Dulay (suing in her own behalf and in behalf of her minor children) v. CA, Hon.

Regino (RTC Judge), Safeguard Security, and Superguard Security (1995) Bidin, J. There was an altercation between security guard Benigno Torzuela and Atty. Napoleon Dulay in a carnival Big Bang sa Alabang. Security guard Torzuela shot and killed Atty. Dulay. Now, widow of dead Atty. filed an action for damages against the security guard, Safeguard security and/or Superguard security.

----The COMPLAINT: Safeguard and Superguard are corporations duly organized under Phil Law. They are impleaded as alternative defendants because: o Safeguard is the employer of the security guard o Superguard impliedly acknowledged responsibility for the acts of security guard by extending its sympathies to the family. That what happened was: Around 8am, the security guard was on duty at the carnival and he shot the Atty with a .38 caliber revolver. o The revolver belonged to Safeguard and/or Superguard. o They issued the gun to the security guard. The Atty. died. The security guards reckless discharge of the firearm issued to him was the proximate cause of the injury, while the negligence of Safeguard and/or Superguard consists in its having failed to exercise the diligence of a good father of a family in the supervision and control of its employee to avoid the injury. ----ANSWER of Superguard: Superguard files a Motion to Dismiss: the complaint does not state a valid cause of action. Superguard claims that the security guards act of shooting the atty was beyond the scope of his duties. Since the alleged act of shooting was committed with deliberate intent (dolo), the civil liability is governed by RPC 100 RPC 100. Civil liability of a person guilty of a felony. Every person criminally liable for a felony is also civilly liable. Superguard also says: o A complaint for damages based on negligence under NCC 2176, such as the one filed by the family, cannot lie, since the civil liability under NCC 2176 applies only to quasi-offenses under RPC 365. o Also, Safeguard and Superguard argued that the familys filing of the complaint is premature because the conviction of the security guard in a criminal case is a condition sine qua non for the employer's subsidiary liability ANSWER of Safeguard: Safeguard files a motion praying to be excluded as defendant because the security guard was not its employee. The familys ANSWER to Safeguard and Superguard: The family opposed both motions because their cause of action is based on Safeguards and Superguards liability under NCC 2180 which provides: 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. Employers shall be liable for the damages caused by their employees and household helpers acting within the scope of their assigned tasks, even though the former are not engaged in any business or an industry. The family says that a suit against alternative defendants is allowed under Rule 3, Section 13 of the Rules of Court. And so, the inclusion of Safeguard and Superguard as alternative defendants in the complaint is justified by the following: o The Initial Investigation Report prepared by a certain Patrolman Tubon showing that the security guard is an employee of Safeguard; and o Through overt acts, Superguard extended its sympathies to the family

MEANWHILE, an information was filed with RTC-Makati charging the security guard with homicide. RTC judge granted Superguards Motion to Dismiss and Safeguards Motion for exclusion as defendant. Judge says the complaint did not state facts sufficient to constitute a quasi-delict since the complaint does not mention any negligence on the part of the security guard in shooting the atty. or that the shooting was done in the performance of his duties. Also, the judge says the complaint was one for damages founded on crimes punishable under RPC 100 and 103 as distinguished from those arising from quasi-delict. CA affirmed RTC decision. MR denied. The family argues:

That quasi-delicts are not limited to acts of negligence but also cover acts that are intentional and voluntary, citing Andamo v. IAC. o And so, the security guards act of shooting the atty, constitutes a quasi-delict actionable under NCC 2176. They also argue that: o Under NCC 2180, Safeguard and Superguard are primarily liable for their negligence either in the selection or supervision of their employees. o This liability is independent of the employee's own liability for fault or negligence and is distinct from the subsidiary civil liability under RPC 103 o The civil action against the employer may proceed independently of the criminal action pursuant to Rule 111 Section 3 of the Rules of Court. o They say that the question of whether the security guard is an employee of Superguard or Safeguard should be resolved after trial. The family also argues that the security guards act of shooting Dulay is also actionable under NCC 33 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. The family also cites the RoC: Rule 111 Sec. 3. When civil action may proceed independently. In the cases provided for in NCC 32, 33, 34 and 2176, the independent civil action which has been reserved may be brought by the offended party, shall proceed independently of the criminal action, and shall require only a preponderance of evidence. Lastly, o Physical injuries" under NCC 33 has been held to include consummated, frustrated and attempted homicide. o So, the family contends that the security guard's prior conviction is unnecessary since the civil action can proceed independently of the criminal action. o The civil action contemplated in NCC 2177 is not applicable to acts committed with deliberate intent, but only applies to quasi-offenses under RPC 365 o The security guards act of shooting the atty aside from being personal, was done with deliberate intent and could not have been part of his duties as security guard. o Since NCC 2180 covers only: acts done within the scope of the employee's assigned tasks. Safeguard and Superguard cannot be held liable for damages.

