Cases for Monday

(March 9, 2020)

Art. 2177

1. Joseph vs. Bautista 170 SCRA 540 (1989)

2. Padua vs. Robles, GR No. L-40486, August 29, 1975

3. Atlantic Gulf and Pacific Company of Manila, Inc. vs. CA, GR No. 114841-42, October 20,1995

4. Lim vs. Ping, GR No. 175256, August 23, 2012

Vicarious Liability (Art. 2180)

A. Parents & Guardians

a. Exconde vs. Capuno, GR No.L-10134, June 29, 1957

b. Elcano vs. Hill, GR NO. L-24803, May 26, 1977

c. Bahia vs. Litonjua, 30 Phil 624

d. Tamargo vs. CA, GR No. 85044, June 3, 1992

e. Sps. Libi vs. IAC, GR No. 70890, September 18, 1992

f. Cuadra vs. Monfort, GR No. L-24101, September 30, 1970

G.R. No. L-41423 February 23, 1989

LUIS JOSEPH, petitioner
vs.
HON. CRISPIN V. BAUTISTA, PATROCINIO PEREZ, ANTONIO SIOSON, JACINTO
PAGARIGAN, ALBERTO CARDENO and LAZARO VILLANUEVA, respondents.

Jose M. Castillo for petitioner.

Arturo Z. Sioson for private respondent, Patrocinio Perez.

Cipriano B. Farrales for private respondents except P. Perez.

REGALAD0, J.:
Petitioner prays in this appeal by certiorari for the annulment and setting aside of the order, dated
July 8, 1975, dismissing petitioner's complaint, as well as the order, dated August 22, 1975, denying
his motion for reconsideration of said dismissal, both issued by respondent Judge Crispin V. Bautista
of the former Court of First Instance of Bulacan, Branch III.

Petitioner herein is the plaintiff in Civil Case No. 50-V-73 entitled "Luis Joseph vs. Patrocinio Perez,
Domingo Villa y de Jesus, Rosario Vargas, Antonio Sioson, Lazaro Villanueva and Jacinto
Pagarigan", filed before the Court of First Instance of Bulacan, Branch III, and presided over by
respondent Judge Crispin V. Bautista; while private respondents Patrocinio Perez, Antonio Sioson,
Jacinto Pagarigan and Lazaro Villanueva are four of the defendants in said case. Defendant
Domingo Villa y de Jesus did not answer either the original or the amended complaint, while
defendant Rosario Vargas could not be served with summons; and respondent Alberto Cardeno is
included herein as he was impleaded by defendant Patrocinio Perez, one of respondents herein, in
her cross-claim.

The generative facts of this case, as culled from the written submission of the parties, are as follows:

Respondent Patrocinio Perez is the owner of a cargo truck with Plate No. 25-2 YT Phil. '73 for
conveying cargoes and passengers for a consideration from Dagupan City to Manila. On January
12, 1973, said cargo truck driven by defendant Domingo Villa was on its way to Valenzuela, Bulacan
from Pangasinan. Petitioner, with a cargo of livestock, boarded the cargo truck at Dagupan City after
paying the sum of P 9.00 as one way fare to Valenzuela, Bulacan. While said cargo truck was
negotiating the National Highway proceeding towards Manila, defendant Domingo Villa tried to
overtake a tricycle likewise proceeding in the same direction. At about the same time, a pick-up truck
with Plate No. 45-95 B, supposedly owned by respondents Antonio Sioson and Jacinto Pagarigan,
then driven by respondent Lazaro Villanueva, tried to overtake the cargo truck which was then in the
process of overtaking the tricycle, thereby forcing the cargo truck to veer towards the shoulder of the
road and to ram a mango tree. As a result, petitioner sustained a bone fracture in one of his legs.  1

The following proceedings thereafter took place:  2

Petitioner filed a complaint for damages against respondent Patrocinio Perez, as owner of the cargo
truck, based on a breach of contract of carriage and against respondents Antonio Sioson and Lazaro
Villanueva, as owner and driver, respectively, of the pick-up truck, based on quasi-delict.

Respondent Sioson filed his answer alleging that he is not and never was an owner of the pick-up
truck and neither would he acquire ownership thereof in the future.

On September 24, 1973, petitioner, with prior leave of court, filed his amended complaint impleading
respondents Jacinto Pagarigan and a certain Rosario Vargas as additional alternative defendants.
Petitioner apparently could not ascertain who the real owner of said cargo truck was, whether
respondents Patrocinio Perez or Rosario Vargas, and who was the real owner of said pick-up truck,
whether respondents Antonio Sioson or Jacinto Pagarigan.

Respondent Perez filed her amended answer with crossclaim against her co-defendants for
indemnity and subrogation in the event she is ordered to pay petitioner's claim, and therein
impleaded cross-defendant Alberto Cardeno as additional alternative defendant.

On September 27, 1974, respondents Lazaro Villanueva, Alberto Cardeno, Antonio Sioson and
Jacinto Pagarigan, thru their insurer, Insurance Corporation of the Philippines, paid petitioner's claim
for injuries sustained in the amount of P 1,300.00. By reason thereof, petitioner executed a release
of claim releasing from liability the following parties, viz: Insurance Corporation of the Philippines,
Alberto Cardeno, Lazaro Villanueva, Antonio Sioson and Jacinto Pagarigan.

On December 2, 1974, respondents Lazaro Villanueva, Alberto Cardeno and their insurer, the
Insurance Corporation of the Philippines, paid respondent Patrocinio Perez' claim for damages to
her cargo truck in the amount of P 7,420.61.

Consequently, respondents Sioson, Pagarigan, Cardeno and Villanueva filed a "Motion to Exonerate
and Exclude Defs/ Cross defs. Alberto Cardeno, Lazaro Villanueva, Antonio Sioson and Jacinto
Pagarigan on the Instant Case", alleging that respondents Cardeno and Villanueva already paid P
7,420.61 by way of damages to respondent Perez, and alleging further that respondents Cardeno,
Villanueva, Sioson and Pagarigan paid P 1,300.00 to petitioner by way of amicable settlement.

Thereafter, respondent Perez filed her "Opposition to Cross-defs.' motion dated Dec. 2, 1974 and
Counter Motion" to dismiss. The so-called counter motion to dismiss was premised on the fact that
the release of claim executed by petitioner in favor of the other respondents inured to the benefit of
respondent Perez, considering that all the respondents are solidarity liable to herein petitioner.

On July 8, 1975, respondent judge issued the questioned order dismissing the case, and a motion
for the reconsideration thereof was denied. Hence, this appeal, petitioner contending that
respondent judge erred in declaring that the release of claim executed by petitioner in favor of
respondents Sioson, Villanueva and Pagarigan inured to the benefit of respondent Perez; ergo, it
likewise erred in dismissing the case.

We find the present recourse devoid of merit.

The argument that there are two causes of action embodied in petitioner's complaint, hence the
judgment on the compromise agreement under the cause of action based on quasi-delict is not a bar
to the cause of action for breach of contract of carriage, is untenable.

A cause of action is understood to be the delict or wrongful act or omission committed by the
defendant in violation of the primary rights of the plaintiff.   It is true that a single act or omission can
3

be violative of various rights at the same time, as when the act constitutes juridically a violation of
several separate and distinct legal obligations. However where there is only one delict or wrong,
there is but a single cause of action regardless of the number of rights that may have been violated
belonging to one person.  4

The singleness of a cause of action lies in the singleness of the- delict or wrong violating the rights of
one person. Nevertheless, if only one injury resulted from several wrongful acts, only one cause of
action arises.   In the case at bar, there is no question that the petitioner sustained a single injury on
5

his person. That vested in him a single cause of action, albeit with the correlative rights of action
against the different respondents through the appropriate remedies allowed by law.

The trial court was, therefore, correct in holding that there was only one cause of action involved
although the bases of recovery invoked by petitioner against the defendants therein were not
necessarily Identical since the respondents were not identically circumstanced. However, a recovery
by the petitioner under one remedy necessarily bars recovery under the other. This, in essence, is
the rationale for the proscription in our law against double recovery for the same act or omission
which, obviously, stems from the fundamental rule against unjust enrichment.
There is no question that the respondents herein are solidarily liable to petitioner. On the evidence
presented in the court below, the trial court found them to be so liable. It is undisputed that petitioner,
in his amended complaint, prayed that the trial court hold respondents jointly and severally liable.
Furthermore, the allegations in the amended complaint clearly impleaded respondents as solidary
debtors. We cannot accept the vacuous contention of petitioner that said allegations are intended to
apply only in the event that execution be issued in his favor. There is nothing in law or jurisprudence
which would countenance such a procedure.

The respondents having been found to be solidarity liable to petitioner, the full payment made by
some of the solidary debtors and their subsequent release from any and all liability to petitioner
inevitably resulted in the extinguishment and release from liability of the other solidary debtors,
including herein respondent Patrocinio Perez.

The claim that there was an agreement entered into between the parties during the pre-trial
conference that, after such payment made by the other respondents, the case shall proceed as
against respondent Perez is both incredible and unsubstantiated. There is nothing in the records to
show, either by way of a pre-trial order, minutes or a transcript of the notes of the alleged pre-trial
hearing, that there was indeed such as agreement.

WHEREFORE, the challenged orders of the respondent judge are hereby AFFIRMED.

SO ORDERED.

[G.R. No. L-40486. August 29, 1975.]

PAULINO PADUA and LUCENA BEBIN PADUA, Plaintiffs-Appellants, v. GREGORIO N. ROBLES and BAY
TAXI CAB, Defendants-Appellees.

Alberto R. de Joya, for Plaintiffs-Appellants.

Cardenas & Peralta Law Office for Defendants-Appellees.

SYNOPSIS

The Paduas sued the driver and the taxicab company for damages resulting from the death of their son
who was run over by a taxi operated by said company. Likewise, by information filed with the same
court, the fiscal charged the driver with homicide through reckless imprudence. In the civil case, the
Court adjudged actual moral and exemplary damages, plus attorney’s fees, against the driver, and
dismissed the complaint insofar as the company was concerned. Almost a year later, the driver was
convicted and the decretal portion of the judgment on the civil liability of the driver resulting from his
criminal conviction state that "the civil liability of the accused has already been determined and
assessed" in the prior civil case. When the judgment in the civil case became final, the Paduas sought
execution thereof, but this proved futile. Hence, they instituted an action in the same court against the
owner of the taxicab company to enforce the latter’s subsidiary liability under Article 103 of the Revised
Penal Code. On motion of the owner, the court a quo dismissed the suit on the ground that the
complaint stated no cause of action.

The Supreme Court held that the sufficiency and efficacy of a judgment must be tested by its substance
rather than form; that even if the decretal portion of the judgment in the criminal case were reasonably
susceptible of two of more interpretations, that which achieves moral justice should be adopted,
eschewing the other interpretations which in effect would negate moral justice; and that therefore, the
Paduas’ subsequent complaint states a cause of action against the owner whose concomitant subsidiary
responsibility per judgment in the criminal case, subsists.

SYLLABUS

1. JUDGMENT; SUFFICIENCY AND EFFICACY TESTED BY ITS SUBSTANCE. — The sufficiency and efficacy of
a judgment must be tested by its substance rather than its form. In construing a judgment, its legal
effects including such effects that necessarily follow because of legal implications. rather than the
language used, govern. Also, its meaning, operation, and consequences must be ascertained like any
other written instrument. Thus, a judgment rests on the intention of the court as gathered from every
part thereof, including the situation to which it applies and the attendant circumstances.

2. ID.; CONSTRUCTION AND INTERPRETATION; MORAL JUSTICE SHOULD BE CONSIDERED. — Where it

would appear from a plain reading of a judgment in a reckless imprudence case, particularly in its
decretal portion (which stated that the civil liability of the accused had already been determined in a
prior civil case), that the judgment assessed no civil liability arising from the offense charged against the
driver; but where a careful study of the judgment, the situation to which it applies and the attendant
circumstances yield the conclusion that the court a quo on the contrary, recognized the enforceable
rights of the heirs to the civil liability arising from the offense committed by the driver and awarded the
corresponding indemnity therefor, HELD: That even if the statement in the decretal portion were
reasonably susceptible of two or more interpretations, that which achieves moral justice should be
adopted, eschewing the other interpretation which in effect would negate moral justice.

3. CIVIL LIABILITY; DISTINGUISHED FROM CRIMINAL RESPONSIBILITY. — Civil liability coexists will
criminal responsibility. In negligence cases, the offended party (or his heirs) has the option between an
action for enforcement of civil liability based on culpa criminal under article 100 of the Revised Penal
Code and an action for recovery of damages based on culpa aquiliana under article 2177 of the Civil
Code. The action for enforcement of civil liability based on culpa criminal section 1 of Rule 111 of the
Rules of Court is deem simultaneously instituted with the criminal action, unless expressly waived or
reserved for a separate application by the offended party. Article 2177 of the Civil Code, however,
precludes recovery of damages twice for the same negligent act or omission.

4. ID.; ID.; ACTUAL DOUBLE RECOVERY IS PRESCRIBED. — It is immaterial that the plaintiffs chose in the
first instance, an action for recovery of damages based on culpa aquiliana under articles 2176, 2177 and
2180 of the Civil Code, which action proved ineffectual. There is no inconsistency between this action
priorly availed of the plaintiffs and their subsequent application for enforcement of civil liability arising
from the offense committed by the driver and, consequently, for exaction of the employer’s subsidiary
liability. Allowance of the latter application involves no violation of the prescription against double
recovery of damages for the same negligent act or omission where the writ of execution issued against
the driver to satisfy the amount of indemnity awarded to plaintiffs in the civil case was returned
unsatisfied. What Article 2177 of the Civil Code forbids is actual double recovery of damages for the
same negligent act or omission.

5. JUDGMENT; CONSTRUCTION AND INTERPRETATION INTENTION OF JUDGES GOVERNS. — Where the

same judge tried, heard, and determined both the prior civil case based on culpa aquiliana and the
subsequent criminal case of reckless imprudence, and in view of his knowledge and familiarity with all
the facts and circumstances relevant and relative to the civil liability of the accused driver, the judge
made a statement in the decretal portion of criminal case that the civil liability of the accused has
already been assessed and determined in the civil case, it cannot be reasonably contented that the court
a quo intended, in its judgment in said criminal case, to omit recognition of the right of plaintiffs to the
civil liability arising from the offense of which the driver was adjudged guilty and the corollary award of
the corresponding indemnity therefor nor can it be said that the court intended the statement in said
decretal portion referring to the determination and assessment of the driver’s civil liability in the civil
case to be pure jargon or "gobbledygook" and to absolutely of no meaning and effect whatsoever. The
substance of such statement, taken in the light of the situation to which it applies and the attendant
circumstances, make unmistakably clear the intention of the court to accord affirmation to the plaintiff’s
right to the civil liability arising from the judgment against the driver in the criminal case. Indeed, by
including such statement in the decretal portion of the said judgment, the court intended to adopt the
same adjudication and award it made in the civil case as the driver’s civil liability in the criminal case.

