ARTICLE 21 BREACH OF PROMISE TO MARRY: WHEN ACTIONABLE G.R. No.

L-14628 September 30, 1960

FRANCISCO HERMOSISIMA, petitioner, vs. THE HON. COURT OF APPEALS, ET AL., respondents. Regino Hermosisima for petitioner. F.P. Gabriel, Jr. for respondents. CONCEPCION, J.: An appeal by certiorari, taken by petitioner Francisco Hermosisima, from a decision of Court of Appeals modifying that of the Court of First Instance of Cebu. On October 4, 1954, Soledad Cagigas, hereinafter referred to as complaint, filed with said of her child, Chris Hermosisima, as natural child and moral damages for alleged breach of promise. Petitioner admitted the paternity of child and expressed willingness to support the latter, but denied having ever promised to marry the complainant. Upon her motion, said court ordered petitioner, on October 27, 1954, to pay, by way of alimony pendente lite, P50.00 a month, which was, on February 16, 1955, reduced to P30.00 a month. In due course, later on, said court rendered a decision the dispositive part of which reads: WHEREFORE, judgment is hereby rendered, declaring the child, Chris Hermosisima, as the natural daughter of defendant, and confirming the order pendente lite, ordering defendant to pay to the said child, through plaintiff, the sum of thirty pesos (P30.00), payable on or before the fifth day of every month sentencing defendant to pay to plaintiff the sum of FOUR THOUSAND FIVE HUNDRED PESOS (P4,500.00) for actual and compensatory damages; the sum of FIVE THOUSAND PESOS (P5,000.00) as moral damages; and the further sum of FIVE HUNDRED PESOS (P500.00) as attorney's fees for plaintiff, with costs against defendant. On appeal taken by petitioner, the Court of Appeals affirmed this decision, except as to the actual and compensatory damages and the moral damages, which were increased to P5,614.25 and P7,000.00, respectively. The main issue before us is whether moral damages are recoverable, under our laws, for breach of promise to marry. The pertinent facts are: Complainant Soledad Cagigas, was born in July 1917. Since 1950, Soledad then a teacher in the Sibonga Provincial High School in Cebu, and petitioner, who was almost ten (10) years younger than she, used to go around together and were regarded as engaged, although he had made no promise of marriage prior thereto. In 1951, she gave up teaching and became a life insurance underwriter in the City of Cebu, where intimacy developed among her and the petitioner, since one evening in 1953, when after coming from the movies, they had sexual intercourse in his cabin on board M/V "Escao," to which he was then attached as apprentice pilot. In February 1954, Soledad advised petitioner that she was in the family way, whereupon he promised to marry her. Their child, Chris Hermosisima, was born on June 17, 1954, in a private maternity and clinic. However, subsequently, or on July 24, 1954, defendant married one Romanita Perez. Hence, the present action, which was commenced on or about October 4, 1954. Referring now to the issue above referred to, it will be noted that the Civil Code of Spain permitted the recovery of damages for breach to marry. Article 43 and 44 of said Code provides:

ART. 43. A mutual promise of marriage shall not give rise to an obligation to contract marriage. No court shall entertain any complaint by which the enforcement of such promise is sought. ART. 44. If the promise has been in a public or private instrument by an adult, or by a minor with the concurrence of the person whose consent is necessary for the celebration of the marriage, or if the banns have been published, the one who without just cause refuses to marry shall be obliged to reimburse the other for the expenses which he or she may have incurred by reason of the promised marriage. The action for reimbursement of expenses to which the foregoing article refers must be brought within one year, computed from the day of the refusal to celebrate the marriage. Inasmuch as these articles were never in force in the Philippines, this Court ruled in De Jesus vs. Syquia (58 Phil., 866), that "the action for breach of promises to marry has no standing in the civil law, apart from the right to recover money or property advanced . . . upon the faith of such promise". The Code Commission charged with the drafting of the Proposed Civil Code of the Philippines deem it best, however, to change the law thereon. We quote from the report of the Code Commission on said Proposed Civil Code: Articles 43 and 44 the Civil Code of 1889 refer to the promise of marriage. But these articles are not enforced in the Philippines. The subject is regulated in the Proposed Civil Code not only as to the aspect treated of in said articles but also in other particulars. It is advisable to furnish legislative solutions to some questions that might arise relative to betrothal. Among the provisions proposed are: That authorizing the adjudication of moral damages, in case of breach of promise of marriage, and that creating liability for causing a marriage engagement to be broken.1awphl.nt Accordingly, the following provisions were inserted in said Proposed Civil Code, under Chapter I, Title III, Book I thereof: Art. 56. A mutual promise to marry may be made expressly or impliedly. Art. 57. An engagement to be married must be agreed directly by the future spouses. Art. 58. A contract for a future marriage cannot, without the consent of the parent or guardian, be entered into by a male between the ages of sixteen and twenty years or by a female between the ages of sixteen and eighteen years. Without such consent of the parents or guardian, the engagement to marry cannot be the basis of a civil action for damages in case of breach of the promise. Art. 59. A promise to marry when made by a female under the age of fourteen years is not civilly actionable, even though approved by the parent or guardian. Art. 60. In cases referred to in the proceeding articles, the criminal and civil responsibility of a male for seduction shall not be affected. Art. 61. No action for specific performance of a mutual promise to marry may be brought. Art. 62. An action for breach of promise to marry may be brought by the aggrieved party even though a minor without the assistance of his parent or guardian. Should the minor refuse to bring suit, the parent or guardian may institute the action. Art. 63. Damages for breach of promise to marry shall include not only material and pecuniary losses but also compensation for mental and moral suffering.

Art. 64. Any person, other than a rival, the parents, guardians and grandparents, of the affianced parties, who cause a marriage engagement to be broken shall be liable for damages, both material and moral, to the engaged person who is rejected. Art. 65. In case of breach of promise to marry, the party breaking the engagement shall be obliged to return what he or she has received from the other as gift on account of the promise of the marriage. These article were, however, eliminated in Congress. The reason therefor are set forth in the report of the corresponding Senate Committee, from which we quote: The elimination of this Chapter is proposed. That breach of promise to marry is not actionable has been definitely decide in the case of De Jesus vs. Syquia, 58 Phil., 866. The history of breach of promise suit in the United States and in England has shown that no other action lends itself more readily to abuse by designing women and unscrupulous men. It is this experience which has led to the abolition of the rights of action in the so-called Balm suit in many of the American States. See statutes of: Florida 1945 pp. 1342 1344 Maryland 1945 pp. 1759 1762 Nevada 1943 p. 75 Maine 1941 pp. 140 141 New Hampshire1941 p. 223 California 1939 p. 1245 Massachusetts 1938 p. 326 Indiana 1936 p. 1009 Michigan New York Pennsylvania 1935 p. 201 1935 p. 450

The Commission perhaps though that it has followed the more progression trend in legislation when it provided for breach of promise to marry suits. But it is clear that the creation of such causes of action at a time when so many States, in consequence of years of experience are doing away with them, may well prove to be a step in the wrong direction. (Congressional Record, Vol. IV, No. 79, Thursday, May 19, 1949, p. 2352.) The views thus expressed were accepted by both houses of Congress. In the light of the clear and manifest intent of our law making body not to sanction actions for breach of promise to marry, the award of moral damages made by the lower courts is, accordingly, untenable. The Court of Appeals said award: Moreover, it appearing that because of defendant-appellant's seduction power, plaintiff-appellee, overwhelmed by her love for him finally yielded to his sexual desires in spite of her age and self-control, she being a woman after all, we hold that said defendant-appellant is liable for seduction and, therefore, moral damages may be recovered from him under the provision of Article 2219, paragraph 3, of the new Civil Code. Apart from the fact that the general tenor of said Article 2219, particularly the paragraphs preceding and those following the one cited by the Court of Appeals, and the language used in said paragraph strongly indicates that the "seduction" therein contemplated is the crime punished as such in Article as such in Article 337 and 338 of the Revised Penal Code, which admittedly does not exist in the present case, we find ourselves unable to say that petitioner is morally guilty of seduction, not only because he is approximately ten (10) years younger than the complainant who around thirty-six (36) years of age, and as highly enlightened as a former high school teacher and a life insurance agent are supposed to be when she became intimate with petitioner, then a mere apprentice pilot, but, also, because, the court of

first instance found that, complainant "surrendered herself" to petitioner because, "overwhelmed by her love" for him, she "wanted to bind" "by having a fruit of their engagement even before they had the benefit of clergy." The court of first instance sentenced petitioner to pay the following: (1) a monthly pension of P30.00 for the support of the child: (2) P4,500, representing the income that complainant had allegedly failed to earn during her pregnancy and shortly after the birth of the child, as actual and compensation damages; (3) P5,000, as moral damages; and (4) P500.00, as attorney's fees. The Court of Appeals added to the second item the sum of P1,114.25 consisting of P144.20, for hospitalization and medical attendance, in connection with the parturiation, and the balance representing expenses incurred to support the child and increased the moral damages to P7,000.00. With the elimination of this award for damages, the decision of the Court of Appeals is hereby affirmed, therefore, in all other respects, without special pronouncement as to cost in this instance. It is so ordered.

Article 32 CIVIL LIABILITY FOR VIOLATION OF CONSTITUTIONAL RIGHTS I. Cojuangco vs CA [G.R. No. 119398. July 2, 1999] EDUARDO M. COJUANGCO JR., petitioner vs. COURT OF APPEALS, THE PHILIPPINE CHARITY SWEEPSTAKES OFFICE and FERNANDO O. CARRASCOSO JR., respondents. DECISION PANGANIBAN, J.: To hold public officers personally liable for moral and exemplary damages and for attorneys fees for acts done in the performance of official functions, the plaintiff must prove that these officers exhibited acts characterized by evident bad faith, malice, or gross negligence. But even if their acts had not been so tainted, public officers may still be held liable for nominal damages if they had violated the plaintiffs constitutional rights.
The Case

Before us is a Petition for Review under Rule 45 of the Rules of Court seeking to set aside the Decision [1] of the Court of Appeals[2] in CA-GR CV No. 39252 promulgated on September 9, 1994. The assailed Decision reversed the Regional Trial Court (RTC) of Manila, Branch 2, in Civil Case No. 91-55873, which disposed of the controversy in favor of herein petitioner in the following manner:[3] WHEREFORE, judgment is hereby rendered in favor of the plaintiff and against the defendants, ordering them, jointly and severally the following: ON THE FIRST CAUSE OF ACTION 1. To pay P143,000.00 plus interest thereon from March 26, 1986 until complete payment thereof; 2. To pay P28,000.00 plus interest thereon [from] June 8, 1986 until complete payment thereof; 3. To pay P142,700.00 plus interest thereon from July 10, 1987 until complete payment thereof; 4. To pay P70,000.00 plus interest thereon from February 1, 1987 until complete payment thereof; 5. To pay P140,000.00 plus interest thereon from March 22, 1987 until complete payment thereof; 6. To pay P28,000.00 plus interest thereon from April 26, 1987 until complete payment thereof; 7. To pay P14,000.00 plus interest thereon from May 17, 1987 until complete payment thereof; 8. To pay P140,000.00 plus interest thereon from August 9, 1987 until complete payment thereof; 9. To pay P174,000.00 plus interest thereon from December 13, 1987 until complete payment thereof; 10. 11. To pay P140,000.00 plus interest thereon from September 18, 1988 until complete payment thereof; All income derived from the foregoing amounts.

ON THE SECOND CAUSE OF ACTION

Ordering defendant Fernando O. Carrascoso the following: 1. To pay moral damages in the amount of One Hundred Thousand Pesos (P100,000.00); 2. To pay exemplary damages in the amount of Twenty Thousand Pesos (P20,000.00); 3. To pay attorneys fees in the amount of Thirty Thousand Pesos (P30,000.00); 4. To pay the costs of suit. The counterclaim is ordered dismissed, for lack of merit. SO ORDERED. In a Resolution[4] dated March 7, 1995, Respondent Court denied petitioners Motion for Reconsideration.
The Facts

The following is the Court of Appeals undisputed narration of the facts: Plaintiff [herein petitioner] is a known businessman-sportsman owning several racehorses which he entered in the sweepstakes races between the periods covering March 6, 1986 to September 18, 1989. Several of his horses won the races on various dates, landing first, second or third places, respectively, and winning prizes together with the 30% due for trainer/grooms which are itemized as follows: Date Place Stake Horse Winner 03/25/86 06/08/86 07/10/86 02/01/87 03/22/87 04/26/87 05/17/87 08/09/87 12/13/87 09/18/88 1st 2nd 1st 1st 1st 3rd 1st 1st 2nd 1st Hansuyen Stronghold Kahala Devil's Brew Time to Explode Stormy Petril Starring Role Star Studded Charade Hair Trigger TOTAL Racewinning 30% Due Training 57,000.00 12,000.00 57,300.00 30,000.00 60,000.00 12,000.00 6,000.00 60,000.00 75,000.00 60,000.00 429,300.00 Net Amount Withheld by Grooms 200,000.00 40,000.00 200,000.00 100,000.00 200,000.00 40,000.00 20,000.00 200,000.00 250,000.00 200,000.00 1,450,000.00 143,000.00 28,000.00 142,700.00 70,000.00 140,000.00 28,000.00 14,000.00 140,000.00 174,000.00 140,000.00 1,020,700.00 PCSO Prize Claims

[Herein petitioner] sent letters of demand (Exhibits A, dated July 3, 1986; B dated August 18, 1986; and C, dated September 11, 1990) to the defendants [herein private respondents] for the collection of the prizes due him. And [herein private respondents] consistently replied (Exhibits 2 and 3) that the demanded prizes are being withheld on advice of Commissioner Ramon A. Diaz of the Presidential Commission on Good Government. Finally on January 30, 1991, this case was filed before the Regional Trial Court of Manila. But before receipt of the summons on February 7, 1991, Presidential Commission on Good Government advi[s]ed defendants that it poses no more objection to the remittance of the prize winnings (Exh. 6) to [herein petitioner]. Immediately, this was communicated to Atty. Estelito Mendoza by [Private Respondent Fernando] Carrascoso [Jr.].[5] As culled from the pleadings of the parties, Atty. Estelito P. Mendoza, petitioners counsel, refused to accept the prizes at this point, reasoning that the matter had already been brought to court.
Ruling of the Trial Court

The trial court ruled that Respondent Philippine Charity Sweepstakes Office (PCSO) and its then chairman, Respondent Fernando O. Carrascoso Jr., had no authority to withhold the subject racehorse winnings of petitioner, since no writ of sequestration therefor had been issued by the Presidential Commission on Good Government (PCGG). It held that it was Carrascosos unwarranted personal initiative not to release the prizes. Having been a previous longtime associate of petitioner in his horse racing and breeding activities, he had supposedly been aware that petitioners winning horses were not ill-gotten. The trial court held that, by not paying the winnings, Carrascoso had acted in bad faith amounting to the persecution and harassment of petitioner and his family. [6] It thus ordered the PCSO and Carrascoso to pay in solidum petitioners claimed winnings plus interests. It further ordered Carrascoso to pay moral and exemplary damages, attorneys fees and costs of suit. While the case was pending with the Court of Appeals, petitioner moved for the partial execution pending appeal of the RTC judgment, praying for the payment of the principal amount of his prize winnings. Private respondents posed no objection thereto and manifested their readiness to release the amount prayed for. Hence, the trial court issued on

February 14, 1992, an Order [7] for the issuance of a writ of execution in the amount of P1,020,700. Accordingly, on May 20, 1992, Respondent PCSO delivered the amount to petitioner.
Ruling of the Court of Appeals

Before the appellate court, herein private respondents assigned the following errors: [8] I THE COURT A QUO ERRED IN HOLDING THAT DEFENDANTS-APPELLANTS ACTED IN BAD FAITH IN WITHHOLDING PLAINTIFFAPPELLEE[S] PRIZE[S]; II. THE COURT A QUO ERRED [IN] AWARDING MORAL DAMAGES, EXEMPLARY DAMAGES AND ATTORNEYS FEES IN FAVOR OF PLAINTIFF-APPELLEE. In reversing the trial courts finding of bad faith on the part of Carrascoso, the Court of Appeals held that the former PCSO chairman was merely carrying out the instruction of the PCGG in regard to the prize winnings of petitioner. It noted that, at the time, the scope of the sequestration of the properties of former President Ferdinand E. Marcos and his cronies was not well-defined. Respondent Court explained:[9] xxx Under those equivocalities, defendant Carrascoso could not be faulted in asking further instructions from the PCGG, the official government agency on the matter, on what to do with the prize winnings of the [petitioner], and more so, to obey the instructions subsequently given. The actions taken may be a hard blow on [petitioner] but defendant Carrascoso had no alternative. It was the safest he could do in order to protect public interest, act within the powers of his position and serve the public demands then prevailing. More importantly, it was the surest way to avoid a possible complaint for neglect of duty or misfeasance of office or an anti-graft case against him. The Court of Appeals also noted that the following actuations of Carrascoso negated bad faith: (1) he promptly replied to petitioners demand for the release of his prizes, citing PCGGs instruction to withhold payment thereof; (2) upon PCGGs subsequent advice to release petitioners winnings, he immediately informed petitioner thereof; and (3) he interposed no objection to the partial execution, pending appeal, of the RTC decision. Respondent Court finally disposed as follows: [10] IN VIEW OF ALL THE FOREGOING, the judgment appealed from is REVERSED and SET ASIDE and a new one entered DISMISSING this case. No pronouncement as to costs. On September 29, 1994, petitioner filed a Motion for Reconsideration, which was denied on March 7, 1995. Hence, this petition.[11]
Issues

Petitioner asks this Court to resolve the following issues: a. Whether the Court of Appeals had jurisdiction over the appeal of respondent Philippine Charity Sweepstakes Office (PCSO); b. Whether the appeal of respondent Carrascoso, Jr. should have been dismissed for his failure to file an appeal brief; c. Whether the Court of Appeals had jurisdiction to review and reverse the judgment on a cause of action which was not appealed from by the respondents; d. Whether the award for damages against respondent Carrascoso, Jr. is warranted by evidence and the law. [12] Being related, the first two issues will be discussed jointly.
The Courts Ruling

The petition is partly meritorious.

First and Second Issues: Effect of PCSOs Appeal Brief

Petitioner contends that the appeal filed by the PCSO before Respondent Court of Appeals should have been dismissed outright. The appealed RTC decision ruled on two causes of action: (1) a judgment against both PCSO and Carrascoso to jointly and severally pay petitioner his winnings plus interest and income; and (2) a judgment against Carrascoso alone for moral and exemplary damages, as well as attorneys fees and costs. The PCSO, through the Office of the Government Corporate Counsel (OGCC), appealed only the second item: the impropriety of the award of damages xxx. This appealed portion, however, condemned only Carrascoso, not the PCSO. Technically, petitioner claims, PCSO could not have appealed the second portion of the RTC Decision which ruled against Carrascoso only, and not against the government corporation. Petitioner further avers that Carrascoso failed to file his own appeal brief; accordingly, his appeal should have been dismissed. The PCSO brief, he submits, could not have inured to the benefit of Carrascoso, because the latter was no longer chairman of that office at the time the brief was filed and, hence, could no longer be represented by the OGCC.

On the other hand, respondents aver that the withholding of petitioners racehorse winnings by Respondent Carrascoso occurred during the latters incumbency as PCSO chairman. According to him, he had honestly believed that it was within the scope of his authority not to release said winnings, in view of then President Corazon C. Aquinos Executive Order No. 2 (EO 2), in which she decreed the following: (1) Freeze all assets and properties in the Philippines in which former President Marcos and/or his wife, Mrs. Imelda Romualdez Marcos, their close friends, subordinates, business associates, dummies, agents, or nominees have any interest or participation; (2) Prohibit any person from transferring, conveying, encumbering or otherwise depleting or concealing such assets and properties or from assisting or taking part in their transfer, encumbrance, concealment, or dissipation, under pain of such penalties as are prescribed by law. Moreover, he argues that he sought the advice of the PCGG as to the nature of the subject racehorse winnings, and he was told that they were part of petitioners sequestered properties. Under these circumstances and in his belief that said winnings were fruits of petitioners ill-gotten properties, he deemed it his duty to withhold them. The chairman of the PCSO, he adds, is empowered by law to order the withholding of prize winnings. The representation of the OGCC on behalf of the PCSO and Mr. Carrascoso is pursuant to its basic function to act as the principal law office of all government-owned or controlled corporations, their subsidiaries, other corporate offsprings and government acquired asset corporations and xxx [to] exercise control and supervision over all legal departments or divisions maintained separately and such powers and functions as are now or may hereafter be provided by law. [13] The OGCC was therefore duty-bound to defend the PCSO because the latter, under its charter, [14] is a government-owned corporation. The government counsels representation extends to the concerned government functionarys officers when the issue involves the latters official acts or duties. [15] Granting that upon his separation from the government, Carrascoso ceased to be entitled to the legal services of the government corporate counsel, this development does not automatically revoke or render ineffective his notice of appeal of the trial courts Decision. The filing of an appellants brief is not an absolute requirement for the perfection of an appeal.[16] Besides, when noncompliance with the Rules of Court is not intended for delay or does not prejudice the adverse party, the dismissal of an appeal on a mere technicality may be stayed and the court may, at its sound discretion, exercise its equity jurisdiction.[17] The emerging trend in our jurisprudence is to afford every party-litigant the amplest opportunity for the proper and just determination of his cause, free from the constraints of technicalities. [18] What is important is that Respondent Carrascoso filed his notice of appeal on time and that his counsel before the lower court, who was presumed to have continued representing him on appeal, [19] had filed an appeal brief on his behalf. The Manifestation of Carrascoso before the Court of Appeals that he intended to hire the services of another counsel and to file his own brief did not ipso facto effect a change of counsel under the existing rules of procedure. The former counsel must first file a formal petition withdrawing his appearance with the clients consent, and the newly appointed attorney should formally enter his appearance before the appellate court with notice to the adverse party. [20] But other than Carrascosos manifestation of his intention to hire a counsel of his own, the requisites for a change of counsel were not fully complied with. Nevertheless, as stated earlier, even an effective change of attorney will not abrogate the pleadings filed before the court by the former counsel. All in all, we hold that the appellate court committed no reversible error in not dismissing the appeal, since this matter was addressed to its sound discretion, and since such discretion was exercised reasonably in accordance with the doctrine that cases should, as much as possible, be decided on their merits.
Third Issue: Scope of the Appeal Before Respondent Court

Petitioner is correct in asserting that the entire RTC judgment was not appealed to Respondent Court of Appeals. The errors assigned in the appellants Brief, as quoted earlier, attacked only the trial courts (1) conclusion that defendantsappellants acted in bad faith and (2) award of damages in favor of herein petitioner. In short, only those parts relating to the second cause of action could be reviewed by the CA. Respondent Court could not therefore reverse and set aside the RTC Decision in its entirety and dismiss the original Complaint without trampling upon the rights that had accrued to the petitioner from the unappealed portion of the Decision. It is well-settled that only the errors assigned and properly argued in the brief, and those necessarily related thereto, may be considered by the appellate court in resolving an appeal in a civil case. [21] The appellate court has no power to resolve unassigned errors, except those that affect the courts jurisdiction over the subject matter and those that are plain or clerical errors.[22]

Having said that, we note, however, that Respondent Court in its Decision effectively recognized the confines of the appeal, as it stated at the outset that this appeal shall be limited to the damages awarded in the [RTC] decision other than the claims for race winning prizes.[23] The dispositive portion of the Decision must be understood together with the aforequoted statement that categorically defined the scope of Respondent Courts review. Consequently, what the assailed Decision reversed and set aside was only that part of the appealed judgment finding bad faith on the part of herein Private Respondent Carrascoso and awarding damages to herein petitioner. It did not annul the trial courts order for Respondent PCSO to pay Petitioner Cojuangco his racehorse winnings, because this Order had never been assigned as an error sought to be corrected. On the contrary, Respondent PCSO had probably never intended to further object to the payment, as it so manifested before the trial court [24] in answer to Petitioner Cojuangcos Motion [25] for the partial execution of the judgment. In fact, on May 20, 1992, PCSO willingly and readily paid the petitioner the principal amount ofP1,020,700 in accordance with the writ of execution issued by the trial court on February 14, 1992. [26] Obviously and plainly, the RTC judgment, insofar as it related to the first cause of action, had become final and no longer subject to appeal. In any event, the Court of Appeals discussion regarding the indispensability of the PCGG as a party-litigant to the instant case was not pivotal to its reversal of the appealed trial court Decision. It merely mentioned that the non-joinder of the PCGG made the Complaint vulnerable or susceptible to dismissal. It did not rule that it was the very ground, or at least one of the legal grounds, it relied upon in setting aside the appealed judgment. It could not have legally done so anyway, because the PCGGs role in the controversy, if any, had never been an issue before the trial court. Well-settled is the doctrine that no question, issue or argument will be entertained on appeal unless it has been raised in the court a quo.[27] The aforementioned discussion should therefore be construed only in light of the previous paragraphs relating to Respondent Carrascosos good faith which, the appellate court surmised, was indicated by his reliance on PCGGs statements that the subject prize winnings of Petitioner Cojuangco were part of the sequestered properties. In other words, Respondent Courts view that the non-inclusion of PCGG as a party made the Complaint dismissible was a mere aside that did not prejudice petitioner.
Fourth Issue: Damages

