G.R. No.

L-25847 June 19, 1979

POTENCIANO SUNGA, ET AL, petitioners,

vs.
BENITO DE GUZMAN, ET AL., respondents.

Benjamin H. Razon for petitioner.

DE CASTRO, J.:

Petitioners appeal by this petition for certiorari from the decision of the Court of Appeals * affirming, as being in accordance with law
and the evidence, the decision of the Court Of First Instance of Pampanga the dispositive portion of which reads as follows:

WHEREFORE, this Court hereby renders judgment in favor of the plaintiffs and against the defendants the plaintiffs
absolute owners of the three-ninth portion pro-indiviso of the property in litigation and orders the defendants to
convey the said three-ninth portion pro-indiviso to the herein plaintiffs and to render an accounting of the
corresponding harvest from 1947 up to the present to deliver to the plaintiffs whatever products or its corresponding
value that may correspond to them as their participation of the harvest during that period and to pay attorney's fees in
the amount of P500.00, with costs. (p. 52, Record on Appeal.)

As found by the Court of Appeals, the pertinent facts, quoting from its decision promulgated on January 17, 1966, are as follows:

It is undisputed that the private contract of sale (Exhibit C was signed by five (5) of the nine (9) legitimate heirs of the
spouses Juan de Guzman and Lucia Montemayor. There is also no dispute that the property in question was a
fishpond of 5,590 sq. m situated in the barrio of Sebitanan municipality of Sexmoa province of Pampanga. It is also
undisputed that five (5) of the heirs, namely, Gervacio, Felino Casiano, Marcelino and Marciano, all surnamed De
Guzman were the only heirs among the nine (9) children who sold their respective shares to Feliciano Sibug, a
widower, for and in consideration of P700.00, as shown in the said deed of sales, Exhibit C, on July 1, 1947.
However, the referred deed of sale is not notarized nor registered in the Register of Deeds of Pampanga. The
records also disclosed that according to the declaration of real estate (Exh B) the said property was still registered in
the name of the father of the aforesaid plaintiffs appellees up to October 5, 1962. The records further disclosed that
the De Guzman couple died in 1935 and 1937, respectively, hence by operation of law, the nine (9) children
succeeded in the ownership of the property in question. Demands were made by plaintiffs-appellees for the delivery
of their respective shares from the defendants-appellants since 1955, but the latter refused to comply with their
Lawful (sic) demands. From the execution of the deed of sale, defendants-appellants were in physical possession of
the fishpond in question, hence an action was instituted against the defendants on February 5,1962.

From the private deed of sale (Exhibit C) it is indisputably clear that five (5) of the heirs of the late Juan de Guzman
and Lucia Montemayor signed and four (4) other did not sign. However, three (3) co-heirs only filed the complaint
namely Benito, Emilia and Fe all surnamed De Guzman, which represents 3/9 of the property in question which
cannot be considered as sold to the defendants-appellants by any stretch of the imagination. To claim now that the
whole property in question was sold to the said defendants-appellants is absurd.

Upon the foregoing facts, the veracity of which not being challenged, is binding upon this Court, are predicated the legal issues raised
by petitioners-appellants, which are as reflected in the errors assigned by them against the Court of Appeals, to wit:

FIRST ASSIGNMENT OF ERROR

THE LOWER COURT ERRED IN DISREGARDING THE TESTIMONY OF BENITO DE GUZMAN REFERRING TO
HIS KNOWLEDGE OF THE POSSESSION OF THE LAND IN QUESTION BY THE DEFENDANTS-APPELLANTS
WAY BACK IN 1948.

SECOND ASSIGNMENT OF ERROR

THE LOWER COURT ERRED IN NOT TAKING INTO ACCOUNT THE TESTIMONY OF BENITO DE GUZMAN
WHICH REFERS TO HIS KNOWLEDGE AND HIS SISTERS OF THE SALE OF THE LAND IN QUESTION To
FELICIANO SIBUG IN 1948.

THIRD ASSIGNMENT OF ERROR

THE LOWER COURT ERRED IN NOT RULING THAT THE CAUSE OF ACTION PLEADED BY THE PLAINTIFFS.
APPELLEES HAS ALREADY PRESCRIBED.

FOURTH ASSIGNMENT OF ERROR

THE LOWER COURT ERRED IN NOT RULING THAT THE APPELLANTS HAVE ACQUIRED OWNERSHIP OF
THE LAND IN QUESTION THRU ACQUISITIVE AND EXTINCTIVE PRESCRIPTION.

As may be seen from the assignments of error, petitioners rely, mainly, if not solely, on the defense of prescription in
resisting the action of respondents-appellees to recover their shares, consisting of 3/9 of the whole fishpond, which
they inherited from their parents, jointly with their other brothers and sisters, who sold their shares in the property to
the predecessor of herein petitioners-appellants.

Petitioners-appellants' claim Of prescription against respondents- appellees is made to rest on their alleged adverse
possession of the whole fishpond, dating back from 1948. In support of their allegation Of having possessed
adversely the property m question, they quoted the following testimony of Benito de Guzman, one of the appellees:

Direct Examination

Q. Do you know what happened to this land in l948?

A. I know.

Q. What happened, will you please state to the Court?

A. Potenciano Sunga came in possession.

Q. Do you know the reasons why Potenciano Sunga took possession of this land?

A. I know.

Q. What is that, will you lease state to the Court?

A. The share of my six brothers was sold to Potenciano Sunga.

Q. Oct. 5, 1962, (pages 6 and 7, Tiglao.)

Cross Examination

Q. According to you this Document Exhibit "C" you said you came to know of this document. Can
you tell the Court when did you come to know of this document?

A. If I am not mistaken it was sold in l948.

COURT: Answer the question.

Q. When did you come to know that document of the existence of that document?

A. It is only now that l saw this document.

Q. Mr. De Guzman you stated that in 1955 you came to know the defendant Potenciano Sunga
came in possession of the land sketched in Exhibit A, is that correct?

A. Yes, sir, it was in 1948 when he came to possession.

Q. In 1948 that was the first time you came to know that Potenciano Sunga took possession?

A. A. In 1948.
 Q. How did you happen to know that Potenciano Sunga took possession of the land covered by the
sketch in Exhibit "A"?

A. I came to know it from my 6 brothers who sold their shares.

Q. They also told you how much they sold the property you have described in this sketch?

A. Yes, sir, for P700.00.

.Q. What about E and F de Guzman, if you know, did they come to know also that Potenciano
Sunga came in possession of the land?

A. Yes, sir.

Q. That was also in 1948?

A. Yes,sir. (Emphasis supplied; t.s.n., Oct. 5, 1962, pages l6, 17, 18, Tiglao ).

What is notably significant from the above-quoted testimony is that appellees, while they knew of the possession of petitioners
commencing in the year 1948, they knew of the sale only when they were told by their brothers who sold their share. As to when the
information was given to appellees, the quoted testimony does not indicate in any positive manner. Had the information been given
upon the execution of the document, and if the sale included the whole fishpond, not only the share of the vendors, there is no reason
why appellees did not similarly sign as vendors on the private instrument of sale. What this proves is that appellees were not definitely
aware that appellant's possession extended over the whole fishpond, including that which pertained to them as their share. In that state
of their knowledge as to the extent and nature of petitioners-appellant's possession, said possession cannot be said to be adverse and
open as to give rise to title by prescription in favor of petitioners-appellants.

A fishpond is not as physically or actually occupied or held in possession as a parcel of land, in that the signs of possession in the latter
are more visible, and the extent of its exercise or enjoyment, more manifest and easily determined. Hence, the adverse nature of the
possession of parcel of land is more overt as to satisfy also the other element of proscription that the possession must be open and
public. In the case of a fishpond, owned in common, one or some of whose co-owners sell their undivided share to another, the only
way the whole fishpond, including the shares of the other co-owners may be said to have been held in adverse possession by the
vendee, as against the co-owners who did not sell is if he harvests all the fish in the fishpond, leaving nothing for the other co-owners
who did not sell their share. This is not as easily ascertained as in the exercise of possession over a piece of land, which is relatively
quite easy to show that the possession is to the exclusion of the other co-owners by the extent of the possession, as by actual
occupation or the land is for occupancy, or the extent of the enjoyment of the produce of said land, as when it is for cultivation or raising
of products sustained by the soil. When one harvests from a fishpond, of which he is only a part-owner, it must be assumed that his
harvest is only to the extent he is rightfully entitled to, until the contrary is positively shown, which was not done in the present case.

Likewise, against appellants' pretension is the fact that the tax declaration (Exhibit "B") over the land has remained up to the present in
the name of the original owners. the deceased parents of respondents-appellees. The possession of petitioners-appellants, was,
therefore, not completely adverse or open, nor was it truly in the concept of an owner, which are indispensable elements for prescription
to become legally effective as a means of acquiring real property. (Articles 1117 and 1118, Civil Code of the Philippines; Corpuz vs.
Padilla, 5 SCRA 814, 820; Agolto vs. Court of Appeals, 33 SCRA 765, 771; Cabrera vs. Tiano 8 SCRA 542, 545; Diñoso vs. Court of
Appeals, 7 SCRA 666,669; Mendoza, et al. vs. Mera 17 SCRA 788, 792; Harden vs. Harden, et al., 20 SCRA 706, 711; Seminary of
San Carlos vs. Municipality of Cebu, 19 Phil. 32, 40; Negrete vs. Court of First Instance of Marinduque, 48 SCRA 113,122-123).

The argument of petitioner-appellant that they have not been giving respondents-appellees their share in the harvest, and by such act,
they have shown repudiation of the trust which may have been created is not quite convincing. With the undisputed fact that petitioners-
appellants had promised one of the respondents-appellees, Benito de Guzman, to pay him for his share in the land, petitioners-
appellants have manifested their continuing recognition of the right of said respondent-appellee, including his two sisters, his
corespondents-appellees herein, over their corresponding share of the fishpond, as long as the promise was not expressly withdrawn,
but has, as is apparent from the evidence, remained subsisting and continuing, since no definite date was fixed for the promise to be
fulfilled. To constitute the failure to pay as promised as an act of repudiation of the trust, or as a manifestation of adverse possession,
there should be an uneequivocal act of refusal to make payment, or a definite reneging from the promise. This can happen only if a
date has been fixed for the fulfillment of the promise, but the period had lapsed without the promise having been redeemed.

As also correctly held by the respondent Court, the promise of petitioners-appellants to pay for the share of respondents. appellees
interrupts the possession as a source of prescriptive rights. (Article 1125, Civil Code; San Carlos vs. Municipality of Cebu, 19 Phil. 32).
In the case herein cited, Justice Moreland said:

Any express or implied acknowledgment which the possessor makes with regard to the dominant rights of the true
owner, interrupts the possession held for prescriptive purposes and defeats the operation of the law granting such
rights.
In trying to refute this ruling of the Court of Appeals, petitioners-appellants cite Article 1155 of the New Civil Code which reads:

The prescription of action is interrupted when they are filed before the Court, when there is a written extra-judicial
demand by the creditors and when there is any written acknowledgment of the debt by the debtor,

As may easily be discerned, the cited provision has no relevance to possession as an element of prescription, referring as it does to
"prescription of action", an entirely different matter from the "interruption of possession" for acquisitive prescriptive purposes, as held in
the case of San Carlos vs. Municipality of Cebu, supra.

As to the alleged error of the Court for not dismissing the case for the non-inclusion of indispensable parties, appellees contend that
this question was never raised in the Motion to Dismiss filed by petitioners with the trial court (pp. 6-10, Record on Appeal), nor in their
brief in the Court of Appeals, and, therefore may not be raised, nor given consideration. for the first time in this Court. This is a valid
proposition We have to uphold. Even by virtue of express provisions of law, representative suits that need not be joined by an parties in
the same status or condition, and linked together with a common interest, are permissible. Thus anyone of the co-owners may bring an
action for ejectment (Article 487, Civil Code), while prescription obtained by a co-proprietor or a co-owner shall benefit the others
(Article 111 Civil Code). Moreover, non-joinder of parties, is not a ground to dismiss an action. (Section 11, Rule 3, Revised Rules of
Court; Salazar, et al vs. Ortizano 16 SCRA 662, 666; MacLeod vs. Cohen Erichs Corporation, 1 Federal Rules Service 306; Holmberg
vs. Hannaford 1 Federal Rules Service 307; Sanchez vs. Court of First Instance of Rizal, 40 Phil. 155, 159; De los Santos vs. Sheriff of
Rizal, 64 Phil. 193, 198; Esperanza Montes vs. Enrique S. Castro and Rosendo M. Castro, 105 Phil. 1302, 1303-1304).

With the adverse disposition of all the assignments of error of the petitioners-appellants we have to find their petition as devoid of any
merit. We find the weight of justice and equity on the side of respondents-appellees who had not parted with their share, as their other
brothers did who sold their share with a document signed by them, but not by respondents-appellees, a strong shield against the weak
thrust of prescription as the sole defense of appellants in resisting the just claim of appellees for the recovery of their share, prosecuting
their claim as paupers. So did the Court of First Instance see the position of appellees, as so also the Court of Appeals. We find no
reason to make Us take a different view.

WHEREFORE, the judgment appealed from should be, as it is hereby affirmed, and the present petition, dismissed with costs against
petitioners-appellants.
G.R. No. 106646 June 30, 1993

JAIME LEDESMA, petitioner,
vs.
COURT OF APPEALS and RIZAL COMMERCIAL BANKING CORPORATION, respondents.

Ledesma, Saludo & Associates for petitioner.

Meer, Meer & Meer Law Office for private respondent.

REGALADO, J.:

Petitioner has filed a motion for reconsideration of the Court's resolution of March 24, 1993 which denied his petition for review
on certiorari for failure to sufficiently show that respondent Court of Appeals had committed any reversible error in its questioned
judgment.

On August 21, 1980, private respondent Rizal Commercial Banking Corporation filed Case No. 38287 in the then Court of First Instance
of Rizal against petitioner to enforce the terms of Trust Receipt Agreement No. 7389 executed by them on April 1, 1974 but which
petitioner had failed to comply with. As summons could not be served on the latter, said case was dismissed without prejudice on
March 3, 1981. On December 2, 1988, private respondent bank instituted Civil Case No. 88-2572 in the Regional Trial Court of Makati,
Metro Manila, Branch 133, against petitioner on the same cause of action and subject matter.

Petitioner's motion to dismiss on the ground of prescription was denied and judgment was rendered in favor of private respondent by
the court a quo  ordering petitioner to pay private respondent P168,00.00 with interest thereon of 12%  per annum  from December 2,
1988 until full payment of the obligation, P16,800.00 as attorney's fees, and costs of suit. Said judgment was affirmed by respondent
Court in CA-G.R. CV No. 29406 in its decision promulgated on January 7, 1992,1 and petitioner's motion for reconsideration thereof
was denied in a resolution dated August 6, 1992.2

Petitioner's petition for review on certiorari  of the said judgment was denied in our aforesaid resolution, hence its present motion for
reconsideration, dated May 5, 1993. Contending that the second action filed by private respondent bank had already prescribed,
petitioner invokes the rulings in Vda. de Nator, et al. vs. Court of Industrial Relations, et al.3 and Fulton Insurance Co. vs. Manila
Railroad Co., et al.4 and invites us "to give a second look at the apparently conflicting or divergent jurisprudence."

Article 1155 of the Civil. Code provides that the prescription of an action, involving in the present case the 10-year prescriptive period
for filing an action on a written contract under Article 1144(1) of the Code, is interrupted by (a) the filing of an action, (b) a written
extrajudicial demand by the creditor, and (c) a written acknowledgment of the debt by the debtor. The effects of the last two instances
have already been decided by this Court, the rationale wherein should necessarily apply to the first.

The matter of the interruption of the prescriptive period by reason of a written extrajudicial demand by the creditor was decided
in Overseas Bank of Manila vs. Geraldez, et al.5 in this wise:

. . . The interruption of the prescriptive period by written extrajudicial demand means that the said period would
commence anew from the receipt of the demand. That is the correct meaning of interruption as distinguished from
mere suspension or tolling of the prescriptive period.

xxx xxx xxx

A written extrajudicial demand wipes out the period that has already elapsed and starts anew the prescriptive
period. . . .

xxx xxx xxx

That same view as to the meaning of interruption was adopted in Florendo vs. Organo, 90 Phil 483, 488, where it was
ruled that the interruption of the ten-year prescriptive period through a judicial demand means that "the full period of
prescription commenced to run anew upon the cessation of the suspension." When prescription is interrupted by a
judicial demand, the full time for the prescription must be reckoned from the cessation of the interruption. . . .

The interruption of the prescriptive period by reason of a written acknowledgment of the debt by the debtor was dealt with in Philippine
National Railways vs. National Labor Relations Commission, et al.,6 thus:
 Article 1155 of the Civil Code provides that the "prescription of actions is interrupted" inter alia, "when there is any
written acknowledgment of the debt by the debtor." This simply means that the period of prescription, when
interrupted by such a written acknowledgment, begins to run anew; and whatever time of limitation might have
already elapsed from the accrual of the cause of action is thereby negated and rendered inefficacious. . . .

xxx xxx xxx

. . . The effect of the interruption spoken of in Article 1155 is to renew the obligation, to make prescription run again
from the date of the interruption . . .

Based on the aforecited cases, Article 1155 has twice been interpreted to mean that upon the cessation of the suspension of the
prescriptive period, the full period of prescription commences to run anew. Petitioner, on the other hand, insists that in case of the filing
of an action, the prescriptive period is merely tolled and continues to run again, with only the balance of the remaining period available
for the filing of another action. This postulation of petitioner, if we are to adopt it, would result in an absurdity wherein Article 1155 would
be interpreted in two different ways, i.e., the prescriptive period is interrupted in case of an extrajudicial demand and a written
acknowledgment of a debt, but it is merely tolled where an action is filed in court.

In Vda. de Nator, it was held that:

. . . The filing of the case with the CFI arrested the period of prescription (Art. 1155 NCC), and the interruption of said
period lasted until the time that the dismissal for lack of jurisdiction became final. "When prescription is interrupted by
a judicial demand, the full time for the prescription must be reckoned from the cessation of the interruption". . . . The
whole period during which the case had been pending cannot be counted for arriving at the prescriptive period. In
other words, the running of the period of prescription in this particular case was interrupted on August 6, 1953, when
the case in the CFI was filed and began to run again on August 30, 1958, when the same Court had dismissed the
case. As the complaint was filed with the CIR on December 5, 1958, the action has not yet prescribed.

This case obviously appears to have made conflicting statements since it proceeds upon a certain premise but arrives at a different
conclusion. Hence, we cannot agree that the statements therein sufficiently support the thesis of petitioner.

The case of Fulton Insurance Company is not clear either on the matter of the interruption of the prescriptive period where an action is
filed in court. It was there held that:

There are two school(s) of thought as to the legal effect of the cessation of the interruption by an intervening action
upon the period of prescription. There is the view expressed and perhaps, not without reasons, that the full period of
prescription should start to run anew, reckoned from the date of the cessation of the interruption. The contrary view
is, that the cessation of the interruption merely tolls the running of the remaining period of prescription, deducting
from the full period thereof the time that has already elapsed prior to the filing of the intervening action. Nevertheless,
all discussion on this point is academic; considered in the light of either view, We find that the second action is not
barred.

In the aforesaid case, the defendant therein moved for the dismissal of the second case alleging that the filing of the first case neither
tolled nor interrupted the running of the prescriptive period. This Court ruled that the filing of the first action interrupted the running of
the period, and then declared that at any rate, the second action was filed within the balance of the period remaining. It concluded that
the issue of whether the filing of the action merely tolled or it actually interrupted the running of the prescriptive period was moot and
academic because, in either case, the second action was still filed within the prescriptive period. Consequently, the Fulton case
cannot also sustain the thesis of petitioner.

On the foregoing considerations, we are convinced and so hold that the correct interpretations of Article 1155 of the Civil Code are
reflected in and furnished by the doctrinal pronouncements in Overseas Bank of Manila and Philippine National Railways Company, not
only because they are later in point of time but because the issue is squarely resolved in a decisive and logical manner therein.
Petitioner's submission would result in a bifurcated interpretation of Article 1155, aside from the irrational conclusion that a judicial
action itself cannot produce the same result on the prescriptive period as a mere extrajudicial demand or an acknowledgment of the
debt.

Accordingly, petitioner having failed to adduce any cogent reason or substantial argument to warrant a reconsideration of our resolution
of March 24, 1993, the present motion is hereby DENIED with FINALITY.

SO ORDERED.
G.R. No. L-24837           June 27, 1968

JULIAN C. SINGSON and RAMONA DEL CASTILLO, plaintiffs,

vs.
BANK OF THE PHILIPPINE ISLANDS and SANTIAGO FREIXAS, in his capacity as President of the said Bank, defendants.

Gil B. Galang for plaintiffs.

Aviado and Aranda for defendants.

CONCEPCION, C.J.:

Appeal by plaintiffs, Julian Singson and his wife, Ramona del Castillo, from a decision of the Court of First Instance of Manila
dismissing their complaint against defendants herein, the Bank of the Philippine Islands and Santiago Freixas.

It appears that Singson, was one of the defendants in civil case No. 23906 of the Court of First Instance, Manila, in which judgment had
been rendered sentencing him and his co-defendants therein, namely, Celso Lobregat and Villa-Abrille & Co., to pay the sum of
P105,539.56 to the plaintiff therein, Philippine Milling Co. Singson and Lobregat had seasonably appealed from said judgment, but not
Villa-Abrille & Co., as against which said judgment, accordingly, became final and executory. In due course, a writ of garnishment was
subsequently served upon the Bank of the Philippine Islands — in which the Singsons had a current account — insofar as Villa-Abrille's
credits against the Bank were concerned. What happened thereafter is set forth in the decision appealed from, from which we quote:

Upon receipt of the said Writ of Garnishment, a clerk of the bank in charge of all matters of execution and garnishment, upon
reading the name of the plaintiff herein in the title of the Writ of Garnishment as a party defendants, without further reading the
body of the said garnishment and informing himself that said garnishment was merely intended for the deposits of defendant
Villa-Abrille & Co., Valentin Teus, Fernando F. de Villa-Abrille and Joaquin Bona, prepared a letter for the signature of the
President of the Bank informing the plaintiff Julian C. Singson of the garnishment of his deposits by the plaintiff in that case.
Another letter was also prepared and signed by the said President of the Bank for the Special Sheriff dated April 17, 1963.

Subsequently, two checks issued by the plaintiff Julian C. Singson, one for the amount of P383 in favor of B. M. Glass Service
dated April 16, 1963 and bearing No. C-424852, and check No. C-394996 for the amount of P100 in favor of the Lega
Corporation, and drawn against the said Bank, were deposited by the said drawers with the said bank. Believing that the
plaintiff Singson, the drawer of the check, had no more control over the balance of his deposits in the said bank, the checks
were dishonored and were refused payment by the said bank. After the first check was returned by the bank to the B. M. Glass
Service, the latter wrote plaintiff Julian C. Singson a letter, dated April 19, 1963, advising him that his check for P383.00
bearing No. C-424852 was not honored by the bank for the reason that his account therein had already been garnished. The
said B. M. Glass Service further stated in the said letter that they were constrained to close his credit account with them. In
view thereof, plaintiff Julian C. Singson wrote the defendant bank a letter on April 19, 1963, claiming that his name was not
included in the Writ of Execution and Notice of Garnishment, which was served upon the bank. The defendant President
Santiago Freixas of the said bank took steps to verify this information and after having confirmed the same, apologized to the
plaintiff Julian C. Singson and wrote him a letter dated April 22, 1963, requesting him to disregard their letter of April 17, 1963,
and that the action of garnishment from his account had already been removed. A similar letter was written by the said official
of the bank on April 22, 1963 to the Special Sheriff informing him that his letter dated April 17, 1963 to the said Special Sheriff
was considered cancelled and that they had already removed the Notice of Garnishment from plaintiff Singson's account.
Thus, the defendants lost no time to rectify the mistake that had been inadvertently committed, resulting in the temporary
freezing of the account of the plaintiff with the said bank for a short time.

xxx     xxx     xxx

On May 8, 1963, the Singsong commenced the present action against the Bank and its president, Santiago Freixas, for damages1 in
consequence of said illegal freezing of plaintiffs' account.1äwphï1.ñët

After appropriate proceedings, the Court of First Instance of Manila rendered judgment dismissing the complaint upon the ground that
plaintiffs cannot recover from the defendants upon the basis of a quasi-delict, because the relation between the parties is contractual in
nature; because this case does not fall under Article 2219 of our Civil Code, upon which plaintiffs rely; and because plaintiffs have not
established the amount of damages allegedly sustained by them.

The lower court held that plaintiffs' claim for damages cannot be based upon a tort or quasi-delict, their relation with the defendants
being contractual in nature. We have repeatedly held, however, that the existence of a contract between the parties does not bar the
commission of a tort by the one against the order and the consequent recovery of damages therefor.2 Indeed, this view has been, in
effect, reiterated in a comparatively recent case. Thus, in Air France vs. Carrascoso,3 involving an airplane passenger who, despite his
first-class ticket, had been illegally ousted from his first-class accommodation and compelled to take a seat in the tourist compartment,
was held entitled to recover damages from the air-carrier, upon the ground of tort on the latter's part, for, although the relation between
a passenger and a carrier is "contractual both in origin and nature ... the act that breaks the contract may also be a tort".
In view, however, of the facts obtaining in the case at bar, and considering, particularly, the circumstance, that the wrong done to the
plaintiff was remedied as soon as the President of the bank realized the mistake he and his subordinate employee had committed, the
Court finds that an award of nominal damages — the amount of which need not be proven4 — in the sum of P1,000, in addition to
attorney's fees in the sum of P500, would suffice to vindicate plaintiff's rights.5

WHEREFORE, the judgment appealed from is hereby reversed, and another one shall be entered sentencing the defendant Bank of
the Philippine Islands to pay to the plaintiffs said sums of P1,000, as nominal damages, and P500, as attorney's fees, apart from the
costs. It is so ordered.
G.R. No. L-48006             July 8, 1942

FAUSTO BARREDO, petitioner,
vs.
SEVERINO GARCIA and TIMOTEA ALMARIO, respondents.

Celedonio P. Gloria and Antonio Barredo for petitioner.

Jose G. Advincula for respondents.

BOCOBO, J.:

This case comes up from the Court of Appeals which held the petitioner herein, Fausto Barredo, liable in damages for the death of
Faustino Garcia caused by the negligence of Pedro Fontanilla, a taxi driver employed by said Fausto Barredo.

At about half past one in the morning of May 3, 1936, on the road between Malabon and Navotas, Province of Rizal, there was a head-
on collision between a taxi of the Malate Taxicab driven by Pedro Fontanilla and a carretela guided by Pedro Dimapalis. The carretela
was overturned, and one of its passengers, 16-year-old boy Faustino Garcia, suffered injuries from which he died two days later. A
criminal action was filed against Fontanilla in the Court of First Instance of Rizal, and he was convicted and sentenced to an
indeterminate sentence of one year and one day to two years of prision correccional. The court in the criminal case granted the petition
that the right to bring a separate civil action be reserved. The Court of Appeals affirmed the sentence of the lower court in the criminal
case. Severino Garcia and Timotea Almario, parents of the deceased on March 7, 1939, brought an action in the Court of First Instance
of Manila against Fausto Barredo as the sole proprietor of the Malate Taxicab and employer of Pedro Fontanilla. On July 8, 1939, the
Court of First Instance of Manila awarded damages in favor of the plaintiffs for P2,000 plus legal interest from the date of the complaint.
This decision was modified by the Court of Appeals by reducing the damages to P1,000 with legal interest from the time the action was
instituted. It is undisputed that Fontanilla 's negligence was the cause of the mishap, as he was driving on the wrong side of the road,
and at high speed. As to Barredo's responsibility, the Court of Appeals found:

... It is admitted that defendant is Fontanilla's employer. There is proof that he exercised the diligence of a good father of a
family to prevent damage. (See p. 22, appellant's brief.) In fact it is shown he was careless in employing Fontanilla who had
been caught several times for violation of the Automobile Law and speeding (Exhibit A) — violation which appeared in the
records of the Bureau of Public Works available to be public and to himself. Therefore, he must indemnify plaintiffs under the
provisions of article 1903 of the Civil Code.

The main theory of the defense is that the liability of Fausto Barredo is governed by the Revised Penal Code; hence, his liability is only
subsidiary, and as there has been no civil action against Pedro Fontanilla, the person criminally liable, Barredo cannot be held
responsible in the case. The petitioner's brief states on page 10:

... The Court of Appeals holds that the petitioner is being sued for his failure to exercise all the diligence of a good father of a
family in the selection and supervision of Pedro Fontanilla to prevent damages suffered by the respondents. In other words,
The Court of Appeals insists on applying in the case article 1903 of the Civil Code. Article 1903 of the Civil Code is found in
Chapter II, Title 16, Book IV of the Civil Code. This fact makes said article to a civil liability arising from a crime as in the case
at bar simply because Chapter II of Title 16 of Book IV of the Civil Code, in the precise words of article 1903 of the Civil Code
itself, is applicable only to "those (obligations) arising from wrongful or negligent acts or commission not punishable by law.

The gist of the decision of the Court of Appeals is expressed thus:

... We cannot agree to the defendant's contention. The liability sought to be imposed upon him in this action is not a civil
obligation arising from a felony or a misdemeanor (the crime of Pedro Fontanilla,), but an obligation imposed in article 1903 of
the Civil Code by reason of his negligence in the selection or supervision of his servant or employee.

