G.R. No.

97336 February 19, 1993

GASHEM SHOOKAT BAKSH, petitioner,
vs.
HON. COURT OF APPEALS and MARILOU T. GONZALES, respondents.
Public Attorney's Office for petitioner.
Corleto R. Castro for private respondent.

DAVIDE, JR., J.:

This is an appeal by certiorari under Rule 45 of the Rules of Court seeking to review
and set aside the Decision 1 of the respondent Court of Appeals in CA-G.R. CV No.
24256 which affirmed in toto the 16 October 1939 Decision of Branch 38 (Lingayen) of
the Regional Trial Court (RTC) of Pangasinan in Civil Case No. 16503. Presented is the
issue of whether or not damages may be recovered for a breach of promise to marry on
the basis of Article 21 of the Civil Code of the Philippines.
The antecedents of this case are not complicated:
On 27 October 1987, private respondent, without the assistance of counsel, filed with
the aforesaid trial court a complaint 2 for damages against the petitioner for the alleged
violation of their agreement to get married. She alleges in said complaint that: she is
twenty-two (22) years old, single, Filipino and a pretty lass of good moral character and
reputation duly respected in her community; petitioner, on the other hand, is an Iranian
citizen residing at the Lozano Apartments, Guilig, Dagupan City, and is an exchange
student taking a medical course at the Lyceum Northwestern Colleges in Dagupan City;
before 20 August 1987, the latter courted and proposed to marry her; she accepted his
love on the condition that they would get married; they therefore agreed to get married
after the end of the school semester, which was in October of that year; petitioner then
visited the private respondent's parents in Baaga, Bugallon, Pangasinan to secure
their approval to the marriage; sometime in 20 August 1987, the petitioner forced her to
live with him in the Lozano Apartments; she was a virgin before she began living with
him; a week before the filing of the complaint, petitioner's attitude towards her started to
change; he maltreated and threatened to kill her; as a result of such maltreatment, she
sustained injuries; during a confrontation with a representative of the barangay captain
of Guilig a day before the filing of the complaint, petitioner repudiated their marriage
agreement and asked her not to live with him anymore and; the petitioner is already

married to someone living in Bacolod City. Private respondent then prayed for judgment
ordering the petitioner to pay her damages in the amount of not less than P45,000.00,
reimbursement for actual expenses amounting to P600.00, attorney's fees and costs,
and granting her such other relief and remedies as may be just and equitable. The
complaint was docketed as Civil Case No. 16503.
In his Answer with Counterclaim, 3 petitioner admitted only the personal circumstances of
the parties as averred in the complaint and denied the rest of the allegations either for
lack of knowledge or information sufficient to form a belief as to the truth thereof or
because the true facts are those alleged as his Special and Affirmative Defenses. He
thus claimed that he never proposed marriage to or agreed to be married with the
private respondent; he neither sought the consent and approval of her parents nor
forced her to live in his apartment; he did not maltreat her, but only told her to stop
coming to his place because he discovered that she had deceived him by stealing his
money and passport; and finally, no confrontation took place with a representative of the
barangay captain. Insisting, in his Counterclaim, that the complaint is baseless and
unfounded and that as a result thereof, he was unnecessarily dragged into court and
compelled to incur expenses, and has suffered mental anxiety and a besmirched
reputation, he prayed for an award of P5,000.00 for miscellaneous expenses and
P25,000.00 as moral damages.
After conducting a pre-trial on 25 January 1988, the trial court issued a Pre-Trial Order 4
embodying the stipulated facts which the parties had agreed upon, to wit:
1. That the plaintiff is single and resident (sic) of Baaga, Bugallon, Pangasinan, while
the defendant is single, Iranian citizen and resident (sic) of Lozano Apartment, Guilig,
Dagupan City since September 1, 1987 up to the present;
2. That the defendant is presently studying at Lyceum Northwestern, Dagupan City,
College of Medicine, second year medicine proper;
3. That the plaintiff is (sic) an employee at Mabuhay Luncheonette , Fernandez Avenue,
Dagupan City since July, 1986 up to the present and a (sic) high school graduate;
4. That the parties happened to know each other when the manager of the Mabuhay
Luncheonette, Johhny Rabino introduced the defendant to the plaintiff on August 3, 1986.

After trial on the merits, the lower court, applying Article 21 of the Civil Code, rendered
on 16 October 1989 a decision 5 favoring the private respondent. The petitioner was thus
ordered to pay the latter damages and attorney's fees; the dispositive portion of the
decision reads:

IN THE LIGHT of the foregoing consideration, judgment is hereby rendered in favor of the
plaintiff and against the defendant.
1. Condemning (sic) the defendant to pay the plaintiff the sum of twenty thousand
(P20,000.00) pesos as moral damages.
2. Condemning further the defendant to play the plaintiff the sum of three thousand
(P3,000.00) pesos as atty's fees and two thousand (P2,000.00) pesos at (sic) litigation
expenses and to pay the costs.
3. All other claims are denied. 6

The decision is anchored on the trial court's findings and conclusions that (a) petitioner
and private respondent were lovers, (b) private respondent is not a woman of loose
morals or questionable virtue who readily submits to sexual advances, (c) petitioner,
through machinations, deceit and false pretenses, promised to marry private
respondent, d) because of his persuasive promise to marry her, she allowed herself to
be deflowered by him, (e) by reason of that deceitful promise, private respondent and
her parents in accordance with Filipino customs and traditions made some
preparations for the wedding that was to be held at the end of October 1987 by looking
for pigs and chickens, inviting friends and relatives and contracting sponsors, (f)
petitioner did not fulfill his promise to marry her and (g) such acts of the petitioner, who
is a foreigner and who has abused Philippine hospitality, have offended our sense of
morality, good customs, culture and traditions. The trial court gave full credit to the
private respondent's testimony because, inter alia, she would not have had the temerity
and courage to come to court and expose her honor and reputation to public scrutiny
and ridicule if her claim was false. 7
The above findings and conclusions were culled from the detailed summary of the
evidence for the private respondent in the foregoing decision, digested by the
respondent Court as follows:
According to plaintiff, who claimed that she was a virgin at the time and that she never
had a boyfriend before, defendant started courting her just a few days after they first met.
He later proposed marriage to her several times and she accepted his love as well as his
proposal of marriage on August 20, 1987, on which same day he went with her to her
hometown of Baaga, Bugallon, Pangasinan, as he wanted to meet her parents and
inform them of their relationship and their intention to get married. The photographs Exhs.
"A" to "E" (and their submarkings) of defendant with members of plaintiff's family or with
plaintiff, were taken that day. Also on that occasion, defendant told plaintiffs parents and
brothers and sisters that he intended to marry her during the semestral break in October,
1987, and because plaintiff's parents thought he was good and trusted him, they agreed
to his proposal for him to marry their daughter, and they likewise allowed him to stay in
their house and sleep with plaintiff during the few days that they were in Bugallon. When
plaintiff and defendant later returned to Dagupan City, they continued to live together in

defendant's apartment. However, in the early days of October, 1987, defendant would tie
plaintiff's hands and feet while he went to school, and he even gave her medicine at 4
o'clock in the morning that made her sleep the whole day and night until the following
day. As a result of this live-in relationship, plaintiff became pregnant, but defendant gave
her some medicine to abort the fetus. Still plaintiff continued to live with defendant and
kept reminding him of his promise to marry her until he told her that he could not do so
because he was already married to a girl in Bacolod City. That was the time plaintiff left
defendant, went home to her parents, and thereafter consulted a lawyer who
accompanied her to the barangay captain in Dagupan City. Plaintiff, her lawyer, her
godmother, and a barangay tanod sent by the barangay captain went to talk to defendant
to still convince him to marry plaintiff, but defendant insisted that he could not do so
because he was already married to a girl in Bacolod City, although the truth, as stipulated
by the parties at the pre-trial, is that defendant is still single.
Plaintiff's father, a tricycle driver, also claimed that after defendant had informed them of
his desire to marry Marilou, he already looked for sponsors for the wedding, started
preparing for the reception by looking for pigs and chickens, and even already invited
many relatives and friends to the forthcoming wedding. 8

Petitioner appealed the trial court's decision to the respondent Court of Appeals which
docketed the case as CA-G.R. CV No. 24256. In his Brief, 9 he contended that the trial
court erred (a) in not dismissing the case for lack of factual and legal basis and (b) in
ordering him to pay moral damages, attorney's fees, litigation expenses and costs.
On 18 February 1991, respondent Court promulgated the challenged decision 10
affirming in toto the trial court's ruling of 16 October 1989. In sustaining the trial court's
findings of fact, respondent Court made the following analysis:
First of all, plaintiff, then only 21 years old when she met defendant who was already 29
years old at the time, does not appear to be a girl of loose morals. It is uncontradicted
that she was a virgin prior to her unfortunate experience with defendant and never had
boyfriend. She is, as described by the lower court, a barrio lass "not used and
accustomed to trend of modern urban life", and certainly would (sic) not have allowed
"herself to be deflowered by the defendant if there was no persuasive promise made by
the defendant to marry her." In fact, we agree with the lower court that plaintiff and
defendant must have been sweethearts or so the plaintiff must have thought because of
the deception of defendant, for otherwise, she would not have allowed herself to be
photographed with defendant in public in so (sic) loving and tender poses as those
depicted in the pictures Exhs. "D" and "E". We cannot believe, therefore, defendant's
pretense that plaintiff was a nobody to him except a waitress at the restaurant where he
usually ate. Defendant in fact admitted that he went to plaintiff's hometown of Baaga,
Bugallon, Pangasinan, at least thrice; at (sic) the town fiesta on February 27, 1987 (p. 54,
tsn May 18, 1988), at (sic) a beach party together with the manager and employees of
the Mabuhay Luncheonette on March 3, 1987 (p. 50, tsn id.), and on April 1, 1987 when
he allegedly talked to plaintiff's mother who told him to marry her daughter (pp. 55-56, tsn
id.). Would defendant have left Dagupan City where he was involved in the serious study
of medicine to go to plaintiff's hometown in Baaga, Bugallon, unless there was (sic)

some kind of special relationship between them? And this special relationship must
indeed have led to defendant's insincere proposal of marriage to plaintiff, communicated
not only to her but also to her parents, and (sic) Marites Rabino, the owner of the
restaurant where plaintiff was working and where defendant first proposed marriage to
her, also knew of this love affair and defendant's proposal of marriage to plaintiff, which
she declared was the reason why plaintiff resigned from her job at the restaurant after
she had accepted defendant's proposal (pp. 6-7, tsn March 7, 1988).
Upon the other hand, appellant does not appear to be a man of good moral character and
must think so low and have so little respect and regard for Filipino women that he openly
admitted that when he studied in Bacolod City for several years where he finished his
B.S. Biology before he came to Dagupan City to study medicine, he had a common-law
wife in Bacolod City. In other words, he also lived with another woman in Bacolod City but
did not marry that woman, just like what he did to plaintiff. It is not surprising, then, that he
felt so little compunction or remorse in pretending to love and promising to marry plaintiff,
a young, innocent, trustful country girl, in order to satisfy his lust on her. 11

and then concluded:

In sum, we are strongly convinced and so hold that it was defendant-appellant's
fraudulent and deceptive protestations of love for and promise to marry plaintiff that made
her surrender her virtue and womanhood to him and to live with him on the honest and
sincere belief that he would keep said promise, and it was likewise these (sic) fraud and
deception on appellant's part that made plaintiff's parents agree to their daughter's livingin with him preparatory to their supposed marriage. And as these acts of appellant are
palpably and undoubtedly against morals, good customs, and public policy, and are even
gravely and deeply derogatory and insulting to our women, coming as they do from a
foreigner who has been enjoying the hospitality of our people and taking advantage of the
opportunity to study in one of our institutions of learning, defendant-appellant should
indeed be made, under Art. 21 of the Civil Code of the Philippines, to compensate for the
moral damages and injury that he had caused plaintiff, as the lower court ordered him to
do in its decision in this case. 12

Unfazed by his second defeat, petitioner filed the instant petition on 26 March 1991; he
raises therein the single issue of whether or not Article 21 of the Civil Code applies to
the case at bar. 13
It is petitioner's thesis that said Article 21 is not applicable because he had not
committed any moral wrong or injury or violated any good custom or public policy; he
has not professed love or proposed marriage to the private respondent; and he has
never maltreated her. He criticizes the trial court for liberally invoking Filipino customs,
traditions and culture, and ignoring the fact that since he is a foreigner, he is not
conversant with such Filipino customs, traditions and culture. As an Iranian Moslem, he
is not familiar with Catholic and Christian ways. He stresses that even if he had made a
promise to marry, the subsequent failure to fulfill the same is excusable or tolerable
because of his Moslem upbringing; he then alludes to the Muslim Code which

purportedly allows a Muslim to take four (4) wives and concludes that on the basis
thereof, the trial court erred in ruling that he does not posses good moral character.
Moreover, his controversial "common law life" is now his legal wife as their marriage had
been solemnized in civil ceremonies in the Iranian Embassy. As to his unlawful
cohabitation with the private respondent, petitioner claims that even if responsibility
could be pinned on him for the live-in relationship, the private respondent should also be
faulted for consenting to an illicit arrangement. Finally, petitioner asseverates that even
if it was to be assumed arguendo that he had professed his love to the private
respondent and had also promised to marry her, such acts would not be actionable in
view of the special circumstances of the case. The mere breach of promise is not
actionable. 14
On 26 August 1991, after the private respondent had filed her Comment to the petition
and the petitioner had filed his Reply thereto, this Court gave due course to the petition
and required the parties to submit their respective Memoranda, which they
subsequently complied with.
As may be gleaned from the foregoing summation of the petitioner's arguments in
support of his thesis, it is clear that questions of fact, which boil down to the issue of the
credibility of witnesses, are also raised. It is the rule in this jurisdiction that appellate
courts will not disturb the trial court's findings as to the credibility of witnesses, the latter
court having heard the witnesses and having had the opportunity to observe closely
their deportment and manner of testifying, unless the trial court had plainly overlooked
facts of substance or value which, if considered, might affect the result of the case. 15
Petitioner has miserably failed to convince Us that both the appellate and trial courts
had overlooked any fact of substance or values which could alter the result of the case.
Equally settled is the rule that only questions of law may be raised in a petition for
review on certiorari under Rule 45 of the Rules of Court. It is not the function of this
Court to analyze or weigh all over again the evidence introduced by the parties before
the lower court. There are, however, recognized exceptions to this rule. Thus, in Medina
vs. Asistio, Jr., 16 this Court took the time, again, to enumerate these exceptions:
xxx xxx xxx
(1) When the conclusion is a finding grounded entirely on speculation, surmises or
conjectures (Joaquin v. Navarro, 93 Phil. 257 [1953]); (2) When the inference made is
manifestly mistaken, absurb or impossible (Luna v. Linatok, 74 Phil. 15 [1942]); (3) Where
there is a grave abuse of discretion (Buyco v. People, 95 Phil. 453 [1955]); (4) When the
judgment is based on a misapprehension of facts (Cruz v. Sosing,
L-4875, Nov. 27, 1953); (5) When the findings of fact are conflicting (Casica v. Villaseca,
L-9590 Ap. 30, 1957; unrep.) (6) When the Court of Appeals, in making its findings, went

beyond the issues of the case and the same is contrary to the admissions of both
appellate and appellee (Evangelista v. Alto Surety and Insurance Co., 103 Phil. 401
[1958]);
(7) The findings of the Court of Appeals are contrary to those of the trial court (Garcia v.
Court of Appeals, 33 SCRA 622 [1970]; Sacay v. Sandiganbayan, 142 SCRA 593 [1986]);
(8) When the findings of fact are conclusions without citation of specific evidence on
which they are based (Ibid.,); (9) When the facts set forth in the petition as well as in the
petitioners main and reply briefs are not disputed by the respondents (Ibid.,); and (10)
The finding of fact of the Court of Appeals is premised on the supposed absence of
evidence and is contradicted by the evidence on record (Salazar v. Gutierrez, 33 SCRA
242 [1970]).

