Republic of the Philippines

SUPREME COURT
Manila

EN BANC

GR No. L-47362 December 19, 1940

JOHN F. VILLARROEL, appellant-appellant,

vs.
BERNARDINO ESTRADA, turned-appellee.

D. Felipe Agoncillo in representation of the appellant-appelante.

D. Crispin Oben in representation of the defendant-appellee.

DECISION

Avanceña,J.:

On May 9, 1912, Alejandro F. Callao, mother of defendant John F. Villarroel, obtained from thespouses
Mariano Estrada and Severina a loan of P1, 000 payable after seven years (ExhibitoA). Alejandra died, leaving
as sole heir to the defendant.Spouses Mariano Estrada and Severina alsodied, leaving as sole heir to the
plaintiff Bernardino Estrada. On August 9, 1930, the defendant signeda document (Exhibito B) by which the
applicant must declare in the amount of P1, 000, with aninterest of 12 percent per year. This action relates to
the recovery of this amount.

The Court of First Instance of Laguna, which was filed in this action, condemn the defendant to paythe claimed
amount of P1, 000 with legal interest of 12 percent per year since the August 9, 1930until full pay. He appealed
the sentence.

It will be noted that the parties in the present case are, respectively, the only heirs and creditors of the original
debtor. This action is brought under the defendant's liability as the only son of the originaldebtor in favor of the
plaintiff contracted, sole heir of primitive loa creditors. It is recognized that theamount of P1, 000 to which
contracts this obligation is the same debt of the mother's parents sued theplaintiff.

Although the action to recover the original debt has prescribed and when the lawsuit was filed in thiscase, the
question raised in this appeal is primarily whether, notwithstanding such requirement, theaction taken is
appropriate. However, this action is based on the original obligation contracted by themother of the defendant,
who has already prescribed, but in which the defendant contracted theAugust 9, 1930 (Exhibito B) by
assuming the fulfillment of that obligation, as prescribed. Being theonly defendant in the original herdero debtor
eligible successor into his inheritance, that debt broughtby his mother in law, although it lost its effectiveness
by prescription, is now, however, for a moralobligation, that is consideration enough to create and make
effective and enforceable obligationvoluntarily contracted its August 9, 1930 in Exhibito B.

The rule that a new promise to pay a debt prrescrita must be made by the same person obligated orotherwise
legally authorized by it, is not applicable to the present case is not required in compliance with the mandatory
obligation original mente but which would give it voluntarily assumed this obligation .It confirms the judgment
appealed from, with costs against the appellant. IT IS SO ORDERED.

Imperial, Diaz, Laurel, and Horrilleno, MM., Concur.

 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

DECISION

November 2, 1939

G.R. No. 46274

A.O. FISHER, plaintiff-appellee,
vs.
JOHN C. ROBB, defendant-appellant.

Marcial P. Lichauco and Manuel M. Mejia for appellant.

Wolfson, Barrion and Baradi and Ignacio Ycaza for appellee.

VILLA-REAL, J.:

The defendant John C. Robb appeals to this Court from the judgment of the Court of First Instance of
Manila, the dispositive part of which reads:

Judgment is hereby rendered in favor of the plaintiff and against the defendant, who is ordered to pay to the
former the sum of P2,000, with interest at the legal rate from March 11, 1938, until paid, plus costs.

The facts established at the trial without discussion are the following:

In September, 1935, the board of directors of the Philippine Greyhound Club, Inc., told the herein defendant-
appellant John C. Robb, to make a business trip to Shanghai to study the operation of a dog racing course.
In Shanghai, the defendant-appellant stayed at the American Club where be became acquainted with the
plaintiff-appellee, A. O. Fisher, through their mutual friends. In the course of a conversation, the defendant-
appellant came to know that the plaintiff-appellee was the manager of a dog racing course. Upon knowing
the purpose of the defendant-appellant’s trip, the plaintiff-appellee showed great interest and invited him to
his establishment and for several days gave him information about the business. It seems that the plaintiff
became interested in the Philippine Greyhound Club, Inc., and asked the defendant if he could have a part
therein as a stockholder. As the defendant-appellant answered in the affirmative, the plaintiff-appellee
thereupon filled a subscription blank and, through his bank in Shanghai, sent to the Philippine Greyhound
Club, Inc., in Manila telegraphic transfer for P3,000 in payment of the first installment of his subscription.
Later on the defendant-appellant returned to Manila from Shanghai.

Some months thereafter, when the board of directors of the Philippine Greyhound Club, Inc., issued a call
for the payment of the second installment of the subscriptions, the defendant-appellant sent a radiogram to
the plaintiff-appellee did so and sent P2,000 directly to the Philippine Greyhound Club, Inc., in payment of
the said installment. Due to the manipulations of those who controlled the Philippine Greyhound Club, Inc.,
during the absence of the defendant-appellant undertook the organization of a company called The
Philippine Racing Club, which now manages the race track of the Santa Ana park. The defendant
immediately endeavored to save the investment of those who had subscribed to the Philippine Greyhound
Club, Inc., by having the Philippine Racing Club acquire the remaining assets of the Philippine Greyhound
Club, Inc. The defendant-appellant wrote a letter to the plaintiff-appellee in Shanghai explaining in detail the
critical condition of the Philippine Greyhound Club, Inc., and outlining his plans to save the properties and
assets of the plaintiff-appellee that he felt morally responsible to the stockholders who had paid their second
installment (Exh. C). In answer to said letter, the plaintiff-appellee wrote the defendant-appellant requiring
him to return the entire amount paid by him to the Philippine Greyhound Club, Inc., (exhibit E). Upon
receiving this letter, the defendant-appellant answered the plaintiff-appellee for any loss which he might
have suffered in connection with the Philippine Greyhound Club, Inc., in the same way that he could not
expect anyone to reimburse him for his own losses which were much more than those of the plaintiff-
appellee (Exh. B).

The principal question to be decided in this appeal is whether or not the trial court erred in holding that there
was sufficient consideration to justify the promise made by the defendant-appellant in his letters Exhibits B
and C.

In the fifth paragraph of the letter Exhibit B, dated March 16, 1936, addressed by the defendant-appellant to
the plaintiff-appellee, the former said: “I feel a moral responsibility for these second payments, which were
made in order to carry out my plan (not the first payments, as you have it in your letter), and Mr. Hilscher
and I will see to it that stockholders who made second payments receive these amounts back as soon as
possible, out of our own personal funds. “As it is, I have had to take my loss along with everyone else here,
and so far as I can see that is what all of us must do. The corporation is finally flat, so it is out of the question
to receive back any of your investment from that source; the only salvage will be the second payment that
you made, and that will come from Hilscher and me personally, as I say, not because of any obligation, but
simply because we have taken it on ourselves to do that. (And I wish I could find someone who would
undertake to repay a part of my own losses in the enterprise!)” And in the seventh paragraph of the letter
Exhibit C, dated February 21, 1936, addressed by the same defendant-appellant to the same plaintiff-
appellee the former said the following:

However, Mr. Fischer and I feel a personal responsibility to those few stockholders who made their second
payments, including yourself, and it is our intention to personally repay the amounts of the second payments
made by those few.

. . . And, finally, paragraph 8 of the same letter Exhibit C states: “We are to receive a certain share of the
new Philippine Racing Club for our services as promoters of that organization, and as soon as this is
received by us, we will be in a position to compensate you and the few others who made the second
payments. That, as T have said, will come from us personally, in an effort to make things easier for those
who were sportsmen enough to try to save the Greyhound organization by making second payments.

Article 1254 of the Civil Code provides as follows:

A contract exists from the moment one or more persons consent to be bound with respect to another
or others to deliver something or to render some services.

And article 1261 of the same Civil Code provides the following:

ART. 1261. There is no contract unless the following requisites exists:

1. The consent of the contracting parties;

2. A definite object which is the subject-matter of the contract;

3. A consideration for the obligation established.

In the present case, while the defendant-appellant told the plaintiff-appellee that he felt morally responsible
for the second payments which had been made to carry out his plan, and that Mr. Hilscher and he would do
everything possible so that the stockholders who had made second payments may receive the amount paid
by them from their personal funds because they voluntarily assumed the responsibility to make such
payment as soon as they receive from the Philippine racing Club certain shares for their services as
promoters of said organization, it does not appear that the plaintiff-appellee had consented to said form of
reimbursement of the P2,000 which he had directly paid to the Philippine Greyhound Club, Inc., in
satisfaction of the second installment.

The first essential requisite, therefore, required by the cited article 1261 of the Civil Code for the existence of
a contract, does not exists.

As to the third essential requisite, namely, “A consideration for the obligation established,” article 1274 of the
same Code provides:

In onerous contracts the consideration as to each of the parties is the delivery or performance or the
promise of delivery or performance of a thing or service by the other party; in remuneratory contracts the
consideration is the service or benefit for which the remuneration is given, and in contracts of pure
beneficence the consideration is the liberality of the benefactors.

And article 1275 of the same Code provides:

ART. 1275. Contracts without consideration or with an illicit consideration produce no effect
whatsoever. A consideration is illicit when it is contrary to law or morality.

Manresa, in volume 8, 4rth edition, pages 618-619 of his Commentaries on the Civil Code, has this to say:

Considering the concept of the consideration as the explanation and motive of the contract, it is
related to the latter’s object and even more to its motives with which it is often confused. It is
differentiated from them, however, in that the former is the essential reason for the contract, while
the latter are the particular reasons of a contracting party which do not affect the other party and
which do not preclude the existence of a different consideration. To clarify by an example: A thing
purchased constitutes the consideration for the purchaser and not the motives which have
influenced his mind, like its usefulness, its perfection, its relation to another, the use thereof which he
may have in mind, etc., a very important distinction, which precludes the annulment of the contract
by the sole influence of the motives, unless the efficacy of the former had been subordinated to
compliance with the latter as conditions.

The jurisprudence shows some cases wherein this important distinction is established. The consideration of
contracts, states the decision of February 24, 1904, is distinct from the motive which may prompt the parties
in executing them. The inaccuracies committed in expressing its accidental or secondary details do not imply
lack of consideration or false consideration, wherefore, they do not affect the essence and validity of the
contract. In a loan the consideration in its essence is, for the borrower the acquisition of the amount, and for
the lender the power to demand its return, whether the money be for the former or for another person and
whether it be invested as stated or otherwise.

The same distinction between the consideration and the motive is found in the decisions of November 23,
1920 and March 5, 1924.

The contract sought to be judicially enforced by the plaintiff-appellee against the defendant-appellant is
onerous in character, because it supposes the deprivation of the latter of an amount of money which impairs
his property, which is a burden, and for it to be legally valid it is necessary that it should have a
consideration consisting in the lending or or promise of a thing or service by such party. The defendant-
appellant is required to give a thing, namely, the payment of the sum of P2,000, but the plaintiff-appellee has
not given or promised anything or service to the former which may compel him to make such payment. The
promise which said defendant-appellant has made to the plaintiff-appellee to return to him P2,000 which he
had paid to the Philippine Greyhound Club, Inc., as second installment of the payment of the amount of the
shares for which he has subscribed, was prompted by a feeling of pity which said defendant-appellant had
for the plaintiff-appellee as a result of the loss which the latter had suffered because of the failure of the
enterprise. The obligation which the said defendant-appellant had contracted with the plaintiff-appellee is,
therefore, purely moral and, as such, is not demandable in law but only in conscience, over which human
judges have no jurisdiction.

As to whether a moral obligation is a sufficient consideration, read in volume 12 of the American

Jurisprudence, pages 589-590, paragraphs 96, 67, the following:

SEC. 96. Moral obligation. ? Although there is authority in support of the board proposition that a
moral obligation is sufficient consideration, such proposition is usually denied. . . . .

The case presenting the question whether a moral obligation will sustain an express executory promise may
be divided into five classes: (1) Cases in which the moral obligation arose wholly from ethical considerations,
unconnected with any legal obligations, perfect or imperfect, and without the receipt of actual pecuniary or
material benefit by the promisor prior to the subsequent promise; (2) cases in which the moral obligation
arose from a legal liability already performed or still enforceable; (3) cases in which the moral obligation
arose out of, or was connected with, a previous request or promise creating originally an enforceable legal
liability, which, however, at the time of the subsequent express promise had become discharged or barred
by operation of a positive rule of law, so that at that time there was no enforceable legal liability; (4) cases in
which the moral obligation arose from, or was connected with, a previous request or promise which,
however, never created any enforceable legal liability, because of a rule of law which rendered the original
agreement void, or at least unenforceable; and (5) cases in which the moral obligation arose out of, or was
connected with, the receipt of actual material or pecuniary benefit by the promisor, without, however, any
previous request or promise on his part, express or implied, and therefore, of course, without any original
legal liability, perfect or imperfect.

SEC. 97. Moral obligation unconnected with legal liability or legal benefit. ? Although, as
subsequently shown was formerly some doubt as to the point, it is now well established that a mere
moral obligation or conscience duty arising wholly from ethical motives or a mere conscientious duty
unconnected with any legal obligation, perfect or imperfect, or with the receipt of benefit by the
promisor of a material or pecuniary nature will not furnish a consideration for an executory promise. .
...

In view of the foregoing considerations, we are of the opinion and so hold, that the promise made by an
organizer of a dog racing course to a stockholder to return to him certain amounts paid by the latter in
satisfaction of his subscription upon the belief of said organizer that he was morally responsible because of
the failure of the enterprise, is not the consideration required by article 1261 of the Civil Code as an
essential element for the legal existence of an onerous contract which would bind the promisor to comply
with his promise.

Wherefore, the appealed judgment is reversed and the costs to the plaintiff.

Avanceña, C.J., Imperial, Diaz, Laurel, Concepcion, and Moran, JJ., concur.

