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.

x x x           x x x           x x x

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.

x x x           x x x           x x x

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.

x x x           x x x           x x x

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 beres 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.

x x x           x x x           x x x

"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.

x x x           x x x           x x x

"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.

x x x           x x x           x x x

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.

G.R. No. L-46179 January 31, 1978

CANDIDA VIRATA, TOMAS VIRATA, MANOLITO VIRATA, EDERLINDA VIRATA, NAPOLEON VIRATA, ARACELY VIRATA, ZENAIDA VIRATA, LUZMINDA VIRATA, PACITA VIRATA, and EVANGELINA VIRATA,petitioners, vs.VICTORIO OCHOA, MAXIMO BORILLA and THE COURT OF FIRST INSTANCE OF CAVITE, 7th JUDICIAL DISTRICT, BRANCH V, stationed at BACOOR, CAVITE, respondents.

Remulla, Estrella & Associates for petitioners

Exequil C. Masangkay for respondents.

 

FERNANDEZ, J.:

This is an appeal by certiorari, from the order of the Court of First Instance of Cavite, Branch V, in Civil Case No. B-134 granting the motion of the defendants to dismiss the complaint on the ground that there is another action pending between the same parties for the same cause. 1

The record shows that on September 24, 1975 one Arsenio Virata died as a result of having been bumped while walking along Taft Avenue, Pasay City by a passenger jeepney driven by Maximo Borilla and registered in the name Of Victoria Ochoa; that Borilla is the employer of Ochoa; that for the death of Arsenio Virata, a action for homicide through reckless imprudence was instituted on September 25, 1975 against Maximo Borilla in the Court of First Instance of Rizal at Pasay City, docketed as C Case No. 3162-P of said court; that at the hearing of the said criminal case on December 12, 1975, Atty. Julio Francisco, the private prosecutor, made a reservation to file a separate civil action for damages against the driver on his criminal liability; that on February 19, 1976 Atty. Julio Francisco filed a motion in said c case to withdraw the reservation to file a separate civil action; that thereafter, the private prosecutor actively participated in the trial and presented evidence on the damages; that on June 29, 1976 the heirs of Arsenio Virata again reserved their right to institute a separate civil action; that on July 19, 1977 the heirs of Arsenio Virata, petitioners herein, commenced Civil No. B-134 in the Court of First Instance of Cavite at Bacoor, Branch

V, for damages based on quasi-delict against the driver Maximo Borilla and the registered owner of the jeepney, Victorio Ochoa; that on August 13, 1976 the defendants, private respondents filed a motion to dismiss on the ground that there is another action, Criminal Case No. 3162-P, pending between the same parties for the same cause; that on September 8, 1976 the Court of First Instance of Rizal at Pasay City a decision in Criminal Case No. 3612-P acquitting the accused Maximo Borilla on the ground that he caused an injury by name accident; and that on January 31, 1977, the Court of First Instance of Cavite at Bacoor granted the motion to Civil Case No. B-134 for damages. 2

The principal issue is weather or not the of the Arsenio Virata, can prosecute an action for the damages based on quasi-delict against Maximo Borilla and Victoria Ochoa, driver and owner, respectively on the passenger jeepney that bumped Arsenio Virata.

It is settled that in negligence cases the aggrieved parties may choose between an action under the Revised Penal Code or of quasi-delict under Article 2176 of the Civil Code of the Philippines. What is prohibited by Article 2177 of the Civil Code of the Philippines is to recover twice for the same negligent act.

The Supreme Court has held that:

According to the Code Commission: 'The foregoing provision (Article 2177) though at first sight startling, is not so novel or extraordinary when we consider the exact nature of criminal and civil negligence. The former is a violation of the criminal law, while the latter is a 'culpa aquiliana' or quasi-delict, of ancient origin, having always had its own foundation and individuality, separate from criminal negligence. Such distinction between criminal negligence and 'culpa extra-contractual' or quasi-delito has been sustained by decision of the Supreme Court of Spain and maintained as clear, sound and perfectly tenable by Maura, an outstanding Spanish jurist. Therefore, under the proposed Article 2177, acquittal from an accusation of criminal negligence, whether on reasonable doubt or not, shall not be a bar to a subsequent civil action, not for civil liability arising from criminal negligence, but for damages due to a quasi-delict or 'culpa aquiliana'. But said article forestalls a double recovery. (Report of the Code Commission, p. 162.)

Although, again, this Article 2177 does seem to literally refer to only acts of negligence, the same argument of Justice Bocobo about construction that upholds 'the spirit that given life' rather than that which is literal that killeth the intent of the lawmaker should be observed in applying the same. And considering that the preliminary chapter on human relations of the new Civil Code definitely establishes the separability and independence of liability in a civil action for acts criminal in character (under Articles 29 to 32) from the civil responsibility arising from crime fixed by Article 100 of the Penal Code, and, in a sense, the Rules of Court, under Sections 2 and 3(c), Rule 111, contemplate also the same separability, it is 'more congruent' with the spirit of law, equity and justice, and more in harmony with modern progress', to borrow the

felicitous language in Rakes vs. Atlantic Gulf and Pacific Co., 7 Phil. to 359, to hod as We do hold, that Article 2176, where it refers to 'fault covers not only acts 'not punishable by law' but also criminal in character, whether intentional and voluntary or consequently, a separate civil action lies against the in a criminal act, whether or not he is criminally prosecuted and found guilty and acquitted, provided that the offended party is not allowed, if he is actually charged also criminally, to recover damages on both scores, and would be entitled in such eventuality only to the bigger award of the, two assuming the awards made in the two cases vary. In other words the extinction of civil liability refereed to in Par. (c) of Section 13, Rule 111, refers exclusively to civil liability founded on Article 100 of the Revised Penal Code, whereas the civil liability for the same act considered as a quasi-delict only and not as a crime is not extinguished even by a declaration in the criminal case that the criminal act charged has not happened or has not been committed by the accused. Brief stated, We hold, in reitration of Garcia, that culpa aquilina includes voluntary and negligent acts which may be punishable by law. 3

The petitioners are not seeking to recover twice for the same negligent act. Before Criminal Case No. 3162-P was decided, they manifested in said criminal case that they were filing a separate civil action for damages against the owner and driver of the passenger jeepney based on quasi-delict. The acquittal of the driver, Maximo Borilla, of the crime charged in Criminal Case No. 3162-P is not a bar to the prosecution of Civil Case No. B-134 for damages based on quasi-delict The source of the obligation sought to be enforced in Civil Case No. B-134 is quasi-delict, not an act or omission punishable by law. Under Article 1157 of the Civil Code of the Philippines, quasi-delict and an act or omission punishable by law are two different sources of obligation.

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

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

SO ORDERED.

Teehankee (Chairman), Makasiar, Muñoz Palma and Guerrero, JJ., concur.

G.R. No. L-17690             June 14, 1922

YU BIAO SONTUA & CO., plaintiff-appellee, vs.MIGUEL J. OSSORIO, defendant-appellant.

Antonio Sanz and Kincaid, Perkins and Kincaid for appellant.M. H. de Joya for appellee.

ROMUALDEZ, J.:

On the evening of the 13th of March, 1920, a fire broke out on board the motor boat Alfonso when this boat was in the Pasig

River, city of Manila, ready to weigh anchor. A short distance from the Alfonso the steamer Y. Sontua was lying alongside moored to the wharf of said river.

The fire in the motor boat Alfonso spread to the steamer Y. Sontua, causing damages to her deck, according to plaintiff, amounting to P67,400.

The plaintiff, which is a regular partnership and the owner of the steamer Y. Sontua, brought this action to recover from the defendant, the owner and agent of said motor boat Alfonso, the aforementioned sum as indemnity for the damages alleged by the plaintiff to have been sustained by him through the negligence of the agents and employees of the said defendant, which caused the fire in the aforesaid motor boat Alfonso, wherefrom it spread, and caused said damages to the steamer Y. Sontua. These damages are specified in the two causes of action set forth in the complaint, in the first of which are mentioned the appurtenances and parts of the aforesaid vessel that were destroyed and damaged by the said fire, and for the repair of which the sum of P40,000 was expended. In the second cause of action it is alleged that the plaintiff sustained damages to the amount of P27,400 for the demurrage and delay in the ordinary voyages of the aforesaid vessel Y. Sontua. After denying generally and specifically the allegations of the complaint, the defendant alleges, as special defense, that he has taken no part either directly or indirectly in the acts alleged in the complaint; that if the plaintiff has sustained any damages, they are not the result of the act said to have been committed by the agents and employees of the defendant; and are not imputable to the negligence of the defendant, or any of his agents, employees, or mandatories.

The case having been tried, the court sentenced the defendant to pay the plaintiff the above-mentioned sum of P67,400, with legal interest thereon from the date of the filing of the complaint, and the costs.

From the judgment the defendant appeals to this court assigning three errors, to wit: (a) The finding that the explosion in question was due to the negligence of the persons in charge of the motor boat Alfonso; (b) the finding that the defendant is liable for the negligence of his agents and employees; and (c) the awarding of an excessive sum as damages.

With regard to the first error, the following facts are proven: That during the day and night of the 12th, and during the day of the 13th of March 1920, there were loaded in the said motor boat Alfonso 2,000 cases of petroleum and 8,473 cases of gasoline, of which 5,000 cases of gasoline and 2,000 of petroleum were placed in the hold of said motor boat, and the balance on deck; that said loading was done without permission from the customs authorities; that the said cases were loaded by means of straps supporting 10 or 12 cases at a time; that the said cases of gasoline and petroleum were placed in the hold about 14 feet from the boiler of the main engine and about 4 feet from the boiler of the smaller engine; that on the evening of the 13th of March, 1920, the smaller engine was in operation preparatory to the departure of the motor boat which, at that time, was getting ready to leave; that the fire in said motor boat burst out with an explosion followed by a violent expulsion of gasoline and petroleum; that owing to the proximity of the motor boat to the steamer Y. Sontua, the magnitude of the fire and the inflammability of the material that served as fuel, the fire spread to the said steamer Y. Sontua, and so rapidly that it was impossible for the crew of the Y. Sontua to check its progress,

Expert testimony was also introduced by the plaintiff to the effect that it is but natural that, after several transhipments of more than 8,000 cases of gasoline and 2,000 cases of petroleum there is bound to be a leakage, on an average of 1

to 4 cases per hundred, due to the fact that the loading is effected by means of straps supporting from 10 to 12 cases at a time which, quite frequently, receive violent bumps resulting in damage to the cans and the consequent leakage of either gasoline or petroleum, as the case may be.

It was also shown by expert testimony that the gases formed by the volatilization of the gasoline or petroleum leaking from the cases are apt to accumulate in a compartment, such as the hold of a ship, without sufficient ventilation causing the gases to ignite upon coming in contact with a spark or upon the temperature being sufficiently raised.

Under these circumstances we are constrained to hold that the fire which caused the damages for which the plaintiff seeks to be indemnified was the inevitable effect of the explosion and fire which occurred in the motor boatAlfonso; that this explosion and fire in the said motor boat is, with good ground, imputable to the negligence of the persons having charge at that time of said motor boat and under whose direction the loading of the aforesaid cases of petroleum and gasoline had been performed.

The trial court did not, therefore, commit the first error assigned by the appellant.

In the second assignment of error, the appellant contends that the defendant ought not to be held liable for the negligence of his agents and employees.

It is proven that the agents and employees, through whose negligence the explosion and fire in question occurred, were agents, employees, and mandatories of the defendant. Where the vessel is one of freight, a public concern or public utility, its owner or agent is liable for the tortious acts of his agents (arts. 587, 613, and 618, Code of Commerce; and arts. 1902, 1903, 1908, Civil Code). This principle has been repeatedly upheld in various decisions of this court.

The doctrines cited by the appellant in support of his theory have reference to the relations between principal and agent and his agents and employees; for this reason they cannot be applied in the present case.

In American law, principles similar to those in force in the Philippines and contained in the Code of Commerce above cited, are prevailing:

Vessel owner's liability in general. — The general liability of a vessel owner extends to losses by fire arising from other than a natural or other excepted cause, whether occurring on the ship accidentally, or communicated from another vessel, or from the shore; and the fact that fire produces the motive power of a boat does not affect the case. Such losses are not within the exceptions either of act of God, or peril of the sea, except by local custom, unless proximately caused by one of these events. In jurisdictions where the civil law obtains, however, it has been held that if property on a steamboat is destroyed by fire, the owners of the boat are not responsible, if it was being navigated with proper diligence, although the accident occurred at night. The common law liability extends even to loss by fires caused entirely by spontaneous combustion of the cargo, without any negligence on the part of master or crew. (R.C.L., vol. 24, pp. 1324-1325.)