Petitioner has not endeavored to joint out to Us the existence of any of the above
quoted exceptions in this case. Consequently, the factual findings of the trial and
appellate courts must be respected.
And now to the legal issue.
The existing rule is that a breach of promise to marry per se is not an actionable wrong.
17
Congress deliberately eliminated from the draft of the New Civil Code the provisions
that would have made it so. The reason therefor is set forth in the report of the Senate
Committees on the Proposed Civil Code, from which We quote:
The elimination of this chapter is proposed. That breach of promise to marry is not
actionable has been definitely decided in the case of De Jesus vs. Syquia. 18 The history
of breach of promise suits in the United States and in England has shown that no other
action lends itself more readily to abuse by designing women and unscrupulous men. It is
this experience which has led to the abolition of rights of action in the so-called Heart
Balm suits in many of the American states. . . . 19

This notwithstanding, the said Code contains a provision, Article 21, which is designed
to expand the concept of torts or quasi-delict in this jurisdiction by granting adequate
legal remedy for the untold number of moral wrongs which is impossible for human
foresight to specifically enumerate and punish in the statute books. 20
As the Code Commission itself stated in its Report:
But the Code Commission had gone farther than the sphere of wrongs defined or
determined by positive law. Fully sensible that there are countless gaps in the statutes,
which leave so many victims of moral wrongs helpless, even though they have actually
suffered material and moral injury, the Commission has deemed it necessary, in the
interest of justice, to incorporate in the proposed Civil Code the following rule:
Art. 23. Any person who wilfully 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.

An example will illustrate the purview of the foregoing norm: "A" seduces the nineteenyear old daughter of "X". A promise of marriage either has not been made, or can not be
proved. The girl becomes pregnant. Under the present laws, there is no crime, as the girl
is above nineteen years of age. Neither can any civil action for breach of promise of
marriage be filed. Therefore, though the grievous moral wrong has been committed, and
though the girl and family have suffered incalculable moral damage, she and her parents
cannot bring action for damages. But under the proposed article, she and her parents
would have such a right of action.
Thus at one stroke, the legislator, if the forgoing rule is approved, would vouchsafe
adequate legal remedy for that untold number of moral wrongs which it is impossible for
human foresight to provide for specifically in the statutes. 21

Article 2176 of the Civil Code, which defines a quasi-delict thus:

Whoever by act or omission causes damage to another, there being fault or negligence,
is obliged to pay for the damage done. Such fault or negligence, if there is no pre-existing
contractual relation between the parties, is called a quasi-delict and is governed by the
provisions of this Chapter.

is limited to negligent acts or omissions and excludes the notion of willfulness or

intent. Quasi-delict, known in Spanish legal treatises as culpa aquiliana, is a civil
law concept while torts is an Anglo-American or common law concept. Torts is
much broader than culpa aquiliana because it includes not only negligence, but
international criminal acts as well such as assault and battery, false imprisonment
and deceit. In the general scheme of the Philippine legal system envisioned by
the Commission responsible for drafting the New Civil Code, intentional and
malicious acts, with certain exceptions, are to be governed by the Revised Penal
Code while negligent acts or omissions are to be covered by Article 2176 of the
Civil Code. 22 In between these opposite spectrums are injurious acts which, in
the absence of Article 21, would have been beyond redress. Thus, Article 21 fills
that vacuum. It is even postulated that together with Articles 19 and 20 of the
Civil Code, Article 21 has greatly broadened the scope of the law on civil wrongs;
it has become much more supple and adaptable than the Anglo-American law on
torts. 23
In the light of the above laudable purpose of Article 21, We are of the opinion, and so
hold, that where a man's promise to marry is in fact the proximate cause of the
acceptance of his love by a woman and his representation to fulfill that promise
thereafter becomes the proximate cause of the giving of herself unto him in a sexual
congress, proof that he had, in reality, no intention of marrying her and that the promise
was only a subtle scheme or deceptive device to entice or inveigle her to accept him
and to obtain her consent to the sexual act, could justify the award of damages pursuant
to Article 21 not because of such promise to marry but because of the fraud and deceit

behind it and the willful injury to her honor and reputation which followed thereafter. It is
essential, however, that such injury should have been committed in a manner contrary
to morals, good customs or public policy.
In the instant case, respondent Court found that it was the petitioner's "fraudulent and
deceptive protestations of love for and promise to marry plaintiff that made her
surrender her virtue and womanhood to him and to live with him on the honest and
sincere belief that he would keep said promise, and it was likewise these fraud and
deception on appellant's part that made plaintiff's parents agree to their daughter's
living-in with him preparatory to their supposed marriage." 24 In short, the private
respondent surrendered her virginity, the cherished possession of every single Filipina,
not because of lust but because of moral seduction the kind illustrated by the Code
Commission in its example earlier adverted to. The petitioner could not be held liable for
criminal seduction punished under either Article 337 or Article 338 of the Revised Penal
Code because the private respondent was above eighteen (18) years of age at the time
of the seduction.
Prior decisions of this Court clearly suggest that Article 21 may be applied in a breach of
promise to marry where the woman is a victim of moral seduction. Thus, in
Hermosisima vs. Court of Appeals, 25 this Court denied recovery of damages to the
woman because:
. . . we find ourselves unable to say that petitioner is morally guilty of seduction, not only
because he is approximately ten (10) years younger than the complainant who was
around thirty-six (36) years of age, and as highly enlightened as a former high school
teacher and a life insurance agent are supposed to be when she became intimate with
petitioner, then a mere apprentice pilot, but, also, because the court of first instance
found that, complainant "surrendered herself" to petitioner because, "overwhelmed by her
love" for him, she "wanted to bind" him by having a fruit of their engagement even before
they had the benefit of clergy.

In Tanjanco vs. Court of Appeals, 26 while this Court likewise hinted at possible recovery
if there had been moral seduction, recovery was eventually denied because We were
not convinced that such seduction existed. The following enlightening disquisition and
conclusion were made in the said case:
The Court of Appeals seem to have overlooked that the example set forth in the Code
Commission's memorandum refers to a tort upon a minor who had been seduced. The
essential feature is seduction, that in law is more than mere sexual intercourse, or a
breach of a promise of marriage; it connotes essentially the idea of deceit, enticement,
superior power or abuse of confidence on the part of the seducer to which the woman
has yielded (U.S. vs. Buenaventura, 27 Phil. 121; U.S. vs. Arlante, 9 Phil. 595).
It has been ruled in the Buenaventura case (supra) that

To constitute seduction there must in all cases be some sufficient

promise or inducement and the woman must yield because of the
promise or other inducement. If she consents merely from carnal lust and
the intercourse is from mutual desire, there is no seduction (43 Cent. Dig.
tit. Seduction, par. 56) She must be induced to depart from the path of
virtue by the use of some species of arts, persuasions and wiles, which
are calculated to have and do have that effect, and which result in her
person to ultimately submitting her person to the sexual embraces of her
seducer (27 Phil. 123).
And in American Jurisprudence we find:
On the other hand, in an action by the woman, the enticement,
persuasion or deception is the essence of the injury; and a mere proof of
intercourse is insufficient to warrant a recovery.
Accordingly it is not seduction where the willingness arises out of sexual
desire of curiosity of the female, and the defendant merely affords her
the needed opportunity for the commission of the act. It has been
emphasized that to allow a recovery in all such cases would tend to the
demoralization of the female sex, and would be a reward for unchastity
by which a class of adventuresses would be swift to profit. (47 Am. Jur.
662)
xxx xxx xxx
Over and above the partisan allegations, the fact stand out that for one whole year, from
1958 to 1959, the plaintiff-appellee, a woman of adult age, maintain intimate sexual
relations with appellant, with repeated acts of intercourse. Such conduct is incompatible
with the idea of seduction. Plainly there is here voluntariness and mutual passion; for had
the appellant been deceived, had she surrendered exclusively because of the deceit,
artful persuasions and wiles of the defendant, she would not have again yielded to his
embraces, much less for one year, without exacting early fulfillment of the alleged
promises of marriage, and would have cut short all sexual relations upon finding that
defendant did not intend to fulfill his defendant did not intend to fulfill his promise. Hence,
we conclude that no case is made under article 21 of the Civil Code, and no other cause
of action being alleged, no error was committed by the Court of First Instance in
dismissing the complaint. 27

In his annotations on the Civil Code, 28 Associate Justice Edgardo L. Paras, who
recently retired from this Court, opined that in a breach of promise to marry where there
had been carnal knowledge, moral damages may be recovered:
. . . if there be criminal or moral seduction, but not if the intercourse was due to mutual
lust. (Hermosisima vs. Court of Appeals,
L-14628, Sept. 30, 1960; Estopa vs. Piansay, Jr., L-14733, Sept. 30, 1960; Batarra vs.
Marcos, 7 Phil. 56 (sic); Beatriz Galang vs. Court of Appeals, et al., L-17248, Jan. 29,
1962). (In other words, if the CAUSE be the promise to marry, and the EFFECT be the

carnal knowledge, there is a chance that there was criminal or moral seduction, hence
recovery of moral damages will prosper. If it be the other way around, there can be no
recovery of moral damages, because here mutual lust has intervened). . . .

together with "ACTUAL damages, should there be any, such as the expenses for
the wedding presentations (See Domalagon v. Bolifer, 33 Phil. 471).
Senator Arturo M. Tolentino

29

is also of the same persuasion:

It is submitted that the rule in Batarra vs. Marcos, 30 still subsists, notwithstanding the
incorporation of the present article 31 in the Code. The example given by the Code
Commission is correct, if there was seduction, not necessarily in the legal sense, but in
the vulgar sense of deception. But when the sexual act is accomplished without any
deceit or qualifying circumstance of abuse of authority or influence, but the woman,
already of age, has knowingly given herself to a man, it cannot be said that there is an
injury which can be the basis for indemnity.
But so long as there is fraud, which is characterized by willfulness (sic), the action lies.
The court, however, must weigh the degree of fraud, if it is sufficient to deceive the
woman under the circumstances, because an act which would deceive a girl sixteen
years of age may not constitute deceit as to an experienced woman thirty years of age.
But so long as there is a wrongful act and a resulting injury, there should be civil liability,
even if the act is not punishable under the criminal law and there should have been an
acquittal or dismissal of the criminal case for that reason.

We are unable to agree with the petitioner's alternative proposition to the effect that
granting, for argument's sake, that he did promise to marry the private respondent, the
latter is nevertheless also at fault. According to him, both parties are in pari delicto;
hence, pursuant to Article 1412(1) of the Civil Code and the doctrine laid down in
Batarra vs. Marcos, 32 the private respondent cannot recover damages from the
petitioner. The latter even goes as far as stating that if the private respondent had
"sustained any injury or damage in their relationship, it is primarily because of her own
doing, 33 for:
. . . She is also interested in the petitioner as the latter will become a doctor sooner or
later. Take notice that she is a plain high school graduate and a mere employee . . .
(Annex "C") or a waitress (TSN, p. 51, January 25, 1988) in a luncheonette and without
doubt, is in need of a man who can give her economic security. Her family is in dire need
of financial assistance. (TSN, pp. 51-53, May 18, 1988). And this predicament prompted
her to accept a proposition that may have been offered by the petitioner. 34

These statements reveal the true character and motive of the petitioner. It is clear that
he harbors a condescending, if not sarcastic, regard for the private respondent on
account of the latter's ignoble birth, inferior educational background, poverty and, as
perceived by him, dishonorable employment. Obviously then, from the very beginning,

he was not at all moved by good faith and an honest motive. Marrying with a woman so
circumstances could not have even remotely occurred to him. Thus, his profession of
love and promise to marry were empty words directly intended to fool, dupe, entice,
beguile and deceive the poor woman into believing that indeed, he loved her and would
want her to be his life's partner. His was nothing but pure lust which he wanted satisfied
by a Filipina who honestly believed that by accepting his proffer of love and proposal of
marriage, she would be able to enjoy a life of ease and security. Petitioner clearly
violated the Filipino's concept of morality and brazenly defied the traditional respect
Filipinos have for their women. It can even be said that the petitioner committed such
deplorable acts in blatant disregard of Article 19 of the Civil Code which directs every
person to act with justice, give everyone his due and observe honesty and good faith in
the exercise of his rights and in the performance of his obligations.
No foreigner must be allowed to make a mockery of our laws, customs and traditions.
The pari delicto rule does not apply in this case for while indeed, the private respondent
may not have been impelled by the purest of intentions, she eventually submitted to the
petitioner in sexual congress not out of lust, but because of moral seduction. In fact, it is
apparent that she had qualms of conscience about the entire episode for as soon as
she found out that the petitioner was not going to marry her after all, she left him. She is
not, therefore, in pari delicto with the petitioner. Pari delicto means "in equal fault; in a
similar offense or crime; equal in guilt or in legal fault." 35 At most, it could be conceded
that she is merely in delicto.
Equity often interferes for the relief of the less guilty of the parties, where his
transgression has been brought about by the imposition of undue influence of the party
on whom the burden of the original wrong principally rests, or where his consent to the
transaction was itself procured by
fraud. 36

In Mangayao vs. Lasud, 37 We declared:

Appellants likewise stress that both parties being at fault, there should be no action by
one against the other (Art. 1412, New Civil Code). This rule, however, has been
interpreted as applicable only where the fault on both sides is, more or less, equivalent. It
does not apply where one party is literate or intelligent and the other one is not. (c.f.
Bough vs. Cantiveros, 40 Phil. 209).