The pivotal question in this case is whether the plaintiffs may bring this separate civil action against Fausto Barredo, thus making him
primarily and directly, responsible under article 1903 of the Civil Code as an employer of Pedro Fontanilla. The defendant maintains
that Fontanilla's negligence being punishable by the Penal Code, his (defendant's) liability as an employer is only subsidiary, according
to said Penal code, but Fontanilla has not been sued in a civil action and his property has not been exhausted. To decide the main
issue, we must cut through the tangle that has, in the minds of many confused and jumbled together delitos and cuasi delitos, or crimes
under the Penal Code and fault or negligence under articles 1902-1910 of the Civil Code. This should be done, because justice may be
lost in a labyrinth, unless principles and remedies are distinctly envisaged. Fortunately, we are aided in our inquiry by the luminous
presentation of the perplexing subject by renown jurists and we are likewise guided by the decisions of this Court in previous cases as
well as by the solemn clarity of the consideration in several sentences of the Supreme Tribunal of Spain.

Authorities support the proposition that a quasi-delict or "culpa aquiliana " is a separate legal institution under the Civil Code with a
substantivity all its own, and individuality that is entirely apart and independent from delict or crime. Upon this principle and on the
wording and spirit article 1903 of the Civil Code, the primary and direct responsibility of employers may be safely anchored.
The pertinent provisions of the Civil Code and Revised Penal Code are as follows:

CIVIL CODE

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

xxx     xxx     xxx

ART. 1092. Civil obligations arising from felonies or misdemeanors shall be governed by the provisions of the Penal Code.

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

xxx     xxx     xxx

ART 1902. Any person who by an act or omission causes damage to another by his fault or negligence shall be liable for the
damage so done.

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

The father and in, case of his death or incapacity, the mother, are liable for any damages caused by the minor children who
live with them.

Guardians are liable for damages done by minors or incapacitated persons subject to their authority and living with them.

Owners or directors of an establishment or business are equally liable for any damages caused by their employees while
engaged in the branch of the service in which employed, or on occasion of the performance of their duties.

The State is subject to the same liability when it acts through a special agent, but not if the damage shall have been caused by
the official upon whom properly devolved the duty of doing the act performed, in which case the provisions of the next
preceding article shall be applicable.

Finally, teachers or directors of arts trades are liable for any damages caused by their pupils or apprentices while they are
under their custody.

The liability imposed by this article shall cease in case the persons mentioned therein prove that they are exercised all the
diligence of a good father of a family to prevent the damage.

ART. 1904. Any person who pays for damage caused by his employees may recover from the latter what he may have paid.

REVISED PENAL CODE

ART. 100. Civil liability of a person guilty of felony. — Every person criminally liable for a felony is also civilly liable.

ART. 101. Rules regarding civil liability in certain cases.  — The exemption from criminal liability established in subdivisions 1,
2, 3, 5, and 6 of article 12 and in subdivision 4 of article 11 of this Code does not include exemption from civil liability, which
shall be enforced to the following rules:

First. In cases of subdivision, 1, 2 and 3 of article 12 the civil liability for acts committed by any imbecile or insane person, and
by a person under nine years of age, or by one over nine but under fifteen years of age, who has acted without discernment
shall devolve upon those having such person under their legal authority or control, unless it appears that there was no fault or
negligence on their part.

Should there be no person having such insane, imbecile or minor under his authority, legal guardianship, or control, or if such
person be insolvent, said insane, imbecile, or minor shall respond with their own property, excepting property exempt from
execution, in accordance with the civil law.

Second. In cases falling within subdivision 4 of article 11, the person for whose benefit the harm has been prevented shall be
civilly liable in proportion to the benefit which they may have received.
The courts shall determine, in their sound discretion, the proportionate amount for which each one shall be liable.

When the respective shares can not be equitably determined, even approximately, or when the liability also attaches to the
Government, or to the majority of the inhabitants of the town, and, in all events, whenever the damage has been caused with the
consent of the authorities or their agents, indemnification shall be made in the manner prescribed by special laws or regulations.

Third. In cases falling within subdivisions 5 and 6 of article 12, the persons using violence or causing the fear shall be primarily liable
and secondarily, or, if there be no such persons, those doing the act shall be liable, saving always to the latter that part of their property
exempt from execution.

ART. 102. Subsidiary civil liability of innkeepers, tavern keepers and proprietors of establishment. — In default of persons
criminally liable, innkeepers, tavern keepers, and any other persons or corporation shall be civilly liable for crimes committed in
their establishments, in all cases where a violation of municipal ordinances or some general or special police regulation shall
have been committed by them or their employees.

Innkeepers are also subsidiarily liable for the restitution of goods taken by robbery or theft within their houses lodging therein,
or the person, or for the payment of the value thereof, provided that such guests shall have notified in advance the innkeeper
himself, or the person representing him, of the deposit of such goods within the inn; and shall furthermore have followed the
directions which such innkeeper or his representative may have given them with respect to the care of and vigilance over such
goods. No liability shall attach in case of robbery with violence against or intimidation against or intimidation of persons unless
committed by the innkeeper's employees.

ART. 103. Subsidiary civil liability of other persons. — The subsidiary liability established in the next preceding article shall
also apply to employers, teachers, persons, and corporations engaged in any kind of industry for felonies committed by their
servants, pupils, workmen, apprentices, or employees in the discharge of their duties.

xxx     xxx     xxx

ART. 365. Imprudence and negligence. — Any person who, by reckless imprudence, shall commit any act which, had it been
intentional, would constitute a grave felony, shall suffer the penalty of arresto mayor in its maximum period to prision
correccional in its minimum period; if it would have constituted a less grave felony, the penalty of arresto mayor in its minimum
and medium periods shall be imposed.

Any person who, by simple imprudence or negligence, shall commit an act which would otherwise constitute a grave felony,
shall suffer the penalty of arresto mayor in its medium and maximum periods; if it would have constituted a less serious felony,
the penalty of arresto mayor in its minimum period shall be imposed."

It will thus be seen that while the terms of articles 1902 of the Civil Code seem to be broad enough to cover the driver's negligence in
the instant case, nevertheless article 1093 limits cuasi-delitos to acts or omissions "not punishable by law." But inasmuch as article 365
of the Revised Penal Code punishes not only reckless but even simple imprudence or negligence, the fault or negligence under article
1902 of the Civil Code has apparently been crowded out. It is this overlapping that makes the "confusion worse confounded." However,
a closer study shows that such a concurrence of scope in regard to negligent acts does not destroy the distinction between the civil
liability arising from a crime and the responsibility for cuasi-delitos or culpa extra-contractual. The same negligent act causing damages
may produce civil liability arising from a crime under article 100 of the Revised Penal Code, or create an action for cuasi-delito or culpa
extra-contractual under articles 1902-1910 of the Civil Code.

The individuality of cuasi-delito or culpa extra-contractual looms clear and unmistakable. This legal institution is of ancient lineage, one
of its early ancestors being the Lex Aquilia in the Roman Law. In fact, in Spanish legal terminology, this responsibility is often referred to
as culpa aquiliana. The Partidas also contributed to the genealogy of the present fault or negligence under the Civil Code; for instance,
Law 6, Title 15, of Partida 7, says: "Tenudo es de fazer emienda, porque, como quier que el non fizo a sabiendas en daño al otro, pero
acaescio por su culpa."

The distinctive nature of cuasi-delitos survives in the Civil Code. According to article 1089, one of the five sources of obligations is this
legal institution of cuasi-delito or culpa extra-contractual: "los actos . . . en que intervenga cualquier genero de culpa o negligencia."
Then article 1093 provides that this kind of obligation shall be governed by Chapter II of Title XVI of Book IV, meaning articles 1902-
0910. This portion of the Civil Code is exclusively devoted to the legal institution of culpa aquiliana.

Some of the differences between crimes under the Penal Code and the culpa aquiliana or cuasi-delito under the Civil Code are:

1. That crimes affect the public interest, while cuasi-delitos are only of private concern.

2. That, consequently, the Penal Code punishes or corrects the criminal act, while the Civil Code, by means of indemnification, merely
repairs the damage.
3. That delicts are not as broad as quasi-delicts, because the former are punished only if there is a penal law clearly covering them,
while the latter, cuasi-delitos, include all acts in which "any king of fault or negligence intervenes." However, it should be noted that not
all violations of the penal law produce civil responsibility, such as begging in contravention of ordinances, violation of the game laws,
infraction of the rules of traffic when nobody is hurt. (See Colin and Capitant, "Curso Elemental de Derecho Civil," Vol. 3, p. 728.)

Let us now ascertain what some jurists say on the separate existence of quasi-delicts and the employer's primary and direct liability
under article 1903 of the Civil Code.

Dorado Montero in his essay on "Responsibilidad" in the "Enciclopedia Juridica Española" (Vol. XXVII, p. 414) says:

El concepto juridico de la responsabilidad civil abarca diversos aspectos y comprende a diferentes personas. Asi, existe una
responsabilidad civil propiamente dicha, que en ningun casl lleva aparejada responsabilidad criminal alguna, y otra que es
consecuencia indeclinable de la penal que nace de todo delito o falta."

The juridical concept of civil responsibility has various aspects and comprises different persons. Thus, there is a civil
responsibility, properly speaking, which in no case carries with it any criminal responsibility, and another which is a necessary
consequence of the penal liability as a result of every felony or misdemeanor."

Maura, an outstanding authority, was consulted on the following case: There had been a collision between two trains belonging
respectively to the Ferrocarril Cantabrico and the Ferrocarril del Norte. An employee of the latter had been prosecuted in a criminal
case, in which the company had been made a party as subsidiarily responsible in civil damages. The employee had been acquitted in
the criminal case, and the employer, the Ferrocarril del Norte, had also been exonerated. The question asked was whether the
Ferrocarril Cantabrico could still bring a civil action for damages against the Ferrocarril del Norte. Maura's opinion was in the
affirmative, stating in part (Maura, Dictamenes, Vol. 6, pp. 511-513):

Quedando las cosas asi, a proposito de la realidad pura y neta de los hechos, todavia menos parece sostenible que
exista cosa juzgada acerca de la obligacion civil de indemnizar los quebrantos y menoscabos inferidos por el choque de los
trenes. El titulo en que se funda la accion para demandar el resarcimiento, no puede confundirse con las responsabilidades
civiles nacidas de delito, siquiera exista en este, sea el cual sea, una culpa rodeada de notas agravatorias que motivan
sanciones penales, mas o menos severas. La lesion causada por delito o falta en los derechos civiles, requiere restituciones,
reparaciones o indemnizaciones, que cual la pena misma atañen al orden publico; por tal motivo vienen encomendadas, de
ordinario, al Ministerio Fiscal; y claro es que si por esta via se enmiendan los quebrantos y menoscabos, el agraviado excusa
procurar el ya conseguido desagravio; pero esta eventual coincidencia de los efectos, no borra la diversidad originaria de las
acciones civiles para pedir indemnizacion.

Estas, para el caso actual (prescindiendo de culpas contractuales, que no vendrian a cuento y que tiene otro regimen),
dimanan, segun el articulo 1902 del Codigo Civil, de toda accion u omision, causante de daños o perjuicios, en que intervenga
culpa o negligencia. Es trivial que acciones semejantes son ejercitadas ante los Tribunales de lo civil cotidianamente, sin que
la Justicia punitiva tenga que mezclarse en los asuntos. Los articulos 18 al 21 y 121 al 128 del Codigo Penal, atentos al
espiritu y a los fines sociales y politicos del mismo, desenvuelven y ordenan la materia de responsabilidades civiles nacidas
de delito, en terminos separados del regimen por ley comun de la culpa que se denomina aquiliana, por alusion a
precedentes legislativos del Corpus Juris. Seria intempestivo un paralelo entre aquellas ordenaciones, y la de la obligacion de
indemnizar a titulo de culpa civil; pero viene al caso y es necesaria una de las diferenciaciones que en el tal paralelo se
notarian.

Los articulos 20 y 21 del Codigo Penal, despues de distribuir a su modo las responsabilidades civiles, entre los que sean por
diversos conceptos culpables del delito o falta, las hacen extensivas a las empresas y los establecimientos al servicio de los
cuales estan los delincuentes; pero con caracter subsidiario, o sea, segun el texto literal, en defecto de los que sean
responsables criminalmente. No coincide en ello el Codigo Civil, cuyo articulo 1903, dice; La obligacion que impone el articulo
anterior es exigible, no solo por los actos y omisiones propios, sino por los de aquellas personas de quienes se debe
responder; personas en la enumeracion de las cuales figuran los dependientes y empleados de los establecimientos o
empresas, sea por actos del servicio, sea con ocasion de sus funciones. Por esto acontece, y se observa en la jurisprudencia,
que las empresas, despues de intervenir en las causas criminales con el caracter subsidiario de su responsabilidad civil por
razon del delito, son demandadas y condenadas directa y aisladamente, cuando se trata de la obligacion, ante los tribunales
civiles.

Siendo como se ve, diverso el titulo de esta obligacion, y formando verdadero postulado de nuestro regimen judicial la
separacion entre justicia punitiva y tribunales de lo civil, de suerte que tienen unos y otros normas de fondo en distintos
cuerpos legales, y diferentes modos de proceder, habiendose, por añadidura, abstenido de asistir al juicio criminal la
Compañia del Ferrocarril Cantabrico, que se reservo ejercitar sus acciones, parece innegable que la de indemnizacion por los
daños y perjuicios que le irrogo el choque, no estuvo sub judice ante el Tribunal del Jurado, ni fue sentenciada, sino que
permanecio intacta, al pronunciarse el fallo de 21 de marzo. Aun cuando el veredicto no hubiese sido de inculpabilidad,
mostrose mas arriba, que tal accion quedaba legitimamente reservada para despues del proceso; pero al declararse que no
existio delito, ni responsabilidad dimanada de delito, materia unica sobre que tenian jurisdiccion aquellos juzgadores, se
redobla el motivo para la obligacion civil ex lege, y se patentiza mas y mas que la accion para pedir su cumplimiento
permanece incolume, extraña a la cosa juzgada.
 As things are, apropos of the reality pure and simple of the facts, it seems less tenable that there should be res judicata with
regard to the civil obligation for damages on account of the losses caused by the collision of the trains. The title upon which
the action for reparation is based cannot be confused with the civil responsibilities born of a crime, because there exists in the
latter, whatever each nature, a culpa surrounded with aggravating aspects which give rise to penal measures that are more or
less severe. The injury caused by a felony or misdemeanor upon civil rights requires restitutions, reparations, or
indemnifications which, like the penalty itself, affect public order; for this reason, they are ordinarily entrusted to the office of
the prosecuting attorney; and it is clear that if by this means the losses and damages are repaired, the injured party no longer
desires to seek another relief; but this coincidence of effects does not eliminate the peculiar nature of civil actions to ask for
indemnity.

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

Articles 20 and 21 of the Penal Code, after distriburing in their own way the civil responsibilities among those who, for different
reasons, are guilty of felony or misdemeanor, make such civil responsibilities applicable to enterprises and establishments for
which the guilty parties render service, but with subsidiary character, that is to say, according to the wording of the Penal
Code, in default of those who are criminally responsible. In this regard, the Civil Code does not coincide because article 1903
says: "The obligation imposed by the next preceding article is demandable, not only for personal acts and omissions, but also
for those of persons for whom another is responsible." Among the persons enumerated are the subordinates and employees
of establishments or enterprises, either for acts during their service or on the occasion of their functions. It is for this reason
that it happens, and it is so observed in judicial decisions, that the companies or enterprises, after taking part in the criminal
cases because of their subsidiary civil responsibility by reason of the crime, are sued and
sentenced directly and separately with regard to the obligation, before the civil courts.

Seeing that the title of this obligation is different, and the separation between punitive justice and the civil courts being a true
postulate of our judicial system, so that they have different fundamental norms in different codes, as well as different modes of
procedure, and inasmuch as the Compaña del Ferrocarril Cantabrico has abstained from taking part in the criminal case and
has reserved the right to exercise its actions, it seems undeniable that the action for indemnification for the losses and
damages caused to it by the collision was not sub judice before the Tribunal del Jurado, nor was it the subject of a sentence,
but it remained intact when the decision of March 21 was rendered. Even if the verdict had not been that of acquittal, it has
already been shown that such action had been legitimately reserved till after the criminal prosecution; but because of the
declaration of the non-existence of the felony and the non-existence of the responsibility arising from the crime, which was
the sole subject matter upon which the Tribunal del Jurado had jurisdiction, there is greater reason for the civil obligation ex
lege, and it becomes clearer that the action for its enforcement remain intact and is not res judicata.

Laurent, a jurist who has written a monumental work on the French Civil Code, on which the Spanish Civil Code is largely based and
whose provisions on cuasi-delito or culpa extra-contractual are similar to those of the Spanish Civil Code, says, referring to article 1384
of the French Civil Code which corresponds to article 1903, Spanish Civil Code:

The action can be brought directly against the person responsible (for another), without including the author of the act. The
action against the principal is accessory in the sense that it implies the existence of a prejudicial act committed by the
employee, but it is not subsidiary in the sense that it can not be instituted till after the judgment against the author of the act or
at least, that it is subsidiary to the principal action; the action for responsibility (of the employer) is in itself a principal action.
(Laurent, Principles of French Civil Law, Spanish translation, Vol. 20, pp. 734-735.)

Amandi, in his "Cuestionario del Codigo Civil Reformado" (Vol. 4, pp. 429, 430), declares that the responsibility of the employer is
principal and not subsidiary. He writes:

Cuestion 1. La responsabilidad declarada en el articulo 1903 por las acciones u omisiones de aquellas personas por las que
se debe responder, es subsidiaria? es principal? Para contestar a esta pregunta es necesario saber, en primer lugar, en que
se funda el precepto legal. Es que realmente se impone una responsabilidad por una falta ajena? Asi parece a primera vista;
pero semejante afirmacion seria contraria a la justicia y a la maxima universal, segun la que las faltas son personales, y cada
uno responde de aquellas que le son imputables. La responsabilidad de que tratamos se impone con ocasion de un delito o
culpa, pero no por causa de ellos, sino por causa del causi delito, esto es, de la imprudencia o de la negligencia del padre, del
tutor, del dueño o director del establecimiento, del maestro, etc. Cuando cualquiera de las personas que enumera el articulo
citado (menores de edad, incapacitados, dependientes, aprendices) causan un daño, la ley presume que el padre, el tutor, el
maestro, etc., han cometido una falta de negligencia para prevenir o evitar el daño. Esta falta es la que la ley castiga. No hay,
pues, responsabilidad por un hecho ajeno, sino en la apariencia; en realidad la responsabilidad se exige por un hecho propio.
La idea de que esa responsabilidad sea subsidiaria es, por lo tanto, completamente inadmisible.
 Question No. 1. Is the responsibility declared in article 1903 for the acts or omissions of those persons for who one is
responsible, subsidiary or principal? In order to answer this question it is necessary to know, in the first place, on what the
legal provision is based. Is it true that there is a responsibility for the fault of another person? It seems so at first sight; but such
assertion would be contrary to justice and to the universal maxim that all faults are personal, and that everyone is liable for
those faults that can be imputed to him. The responsibility in question is imposed on the occasion of a crime or fault, but not
because of the same, but because of the cuasi-delito, that is to say, the imprudence or negligence of the father, guardian,
proprietor or manager of the establishment, of the teacher, etc. Whenever anyone of the persons enumerated in the article
referred to (minors, incapacitated persons, employees, apprentices) causes any damage, the law presumes that the father,
guardian, teacher, etc. have committed an act of negligence in not preventing or avoiding the damage. It is this fault that is
condemned by the law. It is, therefore, only apparent that there is a responsibility for the act of another; in reality the
responsibility exacted is for one's own act. The idea that such responsibility is subsidiary is, therefore, completely inadmissible.

Oyuelos, in his "Digesto: Principios, Doctrina y Jurisprudencia, Referentes al Codigo Civil Español," says in Vol. VII, p. 743:

Es decir, no responde de hechos ajenos, porque se responde solo de su propia culpa, doctrina del articulo 1902; mas por
excepcion, se responde de la ajena respecto de aquellas personas con las que media algun nexo o vinculo, que motiva o
razona la responsabilidad. Esta responsabilidad, es directa o es subsidiaria? En el orden penal, el Codigo de esta clase
distingue entre menores e incapacitados y los demas, declarando directa la primera (articulo 19) y subsidiaria la segunda
(articulos 20 y 21); pero en el orden civil, en el caso del articulo 1903, ha de entenderse directa, por el tenor del articulo que
impone la responsabilidad precisamente "por los actos de aquellas personas de quienes se deba responder."

That is to say, one is not responsible for the acts of others, because one is liable only for his own faults, this being the doctrine
of article 1902; but, by exception, one is liable for the acts of those persons with whom there is a bond or tie which gives rise to
the responsibility. Is this responsibility direct or subsidiary? In the order of the penal law, the Penal Code distinguishes
between minors and incapacitated persons on the one hand, and other persons on the other, declaring that the responsibility
for the former is direct (article 19), and for the latter, subsidiary (articles 20 and 21); but in the scheme of the civil law, in the
case of article 1903, the responsibility should be understood as direct, according to the tenor of that articles, for precisely it
imposes responsibility "for the acts of those persons for whom one should be responsible."

Coming now to the sentences of the Supreme Tribunal of Spain, that court has upheld the principles above set forth: that a quasi-
delict or culpa extra-contractual is a separate and distinct legal institution, independent from the civil responsibility arising from criminal
liability, and that an employer is, under article 1903 of the Civil Code, primarily and directly responsible for the negligent acts of his
employee.

One of the most important of those Spanish decisions is that of October 21, 1910. In that case, Ramon Lafuente died as the result of
having been run over by a street car owned by the "compañia Electric Madrileña de Traccion." The conductor was prosecuted in a
criminal case but he was acquitted. Thereupon, the widow filed a civil action against the street car company, paying for damages in the
amount of 15,000 pesetas. The lower court awarded damages; so the company appealed to the Supreme Tribunal, alleging violation of
articles 1902 and 1903 of the Civil Code because by final judgment the non-existence of fault or negligence had been declared. The
Supreme Court of Spain dismissed the appeal, saying:

Considerando que el primer motivo del recurso se funda en el equivocado supuesto de que el Tribunal a quo, al condonar a la
compañia Electrica Madrileña al pago del daño causado con la muerte de Ramon La fuente Izquierdo, desconoce el valor y
efectos juridicos de la sentencia absolutoria deictada en la causa criminal que se siguio por el mismo hecho, cuando es lo
cierto que de este han conocido las dos jurisdicciones bajo diferentes as pectos, y como la de lo criminal declrao dentro de los
limites de su competencia que el hecho de que se trata no era constitutivo de delito por no haber mediado descuido o
negligencia graves, lo que no excluye, siendo este el unico fundamento del fallo absolutorio, el concurso de la culpa o
negligencia no califacadas, fuente de obligaciones civiles segun el articulo 1902 del Codigo, y que alcanzan, segun el 1903,
netre otras perosnas, a los Directores de establecimientos o empresas por los daños causados por sus dependientes en
determinadas condiciones, es manifesto que la de lo civil, al conocer del mismo hehco baho este ultimo aspecto y al condenar
a la compañia recurrente a la indemnizacion del daño causado por uno de sus empleados, lejos de infringer los mencionados
textos, en relacion con el articulo 116 de la Ley de Enjuciamiento Criminal, se ha atenido estrictamente a ellos, sin invadir
atribuciones ajenas a su jurisdiccion propia, ni contrariar en lo mas minimo el fallo recaido en la causa.

Considering that the first ground of the appeal is based on the mistaken supposition that the trial court, in sentencing
the Compañia Madrileña to the payment of the damage caused by the death of Ramon Lafuente Izquierdo, disregards the
value and juridical effects of the sentence of acquittal rendered in the criminal case instituted on account of the same act,
when it is a fact that the two jurisdictions had taken cognizance of the same act in its different aspects, and as the criminal
jurisdiction declared within the limits of its authority that the act in question did not constitute a felony because there was no
grave carelessness or negligence, and this being the only basis of acquittal, it does no exclude the co-existence of fault or
negligence which is not qualified, and is a source of civil obligations according to article 1902 of the Civil Code, affecting, in
accordance with article 1903, among other persons, the managers of establishments or enterprises by reason of the damages
caused by employees under certain conditions, it is manifest that the civil jurisdiccion in taking cognizance of the same act in
this latter aspect and in ordering the company, appellant herein, to pay an indemnity for the damage caused by one of its
employees, far from violating said legal provisions, in relation with article 116 of the Law of Criminal Procedure, strictly
followed the same, without invading attributes which are beyond its own jurisdiction, and without in any way contradicting the
decision in that cause. (Emphasis supplied.)
It will be noted, as to the case just cited:

First. That the conductor was not sued in a civil case, either separately or with the street car company. This is precisely what happens
in the present case: the driver, Fontanilla, has not been sued in a civil action, either alone or with his employer.

Second. That the conductor had been acquitted of grave criminal negligence, but the Supreme Tribunal of Spain said that this did not
exclude the co-existence of fault or negligence, which is not qualified, on the part of the conductor, under article 1902 of the Civil Code.
In the present case, the taxi driver was found guilty of criminal negligence, so that if he had even sued for his civil responsibility arising
from the crime, he would have been held primarily liable for civil damages, and Barredo would have been held subsidiarily liable for the
same. But the plaintiffs are directly suing Barredo, on his primary responsibility because of his own presumed negligence — which he
did not overcome — under article 1903. Thus, there were two liabilities of Barredo: first, the subsidiary one because of the civil liability
of the taxi driver arising from the latter's criminal negligence; and, second, Barredo's primary liability as an employer under article 1903.
The plaintiffs were free to choose which course to take, and they preferred the second remedy. In so doing, they were acting within their
rights. It might be observed in passing, that the plaintiff choose the more expeditious and effective method of relief, because Fontanilla
was either in prison, or had just been released, and besides, he was probably without property which might be seized in enforcing any
judgment against him for damages.

Third. That inasmuch as in the above sentence of October 21, 1910, the employer was held liable civilly, notwithstanding the acquittal
of the employee (the conductor) in a previous criminal case, with greater reason should Barredo, the employer in the case at bar, be
held liable for damages in a civil suit filed against him because his taxi driver had been convicted. The degree of negligence of the
conductor in the Spanish case cited was less than that of the taxi driver, Fontanilla, because the former was acquitted in the previous
criminal case while the latter was found guilty of criminal negligence and was sentenced to an indeterminate sentence of one year and
one day to two years of  prision correccional.

(See also Sentence of February 19, 1902, which is similar to the one above quoted.)

In the Sentence of the Supreme Court of Spain, dated February 14, 1919, an action was brought against a railroad company for
damages because the station agent, employed by the company, had unjustly and fraudulently, refused to deliver certain articles
consigned to the plaintiff. The Supreme Court of Spain held that this action was properly under article 1902 of the Civil Code, the court
saying:

Considerando que la sentencia discutida reconoce, en virtud de los hechos que consigna con relacion a las pruebas del
pleito: 1.º, que las expediciones facturadas por la compañia ferroviaria a la consignacion del actor de las vasijas vacias que en
su demanda relacionan tenian como fin el que este las devolviera a sus remitentes con vinos y alcoholes; 2.º, que llegadas a
su destino tales mercanias no se quisieron entregar a dicho consignatario por el jefe de la estacion sin motivo justificado y con
intencion dolosa, y 3.º, que la falta de entrega de estas expediciones al tiempo de reclamarlas el demandante le originaron
daños y perjuicios en cantidad de bastante importancia como expendedor al por mayor que era de vinos y alcoholes por las
ganancias que dejo de obtener al verse privado de servir los pedidos que se le habian hecho por los remitentes en los
envases:

Considerando que sobre esta base hay necesidad de estimar los cuatro motivos que integran este recurso, porque la
demanda inicial del pleito a que se contrae no contiene accion que nazca del incumplimiento del contrato de transporte, toda
vez que no se funda en el retraso de la llegada de las mercancias ni de ningun otro vinculo contractual entre las partes
contendientes, careciendo, por tanto, de aplicacion el articulo 371 del Codigo de Comercio, en que principalmente descansa
el fallo recurrido, sino que se limita a pedir la reparaction de los daños y perjuicios producidos en el patrimonio del actor por la
injustificada y dolosa negativa del porteador a la entrega de las mercancias a su nombre consignadas, segun lo reconoce la
sentencia, y cuya responsabilidad esta claramente sancionada en el articulo 1902 del Codigo Civil, que obliga por el siguiente
a la Compañia demandada como ligada con el causante de aquellos por relaciones de caracter economico y de jurarquia
administrativa.

Considering that the sentence, in question recognizes, in virtue of the facts which it declares, in relation to the evidence in the
case: (1) that the invoice issued by the railroad company in favor of the plaintiff contemplated that the empty receptacles
referred to in the complaint should be returned to the consignors with wines and liquors; (2) that when the said merchandise
reached their destination, their delivery to the consignee was refused by the station agent without justification and
with fraudulent intent, and (3) that the lack of delivery of these goods when they were demanded by the plaintiff caused him
losses and damages of considerable importance, as he was a wholesale vendor of wines and liquors and he failed to realize
the profits when he was unable to fill the orders sent to him by the consignors of the receptacles:

Considering that upon this basis there is need of upholding the four assignments of error, as the original complaint did not
contain any cause of action arising from non-fulfillment of a contract of transportation, because the action was not based on
the delay of the goods nor on any contractual relation between the parties litigant and, therefore, article 371 of the Code of
Commerce, on which the decision appealed from is based, is not applicable; but it limits to asking for reparation for losses and
damages produced on the patrimony of the plaintiff on account of the unjustified and fraudulent refusal of the carrier to deliver
the goods consigned to the plaintiff as stated by the sentence, and the carrier's responsibility is clearly laid down in article
1902 of the Civil Code which binds, in virtue of the next article, the defendant company, because the latter is connected with
the person who caused the damage by relations of economic character and by administrative hierarchy. (Emphasis supplied.)
The above case is pertinent because it shows that the same act may come under both the Penal Code and the Civil Code. In that case,
the action of the agent was unjustified and fraudulent and therefore could have been the subject of a criminal action. And yet, it was
held to be also a proper subject of a civil action under article 1902 of the Civil Code. It is also to be noted that it was the employer and
not the employee who was being sued.