With regard to the allegation that the obligations enumerated in article 612 of our Code of Commerce are inherent in the master such inherent duties do not limit to the latter the civil liability arising from their nonfulfillment, but while the master

is responsible to the ship agent, the ship agent, in turn, is responsible to third persons, as is clearly provided in article 618 of said Code, in which express mention is made, is subsections 5 and 7, of the duties enumerated in the said article 612.

Therefore there is also no ground for holding that the second error assigned by the appellant has been committed.

The third error is concerned with the amount of the damages sustained by the plaintiff.

It is sufficiently proven that the sum paid by the plaintiff to the Earnshaw Shipyards for the repairs made to the steamer Y. Sontua, damage to which was caused by the fire in question, amount to P27,968; that the materials used in said repairs and paid for by the plaintiff are worth P12,139.30. As to the damages sustained by the plaintiff on account of the delay of the steamer Y. Sontua, the evidence shows that this steamer was delayed ten days in the Pasig River, waiting for available space in the shipyard before it was taken to the said repair-shop; that it was not absolutely necessary that the repair of the damages caused by the fire should be made in the shipyard; that said vessel was taken to the shipyard for repair of some parts of it not damaged by the fire in question.

As the evidence does not sufficiently show the time consumed in repairing the actual damage caused by the said fire, nor the time employed in making the other repairs, and as the damage, if any, resulting from the ten days' delay in the Pasig River, is remote and, therefore, not chargeable to the defendant since said delay is in no way imputable to him, we think, in view of all of the circumstances of the case and taking into consideration the importance of all the repairs, whether by fire or otherwise, the delay of seventy days, according to the evidence of the plaintiff, chargeable to the defendant, should be reduced to one-half, or thirty-five days at the rate of P410.84 a day which is the net profit that the aforesaid steamer Y. Sontua failed to realize as a consequence of said delay. We find that the damages sustained by the plaintiff by reason of this delay amount to P14,379.40.

The plaintiff further asks that he be awarded, by way of damages, the sum of P4,400 covering maintenance and salary of the officers and crew of his steamer during the delay aforementioned. We do not feel that he is entitled to this item for the reason that such expenses have already been taken into account in determining the net daily profit above referred to. We find that the total sum which the plaintiff is entitled to recover from the defendant as damages under the facts stated is fifty-four thousand four hundred eighty-six pesos and seventy centavos (P54,486.70).

The judgment appealed from is hereby modified and the defendant sentenced to pay the plaintiff the sum of P54,486.70 with costs. So ordered.

Araullo, C.J., Avanceña, Villamor, Ostrand and Johns, JJ., concur.

G.R. No. L-32774             October 14, 1930

BALBINO CUISON, plaintiff-appellant, vs.NORTON & HARRISON CO., TELESFORO BINOYA Y ALMINANZA and FRANCISCO BAUTISTA Y CRUZ,defendants. NORTON & HARRISON CO., appellee.

Vicente Sotto for appellant. Gibbs and McDonough for appellee.

 

MALCOLM, J.:

This is an action brought by the father to recover damages in the amount of P30,000 for the death of his son, alleged to have been caused by the negligence of the defendant. The answer pleaded the general issue. The judgment in the Court of First Instance absolved the defendant from the complaint, without pronouncement as to costs.

A succinct statement of the facts will be first undertaken as follows: On the afternoon of August 9, 1928, Moises Cuison, a boy 7 years of age, the son of the plaintiff, was on his way to the Santa Mesa School, in the City of Manila, in company with his sister Marciana. As they came near to the fire station, some large pieces of lumber on a truck which had stopped fell from it pinning the boy beneath, and causing his almost instant death. The truck in questioned was owned by Antonio Ora. It was driven by Felix Jose, with Telesforo Binoya as the washing and Francisco Bautista as the helper, the two latter being youths less than18 years of age. Jose Binoya, and Bautista were employees of Ora. The truck was rented by Ora to Norton & Harrison Co. On the truck were the letters "N-H," which were the first letters of the firm name. Ora was in the employ of Norton & Harrison Co. as a capataz. It was his duty as such employee to direct the loading and transportation of the lumber. When the accident occurred the lumber had become loosened, and it was to rearrange it that the truck halted, without, however, there arrangement having been made before the pieces of lumber had fallen and killed the boy.

Important details were not brought out in the testimony, although it would have been easy to supply those details. The most important question of fact to determine was the relationship of Ora to Norton & Harrison Co., whether he was a servant of the company or an independent contractor. In view of the debatabel facts found in the record, and in view of the propriety of obtaining as much enlightenment as possible on the main issue, it is deemed advisable to set forth a considerable portion of Ora's testimony. He testified:

Q. Do you know the truck T-101? — A. Yes, sir.

Q. Whose is that truck ? — A. Mine.

Q. Showing you this document which I ask to be marked Exhibit 1(certificate of ownership of a truck ) state what is that document? — A.This is the document of my truck.

Q. On August 9,1928, when, according to the complaint, the boy Moises Cuison was killed, was that truck used? — A. Yes, sir.

Q. For Whom? — A. For me.

Q. For what kind of work? — A. For loading lumber.

Q. Lumber of whom? — A. Of Norton & Harrison Co.

Q. Where was the lumber to be taken? — A. To Santa Mesa.

Q. What was the agreement between you and Norton & Harrison Co. regarding the transportation of lumber to Santa Mesa?

x x x           x x x           x x x

A. The truck carried the lumber which I contracted with Norton & Harrison for transportation to certain places. I had an agreement with Norton & Harrison to carry and transport lumber coming from its lumber yard to the place of its destination.

Q. Did you rent the truck to Norton & Harrison monthly or annually? — A. By the cubic foot, depending upon the distance travelled.

Q. Do you know Telesforo Binoya y Alminanza and Francisco Bautista y Cruz? — A. Yes, sir.

Q. Had they anything to do with the loading of the lumber of Norton & Harrison on the truck?

x x x           x x x           x x x

A. The said Bautista and Binoya were not the ones who did the loading on my truck. There were other persons stronger than these two who did the loading.

Q. What I mean to say is whether Binoya and Bautista, on August 9,1928, when the truck went to the office of Norton & Harrison to carry lumber to Santa Mesa, had anything to do with the loading of the lumber on said truck ? — A. No, sir.

x x x           x x x           x x x

Q. In your agreement with Norton & Harrison for the transportation of lumber, who was under the obligation to load the lumber on the truck?

x x x           x x x           x x x

A. I have already said that the agreement with Norton & Harrison was to load the lumber on my truck and take it to its destination.

JUDGE:

Q. But who was to do the loading of the lumber, your men or their men? — A. My men.

x x x           x x x           x x x

Q. You said that you are an employee? — A. Yes, sir.

Q. Where are you employed? — A. In the firm of Norton & Harrison.

Q. Since when? — A. Since 1911.

Q. In what capacity? — A. As foreman.

Q. What kind of work do you have? — A. Foreman.

Q. Capataz? — A. Yes, sir.

Q. And as foreman, are you in charge of paying the wages of the workers? — A. No, sir.

Q. Therefore you are the capataz who directs the loading and transportation of lumber? — A. Yes, sir.

Q. Please see Exhibit 1 of the plaintiff and state if truck T-101 is what appears therein? — A. Yes, sir.

Q. Do you admit that the condition of that truck on August 9, 1928, is as it appears in this photograph? — A. yes, sir.

Q. What explanation can you give the court accounting for the sign 'N- H' which appears on the coach box of the truck? — A. The sign 'N-H' appearing there means that the lumber belongs to Norton & Harrison.

Q. And as a foreman of Norton & Harrison, do you receive any salary? — A. Yes, sir.

Q. How much? — A. P200.

Q. You said that you entered into a contract with Norton & Harrison, do you have a copy of that contract? — A. No, sir, we had an agreement and not a contract.

Q. Verbal agreement? — A. Yes,sir.

x x x           x x x           x x x

Q. How do you collect the rent of the truck, monthly or daily? — A. It depends upon the cargo and the distance travelled.

Q. Daily? — A. If I have loaded three times, then I have three collections.

Q. Do you issue receipts therefor? — A. Yes,sir.

Q. Have you any with you? — A. I don't have.

Q. Can that truck of yours be rented by anybody? — A. No, sir.

Q. Only by Norton & Harrison? — A. Only for my work.

Q. Do you have with you any books of account pertaining to the business of your truck? — A. No, sir.

Q. Not even a note? — A. I don't have.

Q. Not even the firm of Norton & Harrison? — A. They may have because the number of truck and the total number of board feet appear on every receipt.

Q. As owner of the truck, don't you have any note? — A. No, sir.

Q. Is that truck No. T-101 the only one you have? — A. I Have some more.

Q. Some more? — A. Yes, sir.

Q. For rent? — A. For my own use. 1awph!l.net

Q. For the exclusive use of Norton & Harrison ? — A. I have a lime factory, and they are used for the transportation lime.

Q. But this truck T-101 is exclusively intended to be rented by Norton & Harrison? — A. It is not rented exclusively to Norton & Harrison. I use it in my other contracts to carry cargoes, and also to carry lime.

Q. For the exclusive use of Norton & Harrison ? — A. No, sir, I use it also for the transportation of lime.

It is evident from the foregoing that Ora was a contractor and an employee at the same time of Norton & Harrison Co. Reverting now to the law, counsel for neither party has considered it necessary to assist the court in this regard. However, just as the ascertainment of the facts is important, so is it important to have before us the applicable law.

The Penal Code makes provisions for the civil liability of persons criminally liable, and establishes subsidiary liability for persons and corporations engaged in any kind of industry for felonies and misdemeanors committed by their servants in the discharge of their duties. (Penal Code, arts. 17-20.) In this instance, recurring to the facts, it should have been mentioned that the two youths, Binoya and Bautista, pleaded guilty to the crime of homicide through reckless negligence, and were sentenced accordingly.

The basis of civil law liability is not respondeat superior but the relationship of paterfamilias. This theory bases the liability of the master ultimately on his own negligece 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. As to Porto Rico, see Acosta vs. Porto Rico Gas Co. [1915], 7 Porto Rico Fed., 475; and Ortiz vs. Ezquiaga [1918], 10 Porto Rico Fed., 350.) Article 1902 of the Civil Code provides:

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. Article 1903, paragraphs 4 and 7 of the same Code provides:

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

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

It is well to repeat that under the civil law an employer is only liable for the negligence of his employees in the discharge of their respective duties. The defense of independent contractor would be a valid one in the Philippines just as it would be in the United States. Here Ora was a contractor, but it does not necessarily follow that he was an independent contractor. The reason for this distinction is that the employer retained the power of directing and controlling the work. The chauffeur and the two persons on the truck were the employees of Ora, the contractor, but Ora, the contractor, was an employee of Norton & Harrison Co., charged with the duty of directing the loading and transportation of the lumber. And it was the negligence in loading the lumber and the use of minors on the truck which caused the death of the unfortunate boy. On the facts and the law, Ora was not an independent contractor, but was the servant of the defendant, and for his negligence defendant was responsible.

Conceding that the record discloses a most unusual state of facts, and conceding that the evidence is not as ample as it should be, nevertheless on the record as it is and on the law as it is, it is incumbent on the court to rule that error was

committed in the lower court in not awarding the father of the dead boy damages for the wrongful death of his son. It has been the practice of this court in cases of death through negligence, in the absence of special proof, to allow the sum of P1,000. (Manzanares vs. Moreta [1918], 38 Phil., 821; Bernal and Enverso vs. House and Tacloban Electric & Ice Plant [1930], 54 Phil., 327.) Judgment will be reversed, and in the court of origin another judgment will issue in favor of the plaintiff and against the defendant for the sum of P1,000. So ordered, without special finding as to costs in either instance.

Avanceña, C.J., Street, Villamor and Romualdez, JJ., concur.

 

G.R. No. L-10073 December 24, 1915

BUTARO YAMADA, plaintiff-appellee, vs.THE MANILA RAILROAD CO., defendant, and BACHRACH GARAGE & TAXICAB CO., defendant-appellant.

G.R. No. L-10074 December 24, 1915

KENJIRO KARABAYASHI, plaintiff-appellee, vs.THE MANILA RAILROAD CO., defendant, and BACHRACH GARAGE & TAXICAB CO., defendant-appellant.

G.R. No. L-10075 December 24, 1915

TAKUTARU UYEHARA, plaintiff-appellee, vs.THE MANILA RAILROAD CO., defendant, and BACHRACH GARAGE & TAXICAB CO., defendant-appellant.

D.R. Williams for appellant.Rohde and Wright for appellees.