We should stress, however, that while We find for the private respondent, let it not be
said that this Court condones the deplorable behavior of her parents in letting her and
the petitioner stay together in the same room in their house after giving approval to their
marriage. It is the solemn duty of parents to protect the honor of their daughters and
infuse upon them the higher values of morality and dignity.

WHEREFORE, finding no reversible error in the challenged decision, the instant petition
is hereby DENIED, with costs against the petitioner.
SO ORDERED.
Summary of Garratt v. Dailey, 46 Wash. 2d 197, 279 P.2d 1091 (Wash. 1955).

Facts
Five year old Brian Dailey (D) pulled a chair out from under Ruth Garratt just as she was about
to sit causing her to fall and break her hip. Garratt brought suit for personal injuries and alleged
that Dailey had acted deliberately. The trial court entered judgment for Dailey and found that he
had not intended to injure Garratt. The court nevertheless made a finding of $11,000 in damages
in case the judgment was overturned on appeal. Dailey appealed.

Issues
1. In regards to the intentional tort of battery, is the element of intent satisfied if the
defendant knows with a substantial certainty that his act will result in a harmful or
offensive contact?
2. Can a five year old child be liable for an intentional tort?

Holding and Rule

1. Yes. In regards to the intentional tort of battery, the element of intent is satisfied if the
defendant knows with a substantial certainty that his act will result in a harmful or
offensive contact.
2. Yes. A five year old child can be liable for an intentional tort.
A minor is liable just as any other person when he has committed an intentional tort with force.

Elements of the Tort of Battery

Under the Restatement of Torts an actor who commits a direct or indirect act which is the legal
cause of a harmful contact with another is liable if: 1) the act is done with the intention of
bringing about a harmful or offensive contact or an apprehension thereof to the other or a third
person, and 2) the contact is not consented to by the other or the others consent thereto is
procured by fraud or duress, and 3) the contact is not otherwise privileged.
Intent requires that the act must be done for the purpose of causing the contact or
apprehension or with knowledge on the part of the actor that such contact or apprehension
is substantially certain to be produced. A battery would be established if a party acts with

substantial certainty that a result will occur. The mere absence of any intent to injure, play a
prank on, or embarrass the plaintiff, or to commit an assault and battery on her, would not
absolve the defendant of liability if in fact he had such knowledge.
If Garratt has proven to the satisfaction of the trial court that Dailey moved the chair while she
was in the act of sitting down, his action would patently have been for the purpose or with the
intent of causing her bodily contact with the ground, and she would be entitled to a judgment
against him for the resulting damages.

Disposition
Remanded for a clarification of findings regarding Daileys knowledge in order to determine
whether the element of intent is satisfied.

Note
This case is often misspelled as Garratt v. Daley.
Picard v. Barry Pontiac Buick, Inc.
Court: Supreme Court of Rhode Island (654 A.2d 690)
Year: 1995
Parties (role): Picard, Respondent (Plaintiff); Barry Pontiac Buick, Inc., Appellant (Defendant)
Page in Text: 891-893
Procedural History:
At trial court, plaintiff prevailed and was awarded $60,366 in compensatory damages and an
additional $6,350 in punitive damages. Defendant appealed on three issues: (1) claimed plaintiff
failed to prove assault, (2) claimed plaintiff failed to prove battery, and (3) damages were
excessive as a matter of law.
Facts of Case:
Plaintiff took her mothers car to dealer (Barry Pontiac) for inspection. Dealer failed inspection
because he claimed brakes needed replacing. Plaintiff took car to another inspection station, a
repair shop, where it passed inspection. Conflicts culminated in the plaintiff returning to repair
shop with automobile along with representatives of dealer, for car to be reinspected. During the
reinspection, plaintiff took the picture (with her camera) of one of the employees of the dealer
(also a defendant), at which point the employee pointed at the plaintiffs camera and asked, who
gave you permission to take my picture? and walked around car toward plaintiff asking the
question again. The plaintiff claimed the defendant lunged at her and turned her around. The
defendant denied the claims, conceding that he touched the camera with his index finger. The

plaintiff and her doctor claimed permanent damage to her back as a consequence of the
altercation.
Legal Issue:
(1) Did the defendants action constitute an assault?
(2) Did the defendants action constitute a battery?
(3) Where the damages awarded at trial excessive as a matter of law?
Rule:
(1) An assault is a physical act of a threatening nature or an offer of corporal injury which puts
an individual in reasonable fear of imminent bodily harm.
Policy:
Intent to injure is unnecessary when a person willfully sets in motion a force that in its ordinary
course causes the injury.
Items grasped by the hand or in some way an extension of ones body are construed statutorily
as part of the person.
Holding:
(1) Yes, defendants actions did constitute an assault (plaintiff has established a prima facie case
of assault).
(2) Yes, defendants offensive conduct with an object attached to or identified with plaintiffs
body was sufficient to constitute a battery.
(3) Yes, the court found that the compensatory damages were excessive, and that punitive
damages could not stand because there was no proof of malice or bad faith.
Reasoning:
(1) Assault it is a plaintiffs apprehension of injury which renders a defendants action
compensablethis apprehension must be the type of fear normally aroused in the mind of a
reasonable person. Plaintiff testified that she was frightened, and a review of the circumstances
attest that such a reaction was reasonable. References Prosser and Keeton on the Law of Torts
10 on the issue of damages for assault compensates mental disturbance
(2) Battery An intent to injure plaintiffis unnecessary in a situation in which a defendant
willfully sets in motion a force that in its ordinary course causes the injury. Referencing the
Restatement (Second) torts 18, comment c at 31, anything directly grasped by the hand which
[is] so intimately connected with ones body [is] to be universally regarded as part of the
person. Court found defendants touching of the plaintiffs camera as sufficient to prove battery.

(3) The medical evidence did not support the amount of compensatory damages. In addition, the
punitive damage award could not stand because there was no proof of malice or bad faith.
Judgment:
Supreme Court of Rhode Island affirmed the judgment of the Superior Court in respect to
defendants commission of assault and battery, but vacate the awards of compensatory and
punitive damages. The case is remanded to the Superior Court for a new trial on the damages
sustained by the plaintiff.
NAME:
Lopez v. Winchells Donut House, 126 Ill. App. 3d 46, 1984
FACTS:
was a clerk at donut shop
was called at her house and requested that she come to the shop. When she arrived Cesario
and Bell took her into the back office, closed and locked the door behind her.
Cesario and Bell accused her of stealing from the cash draw
testified that she at no time during the interrogation feared for her safety; at no time refused to
answer any question; and there was never a point that she said I want to leave and was
prevented from doing so.
PROCEDURE:
Trial court entered summary judgment for ; appeals.
ISSUE:
Did the court err by granting s motion for summary judgment as there exists a genuine issue of
material fact?
HOLDING:
The trial court properly granted s motion for summary judgment, as there exists no question of
material fact.
REASONING:
False imprisonment is defined as an unlawful restraint of an individuals personal liberty or
freedom of locomotion.
Ways in which an actor may bring about the confinement required as an element of false
imprisonment: (1) actual or apparent physical barriers; (2) overpowering physical force, (3)

threats of physical force; (4) other duress; and (5) asserted legal authority. Rest 2d. of Torts
secs. 38-41.
Moral pressure, as where the remains with the defendant to clear himself of suspicion of
theft *** is not enough; nor, as in the case of assault, are threats for the future ***. Prosser,
Torts sec. 11, at 45.
In the tort of false imprisonment, it is not enough for the to have felt compelled to remain in
the baking room in order to protect her reputation.
In this case, no evidence that yielded to constraint of a threat, express or implied, or to
physical force of any kind.
No evidence existed that accompanied Cesario against her will, and therefore, court could not
say that she was imprisoned or unlawfully detained by s employees.
DISPOSITION:
Summary Judgment affirmed

OPINION FILED JULY 20, 1984.

JOVITA (ESTHER) LOPEZ, PLAINTIFF-APPELLANT,
v.
WINCHELL'S DONUT HOUSE, DEFENDANT-APPELLEE.
Appeal from the Circuit Court of Cook County; the Hon. Thomas J. O'Brien, Judge,
presiding.
John Panici, of Chicago, for appellant.
Hubbard, Hubbard, O'Brien & Hall, of Chicago (Frederick W. Temple and John
Skapars, of counsel), for appellee.
JUSTICE LORENZ DELIVERED THE OPINION OF THE COURT:
Plaintiff appeals from an order of the circuit court granting defendant corporation's
motion for summary judgment. Plaintiff contends that the trial court erred in
entering summary judgment against her because a genuine issue of material fact
existed concerning her charge that she was falsely detained and imprisoned. For the
reasons which follow, we affirm the trial court's decision.
Count I of plaintiff's unverified two-count complaint alleged that plaintiff was
employed as a clerk in defendant's donut shop in Woodridge, for approximately

three years; that on or about April 8, 1981, defendant, through its agents and
employees, Ralph Bell and James Cesario, accused her of selling donuts without
registering sales and thereby pocketing defendant's monies; and that she was
falsely detained and imprisoned against her will in a room located on defendant's
premises, with force, and without probable and reasonable cause, by defendant's
employees. Count I of her complaint also alleged that as a result of defendant's
employees' wilful and wanton false imprisonment, she was exposed to public
disgrace; greatly injured in her good name and reputation; suffered, and still suffers,
great mental anguish, humiliation and shock; wrongfully terminated from her
employment; required to seek medical attention; all of which prevented her from
attending to her usual affairs.
Defendant filed its answer on August 19, 1981, denying the material allegations of
count I of plaintiff's complaint. Further, on February 9, 1983, defendant amended its
answer by filling an affirmative defense that alleged, inter alia, it was a merchant;
that any questioning of plaintiff by its employees was performed only after said
employees had reasonable grounds to believe that plaintiff had committed retail
theft while working for defendant; that any alleged detention for questioning was
limited solely to an inquiry as to whether plaintiff had failed to ring certain retail
sales; and that such inquiry took place in a reasonable manner and for a reasonable
length of time.
Defendant's motion for summary judgment on count I of the complaint set forth the
argument that plaintiff's complaint, sounding in false imprisonment and alleging
that she was held against her will by her employers in a certain room of a Winchell's
Donut House, was contradicted by her testimony in a discovery deposition.
Defendant argued that plaintiff testified in this deposition that she had voluntarily
complied with Messrs. Bell and Cesario's request to speak privately with her
regarding the matter of shortages in her register on April 9, 1981. Defendant further
argued that plaintiff testified that when she no longer wished to continue her
conversation with her employers, she got up and went home, electing never to
return to her job.
The motion included portions of plaintiff's deposition which disclosed the following.
James Cesario telephoned plaintiff at her home at 4:30 p.m. on April 9, 1981, and
asked her to come down to the donut shop; he did not explain his reasons for
wanting her to do so. As a result of this call, plaintiff walked to the store from her
home, arriving 10 minutes later. Upon her arrival at the store, Cesario asked her to
accompany him into the baking room, which was located at the rear of the store;
Ralph Bell was also present in the room. After Cesario asked plaintiff to sit down,
she indicated that they (Cesario and Bell) closed the door and locked it by putting a
"little latch on." She stated that the two men told her that they had proof that
spotters going from store to store had purchased two dozen donuts from her, but
that her register had not shown the sale. After refusing her request to view the

"proof," plaintiff stated that she was "too upset" to respond to their questioning
regarding the length of time that her alleged "shorting" of the cash drawer had been
going on.
She further stated that defendant's employees never told her that she had to
answer their questions or face the loss of her job; never directly threatened to fire
her; and made no threats of any kind to her during the interrogation. She further
testified that she at no time during the interrogation feared for her safety; that she
at no time refused to answer any question put to her; that there was never a point
in the interrogation that she said, "I want to leave" and was prevented from doing
so; and that she got up, left the room and went home when she first decided to do
so.
Plaintiff's written response to defendant's motion for summary judgment did not
contradict the statements that she had made in her discovery deposition. In her
affidavit filed in support of her response to defendant's motion for summary
judgment, plaintiff averred that (1) she left the baking room after she began to
shake, and when she felt that she was becoming ill; and (2) she was terminated
from her employment by defendant.
The trial court entered summary judgment for defendant. Plaintiff appeals from that
order. Count II of her complaint alleging defamation of character remains pending in
the trial court.
OPINION
1-3 It is well established that summary judgment determines whether any genuine
issue of material fact exists and summarily disposes of cases where no such fact
exists in order to avoid congestion of trial calendars and the expense of
unnecessary trials. (Loveland v. City of Lewistown (1980), 84 Ill. App.3d 190, 192,
405 N.E.2d 453.) The motion should be granted where the pleadings, exhibits,
depositions and affidavits of record show that there is no genuine issue of material
fact and that the movant is entitled to judgment as a matter of law. (Ill. Rev. Stat.
1981, ch. 110, par. 2-1005(c).) In addition, discovery depositions may be used in the
context of summary judgment proceedings "for any purpose for which an affidavit
may be used." See 87 Ill.2d R. 212(a)(4); see also Sierens v. Clausen (1975), 60
Ill.2d 585, 588, 328 N.E.2d 559.
4 In ruling on a motion for summary judgment, the trial court must construe
pleadings, depositions and affidavits included therein most strictly against the
movant and most liberally in favor of the non-movant. (Blaylock v. Toledo, Peoria &
Western R.R. Co. (1976), 43 Ill. App.3d 35, 37, 356 N.E.2d 639.) The defendant may
at any time move for summary judgment in his favor for all or any part of relief
sought against him. (Kusiciel v. LaSalle National Bank (1982), 106 Ill. App.3d 333,