FERNANDO, J., concurring:chanrob1es virtual 1aw library

1. CONSTITUTIONAL LAW; JUDICIARY; JUDGES MUST GIVE EFFECT TO LAW. — It would conduce to less
respect for the law as an agency of social control if there be recognition in the codes of the right of next
kin to damages arising from the tragic occurrence of young lives being snuffed out due to reckless
driving on the part of what had been accurately described as dealers of death on the road and then by
lack of care on the part of a judge assure that it is nothing more than a barren form of words.
2. CONSTRUCTION AND INTERPRETATION; "POLICY" AND PRINCIPLES AS AIDS TO INTERPRETATION. —
Whenever an apparent gap in the law and settled principles of adjudication may not clearly indicate the
answer, a judge may rely either on an argument of policy or an argument of principle, the former having
kinship with the sociological school of jurisprudence and the latter with the analytical.

3. CIVIL LIABILITY; DISMISSAL OF CIVIL CASE AGAINST EMPLOYER DOES NOT NEGATE SUBSIDIARY
LIABILITY UNDER THE CRIMINAL CASE. — The dismissal of the complaint against the employer in a prior
civil case, based on culpa aquiliana does not suffice to render nugatory the employer’s admitted
subsidiary liability arising from a subsequent decision in a criminal case, which is necessarily attendant
upon the conviction of the driver.

4. ID.; DOUBTS IN THE RULING IN CULPA AQUILIANA SUIT DOES NOT NULLIFY SUBSIDIARY LIABILITY OF
EMPLOYER IN CRIMINAL CASE. — Doubts engendered by a previous ruling in the culpa aquiliana suit
could not nullify what the law decrees as to the subsidiary liability of the employer in the criminal case
finding the accused guilty. The party as much responsible for the mishap, with his operation of the
transportation service should not be absolved from liability. It need not be so, but certainly for
entrepreneurs more enterprising than careful, not excessively concerned with the safety of the traveling
public, it could be a green light for less vigilance over the conduct of their drivers. The resulting injury to
public safety is not hard to imagine. Moreover, from the standpoint of the feelings of the bereaved
parents, and this is just as important a policy consideration, no avenue should be left unexplored to
mitigate the harshness of fate, for there is not enough money in the entire world to compensate the
parents for the loss of their child.

BARREDO, J.: concurring:chanrob1es virtual 1aw library

1. ACTIONS; TWO INDEPENDENT LIABILITIES ARISING FROM A CRIME/CULPA CRIMINAL. — A negligent

act gives rise to at least two separate and independent kinds of liabilities, (1) the civil liability arising
from the crime or culpa criminal and (2) the liability arising from civil negligence or the so-called culpa
aquiliana. These two concepts of fault are so distinct from each other that exoneration from one does
not result in exoneration from the other. Adjectively and substantively, they can be prosecuted
separately and independently of each other, although Article 2177 of the Civil Code precludes recovery
of damages twice for the same negligent act or omission, which means that should there be varying
amounts awarded in two separates cases, the plaintiff may recover, in effect, only the bigger amount.

2. ID.; ID.; PERSON CRIMINALLY LIABLE IS ALSO CIVILLY LIABLE. — Under Article 100 of the Revised Penal
Code, a person criminally liable is also civilly liable, hence the judgment in the criminal case is supposed
to include the imposition of civil liability, unless the basis therefor has been shown not to exist.
3. ID.; ID.; ID.; CASE AT BAR. — Where as in the instant case the judgment in question says that "civil
liability of the accused has already been determined and assessed in Civil Case . . .", it is but logical to
conclude that the meaning of such statement is that the same amounts of damages fixed in the previous
case were being awarded to the offended party in the criminal case.

4. ID.; ID.; SUBSIDIARY LIABILITY OF EMPLOYER. — Where the filing of the civil action by petitioners
proceeded from the assumption that the employer has been found civilly liable for the same amounts
adjudged in the civil case, the employer is subsidiarily liable therefor in the face of employee’s
insolvency.

DECISION

CASTRO, J.:

Resolving this appeal by the spouses Paulino and Lucena Bebin Padua, we set aside the order dated
October 25, 1972 of the Court of First Instance of Zambales dismissing their complaint in civil case 1079-
0, and remand this case for further proceedings.

In the early morning of New Year’s Day of 1969 a taxicab (bearing 1968 plate no. TX-9395 and driven by
Romeo N. Punzalan but operated by the Bay Taxi Cab owned by Gregorio N. Robles) struck ten-year old
Normandy Padua on the national road in barrio Barretto, Olongapo City. The impact hurled Normandy
about forty meters away from the point where the taxicab struck him, as a result of which he died.

Subsequently, Normandy’s parents (Paulino and Lucena Bebin Padua), by complaint filed with the Court
of First Instance of Zambales (civil case 427-0), sought damages from Punzalan and the Bay Taxi Cab;
likewise, the city Fiscal of Olongapo, by information filed with the same court (criminal case 1158-0),
charged Punzalan with homicide through reckless imprudence.

On October 27, 1969 the court a quo, in civil case 427-0, adjudged for the Paduas as
follows:jgc:chanrobles.com.ph
"WHEREFORE judgment is hereby rendered ordering the defendant Romeo Punzalan to pay the plaintiffs
the sums of P12,000.00 as actual damages, P5,000.00 as moral and exemplary damages, and P10,000.00
as attorney’s fees; and dismissing the complaint insofar as the Bay Taxicab Company is concerned. With
costs against the defendant Romeo Punzalan." (Emphasis supplied)

Almost a year later, on October 5, 1970, the court a quo, in criminal case 1158-0, convicted Punzalan, as
follows:jgc:chanrobles.com.ph

"WHEREFORE, the Court finds the accused Romeo Punzalan y Narciso guilty beyond reasonable doubt of
the crime of homicide through reckless imprudence, as defined and penalized under Article 365 of the
Revised Penal Code, attended by the mitigating circumstance of voluntary surrender, and hereby
sentences him to suffer the indeterminate penalty of TWO (2) YEARS, FOUR (4) MONTHS and ONE (1)
DAY of prision correccional, as minimum, to SIX (6) YEARS and ONE (1) DAY of prision mayor, as
maximum, and to pay the cost. The civil liability of the accused has already been determined and
assessed in Civil Case No. 427-0, entitled ‘Paulino Padua, Et. Al. v. Romeo Punzalan, Et. Al.’" (Emphasis
supplied)

After the judgment in civil case 427-0 became final, the Paduas sought execution thereof. This proved
futile; the corresponding court officer returned the writ of execution unsatisfied.

Unable to collect the amount of P27,000 awarded in their favor, the Paduas instituted action in the
same court against Gregorio N. Robles to enforce the latter’s subsidiary responsibility under the
provisions of article 103 of the Revised Penal Code. Robles filed a motion to dismiss based on (1) bar of
the cause of action by a prior judgment and (2) failure of the complaint to state a cause of action.

Thereafter, the court a quo, in an order dated October 25, 1972, granted Robles’ motion to dismiss on
the ground that the Paduas’ complaint states no cause of action. This order the Paduas questioned in
the Court of Appeals which, by resolution dated March 5, 1975, certified the case to this Court for the
reason that the appeal involves only questions of law.

The Paduas predicate their appeal on eighteen errors allegedly committed by the court a quo. These
assigned errors, however, raise only one substantial issue: whether the judgment dated October 5, 1970
in criminal case 1158-0 includes a determination and adjudication of Punzalan’s civil liability arising from
his criminal act upon which Robles’ subsidiary civil responsibility may be based.
The sufficiency and efficacy of a judgment must be tested by its substance rather than its form. In
construing a judgment, its legal effects including such effects that necessarily follow because of legal
implications, rather than the language used, govern. Also, its meaning, operation, and consequences
must be ascertained like any other written instrument. Thus, a judgment rests on the intention of the
court as gathered from every part thereof, including the situation to which it applies and the attendant
circumstances.

It would appear that a plain reading, on its face, of the judgment in criminal case 1158-0, particularly its
decretal portion, easily results in the same conclusion reached by the court a quo: that the said
judgment assessed no civil liability arising from the offense charged against Punzalan. However, a careful
study of the judgment in question, the situation to which it applies, and the attendant circumstances,
would yield the conclusion that the court a quo, on the contrary, recognized the enforceable right of the
Paduas to the civil liability arising from the offense committed by Punzalan and awarded the
corresponding indemnity therefor.

Civil liability coexists with criminal responsibility. In negligence cases, the offended party (or his heirs)
has the option between an action for enforcement of civil liability based on culpa criminal under article
100 of the Revised Penal Code and an action for recovery of damages based on culpa aquiliana under
article 2177 of the Civil Code. The action for enforcement of civil liability based on culpa criminal section
1 of Rule 111 of the Rules of Court deems simultaneously instituted with the criminal action, unless
expressly waived or reserved for a separate application by the offended party. Article 2177 of the Civil
Code, however, precludes recovery of damages twice for the same negligent act or omission.

In the case at bar, the Court finds it immaterial that the Paduas chose, in the first instance, an action for
recovery of damages based on culpa aquiliana under articles 2176, 2177, and 2180 of the Civil Code,
which action proved ineffectual. The Court also takes note of the absence of any inconsistency between
the aforementioned action priorly availed of by the Paduas and their subsequent application for
enforcement of civil liability arising from the offense committed by Punzalan and, consequently, for
exaction of Robles’ subsidiary responsibility. Allowance of the latter application involves no violation of
the proscription against double recovery of damages for the same negligent act or omission. For, as
hereinbefore stated, the corresponding officer of the court a quo returned unsatisfied the writ of
execution issued against Punzalan to satisfy the amount of indemnity awarded to the Paduas in civil case
427-0. Article 2177 of the Civil Code forbids actual double recovery of damages for the same negligent
act or omission. Finally, the Court notes that the same judge * tried, heard, and determined both civil
case 427-0 and criminal case 1158-0. Knowledge of an familiarity with all the facts and circumstances
relevant and relative to the civil liability of Punzalan may thus be readily attributed to the judge when he
rendered judgment in the criminal action.

In view of the above considerations, it cannot reasonably be contended that the court a quo intended, in
its judgment in criminal case 1158-0, to omit recognition of the right of the Paduas to the civil liability
arising from the offense of which Punzalan was adjudged guilty and the corollary award of the
corresponding indemnity therefor. Surely, it cannot be said that the court intended the statement in the
decretal portion of the judgment in criminal case 1158-0 referring to the determination and assessment
of Punzalan’s civil liability in civil case 427-0 to be pure jargon or "gobbledygook" and to be absolutely of
no meaning and effect whatsoever. The substance of such statement, taken in the light of the situation
to which it applies and the attendant circumstances, makes unmistakably clear the intention of the court
to accord affirmation to the Paduas’ right to the civil liability arising from the judgment against Punzalan
in criminal case 1158-0. Indeed, by including such statement in the decretal portion of the said
judgment, the court intended to adopt the same adjudication and award it made in civil case 427-0 as
Punzalan’s civil liability in criminal case 1158-0.

There is indeed much to be desired in the formulation by Judge Amores of that part of the decretal
portion of the judgment in criminal case 1158-0 referring to the civil liability of Punzalan resulting from
his criminal conviction. The judge could have been forthright and direct instead of circuitous and
ambiguous. But, as we have above explained, the statement on the civil liability of Punzalan must surely
have a meaning; and even if the statement were reasonably susceptible of two or more interpretations,
that which achieves moral justice should be adopted, eschewing the other interpretations which in
effect would negate moral justice.

It is not amiss at this juncture to emphasize to all magistrates in all levels of the judicial hierarchy that
extreme degree of care should be exercised in the formulation of the dispositive portion of a decision,
because it is this portion that is to be executed once the decision becomes final. The adjudication of the
rights and obligations of the parties, and the dispositions made as well as the directions and instructions
given by the court in the premises in conformity with the body of the decision, must all be spelled out
clearly, distinctly and unequivocally, leaving absolutely no room for dispute, debate or interpretation.

We therefore hold that the Paduas’ complaint in civil case 1079-0 states a cause of action against Robles
whose concomitant subsidiary responsibility, per the judgment in criminal case 1158-0, subsists.

ACCORDINGLY, the order a quo dated October 25, 1972 dismissing the complaint in civil case 1079-0 is
set aside, and this case is hereby remanded to the court a quo for further proceedings conformably with
this decision and with law. No pronouncement as to costs.

Makalintal, C.J., Teehankee, Makasiar, Esguerra, Aquino, Concepcion, Jr. and Martin, JJ., concur.

Muñoz Palma J., did not take part.

Antonio, J., is on leave.

Separate Opinions

FERNANDO, J., concurring:chanrob1es virtual 1aw library

The clarity and lucidity with which Justice Castro spelled out the decisive issue and how to resolve it to
achieve the desirable goal of moral justice in adjudication compels concurrence. I do so. What is more,
there is to my mind a distinct advance in the juridical frontiers in the mode in which the novel question
raised was settled. If the trend manifest in the view taken by the Court would thereafter be followed,
then the protective ramparts the law throws around victims of vehicular accidents, unfortunately of
rather frequent occurrence here, will be further strengthened. That dissipates whatever doubts I may
have originally felt in view of certain traditional procedural concepts about the correctness of the
decision reached. It is true this is one of those hard cases which, if an old law is to be believed, may
result in bad law. It need not be so, of course, as pointed out with great persuasiveness in the 1971
inaugural lecture at Oxford given by Professor Ronald Dworkin, the successor in the chair of
jurisprudence to one of the most eminent men in the field H. L. A. Hart. 1 The more accurate way of
viewing the matter is that whenever there is an apparent gap in the law and settled principles of
adjudication may not clearly indicate the answer, then a judge may rely either on an argument of policy
or an argument of principle, the former having kinship with the sociological school of jurisprudence and
the latter with the analytical. As I hope I may be able to indicate in this brief concurrence, the decision
reached by us is in consonance with either approach. With the natural law thinking manifest in the
opinion of the Court, witness its stress on moral justice, I am comforted by the reflection that the
procedural barrier is not insurmountable, the decision reached deriving support from the viewpoint of
law as logic, justice, or social control.

1. Dworkin identifies a matter of principle from the standpoint of a right either granted or recognized by
law. As was so clearly pointed out in the opinion of Justice Castro: "It would appear that a plain reading,
on its face, of the judgment in criminal case 1158-0, particularly its decretal portion, easily results in the
same conclusion reached by the court a quo: that the said judgment assessed no civil liability arising
from the offense charged against Punzalan. However, a careful study of the judgment in question, the
situation to which it applies, and the attendant circumstances, would yield the conclusion that the court
a quo, on the contrary, recognized the enforceable right of the Paduas to the civil liability arising from
the offense committed by Punzalan and awarded the corresponding indemnity therefor." 2 There is
much to be said therefor for the view expressed therein that "it cannot reasonably be contended that
the court a quo intended, in its judgment in criminal case 1158-0, to omit recognition of the right of the
Paduas to the civil liability arising from the offense of which Punzalan was adjudged guilty and the
corollary award of the corresponding indemnity therefor. Surely, it cannot be said that the court
intended the statement in the decretal portion of the judgment in criminal case 1158-0 referring to the
determination and assessment of Punzalan’s civil liability in civil case 427-0 to be pure jargon or
‘gobbledygook’ and to be absolutely of no meaning and effect whatsoever. The substance of such
statement, taken in the light of the situation to which it applies and the attendant circumstances, makes
unmistakably clear the intention of the court to accord affirmation to the Padua’s right to the civil
liability arising from the judgment against Punzalan in criminal case 1158-0." 3 Whatever misgivings
therefore may be felt because in the civil case No. 427-0 the complaint against Bay Taxi Cab Co. is
dismissed, do not suffice, to my mind, to render nugatory the admitted subsidiary liability arising from a
decision in criminal case No. 1158-0 which is necessarily attendant upon the conviction of the driver,
Romeo N. Punzalan. Such a difficulty could have been avoided had greater care been exercised by the
lower court, but precisely recourse may be had to our corrective powers to avoid a right granted in law
from being rendered illusory in fact.

