G.R. No.

L-12219

March 15, 1918

AMADO PICART, plaintiff-appellant,

vs.
FRANK SMITH, JR., defendant-appellee.
Alejo Mabanag for appellant.
G. E. Campbell for appellee.
STREET, J.:
In this action the plaintiff, Amado Picart, seeks to recover of the defendant, Frank Smith, jr., the sum
of P31,000, as damages alleged to have been caused by an automobile driven by the defendant.
From a judgment of the Court of First Instance of the Province of La Union absolving the defendant
from liability the plaintiff has appealed.
The occurrence which gave rise to the institution of this action took place on December 12, 1912, on
the Carlatan Bridge, at San Fernando, La Union. It appears that upon the occasion in question the
plaintiff was riding on his pony over said bridge. Before he had gotten half way across, the defendant
approached from the opposite direction in an automobile, going at the rate of about ten or twelve
miles per hour. As the defendant neared the bridge he saw a horseman on it and blew his horn to
give warning of his approach. He continued his course and after he had taken the bridge he gave
two more successive blasts, as it appeared to him that the man on horseback before him was not
observing the rule of the road.
The plaintiff, it appears, saw the automobile coming and heard the warning signals. However, being
perturbed by the novelty of the apparition or the rapidity of the approach, he pulled the pony closely
up against the railing on the right side of the bridge instead of going to the left. He says that the
reason he did this was that he thought he did not have sufficient time to get over to the other side.
The bridge is shown to have a length of about 75 meters and a width of 4.80 meters. As the
automobile approached, the defendant guided it toward his left, that being the proper side of the
road for the machine. In so doing the defendant assumed that the horseman would move to the
other side. The pony had not as yet exhibited fright, and the rider had made no sign for the
automobile to stop. Seeing that the pony was apparently quiet, the defendant, instead of veering to
the right while yet some distance away or slowing down, continued to approach directly toward the
horse without diminution of speed. When he had gotten quite near, there being then no possibility of
the horse getting across to the other side, the defendant quickly turned his car sufficiently to the right
to escape hitting the horse alongside of the railing where it as then standing; but in so doing the
automobile passed in such close proximity to the animal that it became frightened and turned its
body across the bridge with its head toward the railing. In so doing, it as struck on the hock of the left
hind leg by the flange of the car and the limb was broken. The horse fell and its rider was thrown off
with some violence. From the evidence adduced in the case we believe that when the accident
occurred the free space where the pony stood between the automobile and the railing of the bridge
was probably less than one and one half meters. As a result of its injuries the horse died. The
plaintiff received contusions which caused temporary unconsciousness and required medical
attention for several days.
The question presented for decision is whether or not the defendant in maneuvering his car in the
manner above described was guilty of negligence such as gives rise to a civil obligation to repair the
damage done; and we are of the opinion that he is so liable. As the defendant started across the
bridge, he had the right to assume that the horse and the rider would pass over to the proper side;
but as he moved toward the center of the bridge it was demonstrated to his eyes that this would not

be done; and he must in a moment have perceived that it was too late for the horse to cross with
safety in front of the moving vehicle. In the nature of things this change of situation occurred while
the automobile was yet some distance away; and from this moment it was not longer within the
power of the plaintiff to escape being run down by going to a place of greater safety. The control of
the situation had then passed entirely to the defendant; and it was his duty either to bring his car to
an immediate stop or, seeing that there were no other persons on the bridge, to take the other side
and pass sufficiently far away from the horse to avoid the danger of collision. Instead of doing this,
the defendant ran straight on until he was almost upon the horse. He was, we think, deceived into
doing this by the fact that the horse had not yet exhibited fright. But in view of the known nature of
horses, there was an appreciable risk that, if the animal in question was unacquainted with
automobiles, he might get exited and jump under the conditions which here confronted him. When
the defendant exposed the horse and rider to this danger he was, in our opinion, negligent in the eye
of the law.
The test by which to determine the existence of negligence in a particular case may be stated as
follows: Did the defendant in doing the alleged negligent act use that person would have used in the
same situation? If not, then he is guilty of negligence. The law here in effect adopts the standard
supposed to be supplied by the imaginary conduct of the discreet paterfamilias of the Roman law.
The existence of negligence in a given case is not determined by reference to the personal judgment
of the actor in the situation before him. The law considers what would be reckless, blameworthy, or
negligent in the man of ordinary intelligence and prudence and determines liability by that.
The question as to what would constitute the conduct of a prudent man in a given situation must of
course be always determined in the light of human experience and in view of the facts involved in
the particular case. Abstract speculations cannot here be of much value but this much can be
profitably said: Reasonable men govern their conduct by the circumstances which are before them
or known to them. They are not, and are not supposed to be, omniscient of the future. Hence they
can be expected to take care only when there is something before them to suggest or warn of
danger. Could a prudent man, in the case under consideration, foresee harm as a result of the
course actually pursued? If so, it was the duty of the actor to take precautions to guard against that
harm. Reasonable foresight of harm, followed by ignoring of the suggestion born of this prevision, is
always necessary before negligence can be held to exist. Stated in these terms, the proper criterion
for determining the existence of negligence in a given case is this: Conduct is said to be negligent
when a prudent man in the position of the tortfeasor would have foreseen that an effect harmful to
another was sufficiently probable to warrant his foregoing conduct or guarding against its
consequences.
Applying this test to the conduct of the defendant in the present case we think that negligence is
clearly established. A prudent man, placed in the position of the defendant, would in our opinion,
have recognized that the course which he was pursuing was fraught with risk, and would therefore
have foreseen harm to the horse and the rider as reasonable consequence of that course. Under
these circumstances the law imposed on the defendant the duty to guard against the threatened
harm.
It goes without saying that the plaintiff himself was not free from fault, for he was guilty of antecedent
negligence in planting himself on the wrong side of the road. But as we have already stated, the
defendant was also negligent; and in such case the problem always is to discover which agent is
immediately and directly responsible. It will be noted that the negligent acts of the two parties were
not contemporaneous, since the negligence of the defendant succeeded the negligence of the
plaintiff by an appreciable interval. Under these circumstances the law is that the person who has
the last fair chance to avoid the impending harm and fails to do so is chargeable with the
consequences, without reference to the prior negligence of the other party.

The decision in the case of Rkes vs. Atlantic, Gulf and Pacific Co. (7 Phil. Rep., 359) should perhaps
be mentioned in this connection. This Court there held that while contributory negligence on the part
of the person injured did not constitute a bar to recovery, it could be received in evidence to reduce
the damages which would otherwise have been assessed wholly against the other party. The
defendant company had there employed the plaintiff, as a laborer, to assist in transporting iron rails
from a barge in Manila harbor to the company's yards located not far away. The rails were conveyed
upon cars which were hauled along a narrow track. At certain spot near the water's edge the track
gave way by reason of the combined effect of the weight of the car and the insecurity of the road
bed. The car was in consequence upset; the rails slid off; and the plaintiff's leg was caught and
broken. It appeared in evidence that the accident was due to the effects of the typhoon which had
dislodged one of the supports of the track. The court found that the defendant company was
negligent in having failed to repair the bed of the track and also that the plaintiff was, at the moment
of the accident, guilty of contributory negligence in walking at the side of the car instead of being in
front or behind. It was held that while the defendant was liable to the plaintiff by reason of its
negligence in having failed to keep the track in proper repair nevertheless the amount of the
damages should be reduced on account of the contributory negligence in the plaintiff. As will be seen
the defendant's negligence in that case consisted in an omission only. The liability of the company
arose from its responsibility for the dangerous condition of its track. In a case like the one now
before us, where the defendant was actually present and operating the automobile which caused the
damage, we do not feel constrained to attempt to weigh the negligence of the respective parties in
order to apportion the damage according to the degree of their relative fault. It is enough to say that
the negligence of the defendant was in this case the immediate and determining cause of the
accident and that the antecedent negligence of the plaintiff was a more remote factor in the case.
A point of minor importance in the case is indicated in the special defense pleaded in the defendant's
answer, to the effect that the subject matter of the action had been previously adjudicated in the
court of a justice of the peace. In this connection it appears that soon after the accident in question
occurred, the plaintiff caused criminal proceedings to be instituted before a justice of the peace
charging the defendant with the infliction of serious injuries (lesiones graves). At the preliminary
investigation the defendant was discharged by the magistrate and the proceedings were dismissed.
Conceding that the acquittal of the defendant at the trial upon the merits in a criminal prosecution for
the offense mentioned would be res adjudicata upon the question of his civil liability arising from
negligence -- a point upon which it is unnecessary to express an opinion -- the action of the justice of
the peace in dismissing the criminal proceeding upon the preliminary hearing can have no effect.
(See U. S. vs. Banzuela and Banzuela, 31 Phil. Rep., 564.)
From what has been said it results that the judgment of the lower court must be reversed, and
judgment is her rendered that the plaintiff recover of the defendant the sum of two hundred pesos
(P200), with costs of other instances. The sum here awarded is estimated to include the value of the
horse, medical expenses of the plaintiff, the loss or damage occasioned to articles of his apparel,
and lawful interest on the whole to the date of this recovery. The other damages claimed by the
plaintiff are remote or otherwise of such character as not to be recoverable. So ordered.
Arellano, C.J., Torres, Carson, Araullo, Avancea, and Fisher, JJ., concur.
Johnson, J., reserves his vote.