338.) However, because summary judgment is a drastic method of disposing of

litigation, it should be granted only when the right of the movant is clear and free
from doubt. Hillblom v. Ivancsits (1979), 76 Ill. App.3d 306, 310, 395 N.E.2d 119.
Plaintiff asserts that the trial court erred in granting defendant's motion for
summary judgment as there exists a genuine issue of material fact. She posits that
she felt compelled to remain in the baking room so that she could protect her
reputation by protesting her innocence to the two men, and that she left the room
once she began to shake and feel ill. Additionally, she attributes her "serious
emotional upset" to her feelings of intimidation that she contends were caused by:
James Cesario's sitting directly next to her during questioning, yellow pad and pencil
in hand; Ralph Bell's repeated statement that his briefcase contained proof of her
guilt; and his raised voice.
5, 6 The common law tort of false imprisonment is defined as an unlawful restraint
of an individual's personal liberty or freedom of locomotion. (Johnson v. Jackson
(1963), 43 Ill. App.2d 251, 258, 193 N.E.2d 485; Shelton v. Barry (1946), 328 Ill.
App. 497, 506, 66 N.E.2d 697.) Imprisonment has been defined as "any unlawful
exercise or show of force by which a person is compelled to remain where he does
not wish to remain or to go where he does not wish to go." (McKendree v. Christy
(1961), 29 Ill. App.2d 195, 199, 172 N.E.2d 380.) In order for a false imprisonment
to be present, there must be actual or legal intent to restrain. Campbell v.
Kaczmarek (1976), 39 Ill. App.3d 465, 469, 350 N.E.2d 97.
Unlawful restraint may be effected by words alone, by acts alone or both
(Hassenauer v. F.W. Woolworth Co. (1942), 314 Ill. App. 569, 41 N.E.2d 979 (abstract
of opinion)); actual force is unnecessary to an action in false imprisonment. (Winans
v. Congress Hotel Co. (1922), 227 Ill. App. 276, 282.) The Restatement of Torts
specifies ways in which an actor may bring about the confinement required as an
element of false imprisonment, including (1) actual or apparent physical barriers;
(2) overpowering physical force, or by submission to physical force; (3) threats of
physical force; (4) other duress; and (5) asserted legal authority. Restatement
(Second) of Torts secs. 38 through 41 (1965).
It is essential, however, that the confinement be against the plaintiff's will, and if a
person voluntarily consents to the confinement there can be no false imprisonment.
(Fort v. Smith (1980), 85 Ill. App.3d 479, 481, 407 N.E.2d 117.) "Moral pressure, as
where the plaintiff remains with the defendant to clear himself of suspicion of theft *
* * is not enough; nor, as in the case of assault, are threats for the future * * *. Any
remedy for such wrongs must lie with the more modern tort of the intentional
infliction of mental distress." Prosser, Torts sec. 11, at 45 (4th ed. 1971).
Plaintiff principally relies on the court's decision in Marcus v. Liebman (1978), 59 Ill.
App.3d 337, 375 N.E.2d 486, for support of her position that summary judgment

should not have been granted in the instant case. In Marcus v. Liebman, the court
extensively examined the concept that threats of a future action are not enough to
constitute confinement. (59 Ill. App.3d 337, 341.) There, the defendant psychiatrist
threatened to have plaintiff committed to the Elgin State Hospital, and the Marcus
court found that this was a present threat, constituting false imprisonment, as
opposed to a threat of future action. The court in Marcus concluded that the lower
court had incorrectly directed a verdict for the defendant, and reversed and
remanded the case for trial on the question of imprisonment. The court noted that
plaintiff was already voluntarily committed to the psychiatric wing of a private
hospital when the defendant made the threat to commit her to a state mental
hospital and reasoned, "[A]t the time the alleged threat was made plaintiff was
already confined. It was certainly reasonable for the plaintiff to believe that before
her release [from the private hospital] commitment procedures could have been
concluded." 59 Ill. App.3d 337, 341.
7 Our analysis of the Marcus decision, as well as the other cases cited by plaintiff,
does not support plaintiff's position. All of these cases are easily distinguishable
from the present case, as in each, either physical restraint or present threats of
such were present.
In the case at bar, we are confronted with plaintiff's testimony, given under oath,
that she voluntarily accompanied James Cesario to the baking room; that she stayed
in the room in order to protect her reputation; that she was never threatened with
the loss of her job; that she was never in fear of her safety; and that at no time was
she prevented from exiting the baking room. Her affidavit, in which she averred that
she left the baking room after she began to shake and when she felt that she was
becoming ill, does not place into issue material facts which she had previously
removed from contention. (Fountaine v. Hadlock (1971), 132 Ill. App.2d 343, 347,
270 N.E.2d 222.) In her discovery deposition, given under oath, she stated that she
"got up and left" when Ralph Bell asked her how long the cash register "shorting"
had been going on.
In the tort of false imprisonment, it is not enough for the plaintiff to have
felt "compelled" to remain in the baking room in order to protect her
reputation (see Prosser, Torts sec. 11 (4th ed. 1971)), for the evidence
must establish a restraint against the plaintiff's will, as where she yields
to force, to the threat of force or the assertion of authority. (See
Restatement (Second) of Torts secs. 38 through 41 (1965).) In the present case, our
search of the record reveals no evidence that plaintiff yielded to constraint of a
threat, express or implied, or to physical force of any kind. Also, absent evidence
that plaintiff accompanied Cesario against her will, we cannot say that she was
imprisoned or unlawfully detained by defendant's employees. Finally, we find no
merit to plaintiff's argument that defendant's affirmative defense constituted an
admission of an unlawful restraint.

For the reasons stated above, we conclude that the trial court properly granted
defendant's motion for summary judgment, as there exists no question of material
fact in the present case.
Affirmed.
COURT OF APPEALS
STATE OF NORTH DAKOTA
1998 ND App 8
Martin Wishnatsky, Plaintiff and Appellant
v.
David W. Huey, Defendant and Appellee

Civil No. 980067CA

Appeal from the District Court for Cass County, East Central Judicial District, the Honorable
Georgia Dawson, Judge.
AFFIRMED.
Per Curiam.
Martin Wishnatsky, P.O. Box 413, Fargo, ND 58107. Pro se.
Andrew Moraghan, Assistant Attorney General, Attorney General's Office, 900 East Boulevard
Avenue, Bismarck, ND 58505-0041, for defendant and appellee.

Wishnatsky v. Huey
Civil No. 980067CA

Per Curiam.
[1] Martin Wishnatsky appealed a summary judgment dismissing his battery action against
David W. Huey, and an order denying his motion for an altered judgment. We conclude, as a
matter of law, that no battery occurred, and we affirm the judgment and the order.
[2] On January 10, 1996, Huey, an assistant attorney general, was engaged in a conversation
with attorney Peter B. Crary in Crary's office. Without knocking or announcing his entry,
Wishnatsky, who performs paralegal work for Crary, attempted to enter the office. Huey pushed
the door closed, thereby pushing Wishnatsky back into the hall. Wishnatsky reentered the office
and Huey left.

[3] Wishnatsky brought an action against Huey, seeking damages for battery. Huey moved for
summary judgment of dismissal. The trial court granted Huey's motion and a judgment of
dismissal was entered. Wishnatsky moved to alter the judgment. The trial court denied
Wishnatsky's motion.
[4] Wishnatsky appealed, contending the evidence he submitted in response to Huey's motion
for summary judgment satisfies the elements of a battery claim and the trial court erred in
granting Huey's motion. Wishnatsky also contends Huey is not entitled to prosecutorial or
statutory immunity.
[5] Summary judgment is a procedural device for the prompt and expeditious disposition of a
controversy without trial if either party is entitled to judgment as a matter of law, if no dispute
exists as to either the material facts or the inferences to be drawn from undisputed facts, or if
resolving factual disputes would not alter the result. Perry Center, Inc. v. Heitkamp, 1998 ND 78,
12, 576 N.W.2d 505. "In considering a motion for summary judgment, a court must view the
evidence in the light most favorable to the party opposing the motion, who must be given the
benefit of all favorable inferences which reasonably can be drawn from the evidence." Mougey
Farms v. Kaspari, 1998 ND 118, 12, 579 N.W.2d 583. "Disputes of fact become questions of
law if reasonable persons can draw only one conclusion from the evidence." Id. In reviewing a
summary judgment, an appellate court views the evidence in the light most favorable to the nonmoving party to determine if the trial court properly granted summary judgment as a matter of
law. Tuhy v. Schlabsz, 1998 ND 31, 5, 574 N.W.2d 823. On a defendant's motion for summary
judgment, the question for the court is "whether a fair-minded jury could return a verdict for the
plaintiff on the evidence presented. The mere existence of a scintilla of evidence in support of the
plaintiff's position will be insufficient; there must be evidence on which the jury could
reasonably find for the plaintiff." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986).
[6] "In its original conception [battery] meant the infliction of physical injury." VIII Sir William
Holdsworth, A History of English Law 422 (2d Impression 1973). By the Eighteenth Century,
the requirement of an actual physical injury had been eliminated:
At Nisi Prius, upon evidence in trespass for assault and battery, Holt, C. J. declared,
1. That the least touching of another in anger is a battery. 2. If two or more meet in
a narrow passage, and without any violence or design of harm, the one touches the
other gently, it is no battery. 3. If any of them use violence against the other, to
force his way in a rude inordinate manner, it is a battery; or any struggle about the
passage, to that degree as may do hurt, is a battery. Vid.Bro.Tresp. 236. 7 E. 4, 26.
22 Ass. 60. 3 H. 4, 9.

Cole v. Turner, Pasch. 3 Ann., 6 Mod. 149, 90 Eng.Rep. 958 (1704). Blackstone explained:

The least touching of another's person willfully, or in anger, is a battery; for the law
cannot draw the line between different degrees of violence, and therefore totally
prohibits the first and lowest stage of it: every man's person being sacred, and no
other having a right to meddle with it, in any the slightest manner.

3 William Blackstone, Commentaries *120. On the other hand, "in a crowded world, a certain
amount of personal contact is inevitable, and must be accepted." W. Page Keeton et al., Prosser
and Keeton on the Law of Torts 9, at 42 (5th ed. 1984).
[7] The American Law Institute has balanced the interest in unwanted contacts and the
inevitable contacts in a crowded world in Restatement (Second) of Torts 18, 19 (1965):
18. Battery: Offensive Contact
(1) An actor is subject to liability to another for battery if
(a) he acts intending to cause a harmful or offensive contact with the person of the
other or a third person, or an imminent apprehension of such a contact, and
(b) an offensive contact with the person of the other directly or indirectly results.
(2) An act which is not done with the intention stated in Subsection (1,a) does not
make the actor liable to the other for a mere offensive contact with the other's
person although the act involves an unreasonable risk of inflicting it and, therefore,
would be negligent or reckless if the risk threatened bodily harm.
....
19. What Constitutes Offensive Contact
A bodily contact is offensive if it offends a reasonable sense of personal
dignity.

Comment c to 18 notes that the contact need not be "directly caused by some act of the actor"
and also notes that "the essence of the plaintiff's grievance consists in the offense to the dignity
involved in the unpermitted and intentional invasion of the inviolability of his person and not in
any physical harm done to his body." Comment a to 19 explains what kind of conduct offends a
reasonable sense of personal dignity:
In order that a contact be offensive to a reasonable sense of personal
dignity, it must be one which would offend the ordinary person and as
such one not unduly sensitive as to his personal dignity. It must,
therefore, be a contact which is unwarranted by the social usages
prevalent at the time and place at which it is inflicted.

[8] Huey moved for summary judgment of dismissal, because, among other things, "as a matter
of law, a battery did not occur on January 10, 1996." Huey supported the motion with his
affidavit stating in part:
8. That Attorney Crary and I had settled into a serious discussion about the case and
had established a good rapport when the door to his office suddenly swung open
without a knock. An unidentified individual carrying some papers then strode in
unannounced. I had not been told that anyone would be entering Attorney Crary's
office during the private meeting. . . . I subsequently learned that the individual's
name is Martin Wishnatsky.

[9] Wishnatsky responded to Huey's motion for summary judgment with an affidavit of Crary
and with his own affidavit stating in part:
1. I am a born-again Christian and cultivate holiness in my life. [A]s a result I am
very sensitive to evil spirits and am greatly disturbed by the demonic. However, in
Christ there is victory.
2. On January 9, 1996, Mr. David Huey of the North Dakota Attorney General's office,
visited the ministry where I was working at 16 Broadway in Fargo, North Dakota with
an ex parte court order.
3. The following morning I entered the office of Peter Crary, an attorney for whom I
do paralegal work, to give him certain papers that had been requested. Mr. Crary
was speaking with Mr. David Huey at the time. As I began to enter the office Mr
Huey threw his body weight against the door and forced me out into the hall. I had
not said a word to him. At the same time, he snarled: "You get out of here." This was
very shocking and frightening to me. In all the time I have been working as an aide
to Mr. Crary, I have never been physically assaulted or spoken to in a harsh and
brutal manner. My blood pressure began to rise, my heart beat accelerated and I felt
waves of fear in the pit of my stomach. My hands began to shake and my body to
tremble. Composing myself, I reentered the office, whereupon Mr. Huey began a
half-demented tirade against me and stormed out into the hall. I looked at Mr. Crary
in wonder.

[10] We certainly agree with the Supreme Court's determination that when Wishnatsky
attempted to enter the room in which Huey was conversing with Crary, "Huey apparently
reacted in a rude and abrupt manner in attempting to exclude Wishnatsky from that
conversation." Wishnatsky v. Huey, 1997 ND 35, 15, 560 N.W.2d 878. As a matter of law,
however, Huey's "rude and abrupt" conduct did not rise to the level of battery.
[11] The evidence presented to the trial court demonstrates Wishnatsky is "unduly sensitive as
to his personal dignity." Restatement (Second) of Torts 19 cmt. a (1965). Without knocking or
otherwise announcing his intentions, Wishnatsky opened the door to the office in which Huey

and Crary were having a private conversation and attempted to enter. Huey closed the door
opened by Wishnatsky, thereby stopping Wishnatsky's forward progress and pushing him back
into the hall. The bodily contact was momentary, indirect, and incidental. Viewing the evidence
in the light most favorable to Wishnatsky, and giving him the benefit of all favorable inferences
which can reasonably be drawn from the evidence, we conclude Huey's conduct in response to
Wishnatsky's intrusion into his private conversation with Crary, while "rude and abrupt," would
not "be offensive to a reasonable sense of personal dignity." In short, an "ordinary person . . . not
unduly sensitive as to his personal dignity" intruding upon a private conversation in Wishnatsky's
manner would not have been offended by Huey's response to the intrusion. We conclude that
Huey's conduct did not constitute an offensive-contact-battery, as a matter of law, and the trial
court did not err in granting Huey's motion for summary judgment dismissing Wishnatsky's
action.
[12] Because we have concluded there was no battery as a matter of law, we need not address
the immunity issues Wishnatsky has raised. We need not consider questions, the answers to
which are unnecessary to the determination of the case. See, e.g., Kaler v. Kraemer, 1998 ND 56,
10, 574 N.W.2d 588; Hospital Servs., Inc. v. Brooks, 229 N.W.2d 69, 71 (N.D. 1975).
[13] Affirmed.
[14]

Gordon O. Hoberg, C.J.

