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G.R. No.

L-32599 June 29, 1979

EDGARDO E. MENDOZA, petitioner vs.HON. ABUNDIO Z. ARRIETA, Presiding Judge of Branch VIII, Court
of First Instance of Manila, FELINO TIMBOL, and RODOLFO SALAZAR, Respondents.

David G. Nitafan for petitioner.chanrobles virtual law library

Arsenio R. Reyes for respondent Timbol.chanrobles virtual law library

Armando M. Pulgado for respondent Salazar.

MELENCIO-HERRERA, J:

Petitioner, Edgardo Mendoza, seeks a review on certiorari of the Orders of respondent Judge in Civil Case
No. 80803 dismissing his Complaint for Damages based on quasi-delict against respondents Felino
Timbol and Rodolfo Salazar.chanrobles virtual law library

The facts which spawned the present controversy may be summarized as follows:

On October 22, 1969, at about 4:00 o'clock in the afternoon, a three- way vehicular accident occurred
along Mac-Arthur Highway, Marilao, Bulacan, involving a Mercedes Benz owned and driven by
petitioner; a private jeep owned and driven by respondent Rodolfo Salazar; and a gravel and sand truck
owned by respondent Felipino Timbol and driven by Freddie Montoya. As a consequence of said mishap,
two separate Informations for Reckless Imprudence Causing Damage to Property were filed against
Rodolfo Salazar and Freddie Montoya with the Court of First Instance of Bulacan. The race against truck-
driver Montoya, docketed as Criminal Case No. SM-227, was for causing damage to the jeep owned by
Salazar, in the amount of Pl,604.00, by hitting it at the right rear portion thereby causing said jeep to hit
and bump an oncoming car, which happened to be petitioner's Mercedes Benz. The case against jeep-
owner-driver Salazar, docketed as Criminal Case No. SM 228, was for causing damage to the Mercedes
Benz of petitioner in the amount of P8,890.00

At the joint trial of the above cases, petitioner testified that jeep-owner- driver Salazar overtook the
truck driven by Montoya, swerved to the left going towards the poblacion of Marilao, and hit his car
which was bound for Manila. Petitioner further testified that before the impact, Salazar had jumped
from the jeep and that he was not aware that Salazar's jeep was bumped from behind by the truck
driven by Montoya. Petitioner's version of the accident was adopted by truck driver Montoya. Jeep-
owner-driver Salazar, on the other hand, tried to show that, after overtaking the truck driven by
Montoya, he flashed a signal indicating his intention to turn left towards the poblacion of Marilao but
was stopped at the intersection by a policeman who was directing traffic; that while he was at a stop
position, his jeep was bumped at the rear by the truck driven by Montova causing him to be thrown out
of the jeep, which then swerved to the left and hit petitioner's car, which was coming from the opposite
direction.chanrobles virtual law library

On July 31, 1970, the Court of First Instance of Bulacan, Branch V, Sta. Maria, rendered judgment, stating
in its decretal portion:
IN VIEW OF THE FOREGOING, this Court finds the accused Freddie Montoya GUILTY beyond reasonable
doubt of the crime of damage to property thru reckless imprudence in Crime. Case No. SM-227, and
hereby sentences him to pay a fine of P972.50 and to indemnify Rodolfo Salazar in the same amount of
P972.50 as actual damages, with subsidiary imprisonment in case of insolvency, both as to fine and
indemnity, with costs.chanrobles virtual law library

Accused Rodolfo Salazar is hereby ACQUITTED from the offense charged in Crime. Case No. SM-228, with
costs de oficio, and his bond is ordered canceled

SO ORDERED. 1

Thus, the trial Court absolved jeep-owner-driver Salazar of any liability, civil and criminal, in view of its
findings that the collision between Salazar's jeep and petitioner's car was the result of the former having
been bumped from behind by the truck driven by Montoya. Neither was petitioner awarded damages as
he was not a complainant against truck-driver Montoya but only against jeep-owner-driver
Salazar.chanrobles virtual law library

On August 22, 1970, or after the termination of the criminal cases, petitioner filed Civil Case No. 80803
with the Court of First Instance of Manila against respondents jeep-owner-driver Salazar and Felino
Timbol, the latter being the owner of the gravel and sand truck driven by Montoya, for indentification for
the damages sustained by his car as a result of the collision involving their vehicles. Jeep-owner-driver
Salazar and truck-owner Timbol were joined as defendants, either in the alternative or in solidum
allegedly for the reason that petitioner was uncertain as to whether he was entitled to relief against both
on only one of them.chanrobles virtual law library

