G.R. No. L-48006 July 8, 1942 applying in the case article 1903 of the Civil Code.
applying in the case article 1903 of the Civil Code. Article 1903 of the Civil Code is found in
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
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. L-24803 May 26, 1977
PEDRO ELCANO and PATRICIA ELCANO, in their capacity as Ascendants of Agapito Elcano,
deceased, plaintiffs-appellants,
vs.
REGINALD HILL, minor, and MARVIN HILL, as father and Natural Guardian of said
minor, defendants-appellees.
Cruz & Avecilla for appellants.
Marvin R. Hill & Associates for appellees.
BARREDO, J.:
Appeal from the order of the Court of First Instance of Quezon City dated January 29, 1965 in
Civil Case No. Q-8102, Pedro Elcano et al. vs. Reginald Hill et al. dismissing, upon motion to
dismiss of defendants, the complaint of plaintiffs for recovery of damages from defendant
Reginald Hill, a minor, married at the time of the occurrence, and his father, the defendant
Marvin Hill, with whom he was living and getting subsistence, for the killing by Reginald of the
son of the plaintiffs, named Agapito Elcano, of which, when criminally prosecuted, the said
accused was acquitted on the ground that his act was not criminal, because of "lack of intent to
kill, coupled with mistake."
Actually, the motion to dismiss based on the following grounds:
1. The present action is not only against but a violation of section 1, Rule 107, which is now Rule
III, of the Revised Rules of Court;
2. The action is barred by a prior judgment which is now final and or in res-adjudicata;
3. The complaint had no cause of action against defendant Marvin Hill, because he was relieved
as guardian of the other defendant through emancipation by marriage.
(P. 23, Record [p. 4, Record on Appeal.])
was first denied by the trial court. It was only upon motion for reconsideration of the defendants
of such denial, reiterating the above grounds that the following order was issued:
Considering the motion for reconsideration filed by the defendants on January 14, 1965 and
after thoroughly examining the arguments therein contained, the Court finds the same to be
meritorious and well-founded.
WHEREFORE, the Order of this Court on December 8, 1964 is hereby reconsidered by ordering
the dismissal of the above entitled case.
SO ORDERED.
Quezon City, Philippines, January 29, 1965. (p. 40, Record [p. 21, Record on Appeal.)
Hence, this appeal where plaintiffs-appellants, the spouses Elcano, are presenting for Our
resolution the following assignment of errors:
THE LOWER COURT ERRED IN DISMISSING THE CASE BY UPHOLDING THE CLAIM OF
DEFENDANTS THAT -
I
THE PRESENT ACTION IS NOT ONLY AGAINST BUT ALSO A VIOLATION OF SECTION 1, RULE 107,
NOW RULE 111, OF THE REVISED RULES OF COURT, AND THAT SECTION 3(c) OF RULE 111, RULES
OF COURT IS APPLICABLE;
II
THE ACTION IS BARRED BY A PRIOR JUDGMENT WHICH IS NOW FINAL OR RES-ADJUDICTA;
III
THE PRINCIPLES OF QUASI-DELICTS, ARTICLES 2176 TO 2194 OF THE CIVIL CODE, ARE
INAPPLICABLE IN THE INSTANT CASE; and
IV
THAT THE COMPLAINT STATES NO CAUSE OF ACTION AGAINST DEFENDANT MARVIN HILL
BECAUSE HE WAS RELIEVED AS GUARDIAN OF THE OTHER DEFENDANT THROUGH
EMANCIPATION BY MARRIAGE. (page 4, Record.)
It appears that for the killing of the son, Agapito, of plaintiffs-appellants, defendant- appellee
Reginald Hill was prosecuted criminally in Criminal Case No. 5102 of the Court of First Instance
of Quezon City. After due trial, he was acquitted on the ground that his act was not criminal
because of "lack of intent to kill, coupled with mistake." Parenthetically, none of the parties has
favored Us with a copy of the decision of acquittal, presumably because appellants do not
dispute that such indeed was the basis stated in the court's decision. And so, when appellants
filed their complaint against appellees Reginald and his father, Atty. Marvin Hill, on account of
the death of their son, the appellees filed the motion to dismiss above-referred to.
As We view the foregoing background of this case, the two decisive issues presented for Our
resolution are:
1. Is the present civil action for damages barred by the acquittal of Reginald in the criminal case
wherein the action for civil liability, was not reversed?
2. May Article 2180 (2nd and last paragraphs) of the Civil Code he applied against Atty. Hill,
notwithstanding the undisputed fact that at the time of the occurrence complained of. Reginald,
though a minor, living with and getting subsistenee from his father, was already legally married?
The first issue presents no more problem than the need for a reiteration and further clarification
of the dual character, criminal and civil, of fault or negligence as a source of obligation which
was firmly established in this jurisdiction in Barredo vs. Garcia, 73 Phil. 607. In that case, this
Court postulated, on the basis of a scholarly dissertation by Justice Bocobo on the nature
of culpa aquiliana in relation to culpa criminal or delito and mere culpa or fault, with pertinent
citation of decisions of the Supreme Court of Spain, the works of recognized civilians, and earlier
jurisprudence of our own, that the same given act can result in civil liability not only under the
Penal Code but also under the Civil Code. Thus, the opinion holds:
The, above case is pertinent because it shows that the same act machinist. come under both
the Penal Code and the Civil Code. In that case, the action of the agent killeth 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. (pp. 615-616, 73
Phil.). 1
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 individuality 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. (p. 617,
73 Phil.) 2
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. (p. 618, 73 Phil.) 3
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 he inappropriate to indicate their foundations.
Firstly, the Revised Penal Code in articles 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, accordingly 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 Idemnified 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.
Secondary, 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 Idemnified remedium." (p. 620,73 Phil.)
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 harms
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 or private rights because it realtor, 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. (p. 621, 73 Phil.)
Contrary to an immediate impression one might get upon a reading of the foregoing excerpts
from the opinion in Garcia that the concurrence of the Penal Code and the Civil Code therein
referred to contemplate only acts of negligence and not intentional voluntary acts - deeper
reflection would reveal that the thrust of the pronouncements therein is not so limited, but that
in fact it actually extends to fault or culpa. This can be seen in the reference made therein to
the Sentence of the Supreme Court of Spain of February 14, 1919, supra, which involved a case
of fraud or estafa, not a negligent act. Indeed, Article 1093 of the Civil Code of Spain, in force
here at the time of Garcia, provided textually that obligations "which are derived from acts or
omissions in which fault or negligence, not punishable by law, intervene shall be the subject of
Chapter II, Title XV of this book (which refers to quasi-delicts.)" And it is precisely the underline
qualification, "not punishable by law", that Justice Bocobo emphasized could lead to an ultimo
construction or interpretation of the letter of the law that "killeth, rather than the spirit that
giveth lift- hence, the ruling that "(W)e 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 quasi-delito, which is conserved and made enduring in articles 1902 to
1910 of the Spanish Civil Code." And so, because Justice Bacobo was Chairman of the Code
Commission that drafted the original text of the new Civil Code, it is to be noted that the said
Code, which was enacted after the Garcia doctrine, no longer uses the term, 11 not punishable
by law," thereby making it clear that the concept of culpa aquiliana includes acts which are
criminal in character or in violation of the penal law, whether voluntary or matter. Thus, the
corresponding provisions to said Article 1093 in the new code, which is Article 1162, simply says,
"Obligations derived from quasi-delicto shall be governed by the provisions of Chapter 2, Title
XVII of this Book, (on quasi-delicts) and by special laws." More precisely, a new provision, Article
2177 of the new code provides:
ART. 2177. Responsibility for fault or negligence under the preceding article is entirely separate
and distinct from the civil liability arising from negligence under the Penal Code. But the plaintiff
cannot recover damages twice for the same act or omission of the defendant.
According to the Code Commission: "The foregoing provision (Article 2177) through at first sight
startling, is not so novel or extraordinary when we consider the exact nature of criminal and civil
negligence. The former is a violation of the criminal law, while the latter is a "culpa aquiliana"
or quasi-delict, of ancient origin, having always had its own foundation and individuality,
separate from criminal negligence. Such distinction between criminal negligence and "culpa
extracontractual" or "cuasi-delito" has been sustained by decision of the Supreme Court of Spain
and maintained as clear, sound and perfectly tenable by Maura, an outstanding Spanish jurist.
Therefore, under the proposed Article 2177, acquittal from an accusation of criminal
negligence, whether on reasonable doubt or not, shall not be a bar to a subsequent civil action,
not for civil liability arising from criminal negligence, but for damages due to a quasi-delict or
'culpa aquiliana'. But said article forestalls a double recovery.", (Report of the Code)
Commission, p. 162.)
Although, again, this Article 2177 does seem to literally refer to only acts of negligence, the
same argument of Justice Bacobo about construction that upholds "the spirit that giveth lift-
rather than that which is literal that killeth the intent of the lawmaker should be observed in
applying the same. And considering that the preliminary chapter on human relations of the new
Civil Code definitely establishes the separability and independence of liability in a civil action for
acts criminal in character (under Articles 29 to 32) from the civil responsibility arising from crime
fixed by Article 100 of the Revised Penal Code, and, in a sense, the Rules of Court, under Sections
2 and 3 (c), Rule 111, contemplate also the same separability, it is "more congruent with the
spirit of law, equity and justice, and more in harmony with modern progress"- to borrow the
felicitous relevant language in Rakes vs. Atlantic. Gulf and Pacific Co., 7 Phil. 359, to hold, as We
do hold, that Article 2176, where it refers to "fault or negligencia 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 lies 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 a quasi-
delict only and not as a crime is not estinguished 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.4
It results, therefore, that the acquittal of Reginal Hill in the criminal case has not extinguished
his liability for quasi-delict, hence that acquittal is not a bar to the instant action against him.
Coming now to the second issue about the effect of Reginald's emancipation by marriage on
the possible civil liability of Atty. Hill, his father, it is also Our considered opinion that the
conclusion of appellees that Atty. Hill is already free from responsibility cannot be upheld.
While it is true that parental authority is terminated upon emancipation of the child (Article 327,
Civil Code), and under Article 397, emancipation takes place "by the marriage of the minor
(child)", it is, however, also clear that pursuant to Article 399, emancipation by marriage of the
minor is not really full or absolute. Thus "(E)mancipation by marriage or by voluntary concession
shall terminate parental authority over the child's person. It shall enable the minor to administer
his property as though he were of age, but he cannot borrow money or alienate or encumber
real property without the consent of his father or mother, or guardian. He can sue and be sued
in court only with the assistance of his father, mother or guardian."
Now under Article 2180, "(T)he obligation imposed by article 2176 is demandable not only for
one's own acts or omissions, but also for those of persons for whom one is responsible. The
father and, in case of his death or incapacity, the mother, are responsible. The father and, in
case of his death or incapacity, the mother, are responsible for the damages caused by the
minor children who live in their company." In the instant case, it is not controverted that
Reginald, although married, was living with his father and getting subsistence from him at the
time of the occurrence in question. Factually, therefore, Reginald was still subservient to and
dependent on his father, a situation which is not unusual.
It must be borne in mind that, according to Manresa, the reason behind the joint and solidary
liability of presuncion with their offending child under Article 2180 is that is the obligation of
the parent to supervise their minor children in order to prevent them from causing damage to
third persons. 5 On the other hand, the clear implication of Article 399, in providing that a minor
emancipated by marriage may not, nevertheless, sue or be sued without the assistance of the
parents, is that such emancipation does not carry with it freedom to enter into transactions or
do any act that can give rise to judicial litigation. (See Manresa, Id., Vol. II, pp. 766-767, 776.)
And surely, killing someone else invites judicial action. Otherwise stated, the marriage of a minor
child does not relieve the parents of the duty to see to it that the child, while still a minor, does
not give answerable for the borrowings of money and alienation or encumbering of real
property which cannot be done by their minor married child without their consent. (Art. 399;
Manresa, supra.)
Accordingly, in Our considered view, Article 2180 applies to Atty. Hill notwithstanding the
emancipation by marriage of Reginald. However, inasmuch as it is evident that Reginald is now
of age, as a matter of equity, the liability of Atty. Hill has become milling, subsidiary to that of
his son.
WHEREFORE, the order appealed from is reversed and the trial court is ordered to proceed in
accordance with the foregoing opinion. Costs against appellees.
G.R. No. L-46179 January 31, 1978
CANDIDA VIRATA, TOMAS VIRATA, MANOLITO VIRATA, EDERLINDA VIRATA, NAPOLEON VIRATA,
ARACELY VIRATA, ZENAIDA VIRATA, LUZMINDA VIRATA, PACITA VIRATA, and EVANGELINA
VIRATA, petitioners,
vs.
VICTORIO OCHOA, MAXIMO BORILLA and THE COURT OF FIRST INSTANCE OF CAVITE, 7th
JUDICIAL DISTRICT, BRANCH V, stationed at BACOOR, CAVITE, respondents.
Remulla, Estrella & Associates for petitioners
Exequil C. Masangkay for respondents.
FERNANDEZ, J.:
This is an appeal by certiorari, from the order of the Court of First Instance of Cavite, Branch V,
in Civil Case No. B-134 granting the motion of the defendants to dismiss the complaint on the
ground that there is another action pending between the same parties for the same cause. 1
The record shows that on September 24, 1975 one Arsenio Virata died as a result of having been
bumped while walking along Taft Avenue, Pasay City by a passenger jeepney driven by Maximo
Borilla and registered in the name Of Victoria Ochoa; that Borilla is the employer of Ochoa; that
for the death of Arsenio Virata, a action for homicide through reckless imprudence was
instituted on September 25, 1975 against Maximo Borilla in the Court of First Instance of Rizal
at Pasay City, docketed as C Case No. 3162-P of said court; that at the hearing of the said criminal
case on December 12, 1975, Atty. Julio Francisco, the private prosecutor, made a reservation to
file a separate civil action for damages against the driver on his criminal liability; that on
February 19, 1976 Atty. Julio Francisco filed a motion in said c case to withdraw the reservation
to file a separate civil action; that thereafter, the private prosecutor actively participated in the
trial and presented evidence on the damages; that on June 29, 1976 the heirs of Arsenio Virata
again reserved their right to institute a separate civil action; that on July 19, 1977 the heirs of
Arsenio Virata, petitioners herein, commenced Civil No. B-134 in the Court of First Instance of
Cavite at Bacoor, Branch V, for damages based on quasi-delict against the driver Maximo Borilla
and the registered owner of the jeepney, Victorio Ochoa; that on August 13, 1976 the
defendants, private respondents filed a motion to dismiss on the ground that there is another
action, Criminal Case No. 3162-P, pending between the same parties for the same cause; that
on September 8, 1976 the Court of First Instance of Rizal at Pasay City a decision in Criminal
Case No. 3612-P acquitting the accused Maximo Borilla on the ground that he caused an injury
by name accident; and that on January 31, 1977, the Court of First Instance of Cavite at Bacoor
granted the motion to Civil Case No. B-134 for damages. 2
The principal issue is weather or not the of the Arsenio Virata, can prosecute an action for the
damages based on quasi-delict against Maximo Borilla and Victoria Ochoa, driver and owner,
respectively on the passenger jeepney that bumped Arsenio Virata.
It is settled that in negligence cases the aggrieved parties may choose between an action under
the Revised Penal Code or of quasi-delict under Article 2176 of the Civil Code of the Philippines.
What is prohibited by Article 2177 of the Civil Code of the Philippines is to recover twice for the
same negligent act.
The Supreme Court has held that:
According to the Code Commission: 'The foregoing provision (Article 2177) though at first sight
startling, is not so novel or extraordinary when we consider the exact nature of criminal and civil
negligence. The former is a violation of the criminal law, while the latter is a 'culpa aquiliana' or
quasi-delict, of ancient origin, having always had its own foundation and individuality, separate
from criminal negligence. Such distinction between criminal negligence and 'culpa extra-
contractual' or quasi-delito has been sustained by decision of the Supreme Court of Spain and
maintained as clear, sound and perfectly tenable by Maura, an outstanding Spanish jurist.
Therefore, under the proposed Article 2177, acquittal from an accusation of criminal
negligence, whether on reasonable doubt or not, shall not be a bar to a subsequent civil action,
not for civil liability arising from criminal negligence, but for damages due to a quasi-delict or
'culpa aquiliana'. But said article forestalls a double recovery. (Report of the Code Commission,
p. 162.)
Although, again, this Article 2177 does seem to literally refer to only acts of negligence, the
same argument of Justice Bocobo about construction that upholds 'the spirit that given life'
rather than that which is literal that killeth the intent of the lawmaker should be observed in
applying the same. And considering that the preliminary chapter on human relations of the new
Civil Code definitely establishes the separability and independence of liability in a civil action for
acts criminal in character (under Articles 29 to 32) from the civil responsibility arising from crime
fixed by Article 100 of the Penal Code, and, in a sense, the Rules of Court, under Sections 2 and
3(c), Rule 111, contemplate also the same separability, it is 'more congruent' with the spirit of
law, equity and justice, and more in harmony with modern progress', to borrow the felicitous
language in Rakes vs. Atlantic Gulf and Pacific Co., 7 Phil. to 359, to hod as We do hold, that
Article 2176, where it refers to 'fault covers not only acts 'not punishable by law' but also
criminal in character, whether intentional and voluntary or consequently, a separate civil action
lies against the in a criminal act, whether or not he is criminally prosecuted and found guilty and
acquitted, provided that the offended party is not allowed, if he is actually charged also
criminally, to recover damages on both scores, and would be entitled in such eventuality only
to the bigger award of the, two assuming the awards made in the two cases vary. In other words
the extinction of civil liability refereed to in Par. (c) of Section 13, Rule 111, refers exclusively to
civil liability founded on Article 100 of the Revised Penal Code, whereas the civil liability for the
same act considered as a quasi-delict only and not as a crime is not extinguished even by a
declaration in the criminal case that the criminal act charged has not happened or has not been
committed by the accused. Brief stated, We hold, in reitration of Garcia, that culpa aquilina
includes voluntary and negligent acts which may be punishable by law. 3
The petitioners are not seeking to recover twice for the same negligent act. Before Criminal
Case No. 3162-P was decided, they manifested in said criminal case that they were filing a
separate civil action for damages against the owner and driver of the passenger jeepney based
on quasi-delict. The acquittal of the driver, Maximo Borilla, of the crime charged in Criminal Case
No. 3162-P is not a bar to the prosecution of Civil Case No. B-134 for damages based on quasi-
delict The source of the obligation sought to be enforced in Civil Case No. B-134 is quasi-delict,
not an act or omission punishable by law. Under Article 1157 of the Civil Code of the Philippines,
quasi-delict and an act or omission punishable by law are two different sources of obligation.

Moreover, for the petitioners to prevail in the action for damages, Civil Case No. B-134, they
have only to establish their cause of action by preponderance of the evidence.

WHEREFORE, the order of dismissal appealed from is hereby set aside and Civil Case No. B-134
is reinstated and remanded to the lower court for further proceedings, with costs against the
private respondents.

SO ORDERED.
G.R. No. 78911-25 December 11, 1987
CHARMINA B. BANAL, petitioner,
vs.
THE HON. TOMAS V. TADEO, JR., Presiding Judge, RTC-Quezon City, Branch 105 and Rosario
Claudia respondents.
GUTIERREZ, JR., J.:
This is a petition for certiorari to review and set aside the orders of the respondent Regional
Trial Court, Branch 105, Quezon City dated (1) 8 January 1987 which rejected the appearance
of Atty. Nicolito L. Bustos as private prosecutor in Criminal Cases Nos. Q-40909 to Q-40913
where respondent Rosario Claudio is the accused for violation of Batas Pambansa Blg. 22; and
(2) 31 March 1987 which denied the petitioner's motion for reconsideration of the order dated
8 January 1987; and for mandamus to allow Atty. Bustos to enter his appearance as private
prosecutor in the aforestated criminal cases.
It appears that fifteen (15) separate informations for violation of Batas Pambansa Blg. 22 or the
Bouncing Checks Law, docketed as Criminal Cases Nos. 40909-40913, were filed against
respondent Claudio before the Regional Trial Court of Quezon City and originally assigned to
Branch 84.
The presiding judge of Branch 84 inhibited himself when respondent Claudio, through counsel,
filed a petition for recuse dated May 19,1986.
The cases were re-raffled and consequently assigned on June 25, 1986 to Branch 105 which was
then presided over by Judge Johnico G. Serquina
During these proceedings, respondent Claudio was finally arraigned on November 20, 1986
where she pleaded not guilty to the charges. Pre-trial was then set on January 8, 1987.
In the meantime Judge Tomas V. Tadeo, Jr. replaced Judge Serquina as presiding judge of Branch
105.
On January 8, 1987, the respondent court issued an order rejecting the appearance of Atty.
Nicolito L. Bustos as private prosecutor on the ground that the charge is for the violation of
Batas Pambansa Blg. 22 which does not provide for any civil liability or indemnity and hence, "it
is not a crime against property but public order."
The petitioner, through counsel filed a motion for reconsideration of the order dated 8 January
1987 on March 10, 1987.
Respondent Claudio filed her opposition to the motion for reconsideration on March 25, 1987.
In an order dated 31 March 1987, the respondent court denied petitioner's motion for
reconsideration.
Hence, this petition questioning the orders of the respondent Court.
The issue to be resolved is whether or not the respondent Court acted with grave abuse of
discretion or in excess of its jurisdiction in rejecting the appearance of a private prosecutor.
The respondents make capital of the fact that Batas Pambansa Blg. 22 punishes the act of
knowingly issuing worthless checks as an offense against public order. As such, it is argued that
it is the State and the public that are the principal complainants and, therefore, no civil
indemnity is provided for by Batas Pambansa Blg. 22 for which a private party or prosecutor
may intervene.
On the other hand, the petitioner, relying on the legal axiom that "Every man criminally liable is
also civilly liable," contends that indemnity may be recovered from the offender regardless of
whether or not Batas Pambansa Blg. 22 so provides.
A careful study of the concept of civil liability allows a solution to the issue in the case at bar.
Generally, the basis of civil liability arising from crime is the fundamental postulate of our law
that "Every man criminally liable is also civilly liable" (Art. 100, The Revised Penal Code).
Underlying this legal principle is the traditional theory that when a person commits a crime he
offends two entities namely ( 1) the society in which he lives in or the political entity called the
State whose law he had violated; and (2) the individual member of that society whose person,
right, honor, chastity or property was actually or directly injured or damaged by the same
punishable act or omission. However, this rather broad and general provision is among the most
complex and controversial topics in criminal procedure. It can be misleading in its implications
especially where the same act or omission may be treated as a crime in one instance and as a
tort in another or where the law allows a separate civil action to proceed independently of the
course of the criminal prosecution with which it is intimately intertwined. Many legal scholars
treat as a misconception or fallacy the generally accepted notion that, the civil liability actually
arises from the crime when, in the ultimate analysis, it does not. While an act or omission is
felonious because it is punishable by law, it gives rise to civil liability not so much because it is a
crime but because it caused damage to another. Viewing things pragmatically, we can readily
see that what gives rise to the civil liability is really the obligation and the moral duty of everyone
to repair or make whole the damage caused to another by reason of his own act or omission,
done intentionally or negligently, whether or not the same be punishable by law. In other words,
criminal liability will give rise to civil liability only if the same felonious act or omission results in
damage or injury to another and is the direct and proximate cause thereof. Damage or injury to
another is evidently the foundation of the civil action. Such is not the case in criminal actions
for, to be criminally liable, it is enough that the act or omission complained of is punishable,
regardless of whether or not it also causes material damage to another. (See Sangco, Philippine
Law on Torts and Damages, 1978, Revised Edition, pp. 246-247).
Article 20 of the New Civil Code provides:
Every person who, contrary to law, wilfully or negligently causes damage to another, shall
indemnify the latter for the same.
Regardless, therefore, of whether or not a special law so provides, indemnification of the
offended party may be had on account of the damage, loss or injury directly suffered as a
consequence of the wrongful act of another. The indemnity which a person is sentenced to pay
forms an integral part of the penalty imposed by law for the commission of a crime (Quemel v.
Court of Appeals, 22 SCRA 44, citing Bagtas v. Director of Prisons, 84 Phil. 692). Every crime gives
rise to a penal or criminal action for the punishment of the guilty party, and also to civil action
for the restitution of the thing, repair of the damage, and indemnification for the losses. (United
States v. Bernardo, 19 Phil. 265).

Indeed one cannot disregard the private party in the case at bar who suffered the offenses
committed against her. Not only the State but the petitioner too is entitled to relief as a member
of the public which the law seeks to protect. She was assured that the checks were good when
she parted with money, property or services. She suffered with the State when the checks
bounced.

In Lozano v. Hon. Martinez (G.R. No. 63419, December 18, 1986) and the cases consolidated
therewith, we held that "The effects of a worthless check transcend the private interests of the
parties directly involved in the transaction and touch the interests of the community at large."
Yet, we too recognized the wrong done to the private party defrauded when we stated therein
that "The mischief it creates is not only a wrong to the payee or the holder, but also an injury to
the public."

Civil liability to the offended private party cannot thus be denied, The payee of the check is
entitled to receive the payment of money for which the worthless check was issued. Having
been caused the damage, she is entitled to recompense.

Surely, it could not have been the intendment of the framers of Batas Pambansa Big. 22 to leave
the offended private party defrauded and empty- handed by excluding the civil liability of the
offender, giving her only the remedy, which in many cases results in a Pyrrhic victory, of having
to file a separate civil suit. To do so, may leave the offended party unable to recover even the
face value of the check due her, thereby unjustly enriching the errant drawer at the expense of
the payee. The protection which the law seeks to provide would, therefore, be brought to
naught.

The petitioner's intervention in the prosecution of Criminal Cases 40909 to 40913 is justified
not only for the protection of her interests but also in the interest of the speedy and inexpensive
administration of justice mandated by the Constitution (Section 16, Article III, Bill of Rights,
Constitution of 1987). A separate civil action for the purpose would only prove to be costly,
burdensome, and time-consuming for both parties and further delay the final disposition of the
case. This multiplicity of suits must be avoided. Where petitioner's rights may be fulIy
adjudicated in the proceedings before the trial court, resort t o a separate action to recover civil
liability is clearly unwarranted.

WHEREFORE the petition is hereby GRANTED. The respondent court is ordered to permit the
intervention of a private prosecutor in behalf of petitioner Charmina B. Banal, in the prosecution
of the civil aspect of Criminasl Cases Nos. 40909 to 40913. The temporary restraining order
issued by this court a quo for further proceedings. This decision is immediately executory.

SO ORDERED.
G.R. No. 82146 January 22, 1990
EULOGIO OCCENA, petitioner,
vs.
HON. PEDRO M. ICAMINA, Presiding Judge, Branch X of the Regional Trial Court Sixth Judicial
Region, San Jose, Antique; THE PEOPLE OF THE PHILIPPINES, represented by the Honorable
Provincial Fiscal of Antique; and CRISTINA VEGAFRIA, respondents.
Comelec Legal Assistance Office for petitioner.
Comelec Legal Assistance Officer for private respondent.
FERNAN, C.J.:
On May 31, 1979, herein petitioner Eulogio Occena instituted before the Second Municipal
Circuit Trial Court of Sibalom, San Remigio — Belison, Province of Antique, Criminal Case No.
1717, a criminal complaint for Grave Oral Defamation against herein private respondent Cristina
Vegafria for allegedly openly, publicly and maliciously uttering the following insulting words and
statements: "Gago ikaw nga Barangay Captain, montisco, traidor, malugus, Hudas," which,
freely translated, mean: "You are a foolish Barangay Captain, ignoramus, traitor, tyrant, Judas"
and other words and statements of similar import which caused great and irreparable damage
and injury to his person and honor.
Private respondent as accused therein entered a plea of not guilty. Trial thereafter ensued, at
which petitioner, without reserving his right to file a separate civil action for damages actively
intervened thru a private prosecutor.
After trial, private respondent was convicted of the offense of Slight Oral Defamation and was
sentenced to pay a fine of Fifty Pesos (P50.00) with subsidiary imprisonment in case of
insolvency and to pay the costs. No damages were awarded to petitioner in view of the trial
court's opinion that "the facts and circumstances of the case as adduced by the evidence do not
warrant the awarding of moral damages." 1
Disagreeing, petitioner sought relief from the Regional Trial Court, which in a decision dated
March 16, 1987 disposed of petitioner's appeal as follows:
IN VIEW OF ALL THE FOREGOING, the civil aspect of the lower court's decision of April 20, 1981
subject of this appeal, for lack of merit, is hereby DENIED.
After the decision shall have become final, remand the records of this case to the court of origin,
Second Municipal Circuit Trial Court of Sibalom, San Remigio-Belison, Antique, for the execution
of its decision on the criminal aspect.
SO ORDERED. 2
Petitioner is now before us by way of a petition for review on certiorari seeking to annul the RTC
decision for being contrary to Article 100 of the Revised Penal Code providing that every person
criminally liable for a felony is also civilly liable, and Article 2219 of the New Civil Code providing
that moral damages may be recovered in libel, slander or any other form of defamation. He
submits that public respondent RTC erred in relying on the cases of Roa vs. de la Cruz, 107 Phil.
10 and Tan vs. Standard Vacuum Oil Co., et al., 91 Phil. 672 cited therein. He differentiates said
cases from the case at bar by saying that in the case of Roa, the decision of the trial court had
become final before Maria C. Roa instituted a civil action for damages; whereas in the instant
case, the decision of the trial court has not yet become final by reason of the timely appeal
interposed by him and no civil action for damages has been instituted by petitioner against
private respondent for the same cause. Tan, on the other hand, contemplates of two actions,
one criminal and one civil, and the prosecution of the criminal case had resulted in the acquittal
of the accused, which is not the situation here where the civil aspect was impliedly instituted
with the criminal action in accordance with Section 1, Rule 111, of the Rules of Court.
Private respondent for her part argues that the decision of the trial court carries with it the final
adjudication of her civil liability. Since petitioner chose to actively intervene in the criminal
action without reserving his right to file a separate civil action for damages, he assumed the risk
that in the event he failed to recover damages he cannot appeal from the decision of the lower
court.
We find merit in the petition.
The issues confronting us in the instant petition is whether or not the decision of the Second
Municipal Trial Court of Sibalom, San-Remigio-Belison, Province of Antique constitutes the final
adjudication on the merits of private respondent's civil liability; and whether or not petitioner
is entitled to an award of damages arising from the remarks uttered by private respondent and
found by the trial court to be defamatory.
The decision of the Municipal Circuit Trial Court as affirmed by the Regional Trial Court in
Criminal Case No. 1709 cannot be considered as a final adjudication on the civil liability of
private respondent simply because said decision has not yet become final due to the timely
appeal filed by petitioner with respect to the civil liability of the accused in said case. It was only
the unappealed criminal aspect of the case which has become final.
In the case of People vs. Coloma, 105 Phil. 1287, we categorically stated that from a judgment
convicting the accused, two (2) appeals may, accordingly, be taken. The accused may seek a
review of said judgment, as regards both civil and criminal actions; while the complainant may
appeal with respect only to the civil action, either because the lower court has refused to award
damages or because the award made is unsatisfactory to him. The right of either to appeal or
not to appeal in the event of conviction of the accused is not dependent upon the other. Thus,
private respondent's theory that in actively intervening in the criminal action, petitioner waived
his right to appeal from the decision that may be rendered therein, is incorrect and inaccurate.
Petitioner may, as he did, appeal from the decision on the civil aspect which is deemed instituted
with the criminal action and such appeal, timely taken, prevents the decision on the civil liability
from attaining finality.
We tackle the second issue by determining the basis of civil liability arising from crime. Civil
obligations arising from criminal offenses are governed by Article 100 of the Revised Penal Code
which provides that "(E)very person criminally liable for a felony is also civilly liable," in relation
to Article 2177 of the Civil Code on quasi-delict, the provisions for independent civil actions in
the Chapter on Human Relations and the provisions regulating damages, also found in the Civil
Code.
Underlying the legal principle that a person who is criminally liable is also civilly liable is the view
that from the standpoint of its effects, a crime has dual character: (1) as an offense against the
state because of the disturbance of the social order; and (2) as an offense against the private
person injured by the crime unless it involves the crime of treason, rebellion, espionage,
contempt and others wherein no civil liability arises on the part of the offender either because
there are no damages to be compensated or there is no private person injured by the crime. 3
From the evidence presented, we rule that for the injury to his feelings and reputation, being a
barangay captain, petitioner is entitled to moral damages in the sum of P5,000.00 and a further
sum of P5,000.00 as exemplary damages.
WHEREFORE, the petition is hereby GRANTED. The decision of the Regional Trial Court is hereby
MODIFIED and private respondent is ordered to pay petitioner the amount of P5,000.00 as
moral damages and another P5,000.00 as exemplary damages. Costs against private
respondent.
SO ORDERED.

In the ultimate analysis, what gives rise to the civil liability is really the obligation of everyone to
repair or to make whole the damage caused to another by reason of his act or omission, whether
done intentional or negligently and whether or not punishable by law. 4

In the case at bar, private respondent was found guilty of slight oral defamation and sentenced
to a fine of P50.00 with subsidiary imprisonment in case of insolvency, but no civil liability arising
from the felonious act of the accused was adjudged. This is erroneous. As a general rule, a
person who is found to be criminally liable offends two (2) entities: the state or society in which
he lives and the individual member of the society or private person who was injured or damaged
by the punishable act or omission. The offense of which private respondent was found guilty is
not one of those felonies where no civil liability results because either there is no offended party
or no damage was caused to a private person. There is here an offended party, whose main
contention precisely is that he suffered damages in view of the defamatory words and
statements uttered by private respondent, in the amount of Ten Thousand Pesos (P10,000.00)
as moral damages and the further sum of Ten Thousand Pesos (P10,000) as exemplary damages.

Article 2219, par. (7) of the Civil Code allows the recovery of moral damages in case of libel,
slander or any other form of defamation This provision of law establishes the right of an
offended party in a case for oral defamation to recover from the guilty party damages for injury
to his feelings and reputation. The offended party is likewise allowed to recover punitive or
exemplary damages.

It must be remembered that every defamatory imputation is presumed to be malicious, even if

it be true, if no good intention and justifiable motive for making it is shown. And malice may be
inferred from the style and tone of publication 5 subject to certain exceptions which are not
present in the case at bar.

Calling petitioner who was a barangay captain an ignoramus, traitor, tyrant and Judas is clearly
an imputation of defects in petitioner's character sufficient to cause him embarrassment and
social humiliation. Petitioner testified to the feelings of shame and anguish he suffered as a
result of the incident complained of. 6 It is patently error for the trial court to overlook this vital
piece of evidence and to conclude that the "facts and circumstances of the case as adduced by
the evidence do not warrant the awarding of moral damages." Having misapprehended the
facts, the trial court's findings with respect thereto is not conclusive upon us.
G.R. No. 169467 February 25, 2010
ALFREDO P. PACIS and CLEOPATRA D. PACIS, Petitioners,
vs.
JEROME JOVANNE MORALES, Respondent.
DECISION
CARPIO, J.:
The Case
This petition for review1 assails the 11 May 2005 Decision2 and the 19 August 2005 Resolution
of the Court of Appeals in CA-G.R. CV No. 60669.
The Facts
On 17 January 1995, petitioners Alfredo P. Pacis and Cleopatra D. Pacis (petitioners) filed with
the trial court a civil case for damages against respondent Jerome Jovanne Morales
(respondent). Petitioners are the parents of Alfred Dennis Pacis, Jr. (Alfred), a 17-year old
student who died in a shooting incident inside the Top Gun Firearms and Ammunitions Store
(gun store) in Baguio City. Respondent is the owner of the gun store.
The facts as found by the trial court are as follows:
On January 19, 1991, Alfred Dennis Pacis, then 17 years old and a first year student at the Baguio
Colleges Foundation taking up BS Computer Science, died due to a gunshot wound in the head
which he sustained while he was at the Top Gun Firearm[s] and Ammunition[s] Store located at
Upper Mabini Street, Baguio City. The gun store was owned and operated by defendant Jerome
Jovanne Morales.
With Alfred Pacis at the time of the shooting were Aristedes Matibag and Jason Herbolario. They
were sales agents of the defendant, and at that particular time, the caretakers of the gun store.
The bullet which killed Alfred Dennis Pacis was fired from a gun brought in by a customer of the
gun store for repair.
The gun, an AMT Automag II Cal. 22 Rimfire Magnum with Serial No. SN-H34194 (Exhibit "Q"),
was left by defendant Morales in a drawer of a table located inside the gun store.
Defendant Morales was in Manila at the time. His employee Armando Jarnague, who was the
regular caretaker of the gun store was also not around. He left earlier and requested sales
agents Matibag and Herbolario to look after the gun store while he and defendant Morales were
away. Jarnague entrusted to Matibag and Herbolario a bunch of keys used in the gun store
which included the key to the drawer where the fatal gun was kept.
It appears that Matibag and Herbolario later brought out the gun from the drawer and placed
it on top of the table. Attracted by the sight of the gun, the young Alfred Dennis Pacis got hold
of the same. Matibag asked Alfred Dennis Pacis to return the gun. The latter followed and
handed the gun to Matibag. It went off, the bullet hitting the young Alfred in the head.
A criminal case for homicide was filed against Matibag before branch VII of this Court. Matibag,
however, was acquitted of the charge against him because of the exempting circumstance of
"accident" under Art. 12, par. 4 of the Revised Penal Code.
By agreement of the parties, the evidence adduced in the criminal case for homicide against
Matibag was reproduced and adopted by them as part of their evidence in the instant case.3
On 8 April 1998, the trial court rendered its decision in favor of petitioners. The dispositive
portion of the decision reads:
WHEREFORE, premises considered, judgment is hereby rendered in favor of the plaintiffs
[Spouses Alfredo P. Pacis and Cleopatra D. Pacis] and against the defendant [Jerome Jovanne
Morales] ordering the defendant to pay plaintiffs —
(1) ₱30,000.00 as indemnity for the death of Alfred Pacis;
(2) ₱29,437.65 as actual damages for the hospitalization and burial expenses incurred by the
plaintiffs;
(3) ₱100,000.00 as compensatory damages;
(4) ₱100,000.00 as moral damages;
(5) ₱50,000.00 as attorney’s fees.
SO ORDERED.4
Respondent appealed to the Court of Appeals. In its Decision5 dated 11 May 2005, the Court of
Appeals reversed the trial court’s Decision and absolved respondent from civil liability under
Article 2180 of the Civil Code.6
Petitioners filed a motion for reconsideration, which the Court of Appeals denied in its
Resolution dated 19 August 2005.
Hence, this petition.
The Trial Court’s Ruling
The trial court held respondent civilly liable for the death of Alfred under Article 2180 in relation
to Article 2176 of the Civil Code.7 The trial court held that the accidental shooting of Alfred
which caused his death was partly due to the negligence of respondent’s employee Aristedes
Matibag (Matibag). Matibag and Jason Herbolario (Herbolario) were employees of respondent
even if they were only paid on a commission basis. Under the Civil Code, respondent is liable for
the damages caused by Matibag on the occasion of the performance of his duties, unless
respondent proved that he observed the diligence of a good father of a family to prevent the
damage. The trial court held that respondent failed to observe the required diligence when he
left the key to the drawer containing the loaded defective gun without instructing his employees
to be careful in handling the loaded gun.
The Court of Appeals’ Ruling
The Court of Appeals held that respondent cannot be held civilly liable since there was no
employer-employee relationship between respondent and Matibag. The Court of Appeals found
that Matibag was not under the control of respondent with respect to the means and methods
in the performance of his work. There can be no employer-employee relationship where the
element of control is absent. Thus, Article 2180 of the Civil Code does not apply in this case and
respondent cannot be held liable.
Furthermore, the Court of Appeals ruled that even if respondent is considered an employer of
Matibag, still respondent cannot be held liable since no negligence can be attributed to him. As
explained by the Court of Appeals:
Granting arguendo that an employer-employee relationship existed between Aristedes Matibag
and the defendant-appellant, we find that no negligence can be attributed to him.
Negligence is best exemplified in the case of Picart vs. Smith (37 Phil. 809). The test of negligence
is this:
"x x x. Could a prudent man, in the position of the person to whom negligence is attributed,
foresee harm to the person injured as a reasonable consequence of the course about to be
pursued? If so, the law imposes a duty on the actor to refrain from that course or take
precaution against its mischievous results, and the failure to do so constitutes negligence. x x
x."
Defendant-appellant maintains that he is not guilty of negligence and lack of due care as he did
not fail to observe the diligence of a good father of a family. He submits that he kept the firearm
in one of his table drawers, which he locked and such is already an indication that he took the
necessary diligence and care that the said gun would not be accessible to anyone. He puts [sic]
that his store is engaged in selling firearms and ammunitions. Such items which are per se
dangerous are kept in a place which is properly secured in order that the persons coming into
the gun store would not be able to take hold of it unless it is done intentionally, such as when a
customer is interested to purchase any of the firearms, ammunitions and other related items,
in which case, he may be allowed to handle the same.
We agree. Much as We sympathize with the family of the deceased, defendant-appellant is not
to be blamed. He exercised due diligence in keeping his loaded gun while he was on a business
trip in Manila. He placed it inside the drawer and locked it. It was taken away without his
knowledge and authority. Whatever happened to the deceased was purely accidental.8
The Issues
Petitioners raise the following issues:
I. THE APPELLATE COURT COMMITTED SERIOUS ERROR IN RENDERING THE DECISION AND
RESOLUTION IN QUESTION IN DISREGARD OF LAW AND JURISPRUDENCE BY REVERSING THE
ORDER OF THE REGIONAL TRIAL COURT (BRANCH 59) OF BAGUIO CITY NOTWITHSTANDING
CLEAR, AUTHENTIC RECORDS AND TESTIMONIES PRESENTED DURING THE TRIAL WHICH
NEGATE AND CONTRADICT ITS FINDINGS.
II. THE APPELLATE COURT COMMITTED GRAVE, REVERSIBLE ERROR IN RENDERING THE
DECISION AND RESOLUTION IN QUESTION BY DEPARTING FROM THE ACCEPTED AND USUAL
COURSE OF JUDICIAL PROCEEDINGS THEREBY IGNORING THE FACTUAL FINDINGS OF THE
REGIONAL TRIAL COURT (BRANCH 59) OF BAGUIO CITY SHOWING PETITIONER’S CLEAR RIGHTS
TO THE AWARD OF DAMAGES.9
The Ruling of the Court
We find the petition meritorious.
This case for damages arose out of the accidental shooting of petitioners’ son. Under Article
116110 of the Civil Code, petitioners may enforce their claim for damages based on the civil
liability arising from the crime under Article 10011 of the Revised Penal Code or they may opt to
file an independent civil action for damages under the Civil Code. In this case, instead of
enforcing their claim for damages in the homicide case filed against Matibag, petitioners opted
to file an independent civil action for damages against respondent whom they alleged was
Matibag’s employer. Petitioners based their claim for damages under Articles 2176 and 2180 of
the Civil Code.
Unlike the subsidiary liability of the employer under Article 10312 of the Revised Penal
Code,13 the liability of the employer, or any person for that matter, under Article 2176 of the
Civil Code is primary and direct, based on a person’s own negligence. Article 2176 states:
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 quasi-delict and is governed by the
provisions of this Chapter.
This case involves the accidental discharge of a firearm inside a gun store.1avvphi1 Under PNP
Circular No. 9, entitled the "Policy on Firearms and Ammunition Dealership/Repair," a person
who is in the business of purchasing and selling of firearms and ammunition must maintain basic
security and safety requirements of a gun dealer, otherwise his License to Operate Dealership
will be suspended or canceled.14
Indeed, a higher degree of care is required of someone who has in his possession or under his
control an instrumentality extremely dangerous in character, such as dangerous weapons or
substances. Such person in possession or control of dangerous instrumentalities has the duty to
take exceptional precautions to prevent any injury being done thereby.15 Unlike the ordinary
affairs of life or business which involve little or no risk, a business dealing with dangerous
weapons requires the exercise of a higher degree of care.
As a gun store owner, respondent is presumed to be knowledgeable about firearms safety and
should have known never to keep a loaded weapon in his store to avoid unreasonable risk of
harm or injury to others. Respondent has the duty to ensure that all the guns in his store are
not loaded. Firearms should be stored unloaded and separate from ammunition when the
firearms are not needed for ready-access defensive use.16 With more reason, guns accepted by
the store for repair should not be loaded precisely because they are defective and may cause
an accidental discharge such as what happened in this case. Respondent was clearly negligent
when he accepted the gun for repair and placed it inside the drawer without ensuring first that
it was not loaded. In the first place, the defective gun should have been stored in a vault. Before
accepting the defective gun for repair, respondent should have made sure that it was not loaded
to prevent any untoward accident. Indeed, respondent should never accept a firearm from
another person, until the cylinder or action is open and he has personally checked that the
weapon is completely unloaded.17 For failing to insure that the gun was not loaded, respondent
himself was negligent. Furthermore, it was not shown in this case whether respondent had a
License to Repair which authorizes him to repair defective firearms to restore its original
composition or enhance or upgrade firearms.18

Clearly, respondent did not exercise the degree of care and diligence required of a good father
of a family, much less the degree of care required of someone dealing with dangerous weapons,
as would exempt him from liability in this case.