2. There is thus the strongest policy consideration that buttresses the conclusion reached by us. It would
conduce to less respect for the law as an agency of social control if there be recognition in the codes of
the right of next kin to damages arising from the tragic occurrence of young lives being snuffed out due
to reckless driving on the part of what had been accurately described as dealers of death on the road
and then by lack of care on the part of a judge assure that it is nothing more than a barren form of
words. This is what Dean Pound referred to as law in books as distinguished from law in action. To recall
an expression from Justice Jackson, it is comparable to a munificent bequest in a pauper’s will. It is less
than a realistic to assert that anyway the guilty driver can be made to pay. The obvious answer is: "With
what?"

This is not to deny that a previous judgment that certainly lends itself to ambiguity considering the facts
disclosed and found by the trial court does interpose juristic difficulty to the imposition of liability on the
offending taxicab company. There can be no blinking the fact though that if it did not place such vehicles
on the road driven in such a reckless and culpable manner resulting in a ten-year old boy being hurled
about forty meters away from the point of impact, this tragedy could have been avoided. To say now
that doubts engendered by the previous ruling in the culpa aquiliana suit could nullify what the law
decrees as to the subsidiary liability of the employer in the criminal case finding the accused guilty
would be fraught with pernicious consequences. The party just as much responsible for the mishap, with
his operation of the transportation service, would be absolved from liability. It need not be so, but
certainly for entrepreneurs more enterprising than careful, not excessively concerned with the safety of
the traveling public, it could be a green light for less vigilance over the conduct of their drivers. The
resulting injury to public safety is not hard to imagine. Moreover, from the standpoint of the feelings of
the bereaved parents, and this is just as important a policy consideration, I feel that no avenue should
be left unexplored to mitigate the harshness of fate. To paraphrase Justice Malcolm, there is not enough
money in the entire world to compensate the parents for the loss of their child. 4

To repeat, the decision reached has my full concurrence.

BARREDO, J., concurring:chanrob1es virtual 1aw library

On strictly legal considerations, it would seem possible to dismiss the petition for review in this case. But
there are certain considerations of equity and substantial justice obviously underlying the cause of
petitioners which I find difficult to ignore. It would be unfair and unjust to deprive said petitioners of
their right to damages for the death of their child unquestionably caused by the fault of respondent’s
employee merely because the dispositive portion of the decision of Judge Amores in the criminal case
appears to be rather equivocal on its face as to respondent’s liability therefor, albeit under the
incontrovertible facts extant in the record such liability is indisputable in law and the language of Judge
Amores’ judgment does not anyway exonerate either respondent’s driver or private respondent, and
what is more, does not exclude the idea that, as explained in the able main opinion of Mr. Justice Castro,
the judge intended to merely adopt and incorporate in said judgment the assessment of amount of
damages which said judge himself had already made in the civil case he had previously decided. It is on
these fundamental considerations that I base my concurrence in the judgment in this case.

As I have already indicated, from the standpoint of strict adjective law, the petition should be dismissed
because in truth, there is yet no showing that any attempt has been made by petitioners to have the
judgment in the criminal cases, assuming it includes an imposition of civil liability upon the accused
driver, Romeo N. Punzalan, executed. What appears in the record is that it was the writ of execution
issued against said Punzalan in the previous civil case that was returned unsatisfied. Of course, this point
is highly technical, because all that has to be done is for petitioners to have another execution in the
criminal case, which it can even now be foreseen will have exactly the same result. I am therefore
agreeable as a matter of equity that the Court hold that for all legal intents and purposes, We may
consider the return of insolvency of Punzalan in the civil case as in effect the return in the criminal case,
since equity considers as done what ought to have been done when otherwise injustice would result.
And so, the paramount question arises, was there any civil liability to impose in the criminal judgment of
Judge Amores?

As related in the main opinion, the judgment of October 27, 1969 in the civil case ordered Punzalan "to
pay plaintiffs (herein petitioners) the sums of P12,000.00 as actual damages, P5,000.00 as moral and
exemplary damages, and P10,000.00 as attorney’s fees," although absolving at the same time the herein
private respondent, and then, on October 5, 1970, the judgment in the criminal case was as
follows:jgc:chanrobles.com.ph

"WHEREFORE, the Court finds the accused Romeo Punzalan y Narciso guilty beyond reasonable doubt of
the crime of homicide through reckless imprudence, as defined and penalized under Article 365 of the
Revised Penal Code, attended by the mitigating circumstance of voluntary surrender, and hereby
sentences him to suffer the indeterminate penalty of TWO (2) YEARS, FOUR (4) MONTHS and ONE (1)
DAY of prision correccional, as minimum, to SIX (6) YEARS and ONE (1) DAY of prision mayor, as
maximum, and to pay the costs. The civil liability of the accused already been determined and assessed
in Civil Case No. 427-0, entitled ‘Paulino Padua, Et. Al. v. Romeo Punzalan, Et. Al." (Emphasis supplied)

Succintly, the decisive issue presented to Us now is whether this judgment just transcribed imposes
upon Punzalan a civil liability by adoption by reference of the civil liability already ajudged in the civil
case or it exonerates him from any civil liability arising from the offense of which he has been found
guilty inasmuch as he was already found civilly liable in the civil case. It must be admitted in candor that
both constructions are literally tenable, with the particularity, however, that the first interpretation, if
adopted would not involve the assumption that the judge committed a grievous and palpable error of
law whereas the second would necessarily mean that he did.

It is by now settled beyond all cavil, as to dispense with the citation of jurisprudence, that a negligent act
such as that committed by Punzalan gives rise to at least two separate and independent kinds of
liabilities, (1) the civil liability arising from crime or culpa criminal and (2) the liability arising from civil
negligence or the so-called culpa aquiliana. These two concepts of fault are so distinct from each other
that exoneration from one does not result in exoneration from the other. Adjectively and substantively,
they can be prosecuted separately and independently of each other, although Article 2177 of the Civil
Code precludes recovery of damages twice for the same negligent act or omission, which means that
should there be varying amounts awarded in two separate cases, the plaintiff may recover, in effect,
only the bigger amount. That is to say, if the plaintiff has already been ordered paid an amount in one
case and in the other case the amount adjudged is bigger, he shall be entitled in the second case only to
the excess over the one fixed in the first case, but if he has already been paid a bigger amount in the first
case, he may not recover anymore in the second case. Thus, in the case at bar, inasmuch as Punzalan
had already been sentenced to pay the herein petitioners the amounts above-stated, in the subsequent
criminal case, he could not be adjudged to pay a higher amount.

Now, under Article 100 of the Revised Penal Code, a person criminally liable is also civilly liable, hence,
the judgment in the criminal case is supposed to include the imposition of civil liability, unless the basis
therefor has been shown not to exists, which is not the case here. And since the judgment in question
says that "the civil liability of the accused has already been determined and assessed in Civil Case No.
427-0 entitled Paulino Padua Et. Al. v. Romeo Punzalan Et. Al.," it is but logical to conclude that the
meaning of such statement is that the same amounts of damages fixed in the previous case were being
awarded to the offended party in the criminal case. Otherwise, We would have to indulge in the
assumption that Judge Amores committed the grievous and palpable error of law of exonerating
Punzalan of all civil liabilities in the criminal case just because he had already been sentence to pay
damages in the civil case. I am not ready to accept such assumption. The law and jurisprudence on the
matter are so clear and well-settled that I refuse to believe that a judge of the experience of Judge
Amores would not be cognizant thereof. Besides, Judge Amores knew or ought to have known that
having absolved herein respondent in the civil case, the only possible recourse has left to petitioners to
recover from said respondent damages for the death of their child caused by the indisputable
negligence of his employee Punzalan is in the form of the subsidiary liability of the employer under the
Penal Code. Indeed, I cannot believe that Judge Amores intended to allow respondent to escape liability
altogether, it being evident under the circumstances which he himself has found in both cases, civil and
criminal, that Punzalan, their employee, had caused the death of the ten-year-old child of petitioners
thru reckless imprudence and that in such a situation in the law exacts liability from both the employee
and the employer.

What is more, I consider it but equitable to hold that the rather equivocal phraseology of the decision of
Judge Amores should be read in the sense it was understood by the petitioners, who in the faith and
reliance that the law had been complied with by Judge Amores and that he had accordingly awarded
them in the criminal case the civil liability that by law goes with it, did not anymore move for
clarification or reconsideration nor appeal from said decision. My understanding is that the filing of the
subject civil action by petitioners proceeded from that assumption, namely, that Punzalan has been
found civilly liable for the same amounts adjudged in the civil case and, therefore, respondent is
subsidiarily liable therefor in the face of Punzalan’s insolvency.

Accordingly, I concur in that the order of dismissal of respondent judge should he set aside and that
petitioners’ action should be tried on the merits.

G.R. Nos. 114841-42 October 20, 1995

ATLANTIC GULF AND PACIFIC COMPANY OF MANILA, INC., petitioner,

vs.
COURT OF APPEALS, CARLITO D. CASTILLO, HEIRS OF CRISTETA CASTILLO and
CORNELIO CASTILLO, respondents.

RESOLUTION

REGALADO, J.:

Petitioner moves for the reconsideration of our judgment promulgated in this case on August 23,
1995, contending that (1) private respondents are permitted thereunder to recover damages twice
for the same act or omission, and (2) the interests adjudged on the awarded damages should be
reckoned from the date of finality of our aforesaid judgment rendered herein.

We reject the first submission. It is theorized by petitioner that our affirmance of the judgment of the
trial court, which granted damages for both the "damage proper to the land" and "rentals for the
same property," runs afoul of the proscription in Article 2177 of the Civil Code against double
recovery of damages for the same act.

Petitioner overlooks the fact that private respondents, as plaintiffs in the actions filed in the court
below, specifically alleged that as a result of petitioner's dredging operations the soil of the former's
property "became infertile, salty, unproductive and unsuitable for agriculture." They further averred
that petitioner's heavy equipment "used to utilize (private respondents') land as a depot or parking lot
of these equipment(t) without paying any rent therefor." 1

Respondent Court of Appeals affirmed the factual findings and conclusions of the trial court on the
nature and cause of the twin items of damages sustained by private respondents, thus:

The main reason why (private respondents') properties were damaged, as found by
the trial court, was due to the dredging operations undertaken by (petitioner) on the
area, which findings are supported by the testimony of Carlito Castillo, testifying in
Civil Case No. 10276, and Teodora Dimaculangan, in Civil Case No. 10696. . . .
Neither has (petitioner) asseverated against (private respondents') submission that
their properties were used by (petitioner) as a dump site for its equipment and trucks,
and proof are the photographs of their properties showing tracks left by truck tires on
their properties. (Parenthetical indication of the parties concerned are made for easy
reference.)  2

It is, therefore, clearly apparent that petitioner was guilty of two culpable transgressions on the
property rights of private respondents, that is, for the ruination of the agricultural fertility or utility of
the soil of their property and, further, for the unauthorized use of said property as a dump rile or
depot or petitioner's heavy equipment and trucks. Consequently, albeit with differing amounts, both
courts correctly awarded damages both for the destruction of the land and for the unpaid rentals, or
more correctly denominated, for the reasonable value of its use and occupation of the premises.
There is consequently no merit in said objection of petitioner.

The second proposition of petitioner is better taken, in light of the reconciliation and clarification
undertaken by the Court of the heretofore imprecise and varying pronouncements on the imposition
of interest in judgments for a sum of money.

In the recent case of Eastern Shipping Lines, Inc. vs. Court of Appeals, et al.,  Court adopted
3

interpretative rules on the matter of the imposable interest and the accrual thereof. The rules
pertinent to the interest involved in the case at bar are hereunder briefed as applied to the
controversy on the computation and the reckoning date thereof. 4

When an obligation not constituting a loan or forbearance of money is breached, interest on the
amount of the damages awarded may be imposed at the rate of six percent (6%) per annum. No
interest shall be adjudged on unliquidated claims unless the same can be established with
reasonable certainty. Since the pleadings of herein private respondents in the trial court did not spell
out said amounts with certitude, the legal interest thereon shall run only from the promulgation of
judgment of said court, it being at that stage that the quantification of damages may be deemed to
have been reasonably ascertained.

The actual base for the computation of such legal interest, however, shall be the amount as finally
adjudged by this Court. Furthermore, when our judgment herein becomes final and executory, the
rate of legal interest shall be twelve percent (12%) from such finality until the satisfaction of the total
judgment account, the interim period being effectively equivalent to a forbearance of credit.

ACCORDINGLY, and by way of clarification, the judgment rendered by this Court in the instant case
shall be understood to mean that the legal interest to be paid by petitioner is six percent (6%) of the
amount due computed from September 6, 1990 when judgment was rendered by the trial court.
Additionally, interest of twelve percent (12%) shall be imposed on such total amount due upon
finality of the judgment of the Court herein until the full satisfaction thereof.
SO ORDERED.

G.R. No. 175256               August 23, 2012

LILY LIM, Petitioner,
vs.
KOU CO PING a.k.a. CHARLIE CO, Respondent.

x-----------------------x

G.R. No. 179160

KOU CO PING a.k.a. CHARLIE CO, Petitioner,

vs.
LILY LIM, Respondent.

LEONARDO-DE CASTRO,*

PERLAS-BERNABE,**

DECISION

DEL CASTILLO, J.:

Is it forum shopping for a private complainant to pursue a civil complaint for specific performance
and damages, while appealing the judgment on the civil aspect of a criminal case for estafa?

Before the Court are consolidated Petitions for Review assailing the separate Decisions of the
Second and Seventeenth Divisions of the Court of Appeals (CA) on the above issue.

Lily Lim’s (Lim) Petition for Review assails the October 20, 2005 Resolution of the Second Division
1  2 

in CA-G.R. CV No. 85138, which ruled on the above issue in the affirmative:

Due to the filing of the said civil complaint (Civil Case No. 5112396), Charlie Co filed the instant
motion to dismiss [Lily Lim’s] appeal, alleging that in filing said civil case, Lily Lim violated the rule
against forum shopping as the elements of litis pendentia are present.

This Court agrees. 3

xxxx

IN VIEW OF THE FOREGOING, the appeal is DISMISSED.

SO ORDERED. 4

On the other hand, Charlie Co’s (Co) Petition for Review assails the April 10, 2007 Decision of the
5  6 

Seventeenth Division in CA-G.R. SP No. 93395 for ruling on the same issue in the negative:

We find no grave abuse of discretion committed by respondent judge. The elements of litis
pendentia and forum-shopping were not met in this case. 7
xxxx

WHEREFORE, in view of the foregoing, the instant petition is DENIED. This case is REMANDED to
the court of origin for further proceedings.

SO ORDERED. 8

Factual Antecedents

In February 1999, FR Cement Corporation (FRCC), owner/operator of a cement manufacturing

plant, issued several withdrawal authorities for the account of cement dealers and traders, Fil-
9 

Cement Center and Tigerbilt. These withdrawal authorities state the number of bags that the
dealer/trader paid for and can withdraw from the plant. Each withdrawal authority contained a
provision that it is valid for six months from its date of issuance, unless revoked by FRCC Marketing
Department.