[No. 48006. July 8, 1942]

Fausto Barredo, petitioner, vs. Severino Garcia and Timotea Almario, respond-ents.
1.Damages; Quasi-delict or "Culpa Aquiliana"; Primary and Direct Responsibility of Em-ployers under Articles
1902-1910 of the Civil Code.—A head-on collision between a taxi and a carretela resulted in the death of a 16-
year-old boy, one of the passengers of the car-retela. A criminal action was filed against the taxi driver and he
was convicted and sentenced accordingly. The court in the criminal case granted the petition that the right to
bring a separate civil action be reserved. There-after the parents of the deceased brought suit for damages
against the proprietor of the taxi, the employer of the taxi driver, under article 1903 of the Civil Code. Defendant
contended that his liability was governed by the Revised Penal Code, according to which his responsibil-ity was
only secondary, but no civil action had been brought against the taxi driver. Held: That this separate civil action
lies, the em-ployer being primarily and directly responsi-ble in damages under articles 1902 and 1903 of the Civil
Code.
2.Id.; Id.; Id.—A quasi-delict or "culpa aquiliana" is a separate legal institution under the Civil Code, with a
substantivity all its own, and individuality that is entirely apart and inde-pendent from a delict or crime. Upon
this principle, and on the wording and spirit of article 1903 of the Civil Code, the primary and direct
responsibility of employers may be safely anchored.
3.Id.; Id.; Id.—The individuality of cuati-delito or culpa extra-contractual looms clear and unmis-takable. This
legal institution is of ancient lineage, one of its early ancestors being the Lex Aquilia in the Roman Law. In fact, in
Spanish legal términology, this responsibility is often referred to as culpa aquiliana. The Partidas also
contributed to the genealogy of the present fault or negligence under the Civil Code: for instance, Law 6, Title
16, of Partida 7, says: "Tenudo es de fazer emienda, porque, cómo quier que el non fizo a sabiendas el daño al
otro, pero acaesció por su culpa."
4.Id.; Id.; Id.—The distinctive nature of cuasi-delitos survives in the Civil Code. According to article 1089, one of
the five sources of oblig-ations is this legal institution of cuasi-delito or culpa extra-contractual: "los actos * *
* en que intervenga cualquier genero de culpa o negligencia." Then article 1093 provides that this kind of
obligation shall be governed by Chapter II of Title XVI of Book IV, meaning articles 1902-1910. This portion of the
Civil Code is exclusively devoted to the legal insti-tution of culpa aquiliana.

5.Id.; Id.; Id.; Distinction between Crimes under the Penal Code and the "Culpa Aquiliana" or "Cuasi-Delito"
under the Civil Code.—A distinction exists between the civil liabil-ity arising from a crime and the responsibil-ity
for cuasi-delitos or culpa extra-contractual. The same negligent act causing damages may produce civil liability
arising from a crime un-der article 100 of the Revised Penal Code, or create an action for cuasi-delito or culpa
extra-contractual under articles 1902-1910 of the Civil Code. Plaintiffs were free to choose which remedy to
enforce. Some of the differ-ences between crimes under the Penal Code and the culpa aquiliana or cuasi-delito
under the Civil Code are enumerated in the decision.
6.Id.; Id.; Id.; Opinions of Jurists.—The decision sets out extracts from opinions of jurists on the separate
existence of cuasi-delicts and the employer's primary and direct liability under article 1903 of the Civil Code.
7.Id.; Id.; Id.; Sentences of the Supreme Tri- Barredo vs. Garcia and Almario, 73 Phil., 607, No. 48006 July 8, 1942
bunal of Spain.—The decision cites sentences of the Supreme Tribunal of Spain upholding the principles above
set forth: that a cuasi-delict or culpa extra-contractual is a separate and distinct legal institution, independent
from the civil responsibility arising from criminal liability, and that an employer is, under article 1903 of the Civil
Code, primarily and directly responsible for the negligent acts of his em-ployee.

8.Id.; Id.; Id.; Decisions of this Court.—Decisions of this Court are also cited holding that, 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 his civil liability
arising from his crime.

9.Id.; Id.; Id.; Foundations of Doctrines Above Set Forth; Literal Meaning of the Law.— The Revised Penal Code
punishes not only reck-less but also simple negligence; if it should be held that articles 1902-1910, Civil Code,
apply only to negligence not punishable by law, culpa aquiliana would have very little appli-cation in actual life.
The literal meaning of the law will not be used to smother a princi-ple of such ancient origin and such full-grown
development as culpa aquiliana.

10.Id.; Id.; Id.; Id.; Degree of Proof.—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, defendant can and
should be made responsible in a civil action under ar-ticles 1902 to 1910, Civil Code. Ubi jus ibi remedium.

11.Id.; Id.; Id.; Id.; Expeditious Remedy.—The primary and direct responsibility of employer under article 1903,
Civil Code, is more likely to facilitate remedy for civil wrongs. Such primary and direct responsibility of employers
is calculated to protect society.

12.Id.; Id.; Id.; Id.; Practice of Relying Solely on Civil Responsibility for a Crime.—The harm done by such practice
is pointed out, and the principle of responsibility for fault or neg-ligence under articles 1902 et seq., of the Civil
Code is restored to its full vigor.

G.R. No. L-48006 July 8, 1942

FAUSTO BARREDO, petitioner,

vs.
SEVERINO GARCIA and TIMOTEA ALMARIO, respondents.

Celedonio P. Gloria and Antonio Barredo for petitioner.

Jose G. Advincula for respondents.

BOCOBO, J.:

This case comes up from the Court of Appeals which held the petitioner herein, Fausto Barredo, liable in
damages for the death of Faustino Garcia caused by the negligence of Pedro Fontanilla, a taxi driver
employed by said Fausto Barredo.

At about half past one in the morning of May 3, 1936, on the road between Malabon and Navotas,
Province of Rizal, there was a head-on collision between a taxi of the Malate Taxicab driven by Pedro
Fontanilla and a carretela guided by Pedro Dimapalis. The carretela was overturned, and one of its
passengers, 16-year-old boy Faustino Garcia, suffered injuries from which he died two days later. A
criminal action was filed against Fontanilla in the Court of First Instance of Rizal, and he was convicted
and sentenced to an indeterminate sentence of one year and one day to two years of prision
correccional. The court in the criminal case granted the petition that the right to bring a separate civil
action be reserved. The Court of Appeals affirmed the sentence of the lower court in the criminal case.
Severino Garcia and Timotea Almario, parents of the deceased on March 7, 1939, brought an action in
the Court of First Instance of Manila against Fausto Barredo as the sole proprietor of the Malate Taxicab
and employer of Pedro Fontanilla. On July 8, 1939, the Court of First Instance of Manila awarded
damages in favor of the plaintiffs for P2,000 plus legal interest from the date of the complaint. This
decision was modified by the Court of Appeals by reducing the damages to P1,000 with legal interest
from the time the action was instituted. It is undisputed that Fontanilla 's negligence was the cause of the
mishap, as he was driving on the wrong side of the road, and at high speed. As to Barredo's
responsibility, the Court of Appeals found:
 ... It is admitted that defendant is Fontanilla's employer. There is proof that he exercised the
diligence of a good father of a family to prevent damage. (See p. 22, appellant's brief.) In fact it
is shown he was careless in employing Fontanilla who had been caught several times for
violation of the Automobile Law and speeding (Exhibit A) — violation which appeared in the
records of the Bureau of Public Works available to be public and to himself. Therefore, he must
indemnify plaintiffs under the provisions of article 1903 of the Civil Code.

The main theory of the defense is that the liability of Fausto Barredo is governed by the Revised Penal
Code; hence, his liability is only subsidiary, and as there has been no civil action against Pedro
Fontanilla, the person criminally liable, Barredo cannot be held responsible in the case. The petitioner's
brief states on page 10:

... The Court of Appeals holds that the petitioner is being sued for his failure to exercise all the
diligence of a good father of a family in the selection and supervision of Pedro Fontanilla to
prevent damages suffered by the respondents. In other words, The Court of Appeals insists on
applying in the case article 1903 of the Civil Code. Article 1903 of the Civil Code is found in
Chapter II, Title 16, Book IV of the Civil Code. This fact makes said article to a civil liability
arising from a crime as in the case at bar simply because Chapter II of Title 16 of Book IV of the
Civil Code, in the precise words of article 1903 of the Civil Code itself, is applicable only to
"those (obligations) arising from wrongful or negligent acts or commission not punishable by
law.

The gist of the decision of the Court of Appeals is expressed thus:

... We cannot agree to the defendant's contention. The liability sought to be imposed upon him in
this action is not a civil obligation arising from a felony or a misdemeanor (the crime of Pedro
Fontanilla,), but an obligation imposed in article 1903 of the Civil Code by reason of his
negligence in the selection or supervision of his servant or employee.

The pivotal question in this case is whether the plaintiffs may bring this separate civil action against
Fausto Barredo, thus making him primarily and directly, responsible under article 1903 of the Civil
Code as an employer of Pedro Fontanilla. The defendant maintains that Fontanilla's negligence being
punishable by the Penal Code, his (defendant's) liability as an employer is only subsidiary, according to
said Penal code, but Fontanilla has not been sued in a civil action and his property has not been
exhausted. To decide the main issue, we must cut through the tangle that has, in the minds of many
confused and jumbled together delitos and cuasi delitos, or crimes under the Penal Code and fault or
negligence under articles 1902-1910 of the Civil Code. This should be done, because justice may be lost
in a labyrinth, unless principles and remedies are distinctly envisaged. Fortunately, we are aided in our
inquiry by the luminous presentation of the perplexing subject by renown jurists and we are likewise
guided by the decisions of this Court in previous cases as well as by the solemn clarity of the
consideration in several sentences of the Supreme Tribunal of Spain.

Authorities support the proposition that a quasi-delict or "culpa aquiliana " is a separate legal institution
under the Civil Code with a substantivity all its own, and individuality that is entirely apart and
independent from delict or crime. Upon this principle and on the wording and spirit article 1903 of the
Civil Code, the primary and direct responsibility of employers may be safely anchored.

The pertinent provisions of the Civil Code and Revised Penal Code are as follows:
 CIVIL CODE

ART. 1089 Obligations arise from law, from contracts and quasi-contracts, and from acts and
omissions which are unlawful or in which any kind of fault or negligence intervenes.

xxx xxx xxx

ART. 1092. Civil obligations arising from felonies or misdemeanors shall be governed by the
provisions of the Penal Code.

ART. 1093. Those which are derived from acts or omissions in which fault or negligence, not
punishable by law, intervenes shall be subject to the provisions of Chapter II, Title XVI of this
book.

xxx xxx xxx

ART 1902. Any person who by an act or omission causes damage to another by his fault or
negligence shall be liable for the damage so done.

ART. 1903. The obligation imposed by the next preceding article is enforcible, not only for
personal acts and omissions, but also for those of persons for whom another is responsible.

The father and in, case of his death or incapacity, the mother, are liable for any damages caused
by the minor children who live with them.

Guardians are liable for damages done by minors or incapacitated persons subject to their
authority and living with them.

Owners or directors of an establishment or business are equally liable for any damages caused by
their employees while engaged in the branch of the service in which employed, or on occasion of
the performance of their duties.

The State is subject to the same liability when it acts through a special agent, but not if the
damage shall have been caused by the official upon whom properly devolved the duty of doing
the act performed, in which case the provisions of the next preceding article shall be applicable.

Finally, teachers or directors of arts trades are liable for any damages caused by their pupils or
apprentices while they are under their custody.

The liability imposed by this article shall cease in case the persons mentioned therein prove that
they are exercised all the diligence of a good father of a family to prevent the damage.

ART. 1904. Any person who pays for damage caused by his employees may recover from the
latter what he may have paid.

REVISED PENAL CODE

ART. 100. Civil liability of a person guilty of felony. — Every person criminally liable for a
felony is also civilly liable.
 ART. 101. Rules regarding civil liability in certain cases. — The exemption from criminal
liability established in subdivisions 1, 2, 3, 5, and 6 of article 12 and in subdivision 4 of article
11 of this Code does not include exemption from civil liability, which shall be enforced to the
following rules:

First. In cases of subdivision, 1, 2 and 3 of article 12 the civil liability for acts committed by any
imbecile or insane person, and by a person under nine years of age, or by one over nine but under
fifteen years of age, who has acted without discernment shall devolve upon those having such
person under their legal authority or control, unless it appears that there was no fault or
negligence on their part.

Should there be no person having such insane, imbecile or minor under his authority, legal
guardianship, or control, or if such person be insolvent, said insane, imbecile, or minor shall
respond with their own property, excepting property exempt from execution, in accordance with
the civil law.

Second. In cases falling within subdivision 4 of article 11, the person for whose benefit the harm
has been prevented shall be civilly liable in proportion to the benefit which they may have
received.

The courts shall determine, in their sound discretion, the proportionate amount for which each one shall
be liable.

When the respective shares can not be equitably determined, even approximately, or when the liability
also attaches to the Government, or to the majority of the inhabitants of the town, and, in all events,
whenever the damage has been caused with the consent of the authorities or their agents,
indemnification shall be made in the manner prescribed by special laws or regulations.

Third. In cases falling within subdivisions 5 and 6 of article 12, the persons using violence or causing
the fear shall be primarily liable and secondarily, or, if there be no such persons, those doing the act
shall be liable, saving always to the latter that part of their property exempt from execution.

ART. 102. Subsidiary civil liability of innkeepers, tavern keepers and proprietors of
establishment. — In default of persons criminally liable, innkeepers, tavern keepers, and any
other persons or corporation shall be civilly liable for crimes committed in their establishments,
in all cases where a violation of municipal ordinances or some general or special police
regulation shall have been committed by them or their employees.

Innkeepers are also subsidiarily liable for the restitution of goods taken by robbery or theft
within their houses lodging therein, or the person, or for the payment of the value thereof,
provided that such guests shall have notified in advance the innkeeper himself, or the person
representing him, of the deposit of such goods within the inn; and shall furthermore have
followed the directions which such innkeeper or his representative may have given them with
respect to the care of and vigilance over such goods. No liability shall attach in case of robbery
with violence against or intimidation against or intimidation of persons unless committed by the
innkeeper's employees.

ART. 103. Subsidiary civil liability of other persons. — The subsidiary liability established in
the next preceding article shall also apply to employers, teachers, persons, and corporations
 engaged in any kind of industry for felonies committed by their servants, pupils, workmen,
apprentices, or employees in the discharge of their duties.

xxx xxx xxx

ART. 365. Imprudence and negligence. — Any person who, by reckless imprudence, shall
commit any act which, had it been intentional, would constitute a grave felony, shall suffer the
penalty of arresto mayor in its maximum period to prision correccional in its minimum period; if
it would have constituted a less grave felony, the penalty of arresto mayor in its minimum and
medium periods shall be imposed.

Any person who, by simple imprudence or negligence, shall commit an act which would
otherwise constitute a grave felony, shall suffer the penalty of arresto mayor in its medium and
maximum periods; if it would have constituted a less serious felony, the penalty of arresto mayor
in its minimum period shall be imposed."