WHEREFORE, we GRANT the petition. We SET ASIDE the 11 May 2005 Decision and the 19
August 2005 Resolution of the Court of Appeals in CA-G.R. CV No. 60669. We REINSTATE the
trial court’s Decision dated 8 April 1998.

SO ORDERED.
G.R. No. 145391. August 26, 2002
AVELINO CASUPANAN and ROBERTO CAPITULO, petitioners, vs. MARIO LLAVORE
LAROYA, Respondent.
DECISION
CARPIO, J.:
The Case
This is a petition for review on certiorari to set aside the Resolution1 dated December 28, 1999
dismissing the petition for certiorari and the Resolution2 dated August 24, 2000 denying the
motion for reconsideration, both issued by the Regional Trial Court of Capas, Tarlac, Branch 66,
in Special Civil Action No. 17-C (99).
The Facts
Two vehicles, one driven by respondent Mario Llavore Laroya (Laroya for brevity) and the other
owned by petitioner Roberto Capitulo (Capitulo for brevity) and driven by petitioner Avelino
Casupanan (Casupanan for brevity), figured in an accident. As a result, two cases were filed with
the Municipal Circuit Trial Court (MCTC for brevity) of Capas, Tarlac. Laroya filed a criminal case
against Casupanan for reckless imprudence resulting in damage to property, docketed as
Criminal Case No. 002-99. On the other hand, Casupanan and Capitulo filed a civil case against
Laroya for quasi-delict, docketed as Civil Case No. 2089.
When the civil case was filed, the criminal case was then at its preliminary investigation stage.
Laroya, defendant in the civil case, filed a motion to dismiss the civil case on the ground of
forum-shopping considering the pendency of the criminal case. The MCTC granted the motion
in the Order of March 26, 1999 and dismissed the civil case.
On Motion for Reconsideration, Casupanan and Capitulo insisted that the civil case is a separate
civil action which can proceed independently of the criminal case. The MCTC denied the motion
for reconsideration in the Order of May 7, 1999. Casupanan and Capitulo filed a petition for
certiorari under Rule 65 before the Regional Trial Court (Capas RTC for brevity) of Capas, Tarlac,
Branch 66,3 assailing the MCTCs Order of dismissal.
The Trial Courts Ruling
The Capas RTC rendered judgment on December 28, 1999 dismissing the petition for certiorari
for lack of merit. The Capas RTC ruled that the order of dismissal issued by the MCTC is a final
order which disposes of the case and therefore the proper remedy should have been an appeal.
The Capas RTC further held that a special civil action for certiorari is not a substitute for a lost
appeal. Finally, the Capas RTC declared that even on the premise that the MCTC erred in
dismissing the civil case, such error is a pure error of judgment and not an abuse of discretion.
Casupanan and Capitulo filed a Motion for Reconsideration but the Capas RTC denied the same
in the Resolution of August 24, 2000.
Hence, this petition.
The Issue
The petition premises the legal issue in this wise:
In a certain vehicular accident involving two parties, each one of them may think and believe
that the accident was caused by the fault of the other. x x x [T]he first party, believing himself
to be the aggrieved party, opted to file a criminal case for reckless imprudence against the
second party. On the other hand, the second party, together with his operator, believing
themselves to be the real aggrieved parties, opted in turn to file a civil case for quasi-delict
against the first party who is the very private complainant in the criminal
case.4cräläwvirtualibräry
Thus, the issue raised is whether an accused in a pending criminal case for reckless imprudence
can validly file, simultaneously and independently, a separate civil action for quasi-delict against
the private complainant in the criminal case.
The Courts Ruling
Casupanan and Capitulo assert that Civil Case No. 2089, which the MCTC dismissed on the
ground of forum-shopping, constitutes a counterclaim in the criminal case. Casupanan and
Capitulo argue that if the accused in a criminal case has a counterclaim against the private
complainant, he may file the counterclaim in a separate civil action at the proper time. They
contend that an action on quasi-delict is different from an action resulting from the crime of
reckless imprudence, and an accused in a criminal case can be an aggrieved party in a civil case
arising from the same incident. They maintain that under Articles 31 and 2176 of the Civil Code,
the civil case can proceed independently of the criminal action. Finally, they point out that
Casupanan was not the only one who filed the independent civil action based on quasi-delict
but also Capitulo, the owner-operator of the vehicle, who was not a party in the criminal case.
In his Comment, Laroya claims that the petition is fatally defective as it does not state the real
antecedents. Laroya further alleges that Casupanan and Capitulo forfeited their right to
question the order of dismissal when they failed to avail of the proper remedy of appeal. Laroya
argues that there is no question of law to be resolved as the order of dismissal is already final
and a petition for certiorari is not a substitute for a lapsed appeal.
In their Reply, Casupanan and Capitulo contend that the petition raises the legal question of
whether there is forum-shopping since they filed only one action - the independent civil action
for quasi-delict against Laroya.
Nature of the Order of Dismissal
The MCTC dismissed the civil action for quasi-delict on the ground of forum-shopping under
Supreme Court Administrative Circular No. 04-94. The MCTC did not state in its order of
dismissal5 that the dismissal was with prejudice. Under the Administrative Circular, the order of
dismissal is without prejudice to refiling the complaint, unless the order of dismissal expressly
states it is with prejudice.6 Absent a declaration that the dismissal is with prejudice, the same is
deemed without prejudice. Thus, the MCTCs dismissal, being silent on the matter, is a
dismissal without prejudice.
Section 1 of Rule 417 provides that an order dismissing an action without prejudice is not
appealable. The remedy of the aggrieved party is to file a special civil action under Rule 65.
Section 1 of Rule 41 expressly states that where the judgment or final order is not appealable,
the aggrieved party may file an appropriate special civil action under Rule 65. Clearly, the Capas
RTCs order dismissing the petition for certiorari, on the ground that the proper remedy is an
ordinary appeal, is erroneous.
Forum-Shopping
The essence of forum-shopping is the filing of multiple suits involving the same parties for the
same cause of action, either simultaneously or successively, to secure a favorable
judgment.8Forum-shopping is present when in the two or more cases pending, there is identity
of parties, rights of action and reliefs sought.9 However, there is no forum-shopping in the
instant case because the law and the rules expressly allow the filing of a separate civil action
which can proceed independently of the criminal action.
Laroya filed the criminal case for reckless imprudence resulting in damage to property based on
the Revised Penal Code while Casupanan and Capitulo filed the civil action for damages based
on Article 2176 of the Civil Code. Although these two actions arose from the same act or
omission, they have different causes of action. The criminal case is based on culpa criminal
punishable under the Revised Penal Code while the civil case is based on culpa aquiliana
actionable under Articles 2176 and 2177 of the Civil Code. These articles on culpa aquiliana read:
Art. 2176. Whoever by act or omission causes damage to another, there being fault or
negligence, is obliged to pay for the damage done. Such fault or negligence, if there is no pre-
existing contractual relation between the parties, is called a quasi-delict and is governed by the
provisions of this Chapter.
Art. 2177. Responsibility for fault or negligence under the preceding article is entirely separate
and distinct from the civil liability arising from negligence under the Penal Code. But the plaintiff
cannot recover damages twice for the same act or omission of the defendant.
Any aggrieved person can invoke these articles provided he proves, by preponderance of
evidence, that he has suffered damage because of the fault or negligence of another. Either the
private complainant or the accused can file a separate civil action under these articles. There is
nothing in the law or rules that state only the private complainant in a criminal case may invoke
these articles.
Moreover, paragraph 6, Section 1, Rule 111 of the 2000 Rules on Criminal Procedure (2000
Rules for brevity) expressly requires the accused to litigate his counterclaim in a separate civil
action, to wit:
SECTION 1. Institution of criminal and civil actions. (a) x x x.
No counterclaim, cross-claim or third-party complaint may be filed by the accused in the
criminal case, but any cause of action which could have been the subject thereof may be
litigated in a separate civil action. (Emphasis supplied)
Since the present Rules require the accused in a criminal action to file his counterclaim in a
separate civil action, there can be no forum-shopping if the accused files such separate civil
action.
Filing of a separate civil action
Section 1, Rule 111 of the 1985 Rules on Criminal Procedure (1985 Rules for brevity), as
amended in 1988, allowed the filing of a separate civil action independently of the criminal
action provided the offended party reserved the right to file such civil action. Unless the
offended party reserved the civil action before the presentation of the evidence for the
prosecution, all civil actions arising from the same act or omission were deemed impliedly
instituted in the criminal case. These civil actions referred to the recovery of civil liability ex-
delicto, the recovery of damages for quasi-delict, and the recovery of damages for violation of
Articles 32, 33 and 34 of the Civil Code on Human Relations.
Thus, to file a separate and independent civil action for quasi-delict under the 1985 Rules, the
offended party had to reserve in the criminal action the right to bring such action. Otherwise,
such civil action was deemed impliedly instituted in the criminal action. Section 1, Rule 111 of
the 1985 Rules provided as follows:
Section 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 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.
A waiver of any of the civil actions extinguishes the others. The institution of, or the reservation
of the right to file, any of said civil actions separately waives the others.
The reservation of the right to institute the separate civil actions shall be made before the
prosecution starts to present its evidence and under circumstances affording the offended party
a reasonable opportunity to make such reservation.
In no case may the offended party recover damages twice for the same act or omission of the
accused.
x x x. (Emphasis supplied)
Section 1, Rule 111 of the 1985 Rules was amended on December 1, 2000 and now provides as
follows:
SECTION 1. Institution of criminal and civil actions. (a) When a criminal action is instituted, the
civil action for the recovery of civil liability arising from the offense charged shall be deemed
instituted with the criminal action unless the offended party waives the civil action, reserves the
right to institute it separately or institutes the civil action prior to the criminal action.
The reservation of the right to institute separately the civil action shall be made before the
prosecution starts presenting its evidence and under circumstances affording the offended
party a reasonable opportunity to make such reservation.
xxx
(b) x x x
Where the civil action has been filed separately and trial thereof has not yet commenced, it may
be consolidated with the criminal action upon application with the court trying the latter case.
If the application is granted, the trial of both actions shall proceed in accordance with section 2
of this rule governing consolidation of the civil and criminal actions. (Emphasis supplied)
Under Section 1 of the present Rule 111, what is deemed instituted with the criminal action is
only the action to recover civil liability arising from the crime or ex-delicto. All the other civil
actions under Articles 32, 33, 34 and 2176 of the Civil Code are no longer deemed instituted,
and may be filed separately and prosecuted independently even without any reservation in the
criminal action. The failure to make a reservation in the criminal action is not a waiver of the
right to file a separate and independent civil action based on these articles of the Civil Code. The
prescriptive period on the civil actions based on these articles of the Civil Code continues to run
even with the filing of the criminal action. Verily, the civil actions based on these articles of the
Civil Code are separate, distinct and independent of the civil action deemed instituted in the
criminal action.10cräläwvirtualibräry
Under the present Rule 111, the offended party is still given the option to file a separate civil
action to recover civil liability ex-delicto by reserving such right in the criminal action before the
prosecution presents its evidence. Also, the offended party is deemed to make such reservation
if he files a separate civil action before filing the criminal action. If the civil action to recover civil
liability ex-delicto is filed separately but its trial has not yet commenced, the civil action may be
consolidated with the criminal action. The consolidation under this Rule does not apply to
separate civil actions arising from the same act or omission filed under Articles 32, 33, 34 and
2176 of the Civil Code.11cräläwvirtualibräry
Suspension of the Separate Civil Action
Under Section 2, Rule 111 of the amended 1985 Rules, a separate civil action, if reserved in the
criminal action, could not be filed until after final judgment was rendered in the criminal action.
If the separate civil action was filed before the commencement of the criminal action, the civil
action, if still pending, was suspended upon the filing of the criminal action until final judgment
was rendered in the criminal action. This rule applied only to the separate civil action filed to
recover liability ex-delicto. The rule did not apply to independent civil actions based on Articles
32, 33, 34 and 2176 of the Civil Code, which could proceed independently regardless of the filing
of the criminal action.
The amended provision of Section 2, Rule 111 of the 2000 Rules continues this procedure, to
wit:
SEC. 2. When separate civil action is suspended. After the criminal action has been commenced,
the separate civil action arising therefrom cannot be instituted until final judgment has been
entered in the criminal action.
If the criminal action is filed after the said civil action has already been instituted, the latter shall
be suspended in whatever stage it may be found before judgment on the merits. The suspension
shall last until final judgment is rendered in the criminal action. Nevertheless, before judgment
on the merits is rendered in the civil action, the same may, upon motion of the offended party,
be consolidated with the criminal action in the court trying the criminal action. In case of
consolidation, the evidence already adduced in the civil action shall be deemed automatically
reproduced in the criminal action without prejudice to the right of the prosecution to cross-
examine the witnesses presented by the offended party in the criminal case and of the parties
to present additional evidence. The consolidated criminal and civil actions shall be tried and
decided jointly.
During the pendency of the criminal action, the running of the period of prescription of the civil
action which cannot be instituted separately or whose proceeding has been suspended shall be
tolled.
x x x. (Emphasis supplied)
Thus, Section 2, Rule 111 of the present Rules did not change the rule that the separate civil
action, filed to recover damages ex-delicto, is suspended upon the filing of the criminal action.
Section 2 of the present Rule 111 also prohibits the filing, after commencement of the criminal
action, of a separate civil action to recover damages ex-delicto.
When civil action may proceed independently
The crucial question now is whether Casupanan and Capitulo, who are not the offended parties
in the criminal case, can file a separate civil action against the offended party in the criminal
case. Section 3, Rule 111 of the 2000 Rules provides as follows:
SEC 3. When civil action may proceed independently. - In the cases provided in Articles 32, 33,
34 and 2176 of the Civil Code of the Philippines, the independent civil action may be brought by
the offended party. It shall proceed independently of the criminal action and shall require only
a preponderance of evidence. In no case, however, may the offended party recover damages
twice for the same act or omission charged in the criminal action. (Emphasis supplied)
Section 3 of the present Rule 111, like its counterpart in the amended 1985 Rules, expressly
allows the offended party to bring an independent civil action under Articles 32, 33, 34 and 2176
of the Civil Code. As stated in Section 3 of the present Rule 111, this civil action shall proceed
independently of the criminal action and shall require only a preponderance of evidence. In no
case, however, may the offended party recover damages twice for the same act or omission
charged in the criminal action.
There is no question that the offended party in the criminal action can file an independent civil
action for quasi-delict against the accused. Section 3 of the present Rule 111 expressly states
that the offended party may bring such an action but the offended party may not recover
damages twice for the same act or omission charged in the criminal action. Clearly, Section 3 of
Rule 111 refers to the offended party in the criminal action, not to the accused.
Casupanan and Capitulo, however, invoke the ruling in Cabaero vs. Cantos12 where the Court
held that the accused therein could validly institute a separate civil action for quasi-
delict against the private complainant in the criminal case. In Cabaero, the accused in the
criminal case filed his Answer with Counterclaim for malicious prosecution. At that time the
Court noted the absence of clear-cut rules governing the prosecution on impliedly instituted
civil actions and the necessary consequences and implications thereof. Thus, the Court ruled that
the trial court should confine itself to the criminal aspect of the case and disregard any
counterclaim for civil liability. The Court further ruled that the accused may file a separate civil
case against the offended party after the criminal case is terminated and/or in accordance with
the new Rules which may be promulgated. The Court explained that a cross-claim, counterclaim
or third-party complaint on the civil aspect will only unnecessarily complicate the proceedings
and delay the resolution of the criminal case.
Paragraph 6, Section 1 of the present Rule 111 was incorporated in the 2000 Rules precisely to
address the lacuna mentioned in Cabaero. Under this provision, the accused is barred from
filing a counterclaim, cross-claim or third-party complaint in the criminal case. However, the
same provision states that any cause of action which could have been the subject (of the
counterclaim, cross-claim or third-party complaint) may be litigated in a separate civil action.
The present Rule 111 mandates the accused to file his counterclaim in a separate civil action
which shall proceed independently of the criminal action, even as the civil action of the offended
party is litigated in the criminal action.
Conclusion
Under Section 1 of the present Rule 111, the independent civil action in Articles 32, 33, 34 and
2176 of the Civil Code is not deemed instituted with the criminal action but may be filed
separately by the offended party even without reservation. The commencement of the criminal
action does not suspend the prosecution of the independent civil action under these articles of
the Civil Code. The suspension in Section 2 of the present Rule 111 refers only to the civil action
arising from the crime, if such civil action is reserved or filed before the commencement of the
criminal action.
Thus, the offended party can file two separate suits for the same act or omission. The first a
criminal case where the civil action to recover civil liability ex-delicto is deemed instituted, and
the other a civil case for quasi-delict - without violating the rule on non-forum shopping. The
two cases can proceed simultaneously and independently of each other. The commencement
or prosecution of the criminal action will not suspend the civil action for quasi-delict. The only
limitation is that the offended party cannot recover damages twice for the same act or omission
of the defendant. In most cases, the offended party will have no reason to file a second civil
action since he cannot recover damages twice for the same act or omission of the accused. In
some instances, the accused may be insolvent, necessitating the filing of another case against
his employer or guardians.
Similarly, the accused can file a civil action for quasi-delict for the same act or omission he is
accused of in the criminal case. This is expressly allowed in paragraph 6, Section 1 of the present
Rule 111 which states that the counterclaim of the accused may be litigated in a separate civil
action. This is only fair for two reasons. First, the accused is prohibited from setting up any
counterclaim in the civil aspect that is deemed instituted in the criminal case. The accused is
therefore forced to litigate separately his counterclaim against the offended party. If the
accused does not file a separate civil action for quasi-delict, the prescriptive period may set in
since the period continues to run until the civil action for quasi-delict is filed.
Second, the accused, who is presumed innocent, has a right to invoke Article 2177 of the Civil
Code, in the same way that the offended party can avail of this remedy which is independent of
the criminal action. To disallow the accused from filing a separate civil action for quasi-delict,
while refusing to recognize his counterclaim in the criminal case, is to deny him due process of
law, access to the courts, and equal protection of the law.
Thus, the civil action based on quasi-delict filed separately by Casupanan and Capitulo is proper.
The order of dismissal by the MCTC of Civil Case No. 2089 on the ground of forum-shopping is
erroneous.
We make this ruling aware of the possibility that the decision of the trial court in the criminal
case may vary with the decision of the trial court in the independent civil action. This possibility
has always been recognized ever since the Civil Code introduced in 1950 the concept of an
independent civil action under Articles 32, 33, 34 and 2176 of the Code. But the law itself, in
Article 31 of the Code, expressly provides that the independent civil action may proceed
independently of the criminal proceedings and regardless of the result of the latter. In Azucena
vs. Potenciano,13 the Court declared:
x x x. There can indeed be no other logical conclusion than this, for to subordinate the civil action
contemplated in the said articles to the result of the criminal prosecution whether it be
conviction or acquittal would render meaningless the independent character of the civil action
and the clear injunction in Article 31 that this action 'may proceed independently of the criminal
proceedings and regardless of the result of the latter.
More than half a century has passed since the Civil Code introduced the concept of a civil action
separate and independent from the criminal action although arising from the same act or
omission. The Court, however, has yet to encounter a case of conflicting and irreconcilable
decisions of trial courts, one hearing the criminal case and the other the civil action for quasi-
delict. The fear of conflicting and irreconcilable decisions may be more apparent than real. In
any event, there are sufficient remedies under the Rules of Court to deal with such remote
possibilities.
One final point. The Revised Rules on Criminal Procedure took effect on December 1, 2000 while
the MCTC issued the order of dismissal on December 28, 1999 or before the amendment of the
rules. The Revised Rules on Criminal Procedure must be given retroactive effect considering the
well-settled rule that -

x x x statutes regulating the procedure of the court will be construed as applicable to actions
pending and undetermined at the time of their passage. Procedural laws are retroactive in that
sense and to that extent.14cräläwvirtualibräry

WHEREFORE, the petition for review on certiorari is hereby GRANTED. The Resolutions dated
December 28, 1999 and August 24, 2000 in Special Civil Action No. 17-C (99) are ANNULLED and
Civil Case No. 2089 is REINSTATED.

SO ORDERED.
G.R. No. L-34666 October 30, 1981
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, MERCEDES L. JAVELLANA, petitioner,
vs.
ITONG AMISTAD respondent.
DE CASTRO, J.:
The legal question raised in this petition for certiorari is whether from a decision of acquittal,
the complainant in a criminal action for estafa, may appeal with respect to the civil aspect of
the case.
The criminal action in this case was commenced in the Court of First Instance of Baguio and
Benguet, under an information which reads:
INFORMATION
The undersigned Acting 1st Assistant City Fiscal accuses ITONG AMISTAD of the crime of Estafa
penalized under Article 316 Paragraph 2, of the Revised Penal Code, committed as follows:
That on or about January 30, 1965, October 11, 1965, and December 23, 1965, in the City of
Baguio, Philippines, and within the jurisdiction of this Honorable Court, the abovenamed
accused, did then and there, willfully, unlawfully, and feloniously —
(1) (January 30, 1965) sell, convey, transfer and deliver by way of a deed of sale in favor of Ben
Palispis an unsegregated portion of 42,326 square meters of that parcel of land described in
ORIGINAL CERTIFICATE OF TITLE No. 0-105
A parcel of land (Lot 1, plan Psu-203086-Amd., Civil Reservation Case No. 1, L.R.C. Civil
Reservation Record No. 211), situated in the Res. Sec. "J", City of Baguio. Bounded on the NE.,
by property of Honor Kingdoms; on the SW., by Lot 2; on the W and NW., by Public land. ...
containing an area of EIGHTY FOUR THOUSAND SIX HUNDRED AND FIFTY THREE (84,653) Square
meters, more or less, ... in the names of spouses I tong Amistad and Luisa Tengdan.
(2) (October 11, 1965) sell, convey, transfer and deliver by way of a deed of sale in favor of
Teodoro Mat-an the remaining 42,326 square meters of the above-described parcel of land;
and
(3) (December 23, 1965) execute a supplemental deed of sale over the entire area covered by
Original Certificate of Title No. 0-105 in favor of vendees Ben Palispis and Teodoro Mat-an which
effected the issuance of two separate titles in favor of said vendees —
knowing fully well and purposely withholding the information that on or about February 10,
1962, he had previously entered into an agreement with one MERCEDES L. JAVELLANA to
convey to her an area of 10,000 square meters from the above-described parcel of land for the
sum of TEN THOUSAND (P10,000.00) PESOS and had already received from her the sum of FIVE
THOUSAND ( P5,000.00) PESOS, thereby causing damage and prejudice to said Mercedes L.
Javellana in the amount of FIVE THOUSAND (P5,000.00) PESOS, Philippine Currency.
All contrary to law.
After trial, decision was rendered dated February 8, 1971, and promulgated on March 18, 1971
acquitting the accused, respondent herein, the Court holding that "the case of the prosecution
is civil in nature" and that "the guilt of the accused has not been proven beyond reasonable
doubt."
From the judgment of acquittal, the complainant, the petitioner herein, appealed to the Court
of Appeals insofar as the civil liability of the accused is concerned. Without awaiting the
completion of the transcript of the stenographic notes in the case, the Court of Appeals
dismissed the appeal merely on the legal proposition that an appeal by the complainant from a
judgment of acquittal should be disallowed.
The Resolution of the Court of Appeals dated December 1, 1971, is set forth in full as follows:
This refers to an appeal against the judgment of the Court of First Instance of Baguio, in Criminal
Case No. 4205, wherein the accused Itong Amistad who was prosecuted for the crime of estafa
paragraph 2, Article 316 R.P.C.), was acquitted. The decision was promulgated on March 18,
1971 and on that same day, the complainant, through counsel, filed a Notice of Appeal from
said judgment, "insofar as the civil liability of the accused is concerned." Apparently the appeal
was approved by the trial court, the records of the case were elevated to this Court, and this
Court required the completion of the same.
Now, while the right of the offended party to intervene in the criminal action (Section 15, Rule
110, Rules) as well as to appeal from a final judgment or ruling or from an order made after
judgment affecting the substantial rights of the appellant (Section 2, Rule 122, Rules) is
recognized, the offended party however, cannot appeal if the accused is acquitted as matters
are (People vs. Herrera 74 Phil. 21). indeed, the trial court in acquitting the herein defendant
stated:
In the mind of the court, the case of the prosecution is civil in nature. In fact, the supervening
acts of the parties after the execution of Exhibit A until the execution of Exhibit D are clear and
unequivocal which ineluctably lead this court to believe that the guilt of the accused has not
been proven beyond reasonable doubt.
An appeal from the judgment of the Court of First Instance would perforce require a new
determination of defendant's criminal liability. This cannot be done. Besides, the offended party
has the remedy of bringing a civil action independently of the criminal action.
Indeed, this question is not new. It has already been so ruled by the Supreme Court in several
cases (People vs. Flores, G.R. No. L-7523, December 18, 1957, citing People vs. Velez, 77 Phil.
1026; People vs. Benjamin Liggayu et al., No. 8224, October 31, 1955; People vs. Joaquin Lipana
72 Phil. 166; People vs. Florendo, 73 Phil. 679 [decided under the new Rules of Court]; Ricafort
vs. Fernan, 101 Phil. 575, 572).
Considering that the complainant is appealing from a judgment acquitting the accused in a
criminal case, her appeal should be disallowed.
WHEREFORE, the appeal is hereby ordered dismissed. The stenographers who were required to
submit their respective transcripts of stenographic notes in this case are hereby excused
therefrom. (pp. 6-7, Brief for the Respondent, p. 78, Rollo).
A motion for reconsideration of the Resolution of the Court of Appeals was filed but was denied
on January 4, 1972. From both aforesaid Resolutions dismissing the appeal and the order
denying the Motion for Reconsideration, the petitioner came to this Court on a petition for
certiorari with prayer that the Resolution of the Court of Appeals be reversed, and that
judgment be rendered in favor of petitioner and against respondent insofar as the latter's
hability is concerned —
(a) Ordering respondent to pay to petitioner such sum as this Court shall adjudge to rightfully
represent the value of the one hectare portion of the land involved agreed to be conveyed to
petitioner by respondent in accordance with the Agreement to Convey Real Property (Exhibit
"A");
(b) Ordering respondent to pay to petitioner the expenses of litigation actually incurred by the
latter; and
(c) Ordering respondent to pay the costs of suit. (p.28, Brief for the Petitioner, p. 60, Rollo).
The sole legal question for determination as stated at the outset, is whether an appeal by the
complainant for estafa, may be allowed from a decision acquitting the accused of the crime
charged, only insofar as the latter's civil liability is concerned.
In support of her affirmative position on the issue above stated, petitioner cites Section 2, Rules
122 of the Rules of Court which provides:
SEC. 2. Who may appeal.—The People of the Philippines can not appeal if the defendant would
be placed thereby in double jeopardy. In all other cases either party may appeal from a final
judgment or ruling or from an order made after judgment affecting the substantial rights of the
appellant. (p. 12, Brief for the Petitioner, p. 60, Rollo).
Additionally, she cites Section 3 of Rule 111, from which she quotes the following:
SEC. 3. Other civil actions arising from offenses.—In all cases not included in the preceding
section the following rules shall be observed:
xxx xxx xxx
(c) Extinction of the penal action does not carry with it extinction of the civil, unless the
extinction proceeds from a declaration in a final judgment that the fact from which the civil
might arise did not exist. In other cases, the person entitled to the civil action may institute it in
the jurisdiction and in the manner provided by law against the person who may be liable for
restitution of the thing and reparation or indemnity for the damage suffered. (Rule 111, Rules
of Court in the Philippines.) (pp. 13-14, Id)
Finally, she cites Article 29 of the Civil Code of the Philippines which reads:
ART. 29. When the accused in a criminal prosecution is acquitted on the ground that his guilt
has not been proved beyond reasonable doubt, a civil action for damages for the same act or
omission may be instituted. Such action requires only a preponderance of evidence. Upon
motion of the defendant, the court may require the plaintiff to file a bond to answer for
damages in case the complaint should be found to be malicious.
If in a criminal case the judgment of acquittal is based upon reasonable doubt, the court shall
so declare. In the absence of any declaration to that effect, it may be inferred from the text of
the decision whether or not the acquittal is due to that ground. (p. 14, id).
From the aforequoted provisions, petitioners contend that the remedy of appeal is expressly
granted to her inasmuch as the civil action for the recovery of civil liability is impliedly instituted
with the criminal action, Criminal Case No. 4205 of the Court of First Instance of Baguio and
Benguet, there having been no reservation to file a separate civil action or a waiver of the right
to file one. She had in fact hired a private prosecutor to handle, primarily the civil aspect of the
case, the prosecution of the crime remaining under the direction and control of the prosecuting
Fiscal. The private prosecutor presented evidence bearing on the civil liability of the accused. In
a memorandum he filed, he also discussed extensively the civil liability of the accused, despite
which, the trial court failed to rule on the latter's civil liability to the complainant.
It is this omission, as alleged by petitioner herein, that con constitutes the thrust of her first
assignment of error, the only one We feel called upon to rule on, among her three assigned
errors, the other two having relation to how the trial court evaluated the evidence, and the
extent of damages petitioner alleges to be entitled to under such evidence, which evidently may
not be passed upon in the instant proceedings, the evidence presented during the trial not
having been elevated to this Court, nor even to the Court of Appeals, at least not fully or
completely.
Confining ourselves, therefore, to the first assigned error, We find no ground to reverse the
Resolution of the Court of Appeals on the purely legal question of whether the petitioner, as
complainant in Criminal Case No. 4025 of the Court of First Instance of Baguio and Benguet, for
estafa, can appeal from the judgment acquitting the accused, because the trial court failed to
declare the latter's civil liability to the complainant, which was allegedly proven by the evidence.
The provision of Article 29 of the Civil Code relied upon by the petitioner clearly requires the
institution of a separate action by the filing of the proper complaint. To such complaint, the
accused as the defendant therein, may file the appropriate responsive pleading, which may be
an answer or a motion to dismiss. In a criminal action, notwithstanding that the action for the
recovery of civil liability is impliedly instituted therewith, if not reserved or waived, the accused
is not afforded the same remedy. Neither is the mandatory pre-trial held as is required of all
civil actions. The obvious reason is that the civil liability recoverable in the criminal action is one
solely dependent upon conviction, because said liability arises from the offense, with respect to
which pre-trial is never held to obtain admission as to the commission thereof, except on the
occasion of arraignment. This is the kind of civil liability involved in the civil action deemed filed
simultaneously with the filing of criminal action, unless it is reserved or waived, as so expressly
provided in Section 1, Rule 111 of the Rules of Court and as held in People vs. Herrera, 74 Phil.
21.
If the civil liability arises from other sources than the commission of the offense, such as from
law or contract or quasi-delict, its enforcement has to be by an ordinary civil action, which, as
expressly provided in Article 29 of the Civil Code may be disposed of as a mere preponderance
of evidence would warrant. Then, all the defenses available, such as prescription, lack of
jurisdiction, set-off, and the other grounds for a motion to dismiss may be availed of, as may be
proper under the peculiar facts and circumstances of the case, complete with pre-trial after
issues have been joined. Upon these considerations, it becomes clear that the argument of
petitioner invoking the rule against multiplicity of action may not forcefully or convincingly be
put forth.
In the Resolution of the Court of Appeals several cases have been cited which held that an
appeal from the dismissal of the criminal case on motion by the fiscal may not be taken by the
offended party (People vs. Lipana 72 Phil. 168; People vs. Florendo, 73 Phil. 679). In the case of
People vs. Herrera, et al., 74 Phil. 21, the accused was acquitted without the court making any
pronouncement as to his civil liability, in exactly the same manner that the Court of First
Instance of Baguio and Benguet in Criminal Case No. 4025, was charged with a similar omission
in the case at bar. The Supreme Court did not permit an appeal by the offended party, the Court
saying:
criminally liable upon a review of the evidence, after the verdict of acquittal has been handed
down by the trial court. Again, petitioner tries to show that the cases cited by the Court of
Appeals are not in point. But she has not cited one single case faintly supporting her position as
she has tried to maintain in the instant case.
Nevertheless, petitioner may not complaint, as she does of being denied due process for
disallowing her appeal. She can institute a separate civil action if her cause of action could come
under the category of quasi-delict or one arising from law, contract or any other known source
of civil liability, but certainly not anymore from the offense of which petitioner had already been
acquitted. It is but fair to require petitioner to take this course of action, not only because she
would have to pay for the lawful expenses for instituting the action to obtain the relief she seeks
from respondent, from which she is spared in the prosecution of a criminal case, but also for
the respondent or defendant to avail of all defenses and remedies as are open to him in a
separate civil action not otherwise available in a criminal action that carries with it the civil
action when deemed simultaneously filed with it, to recover civil liability arising from the crime
charged.
For all the foregoing, the Resolution appealed from is affirmed, and the instant petition is,
accordingly, dismissed, without pronouncement as to costs.
SO ORDERED.

The decision of the justice of the peace court which acquitted the defendant of the charge and
did not make any pronouncement holding the defendant civilly liable put an end to the case,
not only by freeing the defendant from criminal responsibility but also by rejecting all liability
for damages arising from the alleged crime of malicious mischief. The offended parties not
having reserved their right to bring a separate civil action, the aforesaid decision of acquittal
covered both the criminal and the civil aspects of the case under Rule 107, section l (a) of the
new Rules of Court. An appeal from that decision to the Court of First Instance, as intended by
the offended parties, would reopen the question of defendant's civil liability arising from the
alleged crime. And considering that such civil liability must be based on the criminal
responsibility of the defendant (art. 100, Revised Penal Code), any review or re-examination of
the question of civil liability would perforce require a new determination of defendant's criminal
liability. But another trial upon defendant's criminal responsibility cannot be held, in view of his
previous acquittal in the justice of the peace court. So the appeal from the decision of the justice
of the peace court is not authorized by law.

Brought out in bold relief in the aforequoted ruling is that what is impliedly brought
simultaneously with the criminal action is the civil action to recover civil liability arising from the
offense. Hence, the two actions may rise or fall together. However, if the civil action is reserved,
or if the ground of acquittal is reasonable doubt as to the guilt of the accused, a separate civil
action may be filed, the complainant alleging a cause of action independent of, and not based
on, the commission of an offense. Only preponderance of evidence would then be required.

The futility of petitioner's instant recourse becomes all too evident upon consideration of the
principles enunciated, particularly in the Herrera case, since if the civil liability recoverable in a
criminal action is one arising from the crime charged, no longer may the respondent be found
G.R. No. 80194 March 21, 1989
EDGAR JARANTILLA, petitioner,
vs.
COURT OF APPEALS and JOSE KUAN SING, respondents.
Corazon Miraflores and Vicente P. Billena for petitioner.
Manuel S. Gemarino for private respondent.
REGALADO, J.:
The records show that private respondent Jose Kuan Sing was "side-swiped by a vehicle in the
evening of July 7, 1971 in lznart Street, Iloilo City" 1 The respondent Court of Appeals concurred
in the findings of the court a quo that the said vehicle which figured in the mishap, a Volkswagen
(Beetle type) car, was then driven by petitioner Edgar Jarantilla along said street toward the
direction of the provincial capitol, and that private respondent sustained physical injuries as a
consequence. 2
Petitioner was accordingly charged before the then City Court of Iloilo for serious physical
injuries thru reckless imprudence in Criminal Case No. 47207 thereof. 3 Private respondent, as
the complaining witness therein, did not reserve his right to institute a separate civil action and
he intervened in the prosecution of said criminal case through a private prosecutor. 4 Petitioner
was acquitted in said criminal case "on reasonable doubt".5
On October 30, 1974, private respondent filed a complaint against the petitioner in the former
Court of First Instance of Iloilo, Branch IV, 6 docketed therein as Civil Case No. 9976, and which
civil action involved the same subject matter and act complained of in Criminal Case No.
47027. 7 In his answer filed therein, the petitioner alleged as special and affirmative detenses
that the private respondent had no cause of action and, additionally, that the latter's cause of
action, if any, is barred by the prior judgment in Criminal Case No. 47207 inasmuch as when said
criminal case was instituted the civil liability was also deemed instituted since therein plaintiff
failed to reserve the civil aspect and actively participated in the criminal case. 8
Thereafter, acting on a motion to dismiss of therein defendant, the trial court issued on April 3,
1975 an order of denial, with the suggestion that "(t)o enrich our jurisprudence, it is suggested
that the defendant brings (sic) this ruling to the Supreme Court by certiorari or other
appropriate remedy, to review the ruling of the court". 9
On June 17, 1975, petitioner filed in this Court a petition for certiorari, prohibition and
mandamus, which was docketed as G.R. No. L-40992, 10 assailing the aforesaid order of the trial
court. Said petition was dismissed for lack of merit in the Court's resolution of July 23, 1975, and
a motion for reconsideration thereof was denied for the same reason in a resolution of October
28, 1975. 11
After trial, the court below rendered judgment on May 23, 1977 in favor of the herein private
respondent and ordering herein petitioner to pay the former the sum of P 6,920.00 for
hospitalization, medicines and so forth, P2,000.00 for other actual expenses, P25,000.00 for
moral damages, P5,000.00 for attorney's fees, and costs. 12
On July 29, 1987, the respondent Court of Appeals 13 affirmed the decision of the lower court
except as to the award for moral damages which it reduced from P25,000.00 to P18,000.00. A
motion for reconsideration was denied by respondent court on September 18, 1987. 14
The main issue for resolution by Us in the present recourse is whether the private respondent,
who was the complainant in the criminal action for physical injuries thru reckless imprudence
and who participated in the prosecution thereof without reserving the civil action arising from
the act or omission complained of, can file a separate action for civil liability arising from the
same act or omission where the herein petitioner was acquitted in the criminal action on
reasonable doubt and no civil liability was adjudicated or awarded in the judgment of acquittal.
Prefatorily, We note that petitioner raises a collateral issue by faulting the respondent court for
refusing to resolve an assignment of error in his appeal therein, said respondent court holding
that the main issue had been passed upon by this Court in G.R. No. L-40992 hereinbefore
mentioned. It is petitioner's position that the aforesaid two resolutions of the Court in said case,
the first dismissing the petition and the second denying the motion for reconsideration, do not
constitute the "law of the case' which would control the subsequent proceed ings in this
controversy.
1. We incline favorably to petitioner's submission on this score.
The "doctrine of the law of the case" has no application at the aforesaid posture of the
proceedings when the two resolutions were handed down. While it may be true that G.R. No.
L-40992 may have involved some of the issues which were thereafter submitted for resolution
on the merits by the two lower courts, the proceedings involved there was one for certiorari,
prohibition and mandamus assailing an interlocutory order of the court a quo, specifically, its
order denying therein defendants motion to dismiss. This Court, without rendering a specific
opinion or explanation as to the legal and factual bases on which its two resolutions were
predicated, simply dismissed the special civil action on that incident for lack of merit. It may very
well be that such resolution was premised on the fact that the Court, at that stage and on the
basis of the facts then presented, did not consider that the denial order of the court a quo was
tainted with grave abuse of discretion. 15 To repeat, no rationale for such resolutions having
been expounded on the merits of that action, no law of the case may be said to have been laid
down in G.R. No. L-40992 to justify the respondent court's refusal to consider petitioner's claim
that his former acquittal barred the separate action.
'Law of the case' has been defined as the opinion delivered on a former appeal. More
specifically, it means that whatever is once irrevocably established, as the controlling legal rule
of decision between the same parties in the same case continues to be the law of the case,
whether correct on general principles or not, so long as the facts on which such decision was
predicated continue to be the facts of the case before the court (21 C.J.S. 330). (Emphasis
supplied). 16
It need not be stated that the Supreme Court being the court of last resort, is the final arbiter
of all legal questions properly brought before it and that its decision in any given case
constitutes the law of that particular case . . . (Emphasis supplied). 17
It is a rule of general application that the decision of an appellate court in a case is the law of
the case on the points presented throughout all the subsequent proceedings in the case in both
the trial and the appellate courts, and no question necessarily involved and decided on that
appeal will be considered on a second appeal or writ of error in the same case, provided the
facts and issues are substantially the same as those on which the first question rested and,
according to some authorities, provided the decision is on the merits . . . 18
2. With the foregoing ancillary issue out of the way, We now consider the principal plaint of
petitioner.
Apropos to such resolution is the settled rule that the same act or omission (in this case, the
negligent sideswiping of private respondent) can create two kinds of liability on the part of the
offender, that is, civil liability ex delicto and civil liability ex quasi delicto. Since the same
negligence can give rise either to a delict or crime or to a quasi-delict or tort, either of these two
types of civil liability may be enforced against the culprit, subject to the caveat under Article
2177 of the Civil Code that the offended party cannot recover damages under both types of
liability. 19
We also note the reminder of petitioner that in Roa vs. De la Cruz, et al., 20 it was held that
where the offended party elected to claim damages arising from the offense charged in the
criminal case through her intervention as a private prosecutor, the final judgment rendered
therein constituted a bar to the subsequent civil action based upon the same cause. It is meet,
however, not to lose sight of the fact that the criminal action involved therein was for serious
oral defamation which, while within the contemplation of an independent civil action under
Article 33 of the Civil Code, constitutes only a penal omen and cannot otherwise be considered
as a quasi-delict or culpa aquiliana under Articles 2176 and 2177 of the Civil Code. And while
petitioner draws attention to the supposed reiteration of the Roa doctrine in the later case
of Azucena vs. Potenciano, et al., 21 this time involving damage to property through negligence
as to make out a case of quasi-delict under Articles 2176 and 2180 of the Civil Code, such
secondary reliance is misplaced since the therein plaintiff Azucena did not intervene in the
criminal action against defendant Potenciano. The citation of Roa in the later case
of Azucena was, therefore, clearly obiter and affords no comfort to petitioner.
These are aside from the fact that there have been doctrinal, and even statutory, 22 changes
on the matter of civil actions arising from criminal offenses and quasi-delicts. We will reserve
our discussion on the statutory aspects for another case and time and, for the nonce, We will
consider the doctrinal developments on this issue.
In the case under consideration, private respondent participated and intervened in the
prosecution of the criminal suit against petitioner. Under the present jurisprudential milieu,
where the trial court acquits the accused on reasonable doubt, it could very well make a
pronounce ment on the civil liability of the accused 23 and the complainant could file a petition
for mandamus to compel the trial court to include such civil liability in the judgment of
acquittal. 24
Private respondent, as already stated, filed a separate civil aciton after such acquittal. This is
allowed under Article 29 of the Civil Code. We have ruled in the relatively recent case of Lontoc
vs. MD Transit & Taxi Co., Inc., et al. 25that:
In view of the fact that the defendant-appellee de la Cruz was acquitted on the ground that 'his
guilt was not proven beyond reasonable doubt' the plaintiff-appellant has the right to institute
a separate civil action to recover damages from the defendants-appellants (See Mendoza vs.
Arrieta, 91 SCRA 113). The well-settled doctrine is that a person, while not criminally liable may
still be civilly liable. 'The judgment of acquittal extinguishes the civil liability of the accused only
when it includes a declaration that the facts from which the civil liability might arise did not
exist'. (Padilla vs. Court of Appeals, 129 SCRA 558 cited in People vs. Rogelio Ligon y Tria, et al.,
G.R. No. 74041, July 29, 1987; Filomeno Urbano vs. Intermediate Appellate Court, G.R. No.
72964, January 7, 1988). The ruling is based on Article 29 of the Civil Code which provides:
When the accused in a criminal prosecution is acquitted on the ground that his guilt has not
been proved beyond reasonable doubt, a civil action for damages for the same act or omission
may be instituted. Such action requires only a preponderance of evidence ... 26
Another consideration in favor of private respondent is the doctrine that the failure of the court
to make any pronouncement, favorable or unfavorable, as to the civil liability of the accused
amounts to a reservation of the right to have the civil liability litigated and determined in a
separate action. The rules nowhere provide that if the court fails to determine the civil liability
it becomes no longer enforceable. 27
Furthermore, in the present case the civil liability sought to be recovered through the
application of Article 29 is no longer that based on or arising from the criminal offense. There is
persuasive logic in the view that, under such circumstances, the acquittal of the accused
foreclosed the civil liability based on Article 100 of the Revised Penal Code which presupposes
the existence of criminal liability or requires a conviction of the offense charged. Divested of its
penal element by such acquittal, the causative act or omission becomes in effect a quasi-delict,
hence only a civil action based thereon may be instituted or prosecuted thereafter, which action
can be proved by mere preponderance of evidence. 28 Complementary to such considerations,
Article 29 enunciates the rule, as already stated, that a civil action for damages is not precluded
by an acquittal on reasonable doubt for the same criminal act or omission.
The allegations of the complaint filed by the private respondent supports and is constitutive of
a case for a quasi-delict committed by the petitioner, thus:
3. That in the evening of July 7, 197l at about 7:00 o'clock, the plaintiff crossed Iznart Street
from his restaurant situated at 220 lznart St., Iloilo City, Philippines, on his way to a meeting of
the Cantonese Club at Aldeguer Street, Iloilo City and while he was standing on the middle of
the street as there were vehicles coming from the Provincial Building towards Plazoleta Gay,
Iloilo City, he was bumped and sideswiped by Volkswagen car with plate No. B-2508 W which
was on its way from Plazoleta Gay towards the Provincial Capitol, Iloilo City, which car was being
driven by the defendant in a reckless and negligent manner, at an excessive rate of speed and
in violation of the provisions of the Revised Motor Vehicle (sic) as amended, in relation to the
Land Transportation and Traffic Code as well as in violation of existing city ordinances, and by
reason of his inexcusable lack of precaution and failure to act with due negligence and by failing
to take into consideration (sic) his degree of intelligence, the atmospheric conditions of the
place as well as the width, traffic, visibility and other conditions of lznart Street; 29

Since this action is based on a quasi-delict, the failure of the respondent to reserve his right to
file a separate civil case and his intervention in the criminal case did not bar him from filing such
separate civil action for damages. 30 The Court has also heretofore ruled in Elcano vs.
Hill 31 that —

... a separate civil action lies 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 also actually 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. In other words, the extinction of civil liability referred to in Par. (c) of Sec. 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 a quasi-delict only and not as a crime is not
extinguished even by a declaration in the criminal case that the criminal act charged has not
happened or has not been committed by the accused . . .