Let us now examine the cases previously decided by this Court.

In the leading case of Rakes vs. Atlantic Gulf and Pacific Co. (7 Phil., 359, 362-365 [year 1907]), the trial court awarded damages to the
plaintiff, a laborer of the defendant, because the latter had negligently failed to repair a tramway in consequence of which the rails slid
off while iron was being transported, and caught the plaintiff whose leg was broken. This Court held:

It is contended by the defendant, as its first defense to the action that the necessary conclusion from these collated laws is that
the remedy for injuries through negligence lies only in a criminal action in which the official criminally responsible must be
made primarily liable and his employer held only subsidiarily to him. According to this theory the plaintiff should have procured
the arrest of the representative of the company accountable for not repairing the track, and on his prosecution a suitable fine
should have been imposed, payable primarily by him and secondarily by his employer.

This reasoning misconceived the plan of the Spanish codes upon this subject. Article 1093 of the Civil Code makes obligations
arising from faults or negligence not punished by the law, subject to the provisions of Chapter II of Title XVI. Section 1902 of
that chapter reads:

"A person who by an act or omission causes damage to another when there is fault or negligence shall be obliged to
repair the damage so done.

"SEC. 1903. The obligation imposed by the preceeding article is demandable, not only for personal acts and
omissions, but also for those of the persons for whom they should be responsible.

"The father, and on his death or incapacity, the mother, is liable for the damages caused by the minors who live with
them.

xxx     xxx     xxx

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

xxx     xxx     xxx

"The liability referred to in this article shall cease when the persons mentioned therein prove that they employed all
the diligence of a good father of a family to avoid the damage."

As an answer to the argument urged in this particular action it may be sufficient to point out that nowhere in our general
statutes is the employer penalized for failure to provide or maintain safe appliances for his workmen. His obligation therefore is
one 'not punished by the laws' and falls under civil rather than criminal jurisprudence. But the answer may be a broader one.
We should be reluctant, under any conditions, to adopt a forced construction of these scientific codes, such as is proposed by
the defendant, that would rob some of these articles of effect, would shut out litigants against their will from the civil courts,
would make the assertion of their rights dependent upon the selection for prosecution of the proper criminal offender, and
render recovery doubtful by reason of the strict rules of proof prevailing in criminal actions. Even if these articles had always
stood alone, such a construction would be unnecessary, but clear light is thrown upon their meaning by the provisions of the
Law of Criminal Procedure of Spain (Ley de Enjuiciamiento Criminal), which, though never in actual force in these Islands, was
formerly given a suppletory or explanatory effect. Under article 111 of this law, both classes of action, civil and criminal, might
be prosecuted jointly or separately, but while the penal action was pending the civil was suspended. According to article 112,
the penal action once started, the civil remedy should be sought therewith, unless it had been waived by the party injured or
been expressly reserved by him for civil proceedings for the future. If the civil action alone was prosecuted, arising out of a
crime that could be enforced only on private complaint, the penal action thereunder should be extinguished. These provisions
are in harmony with those of articles 23 and 133 of our Penal Code on the same subject.

An examination of this topic might be carried much further, but the citation of these articles suffices to show that the civil
liability was not intended to be merged in the criminal nor even to be suspended thereby, except as expressly provided in the
law. Where an individual is civilly liable for a negligent act or omission, it is not required that the injured party should seek out a
third person criminally liable whose prosecution must be a condition precedent to the enforcement of the civil right.

Under article 20 of the Penal Code the responsibility of an employer may be regarded as subsidiary in respect of criminal
actions against his employees only while they are in process of prosecution, or in so far as they determine the existence of the
criminal act from which liability arises, and his obligation under the civil law and its enforcement in the civil courts is not barred
 thereby unless by the election of the injured person. Inasmuch as no criminal proceeding had been instituted, growing our of
the accident in question, the provisions of the Penal Code can not affect this action. This construction renders it unnecessary
to finally determine here whether this subsidiary civil liability in penal actions has survived the laws that fully regulated it or has
been abrogated by the American civil and criminal procedure now in force in the Philippines.

The difficulty in construing the articles of the code above cited in this case appears from the briefs before us to have arisen
from the interpretation of the words of article 1093, "fault or negligence not punished by law," as applied to the comprehensive
definition of offenses in articles 568 and 590 of the Penal Code. It has been shown that the liability of an employer arising out
of his relation to his employee who is the offender is not to be regarded as derived from negligence punished by the law, within
the meaning of articles 1902 and 1093. More than this, however, it cannot be said to fall within the class of acts unpunished by
the law, the consequence of which are regulated by articles 1902 and 1903 of the Civil Code. The acts to which these articles
are applicable are understood to be those not growing out of pre-existing duties of the parties to one another. But where
relations already formed give rise to duties, whether springing from contract or quasi contract, then breaches of those duties
are subject to articles 1101, 1103, and 1104 of the same code. A typical application of this distinction may be found in the
consequences of a railway accident due to defective machinery supplied by the employer. His liability to his employee would
arise out of the contract of employment, that to the passengers out of the contract for passage, while that to the injured
bystander would originate in the negligent act itself.

In Manzanares vs. Moreta, 38 Phil., 821 (year 1918), the mother of the 8 of 9-year-old child Salvador Bona brought a civil action
against Moreta to recover damages resulting from the death of the child, who had been run over by an automobile driven and managed
by the defendant. The trial court rendered judgment requiring the defendant to pay the plaintiff the sum of P1,000 as indemnity: This
Court in affirming the judgment, said in part:

If it were true that the defendant, in coming from the southern part of Solana Street, had to stop his auto before crossing Real
Street, because he had met vehicles which were going along the latter street or were coming from the opposite direction along
Solana Street, it is to be believed that, when he again started to run his auto across said Real Street and to continue its way
along Solana Street northward, he should have adjusted the speed of the auto which he was operating until he had fully
crossed Real Street and had completely reached a clear way on Solana Street. But, as the child was run over by the auto
precisely at the entrance of Solana Street, this accident could not have occurred if the auto had been running at a slow speed,
aside from the fact that the defendant, at the moment of crossing Real Street and entering Solana Street, in a northward
direction, could have seen the child in the act of crossing the latter street from the sidewalk on the right to that on the left, and
if the accident had occurred in such a way that after the automobile had run over the body of the child, and the child's body
had already been stretched out on the ground, the automobile still moved along a distance of about 2 meters, this
circumstance shows the fact that the automobile entered Solana Street from Real Street, at a high speed without the
defendant having blown the horn. If these precautions had been taken by the defendant, the deplorable accident which caused
the death of the child would not have occurred.

It will be noticed that the defendant in the above case could have been prosecuted in a criminal case because his negligence causing
the death of the child was punishable by the Penal Code. Here is therefore a clear instance of the same act of negligence being a
proper subject-matter either of a criminal action with its consequent civil liability arising from a crime or of an entirely separate and
independent civil action for fault or negligence under article 1902 of the Civil Code. Thus, in this jurisdiction, the separate individually of
a cuasi-delito or culpa aquiliana under the Civil Code has been fully and clearly recognized, even with regard to a negligent act for
which the wrongdoer could have been prosecuted and convicted in a criminal case and for which, after such a conviction, he could
have been sued for this civil liability arising from his crime.

Years later (in 1930) this Court had another occasion to apply the same doctrine. In Bernal and Enverso vs. House and Tacloban
Electric & Ice Plant, Ltd., 54 Phil., 327, the parents of the five-year-old child, Purificacion Bernal, brought a civil action to recover
damages for the child's death as a result of burns caused by the fault and negligence of the defendants. On the evening of April 10,
1925, the Good Friday procession was held in Tacloban, Leyte. Fortunata Enverso with her daughter Purificacion Bernal had come
from another municipality to attend the same. After the procession the mother and the daughter with two others were passing along
Gran Capitan Street in front of the offices of the Tacloban Electric & Ice Plant, Ltd., owned by defendants J. V. House, when an
automobile appeared from the opposite direction. The little girl, who was slightly ahead of the rest, was so frightened by the automobile
that she turned to run, but unfortunately she fell into the street gutter where hot water from the electric plant was flowing. The child died
that same night from the burns. The trial courts dismissed the action because of the contributory negligence of the plaintiffs. But this
Court held, on appeal, that there was no contributory negligence, and allowed the parents P1,000 in damages from J. V. House who at
the time of the tragic occurrence was the holder of the franchise for the electric plant. This Court said in part:

Although the trial judge made the findings of fact hereinbefore outlined, he nevertheless was led to order the dismissal of the
action because of the contributory negligence of the plaintiffs. It is from this point that a majority of the court depart from the
stand taken by the trial judge. The mother and her child had a perfect right to be on the principal street of Tacloban, Leyte, on
the evening when the religious procession was held. There was nothing abnormal in allowing the child to run along a few
paces in advance of the mother. No one could foresee the coincidence of an automobile appearing and of a frightened child
running and falling into a ditch filled with hot water. The doctrine announced in the much debated case of Rakes vs. Atlantic
Gulf and Pacific Co. ([1907]), 7 Phil., 359), still rule. Article 1902 of the Civil Code must again be enforced. The contributory
negligence of the child and her mother, if any, does not operate as a bar to recovery, but in its strictest sense could only result
in reduction of the damages.
It is most significant that in the case just cited, this Court specifically applied article 1902 of the Civil Code. It is thus that although J. V.
House could have been criminally prosecuted for reckless or simple negligence and not only punished but also made civilly liable
because of his criminal negligence, nevertheless this Court awarded damages in an independent civil action for fault or negligence
under article 1902 of the Civil Code.

In Bahia vs. Litonjua and Leynes (30 Phil., 624 [year 1915), the action was for damages for the death of the plaintiff's daughter alleged
to have been caused by the negligence of the servant in driving an automobile over the child. It appeared that the cause of the mishap
was a defect in the steering gear. The defendant Leynes had rented the automobile from the International Garage of Manila, to be used
by him in carrying passengers during the fiesta of Tuy, Batangas. Leynes was ordered by the lower court to pay P1,000 as damages to
the plaintiff. On appeal this Court reversed the judgment as to Leynes on the ground that he had shown that the exercised the care of a
good father of a family, thus overcoming the presumption of negligence under article 1903. This Court said:

As to selection, the defendant has clearly shown that he exercised the care and diligence of a good father of a family. He
obtained the machine from a reputable garage and it was, so far as appeared, in good condition. The workmen were likewise
selected from a standard garage, were duly licensed by the Government in their particular calling, and apparently thoroughly
competent. The machine had been used but a few hours when the accident occurred and it is clear from the evidence that the
defendant had no notice, either actual or constructive, of the defective condition of the steering gear.

The legal aspect of the case was discussed by this Court thus:

Article 1903 of the Civil Code not only establishes liability in cases of negligence, but also provides when the liability shall
cease. It says:

"The liability referred to in this article shall cease when the persons mentioned therein prove that they employed all
the diligence of a good father of a family to avoid the damage."

From this article two things are apparent: (1) That when an injury is caused by the negligence of a servant or employee there
instantly arises a presumption of law that there was negligence on the part of the matter or employer either in the selection of
the servant or employee, or in supervision over him after the selection, or both; and (2) that presumption is juris tantum and
not juris et de jure, and consequently, may be rebutted. It follows necessarily that if the employer shows to the satisfaction of
the court that in selection and supervision he has exercised the care and diligence of a good father of a family, the
presumption is overcome and he is relieve from liability.

This theory bases the responsibility of the master ultimately on his own negligence and not on that of his servant.

The doctrine of the case just cited was followed by this Court in Cerf vs. Medel (33 Phil., 37 [year 1915]). In the latter case, the
complaint alleged that the defendant's servant had so negligently driven an automobile, which was operated by defendant as a public
vehicle, that said automobile struck and damaged the plaintiff's motorcycle. This Court, applying article 1903 and following the rule
in Bahia vs. Litonjua and Leynes, said in part (p. 41) that:

The master is liable for the negligent acts of his servant where he is the owner or director of a business or enterprise and the
negligent acts are committed while the servant is engaged in his master's employment as such owner.

Another case which followed the decision in Bahia vs. Litonjua and Leynes was Cuison vs. Norton & Harrison Co., 55 Phil., 18 (year
1930). The latter case was an action for damages brought by Cuison for the death of his seven-year-old son Moises. The little boy was
on his way to school with his sister Marciana. Some large pieces of lumber fell from a truck and pinned the boy underneath, instantly
killing him. Two youths, Telesforo Binoya and Francisco Bautista, who were working for Ora, an employee of defendant Norton &
Harrison Co., pleaded guilty to the crime of homicide through reckless negligence and were sentenced accordingly. This Court,
applying articles 1902 and 1903, held:

The basis of civil law liability is not respondent superior but the relationship of  pater familias. This theory bases the liability of
the master ultimately on his own negligence and not on that of his servant. (Bahia vs. Litonjua and Leynes [1915], 30 Phil.,
624; Cangco vs. Manila Railroad Co. [1918], 38 Phil., 768.)

In Walter A. Smith & Co. vs. Cadwallader Gibson Lumber Co., 55 Phil., 517 (year 1930) the plaintiff brought an action for damages for
the demolition of its wharf, which had been struck by the steamer Helen C belonging to the defendant. This Court held (p. 526):

The evidence shows that Captain Lasa at the time the plaintiff's wharf collapsed was a duly licensed captain, authorized to
navigate and direct a vessel of any tonnage, and that the appellee contracted his services because of his reputation as a
captain, according to F. C. Cadwallader. This being so, we are of the opinion that the presumption of liability against the
defendant has been overcome by the exercise of the care and diligence of a good father of a family in selecting Captain Lasa,
in accordance with the doctrines laid down by this court in the cases cited above, and the defendant is therefore absolved from
all liability.
It is, therefore, seen that the defendant's theory about his secondary liability is negatived by the six cases above set forth. He is, on the
authority of these cases, primarily and directly responsible in damages under article 1903, in relation to article 1902, of the Civil Code.

Let us now take up the Philippine decisions relied upon by the defendant. We study first, City of Manila vs. Manila Electric Co., 52 Phil.,
586 (year 1928). A collision between a truck of the City of Manila and a street car of the Manila Electric Co. took place on June 8, 1925.
The truck was damaged in the amount of P1,788.27. Sixto Eustaquio, the motorman, was prosecuted for the crime of damage to
property and slight injuries through reckless imprudence. He was found guilty and sentenced to pay a fine of P900, to indemnify the City
of Manila for P1,788.27, with subsidiary imprisonment in case of insolvency. Unable to collect the indemnity from Eustaquio, the City of
Manila filed an action against the Manila Electric Company to obtain payment, claiming that the defendant was subsidiarily liable. The
main defense was that the defendant had exercised the diligence of a good father of a family to prevent the damage. The lower court
rendered judgment in favor of the plaintiff. This Court held, in part, that this case was governed by the Penal Code, saying:

With this preliminary point out of the way, there is no escaping the conclusion that the provisions of the Penal Code govern.
The Penal Code in easily understandable language authorizes the determination of subsidiary liability. The Civil Code
negatives its application by providing that civil obligations arising from crimes or misdemeanors shall be governed by the
provisions of the Penal Code. The conviction of the motorman was a misdemeanor falling under article 604 of the Penal Code.
The act of the motorman was not a wrongful or negligent act or omission not punishable by law. Accordingly, the civil
obligation connected up with the Penal Code and not with article 1903 of the Civil Code. In other words, the Penal Code
affirms its jurisdiction while the Civil Code negatives its jurisdiction. This is a case of criminal negligence out of which civil
liability arises and not a case of civil negligence.

xxx     xxx     xxx

Our deduction, therefore, is that the case relates to the Penal Code and not to the Civil Code. Indeed, as pointed out by the
trial judge, any different ruling would permit the master to escape scot-free by simply alleging and proving that the master had
exercised all diligence in the selection and training of its servants to prevent the damage. That would be a good defense to a
strictly civil action, but might or might not be to a civil action either as a part of or predicated on conviction for a crime or
misdemeanor. (By way of parenthesis, it may be said further that the statements here made are offered to meet the argument
advanced during our deliberations to the effect that article 0902 of the Civil Code should be disregarded and codal articles
1093 and 1903 applied.)

It is not clear how the above case could support the defendant's proposition, because the Court of Appeals based its decision in the
present case on the defendant's primary responsibility under article 1903 of the Civil Code and not on his subsidiary liability arising from
Fontanilla's criminal negligence. In other words, the case of City of Manila vs. Manila Electric Co., supra, is predicated on an entirely
different theory, which is the subsidiary liability of an employer arising from a criminal act of his employee, whereas the foundation of
the decision of the Court of Appeals in the present case is the employer's primary liability under article 1903 of the Civil Code. We have
already seen that this is a proper and independent remedy.

Arambulo vs. Manila Electric Co. (55 Phil., 75), is another case invoked by the defendant. A motorman in the employ of the Manila
Electric Company had been convicted o homicide by simple negligence and sentenced, among other things, to pay the heirs of the
deceased the sum of P1,000. An action was then brought to enforce the subsidiary liability of the defendant as employer under the
Penal Code. The defendant attempted to show that it had exercised the diligence of a good father of a family in selecting the motorman,
and therefore claimed exemption from civil liability. But this Court held:

In view of the foregoing considerations, we are of opinion and so hold, (1) that the exemption from civil liability established in
article 1903 of the Civil Code for all who have acted with the diligence of a good father of a family, is not applicable to the
subsidiary civil liability provided in article 20 of the Penal Code.

The above case is also extraneous to the theory of the defendant in the instant case, because the action there had for its purpose the
enforcement of the defendant's subsidiary liability under the Penal Code, while in the case at bar, the plaintiff's cause of action is based
on the defendant's primary and direct responsibility under article 1903 of the Civil Code. In fact, the above case destroys the
defendant's contention because that decision illustrates the principle that the employer's primary responsibility under article 1903 of the
Civil Code is different in character from his subsidiary liability under the Penal Code.

In trying to apply the two cases just referred to, counsel for the defendant has failed to recognize the distinction between civil liability
arising from a crime, which is governed by the Penal Code, and the responsibility for cuasi-delito or culpa aquiliana under the Civil
Code, and has likewise failed to give the importance to the latter type of civil action.

The defendant-petitioner also cites Francisco vs. Onrubia (46 Phil., 327). That case need not be set forth. Suffice it to say that the
question involved was also civil liability arising from a crime. Hence, it is as inapplicable as the two cases above discussed.

The foregoing authorities clearly demonstrate the separate individuality of cuasi-delitos or culpa aquiliana under the Civil Code.
Specifically they show that there is a distinction between civil liability arising from criminal negligence (governed by the Penal Code)
and responsibility for fault or negligence under articles 1902 to 1910 of the Civil Code, and that the same negligent act may produce
either a civil liability arising from a crime under the Penal Code, or a separate responsibility for fault or negligence under articles 1902 to
1910 of the Civil Code. Still more concretely, the authorities above cited render it inescapable to conclude that the employer — in this
case the defendant-petitioner — is primarily and directly liable under article 1903 of the Civil Code.

The legal provisions, authors, and cases already invoked should ordinarily be sufficient to dispose of this case. But inasmuch as we are
announcing doctrines that have been little understood in the past, it might not be inappropriate to indicate their foundations.

Firstly, the Revised Penal Code in article 365 punishes not only reckless but also simple negligence. If we were to hold that articles
1902 to 1910 of the Civil Code refer only to fault or negligence not punished by law, according to the literal import of article 1093 of the
Civil Code, the legal institution of culpa aquiliana would have very little scope and application in actual life. Death or injury to persons
and damage to property through any degree of negligence — even the slightest — would have to be indemnified only through the
principle of civil liability arising from a crime. In such a state of affairs, what sphere would remain for cuasi-delito or culpa aquiliana? We
are loath to impute to the lawmaker any intention to bring about a situation so absurd and anomalous. Nor are we, in the interpretation
of the laws, disposed to uphold the letter that killeth rather than the spirit that giveth life. We will not use the literal meaning of the law to
smother and render almost lifeless a principle of such ancient origin and such full-grown development as culpa aquiliana or cuasi-delito,
which is conserved and made enduring in articles 1902 to 1910 of the Spanish Civil Code.

Secondly, to find the accused guilty in a criminal case, proof of guilt beyond reasonable doubt is required, while in a civil case,
preponderance of evidence is sufficient to make the defendant pay in damages. There are numerous cases of criminal negligence
which can not be shown beyond reasonable doubt, but can be proved by a preponderance of evidence. In such cases, the defendant
can and should be made responsible in a civil action under articles 1902 to 1910 of the Civil Code. Otherwise, there would be many
instances of unvindicated civil wrongs. Ubi jus ibi remedium.

Thirdly, to hold that there is only one way to make defendant's liability effective, and that is, to sue the driver and exhaust his (the
latter's) property first, would be tantamount to compelling the plaintiff to follow a devious and cumbersome method of obtaining relief.
True, there is such a remedy under our laws, but there is also a more expeditious way, which is based on the primary and direct
responsibility of the defendant under article 1903 of the Civil Code. Our view of the law is more likely to facilitate remedy for civil
wrongs, because the procedure indicated by the defendant is wasteful and productive of delay, it being a matter of common knowledge
that professional drivers of taxis and similar public conveyance usually do not have sufficient means with which to pay damages. Why,
then, should the plaintiff be required in all cases to go through this roundabout, unnecessary, and probably useless procedure? In
construing the laws, courts have endeavored to shorten and facilitate the pathways of right and justice.

At this juncture, it should be said that the primary and direct responsibility of employers and their presumed negligence are principles
calculated to protect society. Workmen and employees should be carefully chosen and supervised in order to avoid injury to the public.
It is the masters or employers who principally reap the profits resulting from the services of these servants and employees. It is but right
that they should guarantee the latter's careful conduct for the personnel and patrimonial safety of others. As Theilhard has said, "they
should reproach themselves, at least, some for their weakness, others for their poor selection and all for their negligence." And
according to Manresa, "It is much more equitable and just that such responsibility should fall upon the principal or director who could
have chosen a careful and prudent employee, and not upon the injured person who could not exercise such selection and who used
such employee because of his confidence in the principal or director." (Vol. 12, p. 622, 2nd Ed.) Many jurists also base this primary
responsibility of the employer on the principle of representation of the principal by the agent. Thus, Oyuelos says in the work already
cited (Vol. 7, p. 747) that before third persons the employer and employee "vienen a ser como una sola personalidad, por refundicion
de la del dependiente en la de quien le emplea y utiliza." ("become as one personality by the merging of the person of the employee in
that of him who employs and utilizes him.") All these observations acquire a peculiar force and significance when it comes to motor
accidents, and there is need of stressing and accentuating the responsibility of owners of motor vehicles.

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

In view of the foregoing, the judgment of the Court of Appeals should be and is hereby affirmed, with costs against the defendant-
petitioner.
G.R. No. 122039 May 31, 2000
VICENTE CALALAS, petitioner,
vs.
COURT OF APPEALS, ELIZA JUJEURCHE SUNGA and FRANCISCO SALVA, respondents.MENDOZA, J.:

This is a petition for review on certiorari of the decision1 of the Court of Appeals, dated March 31, 1991, reversing the contrary decision
of the Regional Trial Court, Branch 36, Dumaguete City, and awarding damages instead to private respondent Eliza Jujeurche Sunga
as plaintiff in an action for breach of contract of carriage.

The facts, as found by the Court of Appeals, are as follows:

At 10 o'clock in the morning of August 23, 1989, private respondent Eliza Jujeurche G. Sunga, then a college freshman majoring in
Physical Education at the Siliman University, took a passenger jeepney owned and operated by petitioner Vicente Calalas. As the
jeepney was filled to capacity of about 24 passengers, Sunga was given by the conductor an "extension seat," a wooden stool at the
back of the door at the rear end of the vehicle.

On the way to Poblacion Sibulan, Negros Occidental, the jeepney stopped to let a passenger off. As she was seated at the rear of the
vehicle, Sunga gave way to the outgoing passenger. Just as she was doing so, an Isuzu truck driven by Iglecerio Verena and owned by
Francisco Salva bumped the left rear portion of the jeepney. As a result, Sunga was injured. She sustained a fracture of the "distal third
of the left tibia-fibula with severe necrosis of the underlying skin." Closed reduction of the fracture, long leg circular casting, and case
wedging were done under sedation. Her confinement in the hospital lasted from August 23 to September 7, 1989. Her attending
physician, Dr. Danilo V. Oligario, an orthopedic surgeon, certified she would remain on a cast for a period of three months and would
have to ambulate in crutches during said period.

On October 9, 1989, Sunga filed a complaint for damages against Calalas, alleging violation of the contract of carriage by the former in
failing to exercise the diligence required of him as a common carrier. Calalas, on the other hand, filed a third-party complaint against
Francisco Salva, the owner of the Isuzu truck.

The lower court rendered judgment against Salva as third-party defendant and absolved Calalas of liability, holding that it was the driver
of the Isuzu truck who was responsible for the accident. It took cognizance of another case (Civil Case No. 3490), filed by Calalas
against Salva and Verena, for quasi-delict, in which Branch 37 of the same court held Salva and his driver Verena jointly liable to
Calalas for the damage to his jeepney.

On appeal to the Court of Appeals, the ruling of the lower court was reversed on the ground that Sunga's cause of action was based on
a contract of carriage, not quasi-delict, and that the common carrier failed to exercise the diligence required under the Civil Code. The
appellate court dismissed the third-party complaint against Salva and adjudged Calalas liable for damages to Sunga. The dispositive
portion of its decision reads:
WHEREFORE, the decision appealed from is hereby REVERSED and SET ASIDE, and another one is entered ordering defendant-appellee Vicente Calalas to
pay plaintiff-appellant:
(1) P50,000.00 as actual and compensatory damages; (2) P50,000.00 as moral damages; (3) P10,000.00 as attorney's fees; and (4) P1,000.00 as expenses of
litigation; and (5) to pay the costs. SO ORDERED.
Hence, this petition. Petitioner contends that the ruling in Civil Case No. 3490 that the negligence of Verena was the proximate cause of
the accident negates his liability and that to rule otherwise would be to make the common carrier an insurer of the safety of its
passengers. He contends that the bumping of the jeepney by the truck owned by Salva was a caso fortuito. Petitioner further assails the
award of moral damages to Sunga on the ground that it is not supported by evidence.

The petition has no merit.

The argument that Sunga is bound by the ruling in Civil Case No. 3490 finding the driver and the owner of the truck liable for quasi-
delict ignores the fact that she was never a party to that case and, therefore, the principle of res judicata does not apply.
Nor are the issues in Civil Case No. 3490 and in the present case the same. The issue in Civil Case No. 3490 was whether
Salva and his driver Verena were liable for quasi-delict for the damage caused to petitioner's jeepney. On the other hand, the issue in
this case is whether petitioner is liable on his contract of carriage. The first, quasi-delict, also known as culpa aquiliana or culpa extra
contractual, has as its source the negligence of the tortfeasor. The second, breach of contract or culpa contractual, is premised upon
the negligence in the performance of a contractual obligation.
Consequently, in quasi-delict, the negligence or fault should be clearly established because it is the basis of the action,
whereas in breach of contract, the action can be prosecuted merely by proving the existence of the contract and the fact that the
obligor, in this case the common carrier, failed to transport his passenger safely to his destination.2 In case of death or injuries to
passengers, Art. 1756 of the Civil Code provides that common carriers are presumed to have been at fault or to have acted negligently
unless they prove that they observed extraordinary diligence as defined in Arts. 1733 and 1755 of the Code. This provision necessarily
shifts to the common carrier the burden of proof.
There is, thus, no basis for the contention that the ruling in Civil Case No. 3490, finding Salva and his driver Verena liable for
the damage to petitioner's jeepney, should be binding on Sunga. It is immaterial that the proximate cause of the collision between the
jeepney and the truck was the negligence of the truck driver. The doctrine of proximate cause is applicable only in actions for quasi-
delict, not in actions involving breach of contract. The doctrine is a device for imputing liability to a person where there is no relation
between him and another party. In such a case, the obligation is created by law itself. But, where there is a pre-existing contractual
relation between the parties, it is the parties themselves who create the obligation, and the function of the law is merely to regulate the
relation thus created. Insofar as contracts of carriage are concerned, some aspects regulated by the Civil Code are those respecting
the diligence required of common carriers with regard to the safety of passengers as well as the presumption of negligence in cases of
death or injury to passengers. It provides:
Art. 1733. Common carriers, from the nature of their business and for reasons of public policy, are bound to observe
extraordinary diligence in the vigilance over the goods and for the safety of the passengers transported by them, according to
all the circumstances of each case.
Such extraordinary diligence in the vigilance over the goods is further expressed in articles 1734, 1735, and 1746, Nos. 5, 6,
and 7, while the extraordinary diligence for the safety of the passengers is further set forth in articles 1755 and 1756.
Art. 1755. A common carrier is bound to carry the passengers safely as far as human care and foresight can provide, using the
utmost diligence of very cautious persons, with due regard for all the circumstances.
Art. 1756. In case of death of or injuries to passengers, common carriers are presumed to have been at fault or to have acted
negligently, unless they prove that they observed extraordinary diligence as prescribed by articles 1733 and 1755.
In the case at bar, upon the happening of the accident, the presumption of negligence at once arose, and it became the duty of
petitioner to prove that he had to observe extraordinary diligence in the care of his passengers.