It will thus be seen that while the terms of articles 1902 of the Civil Code seem to be broad enough to
cover the driver's negligence in the instant case, nevertheless article 1093 limits cuasi-delitos to acts or
omissions "not punishable by law." But inasmuch as article 365 of the Revised Penal Code punishes not
only reckless but even simple imprudence or negligence, the fault or negligence under article 1902 of
the Civil Code has apparently been crowded out. It is this overlapping that makes the "confusion worse
confounded." However, a closer study shows that such a concurrence of scope in regard to negligent acts
does not destroy the distinction between the civil liability arising from a crime and the responsibility for
cuasi-delitos or culpa extra-contractual. The same negligent act causing damages may produce civil
liability arising from a crime under article 100 of the Revised Penal Code, or create an action for cuasi-
delito or culpa extra-contractual under articles 1902-1910 of the Civil Code.

The individuality of cuasi-delito or culpa extra-contractual looms clear and unmistakable. This legal
institution is of ancient lineage, one of its early ancestors being the Lex Aquilia in the Roman Law. In
fact, in Spanish legal terminology, this responsibility is often referred to as culpa aquiliana. The Partidas
also contributed to the genealogy of the present fault or negligence under the Civil Code; for instance,
Law 6, Title 15, of Partida 7, says: "Tenudo es de fazer emienda, porque, como quier que el non fizo a
sabiendas en daño al otro, pero acaescio por su culpa."

The distinctive nature of cuasi-delitos survives in the Civil Code. According to article 1089, one of the
five sources of obligations is this legal institution of cuasi-delito or culpa extra-contractual: "los actos . .
. en que intervenga cualquier genero de culpa o negligencia." Then article 1093 provides that this kind of
obligation shall be governed by Chapter II of Title XVI of Book IV, meaning articles 1902-0910. This
portion of the Civil Code is exclusively devoted to the legal institution of culpa aquiliana.

Some of the differences between crimes under the Penal Code and the culpa aquiliana or cuasi-delito
under the Civil Code are:

1. That crimes affect the public interest, while cuasi-delitos are only of private concern.

2. That, consequently, the Penal Code punishes or corrects the criminal act, while the Civil Code, by
means of indemnification, merely repairs the damage.
3. That delicts are not as broad as quasi-delicts, because the former are punished only if there is a penal
law clearly covering them, while the latter, cuasi-delitos, include all acts in which "any king of fault or
negligence intervenes." However, it should be noted that not all violations of the penal law produce civil
responsibility, such as begging in contravention of ordinances, violation of the game laws, infraction of
the rules of traffic when nobody is hurt. (See Colin and Capitant, "Curso Elemental de Derecho Civil,"
Vol. 3, p. 728.)

Let us now ascertain what some jurists say on the separate existence of quasi-delicts and the employer's
primary and direct liability under article 1903 of the Civil Code.

Dorado Montero in his essay on "Responsibilidad" in the "Enciclopedia Juridica Española" (Vol.
XXVII, p. 414) says:

El concepto juridico de la responsabilidad civil abarca diversos aspectos y comprende a

diferentes personas. Asi, existe una responsabilidad civil propiamente dicha, que en ningun casl
lleva aparejada responsabilidad criminal alguna, y otra que es consecuencia indeclinable de la
penal que nace de todo delito o falta."

The juridical concept of civil responsibility has various aspects and comprises different persons.
Thus, there is a civil responsibility, properly speaking, which in no case carries with it any
criminal responsibility, and another which is a necessary consequence of the penal liability as a
result of every felony or misdemeanor."

Maura, an outstanding authority, was consulted on the following case: There had been a collision
between two trains belonging respectively to the Ferrocarril Cantabrico and the Ferrocarril del Norte. An
employee of the latter had been prosecuted in a criminal case, in which the company had been made a
party as subsidiarily responsible in civil damages. The employee had been acquitted in the criminal case,
and the employer, the Ferrocarril del Norte, had also been exonerated. The question asked was whether
the Ferrocarril Cantabrico could still bring a civil action for damages against the Ferrocarril del Norte.
Maura's opinion was in the affirmative, stating in part (Maura, Dictamenes, Vol. 6, pp. 511-513):

Quedando las cosas asi, a proposito de la realidad pura y neta de los hechos, todavia menos
parece sostenible que exista cosa juzgada acerca de la obligacion civil de indemnizar los
quebrantos y menoscabos inferidos por el choque de los trenes. El titulo en que se funda la
accion para demandar el resarcimiento, no puede confundirse con las responsabilidades civiles
nacidas de delito, siquiera exista en este, sea el cual sea, una culpa rodeada de notas agravatorias
que motivan sanciones penales, mas o menos severas. La lesion causada por delito o falta en los
derechos civiles, requiere restituciones, reparaciones o indemnizaciones, que cual la pena misma
atañen al orden publico; por tal motivo vienen encomendadas, de ordinario, al Ministerio Fiscal;
y claro es que si por esta via se enmiendan los quebrantos y menoscabos, el agraviado excusa
procurar el ya conseguido desagravio; pero esta eventual coincidencia de los efectos, no borra la
diversidad originaria de las acciones civiles para pedir indemnizacion.

Estas, para el caso actual (prescindiendo de culpas contractuales, que no vendrian a cuento y que
tiene otro regimen), dimanan, segun el articulo 1902 del Codigo Civil, de toda accion u omision,
causante de daños o perjuicios, en que intervenga culpa o negligencia. Es trivial que acciones
semejantes son ejercitadas ante los Tribunales de lo civil cotidianamente, sin que la Justicia
punitiva tenga que mezclarse en los asuntos. Los articulos 18 al 21 y 121 al 128 del Codigo
Penal, atentos al espiritu y a los fines sociales y politicos del mismo, desenvuelven y ordenan la
materia de responsabilidades civiles nacidas de delito, en terminos separados del regimen por ley
comun de la culpa que se denomina aquiliana, por alusion a precedentes legislativos del Corpus
Juris. Seria intempestivo un paralelo entre aquellas ordenaciones, y la de la obligacion de
indemnizar a titulo de culpa civil; pero viene al caso y es necesaria una de las diferenciaciones
que en el tal paralelo se notarian.

Los articulos 20 y 21 del Codigo Penal, despues de distribuir a su modo las responsabilidades
civiles, entre los que sean por diversos conceptos culpables del delito o falta, las hacen
extensivas a las empresas y los establecimientos al servicio de los cuales estan los delincuentes;
pero con caracter subsidiario, o sea, segun el texto literal, en defecto de los que sean
responsables criminalmente. No coincide en ello el Codigo Civil, cuyo articulo 1903, dice; La
obligacion que impone el articulo anterior es exigible, no solo por los actos y omisiones propios,
sino por los de aquellas personas de quienes se debe responder; personas en la enumeracion de
las cuales figuran los dependientes y empleados de los establecimientos o empresas, sea por
actos del servicio, sea con ocasion de sus funciones. Por esto acontece, y se observa en la
jurisprudencia, que las empresas, despues de intervenir en las causas criminales con el caracter
subsidiario de su responsabilidad civil por razon del delito, son demandadas y condenadas
directa y aisladamente, cuando se trata de la obligacion, ante los tribunales civiles.

Siendo como se ve, diverso el titulo de esta obligacion, y formando verdadero postulado de
nuestro regimen judicial la separacion entre justicia punitiva y tribunales de lo civil, de suerte
que tienen unos y otros normas de fondo en distintos cuerpos legales, y diferentes modos de
proceder, habiendose, por añadidura, abstenido de asistir al juicio criminal la Compañia del
Ferrocarril Cantabrico, que se reservo ejercitar sus acciones, parece innegable que la de
indemnizacion por los daños y perjuicios que le irrogo el choque, no estuvo sub judice ante el
Tribunal del Jurado, ni fue sentenciada, sino que permanecio intacta, al pronunciarse el fallo de
21 de marzo. Aun cuando el veredicto no hubiese sido de inculpabilidad, mostrose mas arriba,
que tal accion quedaba legitimamente reservada para despues del proceso; pero al declararse que
no existio delito, ni responsabilidad dimanada de delito, materia unica sobre que tenian
jurisdiccion aquellos juzgadores, se redobla el motivo para la obligacion civil ex lege, y se
patentiza mas y mas que la accion para pedir su cumplimiento permanece incolume, extraña a la
cosa juzgada.

As things are, apropos of the reality pure and simple of the facts, it seems less tenable that there
should be res judicata with regard to the civil obligation for damages on account of the losses
caused by the collision of the trains. The title upon which the action for reparation is based
cannot be confused with the civil responsibilities born of a crime, because there exists in the
latter, whatever each nature, a culpa surrounded with aggravating aspects which give rise to
penal measures that are more or less severe. The injury caused by a felony or misdemeanor upon
civil rights requires restitutions, reparations, or indemnifications which, like the penalty itself,
affect public order; for this reason, they are ordinarily entrusted to the office of the prosecuting
attorney; and it is clear that if by this means the losses and damages are repaired, the injured
party no longer desires to seek another relief; but this coincidence of effects does not eliminate
the peculiar nature of civil actions to ask for indemnity.

Such civil actions in the present case (without referring to contractual faults which are not
pertinent and belong to another scope) are derived, according to article 1902 of the Civil Code,
from every act or omission causing losses and damages in which culpa or negligence intervenes.
It is unimportant that such actions are every day filed before the civil courts without the criminal
 courts interfering therewith. Articles 18 to 21 and 121 to 128 of the Penal Code, bearing in mind
the spirit and the social and political purposes of that Code, develop and regulate the matter of
civil responsibilities arising from a crime, separately from the regime under common law, of
culpa which is known as aquiliana, in accordance with legislative precedent of the Corpus Juris.
It would be unwarranted to make a detailed comparison between the former provisions and that
regarding the obligation to indemnify on account of civil culpa; but it is pertinent and necessary
to point out to one of such differences.

Articles 20 and 21 of the Penal Code, after distriburing in their own way the civil responsibilities
among those who, for different reasons, are guilty of felony or misdemeanor, make such civil
responsibilities applicable to enterprises and establishments for which the guilty parties render
service, but with subsidiary character, that is to say, according to the wording of the Penal Code,
in default of those who are criminally responsible. In this regard, the Civil Code does not
coincide because article 1903 says: "The obligation imposed by the next preceding article is
demandable, not only for personal acts and omissions, but also for those of persons for whom
another is responsible." Among the persons enumerated are the subordinates and employees of
establishments or enterprises, either for acts during their service or on the occasion of their
functions. It is for this reason that it happens, and it is so observed in judicial decisions, that the
companies or enterprises, after taking part in the criminal cases because of their subsidiary civil
responsibility by reason of the crime, are sued and sentenced directly and separately with regard
to the obligation, before the civil courts.

Seeing that the title of this obligation is different, and the separation between punitive justice and
the civil courts being a true postulate of our judicial system, so that they have different
fundamental norms in different codes, as well as different modes of procedure, and inasmuch as
the Compaña del Ferrocarril Cantabrico has abstained from taking part in the criminal case and
has reserved the right to exercise its actions, it seems undeniable that the action for
indemnification for the losses and damages caused to it by the collision was not sub judice before
the Tribunal del Jurado, nor was it the subject of a sentence, but it remained intact when the
decision of March 21 was rendered. Even if the verdict had not been that of acquittal, it has
already been shown that such action had been legitimately reserved till after the criminal
prosecution; but because of the declaration of the non-existence of the felony and the non-
existence of the responsibility arising from the crime, which was the sole subject matter upon
which the Tribunal del Jurado had jurisdiction, there is greater reason for the civil obligation ex
lege, and it becomes clearer that the action for its enforcement remain intact and is not res
judicata.

Laurent, a jurist who has written a monumental work on the French Civil Code, on which the Spanish
Civil Code is largely based and whose provisions on cuasi-delito or culpa extra-contractual are similar
to those of the Spanish Civil Code, says, referring to article 1384 of the French Civil Code which
corresponds to article 1903, Spanish Civil Code:

The action can be brought directly against the person responsible (for another), without including
the author of the act. The action against the principal is accessory in the sense that it implies the
existence of a prejudicial act committed by the employee, but it is not subsidiary in the sense that
it can not be instituted till after the judgment against the author of the act or at least, that it is
subsidiary to the principal action; the action for responsibility (of the employer) is in itself a
principal action. (Laurent, Principles of French Civil Law, Spanish translation, Vol. 20, pp. 734-
735.)
Amandi, in his "Cuestionario del Codigo Civil Reformado" (Vol. 4, pp. 429, 430), declares that the
responsibility of the employer is principal and not subsidiary. He writes:

Cuestion 1. La responsabilidad declarada en el articulo 1903 por las acciones u omisiones de

aquellas personas por las que se debe responder, es subsidiaria? es principal? Para contestar a
esta pregunta es necesario saber, en primer lugar, en que se funda el precepto legal. Es que
realmente se impone una responsabilidad por una falta ajena? Asi parece a primera vista; pero
semejante afirmacion seria contraria a la justicia y a la maxima universal, segun la que las faltas
son personales, y cada uno responde de aquellas que le son imputables. La responsabilidad de
que tratamos se impone con ocasion de un delito o culpa, pero no por causa de ellos, sino por
causa del causi delito, esto es, de la imprudencia o de la negligencia del padre, del tutor, del
dueño o director del establecimiento, del maestro, etc. Cuando cualquiera de las personas que
enumera el articulo citado (menores de edad, incapacitados, dependientes, aprendices) causan un
daño, la ley presume que el padre, el tutor, el maestro, etc., han cometido una falta de
negligencia para prevenir o evitar el daño. Esta falta es la que la ley castiga. No hay, pues,
responsabilidad por un hecho ajeno, sino en la apariencia; en realidad la responsabilidad se exige
por un hecho propio. La idea de que esa responsabilidad sea subsidiaria es, por lo tanto,
completamente inadmisible.

Question No. 1. Is the responsibility declared in article 1903 for the acts or omissions of those
persons for who one is responsible, subsidiary or principal? In order to answer this question it is
necessary to know, in the first place, on what the legal provision is based. Is it true that there is a
responsibility for the fault of another person? It seems so at first sight; but such assertion would
be contrary to justice and to the universal maxim that all faults are personal, and that everyone is
liable for those faults that can be imputed to him. The responsibility in question is imposed on
the occasion of a crime or fault, but not because of the same, but because of the cuasi-delito, that
is to say, the imprudence or negligence of the father, guardian, proprietor or manager of the
establishment, of the teacher, etc. Whenever anyone of the persons enumerated in the article
referred to (minors, incapacitated persons, employees, apprentices) causes any damage, the law
presumes that the father, guardian, teacher, etc. have committed an act of negligence in not
preventing or avoiding the damage. It is this fault that is condemned by the law. It is, therefore,
only apparent that there is a responsibility for the act of another; in reality the responsibility
exacted is for one's own act. The idea that such responsibility is subsidiary is, therefore,
completely inadmissible.