Separate Opinions
MALCOLM, J., concurring:

After mature deliberation, I have finally decided to concur with the judgment in this case. I do so
because of my understanding of the "last clear chance" rule of the law of negligence as particularly
applied to automobile accidents. This rule cannot be invoked where the negligence of the plaintiff is
concurrent with that of the defendant. Again, if a traveler when he reaches the point of collision is in
a situation to extricate himself and avoid injury, his negligence at that point will prevent a recovery.
But Justice Street finds as a fact that the negligent act of the interval of time, and that at the moment
the plaintiff had no opportunity to avoid the accident. Consequently, the "last clear chance" rule is
applicable. In other words, when a traveler has reached a point where he cannot extricate himself
and vigilance on his part will not avert the injury, his negligence in reaching that position becomes
the condition and not the proximate cause of the injury and will not preclude a recovery. (Note
especially Aiken vs. Metcalf [1917], 102 Atl., 330.)
G.R. No. L-48006

July 8, 1942

FAUSTO BARREDO, petitioner,

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 not punishable 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 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 extra-contractual 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 cuasidelito 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 unica sobre 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 beres 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 Juradohad 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 andfraudulently, 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 nonfulfillment 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 aquilianaunder 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-yearold 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

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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., concur.

G.R. No. L-21438

September 28, 1966

AIR FRANCE, petitioner,

vs.
RAFAEL CARRASCOSO and the HONORABLE COURT OF APPEALS, respondents.
Lichauco, Picazo and Agcaoili for petitioner.
Bengzon Villegas and Zarraga for respondent R. Carrascoso.

SANCHEZ, J.:
The Court of First Instance of Manila 1 sentenced petitioner to pay respondent Rafael Carrascoso
P25,000.00 by way of moral damages; P10,000.00 as exemplary damages; P393.20 representing
the difference in fare between first class and tourist class for the portion of the trip Bangkok-Rome,
these various amounts with interest at the legal rate, from the date of the filing of the complaint until
paid; plus P3,000.00 for attorneys' fees; and the costs of suit.
On appeal,2 the Court of Appeals slightly reduced the amount of refund on Carrascoso's plane ticket
from P393.20 to P383.10, and voted to affirm the appealed decision "in all other respects", with costs
against petitioner.
The case is now before us for review on certiorari.
The facts declared by the Court of Appeals as " fully supported by the evidence of record", are:
Plaintiff, a civil engineer, was a member of a group of 48 Filipino pilgrims that left Manila for
Lourdes on March 30, 1958.
On March 28, 1958, the defendant, Air France, through its authorized agent, Philippine Air
Lines, Inc., issued to plaintiff a "first class" round trip airplane ticket from Manila to Rome.
From Manila to Bangkok, plaintiff travelled in "first class", but at Bangkok, the Manager of the
defendant airline forced plaintiff to vacate the "first class" seat that he was occupying
because, in the words of the witness Ernesto G. Cuento, there was a "white man", who, the
Manager alleged, had a "better right" to the seat. When asked to vacate his "first class" seat,
the plaintiff, as was to be expected, refused, and told defendant's Manager that his seat
would be taken over his dead body; a commotion ensued, and, according to said Ernesto G.
Cuento, "many of the Filipino passengers got nervous in the tourist class; when they found
out that Mr. Carrascoso was having a hot discussion with the white man [manager], they
came all across to Mr. Carrascoso and pacified Mr. Carrascoso to give his seat to the white

man" (Transcript, p. 12, Hearing of May 26, 1959); and plaintiff reluctantly gave his "first
class" seat in the plane.3
1. The trust of the relief petitioner now seeks is that we review "all the findings" 4 of respondent Court
of Appeals. Petitioner charges that respondent court failed to make complete findings of fact on all
the issues properly laid before it. We are asked to consider facts favorable to petitioner, and then, to
overturn the appellate court's decision.
Coming into focus is the constitutional mandate that "No decision shall be rendered by any court of
record without expressing therein clearly and distinctly the facts and the law on which it is
based". 5 This is echoed in the statutory demand that a judgment determining the merits of the case
shall state "clearly and distinctly the facts and the law on which it is based"; 6 and that "Every
decision of the Court of Appeals shall contain complete findings of fact on all issues properly raised
before it". 7
A decision with absolutely nothing to support it is a nullity. It is open to direct attack. 8 The law,
however, solely insists that a decision state the "essential ultimate facts" upon which the court's
conclusion is drawn. 9 A court of justice is not hidebound to write in its decision every bit and piece of
evidence 10 presented by one party and the other upon the issues raised. Neither is it to be burdened
with the obligation "to specify in the sentence the facts"which a party "considered as proved". 11 This
is but a part of the mental process from which the Court draws the essential ultimate facts. A
decision is not to be so clogged with details such that prolixity, if not confusion, may result. So long
as the decision of the Court of Appeals contains the necessary facts to warrant its conclusions, it is
no error for said court to withhold therefrom "any specific finding of facts with respect to the evidence
for the defense". Because as this Court well observed, "There is no law that so requires". 12 Indeed,
"the mere failure to specify (in the decision) the contentions of the appellant and the reasons for
refusing to believe them is not sufficient to hold the same contrary to the requirements of the
provisions of law and the Constitution". It is in this setting that in Manigque, it was held that the mere
fact that the findings "were based entirely on the evidence for the prosecution without taking into
consideration or even mentioning the appellant's side in the controversy as shown by his own
testimony", would not vitiate the judgment. 13 If the court did not recite in the decision the testimony of
each witness for, or each item of evidence presented by, the defeated party, it does not mean that
the court has overlooked such testimony or such item of evidence. 14 At any rate, the legal
presumptions are that official duty has been regularly performed, and that all the matters within an
issue in a case were laid before the court and passed upon by it. 15
Findings of fact, which the Court of Appeals is required to make, maybe defined as "the written
statement of the ultimate facts as found by the court ... and essential to support the decision and
judgment rendered thereon". 16They consist of the court's "conclusions" with respect to the
determinative facts in issue". 17 A question of law, upon the other hand, has been declared as "one
which does not call for an examination of the probative value of the evidence presented by the
parties." 18
2. By statute, "only questions of law may be raised" in an appeal by certiorari from a judgment of the
Court of Appeals. 19 That judgment is conclusive as to the facts. It is not appropriately the business of
this Court to alter the facts or to review the questions of fact. 20
With these guideposts, we now face the problem of whether the findings of fact of the Court of
Appeals support its judgment.
3. Was Carrascoso entitled to the first class seat he claims?

It is conceded in all quarters that on March 28, 1958 he paid to and received from petitioner a first
class ticket. But petitioner asserts that said ticket did not represent the true and complete intent and
agreement of the parties; that said respondent knew that he did not have confirmed reservations for
first class on any specific flight, although he had tourist class protection; that, accordingly, the
issuance of a first class ticket was no guarantee that he would have a first class ride, but that such
would depend upon the availability of first class seats.
These are matters which petitioner has thoroughly presented and discussed in its brief before the
Court of Appeals under its third assignment of error, which reads: "The trial court erred in finding that
plaintiff had confirmed reservations for, and a right to, first class seats on the "definite" segments of
his journey, particularly that from Saigon to Beirut". 21
And, the Court of Appeals disposed of this contention thus:
Defendant seems to capitalize on the argument that the issuance of a first-class ticket was
no guarantee that the passenger to whom the same had been issued, would be
accommodated in the first-class compartment, for as in the case of plaintiff he had yet to
make arrangements upon arrival at every station for the necessary first-class reservation.
We are not impressed by such a reasoning. We cannot understand how a reputable firm like
defendant airplane company could have the indiscretion to give out tickets it never meant to
honor at all. It received the corresponding amount in payment of first-class tickets and yet it
allowed the passenger to be at the mercy of its employees. It is more in keeping with the
ordinary course of business that the company should know whether or riot the tickets it
issues are to be honored or not.22
Not that the Court of Appeals is alone. The trial court similarly disposed of petitioner's contention,
thus:
On the fact that plaintiff paid for, and was issued a "First class" ticket, there can be no question.
Apart from his testimony, see plaintiff's Exhibits "A", "A-1", "B", "B-1," "B-2", "C" and "C-1", and
defendant's own witness, Rafael Altonaga, confirmed plaintiff's testimony and testified as follows:
Q. In these tickets there are marks "O.K." From what you know, what does this OK mean?
A. That the space is confirmed.
Q. Confirmed for first class?
A. Yes, "first class". (Transcript, p. 169)
xxx