The aforecited case of Lontoc vs. MD Transit & Taxi Co., Inc., et al. involved virtually the same
factual situation. The Court, in arriving at the conclusion hereinbefore quoted, expressly
declared that the failure of the therein plaintiff to reserve his right to file a separate civil case is
not fatal; that his intervention in the criminal case did not bar him from filing a separate civil
action for damages, especially considering that the accused therein was acquitted because his
guilt was not proved beyond reasonable doubt; that the two cases were anchored on two
different causes of action, the criminal case being on a violation of Article 365 of the Revised
Penal Code while the subsequent complaint for damages was based on a quasi-delict; and that
in the judgment in the criminal case the aspect of civil liability was not passed upon and
resolved. Consequently, said civil case may proceed as authorized by Article 29 of the Civil Code.

Our initial adverse observation on a portion of the decision of respondent court aside, We hold
that on the issues decisive of this case it did not err in sustaining the decision a quo.

WHEREFORE, the writ prayed for is hereby DENIED and the decision of the respondent Court of
Appeals is AFFIRMED, without costs.

SO ORDERED.
G.R. No. 165496 February 12, 2007
HUN HYUNG PARK, Petitioner,
vs.
EUNG WON CHOI, Respondent.
DECISION
CARPIO MORALES, J.:
Petitioner, Hun Hyung Park, assails the Court of Appeals (CA) Resolutions dated May 20,
20041 and September 28, 20042 in CA G.R. CR No. 28344 dismissing his petition and denying
reconsideration thereof, respectively.
In an Information3 dated August 31, 2000, respondent, Eung Won Choi, was charged for
violation of Batas Pambansa Blg. 22, otherwise known as the Bouncing Checks Law, for issuing
on June 28, 1999 Philippine National Bank Check No. 0077133 postdated August 28, 1999 in the
amount of ₱1,875,000 which was dishonored for having been drawn against insufficient funds.
Upon arraignment, respondent, with the assistance of counsel, pleaded "not guilty" to the
offense charged. Following the pre-trial conference, the prosecution presented its evidence-in-
chief.
After the prosecution rested its case, respondent filed a Motion for Leave of Court to File
Demurrer to Evidence to which he attached his Demurrer, asserting that the prosecution failed
to prove that he received the notice of dishonor, hence, the presumption of the element of
knowledge of insufficiency of funds did not arise.4
By Order5 of February 27, 2003, the Metropolitan Trial Court (MeTC) of Makati, Branch 65
granted the Demurrer and dismissed the case. The prosecution’s Motion for Reconsideration
was denied.6
Petitioner appealed the civil aspect7 of the case to the Regional Trial Court (RTC) of Makati,
contending that the dismissal of the criminal case should not include its civil aspect.
By Decision of September 11, 2003, Branch 60 of the RTC held that while the evidence presented
was insufficient to prove respondent’s criminal liability, it did not altogether extinguish his civil
liability. It accordingly granted the appeal of petitioner and ordered respondent to pay him the
amount of ₱1,875,000 with legal interest.8
Upon respondent’s motion for reconsideration, however, the RTC set aside its decision and
ordered the remand of the case to the MeTC "for further proceedings, so that the defendant [-
respondent herein] may adduce evidence on the civil aspect of the case." 9 Petitioner’s motion
for reconsideration of the remand of the case having been denied, he elevated the case to the
CA which, by the assailed resolutions, dismissed his petition for the following reasons:
1. The verification and certification of non-forum shopping attached to the petition does not
fully comply with Section 4, as amended by A.M. No. 00-2-10-SC, Rule 7, 1997 Rules of Court,
because it does not give the assurance that the allegations of the petition are true and correct
based on authentic records.
2. The petition is not accompanied by copies of certain pleadings and other material portions of
the record, (i.e., motion for leave to file demurrer to evidence, demurrer to evidence and the
opposition thereto, and the Municipal [sic] Trial Court’s Order dismissing Criminal Case No.
294690) as would support the allegations of the petition (Sec. 2, Rule 42, ibid.).
3. The Decision dated September 11, 2003 of the Regional Trial Court attached to the petition
is an uncertified and illegible mere machine copy of the original (Sec. 2, Rule 42, ibid.).
4. Petitioners failed to implead the People of the Philippines as party-respondent in the
petition.10
In his present petition, petitioner assails the above-stated reasons of the appellate court in
dismissing his petition.
The manner of verification for pleadings which are required to be verified, such as a petition for
review before the CA of an appellate judgment of the RTC,11 is prescribed by Section 4 of Rule
7 of the Rules of Court:
Sec. 4. Verification. Except when otherwise specifically required by law or rule, pleadings need
not be under oath, verified or accompanied by affidavit.
A pleading is verified by an affidavit that the affiant has read the pleading and that the
allegations therein are true and correct of his personal knowledge or based on authentic
records.
A pleading required to be verified which contains a verification based on "information and
belief," or upon "knowledge, information and belief," or lacks a proper verification shall be
treated as an unsigned pleading.12(Emphasis and underscoring supplied)
Petitioner argues that the word "or" is a disjunctive term signifying disassociation and
independence, hence, he chose to affirm in his petition he filed before the court a quo that its
contents are "true and correct of my own personal knowledge,"13 and not on the basis of
authentic documents.
On the other hand, respondent counters that the word "or" may be interpreted in a conjunctive
sense and construed to mean as "and," or vice versa, when the context of the law so warrants.
A reading of the above-quoted Section 4 of Rule 7 indicates that a pleading may be verified
under either of the two given modes or under both. The veracity of the allegations in a pleading
may be affirmed based on either one’s own personal knowledge or on authentic records, or
both, as warranted. The use of the preposition "or" connotes that either source qualifies as a
sufficient basis for verification and, needless to state, the concurrence of both sources is more
than sufficient.14 Bearing both a disjunctive and conjunctive sense, this parallel legal
signification avoids a construction that will exclude the combination of the alternatives or bar
the efficacy of any one of the alternatives standing alone.15
Contrary to petitioner’s position, the range of permutation is not left to the pleader’s liking, but
is dependent on the surrounding nature of the allegations which may warrant that a verification
be based either purely on personal knowledge, or entirely on authentic records, or on both
sources.
As pointed out by respondent, "authentic records" as a basis for verification bear significance in
petitions wherein the greater portions of the allegations are based on the records of the
proceedings in the court of origin and/or the court a quo, and not solely on the personal
knowledge of the petitioner. To illustrate, petitioner himself could not have affirmed, based on
his personal knowledge, the truthfulness of the statement in his petition16 before the CA that at
the pre-trial conference respondent admitted having received the letter of demand, because
he (petitioner) was not present during the conference.17 Hence, petitioner needed to rely on
the records to confirm its veracity.
Verification is not an empty ritual or a meaningless formality. Its import must never be sacrificed
in the name of mere expedience or sheer caprice. For what is at stake is the matter of verity
attested by the sanctity of an oath18 to secure an assurance that the allegations in the pleading
have been made in good faith, or are true and correct and not merely speculative.19
This Court has strictly been enforcing the requirement of verification and certification and
enunciating that obedience to the requirements of procedural rules is needed if fair results are
to be expected therefrom. Utter disregard of the rules cannot just be rationalized by harking on
the policy of liberal construction.20 While the requirement is not jurisdictional in nature, it does
not make it less a rule. A relaxed application of the rule can only be justified by the attending
circumstances of the case.21
To sustain petitioner’s explanation that the basis of verification is a matter of simple preference
would trivialize the rationale and diminish the resoluteness of the rule. It would play on
predilection and pay no heed in providing enough assurance of the correctness of the
allegations.
On the second reason of the CA in dismissing the petition – that the petition was not
accompanied by copies of certain pleadings and other material portions of the record as would
support the allegations of the petition (i.e., Motion for Leave to File Demurrer to Evidence,
Demurrer to Evidence and the Opposition thereto, and the MeTC February 27, 2003 Order
dismissing the case) – petitioner contends that these documents are immaterial to his appeal.
Contrary to petitioner’s contention, however, the materiality of those documents is very
apparent since the civil aspect of the case, from which he is appealing, was likewise dismissed
by the trial court on account of the same Demurrer.
Petitioner, nonetheless, posits that he subsequently submitted to the CA copies of the
enumerated documents, save for the MeTC February 27, 2003 Order, as attachments to his
Motion for Reconsideration.
The Rules, however, require that the petition must "be accompanied by clearly legible duplicate
original or true copies of the judgments or final orders of both lower courts, certified correct by
the clerk of court."22
A perusal of the petition filed before the CA shows that the only duplicate original or certified
true copies attached as annexes thereto are the January 14, 2004 RTC Order granting
respondent’s Motion for Reconsideration and the March 29, 2004 RTC Order denying
petitioner’s Motion for Reconsideration. The copy of the September 11, 2003 RTC Decision,
which petitioner prayed to be reinstated, is not a certified true copy and is not even legible.
Petitioner later recompensed though by appending to his Motion for Reconsideration a
duplicate original copy.
While petitioner averred before the CA in his Motion for Reconsideration that the February 27,
2003 MeTC Order was already attached to his petition as Annex "G," Annex "G" bares a replicate
copy of a different order, however. It was to this Court that petitioner belatedly submitted an
uncertified true copy of the said MeTC Order as an annex to his Reply to respondent’s Comment.
This Court in fact observes that the copy of the other MeTC Order, that dated May 5, 2003,
which petitioner attached to his petition before the CA is similarly uncertified as true.
Since both Orders of the MeTC were adverse to him even with respect to the civil aspect of the
case, petitioner was mandated to submit them in the required form.23
In fine, petitioner fell short in his compliance with Section 2 (d) of Rule 42, the mandatory tenor
of which is discernible thereunder and is well settled.24 He has not, however, advanced any
strong compelling reasons to warrant a relaxation of the Rules, hence, his petition before the
CA was correctly dismissed.
Procedural rules are tools designed to facilitate the adjudication of cases. Courts and litigants
alike are thus enjoined to abide strictly by the rules. And while the Court, in some instances,
allows a relaxation in the application of the rules, this we stress, was never intended to forge a
bastion for erring litigants to violate the rules with impunity. The liberality in the interpretation
and application of the rules applies only in proper cases and under justifiable causes and
circumstances. While it is true that litigation is not a game of technicalities, it is equally true that
every case must be prosecuted in accordance with the prescribed procedure to insure an
orderly and speedy administration of justice.25 (Emphasis supplied)
As to the third reason for the appellate court’s dismissal of his petition – failure to implead the
People of the Philippines as a party in the petition – indeed, as petitioner contends, the same is
of no moment, he having appealed only the civil aspect of the case. Passing on the dual purpose
of a criminal action, this Court ruled:
Unless the offended party waives the civil action or reserves the right to institute it separately
or institutes the civil action prior to the criminal action, there are two actions involved in a
criminal case. The first is the criminal action for the punishment of the offender. The parties are
the People of the Philippines as the plaintiff and the accused. In a criminal action, the private
complainant is merely a witness for the State on the criminal aspect of the action. The second
is the civil action arising from the delict. The private complainant is the plaintiff and the accused
is the defendant. There is a merger of the trial of the two cases to avoid multiplicity of
suits.26 (Underscoring supplied)
It bears recalling that the MeTC acquitted respondent.27 As a rule, a judgment of acquittal is
immediately final and executory and the prosecution cannot appeal the acquittal because of
the constitutional prohibition against double jeopardy.
Either the offended party or the accused may, however, appeal the civil aspect of the judgment
despite the acquittal of the accused. The public prosecutor has generally no interest in appealing
the civil aspect of a decision acquitting the accused. The acquittal ends his work. The case is
terminated as far as he is concerned. The real parties in interest in the civil aspect of a decision
are the offended party and the accused.28
Technicality aside, the petition is devoid of merit.
When a demurrer to evidence is filed without leave of court, the whole case is submitted for
judgment on the basis of the evidence for the prosecution as the accused is deemed to have
waived the right to present evidence.29 At that juncture, the court is called upon to decide the
case including its civil aspect, unless the enforcement of the civil liability by a separate civil
action has been waived or reserved.30
If the filing of a separate civil action has not been reserved or priorly instituted or the
enforcement of civil liability is not waived, the trial court should, in case of conviction, state the
civil liability or damages caused by the wrongful act or omission to be recovered from the
accused by the offended party, if there is any.31
For, in case of acquittal, the accused may still be adjudged civilly liable. The extinction of the
penal action does not carry with it the extinction of the civil action where (a) the acquittal is
based on reasonable doubt as only preponderance of evidence is required; (b) the court
declares that the liability of the accused is only civil; and (c) the civil liability of the accused does
not arise from or is not based upon the crime of which the accused was acquitted.32
The civil action based on delict may, however, be deemed extinguished if there is a finding on
the final judgment in the criminal action that the act or omission from which the civil liability
may arise did not exist.33
In case of a demurrer to evidence filed with leave of court, the accused may adduce
countervailing evidence if the court denies the demurrer.34 Such denial bears no distinction as
to the two aspects of the case because there is a disparity of evidentiary value between the
quanta of evidence in such aspects of the case. In other words, a court may not deny the
demurrer as to the criminal aspect and at the same time grant the demurrer as to the civil
aspect, for if the evidence so far presented is not insufficient to prove the crime beyond
reasonable doubt, then the same evidence is likewise not insufficient to establish civil liability
by mere preponderance of evidence.
On the other hand, if the evidence so far presented is insufficient as proof beyond reasonable
doubt, it does not follow that the same evidence is insufficient to establish a preponderance of
evidence. For if the court grants the demurrer, proceedings on the civil aspect of the case
generally proceeds. The only recognized instance when an acquittal on demurrer carries with it
the dismissal of the civil aspect is when there is a finding that the act or omission from which
the civil liability may arise did not exist. Absent such determination, trial as to the civil aspect of
the case must perforce continue. Thus this Court, in Salazar v. People,35 held:
If demurrer is granted and the accused is acquitted by the court, the accused has the right to
adduce evidence on the civil aspect of the case unless the court also declares that the act or
omission from which the civil liability may arise did not exist.36
In the instant case, the MeTC granted the demurrer and dismissed the case without any finding
that the act or omission from which the civil liability may arise did not exist.
Respondent did not assail the RTC order of remand. He thereby recognized that there is basis
for a remand.
Indicatively, respondent stands by his defense that he merely borrowed ₱1,500,000 with the
remainder representing the interest, and that he already made a partial payment of ₱1,590,000.
Petitioner counters, however, that the payments made by respondent pertained to other
transactions.37 Given these conflicting claims which are factual, a remand of the case would
afford the fullest opportunity for the parties to ventilate, and for the trial court to resolve the
same.
Petitioner finally posits that respondent waived his right to present evidence on the civil aspect
of the case (1) when the grant of the demurrer was reversed on appeal, citing Section 1 of Rule
33,38 and (2) when respondent orally opposed petitioner’s motion for reconsideration pleading
that proceedings with respect to the civil aspect of the case continue.
Petitioner’s position is tenuous.
Petitioner’s citation of Section 1 of Rule 33 is incorrect.1awphi1.net Where a court has
jurisdiction over the subject matter and over the person of the accused, and the crime was
committed within its territorial jurisdiction, the court necessarily exercises jurisdiction over all
issues that the law requires it to resolve.
One of the issues in a criminal case being the civil liability of the accused arising from the crime,
the governing law is the Rules of Criminal Procedure, not the Rules of Civil Procedure which
pertains to a civil action arising from the initiatory pleading that gives rise to the suit.39
As for petitioner’s attribution of waiver to respondent, it cannot be determined with certainty
from the records the nature of the alleged oral objections of respondent to petitioner’s motion
for reconsideration of the grant of the demurrer to evidence. Any waiver of the right to present
evidence must be positively demonstrated. Any ambiguity in the voluntariness of the waiver is
frowned upon,40 hence, courts must indulge every reasonable presumption against it.41
This Court therefore upholds respondent’s right to present evidence as reserved by his filing of
leave of court to file the demurrer.
WHEREFORE, the petition is, in light of the foregoing discussions, DENIED.
The case is REMANDED to the court of origin, Metropolitan Trial Court of Makati City, Branch
65 which is DIRECTED to forthwith set Criminal Case No. 294690 for further proceedings only
for the purpose of receiving evidence on the civil aspect of the case.

Costs against petitioner.

SO ORDERED.
G.R. No. 151931. September 23, 2003
ANAMER SALAZAR,, Petitioner, v. THE PEOPLE OF THE PHILIPPINES and J.Y. BROTHERS
MARKETING CORPORATION, Respondents.
DECISION
CALLEJO, SR., J.:
This is a petition for review on certiorari under Rule 45 of the 1997 Rules of Criminal Procedure
of the Order1 of the Regional Trial Court, 5th Judicial Region, Legazpi City, Branch 5,2 dated
November 19, 2001, and its Order3 dated January 14, 2002 denying the motion for
reconsideration of the decision of the said court on the civil aspect thereof and to allow her to
present evidence thereon.
On June 11, 1997, an Information for estafa was filed against herein petitioner Anamer D.
Salazar and co-accused Nena Jaucian Timario with the Regional Trial Court of Legazpi City,
docketed as Criminal Case No. 7474 which reads as follows:
That sometime in the month of October, 1996, in the City of Legazpi, Philippines, and within the
jurisdiction of this Honorable Court, the above named-accused, conspiring and confederating
with each other, with intent to defraud by means of false pretenses or fraudulent acts executed
simultaneously with the commission of the fraud, did then and there wilfully, unlawfully and
feloniously, on the part of accused NENA JAUCIAN TIMARIO, drew and issue[d] PRUDENTIAL
BANK, LEGASPI CITY BRANCH CHECK NO. 067481, dated October 15, 1996, in the amount
of P214,000.00 in favor of J.Y. BROTHERS MARKETING CORPORATION, represented by its Branch
Manager, JERSON O. YAO, and accused ANAMER D. SALAZAR endorsed and negotiated said
check as payment of 300 cavans of rice obtained from J.Y. BROTHERS MARKETING
CORPORATION, knowing fully well that at that time said check was issued and endorsed, Nena
Jaucian Timario did not have sufficient funds in or credit with the drawee bank to cover the
amount called for therein and without informing the payee of such circumstance; that when
said check was presented to the drawee bank for payment, the same was consequently
dishonored and refused payment for the reason of ACCOUNT CLOSED; that despite demands,
accused failed and refused and still fail and refuse to pay and/or make arrangement for the
payment of the said check, to the damage and prejudice of said J.Y. BROTHERS MARKETING
CORPORATION.
CONTRARY TO LAW.4cräläwvirtualibräry
Upon arraignment, the petitioner, assisted by counsel, entered a plea of not guilty. Trial
thereafter ensued.
The Evidence of the Prosecution
On October 15, 1996, petitioner Anamer Salazar purchased 300 cavans of rice from J.Y. Brothers
Marketing Corporation, through Mr. Jerson Yao. As payment for these cavans of rice, the
petitioner gave the private complainant Check No. 067481 drawn against the Prudential Bank,
Legazpi City Branch, dated October 15, 1996, by one Nena Jaucian Timario in the amount
of P214,000. Jerson Yao accepted the check upon the petitioners assurance that it was a good
check. The cavans of rice were picked up the next day by the petitioner. Upon presentment, the
check was dishonored because it was drawn under a closed account (Account Closed). The
petitioner was informed of such dishonor. She replaced the Prudential Bank check with Check
No. 365704 drawn against the Solid Bank, Legazpi Branch, which, however, was returned with
the word DAUD (Drawn Against Uncollected Deposit).
After the prosecution rested its case, the petitioner filed a Demurrer to Evidence with Leave of
Court5 alleging that she could not be guilty of the crime as charged for the following reasons:
(a) she was merely an indorser of the check issued by Nena Timario, and Article 315, paragraph
2(d) on estafa penalizes only the issuer of the check and not the indorser thereof; (b) there is
no sufficient evidence to prove that the petitioner conspired with the issuer of the check, Nena
Jaucian Timario, in order to defraud the private complainant; (c) after the first check was
dishonored, the petitioner replaced it with a second one. The first transaction had therefore
been effectively novated by the issuance of the second check. Unfortunately, her personal check
was dishonored not for insufficiency of funds, but for DAUD, which in banking parlance means
drawn against uncollected deposit. According to the petitioner, this means that the account had
sufficient funds but was still restricted because the deposit, usually a check, had not yet been
cleared.
The prosecution filed its comment/opposition to the petitioners demurrer to evidence.
On November 19, 2001, the trial court rendered judgment acquitting the petitioner of the crime
charged but ordering her to remit to the private complainant the amount of the check as
payment for her purchase. The trial court ruled that the evidence for the prosecution did not
establish the existence of conspiracy beyond reasonable doubt between the petitioner and the
issuer of the check, her co-accused Nena Jaucian Timario, for the purpose of defrauding the
private complainant. In fact, the private complainant, Jerson Yao, admitted that he had never
met Nena Jaucian Timario who remained at large. As a mere indorser of the check, the
petitioners breach of the warranty that the check was a good one is not synonymous with the
fraudulent act of falsely pretending to possess credit under Article 315(2)(d). The decretal
portion of the trial courts judgment reads as follows:
WHEREFORE, premises considered, the accused Anamer D. Salazar is hereby ACQUITTED of the
crime charged but is hereby held liable for the value of the 300 bags of rice. Accused Anamer D.
Salazar is therefore ordered to pay J.Y. Brothers Marketing Corporation the sum of P214,000.00.
Costs against the accused.6cräläwvirtualibräry
Within the reglementary period therefor, the petitioner filed a motion for reconsideration on
the civil aspect of the decision with a plea that he be allowed to present evidence pursuant to
Rule 33 of the Rules of Court. On January 14, 2002, the court issued an order denying the
motion.
In her petition at bar, the petitioner assails the orders of the trial court claiming that after her
demurrer to evidence was granted by the trial court, she was denied due process as she was
not given the opportunity to adduce evidence to prove that she was not civilly liable to the
private respondent. The petitioner invokes the applicability of Rule 33 of the Rules of Civil
Procedure in this case, contending that before being adjudged liable to the private offended
party, she should have been first accorded the procedural relief granted in Rule 33.
The Petition Is Meritorious
According to Section 1, Rule 111 of the Revised Rules of Criminal Procedure
SECTION 1. Institution of criminal and civil actions. (a) When a criminal action is instituted, the
civil action for the recovery of civil liability arising from the offense charged shall be deemed
instituted with the criminal action unless the offended party waives the civil action, reserves the
right to institute it separately or institutes the civil action prior to the criminal action.
The reservation of the right to institute separately the civil action shall be made before the
prosecution starts presenting its evidence and under circumstances affording the offended
party a reasonable opportunity to make such reservation.
When the offended party seeks to enforce civil liability against the accused by way of moral,
nominal, temperate, or exemplary damages without specifying the amount thereof in the
complaint or information, the filing fees therefor shall constitute a first lien on the judgment
awarding such damages.
Where the amount of damages, other than actual, is specified in the complaint or information,
the corresponding filing fees shall be paid by the offended party upon the filing thereof in court.
Except as otherwise provided in these Rules, no filing fees shall be required for actual damages.
No counterclaim, cross-claim or third-party complaint may be filed by the accused in the
criminal case, but any cause of action which could have been the subject thereof may be
litigated in a separate civil action.
(b) The criminal action for violation of Batas Pambansa Blg. 22 shall be deemed to include the
corresponding civil action. No reservation to file such civil action separately shall be allowed.
Upon filing of the aforesaid joint criminal and civil actions, the offended party shall pay in full
the filing fees based on the amount of the check involved, which shall be considered as the
actual damages claimed. Where the complaint or information also seeks to recover liquidated,
moral, nominal, temperate or exemplary damages, the offended party shall pay additional filing
fees based on the amounts alleged therein. If the amounts are not so alleged but any of these
damages are subsequently awarded by the court, the filing fees based on the amount awarded
shall constitute a first lien on the judgment.
Where the civil action has been filed separately and trial thereof has not yet commenced, it may
be consolidated with the criminal action upon application with the court trying the latter case.
If the application is granted, the trial of both actions shall proceed in accordance with section 2
of this Rule governing consolidation of the civil and criminal actions.
The last paragraph of Section 2 of the said rule provides that the extinction of the penal action
does not carry with it the extinction of the civil action. Moreover, the civil action based on delict
shall be deemed extinguished if there is a finding in a final judgment in the criminal action that
the act or omission from which the civil liability may arise did not exist.7cräläwvirtualibräry
The criminal action has a dual purpose, namely, the punishment of the offender and indemnity
to the offended party. The dominant and primordial objective of the criminal action is the
punishment of the offender. The civil action is merely incidental to and consequent to the
conviction of the accused. The reason for this is that criminal actions are primarily intended to
vindicate an outrage against the sovereignty of the state and to impose the appropriate penalty
for the vindication of the disturbance to the social order caused by the offender. On the other
hand, the action between the private complainant and the accused is intended solely to
indemnify the former.8cräläwvirtualibräry
Unless the offended party waives the civil action or reserves the right to institute it separately
or institutes the civil action prior to the criminal action, there are two actions involved in a
criminal case. The first is the criminal action for the punishment of the offender. The parties are
the People of the Philippines as the plaintiff and the accused. In a criminal action, the private
complainant is merely a witness for the State on the criminal aspect of the action. The second
is the civil action arising from the delict. The private complainant is the plaintiff and the accused
is the defendant. There is a merger of the trial of the two cases to avoid multiplicity of suits.
The quantum of evidence on the criminal aspect of the case is proof beyond reasonable doubt,
while in the civil aspect of the action, the quantum of evidence is preponderance of
evidence.9 Under Section 3, Rule 1 of the 1997 Rules of Criminal Procedure, the said rules shall
govern the procedure to be observed in action, civil or criminal.
The prosecution presents its evidence not only to prove the guilt of the accused beyond
reasonable doubt but also to prove the civil liability of the accused to the offended party. After
the prosecution has rested its case, the accused shall adduce its evidence not only on the
criminal but also on the civil aspect of the case. At the conclusion of the trial, the court should
render judgment not only on the criminal aspect of the case but also on the civil aspect thereof:
SEC. 2. Contents of the judgment. If the judgment is of conviction, it shall state (1) the legal
qualification of the offense constituted by the acts committed by the accused and the
aggravating or mitigating circumstances which attended its commission; (2) the participation of
the accused in the offense, whether as principal, accomplice, or accessory after the fact; (3) the
penalty imposed upon the accused; and (4) the civil liability or damages caused by his wrongful
act or omission to be recovered from the accused by the offended party, if there is any, unless
the enforcement of the civil liability by a separate civil action has been reserved or waived.
In case the judgment is of acquittal, it shall state whether the evidence of the prosecution
absolutely failed to prove the guilt of the accused or merely failed to prove his guilt beyond
reasonable doubt. In either case, the judgment shall determine if the act or omission from which
the civil liability might arise did not exist.10cräläwvirtualibräry
The acquittal of the accused does not prevent a judgment against him on the civil aspect of the
case where (a) the acquittal is based on reasonable doubt as only preponderance of evidence is
required; (b) where the court declared that the liability of the accused is only civil; (c) where the
civil liability of the accused does not arise from or is not based upon the crime of which the
accused was acquitted. Moreover, the civil action based on the delict is extinguished if there is
a finding in the final judgment in the criminal action that the act or omission from which the civil
liability may arise did not exist or where the accused did not commit the acts or omission
imputed to him.
If the accused is acquitted on reasonable doubt but the court renders judgment on the civil
aspect of the criminal case, the prosecution cannot appeal from the judgment of acquittal as it
would place the accused in double jeopardy. However, the aggrieved party, the offended party
or the accused or both may appeal from the judgment on the civil aspect of the case within the
period therefor.
After the prosecution has rested its case, the accused has the option either to (a) file a demurrer
to evidence with or without leave of court under Section 23, Rule 119 of the Revised Rules of
Criminal Procedure, or to (b) adduce his evidence unless he waives the same. The aforecited
rule reads:
Sec. 23. Demurrer to evidence. After the prosecution rests its case, the court may dismiss the
action on the ground of insufficiency of evidence (1) on its own initiative after giving the
prosecution the opportunity to be heard or (2) upon demurrer to evidence filed by the accused
with or without leave of court.
If the court denies the demurrer to evidence filed with leave of court, the accused may adduce
evidence in his defense. When the demurrer to evidence is filed without leave of court, the
accused waives his right to present evidence and submits the case for judgment on the basis of
the evidence for the prosecution.
The motion for leave of court to file demurrer to evidence shall specifically state its grounds and
shall be filed within a non-extendible period of five (5) days after the prosecution rests its case.
The prosecution may oppose the motion within a non-extendible period of five (5) days from its
receipt.
If leave of court is granted, the accused shall file the demurrer to evidence within a non-
extendible period of ten (10) days from notice. The prosecution may oppose the demurrer to
evidence within a similar period from its receipt.
The order denying the motion for leave of court to file demurrer to evidence or the demurrer
itself shall not be reviewable by appeal or by certiorari before the judgment.
In criminal cases, the demurrer to evidence partakes of the nature of a motion to dismiss the
case for failure of the prosecution to prove his guilt beyond reasonable doubt. In a case where
the accused files a demurrer to evidence without leave of court, he thereby waives his right to
present evidence and submits the case for decision on the basis of the evidence of the
prosecution. On the other hand, if the accused is granted leave to file a demurrer to evidence,
he has the right to adduce evidence not only on the criminal aspect but also on the civil aspect
of the case if his demurrer is denied by the court.
If demurrer is granted and the accused is acquitted by the court, the accused has the right to
adduce evidence on the civil aspect of the case unless the court also declares that the act or
omission from which the civil liability may arise did not exist. If the trial court issues an order or
renders judgment not only granting the demurrer to evidence of the accused and acquitting
him but also on the civil liability of the accused to the private offended party, said judgment on
the civil aspect of the case would be a nullity for the reason that the constitutional right of the
accused to due process is thereby violated. As we held in Alonte v. Savellano,
Jr.:11cräläwvirtualibräry
Section 14, paragraphs (1) and (2), of Article III, of the Constitution provides the fundamentals.
(1) No person shall be held to answer for a criminal offense without due process of law.
(2) In all criminal prosecutions, the accused shall be presumed innocent until the contrary is
proved, and shall enjoy the right to be heard by himself and counsel, to be informed of the
nature and cause of the accusation against him, to have a speedy, impartial, and public trial, to
meet the witnesses face to face, and to have compulsory process to secure the attendance of
witnesses and the production of evidence in his behalf. However, after arraignment, trial may
proceed notwithstanding the absence of the accused provided that he has been duly notified
and his failure to appear is unjustifiable.
Jurisprudence acknowledges that due process in criminal proceedings, in particular, require (a)
that the court or tribunal trying the case is properly clothed with judicial power to hear and
determine the matter before it; (b) that jurisdiction is lawfully acquired by it over the person of
the accused; (c) that the accused is given an opportunity to be heard; and (d) that judgment is
rendered only upon lawful hearing.
The above constitutional and jurisprudentially postulates, by now elementary and deeply
imbedded in our own criminal justice system, are mandatory and indispensable. The principles
find universal acceptance and are tersely expressed in the oft-quoted statement that procedural
due process cannot possibly be met without a law which hears before it condemns, which
proceeds upon inquiry and renders judgment only after trial.12cräläwvirtualibräry
This is so because when the accused files a demurrer to evidence, the accused has not yet
adduced evidence both on the criminal and civil aspects of the case. The only evidence on record
is the evidence for the prosecution. What the trial court should do is to issue an order or partial
judgment granting the demurrer to evidence and acquitting the accused; and set the case for
continuation of trial for the petitioner to adduce evidence on the civil aspect of the case, and
for the private complainant to adduce evidence by way of rebuttal after which the parties may
adduce their sur-rebuttal evidence as provided for in Section 11, Rule 119 of the Revised Rules
of Criminal Procedure:
Sec. 11. Order of trial. The trial shall proceed in the following order:
(a) The prosecution shall present evidence to prove the charge and, in the proper case, the civil
liability.
(b) The accused may present evidence to prove his defense and damages, if any, arising from
the issuance of a provisional remedy in the case.

(c) The prosecution and the defense may, in that order, present rebuttal and sur-rebuttal
evidence unless the court, in furtherance of justice, permits them to present additional evidence
bearing upon the main issue.

(d) Upon admission of the evidence of the parties, the case shall be deemed submitted for
decision unless the court directs them to argue orally or to submit written memoranda.

(e) When the accused admits the act or omission charged in the complaint or information but
interposes a lawful defense, the order of trial may be modified.

Thereafter, the court shall render judgment on the civil aspect of the case on the basis of the
evidence of the prosecution and the accused.

In this case, the petitioner was charged with estafa under Article 315, paragraph 2(d) of the
Revised Penal Code. The civil action arising from the delict was impliedly instituted since there
was no waiver by the private offended party of the civil liability nor a reservation of the civil
action. Neither did he file a civil action before the institution of the criminal action.

The petitioner was granted leave of court to file a demurrer to evidence. The court issued an
order granting the demurrer on its finding that the liability of the petitioner was not criminal
but only civil. However, the court rendered judgment on the civil aspect of the case and ordered
the petitioner to pay for her purchases from the private complainant even before the petitioner
could adduce evidence thereon. Patently, therefore, the petitioner was denied her right to due
process.

IN LIGHT OF ALL THE FOREGOING, the Petition is GRANTED. The Orders dated November 19,
2001 and January 14, 2002 are SET ASIDE AND NULLIFIED. The Regional Trial Court of Legazpi
City, Branch 5, is hereby DIRECTED to set Criminal Case No. 7474 for the continuation of trial for
the reception of the evidence-in-chief of the petitioner on the civil aspect of the case and for
the rebuttal evidence of the private complainant and the sur-rebuttal evidence of the parties if
they opt to adduce any.