Oyuelos, in his "Digesto: Principios, Doctrina y Jurisprudencia, Referentes al Codigo Civil Español,"
says in Vol. VII, p. 743:

Es decir, no responde de hechos ajenos, porque se responde solo de su propia culpa, doctrina del
articulo 1902; mas por excepcion, se responde de la ajena respecto de aquellas personas con las
que media algun nexo o vinculo, que motiva o razona la responsabilidad. Esta responsabilidad,
es directa o es subsidiaria? En el orden penal, el Codigo de esta clase distingue entre menores e
incapacitados y los demas, declarando directa la primera (articulo 19) y subsidiaria la segunda
(articulos 20 y 21); pero en el orden civil, en el caso del articulo 1903, ha de entenderse directa,
por el tenor del articulo que impone la responsabilidad precisamente "por los actos de aquellas
personas de quienes se deba responder."

That is to say, one is not responsible for the acts of others, because one is liable only for his own
faults, this being the doctrine of article 1902; but, by exception, one is liable for the acts of those
 persons with whom there is a bond or tie which gives rise to the responsibility. Is this
responsibility direct or subsidiary? In the order of the penal law, the Penal Code distinguishes
between minors and incapacitated persons on the one hand, and other persons on the other,
declaring that the responsibility for the former is direct (article 19), and for the latter, subsidiary
(articles 20 and 21); but in the scheme of the civil law, in the case of article 1903, the
responsibility should be understood as direct, according to the tenor of that articles, for precisely
it imposes responsibility "for the acts of those persons for whom one should be responsible."

Coming now to the sentences of the Supreme Tribunal of Spain, that court has upheld the principles
above set forth: that a quasi-delict or culpa extra-contractual is a separate and distinct legal institution,
independent from the civil responsibility arising from criminal liability, and that an employer is, under
article 1903 of the Civil Code, primarily and directly responsible for the negligent acts of his employee.

One of the most important of those Spanish decisions is that of October 21, 1910. In that case, Ramon
Lafuente died as the result of having been run over by a street car owned by the "compañia Electric
Madrileña de Traccion." The conductor was prosecuted in a criminal case but he was acquitted.
Thereupon, the widow filed a civil action against the street car company, paying for damages in the
amount of 15,000 pesetas. The lower court awarded damages; so the company appealed to the Supreme
Tribunal, alleging violation of articles 1902 and 1903 of the Civil Code because by final judgment the
non-existence of fault or negligence had been declared. The Supreme Court of Spain dismissed the
appeal, saying:

Considerando que el primer motivo del recurso se funda en el equivocado supuesto de que el
Tribunal a quo, al condonar a la compañia Electrica Madrileña al pago del daño causado con la
muerte de Ramon La fuente Izquierdo, desconoce el valor y efectos juridicos de la sentencia
absolutoria deictada en la causa criminal que se siguio por el mismo hecho, cuando es lo cierto
que de este han conocido las dos jurisdicciones bajo diferentes as pectos, y como la de lo
criminal declrao dentro de los limites de su competencia que el hecho de que se trata no era
constitutivo de delito por no haber mediado descuido o negligencia graves, lo que no excluye,
siendo este el unico fundamento del fallo absolutorio, el concurso de la culpa o negligencia no
califacadas, fuente de obligaciones civiles segun el articulo 1902 del Codigo, y que alcanzan,
segun el 1903, netre otras perosnas, a los Directores de establecimientos o empresas por los
daños causados por sus dependientes en determinadas condiciones, es manifesto que la de lo
civil, al conocer del mismo hehco baho este ultimo aspecto y al condenar a la compañia
recurrente a la indemnizacion del daño causado por uno de sus empleados, lejos de infringer los
mencionados textos, en relacion con el articulo 116 de la Ley de Enjuciamiento Criminal, se ha
atenido estrictamente a ellos, sin invadir atribuciones ajenas a su jurisdiccion propia, ni
contrariar en lo mas minimo el fallo recaido en la causa.

Considering that the first ground of the appeal is based on the mistaken supposition that the trial
court, in sentencing the Compañia Madrileña to the payment of the damage caused by the death
of Ramon Lafuente Izquierdo, disregards the value and juridical effects of the sentence of
acquittal rendered in the criminal case instituted on account of the same act, when it is a fact that
the two jurisdictions had taken cognizance of the same act in its different aspects, and as the
criminal jurisdiction declared within the limits of its authority that the act in question did not
constitute a felony because there was no grave carelessness or negligence, and this being the only
basis of acquittal, it does no exclude the co-existence of fault or negligence which is not
qualified, and is a source of civil obligations according to article 1902 of the Civil Code,
affecting, in accordance with article 1903, among other persons, the managers of establishments
 or enterprises by reason of the damages caused by employees under certain conditions, it is
manifest that the civil jurisdiccion in taking cognizance of the same act in this latter aspect and
in ordering the company, appellant herein, to pay an indemnity for the damage caused by one of
its employees, far from violating said legal provisions, in relation with article 116 of the Law of
Criminal Procedure, strictly followed the same, without invading attributes which are beyond its
own jurisdiction, and without in any way contradicting the decision in that cause. (Emphasis
supplied.)

It will be noted, as to the case just cited:

First. That the conductor was not sued in a civil case, either separately or with the street car company.
This is precisely what happens in the present case: the driver, Fontanilla, has not been sued in a civil
action, either alone or with his employer.

Second. That the conductor had been acquitted of grave criminal negligence, but the Supreme Tribunal
of Spain said that this did not exclude the co-existence of fault or negligence, which is not qualified, on
the part of the conductor, under article 1902 of the Civil Code. In the present case, the taxi driver was
found guilty of criminal negligence, so that if he had even sued for his civil responsibility arising from
the crime, he would have been held primarily liable for civil damages, and Barredo would have been
held subsidiarily liable for the same. But the plaintiffs are directly suing Barredo, on his primary
responsibility because of his own presumed negligence — which he did not overcome — under article
1903. Thus, there were two liabilities of Barredo: first, the subsidiary one because of the civil liability of
the taxi driver arising from the latter's criminal negligence; and, second, Barredo's primary liability as an
employer under article 1903. The plaintiffs were free to choose which course to take, and they preferred
the second remedy. In so doing, they were acting within their rights. It might be observed in passing,
that the plaintiff choose the more expeditious and effective method of relief, because Fontanilla was
either in prison, or had just been released, and besides, he was probably without property which might
be seized in enforcing any judgment against him for damages.

Third. That inasmuch as in the above sentence of October 21, 1910, the employer was held liable civilly,
notwithstanding the acquittal of the employee (the conductor) in a previous criminal case, with greater
reason should Barredo, the employer in the case at bar, be held liable for damages in a civil suit filed
against him because his taxi driver had been convicted. The degree of negligence of the conductor in the
Spanish case cited was less than that of the taxi driver, Fontanilla, because the former was acquitted in
the previous criminal case while the latter was found guilty of criminal negligence and was sentenced to
an indeterminate sentence of one year and one day to two years of prision correccional.

(See also Sentence of February 19, 1902, which is similar to the one above quoted.)

In the Sentence of the Supreme Court of Spain, dated February 14, 1919, an action was brought against
a railroad company for damages because the station agent, employed by the company, had unjustly and
fraudulently, refused to deliver certain articles consigned to the plaintiff. The Supreme Court of Spain
held that this action was properly under article 1902 of the Civil Code, the court saying:

Considerando que la sentencia discutida reconoce, en virtud de los hechos que consigna con
relacion a las pruebas del pleito: 1.º, que las expediciones facturadas por la compañia ferroviaria
a la consignacion del actor de las vasijas vacias que en su demanda relacionan tenian como fin el
que este las devolviera a sus remitentes con vinos y alcoholes; 2.º, que llegadas a su destino tales
mercanias no se quisieron entregar a dicho consignatario por el jefe de la estacion sin motivo
 justificado y con intencion dolosa, y 3.º, que la falta de entrega de estas expediciones al tiempo
de reclamarlas el demandante le originaron daños y perjuicios en cantidad de bastante
importancia como expendedor al por mayor que era de vinos y alcoholes por las ganancias que
dejo de obtener al verse privado de servir los pedidos que se le habian hecho por los remitentes
en los envases:

Considerando que sobre esta base hay necesidad de estimar los cuatro motivos que integran este
recurso, porque la demanda inicial del pleito a que se contrae no contiene accion que nazca del
incumplimiento del contrato de transporte, toda vez que no se funda en el retraso de la llegada de
las mercancias ni de ningun otro vinculo contractual entre las partes contendientes, careciendo,
por tanto, de aplicacion el articulo 371 del Codigo de Comercio, en que principalmente descansa
el fallo recurrido, sino que se limita a pedir la reparaction de los daños y perjuicios producidos en
el patrimonio del actor por la injustificada y dolosa negativa del porteador a la entrega de las
mercancias a su nombre consignadas, segun lo reconoce la sentencia, y cuya responsabilidad esta
claramente sancionada en el articulo 1902 del Codigo Civil, que obliga por el siguiente a la
Compañia demandada como ligada con el causante de aquellos por relaciones de caracter
economico y de jurarquia administrativa.

Considering that the sentence, in question recognizes, in virtue of the facts which it declares, in
relation to the evidence in the case: (1) that the invoice issued by the railroad company in favor
of the plaintiff contemplated that the empty receptacles referred to in the complaint should be
returned to the consignors with wines and liquors; (2) that when the said merchandise reached
their destination, their delivery to the consignee was refused by the station agent without
justification and with fraudulent intent, and (3) that the lack of delivery of these goods when they
were demanded by the plaintiff caused him losses and damages of considerable importance, as
he was a wholesale vendor of wines and liquors and he failed to realize the profits when he was
unable to fill the orders sent to him by the consignors of the receptacles:

Considering that upon this basis there is need of upholding the four assignments of error, as the
original complaint did not contain any cause of action arising from non-fulfillment of a contract
of transportation, because the action was not based on the delay of the goods nor on any
contractual relation between the parties litigant and, therefore, article 371 of the Code of
Commerce, on which the decision appealed from is based, is not applicable; but it limits to
asking for reparation for losses and damages produced on the patrimony of the plaintiff on
account of the unjustified and fraudulent refusal of the carrier to deliver the goods consigned to
the plaintiff as stated by the sentence, and the carrier's responsibility is clearly laid down in
article 1902 of the Civil Code which binds, in virtue of the next article, the defendant company,
because the latter is connected with the person who caused the damage by relations of economic
character and by administrative hierarchy. (Emphasis supplied.)

The above case is pertinent because it shows that the same act may come under both the Penal Code and
the Civil Code. In that case, the action of the agent was unjustified and fraudulent and therefore could
have been the subject of a criminal action. And yet, it was held to be also a proper subject of a civil
action under article 1902 of the Civil Code. It is also to be noted that it was the employer and not the
employee who was being sued.

Let us now examine the cases previously decided by this Court.

In the leading case of Rakes vs. Atlantic Gulf and Pacific Co. (7 Phil., 359, 362-365 [year 1907]), the
trial court awarded damages to the plaintiff, a laborer of the defendant, because the latter had negligently
failed to repair a tramway in consequence of which the rails slid off while iron was being transported,
and caught the plaintiff whose leg was broken. This Court held:

It is contended by the defendant, as its first defense to the action that the necessary conclusion
from these collated laws is that the remedy for injuries through negligence lies only in a criminal
action in which the official criminally responsible must be made primarily liable and his
employer held only subsidiarily to him. According to this theory the plaintiff should have
procured the arrest of the representative of the company accountable for not repairing the track,
and on his prosecution a suitable fine should have been imposed, payable primarily by him and
secondarily by his employer.

This reasoning misconceived the plan of the Spanish codes upon this subject. Article 1093 of the
Civil Code makes obligations arising from faults or negligence not punished by the law, subject
to the provisions of Chapter II of Title XVI. Section 1902 of that chapter reads:

"A person who by an act or omission causes damage to another when there is fault or
negligence shall be obliged to repair the damage so done.

"SEC. 1903. The obligation imposed by the preceeding article is demandable, not only
for personal acts and omissions, but also for those of the persons for whom they should
be responsible.

"The father, and on his death or incapacity, the mother, is liable for the damages caused
by the minors who live with them.

xxx xxx xxx

"Owners or directors of an establishment or enterprise are equally liable for the damages
caused by their employees in the service of the branches in which the latter may be
employed or in the performance of their duties.

xxx xxx xxx

"The liability referred to in this article shall cease when the persons mentioned therein
prove that they employed all the diligence of a good father of a family to avoid the
damage."

As an answer to the argument urged in this particular action it may be sufficient to point out that
nowhere in our general statutes is the employer penalized for failure to provide or maintain safe
appliances for his workmen. His obligation therefore is one 'not punished by the laws' and falls
under civil rather than criminal jurisprudence. But the answer may be a broader one. We should
be reluctant, under any conditions, to adopt a forced construction of these scientific codes, such
as is proposed by the defendant, that would rob some of these articles of effect, would shut out
litigants against their will from the civil courts, would make the assertion of their rights
dependent upon the selection for prosecution of the proper criminal offender, and render
recovery doubtful by reason of the strict rules of proof prevailing in criminal actions. Even if
these articles had always stood alone, such a construction would be unnecessary, but clear light
 is thrown upon their meaning by the provisions of the Law of Criminal Procedure of Spain (Ley
de Enjuiciamiento Criminal), which, though never in actual force in these Islands, was formerly
given a suppletory or explanatory effect. Under article 111 of this law, both classes of action,
civil and criminal, might be prosecuted jointly or separately, but while the penal action was
pending the civil was suspended. According to article 112, the penal action once started, the civil
remedy should be sought therewith, unless it had been waived by the party injured or been
expressly reserved by him for civil proceedings for the future. If the civil action alone was
prosecuted, arising out of a crime that could be enforced only on private complaint, the penal
action thereunder should be extinguished. These provisions are in harmony with those of articles
23 and 133 of our Penal Code on the same subject.