On September 9, 1970, truck-owner Timbol filed a Motion to Dismiss Civil Case No. 80803 on the
grounds that the Complaint is barred by a prior judgment in the criminal cases and that it fails to state a
cause of action. An Opposition thereto was filed by petitioner.chanrobles virtual law library

In an Order dated September 12, 1970, respondent Judge dismissed the Complaint against truck-owner
Timbol for reasons stated in the afore- mentioned Motion to Dismiss On September 30, 1970, petitioner
sought before this Court the review of that dismissal, to which petition we gave due course.chanrobles
virtual law library

On January 30, 1971, upon motion of jeep-owner-driver Salazar, respondent Judge also dismissed the
case as against the former. Respondent Judge reasoned out that "while it is true that an independent
civil action for liability under Article 2177 of the Civil Code could be prosecuted independently of the
criminal action for the offense from which it arose, the New Rules of Court, which took effect on January
1, 1964, requires an express reservation of the civil action to be made in the criminal action; otherwise,
the same would be barred pursuant to Section 2, Rule 111 ... 2 Petitioner's Motion for Reconsideration
thereof was denied in the order dated February 23, 1971, with respondent Judge suggesting that the
issue be raised to a higher Court "for a more decisive interpretation of the rule. 3
On March 25, 1971, petitioner then filed a Supplemental Petition before us, also to review the last two
mentioned Orders, to which we required jeep-owner-driver Salazar to file an Answer.

The Complaint against

truck-owner Timbol

We shall first discuss the validity of the Order, dated September 12, 1970, dismissing petitioner's
Complaint against truck-owner Timbol.chanrobles virtual law library

In dismissing the Complaint against the truck-owner, respondent Judge sustained Timbol's allegations
that the civil suit is barred by the prior joint judgment in Criminal Cases Nos. SM-227 and SM-228,
wherein no reservation to file a separate civil case was made by petitioner and where the latter actively
participated in the trial and tried to prove damages against jeep-driver-Salazar only; and that the
Complaint does not state a cause of action against truck-owner Timbol inasmuch as petitioner
prosecuted jeep-owner-driver Salazar as the one solely responsible for the damage suffered by his
car.chanrobles virtual law library

Well-settled is the rule that for a prior judgment to constitute a bar to a subsequent case, the following
requisites must concur: (1) it must be a final judgment; (2) it must have been rendered by a Court having
jurisdiction over the subject matter and over the parties; (3) it must be a judgment on the merits; and (4)
there must be, between the first and second actions, Identity of parties, Identity of subject matter and
Identity of cause of action.chanrobles virtual law library

It is conceded that the first three requisites of res judicata are present. However, we agree with
petitioner that there is no Identity of cause of action between Criminal Case No. SM-227 and Civil Case
No. 80803. Obvious is the fact that in said criminal case truck-driver Montoya was not prosecuted for
damage to petitioner's car but for damage to the jeep. Neither was truck-owner Timbol a party in said
case. In fact as the trial Court had put it "the owner of the Mercedes Benz cannot recover any damages
from the accused Freddie Montoya, he (Mendoza) being a complainant only against Rodolfo Salazar in
Criminal Case No. SM-228. 4 And more importantly, in the criminal cases, the cause of action was the
enforcement of the civil liability arising from criminal negligence under Article l of the Revised Penal
Code, whereas Civil Case No. 80803 is based on quasi-delict under Article 2180, in relation to Article
2176 of the Civil Code As held in Barredo vs. Garcia, et al. 5