Petitioner insists that the Court of Appeals erred in reversing the trial courts finding that Respondent Carrascoso acted in bad faith in withholding his winnings. We do not think so. Bad faith does not simply connote bad judgment or simple negligence. It imports a dishonest purpose or some moral obliquity and conscious doing of a wrong, a breach of a known duty due to some motive or interest or ill will that partakes of the nature of fraud.[28] We do not believe that the above judicially settled nature of bad faith characterized the questioned acts of Respondent Carrascoso. On the contrary, we believe that there is sufficient evidence on record to support Respondent Courts conclusion that he did not act in bad faith. It reasoned, and we quote with approval:[29] A close examination of the June 10, 1986 letter of defendant Carrascoso to Jovito Salonga, then Chairman of the Presidential Commission on Good Government, readily display uncertainties in the mind of Chairman Carrascoso as to the extent of the sequestration against the properties of the plaintiff. In the said letter (Exhibit 1) the first prize for the March 16, 1986 draw and the second prize for the June 8, 1986 draw, were, in the meantime, being withheld to avoid any possible violation of your sequestration order on the matter because while he is aware of the sequestration order issued against the properties of defendant Eduardo Cojuangco, he is not aware of the extent and coverage thereof. It was for that reason that, in the same letter, defendant Carrascoso requested for a clarification whether the prizes are covered by the order and if it is in the affirmative, for instructions on the proper disposal of the two (2) prizes taking into account the shares of the trainer and the groom. Correspondingly, in a letter dated June 13, 1986 (Exhibit 2) PCGG Commissioner Ramon A. Diaz authorized the payment to the trainer and the groom but instructed the withholding of the amounts due plaintiff Eduardo Cojuangco. This piece of evidence should be understood and appreciated in the light of the circumstances prevailing at the time. PCGG was just a newly born legal creation and sequestration was a novel remedy which even legal luminaries were not sure as to the actual procedure, the correct approach and the manner how the powers of the said newly created office should be exercised and the remedy of sequestration properly implemented without violating due process of law. To the mind of their newly installed power, the immediate concern is to take over and freeze all properties of former President Ferdinand E. Marcos, his immediate families, close associates and cronies. There is no denying that plaintiff is a very close political and business associate of the former President. Under those equivocalities, defendant Carrascoso could not be faulted in

asking further instructions from the PCGG, the official government agency on the matter, on what to do with the prize winnings of the plaintiff, and more so, to obey the instructions subsequently given. The actions taken may be a hard blow on plaintiff but defendant Carrascoso had no alternative. It was the safest he could do in order to protect public interest, act within the powers of his position and serve the public demands then prevailing. More importantly, it was the surest way to avoid a possible complaint for neglect of duty or misfeasance of office or an anti-graft case against him. xxx xxx xxx Moreover, the finding of bad faith against defendant Carrascoso is overshadowed by the evidences showing his good faith. He was just recently appointed chairman of the PCGG when he received the first demand for the collection of the prize for the March 16, 1986 race which he promptly answered saying he was under instructions by the PCGG to withhold such payment. But the moment he received the go signal from the PCGG that the prize winnings of plaintiff Cojuangco could already be released, he immediately informed the latter thereof, interposed no objection to the execution pending appeal relative thereto, in fact, actually paid off all the winnings due the plaintiff. xxx Carrascosos decision to withhold petitioners winnings could not be characterized as arbitrary or whimsical, or even the product of ill will or malice. He had particularly sought from PCGG a clarification of the extent and coverage of the sequestration order issued against the properties of petitioner. [30] He had acted upon the PCGGs statement that the subject prizes were part of those covered by the sequestration order and its instruction to hold in a proper bank deposits [sic] earning interest the amount due Mr. Cojuangco. [31] Besides, EO 2 had just been issued by then President Aquino, freez[ing] all assets and properties in the Philippines [of] former President Marcos and/or his wife, xxx their close friends, subordinates, business associates, xxx; and enjoining the transfer, encumbrance, concealment, or dissipation [thereof], under pain of such penalties as prescribed by law. It cannot, therefore, be said that Respondent Carrascoso, who relied upon these issuances, acted with malice or bad faith. The extant rule is that a public officer shall not be liable by way of moral and exemplary damages for acts done in the performance of official duties, unless there is a clear showing of bad faith, malice or gross negligence. [32] Attorneys fees and expenses of litigation cannot be imposed either, in the absence of a clear showing of any of the grounds provided therefor under the Civil Code.[33] The trial courts award of these kinds of damages must perforce be deleted, as ruled by the Court of Appeals. Nevertheless, this Court agrees with the petitioner and the trial court that Respondent Carrascoso may still be held liable under Article 32 of the Civil Code, which provides: Art. 32. Any public officer or employee, or any private individual, who directly or indirectly obstructs, defeats, violates or in any manner impedes or impairs any of the following rights and liberties of another person shall be liable to the latter for damages: xxx xxx (6) The right against deprivation of property without due process of law; xxx xxx In Aberca v. Ver,
[34]

xxx xxx

this Court explained the nature and the purpose of this article as follows:

It is obvious that the purpose of the above codal provision is to provide a sanction to the deeply cherished rights and freedoms enshrined in the Constitution. Its message is clear; no man may seek to violate those sacred rights with impunity. In times of great upheaval or of social and political stress, when the temptation is strongest to yield -- borrowing the words of Chief Justice Claudio Teehankee -- to the law of force rather than the force of law, it is necessary to remind ourselves that certain basic rights and liberties are immutable and cannot be sacrificed to the transient needs or imperious demands of the ruling power. The rule of law must prevail, or else liberty will perish. Our commitment to democratic principles and to the rule of law compels us to reject the view which reduces law to nothing but the expression of the will of the predominant power in the community. Democracy cannot be a reign of progress, of liberty, of justice, unless the law is respected by him who makes it and by him for whom it is made. Now this respect implies a maximum of faith, a minimum of idealism. On going to the bottom of the matter, we discover that life demands of us a certain residuum of sentiment which is not derived from reason, but which reason nevertheless controls. [35] Under the aforecited article, it is not necessary that the public officer acted with malice or bad faith. [36] To be liable, it is enough that there was a violation of the constitutional rights of petitioner, even on the pretext of justifiable motives or good faith in the performance of ones duties.[37] We hold that petitioners right to the use of his property was unduly impeded. While Respondent Carrascoso may have relied upon the PCGGs instructions, he could have further sought the specific legal basis therefor. A little exercise of

prudence would have disclosed that there was no writ issued specifically for the sequestration of the racehorse winnings of petitioner. There was apparently no record of any such writ covering his racehorses either. The issuance of a sequestration order requires the showing of a prima facie case and due regard for the requirements of due process. [38] The withholding of the prize winnings of petitioner without a properly issued sequestration order clearly spoke of a violation of his property rights without due process of law. Article 2221 of the Civil Code authorizes the award of nominal damages to a plaintiff whose right has been violated or invaded by the defendant, for the purpose of vindicating or recognizing that right, not for indemnifying the plaintiff for any loss suffered.[39] The court may also award nominal damages in every case where a property right has been invaded. [40] The amount of such damages is addressed to the sound discretion of the court, with the relevant circumstances taken into account.[41] WHEREFORE, the petition is hereby partially GRANTED. The assailed Decision, as herein clarified, is AFFIRMED with the MODIFICATION that Private Respondent Fernando O. Carrascoso Jr. is ORDERED TO PAY petitioner nominal damages in the amount of fifty thousand pesos (P50,000). No pronouncement as to costs. SO ORDERED. Doctrine: To hold public officers personally liable for moral and exemplary damages and for attorneys fees for acts done in the performance of official functions, the plaintiff must prove that these officers exhibited acts characterized by evident bad faith, malice, or gross negligence. But even if their acts had not been so tainted, public officers may still be held liable for nominal damages if they had violated the plaintiffs constitutional rights. Facts: Petitioner Eduardo Cojuangco Jr. filed a Petition for Review under Rule 45 of the ROC seeking to set aside CAs decision, after it reversed a favorable decision of the RTC that ordered the private respondents to pay him moral and exemplary damages, attorneys fees and costs of the suit, and denied his Motion for Reconsideration. Cojuangco, a known businessman-sportsman owned several racehorses which he entered in sweepstakes races. Several of his horses won the races on various dates, and won prizes together with the 30% due for trainer/grooms. He sent letters of demand for the collection of the prizes due him but private respondents PCSO and its then chairman Fernando Carrascoso Jr. consistently replied that the demanded prizes are being withheld on advice of PCGG. Consequently, Cojuangco filed this case before the Manila RTC but before the receipt summons, PCGG advised private respondents that it poses no more objection to its remittance of the prized winnings. This was immediately communicated to petitioners counsel Estelito Mendoza by Carrascoso but the former refused to accept the prizes at this point, reasoning that the matter had already been brought to court. The trial court ruled that the private respondents had no authority to withhold the subject racehorse winnings since no writ of sequestration was issued by PCGG. Ordering the private respondents to pay in solidum the claimed winnings, the trial court further held that, by not paying the winnings, Carrascoso had acted in bad faith amounting to the persecution and harassment of petitioner and his family. While the case was pending with the CA, the petitioner moved for partial execution pending appeal to which the private respondents posed no objection to. CA reversed the trial courts finding of bad faith, holding that the former PCSO chairman was merely carrying out the instruction of the PCGG. It likewise noted that Carrascosos acts of promptly replying to demands and not objecting to partial execution negated bad faith. Issue: W/N the award for damages against respondent Carrascoso is warranted by evidence the law Held: YES AND NO. Petitioner is only entitled to nominal damages. Bad faith does not simply connote bad judgment or simple negligence. It imports a dishonest purpose or some moral obliquity and conscious doing of a wrong, a breach of a known duty due to some motive or interest of ill will that partakes of the nature of fraud. There is sufficient evidence on record to support Respondent Courts conclusion that Carrascoso did not act in bad faith. His letters to PCGG indicated his uncertainties as to the extent of the sequestration against the properties of the plaintiff. There is also denying that plaintiff is a very close political and business associate of the former President Marcos. Sequestration was also a novel remedy. Under these equivocalities, Carrascoso could not be faulted in asking further instructions from the PCGG, on what to do and more so, to obey the instructions given. Besides, EO2 has

just been issued by President Aquino, freezing all assets and properties in the Philippines (of) former President Marcos and/or his wifetheir close friends, subordinates, business associates The extant rule is that public officers shall not be liable by way of moral and exemplary damages for acts done in the performance of official duties, unless there is a clear showing of bad faith, malice or gross negligence. Attorneys fees and expenses of litigation cannot be imposed either, in the absence of clear showing of any of the grounds provided therefor under the Civil Code. The trial courts award of these kinds of damages must perforce be deleted. Nevertheless, this Court agrees with the petitioner and the trial that Respondent Carrascoso may still be held liable under Article 32 of the Civil Code, which provides: Art. 32. Any public officer or employee, or any private individual, who directly or indirectly obstruct, defeats, violates or in any manner impedes or impairs any of the following rights and liberties of another person shall be liable to the latter for damages: xxx xxx xxx (6) The rights against deprivation of property without due process of law; Under the aforecited article, it is not necessary that the public officer acted with malice or bad faith. To be liable, it is enough that there was a violation of the constitutional rights of petitioner, even on the pretext of justifiable motives or good faith in the performance of ones duties. We hold that petitioners right to the use of his property was unduly impeded. While Respondent Carrascoso may have relied upon the PCGGs instructions, he could have further sought the specific legal basis therefor. A little exercise of prudence would have disclosed that there was no writ issued specifically for the sequestration of the racehorse winnings of petitioner. There was apparently no record of any such writ covering his racehorses either. The issuance of a sequestration order requires the showing of a prima facie case and due regard for the requirements of due process. The withholding of the prize winnings of petitioner without a properly issued sequestration order clearly spoke of a violation of his property rights without due process of law. Art. 2221 of the Civil Code authorizes the award of nominal damages to a plaintiff whose right has been violated or invaded by the defendant, for the purpose of vindicating or recognizing that right, not for indemnifying the plaintiff for any loss suffered. II. Alcuaz vs PSBA G.R. No. 76353 May 2, 1988 SOPHIA ALCUAZ, MA. CECILIA ALINDAYU BERNADETTE ANG, IRNA ANONAS, MA, REMEDIOS BALTAZAR, CORAZON BUNDOC JOHN CARMONA, ANNA SHIELA DIOSO, RAFAEL ENCARNACION, ET AL., petitioners, vs. PHILIPPINE SCHOOL OF BUSINESS ADMINISTRATION, Quezon City Branch (PSBA), DR. JUAN D. LIM, in his capacity as President and Chairman of Board of Trustees of PSBA, ATTY. P. PAULINO, etc., et al., respondents. Rosalinda L. Santos for petitioners. Balgos & Perez Law Office for respondents. Merly Basco-Olano for Intervenor Union. Camilo Flores for Intervenor PARAS, J.: This is a petition for review on certiorari and prohibition with motion for preliminary mandatory injunction seeking to nullify the action taken by herein respondent Philippine School of Business Administration, Quezon City Branch, in violation of petitioners' constitutional rights. The factual background of this case is as follows: Petitioners are all bonafide students of the Philippine School of Business Administration, Quezon City, while respondents, are the Philippine School of Business Administration (hereinafter referred to as PSBA) Quezon City Branch, a 'non-stock institution of higher learning organized and existing under the laws of the Philippines, Juan D. Lim, President and Chairman of the Board of PSBA; Benjamin P. Paulino, Vice President for Admission and Registration of PSBA, Q.C.; Ruben Estrella, Officer-in-Charge; and Ramon Agapay, Director of the Office of Student Affairs of PSBA, Q.C. and Romeo Rafer, Chief Security of PSBA, Q.C.

As early as March 22, 1986, the students of the respondent school and the respondent PSBA, Q.C. had already agreed on certain matters which would govern their activities within the school (Rollo, p. 75). Among the agreements reached at that time were: On The exercise of student's democratic rights, it has been agreed that protest actions can be conducted any day as long as they meet the following requirements: a) that they be held at the PSBA quadrangle from 12:30 p.m. to 1:00 p.m. only; b) that the protest action be removed to the PSBA parking lot if it will exceed the 1:00 time limit; c) that if the protest move exceeds 1:00 it will be limited only up to 2:30 p.m. d) However, before any action is taken the organizers of the protest action should secure a permit 6 days before, or if on the same day, it still be under the "first-come-first-serve served" basis in the use of facilities, volume of sound system shall be adjusted so as not to disturb classes. It is the firm stand of the administration of PSBA that it will not allow the students to directly participate in the policymaking body of the school, as this is provided by law. However, the administration will be open to suggestions and questions, especially those regarding tuition fee increases and other policies that directly affect us. In spite of the above-stated agreement, petitioners felt the need to hold dialogues. Among others they demanded the negotiation of a new agreement, which demand was turned down by the school, resulting in mass assemblies and barricades of school entrances (Rollo. p. 20; 347-348). "Subsequently dialogues proved futile." Finally, petitioners received uniform letters from respondents dated October 8, 1986 (Rollo, p. 23) giving them 3 days to explain why the school should not take / mete out any administrative sanction on their direct participation and/or conspiring with others in the commission of tumultuous and anarchic acts on Thursday (Oct. 2), Friday (Oct. 3) and Tuesday (Oct. 7). <re|| an1w> The aforestated letter was answered by the counsel for the students in a reply letter dated October 22, 1982 Annex "E" (Rollo, P. 26). During the regular enrollment period, petitioners and other students similarly situated were allegedly blacklisted and denied admission for the second semester of school year 1986-1987. On October 28,1986 the President of the Student Council filed a complaint with the Director of the MECS against the PSBA for barring the enrollment of the Student Council Officers and student leaders. (Annex "F" Rollo, p. 30). Simultaneously on the same date, the student council wrote the President, Board of Trustees, requesting for a written statement of the school's decision regarding their enrollment (Rollo, p. 31). Another demand letter was made by Counsel for the students Atty. Alan Romulo Yap, also to the President, Board of Trustees, to enroll his clients within forty-eight (48) hours (Rollo. p. 33). All these notwithstanding, no relief appeared to be forthcoming, hence this petition. In the resolution of November 7,1986, the Second Division of this Court without giving due course to the petition required respondents to comment thereon and set the hearing for preliminary mandatory injunction on November 10, 1986 (Rollo, p. 35). In compliance therewith on November 9, 1986, respondents filed their comment and opposition to the application for the issuance of a writ of preliminary mandatory injunction praying that the petition for the issuance of a writ be denied not only for lack of merit but also for being barred by res judicata (Rollo, p. 67). Meanwhile, a motion for intervention was filed on November 10, 1986, by the Philippine School of Business Administration, Quezon City Faculty Union, (PSBA, QC-FU for brevity) representing the faculty members hereinafter referred to as intervenors, on the ground of commonality of issues and cause of action with that of the petitioners (Rollo, p. 36). At the hearing on the petition for preliminary mandatory injunction, where counsel for all the parties appeared and argued their causes, the Court Resolved to grant the motion for intervention and to require the intervenors to comment on the petition and the petitioners to file a reply thereto (Rollo, p. 66, copy corrected, p. 167). On the same day respondents filed their comment and opposition to the application for the issuance of a writ of preliminary mandatory injunction (Rollo, pp. 67-74). On November 12, 1986, this Court resolved to issue a temporary mandatory order directing the respondents herein (a) to re-enroll the petitioners herein and (b) to re-admit the intervenors to their former positions without prejudice to the investigation to be conducted by the school authorities (Rollo, p. 141). Said Order was issued on November 14, 1986 (Rollo, pp. 142-143). A supplemental comment and opposition to application for a writ of preliminary mandatory injunction dated November 11, 1986 was filed by herein respondents (Rollo, p. 150), while an urgent motion to reiterate prayer for issuance of preliminary mandatory injunction dated November 13, 1986 was filed by herein petitioners (Rollo, pp. 162-163).

Instead of complying with tile resolution of November 12, 1986 an urgent motion for reconsideration was filed by herein respondents on November 15, 1987 (Rollo, p. 194) praying that this Court reconsider the aforesaid resolution. On November 18, 1986 petitioners and intervenors filed a joint urgent motin to cite respondents in contempt (Rollo, p. 199), while respondents filed a supplemental motion for reconsideration, also on the same date (Rollo, p. 205). In the resolution of November 19,1986, respondents' motion for reconsideration and sumplemental motion for reconsideration were denied for lack of merit, and the denial was dedlared FINAL. The urgent motion of counsel for petitioners and intervanorts to cite respondents in contempt of court was NOTED (Rollo, p. 225). An urgent motion for intervention and answer in intervention was filed by Nelia M. Lat, Annalisa T. Geronimo, Leonora Q. Bueniraje, Maria L. Araas, Eduerijes Llanto, Charita, R. Chong, Marilou Garcia, Amelita R. Sia, Loida O. Ladines, Dominic P. Santos, Noly R. Chong, and Arthur R. Cacdac for themselves and on behalf of other students of the PSBA, Quezon City, who are similarly situated, to allolw them to intervene as respondents dated November 11, 1986 (Rollo, p. 227) which was granted by this Court in a resoulution dated December 3, 1986 (Rollo, p. 240) On November 20, 1986, the respondents filed their compliance with the temporary mandatory order; Issued by this Court pursuant to its resolution dated November 12, 1987 (Rollo, p. 237). On November 29, 1986, respondents filed their comment on the motion for intervention of the PSBA Quezon City Faculty Union (Rollo, p. 252). A consolidated reply to respondents' supplemental comment and opposition to application for a writ of preliminary mandatory injunction, urgent motion for reconsideration and supplemental motion for reconsideration was filed by herein in intervenors on December 2,1986 (Rollo. p. 242). In the resolution of January 21, 1987, the petition was given due course and parties parties were required to file their respective memoranda (Rollo, p. 266). Accordingly, respondents filed their memorandum on February 23, 1987, (Rollo, p. 269) while the intervenor Union filed its memorandum on March 13, 1987 (Rollo, p. 296). Respondents filed their reply memorandum on April 13, 1987 praying that the intervention of the intervening teachers be dismissed (Rollo, p. 328). Respondents filed their manifestation and motion dated April 27, 1987 stating that pursuant to this court's order dated November 12, 1986, the school authorities created a special investigating committee to conduct an investigation, which submitted a report with recommendations (Rollo, p. 335), the report reading as follows: After due deliberation, the Committee hereby submits the following recommendation: STUDENT-RESPONDENTS A. RENATO PALMA, BERNADETTE ANG, ROGELIO TAGANAS are hereby recommended to be EXONERATED of all charges. B. SOPHIA ALCUAZ (up to No. 19) are hereby recommended to be HONORABLY DISMISSED from PSBA Q.C. roll of students without prejudice to reenrollment on a case to case basis if found suitable and justified. FACULTY-RESPONDENTS A. To be EXONERATED of all charges JOSE C. ANTONIO, DONALLY BRINGAS, DANTE CAJUCOM, LEO LOQUELLANO SOLITA A. CRUZ, and N TOLENTINO. B. To be reprimanded with a WARNING that a repetition of similar acts in the future will be dealt with more severely FLORANTE BAGSIC and ATENOGENES BONDOC. C. MR. SEVERINO CORTES, JR. is hereby recommended for non-renewal of his semester to semester appointment. D. MESSRS. ASSER (BONG) TAMAYO and RENE Q. ENCARNACION are hereby recommended for termination of their services as faculty members. Respondents adopted the aforestated recommendations of the Committee and prayed that the case be dismissed for having become moot (Rollo, p. 341). On April 30, a second urgent manifestation and motion was filed by respondent praying that the recommendation of special Committee as implemented by its President be made effective by the discontinuance of the summer enrollment of petitioners Anna Shiela A. Dinoso, Zeny Gudito and Ma. Shalina Pitoy upon the refund to them of all the fees they have paid to the school (Rollo, p. 397). An urgent motion to cite for contempt herein respondents was filed on May 5, 1987 for violating this court's temporary mandatory order on November 12, 1986, by discharging and striking off from the roll of students petitioners Dinoso, Gudito and Pitoy (Rollo, p. 400) while an opposition to urgent motion to cite for contempt was filed by herein respoddents on May 20, 1987 (Rollo, p. 413). On May 20, 1987, Intervenor Union filed their Intervenor's Comment on Respondents' reply memorandum and manifestation and motion with motion to cite respondent in contempt (Rollo, p. 417).

On June 8, 1987, petitioners filed their very urgent motion for an order to re-enroll (Rollo, p. 620) followed by an urgent supplemental motion and Reply to opposition dated June 9, 1987 (Rollo, p. 623). Later on, an Opposition to "very urgent motion for order to re-enroll was filed by herein respondents on June 11, 1987 (Rollo, p. 625) while on June 15,1987, herein intervenor Union filed its manifestation and motion with urgent motion reiterating intervenor's motion to cite respondents in contempt (Rollo, p. 629). On June 16,1987 respondents filed their opposition to urgent motion to oppose petitioners' urgent motion dated June 9, 1987 (Rollo, p. 795)'. Petitioners filed their memorandum on June 17, 1987 (Rollo, p. 799). On June 18, 1987, respondents filed their counter-comment and opposition to motion to cite respondents in contempt (Rollo, p. 815). Subsequently, on June 25,1987, respondents filed their Reply Memorandum on the petitioners' memorandum (Rollo, p. 820.). In the resolution of June 29, 1 987 the motion of petitioners to compel respondents to readmit or re-enroll herein petitioners was denied except in the case of three (3) student petitioners cleared by the investigating committee and who had been recommended to be readmitted or re-enrolled. This court further stated that the reason for the non-enrollment of the others is that the results of the investigation conducted indicate prima facie the violation by the majority of the petitioners of the rules and regulations of respondent school (Rollo, p. 793). The Court further resolved to require respondent school to show cause why it should not be adjudged in contempt for refusing to reinstate the intervenorsfaculty members in the interim. Respondents filed the manifestation on July 3, 1987 informing this Court that they did not refuse to reinstate the intervenors/faculty members; that they were in fact actually reinstated in compliance with the Court's temporary mandatory order (Rollo, p. 829). Hence, the motion for contempt should be dismissed. The pivotal issue of this case is whether or not there has been deprivation of due process for petitioners-students who have been barred from re-enrollment and for intervenors teachers whose services have been terminated as faculty members, on account of their participation in the demonstration or protest charged by respondents as "anarchic" rallies, and a violation of their constitutional rights of expression and assembly. Petitioners allege that they have been deprived of procedural due process which requires that there be due notice and hear hearing and of substantive due process which requires that the person or body to conduct the investigation be competent to act and decide free from bias or prejudice. They claim that barring them from enrollment for the second semester is equivalent to expulsion which cannot be valid and effective without the required MEC's approval (Rollo, pp. 1213). Furthermore, petitioners point out that the acts of respondents constitute a wanton and deliberate disregard of petitioners' freedom of expression (ibid). In the same manner, intervenors-teachers claim that their constitutional right to due process has been violated when they were summarily dismissed without affording them the opportunity to be heard (Rollo, p. 301). It is beyond dispute that a student once admitted by the school is considered enrolled for one semester. It is provided in Paragraph 137 Manual of Regulations for Private Schools, that when a college student registers in a school, it is understood that he is enrolling for the entire semester. Likewise, it is provided in the Manual, that the "written contracts" required for college teachers are for 'one semester." It is thus evident that after the close of the first semester, the PSBA-QC no longer has any existing contract either with the students or with the intervening teachers. Such being the case, the charge of denial of due process is untenable. It is a time-honored principle that contracts are respected as the law between the contracting parties (Henson vs. Intermediate Appellate Court, et al., G.R. No. 72456, February 19, 1987, citing: Castro vs. Court of Appeals, 99 SCRA 722; Escano vs. Court of Appeals, 1 00 SCRA 197). <re||an1w> The contract having been terminated, there is no more contract to speak of. The school cannot be compelled to enter into another contract with said students and teachers. "The courts, be they the original trial court or the appellate court, have no power to make contracts for the parties." (Henson vs. Intermediate Appellate Court, et al., supra). Under similar circumstances where students have been refused re-enrollment but without allegation of termination of contracts as in the instant case, this Court has stressed, that due process in disciplinary cases involving students does not entail proceedings and hearings similar to those prescribed for actions and proceedings in courts of justice. Such proceedings may be summary and cross-examination is not even an essential part thereof. Accordingly, the minimum standards laid down by the Court to meet the demands of procedural due process are: (1) the students must be informed in writing of the nature and cause of any accusation against them; (2) they shall have the right to answer the charges against them, with the assistance of counsel, if desired: (3) they shall be informed of the evidence against them; (4) they

shall have the right to adduce evidence in their own behalf and (5) the evidence must be duly considered by the investigating committee or official designated by the school authorities to hear and decide the case (Guzman vs. National University, 142 SCRA 706-707 [1986]). Tested under said standards, the records show that the proceedings in the case at bar, at the outset satisfied conditions No. 1 and 2, but, without a hearing, conditions No. 3, 4 and 5 had evidently not been completed with. It is not disputed that printed Rules and Regulations of the PSBA-Q.C. are distributed at the beginning of each school year to the students including petitioners. The Rules, among other things, provide: Enrollment in the PSBA is contractual in nature and upon admission to the School, the Student is deemed to have agreed to bind himself to all rules/regulations promulgated by t he Ministry of Education, Culture and Sports. Furthermore, he agrees that he may be required to withdraw from the School at any time for reasons deemed sufficiently serious by the School Administration. As previously stated, in violation of aforesaid Rules and Regulations, sore students staged noisy demonstrations in the premises of the school. For the settlement thereof, an agreement was reached providing among otliers the regulations for the conduct of protest actions. Despite said agreement, it was alleged that petitioners, acting as the core group of a noisy minoritv, committed tumultuous and anarchic acts within the premises of the school, fanned by the cooperation of the intervening teachers, causing disruption of classes to the prejudice of the majority of the students including the intervening ones; which acts now constitute the subject of this controversy (Rollo, p. 217 ). Accordingly, both students and teachers were given three (3) days from receipts of letter to explain in writing why the school should not take / mete out any administrative sanction on them in view of their participation in the commission of tumultuous and anarchic acts on the dates stated. Respondents alleged that none of the students ever filed a reply thereto. The records show however that a letter was sent by Atty. Alan Rollo Yap, in behalf of all PSBA students to the President of the School Mr. Juan D. Lim, explaining why said students are not guilty of the charges filed against them (Rollo, pp- 26-28). Similarly, a faculty member of the PSBA filed as answer in a letter to the same President of the school, where he denied the charges against him (Rollo, p. 52). It therefore becomes readily apparent that while the students and the teachers have been informed in writing of the charges filed against them and they in turn filed their answers thereto, no investigating committee or official was designated by the school authorities to hear and decide the case upon the presentation of evidence of both parties. Presumably, the schools banking on the theory that the contracts have already expired, said procedural steps are no longer necessary. At any rate, this Court obviously to insure that full justice is done both to the students and teachers on the one hand and the school on the other, ordered an investigation to be conducted by the school authorities, in the resolution of November 12, 1986. The investigating committee found among others that: there were concerted mass assemblies conducted on October 2, 3, 7 and 8 at PSBA Quezon City, which were participated in by said students and teachers, and which disrupted classes. The disruption of classes and the barricades in the school entrances constitute violations of existing MECS and PSBA rules and regulations (Rollo, pp. 348-349). It is ironic that many of those who claim that their human rights have been violated are the very ones who emasculate the human rights of the innocent majority. Moreover, petitioners named in the report were found to be academically deficient (Rollo, p. 273) while the intervening teachers apart from participating in acts of illegality against the school were found to have committed various acts of misconduct (Rollo. p. 275). Accordingly, three students were recommended for exoneration from all charges, and some to be honorably dismissed. Of the faculty members eight were recommended to be exonerated of all charges, two to be reprimanded, one for non-renewal of his semester to semester appointment and two to be terminated (Rollo, pp. 359-360). The right of the school to refuse re-enrollment of students for academic delinquency and violation of disciplinary regulations has always been recognized by this Court (Tangonan vs. Paflo, 137 SCRA 246 [1985]; Ateneo de Manila University vs. CA, 145 SCRA 100 [1986]). Thus, the Court has ruled that the school's refusal is sanctioned by law. Sec. 107 of the Manual of Regulations for Private Schools considers academic delinquency and violation of disciplinary regulations vs as valid grounds for refusing re-enrollment of students. The opposite view would do violence to the academic freedom enjoyed by the school and enshrined under the Constitution. More specifically, academic freedom is defined by the Court as follows: This institutional academic freedom includes not only the freedom of professionally qualified persons to inquire, discover, publish and teach the truth as they see it in the field of their competence subject to no control or authority except of rational methods by which truths and conclusions are sought and established in their disciplines, but also the right of the