William F. Hodny, S.J.
Debbie G. Kleven, D.J.

WOMACK VS. ELDRIDGE

I'ANSON, Chief Justice.

Plaintiff, Danny Lee Womack, instituted this action against the defendant, Rosalie
Eldridge, to recover compensatory and punitive damages for mental shock and distress
allegedly caused by the defendant's willful, wanton, malicious, fraudulent and deceitful
acts and conduct toward him. The question of punitive damages was stricken by the trial
court and the jury returned a verdict for the plaintiff in the amount of $45,000. The trial
court set aside the verdict non obstante veredicto on the ground that there could be no
recovery for emotional distress in the absence of "physical damage or other bodily
harm." We granted plaintiff a writ of error. Defendant did not assign cross-error, although
the record shows she excepted to many rulings in the court below and several of them
are relied upon in her brief and argument before us.
Plaintiff assigned numerous errors, but the controlling question is whether one
who by extreme and outrageous conduct intentionally or recklessly causes
severe emotional distress to another is subject to liability for such emotional
distress absent any bodily injury.

The evidence shows that defendant had been engaged in the business of investigating
cases for attorneys for many years. She was employed by Richard E. Seifert and his
attorney to obtain a photograph of the plaintiff to be used as evidence in the trial of
Seifert, who was charged with sexually molesting two young boys. On May 27, 1970,
about 8 a. m., defendant went to plaintiff's home and upon gaining admittance told him
that she was a Mrs. Jackson from the newspaper and that she was writing an article on
Skateland. Defendant asked plaintiff, who was a coach at Skateland, if she could take a
picture of him for publication with the article, and he readily consented.
Shortly thereafter defendant delivered the photograph to Seifert's counsel while he was
representing Seifert at his preliminary hearing. Seifert's counsel showed plaintiff's
photograph to the two young boys and asked if he was the one who molested them.
When they replied that he was not, counsel withdrew the photograph and put it in his
briefcase. However, the Commonwealth's Attorney then asked to see the photograph
and requested additional information about the person shown in it. Defendant was then
called to the stand and she supplied the plaintiff's name and address. Plaintiff's
photograph in no way resembled Seifert, and the only excuse given by defendant for
taking plaintiff's picture was that he was at Skateland when Seifert was arrested.
However, the offenses alleged against Seifert did not occur at Skateland.
The Commonwealth's Attorney then directed a detective to go to plaintiff's home and
bring him to court. The detective told plaintiff that his photograph had been presented in
court; that the Commonwealth's Attorney wanted him to appear at the proceedings; and
that he could either appear voluntarily then or he would be summoned. Plaintiff agreed
to go voluntarily. When called as a witness, plaintiff testified as to the circumstances
under
[ 210 S.E.2d 147 ]

which defendant had obtained his photograph. He also said that he had not molested
any children and that he knew nothing about the charges against Seifert.
A police officer questioned plaintiff several times thereafter. Plaintiff was also summoned
to appear as a witness before the grand jury but he was not called. However, he was
summoned to appear several times at Seifert's trial in the circuit court because of
continuances of the cases.
Plaintiff testified that he suffered great shock, distress and nervousness because of
defendant's fraud and deceit and her wanton, willful and malicious conduct in obtaining
his photograph and turning it over to Seifert's attorney to be used in court. He suffered
great anxiety as to what people would think of him and feared that he would be accused
of molesting the boys. He had been unable to sleep while the matter was being
investigated. While testifying in the instant case he became emotional and incoherent.
Plaintiff's wife also testified that her husband experienced great shock and mental
depression from the involvement.
The precise issue presented on this appeal has not been decided by this court.
In the recent case of Hughes v. Moore, 214 Va. 27, 31, 197 S.E.2d 214, 219 (1973),
where we also clarified Bowles v. May, 159 Va. 419, 437-438, 166 S.E. 550, 557 (1932),
we held that when conduct is merely negligent, not willful, wanton or vindictive,
and physical impact is lacking, there can be no recovery for emotional
disturbance alone. However, where emotional disturbance is accompanied by

physical injury there may be a recovery for negligent conduct, notwithstanding

the lack of physical impact, provided the injured party proves by clear and
convincing evidence a causal connection between the negligent act, the
emotional disturbance and the physical injury.

We have also said that a recovery is permitted for

mental distress and physical injuries unaccompanied
by actual physical contact where the injuries were
caused by a willful, intentional tort. Moore v. Jefferson Hospital,
Inc., 208 Va. 438, 441, 158 S.E.2d 124, 127 (1967).
The case of Awtrey v. Norfolk & W. Ry. Co., 121 Va. 284, 93 S.E. 570 (1917), relied
upon by the defendant, is distinguishable on the facts from the present case. There,
liability was based on a negligent wrongful act; here, liability is based on willful, wanton,
fraudulent and deceitful conduct.
Courts from other jurisdictions are not in accord on whether there can be a recovery for
emotional distress unaccompanied by physical injury. However, most of the courts
which have been presented with the question in recent years have held that there may
be a recovery against one who by his extreme and outrageous conduct intentionally or
recklessly causes another severe emotional distress. Annot., 64 A.L.R.2d 100, 8 at
120, and the many cases there cited.
The Restatement (Second) of Torts, 46 at 71, provides:
"(1) One who by extreme and outrageous conduct intentionally or recklessly causes
severe emotional distress to another is subject to liability for such emotional distress,
and if bodily harm to the other results from it, for such bodily harm."
In comment (i) to the Restatement it is expressly stated that this rule also covers a
situation where the actor knows that distress is certain, or substantially certain, to result
from his conduct.
A great majority of cases allowing recovery for such a cause of action do so when the
act was intentional and the wrongdoer desired the emotional distress or knew or should
have known that it would likely result. Aetna Life Insurance Co. v. Burton,
1

[ 210 S.E.2d 148 ]

104 Ind.App. 576, 580, 12 N.E.2d 360, 362 (1938); Kirksey v. Jernigan, 45 So.2d 188,
189 (Fla.1950); Boyle v. Chandler, Del.Super., 3 W.W.Harr 323, 33 Del. 323, 329, 138 A.
273, 276 (1927); Samms v. Eccles, 11 Utah.2d 289, 293, 358 P.2d 344, 346-347 (1961);
Prosser on Torts, "Infliction of Mental Distress," 12 at 60 (4th ed. 1971).
In Samms, the Supreme Court of Utah aptly stated:
". . . [T]he best considered view recognizes an action for severe emotional distress,
though not accompanied by bodily impact or physical injury, where the defendant
intentionally engaged in some conduct toward the plaintiff, (a) with the purpose of
inflicting emotional distress, or, (b) where any reasonable person would have known
that such would result; and his actions are of such a nature as to be considered
outrageous and intolerable in that they offend against the generally accepted standards
of decency and morality." (Footnote omitted; emphasis added.) 11 Utah 2d at 293, 358
P.2d at 346-347.

We adopt the view that a cause of action will lie for emotional distress,
unaccompanied by physical injury, provided four elements are shown: One, the
wrongdoer's conduct was intentional or reckless. This element is satisfied where
the wrongdoer had the specific purpose of inflicting emotional distress or where he
intended his specific conduct and knew or should have known that emotional distress
would likely result. Two, the conduct was outrageous and intolerable in that it
offends against the generally accepted standards of decency and morality. This
requirement is aimed at limiting frivolous suits and avoiding litigation in situations where
only bad manners and mere hurt feelings are involved. Three, there was a causal
connection between the wrongdoer's conduct and the emotional distress. Four,
the emotional distress was severe.
"It is for the court to determine, in the first instance, whether the defendant's conduct
may reasonably be regarded as so extreme and outrageous as to permit recovery, or
whether it is necessarily so. Where reasonable men may differ, it is for the jury, subject
to the control of the court, to determine whether, in the particular case, the conduct has
been sufficiently extreme and outrageous to result in liability." Restatement (Second) of
Torts, supra, at 77.
In the case at bar, reasonable men may disagree as to whether defendant's conduct
was extreme and outrageous and whether plaintiff's emotional distress was severe.
Thus, the questions presented were for a jury to determine. A jury could conclude from
the evidence presented that defendant willfully, recklessly, intentionally and deceitfully
obtained plaintiff's photograph for the purpose of permitting her employers to use it as a
defense in a criminal case without considering the effect it would have on the plaintiff.
There is nothing in the evidence that even suggests that plaintiff may have been
involved in the child molesting cases. The record shows that the only possible excuse
for involving the plaintiff was that Seifert was arrested at the place where plaintiff was
employed. A reasonable person would or should have recognized the likelihood of the
serious mental distress that would be caused in involving an innocent person in child
molesting cases. If the two boys had hesitated in answering that the man in the
photograph was not the one who had molested them, it is evident that the finger of
suspicion would have been pointed at the plaintiff.
Defendant contended in her brief, and in oral argument before us, that the trial court
erred in granting instruction 1-A in that it was contradictory and misled the jury; that the
amount of damages fixed by the jury was excessive; and that the action of the
Commonwealth's Attorney in causing plaintiff's name to be revealed was an intervening
cause which absolved her of any liability.
[ 210 S.E.2d 149 ]

We will not consider those contentions because defendant did not assign cross-error.
Beasley v. Barnes, 201 Va. 593, 598, 113 S.E.2d 62, 65 (1960); Blue Ridge Poultry and
Egg Co., Inc. v. Clark, 211 Va. 139, 141, 176 S.E.2d 323, 325 (1970); Rule 5:7, Rules of
Court.
For the reasons stated, the judgment of the court below is reversed, the jury verdict
reinstated, and final judgment hereby entered for the plaintiff.
Judgment reversed, jury verdict reinstated, and final judgment.
SUPREME COURT OF THE UNITED STATES

PHILIP MORRIS USA v. WILLIAMS, personal representative of ESTATE OF WILLIAMS,

DECEASED
certiorari to the supreme court of oregon
No. 051256.Argued October 31, 2006Decided February 20, 2007

In this state negligence and deceit lawsuit, a jury found that Jesse Williams death was caused by
smoking and that petitioner Philip Morris, which manufactured the cigarettes he favored,
knowingly and falsely led him to believe that smoking was safe. In respect to deceit, it awarded
$821,000 in compensatory damages and $79.5 million in punitive damages to respondent, the
personal representative of Williams estate. The trial court reduced the latter award, but it was
restored by the Oregon Court of Appeals. The State Supreme Court rejected Philip Morris
arguments that the trial court should have instructed the jury that it could not punish Philip
Morris for injury to persons not before the court, and that the roughly 100-to-1 ratio the $79.5
million award bore to the compensatory damages amount indicated a grossly excessive
punitive award.
Held:
1. A punitive damages award based in part on a jurys desire to punish a defendant for
harming nonparties amounts to a taking of property from the defendant without due
process. Pp. 410.
(a) While [p]unitive damages may properly be imposed to further a States legitimate
interests in punishing unlawful conduct and deterring its repetition, BMW of North America,
Inc. v. Gore, 517 U. S. 559 , unless a State insists upon proper standards to cabin the jurys
discretionary authority, its punitive damages system may deprive a defendant of fair notice
of the severity of the penalty that a State may impose, id., at 574; may threaten arbitrary
punishments, State Farm Mut. Automobile Ins. Co. v. Campbell, 538 U. S. 408 ; and, where the
amounts are sufficiently large, may impose one States (or one jurys) policy choice upon
neighboring States with different public policies, BMW, supra, at 571572. Thus, the
Constitution imposes limits on both the procedures for awarding punitive damages and amounts
forbidden as grossly excessive. See Honda Motor Co. v. Oberg, 512 U. S. 415 . The
Constitutions procedural limitations are considered here. Pp. 45.
(b) The Due Process Clause forbids a State to use a punitive damages award to punish
a defendant for injury inflicted on strangers to the litigation. For one thing, a defendant
threatened with punishment for such injury has no opportunity to defend against the charge. See

Lindsey v. Normet, 405 U. S. 56 . For another, permitting such punishment would add a near
standardless dimension to the punitive damages equation and magnify the fundamental due
process concerns of this Courts pertinent casesarbitrariness, uncertainty, and lack of notice.
Finally, the Court finds no authority to support using punitive damages awards to punish a
defendant for harming others. BMW, supra, at 568, n.11, distinguished. Respondent argues that
showing harm to others is relevant to a different part of the punitive damages constitutional
equation, namely, reprehensibility. While evidence of actual harm to nonparties can help to
show that the conduct that harmed the plaintiff also posed a substantial risk to the general
public, and so was particularly reprehensible, a jury may not go further and use a punitive
damages verdict to punish a defendant directly for harms to those nonparties. Given the
risks of unfairness, it is constitutionally important for a court to provide assurance that a jury is
asking the right question; and given the risks of arbitrariness, inadequate notice, and imposing
one States policies on other States, it is particularly important that States avoid procedure that
unnecessarily deprives juries of proper legal guidance. Pp. 58.
(c) The Oregon Supreme Courts opinion focused on more than reprehensibility. In rejecting
Philip Morris claim that the Constitution prohibits using punitive damages to punish a defendant
for harm to nonparties, it made three statements. The firstthat this Court held in State Farm
only that a jury could not base an award on dissimilar acts of a defendantwas correct, but this
Court now explicitly holds that a jury may not punish for harm to others. This Court disagrees
with the second statementthat if a jury cannot punish for the conduct, there is no reason to
consider itsince the Due Process Clause prohibits a States inflicting punishment for harm to
nonparties, but permits a jury to consider such harm in determining reprehensibility. The third
statementthat it is unclear how a jury could consider harm to nonparties and then withhold that
consideration from the punishment calculusraises the practical problem of how to know
whether a jury punished the defendant for causing injury to others rather than just took such
injury into account under the rubric of reprehensibility. The answer is that state courts cannot
authorize procedures that create an unreasonable and unnecessary risk of any such confusion
occurring. Although States have some flexibility in determining what kind of procedures to
implement to protect against that risk, federal constitutional law obligates them to provide some
form of protection where the risk of misunderstanding is a significant one. Pp. 810.
2. Because the Oregon Supreme Courts application of the correct standard may lead to a new
trial, or a change in the level of the punitive damages award, this Court will not consider the
question whether the award is constitutionally grossly excessive. P. 10.
340 Ore. 35, 127 P. 3d 1165, vacated and remanded.
Breyer, J., delivered the opinion of the Court, in which Roberts, C. J., and Kennedy, Souter,
and Alito, JJ., joined. Stevens, J., and Thomas, J., filed dissenting opinions. Ginsburg, J., filed a
dissenting opinion, in which Scalia and Thomas, JJ., joined.