The foregoing authorities clearly demonstrate the separate in. 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.
That petitioner's cause of action against Timbol in the civil case is based on quasi-delict is evident from
the recitals in the complaint to wit: that while petitioner was driving his car along MacArthur Highway at
Marilao, Bulacan, a jeep owned and driven by Salazar suddenly swerved to his (petitioner's) lane and
collided with his car That the sudden swerving of Salazar's jeep was caused either by the negligence and
lack of skill of Freddie Montoya, Timbol's employee, who was then driving a gravel and sand truck iii the
same direction as Salazar's jeep; and that as a consequence of the collision, petitioner's car suffered
extensive damage amounting to P12,248.20 and that he likewise incurred actual and moral damages,
litigation expenses and attorney's fees. Clearly, therefore, the two factors that a cause of action must
consist of, namely: (1) plaintiff's primary right, i.e., that he is the owner of a Mercedes Benz, and (2)
defendant's delict or wrongful act or omission which violated plaintiff's primary right, i.e., the negligence
or lack of skill either of jeep-owner Salazar or of Timbol's employee, Montoya, in driving the truck,
causing Salazar's jeep to swerve and collide with petitioner's car, were alleged in the Complaint. 6

Consequently, petitioner's cause of action being based on quasi-delict, respondent Judge committed
reversible error when he dismissed the civil suit against the truck-owner, as said case may proceed
independently of the criminal proceedings and regardless of the result of the latter.

Art. 31. When the civil action is based on an obligation not arising from the act or omission complained
of as a felony, such civil action may proceed independently of the criminal proceedings and regardless of
the result of the latter.

But it is truck-owner Timbol's submission (as well as that of jeep-owner-driver Salazar) that petitioner's
failure to make a reservation in the criminal action of his right to file an independent civil action bars the
institution of such separate civil action, invoking section 2, Rule 111, Rules of Court, which says:

Section 2. - Independent civil action. - In the cases provided for in Articles 31, 32, 33, 34 and 2177 of the
Civil Code of the Philippines, an independent civil action entirely separate and distinct from the criminal
action may be brought by the injured party during the pendency of the criminal case, provided the right
is reserved as required in the preceding section. Such civil action shau proceed independently of the
criminal prosecution, and shall require only a preponderance of evidence.

Interpreting the above provision, this Court, in Garcia vs. Florida 7 said:

As we have stated at the outset, the same negligent act causing damages may produce a civil liability
arising from crime or create an action for quasi-delict or culpa extra-contractual. The former is a violation
of the criminal law, while the latter is a distinct and independent negligence, having always had its own
foundation and individuality. Some legal writers are of the view that in accordance with Article 31, the
civil action based upon quasi-delict may proceed independently of the criminal proceeding for criminal
negligence and regardless of the result of the latter. Hence, 'the proviso in Section 2 of Rule 111 with
reference to ... Articles 32, 33 and 34 of the Civil Code is contrary to the letter and spirit of the said
articles, for these articles were drafted ... and are intended to constitute as exceptions to the general
rule stated in what is now Section 1 of Rule 111. The proviso, which is procedural, may also be regarded
as an unauthorized amendment of substantive law, Articles 32, 33 and 34 of the Civil Code, which do not
provide for the reservation required in the proviso ... .
In his concurring opinion in the above case, Mr. Justice Antonio Barredo further observed that inasmuch
as Articles 2176 and 2177 of the Civil Code create a civil liability distinct and different from the civil
action arising from the offense of negligence under the Revised Penal Code, no reservation, therefore,
need be made in the criminal case; that Section 2 of Rule 111 is inoperative, "it being substantive in
character and is not within the power of the Supreme Court to promulgate; and even if it were not
substantive but adjective, it cannot stand because of its inconsistency with Article 2177, an enactment of
the legislature superseding the Rules of 1940."

We declare, therefore, that in so far as truck-owner Timbol is concerned, Civil Case No. 80803 is not
barred by the fact that petitioner failed to reserve, in the criminal action, his right to file an independent
civil action based on quasi-delict.

The suit against

jeep-owner-driver Salazar

The case as against jeep-owner-driver Salazar, who was acquitted in Criminal Case No. SM-228, presents
a different picture altogether.chanrobles virtual law library

At the outset it should be clarified that inasmuch as civil liability co-exists with criminal responsibility in
negligence cases, the offended party has the option between an action for enforcement of civil liability
based on culpa criminal under Article 100 of the Revised Penal Code, and an action for recovery of
damages based on culpa aquiliana under Article 2177 of the Civil Code. The action for enforcement of
civil liability based on culpa criminal under section 1 of Rule 111 of the Rules of Court is deemed
simultaneously instituted with the criminal action, unless expressly waived or reserved for separate
application by the offended party. 8