school or college to decide for itself, its ms and objectives, and how best to attain them the grant being to institutions of higher learning-free from outside coercion or interference save possibly when the overriding public welfare calls for some restraint. (Tangonan vs. Pao, supra). It is well settled that by reason of their special knowledge and expertise gained from the handling of specific matters falling under their respective jurisdictions, the Court ordinarily accords respect if not finality to factual findings of administrative tribunals, unless the factual findings are not supported by evidence; where the findings are vitiated by fraud, imposition or collusion; where the procedure which led to the factual findings is irregular; when palpable errors are committed; or when a grave abuse of discretion, arbitrariness, or capriciousness is manifest. (Ateneo de Manila University vs. Court of Appeals, 145 SCRA 106 (1986); citing: International Hardwood and Veneer Co. of the Philippines vs. Leonardo, 11 7 SCRA 967; Baguio Country Club Corporation vs. National Labor Relations Commission, 118 SCRA 557; Sichangco vs. Commissioner of Immigration, 94 SCRA 61 and Eusebio vs. Sociedad Agricola de Balarin, 16 SCRA 569). A careful scrutiny of the Report and Recommendation of the Special Investigating Committee shows it does not fall under any of the above exceptions. On the contrary, it is readily apparent that the investigation conducted was fair, open, exhaustive and adequate. Accordingly, there appears to be no cogent reason to disturb the finding of said committee and as manifested by the respondents, the report of said committee has virtually rendered this petition moot and academic. The urgent motion of petitioners and intervenors to cite respondents in contempt of court is likewise untenable. Contempt of court has been defined as a defiance of the authority, justice or dignity of the court; such conduct as tends to bring the authority and administration of the law into disrespect or to interfere with or prejudice parties litigant or their witnesses during litigation. (Hahn vs. Court of Industrial Relations, 136 SCRA 57 [1985]). In the case at bar, there appears to be no defiance of authority by the mere filing by respondents of a motion for reconsideration of the resolution of November 12, 1986. In fact respondent school explained that the intervenors were actually reinstated as such faculty members after the issuance of the temporary mandatory injunction. Thus, in the compliance submitted by said school on November 20, 1 986, it ma manifested that 'without prejudice to the investigation to be conducted by the school authorities, ... and in order that dislocations may not result with respect to the academic activities of the students and the distribution of teaching loads among the teachers, the respondent school has created new classes for the petitioners and the intervening teachers" beginning November 20, 1986. The school manifested that while the investigation was going on, the intervenors-faculty members were teaching and it was only after the investigation, that the recommendations of the Committee were adopted by the school and the latter moved for the dismissal of the case for having become moot and academic. Otherwise stated, respondent school has fully complied with its duties under the temporary mandatory injunction (Rollo, pp. 830- 832). PREMISES CONSIDERED, the petition is hereby DISMISSED, but in the light of compassionate equity, students Who were, in view of the absence of academic deficiencies, scheduled to graduate during the school year when this petition was filed, should be allowed to re-enroll and to graduate in due time. No pronouncement as to costs. SO ORDERED.

III. G.R. No. 89317 May 20, 1990 ARIEL NON, REX MAGANA, ALVIN AGURA, NORMANDY OCCIANO, JORGE DAYAON, LOURDES BANARES, BARTOLOME IBASCO, EMMANUEL BARBA, SONNY MORENO, GIOVANI PALMA, JOSELITO VILLALON, LUIS SANTOS, and DANIEL TORRES, petitioners, vs. HON. SANCHO DANES II, in his capacity as the Presiding Judge of 5th Regional Trial Court, Br. 38, Daet, Camarines Norte; and MABINI COLLEGES, INC., represented by its president ROMULO ADEVA and by the chairman of the Board of Trustees, JUSTO LUKBAN, respondents. Antonio A. Ayo Jr. and Soliman M. Santos, Jr., for petitioners Pedro A. Venida Agustin A. Ferrer and Gil F. Echaro for private respondents. CORTES, J.:

Petitioners urge the Court en banc to review and reverse the doctrine laid down in Alcuaz, et al. v. Philippine School of Business Administration, et al., G.R. No. 76353, May 2, 1988, 161 SCRA 7, to the effect that a college student, once admitted by the school, is considered enrolled only for one semester and, hence, may be refused readmission after the semester is over, as the contract between the student and the school is deemed terminated. Petitioners, students in private respondent Mabini Colleges, Inc. in Daet, Camarines Norte, were not allowed to re-enroll by the school for the academic year 1988-1989 for leading or participating in student mass actions against the school in the preceding semester. The subject of the protests is not, however, made clear in the pleadings. Petitioners filed a petition in the court a quo seeking their readmission or re-enrollment to the school, but the trial court dismissed the petition in an order dated August 8, 1988; the dispositive portion of which reads: WHEREFORE, premises considered, and the fact that the ruling in the Alcuaz vs. PSBA is exactly on the point at issue in this case but the authority of the school regarding admission of students, save as a matter of compassionate equity when any of the petitioners would, at the least, qualify for re-enrollment, this petition is hereby DISMISSED. SO ORDERED. [Rollo, p. 12-A.] A motion for reconsideration was filed, but this was denied by the trial court on February 24, 1989 in this wise: Perhaps many will agree with the critical comment of Joaquin G. Bernas S.J., and that really there must be a better way of treating students and teachers than the manner ruled (not suggested) by the Supreme Court, the Termination of Contract at the end of the semester, that is. But applicable rule in the case is that enunciated by the Supreme Court in the case of Sophia Alcuaz, et al. vs. Philippine School of Business Administration, Quezon City Branch (PSBA), et al., G.R. No. 76353, May 2, 1988; that of the termination at the end of the semester, reason for the critical comments of Joaquin G. Bernas and Doods Santos, who both do not agree with the ruling. Petitioners' claim of lack of due process cannot prosper in view of their failure to specifically deny respondent's affirmative defenses that "they were given all the chances to air their grievances on February 9, 10, 16, and 18, 1988, and also on February 22, 1988 during which they were represented by Atty. Jose L. Lapak" and that on February 22, 1988, the date of the resumption of classes at Mabini College, petitioners continued their rally picketing, even though without any renewal permit, physically coercing students not to attend their classes, thereby disrupting the scheduled classes and depriving a great majority of students of their right to be present in their classes. Against this backdrop, it must be noted that the petitioners waived their privilege to be admitted for re-enrollment with respondent college when they adopted, signed, and used its enrollment form for the first semester of school year 1988-89. Said form specifically states that: The Mabini College reserves the right to deny admission of students whose scholarship and attendance are unsatisfactory and to require withdrawal of students whose conduct discredits the institution and/or whose activities unduly disrupts or interfere with the efficient operation of the college. Students, therefore, are required to behave in accord with the Mabini College code of conduct and discipline. In addition, for the same semester, petitioners duly signed pledges which among others uniformly reads: In consideration of my admission to the Mabini College and of my privileges as student of this institution, I hereby pledge/ promise under oath to abide and comply with all the rules and regulations laid down by competent authorities in the College Department or School in which I am enrolled. Specifically: xxx xxx xxx 3. I will respect my Alma Matter the Mabini College, which I represent and see to it that I conduct myself in such a manner that the college wig not be put to a bad light; xxx xxx xxx 9. I will not release false or unauthorized announcement which tend to cause confusion or disrupt the normal appreciation of the college. Moreover, a clear legal right must first be established for a petition for mandamus to prosper (Sec. 3, Rule 65). It being a mere privilege and not a legal right for a student to be enrolled or reenrolled, respondent Mabini College is free to admit or not admit the petitioners for re-enrollment in view of the academic freedom enjoyed by the school in accordance with the Supreme Court rulings in the cases of Garcia vs. Faculty [Admission Committee] (G.R. No. 40779, November 28, 1975) andTangonon vs. Pano, et al. (L-45157, June 27, 1985). WHEREFORE, premises and jurisprudence considered, and for lack of merit, the motion for reconsideration of the order of this Court dated August 8, 1988 is hereby DENIED.

SO ORDERED. [Rollo pp. 15-16.] Hence, petitioners filed the instant petition for certiorari with prayer for preliminary mandatory injunction. The case was originally assigned to the Second Division of the Court, which resolved on April 10, 1989 to refer the case to the Court of Appeals for proper determination and disposition. The Court of Appeals ordered respondents to comment on the petition and set the application for issuance of a writ of preliminary mandatory injunction for hearing. After considering the comment and hearing the injunction application, the Court of Appeals resolved on May 22, 1989 to certify the case back to the Supreme Court considering that only pure questions of law were raised. The case was assigned to the Third Division of the Court, which then transferred it to the Court en banc on August 21, 1989 considering that the issues raised are jurisdictional. On September 14, 1989, the Court en bancaccepted the case and required respondents to comment. Respondents filed their comment on November 13, 1989. Petitioners were required to reply. As reply, they filed a pleading entitled "Counter-Comment," to which respondents filed a rejoinder entitled "Reply to Counter-Comment To this petitioners filed a "Rejoinder to Reply." The issues having been joined, the case was deemed submitted. At the heart of the controversy is the doctrine encapsuled in the following excerpt from Alcuaz: It is beyond dispute that a student once admitted by the school is considered enrolled for one semester. It is provided in Paragraph 137 Manual of Regulations for Private Schools, that when a college student registers in a school, it is understood that he is enrolling for the entire semester. Likewise, it is provided in the Manual, that the "written contracts" required for college teachers are for "one semester." It is thus evident that after the close of the first semester, the PSBA-QC no longer has any existing contract either with the students or with the intervening teachers . Such being the case, the charge of denial of due process is untenable. It is a time-honored principle that contracts are respected as the law between the contracting parties (Henson vs. Intermediate Appellate Court, et al., G.R. No. 72456, February 19, 1987, citing: Castro vs. Court of Appeals, 99 SCRA 722; Escano vs. Court of Appeals, 100 SCRA 197). The contract having been terminated, there is no more contract to speak of. The school cannot be compelled to enter into another contract with said students and teachers. "The courts, be they the original trial court or the appellate court, have no power to make contracts for the parties.' (Henson vs. Intermediate Appellate Court, et al., supra). [At 161 SCRA 17-18; Emphasis supplied.] In Alcuaz, the Second Division of the Court dismissed the petition filed by the students, who were barred from re-enrolling after they led mass assemblies and put up barricades, but it added that "in the light of compassionate equity, students who were, in view of the absence of academic deficiencies, scheduled to graduate during the school year when this petition was filed, should be allowed to re-enroll and to graduate in due time." [At 161 SCRA 22.] Mr. Justice Sarmiento dissented from the majority opinion. A motion for reconsideration was filed by the dismissed teachers in Alcuaz. The students did not move for reconsideration. The Court en banc, to which the case had been transferred, denied the motion for reconsideration in a Resolution dated September 29, 1989, but added as an obiter dictum: In conclusion, We wish to reiterate that while We value the right of students to complete their education in the school or university of their choice, and while We fully respect their right to resort to rallies and demonstrations for the redress of their grievances and as part of their freedom of speech and their right to assemble, still such rallies, demonstrations, and assemblies must always be conducted peacefully, and without resort to intimidation, coercion, or violence. Academic freedom in all its forms, demands the full display of discipline. To hold otherwise would be to subvert freedom into degenerate license. The majority's failure to expressly repudiate the "termination of contract" doctrine enunciated in the decision provoked several dissents on that issue. Although seven (7) members of the Court * disagreed with the Second Division's dismissal of the students petition, a definitive ruling on the issue could not have been made because no timely motion for reconsideration was filed by the students. (As stated above, the motion for reconsideration was filed by the dismissed teachers.) Be that as it may, the reassessment of the doctrine laid down in Alcuaz, insofar as it allowed schools to bar the readmission or re-enrollment of students on the ground of termination of contract, shall be made in this case where the issue is squarely raised by petitioners [Petition, p. 4; Rollo, p. 5]. Initially, the case at bar must be put in the proper perspective. This is not a simple case of a school refusing readmission or re-enrollment of returning students. Undisputed is the fact that the refusal to readmit or re-enroll petitioners was decided upon and implemented by school authorities as a reaction to student mass actions directed against the school. Petitioners

are students of respondent school who, after leading and participating in student protests, were denied readmission or reenrollment for the next semester. This is a case that focuses on the right to speech and assembly as exercised by students vis-a-vis the right of school officials to discipline them. Thus, although respondent judge believed himself bound by the ruling in Alcuaz [Order dated August 8, 1988;Rollo, pp. 1212-A], he actually viewed the issue as a conflict between students' rights and the school's power to discipline them, to wit: Students should not be denied their constitutional and statutory right to education, and there is such denial when students are expelled or barred from enrollment for the exercise of their right to free speech and peaceable assembly and/or subjected to disciplinary action without abiding with the requirements of due process. Also, it is understandable for student leaders to let loose extremely critical and, at times, vitriolic language against school authorities during a student rally. But the right of students is no license and not without limit . . . [Order of February 24, 1989; Rollo, p. 13.] 1. The Student Does Not Shed His Constitutionally Protected Rights at the Schoolgate . Central to the democratic tradition which we cherish is the recognition and protection of the rights of free speech and assembly. Thus, our Constitution provides: Sec. 4. No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people peaceably to assemble and petition the government for redress of grievances. [Art. III.] This guarantee is not peculiar to the 1987 Constitution. A similar provision was found in the 1973 Constitution, as amended [Art. VI, sec. 9], the 1935 Constitution, as amended [Art. III, sec. 81, the Philippine Autonomy Act (Jones Law) [Sec. 3, para. 13], and the Philippine Bill of 1902 [Sec. 15, para. 13]. Thus, as early as 1907, the Court in People v. Apurado, 7 Phil. 422, upheld the right to speech and assembly to overturn a conviction for sedition. It said: Section 5 of the Act No. 292 is as follows: All persons who rise publicly and tumultuously in order to attain by force or outside of legal methods any of the following objects are guilty of sedition: xxx xxx xxx 2. To prevent the Insular Government, or any provincial or municipal government or any public official, from freely exercising its or his duties or the due execution of any judicial or administrative order. But this law must not be interpreted so as to abridge "the freedom of speech" or "the right of the people peaceably to assemble and petition the Government for redress of grievances" guaranteed by the express provisions of section 5 of "the Philippine Bill." xxx xxx xxx It is rather to be expected that more or less disorder will mark the public assembly of the people to protest against grievances whether real or imaginary, because on such occasions feeling is always wrought to a high pitch of excitement, and the greater the grievance and the more intense the feeling, the less perfect, as a rule, will be the disciplinary control of the leaders over their irresponsible followers. But if the prosecution be permitted to seize upon every instance of such disorderly conduct by individual members of a crowd as an excuse to characterize the assembly as a seditious and tumultuous rising against the authorities, then the right to assemble and to petition for redress of grievances would become a delusion and a snare and the attempt to exercise it on the most righteous occasion and in the most peaceable manner would expose all those who took part therein to the severest and most unmerited punishment, if the purposes which they sought to attain did not happen to be pleasing to the prosecuting authorities. If instances of disorderly conduct occur on such occasions, the guilty individuals should be sought out and punished therefor, but the utmost discretion must be exercise in drawing the line between disorderly and seditious conduct and between an essentially peaceable assembly and a tumultuous uprising. [At pp. 424, 426.] That the protection to the cognate rights of speech and assembly guaranteed by the Constitution is similarly available to students is well-settled in our jurisdiction. In the leading case of Malabanan v. Ramento, G.R. No. 62270, May 21, 1984, 129 SCRA 359, the Court, speaking through Mr. Chief Justice Fernando in an en bancdecision, declared: xxx xxx xxx 4. Petitioners invoke their rights to peaceable assembly and free speech. They are entitled to do so. They enjoy like the rest of the citizens the freedom to express their views and communicate their thoughts to those disposed to listen in gatherings such as was held in this case. They do not, to borrow from the opinion of Justice Fortas in Tinker v. Des Moines Community School District, "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate."

While therefore, the authority of educational institutions over the conduct of students must be recognized, it cannot go so far as to be violative of constitutional safeguards. [At pp. 367-368.] The facts in Malabanan are only too familiar in the genre of cases involving student mass actions: . . . Petitioners were officers of the Supreme Student Council of respondent [Gregorio Araneta] University. They sought and were granted by the school authorities a permit to hold a meeting from 8:00 A.M. to 12:00 P.M. on August 27, 1982. Pursuant to such permit, along with other students, they held a general assembly at the Veterinary Medicine and Animal Science (VMAS) the place indicated in such permit, not in the basketball court as therein stated but at the respond floor lobby. At such gathering they manifested in vehement and vigorous language their opposition to the proposed merger of the Institute of Animal Science with the Institute of Agriculture. At 10:30 A.M., the same day, they marched toward the Life Science building and continued their rally. It was outside the area covered by their permit. They continued their demonstration, giving utterance to language severely critical of the University authorities and using megaphones in the process. There was, as a result, disturbance of the classes being held. Also, the non-academic employees, within hearing distance, stopped their work because of the noise created. They were asked to explain on the same day why they should not be held liable for holding an illegal assembly. Then on September 9, 1982, they were informed through a memorandum that they were under preventive suspension for their failure to explain the holding of an illegal assembly in front of the Life Science Building. The validity thereof was challenged by petitioners both before the Court of First Instance of Rizal in a petition for mandamus with damages against private respondents and before the Ministry of Education, Culture, and Sports. On October 20, 1982, respondent Ramento, as Director of the National Capital Region, found petitioners guilty of the charge of having violated par. 146(c) of the Manual for Private Schools more specifically their holding of an illegal assembly which was characterized by the violation of the permit granted resulting in the disturbance of classes and oral defamation. The penalty was suspension for one academic year. . . . [At pp. 363-364.] The Court found the penalty imposed on the students too severe and reduced it to a one-week suspension. The rule laid down in Malabanan was applied with equal force in three other en banc decisions of the Court. In Villar v. Technological Institute of the Philippines, G.R. No. 69198, April 17, 1985, 135 SCRA 706, the Court reiterated that the exercise of the freedom of assembly could not be a basis for barring students from enrolling. It enjoined the school and its officials from acts of surveillance, blacklisting, suspension and refusal to re-enroll. But the Court allowed the nonenrollment of students who clearly incurred marked academic deficiency, with the following caveat: xxx xxx xxx 4. The academic freedom enjoyed by ''institutions of higher learning" includes the right to set academic standards to determine under what circumstances failing grades suffice for the expulsion of students. Once it has done so, however, that standard should be followed meticulously. It cannot be utilized to discriminate against those students who exercise their constitutional rights to peaceable assembly and free speech. If it does so, then there is a legitimate grievance by the students thus prejudiced, their right to the equal protection clause being disregarded. [At p. 711.] In Arreza v. Gregorio Araneta University Foundation, G.R. No. 62297, June 19, 1985, 137 SCRA 94, a case arising from almost the same facts as those in Malabanan, the Court rejected "the infliction of the highly- disproportionate penalty of denial of enrollment and the consequent failure of senior students to graduate, if in the exercise of the cognate rights of free speech and peaceable assembly, improper conduct could be attributed to them. [At p. 98]. In Guzman v. National University, G.R. No. 68288, July 11, 1986, 142 SCRA 699, respondent school was directed to allow the petitioning students to re-enroll or otherwise continue with their respective courses, without prejudice to any disciplinary proceedings that may be conducted in connection with their participation in the protests that led to the stoppage of classes. 2. Permissible Limitations on Student Exercise of Constitutional Rights Within the School . While the highest regard must be afforded the exercise of the rights to free speech and assembly, this should not be taken to mean that school authorities are virtually powerless to discipline students. This was made clear by the Court in Malabanan, when it echoed Tinker v. Des Moines Community School District, 393 US 503, 514: "But conduct by the student, in class or out of it, which for any reason whether it stems from time, place, or type of behavior materially disrupts classwork or involves substantial disorder or invasion of the rights of others is, of course, not immunized by the constitutional guarantee of freedom of speech." Thus, in Malabanan, the Court said: xxx xxx xxx

8. It does not follow, however, that petitioners can be totally absolved for the events that transpired. Admittedly, there was a violation of the terms of the permit. The rally was held at a place other than that specified, in the second floor lobby, rather than the basketball court, of the (VMAS) building of the University. Moreover, it was continued longer than the period allowed. According to the decision of respondent Ramento, the "concerted activity [referring to such assembly went on until 5:30 p.m." Private respondents could thus, take disciplinary action. . . . [ At pp. 370-371]. But, as stated in Guzman, the imposition of disciplinary sanctions requires observance of procedural due process. Thus: . . . There are withal minimum standards which must be met to satisfy the demands of procedural due process; and these are, that (1) the students must be informed in writing of the nature and cause of any accusation against them; (2) they shall have the right to answer the charges against them, with the assistance of counsel, if desired; (3) they shall be informed of the evidence against them; (4) they shall have the right to adduce evidence in their own behalf; and (5) the evidence must be duly considered by the investigating committee or official designated by the school authorities to hear and decide the case. [At pp. 706-707]. Moreover, the penalty imposed must be proportionate to the offense committed. As stated in Malabanan, "[i]f the concept of proportionality between the offense committed and sanction imposed is not followed, an element of arbitrariness intrudes." [At p. 371]. 3. Circumventing Established Doctrine . Malabanan was decided by the Court in 1984. Since then, student mass actions have escalated not only because of political events that unfurled but also because of the constantly raging controversy over increases in tuition fees. But the over-eager hands of some school authorities were not effectively tied down by the ruling in Malabanan. Instead of suspending or expelling student leaders who fell into disfavor with school authorities, a new variation of the same stratagem was adopted by the latter: refusing the students readmission or re-enrollment on grounds not related to, their alleged misconduct of "illegal assembly" in leading or participating in student mass actions directed against the school. Thus, the spate of expulsions or exclusions due to "academic deficiency." 4. The Nature of the Contract Between a School and its Student . The Court, in Alcuaz, anchored its decision on the "termination of contract" theory. But it must be repeatedly emphasized that the contract between the school and the student is not an ordinary contract. It is imbued with public interest, considering the high priority given by the Constitution to education and the grant to the State of supervisory and regulatory powers over all educational institutions [See Art. XIV, secs. 1-2, 4(1)]. Respondent school cannot justify its actions by relying on Paragraph 137 of the Manual of Regulations for Private Schools, which provides that "[w]hen a student registers in a school, it is understood that he is enrolling . . . for the entire semester for collegiate courses," which the Court in Alcuaz construed as authority for schools to refuse enrollment to a student on the ground that his contract, which has a term of one semester, has already expired. The "termination of contract" theory does not even find support in the Manual. Paragraph 137 merely clarifies that a college student enrolls for the entire semester. It serves to protect schools wherein tuition fees are collected and paid on an installment basis, i.e. collection and payment of the downpayment upon enrollment and the balance before examinations. Thus, even if a student does not complete the semester for which he was enrolled, but has stayed on for more than two weeks, he may be required to pay his tuition fees for the whole semester before he is given his credentials for transfer. This is the import of Paragraph 137, subsumed under Section VII on Tuition and Other Fees, which in its totality provides: 137. When a student registers in a school, it is understood that he is enrolling for the entire school year for elementary and secondary courses, and for the entire semester for collegiate courses. A student who transfers or otherwise withdraws, in writing, within two weeks after the beginning of classes and who has already paid the pertinent tuition and other school fees in full or for any length of time longer than one month may be charged ten per cent of the total amount due for the term if he withdraws within the first week of classes, or twenty per cent if within the second week of classes, regardless of whether or not he has actually attended classes. The student may be charged all the school fees in full if he withdraws anytime after the second week of classes. However, if the transfer or withdrawal is due to a justifiable reason, the student shall be charged the pertinent fees only up to and including the last month of attendance. Clearly, in no way may Paragraph 137 be construed to mean that the student shall be enrolled for only one semester, and that after that semester is over his re-enrollment is dependent solely on the sound discretion of the school. On the contrary, the Manual recognizes the right of the student to be enrolled in his course for the entire period he is expected to complete it. Thus, Paragraph 107 states:

Every student has the right to enrol in any school, college or university upon meeting its specific requirement and reasonable regulation: Provided, that except in the case of academic delinquency and violation of disciplinary regulation, the student is presumed to be qualified for enrolment for the entire period he is expected to complete his course without prejudice to his right to transfer. This "presumption" has been translated into a right in Batas Pambansa Blg. 232, the "Education Act of 1982." Section 9 of this act provides: Sec. 9. Rights of Students in School. In addition to other rights, and subject to the limitations prescribed by law and regulations, students and pupils in all schools shall enjoy the following rights: xxx xxx xxx 2. The right to freely choose their field of study subject to existing curricula and to continue their course therein up to graduation, except in cases of academic deficiency, or violation of disciplinary regulations. xxx xxx xxx 5. Academic Freedom Not a Ground for Denying Students' Rights . Respondent judge, in his order dated February 24, 1989, stated that "respondent Mabini College is free to admit or not admit the petitioners for re-enrollment in view of the academic freedom enjoyed by the school" [ Rollo, p. 16]. To support this conclusion, he cited the cases of Garcia v. The Faculty Admission Committee, Loyola School of Theology , G.R. No. L40779, November 28, 1975, 68 SCRA 277, and Tangonan v. Pano, G.R. No. L-45157, June 27, 1985, 137 SCRA 245, where the Court emphasized the institutions' discretion on the admission and enrollment of students as a major component of the academic freedom guaranteed to institutions of higher learning. These cases involve different facts and issues. In Garcia, the issue was whether a female lay student has a clear legal right to compel a seminary for the priesthood to admit her for theological studies leading to a degree. In Tangonan, the issue was whether a nursing student, who was admitted on probation and who has failed in her nursing subjects, may compel her school to readmit her for enrollment. Moreover, respondent judge loses sight of the Court's unequivocal statement in Villar that the right of an institution of higher learning to set academic standards cannot be utilized to discriminate against students who exercise their constitutional rights to speech and assembly, for otherwise there win be a violation of their right to equal protection [At p. 711] 6. Capitol Medical Center and Licup. In support of the action taken by respondent judge, private respondents cite the recent cases of Capitol Medical Center, Inc. v. Court of Appeals, G.R. No. 82499, October 13, 1989, and Licup v. University of San Carlos, G.R. No. 85839, October 19, 1989, both decided by the First Division of the Court. We find the issues raised and resolved in these two decisions dissimilar from the issues in the present case. In Capitol Medical Center, the Court upheld the decision of the school authorities to close down the school because of problems emanating from a labor dispute between the school and its faculty. The Court ruled that the students had no clear legal right to demand the reopening of the school. On the other hand, in Licup the issue resolved was whether or not the students were afforded procedural due process before disciplinary action was taken against them. Thus, the Court stated: The Court finds no cogent basis for the protestations of petitioners that they were deprived of due process of law and that the investigation conducted was far from impartial and fair. On the contrary, what appear from the record is that the charges against petitioners were adequately established in an appropriate investigation. The imputation of bias and partiality is not supported by the record. . . . Moreover, Licup, far from adopting the "termination of contract" theory in Alcuaz, impliedly rejected it, to wit: While it is true that the students are entitled to the right to pursue their education, the USC as an educational institution is also entitled to pursue its academic freedom and in the process has the concommitant right to see to it that this freedom is not jeopardized. True, an institution of learning has a contractual obligation to afford its students a fair opportunity to complete the course they seek to pursue. However, when a student commits a serious breach of discipline or fails to maintain the required academic standard, he forfeits his contractual right; and the court should not review the discretion of university authorities. (Emphasis supplied.) 7. The Instant Case.

