Worcester v. Ocampo

February 27, 1912

FACTS:

Dean Worcester filed an action to recover damages resulting from an alleged libelous

publication against Martin Ocampo, Teodoro M. Kalaw, Lope K. Santos, Fidel A. Reyes,

Faustino Aguilar, et al, as the owners, directors, writers, editors and administrators of

the daily newspaper “El Renacimiento” (Spanish version) and “Muling Pagsilang”

(tagalong version). Worcester alleged that the defendants have been maliciously

persecuting and attacking him in the newspapers for a long time and they published an

editorial entitled “Birds of Prey” with the malicious intent of injuring Worcester, both as

a private person and as a government official as the editorial obviously referred to him.

Worcester alleged that he was likened to “birds of prey” in the following manner: “Such

are the characteristics of the man who is at the same time an eagle who surprises and

devours, a vulture who gorges himself on the dead and putrid meats, an owl who

affects a petulant omniscience and a vampire who silently sucks the blood of the victim

until he leaves it bloodless.”

TC: In favor of Worcester; Defendants jointly and severally liable for the P60k total

damages.

ISSUE: WON the defendants’ individual properties can be made jointly and severally

liable for the damages under the

civil and commercial codes,

HELD: Yes. TC modified. Damages reduced, Santos absolved. The present action is a

tort.

Universal doctrine: each joint tortfeasor is not only individually liable for the tort

in which he participates, but is also jointly liable with his tortfeasors.If several persons

commit a tort, the plaintiff or person injured, has his election to sue all or some of

the parties jointly, or one of them separately, because the TORT IS IN ITS NATURE A

SEPARATE ACT OF EACH INDIVIDUAL.

It is not necessary that cooperation should be a direct, corporal act- e.g. assault and

battery committed by various persons, under the common law, they are all principals.

Under common law, he who aided or counseled, in any way, the commission of a crime,

was as much a principal as he who inflicted or committed the actual tort.

General Rule: Joint tortfeasors are all the persons who command, instigate, promote,

encourage, advise, countenance, cooperate in, aid or abet the commission of a tort, or

who approve of it after it is done, if done for their benefit. They are each liable as

principals, to the same extent and in the same manner as if they had performed the

wrongful act themselves. Joint tortfeasors are jointly and severally liable for the tort

which they commit. Joint tortfeasors are not liable pro rata. The damages can not be

apportioned among them, except among themselves. They cannot insist upon an

apportionment, for the purpose of each paying an aliquot part.

They are jointly and severally liable for the full amount. A payment in full of the

damage done by one tortfeasor satisfies any claim which might exist against the others.

The release of one of the joint tortfeasors by agreement generally operates to discharge

all. The court however may make findings as to which of the alleged joint tortfeasors

are liable and which are not, even if they are charged jointly and severally.

DEAN C. WORCESTER, plaintiff-appellee,

vs.

MARTIN OCAMPO, TEODORO M. KALAW, LOPE K. SANTOS, FIDEL A. REYES,

FAUSTINO AGUILAR, ET AL., defendants-appellants.

Felipe Agoncillo for appellants.

W. A. Kincaid and Thos. L. Hartigan for appellee.

JOHNSON, J.:

On the 23rd day of January, 1909, the plaintiff commenced an action against the

defendants in the Court of First Instance of the city of Manila, for the purpose of

recovering damages resulting from an alleged libelous publication. The complaint was

in the following language:

COMPLAINT.

I.

That the plaintiff as well as the defendants are residents of the city of Manila,

Philippine Islands.

II.

That for a long time before the 30th of October, 1908, the defendants, Martin

Ocampo, Teodoro M. Kalaw, Lope K. Santos, Fidel A. Reyes, Faustino Aguilar,

Leoncio G. Liquete , Manuel Palma, Arcadio Arellano, Angel Jose, Galo

Lichauco, Felipe Barretto, and Gregorio M. Cansipit, were the owners, directors,

writers (redactores), editors (editores) and administrators of a certain daily

newspaper known as "El Renacimiento" and "Muling Pagsilang," which

newspaper during all the time mentioned in this complaint was published and

circulated daily in the Spanish and Tagalog languages in the city of Manila,

having a large circulation throughout the Philippine Islands.

III.

That for a long time the defendants have been maliciously persecuting and

attacking the plaintiff in said newspaper, until at last on the 30th of October,

1908, with the malicious intention of injuring the plaintiff, who on said date was,

and still is a member of the Civil Commission of the Philippines and Secretary of

the Interior in the Government of the Philippines, they attacked the honesty and

reviled the fame of the plaintiff, not only as a private person but also as an

official of the Government of the Philippine Islands, and with the object of

exposing him to the odium, contempt, and ridicule of the public, printed, wrote

(redactaron), and published in said newspaper in its ordinary number of the 30th

of October, 1908, a malicious defamation and false libel which was injurious

(injurioso) to the plaintiff, said libel reading as follows:

"EDITORIAL.

"BIRDS OF PREY.

"On the surface of the globe some were born to eat and devour, others to

be eaten and devoured.

"Now and then the latter have bestirred themselves, endeavoring to rebel

against an order of things which makes them the prey and food of the

insatiable voracity of the former. At times they have been fortunate,

putting to flight the eaters and devourers, but in the majority of cases they

did not obtain but a change of name or plumage.

"The situation is the same in all the spheres of creation: the relation

between the ones and the others is that dictated by the appetite and the

power to satisfy it at the fellow-creatures' expense.

"Among men it is very easy to observe the development of this daily

phenomenon. And for some psychological reason the nations who believe

themselves powerful have taken the fiercest and most harmful creatures

as emblems; it is either the lion, or the eagle, or the serpent. Some have

done so by a secret impulse of affinity and others in the nature of

simulation, of infatuated vanity, making themselves appear that which

they are not nor ever can be.

"The eagle, symbolizing liberty and strength, is the bird that has found the

most adepts. And men, collectively and individually, have desired to copy

and imitate the most rapacious bird in order to triumph in the plundering

of their fellow-men.

"There are men who, besides being eagles, have the characteristics of the

vulture, the owl and the vampire.

"Ascending the mountains of Benguet to classify and measure the skulls of

the Igorots and study and civilize them and to espy in his flight, with the

eye of the bird of prey, where are the large deposits of gold, the prey

concealed amidst the lonely mountains, to appropriate them to himself

afterwards, thanks to legal facilities made and unmade at will, but always

for his own benefit.

"Authorizing, despite laws and ordinances, an illegal slaughtering of

diseased cattle in order to derive benefit from the infected and putrid

meat which he himself was obliged to condemn by virtue of his official

position.

"Presenting himself on all occasions with the wrinkled brow of the

scientist who consumes his life in the mysteries of the laboratory of

science, when his whole scientific labor is confined o dissecting insects

and importing fish eggs, as if the fish eggs of this country were less

nourishing and less savory, so as to make it worth the while replacing

them with species coming from other climes.

"Giving an admirable impulse to the discovery of wealthy lodes in

Mindoro, in Mindanao, and in other virgin regions of the Archipelago,

with the money of the people, and under the pretext of the public good,

when, as a strict matter of truth, the object is to possess all the data and the

key to the national wealth for his essentially personal benefit, as is shown

by the acquisition of immense properties registered under he names of

others.

"Promoting, through secret agents and partners, the sale to the city of

worthless land at fabulous prices which the city fathers dare not refuse,

from fear of displeasing the one who is behind the motion, and which they

do not refuse for their own good.

"Patronizing concessions for hotels on filled-in-land, with the prospects of

enormous profits, at the expense of the blood of the people.

"Such are the characteristics of the man who is at the same time an eagle

who surprises and devours, a vulture who gorges himself on the dead and

putrid meats, an owl who affects a petulent omniscience and a vampire

who silently sucks the blood of the victim until he leaves it bloodless.

"It is these birds of prey who triumph. Their flight and their aim are never

thwarted.

"Who will detain them?

"Some share in the booty and the plunder. Others are too weak to raise a

voice of protest. And others die in the disconsolating destruction of their

own energies and interests.

"And then there appears, terrifying, the immortal legend:

"MANE, TECEL, PHARES."

IV.

That the plaintiff was, on the date of said publication, and still is, well known to

the officials of the Government of the Philippine Islands, and to the inhabitants

of the Philippine Islands, and to public in general, personally as well as a

member of the Civil Commission of the Philippines and as Secretary of the

Interior, and the defamation and libel, and the words, terms and language used

in said defamation and libel were employed by the said defendants with the

intention of indicating the said plaintiff, and that should be understood, as in

effect they were understood, by the public officials of the Government and the

inhabitants of the Philippine Islands in general, as referring to the plaintiff, by

reason of the publicly known fact that said plaintiff in compliance with his duties

in his position as such member of the Civil Commission of the Philippines and as

such Secretary of the Interior of the Philippine Islands, ascended on a previous

occasion the mountains of the Province of Benguet to study the native tribe

known as Igorot, residing in said region; by reason of the publicly known fact

that in the said mountains of Benguet there exist large deposits of gold, and for

the reason that, as member of the Civil Commission of the Philippines, which is

the legislative body of the Philippine Islands, the plaintiff takes part in the

enactment and repealing of laws in said Islands; by reason furthermore of the

fact, publicly known, that the plaintiff, as such Secretary of the Interior of the

Philippine Islands, has had under his direction and control the enforcement of

the laws of the Philippine Islands and the ordinances of the city of Manila

relating to the slaughtering of cattle; by reason furthermore of the fact, publicly

known that said plaintiff, as such Secretary of the Interior of the Philippine

Islands, had under his direction and control the Bureau of Science of the

Government of the Philippine Islands, and he is generally known as a man

devoted to the study of science; by reason furthermore of the publicly known fact

that the said plaintiff, as such Secretary of the Interior of the Philippine Islands,

at a previous time, caused the importation into the Philippine Islands of fish eggs

for the purpose of supplying the mountain streams of the Philippine Islands with

fish-hatcheries; by reason furthermore of the publicly known fact that said

plaintiff, as such Secretary of the Interior of the Philippine Islands, has journeyed

to and explored the Islands of Mindoro, Mindanao, and other regions of the

Philippine Archipelago; by reason furthermore of the publicly known fact that

said plaintiff, as such Secretary of the Interior of the Philippine Islands, at one

time investigated and prepared a report for the Civil Commission of the

Philippines in regard to a certain proposition for the purchase of a parcel of land

for the city of Manila; by reason furthermore of the publicly known fact that said

plaintiff, as member of said Civil Commission of the Philippines together with

the other members of said legislative body, once opened negotiations with a

certain firm engaged in the hotel business in regard to the location of a

prospective hotel on one of the filled-in lands of the city of Manila.

That said defendants charged said plaintiff with the prostitution of his office as

member of the Civil Commission of the Philippines and as Secretary of the

Interior of said Islands, for personal ends; with wasting public funds for the

purpose of promoting his personal welfare; with the violation of the laws of the

Philippine Islands and the ordinances of the city of Manila; with taking part in

illegal combinations for the purpose of robbing the people; with the object of

gain for himself and for others; and lastly with being "a bird of prey;" and that

said defamation should be understood, as in effect it was understood, by the

public officials of the Government and the people of the Philippine Islands in

general, as charging the said plaintiff with the conduct, actions and things above

specified; all of which allegations relating to the character and conduct of the

said plaintiff, as above stated, were and are false and without any foundation

whatsoever.

That said defamation and libel were published by the defendants under a

heading in large and showy type, and every effort made by said defendants to

see that said defamation and libel should attract the attention of the public and

be read by all the subscribers to said newspaper and the readers of the same.

V.

Besides assailing the integrity and reviling the reputation of the plaintiff, said

defendants, in publishing the said libel, did so with the malicious intention of

inciting the Filipino people to believe that the plaintiff was a vile despot and a

corrupt person, unworthy of the position which he held, and for this reason to

oppose his administration of the office in his charge as Secretary of the Interior,

and in this way they endeavored to create enormous difficulties for him in the

performance of his official duties, and to make him so unpopular that he would

have to resign his office as member of the Civil Commission of the Philippines

and Secretary of the Interior.

In fact said defendants, by means of said libel and other false statements in said

mentioned newspaper, have been deliberately trying to destroy the confidence of

the public in the plaintiff and to incite the people to place obstacles in his way in

the performance of his official duties, in consequence of which the plaintiff has

met with a great many difficulties which have increased to a great extent his

labors as a public official in every one of the Departments.

VI.

And for all these reasons the plaintiff alleges: That he has been damaged and is

entitled to an indemnity for the additional work to which he has been put, by the

said defendants, in the compliance of his duties, both in the past and the future,

as well as for the injuries to his reputation and feelings, in the sum of fifty

thousand pesos (P50,000) Philippine currency, and besides this said amount he is

entitled to collect from the defendants the additional sum of fifty thousand pesos

(P50,000) Philippine currency, in the way of punitive damages, as a warning to

the defendants.

Wherefore the plaintiff files this complaint, praying the court:

(1) That the defendants be summoned according to law.

(2) That judgment be rendered ordering the defendants to pay the damages as

above stated, and the costs of the action.

On the 23d of February, 1909, the defendants presented the following demurrer to the

said complaint:

DEMURRER.

Now come the defendants, through their undersigned attorney, and demur to

the complaint filed herein, upon the following grounds:

First, That the complaint is vague and unintelligible.

Second. That the facts alleged in the complaint do not constitute a cause or right

of action.

Third. That there is another action pending between the plaintiff and several of

the defendants for the same cause; and

Fourth. That some of the defendants have been erroneously included therein.

Therefore, they respectfully ask the court to dismiss the complaint, with costs

against the plaintiff.

On the 27th of February, 1909, the Honorable Charles S. Lobingier, judge, overruled

said demurrer in the following decision, to which the defendants duly excepted:

ORDER.

The defendant demur upon several grounds:

(1) The first ground is that the complaint is vague and unintelligible and this is

directed principally to paragraph 2, in which it is alleged that the defendants

were "dueños, directores, redactores", etc., but it is not alleged that they were such

simultaneously. If this were the sole averment of the defendants' connection with

the alleged libel, the objection might be well taken, but paragraph 3 of the

complaint alleges that the defendants "imprimieron, redactaron y publicaron", etc.,

the article complained of. Under section 2 of Act 277 "every person" who

"publishes or procures to be published any belief is made responsible. (Cf.

U.S. vs. Ortiz, 8 Phil. Rep., 752.) We think, therefore, that the connection of the

defendants with the publication complained of is sufficiently charged.

(2) It is also claimed that the facts alleged are not sufficient to state a cause of

action and it is urged in support of this that the article complained of and which

is copied in the complaint, fails to mention the plaintiff or to show on its face that

it refers to him. It is, however, specifically alleged in paragraph 4 that the article

was intended to refer to the plaintiff and was so understood by the public, and

this allegation is admitted by the demurrer. Under the rule announced in Causin

vs. Jakosalem (5 Phil. Rep., 155), where the words complained of do refer to the

plaintiff "an action for libel may be maintained even though the defamatory

publication does not refer to the plaintiff by name."

(3) It is further argued that there is another action pending between the parties

for the same cause. This, it is true, is made a ground for demurrer by the Code of

Civil Procedure, sec. 91 (3), but like all grounds therein mentioned, it must

"appear upon the face" of the pleading objected to, and where it does not so

appear "the objection can only be taken by answer." (Code C. P., sec. 92.) There is

no averment in the complaint which indicates that there is no another action

pending.

The fourth ground of the demurrer is not one recognized by law (Code C. P., sec.

91) nor do we find anything in Sanidad vs. Cabotaje (5 Phil. Rep., 204) which

would necessitate any change in the views already expressed.

The demurrer is, therefore, overruled and defendants are given the usual five

days to answer.

On the 15th day of November, 1909, the defendants presented their amended answer,

which was as follows:

ANSWER.

The defendants in the above-entitled cause, through their undersigned attorney,

by their answer to the complaint, state:

That the defendants deny generally the allegation of the complaint.

As a special defense, the defendants allege:

First. That the plaintiff has no legal capacity to institute this action, as it clearly

appears from the allegations of the complaint and which the defendants hereby

deny.

Second. That the facts are set out as constituting cause of action in the complaint,

are insufficient to constitute such cause of action in favor of the plaintiff and

against the defendants.

Third. That the said complaint is manifestly improper, for the reason that there is

now pending in the Court of First Instance of this city a criminal cause, No. 4295,

for the crime of libel against the defendants herein, Martin Ocampo, Teodoro M.

Kalaw, and Fidel A. Reyes, both actions, criminal and civil, being based upon the

same facts which the plaintiffs herein, who is also a party to the said criminal

action, now alleges as the basis of his action.

Fourth. That the civil action in the above-entitled cause has been extinguished for

the reason that plaintiff did not expressly reserve the right to enforce the same in

the aforesaid cause 4295, for the crime of libel, after the said criminal cause had

been finally disposed of.

Fifth. That the defendants, Lope K. Santos, Faustino Aguilar, Leoncio G. Liquete,

Manuel Palma, Arcadio Arellano, Angel Jose, Galo Lichauco, Felipe Barretto, and

Gregorio M. Cansipit, were erroneously included in the complaint for the simple

reason that the first two were acquitted in said criminal cause No. 4295, for libel,

the third was used as a witness for the prosecution in the said criminal cause,

and the others have no interest, either directly or indirectly, in the newspaper "El

Renacimiento" in which it is alleged by the plaintiff the editorial, which is the

basis of the complaint, and which it is claimed to be libelous, was published.

Wherefore the defendants pray that they be acquitted of the complaint, with the

costs against the plaintiff.

After hearing the evidence adduced during the trial of the cause, the arguments if the

respective attorneys, the Honorable James C. Jenkins, judge, on the 14th of January,

1910, rendered the following decision:

DECISION.

This is a civil action sounding in damages to the amount of P100,000 for an

alleged libel of the plaintiff by the defendants.

The plaintiff is the Honorable Dean C. Worcester, a member of the Civil

Commission of the Philippine Islands, and Secretary of the Interior of Insular

Government. The defendants are twelve persons designated by name in the

complaint and alleged therein to be the owners, directors, writers (redactores),

editors (editores), and administrators of a certain daily newspaper known as "El

Renacimiento" and "Muling Pagsilang," which defendants, as well as the

plaintiff, are residents of the city of Manila, Philippine Islands.

It is further alleged in the complaint that for a long time prior to the 30th of

October, 1908, the defendants were the owners, directors, writers, editors, and

administrators of said daily newspaper, and that said newspaper, during all the

time mentioned in the complaint, was published and circulated daily in the

Spanish and Tagalog languages in the city of Manila, having a large circulation

throughout the Philippine Islands.

It is also alleged that for a long time the defendants had been maliciously

persecuting and attacking the plaintiff in said newspaper, until at last, on said

date, with the malicious intention of injuring the plaintiff who then was still is a

member of the Civil Commission of the Philippines and Secretary of the Interior

in the Government of the Philippines, they attacked the integrity and reviled the

reputation of the plaintiff, not only as a private citizen, but also as an official of

the Government of the Philippine Islands; and with the object of exposing him to

the odium, contempt, and ridicule of the public, they wrote, printed, and

published in said newspaper in its ordinary number of the said 30th of October,

1908, a malicious defamation and false libel, which was injurious to the plaintiff,

said libel, as translated from the Spanish, reading as follows:

"EDITORIAL.

"BIRDS OF PREY.

"On the surface of the globe some were born to eat and devour, others to

be eaten and devoured.

"Now and then the latter have bestirred themselves, endeavoring to rebel

against an order of things which makes them the prey and food of the

insatiable voracity of the former. At times they have been fortunate,

putting to flight the eaters and devourers, but in a majority of cases they

do not obtain anything but a change of name or plumage.

"The situation is the same in all spheres of creation; the relation between

the ones and the others is that dictated by the appetite and the power to

satisfy it at the fellow-creature's expense.

"Among men it is easy to observe the development of this daily

phenomenon. And for some psychological reason the nations who believe

themselves powerful have taken the fiercest and most harmful creatures

as emblems; it is either the lion, or the eagle, or the serpent. Some have

done so by a secret impulse of affinity and others in the nature of

simulation, of infatuated vanity, making themselves appear that which

they are not nor ever will be.

"The eagle, symbolizing liberty and strength, is the bird that has found the

most adepts. And men, collectively and individually, have desired to copy

and imitate the most rapacious bird in order to triumph in the plundering

if their fellow-men.

"There are men who, besides being eagles, have the characteristics of the

vulture, the owl and the vampire.

"Ascending the mountains of Benguet to classify and measure the skulls of

the Igorots and study and civilize them, and to espy in his flight with the

eye of the bird of prey, where are the large deposits of gold, the prey

concealed amongst the lonely mountains, to appropriate them to himself

afterwards, thanks to legal facilities made and unmade at will, but always

for his own benefit.

"Authorizing, despite laws and ordinances an illegal slaughtering of

diseased cattle in order to derive benefit from the infected and putrid

meat which he himself was obliged to condemn by virtue of his official

position.

"Presenting himself on all occasions with the wrinkled brow of the

scientist who consumes his life in the mysteries of the laboratory of

science, when his whole scientific labor is confined to dissecting insects

and importing fish eggs, as if the fish eggs of this country were less

nourishing and savory, so as to make it worth the while replacing them

with species coming from other climes.

"Giving an admirable impulse to the discovery of wealthy lodes in

Mindanao, in Mindoro, and in other virgin regions of the archipelago,

with the money of the people, and under the pretext of the public good,

when, as a strict matter of truth, the object is to possess all the data and the

key to the national wealth for his essentially personal benefit, as is shown

by the acquisition of immense properties registered under the names of

others.

"Promoting through secret agents and partners, the sale of the city

worthless land at fabulous prices which the city fathers dare not refuse

from fear of displeasing the one who is behind the motion, and which they

do not refuse to their own good.

"Patronizing concessions for hotels on filled-in lands, with the prospects of

enormous profits, at the expense of the blood of the people.

"Such are the characteristics of the man who is at the same time an eagle

who surprises and devours, a vulture who gorges himself on the dead and

putrid meats, an owl who affects a petulant omniscience and a vampire

who silently sucks the blood of the victim until he leaves it bloodless.

"It is these birds of prey who triumph. Their flight and aim are never

thwarted.

"Who will detain them?

"Some share in the body and plunder, Others are too weak to raise a voice

to protest. And others die in the disconsolating destruction of their own

energies and interests.

"And then there appears, terrifying, the immortal legend:

"MANE, TECEL, PHARES."

It is alleged, among other things, in paragraph four of the complaint, that the

plaintiff was on the date of said publication, and still is, well known to the

officials of the Government of the Philippine Islands, and to the inhabitants of

the Philippine Islands, and to the public generally, personally as well as a

member of the Civil Commission of the Philippines and as a Secretary of the

Interior; and the defamation and libel, and the words, terms, and language used

in said defamation and libel were employed by the said defendants with the

intention of indicating the said plaintiff, and that they should be understood, as

in fact they were understood, by the public officials of the Government and the

inhabitants of the Philippine Islands in general, as referring to the plaintiff. (Here

follow the reasons for saying the editorial referred to plaintiff and why the public

understood it as referring to him.)

The said defendants charged plaintiff with the prostitution of his office as a

member of the Civil Commission of the Philippines and as Secretary of the

Interior of said Islands, for personal ends; with wasting public funds for the

purpose of promoting his personal welfare; and with the violation of the laws of

the Philippine Islands and the ordinances of the city of Manila; with taking part

in illegal combination of the purpose of robbing the people, with the object of

gain for himself and for others; and lastly, with being a bird of prey, and that

said defamation should be understood, as in effect it was understood by the

public officials of the Government and the people of the Philippine Islands in

general, as charging the said plaintiff with the conduct, actions and things above

specified; all of which allegations relating to the character and conduct of the

said plaintiff, as above stated, were and are false and without any foundation

whatever. That said defamation and libel were published by the defendants

under a heading in large and showy type, and every effort was made by said

defendant to see that said defamation and libel should attract the attention of the

public and be read by all the subscribers to said newspaper and the readers of

the same.

In paragraph five of the complaint it is further alleged that, besides assailing the

integrity and reviling the reputation of the plaintiff, said defendants, in

publishing said libel, did so with the malicious intention of inciting the Filipino

to believe that the plaintiff was a vile despot and a corrupt person, unworthy of

the position which he held, and for this reason to oppose of his administration of

the office in his charge as Secretary of the Interior, and in this way they

endeavored to create enormous difficulties for him in the performance of his

official duties, and to make him so unpopular that he would have to resign his

office as a member of the Civil Commission of the Philippines and Secretary of

the Interior. In fact, said defendants, by means of said libel and other false

statements in said mentioned newspaper, have been deliberately trying to

destroy the confidence of the public in the plaintiff, and to in incite the people to

place obstacles in his way in the performance of his official duties, in

consequence of which said plaintiff has met with a great many difficulties which

have increased to a great extent his labors as a public official in every one of the

Departments.

And the allegations end with paragraph six, in which the plaintiff states that for

all these reasons has been damaged and is entitled to an indemnity for the

additional work to which he has been put by said defendants in compliance with

his duties, both in the past and in the future, as well as for the injuries to his

reputation and feelings, in the sum, of P50,000, and that besides this said amount

he is entitled to collect from the defendants the additional sum of fifty thousand

pesos in the way of punitive damages, as a warning to the defendants.

The complaint concludes with a prayer, among other things, that judgment be

rendered ordering the defendants to pay the damages as above stated and the

costs of the action; and is dated and signed, Manila, P.I., January 23, 1909,

Hartigan and Rohde, Kincaid and Hurd, attorneys for plaintiff.

A demurrer to this complaint was filed by the defendants, through their

attorney, Sr. Felipe Agoncillo, which demurrer was heretofore heard and

overruled by the Court, and the defendants required to answer. Accordingly, the

defendants within the prescribed time, filed their answer; and on November 16,

1909, through their attorney, filed and amended answer, which is as follows

(after stating the case):

The defendants in the above-entitled action, through their undersigned

attorney, answering the complaint, state: That they make a general denial

of the allegations in the complaint, and as a special defense allege:

"(1) That the plaintiff lacks the necessary personality to institute the complaint in

question, as evidently appears from the allegations in the same, and which the

defendants deny;

"(2) That the facts set forth as a cause of action in the complaint are insufficient to

constitute a cause of action in favor of the plaintiff and against the defendants;

"(3) That the said complaint is in every sense contrary to law, criminal case No.

4295, for libel, against the defendants Martin Ocampo, Teodoro M. Kalaw, and

Fidel A. Reyes, in the Court of First Instance of this city, being still pending,

inasmuch as both causes, criminal and civil, are based upon the same facts which

the plaintiff, who is also interested in said criminal cause, considers a cause of

action;

"(4) That the civil action in the above-entitled cause has been destroyed as a

consequence of the fact that the plaintiff did not expressly reserve his right to the

same in the said mentioned cause No. 4295 for libel, in order to exercise it after

the termination of said criminal cause:

"(5) That the defendants Lope K. Santos, Faustino Aguilar, Leoncio G. Liquete,

Manuel Palma, Arcadio Arellano, Angel Jose, Galo Lichauco, Felipe Barretto, and

Gregorio M. Cansipit have been erroneously included in the complaint, for the

simple reason that the first two were acquitted in said cause No. 4295 for libel,

the third was used as a witness by the prosecution in the same cause, and the

latter ones have no interest, directly or indirectly, in the newspaper "El

Renacimiento," in which the plaintiff presumes, was published the editorial

which forms the basis of the complaint, and which is said to be libelous; and

concluding with a prayer to the court to dismiss the case, with cost against the

plaintiff."

The second paragraph of this "special defense" is nothing other than a general

demurrer to the complaint, which has been overruled, as already stated.

The first paragraph is not clearly stated, but the court construes it as meaning a

simple denial that the plaintiff is the person referred to in the alleged libelous

article "Birds of Prey," which issue is sufficiently raised by the general denial of

the allegations in the complaint.

The third paragraph is not a valid defense in law, for the simple reason that

section 11 of Act 277 of the Philippine Commission, under which this suit is

brought, especially provides for a separate civil action for damages, as well as for

a criminal prosecution. (See Mr. Justice Johnson's recent decision.) This third

paragraph is therefore without merit; and the same may be said of the fourth

paragraph thereof. As to paragraph five, it contains no material averment which

could not have been set up and insisted upon under the general issue.

One part if this so-called special defense is therefore a demurrer already and

adjudicated, another part is covered by the general issue, and the residue is

without merit as a legal defense, and might have been stricken out. The defense

is therefore tantamount to the general issue only, there being no special plea that

these charges are true, nor any plea of justification.

The trial of this case on its merits began November 16, and ended December 10,

1909, and the proceedings and evidence introduced are to be found in the

exhibits and stenographic notes taken by the court's official reporter. At the trial

Judge Kincaid said Major Hartigan appeared for the plaintiff and Señores

Agoncillo, Cruz Herrera, and Ferrer for the defendants.

After hearing the testimony and arguments of counsel and a due consideration of

the case, the court finds the following facts established by the admissions and a

decided preponderance of the evidence:

That the defendants Martin Ocampo, Manuel Palma, Arcadio Arellano, Angel

Jose, Galo Lichauco, Felipe Barretto, and Gregorio M. Cansipit, seven in number,

are the proprietors and owners of the said daily newspaper known as "El

Renacimiento" and "Muling Pagsilang," and that "El Renacimiento" and "Muling

Pagsilang," are one and the same newspaper, owned, managed, printed and

published by the same persons; that Teodoro M. Kalaw and Lope K. Santos were

the editors in chief of directors of this paper on the 30th of October, 1908, and

that said nine defendants named were the owners, editors, proprietors, managers

and publishers of said newspaper on said 30th of October, 1908, for a long time

prior thereto, and during all the time mentioned in the complaint.

As to the defendants, Reyes, Aguilar, and Liquete, they appear from the evidence

to have been editors of said paper, but in subordinate position to the chief editors

or directors, Kalaw and Santos, and to have acted under the direction of their

latter two defendants.

The court further finds that every essential or material allegation of the

complaint is true substantially as therein stated, with the exception noted to Fidel

A. Reyes, Faustino Aguilar, and Leoncio G. Liquete, and as may be hereinafter

indicated. The case is therefore dismissed as to these three defendants.

The only serious contention of the defense is (1) that the editorial "Birds of Prey"

does not refer to a determinate person; and (2) that, conceding that it does refer

to the plaintiff, none of the defendants, except Teodoro M. Kalaw, is responsible

for the writing, printing, or publication of the alleged libelous article of the

damages to the plaintiff resulting therefrom.

In the opinion of the court this article so indubitably refers to the plaintiff, and

was so easily and well understood by the readers of said paper as indicating the

plaintiff, that it would be an act of superrogation to elaborately discuss the

evidence adduced in support of or against the proposition. It is as clear to the

court from the evidence adduced as the noonday sun, that the plaintiff is the

identical and only person meant and referred to in said article "Birds and Prey;"

and it requires no argument to prove that it does mean and refer to him and was

so intended by the writer, and therefore by said nine defendants, and could not

have been otherwise understood by any intelligent reader or subscriber of said

paper, in view of the reasons assigned in the complaint, which reasons are clearly

disclosed and fully established by the evidence. And it may be added that much

valuable time was needlessly consumed by the defense at trial in an effort to

establish the contrary.

It seems to the court a reflection upon the intelligence of the subscribers and

readers of "El Renacimiento" to contend that this editorial was not well

understood by them as referring to the plaintiff, and as fully as if his name had

been mentioned in every paragraph thereof. And assuredly the omission of his

name from the editorial has made the libel less hurtful and disastrous in its

results to the reputation and feelings of the plaintiff.

Much time was consumed also in adducing evidence to show that none of the

twelve defendants were the owners of "El Renacimiento" and "Muling

Pagsilang," but that six of them had originally contributed their money as a

partriotic donation to the Filipino people, and that Martin Ocampo simply held

the money and property of the paper as trustees for this people, and that the

paper was being devoted exclusively to philanthropic and patriotic ends, and

that Galo and Lichauco had agreed to contribute to the same ends, but had not

done so.

This proposition in the light of evidence is so preposterous as to entitle it to little,

if any, serious consideration. To ask the court to believe it is tantamount to

asking the court to stultify reason and common sense. That those seven

defendants named contributed their respective sums of money, as shown by the

evidence, to the foundation of said newspaper in 1901 for their own personal

benefit and profit is fully and unmistakably established. It is equally well

established that Martin Ocampo is and was, not only a part owner, but that he

has been and is still the administrator or business manager of said newspaper,

and that the other six persons named are shareholders, part owners and

proprietors thereof, and were such on said 30th of October, 1908.

Arcadio Arellano testified positively that Galo Lichauco was one of the seven

founders, and that Lichauco contributed P1,000. Martin Ocampo testified that

Galo Lichauco promised to contribute an amount which he (the witness) did not

remember but that Lichauco did not keep his promise. (See pp. 107, 108, and 231

of the evidence.)

The other evidence and circumstances strongly corroborate Arcadio Arellano,

and the court is constrained to believe that Arellano told the truth and Ocampo

did not. See Exhibit B-J, a copy of "El Renacimiento" containing the article

"Infamy Among Comrades," page 87 of the evidence, in which there was

published that these seven persons named are the shareholders of the paper.

Furthermore, Galo Lichauco failed to appear and testify, so as to enlighten the

court as to which witness, Arellano or Ocampo, told the truth, or whether chief

editor Kalaw had his authority to publish in said paper, as he did in November

22, 1907, that he, Galo Lichauco, was one of the shareholders. The presumptions

are therefore against Galo Lichauco. See S.S. Co. vs. Brancroft-Whitney Co. (36 C.