Now, did the driver of jeepney carry Sunga "safely as far as human care and foresight could provide, using the utmost diligence of very
cautious persons, with due regard for all the circumstances" as required by Art. 1755? We do not think so. Several factors militate
against petitioner's contention.
First, as found by the Court of Appeals, the jeepney was not properly parked, its rear portion being exposed about two meters
from the broad shoulders of the highway, and facing the middle of the highway in a diagonal angle. This is a violation of the R.A. No.
4136, as amended, or the Land Transportation and Traffic Code, which provides:
Sec. 54. Obstruction of Traffic. — No person shall drive his motor vehicle in such a manner as to obstruct or impede
the passage of any vehicle, nor, while discharging or taking on passengers or loading or unloading freight, obstruct
the free passage of other vehicles on the highway.
Second, it is undisputed that petitioner's driver took in more passengers than the allowed seating capacity of the jeepney, a
violation of §32(a) of the same law. It provides:
Exceeding registered capacity. — No person operating any motor vehicle shall allow more passengers or more
freight or cargo in his vehicle than its registered capacity.

The fact that Sunga was seated in an "extension seat" placed her in a peril greater than that to which the other passengers were
exposed. Therefore, not only was petitioner unable to overcome the presumption of negligence imposed on him for the injury sustained
by Sunga, but also, the evidence shows he was actually negligent in transporting passengers.

We find it hard to give serious thought to petitioner's contention that Sunga's taking an "extension seat" amounted to an implied
assumption of risk. It is akin to arguing that the injuries to the many victims of the tragedies in our seas should not be compensated
merely because those passengers assumed a greater risk of drowning by boarding an overloaded ferry. This is also true of petitioner's
contention that the jeepney being bumped while it was improperly parked constitutes caso fortuito. A caso fortuito is an event which
could not be foreseen, or which, though foreseen, was inevitable.3 This requires that the following requirements be present: (a) the
cause of the breach is independent of the debtor's will; (b) the event is unforeseeable or unavoidable; (c) the event is such as to render
it impossible for the debtor to fulfill his obligation in a normal manner, and (d) the debtor did not take part in causing the injury to the
creditor.4 Petitioner should have foreseen the danger of parking his jeepney with its body protruding two meters into the highway.
Finally, petitioner challenges the award of moral damages alleging that it is excessive and without basis in law. We find this
contention well taken.
In awarding moral damages, the Court of Appeals stated:
Plaintiff-appellant at the time of the accident was a first-year college student in that school year 1989-1990 at the Silliman
University, majoring in Physical Education. Because of the injury, she was not able to enroll in the second semester of that
school year. She testified that she had no more intention of continuing with her schooling, because she could not walk and
decided not to pursue her degree, major in Physical Education "because of my leg which has a defect already."
Plaintiff-appellant likewise testified that even while she was under confinement, she cried in pain because of her injured left
foot. As a result of her injury, the Orthopedic Surgeon also certified that she has "residual bowing of the fracture side." She
likewise decided not to further pursue Physical Education as her major subject, because "my left leg . . . has a defect already."
Those are her physical pains and moral sufferings, the inevitable bedfellows of the injuries that she suffered. Under Article
2219 of the Civil Code, she is entitled to recover moral damages in the sum of P50,000.00, which is fair, just and reasonable.
As a general rule, moral damages are not recoverable in actions for damages predicated on a breach of contract for it is not one of the
items enumerated under Art. 2219 of the Civil Code.5 As an exception, such damages are recoverable: (1) in cases in which the mishap
results in the death of a passenger, as provided in Art. 1764, in relation to Art. 2206(3) of the Civil Code; and (2) in the cases in which
the carrier is guilty of fraud or bad faith, as provided in Art. 2220.6
In this case, there is no legal basis for awarding moral damages since there was no factual finding by the appellate court that
petitioner acted in bad faith in the performance of the contract of carriage. Sunga's contention that petitioner's admission in open court
that the driver of the jeepney failed to assist her in going to a nearby hospital cannot be construed as an admission of bad faith. The
fact that it was the driver of the Isuzu truck who took her to the hospital does not imply that petitioner was utterly indifferent to the plight
of his injured passenger. If at all, it is merely implied recognition by Verena that he was the one at fault for the accident.

WHEREFORE, the decision of the Court of Appeals, dated March 31, 1995, and its resolution, dated September 11, 1995, are
AFFIRMED, with the MODIFICATION that the award of moral damages is DELETED. SO ORDERED.
G.R. No. 124354 December 29, 1999

ROGELIO E. RAMOS and ERLINDA RAMOS, in their own behalf and as natural guardians of the minors, ROMMEL RAMOS,
ROY RODERICK RAMOS and RON RAYMOND RAMOS, petitioners,
vs.
COURT OF APPEALS, DELOS SANTOS MEDICAL CENTER, DR. ORLINO HOSAKA and DRA. PERFECTA
GUTIERREZ, respondents.

 KAPUNAN, J.:

The Hippocratic Oath mandates physicians to give primordial consideration to the health and welfare of their patients. If a doctor fails to
live up to this precept, he is made accountable for his acts. A mistake, through gross negligence or incompetence or plain human error,
may spell the difference between life and death. In this sense, the doctor plays God on his patient's fate. 1

In the case at bar, the Court is called upon to rule whether a surgeon, an anesthesiologist and a hospital should be made liable for the
unfortunate comatose condition of a patient scheduled for cholecystectomy. 2

Petitioners seek the reversal of the decision 3 of the Court of Appeals, dated 29 May 1995, which overturned the decision 4 of the
Regional Trial Court, dated 30 January 1992, finding private respondents liable for damages arising from negligence in the performance
of their professional duties towards petitioner Erlinda Ramos resulting in her comatose condition.

The antecedent facts as summarized by the trial court are reproduced hereunder:

Plaintiff Erlinda Ramos was, until the afternoon of June 17, 1985, a 47-year old (Exh. "A") robust woman (TSN,
October 19, 1989, p. 10). Except for occasional complaints of discomfort due to pains allegedly caused by the
presence of a stone in her gall bladder (TSN, January 13, 1988, pp. 4-5), she was as normal as any other woman.
Married to Rogelio E. Ramos, an executive of Philippine Long Distance Telephone Company, she has three children
whose names are Rommel Ramos, Roy Roderick Ramos and Ron Raymond Ramos (TSN, October 19, 1989, pp. 5-
6).

Because the discomforts somehow interfered with her normal ways, she sought professional advice. She was
advised to undergo an operation for the removal of a stone in her gall bladder (TSN, January 13, 1988, p. 5). She
underwent a series of examinations which included blood and urine tests (Exhs. "A" and "C") which indicated she was
fit for surgery.

Through the intercession of a mutual friend, Dr. Buenviaje (TSN, January 13, 1988, p. 7), she and her husband
Rogelio met for the first time Dr. Orlino Hozaka (should be Hosaka; see TSN, February 20, 1990, p. 3), one of the
defendants in this case, on June 10, 1985. They agreed that their date at the operating table at the DLSMC (another
defendant), would be on June 17, 1985 at 9:00 A.M.. Dr. Hosaka decided that she should undergo a
"cholecystectomy" operation after examining the documents (findings from the Capitol Medical Center, FEU Hospital
and DLSMC) presented to him. Rogelio E. Ramos, however, asked Dr. Hosaka to look for a good anesthesiologist.
Dr. Hosaka, in turn, assured Rogelio that he will get a good anesthesiologist. Dr. Hosaka charged a fee of
P16,000.00, which was to include the anesthesiologist's fee and which was to be paid after the operation (TSN,
October 19, 1989, pp. 14-15, 22-23, 31-33; TSN, February 27, 1990, p. 13; and TSN, November 9, 1989, pp. 3-4, 10,
17).

A day before the scheduled date of operation, she was admitted at one of the rooms of the DLSMC, located along E.
Rodriguez Avenue, Quezon City (TSN, October 19,1989, p. 11).

At around 7:30 A.M. of June 17, 1985 and while still in her room, she was prepared for the operation by the hospital
staff. Her sister-in-law, Herminda Cruz, who was the Dean of the College of Nursing at the Capitol Medical Center,
was also there for moral support. She reiterated her previous request for Herminda to be with her even during the
operation. After praying, she was given injections. Her hands were held by Herminda as they went down from her
room to the operating room (TSN, January 13, 1988, pp. 9-11). Her husband, Rogelio, was also with her (TSN,
October 19, 1989, p. 18). At the operating room, Herminda saw about two or three nurses and Dr. Perfecta Gutierrez,
the other defendant, who was to administer anesthesia. Although not a member of the hospital staff, Herminda
introduced herself as Dean of the College of Nursing at the Capitol Medical Center who was to provide moral support
to the patient, to them. Herminda was allowed to stay inside the operating room.

At around 9:30 A.M., Dr. Gutierrez reached a nearby phone to look for Dr. Hosaka who was not yet in (TSN, January
13, 1988, pp. 11-12). Dr. Gutierrez thereafter informed Herminda Cruz about the prospect of a delay in the arrival of
Dr. Hosaka. Herminda then went back to the patient who asked, "Mindy, wala pa ba ang Doctor"? The former replied,
"Huwag kang mag-alaala, darating na iyon" (Ibid.).
 Thereafter, Herminda went out of the operating room and informed the patient's husband, Rogelio, that the doctor
was not yet around (id., p. 13). When she returned to the operating room, the patient told her, "Mindy, inip na inip na
ako, ikuha mo ako ng ibang Doctor." So, she went out again and told Rogelio about what the patient said (id., p. 15).
Thereafter, she returned to the operating room.

At around 10:00 A.M., Rogelio E. Ramos was "already dying [and] waiting for the arrival of the doctor" even as he did
his best to find somebody who will allow him to pull out his wife from the operating room (TSN, October 19, 1989, pp.
19-20). He also thought of the feeling of his wife, who was inside the operating room waiting for the doctor to arrive
(ibid.). At almost 12:00 noon, he met Dr. Garcia who remarked that he (Dr. Garcia) was also tired of waiting for Dr.
Hosaka to arrive (id., p. 21). While talking to Dr. Garcia at around 12:10 P.M., he came to know that Dr. Hosaka
arrived as a nurse remarked, "Nandiyan na si Dr. Hosaka, dumating na raw." Upon hearing those words, he went
down to the lobby and waited for the operation to be completed (id., pp. 16, 29-30).

At about 12:15 P.M., Herminda Cruz, who was inside the operating room with the patient, heard somebody say that
"Dr. Hosaka is already here." She then saw people inside the operating room "moving, doing this and that, [and]
preparing the patient for the operation" (TSN, January 13, 1988, p. 16). As she held the hand of Erlinda Ramos, she
then saw Dr. Gutierrez intubating the hapless patient. She thereafter heard Dr. Gutierrez say, "ang hirap ma-intubate
nito, mali yata ang pagkakapasok. O lumalaki ang tiyan" (id., p. 17). Because of the remarks of Dra. Gutierrez, she
focused her attention on what Dr. Gutierrez was doing. She thereafter noticed bluish discoloration of the nailbeds of
the left hand of the hapless Erlinda even as Dr. Hosaka approached her. She then heard Dr. Hosaka issue an order
for someone to call Dr. Calderon, another anesthesiologist (id., p. 19). After Dr. Calderon arrived at the operating
room, she saw this anesthesiologist trying to intubate the patient. The patient's nailbed became bluish and the patient
was placed in a trendelenburg position — a position where the head of the patient is placed in a position lower than
her feet which is an indication that there is a decrease of blood supply to the patient's brain (Id., pp. 19-20).
Immediately thereafter, she went out of the operating room, and she told Rogelio E. Ramos "that something wrong
was . . . happening" (Ibid.). Dr. Calderon was then able to intubate the patient (TSN, July 25, 1991, p. 9).

Meanwhile, Rogelio, who was outside the operating room, saw a respiratory machine being rushed towards the door
of the operating room. He also saw several doctors rushing towards the operating room. When informed by Herminda
Cruz that something wrong was happening, he told her (Herminda) to be back with the patient inside the operating
room (TSN, October 19, 1989, pp. 25-28).

Herminda Cruz immediately rushed back, and saw that the patient was still in trendelenburg position (TSN, January
13, 1988, p. 20). At almost 3:00 P.M. of that fateful day, she saw the patient taken to the Intensive Care Unit (ICU).

About two days thereafter, Rogelio E. Ramos was able to talk to Dr. Hosaka. The latter informed the former that
something went wrong during the intubation. Reacting to what was told to him, Rogelio reminded the doctor that the
condition of his wife would not have happened, had he (Dr. Hosaka) looked for a good anesthesiologist (TSN,
October 19, 1989, p. 31).

Doctors Gutierrez and Hosaka were also asked by the hospital to explain what happened to the patient. The doctors
explained that the patient had bronchospasm (TSN, November 15, 1990, pp. 26-27).

Erlinda Ramos stayed at the ICU for a month. About four months thereafter or on November 15, 1985, the patient
was released from the hospital.

During the whole period of her confinement, she incurred hospital bills amounting to P93,542.25 which is the subject
of a promissory note and affidavit of undertaking executed by Rogelio E. Ramos in favor of DLSMC. Since that fateful
afternoon of June 17, 1985, she has been in a comatose condition. She cannot do anything. She cannot move any
part of her body. She cannot see or hear. She is living on mechanical means. She suffered brain damage as a result
of the absence of oxygen in her brain for four to five minutes (TSN, November 9, 1989, pp. 21-22). After being
discharged from the hospital, she has been staying in their residence, still needing constant medical attention, with
her husband Rogelio incurring a monthly expense ranging from P8,000.00 to P10,000.00 (TSN, October 19, 1989,
pp. 32-34). She was also diagnosed to be suffering from "diffuse cerebral parenchymal damage" (Exh. "G"; see
also TSN, December 21, 1989,
p. 6). 5

Thus, on 8 January 1986, petitioners filed a civil case 6 for damages with the Regional Trial Court of Quezon City against herein private
respondents alleging negligence in the management and care of Erlinda Ramos.

During the trial, both parties presented evidence as to the possible cause of Erlinda's injury. Plaintiff presented the testimonies of Dean
Herminda Cruz and Dr. Mariano Gavino to prove that the sustained by Erlinda was due to lack of oxygen in her brain caused by the
faulty management of her airway by private respondents during the anesthesia phase. On the other hand, private respondents primarily
relied on the expert testimony of Dr. Eduardo Jamora, a pulmonologist, to the effect that the cause of brain damage was Erlinda's
allergic reaction to the anesthetic agent, Thiopental Sodium (Pentothal).
After considering the evidence from both sides, the Regional Trial Court rendered judgment in favor of petitioners, to wit:

After evaluating the evidence as shown in the finding of facts set forth earlier, and applying the aforecited provisions
of law and jurisprudence to the case at bar, this Court finds and so holds that defendants are liable to plaintiffs for
damages. The defendants were guilty of, at the very least, negligence in the performance of their duty to plaintiff-
patient Erlinda Ramos.

On the part of Dr. Perfecta Gutierrez, this Court finds that she omitted to exercise reasonable care in not only
intubating the patient, but also in not repeating the administration of atropine (TSN, August 20, 1991, pp. 5-10),
without due regard to the fact that the patient was inside the operating room for almost three (3) hours. For after she
committed a mistake in intubating [the] patient, the patient's nailbed became bluish and the patient, thereafter, was
placed in trendelenburg position, because of the decrease of blood supply to the patient's brain. The evidence further
shows that the hapless patient suffered brain damage because of the absence of oxygen in her (patient's) brain for
approximately four to five minutes which, in turn, caused the patient to become comatose.

On the part of Dr. Orlino Hosaka, this Court finds that he is liable for the acts of Dr. Perfecta Gutierrez whom he had
chosen to administer anesthesia on the patient as part of his obligation to provide the patient a good
anesthesiologist', and for arriving for the scheduled operation almost three (3) hours late.

On the part of DLSMC (the hospital), this Court finds that it is liable for the acts of negligence of the doctors in their
"practice of medicine" in the operating room. Moreover, the hospital is liable for failing through its responsible officials,
to cancel the scheduled operation after Dr. Hosaka inexcusably failed to arrive on time.

In having held thus, this Court rejects the defense raised by defendants that they have acted with due care and
prudence in rendering medical services to plaintiff-patient. For if the patient was properly intubated as claimed by
them, the patient would not have become comatose. And, the fact that another anesthesiologist was called to try to
intubate the patient after her (the patient's) nailbed turned bluish, belie their claim. Furthermore, the defendants
should have rescheduled the operation to a later date. This, they should have done, if defendants acted with due care
and prudence as the patient's case was an elective, not an emergency case.

x x x           x x x          x x x

WHEREFORE, and in view of the foregoing, judgment is rendered in favor of the plaintiffs and against the
defendants. Accordingly, the latter are ordered to pay, jointly and severally, the former the following sums of money,
to wit:

1) the sum of P8,000.00 as actual monthly expenses for the plaintiff Erlinda Ramos reckoned from
November 15, 1985 or in the total sum of P632,000.00 as of April 15, 1992, subject to its being
updated;

2) the sum of P100,000.00 as reasonable attorney's fees;

3) the sum of P800,000.00 by way of moral damages and the further sum of P200,000,00 by way of
exemplary damages; and,

4) the costs of the suit.

SO ORDERED. 7

Private respondents seasonably interposed an appeal to the Court of Appeals. The appellate court rendered a Decision, dated 29 May
1995, reversing the findings of the trial court. The decretal portion of the decision of the appellate court reads:

WHEREFORE, for the foregoing premises the appealed decision is hereby REVERSED, and the complaint below
against the appellants is hereby ordered DISMISSED. The counterclaim of appellant De Los Santos Medical Center
is GRANTED but only insofar as appellees are hereby ordered to pay the unpaid hospital bills amounting to
P93,542.25, plus legal interest for justice must be tempered with mercy.

SO ORDERED. 8

The decision of the Court of Appeals was received on 9 June 1995 by petitioner Rogelio Ramos who was mistakenly addressed as
"Atty. Rogelio Ramos." No copy of the decision, however, was sent nor received by the Coronel Law Office, then counsel on record of
petitioners. Rogelio referred the decision of the appellate court to a new lawyer, Atty. Ligsay, only on 20 June 1995, or four (4) days
before the expiration of the reglementary period for filing a motion for reconsideration. On the same day, Atty. Ligsay, filed with the
appellate court a motion for extension of time to file a motion for reconsideration. The motion for reconsideration was submitted on 4
July 1995. However, the appellate court denied the motion for extension of time in its Resolution dated 25 July 1995. 9 Meanwhile,
petitioners engaged the services of another counsel, Atty. Sillano, to replace Atty. Ligsay. Atty. Sillano filed on 7 August 1995 a motion
to admit the motion for reconsideration contending that the period to file the appropriate pleading on the assailed decision had not yet
commenced to run as the Division Clerk of Court of the Court of Appeals had not yet served a copy thereof to the counsel on record.
Despite this explanation, the appellate court still denied the motion to admit the motion for reconsideration of petitioners in its
Resolution, dated 29 March 1996, primarily on the ground that the fifteen-day (15) period for filing a motion for reconsideration had
already expired, to wit:

We said in our Resolution on July 25, 1995, that the filing of a Motion for Reconsideration cannot be extended;
precisely, the Motion for Extension (Rollo, p. 12) was denied. It is, on the other hand, admitted in the latter Motion that
plaintiffs/appellees received a copy of the decision as early as June 9, 1995. Computation wise, the period to file a
Motion for Reconsideration expired on June 24. The Motion for Reconsideration, in turn, was received by the Court of
Appeals already on July 4, necessarily, the 15-day period already passed. For that alone, the latter should be denied.

Even assuming admissibility of the Motion for the Reconsideration, but after considering the Comment/Opposition,
the former, for lack of merit, is hereby DENIED.

SO ORDERED. 10

A copy of the above resolution was received by Atty. Sillano on 11 April 1996. The next day, or on 12 April 1996, Atty. Sillano filed
before this Court a motion for extension of time to file the present petition for certiorari under Rule 45. The Court granted the motion for
extension of time and gave petitioners additional thirty (30) days after the expiration of the fifteen-day (15) period counted from the
receipt of the resolution of the Court of Appeals within which to submit the petition. The due date fell on 27 May 1996. The petition was
filed on 9 May 1996, well within the extended period given by the Court.

Petitioners assail the decision of the Court of Appeals on the following grounds:

IN PUTTING MUCH RELIANCE ON THE TESTIMONIES OF RESPONDENTS DRA. GUTIERREZ, DRA.

CALDERON AND DR. JAMORA;

II

IN FINDING THAT THE NEGLIGENCE OF THE RESPONDENTS DID NOT CAUSE THE UNFORTUNATE
COMATOSE CONDITION OF PETITIONER ERLINDA RAMOS;

III

IN NOT APPLYING THE DOCTRINE OF RES IPSA LOQUITUR. 11

Before we discuss the merits of the case, we shall first dispose of the procedural issue on the timeliness of the petition in relation to the
motion for reconsideration filed by petitioners with the Court of Appeals. In their
Comment, 12 private respondents contend that the petition should not be given due course since the motion for reconsideration of the
petitioners on the decision of the Court of Appeals was validly dismissed by the appellate court for having been filed beyond the
reglementary period. We do not agree.

A careful review of the records reveals that the reason behind the delay in filing the motion for reconsideration is attributable to the fact
that the decision of the Court of Appeals was not sent to then counsel on record of petitioners, the Coronel Law Office. In fact, a copy of
the decision of the appellate court was instead sent to and received by petitioner Rogelio Ramos on 9 June 1995 wherein he was
mistakenly addressed as Atty. Rogelio Ramos. Based on the other communications received by petitioner Rogelio Ramos, the
appellate court apparently mistook him for the counsel on record. Thus, no copy of the decision of the counsel on record. Petitioner, not
being a lawyer and unaware of the prescriptive period for filing a motion for reconsideration, referred the same to a legal counsel only
on 20 June 1995.

It is elementary that when a party is represented by counsel, all notices should be sent to the party's lawyer at his given address. With a
few exceptions, notice to a litigant without notice to his counsel on record is no notice at all. In the present case, since a copy of the
decision of the appellate court was not sent to the counsel on record of petitioner, there can be no sufficient notice to speak of. Hence,
the delay in the filing of the motion for reconsideration cannot be taken against petitioner. Moreover, since the Court of Appeals already
issued a second Resolution, dated 29 March 1996, which superseded the earlier resolution issued on 25 July 1995, and denied the
motion for reconsideration of petitioner, we believed that the receipt of the former should be considered in determining the timeliness of
the filing of the present petition. Based on this, the petition before us was submitted on time.
After resolving the foregoing procedural issue, we shall now look into the merits of the case. For a more logical presentation of the
discussion we shall first consider the issue on the applicability of the doctrine of res ipsa loquitur to the instant case. Thereafter, the first
two assigned errors shall be tackled in relation to the res ipsa loquitur doctrine.

Res ipsa loquitur is a Latin phrase which literally means "the thing or the transaction speaks for itself." The phrase "res ipsa loquitur'' is
a maxim for the rule that the fact of the occurrence of an injury, taken with the surrounding circumstances, may permit an inference or
raise a presumption of negligence, or make out a plaintiff's prima facie case, and present a question of fact for defendant to meet with
an explanation. 13 Where the thing which caused the injury complained of is shown to be under the management of the defendant or his
servants and the accident is such as in ordinary course of things does not happen if those who have its management or control use
proper care, it affords reasonable evidence, in the absence of explanation by the defendant, that the accident arose from or was
caused by the defendant's want of care. 14

The doctrine of res ipsa loquitur is simply a recognition of the postulate that, as a matter of common knowledge and experience, the
very nature of certain types of occurrences may justify an inference of negligence on the part of the person who controls the
instrumentality causing the injury in the absence of some explanation by the defendant who is charged with negligence. 15 It is grounded
in the superior logic of ordinary human experience and on the basis of such experience or common knowledge, negligence may be
deduced from the mere occurrence of the accident itself. 16 Hence, res ipsa loquitur is applied in conjunction with the doctrine of
common knowledge.

However, much has been said that res ipsa loquitur is not a rule of substantive law and, as such, does not create or constitute an
independent or separate ground of liability. 17 Instead, it is considered as merely evidentiary or in the nature of a procedural rule. 18 It is
regarded as a mode of proof, or a mere procedural of convenience since it furnishes a substitute for, and relieves a plaintiff of, the
burden of producing specific proof of negligence. 19 In other words, mere invocation and application of the doctrine does not dispense
with the requirement of proof of negligence. It is simply a step in the process of such proof, permitting the plaintiff to present along with
the proof of the accident, enough of the attending circumstances to invoke the doctrine, creating an inference or presumption of
negligence, and to thereby place on the defendant the burden of going forward with the proof. 20 Still, before resort to the doctrine may
be allowed, the following requisites must be satisfactorily shown:

1. The accident is of a kind which ordinarily does not occur in the absence of someone's
negligence;

2. It is caused by an instrumentality within the exclusive control of the defendant or defendants; and

3. The possibility of contributing conduct which would make the plaintiff responsible is eliminated. 21

In the above requisites, the fundamental element is the "control of instrumentality" which caused the damage. 22 Such element of
control must be shown to be within the dominion of the defendant. In order to have the benefit of the rule, a plaintiff, in addition to
proving injury or damage, must show a situation where it is applicable, and must establish that the essential elements of the doctrine
were present in a particular incident. 23

Medical malpractice 24 cases do not escape the application of this doctrine. Thus, res ipsa loquitur has been applied when the
circumstances attendant upon the harm are themselves of such a character as to justify an inference of negligence as the cause of that
harm. 25 The application of res ipsa loquitur in medical negligence cases presents a question of law since it is a judicial function to
determine whether a certain set of circumstances does, as a matter of law, permit a given inference. 26

Although generally, expert medical testimony is relied upon in malpractice suits to prove that a physician has done a negligent act or
that he has deviated from the standard medical procedure, when the doctrine of res ipsa loquitur is availed by the plaintiff, the need for
expert medical testimony is dispensed with because the injury itself provides the proof of negligence. 27 The reason is that the general
rule on the necessity of expert testimony applies only to such matters clearly within the domain of medical science, and not to matters
that are within the common knowledge of mankind which may be testified to by anyone familiar with the facts. 28 Ordinarily, only
physicians and surgeons of skill and experience are competent to testify as to whether a patient has been treated or operated upon
with a reasonable degree of skill and care. However, testimony as to the statements and acts of physicians and surgeons, external
appearances, and manifest conditions which are observable by any one may be given by non-expert witnesses. 29 Hence, in cases
where the res ipsa loquitur is applicable, the court is permitted to find a physician negligent upon proper proof of injury to the patient,
without the aid of expert testimony, where the court from its fund of common knowledge can determine the proper standard of
care. 30 Where common knowledge and experience teach that a resulting injury would not have occurred to the patient if due care had
been exercised, an inference of negligence may be drawn giving rise to an application of the doctrine of res ipsa loquitur without
medical evidence, which is ordinarily required to show not only what occurred but how and why it occurred. 31 When the doctrine is
appropriate, all that the patient must do is prove a nexus between the particular act or omission complained of and the injury sustained
while under the custody and management of the defendant without need to produce expert medical testimony to establish the standard
of care. Resort to res ipsa loquitur  is allowed because there is no other way, under usual and ordinary conditions, by which the patient
can obtain redress for injury suffered by him.

Thus, courts of other jurisdictions have applied the doctrine in the following situations: leaving of a foreign object in the body of the
patient after an operation, 32 injuries sustained on a healthy part of the body which was not under, or in the area, of
treatment, 33 removal of the wrong part of the body when another part was intended, 34 knocking out a tooth while a patient's jaw was
under anesthetic for the removal of his tonsils, 35 and loss of an eye while the patient plaintiff was under the influence of anesthetic,
during or following an operation for appendicitis, 36 among others.

Nevertheless, despite the fact that the scope of res ipsa loquitur has been measurably enlarged, it does not automatically apply to all
cases of medical negligence as to mechanically shift the burden of proof to the defendant to show that he is not guilty of the ascribed
negligence. Res ipsa loquitur is not a rigid or ordinary doctrine to be perfunctorily used but a rule to be cautiously applied, depending
upon the circumstances of each case. It is generally restricted to situations in malpractice cases where a layman is able to say, as a
matter of common knowledge and observation, that the consequences of professional care were not as such as would ordinarily have
followed if due care had been
exercised. 37 A distinction must be made between the failure to secure results, and the occurrence of something more unusual and not
ordinarily found if the service or treatment rendered followed the usual procedure of those skilled in that particular practice. It must be
conceded that the doctrine of res ipsa loquitur can have no application in a suit against a physician or surgeon which involves the
merits of a diagnosis or of a scientific treatment. 38 The physician or surgeon is not required at his peril to explain why any particular
diagnosis was not correct, or why any particular scientific treatment did not produce the desired result. 39 Thus, res ipsa loquitur is not
available in a malpractice suit if the only showing is that the desired result of an operation or treatment was not accomplished. 40 The
real question, therefore, is whether or not in the process of the operation any extraordinary incident or unusual event outside of the
routine performance occurred which is beyond the regular scope of customary professional activity in such operations, which, if
unexplained would themselves reasonably speak to the average man as the negligent cause or causes of the untoward
consequence. 41 If there was such extraneous interventions, the doctrine of res ipsa loquitur may be utilized and the defendant is called
upon to explain the matter, by evidence of exculpation, if he could. 42

We find the doctrine of res ipsa loquitur appropriate in the case at bar. As will hereinafter be explained, the damage sustained by
Erlinda in her brain prior to a scheduled gall bladder operation presents a case for the application of res ipsa loquitur.