The circumstances attendant to the criminal case yields the conclusion that petitioner had opted to base
his cause of action against jeep-owner-driver Salazar on culpa criminal and not on culpa aquiliana as
evidenced by his active participation and intervention in the prosecution of the criminal suit against said
Salazar. The latter's civil liability continued to be involved in the criminal action until its termination. Such
being the case, there was no need for petitioner to have reserved his right to file a separate civil action
as his action for civil liability was deemed impliedly instituted in Criminal Case No. SM-228.chanrobles
virtual law library

Neither would an independent civil action he. Noteworthy is the basis of the acquittal of jeep-owner-
driver Salazar in the criminal case, expounded by the trial Court in this wise:

In view of what has been proven and established during the trial, accused Freddie Montoya would be
held able for having bumped and hit the rear portion of the jeep driven by the accused Rodolfo Salazar,

Considering that the collision between the jeep driven by Rodolfo Salazar and the car owned and driven
by Edgardo Mendoza was the result of the hitting on the rear of the jeep by the truck driven by Freddie
Montoya, this Court behaves that accused Rodolfo Salazar cannot be held able for the damages
sustained by Edgardo Mendoza's car. 9
Crystal clear is the trial Court's pronouncement that under the facts of the case, jeep-owner-driver
Salazar cannot be held liable for the damages sustained by petitioner's car. In other words, "the fact from
which the civil might arise did not exist. " Accordingly, inasmuch as petitioner's cause of action as against
jeep-owner-driver Salazar is ex- delictu, founded on Article 100 of the Revised Penal Code, the civil
action must be held to have been extinguished in consonance with Section 3(c), Rule 111 of the Rules of
Court 10which provides:

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 night arise did not
exist. ...

And even if petitioner's cause of action as against jeep-owner-driver Salazar were not ex-delictu, the end
result would be the same, it being clear from the judgment in the criminal case that Salazar's acquittal
was not based upon reasonable doubt, consequently, a civil action for damages can no longer be
instituted. This is explicitly provided for in Article 29 of the Civil Code quoted here under:

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 ...chanrobles virtual law library

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.

In so far as the suit against jeep-owner-driver Salazar is concerned, therefore, we sustain respondent
Judge's Order dated January 30, 1971 dismissing the complaint, albeit on different grounds.chanrobles
virtual law library

WHEREFORE, 1) the Order dated September 12, 1970 dismissing Civil Case No. 80803 against private
respondent Felino Timbol is set aside, and respondent Judge, or his successor, hereby ordered to
proceed with the hearing on the merits; 2) but the Orders dated January 30, 1971 and February 23, 1971
dismissing the Complaint in Civil Case No. 80803 against respondent Rodolfo Salazar are hereby
upheld.chanrobles virtual law library

No costs.chanrobles virtual law library

SO ORDERED.

Teehankee, (Chairman), Makasiar, Fernandez, Guerrero and De Castro, JJ., concur.


G.R. No. L-1299 November 16, 1903

VICENTE PEREZ, plaintiff-appellee, vs.EUGENIO POMAR, Agent of the Compañia General de Tabacos,
defendant-appellant.

Francisco Dominguez for appellant.

Ledesma, Sumulong and Quintos for appellee.

TORRES, J.:

In a decision dated February 9, 1903, the judge of the Sixth Judicial District, deciding a case brought by
the plaintiff against the defendant for the recovery of wages due and unpaid, gave judgment against the
latter for the sum of $600 and the costs of suit, less the sum of $50, Mexican.