C. A., 136 and 153).

It also appears from the evidence that Teodoro M. Kalaw was the chief editor or

director of the Spanish section of said paper, and that Lope K. Santos was the

chief editor or director of the Tagalog section on said 30th of October, 1908, and

that the Spanish and Tagalog sections are, and then were, one and the same

newspaper, but printed and published in different languages.

It is alleged that said newspaper has a large circulation throughout the

Philippine Islands, and was published and circulated daily in the Spanish and

Tagalog languages in the city of Manila. Not only are these allegations true, but it

is also true that said newspaper has a daily circulation and subscribers in other

parts of the world, notably in the United States and Spain; and it has subscribers

numbering in toto not less than 5,200, and a daily issue of 6,000 copies.

It is also true as alleged, and the court so finds that since the year 1906 to said

30th of October, 1908, these nine defendants had been maliciously persecuting

and attacking the plaintiff in their said newspapers, until at last, on said 30th of

October, 1908 with the malicious intention of injuring the plaintiff, who on said

date was and still is a member of the Civil Commission and Secretary of the

Interior in the Government of the Philippine Islands; and with the object of

exposing him to the odium, contempt, and ridicule of the public, they wrote,

printed, and published in their said newspaper, in its ordinary number of said

30th of October, 1908, the malicious defamation and false libel of and concerning

the plaintiff, entitled and herein alluded to as the editorial "Birds of Prey," which

libel was and is highly injurious to the plaintiff and from which the plaintiff has

sustained serious damage.

This editorial, when properly interpreted and read between the lines, means,

besides other things, and was intended by the writer to mean and be understood

by the readers thereof as meaning substantially the following:

That the plaintiff, Dean C. Worcester, was born on the surface of the globe to eat

and devour, like a bird of prey, and that others, born to be eaten and devoured,

are the prey and the food of the insatiable voracity of the plaintiff; that the

plaintiff had a desire to copy and imitate the most rapacious bird, the eagle, in

order to triumph in plundering his fellowman; that the plaintiff besides being an

eagle, has the characteristics of thevulture, the owl, and the vampire.

That the plaintiff ascended the mountains of Benguet to classify and measure the

skulls of the Igorots, and study and civilize them and to espy in his flight with

the eye of the bird of prey the large deposits of gold-the prey concealed amidst

the mountains-and to appropriate them to himself afterwards, and that to this

end the plaintiff had the legal facilities, made and unmade at his own will, and

that this is always done for his own benefit.

That the plaintiff authorized, inspite of laws and ordinances, the illegal

slaughtering is diseased cattle in order to derive benefit from the infected and

putrid meant which he himself was obliged to condemn by virtue of his official

position; that while the plaintiff presents himself on all occasions with the

wrinkled brow of the scientist who consumes his life in the mysteries of the

laboratory of science, his whole scientific labor is confined to dissecting insects

and importing fish eggs.

That although the plaintiff gave an admirable impulse to the discovery of

wealthy lodes in Mindanao and Mindoro, and in other virgin regions of the

Archipelago, with the money of the people, under the pretext of the public good,

as a strict matter of truth his object was to possess all the data and the key to the

national wealth for his essentially personal benefit, and that this is shown by his

acquisition of immense properties registered under the names of others.

That the plaintiff promoted, through secret agents and partners, the sale to the

city of Manila of worthless land at fabulous prices, which the city fathers dared

not refuse from fear of displeasing the plaintiff, who was behind the project, and

which they did not refuse for their own good; that the plaintiff favored

concessions for hotels in Manila on filled-in land; with the prospect of enormous

profits, at the expense of the blood of the people.

That such are the characteristics of the plaintiff, who is at the same time an eagle

that surprises and devours, a vulture that gorges his self on deed and rotten

meats, an owl that affects a petulant omniscience, and a vampire that sucks the

blood of the victim until he leaves it bloodless. And this libelous article

concludes with the asseveration in substance that the plaintiff has been "weighed

in the balance and found wanting" — "Mane, Tecel, Phares."

That this editorial is malicious and injurious goes without saying. Almost every

line thereof teems with malevolence, ill will, and wanton and reckless disregard

of the rights and feelings of the plaintiff; and from the very nature and the

number of the charges therein contained the editorial is necessarily very

damaging to the plaintiff.

That this editorial, published as it was by the nine defendants, tends to impeach

the honesty and reputation of the plaintiff and publishes his alleged defects, and

thereby exposes him to public hatred, contempt, and ridicule is clearly seen by a

bare reading of the editorial.

It suffices to say that not a line is to be found in all the evidence in support of

these malicious, defamatory and injurious charges against the plaintiff; and there

was at the trial no pretense whatever by the defendants that any of them are true,

nor the slightest evidence introduced to show the truth of a solitary charge; nor is

there any plea of justification or that the charges are true, much less evidence to

sustain a plea.

In the opinion of the court "Birds of Prey," when read and considered in its

relation to and connection with the other articles libelous and defamatory in

nature, published of and concerning the plaintiff by these nine defendants

anterior and subsequent to the publication of this article, and having reference to

the same subject matter as shown by the evidence, is one of the worst libels of

record. It is safe to say that in all the court reports to the Philippine Islands, or of

Spain, or the United States, there is not to be found a libel case in which there is a

more striking exemplification of the spirit of hatred, bad faith, evil motive,

mischievous intent, actual malice, nefarious purpose, base malignity, or gross

malevolence.

It is proper to observe also that since the beginning of this attack on the plaintiff

in the year 1906 down almost to the present time, so far from there being any

apology, retraction, or effort to repair the injury already done as far as lay in the

power of the defendants, the persecution, wrong, and tortious injury to the

plaintiff had been steadily kept up and persisted in, without the slightest

abatement of the malevolent spirit.

There has been neither retraction, apology, nor reparation; per contra, the libel has

been repeated, reiterated, and accentuated, and widely and extensively

propagated by these nine defendants through the columns of their said paper

and otherwise; and it appears from the evidence that especial effort has been

made by these same defendants to give as much publicity as possible to the

libelous and defamatory words used of and concerning the plaintiff in said

editorial.

Through their instrumentality and persistency in asserting and reasserting its

truth, this diabolical libel has been spread broadcast over the Philippine Islands

and to other parts of the world. In said criminal case No. 4295 some of these nine

defendants pleaded the truth of the charges; and in Exhibit A-Q is to be found

this language: "The defense will adduce its evidence demonstrating the truth of

every one of the facts published."

In their said paper of the 11th of January, 1909, there is published statement:

"The brief period of time allowed us by the court, at the request of the

counsel, to gather evidence which we are to adduce in our effort to

demonstrate the truth of the accusation that we have formulated in the

article which is the subject of the agitation against us, having expired, the

trial of the case against our director had been resumed." (See pp. 63 and 67

of the evidence.)

And about the same time they also declared in their said paper that "there is

more graft than fish in the rivers of Benguet." And this in the year of our Lord

1909! the persecution having begun in 1905; thus indicating that there is to be no

"let-up" or cessation of the hostile attitude toward the plaintiff or the vilification

of his name and assaults upon his character, much less a retraction or an

apology, unless drastic means and measures are made use of to the end that

there may be no further propagation of the libel, or asseveration, or reiteration of

its truth.

This article "Birds of Prey" charges the plaintiff with malfeasance in office and

criminal acts, and is therefore libelous per se. It in substance charges the plaintiff

with the prostitution of his office as a member of the Civil Commission of the

Philippine Islands and Secretary of the Interior of said Islands for personal ends.

It is charged also substantially that plaintiff in his official capacity wasted the

public funds for the purpose of promoting his own personal welfare, and that he

violated the laws of the Philippine Islands and the ordinances of the city of

Manila.

In its essence he is charged with taking part in illegal combinations for the

purpose of robbing the people with the object of gain for himself and for others;

with being a bird of prey, a vulture (buzzard), an owl, and a vampire that sucks

the blood of the victim (meaning the people) until he leaves it bloodless, that is to

say, robs the people, until he leaves them wretched and poverty-stricken,

deprived of all worldly possessions; and lastly, that he, the plaintiff, like

Belshazzar, has been weighed in the balance and found wanting as a high

Government functionary; all of which charges are false and malicious and

without and foundation whatever in fact, as the evidence fully demonstrates.

It is also a matter of fact, and the court so finds, that said defamation was written

and published that it might be understood, and it was understood, by the public

officials of the Government and the people of the Philippine Islands in general,

and wherever else said newspaper may have circulated and been read, as

charging the plaintiff with the tortious and criminal acts and conduct charged in

said editorial as hereinbefore specified and interpreted.

The court finds it also true that, besides assailing the integrity and reviling the

reputation of the plaintiff, said nine defendants, in publishing said libel, did so

with the malicious intention of inciting the Filipino people to believe that the

plaintiff was despotic and corrupt and unworthy of the position which he held,

and for this reason to oppose his administration of the office in his charge as

Secretary of the Interior, and in this way they endeavored to create enormous

difficulties for him in the performance of his official duties, and to make him so

unpopular that he would have to resign his office as a member of the Civil

Commission of the Philippines and Secretary of the Interior.

It is also true that the said nine defendants, by means of said libel, and other like

false statements in their said newspaper, have been deliberately trying to destroy

the confidence of the public in the plaintiff and to incite the people to place

obstacles in his way in the performance of his official duties, in consequence of

which the plaintiff has met with many difficulties which have greatly increased

his labors as a public official.

It further appears from the evidence that not only has an effort been made by

these nine defendants to give as much publicity as possible to the charges, but in

order that said defamation should attract the attention of the public, they

published the same under a heading in large, bold and showy type, so that it

might be easily seen and read by all the subscribers and readers of said paper.

In full view of all the evidence, therefore, it is clearly seen that every essential

allegation of the complaint is true substantially as therein claimed, and that the

whole of the said editorial relating to the misconduct and bad character of the

plaintiff is false and without the slightest foundation in fact. Not a scintilla of

evidence was introduced in support of any injurious charge made therein against

the plaintiff, to say nothing of the plaintiff's evidence that each and every charge

of malfeasance therein contained is false, and without reference to whether a

failure to plead the truth admits the falsity of the charge.

The evidence shows no "special" or "actual pecuniary damage," and none is

alleged in the complaint. Two other kinds of damages, however are claimed, to

wit, general damages for injuries to the feelings and reputation of the plaintiff

and additional work to which he has been put by the conduct of the defendants,

which are laid in the sum of P50,000, and "punitive," exemplary, or vindictive

damages, "as a warning to the defendants," or as expressed in Act 277 of the

Philippine Commission, as a just punishment to the libelers and an example to

others," which are laid in the same sum of P50,000.

The nine defendants being liable to the plaintiff for damages, the next question to

be decided is what amount of damages should be awarded the plaintiff for the

injury to his reputation and feelings and his being a proper case for punitive

damages, the further question is, what sum shall be awarded as a just

punishment to these nine libelers and as an example to others. In neither of these

cases is there any precise measure of damages.

In determining the amount to be awarded in the first instance it is proper to

consider the previous character, influence, reputation, standing, official position,

hope of advancement, prospect of promotion, and social status of the plaintiff

and his family, and all the circumstances connected with the case.

The plaintiff is a man in the prime of life, holding, as he has held for the last ten

years an important, responsible, lucrative, high and exalted position of trust and

honor in the service of the Government of the United States, in the Philippine

Islands, without a blotch on his family escutcheon, so far as the evidence shows,

and with an untarnished reputation as a man, as a citizen, and as a Government

official.

He is a man of honesty, integrity, and high social position; a man of learning,

famous as a scientist, and scientific achievements and scholarly attainments, a

man of industrious habits, genuine worth, and intellectual force. He has read,

studied, traveled and learned much, and is an author of merit and distinction. He

was for a long while a professor in one of the largest and most renowned

institutions of learning in the world; he is a man of vast experience, broad and

liberal views, and an extensive acquaintanceship, not only in the Philippine

Islands, but in the United States and other countries of the world. He was well

and favorably received by the people wherever he journeyed previous to this

atrocious libel upon his integrity and reputation.

He has discharged the duties of his lofty official position in a manner that reflects

credit upon himself as well as the Government which he represents, and

apparently with entire satisfaction to all of his superiors in office and the people

generally; and but for this pernicious, outrageous, and highly reprehensible

assault upon his good name, fame and reputation, there were prospects of

promotion to higher honors. And so far as his personal and private record is

concerned it was without a blemish anterior to the time when these unfounded

and dastardly aspersions were cast upon it by these nine defendants.

Indeed, it is only necessary to advert to the testimony of the defense itself to

ascertain that the plaintiff is an honorable man, and without a stain upon his

character, officially or otherwise. It would be interesting to note here in parallel

columns and compare the charges made in "Birds of Prey" and the testimony of

one of the witnesses for the defendants.

Felipe Buencamino, an intelligent witness for the defense, in his testimony (p.

240) when asked the question, Do you know Mr. Worcester?" he answers, "Yes,

sir: I know him as an honorable man. I also know him as anhonest, honorable public

official." In answer to another question he says, "As I have said, I know Mr.

Worcester as a private citizen and as a public official, and my opinion of him is

that of honorable man and an upright official." And no other witness testified

anything to the contrary.

"A good name is rather to be chosen than great riches and loving favor

rather than silver of gold."

"Who steals my purse steals trash;

x x x x x x x x x

But he that filches from me my good name,

Robs me of that which not enriches him

And makes me poor indeed."

The enjoyment of a private reputation is as much a constitutional right as the

possession of life, liberty or property. It is one of those rights necessary to human

society that underlie the whole scheme of human civilization.

"The respect and esteem of his fellows are among the highest rewards of a

well-spent life vouchsafed to man in this existence. The hope of it is the

inspiration of youth, and their possession the solace of later years. A man

of affairs, a business man, who has been seen and known of his fellowmen

in the active pursuits of life for many years, and who has developed a

great character and an unblemished reputation, has secured a possession

more useful, and more valuable than lands, or houses, or silver, or gold . .

.

"The law recognizes the value of such a reputation, and constantly strives

to give redress for its injury. It imposes upon him who attacks it by

slanderous words, or libelous publication, a liability to make full

compensation for the damage to the reputation, for the shame and obloquy,

and for the injury to the feelings of the owner, which are caused by the

publication of the slander or the libel.

"It goes further. If the words are spoken, or the publication is made, with

the intent to injure the victim, or with the criminal indifference to civil

obligation, it imposes such damages as a jury (in this case the judge), in

view of all the circumstances of the particular case adjudge that the

wrongdoer ought to pay as an example to the public, to deter others from

committing like offenses, and as a punishment for the infliction of the

injury.

"In the ordinary acceptance of the term, malice signifies ill will, evil intent,

or hatred, while it is legal signification is defined to be "a wrongful act

done intentionally, without legal justification." (36 C. C. A., 475.)

Surely in the case at bar there was a wrongful or tortious act done intentionally

and without the semblance of justification or excuse, or proof that the libelous

charges against the plaintiff were "published and good motives and justifiable

ends."

But the Legislature and the highest judicial authority of these Islands have

spoken in no uncertain words with regard to the rights of the plaintiff in this

case; and we need not necessarily turn to the law of libel elsewhere, or the

decision of the courts in other jurisdictions to ascertain or determine his rights.

In sections 1, 2, 3, 4, 6, and 11 of the Libel Law (Act 277, Philippine Commission)

is to be found the law of these Islands especially applicable to this case. Section 1

thereof defines libel. Section 2 provides that every person who willfully and with

a malicious intent to injure another publishes, or procures to be published, any

libel shall be punished as therein provided. Section 3 provides that an injurious

publication is presumed to have been malicious if no justifiable motive for

making it is shown. Section 4 provides, among other things, that in all criminal

prosecutions the truth may be given in evidence; but to establish this defense, not

only must the truth of the matter charged as libelous be proven, but also that it

was published with good motives and for justifiable ends; and the presumptions,

rules of evidence, and special defenses are equally applicable in civil and

criminal actions, according to section 11 of said Act.

Section 6 is as follows:

"Every author, editor, or proprietor of any book, newspaper, or serial

publication is chargeable with the publication of any words contained in

any part of such book or number of each newspaper or serial as fully as if

he were the author of the same."

And section 11 provides as follows:

"In addition to such criminal action, any person libeled as hereinbefore set

forth shall have a right to a civil action against the person libeling him for

damages sustained by reason of such libel, and the person so libeled shall

be entitled to recover in such civil action not only the actual pecuniary

damages sustained by him, but also damages for injury to his feelings and

reputation, and in addition such punitive damages as the court may think

will be a just punishment to the libeler and an example to others. Suit may

be brought in any Court of First Instance having jurisdiction of the parties.

The presumptions, rules or evidence and special defenses provided for in

this chapter for criminal prosecutions shall be equally applicable in civil

actions under this section."

"The proprietor of a printing plant is responsible for publishing a libel.

According to the legal doctrines and jurisprudence of the United States,

the printer of a publication containing libelous matter is liable for the

same." (Mr. Justice Torres, in U.S. vs. Ortiz, 8 Phil. Rep., 757.) But said

section 6 plainly fixes the liability of editors and proprietors of

newspapers, and is clear enough for all the purposes of this case.

Mr. Justice Carson (5 Phil. Rep. 1551), speaking for our Supreme Court, says:

"When there is an averment in the complaint that the defamatory words

used refer to the plaintiff, and it is proven that the words do in fact refer to

him and are capable of bearing such special application, an action for libel

may be maintained even though the defamatory publication does not refer

to the plaintiff by name."

And Mr. Justice Willard (12 Phil. Rep., 4282), for the same high authority, says:

"In an action for libel damages for injury to feelings and reputation may be

recovered though no actual pecuniary damages are proven.

"Punitive damages cannot be recovered unless the tort is aggravated by

evil motive, actual malice, deliberate violence or oppression."

That is to say, if there is evil motive, or actual malice or deliberate violence, or

oppression then punitive damages, or "smart money," may be recovered.

And Justice Carson (U.S. vs. Sedano, 14 Phil., Rep., 338), also says:

"Actual or express malice of an alleged libelous publication may be

inferred from the style and tone of the publication.

"The publication of falsehood and calumny against public officers and

candidates for public office is specially reprehensible and is an offense

most dangerous to the people and to the public welfare.

"The interest of society require that immunity should be granted to the

discussion of public affairs, and that all acts and matters of a public nature

may be freely published with fitting comments and strictures; but they do

not require that the right to criticise public officers shall embrace the right

to base such criticism under false statements of fact, or attack the private

character of the officer, or to falsely impute to

him malfeasance or misconduct in office."

And there are almost numberless English and American authorities in perfect

harmony with these decisions of our Supreme Court too numerous indeed to be

cited here; and it is not necessary.

Among the leading cases, however, in the United States, is that of Scott vs.

Donald (165 U.S., 58) and cases therein cited. In this case the court says: "Damages

have been defined to be the compensation which law will allow for an injury

done, and are said to be exemplary and allowable in excess of the actual loss

when the tort is aggravated by evil motive, actual malice, deliberate violence or

oppression," which is in entire harmony with Justice Willard's decision

hereinbefore cited.

And quoting from the decision in Day vs. Woodworth (13 Howard, 371) the same

high court says:

"In actions of trespass, where the injury has been wanton and malicious,

or gross or outrageous, courts permit juries (here the court) to add to the

measured compensation of the plaintiff which he would have been

entitled to recover, had the injury been inflicted without design or

intention, something further by way of punishment or example, which has

sometimes been called "smart money." "

It thus clearly appears that the facts established in the case at bar are more than

sufficient to bring it within the rule of law here laid down by the highest judicial

authority.

Section 11 of the Libel Law expressly allows general damages; and Mr. Justice

Willard, in Macleod vs. Philippine Publishing Company,3 says:

"The general damages which are allowed in actions of libel are not for

mental suffering alone, but they are allowed for injury to

the standing and reputation of the person libeled, and the common law of

England and America presumed that such damages existed without proof

thereof from the mere fact of publication of the libel."

In Day vs. Woodworth, the Supreme Court of the United States recognized the

power of a jury in certain actions in tort to assess against the tort feasor punitive

damages. Where the injury has been inflicted maliciously or wantonly, and with

circumstances of contumely, or indignity, the judge or jury, as the case may be, is

not limited to the ascertainment of a simple compensation for the wrong

committed against the aggrieved person.

"The public position of the plaintiff, as an officer of the Government, and

the evil example of libels, are considerations with the jury (here the judge)

for increasing damages." (Tillotson vs. Cheetham, 3 Johns, 56.)

"The character, condition and influence of the plaintiff are relevant on the

matter of the extent of damages." (Littlejohn vs. Greely, 22 How. Prac., 345;

13 Abb. Prac., 41, 311.)

"Where the publication is libelous, the law presumes that it was made

with malice — technical, legal malice, but not malice in fact — and the

amount of damages depends in a large degree upon the motives which

actuated the defendants in its publication; and in such cases the law leaves

it to the jury (here the judge) to find a return such damages as they think

right and just, by a sound, temperate, deliberate, and reasonable exercise

of their functions as jurymen." (Erber vs. Dun. (C. C.) 12 Fed., 526.)

"Actions of libel, so far as they involve questions of exemplary damages,

and the law of principal and agent, are controlled by the same rules as are

other actions of tort. The right of a plaintiff to recover exemplary damages

exists wherever a tortious injury has been inflicted recklessly or wantonly,

and it is not limited to cases where the injury resulted from personal

malice or recklessness of the defendant. It follows that the owner of a

newspaper is as responsible for all the acts of omission and commission of

those he employs to edit it and manage its affairs, as he would be if

personally managing the same.' (Malloy vs. Bennett, (C. C.) 15 Fed., 371.)

"The fact that a publication, libelous per se, was made without any attempt

to ascertain its correctness is sufficient to justify a finding that defendant

committed libel client with a wanton indifference, and with actual malice

sufficient to sustain exemplary damages." (Van Ingen vs. Star Co., 1 App.

Div., 429, 37 N.Y., 114.)

"The court is not authorized to set aside a verdict for $45,000 in an action

for libel, where it appears that plaintiff was persistently persecuted in the

columns of defendant's newspaper, and that he and his family were held

up to public contempt and ridicule, and defendants withdraw from the

case after failing to establish a plea of justification." (Smith vs. Times Co.,

(Com. p. 1) 4 Pa. Dist. Rep., 399.)

"In considering the amount with the defendant shall pay, on this account

(exemplary damages) the turpitude of his conduct and his financial ability

are only considered; and such consideration is not in view of the injury or

distress of the plaintiff, but in behalf of the public; the wrongful act is

regarded as an indication of the actor's vicious mind — an overt deed of

vindictive or wanton wrong, offensive and dangerous to the public good.

This is the view of those damages which generally prevails." (Sutherland

on Damages, vol. 2, p. 1092. title Exemplary Damages.)

"Punitive damages are recoverable not to compensate the plaintiff, but

solely to punish the defendant. This legal motive would suffer defeat if

punitive damages could not be given for a malicious attack on a

reputation too well established to receive substantial injury at the hands of

a libeler." (Judge Bond in Ferguson vs. Pub. Co., 72 Mo. App., 462.)

It may be suggested that the reputation of the plaintiff in this case is too well

established to be seriously affected by the defamatory words used of and

concerning him in "Birds of Prey," but it would not be proper to gravely consider

this suggestion.

The conditions in these Islands are peculiar. The minds, thoughts, and opinions

of the people are easily molded, and the public is credulous and perhaps

frequently too ready to believe anything that may be said in derogation of an

American official, especially when it is published and vouched for by the

editorial and business management and proprietors if a newspaper of the

prominence, pretensions, circulation and influence if "El Renacimiento," which

paper is everlastingly proclaiming in its columns that it is being conducted and

published solely in the interests of the Filipino people — pro bono publico. There is

stronger disposition to give credence to what is said in a newspaper here in the

Islands the elsewhere, and when abuse, vilification, and defamation are

persistently practiced for a period of several years, without modification or

retraction, but with renewed emphasis, the people naturally come to believe in

its verity and authenticity.

It is apparent from the evidence that as an effect of the persecution of the plaintiff

by "El Renacimiento" and the libel published in its columns, the minds of the

major part of the Filipino people have been poisoned and prejudiced against the

plaintiff to such an extent that he is regarded by these people as odious,

dishonest, unscrupulous and tyrannical.

It may be that his reputation has not suffered so severely with those of his own

race, but when it is considered that his vocation has tenfold more to do with the

Filipinos than with his own people, that his official duties place him in constant

contact with them, and that his success in his chosen career is largely dependent

upon their good will and support, it is manifest that the damage to his reputation

has been very great and that a large sum of money should be awarded to

indemnify him, as far as money can indemnify, for the loss of his good name

with the Filipino people.

The plaintiff came to the Philippine Islands when a young man, full of hope and

ambition. Since his arrival he has devoted himself incessantly and indefatigably

to the uplifting of the inhabitants of the Archipelago and to the faithful

performance, as far as he was able, of the pledges and promises of the

Government to the Filipino people. The duties of his particular office were such

as brought him in more immediate and constant contract with the people than

any other official of the same category in these Islands.

It is clearly shown that the plaintiff faithfully endeavored to perform, and did

efficiently perform, all of these duties, doing everything that he could in an

unselfish and disinterested manner of the welfare and development of the

country and its people, knowing full well that his career, as well as his

advancement, depended largely upon the good will of these people, and that by

incurring their censure or displeasure he would have little hope of success in his

chosen work.

Imagine, therefore, the chagrin, disappointment, mortification, mental suffering,

and distress, and perturbation of spirit that would necessarily be occasioned him

when he discovered that through the nefarious, studied, and practiced

persecution of the paper in question, these high hopes were blasted, and that,

instead of having gained the respect and gratitude of the people for the

assiduous labors devoted to their uplifting, they had been made to believe that,

instead of being a benefactor, he was a vampire that was sucking their life blood,

a corrupt politician who was squandering the money wrung from the people by

means of taxation, in schemes for his own personal aggrandizement and

enrichment.

That instead of developing the mineral wealth of the Islands he was taking up all

the rich veins and appropriating them in the names of subservient tools, to his

own personal use, benefit and profit. That instead of protecting the people from

disease, he was, by means of infected meat and for his own personal gain,

spreading contagion among them.

That he united in his person all the bad qualities of the vulture, the eagle, and the

vampire; that, in short, he was a "bird of prey," with all that is implied in that

term in its worst acceptation; that he was a corrupt tyrant, who never lost an

opportunity to do the people hurt; that instead of wishing them well and seeking

their advancement, he was their enemy, who never lost an opportunity to

degrade and humiliate them; that instead of preferring them for office and

positions of official trust, he treated them with all sorts of contempt and

indifference.

It is difficult to appreciate the feelings of a refined soul in its contemplation of a

result so disastrous, so unjust, and so unmerited.

It is furthermore shown that when the plaintiff came to these Islands a young

scientist he had already won fame in his own country; that he is a fellow of the

important scientific associations in the world. His election as a fellow or member

of these scientific bodies shows that his labors in the Philippines were the object

of solicitude by the prominent scientific and learned men not only of his own

race, but in many other civilized countries of the world. Important results were

evidently expected of him by them, and it can not be doubted that they expected

of him of life honestly devoted to the conscientious discharge of his duties as a

trusted public functionary of the American Government in the Philippine

Islands.

And yet he is falsely denounced in the columns of said newspaper to his fellows

of these societies as a man who is so absolutely corrupt, so inordinately selfish

and avaricious that he has not considered for a moment the duties incumbent

upon him; that he has been oblivious to every obligation of trust and confidence,

and that he is unworthy of the respect of honest men.

One witness testified that he read this libel in the public library of the city of

Boston. It is furthermore shown that copies of this paper went to Spain, England,

and to different parts of the United States; and inasmuch as the plaintiff is a man

of prominence in the scientific world, it is to be inferred that his fellows became

more or less aware of these heinous charges.

Thus we find that the plaintiff is here confronted with disappointed ambition

and frustrated hopes, and placed in the humiliating attitude of having to explain

to his fellows that the charges are untrue, of adducing evidence to clear himself,

perhaps never with complete success, of the stain that has been cast upon his

reputation by the libelous and defamatory declarations contained in "Birds of

Prey."

In view of the foregoing findings of fact and circumstances of the case and the

law applicable thereto,

It is the opinion of the court, and the court so finds, that the plaintiff has

sustained damages on account of wounded feelings and mental suffering and

injuries to his standing and reputation in the sum of thirty-five thousand

(P35,000) pesos, and that he is entitled to recover this sum of the nine defendants

named, as being responsible for having written, printed, and published said libel;

and that the plaintiff is entitled to recover of them the further sum of twenty-five

thousand (P25,000) pesos, as punitive damages, which the court thinks will be a

just punishment to these nine libelers and an example to others.

Wherefore, it is so ordered and adjudged that the plaintiff, Dean C. Worcester,

have and recover of the defendants, Martin Ocampo, Teodoro M. Kalaw, Lope K.

Santos, Manuel Palma, Arcadio Arellano, Angel Jose, Galo Lichauco, Felipe

Barretto, and Gregorio M. Cansipit, jointly and severally, the sum of sixty

thousand (P60,000) pesos, and the costs of suit, for which execution may issue.

It is ordered. At Manila, P.I., this 14th day of January , 1910.

From said decision the defendants appealed and made the following assignments of

error in this court:

I.

The court erred in overruling our motions for suspension of this case, in its

present state, until final judgment should be rendered in criminal case No. 4295

of the Court of First Instance of Manila, pending appeal in the Honorable

Supreme Court, for libel based also on the editorial, "Birds of Prey."

II.

The court erred in admitting as evidence mere opinion adduced by counsel for

the plaintiff with the intention of demonstrating to whom the editorial, alleged to

the libelous, refers.

III.

The court erred in giving greater preponderance to the opinions of the witnesses

for the plaintiff than to the expert testimony of the defense.

IV.

The court erred in declaring the editorial on which the complaint is based to be

libelous per se and to refer necessarily to the plaintiff, Dean C. Worcester.

V.

The court erred in declaring the defendants Martin Ocampo, Manuel Palma,

Arcadio Arellano, Angel Jose, Felipe Barretto, Gregorio M. Cansipit, and Galo

Lichauco to be owners of "El Renacimiento."

VI.

The court erred in not admitting Exhibits 1 and 3 presented by counsel for the

defendants.

VII.

The court erred in rendering judgment against the defendants.

VIII.

The court erred in sentencing the defendants jointly "and severally" to pay to the

plaintiff, Dean C. Worcester, the sum of P60,000.

IX.

The court erred in not ordering that execution of the judgment to be confined to

the business known as "El Renacimiento" and to the defendant Teodoro M.

Kalaw, without extending to property of the alleged owners of said newspaper

which was not invested therein by them at its establishment.

X.

The court erred in granting damages to the plaintiff by virtue of the judgment

rendered against the defendants.

XI.

The court, finally, erred in granting to the plaintiff punitive damages against the

alleged owners of "El Renacimiento," admitting the hypothesis that said editorial

is libelous per se and refers to the Honorable Dean C. Worcester.

The theory of the defendants, under the first assignment of error, is that the civil action

could not proceed until the termination of the criminal action, relying upon the

provisions of the Penal Code in support of such theory. This court, however, has

decided in the case of Ocampo et al. vs. Jenkins (14 Phil. Rep., 681) that a judgment in a

criminal prosecution for libel, under the provisions of Act 277 of the Civil commission,

constitutes no bar or estoppel in a civil action based upon the same acts or transactions.

The reason most often given for this doctrine is that the two proceedings are not

between the same parties. Different rule as to the competency of witnesses and the

weight of evidence necessary to the findings in the two proceedings always exist. As

between civil and criminal actions under said Act (No. 277) a judgment in one is no bar

or estoppel to the prosecution of the other. A judgment in a criminal cause, under said

Act, can not be pleaded as res adjudicata in a civil action. (Stone vs. U.S., 167 U.S., 178;

Boyd vs. U.S., 616 U. S., 616, 634; Lee vs. U.S., 150 U.S., 476, 480; U.S. vs. Jaedicke, 73 Fed.

Rep., 100; U.S. vs.Schneider, 35 Fed. Rep., 107; Chamberlain vs. Pierson, 87 Fed. Rep.,

420; Steel vs. Cazeaux, 8 Martin (La.), 318, 13 American Decisions, 288; Betts vs. New

Hartford, 25 Conn., 185.)

In a criminal action for libel the State must prove its case by evidence which shows the

guilt of the defendant, beyond a reasonable doubt, while in a civil action it is sufficient

for the plaintiff to sustain his cause by a preponderance of evidence only.

(Ocampo vs. Jenkins (supra); Reilly vs. Norton, 65 Iowa, 306; Sloane vs. Gilbert, 27

American decisions, 708; Cooley on Torts, sec. 208; Greenleaf on Evidence, 426;

Wigmore on Evidence, secs. 2497, 2498.)

With reference to the second assignment of error above noted, we find that this court

has already decided the question raised thereby, in the case of U. S. vs. Ocampo et al. (18

Phil. Rep., 1).

During the trial of the cause the plaintiff called several witnesses for the purpose of

showing that the statements made in said alleged libelous editorial were intended to

apply to the Honorable Dean C. Worcester, Secretary of the Interior. The defendants

duly objected to these questions and excepted to the ruling of the court admitting them.

In the case of Russell vs. Kelley (44 Cal., 641, 642) the same question was raised and the

court, in its decision, said:

The rule laid down in 2 Stockey on Slander (p. 51) is that the application of the

slanderous words to the plaintiff and the extrinsic matters alleged in the

declaration may be shown by the testimony of witnesses who knew the parties

and circumstances and who can state their judgment and opinion upon the

application and meaning of the terms used by the defendant. It is said that where

the words are ambiguous on the face of the libel, to whom it was intended to be

applied, the judgment and opinion of witnesses, who from their knowledge of

the parties and circumstances are able to form a conclusion as to the defendant's

intention and application of the libel is evidence for the information of the jury.