A case strikingly similar to the one before us is Voss vs. Bridwell, 43 where the Kansas Supreme Court in applying the res ipsa
loquitur stated:

The plaintiff herein submitted himself for a mastoid operation and delivered his person over to the care, custody and
control of his physician who had complete and exclusive control over him, but the operation was never performed. At
the time of submission he was neurologically sound and physically fit in mind and body, but he suffered irreparable
damage and injury rendering him decerebrate and totally incapacitated. The injury was one which does not ordinarily
occur in the process of a mastoid operation or in the absence of negligence in the administration of an anesthetic,
and in the use and employment of an endoctracheal tube. Ordinarily a person being put under anesthesia is not
rendered decerebrate as a consequence of administering such anesthesia in the absence of negligence. Upon these
facts and under these circumstances a layman would be able to say, as a matter of common knowledge and
observation, that the consequences of professional treatment were not as such as would ordinarily have followed if
due care had been exercised.

Here the plaintiff could not have been guilty of contributory negligence because he was under the influence of
anesthetics and unconscious, and the circumstances are such that the true explanation of event is more accessible to
the defendants than to the plaintiff for they had the exclusive control of the instrumentalities of anesthesia.

Upon all the facts, conditions and circumstances alleged in Count II it is held that a cause of action is stated under the
doctrine of res ipsa loquitur. 44

Indeed, the principles enunciated in the aforequoted case apply with equal force here. In the present case, Erlinda submitted herself for
cholecystectomy and expected a routine general surgery to be performed on her gall bladder. On that fateful day she delivered her
person over to the care, custody and control of private respondents who exercised complete and exclusive control over her. At the time
of submission, Erlinda was neurologically sound and, except for a few minor discomforts, was likewise physically fit in mind and body.
However, during the administration of anesthesia and prior to the performance of cholecystectomy she suffered irreparable damage to
her brain. Thus, without undergoing surgery, she went out of the operating room already decerebrate and totally incapacitated.
Obviously, brain damage, which Erlinda sustained, is an injury which does not normally occur in the process of a gall bladder operation.
In fact, this kind of situation does not in the absence of negligence of someone in the administration of anesthesia and in the use of
endotracheal tube. Normally, a person being put under anesthesia is not rendered decerebrate as a consequence of administering
such anesthesia if the proper procedure was followed. Furthermore, the instruments used in the administration of anesthesia, including
the endotracheal tube, were all under the exclusive control of private respondents, who are the physicians-in-charge. Likewise,
petitioner Erlinda could not have been guilty of contributory negligence because she was under the influence of anesthetics which
rendered her unconscious.

Considering that a sound and unaffected member of the body (the brain) is injured or destroyed while the patient is unconscious and
under the immediate and exclusive control of the physicians, we hold that a practical administration of justice dictates the application
of res ipsa loquitur. Upon these facts and under these circumstances the Court would be able to say, as a matter of common
knowledge and observation, if negligence attended the management and care of the patient. Moreover, the liability of the physicians
and the hospital in this case is not predicated upon an alleged failure to secure the desired results of an operation nor on an alleged
lack of skill in the diagnosis or treatment as in fact no operation or treatment was ever performed on Erlinda. Thus, upon all these initial
determination a case is made out for the application of the doctrine of res ipsa loquitur.
Nonetheless, in holding that res ipsa loquitur is available to the present case we are not saying that the doctrine is applicable in any and
all cases where injury occurs to a patient while under anesthesia, or to any and all anesthesia cases. Each case must be viewed in its
own light and scrutinized in order to be within the res ipsa loquitur coverage.

Having in mind the applicability of the res ipsa loquitur doctrine and the presumption of negligence allowed therein, the Court now
comes to the issue of whether the Court of Appeals erred in finding that private respondents were not negligent in the care of Erlinda
during the anesthesia phase of the operation and, if in the affirmative, whether the alleged negligence was the proximate cause of
Erlinda's comatose condition. Corollary thereto, we shall also determine if the Court of Appeals erred in relying on the testimonies of the
witnesses for the private respondents.

In sustaining the position of private respondents, the Court of Appeals relied on the testimonies of Dra. Gutierrez, Dra. Calderon and Dr.
Jamora. In giving weight to the testimony of Dra. Gutierrez, the Court of Appeals rationalized that she was candid enough to admit that
she experienced some difficulty in the endotracheal intubation 45 of the patient and thus, cannot be said to be covering her negligence
with falsehood. The appellate court likewise opined that private respondents were able to show that the brain damage sustained by
Erlinda was not caused by the alleged faulty intubation but was due to the allergic reaction of the patient to the drug Thiopental Sodium
(Pentothal), a short-acting barbiturate, as testified on by their expert witness, Dr. Jamora. On the other hand, the appellate court
rejected the testimony of Dean Herminda Cruz offered in favor of petitioners that the cause of the brain injury was traceable to the
wrongful insertion of the tube since the latter, being a nurse, was allegedly not knowledgeable in the process of intubation. In so
holding, the appellate court returned a verdict in favor of respondents physicians and hospital and absolved them of any liability towards
Erlinda and her family.

We disagree with the findings of the Court of Appeals. We hold that private respondents were unable to disprove the presumption of
negligence on their part in the care of Erlinda and their negligence was the proximate cause of her piteous condition.

In the instant case, the records are helpful in furnishing not only the logical scientific evidence of the pathogenesis of the injury but also
in providing the Court the legal nexus upon which liability is based. As will be shown hereinafter, private respondents' own testimonies
which are reflected in the transcript of stenographic notes are replete of signposts indicative of their negligence in the care and
management of Erlinda.

With regard to Dra. Gutierrez, we find her negligent in the care of Erlinda during the anesthesia phase. As borne by the records,
respondent Dra. Gutierrez failed to properly intubate the patient. This fact was attested to by Prof. Herminda Cruz, Dean of the Capitol
Medical Center School of Nursing and petitioner's sister-in-law, who was in the operating room right beside the patient when the tragic
event occurred. Witness Cruz testified to this effect:

ATTY. PAJARES:

Q: In particular, what did Dra. Perfecta Gutierrez do, if any on the patient?

A: In particular, I could see that she was intubating the patient.

Q: Do you know what happened to that intubation process administered by Dra. Gutierrez?

ATTY. ALCERA:

She will be incompetent Your Honor.

COURT:

Witness may answer if she knows.

A: As have said, I was with the patient, I was beside the stretcher holding the left hand of the
patient and all of a sudden heard some remarks coming from Dra. Perfecta Gutierrez herself. She
was saying "Ang hirap ma-intubate nito, mali yata ang pagkakapasok. O lumalaki ang tiyan.

x x x           x x x          x x x

ATTY. PAJARES:

Q: From whom did you hear those words "lumalaki ang tiyan"?

A: From Dra. Perfecta Gutierrez.

 x x x           x x x          x x x

Q: After hearing the phrase "lumalaki ang tiyan," what did you notice on the person of the patient?

A: I notice (sic) some bluish discoloration on the nailbeds of the left hand where I was at.

Q: Where was Dr. Orlino Ho[s]aka then at that particular time?

A: I saw him approaching the patient during that time.

Q: When he approached the patient, what did he do, if any?

A: He made an order to call on the anesthesiologist in the person of Dr. Calderon.

Q: Did Dr. Calderon, upon being called, arrive inside the operating room?

A: Yes sir.

Q: What did [s]he do, if any?

A: [S]he tried to intubate the patient.

Q: What happened to the patient?

A: When Dr. Calderon try (sic) to intubate the patient, after a while the patient's nailbed became
bluish and I saw the patient was placed in trendelenburg position.

x x x           x x x          x x x

Q: Do you know the reason why the patient was placed in that trendelenburg position?

A: As far as I know, when a patient is in that position, there is a decrease of blood supply to the
brain. 46

x x x           x x x          x x x

The appellate court, however, disbelieved Dean Cruz's testimony in the trial court by declaring that:

A perusal of the standard nursing curriculum in our country will show that intubation is not taught as part of nursing
procedures and techniques. Indeed, we take judicial notice of the fact that nurses do not, and cannot, intubate. Even
on the assumption that she is fully capable of determining whether or not a patient is properly intubated, witness
Herminda Cruz, admittedly, did not peep into the throat of the patient. (TSN, July 25, 1991, p. 13). More importantly,
there is no evidence that she ever auscultated the patient or that she conducted any type of examination to check if
the endotracheal tube was in its proper place, and to determine the condition of the heart, lungs, and other organs.
Thus, witness Cruz's categorical statements that appellant Dra. Gutierrez failed to intubate the appellee Erlinda
Ramos and that it was Dra. Calderon who succeeded in doing so clearly suffer from lack of sufficient factual bases. 47

In other words, what the Court of Appeals is trying to impress is that being a nurse, and considered a layman in the process of
intubation, witness Cruz is not competent to testify on whether or not the intubation was a success.

We do not agree with the above reasoning of the appellate court. Although witness Cruz is not an anesthesiologist, she can very well
testify upon matters on which she is capable of observing such as, the statements and acts of the physician and surgeon, external
appearances, and manifest conditions which are observable by any one. 48 This is precisely allowed under the doctrine of res ipsa
loquitur where the testimony of expert witnesses is not required. It is the accepted rule that expert testimony is not necessary for the
proof of negligence in non-technical matters or those of which an ordinary person may be expected to have knowledge, or where the
lack of skill or want of care is so obvious as to render expert testimony unnecessary. 49 We take judicial notice of the fact that
anesthesia procedures have become so common, that even an ordinary person can tell if it was administered properly. As such, it
would not be too difficult to tell if the tube was properly inserted. This kind of observation, we believe, does not require a medical degree
to be acceptable.

At any rate, without doubt, petitioner's witness, an experienced clinical nurse whose long experience and scholarship led to her
appointment as Dean of the Capitol Medical Center School at Nursing, was fully capable of determining whether or not the intubation
was a success. She had extensive clinical experience starting as a staff nurse in Chicago, Illinois; staff nurse and clinical instructor in a
teaching hospital, the FEU-NRMF; Dean of the Laguna College of Nursing in San Pablo City; and then Dean of the Capitol Medical
Center School of Nursing. 50 Reviewing witness Cruz' statements, we find that the same were delivered in a straightforward manner,
with the kind of detail, clarity, consistency and spontaneity which would have been difficult to fabricate. With her clinical background as
a nurse, the Court is satisfied that she was able to demonstrate through her testimony what truly transpired on that fateful day.

Most of all, her testimony was affirmed by no less than respondent Dra. Gutierrez who admitted that she experienced difficulty in
inserting the tube into Erlinda's trachea, to wit:

ATTY. LIGSAY:
Q: In this particular case, Doctora, while you were intubating at your first attempt (sic), you did not
immediately see the trachea?
DRA. GUTIERREZ:
A: Yes sir.
Q: Did you pull away the tube immediately?
A: You do not pull the . . .
Q: Did you or did you not?
A: I did not pull the tube.
Q: When you said "mahirap yata ito," what were you referring to?
A: "Mahirap yata itong i-intubate," that was the patient.
Q: So, you found some difficulty in inserting the tube?
A: Yes, because of (sic) my first attempt, I did not see right away. 51
Curiously in the case at bar, respondent Dra. Gutierrez made the haphazard defense that she encountered hardship in the insertion of
the tube in the trachea of Erlinda because it was positioned more anteriorly (slightly deviated from the normal anatomy of a
person) 52 making it harder to locate and, since Erlinda is obese and has a short neck and protruding teeth, it made intubation even
more difficult.

The argument does not convince us. If this was indeed observed, private respondents adduced no evidence demonstrating that they
proceeded to make a thorough assessment of Erlinda's airway, prior to the induction of anesthesia, even if this would mean postponing
the procedure. From their testimonies, it appears that the observation was made only as an afterthought, as a means of defense.

The pre-operative evaluation of a patient prior to the administration of anesthesia is universally observed to lessen the possibility of
anesthetic accidents. Pre-operative evaluation and preparation for anesthesia begins when the anesthesiologist reviews the patient's
medical records and visits with the patient, traditionally, the day before elective surgery. 53 It includes taking the patient's medical
history, review of current drug therapy, physical examination and interpretation of laboratory data. 54 The physical examination
performed by the anesthesiologist is directed primarily toward the central nervous system, cardiovascular system, lungs and upper
airway. 55 A thorough analysis of the patient's airway normally involves investigating the following: cervical spine mobility,
temporomandibular mobility, prominent central incisors, diseased or artificial teeth, ability to visualize uvula and the thyromental
distance. 56 Thus, physical characteristics of the patient's upper airway that could make tracheal intubation difficult should be
studied. 57 Where the need arises, as when initial assessment indicates possible problems (such as the alleged short neck and
protruding teeth of Erlinda) a thorough examination of the patient's airway would go a long way towards decreasing patient morbidity
and mortality.

In the case at bar, respondent Dra. Gutierrez admitted that she saw Erlinda for the first time on the day of the operation itself, on 17
June 1985. Before this date, no prior consultations with, or pre-operative evaluation of Erlinda was done by her. Until the day of the
operation, respondent Dra. Gutierrez was unaware of the physiological make-up and needs of Erlinda. She was likewise not properly
informed of the possible difficulties she would face during the administration of anesthesia to Erlinda. Respondent Dra. Gutierrez' act of
seeing her patient for the first time only an hour before the scheduled operative procedure was, therefore, an act of exceptional
negligence and professional irresponsibility. The measures cautioning prudence and vigilance in dealing with human lives lie at the core
of the physician's centuries-old Hippocratic Oath. Her failure to follow this medical procedure is, therefore, a clear indicia of her
negligence.

Respondent Dra. Gutierrez, however, attempts to gloss over this omission by playing around with the trial court's ignorance of clinical
procedure, hoping that she could get away with it. Respondent Dra. Gutierrez tried to muddle the difference between an elective
surgery and an emergency surgery just so her failure to perform the required pre-operative evaluation would escape unnoticed. In her
testimony she asserted:

ATTY. LIGSAY:

Q: Would you agree, Doctor, that it is good medical practice to see the patient a day before so you
can introduce yourself to establish good doctor-patient relationship and gain the trust and
confidence of the patient?

DRA. GUTIERREZ:
 A: As I said in my previous statement, it depends on the operative procedure of the
anesthesiologist and in my case, with elective cases and normal cardio-pulmonary clearance like
that, I usually don't do it except on emergency and on cases that have an abnormalities (sic). 58

However, the exact opposite is true. In an emergency procedure, there is hardly enough time available for the fastidious demands of
pre-operative procedure so that an anesthesiologist is able to see the patient only a few minutes before surgery, if at all. Elective
procedures, on the other hand, are operative procedures that can wait for days, weeks or even months. Hence, in these cases, the
anesthesiologist possesses the luxury of time to be at the patient's beside to do a proper interview and clinical evaluation. There is
ample time to explain the method of anesthesia, the drugs to be used, and their possible hazards for purposes of informed consent.
Usually, the pre-operative assessment is conducted at least one day before the intended surgery, when the patient is relaxed and
cooperative.

Erlinda's case was elective and this was known to respondent Dra. Gutierrez. Thus, she had all the time to make a thorough evaluation
of Erlinda's case prior to the operation and prepare her for anesthesia. However, she never saw the patient at the bedside. She herself
admitted that she had seen petitioner only in the operating room, and only on the actual date of the cholecystectomy. She negligently
failed to take advantage of this important opportunity. As such, her attempt to exculpate herself must fail.

Having established that respondent Dra. Gutierrez failed to perform pre-operative evaluation of the patient which, in turn, resulted to a
wrongful intubation, we now determine if the faulty intubation is truly the proximate cause of Erlinda's comatose condition.

Private respondents repeatedly hammered the view that the cerebral anoxia which led to Erlinda's coma was due to
bronchospasm 59 mediated by her allergic response to the drug, Thiopental Sodium, introduced into her system. Towards this end, they
presented Dr. Jamora, a Fellow of the Philippine College of Physicians and Diplomate of the Philippine Specialty Board of Internal
Medicine, who advanced private respondents' theory that the oxygen deprivation which led to anoxic encephalopathy, 60 was due to an
unpredictable drug reaction to the short-acting barbiturate. We find the theory of private respondents unacceptable.

First of all, Dr. Jamora cannot be considered an authority in the field of anesthesiology simply because he is not an anesthesiologist.
Since Dr. Jamora is a pulmonologist, he could not have been capable of properly enlightening the court about anesthesia practice and
procedure and their complications. Dr. Jamora is likewise not an allergologist and could not therefore properly advance expert opinion
on allergic-mediated processes. Moreover, he is not a pharmacologist and, as such, could not have been capable, as an expert would,
of explaining to the court the pharmacologic and toxic effects of the supposed culprit, Thiopental Sodium (Pentothal).

The inappropriateness and absurdity of accepting Dr. Jamora's testimony as an expert witness in the anesthetic practice of Pentothal
administration is further supported by his own admission that he formulated his opinions on the drug not from the practical experience
gained by a specialist or expert in the administration and use of Sodium Pentothal on patients, but only from reading certain references,
to wit:

ATTY. LIGSAY:
Q: In your line of expertise on pulmonology, did you have any occasion to use pentothal as a
method of management?
DR. JAMORA:
A: We do it in conjunction with the anesthesiologist when they have to intubate our patient.
Q: But not in particular when you practice pulmonology?
A: No.
Q: In other words, your knowledge about pentothal is based only on what you have read from
books and not by your own personal application of the medicine pentothal?
A: Based on my personal experience also on pentothal.
Q: How many times have you used pentothal?
A: They used it on me. I went into bronchospasm during my appendectomy.
Q: And because they have used it on you and on account of your own personal experience you feel
that you can testify on pentothal here with medical authority?
A: No. That is why I used references to support my claims. 61
An anesthetic accident caused by a rare drug-induced bronchospasm properly falls within the fields of anesthesia, internal medicine-
allergy, and clinical pharmacology. The resulting anoxic encephalopathy belongs to the field of neurology. While admittedly, many
bronchospastic-mediated pulmonary diseases are within the expertise of pulmonary medicine, Dr. Jamora's field, the anesthetic drug-
induced, allergic mediated bronchospasm alleged in this case is within the disciplines of anesthesiology, allergology and pharmacology.
On the basis of the foregoing transcript, in which the pulmonologist himself admitted that he could not testify about the drug with
medical authority, it is clear that the appellate court erred in giving weight to Dr. Jamora's testimony as an expert in the administration of
Thiopental Sodium.

The provision in the rules of evidence 62 regarding expert witnesses states:

Sec. 49. Opinion of expert witness. — The opinion of a witness on a matter requiring special knowledge, skill,
experience or training which he is shown to possess, may be received in evidence.
Generally, to qualify as an expert witness, one must have acquired special knowledge of the subject matter about which he or she is to
testify, either by the study of recognized authorities on the subject or by practical experience. 63 Clearly, Dr. Jamora does not qualify as
an expert witness based on the above standard since he lacks the necessary knowledge, skill, and training in the field of
anesthesiology. Oddly, apart from submitting testimony from a specialist in the wrong field, private respondents' intentionally avoided
providing testimony by competent and independent experts in the proper areas.

Moreover, private respondents' theory, that Thiopental Sodium may have produced Erlinda's coma by triggering an allergic mediated
response, has no support in evidence. No evidence of stridor, skin reactions, or wheezing — some of the more common accompanying
signs of an allergic reaction — appears on record. No laboratory data were ever presented to the court.

In any case, private respondents themselves admit that Thiopental induced, allergic-mediated bronchospasm happens only very rarely.
If courts were to accept private respondents' hypothesis without supporting medical proof, and against the weight of available evidence,
then every anesthetic accident would be an act of God. Evidently, the Thiopental-allergy theory vigorously asserted by private
respondents was a mere afterthought. Such an explanation was advanced in order to advanced in order to absolve them of any and all
responsibility for the patient's condition.

In view of the evidence at hand, we are inclined to believe petitioners' stand that it was the faulty intubation which was the proximate
cause of Erlinda's comatose condition.

Proximate cause has been defined as that which, in natural and continuous sequence, unbroken by any efficient intervening cause,
produces injury, and without which the result would not have occurred. 64 An injury or damage is proximately caused by an act or a
failure to act, whenever it appears from the evidence in the case, that the act or omission played a substantial part in bringing about or
actually causing the injury or damage; and that the injury or damage was either a direct result or a reasonably probable consequence of
the act or omission. 65 It is the dominant, moving or producing cause.

Applying the above definition in relation to the evidence at hand, faulty intubation is undeniably the proximate cause which triggered the
chain of events leading to Erlinda's brain damage and, ultimately, her comatosed condition.

Private respondents themselves admitted in their testimony that the first intubation was a failure. This fact was likewise observed by
witness Cruz when she heard respondent Dra. Gutierrez remarked, "Ang hirap ma-intubate nito, mali yata ang pagkakapasok. O
lumalaki ang tiyan." Thereafter, witness Cruz noticed abdominal distention on the body of Erlinda. The development of abdominal
distention, together with respiratory embarrassment indicates that the endotracheal tube entered the esophagus instead of the
respiratory tree. In other words, instead of the intended endotracheal intubation what actually took place was an esophageal intubation.
During intubation, such distention indicates that air has entered the gastrointestinal tract through the esophagus instead of the lungs
through the trachea. Entry into the esophagus would certainly cause some delay in oxygen delivery into the lungs as the tube which
carries oxygen is in the wrong place. That abdominal distention had been observed during the first intubation suggests that the length
of time utilized in inserting the endotracheal tube (up to the time the tube was withdrawn for the second attempt) was fairly significant.
Due to the delay in the delivery of oxygen in her lungs Erlinda showed signs of cyanosis. 66 As stated in the testimony of Dr. Hosaka,
the lack of oxygen became apparent only after he noticed that the nailbeds of Erlinda were already blue. 67 However, private
respondents contend that a second intubation was executed on Erlinda and this one was successfully done. We do not think so. No
evidence exists on record, beyond private respondents' bare claims, which supports the contention that the second intubation was
successful. Assuming that the endotracheal tube finally found its way into the proper orifice of the trachea, the same gave no guarantee
of oxygen delivery, the hallmark of a successful intubation. In fact, cyanosis was again observed immediately after the second
intubation. Proceeding from this event (cyanosis), it could not be claimed, as private respondents insist, that the second intubation was
accomplished. Even granting that the tube was successfully inserted during the second attempt, it was obviously too late. As aptly
explained by the trial court, Erlinda already suffered brain damage as a result of the inadequate oxygenation of her brain for about four
to five minutes. 68

The above conclusion is not without basis. Scientific studies point out that intubation problems are responsible for one-third (1/3) of
deaths and serious injuries associated with anesthesia. 69 Nevertheless, ninety-eight percent (98%) or the vast majority of difficult
intubations may be anticipated by performing a thorough evaluation of the patient's airway prior to the operation. 70 As stated
beforehand, respondent Dra. Gutierrez failed to observe the proper pre-operative protocol which could have prevented this unfortunate
incident. Had appropriate diligence and reasonable care been used in the pre-operative evaluation, respondent physician could have
been much more prepared to meet the contingency brought about by the perceived anatomic variations in the patient's neck and oral
area, defects which would have been easily overcome by a prior knowledge of those variations together with a change in
technique. 71 In other words, an experienced anesthesiologist, adequately alerted by a thorough pre-operative evaluation, would have
had little difficulty going around the short neck and protruding teeth. 72 Having failed to observe common medical standards in pre-
operative management and intubation, respondent Dra. Gutierrez' negligence resulted in cerebral anoxia and eventual coma of Erlinda.

We now determine the responsibility of respondent Dr. Orlino Hosaka as the head of the surgical team. As the so-called "captain of the
ship," 73 it is the surgeon's responsibility to see to it that those under him perform their task in the proper manner. Respondent Dr.
Hosaka's negligence can be found in his failure to exercise the proper authority (as the "captain" of the operative team) in not
determining if his anesthesiologist observed proper anesthesia protocols. In fact, no evidence on record exists to show that respondent
Dr. Hosaka verified if respondent Dra. Gutierrez properly intubated the patient. Furthermore, it does not escape us that respondent Dr.
Hosaka had scheduled another procedure in a different hospital at the same time as Erlinda's cholecystectomy, and was in fact over
three hours late for the latter's operation. Because of this, he had little or no time to confer with his anesthesiologist regarding the
anesthesia delivery. This indicates that he was remiss in his professional duties towards his patient. Thus, he shares equal
responsibility for the events which resulted in Erlinda's condition.

We now discuss the responsibility of the hospital in this particular incident. The unique practice (among private hospitals) of filling up
specialist staff with attending and visiting "consultants," 74 who are allegedly not hospital employees, presents problems in apportioning
responsibility for negligence in medical malpractice cases. However, the difficulty is only more apparent than real.

In the first place, hospitals exercise significant control in the hiring and firing of consultants and in the conduct of their work within the
hospital premises. Doctors who apply for "consultant" slots, visiting or attending, are required to submit proof of completion of
residency, their educational qualifications; generally, evidence of accreditation by the appropriate board (diplomate), evidence of
fellowship in most cases, and references. These requirements are carefully scrutinized by members of the hospital administration or by
a review committee set up by the hospital who either accept or reject the application. 75 This is particularly true with respondent hospital.

After a physician is accepted, either as a visiting or attending consultant, he is normally required to attend clinico-pathological
conferences, conduct bedside rounds for clerks, interns and residents, moderate grand rounds and patient audits and perform other
tasks and responsibilities, for the privilege of being able to maintain a clinic in the hospital, and/or for the privilege of admitting patients
into the hospital. In addition to these, the physician's performance as a specialist is generally evaluated by a peer review committee on
the basis of mortality and morbidity statistics, and feedback from patients, nurses, interns and residents. A consultant remiss in his
duties, or a consultant who regularly falls short of the minimum standards acceptable to the hospital or its peer review committee, is
normally politely terminated.

In other words, private hospitals, hire, fire and exercise real control over their attending and visiting "consultant" staff. While
"consultants" are not, technically employees, a point which respondent hospital asserts in denying all responsibility for the patient's
condition, the control exercised, the hiring, and the right to terminate consultants all fulfill the important hallmarks of an employer-
employee relationship, with the exception of the payment of wages. In assessing whether such a relationship in fact exists, the control
test is determining. Accordingly, on the basis of the foregoing, we rule that for the purpose of allocating responsibility in medical
negligence cases, an employer-employee relationship in effect exists between hospitals and their attending and visiting physicians. This
being the case, the question now arises as to whether or not respondent hospital is solidarily liable with respondent doctors for
petitioner's condition. 76

The basis for holding an employer solidarily responsible for the negligence of its employee is found in Article 2180 of the Civil Code
which considers a person accountable not only for his own acts but also for those of others based on the former's responsibility under a
relationship of patria potestas. 77 Such responsibility ceases when the persons or entity concerned prove that they have observed the
diligence of a good father of the family to prevent damage. 78 In other words, while the burden of proving negligence rests on the
plaintiffs, once negligence is shown, the burden shifts to the respondents (parent, guardian, teacher or employer) who should prove that
they observed the diligence of a good father of a family to prevent damage.

In the instant case, respondent hospital, apart from a general denial of its responsibility over respondent physicians, failed to adduce
evidence showing that it exercised the diligence of a good father of a family in the hiring and supervision of the latter. It failed to adduce
evidence with regard to the degree of supervision which it exercised over its physicians. In neglecting to offer such proof, or proof of a
similar nature, respondent hospital thereby failed to discharge its burden under the last paragraph of Article 2180. Having failed to do
this, respondent hospital is consequently solidarily responsible with its physicians for Erlinda's condition.

Based on the foregoing, we hold that the Court of Appeals erred in accepting and relying on the testimonies of the witnesses for the
private respondents. Indeed, as shown by the above discussions, private respondents were unable to rebut the presumption of
negligence. Upon these disquisitions we hold that private respondents are solidarily liable for damages under Article 2176 79 of the Civil
Code.

We now come to the amount of damages due petitioners. The trial court awarded a total of P632,000.00 pesos (should be
P616,000.00) in compensatory damages to the plaintiff, "subject to its being updated" covering the period from 15 November 1985 up
to 15 April 1992, based on monthly expenses for the care of the patient estimated at P8,000.00.

At current levels, the P8000/monthly amount established by the trial court at the time of its decision would be grossly inadequate to
cover the actual costs of home-based care for a comatose individual. The calculated amount was not even arrived at by looking at the
actual cost of proper hospice care for the patient. What it reflected were the actual expenses incurred and proved by the petitioners
after they were forced to bring home the patient to avoid mounting hospital bills.

And yet ideally, a comatose patient should remain in a hospital or be transferred to a hospice specializing in the care of the chronically
ill for the purpose of providing a proper milieu adequate to meet minimum standards of care. In the instant case for instance, Erlinda
has to be constantly turned from side to side to prevent bedsores and hypostatic pneumonia. Feeding is done by nasogastric tube.
Food preparation should be normally made by a dietitian to provide her with the correct daily caloric requirements and vitamin
supplements. Furthermore, she has to be seen on a regular basis by a physical therapist to avoid muscle atrophy, and by a pulmonary
therapist to prevent the accumulation of secretions which can lead to respiratory complications.
Given these considerations, the amount of actual damages recoverable in suits arising from negligence should at least reflect the
correct minimum cost of proper care, not the cost of the care the family is usually compelled to undertake at home to avoid bankruptcy.
However, the provisions of the Civil Code on actual or compensatory damages present us with some difficulties.

Well-settled is the rule that actual damages which may be claimed by the plaintiff are those suffered by him as he has duly proved. The
Civil Code provides:

Art. 2199. — Except as provided by law or by stipulation, one is entitled to an adequate compensation only for such
pecuniary loss suffered by him as he has duly proved. Such compensation is referred to as actual or compensatory
damages.

Our rules on actual or compensatory damages generally assume that at the time of litigation, the injury suffered as a consequence of
an act of negligence has been completed and that the cost can be liquidated. However, these provisions neglect to take into account
those situations, as in this case, where the resulting injury might be continuing and possible future complications directly arising from
the injury, while certain to occur, are difficult to predict.