Fil-Cement Center and Tigerbilt, through their administrative manager, Gail Borja (Borja), sold the
withdrawal authorities covering 50,000 bags of cement to Co for the amount of ₱ 3.15 million or ₱
63.00 per bag. On February 15, 1999, Co sold these withdrawal authorities to Lim allegedly at the
10 

price of ₱ 64.00 per bag or a total of ₱ 3.2 million.

11

Using the withdrawal authorities, Lim withdrew the cement bags from FRCC on a staggered basis.
She successfully withdrew 2,800 bags of cement, and sold back some of the withdrawal authorities,
covering 10,000 bags, to Co.

Sometime in April 1999, FRCC did not allow Lim to withdraw the remaining 37,200 bags covered by
the withdrawal authorities. Lim clarified the matter with Co and Borja, who explained that the plant
implemented a price increase and would only release the goods once Lim pays for the price
difference or agrees to receive a lesser quantity of cement. Lim objected and maintained that the
withdrawal authorities she bought were not subject to price fluctuations. Lim sought legal recourse
after her demands for Co to resolve the problem with the plant or for the return of her money had
failed.

The criminal case

An Information for Estafa through Misappropriation or Conversion was filed against Co before
Branch 154 of the Regional Trial Court (RTC) of Pasig City. The accusatory portion thereof reads:

On or about between the months of February and April 1999, in San Juan, Metro Manila and within
the jurisdiction of this Honorable Court, the accused, with intent to defraud Lily Lim, with grave abuse
of confidence, with unfaithfulness, received in trust from Lily Lim cash money in the amount of ₱
2,380,800.00 as payment for the 37,200 bags of cement, under obligation to deliver the 37,200 bags
of cement to said Lily Lim, but far from complying with his obligation, misappropriated, misapplied
and converted to his own personal use and benefit the said amount of ₱ 2,300,800.00 [sic] and
despite demands, the accused failed and refused to return said amount, to the damage and
prejudice of Lily Lim in the amount of ₱ 2,380,800.00.

Contrary to Law. 12
The private complainant, Lily Lim, participated in the criminal proceedings to prove her damages.
She prayed for Co to return her money amounting to ₱ 2,380,800.00, foregone profits, and legal
interest, and for an award of moral and exemplary damages, as well as attorney’s fees. 13

On November 19, 2003, the RTC of Pasig City, Branch 154, rendered its Order acquitting Co of the
14 

estafa charge for insufficiency of evidence. The criminal court’s Order reads:

The first and second elements of the crime of estafa [with abuse of confidence under Article 315,
paragraph 1(b)] for which the accused is being charged and prosecuted were not established by the
prosecution’s evidence.

xxxx

In view of the absence of the essential requisites of the crime of estafa for which the accused is
being charged and prosecuted, as above discussed, the Court has no alternative but to dismiss the
case against the accused for insufficiency of evidence. 15

WHEREFORE, in view of the foregoing, the Demurrer to Evidence is GRANTED, and the accused

is hereby ACQUITTED of the crime of estafa charged against him under the present information for
insufficiency of evidence.

Insofar as the civil liability of the accused is concerned, however, set this case for the reception of
his evidence on the matter on December 11, 2003 at 8:30 o’clock [sic] in the morning.

SO ORDERED. 16

After the trial on the civil aspect of the criminal case, the Pasig City RTC also relieved Co of civil
liability to Lim in its December 1, 2004 Order. The dispositive portion of the Order reads as follows:
17 

WHEREFORE, premises considered, judgment is hereby rendered holding the accused CHARLIE

CO not civilly liable to the private complainant Lily Lim.

SO ORDERED. 18

Lim sought a reconsideration of the above Order, arguing that she has presented preponderant
evidence that Co committed estafa against her. 19

The trial court denied the motion in its Order dated February 21, 2005.
20 

On March 14, 2005, Lim filed her notice of appeal on the civil aspect of the criminal case. Her
21 

appeal was docketed as CA-G.R. CV No. 85138 and raffled to the Second Division of the CA.

The civil action for specific performance

On April 19, 2005, Lim filed a complaint for specific performance and damages before Branch 21 of
the RTC of Manila. The defendants in the civil case were Co and all other parties to the withdrawal
authorities, Tigerbilt, Fil-Cement Center, FRCC, Southeast Asia Cement, and La Farge Corporation.
The complaint, docketed as Civil Case No. 05-112396, asserted two causes of action: breach of
contract and abuse of rights. Her allegations read:
 ALLEGATIONS COMMON
TO ALL CAUSES OF ACTION

xxxx

23. Charlie Co obligated himself to deliver to Lily Lim 50,000 bags of cement of ₱ 64.00 per bag on
an x-plant basis within 3 months from the date of their transaction, i.e. February 15, 1999. Pursuant
to said agreement, Lily Lim paid Charlie Co ₱ 3.2 Million while Charlie Co delivered to Lily Lim FR
Cement Withdrawal Authorities representing 50,000 bags of cement.

24. The withdrawal authorities issued by FR Cement Corp. allowed the assignee or holder thereof to
withdraw within a six-month period from date a certain amount of cement indicated therein. The
Withdrawal Authorities given to Lily Lim were dated either 3 February 1999 or 23 February 1999.
The Withdrawal Authorities were first issued to Tigerbilt and Fil-Cement Center which in turn
assigned them to Charlie Co. Charlie Co then assigned the Withdrawal Authorities to Lily Lim on
February 15, 1999. Through these series of assignments, Lily Lim acquired all the rights (rights to
withdraw cement) granted in said Withdrawal Authorities.

25. That these Withdrawal Authorities are valid is established by the fact that FR Cement earlier
allowed Lily Lim to withdraw 2,800 bags of cement on the basis thereof.

26. However, sometime 19 April 1999 (within the three (3)-month period agreed upon by Charlie Co
and Lily Lim and certainly within the six (6)-month period indicated in the Withdrawal Authorities
issued by FR Cement Corp.), Lily Lim attempted but failed to withdraw the remaining bags of cement
on account of FR Cement’s unjustified refusal to honor the Withdrawal Authorities. x x x

xxxx

FIRST CAUSE OF ACTION:

BREACH OF CONTRACT

30. Charlie Co committed and is therefore liable to deliver to Lily Lim 37,200 bags of cement. If he
cannot, then he must pay her the current fair market value thereof.

31. FR Cement Corporation is also liable to deliver to Lily Lim the amount of cement as indicated in
the Withdrawal Authorities it issued. xxx FR Cement Corporation has no right to impose price
adjustments as a qualification for honoring the Withdrawal Authorities.

32. Fil-Cement Center, Tigerbilt and Gail Borja as the original holders/ assignees of the Withdrawal
Authorities repeatedly assured Lily Lim that the same were valid and would be honored. They are
liable to make good on their assurances.

SECOND CAUSE OF ACTION:

ABUSE OF RIGHTS AND UNJUST ENRICHMENT

33. Charlie Co’s acts of falsely representing to Lily Lim that she may be able to withdraw the cement
from FR Cement Corp. caused Lily Lim to incur expenses and losses. Such act was made without
justice, without giving Lily Lim what is due her and without observing honesty and good faith, all
violative of the law, more specifically Articles 19 and 20 of the Civil Code. Such willful act was also
made by Charlie Co in a manner contrary to morals, good customs or public policy, in violation of
Article 21 of the Civil Code.
34. FR Cement Corporation’s unjust refusal to honor the Withdrawal Authorities they issued also
caused damage to Lily Lim. Further, FR Cement Corporation’s act of withholding the 37,200 bags of
cement despite earning income therefor constitutes as an unjust enrichment because FR Cement
Corporation acquired income through an act or performance by another or any other means at the
expense of another without just or legal ground in violation of Article 22 of the Civil Code.

35. Fil-Cement Center, Tigerbilt and Gail Borja’s false assurances that Lily Lim would be able to
withdraw the remaining 37,200 bags of cement caused Lily Lim to incur expenses and losses. x x x
Moreover, Fil-Cement Center admitted receiving payment for said amount of cement, thus they are
deemed to have come into possession of money at the expense of Lily Lim without just or legal
ground, in violation of Article 22 of the Civil Code.

THIRD CAUSE OF ACTION:

MORAL AND EXEMPLARY DAMAGES and
ATTORNEY’S FEES AND COSTS OF SUIT 22

Lim prayed for Co to honor his contractual commitments either by delivering the 37,200 bags of
cement, making arrangements with FRCC to allow Lim to withdraw the cement, or to pay for their
value. She likewise asked that the defendants be held solidarily liable to her for the damages she
incurred in her failed attempts to withdraw the cement and for the damages they inflicted on her as a
result of their abuse of their rights. 23

Motions to dismiss both actions

In reaction to the filing of the civil complaint for specific performance and damages, Co filed motions
to dismiss the said civil case and Lim’s appeal in the civil aspect of the estafa case or CA-G.R. CV
24 

No. 85138. He maintained that the two actions raise the same issue, which is Co’s liability to Lim for
25 

her inability to withdraw the bags of cement, and should be dismissed on the ground of lis
26 

pendens and forum shopping.

Ruling of the Court of Appeals Second Division in CA-G.R CV No. 85138

The appellate court (Second Division) favorably resolved Co’s motion and dismissed Lim’s appeal
from the civil aspect of the estafa case. In its Resolution dated October 20, 2005, the CA Second
Division held that the parties, causes of action, and reliefs prayed for in Lim’s appeal and in her civil
complaint are identical. Both actions seek the same relief, which is the payment of the value of the
37,200 bags of cement. Thus, the CA Second Division dismissed Lim’s appeal for forum
27 

shopping. The CA denied Lim’s motion for reconsideration.

28  29  30

Lim filed the instant petition for review, which was docketed as G.R. No. 175256.

Ruling of the Manila Regional Trial Court in Civil Case No. 05-112396

Meanwhile, the Manila RTC denied Co’s Motion to Dismiss in an Order dated December 6, 2005.
31 

The Manila RTC held that there was no forum shopping because the causes of action invoked in the
two cases are different. It observed that the civil complaint before it is based on an obligation arising
from contract and quasi-delict, whereas the civil liability involved in the appeal of the criminal case
arose from a felony.
Co filed a petition for certiorari, docketed as CA-G.R. SP No. 93395, before the appellate court. He
32 

prayed for the nullification of the Manila RTC’s Order in Civil Case No. 05-112396 for having been
issued with grave abuse of discretion. 33

Ruling of the Court of Appeals Seventeenth Division in CA-G.R. SP No. 93395

The CA Seventeenth Division denied Co’s petition and remanded the civil complaint to the trial court
for further proceedings. The CA Seventeenth Division agreed with the Manila RTC that the elements
of litis pendentia and forum shopping are not met in the two proceedings because they do not share
the same cause of action. 34

The CA denied Co’s motion for reconsideration.

35  36

Co filed the instant Petition for Review, which was docketed as G.R. No. 179160.

Upon Co’s motion, the Court resolved to consolidate the two petitions.
37  38

Kou Co Ping’s arguments

Co maintains that Lim is guilty of forum shopping because she is asserting only one cause of action
in CA-G.R. CV No. 85138 (the appeal from the civil aspect of Criminal Case No. 116377) and in Civil
Case No. 05-112396, which is for Co’s violation of her right to receive 37,200 bags of cement.
Likewise, the reliefs sought in both cases are the same, that is, for Co to deliver the 37,200 bags of
cement or its value to Lim. That Lim utilized different methods of presenting her case – a criminal
action for estafa and a civil complaint for specific performance and damages – should not detract
from the fact that she is attempting to litigate the same cause of action twice. 39

Co makes light of the distinction between civil liability ex contractu and ex delicto. According to him,
granting that the two civil liabilities are independent of each other, nevertheless, the two cases
arising from them would have to be decided using the same evidence and going over the same set
of facts. Thus, any judgment rendered in one of these cases will constitute res judicata on the other. 40

In G.R. No. 179160, Co prays for the annulment of the CA Decision and Resolution in CA-G.R. SP
No. 93395, for a declaration that Lim is guilty of forum shopping, and for the dismissal of Civil Case
No. 05-112396. 41

In G.R. No. 175256, Co prays for the affirmation of the CA Decision in CA-G.R. CV No. 85138
(which dismissed Lim’s appeal from the trial court’s decision in Criminal Case No. 116377). 42

Lily Lim’s arguments

Lim admits that the two proceedings involve substantially the same set of facts because they arose
from only one transaction. She is quick to add, however, that a single act or omission does not
43 

always make a single cause of action. It can possibly give rise to two separate civil liabilities on the
44 

part of the offender – (1) ex delicto or civil liability arising from crimes, and (2) independent civil
liabilities or those arising from contracts or intentional torts. The only caveat provided in Article 2177
of the Civil Code is that the offended party cannot recover damages twice for the same act or
omission. Because the law allows her two independent causes of action, Lim contends that it is not
45 

forum shopping to pursue them. 46

She then explains the separate and distinct causes of action involved in the two cases. Her cause of
action in CA-G.R CV No. 85138 is based on the crime of estafa. Co violated Lim’s right to be
protected against swindling. He represented to Lim that she can withdraw 37,200 bags of cement
using the authorities she bought from him. This is a fraudulent representation because Co knew, at
the time that they entered into the contract, that he could not deliver what he promised. On the other 47 

hand, Lim’s cause of action in Civil Case No. 05-112396 is based on contract. Co violated Lim’s
rights as a buyer in a contract of sale. Co received payment for the 37,200 bags of cement but did
not deliver the goods that were the subject of the sale. 48

In G.R. No. 179160, Lim prays for the denial of Co’s petition. In G.R. No. 175256, she prays for the
49 

reversal of the CA Decision in CA-G.R. CV No. 85138, for a declaration that she is not guilty of
forum shopping, and for the reinstatement of her appeal in Criminal Case No. 116377 to the CA. 50

Issue

Did Lim commit forum shopping in filing the civil case for specific performance and damages during
the pendency of her appeal on the civil aspect of the criminal case for estafa?

Our Ruling

A single act or omission that causes damage to an offended party may give rise to two separate civil
liabilities on the part of the offender - (1) civil liability ex delicto, that is, civil liability arising from the
51 

criminal offense under Article 100 of the Revised Penal Code, and (2) independent civil liability, that
52 

is, civil liability that may be pursued independently of the criminal proceedings. The independent civil
liability may be based on "an obligation not arising from the act or omission complained of as a
felony," as provided in Article 31 of the Civil Code (such as for breach of contract or for tort ). It may 53 

also be based on an act or omission that may constitute felony but, nevertheless, treated
independently from the criminal action by specific provision of Article 33 of the Civil Code ("in cases
of defamation, fraud and physical injuries").

The civil liability arising from the offense or ex delicto is based on the acts or omissions that
constitute the criminal offense; hence, its trial is inherently intertwined with the criminal action. For
this reason, the civil liability ex delicto is impliedly instituted with the criminal offense. If the action for
54 

the civil liability ex delicto is instituted prior to or subsequent to the filing of the criminal action, its
proceedings are suspended until the final outcome of the criminal action. The civil liability based on
55 

delict is extinguished when the court hearing the criminal action declares that "the act or omission
from which the civil liability may arise did not exist." 56

On the other hand, the independent civil liabilities are separate from the criminal action and may be
pursued independently, as provided in Articles 31 and 33 of the Civil Code, which state that:

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

ART. 33. In cases of defamation, fraud, and physical injuries a civil action for damages, entirely
separate and distinct from the criminal action, may be brought by the injured party. Such civil action
shall proceed independently of the criminal prosecution, and shall require only a preponderance of
evidence. (Emphasis supplied.)
Because of the distinct and independent nature of the two kinds of civil liabilities, jurisprudence holds
that the offended party may pursue the two types of civil liabilities simultaneously or cumulatively,
without offending the rules on forum shopping, litis pendentia, or res judicata. As explained
57 

in Cancio, Jr. v. Isip:

58

One of the elements of res judicata is identity of causes of action. In the instant case, it must be
stressed that the action filed by petitioner is an independent civil action, which remains separate and
distinct from any criminal prosecution based on the same act. Not being deemed instituted in the
criminal action based on culpa criminal, a ruling on the culpability of the offender will have no
bearing on said independent civil action based on an entirely different cause of action, i.e., culpa
contractual.