SO ORDERED.
G.R. No. 165732 December 14, 2006
SAFEGUARD SECURITY AGENCY, INC., and ADMER PAJARILLO, petitioners,
vs.
LAURO TANGCO, VAL TANGCO, VERN LARRY TANGCO, VAN LAURO TANGCO, VON LARRIE
TANGCO, VIEN LARI TANGCO and VIVIEN LAURIZ TANGCO, respondent.
AUSTRIA-MARTINEZ, J.:
Before us is a petition for review on certiorari filed by Safeguard Security Agency, Inc.
(Safeguard) and Admer Pajarillo (Pajarillo) assailing the Decision1 dated July 16, 2004 and the
Resolution2 dated October 20, 2004 issued by the Court of Appeals (CA) in CA-G.R. CV No.
77462.
On November 3, 1997, at about 2:50 p.m., Evangeline Tangco (Evangeline) went to Ecology
Bank, Katipunan Branch, Quezon City, to renew her time deposit per advise of the bank's cashier
as she would sign a specimen card. Evangeline, a duly licensed firearm holder with
corresponding permit to carry the same outside her residence, approached security guard
Pajarillo, who was stationed outside the bank, and pulled out her firearm from her bag to
deposit the same for safekeeping. Suddenly, Pajarillo shot Evangeline with his service shotgun
hitting her in the abdomen instantly causing her death.
Lauro Tangco, Evangeline's husband, together with his six minor children (respondents) filed
with the Regional Trial Court (RTC) of Quezon City, a criminal case of Homicide against Pajarillo,
docketed as Criminal Case No. 0-97-73806 and assigned to Branch 78. Respondents reserved
their right to file a separate civil action in the said criminal case. The RTC of Quezon City
subsequently convicted Pajarillo of Homicide in its Decision dated January 19, 2000.3 On appeal
to the CA, the RTC decision was affirmed with modification as to the penalty in a Decision4 dated
July 31, 2000. Entry of Judgment was made on August 25, 2001.
Meanwhile, on January 14, 1998, respondents filed with RTC, Branch 273, Marikina City, a
complaint5 for damages against Pajarillo for negligently shooting Evangeline and against
Safeguard for failing to observe the diligence of a good father of a family to prevent the damage
committed by its security guard. Respondents prayed for actual, moral and exemplary damages
and attorney's fees.
In their Answer,6 petitioners denied the material allegations in the complaint and alleged that
Safeguard exercised the diligence of a good father of a family in the selection and supervision
of Pajarillo; that Evangeline's death was not due to Pajarillo's negligence as the latter acted only
in self-defense. Petitioners set up a compulsory counterclaim for moral damages and attorney's
fees.
Trial thereafter ensued. On January 10, 2003, the RTC rendered its Decision,7 the dispositive
portion of which reads:
WHEREFORE, judgment is hereby rendered in favor of the plaintiffs, the heirs of Evangeline
Tangco, and against defendants Admer Pajarillo and Safeguard Security Agency, Inc. ordering
said defendants to pay the plaintiffs, jointly and severally, the following:
1. ONE HUNDRED FIFTY SEVEN THOUSAND FOUR HUNDRED THIRTY PESOS (P157,430.00), as
actual damages
2. FIFTY THOUSAND PESOS (P50,000.00) as death indemnity;
3. ONE MILLION PESOS (P1,000,000.00), as moral damages;
4. THREE HUNDRED THOUSAND PESOS (P300,000.00), as exemplary damages;
5. THIRTY THOUSAND PESOS (P30,000.00), as attorney's fees; and
6. costs of suit.
For lack of merit, defendants' counterclaim is hereby DISMISSED.
SO ORDERED. 8
The RTC found respondents to be entitled to damages. It rejected Pajarillo's claim that he merely
acted in self-defense. It gave no credence to Pajarillo's bare claim that Evangeline was seen
roaming around the area prior to the shooting incident since Pajarillo had not made such report
to the head office and the police authorities. The RTC further ruled that being the guard on duty,
the situation demanded that he should have exercised proper prudence and necessary care by
asking Evangeline for him to ascertain the matter instead of shooting her instantly; that Pajarillo
had already been convicted of Homicide in Criminal Case No. 0-97-73806; and that he also failed
to proffer proof negating liability in the instant case.
The RTC also found Safeguard as employer of Pajarillo to be jointly and severally liable with
Pajarillo. It ruled that while it may be conceded that Safeguard had perhaps exercised care in
the selection of its employees, particularly of Pajarillo, there was no sufficient evidence to show
that Safeguard exercised the diligence of a good father of a family in the supervision of its
employee; that Safeguard's evidence simply showed that it required its guards to attend
trainings and seminars which is not the supervision contemplated under the law; that
supervision includes not only the issuance of regulations and instructions designed for the
protection of persons and property, for the guidance of their servants and employees, but also
the duty to see to it that such regulations and instructions are faithfully complied with.
Petitioners appealed the RTC decision to the CA. On July 16, 2004, the CA issued its assailed
Decision, the dispositive portion of which reads:
IN VIEW OF ALL THE FOREGOING, the appealed decision is hereby AFFIRMED, with the
modification that Safeguard Security Agency, Inc.'s civil liability in this case is only subsidiary
under Art. 103 of the Revised Penal Code. No pronouncement as to costs.9
In finding that Safeguard is only subsidiarily liable, the CA held that the applicable provisions are
not Article 2180 in relation to Article 2176 of the Civil Code, on quasi-delicts, but the provisions
on civil liability arising from felonies under the Revised Penal Code; that since Pajarillo had been
found guilty of Homicide in a final and executory judgment and is said to be serving sentence in
Muntinlupa, he must be adjudged civilly liable under the provisions of Article 100 of the Revised
Penal Code since the civil liability recoverable in the criminal action is one solely dependent
upon conviction, because said liability arises from the offense charged and no other; that this is
also the civil liability that is deemed extinguished with the extinction of the penal liability with a
pronouncement that the fact from which the civil action might proceed does not exist; that
unlike in civil liability arising from quasi-delict, the defense of diligence of a good father of a
family in the employment and supervision of employees is inapplicable and irrelevant in civil
liabilities based on crimes or ex-delicto; that Article 103 of the Revised Penal Code provides that
the liability of an employer for the civil liability of their employees is only subsidiary, not joint or
solidary.
Petitioners filed their Motion for Reconsideration which the CA denied in a Resolution dated
October 20, 2004.
Hence, the instant Petition for Review on Certiorari with the following assignment of errors, to
wit:
The Honorable Court of Appeals gravely erred in finding petitioner Pajarillo liable to respondents
for the payment of damages and other money claims.
The Honorable Court of Appeals gravely erred when it applied Article 103 of the Revised Penal
Code in holding petitioner Safeguard solidarily [sic] liable with petitioner Pajarillo for the
payment of damages and other money claims.
The Honorable Court of Appeals gravely erred in failing to find that petitioner Safeguard Security
Agency, Inc. exercised due diligence in the selection and supervision of its employees, hence,
should be excused from any liability.10
The issues for resolution are whether (1) Pajarillo is guilty of negligence in shooting Evangeline;
and (2) Safeguard should be held solidarily liable for the damages awarded to respondents.
Safeguard insists that the claim for damages by respondents is based on culpa aquiliana under
Article 217611 of the Civil Code, in which case, its liability is jointly and severally with Pajarillo.
However, since it has established that it had exercised due diligence in the selection and
supervision of Pajarillo, it should be exonerated from civil liability.
We will first resolve whether the CA correctly held that respondents, in filing a separate civil
action against petitioners are limited to the recovery of damages arising from a crime or delict,
in which case the liability of Safeguard as employer under Articles 102 and 103 of the Revised
Penal Code12 is subsidiary and the defense of due diligence in the selection and supervision of
employee is not available to it.
The CA erred in ruling that the liability of Safeguard is only subsidiary.
The law at the time the complaint for damages was filed is Rule 111 of the 1985 Rules on
Criminal Procedure, as amended, to wit:
SECTION 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.
Respondents reserved the right to file a separate civil action and in fact filed the same on
January 14, 1998.
The CA found that the source of damages in the instant case must be the crime of homicide, for
which he had already been found guilty of and serving sentence thereof, thus must be governed
by the Revised Penal Code.
We do not agree.
An act or omission causing damage to another may give rise to two separate civil liabilities on
the part of the offender, i.e., (1) civil liability ex delicto, under Article 100 of the Revised Penal
Code; and (2) independent civil liabilities, such as those (a) not arising from an act or omission
complained of as a felony, e.g., culpa contractual or obligations arising from law under Article
31 of the Civil Code, intentional torts under Articles 32 and 34, and culpa aquiliana under Article
2176 of the Civil Code; or (b) where the injured party is granted a right to file an action
independent and distinct from the criminal action under Article 33 of the Civil Code. Either of
these liabilities may be enforced against the offender subject to the caveat under Article 2177
of the Civil Code that the offended party cannot recover damages twice for the same act or
omission or under both causes.13
It is important to determine the nature of respondents' 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.14 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.15
The pertinent portions of the complaint read:
7. That Defendant Admer A. Pajarillo was the guard assigned and posted in the Ecology Bank –
Katipunan Branch, Quezon City, who was employed and under employment of Safeguard
Security Agency, Inc. hence there is employer-employee relationship between co-defendants.
The Safeguard Security Agency, Inc. failed to observe the diligence of a good father of a family
to prevent damage to herein plaintiffs.
8. That defendant Admer Pajarillo upon seeing Evangeline Tangco, who brought her firearm out
of her bag, suddenly without exercising necessary caution/care, and in idiotic manner, with the
use of his shotgun, fired and burst bullets upon Evangeline M. Tangco, killing her instantly. x x x
xxxx
16. That defendants, being employer and the employee are jointly and severally liable for the
death of Evangeline M. Tangco.16
Thus, a reading of respondents' complaint shows that the latter are invoking their right to
recover damages against Safeguard for their vicarious responsibility for the injury caused by
Pajarillo's act of shooting and killing Evangeline under Article 2176, Civil Code which provides:
ARTICLE 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.
The scope of Article 2176 is not limited to acts or omissions resulting from negligence. In Dulay
v. Court of Appeals,17 we held:
x x x 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:
"x x x 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 lies 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 civil action filed by respondents was not derived from the criminal liability of Pajarillo in the
criminal case but one based on culpa aquiliana or quasi-delict which is separate and distinct
from the civil liability arising from crime.18 The source of the obligation sought to be enforced
in the civil case is a quasi-delict not an act or omission punishable by law.
In Bermudez v. Melencio-Herrera,19 where the issue involved was whether the civil action filed
by plaintiff-appellants is founded on crime or on quasi-delict, we held:
x x x The trial court treated the case as an action based on a crime in view of the reservation
made by the offended party in the criminal case (Criminal Case No. 92944), also pending before
the court, to file a separate civil action. Said the trial court:
It would appear that plaintiffs instituted this action on the assumption that defendant Pontino's
negligence in the accident of May 10, 1969 constituted a quasi-delict. The Court cannot accept
the validity of that assumption. In Criminal Case No. 92944 of this Court, plaintiffs had already
appeared as complainants. While that case was pending, the offended parties reserved the right
to institute a separate civil action. If, in a criminal case, the right to file a separate civil action for
damages is reserved, such civil action is to be based on crime and not on tort. That was the
ruling in Joaquin vs. Aniceto, L-18719, Oct. 31, 1964.
We do not agree. The doctrine in the case cited by the trial court is inapplicable to the instant
case x x x.
xxxx
In cases of negligence, the injured party or his heirs has the choice between an action to enforce
the civil liability arising from crime under Article 100 of the Revised Penal Code and an action
for quasi-delict under Article 2176-2194 of the Civil Code. If a party chooses the latter, he may
hold the employer solidarily liable for the negligent act of his employee, subject to the
employer's defense of exercise of the diligence of a good father of the family.
In the case at bar, the action filed by appellant was an action for damages based on quasi-
delict. The fact that appellants reserved their right in the criminal case to file an independent
civil action did not preclude them from choosing to file a civil action for quasi-delict.20 (Emphasis
supplied)
Although the judgment in the criminal case finding Pajarillo guilty of Homicide is already final
and executory, such judgment has no relevance or importance to this case.21 It would have been
entirely different if respondents' cause of action was for damages arising from a delict, in which
case the CA is correct in finding Safeguard to be only subsidiary liable pursuant to Article 103 of
the Revised Penal Code.22
As clearly shown by the allegations in the complaint, respondents' cause of action is based
on quasi-delict. Under Article 2180 of the Civil Code, when the 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 the employer either in the selection of the servant or employee, or in the
supervision over him after selection or both. The liability of the employer under Article 2180 is
direct and immediate. Therefore, it is incumbent upon petitioners to prove that they exercised
the diligence of a good father of a family in the selection and supervision of their employee.
We must first resolve the issue of whether Pajarillo was negligent in shooting Evangeline.
The issue of negligence is factual in nature. Whether a person is negligent or not is a question
of fact, which, as a general rule, we cannot pass upon in a petition for review on certiorari, as
our jurisdiction is limited to reviewing errors of law.23 Generally, factual findings of the trial
court, affirmed by the CA, are final and conclusive and may not be reviewed on appeal. The
established exceptions are: (1) when the inference made is manifestly mistaken, absurd or
impossible; (2) when there is grave abuse of discretion; (3) when the findings are grounded
entirely on speculations, surmises or conjectures; (4) when the judgment of the CA is based on
misapprehension of facts; (5) when the findings of fact are conflicting; (6) when the CA, in
making its findings, went beyond the issues of the case and the same is contrary to the
admissions of both appellant and appellee; (7) when the findings of fact are conclusions without
citation of specific evidence on which they are based; (8) when the CA manifestly overlooked
certain relevant facts not disputed by the parties and which, if properly considered, would justify
a different conclusion; and (9) when the findings of fact of the CA are premised on the absence
of evidence and are contradicted by the evidence on record. [24]
A thorough review of the records of the case fails to show any cogent reason for us to deviate
from the factual finding of the trial court and affirmed by the CA that petitioner Pajarillo was
guilty of negligence in shooting Evangeline.
Respondents' evidence established that Evangeline's purpose in going to the bank was to renew
her time deposit.25On the other hand, Pajarillo claims that Evangeline drew a gun from her bag
and aimed the same at him, thus, acting instinctively, he shot her in self-defense.
Pajarillo testified that when Evangeline aimed the gun at him at a distance of about one meter
or one arm's length26he stepped backward, loaded the chamber of his gun and shot her.27 It is
however unimaginable that petitioner Pajarillo could still make such movements if indeed the
gun was already pointed at him. Any movement could have prompted Evangeline to pull the
trigger to shoot him.
Petitioner Pajarillo would like to justify his action in shooting Evangeline on his mere
apprehension that Evangeline will stage a bank robbery. However, such claim is befuddled by
his own testimony. Pajarillo testified that prior to the incident, he saw Evangeline roaming under
the fly over which was about 10 meters away from the bank28 and saw her talking to a man
thereat;29 that she left the man under the fly-over, crossed the street and approached the bank.
However, except for the bare testimony of Pajarillo, the records do not show that indeed
Evangeline was seen roaming near the vicinity of the bank and acting suspiciously prior to the
shooting incident. In fact, there is no evidence that Pajarillo called the attention of his head
guard or the bank's branch manager regarding his concerns or that he reported the same to the
police authorities whose outpost is just about 15 meters from the bank.
Moreover, if Evangeline was already roaming the vicinity of the bank, she could have already
apprised herself that Pajarillo, who was posted outside the bank, was armed with a shotgun;
that there were two guards inside the bank30manning the entrance door. Thus, it is quite
incredible that if she really had a companion, she would leave him under the fly-over which is
10 meters far from the bank and stage a bank robbery all by herself without a back-up. In fact,
she would have known, after surveying the area, that aiming her gun at Pajarillo would not
ensure entrance to the bank as there were guards manning the entrance door.
Evidence, to be believed, must not only proceed from the mouth of a credible witness, but it
must be credible in itself — such as the common experience and observation of mankind can
approve as probable under the circumstances. We have no test of the truth of human
testimony, except its conformity to our knowledge, observation and experience. Whatever is
repugnant to these belongs to the miraculous and is outside judicial cognizance.31
That Evangeline just wanted to deposit her gun before entering the bank and was actually in the
act of pulling her gun from her bag when petitioner Pajarillo recklessly shot her, finds support
from the contentions raised in petitioners' petition for review where they argued that when
Evangeline approached the bank, she was seen pulling a gun from inside her bag and petitioner
Pajarillo who was suddenly beset by fear and perceived the act as a dangerous threat, shot and
killed the deceased out of pure instinct;32 that the act of drawing a gun is a threatening act,
regardless of whether or not the gun was intended to be used against petitioner Pajarillo;33 that
the fear that was created in the mind of petitioner Pajarillo as he saw Evangeline Tangco drawing
a gun from her purse was suddenly very real and the former merely reacted out of pure self-
preservation.34
Considering that unlawful aggression on the part of Evangeline is absent, Pajarillo's claim of self-
defense cannot be accepted specially when such claim was uncorroborated by any separate
competent evidence other than his testimony which was even doubtful. Pajarillo's apprehension
that Evangeline will shoot him to stage a bank robbery has no basis at all. It is therefore clear
that the alleged threat of bank robbery was just a figment of Pajarillo's imagination which
caused such unfounded unlawful aggression on his part.
Petitioners argue that Evangeline was guilty of contributory negligence. Although she was a
licensed firearm holder, she had no business bringing the gun in such establishment where
people would react instinctively upon seeing the gun; that had Evangeline been prudent, she
could have warned Pajarillo before drawing the gun and did not conduct herself with suspicion
by roaming outside the vicinity of the bank; that she should not have held the gun with the
nozzle pointed at Pajarillo who mistook the act as hold up or robbery.
We are not persuaded.
As we have earlier held, Pajarillo failed to substantiate his claim that Evangeline was seen
roaming outside the vicinity of the bank and acting suspiciously prior to the shooting incident.
Evangeline's death was merely due to Pajarillo's negligence in shooting her on his imagined
threat that Evangeline will rob the bank.
Safeguard contends that it cannot be jointly held liable since it had adequately shown that it
had exercised the diligence required in the selection and supervision of its employees. It claims
that it had required the guards to undergo the necessary training and to submit the requisite
qualifications and credentials which even the RTC found to have been complied with; that the
RTC erroneously found that it did not exercise the diligence required in the supervision of its
employee. Safeguard further claims that it conducts monitoring of the activities of its personnel,
wherein supervisors are assigned to routinely check the activities of the security guards which
include among others, whether or not they are in their proper post and with proper equipment,
as well as regular evaluations of the employees' performances; that the fact that Pajarillo loaded
his firearm contrary to Safeguard's operating procedure is not sufficient basis to say that
Safeguard had failed its duty of proper supervision; that it was likewise error to say that
Safeguard was negligent in seeing to it that the procedures and policies were not properly
implemented by reason of one unfortunate event.
We are not convinced.
Article 2180 of the Civil Code 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.
xxxx
Employers shall be liable for the damages caused by their employees and household helpers
acting within the scope of their assigned tasks, even though the former are not engaged in any
business or industry.
xxxx
The responsibility treated of in this article shall cease when the persons herein mentioned prove
that they observed all the diligence of a good father of a family to prevent damage.
As the employer of Pajarillo, Safeguard is primarily and solidarily liable for the quasi-
delict committed by the former. Safeguard is presumed to be negligent in the selection and
supervision of his employee by operation of law. This presumption may be overcome only by
satisfactorily showing that the employer exercised the care and the diligence of a good father
of a family in the selection and the supervision of its employee.
In the selection of prospective employees, employers are required to examine them as to their
qualifications, experience, and service records.35 On the other hand, due diligence in the
supervision of employees includes the formulation of suitable rules and regulations for the
guidance of employees and the issuance of proper instructions intended for the protection of
the public and persons with whom the employer has relations through his or its employees and
the imposition of necessary disciplinary measures upon employees in case of breach or as may
be warranted to ensure the performance of acts indispensable to the business of and beneficial
to their employer. To this, we add that actual implementation and monitoring of consistent
compliance with said rules should be the constant concern of the employer, acting through
dependable supervisors who should regularly report on their supervisory functions.36 To
establish these factors in a trial involving the issue of vicarious liability, employers must submit
concrete proof, including documentary evidence.
We agree with the RTC's finding that Safeguard had exercised the diligence in the selection of
Pajarillo since the record shows that Pajarillo underwent a psychological and neuro-psychiatric
evaluation conducted by the St. Martin de Porres Center where no psychoses ideations were
noted, submitted a certification on the Pre-licensing training course for security guards, as well
as police and NBI clearances.
The RTC did not err in ruling that Safeguard fell short of the diligence required in the supervision
of its employee, particularly Pajarillo. In this case, while Safeguard presented Capt. James
Camero, its Director for Operations, who testified on the issuance of company rules and
regulations, such as the Guidelines of Guards Who Will Be Assigned To Banks,37 Weapons
Training,38 Safeguard Training Center Marksmanship Training Lesson
Plan,39Disciplinary/Corrective Sanctions,40 it had also been established during Camero's cross-
examination that Pajarillo was not aware of such rules and regulations.41 Notwithstanding
Camero's clarification on his re-direct examination that these company rules and regulations
are lesson plans as a basis of guidelines of the instructors during classroom instructions and not
necessary to give students copy of the same,42 the records do not show that Pajarillo had
attended such classroom instructions.
The records also failed to show that there was adequate training and continuous evaluation of
the security guard's performance. Pajarillo had only attended an in-service training on March 1,
1997 conducted by Toyota Sta. Rosa, his first assignment as security guard of Safeguard, which
was in collaboration with Safeguard. It was established that the concept of such training was
purely on security of equipments to be guarded and protection of the life of the employees.43
It had not been established that after Pajarillo's training in Toyota, Safeguard had ever
conducted further training of Pajarillo when he was later assigned to guard a bank which has a
different nature of business with that of Toyota. In fact, Pajarillo testified that being on duty in
a bank is different from being on duty in a factory since a bank is a very sensitive area.44
Moreover, considering his reactions to Evangeline's act of just depositing her firearm for
safekeeping, i.e., of immediately shooting her, confirms that there was no training or seminar
given on how to handle bank clients and on human psychology.
Furthermore, while Safeguard would like to show that there were inspectors who go around the
bank two times a day to see the daily performance of the security guards assigned therein, there
was no record ever presented of such daily inspections. In fact, if there was really such
inspection made, the alleged suspicious act of Evangeline could have been taken noticed and
reported.
Turning now to the award of damages, we find that the award of actual damages in the
amount P157,430.00 which were the expenses incurred by respondents in connection with the
burial of Evangeline were supported by receipts. The award of P50,000.00 as civil indemnity for
the death of Evangeline is likewise in order.
As to the award of moral damages, Article 2206 of the Civil Code provides that the spouse,
legitimate children and illegitimate descendants and ascendants of the deceased may demand
moral damages for mental anguish by reason of the death of the deceased. Moral damages are
awarded to enable the injured party to obtain means, diversions or amusements that will serve
to alleviate the moral suffering he/she has undergone, by reason of the defendant's culpable
action. Its award is aimed at restoration, as much as possible, of the spiritual status quo
ante; thus it must be proportionate to the suffering inflicted.45 The intensity of the pain
experienced by the relatives of the victim is proportionate to the intensity of affection for him
and bears no relation whatsoever with the wealth or means of the offender.46
In this case, respondents testified as to their moral suffering caused by Evangeline's death was
so sudden causing respondent Lauro to lose a wife and a mother to six children who were all
minors at the time of her death. In People v. Teehankee, Jr.,47 we awarded one million pesos as
moral damages to the heirs of a seventeen-year-old girl who was murdered. In Metro Manila
Transit Corporation v. Court of Appeals,48 we likewise awarded the amount of one million pesos
as moral damages to the parents of a third year high school student and who was also their
youngest child who died in a vehicular accident since the girl's death left a void in their lives.
Hence, we hold that the respondents are also entitled to the amount of one million pesos as
Evangeline's death left a void in the lives of her husband and minor children as they were
deprived of her love and care by her untimely demise.
We likewise uphold the award of exemplary damages in the amount of P300,000.00. Under
Article 2229 of the Civil Code, exemplary damages are imposed by way of example or correction
for the public good, in addition to moral, temperate, liquidated or compensatory damages.49 It
is awarded as a deterrent to socially deleterious actions. In quasi-delict, exemplary damages
may be granted if the defendant acted with gross negligence.50

Pursuant to Article 2208 of the Civil Code, attorney's fees may be recovered when, as in the
instant case, exemplary damages are awarded. Hence, we affirm the award of attorney's fees
in the amount of P30,000.00.

WHEREFORE, the petition for review is DENIED. The Decision dated July 16, 2004 of the Court
of Appeals is AFFIRMED with MODIFICATION that the civil liability of petitioner Safeguard
Security Agency, Inc. is SOLIDARYand PRIMARY under Article 2180 of the Civil Code.

SO ORDERED.
FIRST DIVISION
[G.R. No. L-67966. September 28, 1984.]
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. MARIO NAVOA, RAFAEL NAVOA, RICARDO
SITCHON, MACARIO SAGUINZA, JOHN DOE and PETER DOE, Defendants-Appellants.
The Solicitor General for Plaintiff-Appellee.
Roman Daguna & Associates Law Offices, for Defendants-Appellants.
SYLLABUS
1. REMEDIAL LAW; EVIDENCE; CREDIBILITY OF WITNESSES; TESTIMONY OF STATE WITNESS
SUPPORTED BY SUBSTANTIAL EVIDENCE AND SUFFICIENT TO SUSTAIN CONVICTION IN CASE AT
BAR. — The Appellate Court’s conclusion that the testimony of Macario Saguinza, a co-accused
turned State witness, is substantially correct was based on a careful and judicious review of the
entire record, specifically based on Exhibits "F", "G", "H" and the testimonies during the hearing
of June 9, 1977. The same is true with the Appellate Court’s conclusion that the minor
inconsistencies in the testimony of witness Baltazar de la Rosa strengthened rather than
weakened his credibility, (T.s.n., pp. 6-7, December 28, 1976; T.s.n., pp. 13-14, December 18,
1976). Even assuming that the testimony of de la Rosa is without probative value, still, the
unrebutted testimony of Saguinza is more than sufficient to sustain a conviction as it established
not only conspiracy, treachery, and evident premeditation but even the very motive of
defendants-appellants in perpetrating the crime.
2. CRIMINAL LAW; LIABILITY OF ACCUSED; DEATH EXTINGUISHES CRIMINAL LIABILITY BUT NOT
CIVIL LIABILITY. — It appears that the accused, Mario Navoa, died on June 14, 1984 due to a
cerebro-vascular attack as shown by the Death Certificate attached to the Motion for
Reconsideration. When counsel for the accused manifested that fact before the Appellate Court
on June 20, 1984, he was unaware that the latter had already certified the case to this Court,
which, in turn, promulgated its Decision on July 31, 1984 unaware of appellant Mario Navoa’s
death. The judgment of conviction will thus have to be set aside as against him. However, the
plea for extinguishment of the deceased’s civil and criminal liability is without merit. Only his
criminal liability is extinguished by his death but the civil liability remains. (People v.
Sendaydiego, Et Al., 81 SCRA 120 [1978]; People v. Tirol, Et Al., 102 SCRA 558 [1981])
R E S O L U T I O N
In this Motion for Reconsideration of the Decision of this Court promulgated on July 31, 1984,
which affirmed the judgment of conviction upon defendants-appellants Mario Navoa, Rafael
Navoa, and Ricardo Sitchon and sentenced them to suffer reclusion perpetua and to indemnify,
jointly and solidarily, the heirs of the victim, Tomas Izon, in the amount of P30,000.00, the two
assigned errors are that "the basic finding of the Intermediate Appellate Court that the
appellants shot and killed the late Tomas Izon is not supported by the evidence on record," and
"that defendant-appellant Mario Navoa’s death on June 14, 1984 properly manifested before
the Intermediate Appellate Court on June 20, 1984, had not been accorded proper legal
consideration in the Decision."cralaw virtua1aw library
The first contention is untenable. The Appellate Court’s conclusion that the testimony of
Macario Saguinza, a co-accused turned State witness, is substantially correct was based on a
careful and judicious review of the entire record, specifically based on Exhibits "F", "G", "H" and
the testimonies during the hearing of June 9, 1977. The same is true with the Appellate Court’s
conclusion that the minor inconsistencies in the testimony of witness Baltazar de la Rosa
strengthened rather than weakened his credibility. 1 Even assuming that the testimony of de la
Rosa is without probative value, still, the unrebutted testimony of Saguinza is more than
sufficient to sustain a conviction as it established not only conspiracy, treachery, and evident
premeditation, but even the very motive of defendants-appellants in perpetrating the crime.
In respect of the second contention, it appears that the accused, Mario Navoa, died on June 14,
1984 due to a cerebrovascular attack as shown by the Death Certificate attached to the Motion
for Reconsideration. When counsel for the accused manifested that fact before the Appellate
Court on June 20, 1984, he was unaware that the latter had already certified the case to this
Court, which, in turn, promulgated its Decision on July 31, 1984 unaware of appellant Mario
Navoa’s death. The judgment of conviction will thus have to be set aside as against him.
However, the plea for extinguishment of the deceased’s civil and criminal liability is without
merit. Only his criminal liability is extinguished by his death but the civil liability remains. 2
ACCORDINGLY, 1) the prayer for the acquittal of the two remaining accused is hereby denied;
2) the dispositive portion of the Decision of this Court promulgated on July 31, 1984, is hereby
modified to read as follows:jgc:chanrobles.com.ph
"WHEREFORE, we affirm the judgment of conviction imposed upon Rafael Navoa and Ricardo
Sitchon and sentence them to suffer reclusion perpetua. And since the guilt of Mario Navoa has
been established beyond reasonable doubt, his death during the pendency of this appeal
extinguishes only his criminal liability but not his civil liability, so that, his estate and the accused
Rafael Navoa and Ricardo Sitchon are hereby sentenced to indemnify, jointly and severally, the
heirs of the victim, Tomas Izon, in the amount of P30,000.00. With proportionate costs.

MELENCIO-HERRERA, J.: "SO ORDERED."

G.R. No. 72990 November 21, 1991 as it was already dark. She eventually told Cresenciano's relatives about his fate in the morning
of the following day, Sunday. 6
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
MANUEL BADEO, ESPERIDION BADEO, ROGELIO BADEO (at large) and BONIFACIO TANGPUS (at
The body of Cresenciano, who was single and 42 years old when he died, was autopsied on March 23, 1981 by Dr. Lesmes C. Lumen, the
large), defendants. MANUEL BADEO and ESPERIDION BADEO, defendants-appellants.
municipal health officer of Dagami, Leyte. The following findings appear on the medical certificate (Exh. A) issued by Dr. Lumen:

The Solicitor General for plaintiff-appellee.

1. Hacking wound on the skull, from vertex to left temporal area, 10 inches long, 1 inch wide, 2 inches deep with exposure of brain substance
Public Attorney's Office for Manuel Badeo.
2. Hacking wound, left supraclavicular area, 2.5 inches long, .5 inch wide, .5 ench deep

3. Hacking wound, extending from left subcostal area to the level of the third rib, 9.5 inches long, 2 inches wide, 1 inch deep

FERNAN, C.J.: 4. Stab wounds at the inframammary area, left

In this appeal, father and son Esperidion and Manuel Badeo, seek the reversal of the July 5, 1985 a) 2 inches long, .5 inch wide, 2 inches deep
decision of the Regional Trial Court of Leyte, Branch XV at Palo, 1 the dispositive portion of which
reads: b) .5 inch long, .5 inch wide, 2 inches deep

WHEREFORE, judgment is hereby rendered, finding the two accused Manuel Badeo and c) .5 inchlong, .5 inch wide, 2 inches deep

Esperidion Badeo guilty beyond reasonable doubt of Murder and hereby sentences said two
5. Stab wound, right iliac region, level of the umbilicus, 2.5 inches long, 2 inches wide, 1 inch deep
accused to the penalty of RECLUSION PERPETUA, to indemnify the heirs of Cresenciano
Germanes the sum of P30,000.00 without subsidiary imprisonment in case of insolvency, and 6. Longitudinal, oblique, abrasion at left iliac region, 2.5 inches long
to pay each half of the costs.
7. Hacking wound, extending from right to left lumbar areas crossing the vertebral column, 7 inches long, 1 inch wide, 2 inches deep
It appearing that the two accused Manuel Badeo and Esperidion Badeo were detained since
December 4, 1984, when they were arrested by the police authorities of Tanauan, Leyte, they 8. Hacking wound, left suprascapular region, 5 inches long, 2 inches wide, 1.5 inches deep

should be credited with the full time during which they have undergone preventive
9. Hacking wound, left shoulder area (deltoid portion), 7 inches long, 3 inches wide, 2 inches deep.
imprisonment, if they agreed voluntarily in writing to abide by the same disciplinary rules
imposed upon convicted prisoners; other wise, they shall be credited with 4/5 only of the time
during which they have undergone preventive imprisonment.
Uldarico Germanes, a nephew of Cresenciano, believed that his uncle was killed by the four because Cresenciano was instrumental in dividing
SO ORDERED. the land being tenanted by Manuel two portions. One portion was to be retained by Manuel while the other half would be tenanted by him
(Uldarico). He accompanied Cresenciano when the latter told Manuel of the new arrangement. Manuel did not like the arrangement because
According to the sole prosecution eyewitness Eñega Abrio (Iñega Abreo), at around six o'clock
according to him, he could still work on the whole area. 7
in the evening of March 21, 1981, she was walking on her way home. Cresenciano Germanes
was walking ahead of her. Near the house of Esperidion Badeo, four men attacked Cresenciano.
Being about ten arms length away, she saw Manuel Badeo hack Cresenciano at the back with a
bolo measuring around fifty-five centimeters in length. Rogelio Badeo then hacked Cresenciano Manuel Badeo admitted having hacked Cresenciano but averred that he did so in self-defense. According to him, he was at home in the

with another long bolo also at the back. Bonifacio Tangpus followed with a stab at the right afternoon of March 21, 1981 as he was cutting the grass in his home in barangay Katipunan. Later in the afternoon, he went to barangay

portion of Cresenciano's stomach, after which Esperidion Badeo hacked Cresenciano's back. Hilabago to ask for kerosene from his mother arriving there at past six o'clock in the evening.

Cresenciano fell down on his back. 2

While he was at his mother's house, his brother-in-law, Rosito Dumpang and. the latter's nephew Gabriel, passed by. They invited him to go
Cresenciano shouted after he had fallen. Noticing that Cresenciano was still alive, Rogelio came back and "finished him off." 3
During the home with them. As they were walking, they met Cresenciano Germanes behind the copra drier of Manuel's mother. Cresenciano asked him

attack, Eñega was as near to the group at seven arms length. 4 She did not go nearer because where he was going. When Manuel answered that he was going home, Cresenciano held him by his shirt and pointed a gun at him. As Manuel

she was afraid. 5 Instead, she ran home taking a shortcut through the property of a certain was about an arm's length away, he noticed that Cresenciano was reeking with the smell of tuba.