Syllabus
NOTE:Where it is feasible, a syllabus (headnote) will be released, as is being done in
connection with this case, at the time the opinion is issued.The syllabus constitutes no part of the
opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of
the reader.See United States v. Detroit Timber & Lumber Co., 200 U. S. 321 .
SUPREME COURT OF THE UNITED STATES

EXXON SHIPPING CO. et al. v. BAKER et al.

certiorari to the united states court of appeals for the ninth circuit
No. 07219.Argued February 27, 2008Decided June 25, 2008

In 1989, petitioners (collectively, Exxon) supertanker grounded on a reef off Alaska, spilling
millions of gallons of crude oil into Prince William Sound. The accident occurred after the
tankers captain, Joseph Hazelwoodwho had a history of alcohol abuse and whose blood still
had a high alcohol level 11 hours after the spillinexplicably exited the bridge, leaving a tricky
course correction to unlicensed subordinates. Exxon spent some $2.1 billion in cleanup efforts,
pleaded guilty to criminal violations occasioning fines, settled a civil action by the United States
and Alaska for at least $900 million, and paid another $303 million in voluntary payments to
private parties. Other civil cases were consolidated into this one, brought against Exxon,
Hazelwood, and others to recover economic losses suffered by respondents (hereinafter Baker),
who depend on Prince William Sound for their livelihoods. At Phase I of the trial, the jury found
Exxon and Hazelwood reckless (and thus potentially liable for punitive damages) under
instructions providing that a corporation is responsible for the reckless acts of employees acting
in a managerial capacity in the scope of their employment. In Phase II, the jury awarded $287
million in compensatory damages to some of the plaintiffs; others had settled their compensatory
claims for $22.6 million. In Phase III, the jury awarded $5,000 in punitive damages against
Hazelwood and $5 billion against Exxon. The Ninth Circuit upheld the Phase I jury instruction
on corporate liability and ultimately remitted the punitive damages award against Exxon to $2.5
billion.
Held:
1. Because the Court is equally divided on whether maritime law allows corporate liability for
punitive damages based on the acts of managerial agents, it leaves the Ninth Circuits opinion
undisturbed in this respect. Of course, this disposition is not precedential on the derivative
liability question. See, e.g., Neil v. Biggers, 409 U. S. 188 . Pp. 710.

2. The Clean Water Acts water pollution penalties, 33 U. S. C. 1321, do not preempt
punitive-damages awards in maritime spill cases. Section 1321(b) protects navigable waters ,
adjoining shorelines, [and] natural resources, subject to a saving clause reserving
obligations under any law for damages to any privately owned property resulting from
[an oil] discharge, 1321(o). Exxons admission that the CWA does not displace compensatory
remedies for the consequences of water pollution, even those for economic harms, leaves the
company with the untenable claim that the CWA somehow preempts punitive damages, but not
compensatory damages, for economic loss. Nothing in the statute points to that result, and the
Court has rejected similar attempts to sever remedies from their causes of action, see Silkwood v.
Kerr-McGee Corp., 464 U. S. 238 . There is no clear indication of congressional intent to occupy
the entire field of pollution remedies, nor is it likely that punitive damages for private harms will
have any frustrating effect on the CWAs remedial scheme. Pp. 1015.
3. The punitive damages award against Exxon was excessive as a matter of maritime common
law. In the circumstances of this case, the award should be limited to an amount equal to
compensatory damages. Pp. 1542.
(a) Although legal codes from ancient times through the Middle Ages called for multiple
damages for certain especially harmful acts, modern Anglo-American punitive damages have
their roots in 18th-century English law and became widely accepted in American courts by the
mid-19th century. See, e.g., Day v. Woodworth, 13 How. 363, 371. Pp. 1617.
(b) The prevailing American rule limits punitive damages to cases of enormity, Day v.
Woodworth, 13 How. 363, 371, in which a defendants conduct is outrageous, owing to gross
negligence, willful, wanton, and reckless indifference for others rights, or even more deplorable
behavior. The consensus today is that punitive damages are aimed at retribution and deterring
harmful conduct. Pp. 1721.
(c) State regulation of punitive damages varies. A few States award them rarely, or not at all,
and others permit them only when authorized by statute. Many States have imposed statutory
limits on punitive awards, in the form of absolute monetary caps, a maximum ratio of punitive to
compensatory damages, or, frequently, some combination of the two. Pp. 2123.
(d) American punitive damages have come under criticism in recent decades, but the most
recent studies tend to undercut much of it. Although some studies show the dollar amounts of
awards growing over time, even in real terms, most accounts show that the median ratio of
punitive to compensatory awards remains less than 1:1. Nor do the data show a marked increase
in the percentage of cases with punitive awards. The real problem is the stark unpredictability of
punitive awards. Courts are concerned with fairness as consistency, and the available data
suggest that the spread between high and low individual awards is unacceptable. The spread in
state civil trials is great, and the outlier cases subject defendants to punitive damages that dwarf

the corresponding compensatories. The distribution of judge-assessed awards is narrower, but

still remarkable. These ranges might be acceptable if they resulted from efforts to reach a
generally accepted optimal level of penalty and deterrence in cases involving a wide range of
circumstances, but anecdotal evidence suggests that is not the case, see, e.g., Gore, supra, at 565,
n. 8. Pp. 2427.
(e) This Courts response to outlier punitive damages awards has thus far been confined by
claims that state-court awards violated due process. See, e.g., State Farm Mut. Automobile Ins.
Co. v. Campbell, 538 U. S. 408 . In contrast, todays enquiry arises under federal maritime
jurisdiction and requires review of a jury award at the level of judge-made federal common law
that precedes and should obviate any application of the constitutional standard. In this context,
the unpredictability of high punitive awards is in tension with their punitive function because of
the implication of unfairness that an eccentrically high punitive verdict carries. A penalty should
be reasonably predictable in its severity, so that even Holmess bad man can look ahead with
some ability to know what the stakes are in choosing one course of action or another. And a
penalty scheme ought to threaten defendants with a fair probability of suffering in like degree for
like damage. Cf. Koon v. United States, 518 U. S. 81 . Pp. 2829.
(f) The Court considers three approaches, one verbal and two quantitative, to arrive at a
standard for assessing maritime punitive damages. Pp. 2942.
(i) The Court is skeptical that verbal formulations are the best insurance against
unpredictable outlier punitive awards, in light of its experience with attempts to produce
consistency in the analogous business of criminal sentencing. Pp. 2932.
(ii) Thus, the Court looks to quantified limits. The option of setting a hard-dollar punitive
cap, however, is rejected because there is no standard tort or contract injury, making it difficult
to settle upon a particular dollar figure as appropriate across the board; and because a judicially
selected dollar cap would carry the serious drawback that the issue might not return to the docket
before there was a need to revisit the figure selected. Pp. 3239.
(iii) The more promising alternative is to peg punitive awards to compensatory damages
using a ratio or maximum multiple. This is the model in many States and in analogous federal
statutes allowing multiple damages. The question is what ratio is most appropriate. An acceptable
standard can be found in the studies showing the median ratio of punitive to compensatory
awards. Those studies reflect the judgments of juries and judges in thousands of cases as to what
punitive awards were appropriate in circumstances reflecting the most down to the least
blameworthy conduct, from malice and avarice to recklessness to gross negligence. The data in
question put the median ratio for the entire gamut at less than 1:1, meaning that the
compensatory award exceeds the punitive award in most cases. In a well-functioning system,
awards at or below the median would roughly express jurors sense of reasonable penalties in

cases like this one that have no earmarks of exceptional blameworthiness. Accordingly, the Court
finds that a 1:1 ratio is a fair upper limit in such maritime cases. Pp. 3942.
(iv) Applying this standard to the present case, the Court takes for granted the District
Courts calculation of the total relevant compensatory damages at $507.5 million. A punitive-tocompensatory ratio of 1:1 thus yields maximum punitive damages in that amount. P. 42.
472 F. 3d 600 and 490 F. 3d 1066, vacated and remanded.
Souter, J., delivered the opinion of the Court, in which Roberts, C. J., and Scalia, Kennedy,
and Thomas, JJ., joined, and in which Stevens, Ginsburg, and Breyer, JJ., joined, as to Parts I, II,
and III. Scalia, J., filed a concurring opinion, in which Thomas, J., joined. Stevens, J., Ginsburg,
J., and Breyer, J., filed opinions concurring in part and dissenting in part. Alito, J., took no part in
the consideration or decision of the case.
G.R. No. L-24803 May 26, 1977
PEDRO ELCANO and PATRICIA ELCANO, in their capacity as Ascendants of
Agapito Elcano, deceased, plaintiffs-appellants,
vs.
REGINALD HILL, minor, and MARVIN HILL, as father and Natural Guardian of said
minor, defendants-appellees.
Cruz & Avecilla for appellants.
Marvin R. Hill & Associates for appellees.

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

1. The present action is not only against but a violation of section 1, Rule 107, which is
now Rule III, of the Revised Rules of Court;
2. The action is barred by a prior judgment which is now final and or in res-adjudicata;
3. The complaint had no cause of action against defendant Marvin Hill, because he was
relieved as guardian of the other defendant through emancipation by marriage.
(P. 23, Record [p. 4, Record on Appeal.])

was first denied by the trial court. It was only upon motion for reconsideration of the
defendants of such denial, reiterating the above grounds that the following order was
issued:
Considering the motion for reconsideration filed by the defendants on January 14, 1965
and after thoroughly examining the arguments therein contained, the Court finds the
same to be meritorious and well-founded.
WHEREFORE, the Order of this Court on December 8, 1964 is hereby reconsidered by
ordering the dismissal of the above entitled case.
SO ORDERED.
Quezon City, Philippines, January 29, 1965. (p. 40, Record [p. 21, Record on Appeal.)

Hence, this appeal where plaintiffs-appellants, the spouses Elcano, are presenting for
Our resolution the following assignment of errors:
THE LOWER COURT ERRED IN DISMISSING THE CASE BY UPHOLDING THE
CLAIM OF DEFENDANTS THAT I
THE PRESENT ACTION IS NOT ONLY AGAINST BUT ALSO A VIOLATION OF
SECTION 1, RULE 107, NOW RULE 111, OF THE REVISED RULES OF COURT, AND
THAT SECTION 3(c) OF RULE 111, RULES OF COURT IS APPLICABLE;
II
THE ACTION IS BARRED BY A PRIOR JUDGMENT WHICH IS NOW FINAL OR RESADJUDICTA;
III
THE PRINCIPLES OF QUASI-DELICTS, ARTICLES 2176 TO 2194 OF THE CIVIL
CODE, ARE INAPPLICABLE IN THE INSTANT CASE; and

IV
THAT THE COMPLAINT STATES NO CAUSE OF ACTION AGAINST DEFENDANT
MARVIN HILL BECAUSE HE WAS RELIEVED AS GUARDIAN OF THE OTHER
DEFENDANT THROUGH EMANCIPATION BY MARRIAGE. (page 4, Record.)

It appears that for the killing of the son, Agapito, of plaintiffs-appellants, defendantappellee Reginald Hill was prosecuted criminally in Criminal Case No. 5102 of the Court
of First Instance of Quezon City. After due trial, he was acquitted on the ground that his
act was not criminal because of "lack of intent to kill, coupled with mistake."
Parenthetically, none of the parties has favored Us with a copy of the decision of
acquittal, presumably because appellants do not dispute that such indeed was the basis
stated in the court's decision. And so, when appellants filed their complaint against
appellees Reginald and his father, Atty. Marvin Hill, on account of the death of their son,
the appellees filed the motion to dismiss above-referred to.
As We view the foregoing background of this case, the two decisive issues presented
for Our resolution are:
1. Is the present civil action for damages barred by the acquittal of Reginald in the
criminal case wherein the action for civil liability, was not reversed?
2. May Article 2180 (2nd and last paragraphs) of the Civil Code he applied against Atty.
Hill, notwithstanding the undisputed fact that at the time of the occurrence complained
of. Reginald, though a minor, living with and getting subsistenee from his father, was
already legally married?
The first issue presents no more problem than the need for a reiteration and further
clarification of the dual character, criminal and civil, of fault or negligence as a source of
obligation which was firmly established in this jurisdiction in Barredo vs. Garcia, 73 Phil.
607. In that case, this Court postulated, on the basis of a scholarly dissertation by
Justice Bocobo on the nature of culpa aquiliana in relation to culpa criminal or delito and
mere culpa or fault, with pertinent citation of decisions of the Supreme Court of Spain,
the works of recognized civilians, and earlier jurisprudence of our own, that the same
given act can result in civil liability not only under the Penal Code but also under the
Civil Code. Thus, the opinion holds:
The, above case is pertinent because it shows that the same act machinist. come under
both the Penal Code and the Civil Code. In that case, the action of the agent killeth
unjustified and fraudulent and therefore could have been the subject of a criminal action.
And yet, it was held to be also a proper subject of a civil action under article 1902 of the
Civil Code. It is also to be noted that it was the employer and not the employee who was
being sued. (pp. 615-616, 73 Phil.). 1

It will be noticed that the defendant in the above case could have been prosecuted in a
criminal case because his negligence causing the death of the child was punishable by
the Penal Code. Here is therefore a clear instance of the same act of negligence being a
proper subject matter either of a criminal action with its consequent civil liability arising
from a crime or of an entirely separate and independent civil action for fault or negligence
under article 1902 of the Civil Code. Thus, in this jurisdiction, the separate individuality of
a cuasi-delito or culpa aquiliana, under the Civil Code has been fully and clearly
recognized, even with regard to a negligent act for which the wrongdoer could have been
prosecuted and convicted in a criminal case and for which, after such a conviction, he
could have been sued for this civil liability arising from his crime. (p. 617, 73 Phil.) 2
It is most significant that in the case just cited, this Court specifically applied article 1902
of the Civil Code. It is thus that although J. V. House could have been criminally
prosecuted for reckless or simple negligence and not only punished but also made civilly
liable because of his criminal negligence, nevertheless this Court awarded damages in
an independent civil action for fault or negligence under article 1902 of the Civil Code. (p.
618, 73 Phil.) 3
The legal provisions, authors, and cases already invoked should ordinarily be sufficient to
dispose of this case. But inasmuch as we are announcing doctrines that have been little
understood, in the past, it might not he inappropriate to indicate their foundations.
Firstly, the Revised Penal Code in articles 365 punishes not only reckless but also simple
negligence. If we were to hold that articles 1902 to 1910 of the Civil Code refer only to
fault or negligence not punished by law, accordingly to the literal import of article 1093 of
the Civil Code, the legal institution of culpa aquiliana would have very little scope and
application in actual life. Death or injury to persons and damage to property- through any
degree of negligence - even the slightest - would have to be Idemnified only through the
principle of civil liability arising from a crime. In such a state of affairs, what sphere would
remain for cuasi-delito or culpa aquiliana? We are loath to impute to the lawmaker any
intention to bring about a situation so absurd and anomalous. Nor are we, in the
interpretation of the laws, disposed to uphold the letter that killeth rather than the spirit
that giveth life. We will not use the literal meaning of the law to smother and render
almost lifeless a principle of such ancient origin and such full-grown development as
culpa aquiliana or cuasi-delito, which is conserved and made enduring in articles 1902 to
1910 of the Spanish Civil Code.
Secondary, to find the accused guilty in a criminal case, proof of guilt beyond reasonable
doubt is required, while in a civil case, preponderance of evidence is sufficient to make
the defendant pay in damages. There are numerous cases of criminal negligence which
can not be shown beyond reasonable doubt, but can be proved by a preponderance of
evidence. In such cases, the defendant can and should be made responsible in a civil
action under articles 1902 to 1910 of the Civil Code. Otherwise. there would be many
instances of unvindicated civil wrongs. "Ubi jus Idemnified remedium." (p. 620,73 Phil.)
Fourthly, because of the broad sweep of the provisions of both the Penal Code and the
Civil Code on this subject, which has given rise to the overlapping or concurrence of
spheres already discussed, and for lack of understanding of the character and efficacy of

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

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

ART. 2177. Responsibility for fault or negligence under the preceding article is entirely
separate and distinct from the civil liability arising from negligence under the Penal Code.
But the plaintiff cannot recover damages twice for the same act or omission of the
defendant.