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xxx

Defendant tried to prove by the testimony of its witnesses Luis Zaldariaga and Rafael Altonaga that
although plaintiff paid for, and was issued a "first class" airplane ticket, the ticket was subject to
confirmation in Hongkong. The court cannot give credit to the testimony of said witnesses. Oral
evidence cannot prevail over written evidence, and plaintiff's Exhibits "A", "A-l", "B", "B-l", "C" and "C1" belie the testimony of said witnesses, and clearly show that the plaintiff was issued, and paid for,
a first class ticket without any reservation whatever.
Furthermore, as hereinabove shown, defendant's own witness Rafael Altonaga testified that the
reservation for a "first class" accommodation for the plaintiff was confirmed. The court cannot believe

that after such confirmation defendant had a verbal understanding with plaintiff that the "first class"
ticket issued to him by defendant would be subject to confirmation in Hongkong. 23
We have heretofore adverted to the fact that except for a slight difference of a few pesos in the
amount refunded on Carrascoso's ticket, the decision of the Court of First Instance was affirmed by
the Court of Appeals in all other respects. We hold the view that such a judgment of affirmance has
merged the judgment of the lower court. 24Implicit in that affirmance is a determination by the Court of
Appeals that the proceeding in the Court of First Instance was free from prejudicial error and "all
questions raised by the assignments of error and all questions that might have been raised are to be
regarded as finally adjudicated against the appellant". So also, the judgment affirmed "must be
regarded as free from all error". 25 We reached this policy construction because nothing in the
decision of the Court of Appeals on this point would suggest that its findings of fact are in any way at
war with those of the trial court. Nor was said affirmance by the Court of Appeals upon a ground or
grounds different from those which were made the basis of the conclusions of the trial court. 26
If, as petitioner underscores, a first-class-ticket holder is not entitled to a first class seat,
notwithstanding the fact that seat availability in specific flights is therein confirmed, then an air
passenger is placed in the hollow of the hands of an airline. What security then can a passenger
have? It will always be an easy matter for an airline aided by its employees, to strike out the very
stipulations in the ticket, and say that there was a verbal agreement to the contrary. What if the
passenger had a schedule to fulfill? We have long learned that, as a rule, a written document speaks
a uniform language; that spoken word could be notoriously unreliable. If only to achieve stability in
the relations between passenger and air carrier, adherence to the ticket so issued is desirable. Such
is the case here. The lower courts refused to believe the oral evidence intended to defeat the
covenants in the ticket.
The foregoing are the considerations which point to the conclusion that there are facts upon which
the Court of Appeals predicated the finding that respondent Carrascoso had a first class ticket and
was entitled to a first class seat at Bangkok, which is a stopover in the Saigon to Beirut leg of the
flight. 27 We perceive no "welter of distortions by the Court of Appeals of petitioner's statement of its
position", as charged by petitioner. 28 Nor do we subscribe to petitioner's accusation that respondent
Carrascoso "surreptitiously took a first class seat to provoke an issue". 29 And this because, as
petitioner states, Carrascoso went to see the Manager at his office in Bangkok "to confirm my seat
and because from Saigon I was told again to see the Manager". 30 Why, then, was he allowed to take
a first class seat in the plane at Bangkok, if he had no seat? Or, if another had a better right to the
seat?
4. Petitioner assails respondent court's award of moral damages. Petitioner's trenchant claim is that
Carrascoso's action is planted upon breach of contract; that to authorize an award for moral
damages there must be an averment of fraud or bad faith; 31 and that the decision of the Court of
Appeals fails to make a finding of bad faith. The pivotal allegations in the complaint bearing on this
issue are:
3. That ... plaintiff entered into a contract of air carriage with the Philippine Air Lines for a
valuable consideration, the latter acting as general agents for and in behalf of the defendant,
under which said contract, plaintiff was entitled to, as defendant agreed to furnish plaintiff,
First Class passage on defendant's plane during the entire duration of plaintiff's tour of
Europe with Hongkong as starting point up to and until plaintiff's return trip to Manila, ... .
4. That, during the first two legs of the trip from Hongkong to Saigon and from Saigon to
Bangkok, defendant furnished to the plaintiff First Class accommodation but only after

protestations, arguments and/or insistence were made by the plaintiff with defendant's
employees.
5. That finally, defendant failed to provide First Class passage, but instead furnished plaintiff
only TouristClass accommodations from Bangkok to Teheran and/or Casablanca, ... the
plaintiff has been compelledby defendant's employees to leave the First Class
accommodation berths at Bangkok after he was already seated.
6. That consequently, the plaintiff, desiring no repetition of the inconvenience and
embarrassments brought by defendant's breach of contract was forced to take a Pan
American World Airways plane on his return trip from Madrid to Manila. 32
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2. That likewise, as a result of defendant's failure to furnish First Class accommodations aforesaid,
plaintiff suffered inconveniences, embarrassments, and humiliations, thereby causing plaintiff mental
anguish, serious anxiety, wounded feelings, social humiliation, and the like injury, resulting in moral
damages in the amount of P30,000.00. 33
xxx

xxx

xxx

The foregoing, in our opinion, substantially aver: First, That there was a contract to furnish plaintiff a
first class passage covering, amongst others, the Bangkok-Teheran leg; Second, That said contract
was breached when petitioner failed to furnish first class transportation at Bangkok; and Third, that
there was bad faith when petitioner's employee compelled Carrascoso to leave his first class
accommodation berth "after he was already, seated" and to take a seat in the tourist class, by reason
of which he suffered inconvenience, embarrassments and humiliations, thereby causing him mental
anguish, serious anxiety, wounded feelings and social humiliation, resulting in moral damages. It is
true that there is no specific mention of the term bad faith in the complaint. But, the inference of bad
faith is there, it may be drawn from the facts and circumstances set forth therein. 34 The contract was
averred to establish the relation between the parties. But the stress of the action is put on wrongful
expulsion.
Quite apart from the foregoing is that (a) right the start of the trial, respondent's counsel placed
petitioner on guard on what Carrascoso intended to prove: That while sitting in the plane in Bangkok,
Carrascoso was oustedby petitioner's manager who gave his seat to a white man; 35 and (b)
evidence of bad faith in the fulfillment of the contract was presented without objection on the part of
the petitioner. It is, therefore, unnecessary to inquire as to whether or not there is sufficient averment
in the complaint to justify an award for moral damages. Deficiency in the complaint, if any, was cured
by the evidence. An amendment thereof to conform to the evidence is not even required. 36 On the
question of bad faith, the Court of Appeals declared:
That the plaintiff was forced out of his seat in the first class compartment of the plane
belonging to the defendant Air France while at Bangkok, and was transferred to the tourist
class not only without his consent but against his will, has been sufficiently established by
plaintiff in his testimony before the court, corroborated by the corresponding entry made by
the purser of the plane in his notebook which notation reads as follows:
"First-class passenger was forced to go to the tourist class against his will, and that
the captain refused to intervene",

and by the testimony of an eye-witness, Ernesto G. Cuento, who was a co-passenger. The
captain of the plane who was asked by the manager of defendant company at Bangkok to
intervene even refused to do so. It is noteworthy that no one on behalf of defendant ever
contradicted or denied this evidence for the plaintiff. It could have been easy for defendant to
present its manager at Bangkok to testify at the trial of the case, or yet to secure his
disposition; but defendant did neither. 37
The Court of appeals further stated
Neither is there evidence as to whether or not a prior reservation was made by the white
man. Hence, if the employees of the defendant at Bangkok sold a first-class ticket to him
when all the seats had already been taken, surely the plaintiff should not have been picked
out as the one to suffer the consequences and to be subjected to the humiliation and
indignity of being ejected from his seat in the presence of others. Instead of explaining to the
white man the improvidence committed by defendant's employees, the manager adopted the
more drastic step of ousting the plaintiff who was then safely ensconsced in his rightful seat.
We are strengthened in our belief that this probably was what happened there, by the
testimony of defendant's witness Rafael Altonaga who, when asked to explain the meaning
of the letters "O.K." appearing on the tickets of plaintiff, said "that the space is confirmed for
first class. Likewise, Zenaida Faustino, another witness for defendant, who was the chief of
the Reservation Office of defendant, testified as follows:
"Q How does the person in the ticket-issuing office know what reservation the
passenger has arranged with you?
A They call us up by phone and ask for the confirmation." (t.s.n., p. 247, June 19,
1959)
In this connection, we quote with approval what the trial Judge has said on this point:
Why did the, using the words of witness Ernesto G. Cuento, "white man" have a
"better right" to the seat occupied by Mr. Carrascoso? The record is silent. The
defendant airline did not prove "any better", nay, any right on the part of the "white
man" to the "First class" seat that the plaintiff was occupying and for which he paid
and was issued a corresponding "first class" ticket.
If there was a justified reason for the action of the defendant's Manager in Bangkok,
the defendant could have easily proven it by having taken the testimony of the said
Manager by deposition, but defendant did not do so; the presumption is that
evidence willfully suppressed would be adverse if produced [Sec. 69, par (e), Rules
of Court]; and, under the circumstances, the Court is constrained to find, as it does
find, that the Manager of the defendant airline in Bangkok not merely asked but
threatened the plaintiff to throw him out of the plane if he did not give up his "first
class" seat because the said Manager wanted to accommodate, using the words of
the witness Ernesto G. Cuento, the "white man".38
It is really correct to say that the Court of Appeals in the quoted portion first transcribed did
not use the term "bad faith". But can it be doubted that the recital of facts therein points to
bad faith? The manager not only prevented Carrascoso from enjoying his right to a first class
seat; worse, he imposed his arbitrary will; he forcibly ejected him from his seat, made him
suffer the humiliation of having to go to the tourist class compartment - just to give way to
another passenger whose right thereto has not been established. Certainly, this is bad faith.