In the same vein, the filing of the collection case after the dismissal of the estafa cases against the
offender did not amount to forum-shopping. The essence of forum shopping is the filing of multiple
suits involving the same parties for the same cause of action, either simultaneously or successively,
to secure a favorable judgment. Although the cases filed by [the offended party] arose from the
same act or omission of [the offender], they are, however, based on different causes of action. The
criminal cases for estafa are based on culpa criminal while the civil action for collection is anchored
on culpa contractual. Moreover, there can be no forum-shopping in the instant case because the law
expressly allows the filing of a separate civil action which can proceed independently of the criminal
action.59

Since civil liabilities arising from felonies and those arising from other sources of obligations are
authorized by law to proceed independently of each other, the resolution of the present issue hinges
on whether the two cases herein involve different kinds of civil obligations such that they can
proceed independently of each other. The answer is in the affirmative.

The first action is clearly a civil action ex delicto, it having been instituted together with the criminal
action.60

On the other hand, the second action, judging by the allegations contained in the complaint, is a civil
61 

action arising from a contractual obligation and for tortious conduct (abuse of rights). In her civil
complaint, Lim basically alleges that she entered into a sale contract with Co under the following
terms: that she bought 37,200 bags of cement at the rate of ₱ 64.00 per bag from Co; that, after full
payment, Co delivered to her the withdrawal authorities issued by FRCC corresponding to these
bags of cement; that these withdrawal authorities will be honored by FRCC for six months from the
dates written thereon. Lim then maintains that the defendants breached their contractual obligations
to her under the sale contract and under the withdrawal authorities; that Co and his co-defendants
wanted her to pay more for each bag of cement, contrary to their agreement to fix the price at ₱
64.00 per bag and to the wording of the withdrawal authorities; that FRCC did not honor the terms of
the withdrawal authorities it issued; and that Co did not comply with his obligation under the sale
contract to deliver the 37,200 bags of cement to Lim. From the foregoing allegations, it is evident
that Lim seeks to enforce the defendants’ contractual obligations, given that she has already
performed her obligations. She prays that the defendants either honor their part of the contract or
pay for the damages that their breach has caused her.

Lim also includes allegations that the actions of the defendants were committed in such manner as
to cause damage to Lim without regard for morals, good customs and public policy. These
allegations, if proven, would constitute tortious conduct (abuse of rights under the Human Relations
provisions of the Civil Code).
Thus, Civil Case No. 05-112396 involves only the obligations arising from contract and from tort,
whereas the appeal in the estafa case involves only the civil obligations of Co arising from the
offense charged. They present different causes of action, which under the law, are considered
"separate, distinct, and independent" from each other. Both cases can proceed to their final
62 

adjudication, subject to the prohibition on double recovery under Article 2177 of the Civil Code. 63

WHEREFORE, premises considered, Lily Lim’s Petition in G.R. No. 175256 is GRANTED. The
assailed October 20, 2005 Resolution of the Second Division of the Court of Appeals in CA-G.R. CV
No. 85138 is REVERSED and SET ASIDE. Lily Lim’s appeal in CA-G.R. CV No. 85138 is
ordered REINSTATED and the Court of Appeals is DIRECTED to RESOLVE the same
with DELIBERATE DISPATCH.

Charlie Co’s Petition G.R. No. 179160 is DENIED. The assailed April 10, 2007 Decision of the
Seventeenth Division of the Court of Appeals in CA-G.R. SP No. 93395 is AFFIRMED in toto.

SO ORDERED.

G.R. No. L-10134             June 29, 1957

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.

xxx     xxx     xxx

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.

G.R. No. L-24803 May 26, 1977

PEDRO ELCANO and PATRICIA ELCANO, in their capacity as Ascendants of Agapito Elcano,
deceased, plaintiffs-appellants,
vs.
REGINALD HILL, minor, and MARVIN HILL, as father and Natural Guardian of said
minor, defendants-appellees.

Cruz & Avecilla for appellants.

Marvin R. Hill & Associates for appellees.

BARREDO, J.:

Appeal from the order of the Court of First Instance of Quezon City dated January 29, 1965 in Civil
Case No. Q-8102, Pedro Elcano et al. vs. Reginald Hill et al. dismissing, upon motion to dismiss of
defendants, the complaint of plaintiffs for recovery of damages from defendant Reginald Hill, a
minor, married at the time of the occurrence, and his father, the defendant Marvin Hill, with whom he
was living and getting subsistence, for the killing by Reginald of the son of the plaintiffs, named
Agapito Elcano, of which, when criminally prosecuted, the said accused was acquitted on the ground
that his act was not criminal, because of "lack of intent to kill, coupled with mistake."

Actually, the motion to dismiss based on the following grounds:

1. The present action is not only against but a violation of section 1, Rule 107, which
is now Rule III, of the Revised Rules of Court;

2. The action is barred by a prior judgment which is now final and or in res-
adjudicata;

3. The complaint had no cause of action against defendant Marvin Hill, because he
was relieved as guardian of the other defendant through emancipation by marriage.

(P. 23, Record [p. 4, Record on Appeal.])

was first denied by the trial court. It was only upon motion for reconsideration of the defendants of
such denial, reiterating the above grounds that the following order was issued:

Considering the motion for reconsideration filed by the defendants on January 14,
1965 and after thoroughly examining the arguments therein contained, the Court
finds the same to be meritorious and well-founded.

WHEREFORE, the Order of this Court on December 8, 1964 is hereby reconsidered

by ordering the dismissal of the above entitled case.

SO ORDERED.

Quezon City, Philippines, January 29, 1965. (p. 40, Record [p. 21, Record on
Appeal.)
Hence, this appeal where plaintiffs-appellants, the spouses Elcano, are presenting for Our resolution
the following assignment of errors:

THE LOWER COURT ERRED IN DISMISSING THE CASE BY UPHOLDING THE

CLAIM OF DEFENDANTS THAT -

THE PRESENT ACTION IS NOT ONLY AGAINST BUT ALSO A VIOLATION OF

SECTION 1, RULE 107, NOW RULE 111, OF THE REVISED RULES OF COURT,
AND THAT SECTION 3(c) OF RULE 111, RULES OF COURT IS APPLICABLE;

II

THE ACTION IS BARRED BY A PRIOR JUDGMENT WHICH IS NOW FINAL OR

RES-ADJUDICTA;

III

THE PRINCIPLES OF QUASI-DELICTS, ARTICLES 2176 TO 2194 OF THE CIVIL

CODE, ARE INAPPLICABLE IN THE INSTANT CASE; and

IV

THAT THE COMPLAINT STATES NO CAUSE OF ACTION AGAINST DEFENDANT

MARVIN HILL BECAUSE HE WAS RELIEVED AS GUARDIAN OF THE OTHER
DEFENDANT THROUGH EMANCIPATION BY MARRIAGE. (page 4, Record.)

It appears that for the killing of the son, Agapito, of plaintiffs-appellants, defendant- appellee
Reginald Hill was prosecuted criminally in Criminal Case No. 5102 of the Court of First Instance of
Quezon City. After due trial, he was acquitted on the ground that his act was not criminal because of
"lack of intent to kill, coupled with mistake." Parenthetically, none of the parties has favored Us with
a copy of the decision of acquittal, presumably because appellants do not dispute that such indeed
was the basis stated in the court's decision. And so, when appellants filed their complaint against
appellees Reginald and his father, Atty. Marvin Hill, on account of the death of their son, the
appellees filed the motion to dismiss above-referred to.

As We view the foregoing background of this case, the two decisive issues presented for Our
resolution are:

1. Is the present civil action for damages barred by the acquittal of Reginald in the criminal case
wherein the action for civil liability, was not reversed?

2. May Article 2180 (2nd and last paragraphs) of the Civil Code he applied against Atty. Hill,
notwithstanding the undisputed fact that at the time of the occurrence complained of. Reginald,
though a minor, living with and getting subsistenee from his father, was already legally married?

The first issue presents no more problem than the need for a reiteration and further clarification of
the dual character, criminal and civil, of fault or negligence as a source of obligation which was firmly
established in this jurisdiction in Barredo vs. Garcia, 73 Phil. 607. In that case, this Court postulated,
on the basis of a scholarly dissertation by Justice Bocobo on the nature of culpa aquiliana in relation
to culpa criminal or delito and mere culpa or fault, with pertinent citation of decisions of the Supreme
Court of Spain, the works of recognized civilians, and earlier jurisprudence of our own, that the same
given act can result in civil liability not only under the Penal Code but also under the Civil Code.
Thus, the opinion holds:

The, above case is pertinent because it shows that the same act machinist. come
under both the Penal Code and the Civil Code. In that case, the action of the agent
killeth unjustified and fraudulent and therefore could have been the subject of a
criminal action. And yet, it was held to be also a proper subject of a civil action under
article 1902 of the Civil Code. It is also to be noted that it was the employer and not
the employee who was being sued. (pp. 615-616, 73 Phil.). 1

It will be noticed that the defendant in the above case could have been prosecuted in
a criminal case because his negligence causing the death of the child was
punishable by the Penal Code. Here is therefore a clear instance of the same act of
negligence being a proper subject matter either of a criminal action with its
consequent civil liability arising from a crime or of an entirely separate and
independent civil action for fault or negligence under article 1902 of the Civil Code.
Thus, in this jurisdiction, the separate individuality of a cuasi-delito or culpa
aquiliana, under the Civil Code has been fully and clearly recognized, even with
regard to a negligent act for which the wrongdoer could have been prosecuted and
convicted in a criminal case and for which, after such a conviction, he could have
been sued for this civil liability arising from his crime. (p. 617, 73 Phil.) 2

It is most significant that in the case just cited, this Court specifically applied article 1902
of the Civil Code. It is thus that although J. V. House could have been criminally
prosecuted for reckless or simple negligence and not only punished but also made civilly
liable because of his criminal negligence, nevertheless this Court awarded damages in
an independent civil action for fault or negligence under article 1902 of the Civil Code. (p.
618, 73 Phil.) 3

The legal provisions, authors, and cases already invoked should ordinarily be
sufficient to dispose of this case. But inasmuch as we are announcing doctrines that
have been little understood, in the past, it might not he inappropriate to indicate their
foundations.

Firstly, the Revised Penal Code in articles 365 punishes not only reckless but also
simple negligence. If we were to hold that articles 1902 to 1910 of the Civil Code
refer only to fault or negligence not punished by law, accordingly to the literal import
of article 1093 of the Civil Code, the legal institution of culpa aquiliana would have
very little scope and application in actual life. Death or injury to persons and damage
to property- through any degree of negligence - even the slightest - would have to be
Idemnified only through the principle of civil liability arising from a crime. In such a
state of affairs, what sphere would remain for cuasi-delito or culpa aquiliana? We are
loath to impute to the lawmaker any intention to bring about a situation so absurd and
anomalous. Nor are we, in the interpretation of the laws, disposed to uphold the letter
that killeth rather than the spirit that giveth life. We will not use the literal meaning of
the law to smother and render almost lifeless a principle of such ancient origin and
such full-grown development as culpa aquiliana or cuasi-delito, which is conserved
and made enduring in articles 1902 to 1910 of the Spanish Civil Code.
 Secondary, to find the accused guilty in a criminal case, proof of guilt beyond
reasonable doubt is required, while in a civil case, preponderance of evidence is
sufficient to make the defendant pay in damages. There are numerous cases of
criminal negligence which can not be shown beyond reasonable doubt, but can be
proved by a preponderance of evidence. In such cases, the defendant can and
should be made responsible in a civil action under articles 1902 to 1910 of the Civil
Code. Otherwise. there would be many instances of unvindicated civil wrongs. "Ubi
jus Idemnified remedium." (p. 620,73 Phil.)

Fourthly, because of the broad sweep of the provisions of both the Penal Code and
the Civil Code on this subject, which has given rise to the overlapping or concurrence
of spheres already discussed, and for lack of understanding of the character and
efficacy of the action for culpa aquiliana, there has grown up a common practice to
seek damages only by virtue of the civil responsibility arising from a crime, forgetting
that there is another remedy, which is by invoking articles 1902-1910 of the Civil
Code. Although this habitual method is allowed by, our laws, it has nevertheless
rendered practically useless and nugatory the more expeditious and effective remedy
based on culpa aquiliana or culpa extra-contractual. In the present case, we are
asked to help perpetuate this usual course. But we believe it is high time we pointed
out to the harms done by such practice and to restore the principle of responsibility
for fault or negligence under articles 1902 et seq. of the Civil Code to its full rigor. It is
high time we caused the stream of quasi-delict or culpa aquiliana to flow on its own
natural channel, so that its waters may no longer be diverted into that of a crime
under the Penal Code. This will, it is believed, make for the better safeguarding or
private rights because it realtor, an ancient and additional remedy, and for the further
reason that an independent civil action, not depending on the issues, limitations and
results of a criminal prosecution, and entirely directed by the party wronged or his
counsel, is more likely to secure adequate and efficacious redress. (p. 621, 73 Phil.)

Contrary to an immediate impression one might get upon a reading of the foregoing excerpts from
the opinion in Garcia that the concurrence of the Penal Code and the Civil Code therein referred to
contemplate only acts of negligence and not intentional voluntary acts - deeper reflection would
reveal that the thrust of the pronouncements therein is not so limited, but that in fact it actually
extends to fault or culpa. This can be seen in the reference made therein to the Sentence of the
Supreme Court of Spain of February 14, 1919, supra, which involved a case of fraud or estafa, not a
negligent act. Indeed, Article 1093 of the Civil Code of Spain, in force here at the time of Garcia,
provided textually that obligations "which are derived from acts or omissions in which fault or
negligence, not punishable by law, intervene shall be the subject of Chapter II, Title XV of this book
(which refers to quasi-delicts.)" And it is precisely the underline qualification, "not punishable by law",
that Justice Bocobo emphasized could lead to an ultimo construction or interpretation of the letter of
the law that "killeth, rather than the spirit that giveth lift- hence, the ruling that "(W)e will not use the
literal meaning of the law to smother and render almost lifeless a principle of such ancient origin and
such full-grown development as culpa aquiliana or quasi-delito, which is conserved and made
enduring in articles 1902 to 1910 of the Spanish Civil Code." And so, because Justice Bacobo was
Chairman of the Code Commission that drafted the original text of the new Civil Code, it is to be
noted that the said Code, which was enacted after the Garcia doctrine, no longer uses the term, 11
not punishable by law," thereby making it clear that the concept of culpa aquiliana includes acts
which are criminal in character or in violation of the penal law, whether voluntary or matter. Thus, the
corresponding provisions to said Article 1093 in the new code, which is Article 1162, simply says,
"Obligations derived from quasi-delicto shall be governed by the provisions of Chapter 2, Title XVII
of this Book, (on quasi-delicts) and by special laws." More precisely, a new provision, Article 2177 of
the new code provides:
 ART. 2177. Responsibility for fault or negligence under the preceding article is
entirely separate and distinct from the civil liability arising from negligence under the
Penal Code. But the plaintiff cannot recover damages twice for the same act or
omission of the defendant.

