money. [35]
As a rule, documentary evidence should be presented to substantiate the claim for damages for loss of earning capacity.
[36]

By way of exception, damages for loss of earning capacity may be awarded despite the absence of documentary evidence when:

(1) the deceased is self-employed and earning less than the minimum wage under current labor laws, in which case, judicial notice
may be taken of the fact that in the deceased's line of work no documentary evidence is available; or (2) the deceased is employed
as a daily wage worker earning less than the minimum wage under current labor laws. [37]
In this case, the records show that respondents husband was leasing and operating a Caltex gasoline station in Gumaca,
Quezon. Respondent testified that her husband earned an annual income of one million pesos. Respondent presented in evidence a
Certificate of Creditable Income Tax Withheld at Source for the Year 1990, [38] which showed that respondents husband earned a gross
income of P950,988.43 in 1990. It is reasonable to use the Certificate and respondents testimony as bases for fixing the gross annual
income of the deceased at one million pesos before respondents husband died on March 17, 1999. However, no documentary
evidence was presented regarding the income derived from their copra business; hence, the testimony of respondent as regards such
income cannot be considered.
In the computation of loss of earning capacity, only net earnings, not gross earnings, are to be considered; that is, the total
of the earnings less expenses necessary for the creation of such earnings or income, less living and other incidental expenses. [39] In
the absence of documentary evidence, it is reasonable to peg necessary expenses for the lease and operation of the gasoline station
at 80 percent of the gross income, and peg living expenses at 50 percent of the net income (gross income less necessary expenses).
In this case, the computation for loss of earning capacity is as follows:
Net Earning = Life Expectancy x Gross Annual Income Reasonable and
Capacity [2/3 (80-age at the (GAI) Necessary
time of death)] Expenses
(80% of GAI)
X = [2/3 (80-65)] x P1,000,000.00 - P800,000.00
X = 2/3 (15) x P200,000.00 - P100,000.00
(Living Expenses)
X = 30/3 x P100,000.00
X = 10 x P100,000.00
X = P1,000,000.00
The Court of Appeals also awarded actual damages for the expenses incurred in connection with the death, wake, and
interment of respondents husband in the amount of P154,575.30, and the medical expenses of respondent in the amount
of P168,019.55.

Actual damages must be substantiated by documentary evidence, such as receipts, in order to prove expenses incurred as a
result of the death of the victim [40] or the physical injuries sustained by the victim. A review of the valid receipts submitted in evidence
showed that the funeral and related expenses amounted only to P114,948.60, while the medical expenses of respondentamounted
only to P12,244.25, yielding a total of P127,192.85 in actual damages.

Moreover, the Court of Appeals correctly sustained the award of moral damages in the amount of P50,000.00 for the death
of respondents husband. Moral damages are not intended to enrich a plaintiff at the expense of the defendant. [41] They are awarded

28

TORTS CASES PRELIM 1st Set

to allow the plaintiff to obtain means, diversions or amusements that will serve to alleviate the moral suffering he/she has undergone
due to the defendants culpable action and must, perforce, be proportional to the suffering inflicted. [42]

In addition, the Court of Appeals correctly awarded temperate damages in the amount of P10,000.00 for the damage caused
on respondents motorcycle. Under Art. 2224 of the Civil Code, temperate damages may be recovered when the court finds that some
pecuniary loss has been suffered but its amount cannot, from the nature of the case, be proved with certainty. The cost of the repair
of the motorcycle was prayed for by respondent in her Complaint. However, the evidence presented was merely a job estimate [43] of
the cost of the motorcycles repair amounting to P17, 829.00. The Court of Appeals aptly held that there was no doubt that the
damage caused on the motorcycle was due to the negligence of petitioners driver. In the absence of competent proof of the actual
damage caused on the motorcycle or the actual cost of its repair, the award of temperate damages by the appellate court in the
amount of P10,000.00 was reasonable under the circumstances.[44]