On August 27, 1902, Don Vicente Perez filed in the Court of First Instance of Laguna a complaint, which
was amended on the 17th of January of this year, asking that the court determine the amount due the
plaintiff, at the customary rate of compensation for interpreting in these Islands, for services rendered in
the Tabacalera Company, and that, in view of the circumstances of the case, judgment be rendered in his
favor for such sum. The complaint also asked that the defendant be condemned to the payment of
damages in the sum of $3,200, gold, together with the costs of suit. In this complaint it was alleged that
Don Eugenio Pomar, as general agent of the Compañia General de Tabacos in the said province, verbally
requested the plaintiff on the 8th of December, 1901, to act as interpreter between himself and the
military authorities; that after the date mentioned the plaintiff continued to render such services up to
and including May 31, 1902; that he had accompanied the defendant, Pomar, during that time at
conferences between the latter and the colonel commanding the local garrison, and with various officers
and doctors residing in the capital, and at conferences with Captain Lemen in the town of Pilar, and with
the major in command at the town of Pagsanjan, concerning the shipment of goods from Manila, and
with respect to Pagsanjan to this city; that the plaintiff during this period held himself in readiness to
render services whenever required; that on this account his private business, and especially a soap
factory established in the capital, was entirely abandoned; that to the end that such services might be
punctually rendered, the agent, Pomar, assured him that the Tabacalera Company always generously
repaid services rendered it, and that he therefore did not trouble himself about his inability to devote
the necessary amount of time to his business, the defendant going so far as to make him flattering
promises of employment with the company, which he did not accept; that these statements were made
in the absence of witnesses and that therefore his only proof as to the same was Mr. Pomar's word as a
gentleman; that the employees of the company did not understand English, and by reason of the
plaintiff's mediation between the agent, and the military authorities large profits were obtained, as
would appear from the account and letterpress books of the agency corresponding to those dates. In the
amended complaint it was added that the defendant, on behalf of the company, offered to renumerate
the plaintiff for the services rendered in the most advantageous manner in which such services are
compensated, in view of the circumstances under which they were requested; and that the plaintiff, by
rendering the company such services, was obliged to abandon his own business, the manufacture of
soap, and thereby suffered damages in the sum of $3,200, United States currency.

The defendant, on the 25th of September, 1902, filed an answer asking for the dismissal of the
complaint, with costs to the plaintiff. In his answer the defendant denied the allegation in the first
paragraph of the complaint, stating that it was wholly untrue that the company, and the defendant as its
agent, had solicited the services of the plaintiff as interpreter before the military authorities for the
period stated, or for any other period, or that the plaintiff had accompanied Pomar at the conferences
mentioned, concerning shipments from Manila and exports from some of the towns of the province to
this capital. He stated that he especially denied paragraphs 2 of the complaint, as it was absolutely
untrue that the plaintiff had been at the disposal of the defendant for the purpose of rendering such
services; that he therefore had not been obliged to abandon his occupation or his soap factory, and that
the statement that an offer of employment with the company had been made to him was false. The
defendant also denied that through the mediation of the plaintiff the company and himself had obtained
large profits. The statements in paragraphs 6, 7, 8, and 9 of the complaint were also denied. The
defendant stated that, on account of the friendly relations which sprang up between the plaintiff and
himself, the former borrowed from him from time to time money amounting to $175 for the purposes of
his business, and that he had also delivered to the plaintiff 36 arrobas of oil worth $106, and three
packages of resin for use in coloring his soap; that the plaintiff accompanied the defendant to Pagsanjan,
Pilar, and other towns when the latter made business trips to them for the purpose of extending his
business and mercantile relations therein; that on these excursions, as well as on private and official
visits which he had to make, the plaintiff occasionally accompanied him through motives of friendship,
and especially because of the free transportation given him, and not on behalf of the company of which
he was never interpreter and for which he rendered no services; that the plaintiff in these conferences
acted as interpreter of his own free will, without being requested to do so by the defendant and without
any offer of payment or compensation; that therefore there existed no legal relation whatever between
the company and the plaintiff, and that the defendant, when accepting the spontaneous, voluntary and
officious services of the plaintiff, did so in his private capacity and not as agent of the company, and that
it was for this reason that he refused to enter into negotiations with the plaintiff, he being in no way
indebted to the latter. The defendant concluded by saying that he answered in his individual capacity.

A complaint having been filed against the Compañia General de Tabacos and Don Eugenio Pomar, its
agent in the Province of Laguna, the latter, having been duly summoned, replied to the complaint, which
was subsequently amended, and stated that he made such reply in his individual capacity and not as
agent of the company, with which the plaintiff had had no legal relations. The suit was instituted
between the plaintiff and Pomar, who, as such, accepted the issue and entered into the controversy
without objection, opposed the claim of the plaintiff, and concluded by asking that the complaint be
dismissed, with the costs to the plaintiff. Under these circumstances and construing the statutes liberally,
we think it proper to decide the case pending between both parties in accordance with law and the strict
principles of justice.