Unless, of course, bad faith has assumed a meaning different from what is understood in
law. For, "bad faith" contemplates a "state of mind affirmatively operating with furtive design
or with some motive of self-interest or will or for ulterior purpose." 39
And if the foregoing were not yet sufficient, there is the express finding of bad faith in the
judgment of the Court of First Instance, thus:
The evidence shows that the defendant violated its contract of transportation with
plaintiff in bad faith, with the aggravating circumstances that defendant's Manager in
Bangkok went to the extent of threatening the plaintiff in the presence of many
passengers to have him thrown out of the airplane to give the "first class" seat that
he was occupying to, again using the words of the witness Ernesto G. Cuento, a
"white man" whom he (defendant's Manager) wished to accommodate, and the
defendant has not proven that this "white man" had any "better right" to occupy the
"first class" seat that the plaintiff was occupying, duly paid for, and for which the
corresponding "first class" ticket was issued by the defendant to him. 40
5. The responsibility of an employer for the tortious act of its employees need not be essayed. It is
well settled in law. 41 For the willful malevolent act of petitioner's manager, petitioner, his employer,
must answer. Article 21 of the Civil Code says:
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 parallel circumstances, we applied the foregoing legal precept; and, we held that upon the
provisions of Article 2219 (10), Civil Code, moral damages are recoverable. 42
6. A contract to transport passengers is quite different in kind and degree from any other contractual
relation. 43And this, because of the relation which an air-carrier sustains with the public. Its business
is mainly with the travelling public. It invites people to avail of the comforts and advantages it offers.
The contract of air carriage, therefore, generates a relation attended with a public duty. Neglect or
malfeasance of the carrier's employees, naturally, could give ground for an action for damages.
Passengers do not contract merely for transportation. They have a right to be treated by the carrier's
employees with kindness, respect, courtesy and due consideration. They are entitled to be protected
against personal misconduct, injurious language, indignities and abuses from such employees. So it
is, that any rule or discourteous conduct on the part of employees towards a passenger gives the
latter an action for damages against the carrier. 44
Thus, "Where a steamship company 45 had accepted a passenger's check, it was a breach of
contract and a tort, giving a right of action for its agent in the presence of third persons to falsely
notify her that the check was worthless and demand payment under threat of ejection, though the
language used was not insulting and she was not ejected." 46 And this, because, although the
relation of passenger and carrier is "contractual both in origin and nature" nevertheless "the act that
breaks the contract may be also a tort". 47 And in another case, "Where a passenger on a railroad
train, when the conductor came to collect his fare tendered him the cash fare to a point where the
train was scheduled not to stop, and told him that as soon as the train reached such point he would
pay the cash fare from that point to destination, there was nothing in the conduct of the passenger
which justified the conductor in using insulting language to him, as by calling him a lunatic," 48 and
the Supreme Court of South Carolina there held the carrier liable for the mental suffering of said
passenger.
1awphl.nt

Petitioner's contract with Carrascoso is one attended with public duty. The stress of Carrascoso's
action as we have said, is placed upon his wrongful expulsion. This is a violation of public duty by
the petitioner air carrier a case of quasi-delict. Damages are proper.
7. Petitioner draws our attention to respondent Carrascoso's testimony, thus
Q You mentioned about an attendant. Who is that attendant and purser?
A When we left already that was already in the trip I could not help it. So one of the
flight attendants approached me and requested from me my ticket and I said, What for? and
she said, "We will note that you transferred to the tourist class". I said, "Nothing of that kind.
That is tantamount to accepting my transfer." And I also said, "You are not going to note
anything there because I am protesting to this transfer".
Q Was she able to note it?
A No, because I did not give my ticket.
Q About that purser?
A Well, the seats there are so close that you feel uncomfortable and you don't have enough
leg room, I stood up and I went to the pantry that was next to me and the purser was there.
He told me, "I have recorded the incident in my notebook." He read it and translated it to me
because it was recorded in French "First class passenger was forced to go to the
tourist class against his will, and that the captain refused to intervene."
Mr. VALTE
I move to strike out the last part of the testimony of the witness because the best evidence
would be the notes. Your Honor.
COURT
I will allow that as part of his testimony. 49
Petitioner charges that the finding of the Court of Appeals that the purser made an entry in his
notebook reading "First class passenger was forced to go to the tourist class against his will, and
that the captain refused to intervene" is predicated upon evidence [Carrascoso's testimony above]
which is incompetent. We do not think so. The subject of inquiry is not the entry, but the ouster
incident. Testimony on the entry does not come within the proscription of the best evidence rule.
Such testimony is admissible. 49a
Besides, from a reading of the transcript just quoted, when the dialogue happened, the impact of the
startling occurrence was still fresh and continued to be felt. The excitement had not as yet died
down. Statements then, in this environment, are admissible as part of the res gestae. 50 For, they
grow "out of the nervous excitement and mental and physical condition of the declarant". 51 The
utterance of the purser regarding his entry in the notebook was spontaneous, and related to the
circumstances of the ouster incident. Its trustworthiness has been guaranteed. 52 It thus escapes the
operation of the hearsay rule. It forms part of the res gestae.

At all events, the entry was made outside the Philippines. And, by an employee of petitioner. It would
have been an easy matter for petitioner to have contradicted Carrascoso's testimony. If it were really
true that no such entry was made, the deposition of the purser could have cleared up the matter.
We, therefore, hold that the transcribed testimony of Carrascoso is admissible in evidence.
8. Exemplary damages are well awarded. The Civil Code gives the court ample power to grant
exemplary damages in contracts and quasi- contracts. The only condition is that defendant should
have "acted in a wanton, fraudulent, reckless, oppressive, or malevolent manner." 53 The manner of
ejectment of respondent Carrascoso from his first class seat fits into this legal precept. And this, in
addition to moral damages.54
9. The right to attorney's fees is fully established. The grant of exemplary damages justifies a similar
judgment for attorneys' fees. The least that can be said is that the courts below felt that it is but just
and equitable that attorneys' fees be given. 55 We do not intend to break faith with the tradition that
discretion well exercised as it was here should not be disturbed.
10. Questioned as excessive are the amounts decreed by both the trial court and the Court of
Appeals, thus: P25,000.00 as moral damages; P10,000.00, by way of exemplary damages, and
P3,000.00 as attorneys' fees. The task of fixing these amounts is primarily with the trial court. 56 The
Court of Appeals did not interfere with the same. The dictates of good sense suggest that we give
our imprimatur thereto. Because, the facts and circumstances point to the reasonableness thereof. 57
On balance, we say that the judgment of the Court of Appeals does not suffer from reversible error.
We accordingly vote to affirm the same. Costs against petitioner. So ordered.
Concepcion, C.J., Reyes, J.B.L., Barrera, Dizon, Regala, Makalintal, Zaldivar and Castro, JJ.,
concur.
Bengzon, J.P., J., took no part.
Footnotes
Civil Case No. 38810, "Rafael Carrascoso, plaintiff, vs. Air France, defendant," R.A., pp. 7980.
1

C.A.-G.R. No. 26522-R, "Rafael Carrascoso, plaintiff-appellee, vs. Air France, defendantappellant."
2

Appendix A, petitioner's brief, pp 146-147. See also R.A., pp. 66-67.

Petitioner's brief, p. 142.

Section 12, Article VIII, Constitution.

Section 1, Rule 36, Rules of Court. See also Section 2, Rule 120, in reference to judgments
in criminal cases.
6

Sec. 4. Rule 51; Sec. 33(2), Judiciary Act of 1948, as amended.

Edwards vs. McCoy, 22 Phil. 598, 601; Yangco vs. Court of First Instance of Manila, et al.,
29 Phil. 183, 191.
8

Braga vs. Millora, 3 Phil. 458, 465.

10

Id.

Aringo vs. Arena 14 Phil. 263, 266; emphasis supplied.

11

12

Reyes vs. People. 71 Phil. 598, 600.

People vs. Manigque 35 O.G., No. 94, pp. 1682, 1683, citing Section 133 of the Code of
Civil Procedure and Section 12, Art. VIII, Constitution, supra.
13

14

Badger et al. vs. Boyd, 65 S.W. (2d), pp. 601, 610.

15

Section 5, (m) and (o), Rule 131, Rules of Court.

16

In re Good's Estate, 266 P. (2d), pp. 719, 729.

17

Badger et al. vs. Boyd, supra.

18

Goduco vs. Court of Appeals, et al., L-17647, February 28, 1964.

19

Section 2, Rule 45, Rules of Court, formerly Section 2, Rule 46 of the Rules of Court.

Medel, et al. vs. Calasanz, et al. L-14835, August 31, 1960; Astraquillo, et al. vs. Javier, et
al., L-20034, January 30, 1965.
20

21

Petitioner's brief in the Court of Appeals, pp. 82-98.

22

Decision of the Court of Appeals, Appendix A, petitioner's brief, pp. 148-149.

23

R.A., pp. 67, 73.

24

5 B C.J.S., p. 295; 3 Am. Jur. p. 678.

25

3 Am. Jur., pp. 677-678.

26

See Garcia Valdez vs. Seterana Tuason, 40 Phil, 943, 951.

27

Carrascoso's ticket, according to petitioner (brief, pp. 7-8), shows:

Segment or leg
1. Manila to
Hongkong
2. Hongkong to
Saigon
3. Saigon to Beirut

28

Carrier

Flight No.

Date of
Departure

PAL

300A

March 30

VN(Air
693
Vietnam)
AF(Air France) 245

Petitioner's brief, p. 50; see also id., pp. 37 and 46.