Adriano. She immediately informed her husband, Gregorio, about the incident. She told him,
While pointing the gun at him, Cresenciano threatened to kill Manuel. After telling Cresenciano that they had nothing to fight about, Manuel
however, not to go out anymore to inform Cresenciano's relatives about the hacking incident,
retreated to a coconut tree, went around it, drew a bolo and hacked Cresenciano hitting him on the head. Then he stabbed Cresenciano's
stomach. Manuel ran towards Rosito and Gabriel Dumpang who, in turn, "castigated" Cresenciano. Manuel told them to stop punishing
Cresenciano but the two did not heed his advice.
Manuel did not see Eñega Abreo when he hacked Cresenciano. Neither was his father, Esperidion, around. But he noticed that when Rosito
hacked Cresenciano, the latter's pistol fell from his hand. Manuel picked it up and later surrendered it to barangay captain Andrea Olimberio.
When Manuel surrendered to the police authorities, he did not implicate Rosito and Gabriel Dumpang because they had threatened that should
he mention their names, they would kill him. That threat was also the reason why, together with Esperidion, he transferred his residence to
Tanauan, Leyte.
Manuel stated in court that Eñega Abreo testified against him because her husband, Sabino (sic), was the first suspect in the killing of
Cresenciano as there was "bad blood" between Sabino and Cresenciano. 8
Andrea Olimberio, who was the barangay captain of barangay Katipunan when the incident occurred, corroborated Manuel's claim that he
surrendered to her. According to Andrea, at about eleven o'clock in the evening of March 21, 1981, Manuel, accompanied by his wife and sister,
came to her house and told her that he had killed Cresenciano Germanes. Manuel surrendered to her a pistol which he had taken from the
victim. Andrea knew that the pistol belonged to Cresenciano because the latter had shown it to her when he drank liquor at
store. 9
Esperidion Badeo, on the other hand, denied being at the scene when the killing occurred. He was then in the mountain in Saransang making
a kaingin on the land owned by Estelita Tangpus. Saransang was more than seven kilometers from barangay Hilabago and the distance could
only be negotiated by foot through a trail used by sled-drawing carabaos. With him in the mountain were Estelita, Rogelio Badeo and Bonifacio
Tangpus. He left the place only on March 22, 1981 when his wife fetched him because his son Manuel had wounded somebody. He went to
Hilabago but he immediately left for the mountain because he was afraid that revenge might be taken on him. 10
Estelita Rubo
corroborated Esperidion's alibi claiming that Esperidion did not leave the kaingin area even
after work. 11
Sometime in Jurte, 1981, Esperidion and Rogelio Badeo executed a joint affidavit denying participation in the killing Cresenciano. They affirmed
therein that they had been in the homestead owned by Bonifacio Tangpus since March 14, 1981 when the crime transpired. 12
Bonifacio
Tangpus did not execute any affidavit nor surrender to the authorities. Neither was he
apprehended.
For his part, Manuel executed a counter-affidavit dated June 1, 1981 stating that in the
afternoon of March 21, 1981, as he was cutting the grass in his lawn, Sagino Abrio (sic), the
husband of Iñiga (Eñega), approached him and intimated to him that he had a big problem
because Iñiga and Cresenciano were having an illicit relationship. Sagino said that the
relationship downgraded his honor because it was known to everyone their place. Sagino vowed
that something would happen to Cresenciano.
According to the same affidavit, when Manuel arrived at his mother's house to get kerosene,
his mother, Maria Badeo, Estelita Tangpuz (sic), Elena Borja, Cresencio (sic) Germanes and
Sagino Abrio were drinking liquor. As Manuel was about to leave, Germanes forced him to drink
liquor. After taking one glass, Manuel turned to leave but Germanes grabbed his shirt. Sagino
then followed Germanes, hacked him "many times" while telling Manuel that it was a problem
he could handle. Upon seeing that Germanes had a firearm tucked in his waist, Sagino ordered
Manuel to get it. Manuel and Germanes grappled for possession of the firearm and as soon as
Manuel took hold of it, Sagino told him to surrender it to the police. 13
The contents of said counter-affidavit as well as Manuel's insistence at the preliminary investigation that it was Eñega Abrio's husband who was
responsible for Cresenciano Germanes' killing were totally discredited by the investigating fiscal who noted that during Manuel's 20-day
detention, he never mentioned to the police Sagino's involvement in the crime. The investigating fiscal concluded that the rather belated facts
revealed by Manuel were
designed "to coerce or force Eñega Abrio from becoming a witness for the complainant." 14
On February 8, 1982, an information for murder was filed against Manuel, Esperidion and Rogelio Badeo and Bonifacio Tangpus. 15 They
were charged with having conspired to kill and treacherously killing Cresenciano.
On September 24,1984, the assistant provincial fiscal filed a motion for the issuance of
an alias warrant of arrest. 16Through the alias warrant of arrest issued by the court, on
December 4, 1984, Manuel Badeo and Esperidion Badeo were apprehended by the police. 17
On arraignment, Manuel pleaded guilty to the lesser offense of homicide while Esperidion pleaded not guilty to the crime charged. Manuel
invoked the mitigating circumstances of voluntary plea of guilty 18
and voluntary surrender. However, the court ruled
that a plea of guilty to a lesser offense demanded the conformity of the offended
party. 19 Inasmuch as Catalina Germanes, the mother of the victim, was not agreeable to the
plea entered by Manuel, the court considered the plea as one of not guilty.
After trial, the court rendered the aforementioned decision. Manuel and Esperidion appealed
to this Court contending that the trial court erred in not appreciating the justifying circumstance
of self-defense and the mitigating circumstance of voluntary surrender in favor of Manuel, and
in not giving weight and credence to the alibi of Esperidion.
On August 10, 1990, Esperidion died of cardio-respiratory arrest secondary to pulmonary
tuberculosis at the prison hospital in Muntinlupa, Metro Manila. 20 Inasmuch as no final
judgment had as yet been rendered, in the resolution of August 21, 1991, the case against
Esperidion was dismissed with costs de oficio and entry of judgment was made on August 22,
1991. 21
On September 17, 1991, the Solicitor General filed a motion for the reconsideration of said resolution alleging that while the criminal liability
of appellant Esperidion Badeo had been extinguished by his death pursuant to Article 89 of the Revised Penal Code, his civil liability arising from
the criminal offense subsisted in accordance with Articles 1231 and 1161 of the Civil Code in relation to Article 112 of the Revised Penal Code
and the ruling in People vs. Pancho, 145 SCRA 323. Hence, as provided for in Section 17, Rule 3 of the Rules of Court, upon proper notice, the
legal representatives of the deceased appellant should appear as substitute parties herein insofar as the deceased's civil liability for the crime
is concerned. 22
We find merit in the motion for reconsideration. Article 89 of the Revised Penal Code provides that criminal liability is totally extinguished "by
the death of the convict, as to the personal penalties; and as to pecuniary penalties, liability therefor is extinguished only when the death of
the offender occurs before final judgment." In People vs. Alison, 23
the Court, upon the recommendation of the then
Solicitor General who was required to comment on the information that appellant Alison had
died at the prison hospital, resolved that, there being no final judgment as yet, "the criminal and
civil liability (sic) of Alison was extinguished by his death."
The Alison resolution was the basis of the resolution in People vs. Satorre 24 similarly dismissing
the case against the deceased appellant. In a separate opinion in the resolution, then Associate
Justice Ramon C. Aquino stated that as to the personal penalties, criminal liability therefor is
extinguished only when the death of the offender occurs before final judgment. According to
Justice Aquino, the term " pecuniary penalties" (las pecuniarias) in Article 89 refers to fine and
costs as distinguished from " pecuniary liability" (responsabilidades pecunarias) in Article 38
which include reparation and indemnity.
As every crime gives rise to a penal or criminal action for the punishment of the guilty party, and
also to a civil action for the restitution of the thing, repair of the damage and indemnification
for the losses 25 whether the particular act or omission is done intentionally or negligently or
whether or not punishable by law, 26 subsequent decisions of the Court held that while the
criminal liability of an appellant is extinguished by his death, his civil liability subsists. 27 In such
case, the heirs of the deceased appellant are substituted as parties in the criminal case and his
estate shall answer for his civil liability. 28
In the light of the foregoing, we reconsider the resolution August 21, 1991 insofar as it considers as extinguished Esperidion Badeo's civil liability,
in order to determine whether or not such liability exist. 29
Well-settled is the rule that where the accused admits having authored the death of the victim and his defense is anchored on self-defense, he
must rely on the strength of his own evidence and not on the weakness of that of the prosecution. 30 Otherwise his conviction is
inescapable. 31
Of the three requisites of self-defense as stated in Article 11 (1) of the Revised Penal Code, namely: (a) unlawful aggression; (b) reasonable
necessity of the means employed to prevent or repel it, and (c) lack of sufficient provocation on the part of person defending himself, the first
requisite is indispensable 32
for without it, there is nothing to prevent or repel. After a close scrutiny of
the records, the Court finds that appellant Manuel Badeo failed to prove unlawful aggression.
Manuel contends that he was the object of Cresenciano's unlawful aggression because the latter
held his shirt and points a gun at him. His testimony, however, was completely uncorroborated.
He failed even to present Cresenciano's gun in evidence notwithstanding his claim that he
surrendered it to the barangay captain and later, to the police. 33 Indeed, we agree with the trial
court that if there really was a gun, Cresenciano would have used it not only against Manuel but
also against Rosito and Gabriel Dumpang. 34
Moreover, the location, number and seriousness of the wounds sustained by Cresenciano belie the claim of self-defense. 35
Of the nine
wounds found on Cresenciano's body, Manuel admitted having inflicted the two wounds which
the physician performed the autopsy considered as fatal: the hacking wound on the skull and
the stabbing wound on the stomach. 36 As such, even without the concerted assistance of the
other accused, Manuel could have nonetheless produced the lethal consequence: the death of
Cresenciano.
Manuel's assertion that the credibility of the sole prosecution eyewitness is questionable is
belated if not baseless. He insists that Eñega had an illicit relationship with the victim and that
if her testimony were true, she would not have lost time in reporting the murder to
Cresenciano's relatives. On the issue of credibility, we find no reason to depart from the settled
rule that the findings of the trial court on the credibility of witnesses should be accorded the
highest respect because it had the advantage of observing the demeanor of witnesses and to
discern if a witness was telling the truth. 37 The imputation of an illicit relationship between the
prosecution witness and the victim which was not shown other than by the counter-affidavit of
Manuel and which the investigating fiscal had even discredited, is not an acceptable evidence
insofar as proof of improper motive on the part of Eñega is concerned. 38 Neither may Eñega's
initial reluctance to denounce Manuel and his other co-accused as the killers immediately after
the commission of the crime, affect the probative value of her testimony, specifically her
positive identification of Manuel as one of the perpetrators of the crime. Usually triggered by
fear, such reluctance is common and has been judicially declared not to affect credibility. 39
However, we agree with the Solicitor General that the mitigating circumstance of voluntary surrender should be appreciated in favor of Manuel.
Ordinarily, where there has been actual arrest, the mitigating circumstance of voluntary surrender cannot be invoked. 40
While it is true
that Manuel was arrested with his father on December 4, 1981, the records show that Manuel
did surrender: first, to the barangay captain and, in the morning of March 22, 1981, to the police
of Dagami. 41 In fact, after his surrender, Manuel was detained for twenty days. 42
The killing of Crecenciano is qualified by treachery which is shown by the suddenness by which he was attacked. Under Article 248 of the Revised
Penal Code, the penalty for murder is reclusion temporal maximum to death. There being one mitigating circumstance, the penalty imposable
shall be the minimum period. 43
Applying the indeterminate sentence law, proper penalty is ten (10) years
and one (1) day of prision mayor maximum as minimum to seventeen (17) years, four (4)
months and one (1) day of reclusion temporal maximum as maximum penalty.
Anent Esperidion Badeo's civil liability, we find that there is no basis for its imposition in view of
the absence of a clear showing that he committed the crime imputed to him. 44 Esperidion could
not have been at the scene of the crime because the kaingin area where he had been staying
since January 7, 1983 until he was fetched by his wife on March 22, 1985 45 was a good five-
hour hike away through a trail. 46 Alibi is generally considered a weak defense but it assumes
importance where the evidence for the prosecution is weak and betrays concretenes on the
question of whether or not the accused committed the
crime. 47
In this case, Esperidion was implicated by the uncorroborated testimony of sole prosecution eyewitness Iñego Abrio. Her identification of
Esperidion as one of the perpetrators of the crime is, however, short of the positiveness and reliability essential for conviction. 48
As
several people committed the crime, it is probable that Abrio mistook Esperidion for another
person considering that according to her, the attack was perpetrated when it was already
getting dark. This does not however, totally discredit her entire testimony especially the portion
thereof which imputes on Manuel the authorship of the fatal hacking blows on Cresenciano.
Court may believe one part of a testimony and disbelieve another part. 49
WHEREFORE, the decision of the lower court is hereby affirmed insofar as appellant Manuel Badeo is concerned subject to the modifications
that he shall serve the penalty of ten (10) years and one (1) day of prision mayormaximum to seventeen (17) years, four (4) months and one (1)
day of reclusion temporal maximum and indemnify the heirs of Cresenciano Germanes in the amount of fifty thousand pesos (P50,000).
The resolution of August 21, 1991 is hereby reconsidered insofar as it considers as extinguished Esperidion Badeo's civil liability. However,
finding that Esperidion Badeo should be acquitted as he did not commit the crime imputed to him, no civil liability is hereby imposed on him.
No costs.
SO ORDERED.
G.R. No. 102007 September 2, 1994
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
ROGELIO BAYOTAS y CORDOVA, accused-appellant.
The Solicitor General for plaintiff-appellee.
Public Attorney's Office for accused-appellant.
ROMERO, J.:
In Criminal Case No. C-3217 filed before Branch 16, RTC Roxas City, Rogelio Bayotas y Cordova
was charged with Rape and eventually convicted thereof on June 19, 1991 in a decision penned
by Judge Manuel E. Autajay. Pending appeal of his conviction, Bayotas died on February 4, 1992
at
the National Bilibid Hospital due to cardio respiratory arrest secondary to hepatic
encephalopathy secondary to hipato carcinoma gastric malingering. Consequently, the
Supreme Court in its Resolution of May 20, 1992 dismissed the criminal aspect of the appeal.
However, it required the Solicitor General to file its comment with regard to Bayotas' civil
liability arising from his commission of the offense charged.
In his comment, the Solicitor General expressed his view that the death of accused-appellant
did not extinguish his civil liability as a result of his commission of the offense charged. The
Solicitor General, relying on the case of People v. Sendaydiego 1 insists that the appeal should
still be resolved for the purpose of reviewing his conviction by the lower court on which the civil
liability is based.
Counsel for the accused-appellant, on the other hand, opposed the view of the Solicitor General
arguing that the death of the accused while judgment of conviction is pending appeal
extinguishes both his criminal and civil penalties. In support of his position, said counsel invoked
the ruling of the Court of Appeals in People v. Castillo and Ocfemia 2 which held that the civil
obligation in a criminal case takes root in the criminal liability and, therefore, civil liability is
extinguished if accused should die before final judgment is rendered.
We are thus confronted with a single issue: Does death of the accused pending appeal of his
conviction extinguish his civil liability?
In the aforementioned case of People v. Castillo, this issue was settled in the affirmative. This
same issue posed therein was phrased thus: Does the death of Alfredo Castillo affect both his
criminal responsibility and his civil liability as a consequence of the alleged crime?
It resolved this issue thru the following disquisition:
Article 89 of the Revised Penal Code is the controlling statute. It reads, in part:
Art. 89. How criminal liability is totally extinguished. — Criminal liability is totally extinguished:
1. By the death of the convict, as to the personal penalties; and as to the pecuniary penalties
liability therefor is extinguished only when the death of the offender occurs before final
judgment;
With reference to Castillo's criminal liability, there is no question. The law is plain. Statutory
construction is unnecessary. Said liability is extinguished.
The civil liability, however, poses a problem. Such liability is extinguished only when the death
of the offender occurs before final judgment. Saddled upon us is the task of ascertaining the
legal import of the term "final judgment." Is it final judgment as contradistinguished from an
interlocutory order? Or, is it a judgment which is final and executory?
We go to the genesis of the law. The legal precept contained in Article 89 of the Revised Penal
Code heretofore transcribed is lifted from Article 132 of the Spanish El Codigo Penal de 1870
which, in part, recites:
La responsabilidad penal se extingue.
1. Por la muerte del reo en cuanto a las penas personales siempre, y respecto a las pecuniarias,
solo cuando a su fallecimiento no hubiere recaido sentencia firme.
xxx xxx xxx
The code of 1870 . . . it will be observed employs the term "sentencia firme." What is "sentencia
firme" under the old statute?
XXVIII Enciclopedia Juridica Española, p. 473, furnishes the ready answer: It says:
SENTENCIA FIRME. La sentencia que adquiere la fuerza de las definitivas por no haberse
utilizado por las partes litigantes recurso alguno contra ella dentro de los terminos y plazos
legales concedidos al efecto.
"Sentencia firme" really should be understood as one which is definite. Because, it is only when
judgment is such that, as Medina y Maranon puts it, the crime is confirmed — "en condena
determinada;" or, in the words of Groizard, the guilt of the accused becomes — "una verdad
legal." Prior thereto, should the accused die, according to Viada, "no hay legalmente, en tal caso,
ni reo, ni delito, ni responsabilidad criminal de ninguna clase." And, as Judge Kapunan well
explained, when a defendant dies before judgment becomes executory, "there cannot be any
determination by final judgment whether or not the felony upon which the civil action might
arise exists," for the simple reason that "there is no party defendant." (I Kapunan, Revised Penal
Code, Annotated, p. 421. Senator Francisco holds the same view. Francisco, Revised Penal Code,
Book One, 2nd ed., pp. 859-860)
The legal import of the term "final judgment" is similarly reflected in the Revised Penal Code.
Articles 72 and 78 of that legal body mention the term "final judgment" in the sense that it is
already enforceable. This also brings to mind Section 7, Rule 116 of the Rules of Court which
states that a judgment in a criminal case becomes final "after the lapse of the period for
perfecting an appeal or when the sentence has been partially or totally satisfied or served, or
the defendant has expressly waived in writing his right to appeal."
By fair intendment, the legal precepts and opinions here collected funnel down to one positive
conclusion: The term final judgment employed in the Revised Penal Code means judgment
beyond recall. Really, as long as a judgment has not become executory, it cannot be truthfully
said that defendant is definitely guilty of the felony charged against him.
Not that the meaning thus given to final judgment is without reason. For where, as in this case,
the right to institute a separate civil action is not reserved, the decision to be rendered must, of
necessity, cover "both the criminal and the civil aspects of the case." People
vs. Yusico (November 9, 1942), 2 O.G., No. 100, p. 964. See also: People vs. Moll, 68 Phil., 626,
634; Francisco, Criminal Procedure, 1958 ed., Vol. I, pp. 234, 236. Correctly, Judge Kapunan
observed that as "the civil action is based solely on the felony committed and of which the
offender might be found guilty, the death of the offender extinguishes the civil liability." I
Kapunan, Revised Penal Code, Annotated, supra.
Here is the situation obtaining in the present case: Castillo's criminal liability is out. His civil
liability is sought to be enforced by reason of that criminal liability. But then, if we dismiss, as
we must, the criminal action and let the civil aspect remain, we will be faced with the anomalous
situation whereby we will be called upon to clamp civil liability in a case where the source
thereof — criminal liability — does not exist. And, as was well stated in Bautista, et
al. vs. Estrella, et al., CA-G.R.
No. 19226-R, September 1, 1958, "no party can be found and held criminally liable in a civil suit,"
which solely would remain if we are to divorce it from the criminal proceeding."
This ruling of the Court of Appeals in the Castillo case 3 was adopted by the Supreme Court in
the cases of People of the Philippines v. Bonifacio Alison, et al., 4 People of the Philippines
v. Jaime Jose, et al. 5 and People of the Philippines v. Satorre 6 by dismissing the appeal in view
of the death of the accused pending appeal of said cases.
As held by then Supreme Court Justice Fernando in the Alison case:
The death of accused-appellant Bonifacio Alison having been established, and considering that
there is as yet no final judgment in view of the pendency of the appeal, the criminal and civil
liability of the said accused-appellant Alison was extinguished by his death (Art. 89, Revised
Penal Code; Reyes' Criminal Law, 1971 Rev. Ed., p. 717, citing People v. Castillo and Ofemia C.A.,
56 O.G. 4045); consequently, the case against him should be dismissed.
On the other hand, this Court in the subsequent cases of Buenaventura Belamala v. Marcelino
Polinar 7 and Lamberto Torrijos v. The Honorable Court of Appeals 8 ruled differently. In the
former, the issue decided by this court was: Whether the civil liability of one accused of physical
injuries who died before final judgment is extinguished by his demise to the extent of barring
any claim therefore against his estate. It was the contention of the administrator-appellant
therein that the death of the accused prior to final judgment extinguished all criminal and civil
liabilities resulting from the offense, in view of Article 89, paragraph 1 of the Revised Penal Code.
However, this court ruled therein:
We see no merit in the plea that the civil liability has been extinguished, in view of the provisions
of the Civil Code of the Philippines of 1950 (Rep. Act No. 386) that became operative eighteen
years after the revised Penal Code. As pointed out by the Court below, Article 33 of the Civil
Code establishes a civil action for damages on account of physical injuries, entirely separate and
distinct from the criminal action.
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.
Assuming that for lack of express reservation, Belamala's civil action for damages was to be
considered instituted together with the criminal action still, since both proceedings were
terminated without final adjudication, the civil action of the offended party under Article 33
may yet be enforced separately.
In Torrijos, the Supreme Court held that:
xxx xxx xxx
It should be stressed that the extinction of civil liability follows the extinction of the criminal
liability under Article 89, only when the civil liability arises from the criminal act as its only basis.
Stated differently, where the civil liability does not exist independently of the criminal
responsibility, the extinction of the latter by death, ipso facto extinguishes the former, provided,
of course, that death supervenes before final judgment. The said principle does not apply in
instant case wherein the civil liability springs neither solely nor originally from the crime itself
but from a civil contract of purchase and sale. (Emphasis ours)
xxx xxx xxx
In the above case, the court was convinced that the civil liability of the accused who was charged
with estafa could likewise trace its genesis to Articles 19, 20 and 21 of the Civil Code since said
accused had swindled the first and second vendees of the property subject matter of the
contract of sale. It therefore concluded: "Consequently, while the death of the accused herein
extinguished his criminal liability including fine, his civil liability based on the laws of human
relations remains."
Thus it allowed the appeal to proceed with respect to the civil liability of the accused,
notwithstanding the extinction of his criminal liability due to his death pending appeal of his
conviction.
To further justify its decision to allow the civil liability to survive, the court relied on the following
ratiocination: Since Section 21, Rule 3 of the Rules of Court 9 requires the dismissal of all money
claims against the defendant whose death occurred prior to the final judgment of the Court of
First Instance (CFI), then it can be inferred that actions for recovery of money may continue to
be heard on appeal, when the death of the defendant supervenes after the CFI had rendered
its judgment. In such case, explained this tribunal, "the name of the offended party shall be
included in the title of the case as plaintiff-appellee and the legal representative or the heirs of
the deceased-accused should be substituted as defendants-appellants."
It is, thus, evident that as jurisprudence evolved from Castillo to Torrijos, 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.
However, the Supreme Court in People v. Sendaydiego, et al. 10 departed from this long-
established principle of law. In this case, accused Sendaydiego was charged with and convicted
by the lower court of malversation thru falsification of public documents. Sendaydiego's death
supervened during the pendency of the appeal of his conviction.
This court in an unprecedented move resolved to dismiss Sendaydiego's appeal but only to the
extent of his criminal liability. His civil liability was allowed to survive although it was clear that
such claim thereon was exclusively dependent on the criminal action already extinguished. The
legal import of such decision was for the court to continue exercising appellate jurisdiction over
the entire appeal, passing upon the correctness of Sendaydiego's conviction despite dismissal
of the criminal action, for the purpose of determining if he is civilly liable. In doing so, this Court
issued a Resolution of July 8, 1977 stating thus:
The claim of complainant Province of Pangasinan for the civil liability survived Sendaydiego
because his death occurred after final judgment was rendered by the Court of First Instance of
Pangasinan, which convicted him of three complex crimes of malversation through falsification
and ordered him to indemnify the Province in the total sum of P61,048.23 (should be
P57,048.23).
The civil action for the civil liability is deemed impliedly instituted with the criminal action in the
absence of express waiver or its reservation in a separate action (Sec. 1, Rule 111 of the Rules
of Court). The civil action for the civil liability is separate and distinct from the criminal action
(People and Manuel vs. Coloma, 105 Phil. 1287; Roa vs. De la Cruz, 107 Phil. 8).
When the action is for the recovery of money and the defendant dies before final judgment in
the Court of First Instance, it shall be dismissed to be prosecuted in the manner especially
provided in Rule 87 of the Rules of Court (Sec. 21, Rule 3 of the Rules of Court).
The implication is that, if the defendant dies after a money judgment had been rendered against
him by the Court of First Instance, the action survives him. It may be continued on appeal
(Torrijos vs. Court of Appeals, L-40336, October 24, 1975; 67 SCRA 394).
The accountable public officer may still be civilly liable for the funds improperly disbursed
although he has no criminal liability (U.S. vs. Elvina, 24 Phil. 230; Philippine National Bank vs.
Tugab, 66 Phil. 583).
In view of the foregoing, notwithstanding the dismissal of the appeal of the deceased
Sendaydiego insofar as his criminal liability is concerned, the Court Resolved to continue
exercising appellate jurisdiction over his possible civil liability for the money claims of the
Province of Pangasinan arising from the alleged criminal acts complained of, as if no criminal
case had been instituted against him, thus making applicable, in determining his civil liability,
Article 30 of the Civil Code . . . and, for that purpose, his counsel is directed to inform this Court
within ten (10) days of the names and addresses of the decedent's heirs or whether or not his
estate is under administration and has a duly appointed judicial administrator. Said heirs or
administrator will be substituted for the deceased insofar as the civil action for the civil liability
is concerned (Secs. 16 and 17, Rule 3, Rules of Court).
Succeeding cases 11 raising the identical issue have maintained adherence to our ruling
in Sendaydiego; in other words, they were a reaffirmance of our abandonment of the settled
rule that a civil liability solely anchored on the criminal (civil liability ex delicto) is extinguished
upon dismissal of the entire appeal due to the demise of the accused.
But was it judicious to have abandoned this old ruling? A re-examination of our decision
in Sendaydiego impels us to revert to the old ruling.
To restate our resolution of July 8, 1977 in Sendaydiego: The resolution of the civil action
impliedly instituted in the criminal action can proceed irrespective of the latter's extinction due
to death of the accused pending appeal of his conviction, pursuant to Article 30 of the Civil Code
and Section 21, Rule 3 of the Revised Rules of Court.
Article 30 of the Civil Code provides:
When a separate civil action is brought to demand civil liability arising from a criminal offense,
and no criminal proceedings are instituted during the pendency of the civil case, a
preponderance of evidence shall likewise be sufficient to prove the act complained of.
Clearly, the text of Article 30 could not possibly lend support to the ruling in Sendaydiego.
Nowhere in its text is there a grant of authority to continue exercising appellate jurisdiction over
the accused's civil liability ex delicto when his death supervenes during appeal. What Article 30
recognizes is an alternative and separate civil action which may be brought to demand civil
liability arising from a criminal offense independently of any criminal action. In the event that
no criminal proceedings are instituted during the pendency of said civil case, the quantum of
evidence needed to prove the criminal act will have to be that which is compatible with civil
liability and that is, preponderance of evidence and not proof of guilt beyond reasonable doubt.
Citing or invoking Article 30 to justify the survival of the civil action despite extinction of the
criminal would in effect merely beg the question of whether civil liability ex delicto survives upon
extinction of the criminal action due to death of the accused during appeal of his conviction.
This is because whether asserted in
the criminal action or in a separate civil action, civil liability ex delicto is extinguished by the
death of the accused while his conviction is on appeal. Article 89 of the Revised Penal Code is
clear on this matter:
Art. 89. How criminal liability is totally extinguished. — Criminal liability is totally extinguished:
1. By the death of the convict, as to the personal penalties; and as to pecuniary penalties, liability
therefor is extinguished only when the death of the offender occurs before final judgment;
xxx xxx xxx
However, the ruling in Sendaydiego deviated from the expressed intent of Article 89. It allowed
claims for civil liability ex delicto to survive by ipso facto treating the civil action impliedly
instituted with the criminal, as one filed under Article 30, as though no criminal proceedings had
been filed but merely a separate civil action. This had the effect of converting such claims from
one which is dependent on the outcome of the criminal action to an entirely new and separate
one, the prosecution of which does not even necessitate the filing of criminal
proceedings. 12 One would be hard put to pinpoint the statutory authority for such a
transformation. It is to be borne in mind that in recovering civil liability ex delicto, the same has
perforce to be determined in the criminal action, rooted as it is in the court's pronouncement
of the guilt or innocence of the accused. This is but to render fealty to the intendment of Article
100 of the Revised Penal Code which provides that "every person criminally liable for a felony is
also civilly liable." In such cases, extinction of the criminal action due to death of the accused
pending appeal inevitably signifies the concomitant extinction of the civil liability. Mors Omnia
Solvi. Death dissolves all things.
In sum, in pursuing recovery of civil liability arising from crime, the final determination of the
criminal liability is a condition precedent to the prosecution of the civil action, such that when
the criminal action is extinguished by the demise of accused-appellant pending appeal thereof,
said civil action cannot survive. The claim for civil liability springs out of and is dependent upon
facts which, if true, would constitute a crime. Such civil liability is an inevitable consequence of
the criminal liability and is to be declared and enforced in the criminal proceeding. This is to be
distinguished from that which is contemplated under Article 30 of the Civil Code which refers
to the institution of a separate civil action that does not draw its life from a criminal proceeding.
The Sendaydiego resolution of July 8, 1977, however, failed to take note of this fundamental
distinction when it allowed the survival of the civil action for the recovery of civil liability ex
delicto by treating the same as a separate civil action referred to under Article 30. Surely, it will
take more than just a summary judicial pronouncement to authorize the conversion of said civil
action to an independent one such as that contemplated under Article 30.
Ironically however, the main decision in Sendaydiego did not apply Article 30, the resolution of
July 8, 1977 notwithstanding. Thus, it was held in the main decision:
Sendaydiego's appeal will be resolved only for the purpose of showing his criminal liability which
is the basis of the civil liability for which his estate would be liable. 13
In other words, the Court, in resolving the issue of his civil liability, concomitantly made a
determination on whether Sendaydiego, on the basis of evidenced adduced, was indeed guilty
beyond reasonable doubt of committing the offense charged. Thus, it upheld Sendaydiego's
conviction and pronounced the same as the source of his civil liability. Consequently, although
Article 30 was not applied in the final determination of Sendaydiego's civil liability, there was a
reopening of the criminal action already extinguished which served as basis for Sendaydiego's
civil liability. We reiterate: Upon death of the accused pending appeal of his conviction, the
criminal action is extinguished inasmuch as there is no longer a defendant to stand as the
accused; the civil action instituted therein for recovery of civil liability ex delicto is ipso
facto extinguished, grounded as it is on the criminal.
Section 21, Rule 3 of the Rules of Court was also invoked to serve as another basis for
the Sendaydiego resolution of July 8, 1977. In citing Sec. 21, Rule 3 of the Rules of Court, the
Court made the inference that civil actions of the type involved in Sendaydiego consist of money
claims, the recovery of which may be continued on appeal if defendant dies pending appeal of
his conviction by holding his estate liable therefor. Hence, the Court's conclusion:
"When the action is for the recovery of money" "and the defendant dies before final judgment
in the court of First Instance, it shall be dismissed to be prosecuted in the manner especially
provided" in Rule 87 of the Rules of Court (Sec. 21, Rule 3 of the Rules of Court).
The implication is that, if the defendant dies after a money judgment had been rendered against
him by the Court of First Instance, the action survives him. It may be continued on appeal.
Sadly, reliance on this provision of law is misplaced. From the standpoint of procedural law, this
course taken in Sendaydiego cannot be sanctioned. As correctly observed by Justice Regalado:
xxx xxx xxx
I do not, however, agree with the justification advanced in
both Torrijos and Sendaydiego which, relying on the provisions of Section 21, Rule 3 of the Rules
of Court, drew the strained implication therefrom that where the civil liability instituted
together with the criminal liabilities had already passed beyond the judgment of the then Court
of First Instance (now the Regional Trial Court), the Court of Appeals can continue to exercise
appellate jurisdiction thereover despite the extinguishment of the component criminal liability
of the deceased. This pronouncement, which has been followed in the Court's judgments
subsequent and consonant to Torrijos and Sendaydiego, should be set aside and abandoned as
being clearly erroneous and unjustifiable.
Said Section 21 of Rule 3 is a rule of civil procedure in ordinary civil actions. There is neither
authority nor justification for its application in criminal procedure to civil actions instituted
together with and as part of criminal actions. Nor is there any authority in law for the summary
conversion from the latter category of an ordinary civil action upon the death of the offender. .
..
Moreover, the civil action impliedly instituted in a criminal proceeding for recovery of civil
liability ex delicto can hardly be categorized as an ordinary money claim such as that referred to
in Sec. 21, Rule 3 enforceable before the estate of the deceased accused.
Ordinary money claims referred to in Section 21, Rule 3 must be viewed in light of the provisions
of Section 5, Rule 86 involving claims against the estate, which in Sendaydiego was held liable
for Sendaydiego's civil liability. "What are contemplated in Section 21 of Rule 3, in relation to
Section 5 of Rule 86, 14 are contractual money claims while the claims involved in civil liability ex
delicto may include even the restitution of personal or real property." 15 Section 5, Rule 86
provides an exclusive enumeration of what claims may be filed against the estate. These are:
funeral expenses, expenses for the last illness, judgments for money and claim arising from
contracts, expressed or implied. It is clear that money claims arising from delict do not form part
of this exclusive enumeration. Hence, there could be no legal basis in (1) treating a civil action ex
delicto as an ordinary contractual money claim referred to in Section 21, Rule 3 of the Rules of
Court and (2) allowing it to survive by filing a claim therefor before the estate of the deceased a) Law 20
accused. Rather, it should be extinguished upon extinction of the criminal action engendered
by the death of the accused pending finality of his conviction. b) Contracts

Accordingly, we rule: if the private offended party, upon extinction of the civil liability ex
delicto desires to recover damages from the same act or omission complained of, he must
subject to Section 1, Rule 111 16 (1985 Rules on Criminal Procedure as amended) file a separate
civil action, this time predicated not on the felony previously charged but on other sources of
obligation. The source of obligation upon which the separate civil action is premised determines
against whom the same shall be enforced.
If the same act or omission complained of also arises from quasi-delict or may, by provision of
law, result in an injury to person or property (real or personal), the separate civil action must be
filed against the executor or administrator 17 of the estate of the accused pursuant to Sec. 1,
Rule 87 of the Rules of Court:
Sec. 1. Actions which may and which may not be brought against 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.
This is in consonance with our ruling in Belamala 18 where we held that, in 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 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. Contractual money claims, we stressed, refers
only topurely personal obligations other than those which have their source in delict or tort.
c) Quasi-contracts
d) . . .
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. This separate civil action may
be enforced either against the executor/administrator or 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 provisions of Article 1155 21 of the Civil Code,
that should thereby avoid any apprehension on a possible privation of right by prescription. 22
Applying this set of rules to the case at bench, we hold that the death of appellant Bayotas
extinguished his criminal liability and the civil liability based solely on the act complained of, i.e.,
rape. Consequently, the appeal is hereby dismissed without qualification.
WHEREFORE, the appeal of the late Rogelio Bayotas is DISMISSED with costs de oficio.
SO ORDERED.

Conversely, if the same act or omission complained of also arises from contract, the separate
civil action must be filed against the estate of the accused, pursuant to Sec. 5, Rule 86 of the
Rules of Court.

From this lengthy disquisition, 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 accused, if the
same may also be predicated on a source of obligation other than delict. 19 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:
G.R. No. 190696 August 3, 2010
ROLITO CALANG and PHILTRANCO SERVICE ENTERPRISES, INC., Petitioners,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
RESOLUTION
BRION, J.:
We resolve the motion for reconsideration filed by the petitioners, Philtranco Service
Enterprises, Inc. (Philtranco) and Rolito Calang, to challenge our Resolution of February 17,
2010. Our assailed Resolution denied the petition for review on certiorari for failure to show
any reversible error sufficient to warrant the exercise of this Court’s discretionary appellate
jurisdiction.
Antecedent Facts
At around 2:00 p.m. of April 22, 1989, Rolito Calang was driving Philtranco Bus No. 7001, owned
by Philtranco along Daang Maharlika Highway in Barangay Lambao, Sta. Margarita, Samar when
its rear left side hit the front left portion of a Sarao jeep coming from the opposite direction. As
a result of the collision, Cresencio Pinohermoso, the jeep’s driver, lost control of the vehicle,
and bumped and killed Jose Mabansag, a bystander who was standing along the highway’s
shoulder. The jeep turned turtle three (3) times before finally stopping at about 25 meters from
the point of impact. Two of the jeep’s passengers, Armando Nablo and an unidentified woman,
were instantly killed, while the other passengers sustained serious physical injuries.
The prosecution charged Calang with multiple homicide, multiple serious physical injuries and
damage to property thru reckless imprudence before the Regional Trial Court (RTC), Branch 31,
Calbayog City. The RTC, in its decision dated May 21, 2001, found Calang guilty beyond
reasonable doubt of reckless imprudence resulting to multiple homicide, multiple physical
injuries and damage to property, and sentenced him to suffer an indeterminate penalty of thirty
days of arresto menor, as minimum, to four years and two months of prision correccional, as
maximum. The RTC ordered Calang and Philtranco, jointly and severally, to pay ₱50,000.00 as
death indemnity to the heirs of Armando; ₱50,000.00 as death indemnity to the heirs of
Mabansag; and ₱90,083.93 as actual damages to the private complainants.
The petitioners appealed the RTC decision to the Court of Appeals (CA), docketed as CA-G.R. CR
No. 25522. The CA, in its decision dated November 20, 2009, affirmed the RTC decision in toto.
The CA ruled that petitioner Calang failed to exercise due care and precaution in driving the
Philtranco bus. According to the CA, various eyewitnesses testified that the bus was traveling
fast and encroached into the opposite lane when it evaded a pushcart that was on the side of
the road. In addition, he failed to slacken his speed, despite admitting that he had already seen
the jeep coming from the opposite direction when it was still half a kilometer away. The CA
further ruled that Calang demonstrated a reckless attitude when he drove the bus, despite
knowing that it was suffering from loose compression, hence, not roadworthy.
The CA added that the RTC correctly held Philtranco jointly and severally liable with petitioner
Calang, for failing to prove that it had exercised the diligence of a good father of the family to
prevent the accident.
The petitioners filed with this Court a petition for review on certiorari. In our Resolution dated
February 17, 2010, we denied the petition for failure to sufficiently show any reversible error in
the assailed decision to warrant the exercise of this Court’s discretionary appellate jurisdiction.
The Motion for Reconsideration
In the present motion for reconsideration, the petitioners claim that there was no basis to hold
Philtranco jointly and severally liable with Calang because the former was not a party in the
criminal case (for multiple homicide with multiple serious physical injuries and damage to
property thru reckless imprudence) before the RTC.
The petitioners likewise maintain that the courts below overlooked several relevant facts,
supported by documentary exhibits, which, if considered, would have shown that Calang was
not negligent, such as the affidavit and testimony of witness Celestina Cabriga; the testimony of
witness Rodrigo Bocaycay; the traffic accident sketch and report; and the jeepney’s registration
receipt. The petitioners also insist that the jeep’s driver had the last clear chance to avoid the
collision.
We partly grant the motion.
Liability of Calang
We see no reason to overturn the lower courts’ finding on Calang’s culpability. The finding of
negligence on his part by the trial court, affirmed by the CA, is a question of fact that we cannot
pass upon without going into factual matters touching on the finding of negligence. In petitions
for review on certiorari under Rule 45 of the Revised Rules of Court, this Court is limited to
reviewing only errors of law, not of fact, unless the factual findings complained of are devoid of
support by the evidence on record, or the assailed judgment is based on a misapprehension of
facts.
Liability of Philtranco
We, however, hold that the RTC and the CA both erred in holding Philtranco jointly and severally
liable with Calang. We emphasize that Calang was charged criminally before the RTC.
Undisputedly, Philtranco was not a direct party in this case. Since the cause of action against
Calang was based on delict, both the RTC and the CA erred in holding Philtranco jointly and
severally liable with Calang, based on quasi-delict under Articles 21761 and 21802 of the Civil
Code. Articles 2176 and 2180 of the Civil Code pertain to the vicarious liability of an employer
for quasi-delicts that an employee has committed. Such provision of law does not apply to civil
liability arising from delict.
If at all, Philtranco’s liability may only be subsidiary. Article 102 of the Revised Penal Code states
the subsidiary civil liabilities of innkeepers, tavernkeepers and proprietors of establishments, as
follows:
In default of the persons criminally liable, innkeepers, tavernkeepers, and any other persons or
corporations 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 regulations shall
have been committed by them or their employees.1avvphil

Innkeepers are also subsidiary liable for the restitution of goods taken by robbery or theft within
their houses from guests lodging therein, 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 of persons unless committed by the innkeeper’s employees.

The foregoing subsidiary liability applies to employers, according to Article 103 of the Revised
Penal Code, which reads:

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.

The provisions of the Revised Penal Code on subsidiary liability – Articles 102 and 103 – are
deemed written into the judgments in cases to which they are applicable. Thus, in the dispositive
portion of its decision, the trial court need not expressly pronounce the subsidiary liability of
the employer.3 Nonetheless, before the employers’ subsidiary liability is enforced, adequate
evidence must exist establishing that (1) they are indeed the employers of the convicted
employees; (2) they are engaged in some kind of industry; (3) the crime was committed by the
employees in the discharge of their duties; and (4) the execution against the latter has not been
satisfied due to insolvency. The determination of these conditions may be done in the same
criminal action in which the employee’s liability, criminal and civil, has been pronounced, in a
hearing set for that precise purpose, with due notice to the employer, as part of the proceedings
for the execution of the judgment.4

WHEREFORE, we PARTLY GRANT the present motion. The Court of Appeals decision that
affirmed in toto the RTC decision, finding Rolito Calang guilty beyond reasonable doubt of
reckless imprudence resulting in multiple homicide, multiple serious physical injuries and
damage to property, is AFFIRMED, with the MODIFICATION that Philtranco’s liability should only
be subsidiary. No costs.

SO ORDERED.
G.R. No. L-12191 October 14, 1918
JOSE CANGCO, plaintiff-appellant,
vs.
MANILA RAILROAD CO., defendant-appellee.
Ramon Sotelo for appellant.
Kincaid & Hartigan for appellee.
FISHER, J.:
At the time of the occurrence which gave rise to this litigation the plaintiff, Jose Cangco, was in
the employment of Manila Railroad Company in the capacity of clerk, with a monthly wage of
P25. He lived in the pueblo of San Mateo, in the province of Rizal, which is located upon the line
of the defendant railroad company; and in coming daily by train to the company's office in the
city of Manila where he worked, he used a pass, supplied by the company, which entitled him
to ride upon the company's trains free of charge. Upon the occasion in question, January 20,
1915, the plaintiff arose from his seat in the second class-car where he was riding and, making,
his exit through the door, took his position upon the steps of the coach, seizing the upright
guardrail with his right hand for support.
On the side of the train where passengers alight at the San Mateo station there is a cement
platform which begins to rise with a moderate gradient some distance away from the company's
office and extends along in front of said office for a distance sufficient to cover the length of
several coaches. As the train slowed down another passenger, named Emilio Zuñiga, also an
employee of the railroad company, got off the same car, alighting safely at the point where the
platform begins to rise from the level of the ground. When the train had proceeded a little
farther the plaintiff Jose Cangco stepped off also, but one or both of his feet came in contact
with a sack of watermelons with the result that his feet slipped from under him and he fell
violently on the platform. His body at once rolled from the platform and was drawn under the
moving car, where his right arm was badly crushed and lacerated. It appears that after the
plaintiff alighted from the train the car moved forward possibly six meters before it came to a
full stop.
The accident occurred between 7 and 8 o'clock on a dark night, and as the railroad station was
lighted dimly by a single light located some distance away, objects on the platform where the
accident occurred were difficult to discern especially to a person emerging from a lighted car.
The explanation of the presence of a sack of melons on the platform where the plaintiff alighted
is found in the fact that it was the customary season for harvesting these melons and a large lot
had been brought to the station for the shipment to the market. They were contained in
numerous sacks which has been piled on the platform in a row one upon another. The testimony
shows that this row of sacks was so placed of melons and the edge of platform; and it is clear
that the fall of the plaintiff was due to the fact that his foot alighted upon one of these melons
at the moment he stepped upon the platform. His statement that he failed to see these objects
in the darkness is readily to be credited.
The plaintiff was drawn from under the car in an unconscious condition, and it appeared that
the injuries which he had received were very serious. He was therefore brought at once to a
certain hospital in the city of Manila where an examination was made and his arm was
amputated. The result of this operation was unsatisfactory, and the plaintiff was then carried to
another hospital where a second operation was performed and the member was again
amputated higher up near the shoulder. It appears in evidence that the plaintiff expended the
sum of P790.25 in the form of medical and surgical fees and for other expenses in connection
with the process of his curation.
Upon August 31, 1915, he instituted this proceeding in the Court of First Instance of the city of
Manila to recover damages of the defendant company, founding his action upon the negligence
of the servants and employees of the defendant in placing the sacks of melons upon the
platform and leaving them so placed as to be a menace to the security of passenger alighting
from the company's trains. At the hearing in the Court of First Instance, his Honor, the trial
judge, found the facts substantially as above stated, and drew therefrom his conclusion to the
effect that, although negligence was attributable to the defendant by reason of the fact that the
sacks of melons were so placed as to obstruct passengers passing to and from the cars,
nevertheless, the plaintiff himself had failed to use due caution in alighting from the coach and
was therefore precluded form recovering. Judgment was accordingly entered in favor of the
defendant company, and the plaintiff appealed.
It can not be doubted that the employees of the railroad company were guilty of negligence in
piling these sacks on the platform in the manner above stated; that their presence caused the
plaintiff to fall as he alighted from the train; and that they therefore constituted an effective
legal cause of the injuries sustained by the plaintiff. It necessarily follows that the defendant
company is liable for the damage thereby occasioned unless recovery is barred by the plaintiff's
own contributory negligence. In resolving this problem it is necessary that each of these
conceptions of liability, to-wit, the primary responsibility of the defendant company and the
contributory negligence of the plaintiff should be separately examined.
It is important to note that the foundation of the legal liability of the defendant is the contract
of carriage, and that the obligation to respond for the damage which plaintiff has suffered arises,
if at all, from the breach of that contract by reason of the failure of defendant to exercise due
care in its performance. That is to say, its liability is direct and immediate, differing essentially,
in legal viewpoint from that presumptive responsibility for the negligence of its servants,
imposed by article 1903 of the Civil Code, which can be rebutted by proof of the exercise of due
care in their selection and supervision. Article 1903 of the Civil Code is not applicable to
obligations arising ex contractu, but only to extra-contractual obligations — or to use the
technical form of expression, that article relates only to culpa aquiliana and not to culpa
contractual.
Manresa (vol. 8, p. 67) in his commentaries upon articles 1103 and 1104 of the Civil Code, clearly
points out this distinction, which was also recognized by this Court in its decision in the case of
Rakes vs. Atlantic, Gulf and Pacific Co. (7 Phil. rep., 359). In commenting upon article 1093
Manresa clearly points out the difference between "culpa, substantive and independent, which
of itself constitutes the source of an obligation between persons not formerly connected by any
legal tie" and culpa considered as an accident in the performance of an obligation already
existing . . . ."
In the Rakes case (supra) the decision of this court was made to rest squarely upon the
proposition that article 1903 of the Civil Code is not applicable to acts of negligence which
constitute the breach of a contract.
Upon this point the Court said:
The acts to which these articles [1902 and 1903 of the Civil Code] are applicable are understood
to be those not growing out of 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 article 1101, 1103, and 1104 of the same code.
(Rakes vs. Atlantic, Gulf and Pacific Co., 7 Phil. Rep., 359 at 365.)
This distinction is of the utmost importance. The liability, which, under the Spanish law, is, in
certain cases imposed upon employers with respect to damages occasioned by the negligence
of their employees to persons to whom they are not bound by contract, is not based, as in the
English Common Law, upon the principle of respondeat superior — if it were, the master would
be liable in every case and unconditionally — but upon the principle announced in article 1902
of the Civil Code, which imposes upon all persons who by their fault or negligence, do injury to
another, the obligation of making good the damage caused. One who places a powerful
automobile in the hands of a servant whom he knows to be ignorant of the method of managing
such a vehicle, is himself guilty of an act of negligence which makes him liable for all the
consequences of his imprudence. The obligation to make good the damage arises at the very
instant that the unskillful servant, while acting within the scope of his employment causes the
injury. The liability of the master is personal and direct. But, if the master has not been guilty of
any negligence whatever in the selection and direction of the servant, he is not liable for the
acts of the latter, whatever done within the scope of his employment or not, if the damage done
by the servant does not amount to a breach of the contract between the master and the person
injured.
It is not accurate to say that proof of diligence and care in the selection and control of the
servant relieves the master from liability for the latter's acts — on the contrary, that proof shows
that the responsibility has never existed. As Manresa says (vol. 8, p. 68) the liability arising from
extra-contractual culpa is always based upon a voluntary act or omission which, without willful
intent, but by mere negligence or inattention, has caused damage to another. A master who
exercises all possible care in the selection of his servant, taking into consideration the
qualifications they should possess for the discharge of the duties which it is his purpose to
confide to them, and directs them with equal diligence, thereby performs his duty to third
persons to whom he is bound by no contractual ties, and he incurs no liability whatever if, by
reason of the negligence of his servants, even within the scope of their employment, such third
person suffer damage. True it is that under article 1903 of the Civil Code the law creates
a presumption that he has been negligent in the selection or direction of his servant, but the
presumption is rebuttable and yield to proof of due care and diligence in this respect.
The supreme court of Porto Rico, in interpreting identical provisions, as found in the Porto Rico
Code, has held that these articles are applicable to cases of extra-contractual culpa exclusively.
(Carmona vs. Cuesta, 20 Porto Rico Reports, 215.)
This distinction was again made patent by this Court in its decision in the case of
Bahia vs. Litonjua and Leynes, (30 Phil. rep., 624), which was an action brought upon the theory
of the extra-contractual liability of the defendant to respond for the damage caused by the
carelessness of his employee while acting within the scope of his employment. The Court, after
citing the last paragraph of article 1903 of the Civil Code, said:
From this article two things are apparent: (1) That when an injury is caused by the negligence
of a servant or employee there instantly arises a presumption of law that there was negligence
on the part of the master or employer either in selection of the servant or employee, or in
supervision over him after the selection, or both; and (2) that that presumption is juris
tantum and not juris et de jure, and consequently, may be rebutted. It follows necessarily that
if the employer shows to the satisfaction of the court that in selection and supervision he has
exercised the care and diligence of a good father of a family, the presumption is overcome and
he is relieved from liability.
This theory bases the responsibility of the master ultimately on his own negligence and not on
that of his servant. This is the notable peculiarity of the Spanish law of negligence. It is, of course,
in striking contrast to the American doctrine that, in relations with strangers, the negligence of
the servant in conclusively the negligence of the master.
The opinion there expressed by this Court, to the effect that in case of extra-
contractual culpa based upon negligence, it is necessary that there shall have been some fault
attributable to the defendant personally, and that the last paragraph of article 1903 merely
establishes a rebuttable presumption, is in complete accord with the authoritative opinion of
Manresa, who says (vol. 12, p. 611) that the liability created by article 1903 is imposed by reason
of the breach of the duties inherent in the special relations of authority or superiority existing
between the person called upon to repair the damage and the one who, by his act or omission,
was the cause of it.
On the other hand, the liability of masters and employers for the negligent acts or omissions of
their servants or agents, when such acts or omissions cause damages which amount to the
breach of a contact, is not based upon a mere presumption of the master's negligence in their
selection or control, and proof of exercise of the utmost diligence and care in this regard does
not relieve the master of his liability for the breach of his contract.
Every legal obligation must of necessity be extra-contractual or contractual. Extra-contractual
obligation has its source in the breach or omission of those mutual duties which civilized society
imposes upon it members, or which arise from these relations, other than contractual, of certain
members of society to others, generally embraced in the concept of status. The legal rights of
each member of society constitute the measure of the corresponding legal duties, mainly
negative in character, which the existence of those rights imposes upon all other members of
society. The breach of these general duties whether due to willful intent or to mere inattention,
if productive of injury, give rise to an obligation to indemnify the injured party. The fundamental
distinction between obligations of this character and those which arise from contract, rests
upon the fact that in cases of non-contractual obligation it is the wrongful or negligent act or
omission itself which creates the vinculum juris, whereas in contractual relations
the vinculum exists independently of the breach of the voluntary duty assumed by the parties
when entering into the contractual relation.
With respect to extra-contractual obligation arising from negligence, whether of act or
omission, it is competent for the legislature to elect — and our Legislature has so elected —
whom such an obligation is imposed is morally culpable, or, on the contrary, for reasons of
public policy, to extend that liability, without regard to the lack of moral culpability, so as to
include responsibility for the negligence of those person who acts or mission are imputable, by
a legal fiction, to others who are in a position to exercise an absolute or limited control over
them. The legislature which adopted our Civil Code has elected to limit extra-contractual liability
— with certain well-defined exceptions — to cases in which moral culpability can be directly
imputed to the persons to be charged. This moral responsibility may consist in having failed to
exercise due care in the selection and control of one's agents or servants, or in the control of
persons who, by reason of their status, occupy a position of dependency with respect to the
person made liable for their conduct.
The position of a natural or juridical person who has undertaken by contract to render service
to another, is wholly different from that to which article 1903 relates. When the sources of the
obligation upon which plaintiff's cause of action depends is a negligent act or omission, the
burden of proof rests upon plaintiff to prove the negligence — if he does not his action fails. But
when the facts averred show a contractual undertaking by defendant for the benefit of plaintiff,
and it is alleged that plaintiff has failed or refused to perform the contract, it is not necessary
for plaintiff to specify in his pleadings whether the breach of the contract is due to willful fault
or to negligence on the part of the defendant, or of his servants or agents. Proof of the contract
and of its nonperformance is sufficient prima facie to warrant a recovery.
As a general rule . . . it is logical that in case of extra-contractual culpa, a suing creditor should
assume the burden of proof of its existence, as the only fact upon which his action is based;
while on the contrary, in a case of negligence which presupposes the existence of a contractual
obligation, if the creditor shows that it exists and that it has been broken, it is not necessary for
him to prove negligence. (Manresa, vol. 8, p. 71 [1907 ed., p. 76]).
As it is not necessary for the plaintiff in an action for the breach of a contract to show that the
breach was due to the negligent conduct of defendant or of his servants, even though such be
in fact the actual cause of the breach, it is obvious that proof on the part of defendant that the
negligence or omission of his servants or agents caused the breach of the contract would not
constitute a defense to the action. If the negligence of servants or agents could be invoked as a
means of discharging the liability arising from contract, the anomalous result would be that
person acting through the medium of agents or servants in the performance of their contracts,
would be in a better position than those acting in person. If one delivers a valuable watch to
watchmaker who contract to repair it, and the bailee, by a personal negligent act causes its
destruction, he is unquestionably liable. Would it be logical to free him from his liability for the
breach of his contract, which involves the duty to exercise due care in the preservation of the
watch, if he shows that it was his servant whose negligence caused the injury? If such a theory
could be accepted, juridical persons would enjoy practically complete immunity from damages
arising from the breach of their contracts if caused by negligent acts as such juridical persons
can of necessity only act through agents or servants, and it would no doubt be true in most
instances that reasonable care had been taken in selection and direction of such servants. If one
delivers securities to a banking corporation as collateral, and they are lost by reason of the
negligence of some clerk employed by the bank, would it be just and reasonable to permit the
bank to relieve itself of liability for the breach of its contract to return the collateral upon the
payment of the debt by proving that due care had been exercised in the selection and direction
of the clerk?
This distinction between culpa aquiliana, as the source of an obligation, and culpa
contractual as a mere incident to the performance of a contract has frequently been recognized
by the supreme court of Spain. (Sentencias of June 27, 1894; November 20, 1896; and
December 13, 1896.) In the decisions of November 20, 1896, it appeared that plaintiff's action
arose ex contractu, but that defendant sought to avail himself of the provisions of article 1902
of the Civil Code as a defense. The Spanish Supreme Court rejected defendant's contention,
saying:
These are not cases of injury caused, without any pre-existing obligation, by fault or negligence,
such as those to which article 1902 of the Civil Code relates, but of damages caused by the
defendant's failure to carry out the undertakings imposed by the contracts . . . .
A brief review of the earlier decision of this court involving the liability of employers for damage
done by the negligent acts of their servants will show that in no case has the court ever decided
that the negligence of the defendant's servants has been held to constitute a defense to an
action for damages for breach of contract.
In the case of Johnson vs. David (5 Phil. Rep., 663), the court held that the owner of a carriage
was not liable for the damages caused by the negligence of his driver. In that case the court
commented on the fact that no evidence had been adduced in the trial court that the defendant
had been negligent in the employment of the driver, or that he had any knowledge of his lack
of skill or carefulness.
In the case of Baer Senior & Co's Successors vs. Compania Maritima (6 Phil. Rep., 215), the
plaintiff sued the defendant for damages caused by the loss of a barge belonging to plaintiff
which was allowed to get adrift by the negligence of defendant's servants in the course of the
performance of a contract of towage. The court held, citing Manresa (vol. 8, pp. 29, 69) that if
the "obligation of the defendant grew out of a contract made between it and the plaintiff . . .
we do not think that the provisions of articles 1902 and 1903 are applicable to the case."
In the case of Chapman vs. Underwood (27 Phil. Rep., 374), plaintiff sued the defendant to
recover damages for the personal injuries caused by the negligence of defendant's chauffeur
while driving defendant's automobile in which defendant was riding at the time. The court found
that the damages were caused by the negligence of the driver of the automobile, but held that
the master was not liable, although he was present at the time, saying:
. . . unless the negligent acts of the driver are continued for a length of time as to give the owner
a reasonable opportunity to observe them and to direct the driver to desist therefrom. . . . The
act complained of must be continued in the presence of the owner for such length of time that
the owner by his acquiescence, makes the driver's acts his own.
In the case of Yamada vs. Manila Railroad Co. and Bachrach Garage & Taxicab Co. (33 Phil. Rep.,
8), it is true that the court rested its conclusion as to the liability of the defendant upon article
1903, although the facts disclosed that the injury complaint of by plaintiff constituted a breach
of the duty to him arising out of the contract of transportation. The express ground of the
decision in this case was that article 1903, in dealing with the liability of a master for the
negligent acts of his servants "makes the distinction between private individuals and public
enterprise;" that as to the latter the law creates a rebuttable presumption of negligence in the
selection or direction of servants; and that in the particular case the presumption of negligence
had not been overcome.
It is evident, therefore that in its decision Yamada case, the court treated plaintiff's action as
though founded in tort rather than as based upon the breach of the contract of carriage, and
an examination of the pleadings and of the briefs shows that the questions of law were in fact
discussed upon this theory. Viewed from the standpoint of the defendant the practical result
must have been the same in any event. The proof disclosed beyond doubt that the defendant's
servant was grossly negligent and that his negligence was the proximate cause of plaintiff's
injury. It also affirmatively appeared that defendant had been guilty of negligence in its failure
to exercise proper discretion in the direction of the servant. Defendant was, therefore, liable
for the injury suffered by plaintiff, whether the breach of the duty were to be regarded as
constituting culpa aquiliana or culpa contractual. As Manresa points out (vol. 8, pp. 29 and 69)
whether negligence occurs an incident in the course of the performance of a contractual
undertaking or its itself the source of an extra-contractual undertaking obligation, its essential
characteristics are identical. There is always an act or omission productive of damage due to
carelessness or inattention on the part of the defendant. Consequently, when the court holds
that a defendant is liable in damages for having failed to exercise due care, either directly, or in
failing to exercise proper care in the selection and direction of his servants, the practical result
is identical in either case. Therefore, it follows that it is not to be inferred, because the court
held in the Yamada case that defendant was liable for the damages negligently caused by its
servants to a person to whom it was bound by contract, and made reference to the fact that
the defendant was negligent in the selection and control of its servants, that in such a case the
court would have held that it would have been a good defense to the action, if presented
squarely upon the theory of the breach of the contract, for defendant to have proved that it did
in fact exercise care in the selection and control of the servant.
The true explanation of such cases is to be found by directing the attention to the relative
spheres of contractual and extra-contractual obligations. The field of non- contractual obligation
is much more broader than that of contractual obligations, comprising, as it does, the whole
extent of juridical human relations. These two fields, figuratively speaking, concentric; that is to
say, the mere fact that a person is bound to another by contract does not relieve him from
extra-contractual liability to such person. When such a contractual relation exists the obligor
may break the contract under such conditions that the same act which constitutes the source
of an extra-contractual obligation had no contract existed between the parties.
The contract of defendant to transport plaintiff carried with it, by implication, the duty to carry
him in safety and to provide safe means of entering and leaving its trains (civil code, article
1258). That duty, being contractual, was direct and immediate, and its non-performance could
not be excused by proof that the fault was morally imputable to defendant's servants.
The railroad company's defense involves the assumption that even granting that the negligent
conduct of its servants in placing an obstruction upon the platform was a breach of its
contractual obligation to maintain safe means of approaching and leaving its trains, the direct
and proximate cause of the injury suffered by plaintiff was his own contributory negligence in
failing to wait until the train had come to a complete stop before alighting. Under the doctrine
of comparative negligence announced in the Rakes case (supra), if the accident was caused by
plaintiff's own negligence, no liability is imposed upon defendant's negligence and plaintiff's
negligence merely contributed to his injury, the damages should be apportioned. It is, therefore,
important to ascertain if defendant was in fact guilty of negligence.
It may be admitted that had plaintiff waited until the train had come to a full stop before
alighting, the particular injury suffered by him could not have occurred. Defendant contends,
and cites many authorities in support of the contention, that it is negligence per se for a
passenger to alight from a moving train. We are not disposed to subscribe to this doctrine in its
absolute form. We are of the opinion that this proposition is too badly stated and is at variance
with the experience of every-day life. In this particular instance, that the train was barely moving
when plaintiff alighted is shown conclusively by the fact that it came to stop within six meters
from the place where he stepped from it. Thousands of person alight from trains under these
conditions every day of the year, and sustain no injury where the company has kept its platform
free from dangerous obstructions. There is no reason to believe that plaintiff would have
suffered any injury whatever in alighting as he did had it not been for defendant's negligent
failure to perform its duty to provide a safe alighting place.
We are of the opinion that the correct doctrine relating to this subject is that expressed in
Thompson's work on Negligence (vol. 3, sec. 3010) as follows:
The test by which to determine whether the passenger has been guilty of negligence in
attempting to alight from a moving railway train, is that of ordinary or reasonable care. It is to
be considered whether an ordinarily prudent person, of the age, sex and condition of the
passenger, would have acted as the passenger acted under the circumstances disclosed by the
evidence. This care has been defined to be, not the care which may or should be used by the
prudent man generally, but the care which a man of ordinary prudence would use under similar
circumstances, to avoid injury." (Thompson, Commentaries on Negligence, vol. 3, sec. 3010.)
Or, it we prefer to adopt the mode of exposition used by this court in Picart vs. Smith (37 Phil.
rep., 809), we may say that the test is this; Was there anything in the circumstances surrounding
the plaintiff at the time he alighted from the train which would have admonished a person of
average prudence that to get off the train under the conditions then existing was dangerous? If
so, the plaintiff should have desisted from alighting; and his failure so to desist was contributory recover of defendant the additional sum of P790.25 for medical attention, hospital services, and
negligence.1awph!l.net other incidental expenditures connected with the treatment of his injuries.