To justify the school's action, respondents, in their Comment dated November 12, 1989, quoting from their answer filed in the trial court, allege that of the thirteen (13) petitioners eight (8) have incurred failing grades, to wit: a) Ariel Non has not only failed in four (4) subjects but also failed to cause the submission of Form 137 which is a prerequisite to his re- enrollment and to his continuing as a student of Mabini; b) Rex Magana not only has failed in one (1) subject but also has incomplete grades in four (4) subjects as well as no grades in two (2) subjects; c) Elvin Agura failed in two (2) subjects and has three (3) incomplete grades; d) Emmanuel Barba has failed in one (1) subject, and has to still take CMT 1 1 to 22. He is already enrolled at Ago Foundation; e) Joselito Villalon has incomplete grades in nine (9) subjects; f) Luis Santos has failed in one (1) subject; g) George Dayaon has failed in four (4) subjects and has to remove the incomplete grade in one (1) subject; h) Daniel Torres has failed in five (5) subjects, has to remove incomplete grades in five (5) more objects and has no grade in one (1) subject. [Rollo, p. 79.] Petitioners have not denied this, but have countered this allegation as follows: xxx xxx xxx (11) Petitioners were and are prepared to show, among others, that: a) Three of the 13 of them were graduating. (Admitted in the Answer.) b) Their academic deficiencies, if any, do not warrant non- readmission. (The Answer indicates only 8 of the 13 as with deficiencies.) c) Their breach of discipline, if any, was not serious. d) The improper conduct attributed to them was during the exercise of the cognate rights of free speech and peaceable assembly, particularly a February 1988 student rally. (The crux of the matter, as shown even in the Answer.) e) There was no due investigation that could serve as basis for disciplinary action. (In effect, admitted in the Answer; even Alcuaz required due process.) f) Respondents admit students with worse deficiencies a clear case of discrimination against petitioners for their role in the student rally. (An equal protection question.) g) Respondent school is their choice institution near their places of residence which they can afford to pay for tertiary education, of which they have already lost one-and-a-half school-years in itself punishment enough. [ Rollo, p. 86]. Clearly, the five (5) students who did not incur failing marks, namely, Normandy Occiano, Lourdes Banares, Bartolome Ibasco, Sonny Moreno and Giovani Palma, were refused re-enrollment without just cause and, hence, should be allowed to re-enroll. On the other hand, it does not appear that the petitioners were afforded due process, in the manner expressed inGuzman, before they were refused re-enrollment. In fact, it would appear from the pleadings that the decision to refuse them re-enrollment because of failing grades was a mere afterthought. It is not denied that what incurred the ire of the school authorities was the student mass actions conducted in February 1988 and which were led and/or participated in by petitioners. Certainly, excluding students because of failing grades when the cause for the action taken against them undeniably related to possible breaches of discipline not only is a denial of due process but also constitutes a violation of the basic tenets of fair play. Moreover, of the eight (8) students with failing grades, some have only one or two failures, namely, Rex Magana, Elvin Agura, Emmanuel Barba, and Luis Santos. Certainly, their failures cannot be considered marked academic deficiency within the context of the Court's decision in Villar. Then, as to the students who incurred several failing grades, namely, Ariel Non, Joselito Villalon, George (Jorge) Dayaon, and Daniel Torres, it is not clear from respondents' enumeration whether the failures were incurred in only one semester or through the course of several semesters of study in the school. Neither are the academic standards of respondent school, from which we can gauge whether or not these students are academically deficient, alleged by respondents. Thus, while the prerogative of schools to set academic standards is recognized, we cannot affirm respondent school's action as to petitioners Non, Villalon, Dayaon and Torres because of insufficient information. With regard to petitioner Emmanuel Barba who respondents claim has enrolled in Ago Foundation, such fact alone, if true, will not bar him from seeking readmission in respondent school.

However, these should not be taken to mean that no disciplinary action could have been taken against petitioners for breach of discipline if the facts had so warranted. In line with the Court's ruling in Malabanan, petitioners could have been subjected to disciplinary proceedings in connection with the February 1988 mass actions. But the penalty that could have been imposed must be commensurate to the offense committed and, as set forth in Guzman, it must be imposed only after the requirements of procedural due process have been complied with. This is explicit from the Manual of Regulations for Private Schools, which provides in Paragraph 145 that "[n]o penalty shall be imposed upon any student, except for cause as defined in this Manual and/or in the school's rules and regulations duly promulgated and only after due investigation shall have been conducted." But this matter of disciplinary proceedings and the imposition of administrative sanctions have become moot and academic. Petitioners, who have been refused readmission or re-enrollment and who have been effectively excluded from respondent school for four (4) semesters, have already been more than sufficiently penalized for any breach of discipline they might have committed when they led and participated in the mass actions that, according to respondents, resulted in the disruption of classes. To still subject them to disciplinary proceedings would serve no useful purpose and would only further aggravate the strained relations between petitioners and the officials of respondent school which necessarily resulted from the heated legal battle here, in the Court of Appeals and before the trial court. WHEREFORE, the petition is GRANTED. The orders of respondent judge dated August 8, 1988 and February 24, 1989 are hereby ANNULLED. Respondent Mabini College is ORDERED to readmit and to allow the re- enrollment of petitioners, if they are still so minded, without prejudice to its taking the appropriate action as to petitioners Ariel Non, Joselito Villalon, George (Jorge) Dayaon and Daniel Torres, if it is shown by their records (Form 137) that they have failed to satisfy the school's prescribed academic standards. SO ORDERED. Article 33 CIVIL LIABILITY FOR DEFAMATION, FRAUD and PHYSICAL INJURIES [G.R. No. 150256. March 25, 2004] CATALINO P. ARAFILES, petitioner, vs. PHILIPPINE JOURNALISTS, INC., ROMY MORALES, MAX BUAN, JR., and MANUEL C. VILLAREAL, JR., respondents. DECISION CARPIO-MORALES, J.: Petitioner, Catalino P. Arafiles, seeks a review of the July 31, 2001 Decision [1] of the Court of Appeals dismissing his complaint for damages against respondents Philippine Journalists, Inc., Romy Morales, Max Buan, Jr., and Manuel C. Villareal, Jr. About 2 a.m. on April 14, 1987, while respondent Morales, a reporter of Peoples Journal Tonight, was at the Western Police District (WPD) Headquarters along United Nations Avenue, Manila, Emelita Despuig (Emelita), an employee of the National Institute of Atmospheric Sciences (NIAS), lodged a complaint against petitioner, a NIAS director, for forcible abduction with rape and forcible abduction with attempted rape before the then on duty Patrolman Benito Chio at the General Assignments Section of the headquarters. [2] In the presence of Morales, Emelita executed a sworn statement [3] narrating the events surrounding the reported offenses committed against her by petitioner. The pertinent portions of her sworn statement are reproduced hereunder: T: A: T: A: T: S: T: S Ano ang dahilan at ikaw ay naririto ngayon sa aming tanggapan at nagbibigay ng isang malaya at kusang loob na Para po magsuplong, tungkol sa karumaldumal naginawa sa akin ni Director Catalino P. Arafiles ng PAG-ASA. Kailan at saan ito nangyari? Noong hong March 14, 1987, diyan ho sa Plaza Miranda ako sapilitan isinakay sa kotse niya at itinuloy sa Flamingo Kailan naman ang sumunod na pagtatangka sa puri mo si Direktor Arafiles? Kagabi ho. Bandang alas 9:00 ng gabi. Sa ikaliliwanag ng pagsisiyasat na ito maari bang isalaysay mo sa akin sa isang maikling talata kung paano nangyari Kagagaling ko lang po sa aking klase sa Feati University noong March 14, 1987, bandang alas 5:45 ng hapon, salaysay?

hotel bandang alas pagitan ng 5:30 at 6:00 ng hapon.

ang ipinagsusumbong mong ito? humigit kumulang, habang ako ay naghihintay ng sasakyan pauwi mula sa Plaza Miranda ng may tumigil sa sasakyan sa tabi ko, at bigla na lang po akong hinaltak ni Direktor Arafiles papasok sa loob ng kotse niya at may ipina-amoy sa akin na nasa tissue na kulay yellow at bigla na lamang akong naghina at nahilo. Sabay din ho sa pagpapa-amoy niya sa akin ang

pagtutok niya sa akin ng isang kutsilyo, at sabi sa akin ay huwag daw akong makulit tapos ay pinatakbo na niya ang kotse niya. Pamaya-maya ay nararamdaman kong karga-karga niya ako pa-akyat sa isang hagdanan. Tapos ibinaba ako sa isang kamang naroroon at akoy unti-unti niyang hinuhubaran. Pamaya-maya ho ay pinaghahalikan po niya ako at nararamdaman ko rin ang mga kamay niya sa mga maseselan na parte ng katawan ko, pero wala akong sapat na lakas para pigilin siya o sumigaw man lamang. Nagawa niyang makuha ang aking pagka-babae noong gabing iyon at nararamdaman kong masakit na masakit ang buong katawan ko. Tinakot niya ako na huwag magsumbong sa mga kapatid ko at sa mga maykapangyarihan at kung hindi ay papatayin daw ako at tatanggalin pa sa trabaho at pati mga kapatid ko ay papatayin daw po. Binibigyan ako ng pera pero ayaw kung tanggapin pero pilit niyang inilagay sa bag ko at ng tingnan ko ay P55.00 lang. Pagkatapos ay hinila na niya akong pababa at pilit ding pinasakay sa kotse niya at doon ako pinababa sa isang lugar na maraming dumadaan ng biyaheng Quiapo at sumakay na lamang ako ng jeep pauwi. Kagabi naman po, bandang alas-9:00 ng gabi, sa may kanto ng United Nations Ave. at Taft Ave., Ermita, Mla., habang hinihintay ko ang pinsan ko na umihi lang matapos akong bumili ng gamot ng tumigil na naman sa tapat ko ang kotse ni Director. Bigla na lamang niya akong hinila papasok sa kotse sabay tutok sa akin ng kutsilyo at sabi sa akin ay huwag na raw akong papalag, total ay butas na raw ako. Sa takot ko ay hindi ako nakakibo at itinuloy din ako sa Flamingo hotel. Ng hinuhubaran na niya ako ay bigla na lamang nag-buzzer tapos naka-usap niya yong bellboy na nagsabi sa kanya na may naghahanap daw sa akin o sa amin dalawa na nakakita sa paghaltak niya sa akin. Ng umakyat sa itaas yong bellboy ay nag-usap sila sandali tapos nakita ko pinagbibigyan niya ng pera yong bellboy at yong guwardiya. Tapos ay doon kami bumaba sa likod na sa tingin ko ay fire escape at nakalabas kami ng hotel tapos doon ako ibinaba sa isang lugar na hindi ko rin matandaan kong saan at doon na lang ako kumuha ng taxi at nagpahatid ako sa Pasay City Police ngunit dito rin ako itinuro.
[4]

(Underscoring supplied)

Following the execution by Emelita of her sworn statement, Patrolman Chio made the following entry in the Police Blotter which was perused by Morales: 280 11:00 PM 4/13/87 PAT. BENITO CHIO ON DUTY 2:00 AM 4/14/87 Subject Emelita Despuig y Puaso reported and personally came to this office that she was abducted by a certain Catalino P. Arafiles and alledgely (sic) rape (sic) last March 14, 1987 in a motel in Ermita. The undersigned made a referral to Medico-legal for Physical/Genital Exam. B. Chio. [5] Morales thereupon personally interviewed Emelita for the purpose of reporting the same in the next issue of Peoples Journal Tonight.[6] By his claim, he, after the interview, tried to contact Arafiles at the NIAS office to verify Emelitas story but failed, the office having already closed. [7] Morales then wrote an account about Emelitas complaint and submitted it to his editor. [8] That same day, April 14, 1987, Morales report appeared as headline on Peoples Journal Tonight reading: GOVT EXEC RAPES COED By ROMY MORALES A PRETTY coed, working as a grant-in-aid scholar at a Manila university and as an office worker at a government office in Quezon City, was raped by her boss, a government agency director, last March 15, but afraid to lose her job and of being harmed she chose to keep her ordeal to herself. Last night, the government man, a director of the National Institute of Atmospheric Science, a branch of PAGASA,again abducted the girl after following her around, forcing her into his car and locking her up in a Malate motel. This time, however, the girl was not to be raped as easily as the first time, when the man used chloroform in forcing her into submission. The girl fought like a tigress, alerting roomboys at the Flamingo Motel at corner Carolina and Quirino Ave. Perhaps as a ploy, motel personnel called up the room and told the man some Capcom soldiers were waiting for them outside. The call saved the girl from being raped the second time around. Her abductor immediately left the motel, with the girl in tow, and then dropped her off somewhere in Ermita. When the man had gone, the girl took a taxi and went straight to the Western Police District and filed a complaint. The girl, 20-year-old Emilita Arcillano (not her real name), said she was first raped last March 15 by her boss whom she identified as a certain Director Catalino Arafiles. She recalled that while waiting for a ride at Plaza Miranda, Arafiles alighted from his Volkswagen Beetle, dragged her inside and then pressed a cotton with chloroform on her mouth and nose.

When she regained consciousness she was already inside the Flamingo Motel, already raped, she said. She said Arafiles told her not to report the matter or she would lose her job and she and her family would be harmed. When the act was to be repeated last night, Emilita decided to fight. Nanlaban ako at nagsisigaw at sinabi kong mabuti pang patayin na lang niya ako, Emilita told Pat. Benito Chio of WPD General Assignments Section. She said the suspect abducted her at the corner of Taft Ave. and United Nations Ave. at about 9:15 last night. When Arafiles was told Capcom soldiers were waiting for them outside the Flamingo Motel, he allegedly paid P100 each to four roomboys to help him go out through a side gate. The police will pick up Arafiles for questioning today. [9] (Emphasis and underscoring supplied) About a year following the publication of above-quoted report or on April 13, 1988, petitioner instituted a complaint before the Regional Trial Court of Quezon City against respondents for damages [10] arising therefrom. In his Complaint, docketed as Civil Case No. Q-53399, petitioner alleged that on account of the grossly malicious and overly sensationalized reporting in the news item prepared by respondent Morales, edited by respondent Buan, Jr., allowed for publication by respondent Villareal, Jr. as president of Philippine Journalists, Inc., and published by respondent Philippine Journalists, Inc., aspersions were cast on his character; his reputation as a director of the NIAS at the Philippine Atmospheric, Geophysical and Astronomical Services Administration (PAGASA) was injured; he became the object of public contempt and ridicule as he was depicted as a sex-crazed stalker and serial rapist; and the news item deferred his promotion to the position of Deputy Administrator of PAGASA. In their Answer,[11]respondents prayed for the dismissal of the Complaint, they alleging that the news item, having been sourced from the Police Blotter which is an official public document and bolstered by a personal interview of the victim is therefore privileged and falls within the protective constitutional provision of freedom of the press . . . . , and by way of Compulsory Counterclaim, they prayed for the award of moral and exemplary damages plus attorneys fees. Branch 97 of the Quezon City RTC, noting as follows: [T]he publication stated that a pretty coed was raped by her boss, and not qualifying said statement that it was merely a report, with such phrases as allegedly or reportedly. Furthermore, the article in question continued reporting as if it were fact and truth the alleged abduction of the same girl by her boss, identified as Director of the National Institute of Atmospheric Science. The questioned article did not even hint that it was merely based on interview with the said girl or that it was reflected in the police blotter, and then it would have been fair, for the mind of the reader would be offered the other side to speculate on. As it turned out, the other side, the side of the defamed and libeled had an alibi to prove the story false, aside from his testimony that proved the inherent unnaturalness and untruthfulness of the alleged victim of the alleged rape and abduction,[12] rendered a Decision[13] of August 13, 1992, in favor of petitioner, disposing as follows: In view of the above evidence and the foregoing considerations, this Court hereby renders judgment in favor of plaintiff and against the above-mentioned defendants, and orders the latter to pay jointly and severally to the plaintiff the following amounts: 1.) P1,000,000.00, as nominal damages; 2.) P50,000.00, as exemplary damages; 3.) P1,000.000.00, as moral damages; 4.) P50,000.00, as attorneys fees; and 5.) Costs of suit. SO ORDERED.[14] Respondents motion for reconsideration[15] of the trial courts decision having been denied by Resolution [16] of March 2, 1993, they appealed to the Court of Appeals (CA). Citing Borjal et al. v. Court of Appeals et al.[17] which held that: The doctrine of fair comment means that while in general every discreditable imputation publicly made is deemed false, because every man is presumed innocent until his guilt is judicially proved, and every false imputation is deemed malicious, nevertheless, when the discreditable imputation is directed against a public person in his public capacity, it is not necessarily actionable. In order that such discreditable imputation to a public official may be actionable, it must either be a false allegation of fact or a comment based on a false supposition. If the comment is an expression of opinion, based on established facts, then it is immaterial that the opinion happens to be mistaken, as long as it might be reasonably inferred from the facts.[18] (Underscoring supplied), the CA found that herein petitioner was not able to prove by a preponderance of evidence that [herein respondents] were motivated by a sinister intent to cause harm and injury to [herein petitioner] . . . Accordingly, by Decision of July 31, 2001, the CA reversed and set aside the trial courts decision and dismissed petitioners complaint. [19] Petitioners motion for

reconsideration[20] of the appellate courts decision was denied by Resolution of October 12, 2001, [21] hence, the petition at bar. The petition revolves around the issue of whether the CA erred in holding that the publication of the news item was not attended with malice to thus free respondents of liability for damages. It bears noting that the complaint petitioner instituted is one for damages under Article 33 of the Civil Code which provides: 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, shall require only a preponderance of evidence. Article 33 contemplates a civil action for the recovery of damages that is entirely unrelated to the purely criminal aspect of the case.[22] A civil action for libel under this article shall be instituted and prosecuted to final judgment and proved by preponderance of evidence separately from and entirely independent of the institution, pendency or result of the criminal action because it is governed by the provisions of the New Civil Code and not by the Revised Penal Code governing the criminal offense charged and the civil liability arising therefrom. [23] The pertinent provisions of the Civil Code, those found in the Chapter on Human Relations, namely Articles 19 and 21, provide: Art. 19. Every person must, in the exercise of his rights and in the performance of his duties, act with justice, give everyone his due, and observe honesty and good faith. Art. 21. Any person who willfully causes loss or injury to another in a manner that is contrary to morals, good customs or public policy shall compensate the latter for the damage. In actions for damages for libel, it is axiomatic that the published work alleged to contain libelous material must be examined and viewed as a whole.[24] The article must be construed as an entirety including the headlines, as they may enlarge, explain, or restrict or be enlarged, explained or strengthened or restricted by the context. Whether or not it is libelous, depends upon the scope, spirit and motive of the publication taken in its entirety. x x x A publication claimed to be defamatory must be read and construed in the sense in which the readers to whom it is addressed would ordinarily understand it. So, the whole item, including display lines, should be read and construed together, and its meaning and signification thus determined. In order to ascertain the meaning of a published article, the whole of the article must be considered, each phrase must be construed in the light of the entire publication x x x The headlines of a newspaper must also be read in connection with the language which follows.[25] Petitioner brands the news item as a malicious sensationalization of a patently embellished and salacious narration of fabricated facts involving rape and attempted rape incidents. For, so petitioner argues, the police blotter which was the sole basis for the news item plainly shows that there was only one count of abduction and rape reported by Emelita. The entry made by Patrolman Chio in the police blotter which respondent Morales scrutinized at the WPD headquarters recorded indeed Emelitas complaint about only a case for abduction with rape which occurred on March 14, 1987. In her above-quoted sworn statement, however, earlier given before the same Patrolman Chio in the presence of Morales who subsequently interviewed her, Emelita reported about an abduction with rape incident which occurred on March 14, 1987 and an abduction incident which occurred on April 13, 1987. Petitioners anchoring of his complaint for damages on a charge of malicious sensationalization of fabricated facts thus fails. The presentation of the news item subject of petitioners complaint may have been in a sensational manner, but it is not per se illegal.[26] Respondents could of course have been more circumspect in their choice of words as the headline and first seven paragraphs of the news item give the impression that a certain director of the NIAS actually committed the crimes complained of by Emelita. The succeeding paragraphs (in which petitioner and complainant Emelita were eventually identified) sufficiently convey to the readers, however, that the narration of events was only an account of what Emelita had reported at the police headquarters. In determining the manner in which a given event should be presented as a news item and the importance to be attached thereto, newspapers must enjoy a certain degree of discretion.

Every citizen of course has the right to enjoy a good name and reputation, but we do not consider that the respondents, under the circumstances of this case, had violated said right or abused the freedom of the press. The newspapers should be given such leeway and tolerance as to enable them to courageously and effectively perform their important role in our democracy. In the preparation of stories, press reporters and [editors] usually have to race with their deadlines; and consistently with good faith and reasonable care, they should not be held to account, to a point of suppression, for honest mistakes or imperfection in the choice of words.[27] (Underscoring supplied) In fine, this Court finds that case against respondents has not been sufficiently established by preponderance of evidence. WHEREFORE, the petition is hereby DENIED. SECOND DIVISION [G.R. No. 130362. September 10, 2001] INTERNATIONAL FLAVORS AND FRAGRANCES (PHIL.), INC., petitioner, vs. MERLIN J. ARGOS and JAJA C. PINEDA, respondents. DECISION QUISUMBING, J.: This petition assails the decision of the Court of Appeals dated February 7, 1997, dismissing the petition for certiorari and prohibition filed by herein petitioner as a consequence of the orders by the Regional Trial Court of Pasig, Branch 166, in Civil Case No. 65026 for damages. Petitioner International Flavors and Fragrances (Phils.) Inc., hereafter IFFI, is a corporation organized and existing under Philippine laws. Respondents Merlin J. Argos and Jaja C. Pineda are the general manager and commercial director, respectively, of the Fragrances Division of IFFI. In 1992, the office of managing director was created to head the corporations operation in the Philippines. Hernan H. Costa, a Spaniard, was appointed managing director. Consequently the general managers reported directly to Costa. Costa and respondents had serious differences. When the positions of the general managers became redundant, respondents agreed to the termination of their services. They signed a Release, Waiver and Quitclaim on December 10, 1993. On the same date, Costa issued a Personnel Announcement which described respondents as persona non grata and urged employees not to have further dealings with them. On July 1, 1994, respondents filed a criminal complaint for libel resulting in the filing of two Informations against Costa docketed as Criminal Case Nos. 9917 and 9918 with the Metropolitan Trial Court of Taguig, Metro Manila. On March 31, 1995, respondents filed a civil case for damages filed and docketed as Civil Case No. 65026 at the Regional Trial Court of Pasig, Branch 166, against Costa and IFFI, in its subsidiary capacity as employer. Herein petitioner IFFI moved to dismiss the complaint. On October 23, 1995, the Regional Trial Court granted the motion to dismiss Civil Case No. 65026 for respondents failure to reserve its right to institute a separate civil action. Respondents filed a motion for reconsideration, which the trial court granted in an order dated January 9, 1996. IFFI filed a motion to reconsider said order. This was denied. Hence, IFFI elevated the case to the Court of Appeals, reiterating the same grounds for the dismissal of the civil complaint which it invoked before the court a quo. The appellate court dismissed the petition. The dispositive portion of the Court of Appeals decision reads: All told, the allegations of petitioner that the lower court has gravely abused its discretion amounting to lack of jurisdiction in issuing the orders complained of has not been substantiated. WHEREFORE, the petition is hereby DISMISSED, with costs against petitioner. SO ORDERED.[1] IFFIs motion for reconsideration was denied. Hence, the present petition for review, with petitioner alleging that the Court of Appeals: I ...GRAVELY ERRED IN DISMISSING THE PETITION FOR CERTIORARI FILED BY HEREIN PETITIONER AND IN DENYING THE LATTERS MOTION FOR RECONSIDERATION, THEREBY AFFIRMING THE DECISION OF THE COURT A QUO CONSIDERING THAT: A. THE COMPLAINT IS ONE TO ENFORCE THE SUBSIDIARY CIVIL LIABILITY OF PETITIONER UNDER THE REVISED PENAL CODE FOR THE ALLEGED LIBELOUS STATEMENTS OF ITS FORMER EMPLOYEE.