The Court of Appeals also correctly awarded respondent moral damages for the physical injuries she sustained due to the
vehicular accident. Under Art. 2219 of the Civil Code, [45] moral damages may be recovered in quasi-delicts causing physical injuries.
However, the award of P50,000.00 should be reduced to P30,000.00 in accordance with prevailing jurisprudence.[46]
Further, the Court of Appeals correctly awarded respondent civil indemnity for the death of her husband, which has been
fixed by current jurisprudence at P50,000.00.[47] The award is proper under Art. 2206 of the Civil Code. [48]
In fine, the Court of Appeals correctly awarded civil indemnity for the death of respondents husband, temperate damages,
and moral damages for the physical injuries sustained by respondent in addition to the damages granted by the trial court to
respondent. The trial court overlooked awarding the additional damages, which were prayed for by respondent in her Amended
Complaint. The appellate court is clothed with ample authority to review matters, even if they are not assigned as errors in the
appeal, if it finds that their consideration is necessary in arriving at a just decision of the case. [49]

WHEREFORE, the petition is DENIED. The Decision of the Court of Appeals dated August 17, 2004 in CA-G.R. CV No. 70860
is hereby AFFIRMED with MODIFICATION. Petitioner Philippine Hawk Corporation and Margarito Avila are hereby ordered to pay
jointly and severally respondent Vivian Lee Tan: (a) civil indemnity in the amount of Fifty Thousand Pesos (P50,000.00); (b) actual
damages in the amount of One Hundred Twenty-Seven Thousand One Hundred Ninety-Two Pesos andEighty-Five Centavos
( P127,192.85); (c) moral damages in the amount of Eighty Thousand Pesos (P80,000.00); (d) indemnity for loss of earning capacity in
the amount of One Million Pesos (P1,000,000.00); and (e) temperate damages in the amount of Ten Thousand Pesos (P10,000.00).
G.R. No. L-65295 March 10, 1987
PHOENIX
CONSTRUCTION,
INC.
and
ARMANDO
vs.
THE INTERMEDIATE APPELLATE COURT and LEONARDO DIONISIO, respondents.

U.

CARBONEL, petitioners,

FELICIANO, J:
In the early morning of 15 November 1975 at about 1:30 a.m. private respondent Leonardo Dionisio was on his way home he
lived in 1214-B Zamora Street, Bangkal, Makati from a cocktails-and-dinner meeting with his boss, the general manager of a
marketing corporation. During the cocktails phase of the evening, Dionisio had taken "a shot or two" of liquor. Dionisio was driving his
Volkswagen car and had just crossed the intersection of General Lacuna and General Santos Streets at Bangkal, Makati, not far from

