TORTS WITH INDEPENDENT CIVIL ACTION

I. CONCEPT – Two views on the basis of the liability

A. That the civil action which the Civil Code provisions allow to be filed is ex-delicto i.e.
civil liability arising from delict (Madeja vs. Caro, 126 SCRA 293).

“The underlying purpose of the principle under consideration is to allow the citizen to
enforce his rights in a private action brought by him, regardless of the action of the State
attorney. It is not conducive to civic spirit and to individual self-reliance and initiative to
habituate the citizens to depend upon the government for the vindication of their own
private rights.” (Report of the Code Commission)

The general rule is that when a criminal action is instituted, the civil action for
recovery of civil liability arising from the offense charged is impliedly instituted with the
criminal action unless the offended party reserves the his right to institute it separately;
and after a criminal action has been commenced, no civil action arising from the same
offense can be instituted. The present article creates an exception to this rule when the
offense is defamation, fraud or physical injuries. (Tolentino, I Civil Code, p. 144 1974).

B. That the liability sought to be enforced are based from the tortuous actions more of
the nature of culpa aquiliana and then therefore separate and distinct from the civil
liability arising from the crime. (Justice Caguioa, 1 Caguioa 53).

A citizen who suffers damage or injury through another must rely upon the action of
the prosecuting attorney if the offense is criminal. The proposed Civil Code lessens (but
does not abolish) this dependence of the aggrieved party upon the criminal action.

The underlying purpose of the principle under consideration is to allow the citizen to
enforce his rights in a private action brought by him, regardless of the action of the State
attorney. It is not conducive to civic spirit and to individual self-reliance and initiative to
habituate the citizens to depend upon the government for the vindication of their own
private rights. (Report of the Code Commission).

II. Article 32: VIOLATION OF CIVIL & POLITICAL RIGHTS

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 Article 32 of the Civil Code holds any public officer, employee or private individual
civilly liable for the violation of civil liberties, political liberties and other basic rights under
the Constitution. The aggrieved party may recover actual, moral and exemplary damages
and other relief. The civil action is separate and distinct and shall proceed independently of
a criminal prosecution if one is instituted. Only a preponderance of evidence is required. If
the violation of the civil or political rights constitutes a crime and a criminal action is
instituted the civil action is also deemed instituted with the criminal action unless the same
is reserved. (Judge Jarencio, 1977).

A. Rationale: The creation of an absolutely separate and independent civil action

for the violation of civil liberties is essential to the effective maintenance of
democracy, for these reasons:

(1) The threat to freedom originates from abuses of power by government officials
and peace officers.

(2) Even when the prosecuting attorney filed a criminal action, the requirement of
proof beyond reasonable doubt often prevented the appropriate punishment.

(3) Direct and open violations of the Penal Code trampling upon the freedom are not
so frequent as those subtle, clever and indirect ways which do not come within
the pale of penal law.

B. HOW COMMITTED and PERSONS LIABLE

Although Article 32 normally involves intentional acts, the tort of violation of civil and
political rights can also be committed through negligence. In addition, the rule is that good
faith on the part of the defendant does not necessarily excuse such violation. The very
nature of Article 32 is that the wrong may be civil or criminal. It is not necessary therefore
that there should be malice or bad faith. To make such a requisite would defeat the main
purpose of Article 32 which is the effective protection of individual rights. Public officials in
the past have abused their powers on the pretext of justifiable motives or good faith in the
performance of their duties. Precisely, the object of the Article is to put an end to official
abuse by the plea of good faith. (Delfin Lim and Jikil Taha vs. Francisco Ponce De Leon
et.al., G.R. No. L-22554).

The provisions in the Bill of Rights and the recognition of the rights specified therein
are normally directed against government abuse. The coverage of tort (in this jurisdiction)
also cover even private individuals. The law expressly imposes liability on private
individuals who obstruct, defeat, violate or in any manner impede or impair the rights and
liberties of another. The law also provides that a person may be held liable whether his
participation is direct or indirect.

a. Superior Officers in relation to their subordinates

The principles of accountability of public officials under the Constitution acquires

added meaning and assumes a larger dimension. No longer may a superior official
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 relax his vigilance or abdicate his duty to supervise his subordinates, secure in
thought that he does not have to answer the transgressions committed by the
latter against the constitutionally protected rights and liberties of the citizens
(Aberca et.al. vs. Ver, 160 SCRA 590).