B. AN EMPLOYER DOES NOT INCUR SUBSIDIARY CIVIL LIABILITY UNDER THE CIVIL CODE, BUT ONLY UNDER THE REVISED PENAL CODE. UNDER THE LATTER, AN EMPLOYER ONLY BECOMES SUBSIDIARILY LIABLE UPON CONVICTION OF THE ACCUSED EMPLOYEE AND PROOF OF HIS INSOLVENCY. C. WHILE A SEPARATE CIVIL ACTION FOR DAMAGES MAY PROCEED AGAINST HERNAN H. COSTA UNDER ARTICLE 33 OF THE CIVIL CODE, NO SUCH ACTION MAY PROCEED AGAINST PETITIONER TO ENFORCE ITS SUBSIDIARY LIABILITY AS EMPLOYER UNDER THE SAME ARTICLE. II ...SERIOUSLY ERRED IN SUSTAINING RESPONDENTS RIGHT TO FILE THE CIVIL CASE AGAINST PETITIONER NOTWITHSTANDING THEIR ADMITTED FAILURE TO MAKE A RESERVATION AND THEIR CONTINUED PARTICIPATION IN THE CRIMINAL CASE. III ...FAILED TO APPRECIATE THAT RESPONDENTS FAILURE TO RESERVE AND THEIR CONTINUED PARTICIPATION IN THE CRIMINAL CASE BAR THE FILING OF THE COMPLAINT FOR DAMAGES AGAINST MR. COSTA AND PETITIONER, CONSIDERING THAT: A. UNDER THE DOCTRINE OF LITIS PENDENTIA, THE CIVIL ACTION TO ENFORCE PETITIONERS SUBSIDIARY CIVIL LIABILITY MUST BE DISMISSED. B. THE CIVIL ACTION TO ENFORCE PETITIONERS SUBSIDIARY CIVIL LIABILITY MUST BE DISMISSED TO PREVENT FORUMSHOPPING OR MULTIPLICITY OF SUITS.[2] Despite the foregoing formulation of alleged errors, we find that petitioner raises one principal issue for the Courts resolution: Could private respondents sue petitioner for damages based on subsidiary liability in an independent civil action under Article 33 of the Civil Code, during the pendency of the criminal libel cases against petitioners employee? In our view, respondents suit based on subsidiary liability of petitioner is premature. At the outset, we are constrained to delve into the nature of Civil Case No. 65026, respondents complaint for damages against IFFI. Petitioner avers that the Court of Appeals erred when it treated said complaint as one to enforce petitioners primary liability under Article 33[3] of the Civil Code. It asserts that in so doing the appellate court introduced a new cause of action not alleged nor prayed for in respondents complaint. Petitioner argues that a cause of action is determined by the allegations and prayer in a complaint. Respondents in their complaint did not allege that IFFI was primarily liable for damages. On the contrary, petitioner says the complaint was replete with references that IFFI was being sued in its subsidiary capacity. According to petitioner, the Court of Appeals could not, on its own, include allegations which were not in the complaint, nor could it contradict the cause of action nor change the theory of the case after petitioner had answered. While pleadings should be liberally construed, says the petitioner, liberal construction should not be abused. Misleading the adverse party should be avoided. Further, it avers that where allegations in the pleading are inconsistent, the pleader is bound by those most favorable to its opponent, [4] and consequently, respondents complaint should not be treated as one to enforce IFFIs primary liability as the appellate court erroneously did, considering that the complaint plainly adverts to the alleged subsidiary liability of IFFI as the employer of Costa. Respondents, on the other hand, aver that the Court of Appeals was correct in treating the action as a civil action for damages entirely separate and distinct from the criminal action that can proceed independently in accordance with Art. 33 of the Civil Code.[5] It was also correct when it recognized respondents right to move directly against IFFI as the employer of Costa, who had long fled the country, respondents added. On this score, we find petitioners contentions persuasive and respondents position untenable. The well-established rule is that the allegations in the complaint and the character of the relief sought determine the nature of an action. [6] A perusal of the respondents civil complaint before the regional trial court plainly shows that respondents is suing IFFI in a subsidiary and not primary capacity insofar as the damages claimed are concerned. First, respondents entitled the complaint, MERLIN J. ARGOS AND JAJA C. PINEDA v. MR. HERNAN COSTA, as former Managing Director of IFF (Phil.), Inc., AND INTERNATIONAL FLAVORS AND FRAGRANCES (PHILS.), INC. ... in its subsidiary capacity, as employer of Hernan H. Costa. Although the title of the complaint is not necessarily determinative of the nature of the action, it nevertheless indicates respondents intention. [7] The designation of the nature of the action, or its title is not meaningless or of no effect in the determination of its purpose and object. [8] Second, paragraph 2 of the complaint expressed in categorical terms that respondents were suing IFFI in its subsidiary capacity. It stated, defendant IFFI is being sued in its subsidiary capacity as employer of Hernan H. Costa, in accordance with the pertinent provisions under the Rules of Court, the Revised Penal Code and/or the Civil Code of the Philippines. [9]

Third, respondents described the nature of such liability in paragraph 22: ... in case of his (Costas) default, defendant (IFFI) should be held subsidiarily liable as an employer of Hernan Costa. Defendant has the absolute and sole power and authority in matters of company policies and management (Arts. 100, 101, 102 and 104 of the Revised Penal Code). [10] Lastly, the prayer of the complaint reads: WHEREFORE, it is respectfully prayed that after hearing, this Honorable Court renders judgment against the defendant, Hernan H. Costa and/or against defendant International Flavors and Fragrances (Phil.), Inc., in its subsidiary capacity (subsidiary liability) as an employer...[11] To reiterate, nothing could be clearer than that herein respondents are suing IFFI civilly in its subsidiary capacity for Costas alleged defamatory acts. Moreover, the appellate court could not convert allegations of subsidiary liability to read as averments of primary liability without committing a fundamental unfairness to the adverse party. Essential averments lacking in a pleading may not be construed into it, nor facts not alleged by a plaintiff be taken as having no existence.[12] Justice requires that a man be apprised of the nature of the action against him so that he may prepare his defense. A pleading must be construed most strictly against the pleader. He is presumed to have stated all the facts involved, and to have done so as favorably to himself as his conscience will permit. So, if material allegations were omitted, it will be presumed in the absence of an application to amend that those matters do not exist.[13] This is a basic rule in pleadings.[14] Given the circumstances herein, could petitioner be sued for damages because of its alleged subsidiary liability under Art. 33 of the Civil Code? In instituting the action for damages with the Regional Trial Court of Pasig, Branch 166, respondents seek to enforce a civil liability allegedly arising from a crime. Obligations arising from crimes are governed by Article 1161[15] of the Civil Code, which provides that said obligations are governed by penal laws, subject to the provision of Article 2177[16] and the pertinent provisions of Chapter 2, Preliminary Title, on Human Relations, and of Title XVIII of Book IV of the Civil Code. Article 100 of the Revised Penal Code is also pertinent. It provides that every person criminally liable for a felony is also civilly liable. In default of the persons criminally liable, employers engaged in any kind of industry shall be civilly liable for felonies committed by their employees in the discharge of their duties. [17] Article 33 of the Civil Code provides specifically that in cases of defamation, a civil action for damages, entirely separate and distinct from the criminal action, may be brought by the injured party. Such civil action proceeds independently of the criminal prosecution and requires only a preponderance of evidence. In Joaquin vs. Aniceto, 12 SCRA 308 (1964), we held that Article 33 contemplates an action against the employee in his primary civil liability. It does not apply to an action against the employer to enforce its subsidiary civil liability, because such liability arisesonly after conviction of the employee in the criminal case or when the employee is adjudged guilty of the wrongful act in a criminal action and found to have committed the offense in the discharge of his duties. [18] Any action brought against the employer based on its subsidiary liability before the conviction of its employee is premature. [19] However, we note that by invoking the principle of respondeat superior,[20] respondents tried to rely on Art. 33 to hold IFFI primarily liable for its employees defamatory statements. But we also find that respondents did not raise the claim of primary liability as a cause of action in its complaint before the trial court. On the contrary, they sought to enforce the alleged subsidiary liability of petitioner as the employer of Costa, the accused in pending criminal cases for libel, prematurely. Having established that respondents did not base their civil action on petitioner IFFIs primary liability under Art. 33 but claimed damages from IFFI based on its subsidiary liability as employer of Costa, prematurely, we need not delve further on the other errors raised by petitioner. Plainly both the trial and the appellate courts erred in failing to dismiss the complaint against herein petitioner by respondents claiming subsidiary liability while the criminal libel cases against IFFIs employee, Costa, were pending before the metropolitan trial court. Nothing herein said, however, ought to prejudice the reliefs that respondents might seek at the appropriate time. WHEREFORE, the petition is GRANTED. The decision and resolution of the Court of Appeals dated February 7, 1997 and August 28, 1997, respectively, are hereby REVERSED AND SET ASIDE. The civil complaint for damages filed and docketed as Civil Case No. 65026 before the Regional Trial Court of Pasig, Branch 166, against herein petitioner is ORDERED DISMISSED. Costs against respondents. SO ORDERED. Mendoza, Buena, and De Leon, Jr., JJ., concur. Bellosillo, (Chairman), J., no part due to personal relation to one of parties.

G.R. No. L-34529 January 27, 1983 MAXIMO MARCIA, AMALIA MOJICA, TIRSO YAP, DAMIANA MARCIA, EDGAR MARCIA, and RENATO YAP,petitioners, vs. COURT OF APPEALS, FELARDO PAJE, and VICTORY LINER, INC., respondents. Ricardo J. Francisco, for petitioners. Flors, Macapagal, Ocampo & Dizon for private respondents. RELOVA, J.: Appeal by certiorari from the decision of the Court of Appeals affirming the judgment of the Court of First Instance of Rizal, which dismissed the complaint filed by tile petitioners against private respondents in the concept of an independent civil action for damages for physical injuries resulting from reckless imprudence. On December 23, 1956, in the municipality of Lubao, Pampanga, a passenger bus operated by private respondent Victory Liner, Inc. and driven by its employee. private respondent Felardo Paje, collided with a jeep driven by Clemente Marcia, resulting in the latter's death and in physical injuries to herein petitioners, Edgar Marcia and Renato Yap. Thereupon, an information for homicide and serious physical injuries thru reckless imprudence was filed against Felardo Paje in the Court of First Instance of Pampanga (Criminal Case No. 2745). On January 23, 1957, an action for damages (Civil Case No. 4425) was filed in the Court of First Instance of Rizal by Edgar Marcia and Renato Yap, together with their respective parents. against the Victory Liner, Inc. and Felardo Paje, alleging that, the mishap was due to the reckless imprudence and negligence of the latter in driving the passenger bus. While said Civil Case No. 4425 was in progress in the Court of First Instance of Rizal, the criminal action proceeded in the Court of First Instance of Pampanga (Criminal Case No. 2745). The accused Felardo Paje was convicted of the offense charged. However, on appeal to the Court of Appeals, he was acquitted in a decision promulgated on November 3, 1982, based on the findings, to wit: 1 That the Victory Liner bus left its post, kilometer post no. 156, in San Marcelino, Zambales, at about 2:00 AM 2 That on the highway at Lubao, Pampanga, between Posts Nos. 83 and 84, the appellant driver thereof, saw a cargo truck parked in the middle of the right lane of the road to Manila, without 3 That appellant slackened the speed of his truck from 60 km. p.h. to 35 or 40 km. p. h. in order to pass said truck; 4 That the appellant did not see the oncoming jeep until it swerved to the left. 5 That the jeep was still far so appellant attempted to pass the truck but before he could do so, the jeep came very fast at the center of the road and out of its lane. 6 That the passengers of the bus shouted at the appellant to bring the bus to the side so as to avoid a frontal collision with he jeep, and appellant brought his bus to the right shoulder of the road going to Bataan; 7 That the jeep driven by the deceased Clemente Marcia was running at a fast pace for which reason the driver lost control and veered sharply to the right shoulder of the road and crashed into the bus, parked thereat a few seconds before. 8 That appellant was not speeding, was diligent, and hence, not liable for the collision which at the least, was a fortuitous event for which no one was responsible. and the conclusion that "CRIMINAL NEGLIGENCE is WANTING in this case, and that appellant was NOT even guilty of CIVIL NEGLIGENCE, Insofar as appellant was concerned, it was a case of PURE ACCIDENT." As a consequence, herein private respondents, defendants in Civil Case No. 4425 of the Court of First Instance of Rizal, moved for the dismissal of the complaint invoking the decision of the Court of Appeals acquitting Felardo Paje and citing Section I (d), Rule 107 of the Rules of Court now Section 3 (c), Rule I I I of the New Rules of Court), which reads: SECTION 1. Rules governing civil actions arising from offenses. Except as otherwise provided by law, the following rules shall be observed: xxx xxx xxx (d) Extinction of the penal action does not carry with it extinction of the civil, unless the extinction proceeds from a declaration in a final judgment that the fact from which the civil might arise did not exist. In the other cases, the persons entitled to the civil action may institute it in the jurisdiction and in the manner provided by law against the person who may be liable for restitution of the thing and reparation or indemnity for the damages suffered. The trial court denied the motion to dismiss and, thereafter, continued to hear defendants' (herein private respondents) evidence. The following were presented as defendants' evidence in chief:

(a) the whole record of Criminal Case No. 2745 of the Court of First Instance of Pampanga in which defendant Felardo Paje was by reason of the occurrence prosecuted criminally and convicted of homicide with serious physical injuries thru reckless imprudence; (b) the decision of the Court of Appeals in CA-G.R. No. 01691 Cr, acquitting the accused; and (c) copy of the brief of the said defendant as accused-appellant in the said Court of Appeals case. On August 10, 1966, the Court of First Instance of Rizal rendered a decision dismissing plaintiffs' complaint against the defendants Victory Liner, Inc. and Felardo Paje, without pronouncement as to costs. Petitioners appealed the case to the (Court of Appeals CA-G.R. No. 38964-R) alleging that the acquittal of Paje in the criminal action for homicide and serious physical injuries thru reckless imprudence "is not a ground for dismissing the complaint in the instant civil action; that the instant civil action is entirely separate and distinct from the criminal action and shall proceed independently of the criminal prosecution, so that whatever may have been the result of the criminal action is irrelevant to this civil action; that Section 2 of Rule 111 of the Rules of Court and not Section 3, paragraph (c) of the said rule applies; that the statement in the decision of the Court of Appeals in the criminal action that defendant Paje as accused therein was not guilty of civil negligence is without the jurisdiction of the said Court to make and is to be completely disregarded as an extraneous, officious and void statement which cannot affect in any way the instant civil action; that the records of the criminal action against defendant Paje are inadmissible evidence; that it has been established in the case at bar, not only by preponderance of evidence but by uncontradicted, conclusive evidence that petitioners suffered damages as a proximate result of the negligence of respondent Paje and that it has been established, not only by preponderance of evidence but by uncontradicted, conclusive evidence, that the damages suffered by petitioners as a result of the negligence of private respondents is in the amount of P250,817.96, and that the latter should be sentenced, jointly and severally, to pay the same to petitioner. In the meantime, the heirs of Clemente Marcia who, as aforesaid, died as a result of the collision, instituted a separate civil action in the Court of First Instance of Rizal (Civil Case No. 6880) for damages based on the alleged reckless imprudence of bus driver Felardo Paje, praying that the driver and the Victory Liner, Inc. be ordered to pay jointly and severally the amount of damages claimed. The complaint of the heirs of Clemente Marcia was dismissed by the trial court. Appeal on questions of law was taken to this Court (Laura Corpus et al vs. Felardo Paje at al, 28 SCRA 1062) which, however, affirmed the order for the reason, among others, that "(1) The acquittal of the defendant Felardo Paje by the Court of Appeals in the criminal action on the ground that the reckless imprudence or criminal negligence charged against him did not exist and that the collision was a case of pure accident, was a bar to the civil action for damages for the death of Clemente Marcia, which action was based upon the same criminal negligence of which the defendant Felardo Paje was acquitted in the criminal action." Following the ruling of this Court in the Corpus vs. Paje decision, respondent Court of Appeals held that the private respondents Cannot be held civilly liable after it had ruled in the criminal action that negligence was wanting and that the collision was a case of pure accident. Dissatisfied with the decision, petitioners have come to US alleging that the Court of Appeals erred: I. IN NOT HOLDING THAT PETITIONERS INSTANT CIVIL ACTION FOR DAMAGES AGAINST PRIVATE RESPONDENTS FOR PHYSICAL INJURIES RESULTING FROM NEGLIGENCE IS AN INDEPENDENT ONE, ENTIRELY SEPARATE AND DISTINCT FROM THE CRIMINAL ACTION, UNDER THE PROVISIONS OF ARTICLES 33, 2176 AND 2177 OF THE NEW (CIVIL CODE AND SECTION 2 OF RULE 111 OF THE RULES OF COURT. AND IN INSTEAD HOLDING THAT THE INSTANT ACTION IS NOT AMONG THE INDEPENDENT CIVIL ACTIONS AUTHORIZED BY THE SAID PROVISIONS. II. IN NOT HOLDING THAT THE ACQUITTAL OF RESPONDENT FELARDO PAJE, DRIVER OF RESPONDENT VICTORY LINER, INC., IN THE CRIMINAL ACTION BASED ON THE SAID PHYSICAL INJURIES AND NEGLIGENCE IS ENTIRELY IRRELEVANT TO THE INSTANT CIVIL ACTION FOR DAMAGES BY VIRTUE OF THE AFORECITED PROVISIONS OF THE NEW CIVIL CODE AND THE RULES OF COURT, AND IN INSTEAD HOLDING THAT THE SAID ACQUITTAL IS A BAR TO THE INSTANT CIVIL ACTION UNDER SECTION 3 (c) OF RULE I I I AND SECTION 49 (c) OF RULE 39 OF THE RULES OF COURT. III. IN NOT HOLDING THAT THE EVIDENCE ADDUCED BY PRIVATE RESPONDENTS IN THE INSTANT CIVIL ACTION FOR DAMAGES, CONSISTING OF THE RECORDS OF THE CRIMINAL ACTION IN THE TRIAL COURT, THE DECISION OF THE COURT OF APPEALS

ACQUITTING RESPONDENT PAJE AND THE COPY OF THE BRIEF OF THE SAID RESPONDENT AS ACCUSED-APPELLANT, ARE INADMISSIBLE IN THE INSTANT CIVIL ACTION FOR DAMAGES. IV. IN NOT HOLDING THAT IT HAS BEEN ESTABLISHED IN THE CASE AT BAR, NOT ONLY BY PREPONDERANCE OF EVIDENCE BUT BY UNCONTRADICTED, CONCLUSIVE EVIDENCE, THAT PETITIONERS SUFFERED DAMAGES AS A PROXIMATE RESULT OF THE NEGLIGENCE OF RESPONDENT PAJE. V. IN NOT HOLDING THAT IT HAS BEEN ESTABLISHED, NOT ONLY BY PREPONDERANCE OF EVIDENCE BUT BY UNCONTRADICTED, CONCLUSIVE EVIDENCE, THAT THE DAMAGES SUFFERED BY PETITIONERS AS A RESULT OF THE NEGLIGENCE OF DEFENDANTS IS IN THE AMOUNT OF P250,817.96, AND IN NOT SENTENCING PRIVATE RESPONDENTS JOINTLY AND SEVERALLY TO PAY THE SAME TO PETITIONERS. It is the stand of herein petitioners that Section 2, Rule 111 of the Rules of Court, not Section 3 (c) thereof, should apply in the case at bar. Sec. 2. Independent civil action. In the cases provided for in Articles 31, 32, 33, 34 and 2177 of the Civil Code of the Philippines, an independent civil action entirely separate and distinct from the criminal action, may be brought by the injured party during the pendency of the criminal case, provided the right is reserved as required in the preceding section. Such civil action shall proceed independently of the criminal prosecution, and shall require only a preponderance of evidence. We do not agree, Section 2 of Rule 111 merely refers to the institution of an independent civil action without waiting for the filing or termination of the criminal action and requires only preponderance of evidence to prosper and not proof beyond reasonable doubt as required for conviction in criminal cases. However, an acquittal based on the finding that the facts upon which civil liability did not exist, bars the filing of an independent civil action if it is based on the crime. As early as 1952, We have held in the case of Tan vs. Standard Vacuum Oil Company 91 Phil. 672, that "the acquittal of the accused from the criminal charge will not necessarily extinguish the civil liability unless the court declares in the judgment that the fact from which the civil liability might arise did not exist. Where the court states 'that the evidence throws no light on the cause of fire and that it was an unfortunate accident for which the accused cannot be held responsible,' this declaration fits well into the exception of the rule which exempts the accused, from civil liability. " Likewise, in Albornoz vs. Albornoz, 98 Phil. 785, it was the ruling that "where the judgment in a criminal action contains an express declaration that the basis of claimant's action did not exist, the latter's action for civil liability is barred under section 1 (d) Rule 107 of the Rules of Court." And, in De Mesa vs. Priela 24 SCRA 582, this Court, speaking through then Chief Justice Roberto Concepcion, ruled that extinction of the penal action does not carry with it extinction of the civil, unless the extinction proceeds from a declaration in a final judgment that the fact from which the civil might arise did not exist. In other cases, the person entitled to the civil action may institute it in the jurisdiction and in the manner provided by law against the person who may be liable for restitution of the thing and reparation or indemnity for the damage suffered (Sec. 3 [c], Rule 111, Rules of Court.)" As held in Corpus vs. Paje, supra, reckless imprudence or criminal negligence is not one of the three crimes mentioned in Article 33 of the Civil Code, which provides: 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 above article speaks only of defamation, fraud and physical injuries. The injuries suffered by herein petitioners were alleged to be the result of criminal negligence; they were not inflicted with malice. Hence, no independent civil action for damages may be instituted in connection therewith. Further, Section 3 (c), Rule 111 of the Rules of Court states that "(c) Extinction of the penal action does not carry with it extinction of the civil, unless the extinction proceeds from a declaration in a final judgment that the fact from which the civil might arise did not exist." Otherwise stated, unless the act from which the civil liability arises is declared to be nonexistent in the final judgment, the extinction of the criminal liability will not carry with it the extinction of the civil liability. Thus, if a person is charged with homicide and successfully pleaded selfdefense, his acquittal by reason thereof will extinguish his civil liability. He has not incurred any criminal liability. On the other hand, if his acquittal is, for instance, due to the fact that he was not sufficiently Identified to be the assailant, a civil action for damages may be maintained. His acquittal is not due to non-existence of the crime from which civil liability might arise, but because he was not, in the eyes of the court, sufficiently Identified as the perpetrator of the crime.

In People vs. Buan, 22 SCRA 1383, this Court, speaking through Mr. Justice J.B.L. Reyes, said that "the essence of the quasi offense of criminal negligence under Article 365 of the Revised Penal Code lies in the execution of an imprudent or negligent act that, if intentionally done, would be punishable as a felony. The law penalizes the negligent or careless act, not the result thereof. The gravity of the consequence is only taken into account to determine the penalty; it does not qualify the substance of the offense. The charge against Felardo Paje was not for homicide and physical injuries but for reckless imprudence or criminal negligence resulting in homicide (death of Clemente Marcia) and physical injuries suffered by Edgar Marcia and Renato Yap. They are not one of the three (3) crimes mentioned in Article 33 of the Civil Code and, therefore, no civil action shall proceed independently of the criminal prosecution. The case of Laura Corpus vs. Felardo Paje (supra) is the same as the case at bar, the only difference being the partyplaintiffs or petitioners. Clemente Marcia died, while Edgar Marcia and Renato Yap suffered physical injuries in the same accident. The heirs of Clemente Marcia filed Civil Case No. 6880 in the Court of First Instance of Rizal against herein respondents. The case was dismissed and appealed directly to this Court. 1wph1.t The order appealed from was affirmed, as recorded in Laura Corpus vs. Felardo Paje, 28 SCRA 1062. The case at bar (Civil Case No. 4425) was filed by Edgar Marcia and Renato Yap against the same defendants in the Court of First Instance of Rizal. After trial, the case was dismissed and affirmed by the Court of Appeals. It is now before Us on appeal by certiorari from the said decision. Relative to the admissibility of the documents, to wit; (a) the records of the criminal case against Paje, (b) the decision of the Court of Appeals acquitting the latter; and (c) copy of the brief of the respondent Paje as accused-appellant, suffice it to say that since petitioners' cause of action is based on the alleged recklessness and imprudence of respondent Paje it necessarily follows that his acquittal by the Court of Appeals and its declaration that the mishap was "pure accident" are relevant and material evidence. In fact, the lower court may even take judicial notice of the decision of the Court of Appeals in said criminal case. Finally, with respect to the findings of fact of the Court of Appeals, well settled is the rule that the same are final and cannot be disturbed by Us, particularly where they are based, as they are in the case at bar, upon substantial evidence. WHEREFORE, the decision appealed from is hereby AFFIRMED in toto. With costs against the petitioners. SO ORDERED. Teehankee (Chairman), Melencio-Herrera, Plana, Vasquez and Gutierrez, Jr., JJ., concur. G.R. No. L-45404 August 7, 1987 G. JESUS B. RUIZ, petitioner, vs. ENCARNACION UCOL and THE COURT OF APPEALS, respondents. GUTIERREZ, JR., J: This is an appeal from the order of the Court of First Instance of Ilocos Norte dismissing the plaintiff-appellant's complaint for damages against defendant-appellee on the ground of res judicata. The issue involved being a pure question of law, the appellate court certified the appeal to us for decision on the merits. The facts are not disputed, Agustina Tagaca, laundrywoman for plaintiff-appellant Atty. Jesus B. Ruiz filed an administrative charge against defendant-appellee Encarnacion Ucol, a midwife in the health center of Sarratt Ilocos Norte. In her answer to the charges, Ucol alleged that Tagaca was merely used as a tool by Atty. Ruiz who wanted to get back at the Ucol's because of a case filed by Encarnacion Ucol's husband against Ruiz. She was also alleged to have made remarks that Atty. Ruiz instigated the complaint and fabricated the charges. The administrative case was dismissed. Ruiz decided to file his own criminal complaint for libel against Ucol based on the alleged libelous portion of Ucol's answer. Upon arraignment, Ucol entered a plea of not guilty. During the proceedings in the libel case, complainant Atty. Ruiz entered his appearance and participated as private prosecutor. After trial, the lower court rendered judgment acquitting Ucol on the ground that her guilt was not established beyond reasonable doubt. No pronouncement was made by the trial court as to the civil liability of the accused. Instead of appealing the civil aspects of the case, Ruiz filed a separate complaint for damages based on the same facts upon which the libel case was founded.