An examination of this topic might be carried much further, but the citation of these articles
suffices to show that the civil liability was not intended to be merged in the criminal nor even to
be suspended thereby, except as expressly provided in the law. Where an individual is civilly
liable for a negligent act or omission, it is not required that the injured party should seek out a
third person criminally liable whose prosecution must be a condition precedent to the
enforcement of the civil right.

Under article 20 of the Penal Code the responsibility of an employer may be regarded as
subsidiary in respect of criminal actions against his employees only while they are in process of
prosecution, or in so far as they determine the existence of the criminal act from which liability
arises, and his obligation under the civil law and its enforcement in the civil courts is not barred
thereby unless by the election of the injured person. Inasmuch as no criminal proceeding had
been instituted, growing our of the accident in question, the provisions of the Penal Code can not
affect this action. This construction renders it unnecessary to finally determine here whether this
subsidiary civil liability in penal actions has survived the laws that fully regulated it or has been
abrogated by the American civil and criminal procedure now in force in the Philippines.

The difficulty in construing the articles of the code above cited in this case appears from the
briefs before us to have arisen from the interpretation of the words of article 1093, "fault or
negligence not punished by law," as applied to the comprehensive definition of offenses in
articles 568 and 590 of the Penal Code. It has been shown that the liability of an employer
arising out of his relation to his employee who is the offender is not to be regarded as derived
from negligence punished by the law, within the meaning of articles 1902 and 1093. More than
this, however, it cannot be said to fall within the class of acts unpunished by the law, the
consequence of which are regulated by articles 1902 and 1903 of the Civil Code. The acts to
which these articles are applicable are understood to be those not growing out of pre-existing
duties of the parties to one another. But where relations already formed give rise to duties,
whether springing from contract or quasi contract, then breaches of those duties are subject to
articles 1101, 1103, and 1104 of the same code. A typical application of this distinction may be
found in the consequences of a railway accident due to defective machinery supplied by the
employer. His liability to his employee would arise out of the contract of employment, that to the
passengers out of the contract for passage, while that to the injured bystander would originate in
the negligent act itself.

In Manzanares vs. Moreta, 38 Phil., 821 (year 1918), the mother of the 8 of 9-year-old child Salvador
Bona brought a civil action against Moreta to recover damages resulting from the death of the child, who
had been run over by an automobile driven and managed by the defendant. The trial court rendered
judgment requiring the defendant to pay the plaintiff the sum of P1,000 as indemnity: This Court in
affirming the judgment, said in part:

If it were true that the defendant, in coming from the southern part of Solana Street, had to stop
his auto before crossing Real Street, because he had met vehicles which were going along the
latter street or were coming from the opposite direction along Solana Street, it is to be believed
that, when he again started to run his auto across said Real Street and to continue its way along
Solana Street northward, he should have adjusted the speed of the auto which he was operating
until he had fully crossed Real Street and had completely reached a clear way on Solana Street.
But, as the child was run over by the auto precisely at the entrance of Solana Street, this accident
could not have occurred if the auto had been running at a slow speed, aside from the fact that the
defendant, at the moment of crossing Real Street and entering Solana Street, in a northward
direction, could have seen the child in the act of crossing the latter street from the sidewalk on
the right to that on the left, and if the accident had occurred in such a way that after the
automobile had run over the body of the child, and the child's body had already been stretched
out on the ground, the automobile still moved along a distance of about 2 meters, this
circumstance shows the fact that the automobile entered Solana Street from Real Street, at a high
speed without the defendant having blown the horn. If these precautions had been taken by the
defendant, the deplorable accident which caused the death of the child would not have occurred.

It will be noticed that the defendant in the above case could have been prosecuted in a criminal case
because his negligence causing the death of the child was punishable by the Penal Code. Here is
therefore a clear instance of the same act of negligence being a proper subject-matter either of a criminal
action with its consequent civil liability arising from a crime or of an entirely separate and independent
civil action for fault or negligence under article 1902 of the Civil Code. Thus, in this jurisdiction, the
separate individually of a cuasi-delito or culpa aquiliana under the Civil Code has been fully and clearly
recognized, even with regard to a negligent act for which the wrongdoer could have been prosecuted and
convicted in a criminal case and for which, after such a conviction, he could have been sued for this civil
liability arising from his crime.

Years later (in 1930) this Court had another occasion to apply the same doctrine. In Bernal and Enverso
vs. House and Tacloban Electric & Ice Plant, Ltd., 54 Phil., 327, the parents of the five-year-old child,
Purificacion Bernal, brought a civil action to recover damages for the child's death as a result of burns
caused by the fault and negligence of the defendants. On the evening of April 10, 1925, the Good Friday
procession was held in Tacloban, Leyte. Fortunata Enverso with her daughter Purificacion Bernal had
come from another municipality to attend the same. After the procession the mother and the daughter
with two others were passing along Gran Capitan Street in front of the offices of the Tacloban Electric &
Ice Plant, Ltd., owned by defendants J. V. House, when an automobile appeared from the opposite
direction. The little girl, who was slightly ahead of the rest, was so frightened by the automobile that she
turned to run, but unfortunately she fell into the street gutter where hot water from the electric plant was
flowing. The child died that same night from the burns. The trial courts dismissed the action because of
the contributory negligence of the plaintiffs. But this Court held, on appeal, that there was no
contributory negligence, and allowed the parents P1,000 in damages from J. V. House who at the time of
the tragic occurrence was the holder of the franchise for the electric plant. This Court said in part:

Although the trial judge made the findings of fact hereinbefore outlined, he nevertheless was led
to order the dismissal of the action because of the contributory negligence of the plaintiffs. It is
from this point that a majority of the court depart from the stand taken by the trial judge. The
mother and her child had a perfect right to be on the principal street of Tacloban, Leyte, on the
 evening when the religious procession was held. There was nothing abnormal in allowing the
child to run along a few paces in advance of the mother. No one could foresee the coincidence of
an automobile appearing and of a frightened child running and falling into a ditch filled with hot
water. The doctrine announced in the much debated case of Rakes vs. Atlantic Gulf and Pacific
Co. ([1907]), 7 Phil., 359), still rule. Article 1902 of the Civil Code must again be enforced. The
contributory negligence of the child and her mother, if any, does not operate as a bar to recovery,
but in its strictest sense could only result in reduction of the damages.

It is most significant that in the case just cited, this Court specifically applied article 1902 of the Civil
Code. It is thus that although J. V. House could have been criminally prosecuted for reckless or simple
negligence and not only punished but also made civilly liable because of his criminal negligence,
nevertheless this Court awarded damages in an independent civil action for fault or negligence under
article 1902 of the Civil Code.

In Bahia vs. Litonjua and Leynes (30 Phil., 624 [year 1915), the action was for damages for the death of
the plaintiff's daughter alleged to have been caused by the negligence of the servant in driving an
automobile over the child. It appeared that the cause of the mishap was a defect in the steering gear. The
defendant Leynes had rented the automobile from the International Garage of Manila, to be used by him
in carrying passengers during the fiesta of Tuy, Batangas. Leynes was ordered by the lower court to pay
P1,000 as damages to the plaintiff. On appeal this Court reversed the judgment as to Leynes on the
ground that he had shown that the exercised the care of a good father of a family, thus overcoming the
presumption of negligence under article 1903. This Court said:

As to selection, the defendant has clearly shown that he exercised the care and diligence of a
good father of a family. He obtained the machine from a reputable garage and it was, so far as
appeared, in good condition. The workmen were likewise selected from a standard garage, were
duly licensed by the Government in their particular calling, and apparently thoroughly
competent. The machine had been used but a few hours when the accident occurred and it is
clear from the evidence that the defendant had no notice, either actual or constructive, of the
defective condition of the steering gear.

The legal aspect of the case was discussed by this Court thus:

Article 1903 of the Civil Code not only establishes liability in cases of negligence, but also
provides when the liability shall cease. It says:

"The liability referred to in this article shall cease when the persons mentioned therein
prove that they employed all the diligence of a good father of a family to avoid the
damage."

From this article two things are apparent: (1) That when an injury is caused by the negligence of
a servant or employee there instantly arises a presumption of law that there was negligence on
the part of the matter or employer either in the selection of the servant or employee, or in
supervision over him after the selection, or both; and (2) that presumption is juris tantum and not
juris et de jure, and consequently, may be rebutted. It follows necessarily that if the employer
shows to the satisfaction of the court that in selection and supervision he has exercised the care
and diligence of a good father of a family, the presumption is overcome and he is relieve from
liability.
 This theory bases the responsibility of the master ultimately on his own negligence and not on
that of his servant.

The doctrine of the case just cited was followed by this Court in Cerf vs. Medel (33 Phil., 37 [year
1915]). In the latter case, the complaint alleged that the defendant's servant had so negligently driven an
automobile, which was operated by defendant as a public vehicle, that said automobile struck and
damaged the plaintiff's motorcycle. This Court, applying article 1903 and following the rule in Bahia vs.
Litonjua and Leynes, said in part (p. 41) that:

The master is liable for the negligent acts of his servant where he is the owner or director of a
business or enterprise and the negligent acts are committed while the servant is engaged in his
master's employment as such owner.

Another case which followed the decision in Bahia vs. Litonjua and Leynes was Cuison vs. Norton &
Harrison Co., 55 Phil., 18 (year 1930). The latter case was an action for damages brought by Cuison for
the death of his seven-year-old son Moises. The little boy was on his way to school with his sister
Marciana. Some large pieces of lumber fell from a truck and pinned the boy underneath, instantly killing
him. Two youths, Telesforo Binoya and Francisco Bautista, who were working for Ora, an employee of
defendant Norton & Harrison Co., pleaded guilty to the crime of homicide through reckless negligence
and were sentenced accordingly. This Court, applying articles 1902 and 1903, held:

The basis of civil law liability is not respondent superior but the relationship of pater familias.
This theory bases the liability of the master ultimately on his own negligence and not on that of
his servant. (Bahia vs. Litonjua and Leynes [1915], 30 Phil., 624; Cangco vs. Manila Railroad
Co. [1918], 38 Phil., 768.)

In Walter A. Smith & Co. vs. Cadwallader Gibson Lumber Co., 55 Phil., 517 (year 1930) the plaintiff
brought an action for damages for the demolition of its wharf, which had been struck by the steamer
Helen C belonging to the defendant. This Court held (p. 526):

The evidence shows that Captain Lasa at the time the plaintiff's wharf collapsed was a duly
licensed captain, authorized to navigate and direct a vessel of any tonnage, and that the appellee
contracted his services because of his reputation as a captain, according to F. C. Cadwallader.
This being so, we are of the opinion that the presumption of liability against the defendant has
been overcome by the exercise of the care and diligence of a good father of a family in selecting
Captain Lasa, in accordance with the doctrines laid down by this court in the cases cited above,
and the defendant is therefore absolved from all liability.

It is, therefore, seen that the defendant's theory about his secondary liability is negatived by the six cases
above set forth. He is, on the authority of these cases, primarily and directly responsible in damages
under article 1903, in relation to article 1902, of the Civil Code.

Let us now take up the Philippine decisions relied upon by the defendant. We study first, City of Manila
vs. Manila Electric Co., 52 Phil., 586 (year 1928). A collision between a truck of the City of Manila and
a street car of the Manila Electric Co. took place on June 8, 1925. The truck was damaged in the amount
of P1,788.27. Sixto Eustaquio, the motorman, was prosecuted for the crime of damage to property and
slight injuries through reckless imprudence. He was found guilty and sentenced to pay a fine of P900, to
indemnify the City of Manila for P1,788.27, with subsidiary imprisonment in case of insolvency. Unable
to collect the indemnity from Eustaquio, the City of Manila filed an action against the Manila Electric
Company to obtain payment, claiming that the defendant was subsidiarily liable. The main defense was
that the defendant had exercised the diligence of a good father of a family to prevent the damage. The
lower court rendered judgment in favor of the plaintiff. This Court held, in part, that this case was
governed by the Penal Code, saying:

With this preliminary point out of the way, there is no escaping the conclusion that the
provisions of the Penal Code govern. The Penal Code in easily understandable language
authorizes the determination of subsidiary liability. The Civil Code negatives its application by
providing that civil obligations arising from crimes or misdemeanors shall be governed by the
provisions of the Penal Code. The conviction of the motorman was a misdemeanor falling under
article 604 of the Penal Code. The act of the motorman was not a wrongful or negligent act or
omission not punishable by law. Accordingly, the civil obligation connected up with the Penal
Code and not with article 1903 of the Civil Code. In other words, the Penal Code affirms its
jurisdiction while the Civil Code negatives its jurisdiction. This is a case of criminal negligence
out of which civil liability arises and not a case of civil negligence.

xxx xxx xxx

Our deduction, therefore, is that the case relates to the Penal Code and not to the Civil Code.
Indeed, as pointed out by the trial judge, any different ruling would permit the master to escape
scot-free by simply alleging and proving that the master had exercised all diligence in the
selection and training of its servants to prevent the damage. That would be a good defense to a
strictly civil action, but might or might not be to a civil action either as a part of or predicated on
conviction for a crime or misdemeanor. (By way of parenthesis, it may be said further that the
statements here made are offered to meet the argument advanced during our deliberations to the
effect that article 0902 of the Civil Code should be disregarded and codal articles 1093 and 1903
applied.)

It is not clear how the above case could support the defendant's proposition, because the Court of
Appeals based its decision in the present case on the defendant's primary responsibility under article
1903 of the Civil Code and not on his subsidiary liability arising from Fontanilla's criminal negligence.
In other words, the case of City of Manila vs. Manila Electric Co., supra, is predicated on an entirely
different theory, which is the subsidiary liability of an employer arising from a criminal act of his
employee, whereas the foundation of the decision of the Court of Appeals in the present case is the
employer's primary liability under article 1903 of the Civil Code. We have already seen that this is a
proper and independent remedy.

Arambulo vs. Manila Electric Co. (55 Phil., 75), is another case invoked by the defendant. A motorman
in the employ of the Manila Electric Company had been convicted o homicide by simple negligence and
sentenced, among other things, to pay the heirs of the deceased the sum of P1,000. An action was then
brought to enforce the subsidiary liability of the defendant as employer under the Penal Code. The
defendant attempted to show that it had exercised the diligence of a good father of a family in selecting
the motorman, and therefore claimed exemption from civil liability. But this Court held:

In view of the foregoing considerations, we are of opinion and so hold, (1) that the exemption
from civil liability established in article 1903 of the Civil Code for all who have acted with the
diligence of a good father of a family, is not applicable to the subsidiary civil liability provided
in article 20 of the Penal Code.
The above case is also extraneous to the theory of the defendant in the instant case, because the action
there had for its purpose the enforcement of the defendant's subsidiary liability under the Penal Code,
while in the case at bar, the plaintiff's cause of action is based on the defendant's primary and direct
responsibility under article 1903 of the Civil Code. In fact, the above case destroys the defendant's
contention because that decision illustrates the principle that the employer's primary responsibility under
article 1903 of the Civil Code is different in character from his subsidiary liability under the Penal Code.