 

MORELAND, J.:

The three cases dealt with in this decision differ in their facts only with respect to the injury suffered by the respective plaintiffs. The law applicable to them is the same and, at the request of counsel, they will be decided at the same time. Plaintiffs claim damages against both the railroad and the garage company because of injuries suffered by them in a collision between a train owned by and operated over tracks belonging to the railroad company and an automobile the property of the Bachrach Garage & Taxicab Co.

On January 2, 1913, the plaintiffs, together with three companions, hired an automobile from the defendant taxicab company for a trip to Cavite Viejo. The automobile was secured at a certain price hour and was driven and controlled by a chauffeur supplied by the taxicab company. The journey to Cavite Viejo was made without incident but, on the return trip, while crossing the tracks of defendant railroad company in the barrio of San Juan, municipality of Cavite Viejo, the automobile was struck by a train and the plaintiffs injured.

The trial court dismissed the complaint on the merits as to the Manila Railroad Company and held the defendant taxicab company liable for damages to the plaintiffs in various amounts. The taxicab company appealed.

It appears from the record, and was found by the trial court, that the driver of the automobile drove his machine upon the railroad tracks without observing the precautions which ordinary care and prudence would require, without reducing speed and without taking any precaution looking to determining whether there was danger from a train or locomotive. The trial court accordingly found that the driver was guilty of gross negligence and that said negligence was the proximate cause of the accident. It also found that the driver had been, in effect, instructed by the taxicab company to approach and pass over railroad tracks in the manner and form followed and observed on the occasion in question, and that, for that reason, the taxicab company was liable for the damages caused.

Several errors are assigned by the appellant. The first one relates to the finding of the trial court: "That the driver of the automobile did not slacken speed, which was fast, upon approaching the railroad crossing, which was clearly visible and had to be approached on an upward grade, or take any other precaution to avert accident. ... and I can but conclude that the driver of the automobile was grossly negligent and careless in not taking such precaution as would have notified him of the coming of the train. On the contrary, he proceeded with reckless speed and regardless of possible or threatened danger. If he had been driving the automobile at a proper rate of speed for going over railroad crossing he could easily have stopped before going over the railroad crossing after seeing the train."

The argument of the appellant which is devoted to this findings seems to admit impliedly at least that the driver of the automobile maintained his rate of speed as he approached and went upon the railroad crossing; and that he took no precaution to ascertain the approach of a train.1awphil.net

The appellant contended on the trial and offered evidence to prove that, on approaching the railroad crossing from the direction in which the automobile was travelling at the time, the view of the railroad tracks in both directions was obstructed by bushes and trees growing alongside thereof, and that it was impossible for a person approaching the crossing even though on guard, to detect by sight the approach of a train. If that were the case, it was clearly the duty of the driver to reduce the speed of his car and the noise thereof to such an extent that he would be able to determine from the unrestricted and uninterrupted use of all his faculties whether or not a train was near. It is the law that a person must use ordinary care and prudence in passing over a railroad crossing. While we are not prepared to lay down any absolute rule as to what precise acts of precaution are necessary to be done or left undone by a person who may have need to pass over a railroad crossing, we may say that it is always incumbent on him to use ordinary care and diligence. What acts are necessary to constitute such care and diligence must depend on the circumstances of each particular case. The degree of care differs in different cases. Greater care is necessary in crossing a road where the cars are running at a high rate of speed and close together than where they are running at less speed and remote from one another. But in every case due care should be exercised. It is very possible that where, on approaching a crossing, the view of the tracks in both directions is unobstructed for such a distance as to render it perfectly safe to pass over without the use of any other faculty than sight, such use alone is sufficient and it is not necessary to stop or even to slacken speed or listen. On the other hand, where the view of the tracks is obstructed, them it is driver's duty to slacken speed, to reduce the noise, if any, of the vehicle, to look and to listen, if

necessary, or do any other act necessary to determine that a train is not in dangerous proximity to the crossing.

In the case at bar the appellant's own showing is to the effect that the view of the track in the direction from which the train was coming was obstructed in such manner that neither the track nor a train could be seen as a traveler approached the crossing; and yet, in spite of that fact, the chauffeur drove upon the tracks without investigation or precaution of any kind. The very fact that a train was approaching and was so near as to collide with the automobile is strong evidence of the fact that no precautions were taken to determine that fact. It is undoubted that if the driver had taken the simplest means of permitting his own faculties to exercise themselves fairly, there would have been no accident, as the presence of the train would have been discovered in an instant; but he chose, rather, to give his senses no opportunity to protect him or his passengers and drove on the track at full speed with all the noise which an automobile produces at such speed on an upgrade and the sense of hearing impaired by the rush of the wind. Railroad trains rarely pass over tracks without noise and their presence, generally speaking, is easily detected by persons who take ordinary precautions.

Under this assignment the appellant's main effort is being to the demonstration of the fact that there was a custom established among automobile drivers of Manila by which they habitually drove their cars over railroad crossings in the manner in which the automobile was driven by defendant's servant on the occasion in controversy. To prove that custom counsel presents the evidence of the president of the defendant company, Mr. Bachrach, who testified on the trial that all of his drivers, including the one in charge of the car on the night of the accident, operated cars in that manner and that it was the custom among automobile drivers generally. Counsel also cites the testimony of the witness Palido, living near the scene of the accident, who testified that, as a general rule, automobiles passed over the railroad crossing without changing speed. This testimony was corroborated by the defendant company's driver who had the automobile in charge at the time of the occurrence. Basing himself on this alleged custom counsel contends that "When a person does what is usual and customary, i. e., proceeds as he and others engaged in a like occupation have been accustomed to proceed, the action cannot be characterized as reckless, nor, strictly speaking as negligent." To this the obvious reply may be made, for the moment admitting the existence of the custom, that a practice which is dangerous to human life cannot ripen into a custom which will protect anyone who follows it. To go upon a railroad crossing without making any effort to ascertain the approach of a train is so hazardous an act and one so dangerous to life, that no one may be permitted to excuse himself who does it, provided injury result. One who performs an act so inherently dangerous cannot, when an accident occurs, take refuge behind the plea that others have performed the same act safely.

Under the second error assigned, the appellant contends with much vigor that the plaintiffs cannot recover for the reason that the negligence of the driver of the automobile, if any, was imputable to them, they having permitted the driver to approach and pass over the railroad crossing without the use of ordinary care and diligence to determine the proximity of a train or locomotive, and having made no effort to caution or instruct him or compel him to take reasonable care in making the crossing. With this contention we cannot agree. We think the better rule, and one more consonant with the weight of authority, is that a person who hires a public automobile and gives the driver direction as to the place to which he wishes to be conveyed, but exercise no other control over the conduct of the driver, is not responsible for acts of negligence of the latter or prevented from recovering for injuries suffered from a collision between the automobile and a train, caused by the negligence either of the locomotive engineer or the automobile driver. (Little vs. Hackett, 116 U.S., 366.) The

theory on which the negligence of the driver has in some instances been imputed to the occupant of the vehicle is that, having trusted the driver by selecting the particular conveyance, the plaintiff so far identified himself with the owner and his servants that, in case of injury resulting from their negligence, he was considered a party thereto. This was the theory upon which the case of Thorogood vs. Bryan (8 C.B., 115) was decided, which is the leading case in favor of the principle contended for by appellant. The Supreme Court of the United States, however, in Little vs. Hackett (116 U.S., 366), had this to say concerning the ground on which the Thorogood case was decided: "The truth is, the decision in Thorogood vs. Bryan rests upon indefensible ground. The identification of the passenger with the negligent driver or the owner, without his personal cooperation or encouragement, is a gratuitous assumption. There is no such identity. The parties are not in the same position. The owner of public conveyance is a carrier, and the driver or the servant of the passenger, and his asserted identity with them is contradicted by the daily experience of the world."

Further discussing the same question the court said: "There is no distinction in principle whether the passenger be on public conveyance like a railroad train or an omnibus, or be on a hack hired from a public stand in the street for a drive. Those on a hack do not become responsible for the negligence of the driver if they exercise no control over him further than to indicate the route they wish to travel or the places to which they wish to go. If he is their agent so that his negligence can be imputed to them to prevent their recovery against a third party, he must be their agent in all other respects, so far as the management of the carriage is concerned, and responsibility to third parties would attach to them for injuries caused by his negligence in the course of his employment. But, as we have already stated, responsibility cannot, within any recognized rules of law, be fastened upon one who has in no way interfered with and the with and controlled in the matter causing the injury. From the simple fact of hiring the carriage or riding in it no such liability can arise. The party hiring or riding must in some way have cooperated in producing the injury complained of before he incur any liability for it. 'If the law were otherwise,' as said by Mr. Justice Depue in his elaborate opinion in the latest case in New Jersey, 'not only the hirer of the coach but also all the passengers in it would be under a constraint to mount the box and superintend the conduct of the driver in the management and control of his team, or be put for remedy exclusively to an action against the irresponsible driver or equally irresponsible owner of a coach taken, it may be, from a coach stand, for the consequences of an injury which was the product of the cooperating wrongful acts of the driver and of a third person, and that too, though the passengers were ignorant of the character of the driver, and of the responsibility of the owner of the team, and strangers to the route over which they were to be carried.' (New York, Lake Erie & Western Railroad vs. Steinbrenner, 47 N.J.L. [18 Vroom], 161, 171.)"

We are of the opinion, therefore, that the rule is as we have stated it. Ordinarily where one rides in public vehicle with the driver thereof and is injured by the negligence of a third person, to which negligence that of the driver contributes his contributory negligence is not imputable to the passenger unless said passenger has or is in the position to have and exercise some control over the driver with reference to the matter wherein he was negligent. Whether the person injured exercises any control over the conduct of the driver further than to indicate the place to which he wishes to drive is a question of fact to be determined by the trial court on all of the evidence in the case. (Duval vs. Railroad Co., 134 N. C., 331; Hampel vs. Detroit etc. R. R. Co., 110 Am. St. Rep., 275; Cotton vs. Willmar etc. R. R. Co., 99 Minn., 366; Shultz vs. Old Colony Street Ry. Co., 193 Mass., 309; Wilson vs. Puget Sound Elec. Ry. Co., 52 Wash., 522; Johnson vs. Coey, 237 Ill., 88; Hindu vs. Steere, 209 Mass. 442.)

The appellant assigns as the third error the finding of the trial court "that the defendant Manila Railroad Company was not guilty of negligence which contributed to the causing of the accident complained of."

In this connection it appears that, prior to the beginning of the action now before us, two actions were instituted, both growing out of the accident which forms the basis of the actions before us: (1) A criminal action against the engineer of the train, in which the engineer was acquitted; and (2) a civil action for damages by the garage and taxicab company, the appellant herein, against the defendant railroad company, for damages to the automobile which was destroyed as a result of the accident, in which judgment was for defendant. There is evidence in the record showing that the locomotive engineer gave due and timely signals on approaching the crossing in question. The trial court found that the employees of the railroad company fully performed their duty as the train approached the crossing on the night in question and that, therefore, the railroad company in nowise contributed to the accident. We do not believe that the record will justify us in a reversal of this finding. There is abundant evidence to support it and we have nothing before us by which that evidence may be impeached. That the bell was rung and the whistle was blown on nearing the crossing, giving due and timely warning to all persons approaching, was testified to not only by servants of the corporation but by passengers on the train. We find nothing in the record which materially impairs the credibility of these witnesses or to show that their evidence is improbable or unreasonable; and we would be going far under such circumstances in discarding it and reversing a judgment based thereon.

The appellant under this assignment of error presents other facts which he claims show necessarily that the company was negligent. He asserts: "(1) That this accident occurred in the heart of the barrio of San Juan (Cavite Viejo), within approximately one hundred meters of the railroad station, that is, in a populous community; (2) that the railroad company did not maintain either a flagman or protecting gates at the grade crossing where the accident occurred, while the sign "Railroad Crossing" was broken on the side toward the road; (3) that trees and undergrowth had been permitted to grow on and adjoining the right of way and houses were constructed thereon, in such manner as to obstruct the view of persons approaching the railroad track until within a few meters thereof; and (4) that the approach to the crossing is twisting, and on either side thereof are ditches about two meters deep."

With respect to the existence of trees and undergrowth on the railroad company's right of way, the evidence is conflicting, plaintiff maintaining and attempting to prove that such trees and undergrowth existed, while defendant company contended and offered evidence to show that no such growth existed at the time of the accident. On this conflict of evidence the trial court found: "Evidence on the part of the defendant Bachrach Garage & Taxicab Co. is to the effect that the view from the crossing along the track towards Manila was obstructed by bushes growing on the railroad right to way along the track, while the preponderance of the evidence discloses that for a distance of twelve or fifteen meters from the a view of the track for a considerable distance is wholly unobstructed, and I can but conclude that the driver of the unobstructed, and I can but conclude that the driver of the automobile was grossly negligent and careless in not taking such precaution as would have notified him of the coming of the train. On the contrary, he proceeded with reckless speed and regardless of possible or threatened danger."