29

TORTS CASES PRELIM 1st Set

his home, and was proceeding down General Lacuna Street, when his car headlights (in his allegation) suddenly failed. He switched
his headlights on "bright" and thereupon he saw a Ford dump truck looming some 2-1/2 meters away from his car. The dump truck,
owned by and registered in the name of petitioner Phoenix Construction Inc. ("Phoenix"), was parked on the right hand side of
General Lacuna Street (i.e., on the right hand side of a person facing in the same direction toward which Dionisio's car was
proceeding), facing the oncoming traffic. The dump truck was parked askew (not parallel to the street curb) in such a manner as to
stick out onto the street, partly blocking the way of oncoming traffic. There were no lights nor any so-called "early warning" reflector
devices set anywhere near the dump truck, front or rear. The dump truck had earlier that evening been driven home by petitioner
Armando U. Carbonel, its regular driver, with the permission of his employer Phoenix, in view of work scheduled to be carried out
early the following morning, Dionisio claimed that he tried to avoid a collision by swerving his car to the left but it was too late and his
car smashed into the dump truck. As a result of the collision, Dionisio suffered some physical injuries including some permanent facial
scars, a "nervous breakdown" and loss of two gold bridge dentures.
Dionisio commenced an action for damages in the Court of First Instance of Pampanga basically claiming that the legal and proximate
cause of his injuries was the negligent manner in which Carbonel had parked the dump truck entrusted to him by his employer
Phoenix. Phoenix and Carbonel, on the other hand, countered that the proximate cause of Dionisio's injuries was his own recklessness
in driving fast at the time of the accident, while under the influence of liquor, without his headlights on and without a curfew pass.
Phoenix also sought to establish that it had exercised due rare in the selection and supervision of the dump truck driver.
The trial court rendered judgment in favor of Dionisio and against Phoenix and Carbonel and ordered the latter:
(1) To pay plaintiff jointly and severally the sum of P 15,000.00 for hospital bills and the replacement of the lost
dentures of plaintiff;
(2) To pay plaintiff jointly and severally the sum of P 1,50,000.-00 as loss of expected income for plaintiff brought
about the accident in controversy and which is the result of the negligence of the defendants;
(3) To pay the plaintiff jointly and severally the sum of P 10,000. as moral damages for the unexpected and sudden
withdrawal of plaintiff from his lifetime career as a marketing man; mental anguish, wounded feeling, serious
anxiety, social humiliation, besmirched reputation, feeling of economic insecurity, and the untold sorrows and
frustration in life experienced by plaintiff and his family since the accident in controversy up to the present time;
(4) To pay plaintiff jointly and severally the sum of P 10,000.00 as damages for the wanton disregard of defendants
to settle amicably this case with the plaintiff before the filing of this case in court for a smaller amount.
(5) To pay the plaintiff jointly and severally the sum of P 4,500.00 due as and for attorney's fees; and
(6) The cost of suit. (Emphasis supplied)
Phoenix and Carbonel appealed to the Intermediate Appellate Court. That court in CA-G.R. No. 65476 affirmed the decision of the trial
court but modified the award of damages to the following extent:
1. The award of P15,000.00 as compensatory damages was reduced to P6,460.71, the latter being
the only amount that the appellate court found the plaintiff to have proved as actually sustained
by him;
2. The award of P150,000.00 as loss of expected income was reduced to P100,000.00,basically
because Dionisio had voluntarily resigned his job such that, in the opinion of the appellate court,
his loss of income "was not solely attributable to the accident in question;" and
3. The award of P100,000.00 as moral damages was held by the appellate court as excessive and
unconscionable and hence reduced to P50,000.00.
The award of P10,000.00 as exemplary damages and P4,500.00 as attorney's fees and costs
remained untouched.
This decision of the Intermediate Appellate Court is now before us on a petition for review.
Both the trial court and the appellate court had made fairly explicit findings of fact relating to the manner in which the dump truck
was parked along General Lacuna Street on the basis of which both courts drew the inference that there was negligence on the part
of Carbonel, the dump truck driver, and that this negligence was the proximate cause of the accident and Dionisio's injuries. We note,
however, that both courts failed to pass upon the defense raised by Carbonel and Phoenix that the true legal and proximate cause of
the accident was not the way in which the dump truck had been parked but rather the reckless way in which Dionisio had driven his
car that night when he smashed into the dump truck. The Intermediate Appellate Court in its questioned decision casually conceded
that Dionisio was "in some way, negligent" but apparently failed to see the relevance of Dionisio's negligence and made no further
mention of it. We have examined the record both before the trial court and the Intermediate Appellate Court and we find that both
parties had placed into the record sufficient evidence on the basis of which the trial court and the appellate court could have and
should have made findings of fact relating to the alleged reckless manner in which Dionisio drove his car that night. The petitioners