Mr. Odgers, in his work on Libel and Slander (p. 567), says:

The plaintiff may also call at the trial his friends or others acquainted with the

circumstances, to state that, in reading the libel, they at once concluded it was

aimed at the plaintiff. It is not necessary that all the world should understand the

libel. It is sufficient if those who know the plaintiff can make out that he is the

person meant. (See also Falkard's Stockey on Libel and Slander, 4th English

edition, 589.)

The correctness of this rule is not only established by the weight of authority but is

supported by every consideration of justice and sound policy. The lower court

committed no error in admitting the opinion of witnesses offered during the trial of the

cause. One's reputation is the sum or composite of the impressions spontaneously made

by him from time to time, and in one way or another, upon his neighbors and

acquaintances. The effect of a libelous publication upon the understanding of such

persons, involving necessarily the identity of the person libeled is of the very essence of

the wrong. The issue in a libel case concerns not only the sense of the publication, but,

in a measure its effect upon a reader acquainted with the person referred to. The

correctness of the opinion of the witnesses as to the identity of the person meant in the

libelous publication may always be tested by cross-examination. (Enquirer

Co. vs. Johnston, 72 Fed. Rep., 443; 2nd Greenleaf on Evidence, 417;

Nelson vs. Barchenius, 52 Ill., 236; Smith vs.Miles, 15 Vt., 245; Miller vs. Butler, 6

Cushing (Mass.), 71.)

It is true that some of the courts have established a different rule. We think, however,

that a large preponderance of the decisions of the supreme courts of the different States

is in favor of the doctrine which we have announced here.

We are of the opinion that assignments of error Nos. 3, 4, and 7 may fairly be

considered together, the question being whether or not the evidence adduced during

the trial of the cause in the lower court shows, by a preponderance of the evidence, that

the said editorial was libelous in its character. Here again we find that this question has

been passed upon by this court in the case of U. S. vs. Ocampo et al. (18 Phil. Rep., 1),

and we deem it unnecessary to discuss this question again, for the reason that the

evidence adduced in the present cause was practically the same, or at least to the same

effect, as the evidence adduced in the cause of U.S. vs. Ocampo et al.It is sufficient here to

say that the evidence adduced during the trial of the present cause shows, by a large

preponderance of the evidence, that said editorial was one of the most pernicious and malicious

libels upon a just, upright and honorable official, which the courts have ever been called upon to

consider. There is not a scintilla of evidence in the entire record, notwithstanding the fact that

the defendants from time to time attempted to make a show of proving the truthfulness of the

statements made in said editorial, which in any way reflects upon the character and high ideals of

Mr. Dean C. Worcester, in the administration of his department of the Government.

With reference to the fifth assignment of error, to wit: That the court erred in holding

that the defendants, Martin Ocampo, Manuel Palma, Arcadio Arellano, Angel Jose,

Felipe Barretto, Gregorio M. Cansipit, and Galo Lichauco, were the proprietors of "El

Renacimiento," the lower court said:

Much time was consumed also in adducing evidence to show that none of the

twelve defendants were the owners of "El Renacimiento" and "Muling

Pagsilang," but that six of them had originally contributed their money as a

patriotic donation to the Filipino people, and that Martin Ocampo simply held

the money and property of the paper as trustee for this people, and that the

paper was being devoted exclusively to philanthropic and patriotic ends, and

that Galo Lichauco had agreed to contribute to the same ends but had not done

so.

"This proposition," said the lower court, "in the light of the evidence, is so preposterous

as to entitle it to little, if any, serious consideration. To ask the court to believe it is

tantamount to asking the court to stultify reason and common sense. That those seven

defendants named contributed their respective sums of money, as shown by the

evidence, to the foundation of said newspaper in 1901, for their own personal benefit

and profit, is fully and unmistakably established. It is equally well established that

Martin Ocampo is and was, not only a part owner, but that he has been and is still the

administrator or business manager of said newspaper, and that the other six persons

named are shareholders, part owners and proprietors thereof and were such on the said

30th of October, 1908."

Examining the evidence adduced during the cause in the lower court, we find,

sometime before the commencement of the present action and before any question was

raised with reference to who were the owners of the said newspaper, that the

defendant, Arcadio Arellano, in the case of United States vs. Jose Sedano (14 Phil. Rep.,

338), testified upon that question as follows:

Q. Who are the proprietors of "El Renacimiento"?

A. I, Martin Ocampo, Gregorio Mariano (Cansipit), Mr. Barretto, and Galo

Lichauco.

Q. Who else?

A. No one else.

Q. And Rafael Palma — is not so?

A. No, sir; Manuel Palma, the brother of Rafael Palma.

During the trial of the present cause, Arcadio Arellano testified that his declarations in

other cause were true.

It also appears from the record (Exhibit B-J) that in the month of November, 1907, long

before the commencement of the present action, "El Renacimiento," in reply to an article

which was published in "El Comercio," published the following statement:

They (it) say (s) that this enterprise" (evidently meaning the publication of "El

Renacimiento") "is sustained by Federal money; that we are inspired by Federal

personages. We declare that this, besides being false, is calumnious. The

shareholders of this company are persons well known by the public, and never at

any moment of their lives have they acted with masks on--those masks for which

"El Comercio" seems to have so great an affection. They are, as the public knows:

Señores Martin Ocampo, Manuel Palma, Arcadio Arellano, Angel Jose, Galo Lichauco,

Felipe Barretto, and Gregorio Cansipit.

Arcadio Arellano also testified during the trial of the present cause that he contributed

P750 to the establishment of "El Renacimiento;" that Martin Ocampo contributed the

sum of P500; that Mariano Cansipit, Felipe Barretto and Angel Jose contributed the sum

of P250 or P500 each; that Galo Lichauco contributed the sum of P1,000 and that Manuel

Palma contributed P3,000.

During the trial of the present cause Arcadio Arellano, Martin Ocampo, and Angel Jose

testified as witnesses, relating to the ownership of the newspaper called "El

Renacimiento." They testified that whatever money they gave for the purpose of

establishing said newspaper, was given as a donation, and that they were neither the

owners nor coowners of said periodical. The defendants, Manuel Palma, Galo Lichauco,

Felipe Barretto, and Gregorio Cansipit, did not testify as witnesses during the trial of

the cause in the lower court. No reason is given for their failure to appear and give

testimony in their own behalf. The record does not disclose whether or not the

declarations of Arcadio Arellano, in the case of U. S. vs. Sedano (14 Phil. Rep., 338) at

the time they were made, were called to the attention of Manuel Palma, Galo Lichauco,

Felipe Barretto, and Gregorio Cansipit, as well as the reply to "El Comercio," above

noted. Proof of said declarations and publication was adduced during the trial of the

cause in the present case, and the attorney of these particular defendants well knew the

purpose and effect of such evidence, if not disputed; but, notwithstanding the fact that

said declarations and publication were presented in evidence, and notwithstanding the

fact that the attorney for the defendants knew of the purpose of such proof, the

defendants, Palma, Lichauco, Barretto, and Cansipit, were not called as witnesses for

the purpose of rebutting the same. It is a well settled rule of evidence, that when the

circumstances in proof tend to fix the liability on a party who has it in his power to offer evidence

of all the facts as they existed and rebut the inferences which the circumstances in proof tend to

establish, and he fails to offer such proof, the natural conclusion is that the proof, if produced,

instead of rebutting would support the inferences against him, and the court is justified in acting

upon that conclusion. (Railway Company vs. Ellis, C. C. A. Reports, vol. 4, p. 454;

Commonwealth vs. Webster, 5 Cush. (Mass.), 295; People vs.McWhorter 4 Barb. (N. Y.),

438.)

Lord Mansfield, in the case of Blatch vs. Archer (Cowper, 63, 65) said:

It is certainly a maxim that all the evidence is to be weighed according to the

proof which it was in the power of one side to have produced, and in the power

of the other side to have contradicted.

Mr. Starkey, in his valuable work on evidence (vol. 1, p. 64), lays down the rule that:

The conduct of a party in omitting to produce evidence in elucidation of the

subject matter in dispute, which is within his power and which rests peculiarly

within his own knowledge, frequently offers occasion for presumptions against

him, since it raises the strong suspicion that such evidence, if adduced, would

operate to his prejudice. (Pacific Coast et al. Co. vs. Bancroft-Whitney Co., 36 C.

C. A. Reports, 136, 153.)

At the time of the said declarations of Arcadio Arellano in the case of Sedano and at the

time of the said publication in reply to "El Comercio," there was no reason for stating

anything except the truth: neither does there seem to have been any reason for publishing the

fact that the defendants were the owners of "El Renacimiento" unless it was true.

At the time there seemed to be no reason to have it appear that they were donors and

public benefactors only. They seemed to be proud of the fact that they were the owners.

The editors, publishers, and managers of "El Renacimiento," at the time the reply to "El

Comercio" was published, seemed to be anxious to announce to the public who its

owners were. It ("El Renacimiento") had not then realized that it belonged to no one;

that it had been born into the community without percentage; that it had been created a

terrible machine for the purpose of destroying the good character and reputation of

men without having any one to respond for its malicious damage occasioned to

honorable men; that it was a cast-off, without a past or the hope of a future; that it was

liable to be kicked and buffetted about the persecuted and destroyed without any one to

protect it; that its former friends and creators had scattered hither and thither and had

disappeared like feathers before a cyclone, declaring, under oath, that they did not

know their offspring and were not willing to recognize it in public. It seems to have

been a Moses found in the bulrushes, destined by its creators to be a great good among

the Filipino people, in teaching them to respect the rights of persons and property; but,

unlike its Biblical prototype, it became, by reason of its lack of parentage, an engine of

destruction let loose in the State, to enter the private abode of lawabiding citizens and to

take from them their honor and reputation, which neither it nor the State could restore.

To rob a man of his wealth is to rob him of trash, but to take from him his good name

and reputation is to rob him of that which does not make the robber richer and leaves

the person robbed poor indeed.

The appellants tried to make it appear that the money which they gave for the

establishment of "El Renacimiento" was a pure donation. They claim that it was a

donation to the Filipino people. They do not state, however, or attempt to show what

particular persons were to manage, control, and direct the enterprise for which the

donation was made. A donation must be made to definite persons or associations. A

donation to an indefinite person or association is an anomaly in law, and we do not

believe, in view of all of the facts, that it was in fact made. A donation must be made to

some definite person or association and the donee must be some ascertained or

ascertainable person or association.

A donation may be made for the benefit of the public, but it must be made, in the very

nature of things, to some definite person or association. A donation made to no person

or association could not be regarded as a donation in law. It could not be more than an

abandonment of property. Of course where a donation is in fact made, without reservation

to a particular person or association, the donor is no longer the owner of the thing

donated nor responsible, in any way, for its use, provided that the object, for which the

donation was made, was legal. A person does not become an owner or part owner of a

church, for example, to the construction of which he has made a donation; neither is he

responsible for the use to which said edifice may be applied. No one disputes the fact

that donations may be made for the public use, but they must be made to definite

persons or associations, to be administered in accordance with the purpose of the gift.

We can not believe, in the light of the whole record, that the defendants and appellants, at the

time they presented the defense that they were donors simply and not owners, had a reasonable

hope that their declarations as to said donation, given in the manner alleged, would be

believed by the court.

After a careful examination of the evidence brought to this court and taking into

consideration the failure of the other defendants to testify, we are of the opinion that a

preponderance of such evidence shows that the defendants, Martin Ocampo, Manuel

Palma, Arcadio Arellano, Angel Jose, Galo Lichauco, Felipe Barretto, and Gregorio M.

Cansipit, were the coowners of the newspaper known as "El Renacimiento," at the time

of the publication of the said alleged libel.

With reference to the sixth assignment of error above noted, to wit: That the lower court

committed an error in not admitting in evidence the judgment of acquittal of the

defendant, Lope K. Santos, rendered in the criminal cause, we are of the opinion that

the refusal to admit said evidence in the civil cause was not an error. The fact that the

evidence in the criminal cause was insufficient to show that Lope K. Santos was guilty

of the crime charged, in no way barred the right of the person injured by said alleged

libel to maintain the present civil action against him. (Ocampo vs. Jenkins, 14 Phil. Rep.,

681.) The criminal action had to be sustained by evidence showing the culpability of the

defendant beyond a reasonable doubt, while in the civil action it is sufficient to show

that the defendants injured the plaintiff by the alleged libelous publication, by a

preponderance of the evidence only. (Greenleaf on Evidence, sec. 426; Cooley on Torts,

208; Reilley vs. Norton, 65 Iowa, 306; Sloane vs. Gilbert, 23 Am. Dec., 708.)

In the case of Steel vs. Cazeaux (8 Martin, La., 318; 13 American Decisions, 288), the

supreme court of Louisiana said:

A judgment of conviction in a criminal prosecution can not be given in evidence

in a civil action.

In the case of Betts et al. vs. New Hartford (25 Conn., 180) Mr. Justice Ellsworth said (in a

case where a judgment in a criminal case was offered in evidence):

A conviction in a criminal case is not evidence of facts upon which the judgment

was rendered, when those facts come up in a civil case, for this evidence would

not be material; and so the law is perfectly well settled. (1 Greenleaf on Evidence,

secs. 536, 524; 1 Phillips on Evidence, 231; Hutchinson vs. Bank of Wheeling, 41

Pa. St., 42; Beausoleil vs. Brown, 12 La. Ann., 543; McDonald vs. Stark, 176 Ill.,

456, 468.)

While we believe that the lower court committed no error in refusing to admit the

sentence acquitting Lope K. Santos in the criminal case, we are of the opinion, after a

careful examination of the record brought to this court, that it is insufficient to show

that Lope K. Santos was responsible, in any way, for the publication of the alleged libel,

and without discussing the question whether or not the so-called Tagalog edition of "El

Renacimiento" and "El Renacimiento" constituted one and the same newspaper, we find

that the evidence is insufficient to show that Lope K. Santos is responsible in damages,

in any way, for the publication of the said alleged libel.

The appellants discussed the eight and ninth assignments of error together, and claim

that the lower court committed an error in rendering a judgment jointly and

severally against the defendants and in allowing an execution against the individual

property of said owners, and cite provisions of the Civil and Commercial Codes in

support of their contention. The difficulty in the contention of the appellants is that they

fail to recognize that the basis of the present action is a tort. They fail to recognize the

universal doctrine that each joint tort feasor is not only individually liable for the tort in

which he participates, but is also jointly liable with his tort feasors. The defendants

might have been sued separately for the commission of the tort. They might have been

sued jointly and severally, as they were. (Nicoll vs. Glennie, 1 M. & S. (English Common

Law Reports), 558.) If several persons jointly commit a tort, the plaintiff or person

injured, has his election to sue all or some of the parties jointly, or one of them

separately, because the tort is in its nature a separate act of each individual. (1 Chiddey,

Common Law Pleadings, 86.) It is not necessary that the cooperation should be a direct,

corporeal act, for, to give an example, in a case of assault and battery committed by

various persons, under the common law all are principals. So also is the person who

counsels, aids or assists in any way he commission of a wrong. Under the common law,

he who aided or assisted or counseled, in any way, the commission of a crime, was as

much a principal as he who inflicted or committed the actual tort. (Page vs. Freeman, 19

Mo., 421.)

It may be stated as a general rule, that the joint tort feasors are all the persons who

command, instigate, promote, encourage, advise, countenance, cooperate in, aid or abet

the commission of a tort, or who approve of it after it is done, if done for their benefit.

They are each liable as principals, to the same extent and in the same manner as if they

had performed the wrongful act themselves. (Cooley on Torts, 133; Moir vs. Hopkins, 16

Ill., 313 (63 Am. Dec., 312 and note); Berry vs. Fletch, 1st Dill., 67; Smithwick vs. Ward, 7

Jones L. 64; Smith vs. Felt, 50 Barb. (N. Y.), 612; Shepard vs. McQuilkin, 2 W. Va., 90;

Lewis vs. Johns, 34 Cal., 269.)

Joint tort feasors are jointly and severally liable for the tort which they commit. The

person injured may sue all of them, or any number less than all. Each is liable for the

whole damage caused by all, and all together are jointly liable for the whole damage. It

is no defense for one sued alone, that the others who participated in the wrongful act

are not joined with him as defendants; nor is it any excuse for him that his participation

in the tort was insignificant as compared with that of the others.

(Forebrother vs. Ansley, 1 Campbell (English Reports), 343; Pitcher vs. Bailey, 8 East,

171; Booth vs. Hodgson, 6 Term Reports, 405; Vose vs. Grant, 15 Mass., 505;

Acheson vs. Miller, 18 Ohio, 1; Wallace vs. Miller, 15 La. Ann., 449; Murphy vs. Wilson,

44 Mo., 313; Bishop vs. Ealey, 9 Johnson (N. Y.), 294.)

Joint tort feasors are not liable pro rata. The damages can not be apportioned among

them, except among themselves. They can no insist upon an apportionment, for the

purpose of each paying an aliquot part. They are jointly and severally liable for the full

amount. (Pardrige vs. Brady, 7 Ill. App., 639; Carney vs. Read, 11 Ind., 417; Lee vs. Black,

27 Ark., 337; Bevins vs. McElroy, 52 Am. Dec., 258.)

A payment in full of the damage done, by one of the joint tort feasors, of course satisfies

any claim which might exist against the others. There can be but one satisfaction. The

release of one of the joint tort feasors by agreement, generally operates to discharge all.

(Wright vs. Lathrop, 2 Ohio, 33; Livingston vs. Bishop, 1 Johnson (N.Y.), 290;

Brown vs. Marsh, 7 Vt., 327; Ayer vs. Ashmead, 31 Conn., 447; Eastman vs. Grant, 34 Vt.,

387; Turner vs.Hitchcock, 20 Iowa, 310; Ellis vs. Esson, 50 Wis., 149.)

Of course the courts during the trial may find that some of the alleged joint tort feasors

are liable and that others are not liable. The courts may release some for lack of

evidence while condemning others of the alleged tort feasors. And this is true even

though they are charged jointly and severally. (Lansing vs. Montgomery, 2 Johnson (N.

Y.), 382; Drake vs. Barrymore, 14 Johnson, 166; Owens vs. Derby, 3 Ill., 126.)

This same principle is recognized by Act 277 of the Philippine Commission. Section 6

provides that:

Every author, editor or proprietor . . . is chargeable with the publication of any

words in any part . . . or number of each newspaper, as fully as if he were the

author of the same.

In our opinion the lower court committed no error in rendering a joint and several

judgment against the defendants and allowing an execution against their individual

property. The provisions of the Civil and Commercial Codes cited by the defendants

and appellants have no application whatever to the question presented in the present

case.

The tenth assignment of error above noted relates solely to the amount of damages

suffered on account of wounded feelings, mental suffering and injury to the good name

and reputation of Mr. Worcester, by reason of the alleged libelous publication. The

lower court found that the damages thus suffered by Mr. Worcester amounted to

P35,000. This assignment of error presents a most difficult question. The amount of

damages resulting from a libelous publication to a man's good name and reputation is

difficult of ascertainment. It is nor difficult to realize that the damage thus done is great

and almost immeasurable. The specific amount the damages to be awarded must

depend upon the facts in each case and the sound discretion of the court. No fixed or

precise rules can be laid down governing the amount of damages in cases of libel. It is

difficult to include all of the facts and conditions which enter into the measure of such

damages. A man's good name and reputation are worth more to him than all the wealth which

he can accumulate during a lifetime of industrious labor. To have them destroyed may be

eminently of more damage to him personally than the destruction of his physical wealth. The

loss is immeasurable. No amount of money can compensate him for his loss.

Notwithstanding the great loss which he, from his standpoint, sustains, the courts must

have some tangible basis upon which to estimate such damages.

In discussing the elements of damages in a case of libel, the Honorable James C. Jenkins,

who tried the present case in the court below, correctly said that, "The enjoyment of a

private reputation is as much a constitutional right as the possession of life, liberty or property.

It is one of those rights necessary to human society, that underlie the whole scheme of

human civilization. The respect and esteem of his fellows are among the highest

rewards of a wellspent life vouchsafed to man in this existence. The hope of it is the

inspiration of youth and its possession is a solace in later years. A man of affairs, a

business man, who has been seen known by his fellowmen in the active pursuits of life

for many years, and who has developed a great character and an unblemished

reputation, has secured a possession more useful and more valuable than lands or

houses or silver or gold. The law recognizes the value of such a reputation and

constantly strives to give redress for its injury. It imposes upon him who attacks it by

slanderous words or libelous publications, the liability to make full compensation for

the damage to the reputation, for the shame, obloquy and for the injury to the feelings

of its owner, which are caused by the publication of the slander or libel. The law goes

further. If the words are spoken or the publication is made with the intent to injure the

victim or with criminal indifference to civil obligation, it imposes such damages as the

jury, in view of all the circumstances of the particular case, adjudge that the wrongdoer

ought to pay as an example to the public and to deter others from doing likewise, and

for punishment for the infliction of the injury."

As was said above, the damages suffered by Mr. Worcester to his good name and

reputation are most difficult of ascertainment. The attorney for the appellants, in his

brief, lends the court but little assistance in reaching a conclusion upon this question.

The appellants leaves the whole question to the discretion of the court, without any

argument whatever.

After a careful examination, we are of the opinion that part of the judgment of the lower

court relating to the damages suffered by the Honorable Dean C. Worcester, should be

modified, and that a judgment should be rendered in favor of Mr. Dean C. Worcester

and against the defendants, jointly and severally, for the sum of P15,000, with interest at

6 per cent from the 23d of January, 1909.

With reference to the eleventh assignment of error above noted, to wit: That the court

erred in imposing punitive damages upon the defendants, we are of the opinion, after a

careful examination of the evidence, and in view of all of the facts and circumstances

and the malice connected with the publication of said editorial and the subsequent

publications with relation to said editorial, that the lower court, by virtue of the

provisions of Act No. 277 of the Philippine Commission, was justified in imposing

punitive damages upon the defendants.

Section 11 of Act No. 277 allows the court, in an action for libel, to render a judgment

for punitive damages, in an amount which the court may think will be a just

punishment to the libeler and an example to others.

Exemplary damages in civil actions for libel may always be recovered if the defendant

or defendants are actuated by malice. In the present case there was not the slightest

effort on the part of the defendants to show the existence of probable cause or

foundation whatever for the facts contained in said editorial. Malice, hatred, and ill will

against the plaintiff are seen throughout the record. The said editorial not only

attempted to paint the plaintiff as a villain, but upon every occasion, the defendants

resorted to ridicule of the severest kind.

Here again we find difficulty in arriving at a conclusion relating to the damages which

should be imposed upon the defendants for the purpose of punishment. Upon this

question the courts must be governed in each case by the evidence, the circumstances

and their sound discretion. Taking into consideration the fact that some of the

defendants have been prosecuted criminally and have been sentenced, and considering

that fact as a part of the punitive damages, we have arrived at the conclusion that the

judgment of the lower court should be modified, and that a judgment should be

rendered against the defendants, jointly and severally, and in favor of the plaintiff, the

Honorable Dean C. Worcester, in the sum of P10,000, as punitive damages, with interest

at 6 per cent from the 23d day of January, 1909.

Therefore, after a full consideration of all the facts contained in the record and the errors

assigned by the appellants in this court, we are of the opinion that the judgment of the

lower court should be modified and that a judgment should be rendered in favor of

Dean C. Worcester and against the defendants Martin Ocampo, Teodoro M. Kalaw,

Manuel Palma, Arcadio Arellano, Angel Jose, Galo Lichauco, Felipe Barretto, and

Gregorio M. Cansipit, jointly and severally, for the sum of P25,000 with interest at 6 per

cent from the 23d of January, 1909, with costs, and that a judgment should be entered

absolving Lope K. Santos from any liability under said complaint. So ordered.

J. H. CHAPMAN, plaintiff-appellant,

vs.

JAMES M. UNDERWOOD, defendant-appellee.

Wolfson & Wolfson for appellant.

Bruce, Lawrence, Ross & Block for appellee.

MORELAND, J.:

At the time the accident occurred, which is the basis of this action, there was a single-

track street-car line running along Calle Herran, with occasional switches to allow cars

to meet and pass each other. One of these switches was located at the scene of the

accident.

The plaintiff had been visiting his friend, a man by the name of Creveling, in front of

whose house the accident happened. He desired to board a certain "San Marcelino" car

coming from Santa Ana and bound for Manila. Being told by Creveling that the car was

approaching, he immediately, and somewhat hurriedly, passed from the gate into the

street for the purpose of signaling and boarding the car. The car was a closed one, the

entrance being from the front or the rear flatform. Plaintiff attempted to board the front

platform but, seeing that he could not reached it without extra exertion, stopped beside

the car, facing toward the rear platform, and waited for it to come abreast of him in

order to board. While in this position he was struck from behind and run over by the

defendant's automobile.

The defendant entered Calle Herran at Calle Peñafrancia in his automobile driven by

his chauffeur, a competent driver. A street car bound from Manila to Santa Ana being

immediately in front of him, he followed along behind it. Just before reaching the scene

of the accident the street car which was following took the switch — that is, went off the

main line to the left upon the switch lying alongside of the main track. Thereupon the

defendant no longer followed that the street car nor went to the left, but either kept

straight ahead on the main street-car track or a bit to the right. The car which the

plaintiff intended to board was on the main line and bound in an opposite direction to

that in which the defendant was going. When the front of the "San Marcelino" car, the

one the plaintiff attempted to board, was almost in front of the defendant's automobile,

defendant's driver suddenly went to the right and struck and ran over the plaintiff, as

above described.

The judgment of the trial court was for defendant.

A careful examination of the record leads us to the conclusion that the defendant's

driver was guilty of negligence in running upon and over the plaintiff. He was passing

an oncoming car upon the wrong side. The plaintiff, in common out to board the car,

was not obliged, for his own protection, to observe whether a car was coming upon him

from his left hand. He had only to guard against those coming from the right. He knew

that, according to the law of the road, no automobile or other vehicle coming from his

left should pass upon his side of the car. He needed only to watch for cars coming from

his right, as they were the only ones under the law permitted to pass upon that side of

the street car.

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 persons 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 act 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 cease therefrom, becomes himself responsible for such acts. The owner of an

automobile who permits his chauffeur to drive up to 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 acts 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 a 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 give the defendant an opportunity to 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 small as not to be

sufficient to charge defendant with the negligence of the driver.

Whether or not the owner of an automobile driven by a competent driver, would be

responsible, whether present or not, for the negligent acts of his driver when the

automobile was a part of a business enterprise, and was being driven at the time of the

accident in furtherance of the owner's business, we do not now decide.

The judgment appealed from is affirmed, with costs against the appellant.

MARCIAL T. CAEDO, JUANA SANGALANG CAEDO, and the Minors, EPHRAIM

CAEDO, EILEEN CAEDO, ROSE ELAINE CAEDO, suing through their father,

MARCIAL T. CAEDO, as guardian ad litem, plaintiffs-appellants,

vs.

YU KHE THAI and RAFAEL BERNARDO, defendants-appellants.

Norberto J. Quisumbing for plaintiffs-appellants.

De Joya, Lopez, Dimaguila, Hermoso and Divino for defendants-appellants

MAKALINTAL, J.:

As a result of a vehicular accident in which plaintiff Marcial Caedo and several

members of his family were injured they filed this suit for recovery of damages from the

defendants. The judgment, rendered by the Court of First Instance of Rizal on February

26, 1960 (Q-2952), contains the following disposition:

IN VIEW OF THE FOREGOING, the court renders a judgment, one in favor of

the plaintiffs and against the defendants, Yu Khe Thai and Rafael Bernardo,

jointly and severally, to pay to plaintiffs Marcial Caedo, et al., the sum of

P1,929.70 for actual damages; P48,000.00 for moral damages; P10,000.00 for

exemplary damages; and P5,000.00 for attorney's fees, with costs against the

defendants. The counterclaim of the defendants against the plaintiffs is hereby

ordered dismissed, for lack of merits.

On March 12, 1960 the judgment was amended so as to include an additional award of

P3,705.11 in favor of the plaintiffs for the damage sustained by their car in the accident.

Both parties appealed to the Court of Appeals, which certified the case to us in view of

the total amount of the plaintiffs' claim.

There are two principal questions posed for resolution: (1) who was responsible for the

accident? and (2) if it was defendant Rafael Bernardo, was his employer, defendant Yu

Khe Thai, solidarily liable with him? On the first question the trial court found Rafael

Bernardo negligent; and on the second, held his employer solidarily liable with him.

The mishap occurred at about 5:30 in the morning of March 24, 1958 on Highway 54

(now E. de los Santos Avenue) in the vicinity of San Lorenzo Village. Marcial was

driving his Mercury car on his way from his home in Quezon City to the airport, where

his son Ephraim was scheduled to take a plane for Mindoro. With them in the car were

Mrs. Caedo and three daughters. Coming from the opposite direction was the Cadillac

of Yu Khe Thai, with his driver Rafael Bernardo at the wheel, taking the owner from his

Parañaque home to Wack Wack for his regular round of golf. The two cars were

traveling at fairly moderate speeds, considering the condition of the road and the

absence of traffic — the Mercury at 40 to 50 kilometers per hour, and the Cadillac at

approximately 30 to 35 miles (48 to 56 kilometers). Their headlights were mutually

noticeable from a distance. Ahead of the Cadillac, going in the same direction, was

a caretella owned by a certain Pedro Bautista. The carretela was towing another horse by

means of a short rope coiled around the rig's vertical post on the right side and held at

the other end by Pedro's son, Julian Bautista.

Rafael Bernardo testified that he was almost upon the rig when he saw it in front of

him, only eight meters away. This is the first clear indication of his negligence.

The carretela was provided with two lights, one on each side, and they should have

given him sufficient warning to take the necessary precautions. And even if he did not

notice the lights, as he claimed later on at the trial, the carretela should anyway have

been visible to him from afar if he had been careful, as it must have been in the beam of

his headlights for a considerable while.

In the meantime the Mercury was coming on its own lane from the opposite direction.

Bernardo, instead of slowing down or stopping altogether behind the carretela until that

lane was clear, veered to the left in order to pass. As he did so the curved end of his

car's right rear bumper caught the forward rim of the rig's left wheel, wrenching it off

and carrying it along as the car skidded obliquely to the other lane, where it collided

with the oncoming vehicle. On his part Caedo had seen the Cadillac on its own lane; he

slackened his speed, judged the distances in relation to thecarretela and concluded that

the Cadillac would wait behind. Bernardo, however, decided to take a gamble — beat

the Mercury to the point where it would be in line with the carretela, or else squeeze in

between them in any case. It was a risky maneuver either way, and the risk should have

been quite obvious. Or, since the car was moving at from 30 to 35 miles per hour (or 25

miles according to Yu Khe Thai) it was already too late to apply the brakes when

Bernardo saw the carretela only eight meters in front of him, and so he had to swerve to

the left in spite of the presence of the oncoming car on the opposite lane. As it was, the

clearance Bernardo gave for his car's right side was insufficient. Its rear bumper, as

already stated, caught the wheel of the carretela and wrenched it loose. Caedo,

confronted with the unexpected situation, tried to avoid the collision at the last moment

by going farther to the right, but was unsuccessful. The photographs taken at the scene

show that the right wheels of his car were on the unpaved shoulder of the road at the

moment of impact.

There is no doubt at all that the collision was directly traceable to Rafael Bernardo's

negligence and that he must be held liable for the damages suffered by the plaintiffs.

The next question is whether or not Yu Khe Thai, as owner of the Cadillac, is solidarily

liable with the driver. The applicable law is Article 2184 of the Civil Code, which reads:

ART. 2184. In motor vehicle mishaps, the owner is solidarily liable with his

driver, if the former, who was in the vehicle, could have, by the use of due

diligence, prevented the misfortune. It is disputably presumed that a driver was

negligent, if he had been found guilty of reckless driving or violating traffic

regulations at least twice within the next preceding two months.

Under the foregoing provision, if the causative factor was the driver's negligence, the

owner of the vehicle who was present is likewise held liable if he could have prevented

the mishap by the exercise of due diligence. The rule is not new, although formulated as

law for the first time in the new Civil Code. It was expressed in Chapman vs.

Underwood (1914), 27 Phil. 374, where this Court held:

... 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 cease therefrom, 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 the 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 act his own.

The basis of the master's liability in civil law is not respondent superior but rather the

relationship of paterfamilias. The theory is that ultimately the negligence of the servant, if

known to the master and susceptible of timely correction by him, reflects his own

negligence if he fails to correct it in order to prevent injury or damage.

In the present case the defendants' evidence is that Rafael Bernardo had been Yu Khe

Thai's driver since 1937, and before that had been employed by Yutivo Sons Hardware

Co. in the same capacity for over ten years. During that time he had no record of

violation of traffic laws and regulations. No negligence for having employed him at all

may be imputed to his master. Negligence on the part of the latter, if any, must be

sought in the immediate setting and circumstances of the accident, that is, in his failure

to detain the driver from pursuing a course which not only gave him clear notice of the

danger but also sufficient time to act upon it. We do not see that such negligence may

be imputed. The car, as has been stated, was not running at an unreasonable speed. The

road was wide and open, and devoid of traffic that early morning. There was no reason

for the car owner to be in any special state of alert. He had reason to rely on the skill

and experience of his driver. He became aware of the presence of the carretela when his

car was only twelve meters behind it, but then his failure to see it earlier did not

constitute negligence, for he was not himself at the wheel. And even when he did see it

at that distance, he could not have anticipated his driver's sudden decision to pass

the carretela on its left side in spite of the fact that another car was approaching from the

opposite direction. The time element was such that there was no reasonable

opportunity for Yu Khe Thai to assess the risks involved and warn the driver

accordingly. The thought that entered his mind, he said, was that if he sounded a

sudden warning it might only make the other man nervous and make the situation

worse. It was a thought that, wise or not, connotes no absence of that due diligence

required by law to prevent the misfortune.