Here again we are met with a contradiction in the evidence of witnesses who, so far as appears, are equally entitled to credit, which conflict has been resolved by the trial court in favor of the witnesses for the defendant railroad company. Counsel for appellant has failed to give any reason why we

should we should accept the testimony of appellant's witnesses rather than those of the railroad company and he has also neglected to point out any error committed by the trial court in making its finding in this regard. A careful examination of the record discloses no reason why the judgment of the trial court on this point should be disturbed, there appearing nothing on which we could base a judgment declaring that the trial court erred in making its decision.

As to the other facts set forth on which appellant predicates negligence on the part of the railroad company, we find them, even if admitted, to be insufficient to establish negligence. It is not negligence on the part of the railroad company to maintain grade crossing, even in populous district; nor is it negligence not to maintain a flagman at such crossing. It is true that a railroad company is held to greater caution in the more thronged streets of the densely populated portions of the city than in the less frequented streets in suburban parts or in towns; but this does not mean that it is negligence to maintain grade crossing in such densely populated portions or that it is negligence not to maintain a flagman at crossings located in such districts. It simply means that the company in operating its trains over such crossings must exercise care commensurate with the use of crossings in any given locality.

The main contention of the appellant is based on the claim that, even admitting as proved all of the facts alleged by the plaintiffs, the appellant is not liable. It is maintained that up to the time the accident occurred the defendant taxicab company had fully performed its duty to the public, it being undisputed in the record that the driver was competent and had a long and satisfactory record, having driven cars for the defendant for 5 or 6 years without accident or misadventure, and that his negligence, if any, in attempting to pass over the crossing on the occasion before us, cannot legally be imputed to the taxicab company so as to make it liable for the damages resulting therefrom. In supporting of this argument the case of Johnson vs. David (5 Phil., Rep., 663), is cited as determinative of the question under consideration. The appellant, however, having denied the fact of negligence, we might, before entering on a discussion of the applicability of the principles enunciated in Johnson vs. David to the facts before us, repeat what we have already said, that it appears from the record, and was found by the trial court, that the driver of the automobile drove his machine upon the railroad tracks without observing the precautions which ordinary care and prudence would have required. He made substantially no effort toward ascertaining whether there was danger from a train or locomotive. The trial court found, as was quite necessary under the facts, that the driver was guilty of gross negligence and that such negligence was the proximate cause of the accident. It also found that the taxicab company had permitted its drivers to approach and pass over railroad tracks in the manner and form followed and observed on the occasion in question until it had become a custom among its drivers, known and sanctioned by the company; and that, for that reason, the taxicab company was liable for the damages caused. We are of the opinion that the trial court is fully supported in the finding that the conduct of the officials of the taxicab company, and notably the president thereof, amounted, in law, to a sanction of the custom established among its automobile drivers in passing over railroad crossings. Counsel is met, therefore, at the opening of his discussion on this branch of the case, with the question: Did the defendant taxicab company fully discharge its duty when it furnished a suitable and proper car and selected driver who had been with the company for 5 or 6 years and who had not had an accident or misadventure before? We think not. It was the duty of the company not only to furnish a suitable and proper car and select a competent operator, but also to supervise and, where necessary, instruct him properly.

Returning now to the applicability of the case of Johnson vs. David to the facts before us:

The Civil Code, in dealing with the liability of a master for the negligent acts of his servant, makes a distinction between private individuals and public enterprises. (Art. 1903, Civil Code.) That article, together with the preceding article, is as follows:itc-a1f

ART 1902. 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.

ART. 1903. The obligation imposed by the preceding article is demandable, not only for personal acts and omissions, but also for 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.

Guardians are liable for the damages caused by minors or incapacitated persons who are under their authority and live with them.

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 on account of their duties.

The State is liable in this sense when it acts through a special agent, but not when the damage should have been caused by the official to whom properly it pertained to do the act performed, in which case the provisions of the proceeding article shall be applicable.

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

The liability referred to in this articles 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.

These two articles are found under chapter 2, title 16, of the Civil Code, dealing with "obligations which arise from fault or negligence;" and set out the cases, generally speaking, in which the master is liable for the acts of his servant. That chapter also contains articles providing for liability for negligent acts of servants in special cases, among them 1905, which provides that "the possessor of an animal, or the one who uses it, is liable for the damages it may cause even when said animal escapes from him or strays," but that this liability shall cease "in the case the damage should arise from force majeure or from the fault of the person who may have suffered it;" 1906, which declares that "the owner of a game preserve shall be liable for damages caused by the game to neighboring estates, should he not have done what may have been necessary to avoid increase of the same or should he have hindered the efforts of the owners of said estates to hunt;" 1907, which provides for the liability of the owner of a building "for damages which may result from the collapse of the whole or a part thereof, if it should occur through the absence of necessary repairs;" 1908, which states that "owners shall be liable for damages caused by the explosion of machines which may not have been cared for with due diligence, and been placed in a safe and proper place;" "by excessive smoke, which may be noxious to persons of property;" "by the fall of trees, located in places of transit, when not caused by force majeure;" "by the emanations of

sewers or deposits of infectious matters, when constructed without precautions proper for the place where they are located;" and "the head of a family who dwells in a house, or in a part of the same, is liable for the damages by the things which may be thrown or which may fall therefrom."

These are the only cases under the Civil Code in which damages may be recovered from the master for the negligent of his servant. As is seen from a reading of article 1903, a person being driven about by his servant's negligent acts except under certain circumstances. (Chapman vs. Underwood, 27 Phil., Rep., 374; Johnson vs. David, supra.) On the other hand, 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.

The distinction made in the Code has been observed, as would naturally be expected, by the decisions of this court. In the case of Johnson vs. David, supra, we held that the defendant was not liable for the acts of his servant in negligently driving a horse and carriage against plaintiff, who was at the time riding a bicycle in the streets of Manila, throwing him to the ground and injuring him and his bicycle. It appeared in that case that the vehicle was owned by the defendant, that it was being driven by the defendant's coachman on the private affairs of the owner, that it was not a public conveyance driven for hire or as a part of a business or enterprise. In that case we said: "It would seem, from an examination of these various provisions, that the obligation to respond for the negligent acts of another was limited to the particular cases mentioned; in other words, we are of the opinion and so hold that it was the intention of the legislature in enacting said chapter 2 to enumerate all the persons for whose negligent acts third persons are responsible. Article 1902 provides when a person himself is liable for negligence. Articles 1903, 1904, 1905, 1906, 1907, 1908, and 1910 provide when a person shall be liable for injuries caused, not by his own negligence but by the negligence of other persons or things.

xxx xxx xxx

These sections do not include a liability on the part of the plaintiff for injuries resulting from acts of negligence such as are complained of in the present cause . . . ."

These case of Chapman vs. Underwood, (27 Phil., Rep., 374) was similar in its facts and the principles governing it, to that of Johnson vs. David. In that case the plaintiff, while about to board a street car, was struck by an automobile which, at the time, was being driven on the wrong side of the street. The automobile was in charge of the servant of the owner, who was present in the automobile at the time the accident occurred. The automobile was not a part of defendant's business nor was it being used at the time as a part or adjunct of any business or enterprise owned or conducted by him. Although the act of the driver was negligent, and was so declared by this court, it was, nevertheless, held that the master was not liable for the results of the act. We said:

The defendant, however, is not responsible for the negligence of his driver, under the facts and circumstances of this case. As we have said in the case of Johnson vs. David (5 Phil., Rep., 663), the driver does not fall within the list of person in article 1903 of the Civil Code for whose acts the defendant would be responsible.

Although in the David case the owner of the vehicle was not present at the time the alleged negligent acts were committed by the driver, the same rule

applies where the owner is present, unless the negligent acts of the driver are continued for such a length of time as to give the owner a reasonable opportunity to observe them and to direct his driver to desist therefrom. An owner who sits in his automobile, or other vehicle, and permits his driver to continue in a violation of the law by the performance of negligent acts, after he has had a reasonable opportunity to observe them and to direct that the driver, becomes himself responsible for such acts. The owner of an automobile who permits his chauffeur to drive up the Escolta, for example, at a speed of 60 miles an hour, without any effort to stop him, although he has had a reasonable opportunity to do so, becomes himself responsible, both criminally and civilly, for the results produced by the acts of his chauffeur. On the other hand, if the driver, by a sudden act of negligence, and without the owner having a reasonable opportunity to prevent the act or its continuance, injures a person or violates the criminal law, the owner of the automobile, although present therein at the time the act was committed, is not responsible, either civilly or criminally, therefor. The act complained of must be continued in the presence of the owner for such a length of time that the owner, by his acquiescence, makes his driver's act his own.

In the case before us it does not appear from the record that, from the time the automobile took the wrong side of the road to the commission of the injury, sufficient time intervened to afford the defendant an opportunity correct the act of his driver. Instead, it appears with fair clearness that the interval between the turning out to meet and pass the street car and the happening of the accident was so short as not to be sufficient to charge defendant with the negligence of the driver.

The case of Bahia vs. Litonjua and Leynes (30 Phil., Rep., 624), was a case of a different character. There an automobile was being operated by the defendant as a public vehicle carrying passengers from Balayan to Tuy (Province of Batangas) and return for hire. On one to the trips, the machine, by reason of a defect in the steering gear, refused to respond to the guidance of the driver and, as a result a child was run over and killed. That case, as is seem at a glance, is quite different from the case of Johnson vs. David and that of Chapman vs. Underwood, in that the automobile was operated as a business or enterprise on which the defendant had entered for gain; and this is the particular distinction which is made in article 1903 of the Civil Code which holds the masters responsible for the negligent acts of the servant when the master is the owner "of an establishment or enterprise," and the acts complained of are committed within the scope of the servant's employment in such business. In the case under discussion we held that, in addition to the requirement to furnish and use proper and safe machines, it was the duty of a person or corporation operating automobiles for hire to exercise ordinary care and diligence in the selection of the drivers of his or its automobiles and in supervision over them while in his or its employ, including the promulgation of proper rules and regulations and the formulation and due publication of proper instructions for their guidance in cases where such rules, regulations and the formulation and due publication of proper instructions for their guidance in cases where such rules, regulations and instruction are necessary. Discussion article 1903 of the Civil Code, which, as we have seen, not only established liability in case of negligence but also provides when that liability ceases, the court in that case said:

From this article two things are apparent: (1) That when an injury is caused by the negligence of a servant or employee there instantly arises a

presumption of law that there was negligence on the part of the master or employer either in the selection of the selection of the servant or employee or in supervision over him after the selection, or both; and (2) that that presumption is juris tantum and not juris et de jure and consequently may be rebutted. It follows necessarily that if the employer shows to the satisfaction of the court that in selection and supervision he has exercised the care and diligence of a good father of a family, the presumption is overcome and he is relieved from liability.

This theory bases the responsibility of the master ultimately on his own negligence and not on that of his servant. This is the notable peculiarity of the Spanish law of negligence. It is, of course, in striking contrast to the American doctrine that, in relations with strangers, the negligence of the servant is conclusively the negligence of the master.

In the case before us the death of the child caused by a defect in the steering gear of the automobile immediately raised the presumption that Leynes was negligent in selecting a defective automobile or in his failure to maintain it in good condition after selection and the burden of proof was on him to show that he had exercised the care of a good father of a family.

In that case we further said: "From the commencement of the use of the machine until the accident occurred sufficient time had not elapsed to require an examination of the machine by the defendant as a part of his duty of inspection and supervision. While it does not appear that the defendant formulated rules and regulations for the guidance of the drivers and gave them proper instructions, designed for the protection of the public and the passengers, the evidence shows, as we have seen, that the death of the child was not caused by a failure to promulgate rules and regulations. It was caused by a defect in the machine as to which the defendant has shown himself free from responsibility."