30

TORTS CASES PRELIM 1st Set

Phoenix and Carbonel contend that if there was negligence in the manner in which the dump truck was parked, that negligence was
merely a "passive and static condition" and that private respondent Dionisio's recklessness constituted an intervening, efficient cause
determinative of the accident and the injuries he sustained. The need to administer substantial justice as between the parties in this
case, without having to remand it back to the trial court after eleven years, compels us to address directly the contention put forward
by the petitioners and to examine for ourselves the record pertaining to Dionisio's alleged negligence which must bear upon the
liability, or extent of liability, of Phoenix and Carbonel.
There are four factual issues that need to be looked into: (a) whether or not private respondent Dionisio had a curfew pass valid and
effective for that eventful night; (b) whether Dionisio was driving fast or speeding just before the collision with the dump truck; (c)
whether Dionisio had purposely turned off his car's headlights before contact with the dump truck or whether those headlights
accidentally malfunctioned moments before the collision; and (d) whether Dionisio was intoxicated at the time of the accident.
As to the first issue relating to the curfew pass, it is clear that no curfew pass was found on the person of Dionisio immediately after
the accident nor was any found in his car. Phoenix's evidence here consisted of the testimony of Patrolman Cuyno who had taken
Dionisio, unconscious, to the Makati Medical Center for emergency treatment immediately after the accident. At the Makati Medical
Center, a nurse took off Dionisio's clothes and examined them along with the contents of pockets together with Patrolman
Cuyno. 1 Private respondent Dionisio was not able to produce any curfew pass during the trial. Instead, he offered the explanation
that his family may have misplaced his curfew pass. He also offered a certification (dated two years after the accident) issued by one
Major Benjamin N. Libarnes of the Zone Integrated Police Intelligence Unit of Camp Olivas, San Fernando, Pampanga, which was said
to have authority to issue curfew passes for Pampanga and Metro Manila. This certification was to the effect that private respondent
Dionisio had a valid curfew pass. This certification did not, however, specify any pass serial number or date or period of effectivity of
the supposed curfew pass. We find that private respondent Dionisio was unable to prove possession of a valid curfew pass during the
night of the accident and that the preponderance of evidence shows that he did not have such a pass during that night. The
relevance of possession or non-possession of a curfew pass that night lies in the light it tends to shed on the other related issues:
whether Dionisio was speeding home and whether he had indeed purposely put out his headlights before the accident, in order to
avoid detection and possibly arrest by the police in the nearby police station for travelling after the onset of curfew without a valid
curfew pass.
On the second issue whether or not Dionisio was speeding home that night both the trial court and the appellate court were
completely silent.
The defendants in the trial court introduced the testimony of Patrolman Cuyno who was at the scene of the accident almost
immediately after it occurred, the police station where he was based being barely 200 meters away. Patrolman Cuyno testified that
people who had gathered at the scene of the accident told him that Dionisio's car was "moving fast" and did not have its headlights
on. 2 Dionisio, on the other hand, claimed that he was travelling at a moderate speed at 30 kilometers per hour and had just crossed