March 31
March 31

29

Id., p. 103.

30

Ibid., p. 102.

Article 2220, Civil Code reads: "Willful injury to property may be a legal ground for awarding
moral damages if the court should find that, under the circumstances, such damages are
justly due. The same rule applies to breaches of contract where the defendant acted
fraudulently or in bad faith."
31

32

R.A., p. 2-4; emphasis supplied.

33

R.A., P. 5; second cause of action.

Copeland vs. Dunehoo et al., 138 S.E., 267, 270. See also 25 C.J.S., pp. 758-759; 15 Am.
Jur., pp. 766-767.
34

Statement of Attorney Villegas for respondent Carrascoso in open court. Respondent's

brief, p. 33.
35

Section 5, Rule 10, Rules of Court, in part reads: "SEC. 5. Amendment to conform to or
authorize presentation of evidence.When issues not raised by the pleadings are tried by
express or implied consent of the parties, they shall be treated in all respects, as if they had
been raised in the pleadings. Such amendment of the pleadings as may be necessary to
cause them to conform to the evidence and to raise these issues may be made upon motion
of any party at any time, even after judgment; but failure so to amend does not affect the
result of the trial of these issues ..."; Co Tiamco vs. Diaz, etc., et al., 75 Phil. 672, 679; J.M.
Tuason & Co., Inc., etc. vs. Bolanos, 95 Phil. 106, 110.
36

37

Decision, Court of Appeals, Appendix A of petitioner's brief, pp. 147-148.

38

Decision of the Court of Appeals, Appendix A of petitioner's brief, pp. 147-151.

Words & Phrases, Perm. Ed., Vol. 5, p. 13, citing Warfield Natural Gas Co. vs. Allen, 59
S.W. (2d) 534, 538.
39

40

R.A., p.74; emphasis supplied.

41

Article 2180, Civil Code.

42

Philippine Refining Co. vs. Garcia, et al., L-21871 and L-21962, September 27, 1966.

43

See Section 4, Chapter 3, Title VIII, Civil Code.

44

4 R.C.L., pp. 1174-1175.

An air carrier is a common carrier; and air transportation is similar or analogous to land and
water transportation. Mendoza vs. Philippine Air Lines, Inc., 90 Phil. 836, 841-842.
45

46

Austro-American S.S. Co. vs. Thomas, 248 F. 231.

47

Id., p. 233.

48

Lipman vs. Atlantic Coast Line R. Co., 93 S.E. 714, 716.

49

Petitioner's brief, pp, 104-105.

49a

V Moran, Comments on the Rules of Court, 1963 ed., p. 76.

50

Section 36, Rule 130, Rules of Court.

51

IV Martin, Rules of Court in the Philippines, 1963 ed., p. 324.

52

Ibid.

53

Article 2232, Civil Code.

54

Article 2229, Civil Code.

55

Article 2208, (1) and (11), Civil Code.

Coleongco vs. Claparols, L-18616, March 31, 1964; Corpus vs. Cuaderno, et al., L-23721,
March 31, 1965.
56

Cf. Yutuk vs. Manila Electric Company, L-13016, May 31, 1961; Lopez et al. vs. Pan
American World Airways, L-22415, March 30, 1966.
57

G.R. No. L-4977

March 22, 1910

DAVID TAYLOR, plaintiff-appellee,

vs.
THE MANILA ELECTRIC RAILROAD AND LIGHT COMPANY, defendant-appellant.
W. H. Lawrence, for appellant.
W. L. Wright, for appellee.
CARSON, J.:
An action to recover damages for the loss of an eye and other injuries, instituted by David Taylor, a
minor, by his father, his nearest relative.
The defendant is a foreign corporation engaged in the operation of a street railway and an electric
light system in the city of Manila. Its power plant is situated at the eastern end of a small island in the
Pasig River within the city of Manila, known as the Isla del Provisor. The power plant may be
reached by boat or by crossing a footbridge, impassable for vehicles, at the westerly end of the
island.
The plaintiff, David Taylor, was at the time when he received the injuries complained of, 15 years of
age, the son of a mechanical engineer, more mature than the average boy of his age, and having
considerable aptitude and training in mechanics.

On the 30th of September, 1905, plaintiff, with a boy named Manuel Claparols, about 12 years of
age, crossed the footbridge to the Isla del Provisor, for the purpose of visiting one Murphy, an
employee of the defendant, who and promised to make them a cylinder for a miniature engine.
Finding on inquiry that Mr. Murphy was not in his quarters, the boys, impelled apparently by youthful
curiosity and perhaps by the unusual interest which both seem to have taken in machinery, spent
some time in wandering about the company's premises. The visit was made on a Sunday afternoon,
and it does not appear that they saw or spoke to anyone after leaving the power house where they
had asked for Mr. Murphy.
After watching the operation of the travelling crane used in handling the defendant's coal, they
walked across the open space in the neighborhood of the place where the company dumped in the
cinders and ashes from its furnaces. Here they found some twenty or thirty brass fulminating caps
scattered on the ground. These caps are approximately of the size and appearance of small pistol
cartridges and each has attached to it two long thin wires by means of which it may be discharged
by the use of electricity. They are intended for use in the explosion of blasting charges of dynamite,
and have in themselves a considerable explosive power. After some discussion as to the ownership
of the caps, and their right to take them, the boys picked up all they could find, hung them on stick,
of which each took end, and carried them home. After crossing the footbridge, they met a little girl
named Jessie Adrian, less than 9 years old, and all three went to the home of the boy Manuel. The
boys then made a series of experiments with the caps. They trust the ends of the wires into an
electric light socket and obtained no result. They next tried to break the cap with a stone and failed.
Manuel looked for a hammer, but could not find one. Then they opened one of the caps with a knife,
and finding that it was filled with a yellowish substance they got matches, and David held the cap
while Manuel applied a lighted match to the contents. An explosion followed, causing more or less
serious injuries to all three. Jessie, who when the boys proposed putting a match to the contents of
the cap, became frightened and started to run away, received a slight cut in the neck. Manuel had
his hand burned and wounded, and David was struck in the face by several particles of the metal
capsule, one of which injured his right eye to such an extent as to the necessitate its removal by the
surgeons who were called in to care for his wounds.
The evidence does definitely and conclusively disclose how the caps came to be on the defendant's
premises, nor how long they had been there when the boys found them. It appears, however, that
some months before the accident, during the construction of the defendant's plant, detonating caps
of the same size and kind as those found by the boys were used in sinking a well at the power plant
near the place where the caps were found; and it also appears that at or about the time when these
caps were found, similarly caps were in use in the construction of an extension of defendant's street
car line to Fort William McKinley. The caps when found appeared to the boys who picked them up to
have been lying for a considerable time, and from the place where they were found would seem to
have been discarded as detective or worthless and fit only to be thrown upon the rubbish heap.
No measures seems to have been adopted by the defendant company to prohibit or prevent visitors
from entering and walking about its premises unattended, when they felt disposed so to do. As
admitted in defendant counsel's brief, "it is undoubtedly true that children in their play sometimes
crossed the foot bridge to the islands;" and, we may add, roamed about at will on the uninclosed
premises of the defendant, in the neighborhood of the place where the caps were found. There is
evidence that any effort ever was made to forbid these children from visiting the defendant
company's premises, although it must be assumed that the company or its employees were aware of
the fact that they not infrequently did so.
Two years before the accident, plaintiff spent four months at sea, as a cabin boy on one of the
interisland transports. Later he took up work in his father's office, learning mechanical drawing and
mechanical engineering. About a month after his accident he obtained employment as a mechanical

draftsman and continued in that employment for six months at a salary of P2.50 a day; and it
appears that he was a boy of more than average intelligence, taller and more mature both mentally
and physically than most boys of fifteen.
The facts set out in the foregoing statement are to our mind fully and conclusively established by the
evidence of record, and are substantially admitted by counsel. The only questions of fact which are
seriously disputed are plaintiff's allegations that the caps which were found by plaintiff on defendant
company's premises were the property of the defendant, or that they had come from its possession
and control, and that the company or some of its employees left them exposed on its premises at the
point where they were found.
The evidence in support of these allegations is meager, and the defendant company, apparently
relying on the rule of law which places the burden of proof of such allegations upon the plaintiff,
offered no evidence in rebuttal, and insists that plaintiff failed in his proof. We think, however, that
plaintiff's evidence is sufficient to sustain a finding in accord with his allegations in this regard.
It was proven that caps, similar to those found by plaintiff, were used, more or less extensively, on
the McKinley extension of the defendant company's track; that some of these caps were used in
blasting a well on the company's premises a few months before the accident; that not far from the
place where the caps were found the company has a storehouse for the materials, supplies and so
forth, used by it in its operations as a street railway and a purveyor of electric light; and that the
place, in the neighborhood of which the caps were found, was being used by the company as a sort
of dumping ground for ashes and cinders. Fulminating caps or detonators for the discharge by
electricity of blasting charges by dynamite are not articles in common use by the average citizen,
and under all the circumstances, and in the absence of all evidence to the contrary, we think that the
discovery of twenty or thirty of these caps at the place where they were found by the plaintiff on
defendant's premises fairly justifies the inference that the defendant company was either the owner
of the caps in question or had the caps under its possession and control. We think also that the
evidence tends to disclose that these caps or detonators were willfully and knowingly thrown by the
company or its employees at the spot where they were found, with the expectation that they would
be buried out of the sight by the ashes which it was engaged in dumping in that neighborhood, they
being old and perhaps defective; and, however this may be, we are satisfied that the evidence is
sufficient to sustain a finding that the company or some of its employees either willfully or through an
oversight left them exposed at a point on its premises which the general public, including children at
play, where not prohibited from visiting, and over which the company knew or ought to have known
that young boys were likely to roam about in pastime or in play.
Counsel for appellant endeavors to weaken or destroy the probative value of the facts on which
these conclusions are based by intimidating or rather assuming that the blasting work on the
company's well and on its McKinley extension was done by contractors. It was conclusively proven,
however, that while the workman employed in blasting the well was regularly employed by J. G.
White and Co., a firm of contractors, he did the work on the well directly and immediately under the
supervision and control of one of defendant company's foremen, and there is no proof whatever in
the record that the blasting on the McKinley extension was done by independent contractors. Only
one witness testified upon this point, and while he stated that he understood that a part of this work
was done by contract, he could not say so of his own knowledge, and knew nothing of the terms and
conditions of the alleged contract, or of the relations of the alleged contractor to the defendant
company. The fact having been proven that detonating caps were more or less extensively employed
on work done by the defendant company's directions and on its behalf, we think that the company
should have introduced the necessary evidence to support its contention if it wished to avoid the not
unreasonable inference that it was the owner of the material used in these operations and that it was
responsible for tortious or negligent acts of the agents employed therein, on the ground that this