We, therefore, see that taxicab company did not perform its full duty when it furnished a safe and proper car and a driver with a long and satisfactory record. It failed to comply with one of the essential requirements of the law of negligence in this jurisdiction, that of supervision and instruction, including the promulgation of proper rules and regulations and the formulation and publication of proper instructions for their guidance in cases where such rules and regulations and instructions are necessary. To repeat, it was found by the trial court, and that finding is fully sustained by the record, that it was the custom of the driver who operated the machine on the night of the accident, to approach and pass over railroad crossings without adequate precautions, and that such custom was known to and had been sanctioned by the officials of the taxicab company, the president of the company testifying that none of its drivers, especially the one who operated the car on the night of the accident, were accustomed to stop or even reduce speed or take any other precaution in approaching and passing over railroad crossings, no matter of what nature, unless they heard "the signal of a car." He testified that he himself had ridden behind several of his drivers, among them the one who handled the automobile on the night of the accident, and that it was settled practice, to which he made no objection and as to which he gave no instructions, to approach and pass over railroad crossings without any effort to ascertain the proximity of a train. These facts and circumstances bring the case within the doctrine enunciated in the Litonjua case to which reference has already been made, and, at the same time, remove it from that class of cases governed by Johnson vs. David. Not only has the defendant taxicab company failed to rebut the presumption of negligence arising from the carelessness of its servant, but it has, in effect, made those negligent acts its own by having observed and known the

custom of its drivers without disapproving it and without issuing instructions designed to supersede it.

We are of the opinion that the trial court erred in fixing the amount of damages which the plaintiffs suffered. Under the law, each of the plaintiffs, is entitled to recover the time, doctors' bills and hospital bills and hospital bills and medicines, and any other item of expense which it was found necessary to undergo by reason of the damages sustained.

The plaintiff Butaro Yamada is entitled to be reimbursed for his hospital bill of P49, for the P50 which he paid to Dr. Strahan, and for the loss of time which he suffered at the rate of P100 a month. The trial court allowed him for certain alleged fees of doctors and expenses in hospitals and at hot springs in Japan. He was also allowed P150 alleged by him to have been paid to a Japanese doctor in Manila. We do not believe that the record warrants these allowances. As to the expenses in Japan, we may say that the injury occurred to plaintiff on the 2nd of January and he remained in Manila for nearly 6 months before going to Japan. According to the testimony of Dr. Strahan the plaintiff was in good physical condition long before he left this country for Japan. His testimony is to the effect that the plaintiff suffered no permanent injuries, the damage being limited to temporary shocks and bruises, and that he would be ready for his usual occupation in about 3 months. According to plaintiff's own testimony he went back to work 2 months after the injury, but, claiming he still felt pains, went to Japan. We do not believe that we ought to accept the plaintiff's bare statement as to his physical condition after leaving the Philippine Islands in defiance of the testimony of Dr. Strahan as to his physical condition 3 months after the injury was received and particularly in view of the fact that he returned to work at the end of 2 months. As to the P150 alleged to have been paid to a Japanese doctor in Manila, we have grave doubts whether he had sufficiently proved that item of expenditure. He does not give the name of the physician to whom he paid the money and he presents no receipt or voucher from the person whom he paid. He made no memorandum of the payment at the time or of the person to whom he paid it or of the date on which it was paid. All of his testimony relating to the items which constitute his damage was based on a memorandum made from memory on the morning of the trial. It seems to us that where the sources of knowledge are to so large an extent within the knowledge and control of the person who presents the evidence, he should be held rather strictly to presenting the best evidence that the circumstances permit. If he had offered the Japanese doctor as a witness or if he had even produced receipts from him, the matter would have borne quite a different aspect.

We are accordingly of the opinion that the judgment in favor of this plaintiff should consist simply of the loss of time, amounting to 2 months at P100 a month, his hospital bill of P49 and his doctor's bill of P50, in all P299, with costs.

With respect to the plaintiff Takutaru Uyehara, the judgment in his favor must be also modified. Concerning his condition we have substantially the same testimony by the same doctor that we had in the case of Yamada. There were no permanent injuries. The plaintiff suffered merely from shock and bruises. He was quite recovered in 3 months. It appears that he was earning P200 a month at the time of his injury and that his hospital expense, including attendance of a physician, was P350. We are satisfied from the record that he is entitled to P600 for 3 months' loss of wages and to P350 for hospital expenses and medical attendance. As to the claim for P150 paid to a Japanese doctor, we have in substance the same circumstances found in connection with the claim of the plaintiff Yamada, — no name, no date, no memorandum, no receipt; nothing but the testimony of the plaintiff himself based upon date prepared from memory. It is worthy of note also that both this plaintiff and plaintiff Yamada claim to have paid exactly the same amount to Japanese doctors in Manila.

Judgment is hereby rendered in favor of the plaintiff Takutaru Uyehara for the sum of P950, and costs.

With respect to the judgment in favor of the plaintiff Kenjiro Karabayashi, we are clear that it must be reduced in amount. This plaintiff was able, immediately after the accident occurred, to move about readily an to assist his injured companions. He did not go to a hospital, or, so far as appeared, consult a physician until some time after the accident. He alleges that he paid to Japanese doctors P310 and to massage doctors P130, and that he paid P365 for medicines. The injury was received on the 2d of January, 1913, and this caution was commenced in October of the same year. It seem to us incredible that the plaintiff, who suffered and suffers from no physical injury testified to by any physician, should have paid out during that time more than P800 for medicines and doctors. That sum exceeds the sums claimed to have been paid out by the other plaintiffs, who were so badly injured that they were carried in a semiconscious condition to the hospital and were unable to move without assistance for some days.

This plaintiff complains of loss of memory as the only result of his injuries and claims that he is unable to obtain a salary equivalent to that which he was receiving before the accident. He presents no evidence of such loss of memory except his own statement, his physical condition at the time of the trial being apparently perfect and there being at that time no evidence, as he himself admitted, of loss of memory. He presented no doctor to testify as to services rendered, indeed, he does not even furnish the name of the person to whom the money was paid, and he shows no receipts and produces no evidence except his own statement with respect to the amount paid out for medicines. We believe that, under this testimony, no damages should be allowed to this plaintiff except possibly salary for the short period during which, by reason of shock, he may have been unable to render active service. He testified that he lost two and one-half months' time, during which he did not work at all, and that his services were worth P160 a month.

The judgment of the Court of First Instance with respect to this plaintiff, Kenjiro Karabayashi, is modified and judgment in his favor and against the Bachrach Garage & Taxicab Co. for P400 is hereby decreed, with costs.

It may be urged that the reductions in the amounts allowed the several plaintiffs by the trial court are arbitrary, the evidence as to the damages sustained being uncontradicted and the trial court having based its judgment thereon. It is clear, however, that we are in no way interfering with the rule so many times laid down by this court that we will not interfere with the judgment of the trial court as to the credibility of witnesses except where it appears that the court overlooked or misapplied facts or circumstances of weight and influence appearing in the case. Here the trial court seems to have overlooked those facts and circumstances top which we have adverted and which we have made the basis of the modification. It nowhere appears in the decision of the trial court or elsewhere in the record that it took any of those facts and circumstances into consideration. So ordered.

G.R. No. L-39587             March 24, 1934

ALEKO E. LILIUS, ET AL., plaintiffs-appellants, vs.THE MANILA RAILROAD COMPANY, defendant-appellant.

Harvey and O'Brien for plaintiffs-appellants.Jose C. Abreu for defendant-appellant.

VILLA-REAL, J.:

This case involves two appeals, one by the defendant the Manila Railroad Company, and the other by the plaintiffs Aleko E. Lilius et al., from the judgment rendered by the Court of First Instance of Manila, the dispositive part of which reads as follows:

Wherefore, judgment is rendered ordering the defendant company to pay to the plaintiffs, for the purposes above stated, the total amount of P30,865, with the costs of the suit. And although the suit brought by the plaintiffs has the nature of a joint action, it must be understood that of the amount adjudicated to the said plaintiffs in this judgment, the sum of P10,000 personally belongs to the plaintiff Sonja Maria Lilius; the sum of P5,000, to the plaintiff Brita Marianne Lilius; the sum of P250, to Dr. Marfori of the Calauan Hospital, Province of Laguna, and the balance to the plaintiff Aleko E. Lilius.

In support of its appeal, the appellant the Manila Railroad Company assigns nine alleged errors committed by the trial court in its said judgment, which will be discussed in the course of this decision.

As a ground of their appeal, the appellants Aleko E. Lilius et al., in turn, assign two alleged errors as committed by the same court a quo in its judgment in question, which will be discussed later.

This case originated from a complaint filed by Aleko E. Lilius et al., praying, under the facts therein alleged, that the Manila Railroad Company be ordered to pay to said plaintiffs, by way of indemnity for material and moral damages suffered by them through the fault and negligence of the said defendant entity's employees, the sum of P50,000 plus legal interest thereon from the date of the filing of the complaint, with costs.

The defendant the Manila Railroad Company, answering the complaint, denies each and every allegation thereof and, by way of special defense, alleges that the plaintiff Aleko E. Lilius, with the cooperation of his wife and coplaintiff, negligently and recklessly drove his car, and prays that it be absolved from the complaint.

The following facts have been proven at the trial, some without question and the others by a preponderance of evidence, to wit:

The plaintiff Aleko E. Lilius has, for many years, been a well-known and reputed journalist, author and photographer. At the time of the collision in question, he was a staff correspondent in the Far East of the magazinesThe American Weekly of New York and The Sphere of London.

Some of his works have been translated into various languages. He had others in preparation when the accident occurred. According to him, his writings netted him a monthly income of P1,500. He utilized the linguistic ability of his wife Sonja Maria Lilius, who translated his articles and books into English, German, and Swedish. Furthermore, she acted as his secretary.

At about 7 o'clock on the morning of May 10, 1931, the plaintiff, his wife Sonja Maria Lilius, and his 4-year old daughter Brita Marianne Lilius, left Manila in their Studebaker car — driven by the said plaintiff Aleko E. Lilius — for the municipality of Pagsanjan, Province of Laguna, on a sight-seeing trip. It was the first time that he made said trip although he had already been to many places, driving his own car, in and outside the Philippines. Where the road was clear and unobstructed, the plaintiff drove at the rate of from

19 to 25 miles an hour. Prior thereto, he had made the trip as far as Calauan, but never from Calauan to Pagsanjan, via Dayap. He was entirely unacquainted with the conditions of the road at said points and had no knowledge of the existence of a railroad crossing at Dayap. Before reaching the crossing in question, there was nothing to indicate its existence and inasmuch as there were many houses, shrubs and trees along the road, it was impossible to see an approaching train. At about seven or eight meters from the crossing, coming from Calauan, the plaintiff saw an autotruck parked on the left side of the road. Several people, who seemed to have alighted from the said truck, were walking on the opposite side. He slowed down to about 12 miles an hour and sounded his horn for the people to get out of the way. With his attention thus occupied, he did not see the crossing but he heard two short whistles. Immediately afterwards, he saw a huge black mass fling itself upon him, which turned out to be locomotive No. 713 of the defendant company's train coming eastward from Bay to Dayap station. The locomotive struck the plaintiff's car right in the center. After dragging the said car a distance of about ten meters, the locomotive threw it upon a siding. The force of the impact was so great that the plaintiff's wife and daughter were thrown from the car and were picked up from the ground unconscious and seriously hurt. In spite of the efforts of engineer Andres Basilio, he was unable to stop the locomotive until after it had gone about seventy meters from the crossing.

On the afternoon of the same day, the plaintiff's entered St. Paul's Hospital in the City of Manila where they were treated by Dr. Waterous. The plaintiff Aleko E. Lilius suffered from a fractured nose, a contusion above the left eye and a lacerated wound on the right leg, in addition to multiple contusions and scratches on various parts of the body. As a result of the accident, the said plaintiff was highly nervous and very easily irritated, and for several months he had great difficulty in concentrating his attention on any matter and could not write articles nor short stories for the newspapers and magazines to which he was a contributor, thus losing for some time his only means of livelihood.

The plaintiff Sonja Maria Lilius suffered from fractures of the pelvic bone, the tibia and fibula of the right leg, below the knee, and received a large lacerated wound on the forehead. She underwent two surgical operations on the left leg for the purpose of joining the fractured bones but said operations notwithstanding, the leg in question still continues deformed. In the opinion of Dr. Waterous, the deformity is permanent in character and as a result the plaintiff will have some difficulty in walking. The lacerated wound, which she received on her forehead, has left a disfiguring scar.

The child Brita Marianne Lilius received two lacerated wounds, one on the forehead and the other on the left side of the face, in addition to fractures of both legs, above and below the knees. Her condition was serious and, for several days, she was hovering between life and death. Due to a timely and successful surgical operation, she survived her wounds. The lacerations received by the child have left deep scars which will permanently disfigure her face, and because of the fractures of both legs, although now completely cured, she will be forced to walk with some difficulty and continuous extreme care in order to keep her balance.

Prior to the accident, there had been no notice nor sign of the existence of the crossing, nor was there anybody to warn the public of approaching trains. The flagman or switchman arrived after the collision, coming from the station with a red flag in one hand and a green one in the other, both of which were wound on their respective sticks. The said flagman and switchman had many times absented himself from his post at the crossing upon the arrival of a train. The train left Bay station a little late and therefore traveled at great speed.