the intersection of General Santos and General Lacuna Streets and had started to accelerate when his headlights failed just before
the collision took place. 3
Private respondent Dionisio asserts that Patrolman Cuyno's testimony was hearsay and did not fag within any of the recognized
exceptions to the hearsay rule since the facts he testified to were not acquired by him through official information and had not been
given by the informants pursuant to any duty to do so. Private respondent's objection fails to take account of the fact that the
testimony of Patrolman Cuyno is admissible not under the official records exception to the hearsay rule 4 but rather as part of the res
gestae. 5 Testimonial evidence under this exception to the hearsay rule consists of excited utterances made on the occasion of an
occurrence or event sufficiently startling in nature so as to render inoperative the normal reflective thought processes of the observer
and hence made as a spontaneous reaction to the occurrence or event, and not the result of reflective thought. 6
We think that an automobile speeding down a street and suddenly smashing into a stationary object in the dead of night is a
sufficiently startling event as to evoke spontaneous, rather than reflective, reactions from observers who happened to be around at
that time. The testimony of Patrolman Cuyno was therefore admissible as part of the res gestae and should have been considered by
the trial court. Clearly, substantial weight should have been ascribed to such testimony, even though it did not, as it could not, have
purported to describe quantitatively the precise velocity at winch Dionisio was travelling just before impact with the Phoenix dump
truck.
A third related issue is whether Dionisio purposely turned off his headlights, or whether his headlights accidentally malfunctioned, just
moments before the accident. The Intermediate Appellate Court expressly found that the headlights of Dionisio's car went off as he
crossed the intersection but was non-committal as to why they did so. It is the petitioners' contention that Dionisio purposely shut off
his headlights even before he reached the intersection so as not to be detected by the police in the police precinct which he (being a
resident in the area) knew was not far away from the intersection. We believe that the petitioners' theory is a more credible
explanation than that offered by private respondent Dionisio i.e., that he had his headlights on but that, at the crucial moment,
these had in some mysterious if convenient way malfunctioned and gone off, although he succeeded in switching his lights on again
at "bright" split seconds before contact with the dump truck.
A fourth and final issue relates to whether Dionisio was intoxicated at the time of the accident. The evidence here consisted of the
testimony of Patrolman Cuyno to the effect that private respondent Dionisio smelled of liquor at the time he was taken from his
smashed car and brought to the Makati Medical Center in an unconscious condition. 7 This testimony has to be taken in conjunction
with the admission of Dionisio that he had taken "a shot or two" of liquor before dinner with his boss that night. We do not believe
that this evidence is sufficient to show that Dionisio was so heavily under the influence of liquor as to constitute his driving a motor
vehicle per se an act of reckless imprudence. 8There simply is not enough evidence to show how much liquor he had in fact taken and
the effects of that upon his physical faculties or upon his judgment or mental alertness. We are also aware that "one shot or two" of
hard liquor may affect different people differently.