As the case now before us presents itself, the only fact from which a conclusion can be drawn The decision of lower court is reversed, and judgment is hereby rendered plaintiff for the sum
to the effect that plaintiff was guilty of contributory negligence is that he stepped off the car of P3,290.25, and for the costs of both instances. So ordered.
without being able to discern clearly the condition of the platform and while the train was yet
slowly moving. In considering the situation thus presented, it should not be overlooked that the Arellano, C.J., Torres, Street and Avanceña, JJ., concur.
plaintiff was, as we find, ignorant of the fact that the obstruction which was caused by the sacks
of melons piled on the platform existed; and as the defendant was bound by reason of its duty
as a public carrier to afford to its passengers facilities for safe egress from its trains, the plaintiff
had a right to assume, in the absence of some circumstance to warn him to the contrary, that
the platform was clear. The place, as we have already stated, was dark, or dimly lighted, and
this also is proof of a failure upon the part of the defendant in the performance of a duty owing
by it to the plaintiff; for if it were by any possibility concede that it had right to pile these sacks
in the path of alighting passengers, the placing of them adequately so that their presence would
be revealed.

As pertinent to the question of contributory negligence on the part of the plaintiff in this case
the following circumstances are to be noted: The company's platform was constructed upon a
level higher than that of the roadbed and the surrounding ground. The distance from the steps
of the car to the spot where the alighting passenger would place his feet on the platform was
thus reduced, thereby decreasing the risk incident to stepping off. The nature of the platform,
constructed as it was of cement material, also assured to the passenger a stable and even
surface on which to alight. Furthermore, the plaintiff was possessed of the vigor and agility of
young manhood, and it was by no means so risky for him to get off while the train was yet
moving as the same act would have been in an aged or feeble person. In determining the
question of contributory negligence in performing such act — that is to say, whether the
passenger acted prudently or recklessly — the age, sex, and physical condition of the passenger
are circumstances necessarily affecting the safety of the passenger, and should be considered.
Women, it has been observed, as a general rule are less capable than men of alighting with
safety under such conditions, as the nature of their wearing apparel obstructs the free
movement of the limbs. Again, it may be noted that the place was perfectly familiar to the
plaintiff as it was his daily custom to get on and of the train at this station. There could,
therefore, be no uncertainty in his mind with regard either to the length of the step which he
was required to take or the character of the platform where he was alighting. Our conclusion is
that the conduct of the plaintiff in undertaking to alight while the train was yet slightly under
way was not characterized by imprudence and that therefore he was not guilty of contributory
negligence.

The evidence shows that the plaintiff, at the time of the accident, was earning P25 a month as
a copyist clerk, and that the injuries he has suffered have permanently disabled him from
continuing that employment. Defendant has not shown that any other gainful occupation is
open to plaintiff. His expectancy of life, according to the standard mortality tables, is
approximately thirty-three years. We are of the opinion that a fair compensation for the damage
suffered by him for his permanent disability is the sum of P2,500, and that he is also entitled to
G.R. No. L-21438 September 28, 1966
AIR FRANCE, petitioner,
vs.
RAFAEL CARRASCOSO and the HONORABLE COURT OF APPEALS, respondents.
Lichauco, Picazo and Agcaoili for petitioner.
Bengzon Villegas and Zarraga for respondent R. Carrascoso.
SANCHEZ, J.:
The Court of First Instance of Manila 1 sentenced petitioner to pay respondent Rafael Carrascoso
P25,000.00 by way of moral damages; P10,000.00 as exemplary damages; P393.20 representing
the difference in fare between first class and tourist class for the portion of the trip Bangkok-
Rome, these various amounts with interest at the legal rate, from the date of the filing of the
complaint until paid; plus P3,000.00 for attorneys' fees; and the costs of suit.
On appeal,2 the Court of Appeals slightly reduced the amount of refund on Carrascoso's plane
ticket from P393.20 to P383.10, and voted to affirm the appealed decision "in all other
respects", with costs against petitioner.
The case is now before us for review on certiorari.
The facts declared by the Court of Appeals as " fully supported by the evidence of record", are:
Plaintiff, a civil engineer, was a member of a group of 48 Filipino pilgrims that left Manila for
Lourdes on March 30, 1958.
On March 28, 1958, the defendant, Air France, through its authorized agent, Philippine Air Lines,
Inc., issued to plaintiff a "first class" round trip airplane ticket from Manila to Rome. From Manila
to Bangkok, plaintiff travelled in "first class", but at Bangkok, the Manager of the defendant
airline forced plaintiff to vacate the "first class" seat that he was occupying because, in the words
of the witness Ernesto G. Cuento, there was a "white man", who, the Manager alleged, had a
"better right" to the seat. When asked to vacate his "first class" seat, the plaintiff, as was to be
expected, refused, and told defendant's Manager that his seat would be taken over his dead
body; a commotion ensued, and, according to said Ernesto G. Cuento, "many of the Filipino
passengers got nervous in the tourist class; when they found out that Mr. Carrascoso was having
a hot discussion with the white man [manager], they came all across to Mr. Carrascoso and
pacified Mr. Carrascoso to give his seat to the white man" (Transcript, p. 12, Hearing of May 26,
1959); and plaintiff reluctantly gave his "first class" seat in the plane.3
1. The trust of the relief petitioner now seeks is that we review "all the findings" 4 of respondent
Court of Appeals. Petitioner charges that respondent court failed to make complete findings of
fact on all the issues properly laid before it. We are asked to consider facts favorable to
petitioner, and then, to overturn the appellate court's decision.
Coming into focus is the constitutional mandate that "No decision shall be rendered by any court
of record without expressing therein clearly and distinctly the facts and the law on which it is
based". 5 This is echoed in the statutory demand that a judgment determining the merits of the
case shall state "clearly and distinctly the facts and the law on which it is based"; 6 and that
"Every decision of the Court of Appeals shall contain complete findings of fact on all issues
properly raised before it". 7
A decision with absolutely nothing to support it is a nullity. It is open to direct attack. 8 The law,
however, solely insists that a decision state the "essential ultimate facts" upon which the court's
conclusion is drawn. 9 A court of justice is not hidebound to write in its decision every bit and
piece of evidence 10 presented by one party and the other upon the issues raised. Neither is it
to be burdened with the obligation "to specify in the sentence the facts" which a party
"considered as proved". 11 This is but a part of the mental process from which the Court draws
the essential ultimate facts. A decision is not to be so clogged with details such that prolixity, if
not confusion, may result. So long as the decision of the Court of Appeals contains the necessary
facts to warrant its conclusions, it is no error for said court to withhold therefrom "any specific
finding of facts with respect to the evidence for the defense". Because as this Court well
observed, "There is no law that so requires". 12 Indeed, "the mere failure to specify (in the
decision) the contentions of the appellant and the reasons for refusing to believe them is not
sufficient to hold the same contrary to the requirements of the provisions of law and the
Constitution". It is in this setting that in Manigque, it was held that the mere fact that the
findings "were based entirely on the evidence for the prosecution without taking into
consideration or even mentioning the appellant's side in the controversy as shown by his own
testimony", would not vitiate the judgment. 13 If the court did not recite in the decision the
testimony of each witness for, or each item of evidence presented by, the defeated party, it
does not mean that the court has overlooked such testimony or such item of evidence. 14 At any
rate, the legal presumptions are that official duty has been regularly performed, and that all the
matters within an issue in a case were laid before the court and passed upon by it. 15
Findings of fact, which the Court of Appeals is required to make, maybe defined as "the written
statement of the ultimate facts as found by the court ... and essential to support the decision
and judgment rendered thereon". 16They consist of the court's "conclusions" with respect to the
determinative facts in issue". 17 A question of law, upon the other hand, has been declared as
"one which does not call for an examination of the probative value of the evidence presented
by the parties." 18
2. By statute, "only questions of law may be raised" in an appeal by certiorari from a judgment
of the Court of Appeals. 19 That judgment is conclusive as to the facts. It is not appropriately the
business of this Court to alter the facts or to review the questions of fact. 20
With these guideposts, we now face the problem of whether the findings of fact of the Court of
Appeals support its judgment.
3. Was Carrascoso entitled to the first class seat he claims?
It is conceded in all quarters that on March 28, 1958 he paid to and received from petitioner a
first class ticket. But petitioner asserts that said ticket did not represent the true and complete
intent and agreement of the parties; that said respondent knew that he did not have confirmed
reservations for first class on any specific flight, although he had tourist class protection; that,
accordingly, the issuance of a first class ticket was no guarantee that he would have a first class
ride, but that such would depend upon the availability of first class seats.
These are matters which petitioner has thoroughly presented and discussed in its brief before
the Court of Appeals under its third assignment of error, which reads: "The trial court erred in
finding that plaintiff had confirmed reservations for, and a right to, first class seats on the
"definite" segments of his journey, particularly that from Saigon to Beirut". 21
And, the Court of Appeals disposed of this contention thus:
Defendant seems to capitalize on the argument that the issuance of a first-class ticket was no
guarantee that the passenger to whom the same had been issued, would be accommodated in
the first-class compartment, for as in the case of plaintiff he had yet to make arrangements
upon arrival at every station for the necessary first-class reservation. We are not impressed by
such a reasoning. We cannot understand how a reputable firm like defendant airplane company
could have the indiscretion to give out tickets it never meant to honor at all. It received the
corresponding amount in payment of first-class tickets and yet it allowed the passenger to be
at the mercy of its employees. It is more in keeping with the ordinary course of business that
the company should know whether or riot the tickets it issues are to be honored or not.22
Not that the Court of Appeals is alone. The trial court similarly disposed of petitioner's
contention, thus:
On the fact that plaintiff paid for, and was issued a "First class" ticket, there can be no question.
Apart from his testimony, see plaintiff's Exhibits "A", "A-1", "B", "B-1," "B-2", "C" and "C-1", and
defendant's own witness, Rafael Altonaga, confirmed plaintiff's testimony and testified as
follows:
Q. In these tickets there are marks "O.K." From what you know, what does this OK mean?
A. That the space is confirmed.
Q. Confirmed for first class?
A. Yes, "first class". (Transcript, p. 169)
xxx xxx xxx
Defendant tried to prove by the testimony of its witnesses Luis Zaldariaga and Rafael Altonaga
that although plaintiff paid for, and was issued a "first class" airplane ticket, the ticket was
subject to confirmation in Hongkong. The court cannot give credit to the testimony of said
witnesses. Oral evidence cannot prevail over written evidence, and plaintiff's Exhibits "A", "A-l",
"B", "B-l", "C" and "C-1" belie the testimony of said witnesses, and clearly show that the plaintiff
was issued, and paid for, a first class ticket without any reservation whatever.
Furthermore, as hereinabove shown, defendant's own witness Rafael Altonaga testified that the
reservation for a "first class" accommodation for the plaintiff was confirmed. The court cannot
believe that after such confirmation defendant had a verbal understanding with plaintiff that
the "first class" ticket issued to him by defendant would be subject to confirmation in
Hongkong. 23
We have heretofore adverted to the fact that except for a slight difference of a few pesos in the
amount refunded on Carrascoso's ticket, the decision of the Court of First Instance was affirmed
by the Court of Appeals in all other respects. We hold the view that such a judgment of
affirmance has merged the judgment of the lower court. 24Implicit in that affirmance is a
determination by the Court of Appeals that the proceeding in the Court of First Instance was
free from prejudicial error and "all questions raised by the assignments of error and all questions
that might have been raised are to be regarded as finally adjudicated against the appellant". So
also, the judgment affirmed "must be regarded as free from all error". 25 We reached this policy
construction because nothing in the decision of the Court of Appeals on this point would suggest
that its findings of fact are in any way at war with those of the trial court. Nor was said affirmance
by the Court of Appeals upon a ground or grounds different from those which were made the
basis of the conclusions of the trial court. 26
If, as petitioner underscores, a first-class-ticket holder is not entitled to a first class seat,
notwithstanding the fact that seat availability in specific flights is therein confirmed, then an air
passenger is placed in the hollow of the hands of an airline. What security then can a passenger
have? It will always be an easy matter for an airline aided by its employees, to strike out the
very stipulations in the ticket, and say that there was a verbal agreement to the contrary. What
if the passenger had a schedule to fulfill? We have long learned that, as a rule, a written
document speaks a uniform language; that spoken word could be notoriously unreliable. If only
to achieve stability in the relations between passenger and air carrier, adherence to the ticket
so issued is desirable. Such is the case here. The lower courts refused to believe the oral
evidence intended to defeat the covenants in the ticket.
The foregoing are the considerations which point to the conclusion that there are facts upon
which the Court of Appeals predicated the finding that respondent Carrascoso had a first class
ticket and was entitled to a first class seat at Bangkok, which is a stopover in the Saigon to Beirut
leg of the flight. 27 We perceive no "welter of distortions by the Court of Appeals of petitioner's
statement of its position", as charged by petitioner. 28 Nor do we subscribe to petitioner's
accusation that respondent Carrascoso "surreptitiously took a first class seat to provoke an
issue". 29And this because, as petitioner states, Carrascoso went to see the Manager at his office
in Bangkok "to confirm my seat and because from Saigon I was told again to see the
Manager". 30 Why, then, was he allowed to take a first class seat in the plane at Bangkok, if he
had no seat? Or, if another had a better right to the seat?
4. Petitioner assails respondent court's award of moral damages. Petitioner's trenchant claim is
that Carrascoso's action is planted upon breach of contract; that to authorize an award for moral
damages there must be an averment of fraud or bad faith;31 and that the decision of the Court
of Appeals fails to make a finding of bad faith. The pivotal allegations in the complaint bearing
on this issue are:
3. That ... plaintiff entered into a contract of air carriage with the Philippine Air Lines for a
valuable consideration, the latter acting as general agents for and in behalf of the defendant,
under which said contract, plaintiff was entitled to, as defendant agreed to furnish plaintiff, First
Class passage on defendant's plane during the entire duration of plaintiff's tour of Europe with
Hongkong as starting point up to and until plaintiff's return trip to Manila, ... .
4. That, during the first two legs of the trip from Hongkong to Saigon and from Saigon to
Bangkok, defendant furnished to the plaintiff First Class accommodation but only after
protestations, arguments and/or insistence were made by the plaintiff with defendant's
employees.
5. That finally, defendant failed to provide First Class passage, but instead furnished plaintiff
only Tourist Class accommodations from Bangkok to Teheran and/or Casablanca, ... the plaintiff
has been compelled by defendant's employees to leave the First Class accommodation berths
at Bangkok after he was already seated.
6. That consequently, the plaintiff, desiring no repetition of the inconvenience and
embarrassments brought by defendant's breach of contract was forced to take a Pan American
World Airways plane on his return trip from Madrid to Manila.32
xxx xxx xxx
2. That likewise, as a result of defendant's failure to furnish First Class accommodations
aforesaid, plaintiff suffered inconveniences, embarrassments, and humiliations, thereby
causing plaintiff mental anguish, serious anxiety, wounded feelings, social humiliation, and the
like injury, resulting in moral damages in the amount of P30,000.00. 33
xxx xxx xxx
The foregoing, in our opinion, substantially aver: First, That there was a contract to furnish
plaintiff a first class passage covering, amongst others, the Bangkok-Teheran leg; Second, That
said contract was breached when petitioner failed to furnish first class transportation at
Bangkok; and Third, that there was bad faith when petitioner's employee compelled Carrascoso
to leave his first class accommodation berth "after he was already, seated" and to take a seat in
the tourist class, by reason of which he suffered inconvenience, embarrassments and
humiliations, thereby causing him mental anguish, serious anxiety, wounded feelings and social
humiliation, resulting in moral damages. It is true that there is no specific mention of the
term bad faith in the complaint. But, the inference of bad faith is there, it may be drawn from
the facts and circumstances set forth therein. 34 The contract was averred to establish the
relation between the parties. But the stress of the action is put on wrongful expulsion.
Quite apart from the foregoing is that (a) right the start of the trial, respondent's counsel placed
petitioner on guard on what Carrascoso intended to prove: That while sitting in the plane in
Bangkok, Carrascoso was ousted by petitioner's manager who gave his seat to a white
man; 35 and (b) evidence of bad faith in the fulfillment of the contract was presented without
objection on the part of the petitioner. It is, therefore, unnecessary to inquire as to whether or
not there is sufficient averment in the complaint to justify an award for moral damages.
Deficiency in the complaint, if any, was cured by the evidence. An amendment thereof to
conform to the evidence is not even required. 36 On the question of bad faith, the Court of
Appeals declared:
That the plaintiff was forced out of his seat in the first class compartment of the plane belonging
to the defendant Air France while at Bangkok, and was transferred to the tourist class not only
without his consent but against his will, has been sufficiently established by plaintiff in his
testimony before the court, corroborated by the corresponding entry made by the purser of the
plane in his notebook which notation reads as follows:
"First-class passenger was forced to go to the tourist class against his will, and that the captain
refused to intervene",
and by the testimony of an eye-witness, Ernesto G. Cuento, who was a co-passenger. The
captain of the plane who was asked by the manager of defendant company at Bangkok to
intervene even refused to do so. It is noteworthy that no one on behalf of defendant ever
contradicted or denied this evidence for the plaintiff. It could have been easy for defendant to
present its manager at Bangkok to testify at the trial of the case, or yet to secure his disposition;
but defendant did neither. 37
The Court of appeals further stated —
Neither is there evidence as to whether or not a prior reservation was made by the white man.
Hence, if the employees of the defendant at Bangkok sold a first-class ticket to him when all the
seats had already been taken, surely the plaintiff should not have been picked out as the one to
suffer the consequences and to be subjected to the humiliation and indignity of being ejected
from his seat in the presence of others. Instead of explaining to the white man the improvidence
committed by defendant's employees, the manager adopted the more drastic step of ousting
the plaintiff who was then safely ensconsced in his rightful seat. We are strengthened in our
belief that this probably was what happened there, by the testimony of defendant's witness
Rafael Altonaga who, when asked to explain the meaning of the letters "O.K." appearing on the
tickets of plaintiff, said "that the space is confirmed for first class. Likewise, Zenaida Faustino,
another witness for defendant, who was the chief of the Reservation Office of defendant,
testified as follows:
"Q How does the person in the ticket-issuing office know what reservation the passenger has
arranged with you?
A They call us up by phone and ask for the confirmation." (t.s.n., p. 247, June 19, 1959)
In this connection, we quote with approval what the trial Judge has said on this point:
Why did the, using the words of witness Ernesto G. Cuento, "white man" have a "better right"
to the seat occupied by Mr. Carrascoso? The record is silent. The defendant airline did not prove
"any better", nay, any right on the part of the "white man" to the "First class" seat that the
plaintiff was occupying and for which he paid and was issued a corresponding "first class" ticket.
If there was a justified reason for the action of the defendant's Manager in Bangkok, the
defendant could have easily proven it by having taken the testimony of the said Manager by
deposition, but defendant did not do so; the presumption is that evidence willfully suppressed
would be adverse if produced [Sec. 69, par (e), Rules of Court]; and, under the circumstances,
the Court is constrained to find, as it does find, that the Manager of the defendant airline in
Bangkok not merely asked but threatened the plaintiff to throw him out of the plane if he did
not give up his "first class" seat because the said Manager wanted to accommodate, using the
words of the witness Ernesto G. Cuento, the "white man".38
It is really correct to say that the Court of Appeals in the quoted portion first transcribed did not
use the term "bad faith". But can it be doubted that the recital of facts therein points to bad
faith? The manager not only prevented Carrascoso from enjoying his right to a first class seat;
worse, he imposed his arbitrary will; he forcibly ejected him from his seat, made him suffer the
humiliation of having to go to the tourist class compartment - just to give way to another
passenger whose right thereto has not been established. Certainly, this is bad faith. Unless, of
course, bad faith has assumed a meaning different from what is understood in law. For, "bad
faith" contemplates a "state of mind affirmatively operating with furtive design or with some
motive of self-interest or will or for ulterior purpose." 39
And if the foregoing were not yet sufficient, there is the express finding of bad faith in the
judgment of the Court of First Instance, thus:
The evidence shows that the defendant violated its contract of transportation with plaintiff in
bad faith, with the aggravating circumstances that defendant's Manager in Bangkok went to the
extent of threatening the plaintiff in the presence of many passengers to have him thrown out
of the airplane to give the "first class" seat that he was occupying to, again using the words of
the witness Ernesto G. Cuento, a "white man" whom he (defendant's Manager) wished to
accommodate, and the defendant has not proven that this "white man" had any "better right"
to occupy the "first class" seat that the plaintiff was occupying, duly paid for, and for which the
corresponding "first class" ticket was issued by the defendant to him.40
5. The responsibility of an employer for the tortious act of its employees need not be essayed.
It is well settled in law. 41 For the willful malevolent act of petitioner's manager, petitioner, his
employer, must answer. Article 21 of the Civil Code says:
ART. 21. Any person who willfully causes loss or injury to another in a manner that is contrary
to morals, good customs or public policy shall compensate the latter for the damage.
In parallel circumstances, we applied the foregoing legal precept; and, we held that upon the
provisions of Article 2219 (10), Civil Code, moral damages are recoverable. 42
6. A contract to transport passengers is quite different in kind and degree from any other
contractual relation. 43 And this, because of the relation which an air-carrier sustains with the
public. Its business is mainly with the travelling public. It invites people to avail of the comforts
and advantages it offers. The contract of air carriage, therefore, generates a relation attended
with a public duty. Neglect or malfeasance of the carrier's employees, naturally, could give
ground for an action for damages.
Passengers do not contract merely for transportation. They have a right to be treated by the
carrier's employees with kindness, respect, courtesy and due consideration. They are entitled
to be protected against personal misconduct, injurious language, indignities and abuses from
such employees. So it is, that any rule or discourteous conduct on the part of employees towards
a passenger gives the latter an action for damages against the carrier. 44
Thus, "Where a steamship company 45 had accepted a passenger's check, it was a breach of
contract and a tort, giving a right of action for its agent in the presence of third persons to falsely
notify her that the check was worthless and demand payment under threat of ejection, though
the language used was not insulting and she was not ejected." 46 And this, because, although
the relation of passenger and carrier is "contractual both in origin and nature" nevertheless "the
act that breaks the contract may be also a tort". 47 And in another case, "Where a passenger on
a railroad train, when the conductor came to collect his fare tendered him the cash fare to a
point where the train was scheduled not to stop, and told him that as soon as the train reached
such point he would pay the cash fare from that point to destination, there was nothing in the
conduct of the passenger which justified the conductor in using insulting language to him, as by
calling him a lunatic," 48 and the Supreme Court of South Carolina there held the carrier liable
for the mental suffering of said passenger.1awphîl.nèt
Petitioner's contract with Carrascoso is one attended with public duty. The stress of
Carrascoso's action as we have said, is placed upon his wrongful expulsion. This is a violation of
public duty by the petitioner air carrier — a case of quasi-delict. Damages are proper.
7. Petitioner draws our attention to respondent Carrascoso's testimony, thus —
Q You mentioned about an attendant. Who is that attendant and purser?
A When we left already — that was already in the trip — I could not help it. So one of the flight
attendants approached me and requested from me my ticket and I said, What for? and she said,
"We will note that you transferred to the tourist class". I said, "Nothing of that kind. That is
tantamount to accepting my transfer." And I also said, "You are not going to note anything there
because I am protesting to this transfer".
Q Was she able to note it?
A No, because I did not give my ticket.
Q About that purser?
A Well, the seats there are so close that you feel uncomfortable and you don't have enough leg
room, I stood up and I went to the pantry that was next to me and the purser was there. He told
me, "I have recorded the incident in my notebook." He read it and translated it to me — because
it was recorded in French — "First class passenger was forced to go to the tourist class against
his will, and that the captain refused to intervene."
Mr. VALTE —
I move to strike out the last part of the testimony of the witness because the best evidence
would be the notes. Your Honor.
COURT —
I will allow that as part of his testimony. 49
Petitioner charges that the finding of the Court of Appeals that the purser made an entry in his
notebook reading "First class passenger was forced to go to the tourist class against his will, and
that the captain refused to intervene" is predicated upon evidence [Carrascoso's testimony
above] which is incompetent. We do not think so. The subject of inquiry is not the entry, but
the ouster incident. Testimony on the entry does not come within the proscription of the best
evidence rule. Such testimony is admissible. 49a

Besides, from a reading of the transcript just quoted, when the dialogue happened, the impact
of the startling occurrence was still fresh and continued to be felt. The excitement had not as
yet died down. Statements then, in this environment, are admissible as part of the res
gestae. 50 For, they grow "out of the nervous excitement and mental and physical condition of
the declarant". 51 The utterance of the purser regarding his entry in the notebook was
spontaneous, and related to the circumstances of the ouster incident. Its trustworthiness has
been guaranteed. 52 It thus escapes the operation of the hearsay rule. It forms part of the res
gestae.

At all events, the entry was made outside the Philippines. And, by an employee of petitioner. It
would have been an easy matter for petitioner to have contradicted Carrascoso's testimony. If
it were really true that no such entry was made, the deposition of the purser could have cleared
up the matter.

We, therefore, hold that the transcribed testimony of Carrascoso is admissible in evidence.

8. Exemplary damages are well awarded. The Civil Code gives the court ample power to grant
exemplary damages — in contracts and quasi- contracts. The only condition is that defendant
should have "acted in a wanton, fraudulent, reckless, oppressive, or malevolent manner." 53 The
manner of ejectment of respondent Carrascoso from his first class seat fits into this legal
precept. And this, in addition to moral damages.54

9. The right to attorney's fees is fully established. The grant of exemplary damages justifies a
similar judgment for attorneys' fees. The least that can be said is that the courts below felt that
it is but just and equitable that attorneys' fees be given. 55 We do not intend to break faith with
the tradition that discretion well exercised — as it was here — should not be disturbed.

10. Questioned as excessive are the amounts decreed by both the trial court and the Court of
Appeals, thus: P25,000.00 as moral damages; P10,000.00, by way of exemplary damages, and
P3,000.00 as attorneys' fees. The task of fixing these amounts is primarily with the trial
court. 56 The Court of Appeals did not interfere with the same. The dictates of good sense
suggest that we give our imprimatur thereto. Because, the facts and circumstances point to the
reasonableness thereof.57

On balance, we say that the judgment of the Court of Appeals does not suffer from reversible
error. We accordingly vote to affirm the same. Costs against petitioner. So ordered.
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. 145804 February 6, 2003
LIGHT RAIL TRANSIT AUTHORITY & RODOLFO ROMAN, petitioners,
vs.
MARJORIE NAVIDAD, Heirs of the Late NICANOR NAVIDAD & PRUDENT SECURITY
AGENCY, respondents.
DECISION
VITUG, J.:
The case before the Court is an appeal from the decision and resolution of the Court of Appeals,
promulgated on 27 April 2000 and 10 October 2000, respectively, in CA-G.R. CV No. 60720,
entitled "Marjorie Navidad and Heirs of the Late Nicanor Navidad vs. Rodolfo Roman, et. al.,"
which has modified the decision of 11 August 1998 of the Regional Trial Court, Branch 266, Pasig
City, exonerating Prudent Security Agency (Prudent) from liability and finding Light Rail Transit
Authority (LRTA) and Rodolfo Roman liable for damages on account of the death of Nicanor
Navidad.
On 14 October 1993, about half an hour past seven o’clock in the evening, Nicanor Navidad,
then drunk, entered the EDSA LRT station after purchasing a "token" (representing payment of
the fare). While Navidad was standing on the platform near the LRT tracks, Junelito Escartin, the
security guard assigned to the area approached Navidad. A misunderstanding or an altercation
between the two apparently ensued that led to a fist fight. No evidence, however, was adduced
to indicate how the fight started or who, between the two, delivered the first blow or how
Navidad later fell on the LRT tracks. At the exact moment that Navidad fell, an LRT train,
operated by petitioner Rodolfo Roman, was coming in. Navidad was struck by the moving train,
and he was killed instantaneously.
On 08 December 1994, the widow of Nicanor, herein respondent Marjorie Navidad, along with
her children, filed a complaint for damages against Junelito Escartin, Rodolfo Roman, the LRTA,
the Metro Transit Organization, Inc. (Metro Transit), and Prudent for the death of her husband.
LRTA and Roman filed a counterclaim against Navidad and a cross-claim against Escartin and
Prudent. Prudent, in its answer, denied liability and averred that it had exercised due diligence
in the selection and supervision of its security guards.
The LRTA and Roman presented their evidence while Prudent and Escartin, instead of
presenting evidence, filed a demurrer contending that Navidad had failed to prove that Escartin
was negligent in his assigned task. On 11 August 1998, the trial court rendered its decision; it
adjudged:
"WHEREFORE, judgment is hereby rendered in favor of the plaintiffs and against the defendants
Prudent Security and Junelito Escartin ordering the latter to pay jointly and severally the
plaintiffs the following:
"a) 1) Actual damages of P44,830.00;
2) Compensatory damages of P443,520.00;
3) Indemnity for the death of Nicanor Navidad in the sum of P50,000.00;
"b) Moral damages of P50,000.00;
"c) Attorney’s fees of P20,000;
"d) Costs of suit.
"The complaint against defendants LRTA and Rodolfo Roman are dismissed for lack of merit.
"The compulsory counterclaim of LRTA and Roman are likewise dismissed."1
Prudent appealed to the Court of Appeals. On 27 August 2000, the appellate court promulgated
its now assailed decision exonerating Prudent from any liability for the death of Nicanor Navidad
and, instead, holding the LRTA and Roman jointly and severally liable thusly:
"WHEREFORE, the assailed judgment is hereby MODIFIED, by exonerating the appellants from
any liability for the death of Nicanor Navidad, Jr. Instead, appellees Rodolfo Roman and the Light
Rail Transit Authority (LRTA) are held liable for his death and are hereby directed to pay jointly
and severally to the plaintiffs-appellees, the following amounts:
a) P44,830.00 as actual damages;
b) P50,000.00 as nominal damages;
c) P50,000.00 as moral damages;
d) P50,000.00 as indemnity for the death of the deceased; and
e) P20,000.00 as and for attorney’s fees."2
The appellate court ratiocinated that while the deceased might not have then as yet boarded
the train, a contract of carriage theretofore had already existed when the victim entered the
place where passengers were supposed to be after paying the fare and getting the
corresponding token therefor. In exempting Prudent from liability, the court stressed that there
was nothing to link the security agency to the death of Navidad. It said that Navidad failed to
show that Escartin inflicted fist blows upon the victim and the evidence merely established the
fact of death of Navidad by reason of his having been hit by the train owned and managed by
the LRTA and operated at the time by Roman. The appellate court faulted petitioners for their
failure to present expert evidence to establish the fact that the application of emergency brakes
could not have stopped the train.
The appellate court denied petitioners’ motion for reconsideration in its resolution of 10
October 2000.
In their present recourse, petitioners recite alleged errors on the part of the appellate court;
viz:
"I.
THE HONORABLE COURT OF APPEALS GRAVELY ERRED BY DISREGARDING THE FINDINGS OF
FACTS BY THE TRIAL COURT
"II.
THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN FINDING THAT PETITIONERS ARE
LIABLE FOR THE DEATH OF NICANOR NAVIDAD, JR.
"III.
THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN FINDING THAT RODOLFO ROMAN IS
AN EMPLOYEE OF LRTA."3
Petitioners would contend that the appellate court ignored the evidence and the factual findings
of the trial court by holding them liable on the basis of a sweeping conclusion that the
presumption of negligence on the part of a common carrier was not overcome. Petitioners
would insist that Escartin’s assault upon Navidad, which caused the latter to fall on the tracks,
was an act of a stranger that could not have been foreseen or prevented. The LRTA would add
that the appellate court’s conclusion on the existence of an employer-employee relationship
between Roman and LRTA lacked basis because Roman himself had testified being an employee
of Metro Transit and not of the LRTA.
Respondents, supporting the decision of the appellate court, contended that a contract of
carriage was deemed created from the moment Navidad paid the fare at the LRT station and
entered the premises of the latter, entitling Navidad to all the rights and protection under a
contractual relation, and that the appellate court had correctly held LRTA and Roman liable for
the death of Navidad in failing to exercise extraordinary diligence imposed upon a common
carrier.
Law and jurisprudence dictate that a common carrier, both from the nature of its business and
for reasons of public policy, is burdened with the duty of exercising utmost diligence in ensuring
the safety of passengers.4 The Civil Code, governing the liability of a common carrier for death
of or injury to its passengers, provides:
"Article 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 a due
regard for all the circumstances.
"Article 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 in articles 1733 and 1755."
"Article 1759. Common carriers are liable for the death of or injuries to passengers through the
negligence or willful acts of the former’s employees, although such employees may have acted
beyond the scope of their authority or in violation of the orders of the common carriers.
"This liability of the common carriers does not cease upon proof that they exercised all the
diligence of a good father of a family in the selection and supervision of their employees."
"Article 1763. A common carrier is responsible for injuries suffered by a passenger on account
of the willful acts or negligence of other passengers or of strangers, if the common carrier’s
employees through the exercise of the diligence of a good father of a family could have
prevented or stopped the act or omission."
The law requires common carriers to carry passengers safely using the utmost diligence of very
cautious persons with due regard for all circumstances.5 Such duty of a common carrier to
provide safety to its passengers so obligates it not only during the course of the trip but for so
long as the passengers are within its premises and where they ought to be in pursuance to the
contract of carriage.6 The statutory provisions render a common carrier liable for death of or
injury to passengers (a) through the negligence or wilful acts of its employees or b) on account
of wilful acts or negligence of other passengers or of strangers if the common carrier’s
employees through the exercise of due diligence could have prevented or stopped the act or
omission.7 In case of such death or injury, a carrier is presumed to have been at fault or been
negligent, and8 by simple proof of injury, the passenger is relieved of the duty to still establish
the fault or negligence of the carrier or of its employees and the burden shifts upon the carrier
to prove that the injury is due to an unforeseen event or to force majeure. 9 In the absence of
satisfactory explanation by the carrier on how the accident occurred, which petitioners,
according to the appellate court, have failed to show, the presumption would be that it has
been at fault,10 an exception from the general rule that negligence must be proved.11
The foundation of LRTA’s liability is the contract of carriage and its obligation to indemnify the
victim arises from the breach of that contract by reason of its failure to exercise the high
diligence required of the common carrier. In the discharge of its commitment to ensure the
safety of passengers, a carrier may choose to hire its own employees or avail itself of the services
of an outsider or an independent firm to undertake the task. In either case, the common carrier
is not relieved of its responsibilities under the contract of carriage.
Should Prudent be made likewise liable? If at all, that liability could only be for tort under the
provisions of Article 217612 and related provisions, in conjunction with Article 2180,13 of the Civil
Code. The premise, however, for the employer’s liability is negligence or fault on the part of the
employee. Once such fault is established, the employer can then be made liable on the basis of
the presumption juris tantum that the employer failed to exercise diligentissimi patris families
in the selection and supervision of its employees. The liability is primary and can only be negated
by showing due diligence in the selection and supervision of the employee, a factual matter that
has not been shown. Absent such a showing, one might ask further, how then must the liability
of the common carrier, on the one hand, and an independent contractor, on the other hand, be
described? It would be solidary. A contractual obligation can be breached by tort and when the
same act or omission causes the injury, one resulting in culpa contractual and the other in culpa
aquiliana, Article 219414 of the Civil Code can well apply.15 In fine, a liability for tort may arise
even under a contract, where tort is that which breaches the contract.16 Stated differently, when
an act which constitutes a breach of contract would have itself constituted the source of a quasi-
delictual liability had no contract existed between the parties, the contract can be said to have
been breached by tort, thereby allowing the rules on tort to apply.17
Regrettably for LRT, as well as perhaps the surviving spouse and heirs of the late Nicanor
Navidad, this Court is concluded by the factual finding of the Court of Appeals that "there is
nothing to link (Prudent) to the death of Nicanor (Navidad), for the reason that the negligence
of its employee, Escartin, has not been duly proven x x x." This finding of the appellate court is
not without substantial justification in our own review of the records of the case.

There being, similarly, no showing that petitioner Rodolfo Roman himself is guilty of any
culpable act or omission, he must also be absolved from liability. Needless to say, the
contractual tie between the LRT and Navidad is not itself a juridical relation between the latter
and Roman; thus, Roman can be made liable only for his own fault or negligence.

The award of nominal damages in addition to actual damages is untenable. Nominal damages
are adjudicated in order that a right of the plaintiff, which has been violated or invaded by the
defendant, may be vindicated or recognized, and not for the purpose of indemnifying the
plaintiff for any loss suffered by him.18 It is an established rule that nominal damages cannot co-
exist with compensatory damages.19

WHEREFORE, the assailed decision of the appellate court is AFFIRMED with MODIFICATION but
only in that (a) the award of nominal damages is DELETED and (b) petitioner Rodolfo Roman is
absolved from liability. No costs.

SO ORDERED.