From the oral testimony introduced at the trial, it appears that the plaintiff, Perez, did on various
occasions render Don Eugenio Pomar services as interpreter of English; and that he obtained passes and
accompanied the defendant upon his journeys to some of the towns in the Province of Laguna. It does
not appear from the evidence, however, that the plaintiff was constantly at the disposal of the defendant
during the period of six months, or that he rendered services as such interpreter continuously and daily
during that period of time.

It does not appear that any written contract was entered into between the parties for the employment
of the plaintiff as interpreter, or that any other innominate contract was entered into; but whether the
plaintiff's services were solicited or whether they were offered to the defendant for his assistance,
inasmuch as these services were accepted and made use of by the latter, we must consider that there
was a tacit and mutual consent as to the rendition of the services. This gives rise to the obligation upon
the person benefited by the services to make compensation therefor, since the bilateral obligation to
render services as interpreter, on the one hand, and on the other to pay for the services rendered, is
thereby incurred. (Arts. 1088, 1089, and 1262 of the Civil Code). The supreme court of Spain in its
decision of February 12, 1889, holds, among other things, "that not only is there an express and tacit
consent which produces real contract but there is also a presumptive consent which is the basis of quasi
contracts, this giving rise to the multiple juridical relations which result in obligations for the delivery of a
thing or the rendition of a service."
Notwithstanding the denial of that defendant, it is unquestionable that it was with his consent that the
plaintiff rendered him services as interpreter, thus aiding him at a time when, owing to the existence of
an insurrection in the province, the most disturbed conditions prevailed. It follows, hence, that there was
consent on the part of both in the rendition of such services as interpreter. Such service not being
contrary to law or to good custom, it was a perfectly licit object of contract, and such a contract must
necessarily have existed between the parties, as alleged by the plaintiff. (Art. 1271, Civil Code.)

The consideration for the contract is also evident, it being clear that a mutual benefit was derived in
consequence of the service rendered. It is to be supposed that the defendant accepted these services
and that the plaintiff in turn rendered them with the expectation that the benefit would be reciprocal.
This shows the concurrence of the three elements necessary under article 1261 of the Civil Code to
constitute a contract of lease of service, or other innominate contract, from which an obligation has
arisen and whose fulfillment is now demanded.

Article 1254 of the Civil Code provides that a contract exists the moment that one or more persons
consent to be bound, with respect to another or others, to deliver some thing or to render some service.
Article 1255 provides that the contracting parties may establish such covenants, terms, and conditions as
they deem convenient, provided they are not contrary to law, morals or public policy. Whether the
service was solicited or offered, the fact remains that Perez rendered to Pomar services as interpreter. As
it does not appear that he did this gratuitously, the duty is imposed upon the defendant, having
accepted the benefit of the service, to pay a just compensation therefor, by virtue of the innominate
contract of facio ut des implicitly established.

The obligations arising from this contract are reciprocal, and, apart from the general provisions with
respect to contracts and obligations, the special provisions concerning contracts for lease of services are
applicable by analogy.

In this special contract, as determined by article 1544 of the Civil Code, one of the parties undertakes to
render the other a service for a price certain. The tacit agreement and consent of both parties with
respect to the service rendered by the plaintiff, and the reciprocal benefits accruing to each, are the best
evidence of the fact that there was an implied contract sufficient to create a legal bond, from which
arose enforceable rights and obligations of a bilateral character.lawphi1.net

In contracts the will of the contracting parties is law, this being a legal doctrine based upon the
provisions of articles 1254, 1258, 1262, 1278, 1281, 1282, and 1289 of the Civil Code. If it is a fact
sufficiently proven that the defendant, Pomar, on various occasions consented to accept an interpreter's
services, rendered in his behalf and not gratuitously, it is but just that he should pay a reasonable
remuneration therefor, because it is a well-known principle of law that no one should be permitted to
enrich himself to the damage of another.

With respect to the value of the services rendered on different occasions, the most important of which
was the first, as it does not appear that any salary was fixed upon by the parties at the time the services
were accepted, it devolves upon the court to determine, upon the evidence presented, the value of such
services, taking into consideration the few occasions on which they were rendered. The fact that no fixed
or determined consideration for the rendition of the services was agreed upon does not necessarily
involve a violation of the provisions of article 1544 of the Civil Code, because at the time of the
agreement this consideration was capable of being made certain. The discretionary power of the court,
conferred upon it by the law, is also supported by the decisions of the supreme court of Spain, among
which may be cited that of October 18, 1899, which holds as follows: "That as stated in the article of the
Code cited, which follows the provisions of law 1, title 8, of the fifth partida, the contract for lease of
services is one in which one of the parties undertakes to make some thing or to render some service to
the other for a certain price, the existence of such a price being understood, as this court has held not
only when the price has been expressly agreed upon but also when it may be determined by the custom
and frequent use of the place in which such services were rendered."