Ucol filed a motion to dismiss stating that the action had prescribed and that the cause of action was barred by the decision in the criminal case for libel. The trial court granted the motion to dismiss on the ground of res judicata. As earlier stated, on appeal, the Court of Appeals certified the case to us, the only issue being whether or not the civil action for damages was already barred by the criminal case of libel. Before going into the merit of this appeal, it is noteworthy to mention that there are actually two cases now before us involving the contending parties. Defendant-appellee Ucol filed an "appeal by certiorari" before this Court questioning the dissenting opinion of the Court of Appeals. Ucol prays for a ruling "that the respondent Court of Appeals committed a grave abuse of discretion in not dismissing the present case but instead in ordering the same remanded to the lower court for further proceedings ... ." Any ordinary student in law school should readily know that what comprises a decision which can be the subject of an appeal or a special civil action is the majority opinion of the members of the court, but never the dissenting opinion. Moreover, no decision on appeal has as yet been rendered in this case. The act of the defendant-appellee's counsel in filing such a petition defies logic or reason. It is totally inexplicable how a member of the bar could be so careless or, if the act was deliberate, could have the courage to come before this Court asking us to review a dissenting opinion. Counsel is warned that we do not find his mistake in the slightest bit amusing. Turning now to the present appeal, plaintiff-appellant Ruiz contends that there can be no res judicata since nowhere in its decision did the trial court pass upon the civil aspect of the criminal case nor did it make any express declaration that the fact on which said case was predicated did not exist. He cites the pertinent provisions of Article 29 of the Civil Code and Rule III, Section 3 subsection (c) of the Rules of Court which respectively provide: ART. 29. When the accused in a criminal prosecution is acquitted on the ground that his guilt has not been proved beyond reasonable doubt, a civil action for damages for the same act or omission may be instituted. ... xxx xxx xxx RULE III, Sec. 3(c) Extinction of the penal action does not carry with it extinction of the civil, unless the extinction proceeds from a declaration in a final judgment that the fact from which the civil might arise did not exist. ... We may also mention Article 33 of the Civil Code which gives an offended party in cases of defamation, among others, the right to file a civil action separate and distinct from the criminal proceedings whether or not a reservation was made to that effect. The plaintiff-appellant's contentions have no merit. The right of the plaintiff-appellant under the above provisions to file the civil action for damages based on the same facts upon which he instituted the libel case is not without limitation. We find the appeal of G. Jesus B. Ruiz without merit. We see no advantage or benefit in adding to the clogged dockets of our trial courts what plainly appears from the records to be a harassment suit. In acquitting Encarnacion Ucol of the libel charge, the trial court made these factual findings: Clearly then, Atty. Ruiz filed the instant Criminal Case against Encarnacion Ucol as retaliation for what he believed was an act of ingratitude to him on the part of her husband. The precipitate haste with which the administrative complaint was filed shows that he was the one personally interested in the matter. All that Agustina Tagaca told him was double hearsay. The incident, if there was, happened between the accused and Ceferino in the absence of Agustina; so that, all that Ceferina allegedly told her, and she in turn told Atty. Ruiz, was undoubtedly double check hearsay; and Atty. Ruiz should therefore check the facts with Ceferino, but he did not do that, and he did not even present Ceferino as a witness. For these reasons, accused has every reason to believe that Atty. Ruiz was the author who concocted the charges in the administrative complaint and had his laundry-woman, complainant Agustina Tagaca, sign it. Agustina has very little education and could hardly speak English, yet the administrative complaint was written in polished English, and who else but Atty. Ruiz could have authored those phrases in the complaint: "The retention of Mrs. Ucol in this government service is inimical to the good intentions of the Department to serve humanity and a disgrace and liability to present administration." As will be shown later on, it appears that it is this complaint signed by Agustina, but authored by Atty. Ruiz, that is libelous and not the respondent's answer; and even, assuming that the administrative complaint may not have been impelled by actual malice, the charge(s) were certainly reckless in the face of proven facts and circumstances. Court actions are not established for parties to give bent to their prejudice. The poor and the humble are, as a general rule, grateful to a fault, that intrigues and ingratitude are what they abhor. (Amended Record on Appeal, pp. 8-10).

The findings in the criminal case, therefore, show a pattern of harassment. First, petitioner Ruiz had something to do with the administrative complaint. The complaint was dismissed. Second, he filed a criminal case for libel based on portions of Mrs. Ucol's answer in the administrative case. Third, he acted as private prosecutor in the criminal case actively handling as a lawyer the very case where he was the complainant. And fourth, after the accused was acquitted on the basis of the facts stated above, Atty. Ruiz pursued his anger at the Ucols with implacability by filing a civil action for damages. As stated by the trial judge, "court actions are not established for parties to give bent to their prejudice." This is doubly true when the party incessantly filing cases is a member of the bar. He should set an example in sobriety and in trying to prevent false and groundless suits. In Roa v. de la Cruz, et al. (107, Phil. 10) this Court ruled: Under the above provisions (Art. 33 of the Civil Code), independently of a criminal action for defamation, a civil suit for the recovery of damages arising therefrom may be brought by the injured party. It is apparent, however, from the use of the words "may be," that the institution of such suit is optional." (An Outline of Philippine Civil Law by J.B.L. Reyes and R.C. Puno, Vol. I, p. 54) In other words, the civil liability arising from the crime charged may still be determined in the criminal proceedings if the offended party does not waive to have it adjudged, or does not reserve his right to institute a separate civil action against the defendant. (The case of Reyes v. de la Rosa (52 Off. Gaz., [15] 6548; 99 Phil., 1013) cited by plaintiff in support of her contention that under Art. 33 of the New Civil Code the injured party is not required to reserve her right to institute the civil action, is not applicable to the present case. There was no showing in that case that the offended party intervened in the prosecution of the offense, and the amount of damages sought to be recovered was beyond the jurisdiction of the criminal court so that a reservation of the civil action was useless or unnecessary.) (Dionisio v. Alvendia, 102 Phil., 443; 55 Off. Gaz., [25]4633.]) In the instant case, it is not disputed that plaintiff Maria C. Roa upon whose initiative the criminal action for defamation against the defendant Segunda de la Cruz was filed did not reserve her right to institute it, subject, always to the direction and control of the prosecuting fiscal. (Section 15 in connection with section 4 of Rule 106, Rules of Court; Lim Tek Goan v. Yatco, 94 Phil., 197). The reason of the law in not permitting the offended party to intervene in the prosecution of the offense if he had waived or reserved his right to institute the civil action is that by such action her interest in the criminal case has disappeared. Its prosecution becomes the sole function of the public prosecutor. (Gorospe, et al., v. Gatmaitan, et al., 98 Phil., 600; 52 Off. Gaz., [15] 2526). The rule, therefore, is that the right of intervention reserved to the injured party is for the sole purpose of enforcing the civil liability born of the criminal act and not of demanding punishment of the accused. (People v. Orais, 65 Phil., 744; People v. Velez, 77 Phil., 1026; People v. Flores, et al., G.R. No. L-7528, December 18,1957; see also U.S. v. Malabon, 1 Phil., 731; U.S. v. Heery, 25 Phil., 600). Plaintiff having elected to claim damages arising from the offense charged in the criminal case through her appearance or intervention as private prosecutor we hold that the final judgment rendered therein constitutes a bar to the present civil action for damages based upon the same cause. (See Tan v. Standard Vacuum Oil Co., et al., 91 Phil., 672; 48 Off. Gaz., [7] 2745.). We are, therefore, constrained to dismiss the present appeal. Atty. Ruiz has more than had his day in court. The then court of first instance acquitted Mrs. Ucol and stated in the dispositive portion of its decision that her guilt was not established beyond reasonable doubt. A review of the court's findings, however, indicates that the disputed Answer of Mrs. Ucol in the administrative case contains no libel. As stated by the trial court, "As will be shown later, it appears that it is this complaint signed by Agustina, but authored by Atty. Ruiz, that is libelous and not the respondent's answer." (Emphasis supplied). The court found the charges against Ucol, if not malicious, at least reckless in the face of proven facts and circumstances. The trial court stated. Analyzing defendant's answer Exh. "5", even with meticulous care, the Court did not find any defamatory imputation which causes dishonor or discredit to the complainant. She was the victim of an unprovoked, unjustified and libelous attack against her honor, honesty, character and reputation; she has a right to self-defense, which she did in her answer, to protect her honesty and integrity and the very job upon which her family depend for their livelihood. Every sentence in her answer (Exh. "5") is relevant, and constitutes privileged matter. She did not go further than her interest or duties require. She did not go beyond explaining what was said of her in the complaint for the purpose of repairing if not entirely removing the effects of the charge against her. She had absolutely no motive to libel Atty. Ruiz who, by the way, cast the first stone. ... (Amended Record on Appeal pp. 10-11) WHEREFORE, the appeal filed by appellant Jesus B. Ruiz is DISMISSED for lack of merit. The petition filed by petitioner Encarnacion Ucol is likewise DISMISSED for patent lack of merit.

SO ORDERED. ARTICLE 34 CIVIL LIABILITY OF MEMBER OR MUNICIPAL OR CITY POLICE PRINCIPLA LIABILITY OF MEMBER OF POLICE SUBSIDIARY LIABILITY OF MUNICIPALITY 2167-2177 QUASI DELICT or CULPA ACQUILIANA G.R. No. L-48006 vs. SEVERINO GARCIA and TIMOTEA ALMARIO, respondents. Celedonio P. Gloria and Antonio Barredo for petitioner. Jose G. Advincula for respondents. BOCOBO, J.: This case comes up from the Court of Appeals which held the petitioner herein, Fausto Barredo, liable in damages for the death of Faustino Garcia caused by the negligence of Pedro Fontanilla, a taxi driver employed by said Fausto Barredo. At about half past one in the morning of May 3, 1936, on the road between Malabon and Navotas, Province of Rizal, there was a head-on collision between a taxi of the Malate Taxicab driven by Pedro Fontanilla and a carretela guided by Pedro Dimapalis. The carretela was overturned, and one of its passengers, 16-year-old boy Faustino Garcia, suffered injuries from which he died two days later. A criminal action was filed against Fontanilla in the Court of First Instance of Rizal, and he was convicted and sentenced to an indeterminate sentence of one year and one day to two years of prision correccional. The court in the criminal case granted the petition that the right to bring a separate civil action be reserved. The Court of Appeals affirmed the sentence of the lower court in the criminal case. Severino Garcia and Timotea Almario, parents of the deceased on March 7, 1939, brought an action in the Court of First Instance of Manila against Fausto Barredo as the sole proprietor of the Malate Taxicab and employer of Pedro Fontanilla. On July 8, 1939, the Court of First Instance of Manila awarded damages in favor of the plaintiffs for P2,000 plus legal interest from the date of the complaint. This decision was modified by the Court of Appeals by reducing the damages to P1,000 with legal interest from the time the action was instituted. It is undisputed that Fontanilla 's negligence was the cause of the mishap, as he was driving on the wrong side of the road, and at high speed. As to Barredo's responsibility, the Court of Appeals found: ... It is admitted that defendant is Fontanilla's employer. There is proof that he exercised the diligence of a good father of a family to prevent damage. (See p. 22, appellant's brief.) In fact it is shown he was careless in employing Fontanilla who had been caught several times for violation of the Automobile Law and speeding (Exhibit A) violation which appeared in the records of the Bureau of Public Works available to be public and to himself. Therefore, he must indemnify plaintiffs under the provisions of article 1903 of the Civil Code. The main theory of the defense is that the liability of Fausto Barredo is governed by the Revised Penal Code; hence, his liability is only subsidiary, and as there has been no civil action against Pedro Fontanilla, the person criminally liable, Barredo cannot be held responsible in the case. The petitioner's brief states on page 10: ... The Court of Appeals holds that the petitioner is being sued for his failure to exercise all the diligence of a good father of a family in the selection and supervision of Pedro Fontanilla to prevent damages suffered by the respondents. In other words, The Court of Appeals insists on applying in the case article 1903 of the Civil Code. Article 1903 of the Civil Code is found in Chapter II, Title 16, Book IV of the Civil Code. This fact makes said article to a civil liability arising from a crime as in the case at bar simply because Chapter II of Title 16 of Book IV of the Civil Code, in the precise words of article 1903 of the Civil Code itself, is applicable only to "those (obligations) arising from wrongful or negligent acts or commission notpunishable by law. The gist of the decision of the Court of Appeals is expressed thus: ... We cannot agree to the defendant's contention. The liability sought to be imposed upon him in this action is not a civil obligation arising from a felony or a misdemeanor (the crime of Pedro Fontanilla,), but an obligation imposed in article 1903 of the Civil Code by reason of his negligence in the selection or supervision of his servant or employee. The pivotal question in this case is whether the plaintiffs may bring this separate civil action against Fausto Barredo, thus making him primarily and directly, responsible under article 1903 of the Civil Code as an employer of Pedro Fontanilla. The July 8, 1942

FAUSTO BARREDO, petitioner,

defendant maintains that Fontanilla's negligence being punishable by the Penal Code, his (defendant's) liability as an employer is only subsidiary, according to said Penal code, but Fontanilla has not been sued in a civil action and his property has not been exhausted. To decide the main issue, we must cut through the tangle that has, in the minds of many confused and jumbled together delitos and cuasi delitos, or crimes under the Penal Code and fault or negligence under articles 1902-1910 of the Civil Code. This should be done, because justice may be lost in a labyrinth, unless principles and remedies are distinctly envisaged. Fortunately, we are aided in our inquiry by the luminous presentation of the perplexing subject by renown jurists and we are likewise guided by the decisions of this Court in previous cases as well as by the solemn clarity of the consideration in several sentences of the Supreme Tribunal of Spain. Authorities support the proposition that a quasi-delict or "culpa aquiliana " is a separate legal institution under the Civil Code with a substantivity all its own, and individuality that is entirely apart and independent from delict or crime. Upon this principle and on the wording and spirit article 1903 of the Civil Code, the primary and direct responsibility of employers may be safely anchored. The pertinent provisions of the Civil Code and Revised Penal Code are as follows: CIVIL CODE ART. 1089 Obligations arise from law, from contracts and quasi-contracts, and from acts and omissions which are unlawful or in which any kind of fault or negligence intervenes. xxx xxx xxx ART. 1092. Civil obligations arising from felonies or misdemeanors shall be governed by the provisions of the Penal Code. ART. 1093. Those which are derived from acts or omissions in which fault or negligence, not punishable by law, intervenes shall be subject to the provisions of Chapter II, Title XVI of this book. xxx xxx xxx ART 1902. Any person who by an act or omission causes damage to another by his fault or negligence shall be liable for the damage so done. ART. 1903. The obligation imposed by the next preceding article is enforcible, not only for personal acts and omissions, but also for those of persons for whom another is responsible. The father and in, case of his death or incapacity, the mother, are liable for any damages caused by the minor children who live with them. Guardians are liable for damages done by minors or incapacitated persons subject to their authority and living with them. Owners or directors of an establishment or business are equally liable for any damages caused by their employees while engaged in the branch of the service in which employed, or on occasion of the performance of their duties. The State is subject to the same liability when it acts through a special agent, but not if the damage shall have been caused by the official upon whom properly devolved the duty of doing the act performed, in which case the provisions of the next preceding article shall be applicable. Finally, teachers or directors of arts trades are liable for any damages caused by their pupils or apprentices while they are under their custody. The liability imposed by this article shall cease in case the persons mentioned therein prove that they are exercised all the diligence of a good father of a family to prevent the damage. ART. 1904. Any person who pays for damage caused by his employees may recover from the latter what he may have paid. REVISED PENAL CODE ART. 100. Civil liability of a person guilty of felony. Every person criminally liable for a felony is also civilly liable. ART. 101. Rules regarding civil liability in certain cases. The exemption from criminal liability established in subdivisions 1, 2, 3, 5, and 6 of article 12 and in subdivision 4 of article 11 of this Code does not include exemption from civil liability, which shall be enforced to the following rules: First. In cases of subdivision, 1, 2 and 3 of article 12 the civil liability for acts committed by any imbecile or insane person, and by a person under nine years of age, or by one over nine but under fifteen years of age, who has acted without discernment shall devolve upon those having such person under their legal authority or control, unless it appears that there was no fault or negligence on their part. Should there be no person having such insane, imbecile or minor under his authority, legal guardianship, or control, or if such person be insolvent, said insane, imbecile, or minor shall respond with their own property, excepting property exempt from execution, in accordance with the civil law.

Second. In cases falling within subdivision 4 of article 11, the person for whose benefit the harm has been prevented shall be civilly liable in proportion to the benefit which they may have received. The courts shall determine, in their sound discretion, the proportionate amount for which each one shall be liable. When the respective shares can not be equitably determined, even approximately, or when the liability also attaches to the Government, or to the majority of the inhabitants of the town, and, in all events, whenever the damage has been caused with the consent of the authorities or their agents, indemnification shall be made in the manner prescribed by special laws or regulations. Third. In cases falling within subdivisions 5 and 6 of article 12, the persons using violence or causing the fear shall be primarily liable and secondarily, or, if there be no such persons, those doing the act shall be liable, saving always to the latter that part of their property exempt from execution. ART. 102. Subsidiary civil liability of innkeepers, tavern keepers and proprietors of establishment . In default of persons criminally liable, innkeepers, tavern keepers, and any other persons or corporation shall be civilly liable for crimes committed in their establishments, in all cases where a violation of municipal ordinances or some general or special police regulation shall have been committed by them or their employees. Innkeepers are also subsidiarily liable for the restitution of goods taken by robbery or theft within their houses lodging therein, or the person, or for the payment of the value thereof, provided that such guests shall have notified in advance the innkeeper himself, or the person representing him, of the deposit of such goods within the inn; and shall furthermore have followed the directions which such innkeeper or his representative may have given them with respect to the care of and vigilance over such goods. No liability shall attach in case of robbery with violence against or intimidation against or intimidation of persons unless committed by the innkeeper's employees. ART. 103. Subsidiary civil liability of other persons . The subsidiary liability established in the next preceding article shall also apply to employers, teachers, persons, and corporations engaged in any kind of industry for felonies committed by their servants, pupils, workmen, apprentices, or employees in the discharge of their duties. xxx xxx xxx ART. 365. Imprudence and negligence. Any person who, by reckless imprudence, shall commit any act which, had it been intentional, would constitute a grave felony, shall suffer the penalty of arresto mayor in its maximum period to prision correccional in its minimum period; if it would have constituted a less grave felony, the penalty of arresto mayor in its minimum and medium periods shall be imposed. Any person who, by simple imprudence or negligence, shall commit an act which would otherwise constitute a grave felony, shall suffer the penalty of arresto mayor in its medium and maximum periods; if it would have constituted a less serious felony, the penalty of arresto mayor in its minimum period shall be imposed." It will thus be seen that while the terms of articles 1902 of the Civil Code seem to be broad enough to cover the driver's negligence in the instant case, nevertheless article 1093 limits cuasi-delitos to acts or omissions "not punishable by law." But inasmuch as article 365 of the Revised Penal Code punishes not only reckless but even simple imprudence or negligence, the fault or negligence under article 1902 of the Civil Code has apparently been crowded out. It is this overlapping that makes the "confusion worse confounded." However, a closer study shows that such a concurrence of scope in regard to negligent acts does not destroy the distinction between the civil liability arising from a crime and the responsibility for cuasi-delitos or culpa extra-contractual. The same negligent act causing damages may produce civil liability arising from a crime under article 100 of the Revised Penal Code, or create an action for cuasi-delito or culpa extracontractual under articles 1902-1910 of the Civil Code. The individuality of cuasi-delito or culpa extra-contractual looms clear and unmistakable. This legal institution is of ancient lineage, one of its early ancestors being the Lex Aquilia in the Roman Law. In fact, in Spanish legal terminology, this responsibility is often referred to as culpa aquiliana. The Partidas also contributed to the genealogy of the present fault or negligence under the Civil Code; for instance, Law 6, Title 15, of Partida 7, says: "Tenudo es de fazer emienda, porque, como quier que el non fizo a sabiendas en dao al otro, pero acaescio por su culpa." The distinctive nature of cuasi-delitos survives in the Civil Code. According to article 1089, one of the five sources of obligations is this legal institution of cuasi-delito or culpa extra-contractual: "los actos . . . en que intervenga cualquier genero de culpa o negligencia." Then article 1093 provides that this kind of obligation shall be governed by Chapter II of Title XVI of Book IV, meaning articles 1902-0910. This portion of the Civil Code is exclusively devoted to the legal institution of culpa aquiliana.

Some of the differences between crimes under the Penal Code and the culpa aquiliana or cuasi-delito under the Civil Code are: 1. That crimes affect the public interest, while cuasi-delitos are only of private concern. 2. That, consequently, the Penal Code punishes or corrects the criminal act, while the Civil Code, by means of indemnification, merely repairs the damage. 3. That delicts are not as broad as quasi-delicts, because the former are punished only if there is a penal law clearly covering them, while the latter, cuasi-delitos, include all acts in which "any king of fault or negligence intervenes." However, it should be noted that not all violations of the penal law produce civil responsibility, such as begging in contravention of ordinances, violation of the game laws, infraction of the rules of traffic when nobody is hurt. (See Colin and Capitant, "Curso Elemental de Derecho Civil," Vol. 3, p. 728.) Let us now ascertain what some jurists say on the separate existence of quasi-delicts and the employer's primary and direct liability under article 1903 of the Civil Code. Dorado Montero in his essay on "Responsibilidad" in the "Enciclopedia Juridica Espaola" (Vol. XXVII, p. 414) says: El concepto juridico de la responsabilidad civil abarca diversos aspectos y comprende a diferentes personas. Asi, existe una responsabilidad civil propiamente dicha, que en ningun casl lleva aparejada responsabilidad criminal alguna, y otra que es consecuencia indeclinable de la penal que nace de todo delito o falta." The juridical concept of civil responsibility has various aspects and comprises different persons. Thus, there is a civil responsibility, properly speaking, which in no case carries with it any criminal responsibility, and another which is a necessary consequence of the penal liability as a result of every felony or misdemeanor." Maura, an outstanding authority, was consulted on the following case: There had been a collision between two trains belonging respectively to the Ferrocarril Cantabrico and the Ferrocarril del Norte. An employee of the latter had been prosecuted in a criminal case, in which the company had been made a party as subsidiarily responsible in civil damages. The employee had been acquitted in the criminal case, and the employer, the Ferrocarril del Norte, had also been exonerated. The question asked was whether the Ferrocarril Cantabrico could still bring a civil action for damages against the Ferrocarril del Norte. Maura's opinion was in the affirmative, stating in part (Maura, Dictamenes, Vol. 6, pp. 511-513): Quedando las cosas asi, a proposito de la realidad pura y neta de los hechos, todavia menos parece sostenible que exista cosa juzgada acerca de la obligacion civil de indemnizar los quebrantos y menoscabos inferidos por el choque de los trenes. El titulo en que se funda la accion para demandar el resarcimiento, no puede confundirse con las responsabilidades civiles nacidas de delito, siquiera exista en este, sea el cual sea, una culpa rodeada de notas agravatorias que motivan sanciones penales, mas o menos severas. La lesion causada por delito o falta en los derechos civiles, requiere restituciones, reparaciones o indemnizaciones, que cual la pena misma ataen al orden publico; por tal motivo vienen encomendadas, de ordinario, al Ministerio Fiscal; y claro es que si por esta via se enmiendan los quebrantos y menoscabos, el agraviado excusa procurar el ya conseguido desagravio; pero esta eventual coincidencia de los efectos, no borra la diversidad originaria de las acciones civiles para pedir indemnizacion. Estas, para el caso actual (prescindiendo de culpas contractuales, que no vendrian a cuento y que tiene otro regimen), dimanan, segun el articulo 1902 del Codigo Civil, de toda accion u omision, causante de daos o perjuicios, en que intervenga culpa o negligencia. Es trivial que acciones semejantes son ejercitadas ante los Tribunales de lo civil cotidianamente, sin que la Justicia punitiva tenga que mezclarse en los asuntos. Los articulos 18 al 21 y 121 al 128 del Codigo Penal, atentos al espiritu y a los fines sociales y politicos del mismo, desenvuelven y ordenan la materia de responsabilidades civiles nacidas de delito, en terminos separados del regimen por ley comun de la culpa que se denomina aquiliana, por alusion a precedentes legislativos del Corpus Juris. Seria intempestivo un paralelo entre aquellas ordenaciones, y la de la obligacion de indemnizar a titulo de culpa civil; pero viene al caso y es necesaria una de las diferenciaciones que en el tal paralelo se notarian. Los articulos 20 y 21 del Codigo Penal, despues de distribuir a su modo las responsabilidades civiles, entre los que sean por diversos conceptos culpables del delito o falta, las hacen extensivas a las empresas y los establecimientos al servicio de los cuales estan los delincuentes; pero con caracter subsidiario, o sea, segun el texto literal, en defecto de los que sean responsables criminalmente. No coincide en ello el Codigo Civil, cuyo articulo 1903, dice; La obligacion que impone el articulo anterior es exigible, no solo por los actos y omisiones propios, sino por los de aquellas personas de quienes se debe responder; personas en la enumeracion de las cuales figuran los dependientes y empleados de los establecimientos o empresas, sea por actos del servicio, sea con ocasion de sus funciones. Por esto acontece, y se observa en la jurisprudencia, que las empresas, despues de intervenir en las causas criminales con el caracter subsidiario de su

responsabilidad civil por razon del delito, son demandadas y condenadas directa y aisladamente, cuando se trata de la obligacion, ante los tribunales civiles. Siendo como se ve, diverso el titulo de esta obligacion, y formando verdadero postulado de nuestro regimen judicial la separacion entre justicia punitiva y tribunales de lo civil, de suerte que tienen unos y otros normas de fondo en distintos cuerpos legales, y diferentes modos de proceder, habiendose, por aadidura, abstenido de asistir al juicio criminal la Compaia del Ferrocarril Cantabrico, que se reservo ejercitar sus acciones, parece innegable que la de indemnizacion por los daos y perjuicios que le irrogo el choque, no estuvo sub judice ante el Tribunal del Jurado, ni fue sentenciada, sino que permanecio intacta, al pronunciarse el fallo de 21 de marzo. Aun cuando el veredicto no hubiese sido de inculpabilidad, mostrose mas arriba, que tal accion quedaba legitimamente reservada para despues del proceso; pero al declararse que no existio delito, ni responsabilidad dimanada de delito, materia unicasobre que tenian jurisdiccion aquellos juzgadores, se redobla el motivo para la obligacion civil ex lege, y se patentiza mas y mas que la accion para pedir su cumplimiento permanece incolume, extraa a la cosa juzgada. As things are, apropos of the reality pure and simple of the facts, it seems less tenable that there should be res judicata with regard to the civil obligation for damages on account of the losses caused by the collision of the trains. The title upon which the action for reparation is based cannot be confused with the civil responsibilities born of a crime, because there exists in the latter, whatever each nature, a culpasurrounded with aggravating aspects which give rise to penal measures that are more or less severe. The injury caused by a felony or misdemeanor upon civil rights requires restitutions, reparations, or indemnifications which, like the penalty itself, affect public order; for this reason, they are ordinarily entrusted to the office of the prosecuting attorney; and it is clear that if by this means the losses and damages are repaired, the injured party no longer desires to seek another relief; but this coincidence of effects does not eliminate the peculiar nature of civil actions to ask for indemnity. Such civil actions in the present case (without referring to contractual faults which are not pertinent and belong to another scope) are derived, according to article 1902 of the Civil Code, from every act or omission causing losses and damages in which culpa or negligence intervenes. It is unimportant that such actions are every day filed before the civil courts without the criminal courts interfering therewith. Articles 18 to 21 and 121 to 128 of the Penal Code, bearing in mind the spirit and the social and political purposes of that Code, develop and regulate the matter of civil responsibilities arising from a crime, separately from the regime under common law, of culpa which is known as aquiliana, in accordance with legislative precedent of the Corpus Juris. It would be unwarranted to make a detailed comparison between the former provisions and that regarding the obligation to indemnify on account of civil culpa; but it is pertinent and necessary to point out to one of such differences. Articles 20 and 21 of the Penal Code, after distriburing in their own way the civil responsibilities among those who, for different reasons, are guilty of felony or misdemeanor, make such civil responsibilities applicable to enterprises and establishments for which the guilty parties render service, but with subsidiary character, that is to say, according to the wording of the Penal Code, in default of those who are criminally responsible . In this regard, the Civil Code does not coincide because article 1903 says: "The obligation imposed by the next preceding article is demandable, not only for personal acts and omissions, but also for those of persons for whom another is responsible." Among the persons enumerated are the subordinates and employees of establishments or enterprises, either for acts during their service or on the occasion of their functions. It is for this reason that it happens, and it is so observed in judicial decisions, that the companies or enterprises, after taking part in the criminal cases because of their subsidiary civil responsibility by reason of the crime, are sued and sentenced directly and separately with regard to theobligation, before the civil courts. Seeing that the title of this obligation is different, and the separation between punitive justice and the civil courts being a true postulate of our judicial system, so that they have different fundamental norms in different codes, as well as different modes of procedure, and inasmuch as the Compaa del Ferrocarril Cantabrico has abstained from taking part in the criminal case and has reserved the right to exercise its actions, it seems undeniable that the action for indemnification for the losses and damages caused to it by the collision was not sub judice before the Tribunal del Jurado, nor was it the subject of a sentence, but it remained intact when the decision of March 21 was rendered. Even if the verdict had not been that of acquittal, it has already been shown that such action had been legitimately reserved till after the criminal prosecution; but because of the declaration of the non-existence of the felony and the non-existence of the responsibility arising from the crime, which was the sole subject matter upon which the Tribunal del Jurado had jurisdiction, there is greater reason for the civil obligation ex lege, and it becomes clearer that the action for its enforcement remain intact and is not res judicata.