In these cases, the amount of damages which should be awarded, if they are to adequately and correctly respond to the injury caused,
should be one which compensates for pecuniary loss incurred and proved, up to the time of trial; and one which would meet pecuniary
loss certain to be suffered but which could not, from the nature of the case, be made with certainty. 80 In other words, temperate
damages can and should be awarded on top of actual or compensatory damages in instances where the injury is chronic and
continuing. And because of the unique nature of such cases, no incompatibility arises when both actual and temperate damages are
provided for. The reason is that these damages cover two distinct phases.

As it would not be equitable — and certainly not in the best interests of the administration of justice — for the victim in such cases to
constantly come before the courts and invoke their aid in seeking adjustments to the compensatory damages previously awarded —
temperate damages are appropriate. The amount given as temperate damages, though to a certain extent speculative, should take into
account the cost of proper care.

In the instant case, petitioners were able to provide only home-based nursing care for a comatose patient who has remained in that
condition for over a decade. Having premised our award for compensatory damages on the amount provided by petitioners at the onset
of litigation, it would be now much more in step with the interests of justice if the value awarded for temperate damages would allow
petitioners to provide optimal care for their loved one in a facility which generally specializes in such care. They should not be
compelled by dire circumstances to provide substandard care at home without the aid of professionals, for anything less would be
grossly inadequate. Under the circumstances, an award of P1,500,000.00 in temperate damages would therefore be reasonable. 81

In Valenzuela vs. Court of Appeals, 82 this Court was confronted with a situation where the injury suffered by the plaintiff would have led
to expenses which were difficult to estimate because while they would have been a direct result of the injury (amputation), and were
certain to be incurred by the plaintiff, they were likely to arise only in the future. We awarded P1,000,000.00 in moral damages in that
case.

Describing the nature of the injury, the Court therein stated:

As a result of the accident, Ma. Lourdes Valenzuela underwent a traumatic amputation of her left lower extremity at
the distal left thigh just above the knee. Because of this, Valenzuela will forever be deprived of the full ambulatory
functions of her left extremity, even with the use of state of the art prosthetic technology. Well beyond the period of
hospitalization (which was paid for by Li), she will be required to undergo adjustments in her prosthetic devise due to
the shrinkage of the stump from the process of healing.

These adjustments entail costs, prosthetic replacements and months of physical and occupational rehabilitation and
therapy. During the lifetime, the prosthetic devise will have to be replaced and readjusted to changes in the size of
her lower limb effected by the biological changes of middle-age, menopause and aging. Assuming she reaches
menopause, for example, the prosthetic will have to be adjusted to respond to the changes in bone resulting from a
precipitate decrease in calcium levels observed in the bones of all post-menopausal women. In other words, the
damage done to her would not only be permanent and lasting, it would also be permanently changing and adjusting
to the physiologic changes which her body would normally undergo through the years. The replacements, changes,
and adjustments will require corresponding adjustive physical and occupational therapy. All of these adjustments, it
has been documented, are painful.

x x x           x x x          x x x

A prosthetic devise, however technologically advanced, will only allow a reasonable amount of functional restoration
of the motor functions of the lower limb. The sensory functions are forever lost. The resultant anxiety, sleeplessness,
psychological injury, mental and physical pain are inestimable. 83
The injury suffered by Erlinda as a consequence of private respondents' negligence is certainly much more serious than the amputation
in the Valenzuela case.

Petitioner Erlinda Ramos was in her mid-forties when the incident occurred. She has been in a comatose state for over fourteen years
now. The burden of care has so far been heroically shouldered by her husband and children, who, in the intervening years have been
deprived of the love of a wife and a mother.

Meanwhile, the actual physical, emotional and financial cost of the care of petitioner would be virtually impossible to quantify. Even the
temperate damages herein awarded would be inadequate if petitioner's condition remains unchanged for the next ten years.

We recognized, in Valenzuela that a discussion of the victim's actual injury would not even scratch the surface of the resulting moral
damage because it would be highly speculative to estimate the amount of emotional and moral pain, psychological damage and injury
suffered by the victim or those actually affected by the victim's condition. 84 The husband and the children, all petitioners in this case,
will have to live with the day to day uncertainty of the patient's illness, knowing any hope of recovery is close to nil. They have
fashioned their daily lives around the nursing care of petitioner, altering their long term goals to take into account their life with a
comatose patient. They, not the respondents, are charged with the moral responsibility of the care of the victim. The family's moral
injury and suffering in this case is clearly a real one. For the foregoing reasons, an award of P2,000,000.00 in moral damages would be
appropriate.

Finally, by way of example, exemplary damages in the amount of P100,000.00 are hereby awarded. Considering the length and nature
of the instant suit we are of the opinion that attorney's fees valued at P100,000.00 are likewise proper.

Our courts face unique difficulty in adjudicating medical negligence cases because physicians are not insurers of life and, they rarely
set out to intentionally cause injury or death to their patients. However, intent is immaterial in negligence cases because where
negligence exists and is proven, the same automatically gives the injured a right to reparation for the damage caused.

Established medical procedures and practices, though in constant flux are devised for the purpose of preventing complications. A
physician's experience with his patients would sometimes tempt him to deviate from established community practices, and he may end
a distinguished career using unorthodox methods without incident. However, when failure to follow established procedure results in the
evil precisely sought to be averted by observance of the procedure and a nexus is made between the deviation and the injury or
damage, the physician would necessarily be called to account for it. In the case at bar, the failure to observe pre-operative assessment
protocol which would have influenced the intubation in a salutary way was fatal to private respondents' case.

WHEREFORE, the decision and resolution of the appellate court appealed from are hereby modified so as to award in favor of
petitioners, and solidarily against private respondents the following: 1) P1,352,000.00 as actual damages computed as of the date of
promulgation of this decision plus a monthly payment of P8,000.00 up to the time that petitioner Erlinda Ramos expires or miraculously
survives; 2) P2,000,000.00 as moral damages, 3) P1,500,000.00 as temperate damages; 4) P100,000.00 each as exemplary damages
and attorney's fees; and, 5) the costs of the suit.

SO ORDERED.
G.R. No. L-87584 June 16, 1992

GOTESCO INVESTMENT CORPORATION, petitioner,

vs.
GLORIA E. CHATTO and LINA DELZA CHATTO, respondents.

DAVIDE. JR., J.:

Assailed in this petition for review under Rule 45 of the Rules of Court are both the Decision 1 promulgated on 27 July 1988 and the
Resolution dated 14 March 1989 2 of the respondent Court of Appeals in CA-G.R. CV No. 09699 which, respectively affirmed in toto the
decision of Branch XXI of the Regional Trial Court of Cebu in Civil Case No. R-22567 entitled  "Gloria Chatto, et al. versus Gotesco
Investment Corporation", and denied petitioner's motion to reconsider the same.

The trial court ordered the defendant, herein petitioners to pay the plaintiff Lina Delza E. Chatto the sum of P10,000.00 as moral
damages and the plaintiff Gloria E. Chatto the sum of P49,050.00 as actual and consequential damages, P75,000.00 as moral
damages and P20,000.00 as attorney's fees, plus the cost of the suit. These awards, except for the attorney's fees, were to earn
interest at the rate of twelve per cent (12%) per annum beginning from the date the complaint was filed, 16 November 1982, until the
amounts were fully paid.

The antecedent facts, as found by the trial court and affirmed by the respondent Court, are summarized by the latter in the challenged
decision as follows:

The evidence shows that in the afternoon of June 4, 1982 plaintiff Gloria E. Chatto, and her 15-year old daughter,
plaintiff Lina Delza E. Chatto went to see the movie "Mother Dear" at Superama I theater, owned by defendant
Gotesco Investment Corporation. They bought balcony tickets but even then were unable to find seats considering
the number of people patronizing the movie. Hardly ten (10) minutes after entering the theater, the ceiling of its
balcony collapsed. The theater was plunged into darkness and pandemonium ensued. Shocked and hurt, plaintiffs
managed to crawl under the fallen ceiling. As soon as they were able to get out to the street they walked the nearby
FEU Hospital where they were confined and treated for one (1) day.

The next day, they transferred to the UST hospital. Plaintiff Gloria Chatto was treated in said hospital from June 5 to
June 19 and plaintiff Lina Delza Chatto from June 5 to 11. Per Medico Legal Certificate (Exh, "C") issued by Dr.
Ernesto G. Brion, plaintiff Lina Delza Chatto suffered the following injuries:

Physical injuries:

Contusions:

forehead and drental region, scalp left with hematoma; chest anterior upper
bilateral; back right, scapular region; back, mid-portion, thoraco-lumbar regions,
bilateral

Abrasions:

back lumbar region, horizontal, across midline, from left to right; hand right, palm,
near wrist; hand left, index finger, dorsum, proximal phalanx.

Conclusion, cerebral.

X-Ray — Skull; Thoraco-lumbar

region — All negative.

CONCLUSIONS

1. Physical injuries rioted on the subject.

2. That under normal condition in the absence of complication,

said physical injuries will require medical attendance and/or
incapacitate the subject for a period of from two to four weeks.
 On the other hand, the findings on plaintiff Gloria Chatto per Medico Legal Certificate (Exh. "D") of Dr. Brion are as
follows:

xxx xxx xxx

Physical injuries:

Lacerated wounds:

scalp vertex, running across suggittal line, from left to right, 3.0 cm sutured;

Contusion, forearm right, anterior aspect, upper third.

Abrasions:

Shoulder and upper third, arm right, posterior aspect, linear; backright, scapular
region, two in number, linear; elbow right, posterior aspect; forearm right, anterior
aspect, middle third.

Concusion (sic), cerebral.

X-Ray — Skull — Negative.

Cervical spines Straightening of cervical spine, probably to muscular spasm.

CONCLUSIONS:

1. Physical injuries noted on subject.

2. That under normal condition, in the absence of complication, said physical injuries will require
medical attendance and/or incapacitate the subject for a period of from two to four weeks.

Due to continuing pain in the neck, headache and dizziness, plaintiff went to Illinois, USA in July 1982 for further
treatment (Exh "E"). She was treated at the Cook County Hospital in Chicago, Illinois. She stayed in the U.S. for
about three (3) months during which time she had to return to the Cook County Hospital five (5) or, six (6) times.

Defendant tried to avoid liability by alleging that the collapse of the ceiling of its theater was done due to  force
majeure. It maintained that its theater did not suffer from any structural or construction defect. (Exh. 1, 2, 3, 4, & 5)3

In justifying its award of actual or compensatory and moral damages and attorney's fees, the trial court said:

It has been established thru the uncontradicted testimony of Mrs. Chatto that during the chaos and confusion at the
theater she lost a pair of earrings worth P2,500 and the sum of P1,000.00 in cash contained in her wallet which was
lost; and that she incurred the following expenses: P500.00 as transportation fare from Cebu City to Manila on the
first leg of her trip to the United States; P350.00 for her passport; and P46,978.00 for her expense relative to her
treatment in the United States, including the cost of a round-trip ticket (P11,798.00) hospital and medical bills and
other attendant expenses. The total is P51,328.00, which is more than the sum of P49,050.00 claimed in the
complaint, hence should be reduced accordingly.

The same testimony has also established that Mrs. Chatto contracted to pay her counsel the sum of P20,000.00,
which this court considers reasonable considering, among other things, the professional standing of work (sic)
involved in the prosecution of this case. Such award of attorney's fees is proper because the defendant's omission to
provide the plaintiffs proper and adequate safeguard to life and limb which they deserved as patrons to (sic) its
theater had compelled the plaintiffs to hire the services of a counsel, file this case and prosecute it, thus incurring
expenses to protect their interest.

The plaintiffs are entitled to moral damages, which are the direct and proximate result of the defendants gross
negligence and omission. Such moral damages include the plaintiffs' physical suffering, mental anguish, fright and
serious anxiety. On the part of Mrs. Chatto, who obviously suffered much more pain, anguish, fright and anxiety than
her daughter Lina Delza, such damages are compounded by the presence of permanent deformities on her body
consisting of a 6-inch scar on the head and a 2-inch scar on one arm. The court believes that the sum of P75,000.00
for plaintiff Gloria E. Chatto and the sum of P10,000.00 for plaintiff Lina Delza E. Chatto would be reasonable. 4
Petitioner submitted before the respondent Court the following assignment of errors:

I. THE LOWER COURT ERRED IN ADMITTING PATENTLY — INADMISSIBLE EVIDENCE PRESENTED BY

PLAINTIFF-APPELLEES AND IN GIVING LESS PROBATIVE VALUE TO PUBLIC DOCUMENTS AND
CERTIFICATIONS OF THE CONDITION OF THE BUILDING, PARTICULARLY THE CERTIFICATE OF
OCCUPANCY ISSUED BY THE CITY ENGINEER'S OFFICE OF MANILA.

II. THE LOWER COURT ERRED IN FINDING THAT "THE CEILING OF THE BALCONY COLLAPSED DUE TO
SOME STRUCTURAL CONSTRUCTION OR ARCHITECTURAL DEFECT," AND NOT DUE TO AN ACT OF GOD
OR FORCE MAJEURE.

III. THE LOWER COURT ERRED IN FINDING THAT THE APPELLANT WAS GROSSLY NEGLIGENT IN FAILING
"TO CAUSE PROPER AND ADEQUATE INSPECTION MAINTENANCE AND UPKEEP OF THE BUILDING." 5

In its decision, respondent Court found the appeal to be without merit. As to the first assigned error, it ruled that the trial court did not err
in admitting the exhibits in question in the light of the ruling in Abrenica vs. Gonda 6 on waiver of objections arising out of failure to
object at the proper time Thus:

Exh. "A", the letter dated June 9, 1982 of Tina Mojica of defendant-appellant to the Administrator of UST Hospital
expressing their willingness to guaranty the payment of the hospital bills of the plaintiffs-appellees was not objected to
in trial court for lack of authentication. It is too late to raise that objection on appeal.

Exhibits "B", "C", "D", "F" to "F-13" are the hospital records at FEU, UST and Cook County Hospital. It may be true
that the doctors who prepared them were not presented as witnesses. Nonetheless, the records will show that
counsel for defendant-appellant cross examined plaintiff-appellee Gloria Chatto on the matter especially the content
of Exhibits "F" to F-13", Consequently, defendant-appellant is estopped from claiming lack of opportunity to verify
their textual truth. Moreover, the record is full of the testimony of plaintiffs-appellees on the injuries they sustained
from the collapse of the ceiling of defendant-appellant's theater. Their existence is crystal clear.

Exh. "E" is the flight coupon and passenger ticket (Northwest Orient) of plaintiff-appellee Gloria Chatto from the
Philippines to the U.S. (Manila-Chicago-Manila). Certainly, this is relevant evidence on whether or not she actually
travelled (sic) to the U.S. for further medical treatment. Defendant-appellant's contention that the best evidence on
the issue is her passport is off the mark. The best evidence rule applies only if the contents of the writing are directly
in issue. In any event, her passport is not the only evidence on the matter.

Exh. "G" is the summary of plaintiff-appellee Gloria Chatto's expenses in the U.S in her own handwriting. Defendant-
appellant's objection that it is self serving goes to the weight of the evidence. The truth of Exh. "G" could be and
should have been tested by cross examination. It cannot be denied however that such expenses are within the
personal knowledge of the witness.

Exh. "H" is the surgical neckwear worn by the plaintiff-appellee Gloria Chatto as part of her treatment in the U.S.
Defendant-appellant objects to its admission because it is self-serving. The objection is without merit in view of the
evidence on record that plaintiff-appellee Gloria Chatto sustained head injuries from the collapse of the ceiling of
defendant-appellant's theater. In fact, counsel for defendant-appellant cross examined the said witness on the
medical finding of Cook County Hospital that she was suffering from neck muscle spasm. (TSN, April 17, 1984, p. 11)
The wearing of a surgical neckwear has proper basis.

Exh. "I" is the photograph of plaintiff-appellee Gloria Chatto in the U.S. showing the use of her surgical neckwear.
Defendant-appellant objects to this exhibit its hearsay because the photographer was not presented as a witness.
The objection is incorrect. In order that photographs or pictures may be given in evidence, they must be shown to be
a true and faithful representation of the place or objects to which they refer. The photographs may be verified either
by the photographer who took it or by any person who is acquainted with the object represented and testify (sic) that
the photograph faithfully represents the object. (Moran, Comments in the Rules of Court, Vol. V, 1980 ed., p. 80 citing
New York Co vs. Moore, 105 Fed. 725) In the case at bar, Exh. "I" was identified by plaintiff appellee Gloria Chatto. 7

As to the, other assigned errors, the respondent Court ruled:

The lower court did not also err in its finding that the collapse of the ceiling of the theater's balcony was due to
construction defects and not to force majeure. It was the burden defendant-appellant to prove that its theater did not
suffer from any structural defect when it was built and that it has been well maintained when the incident occurred.
This is its Special and Affirmative Defense and it is incumbent on defendant-appellant to prove it. Considering the
collapse of the ceiling of its theater's balcony barely four (4) years after its construction, it behooved defendant-
appellant to conduct an exhaustive study of the reason for the tragic incident. On this score, the effort of defendant-
appellant borders criminal nonchalance. Its witness Jesus Lim Ong testified:
 Atty. Barcelona:
Q By the way, you made mention a while ago that your staff of engineer and architect used to make
round inspection of the building under your construction the of these buildings is Gotesco Cinema 1
and 2, subject matter of this case, and you also made a regular round up or inspection of the
theater. Is that right?
A Yes, sir.
Q And do you personally inspect these buildings under your construction?
A Yes, whenever I can.
Q In the case of Gotesco Cinema 1 and 2, had you any chance to inspect this building?
A Yes, sir.
Q Particularly in the months of May and June of 1982?
A Yes, in that (sic) months.
Q Now, you said also that sometime in June 1982 you remember that one of these theaters.
Atty. Barcelona: continuing
particularly Superama 1 the ceiling had collapsed?
A Yes, sir.
Q Did you conduct an investigation?
A Yes, sir.
Q What was your finding?
A There was really nothing, I cannot explain. I could not give any reason why the ceiling collapsed.
Q Could it not be due to any defect of the plant?
Atty. Florido:
Already answered, Your Honor, he could not give any reason.
COURT:
Objection sustained.
Atty. Barcelona:
Q When that incident happened, did the owner Gotesco Investment Corporation went (sic) to you to
call your attention?
A Yes, sir.
Atty. Florido:
Your Honor, we noticed (sic) series of leading questions, but this time we object.
COURT:
Sustained.
Atty. Barcelona;
Q What did the owner of Gotesco do when the ceiling collapsed, upon knowing that one of the
cinemas you maintained collopsed?
A He asked for a thorough investigation.
Q And as a matter of fact as asked you to investigate?
A Yes, sir.
Q Did you come out with any investigation report.
A There was nothing to report.
Clearly, there was no authoritative investigation conducted by impartial civil and structural engineers on the cause of
the collapse of the theater's ceiling, Jesus Lim Ong is not an engineer, He is a graduate of architecture from the St.
Louie (sic) University in Baguio City. It does not appear he has passed the government examination for architects.
(TSN, June 14, 1985 p. 4) In fine, the ignorance of Mr. Ong about the cause of the collapse of the ceiling of their
theater cannot be equated, as an act, of God. To sustain that proposition is to introduce sacrilege in our
jurisprudence. 8

Its motion for reconsideration of the decision having been denied by the respondent Court, petitioner filed this petition assailing therein
the challenged decision on the following grounds:

1. The basis of the award for damages stems from medical reports issued by private physicians of local hospitals
without benefit of cross-examination and more seriously, xerox copies of medical findings issued by American doctors
in the United States without the production of originals, without the required consular authentication for foreign
documents, and without the opportunity for cross-examination.

2. The damage award in favor of respondents is principally, made depend on such unreliable, hearsay and
incompetent evidence for which an award of more than P150,000.00 in alleged actual, moral and I "consequential"
damages are awarded to the prejudice of the right of petitioner to due process. . . .

3. Unfortunately, petitioners evidence of due diligence in the care and maintenance of the building was not seriously
considered by the Court of Appeals, considering that frequent inspections and maintenance precautions had to be
observed by hired engineers of petitioner, which enjoys an unsullied reputation in the business of exhibiting movies in
a chain of movie houses in Metro Manila. 9

After the private respondents filed their Comment as required in the Resolution of 17 May 1989, this Court resolved to give due course
to the petition and required the parties to file their respective Memoranda. Subsequently, private respondents, in a motion, prayed for
leave to adopt their Comment as their Memorandum, which this Court granted on 6 December 1989. Petitioner filed its Memorandum
on 10 January 1990.

The petition presents both factual and legal issues. The first relates to the cause of the collapse of the ceiling while the latter involves
the correctness of the admission of the exhibits in question.

We find no merit in the petition.

The rule is well-settled that the jurisdiction of this Court in cases brought to it from the Court of Appeals is limited to reviewing and
revising the errors of law imputed to it, its findings of fact being conclusive, 10 except only where a case is shown as coming under the
accepted exception. 11 None of the exceptions which this Court has painstakingly summarized in several cases 12 has been shown to
exist in this petition. Petitioner's claim that the collapse of the ceiling of the theater's balcony was due to  force majeure  is not even
founded on facts because its own witness, Mr. Jesus Lim Ong, admitted that "he could not give any reason why the ceiling collapsed."
Having interposed it as a defense, it had the burden to prove that the collapse was indeed caused by  force majeure. It could not have
collapsed without a cause. That Mr. Ong could not offer any explanation does not imply  force majeure. As early as eighty-five (85)
years ago, this Court had the occasion to define  force majeure. In Pons y Compañia vs. La Compañia Maritima 13 this Court held:

An examination of the Spanish and American authorities concerning the meaning of force majeure shows that the
jurisprudence of these two countries practically agree upon the meaning of this phrase.

Blackstone, in his Commentaries on English Law, defines it as —

Inevitable accident or casualty; an accident produced by any physical cause which is irresistible;
such as lightning. tempest, perils of the sea, inundation, or earthquake; the sudden illness or death
of a person. (2 Blackstone's Commentaries, 122; Story in Bailments, sec. 25.)

Escriche, in his Diccionario de Legislacion y Jurisprudencia,  defines  fuerza mayor  as follows.

The event which we could neither foresee nor resist; as for example, the lightning stroke, hail,
inundation, hurricane, public enemy, attack by robbers; Vis major est, says Cayo, ea quae consilio
humano neque provideri neque vitari potest. Accident and mitigating circumstances.

Bouvier defines the same as —

Any accident due to natural cause, directly exclusively without human intervention, such as could
not have been prevented by any kind of oversight, pains and care reasonably to have been
expected. (Law Reports, 1 Common Pleas Division, 423; Law Reports, 10 Exchequer, 255.)

Corkburn, chief justice, in a well considered English case (1 Common Pleas Division, 34, 432), said that were a
captain —

Uses all the known means to which prudent and experienced captains ordinarily have recourse, he
does all that can be reasonably required of him; and if, under such circumtances, he is
overpowered by storm or other natural agency, he is within the rule which gives immunity from the
effects of such vis major.

The term generally applies, broadly speaking, to natural accidents, such as those caused by lightning, earthquake,
tempests, public enemy ,etc.

Petitioner could have easily discovered the cause of the collapse if indeed it were due to force majeure. To Our mind, the real reason
why Mr. Ong could not explain the cause or reason is that either he did not actually conduct the investigation or that he is, as the
respondent Court impliedly held, incompetent. He is not an engineer, but an architect who had not even passed the government's
examination. Verily, post-incident investigation cannot be considered as material to the present proceedings. What is significant is the
finding of the trial court, affirmed by the respondent Court, that the collapse was due to construction defects. There was no evidence
offered to overturn this finding. The building was constructed barely four (4) years prior to the accident in question. It was not shown
that any of the causes denominates as force majeure obtained immediately before or at the time of the collapse of the ceiling. Such
defects could have been easily discovered if only petitioner exercised due diligence and care in keeping and maintaining the premises.
But as disclosed by the testimony of Mr. Ong, there was no adequate inspection of the premises before the date of the accident. His
answers to the leading questions on inspection disclosed neither the exact dates of said. inspection nor the nature and extent of the
same. That the structural designs and plans of the building were duly approved by the City Engineer and the building permits and
certificate of occupancy were issued do not at all prove that there were no defects in the construction, especially as regards the ceiling,
considering that no testimony was offered to prove that it was ever inspected at all.

It is settled that:
 The owner or proprietor of a place of public amusement impliedly warrants that the premises, appliances and
amusement devices are safe for the purpose for which they are designed, the doctrine being subject to no other
exception or qualification than that he does not contract against unknown defects not discoverable by ordinary or
reasonable means. 14

This implied warranty has given rise to the rule that:

Where a patron of a theater or other place of public amusement is injured, and the thing that caused the injury is
wholly and exclusively under the control and management of the defendant, and the accident is such as in the
ordinary course of events would not have happened if proper care had been exercised, its occurrence raises a
presumption or permits of an inference of negligence on the part of the defendant. 15

That presumption or inference was not overcome by the petitioner.

Besides, even assuming for the sake of argument that, as petitioner vigorously insists, the cause of the collapse was due to force
majeure, petitioner would still be liable because it was guilty of negligence, which the trial court denominated as gross. As gleaned from
Bouvier's definition of and Cockburn's elucidation on force majeure for one to be exempt from any liability because of it, he must have
exercised care, i.e., he should not have been guilty of negligence.

Turning now to the legal issue posed in this petition, the error lies not in the disquisitions of the respondent Court, but in the sweeping
conclusion of petitioner. We agree with the respondent Court that petitioner offered no reasonable objection to the exhibits. More than
this, however, We note that the exhibits were admitted not as independent evidence, but, primarily, as part of the testimony of Mrs.
Gloria Chatto. Neither were the exhibits made the main basis for the award of damages. As to the latter, including the award for
attorney's fees, the testimonial evidence presented is sufficient to support the same; moreover, petitioner was not deprived of its right to
test the, truth or falsity of private respondents' testimony through cross-examination or refute their claim by its own evidence. It could
not then be successfully argued by petitioner that the admission of the exhibits violated the hearsay rule. As this Court sees it, the trial
court admitted such merely as independently relevant statements, which was not objectionable, for:

Where, regardless of the truth or the falsity of a statement, the fact that it has been made is relevant, the hearsay rule
does not apply, but the statement may be shown. Evidence as to the making of such statement is not secondary but
primary, for the statement itself may constitute a fact; in issue, or be circumstantially relevant as to the existence of
such a fact. 16

Furthermore, and with particular reference to the documents issued in the United States of America (Exhibits "F", "F-1" to "F-13",
inclusive), the main objection thereto was not that they are hearsay. In its written comment and/or opposition to documentary exhibits,
petitioner objected to their admission on the following grounds only:

. . . for being incompetent evidence considering that the same were not duly authenticated by the responsible
consular and/or embassy officials authorized to authenticate the said documents. 17

All told, the instant petition is without merit.

WHEREFORE, judgment is hereby rendered DENYING the instant petition with costs against petitioner.

SO ORDERED.
G.R. No. L-2075            November 29, 1949

MARGARITA AFIALDA, plaintiff-appellant,
vs.
BASILIO HISOLE and FRANCISCO HISOLE, defendants-appellees.

Nicolas P. Nonato for appellant.

Gellada, Mirasol and Ravena for appellees.

REYES, J.:

This is an action for damages arising from injury caused by an animal. The complaint alleges that the now deceased, Loreto Afialda,
was employed by the defendant spouses as caretaker of their carabaos at a fixed compensation; that while tending the animals he was,
on March 21, 1947, gored by one of them and later died as a consequence of his injuries; that the mishap was due neither to his own
fault nor to force majeure; and that plaintiff is his elder sister and heir depending upon him for support.

Before filing their answer, defendants moved for the dismissal of the complaint for lack of a cause of action, and the motion having been
granted by the lower court, plaintiff has taken this appeal.

Plaintiff seeks to hold defendants liable under article 1905 of the Civil Code, which reads:

The possessor of an animal, or the one who uses the same, is liable for any damages it may cause, even if such animal
should escape from him or stray away.

This liability shall cease only in case, the damage should arise from force majeure or from the fault of the person who may
have suffered it.

The question presented is whether the owner of the animal is liable when damage is caused to its caretaker.

The lower court took the view that under the above-quoted provision of the Civil Code, the owner of an animal is answerable only for
damages caused to a stranger, and that for damage caused to the caretaker of the animal the owner would be liable only if he had
been negligent or at fault under article 1902 of the same code. Claiming that the lower court was in error, counsel for plaintiff contends
that the article 1905 does not distinguish between damage caused to the caretaker and makes the owner liable whether or not he has
been negligent or at fault. For authority counsel cites the following opinion which Manresa quotes from a decision of the Spanish
Supreme Court:

El articulo 1905 del codigo Civil no consienta otra interpretacion que la que, clara y evidentemente, se deriva de sus terminos
literales, bastando, segun el mismo, que un animal cause perjuicio para que nasca la responsibilidad del dueno, aun no
imputandose a este ninguna clase de culpa o negligencia, habida,sin duda, cuenta por el lgislador de que tal concepto de
dueno es suficiente para que arrastre las consecuencias favorables o adversas de esta clase de propiedad, salvo la exception
en el mismo contenida. (12 Manresa, Commentaries on the Spanish CivilCode, 573.)

This opinion, however, appears to have been rendered in a case where an animal caused injury to a stranger or third person. It is
therefore no authority for a case like the present where the person injured was the caretaker of the animal. The distinction is important.
For the statute names the  possessor  or user of the animal as the person liable for "any damages it may cause," and this for the
obvious reason that the possessor or user has the custody and control of the animal and is therefore the one in a position to prevent it
from causing damage.

In the present case, the animal was in custody and under the control of the caretaker, who was paid for his work as such. Obviously, it
was the caretaker's business to try to prevent the animal from causing injury or damage to anyone, including himself. And being injured
by the animal under those circumstances, was one of the risks of the occupation which he had voluntarily assumed and for which he
must take the consequences.