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

Although, again, this Article 2177 does seem to literally refer to only acts of negligence, the same
argument of Justice Bacobo about construction that upholds "the spirit that giveth lift- rather than that
which is literal that killeth the intent of the lawmaker should be observed in applying the same. And
considering that the preliminary chapter on human relations of the new Civil Code definitely
establishes the separability and independence of liability in a civil action for acts criminal in character
(under Articles 29 to 32) from the civil responsibility arising from crime fixed by Article 100 of the
Revised Penal Code, and, in a sense, the Rules of Court, under Sections 2 and 3 (c), Rule 111,
contemplate also the same separability, it is "more congruent with the spirit of law, equity and justice,
and more in harmony with modern progress"- to borrow the felicitous relevant language in Rakes vs.
Atlantic. Gulf and Pacific Co., 7 Phil. 359, to hold, as We do hold, that Article 2176, where it refers to
"fault or negligencia covers not only acts "not punishable by law" but also acts criminal in character,
whether intentional and voluntary or negligent. Consequently, a separate civil action lies against the
offender in a criminal act, whether or not he is criminally prosecuted and found guilty or acquitted,
provided that the offended party is not allowed, if he is actually charged also criminally, to recover
damages on both scores, and would be entitled in such eventuality only to the bigger award of the
two, assuming the awards made in the two cases vary. In other words, the extinction of civil liability
referred to in Par. (e) of Section 3, Rule 111, refers exclusively to civil liability founded on Article 100
of the Revised Penal Code, whereas the civil liability for the same act considered as a quasi-
delict only and not as a crime is not estinguished even by a declaration in the criminal case that the
criminal act charged has not happened or has not been committed by the accused. Briefly stated,
We here hold, in reiteration of Garcia, that culpa aquiliana includes voluntary and negligent acts
which may be punishable by law.4

It results, therefore, that the acquittal of Reginal Hill in the criminal case has not extinguished his
liability for quasi-delict, hence that acquittal is not a bar to the instant action against him.

Coming now to the second issue about the effect of Reginald's emancipation by marriage on the
possible civil liability of Atty. Hill, his father, it is also Our considered opinion that the conclusion of
appellees that Atty. Hill is already free from responsibility cannot be upheld.

While it is true that parental authority is terminated upon emancipation of the child (Article 327, Civil
Code), and under Article 397, emancipation takes place "by the marriage of the minor (child)", it is,
however, also clear that pursuant to Article 399, emancipation by marriage of the minor is not really
full or absolute. Thus "(E)mancipation by marriage or by voluntary concession shall terminate
parental authority over the child's person. It shall enable the minor to administer his property as
though he were of age, but he cannot borrow money or alienate or encumber real property without
the consent of his father or mother, or guardian. He can sue and be sued in court only with the
assistance of his father, mother or guardian."

Now under Article 2180, "(T)he obligation imposed by article 2176 is demandable not only for one's
own acts or omissions, but also for those of persons for whom one is responsible. The father and, in
case of his death or incapacity, the mother, are responsible. The father and, in case of his death or
incapacity, the mother, are responsible for the damages caused by the minor children who live in
their company." In the instant case, it is not controverted that Reginald, although married, was living
with his father and getting subsistence from him at the time of the occurrence in question. Factually,
therefore, Reginald was still subservient to and dependent on his father, a situation which is not
unusual.

It must be borne in mind that, according to Manresa, the reason behind the joint and solidary liability
of presuncion with their offending child under Article 2180 is that is the obligation of the parent to
supervise their minor children in order to prevent them from causing damage to third persons. 5 On
the other hand, the clear implication of Article 399, in providing that a minor emancipated by marriage
may not, nevertheless, sue or be sued without the assistance of the parents, is that such emancipation
does not carry with it freedom to enter into transactions or do any act that can give rise to judicial
litigation. (See Manresa, Id., Vol. II, pp. 766-767, 776.) And surely, killing someone else invites judicial
action. Otherwise stated, the marriage of a minor child does not relieve the parents of the duty to see to it
that the child, while still a minor, does not give answerable for the borrowings of money and alienation or
encumbering of real property which cannot be done by their minor married child without their consent.
(Art. 399; Manresa, supra.)

Accordingly, in Our considered view, Article 2180 applies to Atty. Hill notwithstanding the
emancipation by marriage of Reginald. However, inasmuch as it is evident that Reginald is now of
age, as a matter of equity, the liability of Atty. Hill has become milling, subsidiary to that of his son.

WHEREFORE, the order appealed from is reversed and the trial court is ordered to proceed in
accordance with the foregoing opinion. Costs against appellees.

Fernando (Chairman), Antonio, and Martin, JJ., concur.

Concepcion Jr., J, is on leave.

Martin, J, was designated to sit in the Second Division.

Separate Opinions

 
AQUINO, J, concurring:

Article 2176 of the Civil Code comprehends any culpable act, which is blameworthy, when judged by
accepted legal standards. "The Idea thus expressed is undoubtedly board enough to include any
rational conception of liability for the tortious acts likely to be developed in any society." (Street, J. in
Daywalt vs. Corporacion de PP. Agustinos Recoletos, 39 Phil. 587, 600). See article 38, Civil Code
and the ruling that "the infant tortfeasor is liable in a civil action to the injured person in the same
manner and to the same extent as an adult" (27 Am. Jur. 812 cited by Bocobo, J., in Magtibay vs.
Tiangco, 74 Phil. 576, 579).

Separate Opinions

AQUINO, J, concurring:

Article 2176 of the Civil Code comprehends any culpable act, which is blameworthy, when judged by
accepted legal standards. "The Idea thus expressed is undoubtedly board enough to include any
rational conception of liability for the tortious acts likely to be developed in any society." (Street, J. in
Daywalt vs. Corporacion de PP. Agustinos Recoletos, 39 Phil. 587, 600). See article 38, Civil Code
and the ruling that "the infant tortfeasor is liable in a civil action to the injured person in the same
manner and to the same extent as an adult" (27 Am. Jur. 812 cited by Bocobo, J., in Magtibay vs.
Tiangco, 74 Phil. 576, 579).

Footnotes

1 Referring to Sentence of the Supreme Court of Spain of February 14, 1919.

2 Referring to Manzanares vs. Moreta, 38 Phil. 821.

3 Referring to Bernal et al, vs. House et al., 54 Phil. 327.

4 Parenthetically, Manresa seemingly holds. the contrary view thus:

"Sin embargo, para no ineurrir en error hay que tener en cuenta que los lineage. del
precepts contenido en el presente articulo son bastante mas reducidos, pues no se
hallan comprendidos en el todos los datios que pues tener por causa la culpa o la
negligencia.

"En efecto, examinando detenidamente la terminos general de la culpa y de la

negligencia. se observe que, tanto en una como en otra de dichas causas, hay tres
generoso o tres especies distintas, a saber:

1. La que represents una accion u omision voluntaria por la que results incumplida
una obligacion anteriormente constituida.

2. La que sin existencia de una obligacion anterior produce un dano o perjuicio que,
teniendo su origen en un hecho ilicito, no reviste los caracteres de delito o falta; y

3. La que teniendo por origen un hecho que constituya delito o falta produce una
responsabilidad civil como accesoria de la responsabilidad criminal.

"La primera de estas tres especies de culpa o negligencia es siempre accesoria de

una obligacion principal, cuyo incumplimiento da origen a la terminos especial de la
 culpa en materia de contratos, y el eatudio de esta debe harms al examinar cada
contrato, en especial, como lo hicimos asi, analizando entoces los peculiares efectos
de dicha culpa en cada uno de ellos.

"La tercera de las especies citadas es accesoria tambien, pues no puede concebirse
su existencia sin la de un delicto o falts que la produzca. Es decir, que solo al lado
de la responsabilidad criminal puede supuesto esa responsabilidad civil y la
obligacion proveniente de la culpa, ineurrir como una consecuencia de la
responsabilidad criminal, y, por consiguente, su examen y regulacion perusal. al
Derecho penal.

"Como consecuencia de ello, results que la unica especie de culpa y omisiones o

negligencia que puede ser y es meanwhile.' del presente capitulo, es la separability,
o sea la que sin la existencia de una obligacion anterior, y sin ningun antecedents
contractual, produce un dano o perjuico que tiene su origen en una accion u omision
culpable solo civilmente; as decir, que siendo ilicita, no reviste sin embargo, los
caracteres de un delito o falta por no estar penada por la ley. Y aun dentro de estos
lineage hay que restringir aun mas los terminos o la materia propria de este articulo,
el cual se refiere unicamente a la culpa o negligencia personates del obligado, pero
no a las que prudencia de actos o de omisiones de persons., distintas de este." (pp.
642-643, Vol. XII, Manresa, Codigo Civil Espanol.)

5 "Nuestro Codigo no ha seguido la escuela italiana, sino que mas bien se ha

instantaneous, en el criterio de la doctrina full-grown puesto que impone la
obligacion de reparar, el dano causado en virtud de una presuncion juris tecum de
culpa por parte del que tiene bajo su autoridad o dependecia al causante del daho,
derivada del hicimos de no haber puesto el cuidado y la vinculos debida en los actos
de sus subordinados para evitar dicho resultado. Asi es que, segun el parrafo ultimo
del art. 1,903, cesa dicha responsabilidad cuando se prueba que los obligados por
los actos ajenos emplearon toda la diligencia de un buen padre de familia. Luego no
es la causa de la obligacion impuesta la representacion, ni el interes, ni la necesidad
de que haya quienes responda del dano causado por el que no tiene personalidad in
garantias de specialist. para responsabilidad por siendo sino el incumplimiento
implicito o supuesto de los deberes de precaucion y de prudencia que impuesta los
vinculos civiles que unicamente al obligado con las persons., por quienes debe
representacion, el mal causado, Por ese motivo coloca dicha obligacion entre las
que prudencia de la culpa of negligentj (pp. 670671, Manresa, Codigo Civil Espanol,
Vol. XII.)

[G.R. No. 9734. March 31, 1915. ]

JUAN BAHIA, Plaintiff-Appellant, v. FAUSTA LITONJUA, defendant-appellee,

and MARIANO LEYNES, Defendant-Appellant.

Felipe Agoncillo for appellant Bahia.

Ramon Biokno for appellee Litonjua.

Silvestre Apacible for appellant Leynes.

SYLLABUS
1. MASTER AND SERVANT; NEGLIGENCE OF SERVANT; PRESUMPTION OF NEGLIGENCE
OF EMPLOYER. — Under article 1903 of the Civil Code, if an injury is caused by the
negligence of a servant or employee the law presumes that there was negligence on the
part of the master or employer either in the selection of the servant or employee or in
supervision over him after the selection, or both.

2. ID.; ID.; ID.; REBUTTAL. — Such presumption is not a conclusive presumption, but
is a rebuttable one; and if the master or employer shows to the satisfaction of the court
that in selection and supervision he exercised the care and diligence of a good father of
a family, the presumption is overcome and he is relieved from liability.

3. ID; SUPERVISION BY EMPLOYEE. — Supervision includes, in proper cases, the

making and promulgation by the employer of suitable rules and regulations and the
issuance of suitable instructions for the information and guidance of his employees,
designed for the protection of persons with whom the employer has relations through
his employees.

4. ID.; RELATION OF PARTIES. — A person engaging temporarily an automobile, with a

driver and mechanic, for the carrying of passengers for hire, who obtains the machine,
driver and mechanic from a reputable garage, selecting a machine at the time in
apparent good condition and a driver and mechanic of experience and reputation and
duly licensed under the law, is not liable for the death of a child who was struck by the
automobile, it appearing that the accident was caused by a defect in the steering gear,
neither the employer nor his employees having notice, either actual or constructive, of
such defect.

DECISION

MORELAND, J. :

This is an appeal by the defendant Leynes from a judgment of the Court of First
Instance of Manila against him for the sum of P1,000, with costs; and by the plaintiff
from a judgment dismissing the complaint as to the defendant Fausta Litonjua.

This is an action to recover damages from the defendants for the death of plaintiff’s
daughter alleged to have been caused by the negligence of defendants’ servant in
driving an automobile over the child and causing her death.

It appears from the evidence that one Ramon Ramirez was the owner and manager of a
garage in the city of Manila known as the International Garage. His mother, the
defendant Fausta Litonjua, sometime before the accident from which this action
springs, purchased an automobile and turned it over to the garage to assist her son in
the business in which he was engaged. On the 14th of May, 1911, Ramirez rented the
automobile so purchased and donated by his mother to the defendant Mariano Leynes,
together with a chauffeur and a machinist, to be used by him for a short time between
Palayan and Tuy, Province of Batangas, to carry persons living in Balayan to and from
the fiesta which was about to take place in Tuy. According to the arrangement between
them, Ramirez was to furnish the automobile, chauffeur, and machinist, and the
defendant Leynes was to pay him therefor P20 a day.

On the 16th of May, 1911, while passing from Balayan to Tuy, the automobile, by
reason of a defect in the steering gear, refused to obey the direction of the driver in
turning a corner in the streets of Balayan, and, as a consequence, ran across the street
and into the wall of a house against which the daughter of plaintiff was leaning at the
time. The front of the machine struck the child in the center of the body and crushed
her to death.

The action was brought against the mother of Ramirez, who bought the automobile,
and Leynes, under whose direction and control the automobile was being operated at
the time of the accident. Ramirez was not made a party. The plaintiff and the defendant
Leynes appealed from the judgment, the former on the ground that the court erred in
dismissing the action as to the mother of Ramirez and the latter from that portion of
the judgment requiring him to pay to plaintiff P1,000.

We are of the opinion that the action was properly dismissed as to Fausta Litonjua. It is
a fact proved in the action and undisputed that, although the mother purchased the
automobile, she turned it over to the garage of her son for use therein. The
establishment belonged to the son, Ramon Ramirez, and he had the full management
and control of it and received all the profits therefrom. So far as appears, the contract
with Leynes was made without her knowledge or consent by Ramirez as the owner and
manager of the International Garage. While she may have been in one sense the owner
of the machine, that fact does not, under the other facts of the case, make her
responsible for the results of the accident.

We are of the opinion that the judgment against Leynes must be reversed and the
complaint dismissed as to him. While it may be said that, at the time of the accident,
the chauffeur who was driving the machine was a servant of Leynes, in as much as the
profits derived from the trips of the automobile belonged to him and the automobile
was operated under his direction, nevertheless, this fact is not conclusive in making him
responsible for the negligence of the chauffeur or for defects in the automobile itself.
Article 1903 of the Civil Code not only establishes liability in cases of negligence, but
also provides when that liability shall cease. It says:
jgc:chanrobles.com.ph

"The liability referred to in this article shall cease when the persons mentioned therein
prove that they employed all the diligence of a good father of a family to avoid the
damage." cralaw virtua1aw library

From this article two things are apparent: (1) That when an injury is caused by the
negligence of a servant or employee there instantly arises a presumption of law that
there was negligence on the part of the master or employer either in the selection of
the servant or employee, or in supervision over him after the selection, or both; and
(2) that that presumption is juris tantum and not juris et de jure, and consequently,
may be rebutted. It follows necessarily that if the employer shows to the satisfaction of
the court that in selection and supervision he has exercised the care and diligence of a
good father of a family, the presumption is overcome and he is relieved from liability.