Laurent, a jurist who has written a monumental work on the French Civil Code, on which the Spanish Civil Code is largely based and whose provisions on cuasi-delito or culpa extra-contractual are similar to those of the Spanish Civil Code, says, referring to article 1384 of the French Civil Code which corresponds to article 1903, Spanish Civil Code: The action can be brought directly against the person responsible (for another), without including the author of the act. The action against the principal is accessory in the sense that it implies the existence of a prejudicial act committed by the employee, but it is not subsidiary in the sense that it can not be instituted till after the judgment against the author of the act or at least, that it is subsidiary to the principal action; the action for responsibility (of the employer) is in itself a principal action. (Laurent, Principles of French Civil Law, Spanish translation, Vol. 20, pp. 734-735.) Amandi, in his "Cuestionario del Codigo Civil Reformado" (Vol. 4, pp. 429, 430), declares that the responsibility of the employer is principal and not subsidiary. He writes: Cuestion 1. La responsabilidad declarada en el articulo 1903 por las acciones u omisiones de aquellas personas por las que se debe responder, es subsidiaria? es principal? Para contestar a esta pregunta es necesario saber, en primer lugar, en que se funda el precepto legal. Es que realmente se impone una responsabilidad por una falta ajena? Asi parece a primera vista; pero semejante afirmacion seria contraria a la justicia y a la maxima universal, segun la que las faltas son personales, y cada uno responde de aquellas que le son imputables. La responsabilidad de que tratamos se impone con ocasion de un delito o culpa, pero no por causa de ellos, sino por causa del causi delito, esto es, de la imprudencia o de la negligencia del padre, del tutor, del dueo o director del establecimiento, del maestro, etc. Cuando cualquiera de las personas que enumera el articulo citado (menores de edad, incapacitados, dependientes, aprendices) causan un dao, la ley presume que el padre, el tutor, el maestro, etc., han cometido una falta de negligencia para prevenir o evitar el dao. Esta falta es la que la ley castiga. No hay, pues, responsabilidad por un hecho ajeno, sino en la apariencia; en realidad la responsabilidad se exige por un hecho propio. La idea de que esa responsabilidad sea subsidiaria es, por lo tanto, completamente inadmisible. Question No. 1. Is the responsibility declared in article 1903 for the acts or omissions of those persons for who one is responsible, subsidiary or principal? In order to answer this question it is necessary to know, in the first place, on what the legal provision is based. Is it true that there is a responsibility for the fault of another person? It seems so at first sight; but such assertion would be contrary to justice and to the universal maxim that all faults are personal, and that everyone is liable for those faults that can be imputed to him. The responsibility in question is imposed on the occasion of a crime or fault, but not because of the same, but because of the cuasi-delito, that is to say, the imprudence or negligence of the father, guardian, proprietor or manager of the establishment, of the teacher, etc. Whenever anyone of the persons enumerated in the article referred to (minors, incapacitated persons, employees, apprentices) causes any damage, the law presumes that the father, guardian, teacher, etc. have committed an act of negligence in not preventing or avoiding the damage. It is this fault that is condemned by the law. It is, therefore, only apparent that there is a responsibility for the act of another; in reality the responsibility exacted is for one's own act. The idea that such responsibility is subsidiary is, therefore, completely inadmissible. Oyuelos, in his "Digesto: Principios, Doctrina y Jurisprudencia, Referentes al Codigo Civil Espaol," says in Vol. VII, p. 743: Es decir, no responde de hechos ajenos, porque se responde solo de su propia culpa, doctrina del articulo 1902; mas por excepcion, se responde de la ajena respecto de aquellas personas con las que media algun nexo o vinculo, que motiva o razona la responsabilidad. Esta responsabilidad, es directa o es subsidiaria? En el orden penal, el Codigo de esta clase distingue entre menores e incapacitados y los demas, declarando directa la primera (articulo 19) y subsidiaria la segunda (articulos 20 y 21); pero en el orden civil, en el caso del articulo 1903, ha de entenderse directa, por el tenor del articulo que impone la responsabilidad precisamente "por los actos de aquellas personas de quienes se deba responder." That is to say, one is not responsible for the acts of others, because one is liable only for his own faults, this being the doctrine of article 1902; but, by exception, one is liable for the acts of those persons with whom there is a bond or tie which gives rise to the responsibility. Is this responsibility direct or subsidiary? In the order of the penal law, the Penal Code distinguishes between minors and incapacitated persons on the one hand, and other persons on the other, declaring that the responsibility for the former is direct (article 19), and for the latter, subsidiary (articles 20 and 21); but in the scheme of the civil law, in the case of article 1903, the responsibility should be understood as direct, according to the tenor of that articles, for precisely it imposes responsibility "for the acts of those persons for whom one should be responsible." Coming now to the sentences of the Supreme Tribunal of Spain, that court has upheld the principles above set forth: that a quasi-delict or culpa extra-contractual is a separate and distinct legal institution, independent from the civil responsibility

arising from criminal liability, and that an employer is, under article 1903 of the Civil Code, primarily and directly responsible for the negligent acts of his employee. One of the most important of those Spanish decisions is that of October 21, 1910. In that case, Ramon Lafuente died as the result of having been run over by a street car owned by the "compaia Electric Madrilea de Traccion." The conductor was prosecuted in a criminal case but he was acquitted. Thereupon, the widow filed a civil action against the street car company, paying for damages in the amount of 15,000 pesetas. The lower court awarded damages; so the company appealed to the Supreme Tribunal, alleging violation of articles 1902 and 1903 of the Civil Code because by final judgment the non-existence of fault or negligence had been declared. The Supreme Court of Spain dismissed the appeal, saying: Considerando que el primer motivo del recurso se funda en el equivocado supuesto de que el Tribunal a quo, al condonar a la compaia Electrica Madrilea al pago del dao causado con la muerte de Ramon La fuente Izquierdo, desconoce el valor y efectos juridicos de la sentencia absolutoria deictada en la causa criminal que se siguio por el mismo hecho, cuando es lo cierto que de este han conocido las dos jurisdicciones bajo diferentes as pectos, y como la de lo criminal declrao dentro de los limites de su competencia que el hecho de que se trata no era constitutivo de delito por no haber mediado descuido o negligencia graves, lo que no excluye, siendo este el unico fundamento del fallo absolutorio, el concurso de la culpa o negligencia no califacadas, fuente de obligaciones civiles segun el articulo 1902 del Codigo, y que alcanzan, segun el 1903, netre otras perosnas, a los Directores de establecimientos o empresas por los daos causados por sus dependientes en determinadas condiciones, es manifesto que la de lo civil, al conocer del mismo hehco baho este ultimo aspecto y al condenar a la compaia recurrente a la indemnizacion del dao causado por uno de sus empleados, lejos de infringer los mencionados textos, en relacion con el articulo 116 de la Ley de Enjuciamiento Criminal, se ha atenido estrictamente a ellos, sin invadir atribuciones ajenas a su jurisdiccion propia, ni contrariar en lo mas minimo el fallo recaido en la causa. Considering that the first ground of the appeal is based on the mistaken supposition that the trial court, in sentencing the Compaia Madrilea to the payment of the damage caused by the death of Ramon Lafuente Izquierdo, disregards the value and juridical effects of the sentence of acquittal rendered in the criminal case instituted on account of the same act, when it is a fact that the two jurisdictions had taken cognizance of the same act in its different aspects, and as the criminal jurisdiction declared within the limits of its authority that the act in question did not constitute a felony because there was no grave carelessness or negligence, and this being the only basis of acquittal, it does no exclude the co-existence of fault or negligence which is not qualified, and is a source of civil obligations according to article 1902 of the Civil Code , affecting, in accordance with article 1903, among other persons, the managers of establishments or enterprises by reason of the damages caused by employees under certain conditions, it is manifest that the civil jurisdiccion in taking cognizance of the same act in this latter aspect and in ordering the company, appellant herein, to pay an indemnity for the damage caused by one of its employees, far from violating said legal provisions, in relation with article 116 of the Law of Criminal Procedure, strictly followed the same, without invading attributes which are beyond its own jurisdiction, and without in any way contradicting the decision in that cause . (Emphasis supplied.) It will be noted, as to the case just cited: First. That the conductor was not sued in a civil case, either separately or with the street car company. This is precisely what happens in the present case: the driver, Fontanilla, has not been sued in a civil action, either alone or with his employer. Second. That the conductor had been acquitted of grave criminal negligence, but the Supreme Tribunal of Spain said that this did not exclude the co-existence of fault or negligence, which is not qualified, on the part of the conductor, under article 1902 of the Civil Code. In the present case, the taxi driver was found guilty of criminal negligence, so that if he had even sued for his civil responsibility arising from the crime, he would have been held primarily liable for civil damages, and Barredo would have been held subsidiarily liable for the same. But the plaintiffs are directly suing Barredo, on his primary responsibility because of his own presumed negligence which he did not overcome under article 1903. Thus, there were two liabilities of Barredo: first, the subsidiary one because of the civil liability of the taxi driver arising from the latter's criminal negligence; and, second, Barredo's primary liability as an employer under article 1903. The plaintiffs were free to choose which course to take, and they preferred the second remedy. In so doing, they were acting within their rights. It might be observed in passing, that the plaintiff choose the more expeditious and effective method of relief, because Fontanilla was either in prison, or had just been released, and besides, he was probably without property which might be seized in enforcing any judgment against him for damages. Third. That inasmuch as in the above sentence of October 21, 1910, the employer was held liable civilly, notwithstanding the acquittal of the employee (the conductor) in a previous criminal case, with greater reason should Barredo, the

employer in the case at bar, be held liable for damages in a civil suit filed against him because his taxi driver had been convicted. The degree of negligence of the conductor in the Spanish case cited was less than that of the taxi driver, Fontanilla, because the former was acquitted in the previous criminal case while the latter was found guilty of criminal negligence and was sentenced to an indeterminate sentence of one year and one day to two years of prision correccional. (See also Sentence of February 19, 1902, which is similar to the one above quoted.) In the Sentence of the Supreme Court of Spain, dated February 14, 1919, an action was brought against a railroad company for damages because the station agent, employed by the company, had unjustly and fraudulently, refused to deliver certain articles consigned to the plaintiff. The Supreme Court of Spain held that this action was properly under article 1902 of the Civil Code, the court saying: Considerando que la sentencia discutida reconoce, en virtud de los hechos que consigna con relacion a las pruebas del pleito: 1., que las expediciones facturadas por la compaia ferroviaria a la consignacion del actor de las vasijas vacias que en su demanda relacionan tenian como fin el que este las devolviera a sus remitentes con vinos y alcoholes; 2., que llegadas a su destino tales mercanias no se quisieron entregar a dicho consignatario por el jefe de la estacion sin motivo justificado y con intencion dolosa, y 3., que la falta de entrega de estas expediciones al tiempo de reclamarlas el demandante le originaron daos y perjuicios en cantidad de bastante importancia como expendedor al por mayor que era de vinos y alcoholes por las ganancias que dejo de obtener al verse privado de servir los pedidos que se le habian hecho por los remitentes en los envases: Considerando que sobre esta base hay necesidad de estimar los cuatro motivos que integran este recurso, porque la demanda inicial del pleito a que se contrae no contiene accion que nazca del incumplimiento del contrato de transporte, toda vez que no se funda en el retraso de la llegada de las mercancias ni de ningun otro vinculo contractual entre las partes contendientes, careciendo, por tanto, de aplicacion el articulo 371 del Codigo de Comercio, en que principalmente descansa el fallo recurrido, sino que se limita a pedir la reparaction de los daos y perjuicios producidos en el patrimonio del actor por la injustificada y dolosa negativa del porteador a la entrega de las mercancias a su nombre consignadas, segun lo reconoce la sentencia, y cuya responsabilidad esta claramente sancionada en el articulo 1902 del Codigo Civil, que obliga por el siguiente a la Compaia demandada como ligada con el causante de aquellos por relaciones de caracter economico y de jurarquia administrativa. Considering that the sentence, in question recognizes, in virtue of the facts which it declares, in relation to the evidence in the case: (1) that the invoice issued by the railroad company in favor of the plaintiff contemplated that the empty receptacles referred to in the complaint should be returned to the consignors with wines and liquors; (2) that when the said merchandise reached their destination, their delivery to the consignee was refused by the station agent without justification and with fraudulent intent, and (3) that the lack of delivery of these goods when they were demanded by the plaintiff caused him losses and damages of considerable importance, as he was a wholesale vendor of wines and liquors and he failed to realize the profits when he was unable to fill the orders sent to him by the consignors of the receptacles: Considering that upon this basis there is need of upholding the four assignments of error, as the original complaint did not contain any cause of action arising from non-fulfillment of a contract of transportation, because the action was not based on the delay of the goods nor on any contractual relation between the parties litigant and, therefore, article 371 of the Code of Commerce, on which the decision appealed from is based, is not applicable; but it limits to asking for reparation for losses and damages produced on the patrimony of the plaintiff on account of the unjustified and fraudulent refusal of the carrier to deliver the goods consigned to the plaintiff as stated by the sentence, and the carrier's responsibility is clearly laid down in article 1902 of the Civil Code which binds, in virtue of the next article, the defendant company, because the latter is connected with the person who caused the damage by relations of economic character and by administrative hierarchy. (Emphasis supplied.) The above case is pertinent because it shows that the same act may come under both the Penal Code and the Civil Code. In that case, the action of the agent was unjustified and fraudulent and therefore could have been the subject of a criminal action. And yet, it was held to be also a proper subject of a civil action under article 1902 of the Civil Code. It is also to be noted that it was the employer and not the employee who was being sued. Let us now examine the cases previously decided by this Court. In the leading case of Rakes vs. Atlantic Gulf and Pacific Co. (7 Phil., 359, 362-365 [year 1907]), the trial court awarded damages to the plaintiff, a laborer of the defendant, because the latter had negligently failed to repair a tramway in consequence of which the rails slid off while iron was being transported, and caught the plaintiff whose leg was broken. This Court held:

It is contended by the defendant, as its first defense to the action that the necessary conclusion from these collated laws is that the remedy for injuries through negligence lies only in a criminal action in which the official criminally responsible must be made primarily liable and his employer held only subsidiarily to him. According to this theory the plaintiff should have procured the arrest of the representative of the company accountable for not repairing the track, and on his prosecution a suitable fine should have been imposed, payable primarily by him and secondarily by his employer. This reasoning misconceived the plan of the Spanish codes upon this subject. Article 1093 of the Civil Code makes obligations arising from faults or negligence not punished by the law, subject to the provisions of Chapter II of Title XVI. Section 1902 of that chapter reads: "A person who by an act or omission causes damage to another when there is fault or negligence shall be obliged to repair the damage so done. "SEC. 1903. The obligation imposed by the preceeding article is demandable, not only for personal acts and omissions, but also for those of the persons for whom they should be responsible. "The father, and on his death or incapacity, the mother, is liable for the damages caused by the minors who live with them. xxx xxx xxx "Owners or directors of an establishment or enterprise are equally liable for the damages caused by their employees in the service of the branches in which the latter may be employed or in the performance of their duties. xxx xxx xxx "The liability referred to in this article shall cease when the persons mentioned therein prove that they employed all the diligence of a good father of a family to avoid the damage." As an answer to the argument urged in this particular action it may be sufficient to point out that nowhere in our general statutes is the employer penalized for failure to provide or maintain safe appliances for his workmen. His obligation therefore is one 'not punished by the laws' and falls under civil rather than criminal jurisprudence. But the answer may be a broader one. We should be reluctant, under any conditions, to adopt a forced construction of these scientific codes, such as is proposed by the defendant, that would rob some of these articles of effect, would shut out litigants against their will from the civil courts, would make the assertion of their rights dependent upon the selection for prosecution of the proper criminal offender, and render recovery doubtful by reason of the strict rules of proof prevailing in criminal actions. Even if these articles had always stood alone, such a construction would be unnecessary, but clear light is thrown upon their meaning by the provisions of the Law of Criminal Procedure of Spain ( Ley de Enjuiciamiento Criminal), which, though never in actual force in these Islands, was formerly given a suppletory or explanatory effect. Under article 111 of this law, both classes of action, civil and criminal, might be prosecuted jointly or separately, but while the penal action was pending the civil was suspended. According to article 112, the penal action once started, the civil remedy should be sought therewith, unless it had been waived by the party injured or been expressly reserved by him for civil proceedings for the future. If the civil action alone was prosecuted, arising out of a crime that could be enforced only on private complaint, the penal action thereunder should be extinguished. These provisions are in harmony with those of articles 23 and 133 of our Penal Code on the same subject. An examination of this topic might be carried much further, but the citation of these articles suffices to show that the civil liability was not intended to be merged in the criminal nor even to be suspended thereby, except as expressly provided in the law. Where an individual is civilly liable for a negligent act or omission, it is not required that the injured party should seek out a third person criminally liable whose prosecution must be a condition precedent to the enforcement of the civil right. Under article 20 of the Penal Code the responsibility of an employer may be regarded as subsidiary in respect of criminal actions against his employees only while they are in process of prosecution, or in so far as they determine the existence of the criminal act from which liability arises, and his obligation under the civil law and its enforcement in the civil courts is not barred thereby unless by the election of the injured person. Inasmuch as no criminal proceeding had been instituted, growing our of the accident in question, the provisions of the Penal Code can not affect this action. This construction renders it unnecessary to finally determine here whether this subsidiary civil liability in penal actions has survived the laws that fully regulated it or has been abrogated by the American civil and criminal procedure now in force in the Philippines. The difficulty in construing the articles of the code above cited in this case appears from the briefs before us to have arisen from the interpretation of the words of article 1093, "fault or negligence not punished by law," as applied to the comprehensive definition of offenses in articles 568 and 590 of the Penal Code. It has been shown that the liability of an employer arising out of his relation to his employee who is the offender is not to be regarded as derived from negligence

punished by the law, within the meaning of articles 1902 and 1093. More than this, however, it cannot be said to fall within the class of acts unpunished by the law, the consequence of which are regulated by articles 1902 and 1903 of the Civil Code. The acts to which these articles are applicable are understood to be those not growing out of pre-existing duties of the parties to one another. But where relations already formed give rise to duties, whether springing from contract or quasi contract, then breaches of those duties are subject to articles 1101, 1103, and 1104 of the same code. A typical application of this distinction may be found in the consequences of a railway accident due to defective machinery supplied by the employer. His liability to his employee would arise out of the contract of employment, that to the passengers out of the contract for passage, while that to the injured bystander would originate in the negligent act itself. In Manzanares vs. Moreta, 38 Phil., 821 (year 1918), the mother of the 8 of 9-year-old child Salvador Bona brought a civil action against Moreta to recover damages resulting from the death of the child, who had been run over by an automobile driven and managed by the defendant. The trial court rendered judgment requiring the defendant to pay the plaintiff the sum of P1,000 as indemnity: This Court in affirming the judgment, said in part: If it were true that the defendant, in coming from the southern part of Solana Street, had to stop his auto before crossing Real Street, because he had met vehicles which were going along the latter street or were coming from the opposite direction along Solana Street, it is to be believed that, when he again started to run his auto across said Real Street and to continue its way along Solana Street northward, he should have adjusted the speed of the auto which he was operating until he had fully crossed Real Street and had completely reached a clear way on Solana Street. But, as the child was run over by the auto precisely at the entrance of Solana Street, this accident could not have occurred if the auto had been running at a slow speed, aside from the fact that the defendant, at the moment of crossing Real Street and entering Solana Street, in a northward direction, could have seen the child in the act of crossing the latter street from the sidewalk on the right to that on the left, and if the accident had occurred in such a way that after the automobile had run over the body of the child, and the child's body had already been stretched out on the ground, the automobile still moved along a distance of about 2 meters, this circumstance shows the fact that the automobile entered Solana Street from Real Street, at a high speed without the defendant having blown the horn. If these precautions had been taken by the defendant, the deplorable accident which caused the death of the child would not have occurred. It will be noticed that the defendant in the above case could have been prosecuted in a criminal case because his negligence causing the death of the child was punishable by the Penal Code. Here is therefore a clear instance of the same act of negligence being a proper subject-matter either of a criminal action with its consequent civil liability arising from a crime or of an entirely separate and independent civil action for fault or negligence under article 1902 of the Civil Code. Thus, in this jurisdiction, the separate individually of a cuasi-delito or culpa aquiliana under the Civil Code has been fully and clearly recognized, even with regard to a negligent act for which the wrongdoer could have been prosecuted and convicted in a criminal case and for which, after such a conviction, he could have been sued for this civil liability arising from his crime. Years later (in 1930) this Court had another occasion to apply the same doctrine. In Bernal and Enverso vs. House and Tacloban Electric & Ice Plant, Ltd., 54 Phil., 327, the parents of the five-year-old child, Purificacion Bernal, brought a civil action to recover damages for the child's death as a result of burns caused by the fault and negligence of the defendants. On the evening of April 10, 1925, the Good Friday procession was held in Tacloban, Leyte. Fortunata Enverso with her daughter Purificacion Bernal had come from another municipality to attend the same. After the procession the mother and the daughter with two others were passing along Gran Capitan Street in front of the offices of the Tacloban Electric & Ice Plant, Ltd., owned by defendants J. V. House, when an automobile appeared from the opposite direction. The little girl, who was slightly ahead of the rest, was so frightened by the automobile that she turned to run, but unfortunately she fell into the street gutter where hot water from the electric plant was flowing. The child died that same night from the burns. The trial courts dismissed the action because of the contributory negligence of the plaintiffs. But this Court held, on appeal, that there was no contributory negligence, and allowed the parents P1,000 in damages from J. V. House who at the time of the tragic occurrence was the holder of the franchise for the electric plant. This Court said in part: Although the trial judge made the findings of fact hereinbefore outlined, he nevertheless was led to order the dismissal of the action because of the contributory negligence of the plaintiffs. It is from this point that a majority of the court depart from the stand taken by the trial judge. The mother and her child had a perfect right to be on the principal street of Tacloban, Leyte, on the evening when the religious procession was held. There was nothing abnormal in allowing the child to run along a few paces in advance of the mother. No one could foresee the coincidence of an automobile appearing and of a frightened child running and falling into a ditch filled with hot water. The doctrine announced in the much debated

case of Rakes vs. Atlantic Gulf and Pacific Co. ([1907]), 7 Phil., 359), still rule. Article 1902 of the Civil Code must again be enforced. The contributory negligence of the child and her mother, if any, does not operate as a bar to recovery, but in its strictest sense could only result in reduction of the damages. It is most significant that in the case just cited, this Court specifically applied article 1902 of the Civil Code. It is thus that although J. V. House could have been criminally prosecuted for reckless or simple negligence and not only punished but also made civilly liable because of his criminal negligence, nevertheless this Court awarded damages in an independent civil action for fault or negligence under article 1902 of the Civil Code. In Bahia vs. Litonjua and Leynes (30 Phil., 624 [year 1915), the action was for damages for the death of the plaintiff's daughter alleged to have been caused by the negligence of the servant in driving an automobile over the child. It appeared that the cause of the mishap was a defect in the steering gear. The defendant Leynes had rented the automobile from the International Garage of Manila, to be used by him in carrying passengers during the fiesta of Tuy, Batangas. Leynes was ordered by the lower court to pay P1,000 as damages to the plaintiff. On appeal this Court reversed the judgment as to Leynes on the ground that he had shown that the exercised the care of a good father of a family, thus overcoming the presumption of negligence under article 1903. This Court said: As to selection, the defendant has clearly shown that he exercised the care and diligence of a good father of a family. He obtained the machine from a reputable garage and it was, so far as appeared, in good condition. The workmen were likewise selected from a standard garage, were duly licensed by the Government in their particular calling, and apparently thoroughly competent. The machine had been used but a few hours when the accident occurred and it is clear from the evidence that the defendant had no notice, either actual or constructive, of the defective condition of the steering gear. The legal aspect of the case was discussed by this Court thus: Article 1903 of the Civil Code not only establishes liability in cases of negligence, but also provides when the liability shall cease. It says: "The liability referred to in this article shall cease when the persons mentioned therein prove that they employed all the diligence of a good father of a family to avoid the damage." From this article two things are apparent: (1) That when an injury is caused by the negligence of a servant or employee there instantly arises a presumption of law that there was negligence on the part of the matter or employer either in the selection of the servant or employee, or in supervision over him after the selection, or both; and (2) that presumption is juris tantum and not juris et de jure, and consequently, may be rebutted. It follows necessarily that if the employer shows to the satisfaction of the court that in selection and supervision he has exercised the care and diligence of a good father of a family, the presumption is overcome and he is relieve from liability. This theory bases the responsibility of the master ultimately on his own negligence and not on that of his servant. The doctrine of the case just cited was followed by this Court in Cerf vs. Medel (33 Phil., 37 [year 1915]). In the latter case, the complaint alleged that the defendant's servant had so negligently driven an automobile, which was operated by defendant as a public vehicle, that said automobile struck and damaged the plaintiff's motorcycle. This Court, applying article 1903 and following the rule in Bahia vs. Litonjua and Leynes, said in part (p. 41) that: The master is liable for the negligent acts of his servant where he is the owner or director of a business or enterprise and the negligent acts are committed while the servant is engaged in his master's employment as such owner. Another case which followed the decision in Bahia vs. Litonjua and Leynes was Cuison vs. Norton & Harrison Co., 55 Phil., 18 (year 1930). The latter case was an action for damages brought by Cuison for the death of his seven-year-old son Moises. The little boy was on his way to school with his sister Marciana. Some large pieces of lumber fell from a truck and pinned the boy underneath, instantly killing him. Two youths, Telesforo Binoya and Francisco Bautista, who were working for Ora, an employee of defendant Norton & Harrison Co., pleaded guilty to the crime of homicide through reckless negligence and were sentenced accordingly. This Court, applying articles 1902 and 1903, held: The basis of civil law liability is not respondent superior but the relationship of pater familias. This theory bases the liability of the master ultimately on his own negligence and not on that of his servant. (Bahia vs.Litonjua and Leynes [1915], 30 Phil., 624; Cangco vs. Manila Railroad Co. [1918], 38 Phil., 768.) In Walter A. Smith & Co. vs. Cadwallader Gibson Lumber Co., 55 Phil., 517 (year 1930) the plaintiff brought an action for damages for the demolition of its wharf, which had been struck by the steamer Helen C belonging to the defendant. This Court held (p. 526): The evidence shows that Captain Lasa at the time the plaintiff's wharf collapsed was a duly licensed captain, authorized to navigate and direct a vessel of any tonnage, and that the appellee contracted his services because of his reputation as a