In a decision of the Spanish Supreme Court, cited by Manresa in his Commentaries (Vol. 12, p. 578), the death of an employee who
was bitten by a feline which his master had asked him to take to his establishment was by said tribunal declared to be "a veritable
accident of labor" which should come under the labor laws rather than under article 1905 of the Civil Code. The present action,
however, is not brought under the Workmen's Compensation Act, there being no allegation that, among other things, defendant's
business, whatever that might be, had a gross income of P20,000. As already stated, defendant's liability is made to rest on article 1905
of the Civil Code. but action under that article is not tenable for the reasons already stated. On the other hand, if action is to be based
on article 1902 of the Civil Code, it is essential that there be fault or negligence on the part of the defendants as owners of the animal
that caused the damage. But the complaint contains no allegation on those points.
There being no reversible error in the order appealed from, the same is hereby affirmed, but without costs in view of the financial
situation of the appellant.
G.R. No. 135306             January 28, 2003

MVRS PUBLICATIONS, INC., MARS C. LACONSAY, MYLA C. AGUJA and AGUSTINO G. BINEGAS, JR., petitioners,
vs.
ISLAMIC DA'WAH COUNCIL OF THE PHILIPPINES, INC., ABDULRAHMAN R.T. LINZAG, IBRAHIM F.P. ARCILLA, ABDUL
RASHID DE GUZMAN, AL-FARED DA SILVA and IBRAHIM B.A. JUNIO, respondents.

BELLOSILLO, J.:

I may utterly detest what you write, but I shall fight to the death to make it possible for you to continue writing it. —

Voltaire

VOLTAIRE'S PONTIFICAL VERSE bestirs once again the basic liberties to free speech and free press — liberties that belong as well, if
not more, to those who question, who do not conform, who differ. For the ultimate good which we all strive to achieve for ourselves and
our posterity can better be reached by a free exchange of ideas, where the best test of truth is the power of the thought to get itself
accepted in the competition of the free market — not just the ideas we desire, but including those thoughts we despise.1

ISLAMIC DA'WAH COUNCIL OF THE PHILIPPINES, INC., a local federation of more than seventy (70) Muslim religious organizations,
and individual Muslims ABDULRAHMAN R.T. LINZAG, IBRAHIM F.P. ARCILLA, ABDUL RASHID DE GUZMAN, AL-FARED DA SILVA
and IBRAHIM B.A. JUNIO, filed in the Regional Trial Court of Manila a complaint for damages in their own behalf and as a class suit in
behalf of the Muslim members nationwide against MVRS PUBLICATIONS, INC., MARS C. LACONSAY, MYLA C. AGUJA and
AGUSTINO G. BINEGAS, JR., arising from an article published in the 1 August 1992 issue of Bulgar, a daily tabloid. The article reads:

"ALAM BA NINYO?

Na ang mga baboy at kahit anong uri ng hayop sa Mindanao ay hindi kinakain ng mga Muslim?

Para sa kanila ang mga ito ay isang sagradong bagay. Hindi nila ito kailangang kainin kahit na sila pa ay magutom at
mawalan ng ulam sa tuwing sila ay kakain. Ginagawa nila itong Diyos at sinasamba pa nila ito sa tuwing araw ng kanilang
pangingilin lalung-lalo na sa araw na tinatawag nilang 'Ramadan'."

The complaint alleged that the libelous statement was insulting and damaging to the Muslims; that these words alluding to the pig as
the God of the Muslims was not only published out of sheer ignorance but with intent to hurt the feelings, cast insult and disparage the
Muslims and Islam, as a religion in this country, in violation of law, public policy, good morals and human relations; that on account of
these libelous words Bulgar insulted not only the Muslims in the Philippines but the entire Muslim world, especially every Muslim
individual in non-Muslim countries.

MVRS PUBLICATIONS, INC., and AGUSTINO G. BINEGAS, JR., in their defense, contended that the article did not mention
respondents as the object of the article and therefore were not entitled to damages; and, that the article was merely an expression of
belief or opinion and was published without malice nor intention to cause damage, prejudice or injury to Muslims.2

On 30 June 1995 the trial court dismissed the complaint holding that the plaintiffs failed to establish their cause of action since the
persons allegedly defamed by the article were not specifically identified —

It must be noted that the persons allegedly defamed, the herein plaintiffs, were not identified with specificity. The subject article
was directed at the Muslims without mentioning or identifying the herein plaintiffs x x x. It is thus apparent that the alleged
libelous article refers to the larger collectivity of Muslims for which the readers of the libel could not readily identify the
personalities of the persons defamed. Hence, it is difficult for an individual Muslim member to prove that the defamatory
remarks apply to him. The evidence presented in this case failed to convince this court that, indeed, the defamatory remarks
really applied to the herein plaintiffs.3

On 27 August 1998 the Court of Appeals reversed the decision of the trial court. It opined that it was "clear from the disputed article that
the defamation was directed to all adherents of the Islamic faith. It stated that pigs were sacred and idolized as god by members of the
Muslim religion. This libelous imputation undeniably applied to the plaintiff-appellants who are Muslims sharing the same religious
beliefs." It added that the suit for damages was a "class suit" and that ISLAMIC DA'WAH COUNCIL OF THE PHILIPPINES, INC.'s
religious status as a Muslim umbrella organization gave it the requisite personality to sue and protect the interests of all Muslims.4

Hence, the instant petition for review assailing the findings of the appellate court (a) on the existence of the elements of libel, (b) the
right of respondents to institute the class suit, and, (c) the liability of petitioners for moral damages, exemplary damages, attorney's fees
and costs of suit.
Defamation, which includes libel and slander, means the offense of injuring a person's character, fame or reputation through false and
malicious statements.5 It is that which tends to injure reputation or to diminish the esteem, respect, good will or confidence in the
plaintiff or to excite derogatory feelings or opinions about the plaintiff.6 It is the publication of anything which is injurious to the good
name or reputation of another or tends to bring him into disrepute.7 Defamation is an invasion of a relational interest since it involves the
opinion which others in the community may have, or tend to have, of the plaintiff.8

It must be stressed that words which are merely insulting are not actionable as libel or slander per se, and mere words of general abuse
however opprobrious, ill-natured, or vexatious, whether written or spoken, do not constitute a basis for an action for defamation in the
absence of an allegation for special damages.9 The fact that the language is offensive to the plaintiff does not make it actionable by
itself.10

Declarations made about a large class of people cannot be interpreted to advert to an identified or identifiable individual. Absent
circumstances specifically pointing or alluding to a particular member of a class, no member of such class has a right of action11 without
at all impairing the equally demanding right of free speech and expression, as well as of the press, under the Bill of Rights.12 Thus,
in Newsweek, Inc. v. Intermediate Appellate Court,13 we dismissed a complaint for libel against Newsweek, Inc., on the ground that
private respondents failed to state a cause of action since they made no allegation in the complaint that anything contained in the article
complained of specifically referred to any of them. Private respondents, incorporated associations of sugarcane planters in Negros
Occidental claiming to have 8,500 members and several individual members, filed a class action suit for damages in behalf of all
sugarcane planters in Negros Occidental. The complaint filed in the Court of First Instance of Bacolod City alleged that Newsweek, Inc.,
committed libel against them by the publication of the article "Island of Fear" in its weekly newsmagazine allegedly depicting Negros
Province as a place dominated by wealthy landowners and sugar planters who not only exploited the impoverished and underpaid
sugarcane workers but also brutalized and killed them with impunity. Private respondents alleged that the article showed a deliberate
and malicious use of falsehood, slanted presentation and/or misrepresentation of facts intended to put the sugarcane planters in a bad
light, expose them to public ridicule, discredit and humiliation in the Philippines and abroad, and make them the objects of hatred,
contempt and hostility of their agricultural workers and of the public in general. We ratiocinated —

x x x where the defamation is alleged to have been directed at a group or class, it is essential that the statement must be so
sweeping or all-embracing as to apply to every individual in that group or class, or sufficiently specific so that each individual in
the class or group can prove that the defamatory statement specifically pointed to him, so that he can bring the action
separately, if need be x x x x The case at bar is not a class suit. It is not a case where one or more may sue for the benefit of
all, or where the representation of class interest affected by the judgment or decree is indispensable to make each member of
the class an actual party. We have here a case where each of the plaintiffs has a separate and distinct reputation in the
community. They do not have a common or general interest in the subject matter of the controversy.

In the present case, there was no fairly identifiable person who was allegedly injured by the Bulgar article. Since the persons allegedly
defamed could not be identifiable, private respondents have no individual causes of action; hence, they cannot sue for a class allegedly
disparaged. Private respondents must have a cause of action in common with the class to which they belong to in order for the case to
prosper.

An individual Muslim has a reputation that is personal, separate and distinct in the community. Each Muslim, as part of the larger
Muslim community in the Philippines of over five (5) million people, belongs to a different trade and profession; each has a varying
interest and a divergent political and religious view — some may be conservative, others liberal. A Muslim may find the article
dishonorable, even blasphemous; others may find it as an opportunity to strengthen their faith and educate the non-believers and the
"infidels." There is no injury to the reputation of the individual Muslims who constitute this community that can give rise to an action for
group libel. Each reputation is personal in character to every person. Together, the Muslims do not have a single common reputation
that will give them a common or general interest in the subject matter of the controversy.

In Arcand v. The Evening Call Publishing Company,14 the United States Court of Appeals held that one guiding principle of group libel is
that defamation of a large group does not give rise to a cause of action on the part of an individual unless it can be shown that he is the
target of the defamatory matter.

The rule on libel has been restrictive. In an American case,15 a person had allegedly committed libel against all persons of the Jewish
religion. The Court held that there could be no libel against an extensive community in common law. In an English case, where libel
consisted of allegations of immorality in a Catholic nunnery, the Court considered that if the libel were on the whole Roman Catholic
Church generally, then the defendant must be absolved.16 With regard to the largest sectors in society, including religious groups, it
may be generally concluded that no criminal action at the behest of the state, or civil action on behalf of the individual, will lie.

In another case, the plaintiffs claimed that all Muslims, numbering more than 600 million, were defamed by the airing of a national
television broadcast of a film depicting the public execution of a Saudi Arabian princess accused of adultery, and alleging that such film
was "insulting and defamatory" to the Islamic religion.17 The United States District Court of the Northern District of California concluded
that the plaintiffs' prayer for $20 Billion in damages arising from "an international conspiracy to insult, ridicule, discredit and abuse
followers of Islam throughout the world, Arabs and the Kingdom of Saudi Arabia" bordered on the "frivolous," ruling that the plaintiffs
had failed to demonstrate an actionable claim for defamation. The California Court stressed that the aim of the law on defamation
was to protect individuals; a group may be sufficiently large that a statement concerning it could not defame individual group
members.18
Philip Wittenberg, in his book "Dangerous Words: A Guide to the Law of Libel,"19 discusses the inappropriateness of any action for
tortious libel involving large groups, and provides a succinct illustration:

There are groupings which may be finite enough so that a description of the body is a description of the members. Here the
problem is merely one of evaluation. Is the description of the member implicit in the description of the body, or is there a
possibility that a description of the body may consist of a variety of persons, those included within the charge, and those
excluded from it?

A general charge that the lawyers in the city are shysters would obviously not be a charge that all of the lawyers were
shysters. A charge that the lawyers in a local point in a great city, such as Times Square in New York City, were shysters
would obviously not include all of the lawyers who practiced in that district; but a statement that all of the lawyers who
practiced in a particular building in that district were shysters would be a specific charge, so that any lawyer having an office
within that building could sue.

If the group is a very large one, then the alleged libelous statement is considered to have no application to anyone in particular, since
one might as well defame all mankind. Not only does the group as such have no action; the plaintiff does not establish any personal
reference to himself.20 At present, modern societal groups are both numerous and complex. The same principle follows with these
groups: as the size of these groups increases, the chances for members of such groups to recover damages on tortious libel become
elusive. This principle is said to embrace two (2) important public policies: first, where the group referred to is large, the courts presume
that no reasonable reader would take the statements as so literally applying to each individual member; and second, the limitation on
liability would satisfactorily safeguard freedom of speech and expression, as well as of the press, effecting a sound compromise
between the conflicting fundamental interests involved in libel cases.21

In the instant case, the Muslim community is too vast as to readily ascertain who among the Muslims were particularly defamed. The
size of the group renders the reference as indeterminate and generic as a similar attack on Catholics, Protestants, Buddhists or
Mormons would do. The word "Muslim" is descriptive of those who are believers of Islam, a religion divided into varying sects, such as
the Sunnites, the Shiites, the Kharijites, the Sufis and others based upon political and theological distinctions. "Muslim" is a name which
describes only a general segment of the Philippine population, comprising a heterogeneous body whose construction is not so well
defined as to render it impossible for any representative identification.

The Christian religion in the Philippines is likewise divided into different sects: Catholic, Baptist, Episcopalian, Presbyterian, Lutheran,
and other groups the essence of which may lie in an inspired charlatan, whose temple may be a corner house in the fringes of the
countryside. As with the Christian religion, so it is with other religions that represent the nation's culturally diverse people and minister to
each one's spiritual needs. The Muslim population may be divided into smaller groups with varying agenda, from the prayerful
conservative to the passionately radical. These divisions in the Muslim population may still be too large and ambiguous to provide a
reasonable inference to any personality who can bring a case in an action for libel.

The foregoing are in essence the same view scholarly expressed by Mr. Justice Reynato S. Puno in the course of the deliberations in
this case. We extensively reproduce hereunder his comprehensive and penetrating discussion on group libel —

Defamation is made up of the twin torts of libel and slander — the one being, in general, written, while the other in general is
oral. In either form, defamation is an invasion of the interest in reputation and good name. This is a "relational interest" since it
involves the opinion others in the community may have, or tend to have of the plaintiff.

The law of defamation protects the interest in reputation — the interest in acquiring, retaining and enjoying one's reputation as
good as one's character and conduct warrant. The mere fact that the plaintiff's feelings and sensibilities have been offended is
not enough to create a cause of action for defamation. Defamation requires that something be communicated to a third person
that may affect the opinion others may have of the plaintiff. The unprivileged communication must be shown of a statement
that would tend to hurt plaintiff's reputation, to impair plaintiff's standing in the community.

Although the gist of an action for defamation is an injury to reputation, the focus of a defamation action is upon the allegedly
defamatory statement itself and its predictable effect upon third persons. A statement is ordinarily considered defamatory if it
"tend[s] to expose one to public hatred, shame, obloquy, contumely, odium, contempt, ridicule, aversion, ostracism,
degradation or disgracex x x." The Restatement of Torts defines a defamatory statement as one that "tends to so harm the
reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing
with him."

Consequently as a prerequisite to recovery, it is necessary for the plaintiff to prove as part of his prima facie case that the
defendant (1) published a statement that was (2) defamatory (3) of and concerning the plaintiff.

The rule in libel is that the action must be brought by the person against whom the defamatory charge has been made. In the
American jurisdiction, no action lies by a third person for damages suffered by reason of defamation of another person, even
though the plaintiff suffers some injury therefrom. For recovery in defamation cases, it is necessary that the publication be "of
and concerning the plaintiff." Even when a publication may be clearly defamatory as to somebody, if the words have no
 personal application to the plaintiff, they are not actionable by him. If no one is identified, there can be no libel because no
one's reputation has been injured x x x x

In fine, in order for one to maintain an action for an alleged defamatory statement, it must appear that the plaintiff is the person
with reference to whom the statement was made. This principle is of vital importance in cases where a group or class is
defamed since, usually, the larger the collective, the more difficult it is for an individual member to show that he was the
person at whom the defamation was directed.

If the defamatory statements were directed at a small, restricted group of persons, they applied to any member of the group,
and an individual member could maintain an action for defamation. When the defamatory language was used toward a small
group or class, including every member, it has been held that the defamatory language referred to each member so that each
could maintain an action. This small group or class may be a jury, persons engaged in certain businesses, professions or
employments, a restricted subdivision of a particular class, a society, a football team, a family, small groups of union officials, a
board of public officers, or engineers of a particular company.

In contrast, if defamatory words are used broadly in respect to a large class or group of persons, and there is nothing that
points, or by proper colloquium or innuendo can be made to apply, to a particular member of the class or group, no member
has a right of action for libel or slander. Where the defamatory matter had no special, personal application and was so general
that no individual damages could be presumed, and where the class referred to was so numerous that great vexation and
oppression might grow out of the multiplicity of suits, no private action could be maintained. This rule has been applied to
defamatory publications concerning groups or classes of persons engaged in a particular business, profession or employment,
directed at associations or groups of association officials, and to those directed at miscellaneous groups or classes of persons.

Distinguishing a small group — which if defamed entitles all its members to sue from a large group — which if defamed entitles
no one to sue — is not always so simple. Some authorities have noted that in cases permitting recovery, the group generally
has twenty five (25) or fewer members. However, there is usually no articulated limit on size. Suits have been permitted by
members of fairly large groups when some distinguishing characteristic of the individual or group increases the likelihood that
the statement could be interpreted to apply individually. For example, a single player on the 60 to 70 man Oklahoma University
football team was permitted to sue when a writer accused the entire team of taking amphetamines to "hop up" its performance;
the individual was a fullback, i.e., a significant position on the team and had played in all but two of the team's games.

A prime consideration, therefore, is the public perception of the size of the group and whether a statement will be interpreted to
refer to every member. The more organized and cohesive a group, the easier it is to tar all its members with the same brush
and the more likely a court will permit a suit from an individual even if the group includes more than twenty five (25) members.
At some point, however, increasing size may be seen to dilute the harm to individuals and any resulting injury will fall beneath
the threshold for a viable lawsuit.

x x x x There are many other groupings of men than those that are contained within the foregoing group classifications. There
are all the religions of the world, there are all the political and ideological beliefs; there are the many colors of the human race.
Group defamation has been a fertile and dangerous weapon of attack on various racial, religious and political minorities. Some
states, therefore, have passed statutes to prevent concerted efforts to harass minority groups in the United States by making it
a crime to circulate insidious rumors against racial and religious groups. Thus far, any civil remedy for such broadside
defamation has been lacking.

There have been numerous attempts by individual members to seek redress in the courts for libel on these groups, but very
few have succeeded because it felt that the groups are too large and poorly defined to support a finding that the plaintiff was
singled out for personal attack x x x x (citations omitted).

Our conclusion therefore is that the statements published by petitioners in the instant case did not specifically identify nor refer to any
particular individuals who were purportedly the subject of the alleged libelous publication. Respondents can scarcely claim to having
been singled out for social censure pointedly resulting in damages.

A contrary view is expressed that what is involved in the present case is an intentional tortious act causing mental distress and not an
action for libel. That opinion invokes Chaplinsky v. New Hampshire22 where the U.S. Supreme Court held that words heaping extreme
profanity, intended merely to incite hostility, hatred or violence, have no social value and do not enjoy constitutional protection;
and Beauharnais v. Illinois23 where it was also ruled that hate speech which denigrates a group of persons identified by their religion,
race or ethnic origin defames that group and the law may validly prohibit such speech on the same ground as defamation of an
individual.

We do not agree to the contrary view articulated in the immediately preceding paragraph. Primarily, an "emotional distress" tort action is
personal in nature,  i.e., it is a civil action filed by an individual24 to assuage the injuries to his emotional tranquility due to personal
attacks on his character. It has no application in the instant case since no particular individual was identified in the disputed article
of Bulgar. Also, the purported damage caused by the article, assuming there was any, falls under the principle of relational harm —
which includes harm to social relationships in the community in the form of defamation; as distinguished from the principle of reactive
harm — which includes injuries to individual emotional tranquility in the form of an infliction of emotional distress. In their complaint,
respondents clearly asserted an alleged harm to the standing of Muslims in the community, especially to their activities in propagating
their faith in Metro Manila and in other non-Muslim communities in the country.25 It is thus beyond cavil that the present case falls within
the application of the relational harm principle of tort actions for defamation, rather than the reactive harm principle on which the
concept of emotional distress properly belongs.

Moreover, under the Second Restatement of the Law, to recover for the intentional infliction of emotional distress the plaintiff must show
that: (a) The conduct of the defendant was intentional or in reckless disregard of the plaintiff; (b) The conduct was extreme and
outrageous; (c) There was a causal connection between the defendant's conduct and the plaintiff's mental distress; and, (d) The
plaintiff's mental distress was extreme and severe.26

"Extreme and outrageous conduct" means conduct that is so outrageous in character, and so extreme in degree, as to go beyond all
possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in civilized society. The defendant's actions must
have been so terrifying as naturally to humiliate, embarrass or frighten the plaintiff.27 Generally, conduct will be found to be actionable
where the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him
or her to exclaim, "Outrageous!" as his or her reaction.28

"Emotional distress" means any highly unpleasant mental reaction such as extreme grief, shame, humiliation, embarrassment, anger,
disappointment, worry, nausea, mental suffering and anguish, shock, fright, horror, and chagrin.29 "Severe emotional distress," in some
jurisdictions, refers to any type of severe and disabling emotional or mental condition which may be generally recognized and
diagnosed by professionals trained to do so, including posttraumatic stress disorder, neurosis, psychosis, chronic depression, or
phobia.30 The plaintiff is required to show, among other things, that he or she has suffered emotional distress so severe that no
reasonable person could be expected to endure it; severity of the distress is an element of the cause of action, not simply a matter of
damages.31

Any party seeking recovery for mental anguish must prove more than mere worry, anxiety, vexation, embarrassment, or anger. Liability
does not arise from mere insults, indignities, threats, annoyances, petty expressions, or other trivialities. In determining whether the tort
of outrage had been committed, a plaintiff is necessarily expected and required to be hardened to a certain amount of criticism, rough
language, and to occasional acts and words that are definitely inconsiderate and unkind; the mere fact that the actor knows that the
other will regard the conduct as insulting, or will have his feelings hurt, is not enough.32

Hustler Magazine v. Falwell33 illustrates the test case of a civil action for damages on intentional infliction of emotional distress. A
parody appeared in Hustler magazine featuring the American fundamentalist preacher and evangelist Reverend Jerry Falwell depicting
him in an inebriated state having an incestuous, sexual liaison with his mother in an outhouse. Falwell sued Hustler and its publisher
Larry Flynt for damages. The United States District Court for the Western District of Virginia ruled that the parody was not libelous,
because no reasonable reader would have understood it as a factual assertion that Falwell engaged in the act described. The jury,
however, awarded $200,000 in damages on a separate count of "intentional infliction of emotional distress," a cause of action that did
not require a false statement of fact to be made. The United States Supreme Court in a unanimous decision overturned the jury verdict
of the Virginia Court and held that Reverend Falwell may not recover for intentional infliction of emotional distress. It was argued that
the material might be deemed outrageous and may have been intended to cause severe emotional distress, but these circumstances
were not sufficient to overcome the free speech rights guaranteed under the First Amendment of the United States Constitution. Simply
stated, an intentional tort causing emotional distress must necessarily give way to the fundamental right to free speech.

It must be observed that although Falwell was regarded by the U.S. High Court as a "public figure," he was an individual particularly
singled out or identified in the parody appearing on Hustler magazine. Also, the emotional distress allegedly suffered by Reverend
Falwell involved a reactive interest — an emotional response to the parody which supposedly injured his psychological well-being.

Verily, our position is clear that the conduct of petitioners was not extreme or outrageous. Neither was the emotional distress allegedly
suffered by respondents so severe that no reasonable person could be expected to endure it. There is no evidence on record that
points to that result.

Professor William Prosser, views tort actions on intentional infliction of emotional distress in this manner34 —

There is virtually unanimous agreement that such ordinary defendants are not liable for mere insult, indignity, annoyance, or
even threats, where the case is lacking in other circumstances of aggravation. The reasons are not far to seek. Our manners,
and with them our law, have not yet progressed to the point where we are able to afford a remedy in the form of tort damages
for all intended mental disturbance. Liability of course cannot be extended to every trivial indignity x x x x The plaintiff must
necessarily be expected and required to be hardened to a certain amount of rough language, and to acts that are definitely
inconsiderate and unkind x x x The plaintiff cannot recover merely because of hurt feelings.

Professor Calvert Magruder reinforces Prosser with this succinct observation, viz:35

There is no occasion for the law to intervene in every case where someone's feelings are hurt. There must still be freedom to
express an unflattering opinion, and some safety valve must be left through which irascible tempers may blow off relatively
harmless steam.
Thus, it is evident that even American courts are reluctant to adopt a rule of recovery for emotional harm that would "open up a wide
vista of litigation in the field of bad manners," an area in which a "toughening of the mental hide" was thought to be a more appropriate
remedy.36 Perhaps of greater concern were the questions of causation, proof, and the ability to accurately assess damages for
emotional harm, each of which continues to concern courts today.37

In this connection, the doctrines in Chaplinsky and Beauharnais had largely been superseded by subsequent First Amendment
doctrines. Back in simpler times in the history of free expression the Supreme Court appeared to espouse a theory, known as the Two-
Class Theory, that treated certain types of expression as taboo forms of speech, beneath the dignity of the First Amendment. The most
celebrated statement of this view was expressed in Chaplinsky:

There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never
been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the
insulting or "fighting" words — those which by their very utterance inflict injury or tend to incite an immediate breach of the
peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight
social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in
order and morality.

Today, however, the theory is no longer viable; modern First Amendment principles have passed it by. American courts no longer
accept the view that speech may be proscribed merely because it is "lewd," "profane," "insulting" or otherwise vulgar or
offensive.38 Cohen v. California39 is illustrative: Paul Robert Cohen wore a jacket bearing the words "Fuck the Draft" in a Los Angeles
courthouse in April 1968, which caused his eventual arrest. Cohen was convicted for violating a California statute prohibiting any
person from "disturb[ing] the peace x x x by offensive conduct." The U.S. Supreme Court conceded that Cohen's expletive contained in
his jacket was "vulgar," but it concluded that his speech was nonetheless protected by the right to free speech. It was neither
considered an "incitement" to illegal action nor "obscenity." It did not constitute insulting or "fighting" words for it had not been directed
at a person who was likely to retaliate or at someone who could not avoid the message. In other words, no one was present in the Los
Angeles courthouse who would have regarded Cohen's speech as a direct personal insult, nor was there any danger of reactive
violence against him.

No specific individual was targeted in the allegedly defamatory words printed on Cohen's jacket. The conviction could only be justified
by California's desire to exercise the broad power in preserving the cleanliness of discourse in the public sphere, which the U.S.
Supreme Court refused to grant to the State, holding that no objective distinctions can be made between vulgar and nonvulgar speech,
and that the emotive elements of speech are just as essential in the exercise of this right as the purely cognitive. As Mr. Justice Harlan
so eloquently wrote: "[O]ne man's vulgarity is another man's lyric x x x words are often chosen as much for their emotive as their
cognitive force."40 With Cohen, the U.S. Supreme Court finally laid the Constitutional foundation for judicial protection of provocative and
potentially offensive speech.

Similarly, libelous speech is no longer outside the First Amendment protection. Only one small piece of the Two-Class
Theory in Chaplinsky survives — U.S. courts continue to treat "obscene" speech as not within the protection of the First Amendment at
all. With respect to the "fighting words" doctrine, while it remains alive it was modified by the current rigorous clear and present danger
test.41 Thus, in Cohen the U.S. Supreme Court in applying the test held that there was no showing that Cohen's jacket bearing the
words "Fuck the Draft" had threatened to provoke imminent violence; and that protecting the sensibilities of onlookers was not
sufficiently compelling interest to restrain Cohen's speech.

Beauharnais, which closely followed the Chaplinsky doctrine, suffered the same fate as Chaplinsky. Indeed, when Beauharnais was
decided in 1952, the Two-Class Theory was still flourishing. While concededly the U.S. High Tribunal did not formally
abandon Beauharnais, the seminal shifts in U.S. constitutional jurisprudence substantially undercut Beauharnais and seriously
undermined what is left of its vitality as a precedent. Among the cases that dealt a crushing impact on Beauharnais and rendered it
almost certainly a dead letter case law are Brandenburg v. Ohio,42 and, again, Cohen v. California.43 These decisions recognize a much
narrower set of permissible grounds for restricting speech than did Beauharnais.44

In Brandenburg, appellant who was a leader of the Ku Klux Klan was convicted under the Ohio Criminal Syndicalism Statute for
advocating the necessity, duty and propriety of crime, sabotage, violence, or unlawful methods of terrorism as a means of
accomplishing industrial or political reforms; and for voluntarily assembling with a group formed to teach or advocate the doctrines of
criminal syndicalism. Appellant challenged the statute and was sustained by the U.S. Supreme Court, holding that the advocacy of
illegal action becomes punishable only if such advocacy is directed to inciting or producing imminent lawless action and is likely to
incite or produce such action.45 Except in unusual instances, Brandenburg protects the advocacy of lawlessness as long as such
speech is not translated into action.

The importance of the Brandenburg ruling cannot be overemphasized. Prof. Smolla affirmed that "Brandenburg must be understood as
overruling Beauharnais and eliminating the possibility of treating group libel under the same First Amendment standards as individual
libel."46 It may well be considered as one of the lynchpins of the modern doctrine of free speech, which seeks to give special protection
to politically relevant speech.