According to the Code Commission: "The foregoing provision (Article 2177) through at
first sight startling, is not so novel or extraordinary when we consider the exact nature of
criminal and civil negligence. The former is a violation of the criminal law, while the latter
is a "culpa aquiliana" or quasi-delict, of ancient origin, having always had its own
foundation and individuality, separate from criminal negligence. Such distinction
between criminal negligence and "culpa extracontractual" or "cuasi-delito" has been
sustained by decision of the Supreme Court of Spain and maintained as clear, sound
and perfectly tenable by Maura, an outstanding Spanish jurist. Therefore, under the
proposed Article 2177, acquittal from an accusation of criminal negligence, whether on
reasonable doubt or not, shall not be a bar to a subsequent civil action, not for civil
liability arising from criminal negligence, but for damages due to a quasi-delict or 'culpa
aquiliana'. But said article forestalls a double recovery.", (Report of the Code)
Commission, p. 162.)
Although, again, this Article 2177 does seem to literally refer to only acts of negligence,
the same argument of Justice Bacobo about construction that upholds "the spirit that
giveth lift- rather than that which is literal that killeth the intent of the lawmaker should be
observed in applying the same. And considering that the preliminary chapter on human
relations of the new Civil Code definitely establishes the separability and independence
of liability in a civil action for acts criminal in character (under Articles 29 to 32) from the
civil responsibility arising from crime fixed by Article 100 of the Revised Penal Code,
and, in a sense, the Rules of Court, under Sections 2 and 3 (c), Rule 111, contemplate
also the same separability, it is "more congruent with the spirit of law, equity and justice,
and more in harmony with modern progress"- to borrow the felicitous relevant language
in Rakes vs. Atlantic. Gulf and Pacific Co., 7 Phil. 359, to hold, as We do hold, that
Article 2176, where it refers to "fault or negligencia covers not only acts "not punishable
by law" but also acts criminal in character, whether intentional and voluntary or
negligent. Consequently, a separate civil action lies against the offender in a criminal
act, whether or not he is criminally prosecuted and found guilty or acquitted, provided
that the offended party is not allowed, if he is actually charged also criminally, to recover
damages on both scores, and would be entitled in such eventuality only to the bigger
award of the two, assuming the awards made in the two cases vary. In other words, the
extinction of civil liability referred to in Par. (e) of Section 3, Rule 111, refers exclusively
to civil liability founded on Article 100 of the Revised Penal Code, whereas the civil
liability for the same act considered as a quasi-delict only and not as a crime is not
estinguished even by a declaration in the criminal case that the criminal act charged has

not happened or has not been committed by the accused. Briefly stated, We here hold,
in reiteration of Garcia, that culpa aquiliana includes voluntary and negligent acts which
may be punishable by law.4
It results, therefore, that the acquittal of Reginal Hill in the criminal case has not
extinguished his liability for quasi-delict, hence that acquittal is not a bar to the instant
action against him.
Coming now to the second issue about the effect of Reginald's emancipation by
marriage on the possible civil liability of Atty. Hill, his father, it is also Our considered
opinion that the conclusion of appellees that Atty. Hill is already free from responsibility
cannot be upheld.
While it is true that parental authority is terminated upon emancipation of the child
(Article 327, Civil Code), and under Article 397, emancipation takes place "by the
marriage of the minor (child)", it is, however, also clear that pursuant to Article 399,
emancipation by marriage of the minor is not really full or absolute. Thus
"(E)mancipation by marriage or by voluntary concession shall terminate parental
authority over the child's person. It shall enable the minor to administer his property as
though he were of age, but he cannot borrow money or alienate or encumber real
property without the consent of his father or mother, or guardian. He can sue and be
sued in court only with the assistance of his father, mother or guardian."
Now under Article 2180, "(T)he obligation imposed by article 2176 is demandable not
only for one's own acts or omissions, but also for those of persons for whom one is
responsible. The father and, in case of his death or incapacity, the mother, are
responsible. The father and, in case of his death or incapacity, the mother, are
responsible for the damages caused by the minor children who live in their company." In
the instant case, it is not controverted that Reginald, although married, was living with
his father and getting subsistence from him at the time of the occurrence in question.
Factually, therefore, Reginald was still subservient to and dependent on his father, a
situation which is not unusual.
It must be borne in mind that, according to Manresa, the reason behind the joint and
solidary liability of presuncion with their offending child under Article 2180 is that is the
obligation of the parent to supervise their minor children in order to prevent them from
causing damage to third persons. 5 On the other hand, the clear implication of Article
399, in providing that a minor emancipated by marriage may not, nevertheless, sue or
be sued without the assistance of the parents, is that such emancipation does not carry
with it freedom to enter into transactions or do any act that can give rise to judicial
litigation. (See Manresa, Id., Vol. II, pp. 766-767, 776.) And surely, killing someone else

invites judicial action. Otherwise stated, the marriage of a minor child does not relieve
the parents of the duty to see to it that the child, while still a minor, does not give
answerable for the borrowings of money and alienation or encumbering of real property
which cannot be done by their minor married child without their consent. (Art. 399;
Manresa, supra.)
Accordingly, in Our considered view, Article 2180 applies to Atty. Hill notwithstanding the
emancipation by marriage of Reginald. However, inasmuch as it is evident that Reginald
is now of age, as a matter of equity, the liability of Atty. Hill has become milling,
subsidiary to that of his son.
WHEREFORE, the order appealed from is reversed and the trial court is ordered to
proceed in accordance with the foregoing opinion. Costs against appellees.
G.R. No. 110295 October 18, 1993
COCA-COLA BOTTLERS PHILIPPINES, INC.,
vs.
THE HONORABLE COURT OF APPEALS (Fifth Division) and MS. LYDIA GERONIMO,
respondents.
Angara, Abello, Concepcion, Regala & Cruz Law Offices for petitioner.
Alejandro M. Villamil for private respondent.
DAVIDE, JR., J.:
This case concerns the proprietress of a school canteen which had to close down as a
consequence of the big drop in its sales of soft drinks triggered by the discovery of foreign
substances in certain beverages sold by it. The interesting issue posed is whether the subsequent
action for damages by the proprietress against the soft drinks manufacturer should be treated as
one for breach of implied warranty against hidden defects or merchantability, as claimed by the
manufacturer, the petitioner herein which must therefore be filed within six months from the
delivery of the thing sold pursuant to Article 1571 of the Civil Code, or one for quasi-delict, as
held by the public respondent, which can be filed within four years pursuant to Article 1146 of
the same Code.
On 7 May 1990, Lydia L. Geronimo, the herein private respondent, filed a complaint for
damages against petitioner with the Regional Trial Court (RTC) of Dagupan City. 1 The case was
docketed as Civil Case No. D-9629. She alleges in her complaint that she was the proprietress of
Kindergarten Wonderland Canteen docketed as located in Dagupan City, an enterprise engaged in

the sale of soft drinks (including Coke and Sprite) and other goods to the students of
Kindergarten Wonderland and to the public; on or about 12 August 1989, some parents of the
students complained to her that the Coke and Sprite soft drinks sold by her contained fiber-like
matter and other foreign substances or particles; he then went over her stock of softdrinks and
discovered the presence of some fiber-like substances in the contents of some unopened Coke
bottles and a plastic matter in the contents of an unopened Sprite bottle; she brought the said
bottles to the Regional Health Office of the Department of Health at San Fernando, La Union, for
examination; subsequently, she received a letter from the Department of Health informing her
that the samples she submitted "are adulterated;" as a consequence of the discovery of the foreign
substances in the beverages, her sales of soft drinks severely plummeted from the usual 10 cases
per day to as low as 2 to 3 cases per day resulting in losses of from P200.00 to P300.00 per day,
and not long after that she had to lose shop on 12 December 1989; she became jobless and
destitute; she demanded from the petitioner the payment of damages but was rebuffed by it. She
prayed for judgment ordering the petitioner to pay her P5,000.00 as actual damages, P72,000.00
as compensatory damages, P500,000.00 as moral damages, P10,000.00 as exemplary damages,
the amount equal to 30% of the damages awarded as attorney's fees, and the costs. 2
The petitioner moved to dismiss 3 the complaint on the grounds of failure to exhaust
administrative remedies and prescription. Anent the latter ground, the petitioner argued that since
the complaint is for breach of warranty under Article 1561 of the said Code. In her Comment 4
thereto, private respondent alleged that the complaint is one for damages which does not involve
an administrative action and that her cause of action is based on an injury to plaintiff's right
which can be brought within four years pursuant to Article 1146 of the Civil Code; hence, the
complaint was seasonably filed. Subsequent related pleadings were thereafter filed by the parties.
5

In its Order of 23 January 1991, 6 the trial court granted the motion to dismiss. It ruled that the
doctrine of exhaustion of administrative remedies does not apply as the existing administrative
remedy is not adequate. It also stated that the complaint is based on a contract, and not on quasidelict, as there exists pre-existing contractual relation between the parties; thus, on the basis of
Article 1571, in relation to Article 1562, the complaint should have been filed within six months
from the delivery of the thing sold.
Her motion for the reconsideration of the order having been denied by the trial court in its Order
of 17 April 1991, 7 the private respondent came to this Court via a petition for review on
certiorari which we referred to the public respondent "for proper determination and disposition. 8
The public respondent docketed the case as CA-G.R. SP No. 25391.
In a decision promulgated on 28 January 1992, 9 the public respondent annulled the questioned
orders of the RTC and directed it to conduct further proceedings in Civil Case No. D-9629. In
holding for the private respondent, it ruled that:

Petitioner's complaint being one for quasi-delict, and not for breach of warranty
as respondent contends, the applicable prescriptive period is four years.
It should be stressed that the allegations in the complaint plainly show that it is an
action or damages arising from respondent's act of "recklessly and negligently
manufacturing adulterated food items intended to be sold or public consumption"
(p. 25, rollo). It is truism in legal procedure that what determines the nature of an
action are the facts alleged in the complaint and those averred as a defense in the
defendant's answer (I Moran 126; Calo v. Roldan, 76 Phil. 445; Alger Electric,
Inc. v. CA, 135 SCRA 340).
Secondly, despite the literal wording of Article 2176 of the Civil code, the
existence of contractual relations between the parties does not absolutely preclude
an action by one against the other for quasi-delict arising from negligence in the
performance of a contract
In Singson v. Court of Appeals (23 SCRA 1117), the Supreme Court ruled:
It has been repeatedly held: that the existence of a contract
between the parties does not bar the commission of a tort by the
one against the other and the consequent recovery of damages
therefor
. . . . Thus in Air France vs. Carrascoso, . . . (it was held that)
although the relation between a passenger and a carrier is
"contractual both in origin and in nature the act that breaks the
contract may also be a tort.
Significantly, in American jurisprudence, from which Our law on Sales was taken,
the authorities are one in saying that he availability of an action or breach of
warranty does not bar an action for torts in a sale of defective goods. 10
Its motion for the reconsideration of the decision having been denied by the public respondent in
its Resolution of 14 May 1993, 11 the petitioner took his recourse under Rule 45 of the Revised
Rules of Court. It alleges in its petition that:
I.
THE HONORABLE COURT OF APPEALS COMMITTED A GRAVE AND
REVERSIBLE ERROR IN RULING THAT ARTICLE 2176, THE GENERAL
PROVISION ON QUASI-DELICTS, IS APPLICABLE IN THIS CASE WHEN
THE ALLEGATIONS OF THE COMPLAINT CLEARLY SHOW THAT