31

TORTS CASES PRELIM 1st Set

The conclusion we draw from the factual circumstances outlined above is that private respondent Dionisio was negligent the night of
the accident. He was hurrying home that night and driving faster than he should have been. Worse, he extinguished his headlights at
or near the intersection of General Lacuna and General Santos Streets and thus did not see the dump truck that was parked askew
and sticking out onto the road lane.
Nonetheless, we agree with the Court of First Instance and the Intermediate Appellate Court that the legal and proximate cause of the
accident and of Dionisio's injuries was the wrongful or negligent manner in which the dump truck was parked in other words, the
negligence of petitioner Carbonel. That there was a reasonable relationship between petitioner Carbonel's negligence on the one
hand and the accident and respondent's injuries on the other hand, is quite clear. Put in a slightly different manner, the collision of
Dionisio's car with the dump truck was a natural and foreseeable consequence of the truck driver's negligence.
The petitioners, however, urge that the truck driver's negligence was merely a "passive and static condition" and that private
respondent Dionisio's negligence was an "efficient intervening cause and that consequently Dionisio's negligence must be regarded
as the legal and proximate cause of the accident rather than the earlier negligence of Carbonel. We note that the petitioners'
arguments are drawn from a reading of some of the older cases in various jurisdictions in the United States but we are unable to
persuade ourselves that these arguments have any validity for our jurisdiction. We note, firstly, that even in the United States, the
distinctions between "cause" and "condition" which the 'petitioners would have us adopt have already been "almost entirely
discredited." Professors and Keeton make this quite clear:
Cause and condition. Many courts have sought to distinguish between the active "cause" of the harm and the
existing "conditions" upon which that cause operated. If the defendant has created only a passive static condition
which made the damage possible, the defendant is said not to be liable. But so far as the fact of causation is
concerned, in the sense of necessary antecedents which have played an important part in producing the result it is
quite impossible to distinguish between active forces and passive situations, particularly since, as is invariably the
case, the latter are the result of other active forces which have gone before. The defendant who spills gasoline
about the premises creates a "condition," but the act may be culpable because of the danger of fire. When a spark
ignites the gasoline, the condition has done quite as much to bring about the fire as the spark; and since that is the
very risk which the defendant has created, the defendant will not escape responsibility. Even the lapse of a
considerable time during which the "condition" remains static will not necessarily affect liability; one who digs a
trench in the highway may still be liable to another who fans into it a month afterward. "Cause" and "condition" still
find occasional mention in the decisions; but the distinction is now almost entirely discredited. So far as it has any
validity at all, it must refer to the type of case where the forces set in operation by the defendant have come to rest
in a position of apparent safety, and some new force intervenes. But even in such cases, it is not the distinction
between "cause" and "condition" which is important but the nature of the risk and the character of the intervening
cause. 9
We believe, secondly, that the truck driver's negligence far from being a "passive and static condition" was rather an indispensable
and efficient cause. The collision between the dump truck and the private respondent's car would in an probability not have occurred
had the dump truck not been parked askew without any warning lights or reflector devices. The improper parking of the dump truck
created an unreasonable risk of injury for anyone driving down General Lacuna Street and for having so created this risk, the truck
driver must be held responsible. In our view, Dionisio's negligence, although later in point of time than the truck driver's negligence
and therefore closer to the accident, was not an efficient intervening or independent cause. What the Petitioners describe as an
"intervening cause" was no more than a foreseeable consequent manner which the truck driver had parked the dump truck. In other
words, the petitioner truck driver owed a duty to private respondent Dionisio and others similarly situated not to impose upon them
the very risk the truck driver had created. Dionisio's negligence was not of an independent and overpowering nature as to cut, as it
were, the chain of causation in fact between the improper parking of the dump truck and the accident, nor to sever the juris vinculum
of liability. It is helpful to quote once more from Professor and Keeton:
Foreseeable Intervening Causes. If the intervening cause is one which in ordinary human experience is reasonably
to be anticipated or one which the defendant has reason to anticipate under the particular circumstances, the
defendant may be negligence among other reasons, because of failure to guard against it; or the defendant may be
negligent only for that reason. Thus one who sets a fire may be required to foresee that an ordinary, usual and
customary wind arising later wig spread it beyond the defendant's own property, and therefore to take precautions
to prevent that event. The person who leaves the combustible or explosive material exposed in a public place may
foresee the risk of fire from some independent source. ... In all of these cases there is an intervening cause
combining with the defendant's conduct to produce the result and in each case the defendant's negligence consists
in failure to protect the plaintiff against that very risk.
Obviously the defendant cannot be relieved from liability by the fact that the risk or a substantial and important
part of the risk, to which the defendant has subjected the plaintiff has indeed come to pass. Foreseeable
intervening forces are within the scope original risk, and hence of the defendant's negligence. The courts are quite
generally agreed that intervening causes which fall fairly in this category will not supersede the defendant's
responsibility.
Thus it has been held that a defendant will be required to anticipate the usual weather of the vicinity, including all
ordinary forces of nature such as usual wind or rain, or snow or frost or fog or even lightning; that one who leaves
an obstruction on the road or a railroad track should foresee that a vehicle or a train will run into it; ...
The risk created by the defendant may include the intervention of the foreseeable negligence of others. ... [The
standard of reasonable conduct may require the defendant to protect the plaintiff against 'that occasional
negligence which is one of the ordinary incidents of human life, and therefore to be anticipated.' Thus, a defendant

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who blocks the sidewalk and forces the plaintiff to walk in a street where the plaintiff will be exposed to the risks of
heavy traffic becomes liable when the plaintiff is run down by a car, even though the car is negligently driven; and
one who parks an automobile on the highway without lights at night is not relieved of responsibility when another
negligently drives into it. --- 10