Upon examination of the oral as well as of the documentary evidence which the parties presented at the trial in support of their respective contentions, and after taking into consideration all the circumstances of the case, this court is of the opinion that the accident was due to negligence on the part of the defendant-appellant company, for not having had on that occasion any semaphore at the crossing at Dayap, to serve as a warning to passers-by of its existence in order that they might take the necessary precautions before crossing the railroad; and, on the part of its employees — the flagman and switchman, for not having remained at his post at the crossing in question to warn passers-by of the approaching train; the stationmaster, for failure to send the said flagman and switchman to his post on time; and the engineer, for not having taken the necessary precautions to avoid an accident, in view of the absence of said flagman and switchman, by slackening his speed and continuously ringing the bell and blowing the whistle before arriving at the crossing. Although it is probable that the defendant-appellant entity employed the diligence of a good father of a family in selecting its aforesaid employees, however, it did not employ such diligence in supervising their work and the discharge of their duties because, otherwise, it would have had a semaphore or sign at the crossing and, on previous occasions as well as on the night in question, the flagman and switchman would have always been at his post at the crossing upon the arrival of a train. The diligence of a good father of a family, which the law requires in order to avoid damage, is not confined to the careful and prudent selection of subordinates or employees but includes inspection of their work and supervision of the discharge of their duties.

However, in order that a victim of an accident may recover indemnity for damages from the person liable therefor, it is not enough that the latter has been guilty of negligence, but it is also necessary that the said victim has not, through his own negligence, contributed to the accident, inasmuch as nobody is a guarantor of his neighbor's personal safety and property, but everybody should look after them, employing the care and diligence that a good father of a family should apply to his own person, to the members of his family and to his property, in order to avoid any damage. It appears that the herein plaintiff-appellant Aleko E. Lilius took all precautions which his skill and the presence of his wife and child suggested to him in order that his pleasure trip might be enjoyable and have a happy ending, driving his car at a speed which prudence demanded according to the circumstances and conditions of the road, slackening his speed in the face of an obstacle and blowing his horn upon seeing persons on the road, in order to warn them of his approach and request them to get out of the way, as he did when he came upon the truck parked on the left hand side of the road seven or eight meters from the place where the accident occurred, and upon the persons who appeared to have alighted from the said truck. If he failed to stop, look and listen before going over the crossing, in spite of the fact that he was driving at 12 miles per hour after having been free from obstacles, it was because, his attention having been occupied in attempting to go ahead, he did not see the crossing in question, nor anything, nor anybody indicating its existence, as he knew nothing about it beforehand. The first and only warning, which he received of the impending danger, was two short blows from the whistle of the locomotive immediately preceding the collision and when the accident had already become inevitable.

In view of the foregoing considerations, this court is of the opinion that the defendant the Manila Railroad Company alone is liable for the accident by reason of its own negligence and that of its employees, for not having employed the diligence of a good father of a family in the supervision of the said employees in the discharge of their duties.

The next question to be decided refers to the sums of money fixed by the court a quo as indemnities for damages which the defendant company should pay to the plaintiffs-appellants.

With respect to the plaintiff-appellant Aleko E. Lilius, although this court believes his claim of a net income of P1,500 a month to be somewhat exaggerated, however, the sum of P5,000, adjudicated to him by the trial court as indemnity for damages, is reasonable.

As to the sum of P10,635 which the court awards to the plaintiffs by way of indemnity for damages, the different items thereof representing doctor's fees, hospital and nursing services, loss of personal effects and torn clothing, have duly been proven at the trial and the sum in question is not excessive, taking into consideration the circumstances in which the said expenses have been incurred.

Taking into consideration the fact that the plaintiff Sonja Maria Lilius, wife of the plaintiff Aleko E. Lilius is — in the language of the court, which saw her at the trial — "young and beautiful and the big scar, which she has on her forehead caused by the lacerated wound received by her from the accident, disfigures her face and that the fracture of her left leg has caused a permanent deformity which renders it very difficult for her to walk", and taking into further consideration her social standing, neither is the sum of P10,000, adjudicated to her by the said trial court by way of indemnity for patrimonial and moral damages, excessive. In the case of Gutierrez vs. Gutierrez (56 Phil., 177), the right leg of the plaintiff Narciso Gutierrez was fractured as a result of a collision between the autobus in which he was riding and the defendant's car, which fractured required medical attendance for a considerable period of time. On the day of the trial the fracture had not yet completely healed but it might cause him permanent lameness. The trial court sentenced the defendants to indemnify him in the sum of P10,000 which this court reduced to P5,000, in spite of the fact that the said plaintiff therein was neither young nor good-looking, nor had he suffered any facial deformity, nor did he have the social standing that the herein plaintiff-appellant Sonja Maria Lilius enjoys.1ªvvphi1.ne+

As to the indemnity of P5,000 in favor of the child Brita Marianne Lilius, daughter of Aleko E. Lilius and Sonja Maria Lilius, neither is the same excessive, taking into consideration the fact that the lacerations received by her have left deep scars that permanently disfigure her face and that the fractures of both her legs permanently render it difficult for her to walk freely, continuous extreme care being necessary in order to keep her balance in addition to the fact that all of this unfavorably and to a great extent affect her matrimonial future.

With respect to the plaintiffs' appeal, the first question to be decided is that raised by the plaintiff Aleko E. Lilius relative to the insufficiency of the sum of P5,000 which the trial court adjudicated to him by way of indemnity for damages consisting in the loss of his income as journalist and author as a result of his illness. This question has impliedly been decided in the negative when the defendant-appellant entity's petition for the reduction of said indemnity was denied, declaring it to be reasonable.

As to the amount of P10,000 claimed by the plaintiff Aleko E. Lilius as damages for the loss of his wife's services in his business as journalist and author, which services consisted in going over his writings, translating them into English, German and Swedish, and acting as his secretary, in addition to the fact that such services formed part of the work whereby he realized a net monthly income of P1,500, there is no sufficient evidence of the true value of said services nor to the effect that he needed them during her illness and had to employ a translator to act in her stead.

The plaintiff Aleko E. Lilius also seeks to recover the sum of P2,500 for the loss of what is called Anglo-Saxon common law "consortium" of his wife, that is, "her services, society and

conjugal companionship", as a result of personal injuries which she had received from the accident now under consideration.

In the case of Goitia vs. Campos Rueda (35 Phil., 252, 255, 256), this court, interpreting the provisions of the Civil Marriage Law of 1870, in force in these Islands with reference to the mutual rights and obligations of the spouses, contained in articles 44-48 thereof, said as follows:

The above quoted provisions of the Law of Civil Marriage and the Civil Code fix the duties and obligations of the spouses. The spouses must be faithful to, assist, and support each other. The husband must live with and protect his wife. The wife must obey and live with her husband and follow him when he changes his domicile or residence, except when he removes to a foreign country. . . .

Therefore, under the law and the doctrine of this court, one of the husband's rights is to count on his wife's assistance. This assistance comprises the management of the home and the performance of household duties, including the care and education of the children and attention to the husband upon whom primarily devolves the duty of supporting the family of which he is the head. When the wife's mission was circumscribed to the home, it was not difficult to assume, by virtue of the marriage alone, that she performed all the said tasks and her physical incapacity always redounded to the husband's prejudice inasmuch as it deprived him of her assistance. However, nowadays when women, in their desire to be more useful to society and to the nation, are demanding greater civil rights and are aspiring to become man's equal in all the activities of life, commercial and industrial, professional and political, many of them spending their time outside the home, engaged in their businesses, industry, profession and within a short time, in politics, and entrusting the care of their home to a housekeeper, and their children, if not to a nursemaid, to public or private institutions which take charge of young children while their mothers are at work, marriage has ceased to create the presumption that a woman complies with the duties to her husband and children, which the law imposes upon her, and he who seeks to collect indemnity for damages resulting from deprivation of her domestic services must prove such services. In the case under consideration, apart from the services of his wife Sonja Maria Lilius as translator and secretary, the value of which has not been proven, the plaintiff Aleko E. Lilius has not presented any evidence showing the existence of domestic services and their nature, rendered by her prior to the accident, in order that it may serve as a basis in estimating their value.

Furthermore, inasmuch as a wife's domestic assistance and conjugal companionship are purely personal and voluntary acts which neither of the spouses may be compelled to render (Arroyo vs. Vazquez de Arroyo, 42 Phil., 54), it is necessary for the party claiming indemnity for the loss of such services to prove that the person obliged to render them had done so before he was injured and that he would be willing to continue rendering them had he not been prevented from so doing.

In view of the foregoing considerations this court is of the opinion and so holds: (1) That a railroad company which has not installed a semaphore at a crossing an does not see to it that its flagman and switchman faithfully complies with his duty of remaining at the crossing when a train arrives, is guilty of negligence and is civilly liable for damages suffered by a motorist and his family who cross its line without negligence on their part; (2) that an indemnity of P10,000 for a permanent deformity on the face and on the left leg, suffered by a young and beautiful society woman, is not excessive; (3) that an indemnity of P5,000 for a permanent deformity on the face and legs of a four-year old girl belonging to a well-to-do family, is not excessive; and (4) that

in order that a husband may recover damages for deprivation of his wife's assistance during her illness from an accident, it is necessary for him to prove the existence of such assistance and his wife's willingness to continue rendering it had she not been prevented from so doing by her illness.

The plaintiffs-appellants are entitled to interest of 6 percent per annum on the amount of the indemnities adjudicated to them, from the date of the appealed judgment until this judgment becomes final, in accordance with the provisions of section 510 of Act No. 190.

Wherefore, not finding any error in the judgment appealed from, it is hereby affirmed in toto, with the sole modification that interest of 6 per cent per annum from the date of the appealed judgment until this judgment becomes final will be added to the indemnities granted, with the costs of both instances against the appellant. So ordered.

Malcolm, Hull, Imperial, and Goddard, JJ., concur.

G.R. No. L-7664             August 29, 1958

MR. AND MRS. AMADOR C. ONG, plaintiffs-appellants, vs.METROPOLITAN WATER DISTRICT, defendant-appellee.

Tomas Tria Tirona for appellants.Government Corporate Counsel Ambrosio Padilla and Juan C. Jimenez for appellee.

BAUTISTA ANGELO, J.:

Plaintiffs spouses seek to recover from defendant, a government-owned corporation, the sum of P50,000 as damages, P5,000 as funeral expenses, and P11,000 as attorneys' fees, for the death of their son Dominador Ong in one of the swimming pools operated by defendant.

Defendant admits the fact that plaintiffs' son was drowned in one of its swimming pools but avers that his death was caused by his own negligence or by unavoidable accident. Defendant also avers that it had exercised due diligence in the selection of, and supervision over, its employees and that it had observed the diligence required by law under the circumstances.

After trial, the lower court found that the action of plaintiffs is untenable and dismissed the complaint without pronouncement as to costs. Plaintiffs took the case on appeal directly to this Court because the amount involved exceeds the sum of P50,000.

Defendant owns and operates three recreational swimming pools at its Balara filters, Diliman, Quezon City, to which people are invited and for which a nominal fee of P0.50 for adults and P0.20 for children is charged. The main pool it between two small pools of oval shape known as the "Wading pool" and the "Beginners Pool." There are diving boards in the big pools and the depths of the water at different parts are indicated by appropriate marks on the wall. The care and supervision of the pools and the users thereof is entrusted to a recreational section composed of Simeon Chongco as chief, Armando Rule, a male nurse, and six lifeguards who had taken the life-saving course given by the Philippine Red Cross at the YMCA in Manila. For the safety of its patrons, defendant has provided the pools with a ring buoy, toy roof, towing line, saving kit and a resuscitator. There is also a sanitary inspector who is in charge of a clinic established for the benefit of the patrons. Defendant has also on display in a conspicuous place certain rules and regulations governing the use of the pools,

one of which prohibits the swimming in the pool alone or without any attendant. Although defendant does not maintain a full-time physician in the swimming pool compound, it has however a nurse and a sanitary inspector ready to administer injections or operate the oxygen resuscitator if the need should arise.

In the afternoon of July 5, 1952, at about 1:00 o'clock, Dominador Ong, a 14-year old high school student and boy scout, and his brothers Ruben and Eusebio, went to defendant's swimming pools. This was not the first time that the three brothers had gone to said natatorium for they had already been there four or five times before. They arrived at the natatorium at about 1:45 p.m. After paying the requisite admission fee, they immediately went to one of the small pools where the water was shallow. At about 4:35 p.m., Dominador Ong told his brothers that he was going to the locker room in an adjoining building to drink a bottle of coke. Upon hearing this, Ruben and Eusebio went to the bigger pool leaving Dominador in the small pool and so they did not see the latter when he left the pool to get a bottle of coke. In that afternoon, there were two lifeguards on duty in the pool compound, namely, Manuel Abaño and Mario Villanueva. The tour of duty of Abaño was from 8:00 to 12:00 in the morning and from 2:00 to 6:00 in the afternoon, and of Villanueva from 7:30 to 11:30 a.m. and from 12:30 to 4:30 p.m. Between 4:00 to 5:00 that afternoon, there were about twenty bathers inside the pool area and Manuel Abaño was going around the pools to observe the bathers in compliance with the instructions of his chief.