The test of imputed negligence under Article 2184 of the Civil Code is, to a great degree,

necessarily subjective. Car owners are not held to a uniform and inflexible standard of

diligence as are professional drivers. In many cases they refrain from driving their own

cars and instead hire other persons to drive for them precisely because they are not

trained or endowed with sufficient discernment to know the rules of traffic or to

appreciate the relative dangers posed by the different situations that are continually

encountered on the road. What would be a negligent omission under aforesaid Article

on the part of a car owner who is in the prime of age and knows how to handle a motor

vehicle is not necessarily so on the part, say, of an old and infirm person who is not

similarly equipped.

The law does not require that a person must possess a certain measure of skill or

proficiency either in the mechanics of driving or in the observance of traffic rules before

he may own a motor vehicle. The test of his intelligence, within the meaning of Article

2184, is his omission to do that which the evidence of his own senses tells him he should

do in order to avoid the accident. And as far as perception is concerned, absent a

minimum level imposed by law, a maneuver that appears to be fraught with danger to

one passenger may appear to be entirely safe and commonplace to another. Were the

law to require a uniform standard of perceptiveness, employment of professional

drivers by car owners who, by their very inadequacies, have real need of drivers'

services, would be effectively proscribed.

We hold that the imputation of liability to Yu Khe Thai, solidarily with Rafael Bernardo,

is an error. The next question refers to the sums adjudged by the trial court as damages.

The award of P48,000 by way of moral damages is itemized as follows:

1. Marcial Caedo P 20,000.00

2. Juana S. Caedo 15,000.00

3. Ephraim Caedo 3,000.00

4. Eileen Caedo 4,000.00

5. Rose Elaine Caedo 3,000.00

6. Merilyn Caedo 3,000.00

Plaintiffs appealed from the award, claiming that the Court should have granted them

also actual or compensatory damages, aggregating P225,000, for the injuries they

sustained. Defendants, on the other hand maintain that the amounts awarded as moral

damages are excessive and should be reduced. We find no justification for either side.

The amount of actual damages suffered by the individual plaintiffs by reason of their

injuries, other than expenses for medical treatment, has not been shown by the

evidence. Actual damages, to be compensable, must be proven. Pain and suffering are

not capable of pecuniary estimation, and constitute a proper ground for granting moral,

not actual, damages, as provided in Article 2217 of the Civil Code.

The injuries sustained by plaintiffs are the following:

MARCIAL T. CAEDO:

A. Contusion, with hematoma, scalp, frontal left; abrasions, chest wall,

anterior;

B. Multiple fractures, ribs, right, lst to 5th inclusive. Third rib has a double

fracture; Subparieto-plaural hematoma; Basal disc atelectasis, lung, right

lower lobe, secondary;

C. Pseudotosis, left, secondary to probable basal fracture, skull.

JUANA SANGALANG CAEDO:

A. Abrasions, multiple:

(1)frontal region, left; (2) apex of nose; (3) upper eyelid, left; (4) knees.

B. Wound, lacerated, irregular, deep, frontal;

C. Fracture, simple, 2nd rib posterior, left with displacement.

D. Fracture, simple, base, proximal phalanx right, big toe.

E. Fracture, simple, base, metatarsals III and V right.

F. Concussion, cerebral.

EPHRAIM CAEDO:

A. Abrasions, multiple:

(1) left temporal area; (2) left frontal; (3) left supraorbital

EILEEN CAEDO:

A. Lacerated wound (V-shaped), base, 5th finger, right, lateral aspect.

B. Abrasions, multiple:

(1) dorsum, proximal phalanx middle finger; (2) Knee, anterior,

bilateral; (3) shin, lower 1/3.

ROSE ELAINE CAEDO:

A. Abrasions, multiple: (1) upper and lower lids; (2) left temporal; (3)

nasolabial region; (4) leg, lower third, anterior.

MARILYN CAEDO:

A. Abrasions, multiple: (1)shin, lower 1/3 right; (2) arm, lower third

C. Contusion with hematoma, shin, lower 1/3, anterior aspect, right. (See

Exhibits D, D-1, D-2, D-3, D-4, and D- 5)

It is our opinion that, considering the nature and extent of the above-mentioned

injuries, the amounts of moral damages granted by the trial court are not excessive.

WHEREFORE, the judgment appealed from is modified in the sense of declaring

defendant-appellant Yu Khe Thai free from liability, and is otherwise affirmed with

respect to defendant Rafael Bernardo, with costs against the latter.

Concepcion, C.J., Reyes, J.B.L., Dizon, Zaldivar, Sanchez, Castro and Capistrano, JJ., concur.

FELINA RODRIGUEZ-LUNA, JOSE R. LUNA and ROBERTO R. LUNA,

JR., petitioners,

vs.

THE HON. INTERMEDIATE APPELLATE COURT, JOSE E. DELA ROSA and LUIS

DELA ROSA, respondents.

Ezequiel S. Consulta for petitioners.

David M. Castro for respondents.

ABAD SANTOS, J.:

This is a petition to review a decision of the defunct Court of Appeals. The petitioners

are the heirs of Roberto R. Luna who was killed in a vehicular collision. The collision

took place on January 18, 1970, at the go-kart practice area in Greenhills, San Juan,

Metro Manila. Those involved were the go-kart driven by the deceased, a business

executive, and a Toyota car driven by Luis dela Rosa, a minor of 13 years who had no

driver's license.

In a suit for damages brought by the heirs of Roberto R. Luna against Luis dela Rosa

and his father Jose dela Rosa, the Court of First Instance of Manila in Civil Case No.

81078, rendered the following judgment:

WHEREFORE, judgment is hereby rendered sentencing the defendants

Luis dela Rosa and Jose dela Rosa to pay, jointly and severally, to the

plaintiffs the sum of P1,650,000.00 as unearned net earnings of Roberto

Luna, P12,000.00 as compensatory damages, and P50,000.00 for the loss of

his companionship, with legal interest from the date of this decision; plus

attorney's fees in the sum of P50,000.00, and the costs of suit. (Record on

Appeal, p. 35.)

The defendants appealed to the defunct Court of Appeals which in a decision dated

May 22, 1979, affirmed in totothat of the trial court. (Rollo, p. 48.) However, upon a

motion for reconsideration filed by the defendants-appellants, the Court of Appeals, in

a resolution dated June 19, 1981, modified its judgment thus:

WHEREFORE, the decision rendered in this case is hereby modified

insofar as the judgment ordering the defendants to pay, jointly and

severally, the sum of P 1,650,000.00 to plaintiffs with legal interest from

July 5, 1973, is concerned. In lieu thereof, defendants are hereby ordered

to pay plaintiffs, jointly and severally, the sum of Four Hundred Fifty

Thousand Pesos (P450,000.00) as unearned net earnings of Roberto R.

Luna, with legal interest thereon from the date of the filing of the

complaint until the whole amount shall have been totally paid.

The rest of the other dispositions in the judgment a quo stand. (Rollo, pp.

33-34.)

Both parties filed separate petitions for review of the appellate court's decision.

In G.R. No. 57362, the petition for review of Jose and Luis dela Rosa was denied for lack

of merit on October 5, 1981. Subsequently, they informed that the decision sought to be

reviewed was not yet final because the Lunas had a pending motion for

reconsideration. For prematurity, this Court set aside all previous resolutions. On

February 16, 1983, acting upon the motion and manifestation of the petitioners, they

were required to file an amended petition within thirty days from notice. On June 20,

1983, this Court resolved: "For failure of the petitioners to file an amended petition as

required, this case is hereby DISMISSED and the dismissal is final."

The instant case — G.R. No. 62988 — is the separate appeal of the Lunas. Their petition

contains the following prayer:

1. That the petition be given due course;

2. That after notice and hearing, judgment be rendered, setting aside or

modifying the RESOLUTION of respondent Court of Appeals dated June

19, 1981, attached as Annex "A" to the petition, only insofar as it reduced

the unearned net earnings to P450,000.00, s• as to affirm the trial court's

finding as to the unearned net earnings of the deceased in the amount of

P1,650,000.00;

3. Ordering that the award of attorney's fees shall also be with interest, at

the legal rate. (Rollo, p. 27.)

On June 27, 1983, the petition was given due course. (Rollo, pp. 122-123.)

In the light of the foregoing, the resolution stated:

It thus appears that the questions in esse are with respect to the award for

unearned net earnings — should the award be P450,000.00 only or should

it be P1,650,000.00 as originally adjudged; and whether the award for

attorney's fees shall also be with interest at the legal rate.

The Court takes notice that the wrongful death occurred as early as

January 18, 1970, and that until now the process of litigation is not yet

over. In the meantime the value of the Philippine peso has been seriously

eroded so that the heirs of the deceased may ultimately have a greatly

depreciated judgment. In the interest of justice, the private respondents

are hereby ordered to PAY to the petitioners within thirty (30) days from

notice the following amounts adjudged against them: P450,000.00 for

unearned net earnings of the deceased; (P12,000.00 as compensatory

damages; P50,000.00 for the loss of his companionship with legal interest

from July 3, 1973; and P50,000.00 as attorney's fees.

Still to be resolved shall be the following: whether the award for unearned

net earnings shall be increased to P1,650,000.00; and whether the award

for attorney's fees shall also be with interest at the legal rate. The costs will

be adjudged as a matter of course. (Rollo, p. 123.)

The private respondents failed to pay the amounts and when required to explain they

said that they had no cash money. Accordingly, this Court directed the trial court to

issue a writ of execution but the attempt of the special sheriff to enter the private

respondent's premises so that he could make an inventory of personal properties was

thwarted by guards and this Court had to direct the Chief of the Philippine

Constabulary to assist in enforcing the writ of execution. The execution yielded only a

nominal amount. In the meantime, Luis dela Rosa is now of age, married with two

children, and living in Madrid, Spain with an uncle but only casually employed. It is

said: "His compensation is hardly enough to support his family. He has no assets of his

own as yet." (Rollo, p. 208.)

1. On the amount of the award.

The award of P1,650,000.00 was based on two factors, namely: (a) that the deceased

Roberto R. Luna could have lived for 30 more years; and (b) that his annual net income

was P55,000.00, computed at P75,000.00 annual gross income less P20,000.00 annual

personal expenses.

This is what the trial court said on Luna's life expectancy:

According to the American Experience Table of Mortality, at age 33 the

life expectancy of Roberto Luna was 33.4 years, and under the

Commissioner Standard Ordinary, used by our domestic insurance

companies since 1968 for policies above P5,000.00 his life expectancy was

38.51 years. Dr. Vicente Campa, medical director of San Miguel

Corporation, testified that he was the regular physician of Roberto Luna

since his marriage to Felina Rodriguez in 1957. He said that except for a

slight anemia which he had ten years earlier, Roberto Luna was of good

health. Allowing for this condition, he could reasonably expect to have a

life expectancy of 30 years. (Record on Appeal, p. 33.)

The Court of Appeals in sustaining the trial court's conclusion said:

We have not been persuaded to disturb the conclusion that the deceased

had a life expectancy of thirty years. At the time of Luna's death, he was

only thirty-three years old and in the best of health. With his almost

perfect physical condition and his sound mind, the expectation that he

could have lived for another thirty years is reasonable, considering that

with his educational attainment, his social and financial standing, he had

the means of staying fit and preserving his health and well-being. That he

could have lived at least until the age of sixty-three years is an assessment

which is more on the conservative side in view of the testimony of Dr.

Vicente Campa that the general life expectancy nowadays had gone up to

seventy years. (Rollo, p. 45.)

The Court of Appeals likewise sustained the trial court in respect of Luna's annual

income and expense. This is what the trial court said:

Roberto Luna was 33 years old when he died, and was survived by his

wife Felina Rodriguez-Luna, and two children, Roberto Jr., 13 years, and

Jose, 12 years. His wife was 35 years old at the time. He declared a gross

income of P16,900.00 for 1967 (Exhibit I), P29,700,000 for 1968 (Exhibit H)

and P45,117.69 for 1969 (Exhibit G). He had investments in various

corporations amounting to P136,116.00 (Exhibits K, M, M-1, N, N-1 to N-3,

O, O-1, P, Q and R) and was the president and general manager of

Rodlum Inc.; general manager of Esso Greenhills Service Center; Assistant

manager of Jose Rodriguez Lanuza Sons; director of Steadfast Investment

Corporation; chairman and treasurer of Greenhills Industrial Corporation;

vice-president of Oasis, Inc.; director of Nation Savings Association;

director of Arlun Taxi; and treasurer of National Association of Retired

Civil Employees.

... . His income tax returns show an increase in his income in the short

period of three years. It is reasonable to expect that it would still go higher

for the next fifteen years and reach a minimum of P75,000.00 a year. The

potential increase in the earning capacity of a deceased person is

recognized by the Supreme Court. ... the court believes that the expected

gross earnings of Roberto Luna should be fixed in the sum of P75,000.00 a

year for the period of his life expectancy of 30 years, but deducting his

personal expenses which, because of his business and social standing the

court in the amount of P20,000.00 a year, in accordance with the rulings of

the Supreme Court. (Record on Appeal, pp. 32-34.)

Acting on a motion for reconsideration filed by the dela Rosas, the Court of Appeals

took into account the fact "that the deceased Roberto R. Luna had been engaged in car

racing as a sport, having participated in tournaments both here and abroad;" it said that

Luna's habit and manner of life should be "one of the factors affecting the value of

mortality table in actions for damages;" and, consequently, concluded that Luna could

not have lived beyond 43 years. The result was that the 30-year life expectancy of Luna

was reduced to 10 years only.

Further on the motion for reconsideration, the Court of Appeals ruled in respect of

Luna's annual personal expenses:

... . Considering the escalating price of automobile gas which is a key

expenditure in Roberto R. Luna's social standing, We should increase that

amount to P30,000.00 as the would be personal expenses of the deceased

per annum. (Rollo, p. 33.)

The Court of Appeals then determined the amount of the award thus: P75,000.00 annual

gross income less P30,000.00 annual personal expenses leaves P45,000.00 multiplied by

10 years of life expectancy and the product is P450,000.00.

The petitioners contend that the Court of Appeals erred when by its resolution of June

19, 1981, it reduced Luna's life expectancy from 30 to 10 Years and increased his annual

personal expenses from P20,000.00 to P30,000.00. We sustain the petitioners.

The Court of Appeals, in reducing Luna's life expectancy from 30 to 10 years said that

his habit and manner of life should be taken into account, i.e. that he had been engaged

in car racing as a sport both here and abroad - a dangerous and risky activity tending to

shorten his life expectancy. That Luna had engaged in car racing is not based on any

evidence on record. That Luna was engaged in go-kart racing is the correct statement

but then go-kart racing cannot be categorized as a dangerous sport for go-karts are

extremely low slung, low powered vehicles, only slightly larger than foot-pedalled four

wheeled conveyances. It was error on the part of the Court of Appeals to have

disturbed the determination of the trial court which it had previously affirmed.

Similarly, it was error for the Court of Appeals to reduce the net annual income of the

deceased by increasing his annual personal expenses but without at the same time

increasing his annual gross income. It stands to reason that if his annual personal

expenses should increase because of the "escalating price of gas which is a key

expenditure in Roberto R. Luna's social standing" [a statement which lacks complete

basis], it would not be unreasonable to suppose that his income would also increase

considering the manifold sources thereof.

In short, the Court of Appeals erred in modifying its original decision.

2. Attorney's fees — with or without interest at the legal rate.

The trial court awarded attorney's fees to the petitioners in the sum of P50,000.00. This

award was affirmed by the Court of Appeals in its decision of May 22, 1979. The

resolution of June 19, 1981, reaffirmed the award. The two decisions as well as the

resolution do not provide for interest at the legal rate to be tacked to the award.

The petitioners now pray that the award of attorney's fees be with interest at the legal

rate from the date of the filing of the complaint. There is merit in this prayer. The

attorney's fees were awarded in the concept of damages in a quasi-delict case and under

the circumstances interest as part thereof may be adjudicated at the discretion of the

court. (See Art. 2211, Civil Code.) As with the other damages awarded, the interest

should accrue only from the date of the trial court's decision.

The private respondents invoke Elcano vs. Hill, L-24803, May 26,1977; 77 SCRA 98,

where it was held that Article 2180 of the Civil Code applied to Atty. Marvin Hill

notwithstanding the emancipation by marriage of Reginald Hill, his son but since

Reginald had attained age, as a matter of equity, the liability of Atty. Hill had become

merely subsidiary to that of his son. It is now said that Luis dela Rosa, is now married

and of legal age and that as a matter of equity the liability of his father should be

subsidiary only.

We are unwilling to apply equity instead of strict law in this case because to do so will

not serve the ends of justice. Luis dela Rosa is abroad and beyond the reach of

Philippine courts. Moreover, he does not have any property either in the Philippines or

elsewhere. In fact his earnings are insufficient to support his family.

WHEREFORE, the resolution of the Court of Appeals dated June 19, 1981, is hereby set

aside; its decision dated May 22, 1979, is reinstated with the sole modification that the

award for attorney's fees shall earn interest at the legal rate from July 5, 1973, the date of

the trial court's decision. Costs against the private respondents.

SO ORDERED.

Aquino, Concepcion, Jr., Gutierrez, Jr. and De la Fuente, * JJ., concur.

Makasiar (Chairman), J., I reserve my vote.

SABINA EXCONDE, plaintiff-appellant,

vs.

DELFIN CAPUNO and DANTE CAPUNO, defendants-appellees.

Magno T. Bueser for appellant.

Alver Law Offices and Edon B. Brion and Vencedor A. Alimario for appellees.

BAUTISTA ANGELO, J.:

Dante Capuno, son of Delfin Capuno, was accused of double homicide through reckless

imprudence for the death of Isidoro Caperina and Amado Ticzon on March 31, 1949 in

the Court of First Instance of Laguna (Criminal Case No. 15001). During the trial, Sabina

Exconde, as mother of the deceased Isidoro Caperina, reserved her right to bring a

separate civil action for damages against the accused. After trial, Dante Capuno was

found guilty of the crime charged and, on appeal, the Court Appeals affirmed the

decision. Dante Capuno was only (15) years old when he committed the crime.

In line with her reservation, Sabina Exconde filed the present action against Delfin

Capuno and his son Dante Capuno asking for damages in the aggregate amount of

P2,959.00 for the death of her son Isidoro Caperiña. Defendants set up the defense that

if any one should be held liable for the death of Isidoro Caperina, he is Dante Capuno

and not his father Delfin because at the time of the accident, the former was not under

the control, supervision and custody, of the latter. This defense was sustained by the

lower court and, as a consequence it only convicted Dante Capuno to pay the damages

claimed in the complaint. From decision, plaintiff appealed to the Court of Appeals but

the case was certified to us on the ground that the appeal only involves questions of

law.

It appears that Dante Capuno was a member of the Boy Scouts Organization and a

student of the Bilintawak Elementary School situated in a barrio in the City of San Pablo

and on March 31, 1949 he attended a parade in honor of Dr. Jose Rizal in said city upon

instruction of the city school's supervisor. From the school Dante, with other students,

boarded a jeep and when the same started to run, he took hold of the wheel and drove it

while the driver sat on his left side. They have not gone far when the jeep turned turtle

and two of its passengers, Amado Ticzon and Isidore Caperiña, died as a consequence.

It further appears that Delfin Capuno, father of Dante, was not with his son at the time

of the accident, nor did he know that his son was going to attend a parade. He only

came to know it when his son told him after the accident that he attended the parade

upon instruction of his teacher.

The only issue involved in this appeal is whether defendant Delfin Capuno can be held

civilly liable, jointly and severally with his son Dante, for damages resulting from the

death of Isidoro Caperiña caused by the negligent act of minor Dante Capuno.

The case comes under Article 1903 of the Spanish Civil Code, paragraph 1 and 5, which

provides:

ART. 1903. The obligation impossed by the next preceding articles is enforceable

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.

x x x x x x x x x

Finally, teachers or directors of arts and trades are liable for any damages caused

by their pupils or apprentices while they are under their custody.

Plaintiff contends that defendant Delfin Capuno is liable for the damages in question

jointly and severally with his son Dante because at the time the latter committed the

negligent act which resulted in the death of the victim, he was a minor and was then

living with his father, and inasmuch as these facts are not disputed, the civil liability of

the father is evident. And so, plaintiff contends, the lower court erred in relieving the

father from liability.

We find merit in this claim. It is true that under the law above quoted, "teachers or

directors of arts and trades are liable for any damages caused by their pupils or

apprentices while they are under their custody", but this provision only applies to an

institution of arts and trades and not to any academic educational institution (Padilla,

Civil Law, 1953, Ed., Vol. IV, p. 841; See 12 Manresa, 4th Ed., p. 557). Here Dante

capuno was then a student of the Balintawak Elementary School and as part of his

extra-curricular activity, he attended the parade in honor of Dr. Jose Rizal upon

instruction of the city school's supervisor. And it was in connection with that parade

that Dante boarded a jeep with some companions and while driving it, the accident

occurred. In the circumstances, it is clear that neither the head of that school, nor the

city school's supervisor, could be held liable for the negligent act of Dante because he

was not then a student of an institute of arts and trades as provided by law.

The civil liability which the law impose upon the father, and, in case of his death or

incapacity, the mother, for any damages that may be caused by the minor children who

live with them, is obvious. This is necessary consequence of the parental authority they

exercise over them which imposes upon the parents the "duty of supporting them,

keeping them in their company, educating them and instructing them in proportion to

their means", while, on the other hand, gives them the "right to correct and punish them

in moderation" (Articles 154 and 155, Spanish Civil Code). The only way by which they

can relieve themselves of this liability is if they prove that they exercised all the

diligence of a good father of a family to prevent the damage(Article 1903, last

paragraph, Spanish Civil Code). This defendants failed to prove.

WHEREFORE, the decision appealed from is modified in the sense that defendants

Delfin Capuno and Dante Capuno shall pay to plaintiff, jointly and severally, the sum

of P2,959.00 as damages, and the costs of action.

Bengzon, Montemayor, Labrador and Endencia, JJ., concur.

Paras, C.J., concurs in the result.

Separate Opinions

REYES, J.B.L., J., dissenting:

After mature consideration I believe we should affirm the judgement relieving the

father of liability. I can see no sound reason for limiting Art. 1903 of the old Civil Code

to teachers of arts and trades and not to academic ones. What substantial difference is

there between them in so far as, concerns the proper supervision and vigilance over

their pupils? It cannot be seriously contended that an academic teacher is exempt from

the duty of watching do not commit a tort to the detriment of third persons, so long as

they are in a position to exercise authority and supervision over the pupil. In my

opinion, in the phrase "teachers or heads of establishments of arts and trades" used in

Art. 1903 of the old Civil Code, the words "arts and trades" does not qualify "teachers"

but only "heads of establishments". The phrase is only an updated version of the

equivalent terms "preceptors y artesanos" used in the Italian and French Civil Codes.

If, as conceded by all commentators, the basis of the presumption of negligence of Art.

1903 in some culpa in vigilando that the parents, teachers, etc. are supposed to have

incurred in the exercise of their authority, it would seem clear that where the parent

places the child under the effective authority of the teacher, the latter, and not the

parent, should be the one answerable for the torts committed while under his custody,

for the very reason that the parent is not supposed to interfere with the discipline of the

school nor with the authority and supervision of the teacher while the child is under

instruction. And if there is no authority, there can be no responsibility.

In the case before us, there is no question that the pupil, Dante Capuno, was instructed

by the City School Supervisor to attend the Rizal parade. His father could not properly

refuse to allow the child to attend, in defiance of the school authorities. The father had

every reason to assume that in ordering a minor to attend a parade with other children,

the school authorities would provide adequate supervision over them. If a teacher or

scout master was present, then he should be the one responsible for allowing the minor

to drive the jeep without being qualified to do so. On the other hand, if no teacher or

master was at hand to watch over the pupils, the school authorities are the ones

answerable for that negligence, and not the father.

At any rate, I submit that the father should not be held liable for a tort that he was in no

way able to prevent, and which he had every right to assume the school authorities

would avoid. Having proved that he trusted his child to the custody of school

authorities that were competent to exercise vigilance over him, the father has rebutted

the presumption of Art. 1903 and the burden of proof shifted to the claimant to show

actual negligence on the part of the parent in order to render him liable.

Padilla and Reyes, A., JJ., concur.

SEVERINO SALEN and ELENA SALBANERA, plaintiffs-appellants,

vs.

JOSE BALCE, defendant-appellee.

Marciano C. Dating, Jr. for appellants.

Severino Balce for appellee.

BAUTISTA ANGELO, J.:

On February 5, 1957, plaintiffs brought this action against defendant before the Court of

First Instance of Camarines Norte to recover the sum of P2,000.00, with legal interest

thereon from July 18, 1952, plus attorney' fees and other incidental expenses.

Defendant, in his answer, set up the defense that the law upon which plaintiffs

predicate their right to recover does not here apply for the reason that law refers to

quasi-delicts and not to criminal cases.

After trial, the court sustained the theory of defendant and dismissed the complaint

with costs. Hence the present appeal.

Plaintiffs are the legitimate parents of Carlos Salen who died single from wounds

caused by Gumersindo Balce, a legitimate son of defendant. At the time, Gumersindo

Balce was also Single, a minor below 18 years of age, and was living with defendant. As

a result of Carlos Salen's death, Gumersindo Balce accused and convicted of homicide

and was sentenced to imprisonment and to pay the heirs of the deceased an indemnity

in the amount of P2,000.00. Upon petition of plaintiff, the only heirs of the deceased, a

writ of execution was issued for the payment of the indemnity but it was returned

unsatisfied because Gumersindo Balce was insolvent and had no property in his name.

Thereupon, plaintiffs demanded upon defendant, father of Gumersindo, the payment of

the indemnity the latter has failed to pay, but defendant refused, thus causing plaintiffs

to institute the present action.

The question for determination is whether appellee can be held subsidiary liable to pay

the indemnity of P2,000.00 which his son was sentenced to pay in the criminal case filed

against him.

In holding that the civil liability of the son of appellee arises from his criminal liability

and, therefore, the subsidiary liability of appellee must be determined under the

provisions of the Revised Penal Code, and not under Article 2180 of the new Civil Code

which only applies to obligations which arise from quasi-delicts, the trial court made

the following observation:

The law provides that a person criminally liable for a felony is also civilly liable

(Art. 100 of the Revised Penal Code). But there is no law which holds the father

either primarily or subsidiarily liable for the civiliability inccured by the son who

is a minor of 8 years. Under Art. 101 of the Penal Code, the father is civilly liable

for the acts committed by his son if the latter is an imbecile, or insane, or under 9

years of age or over 9 but under 15, who has acted without discernment. Under

Art. 102, only in keepers and tavern-keepers are held subsidiarily liable and

under Art. 103 of the same Penal Code, the subsidiary liability established in Art.

102 shall apply only 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." By the

principle of exclusio unus exclusio ulterius, the defendant in this case cannot be

held subsidiary liable for the civil liability of Gumersindo Balce who has been

convicted of homicide for the killing of the plaintiff's son Carlos Salen.

Art. 2180 of the Civil Code, relied by the plaintiff's, is not applicable to the case at

bar. It applies to obligations which arise from quasi-delicts and not obligations

which arise from criminal offenses. Civil liability arising from criminal

negligence or offenses is governed by the provisions of the Penal Code and civil

liability arising from civil negligence is governed by the provision of the Civil

Code. The obligation imposed by Art. 2176 of the New Civil Code expressly

refers to obligations which arise from quasi-delicts. And obligations arising from

quasi-delict (Commissioner's note). And according to Art. 2177, the

'responsibility for fault of negligence under Art. 2176 is entirely separate and

distinct from the civil liabilty arising from negligence under the Penal Code. . . .

While we agree with the theory that, as a rule, the civil liability arising from a crime

shall be governed by the provisions of the Revised Penal Code, we disagree with the

contention that the subsidiary liability of persons for acts of those who are under their

custody should likewise be governed by the same Code even in the absence of any

provision governing the case, for that would leave the transgression of certain right

without any punishment or sanction in the law. Such would be the case if we would

uphold the theory of appellee as sustained by the trial court.

It is true that under Article 101 of the Revised Penal Code, a father is made civilly liable

for the acts committed by his son only if the latter is an imbecile, an insane, under 9

years of age, over 9 but under 15 years of age, who act without discernment, unless it

appears that there is no fault or negligence on his part. This is because a son who

commits the act under any of those conditions is by law exempt from criminal liability

(Article 12, subdivisions 1, 2 and 3, Revised Penal Code). The idea is not to leave the act

entirely unpunished but to attach certain civil liability to the person who has the

deliquent minor under his legal authority or control. But a minor over 15 who acts with

discernment is not exempt from criminal liability, for which reason the Code is silent as

to the subsidiary liability of his parents should he stand convicted. In that case, resort

should be had to the general law which is our Civil Code.

The particular law that governs this case is Article 2180, the pertinent portion of which

provides: "The father and, in case of his death or incapacity, the mother, are responsible

for damages caused by the minor children who lived in their company." To hold that

this provision does not apply to the instant case because it only covers obligations

which arise from quasi-delicts and not obligations which arise from criminal offenses,

would result in the absurdity that while for an act where mere negligence intervenes the

father or mother may stand subsidiarily liable for the damage caused by his or her son,

no liability would attach if the damage is caused with criminal intent. Verily, the void

that apparently exists in the Revised Penal Code is subserved by this particular

provision of our Civil Code, as may be gleaned from some recent decisions of this Court

which cover equal or identical cases.

A case in point is Exconde vs. Capuno, 101 Phil., 843, the facts of which are as follows:

Dante Capuno, a minor of 15 years of age, lives in the company of his father,

Delfin Capuno. He is a student of the Balintawak Elementary School in the City

of San Pablo and a member of the Boy Scout Organization of his school. On

Marcy 31, 1949, on the occasion of a certain parade in honor of Dr. Jose Rizal in

the City of San Pablo, Dante Capuno was one of those instructed by the City

School Supervisor to join the parade. From the school, Dante Capuno, together

with other students, boarded a jeep. When the jeep started to run, Dante Capuno

took hold of the wheel and drove it while the driver sat on his left side. They

have not gone far when the jeep turned turtle and two of its passengers, Amando

Ticson and Isidro Caperina died as a consequence. The corresponding criminal

action for double homicide through reckless imprudence was instituted against

Dante Capuno. During the trial, Sabina Exconde, as mother of the deceased

Isidro Caperina, reserved her right to bring a separate civil action for damages

against the accused. Dante Capuno was found guilty of the criminal offense

charged against him. In line with said reservation of Sabina Exconde, the

corresponding civil action for damages was filed against Delfin Capuno, Dante

Capuno and others.

In holding Delfin Capuno jointly and severally liable with his minor son Dante Capuno

arising from the criminal act committed by the latter, this Court made the following

ruling:

The civil liability which the law imposes upon the father and, in case of his death

or incapacity, the mother, for any damages that may be caused by the minor

children who live with them, is obvious. This is a necessary consequence of the

parental authority they exercise over them which imposes upon the parents the

"duty of supporting them, keeping them in their company, educating them in

proportion to their means", while, on the other hand, gives them the "right to

correct and punish them in moderation" (Arts. 134 and 135, Spanish Civil Code).

The only way by which they can relieved themselves of this liability is if they

prove that they exercised all the diligence of a good father of a family to prevent

the damage (Art. 1903, last paragraph, Spanish Civil Code.) This defendants

failed to prove.

Another case in point is Araneta vs. Arreglado 104 Phil., 524; 55 Off. Gaz. [9] 1961. The

facts of this case are as follows:

On March 7, 1951, while plaintiff Benjamin Araneta was talking with the other

students of the Ateneo de Manila while seated atop a low ruined wall bordering

the Ateneo grounds along Dakota Street, in the City of Manila, Dario Arreglado,

a former student of the Ateneo, chanced to pass by. Those on the wall called

Dario and conversed with him, and in the course of their talk, twitted him on his

leaving the Ateneo and enrolling in the De La Salle College. Apparently,

Arreglado resented the banter and suddenly pulling from his pocket a Japanese

Luger pistol (licensed in the name of his father Juan Arreglado), fired the same at

Araneta, hitting him in the lower jaw, causing him to drop backward, bleeding

profusely. Helped by his friends, the injured lad was taken first to the school

infirmary and later to the Singian Hospital, where he lay hovering between life

and death for three days. The vigor of youth came to his rescue; he rallied and

after sometime finally recovered, the gunshot would left him with a degenerative

injury to the jawbone (mandible) and a scar in the lower portion of the face,

where the bullet had plowed through. The behavior of Benjamin was likewise

affected, he becoming inhibited and morose after leaving the hospital.

Dario Arreglado was indicted for frustrated homicide and pleaded guilty, but in view

of his youth, he being only 14 years of age, the court suspended the proceedings as

prescribed by Article 80 of the Revised Penal Code. Thereafter, an action was instituted

by Araneta and his father against Juan Arreglado, his wife, and their son Dario, to

recover material, moral and exemplary damages. The court of first instance, after trial,

sentenced the Arreglados to pay P3,943.00 as damages and attorney's fees. From this

decision, the Araneta appealed in view of the meager amount of indemnity awarded.

This Court affirmed the decision but increased the indemnity to P18,000.00. This is a

typical case of parental subsidiary liability arising from the criminal act of a minor son.