Issue: Is there a valid cause of action? Held: Yes. Ratio:

The security guard is being prosecuted for homicide. Rule 111 of the Rules on Criminal Procedure provides: Sec. 1. Institution of criminal and civil actions. When a criminal action is instituted, the civil action for the recovery of civil liability is impliedly instituted with the criminal action, unless the offended party waives the civil action , reserves his right to institute it separately or institutes the civil action prior to the criminal action. Such civil action includes recovery of indemnity under the Revised Penal Code, and damages under Articles 32, 33, 34, and 2176 of the Civil Code of the Philippines arising from the same act or omission of the accused. Well-settled rule: filing of an independent civil action before the prosecution in the criminal action presents evidence is even far better than a compliance with the requirement of express reservation This is what the family opted to do. BUT, Safeguard and Superguard opposed the civil action because it is founded on a delict and not on a quasi-delict as the shooting was not attended by negligence. o What is in dispute therefore is the nature of the familys cause of action. The nature of a cause of action is determined by the facts alleged in the complaint as constituting the cause of action . An examination of the complaint shows that the family is invoking their right to recover damages for Safeguards and Superguards vicarious responsibility for the injury caused by the security guards shooting. Contrary to the theory of Safe and Superguard, there is no justification for limiting the scope of NCC 2176 to acts or omissions resulting from negligence. The doctrine is that NCC 2176 covers not only acts committed with negligence, but also acts which are voluntary and intentional.

Re: NCC 33 Safe and Super argue that NCC 33 applies only to injuries intentionally committed (ruling in Marcia v. CA) and that the actions for damages allowed there are ex-delicto However, the term "physical injuries" in NCC 33 has already been construed to include bodily injuries causing death(Capuno v. Pepsi) It is not the crime of physical injuries defined in the RPC. It includes not only physical injuries but also consummated, frustrated, and attempted homicide (Madeja v. Caro). Although in the Marcia case, it was held that no independent civil action may be filed under NCC 33 where the crime is the result of criminal negligence, it must be noted that the security guard is charged with homicide, not with reckless imprudence, whereas the defendant in Marcia was charged with reckless imprudence. Therefore, in this case, a civil action based on NCC 33 lies.

Re: Subsidiary liability? Safe and Super say that their liability is subsidiary under the RPC and that they are not liable for the security guards act which is beyond the scope of his duties as a security guard. SC says: Having established that this action is not ex-delicto, the family may proceed directly against the security guard and Safe & Super. Under NCC 2180, when an injury is caused by the negligence of the 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 selection or both (Layugan v. IAC) The liability of the employer under NCC 2180 is direct and immediate; it is not conditioned upon prior recourse against the negligent employee and a prior showing of the insolvency of such employee (Kapalaran Bus Lines v. Coronado). Therefore, it is the burden of Safe and Super to prove that they exercised the diligence of a good father of a family in the selection and supervision of their employee. Re: Error of the TC Since NCC 2176 covers not only acts of negligence but also acts which are intentional and voluntary, it was an error of the TC to dismiss the familys complaint simply because it failed to make allegations of negligence attributable to Safe and Super. Re: W/N the complaint stated a cause of action General rule: the allegations in a complaint are sufficient to constitute a cause of action if, admitting the facts alleged, the court can render a valid judgment upon the same in accordance with the prayer. A cause of action exist if the following elements are present, namely: (1) a right in favor of the plaintiff by whatever means and under whatever law it arises or is created; (2) an obligation on the part of the named defendant to respect or not to violate such right; and (3) an act or omission on the part of such defendant violative of the right of the plaintiff or constituting a breach of the obligation of the defendant to the plaintiff for which the latter may maintain an action for recovery of damages SC find the complaint to sufficiently allege an actionable breach of the security guard and Safe & Super. It is enough that the complaint alleged that the security guard shot the atty. resulting in death, that the shooting occurred while security guard was on duty; and that either Safe and/or Super was the employer and responsible for his acts. This does not however, establish that they are liable. Whether or not the shooting was actually reckless and attended by negligence and whether it was done within the scope of the sec guards duties; whether Safe and Super failed to exercise the diligence of a good father of a family; and whether the defendants are actually liable, are questions which will be resolved after trial. Petition granted.