Davide, Jr., C.J., (Chairman), Ynares-Santiago, Carpio and Azcuna, JJ., concur.
G.R. No. 138550 October 14, 2005
AMERICAN EXPRESS INTERNATIONAL, INC., Petitioner,
vs.
NOEL CORDERO, Defendant.
DECISION
SANDOVAL-GUTIERREZ, J.:
This is a petition for review on certiorari of the Decision1 of the Court of Appeals dated April 30,
1999 in CA-G.R. CV No. 51671, entitled, "Noel Cordero, Plaintiff-Appellee versus American
Express International, Inc., Defendant-Appellant."
Petitioner is a foreign corporation that issues charge cards to its customers, which the latter
then use to purchase goods and services at accredited merchants worldwide. Sometime in 1988,
Nilda Cordero, wife of respondent Noel Cordero, applied for and was issued an American
Express charge card with No. 3769-895901-010020. The issuance of the charge card was
covered by an Amex Cardmember Agreement. As cardholder, Nilda, upon signing the back
portion of the card, manifested her acceptance of the terms of the Agreement.
An extension charge card, with No. 3769-895901-01010, was likewise issued to respondent Noel
Cordero which he also signed.2
On November 29, 1991, respondent, together with his wife, Nilda, daughter, sisters-in-law and
uncle-in-law, went on a three-day holiday trip to Hong Kong. In the early evening of November
30, 1991, at about 7:00 o’clock, the group went to the Watson’s Chemist Shop located at 277C
Ocean Gallery, Kowloon, Hong Kong. Noel picked up some chocolate candies and handed to the
sales clerk his American Express extension charge card to pay for his purchases. The sales clerk
verified the card by making a telephone call to the American Express Office in Hong Kong.
Moments later, Susan Chong, the store manager, emerged from behind the counter and
informed respondent that she had to confiscate the card. Thereupon, she cut respondent’s
American Express card in half with a pair of scissors. This, according to respondent, caused him
embarrassment and humiliation considering that it was done in front of his family and the other
customers lined up at the check-out counter. Hence, Nilda had to pay for the purchases using
her own American Express charge card.3
When they returned to the Excelsior Hotel, Nilda called up petitioner’s Office in Hong Kong. She
was able to talk to Senior Authorizer Johnny Chen, who informed her that on November 1, 1991,
a person in Hong Kong attempted to use a charge card with the same number as respondent’s
card. The Hong Kong American Express Office called up respondent and after determining that
he was in Manila and not in Hong Kong, placed his card in the "Inspect Airwarn Support System."
This is the system utilized by petitioner as a protection both for the company and the
cardholders against the fraudulent use of their charge cards. Once a card suspected of
unauthorized use is placed in the system, the person to whom the card is tendered must verify
the identity of the holder. If the true identity of the card owner is established, the card is
honored and the charges are approved. Otherwise, the card is revoked or confiscated.4
When the Watson’s sales clerk called up petitioner’s Hong Kong Office, its representative said
he wants to talk to respondent in order to verify the latter’s identity, pursuant to the procedure
observed under the "Inspect Airwarn Support System." However, respondent refused.
Consequently, petitioner’s representative was unable to establish the identity of the
cardholder.5 This led to the confiscation of respondent’s card.
On March 31, 1992, respondent filed with the Regional Trial Court, Branch V, Manila, a
complaint for damages against petitioner, docketed as Civil Case No. 92-60807. He prayed for
the award of moral damages and exemplary damages, as well as attorney’s fees as a result of
the humiliation he suffered.
The trial court found that "the inexcusable failure of defendant (petitioner herein) to inform
plaintiff (respondent herein) of the November 1, 1991 incident despite sufficient time was the
proximate cause of the confiscation and cutting of plaintiff’s extension card which exposed the
latter to public humiliation for which defendant should be held liable." 6 On February 20, 1995,
the trial court promulgated its Decision, the dispositive portion of which reads:
"WHEREFORE, judgment is hereby rendered in favor of the plaintiff and against the defendant,
ordering the latter to pay the former the following amounts, namely:
a) The sum of ₱300,000.00 as and by way of moral damages;
b) The sum of ₱200,000.00 as exemplary damages;
c) The sum of ₱100,000.00 as and for reasonable attorney’s fees; and
d) The costs of the suit.
SO ORDERED."7
Upon appeal, the Court of Appeals rendered the assailed Decision affirming the trial court’s
Decision with modification in the sense that the amounts of damages awarded were reduced,
thus:
"WHEREFORE, in view of the foregoing, the appealed decision dated February 20, 1995 of the
Regional Trial Court of Manila, Branch V, in Civil Case No. 92-60807 is hereby AFFIRMED, subject
to modifications with respect to the amount of damages awarded, which are reduced as follows:
(a) Moral damages from ₱300,000.00 to ₱150,000.00; and
(b) Exemplary damages from ₱200,000.00 to ₱100,000.00.
No pronouncement as to costs.
SO ORDERED."
Hence, the instant petition raising the following issues:
"A. Whether the lower courts gravely erred in attributing the ‘public humiliation’ allegedly
suffered by Cordero to Amex.
B. Whether the lower courts gravely erred in holding Amex liable to Cordero for moral damages,
exemplary damages and attorney’s fees."8
Respondent filed his comment contending in the main that the petition raises questions of fact
beyond this Court’s domain.
While it is true that under Rule 45 of the 1997 Rules of Civil Procedure, as amended, this Court
may review only errors of law, however, this rule admits of well-known recognized exceptions,
thus:
". . . (1) the conclusion is a finding grounded entirely on speculation, surmise and conjecture;
(2) the inference made is manifestly mistaken; (3) there is grave abuse of discretion; (4) the
judgment is based on a misapprehension of facts; (5) the findings of fact are conflicting; (6) the
Court of Appeals went beyond the issues of the case and its findings are contrary to the
admissions of both parties; (7) the findings of fact of the Court of Appeals are contrary to those
of the trial court; (8) said findings of fact are conclusions without citation of specific evidence
on which they are based; (9) the facts set forth in the petition are not disputed by the
respondents; and (10) the findings of fact of the Court of Appeals are premised on the supposed
absence of evidence and contradicted by the evidence on record."9
In this case, the inference made by the courts below is manifestly mistaken. Therefore, we are
justified in reviewing the records of this case and rendering judgment based on our own
findings.
In his complaint, respondent claimed that he suffered embarrassment and humiliation because
his card was unceremoniously confiscated and cut in half by Susan Chong of Watson’s Chemist
Shop.
Respondent anchors his cause of action on the following provision of the Civil Code:
"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."10
In order that an obligation based on quasi-delict may arise, there must be no pre-existing
contractual relation between the parties. But there are exceptions. There may be an action for
quasi-delict notwithstanding that there is a subsisting contract between the parties. A liability
for tort may arise even under a contract, where tort is that which breaches the contract. Stated
differently, when an act which constitutes a breach of contract would have itself constituted
the source of a quasi-delictual liability, the contract can be said to have been breached by tort,
thereby allowing the rules on tort to apply.11
Furthermore, to constitute quasi-delict, the fault or negligence must be the proximate cause of
the damage or injury suffered by the plaintiff. Proximate cause is that cause which, in natural
and continuous sequence, unbroken by any efficient intervening cause, produces the injury and
without which the result would not have occurred. Proximate cause is determined by the facts
of each case upon mixed considerations of logic, common sense, policy and precedent.12
According to the trial court, petitioner should have informed respondent that on November 1,
1991, a person in Hong Kong attempted to use a charge card bearing similar number to that of
respondent’s card; and that petitioner’s inexcusable failure to do so is the proximate cause of
the "confiscation and cutting of [respondent’s] extension card which exposed the latter to public
humiliation for which [petitioner] should be held liable."13
We cannot sustain the trial court’s conclusion.
As explained by respondent himself, he could have used his card upon verification by the sales
clerk of Watson that indeed he is the authorized cardholder. This could have been accomplished
had respondent talked to petitioner’s representative, enabling the latter to determine that
respondent is indeed the true holder of the card. Clearly, no negligence which breaches the
contract can be attributed to petitioner. If at all, the cause of respondent’s humiliation and
embarrassment was his refusal to talk to petitioner’s representative.
That respondent refused to talk to petitioner’s representative can be gleaned from the
testimony of Mr. Chen Heng Kun a.k.a. Johnny Chen during the deposition in Hong Kong,14 thus:
"Question No 9 : Was AEII required under its existing policies and/or membership agreement
with its cardholders to advise said cardholders of their card have been put under the support
INSPECT – Strictly Question (for identification) cardmembers before approving any charge?
Mr. Johnny Chen : Under the existing policies of AEII, we don’t have to inform the cardholders
if they have to pass the INSPECT –Strictly Questions (for identification).
Question No 10 : If the answer to Q9 is in the negative, please explain why not?
Mr. Johnny Chen : The reason why we don’t have to are because, first, we are not terminating
the service to the cardholder. Second, it doesn’t mean that we are going to limit the service to
the cardholder. Third, as long as the cardholder can present an identification card of his
membership, we allow him to use the card. He can show this by telephoning the company or by
presenting us his passport or travel document. When Watson Company called AEII for
authorization, AEII representative requested that he talk to Mr. Cordero but he refused to talk
to any representative of AEII. AEII could not prove then that he is really the real card holder."
Mr. Chen Heng Kun was briefly cross-examined by respondent’s counsel, thus:
"Question No 10 : Question 9 is objected to since the best evidence would be the membership
agreement between plaintiffs and AEII."
Significantly, paragraph 16 of the Cardmember Agreement signed by respondent provides:
"16. THE CARD REMAINS OUR PROPERTY
"The Card remains our property and we can revoke your right and the right of ay Additional
Cardmember to use it at any time, we can do this with or without giving you notice. If we have
revoked the Card without cause, we will refund a proportion of your annual Card Account fee.
We may list revoked Cards in our "Cancellation Bulletin", or otherwise inform Establishments
that the Card issued to you and, if you are the basic Cardmember, any Additional Cards have
been revoked or cancelled.

"If we revoke the card or it expires, you must return it to us if we request. Also, if any
Establishment asks you to surrender an expired or revoked Card, you must do so. You may not
use the Card after it has expired or after it has been revoked.

"The revocation, repossession or request for the return of the Card is not, and shall not
constitute any reflection of your character or credit-worthiness and we shall not be liable in any
way for any statement made by any person requesting the return or surrender of the Card."15

To be sure, pursuant to the above stipulation, petitioner can revoke respondent’s card without
notice, as was done here. It bears reiterating that the subject card would not have been
confiscated and cut had respondent talked to petitioner’s representative and identified himself
as the genuine cardholder. It is thus safe to conclude that there was no negligence on the part
of petitioner and that, therefore, it cannot be held liable to respondent for damages.

WHEREFORE, the petition is GRANTED. The assailed Decision of the Court of Appeals in CA-G.R.
CV No. 51671 is REVERSED.

SO ORDERED.
G.R. No. 120554 September 21, 1999
SO PING BUN, petitioner,
vs.
COURT OF APPEALS, TEK HUA ENTERPRISES CORP. and MANUEL C. TIONG, respondents.
QUISUMBING, J.:
This petition for certiorari challenges the Decision 1 of the Court of Appeals dated October 10,
1994, and the Resolution 2dated June 5, 1995, in CA-G.R. CV No. 38784. The appellate court
affirmed the decision of the Regional Trial Court of Manila, Branch 35, except for the award of
attorney's fees, as follows:
WHEREFORE, foregoing considered, the appeal of respondent-appellant So Ping Bun for lack of
merit is DISMISSED. The appealed decision dated April 20, 1992 of the court a quo is modified
by reducing the attorney's fees awarded to plaintiff Tek Hua Enterprising Corporation from
P500,000.00 to P200,000.00. 3
The facts are as follows:
In 1963, Tek Hua Trading Co, through its managing partner, So Pek Giok, entered into lease
agreements with lessor Dee C. Chuan & Sons Inc. (DCCSI). Subjects of four (4) lease contracts
were premises located at Nos. 930, 930-Int., 924-B and 924-C, Soler Street, Binondo, Manila.
Tek Hua used the areas to store its textiles. The contracts each had a one-year term. They
provided that should the lessee continue to occupy the premises after the term, the lease shall
be on a month-to-month basis.
When the contracts expired, the parties did not renew the contracts, but Tek Hua continued to
occupy the premises. In 1976, Tek Hua Trading Co. was dissolved. Later, the original members
of Tek Hua Trading Co. including Manuel C. Tiong, formed Tek Hua Enterprising Corp., herein
respondent corporation.
So Pek Giok, managing partner of Tek Hua Trading, died in 1986. So Pek Giok's grandson,
petitioner So Ping Bun, occupied the warehouse for his own textile business, Trendsetter
Marketing.
On August 1, 1989, lessor DCCSI sent letters addressed to Tek Hua Enterprises, informing the
latter of the 25% increase in rent effective September 1, 1989. The rent increase was later on
reduced to 20% effective January 1, 1990, upon other lessees' demand. Again on December 1,
1990, the lessor implemented a 30% rent increase. Enclosed in these letters were new lease
contracts for signing. DCCSI warned that failure of the lessee to accomplish the contracts shall
be deemed as lack of interest on the lessee's part, and agreement to the termination of the
lease. Private respondents did not answer any of these letters. Still, the lease contracts were
not rescinded.
On March 1, 1991, private respondent Tiong sent a letter to petitioner which reads as follows:
March 1, 1991
Mr. So Ping Bun
930 Soler Street
Binondo, Manila
Dear Mr. So,
Due to my closed (sic) business associate (sic) for three decades with your late grandfather Mr.
So Pek Giok and late father, Mr. So Chong Bon, I allowed you temporarily to use the warehouse
of Tek Hua Enterprising Corp. for several years to generate your personal business.
Since I decided to go back into textile business, I need a warehouse immediately for my stocks.
Therefore, please be advised to vacate all your stocks in Tek Hua Enterprising Corp. Warehouse.
You are hereby given 14 days to vacate the premises unless you have good reasons that you
have the right to stay. Otherwise, I will be constrained to take measure to protect my interest.
Please give this urgent matter your preferential attention to avoid inconvenience on your part.
Very truly yours,
(Sgd) Manuel C. Tiong
MANUEL C. TIONG
President 4
Petitioner refused to vacate. On March 4, 1992, petitioner requested formal contracts of lease
with DCCSI in favor Trendsetter Marketing. So Ping Bun claimed that after the death of his
grandfather, So Pek Giok, he had been occupying the premises for his textile business and
religiously paid rent. DCCSI acceded to petitioner's request. The lease contracts in favor of
Trendsetter were executed.
In the suit for injunction, private respondents pressed for the nullification of the lease contracts
between DCCSI and petitioner. They also claimed damages.
After trial, the trial court ruled:
WHEREFORE, judgment is rendered:
1. Annulling the four Contracts of Lease (Exhibits A, A-1 to A-3, inclusive) all dated March 11,
1991, between defendant So Ping Bun, doing business under the name and style of "Trendsetter
Marketing", and defendant Dee C. Chuan & Sons, Inc. over the premises located at Nos. 924-B,
924-C, 930 and 930, Int., respectively, Soler Street, Binondo Manila;
2. Making permanent the writ of preliminary injunction issued by this Court on June 21, 1991;
3. Ordering defendant So Ping Bun to pay the aggrieved party, plaintiff Tek Hua Enterprising
Corporation, the sum of P500,000.00, for attorney's fees;
4. Dismissing the complaint, insofar as plaintiff Manuel C. Tiong is concerned, and the respective
counterclaims of the defendant;
5. Ordering defendant So Ping Bun to pay the costs of this lawsuit;
This judgment is without prejudice to the rights of plaintiff Tek Hua Enterprising Corporation
and defendant Dee C. Chuan & Sons, Inc. to negotiate for the renewal of their lease contracts
over the premises located at Nos. 930, 930-Int., 924-B and 924-C Soler Street, Binondo, Manila,
under such terms and conditions as they agree upon, provided they are not contrary to law,
public policy, public order, and morals.
SO ORDERED. 5
Petitioner's motion for reconsideration of the above decision was denied.
On appeal by So Ping Bun, the Court of Appeals upheld the trial court. On motion for
reconsideration, the appellate court modified the decision by reducing the award of attorney's
fees from five hundred thousand (P500,000.00) pesos to two hundred thousand (P200,000.00)
pesos.
Petitioner is now before the Court raising the following issues:
I. WHETHER THE APPELLATE COURT ERRED IN AFFIRMING THE TRIAL COURT'S DECISION
FINDING SO PING BUN GUILTY OF TORTUOUS INTERFERENCE OF CONTRACT?
II. WHETHER THE APPELLATE COURT ERRED IN AWARDING ATTORNEY'S FEES OF P200,000.00
IN FAVOR OF PRIVATE RESPONDENTS.
The foregoing issues involve, essentially, the correct interpretation of the applicable law on
tortuous conduct, particularly unlawful interference with contract. We have to begin, obviously,
with certain fundamental principles on torts and damages.
Damage is the loss, hurt, or harm which results from injury, and damages are the recompense
or compensation awarded for the damage suffered. 6 One becomes liable in an action for
damages for a nontrespassory invasion of another's interest in the private use and enjoyment
of asset if (a) the other has property rights and privileges with respect to the use or enjoyment
interfered with, (b) the invasion is substantial, (c) the defendant's conduct is a legal cause of the
invasion, and (d) the invasion is either intentional and unreasonable or unintentional and
actionable under general negligence rules. 7
The elements of tort interference are: (1) existence of a valid contract; (2) knowledge on the
part of the third person of the existence of contract; and (3) interference of the third person is
without legal justification or excuse. 8
A duty which the law of torts is concerned with is respect for the property of others, and a cause
of action ex delicto may be predicated upon an unlawful interference by one person of the
enjoyment by the other of his private
property.9 This may pertain to a situation where a third person induces a party to renege on or
violate his undertaking under a contract. In the case before us, petitioner's Trendsetter
Marketing asked DCCSI to execute lease contracts in its favor, and as a result petitioner deprived
respondent corporation of the latter's property right. Clearly, and as correctly viewed by the
appellate court, the three elements of tort interference above-mentioned are present in the
instant case.
Authorities debate on whether interference may be justified where the defendant acts for the
sole purpose of furthering his own financial or economic interest. 10 One view is that, as a
general rule, justification for interfering with the business relations of another exists where the
actor's motive is to benefit himself. Such justification does not exist where his sole motive is to
cause harm to the other. Added to this, some authorities believe that it is not necessary that
the interferer's interest outweigh that of the party whose rights are invaded, and that an
individual acts under an economic interest that is substantial, not merely de minimis, such that
wrongful and malicious motives are negatived, for he acts in self-protection. 11Moreover
justification for protecting one's financial position should not be made to depend on a
comparison of his economic interest in the subject matter with that of others. 12 It is sufficient
if the impetus of his conduct lies in a proper business interest rather than in wrongful motives. 13
As early as Gilchrist vs. Cuddy, 14 we held that where there was no malice in the interference of
a contract, and the impulse behind one's conduct lies in a proper business interest rather than
in wrongful motives, a party cannot be a malicious interferer. Where the alleged interferer is
financially interested, and such interest motivates his conduct, it cannot be said that he is an
officious or malicious intermeddler. 15
In the instant case, it is clear that petitioner So Ping Bun prevailed upon DCCSI to lease the
warehouse to his enterprise at the expense of respondent corporation. Though petitioner took
interest in the property of respondent corporation and benefited from it, nothing on record
imputes deliberate wrongful motives or malice on him.
Sec. 1314 of the Civil Code categorically provides also that, "Any third person who induces
another to violate his contract shall be liable for damages to the other contracting party."
Petitioner argues that damage is an essential element of tort interference, and since the trial
court and the appellate court ruled that private respondents were not entitled to actual, moral
or exemplary damages, it follows that he ought to be absolved of any liability, including
attorney's fees.
It is true that the lower courts did not award damages, but this was only because the extent of
damages was not quantifiable. We had a similar situation in Gilchrist, where it was difficult or
impossible to determine the extent of damage and there was nothing on record to serve as
basis thereof. In that case we refrained from awarding damages. We believe the same
conclusion applies in this case.
While we do not encourage tort interferers seeking their economic interest to intrude into
existing contracts at the expense of others, however, we find that the conduct herein
complained of did not transcend the limits forbidding an obligatory award for damages in the
absence of any malice. The business desire is there to make some gain to the detriment of the
contracting parties. Lack of malice, however, precludes damages. But it does not relieve
petitioner of the legal liability for entering into contracts and causing breach of existing ones.
The respondent appellate court correctly confirmed the permanent injunction and nullification
of the lease contracts between DCCSI and Trendsetter Marketing, without awarding damages.
The injunction saved the respondents from further damage or injury caused by petitioner's
interference.

Lastly, the recovery of attorney's fees in the concept of actual or compensatory damages, is
allowed under the circumstances provided for in Article 2208 of the Civil Code. 16 One such
occasion is when the defendant's act or omission has compelled the plaintiff to litigate with
third persons or to incur expenses to protect his interest. 17 But we have consistently held that
the award of considerable damages should have clear factual and legal bases. 18 In connection
with attorney's fees, the award should be commensurate to the benefits that would have been
derived from a favorable judgment. Settled is the rule that fairness of the award of damages by
the trial court calls for appellate review such that the award if far too excessive can be
reduced. 19 This ruling applies with equal force on the award of attorney's fees. In a long line of
cases we said, "It is not sound policy to place in penalty on the right to litigate. To compel the
defeated party to pay the fees of counsel for his successful opponent would throw wide open
the door of temptation to the opposing party and his counsel to swell the fees to undue
proportions."20

Considering that the respondent corporation's lease contract, at the time when the cause of
action accrued, ran only on a month-to-month basis whence before it was on a yearly basis, we
find even the reduced amount of attorney's fees ordered by the Court of Appeals still exorbitant
in the light of prevailing jurisprudence. 21 Consequently, the amount of two hundred thousand
(P200,000.00) awarded by respondent appellate court should be reduced to one hundred
thousand (P100,000.00) pesos as the reasonable award or attorney's fees in favor of private
respondent corporation.

WHEREFORE, the petition is hereby DENIED. The assailed Decision and Resolution of the Court
of Appeals in CA-G.R. CV No. 38784 are hereby AFFIRMED, with MODIFICATION that the award
of attorney's fees is reduced from two hundred thousand (P200,000.00) to one hundred
thousand (P100,000.00) pesos. No pronouncement as to costs.1âwphi1.nêt

SO ORDERED.
G.R. No. 202514
ANNA MARIE L. GUMABON, Petitioner
vs.
PHILIPPINE NATIONAL BANK, Respondent
DECISION
BRION, J.:
Before us is a petition for review on certiorari1under Rule 45 of the Rules of Court filed by Anna
Marie Gumabon (Anna Marie) assailing the December 16, 2011 decision2 and June 26, 2012
resolution3 of the Court of Appeals (CA) in CA-G.R. CV. No. 96289. The CA reversed the Regional
Trial Court (RTC)'s ruling4 in Civil Case No. Q-04-53432 favoring Anna Marie.
The Facts
On August 12, 2004, Anna Marie filed a complaint for recovery of sum of money and damages
before the RTC against the Philippine National Bank (PNB) and the PNB Delta branch manager
Silverio Fernandez (Fernandez). The case stemmed from the PNB’s refusal to release Anna
Marie’s money in a consolidated savings account and in two foreign exchange time deposits,
evidenced by Foreign Exchange Certificates of Time Deposit (FXCTD).
In 2001, Anna Marie, together with her mother Angeles and her siblings Anna Elena and
Santiago, (the Gumabons) deposited with the PNB Delta Branch $10,945.28 and $16,830.91, for
which they were issued FXCTD Nos. A-9939025 and A-993992,6 respectively.
The Gumabons also maintained eight (8) savings accounts7 in the same bank. Anna Marie
decided to consolidate the eight (8) savings accounts and to withdraw ₱2,727,235.85 from the
consolidated savings account to help her sister’s financial needs.
Anna Marie called the PNB employee handling her accounts, Reino Antonio Salvoro (Salvoro),
to facilitate the consolidation of the savings accounts and the withdrawal. When she went to
the bank on April 14, 2003, she was informed that she could not withdraw from the savings
accounts since her bank records were missing and Salvoro could not be contacted.
On April 15, 2003, Anna Marie presented her two FXCTDs, but was also unable to withdraw
against them. Fernandez informed her that the bank would still verify and investigate before
allowing the withdrawal since Salvoro had not reported for work.
Thus, Anna Marie sent two demand letters8 dated April 23 and April 25, 2003 to the PNB.
After a month, the PNB finally consolidated the savings accounts and issued a passbook
for Savings Account (SA) No. 6121200.9 The PNB also confirmed that the total deposits
amounted to ₱2,734,207.36. Anna Marie, her mother, and the PNB executed a Deed of Waiver
and Quitclaim dated May 23, 200310 to settle all questions regarding the consolidation of the
savings accounts. After withdrawals, the balance of her consolidated savings account was
₱250,741.82.
On July 30, 2003, the PNB sent letters to Anna Marie to inform her that the PNB refused to
honor its obligation under FXCTD Nos. 993902 and 993992,11 and that the PNB withheld the
release of the balance of ₱250,741.82 in the consolidated savings account.12 According to the
PNB, Anna Marie pre-terminated, withdrew and/or debited sums against her deposits.
Thus, Anna Marie filed before the RTC a complaint for sum of money and damages against the
PNB and Fernandez.13
As to the two FXCTDs, Anna Marie contended that the PNB’s refusal to pay her time deposits is
contrary to law.1âwphi1The PNB cannot claim that the bank deposits have been paid since the
certificates of the time deposits are still with Anna Marie.14
As to the consolidated savings account, Anna Marie stated that the PNB had already
acknowledged the account’s balance in the Deed of Waiver and Quitclaim amounting to
₱2,734,207.36. As of January 26, 2004, the remaining balance was ₱250,741.82. PNB presented
no concrete proof that this amount had been withdrawn.
Anna Marie prayed that the PNB and Fernandez be held solidarily liable for actual, moral, and
exemplary damages, as well as attorney’s fees, costs of suit, and legal interests because of the
PNB’s refusal to honor its obligations.
In its answer,15 the PNB argued that: (1) Anna Marie is not entitled to the balance of the
consolidated savings account based on solutio indebiti; (2) the PNB already paid the $10,058.01
covered by FXCTD No. 993902; (3) the PNB is liable to pay only $10,718.87 of FXCTD No. 993992,
instead of the full amount of $17,235.41; and (4) Anna Marie is guilty of contributory negligence.
The PNB’s arguments are discussed below.
First, Anna Marie is not entitled to the alleged balance of ₱250,741.82. The PNB’s investigation
showed that Anna Marie withdrew a total of ₱251,246.81 16 from two of the eight savings
accounts and she used this amount to purchase manager’s check No. 0000760633. 17 Hence,
₱251,246.81 should be deducted from the sum agreed upon in the Deed of Waiver and
Quitclaim. The PNB offered photocopies of the PNB’s miscellaneous ticket18 and the manager’s
check as evidence to prove the withdrawals. The PNB argued that unjust enrichment would
result if Anna Marie would be allowed to collect ₱250,741.82 from the consolidated savings
account without deducting her previous withdrawal of ₱251,246.81.
Second, Anna Marie is not entitled to receive $10,058.01 covered by FXCTD No. 993902. Based
on the PNB’s records, Anna Marie pre-terminated FXCTD No. 993902 on March 11, 2002, and
used the deposit, together with another deposit covered by FXCTD No. 993914 (for $8,111.35),
to purchase a foreign demand draft (FX Demand Draft No. 4699831) payable to Anna
Rose/Angeles Gumabon. The PNB presented a facsimile copy of Anna Rose’s Statement of
Account (SOA)19 from the PNB Bank to prove that the amount covered by FXCTD No. 993902
was already paid.
Third, Anna Marie is only entitled to receive $10,718.87 instead of the full amount of $17,235.41
covered by FXCTD No. 993992 because: (a) the amount of $1,950.00 was part of the money
used by Anna Marie to purchase the manager’s check; (2) the amount of $2,566.54 was credited
to Current Account No. 227-810961-8 owned by Anna Marie’s aunt, Lolita Lim; and (3) the
amount of $2,000.00 was credited to Current Account No. 2108107498 of Anna Marie and
Savings Account No. 212-5057333 of Anna Marie/or Angeles or Santiago/or Elena (all surnamed
Gumabon). Hence, these amounts should be deducted from the amount payable to Anna Marie.
Finally, the PNB alleged that Anna Marie was guilty of contributory negligence in her bank
dealings.
In her reply,20 Anna Marie argued that the best evidence of her withdrawals is the withdrawal
slips duly signed by her and the passbooks pertaining to the accounts. PNB, however, failed to
show any of the withdrawal slips and/or passbooks, and also failed to present sufficient
evidence that she used her accounts’ funds.
The RTC Ruling
The RTC ruled in Anna Marie’s favour.21
The RTC held that the PNB had not yet paid the remaining balance of $10,058.01 under FXCTD
No. 993902. Anna Marie’s SOA,22 which the PNB relied upon, is a mere photocopy and does not
satisfy the best evidence rule. Moreover, there is no indication on the stated amounts in the
SOA that the funds have come from FXCTD No. 993902.23 The PNB failed to obtain the
deposition of a PNC Bank officer or present any other evidence to show that the amounts stated
in the SOA came from FXCTD No. 993902. The RTC also held that the alleged pre-termination of
FXCTD No. 993902 on March 11, 2002, is hard to believe since the certificate shows that the last
entry was made on March 24, 2003, with a reflected balance of $10,058.01.
On FXCTD No. 993992, the RTC held that the PNB failed to prove Anna Marie’s alleged
withdrawals. These alleged withdrawals are not reflected at the back of the certificate. Anna
Marie’s ledger was also not presented as evidence to show that several withdrawals had been
made against FXCTD No. 993992.
On the consolidated savings account, the RTC held that the PNB failed to prove that Anna Marie
withdrew the balance of ₱250,741.82. The RTC excluded PNB’s evidence, i.e., photocopies of
the miscellaneous ticket and manager’s check, to prove the alleged withdrawals, since these
documents were just photocopies and thus failed to satisfy the best evidence rule.
The RTC awarded damages to Anna Marie due to the PNB’s mishandling of her account through
its employee, Salvoro. The RTC also held that the PNB failed to establish Anna Marie’s
contributory negligence.
In conclusion, the RTC ordered the PNB to pay Anna Marie these amounts:
(1) Actual damages of:
(a) $10,058.01, as the outstanding balance of FXCTD No. 993902;
(b) $20,244.42, as the outstanding balance of FXCTD No. 993992;and
(c) ₱250,741.82, as the outstanding balance of SA No. 6121200;
(2) ₱100,000.00 as moral damages;
(3) ₱50,000.00 as exemplary damages;
(4) ₱150,000.00 as attorney’s fees; and
(5) Costs of suit.
From this ruling, the PNB appealed before the CA.
The CA Ruling
The CA reversed the RTC’s ruling.24
The CA held that the PNB had paid the actual amounts claimed by Anna Marie in her complaint.
The CA noted Anna Marie’s suspicious and exclusive dealings with Salvoro and the Gumabons’
instruction to Salvoro to make unauthorized and unrecorded withdrawals. Hence, there are no
entries of withdrawals reflected in Anna Marie’s passbook.
The CA also considered Anna Rose’s SOA as proof that the PNB had paid the remaining balance
of $10,058.01 on FXCTD No. 993902. The CA held that the PNB verified the SOA and it was
corroborated by the affidavit25 of the PNB Branch Operations Officer in New York. The CA stated
that the RTC should have allowed the taking of the deposition of the PNB bank officer.
The CA also relied on the PNB’s investigation and concluded that the PNB had already paid the
amounts claimed by Anna Marie under FXCTD Nos. 993902 and 993992.
As to Anna Marie’s consolidated savings account, the CA gave credence to the miscellaneous
ticket and the manager’s check presented by the PNB to prove that it had already paid the
balance.
Anna Marie moved but failed to obtain reconsideration of the CA’s decision; hence, the present
petition.26
The Petition
Anna Marie filed the present petition for review to question the CA’s decision and resolution
which reversed the RTC’s ruling.
Anna Marie argues that: first, the CA should not have disregarded the RTC’s conclusive
findings; second, the CA erred in considering the PNB New York bank officer’s affidavit because
it was not formally offered as evidence; third, the CA erroneously relied on a foreign demand
draft27 to prove the PNB’s payment of the amount due under FXCTD No. 993902; fourth, the CA
erroneously considered the miscellaneous ticket and the manager’s check because these
documents are mere photocopies and inadmissible under the best evidence rule; and fifth, the
CA’s conclusion about a purported "connivance" between Anna Marie and Salvoro has no
evidentiary basis.
In its comment, the PNB counters that: first, the CA can rectify the RTC’s factual findings since
the RTC committed errors in its appreciation of the evidence; second, the RTC completely
ignored the PNB’s several evidence proving its payment of Anna Marie’s FXCTDs; third, Anna
Marie did not refute the PNB’s allegations of payment; fourth, the CA has the right to review
even those exhibits which were excluded by the RTC; and fifth, the CA correctly ruled that the PNB failed to establish the fact of
PNB should not be faulted about the unrecorded transactions, and that the PNB had done its payment to Anna Marie in FXCTD
duty to its depositors when it conducted investigations and an internal audit of Anna Marie’s Nos. 993902 and 993992, and SA No. 6121200.
accounts.
It is a settled rule in evidence that the one who alleges payment has the burden of proving
The Issues it.30 The burden of proving that the debt had been discharged by payment rests upon the debtor
once the debt’s existence has been fully established by the evidence on record. When the
The issue before this Court is whether Anna Marie is entitled to the payment of the following debtor introduces some evidence of payment, the burden of going forward with the evidence
amounts: – as distinct from the burden of proof – shifts to the creditor. Consequently, the creditor has a
(a) $10,058.01 or the outstanding balance under FXCTD No. 993902; duty to produce evidence to show non-payment.31

(b) $20,244.42 for FXCTD No. 993992;
(c) ₱250,741.82 for SA No. 6121200; and
(3) Damages.
Our Ruling
We grant the petition and reverse the CA’s ruling.
The core issue raised in the present petition is a question of fact. As a general rule, a petition
for review under Rule 45 of the Rules of Court covers only questions of law. Questions of fact
are not reviewable and cannot be passed upon by the Court in the exercise of its power to
review under Rule 45.28
There are, however, exceptions to the general rule. Questions of fact may be raised before this
Court in any of these instances: (1) when the findings are grounded entirely on speculations,
surmises, or conjectures; (2) when the inference made is manifestly mistaken, absurd, or
impossible; (3) when there is a grave abuse of discretion; (4) when the judgment is based on
misappreciation of facts; (5) when the findings of fact are conflicting; (6) when in making its
findings, the same are contrary to the admissions of both appellant and appellee; (7) when the
findings are contrary to those of the trial court; (8) when the findings are conclusions without
citation of specific evidence on which they are based; (9) when the facts set forth in the petition
as well as in the petitioners main and reply briefs are not disputed by the respondent; and (10)
when the findings of fact are premised on the supposed absence of evidence and contradicted
by the evidence on record.29
The present case falls under two of the exceptions, particularly that the CA’s findings are
contrary to the RTC’s findings, and that the CA’s findings of fact are premised on absent
evidence and contradicted by the evidence on record.
We note that the CA considered pieces of evidence which are inadmissible under the Rules of
Court, particularly the manager’s check and the corresponding miscellaneous ticket, Anna
Rose’s SOA, and the affidavit of the PNB New York’s bank officer. The inadmissibility of these
documents is explained more fully in the following discussion.
In the present case, both the CA and the RTC declared that the PNB has the burden of proving
payment. The lower courts, however, differed in resolving the question of whether the PNB
presented sufficient evidence of payment to shift the burden of evidence to Anna Marie. The
RTC ruled that the PNB failed to do so, after excluding PNB’s evidence, i.e., miscellaneous ticket,
manager’s check, and the affidavit of the PNB New York’s bank officer, based on the rules of
evidence. The CA, on the other hand, considered the excluded evidence and found that the PNB
presented sufficient proof of payment.
i. The PNB’s alleged payment of
the amount covered by SA No.
6121200
The PNB alleged that it had already paid the balance of the consolidated savings account (SA
No. 6121200) amounting to P250,741.82. It presented the manager’s check to prove that Anna
Marie purchased the check using the amounts covered by the Gumabon’s two savings accounts
which were later part of Anna Marie’s consolidated savings account. The PNB also presented
the miscellaneous ticket to prove Anna Marie’s withdrawal from the savings accounts.
The RTC denied the admission of the manager’s check and the miscellaneous ticket since the
original copies were never presented.32 The PNB moved to tender the excluded evidence and
argued that even without the presentation of the original copies, the photocopies are
admissible because they have been identified by Fernandez.33
Evidence, to be admissible, must comply with two qualifications: (a) relevance and (b)
competence. Evidence is relevant if it has a relation to the fact in issue as to induce a belief in
its existence or nonexistence.34 On the other hand, evidence is competent if it is not excluded
by the law or by the Rules of Court.35
One of the grounds under the Rules of Court that determines the competence of evidence is
the best evidence rule. Section 3, Rule 130 of the Rules of Court provides that the original copy
of the document must be presented whenever the content of the document is under inquiry.36
However, there are instances when the Court may allow the presentation of secondary evidence
in the absence of the original document. Section 3, Rule 130 of the Rules of Court enumerates
these exceptions:
(a) when the original has been lost, or destroyed, or cannot be produced in court, without bad
faith on the part of the offeror;
(b) when the original is in the custody or under the control of the party against whom the
evidence is offered, and the latter fails to produce it after reasonable notice;
(c) when the original consists of numerous accounts or other documents which cannot be
examined in court without great loss of time and the fact sought to be established from them is
only the general result of the whole; and
(d) when the original is a public record in the custody of a public officer or is recorded in a public
office.
While the RTC cannot consider the excluded evidence to resolve the issues, such evidence may
still be admitted on appeal provided there has been tender of the excluded evidence under
Section 40 of Rule 132 of the Rules of Court.37
The PNB cannot simply substitute the mere photocopies of the subject documents for the
original copies without showing the court that any of the exceptions under Section 3 of Rule
130 of the Rules of Court applies. The PNB’s failure to give a justifiable reason for the absence
of the original documents and to maintain a record of Anna Marie’s transactions only shows the
PNB’s dismal failure to fulfill its fiduciary duty to Anna Marie.38 The Court expects the PNB to
"treat the accounts of its depositors with meticulous care, always having in mind the fiduciary
nature of their relationship."39 The Court explained in Philippine Banking Corporation v.
CA,40 the fiduciary nature of the bank’s relationship with its depositors, to wit:
The business of banking is imbued with public interest. The stability of banks largely depends on
the confidence of the people in the honesty and efficiency of banks. In Simex International
(Manila) Inc. v. Court of Appeals we pointed out the depositor’s reasonable expectations from
a bank and the bank’s corresponding duty to its depositor, as follows:
In every case, the depositor expects the bank to treat his account with the utmost fidelity,
whether such account consists only of a few hundred pesos or of millions. The bank must record
every single transaction accurately, down to the last centavo, and as promptly as possible. This
has to be done if the account is to reflect at any given time the amount of money the depositor
can dispose of as he sees fit, confident that the bank will deliver it as and to whomever he
directs. (emphasis and underscoring supplied)
Consequently, the CA should not have admitted the subject documents even if the PNB
tendered the excluded evidence.
Notably, the PNB clearly admitted in the executed Deed of Waiver and Quitclaim that it owed
Anna Marie ₱2,734,207.36 under the consolidated savings account. After a number of
uncontested transactions, the remaining balance of Anna Marie’s deposit became ₱250,741.82.
The inevitable conclusion is that PNB’s obligation to pay ₱250,741.82 under SA No. 6121200
subsists.
ii. The PNB’s alleged payment of
the amount covered by FXCTD No. 993902
The PNB claimed that it had already paid the amount of $10,058.01 covered by FXCTD No.
993902. It presented the foreign demand draft dated March 11, 2002 which Anna Marie
allegedly purchased with the funds of FXCTD No. 993902. In addition, the PNB also presented
Anna Rose’s SOA to show that there was a fund transfer involving the contested amount. To
further support its claim, the PNB annexed the affidavit of the PNB New York’s branch officer
about the fund transfer. The PNB, however, failed to formally offer the affidavit as evidence.
Anna Marie moved for the exclusion of the photocopy of Anna Rose’s SOA for failing to conform
to the best evidence rule. The RTC granted her motion and denied its admission. When the case
reached the CA, the CA stated that the RTC should have considered the evidence in the light of
the PNB’s identification of the SOA as an exact copy of the original and the claim that it is
corroborated by the affidavit of the PNB New York’s bank officer.
The PNB explained that its failure to present the original copy of Anna Rose’s SOA was because
the original was not in the PNB’s possession.
We rule that the SOA is inadmissible because it fails to qualify as relevant evidence. As the RTC
correctly stated, the SOA "does not show which of the amount stated therein came from the
funds of Certificate of Time Deposit No. A-993902."41
The affidavit of the PNB New York’s bank officer is also inadmissible in the light of the following
self-explanatory provision of the Rules of Court:
"Sec. 34. Offer of evidence. – The court shall consider no evidence which has not been formally
offered. x x x."42
Formal offer means that the offeror shall inform the court of the purpose of introducing its
exhibits into evidence. Without a formal offer of evidence, courts cannot take notice of this
evidence even if this has been previously marked and identified.43
In Heirs of Pedro Pasag v. Parocha,44 we reiterated the importance of a formal offer of evidence.
Courts are mandated to rest their factual findings and their judgment only and strictly upon the
evidence offered by the parties at the trial. The formal offer enables the judge to know the
purpose or purposes for which the proponent is presenting the evidence. It also affords the
opposing parties the chance to examine the evidence and to object to its admissibility.
Moreover, it facilitates review as the appellate court will not be required to review documents
not previously scrutinized by the trial court.
In People v. Napat-a,45 People v. Mate,46 and Heirs of Romana Saves, et al. v. Escolastico Saves,
et al.,47 we recognized the exceptions from the requirement of a formal offer of evidence,
namely: (a) the evidence must have been duly identified by testimony duly recorded; and (b)
the evidence must have been incorporated in the records of the case.
It is unmistakable that the PNB did not include the affidavit of the PNB New York’s bank officer
in its formal offer of evidence to corroborate Anna Rose’s SOA. Although the affidavit was
included in the records and identified by Fernandez, it remains inadmissible for being hearsay. obligation to treat its depositor’s accounts with meticulous care, having in mind the nature of
Jurisprudence dictates that an affidavit is merely hearsay evidence when its affiant or maker did their relationship.54 The bank is required to assume a degree of diligence higher than that of a
not take the witness stand.48 good father of a family.55

In the present case, Fernandez is not the proper party to identify the affidavit executed by the
PNB New York’s bank officer since he is not the affiant. Therefore, the affidavit is inadmissible.
Thus, the PNB failed to present sufficient and admissible evidence to prove payment of the
$10,058.01.This failure leads us to conclude that the PNB is still liable to pay the amount covered
by FXCTD No. 993902.
iii. The PNB’s alleged payment of
the amount covered by FXCTD No. 993992
The PNB alleged that Anna Marie’s claim over FXCTD No. 993992 should only be limited to
$5,857.79. It presented the manager’s check, which admissibility we have heretofore discussed
and settled, and the miscellaneous tickets.
We cannot absolve the PNB from liability based on these miscellaneous tickets alone. As the
RTC correctly stated, the transactions allegedly evidenced by these tickets were neither posted
at the back of Anna Marie’s certificate, nor recorded on her ledger to show that several
withdrawals had been made on the account.
At this point, we remind the PNB of the negotiability of a certificate of deposit as it is a written
acknowledgment by the bank of the receipt of a sum of money on deposit which the bank
promises to pay to the depositor, to the latter’s order, or to some other person or the latter’s
order.49 To discharge a debt, the bank must pay to someone authorized to receive the
payment.50 A bank acts at its peril when it pays deposits evidenced by a certificate of deposit,
without its production and surrender after proper indorsement.51
As earlier settled, the PNB was negligent for its failure to update and properly handle Anna
Marie’s accounts. This is patent from the PNB’s letter to Anna Marie, admitting the error and
unauthorized withdrawals from her account. Moreover, Anna Marie was led to believe that the
amounts she has in her accounts would remain because of the Deed of Waiver and
Quitclaim executed by her, her mother, and PNB. Assuming arguendo that Anna Marie made
the contested withdrawals, due diligence requires the PNB to record the transactions in her
passbooks.
The Court has established in a number of cases the standard of care required from banks, and
the bank’s liability for the damages sustained by the depositor. The bank is not absolved from
liability by the fact that it was the bank’s employee who committed the wrong and caused
damage to the depositor.56 Article 2180 of the New Civil Code provides that the owners and
managers of an establishment are responsible for damages caused by their employees while
performing their functions.57
In addition, we held in PNB v. Pike,58 that although the bank’s employees are the ones negligent,
a bank is primarily liable for the employees’ acts because banks are expected to exercise the
highest degree of diligence in the selection and supervision of their employees.
Indeed, a great possibility exists that Salvoro was involved in the unauthorized withdrawals.
Anna Marie entrusted her accounts to and made her banking transactions only through him.
Salvaro’s unexplained disappearance further confirms this Court’s suspicions. The Court is
alarmed that he was able to repeatedly do these unrecorded transactions without the bank
noticing it. This only shows that the PNB has been negligent in the supervision of its employees.

Again, as the RTC had correctly stated, the PNB should not have allowed the withdrawals, if
there were indeed any, without the presentation of the covering foreign certificates of time
deposit. There are no irregularities on Anna Marie’s certificates to justify the PNB’s refusal to
pay the stated amounts in the certificates when it was presented for payment.
Therefore, the PNB is liable for Anna Marie’s claims since it failed to prove that it had already
been discharged from its obligation.
As to contributory negligence, the Court agrees with the RTC that the PNB failed to substantiate
its allegation that Anna Marie was guilty of contributory negligence.
Contributory negligence is conduct on the part of the injured party, contributing as a legal cause
to the harm he has suffered, which falls below the standard to which he is required to conform
for his own protection.59 Whether contributory negligence transpired is a factual matter that
must be proven.

PNB is liable to Anna Marie for actual, moral, and In the present case, Anna Marie cannot be held responsible for entrusting her account with
exemplary damages as well as attorney’s fees for its Salvoro. As shown in the records, Salvoro was the bank’s time deposit specialist. Anna Marie
negligent acts as a banking institution. cannot thus be faulted if she engaged the bank’s services through Salvoro for transactions
related to her time deposits.
Since the PNB is clearly liable to Anna Marie for her deposits, the Court now determines PNB’s
liability for damages under existing laws and jurisprudence. The Court also cannot accept the CA’s conclusion that there was connivance between Anna
Marie and Salvoro. This conclusion is simply not supported by the records and is therefore
Section 2 of Republic Act No. 8791,52 declares the State’s recognition of the "fiduciary nature of baseless.
banking that requires high standards of integrity and performance." It cannot be
overemphasized that the banking business is impressed with public interest. The trust and In these lights, we hold that Anna Marie is entitled to moral damages of ₱100,000.00. In cases
confidence of the public to the industry is given utmost importance.53Thus, the bank is under of breach of contract, moral damages are recoverable only if the defendant acted fraudulently
or in bad faith, or is guilty of gross negligence amounting to bad faith, or in clear disregard of (c) ₱250,741.82, as the outstanding balance of SA No. 6121200;
his contractual obligations.60 Anna Marie was able to establish the mental anguish and serious
anxiety that she suffered because of the PNB’s refusal to honor its obligations. (2) Legal interest of twelve percent (12%) per annum of the total actual damages from August
12, 2004 to June 30, 2013, and six percent (6o/o) per annum from July 1, 2013 until full
Anna Marie is likewise entitled to exemplary damages of ₱50,000.00. Article 2229 of the New satisfaction;
Civil Code imposes exemplary damages by way of example or correction for the public good. To
repeat, banks must treat the accounts of its depositors with meticulous care and always have in (3) ₱l00,000.00 as moral damages;
mind the fiduciary nature of its relationship with them.61Having failed to observe these, the (4) ₱50,000.00 as exemplary damages;
award of exemplary damages is justified.
(5) ₱l50,000.00 as attorney's fees; and
As exemplary damages are awarded herein62 and as Anna Marie was compelled to litigate to
protect her interests,63the award of attorney’s fees and expenses of litigation of ₱150,000.00 is (7) Costs of suit.
proper.
Let a copy of this Decision be furnished the Financial Consumers Protection Department of the
Finally, we impose legal interest pursuant to the guidelines in Nacar v. Gallery Frames.64 We Bangko Sentral ng Pilipinas, for information and possible action in accordance with the Bangko
held in that case that for interest awarded on actual and compensatory damages, the interest Sentral ng Pilipinas' mandate to protect the banking public.
rate is imposed as follows:
SO ORDERED.
1. When the obligation is breached, and it consists in the payment of a sum of money, i.e., a
loan or forbearance of money, the interest due should be that which may have been stipulated
in writing. Furthermore, the interest due shall itself earn legal interest from the time it is
judicially demanded. In the absence of stipulation, the rate of interest shall be 12% per
annum [changed to 6% per annumstarting July 1, 2013] to be computed from default, i.e., from
extrajudicial demand under and subject to the provisions of Article 1169 of the Civil Code.

xxxx

3. When the judgment of the court awarding a sum of money becomes final and executory, the
rate of legal interest x x x shall be 6% per annum from such finality until its satisfaction. x x x

We note that pursuant to the Bangko Sentral ng Pilipinas-Monetary Board Circular No. 799, the
legal interest rate is 6% per annum effective July 1, 2013. The new rate is applicable
prospectively; thus, the 12% per annum shall still apply until June 30, 2013.