We hold that private respondent Dionisio's negligence was "only contributory," that the "immediate and proximate cause" of the
injury remained the truck driver's "lack of due care" and that consequently respondent Dionisio may recover damages though such
damages are subject to mitigation by the courts (Article 2179, Civil Code of the Philippines).
Petitioners also ask us to apply what they refer to as the "last clear chance" doctrine. The theory here of petitioners is that while the
petitioner truck driver was negligent, private respondent Dionisio had the "last clear chance" of avoiding the accident and hence his
injuries, and that Dionisio having failed to take that "last clear chance" must bear his own injuries alone. The last clear chance
doctrine of the common law was imported into our jurisdiction by Picart vs. Smith 11 but it is a matter for debate whether, or to what
extent, it has found its way into the Civil Code of the Philippines. The historical function of that doctrine in the common law was to
mitigate the harshness of another common law doctrine or rule that of contributory negligence. 12 The common law rule of
contributory negligence prevented any recovery at all by a plaintiff who was also negligent, even if the plaintiff's negligence was
relatively minor as compared with the wrongful act or omission of the defendant. 13 The common law notion of last clear chance
permitted courts to grant recovery to a plaintiff who had also been negligent provided that the defendant had the last clear chance to
avoid the casualty and failed to do so. 14 Accordingly, it is difficult to see what role, if any, the common law last clear chance doctrine
has to play in a jurisdiction where the common law concept of contributory negligence as an absolute bar to recovery by the plaintiff,
has itself been rejected, as it has been in Article 2179 of the Civil Code of the Philippines. 15
Is there perhaps a general concept of "last clear chance" that may be extracted from its common law matrix and utilized as a general
rule in negligence cases in a civil law jurisdiction like ours? We do not believe so. Under Article 2179, the task of a court, in technical
terms, is to determine whose negligence the plaintiff's or the defendant's was the legal or proximate cause of the injury. That
task is not simply or even primarily an exercise in chronology or physics, as the petitioners seem to imply by the use of terms like
"last" or "intervening" or "immediate." The relative location in the continuum of time of the plaintiff's and the defendant's negligent
acts or omissions, is only one of the relevant factors that may be taken into account. Of more fundamental importance are the nature
of the negligent act or omission of each party and the character and gravity of the risks created by such act or omission for the rest of
the community. The petitioners urge that the truck driver (and therefore his employer) should be absolved from responsibility for his
own prior negligence because the unfortunate plaintiff failed to act with that increased diligence which had become necessary to
avoid the peril precisely created by the truck driver's own wrongful act or omission. To accept this proposition is to come too close to
wiping out the fundamental principle of law that a man must respond for the forseeable consequences of his own negligent act or
omission. Our law on quasi-delicts seeks to reduce the risks and burdens of living in society and to allocate them among the members
of society. To accept the petitioners' pro-position must tend to weaken the very bonds of society.
Petitioner Carbonel's proven negligence creates a presumption of negligence on the part of his employer Phoenix 16 in supervising its
employees properly and adequately. The respondent appellate court in effect found, correctly in our opinion, that Phoenix was not
able to overcome this presumption of negligence. The circumstance that Phoenix had allowed its truck driver to bring the dump truck
to his home whenever there was work to be done early the following morning, when coupled with the failure to show any effort on the
part of Phoenix to supervise the manner in which the dump truck is parked when away from company premises, is an affirmative
showing of culpa in vigilando on the part of Phoenix.
Turning to the award of damages and taking into account the comparative negligence of private respondent Dionisio on one hand and
petitioners Carbonel and Phoenix upon the other hand, 17 we believe that the demands of substantial justice are satisfied by
allocating most of the damages on a 20-80 ratio. Thus, 20% of the damages awarded by the respondent appellate court, except the
award of P10,000.00 as exemplary damages and P4,500.00 as attorney's fees and costs, shall be borne by private respondent
Dionisio; only the balance of 80% needs to be paid by petitioners Carbonel and Phoenix who shall be solidarity liable therefor to the
former. The award of exemplary damages and attorney's fees and costs shall be borne exclusively by the petitioners. Phoenix is of
course entitled to reimbursement from Carbonel. 18 We see no sufficient reason for disturbing the reduced award of damages made
by the respondent appellate court.
WHEREFORE, the decision of the respondent appellate court is modified by reducing the aggregate amount of compensatory
damages, loss of expected income and moral damages private respondent Dionisio is entitled to by 20% of such amount. Costs
against the petitioners.