C. STATE IMMUNITY

A public officer who is defendant in a case for damages under Article 32 cannot
escape liability under the doctrine of state immunity. The doctrine of state immunity applies
only if the acts involved are acts done by the officers in the performance of official duties
within the ambit of their powers. (Aberca et.al. vs. Ver, supra).

D. Suspension of the privilege of the writ of habeas corpus

Section 15 of the 1987 Constitution provides that the privilege of the writ of habeas
corpus shall not be suspended except in cases of invasion or rebellion, when the public
safety requires it.

Only the right of the individual to seek release from his detention through this writ is
suspended.

E. Examples of violations

1. Due Process – Ruben Serrano vs. NLRC (GR No. 117040)

2. Right Against Searches and Seizures - Aberca et.al. vs. Ver, 160 SCRA 590

III. ART.33: DEFAMATION, FRAUD AND PHYSICAL INJURIES

Defamation, fraud and physical injuries are crimes under the Revised Penal Code.
Art. 33 of the Civil Code specifically declares that the civil action for damages for
defamation, fraud and physical injuries is entirely separate and distinct from the criminal
action and shall proceed independently of the criminal prosecution and shall require only a
preponderance of evidence. Defamation, fraud and physical injuries are treated by the law
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not only as crimes but also as torts in so far as the aggrieved party is concerned. The terms
“defamation, fraud and physical injuries” in Art. 33 are used in their generic sense and not
in the sense defined in the Revised Penal Code.

A. Defamation – an invasion of the interest in reputation and good name, by

communication to others which tends to diminish the esteem in which the plaintiff
is held, or to excite adverse feelings or opinion against him (Prosser, Handbook on
the law on Torts, p.52)

- A statement is defamatory if it is an imputation of circumstance

“tending to cause dishonor, discredit, or contempt of a natural or juridical person, or
to blacken the memory of one who is dead (Revised Penal Code definition).

In this jurisdiction, defamation includes the crimes of libel (written defamation) and
slander (oral defamation). The liability imposed for defamation is brought about by the
desire to protect the reputation of every individual. The enjoyment of reputation is one of
those rights necessary to human society that underlie the whole scheme of civilization.

a. Requisites: (1) it must be defamatory;

(2) it must be malicious;

(3) it must be given publicity; and

(4) the victim must be identifiable.

b. Persons Liable and Proof of Truth (as per Revised Penal Code)

Art. 360. Persons responsible. — Any
person who shall publish, exhibit, or cause
the publication or exhibition of any
defamation in writing or by similar means,
shall be responsible for the same.
The author or editor of a book or
pamphlet, or the editor or business
manager of a daily newspaper, magazine
or serial publication, shall be responsible
for the defamations contained therein to
the same extent as if he were the author
thereof.
The criminal and civil action for damages
in cases of written defamations as
provided for in this chapter, shall be filed
simultaneously or separately with the
court of first instance of the province or
city where the libelous article is printed
and first published or where any of the
offended parties actually resides at the
time of the commission of the offense:
Provided, however, That where one of the
offended parties is a public officer whose
office is in the City of Manila at the time of
the commission of the offense, the action
shall be filed in the Court of First Instance
of the City of Manila, or of the city or

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 province where the libelous article is
printed and first published, and in case
such public officer does not hold office in
the City of Manila, the action shall be filed
in the Court of First Instance of the
province or city where he held office at
the time of the commission of the offense
or where the libelous article is printed and
first published and in case one of the
offended parties is a private individual, the
action shall be filed in the Court of First
Instance of the province or city where he
actually resides at the time of the
commission of the offense or where the
libelous matter is printed and first
published: Provided, further, That the civil
action shall be filed in the same court
where the criminal action is filed and vice
versa: Provided, furthermore, That the
court where the criminal action or civil
action for damages is first filed, shall
acquire jurisdiction to the exclusion of
other courts: And, provided, finally, That
this amendment shall not apply to cases
of written defamations, the civil and/or
criminal actions which have been filed in
court at the time of the effectivity of this
law.
Preliminary investigation of criminal action
for written defamations as provided for in
the chapter shall be conducted by the
provincial or city fiscal of the province or
city, or by the municipal court of the city
or capital of the province where such
action may be instituted in accordance
with the provisions of this article.
No criminal action for defamation which
consists in the imputation of a crime which
cannot be prosecuted de oficio shall be
brought except at the instance of and
upon complaint expressly filed by the
offended party. (As amended by R.A.
1289, approved June 15, 1955, R.A. 4363,
approved June 19, 1965).
Art. 361. Proof of the truth. — In every
criminal prosecution for libel, the truth
may be given in evidence to the court and
if it appears that the matter charged as
libelous is true, and, moreover, that it was
published with good motives and for
justifiable ends, the defendants shall be
acquitted.
Proof of the truth of an imputation of an
act or omission not constituting a crime
shall not be admitted, unless the
imputation shall have been made against
Government employees with respect to
facts related to the discharge of their
official duties.
In such cases if the defendant proves the
truth of the imputation made by him, he
shall be acquitted.