In the present case, Anna Marie filed her complaint on August 12, 2004. PNB is therefore liable
for legal interest of 12% per annum from Augus t 12, 2004 until June 30, 2013, and 6% per
annum from July 1, 2013, until its full satisfaction.

WHEREFORE, the petition is GRANTED. The assailed December 16, 2011 decision and June 26,
2012 resolution of the Court of Appeals is hereby reversed. The October 26, 2010 decision of
the Regional Trial Court is REINSTATED with MODIFICATIONS. Thus, the Philippine National Bank
is ORDERED to pay Anna Marie Gumabon the following:

(1) Actual damages of:

(a) $10,058.01, as the outstanding balance of FXCTD No. 993902;

(b) $ 20,244.42, as the outstanding balance of FXCTD No. 993992; and

[G.R. No. 138569. September 11, 2003.] slip and check. The teller stamped the words "DUPLICATE" and "SAVING TELLER 6 SOLIDBANK
HEAD OFFICE" on the duplicate copy of the deposit slip. When Macaraya asked for the passbook,
THE CONSOLIDATED BANK and TRUST CORPORATION, Petitioner, v. COURT OF APPEALS and L.C. Teller No. 6 told Macaraya that someone got the passbook but she could not remember to
DIAZ and COMPANY, CPA’s, Respondents. whom she gave the passbook. When Macaraya asked Teller No. 6 if Calapre got the passbook,
Teller No. 6 answered that someone shorter than Calapre got the passbook. Calapre was then
DECISION standing beside Macaraya.

The Case Teller No. 6 handed to Macaraya a deposit slip dated 14 August 1991 for the deposit of a check
for P90,000 drawn on Philippine Banking Corporation ("PBC"). This PBC check of L.C. Diaz was a
check that it had "long closed." 4 PBC subsequently dishonored the check because of insufficient
Before us is a petition for review of the Decision 1 of the Court of Appeals dated 27 October funds and because the signature in the check differed from PBC’s specimen signature. Failing to
1998 and its Resolution dated 11 May 1999. The assailed decision reversed the Decision 2 of get back the passbook, Macaraya went back to her office and reported the matter to the
the Regional Trial Court of Manila, Branch 8, absolving petitioner Consolidated. Bank and Trust Personnel Manager of L.C. Diaz, Emmanuel Alvarez.
Corporation, now known as Solidbank Corporation ("Solidbank"), of any liability. The questioned
resolution of the appellate court denied the motion for reconsideration of Solidbank but The following day, 15 August 1991, L.C. Diaz through its Chief Executive Officer, Luis C. Diaz
modified the decision by deleting the award of exemplary damages, attorney’s fees, expenses ("Diaz"), called up Solidbank to stop any transaction using the same passbook until L.C. Diaz
of litigation and cost of suit.chanrob1es virtua1 1aw 1ibrary could open a new account. 5 On the same day, Diaz formally wrote Solidbank to make the same
request. It was also on the same day that L.C. Diaz learned of the unauthorized withdrawal the
The Facts day before, 14 August 1991, of P300,000 from its savings account. The withdrawal slip for the
P300,000 bore the signatures of the authorized signatories of L.C. Diaz, namely Diaz and Rustico
L. Murillo. The signatories, however, denied signing the withdrawal slip. A certain Noel Tamayo
received the P300,000.cralaw : red
Solidbank is a domestic banking corporation organized and existing under Philippine laws.
Private respondent L.C. Diaz and Company, CPA’s ("L.C. Diaz"), is a professional partnership In an Information 6 dated 5 September 1991, L.C. Diaz charged its messenger, Emerano Ilagan
engaged in the practice of accounting. ("Ilagan") and one Roscon Verdazola with Estafa through Falsification of Commercial Document.
The Regional Trial Court of Manila dismissed the criminal case after the City Prosecutor filed a
Sometime in March 1976, L.C. Diaz opened a savings account with Solidbank, designated as Motion to Dismiss on 4 August 1992.
Savings Account No. S/A 200-16872-6.
On 24 August 1992, L.C. Diaz through its counsel demanded from Solidbank the return of its
On 14 August 1991, L.C. Diaz through its cashier, Mercedes Macaraya ("Macaraya"), filled up a money. Solidbank refused.
savings (cash) deposit slip for P990 and a savings (checks) deposit slip for P50. Macaraya
instructed the messenger of L.C. Diaz, Ismael Calapre ("Calapre"), to deposit the money with On 25 August 1992, L.C. Diaz filed a Complaint 7 for Recovery of a Sum of Money against
Solidbank. Macaraya also gave Calapre the Solidbank passbook. Solidbank with the Regional Trial Court of Manila, Branch 8. After trial, the trial court rendered
on 28 December 1994 a decision absolving Solidbank and dismissing the complaint.
Calapre went to Solidbank and presented to Teller No. 6 the two deposit slips and the passbook.
The teller acknowledged receipt of the deposit by returning to Calapre the duplicate copies of L.C. Diaz then appealed 8 to the Court of Appeals. On 27 October 1998, the Court of Appeals
the two deposit slips. Teller No. 6 stamped the deposit slips with the words "DUPLICATE" and issued its Decision reversing the decision of the trial court.
"SAVING TELLER 6 SOLIDBANK HEAD OFFICE." Since the transaction took time and Calapre had
to make another deposit for L.C. Diaz with Allied Bank, he left the passbook with Solidbank. On 11 May 1999, the Court of Appeals issued its Resolution denying the motion for
Calapre then went to Allied Bank. When Calapre returned to Solidbank to retrieve the passbook, reconsideration of Solidbank. The appellate court, however, modified its decision by deleting
Teller No. 6 informed him that "somebody got the passbook. 3 Calapre went back to L.C. Diaz the award of exemplary damages and attorney’s fees.
and reported the incident to Macaraya.
The Ruling of the Trial Court
Macaraya immediately prepared a deposit slip in duplicate copies with a check of P200,000.
Macaraya, together with Calapre, went to Solidbank and presented to Teller No. 6 the deposit In absolving Solidbank, the trial court applied the rules on savings account written on the
passbook. The rules state that "possession of this book shall raise the presumption of ownership P82,554 without any separate letter of authorization or any communication with Solidbank that
and any payment or payments made by the bank upon the production of the said book and the money be converted into a manager’s check.
entry therein of the withdrawal shall have the same effect as if made to the depositor
personally." 9 The trial court further justified the dismissal of the complaint by holding that the case was a last
ditch effort of L.C. Diaz to recover P300,000 after the dismissal of the criminal case against
At the time of the withdrawal, a certain Noel Tamayo was not only in possession of the Ilagan.
passbook, he also presented a withdrawal slip with the signatures of the authorized signatories
of L.C. Diaz. The specimen signatures of these persons were in the signature cards. The teller The dispositive portion of the decision of the trial court reads:chanrob1es virtual 1aw library
stamped the withdrawal slip with the words "Saving Teller No. 5." The teller then passed on the
withdrawal slip to Genere Manuel ("Manuel") for authentication. Manuel verified the signatures IN VIEW OF THE FOREGOING, judgment is hereby rendered DISMISSING the complaint.
on the withdrawal slip. The withdrawal slip was then given to another officer who compared the
signatures on the withdrawal slip with the specimen on the signature cards. The trial court The Court further renders judgment in favor of defendant bank pursuant to its counterclaim the
concluded that Solidbank acted with care and observed the rules on savings account when it amount of Thirty Thousand Pesos (P30,000.00) as attorney’s fees.
allowed the withdrawal of P300,000 from the savings account of L.C. Diaz.
With costs against plaintiff.
The trial court pointed out that the burden of proof now shifted to L.C. Diaz to prove that the
signatures on the withdrawal slip were forged. The trial court admonished L.C. Diaz for not SO ORDERED. 12
offering in evidence the National Bureau of Investigation ("NBI") report on the authenticity of
the signatures on the withdrawal slip for P300,000. The trial court believed that L.C. Diaz did not The Ruling of the Court of Appeals
offer this evidence because it is derogatory to its action.
The Court of Appeals ruled that Solidbank’s negligence was the proximate cause of the
Another provision of the rules on savings account states that the depositor must keep the unauthorized withdrawal of P300,000 from the savings account of L.C. Diaz. The appellate court
passbook "under lock and key." 10 When another person presents the passbook for withdrawal reached this conclusion after applying the provision of the Civil Code on quasi-delict, to
prior to Solidbank’s receipt of the notice of loss of the passbook, that person is considered as wit:chanrob1es virtual 1aw library
the owner of the passbook. The trial court ruled that the passbook presented during the
questioned transaction was "now out of the lock and key and presumptively ready for a business Article 2176. Whoever by act or omission causes damage to another, there being fault or
transaction." 11 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
Solidbank did not have any participation in the custody and care of the passbook. The trial court provisions of this chapter.
believed that Solidbank’s act of allowing the withdrawal of P300,000 was not the direct and
proximate cause of the loss. The trial court held that L.C. Diaz’s negligence caused the The appellate court held that the three elements of a quasi-delict are present in this case,
unauthorized withdrawal. Three facts establish L.C. Diaz’s negligence: (1) the possession of the namely: (a) damages suffered by the plaintiff; (b) fault or negligence of the defendant, or some
passbook by a person other than the depositor L.C. Diaz; (2) the presentation of a signed other person for whose acts he must respond; and (c) the connection of cause and effect
withdrawal receipt by an unauthorized person; and (3) the possession by an unauthorized between the fault or negligence of the defendant and the damage incurred by the plaintiff.
person of a PBC check "long closed" by L.C. Diaz, which check was deposited on the day of the
fraudulent withdrawal. The Court of Appeals pointed out that the teller of Solidbank who received the withdrawal slip
for P300,000 allowed the withdrawal without making the necessary inquiry. The appellate court
The trial court debunked L.C. Diaz’s contention that Solidbank did not follow the precautionary stated that the teller, who was not presented by Solidbank during trial, should have called up
procedures observed by the two parties whenever L.C. Diaz withdrew significant amounts from the depositor because the money to be withdrawn was a significant amount. Had the teller
its account. L.C. Diaz claimed that a letter must accompany withdrawals of more than P20,000. called up L.C. Diaz, Solidbank would have known that the withdrawal was unauthorized. The
The letter must request Solidbank to allow the withdrawal and convert the amount to a teller did not even verify the identity of the impostor who made the withdrawal. Thus, the
manager’s check. The bearer must also have a letter authorizing him to withdraw the same appellate court found Solidbank liable for its negligence in the selection and supervision of its
amount. Another person driving a car must accompany the bearer so that he would not walk employees.
from Solidbank to the office in making the withdrawal. The trial court pointed out that L.C. Diaz
disregarded these precautions in its past withdrawal. On 16 July 1991, L.C. Diaz withdrew The appellate court ruled that while L.C. Diaz was also negligent in entrusting its deposits to its
messenger and its messenger in leaving the passbook with the teller, Solidbank could not escape The Issues
liability because of the doctrine of "last clear chance." Solidbank could have averted the injury
suffered by L.C. Diaz had it called up L.C. Diaz to verify the withdrawal.

The appellate court ruled that the degree of diligence required from Solidbank is more than that Solidbank seeks the review of the decision and resolution of the Court of Appeals on these
of a good father of a family. The business and functions of banks are affected with public grounds:chanrob1es virtual 1aw library
interest. Banks are obligated to treat the accounts of their depositors with meticulous care,
always having in mind the fiduciary nature of their relationship with their clients. The Court of I. THE COURT OF APPEALS ERRED IN HOLDING THAT PETITIONER BANK SHOULD SUFFER THE
Appeals found Solidbank remiss in its duty, violating its fiduciary relationship with L.C. Diaz. LOSS BECAUSE ITS TELLER SHOULD HAVE FIRST CALLED PRIVATE RESPONDENT BY TELEPHONE
BEFORE IT ALLOWED THE WITHDRAWAL OF P300,000.00 TO RESPONDENT’S MESSENGER
The dispositive portion of the decision of the Court of Appeals reads:chanrob1es virtual 1aw EMERANO ILAGAN, SINCE THERE IS NO AGREEMENT BETWEEN THE PARTIES IN THE OPERATION
library OF THE SAVINGS ACCOUNT, NOR IS THERE ANY BANKING LAW, WHICH MANDATES THAT A
BANK TELLER SHOULD FIRST CALL UP THE DEPOSITOR BEFORE ALLOWING A WITHDRAWAL OF
WHEREFORE, premises considered, the decision appealed from is hereby REVERSED and a new A BIG AMOUNT IN A SAVINGS ACCOUNT.
one entered.
II. THE COURT OF APPEALS ERRED IN APPLYING THE DOCTRINE OF LAST CLEAR CHANCE AND IN
1. Ordering defendant-appellee Consolidated Bank and Trust Corporation. to pay plaintiff- HOLDING THAT PETITIONER BANK’S TELLER HAD THE LAST OPPORTUNITY TO WITHHOLD THE
appellant the sum of Three Hundred Thousand Pesos (P300,000.00), with interest thereon at WITHDRAWAL WHEN IT IS UNDISPUTED THAT THE TWO SIGNATURES OF RESPONDENT ON THE
the rate of 12% per annum from the date of filing of the complaint until paid, the sum of WITHDRAWAL SLIP ARE GENUINE AND PRIVATE RESPONDENT’S PASSBOOK WAS DULY
P20,000.00 as exemplary damages, and P20,000.00 as attorney’s fees and expenses of litigation PRESENTED, AND CONTRARIWISE RESPONDENT WAS NEGLIGENT IN THE SELECTION AND
as well as the cost of suit; and SUPERVISION OF ITS MESSENGER EMERANO ILAGAN, AND IN THE SAFEKEEPING OF ITS CHECKS
AND OTHER FINANCIAL DOCUMENTS.
2. Ordering the dismissal of defendant-appellee’s counterclaim in the amount of P30,000.00 as
attorney’s fees. III. THE COURT OF APPEALS ERRED IN NOT FINDING THAT THE INSTANT CASE IS A LAST DITCH
EFFORT OF PRIVATE RESPONDENT TO RECOVER ITS P300,000.00 AFTER FAILING IN ITS EFFORTS
SO ORDERED. 13 TO RECOVER THE SAME FROM ITS EMPLOYEE EMERANO ILAGAN.

Acting on the motion for reconsideration of Solidbank, the appellate court affirmed its decision IV. THE COURT OF APPEALS ERRED IN NOT MITIGATING THE DAMAGES AWARDED AGAINST
but modified the award of damages. The appellate court deleted the award of exemplary PETITIONER UNDER ARTICLE 2197 OF THE CIVIL CODE, NOTWITHSTANDING ITS FINDING THAT
damages and attorney’s fees. Invoking Article 2231 14 of the Civil Code, the appellate court PETITIONER BANK’S NEGLIGENCE WAS ONLY CONTRIBUTORY. 16
ruled that exemplary damages could be granted if the defendant acted with gross negligence.
Since Solidbank was guilty of simple negligence only, the award of exemplary damages was not The Ruling of the Court
justified. Consequently, the award of attorney’s fees was also disallowed pursuant to Article
2208 of the Civil Code. The expenses of litigation and cost of suit were also not imposed on The petition is partly meritorious.
Solidbank.
Solidbank’s Fiduciary Duty under the Law
The dispositive portion of the Resolution reads as follows:chanrob1es virtual 1aw library
The rulings of the trial court and the Court of Appeals conflict on the application of the law. The
WHEREFORE, foregoing considered, our decision dated October 27, 1998 is affirmed with trial court pinned the liability on L.C. Diaz based on the provisions of the rules on savings
modification by deleting the award of exemplary damages and attorney’s fees, expenses of account, a recognition of the contractual relationship between Solidbank and L.C. Diaz, the
litigation and cost of suit.chanrob1es virtua1 1aw 1ibrary latter being a depositor of the former. On the other hand, the Court of Appeals applied the law
on quasi-delict to determine who between the two parties was ultimately negligent. The law on
SO ORDERED. 15 quasi-delict or culpa aquiliana is generally applicable when there is no pre-existing contractual
relationship between the parties.
Hence, this petition.
We hold that Solidbank is liable for breach of contract due to negligence, or culpa contractual.
The contract between the bank and its depositor is governed by the provisions of the Civil Code
on simple loan. 17 Article 1980 of the Civil Code expressly provides that." . . savings . . . deposits
of money in banks and similar institutions shall be governed by the provisions concerning simple
loan." There is a debtor-creditor relationship between the bank and its depositor. The bank is
the debtor and the depositor is the creditor. The depositor lends the bank money and the bank
agrees to pay the depositor on demand. The savings deposit agreement between the bank and
the depositor is the contract that determines the rights and obligations of the parties.
The law imposes on banks high standards in view of the fiduciary nature of banking. Section 2
of Republic Act No. 8791 ("RA 8791"), 18 which took effect on 13 June 2000, declares that the
State recognizes the "fiduciary nature of banking that requires high standards of integrity and
performance." 19 This new provision in the general banking law, introduced in 2000, is a
statutory affirmation of Supreme Court decisions, starting with the 1990 case of Simex
International v. Court of Appeals, 20 holding that "the bank is under obligation to treat the
accounts of its depositors with meticulous care, always having in mind the fiduciary nature of
their relationship. 21
This fiduciary relationship means that the bank’s obligation to observe "high standards of
integrity and performance" is deemed written into every deposit agreement between a bank
and its depositor. The fiduciary nature of banking requires banks to assume a degree of diligence
higher than that of a good father of a family. Article 1172 of the Civil Code states that the degree
of diligence required of an obligor is that prescribed by law or contract, and absent such
stipulation then the diligence of a good father of a family. 22 Section 2 of RA 8791 prescribes
the statutory diligence required from banks — that banks must observe "high standards of
integrity and performance" in servicing their depositors. Although RA 8791 took effect almost
nine years after the unauthorized withdrawal of the P300,000 from L.C. Diaz’s savings account,
jurisprudence 23 at the time of the withdrawal already imposed on banks the same high
standard of diligence required under RA No. 8791.
However, the fiduciary nature of a bank-depositor relationship does not convert the contract
between the bank and its depositors from a simple loan to a trust agreement, whether express
or implied. Failure by the bank to pay the depositor is failure to pay a simple loan, and not a
breach of trust. 24 The law simply imposes on the bank a higher standard of integrity and
performance in complying with its obligations under the contract of simple loan, beyond those
required of non-bank debtors under a similar contract of simple loan.
The fiduciary nature of banking does not convert a simple loan into a trust agreement because
banks do not accept deposits to enrich depositors but to earn money for themselves. The law
allows banks to offer the lowest possible interest rate to depositors while charging the highest
possible interest rate on their own borrowers. The interest spread or differential belongs to the
bank and not to the depositors who are not cestui que trust of banks. If depositors are cestui
que trust of banks, then the interest spread or income belongs to the depositors, a situation
that Congress certainly did not intend in enacting Section 2 of RA 8791.
Solidbank’s Breach of its Contractual Obligation
Article 1172 of the Civil Code provides that "responsibility arising from negligence in the
performance of every kind of obligation is demandable." For breach of the savings deposit
agreement due to negligence, or culpa contractual, the bank is liable to its depositor.
Calapre left the passbook with Solidbank because the "transaction took time" and he had to go
to Allied Bank for another transaction. The passbook was still in the hands of the employees of
Solidbank for the processing of the deposit when Calapre left Solidbank. Solidbank’s rules on
savings account require that the "deposit book should be carefully guarded by the depositor
and kept under lock and key, if possible." When the passbook is in the possession of Solidbank’s
tellers during withdrawals, the law imposes on Solidbank and its tellers an even higher degree
of diligence in safeguarding the passbook.
Likewise, Solidbank’s tellers must exercise a high degree of diligence in insuring that they return
the passbook only to the depositor or his authorized representative. The tellers know, or should
know, that the rules on savings account provide that any person in possession of the passbook
is presumptively its owner. If the tellers give the passbook to the wrong person, they would be
clothing that person presumptive ownership of the passbook, facilitating unauthorized
withdrawals by that person. For failing to return the passbook to Calapre, the authorized
representative of L.C. Diaz, Solidbank and Teller No. 6 presumptively failed to observe such high
degree of diligence in safeguarding the passbook, and in insuring its return to the party
authorized to receive the same.
In culpa contractual, once the plaintiff proves a breach of contract, there is a presumption that
the defendant was at fault or negligent. The burden is on the defendant to prove that he was
not at fault or negligent. In contrast, in culpa aquiliana the plaintiff has the burden of proving
that the defendant was negligent. In the present case, L.C. Diaz has established that Solidbank
breached its contractual obligation to return the passbook only to the authorized representative
of L.C. Diaz. There is thus a presumption that Solidbank was at fault and its teller was negligent
in not returning the passbook to Calapre. The burden was on Solidbank to prove that there was
no negligence on its part or its employees.
Solidbank failed to discharge its burden. Solidbank did not present to the trial court Teller No.
6, the teller with whom Calapre left the passbook and who was supposed to return the passbook
to him. The record does not indicate that Teller No. 6 verified the identity of the person who
retrieved the passbook. Solidbank also failed to adduce in evidence its standard procedure in
verifying the identity of the person retrieving the passbook, if there is such a procedure, and
that Teller No. 6 implemented this procedure in the present case.
Solidbank is bound by the negligence of its employees under the principle of respondeat
superior or command responsibility. The defense of exercising the required diligence in the
selection and supervision of employees is not a complete defense in culpa contractual, unlike in
culpa aquiliana.25cralaw:red
 that it is the usual practice of Solidbank to call up its clients to verify a withdrawal of a large
The bank must not only exercise "high standards of integrity and performance," it must also amount of money. L.C. Diaz failed to do so.
insure that its employees do likewise because this is the only way to insure that the bank will
comply with its fiduciary duty. Solidbank failed to present the teller who had the duty to return Teller No. 5 who processed the withdrawal could not have been put on guard to verify the
to Calapre the passbook, and thus failed to prove that this teller exercised the "high standards withdrawal. Prior to the withdrawal of P300,000, the impostor deposited with Teller No. 6 the
of integrity and performance" required of Solidbank’s employees.chanrob1es virtua1 1aw P90,000 PBC check, which later bounced. The impostor apparently deposited a large amount of
1ibrary money to deflect suspicion from the withdrawal of a much bigger amount of money. The
appellate court thus erred when it imposed on Solidbank the duty to call up L.C. Diaz to confirm
Proximate Cause of the Unauthorized Withdrawal the withdrawal when no law requires this from banks and when the teller had no reason to be
suspicious of the transaction.
Another point of disagreement between the trial and appellate courts is the proximate cause of
the unauthorized withdrawal. The trial court believed that L.C. Diaz’s negligence in not securing Solidbank continues to foist the defense that Ilagan made the withdrawal. Solidbank claims that
its passbook under lock and key was the proximate cause that allowed the impostor to withdraw since Ilagan was also a messenger of L.C. Diaz, he was familiar with its teller so that there was
the P300,000. For the appellate court, the proximate cause was the teller’s negligence in no more need for the teller to verify the withdrawal. Solidbank relies on the following
processing the withdrawal without first verifying with L.C. Diaz. We do not agree with either statements in the Booking and Information Sheet of Emerano Ilagan:chanrob1es virtual 1aw
court. library

Proximate cause is that cause which, in natural and continuous sequence, unbroken by any . . . Ilagan also had with him (before the withdrawal) a forged check of PBC and indicated the
efficient intervening cause, produces the injury and without which the result would not have amount of P90,000 which he deposited in favor of L.C. Diaz and Company. After successfully
occurred. 26 Proximate cause is determined by the facts of each case upon mixed withdrawing this large sum of money, Accused Ilagan gave alias Rey (Noel Tamayo) his share of
considerations of logic, common sense, policy and precedent. 27 the loot. Ilagan then hired a taxicab in the amount of P1,000 to transport him (Ilagan) to his
home province at Bauan, Batangas. Ilagan extravagantly and lavishly spent his money but a big
L.C. Diaz was not at fault that the passbook landed in the hands of the impostor. Solidbank was part of his loot was wasted in cockfight and horse racing. Ilagan was apprehended and meekly
in possession of the passbook while it was processing the deposit. After completion of the admitted his guilt. 28 (Emphasis supplied.)
transaction, Solidbank had the contractual obligation to return the passbook only to Calapre,
the authorized representative of L.C. Diaz. Solidbank failed to fulfill its contractual obligation L.C. Diaz refutes Solidbank’s contention by pointing out that the person who withdrew the
because it gave the passbook to another person. P300,000 was a certain Noel Tamayo. Both the trial and appellate courts stated that this Noel
Tamayo presented the passbook with the withdrawal slip.
Solidbank’s failure to return the passbook to Calapre made possible the withdrawal of the
P300,000 by the impostor who took possession of the passbook. Under Solidbank’s rules on We uphold the finding of the trial and appellate courts that a certain Noel Tamayo withdrew
savings account, mere possession of the passbook raises the presumption of ownership. It was the P300,000. The Court is not a trier of facts. We find no justifiable reason to reverse the factual
the negligent act of Solidbank’s Teller No. 6 that gave the impostor presumptive ownership of finding of the trial court and the Court of Appeals. The tellers who processed the deposit of the
the passbook. Had the passbook not fallen into the hands of the impostor, the loss of P300,000 P90,000 check and the withdrawal of the P300,000 were not presented during trial to
would not have happened. Thus, the proximate cause of the unauthorized withdrawal was substantiate Solidbank’s claim that Ilagan deposited the check and made the questioned
Solidbank’s negligence in not returning the passbook to Calapre. withdrawal. Moreover, the entry quoted by Solidbank does not categorically state that Ilagan
presented the withdrawal slip and the passbook.
We do not subscribe to the appellate court’s theory that the proximate cause of the
unauthorized withdrawal was the teller’s failure to call up L.C. Diaz to verify the withdrawal. Doctrine of Last Clear Chance
Solidbank did not have the duty to call up L.C. Diaz to confirm the withdrawal. There is no
arrangement between Solidbank and L.C. Diaz to this effect. Even the agreement between The doctrine of last clear chance states that where both parties are negligent but the negligent
Solidbank and L.C. Diaz pertaining to measures that the parties must observe whenever act of one is appreciably later than that of the other, or where it is impossible to determine
withdrawals of large amounts are made does not direct Solidbank to call up L.C. Diaz. whose fault or negligence caused the loss, the one who had the last clear opportunity to avoid
the loss but failed to do so, is chargeable with the loss. 29 Stated differently, the antecedent
There is no law mandating banks to call up their clients whenever their representatives negligence of the plaintiff does not preclude him from recovering damages caused by the
withdraw significant amounts from their accounts. L.C. Diaz therefore had the burden to prove supervening negligence of the defendant, who had the last fair chance to prevent the impending
harm by the exercise of due diligence. 30

We do not apply the doctrine of last clear chance to the present case. Solidbank is liable for
breach of contract due to negligence in the performance of its contractual obligation to L.C.
Diaz. This is a case of culpa contractual, where neither the contributory negligence of the
plaintiff nor his last clear chance to avoid the loss, would exonerate the defendant from liability.
31 Such contributory negligence or last clear chance by the plaintiff merely serves to reduce the
recovery of damages by the plaintiff but does not exculpate the defendant from his breach of
contract. 32

Mitigated Damages

Under Article 1172, "liability (for culpa contractual) may be regulated by the courts, according
to the circumstances." This means that if the defendant exercised the proper diligence in the
selection and supervision of its employee, or if the plaintiff was guilty of contributory
negligence, then the courts may reduce the award of damages. In this case, L.C. Diaz was guilty
of contributory negligence in allowing a withdrawal slip signed by its authorized signatories to
fall into the hands of an impostor. Thus, the liability of Solidbank should be reduced.

In Philippine Bank of Commerce v. Court of Appeals, 33 where the Court held the depositor
guilty of contributory negligence, we allocated the damages between the depositor and the
bank on a 40-60 ratio. Applying the same ruling to this case, we hold that L.C. Diaz must shoulder
40% of the actual damages awarded by the appellate court. Solidbank must pay he other 60%
of the actual damages.

WHEREFORE, the decision of the Court of Appeals is AFFIRMED with MODIFICATION. Petitioner
Solidbank Corporation shall pay private respondent L.C. Diaz and Company, CPA’s only 60% of
the actual damages awarded by the Court of Appeals. The remaining 40% of the actual damages
shall be borne by private respondent L.C. Diaz and Company, CPA’s. Proportionate
costs.chanrob1es virtua1 1aw 1ibrary

SO ORDERED.
FIRST DIVISION
G.R. No. 138334. August 25, 2003
ESTELA L. CRISOSTOMO, petitioner, vs. the Court of Appeals and CARAVAN TRAVEL & TOURS
INTERNATIONAL, INC., respondents.
DECISION
YNARES-SANTIAGO, J.:
In May 1991, petitioner Estela L. Crisostomo contracted the services of respondent Caravan
Travel and Tours International, Inc. to arrange and facilitate her booking, ticketing and
accommodation in a tour dubbed Jewels of Europe. The package tour included the countries of
England, Holland, Germany, Austria, Liechstenstein, Switzerland and France at a total cost of
P74,322.70. Petitioner was given a 5% discount on the amount, which included airfare, and the
booking fee was also waived because petitioners niece, Meriam Menor, was respondent
companys ticketing manager.
Pursuant to said contract, Menor went to her aunts residence on June 12, 1991 a Wednesday
to deliver petitioners travel documents and plane tickets. Petitioner, in turn, gave Menor the
full payment for the package tour. Menor then told her to be at the Ninoy Aquino International
Airport (NAIA) on Saturday,two hours before her flight on board British Airways.
Without checking her travel documents, petitioner went to NAIA on Saturday, June 15, 1991, to
take the flight for the first leg of her journey from Manila to Hongkong. To petitioners dismay,
she discovered that the flight she was supposed to take had already departed the previous day.
She learned that her plane ticket was for the flight scheduled on June 14, 1991. She thus called
up Menor to complain.
Subsequently, Menor prevailed upon petitioner to take another tour the British Pageant which
included England, Scotland and Wales in its itinerary. For this tour package, petitioner was asked
anew to pay US$785.00 or P20,881.00 (at the then prevailing exchange rate of P26.60). She
gave respondent US$300 or P7,980.00 as partial payment and commenced the trip in July 1991.
Upon petitioners return from Europe, she demanded from respondent the reimbursement of
P61,421.70, representing the difference between the sum she paid for Jewels of Europe and
the amount she owed respondent for the British Pageant tour. Despite several demands,
respondent company refused to reimburse the amount, contending that the same was non-
refundable.1 Petitioner was thus constrained to file a complaint against respondent for breach
of contract of carriage and damages, which was docketed as Civil Case No. 92-133 and raffled
to Branch 59 of the Regional Trial Court of Makati City.
In her complaint,2 petitioner alleged that her failure to join Jewels of Europe was due to
respondents fault since it did not clearly indicate the departure date on the plane ticket.
Respondent was also negligent in informing her of the wrong flight schedule through its
employee Menor. She insisted that the British Pageant was merely a substitute for the Jewels
of Europe tour, such that the cost of the former should be properly set-off against the sum paid
for the latter.
For its part, respondent company, through its Operations Manager, Concepcion Chipeco,
denied responsibility for petitioners failure to join the first tour. Chipeco insisted that petitioner
was informed of the correct departure date, which was clearly and legibly printed on the plane
ticket. The travel documents were given to petitioner two days ahead of the scheduled trip.
Petitioner had only herself to blame for missing the flight, as she did not bother to read or
confirm her flight schedule as printed on the ticket.
Respondent explained that it can no longer reimburse the amount paid for Jewels of Europe,
considering that the same had already been remitted to its principal in Singapore, Lotus Travel
Ltd., which had already billed the same even if petitioner did not join the tour. Lotus European
tour organizer, Insight International Tours Ltd., determines the cost of a package tour based on
a minimum number of projected participants. For this reason, it is accepted industry practice to
disallow refund for individuals who failed to take a booked tour.3cräläwvirtualibräry
Lastly, respondent maintained that the British Pageant was not a substitute for the package tour
that petitioner missed. This tour was independently procured by petitioner after realizing that
she made a mistake in missing her flight for Jewels of Europe. Petitioner was allowed to make a
partial payment of only US$300.00 for the second tour because her niece was then an employee
of the travel agency. Consequently, respondent prayed that petitioner be ordered to pay the
balance of P12,901.00 for the British Pageant package tour.
After due proceedings, the trial court rendered a decision,4 the dispositive part of which reads:
WHEREFORE, premises considered, judgment is hereby rendered as follows:
1. Ordering the defendant to return and/or refund to the plaintiff the amount of Fifty Three
Thousand Nine Hundred Eighty Nine Pesos and Forty Three Centavos (P53,989.43) with legal
interest thereon at the rate of twelve percent (12%) per annum starting January 16, 1992, the
date when the complaint was filed;
2. Ordering the defendant to pay the plaintiff the amount of Five Thousand (P5,000.00) Pesos
as and for reasonable attorneys fees;
3. Dismissing the defendants counterclaim, for lack of merit; and
4. With costs against the defendant.
SO ORDERED.5cräläwvirtualibräry
The trial court held that respondent was negligent in erroneously advising petitioner of her
departure date through its employee, Menor, who was not presented as witness to rebut
petitioners testimony. However, petitioner should have verified the exact date and time of
departure by looking at her ticket and should have simply not relied on Menors verbal
representation. The trial court thus declared that petitioner was guilty of contributory
negligence and accordingly, deducted 10% from the amount being claimed as refund.
Respondent appealed to the Court of Appeals, which likewise found both parties to be at fault.
However, the appellate court held that petitioner is more negligent than respondent because
as a lawyer and well-traveled person, she should have known better than to simply rely on what
was told to her. This being so, she is not entitled to any form of damages. Petitioner also
forfeited her right to the Jewels of Europe tour and must therefore pay respondent the balance
of the price for the British Pageant tour. The dispositive portion of the judgment appealed from
reads as follows:
WHEREFORE, premises considered, the decision of the Regional Trial Court dated October 26,
1995 is hereby REVERSED and SET ASIDE. A new judgment is hereby ENTERED requiring the
plaintiff-appellee to pay to the defendant-appellant the amount of P12,901.00, representing
the balance of the price of the British Pageant Package Tour, the same to earn legal interest at
the rate of SIX PERCENT (6%) per annum, to be computed from the time the counterclaim was
filed until the finality of this decision. After this decision becomes final and executory, the rate
of TWELVE PERCENT (12%) interest per annum shall be additionally imposed on the total
obligation until payment thereof is satisfied. The award of attorneys fees is DELETED. Costs
against the plaintiff-appellee.
SO ORDERED.6cräläwvirtualibräry
Upon denial of her motion for reconsideration,7 petitioner filed the instant petition under Rule
45 on the following grounds:
I company, this does not mean that the latter ipso facto is a common carrier. At most, respondent
It is respectfully submitted that the Honorable Court of Appeals committed a reversible error in
reversing and setting aside the decision of the trial court by ruling that the petitioner is not
entitled to a refund of the cost of unavailed Jewels of Europe tour she being equally, if not more,
negligent than the private respondent, for in the contract of carriage the common carrier is
obliged to observe utmost care and extra-ordinary diligence which is higher in degree than the
ordinary diligence required of the passenger. Thus, even if the petitioner and private
respondent were both negligent, the petitioner cannot be considered to be equally, or worse,
more guilty than the private respondent. At best, petitioners negligence is only contributory
while the private respondent [is guilty] of gross negligence making the principle of pari delicto
inapplicable in the case;
II
The Honorable Court of Appeals also erred in not ruling that the Jewels of Europe tour was not
indivisible and the amount paid therefor refundable;
III
The Honorable Court erred in not granting to the petitioner the consequential damages due her
as a result of breach of contract of carriage.8cräläwvirtualibräry
Petitioner contends that respondent did not observe the standard of care required of a common
carrier when it informed her wrongly of the flight schedule. She could not be deemed more
negligent than respondent since the latter is required by law to exercise extraordinary diligence
in the fulfillment of its obligation. If she were negligent at all, the same is merely contributory
and not the proximate cause of the damage she suffered. Her loss could only be attributed to
respondent as it was the direct consequence of its employees gross negligence.
Petitioners contention has no merit.
By definition, a contract of carriage or transportation is one whereby a certain person or
association of persons obligate themselves to transport persons, things, or news from one place
to another for a fixed price.9 Such person or association of persons are regarded as carriers and
are classified as private or special carriers and common or public carriers.10 A common carrier
is defined under Article 1732 of the Civil Code as persons, corporations, firms or associations
engaged in the business of carrying or transporting passengers or goods or both, by land, water
or air, for compensation, offering their services to the public.
It is obvious from the above definition that respondent is not an entity engaged in the business
of transporting either passengers or goods and is therefore, neither a private nor a common
carrier. Respondent did not undertake to transport petitioner from one place to another since
its covenant with its customers is simply to make travel arrangements in their behalf.
Respondents services as a travel agency include procuring tickets and facilitating travel permits
or visas as well as booking customers for tours.
While petitioner concededly bought her plane ticket through the efforts of respondent
acted merely as an agent of the airline, with whom petitioner ultimately contracted for her
carriage to Europe. Respondents obligation to petitioner in this regard was simply to see to it
that petitioner was properly booked with the airline for the appointed date and time. Her
transport to the place of destination, meanwhile, pertained directly to the airline.
The object of petitioners contractual relation with respondent is the latters service of arranging
and facilitatingpetitioners booking, ticketing and accommodation in the package tour. In
contrast, the object of a contract of carriage is the transportation of passengers or goods. It is
in this sense that the contract between the parties in this case was an ordinary one for services
and not one of carriage. Petitioners submission is premised on a wrong assumption.
The nature of the contractual relation between petitioner and respondent is determinative of
the degree of care required in the performance of the latters obligation under the contract. For
reasons of public policy, a common carrier in a contract of carriage is bound by law to carry
passengers as far as human care and foresight can provide using the utmost diligence of very
cautious persons and with due regard for all the circumstances.11 As earlier stated, however,
respondent is not a common carrier but a travel agency. It is thus not bound under the law to
observe extraordinary diligence in the performance of its obligation, as petitioner claims.
Since the contract between the parties is an ordinary one for services, the standard of care
required of respondent is that of a good father of a family under Article 1173 of the Civil
Code.12 This connotes reasonable care consistent with that which an ordinarily prudent person
would have observed when confronted with a similar situation. The test to determine whether
negligence attended the performance of an obligation is: did the defendant in doing the alleged
negligent act use that reasonable care and caution which an ordinarily prudent person would
have used in the same situation? If not, then he is guilty of negligence.13cräläwvirtualibräry
In the case at bar, the lower court found Menor negligent when she allegedly informed
petitioner of the wrong day of departure. Petitioners testimony was accepted as indubitable
evidence of Menors alleged negligent act since respondent did not call Menor to the witness
stand to refute the allegation. The lower court applied the presumption under Rule 131, Section
3 (e)14 of the Rules of Court that evidence willfully suppressed would be adverse if produced
and thus considered petitioners uncontradicted testimony to be sufficient proof of her claim.
On the other hand, respondent has consistently denied that Menor was negligent and maintains
that petitioners assertion is belied by the evidence on record. The date and time of departure
was legibly written on the plane ticket and the travel papers were delivered two days in advance
precisely so that petitioner could prepare for the trip. It performed all its obligations to enable
petitioner to join the tour and exercised due diligence in its dealings with the latter.
We agree with respondent.
Respondents failure to present Menor as witness to rebut petitioners testimony could not give
rise to an inference unfavorable to the former. Menor was already working in France at the time
of the filing of the complaint,15 thereby making it physically impossible for respondent to
present her as a witness. Then too, even if it were possible for respondent to secure Menors
testimony, the presumption under Rule 131, Section 3(e) would still not apply. The opportunity
and possibility for obtaining Menors testimony belonged to both parties, considering that
Menor was not just respondents employee, but also petitioners niece. It was thus error for the
lower court to invoke the presumption that respondent willfully suppressed evidence under
Rule 131, Section 3(e). Said presumption would logically be inoperative if the evidence is not
intentionally omitted but is simply unavailable, or when the same could have been obtained by
both parties.16cräläwvirtualibräry
In sum, we do not agree with the finding of the lower court that Menors negligence concurred
with the negligence of petitioner and resultantly caused damage to the latter. Menors
negligence was not sufficiently proved, considering that the only evidence presented on this
score was petitioners uncorroborated narration of the events. It is well-settled that the party
alleging a fact has the burden of proving it and a mere allegation cannot take the place of
evidence.17 If the plaintiff, upon whom rests the burden of proving his cause of action, fails to
show in a satisfactory manner facts upon which he bases his claim, the defendant is under no
obligation to prove his exception or defense.18cräläwvirtualibräry
Contrary to petitioners claim, the evidence on record shows that respondent exercised due
diligence in performing its obligations under the contract and followed standard procedure in
rendering its services to petitioner. As correctly observed by the lower court, the plane
ticket19 issued to petitioner clearly reflected the departure date and time, contrary to
petitioners contention. The travel documents, consisting of the tour itinerary, vouchers and
instructions, were likewise delivered to petitioner two days prior to the trip. Respondent also
properly booked petitioner for the tour, prepared the necessary documents and procured the
plane tickets. It arranged petitioners hotel accommodation as well as food, land transfers and
sightseeing excursions, in accordance with its avowed undertaking.
Therefore, it is clear that respondent performed its prestation under the contract as well as
everything else that was essential to book petitioner for the tour. Had petitioner exercised due
diligence in the conduct of her affairs, there would have been no reason for her to miss the
flight. Needless to say, after the travel papers were delivered to petitioner, it became incumbent
upon her to take ordinary care of her concerns. This undoubtedly would require that she at least
read the documents in order to assure herself of the important details regarding the trip.
The negligence of the obligor in the performance of the obligation renders him liable for
damages for the resulting loss suffered by the obligee. Fault or negligence of the obligor consists
in his failure to exercise due care and prudence in the performance of the obligation as the
nature of the obligation so demands.20 There is no fixed standard of diligence applicable to each
and every contractual obligation and each case must be determined upon its particular facts.
The degree of diligence required depends on the circumstances of the specific obligation and
whether one has been negligent is a question of fact that is to be determined after taking into
account the particulars of each case.21cräläwvirtualibräry
The lower court declared that respondents employee was negligent. This factual finding,
however, is not supported by the evidence on record. While factual findings below are generally
conclusive upon this court, the rule is subject to certain exceptions, as when the trial court
overlooked, misunderstood, or misapplied some facts or circumstances of weight and substance
which will affect the result of the case.22cräläwvirtualibräry
In the case at bar, the evidence on record shows that respondent company performed its duty
diligently and did not commit any contractual breach. Hence, petitioner cannot recover and
must bear her own damage.
WHEREFORE, the instant petition is DENIED for lack of merit. The decision of the Court of
Appeals in CA-G.R. CV No. 51932 is AFFIRMED. Accordingly, petitioner is ordered to pay
respondent the amount of P12,901.00 representing the balance of the price of the British
Pageant Package Tour, with legal interest thereon at the rate of 6% per annum, to be computed
from the time the counterclaim was filed until the finality of this Decision. After this Decision
becomes final and executory, the rate of 12% per annum shall be imposed until the obligation
is fully settled, this interim period being deemed to be by then an equivalent to a forbearance
of credit.23cräläwvirtualibräry
SO ORDERED.