In trying to apply the two cases just referred to, counsel for the defendant has failed to recognize the
distinction between civil liability arising from a crime, which is governed by the Penal Code, and the
responsibility for cuasi-delito or culpa aquiliana under the Civil Code, and has likewise failed to give
the importance to the latter type of civil action.

The defendant-petitioner also cites Francisco vs. Onrubia (46 Phil., 327). That case need not be set
forth. Suffice it to say that the question involved was also civil liability arising from a crime. Hence, it is
as inapplicable as the two cases above discussed.

The foregoing authorities clearly demonstrate the separate individuality of cuasi-delitos or culpa
aquiliana under the Civil Code. Specifically they show that there is a distinction between civil liability
arising from criminal negligence (governed by the Penal Code) and responsibility for fault or negligence
under articles 1902 to 1910 of the Civil Code, and that the same negligent act may produce either a civil
liability arising from a crime under the Penal Code, or a separate responsibility for fault or negligence
under articles 1902 to 1910 of the Civil Code. Still more concretely, the authorities above cited render it
inescapable to conclude that the employer — in this case the defendant-petitioner — is primarily and
directly liable under article 1903 of the Civil Code.

The legal provisions, authors, and cases already invoked should ordinarily be sufficient to dispose of this
case. But inasmuch as we are announcing doctrines that have been little understood in the past, it might
not be inappropriate to indicate their foundations.

Firstly, the Revised Penal Code in article 365 punishes not only reckless but also simple negligence. If
we were to hold that articles 1902 to 1910 of the Civil Code refer only to fault or negligence not
punished by law, according to the literal import of article 1093 of the Civil Code, the legal institution of
culpa aquiliana would have very little scope and application in actual life. Death or injury to persons and
damage to property through any degree of negligence — even the slightest — would have to be
indemnified only through the principle of civil liability arising from a crime. In such a state of affairs,
what sphere would remain for cuasi-delito or culpa aquiliana? We are loath to impute to the lawmaker
any intention to bring about a situation so absurd and anomalous. Nor are we, in the interpretation of the
laws, disposed to uphold the letter that killeth rather than the spirit that giveth life. We will not use the
literal meaning of the law to smother and render almost lifeless a principle of such ancient origin and
such full-grown development as culpa aquiliana or cuasi-delito, which is conserved and made enduring
in articles 1902 to 1910 of the Spanish Civil Code.

Secondly, to find the accused guilty in a criminal case, proof of guilt beyond reasonable doubt is
required, while in a civil case, preponderance of evidence is sufficient to make the defendant pay in
damages. There are numerous cases of criminal negligence which can not be shown beyond reasonable
doubt, but can be proved by a preponderance of evidence. In such cases, the defendant can and should
be made responsible in a civil action under articles 1902 to 1910 of the Civil Code. Otherwise, there
would be many instances of unvindicated civil wrongs. Ubi jus ibi remedium.
Thirdly, to hold that there is only one way to make defendant's liability effective, and that is, to sue the
driver and exhaust his (the latter's) property first, would be tantamount to compelling the plaintiff to
follow a devious and cumbersome method of obtaining relief. True, there is such a remedy under our
laws, but there is also a more expeditious way, which is based on the primary and direct responsibility of
the defendant under article 1903 of the Civil Code. Our view of the law is more likely to facilitate
remedy for civil wrongs, because the procedure indicated by the defendant is wasteful and productive of
delay, it being a matter of common knowledge that professional drivers of taxis and similar public
conveyance usually do not have sufficient means with which to pay damages. Why, then, should the
plaintiff be required in all cases to go through this roundabout, unnecessary, and probably useless
procedure? In construing the laws, courts have endeavored to shorten and facilitate the pathways of right
and justice.

At this juncture, it should be said that the primary and direct responsibility of employers and their
presumed negligence are principles calculated to protect society. Workmen and employees should be
carefully chosen and supervised in order to avoid injury to the public. It is the masters or employers who
principally reap the profits resulting from the services of these servants and employees. It is but right
that they should guarantee the latter's careful conduct for the personnel and patrimonial safety of others.
As Theilhard has said, "they should reproach themselves, at least, some for their weakness, others for
their poor selection and all for their negligence." And according to Manresa, "It is much more equitable
and just that such responsibility should fall upon the principal or director who could have chosen a
careful and prudent employee, and not upon the injured person who could not exercise such selection
and who used such employee because of his confidence in the principal or director." (Vol. 12, p. 622,
2nd Ed.) Many jurists also base this primary responsibility of the employer on the principle of
representation of the principal by the agent. Thus, Oyuelos says in the work already cited (Vol. 7, p.
747) that before third persons the employer and employee "vienen a ser como una sola personalidad, por
refundicion de la del dependiente en la de quien le emplea y utiliza." ("become as one personality by the
merging of the person of the employee in that of him who employs and utilizes him.") All these
observations acquire a peculiar force and significance when it comes to motor accidents, and there is
need of stressing and accentuating the responsibility of owners of motor vehicles.

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

In view of the foregoing, the judgment of the Court of Appeals should be and is hereby affirmed, with
costs against the defendant-petitioner.
G.R. No. L-32599 June 29, 1979
EDGARDO E. MENDOZA, petitioner
vs.
HON. ABUNDIO Z. ARRIETA, Presiding Judge of Branch VIII, Court of First Instance of Manila, FELINO TIMBOL,
and RODOLFO SALAZAR, respondents.
David G. Nitafan for petitioner.
Arsenio R. Reyes for respondent Timbol.
Armando M. Pulgado for respondent Salazar.
Res Judicata; Judgment; Requisites of the rule of prior judgment as a bar to a subsequent case.—Well-settled is
the rule that for a prior judgment to constitute a bar to a subsequent case, the following requisites must concur:
(1) it must be a final judgment; (2) it must have been rendered by a Court having jurisdiction over the subject
matter and over the parties; (3) it must be a judgment on the merits; and (4) there must be, between the first
and second actions, identity of parties, identity of subject matter and identity of cause of action.

Same; Action; Quasi-delict; Damages; The owner of a car which was bumped by a jeep after the latter was
bumped from behind by a truck may still file a civil action for damages against the truck driver and its owner
even after the truck driver was adjudged guilty in the criminal case filed by the jeepney driver against said truck
driver and the jeepney driver, in the case filed by the car owner was acquitted in the criminal case for negligence
filed by the car owner against the jeepney driver. Reason: There is no identity of cause of action between the civil
case in question and the criminal case against the truck driver for damage to the jeep.—It is conceded that the
first three requisites of res judicata are present. However, we agree with petitioner that there is no identity of
case of action between Criminal Case No. SM-227 and Civil Case No. 80803. Obvious is the fact that in said
criminal case truck driver Montoya was not prosecuted for damage to petitioner’s car but for damage to the
jeep. Neither was truck-owner Timbol a party in said case. In fact as the trial Court had put it “the owner of the
Mercedes Benz cannot recover any damages from the accused Freddie Montoya, he (Mendoza) being a
complainant only against Rodolfo Salazar in Criminal Case No. SM-228”. And more importantly, in the criminal
cases, the cause of action was the enforcement of the civil liability arising from criminal negligence under Article
100 of the Revised Penal Code, whereas Civil Case No. 80803 is based on quasi-delict under Article 2180, in
relation to Article 2176 of the Civil Code. Mendoza vs. Arrieta, 91 SCRA 113, No. L-32599 June 29, 1979
Same; Same; Failure to make a reservation in the criminal action for negligence of the right to file an
independent civil action does not bar the filing of the latter. Rule 111 of the Rules of Court cannot amend the
substantive provision of Art. 31 of the Civil Code on quasidelict.—Interpreting the above provision, this Court, in
Garcia vs. Florido, said: “As we have stated at the outset, the same negligent act causing damages may produce
a civil liability arising from crime or create an action for quasi-delict or culpa extra-contractual. The former is a
violation of the criminal law, while the latter is a distinct and independent negligence, having always had its own
foundation and individuality. Some legal writers are of the view that in accordance with Article 31, the Civil
Action based upon quasi-delict may proceed independently of the criminal proceeding for criminal negligence
and regardless of the result of the latter. Hence, ‘the proviso in Section 2 of Rule 111 with reference to x x x
Articles 32, 33 and 34 of the Civil Code is contrary to the letter and spirit of the said articles, for these articles
were drafted x x x and are intended to constitute as exceptions to the general rule stated in what is now Section
1 of Rule 111. The proviso, which is procedural, may also be regarded as an unauthorized amendment of
substantive law, Articles 32, 33 and 34 of the Civil Code, which do not provide for the reservation required in the
proviso.’ x x x”.

Same; Same; Articles 2176 and 2177 of the Civil Code creates a civil liability distinct from the civil action arising
from the offense of negligence under the Revised Penal Code. No reservation need be made in the criminal
case.—In his concurring opinion in the above case, Mr. Justice Antonio Barredo further observed that inasmuch
articles for these articles were drafted x x x and are intended to conas Articles 2176 and 2177 of the Civil Code
create a civil liability distinct and different from the Civil Action arising from the offense of negligence under the
Revised Penal Code, no reservation, therefore, need be made in the criminal case; that Section 2 of Rule 111 is
inoperative, “it being substantive in character and is not within the power of the Supreme Court to promulgate;
and even if it were not substantive but adjective, it cannot stand because of its inconsistency with Article 2177,
an enactment of the legislature superseding the Rules of 1940.”

Same; Same; Where the owner of a car hit by a jeep actively intervened in the prosecution of the criminal case
against the jeepney driver-owner, an independent civil action will no longer lie after the latter’s acquittal where it
is clear from the judgment that the fact from which the civil might arise did not exist.—The circumstances at-
Mendoza vs. Arrieta, 91 SCRA 113, No. L-32599 June 29, 1979
tendant to the criminal case yields the conclusion that petitioner had opted to base his cause of action against
jeep-owner-driver Salazar on culpa criminal and not on culpa aquiliana, as evidenced by his active participation
and intervention in the prosecution of the criminal suit against said Salazar. The latter’s civil liability continued to
be involved in the criminal action until its termination. Such being the case, there was no need for petitioner to
have reserved his right to file a separate civil action as his action for civil liability was deemed impliedly instituted
in Criminal Case No. SM-228.

Same; Same; Same.—Crystal clear is the trial court’s pronouncement that under the facts of the case, jeep-
owner-driver Salazar cannot be held liable for the damages sustained by petitioner’s car. In other words, “the
fact from which the civil might arise did not exist.” Accordingly, inasmuch as petitioner’s cause of action as
against jeep-owner-driver Salazar is ex-delictu, founded on Article 100 of the Revised Penal Code, the civil action
must be held to have been extinguished in consonance with Section 3(c), Rule 111 of the Rules of Court.

Same; Same; Same.—And even if petitioner’s cause of action as against jeep-owner-driver Salazar were not ex-
delictu, the end result would be the same, it being clear from the judgment in the criminal case that Salazar’s
acquittal was not based upon reasonable doubt, consequently, a civil action for damages can no longer be
instituted. This is explicitly provided for in Article 29 of the Civil Code.

PETITION for review on certiorari of the orders of the Court of First Instance of Manila.

The facts are stated in the opinion of the Court.

David G. Nitafan for petitioner.

Arsenio R. Reyes for respondent Timbol.

Armando M. Pulgado for respondent Salazar Mendoza vs. Arrieta, 91 SCRA 113, No. L-32599 June 29, 1979