Wherefore, the decision appealed from is reversed. Judgement is hereby rendered

ordering appellee to pay appellants the sum of P2,000.00, with legal interest thereon

from the filing of the complaint, and the costs.

AGAPITO FUELLAS, petitioner,

vs.

ELPIDIO CADANO, ET AL., respondents.

Ambrosio Padilla, Feliciano C. Tumale and Roberto R. Reverente for petitioner.

Valerio V. Rovira for respondents.

PAREDES, J.:

For serious physical injuries sustained by Pepito Cadano, son of plaintiff-appellee

Elpidio Cadano, two separate actions were instituted, Civil Case No. 583, filed on

October 1, 1954, for damages against Agapito Fuellas, father of the minor Rico Fuellas,

who caused the injuries, and Criminal Case No. 1765, against Rico Fuellas, filed on

November 11, 1954, for serious physical injuries. They were tried jointly. On May 18,

1956, a judgment of conviction in the criminal case was rendered, finding Rico Fuellas

guilty of the offense charged. No pronouncement as to his civil liability was made, the

trial judge having ruled that the same "shall be determined in Civil Case No. 583 of this

Court." On May 25, 1956, the same court, rendered judgment in the civil case making

defendant therein, now appellant Agapito Fuellas, liable under Art. 2180 of the new

Civil Code for the following damages: —

For medicine, etc. P1,000.00

For moral damages 6,000.00

As exemplary

damages

2,000.00

As attorney's fees 600.00

T o t a l P9,600.00

with 6% annual interest thereon until paid. The Court of Appeals modified the

judgment by reducing the moral damages to P3,000.00. An appeal was taken to this

tribunal solely on questions of law.

Pepito Cadano and Rico Fuellas, son of defendant-appellant Agapito Fuellas, were both

13 years old, on September 16, 1954. They were classmates at St. Mary's High School,

Dansalan City. In the afternoon of September 16, 1954, while Pepito was studying his

lessons in the classroom, Rico took the pencil of one Ernesto Cabanok and

surreptitiously placed it inside the pocket of Pepito. When Ernesto asked Rico to return

the pencil, it was Pepito who returned the same, an act which angered Rico, who held

the neck of Pepito and pushed him to the floor. Villamira, a teacher, separated Rico and

Pepito and told them to go home. Rico went ahead, with Pepito following. When Pepito

had just gone down of the schoolhouse, he was met by Rico, still in an angry mood.

Angelito Aba, a classmate, told the two to shake hands. Pepito extended his hand to

Rico. Instead of accepting the proffer to shake hands, Rico held Pepito by the neck and

with his leg, placed Pepito out of balance and pushed him to the ground. Pepito fell on

his right side with his right arm under his body, whereupon, Rico rode on his left side.

While Rico was in such position, Pepito suddenly cried out "My arm is broken." Rico

then got up and went away. Pepito was helped by others to go home. That same

evening Pepito was brought to the Lanao General Hospital for treatment (Exh. 4). An X-

Ray taken showed that there was a complete fracture of the radius and ulna of the right

forearm which necessitated plaster casting (Exhs. A, B and D). On November 20, 1954,

more than a month after Pepito's release from the hospital, the plaster cast was

removed. And up to the last day of hearing of the case, the right forearm of Pepito was

seen to be shorter than the left forearm, still in bandage and could not be fully used.

It is contended that in the decision of the Court of Appeals, the petitioner-appellant was

ordered to pay damages for the deliberate injury caused by his son; that the said court

held the petitioner liable pursuant to par. 2 of Art. 2180 of the Civil Code, in connection

with Art. 2176 of the same Code; that according to the last article, the act of the minor

must be one wherein "fault or negligence" is present; and that there being no fault or

negligence on the part of petitioner-appellant's minor son, but deliberate intent, the

above mentioned articles are not applicable, for the existence of deliberate intent in the

commission of an act negatives the presence of fault or negligence in its commission.

Appellant, therefore, submits that the appellate Court erred in holding him liable for

damages for the deliberate criminal act of his minor son.

The above-mentioned provisions of the Civil Code states: —

Whoever by act or omission causes damage to another, there being fault or

negligence is obliged to pay for the damage done. Such fault or negligence, if

there is no pre-existing contractual relation between the parties is called a quasi-

delict and is governed by the provisions of this chapter. (Article 2176)

The obligations imposed by article 2176 is demandable not only for one's own

acts or omissions, but also for those of persons for whom one is responsible.

The father and, in case of his death or incapacity, the mother, are responsible for

the damages caused by the minor children who live in their company.

xxx xxx xxx (Article 2180).

In the case of Araneta vs. Arreglado, G.R. No. L-11394, prom. September 9, 1958,

Benjamin Araneta was talking with other students of the Ateneo de Manila, seated atop

a low ruined wall. Dario Arreglado, a former student of the Ateneo, chanced to pass by.

The boys twitted him on his leaving the Ateneo and enrolling in the De la Salle College.

Arreglado, resenting the banter, pulled a Japanese luger pistol (licensed in the name of

his father Juan Arreglado), fired the same at Araneta, hitting him in the lower jaw.

Dario was indicted for frustrated homicide and pleaded guilty. But in view of his youth,

he being only 14 years of age, the Court suspended the proceedings (Art. 80 of the

Revised Penal Code). Thereafter, action was instituted by Araneta and his father against

Juan Arreglado, his wife and their son Dario to recover material, moral and exemplary

damages. The Court of First Instance sentenced the Arreglados to pay P3,943.00 as

damages and attorney's fees. The Aranetas appealed in view of the meager amount of

indemnity awarded. This tribunal affirmed the decision but increased the indemnity to

P18,000.00. This decision was predicated upon the fact that Arreglado's father had acted

negligently in allowing his son to have access to the pistol used to injure Benjamin. And

this was the logical consequence of the case, considering the fact that the civil law

liability under Article 2180 is not respondeat superior but the relationship of pater

familias which bases the liability of the father ultimately on his own negligence and not

on that of his minor son (Cuison vs. Norton & Harrison, 55 Phil. 23), and that if an

injury is caused by the fault or negligence of his minor son, the law presumes that there

was negligence on the part of his father (Bahia vs. Litonjua y Leynes, 30 Phil., 625).

In an earlier case (Exconde vs. Capuno, et al., G.R. No. L-10132, prom. June 29, 1957),

holding the defendants jointly and severally liable with his minor son Dante for

damages, arising from the criminal act committed by the latter, this tribunal gave the

following reasons for the rule: —

The civil liability which the law imposes upon the father and, in case of his death

or incapacity, the mother, for any damages that may be caused by the minor

children who live with them, is obvious. This is a necessary consequence of the

parental authority they exercise over them which imposes upon the parents the

"duty of supporting them, keeping them in their company, educating them in

proportion to their means", while on the other hand, gives them the "right to

correct and punish them in moderation" (Arts. 134 and 135, Spanish Civil Code).

The only way by which they can relieve themselves of this liability is if they

prove that they exercised all the diligence of a good father of a family to prevent

the damage (Art. 1903, last paragraph, Spanish Civil Code). This, defendants

failed to prove.

And a noted Spanish commentator said: —

Since children and wards do not yet have the capacity to govern themselves, the

law imposes upon the parents and guardians the duty of exercising special

vigilance over the acts of their children and wards in order that damages to third

persons due to the ignorance, lack of foresight or discernment of such children

and wards may be avoided. If the parents and guardians fail to comply with this

duty, they should suffer the consequences of their abandonment or negligence by

repairing the damage caused" (12 Manresa, 649-650). (See also Arts. 311 and 316,

Civil Code).

It is further argued that the only way by which a father can be made responsible for the

criminal act of his son committed with deliberate intent and with discernment, is an

action based on the provisions of the Revised Penal Code on subsidiary liability of the

parents; that the minor Fuellas having been convicted of serious physical injuries at the

age of 13, the provisions of par. 3 of Art. 12, Revised Penal Code, could have been

applied, but having acted with discernment, Art. 101 of the same Code can not include

him. And as par. 2, of Art. 101, states that "the exemption from criminal liability

established in subdivisions 1, 2, 3, 5 and 6 of Article 12 and in subdivision 4 of Art. 11 of

this Code does not include exemption from civil liability, which shall be enforced

subject to the following rules: First, in cases of subdivisions 1, 2 and 3 of Article 12, the

civil liability for acts committed by an 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," the appellant concluded that this provision covers only a situation where a minor

under 15 but over 9 years old commits a criminal act "without discernment."

In the recent case of Salen and Salbanera vs. Jose Balce, G.R. No. L-14414, April 27, 1960; 57

Off. Gaz. No. 37, p. 6603, September 11, 1961, the defendant Balce was the father of a

minor Gumersindo Balce, below 18 years of age who was living with him. Gumersindo

was found guilty of homicide for having killed Carlos Salen, minor son of plaintiffs. The

trial court rendered judgment dismissing the case, stating that the civil liability of the

minor son of defendant arising from his criminal liability must be determined under the

provisions of the Revised Penal Code and not under Art. 2180 of the new Civil Code. In

reversing the decision, this tribunal held: —

It is true that under Art. 101 of the Revised Penal Code, a father is made civilly

liable for the acts committed by his son only if the latter is an imbecile, an insane,

under 9 years of age, or over 9 but under 15 years of age, who acts without

discernment, unless it appears that there is no fault or negligence on his part.

This is because a son who commits the act under any of those conditions is by

law exempt from criminal liability (Article 12, subdivisions 1, 2 and 3, Revised

Penal Code). The idea is not to leave the act entirely unpunished but to attach

certain civil liability to the person who has the delinquent minor under his legal

authority or control. But a minor over 15 who acts with discernment is not

exempt from criminal liability, for which reason the Code is silent as to the

subsidiary liability of his parents should he stand convicted. In that case, resort

should be had to the general law which is our Civil Code.

The particular law that governs this case is Article 2180, the pertinent portion of

which provides: "The father and, in case of his death or incapacity, the mother,

are responsible for damages caused by the minor children who live in their

company." To hold that this provision does not apply to the instant case because

it only covers obligations which arise from quasi-delicts and not obligations which

arise from criminal offenses, would result in the absurdity that while for an act

where mere negligence intervenes the father or mother may stand subsidiarily

liable for the damage caused by his or her son, no liability would attach if the

damage is caused with criminal intent. Verily, the void apparently exists in the

Revised Penal Code is subserved by this particular provision of our Civil Code,

as may be gleaned from some recent decisions of this Court which cover equal or

identical cases.

Moreover, the case at bar was decided by the Court of Appeals on the basis of the

evidence submitted therein by both parties, independently of the criminal case. And

responsibility for fault or negligence under Article 2176 upon which the action in the

present case was instituted, is entirely separate and distinct from the civil liability

arising from fault of negligence under the Penal Code (Art. 2177), and having in mind

the reasons behind the law as heretofore stated, any discussion as to the minor's

criminal responsibility is of no moment.

IN VIEW HEREOF, the petition is dismissed, the decision appealed from is affirmed,

with costs against the petitioner.

MACARIO TAMARGO, CELSO TAMARGO and AURELIA

TAMARGO, petitioners,

vs.

HON. COURT OF APPEALS, THE HON. ARISTON L. RUBIO, RTC Judge, Branch

20, Vigan, Ilocos Sur; VICTOR BUNDOC; and CLARA BUNDOC, respondents.

FELICIANO, J.:

On 20 October 1982, Adelberto Bundoc, then a minor of 10 years of age, shot Jennifer

Tamargo with an air rifle causing injuries which resulted in her death. Accordingly, a

civil complaint for damages was filed with the Regional Trial Court, Branch 20, Vigan,

Ilocos Sur, docketed as Civil Case No. 3457-V, by petitioner Macario Tamargo, Jennifer's

adopting parent, and petitioner spouses Celso and Aurelia Tamargo, Jennifer's natural

parents against respondent spouses Victor and Clara Bundoc, Adelberto's natural

parents with whom he was living at the time of the tragic incident. In addition to this

case for damages, a criminal information or Homicide through Reckless Imprudence

was filed [Criminal Case No. 1722-V] against Adelberto Bundoc. Adelberto, however,

was acquitted and exempted from criminal liability on the ground that he bad acted

without discernment.

Prior to the incident, or on 10 December 1981, the spouses Sabas and Felisa Rapisura

had filed a petition to adopt the minor Adelberto Bundoc in Special Proceedings No.

0373-T before the then Court of First Instance of Ilocos Sur. This petition for adoption

was grunted on, 18 November 1982, that is, after Adelberto had shot and killed Jennifer.

In their Answer, respondent spouses Bundoc, Adelberto's natural parents, reciting the

result of the foregoing petition for adoption, claimed that not they, but rather the

adopting parents, namely the spouses Sabas and Felisa Rapisura, were indispensable

parties to the action since parental authority had shifted to the adopting parents from

the moment the successful petition for adoption was filed.

Petitioners in their Reply contended that since Adelberto Bundoc was then actually

living with his natural parents, parental authority had not ceased nor been relinquished

by the mere filing and granting of a petition for adoption.

The trial court on 3 December 1987 dismissed petitioners' complaint, ruling that

respondent natural parents of Adelberto indeed were not indispensable parties to the

action.

Petitioners received a copy of the trial court's Decision on 7 December 1987. Within the

15-day reglementary period, or on 14 December 1987, petitioners filed a motion for

reconsideration followed by a supplemental motion for reconsideration on 15 January

1988. It appearing, however, that the motions failed to comply with Sections 4 and 5 of

Rule 15 of the Revised Rules of Court — that notice of the motion shall be given to all

parties concerned at least three (3) days before the hearing of said motion; and that said

notice shall state the time and place of hearing — both motions were denied by the trial

court in an Order dated 18 April 1988. On 28 April 1988, petitioners filed a notice of

appeal. In its Order dated 6 June 1988, the trial court dismissed the notice at appeal, this

time ruling that the notice had been filed beyond the 15-day reglementary period

ending 22 December 1987.

Petitioners went to the Court of Appeals on a petition

for mandamus and certiorari questioning the trial court's Decision dated 3 December 1987

and the Orders dated 18 April 1988 and 6 June 1988, The Court of Appeals dismissed

the petition, ruling that petitioners had lost their right to appeal.

In the present Petition for Review, petitioners once again contend that respondent

spouses Bundoc are the indispensable parties to the action for damages caused by the

acts of their minor child, Adelberto Bundoc. Resolution of this Petition hinges on the

following issues: (1) whether or not petitioners, notwithstanding loss of their right to

appeal, may still file the instant Petition; conversely, whether the Court may still take

cognizance of the case even through petitioners' appeal had been filed out of time; and

(2) whether or not the effects of adoption, insofar as parental authority is concerned

may be given retroactive effect so as to make the adopting parents the indispensable

parties in a damage case filed against their adopted child, for acts committed by the

latter, when actual custody was yet lodged with the biological parents.

1. It will be recalled that, petitioners' motion (and supplemental motion) for

reconsideration filed before the trial court, not having complied with the requirements

of Section 13, Rule 41, and Section 4, Rule 15, of the Revised Rules of Court, were

considered pro forma and hence did not interrupt and suspend the reglementary period

to appeal: the trial court held that the motions, not having contained a notice of time

and place of hearing, had become useless pieces of paper which did not interrupt the

reglementary period. 1 As in fact repeatedly held by this Court, what is mandatory is

the service of the motion on the opposing counsel indicating the time and place of

hearing. 2

In view, however, of the nature of the issue raised in the instant. Petition, and in order

that substantial justice may be served, the Court, invoking its right to suspend the

application of technical rules to prevent manifest injustice, elects to treat the notice of

appeal as having been seasonably filed before the trial court, and the motion (and

supplemental motion) for reconsideration filed by petitioner in the trial court as having

interrupted the reglementary period for appeal. As the Court held in Gregorio v. Court of

Appeals: 3

Dismissal of appeal; purely on technical grounds is frowned upon where

the policy of the courts is to encourage hearings of appeal on their merits.

The rules of procedure ought not be applied in a very rigid technical

sense, rules of procedure are used only to help secure not override,

substantial justice. if d technical and rigid enforcement of the rules is

made their aim would be defeated. 4

2. It is not disputed that Adelberto Bundoc's voluntary act of shooting Jennifer Tamargo

with an air rifle gave rise to a cause of action on quasi-delict against him. As Article 2176

of the Civil Code provides:

Whoever by act or omission causes damage to another, there being fault

or negligence, is obliged to pay for the damage done. Such fault or

negligence, if there is no pre-existing contractual relation between the

parties, is called a quasi-delict . . .

Upon the other hand, the law imposes civil liability upon the father and, in case of his

death or incapacity, the mother, for any damages that may be caused by a minor

child who lives with them. Article 2180 of the Civil Code reads:

The obligation imposed by article 2176 is demandable not only for one's

own acts or omissions, but also for those of persons for whom one is

responsible.

The father and, in case of his death or incapacity, the mother, are

responsible for the damages caused by the minor children who live in their

company.

xxx xxx xxx

The responsibility treated of in this Article shall cease when the person

herein mentioned prove that they observed all the diligence of a good

father of a family to prevent damage. (Emphasis supplied)

This principle of parental liability is a species of what is frequently designated as

vicarious liability, or the doctrine of "imputed negligence" under Anglo-American tort

law, where a person is not only liable for torts committed by himself, but also for torts

committed by others with whom he has a certain relationship and for whom he is

responsible. Thus, parental liability is made a natural or logical consequence of the

duties and responsibilities of parents — their parental authority — which includes the

instructing, controlling and disciplining of the child. 5 The basis for the doctrine of

vicarious liability was explained by the Court in Cangco v. Manila Railroad Co. 6 in the

following terms:

With respect to extra-contractual obligation arising from negligence,

whether of act or omission, it is competent for the legislature to elect —

and our Legislature has so elected — to limit such liability to cases in

which the person upon whom such an obligation is imposed is morally

culpable or, on the contrary, for reasons of public policy. to extend that

liability, without regard to the lack of moral culpability, so as to

include responsibility for the negligence of those persons whose acts or omissions

are imputable, by a legal fiction, to others who are in a position to exercise an

absolute or limited control over them. The legislature which adopted our Civil

Code has elected to limit extra-contractual liability — with certain well-

defined exceptions — to cases in which moral culpability can be directly

imputed to the persons to be charged. This moral responsibility may consist in

having failed to exercise due care in one's own acts, or in having failed to

exercise due care in the selection and control of one's agent or servants, or in

the control of persons who, by reasons of their status, occupy a position of

dependency with respect to the person made liable for their conduct. 7 (Emphasis

Supplied)

The civil liability imposed upon parents for the torts of their minor children

living with them, may be seen to be based upon the parental authority vested by

the Civil Code upon such parents. The civil law assumes that when an

unemancipated child living with its parents commits a tortious acts, the parents

were negligent in the performance of their legal and natural duty closely to

supervise the child who is in their custody and control. Parental liability is, in

other words, anchored upon parental authority coupled with presumed parental

dereliction in the discharge of the duties accompanying such authority. The

parental dereliction is, of course, only presumed and the presumption can be

overtuned under Article 2180 of the Civil Code by proof that the parents had

exercised all the diligence of a good father of a family to prevent the damage.

In the instant case, the shooting of Jennifer by Adelberto with an air rifle occured when

parental authority was still lodged in respondent Bundoc spouses, the natural parents

of the minor Adelberto. It would thus follow that the natural parents who had then

actual custody of the minor Adelberto, are the indispensable parties to the suit for

damages.

The natural parents of Adelberto, however, stoutly maintain that because a decree of

adoption was issued by the adoption court in favor of the Rapisura spouses, parental

authority was vested in the latter as adopting parents as of the time of the filing of the

petition for adoption that is, before Adelberto had shot Jennifer which an air rifle. The

Bundoc spouses contend that they were therefore free of any parental responsibility for

Adelberto's allegedly tortious conduct.

Respondent Bundoc spouses rely on Article 36 of the Child and Youth Welfare

Code 8 which reads as follows:

Art. 36. Decree of Adoption. — If, after considering the report of the

Department of Social Welfare or duly licensed child placement agency

and the evidence submitted before it, the court is satisfied that the

petitioner is qualified to maintain, care for, and educate the child, that the

trial custody period has been completed, and that the best interests of the

child will be promoted by the adoption, a decree of adoption shall be entered,

which shall be effective he date the original petition was filed. The decree shall

state the name by which the child is thenceforth to be known. (Emphasis

supplied)

The Bundoc spouses further argue that the above Article 36 should be read in

relation to Article 39 of the same Code:

Art. 39. Effect of Adoption. — The adoption shall:

xxx xxx xxx

(2) Dissolve the authority vested in the natural parents, except where the

adopter is the spouse of the surviving natural parent;

xxx xxx xxx

(Emphasis supplied)

and urge that their Parental authority must be deemed to have been dissolved as of the

time the Petition for adoption was filed.

The Court is not persuaded. As earlier noted, under the Civil Code, the basis of parental

liability for the torts of a minor child is the relationship existing between the parents

and the minor child living with them and over whom, the law presumes, the parents

exercise supervision and control. Article 58 of the Child and Youth Welfare Code, re-

enacted this rule:

Article 58 Torts — Parents and guardians are responsible for the damage

caused by the child under their parental authority in accordance with the

civil Code. (Emphasis supplied)

Article 221 of the Family Code of the Philippines 9 has similarly insisted upon the

requisite that the child, doer of the tortious act, shall have beer in the actual custody of

the parents sought to be held liable for the ensuing damage:

Art. 221. Parents and other persons exercising parental authority shall be

civilly liable for the injuries and damages caused by the acts or omissions

of their unemancipated children living in their companyand under their

parental authority subject to the appropriate defenses provided by law.

(Emphasis supplied)

We do not believe that parental authority is properly regarded as having been

retroactively transferred to and vested in the adopting parents, the Rapisura spouses, at

the time the air rifle shooting happened. We do not consider that retroactive effect may

be giver to the decree of adoption so as to impose a liability upon the adopting parents

accruing at a time when adopting parents had no actual or physically custody over the adopted

child. Retroactive affect may perhaps be given to the granting of the petition for

adoption where such is essential to permit the accrual of some benefit or advantage in

favor of the adopted child. In the instant case, however, to hold that parental authority

had been retroactively lodged in the Rapisura spouses so as to burden them with

liability for a tortious act that they could not have foreseen and which they could not

have prevented (since they were at the time in the United States and had no physical

custody over the child Adelberto) would be unfair and unconscionable. Such a result,

moreover, would be inconsistent with the philosophical and policy basis underlying the

doctrine of vicarious liability. Put a little differently, no presumption of parental

dereliction on the part of the adopting parents, the Rapisura spouses, could have arisen

since Adelberto was not in fact subject to their control at the time the tort was

committed.

Article 35 of the Child and Youth Welfare Code fortifies the conclusion reached above.

Article 35 provides as follows:

Art. 35. Trial Custody. — No petition for adoption shall be finally granted

unless and until the adopting parents are given by the courts a supervised

trial custody period of at least six months to assess their adjustment and

emotional readiness for the legal union. During the period of trial custody,

parental authority shall be vested in the adopting parents. (Emphasis supplied)

Under the above Article 35, parental authority is provisionally vested in the adopting

parents during the period of trial custody, i.e., before the issuance of a decree of

adoption, precisely because the adopting parents are given actual custody of the child during

such trial period. In the instant case, the trial custody period either had not yet begun or

bad already been completed at the time of the air rifle shooting; in any case, actual

custody of Adelberto was then with his natural parents, not the adopting parents.

Accordingly, we conclude that respondent Bundoc spouses, Adelberto's natural

parents, were indispensable parties to the suit for damages brought by petitioners, and

that the dismissal by the trial court of petitioners' complaint, the indispensable parties

being already before the court, constituted grave abuse of discretion amounting to lack

or excess of jurisdiction.

WHEREFORE, premises considered, the Petition for Review is hereby GRANTED DUE

COURSE and the Decision of the Court of Appeals dated 6 September 1988, in C.A.-

G.R. No. SP-15016 is hereby REVERSED and SET ASIDE. Petitioners' complaint filed

before the trial court is hereby REINSTATED and this case is REMANDED to that court

for further proceedings consistent with this Decision. Costs against respondent Bundoc

spouses. This Decision is immediately executory.

SO ORDERED.

MARIA TERESA Y. CUADRA, minor represented by her father ULISES P.

CUADRA, ET AL., plaintiffs-appellees,

vs.

ALFONSO MONFORT, defendant-appellant.

Rodolfo J. Herman for plaintiffs-appellees.

Luis G. Torres and Abraham E. Tionko for defendant-appellant.

MAKALINTAL, J.:

This is an action for damages based on quasi-delict, decided by the Court of First

Instance of Negros Occidental favorably to the plaintiffs and appealed by the defendant

to the Court of Appeals, which certified the same to us since the facts are not in issue.

Maria Teresa Cuadra, 12, and Maria Teresa Monfort, 13, were classmates in Grade Six at

the Mabini Elementary School in Bacolod City. On July 9, 1962 their teacher assigned

them, together with three other classmates, to weed the grass in the school premises.

While thus engaged Maria Teresa Monfort found a plastic headband, an ornamental

object commonly worn by young girls over their hair. Jokingly she said aloud that she

had found an earthworm and, evidently to frighten the Cuadra girl, tossed the object at

her. At that precise moment the latter turned around to face her friend, and the object

hit her right eye. Smarting from the pain, she rubbed the injured part and treated it with

some powder. The next day, July 10, the eye became swollen and it was then that the

girl related the incident to her parents, who thereupon took her to a doctor for

treatment. She underwent surgical operation twice, first on July 20 and again on August

4, 1962, and stayed in the hospital for a total of twenty-three days, for all of which the

parents spent the sum of P1,703.75. Despite the medical efforts, however, Maria Teresa

Cuadra completely lost the sight of her right eye.

In the civil suit subsequently instituted by the parents in behalf of their minor daughter

against Alfonso Monfort, Maria Teresa Monfort's father, the defendant was ordered to

pay P1,703.00 as actual damages; P20,000.00 as moral damages; and P2,000.00 as

attorney's fees, plus the costs of the suit.

The legal issue posed in this appeal is the liability of a parent for an act of his minor

child which causes damage to another under the specific facts related above and the

applicable provisions of the Civil Code, particularly Articles 2176 and 2180 thereof,

which read:

ART. 2176. Whoever by act or omission causes damage to another, there

being fault or negligence, is obliged to pay for the damage done. Such

fault or negligence, if there is no pre-existing contractual relation between

the parties, is called a quasi-delict and is governed by provisions of this

Chapter.

ART 2180. The obligation imposed by Article 2176 is demandable not only

for one's own acts or omissions, but also for those of persons for whom

one is responsible.

The father and, in case of his death or incapacity are responsible for the

damages caused by the minor children who live in their company.

xxx xxx xxx

The responsibility treated of in this Article shall cease when the persons

herein mentioned prove that they observed all the diligence of a good

father of a family to prevent damage.

The underlying basis of the liability imposed by Article 2176 is the fault or negligence

accompanying the act or the omission, there being no willfulness or intent to cause

damage thereby. When the act or omission is that of one person for whom another is

responsible, the latter then becomes himself liable under Article 2180, in the different

cases enumerated therein, such as that of the father or the mother under the

circumstances above quoted. The basis of this vicarious, although primary, liability is,

as in Article 2176, fault or negligence, which is presumed from that which accompanied

the causative act or omission. The presumption is merely prima facie and may therefore

be rebutted. This is the clear and logical inference that may be drawn from the last

paragraph of Article 2180, which states "that the responsibility treated of in this Article

shall cease when the persons herein mentioned prove that they observed all the

diligence of a good father of a family to prevent damage."

Since the fact thus required to be proven is a matter of defense, the burden of proof

necessarily rests on the defendant. But what is the exact degree of diligence

contemplated, and how does a parent prove it in connection with a particular act or

omission of a minor child, especially when it takes place in his absence or outside his

immediate company? Obviously there can be no meticulously calibrated measure

applicable; and when the law simply refers to "all the diligence of a good father of the

family to prevent damage," it implies a consideration of the attendant circumstances in

every individual case, to determine whether or not by the exercise of such diligence the

damage could have been prevented.

In the present case there is nothing from which it may be inferred that the defendant

could have prevented the damage by the observance of due care, or that he was in any

way remiss in the exercise of his parental authority in failing to foresee such damage, or

the act which caused it. On the contrary, his child was at school, where it was his duty

to send her and where she was, as he had the right to expect her to be, under the care

and supervision of the teacher. And as far as the act which caused the injury was

concerned, it was an innocent prank not unusual among children at play and which no

parent, however careful, would have any special reason to anticipate much less guard

against. Nor did it reveal any mischievous propensity, or indeed any trait in the child's

character which would reflect unfavorably on her upbringing and for which the blame

could be attributed to her parents.

The victim, no doubt, deserves no little commiseration and sympathy for the tragedy

that befell her. But if the defendant is at all obligated to compensate her suffering, the

obligation has no legal sanction enforceable in court, but only the moral compulsion of

good conscience.

The decision appealed from is reversed, and the complaint is dismissed, without

pronouncement as to costs.

Reyes, J.B.L., Actg. C.J., Dizon, Zaldivar, Castro, Teehankee, Villamor and Makasiar, JJ.,

concur.

Concepcion, C.J., is on leave.

Fernando, J., took no part.

Separate Opinions

BARREDO, J., dissenting:

I am afraid I cannot go along with my esteemed colleagues in holding that the act of

appellant's daughter does not constitute fault within the contemplation of our law or

torts. She was 13 years and should have known that by jokingly saying "aloud that she

had found an earthworm and, evidently to frighten the Cuadra girl, tossed the object at

her," it was likely that something would happen to her friend, as in fact, she was hurt.

As to the liability of appellant as father, I prefer to hold that there being no evidence

that he had properly advised his daughter to behave properly and not to play

dangerous jokes on her classmate and playmates, he can be liable under Article 2180 of

the Civil Code. There is nothing in the record to show that he had done anything at all

to even try to minimize the damage caused upon plaintiff child.

# Separate Opinions

BARREDO, J., dissenting:

I am afraid I cannot go along with my esteemed colleagues in holding that the act of

appellant's daughter does not constitute fault within the contemplation of our law or

torts. She was 13 years and should have known that by jokingly saying "aloud that she

had found an earthworm and, evidently to frighten the Cuadra girl, tossed the object at

her," it was likely that something would happen to her friend, as in fact, she was hurt.

As to the liability of appellant as father, I prefer to hold that there being no evidence

that he had properly advised his daughter to behave properly and not to play

dangerous jokes on her classmate and playmates, he can be liable under Article 2180 of

the Civil Code. There is nothing in the record to show that he had done anything at all

to even try to minimize the damage caused upon plaintiff child.

Spouses MOISES P. PALISOC and BRIGIDA P. PALISOC, plaintiffs-appellants,

vs.

ANTONIO C. BRILLANTES and TEODOSIO V. VALENTON, owner and President,

respectively, of a school of arts and trades, known under the name and style of

"Manila Technical Institute" (M.I.T.), VIRGILIO L. DAFFON and SANTIAGO M.

QUIBULUE, defendants-appellees.

Leovillo C. Agustin for plaintiffs-appellants. .

Honorato S. Reyes for appellee Brillantes, et al. .

Villareal, Almacen Navarra & Amores for appellee Daffon. .

TEEHANKEE, J.:

An appeal in forma pauperis on pure questions of law from a decision of the Court of

First Instance of Manila. .

Plaintiffs-appellants as parents of their sixteen-year old son, Dominador Palisoc, and a

student in automotive mechanics at the Manila Technical Institute, Quezon Boulevard,

Manila, had filed on May 19, 1966, the action below for damages arising from the death

on March 10, 1966 of their son at the hands of a fellow student, defendant Virgilio L.

Daffon, at the laboratory room of the said Institute. .

Defendants, per the trial court's decision, are: "(T)he defendant Antonio C. Brillantes, at

the time when the incident which gave rise to his action occurred was a member of the

Board of Directors of the institute; 1 the defendant Teodosio Valenton, the president

thereof; the defendant Santiago M. Quibulue, instructor of the class to which the

deceased belonged; and the defendant Virgilio L. Daffon, a fellow student of the

deceased. At the beginning the Manila Technical Institute was a single proprietorship,

but lately on August 2, 1962, it was duly incorporated."

The facts that led to the tragic death of plaintiffs' son were thus narrated by the trial

court: "(T)he deceased Dominador Palisoc and the defendant Virgilio L. Daffon were

classmates, and on the afternoon of March 10, 1966, between two and three o'clock,

they, together with another classmate Desiderio Cruz were in the laboratory room

located on the ground floor. At that time the classes were in recess. Desiderio Cruz and

Virgilio L. Daffon were working on a machine while Dominador Palisoc was merely

looking on at them. Daffon made a remark to the effect that Palisoc was acting like a

foreman. Because of this remark Palisoc slapped slightly Daffon on the face. Daffon, in

retaliation, gave Palisoc a strong flat blow on the face, which was followed by other fist

blows on the stomach. Palisoc retreated apparently to avoid the fist blows, but Daffon

followed him and both exchanged blows until Palisoc stumbled on an engine block

which caused him to fall face downward. Palisoc became pale and fainted. First aid was

administered to him but he was not revived, so he was immediately taken to a hospital.

He never regained consciousness; finally he died. The foregoing is the substance of the

testimony of Desiderio Cruz, the lone witness to the incident."

The trial court expressly gave credence to this version of the incident, as testified to by

the lone eyewitness, Desiderio Cruz, a classmate of the protagonists, as that of a

disinterested witness who "has no motive or reason to testify one way or another in

favor of any party" and rejected the self-exculpatory version of defendant Daffon

denying that he had inflicted any fist blows on the deceased. .