No exception was taken to the judgment below by the plaintiff on account of the rejection of his claim
for damages. The decision upon this point is, furthermore, correct.

Upon the supposition that the recovery of the plaintiff should not exceed 200 Mexican pesos, owing to
the inconsiderable number of times he acted as interpreter, it is evident that the contract thus implicitly
entered into was not required to be in writing and that therefore it does not fall within article 1280 of
the Civil Code; nor is it included within the provisions of section 335 of the Code of Civil Procedure, as
this innominate contract is not covered by that section. The contract of lease of services is not included
in any of the cases expressly designated by that section of the procedural law, as affirmed by the
appellant. The interpretation of the other articles of the Code alleged to have been infringed has also
been stated fully in this opinion.

For the reasons stated, we are of the opinion that judgment should be rendered against Don Eugenio
Pomar for the payment to the plaintiff of the sum of 200 Mexican pesos, from which will be deducted
the sum of 50 pesos is made as to the costs of this instance. The judgment below is accordingly affirmed
in so far as it agrees with this opinion, and reversed in so far as it may be in conflict therewith. Judgment
will be entered accordingly twenty days after this decision is filed.

Arellano, C.J., Willard, and Mapa, JJ., concur.

Separate Opinions

MCDONOUGH, J., dissenting:

I dissent from the opinion of the majority. In my opinion there is no legal evidence in the case from
which the court may conclude that the recovery should be 200 Mexican pesos. I am therefore in favor of
affirming the judgment.

Cooper, J., concurs.

Johnson, J., did not sit in this case.


SUPREME COURTManilaEN BANC

G.R. No. L-48006 July 8, 1942

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

Celedonio P. Gloria and Antonio Barredo for petitioner.

Jose G. Advincula for respondents.

BOCOBO, J.:

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

At about half past one in the morning of May 3, 1936, on the road between Malabon and Navotas,
Province of Rizal, there was a head-on collision between a taxi of the Malate Taxicab driven by Pedro
Fontanilla and a carretela guided by Pedro Dimapalis. The carretela was overturned, and one of its
passengers, 16-year-old boy Faustino Garcia, suffered injuries from which he died two days later. A
criminal action was filed against Fontanilla in the Court of First Instance of Rizal, and he was convicted
and sentenced to an indeterminate sentence of one year and one day to two years of prision
correccional. The court in the criminal case granted the petition that the right to bring a separate civil
action be reserved. The Court of Appeals affirmed the sentence of the lower court in the criminal case.
Severino Garcia and Timotea Almario, parents of the deceased on March 7, 1939, brought an action in
the Court of First Instance of Manila against Fausto Barredo as the sole proprietor of the Malate Taxicab
and employer of Pedro Fontanilla. On July 8, 1939, the Court of First Instance of Manila awarded
damages in favor of the plaintiffs for P2,000 plus legal interest from the date of the complaint. This
decision was modified by the Court of Appeals by reducing the damages to P1,000 with legal interest
from the time the action was instituted. It is undisputed that Fontanilla 's negligence was the cause of
the mishap, as he was driving on the wrong side of the road, and at high speed. As to Barredo's
responsibility, the Court of Appeals found:
... It is admitted that defendant is Fontanilla's employer. There is proof that he exercised the diligence of
a good father of a family to prevent damage. (See p. 22, appellant's brief.) In fact it is shown he was
careless in employing Fontanilla who had been caught several times for violation of the Automobile Law
and speeding (Exhibit A) — violation which appeared in the records of the Bureau of Public Works
available to be public and to himself. Therefore, he must indemnify plaintiffs under the provisions of
article 1903 of the Civil Code.

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

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

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

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

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

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

The pertinent provisions of the Civil Code and Revised Penal Code are as follows:

CIVIL CODE

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

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.

Yulo, C.J., Moran, Ozaeta and Paras, JJ., concur.

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