MELENCIO-HERRERA, J:
Petitioner, Edgardo Mendoza, seeks a review on certiorari of the Orders of respondent Judge in Civil Case No.
80803 dismissing his Complaint for Damages based on quasi-delict against respondents Felino Timbol and
Rodolfo Salazar.
The facts which spawned the present controversy may be summarized as follows:
On October 22, 1969, at about 4:00 o'clock in the afternoon, a three- way vehicular accident occurred along
Mac-Arthur Highway, Marilao, Bulacan, involving a Mercedes Benz owned and driven by petitioner; a private
jeep owned and driven by respondent Rodolfo Salazar; and a gravel and sand truck owned by respondent
Felipino Timbol and driven by Freddie Montoya. As a consequence of said mishap, two separate Informations for
Reckless Imprudence Causing Damage to Property were filed against Rodolfo Salazar and Freddie Montoya with
the Court of First Instance of Bulacan. The race against truck-driver Montoya, docketed as Criminal Case No. SM-
227, was for causing damage to the jeep owned by Salazar, in the amount of Pl,604.00, by hitting it at the right
rear portion thereby causing said jeep to hit and bump an oncoming car, which happened to be petitioner's
Mercedes Benz. The case against jeep-owner-driver Salazar, docketed as Criminal Case No. SM 228, was for
causing damage to the Mercedes Benz of petitioner in the amount of P8,890.00
At the joint trial of the above cases, petitioner testified that jeep-owner- driver Salazar overtook the truck driven
by Montoya, swerved to the left going towards the poblacion of Marilao, and hit his car which was bound for
Manila. Petitioner further testified that before the impact, Salazar had jumped from the jeep and that he was
not aware that Salazar's jeep was bumped from behind by the truck driven by Montoya. Petitioner's version of
the accident was adopted by truck driver Montoya. Jeep-owner-driver Salazar, on the other hand, tried to show
that, after overtaking the truck driven by Montoya, he flashed a signal indicating his intention to turn left
towards the poblacion of Marilao but was stopped at the intersection by a policeman who was directing traffic;
that while he was at a stop position, his jeep was bumped at the rear by the truck driven by Montova causing
him to be thrown out of the jeep, which then swerved to the left and hit petitioner's car, which was coming from
the opposite direction.
On July 31, 1970, the Court of First Instance of Bulacan, Branch V, Sta. Maria, rendered judgment, stating in its
decretal portion:
IN VIEW OF THE FOREGOING, this Court finds the accused Freddie Montoya GUILTY beyond reasonable doubt of
the crime of damage to property thru reckless imprudence in Crime. Case No. SM-227, and hereby sentences
him to pay a fine of P972.50 and to indemnify Rodolfo Salazar in the same amount of P972.50 as actual
damages, with subsidiary imprisonment in case of insolvency, both as to fine and indemnity, with costs.
Accused Rodolfo Salazar is hereby ACQUITTED from the offense charged in Crime. Case No. SM-228, with costs
de oficio, and his bond is ordered canceled
SO ORDERED. 1
Thus, the trial Court absolved jeep-owner-driver Salazar of any liability, civil and criminal, in view of its findings
that the collision between Salazar's jeep and petitioner's car was the result of the former having been bumped
from behind by the truck driven by Montoya. Neither was petitioner awarded damages as he was not a
complainant against truck-driver Montoya but only against jeep-owner-driver Salazar.
On August 22, 1970, or after the termination of the criminal cases, petitioner filed Civil Case No. 80803 with the
Court of First Instance of Manila against respondents jeep-owner-driver Salazar and Felino Timbol, the latter
being the owner of the gravel and sand truck driven by Montoya, for indentification for the damages sustained
by his car as a result of the collision involving their vehicles. Jeep-owner-driver Salazar and truck-owner Timbol
were joined as defendants, either in the alternative or in solidum allegedly for the reason that petitioner was
uncertain as to whether he was entitled to relief against both on only one of them.
On September 9, 1970, truck-owner Timbol filed a Motion to Dismiss Civil Case No. 80803 on the grounds that
the Complaint is barred by a prior judgment in the criminal cases and that it fails to state a cause of action. An
Opposition thereto was filed by petitioner.
In an Order dated September 12, 1970, respondent Judge dismissed the Complaint against truck-owner Timbol
for reasons stated in the afore- mentioned Motion to Dismiss On September 30, 1970, petitioner sought before
this Court the review of that dismissal, to which petition we gave due course.
On January 30, 1971, upon motion of jeep-owner-driver Salazar, respondent Judge also dismissed the case as
against the former. Respondent Judge reasoned out that "while it is true that an independent civil action for
liability under Article 2177 of the Civil Code could be prosecuted independently of the criminal action for the
offense from which it arose, the New Rules of Court, which took effect on January 1, 1964, requires an express
reservation of the civil action to be made in the criminal action; otherwise, the same would be barred pursuant
to Section 2, Rule 111 ... 2 Petitioner's Motion for Reconsideration thereof was denied in the order dated
February 23, 1971, with respondent Judge suggesting that the issue be raised to a higher Court "for a more
decisive interpretation of the rule. 3
On March 25, 1971, petitioner then filed a Supplemental Petition before us, also to review the last two
mentioned Orders, to which we required jeep-owner-driver Salazar to file an Answer.
The Complaint against
truck-owner Timbol
We shall first discuss the validity of the Order, dated September 12, 1970, dismissing petitioner's Complaint
against truck-owner Timbol.
In dismissing the Complaint against the truck-owner, respondent Judge sustained Timbol's allegations that the
civil suit is barred by the prior joint judgment in Criminal Cases Nos. SM-227 and SM-228, wherein no
reservation to file a separate civil case was made by petitioner and where the latter actively participated in the
trial and tried to prove damages against jeep-driver-Salazar only; and that the Complaint does not state a cause
of action against truck-owner Timbol inasmuch as petitioner prosecuted jeep-owner-driver Salazar as the one
solely responsible for the damage suffered by his car.
Well-settled is the rule that for a prior judgment to constitute a bar to a subsequent case, the following
requisites must concur: (1) it must be a final judgment; (2) it must have been rendered by a Court having
jurisdiction over the subject matter and over the parties; (3) it must be a judgment on the merits; and (4) there
must be, between the first and second actions, Identity of parties, Identity of subject matter and Identity of
cause of action.
It is conceded that the first three requisites of res judicata are present. However, we agree with petitioner that
there is no Identity of cause of action between Criminal Case No. SM-227 and Civil Case No. 80803. Obvious is
the fact that in said criminal case truck-driver Montoya was not prosecuted for damage to petitioner's car but
for damage to the jeep. Neither was truck-owner Timbol a party in said case. In fact as the trial Court had put it
"the owner of the Mercedes Benz cannot recover any damages from the accused Freddie Montoya, he
(Mendoza) being a complainant only against Rodolfo Salazar in Criminal Case No. SM-228. 4 And more
importantly, in the criminal cases, the cause of action was the enforcement of the civil liability arising from
criminal negligence under Article l of the Revised Penal Code, whereas Civil Case No. 80803 is based on quasi-
delict under Article 2180, in relation to Article 2176 of the Civil Code As held in Barredo vs. Garcia, et al. 5
The foregoing authorities clearly demonstrate the separate in. individuality of cuasi-delitos or culpa aquiliana
under the Civil Code. Specifically they show that there is a distinction between civil liability arising from criminal
negligence (governed by the Penal Code) and responsibility for fault or negligence under articles 1902 to 1910 of
the Civil Code, and that the same negligent act may produce either a civil liability arising from a crime under the
Penal Code, or a separate responsibility for fault or negligence under articles 1902 to 1910 of the Civil Code. Still
more concretely, the authorities above cited render it inescapable to conclude that the employer in this case the
defendant- petitioner is primarily and directly liable under article 1903 of the Civil Code.
That petitioner's cause of action against Timbol in the civil case is based on quasi-delict is evident from the
recitals in the complaint to wit: that while petitioner was driving his car along MacArthur Highway at Marilao,
Bulacan, a jeep owned and driven by Salazar suddenly swerved to his (petitioner's) lane and collided with his car
That the sudden swerving of Salazar's jeep was caused either by the negligence and lack of skill of Freddie
Montoya, Timbol's employee, who was then driving a gravel and sand truck iii the same direction as Salazar's
jeep; and that as a consequence of the collision, petitioner's car suffered extensive damage amounting to
P12,248.20 and that he likewise incurred actual and moral damages, litigation expenses and attorney's fees.
Clearly, therefore, the two factors that a cause of action must consist of, namely: (1) plaintiff's primary right, i.e.,
that he is the owner of a Mercedes Benz, and (2) defendant's delict or wrongful act or omission which violated
plaintiff's primary right, i.e., the negligence or lack of skill either of jeep-owner Salazar or of Timbol's employee,
Montoya, in driving the truck, causing Salazar's jeep to swerve and collide with petitioner's car, were alleged in
the Complaint. 6
Consequently, petitioner's cause of action being based on quasi-delict, respondent Judge committed reversible
error when he dismissed the civil suit against the truck-owner, as said case may proceed independently of the
criminal proceedings and regardless of the result of the latter.
Art. 31. When the civil action is based on an obligation not arising from the act or omission complained of as a
felony, such civil action may proceed independently of the criminal proceedings and regardless of the result of
the latter.
But it is truck-owner Timbol's submission (as well as that of jeep-owner-driver Salazar) that petitioner's failure to
make a reservation in the criminal action of his right to file an independent civil action bars the institution of
such separate civil action, invoking section 2, Rule 111, Rules of Court, which says:
Section 2. — Independent civil action. — In the cases provided for in Articles 31, 32, 33, 34 and 2177 of the Civil
Code of the Philippines, an independent civil action entirely separate and distinct from the criminal action may
be brought by the injured party during the pendency of the criminal case, provided the right is reserved as
required in the preceding section. Such civil action shau proceed independently of the criminal prosecution, and
shall require only a preponderance of evidence.
Interpreting the above provision, this Court, in Garcia vs. Florida 7 said:
As we have stated at the outset, the same negligent act causing damages may produce a civil liability arising
from crime or create an action for quasi-delict or culpa extra-contractual. The former is a violation of the
criminal law, while the latter is a distinct and independent negligence, having always had its own foundation and
individuality. Some legal writers are of the view that in accordance with Article 31, the civil action based upon
quasi-delict may proceed independently of the criminal proceeding for criminal negligence and regardless of the
result of the latter. Hence, 'the proviso in Section 2 of Rule 111 with reference to ... Articles 32, 33 and 34 of the
Civil Code is contrary to the letter and spirit of the said articles, for these articles were drafted ... and are
intended to constitute as exceptions to the general rule stated in what is now Section 1 of Rule 111. The proviso,
which is procedural, may also be regarded as an unauthorized amendment of substantive law, Articles 32, 33
and 34 of the Civil Code, which do not provide for the reservation required in the proviso ... .
In his concurring opinion in the above case, Mr. Justice Antonio Barredo further observed that inasmuch as
Articles 2176 and 2177 of the Civil Code create a civil liability distinct and different from the civil action arising
from the offense of negligence under the Revised Penal Code, no reservation, therefore, need be made in the
criminal case; that Section 2 of Rule 111 is inoperative, "it being substantive in character and is not within the
power of the Supreme Court to promulgate; and even if it were not substantive but adjective, it cannot stand
because of its inconsistency with Article 2177, an enactment of the legislature superseding the Rules of 1940."
We declare, therefore, that in so far as truck-owner Timbol is concerned, Civil Case No. 80803 is not barred by
the fact that petitioner failed to reserve, in the criminal action, his right to file an independent civil action based
on quasi-delict.
The suit against
jeep-owner-driver Salazar
The case as against jeep-owner-driver Salazar, who was acquitted in Criminal Case No. SM-228, presents a
different picture altogether.
At the outset it should be clarified that inasmuch as civil liability co-exists with criminal responsibility in
negligence cases, the offended party has the option between an action for enforcement of civil liability based on
culpa criminal under Article 100 of the Revised Penal Code, and an action for recovery of damages based on
culpa aquiliana under Article 2177 of the Civil Code. The action for enforcement of civil liability based on culpa
criminal under section 1 of Rule 111 of the Rules of Court is deemed simultaneously instituted with the criminal
action, unless expressly waived or reserved for separate application by the offended party. 8
The circumstances attendant to the criminal case yields the conclusion that petitioner had opted to base his
cause of action against jeep-owner-driver Salazar on culpa criminal and not on culpa aquiliana as evidenced by
his active participation and intervention in the prosecution of the criminal suit against said Salazar. The latter's
civil liability continued to be involved in the criminal action until its termination. Such being the case, there was
no need for petitioner to have reserved his right to file a separate civil action as his action for civil liability was
deemed impliedly instituted in Criminal Case No. SM-228.
Neither would an independent civil action he. Noteworthy is the basis of the acquittal of jeep-owner-driver
Salazar in the criminal case, expounded by the trial Court in this wise:
In view of what has been proven and established during the trial, accused Freddie Montoya would be held able
for having bumped and hit the rear portion of the jeep driven by the accused Rodolfo Salazar,
Considering that the collision between the jeep driven by Rodolfo Salazar and the car owned and driven by
Edgardo Mendoza was the result of the hitting on the rear of the jeep by the truck driven by Freddie Montoya,
this Court behaves that accused Rodolfo Salazar cannot be held able for the damages sustained by Edgardo
Mendoza's car. 9
Crystal clear is the trial Court's pronouncement that under the facts of the case, jeep-owner-driver Salazar
cannot be held liable for the damages sustained by petitioner's car. In other words, "the fact from which the civil
might arise did not exist. " Accordingly, inasmuch as petitioner's cause of action as against jeep-owner-driver
Salazar is ex- delictu, founded on Article 100 of the Revised Penal Code, the civil action must be held to have
been extinguished in consonance with Section 3(c), Rule 111 of the Rules of Court 10 which provides:
Sec. 3. Other civil actions arising from offenses. — In all cases not included in the preceding section the following
rules shall be observed:
xxx xxx xxx
c) Extinction of the penal action does not carry with it extinction of the civil, unless the extinction proceeds from
a declaration in a final judgment that the fact from which the civil night arise did not exist. ...
And even if petitioner's cause of action as against jeep-owner-driver Salazar were not ex-delictu, the end result
would be the same, it being clear from the judgment in the criminal case that Salazar's acquittal was not based
upon reasonable doubt, consequently, a civil action for damages can no longer be instituted. This is explicitly
provided for in Article 29 of the Civil Code quoted here under:
Art. 29. When the accused in a criminal prosecution is acquitted on the ground that his guilt has not been
proved beyond reasonable doubt, a civil action for damages for the same act or omission may be instituted.
Such action requires only a preponderance of evidence ...
If in a criminal case the judgment of acquittal is based upon reasonable doubt, the court shall so declare. In the
absence of any declaration to that effect, it may be inferred from the text of the decision whether or not the
acquittal is due to that ground.
In so far as the suit against jeep-owner-driver Salazar is concerned, therefore, we sustain respondent Judge's
Order dated January 30, 1971 dismissing the complaint, albeit on different grounds.
WHEREFORE, 1) the Order dated September 12, 1970 dismissing Civil Case No. 80803 against private respondent
Felino Timbol is set aside, and respondent Judge, or his successor, hereby ordered to proceed with the hearing
on the merits; 2) but the Orders dated January 30, 1971 and February 23, 1971 dismissing the Complaint in Civil
Case No. 80803 against respondent Rodolfo Salazar are hereby upheld.
No costs.
SO ORDERED.

[No. 23769. September 16, 1925]

SONG Fo & COMPANY, plaintiff and appellee, vs. HAWAIIAN PHILIPPINE Co., defendant and appellant.

1. CONTRACTS; SALES; INSTANT CASE.—The written contract examined and found to provide for the delivery by the
Hawaiian-Philippine Co. to Song Fo & Company of 300,000 gallons of molasses.

2. ID. ; ID. ; ID. ; PAYMENT.— The terms of payment fixed by the parties are controlling. The time of payment
stipulated for in the contract should be treated as of the essence of the contract.

3. ID.; ID.; ID.; ID.; RESCISSION.— The general rule is that rescission will not be permitted for a slight or casual
breach of the contract, but only for such breaches as are so substantial and fundamental as to defeat the object of
the parties in making the agreement.

4. ID.; ID.; ID.; ID.; ID.— A delay in payment for a small quantity of molasses for some twenty days is not such a
violation of an essential condition of the contract as warrants rescission for non-performance.

5. ID. ; ID. ; ID.; MEASURE OF DAMAGES FOR BREACH OF CONTRACT.— The facts examined and Song Fo & Company
allowed P3,000 on account of the greater expense to which it was put in being compelled to secure molasses in the
open market.

6. ID.; ID.; ID.; ID.—The facts examined and Song Fo & Company allowed nothing for lost' profits on account of the
breach of the contract, because of failure of proof.
APPEAL from a judgment of the Court of First Instance of Iloilo. Santamaria, J.

The facts are stated in the opinion of the court.