work had been intrusted to independent contractors as to whose acts the maxim respondent
superior should not be applied. If the company did not in fact own or make use of caps such as
those found on its premises, as intimated by counsel, it was a very simple matter for it to prove that
fact, and in the absence of such proof we think that the other evidence in the record sufficiently
establishes the contrary, and justifies the court in drawing the reasonable inference that the caps
found on its premises were its property, and were left where they were found by the company or
some of its employees.
Plaintiff appears to have rested his case, as did the trial judge his decision in plaintiff's favor, upon
the provisions of article 1089 of the Civil Code read together with articles 1902, 1903, and 1908 of
that code.
ART. 1089 Obligations are created by law, by contracts, by quasi-contracts, and illicit acts
and omissions or by those in which any kind of fault or negligence occurs.
ART. 1902 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.
ART. 1903 The obligation imposed by the preceding 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 damages caused
by their employees in the service of the branches in which the latter may be employed or on
account 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.
ART. 1908 The owners shall also be liable for the damage caused
1 By the explosion of machines which may not have been cared for with due diligence, and
for kindling of explosive substances which may not have been placed in a safe and proper
place.
Counsel for the defendant and appellant rests his appeal strictly upon his contention that the facts
proven at the trial do not established the liability of the defendant company under the provisions of
these articles, and since we agree with this view of the case, it is not necessary for us to consider
the various questions as to form and the right of action (analogous to those raised in the case of
Rakes vs. Atlantic, Gulf and Pacific Co., 7 Phil. Rep., 359), which would, perhaps, be involved in a
decision affirming the judgment of the court below.

We agree with counsel for appellant that under the Civil Code, as under the generally accepted
doctrine in the United States, the plaintiff in an action such as that under consideration, in order to
establish his right to a recovery, must establish by competent evidence:
(1) Damages to the plaintiff.
(2) Negligence by act or omission of which defendant personally, or some person for whose
acts it must respond, was guilty.
(3) The connection of cause and effect between the negligence and the damage.
These proposition are, of course, elementary, and do not admit of discussion, the real difficulty
arising in the application of these principles to the particular facts developed in the case under
consideration.
It is clear that the accident could not have happened and not the fulminating caps been left exposed
at the point where they were found, or if their owner had exercised due care in keeping them in an
appropriate place; but it is equally clear that plaintiff would not have been injured had he not, for his
own pleasure and convenience, entered upon the defendant's premises, and strolled around thereon
without the express permission of the defendant, and had he not picked up and carried away the
property of the defendant which he found on its premises, and had he not thereafter deliberately cut
open one of the caps and applied a match to its contents.
But counsel for plaintiff contends that because of plaintiff's youth and inexperience, his entry upon
defendant company's premises, and the intervention of his action between the negligent act of
defendant in leaving the caps exposed on its premises and the accident which resulted in his injury
should not be held to have contributed in any wise to the accident, which should be deemed to be
the direct result of defendant's negligence in leaving the caps exposed at the place where they were
found by the plaintiff, and this latter the proximate cause of the accident which occasioned the
injuries sustained by him.
In support of his contention, counsel for plaintiff relies on the doctrine laid down in many of the courts
of last resort in the United States in the cases known as the "Torpedo" and "Turntable" cases, and
the cases based thereon.
In a typical cases, the question involved has been whether a railroad company is liable for an injury
received by an infant of tender years, who from mere idle curiosity, or for the purposes of
amusement, enters upon the railroad company's premises, at a place where the railroad company
knew, or had good reason to suppose, children would be likely to come, and there found explosive
signal torpedoes left unexposed by the railroad company's employees, one of which when carried
away by the visitor, exploded and injured him; or where such infant found upon the premises a
dangerous machine, such as a turntable, left in such condition as to make it probable that children in
playing with it would be exposed to accident or injury therefrom and where the infant did in fact suffer
injury in playing with such machine.
In these, and in great variety of similar cases, the great weight of authority holds the owner of the
premises liable.
As laid down in Railroad Co. vs. Stout (17 Wall. (84 U. S.), 657), wherein the principal question was
whether a railroad company was liable for in injury received by an infant while upon its premises,
from idle curiosity, or for purposes of amusement, if such injury was, under circumstances,

attributable to the negligence of the company), the principles on which these cases turn are that
"while a railroad company is not bound to the same degree of care in regard to mere strangers who
are unlawfully upon its premises that it owes to passengers conveyed by it, it is not exempt from
responsibility to such strangers for injuries arising from its negligence or from its tortious acts;" and
that "the conduct of an infant of tender years is not to be judged by the same rule which governs that
of adult. While it is the general rule in regard to an adult that to entitle him to recover damages for an
injury resulting from the fault or negligence of another he must himself have been free from fault,
such is not the rule in regard to an infant of tender years. The care and caution required of a child is
according to his maturity and capacity only, and this is to be determined in each case by the
circumstances of the case."
The doctrine of the case of Railroad Company vs. Stout was vigorously controverted and sharply
criticized in several state courts, and the supreme court of Michigan in the case of Ryan vs.
Towar (128 Mich., 463) formally repudiated and disapproved the doctrine of the Turntable cases,
especially that laid down in Railroad Company vs. Stout, in a very able decision wherein it held, in
the language of the syllabus: (1) That the owner of the land is not liable to trespassers thereon for
injuries sustained by them, not due to his wanton or willful acts; (2) that no exception to this rule
exists in favor of children who are injured by dangerous machinery naturally calculated to attract
them to the premises; (3) that an invitation or license to cross the premises of another can not be
predicated on the mere fact that no steps have been taken to interfere with such practice; (4) that
there is no difference between children and adults as to the circumstances that will warrant the
inference of an invitation or a license to enter upon another's premises.
Similar criticisms of the opinion in the case of Railroad Company vs. Stout were indulged in by the
courts in Connecticut and Massachusetts. (Nolan vs. Railroad Co., 53 Conn., 461; 154 Mass., 349).
And the doctrine has been questioned in Wisconsin, Pennsylvania, New Hampshire, and perhaps in
other States.
On the other hand, many if not most of the courts of last resort in the United States, citing and
approving the doctrine laid down in England in the leading case of Lynch vs. Nurding (1 Q. B., 29,
35, 36), lay down the rule in these cases in accord with that announced in the Railroad Company vs.
Stout (supra), and the Supreme Court of the United States, in a unanimous opinion delivered by
Justice Harlan in the case of Union Pacific Railway Co. vs. McDonal and reconsidered the doctrine
laid down in Railroad Co. vs. Stout, and after an exhaustive and critical analysis and review of many
of the adjudged cases, both English and American, formally declared that it adhered "to the
principles announced in the case of Railroad Co. vs. Stout."
In the case of Union Pacific Railway Co. vs. MacDonald (supra) the facts were as follows: The
plaintiff, a boy 12 years of age, out of curiosity and for his own pleasure, entered upon and visited
the defendant's premises, without defendant's express permission or invitation, and while there, was
by accident injured by falling into a burning slack pile of whose existence he had no knowledge, but
which had been left by defendant on its premises without any fence around it or anything to give
warning of its dangerous condition, although defendant knew or had reason the interest or curiosity
of passers-by. On these facts the court held that the plaintiff could not be regarded as a mere
trespasser, for whose safety and protection while on the premises in question, against the unseen
danger referred to, the defendant was under no obligation to make provision.
We quote at length from the discussion by the court of the application of the principles involved to
the facts in that case, because what is said there is strikingly applicable in the case at bar, and would
seem to dispose of defendant's contention that, the plaintiff in this case being a trespasser, the
defendant company owed him no duty, and in no case could be held liable for injuries which would
not have resulted but for the entry of plaintiff on defendant's premises.