In any case, respondents' lack of cause of action cannot be cured by the filing of a class suit. As correctly pointed out by Mr. Justice
Jose C. Vitug during the deliberations, "an element of a class suit is the adequacy of representation. In determining the question of fair
and adequate representation of members of a class, the court must consider (a) whether the interest of the named party is coextensive
with the interest of the other members of the class; (b) the proportion of those made parties as it so bears to the total membership of the
class; and, (c) any other factor bearing on the ability of the named party to speak for the rest of the class.47

The rules require that courts must make sure that the persons intervening should be sufficiently numerous to fully protect the interests
of all concerned. In the present controversy, Islamic Da'wah Council of the Philippines, Inc., seeks in effect to assert the interests not
only of the Muslims in the Philippines but of the whole Muslim world as well. Private respondents obviously lack the sufficiency of
numbers to represent such a global group; neither have they been able to demonstrate the identity of their interests with those they
seek to represent. Unless it can be shown that there can be a safe guaranty that those absent will be adequately represented by those
present, a class suit, given its magnitude in this instance, would be unavailing."48

Likewise on the matter of damages, we agree that "moral damages may be recovered only if the plaintiff is able to satisfactorily prove
the existence of the factual basis for the damages and its causal connection with the acts complained of,49 and so it must be, as moral
damages although incapable of pecuniary estimation are designed not to impose a penalty but to compensate for injury sustained and
actual damages suffered.50 Exemplary damages, on the other hand, may only be awarded if claimant is able to establish his right to
moral, temperate, liquidated or compensatory damages.51 Unfortunately, neither of the requirements to sustain an award for either of
these damages would appear to have been adequately established by respondents."

In a pluralistic society like the Philippines where misinformation about another individual's religion is as commonplace as self-appointed
critics of government, it would be more appropriate to respect the fair criticism of religious principles, including those which may be
outrageously appalling, immensely erroneous, or those couched as fairly informative comments. The greater danger in our society is
the possibility that it may encourage the frequency of suits among religious fundamentalists, whether Christian, Muslim, Hindu,
Buddhist, Jewish, or others. This would unnecessarily make the civil courts a battleground to assert their spiritual ideas, and advance
their respective religious agenda.

It need not be stressed that this Court has no power to determine which is proper religious conduct or belief; neither does it have the
authority to rule on the merits of one religion over another, nor declare which belief to uphold or cast asunder, for the validity of religious
beliefs or values are outside the sphere of the judiciary. Such matters are better left for the religious authorities to address what is
rightfully within their doctrine and realm of influence. Courts must be viewpoint-neutral when it comes to religious matters if only to
affirm the neutrality principle of free speech rights under modern jurisprudence where "[a]ll ideas are treated equal in the eyes of the
First Amendment — even those ideas that are universally condemned and run counter to constitutional principles."52 Under the right to
free speech, "there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the
conscience of judges and juries but on the competition of other ideas."53 Denying certiorari and affirming the appellate court decision
would surely create a chilling effect on the constitutional guarantees of freedom of speech, of expression, and of the press.

WHEREFORE, the petition is GRANTED. The assailed Decision of the Court of Appeals dated 27 August 1998 is REVERSED and SET
ASIDE, and the Decision of the RTC-Br. 4, Manila, dismissing the complaint for lack of merit, is REINSTATED and AFFIRMED. No
pronouncement as to costs.

SO ORDERED.
G.R. No. 108017 April 3, 1995

MARIA BENITA A. DULAY, in her own behalf and in behalf of the minor children KRIZTEEN ELIZABETH, BEVERLY MARIE and
NAPOLEON II, all surnamed DULAY, petitioners,
vs.
THE COURT OF APPEALS, Former Eighth Division, HON. TEODORO P. REGINO, in his capacity as Presiding Judge of the
Regional Trial Court National Capital Region, Quezon City, Br. 84, SAFEGUARD INVESTIGATION AND SECURITY CO., INC.,
and SUPERGUARD SECURITY CORPORATION, respondents.

BIDIN, J.:

This petition for certiorari  prays for the reversal of the decision of the Court of Appeals dated October 29, 1991 in CA-G.R. CV No.
24646 which affirmed the order of the Regional Trial Court dismissing Civil Case No. Q-89-1751, and its resolution dated November 17,
1991 denying herein, petitioner's motion for reconsideration.

The antecedent facts of the case are as follows:

On December 7, 1988, an altercation between Benigno Torzuela and Atty. Napoleon Dulay occurred at the "Big Bang Sa Alabang,"
Alabang Village, Muntinlupa as a result of which Benigno Torzuela, the security guard on duty at the said carnival, shot and killed Atty.
Napoleon Dulay.

Herein petitioner Maria Benita A. Dulay, widow of the deceased Napoleon Dulay, in her own behalf and in behalf of her minor children,
filed on February 8, 1989 an action for damages against Benigno Torzuela and herein private respondents Safeguard Investigation and
Security Co., Inc., ("SAFEGUARD") and/or Superguard Security Corp. ("SUPERGUARD"), alleged employers of defendant Torzuela.
The complaint, docketed as Civil Case No. Q-89-1751 among others alleges the following:

1. . . .

Defendants SAFEGUARD INVESTIGATION AND SECURITY CO., INC., (Defendant Safeguard) and SUPERGUARD
SECURITY CORPORATION (Defendant Superguard) are corporations duly organized and existing in accordance
with Philippine laws, with offices at 10th Floor, Manufacturers Building, Inc., Plaza Santa Cruz, Manila. They are
impleaded as alternative defendants for, while the former appears to be the employer of defendant BENIGNO
TORZUELA (defendant TORZUELA), the latter impliedly acknowledged responsibility for the acts of defendant
TORZUELA by extending its sympathies to plaintiffs.

Defendant BENIGNO TORZUELA is of legal age, an employee of defendant SAFEGUARD and/or defendant
SUPERGUARD and, at the time of the incident complained of, was under their control and supervision. . . .

3. On December 7, 1988 at around 8:00 a.m., defendant TORZUELA, while he was on duty as security guard at the
"Big Bang sa Alabang," Alabang Village, Muntinlupa, Metro Manila shot and killed NAPOLEON V. DULAY with a .38
caliber revolver belonging to defendant SAFEGUARD, and/or SUPERGUARD (per Police Report dated January 7,
1989, copy attached as Annex A);

4. The incident resulting in the death of NAPOLEON V. DULAY was due to the concurring negligence of the
defendants. Defendant TORZUELA'S wanton and reckless discharge of the firearm issued to him by defendant
SAFEGUARD and/or SUPERGUARD was the immediate and proximate cause of the injury, while the negligence of
defendant SAFEGUARD and/or SUPERGUARD consists in its having failed to exercise the diligence of a good father
of a family in the supervision and control of its employee to avoid the injury.xxx

(Rollo, pp. 117-118)

Petitioners prayed for actual, compensatory, moral and exemplary damages, and attorney's fees. The said Civil Case No. Q-89-1751
was raffled to Branch 84 of the Regional Trial Court of Quezon City, presided by respondent Judge Teodoro Regino.

On March 2, 1989, private respondent SUPERGUARD filed a Motion to Dismiss on the ground that the complaint does not state a valid
cause of action. SUPERGUARD claimed that Torzuela's act of shooting Dulay was beyond the scope of his duties, and that since the
alleged act of shooting was committed with deliberate intent (dolo), the civil liability therefor is governed by Article 100 of the Revised
Penal Code, which states:

Art. 100. Civil liability of a person guilty of a felony. — Every person criminally liable for a felony is also civilly liable.
Respondent SUPERGUARD further alleged that a complaint for damages based on negligence under Article 2176 of the New Civil
Code, such as the one filed by petitioners, cannot lie, since the civil liability under Article 2176 applies only to quasi-offenses under
Article 365 of the Revised Penal Code. In addition, the private respondent argued that petitioners' filing of the complaint is premature
considering that the conviction of Torzuela in a criminal case is a condition sine qua non  for the employer's subsidiary liability (Rollo, p.
55-59).

Respondent SAFEGUARD also filed a motion praying that it be excluded as defendant on the ground that defendant Torzuela is not
one of its employees (Rollo, p. 96).

Petitioners opposed both motions, stating that their cause of action against the private respondents is based on their liability under
Article 2180 of the New Civil Code, which provides:

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

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

(Emphasis supplied)

Petitioners contended that a suit against alternative defendants is allowed under Rule 3, Section 13 of the Rules of Court. Therefore,
the inclusion of private respondents as alternative defendants in the complaint is justified by the following: the Initial Investigation
Report prepared by Pat. Mario Tubon showing that Torzuela is an employee of SAFEGUARD; and through overt acts, SUPERGUARD
extended its sympathies to petitioners (Rollo, pp. 64 and 98).

Meanwhile, an Information dated March 21, 1989 charging Benigno Torzuela with homicide was filed before the Regional Trial Court of
Makati and was docketed as Criminal Case No. 89-1896.

On April 13, 1989, respondent Judge Regino issued an order granting SUPERGUARD'S motion to dismiss and SAFEGUARD'S motion
for exclusion as defendant. The respondent judge held that the complaint did not state facts necessary or sufficient to constitute a
quasi-delict since it does not mention any negligence on the part of Torzuela in shooting Napoleon Dulay or that the same was done in
the performance of his duties. Respondent judge ruled that mere allegations of the concurring negligence of the defendants (private
respondents herein) without stating the facts showing such negligence are mere conclusions of law (Rollo, p. 106). Respondent judge
also declared that the complaint was one for damages founded on crimes punishable under Articles 100 and 103 of the Revised Penal
Code as distinguished from those arising from, quasi-delict. The dispositive portion of the order dated April 13, 1989 states:

WHEREFORE, this Court holds that in view of the material and ultimate facts alleged in the verified complaint and in
accordance with the applicable law on the matter as well as precedents laid down by the Supreme Court, the
complaint against the alternative defendants Superguard Security Corporation and Safeguard Investigation and
Security Co., Inc., must be and (sic) it is hereby dismissed. (Rollo, p. 110)

The above order was affirmed by the respondent court and petitioners' motion for reconsideration thereof was denied.

Petitioners take exception to the assailed decision and insist that quasi-delicts are not limited to acts of negligence but also cover acts
that are intentional and voluntary, citing Andamo v. IAC (191 SCRA 195 [1990]). Thus, petitioners insist that Torzuela' s act of shooting
Napoleon Dulay constitutes a quasi-delict actionable under Article 2176 of the New Civil Code.

Petitioners further contend that under Article 2180 of the New Civil Code, private respondents are primarily liable for their negligence
either in the selection or supervision of their employees. This liability is independent of the employee's own liability for fault or
negligence and is distinct from the subsidiary civil liability under Article 103 of the Revised Penal Code. The civil action against the
employer may therefore proceed independently of the criminal action pursuant to Rule 111 Section 3 of the Rules of Court. Petitioners
submit that the question of whether Torzuela is an employee of respondent SUPERGUARD or SAFEGUARD would be better resolved
after trial.

Moreover, petitioners argue that Torzuela's act of shooting Dulay is also actionable under Article 33 of the New Civil Code, to wit:

Art. 33. In cases of defamation, fraud, and physical injuries, a civil action for damages, entirely separate and distinct
from the criminal action, may be brought by the injured party. Such civil action shall proceed independently of the
criminal prosecution, and shall require only a preponderance of evidence. (Emphasis supplied)

In the same vein, petitioners cite Section 3, Rule 111 of the Rules of Court which provides:

Rule 111. . . . .
 Sec. 3. When civil action may proceed independently — In the cases provided for in Articles 32, 33, 34 and 2176 of
the Civil Code of the Philippines, the independent civil action which has been reserved may be brought by the
offended party, shall proceed independently of the criminal action, and shall require only a preponderance of
evidence. (Emphasis supplied)

The term "physical injuries" under Article 33 has been held to include consummated, frustrated and attempted homicide. Thus,
petitioners maintain that Torzuela's prior conviction is unnecessary since the civil action can proceed independently of the criminal
action. On the other hand, it is the private respondents' argument that since the act was not committed with negligence, the petitioners
have no cause of action under Articles 2116 and 2177 of the New Civil Code. The civil action contemplated in Article 2177 is not
applicable to acts committed with deliberate intent, but only applies to quasi-offenses under Article 365 of the Revised Penal Code.
Torzuela's act of shooting Atty. Dulay to death, aside from being purely personal, was done with deliberate intent and could not have
been part of his duties as security guard. And since Article 2180 of the New Civil Code covers only: acts done within the scope of the
employee's assigned tasks, the private respondents cannot be held liable for damages.

We find for petitioners.

It is undisputed that Benigno Torzuela is being prosecuted for homicide for the fatal shooting of Napoleon Dulay. Rule 111 of the Rules
on Criminal Procedure provides:

Sec. 1. Institution of criminal and civil actions. When a criminal action is instituted, the civil action for the recovery of
civil liability is impliedly instituted with the criminal action, unless the offended party waives the civil action , reserves
his right to institute it separately or institutes the civil action prior to the criminal action.

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

It is well-settled that the filing of an independent civil action before the prosecution in the criminal action presents evidence is even far
better than a compliance with the requirement of express reservation (Yakult Philippines v. Court of Appeals, 190 SCRA 357 [1990]).
This is precisely what the petitioners opted to do in this case. However, the private respondents opposed the civil action on the ground
that the same is founded on a delict and not on a quasi-delict as the shooting was not attended by negligence. What is in dispute
therefore is the nature of the petitioner's cause of action.

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

Article 2176 of the New Civil Code provides:

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

Contrary to the theory of private respondents, there is no justification for limiting the scope of Article 2176 of the Civil Code to acts or
omissions resulting from negligence. Well-entrenched is the doctrine that article 2176 covers not only acts committed with negligence,
but also acts which are voluntary and intentional. As far back as the definitive case of Elcano v. Hill (77 SCRA 98 [1977]), this Court
already held that:

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

The same doctrine was echoed in the case of Andamo v. Intermediate Appellate Court  (191 SCRA 195 [1990]), wherein the Court held:
 Article 2176, whenever it refers to "fault or negligence," covers not only acts criminal in character, whether intentional
and voluntary or negligent. Consequently, a civil action lies against the offender in a criminal act, whether or not he is
prosecuted or found guilty or acquitted, provided that the offended party is not allowed, (if the tortfeasor is actually
also charged criminally), to recover damages on both scores, and would be entitled in such eventuality only to the
bigger award of the two, assuming the awards made in the two cases vary. [citing Virata v. Ochoa, 81 SCRA 472]
(Emphasis supplied)

Private respondents submit that the word "intentional" in the Andamo case is inaccurate obiter, and should be read as "voluntary" since
intent cannot be coupled with negligence as defined by Article 365 of the Revised Penal Code. In the absence of more substantial
reasons, this Court will not disturb the above doctrine on the coverage of Article 2176.

Private respondents further aver that Article 33 of the New Civil Code applies only to injuries intentionally committed pursuant to the
ruling in Marcia v. CA (120 SCRA 193 [1983]), and that the actions for damages allowed thereunder are ex-delicto. However, the term
"physical injuries" in Article 33 has already been construed to include bodily injuries causing death (Capuno v. Pepsi-Cola Bottling Co.
of the Philippines, 121 Phil. 638 [1965); Carandang v. Santiago, 97 Phil. 94 [1955]). It is not the crime of physical injuries defined in the
Revised Penal Code. It includes not only physical injuries but also consummated, frustrated, and attempted homicide (Madeja v. Caro,
126 SCRA 293 [1983]). Although in the Marcia case (supra), it was held that no independent civil action may be filed under Article 33
where the crime is the result of criminal negligence, it must be noted however, that Torzuela, the accused in the case at bar, is charged
with homicide, not with reckless imprudence, whereas the defendant in Marcia was charged with reckless imprudence. Therefore, in
this case, a civil action based on Article 33 lies.

Private respondents also contend that their liability is subsidiary under the Revised Penal Code; and that they are not liable for
Torzuela's act which is beyond the scope of his duties as a security guard. It having been established that the instant action is not ex-
delicto, petitioners may proceed directly against Torzuela and the private respondents. Under Article 2180 of the New Civil Code as
aforequoted, when an injury is caused by the negligence of the employee, there instantly arises a presumption of law that there was
negligence on the part of the master or employer either in the selection of the servant or employee, or in supervision over him after
selection or both (Layugan v. Intermediate Appellate Court, 167 SCRA 363 [1988]). The liability of the employer under Article 2180 is
direct and immediate; it is not conditioned upon prior recourse against the negligent employee and a prior showing of the insolvency of
such employee (Kapalaran Bus Lines v. Coronado, 176 SCRA 792 [1989]). Therefore, it is incumbent upon the private respondents to
prove that they exercised the diligence of a good father of a family in the selection and supervision of their employee.

Since Article 2176 covers not only acts of negligence but also acts which are intentional and voluntary, it was therefore erroneous on
the part of the trial court to dismiss petitioner's complaint simply because it failed to make allegations of attendant negligence
attributable to private respondents.

With respect to the issue of whether the complaint at hand states a sufficient cause of action, the general rule is that the allegations in a
complaint are sufficient to constitute a cause of action against the defendants if, admitting the facts alleged, the court can render a valid
judgment upon the same in accordance with the prayer therein. A cause of action exist if the following elements are present, namely:
(1) a right in favor of the plaintiff by whatever means and under whatever law it arises or is created; (2) an obligation on the part of the
named defendant to respect or not to violate such right; and (3) an act or omission on the part of such defendant violative of the right of
the plaintiff or constituting a breach of the obligation of the defendant to the plaintiff for which the latter may maintain an action for
recovery of damages (Del Bros Hotel Corporation v. CA, 210 SCRA 33 [1992]); Development Bank of the Philippines v. Pundogar, 218
SCRA 118 [1993])

This Court finds, under the foregoing premises, that the complaint sufficiently alleged an actionable breach on the part of the defendant
Torzuela and respondents SUPERGUARD and/or SAFEGUARD. It is enough that the complaint alleged that Benigno Torzuela shot
Napoleon Dulay resulting in the latter's death; that the shooting occurred while Torzuela was on duty; and that either SUPERGUARD
and/or SAFEGUARD was Torzuela's employer and responsible for his acts. This does not operate however, to establish that the
defendants below are liable. Whether or not the shooting was actually reckless and wanton or attended by negligence and whether it
was actually done within the scope of Torzuela's duties; whether the private respondents SUPERGUARD and/or SAFEGUARD failed to
exercise the diligence of a good father of a family; and whether the defendants are actually liable, are questions which can be better
resolved after trial on the merits where each party can present evidence to prove their respective allegations and defenses. In
determining whether the allegations of a complaint are sufficient to support a cause of action, it must be borne in mind that the
complaint does not have to establish or allege the facts proving the existence of a cause of action at the outset; this will have to be
done at the trial on the merits of the case (Del Bros Hotel Corporation v. CA, supra). If the allegations in a complaint can furnish a
sufficient basis by which the complaint can be maintained, the same should not be dismissed regardless of the defenses that may be
assessed by the defendants (Rava Dev't. Corp. v. CA, 211 SCRA 152 [1992] citing Consolidated Bank & Trust Corporation v. Court of
Appeals, 197 SCRA 663 [1991]). To sustain a motion to dismiss for lack of cause of action, the complaint must show that the claim for
relief does not exist rather than that a claim has been defectively stated, is ambiguous, indefinite or uncertain (Azur v. Provincial Board,
27 SCRA 50 [1969]). Since the petitioners clearly sustained an injury to their rights under the law, it would be more just to allow them to
present evidence of such injury.

WHEREFORE, premises considered, the petition for review is hereby GRANTED. The decision of the Court of Appeals as well as the
Order of the Regional Trial Court dated April 13, 1989 are hereby REVERSED and SET ASIDE. Civil Case No. Q-89-1751 is remanded
to the Regional Trial Court for trial on the merits. This decision is immediately executory. SO ORDERED.
G.R. No. 82562 April 11, 1997

LYDIA VILLEGAS, MA TERESITA VILLEGAS, ANTONIO VILLEGAS, JR., and ANTONIETTE VILLEGAS, petitioners,
vs.
THE COURT OF APPEALS, PEOPLE OF THE PHILIPPINES and ANTONIO V. RAQUIZA, respondents.

G.R. No. 82592 April 11, 1997

ANTONIO V. RAQUIZA, petitioner,
vs.
COURT OF APPEALS, LYDIA A. VILLEGAS, ANTONIO VILLEGAS, JR., MA. ANTONETTE VILLEGAS, MA. LYDIA VILLEGAS and
ESTATE OF ANTONIO J. VILLEGAS, respondents.

ROMERO, J.:

This case originated from a libel suit filed by then Assemblyman Antonio V. Raquiza against then Manila Mayor Antonio J. Villegas, who
allegedly publicly imputed to him acts constituting violations of the Anti-Graft and Corrupt Practices Act. He did this on several
occasions in August 1968 through (a) a speech before the Lion's Club of Malasiqui, Pangasinan on August 10; (b) public statements in
Manila on August 13 and in Davao on August 17, which was coupled with a radio-TV interview; and (c) a public statement shortly prior
to his appearance before the Senate Committee on Public Works (the Committee) on August 20 to formally submit a letter-complaint
implicating Raquiza, among other government officials.

The Committee, however, observed that all the allegations in the complaint were based mainly on the uncorroborated testimony of a
certain Pedro U. Fernandez, whose credibility turned out to be highly questionable. Villegas also failed to submit the original copies of
his documentary evidence. Thus, after thorough investigation, Raquiza was cleared of all charges by the Committee. 1 All these acts of
political grandstanding received extensive media coverage.

On July 25, 1969, an information for libel was filed by the Office of the City Fiscal of Manila with the then Court of First Instance of
Manila against Villegas who denied the charge. After losing in the 1971 elections, Villegas left for the United States where he stayed
until his death on November 16, 1984. Nevertheless, trial proceeded on absentia by the time of his death the in 1984, the prosecution
had already rested its case Two months after notice of his death, the court issued an order dismissing the crimal aspect of the case but
reserving the right to resolve its civil aspect. No memorandum was ever filed in his behalf.

Judge Marcelo R. Obien 2 rendered judgment on March 7, 1985, the dispositive portion of which was amended on March 26 to read as
follows:

WHEREFORE, and in view of the foregoing considerations, judgment is hereby rendered as follows:

1. The dismissal of the criminal case against Antonio J. Vlllegas, on account of his death on November 16, 1984. is
hereby reiterated.

2. Ordenng the estate of Antonio J. Villegas, represented herein by his legal heirs, namely: Lydia A Villegas, Ma.
Teresita Villegas, Antonio Villegas, Jr., Ma. Anton(i)ette Villegas, and Ma. Lydia Villegas (sic), to pay plaintiff Antonio
V. Raquiza Two Hundred Million Pesos (P200,000,000.00), itemized as follows:

a) One Hundred Fifty Million Pesos (P150.000.000.00) as moral damages:

b) Two Hundred Thousand Pesos (P200.000.00) as actual damages:

c) Forty-nine Million Eight Hundred Thousand Pesos (P49,800,000.00) as exemplary damages; and

d) The cost of suit.

SO ORDERED. 3 (Amendments underscored)

The heirs of Villegas (the Heirs), through their father's counsel, Atty. Norberto, Quisumbing appealed the decision on these three main
grounds:

1. Whether the trial court, three months after notice of the death of the accused and before his counsel could file a
memorandum in his behalf, could velidly render judgment in the case?
 2. Whether in the absence of formal substitution of parties, the trial court could validly render judgment against the
heirs and estate of a deceased accused?

3 Whether, under the facts of the instant case, deceased Villegas was liable for libel, and assuming he was, whether
the damages awarded by the trial court were just and reasonable?

On March 15, 1988, the Court of Appeals rendered a decision affirming the trial court's judgment modified only with respect to the
award of damages which was reduced to P2 million representing P1.5 million, P300,000.00, and P200,000.00 in moral exemplary and
actual damages, respectively. Both parties elevated said decision to this Court for review

In their petition (G.R. No. 82562), the Heirs once again raise the very same issues brought before the Court of Appeals, albeit
reworded. On the other hand, petitioner Requiza (G.R. No. 82592) questions the extensions of time to file appellant's brief granted by
the appellate court to the Heirs, as well as the drastic reduction in the award of damages.

It is immediately apparent that the focal issue in these petitions is the effect of the death of Villegas before the case was decided by the
trial court. Stated otherwise, did the death of the accused before final judgment extinguish his civil liability?

Fortunately, this Court has already settled this issue with the promulgation of the case of People v. Bayotas  (G.R. No. 102007) on
September 2, 1994, 4 viz.:

It is thus evident that as jurisprudence evolved from Castillo 5 to Torrijos, 6 the rule established was that the survival
of the civil liability depends on whether the same can be predicated on sources of obligations other than delict. Stated
differently, the claim for civil liability is also extinguished together with the criminal action if it were solely based
thereon, i.e., civil liability ex delicto.

xxx xxx xxx

(I)n recovering damages for injury to persons thru an independent civil action based on Article 33 of the Civil Code,
the same must be filed against the executor or administrator of the estate of deceased accused (undet Sec. 1, Rule
87, infra.) and not against the estate under Sec. 5, Rule 86 because this rule explicitly limits the claim to those for
funeral expenses, expenses for the last sickness of the decedent, judgment for money and claims arising from
contract, express or implied. 7

xxx xxx xxx

From this lengthy dlsquisition, we summarize our ruling herein:

1 Death of the accused pending appeal of his conviction extinguishes his criminal liability as well as the civil liability
based solely thereon As opined by Justice Regalado, in this regard, "the death of the accused prior to final judgment
terminates his criminal liability and only the civil liability directly arising from and based solely on the offense
committed, i.e., civil liability ex delicto in senso strictiore."

2 Corollarily the claim for civil liability survives notwithstanding the death of (the) accused, if the same may also be
predicated on a source of obligation other than delict. Article 1157 of the Civil Code enumerates these other sources
of obligation from which the civil liability may arise as a result of the same act or omission:

a) Law

b) Contracts

c) Quasi-contracts

d) x x x x x x x x x

e) Quasi-delicts

3. Where the civil liability survives, as explained in Number 2 above, an action for recovery therefor may be pursued
but only by way of filing a separate civil action and subject to Section 1, Rule 111 of the 1985 Rules on Criminal
Procedure as amended.  8 This separate civil action may be enforced either against the executor/administrator o(f)
the estate of the accused, depending on the source of obligation upon which the same is based as explained above.
 4. Finally, the private offended party need not fear a forfeiture of his right to file this separate civil action by
prescription, in cases where during the prosecution of the criminal action and prior to its extinction, the private
offended party instituted together therewith the civil action. In such case, the statute of limitations on the civil liability
is deemed interrupted during the pendency of the criminal case, conformably with (the) provisions of Article 1155 of
the Civil Code, that should thereby avoid any apprehension on a possible privation of right by prescription. (Emphasis
supplied).

The source of Villegas' civil liability in the present case is the felonious act of libel he allegedly committed. Yet, this act could also be
deemed a quasi-delict within the purview of Article 33 9 in relation to Article 1157 of the Civil Code. If the Court ruled in Bayotas that the
death of an accused during the pendency of his appeal extinguishes not only his criminal but also his civil liability unless the latter can
be predicated on a source of obligation other than the act or omission complained of, with more reason should it apply to the case at
bar where the accused died shortly after the prosecution had rested its case and before he was able to submit his memorandum and all
this before any decision could even be reached by the trial court.

The Bayotas ruling, however, makes the enforcement of a deceased accused's civil liability dependent on two factors, namely, that it be
pursued by filing a separate civil action and that it be made subject to Section 1, Rule 111 of the 1985 Rules on Criminal Procedure, as
amended. Obviously, in the case at bar, the civil action was deemed instituted with the criminal. There was no waiver of the civil action
and no reservation of the right to institute the same, nor was it instituted prior to the criminal action. What then is the recourse of the
private offended party in a criminal case such as this which must be dismissed in accordance with the Bayotas doctrine, where the civil
action was impliedly instituted with it?

The answer is likewise provided in Bayatas, thus:

Assuming that for lack of express reservation, Belamala's civil civil for damages was to be considered instituted
together with the crinimal action still, since both proceedings were terminated without finals adjudication the civil
action of the offended party under Article 33 may yet be enforced separately 10 (Emphasis supplied)

Hence, logically, the court a quo should have dismissed both actions against Vilegas which dismissal will not, however, bar Raquiza as
the private offended party from pursuing his claim for damages against the executor or administrator of the former's estate,
notwitnstanding the fact that he did not reserve the right to institute a civil separate civil action based on Article 33 of the Civil Code.

It cannot be argued either that to follow Bayotas would result in further delay in this protracted litigation. This is because the resolution
of the civil aspect of the case after the dismissal of the main criminal action by the trial court was technically defective There was no
proper substitution of parties, as correctly pointed out by the Heirs and repeatedly put in issue by Atty. Quisumbing. What should have
been followed by the court a quo was the procedure laid down in the Rules of Court, specifically, Section 17, Rule 3, in connection with
Section 1, Rule 87. The pertinent provisions state as follws:

Rule 3

Sec.17. Death of party. — After a party dies and the claim is not there extinguished, the court shall order upon proper
notice the legal representative of the deceased to appear and to be substituted for the deceased, within a period of
thirty (30) days, or within such time as may be·granted. . . . The heirs of the deceased may be allowed to be for the
deceased, without requiring the appointment of an executor or administrator and the court may appoint guardian ad
litem  for the minor heirs.

Rule 87

Sec. 1. Actions which may and which may not be brought against or executor or administrator. — No action upon a
claim for the recovery of money or debt or interest thereon shall be commenced against the executor or
administrator; but actions to recover real or personal property, or an interest therein, from the estate, or to enforce a
lien thereon, and actions to recover damages for an injury to person or property, real or personal may be commenced
against him.

Accordingly, the Court sees no more necessity in resolving the other issues used by both parties in these petitions.

WHEREFORE, the petition in G.R. No. 82562 is GRANTED and the petition in G.R. No. 82592 is DENIED. The decisions of the Court
of Appeals in CA-G.R. CR No. 82186 dated March 15, 1988, and of the Manila Regional Trial Court, Branch 44, dated March 7, 1985,
as amended, are hereby REVERSED and SET ASIDE, without prejudice to the right of the private offended party Antonio V.  Raquiza,
to file the appropriate civil action for damages against the executor or administrator of the estate or the heirs of the late Antonto
J.  Villegas in accordance with the foregoing procedure.

SO ORDERED.