With the postmortem findings of Dr. Angelo Singian of the Manila Police Department

who performed the autopsy re "Cause of death: shock due to traumatic fracture of

theribs (6th and 7th, left, contusion of the pancreas and stomach with intra-gastric

hemorrhage and slight subarachnoid hemorrhage on the brain," and his testimony that

these internal injuries of the deceased were caused "probably by strong fist blows," the

trial court found defendant Daffon liable for the quasi delict under Article 2176 of the

Civil Code. 3 It held that "(T)he act, therefore, of the accused Daffon in giving the

deceased strong fistblows in the stomach which ruptured his internal organs and

caused his death falls within the purview of this article of the Code." 4

The trial court, however, absolved from liability the three other defendants-officials of

the Manila Technical Institute, in this wise:

... Their liabilities are based on the provisions of Article 2180 of the New

Civil Code which reads:

Art. 2180. ... .

Lastly, teachers or heads of establishments of arts and trades

shall be liable for damages caused by their pupils and

students and apprentices, so long as they remain in their

custody.

In the opinion of the Court, this article of the Code is not applicable to the

case at bar, since this contemplates the situation where the control or

influence of the teachers and heads of school establishments over the

conduct and actions by the pupil supersedes those of the parents.

CIVIL LAW: DAMAGES ART 2180. NEW CIVIL CODE

CONSTRUED: — The clause "so long as they remain in their

custody" contained in Article 2180 of the new civil code

contemplated a situation where the pupil lives and boards

with the teacher, such that the control or influence on the

pupil supersedes those of the parents. In those circumstances

the control or influence over the conduct and actions of the

pupil as well as the responsibilities for their sort would pass

from the father and mother to the teachers. (Ciriaco L.

Mercado, Petitioner vs. the Court of Appeals, Manuel

Quisumbing, Jr., et al., respondents, G.R. No. L-14862, May

30, 1960). 5

There is no evidence that the accused Daffon lived and boarded with his

teacher or the other defendant officials of the school. These defendants

cannot therefore be made responsible for the tort of the defendant Daffon.

Judgment was therefore rendered by the trial court as follows:

1. Sentencing the defendant Virgilio L. Daffon to pay the plaintiffs as heirs

of the deceased Dominador Palisoc (a) P6,000.00 for the death of

Dominador Palisoc; (b) P3,375.00 for actual and compensatory expenses;

(c) P5,000.00 for moral damages; (d) P10,000.00 for loss of earning power,

considering that the deceased was only between sixteen and seventeen

years, and in good health when he died, and (e) P2,000.00 for attorney's

fee, plus the costs of this action. .

2. Absolving the other defendants. .

3. Dismissing the defendants' counterclaim for lack of merit.

Plaintiffs' appeal raises the principal legal question that under the factual findings of the

trial court, which are now beyond review, the trial court erred in absolving the

defendants-school officials instead of holding them jointly and severally liable as

tortfeasors, with defendant Daffon, for the damages awarded them as a result of their

son's death. The Court finds the appeal, in the main, to be meritorious. .

1. The lower court absolved defendants-school officials on the ground that the

provisions of Article 2180, Civil Code, which expressly hold "teachers or heads of

establishments of arts and trades ... liable for damages caused by their pupils and

students and apprentices, so long as they remain in their custody," are not applicable to

to the case at bar, since "there is no evidence that the accused Daffon [who inflicted the

fatal fistblows] 6 lived and boarded with his teacher or the other defendants-officials of

the school. These defendants cannot therefore be made responsible for the tort of the

defendant Daffon."

The lower court based its legal conclusion expressly on the Court's dictum in Mercado

vs. Court of Appeals, 7 that "(I)t would seem that the clause "so long as they remain in

their custody," contemplates a situation where the pupil lives and boards with the

teacher, such that the control, direction and influence on the pupil supersedes those of

the parents. In these circumstances the control or influence over the conduct and actions

of the pupil would pass from the father and mother to the teacher; and so would the

responsibility for the torts of the pupil. Such a situation does not appear in the case at

bar; the pupils appear to go to school during school hours and go back to their homes

with their parents after school is over." This dictum had been made in rejecting therein

petitioner father's contention that his minor son's school, Lourdes Catholic School at

Kanlaon, Quezon City [which was not a party to the case] should be held responsible,

rather than him as father, for the moral damages of P2,000.00 adjudged against him for

the physical injury inflicted by his son on a classmate. [A cut on the right cheek with a

piece of razor which costs only P50.00 by way of medical expenses to treat and cure,

since the wound left no scar.] The moral damages award was after all set aside by the

Court on the ground that none of the specific cases provided in Article 2219, Civil Code,

for awarding moral damages had been established, petitioner's son being only nine

years old and not having been shown to have "acted with discernment" in inflicting the

injuries on his classmate. .

The dictum in Mercado was based in turn on another dictum in the earlier case

of Exconde vs. Capuno, 8 where the only issue involved as expressly stated in the decision,

was whether the therein defendant-father could be civilly liable for damages resulting

from a death caused in a motor vehicle accident driven unauthorizedly and negligently

by his minor son, (which issue was resolved adversely against the father). Nevertheless,

the dictum in such earlier case that "It is true that under the law abovequoted, teachers

or directors of arts and trades are liable for any damage caused by their pupils or

apprentices while they are under their custody, but this provision only applies to an

institution of arts and trades and not to any academic educational institution" was

expressly cited and quoted in Mercado. .

2. The case at bar was instituted directly against the school officials and squarely raises

the issue of liability of teachers and heads of schools under Article 2180, Civil Code, for

damages caused by their pupils and students against fellow students on the school

premises. Here, the parents of the student at fault, defendant Daffon, are not involved,

since Daffon was already of age at the time of the tragic incident. There is no question,

either, that the school involved is a non-academic school, 9 the Manila Technical

Institute being admittedly a technical vocational and industrial school. .

The Court holds that under the cited codal article, defendants head and teacher of the

Manila Technical Institute (defendants Valenton and Quibulue, respectively) are liable

jointly and severally for damages to plaintiffs-appellants for the death of the latter's

minor son at the hands of defendant Daffon at the school's laboratory room. No liability

attaches to defendant Brillantes as a mere member of the school's board of directors.

The school itself cannot be held similarly liable, since it has not been properly

impleaded as party defendant. While plaintiffs sought to so implead it, by impleading

improperly defendant Brillantes, its former single proprietor, the lower court found that

it had been incorporated since August 2, 1962, and therefore the school itself, as thus

incorporated, should have been brought in as party defendant. Plaintiffs failed to do so,

notwithstanding that Brillantes and his co-defendants in their reply to plaintiffs' request

for admission had expressly manifested and made of record that "defendant Antonio C.

Brillantes is not the registered owner/head of the "Manila Technical Institute" which is

now a corporation and is not owned by any individual person." 10

3. The rationale of such liability of school heads and teachers for the tortious acts of

their pupils and students, so long as they remain in their custody, is that they stand, to a

certain extent, as to their pupils and students, in loco parentis and are called upon to

"exercise reasonable supervision over the conduct of the child." 11 This is expressly

provided for in Articles 349, 350 and 352 of the Civil Code. 12 In the law of torts, the

governing principle is that the protective custody of the school heads and teachers is

mandatorily substituted for that of the parents, and hence, it becomes their obligation as

well as that of the school itself to provide proper supervision of the students' activities

during the whole time that they are at attendance in the school, including recess time, as

well as to take the necessary precautions to protect the students in their custody from

dangers and hazards that would reasonably be anticipated, including injuries that some

student themselves may inflict willfully or through negligence on their fellow students.

.

4. As tersely summarized by Mr. Justice J.B.L. Reyes in his dissenting opinion

in Exconde, "the basis of the presumption of negligence of Art. 1903 [now 2180] is

some culpa in vigilando that the parents, teachers, etc. are supposed to have incurred in

the exercise of their authority" 13 and "where the parent places the child under the

effective authority of the teacher, the latter, and not the parent, should be the one

answerable for the torts committed while under his custody, for the very reason that the

parent is not supposed to interfere with the discipline of the school nor with the

authority and supervision of the teacher while the child is under instruction." The

school itself, likewise, has to respond for the fault or negligence of its school head and

teachers under the same cited article. 14

5. The lower court therefore erred in law in absolving defendants-school officials on the

ground that they could be held liable under Article 2180, Civil Code, only if the student

who inflicted the fatal fistblows on his classmate and victim "lived and boarded with his

teacher or the other defendants officials of the school." As stated above, the phrase used

in the cited article — "so long as (the students) remain in their custody" means the

protective and supervisory custody that the school and its heads and teachers exercise

over the pupils and students for as long as they are at attendance in the school,

including recess time. There is nothing in the law that requires that for such liability to

attach the pupil or student who commits the tortious act must live and board in the

school, as erroneously held by the lower court, and the dicta in Mercado (as well as

in Exconde) on which it relied, must now be deemed to have been set aside by the

present decision. .

6. Defendants Valenton and Quibulue as president and teacher-in-charge of the school

must therefore be held jointly and severally liable for the quasi-delict of their co-

defendant Daffon in the latter's having caused the death of his classmate, the deceased

Dominador Palisoc. The unfortunate death resulting from the fight between the

protagonists-students could have been avoided, had said defendants but complied with

their duty of providing adequate supervision over the activities of the students in the

school premises to protect their students from harm, whether at the hands of fellow

students or other parties. At any rate, the law holds them liable unless they relieve

themselves of such liability, in compliance with the last paragraph of Article 2180, Civil

Code, by "(proving) that they observed all the diligence of a good father of a family to

prevent damage." In the light of the factual findings of the lower court's decision, said

defendants failed to prove such exemption from liability. .

7. Plaintiffs-appellees' contention that the award of P6,000.00 as indemnity for the death

of their son should be increased to P12,000.00 as set by the Court in People vs.

Pantoja, 15 and observed in all death indemnity cases thereafter is well taken. The Court,

in Pantoja, after noting the decline in the purchasing power of the Philippine peso, had

expressed its "considered opinion that the amount of award of compensatory damages

for death caused by a crime or quasi-delict should now be P12,000.00." The Court thereby

adjusted the minimum amount of "compensatory damages for death caused by a crime

or quasi-delict" as per Article 2206, Civil Code, from the old stated minimum of P3,000.00

to P12,000.00, which amount is to be awarded "even though there may have been

mitigating circumstances" pursuant to the express provisions of said codal article. .

8. Plaintiffs-appellees' other claims on appeal that the lower court should have awarded

exemplary damages and imposed legal interest on the total damages awarded, besides

increasing the award of attorney's fees all concern matters that are left by law to the

discretion of the trial court and the Court has not been shown any error or abuse in the

exercise of such discretion on the part of the trial court. 16 Decisive here is the touchstone

provision of Article 2231, Civil Code, that "In quasi-delicts, exemplary damages may be

granted if the defendant acted with gross negligence." No gross negligence on the part of

defendants was found by the trial court to warrant the imposition of exemplary

damages, as well as of interest and increased attorney's fees, and the Court has not been

shown in this appeal any compelling reason to disturb such finding. .

ACCORDINGLY, the judgment appealed from is modified so as to provide as follows: .

1. Sentencing the defendants Virgilio L. Daffon, TeodosioV. Valenton and Santiago M.

Quibulue jointly and severallyto pay plaintiffs as heirs of the deceased Dominador Palisoc

(a) P12,000.00 for the death of Dominador Palisoc; (b) P3,375.00 for actual and

compensatory expenses; (c) P5,000.00 for moral, damages; (d) P10,000.00 for loss of

earning power and (e) P2,000.00 for attorney's fee, plus the costs of this action in both

instances; 2. absolvingdefendant Antonio C. Brillantes from the complaint; and 3.

dismissing defendants' counterclaims. .

Concepcion, C.J., Villamor and Makasiar, JJ., concur. .

Dizon, J., took no part. .

REYES, J.B.L., J., concurring: .

I concur with the opinion of Mr. Justice Teehankee but would like to clarify that the

argument of the dissenting opinion of the effect that the responsibility of teachers and

school officers under Articles 2180 should be limited to pupils who are minors (below

the age of majority) is not in accord with the plain text of the law. Article 2180 of the

Civil Code of the Philippines is to the following effect: .

The obligation imposed by article 2176 is demandable not only for one's

own acts or omissions, but also for those of persons for whom one is

responsible. .

The father and, in case of his death or incapacity, the mother, are

responsible for the damages caused by the minor children who live in

their company. .

Guardians are liable for damages caused by the minors or incapacitated

persons who are under their authority and live in their company. .

The owners and managers of an establishment or enterprise are likewise

responsible for damages caused by their employees in the service of the

branches in which the latter are employed or on the occasion of their

functions. .

Employers shall be liable for the damages caused by their employees and

household helpers acting within the scope of their assigned tasks, even

though the former are not engaged in any business or industry. .

The State is responsible in like manner when it acts through a special

agent; but not when the damage has been caused by the official to whom

the task done properly pertains, in which case what is provided in article

2176 shall be applicable. .

Lastly, teachers or heads of establishments of arts and trades shall be

liable for damages caused by their pupils and students or apprentices, so

long as they remain in their custody.

The responsibility treated of in this article shall cease when the persons

herein mentioned prove that they observe all the diligence of a good

father of a family to prevent damages.

Examination of the article shows that where the responsibility prescribed therein is

limited to illegal acts during minority, the article expressly so provides, as in the case of

the parents and of the guardians. It is natural to expect that if the law had intended to

similarly restrict the civil responsibility of the other categories of persons enumerated in

the article, it would have expressly so stated. The fact that it has not done so indicates

an intent that the liability be not restricted to the case of persons under age. Further, it is

not without significance that the teachers and heads of scholarly establishments are not

grouped with parents and guardians but ranged with owners and managers of

enterprises, employers and the state, as to whom no reason is discernible to imply that

they should answer only for minors. .

Giorgi, in his well-known "Teoria de las Obligaciones en el Derecho Moderno", Volume

5, page 404, No. 272 (Sp. Ed.), after noting the split among commentators on the point it

issue, observes with considerable cogency that —

272. Ante esta variedad de opiniones, ninguna de las cuales se funds en

argumentos merecedores de seria ponderacion, no es facil tomar un

partido. Esto no obstante, debiendo manisfestar nuestra opinion, nos

acercamos a la de los que no estiman necesaria la menor edad del

discipulo o del aprendiz; porque si el aforismo ubi voluit dixit, ubi noluit

tacuit, no es siempre argumento seguro para interpreter la ley, es infalible

cuanto se refiere a una misma disposicion relative a varios casos. Y tal es

el art. 1.153. Lo que haya establecido important poco si, elevandones a los

principios de razon, puede dudarse de la oportunidad de semajante

diferencia; porque la voluntad cierta del legislador prevalecein iure

condito a cualquier otra consideracion. Por otra parte, si bien se considera,

no puede parecer extrano o absurdo el suponer que un discipulo y un

aprendiz, aunque mayores de edad, acepten voluntariamente la entera

vigilancia de su preceptor mientras dura la educacion. Ni parece dudoso

desde el momento que los artesanos y los preceptores deben, al par de los

padres, responder civilmente de los daños comitidos por sus discipulos,

aun cuando estos esten faltos de discernimiento.

Similarly, Planiol-Ripert, in their "Droit Civil Pratique," Volume VI, No. 635 (Spanish

version), say that —

635. Personas de quien responde. — Si bien la responsibilidad del maestro

es originalmente una estension de la de los padres (1), el art. 1384 no

especifica que los alumnos y aprendices han de ser menores de edad, por

lo que la presuncion de culpa funcionara aun cuando sean mayores (2);

pero, la vigilancia no tendra que ser ejercida en iguales terminos. Aun

respecto a los menores variara segun la edad, extremo que tendra que

ternese en ceunta a los fines de apreciar si el maestro ha podido impedir el

acto nocivo o no. .

I submit, finally, that while in the case of parents and guardians, their authority and

supervision over the children and wards end by law upon the latter reaching majority

age, the authority and custodial supervision over pupils exist regardless of the age of

the latter. A student over twenty-one, by enrolling and attending a school, places

himself under the custodial supervision and disciplinary authority of the school

authorities, which is the basis of the latter's correlative responsibility for his torts,

committed while under such authority. Of course, the teachers' control is not as plenary

as when the student is a minor; but that circumstance can only affect the decree of the

responsibility but cannot negate the existence thereof. It is only a factor to be

appreciated in determining whether or not the defendant has exercised due diligence in

endeavoring to prevent the injury, as prescribed in the last paragraph of Article 2180. .

Barredo, J., concurs.

Separate Opinions

MAKALINTAL, J., dissenting:

I vote to affirm the decision appealed from. I see no reason to depart from the doctrine

laid down by this Court inMercado v. Court of Appeals, 108 Phil. 414, where the clause "so

long as they remain in their custody" used in Article 2180 of the Civil Code was

construed as referring to a "situation where the pupil lives and boards with the teacher,

such that the (latter's) control, direction and influence on the pupil supersedes those of

the parents." I think it is highly unrealistic and conducive to unjust results, considering

the size of the enrollment in many of our educational institutions, academic and non-

academic, as well as the temper, attitudes and often destructive activism of the students,

to hold their teachers and/or the administrative heads of the schools directly liable for

torts committed by them. When even the school authorities find themselves besieged,

beleaguered and attacked, and unable to impose the traditional disciplinary measures

formerly recognized as available to them, such as suspension or outright expulsion of

the offending students, it flies in the face of logic and reality to consider such students,

merely from the fact of enrollment and class attendance, as "in the custody" of the

teachers or school heads within the meaning of the statute, and to hold the latter liable

unless they can prove that they have exercised "all the diligence of a good father of the

family to prevent damage." Article 2180, if applied as appellants construe it, would be

bad law. It would demand responsibility without commensurate authority, rendering

teachers and school heads open to damage suits for causes beyond their power to

control. Present conditions being what they are, I believe the restrictive interpretation of

the aforesaid provision enunciated in Mercado should be maintained. .

With particular reference to the case at bar, one other factor constrains me to dissent.

The opinion of the majority states: "Here, the parents of the student at fault, defendant

Daffon, are not involved, since Daffon was already of age at the time of the tragic

incident." This statement is of course in accordance with Article 2180, which says that

"the father and, in case of his death or incapacity, the mother, are responsible for the

damages caused by the minor children who live in their company." Note that for

parental responsibility to arise the children must be minors who live in their company.

If, as stated also in the opinion of the majority, "the rationale of (the) liability of school

heads and teachers for the tortious acts of their pupils and students, so long as they

remain in their custody, is that they stand, to a certain extent, as to their pupils and

students, in loco parentis and are called upon to exercise reasonable supervision over the

conduct of the child," then it stands to reason that (1) the clause "so long as they remain

in their custody" as used in reference to teachers and school heads should be equated

with the phrase "who live in their company" as used in reference to parents; and (2) that

just as parents are not responsible for damages caused by their children who are no

longer minors, so should teachers and school heads be exempt from liability for the

tortious acts of their students in the same age category. I find no justification, either in

the law itself or in justice and equity, to make a substitute parent liable where the real

parent would be free from liability. .

Zaldivar, Castro and Fernando, JJ., concur.

Separate Opinions

MAKALINTAL, J., dissenting:

I vote to affirm the decision appealed from. I see no reason to depart from the doctrine

laid down by this Court inMercado v. Court of Appeals, 108 Phil. 414, where the clause "so

long as they remain in their custody" used in Article 2180 of the Civil Code was

construed as referring to a "situation where the pupil lives and boards with the teacher,

such that the (latter's) control, direction and influence on the pupil supersedes those of

the parents." I think it is highly unrealistic and conducive to unjust results, considering

the size of the enrollment in many of our educational institutions, academic and non-

academic, as well as the temper, attitudes and often destructive activism of the students,

to hold their teachers and/or the administrative heads of the schools directly liable for

torts committed by them. When even the school authorities find themselves besieged,

beleaguered and attacked, and unable to impose the traditional disciplinary measures

formerly recognized as available to them, such as suspension or outright expulsion of

the offending students, it flies in the face of logic and reality to consider such students,

merely from the fact of enrollment and class attendance, as "in the custody" of the

teachers or school heads within the meaning of the statute, and to hold the latter liable

unless they can prove that they have exercised "all the diligence of a good father of the

family to prevent damage." Article 2180, if applied as appellants construe it, would be

bad law. It would demand responsibility without commensurate authority, rendering

teachers and school heads open to damage suits for causes beyond their power to

control. Present conditions being what they are, I believe the restrictive interpretation of

the aforesaid provision enunciated in Mercado should be maintained. .

With particular reference to the case at bar, one other factor constrains me to dissent.

The opinion of the majority states: "Here, the parents of the student at fault, defendant

Daffon, are not involved, since Daffon was already of age at the time of the tragic

incident." This statement is of course in accordance with Article 2180, which says that

"the father and, in case of his death or incapacity, the mother, are responsible for the

damages caused by the minor children who live in their company." Note that for

parental responsibility to arise the children must be minors who live in their company.

If, as stated also in the opinion of the majority, "the rationale of (the) liability of school

heads and teachers for the tortious acts of their pupils and students, so long as they

remain in their custody, is that they stand, to a certain extent, as to their pupils and

students, in loco parentis and are called upon to exercise reasonable supervision over the

conduct of the child," then it stands to reason that (1) the clause "so long as they remain

in their custody" as used in reference to teachers and school heads should be equated

with the phrase "who live in their company" as used in reference to parents; and (2) that

just as parents are not responsible for damages caused by their children who are no

longer minors, so should teachers and school heads be exempt from liability for the

tortious acts of their students in the same age category. I find no justification, either in

the law itself or in justice and equity, to make a substitute parent liable where the real

parent would be free from liability. .

Zaldivar, Castro and Fernando, JJ., concur.

JOSE S. AMADORA, LORETA A. AMADORA, JOSE A. AMADORA JR., NORMA

A. YLAYA PANTALEON A. AMADORA, JOSE A. AMADORA III, LUCY A.

AMADORA, ROSALINDA A. AMADORA, PERFECTO A. AMADORA, SERREC A.

AMADORA, VICENTE A. AMADORA and MARIA TISCALINA A.

AMADORA,petitioners

vs.

HONORABLE COURT OF APPEALS, COLEGIO DE SAN JOSE-RECOLETOS,

VICTOR LLUCH SERGIO P. DLMASO JR., CELESTINO DICON, ANIANO

ABELLANA, PABLITO DAFFON thru his parents and natural guardians, MR. and

MRS. NICANOR GUMBAN, and ROLANDO VALENCIA, thru his guardian, A.

FRANCISCO ALONSO, respondents.

Jose S. Amadora & Associates for petitioners.

Padilla Law Office for respondents.

CRUZ, J.:

Like any prospective graduate, Alfredo Amadora was looking forward to the

commencement exercises where he would ascend the stage and in the presence of his

relatives and friends receive his high school diploma. These ceremonies were scheduled

on April 16, 1972. As it turned out, though, fate would intervene and deny him that

awaited experience. On April 13, 1972, while they were in the auditorium of their

school, the Colegio de San Jose-Recoletos, a classmate, Pablito Damon, fired a gun that

mortally hit Alfredo, ending all his expectations and his life as well. The victim was

only seventeen years old. 1

Daffon was convicted of homicide thru reckless imprudence . 2 Additionally, the herein

petitioners, as the victim's parents, filed a civil action for damages under Article 2180 of

the Civil Code against the Colegio de San Jose-Recoletos, its rector the high school

principal, the dean of boys, and the physics teacher, together with Daffon and two other

students, through their respective parents. The complaint against the students was later

dropped. After trial, the Court of First Instance of Cebu held the remaining defendants

liable to the plaintiffs in the sum of P294,984.00, representing death compensation, loss

of earning capacity, costs of litigation, funeral expenses, moral damages, exemplary

damages, and attorney's fees . 3On appeal to the respondent court, however, the

decision was reversed and all the defendants were completely absolved . 4

In its decision, which is now the subject of this petition for certiorari under Rule 45 of the

Rules of Court, the respondent court found that Article 2180 was not applicable as the

Colegio de San Jose-Recoletos was not a school of arts and trades but an academic

institution of learning. It also held that the students were not in the custody of the

school at the time of the incident as the semester had already ended, that there was no

clear identification of the fatal gun and that in any event the defendant, had exercised

the necessary diligence in preventing the injury. 5

The basic undisputed facts are that Alfredo Amadora went to the San Jose-Recoletos on

April 13, 1972, and while in its auditorium was shot to death by Pablito Daffon, a

classmate. On the implications and consequences of these facts, the parties sharply

disagree.

The petitioners contend that their son was in the school to show his physics experiment

as a prerequisite to his graduation; hence, he was then under the custody of the private

respondents. The private respondents submit that Alfredo Amadora had gone to the

school only for the purpose of submitting his physics report and that he was no longer

in their custody because the semester had already ended.

There is also the question of the identity of the gun used which the petitioners consider

important because of an earlier incident which they claim underscores the negligence of

the school and at least one of the private respondents. It is not denied by the

respondents that on April 7, 1972, Sergio Damaso, Jr., the dean of boys, confiscated from

Jose Gumban an unlicensed pistol but later returned it to him without making a report

to the principal or taking any further action . 6 As Gumban was one of the companions

of Daffon when the latter fired the gun that killed Alfredo, the petitioners contend that

this was the same pistol that had been confiscated from Gumban and that their son

would not have been killed if it had not been returned by Damaso. The respondents

say, however, that there is no proof that the gun was the same firearm that killed

Alfredo.

Resolution of all these disagreements will depend on the interpretation of Article 2180

which, as it happens, is invoked by both parties in support of their conflicting positions.

The pertinent part of this article reads as follows:

Lastly, teachers or heads of establishments of arts and trades shall be

liable for damages caused by their pupils and students or apprentices so

long as they remain in their custody.

Three cases have so far been decided by the Court in connection with the above-quoted

provision, to wit: Exconde v. Capuno 7 Mercado v. Court of Appeals, 8 and Palisoc v.

Brillantes. 9 These will be briefly reviewed in this opinion for a better resolution of the

case at bar.

In the Exconde Case, Dante Capuno, a student of the Balintawak Elementary School and

a Boy Scout, attended a Rizal Day parade on instructions of the city school supervisor.

After the parade, the boy boarded a jeep, took over its wheel and drove it so recklessly

that it turned turtle, resulting in the death of two of its passengers. Dante was found

guilty of double homicide with reckless imprudence. In the separate civil action flied

against them, his father was held solidarily liable with him in damages under Article

1903 (now Article 2180) of the Civil Code for the tort committed by the 15-year old boy.

This decision, which was penned by Justice Bautista Angelo on June 29,1957, exculpated

the school in an obiter dictum (as it was not a party to the case) on the ground that it was

riot a school of arts and trades. Justice J.B.L. Reyes, with whom Justices Sabino Padilla

and Alex Reyes concurred, dissented, arguing that it was the school authorities who

should be held liable Liability under this rule, he said, was imposed on (1) teachers in

general; and (2) heads of schools of arts and trades in particular. The modifying clause

"of establishments of arts and trades" should apply only to "heads" and not "teachers."

Exconde was reiterated in the Mercado Case, and with an elaboration. A student cut a

classmate with a razor blade during recess time at the Lourdes Catholic School in

Quezon City, and the parents of the victim sued the culprits parents for damages.

Through Justice Labrador, the Court declared in another obiter (as the school itself had

also not been sued that the school was not liable because it was not an establishment of

arts and trades. Moreover, the custody requirement had not been proved as this

"contemplates a situation where the student lives and boards with the teacher, such that

the control, direction and influences on the pupil supersede those of the parents."

Justice J.B.L. Reyes did not take part but the other members of the court concurred in

this decision promulgated on May 30, 1960.

In Palisoc vs. Brillantes, decided on October 4, 1971, a 16-year old student was killed by a

classmate with fist blows in the laboratory of the Manila Technical Institute. Although

the wrongdoer — who was already of age — was not boarding in the school, the head

thereof and the teacher in charge were held solidarily liable with him. The Court

declared through Justice Teehankee:

The phrase used in the cited article — "so long as (the students) remain in

their custody" — means the protective and supervisory custody that the

school and its heads and teachers exercise over the pupils and students for

as long as they are at attendance in the school, including recess time.

There is nothing in the law that requires that for such liability to attach,

the pupil or student who commits the tortious act must live and board in

the school, as erroneously held by the lower court, and the dicta in Mercado

(as well as in Exconde) on which it relied, must now be deemed to have

been set aside by the present decision.

This decision was concurred in by five other members, 10 including Justice J.B.L. Reyes,

who stressed, in answer to the dissenting opinion, that even students already of age

were covered by the provision since they were equally in the custody of the school and

subject to its discipline. Dissenting with three others, 11 Justice Makalintal was for

retaining the custody interpretation in Mercado and submitted that the rule should

apply only to torts committed by students not yet of age as the school would be acting

only in loco parentis.

In a footnote, Justice Teehankee said he agreed with Justice Reyes' dissent in the

Exconde Case but added that "since the school involved at bar is a non-academic school,

the question as to the applicability of the cited codal provision to academic institutions

will have to await another case wherein it may properly be raised."

This is the case.

Unlike in Exconde and Mercado, the Colegio de San Jose-Recoletos has been directly

impleaded and is sought to be held liable under Article 2180; and unlike in Palisoc, it is

not a school of arts and trades but an academic institution of learning. The parties

herein have also directly raised the question of whether or not Article 2180 covers even

establishments which are technically not schools of arts and trades, and, if so, when the

offending student is supposed to be "in its custody."

After an exhaustive examination of the problem, the Court has come to the conclusion

that the provision in question should apply to all schools, academic as well as non-

academic. Where the school is academic rather than technical or vocational in nature,

responsibility for the tort committed by the student will attach to the teacher in charge

of such student, following the first part of the provision. This is the general rule. In the

case of establishments of arts and trades, it is the head thereof, and only he, who shall

be held liable as an exception to the general rule. In other words, teachers in general

shall be liable for the acts of their students except where the school is technical in

nature, in which case it is the head thereof who shall be answerable. Following the

canon of reddendo singula singulis"teachers" should apply to the words "pupils and

students" and "heads of establishments of arts and trades" to the word "apprentices."

The Court thus conforms to the dissenting opinion expressed by Justice J.B.L. Reyes in

Exconde where he said in part:

I can see no sound reason for limiting Art. 1903 of the Old Civil Code to

teachers of arts and trades and not to academic ones. What substantial

difference is there between them insofar as concerns the proper

supervision and vice over their pupils? It cannot be seriously contended

that an academic teacher is exempt from the duty of watching that his

pupils do not commit a tort to the detriment of third Persons, so long as

they are in a position to exercise authority and Supervision over the pupil.

In my opinion, in the phrase "teachers or heads of establishments of arts

and trades" used in Art. 1903 of the old Civil Code, the words "arts and

trades" does not qualify "teachers" but only "heads of establishments." The

phrase is only an updated version of the equivalent terms "preceptores y

artesanos" used in the Italian and French Civil Codes.

If, as conceded by all commentators, the basis of the presumption of

negligence of Art. 1903 in someculpa in vigilando that the parents, teachers,

etc. are supposed to have incurred in the exercise of their authority, it

would seem clear that where the parent places the child under the

effective authority of the teacher, the latter, and not the parent, should be

the one answerable for the torts committed while under his custody, for

the very reason/that the parent is not supposed to interfere with the

discipline of the school nor with the authority and supervision of the

teacher while the child is under instruction. And if there is no authority,

there can be no responsibility.

There is really no substantial distinction between the academic and the non-academic

schools insofar as torts committed by their students are concerned. The same vigilance

is expected from the teacher over the students under his control and supervision,

whatever the nature of the school where he is teaching. The suggestion in the Exconde

and Mercado Cases is that the provision would make the teacher or even the head of the

school of arts and trades liable for an injury caused by any student in its custody but if

that same tort were committed in an academic school, no liability would attach to the

teacher or the school head. All other circumstances being the same, the teacher or the

head of the academic school would be absolved whereas the teacher and the head of the

non-academic school would be held liable, and simply because the latter is a school of

arts and trades.

The Court cannot see why different degrees of vigilance should be exercised by the

school authorities on the basis only of the nature of their respective schools. There does

not seem to be any plausible reason for relaxing that vigilance simply because the

school is academic in nature and for increasing such vigilance where the school is non-

academic. Notably, the injury subject of liability is caused by the student and not by the

school itself nor is it a result of the operations of the school or its equipment. The injury

contemplated may be caused by any student regardless of the school where he is

registered. The teacher certainly should not be able to excuse himself by simply

showing that he is teaching in an academic school where, on the other hand, the head

would be held liable if the school were non-academic.

These questions, though, may be asked: If the teacher of the academic school is to be

held answerable for the torts committed by his students, why is it the head of the school

only who is held liable where the injury is caused in a school of arts and trades? And in

the case of the academic or non- technical school, why not apply the rule also to the

head thereof instead of imposing the liability only on the teacher?

The reason for the disparity can be traced to the fact that historically the head of the

school of arts and trades exercised a closer tutelage over his pupils than the head of the

academic school. The old schools of arts and trades were engaged in the training of

artisans apprenticed to their master who personally and directly instructed them on the

technique and secrets of their craft. The head of the school of arts and trades was such a

master and so was personally involved in the task of teaching his students, who usually

even boarded with him and so came under his constant control, supervision and

influence. By contrast, the head of the academic school was not as involved with his

students and exercised only administrative duties over the teachers who were the

persons directly dealing with the students. The head of the academic school had then

(as now) only a vicarious relationship with the students. Consequently, while he could

not be directly faulted for the acts of the students, the head of the school of arts and

trades, because of his closer ties with them, could be so blamed.