We adhere to the principles announced in Railroad Co. vs. Stout (supra). Applied to the case
now before us, they require us to hold that the defendant was guilty of negligence in leaving
unguarded the slack pile, made by it in the vicinity of its depot building. It could have
forbidden all persons from coming to its coal mine for purposes merely of curiosity and
pleasure. But it did not do so. On the contrary, it permitted all, without regard to age, to visit
its mine, and witness its operation. It knew that the usual approach to the mine was by a
narrow path skirting its slack pit, close to its depot building, at which the people of the village,
old and young, would often assemble. It knew that children were in the habit of frequenting
that locality and playing around the shaft house in the immediate vicinity of the slack pit. The
slightest regard for the safety of these children would have suggested that they were in
danger from being so near a pit, beneath the surface of which was concealed (except when
snow, wind, or rain prevailed) a mass of burning coals into which a child might accidentally
fall and be burned to death. Under all the circumstances, the railroad company ought not to
be heard to say that the plaintiff, a mere lad, moved by curiosity to see the mine, in the
vicinity of the slack pit, was a trespasser, to whom it owed no duty, or for whose protection it
was under no obligation to make provisions.
In Townsend vs. Wathen (9 East, 277, 281) it was held that if a man dangerous traps, baited
with flesh, in his own ground, so near to a highway, or to the premises of another, that dogs
passing along the highway, or kept in his neighbors premises, would probably be attracted by
their instinct into the traps, and in consequence of such act his neighbor's dogs be so
attracted and thereby injured, an action on the case would lie. "What difference," said Lord
Ellenborough, C.J., "is there in reason between drawing the animal into the trap by means of
his instinct which he can not resist, and putting him there by manual force?" What difference,
in reason we may observe in this case, is there between an express license to the children of
this village to visit the defendant's coal mine, in the vicinity of its slack pile, and an implied
license, resulting from the habit of the defendant to permit them, without objection or
warning, to do so at will, for purposes of curiosity or pleasure? Referring it the case
of Townsend vs. Wathen, Judge Thompson, in his work on the Law of Negligence, volume 1,
page 305, note, well says: "It would be a barbarous rule of law that would make the owner of
land liable for setting a trap thereon, baited with stinking meat, so that his neighbor's dog
attracted by his natural instinct, might run into it and be killed, and which would exempt him
from liability for the consequence of leaving exposed and unguarded on his land a
dangerous machine, so that his neighbor's child attracted to it and tempted to intermeddle
with it by instincts equally strong, might thereby be killed or maimed for life."
Chief Justice Cooley, voicing the opinion of the supreme court of Michigan, in the case of Powers vs.
Harlow (53 Mich., 507), said that (p. 515):
Children, wherever they go, must be expected to act upon childlike instincts and impulses;
and others who are chargeable with a duty of care and caution toward them must calculate
upon this, and take precautions accordingly. If they leave exposed to the observation of
children anything which would be tempting to them, and which they in their immature
judgment might naturally suppose they were at liberty to handle or play with, they should
expect that liberty to be taken.
And the same eminent jurist in his treatise or torts, alluding to the doctrine of implied invitation to visit
the premises of another, says:
In the case of young children, and other persons not fully sui juris, an implied license might
sometimes arise when it would not on behalf of others. Thus leaving a tempting thing for
children to play with exposed, where they would be likely to gather for that purpose, may be

equivalent to an invitation to them to make use of it; and, perhaps, if one were to throw away
upon his premises, near the common way, things tempting to children, the same implication
should arise. (Chap. 10, p. 303.)
The reasoning which led the Supreme Court of the United States to its conclusion in the cases
of Railroad Co. vs. Stout (supra) and Union Pacific Railroad Co. vs. McDonald (supra) is not less
cogent and convincing in this jurisdiction than in that wherein those cases originated. Children here
are actuated by similar childish instincts and impulses. Drawn by curiosity and impelled by the
restless spirit of youth, boys here as well as there will usually be found whenever the public is
permitted to congregate. The movement of machinery, and indeed anything which arouses the
attention of the young and inquiring mind, will draw them to the neighborhood as inevitably as does
the magnet draw the iron which comes within the range of its magnetic influence. The owners of
premises, therefore, whereon things attractive to children are exposed, or upon which the public are
expressly or impliedly permitted to enter or upon which the owner knows or ought to know children
are likely to roam about for pastime and in play, " must calculate upon this, and take precautions
accordingly." In such cases the owner of the premises can not be heard to say that because the child
has entered upon his premises without his express permission he is a trespasser to whom the owner
owes no duty or obligation whatever. The owner's failure to take reasonable precautions to prevent
the child from entering his premises at a place where he knows or ought to know that children are
accustomed to roam about of to which their childish instincts and impulses are likely to attract them
is at least equivalent to an implied license to enter, and where the child does enter under such
conditions the owner's failure to take reasonable precautions to guard the child against injury from
unknown or unseen dangers, placed upon such premises by the owner, is clearly a breach of duty,
responsible, if the child is actually injured, without other fault on its part than that it had entered on
the premises of a stranger without his express invitation or permission. To hold otherwise would be
expose all the children in the community to unknown perils and unnecessary danger at the whim of
the owners or occupants of land upon which they might naturally and reasonably be expected to
enter.
This conclusion is founded on reason, justice, and necessity, and neither is contention that a man
has a right to do what will with his own property or that children should be kept under the care of
their parents or guardians, so as to prevent their entering on the premises of others is of sufficient
weight to put in doubt. In this jurisdiction as well as in the United States all private property is
acquired and held under the tacit condition that it shall not be so used as to injure the equal rights
and interests of the community (see U. S. vs. Toribio,1 No. 5060, decided January 26, 1910), and
except as to infants of very tender years it would be absurd and unreasonable in a community
organized as is that in which we lived to hold that parents or guardian are guilty of negligence or
imprudence in every case wherein they permit growing boys and girls to leave the parental roof
unattended, even if in the event of accident to the child the negligence of the parent could in any
event be imputed to the child so as to deprive it a right to recover in such cases a point which we
neither discuss nor decide.
But while we hold that the entry of the plaintiff upon defendant's property without defendant's
express invitation or permission would not have relieved defendant from responsibility for injuries
incurred there by plaintiff, without other fault on his part, if such injury were attributable to the
negligence of the defendant, we are of opinion that under all the circumstances of this case the
negligence of the defendant in leaving the caps exposed on its premises was not the proximate
cause of the injury received by the plaintiff, which therefore was not, properly speaking, "attributable
to the negligence of the defendant," and, on the other hand, we are satisfied that plaintiffs action in
cutting open the detonating cap and putting match to its contents was the proximate cause of the
explosion and of the resultant injuries inflicted upon the plaintiff, and that the defendant, therefore is
not civilly responsible for the injuries thus incurred.

Plaintiff contends, upon the authority of the Turntable and Torpedo cases, that because of plaintiff's
youth the intervention of his action between the negligent act of the defendant in leaving the caps
exposed on its premises and the explosion which resulted in his injury should not be held to have
contributed in any wise to the accident; and it is because we can not agree with this proposition,
although we accept the doctrine of the Turntable and Torpedo cases, that we have thought proper to
discuss and to consider that doctrine at length in this decision. As was said in case of Railroad Co.
vs. Stout (supra), "While it is the general rule in regard to an adult that to entitle him to recover
damages for an injury resulting from the fault or negligence of another he must himself have been
free from fault, such is not the rule in regard to an infant of tender years. The care and caution
required of a child is according to his maturity and capacity only, and this is to be determined in each
case by the circumstances of the case." As we think we have shown, under the reasoning on which
rests the doctrine of the Turntable and Torpedo cases, no fault which would relieve defendant of
responsibility for injuries resulting from its negligence can be attributed to the plaintiff, a well-grown
boy of 15 years of age, because of his entry upon defendant's uninclosed premises without express
permission or invitation' but it is wholly different question whether such youth can be said to have
been free from fault when he willfully and deliberately cut open the detonating cap, and placed a
match to the contents, knowing, as he undoubtedly did, that his action would result in an explosion.
On this point, which must be determined by "the particular circumstances of this case," the doctrine
laid down in the Turntable and Torpedo cases lends us no direct aid, although it is worthy of
observation that in all of the "Torpedo" and analogous cases which our attention has been directed,
the record discloses that the plaintiffs, in whose favor judgments have been affirmed, were of such
tender years that they were held not to have the capacity to understand the nature or character of
the explosive instruments which fell into their hands.
In the case at bar, plaintiff at the time of the accident was a well-grown youth of 15, more mature
both mentally and physically than the average boy of his age; he had been to sea as a cabin boy;
was able to earn P2.50 a day as a mechanical draftsman thirty days after the injury was incurred;
and the record discloses throughout that he was exceptionally well qualified to take care of himself.
The evidence of record leaves no room for doubt that, despite his denials on the witness stand, he
well knew the explosive character of the cap with which he was amusing himself. The series of
experiments made by him in his attempt to produce an explosion, as described by the little girl who
was present, admit of no other explanation. His attempt to discharge the cap by the use of electricity,
followed by his efforts to explode it with a stone or a hammer, and the final success of his endeavors
brought about by the application of a match to the contents of the caps, show clearly that he knew
what he was about. Nor can there be any reasonable doubt that he had reason to anticipate that the
explosion might be dangerous, in view of the fact that the little girl, 9 years of age, who was within
him at the time when he put the match to the contents of the cap, became frightened and ran away.
True, he may not have known and probably did not know the precise nature of the explosion which
might be expected from the ignition of the contents of the cap, and of course he did not anticipate
the resultant injuries which he incurred; but he well knew that a more or less dangerous explosion
might be expected from his act, and yet he willfully, recklessly, and knowingly produced the
explosion. It would be going far to say that "according to his maturity and capacity" he exercised
such and "care and caution" as might reasonably be required of him, or that defendant or anyone
else should be held civilly responsible for injuries incurred by him under such circumstances.
The law fixes no arbitrary age at which a minor can be said to have the necessary capacity to
understand and appreciate the nature and consequences of his own acts, so as to make it
negligence on his part to fail to exercise due care and precaution in the commission of such acts;
and indeed it would be impracticable and perhaps impossible so to do, for in the very nature of
things the question of negligence necessarily depends on the ability of the minor to understand the
character of his own acts and their consequences; and the age at which a minor can be said to have
such ability will necessarily depends of his own acts and their consequences; and at the age at