Between 4:40 to 4:45 p.m., some boys who were in the pool area informed a bather by the name of Andres Hagad, Jr., that somebody was swimming under water for quite a long time. Another boy informed lifeguard Manuel Abaño of the same happening and Abaño immediately jumped into the big swimming pool and retrieved the apparently lifeless body of Dominador Ong from the bottom. The body was placed at the edge of the pool and Abaño immediately applied manual artificial respiration. Soon after, male nurse Armando Rule came to render assistance, followed by sanitary inspector Iluminado Vicente who, after being called by phone from the clinic by one of the security guards, boarded a jeep carrying with him the resuscitator and a medicine kit, and upon arriving he injected the boy with camphorated oil. After the injection, Vicente left on a jeep in order to fetch Dr. Ayuyao from the University of the Philippines. Meanwhile, Abaño continued the artificial manual respiration, and when this failed to revive him, they applied the resuscitator until the two oxygen tanks were exhausted. Not long thereafter, Dr. Ayuyao arrived with another resuscitator, but the same became of no use because he found the boy already dead. The doctor ordered that the body be taken to the clinic.

In the evening of the same day, July 5, 1952, the incident was investigated by the Police Department of Quezon City and in the investigation boys Ruben Ong and Andres Hagad, Jr. gave written statements. On the following day, July 6, 1952, an autopsy was performed by Dr. Enrique V. de los Santos, Chief, Medico Legal Division, National Bureau of Investigation, who found in the body of the deceased the following: an abrasion on the right elbow lateral aspect; contusion on the right forehead; hematoma on the scalp, frontal region, right side; a congestion in the brain with petechial subcortical hemorrhage, frontal lobe; cyanosis on the face and on the nails; the lung was soggy with fine froth in the bronchioles; dark fluid blood in the heart; congestion in the visceral organs, and brownish fluid in the stomach. The death was due to asphyxia by submersion in water.

The issue posed in this appeal is whether the death of minor Dominador Ong can be attributed to the negligence of defendant and/or its employees so as to entitle plaintiffs to recover damages.

The present action is governed by Article 2176 in relation to Article 2080 of the new Civil Code. The first article provides that "whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay for the damages done." Such fault or negligence is called quasi-delict. Under the second article, this obligation is demandable not only for one's own acts or omissions but also for those of persons for whom one is responsible. In addition, we may quote the following authorities cited in the decision of the trial court:

"The rule is well settled that the owners of resorts to which people generally are expressly or by implication invited are legally bound to exercise ordinary care and prudence in the management and maintenance of such resorts, to the end of making them reasonably safe for visitors" (Larkin vs. Saltair Beach Co., 30 Utah 86, 83 Pac. 686).

"Although the proprietor of a natatorium is liable for injuries to a patron, resulting from lack of ordinary care in providing for his safety, without the fault of the patron, he is not, however, in any sense deemed to be the insurer of the safety of patrons. And the death of a patron within his premises does not cast upon him the burden of excusing himself from any presumption of negligence" (Bertalot vs. Kinnare. 72 Ill. App. 52, 22 A. L. R. 635; Flora vs. Bimini Water Co., 161 Cal. 495, 119 Pac. 661). Thus in Bertalot vs. Kinnare, supra, it was held that there could be no recovery for the death by drowning of a fifteen-year boy in defendant's natatorium, where it appeared merely that he was lastly seen alive in water at the shallow end of the pool, and some ten or fifteen minutes later was discovered unconscious, and perhaps lifeless, at the bottom of the pool, all efforts to resuscitate him being without avail.

Since the present action is one for damages founded on culpable negligence, the principle to be observed is that the person claiming damages has the burden of proving that the damage is caused by the fault or negligence of the person from whom the damage is claimed, or of one of his employees (Walter A. Smith & Co. vs. Cadwallader Gibson Lumber Co., 55 Phil., 517). The question then that arises is: Have appellants established by sufficient evidence the existence of fault or negligence on the part of appellee so as to render it liable for damages for the death of Dominador Ong?

There is no question that appellants had striven to prove that appellee failed to take the necessary precaution to protect the lives of its patrons by not placing at the swimming pools efficient and competent employees who may render help at a moment's notice, and they ascribed such negligence to appellee because the lifeguard it had on the occasion minor Ong was drowning was not available or was attending to something else with the result that his help came late. Thus, appellants tried to prove through the testimony of Andres Hagad, Jr. and Ruben Ong that when Eusebio Ong and Hagad, Jr. detected that there was a drowning person in the bottom of the big swimming pool and shouted to the lifeguard for help, lifeguard Manuel Abaño did not immediately respond to the alarm and it was only upon the third call that he threw away the magazine he was reading and allowed three or four minutes to elapse before retrieving the body from the water. This negligence of Abaño, they contend, is attributable to appellee.

But the claim of these two witnesses not only was vehemently denied by lifeguard Abaño, but is belied by the written statements given by them in the investigation conducted by the Police Department of Quezon City approximately three hours after the happening of the accident. Thus, these two boys admitted in the investigation that they narrated in their

statements everything they knew of the accident, but, as found by the trial, nowhere in said statements do they state that the lifeguard was chatting with the security guard at the gate of the swimming pool or was reading a comic magazine when the alarm was given for which reason he failed to immediately respond to the alarm. On the contrary, what Ruben Ong particularly emphasized therein was that after the lifeguard heard the shouts for help, the latter immediately dived into the pool to retrieve the person under water who turned out to be his brother. For this reason, the trial court made this conclusion: "The testimony of Ruben Ong and Andres Hagad, Jr. as to the alleged failure of the lifeguard Abaño to immediately respond to their call may therefore be disregarded because they are belied by their written statements. (Emphasis supplied.)

On the other hand, there is sufficient evidence to show that appellee has taken all necessary precautions to avoid danger to the lives of its patrons or prevent accident which may cause their death. Thus, it has been shown that the swimming pools of appellee are provided with a ring buoy, toy roof, towing line, oxygen resuscitator and a first aid medicine kit. The bottom of the pools is painted with black colors so as to insure clear visibility. There is on display in a conspicuous place within the area certain rules and regulations governing the use of the pools. Appellee employs six lifeguards who are all trained as they had taken a course for that purpose and were issued certificates of proficiency. These lifeguards work on schedule prepared by their chief and arranged in such a way as to have two guards at a time on duty to look after the safety of the bathers. There is a male nurse and a sanitary inspector with a clinic provided with oxygen resuscitator. And there are security guards who are available always in case of emergency.

The record also shows that when the body of minor Ong was retrieved from the bottom of the pool, the employees of appellee did everything possible to bring him back to life. Thus, after he was placed at the edge of the pool, lifeguard Abaño immediately gave him manual artificial respiration. Soon thereafter, nurse Armando Rule arrived, followed by sanitary inspector Iluminado Vicente who brought with him an oxygen resuscitator. When they found that the pulse of the boy was abnormal, the inspector immediately injected him with camphorated oil. When the manual artificial respiration proved ineffective they applied the oxygen resuscitator until its contents were exhausted. And while all these efforts were being made, they sent for Dr. Ayuyao from the University of the Philippines who however came late because upon examining the body he found him to be already dead. All of the foregoing shows that appellee has done what is humanly possible under the circumstances to restore life to minor Ong and for that reason it is unfair to hold it liable for his death.

Sensing that their former theory as regards the liability of appellee may not be of much help, appellants now switch to the theory that even if it be assumed that the deceased is partly to be blamed for the unfortunate incident, still appellee may be held liable under the doctrine of "last clear chance" for the reason that, having the last opportunity to save the victim, it failed to do so.

We do not see how this doctrine may apply considering that the record does not show how minor Ong came into the big swimming pool. The only thing the record discloses is that minor Ong informed his elder brothers that he was going to the locker room to drink a bottle of coke but that from that time on nobody knew what happened to him until his lifeless body was retrieved. The doctrine of last clear chance simply means that the negligence of a claimant does not preclude a recovery for the negligence of defendant where it appears that the latter, by exercising reasonable care and prudence, might have avoided injurious consequences to claimant notwithstanding his negligence. Or, "As the doctrine usually is stated, a person who has the last clear chance or opportunity

of avoiding an accident, notwithstanding the negligent acts of his opponent or the negligence of a third person which is imputed to his opponent, is considered in law solely responsible for the consequences of the accident." (38 Am. Jur. pp. 900-902)

It goes without saying that the plaintiff himself was not free from fault, for he was guilty of antecedent negligence in planting himself in the wrong side of the road. But as we have already stated, the defendant was also negligent; and in such case the problem always is to discover which agent is immediately and directly responsible. It will be noted that the negligent acts of the two parties were not contemporaneous, since the negligence of the defendant succeeded the negligence of the plaintiff by an appreciable interval. Under these circumstances, the law is that a person who has the last clear chance to avoid the impending harm and fails to do so is chargeable with the consequences, without reference to the prior negligence of the other party. (Picart vs. Smith, 37 Phil., 809)

Since it is not known how minor Ong came into the big swimming pool and it being apparent that he went there without any companion in violation of one of the regulations of appellee as regards the use of the pools, and it appearing that lifeguard Aba_¤_o responded to the call for help as soon as his attention was called to it and immediately after retrieving the body all efforts at the disposal of appellee had been put into play in order to bring him back to life, it is clear that there is no room for the application of the doctrine now invoked by appellants to impute liability to appellee..

The last clear chance doctrine can never apply where the party charged is required to act instantaneously, and if the injury cannot be avoided by the application of all means at hand after the peril is or should have been discovered; at least in cases in which any previous negligence of the party charged cannot be said to have contributed to the injury. O'Mally vs. Eagan, 77 ALR 582, 43 Wyo. 233, 350, 2, P2d 1063. (A.L.R. Digest, Vol. 8, pp. 955-956)

Before closing, we wish to quote the following observation of the trial court, which we find supported by the evidence: "There is (also) a strong suggestion coming from the expert evidence presented by both parties that Dominador Ong might have dived where the water was only 5.5 feet deep, and in so doing he might have hit or bumped his forehead against the bottom of the pool, as a consequence of which he was stunned, and which to his drowning. As a boy scout he must have received instructions in swimming. He knew, or have known that it was dangerous for him to dive in that part of the pool."

Wherefore, the decision appealed from being in accordance with law and the evidence, we hereby affirm the same, without pronouncement as to costs.

G.R. No. L-48930             February 23, 1944

ANTONIO VAZQUEZ, petitioner, vs.FRANCISCO DE BORJA, respondent.

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G.R. No. L-48931             February 23, 1944

FRANCISCO DE BORJA, petitioner, vs.ANTONIO VAZQUEZ, respondent.

OZAETA, J.:

This action was commenced in the Court of First Instance of Manila by Francisco de Borja against Antonio Vazquez and Fernando Busuego to recover from them jointly and severally the total sum of P4,702.70 upon three alleged causes of action, to wit: First, that in or about the month of January, 1932, the defendants jointly and severally obligated themselves to sell to the plaintiff 4,000 cavans of palay at P2.10 per cavan, to be delivered during the month of February, 1932, the said defendants having subsequently received from the plaintiff in virtue of said agreement the sum of P8,400; that the defendants delivered to the plaintiff during the months of February, March, and April, 1932, only 2,488 cavans of palay of the value of P5,224.80 and refused to deliver the balance of 1,512 cavans of the value of P3,175.20 notwithstanding repeated demands. Second, that because of defendants' refusal to deliver to the plaintiff the said 1,512 cavans of palay within the period above mentioned, the plaintiff suffered damages in the sum of P1,000. And, third, that on account of the agreement above mentioned the plaintiff delivered to the defendants 4,000 empty sacks, of which they returned to the plaintiff only 2,490 and refused to deliver to the plaintiff the balance of 1,510 sacks or to pay their value amounting to P377.50; and that on account of such refusal the plaintiff suffered damages in the sum of P150.