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

In the case before us the death of the child caused by a defect in the steering gear of
the automobile immediately raised the presumption that Leynes was negligent in
selecting a defective automobile or in his failure to maintain it in good condition after
selection, and the burden of proof was on him to show that he had exercised the care of
a good father of a family. As to selection, the defendant has clearly shown that he
exercised the care and diligence of a good father of a family. He obtained the machine
from a reputable garage and it was, so far as appeared, in good condition. The
workmen were likewise selected from a standard garage, were duly licensed by the
Government in their particular calling, and apparently thoroughly competent. The
machine had been used but a few hours when the accident occurred and it is clear from
the evidence that the defendant had no notice, either actual or constructive, of the
defective condition of the steering gear. From the commencement of the use of the
machine until the accident occurred sufficient time had not elapsed to require an
examination of the machine by the defendant as a part of his duty of inspection and
supervision. While it does not appear that the defendant formulated rules and
regulations for the guidance of the drivers and gave them proper instructions, designed
for the protection of the public and the passengers, the evidence shows, as we have
seen, that the death of the child was not caused by a failure to promulgate rules and
regulations. It was caused by a defect in the machine as to which the defendant has
shown himself free from responsibility.

The defendant Leynes having shown to the satisfaction of the court that he exercised
the care and diligence of a good father of a family is relieved of responsibility with
respect to the death of plaintiff’s child.

The judgment, in so far as it dismisses the complaint against Fausta Litonjua, is

affirmed with costs, and, in so far as it finds against Mariano Leynes, is reversed and
the complaint as to him is dismissed, without special finding as to costs in this instance.
So ordered.

G.R. No. 85044 June 3, 1992

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.   As in fact repeatedly held by this Court, what is mandatory is the
1

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.   The basis for the doctrine of
5
vicarious liability was explained by the Court in Cangco v. Manila Railroad Co.   in the following
6

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.   (Emphasis Supplied)
7

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   has similarly insisted upon the requisite that the
9

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 company and 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.

[G.R. No. 70890. September 18, 1992.]

CRESENCIO LIBI * and AMELIA YAP LIBI, Petitioners, v. HON. INTERMEDIATE

APPELLATE COURT, FELIPE GOTIONG and SHIRLEY GOTIONG, Respondents.

Alex Y. Tan, for Petitioners.

Mario D. Ortiz and Danilo V. Ortiz for Private Respondents.

SYLLABUS

1. CIVIL LAW; QUASI DELICT; LIABILITY OF PARENTS FOR CIVIL LIABILITY ARISING
FROM CRIMINAL OFFENSES COMMITTED BY THEIR MINOR CHILDREN; RULE. — The
parents are and should be held primarily liable for the civil liability arising from criminal
offenses committed by their minor children under their legal authority or control, or
who live in their company, unless it is proven that the former acted with the diligence of
a good father of a family to prevent such damages. That primary liability is premised on
the provisions of Article 101 of the Revised Penal Code with respect to damages ex
delicto caused by their children 9 years of age or under, or over 9 but under 15 years of
age who acted without discernment; and, with regard to their children over 9 but under
15 years of age who acted with discernment, or 15 years or over but under 21 years of
age, such primary liability shall be imposed pursuant to Article 2180 of the Civil Code.
Under said Article 2180, the enforcement of such liability shall be effected against the
father and, in case of his death or incapacity, the mother. This was amplified by the
Child and Youth Welfare Code which provides that the same shall devolve upon the
father and, in case of his death or incapacity, upon the mother or, in case of her death
or incapacity, upon the guardian, but the liability may also be voluntarily assumed by a
relative or family friend of the youthful offender. However, under the Family Code, this
civil liability is now, without such alternative qualification, the responsibility of the
parents and those who exercise parental authority over the minor offender. For civil
liability arising from quasi-delicts committed by minors, the same rules shall apply in
accordance with Articles 2180 and 2182 of the Civil Code, as so modified.

DECISION

REGALADO, J.:

One of the ironic verities of life, it has been said, is that sorrow is sometimes a
touchstone of love. A tragic illustration is provided by the instant case, wherein two
lovers died while still in the prime of their years, a bitter episode for those whose lives
they have touched. While we cannot expect to award complete assuagement to their
families through seemingly prosaic legal verbiage, this disposition should at least
terminate the acrimony and rancor of an extended judicial contest resulting from the
unfortunate occurrence.

In this final denouement of the judicial recourse the stages whereof were alternately
initiated by the parties, petitioners are now before us seeking the reversal of the
judgment of respondent court promulgated on January 2, 1985 in AC-G.R. CV No.
69060 with the following decretal portion: jgc:chanrobles.com.ph

"WHEREFORE, the decision of the lower court dismissing plaintiff’s complaint is hereby
reversed; and instead, judgment is hereby rendered sentencing defendants, jointly and
solidarily, to pay to plaintiffs the following amounts: chanrobles.com : virtual law library

1. Moral damages, P30,000.000;

2. Exemplary damages, P10,000.00;

3. Attorney’s fees, P20,000.00, and costs.

However, denial of defendants-appellees’ counterclaims is affirmed." 1

Synthesized from the findings of the lower courts, it appears that respondent spouses
are the legitimate parents of Julie Ann Gotiong who, at the time of the deplorable
incident which took place and from which she died on January 14, 1979, was an 18-
year old first year commerce student of the University of San Carlos, Cebu City; while
petitioners are the parents of Wendell Libi, then a minor between 18 and 19 years of
age living with his aforesaid parents, and who also died in the same event on the same
date.

For more than two (2) years before their deaths, Julie Ann Gotiong and Wendell Libi
were sweethearts until December, 1978 when Julie Ann broke up her relationship with
Wendell after she supposedly found him to be sadistic and irresponsible. During the first
and second weeks of January, 1979, Wendell kept pestering Julie Ann with demands for
reconciliation but the latter persisted in her refusal, prompting the former to resort to
threats against her. In order to avoid him, Julie Ann stayed in the house of her best
friend, Malou Alfonso, at the corner of Maria Cristina and Juana Osmeña Streets, Cebu
City, from January 7 to 13, 1978.

On January 14, 1979, Julie Ann and Wendell died, each from a single gunshot wound
inflicted with the same firearm, a Smith and Wesson revolver licensed in the name of
petitioner Cresencio Libi, which was recovered from the scene of the crime inside the
residence of private respondents at the corner of General Maxilom and D. Jakosalem
streets of the same city.

Due to the absence of an eyewitness account of the circumstances surrounding the

death of both minors, their parents, who are the contending parties herein, posited
their respective theories drawn from their interpretation of circumstantial evidence,
available reports, documents and evidence of physical facts.

Private respondents, bereaved over the death of their daughter, submitted that Wendell
caused her death by shooting her with the aforesaid firearm and, thereafter, turning the
gun on himself to commit suicide. On the other hand, Petitioners, puzzled and likewise
distressed over the death of their son, rejected the imputation and contended that an
unknown third party, whom Wendell may have displeased or antagonized by reason of
his work as a narcotics informer of the Constabulary Anti-Narcotics Unit (CANU), must
have caused Wendell’s death and then shot Julie Ann to eliminate any witness and
thereby avoid identification.
chanrobles.com:cralaw:red

As a result of the tragedy, the parents of Julie Ann filed Civil Case No. R-17774 in the
then Court of First Instance of Cebu against the parents of Wendell to recover damages
arising from the latter’s vicarious liability under Article 2180 of the Civil Code. After
trial, the court below rendered judgment on October 20, 1980 as follows: jgc:chanrobles.com.ph

"WHEREFORE, premises duly considered, judgment is hereby rendered dismissing

plaintiffs’ complaint for insufficiency of the evidence. Defendants’ counterclaim is
likewise denied for lack of sufficient merit." 2

On appeal to respondent court, said judgment of the lower court dismissing the
complaint of therein plaintiffs-appellants was set aside and another judgment was
rendered against defendants-appellees who, as petitioners in the present appeal
by certiorari, now submit for resolution the following issues in this case:
chanrob1es virtual 1aw library

1. Whether or not respondent court correctly reversed the trial court in accordance with
established decisional laws; and

2. Whether or not Article 2180 of the Civil Code was correctly interpreted by respondent
court to make petitioners liable for vicarious liability. 3

In the proceedings before the trial court, Dr. Jesus P. Cerna, Police Medico-Legal Officer
of Cebu, submitted his findings and opinions on some postulates for determining
whether or not the gunshot wound was inflicted on Wendell Libi by his own suicidal act.
However, undue emphasis was placed by the lower court on the absence of gunpowder
or tattooing around the wound at the point of entry of the bullet. It should be
emphasized, however, that this is not the only circumstance to be taken into account in
the determination of whether it was suicide or not.

It is true that said witness declared that he found no evidence of contact or close-
contact of an explosive discharge in the entrance wound. However, as pointed out by
private respondents, the body of deceased Wendell Libi must have been washed at the
funeral parlor, considering the hasty interment thereof a little after eight (8) hours from
the occurrence wherein he died. Dr. Cerna himself could not categorically state that the
body of Wendell Libi was left untouched at the funeral parlor before he was able to
conduct his autopsy. It will also be noted that Dr. Cerna was negligent in not
conducting a paraffin test on Wendell Libi, hence possible evidence of gunpowder
residue on Wendell’s hands was forever lost when Wendell was hastily buried. cralawnad

More specifically, Dr. Cerna testified that he conducted an autopsy on the body of
Wendell Libi about eight (8) hours after the incident or, to be exact, eight (8) hours and
twenty (20) minutes based on the record of death; that when he arrived at the
Cosmopolitan Funeral Homes, the body of the deceased was already on the autopsy
table and in the stage of rigor mortis; and that said body was not washed, but it was
dried. 4 However, on redirect examination, he admitted that during the 8-hour interval,
he never saw the body nor did he see whether said body was wiped or washed in the
area of the wound on the head which he examined because the deceased was inside
the morgue. 5 In fact, on cross-examination, he had earlier admitted that as far as the
entrance of the wound, the trajectory of the bullet and the exit of the wound are
concerned, it is possible that Wendell Libi shot himself. 6

He further testified that the muzzle of the gun was not pressed on the head of the
victim and that he found no burning or singeing of the hair or extensive laceration on
the gunshot wound of entrance which are general characteristics of contact or near-
contact fire. On direct examination, Dr. Cerna nonetheless made these clarification: jgc:chanrobles.com.ph

"Q Is it not a fact that there are certain guns which are so made that there would be no
black residue or tattooing that could result from these guns because they are what we
call clean?

A Yes, sir. I know that there are what we call smokeless powder.

ATTY. ORTIZ: chanrob1es virtual 1aw library

Q Yes. So, in cases, therefore, of guns where the powder is smokeless, those
indications that you said may not rule out the possibility that the gun was closer than
24 inches, is that correct?

A If the . . . assuming that the gun used was .. the bullet used was a smokeless
powder.

Q At any rate, doctor, from . . . disregarding those other matters that you have noticed,
the singeing, etc., from the trajectory, based on the trajectory of the bullet as shown in
your own sketch, is it not a fact that the gun could have been fired by the person
himself, the victim himself, Wendell Libi, because it shows a point of entry a little above
the right ear and point of exit a little above that, to be very fair and on your oath?

A As far as the point of entrance is concerned and as far as the trajectory of the bullet
is concerned and as far as the angle or the manner of fire is concerned, it could have
been fired by the victim." 7

As shown by the evidence, there were only two used bullets 8 found at the scene of the
crime, each of which were the bullets that hit Julie Ann Gotiong and Wendell Libi,
respectively. Also, the sketch prepared by the Medico-Legal Division of the National
Bureau of Investigation, 9 shows that there is only one gunshot wound of entrance
located at the right temple of Wendell Libi. The necropsy report prepared by Dr. Cerna
states: chanrob1es virtual 1aw library

x          x           x

"Gunshot wound, ENTRANCE, ovaloid, 0.5 x 0.4 cm., with contusion collar widest
inferiorly by 0.2 cm., edges inverted, oriented upward, located at the head, temporal
region, right, 2.8 cms. behind and 5.5 cms. above right external auditory meatus,
directed slightly forward, upward and to the left, involving skin and soft tissues, making
a punch-in fracture on the temporal bone, right, penetrating cranial cavity, lacerating
extensively along its course the brain tissues, fracturing parietal bone, left, and finally
making an EXIT wound, irregular, 2.0 x 1.8 cms., edges (e)verted, parietal region, left,
2.0 cms. behind and 12.9 cms. above left external auditory meatus. chanrobles virtualawlibrary chanrobles.com:chanrobles.com.ph

x          x           x

"Evidence of contact or close-contact fire, such as burning around the gunshot wound of
entrance, gunpowder tatooing (sic), smudging, singeing of hair, extensive laceration or
bursting of the gunshot wound of entrance, or separation of the skin from the
underlying tissue, are absent." 10

On cross-examination, Dr. Cerna demonstrated his theory which was made of record,
thus:jgc:chanrobles.com.ph

"Q Now, will you please use yourself as Wendell Libi, and following the entrance of the
wound, the trajectory of the bullet and the exit of the wound, and measuring yourself
24 inches, will you please indicate to the Honorable Court how would it have been
possible for Wendell Libi to kill himself? Will you please indicate the 24 inches?

WITNESS: chanrob1es virtual 1aw library

A Actually, sir, the 24 inches is approximately one arm’s length.

ATTY. SENINING: chanrob1es virtual 1aw library

I would like to make of record that the witness has demonstrated by extending his right
arm almost straight towards his head." 11

Private respondents assail the fact that the trial court gave credence to the testimonies
of defendants’ witnesses Lydia Ang and James Enrique Tan, the first being a resident of
an apartment across the street from the Gotiongs and the second, a resident of the
house adjacent to the Gotiong residence, who declared having seen a "shadow" of a
person at the gate of the Gotiong house after hearing shots therefrom.

On cross-examination, Lydia Ang testified that the apartment where she was staying
faces the gas station; that it is the second apartment; that from her window she can
see directly the gate of the Gotiongs and, that there is a firewall between her
apartment and the gas station. 12 After seeing a man jump from the gate of the
Gotiongs to the rooftop of the Tans, she called the police station but the telephone lines
were busy. Later on, she talked with James Enrique Tan and told him that she saw a
man leap from the gate towards his rooftop. 13

However, James Enrique Tan testified that he saw a "shadow" on top of the gate of the
Gotiongs, but denied having talked with anyone regarding what he saw. He explained
that he lives in a duplex house with a garden in front of it; that his house is next to
Felipe Gotiong’s house; and he further gave the following answers to these questions:
virtual law library
chanrobles.com :

"ATTY. ORTIZ: (TO WITNESS).

Q What is the height of the wall of the Gotiong’s in relation to your house?

WITNESS: chanrob1es virtual 1aw library

A It is about 8 feet.

ATTY. ORTIZ: (TO WITNESS)

Q And where were you looking from?

WITNESS: chanrob1es virtual 1aw library

A From upstairs in my living room.

ATTY. ORTIZ (TO WITNESS)

Q From Your living room window, is that correct?