which a minor can be said to have such ability will necessarily vary in accordance with the varying
nature of the infinite variety of acts which may be done by him. But some idea of the presumed
capacity of infants under the laws in force in these Islands may be gathered from an examination of
the varying ages fixed by our laws at which minors are conclusively presumed to be capable of
exercising certain rights and incurring certain responsibilities, though it can not be said that these
provisions of law are of much practical assistance in cases such as that at bar, except so far as they
illustrate the rule that the capacity of a minor to become responsible for his own acts varies with the
varying circumstances of each case. Under the provisions of the Penal Code a minor over fifteen
years of age is presumed to be capable of committing a crime and is to held criminally responsible
therefore, although the fact that he is less than eighteen years of age will be taken into consideration
as an extenuating circumstance (Penal Code, arts. 8 and 9). At 10 years of age a child may, under
certain circumstances, choose which parent it prefers to live with (Code of Civil Procedure, sec.
771). At 14 may petition for the appointment of a guardian (Id., sec. 551), and may consent or refuse
to be adopted (Id., sec. 765). And males of 14 and females of 12 are capable of contracting a legal
marriage (Civil Code, art. 83; G. O., No. 68, sec. 1).
We are satisfied that the plaintiff in this case had sufficient capacity and understanding to be
sensible of the danger to which he exposed himself when he put the match to the contents of the
cap; that he was sui juris in the sense that his age and his experience qualified him to understand
and appreciate the necessity for the exercise of that degree of caution which would have avoided the
injury which resulted from his own deliberate act; and that the injury incurred by him must be held to
have been the direct and immediate result of his own willful and reckless act, so that while it may be
true that these injuries would not have been incurred but for the negligence act of the defendant in
leaving the caps exposed on its premises, nevertheless plaintiff's own act was the proximate and
principal cause of the accident which inflicted the injury.
The rule of the Roman law was: Quod quis ex culpa sua damnum sentit, non intelligitur sentire.
(Digest, book 50, tit. 17 rule 203.)
The Patidas contain the following provisions:
The just thing is that a man should suffer the damage which comes to him through his own
fault, and that he can not demand reparation therefor from another. (Law 25, tit. 5, Partida 3.)
And they even said that when a man received an injury through his own acts the grievance
should be against himself and not against another. (Law 2, tit. 7, Partida 2.)
According to ancient sages, when a man received an injury through his own acts the
grievance should be against himself and not against another. (Law 2, tit. 7 Partida 2.)
And while there does not appear to be anything in the Civil Code which expressly lays down the law
touching contributory negligence in this jurisdiction, nevertheless, the interpretation placed upon its
provisions by the supreme court of Spain, and by this court in the case of Rakes vs. Atlantic, Gulf
and Pacific Co. (7 Phil. Rep., 359), clearly deny to the plaintiff in the case at bar the right to recover
damages from the defendant, in whole or in part, for the injuries sustained by him.
The judgment of the supreme court of Spain of the 7th of March, 1902 (93 Jurisprudencia Civil, 391),
is directly in point. In that case the court said:
According to the doctrine expressed in article 1902 of the Civil Code, fault or negligence is a
source of obligation when between such negligence and the injury there exists the relation of
cause and effect; but if the injury produced should not be the result of acts or omissions of a

third party, the latter has no obligation to repair the same, although such acts or omission
were imprudent or unlawful, and much less when it is shown that the immediate cause of the
injury was the negligence of the injured party himself.
The same court, in its decision of June 12, 1900, said that "the existence of the alleged fault or
negligence is not sufficient without proof that it, and no other cause, gave rise to the damage."
See also judgment of October 21, 1903.
To similar effect Scaevola, the learned Spanish writer, writing under that title in
his Jurisprudencia del Codigo Civil (1902 Anuario, p. 455), commenting on the decision of
March 7, 1902 of the Civil Code, fault or negligence gives rise to an obligation when between
it and the damage there exists the relation of cause and effect; but if the damage caused
does not arise from the acts or omissions of a third person, there is no obligation to make
good upon the latter, even though such acts or omissions be imprudent or illegal, and much
less so when it is shown that the immediate cause of the damage has been the recklessness
of the injured party himself.
And again
In accordance with the fundamental principle of proof, that the burden thereof is upon the
plaintiff, it is apparent that it is duty of him who shall claim damages to establish their
existence. The decisions of April 9, 1896, and March 18, July, and September 27, 1898, have
especially supported the principle, the first setting forth in detail the necessary points of the
proof, which are two: An act or omission on the part of the person who is to be charged with
the liability, and the production of the damage by said act or omission.
This includes, by inference, the establishment of a relation of cause or effect between the act
or omission and the damage; the latter must be the direct result of one of the first two. As the
decision of March 22, 1881, said, it is necessary that the damages result immediately and
directly from an act performed culpably and wrongfully; "necessarily presupposing a legal
ground for imputability." (Decision of October 29, 1887.)
Negligence is not presumed, but must be proven by him who alleges it.
(Scavoela, Jurisprudencia del Codigo Civil, vol. 6, pp. 551-552.)
(Cf. decisions of supreme court of Spain of June 12, 1900, and June 23, 1900.)
Finally we think the doctrine in this jurisdiction applicable to the case at bar was definitely settled in
this court in the maturely considered case of Rakes vs. Atlantic, Gulf and Pacific Co. (supra),
wherein we held that while "There are many cases (personal injury cases) was exonerated," on the
ground that "the negligence of the plaintiff was the immediate cause of the casualty" (decisions of
the 15th of January, the 19th of February, and the 7th of March, 1902, stated in Alcubilla's Index of
that year); none of the cases decided by the supreme court of Spain "define the effect to be given
the negligence of its causes, though not the principal one, and we are left to seek the theory of the
civil law in the practice of other countries;" and in such cases we declared that law in this jurisdiction
to require the application of "the principle of proportional damages," but expressly and definitely
denied the right of recovery when the acts of the injured party were the immediate causes of the
accident.
The doctrine as laid down in that case is as follows:

Difficulty seems to be apprehended in deciding which acts of the injured party shall be
considered immediate causes of the accident. The test is simple. Distinction must be made
between the accident and the injury, between the event itself, without which there could have
been no accident, and those acts of the victim not entering into it, independent of it, but
contributing to his own proper hurt. For instance, the cause of the accident under review was
the displacement of the crosspiece or the failure to replace it. This produces the event giving
occasion for damagesthat is, the sinking of the track and the sliding of the iron rails. To this
event, the act of the plaintiff in walking by the side of the car did not contribute, although it
was an element of the damage which came to himself. Had the crosspiece been out of place
wholly or partly through his act or omission of duty, that would have been one of the
determining causes of the event or accident, for which he would have been responsible.
Where he contributes to the principal occurrence, as one of its determining factors, he can
not recover. Where, in conjunction with the occurrence, he contributes only to his own injury,
he may recover the amount that the defendant responsible for the event should pay for such
injury, less a sum deemed a suitable equivalent for his own imprudence.
We think it is quite clear that under the doctrine thus stated, the immediate cause of the explosion,
the accident which resulted in plaintiff's injury, was in his own act in putting a match to the contents
of the cap, and that having "contributed to the principal occurrence, as one of its determining factors,
he can not recover."
We have not deemed it necessary to examine the effect of plaintiff's action in picking up upon
defendant's premises the detonating caps, the property of defendant, and carrying the relation of
cause and effect between the negligent act or omission of the defendant in leaving the caps exposed
on its premises and the injuries inflicted upon the plaintiff by the explosion of one of these caps.
Under the doctrine of the Torpedo cases, such action on the part of an infant of very tender years
would have no effect in relieving defendant of responsibility, but whether in view of the well-known
fact admitted in defendant's brief that "boys are snappers-up of unconsidered trifles," a youth of the
age and maturity of plaintiff should be deemed without fault in picking up the caps in question under
all the circumstances of this case, we neither discuss nor decide.
Twenty days after the date of this decision let judgment be entered reversing the judgment of the
court below, without costs to either party in this instance, and ten days thereafter let the record be
returned to the court wherein it originated, where the judgment will be entered in favor of the
defendant for the costs in first instance and the complaint dismissed without day. So ordered.
Arellano, C.J., Torres and Moreland, JJ., concur.
Johnson, J., concurs in the result.

Footnotes
1

Phil. Rep., 85.