It is conceded that the distinction no longer obtains at present in view of the expansion

of the schools of arts and trades, the consequent increase in their enrollment, and the

corresponding diminution of the direct and personal contract of their heads with the

students. Article 2180, however, remains unchanged. In its present state, the provision

must be interpreted by the Court according to its clear and original mandate until the

legislature, taking into account the charges in the situation subject to be regulated, sees

fit to enact the necessary amendment.

The other matter to be resolved is the duration of the responsibility of the teacher or the

head of the school of arts and trades over the students. Is such responsibility co-

extensive with the period when the student is actually undergoing studies during the

school term, as contended by the respondents and impliedly admitted by the petitioners

themselves?

From a reading of the provision under examination, it is clear that while the custody

requirement, to repeat Palisoc v. Brillantes, does not mean that the student must be

boarding with the school authorities, it does signify that the student should be within

the control and under the influence of the school authorities at the time of the

occurrence of the injury. This does not necessarily mean that such, custody be co-

terminous with the semester, beginning with the start of classes and ending upon the

close thereof, and excluding the time before or after such period, such as the period of

registration, and in the case of graduating students, the period before the

commencement exercises. In the view of the Court, the student is in the custody of the

school authorities as long as he is under the control and influence of the school and

within its premises, whether the semester has not yet begun or has already ended.

It is too tenuous to argue that the student comes under the discipline of the school only

upon the start of classes notwithstanding that before that day he has already registered

and thus placed himself under its rules. Neither should such discipline be deemed

ended upon the last day of classes notwithstanding that there may still be certain

requisites to be satisfied for completion of the course, such as submission of reports,

term papers, clearances and the like. During such periods, the student is still subject to

the disciplinary authority of the school and cannot consider himself released altogether

from observance of its rules.

As long as it can be shown that the student is in the school premises in pursuance of a

legitimate student objective, in the exercise of a legitimate student right, and even in the

enjoyment of a legitimate student right, and even in the enjoyment of a legitimate

student privilege, the responsibility of the school authorities over the student continues.

Indeed, even if the student should be doing nothing more than relaxing in the campus

in the company of his classmates and friends and enjoying the ambience and

atmosphere of the school, he is still within the custody and subject to the discipline of

the school authorities under the provisions of Article 2180.

During all these occasions, it is obviously the teacher-in-charge who must answer for

his students' torts, in practically the same way that the parents are responsible for the

child when he is in their custody. The teacher-in-charge is the one designated by the

dean, principal, or other administrative superior to exercise supervision over the pupils

in the specific classes or sections to which they are assigned. It is not necessary that at

the time of the injury, the teacher be physically present and in a position to prevent it.

Custody does not connote immediate and actual physical control but refers more to the

influence exerted on the child and the discipline instilled in him as a result of such

influence. Thus, for the injuries caused by the student, the teacher and not the parent

shag be held responsible if the tort was committed within the premises of the school at

any time when its authority could be validly exercised over him.

In any event, it should be noted that the liability imposed by this article is supposed to

fall directly on the teacher or the head of the school of arts and trades and not on the

school itself. If at all, the school, whatever its nature, may be held to answer for the acts

of its teachers or even of the head thereof under the general principle of respondeat

superior, but then it may exculpate itself from liability by proof that it had exercised the

diligence of a bonus paterfamilias.

Such defense is, of course, also available to the teacher or the head of the school of arts

and trades directly held to answer for the tort committed by the student. As long as the

defendant can show that he had taken the necessary precautions to prevent the injury

complained of, he can exonerate himself from the liability imposed by Article 2180,

which also states that:

The responsibility treated of in this article shall cease when the Persons

herein mentioned prove that they observed all the diligence of a good

father of a family to prevent damages.

In this connection, it should be observed that the teacher will be held liable not only

when he is acting in loco parentis for the law does not require that the offending student

be of minority age. Unlike the parent, who wig be liable only if his child is still a minor,

the teacher is held answerable by the law for the act of the student under him regardless

of the student's age. Thus, in the Palisoc Case, liability attached to the teacher and the

head of the technical school although the wrongdoer was already of age. In this sense,

Article 2180 treats the parent more favorably than the teacher.

The Court is not unmindful of the apprehensions expressed by Justice Makalintal in his

dissenting opinion in Palisoc that the school may be unduly exposed to liability under

this article in view of the increasing activism among the students that is likely to cause

violence and resulting injuries in the school premises. That is a valid fear, to be sure.

Nevertheless, it should be repeated that, under the present ruling, it is not the school

that will be held directly liable. Moreover, the defense of due diligence is available to it

in case it is sought to be held answerable as principal for the acts or omission of its head

or the teacher in its employ.

The school can show that it exercised proper measures in selecting the head or its

teachers and the appropriate supervision over them in the custody and instruction of

the pupils pursuant to its rules and regulations for the maintenance of discipline among

them. In almost all cases now, in fact, these measures are effected through the assistance

of an adequate security force to help the teacher physically enforce those rules upon the

students. Ms should bolster the claim of the school that it has taken adequate steps to

prevent any injury that may be committed by its students.

A fortiori, the teacher himself may invoke this defense as it would otherwise be unfair to

hold him directly answerable for the damage caused by his students as long as they are

in the school premises and presumably under his influence. In this respect, the Court is

disposed not to expect from the teacher the same measure of responsibility imposed on

the parent for their influence over the child is not equal in degree. Obviously, the parent

can expect more obedience from the child because the latter's dependence on him is

greater than on the teacher. It need not be stressed that such dependence includes the

child's support and sustenance whereas submission to the teacher's influence, besides

being coterminous with the period of custody is usually enforced only because of the

students' desire to pass the course. The parent can instill more las discipline on the child

than the teacher and so should be held to a greater accountability than the teacher for

the tort committed by the child.

And if it is also considered that under the article in question, the teacher or the head of

the school of arts and trades is responsible for the damage caused by the student or

apprentice even if he is already of age — and therefore less tractable than the minor —

then there should all the more be justification to require from the school authorities less

accountability as long as they can prove reasonable diligence in preventing the injury.

After all, if the parent himself is no longer liable for the student's acts because he has

reached majority age and so is no longer under the former's control, there is then all the

more reason for leniency in assessing the teacher's responsibility for the acts of the

student.

Applying the foregoing considerations, the Court has arrived at the following

conclusions:

1. At the time Alfredo Amadora was fatally shot, he was still in the custody of the

authorities of Colegio de San Jose-Recoletos notwithstanding that the fourth year

classes had formally ended. It was immaterial if he was in the school auditorium to

finish his physics experiment or merely to submit his physics report for what is

important is that he was there for a legitimate purpose. As previously observed, even

the mere savoring of the company of his friends in the premises of the school is a

legitimate purpose that would have also brought him in the custody of the school

authorities.

2. The rector, the high school principal and the dean of boys cannot be held liable

because none of them was the teacher-in-charge as previously defined. Each of them

was exercising only a general authority over the student body and not the direct control

and influence exerted by the teacher placed in charge of particular classes or sections

and thus immediately involved in its discipline. The evidence of the parties does not

disclose who the teacher-in-charge of the offending student was. The mere fact that

Alfredo Amadora had gone to school that day in connection with his physics report did

not necessarily make the physics teacher, respondent Celestino Dicon, the teacher-in-

charge of Alfredo's killer.

3. At any rate, assuming that he was the teacher-in-charge, there is no showing that

Dicon was negligent in enforcing discipline upon Daffon or that he had waived

observance of the rules and regulations of the school or condoned their non-observance.

His absence when the tragedy happened cannot be considered against him because he

was not supposed or required to report to school on that day. And while it is true that

the offending student was still in the custody of the teacher-in-charge even if the latter

was physically absent when the tort was committed, it has not been established that it

was caused by his laxness in enforcing discipline upon the student. On the contrary, the

private respondents have proved that they had exercised due diligence, through the

enforcement of the school regulations, in maintaining that discipline.

4. In the absence of a teacher-in-charge, it is probably the dean of boys who should be

held liable especially in view of the unrefuted evidence that he had earlier confiscated

an unlicensed gun from one of the students and returned the same later to him without

taking disciplinary action or reporting the matter to higher authorities. While this was

clearly negligence on his part, for which he deserves sanctions from the school, it does

not necessarily link him to the shooting of Amador as it has not been shown that he

confiscated and returned pistol was the gun that killed the petitioners' son.

5. Finally, as previously observed, the Colegio de San Jose-Recoletos cannot be held

directly liable under the article because only the teacher or the head of the school of arts

and trades is made responsible for the damage caused by the student or apprentice.

Neither can it be held to answer for the tort committed by any of the other private

respondents for none of them has been found to have been charged with the custody of

the offending student or has been remiss in the discharge of his duties in connection

with such custody.

In sum, the Court finds under the facts as disclosed by the record and in the light of the

principles herein announced that none of the respondents is liable for the injury

inflicted by Pablito Damon on Alfredo Amadora that resulted in the latter's death at the

auditorium of the Colegio de San Jose-Recoletos on April 13, 1972. While we deeply

sympathize with the petitioners over the loss of their son under the tragic circumstances

here related, we nevertheless are unable to extend them the material relief they seek, as

a balm to their grief, under the law they have invoked.

WHEREFORE, the petition is DENIED, without any pronouncement as to costs. It is so

ordered.

FEDERICO YLARDE and ADELAIDA DORONIO petitioners,

vs.

EDGARDO AQUINO, MAURO SORIANO and COURT OF APPEALS, respondents.

Buenaventura C. Evangelista for petitioners.

Modesto V. Cabanela for respondent Edgardo Aquino.

Manuel P. Pastor for respondent Mauro Soriano.

GANCAYCO, J.:

In this petition for review on certiorari seeking the reversal of the decision of the Court

of Appeals in CA-G.R. No. 36390-R entitled "Federico Ylarde, et al. vs. Edgardo Aquino,

et al.," a case which originated from the Court of First Instance of Pangasinan, We are

again caned upon determine the responsibility of the principals and teachers towards

their students or pupils.

In 1963, private respondent Mariano Soriano was the principal of the Gabaldon Primary

School, a public educational institution located in Tayug, Pangasinan-Private

respondent Edgardo Aquino was a teacher therein. At that time, the school was fittered

with several concrete blocks which were remnants of the old school shop that was

destroyed in World War II. Realizing that the huge stones were serious hazards to the

schoolchildren, another teacher by the name of Sergio Banez started burying them one

by one as early as 1962. In fact, he was able to bury ten of these blocks all by himself.

Deciding to help his colleague, private respondent Edgardo Aquino gathered eighteen

of his male pupils, aged ten to eleven, after class dismissal on October 7, 1963. Being

their teacher-in-charge, he ordered them to dig beside a one-ton concrete block in order

to make a hole wherein the stone can be buried. The work was left unfinished. The

following day, also after classes, private respondent Aquino called four of the original

eighteen pupils to continue the digging. These four pupils — Reynaldo Alonso,

Francisco Alcantara, Ismael Abaga and Novelito Ylarde, dug until the excavation was

one meter and forty centimeters deep. At this point, private respondent Aquino alone

continued digging while the pupils remained inside the pit throwing out the loose soil

that was brought about by the digging.

When the depth was right enough to accommodate the concrete block, private

respondent Aquino and his four pupils got out of the hole. Then, said private

respondent left the children to level the loose soil around the open hole while he went

to see Banez who was about thirty meters away. Private respondent wanted to borrow

from Banez the key to the school workroom where he could get some rope. Before

leaving. , private respondent Aquino allegedly told the children "not to touch the

stone."

A few minutes after private respondent Aquino left, three of the four kids, Alonso,

Alcantara and Ylarde, playfully jumped into the pit. Then, without any warning at all,

the remaining Abaga jumped on top of the concrete block causing it to slide down

towards the opening. Alonso and Alcantara were able to scramble out of the excavation

on time but unfortunately fo Ylarde, the concrete block caught him before he could get

out, pinning him to the wall in a standing position. As a result thereof, Ylarde sustained

the following injuries:

1. Contusion with hematoma, left inguinal region and suprapubic region.

2. Contusion with ecchymosis entire scrotal region.

3. Lacerated wound, left lateral aspect of penile skin with phimosis

4. Abrasion, gluteal region, bilateral.

5. Intraperitoneal and extrapertitoneal extravasation of blood and urine

about 2 liters.

6. Fracture, simple, symphesis pubis

7. Ruptured (macerated) urinary bladder with body of bladder almost

entirely separated from its neck.

REMARKS:

1. Above were incurred by crushing injury.

2. Prognosis very poor.

(Sgd.)

MELQUIADES A.

BRAVO

Physic

ian on

Duty. 1

Three days later, Novelito Ylarde died.

Ylarde's parents, petitioners in this case, filed a suit for damages against both private

respondents Aquino and Soriano. The lower court dismissed the complaint on the

following grounds: (1) that the digging done by the pupils is in line with their course

called Work Education; (2) that Aquino exercised the utmost diligence of a very

cautious person; and (3) that the demise of Ylarde was due to his own reckless

imprudence. 2

On appeal, the Court of Appeals affirmed the Decision of the lower court.

Petitioners base their action against private respondent Aquino on Article 2176 of the

Civil Code for his alleged negligence that caused their son's death while the complaint

against respondent Soriano as the head of school is founded on Article 2180 of the same

Code.

Article 2176 of the Civil Code provides:

Art. 2176. Whoever by act or omission causes damage to another, there

being fault or negligence, is obliged to pay for the damage done. Such

fault or negligence, if there is no pre- existing contractual relation between

the parties, is called a quasi-delict and is governed by the provisions of

this Chapter.

On the other hand, the applicable provision of Article 2180 states:

Art. 2180. x x x

xxx xxx xxx

Lastly, teachers or heads of establishments of arts and trades shall be

liable for damages caused by their pupils and students or apprentices, so

long as they remain in their custody. 3

The issue to be resolved is whether or not under the cited provisions, both private

respondents can be held liable for damages.

As regards the principal, We hold that he cannot be made responsible for the death of

the child Ylarde, he being the head of an academic school and not a school of arts and

trades. This is in line with Our ruling in Amadora vs. Court of Appeals, 4 wherein this

Court thoroughly discussed the doctrine that under Article 2180 of the Civil Code, it is

only the teacher and not the head of an academic school who should be answerable for

torts committed by their students. This Court went on to say that in a school of arts and

trades, it is only the head of the school who can be held liable. In the same case, We

explained:

After an exhaustive examination of the problem, the Court has come to

the conclusion that the provision in question should apply to all schools,

academic as well as non-academic. Where the school is academic rather

than technical or vocational in nature, responsibility for the tort

committed by the student will attach to the teacher in charge of such

student, following the first part of the provision. This is the general rule.

In the case of establishments of arts and trades, it is the head thereof, and

only he, who shall be held liable as an exception to the general rule. In

other words, teachers in general shall be liable for the acts of their

students except where the school is technical in nature, in which case it is

the head thereof who shall be answerable. Following the canon of reddendo

singula sinquilis 'teachers' should apply to the words "pupils and students'

and 'heads of establishments of arts and trades to the word "apprentices."

Hence, applying the said doctrine to this case, We rule that private respondent Soriano,

as principal, cannot be held liable for the reason that the school he heads is an academic

school and not a school of arts and trades. Besides, as clearly admitted by private

respondent Aquino, private respondent Soriano did not give any instruction regarding

the digging.

From the foregoing, it can be easily seen that private respondent Aquino can be held

liable under Article 2180 of the Civil Code as the teacher-in-charge of the children for

being negligent in his supervision over them and his failure to take the necessary

precautions to prevent any injury on their persons. However, as earlier pointed out,

petitioners base the alleged liability of private respondent Aquino on Article 2176 which

is separate and distinct from that provided for in Article 2180.

With this in mind, the question We need to answer is this: Were there acts and

omissions on the part of private respondent Aquino amounting to fault or negligence

which have direct causal relation to the death of his pupil Ylarde? Our answer is in the

affirmative. He is liable for damages.

From a review of the record of this case, it is very clear that private respondent Aquino

acted with fault and gross negligence when he: (1) failed to avail himself of services of

adult manual laborers and instead utilized his pupils aged ten to eleven to make an

excavation near the one-ton concrete stone which he knew to be a very hazardous task;

(2) required the children to remain inside the pit even after they had finished digging,

knowing that the huge block was lying nearby and could be easily pushed or kicked

aside by any pupil who by chance may go to the perilous area; (3) ordered them to level

the soil around the excavation when it was so apparent that the huge stone was at the

brink of falling; (4) went to a place where he would not be able to check on the

children's safety; and (5) left the children close to the excavation, an obviously attractive

nuisance.

The negligent act of private respondent Aquino in leaving his pupils in such a

dangerous site has a direct causal connection to the death of the child Ylarde. Left by

themselves, it was but natural for the children to play around. Tired from the strenuous

digging, they just had to amuse themselves with whatever they found. Driven by their

playful and adventurous instincts and not knowing the risk they were facing three of

them jumped into the hole while the other one jumped on the stone. Since the stone was

so heavy and the soil was loose from the digging, it was also a natural consequence that

the stone would fall into the hole beside it, causing injury on the unfortunate child

caught by its heavy weight. Everything that occurred was the natural and probable

effect of the negligent acts of private respondent Aquino. Needless to say, the child

Ylarde would not have died were it not for the unsafe situation created by private

respondent Aquino which exposed the lives of all the pupils concerned to real danger.

We cannot agree with the finding of the lower court that the injuries which resulted in

the death of the child Ylarde were caused by his own reckless imprudence, It should be

remembered that he was only ten years old at the time of the incident, As such, he is

expected to be playful and daring. His actuations were natural to a boy his age. Going

back to the facts, it was not only him but the three of them who jumped into the hole

while the remaining boy jumped on the block. From this, it is clear that he only did

what any other ten-year old child would do in the same situation.

In ruling that the child Ylarde was imprudent, it is evident that the lower court did not

consider his age and maturity. This should not be the case. The degree of care required

to be exercised must vary with the capacity of the person endangered to care for

himself. A minor should not be held to the same degree of care as an adult, but his

conduct should be judged according to the average conduct of persons of his age and

experience. 5 The standard of conduct to which a child must conform for his own

protection is that degree of care ordinarily exercised by children of the same age,

capacity, discretion, knowledge and experience under the same or similar

circumstances. 6 Bearing this in mind, We cannot charge the child Ylarde with reckless

imprudence.

The court is not persuaded that the digging done by the pupils can pass as part of their

Work Education. A single glance at the picture showing the excavation and the huge

concrete block 7 would reveal a dangerous site requiring the attendance of strong,

mature laborers and not ten-year old grade-four pupils. We cannot comprehend why

the lower court saw it otherwise when private respondent Aquino himself admitted

that there were no instructions from the principal requiring what the pupils were told

to do. Nor was there any showing that it was included in the lesson plan for their Work

Education. Even the Court of Appeals made mention of the fact that respondent Aquino

decided all by himself to help his co-teacher Banez bury the concrete remnants of the

old school shop. 8 Furthermore, the excavation should not be placed in the category of

school gardening, planting trees, and the like as these undertakings do not expose the

children to any risk that could result in death or physical injuries.

The contention that private respondent Aquino exercised the utmost diligence of a very

cautious person is certainly without cogent basis. A reasonably prudent person would

have foreseen that bringing children to an excavation site, and more so, leaving them

there all by themselves, may result in an accident. An ordinarily careful human being

would not assume that a simple warning "not to touch the stone" is sufficient to cast

away all the serious danger that a huge concrete block adjacent to an excavation would

present to the children. Moreover, a teacher who stands inloco parentis to his pupils

would have made sure that the children are protected from all harm in his company.

We close by categorically stating that a truly careful and cautious person would have

acted in all contrast to the way private respondent Aquino did. Were it not for his gross

negligence, the unfortunate incident would not have occurred and the child Ylarde

would probably be alive today, a grown- man of thirty-five. Due to his failure to take

the necessary precautions to avoid the hazard, Ylarde's parents suffered great anguish

all these years.

WHEREFORE, in view of the foregoing, the petition is hereby GRANTED and the

questioned judgment of the respondent court is REVERSED and SET ASIDE and

another judgment is hereby rendered ordering private respondent Edagardo Aquino to

pay petitioners the following:

(1) Indemnity for the death of Child Ylarde P30,000.00

(2) Exemplary damages 10,000.00

(3) Moral damages 20,000.00

SO ORDERED.

ST. FRANCIS HIGH SCHOOL, as represented by SPS. FERNANDO NANTES AND

ROSARIO LACANDULA, BENJAMIN ILUMIN, TIRSO DE CHAVEZ, LUISITO

VINAS, CONNIE ARQUIO AND PATRIA CADIZ, petitioners,

vs.

THE HONORABLE COURT OF APPEALS, ELEVENTH DIVISION and DR.

ROMULO CASTILLO and LILIA CADIZ, respondents.

Jose C. Flores, Jr. for petitioners.

Jovito E. Talabong for private respondents.

PARAS, J.:

This is a petition for review of the decision * of the Court of Appeals, the dispositive

portion of which reads:

WHEREFORE, the decision under appeal is hereby affirmed, with the following

modifications: (1) Exemplary damages in the amount of P20,000.00 are hereby

awarded to plaintiffs, in addition to the actual damages of P30,000.00, moral

damages of P20,000.00 and attorney's fees in the amount of P15,000.00 awarded

to plaintiffs in the decision under appeal; (2) St. Francis High School, represented

by the Spouses Fernando Nantes and Rosario Lacandula, and Benjamin Illumin,

are hereby held jointly and severally liable with defendants Connie Arquio, Tirso

de Chaves, Luisito Vinas and Patria Cadis for the payment to plaintiffs of the

abovementioned actual damages, moral damages, exemplary damages and

attorney's fees, and for costs; and (3) Defendants Yoly Jaro and Nida Aragones

are hereby absolved from liability, and the case against them, together with their

respective counterclaims, is hereby ordered dismissed.

SO ORDERED. (p. 60, Rollo)

The complaint alleged that Ferdinand Castillo, then a freshman student of Section 1-C

at the St. Francis High School, wanted to join a school picnic undertaken by Class I-B

and Class I-C at Talaan Beach, Sariaya, Quezon. Ferdinand's parents, respondents

spouses Dr. Romulo Castillo and Lilia Cadiz Castillo, because of short notice, did not

allow their son to join but merely allowed him to bring food to the teachers for the

picnic, with the directive that he should go back home after doing so. However, because

of persuasion of the teachers, Ferdinand went on with them to the beach.

During the picnic and while the students, including Ferdinand, were in the water, one

of the female teachers was apparently drowning. Some of the students, including

Ferdinand, came to her rescue, but in the process, it was Ferdinand himself who

drowned. His body was recovered but efforts to resuscitate him ashore failed. He was

brought to a certain Dr. Luna in Sariaya, Quezon and later to the Mt. Cannel General

Hospital where he was pronounced dead on arrival.

Thereupon, respondent spouses filed a complaint docketed as Civil Case No. 8834, in

the Regional Trial Court, Branch LVIII of Lucena City, against the St. Francis High

School, represented by the spouses Fernando Nantes and Rosario Lacandula, Benjamin

Illumin (its principal), and the teachers: Tirso de Chaves, Luisito Vinas, Connie Arquio,

Nida Aragones, Yoly Jaro, and Patria Cadiz, for Damages which respondents allegedly

incurred from the death of their 13-year old son, Ferdinand Castillo. Contending that

the death of their son was due to the failure of the petitioners to exercise the proper

diligence of a good father of the family in preventing their son's drowning, respondents

prayed of actual, moral and exemplary damages, attorney's fees and expenses for

litigation.

The trial court found in favor of the respondents and against petitioners-teachers

Arquio, de Chaves, Vinas, Aragones, Jaro and Cadiz, ordering all of them jointly and

severally to pay respondents the sum of P30,000.00 as actual damages, P20,000.00 as

moral damages, P15,000.00 as attorney's fees, and to pay the costs. The court a

quo reasoned:

Taking into consideration the evidence presented, this Court believes that the

defendant teachers namely: Connie Arquio, Luisito Vinas, Tirso de Chaves, Yoly

Jaro, Nida Aragones and Patria Cadiz had failed to exercise the diligence

required of them by law under the circumstances to guard against the harm they

had foreseen. (pp. 2930, Rollo)

x x x x x x x x x

While it is alleged that when defendants Yoly Jaro and Nida Aragones arrived at

the picnic site, the drowning incident had already occurred, such fact does not

and cannot excuse them from their liability. In fact, it could be said that by

coming late, they were remiss in their duty to safeguard the students. (p.

30, Rollo)

The students, young as they were then (12 to 13 years old), were easily attracted

to the sea without aforethought of the dangers it offers. Yet, the precautions and

reminders allegedly performed by the defendants-teachers definitely fell short of

the standard required by law under the circumstances. While the defendants-

teachers admitted that some parts of the sea where the picnic was held are deep,

the supposed lifeguards of the children did not even actually go to the water to

test the depth of the particular area where the children would swim. And indeed

the fears of the plaintiffs that the picnic area was dangerous was confirmed by

the fact that three persons during the picnic got drowned at the same time. Had

the defendant teachers made an actual and physical observation of the water

before they allowed the students to swim, they could have found out that the

area where the children were swimming was indeed dangerous. And not only

that, the male teachers who according to the female teachers were there to

supervise the children to ensure their safety were not even at the area where the

children were swimming. They were somewhere and as testified to by plaintiffs'

witness they were having a drinking spree. (pp. 55-56, Rollo)

On the other hand, the trial court dismissed the case against the St. Francis High School,

Benjamin Illumin and Aurora Cadorna. Said the court a quo:

As shown and adverted to above, this Court cannot find sufficient evidence

showing that the picnic was a school sanctioned one. Similarly no evidence has

been shown to hold defendants Benjamin Illumin and Aurora Cadorna

responsible for the death of Ferdinand Castillo together with the other defendant

teachers. It has been sufficiently shown that Benjamin Illumin had himself not

consented to the picnic and in fact he did not join it. On the other hand,

defendant Aurora Cadorna had then her own class to supervise and in fact she

was not amongst those allegedly invited by defendant Connie Arquio to

supervise class I-C to which Ferdinand Castillo belongs. (p. 30, Rollo)

Both petitioners and respondents appealed to the Court of Appeals. Respondents-

spouses assigned the following errors committed by the trial court:

1. The lower court erred in not declaring the defendant St. Francis High School

and its administrator/principal Benjamin Illumin as equally liable not only for its

approved co-curricular activities but also for those which they unreasonably

failed to exercise control and supervision like the holding of picnic in the

dangerous water of Talaan Beach, Sariaya, Quezon.

2. The lower court erred in not declaring the St. Francis High School and

principal Benjamin Illumin as jointly and solidarily liable with their co-

defendants-teachers Rosario Lacandula, et als., for the tragic death of Ferdinand

Castillo in a picnic at Talaan Beach, Sariaya, Quezon, last March 20, 1982.

3. The lower court erred in not declaring higher amount for actual and moral

damages for the untimely and tragic death of Ferdinand Castillo in favor of

plaintiffs-appellants against all the defendants. (pp. 56-57, Rollo)

The Court of Appeals ruled:

We find plaintiffs-appellants' submission well-taken.

Even were We to find that the picnic in question was not a school-sponsored

activity, nonetheless it cannot be gainsaid that the same was held under the

supervision of the teachers employed by the said school, particularly the teacher

in charge of Class I-C to whom the victim belonged, and those whom she invited

to help her in supervising the class during the picnic. Considering that the

court a quo found negligence on the part of the six defendants-teachers who, as

such, were charged with the supervision of the children during the picnic, the St.

Francis High School and the school principal, Benjamin Illumin, are liable under

Article 2176 taken together with the 1st, 4th and 5th paragraphs of Article 2180 of

the Civil Code. They cannot escape liability on the mere excuse that the picnic

was not an "extra-curricular activity of the St. Francis High School." We find from

the evidence that, as claimed by plaintiffs-appellants, the school principal had

knowledge of the picnic even from its planning stage and had even been invited

to attend the affair; and yet he did not express any prohibition against

undertaking the picnic, nor did he prescribe any precautionary measures to be

adopted during the picnic. At the least, We must find that the school and the

responsible school officials, particularly the principal, Benjamin Illumin, had

acquiesced to the holding of the picnic.

Under Article 2180, supra, the defendant school and defendant school principal

must be found jointly and severally liable with the defendants-teachers for the

damages incurred by the plaintiffs as a result of the death of their son. It is the

rule that in cases where the above-cited provisions find application, the

negligence of the employees in causing the injury or damage gives rise to a

presumption of negligence on the part of the owner and/or manager of the

establishment (in the present case, St. Francis High School and its principal); and

while this presumption is not conclusive, it may be overthrown only by clear and

convincing proof that the owner and/or manager exercised the care and diligence

of a good father of a family in the selection and/or supervision of the employee

or employees causing the injury or damage (in this case, the defendants-

teachers). The record does not disclose such evidence as would serve to

overcome the aforesaid presumption and absolve the St. Francis High School and

its principal from liability under the above-cited provisions.

As to the third assigned error interposed by plaintiffs-appellants, while We

cannot but commiserate with the plaintiffs for the tragedy that befell them in the

untimely death of their son Ferdinand Castillo and understand their suffering as

parents, especially the victim's mother who, according to appellants, suffered a

nervous breakdown as a result of the tragedy, We find that the amounts fixed by

the court a quo as actual damages and moral damages (P30,000.00 and P20,000.00,

respectively) are reasonable and are those which are sustained by the evidence

and the law.

However, We believe that exemplary or corrective damages in the amount of

P20,000.00 may and should be, as it is hereby, imposed in the present case by

way of example of correction for the public good, pursuant to Article 2229 of the

Civil Code. (pp. 57-59, Rollo)

On the other hand, petitioners-teachers assigned the following errors committed by the

trial court:

1. ". . . in finding the defendants Connie Arquio, Tirso de Chavez, Luisito Vinas,

Nida Aragones, Yoly Jaro and Patria Cadiz guilty of negligence and jointly and

severally liable for damages such finding not being supported by facts and

evidence.

2. ". . . in dismissing the counterclaim interposed by the defendants. (p. 59, Rollo)

On this score, respondent Court ruled:

The main thrust of defendants-appellants appeal is that plaintiffs, the parents of

the victim Ferdinand Castillo, were not able to prove by their evidence that they

did not give their son consent to join the picnic in question. However, We agree

with the trial court in its finding that whether or not the victim's parents had

given such permission to their son was immaterial to the determination of the

existence of liability on the part of the defendants for the damage incurred by the

plaintiffs-appellants as a result of the death of their son. What is material to such

a determination is whether or not there was negligence on the part of

defendants vis-a-visthe supervision of the victim's group during the picnic; and,

as correctly found by the trial court, an affirmative reply to this question has

been satisfactorily established by the evidence, as already pointed out.

However, We sustain defendants-appellants insofar as two of the defendants-

teachers, Yoly Jaro and Nida Aragones, are concerned. As to them, the trial court

found:

While it is alleged that when defendants Yoly Jaro and Nida Aragones

arrived at the picnic site, the drowning incident had already occurred,

such fact does not and cannot excuse them from their liability. In fact, it

could be said that by coming late, they were remiss in their duty to

safeguard the students.

The evidence shows that these two defendants had satisfactorily explained why

they were late in going to the picnic site, namely, that they had to attend to the

entrance examination being conducted by the school which is part of their duty

as teachers thereof. Since they were not at the picnic site during the occurrence in

question, it cannot be said that they had any participation in the negligence

attributable to the other defendants-teachers who failed to exercise diligence in

the supervision of the children during the picnic and which failure resulted in

the drowning of plaintiffs' son. Thus, We may not attribute any act or omission to

the two teachers, Yoly Jaro and Nida Aragones, as to make them liable for the

injury caused to the plaintiffs because of the death of their son resulting from his

drowning at the picnic. Accordingly, they must be absolved from any liability.

As to the second assigned error raised by defendants-appellants, We agree with

the court a quo that the counterclaim must be dismissed for lack of merit. (pp. 59-

60, Rollo)

Hence, this petition.

The issues presented by petitioners are:

A) Whether or not there was negligence attributable to the defendants which will

warrant the award of damages to the plaintiffs;

B) Whether or not Art. 2180, in relation to Art. 2176 of the New Civil Code is

applicable to the case at bar;

C) Whether or not the award of exemplary and moral damages is proper under

the circumstances surrounding the case at bar. (pp. 81-82, Rollo)

In the resolution of January 16, 1989, We gave due course to the petition and required

the parties to submit their respective memoranda.

The petition is impressed with merit.

If at all petitioners are liable for negligence, this is because of their own negligence or

the negligence of people under them. In the instant case however, as will be shown

hereunder, petitioners are neither guilty of their own negligence or guilty of the

negligence of those under them.

Hence, it cannot be said that they are guilty at all of any negligence. Consequently they

cannot be held liable for damages of any kind.

At the outset, it should be noted that respondent spouses, parents of the victim

Ferdinand, allowed their son to join the excursion.

Testimony of Dr. Castillo on cross exam. by Atty. Flores

Q Now, when your son asked you for money to buy food, did you not ask

him where he will bring this?

A I asked him where he was going, he answered, I am going to the picnic,

and when I asked him where, he did not answer, sir.

Q And after giving the money, you did not tell him anything more?

A No more, sir.

Q And after that you just learned that your son join the picnic?

A Yes, sir.

Q And you came to know of it after the news that your son was drowned

in the picnic came to you, is that correct?

A Yes, sir.

Q From 8:00 o'clock in the morning up to 12:00 o'clock noon of March 20,

1982, you did not know that your son join the picnic?

A No, sir, I did not know.

Q Did you not look for your son during that time?

A I am too busy with my profession, that is why I was not able, sir.

Q You did not ask your wife?

A I did not, sir.

