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Dulay v. CA GR No. 108017, 3 April 1995 Bidin, J. Facts: As a result of an altercation between security guard Torzuela & Atty.

Dulay at a carnival, the former shot & killed the latter. Petitioner, widow of the deceased, filed an action for damages against Torzuela & Safeguard and/or Superguard, alleged employers of Torzuela. The trial court dismissed the complaint against Superguard & Safeguard since it did not state facts necessary or sufficient to constitute a quasi-delict as there was no mention of any negligence on the part of Torzuela in shooting Dulay or that the same was done in the performance of his duties. It also ruled that the complaint was one for damages founded on crimes punishable under Arts. 100 & 103 of the RPC as distinguished from those arising from quasi-delict. The CA affirmed the order of the trial court. Petitioners take exception to the assailed decision and insist that quasi-delicts are not limited to acts of negligence but also cover acts that are intentional and voluntary. Petitioners further contend that under Article 2180 of the New Civil Code, private respondents are primarily liable for their negligence either in the selection or supervision of their employees. Moreover, petitioners argue that Torzuela's act of shooting Dulay is also actionable under Article 33 of the New Civil Code. Issue: Whether the dismissal of the complaint was proper for failure to allege negligence attributable to private respondents since quasi-delicts are limited to acts of negligence Held: NO. It was erroneous on the part of the trial court to dismiss the complaint simply because it failed to make allegations of attendant negligence attributable to private respondents. There is no justification for limiting the scope of Art 2176 of the Civil Code to acts or omissions resulting from negligence. Art. 2176 covers not only acts committed w/ negligence, but also acts w/c are voluntary & intentional. Consequently, a civil action lies against the offender in a criminal act WON he is prosecuted or found guilty or acquitted, provided that the offended party is not allowed, (if the tortfeasor is actually also charged criminally), to recover damages on both scores, & would be entitled in such eventuality only to the bigger award of the 2, assuming the awards made in the 2 cases vary. Physical injuries in Art. 33 includes bodily injuries causing death. It is not the crime of physical injuries defined in the RPC. It includes not only physical injuries but also consummated, frustrated, & attempted homicide. In this case, where the accused is charged w/ homicide & not w/ reckless imprudence, a civil action based on Art. 33 lies. Under Art. 2180, when an injury is caused by the negligence of the employee, there instantly arises a presumption of law that there was negligence on the part of the master

or employer either in the selection of the servant or employee, or in supervision over him after selection or both. The liability of the employer under Art 2180 is direct & immediate; it is not conditioned upon prior recourse against the negligent employee & a prior showing of the insolvency of such employee. Thus, it is incumbent upon private respondents that they exercised the diligence of a good father of a family in the selection & supervision of their employee.