PRIVATE RESPONDENT'S CAUSE OF ACTION IS BASEDON BREACH OF

A SELLER'S IMPLIED WARRANTIES UNDER OUR LAW ON SALES.
II.
CORROLARILY, THE HONORABLE COURT OF APPEALS COMMITTED A
GRAVE AND REVERSIBLE ERROR IN OVERRULING PETITIONER'S
ARGUMENT THAT PRIVATE RESPONDENT'S CAUSE OF ACTION HAD
PRESCRIBED UNDER ARTICLE 1571 OF THE CIVIL CODE. 12
The petitioner insists that a cursory reading of the complaint will reveal that the primary legal
basis for private respondent's cause of action is not Article 2176 of the Civil Code on quasidelict for the complaint does not ascribe any tortious or wrongful conduct on its part but
Articles 1561 and 1562 thereof on breach of a seller's implied warranties under the law on sales.
It contends the existence of a contractual relation between the parties (arising from the contract
of sale) bars the application of the law on quasi-delicts and that since private respondent's cause
of action arose from the breach of implied warranties, the complaint should have been filed
within six months room delivery of the soft drinks pursuant to Article 171 of the Civil Code.
In her Comment the private respondent argues that in case of breach of the seller's implied
warranties, the vendee may, under Article 1567 of the Civil Code, elect between withdrawing
from the contract or demanding a proportionate reduction of the price, with damages in either
case. She asserts that Civil Case No. D-9629 is neither an action for rescission nor for
proportionate reduction of the price, but for damages arising from a quasi-delict and that the
public respondent was correct in ruling that the existence of a contract did not preclude the action
for quasi-delict. As to the issue of prescription, the private respondent insists that since her cause
of action is based on quasi-delict, the prescriptive period therefore is four (4) years in accordance
with Article 1144 of the Civil Code and thus the filing of the complaint was well within the said
period.
We find no merit in the petition. The public respondent's conclusion that the cause of action in
Civil Case No. D-9629 is found on quasi-delict and that, therefore, pursuant to Article 1146 of
the Civil Code, it prescribes in four (4) years is supported by the allegations in the complaint,
more particularly paragraph 12 thereof, which makes reference to the reckless and negligent
manufacture of "adulterated food items intended to be sold for public consumption."
The vendee's remedies against a vendor with respect to the warranties against hidden defects of
or encumbrances upon the thing sold are not limited to those prescribed in Article 1567 of the
Civil Code which provides:

Art. 1567. In the case of Articles 1561, 1562, 1564, 1565 and 1566, the vendee
may elect between withdrawing from the contract and demanding a proportionate
reduction of the price, with damages either
case. 13
The vendee may also ask for the annulment of the contract upon proof of error or fraud, in which
case the ordinary rule on obligations shall be applicable. 14 Under the law on obligations,
responsibility arising from fraud is demandable in all obligations and any waiver of an action for
future fraud is void. Responsibility arising from negligence is also demandable in any
obligation, but such liability may be regulated by the courts, according to the
circumstances. 15 Those guilty of fraud, negligence, or delay in the performance of their
obligations and those who in any manner contravene the tenor thereof are liable for
damages. 16
The vendor could likewise be liable for quasi-delict under Article 2176 of the Civil Code,
and an action based thereon may be brought by the vendee. While it may be true that the
pre-existing contract between the parties may, as a general rule, bar the applicability of the
law on quasi-delict, the liability may itself be deemed to arise from quasi-delict, i.e., the acts
which breaks the contract may also be a quasi-delict. Thus, in Singson vs. Bank of the
Philippine Islands, 17 this Court stated:
We have repeatedly held, however, that the existence of a contract between the
parties does not bar the commission of a tort by the one against the other and the
consequent recovery of damages therefor. 18 Indeed, this view has been, in effect,
reiterated in a comparatively recent case. Thus, in Air France vs. Carrascoso, 19
involving an airplane passenger who, despite hi first-class ticket, had been
illegally ousted from his first-class accommodation and compelled to take a seat
in the tourist compartment, was held entitled to recover damages from the aircarrier, upon the ground of tort on the latter's part, for, although the relation
between the passenger and a carrier is "contractual both in origin and nature . . .
the act that breaks the contract may also be a tort.
Otherwise put, liability for quasi-delict may still exist despite the presence of contractual
relations. 20
Under American law, the liabilities of a manufacturer or seller of injury-causing
products may be based on negligence, 21 breach of warranty, 22 tort, 23 or other
grounds such as fraud, deceit, or misrepresentation. 24 Quasi-delict, as defined in
Article 2176 of the Civil Code, (which is known in Spanish legal treaties as culpa
aquiliana, culpa extra-contractual or cuasi-delitos) 25 is homologous but not identical
to tort under the common law, 26 which includes not only negligence, but also

intentional criminal acts, such as assault and battery, false imprisonment and deceit.
27

It must be made clear that our affirmance of the decision of the public respondent should by no
means be understood as suggesting that the private respondent's claims for moral damages have
sufficient factual and legal basis.
IN VIEW OF ALL THE FOREGOING, the instant petition is hereby DENIED for lack of merit,
with costs against the petitioner.
SO ORDERED.

FIRST DIVISION

CHILD LEARNING CENTER, INC.

G.R. No. 150920

and SPOUSES EDGARDO L. LIMON

and SYLVIA S. LIMON,

Present:
Petitioners,
DAVIDE, JR., C.J. (Chairman),

- versus -

QUISUMBING,
YNARES-SANTIAGO,
CARPIO, and
AZCUNA, JJ.

TIMOTHY TAGARIO, assisted by

his parents BASILIO TAGORIO and

Promulgated:

HERMINIA TAGORIO,
Respondents.

November 25, 2005

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

DECISION
AZCUNA, J.:

This petition started with a tort case filed with the Regional
Trial Court of Makati by Timothy Tagorio and his parents, Basilio R.
Tagorio and Herminia Tagorio, docketed as Civil Case No. 911389. The complaint[1] alleged that during the school year 19901991, Timothy was a Grade IV student at Marymount School, an
academic institution operated and maintained by Child Learning
Center, Inc. (CLC). In the afternoon of March 5, 1991, between 1
and 2 p.m., Timothy entered the boys comfort room at the third
floor of the Marymount building to answer the call of nature. He,
however, found himself locked inside and unable to get out.
Timothy started to panic and so he banged and kicked the door
and yelled several times for help.

When no help arrived he

decided to open the window to call for help. In the process of

opening the window, Timothy went right through and fell down
three stories.

Timothy was hospitalized and given medical

treatment for serious multiple physical injuries.

An action under Article 2176 of the Civil Code was filed by

respondents against the CLC, the members of its Board of
Directors, namely Spouses Edgardo and Sylvia Limon, Alfonso
Cruz,

Carmelo

Narciso

and

Luningning

Salvador,

and

the

Administrative Officer of Marymount School, Ricardo Pilao. In its

defense,[2] CLC maintained that there was nothing defective
about the locking mechanism of the door and that the fall of
Timothy was not due to its fault or negligence.

CLC further

maintained that it had exercised the due care and diligence of a

good father of a family to ensure the safety, well-being and
convenience of its students.

After trial, the court a quo found in favor of respondents

and

ordered

petitioners

CLC

and

Spouses

Limon

to

pay

respondents, jointly and severally, P200,253.12 as actual and

compensatory damages, P200,000 as moral damages, P50,000 as
exemplary damages, P100,000 as attorneys fees and the costs of
the suit. The trial court disregarded the corporate fiction of CLC
and held the Spouses Limon personally liable because they were
the ones who actually managed the affairs of the CLC.

Petitioners CLC and the Spouses Limon appealed the

decision to the Court of Appeals.

On September 28, 2001, the Court of Appeals[3] affirmed the

decision in toto. Petitioners elevated the case to this Court under
Rule

45

of

the

Rules

of

Court,

after

their

motion

for

reconsideration was denied by Resolution of November 23, 2001.

[4]

Petitioners question several factual findings of the trial

court, which were affirmed by the Court of Appeals, namely:[5]

1.
That respondent was allegedly trapped inside the
boys comfort room located at the third floor of the school
building on March 5, 1991;
2.
That respondent allegedly banged and kicked the
door of said comfort room several times to attract attention and
that he allegedly yelled thereat for help which never came;

3.
That respondent was allegedly forced to open the
window of said comfort room to seek help;
4.
That the lock set installed at the boys comfort room
located in the third floor of the school building on March 5, 1991
was allegedly defective and that the same lock set was involved
in previous incidents of alleged malfunctioning;

5.
That petitioner Child Learning Center, Inc. allegedly
failed to install iron grills in the window of the boys comfort
room at the third floor of the school building;

6.
That petitioner Child Learning Center, Inc. allegedly
failed to exercise the due care of a good father of a family in the
selection and supervision of its employees;
7.
That the proximate cause of respondents accident
was allegedly not due to his own contributory negligence;

8.
That there was an alleged basis to apply the legal
principle of piercing the veil of corporate entity in resolving the
issue of alleged liability of petitioners Edgardo L. Limon and
Sylvia S. Limon;

9.
That there was alleged basis for petitioners to pay
respondent actual, moral and exemplary damages, plus
attorneys fees;

10.
That there was an alleged basis in not awarding
petitioners prayer for moral and exemplary damages, including
attorneys fees.

Generally, factual findings of the trial court, affirmed by the

Court of Appeals, are final and conclusive and may not be
reviewed on appeal. The established exceptions are: (1) when the
inference made is manifestly mistaken, absurd or impossible; (2)
when there is grave abuse of discretion; (3) when the findings are
grounded entirely on speculations, surmises or conjectures; (4)
when the judgment of the Court of Appeals is based on
misapprehension of facts; (5) when the findings of fact are
conflicting; (6) when the Court of Appeals, in making its findings,
went beyond the issues of the case and the same is contrary to

the admissions of both appellant and appellee; (7) when the

findings of fact are conclusions without citation of specific
evidence on which they are based; (8) when the Court of Appeals
manifestly overlooked certain relevant facts not disputed by the
parties and which, if properly considered, would justify a different
conclusion; and (9) when the findings of fact of the Court of
Appeals are premised on the absence of evidence and are
contradicted by the evidence on record.[6]

On the basis of the records of this case, this Court finds no

justification to reverse the factual findings and consider this case
as an exception to the general rule.

In every tort case filed under Article 2176 of the Civil Code,
plaintiff has to prove by a preponderance of evidence: (1) the
damages suffered by the plaintiff; (2) the fault or negligence of
the defendant or some other person for whose act he must
respond; and (3) the connection of cause and effect between the
fault or negligence and the damages incurred.[7]

Fault, in general, signifies a voluntary act or omission which

causes damage to the right of another giving rise to an obligation
on the part of the actor to repair such damage. Negligence is the

failure to observe for the protection of the interest of another

person that degree of care, precaution and vigilance which the
circumstances justly demand. Fault requires the execution of a
positive act which causes damage to another while negligence
consists of the omission to do acts which result in damage to
another.[8]

In this tort case, respondents contend that CLC failed to

provide precautionary measures to avoid harm and injury to its
students in two instances: (1) failure to fix a defective door knob
despite having been notified of the problem; and (2) failure to
install safety grills on the window where Timothy fell from.

The trial court found that the lock was defective on March 5,
1991:[9]

The door knob was defective. After the incident of March 5,

1991, said door knob was taken off the door of the toilet where
Timothy was in. The architect who testified during the trial
declared that although there were standard specifications for
door knobs for comfort room[s], and he designed them according
to that requirement, he did not investigate whether the door
knob specified in his plans during the construction [was] actually
put in place. This is so because he did not verify whether the
door knob he specified w[as] actually put in place at the
particular comfort room where Timothy was barred from getting
outside. (TSN, pp. 19-20, December 8, 1994).

The Court of Appeals held that there was no reason to

disturb the factual assessment:[10]

After having perused the records, We fail to see any

indication of whim or arbitrariness on the part of the trial
magistrate in his assessment of the facts of the case. That said,
We deem it not to be within Our business to recast the factual
conclusions reached by the court below.

Petitioners would make much of the point that no direct

evidence was presented to prove that the door knob was indeed
defective on the date in question.

The fact, however, that Timothy fell out through the window
shows that the door could not be opened from the inside. That
sufficiently points to the fact that something was wrong with the
door, if not the door knob, under the principle of res ipsa loquitor.
The doctrine of res ipsa loquitor applies where (1) the accident
was of such character as to warrant an inference that it would not
have happened except for the defendants negligence; (2) the
accident must have been caused by an agency or instrumentality
within the exclusive management or control of the person
charged with the negligence complained of; and (3) the accident
must not have been due to any voluntary action or contribution
on the part of the person injured.[11] Petitioners are clearly

answerable for failure to see to it that the doors of their school

toilets are at all times in working condition.

The fact that a

student had to go through the window, instead of the door, shows

that something was wrong with the door.

As to the absence of grills on the window, petitioners

contend that there was no such requirement under the Building
Code. Nevertheless, the fact is that such window, as petitioners
themselves point out, was approximately 1.5 meters from the
floor, so that it was within reach of a student who finds the
regular exit, the door, not functioning. Petitioners, with the due
diligence of a good father of the family, should have anticipated
that a student, locked in the toilet by a non-working door, would
attempt to use the window to call for help or even to get out.
Considering all the circumstances, therefore, there is sufficient
basis to sustain a finding of liability on petitioners part.

Petitioners argument that CLC exercised the due diligence of

a good father of a family in the selection and supervision of its
employees is not decisive. Due diligence in the selection and
supervision of employees is applicable where the employer is
being held responsible for the acts or omissions of others under
Article 2180 of the Civil Code.[12] In this case, CLCs liability is
under Article 2176 of the Civil Code, premised on the fact of its

own negligence in not ensuring that all its doors are properly
maintained.

Our pronouncement that Timothy climbed out of the window

because he could not get out using the door, negates petitioners
other contention that the proximate cause of the accident was
Timothys own negligence. The injuries he sustained from the fall
were the product of a natural and continuous sequence, unbroken
by any intervening cause, that originated from CLCs own
negligence.

We, however, agree with petitioners that there was no basis

to pierce CLCs separate corporate personality. To disregard the
corporate existence, the plaintiff must prove: (1) Control by the
individual

owners,

not

mere

majority

or

complete

stock

ownership, resulting in complete domination not only of finances

but of policy and business practice in respect to a transaction so
that the corporate entity as to this transaction had at the time no
separate mind, will or existence of its own; (2) such control must
have been used by the defendant to commit fraud or wrong, to
perpetuate the violation of a statutory or other positive legal duty,
or a dishonest and unjust act in contravention of the plaintiffs
legal right; and (3) the control and breach of duty must
proximately cause the injury or unjust loss complained of. The

absence of these elements prevents piercing the corporate veil.

[13] The evidence on record fails to show that these elements are
present, especially given the fact that plaintiffs complaint had
pleaded that CLC is a corporation duly organized and existing
under the laws of the Philippines.

On 9th and 10th points raised concerning the award of

damages, the resolution would rest on factual determinations by
the trial court, affirmed by the Court of Appeals, and no legal
issue warrants our intervention.

WHEREFORE, the petition is partly granted and the

Decision and Resolution of the Court of Appeals in CA-G.R. CV No.
50961 dated September 28, 2001 and November 23, 2001,
respectively, are MODIFIED in that petitioners Spouses Edgardo
and Sylvia Limon are absolved from personal liability. The
Decision and Resolution are AFFIRMED in all other respects. No
pronouncement as to costs.

SO ORDERED.