captain, according to F. C. Cadwallader. This being so, we are of the opinion that the presumption of liability against the defendant has been overcome by the exercise of the care and diligence of a good father of a family in selecting Captain Lasa, in accordance with the doctrines laid down by this court in the cases cited above, and the defendant is therefore absolved from all liability. It is, therefore, seen that the defendant's theory about his secondary liability is negatived by the six cases above set forth. He is, on the authority of these cases, primarily and directly responsible in damages under article 1903, in relation to article 1902, of the Civil Code. Let us now take up the Philippine decisions relied upon by the defendant. We study first, City of Manila vs. Manila Electric Co., 52 Phil., 586 (year 1928). A collision between a truck of the City of Manila and a street car of the Manila Electric Co. took place on June 8, 1925. The truck was damaged in the amount of P1,788.27. Sixto Eustaquio, the motorman, was prosecuted for the crime of damage to property and slight injuries through reckless imprudence. He was found guilty and sentenced to pay a fine of P900, to indemnify the City of Manila for P1,788.27, with subsidiary imprisonment in case of insolvency. Unable to collect the indemnity from Eustaquio, the City of Manila filed an action against the Manila Electric Company to obtain payment, claiming that the defendant was subsidiarily liable. The main defense was that the defendant had exercised the diligence of a good father of a family to prevent the damage. The lower court rendered judgment in favor of the plaintiff. This Court held, in part, that this case was governed by the Penal Code, saying: With this preliminary point out of the way, there is no escaping the conclusion that the provisions of the Penal Code govern. The Penal Code in easily understandable language authorizes the determination of subsidiary liability. The Civil Code negatives its application by providing that civil obligations arising from crimes or misdemeanors shall be governed by the provisions of the Penal Code. The conviction of the motorman was a misdemeanor falling under article 604 of the Penal Code. The act of the motorman was not a wrongful or negligent act or omission not punishable by law. Accordingly, the civil obligation connected up with the Penal Code and not with article 1903 of the Civil Code. In other words, the Penal Code affirms its jurisdiction while the Civil Code negatives its jurisdiction. This is a case of criminal negligence out of which civil liability arises and not a case of civil negligence. xxx xxx xxx Our deduction, therefore, is that the case relates to the Penal Code and not to the Civil Code. Indeed, as pointed out by the trial judge, any different ruling would permit the master to escape scot-free by simply alleging and proving that the master had exercised all diligence in the selection and training of its servants to prevent the damage. That would be a good defense to a strictly civil action, but might or might not be to a civil action either as a part of or predicated on conviction for a crime or misdemeanor. (By way of parenthesis, it may be said further that the statements here made are offered to meet the argument advanced during our deliberations to the effect that article 0902 of the Civil Code should be disregarded and codal articles 1093 and 1903 applied.) It is not clear how the above case could support the defendant's proposition, because the Court of Appeals based its decision in the present case on the defendant's primary responsibility under article 1903 of the Civil Code and not on his subsidiary liability arising from Fontanilla's criminal negligence. In other words, the case of City of Manila vs. Manila Electric Co., supra, is predicated on an entirely different theory, which is the subsidiary liability of an employer arising from a criminal act of his employee, whereas the foundation of the decision of the Court of Appeals in the present case is the employer's primary liability under article 1903 of the Civil Code. We have already seen that this is a proper and independent remedy. Arambulo vs. Manila Electric Co. (55 Phil., 75), is another case invoked by the defendant. A motorman in the employ of the Manila Electric Company had been convicted o homicide by simple negligence and sentenced, among other things, to pay the heirs of the deceased the sum of P1,000. An action was then brought to enforce the subsidiary liability of the defendant as employer under the Penal Code. The defendant attempted to show that it had exercised the diligence of a good father of a family in selecting the motorman, and therefore claimed exemption from civil liability. But this Court held: In view of the foregoing considerations, we are of opinion and so hold, (1) that the exemption from civil liability established in article 1903 of the Civil Code for all who have acted with the diligence of a good father of a family, is not applicable to the subsidiary civil liability provided in article 20 of the Penal Code. The above case is also extraneous to the theory of the defendant in the instant case, because the action there had for its purpose the enforcement of the defendant's subsidiary liability under the Penal Code, while in the case at bar, the plaintiff's cause of action is based on the defendant's primary and direct responsibility under article 1903 of the Civil Code. In fact, the above case destroys the defendant's contention because that decision illustrates the principle that the

employer's primary responsibility under article 1903 of the Civil Code is different in character from his subsidiary liability under the Penal Code. In trying to apply the two cases just referred to, counsel for the defendant has failed to recognize the distinction between civil liability arising from a crime, which is governed by the Penal Code, and the responsibility for cuasi-delito or culpa aquiliana under the Civil Code, and has likewise failed to give the importance to the latter type of civil action. The defendant-petitioner also cites Francisco vs. Onrubia (46 Phil., 327). That case need not be set forth. Suffice it to say that the question involved was also civil liability arising from a crime. Hence, it is as inapplicable as the two cases above discussed. The foregoing authorities clearly demonstrate the separate individuality of cuasi-delitos or culpa aquiliana under the Civil Code. Specifically they show that there is a distinction between civil liability arising from criminal negligence (governed by the Penal Code) and responsibility for fault or negligence under articles 1902 to 1910 of the Civil Code, and that the same negligent act may produce either a civil liability arising from a crime under the Penal Code, or a separate responsibility for fault or negligence under articles 1902 to 1910 of the Civil Code. Still more concretely, the authorities above cited render it inescapable to conclude that the employer in this case the defendant-petitioner is primarily and directly liable under article 1903 of the Civil Code. The legal provisions, authors, and cases already invoked should ordinarily be sufficient to dispose of this case. But inasmuch as we are announcing doctrines that have been little understood in the past, it might not be inappropriate to indicate their foundations. Firstly, the Revised Penal Code in article 365 punishes not only reckless but also simple negligence. If we were to hold that articles 1902 to 1910 of the Civil Code refer only to fault or negligence not punished by law, according to the literal import of article 1093 of the Civil Code, the legal institution of culpa aquiliana would have very little scope and application in actual life. Death or injury to persons and damage to property through any degree of negligence even the slightest would have to be indemnified only through the principle of civil liability arising from a crime. In such a state of affairs, what sphere would remain for cuasi-delito or culpa aquiliana? We are loath to impute to the lawmaker any intention to bring about a situation so absurd and anomalous. Nor are we, in the interpretation of the laws, disposed to uphold the letter that killeth rather than the spirit that giveth life. We will not use the literal meaning of the law to smother and render almost lifeless a principle of such ancient origin and such full-grown development as culpa aquiliana or cuasi-delito, which is conserved and made enduring in articles 1902 to 1910 of the Spanish Civil Code. Secondly, to find the accused guilty in a criminal case, proof of guilt beyond reasonable doubt is required, while in a civil case, preponderance of evidence is sufficient to make the defendant pay in damages. There are numerous cases of criminal negligence which can not be shown beyond reasonable doubt, but can be proved by a preponderance of evidence. In such cases, the defendant can and should be made responsible in a civil action under articles 1902 to 1910 of the Civil Code. Otherwise, there would be many instances of unvindicated civil wrongs. Ubi jus ibi remedium. Thirdly, to hold that there is only one way to make defendant's liability effective, and that is, to sue the driver and exhaust his (the latter's) property first, would be tantamount to compelling the plaintiff to follow a devious and cumbersome method of obtaining relief. True, there is such a remedy under our laws, but there is also a more expeditious way, which is based on the primary and direct responsibility of the defendant under article 1903 of the Civil Code. Our view of the law is more likely to facilitate remedy for civil wrongs, because the procedure indicated by the defendant is wasteful and productive of delay, it being a matter of common knowledge that professional drivers of taxis and similar public conveyance usually do not have sufficient means with which to pay damages. Why, then, should the plaintiff be required in all cases to go through this roundabout, unnecessary, and probably useless procedure? In construing the laws, courts have endeavored to shorten and facilitate the pathways of right and justice. At this juncture, it should be said that the primary and direct responsibility of employers and their presumed negligence are principles calculated to protect society. Workmen and employees should be carefully chosen and supervised in order to avoid injury to the public. It is the masters or employers who principally reap the profits resulting from the services of these servants and employees. It is but right that they should guarantee the latter's careful conduct for the personnel and patrimonial safety of others. As Theilhard has said, "they should reproach themselves, at least, some for their weakness, others for their poor selection and all for their negligence." And according to Manresa, "It is much more equitable and just that such responsibility should fall upon the principal or director who could have chosen a careful and prudent employee, and not upon the injured person who could not exercise such selection and who used such employee because of his confidence in the principal or director." (Vol. 12, p. 622, 2nd Ed.) Many jurists also base this primary responsibility of the

employer on the principle of representation of the principal by the agent. Thus, Oyuelos says in the work already cited (Vol. 7, p. 747) that before third persons the employer and employee "vienen a ser como una sola personalidad, por refundicion de la del dependiente en la de quien le emplea y utiliza." ("become as one personality by the merging of the person of the employee in that of him who employs and utilizes him.") All these observations acquire a peculiar force and significance when it comes to motor accidents, and there is need of stressing and accentuating the responsibility of owners of motor vehicles. Fourthly, because of the broad sweep of the provisions of both the Penal Code and the Civil Code on this subject, which has given rise to the overlapping or concurrence of spheres already discussed, and for lack of understanding of the character and efficacy of the action for culpa aquiliana, there has grown up a common practice to seek damages only by virtue of the civil responsibility arising from a crime, forgetting that there is another remedy, which is by invoking articles 1902-1910 of the Civil Code. Although this habitual method is allowed by our laws, it has nevertheless rendered practically useless and nugatory the more expeditious and effective remedy based on culpa aquiliana or culpa extra-contractual. In the present case, we are asked to help perpetuate this usual course. But we believe it is high time we pointed out to the harm done by such practice and to restore the principle of responsibility for fault or negligence under articles 1902 et seq. of the Civil Code to its full rigor. It is high time we caused the stream of quasi-delict or culpa aquiliana to flow on its own natural channel, so that its waters may no longer be diverted into that of a crime under the Penal Code. This will, it is believed, make for the better safeguarding of private rights because it re-establishes an ancient and additional remedy, and for the further reason that an independent civil action, not depending on the issues, limitations and results of a criminal prosecution, and entirely directed by the party wronged or his counsel, is more likely to secure adequate and efficacious redress. In view of the foregoing, the judgment of the Court of Appeals should be and is hereby affirmed, with costs against the defendant-petitioner. Yulo, C.J., Moran, Ozaeta and Paras, JJ., c [G.R. Nos. 118441-42. January 18, 2000] ARMANDO JOSE y PAZ and MANILA CENTRAL BUS LINES (MCL), represented by its General Manager MR. DANILO T. DE DIOS, petitioners vs. COURT OF APPEALS, ROMMEL ABRAHAM, represented by his father FELIXBERTO ABRAHAM, JOSE MACARUBO and MERCEDES MACARUBO, respondents. DECISION MENDOZA, J.: rny This is a petition for review on certiorari of the decision[1] of the Court of Appeals, reversing the decision of the Regional Trial Court, Branch 172, Valenzuela, Metro Manila and ordering petitioners to pay damages for injuries to persons and damage to property as a result of a vehicular accident. The facts are as follows: Petitioner Manila Central Bus Lines Corporation (MCL) is the operator-lessee of a public utility bus (hereafter referred to as Bus 203) with plate number NVR-III-TB-PIL and body number 203. Bus 203 is owned by the Metro Manila Transit Corporation and is insured with the Government Service Insurance System. On February 22, 1985, at around six oclock in the morning, Bus 203, then driven by petitioner Armando Jose, collided with a red Ford Escort driven by John Macarubo on MacArthur Highway, in Marulas, Valenzuela, Metro Manila. Bus 203 was bound for Muntinlupa, Rizal, while the Ford Escort was headed towards Malanday, Valenzuela on the opposite lane. As a result of the collision, the left side of the Ford Escorts hood was severely damaged while its driver, John Macarubo, and its lone passenger, private respondent Rommel Abraham, were seriously injured. The driver and conductress of Bus 203 rushed Macarubo and Abraham to the nearby Fatima Hospital where Macarubo lapsed into a coma. Despite surgery, Macarubo failed to recover and died five days later. Abraham survived, but he became blind on the left eye which had to be removed. In addition, he sustained a fracture on the forehead and multiple lacerations on the face, which caused him to be hospitalized for a week. On March 26, 1985, Rommel Abraham, represented by his father, Felixberto, instituted Civil Case No. 2206-V-85 for damages against petitioners MCL and Armando Jose in the Regional Trial Court, Branch 172, Valenzuela. On July 17, 1986, the spouses Jose and Mercedes Macarubo, parents of the deceased John Macarubo, filed their own suit for damages in the same trial court, where it was docketed as Civil Case No. 2428-V-86, against MCL alone. On the other hand, MCL filed a third-party complaint against Juanita Macarubo, registered owner of the Ford Escort on the theory that John

Macarubo was negligent and that he was the "authorized driver" of Juanita Macarubo. The latter, in turn, filed a counterclaim for damages against MCL for the damage to her car. Civil Case No. 2206-V-85 and Civil Case No. 2428-V-86 were consolidated and later tried jointly. The facts, as found by the trial court, are as follows: Esmsc In Civil Case No. 2206-V-85, the Court heard the testimonies that during the night previous to the accident of February 22, 1985 at 6:15 a.m., Rommel Abraham and John Macarubo were at a party. There was therefore, no sleep for them, notwithstanding testimony to the contrary and the service of drinks cannot be totally discounted. After the party at 11 p.m., while both Rommel and John were enroute home to Valenzuela from La Loma, the car encountered mechanical trouble and had to be repaired as its cross-joint was detached. The defect of a cross-joint is not minor and repair thereof would as testified to by Rommel lasted up to early dawn and the car started to run only after five oclock in the morning. With lack of sleep, the strains of a party still on their bodies, and the attention to the repair coupled with the wait until the car was ready to run, are potentials in a driver for possible accident. The accident happened at 6:15 a.m. when the physical and mental condition of the driver John Macarubo was as expected not too fit for the driving as he could not anymore control the car. The desire to be home quick for the much needed sleep could have prompted him to overtake the preceding vehicle. Indeed the pictures taken of the two vehicles (Exh. 1,2 and 3) will clearly show that the MCL bus was at its proper lane and not in an overtaking position while the car driven by John Macarubo was positioned in a diagonal manner and crossed the line of the MCL, which is an indication of an overtaking act. If it were the bus that was overtaking at the time, the car would have been thrown farther away from the point of the impact. The court is convinced of the close supervision and control of MCL over their drivers, and its exercise of due diligence in seeing to it that no recklessness is committed by its employees, drivers especially, from the unrebutted testimonies of Cesar Cainglet. The Court noted the respective damages of the two vehicles especially the point of the impact. From these damages as shown by the picture, it can be clearly deduced which vehicle did the bumping. It was the car driven by John Macarubo that hit the MCL which was on its right and correct lane. [2] Based on the foregoing facts, the trial court rendered judgment on September 28, 1989, dismissing both civil cases against MCL and ruling favorably on its third-party complaint against Juanita Macarubo, ordering the latter to pay MCL P54,232.12 as actual damages, P24,000.00 for lost income, and P10,000.00 as attorneys fees. Rommel Abraham, the Macarubo spouses, and third-party defendant Juanita Macarubo then appealed to the Court of Appeals which, on December 21, 1994, rendered a decision reversing the decision of the trial court. It held (1) that the trial court erred in disregarding Rommel Abrahams uncontroverted testimony that the collision was due to the fault of the driver of Bus 203; (2) that the trial court erred in relying on photographs (Exhs. 1-3) which had been taken an hour after the collision as within that span of time, the positions of the vehicles could have been changed; (3) that the photographs do not show that the Ford Escort was overtaking another vehicle when the accident happened and that John Macarubo, its driver, was negligent; and (4) that MCL failed to make a satisfactory showing that it exercised due diligence in the selection and supervision of its driver Armando Jose. The dispositive portion of the decision reads: Jksm WHEREFORE, the appealed decision is hereby REVERSED and the defendants-appellees MCL and Armando Jose are adjudged to pay jointly and severally: 1. Rommel Abraham, represented by his father Felixberto Abraham: (a) P37,576.47 as actual damages; (b) P50,000.00 as compensatory damages; (c) P15,000.00 as moral damages; (d) P5,000.00 as exemplary damages; and (e) P10,000.00 as attorneys fees. 2. The heirs of John Macarubo: (a) P50,000.00 as indemnity for his death; (b) P50,000.00 as moral damages; (c) P10,000.00 as exemplary damages; and (d) P10,000.00 as attorneys fees. Costs against the appellees. SO ORDERED.

Hence, this petition for review on certiorari. Petitioners MCL and Armando Jose raise four issues which boil down to the question whether it was the driver of Bus 203 or that of the Ford Escort who was at fault for the collision of the two vehicles. It is well-settled that a question of fact is to be determined by the evidence offered to support the particular contention.
[3]

In the proceedings below, petitioners relied mainly on photographs, identified in evidence as Exhibits 1 to 3, showing the

position of the two vehicles after the collision. On the other hand, private respondents offered the testimony of Rommel Abraham to the effect that the collision took place because Bus 203 invaded their lane. [4] The trial court was justified in relying on the photographs rather than on Rommel Abrahams testimony which was obviously biased and unsupported by any other evidence. Physical evidence is a mute but an eloquent manifestation of truth, and it ranks high in our hierarchy of trustworthy evidence. [5] In criminal cases such as murder or rape where the accused stands to lose his liberty if found guilty, this Court has, in many occasions, relied principally upon physical evidence in ascertaining the truth. In People v. Vasquez,[6] where the physical evidence on record ran counter to the testimonial evidence of the prosecution witnesses, we ruled that the physical evidence should prevail. [7] Esm In this case, the positions of the two vehicles, as shown in the photographs (Exhs. 1 to 3) taken by MCL line inspector Jesus Custodio about an hour and fifteen minutes after the collision, disputes Abrahams self-serving testimony that the two vehicles collided because Bus 203 invaded the lane of the Ford Escort and clearly shows that the case is exactly the opposite of what he claimed happened. Contrary to Abrahams testimony, the photographs show quite clearly that Bus 203 was in its proper lane and that it was the Ford Escort which usurped a portion of the opposite lane. The three photographs show the Ford Escort positioned diagonally on the highway, with its two front wheels occupying Bus 203s lane. As shown by the photograph marked Exhibit 3, the portion of MacArthur Highway where the collision took place is marked by a groove which serves as the center line separating the right from the left lanes. The photograph shows that the left side of Bus 203 is about a few feet from the center line and that the bus is positioned parallel thereto. This negates the claim that Bus 203 was overtaking another vehicle and, in so doing, encroached on the opposite lane occupied by the Ford Escort. Indeed, Bus 203 could not have been overtaking another vehicle when the collision happened. It was filled with passengers,[8] and it was considerably heavier and larger than the Ford Escort. If it was overtaking another vehicle, it necessarily had to accelerate. The acceleration of its speed and its heavy load would have greatly increased its momentum so that the impact of the collision would have thrown the smaller and lighter Ford Escort to a considerable distance from the point of impact. Exhibit 1, however, shows that the Ford Escorts smashed hood was only about one or two meters from Bus 203s damaged left front. If there had been a great impact, such as would be the case if Bus 203 had been running at a high speed, the two vehicles should have ended up far from each other. In discrediting the physical evidence, the appellate court made the following observations: We cannot believe that it was the car which overtook another vehicle and proceeded to the lane occupied by the bus. There was a traffic jam on the "bus lane" while traffic was light on the "car lane."Indeed, we find it inconceivable that the car, occupying the lane without any traffic, would overtake and traverse a heavy traffic lane.[9] (Underscoring supplied.) This is correct. However, the fact remains that when the Ford Escort finally came to a stop, it encroached on the opposite lane occupied by Bus 203. Significantly, Rommel Abraham testified that on February 21, 1985, the night before the accident, he and John Macarubo went to a friends house in La Loma where they stayed until 11 p.m. [10] Abrahams explanation as to why they did not reach Valenzuela until six oclock in the morning of the next day when the accident happened indicates that the Ford Escort careened and slammed against Bus 203 because of a mechanical defect. Abraham told the court: [11]Esmmis ATTY. RESPICIO: Q: I am sorry, Your honor. After leaving Arnels place where did you go? ROMMEL ABRAHAM A: We proceeded in going home, sir. Q: You were on your way home? A: Yes, sir. Q: What time did you . . . I will reform the question. You met the accident at about 6:00 oclock the next day, 6:00 oclock in the morning the next day, did it take you long to reach BBB? A: Our car had a mechanical trouble somewhere at 2nd Avenue, sir. Q: What kind of trouble? A: The cross-joint were detached, sir.

Q: Are you familiar with cars? A: A little, sir. COURT: Q: What time was that when you have this cross-joint problem? A: About 12:00 oclock perhaps, sir. Q: What happened to the cross joint? A: It was cut, maam. Q: You were able to repair that cross-joint 12:00 oclock and you were able to run and reached this place of accident at 6:00 oclock? A: No, we were not able to get spare parts, maam. Q: Why were you able to reach this place at 6:00 oclock? A: We went home and look for the spare parts in their house, maam. Q: House of Macarubo? A: Yes, maam. Q: So you were able to repair the car? A: Yes, maam. Q: What time were you able to repair the car? A: Around 5:00 oclock in the morning, sir. Q: You were able to replace the cross-joint or what? A: Ginawaan ng paraan, maam. Q: How? A: The cross-joint were welded in order to enable us to go home, maam . Q: No spare parts was replaced? Msesm A: No, maam. Thus, as Rommel Abraham himself admitted, the Ford Escorts rear cross-joint was cut/detached. This mechanism controls the movement of the rear tires. Since trouble in the cross-joint affects a cars maneuverability, the matter should have been treated as a serious mechanical problem. In this case, when asked if they were able to repair the cross-joint, Abraham said "Ginawaan ng paraan, maam," by simply welding them just so they could reach home. His testimony indicates that the rear cross-joint was hastily repaired and that, at most, the kind of repairs made thereon were merely temporary; just enough to enable Abraham and Macarubo to reach home. Given such fact, the likelihood is that while the Ford Escort might not have been overtaking another vehicle, it actually strayed into the bus lane because of the defective cross-joint, causing its driver to lose control of the vehicle. The appellate court refused to give credence to the physical evidence on the ground that the photographs were taken an hour after the collision and that within such span of time the bus could have been moved because there was no showing that the driver left the scene of the accident. This is not correct. Constancia Gerolada, Bus 203s conductress, testified that, immediately after the collision, she and bus driver, petitioner Armando Jose, took the injured driver and passenger of the Ford Escort to the Fatima Hospital.[12] This fact is not disputed by private respondents. Rommel Abraham mentioned in his appellants brief in the appellate court a sketch of the scene of the accident allegedly prepared by one Patrolman Kalale, which shows Bus 203 to be occupying the Ford Escorts lane. However, the records of this case do not show that such a sketch was ever presented in evidence in the trial court or that Patrolman Kalale was ever presented as a witness to testify on the sketch allegedly prepared by him. Under Rule 132, 3 of the Rules on Evidence, courts cannot consider any evidence unless formally offered by a party. Finally, the appellate court also ruled that MCL failed to make a satisfactory showing that it exercised the diligence of a good father of a family in the selection and supervision of its bus driver, Armando Jose. [13] Under the circumstances of this case, we hold that proof of due diligence in the selection and supervision of employees is not required. The Civil Code provides in pertinent parts: Art. 2176. Whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay for the damage done. Such fault or negligence, if there is no pre-existing contractual relation between the parties, is called a quasi-delict and is governed by the provisions of this chapter. Art. 2180. The obligation imposed in Art. 2176 is demandable not only for ones own acts or omissions, but also for those of persons for whom one is responsible. Esmso

.... Employers shall be liable for the damages caused by their employees and household helpers acting within the scope of their assigned tasks, even though the former are not engaged in any business or industry. .... The 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. Thus, the responsibility of employers is premised upon the presumption of negligence of their employees. As held inPoblete v. Fabros:[14] [I]t is such a firmly established principle, as to have virtually formed part of the law itself, that the negligence of the employee gives rise to the presumption of negligence on the part of the employer. This is the presumed negligence in the selection and supervision of the employee . The theory of presumed negligence, in contrast with the American doctrine of respondent superior, where the negligence of the employee is conclusively presumed to be the negligence of the employer, is clearly deducible from the last paragraph of Article 2180 of the Civil Code which provides that the responsibility therein mentioned shall cease if the employers prove that they observed all the diligence of a good father of a family to prevent damages (12 Manresa, 657; Balica vs. Litonjua and Leynes, 30 Phil. 624; Cangco vs. Manila Railroad Co., 30 Phil. 768), as observed in the same cases just cited. Therefore, before the presumption of the employers negligence in the selection and supervision of its employees can arise, the negligence of the employee must first be established. While the allegations of negligence against the employee and that of an employer-employee relation in the complaint are enough to make out a case of quasi-delict under Art. 2180 of the Civil Code, the failure to prove the employees negligence during the trial is fatal to proving the employers vicarious liability. In this case, private respondents failed to prove their allegation of negligence against driver Armando Jose who, in fact, was acquitted in the case for criminal negligence arising from the same incident. [15] For the foregoing reasons, we hold that the appellate court erred in holding petitioners liable to private respondents. The next question then is whether, as the trial court held, private respondent Juanita Macarubo is liable to petitioners. Article 2180 of the Civil Code makes the persons specified therein responsible for the quasi-delicts of others. The burden is upon MCL to prove that Juanita Macarubo is one of those specified persons who are vicariously liable for the negligence of the deceased John Macarubo. Exsm In its third-party complaint, MCL alleged that Juanita Macarubo was the registered owner of the Ford Escort car and that John Macarubo was the "authorized driver" of the car. [16] Nowhere was it alleged that John Macarubo was the son, ward, employee or pupil of private respondent Juanita Macarubo so as to make the latter vicariously liable for the negligence of John Macarubo. The allegation that John Macarubo was "the authorized driver" of the Ford Escort is not equivalent to an allegation that he was an employee of Juanita Macarubo. That John Macarubo was the "authorized driver" of the car simply means that he drove the Ford Escort with the permission of Juanita Macarubo. Nor did MCL present any evidence to prove that Juanita Macarubo was the employer of John Macarubo or that she is in any way liable for John Macarubos negligence under Art. 2180 of the Civil Code. For failure to discharge its burden, MCLs third-party complaint should be dismissed. WHEREFORE, the decision of the Court of Appeals is REVERSED and the complaints filed in Civil Cases Nos. 2206-V-85 and 24428-V-86 against Manila Central Bus Lines and Armando Jose, as well as the third-party complaint filed in Civil Case No. 2206-V-85 against Juanita Macarubo, are hereby DISMISSED. SO ORDERED. Bellosillo, (Chairman), Quisumbing, Buena, and De Leon, Jr., JJ., concur.2/3/00 9:17 AM