c. Defenses of Absolute Privileged Matters and Qualified Privilege

d.1. Absolute Privileged found in The 1987 Constitution:

Article III Section 4. No law shall be passed abridging the freedom of speech, of
expression, or of the press, or the right of the people peaceably to assemble and
petition the government for redress of grievances.

Article VI Section 11. A Senator or Member of the House of Representatives shall, in

all offenses punishable by not more than six years imprisonment, be privileged from

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 arrest while the Congress is in session. No Member shall be questioned nor be held
liable in any other place for any speech or debate in the Congress or in any committee
thereof.

d.2. Qualified Privilege found in the Revised Penal Code:

Art. 354. Requirement for publicity. — 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, except in the following cases:

1. A private communication made by any person to another in the

performance of any legal, moral or social duty; and

2. A fair and true report, made in good faith, without any comments or
remarks, of any judicial, legislative or other official proceedings which are not
of confidential nature, or of any statement, report or speech delivered in said
proceedings, or of any other act performed by public officers in the exercise
of their functions.

B. Fraud

The tort of fraud under Art.33 includes cases which constitute the tort of
deceit in England and the United States. In English law, the elements of fraud
(Report of the Code of Commission). The elements of deceit in English law are: (1)
the defendant must have made false representation to the plaintiff;

(2) the representation must be one of fact;

(3) the defendant must know that the representation is false or

be reckless about

whether it is false;

(4) the defendant must have acted on the false

representation;

(5) the defendant must have intended that the representation

should be acted on;

(6) the plaintiff must have suffered damage as a result of

acting on the representation (Elliot and Quinn, Tort Law, 1996 Ed.).

However, misrepresentation upon a mere matter of opinion is not an

actionable deceit. (Sonco vs. Sellner, 37 Phil. 254). Nevertheless, According to Art.
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 1341 NCC. A mere expression of an opinion does not signify fraud, unless made by
an expert and the other party has relied on the former's special knowledge.

C. Physical Injuries

It has been ruled in this jurisdiction that the term “physical injuries” in Art.33
include bodily injuries causing death (Capuno vs. Pepsi et.al., GR No. L-19331).
However, it does not include the cases where the crime committed is reckless
imprudence resulting to homicide. Physical Injuries is to be understood in its
ordinary meaning and does not include homicide or murder because where physical
injuries result in homicide or murder, the reason for the law (namely, to give the
injured party personally the initiative to demand damages by an independent civil
action) ceases, for the reason that a dead person can no longer personally, through
his lawyer institute an independent civil action for damages. (Corpuz et.al. vs Paje,
GR No. L-26737).

IV. ART.34: Neglect of Duty

Article 34 of the Civil Code provides:

“When a member of a city or municipal police force refuses or fails to render aid or
protection to any person in case of danger to life or property, such peace officer shall
be primarily liable for damages and the city or municipality shall be subsidiarily
responsible therefore. The civil action herein recognized shall be independent of any
criminal proceedings, and a preponderance of evidence shall suffice to support such
action.”

The policeman is the government official to whom the common man usually
turns for protection when his life or property is threatened with danger. To him the
policeman is the external symbol of the government’s power and authority. Thus it
is the primary duty of city and municipal policemen not only to preserve and
maintain peace and order but also to render aid and protection to life and property
in their jurisdictions. If policemen refuse or fail to render aid or protection to any
person whose life or property is in danger, they are unfaithful to their duty and Art.
34 of the Civil Code properly grants to the person damaged a right action against
the recreant policeman. The law also holds the city or municipality subsidiarily
responsible for the damage so that they will exercise great care in selecting
conscientious and duly qualified policemen and exercise proper supervision over
them in the performance of their duties as peace officers.

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 Sources: 1. Timoteo Aquino on Torts and Damages

2. Judge Jarencio on Torts and Damages in Philippine Law

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