Hilado & Hilado, Ross, Lawrence & Selph and Antonio T. Carrascoso, jr., for appellant.

Arroyo, Gurrea & Muller for appellee.

MALCOLM, J.:

In the Court of First Instance of Iloilo, Song Fo & Company, plaintiff, presented a complaint with two causes of

PHILIPPINE REPORTS ANNOTATED

Song Fo & Co. vs. Hawaiian-Philippine Co.

action for breach of contract against the Hawaiian-Philippine Co., defendant, in which judgment was asked for
P70,369.50, with legal interest, and costs. In an amended answer and cross-complaint, the defendant set up the
special defense that since the plaintiff had defaulted in the payment for the molasses delivered to it by the defendant
under the contract between the parties, the latter was compelled to cancel and rescind the said contract. The case
was submitted for decision on a stipulation of facts and the exhibits therein mentioned. The judgment of the trial
court condemned the defendant to pay to the plaintiff a total of P35,317.93, with legal interest from the date of the
presentation of the complaint, and with costs.

From the judgment of the Court of First Instance the defendant only has appealed. In this court it has made the
following assignment of errors: "I. The lower court erred in finding that the appellant had agreed to sell to the
appellee 400,000, and not only 300,000, gallons of molasses. II. The lower court erred in finding that the appellant
rescinded without sufficient cause the contract for the sale of molasses executed by it and the appellee. III. The lower
court erred in rendering judgment in favor of the appellee and not in favor of the appellant in accordance with the
prayer of its answer and cross-complaint. IV. The lower court erred in denying appellant's motion for a new trial." The
specified errors raise three questions which we will consider in the order suggested by the appellant.

1. Did the defendant agree to sell to the plaintiff 400,000 gallons of molasses or 300,000 gallons of molasses? The trial
court found the former amount to be correct. The appellant contends that the smaller amount was the basis of the
agreement. .

The contract of the parties is in writing. It is found principally in the documents, Exhibits F and G. The first mentioned
exhibit is a letter addressed by the administrator

823

VOL. 47, SEPTEMBER 16, 1925

823

Song Fo & Co. vs. Hawaiian-Philippine Co.

of the Hawaiian-Philippine Co. to Song Fo & Company on December 13, 1922. It reads:

"SILAY, OCC. NEGROS, P. I.

"December 13, 1922.
"Messrs. SONG Fo AND Co.

"Iloilo, Iloilo.

"DEAR SIRS: Confirming our conversation we had today with your Mr. Song Fo, who visited this Central, we wish to
state as follows:

"He agreed to the delivery of 300,000 gallons of molasses at the same price as last year under the same condition,
and the same to start after the completion of our grinding season. He requested if. possible to let you have molasses
during January, February and March or in other words, while we are grinding, and we agreed with him that we would
to the best of our ability, altho we are somewhat handicapped. But we believe we can let you have 25,000 gallons
during each of the milling months, altho it interf ere with the shipping of our own and planters sugars to Iloilo. Mr.
Song Fo also asked if we could supply him with another 100,000 gallons of molasses, and we stated we believe that
this is possible and will do our best to let you have these extra 100,000 gallons during the next year the same to be
taken by you before November 1st, 1923, along with the 300,000, making 400,000 gallons in all.

"Regarding the payment for our molasses, Mr. Song Fo gave us to understand that you would pay us at the end of
each month for molasses delivered to you.

"Hoping that this is satisfactory and awaiting your answer regarding this matter, we remain.

"Yours very truly,

"HAWAIIAN-PHILIPPINE COMPANY

"By: R. C. PlTCAlRN

"Administrator."

824

824

PHILIPPINE REPORTS ANNOTATED

Song Fo & Co. vs. Hawaiian-Philippine Co.

Exhibit G is the answer of the manager of Song Po & Company to the Hawaiian-Philippine Co. on December 16, 1922.
This letter reads:

"December 16th, 1922.

"Messrs. HAWAIIAN-PHILIPPINE Co.,

"Silay, Neg. Occ., P. L

"DEAR SlRS: We are in receipt of your favours dated the 9th and the 13th inst. and understood all their contents.

"In connection to yours of the 13th inst. we regret to hear that you mentioned Mr. Song Fo the one who visited your
Central, but it was not for he was Mr. Song Heng, the representative and the manager of Messrs. Song Fo & Co.
"With reference to the contents of your letter dated the 13th inst. we confirm all the arrangements you have stated
and in order to make the contract clear, we hereby quote below our old contract as amended, as per our new
arrangements.

" (a) Price, at 2 cents per gallon delivered at the central.

"(b) All handling charges and expenses at the central and at the dock at Mambaguid for our account.
"(c) For services of one locomotive and flat cars necessary f or our six tanks at the rate of P48 for the round trip
dock to central and central to dock. This service to be restricted to one trip for the six tanks.

"Yours very truly,

"SONG FO & COMPANY

"By___________________________
"Manager."

We agree with appellant that the above quoted correspondence is susceptible of but one interpretation. The
Hawaiian-Philippine Co. agreed to deliver to Song Fo &

825

VOL. 47, SEPTEMBER 16, 1925

825

Song Fo & Co. vs. Hawaiian-Philippine Co.

Company 300,000 gallons of molasses. The HawaiianPhilippine Co. also believed it possible to accommodate Song Fo
& Company by supplying the latter company with an extra 100,000 gallons. But the language used with reference to
the additional 100,000 gallons was not a definite promise. Still less did it constitute an obligation.

If Exhibit T relied upon by the trial court shows anything, it is simply that the defendant did not consider itself obliged
to deliver to the plaintiff molasses in any amount. On the other hand, Exhibit A, a letter written by the manager of
Song Fo & Company on October 17, 1922, expressly mentions an understanding between the parties of a contract for
300,000 gallons of molasses.

We sustain appellant's point of view on the first question and rule that the contract between the parties provided for
the delivery by the Hawaiian-Philippine Co. to Song Fo & Company of 300,000 gallons of molasses.

2. Had the Hawaiian-Philippine Co. the right to rescind the contract of sale made with Song Fo & Company? The trial
judge answers No, the appellant Yes.

Turning to Exhibit F, we note this sentence: "Regarding the payment for our molasses, Mr. Song Fo (Mr. Song Heng)
gave us to understand that you would pay us at the end of each month for molasses delivered to you." In Exhibit G,
we find Song Fo & Company stating that they understand the contents of Exhibit F, and that they "confirm all the
arrangements you have stated, and in order to make the contract clear, we hereby quote below our old contract as
amended, as per our new arrangements. (a) Price, at 2 cents per gallon delivered at the central." In connection with
the portion of the contract having reference to the payment for the molasses, the parties have agreed on a table
showing the date of delivery of the molasses, the account and date thereof, the date of receipt

826

826
PHILIPPINE REPORTS ANNOTATED

Song Fo & Co. vs. Hawaiian-Philippine Co.

of account by plaintiff, and date of payment. The table mentioned is as follows:

Date of delivery

Account and date thereof

Date of receipt
of account by
plaintiff

Date of pay-
ment

1922

1923

1923

Dec. 18 .................

P206.

16 Dec. 26/22

Jan. 5

Feb. 20

Dec. 29..................................
206.16

Jan. 3/23

...........do.........

Do.

1923

Jan. 5..................................

206.16

Jan. 9/23

Mar. 7 or 8

Mar. 31

Feb 12.................................

206.16

Mar. 12/23

..........do.........

Do.
Feb 27.................................

206.16

.........do........

.........do........

Do.

Mar 5.................................

206.16

.........do........

.........do........

Do.

Mar. 16.................................

206.16

Mar. 20/23

Apr. 2/23

Apr. 19

Mar 24.................................

206.16

Mar. 31/23

..........do........
Do.

Mar 29.................................

206.16

..........do.......

..........do.......

Do.

Some doubt has risen as to when Song Fo & Company was expected to make payments for the molasses delivered.
Exhibit F speaks of payments "at the end of each month." Exhibit G is silent on the point. Exhibit M, a letter of March
28, 1923, from Warner, Barnes & Co., Ltd., the agent of the Hawaiian-Philippine Co. to Song Fo & Company, mentions
"payment on presentation of bills for each delivery." Exhibit O, another letter from Warner, Barnes & Co., Ltd. to Song
Fo & Company dated April 2, 1923, is of a similar tenor. Exhibit P, a communication sent direct by the Hawaiian-
Philippine Go. to Song Fo & Company on April 2, 1923, by which the Hawaiian-Philippine Co. gave notice of the
termination of the contract, gave as the reason for the rescission, the breach by Song Fo & Company of this condition:
"You will recall that under the arrangements made for taking our molasses, you were to meet our accounts upon
presentation and at each delivery." Not far removed from this statement, is the allegation of plaintiff in its complaint
that "plaintiff agreed to pay defendant, at the end of each month upon presentation of accounts."

827

VOL. 47, SEPTEMBER 16, 1925

827

Song Fo & Co. vs. Hawaiian-Philippine Co.

Resolving such ambiguity as exists and having in mind ordinary business practice, a reasonable deduction is that Song
Fo & Company was to pay the Hawaiian-Philippine Co. upon presentation of accounts at the end of each month.
Under this hypothesis, Song Fo & Company should have paid for the molasses delivered in December, 1922, and for
which accounts were received by it on January 5, 1923, not later than January 31 of that year. Instead, payment was
not made until February 20, 1923. All the rest of the molasses was paid for either on time or ahead of time.

The terms of payment fixed by the parties are controlling. The time of payment stipulated for in the contract should
be treated as of the essence of the contract. Theoretically, agreeable to certain conditions which could easily be
imagined, the Hawaiian-Philippine Co. would have had the right to rescind the contract because of the breach of Song
Fo & Company. But actually, there is here present no outstanding fact which would legally sanction the rescission of
the contract by the Hawaiian-Philippine Co.

The general rule is that rescission will not be permitted for a slight or casual breach of the contract, but only for such
breaches as are so substantial and fundamental as to defeat the object of the parties in making the agreement. A
delay in payment for a small quantity of molasses for some twenty days is not such a violation of an essential
condition of the contract as warrants rescission for non-performance. Not only this, but the Hawaiian-Philippine Co.
waived this condition when it arose by accepting payment of the overdue accounts and continuing with the contract.
Thereafter, Song Fo & Company was not in default in payment so that the Hawaiian-Philippine Co. had in reality no
excuse for writing its letter of April 2, 1923, cancelling the contract. (Warner, Barnes & Co. vs. Inza [1922], 43 Phil.,
505.)

We rule that the appellant had no legal right to rescind the contract of sale because of the failure of Song Fo &

828

828

PHILIPPINE REPORTS ANNOTATED

Song Fo & Co. vs. Hawaiian-Philippine Co.

Company to pay for the molasses within the time agreed upon by the parties. We sustain the finding of the trial judge
in this respect.

3. On the basis first, of a contract for 300,000 gallons of molasses, and second, of a contract imprudently breached by
the Hawaiian-Philippine Co., what is the measure of damages? We again turn to the facts as agreed upon by the
parties.

The first cause of action of the plaintiff is based on the greater expense to which it was put in being compelled to
secure molasses from other sources. Three hundred thousand gallons of molasses was the total of the agreement, as
we have seen. As conceded by the plaintiff, 55,006 gallons of molasses were delivered by the defendant to the
plaintiff before the breach. This leaves 244,994 gallons of molasses undelivered which the plaintiff had to purchase in
the open market. As expressly conceded by the plaintiff at page 25 of its brief, 100,000 gallons of molasses were
secured from the Central North Negros Sugar Co., Inc., at two centavos a gallon. As this is the same price specified in
the contract between the plaintiff and the defendant, the plaintiff accordingly suffered no material loss in having to
make this purchase. So 244,994 gallons minus the 100,000 gallons just mentioned leaves as a result 144,994' gallons.
As to this amount, the plaintiff admits that it could have secured it and more from the Central Victorias Milling
Company, at three and one-half centavos per gallon. In other words, the plaintiff 'had to pay the Central Victorias
Milling Company one and one-half centavos a gallon more for the molasses than it would have had to pay the
Hawaiian-Philippine Co. Translated into pesos and centavos, this meant a loss to the plaintiff of approximately
P2,174.91. As the conditions existing at the central of the Hawaiian-Philippine Co. may have been diff erent than
those f ound at the Central North Negros Sugar Co., Inc., and the Central Victorias Milling Company, and as not alone
through the delay but through expenses of

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829

Song Fo & Co. vs. Hawaiian-Philippine Co.

transportation and incidental expenses, the plaintiff may have been put to greater cost in making the purchase of the
molasses in the open market, we would concede under the first cause of action in round figures P3,000.

The second cause of action relates to lost profits on account of the breach of the contract. The only evidence in the
record on this question is the stipulation of counsel to the effect that had Mr. Song Heng, the manager of Song Fo &
Company, been called as a witness, he would have testified that the plaintiff would have realized a profit of
P14,948.43, if the contract of December 13, 1922, had been fulfilled by the defendant. Indisputably, this statement
falls far short of presenting proof on which to make a finding as to damages.

In the first place, the testimony which Mr. Song Heng would have given undoubtedly would follow the same line of
thought as found in the decision of the trial court, which we have found to be unsustainable. In the second place, had
Mr. Song Heng taken the witness-stand and made the statement attributed to him, it would have been insufficient
proof of the allegations of the complaint, and the fact that it is a part of the stipulation by counsel does not change
this result. And lastly, the testimony of the witness Song Heng, if we may dignify it as such, is a mere conclusion, not a
proven fact. As to what items make up the more than P14,000 of alleged lost profits, whether loss of sales or loss of
customers, or what not, we have no means of knowing.

We rule that the plaintiff is entitled to recover damages from the defendant for breach of contract on the first cause
of action in the amount of P3,000 and on the second cause of action in no amount. Appellant's assignments of error
are accordingly found to be well taken in part and not well taken in part.

Agreeable to the foregoing, the judgment appealed from shall be modified and the plaintiff shall have and recover
from the defendant the sum of P3,000, with legal interest

830

830

PHILIPPINE REPORTS ANNOTATED

Orencia vs. Araneta Diaz

from October 2, 1923, until payment. Without special finding as to costs in either instance, it is so ordered.

Avanceña, C. J., Johnson, Street, Villamor, Ostrand, Johns, Romualdez, and Villa-Real, JJ., concur.

Judgment modified. SONG Fo & COMPANY vs. HAWAIIAN PHILIPPINE Co., 47 Phil. 821, No. 23769 September 16,
1925