The defendant Antonio Vazquez answered the complaint, denying having entered into the contract mentioned in the first cause of action in his own individual and personal capacity, either solely or together with his codefendant Fernando Busuego, and alleging that the agreement for the purchase of 4,000 cavans of palay and the payment of the price of P8,400 were made by the plaintiff with and to the Natividad-Vasquez Sabani Development Co., Inc., a corporation organized and existing under the laws of the Philippines, of which the defendant Antonio Vazquez was the acting manager at the time the transaction took place. By way of counterclaim, the said defendant alleged that he suffered damages in the sum of P1,000 on account of the filing of this action against him by the plaintiff with full knowledge that the said defendant had nothing to do whatever with any and all of the transactions mentioned in the complaint in his own individual and personal capacity.

The trial court rendered judgment ordering the defendant Antonio Vazquez to pay to the plaintiff the sum of P3,175.20 plus the sum of P377.50, with legal interest on both sums, and absolving the defendant Fernando Busuego (treasurer of the corporation) from the complaint and the plaintiff from the defendant Antonio Vazquez' counterclaim. Upon appeal to the Court of Appeals, the latter modified that judgment by reducing it to the total sum of P3,314.78, with legal interest thereon and the costs. But by a subsequent resolution upon the defendant's motion for reconsideration, the Court of Appeals set aside its judgment and ordered that the case be remanded to the court of origin for further proceedings. The defendant Vazquez, not being agreeable to that result, filed the present petition for certiorari (G.R. No. 48930) to review and reverse the judgment of the Court of Appeals; and the plaintiff Francisco de Borja, excepting to the resolution of the Court of Appeals whereby its original judgment was set aside and the case was ordered remanded to the court of origin for further proceedings, filed a cross-petition for certiorari (G.R. No. 48931) to maintain the original judgment of the Court of Appeals.

The original decision of the Court of Appeals and its subsequent resolutions on reconsideration read as follows:

Es hecho no controvertido que el 25 de Febrero de 1932, el demandado-apelante vendio al demandante 4,000 cavanes de palay al precio de P2.10 el cavan, de los cuales, dicho demandante solamente recibio 2,583 cavanes; y que asimismo recibio para su envase 4,000 sacos vacios. Esta provbado que de dichos 4,000 sacos vacios solamente se entregaron, 2,583 quedando en poder del demandado el resto, y cuyo valor es el de P0.24 cada uno. Presentada la demanda contra los demandados Antonio Vazquez y Fernando Busuego para el pago de la cantidad de P4,702.70, con sus intereses legales desde el 1.o de marzo de 1932 hasta su completo pago y las costas, el Juzgado de Primera Instancia de Manila el asunto condenando a Antonio Vazquez a pagar al demandante la cantidad de P3,175.20, mas la cantidad de P377.50, con sus intereses legales, absolviendo al demandado Fernando Busuego de la demanda y al demandante de la reconvencion de los demandados, sin especial pronunciamiento en cuanto a las costas. De dicha decision apelo el demandado Antonio Vazquez, apuntado como principal error el de que el habia sido condenado personalmente, y no la corporacion por el representada.

Segun la preponderancia de las pruebas, la venta hecha por Antonio Vazquez a favor de Francisco de Borja de los 4,000 cavanes de palay fue en su capacidad de Presidente interino y Manager de la corporacion Natividad-Vazquez Sabani Development Co., Inc. Asi resulta del Exh. 1, que es la copia al carbon del recibo otorgado por el demandado Vazquez, y cuyo original lo habia perdido el demandante, segun el. Asi tambien consta en los libros de la corporacion arriba mencionada, puesto que en los mismos se ha asentado tanto la entrada de los P8,400, precio del palay, como su envio al gobierno en pago de los alquileres de la Hacienda Sabani. Asi mismo lo admitio Francisco de Borja al abogado Sr. Jacinto Tomacruz, posterior presidente de la corporacion sucesora en el arrendamiento de la Sabani Estate, cuando el solicito sus buenos oficios para el cobro del precio del palay no entregado. Asi igualmente lo declaro el que hizo entrega de parte del palay a Borja, Felipe Veneracion, cuyo testimonio no ha sido refutado. Y asi se deduce de la misma demanda, cuando se incluyo en ella a Fernando Busuego, tesorero de la Natividad-Vazquez Sabani Development Co., Inc.

Siendo esto asi, la principal responsable debe ser la Natividad-Vazquez Sabani Development Co., Inc., que quedo insolvente y dejo de existir. El Juez sentenciador declaro, sin embargo, al demandado Vazquez responsable del pago de la cantidad reclamada por su negligencia al vender los referidos 4,000 cavanes de palay sin averiguar antes si o no dicha cantidad existia en las bodegas de la corporacion.

Resulta del Exh. 8 que despues de la venta de los 4,000 cavanes de palay a Francisco de Borja, el mismo demandado vendio a Kwong Ah Phoy 1,500 cavanes al precio de P2.00 el cavan, y decimos 'despues' porque esta ultima venta aparece asentada despues de la primera. Segun esto, el apelante no solamente obro con negligencia, sino interviniendo culpa de su parte, por lo que de acuerdo con los arts. 1102, 1103 y 1902 del Codigo Civil, el debe ser responsable subsidiariamente del pago de la cantidad objecto de la demanda.

En meritos de todo lo expuesto, se confirma la decision apelada con la modificacion de que el

apelante debe pagar al apelado la suma de P2,295.70 como valor de los 1,417 cavanes de palay que dejo de entregar al demandante, mas la suma de P339.08 como importe de los 1,417 sacos vacios, que dejo de devolver, a razon de P0.24 el saco, total P3,314.78, con sus intereses legales desde la interposicion de la demanda y las costas de ambas instancias.

Vista la mocion de reconsideracion de nuestra decision de fecha 13 de Octubre de 1942, y alegandose en la misma que cuando el apelante vendio los 1,500 cavanes de palay a Ah Phoy, la corporacion todavia tenia bastante existencia de dicho grano, y no estando dicho extremo suficientemente discutido y probado, y pudiendo variar el resultado del asunto, dejamos sin efecto nuestra citada decision, y ordenamos la devolucion de la causa al Juzgado de origen para que reciba pruebas al efecto y dicte despues la decision correspondiente.

Upon consideration of the motion of the attorney for the plaintiff-appellee in case CA-G.R. No. 8676,Francisco de Borja vs. Antonio Vasquez et al., praying, for the reasons therein given, that the resolution of December 22, 1942, be reconsidered: Considering that said resolution remanding the case to the lower court is for the benefit of the plaintiff-appellee to afford him opportunity to refute the contention of the defendant-appellant Antonio Vazquez, motion denied.

The action is on a contract, and the only issue pleaded and tried is whether the plaintiff entered into the contract with the defendant Antonio Vazquez in his personal capacity or as manager of the Natividad-Vazquez Sabani Development Co., Inc. The Court of Appeals found that according to the preponderance of the evidence "the sale made by Antonio Vazquez in favor of Francisco de Borja of 4,000 cavans of palay was in his capacity as acting president and manager of the corporation Natividad-Vazquez Sabani Development Co., Inc." That finding of fact is final and, it resolving the only issue involved, should be determinative of the result.

The Court of Appeals doubly erred in ordering that the cause be remanded to the court of origin for further trial to determine whether the corporation had sufficient stock of palay at the time appellant sold, 1500 cavans of palay to Kwong Ah Phoy. First, if that point was material to the issue, it should have been proven during the trial; and the statement of the court that it had not been sufficiently discussed and proven was no justification for ordering a new trial, which, by the way, neither party had solicited but against which, on the contrary, both parties now vehemently protest. Second, the point is, in any event, beside the issue, and this we shall now discuss in connection with the original judgment of the Court of Appeals which the plaintiff cross-petitioner seeks to maintain.

The action being on a contract, and it appearing from the preponderance of the evidence that the party liable on the contract is the Natividad-Vazquez Sabani Development Co., Inc. which is not a party herein, the complaint should have been dismissed. Counsel for the plaintiff, in his brief as respondent, argues that altho by the preponderance of the evidence the trial court and the Court of Appeals found that Vazquez celebrated the contract in his capacity as acting president of the corporation and altho it was the latter, thru Vazquez, with which the plaintiff had contracted and which, thru Vazquez, had received the sum of P8,400 from Borja, and altho that was true from the point of view of a legal fiction, "ello no impede que tambien sea verdad lo alegado en la demanda de que la misma persona de Vasquez fue la que

contrato con Borja y que la misma persona de Vasquez fue quien recibio la suma de P8,400." But such argument is invalid and insufficient to show that the president of the corporation is personally liable on the contract duly and lawfully entered into by him in its behalf.

It is well known that a corporation is an artificial being invested by law with a personality of its own, separate and distinct from that of its stockholders and from that of its officers who manage and run its affairs. The mere fact that its personality is owing to a legal fiction and that it necessarily has to act thru its agents, does not make the latter personally liable on a contract duly entered into, or for an act lawfully performed, by them for an in its behalf. The legal fiction by which the personality of a corporation is created is a practical reality and necessity. Without it no corporate entities may exists and no corporate business may be transacted. Such legal fiction may be disregarded only when an attempt is made to use it as a cloak to hide an unlawful or fraudulent purpose. No such thing has been alleged or proven in this case. It has not been alleged nor even intimated that Vazquez personally benefited by the contract of sale in question and that he is merely invoking the legal fiction to avoid personal liability. Neither is it contended that he entered into said contract for the corporation in bad faith and with intent to defraud the plaintiff. We find no legal and factual basis upon which to hold him liable on the contract either principally or subsidiarily.

The trial court found him guilty of negligence in the performance of the contract and held him personally liable on that account. On the other hand, the Court of Appeals found that he "no solamente obro con negligencia, sino interveniendo culpa de su parte, por lo que de acuerdo con los arts. 1102, 1103 y 1902 del Codigo Civil, el debe ser responsable subsidiariamente del pago de la cantidad objeto de la demanda." We think both the trial court and the Court of Appeals erred in law in so holding. They have manifestly failed to distinguish a contractual from an extracontractual obligation, or an obligation arising from contract from an obligation arising from culpa aquiliana. The fault and negligence referred to in articles 1101-1104 of the Civil Code are those incidental to the fulfillment or nonfullfillment of a contractual obligation; while the fault or negligence referred to in article 1902 is the culpa aquiliana of the civil law, homologous but not identical to tort of the common law, which gives rise to an obligation independently of any contract. (Cf. Manila R.R. Co. vs. Cia. Trasatlantica, 38 Phil., 875, 887-890; Cangco vs.Manila R.R. Co., 38 Phil. 768.) The fact that the corporation, acting thru Vazquez as its manager, was guilty of negligence in the fulfillment of the contract, did not make Vazquez principally or even subsidiarily liable for such negligence. Since it was the corporation's contract, its nonfulfillment, whether due to negligence or fault or to any other cause, made the corporation and not its agent liable.

On the other hand if independently of the contract Vazquez by his fault or negligence cause damaged to the plaintiff, he would be liable to the latter under article 1902 of the Civil Code. But then the plaintiff's cause of action should be based on culpa aquiliana and not on the contract alleged in his complaint herein; and Vazquez' liability would be principal and not merely subsidiary, as the Court of Appeals has erroneously held. No such cause of action was alleged in the complaint or tried by express or implied consent of the parties by virtue of section 4 of Rule 17. Hence the trial court had no jurisdiction over the issue and could not adjudicate upon it (Reyes vs. Diaz, G.R. No. 48754.) Consequently it was error for the Court of Appeals to remand the case to the trial court to try and decide such issue.

It only remains for us to consider petitioner's second assignment of error referring to the lower courts' refusal to entertain his counterclaim for damages against the respondent Borja arising from the bringing of this action. The

lower courts having sustained plaintiff's action. The finding of the Court of Appeals that according to the preponderance of the evidence the defendant Vazquez celebrated the contract not in his personal capacity but as acting president and manager of the corporation, does not warrant his contention that the suit against him is malicious and tortious; and since we have to decide defendant's counterclaim upon the facts found by the Court of Appeals, we find no sufficient basis upon which to sustain said counterclaim. Indeed, we feel that a a matter of moral justice we ought to state here that the indignant attitude adopted by the defendant towards the plaintiff for having brought this action against him is in our estimation not wholly right. Altho from the legal point of view he was not personally liable for the fulfillment of the contract entered into by him on behalf of the corporation of which he was the acting president and manager, we think it was his moral duty towards the party with whom he contracted in said capacity to see to it that the corporation represented by him fulfilled the contract by delivering the palay it had sold, the price of which it had already received. Recreant to such duty as a moral person, he has no legitimate cause for indignation. We feel that under the circumstances he not only has no cause of action against the plaintiff for damages but is not even entitled to costs.

The judgment of the Court of Appeals is reversed, and the complaint is hereby dismissed, without any finding as to costs.

Yulo, C.J., Moran, Horrilleno and Bocobo, JJ., concur.