Q And neither did your wife tell you that your son join the picnic?

A Later on after 12:00, sir.

Q And during that time you were too busy that you did not inquire

whether your son have joined that picnic?

A Yes, sir.

(TSN, pp. 16-17, hearing of April 2, 1984 witness Romulo Castillo)

The fact that he gave money to his son to buy food for the picnic even without knowing

where it will be held, is a sign of consent for his son to join the same. Furthermore.

Testimony of Dr. Lazaro on cross examination:

Q How did you conduct this mental and physical examination?

A I have interviewed several persons and the patient herself She even felt guilty

about the death of her son because she cooked adobo for him so he could join the

excursion where her son died of drowning.

Q Why were you able to say she was feeling guilty because she was the

one who personally cooked the adobo for her son?

A It was during the interview that I had gathered it from the patient

herself. She was very sorry had she not allowed her son to join the

excursion her son would have not drowned. I don't know if she actually

permitted her son although she said she cooked adobo so he could join.

(Emphasis Supplied) (TSN, p. 19, hearing of April 30, 1984, Dr. Lazaro —

witness).

Respondent Court of Appeals committed an error in applying Article 2180 of the Civil

Code in rendering petitioner school liable for the death of respondent's son.

Article 2180, par. 4 states that:

The obligation imposed by article 2176 is demandable not only for one's own acts

or omissions, but also for those of persons for whom one is responsible.

x x x x x x x x x

Employers shall be liable for the damages caused by their employees and

household helpers acting within the scope of their assigned tasks, even though

the former are not engaged in any business or industry.

Under this paragraph, it is clear that before an employer may be held liable for the

negligence of his employee, the act or omission which caused damage or prejudice must

have occurred while an employee was in the performance of his assigned tasks.

In the case at bar, the teachers/petitioners were not in the actual performance of their

assigned tasks. The incident happened not within the school premises, not on a school

day and most importantly while the teachers and students were holding a purely

private affair, a picnic. It is clear from the beginning that the incident happened while

some members of the I-C class of St. Francis High School were having a picnic at Talaan

Beach. This picnic had no permit from the school head or its principal, Benjamin Illumin

because this picnic is not a school sanctioned activity neither is it considered as an extra-

curricular activity.

As earlier pointed out by the trial court, mere knowledge by petitioner/principal Illumin

of the planning of the picnic by the students and their teachers does not in any way or

in any manner show acquiescence or consent to the holding of the same. The

application therefore of Article 2180 has no basis in law and neither is it supported by

any jurisprudence. If we were to affirm the findings of respondent Court on this score,

employers wig forever be exposed to the risk and danger of being hailed to Court to

answer for the misdeeds or omissions of the employees even if such act or omission he

committed while they are not in the performance of their duties.

Finally, no negligence could be attributable to the petitioners-teachers to warrant the

award of damages to the respondents-spouses.

Petitioners Connie Arquio the class adviser of I-C, the section where Ferdinand

belonged, did her best and exercised diligence of a good father of a family to prevent

any untoward incident or damages to all the students who joined the picnic.

In fact, Connie invited co-petitioners Tirso de Chavez and Luisito Vinas who are both

P.E. instructors and scout masters who have knowledge in First Aid application and

swimming. Moreover, even respondents' witness, Segundo Vinas, testified that "the

defendants (petitioners herein) had life savers especially brought by the defendants in

case of emergency." (p. 85, Rollo) The records also show that both petitioners Chavez

and Vinas did all what is humanly possible to save the child.

Testimony of Luisito Vinas on cross examination,

Q And when you saw the boy, Ferdinand Castillo, you approached the

boy and claim also having applied first aid on him?

A Yes, sir.

Q And while you were applying the so called first aid, the children were

covering you up or were surrounding you?

A Yes, sir.

Q You were rattled at that time, is it not?

A No, sir.

Q You mean you were in calm and peaceful condition?

A Yes, sir.

Q Despite the fact that the boy was no longer responding to your

application of first aid?

A Yes, sir.

Q You have never been disturbed, "nababahala" in the process of your

application of the first aid on the body of Ferdinand Castillo?

A No, sir, because we were attending to the application of first aid that we

were doing, sir.

Q After you have applied back to back pressure and which you claimed

the boy did not respond, were you not disturb anyway?

A I was disturbed during that time, sir.

Q For how many minutes have you applied the back to back pressure?

A From 9 to 11 times, sir.

Q You mean 9 to 11 times of having applied the pressure of your body on

the body of Ferdinand Castillo?

A Yes, sir.

Q Will you please describe how you applied a single act of back to back

pressure?

A This has been done by placing the boy lay first downwards, then the

face was a little bit facing right and doing it by massaging the back of the

child, sir." (TSN, pp. 32-35, hearing of July 30, 1984)

Testimony of Tirso de Chavez on direct examination

ATTY. FLORES:

Q Who actually applied the first aid or artificial respiration to the child?

A Myself, sir.

Q How did you apply the first aid to the guy?

A The first step that I took, with the help of Mr. Luisito Vinas, was I

applied back to back pressure and took notice of the condition of the child.

We placed the feet in a higher position, that of the head of the child, sir.

Q After you have placed the boy in that particular position, where the feet

were on a higher level than that of the head, what did you do next?

A The first thing that we did, particularly myself, was that after putting

the child in that position, I applied the back to back pressure and started

to massage from the waistline up, but I noticed that the boy was not

responding, sir.

Q For how long did you apply this back to back pressure on the boy?

A About 10 seconds, sir.

Q What about Mr. Vinas?

A Almost the same a little longer, for 15 seconds, sir.

Q After you noticed that the boy was not responding, what did you do?

A When we noticed that the boy was not responding, we changed the

position of the boy by placing the child facing upwards laying on the sand

then we applied the mouth to mouth resuscitation, sir. (pp. 92-93, Rollo)

With these facts in mind, no moral nor exemplary damages may be awarded in favor of

respondents-spouses. The case at bar does not fall under any of the grounds to grant

moral damages.

Art. 2217. Moral Damages include physical suffering, mental anguish, fright,

serious anxiety, besmirched reputation, wounded feelings, moral shock, social

humiliation, and similar injury. Though incapable of pecuniary

computation, moral damages may be recovered if they are the proximate result of the

defendant's wrongful act or omission.

Moreover, as already pointed out hereinabove, petitioners are not guilty of any fault or

negligence, hence, no moral damages can be assessed against them.

While it is true that respondents-spouses did give their consent to their son to join the

picnic, this does not mean that the petitioners were already relieved of their duty to

observe the required diligence of a good father of a family in ensuring the safety of the

children. But in the case at bar, petitioners were able to prove that they had exercised

the required diligence. Hence, the claim for moral or exemplary damages becomes

baseless.

PREMISES CONSIDERED, the questioned decision dated November 19, 1987, finding

petitioners herein guilty of negligence and liable for the death of Ferdinand Castillo and

awarding the respondents damages, is hereby SET ASIDE insofar as the petitioners

herein are concerned, but the portion of the said decision dismissing their counterclaim,

there being no merit, is hereby AFFIRMED.

SO ORDERED.

Sarmiento and Regalado, JJ., concur.

The Lawphil Project - Arellano Law Foundation

Separate Opinions

PADILLA, J., dissenting:

I regret that I can not concur with the majority. I believe that the reversal of respondent

appellate court's decision gives rise to a situation which was neither contemplated nor

intended by the applicable laws. I refer more particularly to the fact that

the ponencia has left private respondents-spouses with no one to hold liable for the

untimely demise of their son. On the other hand, they have, to my mind, been wronged.

and they should at least be recompensed for their sufferings. For this and other reasons

stated hereunder. I dissent.

The issues, as adopted by the ponencia from the record, are as follows:

A) Whether or not there was negligence attributable to the defendants which will

warrant the award of damages to the plaintiffs;

B) Whether or not Art. 2180, in relation to Art. 2176 of the New Civil Code is

applicable to the case at bar;

C) Whether or not the award of exemplary and moral damages is proper under

the circumstances surrounding the case at bar. 1

In my opinion, the record clearly shows negligence on the part of the petitioners-

teachers, with the exception of Aragones and Jaro. As to these two, respondent court

absolved them from liability for their having satisfactorily demonstrated lack of

participation in the negligence of their colleagues. I am in agreement with said

conclusion. But I also agree with the respondent court in its finding that Tirso de

Chavez, Luisito Viñas, Connie Arguio and Patria Cadiz failed to exercise DILIGENT

SUPERVISION over the children during the ill-fated excursion.

I may concede, albeit with reservation, that the afore-mentioned petitioners may not

have been negligent in finding ways and means to revive the young Castillo AFTER the

drowning incident. Their application of first-aid measures may have failed to revive

him but the petitioners had fully exhausted their efforts to save the deceased. This

concession, however, is given with hesitation, for there is indication in the record that

petitioner petitioners may have tarried too long in securing immediate medical

attention for the deceased. I refer to the trial court's finding that "it still took the jeep

which brought Ferdinand Castillo to the poblacion six (6) minutes before it finally

moved to await the other teachers." 2

All this aside, I am really disturbed about, and would like to emphasize the

demonstrated lack of diligence on the part of the petitioners-teachers BEFORE the

unfortunate incident took place. Despite awareness that the waters in the area were

deep, petitioners- teachers did not take concrete steps to make sure their wards did not

stray too far and too deeply. Even if they were not actually informed of the possible

dangers which the area posed, petitioners-teachers should have first "tested the waters",

so to speak, to ensure which parts thereof were safe for swimming purposes. However,

this was not the case for as testified to by petitioner de Chavez, "they admitted that they

did not even go to the water to check its depth although they were aware that some

parts of it were deep." 3

At best, it appears that only oral safety instructions were imparted to the young

excursionists.

But, what I find most disturbing is the fact that at the time the trouble arose, Viñas and

de Chavez, the male teachers who were supposed to ensure the children's safety, being

physical education instructors, were nowhere within the immediate vicinity but were,

in fact, as admitted by the latter, "at his house getting some foods (sic) and thinks." The

Court a quo even went as far as to say that "they were somewhere and as testified to by

plaintiffs' witness they were having a drinking spree!" 4

It thus appears that the petitioners-teachers failed to exercise the proper diligence or

what I may refer to as DILIGENCE BEFORE THE FACT. As earlier mentioned, the steps

taken to revive the deceased may be considered adequate, despite my reservations, but

the over-all lack of diligence on the part of petitioners-teachers suffices to put them

within the standards set by this Court in determining the existence of negligence. As

held in Hedy Gan y Yu vs. Court of Appeals, et al., the test in determining whether or not a

person is negligent in doing an act whereby injury or damage results to the person or

property of another is this: Would a prudent man in the position of the person to whom

negligence is attributed foresee harm to the person injured as a reasonable consequence

of the course about to be pursued? If so, the law imposes the duty on the doer TO TAKE

PRECAUTION against its mischievous results and the failure to do so constitutes

negligence. 5

The next issue to be addressed pertains to the liability of the petitioner St. Francis High

School as represented by petitioners-spouses Fernando Nantes and Rosario Lacandula.

The majority would like to emphasize the fact that the unfortunate incident having

occurred during a purely private affair, the teachers involved therein were not in the

actual performance of their assigned tasks. Consequently, any act or omission caused by

them cannot bind their employer, petitioner St. Francis High School.

I take exception to this proposition. Although the excursion may not have been

attended by the appropriate school authorities, the presence or stamp of authority of the

school nevertheless pervaded by reason of the participationnot of one but of several

teachers, the petitioners. As found by the court a quo, the excursion was an activity

"organized by the teachers themselves, for the students and to which the student,

NATURALLY, acceded." 6

Moreover, the record indicates that petitioner Benjamin Illumin, school principal, knew

of the excursion and had, in fact, been invited to attend. As the majority see it, such

knowledge does not in any manner show acquiescence or consent to the holding of the

excursion, a view which I do not accept. It seems to me that having known of the

forthcoming activity, petitioner Illumin, as school principal, should have taken

appropriate measures to ensure the safety of his students. Having preferred to remain

silent, and even indifferent, he now seeks excuse from such omission by invoking his

alleged lack of consent to the excursion. But it is precisely his silence and negligence in

performing his role as principal head of the school that must be construed as an implied

consent to such activity.

As administrative head (principal) of St. Francis High School, petitioner Illumin acted as

the agent of his principal (the school) or its representatives, the petitioners-spouses

Nantes and Lacandula. Consequently, and as found by the respondent

court.1âwphi1 Article 2176 in conjunction with Article 2180, paragraphs (1) and (5) are

applicable to the situation. In the application of these provisions, the negligence of the

employee in causing injury or damage gives rise to a presumption of negligence on the

part of the owner and/or manager of the establishment. While this presumption is not

conclusive, it may be overcome only by clear and convincing evidence that the owner

and/or manager exercised the care and diligence of a good father of a family in the

selection and/or supervision of the employees causing the injury or damage. I agree

with the respondent court that no proof was presented to absolve the owner and/or

manager, herein petitioners-spouses Nantes and Lacandula, and Illumin. Thus, as

correctly held by the respondent court, they too must be accountable for the death of

Ferdinand Castillo.

The majority view appears to be apprehensive that employers will be continuously held

accountable for misdeeds of their employees committed even when the same are done

not in the actual exercise of their duties. I fail to appreciate such apprehensions, which

need not arise on the part of employers, so long as the latter have no knowledge of, or

give consent to, such act or omission on the part of their employee.

Educational institutions have responsibilities which cannot be equated with those of the

ordinary employer or business establishment. Such institutions, particularly the

primary and secondary schools, hold the tremendous responsibility of exercising

supervision over young children. Too often, such schools avoid liabilities, as in the

instant cage, by invoking the absence of approval on their part for activities that may be

held outside school premises or held on a day not a school day. It is about time that

such schools realize that theirs is not a mere moneymaking entity or one impersonally

established for the sole task of teaching the rudimentary skills of "reading, writing and

'rithmetic." They must consider that their students are children of tender years who are

in need of adequate care, continuing attention and guidance.

Anent the issue of damages, from the foregoing discussion the award thereof is clearly

proper. I only wish to point out the basis for moral damages which is found in Article

2219 of the Civil Code, to wit:

Moral damages may be recovered in the following and analogous cases:

1. . . . .

2. Quasi-delicts causing physical injuries;

x x x x x x x x x

It should be noted that the term "physical injuries" must not be construed in its penal

sense alone but rather in its generic sense, in the spirit of this Court's rulings

in Carandang vs. Santiago (51 O.G. 2878) and Madeja vs. Caro, et al., (G.R. No. 51183, 21

December 1983, 126 SCRA 293). Thus, the death of private respondents' son as a result

of petitioners' negligence gives rise to an action for quasi-delict which, as provided,

entitles the claimant to an award of moral damages.

In the light of the foregoing, I vote to AFFIRM the decision of the respondent court and

thus hold the petitioners jointly and severally liable for the death of Ferdinand Castillo.

PHILIPPINE SCHOOL OF BUSINESS ADMINISTRATION, JUAN D. LIM,

BENJAMIN P. PAULINO, ANTONIO M. MAGTALAS, COL. PEDRO SACRO and

LT. M. SORIANO, petitioners,

vs.

COURT OF APPEALS, HON. REGINA ORDOÑEZ-BENITEZ, in her capacity as

Presiding Judge of Branch 47, Regional Trial Court, Manila, SEGUNDA R.

BAUTISTA and ARSENIA D. BAUTISTA, respondents.

Balgos and Perez for petitioners.

Collantes, Ramirez & Associates for private respondents.

PADILLA, J.:

A stabbing incident on 30 August 1985 which caused the death of Carlitos Bautista

while on the second-floor premises of the Philippine School of Business Administration

(PSBA) prompted the parents of the deceased to file suit in the Regional Trial Court of

Manila (Branch 47) presided over by Judge (now Court of Appeals justice) Regina

Ordoñez-Benitez, for damages against the said PSBA and its corporate officers. At the

time of his death, Carlitos was enrolled in the third year commerce course at the PSBA.

It was established that his assailants were not members of the school's academic

community but were elements from outside the school.

Specifically, the suit impleaded the PSBA and the following school authorities: Juan D.

Lim (President), Benjamin P. Paulino (Vice-President), Antonio M. Magtalas

(Treasurer/Cashier), Col. Pedro Sacro (Chief of Security) and a Lt. M. Soriano (Assistant

Chief of Security). Substantially, the plaintiffs (now private respondents) sought to

adjudge them liable for the victim's untimely demise due to their alleged negligence,

recklessness and lack of security precautions, means and methods before, during and

after the attack on the victim. During the proceedings a quo, Lt. M. Soriano terminated

his relationship with the other petitioners by resigning from his position in the school.

Defendants a quo (now petitioners) sought to have the suit dismissed, alleging that since

they are presumably sued under Article 2180 of the Civil Code, the complaint states no

cause of action against them, as jurisprudence on the subject is to the effect that academic

institutions, such as the PSBA, are beyond the ambit of the rule in the afore-stated

article.

The respondent trial court, however, overruled petitioners' contention and thru an

order dated 8 December 1987, denied their motion to dismiss. A subsequent motion for

reconsideration was similarly dealt with by an order dated 25 January 1988. Petitioners

then assailed the trial court's disposition before the respondent appellate court which, in

a decision * promulgated on 10 June 1988, affirmed the trial court's orders. On 22

August 1988, the respondent appellate court resolved to deny the petitioners' motion

for reconsideration. Hence, this petition.

At the outset, it is to be observed that the respondent appellate court primarily

anchored its decision on the law ofquasi-delicts, as enunciated in Articles 2176 and 2180

of the Civil Code. 1 Pertinent portions of the appellate court's now assailed ruling state:

Article 2180 (formerly Article 1903) of the Civil Code is an adoption from

the old Spanish Civil Code. The comments of Manresa and learned

authorities on its meaning should give way to present day changes. The

law is not fixed and flexible (sic); it must be dynamic. In fact, the greatest

value and significance of law as a rule of conduct in (sic) its flexibility to

adopt to changing social conditions and its capacity to meet the new

challenges of progress.

Construed in the light of modern day educational system, Article 2180

cannot be construed in its narrow concept as held in the old case

of Exconde vs. Capuno 2 and Mercado vs. Court of Appeals; 3hence, the ruling

in the Palisoc 4 case that it should apply to all kinds of educational

institutions, academic or vocational.

At any rate, the law holds the teachers and heads of the school staff liable

unless they relieve themselves of such liability pursuant to the last

paragraph of Article 2180 by "proving that they observed all the diligence

to prevent damage." This can only be done at a trial on the merits of the

case. 5

While we agree with the respondent appellate court that the motion to dismiss the

complaint was correctly denied and the complaint should be tried on the merits, we do

not however agree with the premises of the appellate court's ruling.

Article 2180, in conjunction with Article 2176 of the Civil Code, establishes the rule

of in loco parentis. This Court discussed this doctrine in the afore-cited cases of Exconde,

Mendoza, Palisoc and, more recently, in Amadora vs.Court of Appeals. 6 In all such cases, it

had been stressed that the law (Article 2180) plainly provides that the damage should

have been caused or inflicted by pupils or students of he educational institution sought to

be held liable for the acts of its pupils or students while in its custody. However, this

material situation does not exist in the present case for, as earlier indicated, the

assailants of Carlitos were not students of the PSBA, for whose acts the school could be

made liable.

However, does the appellate court's failure to consider such material facts mean the

exculpation of the petitioners from liability? It does not necessarily follow.

When an academic institution accepts students for enrollment, there is established

a contract between them, resulting in bilateral obligations which both parties are bound

to comply with. 7 For its part, the school undertakes to provide the student with an

education that would presumably suffice to equip him with the necessary tools and

skills to pursue higher education or a profession. On the other hand, the student

covenants to abide by the school's academic requirements and observe its rules and

regulations.

Institutions of learning must also meet the implicit or "built-in" obligation of providing

their students with an atmosphere that promotes or assists in attaining its primary

undertaking of imparting knowledge. Certainly, no student can absorb the intricacies of

physics or higher mathematics or explore the realm of the arts and other sciences when

bullets are flying or grenades exploding in the air or where there looms around the

school premises a constant threat to life and limb. Necessarily, the school must ensure

that adequate steps are taken to maintain peace and order within the campus premises

and to prevent the breakdown thereof.

Because the circumstances of the present case evince a contractual relation between the

PSBA and Carlitos Bautista, the rules on quasi-delict do not really govern. 8 A perusal

of Article 2176 shows that obligations arising from quasi-delicts or tort, also known as

extra-contractual obligations, arise only between parties not otherwise bound by

contract, whether express or implied. However, this impression has not prevented this

Court from determining the existence of a tort even when there obtains a contract.

In Air France vs. Carrascoso (124 Phil. 722), the private respondent was awarded damages

for his unwarranted expulsion from a first-class seat aboard the petitioner airline. It is

noted, however, that the Court referred to the petitioner-airline's liability as one arising

from tort, not one arising from a contract of carriage. In effect, Air France is authority for

the view that liability from tort may exist even if there is a contract, for the act that

breaks the contract may be also a tort. (Austro-America S.S. Co. vs. Thomas, 248 Fed.

231).

This view was not all that revolutionary, for even as early as 1918, this Court was

already of a similar mind. InCangco vs. Manila Railroad (38 Phil. 780), Mr. Justice Fisher

elucidated thus:

The field of non-contractual obligation is much broader than that of

contractual obligation, comprising, as it does, the whole extent of juridical

human relations. These two fields, figuratively speaking, concentric; that

is to say, the mere fact that a person is bound to another by contract does

not relieve him from extra-contractual liability to such person. When such

a contractual relation exists the obligor may break the contract under such

conditions that the same act which constitutes a breach of the contract would

have constituted the source of an extra-contractual obligation had no contract

existed between the parties.

Immediately what comes to mind is the chapter of the Civil Code on Human Relations,

particularly Article 21, which provides:

Any person who wilfully causes loss or injury to another in a manner that

is contrary to morals, good custom or public policy shall compensate the latter

for the damage. (emphasis supplied).

Air France penalized the racist policy of the airline which emboldened the petitioner's

employee to forcibly oust the private respondent to cater to the comfort of a white man

who allegedly "had a better right to the seat." In Austro-American, supra, the public

embarrassment caused to the passenger was the justification for the Circuit Court of

Appeals, (Second Circuit), to award damages to the latter. From the foregoing, it can be

concluded that should the act which breaches a contract be done in bad faith and be

violative of Article 21, then there is a cause to view the act as constituting a quasi-delict.

In the circumstances obtaining in the case at bar, however, there is, as yet, no finding

that the contract between the school and Bautista had been breached thru the former's

negligence in providing proper security measures. This would be for the trial court to

determine. And, even if there be a finding of negligence, the same could give rise

generally to a breach of contractual obligation only. Using the test of Cangco, supra, the

negligence of the school would not be relevant absent a contract. In fact, that negligence

becomes material only because of the contractual relation between PSBA and Bautista.

In other words, a contractual relation is a condition sine qua non to the school's liability.

The negligence of the school cannot exist independently of the contract, unless the

negligence occurs under the circumstances set out in Article 21 of the Civil Code.

This Court is not unmindful of the attendant difficulties posed by the obligation of

schools, above-mentioned, for conceptually a school, like a common carrier, cannot be

an insurer of its students against all risks. This is specially true in the populous student

communities of the so-called "university belt" in Manila where there have been reported

several incidents ranging from gang wars to other forms of hooliganism. It would not

be equitable to expect of schools to anticipate all types of violent trespass upon their

premises, for notwithstanding the security measures installed, the same may still fail

against an individual or group determined to carry out a nefarious deed inside school

premises and environs. Should this be the case, the school may still avoid liability by

proving that the breach of its contractual obligation to the students was not due to its

negligence, here statutorily defined to be the omission of that degree of diligence which

is required by the nature of the obligation and corresponding to the circumstances of

persons, time and place. 9

As the proceedings a quo have yet to commence on the substance of the private

respondents' complaint, the record is bereft of all the material facts. Obviously, at this

stage, only the trial court can make such a determination from the evidence still to

unfold.

WHEREFORE, the foregoing premises considered, the petition is DENIED. The court of

origin (RTC, Manila, Br. 47) is hereby ordered to continue proceedings consistent with

this ruling of the Court. Costs against the petitioners.

SO ORDERED.

ST. MARYS ACADEMY, petitioner, vs. WILLIAM CARPITANOS and LUCIA S.

CARPITANOS, GUADA DANIEL, JAMES DANIEL II, JAMES DANIEL,

SR.,and VIVENCIO VILLANUEVA, respondents.

D E C I S I O N

PARDO, J.:

The Case

The case is an appeal via certiorari from the decision[1] of the Court of Appeals as

well as the resolution denying reconsideration, holding petitioner liable for damages

arising from an accident that resulted in the death of a student who had joined a

campaign to visit the public schools in Dipolog City to solicit enrollment.

The Facts

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

Claiming damages for the death of their only son, Sherwin Carpitanos, spouses William

Carpitanos and Lucia Carpitanos filed on June 9, 1995 a case against James Daniel II and

his parents, James Daniel Sr. and Guada Daniel, the vehicle owner, Vivencio Villanueva

and St. Marys Academy before the Regional Trial Court of Dipolog City.

On 20 February 1997, Branch 6 of the Regional Trial Court of Dipolog City rendered its

decision the dispositive portion of which reads as follows:

WHEREFORE, PREMISES CONSIDERED, judgment is hereby rendered in the

following manner:

1. Defendant St. Marys Academy of Dipolog City, is hereby ordered to pay plaintiffs

William Carpitanos and Luisa Carpitanos, the following sums of money:

a. FIFTY THOUSAND PESOS (P50,000.00) indemnity for the loss of

life of Sherwin S. Carpitanos;

b. FORTY THOUSAND PESOS (P40,000.00) actual damages incurred

by plaintiffs for burial and related expenses;

c. TEN THOUSAND PESOS (P10,000.00) for attorneys fees;

d. FIVE HUNDRED THOUSAND PESOS (P500,000.00) for moral

damages; and to pay costs.

2. Their liability being only subsidiary, defendants James Daniel, Sr. and Guada Daniel

are hereby ordered to pay herein plaintiffs the amount of damages above-stated in the

event of insolvency of principal obligor St. Marys Academy of Dipolog City;

3. Defendant James Daniel II, being a minor at the time of the commission of the tort

and who was under special parental authority of defendant St. Marys Academy, is

ABSOLVED from paying the above-stated damages, same being adjudged against

defendants St. Marys Academy, and subsidiarily, against his parents;

4. Defendant Vivencio Villanueva is hereby ABSOLVED of any liability. His

counterclaim not being in order as earlier discussed in this decision, is hereby

DISMISSED.

IT IS SO ORDERED. (Decision, pp. 32-33; Records, pp. 205-206).

From the records it appears that from 13 to 20 February 1995, defendant-appellant St.

Marys Academy of Dipolog City conducted an enrollment drive for the school year

1995-1996. A facet of the enrollment campaign was the visitation of schools from where

prospective enrollees were studying. As a student of St. Marys Academy, Sherwin

Carpitanos was part of the campaigning group. Accordingly, on the fateful day,

Sherwin, along with other high school students were riding in a Mitsubishi jeep owned

by defendant Vivencio Villanueva on their way to Larayan Elementary School,

Larayan, Dapitan City. The jeep was driven by James Daniel II then 15 years old and a

student of the same school. Allegedly, the latter drove the jeep in a reckless manner and

as a result the jeep turned turtle.

Sherwin Carpitanos died as a result of the injuries he sustained from the accident.[2]

In due time, petitioner St. Marys academy appealed the decision to the Court of

Appeals.[3]

On February 29, 2000, the Court of Appeals promulgated a decision reducing the

actual damages to P25,000.00 but otherwise affirming the decision a quo, in toto.[4]

On February 29, 2000, petitioner St. Marys Academy filed a motion for

reconsideration of the decision. However, on May 22, 2000, the Court of Appeals denied

the motion.[5]

Hence, this appeal.[6]

The Issues

1) Whether the Court of Appeals erred in holding the petitioner liable for

damages for the death of Sherwin Carpitanos.

2) Whether the Court of Appeals erred in affirming the award of moral

damages against the petitioner.

The Courts Ruling

We reverse the decision of the Court of Appeals.

The Court of Appeals held petitioner St. Marys Academy liable for the death of

Sherwin Carpitanos under Articles 218[7] and 219[8] of the Family Code, pointing out that

petitioner was negligent in allowing a minor to drive and in not having a teacher

accompany the minor students in the jeep.

Under Article 218 of the Family Code, the following shall have special parental

authority over a minor child while under their supervision, instruction or custody: (1)

the school, its administrators and teachers; or (2) the individual, entity or institution

engaged in child care. This special parental authority and responsibility applies to all

authorized activities, whether inside or outside the premises of the school, entity or

institution. Thus, such authority and responsibility applies to field trips, excursions and

other affairs of the pupils and students outside the school premises whenever

authorized by the school or its teachers.[9]

Under Article 219 of the Family Code, if the person under custody is a minor, those

exercising special parental authority are principally and solidarily liable for damages

caused by the acts or omissions of the unemancipated minor while under their

supervision, instruction, or custody.[10]

However, for petitioner to be liable, there must be a finding that the act or omission

considered as negligent was the proximate cause of the injury caused because the

negligence must have a causal connection to the accident.[11]

In order that there may be a recovery for an injury, however, it must be shown that the

injury for which recovery is sought must be the legitimate consequence of the wrong

done; the connection between the negligence and the injury must be a direct and natural

sequence of events, unbroken by intervening efficient causes. In other words, the

negligence must be the proximate cause of the injury. For, negligence, no matter in what

it consists, cannot create a right of action unless it is the proximate cause of the injury

complained of. And the proximate cause of an injury is that cause, which, in natural and

continuous sequence, unbroken by any efficient intervening cause, produces the injury,

and without which the result would not have occurred.[12]

In this case, the respondents failed to show that the negligence of petitioner was the

proximate cause of the death of the victim.

Respondents Daniel spouses and Villanueva admitted that the immediate cause of

the accident was not the negligence of petitioner or the reckless driving of James Daniel

II, but the detachment of the steering wheel guide of the jeep.

In their comment to the petition, respondents Daniel spouses and Villanueva

admitted the documentary exhibits establishing that the cause of the accident was the

detachment of the steering wheel guide of the jeep. Hence, the cause of the accident was

not the recklessness of James Daniel II but the mechanical defect in the jeep of Vivencio

Villanueva. Respondents, including the spouses Carpitanos, parents of the deceased

Sherwin Carpitanos, did not dispute the report and testimony of the traffic investigator

who stated that the cause of the accident was the detachment of the steering wheel

guide that caused the jeep to turn turtle.

Significantly, respondents did not present any evidence to show that the proximate

cause of the accident was the negligence of the school authorities, or the reckless driving

of James Daniel II. Hence, the respondents reliance on Article 219 of the Family Code

that those given the authority and responsibility under the preceding Article shall be

principally and solidarily liable for damages caused by acts or omissions of the

unemancipated minor was unfounded.

Further, there was no evidence that petitioner school allowed the minor James

Daniel II to drive the jeep of respondent Vivencio Villanueva. It was Ched Villanueva,

grandson of respondent Vivencio Villanueva, who had possession and control of the

jeep. He was driving the vehicle and he allowed James Daniel II, a minor, to drive the

jeep at the time of the accident.

Hence, liability for the accident, whether caused by the negligence of the minor

driver or mechanical detachment of the steering wheel guide of the jeep, must be

pinned on the minors parents primarily. The negligence of petitioner St. Marys

Academy was only a remote cause of the accident. Between the remote cause and the

injury, there intervened the negligence of the minors parents or the detachment of the

steering wheel guide of the jeep.

The proximate cause of an injury is that cause, which, in natural and continuous

sequence, unbroken by any efficient intervening cause, produces the injury, and

without which the result would not have occurred.[13]

Considering that the negligence of the minor driver or the detachment of the

steering wheel guide of the jeep owned by respondent Villanueva was an event over

which petitioner St. Marys Academy had no control, and which was the proximate

cause of the accident, petitioner may not be held liable for the death resulting from such

accident.

Consequently, we find that petitioner likewise cannot be held liable for moral

damages in the amount of P500,000.00 awarded by the trial court and affirmed by the

Court of Appeals.

Though incapable of pecuniary computation, moral damages may be recovered if

they are the proximate result of the defendants wrongful act or omission.[14] In this case,

the proximate cause of the accident was not attributable to petitioner.

For the reason that petitioner was not directly liable for the accident, the decision of

the Court of Appeals ordering petitioner to pay death indemnity to respondent

Carpitanos must be deleted. Moreover, the grant of attorneys fees as part of damages is

the exception rather than the rule.[15] The power of the court to award attorneys fees

under Article 2208 of the Civil Code demands factual, legal and equitable

justification.[16] Thus, the grant of attorneys fees against the petitioner is likewise

deleted.

Incidentally, there was no question that the registered owner of the vehicle was

respondent Villanueva. He never denied and in fact admitted this fact. We have held

that the registered owner of any vehicle, even if not used for public service, would

primarily be responsible to the public or to third persons for injuries caused the latter

while the vehicle was being driven on the highways or streets.[17] Hence, with the

overwhelming evidence presented by petitioner and the respondent Daniel spouses that

the accident occurred because of the detachment of the steering wheel guide of the jeep,

it is not the school, but the registered owner of the vehicle who shall be held responsible

for damages for the death of Sherwin Carpitanos.

The Fallo

WHEREFORE, the Court REVERSES and SETS ASIDE the decision of the Court of

Appeals[18] and that of the trial court.[19] The Court remands the case to the trial court for

determination of the liability of defendants, excluding petitioner St. Marys

Academy, Dipolog City.

No costs.

SO ORDERED.