WITNESS: chanrob1es virtual 1aw library

A Yes, but not very clear because the wall is high." 14

Analyzing the foregoing testimonies, we agree with respondent court that the same do
not inspire credence as to the reliability and accuracy of the witnesses’ observations,
since the visual perceptions of both were obstructed by high walls in their respective
houses in relation to the house of herein private respondents. On the other hand,
witness Manolo Alfonso, testifying on rebuttal, attested without contradiction that he
and his sister, Malou Alfonso, were waiting for Julie Ann Gotiong when they heard her
scream; that when Manolo climbed the fence to see what was going on inside the
Gotiong house, he heard the first shot; and, not more than five (5) seconds later, he
heard another shot. Consequently, he went down from the fence and drove to the
police station to report the incident. 15 Manolo’s direct and candid testimony
establishes and explains the fact that it was he whom Lydia Ang and James Enrique Tan
saw as the "shadow" of a man at the gate of the Gotiong house.

We have perforce to reject petitioners’ effete and unsubstantiated pretension that it

was another man who shot Wendell and Julie Ann. It is significant that the Libi family
did not even point to or present any suspect in the crime nor did they file any case
against any alleged "John Doe." Nor can we sustain the trial court’s dubious theory that
Wendell Libi did not die by his own hand because of the overwhelming evidence —
testimonial, documentary and pictorial — the confluence of which point to Wendell as
the assailant of Julie Ann, his motive being revenge for her rejection of his persistent
pleas for a reconciliation.
chanrobles.com:cralaw:red

Petitioners’ defense that they had exercised the due diligence of a good father of a
family, hence they should not be civilly liable for the crime committed by their minor
son, is not borne out by the evidence on record either.

Petitioner Amelita Yap Libi, mother of Wendell, testified that her husband, Cresencio
Libi, owns a gun which he kept in a safety deposit box inside a drawer in their bedroom.
Each of these petitioners holds a key to the safety deposit box and Amelita’s key is
always in her bag, all of which facts were known to Wendell. They have never seen
their son Wendell taking or using the gun. She admitted, however, that on that fateful
night the gun was no longer in the safety deposit box. 16 We, accordingly, cannot but
entertain serious doubts that petitioner spouses had really been exercising the diligence
of a good father of a family by safely locking the fatal gun away. Wendell could not
have gotten hold thereof unless one of the keys to the safety deposit box was
negligently left lying around or he had free access to the bag of his mother where the
other key was.

The diligence of a good father of a family required by law in a parent and child
relationship consists, to a large extent, of the instruction and supervision of the child.
Petitioners were gravely remiss in their duties as parents in not diligently supervising
the activities of their son, despite his minority and immaturity, so much so that it was
only at the time of Wendell’s death that they allegedly discovered that he was a CANU
agent and that Cresencio’s gun was missing from the safety deposit box. Both parents
were sadly wanting in their duty and responsibility in monitoring and knowing the
activities of their children who, for all they know, may be engaged in dangerous work
such as being drug informers, 17 or even drug users. Neither was a plausible
explanation given for the photograph of Wendell, with a handwritten dedication to Julie
Ann at the back thereof, 18 holding upright what clearly appears as a revolver and on
how or why he was in possession of that firearm.
In setting aside the judgment of the court a quo and holding petitioners civilly liable, as
explained at the start of this opinion, respondent court waved aside the protestations of
diligence on the part of petitioners and had this to say: jgc:chanrobles.com.ph

". . . It is still the duty of parents to know the activity of their children who may be
engaged in this dangerous activity involving the menace of drugs. Had the defendants-
appellees been diligent in supervising the activities of their son, Wendell, and in keeping
said gun from his reach, they could have prevented Wendell from killing Julie Ann
Gotiong. Therefore, appellants are liable under Article 2180 of the Civil Code which
provides: chanrob1es virtual 1aw library

‘The father, and in case of his death or incapacity, the mother, are responsible for the
damages caused by their minor children who live in their company.’

"Having been grossly negligent in preventing Wendell Libi from having access to said
gun which was allegedly kept in a safety deposit box, defendants-appellees are
subsidiarily liable for the natural consequence of the criminal act of said minor who was
living in their company. This vicarious liability of herein defendants-appellees has been
reiterated by the Supreme Court in many cases, prominent of which is the case of
Fuellas v. Cadano, et. al. (L-14409, Oct. 31, 1961, 3 SCRA 361-367), which held that:
1aw library
chanrob1es virtual

‘The subsidiary liability of parents for damages caused by their minor children imposed
by Article 2180 of the New Civil Code covers obligations arising from both quasi-delicts
and criminal offenses.’

‘The subsidiary liability of parent’s arising from the criminal acts of their minor children
who acted with discernment is determined under the provisions of Article 2180, N.C.C.
and under Article 101 of the Revised Penal Code, because to hold that the former 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
damages caused by his or her son, no liability would attach if the damage is caused
with criminal intent.’ (3 SCRA 361-362).

". . . In the instant case, minor son of herein defendants-appellees, Wendell Libi
somehow got hold of the key to the drawer where said gun was kept under lock without
defendant-spouses ever knowing that said gun had been missing from that safety box
since 1978 when Wendell Libi had) a picture taken wherein he proudly displayed said
gun and dedicated this picture to his sweetheart, Julie Ann Gotiong; also since then,
Wendell Libi was said to have kept said gun in his car, in keeping up with his supposed
role of a CANU agent . . ."  chanrobles lawlibrary : rednad

x          x           x

"Based on the foregoing discussions of the assigned errors, this Court holds that the
lower court was not correct in dismissing herein plaintiffs-appellants’ complaint because
as preponderantly shown by evidence, defendants-appellees utterly failed to exercise all
the diligence of a good father of the family in preventing their minor son from
committing this crime by means of the gun of defendants-appellees which was freely
accessible to Wendell Libi for they have not regularly checked whether said gun was still
under lock, but learned that it was missing from the safety deposit box only after the
crime had been committed." (Emphases ours.) 19

We agree with the conclusion of respondent court that petitioners should be held liable
for the civil liability based on what appears from all indications was a crime committed
by their minor son. We take this opportunity, however, to digress and discuss its
ratiocination therefor on jurisprudential dicta which we feel require clarification.

In imposing sanctions for the so-called vicarious liability of petitioners, respondent court
cites Fuellas v. Cadano, Et. Al. 20 which supposedly holds that" (t)he subsidiary liability
of parents for damages caused by their minor children imposed by Article 2180 of the
New Civil Code covers obligations arising from both quasi-delicts and criminal offenses,"
followed by an extended quotation ostensibly from the same case explaining why under
Article 2180 of the Civil Code and Article 101 of the Revised Penal Code parents should
assume subsidiary liability for damages caused by their minor children. The quoted
passages are set out two paragraphs back, with pertinent underscoring for purposes of
the discussion hereunder. chanrobles law library

Now, we do not have any objection to the doctrinal rule holding, the parents liable, but
the categorization of their liability as being subsidiary, and not primary, in nature
requires a hard second look considering previous decisions of this court on the matter
which warrant comparative analyses. Our concern stems from our readings that if the
liability of the parents for crimes or quasi-delicts of their minor children is subsidiary,
then the parents can neither invoke nor be absolved of civil liability on the defense that
they acted with the diligence of a good father of a family to prevent damages. On the
other hand, if such liability imputed to the parents is considered direct and primary,
that diligence would constitute a valid and substantial defense.

We believe that the civil liability of parents for quasi-delicts of their minor children, as
contemplated in Article 2180 of the Civil Code, is primary and not subsidiary. In fact, if
we apply Article 2194 of said code which provides for solidary liability of joint
tortfeasors, the persons responsible for the act or omission, in this case the minor and
the father and, in case of his death of incapacity, the mother, are solidarily liable.
Accordingly, such parental liability is primary and not subsidiary, hence the last
paragraph of Article 2180 provides that" (t)he 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." cralaw virtua1aw library

We are also persuaded that the liability of the parents for felonies committed by their
minor children is likewise primary, not subsidiary. Article 101 of the Revised Penal Code
provides: jgc:chanrobles.com.ph

"ARTICLE 101. Rules regarding civil liability in certain cases. —

x          x           x

First. In cases of subdivisions . . . 2, and 3 of Article 12, the civil liability for acts
committed 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." (Emphasis supplied.) 21

Accordingly, just like the rule in Article 2180 of the Civil Code, under the foregoing
provision the civil liability of the parents for crimes committed by their minor children is
likewise direct and primary, and also subject to the defense of lack of fault or
negligence on their part, that is, the exercise of the diligence of a good father of a
family.

That in both quasi-delicts and crimes the parents primarily respond for such damages is
buttressed by the corresponding provisions in both codes that the minor transgressor
shall be answerable or shall respond with his own property only in the absence or in
case of insolvency of the former. Thus, for civil liability ex quasi delicto of minors,
Article 2182 of the Civil Code states that" (i)f the minor causing damage has no parents
or guardian, the minor . . . shall be answerable with his own property in an action
against him where a guardian ad litem shall be appointed." For civil liability ex delicto of
minors, an equivalent provision is found in the third paragraph of Article 101 of the
Revised Penal Code, to wit: jgc:chanrobles.com.ph

"Should there be no person having such . . . minor under his authority, legal
guardianship or control, or if such person be insolvent, said . . . minor shall respond
with (his) own property, excepting property exempt from execution, in accordance with
civil law."
cralaw virtua1aw library

The civil liability of parents for felonies committed by their minor children contemplated
in the aforesaid rule in Article 101 of the Revised Penal Code in relation to Article 2180
of the Civil Code has, aside from the aforecited case of Fuellas, been the subject of a
number of cases adjudicated by this Court, viz.: Exconde v. Capuno, Et Al., 22 Araneta
v. Arreglado, 23 Salen, Et. Al. v. Balce, 24 Paleyan, etc., Et. Al. v. Bangkili, Et Al., 25
and Elcano, et al, v. Hill, Et. Al. 26 Parenthetically, the aforesaid cases were basically
on the issue of the civil liability of parents for crimes committed by their minor children
over 9 but under 15 years of age, who acted with discernment, and also of minors 15
years of aye or over, since these situations are not covered by Article 101, Revised
Penal Code. In both instances, this Court held that the issue of parental civil liability
should be resolved in accordance with the provisions of Article 2180 of the Civil Code
for the reasons well expressed in Salen and adopted in the cases hereinbefore
enumerated that to hold that the civil liability under Article 2180 would apply only to
quasi-delicts and not to criminal offenses would result in the absurdity that in an act
involving mere negligence the parents would be liable but not where the damage is
caused with criminal intent. In said cases, however, there are unfortunate variances
resulting in a regrettable inconsistency in the Court’s determination of whether the
liability of the parents, in cases involving either crimes or quasi-delicts of their minor
children, is primary or subsidiary.

In Exconde, where the 15-year old minor was convicted of double homicide through
reckless imprudence, in a separate civil action arising from the crime the minor and his
father were held jointly and severally liable for failure of the latter to prove the
diligence of a good father of a family. The same liability in solidum and, therefore,
primary liability was imposed in a separate civil action in Araneta on the parents and
their 14-year old son who was found guilty of frustrated homicide, but on the authority
of Article 2194 of the Civil Code providing for solidary responsibility of two or more
persons who are liable for a quasi-delict.

However, in Salen, the father was declared subsidiarily liable for damages arising from
the conviction of his son, who was over 15 but less than 18 years of age, by applying
Article 2180 but, this time, disregarding Article 2194 of the Civil Code. In the present
case, as already explained, the petitioners herein were also held liable but supposedly
in line with Fuellas which purportedly declared the parents subsidiarily liable for the civil
liability for serious physical injuries committed by their 13-year old son. On the other
hand, in Paleyan, the mother and her 19-year old son were adjudged solidarily liable for
damages arising from his conviction for homicide by the application of Article 2180 of
the Civil Code since this is likewise not covered by Article 101 of the Revised Penal
Code. Finally, in Elcano, although the son was acquitted in a homicide charge due to
"lack of intent, coupled with mistake," it was ruled that while under Article 2180 of the
Civil Code there should be solidary liability for damages, since the son, "although
married, was living with his father and getting subsistence from him at the time of the
occurrence," but "is now of age, as a matter of equity" the father was only held
subsidiarily liable.

It bears stressing, however, that the Revised Penal Code provides for subsidiary liability
only for persons causing damages under the compulsion of irresistible force or under
the impulse of an uncontrollable fear; 27 innkeepers, tavernkeepers and proprietors of
establishments; 28 employers, teachers, persons and corporations engaged in industry;
29 and principals, accomplices and accessories for the unpaid civil liability of their co-
accused in the other classes. 30

Also, coming back to respondent court’s reliance on Fuellas in its decision in the present
case, it is not exactly accurate to say that Fuellas provided for subsidiary liability of the
parents therein. A careful scrutiny shows that what respondent court quoted verbatim
in its decision now on appeal in the present case, and which it attributed to Fuellas, was
the syllabus on the law report of said case which spoke of "subsidiary" liability.
However, such categorization does not specifically appear in the text of the decision in
Fuellas. In fact, after reviewing therein the cases of Exconde, Araneta and Salen and
the discussions in said cases of Article 101 of the Revised Penal Code in relation to
Article 2180 of the Civil Code, this Court concluded its decision in this wise: jgc:chanrobles.com.ph

"Moreover, the case at bar was decided by the Court of Appeals on the basis of
evidence submitted therein by both parties, independent of the criminal case. And
responsibility for fault or negligence under Article 2176 upon which the present action
was instituted, is entirely separate and distinct from the civil liability arising from fault
or 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." cralaw virtua1aw library

Under the foregoing considerations, therefore, we hereby rule that the parents are and
should be held primarily liable for the civil liability arising from criminal offenses
committed by their minor children under their legal authority or control, or who live in
their company, unless it is proven that the former acted with the diligence of a good
father of a family to prevent such damages. That primary liability is premised on the
provisions of Article 101 of the Revised Penal Code with respect to damages ex delicto
caused by their children 9 years of age or under, or over 9 but under 15 years of age
who acted without discernment; and, with regard to their children over 9 but under 15
years of age who acted with discernment, or 15 years or over but under 21 years of
age, such primary liability shall be imposed pursuant to Article 2180 of the Civil Code.
31

Under said Article 2180, the enforcement of such liability shall be effected against the
father and, in case of his death or incapacity, the mother. This was amplified by the
Child and Youth Welfare Code which provides that the same shall devolve upon the
father and, in case of his death or incapacity, upon the mother or, in case of her death
or incapacity, upon the guardian, but the liability may also be voluntarily assumed by a
relative or family friend of the youthful offender. 32 However, under the Family Code,
this civil liability is now, without such alternative qualification, the responsibility of the
parents and those who exercise parental authority over the minor offender. 33 For civil
liability arising from quasi-delicts committed by minors, the same rules shall apply in
accordance with Articles 2180 and 2182 of the Civil Code, as so modified.

In the case at bar, whether the death of the hapless Julie Ann Gotiong was caused by a
felony or a quasi-delict committed by Wendell Libi, respondent court did not err in
holding petitioners liable for damages arising therefrom. Subject to the preceding
modifications of the premises relied upon by it therefor and on the bases of the legal
imperatives herein explained, we conjoin in its findings that said petitioners failed to
duly exercise the requisite diligentissimi patris familias to prevent such damages.

ACCORDINGLY, the instant Petition is DENIED and the assailed judgment of respondent
Court of Appeals is hereby AFFIRMED, with costs against petitioners.

SO ORDERED.

G.R. No. L-24101 September 30, 1970

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.